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HomeMy WebLinkAbout10 - Renewal of Corona del Mar Farmers Market4e�EW �Rr O A U 2 •°�aroa��� CITY OF NEWPORT BEACH COMMUNITY AND ECONOMIC DEVELOPMENT PLANNING DEPARTMENT 3300 NEWPORT BOULEVARD NEWPORT BEACH, CA 92658 (949) 644 -3200; FAX (949) 644 -3250 Hearing Date: Agenda Item No.: Staff Person: REPORT TO THE MAYOR AND CITY COUNCIL SUBJECT: Renewal of Corona del Mar Farmers Market May 10, 1999 1Q Daniel R. Trimble (949) 644 -3230 SUGGESTED ACTION: Approve Third Amendment to Encroachment Agreement, which allows for annual renewal by the City Manager up to ten years Background The Corona del Mar Farmers Market was authorized by the City Council on May 13, 1996 and opened Saturday morning May 18, 1996 in the municipal parking lots at Marguerite Avenue and Bayside Drive. It has been open Saturdays from 9:00 a.m. until 1:00 p.m. each week since that time. • In the first weeks of operation, there were minor issues faced by the City including a few complaints of patrons parking illegally to shop at the market and an incident of produce waste having been deposited in the City trashcans. These incidents were rectified in the early weeks of the market, and have not continued to be problems. The market managers, Rick and Sandy Heil, have complied with the encroachment agreement in all matters including: the payment of monthly lease payments prior to due dates, complete clean up after the weekly market, assurance of only certified producers represented at the market and provision of certified producer certificates to the City for each vendor, the regular posting of "Farmers Market Parking" signs on two nearby bank lots as originally agreed, and continuous on- site management for the duration of the market each week. The managers have carefully maintained the market, often avoiding problems such as double parking by patrons through friendly presence and interaction. The Corona del Mar Farmers Market has been popular in the community since its beginning. The market is a neighborhood gathering place which the community seems to have embraced as its own. The same farmers sell each week in the same locations. They are courteous and helpful, ready to make selections for the customers or to recommend recipes for their produce. Annual Review The existing Encroachment Agreement between Rick Heil and the City of Newport Beach operates . on a one -year term, and has been renewed annually by the City Manager for the past two years and Renewal of Comm del Mar Farmer's Market May 10, 1999 Page I is due to expire on May 17, 1999. The proposed Third Amendment to Encroachment Agreement continues to operate on a one -year term cycle and would allow for up to ten (10) additional one- year terms upon approval by the City Manager. Please note that the amendment text will call for . twelve (12) additional one (1) year terms. This takes into account the 1997 and 1998 extensions that have already occurred. Analysis The City's experience with the Corona del Mar Farmers Market within the first three years of operation has been favorable. The market managers have abided by the encroachment agreement, doing more than the minimum requirements to assure the success of the market. The Corona del Mar community has continuously and enthusiastically supported the market. The revised agreement would permit continued operation of the market through 2009 with an annual staff review of agreement compliance, insurance documentation, growers certificates, and agricultural and health permits. Submitted by: SHARON Z. WOOD Assistant City Manager Prepared by: DANIEL R. TRUVIBLE Associate Planner Attachments: Corona del Mar Farmers Market Encroachment Agreement Proposed Third Amendment to Encroachment Agreement F:\Users\PLN\Shared\FRMRSMK\CDMFM99.doe Page 2 • ENCROACHMENT AGREEMENT COPY 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 consbIAon and the laws of the State of California, hereinafter `City and Rids Heil, an irervidual, 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 regulat5ons, 3 California Code of Regulations Section 1392.1, et seq. (hereinafter 'Certified Farmers Market'): and, B. Permittee has requested the use of a public parking lot owned by the City of Newport Beach located at the comer of Marguerite Avenue and Bayside Drive, and the smaller municipal lot across and including a portion of Larkspur Street, in Corona Del Mar, Newport Beach, ('Encroachment Area, as depicted on attached Exhibit A; and. • C. Perrmi:tee 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 on April 8, 1996, authorized staff to negotiate an Agreement with Permittee - - --- for- theproposed-Cert�fred- Farmers Market; and-approved this- Agreement— on May 13, 1996; 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 fast 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 CaLforria. Departrment of Agriculture, the Orange County Agricultural Commissioner, the Orange County Health Department, and the City of Newport Beach. 3 B. Permittee shall submit for review and obtain approval for all advertising • and directional signage from the Public Works Department and the Planning Department. 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 Farmers 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. Section 4. Conditions of O ration. A. The Certified Farmers Market may operate each Saturday from 9:00 a.m. to 1:00 p.m., commencing on May 18, 19%. 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 7:30 a.m. Permittee shall ensure that the Encroachment Area is returned, clean and free of debris, to its original condition by no later than 3:00 p.m. on the same day. 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 whichresuit -- -- 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. C. Permittee shall operate the Certified Farmers Market in accordance with all appricable 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 and 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 conceming 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 w 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 Markel as set forth below W Set up shall include placement of vendors in accordance with the approved site plan; (ii) 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 property 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. 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). Food items shall not be processed, cooked or packaged on site. Prepared food items shall not be sold for on -site consumption. 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 at the Certified Farmer's Market L. The Certified Farmer's Market shall not create a significant impact to ebsting City police services, as determkied by the City Chief of Police. The Permittee may be required to secure a private security guard or 6 guards and/or reimburse the City for additonal 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. Section 5. Iertn. The term of this Agreement shall be for a period of one year. The first Certified Farmers Market will begin on May 18, 19%, and continue on each Saturday through May 17, 1997. At least thirty (30) days before the expiration of this Agreement or any extension thereof, the City Manager of the City, at his or her sole discretion, may 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: At any time, without cause upon the giving of thirty (30) days writ:n notice of termination to City; or B. By City: 0 At any time, without cause upon the giving of thirty (30) days wriVen 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 Fanners 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 o! 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 Encroachmerd Area pursuant to this Agreement, issued by companies acceptable to the City Risk Manger, and which are admitted and authorized to do business in Cafr`omia 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 0 . form to meet all applicable requirements of the California tabor Code, Section 3700 et seq. B. Comorehensive 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 Iess 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). 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 accomplishedunless-and un!R 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 Suhmgation 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 shalt be subject to periodic review by City. City is authorized, but not required, to reduce or GI 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 fight of past claims against City, inflation, or any other item reasonably related to City's risk. 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 sha!I be employees of Permittee and not employees of City. Permittee shall pay all salares 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 wM all federal and state statutes and regulations relating to the employe rlemployee relationship including but not limited to, minimum wage, non - discrimination, equal opportunity, Worker's • Compensation, hazardous/unsanitary or dangerous surroundings, the Fair La 2andards Ad, 29 U.S.C, 201, et 2M, and the Immigration Reform and Control Act of 1986• Section 14. — No Third Party Rights— The -Parties4atend41ot- torreate fights 4-+ - - 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 shalt 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: Rick Heil 104 South Cla Vista San Clemente, California 92672 Any such notices and written communications by mail shall be conclusively deemed to have been received by the addressee three (3) worfang days after the • deposit thereof in the U.S. mail, first class postage prepaid and property 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 dale it is signed by both parties. Section 17. NoDresumption Re: Drafter. The parties acknowledge and agree that the terns 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. hiodication 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. ALdhor$y to Execute. The person or persons executing this Agreement on behalf of Permittee warrants and represents that helsheAhey has/have the authority to execute this Agreement on behalf of his/her/iheir corporation, partnership, business, or govemmental entity and warrants and represents that • helshe/they has/have the authority to bind Permittee to the performance of its obligations hereunder. 9 Section24. 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. 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 $170.00 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 Certfed Farmer's Market in Corona del Mar. This agreement cannot be sold, traded, assigned or otherwise transferred by the Permit:ee. 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: S /7 — . 1996 Dated: s —/�L , 1996 . bVnxid ,ad,s ray u.19% Permittee — — --Rick City of Newport Beach VVIMISK Approved As To Form Opolmme re 44, M, /D I� LJ • AMENDMENT TO ENCROACHMENT AGREEMENT • THIS AMENDMENT is made and entered into by and between the CITY OF NEWPORT BEACH, hereinafter "City" and RICK HEIL, hereinafter "Permittee" to amend that certain Encroachment Agreement between the parties dated May 17, 1996. RECITALS A. Section 5 of the Encroachment Agreement permits the City Manager to extend the Agreement for an additional one (1) year term. B. Section 26 of the Encroachment Agreement provides that Permittee shall pay fees in the amount of $170.00 per month commencing after the first ninety (90) days of operation. AGREEMENT NOW THEREFORE the parties wish to amend the Encroachment Agreement as follows: 1. The Encroachment Agreement is hereby extended for one (1) additional one (1) year term, through and including May 16, 1998. 2. Section 26 shall be amended to provide that the Permittee shall pay is $130.00 per month, commencing June 1997 through May 1998. 3. All other terms and conditions of the Encroachment Agreement remain in full force and effect. C� The parties have executed and approved this amendment to Agreement effective as of the date written below. Dated: , 1997 Dated: , 1997 RLC:kh fAcatkriskagrlheil- enc.doc - 4/97 1 Permittee RICK HEIL City of Newport Beach KEVIN MURPHY Approved as to form: ROBIN L. CLAUSON Assistant City Attorney' SECOND AMENDMENT TO ENCROACHMENT AGREEMENT THIS Amendment is made and entered into by and between the CITY OF NEWPORT BEACH, hereinafter "City' and RICK HEIL, hereinafter "Permittee" to . amend that certain Encroachment Agreement between the parties dated May 17, 1996. RECITALS A. Section 5 of the Encroachment Agreement permits the City Manager to extend the Agreement for two (2) additional one (1) year terms. B. The Encroachment Agreement was amended on May 5, 1997, to extend the Agreement for one (1) year and adjust the monthly fees to $130.00 per month. AGREEMENT NOW THEREFORE the parties wish to amend the Encroachment Agreement as follows: 1. The Encroachment Agreement is hereby extended for one (1) additional one (1) year term, through and including May 16, 1999. 2. All other terms and conditions of the Encroachment Agreement and the May 5, 1997 Amendment remain in full force and effect. • The parties have executed and approved this amendment to Agreement effective as of the date written below. Dated: 5, 1998 Per/miittte_e' RICKr HEIL ��- Dated: `i 1998 City of Newport Beach MUR Ap to form: ROBIN L. CLAUSON RLC:ks Assistant City Attorney f:\ cat \aglks\HeilEncrcachmtAgrmt.doc (04- 22 -98) �a 1] THIRD AMENDMENT TO ENCROACHMENT AGREEMENT • THIS Amendment is made and entered into by and between the CITY OF NEWPORT BEACH, hereinafter "City" and RICK HEIL, hereinafter " Permittee" to amend that certain Encroachment Agreement between the parties dated May 17, 1996. RECITALS A. Section 5 of the Encroachment Agreement allows for the extension of the Agreement for two (2) additional one (1) year terms. B. The Encroachment Agreement was amended on May 8, 1998, to extend the Agreement for one (1) year. NOW THEREFORE the parties wish to amend the Encroachment Agreement as follows: Section 5 shall be amended to read: "Term. The term of this Agreement shall be for a period of one year. The first Certified Farmers Market will begin on May 18, 1996, and continue on each Saturday through and including May 16, 1997. At least thirty (30) days before the expiration of this Agreement or any extension thereof, the City Manager of the City, at his or her sole discretion, may extend for up to twelve (12) additional one year terms." • 2. The Encroachment Agreement is hereby extended for one (1) additional one (1) year term, through and including May 16, 2000. The parties have executed and approved this amendment to Agreement effective as of the date written below. Dated: , 1999 Dated: , 1999 Permittee RICK HEIL City of Newport Beach HOMERBLUDAU Approved as to form: ROBIN L. CLAUSON Assistant City Attorney F: 1Us en\PLN\Shmd \FRMRSMK\THIRDAMEMKDM.dm %3