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HomeMy WebLinkAboutC-3098 - McFadden Place & West Balboa Boulevard• 0 AMENDMENT TO ENCROACHMENT AGREEMENT THIS Amendment is made and entered into by and between the CITY OF NEWPORT BEACH, hereinafter "City" and LAWRENCE NEDEAU, hereinafter "Permittee° to amend that certain Encroachment Agreement between the parties dated May 26, 1999. RECITALS A. Section 5 of the Encroachment Agreement allows for the extension of the Agreement for two (2) additional one (1) year terms. AGREEMENT NOW THEREFORE the parties wish to amend the Encroachment Agreement as follows: The Encroachment Agreement is hereby extended for one (1) additional one (1) year term, through and including May 8, 2001 2. Section 26 Lease Fees shall be amended to read: "The Permittee shall pay the City $130.00 per month, due and payable on the first of each month" The parties have executed and approved this amendment to Agreement effective as of the date written below. Dated: C S /, 2000 Dated: 6 C 'a, 2000 F: \Usen\PLN\Sh=d\FRM RSM K\M CFAMEND2000M CF.doe Permute RENCE NEDEAU City of Newport Beach m e'Z �. i . k 11 : �Af Approved Ag to form: ROBIN L. CLAUSON Assistant City Attorney i CITY OF NEOORT BEACH COMMUNITY AND ECONOMIC � o Hearing Date: May 9, 2000 DEVELOPMENT i PLANNING DEPARTMENT Agenda Item No.: 20 3300 NEWPORT BOULEVARD Staff Person: Daniel R. Trimble C'CI FORrr NEWPORT BEACH, CA 92658 (949) 644 -3230 (949) 644 -3200; FAX (949) 644 -3250 REPORT TO THE MAYOR AND CITY COUNCIL PROJECT: Renewal of McFadden Place Farmers Market Agreement(Ht SUGGESTED ACTION: 1. Approve First Amendment to the Encroachment Agreement, which allows for annual renewal by the City Manager for up to three one year terms. 2. Review the current monthly lease amount, and a. Reduce the monthly lease payment to $130 year round, or b. Reduce the monthly lease payment to $130 during from November to February only, or c. Make no change to the monthly lease amount 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. In April 1999, the Orange County Farm Bureau notified the City that they were closing the market. Subsequently, Mr. Larry Nedeau the former market manager for the OCFB, requested and received approval to reopen the market as an independent operator. In October 1999, Staff conducted a six - month review as part of the conditions of approval and submitted a report to the City Council. Community & Merchant Suaaort Early after the opening of the Farmers Market on July 30, 1996, there were periodic phone inquiries and complaints by nearby merchants. In 1997, petitions were circulated and signed by sixteen merchants and employees requesting the removal of the Farmers Market due to parking demand in the summer. Summer is also the peak season for fruits and vegetables sold at the Market. To address the conflict 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 summers of 1998 or 1999. McFadden Place Farmers Market Renewal May 9, 2000 Page I 0 0 During the 1997 renewal process, customer petitions also 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 had also received several calls for community members inquiring why the market was closed during the April 1999 management transfer from the OCFB to Mr. Nedeau. Lease Amount Staff has received a request from Mr. Nedeau that his lease payments be reduced from the current $330 per month to the same amount currently paid by the Corona del mar Farmer's Market of $130 per month. If there is not agreement for a year round reduction, then Mr. Nedeau has suggested an alternative of a lower lease amount of $130 during the slower autumn and winter months from October to February. This would mean that the lease payment, which is based roughly on the revenue the City forgoes by having the market operate in the City parking lot, would be more in line with lower parking demand during the off season. 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 to be in favor of the market remaining open. Staff does have some concern about the long -term viability of the market considering the reduced demand during off season and believes that the request for a lower lease amount is appropriate to ensure the continued operation of this community benefit. For these reasons staff is recommending that the Amendment to the Encroachment Agreement be approved permitting annual renewal by the City manager for up to three one year terms and that the lease amount be reduced to $130 year round. Submitted by: SHARON Z. WOOD Assistant Prepared by: DANIEL R. TRIMBLE Associate Planner Attachments: Amendment to the Encroachment Agreement Letter from Mr. Nedeau F:\Users\PLMShared\FRMRSMK\MCF\MCFFMRENEW20DO.doc Page 2 April 14, 2000 Mayor John Noyes City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92658 Dear Mr. Mayor: I have operated the McFadden Farmer's Market for the last four years both as an employee of the Orange County Farm Bureau and most recently as an independent operator. I am also one of the vendors at the market in Corona del Mar. During that time I have had the pleasure of meeting and serving many Newport Beach residents and merchants each and every Tuesday and Saturday morning. The reason for my letter today is to formally request a reduction in the market's monthly lease payment to $130, which I believe is the amount the City charges the market in Corona del Mar. Although, the market does reasonably well during the summer, it has struggled to make ends meet during the late fall and winter. Even a lower payment during the slower months would be a great help. I appreciate the opportunity to continue serving the City and its resident's and look forward to your consideration of my request. Sincerely, Larry Nedeau Market Operator, McFadden Farmer's Market 20 Cabrillo Newport Beach, CA 92663 AMENDMENT TO ENCROACHMENT AGREEMENT THIS Amendment is made and entered into by and between the CITY OF NEWPORT BEACH, hereinafter "City" and LAWRENCE NEDEAU, hereinafter ` Permittee" to amend that certain Encroachment Agreement between the parties dated May 26, 1999. RECITALS A. Section 5 of the Encroachment Agreement allows for the extension of the Agreement for two (2) additional one (1) year terms. AGREEMENT NOW THEREFORE the parties wish to amend the Encroachment Agreement as follows: The Encroachment Agreement is hereby extended for one (1) additional one (1) year term, through and including May 8, 2001. The parties have executed and approved this amendment to Agreement effective as of the date written below. Dated: , 2000 Dated: , 2000 F: \Usem\PLN\Sh=d\FRMRS MK\MCFlAMEND2000MCF.da Permittee LAWRENCE NEDEAU City of Newport Beach HOMERBLUDAU Approved as to form: ROBIN L. CLAUSON Assistant City Attorney CITY OF NE *bRT BEACH COMMUNITY AND ECONOMIC Hearing Date: October 25, 1999 DEVELOPMENT u` PLANNING DEPARTMENT Agenda Item No.: 20 a. 3300 NEWPORT BOULEVARD Staff Person: Daniel R. Trimble NEWPORT BEACH, CA 92658 (949) 644 -3230 (949) 644 -3200; FAX (949) 6443250 REPORT TO THE MAYOR AND CITY COUNCIL Off 2r: PROJECT: McFadden Place Farmers Market Agreement Review- ` SUGGESTED ACTION: Receive and file. 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. In April 1999, the Orange County Farm Bureau notified the City that they were closing the market. Subsequently, Mr. Larry Nedeau the former market manager for the OCFB, requested and received approval to reopen the market as an independent operator. One of the conditions of approval was for staff to conduct a review of the markets operation following six months of operation. Complaints and Parking Problems During the first year of operation there were numerous complaints from nearby merchants and some residents regarding the Farmers Market. Many of those complaining stated their opposition in the summer months only due to parking conflicts. 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 am. 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. After the resolution of this issue including some improved signage no further complaints, parking or otherwise, have been filed with the police department or traffic engineering during the summer of 1998 or during the most recent six months of operation. Analysis . Mr. Nedeau has operated the Farmers Market for several years as the market manager for the OCFB and most recently as an independent operator. Although there have been occasional issues that staff McFadden Place Fa omen Madmt Agreement Review October 25, 1999 Page I • i 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. After a slow reopening in May the market had a successful summer season. As of October 19, Mr. Nedeau is current on all fee payments for the use of the lot. Submitted by: SHARON Z. WOOD Assistant City Manager F: %Users\PLN\Shared\FRMRSM K\MCFFM99Review.dm Prepared by: DANIEL R. TRIMBLE Associate Planner 1 - Page 2 \_ 0 ENCROACHMENT AGREEMENT C. -3a�g • ��;r `Cc yla4�g4 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 0 9 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. K 0 0 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; (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 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 0 0 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 prepared on site. Processed, cooked or prepared food items shall not be sold for on- site consumption. I 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: Ell 0 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). 5 0 0 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. R 0 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 sea., 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 0 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 • • 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: )` 1999 Dated: , Per ee Lawrence Nedeau 1999 City f Newport Beach City Manager ApRroved As To Form Robin L. Clauson Assistant City Attorney F:\ users\ cat\ shared \da\ Encroachment \NedeauFarmersMktClean.doc 04 -20 -99 0 40 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of County of No. 5907 v On *k.,t, 9 before me, , 0-6'u;. 1 ' 0_D.. D TE NAME, TITLE OF OFFICER - E.G., "JANE DOE, N* ARY PUBLIC - personally appeared L, „L264 yyt` h. Zh..1 NAME(S) OF SIGNER(S) ❑ personally known to me - OR - proved to me on the basis of satisfactory evidence to be the persoryW whose named) is /afe° subscribed to the within instrument and ac- knowledged to me that he /sbeI44eq- executed the same in his /4e*,44e+F- authorized capacity(;�j, and that by hisM4e+4hetr OFFICIAL SEAL si nature /won the instrument the person kW, � VIRGINIAA VARIN N g �°1 p "'�°1' NOTARYPUBLIC- CALIFORNIA or the entity upon behalf of which the COMMISSION 111432” C y p ORANGecouNTY persoryksracted, executed the instrument. My COMMI 1 July 20.2001 WITNESS my hand and official seal. SIGNATURE OF NOTARY OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER ❑ INDIVIDUAL ❑ CORPORATE OFFICER TITLE(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ❑ ATTORNEY -IN -FACT ❑ TRUSTEE(S) ❑ GUARDIAN /CONSERVATOR ❑ OTHER: SIGNER IS REPRESENTM NAME OF PERSON(S) OR ENTITY(IES) DESCRIPTION OF ATTACHED DOCUMENT TITLE OR TYPE OF DOCUMENT NUMBER OF PAGES DATE OF DOCUMENT SIGNER(S) OTHER THAN NAMED ABOVE ©1993 NATIONAL NOTARY ASSOCIATION • 8236 Remmel Ave., P.O. Box 7184 • Canoga Park, CA 91309 -7184 ti�Po o ^�m PROJECT: CITY OF N*ORT BEACH COMMUNITY AND ECONOMIC DEVELOPMENT PLANNING DEPARTMENT 3300 NEWPORT BOULEVARD NEWPORT BEACH, CA 92658 (949) 644 -3200; FAX (949) 644 -3250 SUGGESTED ACTION: Background Hearing Date: Agenda Item No.: Staff Person: REPORT TO THE MAYOR AND CITY COUNCIL McFadden Place Farmers Market Agreement ( 3,') C -3>5 y April 26, 1999 14 Daniel R. Trimble (949) 644 -3230 APPROVED 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. 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. Larry 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 Fanners Ma&et Agreement April 26, 1999 Page I 0 0 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 Sled 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 \WIS_I \SYS\Users\PLN\Shared\FRMRSM K\MCFFM99.doc Page 2 0 0 0 0 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 0 0 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. N 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. SF. 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; (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 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 0 0 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: • 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 Califomia 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). 5 • ! 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. • N 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. • E i • 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 is 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: ,1999 Permittee 0 Lawrence Nedeau Dated: '1999 City of Newport Beach Approved As To Form Robin L. Clauson Assistant City Attorney 0 City Manager F:\ users \cat\shared\da\ Encroachment \NedeauFarmersMktClean.doc 04 -20 -99 N t S , ,r %fit• �,�,� ; � :� � . n J a y SP n .�� • sf � � Q S r al std c' 2sr E y.. u ..i'��aP f,. .� /b• YC'':- r f. �f� r. Vic. .. �.ij'a SECOND AMENDMENT TO ENCROACHMENT AGREEMENT This Second Amendment is made and entered into by and between the CITY OF NEWPORT BEACH, (hereinafter "CITY ") and ORANGE COUNTY FARM BUREAU, (hereinafter "Permittee' to amend that certain Encroachment Agreement between the Parties dated July 25, 1996 and amended September 22, 1997. RECITALS A. The Encroachment Agreement was renewed for one (1) year on September 22, 1997. B. City and Permittee wish to renew the Encroachment Agreement for a period of one (1) year. AGREEMENT NOW THEREFORE, the Parties wish to amend the Encroachment Agreement as follows: 1. The Encroachment Agreement is hereby extended for one (1) year, through and including September 22, 1999. 2. Section 3(B) shall be amended to read: Permittee shall submit for review and obtain approval for all advertising and directional signage from 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. 3. All other terms and conditions of the Encroachment Agreement remain in full force and effect. 1 a • The Parties have executed and approved this Second Amendment to Encroachment Agreement effective as of the date written below. Dated: S� I Dated: APPROVED AS TO FORM: Robin L. Clauson, Assistant City Attorney F: kcal\ SharedXdalEncroach %OCfarmBureau.doc 09 -09-98 ORANGE COUNTY FARM BUREAU rmittee, O nge County Farm Bureau Larry Nedeau, Market Manage CITY OF NEWPORT BEACH Dennis Danner, Interim City Manager ANIEVENT TO ENCROACHMENT AG "'EMENT THIS AMENDMENT is made and entered into by and between the CITY OF NEWPORT BEACH, hereinafter "City" and ORANGE COUNTY FARM BUREAU, hereinafter " Permittee" to amend that certain Encroachment Agreement between the parties dated July 25, 1996. RECITALS A. The Encroachment Agreement was renewed for 60 days on August 4, 1997. B. City and Permittee wish to renew the Encroachment Agreement for a period of one year. AGREEMENT NOW THEREFORE the parties wish to amend the Encroachment Agreement as follows: The Encroachment Agreement is hereby extended for one year, through and including September 22, 1998. 2. Section 3 shall be amended to provide that Permittee shall maintain agreement with property owner and tenant in order to provide accessible customer parking at the private parking lot at 2000 West Balboa Blvd, and provide evidence of such agreement to City. 3. All other terms and conditions of the Encroachment Agreement remain in full force and effect. The parties have executed and approved this amendment Agreement effective as of the date written below. Dated: , 1997 Permittee, Orange County Farm Bureau ORANGE COUNTY FARM BUREAU Larry Nedeau, Market Manager Dated: , 1997 City of Newport Beach Kevin Murphy Approved As To Form City Attorney �/Ea�vog,r CITY OF NEWPORT BEACH Hearing Date: COMMUNITY AND ECONOMIC DEVELOPMENT Agenda Item No.: PLANNING DEPARTMENT Staff Person: 33w NEWPORT BOULEVARD NEWPORT BEACH, CA 92658 (74) 644-3200: FAX (7'4) 644-3250 REPORT TO THE MAYOR AND CITY COUNCIL Christy Teague (714) 644 -3207 SUBJECT: McFadden Place Certified Farmers Market Renewal SUGGESTED ACTION: Renew Agreement for the Certified Farmers Market in McFadden Place Parking Lot 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. The agreement provided for the City Manager to approve a one- year extension at least 30 days prior to expiration. At that time, the Orange County Farm Bureau was considering a different, private location, and did not request renewal. The Orange County Farm Bureau has since requested renewal at the same location in the McFadden Place Parking Lot for another one -year tern. On August 4, 1997, the City Manager signed a 60 day renewal amendment to the encroachment agreement allowing the market to continue until review by the City Council. The City Council review has become necessary due to the terms of agreement requiring the City Manager to approve 30 days prior to the July 30 expiration as well as some controversy surrounding the Farmers Market at its current location. ISSUES The primary issue is that of parking. The Farmers Market is located on one of the most heavily -used lots in the City, especially during peak Summer months. One of the parking- related problems at the time the City Manager could have approved the renewal was lack of availability of the offsite parking at the former Savannah's Hut lot. This lot was designated for parking upon approval of the original agreement, but became inaccessible upon the closing of Savannah's Hut. The Orange County Farm Bureau has recently obtained approval and access by the owner and the new tenant to allow customer parking in the lot located at 2000 W. Balboa Boulevard. Letters from the owner, Bob Roubian, and the tenant, Terry Sheward, are attached for your review. - 1 - 0 0 Since the opening of the Farmers Market on July 30, 1996, there have been periodic phone inquiries and complaints by nearby merchants. In March, and again in May, petitions were circulated and signed by sixteen merchants and employees requesting the removal of the Farmers Market due to parking demand, especially during the Summer season. At the time of this writing there have been no complaints received since the 60 day extension was approved on August 4, 1997. As the one year agreement approached expiration, customer petitions circulated in support of the Farmers Market at the present location, with 517 unverified signatures. There have also been several phone calls of support received by local residents and a few by local merchants. Examples of the petitions are attached for your review. Most of the calls of support have heralded the Farmers Market as a community event bringing together peninsula residents. Of those complaining of the Farmers Market, most have stated their opposition in the Summer months only. This is peak season for fruits and vegetables sold at the 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 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. The original terms of the encroachment agreement will be maintained upon renewal including payment of $330.00 per month to the City for use of the Municipal Parking Lot. It can also be terminated by the City if the terms of the agreement are violated and not corrected within 10 days of written default. The original encroachment agreement is attached for your review. CONCLUSION When the market's future appeared to be threatened, there was a very strong reaction from the community to maintain the McFadden Place Farmers Market at its same peninsula location. The supporters far outnumber the businesses and employees who have expressed concern about the Farmers Market. In recent weeks the Orange County Farm Bureau has been working with concerned businesses and employees to mitigate their parking issues. Due to the strong community support for the Farmers Market and their provision of parking for the use, staff recommends renewal of the encroachment agreement for a second one -year term. Submitted by: Prepared by: SHARON Z. WOOD CHRISTY D. TEAGUE, AICP Assistant City Manager Associate Planner Attachments: Vicinity Map Renewal Request Letter from Orange County Farm Bureau Offsite Parking Letters from Bob Roubian and Terry Sheward Examples of Petitions of Support and Non - Support Original Encroachment Agreement Proposed Amendment to Encroachment Agreement Page 2 0 0 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 the Orange County Farm Bureau, a, non - profit corporation, 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 Marketj; 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 on July 8, 1996, authorized staff to negotiate an Agreement with Permittee for the proposed Certified Farmers Market; and approved this Agreement on 19_; 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. 0 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 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. 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. Section d. 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. 0 0 B. For purposes of this Agreement, Permittee shall be represented by Larry Nadeau, Manager. On any occasion when Nadeau cannot be present during the operation of a Certified Farmers Market, Permittee may provide a substitute qualified representative from the Orange County Farm Bureau to manage the operations, subject to prior approval of the City. 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 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 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: () Set up shall include placement of vendors in accordance with the approved site plan; (i) 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; 3 (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. 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 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. Section 5. Term. The term of this Agreement shall be for a period of one year. The first Certified Farmers Market will begin on July 30, 1996, and continue on each Tuesday through July 29, 1997. At least thirty (30) days before the expiration of this Agreement or any extension thereof, the City Manager of 0 0 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 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 Califomia Labor Code, Section 3700 et seq. 0 0 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). 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. 6 0 0 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. 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 a=, 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. 7 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: Larry Nadeau, Manager Orange County Farm Bureau 3172 Irvine Boulevard Irvine, California 92720 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. 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. 9 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 /shetthey 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. 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. 9 0 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 outside of the Orange County Farm Bureau. 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: , 1996 Permittee Orange County Farm Bureau Dated: 1996 City of Newport Beach Approved As To Form Robert Burnham, City Attorney F:kaAde\ag\market.doc 7 -15 -96 10 Kevin Murphy, City Manager 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 the Orange County Farm Bureau, a, non -profit corporation, 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 Marketj; 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 Areal, 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 on July 8, 1996, authorized staff to negotiate an Agreement with Permittee for the proposed Certified Farmers Market; and approved this Agreement on 19_; 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 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 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. 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. 0 0 B. For purposes of this Agreement, Permittee shall be represented by Larry Nadeau, Manager. On any occasion when Nadeau cannot be present during the operation of a Certified Farmers Market, Permittee may provide a substitute qualified representative from the Orange County Farm Bureau to manage the operations, subject to prior approval of the City. 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 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 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: n Set up shall include placement of vendors in accordance with the approved site plan; (u7 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; 0 0 (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. 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 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. Section 5. Term. The term of this Agreement shall be for a period of one year. The first Certified Farmers Market will begin on July 30, 1996, and continue on each Tuesday through July 29, 1997. At least thirty (30) days before the expiration of this Agreement or any extension thereof, the City Manager of 4 0 0 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 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. 0 0 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 fort 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 m 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. 0 9 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. 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 Pennittee'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 M, 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. 0 0 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: Larry Nadeau, Manager Orange County Farm Bureau 3172 Irvine Boulevard Irvine, California 92720 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. 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. i i 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 orunenforceable, 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. Counter. 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. • 41 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. Mon - 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 outside of the Orange County Farm Bureau. 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: 1996 Permittee Orange County Farm Bureau Dated: 1996 City of Newport Beach Approved As To Form Robert Burnham, City Attorney FAcatldelagNmarket.doc 7 -1596 10 Kevin Murphy, City Manager �Ew UHr r \its; CITY OF NEWP,#' BEACH COMMUNITY AND ECONOMIC DEVELOPMENT PLANNING DEPARTMENT 3Soo NEWPORT BOULEVARD NEWPORT BEACH, CA u1658 ('114) 644',11w: FAX (7,4) 644-3'-So Iii Agenda Item No.: Staff Person: 30 ) Septem 8 Christy Teague (714) 644 -3207 REPORT TO THE MAYOR AND CITY COUNCIL 2 ?7 l SUBJECT: McFadden Place Certified Farmers Market Renewal SUGGESTED ACTION: Renew Agreement for the Certified Farmers Market in McFadden Place Parking Lot 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. The agreement provided for the City Manager to approve a one - year extension at least 30 days prior to expiration. At that time, the Orange County Farm Bureau was considering a different, private location, and did not request renewal. The Orange County Farm Bureau has since requested renewal at the same location in the McFadden Place Parking Lot for another one- vearterm. On August 4, 1997, the City Manager signed a 60 day renewal amendment to the encroachment agreement allowing the market to continue until review by the City Council. The City Council review has become necessary due to the terms of agreement requiring the City Manager to approve 30 days prior to the July 30 expiration as well as some controversy surrounding the Farmers Market at its current location. ISSUES The primary issue is that of parking. The Farmers Market is located on one of the most heavily -used lots in the City, especially during peak Summer months. One of the parking - related problems at the time the City Manager could have approved the renewal was lack of availability of the offsite parking at the former Savannah's Hut lot. This lot was designated for parking upon approval of the original agreement, but became inaccessible upon the closing of Savannah's Hut. The Orange County Farm Bureau has recently obtained approval and • access by the owner and the new tenant to allow customer parking in the lot located at 2000 W. Balboa Boulevard. Letters from the owner, Bob Roubian, and the tenant, Terry Sheward, are attached for your review. - 1 - 0 0 Since the opening of the Farmers Market on July 30, 1996, there have been periodic phone inquiries and complaints by nearby merchants. [n March, and again in May, petitions were circulated and • signed by sixteen merchants and employees requesting the removal of the Farmers Market due to parking demand, especially during the Summer season. At the time of this writing there have been no complaints received since the 60 day extension was approved on August 4, 1997. As the one year agreement approached expiration, customer petitions circulated in support of the Farmers Market at the present location, with 517 unverified signatures. There have also been several phone calls of support received by local residents and a few by local merchants. Examples of the petitions are attached for your review. Most of the calls of support have heralded the Farmers Market as a community event bringing together peninsula residents. Of those complaining of the Farmers Market, most have stated their opposition in the Summer months only. This is peak season for fruits and vegetables sold at the 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 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 closin.g. The original terms of the encroachment agreement will be maintained upon renewal including payment of $330.00 per month to the City for use of the Municipal Parking Lot. It can also be terminated by the City if the terms of the agreement are violated and not corrected within 10 days of written default. The original encroachment agreement is attached for your review. . CONCLUSION When the market's future appeared to be threatened, there was a very strong reaction from the community to maintain the McFadden Place Farmers Market at its same peninsula location. The supporters far outnumber the businesses and employees who have expressed concern about the Farmers Market. In recent weeks the Orange County Farm Bureau has been working with concerned businesses and employees to mitigate their parking issues. Due to the strong community support for the Farmers Market and their provision of parking for the use, staff recommends renewal of the encroachment agreement for a second one -year term. Submitted by: Prepared by: SHARON Z. WOOD CHRISTY D. TEAGUE, AICP Assistant City Manager Associate Planner Attachments: 'icinity Map Renewal Request Letter from Orange County Farm Bureau Offsite Parking Letters from Bob Roub'mn and Terry Shcward Examples of Petitions of Support and Non - Support • Original Encroachment Agreement Proposed Amendment to Encroachment Agreement Page 2 VICINITY MAP A, N �il ,l•, at '„ . • � ` -w � \� �t '`$. - :.�- Aa�,he Odd -•! ". v �. F3 " . �'9J , *-,� m -:y� ((�`�\ \\ � � . .; `.; {{ :�� � .� „,./�►} yam. IL .. s r'��. �`:,� .4u 1� .ice �� .4 � 1 � •.•rte .•- � A4 Tn Y • i� 't �y • � Via'. �- l ,�. jT? • • J ♦ i -1 4 - � � ±c.`. +r /�"�' � 1, •ti�,_ mss` �ry i. ;�: .� ��� t. S 4 f oRAnGE COUfoy • ARM UREAU / 9 �q ■ . ■ ■ ■ 3172 IRVINE BLVD., IRVINE, CA 94620 (7 14) 573 -0374 30 July 1997 Sharon Wood City of Newport Beach Assistant City Manager Community and Economic Development 330 Newport Blvd. Newport Beach, CA 92663 Dear Ms. Wood, The Orange County Farm Bureau requests the City of Newport Beach to extend our current Encroachment Agreement for the Certified Fanners' Market held on Tuesdays at the McFadden Parking Lot for two additional months, beginning the week of August 4'h, 1997. Additionally, The Orange County Farm Bureau wishes to apply for renewal of the annual Encroachment Agreement it has with the City of Newport Beach to continue at our present location at the McFadden Parking lot for another year. Thank you for your consideration and support of this important community event. Market Manager 11Lyr1 .r NNING DEPARTN(Eht DE NEWPORT BEACII t 7997 7i8'9'1U"1 "211j213i4t5PA SERVING ORANGE COUNTY AGRICULTURE SINCE 1918 ■ NON - PROFIT • • LI 0 E 30 July 97 Sharon Wood Assistant City Manager Community and Economic Development 330 Newport Blvd. Newport Beach, CA 92627 Bob Roubian 2200 Newport Blvd. Newport Beach, CA 92663 C: Dear Ms. Wood, This letter is to confirm my authorization to allow auxiliary parking on my property at 2000 W. Balboa Blvd. for Farmers' Market customers. Parking will be permitted during market hours on Tuesdays from 8:OOAM to 1:00PM. Sincerely, Bob Roubian Property Owner 0 ANNLYg DEPARTMENT V OF NEWPORT BEACH AN ` - 01 ;997 7i8'91101ll1121112131415 I July 28, 1997 Christy Teague, Associate Planner 330 Newport Blvd. Newport Beach, CA 92658 Dear Ms. Teague. This letter is to advise you that the Certified Farmers' Market held on Tuesdays at the McFadden Plaza parking lot has my permission to offer additional parking for Market customers from 8:00 a.m. to 1:00 p.m. at 2000 W. Balboa Blvd., Newport Beach, where I currently lease building space. y yours, JARD & ON SONS A. S eward TAS.jsh PLANNING DEPARTMENT OF NEWPORT BEACH JUL 41 S 1 1997 7i8�91�IllIUIlI'�I�i415 8 r • 222 21st street po box 2789 newport beach california 92663 714 - 673 -0760 ca 800 - 432 -7526 LI NI; \l 1101 t BFACII CITY COUNCIL MI[MIILRS CITY 01: NGWI'OR r BEACH NL1%'I`ORT BOULEVARD . NIAVI'ORT MACH. CA <)2(359 0 We are residents. business owners, employees and members of the public who frequent the McFadden Plaza District and we wish to register several complaints against the "Certified Farmers Market ". While we commend the idea ofa I'anners market, McFadden Plaza parking lot is not the appropriate place. Our metered public parking is at a premium during the months of May thru October and our customers, employees and beachgoers must light for it. It is inconceivable to us that the Council chose to rent it away to a private concern (who had secured a private lot of free parking for his own customers) and unforgivable that you did it at a loss of 660.00 per month meter revenue' Would not all have been better served if Mr. Nadeau had obtained the private lot for the market, leaving the public lot an equal opportunity to all the public? Our customers have no parking. As a coastal city, isn't it the Council's responsibility to maintain public access in our area as required by the Coastal Zone Management Act'? From the beginning, Mr. Nadeau has broken the terms of the encroachment agreement. He has allowed the participation otvendors who are selling taxable goods in the form of incense, candles, seashell art, music, beadwork, gift cards, glassware, etc. We have phoned Christy Teague several times regarding the market and as of 3/4/97, two- thirds of the "Certified Farmers Market" consisted of these vendors. Section 3 A and Section 4 C. D in the agreement state that the proper city licenses, Liability Releases and applications must be received by the city prior to participation and the rules of the State, County and City abided by. Since the agreement is for a . growers- direct market (Section J), Mr. Nadeau obviously has not submitted such applications, licenses and releases. We. at McFadden Square, ask that the Council consider us, terminate the encroachment agreement based on the issues mentioned above and return the parking lot to public use. �J NItr.i !I DA Il{ RI SIDFNI'. MI:I?CIVWl'_ h:MPLOYFFORCIISR)MIR ADIMI SS 5 0 CITY OF NEWPORT BEACH 3300 NEWPORT BOULEVARD NEWPORT BEACH, CA 92658 0 DEAR CITY COUNCIL MEMBERS, We would like to request that the encroachment agreement with the Mcfadden Square Fanners Market be terminated. It had been suggested, by those who sponsered it, that the market would be an asset to the businesses in the area by bringing in more people and that parking revenues would increase. With the elimination of 17% (304 spaces) of the available parking every month, the market is a liabilty to us as lack of adequate parking is the major issue in the McFadden Plaza during the peak season (June thru Oct.). Those businesses who sponsered the market into the plaza are not consumer -based and are not dependant on that public access as our businesses are. Additionally, they have obtained free private parking (the Old Spaghetti Factory) for the market customers. This Agreement has eliminated access to our customers and beachgoers while providing free access to the market customers -this does not increase city parking revenues or enhance our businesses! According to Newport's own Local Coastal Program (Ch. 2 Public Access and Circulation, pg.6 #4, pg. 8 under Parking) current policy is to provide maximum public access as well as maximum on street parking. Our businesses are dependant on this public access, especially during the summer months. The Encroachment Agreement is up for renewal soon and we would like our concerns addressed as Summer is now here. Sincerly, SIGNED DATE ADDRESS 27 I j'� Lz�O LJ D c4 �zti .l �' % Jc tu•- �t J �_5 /7 .�LOI -C.'. ��CE�CL i2L�L.� /�� 0vil I y o5/9 h7 a cy w 6ce(,1)loo N.6. ci Date 171'Ireunn1 MembW �'Mana¢er EIVED O — 'M -9 All 36 cc: Council members, City manager. OFFICE OF THE CITY CLERK CITY OF HEWPORT BEACH 9 ro2 --? -� -�" 0 To: The City Council of the City of Newport Beach From: Concerned Residents Ref: Termination of McFadden Square Farmers Market We, the undersigned residents of the peninsula and shoppers at the McFadden Square Farmers Market petition the Newport Beach City Council to reconsider their action not to renew the encroachment permit for the Market. We are dismayed that the Market which has proven popular with local shoppers will be discontinued on very short notice. It is our understanding that the city's action is based in part on a petition of seven indi-viduals/merchants and their employees, which in no way represents the feelings of the community at large. NAME: DATE: - 7//o197 iS 71161 f7 f �il�✓1 . �/Alo 711oly-�- -7/Ip�q -, 7 lad 57 ADDRESS: I �c' 1 W ✓3z >t/>t t 3 r N;j, a /vigy 5t. N0. 713 z4az iti. v(,e��titf- Nr3 �Z�� 3 THIS AMENDMENT is made and entered into by and between the CITY OF NEWPORT BEACH, hereinafter "City" and ORANGE COUNTY FARM BUREAU, hereinafter "Permittee" to amend that certain Encroachment Agrecment between the parties dated July 2s, 1996. RECITALS A. The Encroachment Agreement was renewed for 60 days on August 4, 1997. B. City and Permittee wish to renew the Encroachment Agreement for a period of one Near. AGREEMENT NOW THEREFORE the parties wish to amend the Encroachment Agreement as follows: 1. The Encroachment Agreement is hereby extended for one year, through and including September 22, 1998. 2. Section 3 shall be amended to provide that Permittee shall maintain agreement with property owner and tenant in order to provide accessible customer parking at the private parking lot at 2000 West Balboa Blvd, and provide evidence of such agreement to City. 3. All other terms and conditions of the Encroachment Agreement remain in full fierce and effect. The parties have executed and approved this amendment Agreement effective as of the date written below. Dated: , 1997 Dated: 1997 Permittee, Oran ;oe County Farm Bureau ORANGE COUNTY FARM BUREAU Larry Nedeau, Market Manager City of Newport Beach Kevin Murphy Approved As To Form City Attorney i 0 0 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 the Orange County Farm Bureau, a, non - profit corporation, 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 21 st 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 on July 8, 1996, authorized staff to negotiate an Agreement with Permittee for the proposed Certified Farmers Market; and approved this Agreement on J&,1,4 19�; and, 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. E 0 E 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 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. 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. Section 4. Conditions of Operation. A. The Certified Farmers Market may operate during the term of this Agreement on each Tuesday from 5:00 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. 2 0 0 B. For purposes of this Agreement, Permittee shall be represented by • Larry Nedeau, Manager. On any occasion when Nadeau cannot be present during the operation of a Certified Farmers Market, Permittee may provide a substitute qualified representative from the Orange County Farm Bureau to manage the operations, subject to prior approval of the City. 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. u 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; (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; N 0 (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. 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 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. Section 5. Term. The term of this Agreement shall be for a period of one year. The first Certified Farmers Market will begin on July 30, 1996, and continue on each Tuesday through July 29, 1997. At least thirty (30) days before the expiration of this Agreement or any extension thereof, the City Manager of . 4 0 0 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 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. i i 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). 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. 0 0 0 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. 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, employers 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 s=, 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. 7 0 i 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: Larry Nedeau, Manager Orange County Farm Bureau 3172 Irvine Boulevard Irvine, California 92720 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. 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 Agrgpment. 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. • 8 0 0 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. 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. IN i i 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 outside of the Orange County Farm Bureau. 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: 1996 Dated: , 1996 Approved As To Form RWertBumham,' City Attorney F Ac- at \de\agVnarket.doc 7 -15 -96 10 Permittee O nge ounty Farm Bureau LAW2FnICF 2. NEDrAI.� City of Newport Beach 0 0 Emro CITY OF NE *RT BEACH Odd R�Oy PUNNING /BUILDING DEPARTMENT — t 530o NEWPORT BOULEVARD NEWPORT BEACH. CA 92658 • (T4) 644-32°O, FAX (74) 644-5150 Hearing Data Agenda Item No.: Staff Person: C - �Cl i?f, SUBJECT: MCFADDEN PLACE CERTIFIED FARMER'S July 22, 1996 4 Christy Teague (714) 644 -3207 JUL 2 2 SUMMARY: Agreement to allow weekly Certified Farmer's Market in the municipal parking lot at McFadden Place and West Balboa Boulevard each Tuesday morning from 8:00 a.m. until noon during the Summer months, and 9:00 a.m. until 1:00 p.m. during the remainder of the year. SUGGESTED ACTION: Approve an agreement for a Certified Farmer's Market in McFadden Place. PROPOSAL The Newport Pier Association and the Orange County Farm Bureau are requesting a Certified Farmer's Market in the McFadden Place Municipal Parking Lot located at McFadden Place adjacent to Balboa Boulevard (see attached map). The market proposal is for 25 to 30 farmers to sell produce and • flowers directly to the community on each Tuesday for four hours, from 8:00 a.m. until noon during the Summer, and from 9:00 a.m. until 1:00 p.m. during non -peak seasons. BACKGROUND At its regular meeting on July 8, 1996, the City Council authorized staff to pursue an encroachment and lease agreement with the Orange County Farm Bureau to hold a weekly Certified Farmer's Market at the municipal parking lot described above. ISSUES Parking has been identified as an issue to be addressed in the agreement. In response to the concerns regarding parking issues, the applicant has obtained approval from The Old Spaghetti Factory to use their lot as needed for Farmer's Market parking. The agreement includes a lease fee of $330 per month for use of public property and to offset meter revenue losses in the municipal lots. The City has the ability to revoke approval at any time according to the agreement. A provision for annual review by the City Manager is also included in the agreement. • The issues have been more fully discussed in the attached July 8, 1996 staff report to the City Council and in the attached agreement for City Council approval. -1- I- PUBLIC COMMENTS Consideration of an encroachment and lease agreement does not require public notice. However, a notice was sent prior to the July 8, 1996 meeting as a courtesy due to the proximity of the proposed Fanner's Market to commercial and residential neighborhoods. We have had no response to the notices or to reports in the newspapers of the proposed McFadden Place Farmers Market at the time of this writing. Support letters from nearby business owners, attached to the July 8, 1996 report, are included for your review. The Council has authorized staff to negotiate an encroachment and lease agreement with the applicant for the proposed weekly Certified Farmers Market. The agreement is attached for Council review, alteration as desired, and consideration for approval. Submitted by: N 192 Sharon Z. Wood's Assistant City M ager Community and Economic Development Attachments: Encroachment Agreement (Draft) Vicinity 1, lap City Council Staff Report of July 8,1996 Public Comment Letters Parking Letter from The Old Spaghetti Factory r. \wp5 t\plannmgUmsty�doc Prepared by: Christy D. Tea e, AICP �. Associate Planner VICINITY MAP McFadden Place Fanners Market July 22, 1996 Page • • n u -3oyp 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 the Orange County Farm Bureau, a, non - profit corporation, 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 on July 8, 1996, authorized staff to negotiate an Agreement with Permittee for the proposed Certified Farmers Market; and approved this Agreement on .1h2 19; 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. 9 0 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 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. 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. 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. 01 0 B. For purposes of this Agreement, Permittee shall be represented by Larry Nedeau, Manager. On any occasion when Nadeau cannot be present during the operation of a Certified Farmers Market, Permittee may provide a substitute qualified representative from the Orange County Farm Bureau to manage the operations, subject to prior approval of the City. 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; (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; 3 0 0 (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. 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 prepared on site. Processed, cooked or 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. i 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. Section 5. Term. The term of this Agreement shall be for a period of one year. The first Certified Farmers Market will begin on July 30, 1996, and continue on each Tuesday through July 29, 1997. At least thirty (30) days before the expiration of this Agreement or any extension thereof, the City Manager of 0 0 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 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. N i • 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). 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. 0 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. 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 sea., 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. 0 0 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: Larry Nedeau, Manager Orange County Farm Bureau 3172 Irvine Boulevard Irvine, California 92720 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. 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. 8 0 0 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 orunenforceable, 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. 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. 9 01 E 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- Transferabilft. 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 outside of the Orange County Farm Bureau. 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: ,511. 1996 Dated: , 1996 Approved As To Form t� Rti ert Burnham, City Attorney F: \cat \de\ag \market. doc 7 -15 -96 10 Permittee / O nge ounty Farm Bureat Liawnr -ric>` 2. City of Newport Beach Nf- P A,Ik • EXHIBIT A • VICINITY MAP V A.4 N, JJJ�.i":T T � \• . � Si cn VA ♦ A ClLT-,FZ*. I . �Fp P jo rT A Jl� N 1p "A • • EXHIBIT B Orange County Farm Bureau CERTIFIED FARMERS' MARKET BY -LAWS AND PRODUCERS AGREEMENT Purpose - The Orange County Form Bureau (OCFB) Certified Farmers' Market (CFM) is estcb6shed for the benefit of both growers and consumers. The Mcrket provides growers /producers a convenient and inexpensive direct market outlet, and consumers the opportunity to buy fresh, high quality produce at reasonable prices. Structure - The OCFB Certified Farmers' Market operates in accordance with the regulations published in the California Administrative Code, Title 3, Grasp 4, Article 6.5 on Direct Marketing. The Board of D'uectors of OCFB shall be the governing body of the CFM. Administration of the market shot] be the responsibility of the OCFB Executive Board, who shall supervise the performance of the CFM Manager. Who May Sell - Only those who hold a Certified Producer's Cert ficate issued by the Agricultural Commissioner in the county of origin of the''s produce may sell fn.frfs. nuts, and vegetables. Growers must obtain a Certificate from each county Agricultural Commissioner in which they produce. Producers of eggs, honey, cut flowers and plants, fish, `;esh herbs, dried herbs and `rut (packaged), cnd other items that meet state and local regulations may also sell at the CFM. Non - certified 'items can only be sold with the approval of the CFM Manager. The Manager has the authority and responsibility to decide what types and quantities of non - certifiable items can be sold. The Manager will make such decisions based on experience. quality, need, etc. The Manager may limit the number of sellers with smilar items. Products must be sold by the grower, a member of his /her immediate family, or a paid employee. By Direct Marketing regulations, growers must submit written permission for an employee to soil on behalf of a grower at the CFM. Growers are responsible for the conduct of their employees. One Certified Producer may act for and se,.' for two other Certified Producers. provided their certificates or photo copies are conspicuousy posed in such a manner that they cre dearly identifiable with their produce. Re -Sales and Commissions - No resale of any commodities mcy be made, and no commissions may be paid or received in connection with sales at the Mcrket. Solicitors - Solicitors, peddlers, agents, or unauthorized vendors will not be permitted on the location or d�.--g the operation cf'he CFM. Certified Producer's Certificates - Each grower who is certified is required by law to renew their certificate yearly. Growers MUST furnish C CFB a copy of their certificate im r)ec3oiety upon receiving it from the Agricultural Commissioner, or they will not be allowed to continue operating at the Market. Types of Products - Types of products that may be sold at on OCFB CFM: 1. Certifiable agricultural products: Products sold by producers who hold a Certified Producers Certificate issued by the Agricultural Commisson in the county of origin of their produce. Cert led xro c•mn.c (a�^.n Mma ?rlc�.n mO Poq.c rn �p�eem•m • 0 PRODUCERS AGREEMENT And Conditions on Use of Space 1. Each grower must display their P oducers Certi`ccie ducng ecc market day. 2. Each grower wll occupy space assigned by the CFM Manager. 3. Growers cre to arrive one (1) hour prior to the beginning of the market on the specified Market Day and be ready to sell promptly when the market opens. If the market hours change, growers will arrive no less than one half (1/2) hour before market opening time to be ready to sell promptly when the market opens. Growers cre not tc ecve until sold out OR the market closes. 4. All growers must secure their awnings at once upon crtvcl. Te ^r poles and table legs must have protection so as not to damage asphcit. 5. Each grower must clean their space befcre 'eavirg the market. Failure to clean will res:.it in a $25.00 cecning charge to be cc:d before the nex' market day. 6. The CFM Manager has the richt fa inventory the Iocds before and after each market day. 7. All growers and employees must be propery dressed. Shirts MUST be wom. Growers or employees wearing clothing or items deemed obscene or other -,wse inappropriate will not be allowed to continue to sell at the CFM. 6. Alcoholic beverages SHALL NOT be brouc ^t'o cc consumed - the CFM. 9. producers and sellers will comply with any local, city. county, s- e, or federal regulations which may apply to the sole of their products. Food Stamps - Growers may only cccept food scraps on food hems and food- producing plants and seeds. Growers must return one (S i .00) dalcr coupons and /or coins up to ninety - nine cents (S.99) as change. To prevent fraud. it is suggested thc' growers either see five (S5.00) dollar or ten (S 10.00) dollar coupons ripped from the coupon book or be assured that the serial numbers are the same. Nothing larger thcn a one (S I DQ dollar coupon maybe given as change. Food stamps Wil be redeemed by OCFB as pc of the space fee. Management and Fees - Each cmwer shall fill in such records as required by OCFB and the CFM Manager and shalt pay the fee to 'he use cf cccce BEFORE '_c,-ng t`e premises each market day. The fee (cunenfty 7.5% of gross sales) is determined by the OCFB. All expenses of the CFM including insurance, rent, salaries, taxes, advertisng, promotion. and overhead will be paid by OCFB. Location and Time - A producer, by signing this agreement, will be permitted to sell at o location and time determined by the CFM Manager. Cancellations - Cancellations must be mode 24 hours before maket day. 0 0 cCF6 CerMwC famen'Mtrbr a, 10r aW Pod.cen Ap'�emenl Poge 4 The CFM Mcnegee has fh.e cuth&ty and respons:biiity to edminlster c9 - e rules contained :n these By -Laws and Producers Agreement. The CFM Mcnoger w.'! also r"cde decisicns or. types, vcneties, and amounts of produce or other vendors selling any ore }ype of cc roc: y or other item. Reference may be given to growers based on gross saes cnd /or seniority. . =J decisicns will be made in 'he best interest of the success and prespenty of the CFM, and fcr the benefit of the growers who participate. Non - compliance Penalty and Appeal - V/ofation of any of the stipukmic'ns of these By-Laws cnd Producers Agreement may result in suspension of the privilege of sell '.rc ct the CFM. Accec:s may be in writing to the Orange County Farm Burecus Board of Cirec:crs, 3172 Irvine Blvd.. Irvine, CA 92720, (7)4) 573 -0374. -------------- ------------------- ------------------------------------- (tlefocn Crcnge County Fcrm Bureau Certified Fcrm.ers' Mcrket PRODUCERS AGREEMENT ACKNOWLEDGEMENT FORM Producer: Recse cerefuily read the foregoing By-LckK cnd Procucers Agreement. then sc ^. and return this form. I CERTIFY THAT I HAVE READ THE ORANGE COUNTY FARM BUREAU CERTIFIED FARMERS' MARKET BY -LAWS AND PRODUCERS AGREEMENT AND WILL COMPLY WITH ITS REGUI.ATICNS. Farm or Company City State Zip Business Phone ( Home Phone Print Please ret-rn :he C:','. Vz -,cc_ cr c . Orange County Form Bureau 3172 Irvine Blvd. Irvine, CA 92720 rev CIryA VICINITY MAP TTI 6 • - _ �j - -:` --t IIL is a..•.r'�� '� :rite -11 1 y ` It 1. `,�' , � 10 �. • : •� \; � i jo " � �, .. � '' y � • �.7 0 t its A .I' r•� Nt:Faddcn Plaa Fwncm Market July 8 1996 Page 5 a V 0 April 7, 1996 Jay Garcia Planning Department City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 Dear Jay: a�,�ypORTp��9 4`S90CIAli O� This letter is to provide information on the proposed Farmer's M_'.cet that the Newport Pier Association (NPA) would like to sponsor into our area. • This venture, sponsored by NPA, will compliment our re%italiza .:2 plans of attracting businesses and events with a wide appeal into the �'ewport Pier area. Our local Doryman's m —,'Ket (which has been in existence for 100 years and was the original heart of the city) as well as the local businesses would be enhanced with an additional visitor /consumer client base. . This market would attract both local residents and out of area coa umers. The client base for this venture would come from several local sources: homemakers, retirees, home ba_ed business people, vacationers and visitors. We request approval to designate the southwest ocean front par',ing lot to be the designated area for the Farmers Market. Our plans are to hold the market on Tuesdays year rous' with the following hours: Summer 8:00 - 12:00pm and Non- summer 8:00 - 1:00pm. We feel these weekday hours : euld allow normal resident and visitor parking while attracting new visitors into our area. This parking lot area is especially suited for temporary closures as it allows the foll owing without disruption to ongoing business and visitors: continuous vehicular traffic flow, e—mergency vehicle access; and pedestrian traffic The remaining parking lots on the ocean front and McFadden plv-a would be able to facilitate necessary parking due to the early weekday hours of operation. City parking revenues � ould be increased due to this added attraction. The Orange Count), Farm Bureau brings farm fresh produce to cur local neighborhood and is synergistic with the Doryman's fish market as well as being an enhancement to the other merchants and the City. This direct marketing outlet for our local growers provides an additional market for their produce while bringing a charismatic marketplace attracting a consumer base of health conscious people. The produce is sold directly from the growers vehicles or tables set up on site. r 1 L.J NEWPORT PIER ASSOCIATION 11s Twenty- Second Street • Newport Beach. California 92663 (714) 675 -6442 ao • 0 Page 2 Cities throughout California who have farmer's markets in areas of revitalization have successfully increased consumer attendance into those areas bringing positive exposure and commendable results. We request that our proposal be placed on the Consent Calender for the City Council on April 22, 1996. Should you have any questions, please do not hesitate to contact me at 509 -3707. Sincerely, Marcia Dossey President cc: John Hedges, Mayor . Kevin Murphy, City Manager Jan Debay, Mayor Pro Tem Rush Hill, CEO Chamber ofComme:ce • f\ 9A TA BALALIS CORPORAON 1500 West Balboa, Suite 201 Ke»Z)ort Beach. CA 92663 Phone (714) 6", 3-212821 FAX (714) 673.4286 - ---r P Iq 1?- 5%E-(� . �2 2� "4 t',b m V-.( OL c ?.G "' CF-`.hE�Y � FrChE hG. � pr• 11 1556 �'�57Fh; F: • A T° : C 1 7 / Q 'r Al Vvf /Z fir_ N POST -it, FaaxNO:e 7671 - py�) // ;dos► Co.IDpµ. Gp 7nOnp • �'7 p FM rG C ✓ 1b CANNERX VILLAGE REALTY INC. 2026 W. BALBOA BLVD. NEWPORT BEACH, CALIFORNIA 92663 (714) 673.3777 C JUN -25 -96 TUE 12:25 Pm OSF NEuvuRT BCaCN June 30. 1996 : 14675X526 P.6: TN[w u�L Hs x.0!4311 :• QY'.r -.r To \\lx)m It May Conccrn: Please be ad%iwd that The Old Spagheni Favor} will allots' oeuP.ow Parking for the Farmers Market on Tue;das tnontiup} at \IcFaddcu Square i) ' � ?� Dina Hecker c • • a \I AMEN&NT TO ENCROACHMENT AGAMENT THIS AMENDMENT is made and entered into by and between the CITY OF NEWPORT BEACH, hereinafter "City" and ORANGE COUNTY FARM BUREAU, hereinafter " Permittee" to amend that certain Encroachment Agreement between the parties dated July 25, 1996. RECITALS A. Section 5 of the Encroachment Agreement permits the City Manager to extend the Agreement for up to one (1) additional year term. B. Section 3 of the Encroachment Agreement provides that Permittee shall work with adjacent commercial property owners to reach agreement over the use of parking facilities or develop a shared use parking plan. AGREEMENT NOW THEREFORE the parties wish to amend the Encroachment Agreement as follows: The Encroachment Agreement is hereby extended for an additional 60 days, through and including September 28, 1997. 2. Section 3 shall be amended to provide that Permittee shall maintain agreement with property owner and tenant at 2000 West Balboa Blvd. in order to provide accessible customer parking at that site, and Permitter shall provide evidence of such agreement to City. All other terms and conditions of the Encroachment Agreement remain in full force and effect. The parties have executed and approved this amendment to Agreement effective as of the date written below. Dated: 997 Fum .gsd LARRY NEDEAU, Market Manager Dated: 1997 City of Newport Beach K M RP vtrm: ROBIN L. CLAUSON Assistant City Attorney CWF'1CA* OF: 114 ISSUE CATE (MMIDDIM ...NeE 07/25/96 PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND 4ILL KUDICK - ALFARM INSURANCE AGENCY CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE T AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE DOES NO IES W BELO. 2469 POMONA RINCON ROAD CORONA CA 91720 COMPANIES AFFORDING (909) 278-1388 COMPANY A LETTER CALFARM INSURANCE COMPANY B LETTER INSURED DRANGE COUNTY FARM BUREAU 3172 IRVINE BLVD COMPANY c jut CITY CtERIK LETTER CITY OF COMPANY D ------------- -- NEWFuN, LETTER IRVINE CA 92720 (714) 573-0374 COMPANY E ETTER THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT. TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN 18 SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. CO LTR TYPE OF INSURANCE POLICY NUMBER POLICYIEFFECTIVE DATE (MM/DD1YY) POUCYIEXPIRATION DATE (MMMONY) LIMITS GENERAL LIABILITY GENERAL AGGREGATE $1,000, 000 PR0DUCT&COMP/OPAGr. $1,000, 000 X COMMERCIAL GENERAL LIABILITY CLAMS MADE OCCUR SMP 0684797 04/07/96 04/07/97 PERSONAL & ADV. INJURY $1 000 000 EACH OCCURRENCE $1, 000, 000 OWNER'S & CONTRACTORS PROT. FIRE DAMAGE (Anyone fire) 550, 000 BFCGL MED.EXPENSE(Anyoneperson) $1,000 AUTOMOBILE LIABILITY ANY AUTO COMBINED SINGLE LIMIT $ BODILY INJURY (Per Person) $ ALL OWNED AUTOS SCHEDULED AUTOS HIRED AUTOS NON�OMED AUTOS BODILY INJURY (Per accldenQ $ PROPERTY DAMAGE $ GARAGE UA131UTY EXCESS LIABILITY EACH OCCURRENCE s UMBRELLA FORM AGGREGATE S i OTHER THAN UMBRELLA FORM WORKER'S CO COMPENSATION STATUTORY LIMITS S EACH ACCIDENT AND EMPLOYERS' LIABILITY $ DISEASE.-POLICY LIMIT DISEASE.-EACH EMPLOYEE $ OTHER DESCRIPTION OF OPERATIOKSILOCATIONSNEHICLMISPECIAL ITEMS FARMERS MARKET: McFADDEN PLACE, MUNICIPAL PARKING LOT, NEWPORT BEACH THE CITY OF NEWPORT BEACH AS ADDITIONAL INSURED PER L9109 '00.. ...... . ..... . .. ... .. . R'. X City Of Newport Beach SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE IXPI N DATE THEREOF, THE ISSUING COMPANY WILL 3POROOMMM IL 0 DAYS WRITTEN NOTI ?t TO THE RTIFICATE HOLDER NAMED TO THE 3300 Newport Blvd .%lewport Beach CA 926588915 REP ESENTA BUILDING DEP�rYT:igE?VT JUL 7996 crn D,�MEWPC., CA,' A A n t N (The Attaching Clause nescompleted only when this endorsement is issued subsequenoeparation of the policy.) a LIABILITY GL 20 11 (Ed. 07 66) G 109 ADDITIONAL INSURED ('remises Leased to the Named Insured) This endorsement modifies such insurance as is afforded by the provisions of the policy relating to the COMPREHENSIVE GENERAL LIABILITY INSURANCE MANUFACTURERS' AND CONTRACTORS' LIABILITY INSURANCE OWNERS', LANDLORDS' AND TENANTS' LIABILITY INSURANCE STOREKEEPER'S INSURANCE This endorsement, effective 7/19/96 (12:01 A. M., standard time) issued to ORANGE COUNTY FARM BUREAU forms a part of policy No. SMP 0684797 L 9109 (Ed. 7 -66) Premiums Bodily Property Injury Damage Designation of Premises Name of Person or Organization Liability Liability (Part Leased to Named Insured) (Additional Insured) MCFADDEN PLACE CITY OF NEWPORT BEACH INCLUDED MUNICIPAL PARKING LOT 3300 NEWPORT BLVD NEWPORT BEACH, CA NEWPORT BEACH, CA 92658 -8915 It is agreed that the "Persons Insured" provision is amended to include as an insured the person or organization designated above, but only with respect to liability arising out of the ownership, maintenance or use of that part of the premises designated above leased to the named insured, and subject to the following additional exclusions: The insurance does not apply: 1. to any occurrence which takes place after the named insured ceases to be a tenant in said premises; 2. to structural alterations, new construction or demolition operations performed by or on behalf of the person or organization designated above. �� Copyright, Insurance Services Office, Inc., 1978 30 DAY NOTICE WDORSEMENT (To_be Included with You licy) • CalFarm Insurance Company SA,Za Etrro.c Woa This endorsement effective 7/19/96 forms a part of Policy No. (12:01 A. M., Standard time) issued to ORANGE COUNTY FARM BUREAU by Call'arm Insurance Company. SHP 0684797 (The effective date and policy number will only be shown when this endorsement is issued after issuance of the policy.) Subject to all conditions, definitions, terms and provisions of the policy of which this endorsement is a part which are not expressly amended herein, it is understood and agreed between the Company and the named Insured that, except for non - payment of premium, this policy may not be cancelled or have its coverage reduced by the Company unless 30 days prior written notice is first given by the Company to the person(s)or entity(ies) shown below: Name: CITY OF NEWPORT BEACH 3300 NEWPORT BLVD NEWPORT BEACH, CA 92658 -8915 CML -GL 6326 [Ed. 9/931 0 BUILDING DEPARTMENT JUL `? 9 1996 CITY OF NEWPORT BEACH CALIFORNIA �EWpoR CITY OF NEWPORT BEACH Hearing Date' 8, 1996 p4 PLANNING /BUILDING DEPARTMENT Agenda Item No.: 16 U i 3300 NEWPORT BOULEVARD Staff Person: Christy Teague • a 0p_ NEWPORT BEACH, CA 92658 (714) 644 -3207 (7t4) 644 -320; FAX (714) 644 -3250 BY THE CITY C REPORT TO THE MAYOR AND CITY COUNCIL I I „( Ii_' 8 SUBJECT: MCFADDEN PLACE CERTIFIED FARMER'S SUMMARY: To allow a weekly Certified Farmer's Market in the municipal parking lot at McFadden Place and West Balboa Boulevard each Tuesday morning from 8:00 a.m. until noon during the Summer months, and 8:00 a.m. until 1:00 p.m. during the remainder of the year. SUGGESTED ACTION: July 8, 1996: If desired, authorize staff to negotiate encroachment agreement for weekly Certified Fam7er's Market in McFadden Place. PROPOSAL The Newport Pier Association and the Orange County Farm Bureau are requesting a Certified Farmer's Market in the McFadden Place Municipal Parking Lot located at McFadden Place adjacent to Balboa Boulevard (see attached map). The market proposal is for 25 to 30 farmers to sell produce and flowers directly to the community on each Tuesday for four hours, from 8:00 a.m. until noon during the Summer, and for five hours from 8:00 a.m. until 1:00 p.m. during non -peak seasons. BACKGROUND The Newport Pier Association initially requested a Certified Farmer's Market in early 1996. The Orange County Farm Bureau and the Newport Pier Association met with the Development Review Committee on April 4, 1996 and April 11, 1996 to seek input from City departments for a proposed Certified Farmer's Market in the West Oceanfront Municipal Parking Lot adjacent to the Doryman's Fish Market. The Committee identified potential issues including parking, pedestrian traffic and noise. The applicants have revised the location to the upper lot, known as the McFadden Place Municipal Parking Lot, in order to minimize these concerns. This proposal was reviewed by the Development Review Committee on June 13, 1996. On May 13, 1996, the City Council voted to decline waiting six months to consider applications for Certified Farmer's Markets, and to consider each application request presented to the City. At the same meeting, the City Council approved an encroachment agreement for the City's first Certified Farmer's Market to be held on two municipal parking lots in Corona del Mar. • At the time of this writing, the Corona del Mar Farmer's Market has been open for six weeks, on Saturdays from 9:00 am until 1:00 pm. The Farmer's Market customers appear to be using the -1- designated Farmer's Market parking in two nearby banks. The neighborhood response in Corona del Mar has been very positive. ANALYSIS The Newport Pier Association is making this proposal in order to increase business activity in the area (see attached letter). Although no sales tax is directly collected from Farmer's Market sales, Farmer's Markets promote community spirit and interaction, encouraging customers to come to the area and shop. Should staff be given the authorization to negotiate an encroachment and lease agreement with the applicant for the proposed weekly Certified Farmers Market at the July 8, 1996 meeting of the City Council, the agreement will be presented for Council review, alteration as desired, and consideration for approval at the next regular meeting of July 22, 1996. This report discusses issues to be addressed in the encroachment agreement. Parking and Parking Lot Demands Parking has been identified by the Development Review Committee as an area to be addressed in the agreement due to the high demand for parking spaces in the McFadden Place area, especially in the Summer. The proposed Farmer's Market will block 76 of the 446 metered parking spaces in the two municipal lots, or 17% of the parking spaces. In order to provide customer parking for the market, the applicant has obtained approval from The Old Spaghetti Factory and Savannah's Hut to use their lots as designated parking for the Farmer's Market. The authorization letter from The Old • Spaghetti Factory is attached. Savannah's Hut has given verbal approval, but at the time of this writing the owner was out of town and had not yet given written authorization. It is expected customers will use these overflow lots and also available metered spaces in the parking lots. It is also anticipated a significant number of customers will walk from nearby residences, as has been the case with the Corona del Mar Farmer's Market. Given the large sizes of the municipal parking lots, parking should not be a problem in the non - Summer months. These lots are used much more intensively during the Summer. Staff has visited the lots in the mornings and early afternoons during Summer, and has found the lots mostly full by early afternoon. The applicants have minimized the parking impact of the proposed Farmer's Market in the Summer by proposing a noon closure of the market, by obtaining the authorization to park in the Savannah's Hut and The Old Spaghetti Factory lots, and by proposing the location on a portion of the lot nearer to Balboa Boulevard than to West Oceanfront. Pedestrian Traffic The proposed location is well- suited for pedestrian traffic. This portion of the municipal lot is easily barricaded from the portions of the lot which has the most foot, bicycle, and skate traffic. It is directly adjacent to the 21st Street traffic light, allowing customers to cross Balboa Boulevard from nearby designated parking. The barriers will be placed in accordance with a plan approved by the Traffic Engineer and required by the encroachment agreement. • McFadden Place Fanners Market July 8 1996 Page 0 Noise • The Farmer's Market use should not present a noise problem. The setup, which would begin soon after 7:00 a.m., includes small non - commercial pickup trucks and vans driven onto the lot where they remain for the duration of the market. The fanners then sell from the trucks or from small tables set up adjacent to the vehicles. The proposed location is surrounded by commercially zoned properties and uses. The Doryman's Inn is located approximately 150 feet to the nearest corner of the proposed Fanner's Market. The hours of operation and the requirement of the manager to be on -site at all times will address the noise issue in the agreement. Certified Farmer's Market Mana eg ment The manager for the proposed Farmer's Market is Larry Nedeau. He is affiliated with the Orange County Farm Bureau, grew up in Newport Beach, and manages other successful markets in Orange County, including the Friday afternoon market in Huntington Beach. Certified Farmer's Markets are regulated by a market manager on site at all times. The manager is responsible for obtaining required permits and insurance, maintaining a group of farmers to sell a variety of produce, the verification of farmer certificates, set up of barricades and /or no parking signs as needed, arranging the layout of venders, set up and closure of the market, and assuring the area is left clean. These management responsibilities will be included in the agreement. Clean Up • The market manager is responsible for any clean up required for the market. It is in the best interest of each farmer to keep his area clean in order to be allowed by the manager to continue participating in the Farmer's Market. The encroachment agreement requires the market manager to leave the area clean and free of all debris by closure of the market each week. • Lease Fee The agreement will include a lease fee for use of public property and to offset meter revenue losses in the municipal lot. According to the Traffic Engineer, the projected lost meter revenues during the Tuesday hours of operation will be an average of $659.00 per month. Permits and Insurance Each Farmer's Market is approved and licensed by the Orange County Agriculture Department and the Orange County Health Department. The insurance required in the encroachment agreement will include the City of Newport Beach as additional named insured. In order to participate in a Certified Farmer's Market, each farmer must hold a Certified Producer's Certificate issued by the Orange County Department of Agriculture upon verification of crops. This certification is a guaranty that the consumer is buying directly from the grower. McFadden Place Farmers Market July 8 1996 Page 3 • • Abilitv to Revoke The agreement will include the ability of the City to revoke approval at any time and also include a . provision for mandatory review by the City Manager after one year. ENVIRONMENTAL REVIEW This project has been reviewed and it has been determined to be Categorically Exempt under a Class 4 Exemption) from the requirements of the California Environmental Quality Act. This category addresses minor alterations of land, including temporary uses of public or private land. PUBLIC COMMENTS Consideration of an encroachment and lease agreement does not require public notice. However, a notice has been sent to nearby owners and residents as a courtesy in order to inform nearby businesses and residences of the proposed Farmer's Market. Letters received have been attached for City Council review. SUMMARY The proposed Certified Farmer's Market, if approved, will bring people to the area and possibly bring more business to the nearby merchants. The impacts of the market can be controlled through provisions in the agreement as discussed in this report. • Respectfully submitted, By Christy D. Teague Associate Planner Attachment: Vicinity Map Letter from Newport Pier Association dated April 7, 1996 Parking Authorization Letter from The Old Spaghetti Factory Public Comment Letters f. \wp51 \planning \christy \mcffm.doc McFadden Place Farmers Market July 8 1996 Page 4 • VICINITY MAP dip -•7 .' - f� 9 i e " -T 1 0 if -,.T. 'ate �•";:.- � ../�� Jj��:- •"L'•�� •�% • \ �7 .n Ttt w��..l !� .:.• "-�..1 _ \'�; `7 / f '/ r` it . ��:�'y � �, / • ,��\.. •1-';+ , ./ � of • :\q. �.�� � ,0 -. � J it N(,Faddcn Place Fanners Market July 8 1996 Page 5 0 April 7, 1996 Jay Garcia Planning Department City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 Dear Jay: PORT p�F9 • �e Y 4SSOC10' O� This letter is to provide information on the proposed Farmer's Market that the Newport Pier Association (NPA) would like to sponsor into our area. • This venture, sponsored by NPA, will compliment our revitalization plans of attracting businesses and events with a wide appeal into the Newport Pier area. Our local Doryman's market (which has been in existence for 100 years and was the original heart of the city) as well as the local businesses would be enhanced with an additional visitor /consumer client base. • This market would attract both local residents and out of area consumers. The client base for this venture would come from several local sources: homemakers, retirees, home based business people, vacationers and visitors. We request approval to designate the southwest ocean front parking lot to be the designated area for the Farmers Market. Our plans are to hold the market on Tuesdays year round with the following hours: Summer 8:00 - 12:00pm and Non - summer 8:00 - 1:00pm. We feel these weekday hours would allow normal resident and visitor parking while attracting new visitors into our area. This parking lot area is especially suited for temporary closures as it allows the following without disruption to ongoing business and visitors: continuous vehicular traffic flow; emergency vehicle access; and pedestrian traffic The remaining parking lots on the ocean front and McFadden plaza would be able to facilitate necessary parking due to the early weekday hours of operation. City parking revenues would be increased due to this added attraction. The Orange County Farm Bureau brings farm fresh produce to our local neighborhood and is synergistic with the Doryman's fish market as well as being an enhancement to the other merchants and the City. This direct marketing outlet for our local growers provides an additional market for their produce while bringing a charismatic marketplace attracting a consumer base of health conscious people. The produce is sold directly from the growers vehicles or tables set up on site. r � LJ i NEWPORT PIER ASSOCIATION 115 Twenty- Second Street • Newport Beach, California 92663 (714) 675 -6442 0 9 0 Page 2 Cities throughout California who have farmer's markets in areas of revitalization have successfully increased consumer attendance into those areas bringing positive exposure and commendable results. We request that our proposal be placed on the Consent Calender for the City Council on April 22, 1996. Should you have any questions, please do not hesitate to contact me at 509 -3707. Sincerely, Marcia Dossey President cc: John Hedges, Mayor • Kevin Murphy, City Manager Jan Debay, Mayor Pro Tern Rush Hill, CEO Chamber of Commerce t� JUN -25-9e TUE 12:23 Pm OSF HEWPORT BEACH Aran Waei 0.u.rIM�.CI raa. F.�Y pa [G:Y/•'m ra[va June M 1y96 To \llxun It May Couccm: P-;,202 0 7146253a26 P.01 TA/f. J L Ms laUili [ Cr ♦_.[ -.r Please be that Th: Old Spaghetti Factor} •gill allow ovcu(loly parking for th. Farmers Market on i uesda.% monuuvs ac McFadd,u Square Dina 9ccke; • n U KI I• THE BALALIS CORPORARON 1500 West Balboa, Suite 201 Ne%%T)ort Beach, CA 92663 Phone (714) 67: -:282 FAX (714) 673.4286 ::C- . rPNh EEV 0 r Cr:E No. . • =pr, 11 1556 C7:57F < F1 r J POST-ilt Fax Note 7677 ��`e y� // �, °a;► co;ooa ca Fa aL 73. 3,a 5 Fax 75 X74 CANNEI\Y VILLAGE FEALTY INC7 2025 W. BALBOA BLVD. NEWPORT BEACH. CALIFORNIA 92663 (714) 673.3777 0 • 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 Rick Heil, 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 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. 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 on April 8, 1996, authorized staff to negotiate an Agreement with Permittee for the proposed Certified 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 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 Agriculture, the Orange County Agricultural Commissioner, the Orange County Health Department, and the City of Newport Beach. 0 0 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 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. Section 4. Conditions of Operation. A. The Certified Farmers Market may operate each Saturday from 9:00 a.m. to 1:00 p.m., commencing on May 18, 1996. 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 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. 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 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 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 0 E 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; (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 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. 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 packaged on site. 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 at the Certified Farmer's Market. 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 0 0 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. 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 18, 1996, 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 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 indemnity, 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 r 0 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). 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. 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 sea., 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: Rick Heil 104 South Ola 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) working days after the 0 0 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. 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. 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 Certified Farmer's Market in Corona del Mar. 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: 5--l-7 _ , 1996 Permittee Rick Heil Dated: S-- J �L , 1996 City of Newport Beach k;U Murp y Approved As To Form wbWarktem.doc City Attorney May 13, 1996 State of California County of Orange On before me, Irene Butler, Notary Public, personally appeared ❑ personally known to me - OR - ® proved to me on the basis of satisfactory evidence CAPACITY CLAIMED BY SIGNER Individual Corporate Officer Limited Partner General Partner Attorney -in -Fact Trustee(s) Guardian /Conservator Other: to be the personK whose name,W is/aw- subscribed to the within instrument and acknowledged to me that he�shefthey executed the same in hi &t&4 4hiE:r authorized capacity{+esj, and that by hisAie#fhe4 signature, ayon the instrument the person(aj, orthe entity upon behalf of which the person(' acted, executed the instrument. WITNESS my hand and official seal. DESCRIPTION OF ATTACHED DOCUMENT itle or type of Document i Number of Pages Date of Document Signer Is Repres n�tinjg- 571� 1 MA Signer() Other Than Named Above CERTIFICATE OF INS ' NCE PRODUCER Cert# 1437 BELL AND EMMONS INSURANCE SERVICES, INC. P.O. BOX 4265 SAN CLEMENTE, CA 92674 (714) 366 -7938 FAX (714) 361 -3380 CORONA DEL MAR CERTIFIED FARMERS MARKET BOX 2781 CAPISTRANO BEACH. CA 92624 - - - - - -- - ......... . ..... .. _. ISSUE DATE MAY 1696 CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND FERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE S NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE CIES BELOW. COMPANIES AFFORDING COVERAGE ICOMPANY A GOLDEN EAGLE INSURANCE COMPANY COMPANY 8 COMPANY C COMPANY D THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS VCJAXIHIIUNOFUHhHAIlUNS /LI AIIONSIVEHICLESISPECIALITEMS CERTIFICATE HOLDER IS NAMED AS ADDITIONAL INSURED REGARDING ALL OPERATIONS OF THE NAMED INSURED, WEEKLY FARMERS MARKET LOCATED AT THE CORNER OF PACIFIC COAST HIGHWAY AND MARGUERITE STREET IN THE CITY OF CORONA DEL MAR, CA. GERTIFIGATE HOLDER AS ADDITIONAL INSURED CITY OF NEWPORT BEACH, ITS OFFICERS, AGENTS, EMPLOYEES AND VOLUNTEERS 3300 NEWPORT BLVD NEWPORT BEACH, CA 92658 -8915 - ---- -----..- -- --- -.__.----'---- CA .... .� NCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO MAIL N DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEF1 BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE COMPANY, ITS AGENTS OR REPRESENTATIVES. 10 -DAY NOTICE OF CANCELLATION APPLIES FOR NONPAYMENT OF PREMIUM O TYPE OF INSURANCE I POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION I LIMITS TR DATE (MM /DD/YY) DATE (MMIDD/YY) GENERAL LIABILITY I GENERAL AGGREGATE— $ 1,000,000 I X : COMMERCIAL GENERAL LIABILITY CCP403522 MAY 1396 MAY 13 97 PRODUCTSCOMP /OP AGG. $ 1,000,000 JLAMS MADE 1 OCCUR PERSONAL 8 ADV INJURY $ 1 0D0.0DD A' OWNER'S 8 CONTRACTOR'S PROT EACH OCCURRENCE S 1,000,000 I-- FIRE DAMAGE(Any One Fire) $ 50,000 MED EXPENSE(Any One Person $ 5ODO AUTOMOBILE LIABILITY COMBINED SINGLE LIMB $ ANY AUTO ALL OWNED AUTOS ' BODILY INJURY SCHEDULED AUTOS I I i (Per Person) ) g HIRED AUTOS I — — — — — BODILY INJURY $ NON -OWNED AUTOS I (pu Accident) li.... ._._.. ._ .. ... ._..___ -------- PROPERTY DAMAGE $ GARAGE LIABILITY AUTO ONLY - EA ACCIDENT $ ANY AUTO OTHER THAN AUTO ONLY EACH ACCIDENT $ AGGREGATE $ ESS LIABILITY EACH OCCURRENCE $ UMBRELLA FORM AGGREGATE $ OTHER THAN UMBRELLA FORM WORKER'S COMPENSATION AND I STATUTORY LIMITS EMPLOYERS' LIABILITY EACH ACCIDENT THE PROPRIETOR/ INCL DISEASE-POLICY LIMIT $ PARTNERS/EXECUTIVE OFFICERS ARE: EXCL ---------- -- -- — DISEASEEEACH EMPLOYEE � - - -- $ OTHER I VCJAXIHIIUNOFUHhHAIlUNS /LI AIIONSIVEHICLESISPECIALITEMS CERTIFICATE HOLDER IS NAMED AS ADDITIONAL INSURED REGARDING ALL OPERATIONS OF THE NAMED INSURED, WEEKLY FARMERS MARKET LOCATED AT THE CORNER OF PACIFIC COAST HIGHWAY AND MARGUERITE STREET IN THE CITY OF CORONA DEL MAR, CA. GERTIFIGATE HOLDER AS ADDITIONAL INSURED CITY OF NEWPORT BEACH, ITS OFFICERS, AGENTS, EMPLOYEES AND VOLUNTEERS 3300 NEWPORT BLVD NEWPORT BEACH, CA 92658 -8915 - ---- -----..- -- --- -.__.----'---- CA .... .� NCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO MAIL N DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEF1 BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE COMPANY, ITS AGENTS OR REPRESENTATIVES. 10 -DAY NOTICE OF CANCELLATION APPLIES FOR NONPAYMENT OF PREMIUM e 0 M Merritt Manual gOLICY FORMS & ENDORSEMENTS* General Liability Commercial Risks Page 93 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - DESIGNATED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART. SCHEDULE Name of Person or Organization: CITY OF PIEI4PORT BEACH, ITS OFFICERS, AGENTS, EMPLOYEES AND VOLUNTEERS SPONSOR OF EVENT NAMED AS ADDITIONAL INSURED 3300 NEWPORT BLVD. NEWPORT BEACH, CA. 92653 -8915 (If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.) WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown in the Schedule as an insured but only with respect to liability arising out of your operations or premises owned by or rented to you. CG 20 26 1185 Copyright, Insurance Services Office, Inc., 1984 ❑