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CC Resolution 11750RESOLUTION NO. 11750 RESOLUTION OF THE CITY OF CAMPBELL CITY COUNCIL AUTHORIZING EXECUTION OF AN OPERATOR'S AGREEMENT WITH URBAN VILLAGE FARMERS' MARKET ASSOCIATION TO CONTINUE OPERATING AND MANAGING THE DOWNTOWN CAMPBELL FARMERS' MARKET WHEREAS, the City of.Campbell (the "City") entered into a contract with Urban Village Farmers' Market Association (the "UVFMA") to manage and operate a Downtown Campbell Farmers' Market (the "Market") in 1998; and WHEREAS, over the last 16 years the Market has been highly successful in providing a community gathering place, bringing together local farmers that provide organic produce to the community, and giving our downtown merchants a weekly flow of people to market their merchandise; and WHEREAS, the UVFMA has provided excellent market management services over the years being responsive to staff requests during the growing pains of one of the most successful markets in Silicon Valley. NOW, THEREFORE, BE IT RESOLVED, that the City of Campbell City Council authorize execution of the Fourth Amended Operator's Agreement with UVFMA to continue to manage and operate the Downtown Campbell Farmers' Market through December 31, 2016. PASSED AND ADOPTED this lath of November, 2014 by the following roll call vote: AYES: Council Members: Raker, Kotows!ci, Cristina NOES: Council Members: Waterman None ABSTAIN: Council Members: ABSENT: Council Members: T.ow 1~ APPROVED: l1 (-NI Ri and M. Waterman, Mayor ATTEST: ne Bybee, City Clerk DOWNTOWN CAMPBELL FARMERS' MARKET FOURTH AMENDED OPERATION AND MANAGEMENT AGREEMENT THIS AGREEMENT is entered into on the of 2014, by and between the CITY OF CAMPBELL (hereinafter referred to as the "City") and URBAN VILLAGE FARMERS' MARKET ASSOCIATION (hereinafter referred to as "Operator"). WHEREAS, the Operator has managed the Downtown Farmers Market since May, 1998 responsibly and in good standing; and WHEREAS, the Downtown Campbell Farmers Market has been named the best farmers' market in Silicon Valley by the readers of the Mercury News for the past 10 years; and WHEREAS, the success of the market has increased visibility and commercial viability for downtown Campbell, and the Operator as well as the vendors have benefited from the arrangement with both parties finding it mutually beneficial to continue the relationship; and WHEREAS, the City desires to retain management services from the Operator for the purpose of operating a certified farmers' market (hereinafter referred to as "Market"); meeting the certification requirements of Santa Clara County Agricultural Commissioner and WHEREAS, Operator represents that it has the expertise, means and ability to perform and manage the Market; NOW, THEREFORE, in consideration of each other's mutual promises, Operator and City agree as follows: 1. DUTIES OF OPERATOR a. Operator agrees to organize and manage all aspects of the Market including but not limited to farmer and vendor recruitment, management of daily Market operations except those outlined in Section 2 of this Agreement, and performance and enforcement of the rules and regulations outlined in Attachment A of this Agreement. b. In accordance with this Agreement by Operator, a Market shall be operated each Sunday year round from 9:00 AM to 1:00 PM. Vendors shall cease conducting business by not later than 1:00 PM. The Operator shall have the market closed down; vendors packed and off the streets, the streets cleaned and the streets opened to traffic by no later than 3:00 PM. Downtown Campbell Farmer's Market Fourth Amended Agreement Page 1 of 8 c. Operator agrees to perform under this Agreement in accordance with the degree of skill and expertise generally exercised by local members of Operator's profession. d. Operator shall operate in good faith with the City in all aspects of the performance of this Agreement. e. Operator's designated Project Manager shall be Ron Pardini. The Operator's Project Manager shall have all the necessary authority to direct work within the scope of the Agreement and shall serve as the principal point of contact with the City. f. Operator shall be responsible for all barricades and signs for street closures, directional signs, "No Dogs" signs, etc., necessary for the operation of the Market in compliance with the City approved Traffic Control Plan as illustrated in Attachment B and in accordance with County and State rules regulating Certified Farmers Markets. g. The authorized Project Manager or Operator executing this Agreement shall have authority to make decisions regarding changes in services, termination and other contractual matters on behalf of Operator. h. Either the Operator or a designated Market Manager shall be in attendance at all times during the Market operation. During the summer months when the Market is heaviest, the Market may require more than one employee to manage the Market. The Operator will ensure that adequate supervision is in place to manage the activities of the Market on any given Sunday. i. Operator is ultimately responsible for the actions of any Market Manager(s) that may be appointed by the Operator. It will be the responsibility of the Operator to ensure that the Market has adequate supervision by qualified personnel who can interact with the public in a professional and responsible manner. If requested by the City, Operator shall replace staff for good cause. The market manager shall be required to keep a cell phone and the City provided the cell phone number in the event City staff or police needs to contact the market manager on the day of the Farmer's Market. j. The Operator shall supply additional trash receptacles throughout the market in the street and also place an extra receptacle adjacent to each City trash can from 3rd Street to the railroad tracks to relieve the overflow of trash in City trash cans. Operator will continue to empty the City trash cans at the beginning of the market and remove excess trash from City cans at the end of the market. k. The percentage of arts and crafts vendors shall be limited to no more than 25% of the Market. The City has the discretion to have the Operator remove a vendor that sells products or merchandise that directly competes with downtown merchants. Downtown Campbell Farmer's Market Fourth Amended Agreement Page 2 of 8 I. Operator shall continue to provide staff to clean the restrooms at both Starbucks and Orchard City Coffee 3 times every Sunday (10:00 am, Noon, and 2:00 pm) which are heavily impacted due to the market. m. There shall be no stacking of produce, produce containers or any vendor supplies, chairs, display cases, etc. on the public sidewalks or against buildings. The Operator shall be responsible to clean up any produce stains related to produce stacking or staging including steam cleaning as determined by the City. n. Vendors shall not erect booth screens or panels that block visibility to the storefronts. Backs of all booths shall remain open so the open business behind each vendor has clear visibility. Vendors are strictly forbidden from using any City trash receptacles to dispose of their refuse. Each vendor shall ensure the area around their booth is completely cleaned, all boxes and trash/debris shall be cleaned up at the conclusion of the market. Vendors that are in violation of M, N, and/or O of this Section shall be fined by the Operator to ensure future compliance. p. Operator shall display downtown merchant fliers and coupons, as provided by business owners to market their business, at the Market info booth each Sunday. 2. COMPENSATION a. While the downtown provides market vendors a venue to conduct retail transactions in a successful manner, it also increases the cost of maintenance of streets and sidewalks to the City. Additionally, the "brick and mortar" businesses in the community are required to pay rent, incur overhead expenses and pay business license fees to the City. In fairness to the business community and in consideration of impacts on streets and sidewalks, Operator agrees to compensate the City of Campbell in the amount of $12,000 annually for the vendors to conduct business in Campbell on a weekly basis. The Market will pay the City monthly or an alternate payment schedule may be approved upon request of the Operator. Payments must be paid in cash or check. b. Payment shall be made to: Attention: Accounts Receivable Finance Department City of Campbell 70 N. First Street Campbell, CA 95008 3. DUTIES OF THE CITY The City agrees to: a. Continue promotion of the Farmers Market through its website, its promotional materials and street banners. Downtown Campbell Farmer's Market Fourth Amended Agreement Page 3 of 8 b. Retain all necessary City of Campbell approvals to close East Campbell Avenue between the light rail tracks and Third Street, including side streets. c. Work cooperatively and in good faith with the Operator in resolving problems and ensuring a successful Markef. 4. OPERATOR COMPENSATION a. The City agrees that all monies generated from farmers dues and Market stall fees shall be compensation to Operator for operation of the Market. 5. TERM OF CONTRACT This 2-year Agreement shall be in full force and effect from the date of execution and expires on December 31, 2016. At least 90 days prior to expiration of this Agreement, Operator and the City will enter into discussions for consideration of an Agreement extension and any amendments as deemed appropriate. 6. NO ASSIGNMENT Except as otherwise expressly provided in this Agreement, it is understood and agreed that this Agreement is for specialized professional services; and management services''can not be assigned by Operator without the City's prior consent in writing: ; ;;; 7. TERMINATION BY CITY Upon the failure of the Operator to observe or perform any of the conditions of this Agreement, the City -shall notify the Operator in writing of such default and the Operator shall have seven (7) days to cure. 8. BEST EFFORTS OF OPERATOR Operator agrees that it will at all times faithfully, industriously, and to the best of its ability, experience and talent, perform, all of the duties that may be required of or from it, pursuant to all terms of this Agreement, expressed or implied, in a manner reasonably satisfactory to the City, in accordance with the standards reasonably ' expected of a Market Manager so engaged. 9. DEFAULT/REMEDIES: TERMINATION FOR CAUSE The occurrence of the following constitutes a material default and breach of this Agreement by Operator: The failure of Operator to observe or perform any of the covenants, conditions, or provisions of this Agreement to be observed or performed by Operator, where the failure continues for a period of two consecutive markets after notice thereof from the City to Operator; provided, however, that if the nature of Operator's default is such that more than two consecutive markets are reasonably required for its cure, as determined ih good faith by the City, then Operator shall not be deemed in default if Operator commences such cure within the prescribed time period and thereafter diligently completes the cure in a reasonable period of time. Downtown Campbell Farmer's Market Fourth Amended Agreement Page 4 of 8 If such default and breach are not cured as provided herein, then City shall have the right to terminate this Agreement and pursue those remedies available to it under the laws of the State of California. 10. INDEPENDENT CONTRACTOR Operator and its agents and employees are independent. contractors with, and not agents or employees of the City. Operator shall retain full control over the employment, direction, compensation, and discharge of all employees assisting them in performance of those services hereunder except as provided under Section 1(e). Operator shall be fully responsible for all matters relating to wages or salaries of such employees, such as the payment of all employment taxes, including SDI, Federal, and State income taxes, unemployment insurance and disability taxes, among others, if so required, and will be responsible for compliance with all laws and regulations governing such matters. Operator shall be responsible for its own acts and those of its agents and employees during the term of this Agreement. 11. INDEMNITY Operator shall indemnify, defend, and hold the City and its officers, members and employees harmless from and against any and all liability, claims, losses, damages, suits, actions, causes of. actions, costs and expenses (including attorney's fees) arising out of, or alleged to arise out of (1) the performance of this Agreement, (2) any act or omission of Operator, (3) the violation of any Federal, State, or municipal law or ordinance, or (4) any other cause in connection with the activities of Operator their agents or employees or on account of the performance or character of any work in connection with this Agreement. This provision shall expressly apply to, but is not limited to any and all liability, claims, losses, damages, suits, actions, causes of actions for bodily injury, personal injury, property damage, or infringement of any property rights, including but not limited to intellectual property rights. The indemnity afforded by this provision shall not apply to any liability, claims, losses, or damages proximately caused by the sole negligence or willful misconduct of the City. This provision is intended to fully allocate all risk between the parties for liability to third- parties; and Operator shall have no rights against City for indemnity, contribution or defense as to any matter covered by this provision. This provision shall survive the termination of this Agreement; and approval of any insurance coverage does not, in any way, relieve Operator of liability under this clause. 12. INSURANCE REQUIREMENTS Upon execution of this Agreement, Operator shall promptly obtain, at its own expense, all of the insurance required by this section, and submit verification of coverage for review and approval by the City. In the event Operator subcontracts any of the work provided herein, Operator shall not allow any sub-contractors to commence work on their subcontracts act until all similar insurance required of such persons has been obtained and verified. Such insurance shall remain in full force and effect at all times during the prosecution of the work and until final completion and acceptance thereof. Downtown Campbell Farmer's Market Fourth Amended Agreement Page 5 of 8 Comprehensive General Liability Insurance and Automobile Liability Insurance shall be provided by Operator for each agent and employee, with a combined single limit liability of no less that One Million Dollars ($1,000,000) per occurrence and a combined cumulative liability of no less than $2,000,000. Worker's Compensation and Employer's Liability Insurance shall be provided by Operator for all of its agents and employees engaged in the work under this Agreement. Should any work be sublet, Operator shall require the subcontractor to similarly provide Workers' Compensation and Employer's Liability Insurance, all in compliance with State laws and to full protect the City from any and all claims arising out of an injury or occurrence in the work. Coverage shall be at least as broad as: 1. Insurance Services Office Commercial General Liability coverage "occurrence" form CG 0001 (Ed. 11/85). 2. Workers' Compensation insurance as required by the Labor Code of the State of California and Employers Liability insurance. Deductibles and Self-Insured Retentions Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects to the City, its officers, officials, employees, and volunteers; or the Contractor shall provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration and defense expenses. Other Insurance Provisions The general liability policy shall contain, or be endorsed to contain, the following provisions: 1. The City, their officers, employees, and volunteers are to be covered as insureds with respect to liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the Operator; and with respect to the liability arising . out of work or operations performed by or on behalf of the Operator including materials, parts or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Operator's insurance, or as a separate owner's policy. 2. For any claim related to the Agreement, the Operator's insurance coverage shall be the .City, and their officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City of their officers, officials, employees or volunteers shall be excess of the Operator's insurance and shall not contribute with it. 3. ,Each insurance policy required by this clause shall be endorsed to state that coverage shall not be cancelled by either party, except after thirty (30) days' prior Downtown Campbell Farmer's Market Fourth Amended Agreement Page 6 of 8 written notice by certified mail, return receipt requested, has been given to the City. Workers' Compensation and Employers Liability Coverage The insurer shall agree to waive all rights of subrogation against the City, or their officers, officials, employees, and volunteers for losses arising from work performed by the Contractor for the City. Acceptability of Insurers Unless otherwise approved, insurance is to be issued by an insurer with a currerit A.M. Best Rating of A:VII and be authorized to transact business in the State of California. Verification of Coverage Operator shall furnish the City with original certificates of insurance and amendatory endorsements effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the City before work commences. The City reserves the right to require complete certified copies of all required insurance policies, including endorsements affecting the coverage required by these specifications, at any time. 13. NOTICES Any notice required or authorized to be given under this Agreement shall be duly and properly given to City or Operator in writing and personally delivered. THE CITY: Francine Principe Project Manager City of Campbell 70 North First Street Campbell, CA 95008 TO OPERATOR: Ron Pardini Executive Director Urban Village Farmers' Market Association. 348 Lewis St. Ste 4A Oakland. CA 94607 Or such other address as either party may from time to time designate in writing to the other. 14. NATURE OF AGREEMENT This Agreement does not constitute a hiring by either party. It is the parties' expressed intention that Operator, its agents and employees shall be independent contractors to the City, and shall not be considered to be an employee of the City, in doing the things here agreed to. The parties hereto are and shall remain independent contractors bound by the provisions of this Agreement. Downtown Campbell Farmer's Market Fourth Amended Agreement Page 7 of 8 15. ENTIRE AGREEMENT This Agreement embodies the whole agreement between the parties hereto and there are no inducements, promises, terms, conditions or obligations made or entered into by the City or operator other than those contained herein. The foregoing provisions are understood and agreed to by Operator. CITY OF CAMPBELL By: Mark Linder, City Manager Date: URBAN VILLAGE, FARMERS' MARKET ASSOCIATION By: Date: Ron Pardini, President Downtown Campbell Farmer's Market Fourth Amended Agreement Page 8 of 8