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HomeMy WebLinkAboutAgenda - 05-05-2009 - 4oORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: May, 5, 2009 Action Agenda Item No. ~ - ~ SUBJECT: Eno River Farmers' Market License Agreement Approval and Appropriation to the Eno River Farmers' Market, Inc. DEPARTMENT: N. C. Cooperative Extension PUBLIC HEARING: (Y/N) No ATTACHMENT(S): License Agreement INFORMATION CONTACT: Dr. Fletcher Barber, Jr., 245-2050 PURPOSE: To 1) approve a License Agreement between the County and the Eno River Farmers' Market, Inc., anon-profit corporation; 2) approve the waiver of the annual license fee of one dollar per year for the initial three-year term; and 3) approve aone-time appropriation of $5,000 to the Eno River Farmers' Market, Inc. for the initial cost of a Market Manager. BACKGROUND: At the January 22, 2009 Board of County Commissioners meeting the Board unanimously approved the transition of The Orange County Farmers' Market at the Public Market House to an independent organization as recommended by the Orange County Farmers' Market at the Public Market House Interim Oversight Committee Further, the Board directed the Manager to develop a contract between Orange County and the Eno River Farmers' Market, Inc. for the operation of the Market. The contract needed to include the Eno River Farmers' Market, Inc. providing $1 million of liability insurance for the County. Based on staff and County Attorney discussions since January 22"d, a license agreement has been developed and reviewed by the County Attorney with input from representatives from the Eno River Farmers' Market, Inc. A "license" rather than a "lease" is proposed because a license is generally used when one party is giving another permission to do something on property (as is the case with the use of the Market House) whereas a lease conveys an interest in property with a continuing right of possession. County staff has also received a copy of the Certificate of Insurance verifying the required general liability insurance coverage of $1 million. The proposed License Agreement is for an initial term of three (3) years and allows the Eno River Farmers' Market to have exclusive use of the Public Market House during the following days and times: (A) Every Saturday during the hours of 6:00 AM - 1:00 PM; (B) Every Tuesday during the hours of 4:00 PM - 6:00 PM; and (C) Additional days and times throughout the calendar year to serve such specialty and holiday markets on a "first come first serve" basis as scheduled with the Orange County Parks and Recreation Department. The License Agreement includes a provision that the Eno River Farmers' Market, Inc. will pay the County one dollar per year for the annual license fee throughout the initial three-year term. However, it is proposed that this fee be waived. The one-time appropriation of $5,000 to the Eno River Farmers' Market, Inc. was also discussed at the January 22, 2009 Board meeting. The Board is also asked to authorize the appropriation of $5,000 to cover the cost associated with a Market Manager to begin work on or after July 1, 2009. FINANCIAL IMPACT: The license includes a provision that the Eno River Farmers' Market, Inc. pay the County one dollar per year for the annual license fee throughout the initial three-year term. However, it is proposed that this fee be waived. There is also a proposed appropriation of $5,000 for a Market Manager to begin work on or after July 1, 2009. These funds will come from the FY 2009-2010 General Fund. RECOMMENDATION(S): The Manager recommends the Board: (1) Approve the License Agreement between the County and the Eno River Farmers' Market, Inc. and authorize the Chair to execute the Agreement on behalf of the County; (2) Approve the waiver of the annual license fee of one dollar per year for the initial three-year term; and (2) Approve aone-time appropriation of the $5,000 from the General Fund to Eno River Farmers' Market for the initial cost of a Market Manager. 3 North Carolina Orange County LICENSE AGREEMENT This License Agreement is made effective as of this the day of April 2009, by and between the ENO RIVER FARMERS' MARKET, INC., a North Carolina non-profit corporation having an address of 8707 Art Road, Cedar Grove, North Carolina 27231 (the "Market") and ORANGE COUNTY, NORTH CAROLINA, a body politic and corporate, a political subdivision of the State of North Carolina, having an address of P.O. Box 8181, Hillsborough, North Carolina 27278 (the "County"). WITNESSETH: WHEREAS, in February 2008 the County approved the temporary administration and operation of a Farmers' Market at the County owned Public Market House by the County; and WHEREAS, the County directed at that time that its operation and administration of the Farmers' Market be wholly replaced by and entity independent of the County as soon as practicable thereafter; and WHEREAS, on January 14, 2009, the Market was organized in the State of North Carolina as an independent non-profit corporation by the filing of Articles of Incorporation with the North Carolina Secretary of State; and WHEREAS, the Market is prepared and desires to assume the administrative duties and operational responsibilities for the Farmers' Market; and WHEREAS, the County desires the Market to assume the administrative duties and operational responsibilities for the Farmers' Market; and WHEREAS, the Market desires a license for the use of the County's Public Market House for farmers' markets subject to the terms of this License Agreement; and WHEREAS, the County desires the Market to utilize the County's Public Market House for farmers' markets subject to the terms of this License Agreement. NOW, THEREFORE, for good and valuable consideration, and subject to the terms and conditions hereinafter set forth, the County does hereby license unto the Market and Market does hereby accept as Market of the County the use of the Public Market House as described more fully herein. a SECTION ONE GRANT OF LICENSE: DESCRIPTION OF PREMISES AND HOURS OF OPERATION County hereby grants to Market a license to occupy and use the County owned facility commonly known as the "Orange County Public Market House" located directly behind the Orange County District Attorney's Office at 120 East Margaret Lane, Hillsborough, North Carolina (the "Public Market House"). Market shall be permitted hereby to occupy the Public Market House as follows: (A) Every Saturday throughout the term of this Agreement during the hours of 6:00 AM-1:00 PM; (B) Every Tuesday throughout the term of this Agreement during the hours of .4:00 PM-6:00 PM; and (C) Additional days and times throughout the calendar year to serve such specialty and holiday markets on a "first come first serve" basis as scheduled with the Orange County Parks and Recreation Department. County hereby agrees not to schedule other events on the Public Market House during the times and dates set forth in Subsections A-C above. County further agrees to make utilities available at the market house (to include power and water) and to provide the market with access to the restrooms located on the Public Market House during the times and days listed above. SECTION TWO LIMITATION TO DESCRIBED PURPOSE Market shall utilize the Public Market House for the limited purpose of operating a farmers' market on the Public Market House. SECTION THREE PERIODIC PAYMENTS Market shall pay County for this license at the rate of One Dollar ($1.00) per year payable in advance. SECTION FOUR TERM & TERMINATION This License Agreement shall be valid for a period of three (3) years beginning on April 1, 2009. County and Market agree to discuss extending this initial three year term for an additional two (2) year term prior to its natural expiration. However, the parties understand and agree that the payment terms described herein reflect a concession on the part of the County in order to continue its assistance in establishing a viable farmers market. The payment for the license following the expiration of the initial three year term is likely to be increased at that time to the then current rate charged to other groups or individuals using the market house. 5 Either party may terminate this License Agreement at any" time, without regard to payment periods by giving written notice to the other specifying the date of termination. County and Market shall use their best efforts to provide the other party a minimum of thirty (30) days prior written notice of its intent to terminate this Agreement. SECTION FIVE MARKET CONTACT Market hereby provides County with the contact information of two (2) individuals that County may contact during the hours in which the farmers market is open to address any and all immediate issues that may arise in regard to this License Agreement. Name Name Telephone Number Email Address Telephone Number Email Address SECTION SIX CONDITION OF PUBLIC MARKET HOUSE & COMPENSATION FOR DAMAGE Market shall clear the Public Market House (including the restrooms) of all trash and debris at the end of each day in which the farmers market operates throughout the term of this License Agreement. Market agrees that it shall make all reasonable repairs to the Public Market House for damages directly attributed to its use of the Public Market House by Market or by and vendor at the Market. SECTION SEVEN INSURANCE Market shall obtain, at its sole expense, general liability insurance insuring against any and all losses at the market house during the Market's use thereof. This policy shall provide coverage in the amount of no less than One Million Dollars ($1,000,000). Insurance policies shall be endorsed (1) to show Orange County as additional insured, as their interests may appear and (2) to amend cancellation notice to 30 days, pursuant to North Carolina law. Certificates of insurance shall be signed by a licensed North Carolina agent and be amended to show "thirty (30) days' notice of change or cancellation will be given to the Orange County Risk Manager by certified mail." SECTION EIGHT RELATIONSHIP OF PARTIES ~V It is expressly agreed and understood that this License Agreement shall not operate or be construed to create the relationship of landlord and tenant between County and Market whatsoever. Neither Market nor any employee of the Market shall be deemed an officer, employee or agent of the County. SECTION NINE INDEMNIFICATION Market agrees to defend, indemnify, and hold harmless the County, for all loss, liability, claims or expense (including reasonable attorney's fees) arising from bodily injury, including death or properly damage, to any person or persons caused in whole or in part by the negligence or misconduct of the Market, except to the extent same are caused by the negligence or willful misconduct of the County. It is the intent of this section to require Market to indemnify the County to the extent permitted under North Carolina law. SECTION TEN MISCELLANEOUS It is agreed that this Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of North Carolina. Any modification of this Agreement or additional obligation assumed by either party in connection with this Agreement shall be binding only if evidenced in writing signed by each party or an authorized representative of each party. By signing below, the representative of Market warrants that he/she is authorized to execute this Agreement on behalf of Market, and that he/she has obtained all authorizations, approvals, and resolutions from Market that are necessary in order to duly bind Market to this Agreement. In witness whereof, each party to this agreement has caused it to be executed on the date first written above. ENO RIVER FARMERS' MARKET, INC. By: _ Name: Title: ORANGE COUNTY, NORTH CAROLINA By: Valerie P. Foushee, Chair Orange County Board of Commissioners .s -.f-fJ9 ,. ~ ~~ Please return this copy to Clerk to the Board's office for PAF North Carolina Orange County LICENSE AGREEMENT This License Agreement is made effective as of this the ~ day of May 2009, by and between the ENO RIVER FARMERS' MARKET, INC., a North Carolina non-profit corporation having an address of 8707 Art Road, Cedar Grove, North Carolina 27231 (the "Market") and ORANGE COUNTY, NORTH CAROLINA, a body politic and corporate, a political subdivision of the State of North Carolina, having an address of P.O. Box 8181, Hillsborough, North Carolina 27278 (the "County"). WITNESSETH: WHEREAS, in February 2008 the County approved the temporary administration and operation of a Farmers' Market at the County owned Public Market House by the County; and WHEREAS, the County directed at that time that its operation and administration of the Farmers' Market be wholly replaced by and entity independent of the County as soon as practicable thereafter; and WHEREAS, on January 14, 2009, the Market was organized in the State of North Carolina as an independent non-profit corporation by the filing of Articles of Incorporation with the North Carolina Secretary of State; and WHEREAS, the Market is prepared and desires to assume the administrative duties and operational responsibilities for the Farmers' Market; and WHEREAS, the County desires the Market to assume the administrative duties and operational responsibilities for the Farmers' Market; and WHEREAS, the Market desires a license for the use of the County's Public Market House for farmers' markets subject to the terms of this License Agreement; and WHEREAS, the County desires the Market to utilize the County's Public Market House for farmers' markets subject to the terms of this License Agreement. NOW, THEREFORE, for good and valuable consideration, and subject to the terms and conditions hereinafter set forth, the County does hereby license unto the Market and Market does hereby accept as Market of the County the use of the Public Market House as described more fully herein. SECTION ONE GRANT OF LICENSE: DESCRIPTION OF PREMISES AND HOURS OF OPERATION County hereby grants to Market a license to occupy and use the County owned facility commonly known as the "Orange County Public Market House" located directly behind the Orange County District Attorney's Office at 120 East Margaret Lane, Hillsborough, North Carolina (the "Public Market House"). Market shall be permitted hereby to occupy the Public Market House as follows: (A) Every Saturday throughout the term of this Agreement during the hours of 6:00 AM-1:00 PM; (B) Every Tuesday throughout the term of this Agreement during the hours of 4:00 PM-6:00 PM; and (C) Additional days and times throughout the calendar year to serve such specialty and holiday markets on a "first come first serve" basis as scheduled with the Orange County Parks and Recreation Department. County hereby agrees not to schedule other events on the Public Market House during the times and dates set forth in Subsections A-C above. County further agrees to make utilities available at the market house (to include power and water) and to provide the market with access to the restrooms located on the Public Market House during the times and days listed above. SECTION TWO LIMITATION TO DESCRIBED PURPOSE Market. shall utilize the Public Market House for the limited purpose of operating a farmers' market on the Public Market House. SECTION THREE PERIODIC PAYMENTS Market shall pay County for this license at the rate of One Dollar ($1.00) per year payable in advance. SECTION FOUR TERM & TERMINATION This License Agreement shall be valid for a period of three (3) years beginning on April 1, 2009. County and Market agree to discuss extending this initial three year term for an additional two (2) year term prior to its natural expiration. However, the parties understand and agree that the payment terms described herein reflect a concession on the part of the County in order to continue its assistance in establishing a viable fanners market. The payment for the license following the expiration of the initial three year term is likely to be increased at that time to the then current rate charged to other groups or individuals using the market house. Either party may terminate this License Agreement at any time, without regard to payment periods by giving written notice to the other specifying the date of termination. County and Market shall use their best efforts to provide the other party a minimum of thirty (30) days prior written notice of its intent to terminate this Agreement. SECTION FIVE MARKET CONTACT Market hereby provides County with the contact information of two (2) individuals that County may contact during the hours in which the farmers market is open to address any and all immediate issues that may arise in regard to this License Agreement. Name Telephone Number Email Address Name Telephone Number Em it Address SECTION SIX CONDITION OF PUBLIC MARKET HOUSE & COMPENSATION FOR DAMAGE Market shall clear the Public Market House (including the restrooms) of all trash and debris at the end of each day in which the farmers market operates throughout the term of this License Agreement. Market agrees that it shall make all reasonable repairs to the Public Market House for damages directly attributed to its use of the Public Market House by Market or by and vendor at the Market. SECTION SEVEN INSURANCE Market shall obtain, at its sole expense, general liability insurance insuring against any and all losses at the market house during the Market's use thereof. This policy shall provide coverage in the amount of no less than One Million Dollars ($1,000,000). Insurance policies shall be endorsed (1) to show Orange County as additional insured, as their interests may appear and (2) to amend cancellation notice to 30 days, pursuant to North Carolina law. Certificates of insurance shall be signed by a licensed North Carolina agent and be amended to show "thirty (30) days' notice of change or cancellation will be given to the Orange County Risk Manager by certified mail." SECTION EIGHT RELATIONSHIP OF PARTIES It is expressly agreed and understood that this License Agreement shall not operate or be construed to create the relationship of landlord and tenant between County and Market whatsoever. Neither Market nor any employee of the Market shall be deemed an officer, employee or agent of the County. SECTION NINE INDEMNIFICATION Market agrees to defend, indemnify, and hold harmless the County, for all loss, liability, claims or expense (including reasonable attorney's fees) arising from bodily injury, including death or property damage, to any person or persons caused in whole or in part by the negligence or misconduct of the Market, except to the extent same are caused by the negligence or willful misconduct of the County. It is the intent of this section to require Market to indemnify the County to the extent permitted under North Carolina law. SECTION TEN MISCELLANEOUS It is agreed that this Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of North Carolina. Any modification of this Agreement or additional obligation assumed by either party in connection with this Agreement shall be binding only if evidenced in writing signed by each party or an authorized representative of each party. By signing below, the representative of Market warrants that he/she is authorized to execute this Agreement on behalf of Market, and that he/she has obtained all authorizations, approvals, and resolutions from Market that are necessary in order to duly bind Market to this Agreement. In witness whereof, each party to this agreement has caused it to be executed on the date first written above. ENO RIVER RS' MARKET, INC. Name: ~ ~6.~--f- ~: ~ Title: (`tea-,~,,.~,~-~ ORANGE COUN T AROLINA Valerie P. Fousl~ee, chair Orange County Board of Commissioners