HomeMy WebLinkAboutAgenda - 03-13-2012 - 5jORANGE COUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: March 13, 2012
Action Agenda
Item No. `~j - ~
~-
SUBJECT: License Renewal for Farmers' Market Pavilion - Eno River Farmers' Market,
Inc.
DEPARTMENT: Environment, Agriculture, PUBLIC HEARING: (Y/N) No
Parks & Recreation (DEAPR),
Asset Management Services
(AMS), & County Attorney
ATTACHMENT(S): INFORMATION CONTACT:
Current License Agreement (2009) David Stancil, DEAPR, (919) 245-2522
Draft New License Agreement John Roberts, County Attorney, (919)
Letter from Eno River Farmers' Market 245-2318
PURPOSE: To consider renewal of the license agreement for the Eno River Farmers' Market
Inc., for use of the Farmers' Market Pavilion through March 31, 2015 (existing agreement
expires April 1, 2012).
BACKGROUND: On May 5, 2009 Orange County entered into a License Agreement
(attached) with Eno River Farmers' Market, Inc. (ERFM for short), for use of the structure now
known as the Farmers' Market Pavilion. The Pavilion is located within the County's RiverPark,
and is just south of East Margaret Lane behind the Orange County District Attorney's office.
The new draft License Agreement (attached) reflects a number of changes that would be
implemented. The current 2009 Agreement was the initial agreement for use of the facility for
the farmers' market, and it allowed for a number of special provisions, including no charge for
the facility usage and waiver of the license fee. However, the current Agreement also
recognized that these concessions were only for the initial three-year term, as reflected in
language contained within Section Four of the Agreement:
"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 of
individuals using the market house. "
To this end, the new Agreement provides for:
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• Changes in the days of usage to match the ERFM's current usage schedule of Saturday
and Wednesday;
• A rate of $20 per four-hour usage period that is consistent with the standard rate
established in the adopted Facilities Use Policy and FY 2011-12 Fee Schedule;
• Exception for use of the facility for Hog Day weekend, and possibly every three years, the
Orange County Egg Hunt;
• Language related to other uses by ERFM, or emergency situations;
• Language specifying parking areas and expansion of uses;
• Terms regarding insurance provisions, food trucks, sublicenses and annual meeting of
parties; and
• Change in facility or department names.
The draft Agreement has been reviewed by the ERFM Board, and while in agreement with most
of the provisions, the ERFM proposes to instead pay an annual fee of $500 for use of the
Pavilion (please see attached letter). The letter also asserts that the proposed fee rate in the
draft Agreement would put `considerable financial strain' on the Market.
Staff contacted the Town of Carrboro regarding a frame of reference for usage fees for the
Carrboro Farmers Market, and learned that under that contract, "The Chapel Hill-Carrboro
Farmers Market, Inc." pays an annual rate of $2,000 to the Town for use of the market facility.
FINANCIAL IMPACT: The draft revised Agreement would institute a usage charge, as
anticipated in the 2009 Agreement. This flat rate fee would be $20 for each usage period, which
corresponds to $160 per month (assuming four Saturday and four Wednesday rentals). The
charge incorporates the established usage rate and method in the adopted FY 2011-12 Fee
Schedule and the Facilities Use Policy. The ERFM has proposed an alternative charge of $500
per year ($4.81 per usage or $41.67/month).
RECOMMENDATION(S): The Manager recommends that the Board approve the License
Agreement and authorize the Chair to sign the Agreement on the Board's behalf.
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~P. 3~~~),z
North Carolina
Orange Couniy
LICENSE AGREEMEN'f
This License Agreement is made effective as of this the C~`~- day of May 2009, by and
between the ENO RNER FARMERS' MARI~ET, INC., a North Carolina nan-profit corporation
having an address of 8707 Art Road, Cedar Grove, North Carolina 27231 (the "Market") and
ORANGE COUNTY, NORTH CAROLINA, a body pol'ttic and corporate, a political subdivision
of the State of.Norih Carolina, having an address of P.O. Box 8181, H'itlsborough, North
Carolina 27278 (the "County")
WITNESSETH:
WHEIZEAS, in ~ebruary 2008 the County approved the temporary admi.uistration and
operation of a Farmers' Market at the County owned Public Market House by the County; and
VJHEREAS, the County duected at that time that ifis operation and admiiustration of the
Fai.mers' Market be wholly replaced by and entity independent of ihe Couniy as soon as
practicable fliereafter; and
VJT~REAS, on January 14, 2009, the Market was organized ii~ the State of North
Carolina as an independent non-profit cprporation by the filing of Articles of Incorporation with
the North Carolina Secretary of Stafe; and
WHEREAS, the Market is prepared and desixes to assuine the admi.nistrative duties and
operational responsibilities for the Farmers' Market; and
WHEREA,S, fhe Cotwty desires the Market to assume the adm.inistrative duties and
operational responsibilities for the ranmers' Mazkef; and
W!-~REAS, the Market desires a license for tb.e use of the County's Public Market
House for farmers' markets subject to the terms o#'this License Agreement; and
WHEREAS, the Counfy desires the Market to utilize the County's Public Market House
for farmexs' markefs subject to the terms of this License Agreement.
NOW, THERERORE, for good and valuable cansiderafion, and subject to the terms and
coiiditions hereinafter set forth, #he County daes hereby license uuto the Market and Market does
hereby accept as Marke# of the County the usa of flie Publie Marke# House as described more
fully lierein.
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SECTION ONE
GRANT OF LICENSE: DESCRIPTION OF PREMTSES AND HOURS ~F OPERATION
County hereby gran#s to Market a license to occupy and use the County ol~vned facility
conunouly known as the "Orange Counry Public Markef House" located directly behind the
Otange County District Attomey's Office at 120 East Margaret Lane, Hillsborough, North
Cazolina (the "Public Market ~Iouse").
Market shall be permitted hereby to occupy the Public Mazket House as follovvs:
(A) Every Saturday throug3iout the term of this Agreement duri.ng the hours of
6:00 AM-1:00 PM; -
(B) Every Tuesday throughout the term of fhis Agreement dciring the hours of
4:00 PM-6:00 PM; and
{C) Addifional days and times tl~u-oughout the calendar year to serve such
specialty and holiday markets on a"first come first serve" basis as
$cheduled with the Orange County Parks and Recreation Department.
Couniy hereby agrees uot to schedule Qther events on the Public Market House during the
times and dates set £orth in Subsections A-C above. Counfy further agrees to make utilities
avai~able at the market liouse (to include pawer and water) and fo provide the market with access
to the restrooms located on the Public Market House during the ti.mes and days listed above.
SECTION TWO
LIMITATION TO DESCRIBED PURPOSE
Market shalt utilize the Public Market House for the limited purpose of operating a
farmers' market on the Public Market Hause.
SECTION THREE
PERIODIC PAYMENTS
Market shall pay Couniy for fhis Iicense at the rate of One Dollar ($1.00) per year
payable in advance.
SECTION FOUR
'I~RM & TER1vIINATION
Tlus License Agreement shaIl be valid for a period of three (3) years beginning ou April
1, 2009. County and Market agree to discuss extending t~iis initial thxee year term for an
additional two (2) year term prior to its natural expixation. However, the parties understand and
agree that the payment tenns described herein reflect a concession ou the part of the County in
order to continue its assistance in establishing a viable fa~mers market. The paymeut for the
license followi.ng the expiration of the initial three year term is lilcely to be inereased at that time
to the then current rate charged to other groups or individuals using the market house_
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Either party may terminate this License Agreement at an.y time, without regard to
pay~nent periods by giving written notice to #he other specifying the date of tertrunation. County
and Market shall use their best efforts ta provide tlie other party a minimum of thirty (30) days
prior s~~ritten notice of its inten# to termi.nate this Agreement. ~
SECTION FIVE
MARICET CONTACT
Market hereby provides County v~~ith the contact informa#ian of Ewo (2) individuais that
County may contact dvring the hours i.n which the farmers market is open to address any and all
i.mmediate issues thaf may arise in regard to this License Agreement_
~-m~~' S". ~~ ~ c ~ -- ~3 z..- Sl ~z ~~% ~C~.~-~ ~ ~ ~~.
Naixie Telephone Numher Etnail Address
~/~uas ~~~~~ q~ ~~G~G~ ~~~~~ ~. ~ J~~ ~~
Name ~- T'elephone Number Email Address
~ECTI4N SIX
CONDTIZON OF PUBLIC MARI~ET HOUSE & COMPENSATION FOR DAMAGE
Market shall clear the Public Market House (including the restrooms} o~ all trash and
debris at the end of each day in wluch the farmers market operates throughout the term of this
License Agreement.
Market agrees fihat it shaII make all xeaso~able repairs to the Public Market Hause for
damages directly attributed to its use of the Public Market House by Market or by and vendor at
the t~4azket.
SECTION SEVEN
INSUIZANCE
Market shall obtain, at its sole expense, geueral liability insurance insuring against ariy
and a11 losses at the market house duzing tha Market's use tllereof. Tius policy shall provide
coverage in the amount of no less than One Million. Doliars ($1,000,Q00). Insurance policies
shall be endorsed (1) ta show Orange Covnty as additional insured, as their interests inay appear
and (2} to amend cancellation notice to 30 days, pursuan# to Narth Carolina la~~v. Certificates of
znsurance shall be signed by a licensed North Caroli~a agent and be amended to show "t~urty
(34) days' notzce of change or cancellatioaz will ba given to the Orange County Risk Manager hy
certified mail."
SECTION EIGHT
RELATIONSHII' OF PA.RTIES
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It is expressly agreed and understood that tlus Licevse Agreement shall not operate or be
construed to creafe tb~e relationsl~ip of landlord and tenant betu~een County a~d Market
whatsoever.
Neither Market nor any employee of the Market shall be deemed an officer, employee or
agent af the County.
SECTION N]NE
INDEMNIFTCATION
Mazket agrees to defend, indemnify, and hold harmless the County, for alI loss, liability,
claims or expense (including reasonable attorney's fees) arising from bodily injury, including
deafh or property damage, to any person or persons caused ix~ whole or in part by the negligence
or misconduct of the Mark~t, except to the extent same are caused by the negligei~ce or willful
tnicconduct 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.
s~cT1oN ~
MISCBLLANEOUS
It is agzeed that this Agreement shall be govemed by, constxued, and enforced i.n
accordance with the laws of the State of North Caroli.na.
Any modificatian of fliis Agreement or additional obligation assumed by either party in
connection with tlus Agreement shall be bi.nding only if evidenced in writing signed by each
party or an authorized representative of each party.
By signing below, the representative of Market wairants that heJshe is authorized to
execute ttus Agreeanent on behalf of Market, and that he/she has obtained ali authorizations,
approvals, and resolutions from Market that are necessary in order to duly bind Market to this
Agreemen~.
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Iu witness whereof, each par[y to this agreement has caused it to be executed an the date
first written above.
ENO RIVER F ' MARKET, INC.
.
By: ~=~ .
rr~~: ,~.~~ s ~~~
Title: ~7.cQ~ .~e. ~
ORANGE CQ , R AR LINA
.~
B~:
Valeri~e P. Fous ee,`G '
Orange County Board of Cominissioners
8
North Carolina
Orange County
LICENSE AGREEMENT
This License Agreement is made effective as of this the 1 st day of April, 2012 by and
between the ENO RIVER FARMERS' MARKET, INC., a North Carolina non-profit corporation
having an address of PO Box 487, Hillsborough, NC 27278 (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 Farmers' Market Pavilion by the County;
and
WI~REAS, the County directed at that time that its operation and administration of the
Fanners' Mazket be wholly replaced by an 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
operation responsibilities for the Farmers' Market; and
WHEREAS, the Market desires a license for the use of the County's Farmers' Market
Pavilion for fanners' markets subject to the terms of this License Agreement; and
WHEREAS, the County desires the Market to utilize the county's Farmers' Market
Pavilion 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 Farmers' Market Pavilion as described more
fully herein.
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SECTION ONE
GRANT OF LICENSE: DESCRIl'TION 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 Farmers' Market Pavilion" located directly behind the
Orange County District Attorney's Office at 120 East Margaret Lane, Hillsborough, North
Carolina (the "Fanners' Market Pavilion").
Market shall be permitted hereby to occupy the Farmers' Market Pavilion as follows:
(A) Every Saturday throughout the term of this Agreement during the hours of
6:00 AM-1:00 PM, with the exception of one Saturday each year when Hog
Day will use it, and one Saturday every three years for use by the Orange
County Egg Hunt. The potential for joint use of the facility by the Market and
Hog Day and the Orange County Egg Hunt will be explored by Market
officers and staff to determine if the exception can be waived. These
exceptions shall be scheduled at the discretion of County and conveyed at
least 60 days in advance to the market; and
(B) Every Wednesday throughout the term of this Agreement during the hours of
3:30 PM-630 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, with initial
opportunity for scheduling of Market events during the annual agreement
discussion, as scheduled and pre-approved by the Director of Orange County
Department of Environment, Agriculture, Parks and Recreation, or his/her
designee; and
(D) In the event of an public emergency situation in which the Farmers' Market
Pavilion is needed for County use during a time scheduled for Market use,
County may temporarily suspend the terms of this License Agreement
without penalty to County or Market and without such suspension being
deemed a breach of this License Agreement.
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
(including power and water) available at the market house to be included in the license rate and
to provide the market with access to the restrooms and water fountain located near the Farmers'
Market Pavilion during the times and days listed above, and for up to three special events
sponsored by the market as described in Section One (C) above.
SECTION TWO
LIMITATION TO DESCRIBED PURPOSE
Market sha11 utilize fhe Farmers' Market Pavilion for the limited purpose of operating a
farmers' market in the Farmers' Market Pavilion. Any other use of the Farmers' Market Pavilion
must comply with all applicable federal, state and local laws and must be approved in writing by
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the County. Any such other use shall constitute an expansion subject to the terms set out in this
Section Two. .
It is intended that Market may have limited use of the parking azea surrounding the
Farmers' Market Pavilion. Such use shall in no way interfere with or restrict the operations of,
nor the use of the parking area by, the Orange County Sheriff. At the discretion of the County
such use of the parking area shall be limited to the areas shown on E~~hibit A, a map of the
adjacent parking area, which is attached hereto.
Any expansion of the use of the Farmers' Market Pavilion may only be approved through
a written amendment to this License Agreement. Such written amendment must be signed by
both Parties. All such expansions must comply with the Orange County Facilities Use Policy.
Any unauthorized expansion may be immediately ternunated by the County.
SECTION THREE
PERIODIC PAYMENTS
Market sha11 pay County for this license at the rate of twenty ($20.00) per four-hour
period of use, in keeping with the adopted Orange County Fee Schedule. This rate is subject to
changes to the Orange County Fee Schedule as it may be approved and amended by the Board of
County Commissioners in the Orange County annual budget. Fees are payable in advance.
Such invoices shall be due within thirty (30) days of receipt.
SECTION FOUR
TERM & TERMINATION
THIS License Agreement shall be valid for a period of three (3) years beginning on April
1, 2012. County and Market agree to discuss extending this three year term for an additional two
(2) year term prior to its natural expiration.
Either party may ternunate 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 CONTRACT.
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
irrunediate issues that may arise in regard to this License Agreement. Notice by electronic mail
shall be sufficient for purposes of this License Agreement. Any notice required by this ~License
may be made by delivering said notice to both individuals listed below at either the physical or
post office address provided or at the electronic mail address provided:
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Name:
Address:
Phone:
Ema.il:
SECTION SIX
CONDITION OF PUBLIC MARI~ET HOUSE & COMI'ENSATION FOR DAMAGE
Market shall clear the Farmers' Market Pavilion (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 a11 reasonable repairs (outside of normal wear and wear)
to the Public Market House for damages directly attributed to its use of the Public Market House
by Market or by any vendor at the Market.
SECTION SEVEN
INSUR.ANCE
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 sha11 provide
coverage in the amount of no less than One Million Dollars ($1,000,000). Insurance policies
sha11 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 sha11 be s~gned 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.
Name:
Address:
Phone:
Email:
Neither Market nor any employee of the Market shall be deemed an officer, employee or
agent of the County.
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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, or any third pariy user of, or vendor at, the Farmers' Market
Pavilion during Market's licensed use, 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
pernutted 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.
Food trucks or other mobile dispensaries of food products shall have all appropriate
licenses, inspections, and permits. Such food hucks or mobile dispensaries of food products
shall be restricted to operating in the location(s) set out in Exhibit A.
Market shall not issue sublicenses for the use of the Farmers' Market Pavilion. Any
sublicense sha11 be void and any attempt to issue a sublicense shall constitute breach of this
License Agreement.
A Market representa.tive shall meet annually with the County Manager or County
Manager's designee to review this License Agreement, discuss the Parties' compliance
therewith, review proposed special Market events as described in Section One (C), and discuss
suggested modifications thereto.
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.
SIGNATURE PAGE TO FOLLOW
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In witness whereof, each party to this agreement has caused it to be executed on the date first
written above.
ENO RNER FARMERS' MARKET, INC.
By: _
Name:
Title:
ORANGE COUNTY, NORTH CAROLINA
By:
Bernadette Pelissier, Chair
Orange County Board of Commissioners
Approved as to technical content:
Department Director
This instrument has been pre-audited in the manner required by the Local Government Budget
and Fiscal Control Act:
Financial Services Director
Approved as to form and legal su~ciency:
Office of the County Attomey
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March 4, 2012
Bernadette Pelissier
Chair Orange County Board of Commissioners
4516 Mystic Lane
Hilisborough, NC 27278
Dear Chair Pelissier,
I am writing this letter on behalf of the Eno River Farmers' Market (ERFM). As you know, we
use the Farmers' Market Pavilion on E. Margaret Lane for our Saturday and mid-week markets.
It is a great facility! We deeply appreciate the support the county has extended to the market,
and we look forward to continuing that relationship into the future.
This correspondence is regarding the proposed License Agreement between Orange County
and ERFM. We have been involved with the creation of this document, and, in general, we are
pleased with the results. One area of concern for our organization is the use fee structure for
the Farmers' Market Pavilion (FMP). This fee would be $20/4 hrs of use, an amount that would
put considerable financial strain on the ERFM. Our budget indicates that we are able to pay
$500 annually for using the FMP during our weekly markets. In addition, we could pay the
standard use fee for approximately three (3) special events per year. An example of such
events would be the Hillsborough Harvest Dinner, one of our annual fundraisers.
Please consider the value the ERFM brings to the community and accept our recommendation
of $500 annual payment for using the FMP. Thank you for your consideration.
Sincerely,
The Eno River Farmers Market Vendors
cc:
Pam Hemminger
Valerie P. Foushee
Alice M. Gordon
Barry Jacobs
Earl McKee
Steve Yuhasz
Frank Clifton