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HomeMy WebLinkAboutAgenda - 03-07-2013 - 7a1 ORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: March 7, 2013 Action Agenda Item No. 7 -a SUBJECT: License Agreement for Farmers Market Pavilion —Eno River Farmers' Market, I nc. DEPARTMENT: Environment, Agriculture, PUBLIC HEARING: (Y /N) No Parks and Recreation (DEAPR), Asset Management Services (AMS) ATTACHMENT(S): INFORMATION CONTACT: 1) Draft License Agreement David Stancil, 245 -2510 2) Letter from Eno River Farmer's Jeff Thompson, 245 -2658 Market Vendors PURPOSE: To consider the approval of a new license agreement for the Eno River Farmers' Market, Inc. for use of the Farmers' Market Pavilion from April 1, 2013 through March 31, 2016 (existing agreement expires March 31, 2013). BACKGROUND: On May 5, 2009 Orange County entered into a license agreement with the Eno River Farmers' Market, Inc. (ERFM), for use of the Farmers' Market Pavilion. The Pavilion is located within the County's River Park and is just south of East Margaret Lane behind the Orange County District Attorney's office. On March 13, 2012 Orange County and the ERFM agreed to a one year amendment of this agreement. The amendment included some changes, most notably a clause stipulating payment by the ERFM to Orange County for use of the Pavilion two days each week during the term of the agreement. The agreed upon rate was $500 for the year. A new draft license agreement (attached) continues the $500 annual rate for an additional three years. The agreement also stipulates (at the Market's suggestion) that the ERFM will use the Pavilion only once per week (on Saturdays from 6.00am to 1:00 pm). The Agreement excludes Hog Day weekend, but adds three additional Saturday periods for special events. In total, the number of events does not exceed 54 in a given year. Otherwise, no substantive change from the amendment was made. The County will be responsible for utilities, restroom cleanup, and routine site maintenance. ERFM will be responsible for removing solid waste and recyclable content from the on site containers after each event, as well as a general sweeping of the pavilion floor and a general litter policing of the area. The proposed agreement has been reviewed by the ERFM Board. While in agreement with most of the provisions, the ERFM proposes to instead pay an annual fee of $300 for use of the Pavilion (see attached letter). The ERFM Board plans to use the Pavilion on Saturdays only in the upcoming lease, and has inquired as to a reduction in the annual fee on this basis. FINANCIAL IMPACT: The draft License Agreement includes the same flat rate of $500 per year that was approved by the Board last March. The ERFM proposed fee reduction is an annual $300 rate. The current $500 rate is approximately $9.25 per day, slightly less than the $10 per day rental fee ($540 per year) established in the County's facilities use policy. Should the Board approve the $300 annual rate as requested by the ERFM Board, the rental rate would be approximately $5.55 per day. RECOMMENDATION(S): The Manager recommends that the Board consider the ERFM request for a reduction in license fee to $300, approve the License Agreement and authorize the Chair to sign the Agreement on behalf of the Board. North Carolina Orange County Attachment 1 LICENSE AGREEMENT This License Agreement is made effective as of this the 1st day of April, 2013 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 WHEREAS, the County directed at that time that its operation and administration of the Farmers' Market 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 assumed the administrative duties and operational responsibilities for the Farmers Market beginning in May of 2009; and WHEREAS, the Market desires a license for the use of the County's Farmers Market Pavilion for farmers' 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 K M hereby accept as market of the county the use of the Farmers Market Pavilion as described more fully herein. SECTION ONE GRANT OF LICENSE: DESCRIPTION OF PREMISES AND HOURS OF OPERATION The County hereby grants to the Market a license to occupy and use the County owned facility commonly known as the "Orange County Farmers Market Pavilion" (henceforth, "the Pavilion ") located in River Park, directly behind the Orange County District Attorney's Office at 120 East Margaret Lane, Hillsborough, North Carolina. The Market shall be permitted hereby to occupy the 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 Pavilion 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) Up to three (3) additional days and times throughout the calendar year to serve such specialty and holiday markets on a "first come first served" 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 (C) In the event of a public emergency situation in which the Pavilion is needed for County use during a time scheduled for Market use, the County may temporarily suspend the terms of this License Agreement without penalty to the County or the Market and without such suspension being deemed a breach of this License Agreement. The County hereby agrees not to schedule other events at the Pavilion during the times and dates set forth in subsections A- B above. The 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 Pavilion during the times and days listed above, and for up to three special events sponsored by the market as described in Section One (B) above. SECTION TWO LIMITATION TO DESCRIBED PURPOSE The Market shall utilize the Pavilion for the limited purpose of operating a farmers market in the Pavilion. Any other use of the Pavilion must comply with all applicable federal, state and local laws and must be approved in writing by the County. Any such other use shall constitute and expansion subject to the terms set out in this Section Two. It is intended that the Market may have limited use of the parking area surrounding the 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 Exhibit A, a map of the adjacent parking area, which is attached hereto. Any expansion of the use of the 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 terminated by the County. SECTION THREE LUMP SUM PAYMENT The Market shall pay County for this License at the rate of $500.00 annually, for each year of the term of the Agreement, as a lump sum payable within 30 days of execution of this License Agreement. SECTION FOUR TERM & TERMINATION This License Agreement shall be valid for a period of three (3) years beginning on April 1, 2013, and concluding on March 31, 2016. The County and the Market agree to discuss extending this three year term for an additional two (2) year term prior to its natural expiration. 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. The County and the 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 The Market hereby provides the County with the contact information of two (2) individuals that the 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. 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: Name: Name: Address: Phone: Email: Address: Phone: Email: SECTION SIX CONDITION OF PAVILION & COMPENSATION FOR DAMAGE The Market shall clear the Pavilion (including the restrooms) of all trash and debris at the end of each day in which the Market operates throughout the term of this License Agreement. The Market agrees that it shall compensate the County for the cost of repairs (outside of normal wear and wear) to the Pavilion for damages directly attributed to its use of the Pavilion by the Market or by any vendor or client at the Market. Such damages shall be documented by the County, and an invoice for the repair work undertaken conveyed to the Market, with such invoice payable within 90 days of receipt. SECTION SEVEN INSURANCE 7 The Market shall obtain, at its sole expense, general liability insurance insuring against any and all losses at the Pavilion 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 the Market nor any employee of the Market shall be deemed an officer, employee or agent of the County. SECTION NINE INDEMNIFICATION The 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, or any third party user of, or vendor at, the 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 the 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. Food trucks or other mobile dispensaries of food products shall have all appropriate licenses, inspections, and permits. Any such trucks without the requisite licenses, inspections and permits shall not be allowed on the premises until these requirements have been secured. Such food trucks or mobile dispensaries of food products shall be restricted to operating in the Parking location(s) set out in Exhibit A. The Market shall not issue sublicenses for the use of the Pavilion. Any sublicense shall be void and any attempt to issue a sublicense shall constitute breach of this License Agreement A Market representative 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 (B), 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 the Market warrants that he /she is authorized to execute this Agreement on behalf of the Market, and that he /she has obtained all authorizations, approvals, and resolutions from the Market that are necessary in order to duly bind the 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. Name: Title: ADDITIONAL SIGNATURE PAGE TO FOLLOW 9 ORANGE COUNTY, NORTH CAROLINA Barry Jacobs, Chair Orange County Board of Commissioners Approved as to technical content: Department of Environment, Agriculture, Parks and Recreation 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 sufficiency: Office of the County Attorney FA Exhibit A 10 Parking Attachment 2 January 30, 2013 Frank Clifton Link Government Services Center 200 South Cameron Street Hillsborough, NC 27278 Dear Mr. Clifton We are writing this letter on behalf of the Eno River Farmers' Market (ERFM). As you know we use the Farmer's Market Pavilion on E. Margaret Lane for our Saturday and mid -week markets. It is a great facility and we appreciate the support that the county has extended to the market and 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. However, one area that causes concern is the use fee structure for the Farmer's Market Pavilion (FMP). This fee is and would be $500 annually. Our budget indicates that this would put considerable strain on the ERFM financial position. We have offered to pay $300 annually for using the FMP during our Saturday market. We ask for a reduction since the ERFM will no longer be holding midweek markets which could count for half of our usage hours and also makes up a good percent of the ERFM income. We are asking the Orange County Commissioners to consider the value the ERFM brings to the community and to accept our recommendation of $300 annual payment for using the FMP. Thank you for your consideration, and we greatly appreciate your support. Sincerely, The Eno River Farmer's Market Vendors CC' David Stancil 11