AGREEMENT FOR ORANGE
HOME GROWN FARMERS AND ARTISANS MARKET
THIS AGREEMENT is made and entered into as of __________________, 2023 , by and between the CITY OF ORANGE, a municipal corporation (“City”), and ORANGE HOME GROWN FOUNDATION INC ., a California non -profit corporation, also known as ORANGE HOME GROWN (“OHG”).
RECITALS
A. OHG desires to produce a weekly Orange Home Grown Farmers & Artisans Market (“Market”) to provide a service to the residents of and visitors to Orange by providing quality, clean, sustainably grown, and organic food options.
B. Subject to certain conditions, City desires to make available designated public right of way to assist OHG in providing the Market.
WHEREFORE, for and in consideration of the mutual and respective covenants and promises hereinafter contained and made, and subject to all of the terms and conditions hereof, the parties hereto do agree as follows:
AGREEMENT
1. Term of Agreement.
A. Unless otherwise amended or terminated as provided herein, t he term of this Agreement shall begin January 5, 2024 and be for a two year period with the option for three, one- year renewals. The City Manager is authorized to execute any renewal under this Agreement, so long as a valid Conditional Use Permit (“CUP”) is in place for the Market.
B. City, acting through its City Manager or designee, may terminate this Agreement for any reason by providing a 30-day written notice of intent to terminate to OHG. City shall not be liable for any claim of lost profits.
2. Location.
A. The Market will be held in Chapman University’s Becket Building parking lot (303 West Palm Avenue) on West Palm Avenue between North Cypress Street and North Lemon Street and in the north portion of Chapman University’s Dodge College of Film and Media Arts parking lot (283 N. Cypress Street ), as depicted in the map attached hereto and incorporated herein as Exhibit “A.”
B. All fire lanes shown on the approved plan shall remain free and clear of all objects, materials, vehicles, and other obstructions during setup, during the course of the Market, and at break down of the Market. City may inspect and walk the Market during set up, during the course of the Market, and at break down of the Market, checking fire lanes, street closures, booth set-up, and other operating conditions.
2 C. Exhibit “A” depicts the physical layout for the event, including Market boundaries, booth set-up, closure areas, and fire access. This Exhibit shall be reviewed annually.
3. Hours of Operation.
A. The Market shall be held weekly on Saturdays from 9:00 a.m. to 1:00 p.m. as long as a valid approved CUP is in place. OHG shall ensure that all reasonable measures are taken to mitigate noise between the hours of 6:00 a.m. and 8:00 a.m.
B. All activities in the closure area of West Palm Avenue shall cease promptly at 1:00 p.m. each Saturday, and all equipment shall be removed no later than 2:00 p.m.
4. OHG Obligations.
A. OHG shall produce the Market. “Production of the Market” as used in this Agreement shall mean all aspects of the planning, coordination and execution of said Market including, but not limited to, reviewing and approving applications for vendor booths, preparation and distribution of advertising, obtaining all licenses, permits and certificates, obtaining all insurance required by City, developing a budget and booth fee schedule, providing a safe environment for participants and spectators, and ensuring adequate staff or volunteer manpower for the set-up, production and cleanup of event.
B. OHG shall comply with the hours of operation provided herein.
C. OHG shall furnish all equipment and supplies and shall bear all other costs and expenses reasonably necessary to carry out the purpose of this Agreement.
D. OHG shall reimburse City for all direct cost s and expenses for the Ma rket, including actual staff costs incurred by City in providing materials and services for the closure of West Palm Avenue. OHG agrees that the number of personnel assigned to execute the closure is at the reasonable discretion of the designated City representative. Reimbursement for materials and services shall be due and payable within thirty (30) days of receipt of an itemized statement from City. City will bill OHG quarterly, beginning in April 2024 for each calendar quarter. With regard to City personnel, OHG shall reimburse City for the actual staff time costs incurred related to the production of the Market and street closure. The City may choose to offer OHG a credit for number of hours of maintenance performed at the W.O. Hart Park Historic Orange Grove quarterly. The credit will be equivalent to the City approved hourly rate for the most appropriate and applicable staff. The credit will be issued at the City’s sole discretion on a quarterly basis.
E. OHG shall pay for all damage caused to public and private property within the event footprint during the hours of the event related to Market activities. The City will bill OHG as appropriate.
F. OHG shall pay for all clean-up costs related to Market activities. The City will bill OHG as appropriate.
3 G. OHG shall collect and remove trash from all areas within the event footprint as well as areas immediately adjacent to the event footprint that are impacted by the Market. Trash collection and removal shall occur throughout the Market and at the conclusion of the Market to ensure all trash receptacles are usable throughout the event and immediately upon the conclusion of the event for general public use. OHG shall provide trash receptacles at its own cost and expense. OHG shall provide additional temporary trash receptacles to be placed throughout the event site as needed. OHG shall not dispose of Market trash in dumpsters provided for use by City or other local merchants or residents.
H. OHG shall ensure that its participants park vehicles as required by the Traffic Management Plan, at both the Lemon Street and Cypress Street closure sites, in coordination with placement of the type three barricades to act as safety barriers, and fully close W. Palm Avenue to vehicle traffic. Each vehicle must remain in place for the duration of the closure.
I. Unless otherwise stated herein, OHG shall comply with all conditions of the applicable CUP. Any future expansion in area or in the nature and operation of the use approved by the applicable CUP shall require an application for a new or amended Conditional Use Permit.
OHG shall also comply with all applicable state and federal mandates as they relate to all storm water issues and as directed by City.
J. OHG shall designate an indivi dual to serve as a public contact for any and all inquiries, including, but not limited to, complaints related to the Market, and shall maintain a list of contacts and phone numbers and provide the list to City no fewer than two (2) weeks prior to commencement of the first Market.
K. OHG shall work with designated City representatives for business involving the Market to ensure compliance with this Agreement.
5. City Obligations. City shall provide type three barricades in sufficient quantities to close West Palm Avenue at both Lemon St reet and Cypress Street by 7:00 a.m. each Saturday. City shall pick up these same barricades at or after 2:00 p.m. each Saturday, consistent with a City approved Traffic Management Plan. Staff may adjust the Traffic Management Plan from time to time as needed in an effort to provide optimal safety and minimal impacts to local residents and businesses.
6. Insurance.
A. OHG shall carry workers ’ compensation insurance as required by law for the protection of its employees, if any, during the production of the Market.
B. OHG shall maintain during the life of this Agreement, comprehensive general liability insurance or commercial general liability insurance written on an occurrence basis providing for a combined single limit of two million dollars ($2,000,000) per occurrence with four million dollars ($4,000,000) aggregate for bodily injury, death and property damage.
C. Each policy of general liability insurance coverage shall provide that City, its officers, agents, and employees and City designated volunteers are declared to be additional insureds under the terms of the policy, but only with respect to the work performed by OHG under this Agreement. Policy endorsements to that effect shall be provided to City along with the 4 executed originals of the certificate(s) of insurance. An endorsement to the general liability policy shall be on a form acceptable to the City Attorney. In lieu of an endorsement, City will accept a copy of the policy(ies) that evidences that City is an additional insured as a contracting party an d that such coverage affords City coverage for ongoing work exposure.
D. The insurance policies maintained by OHG shall be primary insurance and no insurance held or owned by Cit y shall be called upon to cover any loss under the policy. OHG will determine its own needs in procurement of insurance to cover liabilities other than as stated above.
E. Any policy or policies of insurance required herein shall contain a provision that no termination, cancellation or change of coverage or of insured or additional insured shall be effective unless ten (10) days’ notice thereof has been given in writing to City.
F. OHG shall immediately notify City if any required insurance lapses or is otherwise modified, and cease performance of this Agreement u nless otherwise directed by City. In such a case, City may procure insurance or self -insure the risk and charge OHG for such costs and any and all damages resulting therefrom.
G. OHG and City shall give each other prompt and timely notice of any claim made or suit threatened and/or instituted against OHG or City related to the Market.
H. If OHG shall require each commercial vendor to obtain general liability insurance, each said policy of general liability insurance coverage shall provide that City, its officers, agents, employees, and City designated volunteers are declared to be additional insureds under the t erms of the policy, but only with respect to the work performed by the vendor, under the terms of its agreement with OHG.
7. OHG Records. OHG shall retain copies of all records relating to this Agreement for a minimum period of three (3) years following the expiration or termination of Agreement. All such records shall be available for inspection, audit or review by an authorized representative of City at any time, upon reasonable notice.
8. Assignability. OHG shall not assign or transfer any interest in this Agreement, whether by assignment or notation without the prior written consent of the City. Any attempted assignment without compliance with section shall be ineffective for any purpose and constitute a breach of this Agreement.
9. Equal Employment Opportunity . During the performance of this Agreement, OHG agrees as follows:
A. OHG shall not discriminate against any employee or applicant for employment because of race, col or, religion, sex, national origin, mental or physical disability, or any other basis prohibited by applicable law. OHG shall ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, relig ion, sex, national origin, mental or physical disability, or any other basis prohibited by applicable law. Such actions shall include, but n ot be limited to the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms 5 of compensation and selection for training, including apprenticeship. OHG agrees to post in conspicuous places, available to employees and applicants for employment, a notice setting forth provisions of this non-discrimination clause.
B. OHG shall, in all solicitations and advertisements for employees placed by, or on behalf of OHG, state that all qualified applicants will receive consideration for employment without regard to race, color, re ligion, sex, national origin, mental or physical disability, or any other basis prohibited by applicable law.
C. OHG shall cause the foregoing paragraphs A and B to be inserted in all subcontracts for any work covered by this Agreement, provided that the foregoing provisions shall not apply to subcontracts for standard commercial supplies or raw materials.
10. Hold Harmless. OHG agrees to hold City, its officers, agents and employees harmless from an y and all claims, liabilities or losses for personal injury, death or property damage, including workers’ compensation claims, arising out of or in connection with work undertaken or equipment provided pursuant to this Agreement to the extent any claim is caused by or results from any acts or omissions, or international misconduct of OHG, its employees, volunteers, or its agents. Further, OHG agrees to provide City, its officers, agents and employees, at the request of City, and at the sole expense to OHG, with the defense of any and all such actions, suits or other legal proceedings brought against City, its agents, officers and employees including any award for attorneys’ fees. OHG shall not be liable for the indemnification and defense of City on claims or litigation arising out of the sole negligence or sole willful misconduct of City.
11. OHG Compliance with Law.
A. OHG shall comply with all federal, state, and local laws, ordinances, regulations and directives applicable to the performance of this Agreement. OHG shall further keep and maintain in effect a ny an d all licenses, permits, notices and certificates as required by law, including a City of Orange business license.
B. In addition to the requirements above, OHG shall comply with all applicable Fire Department guidelines in effect January 1st of any given year during which the Market is produced.
Additional requirements may be added by the Fire Department , as necessar y, and at the Fire Department’s discretion.
12. Independent Contractor. At all times during the term of this Agreement, OHG shall be an independent contractor and not an employee of City. City shall have the right to control OHG only insofar as the resu lt of OHG's services rendered pursuant to this Agreement. City shall not have the right to control the means by which OHG accomplishes services rendered pursuant to this Agreement. OHG shall be solely responsible for, and shall indemnify, defend and save City harmless from all matters relating to the payment of its subcontractors, agents and employees, including compliance with social security, withholding and all other wages, salaries, benefits, taxes, exactions, and regulations of any nature whatsoever. OHG acknowledges that OHG and any subcontractors, agents or employees employed by OHG shall not, under any circumstances, be considered employees of City, and they shall not be entitled to any of the benefits or rights afforded employees of City, including, but not limited to, sick leave, vacation leave, holiday pay, 6 Public Employees Retirement System benefits, or health, life, dental, long -term disability or workers' compensation insurance benefits.
13. Conflicts of Interest. OHG agrees that it shall not make, participate in the making, or in any way attempt to use its position to influence any decision of City in which it knows or has reason to know that OHG, its officers, partners, or employees have a financial interest as define d in Section 87103 of the Government Code.
14. Validity. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement.
15. Governing Law and Venue. This Agreement shall be construed in accordance with and governed by the laws of the State of California and OHG agrees to submit to the jurisdiction of California courts. Venue for any dispute arising under this Agreement shall be in Orange County, California.
16. Notices. Notices and written communications sent by one party to the other shall be personally delivered, by e-mail, or sent by U.S. Mail, postage prepaid, to the following addresses:
“City” “OHG”
City of Orange Orange Home Grown Foundation Inc.
300 E. Chapman Avenue P.O. Box 871
Orange, CA 92866 Orange, CA 92856
Attn: Public Works Director Attn: President or Executive Director
Telephone: (714) 744-5525 Telephone: (714) 397-4699
E-mail: [email protected] E-mail: [email protected]
17. Exclusivity and Amendment of Agreement.
A. This Agreement supersedes any and all other a greements either oral or in writing between the parties hereto with respect to the production of the Market and contains all the covenants and agreements between the parties with respect to such production. Each party to this agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party which are not embodied herein.
B. This Agreement may only be changed by written amendment signed by OHG and the City Manager or other authorized representative of the City, subject to any requisite authorization by the City Council. Any oral representations or modifications concerning this Agreement shall be of no force or effect.
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7 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the dates hereinafter respectively set forth.
APPROVED AS TO FORM: CITY OF ORANGE, a municipal corporation:
By: By:
Nathalie Adourian Daniel R. Slater, Mayor
Senior Assistant City Attorney
ATTEST: ORANGE HOME GROWN FOUNDATION INC.
By:
Pamela Coleman, City Clerk Brian Kunisch, President
By:
Megan Penn
Executive Director
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EXHIBIT “A”
ORANGE HOME GROWN FOUNDATION & ARTISANS MARKET LAYOUT
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EXHIBIT "A"