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HomeMy WebLinkAbout05/18/2010, 1 - THURSDAY NIGHT FARMERS' MARKET MANAGEMENT council j ac,Enaa aEpoizt �mh CITY O F SAN L U I S O S P O FROM: Katie Lichtig, City Manager J. Christine Dietrick, City A orne SUBJECT: THURSDAY NIGHT FARMERS' MARKET MANAGEMENT RECOMMENDATION Consider options for management of the Thursday Night Farmers Market and provide direction to staff. DISCUSSION Early this year the Downtown Association opted to discontinue a longstanding relationship with the Farmers' Market Association (FMA) for the management of the Farmers' Market component of the Thursday Night Promotions events that are held on Higuera Street on Thursday nights. Given that the DA and FMA have been operating under the terms of an expired agreement, the DA opted, instead, to assume direct management of the market and took all necessary steps to accomplish that. On January 19, 2010 Peter Jankay, representing the FMA, requested Council intervention to reverse the DA's decision and return management to the FMA. On February 2, 2010, the DA made a presentation to Council providing information about the management changes. Council also received information from the FMA and public input in favor of returning market management to the FMA. At the conclusion of the presentation and public comment on the matter, Council consensus was that the DA and the FMA should work cooperatively to resolve their differences and reach an agreement to return market management to the FMA. Council advised both parties that if an agreement could not be reached, it would consider directing staff to pursue amendments to the contract between the DA and the City. Following the Council meeting, local mediator Scott Radovich offered to donate his services to assist the parties in reaching a mutually agreeable resolution. Both parties agreed to participate in mediation, which staff understands resulted in a memorandum of understanding outlining a set of"deal points," and a commitment to negotiate a final agreement. Subsequent efforts to finalize the agreement have been unsuccessful. The DA has related its perspective that the FMA added substantive provisions beyond those agreed to in the mediation session and that the FMA has refused to incorporate necessary agreement terms relating to insurance and business license requirements, among other things. The FMA has related its perspective that the DA has refused to continue negotiations or to respond to its requests for clarification of those proposed agreement terms that were objectionable. After discussing the matter with representatives for both sides, the City Manager I- / Thursday Night Fanners' Market Management . Page 2 and City Attorney offered to participate in and help facilitate further negotiations in an effort to bring the matter to a mutually agreeable conclusion. The FMA was receptive to staff's offer and the DA Executive Director agreed to consider the offer, but indicated that she would need to have the Board of Directors make a decision as to whether it wanted to proceed with staff participation. While the DA continued to consider staff's offer to assist in further negotiations, staff also requested that both parties provide staff with a list of deal points that represented each side's "best case scenario" resolution to assist staff in the event the matter ultimately needed to return to Council for further staff direction. The responses of both the DA and the FMA to that request are attached hereto as Attachments I and 2. In discussing the path forward with DA staff early last week, City staff advised that it would be necessary for the DA to agree to an extension of a contract termination notification provision in the agreement that requires the City to give the DA notice of an intention to terminate the contract at least thirty days prior to the end of the fiscal year. This fiscal year ends June 30, 2010, which would require the City to provide notice of intention to terminate the contract at the end of this fiscal year no later than May 30, 2010. Because May 18, 2010 is Council's last meeting date prior to that deadline and staff does not have the authority to limit Council's contractual remedies without majority Council direction, it would have been necessary to obtain an extension of the deadline in order to proceed with further negotiations without waiving any of Council's options. The DA Board met on May 11, May 14, and May 17, 2010 to consider this matter. Executive Director Deborah Cash notified City staff this afternoon that the Board had voted not to extend the notification deadline in its contract with the City. 'As a result, City staff felt compelled to place this matter on a special meeting agenda for Council direction. The DA Board is amenable to returning to mediation if a new independent mediator is selected and the City is a participant in the mediation. While the FMA was initially receptive to staff's offer to facilitate further negotiations, the FMA today related conditions to further negotiations that included conclusion of negotiations by Wednesday May, 19 and return of market management to the FMA by Thursday, May 20. When the attorney for the FMA learned that this matter would be heard by the Council, she indicated that the FMA Board was flexible on this issue, but recognized that this was moot based on the decision of the DA Board of Directors. The FMA previously related to staff and Council its feeling that negotiations between the DA and the FMA had broken down and that the parties had reached stalemate and requested Council intervention to bring this matter to resolution. (See Attachment 3) In light of recent events and the divergent positions of the parties, it does not appear resolution is imminent and staff is seeking Council direction at this time. Council Alternatives The City's current contract with the Downtown Association nuns from July 1, 2009 until June 30, 2011. (Attachment 4) The current contract provides that the DA will conduct promotional activities for the benefit of tourism and business in the downtown. The production of Thursday Night Promotions, which includes the Fanners' Market component of the Thursday night activities on Higuera Street, is one component of the scope of services that the Downtown f I" - Thursday Night Farmers' Market Management Page 3 Association is obligated to provide to the City under the contract. The contract does not include any requirements with regard to the management of the Farmers' Market, nor does it control the DA's selection of vendors who participate in the market. Thus, the available options that can be compelled by the City prior to the end of this fiscal year are rather limited. Those options are set forth below. 1. Direct the City Manager to take no further action, maintaining current Downtown Association management of the Farmers'Market portion of Thursday Night Promotions The Downtown Association has conveyed its strong opinion that the market has been running more smoothly since it assumed direct management of the market. The DA has shared survey results supporting its contention that the majority of Farmers' Market participants are satisfied or more than satisfied with the DA's management of the market and the DA Board believes it is both the best and most capable manager of the market. The DA has represented that it is willing and able to continue to provide a high quality certified Farmers' Market to the community. Because the contract between the City and the DA does not specifically govern management of the market, Council could opt to take no further action and to revisit the issues surrounding market management as part of negotiations of a successor contract. 2. Request that the parties continue to pursue voluntary mediation to reach an agreement to return market management to the FMA, but take no further action if negotiations are unsuccessful. The FMA Board has represented that it remains willing to participate in further negotiations to reach an agreement to resume management of the Fanners' Market, but the FMA Board has expressed a strong desire to resume management immediately. The DA Board advised City staff that it was willing to return to mediation in an attempt to reach an agreement with the FMA, provided that the City would be a party to that mediation, that there would be a new mediator, and that the parties would start negotiations fresh, without regard to conceptual agreements reached in the prior session. The DA Board has indicated that, upon reflection after the mediation session, it concluded that some of the terms reached at the prior mediation session were not acceptable and needed to be reconsidered. Under this option, pursuit of further mediation between the parties would be voluntary and Council would forego the opportunity to consider termination of the DA's contract in the current fiscal year. Council could revisit the contract in the next fiscal year if negotiations were unsuccessful, but termination of the contract mid-term would be more complicated due to the nature of assessment area disbursements to the DA, which are made as assessments are collected at the beginning of the fiscal year. 3. Direct the City Manager to pursue a contract renegotiation with the Downtown Association in order to return market management to the FMA. If Council wishes to see the management of the Market returned to the FMA, Council could direct staff to pursue contract negotiations with the DA either to incorporate a provision requiring that the DA contract with the FMA, or permitting the City to contract directly with the FMA, for market management services, as has been suggested by the FMA. There is nothing in the /-3 Thursday Night Farmers' Market Management Page 4 contract that would require the DA to accommodate such a request for renegotiation. However, the contract does provide that the City may terminate the agreement "...at any time by giving written notice of election to terminate to the other party at least thirty (30) days prior to the end of the fiscal year." Thus, if Council wishes to give firm direction to the staff and convey a clear message to the DA to pursue renegotiation of the contract to accomplish the FMA resumption of market management, it may wish to do so in combination with alternative direction to City staff to provide notice of election to terminate the contract in the event the DA refuses to consent to renegotiation of the contract. If Council wishes to pursue this option, Council should recognize that the scope of services of the contract with the DA goes far beyond Thursday Night Promotions activities and includes such other events as Concerts in the Plaza and the traditional Downtown Holiday Activities. If Council were to terminate the contract with the DA in this fiscal year, it would need to direct staff to immediately pursue a contract with a replacement vendor for the services being provided by the DA, which may be difficult to implement on short notice. 4. Direct the City Manager to pursue a contract renegotiation with the Downtown Association in order to assume direct City management of the Farmers'Market portion of the Thursday Night Promotions. Council could determine that the best interests of the market are served by the City assuming direct management of the farmers' market portion of Thursday Night Promotions. Council could direct City staff to pursue a contract renegotiation with the Downtown Association to permit direct City management of the market. While the City's Thursday Night Promotions have unique elements, this model of market management is in place in other areas in the state, like Santa Monica. If Council were to pursue this option, staff would request authority to hire a qualified market manager, who would be compensated from the revenues generated from fees paid by farmer vendors to participate in the market. It is the City's understanding that vendors currently pay five percent (5%) of gross revenues from sales at the market to the market manager, yielding approximately $20,000-$30,000 to cover the expense of the market manager. Staff has not yet had the opportunity to analyze whether the proceeds from vendors would be sufficient to cover the City's costs of market management. If Council wishes to pursue this option, staff would undertake this analysis immediately. Again, the contract currently provides no requirement that the DA accommodate a request by the City to renegotiate the terms of the contract to allow for direct City management of the Farmers' Market. Thus, the only way for the Council to compel such renegotiation would be in conjunction with authorization to terminate the contract in the event the DA refused to renegotiate. FISCAL IMPACT There is no fiscal impact to the City associated with option number one, above. The fiscal impacts of options two and three are uncertain at this point and depend largely on the willingness { Thursday Night Farmers' Market Management Page 5 of the DA to renegotiate the terms of the contract pertaining to the farmers' market portion of Thursday Night Promotions, while continuing to provide other promotional services under the contract. Thele are potentially significant fiscal impacts associated with the loss of events like Concerts in the Plaza, but just as with other fiscal impacts, sufficient analysis needs to be pursued if this path is followed. ATTACHMENTS 1. E-mail from Stephen Johnson dated April 30, 2010 re DA negotiation status with surveys 2. Summary of FMA desired "deal points" from Peter Jankay and supplemental information 3. Letter to Council from Peter Jankay and Philip Langston dated April 23, 2010 4. Agreement between DA and City G:\Agenda-Ordinances-Resol\Farmers'Market Management\CAR.DA-FMA contract Issues.2010.5.I0.dot ATTACHMENT I From: Stephen Johnson [slolaw@pobox.com] Sent: Friday, April 30, 2010 4:32 PM To: Dietrick, Christine Cc: Deborah Cash Subject: Information Update on DA/FMA Negotiations Attachments: Participant Survey Analysis Produce Section.xls; Survey comments Produce section.xls Ms. Dietrick: I have received your request to provide information about how the Downtown Association would like to see the matter of management of the Farmers Market portion of Thursday Night Promotions resolved. After conferring with my client I would like to offer that it is not the belief of the board that negotiations have collapsed. An offer to return to mediation has been extended and remains open. I have also been asked to convey that it appears to the board president and the executive director, absent a meeting of the board to corroborate this sentiment, that statements made by FMA in its letter dated April 23, 2010 are inaccurate, incomplete and/or misleading. The Downtown Association feels it has participated in many hours of meetings, including mediation, and at each turn finds resistance and new demands. The DA believes it has been diligent and sincere in working to resolve the issues surrounding safe and successful management of the event, including spending a lot of money in trying to do so. That FMA will not engage in a contract with the DA is not an indication that negotiations have collapsed; however, due to continued frustrations with the process, the DA❑s patience is wearing thin. A recent survey (attached) of produce vendors at TNP indicates that nearly all participants are satisfied, or more than satisfied with the current management of the event by the Downtown Association. We are confident that the farmers interests are being protected during this negotiation period. Finally, it is the hope of the Downtown Association that Council consider allowing the Downtown Association, with whom it contracts to run TNP, to manage all aspects of the event❑including subcontractor negotiations❑particularly given that its contracted activities with the City have had no previous problems, issues or breaches of contract and that the event is currently operating smoothly. Again, we stand ready, willing and able to mediate this matter further to a contractual conclusion with the FMA. Steve Johnson ATTACHMENT 1 SURVEY ANALYSIS 5 4 3 2 1 Question 1 23 18 1 1 0 Question 2 24 17 1 1 0 Question 3 26 . 15 1 1 0 Question 4 25 14 3 1 0 Question 5 24 14 5 0 0 Question 6 27 12 4 0 0 Percents Excellent-5 Very Good-4 Good-3 Fair-2 Poor-1 1 53% 42% 2% 2% 0% 2 56% 40% 2% 2% 0% 3 60% 35% 2% 2% 0% 4 58%. 33% 7% 2% 0% 5 56% 33% 12% 0% 0% 6 63% 28% 9% 0% 0% Excellent-5 Very Good-4 Good-3 Fair-2 Poor-1 1 53% 42% 2% 2% 0% Excellent-5 Very Good-4 Good-3 Fair-2 Poor-1 2 56% 40% 2% 2% 0% Excellent-5 Very Good-4 Good-3 Fair-2 Poor-1 3 60% 35% 2% 2% 0% _Excellent-5 Very Good-4 Good-3 Fair-2 Poor-1 4 58% 33% 7% 2% 0% Excellent-5 Very Good-4 Good-3 Fair-2 Poor-1 5 56% 33% 12% 0% 0% Excellent-5 Very Good-4 Good-3 Fair-2 Poor-1 6 63% 28% 9% 0% 0% ATTACHMENT Question 1 2% 2%-\ 0% Ids 12 Excellent-5 T 0 Very Good-4 42% +, Good-3 54% s Fair-2 ®Poor-1 Y w W. Question 1.: How would you rate the overall satisfaction with the service you receive from SLO Downtown Assocation? Question 2 2% 2%1 0% ^vim L m Excellent-5 40% a Very Good-4 Good-3 56% 2 Fair-2 ®Poor-1 :r. Thinking about your most recent contact, how would you rate the representative's ability to help you or to get to someone who could help you? r } ATTACHMENT Z Question 3 2%1 2%-1 0% °• Im Excellent-5 35% - m Very Good-4 Good-3 9 Fair-2 " 61% 0Poor-1 How would you rate the representatives overall knowledge of your situation or question? Question 4 2% 7% 0% X a Excellent-5 a Very Good-4 33% r � Good-3 @ Fair-2 58% ®Poor-i T #4 F How would you rate the overall satisfaction as a participant in Thursday Night Promotions Farmers' Market? � - 9 ATTACHMENT 1 Question 5 12% o% E7 Excellent-5 ®Very Good-4 Good-3 Ltd• flc K _ . P.- 33% 55% ER Fair-2 � •" , * " _ ®Poor-1 How would you rate the representatives on helpfulness, in other workds, a willingness to assit you? Question 6 9% 0% k' 03' r— M Excellent-5 28% ®Very Good-4 Good-3 G Falr-2 . T ti r` 9 ®Poor-1 63% e How likely are you to recommend Thursday Night Promotions Farmers' Market to a friend or prospective vendor? ATTACHMENT Z Produce Survey Analysis 5 4 3 2 1 Question 1 15 8 3 1 0 Question 2 16 7 4 0 1 Question 3 14 9 2 0 2 Question 4 10 10 7 0 1 Question 5 19 4 5 0 0 Question 6 1 15 7 5 0 1 Percents Excellent-5 Very Good-4 Good-3 Fair-2 Poor-1 1 54% 29% 11% 4% 0% 2 57% 25% 14% 0% 4% 3 50% 32% 7% 0% 7% 4 36% 36% 25% 0% 4% 5 68% 14% 18% 0% 0% 6 54% 25% 18% 0% 4% Excellent-5 Very Good-4 Good-3 Fair-2 Poor-1 1 54% 29% 11% 4% 0% Excellent-5 Very Good-4 Good-3 Fair-2 Poor-1 2 57% 25% 14% 0% 4% Excellent-5 Very Good-4 Good-3 Fair-2 Poor-1 3 50% 32% 7% 0% 7% Excellent-5 Very Good-4 Good-3 Fair-2 Poor-1 4 36% 36% 25% 0% 0% Excellent-5 Very Good-4 Good-3 Fair-2 Poor-1 5 68% 14% 18% 0% 0% Excellent-5 Very Good-4 Good-3 Fair-2 Poor-1 6 54% 25% 18% 0% 0% 1-�l ATTACHMENT Question 1 4% 0% 11% ®Excellent-5 ®Very Good-4 p Good-3 55% lea Fair-2 30% ®Poor-i a How would you rate the overall satisfaction with the service you receive from SLO Downtown Assocation? Question 2 4% 0% 14% in Excellent-5 M Very Good-4 Good-3 57% U Fair-2 25% w; ®Poor-1 Thinking about your most recent contact, how would you rate the representative's ability to help you or to get to someone who could help you? - " ATTACHMENT 2 Question 3 o% 7% 7%-\ m Excellent-5 ®Very Good-4 53% Good-3 IN Fair-2 33% ®Poor-1. �W How would you rate the representatives overall knowledge of your situation or question? Question 4 0% 0% 26% 37% m Excellent-5 ®Very Good-4 Good-3 g Fair-2 ®Poor-1 37% How would you rate the overall satisfaction as a participant in Thursday Night Promotions,Farmers' Market? 1-/3 ATTACHMENT Question 5 o% o% 18% Y . a Excellent-5 ®Very Good-4 14% Good-3 9 Fair-2 r ®Poor-1 sw' How would you rate the representatives on helpfulness, in other words, a willingness to assist you? Question 6 0% 0% 19% .e Ea Excellent-5 ®Very Good-4 x. Good-3 55% M Fair-2 ®Poor-1 26% v How likely are you to recommend Thursday Night Promotions Farmers' Market to a friend or prospective vendor? 1 �� - ATTACHMENT I WAITLIST Date Name City Requested Produce Louis Cuellar Fowler CA 24-Feb-10 David Lee Lompoc 4-Mar-10 Walnuts &Walnut Oil Pablo Sanchez Los 011vos 26-Feb-10 Olive Oil Alejandra Valadez Santa Maria 5-Apr-10 Strawberries Have also passed out a -roximatl 7-10 business cards and app lications for potential farmers. Remove market management-uncertainty-sign a contract with the FMA Knowledge of market regulations by all management So far so good Advertising fruits and veggies for making of family meals Keep everything the same We need a permanent spot We want farmers to run market Encourage people to bring bags, more areas for people to sit Bring back the old management Keep the same. Don't move our 5%stall fee Not going back to the SLO Association No changes None No Changes Become a more visable presence within the farmers section. No Changes ATTACHMENT �- The following is a summary of critical FMA "deal points." More detail is contained in the enclosed proposed"Agreement"(reflecting FMA proposed revisions) with the DA. Relationship with DA. • Preferred: The FMA would be independent from the DA and would contract directly with the City to operate the farmers portion of TNP. • Would accent: The FMA to be fully and completely in charge of all aspects of the operation of the farmers part of the TNP, and would enter a contract,"Agreement," (containing acceptable terms and conditions)with the DA. FMA space allocation* • * The entire 800 block, plus 4 feet from the curb extending into Chorro Street, and 13 feet from the curb extending into Monro Street, and starting 4 feet in the Morro street intersection, and extending 119 feet in the 900 block. In the 800 block farmers will alternate sides monthly • See attached map, Exhibit A. Note shaded farmers area. • * Except for sidewalks, non-farmer vendors or other non-farmer participants will not setup in the farmers area • * Farmers will not be required to off load. • #Five parking spaces/passes on Morro Street for farmer support vehicles Financial Relationship ** The FMA would quarterly pay the DA 1%of the total sales by all farmers at the TNP and 15%of hard costs: trash, barricades,janitorial, security as invoiced. Communications with the DA DA will appoint a liaison who will communicate any and all fanners related issues to the FMA liaison designated by the FMA board Disputes will be negotiated between DA and FMA board representatives. This includes any issues pertaining changes in the street(construction, modifications, etc.). Should negotiations fail parties would enter mediation. * These items have been negotiated and agreed to by the DA and FMA. Note that this was a negotiated item. The FMA gave up 60' in the 700 block,and the DA provided 13' in the Morro Street intersection. To maintain a 20' fire lane farmer vehicles in the expanded sidewalk area must park parallel,and this translates fewer farmer spaces in the same location. FMA net loss is 4 farmer spaces. # DA has provided FMA with such passes for several years. ** This financial relationship is the same arrangement the DA and FMA have had for many years. ATTACHMENT �- AGREEMENT THIS AGREEMENT is entered into as of the_day of March, 2010,between the SAN LUIS OBISPO DOWNTOWN ASSOCIATION, a 501(c)(6)Non-Profit Corporation organized under the laws of the State of California,with a place of business at 1108 Garden Street, San Luis Obispo, California 93401 ("DA"), and the SAN LUIS OBISPO COUNTY FARMERS' MARKET ASSOCIATION("FMA"),a Mutual Benefit not for Profit Corporation, with its mailing address at P.O. Box 16058, San Luis Obispo, CA 93406. The DA and FMA are collectively referred to herein as "the Parties. " RECITALS: A. The DA is no longer an advisory body to the San Luis Obispo City Council but rather operates as an independent 501(c)(6)non-profit corporation. Therefore,the DA is an independent entity from the City of San Luis Obispo,and this Agreement is between the DA and the FMA, not the City of San Luis Obispo, which is not a party to this Agreement. B. The DA has a contract with the City of San Luis Obispo,with a term from July 1, 2009 through June 30, 2011,to host a weekly event known as Thursday Night Promotions("TNP"). £ er-s Mar-ket. C. The Parties desire to set forth herein the terms of their agreement by which the FMA will resume operation of the Farmers'Market portion of the TNP. The FM^ 4shes to contfact VAth NOW,THEREFORE, THE PARTIES AGREE as follows: 1. Term o : The term of this Agreement Faeneing commences March _, 2010 (the "Effective Date') and ending N4areh and terminates June 30, 2011 (the "Initial Term'). This Agreement shall automatically renew for an additional one-year term commencing July 1, 2011, unless one of the following occurs: (1) Either the FMA or the DA gives notice to the other, in writing and not less than 30 days prior to expiration of the Initial Term, of its intention not to renew the Agreement for an additional term; or(2) The Agreement between the City of San Luis Obispo and the DA to operate the TNP is no longer in effect after June 30, 2009. 2. DA's Obligations: The DA shall: ■ Provide the FMA,for the FAM 's exclusive use, with an area to operate the Farmers' Market portion of TNP dessr-ibed as follows (hereinafter the "FMA Area'): s o 800 block of Higuera Street: The entire block plus 4 feet from the curb extending into Chorro Street, and 13 feet from the curb extending into Morro Street. With the exception of the 13 foot section extending into Morro Street, FMA members in the 800 block of Higuera Street will set up on alternate sides of the street on a monthly basis; and ATTACHMENT o 900 block of Higuera Street: 119 feet extending from the Morro Street curb, east toward Osos Street,plus 4 feet beyond the Morro Street curb into Morro Street. FMA members in the 900 block will not set up on alternate sides of the street and will only set up on the east side of the 900 block(the First Bank side). Exhibit "A", attached hereto and incorporated herein by this reference, is a diagram depicting the FMA Area. and 8 Northwe s+ cvici oFnAezzv Street e ite: aing eastward13 feet into the intefseetien pEeNidiag there is a 20 feet fife lane obsen,ed; and this iven .:11 not .hewn to sides of the s4eet ad • Continuing eleng the .. „th side of HiguefE� 119 C et Gef the s ..theast amu`=e NileFfe heading et toward Oses Street, e these ade ..a, e+ aker..ete sides of the some+ v A41 FMA vendersyAll E1peina. . .'thin these designated areas ..1..and%i11 d beainwest, Provide the FMA with five parking passes for parking on Morro Street valid for the duration of this Agreement. ■ No non-FMA vendors shall be permitted by the DA to set up or sell anywhere within the FMA Area, including opposite from, or intermixed with, FMA members'spaces. The FMA Area is reserved for the sole use of the FMA and its members. ■ The DA shall not interpret FMA rules nor provide a waiver or exemption from FMA rules and regulations to any FMA member participating at the TNP. ■ Indemnify, defend and hold harmless the FMA, regardless of responsibility,from all costs, expenses, suits, liabilities, damages, attorneys fees and claims of every type, including, but not limited to those arising out of injury or death of any person, or damage to any real or personal property of any person, including the DA or non- FMA vendors,for any injury or death of any person, or damage to any real or personal property of any person, including the DA or non-FMA vendors, relating to the operation by the DA or non-FMA vendors of the portion of TNP outside of the area operated by the FMA. 3. FMA's Obligations: FMA shall: l � � Al IALHMENT �- Participate in each and every weekly event known as"Thursday Night Farmers Market" except in the case of rainouts causing the DA to cancel events,or unforeseen situations requiring cancellation of events. "sueh as the Fr-i&ys ° Carry,pay for and provide proof of the following insurance: (i) general liability insurance in an amount of no less than one million dollars, and "ere ^ Ovate (ii) w e&ffs' vender-,thee DA and the City of San Luis , with the DA and the City of San Luis Obispo named as additional insureds on said policies. ■ FMA will observe a minimum of a 20 foot fire lane within the FMA Area. ■ FMA members shall not be required to off load at any of their spaces within the FMA Area. ■ The FMA will be solely responsible for setting and enforcing FMA rules and regulations for its members participating at the TNP. All FMA matters including space assignments within the FMA area, issuance or citations and instructions to FMA members, are within the exclusive control of the FMA. ■ Indemnify,defend and hold harmless the DA and the City of San Luis Obispo, regardless of responsibility, from all costs, expenses, suits, liabilities, damages, attorneys fees and claims of every type, including, but not limited to those arising out of injury or death of any person, or damage to any real or personal property of any person, including the FMA or the produce vendors, for any injury or death of any person, or damage to any real or personal property of any person, including the FMA or the pFeduee FMA vendors,relating to the operation by the FMA or the pFeduee FMA vendors of the Farmers Market portion of TNP. ■ Comply with all applicable city, county, state and federal laws, regulations, codes and ordinances, and all rules and regulations of the DA, as posted on the DA website as of the Effective Date of this Agreement. ■ Provide copies of Certified Farmers Market certification and Environmental Health certificates, . —rI Designate at least two unrelated members of FMA as active members of the TNP Committee. Such FMA designees will attend the TNP Committee meeting on the second Wednesday of each month. Minutes of TNP Committee meeting at which any issues relating to the FMA or its members are discussed or considered shall be approved only at a subsequent TNP Committee meeting attended by the FMA members of the TNP Committee. The DA shall email all such approved TNP Committee minutes to the FMA Administrator, -I 9 ATTACHMENT who will make a copy available to FMA members at the FMA signout area at the next TNP. as mpfesentatives efthe "m 4e street " . #—Appliesfiens Ne- venders w • Paffi6ipatien t f • Speeial events tUrban eeas4aifits 4. Payments: The FMA agrees to pay the DA- 1% of the total nightly amount collected from pr-eduee FMA vendors, to be paid quarterly: January, April,July and October. (5% eelleeted by the FMA, • it 19%= of this n pairs to k�) And 15%of hard costs: Trash, Barricades,Janitorial, Security as invoiced. Liaisons: The parties recognize that the use of liaisons can be an effective means of communication between the DA Board and the FMA Board, and can be a means by which relations between the two boards are strengthened. Aeewdiagly,each weaM eff-s . liai..en ether'sposition on the The DA and FMA will each designate a liason to the other Association's Board(hereinafter the "DA liason"and "FMA liason". Should the DA have issues with the FMA or is considering taking an actions that may affect or involve the FMA or its members who participate in the TNP, the DA liason will first give written notice to the FMA liason before such issues or actions are raised before the TNP Committee. 6. Dispute Resolution: If any FMA representative or FMA participant on the TNP Committee is dissatisfied with any TNP rule or decision, said person or entity must first submit in writing an appeal to the TNP Committee. If said appellant is dissatisfied with the TNP Committee's decision on appeal, said appellant may then appeal in writing to the DA Board of Directors. Prior to any such appeal being heard by the DA Board, representatives from the boards of the DA and FMA must convene in an effort to resolve the issue(s). If satisfaction is not achieved from this process, the parties agree to mediate any remaining dispute or claim, including any which may arise between the parties to this Agreement regarding this Agreement, before resorting to arbitration or court action. Mediation fees, if any, shall be divided equally between the parties. If, for any dispute or claim to which this paragraph applies,any party commences an action based on a dispute or claim, without first attempting to resolve the matter through mediation, or refuses to mediate after a request has been made, then that party shall not be entitled to recover attorneys fees, even if they would otherwise be available to that party in such an action. / . � ATTACHMENT �- 7. No Public Airing: The parties agree not to go public or to the media with the their disputes or grievances,btef to abided unless and until the Dispute Resolution procedures outlined above have first been.exhausted. 8. Default. In the event either party defaults in the performance of any of its obligations under this Agreement, in addition to any other remedies provided herein or by applicable law, the non-defaulting party shall have the right to terminate this Agreement if within.30 days after providing the defaulting party with written notice of the default and the intent to terminate, the default remains uncured. 9. Relationship of Parties: The parties hereto intend for their relationship to be that of independent contractors, and nothing contained in this Agreement shall be construed to create a partnership or joint venture of any kind. 44 Emergency Decision Making:If, for any reason, a change in the urban streetscape, a construction project, an emergency street project, an act of God, or some other unforeseeable emergency circumstance arises, the FMA representatives to the TNP Committee and the FMA liason will be advised in writing immediately and the FMA Administrator and Board will be included in decisions made regarding changes to the market layout, space assignments or other factors within the FMA Area. If there is a dispute which cannot be resolved by the DA and FMA, then the Dispute Resolution procedures set forth at Paragraph 6, above, will be followed. ; however-,the affil detpmAinAtion of*h TNN 11. No Bans or Boycotts: The parties agree that there shall be no bans or boycotts by either party unless and until the dispute resolution process described in paragraph 5, above, has been completed. 12.Notices: Any written notice to either party required under this Agreement shall be served by sending such notice by first class mail or other agreed delivery method to that party at the address above, or at any different address the parties may later designate for this purpose. Notice shall be deemed received three (3) calendar days after deposit into the United States Mail. 13. Attorneys Fees: In any action or proceeding ion between the p Parties arising out of this Agreement, the prevailing party shall be entitled to reasonable attorneys fees and costs from the non-prevailing party, except as provided in paragraph 5. 14. Time of Essence, Entire Contract; Changes: Time is of the essence. All understandings between the parties are incorporated in this Agreement. Its terms are intended by the parties as a final, complete, binding, enforceable and exclusive expression of their Agreement with respect to its subject matter;and may not be contradicted by evidence of any prior agreement or contemporaneous oral agreement. If any provision of this Agreement is held to be ineffective or invalid, the remaining provisions will nevertheless be given full force and effect. Neither this Agreement nor any provision in it may be extended, amended, modified, altered or changed except in writing. This Agreement and any supplement, addendum or modification, including any copy, may be signed in two or more counterparts, l�� ATTACHMENT all of which shall constitute one and the same writing. Signatures transmitted by facsimile or email shall have the same force and effect as originals. Dated Natalie Tartaglia President, San Luis Obispo Downtown Association Board of Directors Dated Deborah Cash Executive Director, San Luis Obispo Downtown Association Dated Philip Langston President, San Luis Obispo Farmers' Market Association Dated Peter Jankay Administrator, San Luis Obispo Farmers' Markey Association i-ate ATTACHMENT �- Exhibit A Higuera The FMA area is shaded hlOck r r .: curb Marro l .14 > rr ry UAV,block . L r: 5 ; y . l y� Charra curb ATTACHMENT `7 ATTACHMENT loQiams in the bottleneck would make market visitors uncomfortable and would make business dijjkult If one stands on the bed of a truck for vendors and farmers during the summer months one sees a sea of visitor heads. It is amazing! O e e e e O In the 700 block the vendor table to vendors °° °° °° table distance is 26 feet. During the ,.., ,, ... .. vendors summer months this area is literally °' O °° °° °° packed with people. shoppers •o O" v �' o e . - e s e• ee Oee eo •o O �ti ^ v ,.. •• In the bottleneck section of the 800 e e •• -- e e .. block the table distance between 00 •• O farmer and DA vendor is to be 20 shoppers •e e. e e e e sho °• .. -- -- O e -- feet. This amounts to about a 25% constriction from the 700 and upper •• 800 blocks. `� 0 •• •• v ° People coming in from the 25% ° e ° wider parts of the 800 block and ve ee v ee � e �� e•v e •° e e •° .• °. e e e e e _- people coming in from the 25% Chorro street O O v v v^ °0 v v wider 700 block will be packed °' °° •^ °° even closer together as they are DA �� v e e • v v e o e e o e v e e e e e e e e funneled into the 150 foot long vendors ^ •• v o °e farmers -- eee° � . constriction bottleneck. oe ee v v More people would be bumping e e -- .. .e -- .• v �- into each other, and the resulting bottleneck `"••- ° " 'e;"•• 00 congestion would make it difficult Sidewalk for would be patrons to shop at a seating is "° °° °• •• ••v 00 vendors table. ,, •• `. expected to take °O ° °° ' ^ ° °° •• vee v •• v e � up all but 6 feet , °° °° The farmers have switched sides of the sidewalk Do 0. °° °° •• •• °° every month for over 25 years. In width °, °° ee ,, •• this way every other month there -- •°• •° °° °° °^ ee are no visual obstructions from the oe oe � v v v v street to a merchant's storefront. n0 "ev e o O endors e e e e 0 .% °° O '• •• If in the bottleneck section farmers its side e e O O 0 �— „ v and DA vendors are on opposite o� •° e hoppers sides there will always be visual 00 oe v •• ee ee oo er�J� °° •' v v °° obstruction to merchants' �`–� e• ee oe � .... °• O •• •, e e storefronts e ee ..i •, e oe •• O O � •• v "ti v o0 v • v u v o e v u v past ee eo oe v oe 00 e e bottleneck v vo `J " 0 block e e 00 farmers °° do not vo `0 v v O v v v offload ATTACHMENT a L._ voaleneck would create loeiams that would, to say the least,create 700 block frustration. The logjams would greatly hamper vendors and farmers 26' between vendors efforts to pack up and leave the 10' 10, street before the street is open at wide wide 9:30. For safety the street would stall stall have to remain closed past 9:30. space space 12'drive through DA vendor support vehicles, whether trucks or cars,exceed the vendor's ten feet wide stall space, e.g., a sedan is about 15 feet long. Widths of vehicles vary from 6' to 8'+. When packing up after the market, a vendor can not park parallel to their stall space without partial blocking the adjacent vendor. Rather vendors come in at an angle. Twelve feet is enough for trucks leaving to get by trucks staging/packing up. Parking at an angle while packing up constricts the drive though space even further. This seems to work in the 700 block where the table to table distance is 26 Bottle neck part of 800 block(affects over 22 vendors) feet. 10 ' 10' This would not work in the Wineman wide wide Hotel bottleneck where the distance stall stall between vendor to farmer tables is space space limited to 20 feet. 6' drive through In the bottleneck section any support vehicle parking at an angle would create a clog thereby blocking access to stall spaces for those needing to pack up,and would trap others wishing to leave. See next page for bottleneck effects Six feet is not enough for trucks to access their stalls or to leave Bottleneck Chorro Street C ATTACHMENT c�— Effect • DA fin vendors stalls In the bottleneck section any support vehicle parking at an angle would create a clog. S This would block access to stall spaces for those needing to pack up, and would trap others wishing to leave. d bottleneck support vehicles packing up e W support vehicles waiting to access their stalls a J' 1 •, T 7 r 4T tam sidewalk enlargement o a °'' at crosswalk in 800 s s' block s y Y'' a ,j To maintain fire lane --trucks in this area must k ?¢ ' park parallel r, ay '.� farmer truck in stall space unable to get out 71 ••,�iw r .�..•,.fit i •-ef�.9 a i! •P Y �-- May 3;2010 - - Katie Lichtig J. Christine Dietrick San Luis Obispo City Manager San Luis Obispo City Attorney Thank you for meeting with me and giving me the opportunity to explain the FMA's situation. The table below contains the FMA space history you requested. There was.also the question about the FMA paying City taxes. FMA is a mutual benefit not for profit corporation, and has not in the past been required to pay City taxes. Higuera Street FMA spaces 700 800 900 total Year block block block 2005 5 32 9 46 2008 34 32 9 44 January 14,2010 3 27* 9 39 2010 negotiated 0*** 28** 9 37 The FMA very much appreciates your efforts to help obtain a resolution between FMA and DA. After three and one half months,repeated DA delays, and increased financial burden on the FMA(revenue loss and attorney fees), the FMA rightfully expects the return of full operation of the farmers'part of TNP to begin the second Thursday of May. The FMA will not accept any further delays from the DA. The FMA fully realizes that despite your efforts, the DA may choose not to return operation of the farmers' part of TNP to the FMA by the second Thursday of May. If the DA makes this choice, the FMA requests that the City take other actions that would return operation of the farmers' part of the TNP to the FMA. More than one City Council member has mentioned the City contracting directly with the FMA. The FMA realizes that should the City initiate significant other actions, such as mentioned above, that the process/procedure might require FMA to wait longer than the second week in May. However, each Thursday lost, especially during the busy summer season,results in a significant financial loss to the FMA, and generates increased FMA grower frustration. Thank you again for your willingness to assist us in this matter. Please contact me should you have further questions or require additional information. Please keep me informed regarding any progress with the DA and the City's intentions should negotiations with the DA fail to result in a prompt resolution. Sincerely, Peter Jankay Administrator San Luis Obispo County Farmers' Market Association *The expanded sidewalk area in front of the Wineman Hotel requires support vehicles to park parallel and this eliminates five grower spaces in the 800 block. ** Negotiations added one space on the 800 block. ***Negotiations eliminated the three spaces on the 700 block. " In 2008 the DA took back two FMA spaces in the 700 block. 2 � 7 ATTACHMENT jAg aiI APR 2 3 2009 i_o crrY A�-����Fv Fars Ms�x�-ir -- Counc}' April 23, 2010 San Luis Obispo City Council Mayor Dave Romero,Vice Mayor Andrew Carter, and Council members-John Ashbaugh, Jan Howell Marx, and Allen Settle Honorable Mayor,Vice Mayor and Council Members: The Board of Directors of the San Luis Obispo County Farmers' Market Association (FMA) has concluded that negotiations between FMA and San Luis Obispo Downtown Association (DA) have collapsed. Consequently, the FMA seeks City Council action that would return operation of the farmers' market part of the Thursday Night Promotions (TNP) to the FMA effective Thursday, May 6, 2010. Attached is a Timeline of Events. A summary is presented below. The FMA has acted in good faith, as follows: • initiated contact and met with DA Board President before the February 2 City Council meeting • hosted dinner at McLintocks for entire DA board • met with DA representatives to negotiate the specifics of FMA's return to TNP • initiated and encouraged DA to enter mediation with Scott Radovich pro bono • participated in mediation on March 11 where both parties signed a memorandum of understanding and agreed to negotiate terms of an agreement as soon as possible • promptly returned proposed revisions to DA's "Agreement'proposal • waited three weeks for"new"DA board to meet • in effort to conclude and finalize negotiations FMA repeatedly requested DA's specific responses to FMA revision of DA Agreement • FMA representative has participated in TNP Committee meetings in February, March,and April • resisted repeated media requests for negotiation details The FMA has exhausted all reasonable efforts to come to a resolution with the DA. The DA has repeatedly stalled/delayed progress toward a resolution,as follows: • shortly after initial negotiations, February 16,the DA requested attorney intervention and suspended communications for three weeks • following mediation,the DA ignored FMA request for substantive response to FMA's revisions to DA's Agreement proposal, and stopped negotiations for a three weeks, that is, until after the "new" board met on April 13 • after the DA April 13 board meeting, the DA attorney continued to ignore FMA's request for substantive response to FMA revisions to DA's Agreement proposal Patz I of 41 a� ATTACHMENT • On April 15 the DA attorney proposed a second mediation with an entirely new mediator and advised that the DA refused to attend a second mediation session with Scott Radovich,who had available dates in April. The DA chose a different mediator with mediation dates at the end of May only. This would effectively delay negotiations for an additional five weeks. And, again the DA attorney ignored FMA requests that the parties continue direct negotiations. —over 3 months have elapsed since the DA announced their takeover— almost three months have elapsed since the City Council meeting where the DA and FMA were directed to negotiate the details of the FAA's return to TNP-- The San Luis Obispo citizenry does not view the farmers' part of the TNP as a business arrangement and a promotion for the City. Rather the SLO citizenry views farmers' markets as part of the community. The fanners' part of the TNP goes way beyond a TNP event. Fanners' markets serve the community. As was evident in the weeks following the DA announced takeover, the citizenry is passionate about this. Since the DA takeover,the FMA has lost over 5% of its annual gross income, and has incurred significant expenses (attorney fees). The FMA can not continue to bear the significant negative financial impacts caused by DA delays. The FMA respectfully seeks City Council action that would return operation of the farmers' part of the TNP to the FMA on May 6, 2010. i P ' ip`i angston President of the Board San Luis Obispo County Fanners' Market Association o Peter Japl6y Administrator San Luis Obispo County Fanners' Market Association cc: Katie Lichtig, City Manager and J. Christine Dietrick, City Attorney San Luis Obispo Countv Farmers' Market Association P.O. Box 160�8. San Luis Obispo.California 93406 Pan f- w�ci+�.slocounh�farmers.or� .tee o. � ATTACHMENT 3 Timeline of Events January 14 Without any prior notice the DA informs farmers that effective January 28 the DA is taking over operation of the farmers' part of the TNP farmers' market. Notices were distributed during closing, after 9:00 pm. January 19 FMA addresses the SLO City council about the DA takeover January 27 FMA representatives initiate contact and meet with Natalie Tartaglia, President, DA board. January 28 DA assumes operation of the farmers' part of the TNP farmers' market February 2 FMA and DA give presentations to the SLO City Council. City Council directs DA to negotiate with FMA to return operation to FMA February 6 DA present FMA representatives with five points February 8 FMA hosts dinner at McLintocks Shell Beach for DA board to meet FMA board. Only 3 of 13 DA board members come. DA present five points to FMA board February 9 As a gesture of goodwill, FMA board members attend the DA Board meeting and use the Public Comment portion to introduce themselves to DA board members February 16 DA and FMA representatives begin negotiations on terms of a contract. February 18 DA informs FMA that DA want to involve the DA, FMA and City attorneys. DA suspends communications. late February After FMA prodding, DA agrees to mediation on March 11 with Scott Radovich. March 11 At mediation FMA and DA signed a memorandum of understandings and agreed to negotiate the terms of a written Agreement as soon as possible. --five weeks have elapsed since the DA announce their takeover— March 15 DA TNP Events Coordinator sends proposed Agreement terms to FMA's Administrator March 19 DA attorney emails DA's proposed Agreement to FMA attorney March 24 FMA attorney emails FMA's proposed revisions of DA Agreement proposal to DA attorney March 25 DA attorney informs FMA attorney that FMA revisions are"...more extensive than anticipated. The DA attorney further states "The Board 1 -36 Page 3 of=.' ATTACHMENT 3 does not meet again until April 13, so I will not be able to respond to the FMA's requested revisions until then." March 29 FMA attorney emails DA attorney that"Waiting until after the DA's Board meeting on April 13 to provide the DA's response to the FMA draft would unreasonably delay the process." April 15 DA attorney emails FMA attorney"The Downtown's new board voted to return to mediation, but with a new mediator." The DA proposes the last week of May for this mediation. This email fails to respond to FMA's request for DA's substantive response to FMA's revision to DA's Agreement proposal. April 15 FMA attorney emails DA attorney "Please provide me, by fax or email not later than 5 p.m. tomorrow, with the DA's substantive response to the FMA's revised draft of the Agreement. Without that, the FMA is not in a position to respond to the DA's demand for an entirely new mediator. Perhaps we can still find a way for the two Associations to directly negotiate an acceptable resolution, but to do so requires the DA's response." April 15 DA attorney emails FMA attorney that he has forwarded her email (paragraph above)to DA. He does not mention FMA's request for DA's substantive response to FMA's revision of the Agreement proposal. April 16 No response from the DA to FMA's revisions to Agreement proposal April 19 No response from the DA to FMA's revisions to Agreement proposal April 20 No response from the DA to FMA's revisions to Agreement proposal April 21 No response from the DA to FMA's revisions to Agreement proposal April 22 No response from the DA to FMA's revisions to Agreement proposal --over 3 months have elapsed since the DA announced their takeover-- Additional notes: • As a good faith gesture an FMA representative participated in the February 12, March 10, and April 14, 2010 TNP Committee meetings. • Copies of the email communications referenced above will be made available if requested. San Luis Obispo County Farmers' tilarket Association P.O. Bos 16053. San Luis Obispo. California 931=136 / 2� i;wusl000univfarmers.or« Page 4 ofd .J ATTACHMENT AGREEMENT THIS AGREEMENT is entered into as of the 1st day of July, 2009;between the SAN LUIS OBISPO DOWNTOWN ASSOCIATION, a 501(c)(6)non-profit corporation organized under the laws of the State of California, with a place of business at 1108 Garden Street, San Luis Obispo, California 93401 ("SLODA"), and the CITY OF SAN LUIS OBISPO, a municipal corporation ("City"). RECITALS: A. The City and SLODA have worked together for the benefit of business and tourism in the downtown area of San Luis Obispo since the inception of the Downtown Business Improvement Area in 1975 and desire to continue their relationship for the betterment of tourism and business; and B. On October 6, 1975, the City Council adopted, and subsequently amended on various occasions, Ordinance 649 (1975 Series) (collectively, "the Ordinance") creating the Downtown Parking and Business Improvement Area ("DPBIA") in the downtown area of San Luis Obispo, and levying the authorized assessment on all businesses within the area. C. Having determined that promotional activities to benefit business and tourism activities in the downtown area of San Luis Obispo are an appropriate use of DPBIA assessment proceeds, since such activities are expected to maintain and increase revenues derived by the City from the downtown area and to preserve and enhance the unique character of the downtown for the special benefit of downtown area businesses, and further, having determined that SLODA is able to conduct such promotional activities, the City Council desires to contract with SLODA to conduct promotional activities in the downtown area of San Luis Obispo. D. The City is authorized enter into a contract to provide services to the members of the DPBIA and to administer the assessment collected for that purpose; the SLODA, a 501(c)(6) organization, wishes to enter into this contract with the City to provide agreed upon services to the DPBIA members. NOW THEREFORE,THE PARTIES AGREE as follows: 1. Scope of Services. SLODA will conduct promotional activities to benefit business and tourism activities in the downtown area of the City, more specifically set forth in this Agreement as the Scope of Services, attached hereto as Exhibit A and incorporated as if fully set forth herein, as limited by State law and the Ordinance, and subject to any modifications approved in writing by the City Manager. The Scope of Services may be amended by mutual consenrof the parties after bi-annual approval of this Agreement by the City Council. The City Manager is hereby authorized 3a ATTACHMENT to approve periodic amendments to the Scope of Services without further consent by Council to the extent that any such amendments do not result in the elimination of required Special Events, as set forth in Exhibit A. 2. Financial Reporting. SLODA will prepare and file with City, consistent with City policy, quarterly financial reports within 60 days after the end of the quarter showing qualifying expenditures made by SLODA and shall, upon request by City, produce supporting invoices,receipts, vouchers and statements showing how the DPBIA revenues have been expended consistent with this Agreement. Such financial reports shall include a line-item schedule which matches expenditures with specific, budgeted amounts and activities. The reports will be filed with the City Finance Director consistent with the City's financial reporting policies and practices, and as reasonably requested by the Finance Director. In addition to interim quarterly reports, the SLODA shall contract with an independent certified public accountant to prepare an annual audit of the SLODA financial operations related to qualifying revenues and expenses. The audit shall be conducted in accordance with auditing standards generally accepted in the United States. The goal of the audit shall be to provide an opinion that the SLODA financial statements present fairly, in all material respects, the financial position and changes in financial condition of the qualifying financial operations of the SLODA,in conformity with accounting principles generally accepted in the United States. The SLODA fiscal year shall be July 1 to June 30; and the audit shall be completed and submitted to the City's Finance Director within 180 days after fiscal year end. 3. Quarterly Activity Reports. At the time the interim quarterly financial reports are filed, SLODA will also file with the City Manager a report of the activities of SLODA and its subcontractors and the respective accomplishments of each during the period specified in the financial report. 4. Carryover Funds. SLODA may accrue a carry-over account of funds paid by the City to SLODA,but not expended by SLODA, provided that SLODA files with the City a declaration, which specifically sets forth the planned use of such funds. The amount of carryover funds will be added to the funds allocated to the SLODA in accordance with this Agreement for succeeding fiscal years, provided that these funds must be specifically allocated to program activities of any budget proposal submitted for such funding agreement. 5. Term. The term of this Agreement will commence July 1, 2009 ending on June 30, 2011 to match the two year budget cycle of the City. The term may be extended upon approval of the Agreement, including review of the Scope of Services, by the City Council. The City and SLODA may terminate this Agreement and any rights, duties and liabilities accruing in this Agreement at any time by giving written notice of election to terminate to the other party at least thirty (30) days prior to the end of the fiscal year. 1-33 ATTACHMENT 4 6. Funding Restrictions. The parties acknowledge that activities wttntn the scope of Services shall be funded by DPBIA funds and that all monies allocated by the City shall be subject to the restrictions imposed on DPBIA monies by the Ordinance and State law. 7. Limited Use of DPBIA Funds. SLODA will use none of the funds it receives from this Agreement for any purpose not enumerated in the Ordinance, including but not limited to, any expense (including administration and overhead)in support of a SLODA Political Action Committee or any other political entity or activity. The City recognizes that the SLODA may engage in such activities on behalf of its members, independent of its contract with the City and does not attempt through this Agreement to limit those activities, so long as such activities do not utilize DPBIA funds. 8. Accounting for DPBIA Assessments. DPBIA assessment money may be used to finance fund-raising activities intended to generate additional revenue for use by the SLODA. However, the sum of all assessment money used for this purpose shall be accounted for and proceeds from the fund-raiser equal to that sum shall be used for purposes stated in the Ordinance and conforming to the purposes of the.assessment as defined by State law. Further, such use of DPBIA funds shall be specifically described in the periodic reports described in paragraph 2 of this Agreement. 9. City Support for SLODA Activities. The City will continue to provide staff support and services in accordance with the SLODA Scope of Services attached hereto as Exhibit A, at the mutually agreed cost to the SLODA. However, it is agreed that SLODA will reimburse City for all costs incurred by City in providing services during the term of this Agreement relating to other SLODA events or promotional services. These costs will be determined and certified in accordance with City policies applicable to other non-profit organizations and City will provide SLODA with invoices for such services, which will be due and payable by SLODA consistent with standard City policies and practices. 10. Monthly Remittance of DPBIA Funds to the SLODA. The City will cause to be paid to SLODA the total amount of DPBIA funds collected by the City during each month within thirty(30) days of the end of the month. 11. City Staff Rights to Attend SLODA Board Meetings. SLODA shall notify the City Manager of the meeting dates of each meeting of the Board of Directors of SLODA, and the City Manager or his/her appointed representative shall have the right to attend all meetings of the Board of Directors. 12. Independence of SLODA. Neither the City nor any of its officers or employees will have any control over the conduct of SLODA or any of its employees, except as provided above, and SLODA expressly warrants not in any manner or at any time to represent that its officers, agents, servants or employees are in any manner the officers, agents, servants or employees of the City, it being distinctly understood that SLODA is -3Y ATTACHMENH and at all times will remain as to the City, an independent contractor, and the obligations of SLODA to the City is solely as prescribed by this Agreement. 13. Assignment. This Agreement contemplates that SLODA will render special services which it is uniquely able to provide, and it is recognized by the parties that an inducement to City for entering into this Agreement was, and is,the ability of SLODA to render these special services. Neither this Agreement nor any interest in this Agreement may be assigned by SLODA,except that SLODA may, on written consent of the City Manager or designee obtained in advance, assign any moneys due, or to become due, to SLODA for purposes consistent with this Agreement. SLODA agrees not to subcontract any portion of the performance contemplated and provided for in this Agreement, except that SLODA may enter into subcontracts for the sole purpose of carrying out promotional activities within the scope of the Ordinance with the consent of City. Nothing contained in this Agreement is intended to or will be construed as preventing SLODA from employing or hiring as many employees as it may deem necessary for the proper and efficient execution of this Agreement. 14. Insurance. SLODA shall obtain and maintain insurance as set forth in Exhibit B hereto, the requirements of which are incorporated herein. Each insurance policy shall be endorsed to state that coverage shall not be suspended, voided or canceled by either party except after thirty (30) days' prior written notice to City, and shall be primary and not contributing to any other insurance or self-insurance maintained by City. SLODA shall deliver to City certificates of insurance and original endorsements for approval as to sufficiency and form prior to the start of performance hereunder. The certificate and endorsements.for each insurance policy shall contain the original signature of a person authorized by that insurer to bind coverage on its behalf. "Claims made" policies of insurance are not acceptable unless the City Risk Manager determines that "occurrence" policies are not available in the market for the risk being insured. If a "claims made" policy is accepted, it must provide for an extended reporting period of not less than one hundred eighty (180) days. Such insurance as required herein shall not be deemed to limit SLODA's liability relating to performance under this Agreement. City reserves the right to require complete certified copies of all said,policies at anytime. Any modification or waiver of the insurance requirements herein shall only be made with the approval of the City Risk Manager. The procuring of insurance shall not be construed as a limitation on liability or as full performance of the indemnification provisions of this Agreement. To the extent that SLODA subcontracts certain activities pursuant to paragraph 13 of this,Agreement, SLODA may comply with the requirements of this paragraph 14 by proviing certificates of insurance naming SLODA and the City of San Luis Obispo as separate additional insureds under the subcontractor's insurance, providing that the subcontractor's insurance meets or exceeds the insurance requirements of this paragraph 14, all subject to the approval of the City Risk Manager. ATTACHMENT 15. Hold Harmless and Indemnification. SLODA shall protect,defend; indemnify and hold City, its officials, employees, and agents (collectively in this Section referred to as "City") harmless from and against any and all claims, demands,causes of action, losses, damages, and liabilities, whether or not reduced to judgment, which may be asserted against City arising from or attributable to or caused directly or indirectly by SLODA, SLODA's employees or agents in the performance of work under this Agreement, or any alleged negligent or intentional act, omission or misrepresentation by SLODA, SLODA's employees or agents, which act, omission or misrepresentation is connected in any way with performance of work under this Agreement. If it is necessary for purposes of resisting, adjusting, compromising, settling, or defending any claim, demand, cause of action, loss, damage, or liability, or of enforcing this provision, for City to incur or to pay any expense or cost, including attorney's fees or court costs, SLODA agrees to and shall reimburse City within a reasonable time. SLODA shall give City notice of any claim, demand, cause of action, loss, damage or liability within ten (10) calendar days. 16. Notice. Any notices to be given under this Agreement, or otherwise, maybe given by enclosing the same in a sealed envelope, addressed to the party intended to receive the same, at its address and by depositing the same in the U. S. Postal Service as regular mail, postage prepaid. When so given,notice will be effective from the time of mailing of the notice. For these purposes, unless otherwise provided in writing, the address of the City and the proper person to receive any notices on its behalf is the City Manager, 990 Palm Street, San Luis Obispo and the address of the SLODA is 1108 Garden Street, Suite 210, San Luis Obispo, California 93401. IN WITNESS WHEREOF, the parties hereto have executed this Agreement this day of 2009. SAN LUIS OBISPO DOWNTOWN ASSOCIATION, A 501(c)(6) Corporation. By: CITY OF SAN LUIS OBISPO By: David F. Romero,Mayor APPROVED AS TO FORM: By: an P. Lowell, City Attorney 13L ATTACHMENT EXHIBIT A SCOPE OF SERVICES SPECIAL EVENTS: The events and/or activities set forth below are Special Events the continuation of which the City considers integral to the fulfillment of SLODA's obligations under the Agreement. As such, the City agrees to continue to provide, at the mutually agreed cost to the SLODA, the enumerated municipal services that have traditionally been provided to the SLODA in conjunction with the events/activities as set forth below and the SLODA shall continue to provide the following Special Events to the Downtown: A. Holiday Activities B. Concerts in the Plaza C. Thursday Night Promotions City services in support of the above events have traditionally included the following, which will continue uninterrupted: 1. Public safety support at levels determined appropriate by the City, including holiday parade escort. 2. Placement and removal of street barricades and coordination of street closures for holiday activities and Thursday Night Promotions. 3. Placement and removal of City-owned portable restrooms for Thursday Night Promotions. 4. Banner placement and advertising at 50% of standard City fees. (Note: SLODA shall retain its priority position with regard to the placement of street banners that promote activities that benefit tourism and business in the district, in addition to the Special Events above, within the scope of the Agreement, but shall be charged fees consistent with City policy for the placement of such banners) 5. Special Events Permit processing at 50% of standard City fees 6. Street clean-up following Special Events 7. Holiday tree placement and.removal 8. Free rental of Mission Plaza for placement of Santa's House and carousel and for Concerts in the Plaza. ONGOING SERVICES: In addition to the Special Events set forth above, SLODA shall provide, as needed, the following Ongoing Services to the Downtown. The costs of any City services required or requested in support of these Ongoing Services shall be allocated to the SLODA consistent with City policies applicable to other not for profit entities and pursuant to the terms of the Agreement. ATTACHMENT `f 1. Parking/Transportation a. Distribute employee and customer parking brochures to targeted groups. b. Work closely with City staff to analyze and make recommendations to the City Council on ways to address employee parking issues. c. Work closely with City staff on the development of downtown construction public information programs. 2. Programming in Plaza a. Explore other event ideas such as movies, art fairs, poetry, etc. 3. Downtown Maintenance a. Continue to cooperate with Public Works Department staff to determine sidewalk scrubbing schedule. b. Disseminate cleanliness and safety information to members through publications and presentations. c. Work with City staff to get trash and recycling receptacles cleaned. d. Continue Downtown Forester program in assisting with tree maintenance. 4. Economic Development a. Work closely with City staff when developing marketing strategies for retail services and continue to implement Strategic Plan goals to maintain.downtown retail health. b. Continue to facilitate business recruitment and retention in the Downtown. c. Continue to coordinate with City and Chamber of Commerce to get information to visitors on Downtown retail/shopping opportunities. d. Strengthen collaboration efforts with the Chamber.of Commerce and other business and visitor groups to increase effectiveness of local and regional marketing. e. Get word out to downtown retailers and restaurants when conferences/events are in town and encourage them to do direct marketing/outreach. 5. Organizational Capacity Keep the City apprised of the status of SLODA's long term strategy for the fiscal sustainability of the SLODA, including strategies to: a. Maintain economic vitality and independence of the organization b. Identify options for development of other funding sources to be considered, pursued, and/or secured to supplement the organization's activities; /-3� - .ATTACHMENT c. Evaluate internal organization, and committee structure, and allocation of resources to identify changes needed to most effectively implement SLODA's mission and goals. ADDITIONAL PROVISIONS: Higuera Street The SLODA partially funded the installation of electrical conduit in Higuera Street to accommodate the potential for future electrical connections for use by Thursday Night Promotions vendors. A further capital project will be required to facilitate such connections. The City and SLODA have agreed to,work toward accomplishing the connections over the term of the Agreement. However, SLODA recognizes that the completion of such a project will require additional funding and the parties agree that the cost allocation relating to the provision of such connections and post-installation maintenance issues, such as electrical service costs, are subject to further negotiation. 32 ATTACHMENT ' q Exhibit B INSURANCE REOUIREMENTS: Consultant Services 1. Insurance. Contractor shall procure and maintain for the duration of the contract' insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work hereunder by Contractor, its agents, representatives,employees or sub-contractors. a. Minimum scope of insurance. Coverage shall be at least as broad as: • Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001). • Insurance Services Office form number CA 0001 (Ed. 1/87) covering Automobile Liability, code 1 (any auto). • Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. • Errors and Omissions Liability insurance as appropriate to Contractor's profession. b. Minimum limits of insurance. Contractor shall maintain limits no less than: • General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General.Liability or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. • Automobile Liability: $1,000,000 per accident for bodily injury and property damage. • Employer's Liability: $1,000,000 per accident for bodily injury or disease. • Errors and Omissions Liability: $1,000,000 per occurrence. C. 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 the City, its officers, officials,employees and volunteers; or Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. d. Other insurance provisions. The general liability and automobile liability policies are to contain, or be endorsed to contain,the following provisions: • The City, its officers, officials, employees, agents and volunteers are to be covered as insureds as respects: liability arising out of activities performed by or on behalf of Contractor; products and completed operations of Contractor; premises owned, occupied or used by Contractor; or automobiles owned, leased, hired or borrowed by Contractor. The coverage shall contain no special limitations on the ��7v ATTACHMENT �f scope of protection afforded to the City, its orricers, official, employees, agents or volunteers. • For any claims related to this project, Contractor's insurance coverage shall be primary insurance as respects.the City, its officers, officials, employees, agents and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, agents or I volunteers shall be excess of Contractor's insurance and shall not contribute with it. • Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City, its officers, officials,employees,agents or volunteers. • Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. • Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City. e. Acceptability of insurers. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than ANII. Verification of coverage. Contractor shall furnish the City with a certificate of insurance showing maintenance of the required insurance coverage. Original endorsements effecting general liability and automobile liability coverage required by this clause must also be provided. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements are to be received and approved by the City before work commences. 1 -ql