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HomeMy WebLinkAbout25G - COMMUNITY GARDEN JEROME PARK (2)REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: SEPTEMBER 2, 2008 TITLE: AGREEMENT FOR THE OPERATION OF THE COMMUNITY GARDEN AT JEROME PARK ~~ ` CIT ANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ^ As Recommended ^ As Amended ^ Ordinance on 151 Reading ^ Ordinance on 2"d Reading ^ Implementing Resolution ^ Set Public Hearing For_ CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute the attached agreement with The Grain Project to manage and operate the Community Garden at Jerome Park for a two-year term with two, 5-year renewal options, subject to non-substantive changes approved by the City Manager and City Attorney. DISCUSSION In March 2008, the Parks, Recreation and Community Services Agency and 400 volunteers constructed a playground, community garden and mural at Jerome Park through a grant provided by KaBOOM! Playmakers. The Grain Project was instrumental in overseeing the planning and coordination of volunteers to design and implement the community garden portion of this effort. The Grain Project would like to continue in its role to oversee and maintain the community garden to ensure the project's long-term success. The Grain Project is a 501(c)3 non-profit, public benefit corporation organized to promote unified, healthy, sustainable communities through farmers' markets, community gardens, and public art. Its mission is to provide a means for communities to learn more about gardening and healthy foods. The agreement is for a two-year term with two, 5-year renewal options. The Grain Project will manage and maintain the community garden through community volunteers. The Grain Project will provide the necessary liability insurance and will require volunteers working in the community garden to sign waiver forms similar to the City's volunteer program. The community garden program will educate residents on the basic skills of gardening to provide nutritional and healthy food for their families. 25G-1 Agreement for the Operation of the Community Garden at Jerome Park September 2, 2008 Page 2 The City has agreed to provide the land and office/storage space for the program at no cost to The Grain Project. All expenses to maintain and operate the program will be provided by The Grain Project through donations and volunteer labor. FISCAL IMPACT There is no fiscal impact associated with the proposed action. Gera do Mouet Exec tive Director Parks, Recreation and Community Services Agency 25G-2 LICENSE AGREEMENT FOR OPERATION OF COMMUNITY GARDEN AT JEROME PARK THIS LICENSE AGREEMENT (hereinafter "License") is made and entered into on , 2008, between the City of Santa Ana, a charter city and municipal corporation duly organized under the Constitution and laws of the State of California (hereinafter "City" or "Licensor"), and the Grain Project, a California Non- Profit Public Benefit Corporation (hereinafter "Licensee"). RECITALS A. Licensor owns the real property known as Jerome Park in the City of Santa Ana, state of California. B. Licensee is a 501(c)3 non-profit corporation that is organized to promote unified, healthy, sustainable communities through farmers' markets, community gardens, and public art. Licensee possesses unique expertise in developing and maintaining a community garden project. C. Licensor wishes to provide access to a portion of Jerome Park to Licensee for the establishment of a community garden consistent with terms specified herein. D. The area of Jerome Park that Licensor will provide access to is more specifically described in Exhibit "A", Description -Licensed Area, attached hereto (hereinafter "Property" or "License Area"). E. Licensor and Licensee desire to enter into this License whereby Licensee shall be permitted, in accordance with the terms and conditions herein, to operate a community garden to be located at Jerome Park. 1. GRANT OF LICENSE A. Purpose of License. Licensor grants to Licensee a personal, non-exclusive, revocable license ("License") to use the License Area as a community garden. The License Area is more particularly described and shown on Exhibit "A" attached hereto. Licensee agrees that the purpose of the License herein is to allow it to involve and educate the community on gardening. Licensee may not use the License Area for any other purpose or business, other than as a community garden, without first obtaining Licensor's prior written consent. No property rights to the land and/or crops or profits from the land and/or crops are intended, or granted, in favor of users of the community garden. B. Proof of Non-Profit Status. Licensee shall provide to Licensor, prior to exercising any rights herein conferred to it, evidence of its status as a valid California nonprofit business entity. NON-EXCLUSIVE LICENSE AGREEMENT 2~G-39 2. TERM The Term of this License shall be from the date that this license is approved by all parties through June 30, 2010. This License is subject to renewal for two (2) five- yearterms upon six (6) months written notice to Licensor. Such extension shall be solely at the Licensor's discretion. 3. CONDITIONS OF LICENSE A. Hours of Operation. The hours of operation for the community garden shall be similar to those hours of operation posted for the use of the rest of the Park. B. Perimeter Fence. Licensee shall secure the temporary and permanent fence at all times to protect the garden and to eliminate any potential liability issues. Licensor agrees that it will install a permanent perimeter fence. C. Signage. Any signage proposed to be placed at the community park shall first be approved by the Executive Director of Parks, Recreation and Community Services or his designee. D. Maintenance. Licensee is fully responsible to maintain the community garden inside the perimeter of the existing temporary fence. Licensee agrees that it has an absolute duty to maintain the License Area in a neat, clean, sanitary and safe condition, to the satisfaction of Licensor, at the sole cost and expense of Licensee, for which costs and expenses Licensee shall be solely obligated. Licensee shall keep the community garden clean of debris, weeds, tools, and other materials when the area is not being programmed or used. Licensee shall be responsible for all trash, garbage, paper, boxes, cartons, cans, containers, litter, etc., generated by the community garden inside and outside of the immediate community garden area. The City will be responsible for maintaining the park landscaping area and parking lot outside the License Area. E. Pesticide and Herbicide Use. Licensee agrees that it will operate an organic community garden and that it will not allow the use of pesticides or herbicides in the community garden. The City agrees that it will eliminate the use of pesticides and herbicides around the community garden. F. No Vehicles in Garden. No vehicles shall be driven or parked in the community garden unless approved in advance by the Executive Director of Parks, Recreation and Community Services or his designee. All vehicles shall be parked in the appropriate parking spaces. G. Storage Bin. Licensor will provide a suitable storage bin for securing tools and materials for the garden. Licensee shall maintain and secure the City-provided NON-EXCLUSIVE LICENSE AGREEMENT 2 ~G -4 storage bin at all times. Maintenance shall include, but not be limited to, graffiti removal, periodic painting, and facade improvements and repairs. No flammable materials shall be stored in the storage bins. H. Office Space. Licensor will provide a mobile trailer to be used as office space onsite by Licensee. Use of the mobile trailer will be allowed so long as, in the discretion of the Executive Director of Parks Recreation and Community Services, the community garden is used to its full potential. Licensor will be responsible for payment of water and electricity while the Licensee will be responsible for phone and other telecommunication services. I. Volunteers. Licensee will require that all volunteers sign a waiver form when working in the garden or participating in other volunteer projects. J. Sale of Food. If appropriate, Licensee may sell their produce at the site but only after first obtaining the approval of the Executive Director of Parks, Recreation and Community Services or his designee. Any sale of food will be limited to produce grown on site. Licensee agrees that it will not permit the planting of any type of plants that have psychoactive effects such as marijuana. K. Future Programs. Future programs involving children, seniors, or any School District shall first be presented to the Executive Director of Parks, Recreation and Community Services, or his designee, for approval. L. Marketing. Licensor will assist Licensee in designing a packet for marketing the community garden and to request donations for materials, supplies and future improvements to the garden. M. Vandalism and Property Damage. Licensor shall not be held responsible for loss of, or damage to, any personal property left in, on, or about the License Area, or for any improvements made by Licensee on, about, or to the License Area. In the event of vandalism to the community garden, Licensee agrees to take corrective action as soon as possible. N. No Property Rights. Neither Licensee nor any of the users of the community garden are to be afforded property rights by virtue of their use, planting or cultivation of the community garden. O. Continuing Right of Licensor. This License is made subject and subordinate to the prior and continuing right of Licensor to enter the License Area, and/or to use the License Area for any and all purposes. P. Dispute Resolution. In the event of any dispute concerning or relating to any aspect of the community garden which cannot be resolved by the licensee, the final arbiter shall be the Executive Director of Parks Recreation and Community Services. NON-EXCLUSIVE LICENSE AGREEMENT 2~G-5 Q. No Warranties. Licensor makes no warranties or representations concerning the Licensed Area or any means of ingress or egress thereto or therefrom. Licensor agrees to provide water and electric service to the Licensed Area. R. Termination. Licensor may, in it sole discretion, upon notice to Licensee, terminate this License in the event that Licensee fails to perform, keep or comply with any covenant, condition, restriction or limitation required by this License to be performed, kept, or complied with by Licensee. At the end or expiration of the term, the Licensee shall deliver up the demised Premises in good order and condition. No improvements or alterations shall be made in or to the hereby demised Premises without the consent of the City in writing. 4. NOTICES Any notice to be given by either Licensor or Licensees shall be deemed to be properly served if and when deposited with the United States Postal Service, postage prepaid, to the addresses below: TO LICENSOR: And City of Santa Ana 20 Civic Center Plaza P.O. Box 1988 Santa Ana, CA 92702 Attn: Clerk of the Council City of Santa Ana 20 Civic Center Plaza P.O. Box 1988 Santa Ana, CA 92702 Attn: City Attorney Executive Director of the Recreation & Comm. Services Agency City of Santa Ana 888 W. Santa Ana Blvd., Ste. 200 Santa Ana, CA 92702 Telefacsimile (714) 647-6549 Attn: Ron Ono TO LICENSEE: The Grain Project Attention: Nick Spain P.O. Box 572 Santa Ana, CA 92702 Telephone (714) 953-5513 NON-EXCLUSIVE LICENSE AGREEMENT Page 4 of 9 25G-6 INSURANCE A. Licensee, and every contractor Licensee hires, shall each maintain commercial general liability insurance with a combined single limit of not less than $1,000,000 per occurrence covering the License Area. Such insurance shall: (1) name the City of Santa Ana, its officers, agents, employees, and volunteers as additional insureds; (2) be primary with respect to insurance or self-insurance programs maintained by the Licensor, and (3) contain standard separation of insureds provisions. B. Licensee shall, prior to and as a condition precedent of exercising any rights under this License, (i) furnish properly executed certificates of insurance to the Licensor, which certificates shall clearly evidence all coverages required in Section 7(a) of this Agreement, and agree that such insurance shall not be materially changed or terminated except upon 30 days prior written notice to the Licensor, (ii) attach a completed and signed copy of the Licensor's "Additional Insured Endorsement" form, a copy of which is attached hereto as Exhibit "B", to the certificates of insurance noted above; (iii) maintain such insurance from the commencement date of this License until the Termination date of same; and (iv) replace such certificates of insurance for policies expiring prior to the termination date of this License. 6. INDEMNITY Licensee shall indemnify, defend and hold harmless Licensor, its officers, agents, employees and volunteers from and against any and all loss or damage, expenses, injuries, death to any person or damage to property, including property and employees, volunteers, officers or agents of Licensor or Licensee, and shall indemnify, defend and hold harmless Licensor, its officers, agents, employees and volunteers from all claims, demands, suits, actions or proceedings of any kind, and shall be responsible for any and all costs and expenses, including but not limited to reasonable attorneys' fees, settlements or judgment, arising out of the construction, reconstruction, maintenance, presence, operation, use, removal or state of repair, of the License Area. 7. GOVERNING LAW This License shall be governed by and construed in accordance with the laws of the State of California. NON-EXCLUSIVE LICENSE AGREEMENT Page 5 of 9 25G-7 8. ENTIRE AGREEMENT This License, together with all attachments and Exhibits hereto, constitutes the entire understanding and Agreement of the Parties. This License supersedes any and all other Agreements, whether oral or written, between the Parties hereto with respect to the terms set forth in this License and contains all the covenants, conditions, terms and Agreements between the Parties with respect to the subject matter herein described. Each Party to this License acknowledges that no representations, inducements, promises or agreements, whether oral or written, have been made by any party, or anyone acting on behalf of any party, with respect to the subject matter herein described, and that no Amendment hereto shall be effective unless set forth in writing, approved by the Licensor and Licensees. 9. INDEPENDENT CONTRACTOR It is understood and agreed by the Parties to this License that Licensee shall, in the performance of the terms and conditions contained herein, be acting in a wholly independent capacity and not as agents, employees, partners, or joint venturers of the Licensor. This License does not create a tenancy of any nature whatsoever between the Licensor and the Licensee. 10. ASSIGNMENT BY LICENSEE PROHIBITED In no event shall Licensees assign or transfer any of the rights conferred herein without the prior express written consent of the Licensor. 11. ATTORNEY FEES AND COSTS In the event that any action is commenced to enforce payment or performance under this License, or otherwise in connection with this License, the Parties agree that the prevailing party shall be reimbursed by the non-prevailing Party for all costs and attorneys' fees incurred by the prevailing Party in such action. 12. CONFLICT OF INTEREST No member, official or employee of the Licensor shall have any personal interest, direct or indirect, in this License, nor shall any member, official or employee of the Licensor participate in any decision relating to this License which affects his/her personal interests or the interests of any natural or legal person in which he/she directly or indirectly has a beneficial interest. The Parties hereto have executed this personal, non-exclusive, revocable License as of the date and year first written above. NON-EXCLUSIVE LICENSE AGREEMENT Page 6 of 9 25G-8 LICENSOR: THE CITY OF SANTA ANA By: David N. Ream, City Manager City of Santa Ana APPROVED AS TO FORM Joseph W. Fletcher City Attorney--~ fq~ ~, ~ ~ ~ By: ~~ ~ose~~andoval ~'~Yanaging Senior Assistant City Attorney LICENSEE: By: Nick Spain, President and Board Chair, The Grain Project By: Lara Montagne, Executive Director The Grain Project ATTEST: Patricia E. Healy Clerk Of The Council NON-EXCLUSIVE LICENSE AGREEMENT Page 7 of 9 25G-9 EXHIBIT A DESCRIPTION -LICENSE AREA NON-EXCLUSIVE LICENSE AGREEMENT Page 8 of 9 25G-10 ' ~n d N~aa r~~ ~ GY ~,1 , -~ ----~----- -- fI ~ ~~ 1__.I `• ~. ~. --. ~~ -- l .:~~~ ~~ - ~> ~, =~ ~ ; _ .~ - ~' = _ ~~, ~ ~ ~ ,~ Z ~ ~ ~ ~ ~ ~ ~ o~~ / ~-- ~ j ~ ,, ~ ~- 1 ' r V ~ - L ~ `-~, . v l ~ ~ ~ ~ ~ ~ ~ ~~ ~-- ~ ~ ' ~ j ~ ~- ~ ~ ~ J i ~ ~ 1 ,r ~ ~ ~ ~- ~ _ ~~. ~~: `~ ~: ,I s ~ ~" °o _~ ~ > ~ ~' , I, ;: ~~ ~ '"j ~ -- _____- i ~ ~- ~ ~~ ~I ~ . ~ ;' ,~. ~ T I ' n~ ~ Y ~ ~ N u :~ ~ ~ - a ~ ~ ~ ~~ W ~ - _- O v; --~{ 8 } ~ - - 7 N • _~ L ~~ '13 dJ-3I/~ ~LN9NI `-- - ~ ~~ r EXHIBIT B ADDITIONAL INSURED ENDORSEMENT Insurance Company This endorsement modifies such insurance as is afforded by the provisions of Policy # relating to the following: 1. The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92702;, their officers, employees, agents and volunteers are named as additional insureds ("additional insureds") with regard to liability and defense of suits arising from the operations and uses performed by or on behalf of the named insured. 2. With respect to claims arising out of the operations and uses performed by or on behalf of the named insured, such insurance as is afforded by this policy is primary and is not additional to or contributing with any other insurance carried by or for the benefit of the additional insureds. 3. This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the company's limits of liability. The inclusion of any person or organization as an insured shall not affect any right which such person or organization would have as a claimant if not so included. 4. With respect to the additional insureds, this insurance shall not be canceled, or materially reduced in coverage or limits except after thirty (30) days written notice has been given to the City of Santa Ana, 20 Civic Center Plaza (M- 36), Santa Ana, California 92702. (Completion of the following, including countersignature, is required to make this endorsement effective.) Effective ,this endorsement form as a part of Policy # Issued to Named Insured Countersigned by Authorized Representative NON-EXCLUSIVE LICENSE AGREEMENT Page 9 of 9 25G-12