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HomeMy WebLinkAboutHBCG - Huntington Beach Community Garden - 2010-06-21lc�.—(eA..._." Council/Agency Meeting Held: D Deferred/Continued to: "iJApp oved ❑ Conditionally Approved ❑ Denied %, City' (erk' ignatur r/ ' Council Meeting Date: June 21, 2010 Department ID Number: CS 10-010 CITY OF HUNTINGTON BEACH REQUEST FOR CITY COUNCIL ACTION SUBMITTED TO: Honorable Mayor and City Council Members SUBMITTED BY: Fred A. Wilson, City Administrator PREPARED BY: Jim B. Engle, Director of Community Services SUBJECT: Approve Memorandum of Understanding between the City of Huntington Beach and the Huntington Beach Community Garden (HBCG) to manage a community garden on Southern California Edison (SCE) property located at Atlanta Avenue and the Santa Ana River Statement of Issue: The Community Services Department requests approval of a Memorandum of Understanding between the City of Huntington Beach and the Huntington Beach Community Garden (HBCG). Financial Impact: Not applicable. Recommended Action: Motion to: Approve and authorize the Mayor and City Clerk to execute a "Memorandum of Understanding between the City of Huntington Beach and the Huntington Beach Community Garden." Alternative Action(s): Do not approve the Memorandum of Understanding with the Huntington Beach Community Garden and direct staff accordingly. -219- Item 13. - Page 1 REQUEST FOR COUNCIL ACTION MEETING DATE: 6/21/2010 DEPARTMENT ID NUMBER: CS 10-010 Analysis: In December 2009, City Council approved the concept of a community garden on Southern California Edison (SCE) property, at Atlanta Avenue and the Santa Ana River. The 2.5 acre parcel would provide a location where community garden members could use available land for individual gardening plots. The Huntington Beach Community Garden (HBCG) has successfully formed a 501(c) 3 corporation, and has executed bylaws for their organization. Key points in the Memorandum of Understanding include: City obligations include, but are not limited to: • Execute and fund license agreement with Southern California Edison for site, provided budgetary conditions allow. • Work with HBCG to provide water connection to the property. • Provide Community Services facilities, as available, for general membership meetings, waiving reservation fee; allow HBCG to disseminate flyers at community facilities. • Provide at least annually to HBCG a list of approved fertilizers, pesticides, herbicides, etc. which may be used on the parcel. HBCG obligations include, but are not limited to: • Provide copy of bylaws to city, and update city when changes occur. • Provide for city approved written rules and regulations specifying procedure for lot assignments and other operating rules. • Prepare layout of master plan for approval by SCE and city. • Maintain sole responsibility for purchase, construction, installation and maintenance of all amenities, including but not limited to storage units, demonstration plots, benches, trash cans, drinking fountains, and bulletin boards. • Comply with all noise ordinances, all applicable land use regulations, city codes, SCE codes and regulations. • Maintain property, including any vacant or unused plots. • Maintain responsibility to handle enforcement of all rules and regulations, including complaints and any conflict resolution. • Provide annual accounting to city. • Maintain perimeter fencing. • Maintain responsibility for all water fees, uses, charges, with the exception of the annual rental fee for SCE (SCE has not confirmed fee amount at this time). Staff has been negotiating and corresponding with SCE to obtain a License Agreement between the City and SCE. As of this time, SCE has indicated conceptual approval, but has not yet given official written approval for this project. However, staff is requesting City Council approval of the MOU deal points with HBCG, with execution once the SCE License Agreement is finalized. This will allow the deal points in the MOU to be utilized by staff as it continues the approval process with SCE to demonstrate the City and HBCG responsibilities. Item 13. - Page 2 -220- REQUEST FOR COUNCIL ACTION MEETING DATE: 6/21/2010 DEPARTMENT ID NUMBER: CS 10-010 The execution of the MOU with HBCG will then be executed in a timely manner with the execution of the SCE License Agreement, allowing the two agreements to commence on approximately the same date This will allow the HBCG to have their insurance policy effective on the appropriate date. Environmental Status: Not applicable. Strategic Plan Goal: Maintain, improve and obtain funding for infrastructure and equipment Attachment(s): 1. 1Memorandum of Understanding between the City of Huntington Beach and the Huntington Beach Communitv Garden -221- Item 13. - Page 3 ATTACHMENT #1 MEMORANDUM OF UNDERSTANDING BETWEEN 14 THE CITY OF HUNTINGTON BEACH AND THE HUNTINGTON BEACH COMMUNITY GARDEN THIS MEMORANDUM OF UNDERSTANDING ("MOU") is made and entered into on c�71 / , 2010, by and between the CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California (hereinafter referred to as "City"), and HUNTINGTON BEACH COMMUNITY GARDEN, a private non-profit 5010 organization (hereinafter referred to as "HBCG"). WHEREAS, City is in the process of negotiating a License Agreement with Southern California Edison (hereinafter referred to as "SCE") for a two and one-half acre parcel located south of Atlanta Avenue and adjacent to the Santa Ana River; with the knowledge and consent by SCE that the City will use such property as a community garden, and City wishes to accommodate the community's desire for a community garden in Huntington Beach; and Huntington Beach Community Garden (HBCG) wishes to enter into an agreement with City to manage a community garden. NOW, THEREFORE, for and in consideration of the promises and covenants contained in this agreement and intending to be legally bound, the parties covenant and agree as follows: SECTION 1. TERM This MOU will become effective on the date it is approved by the City Council of the City and shall terminate five (5) years thereafter, except with respect to any obligations hereunder which are to be performed thereafter. Upon mutual written consent of the parties, this Agreement may be extended for an additional five (5) year term. Both parties agree to provide notification of their intent to a term extension not later than ninety (90) days prior to the end of the term of the agreement. Written consent by the city shall mean the City Administrator or his or her designee. 1 of 10 10-2525/47559 SECTION 2. OBLIGATIONS OF CITY The obligations of City pursuant to this Agreement will be as follows: • City will work with HBCG to provide a single water connection to the property. • City will allow HBCG to disseminate flyers at community facilities, such as recreation centers, libraries and City Hall. • City will assist HBCG by providing facilities for meeting at a Community Services facility, such as a recreation center as available, with no rental fee (direct staff costs only), for HBCG general membership meetings. • City will fund the License Agreement with SCE for use of the specified property, provided budgetary conditions allow. (Exhibit A) • If City becomes unable or unwilling to maintain the License Agreement with SCE and HBCG chooses not to pay said fee, or if SCE terminates or chooses not to renew its License Agreement with the city, HBCG accepts responsibility to vacate the site, and at its sole expense, return it to its original condition or condition requested by SCE, within 30 (per SCE License Agreement with City) days. • City will allow HBCG on -site distribution of information relating to the' Garden operations and at appropriate city sponsored events with requests submitted in writing to City. • City liaison will provide at the commencement of this agreement and thereafter annually, or more frequently if necessary, to HBCG a list of approved fertilizers, pesticides, fungicides, herbicides, etc., which may be used on the property. • City liaison will be designated by the City's Director of Community Services, and any change in that person will be noticed to HBCG in writing • City will provide to HBCG a copy of all applicable land use regulations, City codes, and all SCE codes upon execution of the agreement. • City may work with HBCG to locate other properties for community garden(s) within the city and with the understanding that the City has financial constraints and no obligation to enter into additional license or lease agreements for such use. • City shall assist HBCG by posting city directional signs to garden site at no expense to HBCG 2of10 10-2525/47559 • City will assist HBCG by providing a reasonable amount of in-house printing and inclusion on the City's webpage. SECTION 3. OBLIGATIONS OF HBCG The obligations of HBCG will be as follows: • HBCG will provide copy of by-laws (Attachment A) to city, and update city when changes are made. • HBCG will provide written rules and regulations specifying the procedure by which plots are assigned for approval of the City. Assignment of the plots will comply with all non- discriminatory laws and practices. • HBCG will be solely responsible for preparing layout or master plan including access ways as required by SCE, location of plots, etc., for approval by SCE and City. HBCG will be responsible for securing prior written approval from City and SCE regarding any changes to the layout or master plan. • HBCG will be solely responsible for the purchase, construction, installation and maintenance of all amenities including but not limited to storage units, demonstration plots, benches, trash cans, drinking fountains and bulletin boards. • HBCG will be responsible for complying with all applicable land use regulations, City codes, and all SCE codes and regulations for operation of the community garden. • HBCG will comply with all City ordinances, including City's noise ordinance, Huntington Beach Municipal Code, Chapter 8.40. • HBCG will be responsible for all maintenance of property, including maintenance of any vacant or unused plots within the property. • HBCG will be responsible for handling enforcement of all rules and regulations, including complaints and any conflict resolution per the rules and regulations established in HBCG Bylaws. • HBCG will provide City with an annual accounting of member fees, proof of 501(c) 3 status, proof of insurance to meet City requirements, list of Board of Directors, and name and phone number of at least two contact people as designated by HBCG Board of Directors who will be the liaisons to City. 3of10 10-2525/47559 • Should City or SCE, at any time, wish to cancel and/or not renew the license for the property with the City, HBCG will be responsible for returning the site to its original condition or the standards set forth by SCE, within thirty (30) days of written Notice by City or SCE • HBCG will post bond of $1,000 with the City, to be returned at termination of this Agreement. • HBCG will maintain in good operating condition perimeter fencing around the property including entry gates. ® HBCG shall be responsible for securing the gate so that the facility is locked. Open hours are to be mutually agreed to by City and HBCG and posted on site. • HBCG may only use fertilizer, pesticide, fungicide, herbicide, etc. that comply with all current standards, in accordance with Federal, State, County, City regulations that have been specified by the City per Section 2 of this agreement. ® HBCG will be responsible for any adverse effects caused by any material used within the site as well as responsible for any equipment, supplies, fencing, irrigation, etc to be maintained in a safe manner within the facility. ® HBCG will be responsible for all water fees, use, charges, related to use of the property with the exception of the annual rental fee for SCE. • HBCG agrees to utilize best management practices (DMP's) for water use. ® HBCG will insure that vehicles will only be permitted on the property for temporary use as necessary to deliver materials or equipment. Vehicle parking will be limited to designated spaces as identified in the approved layout/master plan. • HBCG must receive City consent such as a Temporary Use Permit and/or a Specific Event Permit that may be required to conduct any non -gardening event such as fundraising, sales, and festivals. Certain events may be regulated or prohibited by City land use code or policy. SECTION 4. ACCESS TO CITY MARKS AND LOGOS HBCG shall have the right to use the official Huntington Beach City logo, surfboard logo, and City's "Surf City Huntington Beach" trademark with the prior written approval of City's Director of Community Services for using any of these logos or trademark, which 4of10 10-2525/47559 approval shall be at the sole discretion of the Director. Note: The surfboard logo is not the property of the City. Neither logo will be used by HBCG for commercial purposes. SECTION 5. HOLD HARMLESS HBCG shall protect, defend, indemnify and hold harmless City, its officers, officials, employees, and agents from and against any and all liability, loss, damage, expenses, costs (including without limitation, costs and fees of litigation of every nature) arising out of or in connection with performance of this MOU or its failure to comply with any of its obligations contained in this MOU except such loss or damage which was caused by the sole negligence or willful misconduct of City. SECTION 6. WORKERS COMPENSATION INSURANCE Pursuant to California Labor Code Section 1861, HBCG acknowledges awareness of Section 3700 et seq. of said Code, which requires every employer to be insured against liability for workers' compensation, HBCG covenants, that it will comply with such provisions prior to commencing performance of the work hereunder. HBCG shall maintain worker's compensation insurance in an amount of not less than One Hundred Thousand Dollars ($100,000) bodily injury by accident, each occurrence, One Hundred Thousand Dollars ($100,000) bodily injury by disease, each employee, Two Hundred Fifty Thousand Dollars ($250,000) bodily injury by disease, policy limit. HBCG shall require all subcontractors to provide such workers' compensation insurance for all of the subcontractors' employees. HBCG shall furnish to City a certificate of waiver of subrogation under the terms of the worker's compensation insurance and HBCG shall similarly require all subcontractors to waive subrogation. SECTION 7. GENERAL LIABILITY INSURANCE In addition to the worker's compensation insurance and HBCG's covenant to indemnify City, HBCG shall obtain and furnish to City, a policy of general public liability insurance, including motor vehicle coverage. Said policy shall indemnify HBCG, its officers, agents and employees, while acting within the scope of their duties, against any and all claims arising out of or in connection with this Agreement, and shall provide coverage in not less than the following 5of10 10-2525/47559 amounts combined single limit bodily injury and property damage, including products/completed operations liability and blanket contractual liability of $1,000,000 per occurrence. If coverage is provided under a form which includes a designated general aggregate limit the aggregate limit must be no less than $1,000,000. Said policy shall name City, its agents, its officers, employees and volunteers as Additional Insured's, and shall specifically provide that any other insurance coverage which may be applicable shall be deemed excess coverage and that HBCG insurance shall be primary. Under no circumstances shall the above -mentioned insurance contain a self -insured retention, or a "deductible" or any other similar form of limitation on the required coverage. SECTION 8. ASSIGNING AS BREACH Neither party shall encumber, assign, or otherwise transfer this MOU, or any right or interest in this MOU, without the express written consent of the other party. A consent by a party to one assignment or transfer to another person shall not be deemed to be a consent to any subsequent assignment or transfer to another person. Any encumbrance, assignment or transfer, without the prior written consent of the other party, whether it be voluntary or involuntary, by operation of law or otherwise, is void and shall at the option of the other party, terminate this MOU. SECTION 9. TERMS BINDING ON SUCCESSORS All the terms, covenants and conditions of this MOU shall inure to the benefit of and be binding upon the parties and their successors and assigns. The provisions of this Section shall not be deemed as a waiver of any of the conditions against assignment hereinbefore set forth. SECTION 10. CONFLICT OF INTEREST HBCG shall employ no City official nor any regular City employee in the work performed pursuant to this MOU. No officer or employee of City shall have any financial interest in this MOU in violation of the applicable provisions of the California Government Code. 6of10 10-2525/47559 SECTION 11. PHOTOGRAPHY City may grant permits to persons engaged in the production of still and motion pictures, television programs, advertising and related activities, to take photographs and/or motion pictures of HBCG activities. However, consistent with good safety practices, City will endeavor to give 24-hour advance notification of such activities to HBCG. In addition, if City receives compensation from such persons for such production within the community garden, City will grant 50% of such compensation to HBCG for support of HBCG garden related activities. SECTION 12. NONDISCLOSURES/PRESS RELEASES HBCG shall consult with City prior to issuing any press releases or otherwise making any public statements with respect to the MOU, the transactions contemplated herein, or matters arising herefrom. SECTION 13. CUMULATIVE REMEDIES The remedies given to the parties in this MOU shall not be cumulative and in addition to all remedies now or hereafter allowed by law or elsewhere provided in this MOU, irrespective of the length of time for which such failure continues, shall not constitute a waiver of such breach or a waiver of any subsequent breach by HBCG either of the same or another provision of this MOU. SECTION 15. FORCE MAJEURE — UNAVOIDABLE DELAYS Should the performance of any act required by this MOU to be performed by either City or HBCG be prevented or delayed by reason of an act of God, strike, lockout, labor troubles, inability to secure materials, restrictive governmental laws or regulations, or any other cause (except financial inability) not the fault of the party required to perform the act the time for performance of the act will be extended for a period equivalent to the period of delay and performance of the act during the period of delay will be excused. SECTION 16. NOTICE 7 of 10 10-2525/47559 Any written notice, given under the terms of this MOU, shall be either delivered personally or mailed, certified, mail, postage prepaid, addressed to the party concerned, as follows: City Director of Community Services City of Huntington Beach 2000 Main Street, P.O. Box 190 Huntington Beach, CA 92648 Phone: (714) 536-5486 HBCG Beach Community Garden HBCG Att: President nn Insofess �'• O ��X �� l Huntington Beach, CA Y 0t (� Phone (xxx) xxx-xxxx If a party desires to change the address for notices set forth herein, said parry will provide 30 days advance written notice to the other party of any such change. SECTION 17. ATTORNEY'S FEES In the event suit is brought by either party to enforce the terms and provisions of this MOU or to secure the performance hereof, each party shall bear its own attorney's fees. The prevailing party shall not be entitled to recover attorney's fees from the non -prevailing party. SECTION 18. CONTROLLING LAW AND VENUE The right and liabilities of the parties, and the interpretation and construction of this MOU, shall be determined in accordance with the laws of the State of California. Any controversy arising out of or under this MOU, if litigated, shall be adjudicated in a court of competent jurisdiction in Orange County, California. SECTION 19. SECTION TITLES The section titles in this MOU are inserted only as a matter of convenience and for reference, and in no way define, limit or describe the scope of intent of this MOU or in any way affect this MOU. SECTION 20. TIME OF ESSENCE Time is of the essence with respect to all provisions of this MOU in which a definite time for performance is specified including, but not limited to, the expiration of this MOU. 8of10 10-2525/47559 SECTION 21. SURVIVAL OF INDEMNITIES Termination of this MOU shall not affect the right of the City to enforce any and all indemnities given or made by HBCG under this MOU, nor shall it affect any provisions of this MOU that expressly states that the provision shall survive termination thereof. SECTION 22. NONLIABILITY OF CITY OFFICIAL, EMPLOYEES OR AGENTS No elective or appointed City or City affiliated board, commission or member thereof, or officer, official, employee or agent of City shall be personally liable to HBCG, its successors and assigns, of any default or breach by City under this MOU or for any amount which may become due to HBCG, its successors and assigns, under this MOU or for any obligation of City under this MOU. SECTION 23. TERMINATION This MOU may be terminated by either party with our without cause upon thirty (30) days notice in writing. SECTION 24. MOU IN WRITING This MOU contains and embraces the entire agreement between the parties hereto and neither it nor any part of it may be changed, altered, modified, limited or extended orally or by any other agreement between parties unless such agreement be expressed in writing, signed and acknowledged by City and HBCG, or their successors in interest. SECTION 25. PARTIAL INVALIDITY Should any provision of the MOU be held by a court of competent jurisdiction to be either invalid, void, or unenforceable, the remaining provisions of this MOU shall remain in full force and affect unimpaired by the holding, so long as the reasonable expectations of the parties hereto are not materially impaired. SECTION 26. MOU IN COUNTERPARTS This MOU may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same document. 9of10 10-2525/47559 SECTION 27. NO TITLE INTEREST No title interest of any kind is hereby given and HBCG shall never assert any claim or title to the community garden or any other public property. Use of community garden by HBCG is non-exclusive, and community garden shall at all times during its operating hours remain open for use by the public. SECTION 28. ENTIRETY The foregoing sets forth the entire agreement between the parties. IN WITNESS WHEREOF, the parties hereto have caused this MOU to be executed by and through their authorized officers the day, month and year first above written. BEACH COMMUNITY GARDEN HBCG C By: Print Name ITS: (circle one) ChairmatiYreside� Vice President By: �Aj P� L , U� l�v 1, tat ""' C _ [ v Print Name ITS: (circle one) Secretary/Chief Financial Officer/Asst. Secretary -Treasurer CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California May ATTEST: ity Clerk b [p jFeV APPROVED AS TO FORM: City ttorney VY-o co\-0\0 I. 10 •10 INITIATED AND APPROVED: Di ctor o ommunjT- ices 10 of 10 10-2525/47559 City ®f Huntington Beach 2000 Main Street ® Huntington Beach, CA 92648 OFFICE OF THE CITY CLERK JOAN9 L. FLYNN! CITY CLERK June 23, 2010 Beach Community Garden HBCG Attention: President P. O. Box 4891 Huntington Beach, CA 92615 To Whom It May Concern: Enclosed for your records is a fully executed copy of the Memorandum of Understanding Between the City of Huntington Beach and the Huntington Beach Community Garden. Sincerely, JF:pe Enclosure G:followup:agrmtltr Sister Cities: Anjo, Japan o Waitakere, New Zealand (Telephone: 714-536-5227 )