2300 - Amy Arnold FM & LCE - Certified Farmers Market AgreementEXCLUSIVE FRANCHISE AGREEMENT
This Exclusive Franchise Agreement ("Agreement") is dated April 2, 2018 ("Effective Date"), and is between the
City of Rosemead, a California municipal corporation (City) and Amy Arnold, FM&LCE (Franchisee).
RECITALS
A. City has determined that a weekly Monday night Certified Farmers Market in the Civic Center Plaza (Event)
that is open and available to residents and visitors enhances the community's quality of life.
B. City desires to utilize the services of Franchisee as an independent contractor for the production of the
weekly event in the Rosemead Civic Center Plaza.
C. Franchisee represents that it is fully qualified to develop, coordinate, and produce the weekly event, as
set forth in the Scope of Services (Exhibit A).
Based on Franchisee's representation of its qualifications to develop, coordinate, and produce the Event, City
desires to retain Franchisee and Franchisee desires to serve City to perform these services in accordance with the terms
and conditions of this Agreement. The parties therefore agree to as follows: _
1. Franchisee's Services.
A. Scope of Services. Franchisee shall perform the services described in the Scope of Services, attached as
Exhibit A. City may request, in writing, changes in the scope of services to be performed at any time within the Term of
this Agreement (as defined herein). Any changes mutually agreed upon by the parties, and any increase or decrease in
compensation, shall.be incorporated by written amendments to this Agreement.
B. Party Representatives. For the purposes of this Agreement, the City Representative shall, be the City
Manager, or such other person designated in writing by the City Manager (the City Representative). For the purposes of
this Agreement, the Franchisee Representative shall be Amy Arnold (FM&LCE), President (Franchisee Representative). The
Franchisee Representative shall directly manage Franchisee's services under this Agreement. Franchisee shall not change
the Franchisee Representatives without written notification to the City.
C. Time for Performance. Franchisee shall commence using the franchise to produce the event as of the
Effective Date and shall perform all services by the deadlines established by the City Representative.
D. Standard of Performance. Franchisee shall perform all services under this Agreement in accordance with
the standard of care generally exercised by like professionals under similar circumstances and in a manner deemed
satisfactory to City.
E. Personnel. Franchisee will secure at its own expense, all personnel required to perform the services
required under this Agreement. All of the services required under this Agreement shall be performed by Franchisee or
under its supervision, and all personnel engaged in the work shall be qualified to perform such services.
F. Compliance with Laws. Franchisee shall comply with all applicable federal, state and local laws,
ordinances, codes, regulations and requirements applicable to this Agreement.
G. Permits and Licenses. Franchisee shall obtain and maintain during the Agreement term all necessary
licenses, permits and certificates required by law for the provision of services under this Agreement, including but not
limited to
Franchisee shall obtain a City of Rosemead business license.
I All franchisee vendors must obtain at minimum a single event business license which will
only be applicable for Rosemead Certifies Farmer's Market.
H. Term of Agreement. Term of this Agreement shall be from the Effective Date through October 1, 2018
unless terminated earlier as provided herein.
2. Performance Reviews. The City will conduct periodic Performance Reviews of Franchisee. The Performance
Review process shall also serve as the forum for discussing potential changes in the Farmers Market events, customer
services complaints, or any other matter related to this Agreement. It shall be the duty and obligation of Franchisee to
arrange for and cooperate with the Performance Review process. In the event that the City Manager determines that
Franchisee's performance has not been satisfactory, the City Manager shall give written notice to Franchisee specifying
the deficiencies and providing for reasonable time to cure any specified deficiencies, but no later than sixty (60) days
following notice to Franchisee. Failure to cure specified deficiencies in the time provided shall constitute a material breach
and is grounds for termination of this Agreement.
3. Exclusive Franchise.
A. Grant of Exclusive Franchise. The City hereby grants to Franchisee, subject to the terms and conditions set
forth herein, the exclusive right and privilege to utilize the public right-of-ways located within the Franchise Area, as
depicted in Exhibit B, attached hereto and incorporated by this reference, during the time described in Exhibit A, to
produce the weekly Event (the "Exclusive Franchise"). Franchisee's use of the public right-of-ways shall comply with and
be in conformance with this Agreement, all applicable laws, statutes, ordinances and rules including, without limitation,
health and safety standards regulated by all applicable governmental agencies and employment laws. All use of public
right-of-ways must be stated in writing by Franchisee priorto the Event commencing, afterwhich any changes to the use
of public right-of-ways must be submitted in writing to the City and such changes shall not be made until Franchisee has
received City's written approval.
B. Acceptance of Exclusive Franchise. By its acceptance and execution of this Agreement, Franchisee accepts
the Exclusive Franchise granted by the City subject to the terms and conditions contained herein and agrees to perform
all of the duties and obligations set forth in this Agreement.
C. Franchise Area. As illustrated in Exhibit B, the Franchise Area shall mean public rights-of-way within the
Rosemead Civic Center Plaza, between City Hall and the Library from Valley Blvd. bounded by the south side of Valley
Blvd. down to the vehicular lane that separates the Civic Center Plaza from the Rosemead Community Recreation Center
(RCRC), upon which the event shall be produced. City, at City's sole discretion, reserves the right to amend the Franchise
Area at anytime during the term of this Agreement, pursuant to the notification requirement contained in this Agreement.
Should the City exercise this right, City and Franchisee shall meet and confer on specified Contract Services.
D. City -owned Parking Lots. Event patrons and vendors may use City -owned parking lots located adjacent to
the Franchise Area for parking vehicles.
E. Permits & Licenses. Franchisee shall obtain in advance any and all permits and approvals required by the
City and any other governmenta I agency required for the operation of the Monday night Certified Farmers Market. Permits
and approvals shall include, but are not limited to, the permit to serve food from temporary food booths issued by the
Los Angeles County Department of Health Services. Franchisee, as holder of the Exclusive Franchise granted herein, shall
be responsible for enforcing among Event Vendors and Food Booth Vendors any and all guidelines, laws, codes, and
regulations required by law and applicable governmental codes.
F. Corporate Status & Authorization. Franchisee warrants and represents that Amy Arnold (FM&LCE) is and
shall remain a corporation duly organized, validly existing and in good standing under the laws of the State of California
for the period of time of this Agreement. Franchisee further warrants and represents that Amy Arnold (FM&LCE), is
qualified to transact business in the State of California and has the corporate power to own its properties and to carry on
its business as now:owned and operated and as required by this Agreement. Further, Franchisee warrants and represents
that it has the authority to enter into and perform its obligations under this Agreement, and that the person executing
this Agreement on behalf of Franchisee is authorized by the Board of Directors and bylaws of Amy Arnold (FM&LCE) to do
so. This Agreement constitutes the legal, valid and binding obligation of Franchisee, enforceable against Franchisee in
accordance with its terms, and as defined herein.
4. Franchisee Obligations.
A. Clean-up During and After Events. Franchisee will be responsible for clean-up of spills onto concrete
surfaces during and immediately after each Farmers Market event including power washing or steam cleaning as may be
required. Franchisee will also provide a sufficient number of trash receptacles, including those for recyclables, at each
event and ensure that they are emptied in a timely and effective manner.
B. Cleaning Deposit. Prior to April 2, 2018, Franchisee will provide City with a refundable cleaning deposit
fee of $1,000.00 in the event of any spills on the City's concrete surfaces have not been cleaned for the removal of stains
during or immediately following a Farmers Market event.
C. Compliance with County Health Department & Agriculture Department Regulations. Franchisee will
ensure that all vendors have complied with County regulations including all appropriate required licenses and permits.
D. Business Licenses. Franchisee will ensure that all vendors obtain a City of Rosemead single event business
license.
E. Resale/Seller Permit. Franchisee will ensure that all vendors have obtained a resale/seller permit from
the State Board of Equalization.
F. Inspection of Canopies. Franchisee will inspect and ensure that all EZ -Ups and temporary canopy
structures are adequately anchored and secured during each event on City property. A City representative from the
building division will do an event inspection each week prior to the start of each Certified Farmer's Market and the
inspection fee of $160 per week will be waived.
G. Purchase of Equipment. In order to maintain a consistency and feel for the production of the event,
Franchisee agrees to purchase and provide equipment needed for the production of the event.
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H. Allowance of City Authorized Sponsorship/Marketing Materials in the Event. At the City's discretion,
Franchisee shall allow for any City approved sponsorship/marketing materials to be located in the event.
5. Independent Contractor. Franchisee is, and shall at all times remain as to City, a wholly independent contractor.
Franchisee shall have no power to incur any debt, obligation, or liability on behalf of City. Neither City nor any of its agents
shall have control over the conduct of Franchisee or any of Franchisee's employees, except as set forth in this Agreement.
Franchisee shall not, at any time, or in any manner, represent that it or any of its officers, agents or employees are in any
manner employees of City.
6. Concept Ownership. Franchisee and City agree that the Monday night Certified Farmers Market in Rosemead
Civic Center Plaza is concept developed, enhanced, and owned by the City. In granting this Franchise to Franchisee to
produce the event, it is not the intent of the City to transfer any ownership, right, or title to the event to the Franchisee
except as specifically granted herein. The City shall have the sole discretion to determine whether the event continues
following the termination or expiration of this Agreement. Furthermore, should this Agreement expire or be terminated,
Franchisee agrees that all of the intellectual property related to the event, including but not limited to the logo, signage,
social media accounts, website, vendor listing software, and vendor handbook, are property of the City. Notwithstanding
the foregoing, Franchisee shall, with explicit City approval, have the license to use the name of the event, including all of
the intellectual property associated with the event, including but not limited to the logo, signage, social media accounts,
website, vendor listing software, and vendor handbook, for marketing and public relations purposes. Furthermore,
Franchisee agrees that during the term of this Agreement or any extensions to this Agreement, the City shall have the
absolute authority and discretion to allow or disallow the Franchisee's use of intellectual property associated with the
event, including but not limited to the logo, signage, social media accounts, website, vendor listing software, and vendor
handbook.
7. Indemnification.
A. Indemnities for Third Party Claims.
1) To the fullest extent permitted by law, Franchisee shall, at its sole cost and expense, defend, hold
harmless and indemnify City and its elected officials, officers, attorneys, agents, employees, designated volunteers,
successors, assigns and those City agents serving as independent contractors in the role of City officials (collectively
"Indemnitees"), from and against any and all damages, costs, expenses, liabilities, claims, demands, causes of action,
proceedings, expenses, judgments, penalties, liens, and losses of any nature whatsoever, including fees of accountants,
attorneys, or other professionals and all costs associated therewith and the payment of all consequential damages
(collectively "Liabilities"), in law or equity, whether actual, alleged or threatened, which arise out of, are claimed to arise
out of, pertain to, or relate to the acts oromissions of Franchisee, its officers, agents, servants, employees, subcontractors,
material, contractors ortheir officers, agents, servants or employees (or any entity or individual that Franchisee shall bear
the legal liability thereof) in the performance of this Agreement, including the Indemnitees' active or passive negligence,
except for Liabilities arising from the sole negligence or willful misconduct of the Indemnitees, as determined by final
arbitration or court decision or by the agreement of the parties. Franchisee shall defend the Indemnitees in any action or
actions filed in connection with any Liability with counsel of the Indemnitees' choice, and shall pay all costs and expenses,
including all attorneys' fees and experts' costs actually incurred in connection with such defense. Franchisee shall
reimburse the Indemnitees for any and all legal expenses and costs incurred by Indemnitees in connection therewith.
2) Franchisee shall pay all required taxes on amounts paid to Franchisee under this Agreement, and
indemnify and hold City harmless from any and all taxes, assessments, penalties, and interest asserted against City by
reason of the independent contractor relationship created by this Agreement. Franchisee shall fully comply with the
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workers' compensation law regarding Franchisee and Franchisee's employees. Franchisee shall indemnify and hold City
harmless from any failure of Franchisee to comply with applicable workers' compensation laws.
3) Franchisee shall obtain executed indemnity agreements with provisions identical to those in this
Section 7 from each and every subcontractor or any other person or entity involved by, for, with or on behalf of Franchisee
in the performance of this Agreement. If Franchisee fails to obtain such indemnity obligations, Franchisee shall be fully
responsible and indemnify, hold harmless and defend the Indemnitees from and against any and all Liabilities in law or
equity, whether actual alleged or threatened, which arise out of, are claimed to arise out of, pertain to, or relate to the
acts or omissions of Franchisee's subcontractor, its officers, agents, servants, employees, subcontractors, materialmen,
contractors or their officers, agents, servants or employees (or any entity or individual that Franchisee's subcontractor
shall bear the legal liability thereof) in the performance of this Agreement, including the Indemnitees' active or passive
negligence, except for Liabilities arising from the sole negligence or willful misconduct of the Indemnitees, as determined
by final arbitration or court decision or by the agreement of the parties.
B. Workers' Compensation Acts not Limiting. Franchisee's indemnifications and obligations under this
Section 7, or any other provision of this Agreement, shall not be limited by the provisions of any workers' compensation
act or similar act. Franchisee expressly waives its statutory immunity under such statutes or laws as to City, its officers,
agents, employees and volunteers.
C. Insurance Requirements not Limiting. City does not, and shall not, waive any rights that it may possess
against Franchisee because of the acceptance by City, or the deposit with City, of any insurance policy or certificate
required pursuant to this Agreement. The indemnities in this Section 7 shall apply regardless of whether or not any
insurance policies are determined to be applicable to the liability, tax, assessment, penalty or interest asserted against
City.
D. Survival of Terms. Franchisee's indemnifications and obligations under this Section 7 shall survive the
expiration or termination of this Agreement.
8. Insurance.
A. Minimum Scope and Limits of Insurance. Franchisee shall procure and at all times during the term of this
Agreement carry, maintain, and keep in full force and effect, insurance as follows:
1) Commercial General Liability Insurance with a minimum limit of Two Million Dollars ($2,000,000)
per occurrence for bodily injury, personal injury and property damage and a general aggregate limit of Two Million Dollars
($2,000,000) per project or location. If Franchisee is a limited liability company, the commercial general liability coverage
shall be amended so that Franchisee and its managers, affiliates, employees, agents and other persons necessary or
incidental to its operation are insureds.
2) Automobile Liability Insurance for any owned, non -owned or hired vehicle used in connection
with the performance of this Agreement with a combined single limit of One Million Dollars ($1,000,000 per accident for
bodily injury and property damage). If Franchisee does not use any owned, non -owned or hired vehicles in the
performance of services under this Agreement, Franchisee shall obtain a non -owned auto endorsement to the
Commercial General Liability policy required under Subparagraph A. 1) of this Section 8.
3) Workers' Compensation Insurance as required by the State of California and Employer's Liability
Insurance with a minimum limit of One Million Dollars ($1,000,000 per accident for bodily injury or disease). If Franchisee
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has no employees while performing services under this Agreement, workers' compensation policy is not required, but
Franchisee shall execute a declaration that it has no employees.
B. Acceptability of Insurers. The insurance policies required underthis Section 8 shall be issued by an insurer
admitted to write insurance in the State of California with a rating of A: VII or better in the latest edition of the A.M. Best
Insurance Rating Guide. Self-insurance shall not be considered to comply with the insurance requirements under this
Section 8.
C. Additional Insured. The commercial general and automobile liability policies shall contain an endorsement
naming the City, its officers, employees, agents and volunteers as additional insureds.
D. Primary and Non -Contributing. The insurance policies required under this Section 8 shall apply on a
primary non-contributing basis in relation to any other insurance or self-insurance available to City. Any insurance or self-
insurance maintained by City, its officers, employees, agents or volunteers, shall be in excess of Franchisee's insurance
and shall not contribute with it.
E. Franchisee's Waiver of Subrogation. The insurance policies required underthis Section 8 shall not prohibit
Franchisee and Franchisee's employees, agents or subcontractors from waiving the right of subrogation prior to a loss.
Franchisee hereby waives all rights of subrogation against City.
F. Deductibles and Self -Insured Retentions. Any deductibles or self-insured retentions must be approved by
City. At City's option, Franchisee shall either reduce or eliminate the deductibles or self-insured retentions with respect
to City, or Franchisee shall procure a bond guaranteeing payment of losses and expenses.
G. Cancellations or Modifications to Coverage. Franchisee shall not cancel, reduce or otherwise modify the
insurance policies required by this Section 8 during the term of this Agreement. The commercial general and automobile
liability policies required under this Agreement shall be endorsed to state that should the issuing insurer cancel the policy
before the expiration date, the issuing insurer will endeavor to mail thirty (30) days' prior written notice to City. If any
insurance policy required under this Section 8 is canceled or reduced in coverage or limits, Franchisee shall, within two
(2) business days of notice from the insurer, phone, fax or notify City via certified mail, return receipt requested, of the
cancellation of or changes to the policy.
H. City Remedy for Noncompliance. If Franchisee does not maintain the policies of insurance required under
this Section in full force and effect during the term of this Agreement, or in the event any of Franchisee's policies do not
comply with the requirements underthis Section 8, City may either immediately terminate this Agreement or, if insurance
is available at a reasonable cost, City may, but has no duty to, acquire the necessary insurance and pay, at Franchisee's
expense, the premium thereon. Franchisee shall promptly reimburse City for any premium paid by City or City may
withhold amounts sufficient to pay the premiums from payments due to Franchisee.
I. Evidence of Insurance. Prior to the performance of services under this Agreement, Franchisee shall
furnish the City Manager with a certificate or certificates of insurance and all original endorsements evidencing and
effecting the coverages required under this Section 8. The endorsements are subject to City's approval. Franchisee may
provide complete, certified copies of all required insurance policies to City. Franchisee shall maintain current
endorsements on file with City Manager. Franchisee shall provide proof to City Manager that insurance policies expiring
during the term of this Agreement have been renewed or replaced with other policies providing at least the same
coverage. Franchisee shall furnish such proof at least two (2) weeks prior to the expiration of the coverages.
J. Indemnity Requirements not Limiting. Procurement of insurance by Franchisee shall not be construed as
a limitation of Franchisee's liability or as full performance of Franchisee's duty to indemnify City under Section 7 of this
Agreement.
K. Subcontractor Insurance Requirements. Franchisee shall require each of its subcontractors that perform
services under this Agreement to maintain insurance coverage that meets all of the requirements of this Section 8.
9. Mutual Cooperation.
A. City's Cooperation. City shall provide Franchisee with all pertinent data, documents and other requested
information as is reasonably available for Franchisee's proper performance of the services required underthis Agreement.
B. Franchisee's Cooperation. In the event any claim or action is brought against the City relating to
Franchisee's performance or services rendered under this Agreement, Franchisee shall render any reasonable assistance
that City requires.
10. Records and Inspections. Franchisee shall maintain full and accurate records with respect to all matters covered
under this Agreement for a period of five (5) years. Franchisee shall, without charge, provide City with access to the
records during normal business hours. City may examine and audit the records and make transcripts therefrom, and
inspect all program data, documents, proceedings and activities.
11. Termination of Agreement.
A. Right to Terminate. The City may terminate this Agreement at any time for any
reason or no reason. If the City elects to terminate the Agreement, the City shall provide the Franchisee with at least five
(5) business days of advance notice.
B. Franchisee may terminate this Agreement at any time for any reason or no reason,
after giving written notice to City at least ninety (90) calendar days before the termination is to be effective.
C. Obligations upon Termination. Franchisee shall cease all work under this Agreement on or before the
effective date of termination specified in the notice of termination, but shall continue to produce the Event required by
Exhibit A up to and including on the date of such termination. In no event shall City be liable to Franchisee for any lost
revenue, lost profits, anticipated profits, penalties of any kind or description, loss of rights or services, incidental, punitive,
indirect, special or consequential damages, or monetary damages of any kind.
12. Force Majeure. Franchisee shallnot be liable for any failure to perform its obligations under this Agreement if
Franchisee presents acceptable evidence, in City's sole judgment, that such failure was due to strikes, lockouts, labor
disputes, embargoes, acts of God, inability to obtain labor or materials or reasonable substitutes for labor or materials,
governmental restrictions,' governmental regulations, governmental controls, judicial orders, enemy or hostile
governmental action, civil commotion, fire or other casualty, or other causes beyond Franchisee's reasonable control and
not due to any act by Franchisee.
13. Notices. Any notice, consent, request, demand, bill, invoice, report orother communication required or permitted
under this Agreement shall be in writing and conclusively deemed effective: (a) on personal delivery, (b) on confirmed
delivery by courier service during Franchisee's and City's regular business hours, or (c) three business days after deposit
in the United States mail, by first class mail, postage prepaid, and addressed to the partyto be notified as set forth below:
If to City: If to Franchisee:
City Manager
Amy Arnold
City of Rosemead
FM&LCE
8838 E. Valley Blvd.
2545 Wilkie Drive
Rosemead, CA 91770
Pomona, CA 91767
14. Non -Discrimination and Equal Employment Opportunity. In the performance of this Agreement, Franchisee shall
not discriminate against any employee, subcontractor or applicant for employment because of race, color, religious creed,
sex, gender, gender identity, gender expression, marital status, national origin, ancestry, age, physical disability, mental
disability, medical condition, genetic information, sexual orientation or other basis prohibited by law. Franchisee will take
affirmative action to ensure that subcontractors and applicants are employed, and that employees are treated during
employment, withoutregard to their race, color, religious creed, sex, gender, gender identity, gender expression, marital
status, national origin, ancestry, age, physical disability, mental disability, medical condition, genetic information orsexual
orientation.
15. Prohibition of Assignment and Delegation. Franchisee shall not assign any of its rights or delegate any of its duties
under this Agreement, either in whole or in part, without City's prior written consent. City's consent to an assignment of
rights under this Agreement shall not release Franchisee from any of its obligations or alter any of its primary obligations
to be performed under this Agreement. Any attempted assignment or delegation in violation of this Section 15 shall be
void and of no effect and shall entitle City to terminate this Agreement. As used in this Section 15, "assignment" and
"delegation" means any sale, gift, pledge, hypothecation, encumbrance or other transfer of all or any portion of the rights,
obligations, or liabilities in or arising from this Agreement to any person or entity, whether by operation of law or
otherwise, and regardless of the legal form of the transaction in which the attempted transfer occurs.
16. No Third Party Beneficiaries Intended. This Agreement is made solely for the benefit of the parties to this
Agreement and their respective successors and assigns, and no other person or entity may have or acquire a right by
virtue of this Agreement.
17. Exhibits. Exhibits A, B, C, and D constitute a part of this Agreement and are incorporated into this Agreement by
this reference. If any inconsistency exists or arises between a provision of this Agreement and a provision of any exhibit,
the provisions of this Agreement shall control.
18. Entire Agreement and Modification of Agreement. This Agreement and all exhibits referred to in this Agreement
constitute the final, complete and exclusive statement of the terms of the agreement between the parties pertaining to
the subject matter of this Agreement and supersede all other prior or contemporaneous oral or written understandings
and agreements of the parties. No party has been induced to enter into this Agreement by, nor is any party relying on,
any representation orwarranty except those expressly set forth in this Agreement. This Agreement may be modified only
by a writing signed by both parties.
19. Headings. The headings in this Agreement are included solely for convenience of reference and shall not affect
the interpretation of any provision of this Agreement or any of the rights or obligations of the parties to this Agreement.
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20. Word Usage. Unless the context clearly requires. otherwise, (a) the words "shall," "will" and "agrees" are
mandatory and "may" is permissive; (b) "or" is not exclusive; and (c) "includes" or "including" are not limiting,
21. Time of the Essence. Time is of the essence in respect to all provisions of this Agreement that specify a time for
performance; provided, however, that the foregoing shall not be construed to limit or deprive a party of the benefits of
any grace or use period allowed in this Agreement.
22. Governing Law and Choice of Forum. This Agreement, and any dispute arising from the relationship between the
parties to this Agreement, shall be governed by and construed in accordance with the laws of the State of California,
except that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not
be applied in interpreting this Agreement. Any dispute that arises under or relates to this Agreement (whether contract,
tort or both) shall be resolved in a municipal, superior or federal court with geographic jurisdiction over the City of
Rosemead.
23. Attorneys' Fees. In any litigation or other proceeding by which one party seeks to enforce its rights under this
Agreement (whether in contract, tort or both) or seeks a declaration of any rights or obligations under this Agreement,
the prevailing party shall be awarded reasonable attorneys' fees together with any costs and expenses, to resolve the
dispute and to enforce the final judgment.
24. Contract Interpretation. This Agreement was jointly drafted. No party shall have any portion of this Agreement
interpreted against it by virtue of having drafted that portion or any other portion of this Agreement.
25. Dispute Resolution. If dispute arises out of or relates to this Agreement, orthe breach thereof, and if the dispute
cannot be settled through negotiation, and if either party chooses not to terminate this Agreement, the Parties agree first
to try in good faith to settle the dispute by mediation before resorting to arbitration, litigation, or some other dispute
resolution procedure, with the exception of obtaining injunctive relief to protect public health, safety, or welfare. The
Parties agree to equally share the costs of mediation. With the exception of obtaining injunctive relief to protect public
health safety, or welfare, if either party commences arbitration, litigation or some other dispute resolution procedure
before making a good faith attempt to mediate the dispute, that party waives its rights to recover its costs and attorney's
fees in that procedure, even if it is deemed the prevailing party. The Parties agree that the mediation called for by this
provision shall take place in Los Angeles County utilizing JAMS alternative dispute resolution services.
26. Severability. If a court of competent jurisdiction holds any provision of this Agreement to be illegal, invalid or
unenforceable for any reason, the validity of and enforceability of the remaining provisions of this Agreement shall not
be affected and continue in full force and effect.
27. Waiver. No delay or omission to exercise any right, power or remedy accruing to City under this Agreement shall
impair any right, power or remedy of City, nor shall it be construed as a waiver of, or consent to, any breach or default.
No waiver of any breach, any failure of a condition, or any right or remedy under this Agreement shall be (1) effective
unless it is in writing and signed by the party making the waiver, (2) deemed to be a waiver of, or consent to, any other
breach, failure of a condition, or right or remedy, or (3) deemed to constitute a continuing waiver unless the writing
expressly so states.
[SIGNATURE PAGE FOLLOWS]
The parties, through their duly authorized representatives are signing this Agreement on the date stated in the
introductory clause.
City:
City of Rosemead
A California municipal corporation
By.
arae: Gloria Molleda
Title: City Manager
124.311
By: cc[[�� y
Name: _ 6-na4 bvl-fi Idez
Title: City Clerk
APPROVED AS TO FROM /
Name: Rachel Richman
Title: City Attorney
Franchisee:
Amy Arnold
FM&LCE
By: C,
Name: my Arnold, FM&LCE
Title: President
WE
(Two signatures of corporate officers required
for corporations under Corporations Code
Section 313, unless corporate documents
authorize only one person to sign this
Agreement on behalf of the Corporation)
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EXHIBIT A
Scope of Services
The Monday night Certified Farmers Market shall be held in the Franchise Area on the Rosemead Civic Center Plaza.
This is the geographic area within the City that is bounded by the south side of Valley Boulevard, between City Hall
and the Library down to the vehicular lane known as Steele Street that separates the Civic Center Plaza from the
Rosemead Community Recreation Center (RCRC) as depicted on Exhibit B.
The Monday Night Farmers Market shall occur each Monday beginning at 5:00 PM and ending at 9:OO PM from April
2, 2018 through October 1, 2018. These times may be amended only with the expressed written consent of the City.
It is the City's expressed desire that the Monday night Certified Farmers Market should have an appealing and visually
attractive look and feel. Franchisee shall endeavor to fulfill this desire bytaking reasonable steps to maintain a festive
yet professional visual aesthetic event. More specifically, Franchisee shall endeavor to achieve the City's visual
appearance and aesthetic goals in the following areas:
• Pedestrian Thoroughfares. Franchisee shall maintain clear and clean thoroughfares for pedestrian traffic,
and ensure the thoroughfares comply with Americans with Disabilities Act (ADA) access requirements at
all times. It shall be the duty and responsibility of the Franchisee to familiarize itself with the laws, statutes
ordinances and rules as they pertain to federal and state ADA access requirements and ensure the
enforcement thereof.
• Farmer's Market. Franchisee shall ensure that the Certified Farmer's Market area is kept safe, clean and
free from any obstructions or obstacles.
• Event Staff. Franchisee's employees and staff shall wear a uniform shirt, to be provided by the Franchisee,
during the Monday Night Farmers Market hours of operation.
• Franchisee further agrees to the following Event provisions:
• Provide a family -centered and produce -centered Farmers Market where ideally a minimum 25% of the
vendors will be engaged in the sale of fruits, vegetables, flowers, fish, baked goods, and quality, prepared
foods to go. The remainder of the market may accommodate a number of different users, and the
Franchisee commits to working to attract "artisan quality" craft good venders.
• Give priority to any and all Rosemead businesses that may want to participate.
• Provide ongoing live entertainment at the event each week. NOTE: Music noise shall be reduced during
special meetings as to not be heard inside City Council Chambers. (See attachment)
• Create and follow a written plan for reduced access closure and safety that is acceptable to the City. The
Franchisee shall develop and install traffic control signage throughout the event that is deemed
appropriate by the City.
• Set up of booths to be completed between 4:00-5:00 p.m. each Monday Farmers Market so as to begin
on time (5:00 p.m.) and timely dissemble all booths and equipment between 9:00 —10:00 p.m. after the
event so that normal traffic is restored by 10:00 p.m.
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• Provide proof of acquiring all permits & licenses required by law.
• Maintain clean and safe conditions, and an attractive appearance, of all aspects of the event including but
not limited to ADA compliance, trash pick-up, and prompt clean-up of spills onto concrete area of the
Civic Center Plaza.
• Customer Service. Franchisee shall maintain a log of complaints and other matters of concern that pertain
to the Monday night Certified Farmers Market. The log shall include the name of the complainant, a
description of the complaint, how Franchisee resolved the complaint, the date that Franchisee first
became aware of the complaint and the date of resolution. Franchisee shall endeavor to resolve all
complaints in a timely manner. Any complaint or matter of concern that, after a reasonable effort by
Franchisee, is not resolved shall be reported immediately to the City.
• Equipment. Franchisee shall maintain all equipment used to coordinate the event in a safe and clean
manner, and in good operating condition and appearance. Franchisee shall ensure all equipment specified
or required by the Encroachment Permit is properly installed and maintained.
• Trash Collection & Clean-up. Maintaining and promoting a clean, safe and attractive environment is an
important City objective. Consequently, Franchisee shall make all necessary provisions for waste
management and clean-up of all areas directly impacted by the Farmers Market, Franchisee shall assign
staff to maintain a safe, clean and sanitary environment within the Franchise Area and adjacent areas. At
the completion of each Farmers Market event, Franchisee shall ensure that the Franchise Area be left in
a clean condition including power washing or steam -cleaning of spills on concrete areas. Franchisee shall
conduct inspections to ensure compliance with this section.
• Franchisee shall promote the Farmers Market to the public.
• Franchisee shall comply with all City ordinances and directives.
• Franchisee shall provide all necessary trash containers, trash clean up, refuse disposal services, and a plan
for cleaning up all affected parking lots and the steam cleaning of affected concrete areas on a weekly
basis.
• In accordance with the traffic control plan approved by the City, Franchisee shall set up and remove street
barricades for street closure and reopening.
• Franchisee shall provide an all-inclusive electrical service plan for the Farmers Market.
• City must provide restroom access at least 200' from the Market, i.e., City Hall restrooms, Rosemead
Center, Port -a -Potty, etc.
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N
W
V
so
r
Planning Commission Meetings 2018
Monday's
• April
2& 16
• May
7&21
• June
4& 18
• July
2 & 16
• August
6 & 20
• September
17
• October
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NOTE: other meetings may come up but will inform as soon as the Parks and Recreation Department is informed.
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NW—
EXCLUSIVE FRANCHISE AGREEMENT
This Exclusive Franchise Agreement ("Agreement") is dated May 24, 2017 ("Effective
Date"), and is between the City of Rosemead, a California municipal corporation (City) and Amy
Arnold, FM&LCE (Franchisee).
RECITALS
A. City has determined that a weekly Monday night Certified Farmers Market in the
Civic Center Plaza (Event) that is open and available to residents and visitors enhances the
community's quality of life.
B. City desires to utilize the services of Franchisee as an independent contractor for
the production of the weekly event in the Rosemead Civic Center Plaza.
C. Franchisee represents that it is fully qualified to develop, coordinate, and produce
the weekly event, as set forth in the Scope of Services (Exhibit A).
Based on Franchisee's representation of its qualifications to develop, coordinate, and
produce the Event, City desires to retain Franchisee and Franchisee desires to serve City to
perform these services in accordance with the terms and conditions of this Agreement. The
parties therefore agree to as follows:
1. Franchisee's Services.
A. Scope of Services. Franchisee shall perform the services described in the Scope
of Services, attached as Exhibit A. City may request, in writing, changes in the scope of services
to be performed at any time within the Term of this Agreement (as defined herein). Any changes
mutually agreed upon by the parties, and any increase or decrease in compensation, shall be
incorporated by written amendments to this Agreement.
B. Party Representatives. For the purposes of this Agreement, the City
Representative shall be the City Manager, or such other person designated in writing by the City
Manager (the City Representative). For the purposes of this Agreement, the Franchisee
Representative shall be Amy Arnold (FM&LCE), President (Franchisee Representative). The
Franchisee Representative shall directly manage Franchisee's services under this Agreement.
Franchisee shall not change the Franchisee Representatives without written notification to the
City.
C. Time for Performance. Franchisee shall commence using the franchise to produce
the event as of the Effective Date and shall perform all services by the deadlines established by
the City Representative.
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D. Standard of Performance. Franchisee shall perform all services under this
Agreement in accordance with the standard of care generally exercised by like professionals
under similar circumstances and in a manner deemed satisfactory to City.
E. Personnel. Franchisee will secure at its own expense, all personnel required to
perform the services required under this Agreement. All of the services required under this
Agreement shall be performed by Franchisee or under its supervision, and all personnel engaged
in the work shall be qualified to perform such services.
F. Compliance with Laws. Franchisee shall comply with all applicable federal, state
and local laws, ordinances, codes, regulations and requirements applicable to this Agreement.
G. Permits and Licenses. Franchisee shall obtain and maintain during the Agreement
term all necessary licenses, permits and certificates required by law for the provision of services
under this Agreement, including but not limited to
Franchisee shall obtain a City of Rosemead business license.
Ii All franchisee vendors must obtain at minimum a single event
business license which will only be applicable for Rosemead Certifies Farmer's
Market.
H. Term of Agreement. Term of this Agreement shall be from the Effective Date
through September 25, 2017 unless terminated earlier as provided herein.
2. Performance Reviews.The City will conduct periodic Performance Reviews of Franchisee.
The Performance Review process shall also serve as the forum for discussing potential changes
in the Farmers Market events, customer services complaints, or any other matter related to this
Agreement. It shall be the duty and obligation of Franchisee to arrange for and cooperate with
the Performance Review process. In the event that the City Manager determines that
Franchisee's performance has not been satisfactory, the City Manager shall give written notice
to Franchisee specifying the deficiencies and providing for reasonable time to cure any specified
deficiencies, but no later than sixty (60) days following notice to Franchisee. Failure to cure
specified deficiencies in the time provided shall constitute a material breach and is grounds for
termination of this Agreement.
3. Exclusive Franchise.
A. Grant of Exclusive Franchise.The City hereby grants to Franchisee,subject to the terms
and conditions set forth herein, the exclusive right and privilege to utilize the public right-of-
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a
ways located within the Franchise Area, as depicted in Exhibit B, attached hereto and
incorporated by this reference, during the time described in Exhibit A, to produce the weekly
Event (the "Exclusive Franchise"). Franchisee's use of the public right-of-ways shall comply with
and be in conformance with this Agreement, all applicable laws, statutes, ordinances and rules
including, without limitation, health and safety standards regulated by all applicable
governmental agencies and employment laws. All use of public right-of-ways must be stated in
writing by Franchisee prior to the Event commencing, after which any changes to the use of
public right-of-ways must be submitted in writing to the City and such changes shall not be made
until Franchisee has received City's written approval.
B. Acceptance of Exclusive Franchise. By its acceptance and execution of this
Agreement, Franchisee accepts the Exclusive Franchise granted by the City subject to the terms
and conditions contained herein and agrees to perform all of the duties and obligations set forth
in this Agreement.
C. Franchise Area. As illustrated in Exhibit B, the Franchise Area shall mean public
rights-of-way within the Rosemead Civic Center Plaza, between City Hall and the Library from
Valley Blvd. bounded by the south side of Valley Blvd. down to the vehicular lane that separates
the Civic Center Plaza from the Rosemead Community Recreation Center(RCRC), upon which the
event shall be produced. City, at City's sole discretion, reserves the right to amend the Franchise
Area at any time during the term of this Agreement, pursuant to the notification requirement
contained in this Agreement. Should the City exercise this right, City and Franchisee shall meet
and confer on specified Contract Services.
D. City-owned Parking Lots. Event patrons and vendors may use City-owned parking
lots located adjacent to the Franchise Area for parking vehicles.
E. Permits & Licenses. Franchisee shall obtain in advance any and all permits and
approvals required by the City and any other governmental agency required for the operation of
the Monday night Certified Farmers Market. Permits and approvals shall include, but are not
limited to,the permit to serve food from temporary food booths issued by the Los Angeles County
Department of Health Services. Franchisee, as holder of the Exclusive Franchise granted herein,
shall be responsible for enforcing among Event Vendors and Food Booth Vendors any and all
guidelines, laws, codes, and regulations required by law and applicable governmental codes.
F. Corporate Status & Authorization. Franchisee warrants and represents that Amy
Arnold (FM&LCE) is and shall remain a corporation duly organized, validly existing and in good
standing under the laws of the State of California for the period of time of this Agreement.
Franchisee further warrants and represents that Amy Arnold (FM&LCE), is qualified to transact
business in the State of California and has the corporate power to own its properties and to carry
on its business as now owned and operated and as required by this Agreement. Further,
Franchisee warrants and represents that it has the authority to enter into and perform its
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obligations under this Agreement, and that the person executing this Agreement on behalf of
Franchisee is authorized by the Board of Directors and bylaws of Amy Arnold (FM&LCE) to do so.
This Agreement constitutes the legal, valid and binding obligation of Franchisee, enforceable
against Franchisee in accordance with its terms, and as defined herein.
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4. Franchisee Obligations.
A. Clean-up During and After Events. Franchisee will be responsible for clean-up of
spills onto concrete surfaces during and immediately after each Farmers Market event including
power washing or steam cleaning as may be required. Franchisee will also provide a sufficient
number of trash receptacles, including those for recyclables, at each event and ensure that they
are emptied in a timely and effective manner.
B. Cleaning Deposit. Prior to May 29, 2017, Franchisee will provide City with a
refundable cleaning deposit fee of $1,000.00 in the event of any spills on the City's concrete
surfaces have not been cleaned for the removal of stains during or immediately following a
Farmers Market event.
C. Compliance with County Health Department & Agriculture Department
Regulations. Franchisee will ensure that all vendors have complied with County regulations
including all appropriate required licenses and permits.
D. Business Licenses. Franchisee will ensure that all vendors obtain a City of
Rosemead single event business license.
E. Resale/Seller Permit. Franchisee will ensure that all vendors have obtained a
resale/seller permit from the State Board of Equalization.
F. Inspection of Canopies. Franchisee will inspect and ensure that all EZ-Ups and
temporary canopy structures are adequately anchored and secured during each event on City
property. A City representative from the building division will do an event inspection each week
prior to the start of each Certified Farmer's Market and the inspection fee of$160 per week will
be waived.
G. Purchase of Equipment. In order to maintain a consistency and feel for the
production of the event, Franchisee agrees to purchase and provide equipment needed for the
production of the event.
H. Allowance of City Authorized Sponsorship/Marketing Materials in the Event. At
the City's discretion, Franchisee shall allow for any City approved sponsorship/marketing
materials to be located in the event.
5. Independent Contractor. Franchisee is, and shall at all times remain as to City, a wholly
independent contractor. Franchisee shall have no power to incur any debt, obligation, or liability
on behalf of City. Neither City nor any of its agents shall have control over the conduct of
Franchisee or any of Franchisee's employees, except as set forth in this Agreement. Franchisee
5
shall not, at any time, or in any manner, represent that it or any of its officers, agents or
employees are in any manner employees of City.
6. Concept Ownership. Franchisee and City agree that the Monday night Certified Farmers
Market in Rosemead Civic Center Plaza is concept developed, enhanced, and owned by the City.
In granting this Franchise to Franchisee to produce the event, it is not the intent of the City to
transfer any ownership, right, or title to the event to the Franchisee except as specifically granted
herein. The City shall have the sole discretion to determine whether the event continues
following the termination or expiration of this Agreement. Furthermore, should this Agreement
expire or be terminated, Franchisee agrees that all of the intellectual property related to the
event, including but not limited to the logo, signage, social media accounts, website, vendor
listing software, and vendor handbook, are property of the City. Notwithstanding the foregoing,
Franchisee shall, with explicit City approval, have the license to use the name of the event,
including all of the intellectual property associated with the event, including but not limited to
the logo,signage, social media accounts,website,vendor listing software,and vendor handbook,
for marketing and public relations purposes. Furthermore, Franchisee agrees that during the
term of this Agreement or any extensions to this Agreement, the City shall have the absolute
authority and discretion to allow or disallow the Franchisee's use of intellectual property
associated with the event, including but not limited to the logo, signage, social media accounts,
website, vendor listing software, and vendor handbook.
7. Indemnification.
A. Indemnities for Third Party Claims.
1) To the fullest extent permitted by law, Franchisee shall, at its sole cost and
expense, defend, hold harmless and indemnify City and its elected officials, officers, attorneys,
agents, employees, designated volunteers, successors, assigns and those City agents serving as
independent contractors in the role of City officials (collectively"Indemnitees"), from and against
any and all damages, costs, expenses, liabilities, claims, demands, causes of action, proceedings,
expenses, judgments, penalties, liens, and losses of any nature whatsoever, including fees of
accountants, attorneys, or other professionals and all costs associated therewith and the
payment of all consequential damages (collectively"Liabilities"), in law or equity,whether actual,
alleged or threatened, which arise out of, are claimed to arise out of, pertain to, or relate to the
acts or omissions of Franchisee, its officers, agents, servants, employees, subcontractors,
material, contractors or their officers, agents, servants or employees (or any entity or individual
that Franchisee shall bear the legal liability thereof) in the performance of this Agreement,
including the Indemnitees' active or passive negligence, except for Liabilities arising from the sole
negligence or willful misconduct of the Indemnitees, as determined by final arbitration or court
decision or by the agreement of the parties. Franchisee shall defend the Indemnitees in any
action or actions filed in connection with any Liability with counsel of the Indemnitees' choice,
and shall pay all costs and expenses, including all attorneys' fees and experts' costs actually
6
incurred in connection with such defense. Franchisee shall reimburse the Indemnitees for any
and all legal expenses and costs incurred by Indemnitees in connection therewith.
2) Franchisee shall pay all required taxes on amounts paid to Franchisee
under this Agreement, and indemnify and hold City harmless from any and all taxes, assessments,
penalties,and interest asserted against City by reason of the independent contractor relationship
created by this Agreement. Franchisee shall fully comply with the workers' compensation law
regarding Franchisee and Franchisee's employees. Franchisee shall indemnify and hold City
harmless from any failure of Franchisee to comply with applicable workers' compensation laws.
3) Franchisee shall obtain executed indemnity agreements with provisions
identical to those in this Section 7 from each and every subcontractor or any other person or
entity involved by, for, with or on behalf of Franchisee in the performance of this Agreement. If
Franchisee fails to obtain such indemnity obligations, Franchisee shall be fully responsible and
indemnify, hold harmless and defend the Indemnitees from and against any and all Liabilities in
law or equity, whether actual alleged or threatened, which arise out of, are claimed to arise out
of, pertain to, or relate to the acts or omissions of Franchisee's subcontractor, its officers, agents,
servants, employees, subcontractors, materialmen, contractors or their officers, agents,servants
or employees (or any entity or individual that Franchisee's subcontractor shall bear the legal
liability thereof) in the performance of this Agreement, including the Indemnitees' active or
passive negligence, except for Liabilities arising from the sole negligence or willful misconduct of
the Indemnitees, as determined by final arbitration or court decision or by the agreement of the
parties.
B. Workers' Compensation Acts not Limiting. Franchisee's indemnifications and
obligations under this Section 7, or any other provision of this Agreement, shall not be limited
by the provisions of any workers' compensation act or similar act. Franchisee expressly waives
its statutory immunity under such statutes or laws as to City, its officers, agents, employees and
volunteers.
C. Insurance Requirements not Limiting. City does not, and shall not,waive any rights
that it may possess against Franchisee because of the acceptance by City, or the deposit with
City, of any insurance policy or certificate required pursuant to this Agreement. The indemnities
in this Section 7 shall apply regardless of whether or not any insurance policies are determined
to be applicable to the liability, tax, assessment, penalty or interest asserted against City.
D. Survival of Terms. Franchisee's indemnifications and obligations under this Section
7 shall survive the expiration or termination of this Agreement.
8. Insurance.
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A. Minimum Scope and Limits of Insurance. Franchisee shall procure and at all times
during the term of this Agreement carry, maintain, and keep in full force and effect, insurance as
follows:
1) Commercial General Liability Insurance with a minimum limit of Two
Million Dollars ($2,000,000) per occurrence for bodily injury, personal injury and property
damage and a general aggregate limit of Two Million Dollars ($2,000,000) per project or location.
If Franchisee is a limited liability company, the commercial general liability coverage shall be
amended so that Franchisee and its managers, affiliates, employees, agents and other persons
necessary or incidental to its operation are insureds.
2) Automobile Liability Insurance for any owned, non-owned or hired vehicle
used in connection with the performance of this Agreement with a combined single limit of One
Million Dollars ($1 per accident for bodily injury and property damage). If Franchisee does not
use any owned, non-owned or hired vehicles in the performance of services under this
Agreement, Franchisee shall obtain a non-owned auto endorsement to the Commercial General
Liability policy required under Subparagraph A. 1) of this Section 8.
3) Workers' Compensation Insurance as required by the State of California
and Employer's Liability Insurance with a minimum limit of One Million Dollars ($1 per accident
for bodily injury or disease). If Franchisee has no employees while performing services under this
Agreement, workers' compensation policy is not required, but Franchisee shall execute a
declaration that it has no employees.
B. Acceptability of Insurers.The insurance policies required under this Section 8 shall
be issued by an insurer admitted to write insurance in the State of California with a rating of A:
VII or better in the latest edition of the A.M. Best Insurance Rating Guide. Self-insurance shall not
be considered to comply with the insurance requirements under this Section 8.
C. Additional Insured. The commercial general and automobile liability policies shall
contain an endorsement naming the City, its officers, employees, agents and volunteers as
additional insureds.
D. Primary and Non-Contributing. The insurance policies required under this Section
8 shall apply on a primary non-contributing basis in relation to any other insurance or self-
insurance available to City. Any insurance or self-insurance maintained by City, its officers,
employees, agents or volunteers, shall be in excess of Franchisee's insurance and shall not
contribute with it.
E. Franchisee's Waiver of Subrogation. The insurance policies required under this
Section 8 shall not prohibit Franchisee and Franchisee's employees, agents or subcontractors
8
from waiving the right of subrogation prior to a loss. Franchisee hereby waives all rights of
subrogation against City.
9
F. Deductibles and Self-Insured Retentions. Any deductibles or self-insured
retentions must be approved by City. At City's option, Franchisee shall either reduce or eliminate
the deductibles or self-insured retentions with respect to City, or Franchisee shall procure a bond
guaranteeing payment of losses and expenses.
G. Cancellations or Modifications to Coverage. Franchisee shall not cancel, reduce or
otherwise modify the insurance policies required by this Section 8 during the term of this
Agreement. The commercial general and automobile liability policies required under this
Agreement shall be endorsed to state that should the issuing insurer cancel the policy before the
expiration date, the issuing insurer will endeavor to mail thirty (30) days' prior written notice to
City. If any insurance policy required under this Section 8 is canceled or reduced in coverage or
limits, Franchisee shall, within two (2) business days of notice from the insurer, phone, fax or
notify City via certified mail, return receipt requested, of the cancellation of or changes to the
policy.
H. City Remedy for Noncompliance. If Franchisee does not maintain the policies of
insurance required under this Section 8 in full force and effect during the term of this Agreement,
or in the event any of Franchisee's policies do not comply with the requirements under this
Section 8, City may either immediately terminate this Agreement or, if insurance is available at a
reasonable cost, City may, but has no duty to, acquire the necessary insurance and pay, at
Franchisee's expense, the premium thereon. Franchisee shall promptly reimburse City for any
premium paid by City or City may withhold amounts sufficient to pay the premiums from
payments due to Franchisee.
I. Evidence of Insurance. Prior to the performance of services under this
Agreement, Franchisee shall furnish the City Manager with a certificate or certificates of
insurance and all original endorsements evidencing and effecting the coverages required under
this Section 8. The endorsements are subject to City's approval. Franchisee may provide
complete, certified copies of all required insurance policies to City. Franchisee shall maintain
current endorsements on file with City Manager. Franchisee shall provide proof to City Manager
that insurance policies expiring during the term of this Agreement have been renewed or
replaced with other policies providing at least the same coverage. Franchisee shall furnish such
proof at least two (2) weeks prior to the expiration of the coverages.
J. Indemnity Requirements not Limiting. Procurement of insurance by Franchisee
shall not be construed as a limitation of Franchisee's liability or as full performance of
Franchisee's duty to indemnify City under Section 7 of this Agreement.
K. Subcontractor Insurance Requirements. Franchisee shall require each of its
subcontractors that perform services under this Agreement to maintain insurance coverage that
meets all of the requirements of this Section 8.
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9. Mutual Cooperation.
A. City's Cooperation. City shall provide Franchisee with all pertinent data,
documents and other requested information as is reasonably available for Franchisee's proper
performance of the services required under this Agreement.
B. Franchisee's Cooperation. In the event any claim or action is brought against the
City relating to Franchisee's performance or services rendered under this Agreement, Franchisee
shall render any reasonable assistance that City requires.
10. Records and Inspections. Franchisee shall maintain full and accurate records with respect
to all matters covered under this Agreement for a period of five (5) years. Franchisee shall,
without charge, provide City with access to the records during normal business hours. City may
examine and audit the records and make transcripts therefrom, and inspect all program data,
documents, proceedings and activities.
11. Termination of Agreement.
A. Right to Terminate. The City may terminate this Agreement at any time for any
reason or no reason. If the City elects to terminate the Agreement, the City shall provide the
Franchisee with at least five (5) business days of advance notice.
B. Franchisee may terminate this Agreement at any time for any reason or no reason,
after giving written notice to City at least ninety (90) calendar days before the termination is to
be effective.
C. Obligations upon Termination. Franchisee shall cease all work under this
Agreement on or before the effective date of termination specified in the notice of termination,
but shall continue to produce the Event required by Exhibit A up to and including on the date of
such termination. In no event shall City be liable to Franchisee for any lost revenue, lost profits,
anticipated profits, penalties of any kind or description, loss of rights or services, incidental,
punitive, indirect, special or consequential damages, or monetary damages of any kind.
12. Force Majeure. Franchisee shall not be liable for any failure to perform its obligations
under this Agreement if Franchisee presents acceptable evidence, in City's sole judgment, that
such failure was due to strikes, lockouts, labor disputes, embargoes, acts of God, inability to
obtain labor or materials or reasonable substitutes for labor or materials, governmental
restrictions, governmental regulations, governmental controls, judicial orders, enemy or hostile
governmental action,civil commotion,fire or other casualty,or other causes beyond Franchisee's
reasonable control and not due to any act by Franchisee.
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13. Notices. Any notice, consent, request, demand, bill, invoice, report or other
communication required or permitted under this Agreement shall be in writing and conclusively
deemed effective: (a) on personal delivery, (b) on confirmed delivery by courier service during
Franchisee's and City's regular business hours, or (c) three business days after deposit in the
United States mail, by first class mail, postage prepaid, and addressed to the party to be notified
as set forth below:
If to City: If to Franchisee:
City Manager Amy Arnold
City of Rosemead FM&LCE
8838 E. Valley Blvd. 2545 Wilkie Drive
Rosemead, CA 91770 Pomona, CA 91767
14. Non-Discrimination and Equal Employment Opportunity. In the performance of this
Agreement, Franchisee shall not discriminate against any employee, subcontractor or applicant
for employment because of race, color, religious creed, sex, gender, gender identity, gender
expression, marital status, national origin, ancestry, age, physical disability, mental disability,
medical condition, genetic information, sexual orientation or other basis prohibited by law.
Franchisee will take affirmative action to ensure that subcontractors and applicants are
employed, and that employees are treated during employment, without regard to their race,
color, religious creed, sex, gender, gender identity, gender expression, marital status, national
origin, ancestry, age, physical disability, mental disability, medical condition, genetic information
or sexual orientation.
15. Prohibition of Assignment and Delegation. Franchisee shall not assign any of its rights or
delegate any of its duties under this Agreement, either in whole or in part, without City's prior
written consent. City's consent to an assignment of rights under this Agreement shall not release
Franchisee from any of its obligations or alter any of its primary obligations to be performed
under this Agreement. Any attempted assignment or delegation in violation of this Section 15
shall be void and of no effect and shall entitle City to terminate this Agreement. As used in this
Section 15, "assignment" and "delegation" means any sale, gift, pledge, hypothecation,
encumbrance or other transfer of all or any portion of the rights, obligations, or liabilities in or
arising from this Agreement to any person or entity, whether by operation of law or otherwise,
and regardless of the legal form of the transaction in which the attempted transfer occurs.
16. No Third Party Beneficiaries Intended. This Agreement is made solely for the benefit of
the parties to this Agreement and their respective successors and assigns, and no other person
or entity may have or acquire a right by virtue of this Agreement.
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17. Exhibits. Exhibits A, B, C, and D constitute a part of this Agreement and are incorporated
into this Agreement by this reference. If any inconsistency exists or arises between a provision of
this Agreement and a provision of any exhibit, the provisions of this Agreement shall control.
18. Entire Agreement and Modification of Agreement. This Agreement and all exhibits
referred to in this Agreement constitute the final, complete and exclusive statement of the terms
of the agreement between the parties pertaining to the subject matter of this Agreement and
supersede all other prior or contemporaneous oral or written understandings and agreements of
the parties. No party has been induced to enter into this Agreement by, nor is any party relying
on, any representation or warranty except those expressly set forth in this Agreement. This
Agreement may be modified only by a writing signed by both parties.
19. Headings. The headings in this Agreement are included solely for convenience of
reference and shall not affect the interpretation of any provision of this Agreement or any of the
rights or obligations of the parties to this Agreement.
20. Word Usage. Unless the context clearly requires otherwise, (a) the words "shall," "will"
and "agrees" are mandatory and "may" is permissive; (b) "or" is not exclusive; and (c) "includes"
or "including" are not limiting
21. Time of the Essence. Time is of the essence in respect to all provisions of this Agreement
that specify a time for performance; provided, however,that the foregoing shall not be construed
to limit or deprive a party of the benefits of any grace or use period allowed in this Agreement.
22. Governing Law and Choice of Forum. This Agreement, and any dispute arising from the
relationship between the parties to this Agreement, shall be governed by and construed in
accordance with the laws of the State of California, except that any rule of construction to the
effect that ambiguities are to be resolved against the drafting party shall not be applied in
interpreting this Agreement. Any dispute that arises under or relates to this Agreement (whether
contract,tort or both) shall be resolved in a municipal, superior or federal court with geographic
jurisdiction over the City of Rosemead.
23. Attorneys' Fees. In any litigation or other proceeding by which one party seeks to enforce
its rights under this Agreement (whether in contract, tort or both) or seeks a declaration of any
rights or obligations under this Agreement, the prevailing party shall be awarded reasonable
attorneys' fees together with any costs and expenses, to resolve the dispute and to enforce the
final judgment.
24. Contract Interpretation. This Agreement was jointly drafted. No party shall have any
portion of this Agreement interpreted against it by virtue of having drafted that portion or any
other portion of this Agreement.
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25. Dispute Resolution. If a dispute arises out of or relates to this Agreement, or the breach
thereof, and if the dispute cannot be settled through negotiation, and if either party chooses not
to terminate this Agreement, the Parties agree first to try in good faith to settle the dispute by
mediation before resorting to arbitration, litigation, or some other dispute resolution procedure,
with the exception of obtaining injunctive relief to protect public health, safety, or welfare. The
Parties agree to equally share the costs of mediation. With the exception of obtaining injunctive
relief to protect public health ,safety, or welfare, if either party commences arbitration, litigation
or some other dispute resolution procedure before making a good faith attempt to mediate the
dispute, that party waives its rights to recover its costs and attorney's fees in that procedure,
even if it is deemed the prevailing party. The Parties agree that the mediation called for by this
provision shall take place in Los Angeles County utilizing JAMS alternative dispute resolution
services.
26. Severability. If a court of competent jurisdiction holds any provision of this Agreement to
be illegal, invalid or unenforceable for any reason, the validity of and enforceability of the
remaining provisions of this Agreement shall not be affected and continue in full force and effect.
27. Waiver. No delay or omission to exercise any right, power or remedy accruing to City
under this Agreement shall impair any right, power or remedy of City, nor shall it be construed
as a waiver of, or consent to, any breach or default. No waiver of any breach, any failure of a
condition,or any right or remedy under this Agreement shall be (1) effective unless it is in writing
and signed by the party making the waiver, (2)deemed to be a waiver of,or consent to, any other
breach,failure of a condition, or right or remedy, or(3) deemed to constitute a continuing waiver
unless the writing expressly so states.
[SIGNATURE PAGE FOLLOWS]
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I
The parties, through their duly authorized representatives are signing this Agreement on the date stated in the
introductory clause.
City: Franchisee:
City of Rosemead Amy Arnold
A California municipal corporation FM&LCE
By: By:
Name: Bill Manis Name: Amy Arnold, FM&LCE
Title: City Manager Title: President
ATTEST: By:
Name:
/AD Title:
By: 111111
Name: Marc Donohue (Two signatures of corporate officers required
Title: City Clerk for corporations under Corporations Code
Section 313, unless corporate documents
authorize only one person to sign this
Agreement on behalf of the Corporation.)
APPROVED AS TO FROM
By: ratt7l Oh 1,4 LG
Name: Rad( Richman
Title: City Attorney
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EXHIBIT A
Scope of Services
• The Monday night Certified Farmers Market shall be held in the Franchise Area on the
Rosemead Civic Center Plaza. This is the geographic area within the City that is bounded by
the south side of Valley Boulevard, between City Hall and the Library down to the vehicular
lane known as Steele Street that separates the Civic Center Plaza from the Rosemead
Community Recreation Center (RCRC) as depicted on Exhibit B
• The Monday Night Farmers Market shall occur each Monday beginning at 5:00 PM and ending
at 9:00 PM from June 5, 2017 through September 25, 2017. These times may be amended
only with the expressed written consent of the City.
• It is the City's expressed desire that the Monday night Certified Farmers Market should have
an appealing and visually attractive look and feel. Franchisee shall endeavor to fulfill this
desire by taking reasonable steps to maintain a festive yet professional visual aesthetic event.
More specifically, Franchisee shall endeavor to achieve the City's visual appearance and
aesthetic goals in the following areas:
• Pedestrian Thoroughfares. Franchisee shall maintain clear and clean
thoroughfares for pedestrian traffic, and ensure the thoroughfares comply with
Americans with Disabilities Act (ADA) access requirements at all times. It shall be
the duty and responsibility of the Franchisee to familiarize itself with the laws,
statutes ordinances and rules as they pertain to federal and state ADA access
requirements and ensure the enforcement thereof.
• Farmer's Market. Franchisee shall ensure that the Certified Farmer's Market area
is kept safe, clean and free from any obstructions or obstacles.
• Event Staff. Franchisee's employees and staff shall wear a uniform shirt, to be
provided by the Franchisee, during the Monday Night Farmers Market hours of
operation.
• Franchisee further agrees to the following Event provisions:
• Provide a family-centered and produce-centered Farmers Market where ideally a
minimum 25% of the vendors will be engaged in the sale of fruits, vegetables,
flowers, fish, baked goods, and quality, prepared foods to go. The remainder of
the market may accommodate a number of different users, and the Franchisee
commits to working to attract "artisan quality" craft good venders.
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• Give priority to any and all Rosemead businesses that may want to participate.
• Provide ongoing live entertainment at the event each week.
• Create and follow a written plan for reduced access closure and safety that is
acceptable to the City. The Franchisee shall develop and install traffic control
signage throughout the event that is deemed appropriate by the City.
• Timely set up each Monday Farmers Market so as to begin on time and timely
dissemble all booths and equipment immediately after the event so that normal
traffic is restored as soon as reasonably possible.
• Provide proof of acquiring all permits & licenses required by law.
• Maintain clean and safe conditions, and an attractive appearance, of all aspects of
the event including but not limited to ADA compliance, trash pick-up, and prompt
clean-up of spills onto concrete area of the Civic Center Plaza.
• Customer Service. Franchisee shall maintain a log of complaints and other matters
of concern that pertain to the Monday night Certified Farmers Market. The log
shall include the name of the complainant, a description of the complaint, how
Franchisee resolved the complaint, the date that Franchisee first became aware
of the complaint and the date of resolution. Franchisee shall endeavor to resolve
all complaints in a timely manner. Any complaint or matter of concern that, after
a reasonable effort by Franchisee, is not resolved shall be reported immediately
to the City.
• Equipment. Franchisee shall maintain all equipment used to coordinate the event
in a safe and clean manner, and in good operating condition and appearance.
Franchisee shall ensure all equipment specified or required by the Encroachment
Permit is properly installed and maintained.
• Trash Collection & Clean-up. Maintaining and promoting a clean, safe and
attractive environment is an important City objective. Consequently, Franchisee
shall make all necessary provisions for waste management and clean-up of all
areas directly impacted by the Farmers Market, Franchisee shall assign staff to
maintain a safe, clean and sanitary environment within the Franchise Area and
adjacent areas. At the completion of each Farmers Market event, Franchisee shall
ensure that the Franchise Area be left in a clean condition including power
washing or steam-cleaning of spills on concrete areas. Franchisee shall conduct
inspections to ensure compliance with this section.
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• Franchisee shall promote the Farmers Market to the public.
• Franchisee shall comply with all City ordinances and directives.
• Franchisee shall provide all necessary trash containers, trash clean up, refuse
disposal services, and a plan for cleaning up all affected parking lots and the steam
cleaning of affected concrete areas on a weekly basis.
• In accordance with the traffic control plan approved by the City, Franchisee shall
set up and remove street barricades for street closure and reopening.
• Franchisee shall provide an all-inclusive electrical service plan for the Farmers
Market.
• City must provide restroom access at least 200' from the Market, i.e., City Hall
restrooms, Rosemead Center, Port-a-Potty, etc.
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EXHIBIT B
Franchise Area
6.
Library ,...••
..r
r City Hall
..-,---- ,:.... . .., . t -- --ve ......_„
i . 41140 .
1.3141,A111:061,,/ // ,.. .. 40
,, --•,, . . , latall
.t.
rn
iii
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