June 25, 2014
Licence of Occupation for Ottawa Farmers’ Market at Lansdowne Park, Ottawa
This Licence of Occupation (“Licence”) is made as of the 9th day of July, 2014.
Between:
City of Ottawa (the “City”)
And
The Ottawa Farmers’ Market Association through its Board of Directors (the “OFM”)
Background
The City and the OFM entered into a Memorandum of Understanding dated November 18, 2010 that demonstrated the City’s commitment to have a farmers’ market as a permanent element of programming at a revitalized Lansdowne Park;
The City, the Ottawa Sports and Entertainment Group (“OSEG”) and OSEG’s members entered into a Lansdowne Redevelopment Plan Project Agreement dated October 12, 2012 for the redevelopment and revitalization of Lansdowne Park, a 37.5 acre City owned property bordering the Rideau Canal;
The City and the Lansdowne Stadium Limited Partnership (“LSLP”) entered into an Urban Park Programming Agreement also dated October 12, 2012 to establish the respective roles and responsibilities of the City and LSLP with regard to the scheduling of events occurring in certain facilities and areas of Lansdowne Park following the redevelopment which included the OFM having the first priority of use of the Aberdeen Square for an outdoor farmers’ market, subject to certain conditions;
The City and OFM desire to enter into this Licence to establish the respective roles and responsibilities of the City and OFM for an outdoor farmers’ market within the Urban Park of the redeveloped Lansdowne Park, which Urban Park among other amenities and facilities, includes the Aberdeen Pavilion, Aberdeen Square and the East Court; and,
The City and OFM recognize that some events will occur simultaneously from time to time and will require consultation and cooperation for the successful staging of events and delivery of programming.
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The parties for good and valuable consideration, the receipt and sufficiency of which are mutually acknowledged, hereby agree as follows:
Purpose of Licence of Occupation
1. This Licence grants the Ottawa Farmers’ Market (OFM) a non-exclusive licence throughout the Term to program an outdoor farmers’ market, up to 7 days a week, on Aberdeen Square based on the approved design for Stand Plans (Appendix 1) and an indoor farmers’ market in the Aberdeen Pavilion, on weekends from November through April, subject to the Indoor Market Season and Outdoor Market Season Calendar (the “Calendar”) to be approved in March annually and the terms and conditions of this Licence.
2. The review of the Calendar will recognize the programming demands for the use of this important public space and the goal of the Lansdowne Redevelopment Plan being a multi-facetted sports, retail, office, residential and recreational and cultural complex with events occurring simultaneously. Every reasonable effort will be made to accommodate the outdoor farmers’ market on Aberdeen Square. In particular, it is recognized that Sunday is the most important market day for the OFM and as such the market will be accommodated, from May to November inclusive, with operational conditions negotiated based on the size and timing of the other large event(s) occurring simultaneously on a particular Sunday. Further, there may be days periodically and seasonally, and regardless of whether the Calendar has already been approved, where priority for the staging of events and the delivery of programming may be retained by the City and/or given to OSEG and/or LSLP, as well as, events that are of municipal, provincial and federal significance and the Market will be unable to operate. As much advance notice as possible will be provided to the OFM of such events and programming and every reasonable effort will be made to accommodate the outdoor farmers’ market on Aberdeen Square. No compensation will be paid by the City to OFM should the Market be unable to operate or be required to close early in the circumstances outlined above.
Definitions
Indoor Market – means the portions of the Aberdeen Pavilion that the City has approved for use by the OFM for farmers’ market purposes
Outdoor Market – means the areas of Urban Park that have been identified in the approved design for Stand Plans (Appendix 1) for farmers’ market purposes
Indoor Market Season – means the weekend day(s) the OFM operates inside the Aberdeen Pavilion during the period of time from November 1st of one year to April 30th of the following year
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Outdoor Market Season - means the days the OFM operates the Outdoor Market during the period of time from May 1st to November 30th each year
Stand Plans – means the approved designs (Appendix 1) for the layout of the Outdoor Market that accommodate between 26 and 162 stands
Term
3. The first term of this Licence is for 16 months, from November 1, 2014 to February 29, 2016 with an option to renew for three five year terms subject to the parties agreeing to mutually satisfactory terms and conditions for the renewal on or before February 29, 2016 for the first 5 year renewal term: on or before February 28, 2021 for the second renewal term and on or before February 28, 2026 for the third renewal term.
Governance & Communication
4. The Farmers’ Market at Lansdowne Park will be managed by the Board of Directors elected by members of the Ottawa Farmers’ Market Association. The Chair of the OFM Board of Directors and the City’s General Manager (GM) of Parks, Recreation & Cultural Services shall be the primary contacts for any notice required by any provision of this Licence or any dispute on the interpretation of any provision. Such notices shall be given by e-mail, in person or by mail delivery. Each party will ensure that their contact names and co-ordinates are kept current. Contact information is contained in Appendix 3.
5. The OFM Board will identify and keep current the name and contact information for the Markets Manager who will be the primary and emergency contact for issues related to the operation of the Market. And the City will identify and keep current the name and contact information of the staff person who will be the primary and emergency contact for operational issues.
Annual Report & Approval of Outdoor and Indoor Market Season Calendar
6. The OFM will provide an annual report on the Ottawa Farmers’ Market at Lansdowne Park detailing its operations. The report will include: a list of vendors; a summary of stand usage (actual vs. projected) for the outdoor and indoor markets; a reconciliation of any costs owing to either party based on the Licence; confirmation that the Vendor Mix (Appendix 2) has been met; and provide the proposed Outdoor and Indoor Market Season Calendar for the following year. The report will cover the calendar year and shall be filed before the end of February the following year.
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7. The City will review the annual report and address any concerns, pay or receive any outstanding costs and approve, if satisfactory, the Outdoor and Indoor Market Season Calendar by end of March each year during the term of this Licence.
8. The OFM Board will supply an updated copy of their By-laws to the City and the By-laws will not materially conflict with or contradict the terms of this Licence in any way.
Description of the Market
Vendor Mix & complementary activities
9. The Ottawa Farmers’ Market Board of Directors will be responsible for ensuring that the Council-approved Vendor Mix (Appendix 2) is adhered to in support of local farmers and producers during the Outdoor Market Season. The Vendor Mix will not apply to the Christmas Market. And for the Indoor Market Season the minimum percentage of stalls for Verified Local Farmers will be 50%; refreshment providers using local products will occupy a maximum of 10% of stalls and the balance will be composed of producers of baked and value added goods which contain locally produced ingredients and local juried art and craft.
10. The OFM may undertake complementary small scale non-commercial activities to promote the Market and local food including: cooking demonstrations, food sampling, and other local food activities with prior approval for the activity and location from the City’s Operational Contact identified in Appendix 3.
Location & Stand Plans
11. The Outdoor Market will be located on Aberdeen Square in accordance with the approved design of the Stand Plans (Appendix 1) that accommodate between 26 and 162 stands which measure 3 metres by 6 metres (10’ X 20’). The OFM is to verify the as-built site conditions prior to ordering or installing stands. The Market may begin with up to 26 semi-permanent stands installed on Aberdeen Square at OFM’s sole cost and liability. Additional semi-permanent stands may be installed with the approval of the City. Semi-permanent stands may be installed with the commencement of the Outdoor Market Season (May 1st annually) and removed on or before November 15th annually considering snow load. All stands are to be constructed and/or erected at the sole cost of the OFM or each vendor and not the City. No one vendor is to be assigned more than 3 stands on a seasonal basis. Subject to obtaining the prior written consent of the City upon reasonable advance written notice to it, the OFM may use a portion of the East Court, or all of it, if all available stands on Aberdeen Square are being
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utilized by the OFM. In the event that Aberdeen Square will not, or is not, being used to capacity the City reserves the right to itself to program or use the available space providing the City ensures its programming or use will not interfere or conflict with the operation of the Outdoor Market by the OFM. For example, a flea market would not be a compatible use of the Outdoor Market when the market is in operation; however, it could be programmed on a day when the Outdoor Market is not in operation.
12. The Indoor Market will be accommodated in the Aberdeen Pavilion based on other and shared use of the building primarily on weekends during the Indoor Market Season (November 1st to April 30th annually and may be used at other times based on availability.
Days and Hours of Operation
13. The OFM will have access to Aberdeen Square to program an outdoor farmers’ market in accordance with the approved design for Stand Plans (Appendix 1) and annual Indoor and Outdoor Market Season Calendar containing proposed days, hours and number of stands that it submits by the end of February and receives approval from the City by the end of March annually. A proposed Indoor Market Season Calendar for Christmas 2014 and Winter 2015 and an Outdoor Market Season Calendar for 2015 is set out below. The OFM will confirm the Outdoor Market Season and Indoor Fall Calendar by the end of February 2015 and the City, through its GM, Parks, Recreation &Cultural Services, will consider and, if satisfactory, approve it by the end of March 2015. Despite this approval, the City shall have the right to pre-empt with notice and without compensation the use by the OFM of the approved days in order to schedule, program or accommodate events or programming of a municipal, provincial or national significance or importance, as well as, for OSEG and/or LSLP events. Every reasonable effort will be made to accommodate the outdoor farmers’ market on Aberdeen Square. Should the OFM not occupy or use the Aberdeen Pavilion during the Indoor Market Season for four (4) consecutive weekends then it shall forfeit those weekends for the next year’s Indoor Market Season Calendar.
Proposed Outdoor Market Season Calendar for 2015
Days Months Market Hours* Number of Stalls (3m x 6m) Wednesday May - Nov 11am - 6pm 30 25-50 (May-June) Friday May - Nov 11am - 6pm 70-80 75-100 (May-July) Sunday May - Nov 8am - 3pm 150 (Aug-Oct)
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Proposed Indoor Market Season Calendar for 2014 & January – April 2015
Days Days/Months Market Hours* Number of Stalls (3m x 6m)
Nov 29/30 Saturday & Sunday 9am - 3pm Full use of Aberdeen Pavilion Dec 6/7 & 13/14 Christmas Market Sunday January– April 2015 10am - 3pm 40 (Jan-April)
* Open hours for public – set-up and takedown during the 90 minutes on either side of these times
Fees & Payments to the City for Use of Space, Infrastructure & day-to-day operations
Outdoor Market – Aberdeen Square
14. The OFM will determine the fee schedule for vendors and pay the City $10.00 net per stand per day the stand is occupied for the first term and first 5-year renewal term of the agreement. This fee formula acknowledges the City’s commitment to a producer based farmers’ market selling local products and the non-exclusive and shared use of the space. A payment schedule will be developed annually based on the approved Outdoor Market Season Calendar and the OFM will provide monthly post-dated cheques based on that Calendar. The OFM and City will monitor and confirm use weekly and based on the final Annual Report the use and payments will be confirmed and reconciled.
Infrastructure Services and Recovery of Costs
15. Based on the 2010 Memorandum of Understanding between the City and the OFM the infrastructure shown on the approved design for Stand Plans (Appendix 1) is to be installed at the expense of the OFM and the OFM is to pay for utility usage plus applicable taxes (HST): Electricity: 70 – 15 amp plugs Water: 2 fresh water connections with standpipes and faucets 3 concealed fresh water connections Grey Water: 2 grey water/sanitary sewer services
16. The estimated cost for the installation of the above services was established at $82,000.00 plus applicable taxes (HST) which is to be repaid to the City in 5 equal payments of $16,400 plus applicable taxes (HST) each on May 1st of 2015 - 2019 (Appendix 4) with the balance owing, if any, to become immediately due and payable upon any termination or non-renewal.
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17. Meters have been installed to measure the electrical and water consumption related directly to the Market and those charges will be passed on to the OFM.
18. Garbage and recycling removal will be the responsibility of the OFM.
Indoor Market
19. The OFM will determine the fee schedule for vendors. The payment to the City for the use of the Aberdeen Pavilion, acknowledges the City’s commitment to a producer based farmers’ market selling local products and the non-exclusive and shared use of the facility, shall, among other factors, be based on the City recovering all direct operating costs including: heating, security to open and close and oversee building and washroom safety, washroom usage/cleaning costs and any building cleaning costs and as determined or directed by City Council. For exclusive, non-shared use of the Aberdeen Pavilion the regular rental rates (i.e. $3,300. + HST per day for non-profit use in 2014) shall apply. Vendor electricity requirements are to be managed separately.
General Operations
Washrooms
20. Controlled access to washrooms will be provided for vendors 90 minutes before and after the Market Hours identified in the Outdoor and Indoor Market Season Calendar. Public access to washrooms will be provided during Market Hours.
Site Cleaning
21. The City will be responsible to ensure that Aberdeen Square will be clean and free of clutter, debris, equipment and vehicles when vendors arrive to set up and similarly, the OFM will clean the area and ensure that it is free of clutter and debris at the end of each day, prior to departing.
Access and Parking
22. OFM vehicles shall have vehicular access to Aberdeen Square to set up and take down stands for up to 90 minutes before and after Market hours; however, motorized vehicles cannot be part of the stand nor can they remain on site. The OFM will pursue and secure off-site vendor parking with the help of the City.
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23. The below grade parking will be available for use by customers and others in accordance with any rate structure determined by the Ottawa Sports and Entertainment Group (OSEG). The OFM will work with OSEG to institute a parking voucher system for Market patrons.
Damages, Indemnification and Insurance
24. In the event that damage of any kind is caused to the buildings or grounds at Lansdowne Park by the OFM or one of its vendors, as a result of the occupation of the Outdoor Market and Indoor Market under this Licence, the OFM or the vendor that caused the damage shall repair the damage in a timely fashion at their own expense.
25. The OFM shall indemnify and save harmless the City, its employees and agents from any and all claims, demands, causes of action, loss, costs or damages that the City may suffer, incur or be liable for, resulting from the OFM or it employees, directors, contractors, operators, agents or volunteers of acts or obligations under this Licence and the occupation of the Outdoor Market and Indoor Market.
26. The OFM shall, at its sole cost and expense, obtain and maintain in full force and effect at all times throughout the term of the Licence (and any extensions thereof), Commercial General Liability Insurance issued on an occurrence basis for an amount of not less than $5 million per occurrence and annual aggregate for any negligent acts or omissions by the OFM relating to their obligations under the Licence. Such insurance shall include but is not limited to bodily injury and property damage including loss of use; personal and advertising injury; contractual liability; premises, property and operations; non-owned automobile; broad form property damage; owners & contractors protective; occurrence property damage; products & completed operations; employees as additional insured; contingent employers liability; cross liability and severability of interest clause; and tenants legal liability.
(a) Such insurance shall add the City of Ottawa, their elected officials, agents, officers and employees as an additional insured with respect to the operations of the OFM. This insurance shall be non-contributing with and apply as primary and not as excess of any insurance available to the City of Ottawa.
(b) The OFM shall indemnify and hold the City of Ottawa; their elected officials, agents, officers and employees harmless from and against any liability, loss, claims, demands, costs and expenses, including reasonable legal fees, occasioned wholly or in part by any negligence or acts or omissions whether
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willful or otherwise by the OFM, its agents, officers, employees or other persons for whom the OFM is legally responsible.
(c) The OFM shall ensure its Market Vendors obtain and maintain insurance coverage equivalent to that of the OFM except subject to liability limits of not less than $2 million per occurrence and annual aggregate and shall name the OFM and the City of Ottawa as an additional insured. Evidence of such insurance shall be on file with the OFM. Obligations
27. The parties intend that this Licence be binding but it is further understood that either party, if not satisfied with the outcome, may terminate this Licence for convenience upon first giving 12 months advance written notice to the other.
Assignment
28. This Licence cannot be transferred or assigned to a third party without the expressed written consent of the other.
Appendices
29. The Appendices to this Licence are an integral part of it.
Amendments
30. Any amendments to this Licence shall be made in writing and shall require the mutual consent of the City and the OFM.
Dispute Resolution
31. Each of the City and OFM through their respective representatives shall work cooperatively to try and resolve all disputes that may arise in relation to this Licence. The parties may appoint senior representatives to discuss a compromise solution which is acceptable to both parties. In the event that the senior representatives are unable to resolve the dispute or are unable to agree upon any matter upon which they are required to agree then either party may bring such dispute or inability to agree to closed mediation before proceeding to a Court of competent jurisdiction for resolution.
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IN WITNESS THEREOF, the authorized representatives of the parties have executed this Licence as of the dated mentioned above.
The Ottawa Farmers’ Market Association through its Board of Directors
Name: Andy Terauds Title: President of the Ottawa Farmers’ Market Association
Date:
City of Ottawa
Name: Dan Chenier Title: GM, Parks, Recreation and Cultural Services
Date:
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Appendix 1: Stand Plans*
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* Note that the various sketches highlight various possible configurations of market stands within Aberdeen Square, however, the legal boundaries for the Urban Park within which Aberdeen Square is located is Parts 1, 2 and 4 on Plan 4R-26535
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Appendix 2: Vendor Mix* and Savour Ottawa Criteria
1. Council-approve Vendor Mix: A minimum of 70% of the stalls be local farmers verified through Savour Ottawa A maximum of 15% of the stalls be producers of baked and value added goods which contain locally produced ingredients A maximum of 10% of the stalls be local, juried arts and crafts A maximum of 5% of the stalls be refreshment providers that use local products, meeting the same ‘local’ criteria established by Savour Ottawa for restaurants
2. Verified Local Farmer and Local Producer Standards
Savour Ottawa’s ‘buy local region’ includes the City of Ottawa, its neighbouring counties and the Outaouais. This includes the counties of Prescott Russell; Stormont, Dundas & Glengarry; Leeds & Grenville; Lanark; Renfrew; and Frontenac; and the Outaouais.
A Verified Local Farmer:
1. Establishes that they are a farmer and actively engaged in farming by providing: a farm business registration number (farm sales over $7K) a tax bill or rental agreement(s) for land base a list of crops farm bills that demonstrate the farm is growing the variety and volume of items listed – seeds, fuel, repairs, utilities etc. and participates in farm visit to confirm the above
Or provides proof of certification from one of the following: Centre for Systems Integration (CSI) Eco-Cert Canada Demeter Canada Organic Crop Producers & Processors Inc. (OCPP) Organic Crop Improvement Association Canada (OCIA) Quality Assurance International Inc. (QAI) Quality Management Institute (QMI)
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2. Sells:
Primary Products fresh or unprocessed fruit, vegetables, cut flowers, plants, nuts, mushrooms, sprouts, grains, legumes, herbs and shell eggs pure honey (farmer is registered beekeeper) and pure maple syrup fresh, frozen or dried meat, poultry and fish Christmas trees and boughs (from the farmer’s property) horticulture and floriculture products On-farm Value-added and Ready-to-eat Product(s) in which the defining ingredient(s) is grown and/or produced and processed on the farm by the farmer in accordance with government regulations and inspections Off-farm Value-added and Ready-to-eat Product(s) in which the 1st ingredient on the label or a minimum of 51% of the product by weight, measured prior to processing, is grown and/or produced by the farmer (confirmed by the recipe and processor receipts) in accordance with government regulations and inspections
* The Vendor Mix will not apply to the Christmas Market
For the Indoor Market Season: - the minimum percentage of stalls for Verified Local Farmers will be 50% - refreshment providers using local products will occupy a maximum of 10% of stalls - the balance will be composed of producers of baked and value added goods which contain locally produced ingredients and local juried art and craft
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Appendix 3: Contacts
Ottawa Farmers’ Market Contacts:
Relative to agreement: Operational Contact:
Andy Terauds, Linda Cook Chair of OFM Board OFM General Manager 928 Oak Creek Rd. P.O. Box 414 Carp, ON Greely, Ontario K4P 1N6
613-836-2613 613 821-2770 613 986-2770
[email protected] [email protected]
City of Ottawa Contacts:
Relative to agreement: Operational Contact:
Dan Chenier, Delores MacAdam General Manager of Parks, Manager Events Central Recreation & Culture Services, Recreation & Culture Services, 100 Constellation Drive, 8th Floor, 101 Centrepointe Dr. Ottawa On K2G 6J8 Ottawa On K2G 5K7
[email protected] [email protected]
613-580-2424 ext. 24295 613-580-2424 ext. 41279
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Appendix 4: Licence of Occupation Timeline and Deliverable Summary
Item or deliverable Date(s) or Deadline
Term of agreement November 1, 2014 to February 29, 2016
Deadline to have 5 year renewals February 29, 2016 negotiated and approved February 28, 2021 February 28, 2026
OFM submission of Annual Report (Section February 28th annually 6) including proposed Annual Indoor Market Season and Outdoor Market Season Calendar
City approval of annual report, annual March 31st annually calendar & receive or pay any costs
OFM repayment of utility infrastructure May 1, 2015, May 1, 2016 costs - 5 equal payments of $16,400 plus May 1, 2017, May 1, 2018 applicable taxes (HST) with the balance May 1, 2019 owing, if any, to become immediately due and payable upon any termination or non- renewal OFM submission of post-dated cheques for May 1 annually payment to City based on projections in approved calendar
Provide name & contact information of the ASAP after the contacts change staff person who will be the primary and emergency contact for operational issues
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