STUDY STUDY SESSION MEMORANDUM 3.1

TO: Mayor and Town Council August 10, 2021

SUBJECT: Discuss Possible Addition of Beer and Wine Vendors to Farmers Market BACKGROUND The Pacific Coast Farmers Market (the “Market”) has operated at the Railroad Avenue Parking Lot since 1990. Operation of the Market, including the type and number of permitted vendors, is controlled by the terms of an Encroachment Permit/Right of Entry (the “Permit”) issued by the Town. The current Permit runs through May of 2022. At the Town Council’s Study Session of July 13, 2021, the Council directed staff to bring back a discussion of adding additional types of vendors to the permitted list. Specifically, the Council asked for information about potentially adding wine and/or beer vendors to the market. This report provides information regarding the legal standards for adding such vendors. DISCUSSION The California Department of Alcoholic Beverage Control (“ABC”) has two different licenses allowing for the sale of wine or beer at certified farmer’s markets, which contain the following provisions:

• License Type 79 allows an already licensed winegrower to sell “wine produced and bottled by the winegrower entirely from grapes grown by the winegrower….”

• License Type 84 allows a Beer Manufacturer or Small Beer Manufacturer to sell “sealed containers of beer for off-site consumption….”

Both of these licenses also allow the vendor to provide “instructional tasting” at a Farmers Market. For wine, the limit is 3 ounces per individual per day, for beer the limit is 8 ounces. In both cases, the tasting must occur within a roped off area. In addition to the ABC requirements, the Town’s ordinance regulating consumption of alcohol in a public place would require the Council to approve the tastings as part of any amendment to the Permit. Town staff has reached out to the operators of the Market to seek their opinion on adding these types of vendors and will pass along any feedback. We do know that of the

Farmers Market Vendors 2 August 10, 2021

approximately 40 markets operated by Pacific Coast Farmers Market, at this point only 3 allow beer or wine vendors. RECOMMENDATION Provide direction to Town staff regarding any desired changes to the existing Encroachment Permit to allow for beer or wine vendors to be permitted at the Market. Prepared by:

Robert B. Ewing City Attorney Attachment: Farmers Market Encroachment Permit

2019

ENCROACHMENT PERMIT/RIGHT OF ENTRY

This Amended Encroachment Permit/ Right of Entry (" Encroachment Permit") is made

and entered into as of April 3, 1990, and amended on May 1, 1993, December 6, 1994, February 21, 1995, April 20, 2004, May 16, 2006, March 2, 2010, March 31, 2013, April 12,

2016, and May X 2019 by and between the TOWN OF DANVILLE ( hereinafter theTown"), a California municipal governmental corporation and the PACIFIC COAST

FARMERS' MARKET ASSOCIATION (hereinafter the " Association"), a California non-

profit mutual benefit corporation.

RECITALS

1. The Association exists for the purpose of developing, organizing, operating andmanaging " Certified Farmers' Markets" ( as such term is defined in Section 27512

of the California Health and Safety Code/ Article 6.5, Title 3 of the CaliforniaAdministrative Code).

2. The Association desires to develop, organize, operate, maintain and manage aCertified Farmers' Markets in the Town, on property owned and maintained bythe Town for the benefit of and use by members of the general public.

3. Town desires to permit such use by the Association, provided that the publichealth, safety and welfare are not thereby impinged, diminished or adverselyaffected.

4. This Encroachment Permit is granted by the Town and accepted by the Associationupon each and all of the conditions set forth herein, and by accepting the benefitshereof the Association agrees to fully perform and observe such conditions.

PERMIT/RIGHT OF ENTRY

1. Permission is hereby granted for a period of three ( 3) years to the Association, subject to paragraphs 8 and 9 below, to enter and use a portion of the municipal

parking lot located on the west side of Railroad Avenue as is located west of theSouthern Pacific Railroad Depot at the north end of the Railroad Avenue

Municipal Parking Lot, (hereinafter the " permitted area"), between the hours of

7:00 a.m. and 2:00 p.m., every Saturday, during the duration of the

Permit/ Agreement (see Exhibit 2 for "permitted area").

2. Nothing in this Agreement precludes a Town event or other exhibition that mightbe scheduled in the downtown area during the hours of operation of theAssociation. The Association will be notified as soon as possible of any road

2019 Encroachment Permit

closures in the downtown or road closures that might affect the Associations

vendors. A suggested detour map, if needed, will be printed in the local

newspapers the week before the Town event. In the event of a severe conflict of

interest, either the Association or the Town has the right to cancel a Saturday. morning market with a 45 -day advance notice.

3. The use for which such Encroachment Permit is granted is the development,

organization, operation, maintenance and management of a Certified Farmers'

Market in accordance with and pursuant to all applicable laws and regulations of

the State of California, and for no other use or uses whatsoever.

4. The Association shall at all times observe and obey all applicable ordinances, resolutions, rules and regulations of the Town, and shall promptly obey each andall lawful orders given to it by the Town Manager or his/ her named designee, anyofficers of the Danville Police Department for public safety purposes, or by anyemployee of the San Ramon Valley Fire Protection District or the Contra CostaCounty Health Department.

5. The Association shall, at all times during which this Permit remains valid and ineffect, take out and maintain in full force and effect a policy or policies of publicliability insurance for the death or injury of any person or persons resulting fromor incidental to the use permitted hereby, in the amount of ONE MILLIONDOLLARS ($1, 000,000). The Town, its members, officers, agents and employees

shall be named as an additional insured under such policy or policies. The

Association shall, prior to the initiation of the use, permitted hereby, supply theTown with certified copies of such insurance policy or policies, or an acceptablecertificate thereof, which policy, policies or certificate shall provide that the insurershall give the Town thirty.(30) days advance written notice prior to its cancellationof such policy or policies.

6. The Association agrees to indemnify, defend and hold the Town harmless fromand against any and all claims, actions, causes of action or liability of any kind ornature whatsoever, for damages arising out of any injury to or death of any personor persons, or property of any kind and to whosoever it may belong, including theTown, on account of willful misconduct or negligent conduct on the part of

vendors onother persons compensated by the Association at the Farmers' Markets.

7. The Association shall keep and maintain the permitted area free and clear of anyand all trash, refuse, garbage, debris or litter arising from or incidental to its use ofthe property as permitted hereby. The Association shall not commit, suffer to

permit any waste on the permitted area.

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2019 Encroachment Permit

8. The location of this Encroachment Permit may be changed by the Town if deemedappropriate. The Association will be given no less than ninety (90) days advancewritten notice of the proposed change to a location approved by both parties. Distribution of any notice of change of location is the sole responsibility of theAssociation. The Town shall not be liable to the Association for any costs, expenses, fees, losses or damage of any kind or nature whatsoever on account ofits exercise of the right reserved in this paragraph.

9. This Encroachment Permit may not be revoked except upon 45 days' advancewritten notice to the Association and in such event the Association shall have the

full right to complete and prepare an appeal of the revocation to the Town Council

and that pending completion of such appeal, the Encroachment Permit shallremain valid and enforceable.

10. This Encroachment Permit may not be transferred or assigned to any other entitywithout the prior written consent of the Town.

11. No property right is granted hereby; notwithstanding the foregoing, the

Association hereby knowingly waives and relinquishes any rights it may have orclaim to have pursuant to California Government Code, Sections .7260 through

7277.

12. In accordance with Ordinance 96-10, alcohol sales and consumption are prohibited

within Town public right-of-way (streets, sidewalks, parking lots, etc.).

13. Wherever the term " Pacific Coast Farmers' Market Association' is used herein,

such term shall mean, be interpreted and include the Association its members and

officers.

14., An " Operating Agreement" is attached hereto, marked. Exhibit 1, and

incorporated in full by this reference. Whenever a conflict arises between the

terms of Exhibit 1 and this Encroachment Permit, the terms of this Encroachment

Permit shall prevail.

15. Notices required hereby shall be deemed to have been fully given when servedpersonally on the Association or the Town or when deposited in the United Statesmail, postage paid addressed as follows:

To the Town: Town of Danville

Attention: Economic Development Manager

510 La Gonda WayDanville, CA 94526

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2019 Encroachment Permit

To the Association: Pacific Coast Farmers' Market Association

5060 Commercial Circle, Suite #A

Concord, CA 94520

Demonstrating our agreement with these provisions, we sign this document.

TOWN OF DANVILLE

31Jo e H A.-Calabrigo

T n Manager

Dated: G

PACIFIC COAST FARMERS'

MARKET ASSOCIATION

By: 1o. -- 4 2, Allen oyExecutive Director,

Dated: 45 lZ l2 -"S e g

2019

OPERATING AGREEMENT

DANVILLE CERTIFIED FARMERS' MARKET

The Pacific Coast Farmers' Market Association (PCFMA) agrees to operate the DanvilleCertified Farmers' Market (CFM) in Danville, California.

BACKGROUND

The Town of Danville is located in the heart of the San Ramon Valley. Danville featuresa downtown shopping district offering customers an array of retail shops andrestaurants. To further enhance the community, Danville has hosted a Farmers' Marketonce each week since 1990, where local growers bring their farm -fresh produce into town. Shoppers enjoy purchasing vine/ tree ripened fruit and vegetables, talking with thegrowers, meeting their neighbors, tasting heirloom and specialty varieties and pickingup a new recipe.

Pacific Coast Farmers' Market Association

The Association, a non-profit, mutual benefit corporation dedicated to " Bringing theFarm -to -the -City," operates other Certified Farmers' Markets in the San Francisco BayArea. With a grower organization of over 200 farms throughout California, PCFMA is

able to integrate Certified Farmers' Markets into city and regional centers and retailshopping districts. This exciting concept in food shopping gives consumers theopportunity to shop for fresh fruit and vegetables while visiting the Downtown.

Certified Farmers' Markets

In 1979, the California Department of Food and Agriculture developed a program to

authorize and encourage direct marketing of farm products to consumers throughFarmers' Markets, U -Pick, Roadside stands, etc. The Food and Agricultural Code was

amended to regulate the operation of CFM's. Under these regulations, county

agricultural commissioners verify that growers sell only the products they grow. No oneis allowed to buy products and resell them at CFMs. Only California -grown productsmay be sold. A grower with a certificate from any county in California may sell at anyCFM in the state provided there is space to accommodate them.

Exhibit 1

2019 Operating Agreement

GENERAL PLAN

The Town of Danville agrees to sponsor a Certified Farmers' Market in Danville. The

Pacific Coast Farmers' Market Association will continue to operate a Certified Farmers'

Market according to this General Plan:

1. Market Development

A. Site Plan and Development

1. The market space is located west of the Southern Pacific Railroad Depot at

the north end of the Railroad Avenue Municipal parking lot (see Exhibit 2map).

2. An analysis of traffic flow and parking accessibility and availability foroptimal Certified Farmers' Market operation while creating visits toDanville' s " Old Town' will continue to occur by the PCFMA and Town ofDanville, with adjustments made as necessary.

3. Organization Structure and Management

4. Pacific Coast Farmers' Market Association Board Members.

5. Implement action plan that will mutually benefit the Town of Danville andthe Certified Farmers' Market.

6. Employ Certified Farmers' Market Manager. 7. Modify rules and regulations for the market with reservation and seniority

policy.

B. Grower Recruitment and Coordination

1. Inform association members and recruit growers to yield number of growers

per market day that will provide a variety of quality agricultural products. Recruit local fishermen to sell their " catch -of -the -day" directly to consumers.

2. Operations and Management

A. Train and supervise management of the Certified Farmers' Market.

B. Enforce state and local agricultural and health regulations. Serve as on-goingliaison with county agricultural commissioner.

C. Assure adherence to market rules and regulations, product quality, set-upprocedure and clean up. Perform and monitor site clean-up. Obtain feedbackfrom property management to assure adherence to the Town of Danville' sguidelines.

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2019 Operating Agreement

D. Market Day Systems: signage, information booth, Merchant at the Market booth, Town Council booth, customer relations, and grower coordination.

E. Secure insurance: Provide copies of insurance policy to the Town of Danvilleeach year.

F. Non -Agricultural and Crafts Vendors Restrictions:

1. The Farmers' Market non-agricultural sellers will not exceed on average 25%

of all vendors, except during the months of October through April, thepercentage may be increased from 25% to 35% during, provided the

additional 10% increase consists of Danville based non-agricultural vendors.

2. Market categories are as follows:

3. All products sold at the Farmers' Market must be produced by the producer. Buying and reselling of product is not permitted. Non- agricultural productsare juried by the Pacific Coast Farmers' Market Association' s Board of

Directors on a yearly basis.

4. Craft vendors and artists do not fit into the product categories, and, therefore,

are not permitted at the Danville Farmers' Market, except for ancillary artisanreusable products as listed above.

5. The weekly market report will state the number of non- agricultural vendors, merchant booth, and attendance information.

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Ancillary ArtisanAgricultural Non- Agricultural Reusable Green

Products Market Products

Fruits Bakery/ Confectioner Market Tote Bags

Nuts/ Nut Butter Products Baskets

Vegetables Organic Meat/ Sausage

Nursery Stock Specialty DrinksCut Flowers Coffee/ Tea/ Water

Eggs Granola/ Baked Goods Services

Market Information BoothHoney Pasta/ Sauces

Farm Raised Fish Prepackaged Foods Town Council Booth

Oils/ Olives Prepared Food Merchant Booth

Pesto/ Jams/ Jellies Musical Entertainment

Beans Knife Sharpening

Cheese/ Dairy/ ButterOcean Fish and Shellfish

3. All products sold at the Farmers' Market must be produced by the producer. Buying and reselling of product is not permitted. Non- agricultural products

are juried by the Pacific Coast Farmers' Market Association' s Board of

Directors on a yearly basis.

4. Craft vendors and artists do not fit into the product categories, and, therefore,

are not permitted at the Danville Farmers' Market, except for ancillary artisanreusable products as listed above.

5. The weekly market report will state the number of non- agricultural vendors, merchant booth, and attendance information.

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2019 Operating Agreement

G. Merchant at the Market Program & Government Organizations:

Guidelines for the Merchant at the Market Program are as follozi7s:

1. The business must be located in Danville;

2. The business must possess a valid Town business license;

3. Goods or services provided must be non-agricultural;

4. Businesses can only sell what they sell in their store;

5. No alcohol is permitted;

6. Vendors selling food items shall obtain all necessary health permits andabide by all health department regulations;

7. Liability waiver and proof of insurance must be provided by merchant orsponsoring merchants' group;

8. The booth shall be located in the non-agricultural section of the market;

9. PCFMA shall provide one table and table cloth for the Merchant at the

Market Program; The Merchant shall provide a 10 x 10 canopy shadestructure if desired.

10. The booth shall be identified as the " Merchant at the Market" booth, with a

poster explaining what the program is about and which business(es) is/ arefeatured;

11. Preference for use of the booth shall be given to organized business groups

such as the Danville Area Chamber of Commerce and Danville based

businesses). The Danville Area Chamber of Commerce will manage the

schedule; which will be rotated each week by participating groups;

12. The overall program shall be managed by the PCFMA;

13. If the booth has not been reserved by the organization holding the time slotfor that week by the Wednesday prior to the Saturday market, then the boothcan be reserved on a first come/ first serve basis by one of the other businessorganizations or a Danville based business;

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2019 Operating Agreement

Guidelines for the Government Organizations are as follows:

1. The organization must be a local or regional government agency thatprovides service to all residents of Danville, and/ or Contra Costa Countyresidents.

2. The program and resources offered must benefit all residents and

community members.

3. The government organization must be a nonpartisan government agencythat is not aligned, affiliated influenced or supporting any one politicalparty.

4. The participating organization shall be located in the " Merchant at the

Market" booth space only if the booth is not filled by a Danville Merchantas defined above or if permission to share the booth has been granted bythe Merchant using the booth that week.

Town of Danville Toum Council Outreach

1. The market organizer shall provide a table for the Town Council to be

located inside the information booth weekly at a designated locationselected by the Town of Danville. The Information booth shall remain in

this same location each week.

H. Day and Hours of the Market

1. The Market shall operate between the hours of 9:00 a.m. and 1: 00 p.m. everySaturday.

2. Market vendors shall not set up prior to 7:00 a.m.

3. The PCFMA shall be responsible for maintaining the cleanliness within themarket limits after each event and shall be responsible for removing orrecycling trash which resulted from market activity.

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2019 Operating Agreement

3. Promotion

A. The PCFMA shall strive to develop programs that engage Danville retail andrestaurant businesses through cross promotion or direct participation.

B. The CFM Regional Manager shall meet with the Town of Danville at the end of

each year to identify opportunities where Market promotions, Town

promotions/ programs can be integrated in the marketing plan and operation ofthe market.

C. A marketing plan, which includes promotion, publicity and community

outreach, shall be prepared by the PCFMA and sent to the Town of Danville priorto March 1 of each year.

4. Communication

A. A representative of the Town of Danville will serve as on-going liaison with theDanville CFM. Once each month, the Town representative, if desired, may meetwith the CFM Market Manager and/ or a Director of PCFMA to determine the

progress of the development and operation of the Danville CFM. The CFM

Regional Manager shall notify the Town two weeks prior to appointing a newMarket Manager to the Danville CFM, or of any operational changes that mayaffect the terms of this agreement.

B. Market reports on the Danville CFM will be sent to the representative of the

Town of Danville on a weekly basis. The report will describe the progress of theCFM including operation, marketing, promotion, management and attendance. A .copy of the PCFMA annual report will be sent to the representative of theTown of Danville prior to March 1 of each year.

C. The PCFMA may be asked to provide the Town Council with a yearly update ata regularly scheduled Town Council Meeting.

D. The representative of the Town of Danville, if desired, may attend the meetingof the PCFMA Board of Directors once each quarter.

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Danville Farmers' Market

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