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HomeMy WebLinkAboutCC Resolution 15469 (Establishment of Mobile Food Vending Program and Revised Ordinance)RESOLUTION NO. 15469 RESOLUTION OF THE SAN RAFAEL CITY COUNCIL AUTHORIZING THE CITY MANAGER TO ENTER INTO AN INTERLOCAL ENFORCEMENT MEMORANDUM OF UNDERSTANDING WITH THE COUNTY OF MARIN WHEREAS the City of San Rafael (City) seeks to more effectively regulate mobile vending in the City to protect public health and safety; and WHEREAS, “enforcement officers” have authority to enforce provisions of the California Retail Food Code (See, e.g., Article 2 of Chapter 13 of Part 7 of Division 104 of the Health and Safety Code); and WHEREAS, Health and Safety Code section 113774 defines “enforcement officer” as “the director, agents, or environmental health specialists appointed by the State Public Health Officer, and all local health officers, directors of environmental health, and their duly authorized registered environmental health specialists and environmental health specialist trainees;” and WHEREAS, the City has not appointed a health officer pursuant to Health and Safety Code section 101460; and WHEREAS, the City has made arrangements for the County health officer and his/her/their deputies to exercise the same powers and duties in the City as are conferred upon City health officers by law, pursuant to Health and Safety Code sections 101375, 101400, 101405, and 101460; and WHEREAS, the County is currently unable to transport or store food, equipment, or utensils impounded in the City’s jurisdiction due to logistical constraints; and WHEREAS, the City and County have seen a recent proliferation of sidewalk vendors, including compact mobile food operations and temporary food service operations, with a corresponding proliferation of unpermitted food vendor activity, and increased requests for protection received by County enforcement officers in the field; and WHEREAS, the City and County desire the City to enforce provisions of the California Retail Food Code (Part 7 of Division 104 of the Health and Safety Code) related to Compact Mobile Food Operations (including, but not limited to, Chapter 11.7 of Part 7 of Division 104 of the Health and Safety Code) within the boundaries of the City; and WHEREAS, City hereby warrants to County that City is skilled and able to exercise the powers and duties described in the Interlocal Enforcement Memorandum of Understanding (MOU); and WHEREAS, in recognition of the City and County’s ability to contract for City performance of County health functions (see, e.g., Health & Saf. Code § 101415), and in recognition of the City’s authority to exercise the powers and duties conferred upon city health officers by law, County desires to delegate enforcement authority to the City pursuant to this Agreement to exercise the powers and duties described in the MOU, subject to the terms and conditions of the MOU. WHEREAS, adoption of this MOU is exempt from environmental review pursuant to California Environmental Quality Act Guideline 15061(b)(3); and NOW, THEREFORE BE IT RESOLVED, that the City Council of the City of San Rafael hereby finds that the foregoing recitals to be true and correct and authorizes the City Manager to enter into an Interlocal Enforcement MOU with the County of Marin as described in Exhibit One attached hereto, to be effective immediately. I, LINDSAY LARA, Clerk of the City of San Rafael, hereby certify that the foregoing Resolution was duly and regularly introduced and adopted at a regular meeting of the City Council of the City of San Rafael, held on October 20, 2025, by the following vote, to wit: AYES: Councilmembers: Bushey, Hill, Kertz, Llorens Gulati & Mayor Kate NOES: Councilmembers: None ABSENT: Councilmembers: None Lindsay Lara, City Clerk Page 1 of 8 OAK #4874-9323-5434 INTERLOCAL ENFORCEMENT MEMORANDUM OF UNDERSTANDING RE: California Retail Food Code (Health & Saf. Code §§ 113700-114437) This INTERLOCAL ENFORCEMENT MEMORANDUM OF UNDERSTANDING (“Agreement”) is entered into as of the _______ day of _______, 2025, by and between the County of Marin (“County”), and the City of San Rafael (“City”), a California municipal corporation, (collectively “Parties” or individually, “Party”) with reference to the following facts, understandings and intentions. Recitals WHEREAS, “enforcement officers” have authority to enforce provisions of the California Retail Food Code (See, e.g., Article 2 of Chapter 13 of Part 7 of Division 104 of the Health and Safety Code); and WHEREAS, Health and Safety Code section 113774 defines “enforcement officer” as “the director, agents, or environmental health specialists appointed by the State Public Health Officer, and all local health officers, directors of environmental health, and their duly authorized registered environmental health specialists and environmental health specialist trainees”; and WHEREAS, the City has not appointed a health officer pursuant to Health and Safety Code section 101460; and WHEREAS, pursuant to an agreement the City and County entered into on August 13, 1973, the County health officer and his/her/their deputies enforces and observes in the City’s jurisdiction all public health statutes and ordinances and related inspections, and exercises the same powers and duties in the City as are conferred upon city health officers by law, pursuant to Health and Safety Code sections 101375, 101400, 101405, and 101460; and WHEREAS, the County Public Health Officer delegates enforcement of the Retail Food Code to the County’s Director of Environmental Health Services, who directs and manages the operations of the County’s Registered Environmental Health Specialists (REHSs), including execution of their duties under the California Health and Safety Code, and the County warrants that its REHSs have authority under the Health and Safety Code to exercise the powers and duties described in Section 3 of this Agreement; and WHEREAS, the County is currently unable to transport or store food, equipment, or utensils impounded in the City’s jurisdiction due to logistical constraints; and WHEREAS, the City and County have seen a recent proliferation of sidewalk vendors, including compact mobile food operations and temporary food service operations, with a corresponding proliferation of unpermitted food vendor activity, and increased requests for protection received by County enforcement officers in the field; and WHEREAS, the City and County seek to enforce provisions of the California Retail Food Code (Part 7 of Division 104 of the Health and Safety Code) related to permitting of compact mobile food operations and temporary food service operations (including, but not limited to, Page 2 of 8 Chapter 11 and 11.7 of Part 7 of Division 104 of the Health and Safety Code) within the boundaries of the City; and WHEREAS, in recognition of the City and County’s ability to contract with each other for performance of functions related to public health (see, Health & Saf. Code § 101400 et seq.), and in recognition of their respective authority to exercise the powers and duties conferred upon city and county health officers by law, the Parties desire to establish procedures to protect the health and safety of consumers, while respecting the rights of vendors, ensuring the safety of inspectors, and prudently and pragmatically utilizing the resources offered by health inspectors, code enforcement, and law enforcement. Memorandum of Understanding (“MOU”) NOW, THEREFORE, in consideration of their mutual covenants, the parties hereto agree as follows: 1. Incorporation of Recitals. The recitals and all defined terms set forth above are hereby incorporated into this MOU as if set forth herein in full. 2. Powers and Authorities. Health and Safety Code 114393 authorizes the County Public Health Officer, and the REHSs under their authority, to impound certain food, equipment, and utensils. 3. Project Coordination. The Parties agree to cooperate and share resources in furtherance of execution of the services the County provides the City under the 1973 Agreement and of enforcement of permitting requirements for unpermitted compact mobile food operations and unpermitted temporary food service operations (See Chapter 11 and 11.7 of Part 7 of Division 104 of the Health and Safety Code). For these purposes, the authorized representatives identified below shall represent County and City in matters pertaining to the administration of this MOU. A. County. The County Executive or his/her/their designee shall represent the County for all purposes under this MOU, except (1) where approval for the County is specifically required by the Board of Supervisors by the Health and Safety Code; or (2) where approval of the County’s Public Health Officer (whose powers under the Retail Food Code are delegated to the County’s Director of Environmental Health Services) is required by the Health and Safety Code. B. City. The City Manager or his/her/their designee shall represent City for all purposes under this MOU. C. Food Safety Field Checks. City and County will collaborate and cooperate to conduct field operations (“Food Safety Field Checks”) to ensure compliance with permitting requirements set forth in the Retail Food Code. 4. Performance of Food Safety Field Checks Page 3 of 8 A. Scope of Joint Enforcement Services. During the term of this Agreement, City shall have the authority to perform the powers and duties set out in the “Scope of Joint Enforcement Services” attached hereto as Exhibit A and incorporated herein by reference. B. Time of Performance. City’s performance of the enforcement powers and duties, as described in Exhibit A, are to commence upon final execution of this MOU. C. Standard of Quality. All duties performed by City under this MOU shall be performed: (1) with due diligence, using its best efforts to perform and coordinate all activities in a timely manner, based on available resources; (2) in accordance with all applicable legal requirements; and (3) with the standard of quality ordinarily expected of City or County health officers. D. Performance not Required. Nothing in this MOU requires the parties to perform the enforcement described in Exhibit A. Further, nothing in this MOU modifies the County’s existing regulation and permitting of food facilities in the City’s jurisdiction, pursuant to the 1973 Agreement of the parties. 5. Compensation. No compensation shall paid to either party for performance of the enforcement powers and duties under this MOU. 6. Term. This Agreement shall commence upon its execution by both parties and shall continue in full force and effect until terminated as provided herein. 7. Employment of Other Consultants, Specialists or Experts. City will not employ or otherwise incur an obligation to pay other consultants, specialists or experts for services in connection with this MOU without the prior written approval of the County. 8. Independent Contractor. It is expressly agreed that City, in the performance of the work and services agreed to be performed by City, shall not be considered an agent or employee of County and shall have responsibility for and control over the details and means of providing its services under this MOU. City shall furnish, at its own expense, all labor, materials, equipment, tools, transportation and services necessary for the successful completion of the services under this MOU. City, or any officer, elected official, employee, agent, or subcontractor of City, shall obtain no rights to retirement benefits or other benefits which accrue to County’s employees, and City hereby expressly waives any claim it may have to any such rights. City, its officers, employees and agents shall not have any power to bind or commit the County to any decision. 9. Compliance with Laws. A. General. City shall use the standard of care applicable to local governments to comply with all applicable federal, state, and local laws, codes, ordinances, and regulations. City represents and warrants to County that it has and shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement any licenses, permits, insurance and certifications which are legally required for City to comply with its duties. County is not Page 4 of 8 responsible or liable for City’s failure to comply with any or all of the requirements contained in this paragraph or in this MOU. B. Workers’ Compensation. City certifies that it is aware of the provisions of the California Labor Code which require every employee to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that Code, and City certifies that it will comply with such provisions before commencing performance of the MOU and at all times in the performance of the MOU. C. Prevailing Wage. City and City’s subcontractors (if any) shall, to the extent required by the California Labor Code, pay not less than the latest prevailing wage rates to workers and professionals as determined by the Director of Industrial Relations of the State of California pursuant to California Labor Code, Part 7, Chapter 1, Article 2. Copies of the applicable wage determination are on file at the County’s office of the County Clerk. 10. Confidential Information. All data, documents, discussions or other information developed or received by or for City in performance of this MOU are confidential unless required to be disclosed pursuant to State or Federal law. 11. Assignment. Neither party shall assign, delegate, transfer, or convey its powers, duties, responsibilities, or interests in this Agreement or any right, title, obligation, or interest in or to the same or any part thereof without the other’s prior written consent. 12. Termination of MOU Default. This MOU and all obligations hereunder may be terminated at any time, with or without cause, by either party upon thirty (30) days’ written notice to the other party. 13. Merger; Amendment. This MOU constitutes the complete and exclusive statement of the agreement between County and City concerning the subject matter of this MOU and shall supersede all prior negotiations, representations, or agreements, either written or oral. This document may be amended only by written instrument, signed by both the County and City. All provisions of this MOU are expressly made conditions. 14. Interpretation. This MOU shall be interpreted as though it was a product of a joint drafting effort, and no provisions shall be interpreted against a party on the ground that said party was solely or primarily responsible for drafting the language to be interpreted. 15. Written Notification. Any notice, demand, request, consent, approval or communication that either party desires or is required to give to the other party shall be in writing and either served personally or sent by prepaid, first-class mail. Any such notice, demand, etc. shall be addressed to the other party at the address set forth below. Either party may change its address by notifying the other party in writing of the change of address. Notice shall be deemed communicated within seventy-two (72) hours from the time of mailing if mailed as provided in this section. If to County: County Clerk’s Office Page 5 of 8 County of Marin 3501 Civic Center Drive, Suite 234 San Rafael, CA 94903 If to City: City Clerk’s Office City of San Rafael 1400 Fifth Avenue, Room 209 San Rafael, CA 94901 16. MOU Is Binding. The terms, covenants, and conditions of this Agreement shall apply to, and shall bind, the heirs, successors, executors, administrators, assigns, delegees, and subcontractors of both parties. 17. Equal Employment Opportunity. City is an equal opportunity employer and agrees to comply with all applicable state and federal regulations governing equal employment opportunity. City will not discriminate against any employee or applicant for employment because of race, religion, age, sex, creed, color, sexual orientation, marital status or national origin. City will take affirmative action to ensure that applicants are treated during such employment without regard to race, religion, age, sex, creed, color, sexual orientation, marital status, or national origin. Such action shall include, but shall not be limited to, the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; lay-offs or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. 18. Non-Exclusive MOU. This is a non-exclusive agreement. County reserves the right to also exercise the powers and duties described in Section 3 of this MOU. There are no third party beneficiaries of this MOU and nothing in this MOU, express or implied, is intended to confer on any person or entity other than the parties hereto. 19. Remedies/Waiver. No failure on the part of either party to exercise any term, covenant, condition, right or remedy hereunder shall operate as a waiver of any other term, covenant, condition, right or remedy that such party may have hereunder. All remedies permitted or available under this MOU, or at law or in equity, are cumulative and alternative. 20. Mutual Indemnification. A. Indemnification. To the fullest extent permitted by law, each Party shall indemnify, defend and hold the other Party (“Other Party”) harmless from any and all liability (including liability for claims, demands, damages, obligations, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, including reasonable attorneys’ fees and costs, court costs, interest, defense costs and expert witness fees) of any nature (“Liability”) that such Other Party may suffer, sustain or become subject to as a result of the Party’s action or inaction, which is attributable to the Liability. This indemnification is an independent covenant between the parties and will survive any termination of this MOU. Page 6 of 8 B. Dispute Resolution. Nothing in this MOU gives rise to a claim for breach or other theories of liability under contract law. Any disputes concerning execution of services provided for herein, or rights and duties governing the services provided for herein, shall be resolved by use of a mediator agreed to by both parties, whose expenses shall be shared equally by each party, or by an in-person settlement conference. 21. Severability. If any one or more of the provisions contained herein shall for any reason be held to be invalid, illegal or unenforceable in any respect, then such provision or provisions shall be deemed severable from the remaining provisions hereof, and such invalidity, illegality, or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had not been contained herein. 22. Exhibits. The following exhibits are attached to this Agreement and incorporated herein by this reference: A. Exhibit A: Scope of Joint Enforcement Services 23. Execution. This Agreement may be executed in several counterparts, each of which shall constitute one and the same instrument and shall become binding upon the parties when at least one copy hereof shall have been signed by both parties. In approving this Agreement, it shall not be necessary to produce or account for more than one such counterpart. The parties hereby expressly agree to the use of electronic signatures, which shall be deemed to have the same effect as an original signature. 24. Authority. Each individual executing this Agreement on behalf of one of the parties represents that he/she/they is/are duly authorized to sign and deliver the Agreement on behalf of such party and that this Agreement is binding on such party in accordance with its terms. Page 7 of 8 IN WITNESS WHEREOF, County and City have executed this Agreement as of the date first above written. COUNTY OF MARIN By: __________________________________ Name: Derek Johnson Title: County Executive Date: ATTEST: By: __________________________________ County Clerk CITY OF SAN RAFAEL By: __________________________________ Name: Cristine Alilovich Title: City Manager Date: ATTEST: By: __________________________________ City Clerk Page 8 of 8 EXHIBIT A Scope of Joint Enforcement Services 1. Food Safety Field Check. a. For each Food Safety Field Check, the Parties shall jointly decide and agree upon the date, time, and location, and the type and number of personnel attending each Food Safety Field Check, no less than seven (7) days before the event commences, unless the Parties mutually agree to a shorter time frame. b. Each Food Safety Field Check shall occur within the boundaries of the City. c. Prior to commencing any Food Safety Field Checks, the City and County shall cooperate in the establishment of an administrative process for compliance with Health and Safety Code section 114393, and protocols for ensuring protection of vendors’ due process rights. d. Each Party shall bear their own expenses related to any Food Safety Field Check, unless otherwise agreed in writing in advance of the enforcement activity. 2. Responsibilities. a. The County shall be responsible for providing Registered Environmental Health Specialists. (See Health & Safety Code § 106615). i. REHSs shall identify violations of Health and Safety Code section 114387. ii. REHSs shall identify food from Unapproved Food Sources, as the term is defined in [H&S], and make all determinations about the impoundment of food and equipment. b. The City shall be responsible for the following: i. Providing code enforcement personnel for each Food Safety Field Check. ii. Providing law enforcement personnel for each Food Safety Field Check. iii. The impoundment of food and equipment identified by the County’s Enforcement Officers pursuant to Health and Safety Code sections 114390-114399.