HomeMy WebLinkAbout12 - Revocable License Agreement to Operate a Certified Farmers' Market Located in Lido Marina VillageTO:
FROM
CITY OF
NEWPORT BEACH
City Council Staff Report
June 25, 2019
Agenda Item No. 12
HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
Seimone Jurjis, Community Development Director - 949-644-3232,
sjurjis@newportbeachca.gov
PREPARED BY: Lauren Wooding Whitlinger, Real Property Administrator,
Iwooding(a�newportbeachca.gov
PHONE: 949-644-3236
TITLE: Revocable License Agreement with Lido Group Retail, LLC to
Operate a Certified Farmers' Market Located in Lido Marina Village
ABSTRACT:
Lido Group Retail, LLC ("Licensee") with the assistance of the Orange County Farm
Bureau has operated the Lido Marina Village Certified Farmers' market under a Special
Event Permit in the public right-of-way at Via Oporto and Central Avenue since May 2018.
The Licensee is seeking the City Council's consideration for a revocable license
agreement ("Agreement") to use Via Oporto, from Central Avenue to Via Lido for a
farmers' market.
RECOMMENDATION:
a) Determine this action is exempt from the California Environmental Quality Act (CEQA)
pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because
this action will not result in a physical change to the environment, directly or indirectly;
b) Approve a waiver of City Council Policy F-7 — Income Property based on the findings
contained in this staff report and the license agreement, that conducting an open bid
process or changing the licensee would result in excessive vacancy, and the use of
the property provides an essential or unique service to the community and is of a
statewide benefit, and might not otherwise be provided were an open bid or full fair
market value of the property be required; and
c) Authorize the City Manager and City Clerk to execute a five-year Revocable License
Agreement for Temporary Use of City Property for a Certified Farmers' Market at Lido
Marina Village with Lido Group Retail, LLC, in a form substantially similar to the
agreement attached to the staff report.
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Revocable License Agreement with Lido Group Retail, LLC to Operate a
Certified Farmers' Market Located in Lido Marina Village
June 25, 2019
Page 2
FUNDING REQUIREMENTS:
Revenues collected pursuant to the proposed Agreement, $4,200 per year, which shall
be adjusted annually by the percentage change in the cost of living as indicated by the
Consumer Price Index, will be posted to the General Fund in a Real Property account in
the Community Development Department (010-01050505).
*441RRA159709
Background
The Lido Marina Village Certified Farmers' Market ("Market") operated in the public right-
of-way on Via Oporto at Central Avenue each week, from 2010 through 2014.
Redevelopment of the Lido Marina Village area by the Licensee, and its parent company
DJM Capital Partners, Inc., over the last several years necessitated street closures and
other work in and near the rights-of-way. The previous Market operator agreed to suspend
the Market during construction, and subsequently relocated the Market to McFadden
Square at the base of the Newport Pier in 2015.
With construction completed and the stores in Lido Marina Village now open, the Licensee
requests to re-establish a weekly Market in the Via Oporto right-of-way. The Licensee
obtained special event permits beginning in May 2018, to operate the Market on a trial
basis, while the terms of the proposed Agreement were being negotiated. The current
special event permit is valid through June 26, 2019.
Operation
Under the terms of the proposed Agreement (Attachment A), the Market will run every
Wednesday from 1 p.m. to 5 p.m., but no later than 6 p.m., with set-up starting no earlier
than 11 a.m. and tear -down and clean-up completed by 7 p.m. The license area is limited
to the right-of-way on Via Oporto, from Central Avenue to Via Lido, and includes use of
twelve un -metered parking spaces occupied by the Market set-up. Vendor loading and
unloading and parking of vendor vehicles will be limited to the license area and the private
alley off of Via Oporto. No more than 25 vendors will be spaced throughout the Market,
as shown on the site plan exhibit (Attachment B).
The Licensee has separately contracted with the Orange County Farm Bureau
("Manager"), who has extensive experience managing and operating certified farmers'
markets throughout Orange County. They possess the qualifications and experience
necessary to manage a successful operation. The Manager will be responsible for daily
Market operations, overseeing set-up and clean-up of the license area, and sourcing and
managing the vendors.
Twelve on -street parking spaces will not be available to the public while the Market is
operating. Parking is available at a parking structure at 3434 Via Lido, and in the public
parking lot at Central Avenue. Metered street parking is also available on Central Avenue,
on Via Lido, and Via Oporto between Via Lido and 32nd Street.
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Revocable License Agreement with Lido Group Retail, LLC to Operate a
Certified Farmers' Market Located in Lido Marina Village
June 25, 2019
Page 3
City Council Policy F-7, Income Property
Due to the Licensee's adjacent real property interests, staff determined the Licensee has
a unique interest in meeting the community expectations, and in seeing the Market
succeed. Therefore, staff did not conduct an open bid process to solicit proposals from
other market operators. Fair market value rent for the license area is estimated at $8,000
per year. Staff believes the following findings can be made, as required by City Council
Policy F-7, Income Property (Attachment C):
Converting the property to another use or changing the licensee of the property
would result in excessive vacancy, which would outweigh other financial benefits;
2. The Licensee provides an essential or unique service to the community that might
not otherwise be provided were full market value of the property be required; and
3. With the Market located in the public right-of-way and rent charged at less than fair
market value, the use provides a public benefit to the people of California by
providing affordable access to healthy and sustainable food, and is therefore a
matter of statewide benefit that might not otherwise be provided if full market value
or an open bid process be required.
Summary of Terms
The proposed terms of the Revocable License Agreement are summarized below:
The initial term is five years, with one (1) five-year extension option, unless
terminated earlier as provided by the Agreement;
2. Operating hours of the Market are limited to Wednesdays from 1 p.m. to 5 p.m. but
not later than 6 p.m., with set-up no earlier than 11 a.m., and clean-up activities
completed by 7 p.m.;
3. Rent shall be set at $4,200 per year, due in monthly installments of $350 on the first
day of each month. Rent shall be adjusted annually, upon the effective date of the
Agreement, based on the percentage change in the Consumer Price Index (CPI);
4. The Licensee shall obtain and maintain during the term of the Agreement all
appropriate permits, licenses, and certifications that may be required by any
governmental agency to operate a Certified Farmers' Market;
a. Certified producers (farmers) are exempted from the requirement to obtain a
City of Newport Beach business license pursuant to the hardship exemption
under Section 5.04.025 of the Municipal Code;
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Revocable License Agreement with Lido Group Retail, LLC to Operate a
Certified Farmers' Market Located in Lido Marina Village
June 25, 2019
Page 4
5. The Licensee shall provide certificates of insurance to the satisfaction of the City's
Risk Manager, naming the City as additional insured. Additionally, the Licensee shall
provide a liability release statement completed and executed by each vendor;
6. The Licensee shall not allow more than twenty-five (25) vendors to display and/or
sell products at the Market, and shall verify that all individual vendors are "producers"
or "certified producers";
7. The Licensee shall require its selected manager to manage and oversee the regular
on-site operations of the Market pursuant to the California Code of Regulations; and
8. Weekly set-up and clean-up of the Market shall include placement of traffic control
bollards and signage around the perimeter of the license area, and the Licensee
must comply with traffic regulations and other conditions provided by the City's
Public Works and Fire Departments.
The Agreement has been reviewed by the City Attorney's Office and has been approved
as to form.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find approval of the Agreement is not subject to the
California Environmental Quality Act ("CEQA") pursuant to Sections 15060(c)(2) (the
activity will not result in a direct or reasonably foreseeable indirect physical change in the
environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378)
of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it
has no potential for resulting in physical change to the environment, directly or indirectly.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
ATTACHMENTS:
Attachment A — Revocable License Agreement with Lido Group Retail, LLC
Attachment B — Site Plan
Attachment C — City Council Policy F-7, Income Property
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Attachment A
Revocable License Agreement with Lido Group Retail, LLC
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REVOCABLE LICENSE AGREEMENT
BETWEEN THE CITY OF NEWPORT BEACH
AND LIDO GROUP RETAIL, LLC FOR TEMPORARY USE
OF CITY PROPERTY FOR A CERTIFIED FARMERS' MARKET
AT LIDO MARINA VILLAGE
THIS REVOCABLE LICENSE AGREEMENT FOR TEMPORARY USE OF CITY
PROPERTY FOR A CERTIFIED FARMERS' MARKET ("Agreement") is made and
entered into as of this 25TH day of June 2019 ("Effective Date"), by and between the City
of Newport Beach, a California municipal corporation and charter city ("City"), and Lido
Group Retail, LLC, a California limited liability company ("Licensee"), and is made with
reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of the City.
B. Licensee is the owner of the development known as Lido Marina Village. Licensee
desires to operate a certified farmers' market adjacent to its property, located
within the Via Oporto public right-of-way owned by the City, that is generally
bounded by Central Avenue and the private alley northwest of Via Lido, as
depicted on "Exhibit A" ("License Area"), which is attached hereto and incorporated
herein by this reference.
C. A certified farmers' market is defined by the California Code of Regulations as a
location approved by the county agricultural commissioner of the county where
agricultural products are sold by producers or certified producers directly to
consumers or to individuals, organizations, or entities that subsequently sell or
distribute the products directly to end users. A certified farmers' market may only
be operated by one or more certified producers, by a nonprofit organization, or by
a local government agency (3 CCR § 1392.2(a)) (hereinafter "Certified Farmers'
Market").
D. Licensee has contracted with Orange County Farm Bureau, a 501(c)(3) California
nonprofit organization (such organization, or any replacement manager selected
by Licensee, being referred to herein as "Manager"), to operate and manage the
market on its behalf. Manager is a nonprofit organization and has operated a
certified farmers' market, in accordance with Food and Agriculture Code Sections
47000 et seq. (implementing regulations) and California Code of Regulations, Title
3, Sections 1392, et seq. in Orange County.
E. Licensee has operated the Certified Farmers' Market weekly, under a special event
permit, since May 2018, and now requests to be allowed to continue to operate the
Certified Farmers' Market in the public right-of-way in Lido Marina Village on
Wednesdays under the terms and conditions outlined in this Agreement.
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F. In accordance with City Council Policy F-7, whenever an open bid process is not
conducted or fair market value rent is not received for the use of City property, the
City shall make specific findings setting forth the reasons thereof. The City finds
that converting the property to another use or changing the licensee of the property
would result in excessive vacancy, which would outweigh other financial benefits
and the use of the property provides an essential or unique service to the
community that might not otherwise be provided were full market value of the
property be required. Additionally, as the Certified Farmers' Market may be
located, in the public right-of-way and the rent charged is less than fair market
value, the City finds this use provides a public benefit to the people of California
by providing affordable access to healthy and sustainable food, and is therefore a
matter of statewide benefit. These findings by the City are of a statewide concern
in that the beneficial uses of the property might not otherwise be provided were full
market value of the property required or an open bid process conducted.
G. In consideration of the mutual promises and obligations contained in this
Agreement, the receipt and sufficiency of which is hereby acknowledged, City
hereby grants to Licensee the revocable right to temporarily occupy and use the
License Area (defined in Section 1.1 below), and Licensee accepts the same on
the following terms and conditions.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
1. LICENSE
1.1 City grants a non-exclusive license ("License") to Licensee for the term of
this Agreement for Licensee to use an area located within the Via Oporto public right-of-
way that is owned by the City, generally bounded by Central Avenue and the private alley
northwest of Via Lido on Wednesdays for a Certified Farmers' Market. This area is
commonly known as Lido Marina Village, Newport Beach. The layout and operation of
the market shall be consistent with the site plan ("Site Plan") attached as Exhibit B, and
the traffic control plan ("Traffic Control Plan") attached as Exhibit C, which are
incorporated herein by this reference.
1.2 The License granted herein is subject to the terms, covenants and
conditions hereinafter set forth, and Licensee covenants, as a material part of the
consideration for this License, to keep and perform each and every term, covenant and
condition of this Agreement.
2. USE OF THE LICENSE AREA
Licensee's use of the License Area shall be limited to the terms of this Agreement.
Use of area outside the License Area shall not be allowed without prior written consent of
the City.
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3. PERMITS AND LICENSES
3.1 Licensee, at its sole expense, shall obtain and maintain during the term of
this Agreement, all appropriate permits, licenses and certifications that may be required
by any governmental agency, including without limitation those permits as may be issued
by the State of California, Department of Agriculture, the Orange County Agricultural
Commissioner, the Orange County Health Department and the City of Newport Beach to
operate a Certified Farmers' Market.
3.2 Licensee shall not allow any participant, vendor, and/or service provider to
participate in the Certified Farmers' Market until all appropriate permits, licenses and
certifications are obtained and a copy of said permits are furnished to the Licensee.
3.3 Licensee shall provide the License Administrator, as defined in Section 10
below, with a copy of all required permits, licenses and certificates that may be required
by Licensee, its vendors, participants, and or service providers.
4. TERM
4.1 The term of this Agreement shall commence on the Effective Date and shall
continue until June 24, 2024, with the option to renew for one (1) additional five (5) year
term at the discretion of the City Manager, unless terminated earlier as set forth herein.
4.2 The City Manager may renew this License for one (1) additional five (5) year
term if it is determined that (i) the terms of the Agreement have been complied with; (ii) a
copy of all required license, permits and certificates are on file with the License
Administrator; and (iii) the use of the License Area by Licensee is not causing a negative
impact on surrounding properties and uses. Any renewals approved pursuant to this
Section must be in writing and approved as to form by the City Attorney.
5. FEES
5.1 Licensee shall pay the City Three Hundred Fifty Dollars and 001100
($350.00) per month ("License Fee") during the term of this Agreement, which amount
shall be due and payable on the first of each month ("Due Date"), commencing on the
first day of the first month following the Effective Date of this Agreement. The License
Fee shall be pro -rated in the event of a partial month's use of the License Area.
5.2 If Licensee fails to pay the License Fee within five (5) calendar days of the
Due Date, Licensee shall pay a penalty in an amount equal to ten percent (10%) plus
interest in an amount equal to ten (10%) percent per annum on the unpaid amount,
including the late fee, that was not timely paid by the Licensee, until paid in full.
5.3 Upon the first anniversary of the Effective Date and upon each anniversary
of the Effective Date thereafter, the License Fee shall be adjusted in proportion to
changes in the Consumer Price Index, subject to the maximum adjustment set forth
below. Such adjustment shall be made by multiplying the License Fee by a fraction, the
numerator of which is the value of the Consumer Price Index for the calendar month four
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(4) months preceding the calendar month for which such adjustment is to be made, and
the denominator of which is the value of the Consumer Price Index for the same calendar
month immediately prior to Effective Date. The Consumer Price Index to be used in such
calculation is the "Consumer Price Index, All Items, 1982-84=100 for All Urban
Consumers (CPI -U), not seasonally adjusted", for the Los Angeles -Long Beach -Anaheim,
CA Area, published by the United States Department of Labor, Bureau of Labor Statistics.
If both an official index and one or more unofficial indices are published, the official index
shall be used. If said Consumer Price Index is no longer published at the adjustment date,
it shall be constructed by conversion tables included in such new index. In no event,
however, shall the amount payable under this Agreement be reduced below the License
Fee in effect immediately preceding such adjustment.
6. PURPOSE OF THIS LICENSE
The purpose of this License is to allow for the operation of a Certified Farmers'
Market within the License Area. Use of any area outside the License Area shall not be
permitted unless prior written consent is provided by the City. Licensee agrees to use the
License Area only for the activities described herein, and not to use or permit the use of
the License Area for any other purpose without first obtaining the prior written consent of
City, which consent may be withheld in City's sole and absolute discretion. Acceptable
ancillary activities include:
6.1 Entertainment typical of a certified farmers' market, such as live music, face
painter, balloon artist, seasonal characters (e.g., Santa Claus), etc.
6.2 Community booths to allow participation of local organ izationslbusinesses
to take part in the community focused event (e.g., nonprofits, green initiatives, health
awareness, local businesses).
6.3 Local artisan booths to sell hand -made goods typically made in a traditional
or non -mechanized manner utilizing high quality ingredients (e.g., cheese, bread, soap,
jewelry, etc.).
7. CONDITIONS OF LICENSE
Licensee shall comply with the following conditions prior to the commencement of
use of the License Area:
7.1 Licensee shall procure and maintain any and all required licenses, permits
and certifications to operate the Certified Farmers' Market in accordance with Section 3
above.
7.2 Licensee shall submit for review and obtain approval for all advertising and
directional signage from the City's Public Works Department and Community
Development Department, as required by the City's Municipal Code.
7.3 The Licensee shall direct vehicle traffic for the Certified Farmers' Market
using appropriate signage, and shall ensure all parking related to the Certified Farmers'
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Market, including vendors and customers, is contained on-site within Licensee's adjacent
commercial property(ies), namely within the Licensee's parking structure, or as otherwise
determined and approved by the City's Community Development Director.
7.4 Licensee shall submit a site plan and/or floor plan showing the layout of the
Certified Farmers' Market sales areas, and a traffic control plan, for review and approval
by the City's Community Department and Public Works Department. If the City's
Community Development and Public Works Department determine that it is necessary,
the Licensee shall obtain building permits and/or any other permits required for any
proposed improvements.
7.5 Licensee shall contract with an appropriate and qualified Manager pursuant
to the requirements under the California Code of Regulations, to manage and oversee
the regular on-site operations of the Certified Farmers' Market. Should Licensee elect to
replace the Manager, it shall provide the City with thirty (30) days written notice of the
name, contact information, and effective date of such replacement Manager. Such
replacement Manager shall operate in accordance with Food and Agriculture Code
Sections 47000 etseq. and California Code of Regulations, Title 3, Sections 1392, et seq.
8. CONDITIONS OF OPERATION
Licensee shall comply with the following conditions of operation during use of the
License Area:
8.1 Licensee may utilize the License Area on Wednesdays from 11:00 a.m. until
7:00 p.m. Set up activities for the Certified Farmers' Market shall not occur prior to 11:00
a.m. The Certified Farmers' Market may operate each Wednesday from 1:00 p.m. to 5:00
p.m., but in no event later than 6:00 p.m. Licensee shall ensure that the License Area is
returned, clean and free of debris, to its original condition no later than 7:00 p.m. on the
same day. City reserves the right to modify the hours of set up and operation for the
ongoing operation of the Certified Farmers' Market, in the City's sole and absolute
discretion, upon not less than 60 calendar days' prior written notice to Licensee.
8.2 Notwithstanding the schedule outlined in Section 8.1, the Certified Farmers'
Market may be restricted from operation due to a special event in the license area. The
City, upon thirty (30) days written notice, may restrict operation of the Certified Farmers'
Market on additional Wednesdays, without any compensation or reimbursement to
Licensee.
8.3 Licensee understands the Certified Farmers' Market is located in the public
right-of-way and emergency situations may develop from time -to -time that may impact or
restrict operation. Notwithstanding the schedule outlined in Section 8.1, Licensee agrees
that if such emergency situation, as determined in the City's sole and absolute discretion,
arises then City may restrict the Certified Farmers' Market from operating for the duration
of the emergency, without prior notice to the Licensee. Licensee agrees not to hold City
responsible or liable for and shall protect, defend, indemnify and hold City harmless for
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any damage, loss, claim or liability of any nature suffered as a result of the non -operation
of the Certified Farmers' Market.
8.4 Licensee or its representative Manager shall be present during each and
every Certified Farmers' Market from commencement of set up to the completion of clean
up.
8.5 The storage of materials is expressly prohibited in the License Area beyond
the approved hours of use of the License Area.
8.6 Licensee and Manager shall endeavor to recruit and retain vendors for the
Certified Farmers' Market and shall verify that all individual vendors are "certified
producers" or "producers" within the meaning of California Code of Regulations Title 3,
Sections 1392.2(d) and 1392.2(e) and shall endeavor to require all vendors to (i) adhere
to all applicable rules and regulations concerning product quality, and (ii) offerFor sale
products that are pest and disease free.
8.7 Pursuant to Section 5.04.025 of the Municipal Code, the City Council found
that the requirement to obtain a business license is a hardship on the certified producers
(farmers) due to the increase costs associated with the production and transportation
certified produce or products, and the City Council waived the requirement for certified
producers to obtain a business licenses. All other vendors must comply with the Municipal
Code and obtain the necessary business licenses.
8.8 Licensee shall not allow any participant and/or service provider to
participate in the Certified Farmers' Market until any required City of Newport Beach
business license is obtained and a copy of said license is furnished to the Licensee.
Licensee shall inform any vendors that engage in selling tangible personal property they
may be subject and shall comply with the California sales tax reporting laws and inform
the State Board of Equalization that the City is the point of sale location.
8.9 Licensee shall obtain a completed Liability Release Statement from each
vendor, prior to the vendor's participation in any Certified Farmers' Market, in the form of
Exhibit D, which is attached hereto and incorporated herein by reference. Licensee shall
not allow any vendor to participate in the Certified Farmers' Market until a completed
application and Liability Release Statement is received by the City.
8.10 Licensee shall annually, upon the anniversary of the Effective Date, provide
to the City a current roster of vendors.
8.11 No more than twenty-five (25) vendors shall display and/or sell products at
the Certified Farmers' Market. Entertainers, community booths and local artisans shall
be included within the twenty-five (25) vendor limit. No additions, enlargements or
modifications of uses or structures within the License Area shall be allowed without prior
written approval of the City Manager or designee.
8.12 Licensee and Manager shall be responsible for setup, operation,
maintenance, sanitation and cleanup of the Certified Farmers' Market. Set up shall
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include placement of vendors in accordance with the approved site plan. Licensee and
Manager shall be responsible for maintaining the License Area in a clean and orderly
fashion during the approved hours of use of the License Area by providing routine removal
of foreign material, waste and debris from the License Area. After the completion of each
Certified Farmers' Market, Licensee and Manager shall be responsible for properly
disposing of all trash that has accumulated from the operations of the Certified Farmers'
Market. Maintenance, sanitation and clean up shall be conducted within such rules and
guidelines as may be promulgated by the Orange County Health Department, the City,
and any other governmental entity having jurisdiction.
(a) Setup and cleanup of the Certified Farmers' Market shall include
placement of traffic control bollards and signage at the perimeter of the License Area, and
in the surrounding areas, as may be required by the City's Public Works Department
and/or the City's Fire Department. Throughout the term of this Agreement, City reserves
the right to require Licensee, at Licensee's sole cost and expense, to provide additional
traffic control measures deemed necessary by the City, in City's sole and absolute
discretion, to ensure public safety and/or to alleviate traffic impacts in the areas
surrounding the License Area; in each case upon not less than sixty (60) calendar days'
prior written notice to Licensee.
8.13 Licensee shall observe community noise restrictions as set forth in the City's
Municipal Code. Sound amplification associated with any activity is also subject to the
Municipal Code. Licensee shall obtain and maintain a sound amplification permit prior to
the use of any sound amplification equipment.
8.14 Entertainers shall be limited to live musical or vocal acts, face painters,
balloon artists, jugglers, and seasonal characters or similar acts. Licensee or entertainer
shall eliminate or reduce the volume of entertainment acts or amplified sound if
complaints are received and at the direction of a Police Officer, Code Enforcement
Officer, or Park Patrol Officer if sound disturbs persons of normal sensitivity.
8.15 Community booths shall be limited to non-profit organizations, local service
organizations or local businesses to promote community awareness or events. The
promotion or display of alcohol or tobacco related products shall be prohibited unless
associated with a law enforcement awareness program.
8.16 Operations within the License Area shall be conducted in accordance with
California Code of Regulations Title 3, Sections 1392.1, et seq., and within the guidelines
set forth in the State of California Department of Agricultural marketing pian.
8.17 All loading and unloading of merchandise, vendor booths and other related
improvements shall take place within the License Area.
8.18 The site plan shall be designed and operated so as to conform to access
standards set forth by Title 24 of the Uniform Building Code (handicapped access
requirements).
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8.19 The Certified Farmers' Market shall be laid out and operated so as to
conform to access standards set forth by the City's Fire Department and the Municipal
Code, for fire vehicle and emergency access requirements. Additionally, Licensee shall
comply with all fire guidelines established for the operation of the Certified Farmers'
Market by the City, as listed on the conditions of approval issued by the Fire Department,
which is attached as Exhibit E to this agreement, and incorporated herein by this
reference.
8.20 Food items shall not be processed, cooked or packaged on site. Prepared
food items shall not be sold for on-site consumption.
8.21 Only a Certified Farmers' Market may be operated in the License Area.
Licensee may not operate or conduct any other event or enterprise in the License Area
unless Licensee receives required additional approvals from the City.
8.22 Sale or consumption of alcoholic beverages is not permitted in the Certified
Farmers' Market License Area.
8.23 If the Certified Farmers' Market is determined by the City's Chief of Police
to be creating an undue impact to existing City police services, Licensee may be required
to secure a private security guard or guards upon at least thirty (30) calendar days' prior
written request by the City. Should Licensee fail to secure a private security guard or
guards pursuant to said written notice, Licensee shall reimburse City for any costs related
to City hiring a private security guard or guards. Should City require additional police
services including City traffic officer services, if these services are required on a regular
basis, as determined by the City's Chief of Police, Licensee shall reimburse City for same.
8.24 Licensee shall comply with all traffic regulations established for the
operation of the Certified Farmers' Market by the City Traffic Engineer, as listed on the
conditions of approval issued by the Public Works Department, which is attached as
Exhibit F to this agreement, and incorporated herein by this reference.
8.25 Licensee covenants and agrees that Licensee shall: (i) not use the License
Area for any unlawful purpose; (ii) use the License Area in a careful and proper manner
in accordance with this Agreement; and (iii) not bring or use any Hazardous Materials, as
defined by state or federal law, on the License Area that are in violation of applicable
laws.
8.26 Licensee shall at its own expense operate the Certified Farmers' Market in
accordance with all applicable provisions of the statutes, rules and regulations of the State
of California, the ordinances, and regulations of the County of Orange, and the Charter
and Ordinances of the City of Newport Beach.
8.27 City shall be entitled, without prior notice, to inspect the License Area for
compliance with the terms of this Agreement, and with all applicable Federal, State and
local (including those of the City) government regulations.
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9. TERMINATION OF LICENSE
9.1 Notwithstanding the term of this Agreement, this License may be terminated
during the term or any extended term in the following manner:
(a) By Licensee: At any time, without cause upon the giving of thirty (30)
calendar days written notice of termination to City;
(b) By City: At any time, without cause upon the giving of thirty (30)
calendar days written notice of termination to Licensee; or
(c) If, after written notice of any material default to Licensee of any of the
terms or conditions of this Agreement, Licensee fails to cure or correct the default within
ten (10) business days of receipt of written notice, City may immediately terminate the
License.
(d) By mutual written agreement of Licensee and City.
10. ADMINISTRATION
This License shall be administered by the Community Development Department,
The Community Development Director or his/her designee shall be the License
Administrator and shall have the authority to act for City under this License. The License
Administrator or their authorized representative shall represent City in all matters
pertaining to this License.
11. INDEMNITY AND LIABILITY FOR DAMAGES
11.1 Licensee shall indemnify, defend and hold harmless City, its City Council,
boards and commissions, officers, agents, volunteers, and employees (collectively, the
"Indemnified Parties") from and against any and all claims (including, without limitation,
claims for bodily injury, death or damage to property), demands, obligations, damages,
actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and
expenses (including, without limitation, attorney's fees, disbursements and court costs)
of every kind and nature whatsoever (individually, a Claim; collectively, "Claims"), which
may arise from or in any manner relate (directly or indirectly) to any breach of the terms
and conditions of this Agreement, any work performed or services provided under this
Agreement including, without limitation, defects in workmanship or materials or
Licensee's presence or activities conducted that relate in any way to this Agreement
(including the negligent and/or willful acts, errors and/or omissions of Licensee,
employees, vendors, suppliers, and anyone employed directly or indirectly by any of them
or for whose acts they maybe liable or any or all of them). Notwithstanding the foregoing,
nothing herein shall be construed to require Licensee to indemnify the Indemnified Parties
from any Claim, to the extent arising from the negligence or willful misconduct of the
Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any
award of attorney's fees in any action on or to enforce the terms of this Agreement. This
indemnity shall apply to all claims and liability regardless of whether any insurance
Lido Group Retail, LLC Page 9
12-14
policies are applicable. The policy limits do not act as a limitation upon the amount of
indemnification to be provided by the Licensee.
11.2 Licensee shall be liable and responsible for the security, repair and
maintenance of the License Area to the extent necessitated by Licensee's use of the
License Area under this Agreement. Licensee shall use care to protect the License Area
and restore it to its original condition to the satisfaction of the City when the License Area
is not in use by Licensee.
12. INSURANCE
Without limiting Licensee's indemnification of City, and prior to commencement of
work, Licensee shall obtain, provide and maintain at its own expense during the term of
this Agreement or for other periods as specified in this Agreement, policies of insurance
of the type, amounts, terms and conditions described in the Insurance Requirements
attached hereto as Exhibit G, and incorporated herein by reference.
13. PROHIBITION AGAINST ASSIGNMENT AND TRANSFER
City and Licensee acknowledge that City is entering into this Agreement in reliance
upon the experience and abilities of Licensee and Manager, and Manager's status as a
nonprofit corporation. Consequently, this Agreement shall not be assigned or transferred
without the prior written approval of City, which approval shall not be unreasonably
withheld, conditioned or delayed. Any assignment or transfer made without the City's
prior written consent shall be null and void. It is acknowledged and agreed that Licensee
may, without any further approval from City, delegate all or any of its obligations
hereunder to Manager by way of a subcontract or similar arrangement between Licensee
and Manager. Additionally, Licensee may not remove or replace Manager with another
manager without providing thirty (30) calendar days prior written notice to City. City's
consent to any assignment or transfer is subject to Licensee providing City with evidence
reasonably satisfactory to City that the proposed transferee and/or such proposed
transferee's proposed manager has experience comparable to Licensee and/or Manager,
and use of the License Area by the proposed transferee is consistent with the terms of
this Agreement.
Notwithstanding the foregoing, Licensee may assign or transfer this Agreement to
an Affiliate (defined below) or a Purchaser (defined below) without City approval. "Affiliate"
means a person or entity which controls, is controlled by, or is under common control with
Licensee. The terms "control" or "controlled" mean the ability to direct the control of an
entity through the management of the entity or the ownership of more than fifty percent
(50%) of the voting securities of such other entity. "Purchaser" means any person or entity
acquiring all or substantially all of Licensee's interest in the property adjacent to the
License Area.
14. CONFLICT OF INTEREST
The Licensee or its employees may be subject to the provisions of the California
Political Reform Act of 1974 ("Act"), which (a) requires such persons to disclose any
Lido Group Retail, LLC Page 10
12-15
financial interest that may foreseeably be materially affected by the work performed under
this Agreement, and (b) prohibits such persons from making, or participating in making,
decisions that will foreseeably financially affect such interest. If subject to the Act,
Licensee shall conform to all requirements of the Act. Notwithstanding Section 9, failure
to conform to the requirements of the Act constitutes a material breach and is grounds for
immediate termination of this Agreement by City. Licensee shall indemnify and hold
harmless City for any and all claims for damages resulting from Licensee's violation of
this Section.
15. NOTICE
15.1 All notices, demands, requests or approvals to be given under the terms of
this Agreement shall be given in writing, and conclusively shall be deemed served when
delivered personally, or on the third business day after the deposit thereof in the United
States mail, postage prepaid, first-class mail, addressed as hereinafter provided. All
notices, demands, requests or approvals from Licensee to City shall be addressed to City
at:
Community Development Department
City of Newport Beach
Attn: Real Property Administrator
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
15.2 All notices, demands, requests or approvals from City to Licensee shall be
addressed to Licensee at:
Lido Group Retail, LLC
Attn: Dawn Simone
3434 Via Lido, Suite 200
Newport Beach, CA 92663
Phone: (949) 673-1400
16. STANDARD PROVISIONS
16.1 Recitals. City and Licensee acknowledge that the above Recitals are true
and correct and are hereby incorporated by reference into this Agreement.
16.2 Compliance with all Laws. Licensee shall at its own cost and expense
comply with all statutes, ordinances, regulations and requirements of all governmental
entities, including federal, state, county or municipal, whether now in force or hereinafter
enacted. In addition, all work prepared by Licensee shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements.
16.3 Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent breach
Lido Group Retail, LLC Page 11
12-16
of the same or any other term, covenant or condition contained herein, whether of the
same or a different character.
16.4 Integrated Agreement. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
preliminary negotiations and agreements of whatsoever kind or nature are merged herein.
No verbal agreement or implied covenant shall be held to vary the provisions herein.
16.5 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either party by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply.
16.6 Amendments. This Agreement may be modified or amended only by a
written document executed by both Licensee and City and approved as to form by the
City Attorney.
16.7 Severability. If any term or portion of this Agreement is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall continue in full force and effect.
16.8 Controlling Law and Venue. The laws of the State of California shall govern
this Agreement and all matters relating to it and any action brought relating to this
Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange.
16.9 Taxes. Licensee acknowledges that the License granted herein may result
in Licensee being assessed by the County of Orange possessory interest taxes on
Licensee's interest in the License Area. Licensee shall have the sole obligation to pay
any taxes, fees and assessments, plus applicable penalties and interest, which may be
imposed by law and arise out of Licensee's License hereunder. Licensee shall indemnify,
defend and hold harmless City against any and all such taxes, fees, penalties or interest
assessed, or imposed against City hereunder.
16.10 No Third Party Rights. The parties do not intend to create rights in or grant
remedies to, any third party as a beneficiary of this Agreement, or of any duty, covenant,
obligation or undertaking established herein.
16.11 No Attorneys' Fees. In the event of any dispute under the terms of this
Agreement the prevailing party shall not be entitled to attorneys' fees.
16.12 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument.
[SIGNATURES ON NEXT PAGE]
Lido Group Retail, LLC Page 12
12-17
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:�� /20[g
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By: lxuel_� _ By:
ror: Aaron C. Harp Diane B. Dixon
City Attorney Mayor
ATTEST:
Date:
By:
Leilani I. Brown
City Clerk
LICENSEE: Lido Group Retail, LLC, a
California limited liability company
Date:
By: Lido Group Retail Holdings, LLC, it's
Managing Member
in
D. John Miller
Member
Lindsay Parton
Member
Attachments: Exhibit A: Depiction of License Area
Exhibit B: Site Plan
Exhibit C: Traffic Control Plan
Exhibit D: Vendor Liability Release Statement
Exhibit E: Fire Department Conditions of Approval
Exhibit F: Public Works Department Conditions of Approval
Exhibit G: Insurance Requirements
Lido Group Retail, LLC Page 13
12-18
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
Vrffllt:Vb UFF1
Date:
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By: dt-k AA�a� By:
For. Aaron C. Harp PAwU-5-,(9 Diane B. Dixon
City Attorney Mayor
ATTEST: LICENSEE: Lido Group Retail, LLC, a
Date: California limited liability company
Date:
By: By: Lido Group Retail Holdings, LLC, it's
Leilani 1. Brown Managing Member
City Clerk By:
D. John Miller
Member ;
In
Lindsay
Member
Attachments: Exhibit A: Depiction of License Area
Exhibit B: Site Plan
Exhibit C: Traffic Control Plan
Exhibit D: Vendor Liability Release Statement
Exhibit E: Fire Department Conditions of Approval
Exhibit F: Public Works Department Conditions of Approval
Exhibit G: Insurance Requirements
Lido Group Retail, LLC Page 13
12-19
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:` p
By:Akld.�-
For: Aaron C. Harp p4*to•r.c1
City Attorney
ATTEST:
Date:
By:
Leilani 1. Brown
City Clerk
Attachments:
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:
Diane B
Mayor
Dixon
LICENSEE: Lido Group Retail, LLC, a
California lim'ted liability company
Date: �ll abiq
By: Lido Group Retail Holdings, LLC, it's
Managing Members
By:
D. ohn Miller
Member
Lindsay Parton
Member
Exhibit A: Depiction of License Area
Exhibit B: Site Pian
Exhibit C: Traffic Control Plan
Exhibit D: Vendor Liability Release Statement
Exhibit E: Fire Department Conditions of Approval
Exhibit F: Public Works Department Conditions of Approval
Exhibit G: Insurance Requirements
Lido Group Retail, LLC Page 13
12-20
EXHIBIT A
DEPICTION OF LICENSE AREA
Lido Group Retail, LLC
Page A-1
12-21
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0 100 200 disclaim any and all responsibility from or relating to
any results obtained in its use.
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12-22
Exhibit A-2
12-23
EXHIBIT B
SITE PLAN
Lido Group Retail, LLC Page B-1
12-24
71
EXHIBIT C
TRAFFIC CONTROL PLAN
Lido Group Retail, LLC Page C -'I
12-26
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EXHIBIT D
CITY OF NEWPORT BEACH — FARMERS' MARKET
VENDOR LIABILITY RELEASE STATEMENT
WHEREAS, the CITY OF NEWPORT BEACH, a California municipal corporation
and charter City ("City"), has entered into a license agreement with LIDO GROUP
RETAIL, LLC, a California limited liability company, to allow Lido Group Retail, LLC to
use the City owned Via Oporto public right-of-way generally located between Central
Avenue and the alley northwest of Via Lido, within the area commonly known as Lido
Marina Village, Newport Beach, California for a Certified Farmers' Market ("Farmers'
Market");
WHEREAS, I,
being over the age of eighteen (18), have made a voluntary request to participate in the
Farmers' Market; and
WHEREAS, in consideration of acceptance of my entry in the Farmers' Market, I
agree on behalf of myself, my heirs, my executors, and administrators, to waive, release,
and forever discharge any and all rights and claims for damages which may hereafter
accrue to me against the below listed agencies, companies or entities, their officials,
employees, as provided herein; and
WHEREAS, the City is willing to allow me to participate in the Farmers' Market
pursuant to the below conditions.
NOW, THEREFORE, in consideration of the permission given to participate in the
Farmers' Market, I do hereby agree to the following:
1. I recognize that participation in the Farmers' Market may be dangerous and
contains risk of personal injury, death, disfigurement, disability or property damage or loss
("damages").
2. 1 have been fully informed of all aspects of the Farmers' Market and all
aspects of the activities that I will be participating in at the Farmers' Market. Despite the
potential risk of damages to me as a result of my participation in the Farmers' Market, I
have decided to participate in the Farmers' Market. I understand and agree that my
participation in the Farmers' Market is voluntary and that 1 may quit the Farmers' Market
at any time.
3. 1 hereby agree to assume any and all risk and responsibility for all risks and
damages associated with my participation in the Farmers' Market, whether identified by
the City of Newport Beach, Lido Marina Village Certified Farmers' Market, Lido Group
Retail, LLC, the market managers or the County of Orange including, but not limited to,
strenuous physical activity or exertion, tripping or falling and being struck by objects or
persons. Such risks may result in injuries that include, but are not limited to, sprains,
Lido Group Retail, LLC Page D-1
12-30
strains or tear of muscles or ligaments; fracture or dislocation of joints or bones; head or
facial injuries, spinal cord or internal injuries; or other damages related to pre-existing
medical conditions I may have.
4. To the maximum extent permitted by law, I hereby, for myself, my heirs,
executors, administrators, assigns or anyone who might claim on my behalf, agree not to
bring any claim, and waive, release and discharge the City of Newport Beach, Lido Marina
Village Certified Farmers' Market, Lido Group Retail, LLC, or the market managers, and
their respective members, managers, directors, officials, officers, agents, affiliates,
volunteers, consultants, attorneys and employees ("Released Parties") from any and all
duty to me; liability for any damages to me; and/or liability for any damages, losses, costs,
and expenses arising out of or in the course of my participation in the Farmers' Market,
including all liability for any active or passive negligence by the Released Parties. This
release and waiver extends to all claims of every kind or nature whatsoever, foreseen or
unforeseen, known or unknown. I expressly intend this waiver and release to be effective,
regardless of whether the claim of liability is asserted in negligence, strict liability or other
theory of recovery.
5. 1 hereby for myself, my heirs, executors, administrators, and assigns, agree
to defend and indemnify the Released Parties against any and all manner of actions,
causes of actions, suits, debts, claims, demands, or damages or liability or expense of
every kind and nature incurred or arising by reason of any actual or claimed negligent or
wrongful act or omission of mine while participating in the Farmers' Market.
I HAVE READ, UNDERSTAND AND AGREE TO THE WAIVER AND RELEASE OF
LIABILITY. I UNDERSTAND THAT BY MY SIGNATURE ON THIS DOCUMENT, I AM
WAIVING MY RIGHTS, INCLUDING ANY RIGHTS I MAY HAVE AGAINST THE
RELEASED PARTIES
Dated:
Signature
Printed Name
Witness
Original: To Records
Lido Group Retail, LLC Page D-2
12-31
EXHIBIT E
FIRE DEPARTMENT CONDITIONS OF APPROVAL
1. Do not block entrances or exits from any building. Do not block Fire Department
access to any fire suppression equipment.
2. Emergency access must be maintained at all times during the Certified Farmers'
Market, including the set-up period before and the clean-up period after the event.
3. Obey all City, County and State regulations. Comply with the lawful orders of Police
and Fire personnel, or other government officials.
4. Licensee is responsible for ensuring all tents/canopies/shade structures or other
similar equipment being used at the event are properly secured to the ground to
ensure the safety of event participants and the public.
5. Inspections required on all tent permits. If tent permit is required, inspection fees
apply.
6. Fire lane of eighteen feet (18') of clear width on Via Oporto shall remain
unobstructed and accessible for emergency vehicles.
7. Bollards to be installed per permitted plans.
8. Do not exceed posted occupant load inside buildings.
9. Visible and mounted fire extinguishers with current service tags.
10. No smoking signs are required.
11. Illuminated exit signs.
12. Emergency lighting.
13. Exit doors are not to be blocked and are to remain accessible as exits when the
tent is occupied.
14.All interior decorative fabrics or materials shall be flame resistant. Provide
certificates of flame resistance.
15. Bonding of chairs (if used) in groups of three or more is required when loose seats,
folding chairs, or similar seating is not fixed to the floor, the occupant load is 200
or more, and tables are not provided.
16.Cooking and heating a ui ment shall not be located within 10 feet of exits or
combustible materials.
17. Outdoor cooking that produces sparks or grease -laden vapors shall not be
performed within 20 feet from a tem ora membrane structure tent or canopy.
Lido Group Retail, LLC Page E-1
12-32
18. LPG containers shall be located outside and be adequately protected and secured.
If LPG used permit must be obtained from Fire Department.
19. Open flame or other devices emitting flame are not permitted inside or within 20
feet of the tent, canopy, or temporary membrane structure.
20. If a pre -event inspection or inspector stand-by services are required, fees shall be
charged accordingly.
Lido Group Retail, LLC Page E-2
12-33
EXHIBIT F
PUBLIC WORKS DEPARTMENT CONDITIONS OF APPROVAL
1. All vehicles shall be lawfully parked. No fire lane exemption.
2. No exclusive use of street, alleys, or sidewalks, except in the License Area
pursuant to the terms of this Agreement.
3. No exclusive use of public parking areas.
4. No activities permitted in any portion of public street, sidewalk, or alley, except in
the License Area pursuant to the terms of this Agreement.
5. No posting of promotional signs permitted on an portion of public property,
including trees, utility poles, street signs, except as noted on the Traffic Control
Plans attached as Exhibit C to this Agreement.
6. Activities shall not create a pedestrian or traffic hazard. Prevent crowds from
standing in streets and from blocking sidewalks.
7. Complete clean-up of the License Area is the responsibility of the Licensee.
8. No vehicles shall be driven onto the sidewalk.
9. All directional signage must be set-up on the day of the Certified Farmers' Market
and removed immediately following the event, pursuant to the terms of Section 8
of this Agreement.
10. Licensee shall direct attendees to carpool or use alternate means of transportation
to the Certified Farmers' Market to the extent possible. Parking within the
residential neighborhood shall be kept to a minimum.
11. Do not block entrances or exits from any building. Do not block Fire Department
access to any fire suppression equipment.
12. Licensee shall ensure all traffic control measures for the road closure are installed
no later than 12:00 p.m. the day of the Certified Farmers' Market and removed
immediately following the event, pursuant to the terms of Section 8 of this
Agreement.
13. Public access to and along the Bayfront boardwalk shall remain open during the
Certified Farmers' Market.
Lido Group Retail, LLC Page F-1
12-34
EXHIBIT G
INSURANCE REQUIREMENTS
Provision of Insurance. Without limiting Licensee's indemnification of City, and
prior to commencement of work, Licensee shall obtain, provide and maintain at its
own expense during the term of this Agreement, policies of insurance of the type
and amounts described below and in a form satisfactory to City. Licensee agrees
to provide insurance in accordance with requirements set forth here. If Licensee
uses existing coverage to comply and that coverage does not meet these
requirements, Licensee agrees to amend, supplement or endorse the existing
coverage.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an assigned policyholders'
Rating of A- (or higher) and Financial Size Category Class VII (or larger) in
accordance with the latest edition of Best's Key Rating Guide, unless otherwise
approved by the City's Risk Manager.
3. Coverage Requirements.
A. Workers' Compensation Insurance. Licensee shall maintain Workers'
Compensation Insurance, statutory limits, and Employer's Liability
insurance with limits of at least one million dollars ($1,000,000) each
accident for bodily injury by accident and each employee for bodily injury by
disease in accordance with the laws of the State of California, Section 3700
of the Labor Code.
Licensee shall submit to City, along with the certificate of insurance, a
Waiver of Subrogation endorsement in favor of City, its officers, agents,
employees and volunteers.
C. General Liability Insurance. Licensee shall maintain commercial general
liability insurance, and if necessary umbrella liability insurance, with
coverage at least as broad as provided by Insurance Services Office form
CG 00 01, in an amount not less than two million dollars ($2,000,000) per
occurrence, four million dollars ($4,000,000) general aggregate. The policy
shall cover liability arising from premises, operations, products -completed
operations, personal and advertising injury, and liability assumed under an
insured contract (including the tort liability of another assumed in a business
contract) with no endorsement or modification limiting the scope of
coverage for liability assumed under a contract.
D. Automobile Liability Insurance. Licensee shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00 01
covering bodily injury and property damage for all activities of Licensee
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arising out of or in connection with work to be performed under this
Agreement, including coverage for any owned, hired, non -owned or rented
vehicles, in an amount not less than one million dollars ($1,000,000)
combined single limit each accident.
4. Other Insurance Requirements. The policies are to contain, or be endorsed to
contain, the following provisions:
A. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation against
City, its elected or appointed officers, agents, officials, employees and
volunteers or shall specifically allow Licensee or others providing insurance
evidence in compliance with these requirements to waive their right of
recovery prior to a loss. Licensee hereby waives its own right of recovery
against City, and shall require similar written express waivers from each of
its vendors, participants, service providers, and subcontractors.
B. Additional Insured Status. All liability policies including general liability,
excess liability and automobile liability, if required, but not including
professional liability, shall provide or be endorsed to provide that City and
its officers, officials, employees, and agents shall be included as insureds
under such policies. Additional insured endorsements shall be at least as
broad as ISO Form(s) CG 20 10 11 85; or CG 20 10 and CG 20 37.
C. Primary and Non Contributory. All liability coverage shall apply on a primary
basis and shall not require contribution from any insurance or self-insurance
maintained by City.
D. Notice of Cancellation. All policies shall provide City with thirty (30)
calendar days notice of cancellation (except for nonpayment for which ten
(10) calendar days notice is required) or nonrenewal of coverage for each
required coverage.
5. Additional Agreements Between the Parties. The parties hereby agree to the
following:
A. Evidence of Insurance. Licensee shall provide certificates of insurance to
City as evidence of the insurance coverage required herein, along with a
waiver of subrogation endorsement for workers' compensation and other
endorsements as specified herein for each coverage. Insurance certificates
and endorsement must be approved by City's Risk Manager prior to
commencement of performance. Current certification of insurance shall be
kept on file with City at all times during the term of this Agreement. City
reserves the right to require complete, certified copies of all required
insurance policies, at any time.
B. City's Right to Revise Requirements. City reserves the right at any time
during the term of the Agreement to change the amounts and types of
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insurance required by giving Licensee sixty (60) calendar days advance
written notice of such change.
C. Enforcement of Agreement Provisions. Licensee acknowledges and
agrees that any actual or alleged failure on the part of City to inform
Licensee of non-compliance with any requirement imposes no additional
obligations on City nor does it waive any rights hereunder.
D. Requirements not Limiting. Requirements of specific coverage features or
limits contained in this Section are not intended as a limitation on coverage,
limits or other requirements, or a waiver of any coverage normally provided
by any insurance. Specific reference to a given coverage feature is for
purposes of clarification only as it pertains to a given issue and is not
intended by any party or insured to be all inclusive, or to the exclusion of
other coverage, or a waiver of any type. If Licensee maintains higher limits
than the minimums shown above, the City requires and shall be entitled to
coverage for higher limits maintained by Licensee. Any available insurance
proceeds in excess of the specified minimum limits of insurance and
coverage shall be available to City.
E. Self-insured Retentions. Any self-insured retentions must be declared to
and approved by City. City reserves the right to require that self-insured
retentions be eliminated, lowered, or replaced by a deductible. Self-
insurance will not be considered to comply with these requirements unless
approved by City.
F. City Remedies for Non -Compliance. If Licensee or any vendor, participant,
service provider, or subcontractor fails to provide and maintain insurance
as required herein, then City shall have the right but not the obligation, to
purchase such insurance, to terminate this Agreement, or to suspend
Licensee's right to proceed until proper evidence of insurance is provided.
G. Timely Notice of Claims. Contractor shall give City prompt and timely notice
of claims made or suits instituted that arise out of or result from Contractor's
performance under this Contract, and that involve or may involve coverage
under any of the required liability policies. City assumes no obligation or
liability by such notice, but has the right (but not the duty) to monitor the
handling of any such claim or claims if they are likely to involve City.
H. Licensee's Insurance. Licensee shall also procure and maintain, at its own
cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of the
work.
Licensee and all vendors, participants, service providers, and
subcontractors shall be subject to the insurance requirements contained
herein unless otherwise specified in the provisions above or written
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approval is granted by the City. Licensee shall verify that all vendors,
participants, service providers, and subcontractors maintain insurance
meeting all the requirements stated herein, and Licensee shall ensure that
City is an additional insured on insurance required from all vendors,
participants, service providers, and subcontractors.
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Attachment B
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DRAWINGS AND WRITTEN MATERIAL APPEARING HEREIN CONSTITUTE ORIGINAL AND
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PROJECT NO. 12063
DATE
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Attachment C
City Council Policy F-7, Income Property
12-41
F-7
INCOME AND OTHER PROPERTY
The City owns and manages an extensive and valuable assortment of property including
streets, parks, beaches, public buildings and service facilities. The City also owns or
ground leases and/or operates a yacht basin, resort hotel and apartment property, a
luxury residential development and various other income-producing properties. Much
of the income property is tidelands, filled tidelands or waterfront. Unencumbered fee
value of income property is substantial.
As owner/manager of property, the City is the steward of a public trust, and state law
requires the City to maximize its returns on state -managed property or be subject to a
charge of making a gift of public funds. Nevertheless, the City Council recognizes the
importance of this property not only as a revenue generator, but also as a means to
provide otherwise financially less feasible uses and facilities that benefit the community.
In managing its property, the City will continually evaluate the potential of all City
owned property to produce revenue. This may include leasing or licensing unused land,
renting vacant space, and establishing concessions in recreation areas or other similar
techniques. The City Council will evaluate the appropriateness of establishing new
income generating opportunities on City controlled areas using sound business
principles and after receiving input from neighbors, users and the public.
The policy of the City Council is that income and other property be held and managed in
accordance with the following:
A. Whenever a lease, license, management contract, concession or similar action
regarding income property is considered by the City, an analysis shall be
conducted to determine the maximum or open market value of the property. This
analysis shall be conducted using appraisals or other techniques to determine the
highest and best use of the property and the highest income generating use of the
property.
B. All negotiations regarding the lease, license, management contract, concession, or
similar action regarding income property shall include review of an appraisal or
analysis of the use being considered for the property conducted by a reputable and
independent professional appraiser, real estate consultant, or business consultant.
C. The City shall seek, whenever practical and financially advantageous, both in the
short and long term, to operate or manage all property and facilities directly with
City staff or contractors, provided staff have the expertise needed to competently
do so, or to oversee the work of contractors.
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F-7
D. In most negotiations regarding the lease, license, management contract,
concession, or similar action regarding an income or other property, the City shall
seek revenue equivalent to the open market value of the highest and best use; and,
whenever practicable the City shall conduct an open bid or proposal process to
ensure the highest financial return.
E. However, in some circumstances the City may determine that use of a property by
the public for recreational, charitable or other nonprofit purpose is preferred and
has considerable public support, in which case the City may determine that non-
financial benefits justify not maximizing revenue from such property. In such
circumstances, the City has a vested interest in ensuring that the lessee of such
property operates the activities conducted on or from the property in the manner
that has been represented to the City throughout the duration of any lease or
contract with the City.
F. Whenever less than the open market or appraised value is received or when an
open bid process is not conducted, the City shall make specific findings setting
forth the reasons thereof.
Such findings may include but need not be limited to the following:
1. The City is prevented by tideland grants, Coastal Commission guidelines
or other restrictions from converting the property to another use.
2. Redevelopment of the property would require excessive time, resources,
expertise and costs, which would outweigh other financial benefits.
3. Converting the property to another use or changing the operator, manager,
concessionaire, licensee, or lessee of the property would result in excessive
vacancy, relocation or severance costs, real estate commissions, tenant
improvement allowances, expenses or rent concessions which would
outweigh other financial benefits.
4. Converting residential property to another use or opening residential leases
to competitive bid would create recompensable liabilities and other
inequities for long-term residents.
5. The property provides an essential or unique service to the community or
a clearly preferred use that enjoys substantial support in the community
that might not otherwise be provided were full market value of the
property be required.
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F-7
6. The property serves to promote other goals of the City such as affordable
housing, preservation of open space, uses available to the public or marine
related services.
7. If the lessee is not (a) a statewide or national nonprofit organization, or (b)
a public entity or subdivision thereof, then the City finds that the By -Laws
and charter documents of such lessee (i) establishes a procedure wherein
the election of directors of such lessee is accomplished by an open,
democratic and transparent process that allows members to vote, (ii) has a
governance and operational structure that is consistent with best practices
for non-profit public benefit corporations as determined by the City
Council, and (iii) cannot be amended to affect subparts (i) or (ii) without the
prior written consent of the City as lessor.
G. Generally, lengths of licenses, leases, management contracts, concessions, or
similar agreements will be limited to the minimum necessary to meet market
standards or encourage high quality improvements and will contain appropriate
reappraisal and inflation protection provisions. Also, all agreements shall contain
provisions to assure complete audits periodically through their terms.
H. All negotiations regarding the license, lease, management contract, concession or
similar action regarding income property shall be conducted by the City Manager
or his/her designee under the direction of any appropriate City committees.
I. To provide an accurate accounting of actual net revenues generated by the City's
income property, all costs directly attributable or allocable to the management of
a specific income property shall be charged against the gross revenues collected
on that property in the fiscal year the costs are incurred. Costs so chargeable
include, but are not limited to, property repairs and maintenance, property
appraisals, and consultant fees, as authorized by the City Council, City Manager,
or by this Income Property Policy.
J. The City Manager or his/her designee is authorized to sign a license, lease,
management contract, concession, or similar agreement or any amendment
thereto, on behalf of the City. Notwithstanding the foregoing, the City Manager
or his/her designee, or a City Council member, may refer any license, lease,
management contract, concession or similar agreement or any amendment
thereto, to the City Council for its consideration and/or action.
K. The City's portfolio of quality income producing properties adds an element of
diversification to a portfolio otherwise invested primarily in financial assets.
Certain of those income properties are restricted from sale by their terms of grant,
state agency regulations or rules, other federal and state guidelines, private
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F-7
covenant or agreement or otherwise. For those properties not so restricted from
sale, an analysis shall be prepared to determine the following prior to such
income producing property being offered for sale:
1. The maximum open market value of the City's interest in the property in
its as is condition.
2. If the property is in an important location, a determination of the possible
future consequences of the City no longer controlling that property.
3. If the current rent is contractually low and significant rent increases are
likely within a finite period.
4. The likelihood of significant increases in the ability of the property to
generate income after the expiration of any current lease of the property.
5. The likelihood of a lease extension being requested by the tenant and the
ability to substantially increase rents or require significant improvements
to enhance the utility and the value of the property as consideration for
granting such an extension.
6. The value of the revenue stream from (i) lease income over the life of an
existing lease and/or (ii) likely lease revenue if an existing lease were to be
renewed or the property re -let to a different tenant; and/or (iii) lease
income from the property if it were to be converted to its highest and best
use, compared with the financial benefits of the use of the proceeds of a sale
and if, considering the totality of the circumstances, such use of the
proceeds of a sale is preferable to retaining the property in question.
Adopted - July 27,1992
Amended - January 24,1994
Amended - February 27,1995
Amended - February 24,1997
Amended - May 26,1998
Amended - August 11, 2009
Amended - May 14, 2013
Amended - February 12, 2019
Formerly F-24
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