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HomeMy WebLinkAbout16 - Revocable License Agreement for Temporary Use of City Property for a Certified Farmers' Market at McFadden Square and Newport PierQ �EwPpRT c 9C/FOR TO: FROM: CITY OF NEWPORT BEACH City Council Staff Report September 9, 2025 Agenda Item No. 16 HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL Seimone Jurjis, Assistant City Manager, 949-644-3001, sjurjis@newportbeachca.gov PREPARED BY: Lauren Wooding Whitlinger, Real Property Administrator - 949-644- 3236, Iwooding@newportbeachca.gov TITLE: Revocable License Agreement with Sprouts of Promise Foundation for Temporary Use of City Property for a Certified Farmers' Market at McFadden Square and Newport Pier ABSTRACT: Since 2015, a certified farmers' market has operated each Sunday morning in McFadden Square at the base of the Newport Pier. The current license agreement for the market is set to expire September 30, 2025. In compliance with the City of Newport Beach's procurement requirements, a Request for Proposals (RFP) was published in December 2024 to identify a qualified operator for continued operation of the market. Only one proposal was received, from the current operator. Sprouts of Promise Foundation was selected as the most qualified and responsive proposer. For the City Council's consideration is a new, five-year Revocable License Agreement (Attachment A) with Sprouts of Promise Foundation for operation and management of the certified farmers' market at McFadden Square and Newport Pier, including a request to waive City Council Policy F-7. RECOMMENDATIONS: 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) Authorize the City Manager and City Clerk to execute the Revocable License Agreement between the City of Newport Beach and Sprouts of Promise Foundation for Temporary Use of the City Property for the Certified Farmers' Market at McFadden Square and Newport Pier in a form substantially similar to the agreement attached to the staff report; and c) Approve a waiver of City Council Policy F-7 — Income and Other Property based on the findings contained in this staff report and the Agreement that charging less than fair market rent promotes the City's goals to provide essential or unique services to the community that cannot otherwise be provided if full market rates were charged. 16-1 Revocable License Agreement with Sprouts of Promise Foundation for Temporary Use of City Property for a Certified Farmers' Market at McFadden Square and Newport Pier September 9, 2025 Page 2 DISCUSSION: Since 2015, a certified farmers' market has operated on the City -owned property known as McFadden Square Plaza at the base of the Newport Pier on the Balboa Peninsula. The market, managed by Sprouts of Promise Foundation, was relocated to McFadden Square from the public right-of-way on Via Oporto at Central Avenue after operating there for more than four years due to extensive construction in the Lido Marina Village area. The weekly Newport Pier Certified Farmers' Market (Market) operates on the City -owned pedestrian plaza at the base of the Newport Pier and the corner of West Balboa Boulevard and McFadden Place, adjacent to the West Ocean Front public parking lot, as shown in Figure 1 below. 4, ME Riv 0 _& -it' Figure 1 — location of current market The Market runs every Sunday morning from 8 a.m. to 2 p.m., with set-up starting no earlier than 7 a.m. and tear -down and clean-up completed by 4 p.m. The Market layout takes the various converging pedestrian and bike pathways into consideration so as not to impede the flow of traffic in the area (Attachment B). Under the current license agreement, the manager pays the City a license fee of $364.56 per month, or $4,374.72 per year. The Market is operating as a "certified farmers' market" with "certified producers" as defined by the California Code of Regulations [Title 3, 16-2 Revocable License Agreement with Sprouts of Promise Foundation for Temporary Use of City Property for a Certified Farmers' Market at McFadden Square and Newport Pier September 9, 2025 Page 3 Sections 1392.2(d) and 1392.2(e)] with the appropriate permits and approvals from the State of California Department of Agriculture and the Orange County Health Department. The current license agreement allows for up to 40 vendors, with participation each week averaging around approximately 40 vendors. Request for Proposals City Council Policy F-7 — Income and Other Property (Policy F-7) establishes the selection process for all tenants utilizing City -owned real property assets. In anticipation of the expiration of the current license, and in accordance with Policy F-7, the City published RFP No. 2025-32 in December 2024 to solicit bids for the use of City -owned property. The RFP was distributed through PlanetBids, the City's web -based procurement portal, and was also emailed to more than 150 companies involved in operating and managing community and farmers markets throughout Southern California. A mandatory pre -bid site walk was held on January 16, 2025, and proposals were due to the City by February 6, 2025. The purpose of the RFP was to solicit proposals from qualified operators interested in continuing the management and operation of the certified farmers' market at the Newport Pier. Market operators were asked to include the following in their proposals: 1. Their ability to provide a high quality, family -friendly certified farmers' market; 2. Their experience attracting high -quality vendors that are certified farmers or producers; 3. A comprehensive plan detailing the proposed market layout and vendor mix, with an information tent, a restroom, trash and recycling, and signage plan; and 4. Information about the operator's staffing and management of the necessary permits and licensing, safety and security, set-up and operating guidelines was also required, as well as the marketing and outreach capabilities. Selection Process Proposers were required to have a minimum of five years' experience delivering community or certified farmers' markets for local governments with knowledgeable and experienced staff. The proposers' ability to retain the mix and quality of products offered at the existing market was of particular concern to the panel. Proposals were reviewed by a staff panel and scored based on the following criteria: • Qualifications and Experience of the Firm • Qualifications and Experience of Key Personnel and Staffing • Method of Approach / Project Approach 16-3 Revocable License Agreement with Sprouts of Promise Foundation for Temporary Use of City Property for a Certified Farmers' Market at McFadden Square and Newport Pier September 9, 2025 Page 4 • Participating Vendors The City received one proposal to operate the McFadden Market. City staff conducted a thorough review of the proposal and determined the sole proposer, Sprouts of Promise Foundation, met the qualifications and requirements of the RFP and illustrated its capacity to successfully operate the McFadden Market, with a total weighted score of 2,740 out of 3,000 maximum points. Proposed Market Sprouts of Promise Foundation (Licensee) is the incumbent market operator and proposes to continue operating the farmer's market by retaining the existing vendors and producers and adding a limited number of new vendors to complement the existing offerings and meet the interests of the community. The Licensee will also allow a limited number of the vendors to offer unique "hot" food items available for consumption at the market, aimed towards not pulling business away from local retail establishments. With an emphasis on safety and security, appropriate permits will also be obtained from the Fire Department to ensure the safety of the food vendors that will be cooking onsite. The Licensee's proposed market layout and site plan is shown in Attachment B. City Council Policy F-7, Income and Other Property Due to the unique services provided to the community, and the income and operational limitations of managing a weekly market, a nominal amount of rent is proposed in the Agreement to offset some of the City's administrative costs. Staff believes the following findings can be made, as required by Policy F-7 (Attachment C) when less than fair market value rent is received in exchange for non -financial benefits, and a waiver is requested: 1. The Market provides an essential or unique service to the community that might not otherwise be provided if full market value rent of the property was required; and 2. With the proposed rent charged at less than fair market value, the use provides an important amenity to the City and might not otherwise be provided if full fair market value of the property were required. Revocable License Agreement The proposed terms of the Agreement are summarized below: 1. The initial term is 5 years, with one 5-year extension option, for a total possible term of 10 years, unless terminated earlier as provided by the Agreement. 2. A license fee in the amount of $6,000 per calendar year shall be paid by the Licensee, with payments submitted to the City each month. The license fee shall be adjusted by the change in the Consumer Price Index (CPI) each year upon the anniversary of the effective date of the Agreement. 16-4 Revocable License Agreement with Sprouts of Promise Foundation for Temporary Use of City Property for a Certified Farmers' Market at McFadden Square and Newport Pier September 9, 2025 Page 5 3. The Licensee shall be responsible for obtaining the necessary permits and approvals from state and local agencies to operate the Market and will be responsible for ensuring each of the vendors has the necessary permits and approvals for their individual businesses, including obtaining a City business license, if required. The requirement for a City business license shall be waived as a hardship for certified producers pursuant to Section 5.04.025 of the Newport Beach Municipal Code (NBMC). 4. The Market may operate every Sunday from 8 a.m. to 2 p.m., with setup beginning no earlier than 7 a.m. and tear -down completed by 4 p.m., and the site returned to its original condition free of trash and debris. 5. Setup of the Market shall include placement of traffic control bollards and signage as may be required by the City's Public Works and/or Fire Departments. 6. The Market operations must adhere to applicable federal, state and local laws and the operator shall obtain the necessary permits and approvals. 7. A Licensee representative shall be present onsite during each Market, from commencement of setup to completion of clean up. 8. Licensee shall provide certificates of insurance to the satisfaction of the City's risk manager, naming the City as additional insured. The Agreement has been reviewed by the City Attorney's Office and has been approved as to form. The Licensee has reviewed and approved the terms of the Agreement. FISCAL IMPACT: Revenues collected pursuant to the proposed Agreement, $6,000 per year as adjusted annually by the change in CPI, will continue to be posted to the General Fund (01050505) accounts in the Community Development Department and will be included in future years' budgets. ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action 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). 16-5 Revocable License Agreement with Sprouts of Promise Foundation for Temporary Use of City Property for a Certified Farmers' Market at McFadden Square and Newport Pier September 9, 2025 Page 6 ATTACHMENTS: Attachment A — Revocable License Agreement Attachment B — Market Site Plan Attachment C — City Council Policy F-7 16-6 Attachment A Revocable License Agreement 16-7 REVOCABLE LICENSE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND SPROUTS OF PROMISE FOUNDATION FOR TEMPORARY USE OF CITY PROPERTY FOR A CERTIFIED FARMERS' MARKET AT MCFADDEN SQUARE AND NEWPORT PIER THIS REVOCABLE LICENSE AGREEMENT FOR TEMPORARY USE OF CITY PROPERTY FOR A CERTIFIED FARMERS' MARKET ("Agreement") is made and entered into as of this 9t" day of September, 2025 ("Effective Date"), by and between the City of Newport Beach, a California municipal corporation and charter city ("City"), and Sprouts of Promise Foundation, a California nonprofit organization ("Licensee"), and is made with reference to the following: N---WW 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. 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)). C. Licensee 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. (hereinafter "Certified Farmers' Market") in Newport Beach since 2010. D. Licensee has requested that it be allowed to continue to operate the Certified Farmers' Market in the McFadden Square area at the Newport Pier on Sundays with certified and experienced organizations, vendors, participants and service providers (collectively, "Vendors"). E. In accordance with City Council Policy F-7, whenever 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 charging less than market value for this use provides an essential and unique service to the community that might not otherwise exist if full rent were required. Additionally, as the certified farmers' market may be located, in part, upon public tidelands and the rent is below fair market value, the City Council finds this use provides a public benefit to the people of California. This benefit comes from providing affordable access to healthy and sustainable food and greater access to the tidelands generally, making it a matter Sprouts of Promise Foundation Page 1 .: of statewide benefit. Without the reduced rent, these beneficial uses of the property might not provided were full market value of the property required. F. 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 public right-of-way that is owned by the City, bounded by West Balboa Boulevard and McFadden Place. This area is commonly known as McFadden Square and the Newport Pier, Newport Beach ("License Area"), as further depicted on Exhibit A, which is attached hereto and incorporated herein by reference, on Sundays for a Certified Farmers' Market. 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. 2.1 The purpose of this License is to allow for the operation of a Certified Farmers' Market within the License Area as depicted on Exhibit A. 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 discretion. 2.2 Acceptable ancillary activities include: Entertainment typical of a certified farmers' market, such as live music, face painter, balloon artist, seasonal characters (e.g., Santa Claus), etc. Community booths to allow participation of local organizations/businesses to take part in the community focused event (e.g., nonprofits, green initiatives, health awareness, local businesses). iii. 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.). Sprouts of Promise Foundation Page A-2 16-9 iv. Information tent to allow customers--and—visitor—an opportunity for the Licensee to answer questions and flake suggestions on potential new vendors. 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 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 and Vendors. 3.3 Licensee shall not allow any Vendor to participate in the Certified Farmers' Market until: (1) all appropriate permits, licenses and certifications are obtained; and (2) a copy of said permits are furnished to the Licensee (This includes, but is not limited to, a City business license and a temporary food facility permit from the Orange County Health Care Agency); and (3) a completed Liability Release Statement in accordance with Section 7.8 is received by License. 4.1 The term of this Agreement shall commence on October 1, 2025, and shall continue for a five (5) year term, 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 Five Hundred Dollars and 00/100 ($500.00) 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 the first day of the first month following the Effective Date . The License Fee shall be pro -rated in the event of a partial month's use of the License Area at the beginning or end of the Term. 5.2 If Licensee fails to pay the License Fee within thirty (30) calendar days of the Due Date, Licensee shall pay a penalty in an amount equal to ten percent (10%) plus Sprouts of Promise Foundation Page A-3 16-10 interest in an amount equal to ten (10%) perc- nt per annum on th__e-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 (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)", for the Los Angeles -Long Beach -Anaheim Metropolitan 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. The maximum adjustment increase to the License Fees, for any year where an adjustment is made pursuant to this Section, shall not exceed two and one-half percent (2.5%) of the License Fees in effect immediately preceding such adjustment. Licensee shall comply with the following conditions prior to the commencement of use of the License Area: 6.1 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. Licensee shall require the same of Vendors. 6.2 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. 6.3 The Licensee shall direct Vendors to park their vehicles in the nearby public parking lots, in compliance with posted parking rules and rates, as determined and approved by the City's Community Development Director. 6.4 An initial site plan and/or floor plan showing the layout of the Certified Farmers' Market sales areas, and such other information has been reviewed by the City's Community Development Department, Fire Department, and Public Works Department, and is attached in Exhibit A. Prior to implementing any modifications to the site plan during the Term, Licensee shall submit any proposed changes to the market layout to the City for review and approval by the City's Community Development Department, Fire Department, and Public Works Department and shall obtain any new or modified permits that may be necessary, at Licensee's sole cost and expense. The Fire Department's Sprouts of Promise Foundation Page A-4 16-11 Conditions of Approval are attached hereto as Exhibit B and incorporated herein by this reference. 6.5 Licensee shall follow the marketing plan and reporting requirements for the Certified Farmers' Market, and submit proof thereof to the City as further detailed in the Marketing Plan attached hereto as Exhibit C and incorporated herein by this reference. 7. CONDITIONS OF OPERATION Licensee shall comply with the following conditions of operation during use of the License Area: 7.1 Licensee may utilize the License Area on Sundays from 7:00 a.m. until 4:00 p.m. Set up activities for the certified farmers' market shall not occur prior to 7:00 a.m. The certified farmers' market may operate each Sunday from 8:00 a.m. to 2:00 p.m., respectively. Licensee shall ensure that the License Area is returned, clean and free of debris, to its original condition no later than 4:00 p.m. on the same day. City reserves the right to modify the hours of set up and operation, in the City's sole and absolute discretion. 7.2 Notwithstanding the schedule outlined in Section 7.1, 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 Sundays, without any compensation or reimbursement to Licensee. 7.3 Licensee or its representative shall be present during each and every certified farmers' market from commencement of set up to the completion of clean up. 7.4 The storage of materials is expressly prohibited in the License Area beyond the approved hours of use of the License Area. 7.5 Licensee shall recruit and retain vendors for the certified farmers' market and verify that all individual vendors that are: "Certified producers" or "producers" within the meaning of California Code of Regulations Title 3, Sections 1392.2(d) and 1392.2(e) and ensure that all vendors adhere to all applicable rules and regulations concerning product quality and that the products offered for sale by vendors are pest and disease free. Selling food or providing free food tastings for onsite consumption obtain a temporary food facility permit pursuant to Health and Safety Code Section 114380 et seq, if applicable. 7.6 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 Sprouts of Promise Foundation Page A-5 16-12 producers to obtain a business license. All other vendors must corn ply_withthe-Municipal _ Code and obtain the necessary business licenses. 7.7 Licensee shall not allow any participant and/or service provider to participate in the certified farmers' market until a 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. 7.8 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 an 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. 7.9 Licensee shall annually, on or before March 1, provide to the City a current roster of vendors. 7.10 No more than fifty (50) vendors shall display and/or sell food or products at the certified farmers' market and shall be in compliance with fire and health department regulations, including spacing, Vendor grouping requirements, and separation limits. Entertainers, community booths and local artisans shall be included within the fifty (50) vendor limit. The Licensee may locate up to an additional ten (10) vendors on the pier as depicted on Exhibit A-4 during seasonal market events or other special events promoted by the Licensee. 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. 7.11 Licensee shall be responsible for setup, operation, maintenance, sanitation and cleanup of the certified farmers' market. Set up shall include placement of vendors in accordance with the approved site plan. Licensee 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 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 7.12 Licensee shall observe community noise restrictions asset 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. 7.13 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 Sprouts of Promise Foundation Page A-6 16-13 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. 7.14 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 tobacco related products shall be prohibited unless associated with a law enforcement awareness program. 7.15 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 plan. 7.16 All loading and unloading of merchandise, vendor booths and other related improvements shall take place within the License Area. 7.17 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). 7.18 Licensee may permit vendors to provide tastings of their products to attendees, subject to applicable law. Tastings are limited to sample -sized portions and shall not constitute full servings for consumption on -site, except as otherwise authorized by law. 7.19 Licensee may allow no more than five (5) vendors to sell food items for on - site consumption. At its sole and absolute discretion, the City reserves the right to require the Licensee to reduce the number of vendors selling food for onsite consumption and/or restrict on -site food consumption to tastings only, by providing the Licensee ten (10) calendar days' prior written notice. 7.20 Only a Certified Farmers' Market may be operated in the License Area. Licensee may not operate or conduct any other event or enterprise unless Licensee receives required additional approvals from the City. 7.21 Sale of alcoholic beverages is permitted at the certified farmers' market only in compliance with California Assembly Bill No. 2488, Chapter 98, Section 23399.4, and any other applicable state or local laws and regulations. All alcoholic beverage sales must be limited to retail sales for off -site consumption. On -site consumption of alcoholic beverages is prohibited, except as otherwise authorized by law for tastings, which must comply with the restrictions set forth under AB 2488 and related regulations. 7.22 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 the Certified Farmers' Market create the need for additional police services including City traffic officer services, as Sprouts of Promise Foundation Page A-7 16-14 determined by the City's Chief of Police, the Licensee shall reimb-urseAh_eGit_y for -these additional police services. 7.23 Licensee shall comply with all traffic regulations established for the operation of the certified farmer's market by the City Traffic Engineer, which are attached as Exhibit E to this agreement and incorporated herein by this reference. Throughout the term of this License, 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 its 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 five (5) calendar days' prior written notice to Licensee. 7.24 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. 7.25 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. 7.26 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. 8. TERMINATION OF LICENSE 8.1 Notwithstanding the term of this Agreement, this License may be terminated during the term or any extended term in the following manner: By Licensee: At any time, without cause upon the giving of thirty (30) calendar days written notice of termination to City; By City: At any time, without cause upon the giving of thirty (30) calendar days written notice of termination to Licensee; or iii. If, after written notice of 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. 9. 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 Sprouts of Promise Foundation Page A-8 16-15 Administrator or their authorized representative shall represent City in all matters pertaining to this License. 10. INDEMNITY AND LIABILITY FOR DAMAGES 10.1 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 may be 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 arising from the sole 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 policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Licensee. 10.2 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. 11. 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 F, and incorporated herein by reference. 12. PROHIBITION AGAINST ASSIGNMENT AND TRANSFER This License shall not be assigned or transferred without the prior written approval of City which approval may be withheld in the City's sole and absolute discretion. Any assignment or transfer made without the City's prior written consent shall be null and void. Sprouts of Promise Foundation Page A-9 16-16 13. CONFLICT OF INTE 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 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 _ 14. NOTICE 14.1 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 Newport Beach, CA 92660 14.2 All notices, demands, requests or approvals from City to Licensee shall be addressed to Licensee at: Sprouts of Promise Foundation Attn: Mark Anderson 18282 Marbrise Abanita Drive Murrieta, CA 92562 Phone: (310) 699-6134 15. STANDARD PROVISIONS 15.1 Recitals. City and Licensee acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 15.2 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 and be subject to approval of the License Administrator. Sprouts of Promise Foundation Page A-10 16-17 15.3 Waiver. A waiver b 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 of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 15.4 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. 15.5 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. 15.6 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. 15.7 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. 15.8 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. 15.9 Taxes. Licensee acknowledges that the License granted herein may be subject to possessory interest taxes. 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. 15.10 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. 15.11 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. 15.12 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] Sprouts of Promise Foundation Page A-11 16-18 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:/Zf�/z5 By: Aaron 6b. Harp City Attorney ATTEST: Date: By: Molly Perry Interim City Clerk Attachments CITY OF NEWPORT BEACH, a California municipal corporation Date: Bv: Grace K. Leung City Manager LICENSEE: Sprouts of Promise Foundation, a California nonprofit organization Date: By: Mark Anderson President Exhibit A: Depiction of License Area and Site Plan Exhibit B: Fire Department Conditions of Approval Exhibit C: Marketing Plan Exhibit D: Vendor Liability Release Statement Exhibit E: Traffic Regulations Exhibit F: Insurance Requirements Sprouts of Promise Foundation Page 12 16-19 EXHIBIT A LICENSE ARI Sprouts of Promise Foundation Page A-1 16-20 NEWPORT 6EACN FARMERS' MARKET — MCFADDEN PtAIA — SONDAYS ■ 5x5 Info Booth ❑ ioxio Non Hot Food Booth ❑ ioxio Hot Food Booth Fire Extinguisher ADA Ramp - Trees Fire Hydrant 201b propane tank Local Businesses 03 AlwWwabo.. Pier Beach 16-21 Exhibit A-2 '.. �A.""''� r; ];. � 9F„ 'iq %� k '4i, A�F`ra. �' .tf i•` '��� � s ate, `� f'�._�--.•+�{,rt _.. �, iwl �,'� i 3.M.l�E I. •i'� . � `,¢'� c \ y \.+. � r.� t -f` .`ils� 'c/ ' .e 14* r4 s i„C " ti �i�c " fir': ^� • ` _ �+�;; jss'tim/��t'� l ?{ a Z r � � _ k�A �. .alp -. P � 0. ,-A ,!'{ii � _ ,� •y �'" -. � �.''x, t� s 41`{ * I •' ... n r.- / '•fir . .��..� `.Xt r 00 Ir lid RAI pCEAN y, . AY G `may}` - CCEAWj� -.ONirq�CEVW` McFadden Square & Newport Pier ` T Newport Beach Disclaimer: Every reasonable effort has been made to assure the accuracy of the data provided, however, The City of GAS Newport Beach and its employees and agents disclaim any and all responsibility from or relating to �E.wa°Rr any results obtained in its use. " 0 1,000 2,000 n Imagery: 2009-2013 photos provided by Eagle J c iP a Feet Imaging www.eagleaerial.com qC/ FORN 4/9/2015 16-22 00� Newport Beach GIS r) McFadden Souare Exhibit A-3 X N 4f op AP ZZ 4 FN-ewport f i 0 0 200 400 Feet Disclaimer: Every reasonable effort has been made to assure the accuracy of the data provided, however, The City of Newport Beach and its employees and agents disclaim any and all responsibility from or relating to any results obtained in its use. Imagery: 2009-2013 photos provided by Eagle Imaging www.eagleaerial.com 16-23 Exhibit A-4 y Newport Beach GIS o , 0 100 200 ' "oCFeetnt��Pl'.. Disclaimer: Every reasonable effort has been made to assure the accuracy of the data provided, however, The City of Newport Beach and its employees and agents disclaim any and all responsibility from or relating to any results obtained in its use. Imagery: 2009-2013 photos provided by Eagle Imaging www.eagleaerial.com 16-24 Exhibit A-5 sir aj0� if ; '~ l O 106 01 4. ,� � yr{ • y �// O Y . f *. ro \� s & 0 Pedestrian and Bikei. y f o Paths of Travel o (exhibitor booths must y j 08 not encroach into y these areas) Newport Beach Disclaimer: Every reasonable effort has been made to assure the accuracy of the data provided, however, The City of GAS Newport Beach and its employees and agents disclaim any and all responsibility from or relating to any results obtained in its use. 0 40 80 t _ Imagery: 2009-2013 photos provided by Eagle " Imaging www.eagleaerial.com Feet 16-25 FIRE DEPARTMENT CONDITIONS OF APPROVAL 1. Licensee shall obtain any necessary Fire Department permits that may be required based on the market layout shown on the Site Plan. Prior to implementing any modifications to the Site Plan, Licensee shall obtain any new or updated permits that may be required by the Fire Department. 2. Do not block entrances or exits from any building. Do not block Fire Department access -to any suppression fire su - equipment. 3. 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. 4. Obey all City, County and State regulations. Comply with the lawful orders of Police and Fire personnel, or other government officials. 5. 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. 6. Inspections required on all tent permits. If tent permit is required, inspection fees apply. 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. Sprouts of Promise Foundation Page B-1 16-26 16. Cooking and heating equipment shall not be located within 10 feel -of exits —or combustible materials. 17.Outdoor cooking that produces sparks or grease -laden vapors shall not be performed within 20 feet from a temporary membrane structure tent or canopy. 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. If a pre -event inspection or inspector stand-by services are required, fees shall be charged accordingly. Sprouts of Promise Foundation Page B-2 16-27 EXHIBIT C MARKETING PLAN Sprouts of Promise Foundation Page C-1 16-28 EXHIBIT C MARKETING PLAN • Maintain an attractive website with general market information (market hours, location, vendor recruitment info, e-newsletter sign-up, etc.). • Monthly E-Newsletter distribution (celebrate seasonal produce, highlights market vendors, and promotes community happenings). • Collaborate with community organizations to provide opportunities for cross - promotion and help us engage new audiences. • Market Rewards (eg., free raffles, loyalty cards, etc.). • Social Media: engage in relevant platforms for our markets (currently focused on Instagram and Facebook). Promote vendor & customer interaction. Open cross -collaborations with the City. 16-29 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 SPROUTS OF PROMISE FOUNDATION, a California 501 c3 nonprofit organization, to allow Sprouts of Promise to use the City owned public right-of-way located near West Balboa Boulevard and McFadden Place , within the area commonly known as McFadden Square and the Newport Pier, 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 I 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, Sprouts of Promise Certified Farmers' Market, Sprouts of Promise Foundation, 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, Sprouts of Promise Foundation Page D-1 16-30 sprains, 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, Sprouts of Promise Certified Farmers' Market, Sprouts of Promise Foundation, the market managers or the County of Orange, its officials, officers, agents, 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 RELEASE O LIABILITY. SIGNATURE ON THIS DOCUMENT,, WAIVING MY RIGHTS, INCLUDING ANY RIGHTS I MAY HAVE AGAINST THE RELEASED ,D PARTIES Dated: Signature Printed Name Witness Original: To Records Sprouts of Promise Foundation Page D-2 16-31 EXHIBIT E TRAFFIC REGULATIONS 1. Prior to implementing any modifications to the Site Plan, Licensee shall submit the changes to the market layout to the Public Works Department for review and approval. 2. All vehicles shall be lawfully parked. No fire lane exemption. 3. No exclusive use of street, alleys, or sidewalks, except in the License Area pursuant to the terms of this Agreement. - - - 4. No exclusive use of public parking areas. 5. No activities permitted in any portion of public street, sidewalk, or alley, except in the License Area pursuant to the terms of this Agreement. & No posting of promotional signs permitted on a portion of public property, including trees, utility poles, street signs unless otherwise approved by relevant City staff. 7. Activities shall not create a pedestrian or traffic hazard. Prevent crowds from standing in streets and from blocking sidewalks. 8. Complete clean-up of the License Area is the responsibility of the Licensee. 9. All directional signage must be set-up on the day of the Certified Farmer's Market and removed immediately following the event, pursuant to the terms of Section 7 of this Agreement. 10. Do not block entrances or exits from any building. Do not block Fire Department access to any fire suppression equipment. 11. Licensee shall ensure all traffic control measures are installed no later than one - hour before the start of the Certified Farmer's Market and removed immediately following the event, pursuant to the terms of Section 7 of this Agreement. Sprouts of Promise Foundation Page E-1 16-32 EXHIBIT F 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. Licensee shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its City Council, boards and commissions, officers, agents, volunteers, and employees. C. General Liability Insurance. Licensee shall maintain commercial general liability insurance, and if necessary excess/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 one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) general aggregate. The policy shall cover liability arising from bodily injury, property damage, product liability, 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. If required, the policy shall be endorsed to include affirmative coverage for Sexual Abuse/Molestation and corporal punishment, or a separate policy shall be obtained with a limit of not less than one million dollars ($1,000,000) per occurrence and three million dollars ($3,000,000) general aggregate. Sprouts of Promise Foundation Page F-1 16-33 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 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. E. Professional Liability Insurance. If determined by the City's Chief of Police for Licensee to secure a private security guard or guards, Licensee shall require and verify that contractor(s) maintain professional liability insurance - with limit of -not less than two million -dollars ($2l000,000)-per occurrence and four million dollars ($4,000,000) in the aggregate. The policy shall include coverage for assault and battery, abuse and molestation, care custody and control, and false arrest. F. Excess/Umbrella Liability Insurance. If any excess or umbrella liability policies are used to meet the limits of liability required by this contract, then said policies shall be "following form" of the underlying policy coverage, terms, conditions, and provisions and shall meet all of the insurance requirements stated in this contract, including, but not limited to, the additional insured and primary & non-contributory insurance requirements stated herein. No insurance policies maintained by the City, whether primary or excess, and which also apply to a loss covered hereunder, shall be called upon to contribute to a loss until the Contractor's primary and excess/umbrella liability policies are exhausted. 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 City Council, boards and commissions, officers, agents, volunteers, and employees 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 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, its City Council, boards and commissions, officials, agents, volunteers, and employees shall be included as insureds under such policies. Sprouts of Promise Foundation Page F-2 16-34 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 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. 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 subcontractor fails to provide and maintain insurance as required herein, then City shall have Sprouts of Promise Foundation Page F-2 16-35 _ the right but not the obligation, to purchase such insurance, to terminate this Agreement, or to suspend-Ucensee's rigo proceed unfil proper evidence of insurance is provided. G. Timely Notice of Claims. Licensee shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Licensee's performance under this License, 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-lnsurance.__Licensee_sha l also p-rocure 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. Vendor Insurance. The Licensee shall require and verify that all Vendors maintain insurance meeting all the requirements stated herein, excluding professional liability. Vendors shall maintain commercial general liability covering bodily injury, property damage, product liability, and personal and advertising injury, with limits of not less than one million dollars ($1,000,000) per occurrence and in the aggregate, or such other limits as the City may reasonably require. A copy of the insurance policy shall be provided to City upon request. Vendors shall 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 Sprouts of Promise Foundation Page F-2 16-36 Attachment B Market Site Plan 16-37 Exhibit A-1 E 1 l El 1:1r-1 LIB Pier ❑ 5x5 Info Booth ❑ i0xlo Non Hot Food Booth ❑ i0xlo Hot Food Booth Fire Extinguisher ADA Ramp Trees Fire Hydrant © 2011) propane tank Local Businesses 0 0 Grass Restrooms Beach 16-38 16-39 •r to �a•. �t is i�•. .: R'�' 1.•:. •R R Spy 85 17 Nve Newport Beach GIS0 U0 200 400 CgLrFURH�F Feet 00 N •M ra • r99 .y J�-�i.-���71 zC rF:l� e I ; : r7OC �► / A( a. ,x Disclaimer: Every reasonable effort has been made to assure the accuracy of the data provided, however, The City of Newport Beach and its employees and agents disclaim any and all responsibility from or relating to any results obtained in its use. Imagery: 2009-2013 photos provided by Eagle Imaging www.eagleaerial.com 16-40 Newport Beach Disclaimer: Every reasonable effort has been made to assure the accuracy of the data provided, however, The City of GAS Newport Beach and its employees and agents disclaim any and all responsibility from or relating to any results obtained in its use. ° e 0 100 200 Imagery: 2009-2013 photos provided by Eagle U $ Feet Imaging www.eagleaerial.com ,gLrFDRH�F 4/9/2015 16-41 0 Newport Beach GIS ° 0 40 80 U T C,gLrFDR�y�F Feet ryo 490. Disclaimer: Every reasonable effort has been made to assure the accuracy of the data provided, however, The City of Newport Beach and its employees and agents disclaim any and all responsibility from or relating to any results obtained in its use. Imagery: 2009-2013 photos provided by Eagle Imaging www.eagleaerial.com 16-42 Attachment C City Council Policy F-7 16-43 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. 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. 1 16-44 F- 7 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: 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. 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. 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. 16-45 F- 7 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 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. History Adopted F-24 — 7-27-1992 Amended F-24 — 1-24-1994 Amended F-7 — 2-27-1995 Amended F-7 — 2-24-1997 Amended F-7 — 5-26-1998 Amended F-7 — 8-11-2009 Amended F-7 — 5-14-2013 Amended F-7 — 2-12-2019 Amended F-7 — 11-14-2023 3 16-46