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HomeMy WebLinkAbout06 - Corona del Mar Farmers Market License AgreementCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 6 May 12, 2009 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Planning Department Kathlyn Bowden, AICP, Economic Development Coordinator 949 - 644 -3230, kbowden @city.newport- beach.ca.us SUBJECT: Corona del Mar Farmers Market License Agreement RECOMMENDATION: Authorize the Mayor and City Clerk to sign the Corona del Mar Farmers Market License Agreement between the City of Newport Beach and Rick Heil, licensee, allowing the licensee the use of City property for a certified farmers market for a period of five (5) years. DISCUSSION: Background: The Corona del Mar Farmers Market was authorized by the City Council on May 13, 1996 and opened Saturday morning May 18, 1996 in the municipal parking lots at Marguerite Avenue and Bayside Drive. The market has been open Saturdays from 9:00 a.m. until 1:00 p.m. each week since that time. The existing Encroachment Agreement between Rick Heil, Operator of the Corona del Mar Certified Farmers Market, and the City of Newport Beach has operated on a one - year term since 1996, and has been renewed annually by the City Manager for the past ten years. The existing agreement is due to expire on May 17, 2009. Analysis The City's experience with the Corona del Mar Farmers Market during the past thirteen years has been favorable. The market managers have abided by the encroachment agreement, doing more than the minimum requirements to assure the success of the market. As a result, the Corona del Mar community has continuously and enthusiastically supported the market. CdM Farmers Market License Agreement May 12, 2009 Page 2 City staff from the Public Works, General Services, Recreation & Senior Services Departments and the Revenue Division have been able to work well with the Market and its operator; and no parking complaints have been reported in the past year of operation. The Manager has maintained positive relations with the managers of Bandera restaurant -- immediately adjacent to the Market- -and continues to work with the restaurant to ensure that cleanliness is maintained for the benefit of both parties. The City Attorney's Office has ruled that a license agreement. between the City of Newport Beach and the licensee, Rick Heil, is a more appropriate agreement mechanism than the 1996 encroachment agreement because it does not give the licensee a leasehold interest in the land. SUMMARY: Staff recommends the approval of the proposed License Agreement as provided in Attachment A. The new agreement would permit continued operation of the market through May 12, 2014 with an annual staff review of agreement compliance, insurance documentation, growers certificates, and agricultural and health permits. Environmental Review: Approval of the License Agreement is not a project as defined by CEQA. Funding Availability: Not applicable. Prepared by: Kathlyn ow AICP Economic DeveI pmen Coordinator Attachments: License Agreement Submitted by: S aron Wood Assistant City Manager License Area (Exhibit A) Waiver and Release of Claims and Indemnity Agreement (Exhibit B) City of Newport Beach - Farmers Market Agreement (Attachment 1 to Exhibit B) ATTACHMENT A LICENSE TO USE PROPERTY (CERTIFIED FARMERS MARKET) THIS LICENSE TO USE PROPERTY FOR A FARMERS MARKET ( "License ") is made and entered into as of this 12th day of May, 2009, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "), and Rick Heil, an individual, ( "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 has operated a Certified Farmers Market, in accordance with the Food and Agriculture Code Section 47000 et seq. implementing regulations, 3 California Code of Regulations Section 1392, et seq. (hereinafter "Certified Farmers Market") in Newport Beach pursuant to an Encroachment Agreement since 1996. C. Licensee has requested that he be allowed to continue to operate the Certified Farmers Market at the public parking lot owned by the City of Newport Beach located at the corner of Marguerite Avenue and Bayside Drive, and the smaller municipal lot across and including a portion of Larkspur Street, in Corona del Mar, Newport Beach, ( "License Area "), as depicted on attached Exhibit A. D. Licensee represents that he has the requisite skills and experience to operate a Certified Farmers Market. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. Term. The term of this License shall commence on the above written date, and shall terminate on the 12th day of May, 2014, unless terminated earlier as set forth herein. 2. License Fee. Licensee shall pay the City $130.00 per month which amount shall be due and payable on the first of each month. Late payments will be assessed a penalty charge of thirty (30) percent. 3. The Purpose of this License. The purpose of this License is to permit the operation of a Certified Farmer's Market within the License Area as is shown on Exhibit A, attached to this License and incorporated into this License by reference. Use of area outside the License Area will not be allowed unless prior permission is given in writing 1 by the City. Licensee agrees to restrict the use of the License Area only for a Certified Farmers Market, 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. 4. Conditions of License. Licensee shall comply with the following conditions prior to operation of the first Certified Farmer's Market pursuant to this License: A. Licensee shall procure and maintain any and all required certifications, permits, and licenses to operate the Certified Farmers Market. Licensee shall provide the City Planning Department with a copy of all required permits, 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. B. Licensee shall submit for review and obtain approval for all advertising and directional signage from the Public Works Department and the Planning Department. C. The Licensee shall work with adjacent commercial property owners to reach agreement over the use of parking facilities or develop a shared use parking plan, as determined and approved by the Planning Director. City Staff may assist in obtaining approval. D. Licensee shall submit a site plan and /or floor plan showing the layout of the Certified Farmer's market sales areas, for review and approval by the Planning Department and the Public Works Department. If the Planning Department and the Public Works Department determine that it is necessary, the Licensee shall obtain building permits and /or any other permits required for any proposed improvements. 5. Conditions of Operation. A. The Certified Farmers Market may operate each Saturday from 9:00 a.m. to 1:00 p.m., commencing on May 23, 2009. Licensee shall be present during each and every Certified Farmers Market from commencement of set up to the completion of clean up. Set up of the Certified Farmers Market shall not occur prior to 7:30 a.m. Licensee shall ensure that the License Area is returned, clean and free of debris, to its original condition by no later than 3:00 p.m. on the same day. City reserves the right to modify the hours of set up and operation, within the City's sole discretion. 2 B. On any occasion when Licensee cannot be present during the operation of a Certified Farmers Market, Licensee may provide a substitute qualified person to manage the operations, subject to prior written approval of the City. C. Licensee shall 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. D. Licensee shall recruit and retain certified producers and producers for the Certified Farmers Market, verify that individual vendors are certified producers within the meaning of 3 California Code of Regulations 1392.2 (e), or producers selling non - certifiable agricultural products produced by themselves, and ensure that 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. Licensee shall obtain a completed Liability Release Statement from each vendor, prior to participation in any Certified Farmers Market, in the form of Exhibit B attached to this License. Licensee shall not allow any person or organization to participate in the Certified Farmers Market until a completed application and Liability Release, is received by City. E. No more than 40 vendors shall display and /or sell products at the Certified Farmers Market. No additions, enlargements or modifications of uses or structures within the License Area shall be allowed without prior approval of the City. F. Licensee shall be responsible for setup, operation, maintenance, sanitation and clean up of the Certified Farmers Market as set forth below: (i) Set up shall include placement of vendors in accordance with the approved site plan; (ii) Operation shall be conducted in accordance with 3 California code of Regulations, Section 1392.1, et seq., and within the guidelines set forth in the State of California Department of Agricultural marketing plan; (iii) 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 and the City of Newport Beach. G. All loading and unloading of merchandise, vendor booths and other related improvements shall take place within the License Area. 3 H. 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). I. Food items shall not be processed, cooked or packaged on site. Prepared food items shall not be sold for on -site consumption. J. 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. K. Sale or consumption of alcoholic beverages is not permitted at the Certified Farmer's Market. L. The Certified Farmer's Market shall not create a significant impact to existing City police services, as determined by the City's Chief of Police. The Licensee may be required to secure a private security guard or guards and/or reimburse the City for 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. M. Licensee shall comply with all traffic regulations established for the operation of the Certified Farmers Market by the City Traffic Engineer. N. 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 License; and (iii) not bring or use any Hazardous Materials, as defined by state or federal law, on the License Area. 6. Termination of License. Notwithstanding the term of this License, 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) days written notice of termination to City; or B. By City: At any time, without cause upon the giving of thirty (30) days written notice of termination to Licensee; or C. If, after written notice of default to Licensee of any of the terms or conditions of this License, Licensee fails to cure or correct the default within 10 days of receipt of written notice, City may immediately terminate the License. 7. Administration. This License will be administered by the Planning Department. Kathlyn Bowden shall be the Project Administrator and shall have the authority to act for City under this License. The Project Administrator or his /her authorized representative shall represent City in all matters pertaining to this License. 0 8. Indemnity & Liability for Damages. A. To the fullest extent permitted by law, 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 License, any work performed or services provided under this License including, without limitation, defects in workmanship or materials or Licensee's presence or activities conducted that relate in any way to this License (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 License. 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. B. 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 License, for such time as this License is in effect. 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. 9. Insurance. Without limiting Licensee's indemnification of City, and prior to commencement of the Certified Farmers Market, Licensee shall obtain, provide and maintain at its own expense during the term of this License, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Licensee shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City at all times during the term of this License. 5 B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact the 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. D. Coverage Requirements. i. Workers' Compensation Coverage. Licensee shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Licensee shall require each contractor or subcontractor, as applicable, to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the contractor's and subcontractor's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non - payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Licensee for City. ii. General Liability Coverage. Licensee shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this License, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage. To the extent automobiles, trucks, or other motor vehicles are used in connection with the operation of the Certified Farmers Market, Licensee and each vendor shall certify and provide proof of automobile insurance covering activities related to the Certified Farmers Market in an amount satisfactory to the City's Risk Manager. E. Endorsements. Each general liability policy shall be endorsed with the following specific language: C. i. The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Licensee. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Licensee's operations. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. ' The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non - payment of premium) written notice has been received by City. F. Timely Notice of Claims. Licensee shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Licensee's performance under this License. G. Additional 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. 10. Independent Relationship. It is understood that Licensee is not an agent or employee of City. The manner and.means of operating the Certified Farmers Market are under the control of Licensee, except to the extent they are limited by statute, rule or regulation and the expressed terms of this License. Nothing in this License shall be deemed to constitute approval for Licensee or any of Licensee's employees or agents, to be the agents or employees of City. Licensee shall have the responsibility for and control over the means of performing the work, provided that Licensee is in compliance with the terms of this License. Anything in this License that may appear to give City the right to direct Licensee as to the details of the performance or to exercise a measure of control over Licensee shall mean only that Licensee shall follow the desires of City. 11. Cooperation. Licensee agrees to work closely and cooperate fully with City and any other agencies that may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Licensee in regards to this License. 12. City Policy. Licensee shall discuss and review all matters relating to this License with City representatives in advance of all critical decision points to ensure the Certified Farmers Market proceeds in a manner consistent with City goals and policies. 13. Prohibition against Assignment and Transfer. This License shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City which approval may be withheld in the City's sole discretion. 14. Conflict of Interest. The Licensee or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (a) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this License, 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. Failure to do so constitutes a material breach and is grounds for immediate termination of this License 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. All notices, demands, requests or approvals to be given under the terms of this License 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: Attn: Kathlyn Bowden Planning Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92663 Phone: 949 -644 -3230 Fax: 949 -644 -3224 All notices, demands, requests or approvals from City to Licensee shall be addressed to Licensee at: Attn: Rick Heil Corona del Mar Certified Farmers' Market P.O. Box 2781 Capistrano Beach, CA 92626 Phone: 949 - 361 -0735 Fax: 949 -361 -8748 16. 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 Project Administrator and City. 17. 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 of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 18. Integrated Agreement. This License 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. 19. Interpretation. The terms of this License 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 License or any other rule of construction which might otherwise apply. 20. Amendments. This License 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, 21. Severability. If any term or portion of this License is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this License shall continue in full force and effect. 22. Controlling Law and Venue. The laws of the State of California shall govern this License and all matters relating to it and any action brought relating to this License shall be adjudicated in a court of competent jurisdiction in the County of Orange. E 23. 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. 24. No Third Party Rights. The Parties intend not to create rights in or grant remedies to, any third party as a beneficiary of this License, or of any duty, covenant, obligation or undertaking established herein. IN WITNESS WHEREOF, the parties have caused this License to be executed on the day and year first written above. APPROVED AS TO FORM: CITY OF NEWPORT BEACH, OFFICE OF THE CITY ATTORNEY: A Municipal Corporation By: Assistant City Attorney ATTEST: By: Leilani Brown, City Clerk W11 By: Mayor LICENSEE: By: (Corporate Officer) Title: Print Name: 0 (Financial Officer) Title: Print Name: Ba�s,d� L F ?tu• FtL ✓. L-a. r-7 FTe% F jrvv FTE ✓. _I w R2s�aur ar�- PC- H r-,¢u. I'r¢u x C, I Exhibit A EXHIBIT B Corona del Mar Certified Farmers Market P.O. Box 2781, Capistrano Beach, CA 92626 949 - 361 -0735 Governing Rules and Regulations for the Corona del Mar Certified Farmers Market It is agreed that all vendors including any representatives or employee thereof shall be responsible for the care, maintenance, and upkeep of any and all space allocated by the Corona del Mar Certified Farmers Market. LIABILITY RELEASE STATEMENT I also understand that the market's insurance company and the City require me to sign a liability release statement, attached hereto as Attachment 1, which I agree to execute and have executed by my representatives and employees prior to taking part in the Farmers Market The vehicle or vehicles that I used at the market are currently insured with the following insurance company. AUTO INSURANCE COMPANY I hereby state that I have read, understand, and agree to follow all rules and procedures outlined in the Governing Rules and Regulations, a copy of which has been given to me. I also understand that failure to conform to said rules and guidelines may result in the privilege of my participation in the market being revoked. Grower's Signature Grower's Name (printed) RETURN WITH APPLICATION Date r_' CONDITIONS OF PARTICIPATION: (DUPLICATE FOR YOUR RECORDS). t. Vendor shall provide his own equipment, supplies, or other power that may be required. 2. Market will be held rain or shine. 3. Fanner shall maintain his assigned space in a neat and orderly manner, and shall minimize hazards to himself, to his products, and to the public. At the end of the day, farmer shall clean his area, leaving it as neat as when he arrived. 4. Farmer shall be responsible for his own sales, possess a resale number (i.e. nursery), make provision for accepting cash as is his usual practice. _ 5. DISCLAIMER: The above information is correct to the best of my knowledge. I have read the Application and if my application is accepted, 1 hereby give the City of Newport Beach & Corona del Mar, Corona del Mar Certified Farmers Market and the Market Managers the right to use photographs taken of me or my activity for reproduction in any medium for purposes of trade, advertising, display, exhibition, or editorial use. 6. 1 have inspected the event site and assured myself that the area is safe and further agree that I will not participate in the event unless I am satisfied that the area and conditions are safe. I voluntarily assume all risk arising from conditions related to the event site by myself or others. 7. 1 hereby acknowledge and accept the above conditions of participation and agree to assume all responsibility for the safety of myself, my equipment, and shall not permit potentially hazardous situations within or Immediately adjacent to my assigned space. I further agree to release the sponsor (The City of Newport Beach & Corona del Mar), Corona del Mar Certified Fanners Market, and the Market Managers from any and all liability therefore. I also acknowledge receipt of a copy of this signed application. 8. 1 understand that 1 must obtain my own insurance if I desire insurance coverage for the event. NOTE: These conditions of participation are to be retained for your records. CONDITIONS OF PARTICIPATION: t. Vendor shall provide his own equipment, supplies, or other power that may be required. 2. Market will be held rain or shine. 3. Farmer shall maintain his assigned space in a neat and orderly manner, and shall minimize hazards to himself, to his products, and to the public. At the end of the day, farmer shall clean his area, leaving it as neat as when he arrived. 4. Farmer shall be responsible for his own sales, possess a resale number (i.e. nursery), make provision for accepting cash as is his usual practice. 5. DISCLAIMER: The above information is correct to the best of my knowledge. I have read the Application and if my application is accepted, I hereby give the City of Newport Beach & Corona del Mar, Corona del Mar Certified Farmers Market and the Market Managers the right to use photographs taken of me or my activity for reproduction in any medium for purposes of trade, advertising, display, exhibition, or editorial use. - 6. 1 have inspected the event site and assured myself that the area is safe and further agree that I will not participate in the event unless I am satisfied that the area and conditions are safe. 1 voluntarily assume all risk arising from conditions related to the event site by myself or others. INITIAL HERE 7. 1 hereby acknowledge and accept the above conditions of participation and agree to assume all responsibility for the safety of myself, my equipment, and shall not permit potentially hazardous situations within or immediately adjacent to my assigned space. I further agree to release the sponsor (The City of Newport Beach & Corona del Mar), Corona del Mar Certified Farmers Market, and the Market Managers from any and all liability therefore. I also acknowledge receipt of a copy of this signed application. 6. 1 understand that I must obtain my own insurance if I desire insurance coverage for the event. INITIAL HERE Applicant Signature Address Telephone Date 11W' ATTACHMENT 1 TO EXHIBIT B CITY OF NEWPORT BEACH — FARMERS MARKET AGREEMENT ASSUMING RISK OF INJURY OR DAMAGE, WAIVER AND RELEASE OF CLAIMS AND INDEMNITY AGREEMENT WHEREAS, the City of Newport Beach ( "City ") has entered into a license agreement with Rick Heil to allow Rick Heil to use the property located at the public parking lot owned by the City of Newport Beach located at the corner of Marguerite Avenue and Bayside Drive, and the smaller municipal lot across and including a portion of Larkspur Street, in Corona del Mar, 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 of Newport Beach is willing to allow me to participate in the Farmers Market pursuant to the following conditions. NOW, THEREFORE, in consideration of the permission given to participate in the Farmers Market, I do hereby agree to the following: 1. 1 RECOGNIZE THAT PARTICIPATION IN THE FARMERS MARKET IS 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, 1 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, Corona del Mar Certified Farmers Market, Rick Heil, 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, 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, Corona del Mar Certified Farmers Market, Rick Heil, 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 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: Witness Original: To Records 2 Signature Printed Name