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HomeMy WebLinkAbout09 - Newport Beach Farmers Market License AgreementCITY OF °� m= NEWPORT BEACH C9C /Fp0.N`P City Council Staff Report Agenda Item No. 9 July 12, 2011 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Community Development Department Kimberly Brandt, AICP, Director 949 - 644 -3226, kbrandt @newportbeachca.gov PREPARED BY: James Campbell, Principal Planner APPROVED: TITLE: License Agreement for the Newport Beach Farmers' Market ABSTRACT: The Newport Beach Certified Farmers' Market in Lido Marina Village has operated since June of 2010, subject to a license agreement authorized by the City Council. Mark Anderson, the market operator, requests a new agreement that would allow the Farmers' Market to continue until November 30, 2014, and allow entertainment, community booths and the participation of local artists. Additionally, the operator believes that the business license requirement is a hardship on the certified growers and a waiver of the requirement is requested pursuant to Section 5.04.025 of the Municipal Code. RECOMMENDATIONS: 1. Authorize the Mayor and City Clerk to sign a License Agreement for the Newport Beach Farmers' Market between the City of Newport Beach and the Sprouts of Promise Foundation ( "Licensee "), allowing the Licensee the use of City property for a Certified Farmers' Market subject to the terms and conditions of the new agreement (Attachment CC -1). 2. Waive the requirement for certified farmers to obtain a business license pursuant to Section 5.04.025 of the Municipal Code because of hardship as discussed in the staff report, and direct staff to further study options for the apportionment of business license taxes for itinerant vendors. 14 License Agreement for the Newport Beach Farmers' Market July 12, 2011 Page 2 FUNDING REQUIREMENTS: No funding is necessary for the approval of this agreement. The existing license fee of $140 per month recovers the public parking revenue that is lost from the use of the seven (7) spaces on Central Avenue during the event and minimal costs for providing the required temporary "No Parking" signage that must be posted in conjunction with the event. The recommended business license hardship waiver for certified farmers would lead to a small diminishment of revenue that would not likely exceed $5,000 per year. DISCUSSION: The Certified Farmers' Market within Lido Marina Village has operated for approximately one year, and to date, there have been no problems. The market is open Sundays from 8:00 a.m. until 2:00 p.m. each week, with the exception of the two (2) Sundays per year when the Newport Boat Show and Lido Yacht Expo are scheduled. The Licensee /operator has diligently complied with the provisions of the existing license agreement. The current agreement was for one (1) year and the City Manager has authorized an amendment extending the term for an additional six (6) months (current expiration is November 30, 2011). The market has on average 15 vendors per week and the Licensee desires to add entertainment, community booths and local artisans to the vendor mix in the hopes of enhancing the overall experience and expanding the market. Staff is supportive of the request. The Licensee also believes that the existing business license tax is a hardship for the vendors, especially the certified growers, and he would like some form of accommodation. Agreement Term and Notice of Termination The Licensee requests an additional 5 -year term with the possibility for future 5 -year extensions by the City Manager. Staff recommends a 3Y2-year term because circumstances within Lido Marina Village may change due to revitalization efforts and a shorter term provides greater flexibility to make adjustments if necessary. Staff doesn't feel that limiting the duration of extensions to five (5) years is appropriate and recommends no specific limit other than to provide a minimum duration of 12 months for greater flexibility. The attached draft agreement includes these staff - recommended changes and it would expire on November 30, 2014. The current agreement provides for a 30 -day notification for both parties to terminate the agreement; for this new agreement, the applicant is requesting that the City provide a 90 -day notification. Staff has no objection to the longer notification provision. 2 License Agreement for the Newport Beach Farmers' Market July 12, 2011 Page 3 Additions to the Market Entertainment would be typical of a farmers' market, such as live music, a face painter, a balloon artist, juggler or seasonal characters. If sound amplification is provided, the operator is required to obtain a sound amplification permit. The operator proposes two (2) community booths per week to allow participation of local organizations /businesses to showcase community events or issues (e.g., nonprofits, green initiatives, initiative campaigns, health awareness or local businesses). The Licensee proposes that the groups occupying these booths not sell goods or services; however, staff has not included a prohibition within the amended agreement to provide greater flexibility. Lastly, the operator would like to open the event to local artists to sell their handmade items. All of these items would be considered ancillary to the certified farmers' market, and as such, the market would not be allowed to transition into a carnival, street festival or swap meet. Business License Hardship Waiver Each vendor, whether a certified farmer, general commercial vendor, or artist, that sells products is required to obtain a business license pursuant to Chapter 5.04 of the Municipal Code; however, artists are exempt from paying a tax if they sell $1,000 or less in a year. The tax for a business based in Newport Beach is $151 per year while an out - of -town business pays $226 per year. The operator believes that the tax constitutes a significant financial burden on the vendors, which will discourage vendor participation in the market. Section 5.04.025 allows the City Council to waive the license requirement (and tax) if it is a hardship. Section 5.04.025 provides: "5.04.025 Waiver. The City Council may in its discretion in cases of hardship waive the requirements of Section 5.04.020 of this Code." Staff has examined the issue and believes that a hardship waiver is appropriate for the certified farmers. The certified farmers have increased costs due to travel and the highly perishable nature of their product, and often they cannot take it to a market the next day. Additionally, some certified farmers are seasonal, operating as few as four (4) times a year, and others do not participate each week. Obtaining a license is also a burden for new farmers who are uncertain of the viability of the location, thus making it difficult for the licensee to expand the market to its full potential. The Licensee also indicates that the business license requirement is a burden for the regular vendors who are not farmers, although the majority of these vendors have obtained business licenses. Staff seeks Council direction to further study options for apportionment of the business license tax for these itinerant vendors. 3 License Agreement for the Newport Beach Farmers' Market July 12, 2011 Page 4 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). Submitted by: P' Kimberly Brandt, CP Director Attachments: CC -1 Draft License Agreement 4l City Council Attachment No. CC -1 Draft License Agreement 0 LICENSE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND SPROUTS OF PROMISE FOR A CERTIFIED FARMERS' MARKET AT LIDO MARINA VILLAGE THIS. LICENSE AGREEMENT FOR A CERTIFIED FARMERS' MARKET AT LIDO MARINA VILLAGE ( "License ") is made and entered into as of this _day of 2011, by and between the City of Newport Beach, a California Municipal Corporation ( "City "), and Sprouts of Promise Foundation, a 501c3 California nonprofit organization, ( "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 Sections 47000 et seq. implementing regulations, 3 California Code of Regulations Sections 1392, et seq. (hereinafter "Certified Farmers' Market ") in Playa Vista since 2009. C. Licensee currently operates a Certified Farmer's Market within the City pursuant to an agreement between Licensee and City, dated June 8, 2010 ( "Original Agreement ") D. Licensee and City entered into a First Amendment on May 12, 2011, to extend the term of the Original Agreement to December 31, 2011. E. Licensee and City desire to terminate the Original Agreement, as amended, pursuant to Section 7 and waive any required notice provisions and enter into this License. F. Licensee's Certified Farmers' Market is located within the Via Oporto public- right -of way that is owned by the City, bounded by Central Avenue and the private alley northwest of Via Lido. This area includes portions of Central Avenue, the private alley and private parking structure located in the area commonly known as Lido Marina Village, as depicted on the attached Exhibit "A ", which is hereby incorporated by reference herein ( "License Area "). G. Licensee represents that it has the requisite skills and experience to operate a Certified Farmers' Market. 1 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 31St day of December, 2014, unless terminated earlier as set forth herein. 2. Renewal. The City Manager may renew this License if he /she finds that the terms of the agreement have been met and the operation of the Certified Farmers' Market is not causing any negative impact on traffic circulation, parking, or surrounding properties and uses. The term of an extension shall be at the discretion of the City Manager; however, the minimum extension term shall be twelve (12) months. 3. License Fee. Licensee shall pay the City one hundred and forty dollars . ($140.00) per month which amount shall be due and payable on the first of each month. Late payments are payments received after the first of each month and will be assessed a penalty charge of thirty percent (30 %). 4. The Purpose of this License. The purpose of this License is to permit the operation of a Certified Farmers' Market within the License Area. Use of area outside the License Area will not be allowed unless prior permission is given in writing by the City. Licensee agrees to use the License Area only for a Certified Farmers' Market and related ancillary 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. Acceptable ancillary activities include: A. Entertainment typical of a farmers' market, such as live music, face painter, balloon artist, seasonal characters (e.g., Santa Claus), etc. B. 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). C. Local artisan booths 5. Conditions of License. Licensee shall comply with the following conditions prior to the commencement of operation of the Certified Farmers' 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's Community 'Development Director with a copy of all required E 2 certifications, permits, and licenses including without limitation those certificates,. permits and licenses . as may be issued by the State of California, Department of Agriculture, the Orange County Agricultural Commissioner, and the Orange County Health Department. B. Licensee shall submit for review and obtain approval for all advertising and directional signage from the Public Works Department and the Community Development Department. C. Prior to commencing operation of the Certified Farmers' Market, the Licensee shall obtain the Community Development Director's approval of a .parking plan, which may include an agreement with adjacent commercial property owners and /or shared parking. D. Prior to commencing operation of the Certified Farmers' Market, the Licensee shall submit a site plan and /or floor plan showing the layout of the Certified Farmers' Market sales areas for review and approval by the Community Development Department and. the Public Works Department. The site plan" or floor area shall be designed to conform to access standards set forth by Title 24 of the Uniform Building Code (handicapped access requirements). If the City determines that it is necessary, the Licensee shall obtain building permits and /or any other permits required for any proposed improvements. 6. Conditions of Operation. A. The Certified Farmers' Market may operate each Sunday from 8:00 a.m. to 2:00 p.m. Notwithstanding, the Certified Farmers' Market shall not occur on two (2) Sundays per year, when the Newport Boat Show and the Lido Yacht Expo are scheduled to occur. If either of these events is not scheduled, or does not receive a Special Event Permit from the City, the Certified Farmers' Market may occur on that Sunday. 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. B. Licensee or authorized representative 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 7:00 .a.m. Licensee shall ensure that the License Area is returned, clean and free of debris, to its original condition by.no later than 4:00 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. Licensee shall be responsible for set -up, operation, maintenance, sanitation and clean -up of the Certified Farmers' Market as set forth below: 3 9 . (i) Set-up shall include placement of vendors in accordance with the approved site plan; (ii) Operations shall be conducted in accordance with 3 California Code of Regulations, Sections 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 sweeping and /or cleaning the sidewalks and roadway, properly disposing of all trash that has accumulated from the operation 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. (iv) Licensee shall observe community noise restrictions as set forth in Chapters 10.26 and 10.28 of the Municipal Code. Sound amplification associated with any activity is subject to Section 10.32.020 of the Municipal Code. Licensee shall obtain and maintain a sound amplification permit prior to the use of any sound amplification equipment. C. 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. D. 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. E. 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 Section 1392.2(e) or producers selling non - certifiable agricultural products produced by themselves, ensure that vendors adhere to all applicable rules and regulations concerning product quality, and ensure 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 Statement is received by City. F. Licensee shall not allow any participant and or service provider to participate in the Certified' Farmers Market until a City of Newport Beach Business 10 License is obtained and a copy of said license is furnished to the Licensee unless documentation is provided to the Licensee that the activity is exempt from City licensing. 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. O. ' Pursuant to Section 5.04.025 of the Municipal Code, the City Council found that the requirement to obtain a business license is a hardship on the certified producers (farmers) due to the increase costs associated with the production and transportation certified produce or products, and the City Council waived the requirement for certified producers to obtain a business licenses. H. No more than forty (40) vendors shall display and /or sell products at the Certified Farmers' Market. Entertainers, community booths and local artisans shall be included within the forty (40) vendor limit. No additions, enlargements or modifications of uses or structures within the License Area shall be allowed without prior approval of the City. I. All loading and unloading of merchandise, vendor booths and other related improvements shall take place within the License Area. J. Sale or consumption of alcoholic beverages is not permitted at the Certified Farmer's' Market. K. The Certified Farmers' 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 in the sole and absolute discretion of the City's Chief of Police. L. Licensee shall comply with all traffic regulations established for the operation of the Certified Farmers' Market by the City Traffic Engineer. M. 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 local, state or federal law, on the License Area, N. Entertainers shall be limited to live musical or vocal acts, face painters, balloon artists, jugglers, and seasonal characters or similar acts. Licensee or. entertainer shall eliminate or reduce the volume of entertainment acts or amplified sound if complaints are received at the direction of a Police Officer, Code Enforcement 6." i1 Officer or Park Patrol Officer if sound disturbs persons of normal sensitivity. See also Section 6(B.)(iv). O. Community booths shall be limited to non - profit organizations, local service organizations or local businesses to promote community awareness or events. The promotion or display of alcohol or tobacco related products shall be prohibited unless associated with a law enforcement awareness program. 7. 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 ninety (90) 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 ten (10) business days of receipt of written notice, City may immediately terminate the License. 8. Administration. This License will be administered by the Community Development Department. The Community Development Director or her designee shall be the Project Administrator and shall have the authority to act for City under this License. The Project Administrator or her authorized representative shall represent City in all matters pertaining to this License. 9. Ihdemnity & 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 9 12 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. 10. Insurance, Without limiting Licensee's indemnification of City, and 2Li2f to entry onto City property, Licensee shall obtain, provide and maintain at its own expense during the term of this License a policy or policies of insurance of the type and amounts described below and in a form satisfactory to City. A. Coverage and Limit Requirements. (i)' Workers' Compensation. Licensee shall maintain Workers' Compensation Insurance providing statutory benefits and employer's liability insurance with limits of at least one million dollars ($1,000,000) each type for Licensee's employees in accordance with the laws of the State of California, Section 3700 of the Labor Code. In addition, Licensee shall require each vendor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California, Section 3700 for all of the vendor's employees and in the event the vendor does not employ anyone, then they are required to execute the City's Workers Compensation Exemption form.. The insurer issuing the Workers' Compensation insurance shall amend its policy by endorsement to waive all rights of subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers. Licensee shall submit to City, along with the required certificate of insurance, a copy of such waiver of subrogation endorsement. (ii) General Liability. Licensee shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) General Aggregate for bodily injury, personal injury, and property damage, including without limitation, blanket contractual liability. Coverage shall be at least as broad as that provided by Insurance Services Office form CG 00 01. None of the policies required herein shall be in compliance with 7 is these requirements if they include any limiting endorsement that has not been first submitted to City and approved in writing. (iii) Automobile Liability. Licensee shall maintain automobile insurance covering bodily injury and property damage for all activities of the Licensee arising out of or in connection with work to be performed under this License, 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 for each accident. B. Other Insurance Provisions. (i) Evidence of.lnsurance. 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 an additional insured endorsement for general liability. ' Insurance certificates and endorsements must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current evidence of insurance shall be kept on file with City at all times during the term of this License. All of the executed documents referenced in this License must be returned prior to entry onto City property so that the City may review and approve all documentation. City reserves the right to require complete, certified copies of all required insurance policies, at any time. (ii) General liability insurance provisions. Primary and excess or umbrella liability policies are to contain, or be endorsed to contain, the following provisions: (a) City, its elected or appointed officers, agents, officials, employees, and volunteers are to be covered as additional insureds as respects: liability arising out of activities performed by or on behalf of Licensee, including the insured's general supervision of Licensee; products and completed operations of Licensee; . premises owned, occupied or used by Licensee.. The coverage shall contain no special limitations on the scope of protection afforded to City, its elected or appointed officers, officials, employees, agents or volunteers. Licensee shall submit to City a copy of the additional insured endorsement along with the required certificates of insurance. (b) Licensee's insurance coverage shall be primary insurance and/or primary source of recovery as respects City, its elected or appointed officers, agents, officials, employees and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Licensee's operations or services provided to the City., Any insurance or self- insurance maintained by City, its officers, officials, wall employees and volunteers shall be excess of the Licensee's insurance and shall not contribute with it. (c) Licensee's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. (iii) 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. (iv) Notice of Cancellation. Licensee agrees to oblige its insurance broker and insurers to provide to City with thirty (30) days notice of cancellation (except for nonpayment for which ten (10) days notice is required) or, nonrenewal of coverage for each required. (v) Self- Insured Retentions. Licensee agrees not to self- insure or to use any self- insured retentions on any portion of the insurance required herein and further agrees that it will not allow any indemnifying party to self- insure its obligations to City. If Licensee's existing coverage includes a self- insured retention, the self- insured retention must be declared to City. City may review options with the Licensee, which may include reduction or elimination of the self- insured retention, substitution of other coverage, or other solutions. Licensee agrees to be responsible for payment of any deductibles on their policies. (vi) Timely Notice of Claims. Licensee shall give City prompt and timely notice of any claim made or suit instituted arising out of or resulting from Licensee's performance under this License. (vii) Waiver. All insurance coverage maintained or procured pursuant to this License shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers, or shall specifically allow Licensee or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Licensee hereby waives its own right of recovery against City, and shall require similar written express waivers and. insurance clauses from each of its vendors. Vj 15 (viii) Enforcement of License Provisions. Licensee acknowledges and agrees. that any actual or alleged failure on the part of the City to inform Licensee of non - compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. (ix) 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. (x) Coverage not Limited. All insurance coverage and limits provided by Licensee and available or applicable to this License are intended to apply to the full extent of the policies. Nothing contained in this License or any other agreement relating to the City or its operations limits the application of such insurance coverage. (xi) Coverage Renewal. Licensee will renew the coverage required here annually as long as Licensee continues to provide any services or participate in any activities under this or any other contract or agreement with the City. Licensee shall provide proof that policies of insurance required herein expiring during the term of this License have been renewed or replaced with other policies providing at least the same coverage. Proof that such coverage has been ordered shall be submitted prior to expiration. A coverage binder or letter from Licensee's insurance agent to this effect is acceptable. A certificate of insurance and/or additional insured endorsement as required in these specifications applicable to the renewing or new coverage must be provided to City within five (5) days of the expiration of the coverages. C. RESPONSIBILITY FOR DAMAGES OR INJURY (i) City and all officers, employees and representatives thereof shall not be responsible in any manner: for any loss or damages that may happen as a result of this License or any part thereof; for any loss or damage to any of the materials or other things used or employed in performance of this License, for injury to or death of any person either workers or the public; or for damage to property from any cause arising from the activities performed under this License by the Licensee or vendors, or its workers, or anyone employed by it. 10 (ii) Licensee shall be responsible for any liability imposed by law and for injuries to or death of any person or damage to property resulting from this License or from any cause arising from Licensee's work on this License, or the work of any vendor or supplier selected by the Licensee. (iii) Licensee shall indemnify,. hold harmless, and defend City, its officers, agents, and employees from and against (1) any and all loss, damages, liability, claims, allegations of liability, suits, costs and expenses for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury, property damages, or any other claims arising from any and all acts or omissions of Licensee, its employees, agents or subcontractors in the performance of services or work conducted or performed pursuant to this License; or, (2) any and all claims asserted by Licensee's subcontractors or suppliers under this License, and shall include reasonable attorneys' fees and all other costs incurred in defending any such claim. (iv) To the extent authorized by law, as much of the money due Licensee under and by virtue of the License as shall be considered necessary by City may be retained by it until disposition has been made of such suits or claims for damages as aforesaid. (v) Nothing in this article, nor any other portion of .the License shall be construed as authorizing any award of attorneys' fees in any action to enforce the terms of this License. (vi) The rights and obligations set forth in this Section shall survive the termination of this License 11. 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 operate the Certified Farmers' Market in accordance with this License. 11 12. 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. 13. 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. 14. 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. Any assignment or transfer without City's prior written approval is void. 15. Conflict of Interest. The Licensee or its employees may be subject to the provisions of the California Political Reform Act of 1974 ( "Act "), which (a) requires such persons to disclose any 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. Notwithstanding Section 6(C), failure to conform to the requirements of the Act 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. 16. 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: Kimberly Brandt, Director Community Development Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92663 Phone: 949-644-3226 Fax: 949- 644 -3229 12 -g All notices, demands, requests or approvals from City to Licensee shall be addressed to Licensee at: Attn: Mark Anderson Sprouts of Promise Foundation 139 Hollister Avenue, Suite 4 Santa Monica, CA 90405 Phone: 310 - 699 -6134 Fax: 310- 310 -2546 17. 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. 18. 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. 19. 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. 20. 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. 21. 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. 22. 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. 23. 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 13 License shall be adjudicated in. a court of competent jurisdiction in the County of Orange. 24. 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. hereunde.r. 25. 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 License, or of any .duty, covenant, obligation or undertaking established herein. 26. No Attorneys' Fees. In the event of any dispute under the terms of this License the prevailing party shall not be entitled to attorneys' fees, IN WITNESS WHEREOF, the parties have caused this License to be executed on the day and year first written above. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY B - -7//,/,. Leonie Mulvihill, Al Assistant City Attorney ATTEST: in Leilani Brown, City Clerk CITY OF NEWPORT BEACH, A California Municipal Corporation By: Mike Henn, Mayor LICENSEE: By: (Corporate Officer) Print Name: Title: By: (Financial Officer) Print Name: Title: 14 20 males , R � ��` . � | & / q!| {) } }{ ¢! |!§ m t .!a) |!\« !� #§ [!)i'• §! §(� � n- ,�..... �M"m J i J I 2 � m m � m •c � v °� .� ma 3 maoc._ •s v a a n c� a ", L .c p � •u o o � v c �o 6 �Q J7 of O� Z� .137:11 -7i�3 Newport Beach Certified Farmers Market 139 Hollister Avenue, Suite 4, Santa Monica, CA 90405 310 - 699-6134 Govern ing Rules and Regulations for the Newport Beach Certified Farmers Market It is agreed that all vendors including any representatives, volunteers or employees thereof shall be responsible for the care, maintenance, and upkeep of any and all space allocated by the Newport Beach Certified Farmers Market. 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. 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, volunteers and employees prior to taking part in the Farmers Market Vendor's Signature Vendor's Name (printed) RETURN WITH APPLICATION Date 23 CONDITIONS OF PARTICIPATION: (DUPLICATE FOR YOUR RECORDS). 1. Vendor shall provide hLsher_own equipment, supplies, or other power that maybe required. 2. Market will be held rain or shine. 3. Vendor shelf maintain his/her assigned space In a neat and arrledy manner, and shag minimize hazards to himself or herself, to his/her products, and to the public. At the end of the day, vendor shall dean his/ner area, leaving Ilse neat as when sore arrived. 4. Vendor shall be responsible for his/her own sales, possess a resale number, make provision for accepting cash as Is his/her usual practice. 5. DISCLAIMER: The above information Is correct to the best of my knowledge. I have read the Appllcallan and If my application Is accepted, I hereby give the City of Newport Beech 8 Lldo Marine Village, Newport Beach Certified Farmers Merkel 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, exhlbillon, or editorial use. 6. 1 have Inspected the Fanners' Market site and assured myself that the area Is safe and further agree that I will not parildpale in the Farmers' Markel unless I am satisfied that the area and conditions are safe. I voluntarily assume all risk arising from conditions related to the Farmers' Market site by myself or others. 7. 1 hereby acknowledge and accept the above conditions of partidpation and agree to assume all responsibility for the safety of myself, my employees, my volunteers, my equipment, and shag not permit polentielly hazardous situations within or Immediately adjacent to my assigned space. I further agree to release the sponsor (Udo Marina Vlllege), Newport Beach Cerlified'Formers Markel, and the Market Managers from any and all liability therefore. 1 also acknowledge receipt of a copy of this signed application. 8. 1 understand that I must obtain my own insurance coverage. NOTE: These conditions of partlelpadon are to be mtalned for your records. CONDITIONS OF PARTICIPATION: 1. Vender shall provide his/her mm equipment, supplies, or other power that may be required. 2. Market will be held min or shine. 3. Vendor shall maintain his/her assigned space In a neat and orderly manner, and shall minimize hazards to himself or herself, to hisiber products, and to the public. At the end of the day, vendor shall dean his/her area, leaving It as neat as when srhe arrived. 4. Vendor shall be responsible for his/her own sales, possess a resale number, make provision for accepting cash as Is hls&er usual practice. 5. QJSCLAIMER: The above Information Is correct to the beat of my knowledge. I have read the Application and If my application Is accepted, I hereby give the City of Newport Beach & Udo Marina Village, Newport Beach 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, erdrlblgon, or editorial use. 6.. 1 have Inspected the Fanners' Market site and assured myself that the area is safe and further agree that I will not participate In the Farmers' Market unless I am satisfied that the area and conditions are safe. I vCluntedty assume all risk arising from conditions related to the Fanners' Markel site by myself or others. INITIAL HERE 7. 1 hereby ocknowledge and accept the above conditions of participation and agree to assume all responsibility for the safety of myself, my employees, my volunteers, my equipment, and shall not permit potentially hazardous situations within or immediately adjacent to my assigned apace. I further agree to release the sponsor (Udo Marina Village), Newport Beech Certified Farmers Market, and the Markel Managers from any and all liability therefore. I also acknowledge recalpt of a copy of this signed application. 8. 1 understand that I must obtain my own Insurance coverage. INITIAL HERE Vendor's Signature Telephone Date