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HomeMy WebLinkAbout09 - Revocable License Agreement to Operate a Certified Farmers' Market Located at McFadden Square and Newport Pier and a Request for a Reduced Rental RateCTY OF F NEWPORT BEACH City Council Staff Report July 28, 2015 Agenda Item No. 9 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Kimberly Brandt, Community Development Director — (949) 644 -3226, kbrandt@newportbeachca.gov PREPARED BY: Lauren Whitlinger, Real Property Ad min istrator /Seimone Jurjis, PE, CBO, Chief Building Official PHONE: (949) 644 -3236 TITLE: Revocable License Agreement between the City of Newport Beach and Sprouts of Promise to Operate a Certified Farmers' Market Located at McFadden Square and Newport Pier and a Request for a Reduced Rental Rate ABSTRACT: Sprouts of Promise has operated the Lido Marina Village Certified Farmers' Market since June 2010 in the public right -of -way at Via Oporto and Central Avenue. The last City approved agreement expired December 31, 2014. Due to conflicts with construction activities in the market's location, and in consideration of the efforts to revitalize McFadden Square and the area around the Newport Pier, Sprouts of Promise has agreed to move the farmers' market to the McFadden Square area. RECOMMENDATION: a) Find that the execution of the license agreement is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines; b) Authorize the Mayor and City Clerk to enter into a five -year license agreement with Sprouts of Promise for a rental rate of $3,600 per year, and adjusted annually by the Consumer Price Index (CPI), which is below fair market value. The justification for charging less than fair market value is based upon the findings contained in the staff report and in the Revocable License Agreement, which indicate that charging less than fair market value promotes the City's goals to provide an essential or unique service to the community that cannot otherwise be provided if full market rates were charged; c) Approve a waiver of City Council Policy F -7 (Income Property) based on the findings contained in the staff report and in the Revocable License Agreement, that converting the property to another use or changing the licensee of the property would result in excessive vacancy; and d) Approve a waiver of City Council Policy L -13 (McFadden Plaza and Pier Use Policy) based on the findings contained in the staff report and in the Revocable License Agreement that use of McFadden Square for commercial purposes by a certified farmers' market will promote revitalization of the area. NE FUNDING REQUIREMENTS: Should City Council approve the proposed Revocable License Agreement with the proposed rental rate of $3,600 per year, the revenue will be deposited into a General Fund account (Account #0640 - 4629). DISCUSSION: Background Sprouts of Promise (Licensee) has operated the Lido Marina Village Certified Farmers' Market since June 2010 on Sunday each week within the public right -of -way on Via Oporto at Central Avenue. Market attendance declined in recent years as vacancy rates in the commercial properties in Lido Marina Village increased. With extensive construction in the Lido Marina Village area, the Licensee agreed to suspend the market for several months - starting in November 2014, until the improvements are completed. The previous license agreement expired December 31, 2014. Concurrently, staff identified McFadden Square at the base of the Newport Pier, as an area that would benefit from some level of revitalization. Staff discussed several ideas for programming and events to draw pedestrian traffic to the local businesses, including live entertainment, and regular farmers and artisan markets. Relocation of the Licensee's farmers' market to the McFadden Square is expected to draw both residents and visitors. If approved, beginning on September 13, 2015, the market will run every Sunday from 8:00 a.m. to 2:00 p.m., with set -up starting no earlier than 7:00 a.m. and tear -down and clean -up completed by 4:00 p.m. In addition to the plaza, a portion of Newport Pier will also be utilized for vendor booths. The market will utilize the loading zone in the public parking lot for unloading and loading of the vendors' goods and equipment; no parking stalls will be allocated or reserved for the vendors, who must use the public parking on a first come -first served basis. No more than forty vendors (typically in 10 foot by 10 foot stalls) will be spaced throughout the market area, as shown in several possible configurations on the attached exhibits (Attachment CC 2). The licensee paid an annual license fee of $1,680 ($140 per month) when operating at Lido Marina Village. The license fee, under the terms of the proposed new agreement, would increase to $3,600 per year ($300 per month). This is the same rate charged for the farmers' market at Corona del Mar. The rate will adjust annually upon the effective date of the agreement by the proportion of change in the Consumer Price Index (CPI), which adjustments shall not exceed 2.5% per year. Feedback from Life Safety Services, Lifeguards, Police, and Public Works have been incorporated into the proposed vendor layout, which also takes into consideration the approved location of the Ben Carlson Memorial. Adequate space is provided to allow pedestrian access to and around the memorial during the market operation. Sprouts of Promise as licensee /operator of the McFadden Square Certified Farmers' Market possesses the qualifications and experience necessary to continue a successful operation, and staff recommends that the City enter into a five -year license agreement with Sprouts of Promise per the terms outlined below, which are materially the same as the previous agreement. City Council Policy F -7, Income Property The previous agreement expired on December 31, 2014 (Attachment CC 3), and the Licensee is requesting a new agreement to continue the market operation. Staff considered soliciting proposals from other market operators; however, based upon discussion with the City of San Clemente on their program, as well as several Newport Beach stakeholders, staff determined that the current Licensee is meeting the community's expectations. Therefore, staff did not conduct an open bid process and believes the following findings can be made, as required by City Council Policy F -7, Income Property (Attachment CC 4): 1. Converting the property to another use or changing the manager, concessionaire or lessee of the property would result in excessive vacancy, relocation or severance costs, which would outweigh other financial benefits. Soliciting alternate tenants is a time - consuming process that would likely result in months of vacancy and lost revenue and may not result in finding an alternate operator. 49 2. The current Licensee provides an essential or unique service to the community that might not otherwise be provided should an alternate tenant be selected to operate the facility. Staff anticipates the McFadden Square Certified Farmers' Market will be a well- attended weekly event that will be popular with local Newport Beach residents and visitors alike. City Council Policy L -13 specifies limitations to vehicular access to the pier, vehicular access to the plaza, and use of the plaza area. Staff believes a waiver of Items A, B, and C under the 'Plaza Use' section of the policy, to allow the Licensee to operate a weekly certified farmers' market with commercial sales in the plaza, promotes the goals of the policy to rejuvenate the McFadden Square Area. Summary of Proposed Agreement The proposed terms of the Revocable License Agreement are summarized below: 1. The term is for five years with one (1) five -year extension option, unless terminated as provided by the agreement; 2. Operation hours of the market are limited to Sundays from 8:00 a.m. to 2:00 p.m. with set -up no earlier than 7:00 a.m. and clean -up activities not lasting beyond 4:00 p.m.; 3. Rent shall be set at $3,600 per year, due in monthly installments of $300 on the first day of each month. Rent shall be adjusted annually, upon the effective date of the agreement, based on the percentage change in the Consumer Price Index (CPI); 4. Licensee shall obtain and maintain during the term of the Agreement all appropriate permits, licenses, and certifications that may be required by any governmental agency to operate a Certified Farmers' Market; 5. Licensee shall provide a certificate of insurance to the satisfaction of the City's Risk Manager naming the City as additional insured. Additionally, the Licensee shall provide a liability release statement completed by each vendor; and 6. Licensee shall not allow more than forty (40) vendors to display and /or sell products at the market, and shall verify that all individual vendors are "producers" or "certified producers." The agreement has been reviewed by the City Attorney's office and has been approved as to form. Contract Summary Proposed Contract Vendor Name Sprouts of Promise Term 5 Years, one 5 -Year option Escalation Clause Annual CPI, capped at 2.5% Revenue /Year $3,600 Cost /Year $0 Cost /Contract Term (est) Selection Process Sole Source or RFP /RFQ? $0 Sole Source Method (QBS v Low Bid) N/A # of Respondents N/A # of Qualified Respondents N/A ENVIRONMENTAL REVIEW: 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). 9 -3 ATTACHMENTS: Description Attachment CC 1 - Revocable License Agreement Attachment CC 2 - Exhibits (Market Location & Set -up) Attachment CC 3 - License Agreement (C- 4547), dated July 13, 2011 Attachment CC 4 - City Council Policy F -7 - Income Property Attachment CC 5 - Policy L -13 McFadden Plaza Policy ATTACHMENT CC 1 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 September 13, 2015 ( "Effective Date "), by and between the City of Newport Beach, a California municipal corporation and charter city ( "City "), and Sprouts of Promise Foundation, a 501(c)(3) 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. 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 McFadden Square and Newport Pier on Sundays. E. In accordance with City Council Policy F -7, whenever an open bid process is not conducted or fair market value rent is not received for the use of City property, the City shall make specific findings setting forth the reasons thereof. The City finds that converting the property to another use or changing the licensee of the property would result in excessive vacancy, which would outweigh other financial benefits and the use of the, property provides an essential or unique service to the community that might not otherwise be provided were full market value of the property be required. Additionally, as the certified farmers' market may be located, in part, upon public tidelands and the rent charged is less than fair market value the City Council finds this use provides a public benefit to the M1 people of California by providing affordable access to healthy and sustainable food and greater access to the tidelands generally and is therefore a matter of statewide benefit. These findings by the City are of a statewide concern in that the beneficial uses of the property might not otherwise be provided were full market value of the property required or an open bid process conducted. 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 In accordance with City Council Policy L -13, attached hereto as "Exhibit B" and incorporated herein by reference, which was adopted on October 14, 1991, amended on January 24, 1994 and May 26, 1998 regarding commercial use of McFadden Plaza and the Pier, the City Council finds the use of the License Area provides an essential or unique service to the community and promotes the goals of City Council Policy L -13 to rejuvenate the McFadden Square Area and as such, the City Council waived City Council Policy L -13, allowing the Licensee to operate a weekly Farmers' Market within the License Area. Licensee shall comply with all other applicable sections of City Council Policy L -13. 1.3 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. Licensee's use of the License Area shall be limited to the terms of this Agreement. Use of area outside the License Area shall not be allowed without prior written consent of the City. Sprouts of Promise Foundation Page 2 !ay 3. PERMITS AND LICENSES 3.1 Licensee, at its sole expense, shall obtain and maintain during the term of this Agreement, all appropriate permits, licenses and certifications that may be required by any governmental agency, including without limitation those permits as may be issued by the State of California, Department of Agriculture, the Orange County Agricultural Commissioner, the Orange County Health Department and the City of Newport Beach to operate a certified farmers' market. 3.2 Licensee shall not allow any participant, vendor, and /or service provider to participate in the certified farmers' market until all appropriate permits, licenses and certifications are obtained and a copy of said permits are furnished to the Licensee. 3.3 Licensee shall provide the License Administrator, as defined in Section 10 below, with a copy of all required permits, licenses and certificates that may be required by Licensee, its vendors, participants, and or service providers. 4. TERM 4.1 The term of this Agreement shall commence on the Effective Date and shall continue until December 31, 2019, with the option to renew for one (1) additional five (5) year term at the discretion of the City Manager, unless terminated earlier as set forth herein. 4.2 The City Manager may renew this License for one (1) additional five (5) year term if it is determined that (i) the terms of the Agreement have been complied with; (ii) a copy of all required license, permits and certificates are on file with the License Administrator; and (iii) the use of the License Area by Licensee is not causing a negative impact on surrounding properties and uses. Any renewals approved pursuant to this Section must be in writing and approved as to form by the City Attorney. 5. FEES 5.1 Licensee shall pay the City Three Hundred Dollars and 00/100 ($300.00) per month ( "License Fee ") during the term of this Agreement, which amount shall be due and payable on the first of each month ( "Due Date "), commencing on September 13, 2015. The License Fee shall be pro -rated in the event of a partial month's use of the License Area. 5.2 If Licensee fails to pay the License Fee within thirty (30) calendar days of the Due Date, Licensee shall pay a penalty in an amount equal to ten percent (10 %) plus interest in an amount equal to ten (10 %) percent per annum on the unpaid amount, including the late fee, that was not timely paid by the Licensee, until paid in full. 5.3 Upon the first anniversary of the Effective Date and upon each anniversary of the Effective Date thereafter, the License Fee shall be adjusted in proportion to changes in the Consumer Price Index, subject to the maximum adjustment set forth below. Such adjustment shall be made by multiplying the License Fee by a Sprouts of Promise Foundation Page 3 UVA 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- Riverside- Orange County 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. 6. PURPOSE OF THIS LICENSE The purpose of this License is to allow for the operation of a certified farmers' market within the License Area. Use of any area outside the License Area shall not be permitted unless prior written consent is provided by the City. Licensee agrees to use the License Area only for the activities described herein, and not to use or permit the use of the License Area for any other purpose without first obtaining the prior written consent of City, which consent may be withheld in City's sole and absolute discretion. Acceptable ancillary activities include: 6.1 Entertainment typical of a certified farmers' market, such as live music, face painter, balloon artist, seasonal characters (e.g., Santa Claus), etc. 6.2 Community booths to allow participation of local organizations /businesses to take part in the community focused event (e.g., nonprofits, green initiatives, health awareness, local businesses). 6.3 Local artisan booths to sell hand -made goods typically made in a traditional or non - mechanized manner utilizing high quality ingredients (e.g., cheese, bread, soap, jewelry, etc.). 7. CONDITIONS OF LICENSE Licensee shall comply with the following conditions prior to the commencement of use of the License Area: 7.1 Licensee shall procure and maintain any and all required licenses, permits and certifications to operate the certified farmers' market in accordance with Section 3 above. Sprouts of Promise Foundation Page 4 413 7.2 Licensee shall submit for review and obtain approval for all advertising and directional signage from the City's Public Works Department and Community Development Department, as required by the City's Municipal Code. 7.3 The Licensee shall 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 City's Community Development Director. 7.4 Licensee shall submit a site plan and /or floor plan showing the layout of the certified farmers' market sales areas, for review and approval by the City's Community Department and Public Works Department. If the City's Community Development and Public Works Department determine that it is necessary, the Licensee shall obtain building permits and /or any other permits required for any proposed improvements. 8. CONDITIONS OF OPERATION Licensee shall comply with the following conditions of operation during use of the License Area: 8.1 License 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. 8.2 Notwithstanding the schedule outlined in Section 8.1, the certified farmers' market may be restricted from operation due to a special event in the license area. The City, upon thirty (30) days written notice, may restrict operation of the certified farmers' market on additional Sundays, without any compensation or reimbursement to Licensee. 8.3 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. 8.4 The storage of materials is expressly prohibited in the License Area beyond the approved hours of use of the License Area. 8.5 Licensee shall recruit and retain vendors for the certified farmers' market and verify that all individual vendors are "certified producers' or "producers" within the meaning of California Code of Regulations Title 3, Sections 1392.2(d) and 1392.2(e) and 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. Sprouts of Promise Foundation Page 5 M01 8.6 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 producers to obtain a business licenses. 8.7 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. 8.8 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 C, 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. 8.9 Licensee shall annually, upon the anniversary of the Effective Date, provide to the City a current roster of vendors. 8.10 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 written approval of the City Manager or designee. 8.11 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 8.12 Licensee shall observe community noise restrictions as set forth in the City's Municipal Code. Sound amplification associated with any activity is also subject to the Municipal Code. Licensee shall obtain and maintain a sound amplification permit prior to the use of any sound amplification equipment. 8.13 Entertainers shall be limited to live musical or vocal acts, face painters, balloon artists, jugglers, and seasonal characters or similar acts. Licensee or Sprouts of Promise Foundation Page 6 d3[ol entertainer shall eliminate or reduce the volume of entertainment acts or amplified sound if complaints are received and at the direction of a Police Officer, Code Enforcement Officer, or Park Patrol Officer if sound disturbs persons of normal sensitivity. 8.14 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 alcohol or tobacco related products shall be prohibited unless associated with a law enforcement awareness program. 8.15 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. 8.16 All loading and unloading of merchandise, vendor booths and other related improvements shall take place within the License Area. 8.17 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). 8.18 Food items shall not be processed, cooked or packaged on site. Prepared food items shall not be sold for on -site consumption. 8.19 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. 8.20 Sale or consumption of alcoholic beverages is not permitted at the certified farmers' market. 8.21 The certified farmers' market shall not create an 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. 8.22 Licensee shall comply with all traffic regulations established for the operation of the certified farmers' market by the City Traffic Engineer. 8.23 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. 8.24 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 Sprouts of Promise Foundation Page 7 dFM State of California, the ordinances, and regulations of the County of Orange, and the Charter and Ordinances of the City of Newport Beach. 8.25 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. 9. TERMINATION OF LICENSE 9.1 Notwithstanding the term of this Agreement, this License may be terminated during the term or any extended term in the following manner: i. By Licensee: At any time, without cause upon the giving of thirty (30) calendar days written notice of termination to City; ii. 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. 10. ADMINISTRATION This License shall be administered by the Community Development Department. The Community Development Director or his /her designee shall be the License Administrator and shall have the authority to act for City under this License. The License Administrator or their authorized representative shall represent City in all matters pertaining to this License. 11. INDEMNITY AND LIABILITY FOR DAMAGES 11.1 Licensee shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, and employees (collectively, the "Indemnified Parties ") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any work performed or services provided under this Agreement including, without limitation, defects in workmanship or materials or Licensee's presence or activities conducted that relate in any way to this Agreement (including the negligent and /or willful acts, errors and /or omissions of Licensee, employees, vendors, suppliers, and anyone employed directly or indirectly by any of them or for whose acts they 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 Sprouts of Promise Foundation Page 8 dffl 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. 11.2 Licensee shall be liable and responsible for the security, repair and maintenance of the License Area to the extent necessitated by Licensee's use of the License Area under this Agreement. Licensee shall use care to protect the License Area and restore it to its original condition to the satisfaction of the City when the License Area is not in use by Licensee. 12. INSURANCE Without limiting Licensee's indemnification of City, and prior to commencement of work, Licensee shall obtain, provide and maintain at its own expense during the term of this Agreement or for other periods as specified in this Agreement, policies of insurance of the type, amounts, terms and conditions described in the Insurance Requirements attached hereto as Exhibit D, and incorporated herein by reference. 13. 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. 14. CONFLICT OF INTEREST The Licensee or its employees may be subject to the provisions of the California Political Reform Act of 1974 ( "Act "), which (a) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (b) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Licensee shall conform to all requirements of the Act. Notwithstanding Section 9, failure to conform to the requirements of the Act constitutes a material breach and is grounds for immediate termination of this Agreement by City. Licensee shall indemnify and hold harmless City for any and all claims for damages resulting from Licensee's violation of this Section. 15. NOTICE 15.1 All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Licensee to City shall be addressed to City at: Sprouts of Promise Foundation Page 9 d3K3 Community Development Department City of Newport Beach Attn: Real Property Administrator 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92658 15.2 All notices, demands, requests or approvals from City to Licensee shall be addressed to Licensee at: Sprouts of Promise Foundation Attn: Mark Anderson 139 Hollister Avenue, Suite 4 Santa Monica, CA 90405 Phone: (310) 699 -6134 16. STANDARD PROVISIONS 16.1 Recitals. City and Licensee acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 16.2 Compliance with all Laws. Licensee shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Licensee shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the License Administrator. 16.3 Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 16.4 Integrated Agreement. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 16.5 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 16.6 Amendments. This Agreement may be modified or amended only by a written document executed by both Licensee and City and approved as to form by the City Attorney. Sprouts of Promise Foundation Page 10 dscJ 16.7 Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 16.8 Controlling Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 16.9 Taxes. Licensee acknowledges that the License granted herein may 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. 16.10 No Third Party Rights. The parties do not intend to create rights in or grant remedies to, any third party as a beneficiary of this Agreement, or of any duty, covenant, obligation or undertaking established herein. 16.11 No Attorneys' Fees. In the event of any dispute under the terms of this Agreement the prevailing party shall not be entitled to attorneys' fees. 16.12 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. Sprouts of Promise Foundation Page 11 dN7 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: 7 19 �i�- By: ZIL- I Aaron C. Harp City Attorney ATTEST: By: Leilani I. Brown City Clerk (L Attachments: Exhibit A Exhibit B Exhibit C Exhibit D 1 I(1 CITY OF NEWPORT BEACH, a California municipal corporation Date: Bv: Edward D. Selich Mayor LICENSEE: Sprouts of Promise Foundation, a California 501(c)(3) nonprofit organization Date: By: Mark Anderson President Depiction of Premises Council Policy L -13 Vendor Liability Release Statement Insurance Requirements 9 -16 EXHIBIT A DEPICTION OF LICENSE AREA Sprouts of Promise Foundation Page A -1 d3rJ M r McFadden Square I Newport Beach GIS d�PoRr me 0 200 u = -- Feet �4roa�`� .R Newport Pier rot � 11*4 40 :,., OA— s License Areasl 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. 400 Imagery: 2009 -2013 photos provided by Eagle Imaging www.eagleaerial.com i Ben Carlson N Memorial Location alp O X O O X O IR 1 Gi ,1 k O X O y �f X -.. A CO U1 (D N ,,s L l . X O w X \ X L _ O O 0 0 -"r X X O O 00 X 0 X ° 1 �h O 0-h X O 0 O X X O O X j A CO U1 (D N ,,s L l . X 4� 1 x c X X U o AC p —h _ O X 4 r" J o , O X O O X O (JI 00 X ° 1 �h 0-h 0 X O O X O 4� 1 x c X X U o AC p —h _ O X 4 r" J o , k A N t - CD C) CD CD x C) 0 CD V4* t Ir .kow NEWPORT PIE - 9 -2, lbidob n I I r ,t i �A y .\ 5'x140'= 700 sgft i 5 h kA 1 ` y Newport Beach Disclaimer: Every reasonable effort has been made to assure the GAS 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 -� Ok, any results obtained in its use. ?: 80 _ Imagery: 2009 -2013 photos provided by Eagle Feet Imaging www.eagleaerial.com ,r lvlorzota 9 -22 I f ' s �\` .� *v f ��LI Loading Area 1 I TOP- IT_ 2 �l 4:4 iY Nk i le Q�e AVA z � r Newport Beach GIS OPFeet 0 40 80 -- n � y0 e /tom '• S 106 4704 r01� 1/1100 I 4 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 " esman ana Paths of Travel IL r j� 108 14 106 Ale 41 �V r; �� I E 1 100 0 Ben Carlson / • H I � Memorial Location 'Exhibitor booths must not encroach into these areas. IL ti l r Newpori Beach Disclaimer: Every reasonable effort has been made to assure the accuracy of the data provided, however, The City of GI$ Newport Beach and its employees and agents disclaim any and all responsibility from or relating to OP Feet any results obtained in its use. 0 40 80 Imagery: 2009 -2013 photos provided by Eagle Imaging www.eagleaerial.com 4/9!2015 9 -24 EXHIBIT B COUNCIL POLICY L -13 Sprouts of Promise Foundation Page B -1 MIR L-13 cFADDEN PLAZA AND PIER USE POLICY On September 24, 1990, City Council formed Assessment District No. 59 and initiated the reconstruction of public improvements within the McFadden Square area including the McFadden Plaza at the base of the Newport Pier. The reconstruction project represents a cooperative effort between the City of Newport Beach, businessmen, and Property owners to rejuvenate the McFadden Square Area. With this goal in mind, it is the intent of this policy to insure the preservation of the reconstructed improvements in the following ways: PIER ACCESS Access to the pier shall be in accordance with the attached McFadden Plaza Access Plan. Pier access shall be limited to the following: A. Ernereency and Law Enforcement Vehicles. Vehicles providing law enforcement and emergency services on or in the vicinity of the pier that are under 10,000 pounds gross weight will be permitted on the pier. Fire equipment in excess of the weight limit shall be allowed on the pier at the discretion of the Fire Chief in an emergency situation. See Route "A" on the Access Plan. B. Delivery Vehicles. All commercial vehicles shall be prohibited from the pier except for the following: 1. Delivery vehicles with a maximum gross weight of 10,000 pounds, a maximum axle load of 8000 pounds, and a maximum length of 20 feet shall be allowed on the pier during the hours of 6:00 A.M. to 11:00 A.M. Restaurant Vehicles (vehicles operated by the restaurant) may shuttle supplies from the loading zone (Location "F ") at the base of the pier to the restaurant to accommodate overweight /oversize delivery vehicles or deliveries during the restricted hours. Only one restaurant vehicle shall be permitted on the pier at any given time and vehicles shall not be stored on the pier. All restaurant vehicles must be approved for use by the Public Works Department. Permits for restaurant velucles shall be issued to all approved vehicles. To obtain permits, the vehicle year, make, 9 -2'6 L -13 identification number, license plate, gross vehicle weight rating, and length must be submitted and reviewed by the Public Works Department. 2. Light restaurant maintenance vehicles such as pick -ups or small vans for plumbing, electrical, equipment repair will be allowed on the pier if such maintenance work requires that the vehicle be utilized at the site in order to perform the work. A maximum of two vehicles shall be allowed at any time on the pier. Any request to use more then two vehicles shall be approved by the Public Works Department. 3. One small passenger tram shall be allowed to operate on the pier per the concession agreement. Delivery vehicles, maintenance vehicles, and tram shall utilize Route "C" and Location "F" as shown on the Access Plan. All vehicles shall be capable of turning around at the end of the pier. Back up alarms or spotters shall be utilized when turning around at the end of the pier. All vehicles are prohibited from backing the length of the pier. C. City Maintenance Vehicles. City maintenance vehicles are permitted on the pier when performing maintenance and must have direct authorization from the Department Head. Operators of unauthorized City vehicles on the pier are subject to disciplinary action. Maintenance vehicles shall utilize Route "C" as shown on the Access Plan. PLAZA ACCESS Access to the plaza shall be in accordance with the attached McFadden Plaza Access Plan. Plaza access shall be limited to the following: A. Emergency and Law Enforcement Vehicles. Vehicles providing emergency services or law enforcement shall be permitted on the plaza during emergency situations. Parking of vehicles for patrol or non - emergency purposes is prohibited on the plaza. Operators of unauthorized velucles on the plaza are subject to disciplinary action. Parking for patrol or non- 2 Mlft L•13 emergency purposes is provided at Locations "B" and "D" shown on the Access Plan, B. Delivery Vehicles. Delivery vehicles providing services for the Dory Fleet or the concessionaire on the pier will be permitted at Location "F" as shown on the Access Plan for a maximum period of twenty minutes. The maximum time limit may be exceeded when actively loading and unloading of deliveries by handcart to the restaurant. C. Do -ry Fleet Vehicles. Dory Fleet vehicles are permitted to traverse the access road utilizing Route "E" as shown on the Access Plan, for the purposes of launching or retrieving Dorys, Storage of vehicles or trailers on the beach is not permitted. D. City Maintenance Vehicles. City maintenance vehicles are permitted on the plaza when performing maintenance operations that specifically require the maintenance vehicle be on the plaza. Prior authorization from the Department Head must be obtained. Parking for maintenance vehicles has been provided at Location "B" as shown on the Access Plan. Beach Maintenance vehicles may utilize Route "fill as shown on the Access Plan. Refuse collection vehicles may enter the plaza to empty trash containers using Route "A" and exit the plaza using Route "C ". Operators of unauthorized vehicles on the plaza are subject to disciplinary action. E. Marine Department Vehicles, Lifeguard jeeps may traverse the plaza utilizing Route "H" as shown on the Access Plan during high tide and may use all emergency routes when responding to an emergency situation. PLAZA USE A. Special Events. Special events at the plaza shall be limited to the decorative paved area at the base of the pier shown as Location "t" on the Access Plan. Special event support 3 MI-I L -13 vehicles are prohibited from parking on the plaza. All Special Events shall require a Special Event Permit from the Community Services Department. B. Commercial Uses All commercial uses are prohibited in the plaza. C. City Events and City Sponsored Events All City events and City sponsored events shall be considered Special Events and must fulfill the requirements of Section 1. "Special Events" above. D. Pedestrians, Bicycles, and Alternate Wheeled Uses Pedestrian use throughout the plaza is unlimited. Bicycles and skates used for transportation shall be Iimited to the designated trail as shown on the Access Plan, Route "G" and be subject to use restrictions per City Council action. Skateboarding is prohibited in the McFadden Square Area as defined by City ordinance. Exhibition skating and bicycling shall not be permitted within the McFadden Plaza. [Attachment - McFadden Plaza Access Plan] Adopted - October 14,1991 Amended - January 24,1994 Amended - May 26,1998 Formerly L-15 4 M4.01 i RRACl/ Acrz= f 1-1?v f l � ift NI • r$ : � s - .••, �.-a -'+mot . f !!t•^•• w — L/CfI7' rfRR • •r�� 0 P/ t 5•• Y 5 IS Nt ..� � t +st•'t a t •s� of v,�r; a s r ?. �. pappo, CF Z� • a,,: _ • � hIi�DDEN• • aojQ fT:: r J •'i !t'j � 'T � ! 'SEAT WF11_ � vita .��t�e ?��•: r r wk. sysacsnrr vFxictd° a . ff .YAkAYS OM-T ALLBrf ,k , I� �� �'. �:':;. '•Exr5r11,>v uFesuaco r w •" STA•nQ�NL � t4• NRR AG^dLSe CF Z� • a,,: _ • � hIi�DDEN• • EXHIBIT C 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 501c3 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, sprains, strains or tear of muscles or ligaments; fracture or dislocation Sprouts of Promise Foundation Page C -1 MCA 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 AND AGREE TO THE WAIVER AND RELEASE OF LIABILITY. I UNDERSTAND THAT BY MY SIGNATURE ON THIS DOCUMENT, I AM WAIVING MY RIGHTS, INCLUDING ANY RIGHTS I MAY HAVE AGAINST THE RELEASED PARTIES Dated: Signature Printed Name Witness Original: To Records Sprouts of Promise Foundation Page C -2 MCPA EXHIBIT D INSURANCE REQUIREMENTS 1. Provision of Insurance. Without limiting Licensee's indemnification of City, and prior to commencement of work, Licensee shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. Licensee agrees to provide insurance in accordance with requirements set forth here. If Licensee uses existing coverage to comply and that coverage does not meet these requirements, Licensee agrees to amend, supplement or endorse the existing coverage. 2. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 3. Coverage Requirements. A. Workers' Compensation Insurance. Licensee shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. Licensee shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. C. General Liability Insurance. Licensee shall maintain commercial general liability insurance, and if necessary umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) general aggregate. The policy shall cover liability arising from premises, operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract) with no endorsement or modification limiting the scope of coverage for liability assumed under a contract. The commercial general liability insurance must include coverage for sexual abuse /molestation and corporal punishment. D. Automobile Liability Insurance. Licensee shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 Sprouts of Promise Foundation Page D -1 MCIC] 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. 4. Worker's Compensation Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Licensee or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Licensee hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subcontractors. B. Additional Insured Status. All liability policies including general liability, excess liability and automobile liability, if required, but not including professional liability, shall provide or be endorsed to provide that City and its officers, officials, employees, and agents shall be included as insureds under such policies. 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 anytime. 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 Sprouts of Promise Foundation Page D -2 MOO 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. Cif Remedies for Non - Compliance. If Licensee or any subcontractor fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this Agreement, or to suspend Licensee's right to proceed until proper evidence of insurance is provided. G. Timely Notice of Claims. Contractor shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Contractor's performance under this Contract, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. H. Licensee's Insurance. Licensee shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. Sprouts of Promise Foundation Page D -3 MCM ATTACHMENT CC 2 C . r McFadden Square I Newport Beach GIS d�PoRr me 0 200 u = -- Feet �4roa�`� .R Newport Pier rot � 11*4 40 :,., OA— s License Areasl 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. 400 Imagery: 2009 -2013 photos provided by Eagle Imaging www.eagleaerial.com W� a� a v c x ,OL X,OL �. � --- o ,O L X ,O L ,0L X,OL ,OL X,OL ' 101 X,OL pp ! ,0 L X,0 L 1i OSE £ 6 0� IOLXs ,OL X,OL �a + of X's L 1},, ,oiX,s � l f z ,OL X,OL ,OL X,OL i}bsSZ£ p� ,OL X,OL OL X,OL ,0 L X ,0 L � }jbs 005 ,OL X,OL ,OL X,OL r 01 XS ,s X,S o n - • v -n — r 0 o o :3 v 01 X's \ �n d ,01 X's 1 a n� Y � � D 4W i y o m O sv C. v CD cc x 3 6 � O Y Z • 0 ,OL X,OI ,ol X,OI �� i ,o� X,OL r ijbs Oos ,oG X,01 I ,ot X,o[ ,ol X,ol 01 X,O1 L jjbs 00£ ,ot X,oL Ov p L�._..�_ W ,ol X,ol 01 X,O1 L jjbs 00£ ,ot X,oL Ov S If 0 r 5'x140' = 700 sqft :Ir 1 � AffF ri Booth Layout t Newport Beach GIS =04 ?�W POR> �0 80 u °^ Feet �4FOM1M`' 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 9 -40 12/10/2014 I f ' s �\` .� *v f ��LI Loading Area 1 I TOP- IT_ 2 �l 4:4 iY Nk i le Q�e AVA z � r Newport Beach GIS OPFeet 0 40 80 -- n � y0 e /tom '• S 106 4704 r01� 1/1100 I 4 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 " esman ana Paths of Travel IL r j� 108 14 106 Ale 41 �V r; �� I E 1 100 0 Ben Carlson / • H I � Memorial Location 'Exhibitor booths must not encroach into these areas. IL ti l r Newpori Beach Disclaimer: Every reasonable effort has been made to assure the accuracy of the data provided, however, The City of GI$ Newport Beach and its employees and agents disclaim any and all responsibility from or relating to OP Feet any results obtained in its use. 0 40 80 Imagery: 2009 -2013 photos provided by Eagle Imaging www.eagleaerial.com 4/9!2015 9 -42 C'"' /SY7 ATTACHMENT CC 3 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 Corpdration ( "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. it 9 -43 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 315` 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 K Fbi! 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 -45 (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 0 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. G. 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 5 9 -47 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. 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 1.9 MU 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 prior 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 = 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 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 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, 0 9 -50 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. 0 9 -51 (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 9 -52 (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 9 -53 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 9 -54 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 9 -55 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 hereunder. 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&� /r Leonie Mulvihill, ( Assistant City Attorney A �10 ATTEST: By: Leilani Brown, City Clerk 14 CITY OF NEWPORT BEACH, A Calif rnia Municip I Corporation By: Mike Henn, Mayor LICENSEE: By: (Corporate Officer) Print Name: Title: PElrO£� B (Financial Officer) Print Name:H4d& kAMOZiir26?., J Title: ia x \ .u.m.r�.w�. rv�T..- 1w.umrmsn•.u�ua.s. \ \\ �4GAU � TRAFFIC MANAGEMENT, 800.783.3999 eumm.mE.mN.mm e.mI eromem u` CITY OF ' NEWPORT OEACH SHOUTS OF PROMISE FOUNDATION VIA"" (SID �,- Fulouov artmw.mn.m.a ® o.mvTVID W[1O!NmWC.VQ.�mLm Fmv'muY �.num.._�v SHEET 1 OF LLUe5�OX11e111�L [eYwuoum ONM., �4GAU � TRAFFIC MANAGEMENT, 800.783.3999 eumm.mE.mN.mm e.mI eromem u` CITY OF ' NEWPORT OEACH SHOUTS OF PROMISE FOUNDATION VIA"" (SID �,- Fulouov artmw.mn.m.a SHEET 1 OF k a rt 9 -57 \ / �- ( - !i IN , 4 y -• �N'$wport,Beach, �,, ti,Cyerhfied;Farmers,Warket ' ,, @�,Udo�,Manna Village. ��UflydaYSr ''� 1 _)_ VIA oronra � • jet' L, i J - PARKING GARAGE FU kT 1104 lFI , RQ J\ /T a Legend: —� Booths Vendors (da sales only( Fire Lane — Barricades (6' water wall) Vendor Parking (Private) Vendor Parking (City) Directional Signage ("2'x3') b Banner (on building) Fes] 1` a Legend: —� Booths Vendors (da sales only( Fire Lane — Barricades (6' water wall) Vendor Parking (Private) Vendor Parking (City) Directional Signage ("2'x3') b Banner (on building) Fes] EXHIBIT B Newport Beach Certified Farmers Market 139 Hollister Avenue, Suite 4, Santa Monica, CA 90405 310 - 699-6134 Governing 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 1 agree to execute and have executed by my representatives, volunteers and employees prior to taking part in the Farmers Market Vendor's Signature �t�iJIS/>�(!ZS! /' /Fate Vendor's Name (printed) HzfsW RETURN WITH APPLICATION NEZ CONDITIONS OF PARTICIPA71ON: (OUPLICATE FOR YOUR RECORDS). 1. Vendor shall provide his/her own equipment supplies, or other power that may be required. 2. Market WJI be held rain ar shine. 3. Vendor shall maintain his/her assigned space In a neat and orderly manner, and shag mhmlze hazards to himself or herself, to his/her products, and to the public. At the end of the day, vendor shall dean his/her area, leaving It as nest as when sfie 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 Application and If my application Is accepted, I hereby give the City of Newport Beach & L1do Marina Vlitage, 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, ezhlbl8on, 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 voluntarily assume all risk arising from conditions related to the Farmers' Market she 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 employees, my volunteers, my equipment, and shall not permit potentially hazardous situations within or Immediately adjacent to my assigned space. I further agree to release the sponsor (lido Marina Village), Newport Beach Certified Farmers Markel, and Iha Market Managers from any and all liability therefore. I 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 participation are to be retained for your records. CONOITIONS OF PARTICIPATION: 1. Vendor shall provide his/her own equipment, supplies, or other power that may be required. 2. Markel will be held rain 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 his/her products, and to the public. At the end of the day, vendor shall dean his/her area, leaving it as neat as when s/he armed. 4. Vendor shall be responsible for his/her own sales, possess a resale number, make provision for accepting cash as is hWher usual practice. 5. DISCLAIMER: The above Information Is coned 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 acthdty for reproduction In any medium for purposes of trade, advertising, display, e>adbiton. or edhorlal use. 6. 1 have Inspected the Farmers' Market site and assured myself that the area is safe and further agree that I will not participate In the Fanners' Market unless I am satisfied that the area and conditions are safe. I voluntarily assume all risk adsing from conditions related to the Fanners' Market site by myself or others. INITIAL HERE 7. 1 hereby acknowledge and accept the above conditions of parodpaton and agree to assume all responsibility for the safety of myself, my employees, my volunteers, my eguIpmenL and shall not permit potentially hazardous stuatons within or Immediately adjacent to my assigned space. I further agree to release the sponsor (Lido Marina Village), Newport Beach Certified Farmers Markel. and tha Markel Managers from any and all liability therefore. I also acknowledge receipt of a ropy of this signed applIcation. 8. t underAond that I must obtain my own Insurance coverage. INITIAL HERE Vendors Signature • .8 = CITY OF 611 �EWPpRT LL�, ! �, NEWPORT BEACH 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: 0. 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: 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. M. License Agreement for the Newport Beach Farmers' Market July 12, 2011 ;'..i 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:OO 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 3'/2 -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 9 -62 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 9 -63 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: Kimberly Brandt, &p Director Attachments: CC -1 Draft License Agreement 4 City council Attachment No. CC -1 Draft License Agreement S 9 -65 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. 7 9 -67 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 318t 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 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, of 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 rd IN 9 -70 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 moire 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 W_ 11 9 -71 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, actionsi 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 IX 12 9 -72 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 rior to entry onto City propert y, 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, offidials, 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 13 9 -73 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.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 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, 3 14 9 -74 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 bf 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. 0 15 9 -75 (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 coverages 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 foe 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 10 9 -76 (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. is 2�. _ .. 9 -77 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 sewed 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 1 12 l 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 q 1q 9 -79 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 Leonie Mulvihill,t Assistant City Attorney ATTEST: By: Leilani Brown, City Clerk CITY OF NEWPORT BEACH, A California Municipal Corporation By: Mike Henn, Mayor LICENSEE: By: (Corporate Officer) Print Name: Title: M (Financial Officer) Print Name: Title: 14 9 -80 . er.— [..+e. q.rY4s.FCfg4'.4 r6y.pM yuu. [nOM0.1nW NYxnmiirsvID.vissYxY x umivom�i[ux[ a� �Ya��vimuva4uci ¢[�i�iom0�i6o4wGn[. ve�m�w 4L9Q MA cu OO U �n. oo me.rn SNEtT m..w.+ex. OF m x rt E Nu P ^� 9 [nOM0.1nW NYxnmiirsvID.vissYxY x umivom�i[ux[ a� �Ya��vimuva4uci ¢[�i�iom0�i6o4wGn[. ve�m�w 4L9Q MA cu OO U �n. oo me.rn SNEtT m..w.+ex. OF m x rt E Nu kl-i P °Rr "I I Rp 00 SAP~ s' ^�� , r. 4 y a Legend: — Booths — Vendors (•da irvdrsidava4 sales ony) — Fire Lane — Barricades (6' water wall) Vendor Parking (Private) — Vendor Parking (City) F Directional Signage (^'2'x.3') 7l Banner (on building) 0 M. EXHIBIT B Newport Beach Certified Farmers Market 139 Hollister Avenue, Suite 4, Santa Monica, CA 90405 310 - 699-6134 Governing 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 NM. CONDITIONS OF PARTICIPATION: (DUPLICATE FOR YOUR RECORDS). 1. Vendor shell provide *oar . own equipment auppties, or other pourer that may be required. 2. Merkelwill be held rain or shine. 3. Vendor shall maintain hiamer assigned spats In a neat and orderly manner, and shall m(nlmlze hazards to Mmaelf or herself. to Werner products, and to the public. At the end of the day, vendor shall dean his/her area, leaving It a$ neat as when We arrived. 4. Vendor shall be responsible for his/her own sales, possess a resale number, make provision for accepUng cash as is hisfier 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 Newpod Beach & Lida Marina Village, Newport Beach Cerllflad Farmers Markel and the Merkel Managers [ho-right to use photographs taken of me or my activity for reproduction In any medium for purposes of trade, advedlaing, display,.exhlblllon, or editorial use. 6. 1 have Inspected the Farmers''Market site and assured myself that the area Is safe and further agree that I will not Participate In Una Fermem' Markel unless I am satisfied that the area and conditions are safe. I voluntarily assume all risk arising from conditions related to the Fanners' Market site by myself or others. 7. 1 hereby acknowledge and accept the above conditions of participation and agree to assume all responsibility for (he safety of myself, my employees, my volunteers, my equipment and shall not parmll potentially hazardous situations within or Immediately adjacent to my assigned space. I further agree to release the sponsor (lido Marine Village), Newport Beach CeNfled'Formers Market, and the Market Managers from any and all liability therefore, 1 also acknowledge recelpt of a copy of INs signed application. 8. 1 understand tlnat I must obtain my own Insurance coverage. NOTE; Those conditions of participalion am to be retained for,your records, CONDITIONS OF PARTICIPATION: 1. Vendor shell provide his/her own equipment, supplies, or other power that may be required. 2. Merkel will be held rain 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 Mother products, and to the public. At the end of Ute day, vendor shell dean hlsyner area, leaving it as nea( as when athe arrived. - 4. Vendor shall'be..responslble for his/her own sales, possess a resale number, make prevision for accepting cash as Is Nether usual practice. 6, pISCLAIMER: The above Information Is correct to the beat of my kno%viedge. 1 have read the Application and If my application Is accepted, I hereby give the City of Newport Beach & Lldo Marina Village, Newport Beach Certified Farmers Markel and the Markel 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 Inspdcled the Fanners' Market $tie and assured myself that the area Is safe and further agree that I will not porllcipale In the Farmers' Markel unless I am satisfied Net the area and conditions are safe. I volunWtlfy assume all risk arising from conditions related to the Farmers' Matte( silo by myself or others, INITIAL HERE ' 7. 1 hereby acknowledge and accept the above conditions of paridpation 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 at immediately adjacent to my assigned apace. I further agree to release the sponsor (Udo Madna Village), Newport Beach Certified Farmers MarksL and the Markel Managers from any and all Ilabgity therefore. 1 also acknowledge receipt at a copy of this signed applicatiam 8. 1 understand that I must obtain my own Insurance average. INITIAL HERE Vendors Signature - Telephone Dale 24 �� ATTACHMENT CC 4 F -7 INCOME 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 and operates a yacht basin, a mobile home park, a luxury residential development and various other income properties. Most of the income property is tidelands, filled tidelands or waterfront. Unencumbered fee value of income property is estimated at upwards of one hundred million dollars, and income typically contributes ten percent of all City revenues. 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 unfeasible uses and facilities to 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 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 properties using sound business principles and after receiving input from neighbors and users. The policy of the City Council is that income property be managed in accordance with the following: A. Whenever a lease, management contract, concession, sale 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 value of the property. B. All negotiations regarding the lease, management contract, concession, sale 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, to operate or manage all property and facilities directly with City staff or contractors. D. In all negotiations regarding the lease, management contract, concession, sale or similar action regarding a non - residential income property, the City shall seek 1 1 &A revenue equivalent to the open market value of the highest and best use; and, whenever possible the City shall conduct an open bid or proposal process to insure the highest financial return. E. Whenever less than the open market or appraised value is received or when an open bid process is not conducted, the City shall make specific findings setting forth the reasons thereof. Such findings may include but need not be limited to the following: 1. The City is prevented by tideland grants, Coastal Commission guidelines or other restrictions from selling the property or converting it to another use. 2. Redevelopment of the property would require excessive time, resources and costs which would outweigh other financial benefits. 3. Converting the property to another use or changing the manager, concessionaire or lessee of the property would result in excessive vacancy, relocation or severance costs, 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 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 or marine related services. F. Generally, lengths of leases, management contracts, concessions or similar agreements will be limited to the minimum necessary to meet market standards and will contain appropriate reappraisal and inflation protection provisions. Also, all agreements shall contain provisions to assure complete audits periodically through their terms. G. All negotiations regarding the lease, management contract, concession, sale 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. H. To provide an accurate accounting of actual net revenues generated by the City's income property, all costs and charges directly attributable to the management of 2 M -1 l0FA a specific income property shall be debited against the gross revenues collected on that property in the fiscal year the costs are incurred. Costs and charges include property repairs and maintenance, property appraisals, and consultant fees, as authorized by the City Council, City Manager or by this Income Property Policy. I. The City Manager or his /her designee is authorized to sign a 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 lease, management contract, concession or similar agreement or any amendment thereto, to the City Council for its consideration and /or action. Adopted - July 27,1992 Amended - January 24,1994 Amended - February 27,1995 Amended - February 24,1997 Amended - May 26,1998 Amended - August 11, 2009 Amended - May 14, 2013 Formerly F -24 3 ATTACHMENT CC 5 L -13 McFADDEN PLAZA AND PIER USE POLICY On September 24, 1990, City Council formed Assessment District No. 59 and initiated the reconstruction of public improvements within the McFadden Square area including the McFadden Plaza at the base of the Newport Pier. The reconstruction project represents a cooperative effort between the City of Newport Beach, businessmen, and property owners to rejuvenate the McFadden Square Area. With this goal in mind, it is the intent of this policy to insure the preservation of the reconstructed improvements in the following ways: PIER ACCESS Access to the pier shall be in accordance with the attached McFadden Plaza Access Plan. Pier access shall be limited to the following: A. Emergency and Law Enforcement Vehicles. Vehicles providing law enforcement and emergency services on or in the vicinity of the pier that are under 10,000 pounds gross weight will be permitted on the pier. Fire equipment in excess of the weight limit shall be allowed on the pier at the discretion of the Fire Chief in an emergency situation. See Route "A" on the Access Plan. B. Delivery Vehicles. All commercial vehicles shall be prohibited from the pier except for the following: 1. Delivery vehicles with a maximum gross weight of 10,000 pounds, a maximum axle load of 8000 pounds, and a maximum length of 20 feet shall be allowed on the pier during the hours of 6:00 A.M. to 11:00 A.M. Restaurant Vehicles (vehicles operated by the restaurant) may shuttle supplies from the loading zone (Location "F ") at the base of the pier to the restaurant to accommodate overweight/ oversize delivery vehicles or deliveries during the restricted hours. Only one restaurant vehicle shall be permitted on the pier at any given time and vehicles shall not be stored on the pier. All restaurant vehicles must be approved for use by the Public Works Department. Permits for restaurant vehicles shall be issued to all approved vehicles. To obtain permits, the vehicle year, make, MM L -13 identification number, license plate, gross vehicle weight rating, and length must be submitted and reviewed by the Public Works Department. 2. Light restaurant maintenance vehicles such as pick -ups or small vans for plumbing, electrical, equipment repair will be allowed on the pier if such maintenance work requires that the vehicle be utilized at the site in order to perform the work. A maximum of two vehicles shall be allowed at any time on the pier. Any request to use more then two vehicles shall be approved by the Public Works Department. 3. One small passenger tram shall he allowed to operate on the pier per the concession agreement. Delivery vehicles, maintenance vehicles, and tram shall utilize Route "C" and Location "F" as shown on the Access Plan. All vehicles shall be capable of turning around at the end of the pier. Back up alarms or spotters shall be utilized when turning around at the end of the pier. All vehicles are prohibited from backing the length of the pier. C. City Maintenance Vehicles. City maintenance vehicles are permitted on the pier when performing maintenance and must have direct authorization from the Department Head. Operators of unauthorized City vehicles on the pier are subject to disciplinary action. Maintenance vehicles shall utilize Route "C" as shown on the Access Plan. PLAZA ACCESS Access to the plaza shall be in accordance with the attached McFadden Plaza Access Plan. Plaza access shall be limited to the following: A. Emergency and Law Enforcement Vehicles. Vehicles providing emergency services or law enforcement shall be permitted on the plaza during emergency situations. Parking of vehicles for patrol or non - emergency purposes is prohibited on the plaza. Operators of unauthorized vehicles on the plaza are subject to disciplinary action. Parking for patrol or non- 2 MW L-13 emergency purposes is provided at Locations 'B" and "D" shown on the Access Plan. B. Delivery Vehicles. Delivery vehicles providing services for the Dory Fleet or the concessionaire on the pier will be permitted at Location "F" as shown on the Access Plan for a maximum period of twenty minutes. The maximum time limit may be exceeded when actively loading and unloading of deliveries by handcart to the restaurant. C. Dory Fleet Vehicles. Dory Fleet vehicles are permitted to traverse the access road utilizing Route "E" as shown on the Access Plan, for the purposes of launching or retrieving Dorys. Storage of vehicles or trailers on the beach is not permitted. D. City Maintenance Vehicles. City maintenance vehicles are permitted on the plaza when performing maintenance operations that specifically require the maintenance vehicle be on the plaza. Prior authorization from the Department Head must be obtained. Parking for maintenance vehicles has been provided at Location "B" as shown on the Access Plan. Beach Maintenance vehicles may utilize Route "E" as shown on the Access Plan. Refuse collection vehicles may enter the plaza to empty trash containers using Route "A" and exit the plaza using Route "C ". Operators of unauthorized vehicles on the plaza are subject to disciplinary action. E. Marine Department Vehicles. Lifeguard jeeps may traverse the plaza utilizing Route "H" as shown on the Access Plan during high tide and may use all emergency routes when responding to an emergency situation. PLAZA USE A. SSRecial Events. Special events at the plaza shall be limited to the decorative paved area at the base of the pier shown as Location "I" on the Access Plan. Special event support 3 .M L -13 vehicles are prohibited from parking on the plaza. All Special Events shall require a Special Event Permit from the Community Services Department. B. Commercial Uses All commercial uses are prohibited in the plaza. C. City Events and City Sponsored Events All City events and City sponsored events shall be considered Special Events and must fulfill the requirements of Section 1. "Special Events" above. D. Pedestrians, Bicycles, and Alternate Wheeled Uses Pedestrian use throughout the plaza is unlimited. Bicycles and skates used for transportation shall be limited to the designated trail as shown on the Access Plan, Route "G" and be subject to use restrictions per City Council action. Skateboarding is prohibited in the McFadden Square Area as defined by City ordinance. Exhibition skating and bicycling shall not be permitted within the McFadden Plaza. [Attachment - McFadden Plaza Access Plan] Adopted - October 14,1991 Amended - January 24,1994 Amended - May 26,1998 Formerly L-15 4 9 -91 ! , ....A . lit r —O• B /,1JJF ROl177' 4— —_ - - - -•• �— wwtEtt � 7117T/ ///i o-, - F LOAD /NO T.ONr. Oa • n/" xourr ( V �� 0 - 4 ? r ' • MM l VORY FLEET ucilr win � •i• •wl i�s , ` '1 4 ' � ��,� • � %A PIrR ALCri.1 � ,M _'may �• ,il 11 •.1 111111 ..�, f, fd•�';�t o. N, !t,• .. � `_' -��i }' .tea _ � FA wiR AUGV7LNANCR R)IICH ' fit �� RA/rRcrvcr ✓ llcl� it Rah PARKLWO , x J A/ARwe Orn: ACCMrS - L vi Dk . ''EXf•�ING VFEGlz4¢A 1 riom pig A RAlrRCBNCY � / /dR AGL^d[fS ZA AD ' A CCESS ;°LAIN