HomeMy WebLinkAbout06 - CDM Farmers MarketCITY OF
NEWPORT BEACH
City Council Staff Report
May 27, 2014
Agenda Item No. 6.
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Kimberly Brandt, Community Development Director— (949) 644 -3226,
kbrandt @newportbeachca.gov
PREPARED BY: Lauren Wooding, Real Property Administrator & Seimone Jurjis, Chief Building
Official
PHONE: (949) 644 -3236
TITLE: Revocable License Agreement between the City of Newport Beach and Rick Heil to
operate the Corona del Mar Certified Farmers' Market Located at the Bayside Drive
Parking Lot, and a Request for a Rental Rate that is Below Fair Market Value
ABSTRACT:
Since 1996, Rick Heil has operated the Corona del Mar Certified Farmers' Market at the City -
owned public parking lot at Marguerite Avenue and Bayside Drive. The last license agreement
expired on May 12, 2014. Staff is recommending that the City enter into a new license
agreement with Mr. Heil with an annual rent that is below fair market value, which requires City
Council approval.
RECOMMENDATION:
a) 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;
b) Approve a five -year license agreement with an annual rent of $3,600 per year, as adjusted
annually by the Consumer Price Index (CPI), which is below fair market value, based on the
findings contained in this staff report and in the attached Revocable License Agreement (Staff
Report Attachment CC 1), 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; and
c) Approve a waiver of City Council Policy F -7 based on the findings contained in this staff
report and in the attached Revocable License Agreement (Staff Report Attachment CC 1), that
converting the property to another use or changing the licensee of the property would result in
an excessive vacancy, and authorize the City Manager or his /her designee to enter into an
agreement with Rick Heil.
FUNDING REQUIREMENTS:
The current adopted budget reflects $1,560 in annual license fee revenue from the operation of
the Corona del Mar Certified Farmers' Market. Should City Council approve the new Revocable
License Agreement (Attachment CC 1) with the proposed rental rate of $3,600 per year, the
revenue will continue to be deposited into the General Fund account for Parking Lots & Meters
(0643- 5554).
DISCUSSION:
Background
Since 1996, Rick Heil (Licensee) has been operating the Corona del Mar Certified Farmers'
Market. The market runs every Saturday from 9:00 a.m. to 1:00 p.m. with set -up beginning no
earlier than 7:30 a.m. and tear -down completed by 3:00 p.m. The market is located in the
public parking lot at Marguerite Avenue and Bayside Drive and also includes a portion of the
public parking lot at Larkspur Avenue and Bayside Drive and a portion of Larkspur Avenue,
which is closed to vehicular traffic during market hours. The market uses 53 parking spaces
between the two lots to accomodate approximately 40 vendors, as shown on the exhibits in
Attachment CC 2.
The previous agreement expired on May 12, 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, but upon discussion with the City of San Clemente as
well as several Newport Beach stakeholders, staff determined that the Licensee is meeting or
exceeding expectations. Therefore, staff did not conduct an open bid process and believes that
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.
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. The
Corona del Mar Certified Farmers' Market is a long- standing and well- attended weekly event
that is popular with local Newport Beach residents and visitors alike.
Current fair market value for use of the 53 spaces in the two parking lots, seven and one -half
hours, one -day per week is approximately $15,000 per year. The current annual license rate is
$1,560 ($130 per month). The license fee, under the terms of the proposed agreement, would
increase to $3,600 per year ($300 per month), and will adjust annually upon the effective date
of the agreement by the Consumer Price Index (CPI), not exceeding 2.5% per year.
Rick Heil as licensee /operator of the Corona del Mar Certified Farmers' Market possesses the
qualifications and experience necessary to continue a successful operation. Staff
recommends that the City enter into a new five -year license agreement with Mr. Heil per the
following terms which are materially the same as the previous agreement.
Summary of Proposed License Agreement
The proposed terms of the Revocable License Agreement are summarized below:
1. The term of the agreement will be for five years with one (1) five -year extension option,
unless terminated as provided by the agreement;
2. Operation hours of the market will remain unchanged and are limited to Saturdays from
9:00 a.m. to 1:00 p.m., with set -up no earlier than 7:30 a.m. and clean -up activities not lasting
beyond 3:00 p.m.;
3. Rent shall be set at $3,600 per year, due in monthly installments of $300, and due 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 attached agreement has been reviewed by the City Attorney's office and has been
approved as to form.
ENVIRONMENTAL REVIEW:
This action is not subject to the California Environmental Quality Act ( "CEQK) pursuant to
Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect
physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in
Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3,
because it has no potential for resulting in physical change to the environment, directly or
indirectly.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of the
meeting at which the City Council considers the item).
ATTACHMENTS:
Description
Attachment CC 1 - Revocable License Agreement
Attachment CC 2 - Parking Space Exhibit
Attachment CC 3 - Previous Agreement
Attachment CC 4 - Council Policy F -7
ATTACHMENT CC -1
REVOCABLE LICENSE AGREEMENT
BETWEEN THE CITY OF NEWPORT BEACH
AND RICK HEIL FOR
TEMPORARY USE OF CITY PROPERTY
FOR CORONA DEL MAR CERTIFIED FARMERS' MARKET
THIS REVOCABLE LICENSE AGREEMENT FOR TEMPORARY USE OF CITY
PROPERTY FOR A CERTIFIED FARMERS' MARKET ( "License ") is made and entered
into as of this 13th day of May, 2014 ( "Effective Date "), by and between the CITY OF
NEWPORT BEACH, a California municipal corporation and charter city ( "City "), and
RICK HEIL, an individual ( "Licensee "), and is made with reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of the
City.
B. 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 producer and has operated a certified farmers' market, in
accordance with the Food and Agriculture Code Section 47000 et seq.
(implementing regulations) and California Code of Regulations, Title 3, Section
1392, et seq. (hereinafter "Certified Farmers' Market ") in Newport Beach since
1996.
D. Licensee has requested that he be allowed to continue to operate the Certified
Farmers' Market in Corona del Mar on Saturdays.
E. In accordance with City Council Policy F -7, whenever an open bid process is not
conducted prior to entering a license agreement for 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.
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, 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 the City owned public parking lot located at the
corner of Marguerite Avenue and Bayside Drive as well as the smaller municipal lot
across and including a portion of Larkspur Street, in Corona del Mar, Newport Beach
( "License Area "), as further depicted on Exhibit A, which is attached hereto and
incorporated herein by reference, on Saturdays for a Certified Famers' Market.
1.2 The License granted herein is subject to the terms, covenants and
conditions hereinafter set forth, and Licensee covenants, as a material part of the
consideration for this License, to keep and perform each and every term, covenant and
condition of this Agreement.
2. USE OF THE LICENSE AREA
Licensee's use of the License Area shall be limited to the terms of this
Agreement. Use of area outside the License Area shall not be allowed without prior
written consent of the City.
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 License 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.
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4.1 The term of this License shall commence on the Effective Date and shall
continue until May 12, 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
Rick Heil Page 2
with; (ii) a copy of all required license, permits and certificates are on file with the City's
Real Property Administrator; and (iii) the use 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 for the City.
5. FEES
5.1 Licensee shall pay the City Three Hundred Dollars and 00/100 ($300.00)
per month ( "License Fee "), which amount shall be due and payable on the first of each
month (the "Due Date "), commencing on June 1, 2014. 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) days of the Due
Date, Licensee shall pay a late charge in an amount equal to ten percent (10 %) of the
amount that was not timely paid by the Licensee.
5.3 Upon the first anniversary of the Effective Date and upon each
anniversary of the Effective Date thereafter, the License Fee shall be adjusted in
proportion to changes in the Consumer Price Index, subject to the maximum adjustment
set forth below. Such adjustment shall be made by multiplying the License Fee by a
fraction, the numerator of which is the value of the Consumer Price Index for the
calendar month three (3) 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 Billing Rates, for any year where
an adjustment is made pursuant to this Section, shall not exceed 2.5% of the Billing
Rates 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 as depicted on Exhibit A. Use of any area outside the
License Area shall not be permitted unless prior written consent is provided by the City.
Licensee agrees to use the License Area only for the activities described herein, and
not to use or permit the use of the License Area for any other purpose without first
obtaining the prior written consent of City, which consent may be withheld in City's sole
discretion.
Rick Heil Page 3
7. CONDITIONS OF LICENSE
Licensee shall comply with the following conditions prior to the commencement
of use of the License Area:
7.1 Licensee shall procure and maintain any and all required licenses, permits
and certifications to operate the Certified Farmers' Market in accordance with Section 3
above.
7.2 Licensee shall submit for review and obtain approval for all advertising
and directional signage from the City's Public Works Department and Community
Development Department.
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. City Staff
may assist in obtaining approval.
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.
S. 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 Saturdays from 7:30 a.m. until
3:00 p.m. Set up activities for the Certified Farmers' Market shall not occur prior to 7:30
a.m. The Certified Farmers' Market may operate each Saturday from 9:00 a.m. to 1:00
p.m., respectively. Licensee shall ensure that the License Area is returned, clean and
free of debris, to its original condition no later than 3:00 p.m. on the same day. City
reserves the right to modify the hours of set up and operation, in the City's sole
discretion.
8.2 Licensee shall be present during each and every Certified Farmers'
Market from commencement of set up to the completion of clean up. 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.
8.3 The storage of materials is expressly prohibited in the License Area
beyond the approved hours of use of the License Area.
Rick Heil Page 4
8.4 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 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.
8.5 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 B, which is attached hereto an incorporated herein by reference. 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 the City.
8.6 Licensee shall annually, upon the anniversary of the Effective Date,
provide to the City a current roster of vendors.
8.7 No more than forty (40) vendors shall display and /or sell products at the
Certified Farmers' Market. No additions, enlargements or modifications of uses or
structures within the License Area shall be allowed without prior approval of the City.
8.8 Licensee shall be responsible for setup, operation, maintenance,
sanitation and clean up 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 and the
City.
8.9 Operations shall be conducted in accordance with California Code of
Regulations Title 3, Section 1392.1, et seq., and within the guidelines set forth in the
State of California Department of Agricultural marketing plan.
8.10 All loading and unloading of merchandise, vendor booths and other
related improvements shall take place within the License Area.
8.11 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).
8.12 Food items shall not be processed, cooked or packaged on site. Prepared
food items shall not be sold for on -site consumption.
Rick Heil Page 5
8.13 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.
8.14 Sale or consumption of alcoholic beverages is not permitted at the
Certified Farmers' Market.
8.15 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 by the City's Chief of Police.
8.16 Licensee shall comply with all traffic regulations established for the
operation of the Certified Farmers' Market by the City Traffic Engineer.
8.17 Licensee covenants and agrees that Licensee shall: (i) not use the
License Area for any unlawful purpose; (ii) use the License Area in a careful and proper
manner in accordance with this License; and (iii) not bring or use any Hazardous
Materials, as defined by state or federal law, on the License Area.
8.18 Licensee shall operate the Certified Farmers' Market in accordance with
all applicable provisions of the statutes, rules and regulations of the State of California,
the ordinances, and regulations of the County of Orange, and the Charter and
Ordinances of the City of Newport Beach.
8.19 City shall be entitled, with a Licensee representative, 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 License, 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) days written notice of termination to City;
ii. By City: At any time, without cause upon the giving of thirty (30)
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 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.
Rick Heil Page 6
10. ADMINISTRATION
This License shall be administered by the Community Development Department,
The Community Development Director 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 License, any work performed or services provided under this
License including, without limitation, defects in workmanship or materials or Licensee's
presence or activities conducted that relate in any way to this License (including the
negligent and /or willful acts, errors and /or omissions of Licensee, employees, vendors,
suppliers, and anyone employed directly or indirectly by any of them or for whose acts
they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein
shall be construed to require Licensee to indemnify the Indemnified Parties from any
Claim arising from the sole negligence or willful misconduct of the Indemnified Parties.
Nothing in this indemnity shall be construed as authorizing any award of attorney's fees
in any action on or to enforce the terms of this License. This indemnity shall apply to all
claims and liability regardless of whether any insurance policies are applicable. The
policy limits do not act as a limitation upon the amount of indemnification to be provided
by the Licensee.
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 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.
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 C, and incorporated herein by reference.
Rick Heil Page 7
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 discretion.
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 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
9.1.3, 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.
15. NOTICE
15.1 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
delivered personally, or on the third business day after the deposit thereof
States mail, postage prepaid, first -class mail, addressed as hereinafter
notices, demands, requests or approvals from Licensee to City shall be
City at:
Community Development Department
City of Newport Beach
Attn: Real Property Administrator
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
served when
in the United
provided. All
addressed to
15.2 All notices, demands, requests or approvals from City to Licensee shall be
addressed to Licensee at:
Corona del Mar Certified Farmers' Market
Attn: Rick Heil
2316 Calle Almirante
San Clemente, Ca 92673
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.
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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 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.
16.5 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.
16.6 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.
16.7 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.
16.8 Controlling Law and Venue. The laws of the State of California shall
govern this License and all matters relating to it and any action brought relating to this
License shall be adjudicated in a court of competent jurisdiction in the County of
Orange.
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 License, or of any duty,
covenant, obligation or undertaking established herein.
Rick Heil Page 9
16.11 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.
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 and the same instrument.
[SIGNATURES ON NEXT PAGE]
Rick Heil Page 10
IN WITNESS WHEREOF, the parties have caused this License to be executed
on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:
By: 1
Aaron C. Har
City Attorney
ATTEST:
By:
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:_
Rush N
Mayor
Hill, II
LICENSEE: Rick Heil, an individual
Date:
By:
Rick Heil
[END OF SIGNATURES]
Attachments: Exhibit A: Depiction of Premises
Exhibit B: Vendor Liability Release Statement
Exhibit C: Insurance Requirements
Rick Heil Page 11
EXHIBIT A
DEPICTION OF LICENSE AREA
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EXHIBIT B
LIABILITY RELEASE STATEMENT
Rick Heil ���Y Page B -1
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 RICK HEIL, an
individual, to allow Rick Heil to use the City owned public parking lot owned located at
the corner of Marguerite Avenue and Bayside Drive, and the smaller municipal lot
across and including a portion of Larkspur Street, in Corona del Mar, Newport Beach,
California for a Certified Farmers' Market ( "Farmers' Market ");
WHEREAS, I,
being over the age of eighteen (18), have made a voluntary request to participate in the
Farmers' Market; and
WHEREAS, in consideration of acceptance of my entry in the Farmers' Market, I
agree on behalf of myself, my heirs, my executors, and administrators, to waive,
release, and forever discharge any and all rights and claims for damages which may
hereafter accrue to me against the below listed agencies, companies or entities, their
officials, employees, as provided herein; and
WHEREAS, the City 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 is dangerous and
contains risk of personal injury, death, disfigurement, disability or property damage or
loss ( "damages ").
2. 1 have been fully informed of all aspects of the Farmers' Market and all
aspects of the activities that I will be participating in at the Farmers' Market. Despite the
potential risk of damages to me as a result of my participation in the Farmers' Market, 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, Corona del Mar Certified Farmers' Market, Rick
Heil, the Market Managers, or the County of Orange including, but not limited to,
strenuous physical activity or exertion, tripping or falling and being struck by objects or
persons. Such risks may result in injuries that include, but are not limited to, sprains,
strains or tear of muscles or ligaments; fracture or dislocation of joints or bones; head or
facial injuries; spinal cord or internal injuries; or other damages related to pre- existing
medical conditions I may have.
4. To the maximum extent permitted by law, I hereby, for myself, my heirs,
executors, administrators, assigns or anyone who might claim on my behalf, agree not
to bring any claim, and waive, release and discharge the City of Newport Beach,
Corona del Mar Certified Farmers' Market, Rick Heil, the market managers or the
County of Orange, its officials, officers, agents, volunteers, consultants, attorneys and
employees ( "Released Parties ") from any and all duty to me; liability for any damages to
me; and /or liability for any damages, losses, costs, and expenses arising out of or in the
course of my participation in the Farmers' Market, including all liability for any active or
passive negligence by the Released Parties. This release and waiver extends to all
claims of every kind or nature whatsoever, foreseen or unforeseen, known or unknown.
I expressly intend this waiver and release to be effective, regardless of whether the
claim of liability is asserted in negligence, strict liability or other theory of recovery.
5. 1 hereby for myself, my heirs, executors, administrators, and assigns,
agree to defend and indemnify the Released Parties against any and all manner of
actions, causes of actions, suits, debts, claims, demands, or damages or liability or
expense of every kind and nature incurred or arising by reason of any actual or claimed
negligent or wrongful act or omission of mine while participating in the Farmers' Market.
I HAVE READ, UNDERSTAND AND AGREE TO THE WAIVER AND RELEASE OF
LIABILITY. I UNDERSTAND THAT BY MY SIGNATURE ON THIS DOCUMENT, I AM
WAIVING MY RIGHTS, INCLUDING ANY RIGHTS I MAY HAVE AGAINST THE
RELEASED PARTIES
Dated:
Signature
Printed Name
Witness
Original: To Records
EXHIBIT C
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
Rick Heil Page C -1
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
Rick Heil Page C -2
insurance required by giving Licensee sixty (60) calendar days advance
written notice of such change.
C. Enforcement of Agreement Provisions. Licensee acknowledges and
agrees that any actual or alleged failure on the part of City to inform
Licensee of non - compliance with any requirement imposes no additional
obligations on City nor does it waive any rights hereunder.
D. Requirements not Limiting. Requirements of specific coverage features
or limits contained in this Section are not intended as a limitation on
coverage, limits or other requirements, or a waiver of any coverage
normally provided by any insurance. Specific reference to a given
coverage feature is for purposes of clarification only as it pertains to a
given issue and is not intended by any party or insured to be all inclusive,
or to the exclusion of other coverage, or a waiver of any type.
E. Self- insured Retentions. Any self- insured retentions must be declared to
and approved by City. City reserves the right to require that self- insured
retentions be eliminated, lowered, or replaced by a deductible. Self -
insurance will not be considered to comply with these requirements unless
approved by City.
F. City Remedies for Non - Compliance. If Licensee or any subcontractor fails
to provide and maintain insurance as required herein, then City shall have
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.
Rick Heil Page C -3
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Attachment CC 2
Corona del Mar Certified Farmers' Market
Aerial of Market
Attachment CC 2
Corona del Mar Certified Farmers' Market
Market Layout
10' x 10' vendor stall
ATTACHMENT CC -3
LICENSE TO USE PROPERTY
(CERTIFIED FARMERS MARKET)
THIS LICENSE TO USE PROPERTY FOR A FARMERS MARKET ( "License ") is made
and entered into as of this 12th day of May, 2009, by and between the CITY OF
NEWPORT BEACH, a Municipal Corporation ( "City "), and Rick Heil, an individual,
( "Licensee "), and is made with reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of the
City.
B. Licensee has operated a Certified Farmers Market, in accordance with the Food
and Agriculture Code Section 47000 et seq. implementing regulations, 3
California Code of Regulations Section 1392, et seq. (hereinafter "Certified
Farmers Market ") in Newport Beach pursuant to an Encroachment Agreement
since 1996.
C. Licensee has requested that he be allowed to continue to operate the Certified
Farmers Market at the public parking lot owned by the City of Newport Beach
located at the corner of Marguerite Avenue and Bayside Drive, and the smaller
municipal lot across and including a portion of Larkspur Street, in Corona del
Mar, Newport Beach, ( "License Area "), as depicted on attached Exhibit A.
D. Licensee represents that he has the requisite skills and experience to operate a
Certified Farmers Market.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
1. Term. The term of this License shall commence on the above written
date, and shall terminate on the 12th day of May, 2014, unless terminated earlier as set
forth herein.
2. License Fee. Licensee shall pay the City $130.00 per month which
amount shall be due and payable on the first of each month. Late payments will be
assessed a penalty charge of thirty (30) percent.
3. The Purpose of this License. The purpose of this License is to permit the
operation of a Certified Farmer's Market within the License Area as is shown on Exhibit
A, attached to this License and incorporated into this License by reference. Use of area
outside the License Area will not be allowed unless prior permission is given in writing
1
by the City. Licensee agrees to restrict the use of the License Area only for a Certified
Farmers Market, and not to use or permit the use of the License Area for any other
purpose without first obtaining the prior written consent of City, which consent may be
withheld in City's sole discretion.
4. Conditions of License. Licensee shall comply with the following conditions
prior to operation of the first Certified Farmer's Market pursuant to this License:
A. Licensee shall procure and maintain any and all required
certifications, permits, and licenses to operate the Certified Farmers Market. Licensee
shall provide the City Planning Department with a copy of all required permits, including
without limitation those permits as may be issued by the State of California, Department
of Agriculture, the Orange County Agricultural Commissioner, the Orange County
Health Department, and the City of Newport Beach.
B. Licensee shall submit for review and obtain approval for all
advertising and directional signage from the Public Works Department and the Planning
Department.
C. The Licensee shall work with adjacent commercial property owners
to reach agreement over the use of parking facilities or develop a shared use parking
plan, as determined and approved by the Planning Director. City Staff may assist in
obtaining approval.
D. Licensee shall submit a site plan and /or floor plan showing the
layout of the Certified Farmer's market sales areas, for review and approval by the
Planning Department and the Public Works Department. If the Planning Department
and the Public Works Department determine that it is necessary, the Licensee shall
obtain building permits and /or any other permits required for any proposed
improvements.
5. Conditions of Operation.
A. The Certified Farmers Market may operate each Saturday from
9:00 a.m. to 1:00 p.m., commencing on May 23, 2009. Licensee shall be present during
each and every Certified Farmers Market from commencement of set up to the
completion of clean up. Set up of the Certified Farmers Market shall not occur prior to
7:30 a.m. Licensee shall ensure that the License Area is returned, clean and free of
debris, to its original condition by no later than 3:00 p.m. on the same day. City
reserves the right to modify the hours of set up and operation, within the City's sole
discretion.
2
i
B. On any occasion when Licensee cannot be present during the
operation of a Certified Farmers Market, Licensee may provide a substitute qualified
person to manage the operations, subject to prior written approval of the City.
C. Licensee shall operate the Certified Farmers Market in accordance
with all applicable provisions of the statutes, rules and regulations of the State of
California, the ordinances, and regulations of the County of Orange, and the Charter
and Ordinances of the City of Newport Beach.
D. Licensee shall recruit and retain certified producers and producers
for the Certified Farmers Market, verify that individual vendors are certified producers
within the meaning of 3 California Code of Regulations 1392.2 (e), or producers selling
non - certifiable agricultural products produced by themselves, and ensure that vendors
adhere to all applicable rules and regulations concerning product quality and that the
products offered for sale by vendors are pest and disease free. Licensee shall obtain a
completed Liability Release Statement from each vendor, prior to participation in any
Certified Farmers Market, in the form of Exhibit B attached to this License. Licensee
shall not allow any person or organization to participate in the Certified Farmers Market
until a completed application and Liability Release, is received by City.
E. No more than 40 vendors shall display and /or sell products at the
Certified Farmers Market. No additions, enlargements or modifications of uses or
structures within the License Area shall be allowed without prior approval of the City.
F. Licensee shall be responsible for setup, operation, maintenance,
sanitation and clean up of the Certified Farmers Market as set forth below:
(i) Set up shall include placement of vendors in accordance
with the approved site plan;
(ii) Operation shall be conducted in accordance with 3 California
code of Regulations, Section 1392.1, et seq., and within the guidelines set forth in the
State of California Department of Agricultural marketing plan;
(iii) After the completion of each Certified Farmers Market,
Licensee shall be responsible for properly disposing of all trash that has accumulated
from the operations of the Certified Farmers Market. Maintenance, sanitation, and
clean up shall be conducted within such rules and guidelines as may be promulgated by
the Orange County Health Department and the City of Newport Beach.
G. All loading and unloading of merchandise, vendor booths and other
related improvements shall take place within the License Area.
3
H. The site plan shall be designed and operated so as to conform to
access standards set forth by Title 24 of the Uniform Building Code (handicapped
access requirements).
I. Food items shall not be processed, cooked or packaged on site.
Prepared food items shall not be sold for on -site consumption.
J. Only a Certified Farmers Market may be operated in the License
Area. Licensee may not operate or conduct any other event or enterprise unless
Licensee receives required additional approvals from the City.
K. Sale or consumption of alcoholic beverages is not permitted at the
Certified Farmer's Market.
L. The Certified Farmer's Market shall not create a significant impact
to existing City police services, as determined by the City's Chief of Police. The
Licensee may be required to secure a private security guard or guards and /or reimburse
the City for additional police services including City Traffic Officer services if these
services are required on a regular basis, as determined by the City's Chief of Police.
M. Licensee shall comply with all traffic regulations established for the
operation of the Certified Farmers Market by the City Traffic Engineer.
N. Licensee covenants and agrees that Licensee shall: (i) not use the
License Area for any unlawful purpose; (ii) use the License Area in a careful and proper
manner in accordance with this License; and (iii) not bring or use any Hazardous
Materials, as defined by state or federal law, on the License Area.
6. Termination of License. Notwithstanding the term of this License, this
License may be terminated during the term or any extended term in the following
manner:
A. By Licensee: At any time, without cause upon the giving of thirty
(30) days written notice of termination to City; or
B. By City: At any time, without cause upon the giving of thirty (30)
days written notice of termination to Licensee; or
C. If, after written notice of default to Licensee of any of the terms or
conditions of this License, Licensee fails to cure or correct the default within 10 days of
receipt of written notice, City may immediately terminate the License.
7. Administration. This License will be administered by the Planning
Department. Kathlyn Bowden shall be the Project Administrator and shall have the
authority to act for City under this License. The Project Administrator or his /her
authorized representative shall represent City in all matters pertaining to this License.
El
8. Indemnity & Liability for Damages.
A. To the fullest extent permitted by law, Licensee shall indemnify,
defend and hold harmless City, its City Council, boards and commissions, officers,
agents, volunteers, and employees (collectively, the "Indemnified Parties ") from and
against any and all claims (including, without limitation, claims for bodily injury, death or
damage to property), demands, obligations, damages, actions, causes of action, suits,
losses, judgments, fines, penalties, liabilities, costs and expenses (including, without
limitation, attorney's fees, disbursements and court costs) of every kind and nature
whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any
manner relate (directly or indirectly) to any breach of the terms and conditions of this
License, any work performed or services provided under this License including, without
limitation, defects in workmanship or materials or Licensee's presence or activities
conducted that relate in any way to this License (including the negligent and /or willful
acts, errors and /or omissions of Licensee, employees, vendors, suppliers, and anyone
employed directly or indirectly by any of them or for whose acts they may be liable or
any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to
require Licensee to indemnify the Indemnified Parties from any Claim arising from the
sole negligence or willful misconduct of the Indemnified Parties. Nothing in this
indemnity shall be construed as authorizing any award of attorney's fees in any action
on or to enforce the terms of this License. This indemnity shall apply to all claims and
liability regardless of whether any insurance policies are applicable. The policy limits do
not act as a limitation upon the amount of indemnification to be provided by the
Licensee.
B. Licensee shall be liable and responsible for the security, repair and
maintenance of the License Area to the extent necessitated by Licensee's use of the
License Area under this License, for such time as this License is in effect. Licensee
shall use care to protect the License Area and restore it to its original condition to the
satisfaction of the City when the License Area is not in use by Licensee.
9. Insurance. Without limiting Licensee's indemnification of City, and prior
to commencement of the Certified Farmers Market, Licensee shall obtain, provide and
maintain at its own expense during the term of this License, a policy or policies of
liability insurance of the type and amounts described below and in a form satisfactory to
City.
A. Certificates of Insurance. Licensee shall provide certificates of
insurance with original endorsements to City as evidence of the insurance coverage
required herein. Insurance certificates must be approved by City's Risk Manager prior
to commencement of performance or issuance of any permit. Current certification of
insurance shall be kept on file with City at all times during the term of this License.
5
B. Signature. A person authorized by the insurer to bind coverage on
its behalf shall sign certification of all required policies.
C. Acceptable Insurers. All insurance policies shall be issued by an
insurance company currently authorized by the Insurance Commissioner to transact the
business of insurance in the State of California, with an assigned policyholders' Rating
of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the
latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk
Manager.
D. Coverage Requirements.
i. Workers' Compensation Coverage. Licensee shall maintain
Workers' Compensation Insurance and Employer's Liability Insurance for his or her
employees in accordance with the laws of the State of California. In addition, Licensee
shall require each contractor or subcontractor, as applicable, to similarly maintain
Workers' Compensation Insurance and Employer's Liability Insurance in accordance
with the laws of the State of California for all of the contractor's and subcontractor's
employees. Any notice of cancellation or non - renewal of all Workers' Compensation
policies must be received by City at least thirty (30) calendar days (10 calendar days
written notice of non - payment of premium) prior to such change. The insurer shall
agree to waive all rights of subrogation against City, its officers, agents, employees and
volunteers for losses arising from work performed by Licensee for City.
ii. General Liability Coverage. Licensee shall maintain
commercial general liability insurance in an amount not less than one million dollars
($1,000,000) per occurrence for bodily injury, personal injury, and property damage,
including without limitation, contractual liability. If commercial general liability insurance
or other form with a general aggregate limit is used, either the general aggregate limit
shall apply separately to this License, or the general aggregate limit shall be at least
twice the required occurrence limit.
iii. Automobile Liability Coverage. To the extent automobiles,
trucks, or other motor vehicles are used in connection with the operation of the Certified
Farmers Market, Licensee and each vendor shall certify and provide proof of automobile
insurance covering activities related to the Certified Farmers Market in an amount
satisfactory to the City's Risk Manager.
E. Endorsements. Each general liability policy shall be endorsed with
the following specific language:
0
i. The City, its elected or appointed officers, officials,
employees, agents and volunteers are to be covered as additional insureds with respect
to liability arising out of work performed by or on behalf of the Licensee.
ii. This policy shall be considered primary insurance as
respects to City, its elected or appointed officers, officials, employees, agents and
volunteers as respects to all claims, losses, or liability arising directly or indirectly from
the Licensee's operations. Any insurance maintained by City, including any self- insured
retention City may have, shall be considered excess insurance only and not contributory
with the insurance provided hereunder.
iii. This insurance shall act for each insured and additional
insured as though a separate policy had been written for each, except with respect to
the limits of liability of the insuring company.
iv. The insurer waives all rights of subrogation against City, its
elected or appointed officers, officials, employees, agents and volunteers.
V. Any failure to comply with reporting provisions of the policies
shall not affect coverage provided to City, its elected or appointed officers, officials,
employees, agents or volunteers.
vi. The insurance provided by this policy shall not be
suspended, voided, canceled, or reduced in coverage or in limits, by either party except
after thirty (30) calendar days (10 calendar days written notice of non - payment of
premium) written notice has been received by City.
F. Timely Notice of Claims. Licensee shall give City prompt and
timely notice of claim made or suit instituted arising out of or resulting from Licensee's
performance under this License.
G. Additional Insurance. Licensee shall also procure and maintain, at
its own cost and expense, any additional kinds of insurance, which in its own judgment
may be necessary for its proper protection and prosecution of the work.
10. Independent Relationship. It is understood that Licensee is not an agent or
employee of City. The manner and means of operating the Certified Farmers Market
are under the control of Licensee, except to the extent they are limited by statute, rule or
regulation and the expressed terms of this License. Nothing in this License shall be
deemed to constitute approval for Licensee or any of Licensee's employees or agents,
to be the agents or employees of City. Licensee shall have the responsibility for and
control over the means of performing the work, provided that Licensee is in compliance
with the terms of this License. Anything in this License that may appear to give City the
7
right to direct Licensee as to the details of the performance or to exercise a measure of
control over Licensee shall mean only that Licensee shall follow the desires of City.
11. Cooperation. Licensee agrees to work closely and cooperate fully with City
and any other agencies that may have jurisdiction or interest in the work to be
performed. City agrees to cooperate with the Licensee in regards to this License.
12. City Policy. Licensee shall discuss and review all matters relating to this
License with City representatives in advance of all critical decision points to ensure the
Certified Farmers Market proceeds in a manner consistent with City goals and policies.
13. Prohibition against Assignment and Transfer. This License shall not be
assigned, transferred contracted or subcontracted out without the prior written approval
of City which approval may be withheld in the City's sole discretion.
14. Conflict of Interest. The Licensee or its employees may be subject to the
provisions of the California Political Reform Act of 1974 (the "Act "), which (a) requires
such persons to disclose any financial interest that may foreseeably be materially
affected by the work performed under this License, and (b) prohibits such persons from
making, or participating in making, decisions that will foreseeably financially affect such
interest. If subject to the Act, Licensee shall conform to all requirements of the Act.
Failure to do so constitutes a material breach and is grounds for immediate termination
of this License by City. Licensee shall indemnify and hold harmless City for any and all
claims for damages resulting from Licensee's violation of this Section.
15. Notice. All notices, demands, requests or approvals to be given under the
terms of this License shall be given in writing, and conclusively shall be deemed served
when delivered personally, or on the third business day after the deposit thereof in the
United States mail, postage prepaid, first -class mail, addressed as hereinafter provided.
All notices, demands, requests or approvals from Licensee to City shall be addressed to
City at:
Attn: Kathlyn Bowden
Planning Department
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA, 92663
Phone: 949 - 644 -3230
Fax: 949 - 644 -3224
All notices, demands, requests or approvals from City to Licensee shall be
addressed to Licensee at:
E
Attn: Rick Heil
Corona del Mar Certified Farmers' Market
P.O. Box 2781
Capistrano Beach, CA 92626
Phone: 949 - 361 -0735
Fax: 949 - 361 -8748
16. Compliance with all Laws. Licensee shall at its own cost and expense
comply with all statutes, ordinances, regulations and requirements of all governmental
entities, including federal, state, county or municipal, whether now in force or hereinafter
enacted. In addition, all work prepared by Licensee shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be
subject to approval of the Project Administrator and City.
17. Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent
breach of the same or any other term, covenant or condition contained herein, whether
of the same or a different character.
18. Integrated Agreement. This License represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
preliminary negotiations and agreements of whatsoever kind or nature are merged
herein. No verbal agreement or implied covenant shall be held to vary the provisions
herein.
19. Interpretation. The terms of this License shall be construed in accordance
with the meaning of the language used and shall not be construed for or against either
party by reason of the authorship of the License or any other rule of construction which
might otherwise apply.
20. Amendments. This License may be modified or amended only by a
written document executed by both Licensee and City and approved as to form by the
City Attorney.
21. Severability. If any term or portion of this License is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this License shall continue in full force and effect.
22. Controlling Law and Venue. The laws of the State of California shall
govern this License and all matters relating to it and any action brought relating to this
License shall be adjudicated in a court of competent jurisdiction in the County of
Orange.
3
23. Taxes. Licensee acknowledges that the License granted herein may be
subject to possessory interest taxes. Licensee shall have the sole obligation to pay any
taxes, fees and assessments, plus applicable penalties and interest, which may be
imposed by law and arise out of Licensee's License hereunder. Licensee shall
indemnify, defend and hold harmless City against any and all such taxes, fees,
penalties or interest assessed, or imposed against City hereunder.
24. No Third Party Rights. The Parties intend not to create rights in or grant
remedies to, any third party as a beneficiary of this License, or of any duty, covenant,
obligation or undertaking established herein.
IN WITNESS WHEREOF, the parties have caused this License to be executed on the
day and year first written above.
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
By:
A K2/?
Assistant City Attorney
ATTEST-
By: B
Leilani Brown,
City Clerk
10
CITY OF
A Munic
Mayor
LICENSEE:
NPORT BEACH,
CorD"rr tion
By: r
(Corporate Officer)
Title:_ (✓1i /2 ('Z , r� 9r1di — Or
Print Name:
(Financial Officer)
Print Name:
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Exhibit A
EXHIBIT B
Corona del Mar Certified Farmers Market
P.O. Box 2781, Capistrano Beach, CA 92626
949 - 361 -0735
Governing Rules and Regulations for the Corona del Mar
Certified Farmers Market
It is agreed that all vendors including any representatives or employee thereof shall be
responsible for the care, maintenance, and upkeep of any and all space allocated by the
Corona del Mar Certified Farmers Market.
LIABILITY RELEASE STATEMENT
I also understand that the market's insurance company and the City require me to sign
a liability release statement, attached hereto as Attachment 1, which I agree to execute
and have executed by my representatives and employees prior to taking part in the
Farmers Market
The vehicle or vehicles that I used at the market are currently insured with the following
insurance company.
AUTO INSURANCE COMPANY
I hereby state that I have read, understand, and agree to follow all rules and procedures
outlined in the Governing Rules and Regulations, a copy of which has been given to
me. I also understand that failure to conform to said rules and guidelines may result in
the privilege of my participation in the market being revoked.
Grower's Signature
Grower's Name (printed)
RETURN WITH APPLICATION
Date
CONDITIONS OF PARTICIPATION: (DUPLICATE FOR YOUR RECORDS).
1. Vendor shall provide his own equipment, supplies, or other power that may be required.
2. Market will be held rain or shine.
3. Farmer shall maintain his assigned space in a neat and orderly manner, and shall minimize hazards to himself, to his
products, and to the public. At the end of the day, farmer shall clean his area, leaving it as neat as when he arrived.
4. Farmer shall be responsible for his own sales, possess a resale number (i.e. nursery), make provision for accepting cash
as is his usual practice.
5. DISCLAIMER: The above information is correct to the best of my knowledge. I have read the Application and if my
application is accepted, I hereby give the City of Newport Beach & Corona del Mar, Corona del Mar Certified Farmers
Market and the Market Managers the right to use photographs taken of me or my activity for reproduction in any medium
for purposes of trade, advertising, display, exhibition, or editorial use.
6. 1 have inspected the event site and assured myself that the area is safe and further agree that I will not participate in the
event unless 1 am satisfied that the area and conditions are safe. I voluntarily assume all risk arising from conditions
related to the event site by myself or others.
7. 1 hereby acknowledge and accept the above conditions of participation and agree to assume all responsibility for the
safety of myself, my equipment, and shall not permit potentially hazardous situations within or immediately adjacent to my
assigned space. I further agree to release the sponsor (The City of Newport Beach & Corona del Mar), Corona del Mar
Certified Farmers Market, and the Market Managers from any and all liability therefore. I also acknowledge receipt of a
copy of this signed application.
8. 1 understand that I must obtain my own insurance if I desire insurance coverage for the event.
NOTE: These conditions of participation are to be retained for your records.
CONDITIONS OF PARTICIPATION:
1. Vendor shall provide his own equipment, supplies, or other power that may be required.
2. Market will be held rain or shine.
3. Farmer shall maintain his assigned space in a neat and orderly manner, and shall minimize hazards to himself, to his
products, and to the public. At the end of the day, farmer shall clean his area, leaving it as neat as when he arrived.
4. Farmer shall be responsible for his own sales, possess a resale number (i.e. nursery), make provision for accepting cash
as is his usual practice.
5. DISCLAIMER: The above information is correct to the best of my knowledge. 1 have read the Application and if my
application is accepted, I hereby give the City of Newport Beach & Corona del Mar, Corona del Mar Certified Fanners
Market and the Market Managers the right to use photographs taken of me or my activity for reproduction in any medium
for purposes of trade, advertising, display, exhibition, or editorial use.
6. 1 have inspected the event site and assured myself that the area is safe and further agree that I will not participate in the
event unless I am satisfied that the area and conditions are safe. I voluntarily assume all risk arising from conditions
related to the event site by myself or others.
INITIAL HERE
7. 1 hereby acknowledge and accept the above conditions of participation and agree to assume all responsibility for the
safety of myself, my equipment, and shall not permit potentially hazardous situations within or immediately adjacent to my
assigned space. I further agree to release the sponsor (The City of Newport Beach & Corona del Mar), Corona del Mar
Certified Farmers Market, and the Market Managers from any and all liability therefore. I also acknowledge receipt of a
copy of this signed application.
8. 1 understand that I must obtain my own insurance if I desire insurance coverage for the event.
INITIAL HERE
Applicant Signature
Address Telephone Date
ATTACHMENT
TO EXHIBIT B
CITY OF NEWPORT BEACH — FARMERS MARKET
AGREEMENT ASSUMING RISK OF INJURY OR DAMAGE, WAIVER
AND RELEASE OF CLAIMS AND INDEMNITY AGREEMENT
WHEREAS, the City of Newport Beach ( "City ") has entered into a license
agreement with Rick Heil to allow Rick Heil to use the property located at the public
parking lot owned by the City of Newport Beach located at the corner of Marguerite
Avenue and Bayside Drive, and the smaller municipal lot across and including a portion
of Larkspur Street, in Corona del Mar, Newport Beach, California for a Certified Farmers
Market ( "Farmers Market');
WHEREAS, I,
being over the age of eighteen (18) have made a voluntary request to participate in the
Farmers Market; and
WHEREAS, in consideration of acceptance of my entry in the Farmers Market, I
agree on behalf of myself, my heirs, my executors, and administrators, to waive,
release, and forever discharge any and all rights and claims for damages which may
hereafter accrue to me against the below listed agencies, companies or entities, their
officials, employees, as provided herein; and
WHEREAS, the City of Newport Beach is willing to allow me to participate in the
Farmers Market pursuant to the following conditions.
NOW, THEREFORE, in consideration of the permission given to participate in
the Farmers Market, I do hereby agree to the following:
1. I RECOGNIZE THAT PARTICIPATION IN THE FARMERS MARKET IS
DANGEROUS AND CONTAINS RISK OF PERSONAL INJURY, DEATH,
DISFIGUREMENT, DISABILITY, OR PROPERTY DAMAGE OR LOSS
( "DAMAGES ").
2. 1 HAVE BEEN FULLY INFORMED OF ALL ASPECTS OF THE
FARMERS MARKET AND ALL ASPECTS OF THE ACTIVITIES THAT I WILL BE
PARTICIPATING IN AT THE FARMERS MARKET. DESPITE THE POTENTIAL RISK
OF DAMAGES TO ME AS A RESULT OF MY PARTICIPATION IN THE FARMERS
MARKET, 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, Corona del Mar
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Certified Farmers Market, Rick Heil, the Market Managers or the County of Orange
including, but not limited to, strenuous physical activity or exertion, tripping or falling and
being struck by objects or persons. Such risks may result in injuries that include, but
are not limited to, sprains, strains or tear of muscles or ligaments; fracture or dislocation
of joints or bones; head or facial injuries; spinal cord or internal injuries; or other
DAMAGES related to pre- existing medical conditions I may have.
4. To the maximum extent permitted by law, I hereby, for myself, my heirs,
executors, administrators, assigns or anyone who might claim on my behalf, agree not
to bring any claim, and waive, release and discharge the City of Newport Beach,
Corona del Mar Certified Farmers Market, Rick Heil, the Market Managers or the
County of Orange, its officials, officers, agents, volunteers, consultants, attorneys and
employees ( "Released Parties') from any and all duty to me; liability for any DAMAGES
to me; and /or liability for any damages, losses, costs, and expenses arising out of or in
the course of my participation in the Farmers Market, including all liability for any active
or passive negligence by the Released Parties. This release and waiver extends to all
claims of every kind or nature whatsoever, foreseen or unforeseen, known or unknown.
I expressly intend this waiver and release to be effective, regardless of whether the
claim of liability is asserted in negligence, strict liability or other theory of recovery.
5. 1 hereby for myself, my heirs, executors, administrators, and assigns,
agree to defend and indemnify the Released Parties against any and all manner of
actions, causes of actions, suits, debts, claims, demands, or damages or liability or
expense of every kind and nature incurred or arising by reason of any actual or claimed
negligent or wrongful act or omission of mine while participating in the Farmers Market.
I HAVE READ, UNDERSTAND AND AGREE TO THE WAIVER AND RELEASE OF
LIABILITY. I UNDERSTAND THAT BY MY SIGNATURE ON THIS DOCUMENT, I AM
WAIVING MY RIGHTS, INCLUDING ANY RIGHTS I MAY HAVE AGAINST THE
RELEASED PARTIES
Dated:
Witness
Original: To Records
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Signature
Printed Name
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
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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
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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
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