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HomeMy WebLinkAboutC-6223 - Revocable License Agreement for Temporary Use of City Property for a Certified Farmer's Market at McFadden Square and Newport Pierc4) N AMENDMENT NO. ONE TO REVOCABLE LICENSE AGREEMENT V 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 AMENDMENT NO. ONE TO REVOCABLE LICENSE AGREEMENT FOR TEMPORARY USE OF CITY PROPERTY FOR A CERTIFIED FARMERS' MARKET ("Amendment No. One") is made and entered into as of this 8th day of November, 2019 ("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. On September 13, 2015, City and Licensee entered into a Revocable License Agreement ("Agreement"). B. The parties desire to enter into this Amendment No. One to extend the term of the Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 111=11W, Pursuant to Sections 4.1 & 4.2 of the Agreement, the parties would like to renew for one (1) additional five (5) year term. Section 4.1 of the Agreement is amended in its entirety and replaced with the following: "The term of the Agreement shall commence on the Effective Date and shall continue until December 31, 2024, unless terminated earlier as set forth herein." Section 4.2 of the Agreement shall be removed in its entirety. 2. INSURANCE Exhibit D of the Agreement shall be deleted in its entirety and replaced with Exhibit D-1, attached hereto and incorporated herein by reference. Any reference to Exhibit D in the Agreement shall hereafter refer to Exhibit D-1 attached hereto. Sprouts of Promise Foundation Page 1 INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE] Sprouts of Promise Foundation Page 2 IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be executed on the dates written below. APPROVED AS TO FORM: CITY OF NEWPORT BEACH, CITY ATTORNEY'S OFFICE Date: I a a California munici al corporation Date: q -;hj By: By: aron \q G c K. Leung o e City Atttorney \o?� anager d}� ATTEST: /n LICENSEE: Sprouts of Promise Date: / ` Foundation., a California 501 (c)(3) nonprofit corporation Date:_ 01, By: C�✓t'NO By: Andefis Leilani I. Brown ark n City Clerk Chief Executive Officer Attachments: a -i0 -lac By: 112;64,��a Cathie Anderson Secretary [END OF SIGNATURES] Exhibit D-1 — Insurance Requirements %1.- Al't � Sprouts of Promise Foundation Page 3 EXHIBIT D-1 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. B. 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, products -completed, 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. Sprouts of Promise Foundation Page D-1 C. Automobile Liability Insurance. Licensee shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of Licensee arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit each accident. 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its 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 vendors, participants, service providers, and 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. Additional insured endorsements shall be at least as broad as ISO Form(s) CG 20 10 11 85; or CG 20 10 and CG 20 37. 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. 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 Sprouts of Promise Foundation Page D-2 kept on file with City at all times during the term of this Agreement. City reserves the right to require complete, certified copies of all required insurance policies, at any time. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least fifteen (15) days prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or reduced, Licensee shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. City reserves the right to require complete, certified copies of all required insurance policies, at any time. B. City's Right to Revise Requirements. City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Licensee sixty (60) calendar days' advance written notice of such change. C. Enforcement of Agreement Provisions. Licensee acknowledges and agrees that any actual or alleged failure on the part of City to inform Licensee of non-compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. D. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If Licensee maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for higher limits maintained by Licensee. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to City. 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 Sprouts of Promise Foundation Page D-3 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. I. Licensee and all vendors, participants, service providers, and subcontractors shall be subject to the insurance requirements contained herein unless otherwise specified in the provisions above or written approval is granted by the City. Licensee shall verify that all vendors, participants, service providers, and subcontractors maintain insurance meeting all the requirements stated herein, and Licensee shall ensure that City is an additional insured on insurance required from all vendors, participants, service providers, and subcontractors. Sprouts of Promise Foundation Page D-4 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 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. 1 =1 11111 D] 4 i! 61 x_1:7 ;f_1 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 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 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 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 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 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 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 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 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 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 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 r, By: Aaron C. Harp City Attorney ATTEST - Date: 3 City Clerk Attachments: Exhibit A Exhibit B Exhibit C Exhibit D CITY OF NEWPORT BEACH, a California m nicipal corporation Date: h f Edward D. Selich Mayor LICENSEE: Sprouts of Promise Foundation, a California 501(c)(3) nonprofit organization Date: 2Z2 By: M rk Anderson President Depiction of Premises Council Policy L-13 Vendor Liability Release Statement Insurance Requirements EXHIBIT A DEPICTION OF LICENSE AREA Sprouts of Promise Foundation Page A-1 Newport Beach GIS R2EWPORr o � C91ICOR�`P & NeWDort Pier 0 0 1,000 2,000 Feet .,,vtyS RD.� y t� � T OA eateyY t- gtvo w ,� e- �CEAN TRONA ark C Aa a 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.eagleaedal.com yo iJ rl t, OA eateyY t- gtvo w ,� e- �CEAN TRONA ark C Aa a 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.eagleaedal.com Iden Square ' S R Pier _ . Newport Beach Disclaimer: Every reasonable effort has been made to assure the accuracy of the data provided, however, The City of GIS0 Newport Beach and its employees and agents disclaim any and all responsibility from or relating to any results obtained in its use. ° @ 0 200 400 Imagery: 2009-2013 photos provided by Eagle Feet Imaging www.eagleaerial.com 1 F Ben Carlson Memorial Location O ' X O O ILO X U, .` O O .i2 O O O X x o X � O L O rt X O - O A0, + i_ X F O x A Am . O X O co O X O � � O O O X O O X O O X ` O Z O r 4 X X O X OUl Z O O o O X X O X OUl O O X O O ti OUl O O X 00 X �{ . 1 611.7' NEWPORT PIER A 1. I 1 F r 5'r 140'= 700 sqft Newport Beach GIS �cW PpR T 80 Feet Disclaimer: Every reasonable effort has been made to assure the accuracy of the data provided, however, The City of Newport Beach and its employees and agents disclaim any and all responsibility from or relating to any results obtained in its use. Imagery: 2009-2013 photos provided by Eagle Imaging www.eagleaedal.com l �ti1�44 10 9 % J ��,-Y4 -'I • - '2A 7'l �¢ •1i o 7! y! Loading Area ' � o �r F\ �i - ♦ ,rix?., (� • `P tt'0( ' Newport Beach Disclaimer: Every reasonable effort has been made to assure the accuracy of the data provided, however, The City of GIS Newport Beach and its employees and agents disclaim any and all responsibility from or relating to WPORr any results obtained in its use. ° ( °e 0 40 80 _ - - Jmagery: 200&2013 photos provided by Eagle Imaging www.eagleaedal.00m „a ' Feet Pedestrian and Bike Paths of Travel a }� eon y 47 y 0 AIM 4. s` f � r S 106 * v a t I 102 4�6 r• l ^S �S '�/ 100 0 i t a Ben Carlson Memorial Location Exhibitor booths must not encroach into these areas. J 7E Po ti� e ,p 4f 91 �f Newport Beach Disclaimer: Every reasonable effort has been made to assure the accuracy of the data provided, however, The City of GIS0 Newport Beach and its employees and agents disclaim any and all responsibility from or relating to any results obtained in its use. 0 40 80 - = I Imagery: 2009-2013 photos provided by Eagle s Feet Imaging www.eagleaerial.com 4191201 EXHIBIT B COUNCIL POLICY L-13 Sprouts of Promise Foundation Page B-1 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, 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 T" 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 - `A 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 PIan, 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. Special Events. Special events at the plaza shall be limited to the decorative paved area at the base of the pier shown as Location "P' on the Access PIan. Special event support 3 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 m •re ,•,'2-YENV. (ATT CH;MENT) L-13 A4bi tc �77 4 < -r elfT t .w'o ASS iK roi [[LL =-O _ 1 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 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 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 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 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. Sprouts of Promise Foundation Page D-3