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:
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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
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By:
By:
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G c K. Leung
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City Atttorney
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ATTEST: /n
LICENSEE: Sprouts of Promise
Date: / `
Foundation., a California 501 (c)(3)
nonprofit corporation
Date:_
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By: C�✓t'NO
By:
Andefis
Leilani I. Brown
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City Clerk
Chief Executive Officer
Attachments:
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By: 112;64,��a
Cathie Anderson
Secretary
[END OF SIGNATURES]
Exhibit D-1 — Insurance Requirements
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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
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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.
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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.
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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
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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.
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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.
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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
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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
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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
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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
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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