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HomeMy WebLinkAboutC-4357 - Revocable License Agreement for Temporary Use of City Property for Corona del Mar Certified Farmers' Marketr- 1j) AMENDMENT NO. TWO TO U REVOCABLE LICENSE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND RICK HEIL FOR TEMPORARY USE OF CITY PROPERTY FOR CORONA DEL MAR CERTIFIED FARMERS' MARKET THIS AMENDMENT NO. TWO TO REVOCABLE LICENSE AGREEMENT ("Amendment No. Two") is made and entered into as of this 13th day of May, 2024 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and RICK HEIL, an individual ("Licensee"), and is made with reference to the following: RECITALS A. On May 13, 2014, City and Licensee entered into a Revocable License Agreement For Temporary Use of City Property for a Certified Farmers' Market ("License"). B. On April 15, 2019, City and Licensee entered into Amendment No. One to the Agreement to extend the term of the License to May 12, 2024 ("Amendment No. One"). C. The parties desire to enter into this Amendment No. Two to extend the term of the License. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: Section 4 of the License is amended in its entirety and replaced with the following: "The term of this License shall commence on the Effective Date and shall terminate on December 31, 2024, unless terminated earlier as set forth herein." 2. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement, as amended, shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE] IN WITNESS WHEREOF, the parties have caused this Amendment No. Two to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: 211 C? IZ4-( By: ron C. Harp y MS City Attorney y ATTEST: � � � a Date: - R'�Mr pli PIPE Z W--./w 2 PEW= :. City Clerk CITY OF NEWPORT BEACH, a California munic' al corporation Date: Zq By: Gr c . Leung i Manager LICENSEE: Rick Heil, an individual Date: Signed in Counterpart By: Rick Heil [END OF SIGNATURES] Rick Heil Page 2 IN WITNESS WHEREOF, the parties have caused this Amendment No. Two to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: i i 7 /ZK By. � A on C. Harp `'�S Ci y Attorney X,y ATTEST: Date: Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: By: Grace K. Leung City Manager LICENSEE: Rick Heil, an individual Date: ff-c,� -4 By: Rick Heil [END OF SIGNATURES] Rick Heil Page 2 q 2 260 P+ 78 ® `. Q Search -t& Insured Insured Name Name: Corona Del Mar Certified Farmers Corona Del Mar Certified Farmers Market Market • n U Account Number: FV00000935 Corona Del Mar Certified Farmers Address: 2316 Calle Almirante, San Clemente, CA, 92673 Active Records Only Status: Compliant with Waived Advance Search I Deficiencies. Insured Tasks Admin Tools : - Insured View Business Unit(s) IF Print Insured Info sti Insured Notes Account Information History Account Number: FV00000935 Risk Type: Professional �= Deficiencies Services Agreement Coverages Do Not Call: Address Updated: Requirements Address Information Add Mailing Address Physical Address Edit Insured: Corona Del Corona Del Mar Certified Farr Help Mar Certified Market Farmers Video Tutorials Market Address 1: 2316 Calle Larkspur Ave Parking Lot Almirante Address 2: Bayside Dr Parking Lot City: San Newport Beach C'.lamanta v AMENDMENT NO. ONE TO REVOCABLE LICENSE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND RICK HEIL FOR TEMPORARY USE OF CITY PROPERTY FOR CORONA DEL MAR CERTIFIED FARMERS' MARKET THIS AMENDMENT NO. ONE TO REVOCABLE LICENSE AGREEMENT (Amendment No. One") is made and entered into as of this 15th day of April, 2019 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and RICK HEIL, an individual ("Licensee"), and is made with reference to the following: RECITALS A. On May 13, 2014, City and Licensee entered into a Revocable License Agreement For Temporary Use of City Property for a Certified Famers' Market ("License"). B. The parties desire to enter into this Amendment No. One to extend the term of the License. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM Section 4 of this License is amended in its entirety and replaced with the following: "The term of this License shall commence on the Effective Date and shall terminate on May 12, 2024, unless terminated earlier as set forth herein." 2. 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] IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: Y/U /R' By: Aaron C. Harp City Attorney ATTEST: `1 1 L Date: r By: 1 Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: ti-a,3-/9 B drK. Leung Manager LICENSEE: Rick Heil, an individual Date: By: 7404, Rick Heil [END OF SIGNATURES] Rick Heil Page 2 REVOCABLE LICENSE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND RICK HEIL FOR TEMPORARY USE OF CITY PROPERTY FOR CORONA DEL MAR CERTIFIED FARMERS' MARKET THIS REVOCABLE LICENSE AGREEMENT FOR TEMPORARY USE OF CITY PROPERTY FOR A CERTIFIED FARMERS' MARKET ("License") is made and entered into as of this 13th day of May, 2014 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and RICK HEIL, an individual ("Licensee"), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of the City. B. A certified farmers' market is defined by the California Code of Regulations as a location approved by the county agricultural commissioner of the county where agricultural products are sold by producers or certified producers directly to consumers or to individuals, organizations, or entities that subsequently sell or distribute the products directly to end users. A certified farmers' market may only be operated by one or more certified producers, by a nonprofit organization, or by a local government agency (3 CCR § 1392.2(a)). C. Licensee is a producer and has operated a certified farmers' market, in accordance with the Food and Agriculture Code Section 47000 et seq. (implementing regulations) and California Code of Regulations, Title 3, Section 1392, et seq. (hereinafter "Certified Farmers' Market") in Newport Beach since 1996. Licensee has requested that he be allowed to continue to operate the Certified Farmers' Market in Corona del Mar on Saturdays. E. In accordance with City Council Policy F-7, whenever an open bid process is not conducted prior to entering a license agreement for City property, the City shall make specific findings setting forth the reasons thereof. The City finds that converting the property to another use or changing the licensee of the property would result in excessive vacancy, which would outweigh other financial benefits and the use of the property provides an essential or unique service to the community that might not otherwise be provided were full market value of the property be required. F. In consideration of the mutual promises and obligations contained in this Agreement, the receipt and sufficiency of which is hereby acknowledged, City hereby grants to Licensee the revocable right to temporarily occupy and use the License Area, and Licensee accepts the same on the following terms and conditions. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. LICENSE 1.1 City grants a non-exclusive license ("License") to Licensee for the term of this Agreement for Licensee to use the City owned public parking lot located at the corner of Marguerite Avenue and Bayside Drive as well as the smaller municipal lot across and including a portion of Larkspur Street, in Corona del Mar, Newport Beach ("License Area"), as further depicted on Exhibit A, which is attached hereto and incorporated herein by reference, on Saturdays for a Certified Famers' Market. 1.2 The License granted herein is subject to the terms, covenants and conditions hereinafter set forth, and Licensee covenants, as a material part of the consideration for this License, to keep and perform each and every term, covenant and condition of this Agreement. 2. USE OF THE LICENSE AREA Licensee's use of the License Area shall be limited to the terms of this Agreement. Use of area outside the License Area shall not be allowed without prior written consent of the City. 3. PERMITS AND LICENSES 3.1 Licensee, at its sole expense, shall obtain and maintain during the term of this Agreement, all appropriate permits, licenses and certifications that may be required by any governmental agency, including without limitation those permits as may be issued by the State of Califomia, Department of Agriculture, the Orange County Agricultural Commissioner, the Orange County Health Department and the City of Newport Beach to operate a Certified Farmers' Market. 3.2 License shall provide the License Administrator, as defined in Section 10 below, with a copy of all required permits, licenses and certificates that may be required by Licensee. 4. TERM 4.1 The term of this License shall commence on the Effective Date and shall continue until May 12, 2019, with the option to renew for one (1) additional five (5) year term at the discretion of the City Manager, unless terminated earlier as set forth herein. 4.2 The City Manager may renew this License for one (1) additional five (5) year term if it is determined that (i) the terms of the Agreement have been complied Rick Heil Page 2 with; (ii) a copy of all required license, permits and certificates are on file with the City's Real Property Administrator; and (iii) the use by Licensee is not causing a negative impact on surrounding properties and uses. Any renewals approved pursuant to this Section must be in writing and approved as to form by the City Attorney for the City. 5. FEES 5.1 Licensee shall pay the City Three Hundred Dollars and 00/100 ($300.00) per month ("License Fee"), which amount shall be due and payable on the first of each month (the "Due Date"), commencing on June 1, 2014. The License Fee shall be pro- rated in the event of a partial month's use of the License Area. 5.2 If Licensee fails to pay the License Fee within thirty (30) days of the Due Date, Licensee shall pay a late charge in an amount equal to ten percent (10%) of the amount that was not timely paid by the Licensee. 5.3 Upon the first anniversary of the Effective Date and upon each anniversary of the Effective Date thereafter, the License Fee shall be adjusted in proportion to changes in the Consumer Price Index, subject to the maximum adjustment set forth below. Such adjustment shall be made by multiplying the License Fee by a fraction, the numerator of which is the value of the Consumer Price Index for the calendar month three (3) months preceding the calendar month for which such adjustment is to be made, and the denominator of which is the value of the Consumer Price Index for the same calendar month immediately prior to Effective Date. The Consumer Price Index to be used in such calculation is the "Consumer Price Index, All Items, 1982-84=100 for All Urban Consumers (CPI-U)", for the Los Angeles -Riverside - Orange County Metropolitan Area, published by the United States Department of Labor, Bureau of Labor Statistics. If both an official index and one or more unofficial indices are published, the official index shall be used. If said Consumer Price Index is no longer published at the adjustment date, it shall be constructed by conversion tables included in such new index. In no event, however, shall the amount payable under this Agreement be reduced below the License Fee in effect immediately preceding such adjustment. The maximum adjustment increase to the Billing Rates, for any year where an adjustment is made pursuant to this Section, shall not exceed 2.5% of the Billing Rates in effect immediately preceding such adjustment. 6. PURPOSE OF THIS LICENSE The purpose of this License is to allow for the operation of a Certified Farmers' Market within the License Area as depicted on Exhibit A. Use of any area outside the License Area shall not be permitted unless prior written consent is provided by the City. Licensee agrees to use the License Area only for the activities described herein, and not to use or permit the use of the License Area for any other purpose without first obtaining the prior written consent of City, which consent may be withheld in City's sole discretion. Rick Heil Page 3 7. CONDITIONS OF LICENSE Licensee shall comply with the following conditions prior to the commencement of use of the License Area: 7.1 Licensee shall procure and maintain any and all required licenses, permits and certifications to operate the Certified Farmers' Market in accordance with Section 3 above. 7.2 Licensee shall submit for review and obtain approval for all advertising and directional signage from the City's Public Works Department and Community Development Department. 7.3 The Licensee shall work with adjacent commercial property owners to reach agreement over the use of parking facilities or develop a shared use parking plan, as determined and approved by the City's Community Development Director. City Staff may assist in obtaining approval. 7.4 Licensee shall submit a site plan and/or floor plan showing the layout of the Certified Farmers' market sales areas, for review and approval by the City's Community Department and Public Works Department. If the City's Community Development and Public Works Department determine that it is necessary, the Licensee shall obtain building permits and/or any other permits required for any proposed improvements. 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 Saturdays from 7:30 a.m. until 3:00 p.m. Set up activities for the Certified Farmers' Market shall not occur prior to 7:30 a.m. The Certified Farmers' Market may operate each Saturday from 9:00 a.m. to 1:00 p.m., respectively. Licensee shall ensure that the License Area is returned, clean and free of debris, to its original condition no later than 3:00 p.m. on the same day. City reserves the right to modify the hours of set up and operation, in the City's sole discretion. 8.2 Licensee shall be present during each and every Certified Farmers' Market from commencement of set up to the completion of clean up. On any occasion when Licensee cannot be present during the operation of a Certified Farmers' Market, Licensee may provide a substitute qualified person to manage the operations, subject to prior written approval of the City. 8.3 The storage of materials is expressly prohibited in the License Area beyond the approved hours of use of the License Area. Rick Heil Page 4 8.4 Licensee shall recruit and retain vendors for the Certified Farmers' Market and verify that all individual vendors are "certified producers" or "producers" within the meaning of California Code of Regulations Title 3, Sections 1392.2(d) and 1392.2(e) and ensure that vendors adhere to all applicable rules and regulations concerning product quality and that the products offered for sale by vendors are pest and disease free. 8.5 Licensee shall obtain a completed Liability Release Statement from each vendor, prior to the vendor's participation in any Certified Farmers' Market, in the form of Exhibit B, which is attached hereto an incorporated herein by reference. Licensee shall not allow any person or organization to participate in the Certified Farmers' Market until a completed application and Liability Release Statement is received by the City. 8.6 Licensee shall annually, upon the anniversary of the Effective Date, provide to the City a current roster of vendors. 8.7 No more than forty (40) vendors shall display and/or sell products at the Certified Farmers' Market. No additions, enlargements or modifications of uses or structures within the License Area shall be allowed without prior approval of the City. 8.8 Licensee shall be responsible for setup, operation, maintenance, sanitation and clean up of the Certified Farmers' Market. Set up shall include placement of vendors in accordance with the approved site plan. Licensee shall be responsible for maintaining the License Area in a clean and orderly fashion during the approved hours of use of the License Area by providing routine removal of foreign material, waste and debris from the License Area. After the completion of each Certified Farmers' Market, Licensee shall be responsible for properly disposing of all trash that has accumulated from the operations of the Certified Farmers' Market. Maintenance, sanitation and clean up shall be conducted within such rules and guidelines as may be promulgated by the Orange County Health Department and the City. 8.9 Operations shall be conducted in accordance with California Code of Regulations Title 3, Section 1392.1, et seq., and within the guidelines set forth in the State of California Department of Agricultural marketing plan. 8.10 All loading and unloading of merchandise, vendor booths and other related improvements shall take place within the License Area. 8.11 The site plan shall be designed and operated so as to conform to access standards set forth by Title 24 of the Uniform Building Code (handicapped access requirements). 8.12 Food items shall not be processed, cooked or packaged on site. Prepared food items shall not be sold for on -site consumption. Rick Heil Page 5 8.13 Only a Certified Farmers' Market may be operated in the License Area. Licensee may not operate or conduct any other event or enterprise unless Licensee receives required additional approvals from the City. 8.14 Sale or consumption of alcoholic beverages is not permitted at the Certified Farmers' Market. 8.15 The Certified Farmers' Market shall not create a significant impact to existing City police services, as determined by the City's Chief of Police. The Licensee may be required to secure a private security guard or guards and/or reimburse the City for additional police services including City Traffic Officer services if these services are required on a regular basis, as determined by the City's Chief of Police. 8.16 Licensee shall comply with all traffic regulations established for the operation of the Certified Farmers' Market by the City Traffic Engineer. 8.17 Licensee covenants and agrees that Licensee shall: (i) not use the License Area for any unlawful purpose; (ii) use the License Area in a careful and proper manner in accordance with this License; and (iii) not bring or use any Hazardous Materials, as defined by state or federal law, on the License Area. 8.18 Licensee shall operate the Certified Farmers' Market in accordance with all applicable provisions of the statutes, rules and regulations of the State of California, the ordinances, and regulations of the County of Orange, and the Charter and Ordinances of the City of Newport Beach. 8.19 City shall be entitled, with a Licensee representative, to inspect the License Area for compliance with the terms of this Agreement, and with all applicable Federal, State and local (including those of the City) government regulations. 9. TERMINATION OF LICENSE 9.1 Notwithstanding the term of this License, this License may be terminated during the term or any extended term in the following manner: By Licensee: At any time, without cause upon the giving of thirty (30) days written notice of termination to City; ii. By City: At any time, without cause upon the giving of thirty (30) days written notice of termination to Licensee; or iii. If, after written notice of default to Licensee of any of the terms or conditions of this License, Licensee fails to cure or correct the default within ten (10) business days of receipt of written notice, City may immediately terminate the License. Rick Heil Page 6 10. ADMINISTRATION This License shall be administered by the Community Development Department. The Community Development Director shall be the License Administrator and shall have the authority to act for City under this License. The License Administrator or their authorized representative shall represent City in all matters pertaining to this License. 11. INDEMNITY AND LIABILITY FOR DAMAGES 11.1 Licensee shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, and employees (collectively, the "Indemnified Parties") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this License, any work performed or services provided under this License including, without limitation, defects in workmanship or materials or Licensee's presence or activities conducted that relate in any way to this License (including the negligent and/or willful acts, errors and/or omissions of Licensee, employees, vendors, suppliers, and anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Licensee to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this License. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Licensee. 11.2 Licensee shall be liable and responsible for the security, repair and maintenance of the License Area to the extent necessitated by Licensee's use of the License Area under this License, for such time as this License is in effect. Licensee shall use care to protect the License Area and restore it to its original condition to the satisfaction of the City when the License Area is not in use by Licensee. 12. INSURANCE Without limiting Licensee's indemnification of City, and prior to commencement of work, Licensee shall obtain, provide and maintain at its own expense during the term of this Agreement or for other periods as specified in this Agreement, policies of insurance of the type, amounts, terms and conditions described in the Insurance Requirements attached hereto as Exhibit C, and incorporated herein by reference. Rick Heil Page 7 13. PROHIBITION AGAINST ASSIGNMENT AND TRANSFER This License shall not be assigned or transferred without the prior written approval of City which approval may be withheld in the City's sole discretion. 14. CONFLICT OF INTEREST The Licensee or its employees may be subject to the provisions of the California Political Reform Act of 1974 ("Act"), which (a) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this License, and (b) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Licensee shall conform to all requirements of the Act. Notwithstanding Section 9.1.3, failure to conform to the requirements of the Act constitutes a material breach and is grounds for immediate termination of this License by City. Licensee shall indemnify and hold harmless City for any and all claims for damages resulting from Licensee's violation of this Section. 15. NOTICE 15.1 All notices, demands, requests or approvals to be given under the terms of this License shall be given in writing, and conclusively shall be deemed 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: 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: Corona del Mar Certified Farmers' Market Attn: Rick Heil 2316 Calle Almirante San Clemente, Ca 92673 16. STANDARD PROVISIONS 16.1 Recitals. City and Licensee acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. Rick Heil Page 8 16.2 Compliance with all Laws. Licensee shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Licensee shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the License Administrator. 16.3 Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 16.4 Integrated Agreement. This License represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 16.5 Interpretation. The terms of this License shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the License or any other rule of construction which might otherwise apply. 16.6 Amendments. This License may be modified or amended only by a written document executed by both Licensee and City and approved as to form by the City Attorney. 16.7 Severability. If any term or portion of this License is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this License shall continue in full force and effect. 16.8 Controlling Law and Venue. The laws of the State of California shall govern this License and all matters relating to it and any action brought relating to this License shall be adjudicated in a court of competent jurisdiction in the County of Orange. 16.9 Taxes. Licensee acknowledges that the License granted herein may be subject to possessory interest taxes. Licensee shall have the sole obligation to pay any taxes, fees and assessments, plus applicable penalties and interest, which may be imposed by law and arise out of Licensee's License hereunder. Licensee shall indemnify, defend and hold harmless City against any and all such taxes, fees, penalties or interest assessed, or imposed against City hereunder. 16.10 No Third Party Rights. The Parties do not intend to create rights in or grant remedies to, any third party as a beneficiary of this License, or of any duty, covenant, obligation or undertaking established herein. Rick Heil Page 9 16.11 No Attorneys' Fees. In the event of any dispute under the terms of this License the prevailing party shall not be entitled to attorneys' fees. 16.12 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. [SIGNATURES ON NEXT PAGE] Rick Heil Page 10 IN WITNESS WHEREOF, the parties have caused this License to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: 4-Io-14 By: fittA,w Aaron C. Harp/ City Attorney tn.tL ,Inn ATTEST: r_ 1,1 Date: �l CITY OF NEWPORT BEACH, a California municipal corporation Date: Cp • 2 `{ . I r r By: w_c$ Rush N. Hill, II Mayor By: 4.44 si;mgm, Leilani I. Brown City Clerk Attachments: Exhibit A: Exhibit B: Exhibit C: LICENSEE: Rick Heil, an individual Date: CC - 1 e - lei By: /�;; j/ Rick Heil [END OF SIGNATURES] Depiction of Premises Vendor Liability Release Statement Insurance Requirements Rick Heil Page 11 EXHIBIT A DEPICTION OF LICENSE AREA Rick Heil Page A-1 EXHIBIT B LIABILITY RELEASE STATEMENT Rick Heil Page B-1 CITY OF NEWPORT BEACH — FARMERS' MARKET VENDOR LIABILITY RELEASE STATEMENT WHEREAS, the CITY OF NEWPORT BEACH, a California municipal corporation and charter City ("City"), has entered into a License Agreement with RICK HEIL, an individual, to allow Rick Heil to use the City owned public parking lot owned located at the corner of Marguerite Avenue and Bayside Drive, and the smaller municipal lot across and including a portion of Larkspur Street, in Corona del Mar, Newport Beach, California for a Certified Farmers' Market ("Farmers' Market"); WHEREAS, 1, 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. 1 recognize that participation in the Farmers' Market is dangerous and contains risk of personal injury, death, disfigurement, disability or property damage or loss ("damages"). 2. 1 have been fully informed of all aspects of the Farmers' Market and all aspects of the activities that I will be participating in at the Farmers' Market. Despite the potential risk of damages to me as a result of my participation in the Farmers' Market, I have decided to participate in the Farmers' Market. I understand and agree that my participation in the Farmers' Market is voluntary and that I may quit the Farmers' Market at any time. 3. 1 hereby agree to assume any and all risk and responsibility for all risks and damages associated with my participation in the Farmers' Market, whether identified by the City of Newport Beach, Corona del Mar Certified Farmers' Market, Rick Heil, the Market Managers, or the County of Orange including, but not limited to, strenuous physical activity or exertion, tripping or falling and being struck by objects or persons. Such risks may result in injuries that include, but are not limited to, sprains, strains or tear of muscles or ligaments; fracture or dislocation of joints or bones; head or facial injuries; spinal cord or internal injuries; or other damages related to pre-existing medical conditions I may have. 4. To the maximum extent permitted by law, 1 hereby, for myself, my heirs, executors, administrators, assigns or anyone who might claim on my behalf, agree not to bring any claim, and waive, release and discharge the City of Newport Beach, Corona del Mar Certified Farmers' Market, Rick Heil, the market managers or the County of Orange, its officials, officers, agents, volunteers, consultants, attorneys and employees ("Released Parties") from any and all duty to me; liability for any damages to me; and/or liability for any damages, losses, costs, and expenses arising out of or in the course of my participation in the Farmers' Market, including all liability for any active or passive negligence by the Released Parties. This release and waiver extends to all claims of every kind or nature whatsoever, foreseen or unforeseen, known or unknown. I expressly intend this waiver and release to be effective, regardless of whether the claim of liability is asserted in negligence, strict liability or other theory of recovery. 5. 1 hereby for myself, my heirs, executors, administrators, and assigns, agree to defend and indemnify the Released Parties against any and all manner of actions, causes of actions, suits, debts, claims, demands, or damages or liability or expense of every kind and nature incurred or arising by reason of any actual or claimed negligent or wrongful act or omission of mine while participating in the Farmers' Market. 1 HAVE READ, UNDERSTAND AND AGREE TO THE WAIVER AND RELEASE OF LIABILITY. I UNDERSTAND THAT BY MY SIGNATURE ON THIS DOCUMENT, I AM WAIVING MY RIGHTS, INCLUDING ANY RIGHTS I MAY HAVE AGAINST THE RELEASED PARTIES Dated: Witness Original: To Records Signature Printed Name EXHIBIT C INSURANCE REQUIREMENTS 1. Provision of Insurance. Without limiting Licensee's indemnification of City, and prior to commencement of work, Licensee shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. Licensee agrees to provide insurance in accordance with requirements set forth here. If Licensee uses existing coverage to comply and that coverage does not meet these requirements, Licensee agrees to amend, supplement or endorse the existing coverage. 2. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 3. Coverage Requirements. A. Workers' Compensation Insurance. Licensee shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. Licensee shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. C. General Liability Insurance. Licensee shall maintain commercial general liability insurance, and if necessary umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) general aggregate. The policy shall cover liability arising from premises, operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract) with no endorsement or modification limiting the scope of coverage for liability assumed under a contract. The commercial general liability insurance must include coverage for sexual abuse/molestation and corporal punishment. D. Automobile Liability Insurance. Licensee shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 Rick Heil Page C-1 covering bodily injury and property damage for all activities of Licensee arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit each accident. 4. Worker's Compensation Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Licensee or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Licensee hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subcontractors. B. Additional Insured Status. All liability policies including general liability, excess liability and automobile liability, if required, but not including professional liability, shall provide or be endorsed to provide that City and its officers, officials, employees, and agents shall be included as insureds under such policies. C. Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self- insurance maintained by City. D. Notice of Cancellation. All policies shall provide City with thirty (30) calendar days notice of cancellation (except for nonpayment for which ten (10) calendar days notice is required) or nonrenewal of coverage for each required coverage. 5. Additional Agreements Between the Parties. The parties hereby agree to the following: A. Evidence of Insurance. Licensee shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation and other endorsements as specified herein for each coverage. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. City reserves the right to require complete, certified copies of all required insurance policies, at 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 Rick Heil Page C-2 insurance required by giving Licensee sixty (60) calendar days advance written notice of such change. C. Enforcement of Agreement Provisions. Licensee acknowledges and agrees that any actual or alleged failure on the part of City to inform Licensee of non-compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. D. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. E. Self -insured Retentions. Any self -insured retentions must be declared to and approved by City. City reserves the right to require that self -insured retentions be eliminated, lowered, or replaced by a deductible. Self- insurance will not be considered to comply with these requirements unless approved by City. F. City Remedies for Non -Compliance. If Licensee or any subcontractor fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this Agreement, or to suspend Licensee's right to proceed until proper evidence of insurance is provided. G. Timely Notice of Claims. Contractor shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Contractor's performance under this Contract, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. H. Licensee's Insurance. Licensee shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. Rick Heil Page C-3 LICENSE TO USE PROPERTY (CERTIFIED FARMERS MARKET) THIS LICENSE TO USE PROPERTY FOR A FARMERS MARKET ("License") is made and entered into as of this 12th day of May, 2009, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ("City"), and Rick Heil, an individual, ("Licensee"), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of the City. B. Licensee has operated a Certified Farmers Market, in accordance with the Food and Agriculture Code Section 47000 et seq. implementing regulations, 3 California Code of Regulations Section 1392, et seq. (hereinafter "Certified Farmers Market") in Newport Beach pursuant to an Encroachment Agreement since 1996. C. Licensee has requested that he be allowed to continue to operate the Certified Farmers Market at the public parking lot owned by the City of Newport Beach located at the corner of Marguerite Avenue and Bayside Drive, and the smaller municipal lot across and including a portion of Larkspur Street, in Corona del Mar, Newport Beach, ("License Area"), as depicted on attached Exhibit A. D. Licensee represents that he has the requisite skills and experience to operate a Certified Farmers Market. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. Term. The term of this License shall commence on the above written date, and shall terminate on the 12th day of May, 2014, unless terminated earlier as set forth herein. 2. License Fee. Licensee shall pay the City $130.00 per month which amount shall be due and payable on the first of each month. Late payments will be assessed a penalty charge of thirty (30) percent. 3. The Purpose of this License. The purpose of this License is to permit the operation of a Certified Farmer's Market within the License Area as is shown on Exhibit A, attached to this License and incorporated into this License by reference. Use of area outside the License Area will not be allowed unless prior permission is given in writing 1 by the City. Licensee agrees to restrict the use of the License Area only for a Certified Farmers Market, and not to use or permit the use of the License Area for any other purpose without first obtaining the prior written consent of City, which consent may be withheld in City's sole discretion. 4. Conditions of License. Licensee shall comply with the following conditions prior to operation of the first Certified Farmer's Market pursuant to this License: A. Licensee shall procure and maintain any and all required certifications, permits, and licenses to operate the Certified Farmers Market. Licensee shall provide the City Planning Department with a copy of all required permits, including without limitation those permits as may be issued by the State of California, Department of Agriculture, the Orange County Agricultural Commissioner, the Orange County Health Department, and the City of Newport Beach. B. Licensee shall submit for review and obtain approval for all advertising and directional signage from the Public Works Department and the Planning Department. C. The Licensee shall work with adjacent commercial property owners to reach agreement over the use of parking facilities or develop a shared use parking plan, as determined and approved by the Planning Director. City Staff may assist in obtaining approval. D. Licensee shall submit a site plan and/or floor plan showing the layout of the Certified Farmer's market sales areas, for review and approval by the Planning Department and the Public Works Department. If the Planning Department and the Public Works Department determine that it is necessary, the Licensee shall obtain building permits and/or any other permits required for any proposed improvements. 5. Conditions of Operation. A. The Certified Farmers Market may operate each Saturday from 9:00 a.m. to 1:00 p.m., commencing on May 23, 2009. Licensee shall be present during each and every Certified Farmers Market from commencement of set up to the completion of clean up. Set up of the Certified Farmers Market shall not occur prior to 7:30 a.m. Licensee shall ensure that the License Area is returned, clean and free of debris, to its original condition by no later than 3:00 p.m. on the same day. City reserves the right to modify the hours of set up and operation, within the City's sole discretion. 2 B. On any occasion when Licensee cannot be present during the operation of a Certified Farmers Market, Licensee may provide a substitute qualified person to manage the operations, subject to prior written approval of the City. C. Licensee shall operate the Certified Farmers Market in accordance with all applicable provisions of the statutes, rules and regulations of the State of California, the ordinances, and regulations of the County of Orange, and the Charter and Ordinances of the City of Newport Beach. D. Licensee shall recruit and retain certified producers and producers for the Certified Farmers Market, verify that individual vendors are certified producers within the meaning of 3 California Code of Regulations 1392.2 (e), or producers selling non -certifiable agricultural products produced by themselves, and ensure that vendors adhere to all applicable rules and regulations concerning product quality and that the products offered for sale by vendors are pest and disease free. Licensee shall obtain a completed Liability Release Statement from each vendor, prior to participation in any Certified Farmers Market, in the form of Exhibit B attached to this License. Licensee shall not allow any person or organization to participate in the Certified Farmers Market until a completed application and Liability Release, is received by City. E. No more than 40 vendors shall display and/or sell products at the Certified Farmers Market. No additions, enlargements or modifications of uses or structures within the License Area shall be allowed without prior approval of the City. F. Licensee shall be responsible for setup, operation, maintenance, sanitation and clean up of the Certified Farmers Market as set forth below: (i) Set up shall include placement of vendors in accordance with the approved site plan; (ii) Operation shall be conducted in accordance with 3 California code of Regulations, Section 1392.1, et seq., and within the guidelines set forth in the State of California Department of Agricultural marketing plan; (iii) After the completion of each Certified Farmers Market, Licensee shall be responsible for properly disposing of all trash that has accumulated from the operations of the Certified Farmers Market. Maintenance, sanitation, and clean up shall be conducted within such rules and guidelines as may be promulgated by the Orange County Health Department and the City of Newport Beach. G. All loading and unloading of merchandise, vendor booths and other related improvements shall take place within the License Area. 3 H. The site plan shall be designed and operated so as to conform to access standards set forth by Title 24 of the Uniform Building Code (handicapped access requirements). Food items shall not be processed, cooked or packaged on site. Prepared food items shall not be sold for on -site consumption. J. Only a Certified Farmers Market may be operated in the License Area. Licensee may not operate or conduct any other event or enterprise unless Licensee receives required additional approvals from the City. K. Sale or consumption of alcoholic beverages is not permitted at the Certified Farmer's Market. L. The Certified Farmer's Market shall not create a significant impact to existing City police services, as determined by the City's Chief of Police. The Licensee may be required to secure a private security guard or guards and/or reimburse the City for additional police services including City Traffic Officer services if these services are required on a regular basis, as determined by the City's Chief of Police. M. Licensee shall comply with all traffic regulations established for the operation of the Certified Farmers Market by the City Traffic Engineer. N. Licensee covenants and agrees that Licensee shall: (i) not use the License Area for any unlawful purpose; (ii) use the License Area in a careful and proper manner in accordance with this License; and (iii) not bring or use any Hazardous Materials, as defined by state or federal law, on the License Area. 6. Termination of License. Notwithstanding the term of this License, this License may be terminated during the term or any extended term in the following manner: A. By Licensee: At any time, without cause upon the giving of thirty (30) days written notice of termination to City; or B. By City: At any time, without cause upon the giving of thirty (30) days written notice of termination to Licensee; or C. If, after written notice of default to Licensee of any of the terms or conditions of this License, Licensee fails to cure or correct the default within 10 days of receipt of written notice, City may immediately terminate the License. 7. Administration. This License will be administered by the Planning Department. Kathlyn Bowden shall be the Project Administrator and shall have the authority to act for City under this License. The Project Administrator or his/her authorized representative shall represent City in all matters pertaining to this License. 4 8. Indemnity & Liability for Damages. A. To the fullest extent permitted by law, Licensee shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, and employees (collectively, the "Indemnified Parties") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims"), which may arise from or in any mariner relate (directly or indirectly) to any breach of the terms and conditions of this License, any work performed or services provided under this License including, without limitation, defects in workmanship or materials or Licensee's presence or activities conducted that relate in any way to this License (including the negligent and/or willful acts, errors and/or omissions of Licensee, employees, vendors, suppliers, and anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Licensee to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this License. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Licensee. B. Licensee shall be liable and responsible for the security, repair and maintenance of the License Area to the extent necessitated by Licensee's use of the License Area under this License, for such time as this License is in effect. Licensee shall use care to protect the License Area and restore it to its original condition to the satisfaction of the City when the License Area is not in use by Licensee. 9. Insurance. Without limiting Licensee's indemnification of City, and prior to commencement of the Certified Farmers Market, Licensee shall obtain, provide and maintain at its own expense during the term of this License, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Licensee shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City at all times during the term of this License. 5 B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact the business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements. Workers' Compensation Coverage. Licensee shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Licensee shall require each contractor or subcontractor, as applicable, to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the contractor's and subcontractor's employees. Any notice of cancellation or non -renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non-payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Licensee for City. ii. General Liability Coverage. Licensee shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this License, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage. To the extent automobiles, trucks, or other motor vehicles are used in connection with the operation of the Certified Farmers Market, Licensee and each vendor shall certify and provide proof of automobile insurance covering activities related to the Certified Farmers Market in an amount satisfactory to the City's Risk Manager. E. Endorsements. Each general liability policy shall be endorsed with the following specific language: 6 The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Licensee. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Licensee's operations. Any insurance maintained by City, including any self -insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. v. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non-payment of premium) written notice has been received by City. F. Timely Notice of Claims. Licensee shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Licensee's performance under this License. G. Additional Insurance. Licensee shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 10. Independent Relationship. It is understood that Licensee is not an agent or employee of City. The manner and means of operating the Certified Farmers Market are under the control of Licensee, except to the extent they are limited by statute, rule or regulation and the expressed terms of this License. Nothing in this License shall be deemed to constitute approval for Licensee or any of Licensee's employees or agents, to be the agents or employees of City. Licensee shall have the responsibility for and control over the means of performing the work, provided that Licensee is in compliance with the terms of this License. Anything in this License that may appear to give City the 7 right to direct Licensee as to the details of the performance or to exercise a measure of control over Licensee shall mean only that Licensee shall follow the desires of City. 11. Cooperation. Licensee agrees to work closely and cooperate fully with City and any other agencies that may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Licensee in regards to this License. 12. City Policy. Licensee shall discuss and review all matters relating to this License with City representatives in advance of all critical decision points to ensure the Certified Farmers Market proceeds in a manner consistent with City goals and policies. 13. Prohibition against Assignment and Transfer. This License shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City which approval may be withheld in the City's sole discretion. 14. Conflict of Interest. The Licensee or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act), which (a) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this License, and (b) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Licensee shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this License by City. Licensee shall indemnify and hold harmless City for any and all claims for damages resulting from Licensee's violation of this Section. 15. Notice. All notices, demands, requests or approvals to be given under the terms of this License shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first-class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Licensee to City shall be addressed to City at: Attn: Kathlyn Bowden Planning Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92663 Phone: 949-644-3230 Fax: 949-644-3224 All notices, demands, requests or approvals from City to Licensee shall be addressed to Licensee at: 8 Attn: Rick Heil Corona del Mar Certified Farmers' Market P.O. Box 2781 Capistrano Beach, CA 92626 Phone: 949-361-0735 Fax: 949-361-8748 16. Compliance with all Laws. Licensee shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Licensee shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 17. Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 18. Integrated Agreement. This License represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 19. Interpretation. The terms of this License shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the License or any other rule of construction which might otherwise apply. 20. Amendments. This License may be modified or amended only by a written document executed by both Licensee and City and approved as to form by the City Attorney. 21. Severability. If any term or portion of this License is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this License shall continue in full force and effect. 22. Controlling Law and Venue. The laws of the State of California shall govern this License and all matters relating to it and any action brought relating to this License shall be adjudicated in a court of competent jurisdiction in the County of Orange. 23. Taxes. Licensee acknowledges that the License granted herein may be subject to possessory interest taxes. Licensee shall have the sole obligation to pay any taxes, fees and assessments, plus applicable penalties and interest, which may be imposed by law and arise out of Licensee's License hereunder. Licensee shall indemnify, defend and hold harmless City against any and all such taxes, fees, penalties or interest assessed, or imposed against City hereunder. 24. No Third Party Rights. The Parties intend not to create rights in or grant remedies to, any third party as a beneficiary of this License, or of any duty, covenant, obligation or undertaking established herein. IN WITNESS WHEREOF, the parties have caused this License to be executed on the day and year first written above. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY: By: By: Leilani Brown, City Clerk A pro•✓ c. .t.iP Assistant City Attorney CITY OF N,Ep11PORT BEACH, A Munic' a Corp,6ir tion By: Mayor LICENSEE: By: A-C'�i (Corpor r) Title: t41 /l- (27k rT 9 6!?�'#-cei"za� Print Name: 1 C l/ 1- r ate O ice By: (Financial Officer) Title: Print Name: 10 Flu/-1 Fmk Res curs \-• Fikv. Przt. PCH v 4 Exhibit A Ban EXHIBIT B Corona del Mar Certified Farmers Market P.O. Box 2781, Capistrano Beach, CA 92626 949-361-0735 Governing Rules and Regulations for the Corona del Mar Certified Farmers Market It is agreed that all vendors including any representatives or employee thereof shall be responsible for the care, maintenance, and upkeep of any and all space allocated by the Corona del Mar Certified Farmers Market. LIABILITY RELEASE STATEMENT I also understand that the market's insurance company and the City require me to sign a liability release statement, attached hereto as Attachment 1, which I agree to execute and have executed by my representatives and employees prior to taking part in the Farmers Market The vehicle or vehicles that I used at the market are currently insured with the following insurance company. AUTO INSURANCE COMPANY I hereby state that I have read, understand, and agree to follow all rules and procedures outlined in the Governing Rules and Regulations, a copy of which has been given to me. I also understand that failure to conform to said rules and guidelines may result in the privilege of my participation in the market being revoked. Grower's Signature Date Grower's Name (printed) RETURN WITH APPLICATION CONDITIONS OF PARTICIPATION: (DUPLICATE FOR YOUR RECORDS). 1. Vendor shall provide his own equipment, supplies, or other power that may be required. 2. Market will be held rain or shine. 3. Farmer shall maintain his assigned space in a neat and orderly manner, and shall minimize hazards to himself, to his products, and to the public. At the end of the day, farmer shall clean his area, leaving it as neat as when he arrived. 4. Farmer shall be responsible for his own sales, possess a resale number (i.e. nursery), make provision for accepting cash as is his usual practice. 5. DISCLAIMER: The above information is correct to the best of my knowledge. I have read the Application and if my application is accepted, I hereby give the City of Newport Beach & Corona del Mar, Corona del Mar Certified Farmers Market and the Market Managers the right to use photographs taken of me or my activity for reproduction in any medium for purposes of trade, advertising, display, exhibition, or editorial use. 6. I have inspected the event site and assured myself that the area is safe and further agree that I will not participate in the event unless 1 am satisfied that the area and conditions are safe. I voluntarily assume all risk arising from conditions related to the event site by myself or others. 7. I hereby acknowledge and accept the above conditions of participation and agree to assume all responsibility for the safety of myself, my equipment, and shall not permit potentially hazardous situations within or immediately adjacent to my assigned space I further agree to release the sponsor (The City of Newport Beach & Corona del Mar), Corona del Mar Certified Farmers Market, and tha Market Managers from any and all liability therefore. I also acknowledge receipt of a copy of this signed application. 8. I understand that I must obtain my own insurance if I desire insurance coverage for the event. NOTE: These conditions of participation are to be retained for your records. CONDITIONS OF PARTICIPATION: 1. Vendor shall provide his own equipment, supplies, or other power that may be required. 2. Market will be held rain or shine. 3. Farmer shall maintain his assigned space in a neat and orderly manner, and shall minimize hazards to himself, to his products, and to the public. At the end of the day, farrier shall clean his area, leaving it as neat as when he arrived. 4. Farmer shall be responsible for his own sales, possess a resale number (i.e. nursery), make provision for accepting cash as is his usual practice. 5. DISCLAIMER: The above information is correct to the best of my knowledge. 1 have read the Application and if my application is accepted, I hereby give the City of Newport Beach & Corona del Mar, Corona del Mar Certified Farmers Market and the Market Managers the right to use photographs taken of me or my activity for reproduction in any medium for purposes of trade, advertising, display, exhibition, or editorial use. 6. I have inspected the event site and assured myself that the area is safe and further agree that I will not participate in the event unless I am satisfied that the area and conditions are safe. I voluntarily assume all risk arising from conditions related to the event site by myself or others. INITIAL HERE 7. I hereby acknowledge and accept the above conditions of participation and agree to assume all responsibility for the safety of myself, my equipment, and shall not permit potentially hazardous situations within or immediately adjacent to my assigned space. I further agree to release the sponsor (The City of Newport Beach & Corona del Mar), Corona del Mar Certified Farmers Market, and tha Market Managers from any and all liability therefore. I also acknowledge receipt of a copy of this signed application. 8. I understand that I must obtain my own insurance if I desire insurance coverage for the event. INITIAL HERE Applicant Signature Address Telephone Date ATTACHMENT 1 TO EXHIBIT B CITY OF NEWPORT BEACH — FARMERS MARKET AGREEMENT ASSUMING RISK OF INJURY OR DAMAGE, WAIVER AND RELEASE OF CLAIMS AND INDEMNITY AGREEMENT WHEREAS, the City of Newport Beach ("City") has entered into a license agreement with Rick Heil to allow Rick Heil to use the property located at the public parking lot owned by the City of Newport Beach located at the corner of Marguerite Avenue and Bayside Drive, and the smaller municipal lot across and including a portion of Larkspur Street, in Corona del Mar, Newport Beach, California for a Certified Farmers Market ("Farmers Market"); WHEREAS I being over the age of eighteen (18) have made a voluntary request to participate in the Farmers Market; and WHEREAS, in consideration of acceptance of my entry in the Farmers Market, I agree on behalf of myself, my heirs, my executors, and administrators, to waive, release, and forever discharge any and all rights and claims for damages which may hereafter accrue to me against the below listed agencies, companies or entities, their officials, employees, as provided herein; and WHEREAS, the City of Newport Beach is willing to allow me to participate in the Farmers Market pursuant to the following conditions. NOW, THEREFORE, in consideration of the permission given to participate in the Farmers Market, I do hereby agree to the following: 1. I RECOGNIZE THAT PARTICIPATION IN THE FARMERS MARKET IS DANGEROUS AND CONTAINS RISK OF PERSONAL INJURY, DEATH, DISFIGUREMENT, DISABILITY, OR PROPERTY DAMAGE OR LOSS ("DAMAGES"). 2. I 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. I HEREBY AGREE TO ASSUME ANY AND ALL RISK AND RESPONSIBILITY FOR ALL RISKS AND DAMAGES associated with my participation in the Farmers Market, whether identified by the City of Newport Beach, Corona del Mar 1 Certified Farmers Market, Rick Heil, the Market Managers or the County of Orange including, but not limited to, strenuous physical activity or exertion, tripping or falling and being struck by objects or persons. Such risks may result in injuries that include, but are not limited to, sprains, strains or tear of muscles or ligaments; fracture or dislocation of joints or bones; head or facial injuries; spinal cord or internal injuries; or other DAMAGES related to pre-existing medical conditions I may have. 4. To the maximum extent permitted by law, I hereby, for myself, my heirs, executors, administrators, assigns or anyone who might claim on my behalf, agree not to bring any claim, and waive, release and discharge the City of Newport Beach, Corona del Mar Certified Farmers Market, Rick Heil, the Market Managers or the County of Orange, its officials, officers, agents, volunteers, consultants, attorneys and employees ("Released Parties") from any and all duty to me; liability for any DAMAGES to me; and/or liability for any damages, losses, costs, and expenses arising out of or in the course of my participation in the Farmers Market, including all liability for any active or passive negligence by the Released Parties. This release and waiver extends to all claims of every kind or nature whatsoever, foreseen or unforeseen, known or unknown. I expressly intend this waiver and release to be effective, regardless of whether the claim of liability is asserted in negligence, strict liability or other theory of recovery. 5. I hereby for myself, my heirs, executors, administrators, and assigns, agree to defend and indemnify the Released Parties against any and all manner of actions, causes of actions, suits, debts, claims, demands, or damages or liability or expense of every kind and nature incurred or arising by reason of any actual or claimed negligent or wrongful act or omission of mine while participating in the Farmers Market. I HAVE READ, UNDERSTAND AND AGREE TO THE WAIVER AND RELEASE OF LIABILITY. I UNDERSTAND THAT BY MY SIGNATURE ON THIS DOCUMENT, I AM WAIVING MY RIGHTS, INCLUDING ANY RIGHTS I MAY HAVE AGAINST THE RELEASED PARTIES Dated: Witness Original: To Records 2 Signature Printed Name