9.9.25 Council Packet as of 9.4.25 upload — Newport Beach City Council, September 9, 2025 (part 2 of 4)

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DISCUSSION:

The Newport Pier (Pier) is located on the Balboa Peninsula at 21st Street and West Ocean Front. The City-owned pier projects over 1,000 linear feet into the Pacific Ocean from the historic McFadden Square. The end of the Pier, which was previously developed with a restaurant, includes an under-pier deck that provided utility access to the restaurant and an emergency access ramp for Newport Beach Lifeguard operations. With the significant length of the Pier, which extends several hundred feet beyond the average break point for waves, the location is ideal for monitoring nearshore underwater ocean activity.

History
In 2005, the University of California San Diego, a consortium member of the Southern California Coast Ocean Observations Systems (SCCOOS), partnered with the City to obtain a ccess to install sensors underwater at the end of the Pier to collect data and measure ocean water temperature, salinity, pH, Oxygen, conductivity, chlorophyll, and water density and pressure. Three other ocean piers in Southern California gather the same information which is used to support ocean health and coastal-ocean water quality by coastal managers, agencies, researchers, and the general public. The data is available to the public via the SCCOOS website – https://sccoos.org/autoss/. The City Council approved a new license agreement with University of California San Diego in January 2025, to allow for its continued use of the Pier for its monitoring equipment.

In 2012, the City approved a separate agreement with USC (Attachment B) , also a member of SCCOOS, to allow installation of radio wave transmitters on the Pier, as part of a national network of high frequency radar sites. The radar data collected by USC is gathered together with 62 other sites in California and the western United States, as well as other parts of the country, and made available to the public by the National Oceanic and Atmospheric Administration (NOAA) on its website - https://hfradar.ioos.us/hfrnet/.

The Pier site allows USC to monitor a radar coverage area as far north as Long Beach, west to part of Catalina Island, and south to San Clemente.

The data from the Pier and larger radar network is used by : the United States Coast Guard for search and rescue modeling and operations ; by the California Office of Prevention and Response to determine how to deploy assets following an oil spill (e.g., the oil spill off Long Beach in 2021) or other hazardous materials r elease; by the NOAA for protection and restoration of coastal resources and to support ecosystem management of marine protected areas; by the Marine Exchange in San Pedro to assist with marina navigation ; and, for special projects like working with the Uni ted State s Olympic Sailing Team in advance of the 2028 Los Angeles Olympics.

USC requests to extend the term of its use of the Pier for 10 years and to modify its facility by installing a new coastal ocean dynamics applications radar (CODAR) antenna and equipment. The new antenna would serve to automatically calibrate the two older generation antennas existing at the Pier. City staff and USC have negotiated the terms of the License and submit it for the City Council’s consideration.

License Agreement with University of Southern California for Operation of a Coastal Observation System at the Newport Pier
September 9, 2025

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City Council Policy F-7, Income and Other Property
Pursuant to City Council Policy F-7 – Income and Other Property (Policy) (Attachment C), when less than fair market value rent is received and a waiver is requested for recreational, charitable or other nonprofit purpose , the City may approve such request when the non-financial benefits justify not maximizing revenue from such property. In this case, staff believes the following findings can be made:

1. USC provides an essential or unique service to the community that cannot otherwise be provided if full market rates were charged; and

2. With the proposed consideration for the License at less than fair market value, the use promotes the City’s goals to provide a public benefit to the community, is a marine-related service, and is of statewide benefit and may not otherwise be provided if full fair market value of the property was required.

License Agreement
Several key terms from the proposed License, for use of a portion of the under-Pier deck, are summarized below:

1. The term shall commence on September 9, 2025, and shall terminate the earlier of 10 years after completion of installation of the new equipment or June 30, 2035.

2. In lieu of payment of a license fee, U SC shall provide to the City all information gathered by the equipment.

3. USC shall not interfere with the City’s access to the under -pier deck and shall ensure it is maintained in a neat and clean manner. Additionally, USC shall ensure its equipment does not cause any direct or indirect interference with the C ity’s communications equipment.

4. The license area will be accepted as-is and USC shall be responsible for the cost of all utility services necessary for the operation of its observation system.

5. USC shall obtain any permits or approvals necessary for the ins tallation and operation of its equipment.

6. USC shall provide certificates of insurance to the satisfaction of the City’s risk manager, naming the City as additional insured.

The License has been reviewed by the City Attorney’s Office and has been approved as to form. USC has reviewed and approved the terms of the License.

FISCAL IMPACT:

There is no fiscal impact related to this item. Any utility reimbursements will be a pass - through of costs and will not result in a net revenue or expenditure to the City.

License Agreement with University of Southern California for Operation of a Coastal Observation System at the Newport Pier
September 9, 2025

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ENVIRONMENTAL REVIEW:

Staff recommends the City Council find this project is exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15301 (Existing facilities) and Section 15302 (Replacement or Reconstruction) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because this project has no potential to have a significant effect on the environment.

NOTICING:

The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item).

ATTACHMENTS:

Attachment A – License Agreement
Attachment B – Previous License Agreement
Attachment C – City Council Policy F-7

Attachment A
License Agreement
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LICENSE AGREEMENT

COASTAL OBSERVATION SYSTEM

AT THE NEWPORT PIER
This LICENSE AGREEMENT ("Agreement") is entered into between UNIVERSITY OF SOUTHERN CALIFORNIA, a California nonprofit public benefit corporation on behalf of its Department of Biological Sciences ("USC") and the CITY OF NEWPORT BEACH a California municipal corporation and charter city ("City") on this the 9th day of September, 2025 ("Effective Date"). USC and City are each a "Party" and together the "Parties" to this Agreement.

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. City is the owner of the Newport Pier, which extends into and over the water of the Pacific Ocean, at 1 Newport Pier Newport Beach, California 92661 ("Newport Pier''), as further depicted on Exhibit "A," which is attached hereto and incorporated herein by this reference.

C. USC is a consortium member of the Southern California Coast Ocean Observations Systems ("SCCOOS"). SCCOOS collects and analyzes ocean current data by transmitting radio waves and reflecting them from the ocean's surface. USC desires to maintain such a radio wave transmitter on the Newport Pier.

D. On August 1, 2012, City and USC entered into a License Agreement to use that certain portion of the Newport Pier, as further depicted in Exhibit "B" attached hereto and incorporated herein by this reference ("License Area") to allow USC to install a coastal ocean dynamics applications radar ("GODAR") radio wave transmitter and its related equipment, which have been operating since.

E. On July 31, 2013, City and USC entered into an Amendment No. One to License Agreement ("Amendment No. 1 ") to reflect the City's agreement to provide electrical utility services to power to its facilities.

F. USC desires to expand its facilities by installing a new GODAR antenna and related equipment that will serve to automatically calibrate the other two existing, older generation antenna as described and depicted in Exhibit C (collectively, the "Facilities"), attached hereto and incorporated herein by this reference in the License Area.
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G. The installation of the Facilities by USC is to facilitate research efforts for SCCOOS's ongoing ocean observing effort and is indefinite with reference to time.

USC intends to operate the Facilities as long as there is adequate funding to support the infrastructure and personnel required to maintain the Facilities.

H. City and USC desire to enter into this Agreement to memorialize USC's existing use of the License Area and to include in USC's use of the License Area the installation and operation of the Facilities, subject to the covenants and conditions set forth in this Agreement, on a non-exclusive basis, to facilitate additional and ongoing research efforts for SCCOOS.

NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS:

1. LICENSE

1.1 City grants a non-exclusive license ("License") to USC for the Term of this Agreement, to use the License Area for the purpose specified in this Agreement in compliance with the terms of all governmental licenses, permits and approvals required by Federal, State or local governmental agencies.

1.2 All installation, operation, maintenance, and removal activities shall be at USC's sole cost and expense, including but not limited to the fees and costs associated with the permits and government approvals described in Section 3, pursuant to plans approved in advance in writing by the City, such approval not being unreasonably withheld, conditioned, or delayed.

1.3 USC shall at its sole cost and expense, comply with all applicable federal, state and/or local laws and regulations. The License granted herein is subject to the terms, covenants and conditions hereinafter set forth, and USC 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.

1.4 Notwithstanding USC's construction and installation of the Facilities, it is the Parties' intention that USC's interest in the License Area and Newport Pier is restricted to this Agreement, and the City retains all rights, title and interest in the License Area and Newport Pier.

2. PURPOSE OF LICENSE

2.1 USC shall use the License Area for the sole purpose of constructing, installing, maintaining, securing and operating the Facilities, as further described in Exhibit C.

2.2 Construction, installation, operation, including maintenance and repair, and removal of the Facilities shall be at USC's sole expense. USC shall keep the Facilities free from hazards or risk to the public health, safety or welfare. USC shall provide twenty four (24) hour telephone notice to the Public Works Department at (949) 270-8159 prior License Agreement USC Newport Pier Page 2
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to performing any maintenance or repair.

2.3 USC shall not make or permit to be made any alterations, additions or improvements to the License Area or Newport Pier, including but not limited to, painting, installation of lighting or decorations, or posting of any signs, lettering or advertising media of any type or any other visual displays, without the prior written consent of City, such consent not to be unreasonably withheld, conditioned, or delayed. Notwithstanding the foregoing, USC shall place warning signs on or about the Facilities in the manner required by federal, state or local law.

2.4 Use in Film, Television, and/or Advertising. USC may use portions of the License Area, Newport Pier, and surrounding areas for film, television production, advertising production, or other media vehicle only upon written approval from the City and in compliance with the Newport Beach Municipal Code.

3. TERM
The term of this Agreement shall commence upon the Effective Date and terminate ten (10) years after the Facilities first begin operation or on June 30, 2035, whichever occurs first ("Term"). Notwithstanding anything to the contrary in this Agreement, the License is for a temporary period of time and does not, and shall not, result in the permanent location of the Facilities on, in or about the License Area.

4. LICENSE FEE
The License is provided at no charge to USC. City is not charging a License Fee comparable to the open market or appraised value of the License Area because City finds that USC's use of the License Area provides an essential or unique service to the public.

In lieu of a License Fee, USC shall provide to City as consideration for the License all information gathered from the Facilities, via a web link to a Newport Beach site specifically designated to the operation of the Facilities.

5. USE OF THE LICENSE AREA

5.1. USC shall not do, nor shall it permit anything to be done that may interfere with the accessibility of the License Area.

5.2. USC shall take all prudent action to protect the License Area, Newport Pier, and City equipment and facilities from any damage or injury caused by any activities by or on behalf of USC under this License or by the failure, deterioration, or collapse of the Facilities.

5.3. USC shall, at its sole cost and expense, continually maintain the Facilities in a first-class manner and keep the License Area neat, clean and free from graffiti, dirt and rubbish at all times. USC shall use an anti-graffiti coating on the Interpretive Signs, if any. Graffiti shall immediately be called in to the City's Graffiti Hotline at (949) 644-3333 for removal.

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5.4. USC shall repair any damage to the License Area, to the extent such damage is caused by USC or USC Permittees. USC shall immediately notify City and the appropriate public safety agency (e.g., police and fire department) of any damage or injury caused by work under this License.

5.5. If USC fails to commence required maintenance or repairs of the License Area within three (3) business days after receipt of notice to do so, City may perform such work or have such work performed by others and USC shall reimburse City for all costs and expenses associated with such work within thirty (30) calendar days of receipt of invoice from City. With respect to the Interpretive Signs, if USC does not adequately maintain the Interpretive Sign(s) to City's satisfaction, USC shall remove the Interpretive Sign(s) upon written notice by City.

6. UTILITIES

6.1 If required by City, USC shall be responsible for the cost of all utility services necessary for the operation of the Facilities, and shall have such utilities installed and/or connected if already installed, and maintained at USC's sole cost and expense (along with all ongoing use charges). If required, USC shall obtain an encroachment permit from City's Public Works Department and submit plans for underground construction of any required utility lines to City for its review and approval prior to commencement of construction.

6.2 USC shall obtain electricity for the Facilities through a separate electrical meter with Southern California Edison, or USC may obtain electricity by tapping into City's power source at the Newport Pier at the License Area.

6.3 If required by City and USC uses City's power, USC shall pay to City a monthly fixed fee ("Utility Use Fee"), which shall initially be One Hundred Dollars ($100.00). City, upon not less than thirty (30) days' notice to USC, may increase or decrease the Utility Use Fee commensurate with costs incurred by City for USC's use of City provided utilities, which shall be determined in City's sole and absolute discretion.

Licensee agrees not to dispute the Utility Use Fee, either during the Term of the Agreement or at any time thereafter, however the increase or decrease in the Utility Use Fee shall not exceed the cost(s) actually incurred by City for Licensee's use of City provided power.

6.4 In the event that City redevelops the Newport Pier pursuant to Section 11, USC is aware that such redevelopment may interfere with the service of utilities to the License Area, and City shall not be responsible or liable for any lack of functionality or damages caused to the Facilities or their inability to collect data.

7. INTERFERENCE WITH CITY TELECOMMUNICATIONS

7.1 Operation of the Facilities shall at all times comply with all Federal Communications Commission ("FCC") requirements and shall not cause any direct or indirect interference with (a) the operation of City's own wireless communications facilities, including but not limited to public safety transmissions, police and fire License Agreement USC Newport Pier Page 4
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communications, water or sewer internal or external radio signals and communications, as they now exist or may from time-to-time hereafter exist ("City Equipment") or (b) public telecommunications such as cell phone or wireless internet use.

7.2 In the event of any interference with City's police and fire communications, USC shall work with the affected City Department to correct the interference within two (2) hours of City's written or telephone notice to USC. In the event of any interference with City Equipment other than police or fire communications, USC shall work with City to correct the interference within twenty-four (24) hours of City's written or telephone notice. If it is determined the interference is caused by the Facilities and if USC is unable to correct the interference to City's satisfaction, USC shall immediately cease operation of the Facilities until the cause of the interference is corrected to City's satisfaction.

7.3 Prior to making any changes to the frequency or operating conditions, USC shall submit plans for the proposed changes to City for its review and written approval.

USC agrees to fund any studies either of the Parties deem necessary to ensure that any contemplated changes will be compatible with City Equipment. No frequency or operating condition changes shall occur prior to the City's written approval.

8. EMERGENCY SHUT OFF OF POWER

8.1 Emergency situations may require power to the Facilities to be immediately shut off, which may interfere with or temporarily terminate USC's use of the Facilities ("Emergency Situation"). City shall have the sole right to determine what constitutes an Emergency Situation. In case of an Emergency Situation and/or a case of frequency interference of any nature between City Equipment and the Facilities in a manner that threatens public health or safety, City shall have the right, without notice, to immediately shut off power to the Facilities and any other USC equipment located at the License Area for the duration of the Emergency Situation or frequency interference that threatens public health or safety. City shall not be responsible or liable for any damage, loss, claim or liability of any nature suffered as a result of any loss in use of the Facilities because of the power shut off due to an Emergency Situation and USC shall protect, defend, indemnify and hold City harmless for any such resulting damage, loss, claim or liability.

8.2 USC shall install a clearly marked and accessible master power "cut-off' switch on the Facilities.

8.3 Any power shut off by City pursuant to this Section is not intended to and shall not constitute a termination of this Agreement by either party, unless otherwise specifically stated in a notice of termination and USC accepts the risk of such power shut off. USC and City shall meet after the City determines that an emergency situation has ended to establish the time and manner in which power shall be restored.

9. ACCEPTANCE OF CONDITION OF LICENSE AREA
USC has conducted its own appropriate due diligence investigation of the License Area prior to its execution of this Agreement and accepts use of the License Area in an "AS IS" condition, with no warranty or representation, express or implied from the City as License Agreement USC Newport Pier Page 5
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to the physical condition of the License Area and/or any latent, patent, foreseeable and unforeseeable condition of the License Area, including its suitability for the use intended by USC. All persons entering the License Area under this Agreement do so at their own risk. USC expressly assumes all responsibility for the protection and security of the License Area, USC, USC's employees, volunteers, contractors, subcontractors, invitees, agents, or representatives (collectively, "USC Permittees"), and USC's property and equipment from any and all acts of any third party. To the best of City's knowledge, the License Area has not been used for generation, storage, treatment or disposal of "Hazardous Substances", as defined in this Agreement.

10. GOVERNMENT APPROVALS

10.1 USC shall, at its sole cost and expense, obtain a Building Permit from the City's Community Development Department, Building Division, and an Encroachment Permit from the City's Public Works Department.

10.2 USC shall obtain all other licenses, permits and approvals required by federal, state or local governmental agencies necessary for USC to construct, operate, repair and remove the Facilities in the License Area, including but not limited to California Coastal Commission approval, at USC's sole cost and expense. Prior to installation of the Facilities, if required by federal, state or local government agencies, USC must obtain a valid Coastal Development Permit or De Minimis Waiver. USC may not install the Facilities until a valid coastal development permit or other authorization has been issued by the California Coastal Commission, if required by such agency.

11. REDEVELOPMENT OF PROPERTY
If City's redevelopment of the Newport Pier or the License Area during the Term will materially interfere with USC's use of the License Area, then the Parties agree to terminate this Agreement. City shall provide USC with written notice of termination of this Agreement at least ninety (90) calendar days prior to the start of construction activity. City will make all best efforts to include space for Licensee to continue to operate the Facilities at the Newport Pier but cannot guarantee that space will be available.

12. RELOCATION
When requested by City, USC shall relocate the Facilities at its expense and shall have no right or claim for reimbursement or ·damages. Except in the event of an emergency or other situation requiring immediate relocation of the Facilities, City shall provide USC with not less than ninety (90) calendar days written notice of relocation specifying a date by which the relocation is to take place.

13. INSPECTION
City shall have the right to inspect the Facilities for compliance with the terms of this Agreement and with all applicable federal, state, City and local government regulations, at any time and without prior notice.
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14. NO INTEREST IN PROPERTY
Nothing herein shall be deemed to create or to grant any lease, easement, or any possessory or other interest in the License Area, or any public right-of-way, other than a real property license to use and access the License Area, revocable and for the Term.

15. CITY RETENTION RIGHTS; RESERVATION OF RIGHTS

15.1 USC's right to use the License Area during the Term shall be subordinate and junior to the rights of City to use and occupy the License Area for any purpose that does not interfere with USC's use of the License Area as provided herein.

15.2 USC understands, acknowledges and agrees that any and all authorizations granted to USC under this Agreement are non-exclusive and shall remain subject to all prior and continuing regulatory and propriety rights and powers of City to regulate, govern and use City property, as well as any existing encumbrances, deeds, covenants, restrictions, easements, dedications and other claims of title that may affect the License Area and City property.

16. USC'S RETENTION OF TITLE
Title to the Facilities placed at the License Area by USC shall be held by USC or its equipment lessors, successors, or assigns. The Facilities shall not constitute or be considered fixtures. USC has the right to remove any or all of the Facilities at its sole expense at any time.

17. DEFAULT; REMEDIES
USC's failure to observe or perform any of the covenants, conditions, or terms of this Agreement, where such failure continues for a period of thirty (30) calendar days after City has provided written notice to USC, shall constitute a default and material breach of this Agreement. If more than thirty (30) days are required to perform any of the covenants, conditions, or terms of this Agreement, then USC shall not be in default or material breach of this Agreement if USC has commenced to cure such prospective default within the thirty (30) day period and diligently proceeds to completion. City may terminate this Agreement and USC's use of the License Area upon USC's failure to cure the default or breach. Such termination shall be effective upon City's providing written notice to USC.

18. ASSIGNMENT
I
All of the terms and provisions of this Agreement shall inure to the benefit of and shall be binding upon the Parties and their respective successors and assigns. This Agreement and the rights and obligations of USC is personal to USC and shall not be assigned, transferred, or hypothecated (collectively referred to as "transferred"), in whole or in part, without the prior written consent of the City, which consent may be withheld in City's sole and absolute discretion for any reason or no reason at all. Any transfer of this Agreement or the License granted hereunder, voluntarily or by operation of law, shall License Agreement USC Newport Pier Page 7
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automatically terminate this Agreement, unless USC has obtained the prior written consent of City.

19. TAXES
USC shall pay any and all personal interest property taxes, real property taxes, possessory interest taxes, fees and assessments, or similar charges which may at any time be imposed or levied by any public entity and attributable to the License authorized herein. City hereby gives notice to USC, pursuant to Section 107.6 of the California Revenue and Taxation Code that this Agreement may create a possessory interest in and to the property of City, a tax-exempt public entity, the payment of which taxes shall be the sole obligation of USC.

20. SURRENDER
Upon expiration or termination of this Agreement, USC at its sole cost and expense shall within thirty (30) calendar days of written notice from City remove the Facilities, restore the License Area to the condition it was received in, less regular wear and tear, or to a condition satisfactory to and approved by City, and vacate the License Area. USC shall also leave the License Area free of Hazardous Substances, as required by Section

24. Should USC fail to restore the License Area to a condition described above, City may perform such work or have such work performed by others and USC shall reimburse City for all direct costs associated with such work upon receipt of an invoice for such costs.

Any property USC fails to remove or abandons shall, at City's election, become City's property at expiration or termination. City shall owe no compensation to USC for any property it abandons, leaves behind, or fails to remove.

21. TERMINATION
This Agreement may be terminated by either Party, at any time, for any reason, with or without cause, by giving thirty (30) calendar days written notice to the other Party.

Upon termination, USC shall comply with the surrender obligations of Section 20 above.

22. INDEMNIFICATION

22.1 Irrespective of any insurance carried by USC for the benefit of City, and to the fullest extent permitted by law, USC shall indemnify, defend, and hold harmless City, its elected or appointed officers, agents, officials, employees, and volunteers ( 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, California Coastal Commission enforcement 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" and, collectively, "Claims"), but only in proportion to and to the extent such Claims are caused by or arises from USC's operations conducted under this Agreement or the implementation hereof and for any damages to property or injuries to persons, including accidental death, which may be License Agreement USC Newport Pier Page 8
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caused by any of USC's activities under this Agreement, whether such activities or performance thereof be (i) by USC, or (ii) USC's Permittees or agents and whether such damage shall accrue or be discovered before or after termination of this Agreement. This indemnification obligation exists on in proportion and to the extent that the Claims result from the negligent or intentional acts or omissions of USC and USC's officers, employees, invitees, guests, and/or agents.

22.2 Notwithstanding the foregoing, nothing herein shall be construed to require USC to indemnify the Indemnified Parties from any Claim arising from the negligence or willful misconduct of the Indemnified Parties or by City's failure to comply with the terms and conditions of this Agreement. 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 USC. This indemnity Section shall survive the termination or expiration of this Agreement.

23. INSURANCE
Without limiting USC's indemnification of City, and prior to undertaking any activity pursuant to the License, USC shall obtain, provide and maintain at its own expense during the Term 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.

24. HAZARDOUS SUBSTANCES

24.1 From the date of execution of this Agreement throughout the Term, USC shall not use, store, manufacture or maintain in, on, under, about or within the License Area or anywhere on the Newport Pier any Hazardous Substances except (i) in such quantities and types found customary in construction, repair, maintenance and operations of the Facilities, and (ii) petroleum and petroleum products contained within regularly operated motor vehicles. USC shall handle, store and dispose of all Hazardous Substances it brings onto the License Area or Newport Pier in accordance with applicable laws.

24.2 For purposes of this Agreement, the term "Hazardous Substance" means:
(i) any substance, product, waste or other material of any nature whatsoever which is or becomes listed, regulated, or addressed pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq. ("CERLCA"); the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq.; the Resource Conversation and Recovery Act, 42 U.S.C. Section 6901 et seq. ("RCRA"); the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.; the Clean Water Act, 33 U.S.C. Section 1251 et seq.; the California Hazardous Waste Control Act, Health and Safety Code Section 25100 et seq.; the California Hazardous Substance Account Act, Health and Safety Code Sections 25330 et seq.; the California Safe Drinking Water and Toxic Enforcement Act, Health and Safety Code Sections 25249.5 et seq.; California License Agreement USC Newport Pier Page 9
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Health and Safety Code Sections 25280 et seq. (Underground Storage of Hazardous Substances); the California Hazardous Waste Management Act, Health and Safety Code Sections 25170.1 et seq.; California Health and Safety Code Sections 25501 et seq. (Hazardous Materials Response Plans and Inventory); or the Porter-Cologne Water Quality Control Act, Water Code Sections 13000 et seq., all as they, from time-to-time may be amended, (the above-cited statutes are here collectively referred to as "the Hazardous Substances Laws") or any other Federal, State or local statute, law, ordinance, resolution, code, rule, regulation, order or decree regulating, relating to, or imposing liability or standards of conduct concerning, any hazardous, toxic or dangerous waste, substance or material, as now or at any time hereafter in effect; (ii) any substance, product, waste or other material of any nature whatsoever which may give rise to liability under any of the above statutes or under any statutory or common law theory, including but not limited to negligence, trespass, intentional tort, nuisance, waste or strict liability or under any reported decisions of a state or federal court; (iii) petroleum or crude oil; and (iv) asbestos.

24.3 Notwithstanding any contrary provision of this Agreement, and in addition to the indemnification duties of USC set forth in this Agreement, USC agrees to indemnify, defend with counsel reasonably acceptable to City, protect, and hold harmless the City, its elected or appointed officers, agents, officials, employees, volunteers and assigns from and against any and all losses, fines, penalties, claims, damages, judgments, or liabilities, including, but not limited to, any repair, cleanup, detoxification, or preparation and implementation of any remedial, response, closure or other plan of any kind or nature which the City, its elected or appointed officers, agents, officials, employees, volunteers, or assigns may sustain or incur or which may be imposed upon them in connection with the use of the License Area provided under this Agreement by USC, caused by or arising from the storage or deposit of Hazardous Substances on or under the License Area by USC. This Section is intended to operate as an agreement pursuant to Section 107(e) of CERCLA, 42 USC Section 9607(e), and California Health and Safety Code Section 25364, to insure, protect, hold harmless, and indemnify City for any claim pursuant to the Hazardous Substance Laws or the common law.

24.4 City agrees that City will not, and will not authorize any third party to use, generate, store, or dispose of any Hazardous Substances on, under, about or within the License Area in violation of any law or regulation. City and USC each agree to defend, indemnify and hold harmless the other and the other's partners, affiliates, agents and employees against any and all losses, liabilities, claims and/or costs arising from any breach of any representation, warranty or agreement contained in this Section. This Section shall survive the termination of this Agreement. Upon expiration or earlier termination of this Agreement, USC shall surrender and vacate the License Area and deliver possession thereof to City on or before the termination date free of any Hazardous Substances released into the environment at, on or under the License Area that are directly attributable to USC.

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25. COMPLIANCE WITH LAWS
USC, at its sole cost and expense, shall observe, perform, and comply with all laws, statutes, ordinances, rules, and regulations promulgated by any governmental agency and applicable to the Facilities and the License Area, or the use thereof, including all Americans with Disability Act requirements, applicable zoning ordinances, building codes and environmental laws. USC shall not occupy or use the Facilities and License Area or permit any portion of the Facilities and License Area to be occupied or used for any use or purpose that is unlawful in part or in whole, or deemed by City to be disreputable in any manner or extra hazardous on account of fire.

26. NOT AGENT OF CITY
Neither anything in this Agreement nor any acts of USC shall authorize USC or any of its employees, agents or contractors to act as agent, contractor, joint venture or employee of City for any purpose.

27. NO THIRD PARTY BENEFICIARIES
City and USC do not intend, by a provision of this Agreement, to create in any third party, any benefit or right owed by one Party, under the terms and conditions of this Agreement, to the other Party.

28. NOTICES
All notices and other communications required or permitted to be given under this Agreement, including any notice of change of address, shall be in writing and given by personal delivery, or deposited with the United States Postal Service, postage prepaid, addressed to the parties intended to be notified. Notice shall be deemed given as of the date of personal delivery, or if mailed, upon the date of deposit with the United States Postal Service. Notice shall be given as follows:
(a) To City:

City of Newport Beach
Attn: Real Property Administrator
100 Civic Center Drive
P.O. Box: 1768
Newport Beach, CA 92660
(b) To USC:

Attn: Matthew Ragan
University of Southern California
3616 Trousdale Pkwy
AHF 107
Los Angeles, CA 90089-0371
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Phone: (213) 7 40-5153
(c) USC's emergency contacts:

Name:

Title:
24 hour phone number:

Email:

29. CITY BUSINESS LICENSE
Matthew Ragan
Project Manager
(949) 232-7202
[email protected]
USC shall obtain and maintain during the duration of this Agreement, a City business license as required by the Newport Beach Municipal Code.

30. NO DAMAGES
USC acknowledges that City would not enter into this Agreement if it were to be liable for damages (including, but not limited to, actual damages, economic damages, consequential damages, lost profits, loss of rents or other revenues, loss of business opportunity, loss of goodwill or loss of use) under, or relating to, this Agreement or any of the matters referred to in this Agreement, including, without limitation, any and all plans, permits, licenses or regulatory approvals, and CEQA documents. Accordingly, USC covenants and agrees on behalf of itself and its successors and assigns, not to sue City (either in its capacity as licensor in this Agreement or in its capacity as the City of Newport Beach) for damages (including, but not limited to, actual damages, economic damages, consequential damages, lost profits, loss of rents or other revenues, loss of business opportunity, loss of goodwill or loss of use) or monetary relief for any breach of this Agreement by City or for any dispute, controversy, or issue between City and USC arising out of or connected with this Agreement or any of the matters referred to in this Agreement, including, without limitation, any and all plans, permits, licenses or regulatory approvals, CEQA documents, or any future amendments or enactments thereto, the Parties agreeing that declaratory relief, injunctive relief, mandate and specific performance shall be USC's sole and exclusive judicial remedies.

31. STANDARD PROVISIONS

31.1 Waiver. The waiver by either Party of any breach or violation of any term, covenant or condition of this Agreement, or of any ordinance, law or regulation, shall not be deemed to be a waiver of any other term, covenant, condition, ordinance, law or regulation, or of any subsequent breach or violation of the same or other term, covenant, condition, ordinance, law or regulation. The subsequent acceptance by either Party of any fee, performance, or other consideration which may become due or owing under this Agreement, shall not be deemed to be a waiver of any preceding breach or violation by the other Party of any term, condition, covenant of this Agreement or any applicable law, ordinance or regulation.

License Agreement USC Newport Pier Page 12
15-18

31.2 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 oral agreement or implied covenant shall be held to vary the provisions herein.

31.3 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement or any other attachments attached hereto, the terms of this Agreement shall govern.

31.4 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.

31.5 Amendments. This Agreement may be modified or amended only by a written document executed by both USC and City and approved as to form by the City Attorney.

31.6 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.

31.7 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.

31.8 Equal Opportunity Employment. USC represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age.

31.9 No Attorney's Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing Party shall not be entitled to attorney's fees.

31.10 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.

31.11 Time is of the essence for this Agreement.
[SIGNATURES ON NEXT PAGE]
License Agreement USC Newport Pier Page 13
15-19
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in duplicate on the dates indicated below.

APPROVED AS TO FORM:

CITY ATTORNEY'S OFFICE
Date: B°//5 / 7=5
By: ~- W{mtija, .fo r
Aaro C.Harp
City Attorney
ATTEST:

Date: -------
By: _________ ___ _
Molly Perry
Interim City Clerk

CITY OF NEWPORT BEACH,
A California municipal corporation
Date: ------- - -
By: ____________ _
Grace K. Leung
City Manager
USC: UNIVERSITY OF SOUTHERN
CALIFORNIA, a California nonprofit
public benefit corporation
Date: ---------
By: ____________ _
Dr. Mark K. Todd
Vice Provost for Academic Operations
Attachments :
[END OF SIGNATURES]
Exhibit A - N ewport Pier Depiction
Exhibit B - License Area and Facilities Description and Depiction Exhibit C - New Facilities Description and Depiction
Exhibit D - Insurance Requirements
15-20
0 EXHIBIT A

NEWPORT PIER DEPICTION
0 200
Feet
400
Disclaimer.

Every reasonable E'fort has been made 10 assure the
accuracy of the dab provided, however. The Crty a'
Newpott Beach and ltS employees and agents
disd.un any and al rHpons,l>ilily from or ~,ng to
any results obtained in l1S use
License Agreement USC Newport Pier Page A-1
15-21

EXHIBIT B

LICENSE AREA AND FACILITIES DESCRIPTION AND DEPICTION
LICENSE AREA:

Drawing depicting the License Area from above the Newport Pier, showing the location of the antennae and conduit that run from the antennae to the enclosure under the pier:
~
'
,.
f\J !OFFSHORE (WEST)
!\ANTENNA SYSTEM MOUNTED TO LIGHT POLE
SEE DWG.NO. "Antenna Mount"
a)

RESTAURANT
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ki 32 .,._ (EXISTING)
ELECTRONICS ENCLOSURESi /
SEE DWG.NO. "Enclosures"
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License Agreement USC Newport Pier Page B-1
15-22
Drawing depicting the License Area from below the Newport Pier:

EXISTING MAINS CONDUIT
'
ENCLOSURE: MCMASTER P/N 69l8K55
SWITCH: MCMASTER P/N 69l8K65 n r SEE "SWITCH DETAILS"

DISCONNECT SCRIPPS CABINET

SWITCH --
7 - J
11 USC CODAR CABINET
-
• NEYiPORT PIER CABlflETS
License Agreement USC Newport Pier Page B-2
15-23
FACILITIES:

The following drawings and photographs depict USC's current Facilities at the License Area:

1. Drawing detailing the Facilities under the Newport Pier. (Please note that the item labeled "Previously Existing Shore Station" is not a part of USC's Facilities, but belong to University of California, San Diego/Scripps under a similar license agreement for a coastal observation system):

ENCLOSURE:
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, ....... ,.:•_tlj\

PREVIOUSLY EXISTING SHORE STATION,

ENTIRELY STAINLESS STEEL CONSTRUCTION

ALL MOUNTING WILL BE DONE WITH STAINLESS STEEL

STRUT CHANNEL AND HARDWARE (BOTH VERTICALLY
AND HORIZON TALL YJ. FOR REFERENCE SEE ATTACHED
MCMASTER-CARR PART NO. 33085126
p~~=t'"i:,.v~~=" ''--!----,!-----lrnLf:
""""~" NEWPORT PIER use

CODAR MOUNT
5CAU: WC:GHT: SHEEl J Of 9
Page B-3
15-24

2. Drawing detailing the location of the electrical panel and conduit which runs under the Newport Pier (above the boat ramp) to the License Area:

ELECTRICAL CONDUIT DETAIL
, EXISTING PVC ELECTRICAL CONDUIT
WIRE CONDUCTOR SIZE# 12
SYSTEM TOTAL DRAW 16A
BREAKER POSITION 7. LABEL ·uc1 T
PANEL ID IS A/C 2. SEE "PANEL DETAIL"
"'
28'

DETAIL E
SCALE 1 : 100
Conduit runs from the corner of the Newport Pier where the antennae are located to the stainless-steel enclosure which contain the cables to the antennae.

Conduit runs from the utility closet to the stainless-steel enclosure above the boat ramp under the pier, which contains the power to the system.

Cables run from the location of the small antennae behind the utility closet to the stainless-steel enclosure, which are for GPS and cell phone communication for data transmission. USC will add one (1) additional antenna that will be used for auto calibrating the antennae.

License Agreement USC Newport Pier Page B-4
15-25

3. Photograph depicting current Facilities under the Newport Pier:

4. Photograph from the side of the Newport Pier behind the utility closet, showing two (2) currently installed small antennae where USC plans to add a third (3rd ) additional antenna:

License Agreement USC Newport Pier Page B-5
15-26

5. Facility specifications for GODAR antennae:

License Agreement USC Newport Pier
r3dto antenna spccilt tioru
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t/rca:i '\'C antcnn.t
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Page B-6
15-27

EXHIBIT C

NEW FACILITIES DESCRIPTION AND DEPICTION
NEW FACILITIES:

USC's New Facilities at the Newport Pier will consist of a new generation "GODAR" antenna that will serve to automatically calibrate the two (2) currently existing older generation GODAR antenna that is structurally supported by an existing wooder light pole post as was previously permitted and approved by City. The new GODAR antenna's profile and loading conditions, electrical and structural, to the existing structurally retrofitted light pole post will be similar and lighter in weight. r
\.

NEW ANTENl'-IA _/

LOCATION

PIER COMMON AREA
License Agreement USC Newport Pier
EXISTING l~EWPORT PIER
Page C-1
15-28
Drawings of New Facilities at License Area:
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3 -
fiber/
glass
whip

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13MHzTR
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42MHz
License Agreement USC Newport Pier
a·

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3 Not to scale

CLOUDED AREAS

IS WHAT

PERTAINS TO

NEW SCOPE OF
WORK
Weight : 76 pounds /Mass: 36 kg
Foot anchor: 4 x 5/8" bolts with 6"
spacing.

TIT\.•. Dorn. Mltmil ~-•
ltiSll• D NIA PART NO. OWCNO NIA
DAT£ ~711 11
Page C-2
15-29
SPECIFICATIONS OF NEW FACILITIES :
>)' ~
CODAR
0 ,. t A,-. -t f"'N ~O N ~
License Agreement USC Newport Pier
The SeaSonde•
Page C-3
15-30
Utilities
The utilities required for operation of the high-frequency radar is an outlet inside the stainless-steel waterproof enclosure. There is also an emergency cutoff switch located next to the enclosure. No new outlets or other utilities are required for the New Facilities or continued operation of the Facilities.

Maintenance
Maintenance of the high frequency radar equipment is performed by USC on quarterly basis or as needed. The high frequency radar infrastructure is fairly robust and most maintenance is to verify site integrity.

Management and Access to Facilities
Matthew Ragan is the Principal Investigator for the Facilities and New Facilities on the Newport Pier. He, along with colleagues in the lab, perform the routine maintenance and any repairs if needed.

License Agreement USC Newport Pier Page C-4
15-31

EXHIBIT D

INSURANCE REQUIREMENTS

1. Provision of Insurance. Without limiting USC's indemnification of City, and prior to commencement of work, USC shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance or self-insurance of the type and amounts described below and dn a form reasonably satisfactory to City. USC agrees to provide insurance in accordance with requirements set forth here. If USC uses existing coverage to comply and that coverage does not meet these requirements, USC agrees to amend, supplement or endorse the existing coverage.

2. Acceptable Insurers. Absent self-insurance, all insurance policies shall be issued by an insurance company currently authorized by the State of California, or otherwise be allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law. All insurance policies shall have 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. USC shall maintain Workers' Compensation Insurance or self-insurance providing statutory benefits and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each employee for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California. In addition, USC shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with California law for all of the subcontractor's employees.

B. Commercial General Liability Insurance. USC shall maintain commercial general liability insurance or self-insurance including products completed operations, in an amount not less than three million dollars ($3,000,000) per occurrence, and five million dollars ($5,000,000) general aggregate. USC shall procure and submit to City evidence of completed operations coverage for five (5) years from the time all work under this Agreement is completed.

C. Automobile Liability Insurance. USC shall maintain automobile insurance or self-insurance at least as broad as Insurance Services Office form CA 00 01 covering owned, hired, and non-owned autos bodily injury and property damage for all activities of USC arising from work to be performed under this Agreement, in an amount not less than one million dollars ($1,000,000) combined single limit for each accident.

License Agreement USC Newport Pier Page D-1
15-32
D. Pollution Legal Liability and/or Professional Liability. USC shall maintain insurance for all operations to include onsite and offsite coverage for bodily injury (including death and mental anguish), property damage, non-owned disposal site liability, defense costs, cleanup costs, and pollution conditions that arise from or in connection with the transportation (including loading and unloading) by or on behalf USC, and any waste or waste materials off or away from the project site. Coverage shall be provided for both sudden and accidental and gradual and continuous pollution events with limits no less than two million dollars ($2,000,000) each loss and four million dollars ($4,000,000) in the aggregate. The policy shall not exclude any hazardous materials for which there is an exposure.

E. Excess/Umbrella Liability. If any Excess or Umbrella Liability policies are used to meet the limits of liability required by this Agreement, then said policies shall be "following form" of the underlying policy coverage, terms, conditions, and provisions and shall meet all of the insurance requirements stated in this Agreement, including, but not limited to, the additional insured and primary and noncontributory insurance requirements stated herein. No insurance policies maintained by the City, whether primary or excess, and which also apply to a loss covered hereunder, shall be call upon to contribute to a loss until USC's primary and all excess liability policies are exhausted.

4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions:

A. Waiver of Subrogation. All insurance coverages maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its City Council, boards and commissions, officers, agents, volunteers, employees, and any person or entity owning or otherwise in legal control of the property upon which USC performs the Project and/or Services contemplated by this Agreement or shall specifically allow USC or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. USC hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subcontractors.

B. Additional Insured Status. All liability policies including general liability, excess/umbrella liability, and automobile liability, if required, but not including professional liability, shall provide or be endorsed to provide that City, its City Council, boards and commissions, officers, agents, volunteers, employees, and any person or entity owning or otherwise in legal control of the property upon which USC performs the Project and/or Services contemplated by this Agreement, shall be included as additional insureds under such policies.

License Agreement USC Newport Pier Page D-2
15-33
C. Primary and Non Contributory. All liability policies including commercial general liability, excess/umbrella liability, pollution liability, and automobile liability shall provide or be endorsed to be primary and noncontributory with respect to City, its City Council, boards and commissions, officers, agents, volunteers, and any person or entity owning or otherwise in legal control of the property upon which USC performs the Project and/or Services contemplated by this Agreement. Any insurance or self-insurance maintained by City shall be excess of USC's insurance and shall not contribute with it.

D. Notice of Cancellation. USC shall provide City with thirty (30) calendar days' notice of cancellation or nonrenewal of coverage (except for nonpayment for which ten (10) calendar days' notice is required) for each required coverage.

5. Additional Agreements Between the Parties. The parties hereby agree to the following:

A. Evidence of Insurance. USC shall provide certificates of self-insurance to City as evidence of the insurance coverage required herein. All of the executed documents referenced in this Agreement must be returned to City within ten (10) regular City business days afte'r the Agreement is fully executed. Insurance certificates and endorsements must be approved by City's Risk Manager prior to commencement of work. 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. The City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving USC ninety (90) calendar days' advance written notice of such change.

C. Right to Review Subcontracts. USC agrees that upon request, all agreements with subcontractors or others with whom USC enters into agreements with on behalf of City for research work occurring in the License Area will be submitted to City for review. Failure of City to request copies of such agreements will not impose any liability on City, or its employees. USC shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and USC shall ensure that City is an additional insured on insurance required from subcontractors. For CGL coverage, subcontractors shall provide coverage with a format at least as broad as CG 2d 38 04 13.

License Agreement USC Newport Pier Page D-3
15-34
D. Enforcement of Agreement Provisions. USC acknowledges and agrees that any actual or alleged failure on the part of City to inform USC of non compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder.

E. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Exhibit 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 USC maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for higher limits maintained by USC. Any available proceeds in excess of specified minimum limits of insurance and coverage shall be available to the City.

F. Self-Insured Retentions. If USC's existing coverage includes a self insured retention, the self-insured retention must be declared to City. City may review options with USC, which may include reduction or elimination of the self-insured retention, substitution of other coverage, or other solutions. USC agrees to be responsible for payment of any deductibles on their policies.

G. City Remedies for Non-Compliance. If USC or any subcontractor fails to provide and maintain insurance or self-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 USC's right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to USC or reimbursed by USC upon demand.

H. Timely Notice of Claims. USC shall give City prompt and timely notice of claims made or suits instituted that are caused by or arise out of USC's performance under this Agreement, 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.

I. Coverage not Limited. All insurance coverage and limits provided by USC and available or applicable to this Agreement are intended to apply to the full extent of the policies. Nothing contained in this Agreement or any other agreement relating to City or its operations limits the application of such insurance coverage.

License Agreement USC Newport Pier Page D-4
15-35
J. Coverage Renewal. USC will maintain the coverage required here as long as USC continues to provide any work under this Agreement. USC shall provide proof that policies of insurance required herein expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage.

License Agreement USC Newport Pier Page D-5
Page Intentionally Left Blank

Attachment B
Previous License Agreement
15-36
15-37
3 N AMENDMENT NO. ONE TO LICENSE AGREEMENT
("'1 COASTAL OBSERVATION SYSTEM
1J'i AT THE NEWPORT PIER
'0 This AMENDMENT NO. ONE TO LICENSE AGREEMENT ("Agreement") is entered into between The University of Southern California, a nonprofit public benefit corporation on behalf of its Department of Biological Sciences ("Company"), at 3616 Trousdale Parkway, AHF B30, Los Angeles, California, 90089-0371, and the City of Newport Beach, a California municipal corporation and charter city ("City") on this the 31 st day of July, 2013 ("Commencement Date"). Company and City are each a "Party" and together the "Parties" to this Agreement.

RECITALS
A. City is the owner of the Newport Pier, a public ocean pier, located at the end of McFadden Place in the City of Newport Beach, California, which is more fully depicted by the Pier Depiction attached to the Agreement as Exhibit A (the "Pier").

B. Company is a consortium member of the Southern California Coast Ocean Observations Systems ("SCCOOS"). SCCOOS collects and analyzes ocean current data by transmitting radio waves and reflecting them from the ocean's surface.

C. On August 1, 2012, City and Consultant entered into a License Agreement ("Agreement") to place a radio wave transmitter on the Pier ("Facilities").

D. City desires to enter into this Amendment No. One to reflect the City's agreement to provide electrical services for the Facilities.

E. City and Company mutually desire to amend the Agreement, as provided below.

NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS:

1. UTILITIES
Section 11 of the Agreement is hereby amended in its entirety and replaced with the following: "Company shall not do, nor shall it permit anything to be done that may interfere with the accessibility of the License Area. The electrical services to the Facilities shall be provided for by the City."

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]
15-38
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in duplicate on the dates indicated below.

APPROVED AS TO FORM:

OFFICE OF THE C TY ATTORNEY
Date: '=t- l't /J
ATTEST :

Date: Cf, '},?; ./ 3
City Clerk

CITY OF NEWPORT BEACH,
A California municipal corporation
Date: <°(.1 J\ l'¾
By: ~
David.'
City Manager
COMPANY : The University of Southern
California a nonprofit public benefit
corporation on behalf of its Department of
Biological Sciences
Date: \\ ~-9\c.-.\., '?c\ )
By: 777Al2__
Michael Quick'
Executive Vice President
[END OF SIGNATURES]
15-39

LICENSE AGREEMENT

COASTAL OBSERVATION SYSTEM

AT THE NEWPORT PIER
This LICENSE AGREEMENT ("Agreement") is entered into between The University of Southern California, a nonprofit public benefit corporation on behalf of its Department of Biological Sciences ("Company''), at 3616 Trousdale Parkway, AHF B30, Los Angeles, California, 90089-0371, and the City of Newport Beach, a municipal corporation and charter city ("City'') on this the I ~ f day of ftv,J IJtSt 2012 ("Commencement Date"). Company and City are each a "Party" and together the "Parties" to this Agreement.

C. Company desires to license from City, on a non-exclusive basis, the right to use that certain portion of the Pier, as further depicted in Exhibit B attached hereto, and incorporated herein by this reference (the "License Area").

D. Company desires to install, upon the License Area, the radio wave transmitter and its related equipment, as described and depicted in Exhibit C, attached hereto and incorporated herein by this reference (collectively, the "Facilities").

E. City is willing to make the License Area available to Company, subject to the covenants and conditions set forth in this Agreement, on a non-exclusive basis, to facilitate research efforts for SCCOOS.

NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS:

1. License
(a) City grants a non-exclusive license ("License") to Company for the Term of this Agreement, to use the License Area for the uses specified in this Agreement in compliance with the terms of all governmental licenses, permits and approvals required by Federal, State or local governmental agencies, for construction, installation and maintenance of the facilities and utility wires, cables, conduits as necessary to operate the Facilities. All installation and maintenance activities shall be at Company's sole cost and expense, including but not limited to the fees and costs associated with the permits and government approvals described in Section 3, pursuant to plans approved in 1 15-40
advance in writing by the City. The License is subject to the terms, covenants and conditions hereinafter set forth, and Company covenants, as a material part of the consideration for the License, to keep and perform each and every term, covenant and condition of this Agreement.
(b) Company shall be responsible for all maintenance associated with the Facilities, including all associated costs and expenses. Company shall provide twenty four (24) hour telephone notice to the Harbor Resources Division Manager at (949) 644- 3043 prior to performing any Facilities maintenance or repair.

2. Uses
(a) Company shall use the License Area for the sole purpose of constructing, maintaining, securing and operating the Facilities, described in Exhibit C, to transmit and receive radio communication signals on various frequencies (between 24 and 27 MHZ, 150 KHz bandwidth; 900 MHz; WiFi 2.4 GHz or Wireless 3G broadband) to map the ocean surface currents and provide data communications, respectively. The Facilities and its operating frequencies may not be expanded or modified except upon written approval of the Community Development Director, not to be unreasonably withheld, and as may be required by this Agreement. Construction and operation of the Facilities shall be at Company's sole expense. Company shall keep the Facilities free from hazards or risk to the public health, safety or welfare. (b) Company shall install, at the License Area, a stainless steel cabinet containing an uninterruptable power supply, transmitter, receiver, computer, network switch, Freewave radio and WIFI radio. The cabinet will be located on the lower platform of the Pier. Adjacent to the light pole located at the northwest corner of the Pier, Company will place a twenty foot (20') stainless steel pole with a six foot (6') (for a total of twenty-six feet (26')) aluminum pole attached at the top. A CODAR combiner box with four radial antennae and one whip antenna will be placed on top of the pole sections. There will also be a sixty-five inch (65") Freewave antenna attached to the stainless steel pole and a GPS antenna mounted on the bracket holding the Freewave antenna. A directional Wi-Fi antenna will be located under the Pier. Cables connecting the radios to the antennae will be placed in conduit running under the Pier. Collectively, the above-described shall be referred to as "Facilities", which are described and depicted more particularly in Exhibit C, attached hereto and incorporated herein by this reference.
(c) Company represents to City that the Facilities are safe, as reported in the following studies provided by the Company and on file with the City: 1) Department of the Navy Electromagnetic Environmental Effects (E3) Review of the Request for Site Approval for the Installation of a Coastal Ocean Dynamics Application Radar (CODAR) at Naval Base Point Loma, San Diego, CA, Final Report issued November 2002; 2) University of California, Santa Barbara, Marine Science Institute Report regarding SCCOOS SeaSonde emissions issued to the Los Angeles County Fire Department April 24, 2007; and 3) Federal Communications Commission OET Belletin 56, 4th Edition, issued August 1999.
(d) Except as provided under this Agreement, Company shall not paint, install lighting, decorations, signs, lettering or advertising media of any type or any other visual 2 15-41
displays, on or about the License Area without the prior written consent of City.

Notwithstanding the foregoing, Company shall place warning signs on or about the Facilities in compliance with any applicable Federal, State or local law.

3. Government Approvals
Company shall obtain all governmental licenses, permits and approvals required by Federal, State or local governmental agencies, enabling Company to construct, operate, repair and remove the Facilities in the License Area, including but not limited to California Coastal Commission approval.

4. Term
The initial Term of the License granted hereunder ("Term") shall commence on the Commencement Date and continue for a period of five (5) years. After the Commencement Date, this License shall not be revoked or terminated except as expressly provided in this Agreement.

5. Fees and Costs
In lieu of a License Fee, as defined below, Company shall provide to City, all information gathered from Company's Facilities, via a web link to a Newport Beach site specific.

6. Interference with Telecommunications
(a) Company agrees that its operation of the Facilities shall at all times comply with all Federal Communications Commission ("FCC") requirements and shall not cause any direct or indirect interference with the operation of City's own wireless communications facilities, including but not limited to public safety transmissions, police and fire communications, water or sewer internal or external radio signals and communications, as they now exist or may from time-to-time hereafter exist ("City's Facilities"). Company also agrees that its operation of the Facilities shall not cause any interference with public telecommunications such as cell phone or wireless internet use. (b) In the event of any interference with City's Facilities or public telecommunications, Company shall work with the City to correct the interference within two (2) hours of City's written or telephone notice to Company. If it is determined the interference is caused by the Facilities and if Company is unable to correct interference to City's satisfaction, Company shall immediately cease its operation of the Facilities until the cause of the interference is corrected to City's satisfaction. If Company fails to correct any interference, City may, without notice, in addition to and without compromising any other available remedy cut off power to the Facilities in the manner set forth in Section 7 below.
(c) Prior to making any changes to the frequency or operating conditions, Company shall submit plans for the proposed changes to City for its review and written approval. Company agrees to fund any studies both parties deem necessary to ensure that any contemplated changes will be compatible with the City's Facilities. No frequency or operating condition changes shall occur prior to the City's written approval. 3 15-42

7. Emergency
(a) Company understands that the Facilities are located on a public structure or within public property and emergency situations may develop from time-to-time that require power to the Facilities to be immediately shut off and thereby interfere or temporarily terminate Company's use of the Facilities. Company agrees that if such a situation occurs, and/or there are frequency interferences of any nature between City's Police and Fire Department public safety communications equipment or City's facilities affecting operation of sewer or water service and that of Company in a manner that threatens public health or safety, City shall have the right, without notice, to immediately shut off power to the Facilities and any equipment of Company's located at the License Area for the duration of the emergency. Company agrees not to hold City responsible or liable for and shall protect, defend, indemnify and hold City harmless for any damage, loss, claim or liability of any nature suffered as a result of the loss of the use of the Facilities by the shut off of power.
(b) Company agrees to install a clearly marked and accessible master power "cut-off' switch on their Facilities for the purpose of assisting City in such an emergency. (c) Unless otherwise specifically provided in a notice of termination of this Agreement, City's exercise of the right to shut off any power to the Facilities pursuant to Section 7(a) is not intended to constitute a termination of this Agreement by either party and such event is a risk accepted by the Company. Company and City shall meet after the City determines that an emergency situation has ended to establish the time and manner in which power shall be restored.
(d) City shall have the right to determine what constitutes an "emergency situation" pursuant to this Section.

8. Acceptance of Condition of License Area
Company shall accept use of the License Area in "as is" condition, with no warranty, express or implied from the City as to any latent, patent, foreseeable and unforeseeable condition of the License Area, including its suitability for the use intended by Company.

To the best of City's knowledge, the License Area has not been used for generation, storage, treatment or disposal of Hazardous Substances as defined in Section 24.

Company has conducted its own appropriate due diligence investigation of the License Area prior to its execution of this Agreement.

9. No Interest in Property
Nothing herein shall be deemed to create a lease, or easement of any property right, or to grant any, possessory or other interest in the License Area, or any public right-of way, other than a real property license to use and access the License Area, revocable and for a term as set forth in this Agreement.

10. Reservation of Rights
Company understands, acknowledges and agrees that any and all authorizations granted to Company under this Agreement are non-exclusive and shall remain subject to all prior and continuing regulatory and propriety rights and powers of City to regulate, 4 15-43
govern and use City property, as well as any existing encumbrances, deeds, covenants, restrictions, easements, dedications and other claims of title that may affect City property.

11. Utilities
Company shall not do, nor shall it permit anything to be done that may interfere with the accessibility of the License Area. The Facilities shall be separately metered. Company shall be responsible for the cost of all utility services necessary for the operation of the Facilities, and if required by City, shall have such utilities installed and/or connected if already installed, and maintained at Company's sole cost and expense (along with all ongoing use charges). If required, Company shall obtain an encroachment permit from City's Public Works Department and submit plans for underground construction of any required utility lines to City for its review and approval prior to commencement of construction.

12. Inspection
City shall be entitled, at any time, without prior notice, to inspect the Facilities for compliance with the tenms of this Agreement, and with all applicable Federal, State, City and local government regulations.

13. City Retention Rights
Company's right to use the License Area during the term of this Agreement shall be subordinate and junior to the rights of City to use and occupy the License Area for any purpose that does not interfere with Company's use of the License Area as provided herein.

14. Company's Retention of Title
Title to the Facilities placed at the License Area by Company shall be held by Company or its equipment lessors, successors, or assigns. The Facilities shall not be considered fixtures. Company has the right to remove any or all of the Facilities at its sole expense from time-to-time and in all events by the expiration of this License or within thirty (30) days after an early tenmination of this License.

15. Surrender
Upon expiration or termination of this Agreement, Company at its sole cost and expense, shall within thirty (30) days of written notice from City, remove the Facilities, restore the License Area to its original condition less regular wear and tear or to a condition satisfactory to and approved by City, and vacate the License Area. Should Company fail to restore the License Area to a condition described above, City may perfonm such work or have such work performed by others and Company shall reimburse City for all direct and indirect costs associated with such work upon receipt of an invoice for such costs.

16. Assignment
5 15-44
This Agreement and the rights and obligations of Company shall not be assigned, transferred, or hypothecated (collectively referred to as "transferred"), in whole or in part without City's prior written approval. Any attempted transfer in violation of this Section shall be null and void.

17. Taxes
Company shall pay all personal interest property taxes, real property taxes, possessory interest tax, fees and assessments which may at any time be imposed or levied by any public entity and attributable to the Facilities. City hereby gives notice to Company, pursuant to Revenue and Tax Code Section 107.6, that this Agreement may create a possessory interest which is the subject of property taxes levied on such interest, the payment of which taxes shall be the sole obligation of Company.

18. Relocation
Company agrees that whenever any City improvements may be required (for example, the replacement or repair of the Pier), the City may require the relocation of the Facilities at the Company's expense, without making any claim against the City for reimbursement or damage therefore. Except in the event of an emergency or other situation requiring immediate relocation of the Facilities, City shall provide Company with not less than sixty (60) days written notice of relocation specifying a date by which the relocation is to take place.

19. Termination
This Agreement may be terminated by either Party with or without cause with thirty (30) days written notice to either Party. Any termination requires Company to comply with the surrender obligations of Section 15 above.

20. Construction
( a) Company agrees to take all prudent action to protect City Facilities from any damage or injury caused by any work performed by or on behalf of Company regarding the construction, installation, operation, inspection, maintenance, repair, reconstruction, replacement, relocation, or removal of its Facilities or the failure, deterioration or collapse of such Facilities.
(b) Company shall, at its sole cost and expense, repair any damage to the License Area, to the extent such damage is caused by Company or any of its agents, representatives, employees, contractors, subcontractors, or invitees. Company shall immediately notify the City Manager or his/her designee, and the appropriate public safety agency (e.g. Police and Fire Department) of any damage or injury caused by work authorized pursuant to this Agreement.
( c) Without limitation of any other remedy available hereunder or at law or in equity, if Company fails to repair or refinish any such damage, City may, at its sole discretion, but not be required to, repair or refinish such damage and Company shall reimburse City of all costs and expenses incurred in such repair or refinishing within thirty (30) days of receipt of invoice from City.
6 15-45
{d) Company, prior to the execution of this Agreement, shall submit to the City and, throughout the Term and each Renewal Term, maintain in effect, a bond, letter of credit or other security, in the principal amount of Five Thousand and 00/100 Dollars ($5,000.00) ("Security") to ensure and secure faithful compliance with the conditions of this Agreement. The Security shall be in a form acceptable to the City, and shall remain in effect throughout the Term of this Agreement. The purpose of the Security is to provide payment to the City for any and all expenditures incurred by the City under this Agreement, including but not limited to costs of repairs and cost of removal of the Facilities upon expiration or termination of this Agreement should Company fail to do so as required by this Agreement. The Security shall in no way limit the liability or obligations of Company or its insurers under this Agreement. If the funds represented by the Security become exhausted, Company shall immediately provide the City with a new security in the amount necessary to provide full required Security.

21. Maintenance
At its sole cost and expense, Company shall take good care of the Facilities and keep the Facilities neat, clean and free from graffiti, dirt and rubbish at all times.

22. Indemnification
Company shall indemnify, release, defend and hold harmless City, its City Council, boards and commissions, officers, agents, and employees against any and all claim, demand, suit, judgment, loss, liability or expense of any kind, including attorneys' fees and administrative costs, arising out of or resulting from the latent or patent defects in design and construction of the Facilities or any acts or omissions, intentional or negligent, of Company or Company's officers, agents or employees in the performance of their duties and obligations under this Agreement, except to the extent such claims are caused by the negligence, or willful misconduct of City, its officers, agents and employees.

23. Insurance
{a) Provision of Insurance. Without limiting Company's indemnification of City, and prior to commencement of work, Company 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. Company agrees to provide insurance in accordance with requirements set forth here. If Company uses existing coverage to comply and that coverage does not meet these requirements, Company agrees to amend, supplement or endorse the existing coverage. {b) 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.
(c) Coverage Requirements.
(i) Workers' Compensation Insurance. Company shall maintain 7 15-46
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. ( 1) Company 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.
(ii) General Liability Insurance. Company 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, 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.
(iii) Automobile Liability Insurance. Company 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 the Company 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. (d) Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions:
(i) 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 Company or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Company hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subcontractors.
(ii) Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, 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. (iii) 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.
(iv) Notice of Cancellation. All policies shall provide City with thirty (30) days notice of cancellation (except for nonpayment for which ten (10) days notice is required) or nonrenewal of coverage for each required coverage. (e) Additional Agreements Between the Parties. The parties hereby agree to 8 15-47
the following:
(i) Evidence of Insurance. Company 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.
(ii) City's Right to Revise Requirements. The City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving the Company sixty (60) days advance written notice of such change. If such change results in substantial additional cost to the Company, the City and Company may renegotiate Company's compensation. (iii) Enforcement of Agreement Provisions. Company acknowledges and agrees that any actual or alleged failure on the part of the City to inform Company of non-compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder.
(iv) 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. (v) 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. (vi) City Remedies for Non Compliance If Company or any subcontractors 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 Company's right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Company or reimbursed by Company upon demand. (vii) Timely Notice of Claims. Company shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Company's performance under this Agreement, and that involve or may involve coverage under any of the required liability policies.
(viii) Company's Insurance. Company 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.

24. Hazardous Substances
9 15-48
(a) From the date of execution of this Agreement and throughout the Term, Company shall not use, store, manufacture or maintain at the License Area any Hazardous Substances except (i) in such quantities and types found customary in construction, repair, maintenance and operations of the Facilities approved by this Agreement, (ii) petroleum and petroleum products contained within regularly operated motor vehicles. Company shall handle, store and dispose of all Hazardous Substances it brings onto the Pier and License Area in accordance with applicable laws. (b) For purposes of this Agreement, the term "Hazardous Substance" means:
(i) any substance, product, waste or other material of any nature whatsoever which is or becomes listed, regulated, or addressed pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq. ("CERLCA"); the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq.; the Resource Conversation and Recovery Act, 42 U.S.C. Section 6901 et seq. ("RCRA"); the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.; the Clean Water Act, 33 U.S.C. Section 1251 et seq.; the California Hazardous Waste Control Act, Health and Safety Code Section 25100 et seq.; the California Hazardous Substance Account Act, Health and Safety Code Sections 25330 et seq.; the California Safe Drinking Water and Toxic Enforcement Act, Health and Safety Code Sections 25249.5 et seq.; California Health and Safety Code Sections 25280 et seq. (Underground Storage of Hazardous Substances); the California Hazardous Waste Management Act, Health and Safety Code Sections 25170.1 et seq.; California Health and Safety Code Sections 25501 et seq. (Hazardous Materials Response Plans and Inventory); or the Porter-Cologne Water Quality Control Act, Water Code Sections 13000 et seq., all as they, from time-to-time may be amended, (the above-cited statutes are here collectively referred to as "the Hazardous Substances Laws") or any other Federal, State or local statute, law, ordinance, resolution, code, rule, regulation, order or decree regulating, relating to, or imposing liability or standards of conduct concerning, any hazardous, toxic or dangerous waste, substance or material, as now or at any time hereafter in effect; (ii) any substance, product, waste or other material of any nature whatsoever which may give rise to liability under any of the above statutes or under any statutory or common law theory, including but not limited to negligence, trespass, intentional tort, nuisance, waste or strict liability or under any reported decisions of a state or federal court; (iii) petroleum or crude oil; and (iv) asbestos. (c) Notwithstanding any contrary provision of this Agreement, and in addition to the indemnification duties of Company set forth in Section 22, Company agrees to indemnify, defend with counsel acceptable to City, protect, and hold harmless the City, its officials, officers, employees, agents, and assigns from and against any and all losses, fines, penalties, claims, damages, judgments, or liabilities, including, but not limited to, any repair, cleanup, detoxification, or preparation and implementation of any remedial, response, closure or other plan of any kind or nature which the City, its officials, officers, employees, agents, or assigns may sustain or incur or which may be imposed upon them in connection with the use of the License Area provided under this Agreement, arising from or attributable to the storage or deposit of Hazardous Substances on or under the License Area. This Section 24(c) is intended to operate as an agreement pursuant to Section 107(e) of CERCLA, 42 USC Section 9607(e), and California Health and Safety Code Section 25364, to insure, protect, hold harmless, and indemnify City for any claim pursuant to the Hazardous Substance Laws or the common law. This Section shall survive the termination or expiration of this Agreement. 10 15-49
(d) City agrees that City will not, and will not authorize any third party to use, generate, store, or dispose of any Hazardous Substances on, under, about or within the License Area and Pier in violation of any law or regulation. City and Company each agree to defend, indemnify and hold harmless the other and the other's partners, affiliates, agents and employees against any and all losses, liabilities, claims and/or costs arising from any breach of any representation, warranty or agreement contained in this Section 24. This Section 24 shall survive the termination of this Agreement.

Upon expiration or earlier termination of this Agreement, Company shall surrender and vacate the License Area and deliver possession thereof to City on or before the termination date free of any Hazardous Substances released into the environment at, on or under the License Area that are directly attributable to Company.

25. Compliance with Laws
Company, at its sole cost, shall observe, perform, and comply with all laws, statutes, ordinances, rules, and regulations promulgated by any governmental agency and applicable to the License Area, or the use thereof, including all RF safety standards, Americans with Disability Act requirements, applicable zoning ordinances, building codes and environmental laws. Company shall not occupy or use the License Area or permit any portion of the License Area to be occupied or used for any use or purpose that is unlawful in part or in whole, or deemed by City to be disreputable in any manner or extra hazardous on account of fire.

26. Not Agent of City
Neither anything in this Agreement nor any acts of Company shall authorize Company or any of its employees, agents or contractors to act as agent, contractor, joint venturer or employee of City for any purpose.

27. No Third Party-Beneficiaries
City and Company do not intend, by a provision of this Agreement, to create in any third party, any benefit or right owed by one Party, under the terms and conditions of this Agreement, to the other Party.

28. Notices
All notices and other communications required or permitted to be given under this Agreement, including any notice of change of address, shall be in writing and given by personal delivery, or deposited with the United States Postal Service, postage prepaid, addressed to the parties intended to be notified. Notice shall be deemed given as of the date of personal delivery, or if mailed, upon the date of deposit with the United States Postal Service. Notice shall be given as follows:
(a) To City:

City Manager
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA, 92658
11 15-50
{b) To Company:

Attn: Dr. Burton H. Jones
Department of Biological Sciences
University of Southern California
3616 Trousdale Parkway
Los Angeles, CA 90089-0371
Phone: 213-740-5765 / FAX: 213-740-8123
(c) Company's emergency contact:

Name:

Department:
24 hour phone number:

29. Entire Agreement Amendments
Mr. Matthew Ragan
Department of Biological Sciences, USC
949-232-7202
(a) The terms and conditions of this Agreement, all exhibits attached, and all documents expressly incorporated by reference, represent the entire Agreement of the parties with respect to the subject matter of this Agreement. {b) This written Agreement shall supersede any and all prior agreements, oral or written, regarding the subject matter between the Company and the City. (c) No other agreement, promise or statement, written or oral, relating to the subject matter of this Agreement, shall be valid or binding, except by way of a written amendment to this Agreement, approved as to form by the City Attorney. (d) The terms and conditions of this Agreement shall not be altered or modified except by a written amendment to this Agreement signed by the Company and City.
(e) If any conflicts arise between the terms and conditions of this Agreement, and the terms and conditions of the attached exhibits or the documents expressly incorporated by reference, the terms and conditions of this Agreement shall control. (f) Any obligation of the Parties relating to monies owed, as well as those provisions relating to limitations on liability and actions, shall survive termination or expiration of this Agreement.

30. Waivers
The waiver by either Party of any breach or violation of any term, covenant or condition of this Agreement, or of any ordinance, law or regulation, shall not be deemed to be a waiver of any other term, covenant, condition, ordinance, law or regulation, or of any subsequent breach or violation of the same or other term, covenant, condition, ordinance, law or regulation. The subsequent acceptance by either Party of any fee, performance, or other consideration which may become due or owing under this Agreement, shall not be deemed to be a waiver of any preceding breach or violation by the other Party of any term, condition, covenant of this Agreement or any applicable 12 15-51
law, ordinance or regulation.

31. No Attorneys' Fees
The prevailing Party in any action brought to enforce the terms and conditions of this Agreement, or arising out of the performance of this Agreement, shall not be entitled to recover its attorneys' fees.

32. City Business License
Company shall obtain and maintain during the duration of this Agreement, a City business license as required by the Newport Beach Municipal Code.

33. Applicable Law
This Agreement shall be construed in accordance with the laws of the State of California. Any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange.

34. Time is of the Essence
Time is of the essence for this Agreement.

35. 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]
13 15-52
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in duplicate on the dates indicated below.

APPROVED AS TO FORM:

OFFICE OF THE CITY ATTORNEY
Date: lLl,f fZ,
By: ~ ~ ( &r)
AaronC~ ~
)I 1u\l?-City Attorney , ,
ATTEST:

Date: __ 1 ........ ·_'LE_-_/1--__
By: ~J ~
Leilani I. Bro
City Clerk
t

CITY OF NEWPORT BEACH,
A California municipal corporation
Date: ~ \ J>:1 \ ;,0\7,
'
By: ~ C-.\L..i\~
David A. iff '
City Manager
COMPANY: The University of Southern
California a nonprofit public benefit
corporation on behalf of its Department of
Biological Sciences
::te:::;zz,
Michael Quick
Executive Vice Provost
By:. _____________ _
[END OF SIGNATURES]
Attachments: Exhibit A - Pier Depiction
Exhibit B - License Area Depiction
Exhibit C - Facilities Description and Depiction
A0B-00073/ License Agreement 7. 16. 12_Finaf
14 15-53
EXHIBIT "A"
Pier Depiction
1 Newport Pier
Newport Beach, CA 92663-4340
NEWPORT BEACH PIER WT-LYING ON C.L OF MC FADDEN PL EXTENDED SW LY BEYOND THE IIlGH TIDE LINE
15-54
EXHIBIT "B"
License Area Depiction
15-55
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EXHIBIT "C "
Facilities Description and Depiction
15-57
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PROPERTY OWNER
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APPLICANTS
Scripps lnsliMion of Oa:ionogrophy
Coos1ol b5ervlng R&O Cenler
95 Glrnanllr,WC011l
lo ,CA 9~0930'113
0:mo:1: II P.c,<>KI, Op<,,:,I""'' Marciaor
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Unlvc11lly of Soul hem Cotlomlo
Wrigley l~ilL.r!& for Environmonlsol Studlc,
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Im f<tw<!.,_ CA 900B9-0J71
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CONSULTANTS
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Bn:en Engineering, Inc.
1983 Wr,1. 190~51, SJln 200
J..,,.,,o,, CA 90504
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15-62

CODAR ANTENNA DETIALS STAINLESS STI UT DETAILS
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Attachment C
City Council Policy F-7
15-63
F- 7

1 INCOME AND OTHER PROPERTY

The City owns and manages an extensive and valuable assortment of property including streets, parks, beaches, public buildings and service facilities. The City also owns or ground leases and/or operates a yacht basin, resort hotel and apartment property, a luxury residential development and various other income - producing properties. Much of the income property is tidelands, filled tidelands or waterfront.

Unencumbered fee value of income property is substantial.

As owner/manager of property, the City is the steward of a public trust, and state law requires the City to maximize its returns on state-managed property or be subject to a charge of making a gift of public funds.

Nevertheless, the City Council recognizes the importance of this property not only as a revenue generator, but also as a means to provide otherwise financially less feasible uses and facilities that benefit the community.

In managing its property, the City will continually evaluate the potential of all City owned property to produce revenue. This may include leasing or licensing unused land, renting vacant space, and establishing concessions in recreation areas or other similar techniques. The City Council will evaluate the appropriateness of establishing new income generating opportunities on City controlled areas using sound business principles and after receiving input from neighbors, users and the public.

The policy of the City Council is that income and other property be held and managed in accordance with the following:

A. Whenever a lease, license, management contract, concession or similar action regarding income property is considered by the City, an analysis shall be conducted to determine the maximum or open market value of the property. This analysis shall be conducted using appraisals or other techniques to determine the highest and best use of the property and the highest income generating use of the property.

B. All negotiations regarding the lease, license, management contract, concession, or similar action regarding income property shall include review of an appraisal or analysis of the use being considered for the property conducted by a reputable and independent professional appraiser, real estate consultant, or business consultant.

C. The City shall seek, whenever practical and financially advantageous, both in the short and long term, to operate or manage all property and facilities directly with City staff or contractors, provided staff have the expertise needed to competently do so, or to oversee the work of contractors.

D. In most negotiations regarding the lease, license, management contract, concession, or similar action regarding an income or other property, the City shall seek revenue equivalent to the open market value of the highest and best use; and, whenever practicable the City shall conduct an open bid or proposal process to ensure the highest financial return.

15-64
F- 7

2 E. However, in some circumstances the City may determine that use of a property by the public for recreational, charitable or other nonprofit purpose is preferred and has considerable public support, in which case the City may determine that non -financial benefits justify not maximizing revenue from such property. In such circumstances, the City has a vested interest in ensuring that the lessee of such property operates the activities conducted on or from the property in the manner that has been represented to the City throughout the duration of any lease or contract with the City.

F. Whenever less than the open market or appraised value is received or when an open bid process is not conducted, the City shall make specific findings setting forth the reasons thereof. Such findings may include but need not be limited to the following:

1. The City is prevented by tideland grants, Coastal Commission guidelines or other restrictions from converting the property to another use.

2. Redevelopment of the property would require excessive time, resources, expertise and costs, which would outweigh other financial benefits.

3. Converting the property to another use or changing the operator, manager, concessionaire, licensee, or lessee of the property would result in excessive vacancy, relocation or severance costs, real estate commissions, tenant improvement allowances, expenses or rent concessions which would outweigh other financial benefits.

4. Converting residential property to another use or opening residential leases to competitive bid would create recompensable liabilities and other inequities for long-term residents.

5. The property provides an essential or unique service to the community or a clearly preferred use that enjoys substantial support in the community that might not otherwise be provided were full market value of the property be required.

6. The property serves to promote other goals of the City such as affordable housing, preservation of open space, uses available to the public or marine related services.

G. Generally, lengths of licenses, leases, management contracts, concessions, or similar agreements will be limited to the minimum necessary to meet market standards or encourage high quality improvements and will contain appropriate reappraisal and inflation protection provisions. Also, all agreements shall contain provisions to assure complete audits periodically through their terms.

H. All negotiations regarding the license, lease, management contract, concession or similar action regarding income property shall be conducted by the City Manager or his/her designee under the direction of any appropriate City committees.

I. To provide an accurate accounting of actual net revenues generated by the City’ s income property, all costs directly attributable or allocable to the management of a specific income property shall be charged against the gross revenues collected on that property in the fiscal year the costs are incurred.

Costs so chargeable include, but are not limited to, property repairs and maintenance, property appraisals, and consultant fees, as authorized by the City Council, City Manager, or by this Income Property Policy.
15-65
F- 7

3 J. The City Manager or his/her designee is authorized to sign a license, lease, management contract, concession, or similar agreement or any amendment thereto, on behalf of the City. Notwithstanding the foregoing, the City Manager or his/her designee, or a City Council member, may refer any license, lease, management contract, concession or similar agreement or any amendment thereto, to the City Council for its consideration and/or action.

K. The City’s portfolio of quality income producing properties adds an element of diversification to a portfolio otherwise invested primarily in financial assets. Certain of those income properties are restricted from sale by their terms of grant, state agency regulations or rules, other federal and state guidelines, private covenant or agreement or otherwise. For those properties not so restricted from sale, an analysis shall be prepared to determine the following prior to such income producing property being offered for sale:

1. The maximum open market value of the City’s interest in the property in its as is condition.

2. If the property is in an important location, a determination of the possible future consequences of the City no longer controlling that property.

3. If the current rent is contractually low and significant rent increases are likely within a finite period.

4. The likelihood of significant increases in the ability of the property to generate income after the expiration of any current lease of the property.

5. The likelihood of a lease extension being requested by the tenant and the ability to substantially increase rents or require significant improvements to enhance the utility and the value of the property as consideration for granting such an extension.

6. The value of the revenue stream from (i) lease income over the life of an existing lease and/or (ii) likely lease revenue if an existing lease were to be renewed or the property re- let to a different tenant; and/or (iii) lease income from the property if it were to be converted to its highest and best use, compared with the financial benefits of the use of the proceeds of a sale and if, considering the totality of the circumstances, such use of the proceeds of a sale is preferable to retaining the property in question.

History

Adopted F-24 – 7-27-1992
Amended F-24 – 1-24-1994
Amended F-7 – 2-27-1995
Amended F-7 – 2-24-1997
Amended F-7 – 5-26-1998
Amended F-7 – 8-11-2009
Amended F-7 – 5-14-2013
Amended F-7 – 2-12-2019
Amended F-7 – 11-14-2023
15-66

16-1

NEWPORT BEACH

City Council Staff Report

COUNCIL STAFF REPORT

CITY OF

September 9, 2025
Agenda Item No. 16
ABSTRACT:

Since 2015, a certified farmers’ market has operated each Sunday morning in McFadden Square at the base of the Newport Pier. The current license agreement for the market is set to expire September 30, 2025. In compliance with the City of Newport Beach ’s procurement requirements, a Request for Proposal s (RFP) was published in December 2024 to identify a qualified operator for continued operation of the market . Only one proposal was received , from the current operator . Sprouts of Promise Foundation was selected as the most qualified and responsive proposer. For the City Council’s consideration is a new, five -year Revocable License Agreement (Attachment A) with Sprouts of Promise Foundation for operation and management of the certified farm ers’ market at McFadden Square and Newport Pier, including a request to waive City Council Policy F-7.

RECOMMENDATIONS:
a) Determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; b) Authorize the City Manager and City Clerk to execute the Revocable License Agreement between the City of Newport Beach and Sprouts of Promise Foundation for Temporary Use of the City Property for the Certified Farmers’ Market at McFadden Square and Newport Pier in a form substantially similar to the agreement attached to the staff report; and
c) Approve a waiver of City Council Policy F -7 – Income and Other Property based on the findings contained in this staff report and the Agreement that charging less than fair market rent promotes the City’s goals to provide essential or unique services to the community that cannot otherwise be provided if full market rates were charged.

TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Seimone Jurjis, Assistant City Manager, 949-644-3001, [email protected]
PREPARED BY: Lauren Wooding Whitlinger, Real Property Administrator - 949-644- 3236, [email protected]
TITLE: Revocable License Agreement with Sprouts of Promise Foundation for Temporary Use of City Property for a Certified Farmers’ Market at McFadden Square and Newport Pier
--
Revocable License Agreement with Sprouts of Promise Foundation for Temporary Use of City Property for a Certified Farmers’ Market at McFadden Square and Newport Pier September 9, 2025

Page 2 ends

16-2
DISCUSSION:

Since 2015, a certified farmers’ market has operated on the City-owned property known as McFadden Square Plaza at the base of the Newport Pier on the Balboa Peninsula .

The market, managed by Sprouts of Promise Foundation, was relocated to McFadden Square from the public right-of-way on Via Oporto at Central Avenue after operating there for more than four years due to extensive construction in the Lido Marina Village area.

The weekly Newport Pier Certified Farmers’ Market (Market) operates on the City-owned pedestrian plaza at the base of the Newport Pier and the corner of West Balboa Boulevard and McFadden Place, adjacent to the West Ocean Front public parking lot, as shown in Figure 1 below.

Figure 1 – location of current market
The Market runs every S unday morning from 8 a.m. to 2 p.m., with set -up starting no earlier than 7 a.m. and tear -down and clean-up completed by 4 p.m . The Market layout takes the various converging pedestrian and bike pathways into consideration so as not to impede the flow of traffic in the area (Attachment B).

Under the current license agreement, the manager pays the City a license fee of $364.56 per month, or $4,374.72 per year. The Market is operating as a “certified farmers’ market” with “certified producers” as defined by the California Code of Regulations [Title 3,

Revocable License Agreement with Sprouts of Promise Foundation for Temporary Use of City Property for a Certified Farmers’ Market at McFadden Square and Newport Pier September 9, 2025

Page 3 ends

16-3
Sections 1392.2(d) and 1392.2(e)] with the appropriate permits and approvals from the State of California Department of Agriculture and the Orange County Health Department.

The current license agreement allows for up to 40 vendors, with participation each week averaging around approximately 40 vendors.

Request for Proposals
City Council Policy F-7 – Income and Other Property (Policy F-7) establishes the selection process for all tenants utilizing City -owned real property assets. In anticipation of the expiration of the current license, and in accordance with Policy F -7, the City published RFP No. 20 25-32 in December 2024 to solicit bids for the use of City -owned property.

The RFP was distributed through PlanetBids, the City’s web -based procurement portal, and was also emailed to more than 150 companies involved in operating an d managing community and farmers markets throughout Southern California.

A mandatory pre-bid site walk was held on January 16, 2025, and proposals were due to the City by February 6, 2025.

The purpose of the RFP was to solicit proposals from qualified operators interested in continuing the management and operation of the certified farmers’ market at the Newport Pier. Market operators were asked to include the following in their proposals:

1. Their ability to provide a high quality, family-friendly certified farmers’ market;

2. Their experience attracting high -quality vendors that are certified farmers or producers;

3. A comprehensive plan detailing the proposed market layout and vendor mix, with an information tent, a restroom, trash and recycling, and signage plan; and

4. Information about the operator’s staffing and management of the necessary permits and licensing, safety and security, set-up and operating guidelines was also required, as well as the marketing and outreach capabilities.

Selection Process
Proposers were required to have a minimum of five years’ experience delivering community or certified farmers’ markets for local governments with knowledgeable and experienced staff. The proposers’ ability to retain the mix and quality of products offered at the existing market was of particular concern to the panel.

Proposals were reviewed by a staff panel and scored based on the following criteria:
• Qualifications and Experience of the Firm
• Qualifications and Experience of Key Personnel and Staffing • Method of Approach / Project Approach
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• Participating Vendors
The City received one proposal to operate the McFadden Market. City staff conducted a thorough review of the proposal and determined the sole proposer, Sprouts of Promise Foundation, met the qualifications and requirements of the RFP and illustrated its capacity to successfully operate the McFadden Market, with a total weighted score of 2,740 out of 3,000 maximum points.

Proposed Market
Sprouts of Promise Foundation (Licensee) is the incumbent market operator and proposes to continue operating the farmer’s market by retaining the existing vendors and producers and adding a limited number of new vendors to complement the existing offerings and meet the interests of the community. The Licensee will also allow a limited number of the vendors to offer unique “hot” food items available for consumption at the market, aimed towards not pulling business away from local retail establishments.

With an emphasis on safety and security, appropriate permits will also be obtained from the Fire Department to ensure the safety of the food vendors that will be cooking onsite.

The Licensee’s proposed market layout and site plan is shown in Attachment B.

City Council Policy F-7, Income and Other Property
Due to the unique services provided to the community, and the income and operational limitations of managing a weekly market, a nominal amount of rent is proposed in the Agreement to offset some of the City’s administrative costs. Staff believes the following findings can be made, as required by Policy F-7 (Attachment C) when less than fair market value rent is received in exchange for non -financial benefits , and a waiver is requested:

1. The Market provides an essential or unique service to the community that might not otherwise be provided if full market value rent of the property was required; and

2. With the proposed rent charged at less than fair market value, the use provides an important amenity to the City and might not otherwise be provided if full fair market value of the property were required.

Revocable License Agreement
The proposed terms of the Agreement are summarized below:

1. The initial term is 5 years, with one 5 -year extension option, for a total possible term of 10 years, unless terminated earlier as provided by the Agreement.

2. A license fee in the amount of $6,000 per calendar year shall be paid by the Licensee, with payments submitted to the City each month. The license fee shall be adjusted by the change in the Consumer Price Index (CPI) each year upon the anniversary of the effective date of the Agreement.

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3. The Licensee shall be responsible for obtaining the necessary permits and approvals from state and local agencies to operate the Market and will be responsible for ensuring each of the vendors has the necessary permits and approvals for their individual businesses, including obtaining a City business license, if required. The requirement for a City business license shall be waived as a hardship for certified producers pursuant to Section 5.04.025 of the Newport Beach Municipal Code (NBMC).

4. The Market may operate every Sunday from 8 a.m. to 2 p.m., with setup beginning no earlier than 7 a.m. and tear-down completed by 4 p.m., and the site returned to its original condition free of trash and debris.

5. Setup of the Market shall include placement of traffic control bollards and signage as may be required by the City’s Public Works and/or Fire Departments.

6. The Market operations must adhere to applicable federal, state and local laws and the operator shall obtain the necessary permits and approvals.

7. A Licensee representative shall be present onsite during each Market, from commencement of setup to completion of clean up.

8. Licensee shall provide certificates of insurance to the satisfaction of the City’s risk manager, naming the City as additional insured.

The Agreement has been reviewed by the City Attorney’s Office and has been approved as to form. The Licensee has reviewed and approved the terms of the Agreement.

FISCAL IMPACT:

Revenues collected pursuant to the proposed Agreement, $6,000 per year as adjusted annually by the change in CPI, will continue to be posted to the General Fund (01050505) accounts in the Community Development Department and will be included in future years’ budgets.

ENVIRONMENTAL REVIEW:

Staff recommends the City Council find this action is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the enviro nment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly.

NOTICING:

The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item).

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ATTACHMENTS:

Attachment A – Revocable License Agreement
Attachment B – Market Site Plan
Attachment C – City Council Policy F-7

Attachment A
Revocable License Agreement
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REVOCABLE LICENSE AGREEMEN~.___ ________ _

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 9th day of September, 2025 ("Effective Date"), by and between the City of Newport Beach, a California municipal corporation and charter city ("City"), and Sprouts of Promise Foundation, a California nonprofit organization ("Licensee"), and is made with reference to the-following:

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 the McFadden Square area at the Newport Pier on Sundays with certified and experienced organizations, vendors, participants and service providers (collectively, "Vendors").

E. In accordance with City Council Policy F-7, whenever 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 charging less than market value for this use provides an essential and unique service to the community that might not otherwise exist if full rent were required. Additionally, as the certified farmers' market may be located, in part, upon public tidelands and the ren_t is below fair market value, the City Council finds this use provides a public benefit to the people of California. This benefit comes from providing affordable access to healthy and sustainable food and greater access to the tidelands generally, making it a matter Sprouts of Promise Foundation Page 1
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of statewide benefit. Without the reduced rent, these beneficial uses of the grogerty-__ _ -------------c- m i g ht not provided were full market value of the property 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 ( 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 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

2.1 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.

2.2 Acceptable ancillary activities include:
i. Entertainment typical of a certified farmers' market, such as live music, face painter, balloon artist, seasonal characters (e.g., Santa Claus), etc. ii. 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).
iii. 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.).

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________ i_v._ Information tent to allow customers____and_\/_isito_r_a □_opportu □ ity_for_tbe __ Licensee to answer questions and take suggestions on potential new vendors.

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 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 and Vendors.

3.3 Licensee shall not allow any Vendor to participate in the Certified Farmers' Market until: (1) all appropriate permits, licenses and certifications are obtained; and (2) a copy of said permits are furnished to the Licensee (This includes, but is not limited to, a City business license and a tempbrary food facility permit from the Orange County Health Care Agency); and (3) a completed Liability Release Statement in accordance with Section 7.8 is received by License.

4. TERM
-

4.1 The term of this Agreement shall commence on October 1, 2025, and shall continue for a five (5) year term, 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 Five Hundred Dollars and 00/100 ($500.00) 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 the first day of the first month following the Effective Date . The License Fee shall be pro-rated in the event of a partial month's use of the License Area at the beginning or ~nd of the Term.

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 Sprouts of Promise Foundation Page A-3
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_____ i=n_te_re_s~t~i_n an amount egual to ten (10%LpercemLper_annuoLmLtb~u □ paid~amou □ t,-- 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 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 ltems,--1982-84=100 for All Urban Consumers (CPI-U)", for the Los Angeles-Long Beach-Anaheim 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 Fee$, 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. CONDITIONS OF LICENSE
Licensee shall comply with the following conditions prior to the commencement of use of the License Area:

6.1 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. Licensee shall require the same of Vendors.

6.2 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. •

6.3 The Licensee shall direct Vendors to park their vehicles in the nearby public parking lots, in compliance with posted parking rules and rates, as determined and approved by the City's Community Development Director.

6.4 An initial site plan and/or floor plan showing the layout of the Certified Farmers' Market sales areas, and such other information has been reviewed by the City's Community Development Department, Fire Department, and Public Works Department, and is attached in Exhibit A. Prior to implementing any modifications to the site plan during the Term, Licensee shall submit any proposed changes to the market layout to the City for review and approval by the City's Community Development Department, Fire Department, and Public Works Department and shall obtain any new or modified permits that may be necessary, at Licensee's sole cost and expense. The Fire Department's Sprouts of Promise Foundation Page A-4
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Conditions e>f Agproval are attached hereto as Exhibit B and incorporated herein b~ th~is~- reference.

6.5 Licensee shall follow the marketing plan and reporting requirements for the Certified Farmers' Market, and submit proof thereof to the City as further detailed in the Marketing Plan attached hereto as Exhibit C and incorporated herein by this reference.

7. CONDITIONS OF OPERATION
Licensee shall comply with the following conditions of operation during use of the License Area:

7.1 Licensee 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.

7.2 Notwithstanding the schedule outlined in Section 7.1, 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. 7 .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.

7.4 The storage of materials is expressly prohibited in the License Area beyond the approved hours of use of the License Area.

7.5 Licensee shall recruit and retain vendors for the certified farmers' market and verify that all individual vendors that are:
i. "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.
ii. Selling food or providing free food tastings for onsite consumption obtain a temporary food facility permit pursuant to Health and Safety Code Section 114380 et seq, if applicable.

7.6 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 Sprouts of Promise Foundation Page A-5
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producers to obtain a business license. All other vendors must comply_withlbaMunicJpa~---- ___ _ ------~--~ Code and obtain the necessary business licenses.

7.7 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.

7.8 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 D, 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.

7.9 Licensee shall annually, on or before March 1, provide to the City a current roster of vendors.

7.1 O No more than fifty (50) vendors shall display and/or sell food or products at the certified farmers' market and shall be in compliance with fire and health department regulations, including spacing, Vendor grouping requirements, and separation limits.

Entertainers, community booths and local artisans shall be included within the fifty (50) vendor limit. The Licensee may locate up to an additional ten (10) vendors on the pier as depicted on Exhibit A-4 during seasonal market events or other special events promoted by the Licensee. 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.
7 .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 7 .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.

7.13 Entertainers shall be limited to live musical or vocal acts, face painters, balloon artists, jugglers, and seasonal characters or similar acts. Licensee or entertainer shall eliminate or reduce the volume of entertainment acts or amplified sound if Sprouts of Promise Foundation Page A-6
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complaints are received and at the direction of a Police Officer, Code~ment~--------~-- 0 ff ice r, or Park Patrol Officer if sound disturbs persons of normal sensitivity. 7 .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 tobacco related products shall be prohibited unless associated with a law enforcement awareness program.

7.15 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.

7.16 All loading and unloading of merchandise, vendor booths and other related improvements shall take place within the License Area.

7.17 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).
7 .18 Licensee may permit vendors to provide tastings of their products to attendees, subject to applicable law. Tastings are limited to sample-sized portions and shall not constitute full servings for consumption on-site, except as otherwise authorized by law.

7.19 Licensee may allow no more than five (5) vendors to sell food items for on site consumption. At its sole and absolute discretion, the City reserves the right to require the Licensee to reduce the number of vendors selling food for onsite consumption and/or restrict on-site food consumption to tastings only, by providing the Licensee ten (10) calendar days' prior written notice.
7 .20 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.

7.21 Sale of alcoholic beverages is permitted at the certified farmers' market only in compliance with California Assembly Bill No. 2488, Chapter 98, Section 23399.4, and any other applicable state or local laws and regulations. All alcoholic beverage sales must be limited to retail sales for off-site consumption. On-site consumption of alcoholic beverages is prohibited, except as otherwise authorized by law for tastings, which must comply with the restrictions set forth under AB 2488 and related regulations. 7 .22 If the Certified Farmers' market is determined by the City's Chief of Police to be creating an undue impact to existing City police services, Licensee may be required to secure a private security guard or guards upon at least thirty (30) calendar days' prior written request by the City. Should Licensee fail to secure a private security guard or guards pursuant to said written notice, Licensee shall reimburse City for any costs related to City hiring a private security guard or guards. Should the Certified Farmers' Market create the need for additional police services including City traffic officer services, as Sprouts of Promise Foundation Page A-7
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_____ d_e_t_e_rm_·_1n_e_d ~x' the CitJ"s Chief of Police, the Licensee shall reimbursalrra£Uy~foLfbeBe __ additional police services.

7.23 Licensee shall comply with all traffic regulations established for the operation of the certified farmer's market by the City Traffic Engineer, which are attached as Exhibit E to this agreement and incorporated herein by this reference. Throughout the term of this License, City reserves the right to require Licensee, at Licensee's sole cost and expense, to provide additional traffic control measures deemed necessary by the City, in its sole and absolute discretion, to ensure public safety and/or to alleviate traffic impacts in the areas surrounding the License Area; in each case upon not less than five (5) calendar days' prior written notice to Licensee.

7.24 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.

7.25 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 State of California, the ordinances, and regulations of the County of Orange, and the Charter and Ordinances of the City of Newport Beach.

7.26 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.

8. TERMINATION OF LICENSE

8.1 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.

9. 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 Sprouts of Promise Foundation Page A-8
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Administrator or their authorized representative shall represent City in all matters --------- pertaining to this License.

10. INDEMNITY AND LIABILITY FOR DAMAGES

10.1 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 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.

10.2 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.

11. 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 F, and incorporated herein by reference.

12. 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.

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13. CONFLICT OF INTEREST
The Licensee or its employees may be subject to the provisions of the California Political Reform Act of 197 4 ("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. -

14. NOTICE

14.1 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: • Community Development Department
City of Newport Beach
Attn: Real Property Administrator
100 Civic Center Drive
Newport Beach, CA 92660

14.2 All notices, demands, requests or approvals from City to Licensee shall be addressed to Licensee at:

Sprouts of Promise Foundation
Attn: Mark Anderson
18282 Marbrise Abanita Drive
Murrieta, CA 92562
Phone: (310) 699-6134

15. STANDARD PROVISIONS

15.1 Recitals. City and Licensee acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement.

15.2 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.

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15.3 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.

15.4 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.

15.5 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.

15.6 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.

15. 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.

15.8 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.

15.9 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.

15.1 O 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.

15.11 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.

15.12 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.
[SIGNATURES ON NEXT PAGE]
Sprouts of Promise Foundation Page A-11
16-19
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below.

APPROVED AS TO FORM:

CITY ATTORNEY'S OFFICE
Date: ~lzer12. 2 r '

CITY OF NEWPORT BEACH,
a California municipal corporation
Date: ---------
By: r✓ rfl4-= Ge
Aaron ~arp <t, 1,,u t~
City Attorney At
By: ____ _________ _
Grace K. Leung
City Manager
ATTEST:

Date: ------- -
LICENSEE: Sprouts of Promise
Foundation , a California nonprofit
organization
Date: ----------
By: _____________ _ By: __________ ___ _
Molly Perry
Interim City Clerk
Attachments : Exhibit A:

Exhibit B:

Exhibit C:

Exhibit D:

Exhibit E:

Exhibit F:

Sprouts of Promise Foundation
Mark Anderson
President
Depiction of License Area and Site Plan
Fire Department Conditions of Approval
Marketing Plan
Vendor Liability Release Statement
Traffic Regulations
Insurance Requirements

Page 12 ends

16-20

EXHIBIT A

LICENSE AREA
Sprouts of Promise Foundation Page A-1
16-21
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16-22
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16-23
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Disclaimer: Every reasonable effort has been made to assure the accuracy of the data provided, however, The City of
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4/9/2015
16-25
Pedestrian and Bike
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Imagery: 2009-2013 photos provided by Eagle
Imaging www.eagleaerial.com
4/9/2015
16-26

EXHIBIT B

FIRE DEPARTMENT CONDITIONS OF APPROVAL

1. Licensee shall obtain any necessary Fire Department permits that may be required based on the market layout shown on the Site Plan. Prior to implementing any modifications to the Site Plan, Licensee shall obtain any new or updated permits that may be required by the Fire Department.

2. Do not block entrances or exits from any building. Do not block Fire Department access-to any fire suppression equipment.

3. Emergency access must be maintained at all times during the Certified Farmers' Market, including the set-up period before and the clean-up period after the event.

4. Obey all City, County and State regulations. Comply with the lawful orders of Police and Fire personnel, or other government officials.

5. Licensee is responsible for ensuring all tents/canopies/shade structures or other similar equipment being used at the event are properly secured to the ground to ensure the safety of event participants and the public.

6. Inspections required on all tent permits. If tent permit is required, inspection fees apply.

7. Bollards to be installed per permitted plans.

8. Do not exceed posted occupant load inside buildings.

9. Visible and mounted fire extinguishers with current service tags.

10. No smoking signs are required.

11. Illuminated exit signs.

12. Emergency lighting.

13. Exit doors are not to be blocked and are to remain accessible as exits when the tent is occupied.

14. All interior decorative fabrics or materials shall be flame resistant. Provide certificates of flame resistance.

15. Bonding of chairs (if used) in groups of three or more is required when loose seats, folding chairs, or similar seating is not fixed to the floor, the occupant load is 200 or more, and tables are not provided.

Sprouts of Promise Foundation Page B-1
16-27

16.Cooking and heating equipment shall not be located within 11Lfe~Lnf exit~n combustible materials.

17.Outdoor cooking that produces sparks or grease-laden vapors shall not be performed within 20 feet from a temporary membrane structure, tent, or canopy.

18. LPG containers shall be located outside and be adequately protected and secured.

If LPG used, permit must be obtained from Fire Department.

19. Open flame or other devices emitting flame are not permitted inside or within 20 feet of the tent, canopy, or temporary membrane structure.

If a pre-event inspection or inspector stand-by services are required, fees shall be charged accordingly.

Sprouts of Promise Foundation Page B-2
16-28

EXHIBIT C

MARKETING PLAN
Sprouts of Promise Foundation Page C-1
16-29

EXHIBITC

MARKETING PLAN
• Maintain an attractive website with general market information (market hours, location, vendor recruitment info, e-newsletter sign-up, etc.). • Monthly E-Newsletter distribution (celebrate seasonal produce, highlights market vendors, and promotes community happenings).
• Collaborate with community organizations to provide opportunities for cross promotion and help us engage new audiences.
• Market Rewards (eg., free raffles, loyalty cards, etc.). • Social Media: engage in relevant platforms for our markets (currently focused on lnstagram and Facebook). Promote vendor & customer interaction. • Open cross-collaborations with the City.
16-30

EXHIBIT D

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't
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. 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, 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, Sprouts of Promise Foundation Page D-1
16-31
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, 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. 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
Sprouts of Promise Foundation
Signature
Printed Name
Page D-2
16-32

EXHIBIT E

TRAFFIC REGULATIONS

1. Prior to implementing any modifications to the Site Plan, Licensee shall submit the changes to the market layout to the Public Works Department for review and approval.

2. All vehicles shall be lawfully parked. No fire lane exemption.

3. No exclusive use of street, alleys, or sidewalks, except in the License Area pursuant to the terms of this Agreement. .

4. No exclusive use of public parking areas.

5. No activities permitted in any portion of public street, sidewalk, or alley, except in the License Area pursuant to the terms of this Agreement.

6. No posting of promotional signs permitted on a portion of public property, including trees, utility poles, street signs unless otherwise approved by relevant City staff.

7. Activities shall not create a pedestrian or traffic hazard. Prevent crowds from standing in streets and from blocking sidewalks.

8. Complete clean-up of the License Area is the responsibility of the Licensee.

9. All directional signage must be set-up on the day of the Certified Farmer's Market and removed immediately following the event, pursuant to the terms of Section 7 of this Agreement.

10. Do not block entrances or exits from any building. Do not block Fire Department access to any fire suppression equipment.

11. Licensee shall ensure all traffic control measures are installed no later than one hour before the start of the Certified Farmer's Market and removed immediately following the event, pursuant to the terms of Section 7 of this Agreement.

Sprouts of Promise Foundation Page E-1
16-33

1. 2.

3. EXHIBIT F

INSURANCE REQUIREMENTS
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.

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:

Coverage Requirements.

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.

Licensee shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its City Council, boards and commissions, officers, agents, volunteers, and employees.

General Liability Insurance. Licensee shall maintain commercial general liability insurance, and if necessary excess/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 bodily injury, property damage, product liability, 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. If required, the policy shall be endorsed to include affirmative coverage for Sexual Abuse/Molestation and corporal punishment, or a separate policy shall be obtained with a limit of not less than one million dollars ($1,000,000) per occurrence and three million dollars ($3,000,000) general aggregate.

Sprouts of Promise Foundation Page F-1
16-34

4. D.

Automobile Liability Insurance. Licensee sbaJLmaintain~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.

Professional Liability Insurance. If determined by the City's Chief of Police for Licensee to secure a private security guard or guards, Licensee shall require and verify that contractor(s) maintain professional liability insurance with limit of-not less than two million -dollars ($2,000,000fper oc~currence and four million dollars ($4,000,000) in the aggregate. The policy shall include coverage for assault and battery, abuse and molestation, care custody and control, and false arrest.

Excess/Umbrella Liability Insurance. If any excess or umbrella liability policies are used to meet the limits of liability required by this contract, then said policies shall be "following form" of the underlying policy coverage, terms, conditions, and provisions and shall meet all of the insurance requirements stated in this contract, including, but not limited to, the additional insured and primary & non-contributory insurance requirements stated herein. No insurance policies maintained by the City, whether primary or excess, and which also apply to a loss covered hereunder, shall be called upon to contribute to a loss until the Contractor's primary and excess/umbrella liability policies are exhausted.

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 City Council, boards and commissions, officers, agents, volunteers, and employees 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, its City Council, boards and commissions, officials, agents, volunteers, and employees shall be included as insureds under such policies.

Sprouts of Promise Foundation Page F-2
16-35
C. Primary and Non Contributory. All liability coverage shall apply on a primary _______ ____::_:_ _ _____.;.b='a"""s"::""is"""'"'a~n='d"""s~h--'-a~I 1"'"'"n-'--o"""t """rea..:..q;:.;.;u"""i r...;;.;.e,;;-ac-,"'o~n-=tr~i b:_:__u~tio:_:__:_n:___:_:_;:fr.,_o--=-m-=-a_:_:n::_:_y--=;i"'---ns-=-u--=-r--=-a::_:_:nc_:_e:_:_,o:_,_r~s,_e~lf~-i~n_o_:su_:_r_:a_:n_:_:_ce.,_____ -------,

5. D.
maintained by City.

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:

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.

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.

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.

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.

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.

City Remedies for Non-Compliance. If Licensee or any subcontractor fails to provide and maintain insurance as required herein, then City shall have Sprouts of Promise Foundation Page F-2
16-36
the right but not the obligation, to purchase such insurance, to terminate this Agreement, or to suspendLicensee's nght to proceea until proper evia-e-nc_e __ _ of insurance is provided.

G. Timely Notice of Claims. Licensee shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Licensee's performance under this License, 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'sJnsurance. License_e__shall also pmc_ureand .. maintain,aUts 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. Vendor Insurance. The Licensee shall require and verify that all Vendors maintain insurance meeting all the requirements stated herein, excluding professional liability. Vendors shall maintain commercial general liability covering bodily injury, property damage, product liability, and personal and advertising injury, with limits of not less than one million dollars ($1,000,000) per occurrence and in the aggregate, or such other limits as the City may reasonably require. A copy of the insurance policy shall be provided to City upon request. Vendors shall 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 F-2

Attachment B
Market Site Plan
16-37
Grass
Grass
Restrooms
5x5 Info Booth
10x10 Non Hot Food Booth
10x10 Hot Food Booth
Fire Extinguisher
ADA Ramp
T rees
Fire Hydrant
20lb propane tank
Local Businesses
Newport beach farmers’ Market - McFadden Plaza - Sundays Beach
Pier
Exhibit A-1
16-38
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disclaim any and all responsibility from or relating to any results obtained in its use.

Disclaimer:
4/9/2015
0 2,0001,000
Newport
Beach
GIS
16-39
0 Feet
Imagery: 2009-2013 photos provided by Eagle
Imaging www.eagleaerial.com
Every reasonable effort has been made to assure the
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Newport Beach and its employees and agents
disclaim any and all responsibility from or relating to any results obtained in its use.

Disclaimer:
4/9/2015
0 400200
Newport
Beach
GIS
16-40
0 Feet
Imagery: 2009-2013 photos provided by Eagle
Imaging www.eagleaerial.com
Every reasonable effort has been made to assure the
accuracy of the data provided, however, The City of
Newport Beach and its employees and agents
disclaim any and all responsibility from or relating to any results obtained in its use.

Disclaimer:
4/9/2015
0 200100
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Beach
GIS
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Newport Beach and its employees and agents
disclaim any and all responsibility from or relating to any results obtained in its use.

Disclaimer:
4/9/2015
0 8040
Newport
Beach
GIS
16-42
0 Attachment C
City Council Policy F-7
16-43
F- 7

1 INCOME AND OTHER PROPERTY

Unencumbered fee value of income property is substantial.

The policy of the City Council is that income and other property be held and managed in accordance with the following:

16-44
F- 7