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HomeMy WebLinkAboutLicense AgreementLICENSE AGREEMENT THIS LICENSE AGREEMENT (this "Agreement"), made and entered into as of January 25. 2011 (the "Effective Date"), by and between San Diego Gas & Electric Company (SDG&E), a California corporation, hereinafter called "Licensor" and the City of National City, a municipal corporation, hereinafter called "Licensee". Licensor and Licensee are sometimes referred to in this Agreement individually as a "Party" and collectively as the "Parties". RECITALS A. Licensor owns that certain parcel of real property commonly described as the SDG&E electric transmission fee right of way identified as SBE #141-37-58F, Parcel 3 east of 32nd Street and Marina Way and south to the north side of the Sweetwater River in the City of National City; San Diego County, California, and more particularly described in Exhibit A attached hereto and incorporated by this reference (the "Real Property"). B. Licensee desires to use the portion of the Real Property depicted in Exhibit B attached hereto and incorporated by this reference (the "Licensed Premises") for the following purpose: a public non -vehicular pathway for pedestrians and bicyclists (the "Permitted Purpose"). C. Licensee has requested from Licensor, and Licensor has agreed to grant to Licensee a revocable, non-exclusive license (the "License") to use the Licensed Premises solely for the Permitted Purpose (and for no other purpose) on the terms and conditions set forth in this Agreement. D. Licensor is willing to enter into this Agreement in reliance upon California Civil Code Section 846, which generally protects owners of real property from civil liability from those individuals who have entered their property for recreational purposes without payment of any consideration. NOW. THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Licensor and Licensee hereby agree as follows: 1. Grant of License: Licensor hereby grants to Licensee the License to use the Licensed Premises solely for the Permitted Purpose (and for no other purpose) upon the terms and conditions set forth in this Agreement. 76424 1 2. Term of License: The term of the License shall commence on the Effective Date and expire one (1) year thereafter, unless the License is earlier revoked or this Agreement is earlier terminated as set forth below. 3. Revocability of License: (a) The License granted under this Agreement is revocable at will. (b) Either Party may terminate the License at any time, for any reason or no reason, with or without cause, by delivering written notice to the other Party in accordance with Paragraph 16 below, setting forth the effective date of such termination. Upon delivery of such written notice, the License shall immediately and automatically terminate without the necessity for any further action by either Party. 4. Non -Exclusivity of License: (a) The License granted under this Agreement is non-exclusive. (b) Licensor hereby reserves the right, during the term of the License, without any requirement of notice to or consent of Licensee, to enter and use (and permit Licensor's affiliates, employees, agents, representatives, tenants, invitees, licensees, permittees, contractors and/or subcontractors (collectively, the "Licensor Parties") to enter and use), the Licensed Premises for any purpose, including but not limited to the installation, construction, use, maintenance, repair, alteration. relocation, improvement and removal of utility facilities, appurtenances and equipment (collectively, "Utility Facilities") at such locations and at such elevations as Licensor may now or in the future determine. (c) Licensor hereby reserves the right, during the term of the License, without any requirement of notice to or consent of Licensee, to (i) grant, sell, transfer, option, convey or dispose of all or any portion of or interest in the Real Property, including but not limited to the Licensed Premises, and (ii) grant any easement, servitude, restriction, mortgage, deed of trust, security instrument, lease, license, encumbrance or lien affecting all or any portion of or interest in the Real Property, including but not limited to the Licensed Premises. 5. Condition of Licensed Premises: 76424 2 (a) Licensee hereby accepts the Licensed Premises "as is, where is" with all faults. (b) Licensee hereby acknowledges that none of Licensor, the Licensor Parties or any other party purporting to act on their behalf has made any representation or warranty whatsoever regarding the Licensed Premises, and Licensor hereby disclaims all representations and warranties (whether express or implied) in respect of the Licensed Premises, including but not limited to any implied warranty of habitability or suitability of the Licensed Premises for a particular purpose. Licensee hereby acknowledges that Licensee has conducted its own due diligence in respect of the Licensed Premises and has independently (and not in reliance on any representations or warranties of Licensor, the Licensor Parties or any other party purporting to act on their behalf) determined to acquire the License to use the Licensed Premises for the Permitted Purpose. (c) Licensee hereby assumes any and all risks arising from the physical condition of the Licensed Premises, including but not limited to the risk that patent or latent defects and/or hazardous conditions may now or hereafter exist within the Licensed Premises. Licensor hereby disclaims any and all responsibility or liability for any injury, loss, liability, claim, cause or action, damage, cost, expense, fine or penalty, including but not limited to in-house and outside attorney's fees. witness fees and consultant fees (collectively, "Claims"), that Licensee or its affiliates, employees, agents, representatives, invitees, licensees, permittees, contractors, subcontractors, successors and/or assigns (collectively, the "Licensee Parties") may suffer or incur as a result of the physical condition of the Licensed Premises, including but not limited to the existence of any patent or latent defects and/or hazardous conditions. (d) Without limiting the generality of the foregoing Paragraph 5, Licensee expressly acknowledges that high -voltage electric Utility Facilities and/or high-pressure oil and gas Utility Facilities may now or hereafter exist within or near the Licensed Premises. Licensee hereby assumes any and all risks arising from the presence or existence of any high -voltage electric Utility Facilities and/or high-pressure oil and gas Utility Facilities within or near the Licensed Premises. Licensor hereby disclaims any and all responsibility or liability for any Claims that Licensee or the Licensee Parties may suffer or incur as a result of the presence or existence of any high -voltage electric Utility Facilities and/or high-pressure oil and gas Utility Facilities within or near the Licensed Premises. 6. Access to Licensed Premises: 76424 3 Licensee shall have the right of ingress to and egress from the Licensed Premises by any practical route in, upon, over and across the adjacent Real Property (the "Access Rights"), provided that Licensee shall (a) comply with all Applicable Laws in exercising the Access Rights, and (b) exercise the Access Rights in a manner designed to minimize any interference with the activities of Licensor and/or the Licensor Parties in respect of the Licensed Premises and/or the Real Property. 7. Use of Licensed Premises: (a) Licensee shall use (and shall cause the Licensee Parties to use) the Licensed Premises solely for the Permitted Purpose. as described in Recital B above, and for no other purpose. (b) Licensee shall obtain all permits and approvals required by all federal, state, county, municipal or other local governmental authorities, bureaus or agencies (each, a "Governmental Authority") in connection with any activity conducted by Licensee and/or any Licensee Party in respect of the License or the Licensed Premises (collectively, the "Permits and Approvals"). At all times during the term of the License, Licensee shall comply (and shall cause the Licensee Parties to comply) with (i) the terms and conditions of all Permits and Approvals, and (ii) all federal, state, county, municipal and other local laws, statutes, codes, ordinances, rules, regulations, directives, policies, decisions, guidelines and orders now or hereafter applicable to Licensee, the Licensed Premises or the Permitted Purpose (collectively, as the same may be amended from time to time, "Applicable Laws"). Licensee shall promptly notify Licensor if Licensee or any of the Licensee Parties receive any notice of any violation of the Permits and Approvals or any Applicable Law. Licensee shall cure any violation of the Permits and Approvals or any Applicable Law within ten (10) days after receiving notice of such violation, provided that if such violation is not capable of being cured within ten (10) days, Licensee shall commence to cure such violation with ten (10) days and shall diligently prosecute such cure to completion. (c) At all times during the term of the License, Licensee shall conduct (and shall cause the Licensee Parties to conduct) all activities in respect of the License and the Licensed Premises in a manner designed to (i) minimize any interference with the activities of Licensor and/or the Licensor Parties in respect of the Licensed Premises and/or the Real Property, and (ii) guard against soil erosion, explosions, fires and other physical damage within the Licensed Premises and/or the Real Property. 76424 4 (d) None of Licensee or the Licensee Parties shall cause or permit (i) any activity to occur in respect of the License or the Licensed Premises that constitutes waste or public or private nuisance, (ii) any explosive or highly flammable substances or materials to be stored, released, generated, placed, handled or used within the Licensed Premises and/or the Real Property, (iii) any trailers or recreational vehicles to be parked within the Licensed Premises, or (iv) any party to live or reside within the Licensed Premises. (e) Without the prior written consent of Licensor, none of Licensee or the Licensee Parties shall cause or permit (i) any buildings, structures or other improvements to be constructed, erected or installed within the Licensed Premises, (ii) any heavy machinery or equipment to be operated or stored within the Licensed Premises, (iii) the ground surface elevation of the Licensed Premises to be changed in any manner, or (iv) the ground within the Licensed Premises to be penetrated in any manner to a depth in excess of eighteen (18) inches. (f) Licensee shall keep (and shall cause the Licensee Parties to keep) the Licensed Premises free from and shall promptly discharge any liens arising from any work performed, material furnished, obligations incurred or any other thing done or permitted by Licensee and/or the Licensee Parties in respect of the License or the Licensed Premises; provided that Licensee (or a Licensee Party) may dispute any such lien so long as Licensee (or such Licensee Party) first posts a bond for such lien in the amount required under and otherwise in accordance with all Applicable Law. (g) If Licensee and/or any Licensee Party fails to comply with or defaults under any obligation set forth in this Paragraph 7, then Licensor may (but shall not be obligated to) cure such failure at Licensee's sole expense, and Licensee shall, upon demand, pay to Licensor all costs incurred by Licensor and/or any Licensor Party in curing such failure within thirty (30) days of such demand. 8. Maintenance of Licensed Premises: (a) At all times during the term of the License, Licensee shall, at its sole expense, maintain the Licensed Premises in good condition, working order and repair. Without limiting the generality of the foregoing sentence, Licensee shall keep (and shall cause the Licensee Parties to keep) the Licensed Premises clean and free from any trash, rubbish, debris, waste, weeds, brush and/or explosive or highly flammable materials. (b) During the term of the License, none of Licensor or the Licensor Parties shall have any obligation to (i) maintain, improve, alter or repair the Licensed Premises, or (ii) furnish 76424 5 any utilities to the Licensed Premises, including but not limited to electricity, gas, water or telephone service. Licensee shall pay the cost of any such utilities furnished to the Licensed Premises. (c) If Licensee and/or any Licensee Party fails to comply with or defaults under any obligation set forth in this Paragraph 8, then Licensor may (but shall not be obligated to) cure such failure at Licensee's sole expense, and Licensee shall. upon demand, pay to Licensor all costs incurred by Licensor and/or any Licensor Party in curing such failure within thirty (30) days of such demand. 9. Improvement of Licensed Premises: (a) Without the prior written consent of Licensor, none of Licensee or the Licensee Parties shall cause or permit any alteration, modification. building, structure, landscaping or other improvement (each, an "Alteration") to be made. constructed or installed within the Licensed Premises. (b) If Licensor grants its prior written consent to any Alteration, none of Licensee or the Licensee Parties shall cause or permit work to begin with respect to such Alteration unless and until Licensor has reviewed and granted written approval of all plans and specifications for such Alteration. Upon Licensor's written approval, such Alteration shall be deemed to be a "Permitted Alteration". (c) Any work performed in connection with any Permitted Alteration shall be performed in accordance with all of the terms and conditions contained in this Agreement, including but not limited to the terms and conditions set forth in Paragraph 7 above. 10. Environmental Compliance: (a) The term "Environmental Law" shall mean any Applicable Law pertaining to worker or workplace safety, environmental conditions, environmental quality or policy, health and/or safety issues or concerns, the regulations promulgated pursuant thereto and the conditions of any permits, judgments, agreements or authorizations issued pursuant thereto, including but not limited to (i) the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 43 U.S.C. §9601 et seq., (ii) the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. §6901 et seq., (iii) the Toxic Substances Control Act of 1976 (TSCA), 15 U.S.C. §2601 et seq., (iv) the Hazardous Materials Transportation Act, 49 U.S.C. §1801 et seq., (v) the Clean Water Act, 33 U.S.C. §1251, et seq., (vi) the Porter Cologne Water 76424 6 Quality Act, California Water Code §13000 et seq., and (vii) the Safe Drinking Water and Toxic Enforcement Act of 1986. California Health and Safety Code §25249.5 et seq., (viii) The Carpenter -Presley -Tanner Hazardous Substance Account Act (California Health & Safety Code, §25300 et seq., (ix) The California Hazardous Waste Control Law (California Health & Safety Code, § 15200 et seq., (x) The Occupational Safety and Health Act (29 U.S.C. §651 et seq.), and (xi) the California Occupational Safety and Health Act (California Labor Code §6300 et seq.). (b) The term "Hazardous Substance" shall mean any chemical, substance, material, object, condition, waste or combination thereof that is or may be hazardous to human health or safety or the environment due to its radioactivity, ignitability, corrosivity, reactivity, toxicity or other properties or effects, including but not limited to oil or petroleum and petroleum products, asbestos, radon, polychlorinated biphenyls (PCBs), urea formaldehyde insulation, lead paints and coatings, and all of those chemicals, substances, materials, objects, conditions, wastes or combinations thereof that are now or in the future are listed, defined or regulated in any manner by any Environmental Law. (c) The term "Environmental Activity" shall mean the use, generation, treatment, storage, handling, release or threatened release of any Hazardous Substance in, on, under or about the Licensed Premises or the underlying ground water or the transportation or migration of any Hazardous Substance to or from the Licensed Premises. (d) At all times during the term of the License, Licensee shall comply (and shall cause the Licensee Parties to comply) with all Environmental Laws. Licensee and/or the Licensee Parties may conduct any Environmental Activity within the Licensed Premises only upon Licensor's prior written consent, which may be granted or withheld in Licensor's sole discretion, and in strict compliance with all Environmental Laws and all other terms and conditions of this Agreement. In seeking Licensor's prior written consent to any Environmental Activity, Licensee shall identify the specific Hazardous Substance that Licensee and/or the Licensee Parties propose to use in connection with such Environmental Activity. (e) Licensee shall (and shall cause the Licensee Parties to) deliver written notice to Licensor in accordance with Paragraph 16 below within twenty-four (24) hours of receiving actual notice of any of the following: (i) Any proceeding or inquiry by any Governmental Authority with respect to (A) the presence of any Hazardous Substance within the Licensed Premises, (B) the migration of any Hazardous Substance to or from the Licensed Premises, or (C) any Environmental Activity. 76424 7 (ii) Any threatened or actual claim by any third party against any of Licensor, the Licensor Parties, Licensee, the Licensee Parties or the Licensed Premises relating to or resulting from (A) the presence of any Hazardous Substance within the Licensed Premises, (B) the migration of any Hazardous Substance to or from the Licensed Premises, or (C) any Environmental Activity. (iii) The discovery of any occurrence or condition on the Real Property or any other real property in the vicinity of the Licensed Premises that has caused or could cause the Licensed Premises to be contaminated with a Hazardous Substance or subject to any ownership, occupancy, transferability or use restrictions under any Environmental Law. (f) At any time during the term of the License, Licensor may, after providing prior written notice to Licensee, retain a registered environmental consultant to conduct an investigation of the Licensed Premises (an "Environmental Assessment") for Hazardous Substances contamination within or beneath the Licensed Premises or the underlying ground water. Licensee shall (and shall cause the Licensee Parties to) cooperate with Licensor and its consultant regarding any Environmental Assessment. Licensor will provide Licensee with a copy of any such Environmental Assessment to the extent the same, to the reasonable belief of Licensor, pertains to the Environmental Activities of Licensee or the Licensee Parties. (g) If any Environmental Activity performed by Licensee or the Licensee Parties results in any contamination of the Licensed Premises or the soil or ground water under the Licensed Premises, Licensee shall (and shall cause the Licensee Parties to) promptly take all actions, at Licensee's sole expense, to mitigate or remediate the affected portion of the Licensed Premises and/or the soil or ground water in accordance with all Environmental Laws and/or other Governmental Authority requirements. Licensor shall have the right (but shall not be obligated) to approve any and all contractors hired by Licensee or the Licensee Parties to perform such mitigation or remediation work. (h) Upon termination of the License, prior to surrendering possession of the Licensed Premises, Licensee shall (and shall cause the Licensee Parties to) remove any personal property, equipment, appurtenances, fixtures, facilities and/or storage devices or vessels that are contaminated by or contain Hazardous Substances or are used in connection with any Environmental Activity. (i) If Licensee and/or any Licensee Party fails to comply with or defaults under any obligation set forth in this Paragraph 10, then Licensor may (but shall not be obligated to) cure 76424 8 such failure at Licensee's sole expense, and Licensee shall, upon demand, pay to Licensor all costs incurred by Licensor and/or any Licensor Party in curing such failure within thirty (30) days of such demand. (j) The obligations set forth in this Paragraph 10 are independent of any other obligations contained in this Agreement and shall survive the expiration or earlier termination of the License. 11. Insurance: (a) At all times during the term of the License, Licensee shall maintain in effect the following insurance coverages in amounts not less than the following minimum limits: (i) workers' compensation insurance and employer's liability insurance in accordance with statutory requirements and limits, (ii) comprehensive general liability insurance, including but not limited to products -completed operations and contractual liability coverage, with limits of not less than $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate for bodily injury and property damage, and (iii) automobile liability insurance, with limits of not less than $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate for bodily injury and property damage. (b) On or prior to the Effective Date and at any time during the term of the License upon Licensor's request, Licensee shall provide insurance policies or certificates evidencing the insurance coverages required to be maintained by Licensee under Paragraph 11(a) above, and such policies or certificates shall (i) name Licensor as an additional insured, (ii) contain a severability of interest or cross liability clause, (iii) state that such insurance coverage is primary for all purposes, and (iv) state that such insurance coverage may not be modified, amended or cancelled except upon not less than thirty (30) days written notice to Licensee. (c) Licensor may periodically review the insurance coverages required under this Paragraph I 1 and may increase the limits of such insurance coverages as necessary to meet the limits then required by Licensor for similar licenses of this type, and Licensee hereby agrees to increase the insurance coverages maintained by Licensee accordingly within ten (10) days after written demand by Licensor. (d) The obligation to maintain the insurance coverages set forth in this Paragraph 11 shall not in any way limit or diminish any of Licensee's other obligations, responsibilities or liabilities under this Agreement. 76424 9 12. Indemnification: (a) Licensee hereby agrees to indemnify, defend and hold harmless Licensor, the Licensor Parties, and their respective officers, directors, employees, shareholders, partners and affiliates (collectively, the "Licensor Indemnitees") from and against any and all Claims arising or resulting from (i) Licensee's or any Licensee Party's use, maintenance, presence on or occupation of the Real Property and/or the Licensed Premises, (ii) the presence of Licensee's or any Licensee Party's automobiles within the Real Property and/or the Licensed Premises, (iii) the exercise of the rights granted to Licensee and/or the Licensee Parties under this Agreement, including but not limited to the performance of the Permitted Purpose, (iv) any violation by Licensee and/or any Licensee Party of the terms and conditions of this Agreement, (v) any prescriptive rights in the Real Property and/or the Licensed Premises asserted by any party by virtue of the License and/or any holding over on or failure to vacate or surrender the Licensed Premises after the expiration or earlier termination of the License, and/or (vi) any other act or omission of Licensee and/or any Licensee Party. (b) Licensee shall reimburse any Claim incurred by any Licensor Indemnitee within thirty (30) days after written demand by such Licensee Indemnitee. (c) Upon demand by any Licensor Indemnitee, Licensee shall defend, at Licensee's sole expense, with counsel reasonably acceptable to such Licensor Indemnitee, any Claims brought against such Licensor Indemnitee with respect to which Licensee is obligated to defend the Licensee Indemnitee under Paragraph 12(a) above. In the event of that any such Claim is settled by Licensee, such settlement shall include a dismissal with prejudice of the Claim and an explicit and unconditional release (including a waiver of Section 1542 of the California Civil Code) from the party bringing such Claim. (d) The obligations of Licensee under this Paragraph 12 shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the Licensee under any worker's compensation acts, disability benefit acts or other employee benefit acts. (e) Nothing contained herein shall operate as a limitation on the right of Licensor to bring an action for damages against any third party, including indirect, special, or consequential damages, based on any acts or omissions of such third party. Licensee shall assign such rights of claims, execute such documents, and do whatever else may be reasonably necessary to enable Licensor to pursue any such action against such third party. 76424 10 (f) The obligations of Licensee under this Paragraph 12 shall survive the expiration or earlier termination of the License. 13. Release: (a) Licensee, on behalf of itself and the Licensee Parties, hereby releases, waives and forever discharges Licensor and the Licensor Parties from any and all past, present, or future Claims of any nature whatsoever, known or unknown, arising from, related to or regarding the presence on or occupation of the Licensed Premises by Licensee and/or the Licensee Parties or any other exercise of the rights granted to Licensee and/or the Licensee Parties under this Agreement. (b) The Licensor Parties shall be third -party beneficiaries of the release set forth in this Paragraph 13 (the "Release"). (c) Licensee, on behalf of itself and the Licensee Parties, expressly and voluntarily waives and relinquishes all rights and benefits under Section 1542 of the California Civil Code if in any way applicable to the Release. Section 1542 of the California Civil Code provides as follows: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. Licensee acknowledges that it has received the advice of IegaI counsel with respect to the Section 1542 waiver and understands the terms of such waiver. Licensee hereby acknowledges it is aware that Licensee and/or the Licensee Parties may hereafter discover facts different from or in addition to those which Licensee and/or the Licensee Parties now know or believe to be true with respect to the Release, and Licensee agrees that the Release shall be and remain in effect as a full and complete mutual release notwithstanding any such different or additional facts. Licensee Initials: 76424 11 14. Condemnation: (a) If all or any portion of the Licensed Premises is taken by any public or quasi - public authority under the power of condemnation or eminent domain, the License shall terminate as to that portion so taken on the date that such taking becomes final (the "Condemnation Date"). With respect to the remaining portion of the Licensed Premises, Licensee may terminate the License as of the Condemnation Date by delivering written notice to Licensor in accordance with Paragraph 3(b) above and Paragraph 16 below on or before the Condemnation Date, provided that if Licensee fails to deliver such written notice to Licensor on or before the Condemnation Date, then the License shall continue in full force and effect in accordance with this Agreement. (b) Any and all awards or damages granted in connection with such taking (the "Condemnation Award") shall belong to and be the sole property of Licensor; provided, that if Licensee is not allowed to remove any personal property, equipment, appurtenances, fixtures or facilities (the "Personal Property") from the portion of the Licensed Premises taken and Licensee would otherwise be permitted to remove such Personal Property under this Agreement, then Licensee shall receive that portion of the Condemnation Award paid to Licensor that is attributable to such Personal Property so retained, as mutually agreed to by Licensor and Licensee. 15. Surrender of Licensed Premises: (a) Upon the expiration or earlier termination of the License, Licensee shall promptly vacate and surrender the Licensed Premises to Licensor and shall deliver the Licensed Premises to Licensor clean and free from any trash. rubbish, debris, waste, weeds, brush, explosive or highly flammable materials and/or Hazardous Materials and otherwise in a condition satisfactory to Licensor. (b) Upon delivery of written demand by Licensor to Licensee in accordance with Paragraph 16 below, Licensee shall, within ten (10) days after delivery of such written notice, remove from the Licensed Premises all buildings, structures, improvements and Personal Property constructed, installed, placed or stored on the Licensed Premises by Licensee or any Licensee Party and restore the Licensed Premises to the condition in which the Licensed Premises were in immediately prior to the Effective Date. (c) Upon the expiration or earlier termination of the License, if there are growing crops or tree stock within the Licensed Premises in which Licensee and/or any Licensee Party 76424 12 has an interest, Licensee and such Licensee Party shaII nonetheless vacate the Licensed Premises and Licensor shall have the right to retain or dispose of said crops or stocks as Licensor determines in its sole discretion, without compensation, remuneration or liability to Licensee or any Licensee Party. (d) If Licensee fails to comply with any of the obligations set forth in this Paragraph 15, Licensor may (but shall not be obligated to) cure such failure at Licensee's sole expense, and Licensee shall, upon demand, pay to Licensor all costs incurred by Licensor in performing such obligations, including but not limited to all labor costs, overhead expenses, rental of storage space, equipment rental, materials and machinery fuel costs within thirty (30) days of such demand. (e) If Licensee and/or any Licensee Party fails to promptly vacate and surrender the Licensed Premises after the expiration or earlier termination of the License, then, in addition to any other rights or remedies that Licensor may have, Licensee and/or such Licensee Party shall pay to Licensor an amount equal to five hundred percent (500%) of the License Fee for the period that Licensee and/or such Licensee Party continue to occupy the Licensed Premises. 16. Notices: (a) All notices to be given under this Agreement shall be in writing, addressed to the recipient Party at the address listed in Paragraph 16(b) below, and: (i) Sent by certified mail, return receipt requested, in which case notice shall be deemed delivered three (3) business days after deposit, postage prepaid in the United States mail; (ii) Sent by a nationally recognized overnight courier, in which case notice shall be deemed delivered one (1) business day after deposit with such overnight courier; or (ii) Sent by telecopy or similar means, provided that a copy of the notice is also sent by certified mail, in which case notice shall be deemed delivered on transmittal by telecopier or other similar means provided that a transmission report is generated reflecting the accurate transmission of the notices. (b) Each Party's address for notices under this Agreement is set forth below: (i) If to Licensor: 76424 13 San Diego Gas & Electric Company 8335 Century Park Court, CP11D San Diego, CA 92123 Attn: Manager, Real Estate Fax: 858-637-3766 (ii) If to Licensee: City of National City Development Services Department Engineering Division 1243 National City Boulevard National City, California 91950 Attn: Director, Development Services Fax: 619-336-4397 17. Disclosure Regarding Electric and Magnetic Fields: Licensor hereby notifies Licensee and the Licensee Parties that, if electric Utility Facilities exist within or near the Licensed Premises, then electric and magnetic fields ("EMF') may be present. The medical and scientific communities have been unable to determine whether EMF causes health effects or establish any standard or level of exposure that is known to be either safe or harmful. Many researchers believe that if there is a risk of adverse health effects from EMF, the risk is probably low but warrants further investigation. Licensor shall provide additional information regarding EMF to Licensee or the Licensee Parties upon written request. 28. Assignment: (a) Licensor may assign this Agreement at any time to any party without any requirement of notice to or consent of Licensee or any Licensee Party. (b) Licensee may not assign this Agreement at any time to any party without the prior written consent of Licensor. Licensee shall remain primarily liable for all obligations of "Licensee" under this Agreement, regardless of any assignment of this Agreement. 19. Attorney's Fees: If either Party files any action or brings any proceeding against the other arising from or related to this Agreement, the Prevailing Party shall be entitled to recover from the other Party (as an element of its costs of suit and not as damages) reasonable attorneys' fees (including both in-house and outside attorney's fees), costs and expenses incurred by the Prevailing Party in such action or proceeding (including any appeals). For the purposes of this Paragraph 19, the term 76424 14 "Prevailing Party" shall mean the Party that is entitled to recover its costs of suit for the proceeding, whether or not the same proceeds to final judgment. The Party not entitled to recover its costs shall not recover any attorney's fees, costs or expenses. 20. Time of the Essence: Time is of the essence of each and all of the terms and provisions of this Agreement. 21. General Order 69-C: Notwithstanding any other provisions to the contrary, the License is expressly conditioned upon the right of Licensor to revoke the License and commence or resume the use of the Licensed Premises whenever in the interest of its service to Licensor's patrons or consumers it shall appear necessary or desirable to do so, as provided by General Order 69-C of the Public Utilities Commission of the State of California, as the same may be amended from time to time. 22. Governing Law and Venue: (a) This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to its conflicts of law principles. (b) The Parties hereby agree that any legal action or proceeding arising out of this Agreement shall be brought in a state court of competent jurisdiction in San Diego, California. By execution and delivery of this Agreement, each of the Parties hereby irrevocably accepts and submits to the jurisdiction of such courts, generally and unconditionally, in connection with any such legal action or proceeding. 23. Severability: If any part, paragraph or provision of this Agreement should be invalid, then all the remaining parts, paragraphs and provisions of this Agreement shall continue in full force and effect. 24. Rules of Construction: (a) Headings contained in this Agreement are solely for the convenience of the Parties and are not a part of and shall not be used to interpret this Agreement. The singular form of any word shall include the plural form and vice versa. 76424 15 (b) This Agreement has been prepared, examined, negotiated and revised by each Party and its counsel, and no implication shall be drawn and no provision shall be construed against any Party hereto by virtue of the purported identity of the drafter of this Agreement. 25. No Prescriptive Rights: In no event shall any partyy acquire any interest in the Real Property or the Licensed Premises, including but not limited to any prescriptive rights, by virtue of the License, this Agreement or any holding over on or failure to vacate or surrender the Licensed Premises after the expiration or earlier termination of the License. 26. Entire Agreement; Amendment: This Agreement contains the entire agreement of the Parties with respect to the License and the other matters set forth in this Agreement and supersedes all prior agreements, oral or written, between the Parties with respect to the License and/or any other matters set forth in this Agreement. This Agreement may not be amended except by a written instrument signed by all Parties. 27. Counterparts: This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same document. 76424 16 IN WITNESS WHEREOF, Licensor and Licensee have executed this Agreement as of the Effective Date. LICENSOR: LICENSEE: San Diego Gas & Electric Company City of National City By: By: Name: Name: Ron Morrison Title: Title: Mayor 76424 17 eA STA. 57 dth SHT, 5 -4 zeal SAN DIEOO COUNTY ASSESSORS' MAP _ BOOK 562pAr_ 21 MAPPED FOR ASSESSMENT PURPOSES ONLY GO( <,0 t1•„1'R01NE 5a.71 2„1+. ol t5 ' 7,48 AG STA. 58 5 0.85AC Nl.�•JT/S'F � POR. TOT. B QS 175- • 2 � t P 70 ; C 50 0 Pu .3 QSEC 174 zsm zs 34• HWY. OP. R/W 17371-I 11-SD-5/54 "4v 14 V F• O 0 nP• POR. TCT. C r S fri' '0. N• 0 4 •A 6 lT 3l SHT. I 5 17 11,88 AC. I*HWY. OP. R/W.20548 POR. d 25527 54. HWY. OP. POR. R/W 17368-2 562- 21 1. I" z�zoo, CHANGES RUC OLD NEW YR CUT 2/O 5 spa 75 3¢97 a /O /3 /3 ACA rir.IYic.y+ 75 ASO.1 15 Ory1 /0/E.P 6037 //go /2 more, 11 87 89 590 222002 MAP 1731 - CHAMBER OF COMMERCE IND. LANDS NO.1 MAP 166 - RANCHO DE LA NACION - POR QSEC 174.175. 160 MM 185 ROS 9040,9061, 10256, 10565,11749 )4//3/T "A Sa E )L1- 3 7- 52 F AP1\1 03 .11-U5 cwele 0 . Z w 1- 07 [ROISPCRIAI IOit Lot ELOPMENT Ot 'NAt RECORD MAPS AT Di51 RIC1 O1IiCL. CURVE DATA CURVE R o T L 0 25' 37'53' 12" 8.56' 16.53' 0 65' 89'26'05" 64.36' 101.46' REMOVE FENCE t H2' LENGTH) j IIH __--_.-"_ . r I 0, 0 8 I ui. ..I REMOVE FENCE 112' LENGTH) ``I �I Llufz SEE DETAIL F le 1olt62— 163"t63 "6° 111-i-3`j — 1/31-24) NATIONAL CITY NATIONAL CITY • REMOVE CHAIN L1(41t FENCE2' LENOTI) 7 '52'47" E. 5 . T5' l 2=; MATCH L INE SEE SHEET L-5. STA T 08•00.00, O�ANS Arrnovtt OATL Re RA d WTbtle r Rs VIfors r aprrt gorrtf to tome* rr R4 mvayr ciffh.st ditct m+si d lit sh. vv.! 103i63. 64 £C S2I IT km 4L3�9 , Etav I RONMEi1tALLY SENSITIVE AREA i ') oUT s0' L-4 '2 '4 ‘15 D.M. STEBBINS WIC OF DUFOUR, PARIOW C ICHSPORIA1101 E edfrans PRO,';ECT DEVELOPMENT t./4 Wt. 01,411 ACCURATE ACCESS DATA . SEE RIGIII OF YrAT RECORD MAPS AT OISTRICT OFFICE. • \ N CURVE DATA CURVE R a i L ()• 66' 96'1322- T2.47' 109.16' QD so' 13'20•57" 9.36' 18.84' 0 100' I I-0'0V 9.63' 19.20' ® too. i9-17.46- IT.00' 33-68' • -8- 111.39 STATE P./w L IMi TS . - . . VISTA 2' 228C; GF/Ailt.s —Trst 6s,;5,7 s ... .7 4 - - 1111 1. 5 ENV IONMENTALLT SENS! t VE AREA 14 19 A s 41. If' 1 i SwEETwAtEn RIvER ; 1. : . ;.` -Er 114•11. 0 ,1.),1 isoEN02.20cliCICog.OPE -8- n5.331 I II I I 1- • -PARADISE tA ! BIKE PATH BRIDGE i 8R14051 •. - -11 1 1 1 1 1 1 1 ENV I RONMENTALLY SENSITIVE AREA 1 1 1 1.1 1.1. • I 0 tta X 42 MANS APPROVAL DATC cearde a. Ica dna.< 0-1,0 at& ref c ream a fa. ne a4, 11 tledatrec d aAal LAYOUT SCALE, 1".$0 L-f.