Loading...
HomeMy WebLinkAbout2002 CON SDG&E - First Amendment Lease Agreement Bayshore BikewayFIRST AMENDMENT TO LICENSE THIS FIRST AMENDMENT TO LICENSE is made entered into effective April 1, 2002, by and between SAN DIEGO GAS & ELECTRIC COMPANY, a California Corporation, hereinafter "Licensor," and the CITY OF NATIONAL CITY, a municipal corporation, hereinafter "Licensee," concerning the following facts: Whereas, Licensor and Licensee entered into a License on March 4, 1997 (the "License"); and Whereas, the term of five (5) years set forth in Paragraph 3 of the License expired March 31, 2002; and Whereas, pursuant to paragraph 5 of the License, Licensee exercised its option to extend the term of the license for an additional five (5) years beginning April 1, 2002; and Whereas, Licensor and Licensee wish to amend the License as set forth herein. Therefore, Licensor and Licensee agree as follows: 1. For valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Licensor and Licensee agree to amend the License in the following particulars only. The term of the License is extended for five (5) years beginning April 1, 2002, and ending March 31, 2007. 3. The base annual consideration commencing April 1, 2002, shall be Two Thousand Four Hundred Dollars ($2,400.00), payable annually on April first of each year for the balance of the term of the License, provided that beginning April 1, 2002 the annual consideration shall be increased by an amount equal to the Consumer Price Index as set forth and described in paragraph 1 of Exhibit "B" to the License. 4. In all other respects, the terms and provisions of the License remain in full force and effect. In witness whereof, Licensor and Licensee have executed this First Amendment to License effective as of April 1, 2002. SAN DIEGO GAS & ELECTRIC COMPANY CITY OF NATIONAL CITY A Califor ' Corporation A Municipal Corporation By: Ra►>ld Wassem Manager, Corporate Real Estate By: 9l Nic In a Mayor City of National City, California COUNCIL AGENDA STATEMENT MEETING DATE December 17, 2002 1 AGENDA ITEM NO. 8 ITEM TITLE RESOLUTION APPROVING• A 5-YEAR LICENSE AGREEMENT FOR THE\ BAYSHORE BIKEWAY WITH SAN DIEGO GAS & ELECTRIC PREPARED BY Rhonda Darling DEPARTMENT Public Works/Engineering 336-4380 EXPLANATION On March 4, 1997, the Council approved a five-year license agreement allowing the City of National City to lease a 1,000 foot right-of-way segment of the Bayshore Bikeway in National City from San Diego Gas & Electric, located in the vicinity of the new Marina. Since the Port District property could not accommodate the bikeway, the only alternative was to utilize the adjacent San Diego Gas & Electric right-of-way. All rights -of -way for the Bikeway from Coronado to San Diego had been secured except for this one link. It was anticipated that a permanent solution to the right-of-way would occur during the original five-year lease. However, the lease has now expired, and the Marina development has not occurred as rapidly as anticipated, so San Diego Gas & Electric is requesting that the City renew their lease for an additional 5-year term. As soon as plans are received for the new marina, the City will work with the Port District to include the Bikeway on the Marina parcel. The final phase of the dredging work will be awarded by the Port on October 30, 2002. Per our agreement with the Port, once the operator is selected, the dredging is completed and plans are accepted, then the City will have input as to the placement of the permanent 1,000-foot right-of-way segment. As stated in Paragraph 9 of the license agreement, we may terminate this license for any reason, at any time, by providing 60 days written notice. Environmental Review X NIA Financial Statement A fee of $2,400 per year is required by San Diego Gas & Electric, with an annual adjustArr{'�ni°tword By`, consumer price index increases, any. Funds are available through Account No. 001 The City will be responsible for ‘,n goi • g m.4tertan e. Account No. STAFF RECOMMEND4TI Approve the Resolution and • uthorize the Director of/ Public Works/Engineering to sign the lease. BOARD / COMMISSION RECOMMENDA'fON N/A ATTACHMENTS ( Listed Below ) 1. Resolution 2. First Amendment to License 3. Copy of Resolution No. 97-27 Resolution Plo. RESOLUTION NO. 2002 —183 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE A FIRST AMENDMENT TO THE FIVE-YEAR LICENSE AGREEMENT BETWEEN SAN DIEGO GAS & ELECTRIC AND THE CITY OF NATIONAL CITY FOR THE BAYSHORE BIKEWAY WHEREAS, San Diego Gas & Electric (hereinafter °SDG&E") and the City of National City entered into a license agreement on March 4, 1997; and WHEREAS, the term of five (5) years, as set forth in paragraph 3 of the License, expired on March 31, 2002; and WHEREAS, pursuant to paragraph 5 of the License, the City desires to exercise its option to extend the term of the license for an additional five (5) years beginning April 1, 2002. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City hereby authorizes the Mayor to execute on behalf of the City a First Amendment to the 1997 License Agreement with SDG&E for the Bayshore Bikeway. Said Amendment is on file in the Office of the City Clerk. PASSED and ADOPTED this 17t day of December, 2002. Nick Inzunza, Mayor ATTEST: Michael R. Della, City Clerk APPROVED AS TO FORM: George H. Eiser, III City Attomey FIRST AMENDMENT TO LICENSE THIS FIRST AMENDMENT TO LICENSE is made entered into effective April 1, 2002, by and between SAN DIEGO GAS & ELECTRIC COMPANY, a California Corporation, hereinafter "Licensor," and the CITY OF NATIONAL CITY, a municipal corporation, hereinafter "Licensee," concerning the following facts: Whereas, Licensor and Licensee entered into a License on March 4, 1997 (the "License"); and Whereas, the term of five (S) years set forth in Paragraph 3 of the License expired March 31, 2002; and Whereas, pursuant to paragraph 5 of the License, Licensee exercised its option to extend the term of the license for an additional five (5) years beginning April 1, 2002; and Whereas, Licensor and Licensee wish to amend the License as set forth herein. Therefore, Licensor and Licensee agree as follows: 1. For valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Licensor and Licensee agree to amend the License in the following particulars only. 2. The term of the License is extended for five (5) years beginning April l , 2002, and ending March 31, 2007. 3. The base annual consideration commencing April 1, 2002, shall be Two Thousand Four Hundred Dollars ($2,400.00), payable annually on April first of each year for the balance of the term of the License, provided that beginning April 1, 2002 the annual consideration shall be increased by an amount equal to the Consumer Price Index as set forth and described in paragraph I of Exhibit "B" to the License. 4. effect. In all other respects the terms and provisions of the License remain in full force and In witness whereof, Licensor and Licensee have executed this First Amendment to License effective as of April 1, 2002. San Diego Gas & Electric Company City Of National City A California Corporation A Municipal Corporation By: Rand Wasson Manager, Corporate Real Estate National City Amendment.doc By: Burt Myers Public Works Director -I- City of National City Office of the City Clerk 1243 National City Boulevard, National City, California 91950-4397 Michael R. Dalla, CMC - City Clerk (619) 336-4228 Fax: (619) 336-4229 January 3, 2003 Mr. Rand Wassem Manager, Corporate Real Estate San Diego Gas & Electric PO Box 1831 San Diego CA 92112 Dear Mr. Wassem, On December 17, 2002, Resolution No. 2002-183 was passed and adopted by the City Council of the City of National City, authorizing the Mayor to execute a First Amendment to the Five -Year License Agreement between San Diego Gas & Electric and the City of National City for the Bayshore Bikeway. We are hereby enclosing a certified copy of the above Resolution and two original amendments. Please sign both amendments and return one fully executed amendment to our office in the enclosed, self-addressed envelope. Sincerely, ,)044 Martha L. Alvarez Deputy City Clerk /mla Enclosure cc: PW/Eng File No. C97-6 ® Recycled Paper X N/A MEETING DATE ITEM TITLk City of National City, California COUNCIL AGENDA STATEMENT March 4, 1997 AGENDA ITEM NO. - - 2 PREPARED RY EXPLANATION RESOLUTION APPROVING A LICENSE AGREEMENT FOR THE BAYSHORE BIKEWAY WITH SDG&E Paul Dearochera Executive Directo RTM NT COMMUNITY DEVELOPMENT COMMMISSION (CDC) All rights -of -way for the Bayshore Bikeway from Coronado to San Diego have been secured except for one link in National City. That segment consists of approximately 1,000 feet in the vicinity of the new Marina. The dredging plans on file confirm that the Port District property cannot accommodate the bikeway. The only alternative is to utilize the adjacent SDG&E right-of-way. To do this, a License Agreement must be executed. The license is for five (5) years, and it is anticipated that a permanent solution to the right-of-way will come about during this period. SANDAG is the coordinator of the bikeway. Councilman Ralph Inzunza has been the City's representative for the project along with City Engineering staff. CALTRANS will fund the project and must have assurance that the right-of-way is available prior to construction. Environenenfal Review Mnaneiel Statement A fee of $2,000 per year is required by SDG&E. The City will be responsible for on -going maintenance. Account No. ZTAF.F- REC..CPMM NPATION Approve resolution. BOARD/COMMISSION RECOMMENDATION N/A !��'�1.,�4_'cu�l^�l�r ;_ %••:c4 m,c7 t���P.`�: (:i•. License Agreement bkcwsy.200 Res2+,9eat er.. I49a 97-27 RESOLUTION NO. 97-27 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY APPROVING A LICENSE AGREEMENT FOR THE BAYSHORE BIKEWAY WITH SAN DIEGO GAS & ELECTRIC (SDG&E) WHEREAS, the City of National City has agreed to participate with SANDAG in the development of a regional bicycle route around San Diego Bay, called the 'Bayshore Bikeway'; and WHEREAS, the route has been secured from all member cities except for a portion of the right-of-way in National City; and WHEREAS, the only alternative to complete the National City portion of the bikeway is for the City to enter into a License Agreement with SDG&E for a five- year period. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of National City that the License Agreement for the Bayshore Bikeway with San Diego Gas & Electric is hereby approved. Said License Agreement is on file in the Office of the City Clerk. PASSED and ADOPTED this 4th day of March, 1997. I e l.L — George H. Waters, Mayor ATTEST: Michael R. Dallp(, City Clerk APPROVED AS TO FORM: George H. Eiser, III City Attorney ti Passed and adopted by the Council of the City of National City, California, on March 4, 1997, by the following vote, to -wit: Ayes: Council Members Inzunza, Morrison, Zarate, Waters. Nays: None. Absent: None. Abstain: Council Member Beauchamp. AUTHENTICATED BY: • By: GEORGE H. WATERS Mayor of the City of National City, California ititXhil y Clerk of the QAty ofTfafional City, California Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 97-27 of the City of National City, California, pasccd and adopted by the Council of said City on March 4, 1997. City Clerk of the City of National City, California By:__ 1 kputy ORIGINAL LICENSE THIS License, made and entered into as of this 4th day of March , 19 97 • by and between SAN DIEGO GAS & ELECTRIC COMPANY, a California corporation, hereinafter called "LICENSOR," and the CITY OF NATIONAL CITY, a Municipal corporation, hereinafter called "LICENSEE." In exchange for the payment of consideration by LICENSEE, and performance of the conditions and covenants herein contained, LICENSOR hereby extends a license to LICENSEE to use LICENSOR'S real property as follows: 1. Licensed Premises: The real property which is the subject of this License (hereinafter called "Licensed Premises"), is located at County of San Diego, State of C.Alifornia, as further set forth on Exhibit "A", attached hereto and incorporated herein by reference. 2. Standard License Provisions: In addition to the terns set forth in this License, LICENSEE agrees to comply with, and be bound by, the Standard License Provisions set forth in' Exhibit "B", attached hereto and incorporated herein by reference. 3. Term of License: This License shall be for a term of five (5) year(s) commencing on April 1, 1997, and terminating at midnight on March 31, 2002, unless sooner revoked or terminated as herein provided. 4. Consideration for License: LICENSEE shall pay to LICENSOR as the first year's consideration, without deduction, set-off, prior notice, or demand the sum of $2,000.00. This sum shall be referred to as the "base annual consideration." This base annual consideration shall be subject to adjustment in determining the annual consideration for this license for the years following the first year of this License, if any, as set forth in Paragraph 6 below. The base annual consideration, and all consideration for each subsequent years, shall be payable in advance commencing on April 1, 1997, and thereafter on or before the first day of April, of each succeeding year through the term of this License. 5. Extension: LICENSOR grants to LICENSEE an option to extend this License for five (5) year(s) after the expiration of the original term hereof. LICENSEE may exercise this option by giving written notice to LICENSOR at least ninety (90) days prior to the expiration of this License. If this option is exercised, all terms and conditions of this LirPnsP shall remain the same with the exception of the base annual consideration. The base annual consideration will be renegotiated to the mutual satisfaction of each party prior to the termination of the original term. 6. Payment Review: On each annual anniversary date of the commencement of this License during the term of this License, the base annual consideration then due and owing shall be increased based on the formula set forth in Paragraph 1 of Exhibit "B". 7. Use of Premises: This License is non-exclusive, personal to the LICENSEE, cannot be assigned and is valid for the following uses only: A twelve (12) foot wide bike path with four (4) foot high chain -link fence and gates, as shown on the attached Exhibit "A" drawings, sheets 1 and 2. 8. Surfacing: As additional consideration for this License, LICENSEE agrees at its own expense: (a) to pave the surface of the area to be used for the bike path, if required by LICENSOR, to LICENSOR'S specifications; (b) to maintain the paving in good condition, reasonable wear and tear excepted, during the term of this License, including any renewals; (c) to paint, stripe, or provide barricades so as to promote safety and the orderly flow of bicycles along said bike path; (d) to construct and maintain fences as required by LICENSOR to LICENSOR'S specifications; and (e) to submit in writing for LICENSORS approval prior to construction a general plan showing the proposed bike path, widths, obstructions and improvements. 9. Revocability: LICENSOR or LICENSEE may revoke and thereby terminate this License for any reason, at any time, without cause, by giving either party sixty (60) days' written notice. - 2 - 10_ Notices: Pursuant to Paragraph 2 of Exhibit "B", notices to be given to LICENSEE shall be addressed as follows: Mr. George Waters Mayor City of National City 1243 National City Boulevard National City, CA 91950 11. des: As additional consideration for this License, LICENSEE shall reimburse to LICENSOR within ten (10) days after receiving written demand therefore, a sum of money equivalent to the taxes levied or assessed against the Licensed Premises while occupied by LICENSEE pro -rated to the extent this License was not in effect for a portion of the applicable tax year. LICENSEE shall also reimburse LICENSOR for taxes levied againstimprovements and personal property placed or constructed on the Licensed Premises by LICENSEE. LICENSEE shall not be responsible for taxes levied against impmvements and personal property placed or constructed on the Licensed premises by LICENSOR. IN WITNESS WHEREOF, the parties have executed this License as of the above date first written. LICENSOR: SAN DIEGO GAS & LACTRIC COMPANY, a .'a corporation le— - Director l Estate Operations LICENSEE: CITY OF NATIONAL CITY, a Municipal Corporation By: George Waters Mayor APPROVED AS TO FORM '_ - 3 - George H. Eiser, III City Attorney b tc 0. rQq COMPLETE RICHT OF RAT ARO ACCURATE ACCESS DATA . SEE RICHT or •Na Y RECORD VAPS AT 0 .STR1CT OFFICE. A CURVE DATA CURVE R A , t. ZS' W 33. IV S.I. 43' W 26' OS._ 44. 36' ICI. AV • REVO,E FENCE LENCTIO . . _ •12ND ST AENCIRE FENCE CO. LEMOAH, SEE DO A it • 1.11g btata /01'63 "te 111+31 — i/31-24 NATIONAL CITY • , • gt, (4.-4 ocE, ' jq tem-s,•. :.); 0 ,EM X : 4 0 REMOVE [MAIN rENCE'0,7. Ltnorr, -oo ro4 t.!NE SEE SHEET • • ' )09 00 //010v7.1 ,41,C Vse•I Woe.. A• di., • —, Vera h ever* le •• Men e eeeenet e wore /on so f .• ted.uk ra_mc.5. flfl )m (;OIF1 FOR v.VYF LATE RIC111 Oc MAY AI]. AOCUaA¢ ASGE55 DATA SEE Oc v*Y RECCRO U. S AT OISTTR:CT OEE 1cf. CVRYE 6 Q 6S 90 100' I CO' CVRVB DATA A 96' IS'97' 13*?0' ST' 11'0 OS" 19' 1T 46 9.63 17. 00' 109.19 MSc H_20' ll_ 69' L. r`S a✓ • m en O F- z 8 w NATIONAL CITY .. NATI o•,,,HA,, I T C1TY_LIHIt$ CNULA VISTA CITY LIMITS CHULA VISTA R,vE1, 1 PARAOI BR 40 5 f . ENV IiIOA'MEN TALLY %NM TIDE AREA ' -I I ;( ENO ROC[ KB le I ISE PATH BRIOGF`j ' 15.50,00 a u4TCN LINE SEE SNEET )n Re/ / WV.M. n AINr, s sr.. N.r. w ,e+rem r>1esvnr `TliirrT I 1. II ENVIRONMENTALLY I', i " SENSI1IVE AREA ' LL I I_LL I I ! LAY( L-I SC At 1 1 ( .. 7 = l � W 11 Y'iY+ ,L] `�II IPL,•�yf' v)Ii Lt EXHIBIT "B" STANDARD LICENSE PROVISIONS TABLE OF CONTENTS DESCRIPTION PAGE, 8. Assumption of Risk 5 9. Electric and Magnetic Fields 5 10. Indemnification 6 11. Public Liability Insurance 6 12. Obstructions 6 13. Attorneys Fees 7 14. Condemnation 7 15. Breach of Conditions 7 16. Time of the Essence 7 17. Growing Crops or Tree Stock 7 18. General Order 69-C 8 19. Default 8 20. Condition of Premises - End of Term 8 21. Payment of Service Utilities 9 22. Audit Rights 9 23. Governing Law 9 24. Severability 9 25. Execution of License 9 1. Payment Review 2. Notices 1 3. General Restrictions 2 4. Licensor's Facilities 2 5. Alterations 2 6. Environmental Compliance 2 7. Compliance with Law 4 EXHIBIT "B" Standard License Provisions San Diego Gas & Electric, LICENSOR 1. Payment Review As provided in the License the base annual consideration shall be increased based on the following formula: The amount of annual consideration due will be computed by using the Consumer Price Index Number covering the cost of "all items" of goods and services purchased by all urban consumers in Los Angeles, Anaheim, Riverside, ('.alifornia, published by the United States Department of Labor, using the period 1982-84 = 100 as the base period. The annual consideration for each period subsequent to the first year of the License shall be computed by dividing the annual base consideration by the Index Number for the first month of the first year of the License. The amount derived is then multiplied by the average Index Number for the third and fourth months immediately preceding the anniversary date of each subsequent year of the License to determine the annual consideration. Notwithstanding the above, the annual consideration shall not be reduced below the annual consideration for the preceding year. If there is no such Consumer Price Index published at the time of any periodic mathematical computation required by this paragraph, but a comparable Index is published by any agency of the United States Government, such latter Index shall be selected by LICENSOR. If no such comparable Index is then published, the computation will be made in accordance with the change in the cost of living and, if not arrived at by agreement of the parties, will be determined by arbitration under the rules and procedures of the American Arbitration Association. 2. Notices: Notices to be given under the License shall be deemed given when placed by either party in the United States mail, postage prepaid, certified, and addressed to the LICENSF.F at the address in the License and to LICENSOR: San Diego Gas & Electric Company Attention: Real Estate Operations P. O. Box 1831 San Diego, CA 92112 B-1 General Restrictions: No trailers or house trailers shall be parked in or on the Licensed Premises. No storage parking shall be allowed on the Licensed Premises unless specifically allowed elsewhere in this License. LICENSEE shall not live or reside on and shall not permit anyone, including its agents, servants, employees, contractors or any third person whatsoever, to live or reside on the Licensed Premises LICENSEE shall (a) at all times keep the Licensed Premises clean, and free from rubbish, public nuisances, weeds, brush, flammable materials, growth, debris, and waste, and in a condition satisfactory to LICENSOR and (b) shall guard against erosion or fires occurring upon the Licensed Premises. 4. LICENSOR'S Facilities: LICENSEE'S use of the Licensed Premises shall not interfere or conflict with LICENSORS use and ownership of the Licensed Premises, and LICENSOR shall at all times have the right to enter and use the Licensed Premises for any purpose, including, but not limited to installation and maintenance of facilities and equipment at such locations and at such elevations as LICENSOR may or in the future deem advisable. LICENSEE accepts the Licensed Premises subject to the foregoing. LICENSOR shall have the right to trim any trees, brush, or roots on the Licensed Premises when necessary for the safety of its facilities. Alterations: LICENSEE shall not make or allow to be made any alterations of the Licensed Premises, except as provided in the paragraph entitled "Use of the Premises" in the License. For those alterations which are allowed by the License, LICENSEE shall not begin work until prior written consent for specific construction and landscaping plans is obtained from LICENSOR which consent will not be unreasonably withheld. LICENSEE shall keep the Licensed Premises free from any liens arising from such work performed, material furnished, or obligations incurred by LICENSEE, or arising from any taxes or assessments levied or assessed upon LICENSEE or the Licensed Premises by reason of the use of, or anything done or permitted by LICENSEE upon such premises. LICENSEE shall obtain appropriate permits and a completion bond, for LICENSOR'S approval, in the amount of the proposed improvements prior to beginning any alterations. 6. Environmental Compliance: LICENSEE shall not engage in, nor shall it permit any third party to engage in, activities upon the Premises, or any portion thereof, for the purpose of or anyway involving the handling, manufacturing, treatment, storage, use, transportation, spillage, leakage, dumping, discharge or disposal (whether legal or illegal, accidental or intentional) of any hazardous or toxic substances, materials or wastes, or any wastes B-2 regulated under any local, state or federal law. All substances/materials to be used by LICENSEE at this site are set forth on Schedule "A", attached hereto. LICENSEE shall be, and remain for the term of this License, in full compliance with all applicable laws governing the use and occupancy of the Premises including, without limitation, the handling, manufacturing, treatment, storage, disposal, discharge, use, and transportation of hazardous or toxic substances, materials or wastes, and any wastes regulated under any local, state or federal law (hereinafter collectively referred to as "Standards") LICENSEE shall not create nor permit to be created nor permit to exist upon the Premises any non-compliance with Standards or any condition which could be alleged to create a nuisance, public, private or mixed, or to otherwise present a threat to health or property by any unhealthful, hazardous or dangerous condition (herein collectively referred to as "Harmful Conditions"). LICENSEE shall contain any Harmful condition to prevent it from deteriorating. LICENSEE shall notify LICENSOR immediately of any Harmful Condition or non-compliance with any Standard and LICENSEE shall notify all responsible local, state or federal agencies as required by local, state or federal regulations. In the event LICENSEE fails to be in full compliance with the obligations assumed by LICENSEE herein and LICENSEE does not correct such non-compliance within three (3) days of written notice of such failure given by LICENSOR, LICENSOR may, but shall not be obligated to, take whatever action is necessary to bring the Premises into compliance. If, however, LICENSEE has begun compliance within three (3) days of written notice, but such compliance cannot be accomplished within the allowed time frame, LICENSOR shall not interfere with LICENSEE'S good faith efforts. If compliance has not been accomplished within fifteen (l5) days, LICENSOR may, but shall not be obligated to, take whatever action is necessary. LICENSEE shall reimburse LICENSOR for all costs (including, but not limited to, consulting, engineering, clean up, containment, disposal, and legal costs) incurred by LICENSOR as a result of LICENSEE'S failure to comply with the foregoing obligations assumed by LICENSEE, and also such costs as may be incurred by LICENSOR in abating or protecting against Harmful Conditions and/or a violation of Standards. B-3 LICENSEE shall indemnify, defend, and hold LICENSOR, its employees and agents, harmless from and against any claim or lawsuit, local, state, or federal enforcement action, or civil or criminal claims, which arise from or relate to any actual or alleged Harmful Conditions, actual or alleged violation of Standards, or actual or alleged injuries to or death of any persons and loss of or damages to property, including without limitation, employees and property of LICENSOR and LICENSEE, which arise during LICENSEE'S presence on, or negligent use of, the Premises. LICENSEE expressly agrees that the indemnification, and hold harmless obligations assumed by LICENSEE with regard to abatement of Harmful Conditions and violations of Standards in this Article, shall survive expiration or termination of this License. 7. Compliance with Law: LICENSEE shall comply with all laws, ordinances, codes, zoning ordinances, and regulations of any Federal, State, Local or other public body or agency exercising jurisdiction over the Licevstd Premises. LICENSEE shall maintain the Licensed Premises and any improvements according to zoning, and other standards, including, but not limited to, water, air and noise standards, set by such bodies or agencies. LICENSEE shall notify LICENSOR immediately of any non-compliance with any laws, ordinances, codes, zoning ordinances, and regulations of any Federal, State, Local or other public body or agency exercising jurisdiction over the Licensed Premises. The failure of LICENSEE to maintain the Licensed Premises and any improvements according to such standards, shall he construed as a default of this License. LICENSOR may, after giving ten (10) days written notice of such failure to LICENSEE, do any acts necessary to bring the Licensed Premises and improvements into compliance with such standards. If, however, LICENSEE has begun compliance within ten (10) days of written notice, but such compliance cannot be accomplished within the allowed time frame, LICENSOR shall not interfere with LICENSEE'S good faith efforts. If compliance has not been accomplished within thirty (30) days, LICENSOR may, but shall not be obligated to, take whatever action is necessary. LICENSEE agrees to repay LICENSOR for all costs, including but not limited to consulting, engineering, construction and legal costs incurred by LICENSOR in abating a violation of such standards, protecting against a threatened violation of such standards and paving any fine or assessment levied as a result of violation of such standards. LICENSEE shall further indemnify and hold harmless LICENSOR from any claim, loss, damage or injury, including any tines or penalties assessed by any agency, body or court, resulting from any violation of such B-4 standards in connection with LICENSEE'S negligent use of the Licensed Premises and improvements. LICENSEE shall, at its cost, undertake to respond to all such claims. 8. Assumption of Risk: LICENSEE acknowledges and expressly agrees that there are or may be high voltage lines, towers, poles, underground electric ducts, cables, wires, and high pressure gas or oil pipelines, valves and facilities, situated on, in, or near the Licensed Premises which are used by LICENSOR in its regular course of business. LICENSEE for itself, its agents, employees, independent contractors, invitees, licensees, perrnittees, and the agents and employees of each hereby assumes all risks, including those of an extra -hazardous nature, of injury to persons and damage to property arising out of the use of the Licensed Premises. LICENSEE for itself and for each of the above described persons hereby waives and releases LICENSOR from all liability as set forth above. If agricultural or horticultural use is being made of the Licensed Premises, LICENSEE further agrees to periodically warn and remind all of the above described persons, at least on a weekly basis during picking or harvesting, of such risk. LICENSEE also agrees to adopt any existing work methods or procedures and to use any existing equipment which will measurably reduce the amount of such risk. Electrdc and Magnetic Fields: Electric and Magnetic Fields (EMF) are present whenever electricity flows - around appliances and power lines, and in offices, schools and homes. Most, but not all, childhood studies have reported a weak association between estimates of residential magnetic field exposure and certain types of childhood cancer. Worker studies have shown mixed results. Given the one- rtainty of the issue, the medical and scientific communities have been unable to determine that EMF causes health effects or to 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, it is probably low, but warrants further investigation. Recent concern focuses on exposure to magnetic fields rather than electric fields. Whenever anyone plans to license SDG&E property that is in close proximity to SDG&E electric facilities, we want to share with them the balanced information or literature we have about EMF if they are interested. We have attached to this license a packet that contains several sources of EMF information and that outlines SDG&E's policy in this area. Please let us know if you have questions or wish to have additional information. B-5 10. join: LICENSEE agrees to indemnify and hold LICENSOR, its officers, employees, agents or Licensees harmless from and against any and all demands, claims, suits, costs of defense, attorneys' fees, witness fees, including expert witness fees, liability, loss, costs, obligations or other expenses for damage to property or for injury to or death of any persons in any manner arising from (a) LICENSEE'S negligent use, maintenance, presence on or occupation of the Licensed Premises, (b) the presence of LICENSEE'S facilities upon the Licensed Premises, or (c) any act or omission of LICENSEE, its employees, agents or Licensees, or of any employees, agents or Licensees of its contractors, subcontractors or independent contractors. 11. Public Liability Insurance: LICENSEE shall, at its own expense secure and maintain in effect during the entire life of this License insurance coverage's as described herein, in amounts not less than the minimum limits specified, to protect LICENSOR and LICENSEE from claims or liabilities in any way arising out of the ownership, maintenance or use of the License Premises: (a) Workers' Compensation Insurance and Employer's Liability Insurance in accordance with statutory requirements and limits, including U. S. Longshoremen's and Harbor Workers' Compensation Act coverage, where applicable, (b) Comprehensive General Liability insurance to include products -completed operations and contractual liability coverage for liability assumed by LICENSEE under this License, and automobile liability insurance, with limits of not less than $1,000,000 each occurrence for bodily injury and property damage combined. Such liability insurance shall name LICENSOR as additional insured, shall contain a severability of interest or cross liability clause and shall be primary for all purposes. Certificates of insurance evidencing the coverage's and provisions required in (a) and (b) above shall be furnished to LICENSOR prior to any use of the Licensed Premises by LICENSEE and shall provide that written notice be given to LICENSOR at least thirty (30) days prior to cancellation or reduction of any coverage. LICENSEE agrees, at request of LICENSOR, to increase the limits of insurance to meet the limits then required by LICENSOR for similar licenses of this type. The provisions of this paragraph shall not in any way limit any of LICENSEE'S other obligations or liabilities under this License. The LICENSEE has the right to self -insure these exposures. 12. Obstructions: Except as permitted by this License, LICENSEE shall not place, install, maintain, or allow any combustible materials, buildings, structures, or other improvements upon the Licensed Premises and shall not cause or allow the surface B-6 elevation therein to be changed in any way whatsoever, without LICENSOR'S prior written approval. 13. Aliwrney's Fees: If either party hereto commences any legal action or proceeding against the other by reason of the alleged failure of the other to perform under this License, the party prevailing in said action or proceeding shall be entitled to recover, in addition to court costs, a reasonable attorney's fee to be fixed by the court. Such recovery shall include court costs and attorney's fees on appeal, if any. As used herein, "the party prevailing" means the party in whose favor final judgement is rendered. 14. Condemnation: If the whole or any part of the Licensed Premises shall be taken by any public or quasi -public authority under the power of eminent domain, this License shall cease as to that part so taken from the day possession of that part shall be required for any public purpose. On or before that day, LICENSEE shall elect in writing either to cancel this License or to continue as to the remainder of the Licensed Premises under the terms herein provided. If LICENSEE elects to continue, the consideration paid by LICENSEE for all subsequent years of this License shall be reduced by a percentage equivalent to the percentage the Licensed Premises was reduced in area by the taking. All damages awarded for such taking shall belong to and be the property of LICENSOR, with the exception that in the event LICENSEE should not be allowed to remove any fixtures or other personal property as provided by the terms of this License, then LICENSEE shall receive that portion of the award, paid to LICENSOR, which shall represent the value of LICENSEE'S property so retained. 15. Breach of Conditions: LICENSORS waiver of any one or more of the covenants, conditions, or agreements of this License shall not be construed to be a waiver of any subsequent or other breach of the same or any other covenant, conditions, or agreement of this License. LICENSORS failure to require or exact full complete compliance with any of the covenants, conditions, or agreements of this License shall not be construed as changing the terms hereof, and such failure shall not stop LICENSOR from enforcing the full provisions hereof. The terms of this License shall be amended only in writing by LICENSOR and LICENSEE. 16. Time of the Essence: It is mutually agreed that time is of the essence of each and all of the terms and provisions of this License. B-7 17. Growing Crops or Tree Stoe : If, at the revocation or termination of this License, there are growing crops or tree stock on Licensed Premises in which LICENSEE has an interest, LICENSEE shall nonetheless leave the Licensed Premises and LICENSOR shall have the right to do with or dispose of said crops or stocks as LICENSOR sees fit without compensation, remuneration or liability to LICENSEE on account thereof. However, in the event that said crops or stock will mature within one month after the date of termination of this License, and if during the term hereof LICENSEE shall have requested extension of this License as herein provided, which extension was denied by LICENSOR, LICENSOR shall extend the term of this License for forty (40) days from the date of said termination for additional consideration based on a pro-rata atnount of the consideration in effect at such time. 18. General Order 69-C: Notwithstanding any other provisions to the contrary, this License is expressly conditioned upon the right of LICENSOR to commence or resume the use of the property whenever in the interest of its service to its patrons or consumers it shall appear necessary or desirable to do so, as provided by General Order 69-C or any revision thereof or amendment thereto, of the Public Utilities Commission of the State of California. 19. Default: In the event of default by LICENSEE in the performance of any of the covenants, conditions or agreements hereof, LICENSOR shall give LICENSEE written notice as provided herein of the default. If the default is not cured or corrected to the satisfaction of LICENSOR within ten (10) days of said written notice LICENSOR may immediately revoke and terminate this License and LICENSEE shall forfeit ail consideration paid. 20. Condition of Premises - End of Term: Upon termination or revocation of this License, LICENSEE shall surrender the Licensed Premises to LICENSOR in a condition satisfactory to LICENSOR, clean and free of debris. At LICENSOR'S option, and at no cost to LICENSOR, LICENSEE shall, within ten (10) days, remove from the Licensed Premises all buildings, structures, facilities, equipment and personal property of whatever nature belonging to LICENSEE and return the Licensed Premises to the condition in which it was in immediately prior to commencement of this License. If, within ten (10) days, LICENSEE has failed to remove its property and/or return the Licensed Premises to its original condition, LICENSOR may, at its option, remove LICENSEE'S property and restore the Licensed Premises to its original condition, and LICENSEE hereby agrees and covenants that it shall pay to LICENSOR all expenses of LICENSOR including, but not B-8 • limited to, labor costs, including overhead expenses, rental of storage space, equipment rental, materials and fuel costs of machinery. 21. Payment of Service Utilities: LICENSEE shall pay for all utilities furnished to the Licensed Premises during the term of this License or any renewal thereof, including but not limited to electricity, gas, water and telephone service. 22. Audit Rights: !(A) LICENSOR reserves the right to audit any books, records, receipts, purchase orders, settlements and other documentation and supporting information relating to this Agreement. Any such audit (s) shall be undertaken by an employee of LICENSOR or its contracted representative (s) from a Certified Public Accounting Firm at reasonable business hours and in conformance with generally accepted auditing standards. LICENSEE agrees to fully cooperate with any such audit (s). (I3) If such audit shows a deficiency in any percentage payment for the period covered, the amount thereof shall be paid within fifteen (15) days by LICENSEE. If such audit shall show percentage payments to have been overpaid, the excess shall he applied to any amounts there due to LICENSEE. If any deficiency in percentage varies by more than three percent (3%) over figures submitted by LICENSEE, LICENSEE shall pay for the audit; if audit verifies LICENSEE'S figures within three percent (3%), expense of audit shall be borne by LICENSOR. 23. Governing Law: This License shall be governed by and construed in accordance with the laws of the State of California. 24. Severability: If any part, paragraph or provision of this Agreement should be invalid, then all the remaining parts, paragraphs and provisions shall continue to be fully effective. B-9 25. Execution of License: Execution of this Exhibit "B" as part of this License by LICENSEE and its return to LICENSOR shall not be binding on LICENSEE until LICENSEE has in fact signed and delivered this Exhibit "B" to LICENSOR. I have read and accept the foregoing Exhibit "B" to the License Agreement. LICENSEE: CITY OF NATIONAL CITY a Municipal Corporation By: r+fG �7 --_ George aters, Mayor Date: 3- /9- Ty APPROVED AS TO FORM George H. Elser, III City Attorney B-10 • SCIIEDULE, "A" LICENSEE may use, only so long as LICENSEE is in full conformance and compliance with all State, Federal, and Local rules, regulations, and laws, the following substances for the following specified purposes: —NONE-- The use, storage, disposal, or handling of any material or sub -stances not identified above, or any misuse of the material or substances identified above, shall be considered a material breach and default of this License.