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HomeMy WebLinkAboutC-8785-1 - Non-Exclusive License Agreement (for Coastal Peak Park DCU)V 00 NON-EXCLUSIVE LICENSE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH U AND SOUTHERN CALIFORNIA GAS COMPANY This Non -Exclusive License Agreement ("Agreement") is made and entered into as of this 12, TW day of 0GT0Be9 , 2021 ("Effective Date"), by and between the City of Newport Beach, a California municipal corporation and charter city ("City"), and Southern California Gas Company, a California corporation ("SoCalGas"). City and SoCalGas are referred to hereinafter individually as "Party" and collectively as "Parties." 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 fee title owner of Coastal Peak Park, located at 20403 East Coastal Peak, Newport Beach, California 92657 [A.P.N. 478-451-04] ("Property") as further depicted on Exhibit "A," which is attached hereto and incorporated herein by this reference. C. SoCalGas is an investor-owned public utility that provides gas utility services to residents of the City. D. SoCalGas has implemented an Advanced Meter program by installing Data Collector Units ("DCU"), which consists of, among other things, the installation of electronic meter devices, including but not limited to data collector units, antennas, and gas repeaters and/or radio frequency local area network range extenders, collectively ("Equipment"). These DCUs have been installed on City -owned streetlights within the public right-of-way throughout the City pursuant to that License Agreement executed by and between the City of Newport Beach and Southern California Gas Company, dated January 22, 2016. E. To complete the Advanced Meter program roll-out in Newport Beach, SoCalGas desires to install a DCU in the East Newport Coast area of the City. With no streetlight structures in the public right-of-way in this area of the City, SoCalGas requests to license a portion of the Property to install the DCU. F. The installation of the DCU will utilize a portion of an existing building at the Property ("License Area"), which building consists of a public restroom, storage facility and communication equipment room. The License Area is more particularly described and depicted as set forth in Exhibit "B", which is attached hereto and incorporated by reference. Southern California Gas Company Page 1 G. Pursuant to City Council Policy F-7, whenever an open bid is not conducted prior to entering into a license agreement for City Property, the City shall make specific findings setting forth the reasons thereof. The City finds that converting the property to another use or changing the licensee of the property would result in excessive vacancy, which would outweigh other financial benefits and the use of the property provides an essential or unique service to the community that might not otherwise be provided were full market value of the property be required. Further, City Council Policy F-7 provides that the City may allow its unused property to generate revenue and as a means to provide otherwise unfeasible uses and facilities to benefit the community. H. City and SoCalGas have agreed to enter into this Agreement regarding SoCalGas's installation and use of the License Area upon the terms, conditions and other considerations set forth herein. NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS: 1. LICENSE 1.1 City grants a non-exclusive license ("License") to SoCalGas for the term of this Agreement, to construct, install, operate, and maintain the DCU on the License Area. The DCU to be installed on the License Area shall conform to the improvement drawings, designs and specifications ("Improvement Plans") as depicted in Exhibit "C" and as reviewed by and on file as a public record with the City's Public Works Director and Community Development Departments and to operate, use, maintain, repair, replace, improve, alter, inspect, test and remove such DCU on the terms and conditions set forth herein. 1.2 All installation, maintenance, and operation activities shall be at SoCalGas's sole cost and expense, including but not limited to the fees and costs associated with all activities related to the installation, maintenance, operation, use, repair, replacement, improvement, alteration, inspection, testing and removal of the DCU and any required utilities or meters, as identified in said Improvement Plans. SoCalGas 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 SoCalGas 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. 1.3 All of SoCalGas's construction and installation work shall be performed at SoCalGas's sole cost and expense and in a good and workmanlike manner and the Improvement Plans reviewed by the City Engineer, and in compliance with all applicable ordinances, regulations or law. Prior to installation of the DCU, SoCalGas shall obtain all applicable approvals and permits from the City and other governmental entities. Southern California Gas Company Page 2 1.4 Notwithstanding SoCalGas's construction and installation of the DCU, it is the Parties' intention that the SoCalGas's interest in the License Area is restricted to this License and the City retains all rights, title and interest in the Property and License Area. 2. GOVERNMENT APPROVALS 2.1 In addition to this License, SoCalGas shall, at its sole cost and expense, obtain all applicable governmental licenses, permits and approvals required by federal, state or local governmental agencies, enabling SoCalGas to construct, install, operate, repair and remove the DCU in the License Area. 2.2 Any future modifications to SoCalGas's DCU shall require further review, submittal, and written approval by City, including any additional permits or approvals that may be required from the City or other governmental agency. 3. USES 3.1 Construction, operation and maintenance of the DCU at the License Area shall be kept, at SoCalGas's sole cost and expense, free from hazards or risk to public health, safety or welfare, and shall not reduce or compromise the City's ownership, operation, or maintenance of the Property, or the public's full use and enjoyment of the Property for its intended uses. 3.2 Except as provided under this Agreement, SoCalGas shall not make or permit to be made any alterations, additions or improvements to the License Area, or paint, install lighting or decorations, or install any signs, lettering or advertising media of any type or any other visual displays, on or about the License Area without the prior written approval by City. Notwithstanding the foregoing, SoCalGas shall place warning signs on or about the License Area in the event that such signs are required by Federal, State or local law. 3.3 SoCalGas hereby acknowledges, agrees and covenants that this Agreement does not authorize or bestow any rights to SoCalGas to provide or to sublease the Property or License Area to provide, cable television service or commercial utilities services. 4. TERM This Agreement shall commence upon the Effective Date (which is a date consistent with the notice period provided in City Council Policy L-23, or any successor policy) and terminate upon SoCalGas's non-use of the DCU for a period of one hundred eighty (180) consecutive calendar days, or January 22, 2036, whichever occurs first, or if this Agreement is otherwise terminated pursuant to Section 20. Both Parties understand and agree, this Agreement is for a specified period of time and this is not, and will not result in the permanent location of SoCalGas's DCU on the License Area. Southern California Gas Company Page 3 5. FEES 5.1 SoCalGas shall pay to the City Five Hundred Eighty -Five and 00/100 Dollars ($585.00) as compensation for use of the License Area during the Term of this Agreement ("License Fee"), which amount shall be due and payable upon execution of this Agreement ("Due Date"). The License Fee is based on a rate of Thirty -Nine and 00/100 Dollars ($39.00) per year. 5.2 Cost Reimbursement Fee. SoCalGas shall pay to the City, without demand, deduction, offset, or abatement, the sum of Fifty -One Thousand Two Hundred and Two Dollars and 00/100 ($51,202.00) (the "Cost Reimbursement Fee") towards City's costs to supervise the SoCalGas' access to the License Area (accompanied by a City employee) for the initial construction and ongoing annual maintenance and inspection of the Equipment, SoCalGas' share of the annual landscape, site, and building maintenance costs, legal, administration, and management costs, and the electricity costs related to the equipment as further outlined below in Section 12. The Due Date for the Cost Reimbursement Fee shall be upon execution of this Agreement. 5.3 Payment Location. All payments due hereunder by SoCalGas shall be made in lawful money of the United States of America and shall be paid to City online at www.newportbeachca.gov, in person or by United States' mail, or overnight mail service, at the Cashier's Office located at 100 Civic Center Drive, Newport Beach, CA 92660, or to such other address as City may from time to time designate in writing to SoCalGas. SoCalGas assumes all risk of loss and responsibility for late charges and delinquency rates if payments are not timely received by the City regardless of the method of transmittal. 5.4 If SoCalGas fails to pay the License Fee or Cost Reimbursement Fee within five (5) calendar days of the Due Date, SoCalGas shall pay a penalty in an amount equal to ten percent (10%) plus interest in an amount equal to ten (10%) percent per annum on the unpaid amount, including the late fee, that was not timely paid by SoCalGas, until paid in full. 5.5 Reserved. 5.6 SoCalGas, or any successor or authorized assign, as permitted under this Agreement, shall bear all costs incurred in connection with SoCalGas's or its employees', contractors', subcontractors' or agents' planning, design, installation, construction, maintenance, repair, operation and removal of the DCU. City shall not be responsible or bear any cost for repair of any damage or movement of the DCU due to repair, maintenance and/or failure/collapse of any existing gas, water and sewer lines or any other improvements or works approximate to the DCU, except for the active negligence or willful misconduct of the City, its officers, agents, employees, contractors or subcontractors. City shall not be responsible for damage caused to the DCU as a result of the actions or inactions of other parties, including, but not limited to, damage resulting from use of the Property by any third parties or contractors not employed by the City. Southern California Gas Company Page 4 6. INTERFERENCE WITH CITY TELECOMMUNICATIONS 6.1 SoCalGas installation and use of its DCU under this Agreement shall not damage or interfere in any way with the Property in general, including, but not limited to, the overall visual aesthetic of the Property, structure, accessibility, or public enjoyment of the Property's facilities, pathways, benches, and general landscape. The City at all times during this Agreement, reserves the right to take any action it deems necessary, in its sole discretion, to repair, maintain, alter, or improve the Property, which may temporarily interfere with SoCalGas's License Area as may be necessary in order to carry out any of such activities. The City agrees to give five (5) calendar days' advanced notice, unless in case of emergency, of such interference to SoCalGas and to reasonably cooperate with SoCalGas to carry out such activities with a minimum amount of interference with SoCalGas's operations. 6.2 SoCalGas agrees that its operation of the DCU shall at all times comply with all applicable Federal Communications Commission ("FCC") requirements and shall not cause any interference with the 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"). 6.3 In the event of any interference with City Police and Fire Department public safety communications, SoCalGas shall work with the affected Department to correct the interference within two (2) hours of City's written or telephone notice to SoCalGas. In the event of interference with City's wireless communications system or external radio signals and communications other than Police or Fire Department, SoCalGas 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 DCU and if SoCalGas is unable to correct interference to City's satisfaction within the time frames agreed upon above, SoCalGas shall immediately cease its operation of the DCU until the cause of the interference is corrected to City's satisfaction. If SoCalGas fails to correct any interference, City may, in addition to and without compromising any other available remedy cut off power to the DCU as set forth in this Agreement after notifying SoCalGas of City's intent to cut off power. 6.4 Prior to making any changes to the frequency or operating conditions of the DCU, SoCalGas shall submit plans for the proposed changes to City for its review and approval, which approval may be withheld, for any reason, at City's sole discretion. SoCalGas agrees to fund any studies necessary to ensure that any contemplated changes will be compatible with the City's Facilities. In no event shall SoCalGas change the operation of the DCU that would cause the License Area to become a fire hazard or cause it to be categorized in a different fire zone, or impact the permitted zoning status of the License Area at the time of execution of this Agreement, unless otherwise approved in writing by City. No SoCalGas change shall occur prior to the City's written approval. Southern California Gas Company Page 5 7. EMERGENCY 7.1 SoCalGas understands that the DCU is located on public property and emergency situations may develop from time -to -time that require power to the DCU to be immediately shut off and thereby interfere or temporarily terminate SoCalGas's use of its DCU and the License Area. SoCalGas 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 SoCalGas in a manner that threatens public health or safety, City shall have the right to immediately shut off power to the DCU and any equipment of SoCalGas's located on the License Area for the duration of the emergency. SoCalGas agrees not to hold City responsible or liable for any damage, loss, claim or liability of any nature whatsoever suffered as a result of the loss of the use of the DCU by such shut off of power. 7.2 SoCalGas agrees to install a clearly marked and accessible master power "cut-off" switch on their equipment at the License Area for the purpose of assisting City in such an emergency. 7.3 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 DCU is not intended to constitute a termination of this Agreement by either Party and such event is a risk accepted by the SoCalGas. SoCalGas 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. 7.4 City shall have the right to reasonably determine what constitutes an "emergency situation" pursuant to this Section. 8. ACCEPTANCE OF CONDITION OF LICENSE AREA SoCalGas accepts use of the License Area in an "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 SoCalGas. SoCalGas 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 license to use and access the License Area, revocable and for a temporary term as set forth in this Agreement. 10. RESERVATION OF RIGHTS SoCalGas understands, acknowledges and agrees that any and all authorizations granted to SoCalGas under this Agreement are non-exclusive and shall remain subject Southern California Gas Company Page 6 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 City property. 11. POWERS TO ENTER INTO AGREEMENT The individuals executing this Agreement represent and warrant that they have the right, power, legal capacity and authority to enter into and to execute this Agreement on behalf of the respective legal entities of the SoCalGas and the City. 12. UTILITIES SoCalGas shall obtain its electricity for the Equipment by tapping into the City's power source at the Property within the equipment room where the License Area is located. SoCalGas shall pay to the City a fixed fee for the use of the City's power services, which the Parties agree shall initially be Fifty and 00/100 Dollars ($50.00) per year under this Agreement ("Utility Use Fee"), which payment shall be prepaid as part of the Cost Reimbursement Fee. City, upon not less than thirty (30) days' prior written notice to SoCalGas, may increase the Utility Use Fee commensurate with costs incurred by the City for SoCalGas' use of the City provided utilities. City's costs incurred for SoCalGas' use of City provided utilities shall be determined in the City's sole and absolute discretion, and SoCalGas agrees not to dispute the accuracy of any fee charged hereunder, either during the Term of the Agreement or at any time thereafter, on the basis that it exceeds the cost(s) actually incurred by City for SoCalGas' use of City provided utilities. SoCalGas shall not do anything, nor shall it permit anything to be done, that may interfere with the use, operation, enjoyment, effectiveness and accessibility of the existing City -owned building, furniture, fixtures, and/or equipment within the equipment room where the License Area is located. Further, SoCalGas shall not change or modify any of the existing City -owned building, furniture, fixtures, and/or equipment, including but not limited to the structural, electrical, mechanical, and/or plumbing systems of the building, including those located in the equipment room where the License Area is located, except as may be specifically permitted by any permit issued by the City. 13. INSPECTION City shall be entitled, at any time, without prior notice, to inspect the License Area and DCU for compliance with the terms of this Agreement, and with all applicable Federal, State and local (including those of the City) government regulations. 14. CITY RETENTION RIGHTS SoCalGas'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 SoCalGas's use of the License Area as provided herein. Southern California Gas Company Page 7 15. SOCALGAS'S RETENTION OF TITLE Title to the DCU placed on the License Area by SoCalGas shall be held by SoCalGas or its equipment lessors, successors, or assigns. The DCU shall not be considered a fixture. SoCalGas has the right to remove the DCU at its sole expense from time -to -time and in all events by the expiration of this License or within thirty (30) calendar days after an early termination of this License. 16. SURRENDER Upon expiration or termination of this Agreement, SoCalGas at its sole cost and expense, shall within thirty (30) calendar days of written notice from City, remove the DCU, restore the License Area to its original condition or to a condition satisfactory to and approved by City, and vacate the License Area. Should SoCalGas fail to restore the License Area to a condition satisfactory to City, City may perform such work or have such work performed by others and SoCalGas shall within sixty (60) calendar days reimburse City for all direct and indirect costs associated with such work upon receipt of an invoice for such costs. SoCalGas shall continue to pay the License Fee until the License Area is so restored as required by this Agreement. 17. ASSIGNMENT 17.1 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 the SoCalGas shall not be assigned, transferred, or hypothecated (collectively referred to as "transferred"), in whole or in part, without the express written consent of the City, which consent shall not be unreasonably withheld, delayed or conditioned and may be withheld if assignee is of lesser financial status than SoCalGas when this Agreement was executed. Any attempted transfer in violation of this Section shall be null and void. Except as provided below, the transfer of the rights and obligations of SoCalGas to any successor in interest or entity acquiring fifty-one percent (51%) or more of SoCalGas's stock or assets, shall be deemed an assignment requiring consent. SoCalGas shall provide City at least thirty (30) calendar days advance written notice of any proposed transfer. 17.2 If SoCalGas desires at any time to effect a transfer, it shall first deliver to City: (1) a written request for approval; (2) the name, address and most recent financial statements of the proposed transferee; and (3) the proposed instrument of assignment or sublease, which in the case of assignment shall include a written assumption by the assignee of all obligations of this Agreement arising from and after the effective date of assignment. City may approve or deny SoCalGas' transfer request in its sole and absolute discretion. 17.3 Notwithstanding Section 17.1 above, SoCalGas may, without prior approval from time -to -time, do any of the following: 17.3.1 Grant to any person or entity a security interest in some or all of SoCalGas's DCU which lien shall be subordinate and junior to this Agreement; Southern California Gas Company Page 8 17.3.2 Assign its rights hereunder: (i) to any entity which has, directly, or indirectly, a thirty percent (30%) or greater interest in SoCalGas (a "Parent") or in which SoCalGas or a Parent has a thirty percent (30%) or greater interest (an "Affiliate"); (ii) to any entity with which SoCalGas and/or any Affiliate may merge or consolidate; (iii) to a buyer of substantially all of the outstanding ownership units or assets of SoCalGas or any Affiliate; or (iv) to the holder or transferee of the FCC license under which the DCU is operated, upon FCC approval of any such transfer. Any such assignment shall be conditioned upon and not be effective until SoCalGas cures any defaults under this Agreement and the assignee signs and delivers to City a document in which the assignee accepts responsibility for all of SoCalGas's past, current and future obligations under the Agreement; and 17.3.3 No assignment by SoCalGas shall release SoCalGas from continuing liability under this Agreement with the exception of a buyout of the SoCalGas by another entity which formally assumes all past, current, and future obligations of SoCalGas under this Agreement. 18. TAXES 18.1 SoCalGas shall promptly pay all personal interest property taxes, real property taxes, fees and assessments which may at any time be imposed or levied by any public entity and attributable to the DCU authorized herein. City hereby gives notice to SoCalGas, 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 SoCalGas. 18.2 SoCalGas shall have the right in good faith, at its sole cost and expense, to contest the amount or legality of any Taxes on or attributable to this Lease, the Premises, SoCalGas' personal property, or SoCalGas' occupation and use of the Premises, including the right to apply for reduction. If SoCalGas seeks a reduction or contests such taxes, SoCalGas's failure to pay the Taxes shall not constitute a default as long as SoCalGas complies with the provisions of this Section. SoCalGas shall not be required to join in any proceeding or contest brought by SoCalGas unless the provisions of any law require that the proceeding or contest be brought by or in the name of City. In that case, City shall join in the proceeding or contest or permit it to be brought in City's name as long as City is not required to bear any cost. If requested by SoCalGas, City shall execute any instrument or document necessary or advisable in connection with the proceeding or contest. SoCalGas, on final determination of the proceeding or contest, shall immediately pay or discharge any decision or judgment rendered, together with all related costs, charges, interest and penalties. SoCalGas shall indemnify, defend and hold harmless the City, its elected or appointed officers, boards and commissions, officials, employees, agents and volunteers from and against any liability, claim, demand, penalty, cost or expense arising out of or in connection with any contest by SoCalGas pursuant to this Section. 18.3 Any payments under this Section 18 shall not reduce or offset License Fee payments. City has no liability for such payments. Southern California Gas Company Page 9 19. RELOCATION SoCalGas agrees that whenever any City improvements may be required (for example, the repair, maintenance, or redevelopment of the Property and/or the License Area), the City may require the relocation of the DCU to another location within the Property that is mutually acceptable to both City and SoCalGas. Such relocation shall be at SoCalGas's expense, without making any claim against the City for reimbursement or damage therefor. Except in the event of an emergency or other situation requiring immediate relocation of the DCU, City shall provide SoCalGas with not less than thirty (30) calendar days written notice of relocation specifying a date by which the relocation is to take place. City represents to SoCalGas that, as of the Effective Date, City has no current intention to relocate SoCalGas's DCU, nor does City have any knowledge of current facts that are likely to result in the relocation of SoCalGas's DCU. 20. TERMINATION SoCalGas shall remove the DCU at its sole expense within thirty (30) calendar days after the termination of the Agreement, unless a written agreement is otherwise reached between the City and SoCalGas to abandon the DCU in place. SoCalGas shall bear full responsibility for repairs to any damage to the Property caused by SoCalGas's or its employees', contractors', subcontractors' or agents' installation, construction, maintenance, repair, operation and removal of the DCU. The City may terminate this Agreement upon three hundred sixty-five days (365) prior written notice to SoCalGas. In the event of termination under this Section by City without cause, City shall issue a prorated refund to SoCalGas of the money paid under Section 5.1. 21. CONSTRUCTION 21.1 SoCalGas agrees to take all prudent action to protect the License Area and City Facilities from any damage or injury caused by any work performed by or on behalf of SoCalGas regarding the construction, installation, operation, inspection, maintenance, repair, reconstruction, replacement, relocation, or removal of the DCU or the failure, deterioration or collapse of such DCU. 21.2 SoCalGas shall, at its sole cost and expense, continually maintain and repair any damage to the License Area, to the extent such damage is caused by SoCalGas or any of its agents, representatives, employees, contractors, subcontractors, or invitees. SoCalGas shall immediately notify the City Manager 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. 21.3 Without limitation of any other remedy available hereunder or at law or in equity, if SoCalGas 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 SoCalGas shall reimburse City of all costs and expenses incurred in such repair or refinishing. 21.4 At all times when SoCalGas requires access to the License Area, SoCalGas shall provide City with five (5) days advanced written notice for City to provide escorted Southern California Gas Company Page 10 access. SoCalGas shall not access the License Area at any time without City's advanced escorted access. 22. BONDS 22.1 Prior to the installation of the DCU, SoCalGas shall, at its sole cost and expense, submit to the City for review and approval a Labor and Materials Bond using the form attached hereto as Exhibit "D," and incorporated herein by reference, or in a form acceptable to the City Attorney, in the amount of One Hundred Thousand Dollars ($100,000.00) to be in effect during the construction and installation of the DCU. 22.2 Prior to the installation of the DCU, SoCalGas shall, at its sole cost and expense, submit to the City for review and approval a Faithful Performance Bond using the form attached hereto as Exhibit "E", a letter of credit, or other security ("Security") in the amount of One Hundred Thousand Dollars ($100,000.00), to be effective throughout the Term of this Agreement plus ninety (90) calendar days thereafter, to ensure and secure faithful compliance with the conditions of this Agreement. The Security shall be in a form acceptable to the City Attorney. 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 DCU upon expiration or termination of this Agreement should SoCalGas fail to do so as required by this Agreement. The Security shall in no way limit the liability or obligations of SoCalGas or its insurers under this Agreement. If the funds represented by the Security become exhausted, SoCalGas shall immediately provide the City with a new security in the amount necessary to provide full required Security. 23. MAINTENANCE At its sole cost and expense, SoCalGas shall take reasonable care of the DCU and keep the License Area and DCU neat and clean and free from graffiti at all times. Should SoCalGas fail to commence required maintenance or repairs, or cleaning of the License Area to a condition satisfactory to City, within three (3) calendar days after receipt of notice to do so, City may perform such work or have such work performed by others and SoCalGas shall immediately reimburse City for all direct and indirect costs associated with such work upon receipt of an invoice for such costs. 24. INDEMNIFICATION 24.1 To the fullest extent permitted by law, SoCalGas 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, 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; collectively, "Claims"), to the extent arising from or in any manner relating (directly Southern California Gas Company Page 11 or indirectly) to SoCalGas's breach of the terms and conditions of this Agreement, any latent or patent defects in the design and construction of the DCU, or work thereon conducted under this Agreement including, without limitation, defects in workmanship or materials or SoCalGas's presence or performance of duties on the License Area (including the negligent and/or willful acts, errors and/or omissions of SoCalGas, its principals, officers, agents, employees, vendors, suppliers, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). 24.2 Notwithstanding the foregoing, nothing herein shall be construed to require SoCalGas to indemnify the Indemnified Parties from any Claim arising from the 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 SoCalGas. 25. DAMAGES SoCalGas acknowledges that City would not enter 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, SoCalGas covenants and agrees on behalf of itself and its successors and assigns, not to sue the City of Newport Beach (either in its capacity as lessor in this Lease 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 SoCalGas 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 SoCalGas sole and exclusive judicial remedies. 26. INSURANCE Without limiting SoCalGas's indemnification of City, and prior to commencement of work, SoCalGas shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described in Exhibit "F" of which is attached hereto and incorporated herein by this reference. Southern California Gas Company Page 12 27. HAZARDOUS SUBSTANCES 27.1 From the date of execution of this Agreement throughout the Term, SoCalGas shall not store, manufacture or maintain on the License Area or any Hazardous Substances except (i) in such quantities and types found customary in construction, repair, maintenance and operations of the DCU approved by this Agreement, (ii) natural gas, or petroleum and petroleum products contained within regularly operated motor vehicles. SoCalGas shall handle, store and dispose of all Hazardous Substances it brings onto the License Area or Property in accordance with applicable laws. 27.2 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 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. 27.3 Notwithstanding any contrary provision of this Agreement, and in addition to the indemnification duties of SoCalGas set forth in this Agreement, SoCalGas agrees to indemnify, defend with counsel reasonably acceptable to City, protect, and hold harmless the City, its elected or appointed officers, boards and commissions, officials„ employees, agents and volunteers 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 appointed or elected officers, boards and commissions, officials, employees, agents and volunteers may sustain or incur or which may be imposed upon them in connection with the use of the License Area Southern California Gas Company Page 13 provided under this Agreement by SoCalGas, to the extent arising from or attributable to the storage or deposit of Hazardous Substances on or under the License Area by SoCalGas. 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. 27.4 City agrees that City 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 SoCalGas 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, SoCalGas 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 SoCalGas. 28. COMPLIANCE WITH LAWS 28.1 SoCalGas, 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 DCU and License Area, or the use thereof, including all RF safety standards, Americans with Disability Act requirements, applicable zoning ordinances, building codes and environmental laws. SoCalGas shall not occupy or use the DCU and License Area or permit any portion of the DCU 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. 28.2 All SoCalGas's use of the Property under this Agreement shall be in accordance with the laws of the United States of America, the State of California and in accordance with its franchise agreement and all applicable rules and regulations and ordinances of the City now in force, or hereinafter prescribed or promulgated by resolution or ordinance or by State or Federal law. 29. NOT AGENT OF CITY Nothing contained in this Agreement shall be deemed or construed to create the relationship of principal and agent or of partnership or of joint venture or of any association whatsoever between City and SoCalGas, it being expressly understood and agreed that neither the computation of fees nor any other provisions contained in this Agreement nor any act or acts of the Parties hereto shall be deemed to create any relationship between City and SoCalGas other than the relationship of City and SoCalGas. Southern California Gas Company Page 14 30. NO THIRD -PARTY BENEFICIARIES City and SoCalGas 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. 31. 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 Party 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: To City: City Manager City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 With a copy to: Real Property Administrator City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 To SoCalGas: Southern California Gas Company 555 West Fifth Street Los Angeles, CA 90013 Attn: David Mercer, Network Technology Manager Tel: (213) 244-5415 32. PREVAILING WAGE Pursuant to the applicable provisions of the Labor Code of the State of California, not less than the general prevailing rate of per diem wages including legal holidays and overtime work for each craft or type of workman needed to execute the work contemplated under the Agreement shall be paid to all workmen employed on the work to be done according to the Agreement by SoCalGas and any subcontractor. In accordance with the California Labor Code (Sections 1770 et seq.), the Director of Industrial Relations has ascertained the general prevailing rate of per diem wages in the locality in which the work is to be performed for each craft, classification, or type of workman or mechanic needed to execute the Agreement. A copy of said determination is available by calling the prevailing wage hotline Southern California Gas Company Page 15 number (415) 703-4774, and requesting one from the Department of Industrial Relations. SoCalGas is required to obtain the wage determinations from the Department of Industrial Relations and post at the job site the prevailing rate or per diem wages. It shall be the obligation of SoCalGas or any subcontractor under it to comply with all State of California labor laws, rules and regulations and the parties agree that the City shall not be liable for any violation thereof. Work performed directly by SoCalGas's employees falls within the exception of Labor Code Section 1720(a)(1) and does not constitute a public work under Section 1720(a)(2) and is not subject to prevailing wages. SoCalGas shall verify compliance with this requirement in the administration of its contracts for any work referenced herein. 33. TIME IS OF THE ESSENCE Time is of the essence for this Agreement. 34. STANDARD PROVISIONS 34.1 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. 34.2 Integrated Contract. 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. Each Party has relied on advice from its own attorneys, and the warranties, representations, and covenants of this Agreement itself. This Agreement shall inure to the benefit of and be binding upon the Parties hereto and their respective successors and assigns. 34.3 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and any other attachments attached hereto, the terms of this Agreement shall govern. 34.4 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. 34.5 Amendments. This Agreement may be modified or amended only by a written document executed by both SoCalGas and City and approved as to form by the City Attorney. Southern California Gas Company Page 16 34.6 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. 34.7 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. 34.8 Equal Opportunity Employment. SoCalGas 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. 34.9 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. 34.10 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. 34.11 Exhibits. All exhibits attached to this Agreement are hereby incorporated by reference herein. [SIGNATURES NEXT PAGE] Southern California Gas Company Page 17 IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed in duplicate on the dates indicated below. APPROVED AS TO FORM: THE CITY ATTORNEY'S OFFICE Date: % Z I / Z -o2 By: Oi� _Z____P Aaron C. Harp City Attorney b�.ap ATTEST: Date: By: y Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, A California municipal corporation Date: SEP 0 2 2021 By: Grace . eung City ager SOUTHERN CALIFORNIA GAS COMPANY, a California corporation Date: • -• in Counterpart AS JTl By. %Z�iFoa% Exhibit A: Exhibit B: Exhibit C Exhibit D Exhibit E: Exhibit F: Dave Mercer Network Deployment Manager Advanced Meter Project [END OF SIGNATURES] Depiction of Coastal Peak Park ("Property") License Area Improvement Plans Labor and Materials Bond Faithful Performance Bond Insurance Requirements Southern California Gas Company Page 18 IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed in duplicate on the dates indicated below. APPROVED AS TO FORM: THE CITY ATTORNEY'S OFFICE Date: % Z ) / ?-v Z L By: a,( _Z___ A._v Aaron C. Harp City Attorney ATTEST: Date: By: Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, A California municipal corporation Date: By: Grace K. Leung City Manager SOUTHERN CALIFORNIA GAS COMPANY, a California corporation Date: g 2 -2- By: _ Dave Mercer Network Deployment Manager Advanced Meter Project [END OF SIGNATURES] Exhibit A: Depiction of Coastal Peak Park ("Property") Exhibit B: License Area Exhibit C: Improvement Plans Exhibit D: Labor and Materials Bond Exhibit E- Faithful Performance Bond Exhibit F: Insurance Requirements - -- - -- - - - -- ---------- a --- Southern _- Southern California Gas Company Page 18 Exhibit "A" Depiction of Coastal Peak Park ("Property") Southern California Gas Company Page A-1 Exhibit "A" Depiction of Coastal Peak Park ("Property") Southern California Gas Company Page A-2 LEGAL DESCRIPTION COASTAL PEAK PARK 20403 East Coastal Peak, Newport Beach, CA 92657 A.P.N. 478-451-04 IN THE UNINCORPORATED TERRITORY OF ORANGE COUNTY, STATE OF CALIFORNIA, BEING A PORTION OF BLOCK 134 OF THAT CERTAIN MAP FILED FOR RECORD AS IRVINE'S SUBDIVISION IN BOOK NUMBER 1 ON PAGE 88 OF MISCELLANEOUS RECORD MAPS, RECORDS OF SAID ORANGE COUNTY AND MORE PARTICULARLY DESCRIBED AS FOLLOWS: PARCEL I: BEGINNING AT THE NORTHEASTERLY TERMINUS OF THAT CERTAIN COURSE IN THE NORTHWESTERLY LINE OF CRYSTAL COVE; STATE PARK AS SHOWN ON A MAP ENTITLED "RECORD OF SURVEY NUMBER 88-1069" FILED IN BOOK 120 AT PAGES 36 THROUGH 41, INCLUSIVE OF RECORD OF SURVEY, RECORDS OF SAID ORANGE COUNTY HAVING A BEARING AND DISTANCE OF NORTH 37028'34" EAST 274.14 FEET, FOR THE PURPOSES OF THIS DESCRIPTION THE BEARING OF SAID COURSE IS ASSUMED TO BE NORTH 36°58'45" EAST; THENCE TRAVERSING THE INTERIOR OF SAID BLOCK 134 SOUTH 71051133" WEST 16.14 FEET; THENCE SOUTH 59003111" WEST 14.59 FEET; THENCE SOUTH 50°55'29" WEST 12.89 FEET; THENCE SOUTH 45°01109" WEST 1.1.50 FEET; THENCE SOUTH 63°27101" WEST 18.18 FEET; THENCE SOUTH 85°50135" WEST 34.49 FEET; THENCE SOUTH 69°47115" WEST 12.66 FEET; THENCE SOUTH 78°41' 51" WEST 1.9.14 FEET; THENCE SOUTH 62022'11" WEST 14.83 FEET; THENCE SOUTH 58111'23" WEST 21.35 FEET; THENCE SOUTH 46°24159" WEST 18.13 FEET; THENCE SOUTH 70°.17' 02" WEST 19.83 FEET; THENCE SOUTH 56"19'39" WEST 23.58 FEET; THENCE SOUTH 45°42134" WEST 22.58 FEET; THENCE SOUTH 63027101" WEST 24.95 FEET; THENCE SOUTH 74°29' 09" WEST 7.19 FEET; THENCE NORTH 88029137" WEST 43.88 FEET; THENCE SOUTH 14°02' 43" WEST 11.10 FEET; THENCE SOUTH 81038141" WEST 29.41 FEET; THENCE SOUTH 24000'57" WEST 15.35 FEET; THENCE NORTH 81039105" WEST 31.01 FEET; THENCE SOUTH 78027144" WEST 16.84 FEET; THENCE SOUTH 69033104" WEST 26.40 FEET; THENCE SOUTH 64°08' 49" WEST 54.41 FEET; THENCE NORTH 46004'30" EAST 18.27 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHWESTERLY HAVING A RADIUS OF 426.50 FEET SAID POINT BEING HEREINAFTER REFERED TO AS POINT "A"; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE 270.71 FEET THROUGH A CENTRAL ANGLE OF 36°22101" TO THE END OF SAID CURVE; THENCE NON— TANGENT TO SAID CURVE NORTH 53°41122" EAST 31.27 FEET; THENCE NORTH 82055110" EAST 54.04 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHERLY HAVING A RADIUS OF 88.50 FEET; THENCE Southern California Gas Company Page A-3 EASTERLY 65.40 FEET ALONG THE ARC OF SAID CURVE 'THROUGH A CENTRAL ANGLE OF 42020'19" TO A POINT OF REVERSE CURVE WITH A CURVE HAVING A RADIUS OF 49.50 FEET; THENCE EASTERLY AND NORTHEASTERLY 111.11 FEET ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 128036137" TO A POINT; THENCE RADIAL TO LAST SAID CURVE NORTH 86038152" EAST 9.66 FEET TO A POINT; THENCE SOUTH 38°41' 28" EAST 147.27 FEET TO THE POINT OF BEGINNING. CONTAINING 1.28 ACRES MORE OR LESS. PARCEL II: COMMENCING AT POINT "A" AS DESCRIBED HEREINABOVE; THENCE NORTH 43055'30" WEST 58.00 FEET TO THE TRUE POINT OF BEGINNING OF THE PARCEL HEREIN DESCRIBED SAID POINT BEING THE BEGINNING OF A CURVE CONCAVE NORTHWESTERLY HAVING A RADIUS OF 368.50 FEET, A RADIAL BEARING TO SAID CURVE THROUGH SAID POINT BEARS NORTH 43055'30" WEST; THENCE NORTHEASTERLY 204.20 FEET ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 31044'57" TO THE END OF SAID CURVE; THENCE NON --TANGENT TO SAID CURVE NORTH 38°41133" WEST 37.54 FEET TO A POINT ON A CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 1231.50 FEET A RADIAL BEARING THROUGH SAID POINT BEARS NORTH 0142'38" WEST; THENCE WESTERLY 497.18 FEET ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 23°07'53" TO A POINT; THENCE NON—TANGENT TO SAID CURVE NORTH 87"10'44" WEST 45.73 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHEASTERLY HAVING A RADIUS OF 23.32 FEET; THENCE SOUTHWESTERLY AND SOUTHERLY 47.06 FEET ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 115037'30" TO THE BEGINNING OF A NON—TANGENT CURVE CONCAVE WESTERLY HAVING A RADIUS OF 656.21 FEET, A RADIAL TO SAID CURVE BEARS NORTH 84043110" WEST; THENCE SOUTHERLY 226.66 FEET ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 19°47'26" TO THE END OF SAID CURVE; THENCE NON -TANGENT TO SAID CURVE SOUTH 16052107" WEST 97.55 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE WESTERLY HAVING A RADIUS OF 644.26 FEET; THENCE SOUTHERLY 271.20 FEET ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 24007'06" TO A POINT OF REVERSE CURVE WITH A CURVE HAVING A RADIUS OF 253.35 FEET; THENCE SOUTHERLY 66.11 FEET ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 14057104" TO A POINT OF COMPOUND CURVE WITH A CURVE HAVING A RADIUS OF 108.24 FEET; THENCE SOUTHERLY 25.:6 FEET ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 13019107" TO A POINT OF REVERSE CURVE WITH A CURVE HAVING A RADIUS OF 388.47 FEET; THENCE SOUTHERLY 112.99 FEET ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 16°39'52" TO A POINT OF REVERSE CURVE WITH A CURVE LAVING A Southern California Gas Company Page A-4 RAD=US OF 54.51 FEET; THENCE SOUTHERLY 40.1? FEET ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 42°09'33" TO A POINT OF REVERSE CURVE WITH A CURVE HAVING A RADIUS OF 158.98 FEET; THENCE SOUTHERLY 70.91 FEET ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 25033117" TO A POINT OF REVERSE CURVE WITH A CURVE HAVING A RADIUS OF 4429.27 F"r.'ET; THENCE SOUTHERLY 37.26 FEET ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 00028155" TO A POINT OF COMPOUND CURVE WITH A CURVE HAVING A RADIUS 31.89 FEET; THENCE SOUTHERLY AND EASTERLY 35.53 FEET ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 63049'45" TO THE END OF SAID CURVE; THENCE NON—TANGENT TO SAID CURVE SOUTH 59048'56" EAST 176.84 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 248.13 FEET; THENCE EASTERLY 143.98 FEET ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 33014'44" TO A POINT ON A NON—TANGENT CURVE CONCAVE WESTERLY HAVING A RADIUS OF 428.50 FEET A RADIAL TO SAID CURVE BEARS NORTH 60°29122" WEST; THENCE NORTHERLY 97.70 FEET ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 13022'31" TO THE END OF SAID CURVE; THENCE TANGENT TO SAID CURVE NORTH 16°08'07" EAST 185.17 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE EASTERLY HAVING A RADIUS OF 631.50 FEET; THENCE NORTHERLY 329.99 FEET ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 29°56'23" TO THE END OF SAID CURVE; THENCE TANGENT TO SAID CURVE NORTH 46004130" EAST 324.03 FEET TO THE TRUE POINT OF BEGINNING. CONTAINING 9.90 ACRES MORE OR LESS. Southern California Gas Company Page A-5 Exhibit "B" License Area Southern California Gas Company Page B-1 Exhibit "B" License Area NM49 N E W P U n i U E R C H EwWr""a rs'ff'f5�ir'�T`� WLicense Area Southern California Gas Company Page B-2 Disclaimer: 0 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 0 40 80 disclaim any and all responsibility from or relating to any results obtained in its use. Feet 527i202o Southern California Gas Company Page B-2 U, License Area — Interior 2.94 Sq. Ft. 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LL 0 < L�j C-4 F- C) U) z > �2 0 F— B 0 w LU 0 > ------ C) z w Z z co 0 co w LL C/) u,—) w L \)0 > Z 0 L2 < P co M co C) < �w 00 0 a: El ,j (n 3: z t C� 0 < z c < 0 co U- Q 0 11 < z IL 0 z 0 z (o E W E {))$ Z Lli 0111 0 F - — T 0 w �- 0- Z: ') w L Exhibit "D" Labor and Materials Bond CITY OF NEWPORT BEACH BOND NO. LABOR AND MATERIALS BOND WHEREAS, Tenant /SoCalGas, as Tenant of the City of Newport Beach, State of California, has awarded to [Contractor] hereinafter designated as the "Principal," a contract for the work necessary for the completion of this contract consists of: It is CONTRACTOR's responsibility to verify all controlling field dimensions before ordering or fabricating any material in the City of Newport Beach, in strict conformity with the Contract on file with Tenant /SoCalGas and the office of the City Clerk of the City of Newport Beach, which is incorporated herein by this reference. WHEREAS, Principal has executed or is about to execute the Contract and the terms thereof require the furnishing of a bond, providing that if Principal or any of Principal's subcontractors, shall fail to pay for any materials, provisions, or other supplies used in, upon, for, or about the performance of the Work agreed to be done, or for any work or labor done thereon of any kind, the Surety on this bond will pay the same to the extent hereinafter set forth. NOW, THEREFORE, We the undersigned Principal, and, duly authorized to transact business under the laws of the State of California, as Surety, (referred to herein as "Surety") are held and firmly bound unto the City of Newport Beach, in the sum of One Hundred Thousand Dollars and 00/100 ($100,000.00) lawful money of the United States of America, said sum being equal to 100% of the estimated amount payable by the Tenant /SoCalGas, of the City of Newport Beach under the terms of the Contract; for which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors, or assigns, jointly and severally, firmly by these present. THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal or the Principal's subcontractors, fail to pay for any materials, provisions, or other supplies, implements or machinery used in, upon, for, or about the performance of the Work contracted to be done, or for any other work or labor thereon of any kind, or for amounts due under the Unemployment Insurance Code with respect to such work or labor, or for any amounts required to be deducted, withheld and paid over to the Employment Development Department from the wages of employees of the Principal and subcontractors pursuant to Section 13020 of the Unemployment Insurance Code with respect to such work and labor, then the Surety will pay for the same, in an amount not exceeding the sum specified in this Bond, and also, in case suit is brought to enforce the obligations of this Bond, a reasonable attorneys' fee, to be fixed by the Court as required by the provisions of Section 9554 of the Civil Code of the State of California. Southern California Gas Company Page D-1 The Bond shall inure to the benefit of any and all persons, companies, and corporations entitled to file claims under Section 9100 of the California Civil Code so as to give a right of action to them or their assigns in any suit brought upon this Bond, as required by and in accordance with the provisions of Sections 9500 et seq. of the Civil Code of the State of California. And Surety, for value received, hereby stipulates and agrees that no change, extension of time, alterations or additions to the terms of the Contract or to the Work to be performed thereunder shall in any wise affect its obligations on this Bond, and it does hereby waive notice of any such change, extension of time, alterations or additions to the terms of the Contract or to the Work or to the specifications. In the event that any principal above named executed this Bond as an individual, it is agreed that the death of any such principal shall not exonerate the Surety from its obligations under this Bond. IN WITNESS WHEREOF, this instrument has been duly executed by the above named Principal and Surety, on the day of 20 Name of Contractor (Principal) Name of Surety Address of Surety Telephone Authorized Signature/Title Authorized Agent Signature Print Name and Title NOTARY ACKNOWLEDGMENTS OF CONTRACTOR AND SURETY MUST BE ATTACHED Southern California Gas Company Page D-2 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of }ss. On 20 before me, Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (seal) ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of }ss. On 20 before me, Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature Southern California Gas Company Page D-3 Exhibit "E" Faithful Performance Bond CITY OF NEWPORT BEACH BOND NO. FAITHFUL PERFORMANCE BOND The premium charges on this Bond is $ WHEREAS, the City of Newport Beach, State of California, has entered into a License Agreement ("Agreement") with Southern California Gas Company hereinafter designated as the "Principal," a license to install an Advanced Meter Data Collector Unit ("DCU") described and depicted in Attachment 1 ("Improvement Plans") at the Coastal Peak Park, as further described and depicted in Attachment 2 (the "License Area"), in the City of Newport Beach, in strict conformity with the License and any Amendment thereto on file with the office of the City Clerk of the City of Newport Beach, which is incorporated herein by this reference. WHEREAS, Principal has executed or is about to execute the License Agreement or any Amendment thereto and the terms thereof require the furnishing of a Bond for the faithful performance of the License Agreement. NOW, THEREFORE, we, the Principal, and duly authorized to transact business under the laws of the State of California as Surety (hereinafter "Surety"), are held and firmly bound unto the City of Newport Beach, in the sum of One Hundred Thousand Dollars and 00/100 ($100,000.00) lawful money of the United States of America, said sum being equal to 100% of the estimated cost of repairs and removal of the DCU under the Agreement and any Amendment thereto, to be paid to the City of Newport Beach, its successors, and assigns; for which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors, or assigns, jointly and severally, firmly by these present. THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal, or the Principal's heirs, executors, administrators, successors, or assigns, fail to abide by, and well and truly keep and perform any or all the covenants, conditions, and agreements in the Agreement and any Amendment thereto and any alteration thereof made as therein provided on its part, to be kept and performed at the time and in the manner therein specified, and in all respects according to its true intent and meaning, or fails to indemnify, defend, and save harmless the City of Newport Beach, its officers, employees and agents, as therein stipulated, then, Surety will faithfully perform the same, in an amount not exceeding the sum specified in this Bond; otherwise this obligation shall become null and void. As a part of the obligation secured hereby, and in addition to the face amount specified in this Performance Bond, there shall be included costs and reasonable expenses and fees, including reasonable attorney's fees, incurred by City, only in the event City is Southern California Gas Company Page F-1 required to bring an action in law or equity against Surety to enforce the obligations of this Bond. Surety, for value received, stipulates and agrees that no change, extension of time, alterations or additions to the terms of the Agreement and any Amendment thereto or to the covenants, conditions, and agreements to be performed thereunder shall in any way affect its obligations on this Bond, and it does hereby waive notice of any such change, extension of time, alterations or additions of the Agreement and any Amendment thereto. This Faithful Performance Bond shall be extended and maintained by the Principal in full force and effect for the Term of the Agreement plus ninety (90) calendar days thereafter. In the event that the Principal executed this bond as an individual, it is agreed that the death of any such Principal shall not exonerate the Surety from its obligations under this Bond. IN WITNESS WHEREOF, this instrument has been duly executed by the Principal and Surety above named, on the day of 720 Name of Contractor (Principal) Name of Surety Address of Surety Telephone APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: By: Aaron C. Harp City Attorney Authorized Signature/Title Authorized Agent Signature Print Name and Title NOTARY ACKNOWLEDGMENTS OF CONTRACTOR AND SURETY MUST BE ATTACHED Southern California Gas Company Page E-2 Attachments: Attachment 1 — Improvement Plans Attachment 2 —License Area Southern California Gas Company Page E-3 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of }ss. On 20 before me, Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (seal) ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of }ss. On 20 before me, Notary Public, personally appeared proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. 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O = O (n m Y �j; -�N�o LLJ} C3 J p= 3j m OLLJ vW C7 x U 1.._. N: J W W Z N Q c0 J In m Z } Z M S Z Z QLj W a w w a= N w O~ UZ Z��Z O?aYJ Fw- w: H I W LLJ a N U x Q Q m Z Q U W d O w O O= 0 Q J O Z U w 0 3 0 Z U U_j LLJQ(n UOUd d Q UOUcn w J W N M 4 M L6 n c6 T c m E U m m E 0 U E co 5 z /)w3w: Z 0 0 0 C) E 0. 4i z 0 'w g. o LU CN 'o uj 0 ou C) w 0W. LL 0 < C) < 0 > < co 0 w LLJ > U) 4t C) w z _j co z 0 U) C) :D C/) F- LLI <LL U) U) C F - 0 w z W, 0 �Z- > Z, OT C:) < 0 z 0 N C6 = D) < L: U) >- 2:: 0 OD C:) z �w Q N 0 o U) 0 z W z 0 W 0 0 U) z <'0 0 C) Z x LLJ z o z G:3) 0 2 — � �- W w 0 C) CL I 0 LL ') z 0 Iƒ/\ w L }\)/ Attachment 2 License Area Southern California Gas Company Page E-6 Attachment 2 License Area Mwn NEVN L w Ii H t H 4 'IN L H Southern California Gas Company License Area JV W\ V-1 Disclaimer: 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 40 80 any results obtained in its use. Feet E3 License Area — Interior 2.94 Sq. Ft. (DCU Box, AC Safety Switch, Junction Box) Southern California Gas Company Exhibit "F" Insurance Requirements Provision of Insurance. Without limiting SoCalGas's indemnification of City, and prior to commencement of work on City property, including the License Area and Coastal Peak Park by SoCalGas or SoCalGas's agents, representatives, consultants, contractors and/or subcontractors, SoCalGas 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. SoCalGas agrees to provide insurance in accordance with requirements set forth here. If SoCalGas uses existing coverage to comply and that coverage does not meet these requirements, SoCalGas agrees to amend, supplement or endorse the existing coverage. 2. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the insurance commissioner to transact business of insurance in the State of California, with an assigned policyholders' rating of A - (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 3. Self -Insurance. Notwithstanding the above, SoCalGas shall have the right to self - insure pursuant to the coverages required in this Exhibit F. In the event SoCalGas elects to not self -insure, SoCalGas shall be obligated to include City as an additional insured, and in addition to the provisions set forth in Sections 4-6 of this Exhibit F, the following provisions shall apply: a. City shall promptly provide SoCalGas written notice of any claim, demand, or lawsuit, for which it seeks coverage pursuant to this Section, and provide SoCalGas with copies of any demands, notices, summonses, or legal papers received in connection with such claim, demand, or lawsuit; b. City shall not settle any such claim, demand, or lawsuit without prior written notice to SoCalGas; and c. City shall fully cooperate with SoCalGas in the defense of such claim, demand, or lawsuit. 4. Coverage Requirements. A. Workers' Compensation Insurance. SoCalGas and SoCalGas's agents, representatives, consultants, contractors and/or subcontractors, 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 Southern California Gas Company Page F-1 for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. SoCalGas and SoCalGas's agents, representatives, consultants, contractors and/or subcontractors, shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. B. General Liabilitv Insurance. SoCalGas and SoCalGas's agents, representatives, consultants, contractors and/or subcontractors, 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 two million dollars and 00/100 ($2,000,000) per occurrence, four million dollars and 00/100 ($4,000,000) general aggregate. The policy shall cover liability arising from License Area, 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. C. Automobile Liability Insurance. SoCalGas and SoCalGas consultants, contractors and/or subcontractors 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 SoCalGas or all activities of SoCalGas's consultants, contractors and/or subcontractors arising out of or in connection with work to be performed on the License Area, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars and 00/100 ($1,000,000) combined single limit each accident. D. All Risk Property Insurance. During construction, SoCalGas shall or shall cause its construction contractors and/or subcontractors to carry and maintain property insurance or an installation floater covering damages to the work for "all risk" or special causes of loss form with limits equal to one hundred percent (100%) of the completed value of the work, with coverage to continue until final acceptance of the work by SoCalGas. City shall be included as an additional insured on such policy as their interests may appear, and SoCalGas shall provide City with a copy of the policy. 5. Endorsements: Policies shall contain or be endorsed to contain the following provisions: A. Additional Insured Status. City, its elected or appointed officers, boards and commissions, officials, employees, agents and volunteers are to be covered as an additional insured under all general liability policies with respect to Southern California Gas Company Page F-2 liability arising out of SoCalGas's activities related to this Agreement and with respect to use or occupancy of the License Area. City, its elected or appointed officers, boards and commissions, officials, employees, agents and volunteers shall be named as an additional insured on any of SoCalGas's contractor's and subcontractor's policies. B. Primary and Non Contributory. Policies shall be considered primary insurance as respects to City, its elected or appointed officers, boards and commissions, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from SoCalGas's operations. Any insurance maintained by City, including any self-insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. C. Liability Insurance. Liability insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. D. 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, boards and commissions, officials, employees, agents and volunteers or shall specifically allow SoCalGas or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. SoCalGas hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its consultants, contractors or subcontractors. E. Reporting Provisions. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, boards and commissions, officials, employees, agents and volunteers. F. Notice of Cancellation. The insurance required by this Agreement shall not be suspended, voided, canceled, or reduced in coverage or in limits except after thirty (30) calendar days (ten (10) calendar days written notice of non- payment of premium) written notice has been received by City. It is SoCalGas's obligation to ensure that provisions for such notice have been established. 6. Additional Requirements. A. In the event City determines that (i) the SoCalGas's activities on the License Area creates an increased or decreased risk of loss to the City, (ii) greater insurance coverage is required due to the passage of time, or (iii) changes in the industry require different coverage be obtained, SoCalGas agrees that the minimum limits of any insurance policy required to be obtained by SoCalGas Southern California Gas Company Page F-3 or SoCalGas's consultants, contractors or subcontractors, may be changed accordingly upon receipt of written notice from City. With respect to changes in insurance requirements that are available from SoCalGas's then -existing insurance carrier, SoCalGas shall deposit certificates evidencing acceptable insurance policies with City incorporating such changes within thirty (30) calendar days of receipt of such notice. With respect to changes in insurance requirements that are not available from SoCalGas's then- existing insurance carrier, SoCalGas shall deposit certificates evidencing acceptable insurance policies with City, incorporating such changes, within ninety (90) calendar days of receipt of such notice. B. Any deductibles applicable to the insurance purchased in compliance with the requirements of this section shall be approved by City. C. SoCalGas and SoCalGas's consultants, contractors and/or subcontractors shall be subject to the insurance requirements contained herein unless otherwise specified in the provisions above or written approval is granted by the City. SoCalGas shall verify that all consultants, contractors and/or subcontractors maintain insurance meeting all the requirements stated herein, and SoCalGas shall ensure that City is an additional insured on insurance required from contractors, consultants and/or subcontractors. D. For General Liability coverage, contractors, consultants and/or subcontractors shall provide coverage with a format at least as broad as provided by Insurance Services Office form CG 20 38 04 13. E. SoCalGas shall give City prompt and timely notice of any claim made or suit instituted arising out of or resulting from SoCalGas or SoCalGas's agents, representatives, consultants, contractors or subcontractors performance under this Agreement. F. SoCalGas shall have the option to self -insure any of the above insurance coverages. SoCalGas shall provide certificates of insurance, with original endorsements as required above, to City as evidence of the insurance coverage required herein, and confirming the self-insured retention applies in the same manner and to the same extent as the insurance coverage required herein. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. G. All required insurance shall be in force on the Effective Date, and shall be maintained continuously in force throughout the term of this Agreement. In addition, the cost of all required insurance shall be borne by SoCalGas or by SoCalGas's consultants, contractors or subcontractors. H. If SoCalGas or SoCalGas's consultants, contractors or subcontractors fails or refuses to maintain insurance as required in this Agreement, or fail to provide Southern California Gas Company Page F-4 proof of insurance upon request from the City, City has the right to declare this Agreement in default without further notice to SoCalGas, and City shall be entitled to exercise all available remedies. Southern California Gas Company Page F-5 �EWPpar City of Newport Beach Insurance Compliance PO Box 100085 - FV ..... � r Duluth, GA 30096 October 11, 2021 Southern California Gas Company 555 West Fifth Street Los Angeles, CA 90013 Reference Number: FV00000632 This Account has moved from non-compliant to COMPLIANT status and currently in compliance for certificate of insurance requirements. As of the date above, your insurance meets City of Newport Beach insurance requirements. We appreciate your efforts and those of your insurance agent in working with our insurance representatives. Please call us at (951) 766-2285 if you have any questions. Sincerely, City of Newport Beach Compliant Notice [CA1]