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2022-06-21; City Council; Resolution 2022-150
RESOLUTION NO. 2022-150 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AUTHORIZING THE CITY MANAGER TO EXECUTE A LICENSE AGREEMENT WITH CABRILLO POWER I, LLC (NRG) FOR USE OF THE ENCi NA POWER STATION PROPERTY AS THE TEMPORARY LOCATION FOR FIRE STATION NO. 7 (APN: 210-010-47-00) EXHIBIT 1 WHEREAS, In March of 2021, the City Council identified as one of their four priority goals for fiscal year 2021-22, to "Bring the Fire Department into conformance with the Standards of Coverage evaluation;" and WHEREAS, on May 11, 2021, City Council approved Resolution No. 2021-111, approving Work Plan Option lA and authorized the use of General Fund reserves and other funding sources to achieve the City Council goal, of which Objective No. 2 is to locate and staff a temporary Fire Station No. 7 in the area of Cannon Road west of lnterstate-5 and occupy the facility by January 2023; and WHEREAS the temporary Fire Station No. 7 use required the approval of a Conditional Use Permit (mobile buildings) reviewed and issued by the City Planner and a Coastal Development Permit reviewed and issued by the California Coastal Commission. The CUP (CUP 2021-0018) was approved by the City Planner on Dec. 20, 2021, and the CDP was approved by the California Coastal Commission on May 11, 2022; and WHEREAS Cabrillo Power I, LLC (NRG) is the owner of 95 acres of land located on the east side of Carlsbad Boulevard, north of Cannon Road (4600 Carlsbad Boulevard). The property was the location of the Encina Power Station that operated continuously on the property from 1954 until the end of 2018;and WHEREAS, NRG and the city have agreed to a six-year license agreement (Agreement), with two one-year extension options to locate temporary sleeping quarters and sprung structures for temporary Fire Station No. 7 on a portion of the property located at 4600 Carlsbad Boulevard (APN 210-010-47- 00); and WHEREAS, the Agreement provides for an initial base rent payment of $2,500 per month (or $30,000 per year), subject to 3% annual increases during the initial six-year of the agreement, with two, one-year extension options; and WHEREAS, the proposed temporary fire station sleeping quarter structures will consist of two temporary buildings 1,782 square feet and 1,404 square feet in size. These two sleeping quarter June 21, 2022 Item #10 Page 7 of 107 structures will accommodate up to seven fire department personnel and contain two offices. The temporary parking garage (sprung structure) is 3,200 square feet in size and will house an ambulance, lifeguard rescue watercraft, and other fire department apparatus and equipment; and WHEREAS, the Agreement also allows for a lay down and training area, as well as access to and use of certain portions of the property adjacent to the Agua Hedionda Lagoon shoreline in order to dock a rescue watercraft and for the occasional docking of a police patrol boat of up to 24 feet in length; and WHEREAS, the Agreement includes two provisions related to the future redevelopment of the power plant site that address a priority processing schedule and a staff recommendation of finished grade and support for building height being measured from the approved finished grade for potential future development on the property; and WHEREAS, the City Council of the City of Carlsbad has determined that it is in the best interest of the city to enter into a License Agreement with NRG for Temporary Fire Station 7; and WHEREAS, the City Council has further determined that it accepts the terms of the License Agreement with NRG. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as follows: 1.That the above recitations are true and correct. 2.That the City Manager is hereby authorized to execute the License Agreement with Cabrillo Power I, LLC, attached hereto as Attachment A, and to act on behalf of the City of Carlsbad in all future decisions and actions necessary to implement the License Agreement with Cabrillo Power I, LLC for use of city owned property located at APN: 210-010-47-00, including any extension options, and to do so in full compliance with the terms and conditions expressed in the aforementioned Agreement and to the satisfaction of the City Attorney. June 21, 2022 Item #10 Page 8 of 107 PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 21st day of June, 2022, by the following vote, to wit: AYES: NAYS: ABSENT: Hall, Blackburn, Bhat-Patel, Acosta, Norby. None. None. MATT HALL, Mayor f/ FAVIOLA MEDINA, City Clerk Services Manager (SEAL) June 21, 2022 Item #10 Page 9 of 107 SMRH:4857-5235-1752.26 June 21, 2022 Attachment A LICENSE AGREEMENT by and between CABRILLO POWER I LLC, as licensor And CITY OF CARLSBAD, as licensee ,j\l 'N l. l, , 2022 Item #10 0XSN-323207 Page 10 of 107 TABLE OF CONTENTS ARTICLE l -GRANT AND RESERVATION OF RIGHTS .................................................... 1 1.1 License .................................................................................................................... 1 1.2 Grant of Additional Licenses .................................................................................. 2 1.3 Additional Definitions ............................................................................................ 4 1.4 Reservation of Licensor Rights ............................................................................... 5 1.5 Relocation Obligations of Licensee ........................................................................ 5 1.6 Removal .................................................................................................................. 6 AR TI CLE 2 -TERM ................................................................................................................... 6 2.1 Initial Term ............................................................................................................. 6 2.2 Options to Extend ................................................................................................... 6 2.3 Additional Definitions ............................................................................................ 7 ARTICLE 3 -LICENSE FEE ...................................................................................................... 7 3.1 Basic License Fee In General ................................................................................. 7 3.2 Basic License Fee During the Initial Term ............................................................. 8 3.3 Basic License Fee During Any Extended Term ..................................................... 8 3.4 Additional License Fee ........................................................................................... 8 ARTICLE4 -DEVELOPMENT, CONSTRUCTION AND ALTERATION OF THE LICENSEE IMPROVEMENTS ......................................................................................... 9 4.1 Additional Definitions ............................................................................................ 9 4.2 General Provisions Relating To the Licensee Improvements ................................. 9 4.3 Design, Development and Permitting Matters ...................................................... 10 4.4 Construction Matters ............................................................................................. 11 4.5 Alterations ............................................................................................................. 12 AR TI CLE 5 -OTHER MATTERS RELATING TO PROPERTY OF LICENSOR ................ 13 5.1 Construction At, Or Modification or Dismantlement of, Licensor Property ........ 13 5.2 Connection To Electrical System and Utilities ..................................................... 13 5.3 Priority Processing and Finished Grade ................................................................ 14 ARTICLE 6 -ADDITIONAL PROVISIONS RELATING TO THE ADDITIONAL LICENSES AND THE LICENSEE IMPROVEMENTS ..................................................................... 16 6.1 Alteration of Facilities .......................................................................................... 16 6.2 Restoration of Premises ........................................................................................ 16 6.3 Existence of Underground Facilities ..................................................................... 16 StvlR.H:4857-5235-1752.26 June 21, 2022 Item #10 0XSN-323207 Page 11 of 107 6.4 Property Rules and Plans .......................................................................... '. ........... 16 6.5 Overburdening ...................................................................................................... 16 ARTICLE 7 -TAXES AND ASSESSMENTS ......................................................................... 16 7.1 Licensee's Responsibility To Pay ......................................................................... 16 ARTICLE 8 -LIENS ................................................................................................................. 17 8.1 Bonding Over Liens .............................................................................................. 17 ARTICLE 9 -INSURANCE ..................................................................................................... 17 9.1 Insurance To Be Obtained and Maintained by Licensee ...................................... 17 9.2 Insurance to be Obtained and Maintained by Licensee's Contractors .................. 18 9 .3 Additional Requirements Regarding Insurance .................................................... 18 ARTICLE 10 -MAINTENANCE; COMPLIANCE WITH LAW; INSPECTION .................. 19 10.1 Operations, Maintenance and Repair .................................................................... 19 I 0.2 Compliance with Law ........................................................................................... 19 ARTICLE 11 -ENVIRONMENTAL MATTERS .................................................................... 19 11. 1 Additional Defined Terms .................................................................................... 19 11.2 Matters Relating To Hazardous Materials ............................................................ 20 11.3 Environmental Indemnification ............................................................................ 22 11.4 Wetlands and Other Sensitive Lands .................................................................... 22 ARTICLE 12 -TITLE; QUIET ENJOYMENT ........................................................................ 23 12.1 Permitted Exceptions ............................................................................................ 23 12.2 Consent To Use ..................................................................................................... 23 12.3 Grant of Additional Rights .................................................................................... 23 12.4 No Warranty Regarding Title ............................................................................... 23 12.5 Ownership of Temporary Structures ..................................................................... 24 ARTICLE 13 -ASSIGNMENT ................................................................................................. 24 13.1 Assignment By Licensee ....................................................................................... 24 13.2 Conveyance By Licensor ...................................................................................... 24 ARTICLE 14 -DAMAGE AND DESTRUCTION ................................................................... 24 14.1 Damage or Destruction ......................................................................................... 24 ARTICLE 15 -DEFAULT AND REMEDIES .......................................................................... 24 15.l Default By Licensee .............................................................................................. 24 15.2 Remedies Upon a Licensee Default.. .................................................................... 26 15.3 DefaultByLicensor .............................................................................................. 26 15.4 Remedies Upon a Licensor Default ...................................................................... 26 SMRH:4857-5235-1752.26 -Ill- June 21, 2022 Item #10 0XSN-323207 Page 12 of 107 15.5 No Waiver ............................................................................................................. 27 15.6 Estoppel Certificates ............................................................................................. 27 ARTICLE 16 -INDEMNIFICATION, LIMITATION OF LIABILITY AND RELEASE ...... 27 16.1 Indemnity By Licensee ......................................................................................... 27 ARTICLE 17 -SURRENDER, TERMINA TJON AND RESTORATION .............................. 28 17 .1 Surrender ............................................................................................................... 28 17 .2 Restoration ............................................................................................................ 28 17.3 Early Termination ................................................................................................. 28 17.4 Effect of Termination ............................................................................................ 28 AR TI CLE 18 -REPRESENT A TIO NS AND WARRANTIES; DISCLAIMER ...................... 29 18.1 Licensee's Representations and Warranties .......................................................... 29 18.2 Disclaimer ............................................................................................................. 29 ARTICLE 19 -MISCELLANEOUS PROVISIONS ................................................................. 30 19.1 Permitted Contests ................................................................................................ 30 19.2 Holdover ............................................................................................................... 30 19.3 Notices .................................................................................................................. 31 19.4 Force Majeure ....................................................................................................... 31 19.5 Severability ........................................................................................................... 32 19.6 Successors and Assigns ......................................................................................... 32 19.7 Headings ............................................................................................................... 32 19.8 Business Days ....................................................................................................... 32 19.9 Governing Law; Construction ............................................................................... 32 19 .10 Third Party Beneficiaries ...................................................................................... 32 19.11 Survival ................................................................................................................. 32 19.12 Amendments ......................................................................................................... 33 19.13 Time of the Essence .............................................................................................. 33 19.14 Relationship .......................................................................................................... 33 19 .15 Entire Agreement .................................................................................................. 33 19.16 Counterparts .......................................................................................................... 33 SMRH:4857-5235-1752.26 -IV- June 21, 2022 Item #10 0XSN-323207 Page 13 of 107 TABLE OF EXHIBITS Exhibit Reference EXHIBIT "A": Legal Description of the Property ................................................. Recital A EXHIBIT "B-1 ": Map Generally Depicting the Licensed Premises ........................... Recital C EXIDBJT "B-2": Map Generally Depicting the Rescue Watercraft Premises ................... 1.2.1 EXHIBIT "C": Ancillary Equipment ................................................................................. 1.1 EXHIBIT "D": Preliminary Site Plan ............................................................................ .4.3. l EXIDBIT "E": Certain Licensee Permits ...................................................................... .4.3.5 EXHIBIT "F": Utility Services And Facilities ............................................................... 5.2. l EXHIBIT "G": City of Carlsbad Standard Public Works Agreement Template ................................................................................................ 4.4.2 EXHIBIT "H": The Ingress/Egress Licensed Premises .................................................. 1.2.2 SMRH :4857-5235-1752.26 -V- June 21, 2022 Item #10 0XSN-323207 Page 14 of 107 TABLE OF DEFINED TERMS Defined Term Reference Additional License Fee ................................................................................................... Section 3.4 Additional Licensed Premises ...................................................................................... Section 1 .3.2 Additional Licenses ..................................................................................................... Section 1.3.3 Agreement .......................................................................................................................... Preamble Alternate Site .................................................................................................................. Section 1.5 Anci]lary Equipment ....................................................................................................... Section 1. 1 Applicable Interest Rate ................................................................................................ Section 15. 1 Aquafarms .................................................................................................................... Section 1.2.1 Basic License Fee ........................................................................................................ Section 3.1.1 Business Days ............................................................................................................... Section 19.8 Clearway ...................................................................................................................... Section 1.2.1 Construction Commencement.. .................................................................................... Section 4.4.1 Construction Commencement Date ............................................................................. Section 4.4. l CPI .................................................................................................................................. Section 3 .3 Damages ..................................................................................................................... Section 11.3.1 Date of Readiness To Commence Construction .......................................................... Section 4.4.2 Effective Date .................................................................................................................... Preamble Environmental Law .................................................................................................... Section I I .1.2 Existing Occupants ...................................................................................................... Section 1.2.1 Expiration Date ............................................................................................................ Section 2.3.2 Extended Term ................................................................................................................ Section 2.2 Extension Notice ............................................................................................................. Section 2.2 Fence and Gate Improvements ..................................................................................... Section 1.2.2 Fire Station ......................................................................................................................... Recital C Fire Station and Associated Activities ............................................................................ Section I .5 Force Majeure Event ..................................................................................................... Section 19.4 Governmental Body ................................................................................................... Section 11.1.3 Hazardous Materials .................................................................................................. Section 11.1.1 Impositions ...................................................................................................................... Section 7.1 lndemnitees ..................................................................................................................... Section 9.3 Ingress/Egress License ................................................................................................. Section 1.2.2 Ingress/Egress Licensed Premises ............................................................................... Section 1.2.2 Initial Term ..................................................................................................................... Section 2.1 Intended Fire Station Use ................................................................................................ Section 1.1 Intended Ingress/Egress Use ....................................................................................... Section 1.2.2 Intended Rescue Watercraft Use .................................................................................. Section 1.2.l Intended Use ................................................................................................................ Section 1.3.5 Law ............................................................................................................................... Section 10.2 License ............................................................................................................................ Section 1.1 License Fee .................................................................................................................. Section 3 .1.1 License Year ................................................................................................................... Section 2.1 Licensed Premises .............................................................................................................. Recital C SMRH:4857-5235-1752.26 -VI- June 21, 2022 Item #10 0XSN-323207 Page 15 of 107 Licensee ............................................................................................................................. Preamble Licensee Contamination ............................................................................................. Section 11 .2.2 Licensee Default ........................................................................................................ Section 15 .1.1 Licensee Event of Default.. ........................................................................................ Section 15.1.1 Licensee Improvements ............................................................................................... Section 1.3. l Licensee Permits .......................................................................................................... Section 4.3.5 Licensor .............................................................................................................................. Preamble Licensor Default. ........................................................................................................ Section 15.3.1 Licensor Event of Default. ......................................................................................... Section 15.3.1 Licensor Property Changes .......................................................................................... Section 5 .1.1 Licensor Risk Factor .................................................................................................... Section 4.1.1 Lien ................................................................................................................................. Section 8.1 Material Adverse Effect ............................................................................................... Section 4.1.2 Notice of Licensee Event of Default .......................................................................... Section 15.1.1 Notice of Readiness To Commence Construction ....................................................... Section 4.4.2 Occupancy Date ............................................................................................................ Section 17.3 Parties ................................................................................................................................. Preamble Party ................................................................................................................................... Preamble Permitted Exceptions .................................................................................................... Section 12.1 Poseidon ....................................................................................................................... Section 1.2.1 Preliminary Site Plan ................................................................................................... Section 4.3.1 Premises ....................................................................................................................... Section 1.3.4 Premises Availability Date ............................................................................................. Section 1.1 Property .............................................................................................................................. Recital A Redevelopment ............................................................................................................... Section 5.3 Related Person ............................................................................................................. Section 3.4.2 Relocation ....................................................................................................................... Section 1.5 Relocation Obligations .................................................................................................... Section 1.5 Remediation/Investigation Measures ......................................................................... Section 11.1.4 Rescue Watercraft License .......................................................................................... Section 1.2.l Rescue Watercraft Premises ........................................................................................ Section 1.2. l SDG&E ........................................................................................................................ Section 1.2.1 Substantial Completion ................................................................................................... Section 4.5 Subsurface Facilities ....................................................................................................... Section 1.4 Temporary Structures ......................................................................................................... Recital C Term Of This Agreement ............................................................................................. Section 2.3.1 Utility Services and Facilities ...................................................................................... Section 5.2.1 Watercraft Access Improvements ................................................................................ Section 1.2.1 SMRH:4857-5235-1752.26 -vii- June 21, 2022 Item #10 0XSN-323207 Page 16 of 107 LICENSE AGREEMENT THIS LICENSE AGREEMENT (this "Agreement' ) is made and entered into as of .NV',(.,-1,'2.., 2022 (the "Effective Date"), by and between CABRfLLO POWER I LLC, a Delaware limited liability company, as licensor ("Licensor"), having an address at 910 Louisiana treet Houston Texas 77002 and CITY OF CARLSBAD, a municipal corporation, a licensee ("Licen ee '), having an address at 1200 Carlsbad Village Drive, Carlsbad CA 92008. Each of Licensor and Licensee may be referred to herein as a "Party" or collectively as the "Parties". RECITALS A. Licensor is the owner of those certain parcels of real property located at 4600 Carlsbad Boulevard in Carlsbad, California 92008, as more particularly described on Exhibit "A" attached hereto (the "Property"). B. A power plant formerly known as the Encina Power Station was previou ly located on a portion of the Property. Licensor is in the process of undertaking the Redevelopment ( defined below), which includes the redevelopment of the Encina Property. C. Licensee desires to license from Licensor a portion of the Encina Property for the Intended Use (defined below), which portion is generally depicted as the "Licensed Premises Area" on the map attached hereto as Exhibit "B-1" (the "Licensed Premises"). In connection with the Intended Use Licensee is pursuing or desires to pursue the Licensee Permits (defined below) to locate and operate on the Licensed Premises three temporary structures to serve as a temporary fire station (the "Fire Station"), which temporary structures are comprised of a prung structure and two mobile buildings and any temporary improvements which are related thereto and which are depicted on the Preliminary ite Plan (col lectively, the "Temporary Structures"). Licensee also desires to obtain rights for non-exclusive ingress and egress to the Licensed Premises, and access to a dock for storage of and access to rescue watercraft. D. Licensor is wiJling to grant to Licensee a license to use the Licen ed Premises, upon and subject to all of the terms and conditions hereinafter set forth. AGREEMENT NOW THEREFORE, in consideration of the foregoing recitals, the covenants and promises of the Parties contained herein and the rents stipulated to be paid by Licensee hereunder the Parties hereby covenant and agree as follows: ARTICLE 1 -GRANT AND RESERVATION OF RIGHTS 1.1 License. Licensor hereby grants a license to use the Licensed Premises to Licensee, and Licensee hereby licenses the Licensed Premises from Licensor (the "License"), subject to all of the terms and conditions of this Agreement. The License shall be for the sole purpose of using the Licensed Premises for the location and operation of the Fire Station (comprised of the Temporary Structures) for rescue and a ociated ancillary purposes (the "Intended Fire Station Use"). uch ancillary purposes shall include storing on the Licensed Premises certain equipment, a non-exclusive list of examples of which is set forth on Exhibit ''C" attached hereto and SMRH:4857-5235-1752.26 -1- June 21, 2022 Item #10 OX N-323207 Page 17 of 107 incorporated herein by this reference (the "Ancillary Equipment"). Licensor shall use commercially reasonable efforts to determine the earliest date that Licensee may commence construction of the Licensee fmprovements (the "Premises Availability Date")), and promptly following uch determination Licensor shall deliver a notice to Licensee setting forth such date. In no case shall the Premises Availability Date be later than September 12, 2022. No later than the Premises Availability Date, the Licensor shall make available to the Licensee the Licensed Premises in a condition that shall include any remaining concrete slab foundation of the warehouse and administration buildings existing post-demolition asphalt pavement and utility services as described in Section 5.2, which are generally depicted in xhibits B-1 and F, any and all of which shall be delivered by Licensor without any warranties, representations or certifications, either expressed or implied, and in their respective "AS-IS" condition as such condition exists as of the date that Licensor makes the Licensed Premises available to the Licensee "WITH ALL FAULTS," and otherwise subject to the limitations set forth in ection 18.2. otwithstanding anything to the contrary, Licensee shall not use or otherwise have access to the Licensed Premises prior to the Premises Availability Date· provided however that Licensor may in its sole and absolute discretion permit Licensee to have limited access to the Licensed Premises prior to the Premises Avai labi li ty Date for Licensee's planning purposes in connection with the Temporary Structures; provided further that any such limited access shall be subject to such terms and conditions as Licensor may require in its sole and absolute discretion. 1.2 Grant of Additional Licenses. Subject to all of the terms and conditions of this Agreement, Licensor hereby grants to Licensee the following additional licenses each of which shall (i) be non-exclusive (except as otherwise set forth herein), (ii) be appurtenant to Licensee's right under this Agreement to use the Licensed Premises (iii) terminate concurrently with the License (except as otherwise set forth herein) and (iv) be for the ole purpose as set forth b low in thi Section 1.2 with respect to such additional licenses (except to the extent that Licensor approves in writing one or more ancillary purposes with respect to any such additional license, which approval hall be in Licensor s sole and absolute discretion): 1.2. l A license (the 'Rescue Watercraft License ' ) solely for the Jntended Rescue Watercraft Use (defined below) over a portion of the Encina Property which portion shall be in the vicinity of the existing dock located on the Property, and the precise location and dimensions of which portion shall be determined by the Licensor (such portion, the "Rescue Watercraft Premises")), and following such determination (which Licensor may update from time to time) such portion shall be generally depicted on Exhibit "B-2", attached hereto, which exhibit may be updated or amended from time to time. As used herein, the term "Intended Rescue Watercraft Use shall mean for water rescue purposes only, (i) the designing, permitting and improving of the existing dock and adjacent dock access (subject to Licensor's review and approval in Licensor s sole and absolute discretion which shall not be unreasonably withheld) (ii) the locating or storing of rescue watercraft, (iii) the docking of a patrol boat of up to 24 feet in length, and (iv) Rescue Watercraft ingress to and egress from the floating dock located on the Re cue Watercraft Premises by transit through, on , over and across the Agua Hedionda Outer and Middle Lagoon located on the Encina Property. Notwithstanding anything to the contrary Licensor makes no representation, warranty covenant or agreement that the Licen ee may use or enjoy the Rescue Watercraft License, which shall be subject to any limitations in connection with the existing dock the availability of access to the lagoon and/or the use of the lagoon it being understood and agreed that the Rescue Watercraft License (and Licensee's use and enjoyment SMRH:4857-5235-1752.26 -2- June 21, 2022 Item #10 0XSN-323207 Page 18 of 107 thereof) is subject to restrictions under this Agreement (including, without limitation, under this Section 1.2. l or Section 12.2) which may make such use and enjoyment impractical or impossible. Notwithstanding the foregoing, (i) Licensee shall perform an inspection of the existing dock for safe use by Licensee, and shall not have the right to install any improvements (the "Watercraft Access Improvements" ) with respect to the Rescue Watercraft License without first obtaining Licensor's prior written approval of any and all plans and specifications in respect of such improvements, which approval shall not be unreasonably withheld, and (ii) in no event shall any use of the Rescue Watercraft License interfere with Licensor's use and enjoyment of the Property (including, without limitation, in connection with the Redevelopment) or with the use and enjoyment of any rights of any tenant or other occupant, including without limitation, Poseidon Water, LLC, a Delaware limited liability company, or its successors, assigns and affiliates (collectively, "Poseidon"), Clearway Energy, lnc., a Delaware corporation, or its affiliates (collectively, "Clearway"), San Diego Gas & Electric Company, a California corporation, or its affiliates (collectively, "SDG&E") or Carlsbad Aquafarms, Inc., a California corporation, or its affiliates (collectively, "Aquafarms" and, together with Poseidon, Clearway and SDG&E, collectively, the "Existing Occupants") of all or any portion of the Property. Licensee further understands that Poseidon's planned construction of permanent intake works is currently scheduled for 2023, and that such construction will require relocation of the existing dock. Licensor shall arrange for the relocation of the existing ramp and floating dock to the Rescue Watercraft Premises at no cost to Licensee, provided that Licensee shall be responsible for any and all costs and expenses in connection with any repairs or improvements required for Licensee's use of the Rescue Watercraft Premises. Licensor shall provide Licensee, solely for the Intended Rescue Watercraft Use, with reasonable vehicle and pedestrian access to the Rescue Watercraft Premises from the Licensed Premises, as depicted in Exhibit B-2. Notwithstanding anything to the contrary, if at any time Licensor, in good faith , determines (provided, however, that Licensor shall consult with Licensee prior to Licensor making such determination and allow Licensee an opportunity to address Licensor's concerns) that the Rescue Watercraft License creates unreasonable or unacceptable exposure to potential liability or otherwise unreasonably or unacceptably interferes with Licensor's use or enjoyment of all or any portion of the Property, then Licensor may immediately terminate the Rescue Watercraft License at no cost upon written notice to Licensee. In no circumstance will Licensor bear any liability for any claim arising from Licensee's use of the Rescue Watercraft Premises. 1.2.2 A license (the "Ingress/Egress License") for the sole purpose of pedestrian and vehicular ingress to and egress from the Licensed Premises and the Rescue Watercraft Premises (the "Intended Ingress/Egress Use"), which license shall be located on, over, across and through such existing and future roadways, pathways, gates and access routes (including, without limitation, for emergency purposes, emergency roadways, pathways, gates and access routes) located on the Encina Property and designated by Licensor from time to time, as generally depicted on the diagram attached hereto as Exhibit "H" (the "Ingress/Egress Licensed Premises" ). Licensor shall have the right, after consultation with Licensee, to alter, resize, relocate or remove the Ingress/Egress Licensed Premises and the Rescue Watercraft Premises, provided that (i) such alteration, resizing, relocation or removal does not prevent or otherwise unreasonably interfere with pedestrian or vehicular ingress to and egress from the Licensed Premises via Gate I A and Gate 1 onto Carlsbad Boulevard and to and from the Rescue Watercraft Premises and (ii) at all times during the Term of the Agreement, Licensor shall provide Licensee with a reasonable route for ingress and egress to the Licensed Premises via Gate 1 A and Gate 1 onto Carlsbad Boulevard SMRH:4857-5235-1752.26 -3- June 21, 2022 Item #10 0XSN-323207 Page 19 of 107 which is sufficient for the Intended Fire Station Use, and to and from the Rescue Watercraft Premises which Licensor reasonably determines to be sufficient for the intended Fire Station Use and Rescue Watercraft Use; provided, however, it is understood and agreed that (A) such route may be jointly used by Licensee, Licensor and/or one or more of Licensor's other licensees, tenants or occupants, (B) construction on the Property may lead to periods when an alternate route to and from the Licensed Premises via Gate lB and Gate 1 onto Carlsbad Boulevard may need to be used, in which case Licensor shall provide Licensee, at all times during the Term of the Agreement, with a reasonable route for ingress and egress to the Licensed Premises via Gate 1 B and Gate I onto Carlsbad Boulevard which is sufficient for the Intended Fire Station Use, and (C) vehicular access to the Rescue Watercraft Premises may be unavailable during Poseidon's construction of permanent intake works, in which case Licensor shall provide Licensee, solely for the Intended Rescue Watercraft Use, with a reasonable pedestrian route from the Licensed Premises to the Rescue Watercraft Premises. Notwithstanding the foregoing or anything to the contrary (but subject to Section 19.4), it is understood and agreed that Licensor shall not be in breach of its obligations under the preceding clauses (i) or (ii) to the extent events or circumstances impairing ingress or egress are beyond the reasonable control of Licensor, in which case Licensor shall provide Licensee with a reasonable route for emergency ingress and egress to the Licensed Premises via Gate 2 onto Carlsbad Boulevard and/or via Gate 3 onto Cannon Road. The Ingress/Egress License shall include the right to use any access gates located within the Ingress/Egress Licensed Premises. Without limiting the generality of the foregoing, it is understood and agreed that Licensee may construct and install those certain security facility improvements, including installation of Opticom Emergency Vehicle Preemption or equivalent devices, to the gates providing access to the Property (collectively, the "Fence and Gate Improvements"), the plans and specifications of which shall be prepared by Licensee and provided to Licensor for Licensor's approval, which shall not be unreasonably withheld. Without limiting the generality of the foregoing, Licensee understands that there may not be an on-site security guard monitoring the Fence and Gate Improvements or all or any portion of the Property. Licensee's Fence and Gate Improvements will need to provide for automatic but restricted access for authorized persons and will need to provide for automatic closure following any ingress or egress through said gate. The Fence and Gate Improvements shall be constructed at Licensee's sole cost and expense pursuant to such plans and specifications approved by Licensor, as aforesaid. In addition, Licensee's Fence and Gate Improvements shall not interfere with access to the Property by Licensor, Licensor's Related Persons or any other tenants or occupants. Licensor shall permit Licensee and Licensee's Related Persons to have access to the Premises, subject to Licensor's ordinary security and safety procedures. 1.3 Additional Definitions 1.3.1 The Temporary Structures, the Watercraft Access Improvements, and the Fence and Gate Improvements are collectively referred to herein as the "Licensee Improvements". 1.3.2 The Ingress/Egress Licensed Premises and the Rescue Watercraft Licensed Premises are collectively referred to herein as the "Additional Licensed Premises". 1.3.3 The Ingress/Egress License and the Rescue Watercraft License are collectively referred to herein as the "Additional Licenses". SMRH:4857-5235-1752.26 -4- June 21, 2022 Item #10 0XSN-323207 Page 20 of 107 1.3.4 The Licensed Premises and the Additional Licensed Premi es are collectively referred to herein as the "Premises". 1.3 .5 The Intended Fire Station Use, the Intended Ingress/Egress use and the Intended Rescue Watercraft Use are collectively referred to herein as the "Intended Use'. 1.4 Reservation of Licensor Rights. In addition to any other rights reserved by Licensor in thi Agreement, Licensor hereby reserves the following rights with respect to the Premises: (i) the right to operate, use, maintain improve expand replace and remove, one some or all of the subsurface facilities (including any pipelines) that are currently or that are from time to time located on the Premises (the "Subsurface Facilities") and (ii) the right of ingress to and egress from the ubsurface Facilities on over, under upon, along and through the Premises at uch times and in such locations as Licensor may in its sole and absolute discretion determine to be necessary or convenient to enable Licensor to exercise its rights under clause (i) of this Section lA_, provided Licensor does not unreasonably interfere with Licensee's Intended lngress/Egress Use, Intended Fire Station Use or Intended Rescue Watercraft Use (in each case as such Licensee s Intended Ingress/Egress Use Intended Fire Station Use or Intended Rescue Watercraft Use is subject to limitations and termination rights under this Agreement). 1.5 Relocation Obligations of Licensee. No later than the Effective Date, and continuously throughout the Term Of This Agreement (as hereinafter defined), Licensee shall exercise diligent efforts (i) to identify one or more suitable permanent or replacement sites not located on the Property for Licensee's permanent or replacement fire station and rescue needs (each, an "Alternate Site ), which may include potential sites that are under the ownership of Licensor or Licensee, (ii) identify and secure a source of funding for the Relocation of the Fire tation and Associated Activities, and (iii) to relocate the Fire tation and Associated Activities to an Alternate ite in a timeframe that does not adversely impact or delay the Redevelopment or Licensor's other use and enjoyment of all or any portion of the Property (the "Relocation ). Beginning in 2023, on or before June 30 of each calendar year during the Term Of This Agreement Licensee shall be required to deliver to Licensor a written memorandum reasonably satisfactory to Licensor containing the following information: (a) a detailed description of Licensee's activitie during the prior year to fulfill the Relocation Obligations (defined below), including, without limitation, a list of each prospective AJternate Site, (b) a detailed summary of Licensee's plans for fulfilling the Relocation Obligations during the one-year period then commencing and (c) an updated timeline for the Relocation. Licensee's obligations under this Section 1.5 are collectively referred to herein as the "Relocation Obligations". As used herein, the term "Fire Station and Associated Activities" means Licensee s temporary fire station, rescue and associated operations and activities. For the avoidance of doubt, whereas Licensee commits to work diligently to identify an Alternate Site for Licensee's Fire Station, including one or more Alternate Sites not located on the Property, Licensor also agrees to meet and confer in good faith with Licensee to discuss with Licensee the sites not under Licensor's ownership, and the possibility of relocating the Fire Station and Associated Activities from the Premises to an Alternate Site under the ownership of Licensor that will not interfere with the Redevelopment. Furthermore, it is understood and agreed that the Relocation Obligations constitute indispensable commitments on the part of Licensee and that Licensor would not have entered into thi Agreement without Licensee's agreement to relocate the Fire Station and Associated Activities to an Alternate ite in a timeframe and in a manner that does not adversely impact or delay the Redevelopment. MRH:4857-5235-1752.26 -5- June 21, 2022 Item #10 OX N-323207 Page 21 of 107 1.6 Removal. Licensee shall remove the Temporary Structures and any other personal property of Licensee by the earlier of: (i) the date occurring two (2) months after the expiration of this Agreement or (ii) the date occurring four (4) months after the earlier termination of this Agreement by either Party. For the avoidance of doubt, from and after the date upon which the Watercraft Access Improvements and the Fence and Gate Improvements (as applicable) are constructed or otherwise installed upon the Property, the Watercraft Access Improvements and the Fence and Gate Improvements (including, without limitation, any equipment necessary or useful in connection with the operation of the Fence and Gate Improvements, except for the Opticom which shall remain the property of Licensee) shall automatically be Licensor's property (as more particularly provided in Section 12.5) and shall not be removed by Licensee following any expiration or termination of this Agreement, unless otherwise requested in writing by Licensor. This Section 1.6 shall survive any expiration or termination of this Agreement. 1.7 No Warranty as to Plans and Specifications. Notwithstanding anything set forth in this Agreement to the contrary, if Licensor should inspect, review or receive any plans or specifications prepared by or on behalf of Licensee in accordance with this Agreement or any construction or other matter related thereto, Licensor shall have no liability or obligation to Licensee or any other party arising out of such inspection, review or receipt. No such inspection, review or receipt, nor any failure by Licensor to make objections after any such inspection, review or receipt, shall (i) constitute a representation by Licensor that the construction and/or the improvements are in accordance with such plans and specifications, Laws, or any other requirement, (ii) constitute a waiver of Licensor's right thereafter to insist that the construction or improvements be constructed in accordance with such plans and specifications, Laws, or any other requirement or (iii) constitute a waiver of any breach, Licensee Event of Default, or other matter. No approval by Licensor related to such plans and specifications, any construction, or any other matter, shall, in any way, be deemed to imply any warranty, representation, or covenant by Licensor, including that the improvements, if so constructed, will be structurally sound, will conform to any standards or requirements, will comply with such plans, specifications, Laws, or other requirements, will be fit for any particular purpose, or will have a particular market value. ARTICLE 2 -TERM 2.1 Initial Term. The initial term of this Agreement (the "Initial Term") shall commence upon the Effective Date and shall expire at 11 :59 PM on the day immediately preceding the sixth (6th) anniversary of the Construction Commencement Date (defined below). For purposes hereof, the term "License Year" means each consecutive twelve (12) month period commencing on the Construction Commencement Date. 2.2 Options to Extend. Provided that no Licensee Event of Default has occurred, Licensee has the option to extend the Initial Term for up to two (2) consecutive periods of one {l) year each (each such I-year period, an "Extended Term"), subject to all of the provisions of this Agreement, including the provisions governing the adjustments to Basic License Fee (as set forth, and as that term is defined, in Article 3 hereof), by delivering to Licensor written notice of Licensee's intention to exercise such option to extend the then applicable term (each such notice, an "Extension Notice"). The Extension Notice with respect to each option to extend shall be given at least two (2) months (but in no event more than six (6) months) prior to the then current expiration of the Term Of This Agreement. Notwithstanding the foregoing or anything to the SMRH:4857-5235-1752.26 -6- June 21, 2022 Item #10 0XSN-323207 Page 22 of 107 contrary, if Licensor, acting in good faith, reasonably determines that an extension of the Term Of This Agreement as set forth above in this Section 2.2 will adversely affect or delay the Redevelopment, then Licensor shall have the right to deliver a notice of such determination to Licensee, and upon such notice Licensee shall immediately cease to have any further option under this Section 2.2, and any Extension Notice delivered after the date of such notice from Licensor shall be of no force or effect. 2.3 Additional Definitions. 2.3. l The phrase "Term Of This Agreement" means the Initial Term and, if and to the extent extended for an Extended Term as provided in Section 2.2 hereof, shall include the Extension Terms with respect to which the extension option as provided in Section 2.2 has been validly and timely exercised. 2.3.2 The term "Expiration Date" means the date on which the Term Of This Agreement expires as provided in the foregoing provisions of this Article 2. ARTICLE 3 -LICENSE FEE 3.1 Basic License Fee In General. 3 .1.1 Licensee shall pay to Licensor, without demand, notice or offset, a monthly basic license fee (the "Basic License Fee") in the amounts set forth in Section 3.2 hereof, which amounts shall be subject to recalculation for each Extended Term as provided in Section 3.3 hereof. The Basic License Fee and Additional License Fee (together, the "License Fee") shall be paid promptly on the due date thereof as set forth herein. 3.1.2 The Basic License Fee shall be payable throughout the Term Of This Agreement (and thereafter as provided in Section 17.1 hereof) (i) in monthly installments equal to the applicable monthly amount and (ii) in advance on the first day of each and every calendar month. If the Construction Commencement Date does not occur on the first day of a calendar month, then the Basic License Fee shall be pro-rated in accordance with Section 3.1.3. 3.1.3 Any Basic License Fee payable for less than a full calendar month shall be prorated. Further, the Parties acknowledge that the amount of Basic License Fee can change based on the provisions of Sections 3.2, 3.3 and 3.4, hereof, and the Parties therefore agree that upon each such change the old and new Basic License Fee amounts shall be prorated if such change occurs anytime other than the first day of a calendar month. Any prorations required to be made under this Section 3.1.3 shall be made based on the number of days remaining in the applicable month (including the effective date of such change) divided by the total number of days in such month. 3.1.4 The License Fee shall be paid to any person and at any address as shall be specified by Licensor to Licensee upon the signing hereof, which person and/or address may be changed at any time and from time to time by written notice from Licensor to Licensee. Without limiting the generality of the foregoing, Licensor may require Licensee to pay License Fee directly to any lender that Licensee may designate in writing. SMRH:4857-5235-1 752.26 -7- June 21, 2022 Item #10 0XSN-323207 Page 23 of 107 3.2 Basic License Fee During the Initial Term. During the Initial Term, Licensee shal I pay the monthly Basic License Fee to Licensor, without demand, notice or offset, in the initial amount of Two Thousand Five Hundred Dollars and 00/100 ($2,500.00) per month from the Construction Commencement Date, subject to adjustment as follows: Commencing on the first anniversary of the Construction Commencement Date, and thereafter on each anniversary of the Construction Commencement Date until the end of the Initial Term, the amount of the Basic License Fee shall be increased to the amount that is three percent (3%) greater than the Basic License Fee applicable during the month immediately preceding such increase. 3.3 Basic License Fee During Any Extended Term. The amount of the monthly Basic License Fee for each License Year comprising an Extended Term shall be increased to the amount that is the greater of (i) three percent (3%) greater than the monthly Basic License Fee applicable during the month immediately preceding such License Year or (ii) an amount equal to (a) the initial monthly Basic License Fee of Two Thousand Five Hundred Dollars and 00/100 ($2,500.00) per month, multiplied by (b) a fraction, the numerator of which is the Consumer Price Index for all Urban Consumers San Diego-Carlsbad, All Items ("CPI-U") for the month immediately preceding such License Year (or if the CPI-U for such month is not available as of the commencement of such License Year, then such numerator shall be the CPI-U for the most recently completed month for which the CPI-U is available as of the commencement of such License Year) and (b) the denominator of which is the CPI-U for the month associated with the Effective Date. Licensee shall pay the monthly Basic License Fee to Licensor, without demand, notice or offset. 3.4 Additional License Fee. Any other amounts (i.e., any amounts other than Basic License Fee) that Licensee is required to pay to or for Licensor pursuant to this Agreement shaJI constitute "Additional License Fee" for purposes of this Agreement, and , unless otherwise expressly provided herein, shall be payable by Licensee to Licensor within thirty (30) days after demand by Licensor. Such amounts shall include the following: 3.4.1 Licensee shall reimburse Licensor for any and all costs and expenses reasonably incurred and documented by Licensor in connection with the requirements of this Agreement (including, without limitation, in cooperating with or assisting Licensee with any transaction or activity contemplated to be undertaken by Licensee pursuant to this Agreement), provided Licensor shall use commercially reasonable efforts to notify Licensee of Licensor's estimate of such expenses before incurring any payment obligations for which Licensee shall be required to reimburse Licensor under this Section 3.4.1. 3.4.2 In addition to and cumulative with any other rights and remedies that Licensor may have at law, in equity or hereunder, Licensee shall pay to Licensor an amount equal to any and all costs, expenses, damages, losses and liabilities that Licensor may incur or suffer by reason of any acts, omissions, activities or operations of or by Licensee or any Related Person of Licensee. As used in this Agreement, the term "Related Person", wherever used with reference to a Party, means (i) that Party's parent company and subsidiaries, and each of that Party's other affiliates and (ii) that Party's or any of such parent company's, subsidiaries' or affiliate's respective shareholders, members, directors, officers, employees, partners, trustees, agents, contractors, subcontractors, lenders, lessees, sub lessees, grantees, licensees, invitees, assignees and successors- in-interest, and anyone else who obtains rights under, or from, such Party or such parent company, SMRH:4857-5235-1752.26 -8- June 21, 2022 Item #10 0XSN-323207 Page 24 of 107 subsidiary or affiliate; provided, however, that in no event shall Licensee or any of Licensee's Related Persons be deemed to be a Related Person of Licensor. Without limiting the generality of the foregoing, Licensee shall reimburse reasonably incurred and documented incremental expenses for measures that Licensor undertakes for the purpose of meeting Licensee's requirements for ingress and egress to the extent such measures are not otherwise required to meet Licensor's ingress and egress requirements. Licensor shall use commercially reasonable efforts to provide Licensee with the opportunity to review such additional measures and associated costs before any incremental expense is incurred. ARTICLE 4 -DEVELOPMENT, CONSTRUCTION AND ALTERATION OF THE LICENSEE IMPROVEMENTS 4.1 Additional Definitions. 4.1. l The term "Licensor Risk Factor" means each of the following, whether current or prospective: (i) the lateral or subjacent support for any lands or property owned by Licensor; (ii) Licensor's financial condition or credit rating; (iii) the avoidance of threat, damage or injury to health, safety, life or property; (iv) insurance requirements or limitations applicable to Licensor, or Licensor's insurability, or the insurability of any property of Licensor; (v) the environmental condition of the Property and any lands or waters underlying or in the general vicinity of the Property and (vi) Licensor's ability to (a) obtain, maintain, keep in effect, comply with, amend or avoid having to amend, any permit (including any permit that is required for the operation of any facilities on the Property), Law, environmental limitation or mitigation requirement, water right, underlying title document or any other agreement, limitation, requirement or entitlement affecting any property owned by Licensor, (b) construct, install, modify, improve, expand (including for purposes in accordance with Section 5.1.1 hereof), maintain, repair, operate, remove, relocate, dismantle, demolish or make any other change to any property of Licensor or any part or component thereof, (c) have reasonable vehicular and pedestrian access to the Property or any part or component thereof at all times, (d) conduct or maintain operations and other commercial activity from any property of Licensor, (e) maintain the integrity of its title to the Property, any part thereof or any of Licensor's property, (f) avoid Licensee Contamination or (g) otherwise conduct Licensor's business. 4.1.2 The term "Material Adverse Effect" means any current or prospective interference with, impairment of, delay affecting, increase in the cost of, or any other adverse impact or effect on, any specified condition, asset, property, circumstance, event, activity or other matter (including any Licensor Risk Factor) caused by a Party, which, on a single occurrence basis or when cumulated with all other interferences, impairments, delays, increases, impacts or effects (on the same or other conditions, assets, properties, circumstances, events, activities and matters), directly or indirectly results in, causes or contributes to a Party incurring any cost, expense, loss (including loss ofrevenue) or liability (including environmental liability) in excess of Twenty Five Thousand Dollars ($25,000), in the aggregate, in any twelve (12) month period. 4.2 General Provisions Relating To the Licensee Improvements. 4.2.1 Upon the written request of Licensor, Licensee shall, at its sole cost and expense, promptly deliver to Licensor copies of all agreements, contracts, studies, reports, maps, SMRH:4857-5235-1752.26 -9- June 21, 2022 Item #10 0XSN-323207 Page 25 of 107 surveys, and other documents and materials (including any amendments or modifications thereto) at any time and from time to time relating to or connected with (i) the Intended Use, or (ii) the design, development, permitting, construction, operation, alteration, dismantlement or removal of any Licensee Improvement, including all encumbrances, liens, drawings (including construction drawings), plans (including demolition, remediation, safety, grading and building plans), specifications, soils tests, seismic studies, Hazardous Materials studies, analyses or mitigation plans, environmental impact reports, Licensee Permit applications, Licensee Permits (when issued or obtained), reimbursement and/or cost sharing agreements, correspondence with Governmental Bodies and operation manuals. 4.2.2 Licensee shall not obtain or amend any Licensee Permit, demolish, dismantle or remove any Licensee Improvements or any other facilities or improvements located on the Premises or any part thereof, or construct, operate, use or alter, any Licensee Improvement, if the same could reasonably be expected, or in any manner that could reasonably be expected, to have a Material Adverse Effect on any Licensor Risk Factor. 4.2.3 Licensee shall conduct all design, development, permitting, demolition, remediation, construction, alteration and other activities relating to the Licensee Improvements or any thereof, in accordance with (i) good engineering practices and (ii) any engineering, procurement and construction contract (or other contract) a copy of which shall have been previously delivered to Licensor. 4.3 Design, Development and Permitting Matters. 4.3.1 Any Licensee Improvements shall be developed in the configuration generally depicted on the conceptual site plan attached hereto as Exhibit "D" (the "Preliminary Site Plan"), and as authorized and approved by the Licensee Permits and in compliance with all Laws. 4.3.2 During the course of design of any Licensee Improvements, the Parties may mutually agree upon modifications to the location of one or more of the Additional Licensed Premises; provided, however, that no such modifications shall be agreed upon if the same could reasonably be expected to have a Material Adverse Effect on any Licensor Risk Factor or Licensor's rights under this Agreement. In the event that the Parties mutually agree on such modifications, then they shall amend this Agreement to reflect such modification. 4.3.3 Licensee shall prepare (and, pursuant to Section 4.2.1 hereof, provide to Licensor), final site plans for any Licensee Improvements, which final site plans shall be (i) generally in accordance with the Preliminary Site Plan, (ii) in compliance with all Laws, (iii) in such detail as will be acceptable to the Governmental Bodies having jurisdiction over the Property or the Licensee Improvements and (iv) sufficient to obtain concurrence from the respective Governmental Bodies for such permits necessary for the Licensee Improvements. 4.3.4 Licensee shall develop designs for, and the methods and details of, how recycled water, if applicable, and potable water will be allocated or utilized at the Fire Station consistent with best management practices and shall further ensure that no Licensee wastewater is introduced to the Licensor's stormwater management system. SMRH:4857-5235-l 752.26 -10- June 21, 2022 Item #10 0XSN-323207 Page 26 of 107 4.3.5 Licensee shall obtain (at its sole cost and expense) any and all permits, including a Coastal Development Permit if required, grading, demolition, remediation and building permits, licenses, statutory amendments, ordinances, approvals of third parties and Governmental Bodies (including zoning, planning and environmental approvals), mitigation or remediation requirements and other entitlements, requirements and consents that are necessary or required for the Intended Use or the Licensee Improvements (collectively, the "Licensee Permits"). The Licensee Permits include, without limitation, those certain permits listed on Exhibit "E" attached hereto and incorporated herein by this reference. Without limiting the generality of the foregoing, the Licensee Permits required for the construction of the Temporary Structures shall include any required wastewater permit and/or metered service connection. lf Licensee is required to obtain any Licensee Permits necessary or required for the Intended Use or the Licensee Improvements, and if such Licensee Permits would not reasonably be expected to compromise any rights or plans of Licensor (including, without limitation, any rights or plans relating to the Redevelopment), then Licensor shall reasonably cooperate (at no cost or expense to Licensor) with Licensee in obtaining such Licensee Permits. Licensor's approval shall be required for the inclusion of any information relating to any property of Licensor in any application for a Licensee Permit. 4.4 Construction Matters. 4.4.1 For purposes of this Agreement, (i) the term "Construction Commencement" means the actual commencement of any improvement, alterations, or construction of any kind or nature on the Premises; and (ii) the term "Construction Commencement Date" means the date on which Construction Commencement occurs. 4.4.2 Subject to Article 6, Licensee shall have the right to construct the Licensee Improvements so long as (i) no Licensee Event of Default has occurred, and (ii) such construction (a) does not disturb or interfere with any existing Permitted Exceptions affecting the Property, (b) will not have a Material Adverse Effect on any Licensor Risk Factor and (c) is sufficiently coordinated with Licensor with respect to any operations on the Property. In any case, Construction Commencement shall not occur until such time as, at Licensee's sole cost and expense: (1) (A) all Licensee Permits necessary for such construction have been obtained, and (B) Licensee shall have demonstrated to Licensor's reasonable satisfaction that Licensee's contractor has met the requirements specified in the City of Carlsbad's public works agreement, which is attached hereto as Exhibit "G", including that such general contractor is contractually bound to the same insurance and risk of loss requirements as set forth in the City of Carlsbad's public works agreement; and (2) Licensee has delivered to Licensor such evidence as Licensor may request establishing Licensee's compliance with the foregoing conditions and requirements of this Section 4.4.2 and such other terms and conditions of this Agreement as are applicable, together with such other documents and requirements Licensor may determine to be necessary or desirable in its sole discretion (such evidence, documents and requirements, collectively, the "Notice of Readiness To Commence Construction"). Licensor shall have ten (l 0) Business Days after its receipt of the Notice of Readiness To Commence Construction to acknowledge or dispute that such terms, conditions and requirements have been met. If Licensor does not believe that such terms, conditions and requirements have been met, then it shall give notice to Licensee objecting to the Notice of Readiness To Commence Construction, which notice shall state the reasons for such objection; whereupon Licensee shall promptly take all necessary and appropriate action to remove or cure such reasons before re-submitting the Notice of Readiness To Commence Construction to SMRH:4857-5235-1752.26 -11- June 21, 2022 Item #10 0XSN-323207 Page 27 of 107 Licensor. Upon receipt of such re-submittal, Licensor shall have an additional five (5) Business Days to acknowledge or dispute that such terms, conditions and requirements have been met. If Licensor does not object to the Notice of Readiness To Commence Construction (or a re-submittal thereof) within the applicable period as described above, or if Licensor accepts the Notice of Readiness To Commence Construction (or a re-submittal thereof) in writing, then such terms, conditions and requirements shall be deemed to have been satisfied at the end of such period (the "Date of Readiness To Commence Construction"), and Licensee may commence construction of the Licensee Improvements. 4.4.3 Licensee shall construct any Licensee Improvements or cause any Licensee Improvements to be constructed (i) at Licensee's sole cost and expense, (ii) substantially in accordance with the relevant drawings, plans and specifications approved by Licensor and (iii) in compliance with all of the relevant requirements of this Agreement. 4.5 Alterations. For purposes of this Agreement, the term "Substantial Completion" refers, with respect to any improvements comprising the Licensee Improvements, to the earlier to occur of the following: (a) the date upon which such improvements commence operational use for their intended purpose or (b) the date on which the performance guarantees have been achieved under the agreement between Licensee and the general contractor for the construction of such improvements. Once Substantial Completion has occurred, Licensee shall not obtain any permits, licenses or other entitlements for, or commence grading or construction of any improvement or other material alteration to, the Licensee Improvements or any thereof, unless and until (i) Licensee has submitted to Licensor charts that detail and specify all drawings, plans, specifications, documents, permits, licenses, entitlements and other items, information and data associated with such improvements or alterations, (ii) certified to Licensor that said charts are accurate and complete, and (iii) Licensor has had at least thirty (30) Business Days to review such charts; provided, however, that no such permits, licenses, entitlements, grading, construction, improvements or alterations shall be permitted if the same could reasonably be expected to have a Material Adverse Effect on any Licensor Risk Factor. Once the foregoing has been completed, then Licensee may proceed with such improvement or alteration so long as (a) the same is conducted in compliance with the terms, provisions and conditions of this Agreement and (b) Licensee satisfies the requirements set forth in Sections 4.2, 4.3 and 4.4 hereof (to the extent that Licensor reasonably deems such Sections or portions thereof to be applicable), which Sections shall in such case be broadly construed and interpreted to apply to such improvement or alteration. Notwithstanding the foregoing, this Agreement does not contemplate or permit any material expansion of the Fire Station or any of the Licensee Improvements, and any such expansion shall be subject to a new license and such other terms and documentation as Licensor may require in its sole and absolute discretion. Without limiting the generality of the foregoing, any alterations undertaken by Licensee shall be performed in a good and workmanlike manner pursuant to valid Licensee Permits, and in accordance with all applicable Laws. Licensee shall keep the Premises free and clear of any and all mechanic's, materialman's or other liens, charges, claims and encumbrances caused or created by Licensee or any other person or entity claiming by or through Licensee. Nothing in this Section 4.5 shall apply to or be read as prohibiting the Licensee from undertaking routine maintenance or repairs to the Temporary Structures or from taking any and all actions which Licensee determines are necessary to protect the Licensed Premises from, or undertake repairs necessary as a result of, damage due to an emergency, including flooding. SMRH:4857-5235-1752.26 -12- June 21, 2022 Item #10 0XSN-323207 Page 28 of 107 ARTICLE 5 -OTHER MATTERS RELATING TO PROPERTY OF LICENSOR 5.1 Construction At, Or Modification or Dismantlement of, Licensor Property. 5.1.1 Should Licensor determine to (i) alter, modify, improve, and make any other change to, any property of Licensor or any part or component thereof, (ii) change its methods and procedures for operating any of Licensor's property or any part or component thereof, or (iii) remove, dismantle, demolish or otherwise cease its use of any of Licensor's property or any part or component thereof; in each such case at any time, from time to time and for any reason or purpose (collectively, "Licensor Property Changes"), which could have a Material Adverse Effect on Licensee's operation of the temporary Fire Station, it shall use commercially reasonable efforts to provide ninety (90) days prior written notice of such proposed Licensor Property Changes to Licensee, and each Party shall use its good faith diligent efforts to mutually agree to amend the terms of this Agreement. 5.1.2 Upon Licensor's prior written request, Licensee shall reasonably cooperate with Licensor and any Related Person of Licensor in the conduct of Licensor Property Changes or the construction of any other facilities or projects at or on the Property, including in the coordination of the Parties' respective construction activities, provided however, Licensee shall not be required to assume any costs as a result of Licensor's Property Changes or the construction of any other facilities or projects at or on the Property except as otherwise required under this Agreement. Licensee agrees and accepts that the construction schedule for any Licensor Property Change or Licensor's construction of any other facilities or projects at or on the Property shall be reasonably accommodated by Licensee. 5.2 Connection To Electrical System and Utilities. 5.2.l Licensor shall not have any obligations of any kind or nature to Licensee with respect to the establishment of utility services (other than the obligation to reasonably cooperate in good faith at no cost or expense to Licensor, as more specifically provided below in this Section 5.2.1). It is understood and agreed that utility service (such as water, sewer, electricity and communications) and related facilities (collectively, "Utility Services and Facilities") that previously serviced Licensor's facilities shall be cut back or capped as of the Construction Commencement Date, and that such Utility Services and Facilities shall no longer serve the Licensed Premises. To Licensor's knowledge, and subject to the limitations set forth in Section 18.2, the location of certain utility service laterals and connections for power, natural gas, water, sewer and communications on the Property is depicted on Exhibit "F" attached hereto and incorporated herein by this reference. To the extent that Licensee desires that any such Utility Services and Facilities serve the Licensed Premises, Licensee shall be responsible at its sole cost and expense (i) for confirming or otherwise determining the location of such Utility Services and Facilities and (ii) for causing such Utility Services and Facilities to be connected to the Licensed Premises (whether such Utility Services and Facilities are able to use any existing lines as cut or capped, or whether such Utility Services and Facilities require new lines). If Licensee is required to obtain any permits, licenses or similar rights necessary or required to establish Utility Services and Facilities on the Licensed Premises, Licensor shall use good faith efforts to reasonably cooperate with Licensee (at no cost or expense to Licensor) in Licensee's efforts to obtain such permits, licenses or similar rights. Any such Utility Services and Facilities shall be under accounts SMRH:4857-5235-1752.26 -13- June 21, 2022 Item #10 0XSN-323207 Page 29 of 107 in Licensee's name, and in no event shall Licensee's facilities recei've Utility Services and Facilities under Licensor's accounts. Licensor shall have no obligation to provide or otherwise make available at the Licensed Premises any Utility Services and Facilities. Licensee at its sole cost and expense shall also be responsible for paying for any and all Utility Services and Facilities to the extent serving the Licensed Premises. Any Utility Services and Facilities (including, without limitation, any lateral lines) on the Property which exclusively serve the Licensed Premises shall be maintained by Licensee (or Licensee's contractor) subject to Licensor's prior approval , at Licensee's sole cost and expense. 5.2.2 Without limiting the generality of Section 5.2.1, in no event shall Licensor have any obligation to provide sewer service connection to the Temporary Structures, it being understood and agreed that the sewer line serving the Licensed Premises may be destroyed in connection with demolition taking place on the Property. Notwithstanding the foregoing, Licensor will contract for the initial repair (or initial replacement as applicable) of the sewer line, ensuring the sewer line is intact and can serve as a force main lateral for conveyance of wastewater from the Licensed Premises to its connection to the public sewer main in Cannon Road, provided that Licensee shall promptly upon demand reimburse Licensor for any such reasonable and documented costs and expenses (which are currently estimated to be $30,000); provided, further, that Licensor shall only so ensure that said sewer line is intact as aforesaid and can so serve as a force main lateral as aforesaid solely as of the time the City initiates use of said sewer line (and not as of any subsequent date). Prior to contracting for the initial repair (or initial replacement as applicable), Licensor shall consult with Licensee if the initial repair costs and expenses (or initial replacement as applicable) is anticipated to exceed $30,000. Licensee shall be solely responsible to contract for the repair or replacement of the existing lift station and service connection to the sewer line connecting to the Licensed Premises, and any such sewer connection shall be at Licensee's sole cost and expense. Notwithstanding the foregoing, Licensor understands that Licensee intends to install and maintain Utility Services and Facilities to serve the Licensed Premises. Beginning upon Licensee's Construction Commencement, Licensor shall be responsible for repairing any damage to the extent caused by the gross negligence or willful misconduct of either Licensor or Licensor's Related Persons to the Utility Services and Facilities serving the Licensed Premises, at no cost to Licensee. 5.3 Priority Processing and Finished Grade. Consistent with the City of Carlsbad General Plan, Land Use & Community Design Element Policy 2-P.83, Licensor intends to "determine specific uses, development standards, infrastructure, public improvements, site planning and amenities for the Property through a comprehensive planning process (e.g., specific plan, master plan, etc.) resulting in a redevelopment plan approved by the City Council." In connection with Licensor's intention to complete a redevelopment plan and eventually redevelop the Property (the "Redevelopment"), Licensee agrees that Licensee shall work in good faith to review, process and decide on a priority basis, to the extent practicable and consistent with all Laws, all planning applications and related forms pertaining to the Redevelopment. Upon Licensor's submission of a Land Use Review Application pertaining to the Property, as well as any ancillary or supplemental filings made in connection with such a Land Use Revi_ew Application, the Licensor and Licensee will establish a mutually agreeable written schedule of milestones for an expedited process to evaluate the proposals reflected in any such Land Use Review Application or similar permitting forms pertaining to the Property. The adherence to a priority planning process for the Property is supported by Licensor's and Licensee's agreement SMRH:4857-5235-1752.26 -14- June 21, 2022 Item #10 0XSN-323207 Page 30 of 107 that they have a "mutual interest in the productive reuse of the Encina Redevelopment Site." (Settlement Agreement Dated January 14, 2014 Between and Among the City of Carlsbad, Carlsbad Municipal Water District, Cabrillo Power l LLC, Carlsbad Energy Center LLC and San Diego Gas & Electric, Section 6.2(a).) Carlsbad Municipal Code Section 21.04.065, subsection (2), reads as follows: "if a discretionary permit for a development or alteration of an existing development is approved, and such approval includes a grading plan that shows a finished grade higher in elevation than the existing grade, then building height may be measured from the approved finished grade. In approving a finished grade through a discretionary permit that is higher in elevation than the existing grade, consideration shall be given to the natural topography of the site, compatibility with the existing grade of adjacent and surrounding properties, and the need to comply with required access, utility and drainage standards." Consistent with the foregoing, during any planning process triggered by the filing of a Land Use Review Application pertaining to the Redevelopment of the Property, City staff will consider and recommend the approval of a finished grade for the Property at the same or similar grade as the east side of Carlsbad Boulevard and will support the building height being measured from the approved finished grade as part of a comprehensive planning process. The approved finished grade as specified in this Section 5.3 will provide benefits to the community by allowing for the construction of new buildings on the Property to form a visual barrier between the bluff top adjacent to the beach on the west side of Carlsbad Boulevard and a certain SDG&E substation located generally in the center of the Property, which is currently situated above the grade of Carlsbad Boulevard and is a blight in terms of visual compatibility with surrounding uses. Other benefits of determining the adjusted finished grade in this manner include restoration of the natural grade that existed before tens of thousands of cubic yards of soil were excavated in construction of the former power plant, and filling of the resulting deep sump condition created by the demolition of the former power plant. Restoration of the natural grade will also allow for the creation of street-level beach parking, including for beach access, as contemplated in the recorded Irrevocable Offer of Dedication and will aid in the future construction of the public trail system as contemplated by Licensee. Considering and recommending the approval of a finished grade for the Property at the same grade as the east side of Carlsbad Boulevard and supporting building heights being measured from the approved finished grade is also supported under the Carlsbad General Plan Land Use and Community Design Element, Policy 2-P.83, which contemplates a " ... mix of visitor-serving commercial uses, such as retail and hotel uses, and with new community-accessible open spaces along Agua Hedionda Lagoon and the waterfront (Carlsbad Boulevard)" and "[e]ncourage[s] community gathering spaces, outdoor dining, and other features to maximize potential views of the ocean and the tagoon" and "shared parking arrangements so that a greater portion of the development can be active space rather than parking." Notwithstanding City staffs consideration and recommendation to approve a finished grade as described in this Section 5.3, the authority to review and approve the finished grade at the same grade as the east side of Carlsbad Boulevard and approve the building height being measured from the approved finished grade belongs to the City of Carlsbad Planning Commission and City Council, and the California Coastal Commission. City staffs recommendation to approve the finished grade as described in this Section 5.3 does not guarantee its approval. The terms of this Section 5.3 shall survive any expiration or earlier termination of this Agreement. SMRH:4857-5235-1752.26 -15- June 21, 2022 Item #10 0XSN-323207 Page 31 of 107 ARTICLE 6 -ADDITIONAL PROVISIONS RELATING TO THE ADDITIONAL LICENSES AND THE LICENSEE IMPROVEMENTS 6.1 Alteration of Facilities. Licensor shall not be obligated to alter, adjust, relocate, de-energize or shut down any property or facilities in connection with the construction, operation, use, repair, removal, dismantling or demolition of any of the Licensee Improvements, although, subject to the provisions of this Agreement, Licensor shall otherwise use its reasonable efforts to accommodate Licensee's construction plans, schedules, and routine maintenance and all costs and expenses incurred associated with such shall be reimbursed by Licensee upon demand. 6.2 Restoration of Premises. Promptly following completion of any construction, installation, excavation or repairs that it conducts on the Premises or any part thereof, Licensee shall (i) restore the Premises and each part thereof to the condition they were in before such construction, installation, excavation or repairs and (ii) leave the Premises and each part thereof free of debris and broom-clean. 6.3 Existence of Underground Facilities. Licensee shall instruct its Related Persons that the facilities within the Property may involve oil and gas pipelines, underground facilities, high voltage electrical lines and other items that could cause a risk of bodily injury or death, property damage or losses to Licensor; and Licensee shall require such Related Persons to adhere to and use, and shall be responsible for making certain that such Related Persons do adhere to and use, and shall itself use, all such safety and precautionary measures as are possible at all times while working on , in or under the Premises (or otherwise while on any part of the Property). 6.4 Property Rules and Plans. Licensee shall instruct its Related Persons that they must at all times be, and shall be responsible for making certain that such Related Persons at all times are, and shall itself at all times be, in material compliance with any safety rules, hazardous materials plans and other reasonable requests and requirements that Licensor has in place and from time to time puts in place with respect to the Property or any portion thereof, so long as Licensor has provided Licensee with copies of such rules, plans, requests and requirements. 6.5 Overburdening. The License and the Additional Licenses are intended to be used solely for the purposes set forth in this Agreement, and Licensee shall not grant or give any other person or entity the right to use the License, the Additional Licenses or the Licensee Improvements. Any expansion of the Fire Station, any increased use of the License, the Additional Licenses or the Licensee Improvements, and any granting of such rights shall constitute a prohibited overburdening of the License, the Additional Licenses and the Premises, unless Licensor's consent is first obtained therefor, which consent may be given or withheld in Licensor's sole discretion. ARTICLE 7 -TAXES AND ASSESSMENTS 7.1 Licensee's Responsibility To Pav. Subject to Licensee's right to contest the same pursuant to Section 19. l hereof, Licensee shall reimburse Licensor, any related Person of Licensor, or its site operator (which Licensor may designate from time to time), upon demand, for any increase in general and special assessments, ad valorem taxes, levies, fees or other charges of Governmental Bodies, which, at any time after the Construction Commencement Date and until SMRJ-l:4857-5235-1752.26 -16- June 21, 2022 Item #10 0XSN-323207 Page 32 of 107 the Expiration Date are imposed levied upon or assessed against the Premises and (i) arise in respect of the operation possession or u e of the Premises by Licensee, (ii) result from the execution or amendment of this Agreement, (iii) are imposed levied upon or assessed against the Licensee Improvements or any other fixtures, furnishings, equipment or other personal property of Licensee located anywhere on the Premises or (iv) are imposed, levied upon or assessed against the Property or Licensor by reason of the development, construction, operation po session or use of the License Improvements or any part thereof, or by reason of any other action of Licensee (coll.ectively, "Impositions"). If any Imposition may legally be paid in installments Licensee may pay such Imposition, including any interest, penalty or other charge thereon, in installments. ARTICLE 8 -LIENS 8.1 Bonding Over Liens. In the event that any charge, lien or encumbrance (each a 'Lien") including but not limited to a mechanic's or materialman s Lien is filed against the Property or any part thereof (including the Premises or any part thereof) in connection with action by Licensee or its Related Persons or any labor or materials furnished to or on behalf of Licensee or any Related Person of Licensee, then Licensee shall, at its sole cost and expense, remove, discharge or bond over such Lien (in each case of record, and in a manner sufficient to legally remove such Lien) within the soonest to occur of the following: (i) ninety (90) days from the date Licensee receives actual notice of the Lien; (ii) thirty (30) days before the date on which such Lien or the execution thereon could lead to a foreclosure on the Property or any portion thereof, or (iii) forty-five (45) days after receipt of written notice from Licensor requesting that Licensee remove di scharge or bond over such Lien. In the event that Licensee fails to remove discharge or bond over such Lien (in each case of record, and in a manner sufficient to legally remove such Lien) within the applicable period as just set forth Licensor may (but shall not be obligated to) without I im iting Licensor's other rights or remedies, without I iabi I ity to Licensee and without waiving such Licensee Event of Default, do so and charge Licensee, as Additional License Fee, all costs incurred by Licensor in connection therewith, including attorneys fees and interest on said amounts at the Applicable lnterest Rate, which Additional License Fee shall be paid immediately upon demand. This Section 8.1 shall survive the expiration or earlier termination of this Agreement. ARTICLE 9 -INSURANCE 9.1 Insurance To Be Obtained and Maintained by Licensee. Beginning upon the Effective Date and throughout the Term of this Agreement, Licensee shall obtain and maintain the following coverages: 9.1.l ommercial General Liability Insurance. Commercial General Liability insurance, written on an occurrence basis, shall be provided on Insurance Services Office (ISO) CGL Form o. CG 00 01 or the equivalent, including provisions for defense of additional insureds and defense costs in addition to limits. Policy limits shall be no less than one million dollars ($1 ,000 000) per occurrence for all coverage provided and two million dollars ($2,000 000) general aggregate. The coverage shall insure bodily injury (including death), property damage and personal injury and shall include coverage extensions for contractual liability, independent contractors premises/operations, products/completed operations, mobile equipment, separation of in sureds and no exclusions for explosion, collapse and/or underground hazards or lifting, rigging or boom overload. The lndemnitees (defined below) shall be added as additional insureds under SMRH:4857-5235-1752.26 -17- June 21, 2022 Item #10 0XSN-323207 Page 33 of 107 each such policy, and said status will extend to both ongoing and completed operations on endorsement forms equivalent to ISO CG 20 10 07 04, issued in combination with an ISO CG 20 37 07 04. 9.1.2 Business Automobile Insurance. Automobile Liability Insurance shall be written on ISO Business Auto Coverage Form CA 00 01 or the equivalent, including symbol (1) (any Auto), which shall specifically extend to all owned, non-owned and hired vehicles. Limit shall be no less than one million dollars ($1 ,000,000) combined single limit per accident. The Indemnitees shall be added as additional insureds under each such policy. 9.1.3 Workers' Compensation Insurance. Workers' Compensation Insurance, as required by the State of California, including, if applicable, U.S. Longshoreman and Harborworkers coverage, and Employer's Liability Insurance with a limit of not Less than one million dollars ($1 ,000,000) per accident/ per employee for bodily injury and disease. 9.1.4 Excess Liability Insurance. Liability insurance, written on an occurrence basis, with minimum I imits of ten million dollars ($ I 0,000,000) per occurrence, that will sit excess of the scheduled underlying Commercial General Liability, Automobile Liability and Employer's Liability insurance, on a following-form basis. 9.1.5 Contractor's Pollution Liability Coverage. One million dollars ($1 ,000,000) to respond to Licensee's legal liability for pollution claims arising out of Licensee's operations. The Indemnitees shall be added as additional insureds under the Contractor's Pollution Liability policy. 9.2 Insurance to be Obtained and Maintained by Licensee's Contractors. Beginning upon the Effective Date and throughout the Tenn of this Agreement, Licensee's agents, contractors and subcontractors shall obtain and maintain the same level of insurance as required by the City of Carlsbad's standard public works agreement, a sample of which is attached hereto as Exhibit "G". Licensee may not decrease any insurance requirements below the amounts shown in Exhibit "G" unless Licensor approves. Licensee shall cause each and all of Licensee's agents, contractors and subcontractors prior to such agent's contractor's and subcontractor's entry upon or other use of any portion of the Property or the Premises to (i) name Licensor as an additi.onal insured under each and all of the insurance policies each such agent, contractor and subcontractor is so required to obtain and maintain and (ii) to grant in writing a waiver of subrogation in favor of Licensor with respect to each such insurance pol icy, which grant shall be satisfactory to Licensor in form and substance in all respects. 9.3 Additional Requirements Regarding Insurance. Any insurance required under this this Article 9 shall be under policies issued by insurers acceptable to Licensor in all respects. For avoidance of doubt, the insurers shall have a minimum A.M. Best rating of A-, and a financial size of VII. The insurance provided hereunder shall be primary to, and shall not seek contribution from, any similar insurance being maintained by the Indemnitees. Waiver of subrogation shall be granted by each corresponding Licensee Related Person in favor of the Indemnitees, on all insurance policies required in this Article 9. Licensee shall provide evidence of all insurance required under this Article 9 (including, without limitation, certificates evidencing that the Indemnitees have been added as additional insureds, as provided above), the primary nature of the SMRH:4857-5235-1752.26 -18- June 21, 2022 Item #10 0XSN-323207 Page 34 of 107 applicable Licensee Related Person's insurance, and the waivers of subrogation noted herein) prior to any use of the Property or the Premises by any Licensee Related Person. As used herein, "lndemnitees" means Licensor, Licensor's site operator (which Licensor may designate from time to time) and any of their respective affiliates, operators, officers, directors, members, managers, financing entities, employees, agents and assignees. ARTICLE 10 -MAINTENANCE; COMPLIANCE WITH LAW; INSPECTION 10.1 Operations, Maintenance and Repair. Throughout the Term Of This Agreement, Licensee shall, at its sole cost and expense, (i) maintain the Licensee Improvements and all aspects of the Premises in accordance with prudent industry practices for facilities similar to the Licensee Improvements, reasonable wear and tear excepted, (ii) conduct its operations and activities on the Premises in a workmanlike and commercially reasonable manner, in accordance with good and accepted practices, and in a manner that does not create waste or a nuisance and that does not disturb or damage any other property or the occupants thereof, (iii) regularly clean up any litter or refuse deposited on the Premises by Licensee or any Licensee Related Person and (iv) provide adequate security and protection for the Licensee Improvements and all other personal property of Licensee or any of the Licensee Related Persons that are/is located on or about the Premises or any portion thereof, so as to protect the Licensee Improvements and such personal property against theft, vandalism, mischief and any other damage (the Parties hereby agreeing that Licensor shall have no obligation to provide any form of security or protection). Licensee shall not place any sign upon the Premises or any part thereof without Licensor's prior written consent in its sole and absolute discretion. 10.2 Compliance with Law. Licensee agrees that Licensee, all Licensee Related Persons and all Licensee Improvements shall comply with, and not violate (and Licensee shall not permit the violation of), any and all laws, statues, rules, regulations, ordinances, orders, determinations, permits (including the Licensee Permits), licenses, codes and controlling common law of Governmental Bodies, as well as any covenants, conditions, restrictions and other matters of title, which at any time during the Term Of This Agreement, are applicable to (i) this Agreement or the rights or interests created hereby, (ii) the Premises or any part thereof, or any activities thereon, (iii) the Licensee Improvements or any thereof, or (iv) the construction, alteration, use, operation, maintenance, existence, occupancy or removal of any thereof (collectively, "Law" or "Laws"). ARTICLE 11-ENVIRONMENTAL MATTERS 11.1 Additional Defined Terms. 11.1.1 "Hazardous Materials" shall mean any chemicals, materials, substances or wastes or any items, whether solid, liquid, gaseous, semisolid or any combination thereof, whether waste materials, raw materials, finished products, byproducts, or any other materials or articles, which are or later become listed, regulated, restricted or controlled as hazardous, toxic or dangerous under any Environmental Law or that are or have the characteristics of being hazardous, toxic, ignitable, reactive or corrosive, including petroleum products, asbestos, urea formaldehyde, foam insulation, lead-containing paints or coatings, PCBs, asbestos, materials known to cause SMRH:4857-5235-1752.26 -19- June 21, 2022 Item #10 0XSN-323207 Page 35 of 107 cancer or reproductive problems, infectious waste, medical waste and potentially infectious biomedical waste. 11.1.2 "Environmental Law" or "Environmental Laws" means (i) the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section 9601 , et seq., (ii) the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801 , et seq., (iii) the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 , et seq., (iv) the Federal Water Pollution Control Act aka the Clean Water Act, 33 U.S.C. Section 1251 , et seq., (v) the Clean Air Act, 42 U.S.C. Section 7401, et seq., (vi) the Toxic Substances Control Act, 15 U.S.C. Section 2601 , et seq., (vii) the Occupational Safety and Health Act, 29 U.S.C. Section 651 , et seq., (viii) the California Health & Safety Code; (ix) the California Water Code, (x) the California Fish & Game Code; (xi) the Endangered Species Act, 16 U.S.C. Section 1531 , et seq.; (xii) any Laws that are similar to the foregoing; and (xiii) any Laws that govern or protect the environment, including any Laws relating to endangered species, wetlands and environmental impacts; in each such case (a) whether such Laws exist as of the Effective Date or are hereafter enacted and (b) to the extent applicable to (I) this Agreement or the rights or interests created hereby, (2) the Property or any part thereof, or any activities thereon, (3) the Licensee Improvements or any thereof, (4) any property of Licensor or (5) the construction, alteration, use, operation, maintenance, existence, occupancy or removal of any thereof. 11.1.3 "Governmental Body" or "Governmental Bodies" means (i) any federal , state, local, foreign or other government; (ii) any governmental, regulatory or administrative agency, commission, body or other authority exercising or entitled to exercise any administrative, executive, judicial, legislative, police, regulatory or taxing authority or power; or (iii) any court or governmental tribunal. 11.1.4 "Remediation/Investigation Measures" means any (i) investigation, monitoring, clean-up, containment, remediation, mitigation, removal, disposal or treatment of Hazardous Materials in, on or under the soil or groundwater of the Premises or any other part of the Property, or any improvements thereon (including any Licensee Improvements), as required under any Environmental Law, including the preparation and implementation of any work plans and the obtaining of authorizations, approvals and permits from Governmental Bodies with respect thereto and (ii) any response to, or preparation from, any inquiry, order, hearing or other proceeding by or before any Governmental Body with respect to any Hazardous Materials in, on or under the Premises or any other part of the Property, or any improvements thereon (including any Licensee Improvements). 11.2 Matters Relating To Hazardous Materials. 11.2. l Neither Licensee nor its Related Persons shall use, generate, manufacture, produce, process, store or dispose of Hazardous Materials on, under or about the Property or transport Hazardous Materials on, under, across, to or from the Property; provided, however, that nothing set forth above in this Section 11.2. l shall prohibit the following activities provided that they are at all times conducted in all respects in full compliance with all applicable Law (including, without limitation, Environmental Law): (i) the use, storage, or transportation of any Hazardous Materials, including medical waste and oxygen, in each case to the extent necessary for the continued permitted operations of Licensee at the Premises in accordance with the Intended Use, SMRH:4857-5235-1752.26 -20- June 21, 2022 Item #10 0XSN-323207 Page 36 of 107 (ii) the use or storage of cleaning and other products used or stored in connection with routine maintenance or repair of the Licensee Improvements, and (iii) the use of gas, oil and other ordinary automotive fluids typically used in Licensee's temporary fire station operations. Licensee shall, at its own expense, procure, maintain in effect and comply with any permits (including the Licensee Permits), licenses and other approvals of Governmental Bodies required for the storage or use by Licensee or any of its Related Persons of Hazardous Materials on the Premises. Licensee shall provide material safety data sheets, if required by law, on any and all chemicals including foam fire retardant proposed to be stored in any form on the Premises. No such chemicals shall contain per-and polyfluoroalkyl substances. Prior to storing any hazardous materials on the Property in reportable quantities subject to a Hazardous Materials Business Plan under California Code of Regulations Title 19, Division 2 or a Spill Pollution Control and Counter-Measures Plan under the Code of Federal Regulations Title 40, Part 1 12, Licensee shall meet all requirements and obtain all necessary approvals from the Certified Unified Program Agency (CUPA) having jurisdiction. 1 1 .2.2 If at any time during the Term Of This Agreement any contamination of soil or groundwater in, on, or under the Property or any part thereof by Hazardous Materials brought onto the Property or any part thereof by Licensee or any of its Related Persons shall occur (the "Licensee Contamination"), then Licensee, at its cost, shall promptly perform all Remediation/Investigation Measures and remove the Licensee Contamination from the Property and/or the groundwater underlying the Property (as applicable) in accordance with the requirements of this Agreement and Environmental Law; provided, however, that (i) such performance and removal shall be consistent with the indemnities provided in Section 11 .3 hereof and (ii) Licensee shall not undertake any such performance or removal of, or enter into any settlement agreement, consent, decree or other compromise in respect to any claims relating to, the Licensee Contamination without first notifying Licensor in writing of Licensee's intention to do so and affording Licensor a reasonable opportunity to appear, intervene or otherwise appropriately assert and protect Licensor's interests with respect thereto. If Licensee does not (a) promptly and diligently take all steps to prepare and obtain the necessary approvals and consents (including Licensor's approval) for an appropriate remediation plan for the Licensee Contamination, (b) commence the required remediation within sixty (60) days after (1) Licensor has reasonably approved Licensee's remediation plan and (2) Licensee has obtained all the necessary approvals and consents and (c) diligently conduct said remediation to completion in accordance with the approved remediation plan, then Licensor, at its sole discretion, without limitation on any of its other rights and remedies, without liability to Licensee and without waiving such Licensee Event of Default, shall have the right, but not the obi igation, to cause said remediation to be accomplished, and to charge Licensee, as Additional License Fee, all costs incurred by Licensor in connection therewith, including attorneys' fees and interest on said amounts at the Appli cable Interest Rate, which Additional License Fee shall be paid immediately upon demand. Further, upon Licensor's request made at any time and from time to time, Licensee shall promptly deliver to Licensor copies of any Hazardous Materials manifests reflecting the legal and proper handling, transportation and disposal of Hazardous Materials discovered, used or removed from the Premises as part of Licensee's remediation of the Licensee Contamination. 11.2.3 Except as otherwise removed from the Property in conformity with Environmental Law, Licensee shall cause any Hazardous Materials removed from the Property or any portion thereof, as part of the required remediation of Licensee Contamination, to be removed SMRH:4857-5235-1752.26 -21- June 21, 2022 Item #10 0XSN-323207 Page 37 of 107 and transported by duly licensed haulers to duly licensed facilities for final disposal of such Hazardous Materials in accordance with Environmental Law. 11.3 Environmental Indemnification. 11.3.l Without limiting the generality of Section 16.l hereof, Licensee shall indemnify, defend (by counsel selected by Licensee and reasonably acceptable to Licensor), protect and hold Licensor and Licensor's Related Persons free and harmless from and against any and all claims, demands, actions, causes of action, suits, liabilities, penalties, forfeitures, damages, losses, expenses, fines, liens, settlements judgments or costs (including reasonable attorneys' fees, expert witness fees and costs through litigation and all appeals) (collectively, "Damages") arising from or in connection with the death of or injury to any person, or damage to any property whatsoever (including any property of Licensor), to the extent arising from (i) any Licensee Contamination, or (ii) Licensee's failure to comply with any Environmental Laws. Licensee's obligations under this Section 11.3.1 shall include, whether foreseeable or unforeseeable, (a) the costs of any required or necessary repair, clean-up, remediation, investigation, detoxification or decontamination of the Property or any part thereof, (b) the preparation and implementation of any closure, remedial action or other required plans in connection therewith and (c) compliance with all Remediation/Investigation Measures. For purposes of the indemnity provisions hereof, any acts or omissions of Licensee's Related Persons shall be attributed to Licensee. This Section 11.3. l shall survive the expiration or earlier termination of this Agreement. 11.3.2 Notwithstanding any other provision herein to the contrary, if Licensee is not performing its obligations under this Agreement with respect to Hazardous Materials, then Licensor, at its sole discretion, without limitation on any of its other rights and remedies, without liability to Licensee and without waiving such Licensee Event of Default, shall have the right, but not the obligation, acting in accordance with prudent industry practices and taking into account such matters as it reasonably considers appropriate (which may include, without limitation, the activities at the Property, the Licensor Risk Factors, the Fire Station and the sensitive marine environment), to immediately enter onto the Premises, with prior written notice to Licensee (or, if prior notice is not practical, with subsequent notice as soon as possible)1 and take such steps as it deems appropriate to (1) prevent any imminent Hazardous Materials release, (2) reduce any Hazardous Materials release, (3) contain or clean up any Hazardous Materials release and (4) execute Hazardous Materials transp011ation manifests in Licensee's name to licensed Hazardous Materials transporters to remove such remediated Hazardous Materials off the Property and dispose of the same in compliance with Environmental Law. All reasonable documented costs incurred by Licensor in connection therewith, together with reasonable attorneys' fees and interest on said amounts at the Applicable Interest Rate, shall be Additional License Fee and shall be paid to Licensor immediately upon demand. 11.4 Wetlands and Other Sensitive Lands. Licensee shall not disturb or permit any disturbance of any wetland or other environmentally sensitive land that is subject to any Environmental Law, and Licensee shall not destroy, injure or move, or permit or cause anyone else to destroy, injure or move, any species of endangered or threatened animal, fi sh, fowl or plant, or the habitat thereof, except as required under, and in accordance with, Laws. SMRH:4857-5235-1752.26 -22- June 21, 2022 Item #10 0XSN-323207 Page 38 of 107 ARTICLE 12 -TITLE; QUIET ENJOYMENT 12.1 Permitted Exceptions. Licensee acknowledges and agrees that the License, the Additional Licenses, Licensee s intere t in the Premises and any Licensee Improvements, and Licensee's rights under this Agreement are all subject and subordinate to (i) non-delinquent taxes and assessments; (ii) all covenants, conditions, restrictions, reservations, rights of way easements, license encumbrances leases, agreements, contracts, permits, Laws and any other matter affecting title to or the use of the Premises or any other lands associated with the Property, whether or not of record (iii) all matters which would be disclosed by an inspection or accurate AL TA/ ACSM survey, (iv) all rights of any tenants, or other occupants of all or any portion of the Property (including, without limitation, Poseidon Clearway Energy, or Licen or's aquafarming tenant) and (v) all rights reserved by Licensor under this Agreement. uch items (i) through (v) are collectively referred to herein as the "Permitted Exceptions". 12.2 Consent To Use. Licensee shall conduct its activities under this Agreement (including its construction and operation of the Licensee Improvements) so as not to conflict with the rights of third parties pursuant to any Permitted Exceptions. To the extent that any third partie have pre-existing rights on, over or to any of the Premises, Licensee hall be entitled, at its sole cost and expense, to request that such third party consent to Licensee's use of the Premises; provided however that (i) Licensee shall before contacting any such third party, obtain Licensor's consent thereto, which shall not unreasonably be withheld, (ii) Licensee shall provide Licensor with a reasonable opportunity to be involved in any contacts or negotiations with such third party and (iii) Licensor shall reasonably cooperate with Licensee's efforts to obtain such consents. Notwith tanding the foregoing, all rights of Licensee under this Agreement (including without limitation, with respect to all or any portion of the Premises) (a) shall be in all respects subject and subordinate to the right of any Existing Occupants, licensees, or other occupants of all or any portion of the Property and (b) shall not include (and shall automatically exclude) any use that (X) cannot be safely and reasonably accommodated given existing uses by other tenants licensees or other occupants or (Y) unreasonably interferes with the use or quiet enjoyment of any such Existing Occupants, licensees, or other occupants of all or any portion of the Property. 12.3 Grant of Additional Rights. Licensor reserves the right to, from time to time, grant such easements, rights of way, licenses, dedications and other rights on, over, under and across the Property that Licensor reasonably deems necessary or desirable, so long as the same would not reasonably be expected to have a Material Adverse Effect on the License, the Intended Use or the Additional Licenses; provided however, that no such right may be granted by Licensor on over, under or across the Licensed Premises without Licensor having consulted with Licensee . .If Licensor so requests, Licensee shall promptly (but in any event within ten (I 0) days after request) deliver any documentation reasonably requested by Licensor with respect to any such ea ements right of way, licenses dedications and agreements. 12.4 No Warranty Regarding Title. Nothing in this Agreement shall be construed as a warranty or representation by Licensor concerning Licensor s title to the Property or any part thereof (including the Premises), and Licensor makes no such warranty or representation. Licensee acknowledges and agrees that Licensee is relying solely upon Licensee's own investigations respecting the condition of title to the Property. SMRH:4857-5235-1752.26 -23- June 21, 2022 Item #10 0XSN-323207 Page 39 of 107 12.5 Ownership of Temporary Structures. The Temporary Structures are and shall remain the separate property of Licensee; provided that any Licensee Improvements that are permanently affixed to the Premises, including but not limited to the Watercraft Access Improvements and the Fence and Gate Improvements, excluding the Opticom, shall automatically become Licensor's property from and after the date upon which the Watercraft Access Improvements and the Fence and Gate Improvements (as applicable) are constructed or otherwise installed upon the Property and shall not be removed by Licensee following any expiration or termination of this Agreement, unless otherwise requested by Licensor. ARTICLE 13 -ASSIGNMENT 13.1 Assignment By Licensee. Licensee shall not, and shall not be permitted to, assign, sublicense or otherwise transfer all or any portion of its interests or rights under this Agreement. Any attempted assignment, sublicense or other transfer in violation of this Section 13. I shall be automatically void and of no force or effect. 13.2 Conveyance By Licensor. Licensor may freely sell, assign and/or mortgage or otherwise transfer all or any portion of its interest in the Property or any part thereof (including in any of the Premises) without Licensee's approval. ARTICLE 14 -DAMAGE AND DESTRUCTION 14.1 Damage or Destruction. 14.1.1 In the event of any damage to the Licensee Improvements by fire or other casualty, Licensee's obligation to pay the License Fee shall continue and not be abated; provided, however, that if Licensee is required, in Licensee's reasonable business judgment, to permanently discontinue operating the Fire Station due to such casualty, then Licensee may provide Licensor with thirty (30) days written notice thereof, and upon the giving of such notice the Parties shall cooperatively and in good faith negotiate a mutually acceptable winding up procedure in light of such casualty and the requirements of this Agreement, and Licensee shall comply with the requirements of Sections 1 7 .1 and 17 .2 hereof. 14.1.2 Licensee shall promptly give notice to Licensor of any material casualty or damage to any of the Licensee Improvements or any part thereof, or otherwise occurring on or about the Premises or any part thereof. ARTICLE 15-DEFAULT AND REMEDIES 15.1 Default By Licensee. 15. l. l Each of the following shall constitute a breach of this Agreement and a "Licensee Event of Default" hereunder: (i) Licensee's failure to pay any installment or payment of the License Fee when due and payable hereunder; (ii) Licensee's violation of or failure to comply with any of the material terms, covenants, conditions or requirements of this Agreement, including, without limitation, Licensee Permits (iii) the failure or material breach of any warranty or representation of Licensee under this Agreement and (iv) Licensee's abandonment of the Licensed Premises. If a Licensee Event of Default occurs, (a) Licensor may give written notice SMRH:4857-5235-1752.26 -24- June 21, 2022 Item #10 0XSN-323207 Page 40 of 107 thereof to Licensee, which notice shall generally describe the nature of the action required to cure such Licensee Event of Default, if the same is curable (each, a "Notice of Licensee Event of Default") and (b) if Licensee fails to cure such Licensee Event of Default within the applicable curative period oftime set forth in Section 15.l.2 or 15.1.3 hereof, then a "Licensee Default" shall occur hereunder; provided, however, that a Licensee Event of Default under clause (iv) of this Section 15.1.1 shall conclusively be deemed not to be curable for purposes of this Agreement, and shall, notwithstanding Section 15 .1.3 hereof, automatically constitute a Licensee Default hereunder. 15 .1.2 If a Licensee Event of Defau It occurs that is monetary in nature ( such as the nonpayment of License Fee), then Licensee shall have ten (10) days to cure such Licensee Event of Default after Licensor gives the Notice of Licensee Event of Default therefor. 15.1.3 If a Licensee Event of Default occurs that is non-monetary in nature, then Licensee shall have thirty (30) days to cure such Licensee Event of Default after the giving of the Notice of Licensee Event of Default therefor; provided, however, that if the nature of such Licensee Event of Default is such that it is not capable of being cured within such thirty (30) day period, then, subject to Section 15 .1.4 hereof, so long as Licensee has commenced such cure and is diligently and in good faith prosecuting the same to completion, such thirty (30) day period shall be extended for such time as is reasonably necessary under the circumstances for curing such Licensee Event of Default up to (but not to exceed) one hundred and eighty (180) days in the aggregate. 15.1.4 If a non-monetary Licensee Event of Default occurs, Licensor, without thereby waiving such Licensee Event of Default, may (but shall not be obligated to), without liability to Licensee, take such steps as may be necessary or appropriate to perform the defaulted obligations of Licensee, (i) without notice in a case of emergency and (ii) except where otherwise provided in this Agreement, in any other case only if such Licensee Event of Default continues after the expiration of the applicable period set forth herein for such cure. All reasonable costs incurred by Licensor in connection with such performance, including attorneys' fees and interest on said amounts at the Applicable Interest Rate, shall be and shall constitute Additional License Fee and shall be due and payable immediately upon Licensor's demand therefor. Notwithstanding Section 15.1.3 hereof, the foregoing provisions of this Section 15.1.4 and any other provision of this Agreement that may be construed to the contrary, if such non-monetary Licensee Event of Default (a) could reasonably be expected to have a Material Adverse Effect on any Licensor Risk Factor, (b) constitutes damage or imminent threat to life or property, (c) places Licensor in violation of any Law or ( d) creates or threatens to create any Licensee Contamination, then, upon the giving of such Notice of Licensee Event of Default (and in addition to the foregoing requirements and not in lieu thereof), (1) Licensee shall immediately commence to cure such Licensee E vent of Default and (2) if Licensee fails to immediately commence such cure then, in addition to any of its other rights and remedies provided in this Agreement, Licensor may (but shall not be obligated to), without liability to Licensee and without waiving such Licensee Event of Default, take such steps as may be necessary or appropriate to effect such cure, and charge Licensee, as Additional License Fee, all reasonable costs incurred by Licensor in connection therewith, including attorneys' fees and interest on said amounts at the Applicable Interest Rate. As used in this Agreement, the tenn "Applicable Interest Rate" means with interest at the lesser of the following: (a) the prime rate of interest published in The Wall Street Journal plus three SMRH:4857-5235-1752.26 -25- June 21, 2022 Item #10 0XSN-323207 Page 41 of 107 percent (3%) or (b) the highest rate allowed by Law; in each case from the date of such expenditure until the date of payment 15.2 Remedies Upon a Licensee Default. If a Licensee Default has occurred hereunder, then Licensor shall have any and all rights and remedies now or later available to Licensor hereunder, in law or in equity, including specific performance. Without limiting the generality of the foregoing, Licensor may charge Licensee a late charge. Licensee hereby acknowledges that late payment by Licensee of License Fee will cause Licensor to incur costs not contemplated by this Agreement, the exact amount of which will be extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges. Accordingly, if any License Fee is not be received by Licensor within five (5) days after such amount is due hereunder, then, without any requirement for notice to Licensee, Licensee shall pay to Licensor a one-time late charge equal to ten percent (10%) of each such overdue amount. The Parties hereby agree that such late charge represents a fair and reasonable estimate of the costs Licensor will incur by reason of such late payment. 15.3 Default By Licensor. 15.3.1 Licensor's violation of any of the material terms, conditions or requirements of this Agreement to be performed by Licensor shall be and constitute a breach of this Agreement and thus a "Licensor Event of Default" hereunder. If Licensor fails to cure such Licensor Event of Default within all applicable curative periods ohime set forth in Section 15 .3.2 or 15.3.3 hereof, then a "Licensor Default" shall occur hereunder. 15.3.2 If the alleged Licensor Event of Default is monetary in nature (such as nonpayment of sums which are Licensor's responsibility hereunder and, if unpaid, would subject the Licensed Premises or this Agreement to a claim of lien), Licensor shall have twenty (20) days after Licensor's receipt of Licensee's written notice of such Licensor Event of Default to cure such Licensor Event of Default. 15.3.3 If the alleged Licensor Event of Default is non-monetary in nature, Licensor shall have thirty (30) days after Licensor's receipt of Licensee's written notice specifying the nature of the action required to cure such Licensor Event of Default; provided, however, that if after the exercise of due diligence and good faith efforts to cure such Licensor Event of Default Licensor is unable to do so within such thirty (30) day period, then the curing period shall be extended for such time as is reasonably necessary under the circumstances for curing such Licensor Event of Default (not to exceed one hundred eighty (180) days), so long as Licensor continues to diligently prosecute to completion the curing of such Licensor Event of Default. 15.4 Remedies Upon a Licensor Default. If a Licensor Default occurs, Licensee's sole and exclusive remedy shall be a suit for monetary damages; provided, however, that notwithstanding anything to the contrary, Licensee's maximum recovery for any and all such suits, under any and all theories of damages or recovery in any way relating to or arising in respect of this Agreement or any rights hereunder, shall not exceed Five Hundred Thousand Dollars ($500,000) in the aggregate. Without limiting the generality of the foregoing, it is expressly acknowledged and agreed that (i) Licensee's rights under this Agreement are contract rights only SMRH:4857-5235-1752.26 -26- June 21, 2022 Item #10 0XSN-323207 Page 42 of 107 and do not constitute property rights and (ii) in no event shall Licensee be entitled to any equitable remedies (including, without limitation, specific performance). 15.5 No Waiver. The rights and remedies of Licensor under this Article 15 shall be cumulative, shall not be exclusive of any other right or remedy available to Licensor hereunder, at law or in equity. Failure by Licensor to insist upon the strict performance of any provision hereof or to exercise any option, right, power or remedy contained herein shall not constitute a waiver or relinquishment thereof for the future. No payment by Licensee of a lesser amount than the License Fee nor any endorsement on any check or letter accompanying any check or payment as License Fee shall be deemed an accord in satisfaction of full payment of License Fee; and Licensor may accept such payment without prejudice to Licensor's right to recover the balance of such License Fee or to pursue other rights or remedies. Licensor's acceptance of a late charge under Section 15.2 hereof shall in no event constitute a waiver of any Licensee Event of Default or Licensee Default with respect to such overdue amount, nor prevent the exercise of any of the other rights and remedies available to Licensor. The receipt and deposit by Licensor of any License Fee or other sums payable hereunder with knowledge of a Licensee Event of Default or Licensee Default shall not constitute a waiver of such Licensee Event of Default or Licensee Default. No waiver by Licensor of any provision hereof shall be deemed to have occurred unless such Party expressly makes such waiver in writing. 15.6 Estoppel Certificates. Licensee shall, upon twenty (20) days' notice from Licensor, execute, acknowledge and deliver to Licensor a certificate of Licensee stating that (i) this Agreement is unmodified and in full force and effect (or, if there have been modifications, that this Agreement is in full force and effect as modified, and setting forth such modifications), (ii) the dates to which License Fee and other sums payable hereunder have been paid to Licensor and (iii) either stating that to Licensee's actual knowledge, and upon inquiry, no Licensor Event of Default exists hereunder, or specifying each such Licensor Event of Default known to Licensee. Any such certificate may be relied upon by any person or entity with a legitimate business purpose for obtaining the same. ARTICLE 16-INDEMNIFICATION, LIMITATION OF LIABILITY AND RELEASE 16.1 Indemnity By Licensee. Licensee shall indemnify, defend, protect and hold harmless Licensor and each of Licensor's Related Persons from and against any and all Damages arising from injury to or death of any person or damage to or loss of any real or personal property, or arising from any other source, which arises out of or in connection with any of the following (except to the extent (A) caused by Licensor or any of Licensor's agents, contractors or subcontractors, or (B) caused by the gross negligence or willful misconduct of any other tenant or licensee of Licensor to the extent such tenant or licensee has an obligation to indemnify, defend, protect and hold harmless Licensor from such Damages): (i) any acts, activities or omissions by or of Licensee, any Related Person of Licensee, or any other person or entity, on, about or with respect to the Licensed Premises or any part thereof, (ii) any acts, activities or omissions by or of Licensee or any Related Person of Licensee on or with respect to the Property, (iii) without limiting any obligations of Licensee under the foregoing clauses (i) and (ii), any acts, activities or omissions by or of any of Licensee's agents, contractors or subcontractors (including, without limitation, with respect to any actions by any such agents, contractors or subcontractors), (iv) Licensee's failure to perform its obligations under this Agreement, or (v) the failure of any representation or warranty SMRH:4857-5235-1752.26 -27- June 21, 2022 Item #10 0XSN-323207 Page 43 of 107 of Licensee provided in this Agreement. If a claim covered by clauses (i) or (ii) of this Section 16.1 solely involves injury to or death of a third person, or damage to or loss of any third person's real or personal property, then Licensee shall have the right to assume the defense of such claim, on behalf of both itself and Licensor, so long as the lawyers selected by Licensee to handle such defense are reasonably satisfactory to Licensor and such representation does not result in a conflict of interest for such lawyers. Licensee may not settle any such claim without Licensor's consent, which consent shall not be unreasonably withheld, conditioned or delayed. This Article 16 shall survive the expiration or earlier termination of this Agreement ARTICLE 17 -SURRENDER, TERMINATION AND RESTORATION 17.1 Surrender. Prior to the Expiration Date or the sooner termination of this Agreement, Licensee shall vacate the Licensed Premises and shall surrender the Licensed Premises to Licensor; provided, however, that notwithstanding any other provision of this Agreement that may be construed to the contrary (including the fact that the License and the Additional Licenses will have terminated), all of the rights and remedies that each party has against the other party under this Agreement, and all of the obligations of each party to the other party under this Agreement (including the payment of License Fee), shall survive such expiration or earlier termination until all of Licensee's obligations under Sections 17.2 and 17.3 hereof have been completed. 17.2 Restoration. Prior to the Expiration Date or the sooner termination of this Agreement, Licensee shall, at Licensee's sole cost and expense: (i) restore the Premises in a clean and good condition and to its condition prior to Licensee's construction of the Licensee Improvements, including, without limitation, removal of any Licensee Improvements if required under any Licensee Permit or other permit, and promptly repair any damage caused to the Property or any part thereof by such restoration; and (ii) leave the Premises and each part thereof free of debris and broom-clean. 17.3 Early Termination. 17 .3 .1 Without limiting any other rights of Licensor (including, without limitation, any other termination rights), Licensor shall have the right to terminate this Agreement upon the earlier of (i) the failure, by the date occurring twelve (12) months after the Effective Date, of Licensee to secure the Licensee Permits to erect and operate the Temporary Structures, (ii) the failure, by the date occurring eighteen (18) months after the Effective Date, for the Occupancy Date to have occurred, and (iii) the Relocation. As used herein, "Occupancy Date" shall mean the date upon which the City of Carlsbad issues a Certificate of Occupancy to Licensee for the temporary Fire Station. 17.3.2 Licensee may terminate the License at any time, upon thirty (30) days written notice to Licensor. 17.4 Effect of Termination. Notwithstanding any other provision of this Agreement to the contrary, the expiration or earlier termination of this Agreement (regardless of the cause thereof) shall not relieve either Party from any liabilities, obligations or indemnities that arose prior to the effective date of such expiration or termination. SMRH:4857-5235-1752.26 -28- June 21, 2022 Item #10 0XSN-323207 Page 44 of 107 ARTICLE 18 -REPRESENT A TIO NS AND .WARRANTIES; DISCLAIMER 18.1 Licensee's Representations and Warranties. Licensee hereby represents and warrants to Licensor that: 18.1. l Licensee is a municipal corporation, organized, existing and in good standing under the Laws of the State of California and qualified to do business in the State of California. 18.1.2 There are no proceedings pending or to Licensee's actual knowledge, threatened before any Governmental Body that would have a Material Adverse Effect on the financial condition of Licensee, the ability of Licensee to enter into this Agreement or the validity or enforceability of this Agreement. 18.1.3 There is no provision of any existing mortgage, indenture, contract or agreement binding on Licensee that would conflict with or in any way prevent the execution, delivery or performance by Licensee of the terms of this Agreement. 18.1.4 The execution and delivery of this Agreement has been duly authorized by all municipal corporate action of Licensee. 18.2 Disclaimer. LICENSEE ACKNOWLEDGES AND AGREES THAT, EXCEPT AS SPECIFICALLY AND EXPRESSLY SET FORTH IN THJS AGREEMENT, LICENSOR DOES NOT MAKE, AND HAS NOT MADE, ANY W ARRANTJES, REPRESENTATIONS OR CERTIFICATIONS, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING: (I) THE PAST, EXISTING OR FUTURE LEGAL, PHYSICAL OR FINANCIAL CONDITION OF THE OVERALL PROPERTY OR ANY PART THEREOF; (II) COMPLIANCE WITH ANY LAWS PERTAJNING TO THE PROPERTY OR ANY PART THEREOF AS IT PRESENTLY EXISTS OR AS MAY BE REQUIRED FOR ANY FUTURE USE (INCLUDING THE INTENDED USE); (Ill) MATTERS PERTAINING TO THE OWNERSHIP, DEVELOPMENT, SUBDIVISION, MAINTENANCE, LEASING, SALE, PERMITTING, ZONING, PERMITTED USES OR AVAILABILITY OF UTILITIES OR INFRASTRUCTURE WITH RESPECT TO THE PROPERTY OR ANY PART THEREOF; (IV) THE FITNESS OF THE PROPERTY OR ANY PART THEREOF FOR ANY USE, BUILDING OR PROJECT (INCLUDING THE LICENSEE IMPROVEMENTS), INCLUDING (A) THE CHARACTERJSTICS OF THE PROPERTY OR ANY PART THEREOF WITH RESPECT TO ENDANGERED SPECIES OR HABITATS, (B) THE CHARACTERIZATION OF SURROUNDING PROPERTIES FOR EITHER ENDANGERED SPECIES OR HABITATS AND/OR (C) ANY RESTRJCTIONS, LIMITATIONS, REQUIREMENTS OR DECISIONS OF ANY GOVERNMENTAL BODY WITH RESPECT TO THE PROPERTY OR ANY PART THEREOF OR THE SURROUNDING AREA; (V) TITLE TO THE PROPERTY OR ANY PART THEREOF; OR (VI) ANY THIRD PARTY CONSENTS THAT MAY BE REQUIRED FOR ANY PURPOSE (INCLUDING FOR THE INTENDED USE. LICENSOR SHALL NOT BE LIABLE, RESPONSIBLE OR BOUND IN ANY MANNER FOR ANY VERBAL OR WRITTEN STATEMENTS, DOCUMENTS, DATA, REPRESENTATIONS OR OTHER INFORMATION PERTAINING TO THE PROPERTY, ANY PART THEREOF OR ANY OTHER MATTER, FURNISHED TO LICENSEE, ANY RELATED PERSON OF LICENSEE SMRH:4857-5235-1752.26 -29- June 21, 2022 Item #10 0XSN-323207 Page 45 of 107 OR ANYONE ELSE BY LICENSOR, ANY OF LICENSOR'S RELATED PERSONS OR ANY OTHER PERSON. EXCEPT AS SPECIFICALLY AND EXPRESSLY SET FORTH IN THIS AGREEMENT, LICENSEE HEREBY ACKNOWLEDGES AND AGREES THAT (1) LICENSEE IS AND WILL BE LICENSING THE PREMISES IN THEIR RESPECTIVE "AS IS" CONDITION AS SUCH CONDITION EXISTS AS OF THE CONSTRUCTION COMMENCEMENT DATE AND "WITH ALL FAULTS", (2) LICENSEE IS RELYING SOLELY UPON ITS OWN INSPECTIONS, INVESTIGATIONS, REVIEWS AND DILIGENCE AND (3) IF CIRCUMSTANCES, CONDITIONS OR FACTS TURN OUT TO IN ANY WAY BE DIFFERENT FROM WHAT LICENSEE BELIEVES OR ANTICIPATES, LICENSEE SHALL NOT BE RELIEVED OF ANY OBLIGATIONS UNDER THIS AGREEMENT WHICH SHALL REMAIN IN FULL FORCE AND EFFECT, NOR SHALL ANY SUCH CIRCUMSTANCES, CONDITIONS ORF ACTS GIVE RISE TO ANY RIGHT OF DAMAGES, RESCISSION, REFORMATION, COST RECOVERY, OR ANY OTHER REMEDY WHATSOEVER AGAINST LICENSOR. LICENSEE AGREES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NOT TO ASSERT, AND HEREBY WAIVES, ANY CLAIM AGAINST LICENSOR, ON ANY THEORY OF LIABILITY, FOR SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOSS OF PROFITS OR ANTICIPATED SAVINGS), RESULTING FROM THIS AGREEMENT OR ARISING OUT OF LICENSOR'S OR LICENSOR'S RE E PERSONS' ACTIVITIES IN CONNECTION HEREWITH OR THEREWITH. ARTICLE 19 -MISCELLANEOUS PROVISIONS 19.1 Permitted Contests. So long as the same will not have a Material Adverse Effect on any Licensor Risk Factor, Licensee may, in its own name and at its own cost and expense, contest any Impositions, Laws or Liens in any manner permitted by Law; provided, however, that in order to challenge any Lien, Licensee must bond over such Lien within the time period and in the manner provided in Section 8.1 hereof. So long as the same will not have a Material Adverse Effect on any Licensor Risk Factor and Licensee bears all of the cost thereof, such contest may include appeals from any judgment, decrees or orders until a final determination is made by a Governmental Body having final jurisdiction in the matter. Licensee shall pay the contested Impositions or Liens or comply with any contested Laws if not paying or complying with the same would cause the Property or any part thereof to be in imminent danger of being forfeited, foreclosed or lost, or would interfere in any way with Licensor's activities, operations or obligations. Any refund with respect to Impositions, Laws or L iens previously paid by Licensee shall, after payment of all monies due Licensor, be the property of Licensee. In the event Licensee shall contest any Impositions, Laws or Liens, it shall comply with the requirements of Law as to conditions precedent to making such contest. This Section 19 .1 shaJl survive the termination of this Agreement. 19.2 Holdover. Licensee has no right to retain possession or use of the Licensed Premises, the Premises or any part thereof beyond the Restoration Period. If Licensee does remain in possession or continue its use of the Premises or any part thereof after the Restoration Period with Licensor's consent (which consent may be withheld in Licensor's sole and absolute SMRH:4857-5235-1752.26 -30- June 21, 2022 Item #10 0XSN-323207 Page 46 of 107 discretion), then Licensee shall become a licensee on a month-to-month basis and shall pay to Licensor (i) Additional License Fee, as the same may become due and (ii) the monthly Basic License Fee equal to one hundred and twenty-five percent (125%) of the Basic License Fee payable by Licensee in the last month prior to such expiration or termination, and thereafter the Basic License Fee due for each successive month shall be one hundred and twenty-five percent (125%) of the Basic License Fee payable by Licensee in the month immediately preceding such successive month. Notwithstanding that Licensor may allow Licensee to continue in possession and use after the expiration or sooner termination of this Agreement, neither that nor the provisions of this Section 19 .2 shall constitute a waiver of any of Licensor's rights or remedies under this Agreement, including under Section 15 .2 hereof. 19.3 Notices. Notices, correspondence, demands, designations, certificates, requests, offers, consents, approvals and other instruments given pursuant to this Agreement shall be in writing and shall be deemed duly served and given (i) when received if mailed by a nationally recognized overnight delivery service or (ii) three (3) days after being mailed by prepaid registered or certified mail, return receipt requested, in each case addressed to: If to Licensor: If to Licensee: CABRJLLO POWER I LLC c/o NRG Energy, Inc. 910 Louisiana Street Houston, Texas 77002 Attention: Asset Manager With a copy to: Sheppard, Mullin, Richter & Hampton LLP 12275 El Camino Real, Suite 100 San Diego, CA 92130-4092 Attention: Tony Toranto CITY OF CARLSBAD Real Estate Manager 3096 Harding Street Carlsbad, CA 92008 With a copy to: City of Carlsbad City Attorney's Office 1200 Carlsbad Village Drive Carlsbad, CA 92008 Either Party may change its address for purposes of this Section 19.3 by giving written notice of such change to the other Party in the manner provided in this Section 19.3. 19.4 Force Majeure. As used herein, the term "Force Majeure Event" means acts of God or any other casualty or occurrence, condition, event or circumstance of any kind or nature not reasonably within the excused Party's control and which could not have been avoided by reasonable measures, including, but not limited to, strikes, slowdowns or labor difficulties, pandemic, epidemic or other health related emergency, fires, flood, earthquakes, explosions or SMRH:4857-5235-1752.26 -31- June 21, 2022 Item #10 0XSN-323207 Page 47 of 107 other hazards, acts of public enemies, riots, civil commotions, or insurrection. Force Majeure expressly does not include any delay in performing or failure of performance of any contractual provision by a Party (except to the extent caused by a Force Majeure event); late delivery or breakage of equipment or materials (except to the extent caused by a Force Majeure event); or economic hardship. Notwithstanding any other provision of this Agreement, each Party's obligations hereunder shall be suspended by any Force Majeure if and to the extent that such Party is prevented or delayed from performing by reason of the Force Majeure: provided, however, that (a) the prevention or delay of performance shall be of no greater scope and of no longer duration than is necessarily caused by the Force Majeure and required by any remedial measures, (b) no obligations of any Party that arose before the occurrence of such causes shall be excused as the result of the occurrence, and (c) each Party shall use reasonable commercial efforts to remedy its inability to perform; provided, further, that no Force Majeure shall excuse any payment obligations of either the Licensor or the Licensee due hereunder. If the performance by either Party of its obligations under this Agreement is affected by any Force Majeure, such Party shall as soon as practicable notify the other Party of the nature and extent thereof. 19.5 Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of that prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of that provision in any other jurisdiction. 19.6 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties and on their permitted successors and assigns. 19. 7 Headings. The descriptive headings of all Articles and Sections of this Agreement are formulated and used for convenience only and are not be deemed to affect the meaning or construction of any such Article or Section. 19.8 Business Days. The term "Business Day" or "Business Days" means a day or days (i) that are not Saturdays or Sundays and (ii) on which banks or businesses are not required or authorized by Law or executive order to close in San Diego County, California. 19.9 Governing Law; Construction. This Agreement shall be governed by and interpreted under the Laws of the State of California. The use of the neuter gender includes the masculine and feminine, and the singular number includes the plural, and vice versa, whenever the context so requires. The terms "include", "includes" and "including", as used herein, are without limitation. All provisions of this Agreement to be observed or performed by Licensee are both covenants and conditions. This Agreement shall be construed equally as between and against the Parties, and any rule of construction to the effect that ambiguities are to be resolved in favor of either Party shall not be employed in the interpretation of this Agreement. 19.10 Third Party Beneficiaries. The covenants contained herein are made solely for the benefit of the Parties, and shall not be construed as benefiting any person or entity that is not a Party to this Agreement. 19.11 Survival. Any covenants contained herein that are intended to be performed following the expiration or termination of this Agreement shall survive such expiration or SMRH:4857-5235-1752.26 -32- June 21, 2022 Item #10 0XSN-323207 Page 48 of 107 termination regardless whether survival is expressly required herein with respect to such covenants. 19.12 Amendments. This Agreement may not be changed, modified or discharged except by a writing signed by Licensor and Licensee. Any such change, modification or discharge made otherwise than as expressly permitted by this Section 19 .12 shall be void and of no force or effect. 19.13 Time of the Essence. Time shall be of the essence with respect to the performance of each of the Parties respective obligations hereunder. 19.14 Relationship. Neither this Agreement nor any agreements or transactions contemplated hereby shall in any respect be interpreted, deemed or construed as constituting Licensor and Licensee as partners or joint venturers, or as creating any partnership, joint venture, association or other relationship other than that of I icensor and I icensee· and both Parties agree not to make any contrary assertion, contention, claim or counterclaim in any action, suit or other proceeding involving either Party or the subject matter of this Agreement. 19.15 Entire Agreement. This Agreement, including any Exhibits attached thereto, contains the entire agreement between the Parties in connection with the license of the Premise , and all prior or contemporaneous proposals, agreements, understandings and representations dealing with such matters, whether oral or written, are merged herein and superseded hereby. 19.16 Counterparts. This Agreement may be executed in any number of counterparts each of which shall be an original, but all of which shall together constitute one and the same instrument. [SIGNATURES ON NEXT PAGE] MRH:4857-5235-1752.26 -33- June 21, 2022 Item #10 0XSN-323207 Page 49 of 107 IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the Effective Date. LICENSOR: LICENSEE: SMRH:4857-5235-1752.26 June 21, 2022 CABRILLO POWER I LLC, a Delaware limited liability company By:_...,,...~~----- Name: __ E_ri_c_Le_u_z_e _______ _ Title: Vice President -~..c..=..=--'-'..cc===.o-=------- Name: ()l\(\tA)IJ\ W--~~"--'----'--........ --_.,_ __ Title: U~ j S-1- MM'\"-1W Item #10 0XSN-323207 Page 50 of 107 EXIDBIT "A" LEGAL DESCRIPTION OF THE PROPERTY THE LAND REFERRED TO HEREIN BELOW IS SITU A TED IN THE CITY OF CARLSBAD, 1N THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: THAT PORTION OF LOT "H" OF RANCHO AGUA HEDIONDA, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STA TE OF CALIFORNIA, ACCORDING TO PARTITION MAP THEREOF NO. 823 , FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, NOVEMBER 16, 1896,, DEFINED AS PARCEL 4 IN THAT CERTIFICATE OF COMPLIANCE RECORDED OCTOBER 30, 2001 AS INSTRUMENT NO. 2001-0789068 OF OFFICIAL RECORDS, DESCRIBED AS FOLLOWS: COMMENCING AT THE INTERSECTION OF THE EASTERLY LINE OF THE 100.00 FOOT WIDE RIGHT-OF-WAY OF THE ATCHISON TOPEKA AND SANTA FE RAILROAD WITH THE NORTHERLY LINE OF CANNON ROAD (60.00 FEET WIDE); THENCE ALONG SAID EASTERLY LINE NORTH 22°30'13" WEST, 1564.78 FEET TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING ALONG SAID EASTERLY LINE NORTH 22°30' 13" WEST, 1990.35 FEET TO THE BEGINNING OF A NON-TANGENT CURVE CONCA VE TO THE NORTHWEST HA YING A RADIUS OF 1005.37 FEET, A RADIAL TO SAID BEGINNING BEARS SOUTH 85 °54'14" EAST; THENCE NORTHEASTERLY 36.76.FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 02°05'42"; THENCE NON- TANGENT TO SAID CURVE NORTH 22°30'13" WEST, 302.87 FEET; THENCE LEAVING SAID EASTERLY LINE NORTH 61 °25'37" EAST, 14.19 FEET; THENCE NORTH 30°30'37" EAST, 34.90 FEET; THENCE SOUTH 40°47'23" EAST, 63.50 FEET; THENCE SOUTH 69°10'23" EAST, 38.00 FEET; THENCE NORTH 79°19'37" EAST, 285.00 FEET; THENCE NORTH 88°07'37" EAST, 333.14 FEET; THENCE NORTH 81 °53'37" EAST, 13.68 FEET TO THE WESTERLY RIGHT-OF-WAY LINE OF CALIFORNIA STATE HIGHWAY XI-SD-2B (1-5); THENCE ALONG SAID RIGHT-OF-WAY LINE SOUTH 17°57'05" EAST, 204.93 FEET; THENCE SOUTH 12°34'1 l "EAST, 424.72 FEET; THENCE SOUTH 22°07'51" EAST, 239 .68 FEET; THENCE SOUTH 22°30'3 7" EAST, 1210.91 FEET; THENCE LEA YING SAID RIGHT-OF-WAY LINE SOUTH 67°37'25" WEST, 492.66 FEET; THENCE SOUTH 62°25'13" WEST, 126.26 FEET TO THE TRUE POINT OF BEGINNING. TOGETHER WITH THAT PORTION OF SAID LOTH DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHEASTERLY CORNER OF RECORD OF SURVEY NO. 14621 , IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, ST ATE OF CALIFORNIA, RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, AUGUST 14, 1994 AS FILE NO. 1994-500086, SAID CORNER BEING ON THE WESTERLY LINE OF THE RIGHT-OF-WAY OF THE ATCHISON TOPEKA AND SANTA FE RAILROAD; THENCE ALONG SAID WESTERLY LINE AND EASTERLY LINE OF SAID RECORD OF SURVEY NO. 14621 SOUTH 28°40'19" EAST, 656.70 FEET TO THE MOST SOUTHERLY CORNER OF SAID RECORD OF SURVEY NO. 14621 ; THENCE SMRH:4857-5235-1752.26 EXHIBIT "A" June 21, 2022 Item #10 0XSN-323207 Page 51 of 107 CONTINUING SOUTH 28°40'19" EAST, 275.00 FEET TO THE TRUE POINT OF BEGINNING; THENCE LEAVING SAID WESTERLY LINE SOUTH 56°25'3011 WEST, 61 .30 FEET; THENCE SOUTH 04°59'18" WEST, 27.61 FEET; THENCE SOUTH 39°37'42" EAST, 61.38 FEET; THENCE SOUTH 77°21'2211 EAST, 49.55 FEET; THENCE SOUTH 26°45'23" EAST, 232.92 FEET; THENCE SOUTH 17°52'19" EAST, 115.92 FEET; THENCE SOUTH 02°16'37" EAST, 55.06 FEET; THENCE SOUTH 24°00'58" WEST, 44.47 FEET; THENCE SOUTH 40°45'14" WEST, 126.60 FEET; THENCE SOUTH 29°41 '50" WEST, 83.42 FEET; THENCE SOUTH 27°27'35" WEST, 90.04 FEET; THENCE SOUTH 35 °18'30" WEST, 212.59 FEET; THENCE SOUTH 19°22'01" EAST, 108.34 FEET; THENCE SOUTH 30°56'56" EAST, 304.06 FEET; THENCE SOUTH 14°30'21" WEST, 175.27 FEET; THENCE SOUTH 00°09'5711 EAST, 123.11 FEET; THENCE SOUTH 26°53'3711 EAST, 119.99 FEET; THENCE SOUTH 34°46'51" WEST, 23.60 FEET; THENCE NORTH 61 °27'21" WEST, 142.77 FEET; THENCE NORTH 22°47'32 11 WEST, 47.01 FEET; THENCE SOUTH 67°12'28" WEST, 16.03 FEET; THENCE SOUTH 22°47'32" EAST, 22.23 FEET; THENCE SOUTH 58°37'31" WEST, 97.99 FEET; THENCE SOUTH 41 °35'2811 WEST, 110.44 FEET; THENCE NORTH 74°44'5211 WEST, 164.81 FEET; THENCE NORTH 05°57'51" WEST, 202.95 FEET; THENCE NORTH 30°14'20" WEST, 64.23 FEET; THENCE NORTH 64°31 '22" WEST, 293.59 FEET TO THE EASTERLY LINE OF THE 100.00 FOOT WIDE CARLSBAD BOULEY ARD; THENCE ALONG SAID EASTERLY LINE OF CARLSBAD BOULEVARD SOUTH 24°07'3611 EAST, 913 .18 FEET TO TRUE BEGINNING OF A CURVE CONCA VE SOUTHWESTERLY HA YING A RADIUS OF 4050.00 FEET; THENCE SOUTHEASTERLY 348.89 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 04°56'09"; THENCE SOUTH 19° 11 '27" EAST, 15.63 FEET TO THE BEGINNING OF A CURVE CONCA VE NORTHEASTERLY HAVING A RADIUS OF 5216.55 FEET; THENCE SOUTHEASTERLY 900.29 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 09°53'18"; THENCE LEAVING SAID EASTERLY LINE OF CARLSBAD BOULEVARD NORTH 60°43'4211 EAST, 103.71 FEET; THENCE NORTH 71 °53'50" EAST, 49.05 FEET; THENCE NORTH 88°29'4611 EAST, 149.63 FEET; THENCE NORTH 77°06'32" EAST, 80.00 FEET; THENCE NORTH 68°28'1511 EAST, 121.97 FEET; THENCE NORTH 63 °21'24" EAST, 220.51 FEET; THENCE NORTH 67 °56'35" EAST, 167.57 FEET; THENCE NORTH 76°27'03" EAST, 60.33 FEET; THENCE SOUTH 77°37'0611 EAST, 172.85 FEET; THENCE SOUTH 60°55'24" EAST, 66.30 FEET; THENCE SOUTH 45 °30'57" EAST, 47.42 FEET; THENCE SOUTH 82°40'44" EAST, 84.31 FEET; THENCE SOUTH 44°29'52" EAST, 52.55 FEET TO SAID WESTERLY RIGHT-OF-WAY LINE OF SAID ATCHISON TOPEKA AND SANTA FE RAILROAD; THENCE ALONG SAID WESTERLY LINE NORTH 22°30'13"WEST, 2664.53 FEET; THENCE NORTH 28°40'19" WEST, 835.14 FEET TO THE TRUE POINT OF BEGINNING. SMRH:4857-5235-1752.26 EXHIBlT "A" June 21, 2022 Item #10 0XSN-323207 Page 52 of 107 EXHIBIT "B-1" DEPICTION OF THE LICENSED PREMISES DEPICTION OF THE LICENSED PREMISES PROJECT NAME PROJECT EXHIBIT TEMPORARY FIRE STATION 7 SMRJ-l:4857-5235-1752.26 EXHIBIT "B" June 21, 2022 NUMBER 4091 Item #10 0XSN-323207 Page 53 of 107 EXHIBIT "B-2" DEPICTION OF THE RESCUE WATERCRAFT PREMISES Rescue Watercraft Premises include the existing service road, ramp and floating dock, and dredge dock as depicted in this Exhibit "B-2" which may be revised from time to time in accordance with Section 1.2.1. Existing service road available as-is for drive aisle and access to dock Pedestrian access to dredge dock will be provided if service road is unavailable during Poseidon construction Existing dredge dock and site of relocated ramp and floating dock SMRH:4857-5235-1752.26 June 21, 2022 EXHIBrT "B" Item #10 0XSN-323207 Page 54 of 107 EXIDBIT "C" ANCILLARY EQUIPMENT Ancillary equipment supporting 7 fire suppression personnel on 24 hours shifts and 5 lifeguard personnel during the day will be located on the Licensed Premises and will include but not be limited to one ambulance, one fire truck (the largest of which will be a ladder truck with the specifications described below), two lifeguard vehicles and rescue watercraft. Other ancillary equipment will include a 6 foot chain link trash enclosure, exercise equipment, fire department cal I box, a charging station and emergency generator. (attached) SMR.H:4857-5235-1752.26 EXHIBIT "C" June 21, 2022 Item #10 0XSN-323207 Page 55 of 107 &1"110UG111~,11.2fl•tJ' ""-'S-:71'11.aK .... ""-IUSP. ~OJ'T1'klOEJIIPADSl'f"T24") llll!!ClMllnAl!KllllPWTll.ffl !O(WJDlrllTULAJa.TANK"'1$.1!1$ CU'o'8Jl!rl''-"<llfrlrll2)1'MNTEDJOICQ. nlotlRWJ.aJITICM.Pll'IGIIM. ~CUlf,l)\tiQIIIJE.llllt.wGW1£E.CIIOCX$&U•!o1Q.DEAltl\llU. ~N«IIIW'PEIILOOSfll't'IM!N'PMAlUS~...:n.llltA. J--4'M),1! IWPWH) MSlff'lOOEl NCl"f.eAS[»ollh'ffll ,l(IIW.Ml(ll«<l f'LATI: ~::X~J:=un~ AmTN«ISJOtCCLOIIP/11,T[D'MI.U' _,..,."' •\littiD'..:tllEOLEO~lOftt-1 ·\IHUNIIIIOOMIIEIILf.DtCLINIIIOWl!DW.uaKTl!(II; •HMllfT""111>tLl01€M:L01Tlwl'GOlaLEDK.liO EXHIBIT"C" ANCILLARY EQUIPMENT S,IIWU,,ollla>(ltl.U'!JI o/117~ f'.iltAGAA'l!IO,DltGIS,Ll"l1.v.ST\1™fflll[f'T o.trlON'ALf.'MSoliZI NKl.t~fOII i71MEWl~~.pQf\\hllD.-OTln.o:x> ~Llll'IONUlll'LUS-"Ot111"lf09"(11/P\,Xl)I.Offl r,.OIUIM-'IO■FOJll'IOlllEHCfalCCfflWll,l.nott~omuw~v~•IJIO'>'M. ~ IIOOMIMl(-""'1110DMIINCla.&ae'l'100WG.MtlillOMJUINCl~Slrl.UOIIOCII CHNIGU'MJ.l'MVlr,&.,'MEll!IIICRlflA-.aEICIOI!. June 21, 2022 IPPROVll HAWING PEltl448 11f(HOIJili(J,l>/qNl$Ac.AI.CllATU>NGM.ACTUoll. Ul'/QfYW.\IV~OOIUllMl,ON >A:IOOllllc:#MNOlf. Item #10 l"YioOSE,t,QRA,Vf~~.fTSsuesmwaES,succtUORS~ "8SIGHS (COI.UCTTl,'RY, -rNOUAORA~OMIS l'ROPftll!'T/IAY RIOtfl'' 1H AHO TO THIS OAAWWG N.u M'ORMATION CONTM-IEO Tl1EfWN, nttS OfV,WWQISC0NAD!.NTW.N4011HOUU)N0TtlfUSEOOf't~ PMN«PUtJl'0:9l!:wmo.JfTH!~CONSl"HT°" l'IM>tll!:AOM.l~ Page 56 of 107 SMRH:4857-5235-1752.26 June 21, 2022 EXIDBIT "D" PRELIMINARY SITE PLAN (attached) EXHIBIT "D" Item #10 0XSN-323207 Page 57 of 107 I I i I i I ! ! I I I l i I I i l I I i I I i i ! I I I I i i I I I , CARI.S8AD BlVO June 21, 2022 Item #10 EXHIBIT "D" PRELIMINARY SITE PLAN F"ERGUSON PAPE BALDWIN ARCHITECTS 4..eiRufflnRoad .... ,.. 8'1nOll,goCAt2123 111112310751 __ ,pc.n::h.com w•~-~,.,.. ..• I ,._n-._, . Cityof Carlsbad Page 58 of 107 June 21, 2022 Item #10 EXHIBIT "D" PRELIMINARY SITE PLAN Page 59 of 107 FERGUSON PAPE BALDWIN ARCHITECTS ...WR.ulflnRGlla ..,.,,oo San a.go CA 9212.S 6Uil 231 0751 -.1.f'Cfl.oom EXIDBIT "E" CERTAIN LICENSEE PERMITS • California Coastal Commission Coastal Development Permit • City of Carlsbad Conditional Use Permit • City of Carlsbad Building Permit • San Diego County Air Pollution Control District (APCD) Permit for emergency generator • San Diego County Department of Environmental Health Permit for emergency generator fuel (Unified Program Facility Permit) • If any structural changes, maintenance, or improvements to the dock are required then these permits may be required: o 401 Water Quality Certification from the San Diego regional Water Quality Control Board, and possibly a o 404 Nationwide Permit #3-Maintenance from the Army Corps of Engineers. SMRH:4857-5235-1752.26 EXHIBIT "E" June 21, 2022 Item #10 0XSN-323207 Page 60 of 107 SMR!i:4857-5235-1752.26 June 21, 2022 EXHlBIT "F" UTCLITY SERVICES AND FACILITJES Existing water serv to remain. Existing upstream meter to remain. Ucensee to establish separate meter at the point of EXHIBIT "F" Existing transfomier ~ &metercabiner © 0XSN-323207 Item #10 Page 61 of 107 EXIDBIT "G" CITY OF CARLSBAD STANDARD PUBLIC WORKS AGREEMENT TEMPLATE (attached) SMRH:4857-5235-1752.26 EXHIBIT "G" June 21, 2022 Item #10 0XSN-323207 Page 62 of 107 CITY OF CARLSBAD MINOR PUBLIC WORKS CONTRACT NAME OF PROJECT; CONT. NO. NNNN ($60,000 or Less) Tracking#: This agreement is made on the ______ day of ___________ , 20_, by the City of Carlsbad, California, a municipal corporation, (hereinafter called "City"), and whose principal place of business is (hereinafter called "Contractor"). City and Contractor agree as follows: DESCRIPTION OF WORK. Contractor shall perform all work specified in the Contract documents for the project described by these Contract Documents (hereinafter called "Project"). PROVISIONS OF LABOR AND MATERIALS. Contractor shall provide all labor, materials, tools, equipment, and personnel to perform the work specified by the Contract Documents unless excepted elsewhere in this Contract. CONTRACT DOCUMENTS. The Contract Documents consist of this Contract, exhibits to this Contract, Contractor's Proposal, the Plans and Specifications, the General Provisions, addendum(s) to said Plans and Specifications, and all proper amendments and changes made thereto in accordance with this Contract or the Plans and Specifications, all of which are incorporated herein by this reference. When in conflict, this Contract will supersede terms and conditions in the Contractor's proposal. LABOR. Contractor will employ only skilled workers and abide by all State laws and City of Carlsbad Ordinances governing labor. GUARANTEE. Contractor guarantees all labor and materials furnished and agrees to complete the Project in accordance with directions and subject to inspection approval and acceptance by: (City Project Manager) PAYMENT. The City shall withhold retention as required by Public Contract Code Section 9203. WAGE RA TES. The general prevailing rate of wages for each craft or type of worker needed to execute the Contract shall be those as determined by the Director of Industrial Relations pursuant to Sections 1770, 1773 and 1773.1 of the Labor Code. Pursuant to Section 1773.2 of the Labor Code, a current copy of the applicable wage rates is on file in the Office of the City Engineer. Contractor shall not pay less than the said specified prevailing rates of wages to all workers employed by him or her in execution of the Contract. Contractor shall be responsible for insuring compliance with provisions of section 1777.5 of the Labor Code and section 4100 et seq. of the Public Contracts Code, "Subletting and Subcontracting Fair Practices Act." The City Engineer is the City's "duly authorized officer" for the purposes of section 4107 and 4107.5. The provisions of Part 7, Chapter 1, of the Labor Code commencing with section 1720 shall apply to the Contract for work. A contractor or subcontractor shall not be qualified to bid on, be listed in a bid proposal, subject to the requirements of Section 4104 of the Public Contract Code, or engage in the performance of any contract for public work, unless currently registered and qualified to perform public work pursuant to Section 1725.5. This project is subject to compliance monitoring and enforcement by the Department of Industrial Relations. NAME OF PROJECT; CONT. NO. NNNN June 21, 2022 Page 1 of 8 City Attorney Approved 1/22/2020 Item #10 Page 63 of 107 Tracking#: Contractor and any subcontractors shall comply with Section 1776 of the California Labor Code, which generally requires keeping accurate payroll records, verifying and certifying payroll records, and making them available for inspection. Contractor shall require any subcontractors to comply with Section 1776. FALSE CLAIMS. Contractor hereby agrees that any contract claim submitted to the City must be asserted as part of the contract process as set forth in this agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that California Government Code sections 12650 et seq., the False Claims Act, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of the information. The provisions of Carlsbad Municipal Code sections 3.32.025, 3.32.026, 3.32.027 and 3.32.028 pertaining to false claims are incorporated herein by reference. Contractor hereby acknowledges that the filing of a false claim may subject the Contractor to an administrative debarment proceeding wherein the contractor may be prevented from further bidding on public contracts for a period of up to five years and that debarment by another jurisdiction is grounds for the City of Carlsbad to disqualify the Contractor or subcontractor from participating in contract bidding. Signature: Print Name: REQUIRED INSURANCE. The successful contractor shall provide to the City of Carlsbad, a Certification of Commercial General Liability and Property Damage Insurance and a Certificate of Workers' Compensation Insurance indicating coverage in a form approved by the California Insurance Commission. The certificates shall indicate coverage during the period of the contract and must be furnished to the City prior to the start of work. The minimum limits of liability insurance are to be placed with California admitted insurers that have a current Best's Key Rating of not less than "A-:VII"; OR with a surplus line insurer on the State of California's List of Approved Surplus Line Insurers (LASLI) with a rating in the latest Best's Key Rating Guide of at least "A:X"; OR an alien non-admitted insurer listed by the National Association of Insurance Commissioners (NAIC) latest quarterly listings report. Commercial General Liability Insurance of Injuries including accidental death, to any one person in an amount not less than ........ $1 ,000,000 Subject to the same limit for each person on account of one accident in an amount not less than ....... $1 ,000,000 Property damage insurance in an amount of not less than ........ $1 ,000,000 Automobile Liability Insurance in the amount of $1 ,000,000 combined single limit per accident for bodily injury and property damage. In addition , the auto policy must cover any vehicle used in the performance of the contract, used onsite or offsite, whether owned, non-owned or hired, and whether scheduled or non- schedu)ed. The automobile insurance certificate must state the coverage is for "any auto" and cannot be limited in any manner. The above policies shall have non-cancellation clauses providing that thirty (30) days written notice shall be given to the City prior to such cancellation. The policies shall name the City of Carlsbad as an additional insured. The full limits available to the named insured shall also be available and applicable to the City as an additional insured. WORKERS' COMPENSATION AND EMPLOYER'S LIABILITY. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. NAME OF PROJECT; CONT. NO. NNNN June 21, 2022 Page 2 of 8 City Attorney Approved 1/22/2020 Item #10 Page 64 of 107 Tracking#: INDEMNITY. The Contractor shall assume the defense of, pay all expenses of defense, and indemnify and hold harmless the City, and its officers and employees, from all claims, loss, damage, injury and liability of every kind, nature and description, directly or indirectly arising from or in connection with the performance of the Contract or work; or from any failure or alleged failure of Contractor to comply with any applicable law, rules or regulations including those related to safety and health; and from any and all claims, loss, damages, injury and liability, howsoever the same may be caused, resulting directly or indirectly from the nature of the work covered by the Contract, except for loss or damage caused by the sole or active negligence or willful misconduct of the City. The expenses of defense include all costs and expenses including attorneys' fees for litigation, arbitration, or other dispute resolution method. JURISDICTION. The Contractor agrees and hereby stipulates that the proper venue and jurisdiction for resolution of any disputes between the parties arising out of this agreement is San Diego County, California. Start Work: Contractor agrees to start within __ working days after receipt of Notice to Proceed. Completion: Contractor agrees to complete work within __ working days after receipt of Notice to Proceed. CONTRACTOR'S INFORMATION. (name of Contractor) (street address) (Contractor's license number) (city/state/zip) (license class. and exp. date) (telephone no.) (DIR registration number) (fax no.) (DIR registration exp. date) (e-mail address) AUTHORITY. The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. CONTRACTOR By: (sign here) (print name/title) By: (sign here) (print name/title) NAME OF PROJECT; CONT. NO. NNNN June 21, 2022 Page 3 of 8 CITY OF CARLSBAD, a municipal corporation of the State of California By: Assistant City Manager, Deputy City Manager, or Department Director as Authorized by the City Manager ATTEST: FAVIOLA MEDINA City Clerk Services Manager City Attorney Approved 1/22/2020 Item #10 Page 65 of 107 Tracking#: If required by City, proper notarial acknowledgment of execution by Contractor must be attached. !i..2 corporation, Agreement must be signed by one corporate officer from each of the following two groups: Group A Chairman, President, or Vice-President Group B Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: CELIA A. BREWER, City Attorney BY : __________ _ Deputy/Assistant City Attorney NAME OF PROJECT; CONT. NO. NNNN June 21, 2022 Page 4 of 8 City Attorney Approved 1/22/2020 Item #10 Page 66 of 107 Tracking#: EXHIBIT A LISTING OF SUBCONTRACTORS BY GENERAL CONTRACTOR Set forth below is the full name and location of the place of business of each sub -contractor whom the Contractor proposes to subcontract portions of the Project in excess of one-half of one percent of the total bid, and the portion of the Project which will be done by each sub-contractor for each subcontract. NOTE: The Contractor understands that if it fails to specify a sub-contractor for any portion of the Project to be performed under the contract in excess of one-half of one percent of the bid , the contractor shall be deemed to have agreed to perform such portion, and that the Contractor shall not be permitted to sublet or subcontract that portion of the work, except in cases of public emergency or necessity, and then only after a finding, reduced in writing as a public record of the Awarding Authority, setting forth the facts constituting the emergency or necessity in accordance with the provisions of the Subletting and Subcontracting Fair Practices Act (Section 4100 et seq. of the California Public Contract Code). If no subcontractors are to be employed on the project, enter the word "NONE." SUBCONTRACTORS Portion of Project to Business Name and Address be Subcontracted Total% Subcontracted: ______ _ NAME OF PROJECT; CONT. NO. NNNN June 21, 2022 Page 5 of 8 DIR Registration No. License No., % of Classification & Total Expiration Date Contract City Attorney Approved 1/22/2020 Item #10 Page 67 of 107 Tracking#: EXHIBIT B {ENTER SCOPE OF WORK, SPECIFICATIONS, CONTRACTOR'S PROPOSAL, ETC.) JOB QUOTATION ITEM UNIT QTY DESCRIPTION NO. *Includes taxes, fee's, expenses and all other costs. NAME OF PROJECT; CONT. NO. NNNN June 21, 2022 Page 6 of 8 PRICE TOTAL* City Attorney Approved 1/22/2020 Item #10 Page 68 of 107 Tracking#: ELETE THIS EXHIBIT CT LABOR AND MATERIALS BOND WHEREAS, the City Council of the City of Carlsbad, State of California, has awarded to (hereinafter designated as the "Principal"), a Contract for: CIFICATIONS in the City of Carlsbad, in strict conformity with the drawings and specifications, and other Contract Documents now on file in the Office of the City Clerk of the City of Carlsbad and all of which are incorporated herein by this reference. WHEREAS, Principal has executed or is about to execute said Contract and the terms thereof require the furnishing of a bond, providing that if Principal or any of its subcontractors shall fail to pay for any materials, provisions, provender or other supplies or teams used in, upon 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, ______________________ , as Principal, (hereinafter designated as the "Contractor"), and ____________ _ _______________ as Surety, are held firmly bound unto the City of Carlsbad in the sum of ______________________________ _ _________________________ Dollars ($ ______ _,, said sum being an amount equal to: One hundred percent (100%) of the total amount payable under the terms of the Contract by the City of Carlsbad, and 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 presents. THE CONDITION OF THIS OBLIGATION IS SUCH that if the Contractor or his/her subcontractors fail to pay for any materials, provisions, provender, supplies, or teams 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, consistent with California Civil Code section 9100, or for amounts due under the Unemployment Insurance Code with respect to the work or labor performed under this Contract, or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of the contractor and subcontractors pursuant to section 13020 of the Unemployment Insurance Code with respect to the work and labor, that the Surety will pay for the same, and, also, in case suit is brought upon the bond, reasonable attorney's fees, to be fixed by the court consistent with California Civil Code section 9554. This bond shall inure to the benefit of any of the persons named in California Civil Code section 9100, so as to give a right of action to those persons or their assigns in any suit brought upon the bond. Surety stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract, or to the work to be performed hereunder or the specifications accompanying the same shall affect its obligations on this bond, and it does hereby waive notice of any change, extension of time, alterations or addition to the terms of the contract or to the work or to the specifications. NAME OF PROJECT; CONT. NO. NNNN June 21, 2022 Page 7 of 8 City Attorney Approved 1/22/2020 Item #10 Page 69 of 107 Tracking#: In the event that Contractor is-an individual, it is agreed that the death of any such Contractor shall not exonerate the Surety from its obligations under this bond. Executed by CONTRACTOR this ______ day of ---------~ 20 __ . CONTRACTOR : (name of Contractor) By: _______________ _ (sign here) (print name here) (title and organization of signatory) By: _______________ _ (sign here) (print name here) (title and organization of signatory) Executed by SURETY this ______ day of __________ ____, 20 __ . SURETY: (name of Surety) (address of Surety) (telephone number of Surety) By: ________________ _ (signature of Attorney-in-Fact) (printed name of Attorney-in-Fact) (attach corporate resolution showing current power of attorney) (Proper notarial acknowledgment of execution by CONTRACTOR and SURETY must be attached.) (President or vice-president and secretary or assistant secretary must sign for corporations. If only one officer signs, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering that officer to bind the corporation.) APPROVED AS TO FORM : CELIA A. BREWER City Attorney By: Assistant City Attorney NAME OF PROJECT; CONT. NO. NNNN June 21, 2022 Page 8 of 8 City Attorney Approved 1/22/2020 Item #10 Page 70 of 107 CONTRACT PUBLIC WORKS ( over $60,000) This agreement is made this ______ day of _______________ , 20_, by and between the City of Carlsbad, California, a municipal corporation, (hereinafter called "City"), and ______________________ whose principal place of business is (hereinafter called "Contractor"). City and Contractor agree as follows: 1. Description of Work. Contractor shall perform all work specified in the Contract documents for: «PROJNAME» CONTRACT NO. «PROJNUM» (hereinafter called "project") 2. Provisions of Labor and Materials. Contractor shall provide all labor, materials, tools, equipment, and personnel to perform the work specified by the Contract Documents. 3. Contract Documents. The Contract Documents consist of this Contract, Notice Inviting Bids, Contractor's Proposal, Bidder's Bond, Noncollusion Declaration, Designation of Subcontractors, Technical Ability and Experience, Bidder's Statement Re Debarment, Escrow Agreement, Release Form, the Plans and Specifications, the General Provisions, addendum(s) to said Plans and Specifications and General Provisions, and all proper amendments and changes made thereto in accordance with this Contract or the Plans and Specifications, and all bonds for the project; all of which are incorporated herein by this reference. Contractor, her/his subcontractors, and materials suppliers shall provide and install the work as indicated, specified, and implied by the Contract Documents. Any items of work not indicated or specified, but which are essential to the completion of the work, shall be provided at the Contractor's expense to fulfill the intent of said documents. In all instances through the life of the Contract, the City will be the interpreter of the intent of the Contract Documents, and the City's decision relative to said intent will be final and binding. Failure of the Contractor to apprise subcontractors and materials suppliers of this condition of the Contract will not relieve responsibility of compliance. 4. Payment. For all compensation for Contractor's performance of work under this Contract, City shall make payment to the Contractor per section 9-3 PAYMENT of the General Provisions section of this contract. The Engineer will close the estimate of work completed for progress payments on the last working day of each month. The City shall withhold retention as required by Public Contract Code Section 9203. Contract No. «PROJNUM» Item #10 P~!7H:fffffifages 5. Independent Investigation. Contractor has made an independent investigation of the jobsite, the soil conditions at the jobsite, and all other conditions that might affect the progress of the work, and is aware of those conditions. The Contract price includes payment for all work that may be done by Contractor, whether anticipated or not, in order to overcome underground conditions. Any information that may have been furnished to Contractor by City about underground conditions or other job conditions is for Contractor's convenience only, and City does not warrant that the conditions are as thus indicated. Contractor is satisfied with all job conditions, including underground conditions and has not relied on information furnished by City. 6. Hazardous Waste or Other Unusual Conditions. If the contract involves digging trenches or other excavations that extend deeper than four feet below the surface Contractor shall promptly, and before the following conditions are disturbed, notify City, in writing, of any: A. Hazardous Waste. Material that Contractor believes may be material that is hazardous waste, as defined in section 25117 of the Health and Safety Code, that is required to be removed to a Class I, Class II , or Class Ill disposal site in accordance with provisions of existing law. B. Differing Conditions. Subsurface or latent physical conditions at the site differing from those indicated. C. Unknown Physical Conditions. Unknown physical conditions at the site of any unusual nature, different materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in the contract. City shall promptly investigate the conditions, and if it finds that the conditions do materially so differ, or do involve hazardous waste, and cause a decrease or increase in contractor's costs of, or the time required for, performance of any part of the work shall issue a change order under the procedures described in this contract. In the event that a dispute arises between City and Contractor whether the conditions materially differ, or involve hazardous waste, or cause a decrease or increase in the contractor's cost of, or time required for, performance of any part of the work, contractor shall not be excused from any scheduled completion date provided for by the contract, but shall proceed with all work to be performed under the contract. Contractor shall retain any and all rights provided either by contract or by law which pertain to the resolution of disputes and protests between the contracting parties. 7. Immigration Reform and Control Act. Contractor certifies it is aware of the requirements of the Immigration Reform and Control Act of 1986 (8 USC sections 1101-1525) and has complied and will comply with these requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors, and consultants that are included in this Contract. 8. Prevailing Wage. Pursuant to the California Labor Code, the director of the Department of Industrial Relations has determined the general prevailing rate of per diem wages in accordance with California Labor Code, section 1773 and a copy of a schedule of said general prevailing wage rates is on file in the office of the City Engineer, and is incorporated by reference herein. Pursuant to California Labor Code, section 1775, Contractor shall pay prevailing wages. Contractor shall post copies of all applicable prevailing wages on the job site. Contractor shall comply with California Labor Code, section 1776, which generally requires keeping accurate payroll records , verifying and certifying payroll records, and making them available for inspection. Contractor shall require all subcontractors to comply with Section 1776. Contract No. «PROJNUM» Item #10 9. Indemnification. Contractor shall assume the defense of, pay all expenses of defense, and indemnify and hold harmless the City, and its officers and employees, from all claims, loss, damage, injury and liability of every kind , nature and description , directly or indirectly arising from or in connection with the performance of the Contract or work; or from any failure or alleged failure of Contractor to comply with any applicable law, rules or regulations including those relating to safety and health; and from any and all claims, loss, damages, injury and liability, howsoever the same may be caused, resulting directly or indirectly from the nature of the work covered by the Contract, except for loss or damage caused by the sole or active negligence or willful misconduct of the City. The expenses of defense include all costs and expenses including attorneys' fees for litigation, arbitration, or other dispute resolution method. Contractor shall also defend and indemnify the City against any challenges to the award of the contract to Contractor, and Contractor will pay all costs, including defense costs for the City. Defense costs include the cost of separate counsel for City, if City requests separate counsel. Contractor shall also defend and indemnify the City against any challenges to the award of the contract to Contractor, arising in whole or in part from alleged inaccuracies or misrepresentation by the Contractor, whether intentional or otherwise, and Contractor will pay all costs, including defense costs for the City. Defense costs include the cost of separate counsel for City, if City requests separate counsel. 10. Insurance. Contractor shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the Contractor, his or her agents, representatives, employees or subcontractors. Said insurance shall meet the City's policy for insurance as stated in City Council Policy# 70. (A) Coverages and Limits Contractor shall maintain the types of coverages and minimum limits indicted herein: a. Commercial General Liability (CGL) Insurance: Insurance written on an "occurrence" basis, including products-completed operations, personal & advertising injury, with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this projecUlocation or the general aggregate limit shall be twice the required occurrence limit. b. Business Automobile Liability Insurance: $2,000,000 combined single limit per accident for bodily injury and property damage. In addition, the auto policy must cover any vehicle used in the performance of the contract, used onsite or offsite, whether owned, non-owned or hired , and whether scheduled or non-scheduled. c. Workers' Compensation and Employers' Liability Insurance: Workers' compensation limits as required by the Labor Code of the State of California and Employers' Liability limits of $1 ,000,000 per incident. Workers' compensation offered by the State Compensation Insurance Fund is acceptable to the City. (B) Additional Provisions: Contractor shall ensure that the policies of insurance required under th is agreement with the exception of Workers' Compensation and Business Automobile Liability Insurance contain, or are endorsed to contain, the following provisions. a. The City, its officials, employees and volunteers are to be covered as additional insured as respects: liability arising out of activities performed by or on behalf of the Contractor; products and completed operations of the contractor; premises owned, leased, hired or borrowed by the contractor. The coverage shall contain no special limitations on the scope of protection afforded to the City, its ,, J~ife ~f~~m2t12/18 Contract No. «PROJNUM » Item #10 pcf'~17~qjfff,6fages officials, employees or volunteers. All additional insured endorsements must be evidenced using separate documents attached to the certificate of insurance; one for each company affording general liability, and employers' liability coverage. b. The Contractor's insurance coverage shall be primary insurance as respects the City, its officials, employees and volunteers. Any insurance or self-insurance maintained by the City, its officials, employees or volunteers shall be in excess of the contractor's insurance and shall not contribute with it. c. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its officials, employees or volunteers. d. Coverage shall state that the contractor's insurance shall apply separately to each ·insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. (C) Notice of Cancellation. Each insurance policy required by this agreement shall be endorsed to state that coverage shall not be nonrenewed, suspended, voided, canceled, or reduced in coverage or limits except after ten (10) days' prior written notice has been sent to the City by certified mail, return receipt requested. (D) Deductibles and Self-Insured Retention (5.1.R.) Levels. Any deductibles or self-insured retention levels must be declared to and approved by the City. At the option of the City, either: the insurer shall reduce or eliminate such deductibles or self-insured retention levels as respects the City, its officials and employees; or the contractor shall procure a bond guaranteeing payment of losses and related investigation, claim administration and defense expenses. (E) Waiver of Subrogation. All policies of insurance required under this agreement shall contain a waiver of all rights of subrogation the insurer may have or may acquire against the City or any of its officials or employees. (F) Subcontractors. Contractor shall include all subcontractors as insured under its policies or shall furnish separate certificates and endorsements for each subcontractor. Coverages for subcontractors shall be subject to all of the requirements stated herein. (G) Acceptability of Insurers. Insurance is to be placed with insurers that have a rating in Best's Key Rating Guide of at least A-:VII. Insurers must also be authorized to transact the business of insurance by the State of California Insurance Commissioner as admitted carriers as evidenced by a listing in the official publication of the Department of Insurance of the State of California and/or under the standards specified by City Council Policy# 70. (H) Verification of Coverage. Contractor shall furnish the City with certificates of insurance and original endorsements affecting coverage required by this clause. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The certificates and endorsements are to be in forms approved by the City and are to be received and approved by the City before the Contract is executed by the City. (I) Cost of Insurance. The Cost of all insurance required under this agreement shall be included in the Contractor's bid. 11. Claims and Lawsuits. All cla ims by Contractor shall be resolved in accordance with Public Contract Code section 9204, which is incorporated by reference. A copy of Section 9204 is included in Section 3 of the General Provisions. In addition, all claims by Contractor for $375,000 or less shall be resolved in accordance with the provisions in the Public Contract Code, Division 2, Part 3, Chapter 1, Article 1.5 (commencing with section 20104) which are incorporated by reference. A copy of Article l' J~rfe' ff~\!912/12/18 Contract No. «PROJNUM» Item #10 Pa°gijlt?4qjffffifages 1.5 is included in Section 3 of the General Provisions. In the event of a conflict between Section 9204 and Article 1.5, Section 9204 shall apply. Notwithstanding the provisions of this section of the contract, all claims shall comply with the Government Tort Claim Act (section 900 et seq., of the California Government Code) for any claim or cause of action for money or damages prior to filing any lawsuit for breach of this agreement. (A) Assertion of Claims. Contractor hereby agrees that any contract claim submitted to the City must be asserted as part of the contract process as set forth in this agreement and not in anticipation of litigation or in conjunction with litigation. (B) False Claims. Contractor acknowledges that if a false claim is submitted to the City, it may be considered fraud and the Contractor may be subject to criminal prosecution. (C) Government Code. Contractor acknowledges that California Government Code sections 12650 et seq., the False Claims Act, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of the information. (D) Penalty Recovery. If the City of Carlsbad seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. (E) Debarment for False Claims. Contractor hereby acknowledges that the filing of a false claim may subject the Contractor to an administrative debarment proceeding wherein the Contractor may be prevented from further bidding on public contracts for a period of up to five years. (F) Carlsbad Municipal Code. The provisions of Carlsbad Municipal Code sections 3.32.025, 3.32 .026, 3.32.027 and 3.32.028 pertaining to false claims are incorporated herein by reference. (G) Debarment from Other Jurisdictions. Contractor hereby acknowledges that debarment by another jurisdiction is grounds for the City of Carlsbad to disqualify the Contractor or subcontractor from participating in future contract bidding. (H) Jurisdiction. Contractor agrees and hereby stipulates that the proper venue and jurisdiction for resolution of any disputes between the parties arising out of this agreement is San Diego County, California. I have read and understand all provisions of Section 11 above. ____ init init ---- 12. Maintenance of Records. Contractor shall maintain and make available at no cost to the City, upon request, records in accordance with sections 1776 and 1812 of Part 7, Chapter 1, Article 2, of the Labor Code. If the Contractor does not maintain the records at Contractor's principal place of business as specified above, Contractor shall so inform the City by certified letter accompanying the return of this Contract. Contractor shall notify the City by certified mail of any change of address of such records. 13. Labor Code Provisions. The provisions of Part 7, Chapter 1, commencing with section 1720 of the Labor Code are incorporated herein by reference. 14. Security. Securities in the form of cash, cashier's check, or certified check may be substituted for any monies withheld by the City to secure performance of this contract for any obligation established by this contract. Any other security that is mutually agreed to by the Contractor and the City may be substituted for monies withheld to ensure performance under this Contract. Contract No. «PROJNUM» Item #10 15. Unfair Business Practices. In entering into a public works contract or a subcontract to supply goods, services, or materials pursuant to a public works contract, the contractor or subcontractor offers and agrees to assign to the awarding body all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. Sec. 15) or under the Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, services, or materials pursuant to the public works contract or the subcontract. This assignment shall be made and become effective at the time the awarding body tenders final payment to the contractor, without further acknowledgment by the parties. 16. Provisions Required by Law Deemed Inserted. Each and every provision of law and clause required by law to be inserted in this Contract shall be deemed to be inserted herein and included herein , and if, through mistake or otherwise, any such provision is not inserted , or is not correctly inserted, then upon application of either party, the Contract shall forthwith be physically amended to make such insertion or correction. 17. Additional Provisions. Any additional provisions of this agreement are set forth in the "General Provisions" or "Supplemental Provisions" attached hereto and made a part hereof. NOTARIAL ACKNOWLEDGMENT OF EXECUTION BY ALL SIGNATORIES MUST BE ATTACHED (CORPORA TE SEAL) CONTRACTOR: (name of Contractor) By: ____________ _ (sign here) (print name and title) By:------------- (sign here) (print name and title) CITY OF CARLSBAD a municipal corporation of the State of California By : _____________ _ Mayor ATTEST: for Faviola Medina, City Clerk Services Manager President or vice-president and secretary or assistant secretary must sign for corporations. If only one officer signs, the corporation must attach a resolution certified by the secretary or assistant secretary under the corporate seal empowering that officer to bind the corporation. APPROVED AS TO FORM: CELIA A. BREWER City Attorney By_: ______________ _ Deputy City Attorney Contract No. «PROJNUM» Item #10 LABOR AND MATERIALS BOND WHEREAS , the City Council of the City of Carlsbad, State of California, has awarded to (hereinafter designated as the "Principal"), a Contract for: «PROJNAME» CONTRACT NO. «PROJNUM» in the City of Carlsbad, in strict conformity with the drawings and specifications, and other Contract Documents now on file in the Office of the City Clerk of the City of Carlsbad and all of which are incorporated herein by this reference. WHEREAS, Principal has executed or is about to execute said Contract and the terms thereof require the furnishing of a bond, providing that if Principal or any of their subcontractors shall fail to pay for any materials, provisions, provender or other supplies or teams used in, upon 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 , , as Principal, (hereinafter designate d as the "Contractor"), and _____________ _ ________________ as Surety, are held firmly bound unto the City of Carlsbad in the sum of Dollars ($ ______ _,, said sum being an amount equal to: One hundred percent (100%) of the total amount payable under the terms of the contract by the City of Carlsbad, and 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 presents. THE CONDITION OF THIS OBLIGATION IS SUCH that if the Contractor or his/her subcontractors fail to pay for any materials, provisions, provender, supplies, or teams 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, consistent with California Civil Code section 9100, or for amounts due under the Unemployment Insurance Code with respect to the work or labor performed under this Contract, or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of the contractor and subcontractors pursuant to section 13020 of the Unemployment Insurance Code with respect to the work and labor, that the Surety will pay for the same, and, also, in case suit is brought upon the bond, reasonable attorney's fees, to be fixed by the court consistent with California Civil Code section 9554. This bond shall inure to the benefit of any of the persons named in California Civil Code section 9100, so as to give a right of action to those persons or their assigns in any suit brought upon the bond. ,, •+' Revised 6/12/18 June 21, 2022 Contract No. «PROJNUM» Page 29 of 35 Pages Item #10 Page 77 of 107 Surety stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract, or to the work to be performed hereunder or the specifications accompanying the same shall affect its obligations on this bond, and it does hereby waive notice of any change, extension of time, alterations or addition to the terms of the contract or to the work or to the specifications. In the event that Contractor is an individual, it is agreed that the death of any such Contractor shall not exonerate the Surety from its obligations under this bond. SIGNED AND SEALED, this ______ day of ___________ , 2021 ___________ (SEAL) __________ (SEAL) (Principal) (Surety) By:-------------By:---------------(Signature) (Signature) (Print Name & Title) (Print Name & Title) (SEAL AND NOTARIAL ACKNOWLEDGEMENT OF SURETY -ATTACH ATTORNEY-IN-FACT CERTIFICATE) APPROVED AS TO FORM: CELIA A. BREWER City Attorney By: Assistant City Attorney l'\ •f' Revised 6/12/18 June 21, 2022 Contract No. «PROJNUM» Page 30 of 35 Pages Item #10 Page 78 of 107 FAITHFUL PERFORMANCE/WARRANTY BOND WHEREAS, the City Council of the City of Carlsbad, State of California, has awarded to (hereinafter designated as the "Principal"), a Contract for: «PROJNAME» CONTRACT NO. «PROJNUM» in the City of Carlsbad, in strict conformity with the contract, the drawings and specifications, and other Contract Documents now on file in the Office of the City Clerk of the City of Carlsbad , all of which are incorporated herein by this reference. WHEREAS, Principal has executed or is about to execute said Contract and the terms thereof require the furnishing of a bond for the faithful performance and warranty of said Contract; NOW, THEREFORE, WE, _____________________ , as Principal, (hereinafter designated as the "Contractor"), and _____________ , as Surety, are held and firmly bound unto the City of Carlsbad, in the sum of Dollars ($ ______ ~, said sum being equal to one hundred percent (100%) of the estimated amount of the Contract, to be paid to City or its certain attorney, 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 presents. THE CONDITION OF THIS OBLIGATION IS SUCH that if the above bounden Contractor, their heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions, and agreements in the Contract and any alteration thereof made as therein provided on their part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their true intent and meaning, and shall indemnify and save harmless the City of Carlsbad, its officers, employees and agents, as therein stipulated , then this obligation shall become null and void ; otherwise it shall remain in full force and effect. As a part of the obligation secured hereby and in addition to the face amount specified therefore, there shall be included costs and reasonable expenses and fees, including reasonable attorney's fees, incurred by the City in successfully enforcing such obligation, all to be taxed as costs and included in any judgment rendered . Surety stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract, or to the work to be performed there under or the specifications accompanying the same shall affect its obligations on this bond, and it does hereby waive notice of any change, ,, •+' Revised 6/12/18 June 21, 2022 Contract No. «PROJNUM» Page 31 of 35 Pages Item #10 Page 79 of 107 extension of time, alterations or addition to the terms of the contract or to the work or to the specifications. In the event that Contractor is an individual, it is agreed that the death of any such Contractor shall not exonerate the Surety from its obligations under this bond . SIGNED AND SEALED, th is ______ day of ___________ , 2021 ___________ (SEAL) __________ (SEAL) (Principal) (Surety) By:---------------By:------------ (Signature) (Signature) (Print Name & Title) (Print Name & Title) (SEAL AND NOTARIAL ACKNOWLEDGEMENT OF SURETY -ATTACH ATTORNEY-IN-FACT CERTIFICATE) APPROVED AS TO FORM: CELIA A. BREWER City Attorney By: Assistant City Attorney l' •+;' Revised 6/12/18 June 21, 2022 Contract No. «PROJNUM» Page 32 of 35 Pages Item #10 Page 80 of 107 OPTIONAL ESCROW AGREEMENT FOR SECURITY DEPOSITS IN LIEU OF RETENTION This Escrow Agreement is made and entered into by and between the City of Carlsbad whose address is 1200 Carlsbad Village Drive, Carlsbad, California, 92008, hereinafter called "City" and _____________________________ whose address is hereinafter called ------------------------------ 11 Contractor" and whose address is ----------------------- ________________________________ hereinafter called "Escrow Agent." For the consideration hereinafter set forth , the City, Contractor and Escrow Agent agree as follows: 1. Pursuant to section 22300 of the Public Contract Code of the State of California, the Contractor has the option to deposit securities with the Escrow Agent as a substitute for retention earnings required to be withheld by the City pursuant to the Construction Contract entered into between the City and Contractor for «PROJNAME» CONTRACT NO. «PROJNUM» in the amount of ____________ dated ______ (hereinafter referred to as the "Contract"). Alternatively, on written request of the Contractor, the City shall make payments of the retention earnings directly to the Escrow Agent. When the Contractor deposits the securities as a substitute for Contract earnings, the Escrow Agent shall notify the City within 1 O days of the deposit. The market value of the securities at the time of the substitution shall be a least equal to the cash amount then required to be withheld as retention under the terms of the contract between the City and Contractor. Securities shall be held in the name of the City and shall designate the Contractor as the beneficial owner. 2. The City shall make progress payments to the Contractor for such funds which otherwise would be withheld from progress payments pursuant to the Contract provisions, provided that the Escrow Agent holds securities in the form and amount specified above. 3. When the City makes payment of retentions earned directly to the Escrow Agent, the Escrow Agent shall hold them for the benefit of the Contractor until such time as the escrow created under this contract is terminated. The Contractor may direct the investment of the payments into securities. All terms and conditions of this agreement and the rights and responsibilities of the parties shall be equally applicable and binding when the City pays the Escrow Agent directly. 4. The Contractor shall be responsible for paying all fees for the expenses incurred by the Escrow Agent in administering the Escrow Account and all expenses of the City. These expenses and payment terms shall be determined by the City, Contractor and Escrow Agent. 5. The interest earned on the securities or the money market accounts held in escrow and all interest earned on that interest shall be for the sole account of Contractor and shall be subject to withdrawal by Contractor at any time and from time to time without notice to the City. Contract No. «PROJNUM» Item #10 6. Contractor shall have the right to withdraw all or any part of the principal in the Escrow Account only by written notice to Escrow Agent accompanied by written authorization from City to the Escrow Agent that City consents to the withdrawal of the amount sought to be withdrawn by Contractor. 7. The City shall have a right to draw upon the securities in the event of default by the Contractor. Upon seven days' written notice to the Escrow Agent from the City of the default, the Escrow Agent shall immediately convert the securities to cash and shall distribute the cash as instructed by the City. 8. Upon receipt of written notification from the City certifying that the Contract is final and complete and that the Contractor has complied with all requirements and procedures applicable to the Contract, the Escrow Agent shall release to Contractor all securities and interest on deposit less escrow fees and charges of the Escrow Account. The escrow shall be closed immediately upon disbursement of all moneys and securities on deposit and payments of fees and charges. 9. The Escrow Agent shall rely on the written notifications from the City and the Contractor pursuant to sections (1) to (8), inclusive, of this agreement and the City and Contractor shall hold Escrow Agent harmless from Escrow Agent's release, conversion and disbursement of the securities and interest as set forth above. 10. The names of the persons who are authorized to give written notices or to receive written notice on behalf of the City and on behalf of Contractor in connection with the foregoing, and exemplars of their respective signatures are as follows: For City: Title _____ _;F....:.l.;..;.N"""A.;..;.N=C=E..;;;D;..:.;IR"""E=C;::;..T.:..;O=R-'--__ _ Name _________________ _ Signature ________________ _ Address 1635 Faraday Avenue, Carlsbad, CA 92008 For Contractor: Title ------------------- Name _________________ _ Signature ________________ _ Address ________________ _ For Escrow Agent: Title _________________ _ Name _________________ _ Signature ________________ _ Address ----------------- At the time the Escrow Account is opened, the City and Contractor shall deliver to the Escrow Agent a fully executed counterpart of this Agreement. Contract No. «PROJNUM» Item #10 p cf'gijl'3™ Mf ages IN WITNESS WHEREOF, the parties have executed this Agreement by their proper officers on the date first set forth above. For City: Title. ________ ..:.:M.:.:..A..:...;Y:.....:O=-=R--'-------- Name ________________ _ Signature _______________ _ Address 1200 Carlsbad Village Drive, Carlsbad, CA 92008 For Contractor: Title _________________ _ Name ________________ _ Signature _______________ _ Address ________________ _ For Escrow Agent: Title _________________ _ Name ________________ _ Signature _______________ _ Address ----------------- Contract No. «PROJNUM» Item #10 SMRH:4857-5235-1752.26 June 21, 2022 EXIDBIT "H" THE INGRESS/EGRESS LICENSED PREMISES EXHIBIT "H" Item #10 0XSN-323207 Page 84 of 107