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2018/06/20 Forterra Pipe & Precast, LLC FY18 License agreement LICENSE AGREEMENT TO MAINTAIN FACILITIES AREAS IN PUBLIC RIGHT OF WAY This License Agreement ("Agreement" or "License Agreement"), dated as of n v , 2018 ("Effective Date") is issued by the CITY OF MENIFEE, a California municipal corporation, ("City" or "Menifee" or "Licensor") to Forterra Pipe & Precast, LLC, a California Limited Liability Company ("Licensee"). Licensor and Licensee are sometimes individually called a "Party" and collectively as the "Parties." Except as indicated otherwise, all references to Licensor include its elected officials, officers, directors, employees, agents, and volunteers. Except as indicated otherwise, all references to Licensee include its personnel, employees, agents, and subcontractors. RECITALS WHEREAS, Licensor is the intended owner of certain property to be annexed to the Citywide Community Facilities District (CFD) 2015-2 pursuant the condition, that prior to issuing a Building Permit, Licensee shall complete the annexation of the Proposed Right-of-Way ("ROW"), into the boundaries of the City of Menifee citywide Community Facilities Maintenance District(Services) CFD 2015-2. WHEREAS, Licensee seeks responsibility to maintain all landscaping areas within the ROW, and agrees to pay for maintenance including water costs and electrical costs; and WHEREAS, subject to the terms of this Agreement, Licensor will allow Licensee to assume responsibility of maintaining the ROW (as defined below). NOW, THEREFORE, for good and valuable consideration the receipt and sufficiency of which is acknowledged, this Agreement is issued under these covenants, terms, and conditions: 1. DEFINITIONS. 1.1. "Agency" means any governmental agency or quasi-governmental agency other than the City, including the FCC and the PUC. 1.2. "City" or "Menifee" means the City of Menifee, a municipal corporation and charter city, in California and Licensor. 1.3. "Commencement Date" means the first day of the month following the month in which (a) Menifee approves this Agreement. 1.4. "Community Facilities District" ("CFD") means City of Menifee citywide Community Facilities Maintenance District (Services) CFD 2015-2 responsible for the maintenance of LICENSE AGREEMENT TO MAINTAIN FACILITIES AREAS IN PUBLIC RIGHT OF WAY Page 1 of 1 public improvements or facilities that benefit Licensee's development, graffiti abatement, and other public improvements or facilities as approved by the Public Works Director including but not limited to, streetlights, streets, drainage facilities. 1.5. "Laws" means any applicable judicial decisions, statutes, constitutions, ordinances, resolutions, regulations, rules, tariffs, administrative orders, certificates, orders, or other requirements of the City or other Agency having joint or several jurisdiction over the parties to this Agreement, in effect either at the time of execution of this Agreement or during the Term of this Agreement. 1.6. "Licensee" means the Licensee as defined above and its lawful successors, assigns, and transferees. 1.7. "Licensee Facilities" means the Licensee's improvements as contemplated and described in the Conditions of Approval for Conditional Use Permit No. 2016-263 as revised under Conditional Use Permit No. 2016-263 "FORTERRA PIPE MANUFACTURING FACILITY" as approved by the City of Menifee on July 27, 2017. 1.8. "Person" means an individual, a corporation, a limited liability company, a general or limited partnership, a sole proprietorship, a joint venture, a business trust, and any other form of business association, other than Licensee. 1.9. "Provision" means any agreement, clause, condition, covenant, qualification, restriction, reservation, term, or other stipulation in this Agreement that defines or otherwise controls, establishes, or limits the performance required or permitted by any Party. All Provisions, whether covenants or conditions, shall be deemed both covenants and conditions. 1.10. "Proposed Right-of-Way" ("ROW") means that portion of land fronting Licensee's existing building, and proposed building, along Palomar and Matthews Road and shown in Exhibit "A"attached to and made part of this Agreement. 1.11. "Site Plan" means City-approved drawings, sketches, and specifications pertaining to the Licensee Facilities submitted by Licensee detailing method and other information deemed necessary by Menifee in its sole discretion. 2. TERM. The initial term of this Agreement shall be twenty (20) years commencing upon the Effective Date of this Agreement, unless otherwise terminated under this Agreement ("Initial Term"). Following the Initial Term, if not terminated, the Agreement shall automatically be renewed for twenty (20) years on the same terms as set forth in this Agreement unless either Licensor or Licensee terminates this Agreement by written notice to the other Party at least ninety(90)Days prior to the expiration of the Initial Term or any Extension Term. The "Term" shall refer to the Initial Term and each Extension Term (if applicable), unless stated elsewhere within this Agreement. LICENSE AGREEMENT TO MAINTAIN FACILITIES AREAS IN PUBLIC RIGHT OF WAY Page 2 of 2 3. SCOPE OF LICENSE. 3.1. General. Licensor hereby grants to Licensee a non-exclusive license ("License") in, on, across, and over the ROW in accordance with the restrictions provided by Section 4 of this Agreement Any rights granted to Licensee under this Agreement, which shall be exercised at Licensee's sole cost and expense, shall be subject to the prior and continuing right of the City under Laws for any and all parts of the Public Right-of-Way only, exclusively or concurrently, with any other Person or Persons, and further shall be subject to all deeds, easements, dedications, conditions, covenants, restrictions, encumbrances and claims of title as of the installation of any Licensee Facility, which may affect the Public Right-of-Way. Licensee shall not infringe on the foregoing without the written approval of the affected Party. If such infringement occurs, Licensor may terminate this Agreement with ten (10) days written notice if such infringement is not cured within thirty (30) days of written notice from Licensor of such infringement. Nothing in this Agreement shall be deemed to grant, convey, create, or vest a perpetual real property interest in Licensor's land. 3.2. Standards and Licensee's Responsibilities. All landscaping and appurtenant facilities within the ROW shall be built and maintained to City standards. The Licensee shall maintain all landscaping areas within the ROW and agrees to pay for maintenance including water costs and electrical costs. Licensee, its officers, employees, contractors, subcontractors, agents, visitors, and volunteers shall not damage the ROW or commit waste thereon. As consideration for allowing this use, Licensee shall, at its sole cost and expense, and to the satisfaction of the Licensor, keep the ROW clean and neat in appearance and well-maintained. As a condition of this License Agreement a mow curb and a separate irrigation system will not be required for irrigating the landscape improvements within the City ROW. 3.3. Permits. This Agreement is made contingent upon Licensee obtaining all certificates, permits, entitlements, environmental review, studies, and other approvals that any federal, state, or local authority may require for the construction and operation of Licensee's Facilities. 3.4. Non-interference. Except as permitted by Laws or this Agreement, in the performance and exercise of its rights and obligations under this License Agreement, Licensee shall not interfere with the existence and operation of any Public Right-of-Way, sanitary sewers, water mains, storm drains, gas mains, poles, aerial and underground electric and telephone wires, electroliers, cable television, and other telecommunications, utility, and municipal property without the express prior written approval of Licensor. 3.5. Compliance with Laws. Licensee shall comply with all Laws in the exercise and performance of its rights and obligations under this Agreement. 3.6. No warranty. Access to the ROW under this Agreement is conditioned upon acknowledgment by the Licensee that Licensor makes no representations or warranties LICENSE AGREEMENT TO MAINTAIN FACILITIES AREAS IN PUBLIC RIGHT OF WAY Page 3 of 3 concerning the condition of the ROW as it may exist from time to time and that Licensor has no duty to warn Licensee of any conditions. Licensee agrees to assume all risks associated with entry and presence on the ROW. 4. INDEMNIFICATION. Licensee shall indemnify, defend, and hold harmless the City of Menifee and its elected city council, appointed boards, commissions, committees, officials, employees, volunteers, contractors, consultants, and agents (herein, collectively, the "Indemnitees") from and against any and all claims, liabilities, losses, fines, penalties, and expenses, including without limitation litigation expenses and attorney's fees, arising out of either (i) approval of the Agreement or actions related to the Agreement, including without limitation any judicial or administrative proceeding initiated or maintained by any person or entity challenging the validity or enforceability of the Agreement, any finding or determination made and any other action taken by any of the Indemnitees in conjunction with such approval, including without limitation any action taken pursuant to the California Environmental Quality Act ("CEQA"), or (ii) the acts, omissions, or operations of the Licensee and the directors, officers, members, partners, employees, agents, contractors, and subcontractors of each person or entity comprising the Licensee with respect to the use, planning, design, construction, application process, utility services, and maintenance of the ROW. Licensor shall notify the Licensee of any claim, lawsuit, or other judicial or administrative proceeding (herein, an "Action") within the scope of this indemnity obligation and request that the Licensee defend such Action with legal counsel reasonably satisfactory to the City. If the Licensee fails to so defend the Action, the City shall have the right but not the obligation to do so with counsel of their own choosing, with no right of approval by Licensee and, if they do,the Licensee shall promptly pay the City's full cost thereof, with payments made at least on a monthly basis. Notwithstanding the foregoing, the indemnity obligation under clause (ii) of the first sentence of this condition shall not apply to the extent the claim arises out of the willful misconduct or the sole active negligence of the City. This Agreement shall survive any final action on the Agreement, and shall survive and be independent of any approvals, even if such approvals are invalidated in whole or part. 5. INSURANCE Licensee, at Licensee's sole expense, shall obtain and keep in force during the Term the following insurance coverages, with commercially acceptable deductibles: (1) a Commercial General Liability policy insuring against all liability of the Licensee arising out of or in connection with this Agreement, which shall have a per occurrence limit of at least Two Million Dollars ($2,000,000) and an aggregate limit of at least Five Million Dollars ($5,000,000), shall name the City Indemnified Parties as additional insureds, and shall be primary and non- contributing with any other insurance available to City; (2) Workers' Compensation insurance, including Employer's Liability coverage, in compliance with statutory requirements, and a Waiver of Subrogation in favor of City; and (3) Automobile Liability insurance covering all owned, hired, and non- owned automobiles using the Access Routes pursuant to this Agreement, LICENSE AGREEMENT TO MAINTAIN FACILITIES AREAS IN PUBLIC RIGHT OF WAY Page 4 of 4 which shall have a per occurrence limit of at least One Million Dollars ($1,000,000) and an aggregate limit of at least Two Million Dollars ($2,000,000), shall name the City Indemnified Parties as additional insureds, and shall be primary and non-contributing with any other such insurance available to City. All general liability insurance and property damage insurance shall insure performance by the Licensee of the indemnity, defense, protection and hold harmless provisions in this Agreement. The policy shall be written on an occurrence basis and shall include, at a minimum, bodily injury,property damage,personal injury and contractual liability. The limits of insurance liability shall not limit Licensee's indemnification, defense, protection and/or hold harmless obligations under this Agreement. Each insurance policy required by this Agreement shall be evidenced by a certificate of insurance and Additional Insured Endorsement. If the Licensee fails to procure or cause to be procured and maintained the required insurance, City may, but shall not be required to,procure and maintain such insurance,but at the expense of Licensee. Insurance required by this Agreement shall be placed with and issued by companies rated A-; VII or better in `Best's Key Rating Guide." Concurrent with or prior to the commencement of the Term, Licensee shall deliver to City certificate(s) of insurance evidencing the existence and amounts of such insurance. No policy shall be cancelled or coverage reduced prior to the end of the Term. 6. LIMITATION OF LIABILITY Licensor shall not be liable for, and Licensee waives, all claims against Licensor and its elected city council, appointed boards, commissions, committees, officials, employees, volunteers, contractors, consultants, and agents for loss or damage while using the ROW or the property of any person claiming by, through or under Licensee, as a consequence of or in connection with this Agreement regardless of the cause including, without limitation, any right to seek, claim or obtain damages, punitive damages or consequential damages, including, without limitation, any claim for lost profits. The Parties expressly agree that Licensee shall not be liable to Licensor for incidental, consequential, punitive, or exemplary damages, regardless of whether Licensee was advised of, or otherwise should have known of, the possibility of such damages, regardless of the legal theory or basis for such claim. Notwithstanding the foregoing, the Parties acknowledge that any limitation of liability under this Section shall not apply to, or diminish Licensee's responsibility for, any bodily injury, death,personal injury, or damage to the property of a Person not a party to this Agreement, including, without limitation, the injury to, death of, or personal injury to any Person, City employee, or Persons working for, or on behalf of, Licensee or Licensee's contractors or subcontractors, if any. 7. NOTICES. All notices which shall or may be given under this Agreement shall be in writing and delivered personally or transmitted: (i) through the United States mail, by registered or certified mail, postage prepaid; or(ii) with prepaid overnight delivery service : LICENSE AGREEMENT TO MAINTAIN FACILITIES AREAS IN PUBLIC RIGHT OF WAY Page 5 of 5 City: City of Menifee Attention: Director of Public Works 29714 Haun Road Menifee, CA 92586 With Copy to: Rutan&Tucker, LLP 611 Anton Boulevard, Suite 1400 Costa Mesa, CA 92626 Attention: City Attorney, City of Menifee Licensee: Forterra Pipe & Precast 26380 Palomar Road Menifee, CA 92586 Attention: Ryan Wright Notices shall be deemed given upon receipt with personal delivery, five (5) days after deposit in the mail, or the next day with overnight delivery. Either Party may occasionally designate any other address for this purpose by written notice to the other Party in the manner set forth above. 8 TERMINATION. 8.1 Except as set forth in this Agreement, this License Agreement may be terminated by either Party upon thirty (30) days, prior written notice to the other Party upon a default of any material covenant or term by the other Party, which default is not cured within thirty (30) days of receipt of written notice of default or, if such default is not curable within thirty (30) days, if the defaulting Party fails to commence such cure within thirty (30) days or fails to thereafter diligently prosecute such cure to completion. 8.2 Either parry may terminate this Agreement without cause with ninety (90) days prior written notice. 9. MISCELLANEOUS PROVISIONS. 9.1 Licensee shall not assign, sell, or transfer its interest under this Agreement without the express prior written approval and consent of the City, which consent shall not be unreasonably withheld, conditioned, or delayed.Any attempted assignment, sale, or transfer in violation of this Section shall be void. Transferring the rights and obligations of Licensee to a parent, subsidiary, or other affiliate of Licensee, or to any successor-in-interest or entity acquiring thirty-five percent (35%) or more of Licensee's stock or assets, shall not be deemed an assignment. Licensee shall give to the City written notice of any such transfer within thirty (30) days thereafter. If any proposed transferee will have a financial strength or creditworthiness after the proposed transfer of at least equal to that of Licensee prior to LICENSE AGREEMENT TO MAINTAIN FACILITIES AREAS IN PUBLIC RIGHT OF WAY Page 6 of 6 the transfer, it shall not be deemed reasonable for the City to withhold its consent to the proposed transfer unless the proposed transferee has a record of nonperformance under similar agreements which is unacceptable to the City under a reasonable standard of evaluation. 9.2 Licensee shall not permit any mechanics or other liens to be filed against the ROW as a result of or in connection with the rights granted under this Agreement. 9.3 This Agreement contains the entire understanding between the Parties regarding the subject herein. There are no representations, agreements or understandings (whether oral or written) between or among the Parties relating to the subject of this License Agreement, which are not expressed herein. 9.4 This Agreement may not be amended except under a written instrument signed by both Parties. 9.5 If any one or more Provisions of this Agreement shall be held by court of competent jurisdiction in a final judicial action to be void, voidable, or unenforceable, such Provisions shall be deemed severable from the remaining Provisions of this Agreement and shall in no way affect the validity of the remaining portions of this Agreement. 9.5 This Agreement shall be governed and construed by and under the Laws of the State of California and the Menifee Municipal Code, Regulations of the City of Menifee CFD as amended from time-to-time, excluding any choice of law provisions or conflict of law principals which would require reference to the laws of any other jurisdictions, but may be subject to superseding federal Law. In the event that suit is brought by a Parry, the Parties agree that trial of such action shall be vested exclusively in the State Court of California, County of Riverside. 9.6 Nothing in this Agreement shall be deemed or otherwise construed as granting any rights, benefits or interests to any individual, entity or body who / that is not a party to this Agreement. 9.7 All exhibits referred to in this Agreement and any addenda, attachments, and schedules which may, occasionally, be referred to in any duly executed amendment to this Agreement are by such reference incorporated in this Agreement and shall be deemed a part of this Agreement as though more set forth herein. All requirements or Provisions contained in the exhibits are material terms of this Agreement and enforceable 9.8 This Agreement is binding upon the successors and assigns of the parties subject to the requirements of Section 9.1, infra. 9.9 Each individual executing this Agreement on behalf of a Party warrants that: (i) such Party is duly organized and existing, (ii)the signer duly may execute and deliver this Agreement on behalf of the Party, (iii) by so executing this Agreement, such Party is formally bound to LICENSE AGREEMENT TO MAINTAIN FACILITIES AREAS IN PUBLIC RIGHT OF WAY Page 7 of 7 this Agreement, (iv)the Party's entry into this Agreement violates no Provision of any other agreement to which said Party is bound, and (v) there is no litigation or legal proceeding that would prevent said Party from signing this Agreement. 9.10 Captions. The captions of the Sections in this Agreement are for convenience only, and are not intended to be any part of the body of this Agreement, nor are they intended to be referred to in construing this Agreement. 9.11 Counterparts. This Agreement may be executed in one or more counterparts, and all the counterparts shall constitute but the same agreement, notwithstanding that all parties are not signatories to the same or original counterpart. 9.12 Advice of Counsel; Interpretation. Each Party acknowledges that it has had the benefit of advice of competent legal counsel regarding its decision to enter this Agreement. This Agreement shall be interpreted to give effect to their fair meaning and shall be construed as prepared by both parties. 9.13 No Waiver. The failure of any Party to enforce against the other a Provision of this Agreement shall not constitute a waiver of that Party's right to enforce such Provision at a later time. 9.14 Disputes. The Parties agree to make a diligent, good-faith attempt to resolve any claim, controversy or dispute arising out of this Agreement ("Disputes"). Authorized representative shall be selected by each Party to attempt to resolve Disputes by phone or in person. In any action seeking the enforcement or interpretation of any of the terms or provisions of this Agreement, the prevailing Party in that action shall be awarded, in addition to allowable damages, injunctive or other relief, its reasonable costs and expenses, including, without limitation, reasonable attorneys' fees and expert witness fees. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized officers and representatives as of the Effective Date written at the beginning of this Agreement. "City" CITY OF MENIFEE,a California municipal corporatio Dated:-,,�ktl� �� ,2018 By: Print Name: Lesa Sobek Its: Mayor Pro Tern LICENSE AGREEMENT TO MAINTAIN FACILITIES AREAS IN PUBLIC RIGHT OF WAY Page 8 of 8 APPROVED AS TO FORM ATTEST: RUTAN & TUCKER,LLP By: S rah Manwaring Attorneys for the Ci Menifee City Clerk "Licensee" FORTERRA PIPE & PRECAST,LLC Dated: 01 ,2018 By: Print Name:- Its: M.a..t A5 F./L Dated: ,2018 By: Print Name: Its: LICENSE AGREEMENT TO MAINTAIN FACILITIES AREAS IN PUBLIC RIGHT OF WAY Page 9 of 9 CALIFORNIA ALL- PURPOSE CERTIFICATE OF ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California } County of 'R_t yers cdP, } On 1,3h4_ -7, 2pm before me, Ic issa M •'EIKim ,Nb-Var j _�1gbi, , ere insert name ana title ot ine officer) personally appeared CLVI VI f i ayy- , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)@are subscribed to the within instrument and acknowledged to me that he she/they executed the same in his her/their authorized capacity(ies), and that by (Lis)her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. MELISSA M. ELKIN WITNESS my hand and official seal. Commission No. 2212312 NOTARY PUBLIC-CALIFORNIA {f RIVERSIDE COUNTY amy Comm.Expires SEPTEMBER 28,2021 Notary Public Signature (Notary Public Seal) ADDITIONAL OPTIONAL INFORMATION INSTRUCTIONS FOR COMPLETING THIS FORM This form complies with current California statutes regarding notary wading and, DESCRIPTION OF THE ATTACHED DOCUMENT if needed should be completed and attached to the document.Acknowledgments front other states may be completed for documents being sent to that state so long CSQ— Q�Q�Yhex �D as the wording does not require the California notary to violate California notary law. (Title or description of attach(A document) • State and County information must be the State and County where the document CY�Q�errhi> �[ Lt 1 I/_ �S ,� signer(s)personally appeared before the notary public for acknowledgment. fr(6 )H • Date of notarization must be the date that the signer(s)personally appeared which (Title or description of attache cument co ued) _n-' must also be the same date the acknowledgment is completed. -9ub1«' %g�� N • The notary public must print his or her name as it appears within his or her Number of Pages Document Date commission followed by a comma and then your title(notary public). • Print the name(s) of document signer(s) who personally appear at the time of notarization. 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If the claimed capacity is a corporate officer,indicate the title(i.e.CEO,CFO,Secretary). 2015 Version wvvw.NotaryC[asses.com 800-873-9865 • Securely attach this document to the signed document with a staple.