HomeMy WebLinkAboutC-6075(B) - License Agreement for the Construction and Maintenance of the Marina Park Monument Signe*—N
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LICENSE AGREEMENT FOR THE CONSTRUCTION AND
Z
MAINTENANCE OF THE MARINA PARK MONUMENT
V
SIGN BETWEEN THE CITY OF NEWPORT BEACH AND
LIGHTHOUSE CAFE, LLC
This License Agreement for the Construction and Maintenance of the Marina Park
Monument Sign ("Agreement") is made and entered into this "i day of
J V U—i , 2023 ("Effective Date"), by and between the CITY OF NEWPORT
BEACH, a California municipal corporation and charter city ("Licensor" or "City"), and
Lighthouse Cafe, LLC, a California limited liability company ("Licensee"). City and
Licensee may be individually referred to herein as a "Party," and collectively referred to
herein as the "Parties."
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A. Licensor, by virtue of a 1978 legislative grant found in Chapter 74 of the Statutes of
1978, as amended ("Beacon Bay Bill"), acts on behalf of the State of California as
the trustee of tidelands located within the City's limits.
B. On November 3, 1992, a majority of the electors in the City approved Measure M
authorizing the City Council to lease tidelands and waterfront property consistent with
the provisions of state law.
C. The California Legislature amended the Beacon Bay Bill in 2012 via State Senate Bill
No. 1577 to include certain lands located in lower Newport Harbor between 15th
Street and 18th Street on the Balboa Peninsula, commonly referred to as "Marina
Park," which includes a public marina, public park with restrooms, public parking lot,
a community center with offices, a sailing center, and a restaurant, all as depicted on
Exhibit "A," incorporated herein by this reference ("Licensor Property").
D. On March 27, 2015, Licensor entered into that certain Marina Park Lease Agreement
with Licensee, concerning a three thousand sixty-nine (3,069) square foot restaurant
facility located at the Marina Park Community Center, with an address of 1600 West
Balboa Boulevard, Newport Beach, California 92663, memorialized by a
Memorandum of Lease Agreement recorded on May 8, 2015 as Instrument No.
2015000239402 in the Official Records of Orange County, California, incorporated
herein by this reference ("Lease").
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E. Licensee desires to obtain non-exclusive access across that certain portion of the
Licensor Property as more particularly depicted in Exhibit "B", incorporated herein
by this reference ("License Area"), for the purpose of constructing and maintaining
a monument sign as more particularly described herein and depicted in Exhibit "C,"
incorporated herein by this reference ("Monument Sign").
F. Licensor desires to permit Licensee non-exclusive access to the License Area in
order to construct and maintain the Monument Sign according to the terms and
conditions of this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties agree as follows:
1. Agreement Term. The term of this Agreement shall commence on the
Effective Date and shall terminate commensurate with the termination or expiration of the
Lease, as may be amended, restated, superseded, extended, or assigned, unless
terminated earlier as provided for herein.
2. License. Subject to the requirements, assurances, and covenants of
Licensee set forth in this Agreement, Licensor hereby issues to Licensee, a nonexclusive,
nontransferable, revocable license, on, over, under, and across the License Area for: (1)
construction activities to be performed by or on behalf of Licensee within the License Area
for the purpose of construction of the Monument Sign, and (2) for maintenance and repair
of the Monument Sign and related improvements as may be needed from time to time
("License").
3. Monument Sign.
3.1. Approvals. Prior to construction of the Monument Sign, Licensee shall
submit for review and obtain approval from Licensor of the final design plans for the
Monument Sign. Licensee, at its sole cost and expense, shall be solely responsible for
securing and obtaining all necessary entitlements, permits, licenses and approvals required
by law from any applicable agency, including but not limited to, a building permit from the
City of Newport Beach. Licensee shall be solely responsible for compliance with any
covenants, conditions, or restrictions on Licensor Property that may pertain or apply to the
Monument Sign.
3.2. Design. The Monument Sign shall be a freestanding monument sign in
the location depicted in, and in substantial conformance with the depiction in Exhibit "C"
attached hereto.
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3.3. Aesthetic. The Monument Sign shall comply with the City's municipal
code regulations, any approved sign program for the Property, the deed restrictions
applicable to the Property, and shall conform to the existing design and aesthetic of
Licensor Property, which may change from time to time. Upon Licensor's request, Licensee
shall be solely responsible for updating the appearance and aesthetics of the Monument
Sign to match the design and aesthetic of Licensor Property as it may change from time to
time.
3.4. Illumination. Licensee shall not include illumination as part of the
design or construction of the Monument Sign. Subject to Licensor approval, Licensee may
design and install illumination consisting of solar powered uplighting of the Monument Sign
in conformance with the City Municipal Code and the design aesthetic of Licensor Property.
Illumination shall cease between the hours of 10:00 p.m. and 7:00 a.m.
3.5. Licensee Signage. Licensee may install and maintain signage on the
Monument Sign in substantial conformance with the depiction in Exhibit "C." Licensee
signage shall be limited to advertising Licensee's business located at Licensor Property and
shall conform to the requirements and limitations included in the Lease. All signage placed
by Licensee on the Monument Sign shall be removed by Licensee upon termination or
expiration of this Agreement at Licensee's sole expense, and the Monument Sign shall be
left in a good and workman like condition ready for installation of new signage.
3.6. Licensor Signage. Licensor may install, and may permit third parties to
install, signage on the Monument Sign providing directions to, identification of, or notice of
goods, services, concessions, businesses, activities, or events located at Licensor Property,
or that pertain to City activities, events, or public messages generally. Licensee shall not be
responsible for maintenance of signage installed pursuant to this subsection.
4. Costs of Construction. In conjunction with Section 8.3 of the Lease,
Licensee shall bear all costs and expenses associated with the installation, construction and
Work for the Monument Sign, including the foundation, sign, illumination, landscaping,
landscaping irrigation, and/or hardscape. Licensee shall also perform Work to replace,
revise, repair, and maintain a pre-existing panel on the monument sign near the driveway
entrance to the Licensor Property, constructed under the terms of the Lease, and shall do
so only under the same terms and conditions as set forth in this License.
5. Access. Licensee and its agents, employees, consultants, contractors and
subcontractors (collectively, "Licensee's Agents") shall have the right to enter upon the
License Area between the hours of 8 a.m. to 5 p.m. Monday to Friday, excluding City
holidays, solely for the purposes permitted by this Agreement. Licensee shall provide
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Licensor with a minimum of seven (7) days' advance notice prior to occupying any part of
the License Area. Licensee's access to the License Area shall be subject to approval of
Licensor, and may be curtailed or terminated at any time.
6. Reservation by Licensor. Notwithstanding anything to the contrary stated
herein, Licensor hereby reserves the right to use, occupy, enter, and inspect the License
Area for any purpose whatsoever, and reserves the right to grant or issue additional rights,
licenses, easements or encumbrances to third parties to use or occupy the License Area
for any purpose whatsoever, provided that such use does not materially prevent or impair
the use or exercise of the License Area by Licensee. Licensee's access and use of the
License Area pursuant to this Agreement shall be subordinate to any other grant or use
by Licensor.
7. Use of License Area. Licensee covenants and agrees that Licensee shall:
(a) only use the License Area in a careful and proper manner in accordance with the purpose
of this Agreement; (b) not bring or use any Hazardous Materials, as defined by state or
federal law, on the License Area in violation of applicable law; and (c) not use or permit the
use of the License Area in any manner that creates a nuisance or violates any law.
8. Condition of License Area. Licensee accepts the License Area and all
aspects thereof in its "AS IS," "WHERE IS" condition, without warranties, either express
or implied, "WITH ALL FAULTS," including but not limited to both latent and patent
defects, the existence of hazardous materials, if any, and subject to any other easements,
rights, or other encumbrances affecting the License Area. Licensee hereby waives all
warranties, express or implied, regarding the title, condition and use of the License Area,
including, but not limited to any warranty of merchantability or fitness for a particular
purpose. Without limiting the generality of the foregoing, the License is subject to all
zoning regulations, restrictions, rules and ordinances, building restrictions and other laws
and regulations now in effect or hereafter adopted by any governmental authority having
jurisdiction, and reservations, easements, rights -of -way, covenants, conditions,
restrictions, encroachments, liens, and encumbrances and all other matters of record or
enforceable at law or in equity. Licensee shall obtain any and all consents, approvals,
permissions, and agreements to cross, encumber or encroach upon any other easements
or rights of others related to its use of the License.
9. Utilities. Licensee shall be solely responsible, at its sole cost, for the
permitting, installation, and connection of utilities, if any, including but not limited to,
electricity, necessary for of the Work to install the Monument Sign. Licensee shall require
that all contractors of any level engaged by or on Licensee's behalf use their best efforts
to minimize disruption of utilities to Licensor Property. It is understood that functional
utilities are critical to the ongoing commercial operations of Licensor Property and that if
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utilities are not operational then business operations may be disrupted. If Licensee
requires interruption of utilities for installation or maintenance, Licensee shall provide
Licensor and Licensor Property tenants at least seven (7) days advance notice thereof,
including estimates of the length of time of the disruption, the nature of the disruption.
Licensee shall instruct and direct all contractors of any level engaged by or on Licensee's
behalf to minimize the length of time of such disruption.
10. Traffic Circulation. Licensee shall require that all contractors of any level
engaged by or on Licensee's behalf use their best efforts to minimize disruption of traffic
circulation on, over, and around Licensor Property. It is understood that circulation of
traffic is critical to the ongoing commercial operations on Licensor Property and that if the
License Area is not reasonably passable by traffic, business operations may be disrupted.
If Licensee requires use of the License Area in a manner likely to disrupt traffic circulation,
ingress or egress, Licensee shall provide Licensor's Project Administrator at least seven
(7) days' advance notice thereof, including estimates of the length of time of the disruption
and the nature of the disruption, as well as obtain the necessary permits and approvals
of any such Work with City's Public Works Department. Licensee shall instruct and direct
all contractors of any level engaged by or on Licensee's behalf to minimize the length of
time of such disruption. Notwithstanding the foregoing, at no time during construction shall
ingress, egress or traffic circulation on, over, or around Licensor Property be completely
obstructed. Licensee shall be solely responsible to ensure that all vehicle and pedestrian
traffic is prevented from entering or traversing construction zones or hazardous areas by
erecting appropriate barriers, signage, and other directions or traffic devices, to ensure
the safe redirection or detour of vehicle and pedestrian traffic around such areas for the
safety of the general public, which shall be done in conformance with law.
11. Standard of Care.
11.1 Licensee, at its sole cost and expense, shall ensure Licensee and
Licensee's Agents conduct all construction and maintenance activities in a good and
workmanlike manner commensurate with community professional standards and with the
ordinary degree of skill and care that would be used by other reasonably competent
practitioners of the same discipline under similar circumstances. Licensee and Licensee's
Agents shall perform all Work in a manner to minimize public inconvenience and possible
hazard, to restore other work areas to their original condition and former usefulness as
soon as possible, and to protect public and private property. Licensee shall be liable for
any private or public property damage during the performance of the Work by Licensee
or its agents.
11.2 Licensee, at its sole cost and expense, shall comply with all Newport
Beach Municipal Code requirements, including abiding by construction hours and
ensuring noise generated by the Work performed does not create a nuisance. Further,
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prior to the start of any Work, Licensee shall coordinate the construction schedule with
the Project Administrator and on -site City Recreation Manager at the Property, to ensure
the Work performed does not negatively impact the City's scheduled programs or events.
11.3 All Work shall be performed by qualified and experienced personnel
who are not employed by City, nor have any contractual relationship with City. Upon
completion of Work, Licensee shall provide Licensor with evidence reasonably
satisfactory to Licensor of such completion. By delivery of completed Work, Licensee
certifies that the work conforms to the requirements of this Agreement, all applicable
federal, state and local laws, and legally recognized professional standards.
12. Compliance with Laws. Licensee shall, at its sole cost and expense,
comply with all statutes, ordinances, regulations and requirements of all governmental
entities, including federal, state, county or municipal, whether now in force or hereinafter
enacted. In addition, all work prepared by Licensee shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be subject
to approval of the Project Administrator and City.
13. Independent Contractor. It is understood that Licensee is an independent
contractor and not an agent or employee of Licensor. The manner and means of contracting
for and management of the construction of the Monument Sign, and thereafter, the
maintenance thereof, shall be under the control of Licensee, except to the extent they are
limited by statute, rule or regulation and the expressed terms of this Agreement. No civil
service status or other right of employment shall accrue to Licensee's employees. Nothing
in this Agreement shall be deemed to constitute approval for Licensee or any of Licensee's
employees or agents, to be the agents or employees of Licensor.
14. Administration. This License shall be administered by the Community
Development Department. City's Real Property Administrator, or designee, shall be the
Project Administrator and shall have the authority to act for City under this License. The
Project Administrator or designee shall represent City in all matters pertaining to the
construction, maintenance, and repair ("Work") pursuant to this License.
15. Prevailing Wages. Pursuant to the applicable provisions of the Labor Code
of the State of California, not less than the general prevailing rate of per diem wages
including legal holidays and overtime work for each craft or type of workman needed to
execute the work contemplated under this Agreement shall be paid to all workmen employed
on the work to be done according to this Agreement by Licensee and any subcontractor. In
accordance with the California Labor Code (Sections 1770 et seq.), the Director of Industrial
Relations has ascertained the general prevailing rate of per diem wages in the locality in
which the work is to be performed for each craft, classification, or type of workman or
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mechanic needed to execute this Agreement. A copy of said determination is available by
calling the prevailing wage hotline number 415-703-4774, and requesting one from the
Department of Industrial Relations. Licensee is required to obtain the wage determinations
from the Department of Industrial Relations and post at the job site the prevailing rate or per
diem wages. It shall be the obligation of Licensee or any subcontractor under him/her to
comply with all State of California labor laws, rules and regulations and the parties agree
that the Licensor shall not be liable for any violation thereof.
16. Damage to Licensor Property. Should any part of Licensor Property or the
improvements thereon, including buildings, driveways, walkways, curbs, sidewalks,
irrigation systems, fences, walls, lawn areas, trees, or other landscaping or similar areas
become damaged during the course of or in connection with Licensee's construction
activities at the Licensor Property, Licensee shall repair and restore such improvements,
at Licensee's sole expense, to an equivalent condition as existed prior to Licensee's
activities. Prior to the commencement of work of reconstruction or replacement, plans
shall be presented to Licensor for approval not more than thirty (30) calendar days after
the damage or loss occurs and shall be subject to the written approval of Licensor, which
approval shall not be unreasonably withheld or delayed. The License Area may be utilized
by Licensor for the purpose of restoring, repairing, or conforming the improvements on
Licensor Property as contemplated by this Section. Licensee hereby assigns to Licensor,
on a non-exclusive basis and without limiting its own rights, any and all express or implied
warranties received by Licensee in connection with conformance work on Licensor
Property to be performed under this Section to the extent such warranties exist, are
unexpired, and are assignable. In the event any such damage is not repaired and restored
as required by this Section, Licensee will reimburse Licensor for any losses and expenses
due to such damage. Any such work or repair, restoration or replacement shall be
completed with due diligence, but not longer than one hundred eighty (180) calendar days
after such work is commenced unless delay is due to force majeure or impossibility.
17. Ownership of Improvements. Subject to acceptance by the City, upon
completion of the Work, the Monument Sign and all improvements in connection therewith
located upon the Licensor Property shall become part of, included in, and appurtenant to
the Licensor Property, such that the lawful owners of the Licensor Property shall own the
Monument Sign all such improvements. This Section shall survive the termination of this
Agreement. The Monument Sign shall become the City's property in its then existing "as -
is" condition, with no payment owed to Licensee. Licensee shall execute any documents
as may be required by City to cause the Monument Sign to transfer ownership to City.
18. General Maintenance of Improvements. For the duration of this
Agreement, Licensee shall, at its sole cost and expense, keep the Monument Sign and
all improvements related thereto in good condition and in strict compliance with all
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management and maintenance plans applicable to Licensor Property, including updates
and changes to such management and maintenance plans as may be adopted in the
future from time to time. Such general maintenance shall include, but not be limited to,
periodic cleaning, repair and replacement of lighting, painting or resurfacing of exterior
surfaces, and general upkeep. At the conclusion of each workday within the License Area,
Licensee shall ensure the cleanup and removal of debris so as to maintain the License Area
in as neat and clean a condition as reasonably possible. If, in the judgment of Licensor,
Licensee fails to perform general maintenance or repairs within five (5) calendar days of
receipt of written notice from Licensor therefor, Licensor may perform the deficient
general maintenance or repairs and Licensee shall reimburse Licensor for the cost and
expenses incurred by Licensor therefor, except where such failure or delay is due to force
majeure or impossibility.
19. Urgent Maintenance of Improvements. In the event of graffiti, vandalism,
damage or destruction to the Monument Sign or related improvements, Licensee shall
commence maintenance and repair without delay and as soon as possible, and in no
event more than twenty-four (24) hours after such need arises. If, in the judgment of
Licensor, Licensee fails to commence urgent maintenance or repairs as required by this
Section, Licensor may, without prior notice to Licensee, perform the urgent maintenance
or repairs and Licensee shall reimburse Licensor for the cost and expenses incurred by
Licensor therefor, except where such failure or delay is due to force majeure or
impossibility.
20. Liens. Licensee shall not permit to be imposed, recorded or enforced
against the License Area, Licensor Property, any portion thereof or any structure or
improvement thereon ("Protected Property"), any mechanics, materialmen's, contractors
or other liens arising from, or any claims for damages growing out of, any work or repair,
construction or alteration of improvements in connection with this Agreement. In the event
any lien or stop notice is imposed or recorded on Protected Property, and such lien or
stop notice arises out of, is related to or connected with, or based on, Licensee's conduct,
Licensee shall pay or cause to be paid all such liens, claims or demands before any action
is brought to enforce the same against Protected Property. Notwithstanding the
foregoing, if Licensee in good faith contests the validity of any such lien, claim or demand,
then Licensee shall, at its sole expense, may defend against such lien, claim or demand
provided that Licensee provides Licensor full defense and indemnity therefrom, and
provided Licensee shall pay and satisfy any adverse judgment that may be rendered in
connection therewith before any enforcement against Licensor or Protected Property.
21. Insurance. Without limiting Licensee's duties of defense and
indemnification under this Agreement, Licensee, and its contractors who perform work
pursuant to this Agreement, shall obtain, provide and maintain at their own expense, prior
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to commencement of any work, and for the duration of time that they are in the course of
performing such work, policies of insurance of the type, amounts, terms and conditions
described in the Insurance Requirements attached hereto as Exhibit "D," and
incorporated herein by this reference.
22. Bonding. In the event that the total amount payable by Licensee for
construction of the Monument Sign will exceed Twenty Five Thousand Dollars and 00/100
($25,000.00), Licensee shall obtain, or cause its general contractor who performs the work
to obtain, and provide and maintain at its own expense: (1) a Labor and Materials Payment
Bond in the amount of one hundred percent (100%) of the total amount to be paid for the
work, in substantial conformance with the form attached hereto as Exhibit E and
incorporated herein by this reference; and, (2) a Faithful Performance Bond in the amount
of one hundred percent (100%) of the total amount to be paid for the work, in substantial
conformance with the form attached hereto as Exhibit F and incorporated herein by this
reference. The Labor and Materials Payment Bond and the Faithful Performance Bond shall
be issued by an insurance organization or surety: (1) currently authorized by the Insurance
Commissioner to transact business of insurance in the State of California; (2) listed as an
acceptable surety in the latest revision of the Federal Register Circular 570; and, (3)
assigned a Policyholders' Rating A (or higher) and Financial Size Category Class VII (or
larger) in accordance with the latest edition of Best's Key Rating Guide: Property Casualty.
Licensee shall deliver to Licensor, concurrently with Licensee's execution of the agreement
with the general contractor for the construction of the Monument Sign, a Labor and Materials
Payment Bond and Faithful Performance Bond, a certified copy of the "Certificate of
Authority" of the Insurer or Surety issued by the Insurance Commissioner which authorizes
the Insurer or Surety to transact surety insurance in the State of California.
23. Indemnification. To the fullest extent permitted by law, Licensee shall
indemnify, defend and hold harmless Licensor, its City Council, boards and commissions,
officers, agents, volunteers, employees and any person or entity owning or otherwise in legal
control of the property upon which Licensee performs the work contemplated by this
Agreement (collectively, the "Indemnified Parties") from and against any and all claims
(including, without limitation, claims for bodily injury, death or damage to property),
demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines,
penalties, liabilities, costs and expenses (including, without limitation, attorneys' fees,
disbursements and court costs) of every kind and nature whatsoever (individually, a Claim;
collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly)
to any breach of the terms and conditions of this Agreement, any Work performed under
this Agreement including, without limitation, defects in workmanship or materials or
Licensee's presence or activities (including the negligent, reckless, and/or willful acts, errors
and/or omissions of Licensee, its principals, officers, agents, employees, vendors, suppliers,
consultants, subcontractors, anyone employed directly or indirectly by any of them or for
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whose acts they may be liable, or any or all of them). Notwithstanding the foregoing, nothing
herein shall be construed to require Licensee to indemnify the Indemnified Parties from any
Claim arising from the sole negligence or willful misconduct of the Indemnified Parties.
Nothing in this indemnity shall be construed as authorizing any award of attorneys' fees in
any action on or to enforce the terms of this Agreement. This indemnity shall apply to all
claims and liability regardless of whether any insurance policies are applicable. The policy
limits do not act as a limitation upon the amount of indemnification to be provided by
Licensee.
24. Notices. All notices, demands, requests or approvals, including any change
in mailing address, to be given under the terms of this Agreement shall be given in writing,
and conclusively shall be deemed served when delivered personally, or on the third
business day after the deposit thereof in the United States mail, postage prepaid, first-
class mail, addressed as hereinafter provided.
24.1. All notices, demands, requests or approvals from Licensee to
Licensor shall be addressed to Licensor at:
Attn: Real Property Administrator
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
24.2. All notices, demands, requests or approvals from Licensor to
Licensee shall be addressed to Licensee at:
Attn: Doug Cavanaugh
Lighthouse Cafe, LLC
32565 Golden Lantern, Suite B #1028
Dana Point, CA 92629
25. Termination. This Agreement may be terminated by Licensor at any time
in its sole and absolute discretion upon seven (7) calendar days prior written notice to
Licensee. Additionally, both parties may agree, in writing, to terminate this Agreement at
any time in their collective discretion. Licensee may terminate this Agreement upon prior
written notice to Licensor of a material breach by Licensor which Licensor fails to cure
within thirty (30) calendar days of receipt of notice thereof.
26. Assignment. Neither this Agreement, nor the License issued hereunder,
shall be assigned or transferred without the prior written approval of Licensor. Any
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proposed assignment shall require prior written approval of Licensor, which Licensor may
grant or deny in its sole and absolute discretion. Any of the following shall be construed
as an assignment: the sale, assignment, transfer or other disposition of any of the issued
and outstanding capital stock of Licensee, or of the interest of any general partner or joint
venturer or syndicate member or cotenant if Licensee is a partnership or joint -venture or
syndicate or co -tenancy, which shall result in changing the control of Licensee. Control
means fifty percent (50%) or more of the voting power or twenty-five percent (25%) or
more of the assets of the corporation, partnership or joint -venture. Such assignment shall
be by written assignment executed by Licensee, which memorandum thereof recorded in
the Official Records.
27. Binding. This Agreement shall be binding upon and inure to the benefit of
the parties, their legal representatives, successors, and assigns (collectively,
"successors"). Licensee shall provide timely notice of this Agreement to any potential
successors, and in particular, the duty to maintain the Monument Sign in accordance with
the terms of this Agreement by Licensee's successors.
28. Further Assurances. Each party shall act in good faith to take, or cause to
be taken, and to do, or cause to be done, all reasonable actions necessary or proper, and
to assist and cooperate with the other party, to carry out the intent and purposes of this
Agreement, including but not limited to, the execution of documents.
29. Hazardous Substance.
29.1. Hazardous Substance means: (i) any substance, product, waste or
other material of any nature whatsoever which is or becomes listed, regulated, or
addressed pursuant to the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. Section 9601 et seq. ("CERLCA"); the Hazardous Materials
Transportation Act, 49 U.S.C. Section 1801, et seq.; the Resource Conversation and
Recovery Act, 42 U.S.C. Section 6901 et seq. "RCRA"); the Toxic Substances Control
Act, 15 U.S.C. Section 2601 et seq.; the Clean Water Act, 33 U.S.C. Section 1251 et seq.;
the California Hazardous Waste Control Act, Health and Safety Code Section 25100
et seq.; the California Hazardous Substance Account Act, Health and Safety Code
Sections 25330 et seq.; the California Safe Drinking Water and Toxic Enforcement Act,
Health and Safety Code Sections 25249.5 et seq.; California Health and Safety Code
Sections 25280 et seq. (Underground Storage of Hazardous Substances); the California
Hazardous Waste of Concern and Public Safety Act, Health and Safety Code Sections
25169.5 et seq.; California Health and Safety Code Sections 25501 et seq. (Hazardous
Materials Response Plans and Inventory); or the Porter -Cologne Water Quality Control
Act, Water Code Sections 13000 et seq., all as they, from time -to -time may be amended
or re -codified, (the above -cited statutes are here collectively referred to as the "Hazardous
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Substances Laws") or any other Federal, State or local statute, law, ordinance, resolution,
code, rule, regulation, order or decree regulating, relating to, or imposing liability or
standards of conduct concerning, any hazardous, toxic or dangerous waste, substance
or material, as now or at any time hereafter in effect; (ii) any substance, product, waste
or other material of any nature whatsoever which may give rise to liability under any of
the above statutes or under any statutory or common law theory, including but not limited
to negligence, trespass, intentional tort, nuisance, waste or strict liability or under any
reported decisions of a state or federal court; (iii) petroleum or crude oil; and (iv) asbestos.
29.2. From the Effective Date and throughout the Term, Licensee shall not
use, occupy, or permit any portion of the License Area to be used or occupied in violation
of any Hazardous Substance laws. Notwithstanding any other provision in this Section,
Licensee is not responsible or liable for any Hazardous Substances that are brought on
to the License Area, through migration or other means, by third -parties not associated
with Licensee.
29.3. Notwithstanding any contrary provision of this Agreement, and in
addition to the indemnification duties of Licensee set forth elsewhere in this Agreement,
Licensee indemnifies, defends with counsel reasonably acceptable to City, protects, and
holds harmless City and its elected and appointed officials, boards and commissions,
officers, employees, agents, and volunteers from and against any and all losses, fines,
penalties, claims, demands, obligations, actions, causes of action, suits, costs and
expenses (including, without limitation, attorneys' fees, disbursements and court costs),
damages, judgments, or liabilities, including, but not limited to, any repair, cleanup,
detoxification, or preparation and implementation of any remedial, response, closure or
other plan of any kind or nature which the City and its elected or appointed officials,
boards and commissions, officers, employees, agents or volunteers may sustain or incur,
or which may be imposed upon them, in connection with any breach of Licensee's
obligations or representations in this Agreement or the use of the License Area under this
Agreement, arising from or attributable to the Licensee Parties (defined below) storage or
deposit of Hazardous Substances in violation of applicable laws. This section is intended
to operate as an agreement pursuant to Section 107(e) of CERCLA, 42 USC
Section 9607(e), and California Health and Safety Code Section 25364, to insure, protect,
hold harmless, and indemnify City for any claim pursuant to the Hazardous Substance
laws or the common law.
29.4. Licensee does not, and shall not, authorize any third party to use,
generate, manufacture, maintain, permit, store, or dispose of any Hazardous Substances
in violation of applicable laws on, under, about or within the License Area.
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29.5. Upon expiration or earlier termination of this Agreement, Licensee
shall deliver possession of the License Area in compliance with Hazardous Substance
laws.
29.6. If during the Term of this Agreement, Licensee becomes aware of
(i) any actual or threatened release of any Hazardous Substances on, in, under, from, or
about the License Area in violation of Hazardous Substance laws; or (ii) any inquiry,
investigation, proceeding, or claim by any government agency or other person regarding
the presence of any Hazardous Substances in violation of Hazardous Substance laws on,
in, under, from or about the License Area, Licensee shall give City written notice of the
release or inquiry within five (5) calendar days after Licensee becomes aware or first has
reason to believe there has been a release or inquiry and shall simultaneously furnish to
City copies of any claims, notices of violation, reports, warning or other writings received
by Licensee that concern the release or inquiry.
29.7. If the presence of any Hazardous Substances brought onto the
License Area by Licensee or Licensee's employees, agents, sublessees, licensees,
concessionaires, contractors, or invitees ("Licensee Parties"), or generated by same
during the Term of this Agreement, results in contamination of the License Area or
adjacent properties in violation of Hazardous Substance laws, Licensee shall promptly
take all necessary actions, at Licensee's sole expense, to remove or remediate such
Hazardous Substances in full compliance with applicable laws. Licensee shall provide
notice to City prior to performing any removal or remedial action. Licensee shall not
propose nor agree to any covenant of use restriction as part of any removal or remediation
required as a result of this provision without City's written consent. Licensee shall pay
any costs City incurs in performing Licensee's obligation to clean-up contamination
resulting from Licensee's operations or use of the License Area.
29.8. Should any clean-up of Hazardous Substances for which Licensee
is responsible not be completed prior to the expiration or sooner termination of the
Agreement, including any extensions thereof, then Licensee shall transfer the amounts
required to complete clean-up into an escrow account, together with City -approved
instructions for the disbursement of such amount in payment of the costs of any remaining
clean-up as it is completed, and (Ji) if the nature of the contamination or clean-up required
of Licensee is of such a nature as to make the License Area untenable or unlicensable,
then Licensee shall be liable to City as a holdover licensee until the clean-up has been
sufficiently completed to make the License Area suitable for license to third parties. The
estimated cost of the clean-up shall require approval of the City.
Lighthouse Cafe, LLC Page 13
29.9. If City determines, in its reasonable discretion, that Licensee does
not have insurance or other financial resources sufficient to enable Licensee to fulfill its
obligations under this provision, whether or not accrued, liquidated, conditional, or
contingent, then Licensee shall, at the request of City, procure and thereafter maintain in
full force and effect such environmental impairment liability and/or pollution liability
insurance policies and endorsements, or shall otherwise provide such collateral or
security reasonably acceptable to City as is appropriate to assure that Licensee will be
able to perform its duties and obligations hereunder.
29.10. Licensee's obligations in this Section shall survive the expiration or
earlier termination of this Agreement.
30. Payment of Obligations. Licensee shall promptly pay, when due, any and
all bills, debts, liabilities and obligations incurred by Licensee in connection with, arising
out of, or related to this Agreement.
31. Miscellaneous.
31.1. Recitals. Both parties acknowledge that the above Recitals are true
and correct and are hereby incorporated by reference into this Agreement.
31.2. Compliance with all Laws. Licensee shall, at its own cost and
expense, comply with all statutes, ordinances, regulations and requirements of all
governmental entities, including federal, state, county or municipal, whether now in force
or hereinafter enacted. In addition, all work performed by Licensee shall conform to
applicable City, county, state and federal laws, rules, regulations and permit requirements
and be subject to approval of the Project Administrator and Licensor.
31.3. Force Majeure. The performance of both Parties (except for the
payment of monies earned and/or accrued) shall be excused during the period, and to
the extent, that such performance is rendered impossible, impracticable or unduly
burdensome due to force majeure (as defined below). The term "force majeure" shall
mean acts of God, strikes, lockouts, or labor difficulty; unavailability of parts, equipment
or materials through normal supply sources; or the failure of any utility to supply its
services for reasons beyond the control of the Party whose performance is to be excused.
31.4. Waiver. A waiver by either party of any breach, of any term, covenant
or condition contained herein shall not be deemed to be a waiver of any subsequent
breach of the same or any other term, covenant or condition contained herein, whether
of the same or a different character.
Lighthouse Cafe, LLC Page 14
31.5. Integrated Contract. This Agreement represents the full and
complete understanding of every kind or nature whatsoever between the parties hereto,
and all preliminary negotiations and agreements of whatsoever kind or nature are merged
herein. No verbal agreement or implied covenant shall be held to vary the provisions
herein.
31.6. Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and any attachments attached hereto, the terms
of this Agreement shall govern.
31.7. Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either party by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply.
31.8. Amendments. This Agreement may be modified or amended only by
a written document executed by both parties and approved as to form by the City Attorney.
31.9. Severability. If any term or portion of this Agreement is held to be
invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the
remaining provisions of this Agreement shall continue in full force and effect.
31.10. Controlling Law and Venue. The laws of the State of California shall
govern this Agreement and all matters relating to it and any action brought relating to this
Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange, State of California.
31.11. Equal Opportunity Employment. Licensee represents that it is an
equal opportunity employer and it shall not discriminate against any subcontractor,
employee or applicant for employment because race, religious creed, color, national
origin, ancestry, physical handicap, medical condition, marital status, sex, sexual
orientation, age or any other impermissible basis under law.
31.12. No Attorneys' Fees. In the event of any dispute or legal action arising
under this Agreement, the prevailing party shall not be entitled to attorneys' fees.
31.13. Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument.
Lighthouse Cafe, LLC Page 15
31.14. Relationship of the Parties. Nothing contained herein shall be
construed to make the parties hereto partners or joint venturers, or render any of such
parties liable for the debts or obligations of the other party hereto.
31.15. No Third -Party Rights. The parties do not intent to create rights in or
grant remedies to, any third party as a beneficiary of this License, or of any duty,
covenant, obligation or undertaking established herein.
31.16. Further Assurances. The parties agree to perform all further and
other acts reasonably necessary to effectuate the purposes and intent of this Agreement.
31.17. Authority to Sign. Each person signing this Agreement on behalf of
a party hereto represents and warrants that they are fully authorized to execute this
Agreement on behalf of the party on whose behalf such individual has signed this
Agreement, and that by signing this Agreement such party shall be bound by the terms
contained in this Agreement.
[SIGNATURES ON NEXT PAGE]
Lighthouse Cafe, LLC Page 16
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first above written.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: it 1 z3
By: (P'.; )
on C. Harp
City Attorney da.
ATTEST:
Date -
LICENSOR: CITY OF NEWPORT
BEACH, a California municipal
corporation
Date:
By:
Gr c . Leung
C Manager
LICENSEE: Lighthouse Cafe, LLC, a
California limited liability company
Date:
By: _,4 By: Signed in Counterpart
Leilani I. Brown Douglas S. Cavanaugh
City Clerk Manager
®� Date.
�- =3�
1�k
By: Signed in Counterpart
ot�N�P Tad Belshe
Manager
ATTACHMENTS: Exhibit A — Legal Description and Depiction of Licensor Property
Exhibit B — Depiction of License Area
Exhibit C — Monument Sign
Exhibit D — Insurance Requirements
Exhibit E — Labor and Materials Payment Bond
Exhibit F — Faithful Performance Bond
Lighthouse Cafe, LLC Page 17
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first above written.
APPROVED AS TO FORM: LICENSOR: CITY OF NEWPORT
CITY ATTORNEY'S OFFICE BEACH, a California municipal
corporation
Date: i-! / ll /Z3 Date:
By: Q m' )
on C. Harp
City Attorney Ufa.
ATTEST:
Date:
By..
Grace K. Leung
City Manager
LICENSEE: Lighthouse Cafe, LLC, a
California limited liability company
Date: 61�A I O ''L%
By: By:
Leilani I. Brown Douglas S. Cavanaugh
City Clerk Manager
ATTACHMENTS
Date: q-/ 7-
By: �
Tad Belshe
Manager
Exhibit A —
Legal Description and Depiction of Licensor Property
Exhibit B —
Depiction of License Area
Exhibit C —
Monument Sign
Exhibit D —
Insurance Requirements
Exhibit E —
Labor and Materials Payment Bond
Exhibit F —
Faithful Performance Bond
Lighthouse Cafe, LLC Page 17
EXHIBIT A
LEGAL DESCRIPTION AND DEPICTION OF LICENSOR PROPERTY
LAND DESCRIPTION
TRUST TERMINATION PARCELS
THREE PARCELS OF FILLED TIDE AND SUBMERGED LAND AND A PORTION OF
SWAMP AND OVERFLOWED LANDS LOCATION NUMBER 3089 PATENT TO
JAMES MCFADDEN ON MAY 16, 1892, SITUATE IN THE CITY OF NEWPORT
BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS DESCRIBED AS
FOLLOWS:
PARCEL1
BEGINNING AT THE SOUTHWEST CORNER OF LOT 16 OF BLOCK 117, SECTION
B, NEWPORT BEACH AS SHOWN ON A MAP FILED IN BOOK 4, PAGE 27 OF
MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY; THENCE ALONG THE SOUTHWESTERLY LINE OF SAID BLOCK 117,
ALSO BEING THE NORTHEASTERLY RIGHT OF WAY LINE OF BALBOA
BOULEVARD (100 FEET WIDE) SOUTH 79°22'58" EAST 178.20 FEET; THENCE
NORTH 10037'02" EAST 219.64 FEET TO THE BEGINNING OF A NONTANGENT
CURVE CONCAVE NORTHEASTERLY HAVING A RADIUS OF 52.74 FEET, A
RADIAL BEARING TO SAID CURVE BEARS SOUTH 15022'54" WEST; THENCE
NORTHWESTERLY, NORTHERLY AND NORTHEASTERLY 93.91 FEET ALONG
SAID CURVE THROUGH A CENTRAL ANGLE OF 102001'22" TO A POINT OF CUSP
WITH A NONTANGENT CURVE CONCAVE NORTHEASTERLY HAVING A RADIUS
OF 72.54 FEET, A RADIAL BEARING TO SAID CURVE 'BEARS SOUTH 00047'02"
EAST; THENCE NORTHWESTERLY 42.46 FEET ALONG SAID CURVE THROUGH
A CENTRAL ANGLE OF 33°31'53" TO THE BEGINNING OF A REVERSE CURVE
CONCAVE SOUTHWESTERLY HAVING A RADIUS OF 72.01 FEET, A RADIAL
BEARING THROUGH SAID POINT BEARS NORTH 32044'52" EAST; THENCE
SOUTHWESTERLY 54.01 FEET ALONG SAID CURVE THROUGH A CENTRAL
ANGLE OF 42058'25" TO THE BEGINNING OF A REVERSE CURVE CONCAVE
NORTHWESTERLY HAVING A RADIUS OF 81 .24 FEET, A RADIAL BEARING
THROUGH SAID POINT BEARS SOUTH 10013'33" EAST; THENCE
SOUTHWESTERL Y 38.37 FEET ALONG SAID CURVE THROUGH A CENTRAL
ANGLE OF 27003'38" TO THE EASTERLY RIGHT OF WAY LINE OF 18TH STREET
(40 FEET WIDE); THENCE ALONG SAID EASTERLY RIGHT OF WAY LINE SOUTH
10036'36" WEST 287.10 FEET TO THE POINT OF BEGINNING.
CONTAINING 1.124 ACRES, MORE OR LESS.
Lighthouse Cafe, LLC Page A-1
PARCEL2
BEGINNING AT THE INTERSECTION OF THE CENTERLINE OF 16TH STREET (40
FEET WIDE. NOW ABANDONED) AND THE NORTHERLY RIGHT OF WAY LINE OF
BALBOA BOULEVARD (100 FEET WIDE) AS SHOWN ON TRACT NUMBER 234 AS
SHOWN ON A MAP FILED IN BOOK 13, PAGES 36 AND 37 OF MISCELLANEOUS
MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY;
THENCE ALONG THENCE ALONG SAID CENTERLINE NORTH 10"38'49" EAST
70.87 FEET; THENCE NORTH 79015'11" WEST 236.74 FEET; THENCE NORTH
10°44'49" EAST 199.43 FEET TO THE BEGINNING OF A NONTANGENT CURVE
CONCAVE SOUTHEASTERLY HAVING A RADIUS OF 168.54 FEET, A RADIAL
BEARING TO SAID CURVE BEARS NORTH 15020'21" EAST; THENCE
SOUTHWESTERLY 143.27 FEET ALONG SAID CURVE THROUGH A CENTRAL
ANGLE OF 48042'13" TO THE BEGINNING OF A COMPOUND CURVE CONCAVE
SOUTHEASTERLY HAVING A RADIUS OF 373.41 FEET, A RADIAL BEARING TO
SAID POINT BEARS NORTH 33021 '52" WEST; THENCE SOUTHWESTERLY 79.01
FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 12°07'24" TO THE
BEGINNING OF A COMPOUND CURVE CONCAVE SOUTHEASTERLY HAVING A
RADIUS OF 239.54 FEET, A RADIAL BEARING TO SAID POINT BEARS NORTH
45029'16" WEST; THENCE SOUTHWESTERLY 94.65 FEET ALONG SAID CURVE
THROUGH A CENTRAL ANGLE OF 22"38'22" TO THE BEGINNING OF A
COMPOUND CURVE CONCAVE SOUTHEASTERLY HAVING A RADIUS OF 113.22
FEET, A RADIAL BEARING TO SAID POINT BEARS NORTH 68007'38" WEST;
THENCE SOUTHWESTERLY 22.09 FEET ALONG SAID CURVE THROUGH A
CENTRAL ANGLE OF 11 °10'47"; THENCE SOUTH 10041'35" WEST 54.92 FEET TO
THE NORTHERLY RIGHT OF WAY LINE OF BALBOA BOULEVARD; THENCE
ALONG SAID NORTHERLY RIGHT OF WAY LINE THE FOLLOWING TWO
COURSES:
1. SOUTH 79022'58" EAST 16.13 FEET;
2. SOUTH 79"23'02" EAST 440.04 FEET TO THE POINT OF BEGINNING.
CONTAINING 1.499 ACRES, MORE OR LESS.
Lighthouse Cafe, LLC Page A-2
PARCEL3
BEGINNING AT A POINT ON THE NORTHERLY PROLONGATION OF THE
WESTERLY RIGHT OF WAY LINE OF 15TH STREET, AS SHOWN ON A MAP OF
TRACT 234, AS PER MAP FILED IN BOOK 13, PAGES 36 AND 37 OF
MISCELLANEOUS MAPS, IN THE OFFICE OF SAID COUNTY RECORDER, SAID
POINT BEING NORTH 10040'10" EAST 160.00 FEET NORTHERLY FROM THE
NORTHEASTERLY CORNER OF LOT 4, BLOCK 115 OF SAID TRACT NO. 234;
THENCE NORTH 79020'30" WEST 146.30 FEET; THENCE SOUTH 10039'30" WEST
140.00 FEET TO A LINE PARALLEL WITH AND 20.00 FEET NORTH OF THE
NORTHERLY LINE OF SAID BLOCK 115; THENCE ALONG SAID PARALLEL LINE
SOUTH 79020'30" EAST 146.27 FEET TO SAID WESTERLY RIGHT OF WAY LINE
OF 15TH STREET; THENCE ALONG SAID WESTERLY RIGHT OF WAY LINE
NORTH 10040'10" EAST 140.00 FEET TO THE POINT OF BEGINNING.
CONTAINING 0.470 ACRES, MORE OR LESS.
END OF DESCRIPTION
Lighthouse Caf6, LLC Page A-3
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EXHIBIT B
DEPICTION OF LICENSE AREA
Lighthouse Cafe, LLC Page B-1
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MONUMENT SIGN
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EXHIBIT D
INSURANCE REQUIREMENTS
Provision of Insurance. Without limiting Licensee's indemnification of City, Licensee,
and its contractors who perform work pursuant to this Agreement, prior to
commencement of any work, and for the duration of time that they are in the course
of performing such work, provide and maintain at its own expense during the term of
this Agreement, policies of insurance of the type and amounts described below and
in a form satisfactory to City. Licensee agrees to provide insurance in accordance
with requirements set forth here. If Licensee uses existing coverage to comply and
that coverage does not meet these requirements, Licensee agrees to amend,
supplement or endorse the existing coverage.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance company
currently authorized by the Insurance Commissioner to transact business of
insurance in the State of California, with an assigned policyholders' Rating of A- (or
higher) and Financial Size Category Class VI (or larger) in accordance with the latest
edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk
Manager.
3. Coverage Requirements.
A. Workers' Compensation Insurance. Licensee shall maintain Workers'
Compensation Insurance providing statutory benefits and Employer's Liability
Insurance with limits of at least one million dollars ($1,000,000) each
employee for bodily injury by accident and each employee for bodily injury by
disease in accordance with the laws of the State of California, Section 3700
of the Labor Code. In addition, Licensee shall require each subcontractor to
similarly maintain Workers' Compensation Insurance and Employer's Liability
Insurance in accordance with California law for all of the subcontractor's
employees. The insurer issuing the Workers' Compensation insurance shall
amend its policy by endorsement to waive all rights of subrogation against
City, its elected or appointed officers, agents, officials, employees, volunteers,
and any person or entity owning or otherwise in legal control of the property
upon which Licensee performs the Project and/or Services contemplated by
this Agreement. Licensee shall submit to City, along with the certificate of
insurance, a Waiver of Subrogation endorsement in favor of City, its elected
or appointed officers, agents, officials, employees, volunteers, and any person
or entity owning or otherwise in legal control of the property upon which
Licensee performs the Project and/or Services contemplated by this
Agreement.
B. General Liability Insurance. Licensee shall maintain commercial general
liability insurance, and if necessary umbrella liability insurance, with coverage
at least as broad as provided by Insurance Services Office form CG 00 01, in
an amount not less than one million dollars ($1,000,000) per occurrence, two
Lighthouse Cafe, LLC Page D-1
million dollars ($2,000,000) general aggregate and two million dollars
($2,000,000) completed operations aggregate. The policy shall cover liability
arising from premises, operations, products -completed operations, personal
and advertising injury, and liability assumed under an insured contract
(including the tort liability of another assumed in a business contract).
C. Automobile Liability Insurance. Licensee shall maintain automobile insurance
at least as broad as Insurance Services Office form CA 00 01 covering bodily
injury and property damage for all activities of Licensee arising out of or in
connection with Work to be performed under this Agreement, including
coverage for any owned, hired, non -owned or rented vehicles, in an amount
not less than one million dollars ($1,000,000) combined single limit for each
accident.
4. Other Insurance Requirements. The policies are to contain, or be endorsed to
contain, the following provisions:
A. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation against
City, its elected or appointed officers, agents, officials, employees, volunteers,
and any person or entity owning or otherwise in legal control of the property
upon which Licensee performs the Project and/or Services contemplated by
this Agreement or shall specifically allow Licensee or others providing
insurance evidence in compliance with these requirements to waive their right
of recovery prior to a loss. Licensee hereby waives its own right of recovery
against City, and shall require similar written express waivers and insurance
clauses from each of its subcontractors.
B. Additional Insured Status All liability policies including general liability,
products and completed operations, excess liability, pollution liability, and
automobile liability, if required, shall provide or be endorsed to provide that
City, its elected or appointed officers, agents, officials, employees, volunteers,
and any person or entity owning or otherwise in legal control of the property
upon which Licensee performs the Project and/or Services contemplated by
this Agreement shall be included as additional insureds under such policies.
C. Primary and Non Contributory. Licensee's insurance coverage shall be
primary insurance and/or the primary source of recovery with respect to City,
its elected or appointed officers, agents, officials, employees, volunteers, and
any person or entity owning or otherwise in legal control of the property upon
which Licensee performs the Project and/or Services contemplated by this
Agreement. Any insurance or self-insurance maintained by City shall be
excess of Licensee's insurance and shall not contribute with it.
D. Notice of Cancellation. All policies shall provide City with thirty (30) calendar
days notice of cancellation or nonrenewal of coverage (except for
nonpayment for which ten (10) calendar days notice is required) for each
Lighthouse Cafe, LLC Page D-2
required coverage except Builders Risk Insurance, which shall contain an
endorsement with said required notices.
5. Additional Agreements Between the Parties. The parties hereby agree to the
following:
A. In the event City determines that (i) the Tenant's activities on the Property
creates an increased or decreased risk of loss to the City, (ii) greater
insurance coverage is required due to the passage of time, or (iii) changes in
the industry require different coverage be obtained, Tenant agrees that the
minimum limits of any insurance policy required to be obtained by Tenant or
Tenant's consultants, contractors or subcontractors, may be changed
accordingly upon receipt of written notice from City. With respect to changes
in insurance requirements that are available from Tenant's then -existing
insurance carrier, Tenant shall deposit certificates evidencing acceptable
insurance policies with City incorporating such changes within thirty (30)
calendar days of receipt of such notice. With respect to changes in insurance
requirements that are not available from Tenant's then- existing insurance
carrier, Tenant shall deposit certificates evidencing acceptable insurance
policies with City, incorporating such changes, within ninety (90) calendar
days of receipt of such notice.
B. Any deductibles applicable to the commercial property or insurance
purchased in compliance with the requirements of this section shall be
approved by City.
C. Evidence of Insurance. Licensee shall provide certificates of insurance to City
as evidence of the insurance coverage required herein, along with a waiver of
subrogation endorsement for workers' compensation and other
endorsements as specified herein for each coverage. All of the executed
documents referenced in this Agreement must be returned to City within ten
(10) regular City business days after the date on the "Notification of Award".
Insurance certificates and endorsements must be approved by City's Risk
Manager prior to commencement of performance. Current certification of
insurance shall be kept on file with City at all times during the term of this
Agreement. The certificates and endorsements for each insurance policy
shall be signed by a person authorized by that insurer to bind coverage on its
behalf. At least fifteen (15) days prior to the expiration of any such policy,
evidence of insurance showing that such insurance coverage has been
renewed or extended shall be filed with the City. If such coverage is cancelled
or reduced, Licensee shall, within ten (10) days after receipt of written notice
of such cancellation or reduction of coverage, file with the City evidence of
insurance showing that the required insurance has been reinstated or has
been provided through another insurance company or companies. City
reserves the right to require complete, certified copies of all required insurance
policies, at any time.
Lighthouse Cafe, LLC Page D-3
D. City's Right to Revise Requirements. The City reserves the right at any time
during the term of the Agreement to change the amounts and types of
insurance required by giving Licensee ninety (90) calendar days advance
written notice of such change. If such change results in substantial additional
cost to Licensee, City and Licensee may renegotiate Licensee's
compensation.
E. Right to Review Subcontracts. Licensee agrees that upon request, all
agreements with subcontractors or others with whom Licensee enters into
contracts with on behalf of City will be submitted to City for review. Failure of
City to request copies of such agreements will not impose any liability on City,
or its employees. Licensee shall require and verify that all subcontractors
maintain insurance meeting all the requirements stated herein, and Licensee
shall ensure that City is an additional insured on insurance required from
subcontractors. For CGL coverage, subcontractors shall provide coverage
with a format at least as broad as CG 20 38 04 13.
F. Enforcement of Agreement Provisions. Licensee acknowledges and agrees
that any actual or alleged failure on the part of City to inform Licensee of non-
compliance with any requirement imposes no additional obligations on City
nor does it waive any rights hereunder.
G. Requirements not Limiting. Requirements of specific coverage features or
limits contained in this Exhibit A are not intended as a limitation on coverage,
limits or other requirements, or a waiver of any coverage normally provided
by any insurance. Specific reference to a given coverage feature is for
purposes of clarification only as it pertains to a given issue and is not intended
by any party or insured to be all inclusive, or to the exclusion of other
coverage, or a waiver of any type. If the Licensee maintains higher limits than
the minimums shown above, the City requires and shall be entitled to
coverage for higher limits maintained by the Licensee. Any available
proceeds in excess of specified minimum limits of insurance and coverage
shall be available to the City.
H. Self -Insured Retentions. Licensee agrees not to self -insure or to use any self -
insured retentions on any portion of the insurance required herein and further
agrees that it will not allow any indemnifying party to self -insure its obligations
to City. If Licensee's existing coverage includes a self -insured retention, the
self -insured retention must be declared to City. City may review options with
Licensee, which may include reduction or elimination of the self -insured
retention, substitution of other coverage, or other solutions. Licensee agrees
to be responsible for payment of any deductibles on their policies.
City Remedies for Non Compliance. If Licensee or any subcontractor fails to
provide and maintain insurance as required herein, then City shall have the
right but not the obligation, to purchase such insurance, to terminate this
Agreement, or to suspend Licensee's right to proceed until proper evidence
Lighthouse Cafe, LLC Page D-4
of insurance is provided. Any amounts paid by City shall, at City's sole option,
be deducted from amounts payable to Licensee or reimbursed by Licensee
upon demand.
J. Timely Notice of Claims. Licensee shall give City prompt and timely notice of
claims made or suits instituted that arise out of or result from Licensee's
performance under this Agreement, and that involve or may involve coverage
under any of the required liability policies. City assumes no obligation or
liability by such notice, but has the right (but not the duty) to monitor the
handling of any such claim or claims if they are likely to involve City.
K. Coverage not Limited. All insurance coverage and limits provided by Licensee
and available or applicable to this Agreement are intended to apply to the full
extent of the policies. Nothing contained in this Agreement or any other
agreement relating to City or its operations limits the application of such
insurance coverage.
L. Coverage Renewal. Licensee will renew the coverage required here annually
as long as Licensee continues to provide any Work under this or any other
Agreement or agreement with City. Licensee shall provide proof that policies
of insurance required herein expiring during the term of this Agreement have
been renewed or replaced with other policies providing at least the same
coverage. Proof that such coverage has been ordered shall be submitted
prior to expiration. A coverage binder or letter from Licensee's insurance
agent to this effect is acceptable. A certificate of insurance and/or additional
insured endorsement as required in these specifications applicable to the
renewing or new coverage must be provided to City with five (5) calendar days
of the expiration of the coverages.
M. Maintenance of General Liability Coverage. Licensee agrees to maintain
commercial general liability coverage for a period of ten (10) years after
completion of the Project or to obtain coverage for completed operations
liability for an equivalent period.
Lighthouse Cafe, LLC Page D-5
EXHIBIT E
CITY OF NEWPORT BEACH
BOND NO.
LABOR AND MATERIALS PAYMENT BOND
WHEREAS, the City of Newport Beach, State of California, has entered into with
LIGHTHOUSE CAFE, LLC, hereinafter designated as the "Principal," a license agreement
for construction of a monument sign at Marina Park, in the City of Newport Beach, in strict
conformity with the Agreement on file with the office of the City Clerk of the City of Newport
Beach, which is incorporated herein by this reference.
WHEREAS, Principal has executed or is about to execute the Agreement and the
terms thereof require the furnishing of a bond, providing that if Principal or any of
Principal's subcontractors, shall fail to pay for any materials, provisions, or other supplies
used in, upon, for, or about the performance of the Work agreed to be done, or for any
work or labor done thereon of any kind, the Surety on this bond will pay the same to the
extent hereinafter set forth.
NOW, THEREFORE, We the undersigned Principal, and,
duly authorized to transact business under the laws of the State of California, as Surety,
(referred to herein as "Surety") are held and firmly bound unto the City of Newport Beach,
in the sum of Dollars ( ),
lawful money of the United States of America, said sum being equal to 100% of the total
amount payable for completion of the Monument Sign, and being over Twenty Five
Thousand Dollars and 00/100 ($25,000.00), payable by the City of Newport Beach under
the terms of the Agreement; for which payment well and truly to be made, we bind
ourselves, our heirs, executors and administrators, successors, or assigns, jointly and
severally, firmly by these present.
THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal or the
Principal's subcontractors, fail to pay for any materials, provisions, or other supplies,
implements or machinery used in, upon, for, or about the performance of the Work
contracted to be done, or for any other work or labor thereon of any kind, or for amounts
due under the Unemployment Insurance Code with respect to such work or labor, or for
any amounts required to be deducted, withheld and paid over to the Employment
Development Department from the wages of employees of the Principal and
subcontractors pursuant to Section 13020 of the Unemployment Insurance Code with
respect to such work and labor, then the Surety will pay for the same, in an amount not
exceeding the sum specified in this Bond, and also, in case suit is brought to enforce the
obligations of this Bond, a reasonable attorneys' fee, to be fixed by the Court as required
by the provisions of Section 9554 of the Civil Code of the State of California.
The Bond shall inure to the benefit of any and all persons, companies, and
corporations entitled to file claims under Section 9100 of the California Civil Code so as
to give a right of action to them or their assigns in any suit brought upon this Bond, as
required by and in accordance with the provisions of Sections 9500 et seq. of the Civil
Code of the State of California.
And Surety, for value received, hereby stipulates and agrees that no change,
extension of time, alterations or additions to the terms of the Agreement or to the Work to
be performed thereunder shall in any wise affect its obligations on this Bond, and it does
Lighthouse Cafe, LLC Page E-1
hereby waive notice of any such change, extension of time, alterations or additions to the
terms of the Agreement or to the Work or to the specifications.
In the event that any principal above named executed this Bond as an individual,
it is agreed that the death of any such principal shall not exonerate the Surety from its
obligations under this Bond.
IN WITNESS WHEREOF, this instrument has been duly executed by the above
named Principal and Surety, on the day of , 20
Name of Contractor (Principal)
Name of Surety
Address of Surety
Telephone
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:
Aaron C. Harp
City Attorney
Authorized Signature/Title
Authorized Agent Signature
Print Name and Title
NOTARY ACKNOWLEDGMENTS OF
CONTRACTOR AND SURETY MUST BE ATTACHED
Lighthouse Cafe, LLC Page E-2
ACKNOWLEDGMENT
A notary public or other officer completing this certificate
verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of } ss.
On 20 before me, Notary
Public, personally appeared who proved to
me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
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.
(seal)
State of California
County of } ss.
On 20 before me, Notary
Public, personally appeared proved to me on
the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature (seal)
Lighthouse Cafe, LLC Page E-3
EXHIBIT F
CITY OF NEWPORT BEACH
BOND NO.
FAITHFUL PERFORMANCE BOND
The premium charges on this Bond is $ , being at the
rate of $ thousand of the Agreement price.
WHEREAS, the City of Newport Beach, State of California, has entered into with
LIGHTHOUSE CAFE, LLC, hereinafter designated as the "Principal," an agreement for
the construction of a monument sign at Marina Park, in the City of Newport Beach, in
strict conformity with the Agreement on file with the office of the City Clerk of the City of
Newport Beach, which is incorporated herein by this reference.
WHEREAS, Principal has executed or is about to execute the Agreement and the
terms thereof require the furnishing of a Bond for the faithful performance of the
Agreement.
NOW, THEREFORE, we, the Principal, and
duly authorized to
transact business under the laws of the State of California as Surety (hereinafter
"Surety"), are held and firmly bound unto the City of Newport Beach, in the sum of
( ) lawful
money of the United States of America, said sum being equal to 100% of the total amount
payable for completion of the monument sign, and over Twenty Five Thousand Dollars
and 00/100 ($25,000.00), to be paid to the City of Newport Beach, its successors, and
assigns; for which payment well and truly to be made, we bind ourselves, our heirs,
executors and administrators, successors, or assigns, jointly and severally, firmly by
these present.
THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal, or the
Principal's heirs, executors, administrators, successors, or assigns, fail to abide by, and
well and truly keep and perform any or all the Work, covenants, conditions, and
agreements in the Agreement and any alteration thereof made as therein provided on its
part, to be kept and performed at the time and in the manner therein specified, and in all
respects according to its true intent and meaning, or fails to indemnify, defend, and save
harmless the City of Newport Beach, its officers, employees and agents, as therein
stipulated, then, Surety will faithfully perform the same, in an amount not exceeding the
sum specified in this Bond; otherwise this obligation shall become null and void.
As a part of the obligation secured hereby, and in addition to the face amount
specified in this Performance Bond, there shall be included costs and reasonable
expenses and fees, including reasonable attorneys fees, incurred by City, only in the
event City is required to bring an action in law or equity against Surety to enforce the
obligations of this Bond.
Surety, for value received, stipulates and agrees that no change, extension of time,
alterations or additions to the terms of the Agreement or to the Work to be performed
thereunder shall in any way affect its obligations on this Bond, and it does hereby waive
Lighthouse Cafe, LLC Page F-1
notice of any such change, extension of time, alterations or additions of the Agreement
or to the Work or to the specifications.
This Faithful Performance Bond shall be extended and maintained by the Principal
in full force and effect for one (1) year following the date of formal acceptance of the
Project by City.
In the event that the Principal executed this bond as an individual, it is agreed that
the death of any such Principal shall not exonerate the Surety from its obligations under
this Bond.
IN WITNESS WHEREOF, this instrument has been duly executed by the Principal
and Surety above named, on the day of , 20
Name of Contractor (Principal)
Name of Surety
Address of Surety
Telephone
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:
in
Aaron C. Harp
City Attorney
Authorized Signature/Title
Authorized Agent Signature
Print Name and Title
NOTARY ACKNOWLEDGMENTS OF
CONTRACTOR AND SURETY MUST BE ATTACHED
Lighthouse Cafe, LLC Page F-2
ACKNOWLEDGMENT
A notary public or other officer completing this certificate
verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of } ss.
On 20 before me, Notary
Public, personally appeared who proved to
me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
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.
(seal)
State of California
County of } ss.
On 20 before me, Notary
Public, personally appeared proved to me on
the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature (seal)
Lighthouse Cafe, LLC Page F-3
q 2 189 P+ 29 ® C
Q Search -t& Insured
Insured Name
Name:
Lighthouse Cafe, LLC (FV00000990)
Q
Account Number:
Address:
(2751) (FV00000081)
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Status:
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Lighthouse Cafe, LLC
FV00000990
32565 Golden Latern, Suite B
1028, Dana Point, CA, USA,
92629
Referral
Compliant with Waived
Deficiencies.
Insured
Business Unit(s) Print Insured Info
Account Information
Account Number:
Risk Type:
Do Not Call:
Address Information
Mailing Address
Insured:
Address 1:
Address 2:
City:
State:
FV00000990
Professional
Services
Agreement
Address Updated:
Physical Address
Lighthouse Lighthouse Cafe, LLC
Cafe, LLC
32565 1600 W. Balboa Boulevard
Golden
Latern, Suite
B 1028
Dana Point Newport Beach
CA CA
Country: USA USA
Contract Information
Contract Number: C-6075
Contract Start Date: Contract End Date:
Contract Effective Date: Contract Expiration Date:
Description of Services: Lease Safety Form II:
Agreement
Contact Information
Contact Name: Joan Misc:
Sormanti
Phone Number: 3239547055 Alt Phone Number:
Fax Number:
E-Mail Address: Joan_Sormanti@ajg.com
Approval Date:
Rush: No
Contract on File: Yes
Certificate Received: Yes
Indemnification Agreement: No
Tax Id:
This Account created by f26 on 04/19/2023.
Lighthouse Cafe
32565 Golden Lantern Suite B #1028
Dana Point, CA 92629
PHONE
949 302-5288
ATTENTION
Mr. Tad Belshe
•0;
Proposal /Estimate
DATE: February 14, 2023
JOB ADDRESS
Lighthouse Cafe
1600 W Balboa Blvd.
Newport Beach, CA 92663
or
theIshe@lighthousenb.com
21-07-8369
Manufacture One (1) 7'-1'/2" overall height by 6'-6" overall length custom fabricated $7,373.82
non illuminated double face monument sign.
Prevailing wages
Digginghole..........................................................
Setpipe.............................................................
Concrete.............................................................
Sign installation ........................................................
$6,880.25
Special Conditions
otes omments:
Total: $14,254.07
Sales Tax: $1,354.14
Subtotal: $15,608.21
Grand Total: $15,608.21
Customer Approval v-�r �� Date: X 13-,'I-Z-5
Title: X plklp
Delivery & Installation
Approximate number of working days after Order, Deposit & Permits are obtained:
ONCE ESTIMATE HAS BEEN APPROVED, CUSTOMER WILL RECEIVED ORIGINAL PURCHASE ORDER
REVISED PURCHASE ORDER
DATE: February 1, 2023
•
- - - CALIFORNIA STATE LICENSED SIGN CONTRACTOR C45-351019
701 Lakme Avenue I Wilmington, California 90744 / Tel: (310) 549-4661 I Fax: 310-549-2482
Lighthouse Cafe
32565 Golden Lantern Suite B #1028
Dana Point, CA 92629
PHONE
949 302-5288
ATTENTION
Mr. Tad Belshe
DESCRIPTION OF WORK TO BE PERFORMED
JOB ADDRESS
Lighthouse Cafe
1600 W Balboa Blvd.
Newport Beach, CA 92663
HONE
tbelshe@lighthousenb.com
('FL I. PHONE APPROVED DESIGN NUMBERS
949 308-5288 21-07-8369
NEW NON -ILLUMINATED MONUMENT SIGN
Prevailing wages: Manufacture and install the following:
One (1) 7'-11/2" overall height by 6-6" overall length custom fabricated non illuminated double face monument sign with two
cabinet sections as follows:
Top sign cabinet 4'-0" x 6-6" with clear acrylic faces with 2nd surface applied translucent vinyl copy, 11/2" reveals and painted
metallic silver Mathews paint satin finish.
Bottom sign cabinet 2'-0" x 6'-6" with wood blank porcelain tile "Soft Chestnut" around the cabinet, and s/4" flat cut out city logo and
letters reading "MARINA PARK" painted Mathews paint metallic silver satin finish and city logo to have digital printed first surface
with 1'-0" aluminum base with painted Mathews paint metallic silver satin finish.
A per customer approved sign drawing
SPECIFICATIONS
1. Sign cabinets shall be custom fabricated with a minimum of 11/2" x 11/2" x 3/16" angle iron internal frame supports or
as required by civil engineering.
2. All dimensions are close approximations and may vary due to existing conditions at the job site.
3. SPESCO shall not be responsible for damage to plants, landscaping, irrigation systems and/or obstacle caused by hole
digging/auger and/or installation equipment. Customer to be responsible for earth removal
4. Buyer shall have landscaped area cleared out prior to hole excavation.
5. Footing installation is assumed to be in normal sandy clay soil with no underground obstructions. Should other conditions be discovered,
the buyer, if available, will be notified, in any event, the buyer will be billed for the extra charges at actual cost. Should soil report or 3rd party
inspections be required, cost will be adjusted accordingly.
6. Any special insurance requirements/endorsements require additional premium and is not included in cost.
7. DESIGN REVIEW FEES DUE UPON SUBMITTAL. ENGINEERING COST, PERMIT COST, PERMIT SERVICE FEES AT A RATE OF $85.00 PER HOUR
AND 3RD PARTY INSPECTIONS (IF REQUIRED) ARE NOT INCLUDED IN THIS PURCHASE ORDER AND WILL BE BILLED AFTER PERMIT HAS BEEN
OBTAINED, AS PER SECTION "E" ON THIS CONTRACT.
SIGN PERMITS AND PERMIT SERVICE FEES ARE NOT INCLUDED IN THIS
CONTRACT UNLESS OTHERWISE NOTED THESE FEES WILL BE BILLED AT
DEPOSIT
$7,804.10
ACTUAL COST UPON OBTAINING THE PERMITS.
BALANCE DUE UPON INSTALLATION
$7,804.10
SELLER RETAINS TITLE TO THE ABOVE -DESCRIBED ADVERTISING DISPLAY
UNTIL BUYER HAS PERFORMED ALL OF BUYER'S OBLIGATIONS UNDER THIS
AGREEMENTAND THE PURCHASE PRICE OF THE ADVERTISING DISPLAY HAS
TOTAL
$15,608.21
BEEN FULLY PAID.
REPRESENTATIVE
Kevin McConnell
ACCEPTED (DATE)
AT WILMINGTON, CALIF.
BY (EXECUTIVE OFFICER)
TITLE
NOTICE
DELIVERY & INSTALLATION:
APPROXIMATE NUMBER OF WORKING DAYS AFTER PERMITS
HAVE BEEN OBTAINED 25-30 working days
THIS PURCHASE ORDER IS SUBJECT TO THE TERMS AND
CONDITIONS ON REVERSE SIDE.
INDIVIDUAL/ PARTNERSHIP/ CORPORATION
Qght Ouse Cafe
BY _
TITLE �� Ct [1 i1 V r I V11�tiU11.
The undersigned guarantees rompt payment, on or before the due date, of
all sums to become due under the foregoing agreement, waives notice of
default by the principal obliger, and waives any requirements that the firm
to whom this guaranty is given, or its successors or assigns, seek recovery
from the principal, as a condition concurrent or precedent to action on this
guaranty, All default and litigation provisions of the foregoing agreement
apply to this guaranty, and the undersigned hereby waives notice of and
agrees to, any extensions of time of payment which may hereafter e
granted the principal. Date: - L r Z
Wilmington, Calif 1a,-- i
GUARANTOR
2 b iNAI UKt, KtIjUIKtU
RM
A. SELLER: Agrees to sell and buyer agrees to purchase, subject to the terms and conditions hereinafter set forth, and Advertising Display hereinafter called the "Display" inconformity with the
specifications hereinafter set forth and with the approved designs, if any. (This Display shall at all times be deemed personal property, and shall not by reason of attachment or connection to
any realty, become or be deemed a fixture or appurtenance to such realty). Buyer shall obtain the necessary permission from owner of the premises, which is requisite for the installation of
the Display, as personal property (in writing). Buyer also agrees to secure all permission from owner or landlord of the premises for which installation of Display or work to be done. This shall
be in writing to seller at the time of agreement. This is Buyer's responsibility! Unless otherwise noted, SPESCO normal installation is within 50 land miles from Wilmington. Over 50 miles is
considered "Out of town" install. SPESCO installation HOURS ARE BETWEEN 8 a.m. - 5 p.m. Monday - Friday, holidays not included. Any other time or day requested will be overtime basis
and will be billed at extra cost
B. WARRANTY: Seller warrants the Display sold hereunder for one (1) year. Incandescent lamps are excluded from this warranty. This shall be the limit of Sellers liability for any breach of
warranty. Buyer must notify Seller by registered or certified mail, return receipt request, postage prepaid, of any breach of warranty, within 30 days after discovery thereof, but not laterthat the
expiration of the warranty period, otherwise, such claims shall be deemed waived. Also if such display is serviced, repaired, opened for any reason by someone other than San Pedro Sign
Company or assigned agent, WARRANTEE IS VOID. SELLER SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO
LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL SELLER BE LIABLE FOR INCIDENTAL OR
CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES, INCLUDING LOSS OF PROFIT.
C. DAMAGE: Should any loss damage or injury result to said Display, from any cause whatsoever, while in possession of Buyer or his agents, such loss, damage, or injury shall not relieve the
Buyer from the obligation to pay for the same according to the terms of this contract.
D. TITLE: Tale to Display remains with Seller until full payment is received, any installation prior to complete payment, being solely for the convenience of Buyer and Seller in testing the
equipment Should Buyer fail to pay upon installation/completion, the Seller shall have the right to either (1) retake said Display and cause the same to be sold in a reasonable commercial
manner, and if the amount realized from such a sale together with any payment or payments therefore received from buyer shall not total the entire purchase price hereunder which shall
include expenses for retaking possession and selling said Display, Buyer agrees to pay any such deficiency to seller or demand or (2) without retaking said display, to bring suit for the balance
due under this contract. In either case, buyer agrees to pay interest in any amounts so due and owing at the maximum rate allowed by the law (10 % minimum) and reasonable attorney fees
and court costs in the event that legal action is commenced.
E. PERMITS, LICENSES, FEES AND TAXES: If installation is part of this Agreement, Buyer shall advise Seller of any governmental easements, setbacks or restrictions affecting the location of
sign(s). Buyer shall be responsible for securing and maintaining in force all necessary permits from the owner of the premises upon which Display is to be installed, for all other private
permissions necessary for the installation, use and existence of the Display, and any cost for, variance permits due to restrictions by governmental agencies. Unless otherwise specified buyer
shall pay as an extra cost on 3rd party inspections/special inspections, design review, engineering (if required) and permits and permit service fees.
F. AUTHORITY OF AGENT: It is further understood and agreed that this contract is not subject to countermand, and cancels all previous understandings either written or verbal, and does not
become binding upon the Seller until approved byt rye executive officer ofthe Sel e� —
G. SERVICE WIRING: COST OF ELECTRICITY: REINFORCEMENT OF BUILDING: PHYSICAL CONDITIONS: Buyer shall bring feed wire of suitable capacity and approved type to the
location of Display. Unless otherwise specified, sign -operating voltage is 120 volts single-phase common house current Buyer shall pay for all electric energy used by Display and shall be
responsible for the supply thereof, unless specifically stated in writing to the contrary. Buyer shall provide all necessary reinforcements to the building on which Display is installed. Buyer shall
pay for cost of relocating power lines, for securing all building access to location of Display, or other obstacles, to comply with law of Federal, State, or Municipal agencies, the price fixed
herein is base on the assumption that installation will be in normal soil. In the event adverse soil conditions or underground obstructions are encountered, the parties agree to adjust the extra
installation cost based on Seller's additional cost.
H. FURTHER REMEDIES OF SELLER: Seller may exercise any and all of its rights and remedies under the Califomia Commercial Code. In addition, Seller may enter on Buyers premises to
take possession of, assemble and collect the display or render it unusable. All rights and remedies of Seller shall be cumulative and may be exercised successively or concurrently without
impairing Seller's security interest in the Display. Seller may charge Buyer for all expenses to render Display useable if action to render Display useable is instituted under terms of this
paragraph.
I. MISCELLANEOUS PROVISIONS: 1) Timely payment to Seller by Buyer is of the essence of this agreement 2) No waiver by either party hereto the non-performance or breach of any term,
provision or agreement hereof, or of any default hereunder, shall be constructed to be or operated as a waiver of any subsequent non-performance or breach. 3) This agreement shall be
constructed in accordance with, and governed by, the laws of the State of California. 4) In the event this order relates only to labor. equipment and incidental materials required by connection
with the removal, installation, modification, repair, and/or storage of an advertising display(s), provisions in paragraphs A and B hereof that are enclosed in parentheses shall be deemed
deleted and the "sale' and "purchase" shall relate to the furnishing by 'Seller" of the items described herein. This agreement shall be deemed to have been made at the time and place when
and where executed by Seller and shall constitute the entire agreement between the Buyer and Seller. No waivers, modifications, or amendments shall be valid unless executed in writing by
both parties, and there are no other warranties, expressed or implied, with respect to the equipment and services supplied to Buyer by Seller, other than those expressly contained herein. 5)
All of the terms provisions and agreements hereof shall be binding upon the successors, assigns, and personal representatives of the respective parties hereto; provided, however this
agreement cannot be assigned by Buyer without the Sellers prior written consent. 6) It is hereby declared, agreed and understood that there are no prior oral or written negotiations,
understandings, representations or agreements between Seller and Buyer not herein expressed.
J. FINAL INSPECTIONS: Under California state law, It is the obligation of the contractor that has performed the installation to obtain final inspection from the authority having jurisdiction. Should
reasons beyond control of SPESCO for final inspections is not obtained and a special return trip is required, Buyer agrees to pay additional labor costs required to return to job site to obtain
final inspection from authority having jurisdiction.
K. CONTRACTOR: Contractors are required by law to be licensed and regulated by the Contractors State Licensing Board, 1020'N" Street., Sacramento, CA. 95814. San Pedro Electric Sign
Co., holds California Contractors License number C-45, C-10 351019
L. NOTICE:'Underthe Mechanics Lien Law, any contractor, subcontractor, laborer or other person who helps to improve your property but not paid for his work or supplies, has a right to enforce
a claim against your property. This means that after a court hearing could be sold by a court officer and the proceed of the sale used to satisfy the indebtedness. This can happen even if you
own contract in full, if the subcontractor, laborer, or supplier remains unpaid'.
FINAL CONTRACT AMOUNTS THAT
EXCEED THE ORIGINAL CONTRACT
AMOUNT WILL BE CHARGED ADDITIONAL
PREMIUM AND FEE. INCLUDE THESE
CHARGES IN YOUR CHANGE ORDERS.
Exhibit "I"
CITY OF NEWPORT BEACH
BOND NO. 0848057
FAITHFUL PERFORMANCE BOND
The premium charges on this Bond is $ 3,375.00 , being at the
rate of $ 25.00 thousand of the Contract price.
WHEREAS, Tenant LIGHTHOUSE CAFE, LLC, as Tenant of the City of Newport
Beach, State of California, has awarded to Wilson Construction
[Contractor] hereinafter designated as the "Principal," a contract for the work necessary
for the completion of this contract consists of:
Lighthouse Cafe Renovations at 16020 West Balboa Blvd, Newport Beach, CA 92663
It is CONTRACTOR's responsibility to verify all controlling field dimensions before
ordering or fabricating any material in the City of Newport Beach, in strict conformity
with the Contract on file with Tenant/LIGHTHOUSE CAFE, LLC and the office of the
City Clerk of the City of Newport Beach, which is incorporated herein by this reference.
WHEREAS, Principal has executed or is about to execute the Contract and the
terms thereof require the furnishing of a Bond for the faithful performance of the
Contract.
NOW, THEREFORE, we, the Principal, and Harco National Insurance Company
, duly authorized to
"Surety"), are held and firmly bound unto the City of Newport Beach, in the sum of
One Hundred Thirty Five Thousand Dollars and 00 /100 ($135,000.00
lawful money of the United States of America, said sum being equal to 100% of the
estimated amount of the Contract, to be paid to the City of Newport Beach, its
successors, and assigns; for which payment well and truly to be made, we bind
ourselves, our heirs, executors and administrators, successors, or assigns, jointly and
severally, firmly by these present.
THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal, or the
Principal's heirs, executors, administrators, successors, or assigns, fail to abide by, and
well and truly keep and perform any or all the Work, covenants, conditions, and
agreements in the Contract and any alteration thereof made as therein provided on its
part, to be kept and performed at the time and in the manner therein specified, and in all
respects according to its true intent and meaning, or fails to indemnify, defend, and save
harmless Tenant /LIGHTHOUSE CAFE, LLC, and the City of Newport Beach, its
officers, employees and agents, as therein stipulated, then, Surety will faithfully perform
the same, in an amount not exceeding the sum specified in this Bond; otherwise this
obligation shall become null and void.
Lighthouse Cafe Page -1
As a part of the obligation secured hereby, and in addition to the face amount
specified in this Performance Bond, there shall be included costs and reasonable
expenses and fees, including reasonable attorneys fees, incurred by City, only in the
event City is required to bring an action in law or equity against Surety to enforce the
obligations of this Bond.
Surety, for value received, stipulates and agrees that no change, extension of
time, alterations or additions to the terms of the Contract or to the Work to be performed
thereunder shall in any way affect its obligations on this Bond, and it does hereby waive
notice of any such change, extension of time, alterations or additions of the Contract or
to the Work or to the specifications.
This Faithful Performance Bond shall be extended and maintained by the
Principal in full force and effect for one (1) year following the date of formal acceptance
of the Project by Tenant and City.
In the event that the Principal executed this bond as an individual, it is agreed
that the death of any such Principal shall not exonerate the Surety from its obligations
under this Bond.
IN WITNESS WHEREOF, this instrument has been duly executed by the
Principal and Surety above named, on the 11th day of January ,20 24 .
Wilson Construction
Name of Contractor (Principal)
Harco National Insurance Company
Name of Surety
702 Oberlin Rd., Raleigh, NC 27605
Address of Surety
(919)833-1600
Telephone
Authorized Signature/Title
Michael Wilson, President
Authorized ent re
Jeremy Crawford, Attorney -In -Fact
Print Name and Title
NOTARY ACKNOWLEDGMENTS OF
CONTRACTOR AND SURETY MUST BE ATTACHED
Lighthouse Cafe Page 1-2
FINAL. CONTRACT AMOUNTS THAT
EXCEED THE ORIGINAL CONTRACT
AMOUNT WILL HE CHARGED ADDITIONAL
PREMIUM AND PEE. INCLUDETHF.SE CHARGES IN YOUR CHANGE ORDERS. Exhibit "J"
CITY OF NEWPORT BEACH
BOND NO. 0848057
LABOR AND MATERIALS PAYMENT BOND
WHEREAS, Tenant /LIGHTHOUSE CAFE, LLC, as Tenant of the City of
Newport Beach, State of California, has awarded to Wilson Construction [Contractor]
hereinafter designated as the "Principal," a contract for the work necessary for the
completion of this contract consists of:
Lighthouse Cafe Renovations at 16020 West Balboa Blvd Newport Beach CA 92663
It is CONTRACTOR's responsibility to verify all controlling field dimensions before
ordering or fabricating any material in the City of Newport Beach, in strict conformity
with the Contract on file with Tenant /LIGHTHOUSE CAFE, LLC and the office of the
City Clerk of the City of Newport Beach, which is incorporated herein by this reference.
WHEREAS, Principal has executed or is about to execute the Contract and the
terms thereof require the furnishing of a bond, providing that if Principal or any of
Principal's subcontractors, shall fail to pay for any materials, provisions, or other
supplies used in, upon, for, or about the performance of the Work agreed to be done, or
for any work or labor done thereon of any kind, the Surety on this bond will pay the
same to the extent hereinafter set forth.
NOW, THEREFORE, We the undersigned Principal, and,
Harco National Insurance Company duly authorized to
transact business under the laws of the State of California, as Surety, (referred to herein
as "Surety") are held and firmly bound unto the City of Newport Beach, in the sum of
One Hundred Thirty Five Thousand Dollars and 00 /100 135,000.00 ) lawful
money of the United States of America, said sum being equal to 100% of the estimated
amount payable by the Tenant /LIGHTHOUSE CAFE, LLC, of the City of Newport
Beach under the terms of the Contract; for which payment well and truly to be made, we
bind ourselves, our heirs, executors and administrators, successors, or assigns, jointly
and severally, firmly by these present.
THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal or the
Principal's subcontractors, fail to pay for any materials, provisions, or other supplies,
implements or machinery used in, upon, for, or about the performance of the Work
contracted to be done, or for any other work or labor thereon of any kind, or for amounts
due under the Unemployment Insurance Code with respect to such work or labor, or for
any amounts required to be deducted, withheld and paid over to the Employment
Development Department from the wages of employees of the Principal and
subcontractors pursuant to Section 13020 of the Unemployment Insurance Code with
respect to such work and labor, then the Surety will pay for the same, in an amount not
exceeding the sum specified in this Bond, and also, in case suit is brought to enforce
Lighthouse Cafe Page J-1
the obligations of this Bond, a reasonable attorneys' fee, to be fixed by the Court as
required by the provisions of Section 9554 of the Civil Code of the State of California.
The Bond shall inure to the benefit of any and all persons, companies, and
corporations entitled to file claims under Section 9100 of the California Civil Code so as
to give a right of action to them or their assigns in any suit brought upon this Bond, as
required by and in accordance with the provisions of Sections 9500 et seq. of the Civil
Code of the State of California.
And Surety, for value received, hereby stipulates and agrees that no change,
extension of time, alterations or additions to the terms of the Contract or to the Work to
be performed thereunder shall in any wise affect its obligations on this Bond, and it does
hereby waive notice of any such change, extension of time, alterations or additions to
the terms of the Contract or to the Work or to the specifications.
In the event that any principal above named executed this Bond as an individual,
it is agreed that the death of any such principal shall not exonerate the Surety from its
obligations under this Bond.
IN WITNESS WHEREOF, this instrument has been duly executed by the above
named Principal and Surety, on the Ilth day of January 20 24
Wilson Construction
Name of Contractor (Principal) Authorized Signature/Title
Michael Wilson, President ,
Harco National Insurance Company
Name of Surety Authorize -Agent SITTature 1 ;
702 Oberlin Rd„ Raleigh, NC 27605 Jeremy Crawford, Attorney -In -Fact
Address of Surety Print Name and Title
(919)833-1600
Telephone
NOTARY ACKNOWLEDGMENTS OF CONTRACTOR
AND SURETY MUST BE ATTACHED
Lighthouse Cafe Page J-2
POWER OF ATTORNEY Bond# 0848057
HARCO NATIONAL INSURANCE COMPANY
INTERNATIONAL FIDELITY INSURANCE COMPANY
Member companies of IAT Insurance Group, Headquartered: 702 Oberlin Road, Raleigh, North Carolina 27606
KNOW ALL MEN BY THESE PRESENTS: That HARCO NATIONAL INSURANCE COMPANY, a corporation organized and existing under the laws of
the State of Illinois, and INTERNATIONAL FIDELITY INSURANCE COMPANY, a corporation organized and existing under the laws of the State of New
Jersey, and having their principal offices located respectively in the cities of Rolling Meadows, Illinois and Newark, New Jersey, do hereby constitute and
appoint
MICHAEL D. WILLAMS, JEREMY CRAWFORD
Golden Valley, MN
their true and lawful attorney(s)-in-fact to execute, seal and deliver for and on its behalf as surety, any and all bonds and undertakings, contracts of
indemnity and other writings obligatory in the nature thereof, which are or may be allowed, required or permitted by law, statute, rule, regulation, contract
or otherwise, and the execution of such instrument(s) in pursuance of these presents, shall be as binding upon the said HARCO NATIONAL
INSURANCE COMPANY and INTERNATIONAL FIDELITY INSURANCE COMPANY, as fully and amply, to all intents and purposes, as if the same had
been duly executed and acknowledged by their regularly elected officers at their principal offices.
This Power of Attorney is executed, and may be revoked, pursuant to and by authority of the By -Laws of HARCO NATIONAL INSURANCE COMPANY
and INTERNATIONAL FIDELITY INSURANCE COMPANY and is granted under and by authority of the following resolution adopted by the Board of
Directors of INTERNATIONAL FIDELITY INSURANCE COMPANY at a meeting duly held on the 13th day of December, 2018 and by the Board of
Directors of HARCO NATIONAL INSURANCE COMPANY at a meeting held on the 13th day of December, 2018.
"RESOLVED, that (1) the Chief Executive Officer, President, Executive Vice President, Senior Vice President, Vice President, or Secretary of the
Corporation shall have the power to appoint, and to revoke the appointments of, Attorneys -in -Fact or agents with power and authority as defined or limited
in their respective powers of attorney, and to execute on behalf of the Corporation and affix the Corporation's seal thereto, bonds, undertakings,
recognizances, contracts of indemnity and other written obligations in the nature thereof or related thereto; and (2) any such Officers of the Corporation
may appoint and revoke the appointments of joint -control custodians, agents for acceptance of process, and Attorneys -in -fact with authority to execute
waivers and consents on behalf of the Corporation; and (3) the signature of any such Officer of the Corporation and the Corporation's seal may be affixed
by facsimile to any power of attorney or certification given for the execution of any bond, undertaking, recognizance, contract of indemnity or other written
obligation in the nature thereof or related thereto, such signature and seals when so used whether heretofore or hereafter, being hereby adopted by the
Corporation as the original signature of such officer and the original seal of the Corporation, to be valid and binding upon the Corporation with the same
force and effect as though manually affixed."
IN WITNESS WHEREOF, HARCO NATIONAL INSURANCE COMPANY and INTERNATIONAL
FIDELITY INSURANCE COMPANY have each executed and attested these presents
on this 31st day of December, 2018
rsltiYly t ,.,,.,,..,
4�0 SG STATE OF NEW JERSEY STATE OF ILLINOIS ; o;4oavougr��,�
y ypPPOq�� �9y County of Essex County of CookSEAL i rAL a n
c 1904 s m r. J iflD4 �'
d JER Kenneth Chapman
Executive Vice President, Harco National Insurance Company
and International Fidelity Insurance Company
On this 31 st day of December, 2018 , before me came the individual who executed the preceding instrument, to me personally known, and,
being by me duly sworn, said he is the therein described and authorized officer of HARCO NATIONAL INSURANCE COMPANY and
INTERNATIONAL FIDELITY INSURANCE COMPANY; that the seals affixed to said instrument are the Corporate Seals of said Companies; that the
said Corporate Seals and his signature were duly affixed by order of the Boards of Directors of said Companies.
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IN TESTIMONY WHEREOF, I have hereunto set my hand affixed my Official Seal, at the City of Newark,
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New Jersey the day and year first above written.
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Shireile A.Out`leyy a Notary Public of New Jersey
'
My Commission Expires April 4, 2023
CERTIFICATION
I, the undersigned officer of HARCO NATIONAL INSURANCE COMPANY and INTERNATIONAL FIDELITY INSURANCE COMPANY do hereby certify
that I have compared the foregoing copy of the Power of Attorney and affidavit, and the copy of the Sections of the By -Laws of said Companies as set
forth in said Power of Attorney, with the originals on file in the home office of said companies, and that the same are correct transcripts thereof, and of the
whole of the said originals, and that the said Power of Attorney has not been revoked and is now in full force and effect.
IN TESTIMONY WHEREOF, I have hereunto set my hand on''this day, January 11, 2024
A02712
Irene Martins, Assistant Secretary
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 Minnesota
County of Hennepin )
On 1/11/2024 before me,
Maira Rasmussen
(insert name and title of the officer)
personally appeared Jeremy Crawford, Attorney -In -Fact
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their 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.
o tf�88T,
WITNESS my hand and official seal.'-rs'`. MAIRAMOTTAGOMESRASMUSSEN
� , Notary Public -Minnesota
���-�'M Commiselon Ex Tres Jan 31, 2027
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Signatures (Seal)
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State Of Minnesota
County of Hennepin )
On 1/11/2024 before me,
Maira Rasmussen
(insert name and title of the officer)
personally appeared Jeremy Crawford, Attorney -In -Fact ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their 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.
w
�'" MAIRA MOTTA GOMES RASMUSSEN
WITNESS my hand and official seal. ��°�'..
'.,� Notary Public- Minnesota
`p°�, N!¢, F °6 My Commission Expires Jan 31, 2027
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Signature Wk& � (Seal)