DEPARTMENT
Real Estate Services Division and
Water Supply and Treatment
Division AGENDA NO. 13
MEETING DATE September 13, 2022
APPROVAL:
COMMISSION
SECRETARY
Donna Hood
AGENDA ITEM
Public Utilities Commission
City and County of San Francisco
Real Estate Easement Amendment and Soil Fill Agreement: Regular Calendar Assistant General Manager, Water: Steve Ritchie
Water Supply and Treatment Division Manager: Angela Cheung Real Estate Director: Rosanna Russell
Approve a Soil Fill Agreement and Easement Amendment on Google, LLC Property in San Bruno, California for a $190,000 payment by Google LLC
Summary of
Proposed
Commission Action:
Approve the terms and conditions of and authorize the General Manager to execute a Soil Fill Agreement allowing Google LLC ( Google) to perform work within an easement ( Easement) granted to the City, through the S an Francisco Public Utilities Commission (S FPUC), within property acquired by Google and located at 1400- 1450 Bayhill Drive in San Bruno, California, (Google Property) in return for a $190,000 Payment by Google LLC; and approve the terms and conditions of and authorize the General Manager to execute an Easement Amendment allowing Google to perform additional work in the Easement area.
Background:
Under a March 23, 1928 deed (1928 Deed), City obtained an easement from Google’s predecessor-in-interest to lay and maintain water pipelines within a 45-foot wide approximately 42,000 square -foot portion (Easement Area) of the Google Property. The SFPUC operates and maintains San Andreas Pipelines No. 2 and No. 3 ( Pipelines) in the Easement Area. The 1928 Deed provides that Google shall not use the Easement Area in any manner that will interfere with, damage, or endanger the P ipelines in any way, including specific limitations on and allowances for the construction or placement of structures or improvements in, on, or under the Easement Area ( 1928 Deed Restrictions).
Google will develop the Google Property with a campus office project that will include two office buildings and related site and utility improvements (collectively, the Project). Google is proposing certain work in the Easement Area as part of the Project , including installing (i) grading work and soil fill; (ii) subgrade utility crossings, including hydronic pipes for heating and Agreement: Soil Fill Agreement and Easement Amendment with Google LLC.
Commission Meeting Date: September 13, 2022
cooling, sewer, storm, potable, and recycled water, electrical, and fiber optic lines; (iii) hardscape pathways; (iv) irrigation systems; (v) fence crossings, fence footings and gates; (vi) landscaping consistent with the SFPUC’s vegetation policy and subject to the SFPUC’s review and approval of schematic landscaping plans; and (vii) using the Easement Area for temporary construction access ( Google W ork). Google also desires to capture the water that the SFPUC periodically discharges from the Pipeline s located in the Easement Area for beneficial reuse when the Pipelines are dewatered. Google will provide a manhole connection on the Google Property to a high-capacity cistern for capturing this water.
Google further proposes to perform certain work in the Easement Area that exceeds its rights under 1928 Deed, namely installing ( i) non-permanent seating areas, including Eucalyptus log seating; (ii) railings along pathways where required to meet ADA compliance; (iii) low voltage lights, not to exceed 50 volts, and circuits across and along the Easement Area; and (iv) stacked Eucalyptus logs for landscape slope retention ( Additional Google Work).
Soil Fill Agreement
To facilitate Google’s development of the Project, Google will grade and add fill to the Easement Area .
The difference between the final grade of the
Google Property and the Pipelines will exceed eight feet in certain areas (Impacted Areas ). The SFPUC currently ha s four feet of cover over the Pipelines. The additional four feet of cover over the Pipelines will result in higher maintenance costs to the SFPUC over the life of the Pipelines. As Google is the fee owner of the Google Property, SFPU
C cannot prevent
Google from developing its land.
The parties agreed to enter into a Soil Fill Agreement to allow Google to grade and add more soil fill to the Easement Area than the current grade. The additional soil fill of the Impacted Areas will require the SFPUC to design and implement an alternate shoring solution in order to access the P ipelines in the event the SFPUC needs to conduct work in, on or under the Easement Area or the P ipelines or otherwise access the Pipeline s ( Alternate Shoring Solution). Google agreed to compensate the SFPUC for the estimated costs of such installation.
Staff from SFPUC’s Water Supply and Treatment Division performed an assessment of construction and rental costs of specialized shoring systems based on the estimated number of occurrences that the SFPUC can exp ect to implement over the life of the Pipelines. The estimated costs came to a sum of $ 190,000 ( One-Time Payment). The Soil Fill Agreement outlines the terms for Google to make the One-Time Payment.
Deed Amendment
The Deed Amendment will amend the 1928 Deed to expressly authorize the Additional Google Work and to memorialize the understanding that the SFPUC bears no responsibility for the maintenance, repair, or replacement of Google’s improvements in the Easement Area and has no obligation to provide Google with greater access to the Easement Area during Agreement: Soil Fill Agreement and Easement Amendment with Google LLC.
Commission Meeting Date: September 13, 2022
maintenance or construction work than as set forth in the 1928 Deed.
SFPUC staff recommends that the Commission approve the Google Work and Additional Google Work in the Easement Area pursuant to the Soil Fill Agreement and Deed Amendment.
Environmental
Review:
On January 8, 1996 , the City of San Bruno certified a Final Environmental Impact Report (FEIR) for the Bayhill VIII – Gap Corporate Campus Project at 910 Cherry Avenue and 1400 and 1450 Bayhill Drive pursuant to the California Environmental Quality Act (CEQA). In 1999, t he City of San Bruno prepared an Addendum to the EIR to address revisions to Phase 2 of the Gap Corporate Campus Project. The City of San Bruno considered and relied on the 1996 EIR as well as an Addendum to Environmental Impact Report No. 36 (1999 Addendum) to find that Phase 2 as revised would not result in any new environmental impacts not addressed by the 1996 EIR. In November 2020, the City of San Bruno approved
additional revisions to
Phase 2 of the Project, determined that these changes would not result in new signif
icant impacts or impacts of substantially greater severity that would require further environmental analysis, and adopted all mitigation measures still applicable to the Project.
Although the City of San Bruno has been
unable to locate a copy of the 1999 Addendum to the EIR , the City of San Bruno issued a Memorandum on May 6, 2022 concluding that Phase 2 of the Project would not result in any new environmental impacts not addressed by the EIR . The Memorandum explains how the City of San Bruno has complied with CEQA by reviewing all Project components and addressing any environmental effects identified in the FEIR and 1999 Addendum, including effects on SFPUC’s easement.
The SFPUC is a Responsible Agency acting under CEQA Guidelines Sections 15096 and 15381 for the proposed Project because issuance of a Soil Fill Agreement and Deed Amendment for the Project Sponsor to carry out the proposed Project is a discretionary action subject to compliance with CEQA. The SFPUC has reviewed the FEIR and the City of San Bruno’s May 6, 2022 memorandum and has determined that approval and execution of the Agreement s is within the scope of the FEIR, and that the FEIR is adequate for these actions. The Responsible Agency Findings to be adopted by this Commission support the action to approv
e and execute the
Agreements.
The City of San Bruno has not prepared a separate Mitigation, Monitoring, and Reporting Program (MMRP) for the Project, but
the discussion of
mitigation measures on pages 2-1 through 2-18 of the FEIR are equivalent to an MMRP and satisfy the requirements of CEQA.
The City of San Bruno provided CEQA Findings as a part of Resolution 1996-1. Although this Resolution states that
mitigation measures were
prepared for the FEIR to reduce impacts to less than significant levels, the FEIR also identifies a significant and unavoidable impact related to aesthetics that would result from the Project.
Agreement: Soil Fill Agreement and Easement Amendment with Google LLC.
Commission Meeting Date: September 13, 2022
The FEIR, City of San Bruno Memorandu m, San Bruno Resolution 1996-1, and SFPUC Responsible Agency Findings can be found here:
https://sfpuc.sharefile.com/d-s23758b3e26584337a78689e9edc870a9
Result of Inaction: A delay in adopting the attached resolution will delay Google from performing the work associated with Google’s Project goals.
Budget & Costs: Google will pay all costs associated with its use of the Easement Area and the One -Time Payment of One Hundred and Ninety Thousand Dollars ($190,000).
Description of
Agreement:
The Soil Fill Agreement and Deed Amendment will allow Google to install improvements within City’s Easement on the Google Property.
Recommendation: SFPUC staff recommends that the Commission adopt the attached resolution.
Attachments: 1. Soil Fill Agreement
2. Deed Amendment
PUBLIC UTILITIES COMMISSION
City and County of San Francisco
RESOLUTION NO.
WHEREAS, Under a March 23, 1928 deed (1928 Deed), City obtained an easement (Easement) from the predecessor -in-interest of Google LLC (Google ) to lay and maintain water pipelines within a 45-foot wide, approximately 42,000 square-foot area (Easement Area) located at 1400- 1450 Bayhill Drive in San Bruno, California , now owned by Google. The SFPUC operates and maintains the San Andreas Pipelines No. 2 and No. 3 (Pipelines ) in the Easement Area; and
WHEREAS, The 1928 Deed provides that Google shall not use the Easement Area in any manner that will interfere with, damage, or endanger the P ipelines in any way, including specific limitations on and allowances for the construction or placement of structures or improvements in, on, or under the Easement Area (1928 Deed Restrictions); and WHEREAS, Google desires to develop the Google Property with a campus office project that will include two office buildings and relate d site and utility improvements. Work proposed within the Easement Area includes installation of ( i) grading work and soil fill; (ii) subgrade utility crossings, including hydronic pipes for heating and cooling, sewer, storm, potable and recycled water, electrical, and fiberoptic lines; (iii) hardscape pathways; (iv) irrigation systems; (v) fence crossings, fence footings and gates; (vi) landscaping consistent with the SFPUC’s vegetation policy and subject to the SFPUC’s review and approval of schematic landscaping plans; and (vii) using the Easement Area for temporary construction access (Google Work); and WHEREAS, Google further proposes certain work in the Easement Area that exceeds the 1928 Deed Restrictions including installing (i) non-permanent seating areas, including Eucalyptus log seating; (ii) railings along pathways where required to meet ADA compliance ; (iii) low voltage lights, not to exceed 50 volts , and circuits across and along the Easement Area; and (iv) stacked Eucalyptus logs for landscape slope retention (Additional Google Work); and WHEREAS, The SFPUC desires to enter into a Soil Fill Agreement and Easement Amendment (together, the Agreements ) to allow Google to ( i) install soil fill that exceeds SFPUC’s current grade over the Pipelines ; ii) pay a one-t ime payment of One Hundred and Ninety Thousand Dollars ($190,000) for future shoring installations required to access the Pipelines; and (iii) perform work within the Easement Area that exceeds Google’s rights under the 1928 Deed. Google and SFPUC will also enter into a Cooperative Agreement within ninety (90) days of the issuance of the surface use consent letter, included as an attachment to the Soil Fill Agreement, to specify terms for how the Google Work and Additional Work w ill be carried out; and
WHEREAS, SFPUC staff recommends that the Commission approve the Google Work and Additional Google Work in the Easement Area pursuant to the Agreements; and WHEREAS, On January 8, 1996, the City of San Bruno, acting as the California Environmental Quality Act (CEQA) lead agency, certified a Final Environmental Impact Report (FEIR) for the Bayhill VIII – Gap Corporate Campus Project (Project); and
WHEREAS, The City of San Bruno has since prepared a 1999 Addendum to the FEIR to address revisions to the Project, and has determined that Phase 2 of the Project would not result in any new environmental impacts or impacts of substantially greater severity that would require further environmental analysis, and has ad opted all mitigation measures still applicable to the Project; and
WHEREAS, On May 6 , 2022 the City of San Bruno issued a Memorandum concluding that the Project, as revised, would not result in any new environmental impacts not addressed by the EIR; and
WHEREAS, The City of San Bruno has not prepared a separate Mitigation Monitoring and Reporting Program, but has adopted the mitigation measures included in the FEIR to avoid or substantially lessen the significant environmental effects identified in the FEIR, and has assumed responsibility for their implementation; and
WHEREAS, The FEIR, the May 6, 2022 Memorandum, San Bruno Resolution 1996-1, and SFPUC Responsible Agency Findings are part of the record of this approval and are available for public review at the SFPUC offices, Real Estate Services Division, 525 Golden Gate Avenue, 10th Floor, San Francisco, California; and
WHEREAS, Since the Ci ty of San Bruno adopted the FEIR, there have been no substantial changes in the Project or changes in Project circumstances that would result in new significant environmental effects or an increase in the severity of previously identified significant impacts, and there is no new information of substantial importance that would change the conclusions set forth in the FEIR; and
WHEREAS, The CEQA Findings included in San Bruno Resolution 1996- 1 state that mitigation measures were prepared for the FEIR to redu ce impacts to less than significant levels; and
WHEREAS, to the extent that the CEQA Findings do not account for the Project’s significant and unavoidable aesthetic impact related to the change in site character from natural undeveloped to urban commercia l, this impact will not result from the P roject components subject to the approval or jurisdiction of the SFPUC; and
WHEREAS, This Commission, acting as a responsible agency under CEQA Guidelines Sections 15096 and 15381, has reviewed the FEIR and May 6, 2022 Memorandum and has determined that the approval and execution of the Agreement s is within the scope of the Project’s CEQA approval, and that the FEIR and related materials are adequate for use in approval and execution of the Agreements; and
WHEREAS, The SFPUC has no direct authority or responsibility with respect to the proposed Project other than to enable the Project Sponsor, through approval and execution of the Agreements, to carry out the proposed Project; now, therefore, be it
RESOLVED, This Commission has reviewed and considered the environmental effects of the Project identified in the FEIR , and the record , adopts the City of San Bruno’s CEQA Findings as its own, and finds that the FEIR is adequate for use as the decision- making body for the action taken by this Resolution; and be it
FURTHER RESOLVED, This Commission finds that since the FEIR was finalized, there have been no substantive Project changes and no substantial changes in Project circumstances that would require revisions to the FEIR due to the potential involvement of new significant environmental effects or an increase in the severity of previously identified significant impacts, and there is no new information of substantial importance that would change the conclusions set forth in the FEIR; and be it
FURTHER RESOLVED, That this Commission hereby approves the terms and conditions of the Agreements; and, be it
FURTHER RESOLVED, That this Commission herby authorizes the SFPUC General Manager to take such other actions that are necessary or advisable to effectuate the purposes and intent of the Agreements or this resolution and are in compliance with all applicabl e laws, including the City Charter; and be it
FURTHER RESOLVED, That this Commission hereby ratifies, approves , and authorizes all actions heretofore taken by any City official in connection with this Agreements; and be it FURTHER RESOLVED, That this Comm ission hereby authorizes the SFPUC General Manager to enter into any amendments or modifications to the Agreements, including without limitation, the exhibits, that the General Manager determines, in consultation with the City Attorney, are in the best int erest of the City; do not materially increase the obligations or liabilities of the City; are necessary or advisable to effectuate the purposes and intent of the Agreements or this resolution; and are in compliance with all applicable laws, including the City Charter.
I hereby certify that the foregoing resolution was adopted by the Public Utilities Commission at its meeting of September 13, 2022.
Secretary, Public Utilities Commission
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SOIL FILL AGREEMENT
This SOIL FILL AGREEMENT (“ Agreement”), dated as of ____________, 2022 for reference purposes, is made by and between GOOGLE LLC, a Delaware limited liability company (“Google”) and the CITY AND COUNTY OF SAN FRANCISCO, a municipal corporation (“City”), acting by and through its Public Utilities Commission (“ SFPUC”). Google and City may be referred to individually in this Master Agreement as a “ Party” or collectively as the “Parties.”
R E C I T A L S :
A. Google holds fee title to certain real property located in the City of San Bruno, County of San Mateo, State of California, and more particularly described on the attached Exhibit A (“Property”). Google will develop the Property with a campus office project behind 901 Cherry Avenue that will include two office buildings commonly referenced as “Building 2” and “Building 3,” a Central Utility Plant, and related site and utility improvements (collectively, the “Project”). When completed, the Property’s address will be 1400, 1450, and 1500 Bayhill Drive, San Bruno, California.
B. Pursuant to a March 23, 1928 deed attached as Exhibit B (“1928 Deed”), City has easement rights to lay and maintain water pipelines (“ Easement Rights ”) in a 45- foot wide easement identified as “Parcel 1” and “Parcel 2” in the 1928 Deed (“Easement Area ”). The parcels are generally parallel to the proposed Building 2 and Building 3. The 1928 Deed provides that Google shall not use the Easement Area in any manner that will interfere with, damage, or endanger in any way the Pipelines (as defined in Recital C), including specific limitations on and allowances for the construction or placement of structures or improvements in, on or under the Easement Area.
C. City has installed and operates two existin g water pipelines, together with associated appurtenances (collectively, the “Pipelines”), in the Easement Area.
D. To facilitate Google’s development of the Project, Google will grade and add fill to the Easement Area (the “Project Improvements,” as defined and depicted in the Final Surface Use Consent Letter approved by SFPUC, subject to this Agreement and a separate easement amendment becoming effective, and attached as Exhibit C to this Agreement). As shown on this exhibit, the difference between the final grade of the Property and the Pipelines will exceed eight feet in certain areas (the “Impacted Areas”).
E. The final condition of the Impacted Areas may require the SFPUC to design and implement an alternate shoring solution in order to access the Pipelines in the event that City needs to conduct work in, on or under the Easement Area or the Pipelines or otherwise access the Pipelines (“City Work”).
F. In consideration of SFPUC’s agreement to allow the Project Improvements in the Easement Area, and in order to cover the added cost of the City Work, the Parties desire to enter into this Agreement pursuant to the terms set forth below.
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NOW, THEREFORE, in consideration of the mutual covenants and agreements contained in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
A G R E E M E N T :
1. One Time Payment to City . To cover the anticipated cost of the City Work for the remaining usable life of the Pipelines, Google will make a one -time payment to City in the amount of One Hundred and Ninety Thousand Dollars ($190,000) (“One Time Payment”). These funds shall be paid directly to the City within thirty (30) days of the full execution of this Agreement by way of wire transfer.
2. City Work Shall Be The Sole Responsibility of City. Regardless of the actual added cost of the City Work resulting from or related to the installation or presence of the Project Improvements, the Parties agree that all aspects of the design, cost and implementation of the City Work shall be City’s sole responsibility and under its sole and complete direction, this includes but is not limited to City’s shoring or excavation methods, design, materials, equipment, and consultants or employees utilized for the City Work. The Parties further agree that the One Time Payment shall fully and finally resolve all Google responsibility for any increased cost of City Work on the Pipelines as a result of the Project Improvements.
3. Hold Harmless . To the fullest extent permitted by law, City shall defend, indemnify, and hold Google and Google’s officers, employees, agents, and volunteers, harmless from any liability for damage or claims of same, including, but not limited to, person al injury, property damage, and death, which may arise from changed conditions resulting from or related to the Project Improvements in City’s performance of the City Work, except to the extent caused by Google’s negligence or willful misconduct. Google shall cooperate reasonably in the defense of any action, and City shall employ competent counsel reasonably acceptable to Google.
4. Release by City. Upon Google’s satisfaction of the obligations set forth in Section 1 of this Agreement, City shall release an d forever discharge Google and its agents, employees, contractors, and attorneys from any and all claims, demands, damage, liabilities, obligations, agreements, expenses (including attorneys' fees), actions and causes of action, of whatever description or nature, arising out of the changed conditions resulting from or related to the Project Improvements in City’s performance of the City Work, whether now known or unknown, and whether now existing or later arising, except to the extent caused by Google’s negligence or willful misconduct.
5. Civil Code Section 1542. By executing this Agreement, each Party expressly waives the provisions of Civil Code section 1542, which provides: A GENERAL RELEASE
DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR OR RELEASING PAR TY
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE
MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
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6. Notices.
(a) Notices. Any notice, consent, or approval required or permitted to be given under this Agreement shall be in writing and shall be given by (i) hand delivery, against receipt, (ii) reliable next business day courier service that provides confirmation of delivery, or (iii) United States registered or certified mail, postage prepaid, return receipt required, and addressed as follows (or to such other address as either Party may from time to time specify in writing to the other upon five (5) days’ prior, written notice in the manner provided above):
Google: Google LLC
1600 Amphitheatre Parkway
Mountain View, CA 94043
Attn: Mr. Joshua Portner, Director
Email: [email protected]
With a copy to: Allen Matkins Leck Gamble Mallory & Natsis LLP 865 South Figueroa Street, Suite 2800
Los Angeles, California 90017
Attn: Lindsay Tabaian
Email: [email protected]
City: San Francisco Public Utilities Commission
1000 El Camino Real,
Millbrae, CA 94030
Attn: Angela Cheung
Re: 1400/1450 Bayhill Drive Project
Email: [email protected]
With a copy to: Real Estate Services Division
San Francisco Public Utilities Commission
525 Golden Gate Avenue, 10th Floor
San Francisco, California 94102
Attn: Real Estate Director
Re: 1400/1450 Bayhill Drive Project
Email: [email protected]
A properly addressed notice transmitted by one of the foregoing methods shall be deemed received upon the confirmed date of delivery, attempted delivery, or rejected delivery, whichever occurs first. Any email addresses, telephone numbers, or facsimile numbers provided by one Party to the other shall be for convenience of communication only. In light of the COVID -19 pandemic ongoing at the time of the execution of this Agreement, each Party shall use good faith efforts to provide a courtesy copy of any notice, consent, or approval required or permitted to be given under this Agreement by e -mail to the other Party; however, neither Party may give official or binding notice orally or by e -mail or facsimile. The effective time of a notice shall not be affected by the receipt, prior to receipt of the original, of an oral notice or an e-mail or facsimile copy of the notice. (b) Emergency Contacts . Google shall immediately notify the SFPUC’s Millbrae Dispatch facility by phone at (650) 872 -5900 of any emergency or incident on or about the Easement Area requiring emergency response.
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7. Breach of Agreement. Should City believe that Google is in breach of any terms of this Agreement, City shall provide written notice to Google pursuant to Section 6 [Notices] above that specifies the nature of the breach. Following receipt of written notice, Google shall promptly act to cure the alleged breach and, in any event, shall cure the breach within five (5) business days of its receipt of such notice unless the breach cannot be cured within five (5) business days, in which case Google shall have a reasonable period of time to cure the breach.
8. Choice of Law. This Agreement shall be construed and enforced pursuant to the laws of the State of California and City’s Charter.
9. Binding on Successors . The terms and conditions of this Agreement shall be binding upon and inure to the benefit of the successors and assignees of the Parties.
10. No Joint Ventures or Partnership. This Agreement does not create a partnership or joint venture between the City and Google as to any activity conducted by Google in or around the Easement Area.
11. Partial Invalidity . If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of the Agreement shall continue in full force and effect and shall in no way be impaired or inva lidated, and the Parties agree to substitute for the invalid or unenforceable provision a valid and enforceable provision that most closely approximates the intent and economic effect of the invalid or unenforceable provision.
12. Entire Agreement; Interpretat ion. This Agreement contains the entire agreement and understanding of the Parties with respect to its subject matter and cannot be amended or modified except by a written agreement, executed by each of the Parties. Use of the word “including” or similar words will not be construed to limit any general term, statement, or other matter in this Agreement, whether or not language of non- limitation, such as “without limitation” or similar words, are used.
13. MacBride Principles - Northern Ireland . The provisions of San Francisco Administrative Code Section 12F are incorporated into and made a part of this Agreement by this reference. By signing this Agreement, Google confirms that Google has read and understood that City urges companies doing business in Northern Ireland to resolve employment inequities and to abide by the MacBride Principles, and urges San Francisco companies to do business with corporations that abide by the MacBride Principles.
14. Non-Discrimination in City Contracts and Benefits Ordinance . In the performance of this Agreement, Google shall not discriminate against any employee of, any City employee working with Google, or applicant for employment with, Google, or against any person seeking accommodations, advantages, facilities, privileges, ser vices, or membership in all business, social, or other establishments or organizations, on the basis of the fact or perception of a person’s race, color, creed, religion, national origin, ancestry, age, height, weight, sex, sexual orientation, gender identity, domestic partner status, marital status, disability or Acquired Immune Deficiency Syndrome or HIV status (AIDS/HIV status), or association with members of such protected classes, or in retaliation for opposition to discrimination against such classes.
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15. Requiring Health Benefits for Covered Employees. To the extent applicable and unless exempt or preempted by other Laws, Google shall comply fully with and be bound by all of the provisions of the Health Care Accountability Ordinance (“ HCAO”), as set forth in San Francisco Administrative Code Chapter 12Q (“Chapter 12Q”), including the implementing regulations, as the same may be amended or updated from time to time. The provisions of Chapter 12Q are incorporated into this Agreement by reference and made a part of this Agreement as though fully set forth. The text of the HCAO is currently available on the web at http://www.sfgov.org/olse/hcao. Capitalized terms used in this Section and not defined in this Agreement shall have the meanings assigned to such terms in Chapter 12Q. (a) For each Covered Employee Google shall provide the applicable health benefit set forth in Section 12Q.3 of the HCAO. If Google chooses to offer the health plan option, such health plan shall meet the minimum standards set forth by the San Francisco Health Commission.
(b) Notwithstanding the above, if Google meets the requirements of a “small business” as described in Section 12Q.3(d) of the HCAO, it shall have no obligation to comply with subsection (a) above.
(c) Google’s failure to comply with any applicable requirements of the HCAO shall constitute a material breach by Google of this Agreement and City’s remedies shall be those set forth in the HCAO. If, within thirty (30) days after receiving City’s written notice of a breach of this Agreement for violating the HCAO, Google fails to cure such breach or, if such breach cannot reasonably be cured within such 30- day period, Google fails to commence efforts to cure within such period, or thereafter fails to diligently pursue such cure to completion, City shall have the remedies set forth in Section 12Q.5(f)(1-5). Each of these remedies shall be exercisable individually or in combination with any other rights or remedies available to City. (d) Any Contract or Subcontract regarding services to be performed on the Easement Area entered into by Google shall require the Contractors and Subcontractors, as applicable, to comply with the requirements of the HCAO and shall contain contractual obligations substantially the same as those set forth in this S ection. Google shall notify the Purchasing Department when it enters into such a Contract or Subcontract and shall certify to the Purchasing Department that it has notified the Contractor or Subcontractor of the obligations under the HCAO and has imposed the requirements of the HCAO on the Contractor or Subcontractor through written agreement with such Contractor or Subcontractor. Google shall be responsible for ensuring compliance with the HCAO by each Contractor and Subcontractor performing services on the Easement Area. If any Contractor or Subcontractor fails to comply, City may pursue the remedies set forth in this Section against Google based on the Contractor’s or Subcontractor’s failure to comply, provided that the Contracting Department has first provided Google with notice and an opportunity to cure the violation.
(e) Google shall not discharge, reprimand, penalize, reduce the compensation of, or otherwise discriminate against, any employee for notifying City of any issue relating to the HCAO, for opposing any practice proscribed by the HCAO, for participating in any proceedings related to the HCAO, or for seeking to assert or enforce any rights under the HCAO by any lawful means.
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(f) Google represents and warrants that it is not an entity that was set up, or is being used, for the purpose of evading the requirements of the HCAO. (g) Google shall keep itself informed of the requirements of the HCAO, as they may change from time to time.
(h) Upon request, Google shall provide reports to City in accordance with any reporting standards promulgated by City under the HCAO, including reports on Subcontractors or Contractors.
(i) Within five (5) business days after any request by City, Google shall provide City with access to pertinent records relating to any Google’s compliance with the HCAO. In addition, City and its officers, agents, and employees may conduct random audits of Google at any time during the term of this Agreement. Google shall cooperate with City in connection with any such audit.
16. Notification of Prohib ition on Contributions . Google acknowledges that it is familiar with Section 1.126 of the San Francisco Campaign and Governmental Conduct Code, which prohibits any person who contracts with City for the selling or leasing of any land or building to or from City whenever such transaction would require the approval by a City elective officer, the board on which that City elective officer serves, or a board on which an appointee of that individual serves, from making any campaign contribution to (a) the City elective officer, (b) a candidate for the office held by such individual, or (c) a committee controlled by such individual or candidate, at any time from the submission of a proposal for a contract until the later of either the termination of negotiations for such contract or twelve months after the date the contract is approved. Google acknowledges that the foregoing restriction applies only if the contract or a combination or series of contracts approved by the same individual or board in a fiscal year h ave a total anticipated or actual value of $100,000 or more. Google further acknowledges that (i) the prohibition on contributions applies to Google; each member of Google’s board of directors, and Google’s principal officers, including chief executive of ficer, chief financial officer, and chief operating officer; any person with an ownership interest of more than ten percent (10%) in Google; any subcontractor listed in the contract; and any committee that is sponsored or controlled by Google; and (ii) within thirty (30) days of the submission of a proposal for the contract, the City department seeking to enter into the contract must notify the Ethics Commission of the parties and any subcontractor to the contract. Additionally, Tenant certifies it has informed each of the persons described in the preceding sentence of the prohibitions contained in Section 1.126 by the time it submitted a proposal for the contract to the City, and has provided the names of the persons required to be informed to the City department seeking to enter into that contract within thirty (30) days of submitting its contract proposal to the City department receiving that submittal, and acknowledges the City department receiving that submittal was required to notify the Ethics Commission of those persons.
17. Tropical Hardwoods and Virgin Redwoods. City urges companies not to import, purchase, obtain, or use for any purpose, any tropical hardwood, tropical hardwood wood product, virgin redwood, or virgin redwood wood product, except as expressly permitted by the application of Sections 802(b) and 803(b) of the San Francisco Environment Code. Except as permitted by the application of Sections 802(b) and 803(b), Google shall not use or incorporate any tropical
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hardwood, tropical hardwood wood product, virgin redwood, or virgin redwood wood product in the performance of this Agreement.
18. Conflict of Interest. Google acknowledges that it is familiar with the provisions of Section 15.103 of City’s Charter, Article III, Chapter 2 of City’s Campaign and Governmental Conduct Code, and Sections 87100 et seq. and Sections 1090 et seq. of the California Government Code and certifies that it does not know of any facts that would constitute a violation of said provisions. If Google becomes aware of any such fact during the term of this Agreement, Google shall immediately notify City.
19. Disclosure. City’s Sunshine Ordinance (San Francisco Administrative Code Chapter 67) and the State Public Records Law (Gov’t Code Sections 6250 et seq.), apply to this Agreement and any and all records, information, and materials submitted to City in connection with this Agreement. Accordingly, any and all such records, information, and materials may be subject to public disclosure in accordance with City’s Sunshine Ordinance and the State Public Records Law. Google authorizes City to disclose any records, information, and materials submitted to City in connection with this Agreement.
20. Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective unless in writing and signed by an officer or other authorized representative, and only to the extent expressly provided in such written waiver. No waiver shall be deemed a subsequent or continuing waiver of the same, or any other, provision of this Agreement.
21. Authority of City Officials. Notwithstanding anything to the contrary contained in this Agreement, no officer or employee of City has authority to commit City to this Agreement unless and until a resolution of the SFPUC shall have been duly adopted approving this Agreement and authorizing the transaction contemplated by this Agreement. Therefore, any of City’s obligations or liabilities pursuant to or under this Agreement are contingent upon enactment of such a resolution, and this Agreement shall be null and void if, at its sole discretion, the SFPUC does not approve this Agreement.
22. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall, for all purposes, be deemed an original and all such counterparts, taken together, shall constitute one and the same instrument.
23. Exhibits. The following attached exhibits are hereby incorporated into this Agreement by this reference:
Exhibit A – Legal Description
Exhibit B – 1928 Deed
Exhibit C – Final Surface Use Consent Letter with Attachments
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date set forth above.
GOOGLE:
GOOGLE LLC,
a Delaware limited liability company
By:
Name:
Title:
CITY:
CITY AND COUNTY OF SAN FRANCISCO,
a municipal corporation
By: _________________________________
DENNIS J. HERRERA
General Manager
San Francisco Public Utilities Commission
APPROVED AS TO FORM:
DAVID CHIU, City Attorney
By: _______________________________
Shari Geller Diamant
Deputy City Attorney
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EXHIBIT A
Legal Description of the Property
Real property in the City of San Bruno, County of San Mateo, State of California, described as follows:
PARCEL A:
PARCEL "A" AS SHOWN ON LOT LINE OF ADJUSTMENT, AS EVIDENCED BY DOCUMENT RECORDED OCTOBER 01, 2008 AS INSTRUMENT NO. 2008- 110098 OF OFFICIAL RECORDS, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
A PORTION OF BLOCK 5 OF LOT 1, AS SHOWN ON THE MAP ENTITLED "BAYHILL CENTER", FILED OCTOBER 11, 1972 IN BOOK 78 OF MAPS AT PAGES 36 THROUGH 39, AND LOT 3, AS SHOWN ON THAT CERTAIN PARCEL MAP FILED NOVEMBER 19, 1975 IN BOOK 29 OF PARCEL MAPS AT PAGE 38 , SAN MATEO COUNTY RECORDS, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE MOST NORTHERLY CORNER OF SAID BLOCK 5, SAID
POINT ALSO BEING ON THE SOUTHWESTERLY RIGHT OF WAY LINE OF CHERRY AVENUE; THENCE ALONG THE NORTHERLY LINE OF SAID BLOCK 5, SOUTH 57° 13' 02" WEST, 288.07 FEET TO THE POINT OF BEGINNING; THENCE LEAVING SAID NORTHERLY LINE, SOUTH 24° 38' 44" EAST, 438.18 FEET; THENCE SOUTH 65° 21' 16" WEST, 398.19 FEET; THENCE SOUTH 05° 54' 57" EAST, 82.14 FEET TO A POINT ON THE RIGHT OF WAY LINE OF BAYHILL DRIVE; THENCE ALONG SAID RIGHT OF WAY LINE AND BLOCK 5 (78 MAPS 36-39), SOUTH 84° 05' 03" WEST, 22.50 FEET; THENCE CONTINUING ALONG LAST SAID LINE, SOUTH 05° 54' 57" EAST, 119.30 FEET TO THE MOST NORTHERLY CORNER OF SAID LOT 3 (29 PARCEL MAPS 38); THENCE ALONG THE EXTERIOR LINE OF SAID LOT 3 (29 PARCEL MAPS 38), THE FOLLOWING (7) SEVEN COURSES:
1) SOUTH 05° 54' 57" EAST, 91.19 FEET;
2) NORTH 84° 05' 03" EAST, 45.00 FEET;
3) SOUTH 05° 54' 57" EAST, 372.19 FEET;
4) SOUTH 81° 15' 48" WEST, 35.50 FEET;
5) NORTH 64° 16' 00" WEST, 16.46 FEET;
6) NORTH 15° 49' 05" WEST, 164.58 FEET;
7) NORTH 43° 14' 36" WEST, 285.54 FEET TO THE MOST SOUTHERLY CORNER OF SAID BLOCK 5 (78 MAPS 36-39);
THENCE ALONG THE EXTERIOR LINE OF SAID LOT 1 (78 MAPS 36 -39), THE FOLLOWING (5) FIVE COURSES:
1) NORTH 43° 14' 36" WEST, 39.92 FEET;
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2) NORTH 06° 01' 15" EAST, 459.27 FEET;
3) NORTH 32° 34' 46" EAST, 168.57 FEET;
4) NORTH 48° 24' 08" EAST, 303.35 FEET;
5) NORTH 57° 13' 02" EAST, 47.86 FEET TO THE POINT OF
BEGINNING. PARCEL B:
PARCEL "B" AS SHOWN ON LOT LINE OF ADJUSTMENT, AS EVIDENCED BY DOCUMENT RECORDED OCTOBER 01, 2008 AS INSTRUMENT NO. 2008-110098
OF OFFICIAL RECORDS, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
A PORTION OF BLOCK 5 OF LOT 1, AS SHOWN ON THE MAP ENTITLED "BAYHILL CENTER," FILED OCTOBER 11, 1972 IN BOOK 78 OF MAPS AT PAGES 36 THROUGH 39 , SAN MATEO COUNTY RECORDS, MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST NORTHERLY CORNER OF SAID BLOCK 5, SAID
POINT ALSO BEING ON THE SOUTHWESTERLY RIGHT OF WAY LINE OF CHERRY AVENUE;
THENCE ALONG THE EXTERIOR LINES OF BLOCK 5 THE FOLLOWING (7) SEVEN COURSES:
1) SOUTH 24° 38' 44" EAST, 617.61 FEET TO THE BEGINNING OF A TANGENT CURVE TO THE RIGHT HAVING A RADIUS OF 20.00 FEET;
2) ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 90° 00' 00", AN ARC DISTANCE OF 31.42 FEET;
3) SOUTH 65° 21' 16" WEST, 283.84 FEET;
4) SOUTH 65° 58' 57" WEST, 369.45 FEET TO THE BEGINNING OF A TANGENT CURVE TO THE RIGHT HAVING A RADIUS OF 28.00 FEET;
5) ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 1 08° 06' 06", AN ARC DISTANCE OF 52.83 FEET;
6) NORTH 05° 54' 57" WEST, 34.42 FEET;
7) SOUTH 84° 05' 03" WEST, 22.50 FEET;
THENCE LEAVING SAID EXTERIOR LINE NORTH 05° 54' 57" WEST, 82.14 FEET; THENCE NORTH 65° 21' 16" EAST, 398.19 FEET; THENCE NORTH 24° 38' 44" WEST, 438.18 FEET TO A POINT ON THE NORTHERLY LINE OF SAID BLOCK 5; THENCE ALONG SAID NORTHERLY LINE, NORTH 57° 13' 02" EAST, 288.07 FEET TO THE POINT OF BEGINNING.
APN: 020-012-160 (Affects Parcel A) and 020-012-170 (Affects Parcel B) JPN: 020-001-012-013A and 020-001-012-011A
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EXHIBIT B
1928 Deed
[attached]
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EXHIBIT C
Final Surface Use Consent Letter
[attached]
Services of the San Francisco Public Utilities Commission
OUR MISSION: To provide our customers with high-quality, efficient and reliable water, power and sewer services in a manner that values environmental and community interests and sustains the resources entrusted to our care.
Water Supply & Treatment Division
1000 El Camino Real
Millbrae, CA 94030
T 650.872.5900
F 650.872.5984
August 17, 2022
Mr. Joshua Portner
Google LLC
1600 Amphitheater Parkway
Mountain View, CA 94043
[email protected]
Subject: Request for Consent for surface improvement project over the San Andreas Pipeline #2 and #3, within a
portion of SFPUC’s Pipeline Right of Way known as
SFPUC Parcel No. 2 (the “City Parcel”), located at 901
Cherry Avenue, in the City of San Bruno, CA.
CST-823-22
Dear Mr. Portner,
On behalf of Google LLC, a Delaware limited liability company (“Google”), you request consent from City and County of San Francisco (“City”), acting through its Public Utilities Commission (“SFPUC”), to the performance of certain work withi n City’s right -of-way easement referenced above in connection with Google’s proposed construction project (“Project”). In connection with the request, we hereby consent to the performance of construction work required (“ Work”) to perform final grading and install the following: (i) non -permanent seating areas, including Eucalyptus log seating, (ii) railings along pathways where required to meet ADA compliance; (iii) low voltage lights, not to exceed 50 volts, and circuits; (iv) landscaping consistent with the SFPUC’s vegetation policy and subject to the SFPUC’s review and appr oval of schematic landscaping plans; and (v) installation of stacked Eucalyptus logs for landscape slope retention , (vi) irrigation system, and (vii) fence crossings, fence footings and gates , within the “ Work Area” as shown on the attached Exhibit A by Google and/or its contractor McCarthy Building Companies, Inc., a Missouri corporation (together with Google, “Requesting Party”), subject t o, and conditioned strictly on Requesting
Mr. Joshua Portner
Google LLC
August 17, 2022
Party’s complying and causing any other contractor(s) performing the Work to comply with, all the following terms and conditions:
1. Google and City shall use all reasonable efforts to negotiate and finalize the Cooperat ion Agreement within ninety (90) days after the date of Requesting Party’s execution of this consent. The Cooperation Agreement will govern cooperative elements of Google and the City’s operations within the Work Area, including but not limited to th e parties’ respective access rights and notice, review, and approval requirements for future work.
2. Work must not interfere with, damage, or endanger City’s pipelines or appurtenances in any way. Equipment and vehicles used over the pipeline area must not exceed the restrictions and conditions described in Exhibit A-1 . If any portion of the Work Area or any other of City’s real or personal property located on or about the Work Area is damaged by any of the activities of Requesting Party or its agents, contractors, or invitees, Requesting Party shall immediately notify City and at Requesting Party’s sole cost, repair any and all such damage and restore the Work Area and/or damaged City property to its previous
condition; provided, however, at its sole discr etion, City may elect to make any necessary repairs to City’s facilities itself, at Requesting Party’s sole cost thereof within thirty (30) days after receipt of City’s invoice.
3. Notification prior to the start of the Work must be given to the Underground Service Alert (USA). Notification must also be given to Mr. Albert Hao (the “ Construction Inspector ”), at 650- 871- 3015 or e- mail to [email protected], SFPUC Water Supply and Treatment Division, not less than two (2) working days prior to the start of any work on, under, or within the City Parcel.
4. Where potholing is required to measure the depth of City’s pipelines and related facilities, the method, location, and other details of the work shall be subject to the Construction Inspector ’s direction. The ter m “Work” includes such potholing. Potholing using the soft dig method (vacuum soil extraction system) is preferred. If Requesting Party wishes to use any other mechanical method such as digging with a backhoe, it must
Mr. Joshua Portner
Google LLC
August 17, 2022
submit a written request to City at least five (5) business days prior to the proposed commencement date and obtain SFPUC’s prior written consent, which may granted or withheld at SFPUC’s sole discretion. Notwithstanding the foregoing, the last (2) feet of soil above the top of any City pipeline must be dug manually, without the use of any machines. Upon completion of the Work, Requesting Party shall promptly notify City in writing of the depth of City’s pipeline(s) and related facilities in the Work Area.
5. City has no responsibility or lia bility of any kind with respect to any pipes, cables, conduits, or other facilities of utility companies or other third parties that may be on, in, or under the Work Area.
Requesting Party has the sole responsibility to locate such utilities and other exi sting facilities, protect them from damage, and pay for any damage caused by Requesting Party’s activities on or about the Work Area.
6. The Work must commence within 30 days, and completed within 90 days, after the effective date of this letter. All Work p erformed pursuant to this consent must be performed Monday through Friday between 8:00 a.m. and 4:30 p.m., excluding City holidays.
Any Work performed at any other time must be approved by City in writing at least two (2) business days prior to the
commencement of such work. Upon completion of the Work, all debris and excess dirt shall be removed from the Work Area and any other City property affected by the Work shall be restored to its original condition to the satisfaction of the Construction Inspector.
7. At its expense, Requesting Party shall conduct and cause to be conducted all activities permitted by this consent in a safe and reasonable manner and in compliance with all laws, rules, and regulations of any governmental or other regulatory entity and applicable industry standards.
8. Without limiting City’s rights with respect to the City Parcel or regarding the Work, at City’s written request, Requesting Party shall promptly alter or remove at its sole expense any and all facilities, improvements, or other property installed or placed in, on, under, or about the Work Area by Requesting Party as necessary to avoid any actual or potential interference with any of City’s pipelines, power lines, or other facilities, with the maintenance thereof or with any other operations or land uses by
Mr. Joshua Portner
Google LLC
August 17, 2022
City. If Requesting Party fails to complete such work within the time period stated in City’s written request, City shall have the right to perform the requested work and charge Requesting Party all costs and expenses incurred by City in performing such work.
Such amount shall be due and payable upon City’s demand. In the event of an emergency, at its sole option and without notice, City may alter, remove, or protect at Requesting Party’s sole expense, any and all facilities, improvements or other property installed or placed in, on, under, or about the Work Area by Requesting Party. In such event, City shall not be responsible for restoring or returning Requesting Party’s property or
improvements to their prior condition.
9. By its acceptance of this letter and its signature below, Requesting Party hereby agrees to indemnify and hold harmless City, its Public Utilities Commission, and their respective officers, agents, employees, contractors, and volunteers (together, the “Indemnified Parties ”) against any and all demands, claims, legal or administrative proceedings, losses, costs, penalties, fines, liens, judgments, damages, and liabilities of any kind (“Claims”) arising out of, or that may be alleged to have arisen out of, any act or omission of Requesting Party or its employees, contractors, representatives, invitees, or agents in connection with this consent, the Work, and/or the Requesting Party’s use of the Work Area, and/or any other City property affected by the Work. The term “Claims” shall include, without limitation, liabilities resulting from environmental pollution, to the extent caused or exacerbated by any act or omission of Requesting Party or its employees, contractors, representatives, invitees or agents, and environmental remediation and disposal costs.
Requesting Party further agrees to defend City and the other Indemnified Parties against any and all Claims and pay all charges of attorneys and all other costs and expenses arising therefore or incurred in connection therewith; and if any judgment be rendered against City or any of the other Indemnified Parties, Requesting Party shall immediately, at its expense, satisfy, and discharge same.
10. Neither City nor any of its commissions, boards, officers, agents, or employees shall be liable for any damage to, or for any bodily injury or death resulting or arising from the condition of the City Parcel or its use by Requesting Party. Without limiting the indemnification contained in this consent, Requesting Party fully
Mr. Joshua Portner
Google LLC
August 17, 2022
RELEASES, WAIVES, AND DISCHARGES forever any and all
Claims relating to this consent, the Work, the Work Area, and/or any other City property affected by the Work, and covenants not to sue City, its departments, commissions, officers, and employees, and all persons acting through them, under any present or future laws. Requesting Party acknowledges that the above release includes all known and unknown, direct or indirect, and anticipated and unanticipated Claims.
11. Requesting Party accepts the property related to this consent in its “AS-IS” condition, and acknowledges and agrees that neither City nor any of its employees, representatives, or agents have made, and City hereby disclaims, any representations or warranties, express or implied, concerning the property related to this consent. At completion of the Work, Requesting Party shall remove all debris and any excess dirt and shall restore the Work Area to its condition as prior to commencing the Work, to City’s satisfaction.
12. Requesting Party shall procure at its expense and keep in effect, and cause its contractor, if any, performing the Work to procure, at its expense and keep in effect, at all times during the term of this consent commercially reasonable insurance, adequate to cover Requesting Party’s obligations under this consent, and shall name as additional insured the City and County of San Francisco and its Public Utilities Commission, and their respective officers, agents, volunteers, and employees. Prior to commencement of the Work, and at City’s request at any time, Requesting Party shall deliver to City certificates of insurance evidencing the insurance coverage required by this consent, together with complete copies of the policies at City’s request. The minimum coverage of insurance shal l be as follows: (a) General Liability Insurance with limits not less than $2,000,000 each occurrence combined single limit for bodily injury and property damage, including coverage for contractual liability, independent contractors, explosion, collapse and underground (XCU), personal injury, broadform property damage, products, and completed operations; (b) Automobile Liability Insurance not less than $1,000,000 each occurrence combined single limit for bodily injury and property damage, including coverage for owned, non- owned, and hired automobiles, as applicable, if Requesting Party or its contractor uses or causes to be used any vehicles in connection with its performance of the Work or use of the City
Mr. Joshua Portner
Google LLC
August 17, 2022
Parcel, (c) pollution legal liability, environmental remediation liability, and other environmental insurance, as further described below; and (d) workers’ compensation insurance with employer’s liability coverage of not less than $1,000,000 each accident. The workers’ compensation policy shall be endorsed with a waiver of subrogation in favor of City for all work performed by Requesting Party, its employees, agents, contractors, and subcontractors.
The pollution legal liability, environmental remediation liability, and other environmental insurance required above shall include coverage for bodily injury, sickness, disease, mental anguish, or shock sustained by any person, including death; environmental damages; property damage (including but not limited to physical injury to or destruction of tangible property including the resulting loss of use thereof), cleanup costs, and the loss of use of tangible property that has not been physically injured or destroyed; defense costs, charges and expenses incurred in the
investigation, adjustment of defense claims for such
compensatory damages; sudden and non- sudden pollution
conditions, including the discharge, dispersal, release, or escape of hazardous materials into or upon the City Parcel or adjoining City property, the atmosphere, or any watercourse or body of water that results in environmental damages; transportation coverage for the hauling of any hazardous materials by
Requesting Party or Requesting Party’s Contractors or agents, from the Work Area to the final disposal location; and first party environmental remediation that pays for the cost of cleanup and remediation of the Work Area required to comply with all applicable laws. Such insurance shall be endorsed to provide third party disposal site coverage that covers third party bodily injury, property damage and cleanup coverage for pollution conditions emanating from a disposal site or landfill used by the Requesting Party or Requesting Party’s agents. With respect to the pollution legal liability/environmental remediation/cleanup liability insurance policy, Requesting Party shall maintain limits no less than: Two Million Dollars ($2,000,000) per accident and Two Million Dollars ($2,000,000) annual aggregate for bodily injury and property damage and City and its officers, commissioners, agents, volunteers, and employees shall be included as additional insureds and loss payees.
Should any of the required insurance (other than pollution legal liability insurance) be provided under a form of coverage that
Mr. Joshua Portner
Google LLC
August 17, 2022
includes a general annual aggregate limit or provides that claims investigation or legal defense costs be included in such general annual aggregate limit, such general annual aggregate limit shall double the occurrence or claims limits specified above.
Each certificate of insurance shall include a reference to the CST number set forth above in the caption of this letter. At all times, all policies shall be in form and content, and with coverage types and amounts satisfactory to City's Risk Manager, and shall remain subject to City's periodic review of limits and types of insurance to be carried. All required liability insurance shall specify that such policies are primary insurance to any other insurance available to the additional insureds, with respect to any claims arising out of this consent and that the insurance applies separately to each insured against whom claim is made or suit is brought. All policies shall be endorsed to require thirty (30) days’ prior written notice to City of cancellation or intended non- renewal. Insurance companies shall be legally authorized to engage in the business of furnishing insurance in the State of California. All insurance companies shall have a current A.M.
Best Rating no less than “A -, VIII” and shall be satisfactory to City. In the event Requesting Party or its contractor fails to procure such insurance, or to deliver such policies or certificates, City may procure, at its option, the same for the account of Requesting Party, and the cost thereof shall be paid to City by Requesting Party within five (5) days after delivery to Requesting Party of bills therefor.
13. The obligations contained in this consent shall survive any termination of this consent and the performance of the Work.
This consent is revocable, nonpossessory, nonexclusive, and personal to Requesting Party and shall not be assigned or otherwise transferred by Requesting Party under any
circumstances. City may freely revoke this consent at any time without cause and without any liability to the Requesting Party.
This consent does not constitute a license or grant by City of any ownership, leasehold, easement, or other property interest or estate whatsoever in any portion of the Work Area. Nothing in this consent grants or creates any franchise rights pursuant to any federal, state, or local laws.
14. This consent confers permission only insofar as City’s rights in the Work Area are concerned. Requesting Party shall obtain any
Mr. Joshua Portner
Google LLC
August 17, 2022
further permission that may be required because of other existing rights affecting the Work Area.
15. This consent may be signed in counterparts. This consent will be considered signed when a counterpart of the consent, signed by an authorized signing officer of a party, is delivered in an Adobe .pdf file by email transmission. Such electronic signature shall be treated in all respects as having the same effect as an original signature.
[Remainder of page intentionally left blank]
Mr. Joshua Portner
Google LLC
August 17, 2022
This consent becomes effective only when it has been signed below by an authorized signing officer of Requesting Party and received by the City’s Millbrae Office with the insurance certificates required under Paragraph 12 above. Please send a counter -signed copy with the insurance certificates back to our Millbrae Office at 1000 El Camino Real, Millbrae, CA 94030.
Sincerely,
Rosanna S. Russell
Real Estate Director
AGREED TO AND ACCEPTED this ___ day of __________, 2022.
Requesting Party:
Google LLC,
a Delaware limited liability company
By:
Print Name: __________________________________________
Print Title: _____________________________________________
McCarthy Building Companies, Inc.,
a Missouri corporation
By:
Print Name: __________________________________________
Print Title: _____________________________________________
Attachments: Exhibit A – Approved Plans and Specifications Exhibit A-1 – Equipment and Vehicle Load Restrictions
cc: Stacie Feng, w/attachments
Albert Hao, w/attachments
C ST 823-22 File
4878-2844-4703.1
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RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City and County of San Francisco
San Francisco Public Utilities Commission
525 Golden Gate Avenue, 10th Floor
San Francisco, California 94102
Attn: Real Estate Director
and
Real Estate Division
City and County of San Francisco
25 Van Ness Avenue, Suite 400
San Francisco, California 94102
Attn: Director of Property
The undersigned hereby declares this instrument to be exempt from Recording Fees (CA Govt. Code § 27383) and
Documentary Transfer Tax (CA Rev. & Tax Code § 11922 and S.F. Bus. & Tax Reg. Code § 1105).
Assessor Parcel No. 020-012-160
(Space above this line for Recorder's use only)
FIRST AMENDMENT TO
EASEMENT DEED
THIS FIRST AMENDMENT TO EASEMENT DEED (“ First Amendment”) is entered into as of ______ ___, 2022, by and between the CITY AND COUNTY OF SAN FRANCISCO, acting through its Public Utilities Commission (“ SFPUC” or “Grantee”), and GOOGLE LLC, a Delaware limited liability company (“ Google” or “ Grantor”). Grantee and Grantor are hereinafter sometimes individually referred to as a “ Party” or collectively referred to as the “Parties”. The Parties enter into this with reference to the following facts:
R E C I T A L S :
A. Google is the owner of certain real property located at 1400- 1450 Bayhill Drive in San Bruno, California (“City”), San Mateo County Assessor Parcel No. 020-012-160 (“Google Property”), as depicted on Exhibit A attached hereto.
B. On March 23, 1928, Google’s predecessor- in-interest, Mills Estate Incorporated, granted to the SFPUC’s predecessor in interest, Spring Valley Water Company, a forty- five (45) foot wide easement to lay and maintain the San Andreas water pipe lines near the western edge of the Google Property, as more particularly described as “Parcel 1” and “Parcel 2” (“Easement Area”) in the deed recorded in the San Mateo County Records on October 19, 1928 in Book 380 at page 132 (“1928 Deed”).
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C. On February 26, 1996, the City and Google’s predecessor in interest, The Gap, Inc., entered into a Development Agreement pursuant to City Ordinance No. 1568, for development of the Google Property, which was subsequently amended on August 9, 1999 and November 24, 2020 to address, inter alia, changes to the proposed development of the Google Property (“YouTube Project”).
D. Google proposes certain work in the Easement Area as part of the YouTube Project, including (i) grading work and soil fill; (ii) subgrade utility crossings, including hydronic pipes for heating and cooling, sewer, storm, potable and recycled water, electrical, and fiberoptic lines; (iii) hardscape pathways; (iv) irrigation systems; (v) fence crossings, fence footings and gates; and (vi) temporary construction access (“Google Work”).
E. Google further proposes certain work in the Easement Area as part of the YouTube Project, including (i) non-permanent seating areas, including Eucalyptus log seating; (ii) railings along pathways where required to meet ADA compliance ; (iii) low voltage lights, not to exceed 50 volts, and circuits across and along the E asement Area; (iv) landscaping consistent with the SFPUC’s vegetation policy and subject to the SFPUC’s review and approval of schematic landscaping plans; and (v) installation of stacked Eucalyptus logs for landscape slope retention (“Additional Google Work”).
F. The Parties agree to amend the 1928 Deed to expressly authorize the Additional Google Work and to express the Parties’ understanding that Grantee bears no responsibilit y with regards to the maintenance, repair, or replacement of Grantor’s improvements in the Easement Area or to provide Grantor with greater access to the Easement Area during maintenance or construction work than as set forth in the 1928 Deed, and that if as part of Grantor’s maintenance, repair, or replacement of Grantor improvements the design or materials will depart from original Grantee -approved plans, Grantee review and approval shall be required.
G. The Additional Google Work has been or will be approved through the SFPUC’s approval of a Surface Use Consent Letter between the Parties.
A G R E E M E N T :
NOW, THEREFORE, in consideration of the foregoing, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties hereto agree as follows:
1. R
ecitals . Each and all of the foregoing recitals of background facts are incorporated herein by this reference as though set forth herein verbatim.
2. Google Work. The Parties agree that the Google Wo r k is consistent with, and authorized by, the terms of the 1928 Deed.
3. Amendment to the Fifth Reservation and Condition to Authorize Additional Google Work. The Fifth Reservation and Condition to the 1928 Deed, located on page 6 of same, is hereby amended as follows:
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It is hereby understood and agreed that the grantor shall not at any time construct or place any buildings, roads, railroads, telephone, telegraph, electric transmission lines or any other structures or improvements upon the hereinabove described parcels of land; provided, however, that the grantor, its successors and assigns, shall have the right to construct and maintain over and across, but not along, said parcels of land, railroads, roads, streets, sewers, conduits and poles with wires for conducting and transmitting electric current for telephone, telegraph, lighting, heat, power and other purposes, and lines of pipe for carrying water or for conducting gas for light, heat and power purposes ,. grantor, its successors and assigns, shall have the right to construct and maintain both across and along the property described herein, non-permanent seating areas, including Eucalyptus log seating, railings along pathways where required to meet A mericans with Disabilities Act compliance, low voltage circuits and devices, including lighting, not to exceed 50 volts, installation of stacked Eucalyptus logs for landscape slope retention, the right to pl ant landscaping consistent with the vegetation policy of the San Francisco Public Utilities Commission, its successors and assigns and subject to grantee review and approval of schematic landscaping plans , and also the right of free ingress to and egress from said parcels of land for the above purposes and for the purpose of maintaining, repairing and renewing said roads, streets, sewers, conduits, poles, wires and pipes and keeping the same in proper condition for use; provided, further, that the grantor shall not use said parcels of land, or permit the same to be used, for any purpose or in any manner which will interfere with, damage, or endanger in any way any pipes, pipe lines, conduits, connections, appurtenances or appliances of the grantee or grantee’s access to the same. It is further understood and agreed that grantee shall have no obligation to maintain, repair, replace or pay the costs for the same of any of grantor’s improvements in the property described above, and that following grantee work in the property describe d above , grantee shall restore any removed soil back to rough grade, and grantor shall be responsible for the final grading and the repair or replacement of any of grantor’s authorized improvements, and that grantee shall have no obligation to provide grantor with greater access to the property described above during construction., maintenance or repair work than as set forth herein.
It is further understood that if as part of grantor’ s maintenance, repair, or replacement of grantor improvements the design or materials will depart from original grantee -approved plans or interfere with grantee’s access to or use of grantee’s utility facilities, prior written grantee review and approval shall be required.
4. Governing Law. This First Amendment shall be construed and enforced in accordance with the internal laws of the State of California (without regard to conflicts of law).
5. Counterparts . T his First Amendment may be executed in multiple counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.
6. Full Force and Effect. E
xcept to the extent specifically herein amended, all other terms, provisions and conditions of the Agreement shall remain unmodified and in full force and effect. In the event of any conflict between the provisions of the Agreement and the provisions of this First Amendment, the provisions of this First Amendment shall control.
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7. Exhibits . The exhibits that are attached to this First Amendment are hereby incorporated by reference as though set forth in full herein.
8. Recording of First Amendment. Upon execution by both of the Parties of this First Amendment, Grantor shall cause the mutually executed and notarized First Amendment to be recorded in the Official Records. Grantor shall pay the recording fees for recording this First Amendment in the Official Records.
SIGNATURES ARE ON THE FOLLOWING PAGE
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178473.00360/5/13/2022 9:04:37 AM -5- First Amendment to Access Easement Agreement IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date first above written.
SAN FRANCISCO:
“Grantee”
CITY AND COUNTY OF SAN FRANCISCO,
a municipal corporation
By:
_________________________________
DENNIS J. HERRERA
General Manager
San Francisco Public Utilities Commission
APPROVED AS TO FORM:
DAVID CHIU
City Attorney
By:
________________________________
Anna Parlato Gunderson
Deputy City Attorney
GOOGLE LLC:
“Grantor”
GOOGLE LLC,
a Delaware limited liability com pany
By: _________________________________
Name:________________________________
Its: __________________________________
Sa
n Francisco Public Utilities Commission
Resolution No. :________________
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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 ________________________ )
County of ______________________ )
On _________________________, before me, ,
(insert name of notary)
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 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 _________________ t
hat the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature ( Seal)
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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 ________________________ )
County of ______________________ )
On _________________________, before me, ,
(insert name of notary)
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 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 _________________ t
hat the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature ( Seal)
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EXHIBIT A
-1- First Amendment to Access Easement Agreement
EXHIBIT A
Legal Description of Google Property
That real property described as “Parcel 1” and “Parcel 2” in the deed recorded in the San Mateo County Records on October 19, 1928 in Book 380 at page 132.