DEPARTMENT Real Estate Services Division AGENDA NO. 10k MEETING DATE December 13, 2022
APPROVAL:
COMMISSION
SECRETARY
Donna Hood
AGENDA ITEM
Public Utilities Commission
City and County of San Francisco
Real Estate License: Consent Calendar
Real Estate Director: Rosanna Russell
Approve a No-Fee, Month-to-Month Revocable License to the City of Los Altos
Summary of
Proposed
Commission Action:
Approve the terms and conditions of, and authorize the General Manager to execute, a no-fee month-to-month revocable license to the City of Los Altos (Proposed License) to use approximately 130,000 square feet of land within the jurisdiction of the San Francisco Public Utilities Commission ( SFPUC), consisting of portions of SFPUC Parcel Nos. 232-A and 234 -A, and the entirety of SFPUC Parcel Nos. 233- A, 233- B, 236, and 237 in Los Altos, California ( License Area ) to (i) maintain existing improvements consisting of a recreational path with a bridge, landscaping, three street crossings, one sewer line, and one storm drain, and (ii) install and maintain new improvements consisting of disability -access curb ramps and educational signage describing the Hetch Hetchy Regional Water System and informing users of the system’s significance.
Background: The SFPUC Real Estate Services Division conducts a program of negotiating the replacement of outdated and/or expired SFPUC revocable permits with new revocable licenses on the City’s current license form. The curre nt license form contains provisions mandated by federal and state law, Board of Supervisors’ ordinances, City policies, and other terms and conditions not found in older permits . These new and updated legal requirements pro vide greater protection to the SF PUC. If approved, t he Proposed License will replace some of the oldest and least comprehensive permits in the SFPUC’s real estate portfolio.
Existing Permits and Proposed License
The City and County of San Francisco (City) , under the SFPUC’s jurisdiction, owns approximately 130,000 square feet of land constituting the License Area. The SFPUC Water Enterprise operates Bay Division Pipeline Numbers 3 and 4, as well as other appurtenant facilities within the License Area. Over the years, the SFPUC iss ued several revocable permits to the
City of Los Altos (Los Altos) for use of the License Area:
• In 1961, the SFPUC issued a no -fee revocable permit to Los Altos to Agreement: Authorize Revocable License to the City of Los Altos Commission Meeting Date: December 13, 2022
maintain a street extension and a six-inch sewer line on the License Area (1961 Permit).
• In 1963, the SFPUC issued a no -fee revocable permit to Los Altos to maintain a cul -de-sac, storm drain and a ten -foot fire department access roadway on the License Area (1963 Permit).
• In 1972, the SFPUC issued a no-fee revocable permit to Los Altos for street w idening and landscaping maintenance on the License Area (1972 Permit).
• In 1974, the SFPUC issued a no -fee revocable permit to Los Altos to maintain a bicycle path and landscaping within SFPUC Parcel Nos. 234-A, 236, and 237 ( 1974 Permit ). The bicycle path is part of the Palo Alto – Los Altos Trail that connects from Arastradero Road to Los Altos Avenue. T he 1974 P ermit also authorized Los Altos to construct and maintain a bridge crossing over Adobe Creek located at the Palo Alto and Los Altos boundary.
• In 1987, the SFPUC revoked and superseded the 1974 P ermit to extend the 1974 L icense Area to include SFPUC Parcel Nos. 23 2-A, 233-A, and 233-B ( 1987 Permit ). Subsequently in 2005, upon request from Los Altos, the SFPUC amended the 1987 perm it to remove SFPUC Parcel Nos. 232- A, 233- A, 233- B, and 234- A (Previously Removed Parcels) and solely include SFPUC Parcel Nos. 236 and 237 in the 1987 Permit Area (2005 Amendment).
The 1961 Permit, the 1963 Permit, the 1972 Permit, the 1974 Permit and the 1987 Permit (as amended by the 2005 Amendment) are together referred to as the “Existing Permits”.
The SFPUC desires to issue the Proposed License to ( i) add back to the Proposed License Area the portions of the Previously Removed Parcels that were removed by the 2005 Amendment , which will alleviate the SFPUC’s maintenance costs; and ( ii) revoke, supersede and replace the E xisting Permits with the updated terms and conditions of City’s current form of license, as set forth in the Proposed License.
Los Altos is in the design phase of the disability -access curb ramp installation. Provided this Commission approves the Proposed License, Los Altos plans to construct these new disability-access curb ramps and install the educational signage describing the Hetch Hetchy Regional Water System at a later date and informing the public of the system’s significance.
The Los Altos City Council approved the Proposed License on October 11 , 2022.
Consideration
The Proposed License meets the criteria in S ection 5.3.1 of the 2015 Real Estate Guidelines adopted by Commission Resolution No. 15-0012 (“Guidelines”), which allows the SFPUC to offer a no- fee or reduced fee license to a public agency because the License Area: (i) has little or no revenue-generating potential; (ii) is located solely within the boundaries of Agreement: Authorize Revocable License to the City of Los Altos Commission Meeting Date: December 13, 2022
Los Altos; (iii) will be fully maintained and repaired by Los Altos under the terms of the Proposed License; (iv) is not desired for use by any entity other than Los Altos; and (v) will not be us ed for a restricted use, as defined in Section 5.3.1 of the Guidelines.
Finally, the Proposed License will benefit the SFPUC’s primary utility purposes by requiring Los Altos to install and maintain educational signage along the trail to educate users ab out t he Hetch H etchy Regional Water System and the important role the SFPUC Right -of-Way plays in the SFPUC’s transportation of water.
The Proposed License also requires Los Altos to perform vegetation maintenance within the License Area to comply with th e SFP UC’s Integrated Vegetation Management Policy. Los Altos’ use of the License Area will thus benefit the SFPUC by alleviating the SFPUC’s vegetation maintenance obligations within the License Area. This is especially helpful because Los Altos has also agreed in the Proposed License to maintain the surface of SFPUC Parcel Nos. Nos. 233- A and 233-
B, and portions of
SFPUC Parcel Nos. 232-A and 234-A, which have been unlicensed since the 2005 Amendment. These formerly unlicensed parcels were the only parcels in Los Al tos requiring SFPUC maintenance. Los Altos’ assumption of maintenance of these parcels alleviates the need for SFPUC crews to travel back and forth from the Millbrae Yard for the sole purpose of maintaining a relatively small area.
The Propos ed Li cense requires Los Altos to be solely responsible for (i) mowing grass, removing weeds, and trim ming or remov ing trees at least twice each calendar year, and (ii) regularly (at least once every calendar month) removing trash, debris, and graffiti as reaso nably re quired or necessary to keep the Maintenance Area in a safe, sanitary, and sightly condition and preventing the existence of a nuisance on the Maintenance Area, thus relieving the SFPUC of the associated maintenance costs.
Los Altos has also agreed in the Proposed License to inform and respond to third-parties regarding the removal of encroachments, trees , or other noncompliant vegetation on the License Area.
Issuance of the Proposed L icense is also consistent with the SFPUC’s Community Benefits Program, which seeks to serve and foster partnership s and to ensure that public benefits are shared across all communities.
For all of the above reasons, SFPUC staff recommends that this Commission approve the Proposed License.
Environmental
Review:
[The City of Los A ltos determined that work under the revocable license to be categorically ex empt from environmental review under California Environmental Quality Act ( CEQA) Guidelines Section 15301, Class 1 (Existing Facilities). An email from the City of Los Altos dec laring the work under the revocable license to be exempt can be found here:
https://sfpuc.sharefile.com/d-s2b71f607891149ce8d3ab36e59a16ebb
Agreement: Authorize Revocable License to the City of Los Altos Commission Meeting Date: December 13, 2022
Result of Inaction: If the Proposed Lice nse is n ot approved, the SFPUC will not receive the benefit of the maintenance of SFPUC Parcel Nos. 233- A and 233- B, and portions of SFPUC Parcel Nos. 232-A and 234-A or the educational signage.
Budget & Costs: Los Altos will pay a ll costs associated w ith its use of the License Area , including the payment of property and possessory interest taxes.
Description of
Agreement:
Parties to License: City, acting through the SFPUC, and City of Los Altos, a municipal corporation
Annual Rent/Use Fee None
Purpose: The (i) operation, maintenance repair of
existing improvements consisting of a
recreational pathway with a bridge,
landscaping, three street crossings , one sewer
line, and one storm drain ; (ii) the installation,
operation, maintenance, and rep air of new
improvements co nsisting of four disability-
access curb ramps and educational signage
describing the Hetch Hetchy Regional Water
System and informing the public of its
significance.
Location: Portions of SFPUC Parcel Nos. 232-A and 234-
A, and the entirety of SFPUC Parcel Nos. 233-
A, 233-B, 236, and 237 in Los Altos, California
Commencement Date: The date on which the License is executed and delivered by City following SFPUC
authorization and approval.
Recommendation: SFPUC staff r ecommends tha t the Co mmission ado pt the attached resolution.
Attachments: 1. License
2. Maps of the SFPUC Parcels comprising the Combined License Area
PUBLIC UTILITIES COMMISSION
City and County of San Francisco
RESOLUTION NO.
WHEREAS, The City and County of San Francisco (City) owns certain real property presently under the jurisdiction of the San Francisco Public Utilities Commission (SFPUC) known a s SFPUC Parcel Nos. 232- A, 233- A, 233- B, 234- A, 236, and 237 in Los Altos, California (City Property) and desires to license portions of City Property, consisting of portions of SFPUC Parcel Nos. 232- A and 234- A and the entirety of SFPUC Parcel Nos. 233- A, 233-B and 236 and 237 (collectively, License Area); and
WHEREAS, The SFPUC currently operates and maintains two subsurface water transmission pipelines and other appurtenant facilities within the License Area; and WHEREAS, In 1961, the SFPUC issued t he City of Los A ltos ( Los Altos ) a no-fee revocable permit for a street extension and a six -foot sewer line on the License Area (1961 Permit). In 1963, the SFPUC issued to Los Altos a no-fee revocable permit for a cul -de-sac, storm drain and a ten-foot fire department access roadway on the License Area (1963 Permit). In 1972, the SFPUC issued to Los Altos , a no- fee revocable permit for street widening and landscaping on the License Area (1972 Permit). In 1974, the SFPUC issued to Los Altos a no-fee revocable p ermit ( 1974 P ermit) f or a bicycle pathway and landscaping within SFPUC Parcel Nos. 234-A, 236, and 237 (1974 License Area). In 1987, the SFPUC revoked and superseded the 1974 Permit to extend the 1974 License Area to include SFPUC Parcel Nos. 232-A , 233-A, and 233-B (1987 Permit). Collectively, the 1961 Permit, the 1963 Permit, the 1972 Permit, the 1974 Permit and the 1987 Permit (as amended by the 2005 Amendment) are referred to as the “Existing Permits”; and
WHEREAS, Los Altos desires to obtain a licens e to use and maintain the existing improvements allowed under the Existing Permits, and to install new disability-access curb ramps within the License Area; and
WHEREAS, The SFPUC desires to enter into a new license (License) to include updated legal terms not stated in the Existing Permits and to allow Los Altos to use the License Area for maintaining the existing and new improvements within the License Area; and WHEREAS, The Commission adopted the 2015 Real Estate Guidelines on January 30, 2015, by Resolution No. 15-0012 (Guidelines), which provide that the SFPUC may issue a revocable license to a public agency with no use fee if it meets several specified criteria; and WHEREAS, Los Altos is a public agency, and the License Area (i) has little or no revenue-generating potential, (ii) is located solely within the boundaries of Los Altos, (iii) will be fully maintained and repaired by Los Altos under the terms of the Proposed License , (iv) is not desired for use by any entity other than Los Altos , and (v) the License Area will not be used for a Restricted Use, as defined in the Guidelines; and
WHEREAS, The License will benefit the SFPUC’s primary utility purposes by eliminating SFPUC maintenance and vegetation management costs for the License Area, and educating the public a bout the Hetch Hetchy Regional Water System through the Los Altos’ installation of required educational signs about the SFPUC water system and the SFPUC right of way; and
WHEREAS, Issuance of the License furthers the Commission- approved 2011 SFPU C Community Benefits Policy; and
WHEREAS, The Los Altos City Council approved the License on October 11, 2022; and WHEREAS, The City of Los Altos deter mined that work under the revocable license to be categorically exempt from environmental review under California Environmental Quality Act (CEQA) Guidelines Section 15301, Class 1 (Existing Facilities); now, therefore, be it RESOLVED, That this Commission hereby finds that the License is is sued to a public agency under Section 5.3.1 of the Guidelines, and will be issued with no use fee and the License serves the SFPUC’s primary utility purpose; 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 License; and, be it FURTHER RESOLVED, That this Commission hereby approves the terms and conditions of this License; and, be it
FURTHER RESOLVED, That this Commission hereby authorizes and directs t he SFPUC General Manager to execute the License; and, be it FURTHER RESOLVED, That this Commission herby authorizes the SFPUC General Manager to enter into any amendments or modifications to this License, including, without limitation, the exhibits, that t he General Manager determines, in consult ation with the City Attorney, are in the best interest 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 License or this resolution, and are i n compli ance with al l applicable laws, including the City Charter.
I hereby certify that the foregoing resolution was adopted by the Public Utilities Commission at its meeting of December 13, 2022.
Secretary, Public Utilities Commission
1 Rev August 2020
SAN FRANCISCO PUBLIC UTILITIES COMMISSION
REVOCABLE LICENSE
(Replacing and Superseding Four (4) SFPUC Real Estate Agreements identified in Section 2 of this License)
(License #P4550)
THIS REVOCABLE LICENSE (this “License”) dated for reference purposes only as of ___________________, 2022 ( “Effective Date” ), is made by and between the CITY AND COUNTY OF SAN FRANCISCO, a municipal corporation (“ City”), acting by and through its Public Utilities Commission ( “ SFPUC”), and CITY OF LOS ALTOS, a California municipal corporation (“Licensee”). City and Licensee are sometimes collectively referred to in this License as the “ Parties” or singularly as a “ Party.” This License is entered into with reference to the following facts and understandings of the Parties.
RECITALS
A. City owns certain real property under the SFPUC’s jurisdiction in the City of Los Altos commonly referred to as the Bay Division Pipeline No. 3 and 4 right of way (“ Right of Way").
B. Pursuant to that certain Revocable Permit entered into by and between City and Licensee, dated April 4, 1961 (“GEN-0215”), City granted Licensee permission to use a portion of the Right of Way designated as SFPUC Parcel No. 236 for a street extension and a six-foot (6’) sewer line, as shown on drawings prepared by George S. Nolte, Consulting Civil Engineer’s, Inc., Sheet 1 of Job No. 246-60 entitled “Improvement Plan Tract No. 2930 Preliminary Los Altos, California” and dated March of 1961, and attached hereto as Exhibit B-1.
C. Pursuant to that certain Revocable Permit entered into by and between the City and Licensee, dated May 21, 1963 (“ GEN-0687”), City granted Licensee permission to use a portion of the Right of Way designated as SFPUC Parcel Nos. 232A, 233B and 234A for Licensee’s use as a cul-de-sac, storm drain and a ten-foot (10’) fire department access roadway, as depicted in the attached San Francisco Water Department Drawing B-2518, attached hereto as Exhibit B-2.
D. Pursuant to that certain Land Use Permit entered into by and between City and Licensee, dated May 9, 1972 (“ GEN -1339”), City granted Licensee permission to use a portion of the Right of Way, designated as SFPUC Parcels Nos. 234A and 236 for the purpose of street widening and landscaping, as reflected in the drawing attached hereto as Exhibit B-3. GEN-0215 together with GEN-0687 and GEN-1339 are collectively referred to as the “ Engineering Permits”.
E. Pursuant to that certain Land Use Permit entered into by and between the City and Licensee, dated June 12, 1974 (“ Permit No. 3137 ”), City granted Licensee permission to use a portion of the Right of Way, designated as SFPUC Parcel Nos. 234-A, 236, and 237 for the construction of landscaping and a bicycle path, including a pedestrian bridge, in accordance with the drawing entitled “Preliminary Landscape Plan,” dated July 11, 1973 (revised March 21, 1974) 2 Rev August 2020
prepared by Royston, Hanamoto, Beck & Abey, Landscape Architects ( “ Landscaping Plans"), and that set of Plans prepared by George Nolte and Associates, drawing Numbers 6070-73, sheets, 2,3,4 and 5, dated May 1974 and attached hereto as Exhibit B-4 ( “Bridge Plans”). The pedestrian bridge shall hereinafter be referred to as the “Bridge”.
F. Pursuant to that certain Land Use Permit entered into by and between the City and Licensee, dated February 4, 1987, and effective retroactively as of December 1, 1985 ( “Permit No. 3137B”), which superseded and revoked Permit No. 3137, City granted Licensee permission to use portions of the Right of Way, being the entirety of SFPUC Parcel No. 233-A, and portions of SFPUC Parcel Nos. 232-A, 234-A, 236 and 237, as depicted on San Francisco Water Department drawing C-1061-1, attached hereto as Exhibit B-5 for a bicycle path, including the Bridge, and landscaping purposes in accordance with the Landscaping Plans, the Bridge Plans attached hereto as Exhibit B-4, and the drawings from the Licensee, dated November 19, 1985, showing added permit area for Licensee, attached hereto as Exhibit B-6.
G. Permit No. P3137B was amended by that certain letter from City to Licensee, dated April 22, 2005 ( “Letter Amendment”), wherein City, in response to Licensee’s request set forth in that certain letter from Licensee to City dated March 22, 2005 (“Amendment Request"), agreed to remove the entirety of Parcel 233-A and portions of Parcels 232-A and 234-A from the permit area governed by Permit No. 3137B, thereby leaving Parcels 236 and 237 as areas permitted for Licensee’s use.
H. City and Permittee now desire to enter into this License to, among other things: (a) add back to the areas permitted for Licensee’s use portions of the Right of Way, designated as the entirety of SFPUC Parcel Nos. 233-A and 233-B, and portions of SFPUC Parcel Nos. 232-A and 234-A, that were removed under the Letter Amendment; and (b) revoke, supersede and replace the Engineering Permits and Permit No. 3137B with the terms contained in this License.
AGREEMENT
NOW, THEREFORE, for and in consideration of the foregoing Recitals, which are incorporated into this License by this reference, the mutual covenants and obligations of the Parties contained in this License, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agrees as follows.
BASIC LICENSE INFORMATION
The following is a summary of basic license information (" Basic License Information").
Each item below shall be deemed to incorporate all of the terms set forth in this License pertaining to such item. In the event of any conflict between the information in this Section and any more specific provision of this License, the more specific provision shall control.
City: CITY AND COUNTY OF SAN
FRANCISCO, acting by and
through its Public Utilities Commission
Licensee: CITY OF LOS ALTOS, a California municipal corporation 3 Rev August 2020
Combined License Area
(Section 1 and Section
5(b)):
The Combined License Area shall consist of the Pathway Area and the Maintenance Area.
Pathway Area: Approximately 80,000 square feet, consisting of SFPUC Parcel Nos. 236 and 237 in Los Altos, California, as more particularly described in the legal description attached as Exhibit A and as shown in the attached Exhibit B, together with any
appurtenances.
Maintenance Area
(Section 5(b)):
Approximately 50,000 square feet, consisting of portions of
SFPUC Parcel Nos. 232-A and 234-A and the entirety of SFPUC Parcel Nos. 233-A and 233-B in Los Altos, California, as shown in the attached Exhibit C.
Term (Section 2): Month-to-month commencing on the Commencement Date.
Actual Commencement Date: __________________
Pathway Area Permitted
Acts (Section 6(a)):
The “ Permitted Acts ” within the Pathway Area include
the
following:
(i) Maintaining in compliance with all applicable Laws and Disability and Safety Regulations (as defined in Section 11) four (4) disabled-access curb ramps (“ADA Ramps");
(ii) operating, maintaining, and repairing an existing
concrete-paved recreational pathway on the Pathway
Area, as shown on Exhibit B;
(iii) maintaining vegetation consisting of low-growing shrubs, grass and other plants in accordance with the SFPUC
Vegetation Management Policy (Exhibit E);
(iv) removing all non-compliant vegetation (“ Vegetative Encroachments”) that do not comport with the SFPUC
Vegetation Management Policy ( Exhibit E) and one (1)
light pole, in strict accordance with Section 3
(“Encroachment Removal”);
(v) maintaining the Bridge;
(vi) installing and maintaining signage on the Pathway Area in accordance with Section 5(a);
(vii) the use, maintenance, and repair of the street crossing at Estrellita Way, as shown on Exhibit B-1;
4 Rev August 2020
(viii) the use, operation, maintenance, and repair of one (1) six- inch (6”) sewer line at Estrellita Way, as shown on Exhibit B-1;
(ix) the use, maintenance, and repair of the street widening at Los Altos Avenue that extends into the Combined
License Area, as shown on Exhibit B-3; and
(x) the use, maintenance, and repair of the street crossing and storm drain at Via Del Pozo, as shown on Exhibit B-2.
The improvement s to be installed or maintained by
Licensee listed as items (i) and (ii) and (v) through (x) above are collectively referred to as the “ Permitted
Improvements”.
Maintenance Area
Permitted Acts
(Section 5(b)):
The “Permitted Acts
” within the Maintenance Area include the
maintenance of the surface of the parcels owned by City and identified on the attached Exhibit C (the “Maintenance Area”):
(i) the mowing of grass, removal of weeds, and trimming or removal of trees when necessary in accordance with the
SFPUC Vegetation Management Policy
or at the
discretion of the SFPUC Right of Way Manager and, in
any event, at least twice each calendar year, and
(ii) the regular (at least once every calendar month) removal of trash, d
ebris, and graffiti as reasonably required or
necessary to keep the Maintenance Area in a safe, sanitary, and sightly condition and to prevent the existence of a nuisance on the Maintenance Area.
Licensee’s Share of
Property Taxes:
See Section 32[Taxes,
Assessments, Licenses, License Fees, and
Liens].
Notices: See Section 33[Notices].
Key Contact for City: SFPUC Real Estate Director
Telephone No. and Email: (415) 487-5210
[email protected]
Day-to-Day Contact for
City:
Emily Read, SFPUC Right of Way Manager
Telephone No. and Email: (650) 652-3204
6 Rev August 2020
INSTRUMENTS OF RECORD AFFECTING THE COMBINED LICENSE AREA (COLLECTIVELY, WITH THE DEEDS, THE “RECORDED DOCUMENTS”). LICENSEE
MUST SECURE ALL ADDITIONAL NECESSARY APPROVALS, PERMITS, LICENSES,
AND CONSENTS, AND DELIVER ALL NECESSARY NOTICES, BEFORE COMMENCING
WORK IN THE COMBINED LICENSE AREA, INCLUDING ANY APPROVALS, PERMITS,
LICENSES, CONSENTS, OR NOTICES REQUIRED FROM OR TO THE GRANTORS UNDER THE RECORDED DOCUMENTS. FOR CITY’S BENEFIT, LICENSEE COVENANTS AND
AGREES THAT LICENSEE SHALL FULLY COMPLY WITH THE TERMS AND
CONDITIONS OF THE RECORDED DOCUMENTS AND ANY OTHER RULES AND
REGULATIONS PROMULGATED BY CITY AS THEY APPLY TO ANY WORK TO BE
PERFORMED OR FACILITIES TO BE INSTALLED BY LICENSEE ON THE COMBINED
LICENSE AREA PURSUANT TO THIS LICENSE, AND CITY SHALL HAVE NO RESPONSIBILITY OR LIABILITY OF ANY KIND WITH RESPECT THERETO. LICENSEE
ACKNOWLEDGES AND AGREES THAT NEITHER CITY NOR ANY OF ITS
DEPARTMENTS, COMMISSIONS, OFFICERS, DIRECTORS, AND EMPLOYEES, AND ALL
PERSONS ACTING BY, THROUGH, OR UNDER EACH OF THEM HAVE MADE, AND CITY
DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
CONCERNING THE PRESENT OR FUTURE SUITABILITY OF THE COMBINED LICENSE AREA FOR LICENSEE’S INTENDED WORK OR FACILITIES, THE IMPACT OF ANY TERM OR CONDITION OF THE RECORDED DOCUMENTS ON LICENSEE’S RIGHTS UNDER
THIS LICENSE, OR THE ABILITY TO OBTAIN OR DELIVER, OR THE PROCEDURE FOR
OBTAINING OR DELIVERING, ANY NECESSARY APPROVALS, LICENSES, PERMITS,
CONSENTS OR NOTICES FROM OR TO THE GRANTOR UNDER THE RECORDED
DOCUMENTS OR ANY OTHER PARTY WITH RESPECT TO ANY MATTERS CONTAINED IN THIS LICENSE.
(b) Supersession and Revocation. Effective as of the Commencement Date (defined in Section 2 [Term of License] below), this License shall immediately supersede, replace, and revoke the following permits and agreements previously issued to Licensee by City, and each of such instruments shall be deemed to have terminated as of the Commencement Date and have no further force or effect thereafter; provided, however, that any provisions expressly stated to survive under any such permit shall continue; provided, further that such termination shall not nullify or release Licensee of any obligations accruing under any such instrument with respect to periods prior to the Commencement Date:
(i) the Engineering Permits; and
(ii) Permit P3137B.
2. Term of License; Suspension During Emergency or SFPUC Project; Early Termination.
(a) Term. The privilege conferred to Licensee pursuant to this License shall commence on the Actual Commencement Date, as shown in the Basic License Information and shall immediately expire upon written notice from City revoking this License. The Actual Commencement Date is the date on which this License is executed and delivered by City following the SFPUC authorization and approval and the receipt of all fees and insurance certificates required to be provided by this License ( “ Commencement Date”). City may revoke this License at any time for Good Cause (as defined in Section 2(c)) without penalty, liability or expense of any kind 7 Rev August 2020
to City, including, any obligation to reimburse Licensee for any improvements installed by Licensee; provided, however that in the event City revokes this License for any reason other than for Good Cause, City will, at the request of Licensee, reimburse Licensee for the cost of any improvements that have been installed by Licensee on the Pathway Area after the Commencement Date with the City’s prior written consent, less straight line depreciation for such improvements, assuming a ten (10) year useful life. Notwithstanding the foregoing, City and Licensee herby acknowledge and agree that City will not and shall have no obligation to reimburse Licensee for any improvements that have been installed: (1) by Licensee without City’s prior written consent; (2) by another party; or (3) by Licensee below the surface of the City’s parcels or within any public right of way on the City’s parcels. Upon termination of this License, Licensee will immediately surrender the Combined License Area in the condition required by this License. (b) Suspension during Emergency or SFPUC Project . In the event that an emergency requires City repairs or construction on or about the License Area (“ Emergency Work”) or City determines to undertake a capital improvement, upgrade, replacement, or repair project (“SFPUC Project”) within the License Area, City, at its sole option in lieu of revocation of this License, may declare that the Parties’ respective rights and obligations pursuant to this License with respect to all or any portion of the License Area will be suspended during the course of any such Emergency Work or SFPUC Project, as the case may be. Accordingly, upon no less than sixty (60) days’ prior written notice from City to Licensee, except in the case of an emergency, where City may suspend this License by giving such notice as reasonably practicable under the circumstances, this License will be suspended for the duration of the SFPUC Project or Emergency Work with respect to the License Area, or the portion of the License Area designated by City, until City notifies Licensee that such SFPUC Project or Emergency Work is complete. Upon any receipt of any such City suspension notice, Licensee shall surrender all or the portion of the License Area subject to suspension when and as required by City and promptly coordinate with City to accomplish the removal of any of Licensee’s personal property from the License Area subject to such suspension in accordance with Section 14 [Removal or Alteration of facilities or Improvements]. At its discretion, City may fence the portion of the License Area required for the SFPUC Project or Emergency Work. Upon completion of the SFPUC Project or Emergency Work, City will remove any such fencing and restore the surface of the License Area level with adjacent ground, with grass or gravel at the surface, and not to its previous condition, and this License will apply again to the entire License Area. City’s rights under this Section are in addition to and cumulative with those described in Section 6(b) [Subject to City Uses] below.
(c) Early Termination. If Licensee fails to comply with the terms and conditions of this License and such failure is not cured by Licensee within five (5) business days of City’s notice to Licensee specifying such failure, or in the case of a non-compliance that cannot be cured within five (5) business days, Licensee both fails to cure such non-compliance within such five (5)- day period and fails to diligently pursue such cure to completion on or before the date that is thirty (30) days after the City’s initial notice of Licensee’s failure to comply, such non-compliance shall constitute “Good Cause” for City to revoke this License, and this License shall terminate thirty (30) days after City’s notice of termination to Licensee, and if City directs Licensee (at City’s sole discretion) to remove all equipment and installations from the License Area, then Licensee shall forthwith remove such equipment and installations at Licensee’s cost and shall restore the License Area to its former condition as of the Effective Date of this License.
8 Rev August 2020
3. Encroachment Removal . Licensee’s compliance with this Section is partial consideration for City’s issuance of this License.
(a) Initial Removal of Vegetative Encroachments; Communications. (i) Within two hundred seventy (270) days of the Commencement Date (“ Initial Removal Period ”), Licensee shall remove, at its sole cost, Vegetative Encroachments as follows: (A) on the northern portion of the Pathway Area, Licensee shall remove all Vegetative Encroachments from the ground and airspace within fifteen feet (15') from the edge of SFPUC Bay Division Pipeline No. 3 and (B) on the southern portion of the Pathway Area, Licensee shall remove all Vegetative Encroachments from the ground and airspace within fifteen feet (15') from the edge of the SFPUC Bay Division Pipeline No. 4 (“Initial Removal ”). Within the first thirty (30) days of the Initial Removal Period, City and Licensee will meet to review the trees on the License Area and designate any trees that do not constitute Vegetative Encroachments to ensure these trees are not removed from the License Area; provided, however, that City reserves the right to make the final determination regarding which trees pose unacceptable risks to the SFPUC facilities and must be removed. (ii) In accordance with Section 3(g) below, Licensee is responsible for all communications with third parties, including members of the public, regarding the removal of the Vegetative Encroachments, including, without limitation, any pruning and tree removal.
(iii) Licensee shall remove other Vegetative Encroachments to conform to the requirements of Section 3 (h).
(b) Phase Two Removal of Vegetative Encroachments . Within three hundred sixty-five (365) days of the Commencement Date (“ Phase Two Removal Period ”), Licensee shall remove, at its sole cost, Vegetative Encroachments on the southern portion of the Pathway Area from the ground and airspace within twenty feet (20') from the edge of the SFPUC Day Division Pipeline No. 4. In accordance with Section 3(g) below, Licensee is responsible for all communications with third parties, including members of the public, regarding the removal of the Vegetative Encroachments, including, without limitation, any pruning and tree removal.
(c) Continuing Vegetative Encroachments Removal Obligations. Following the Phase Two Removal Period, Licensee shall remove Vegetative Encroachments every other year, or annually at the SFPUC Right of Way Manager’s direction, as follows: (i) on the northern portion of the Combined License Area, as depicted on Exhibit B, Licensee shall remove all Vegetative Encroachments from the ground and airspace within fifteen feet (15') from the edge of SFPUC Bay Division Pipeline No. 3 and (ii) on the southern portion of the Combined License Area, as depicted on Exhibit B, Licensee shall remove all Vegetative Encroachments from the ground and airspace within twenty feet (20') from the edge of the SFPUC Bay Division Pipeline No. 4. Licensee shall keep the Combined License Area clear of regrowth of foliage as is necessary to retain vertical clearance above SFPUC 9 Rev August 2020
facilities. Licensee shall remove all young seedlings, regrowth, and shrubs as the SFPUC’s Right of Way directs as necessary to prevent future Vegetative Encroachments. (d) Annual Meetings. Licensee shall meet with the SFPUC Right of Way Manager annually, promptly upon the SFPUC’s request, to inspect the Combined License Area and expeditiously resolve any issues regarding Licensee’s compliance with this Section.
(e) Light Pole Removal . Licensee shall remove the light pole located at the west side of Estrellita Way within the Pathway Area within sixty (60) days of the Commencement Date.
(f) Other Encroachment Removal . Licensee shall cause all Encroachments (as defined below) to be removed in accordance with the SFPUC’s Encroachment Policy (attached as Exhibit F ). This obligation applies to Encroachments discovered by, or reported to, Licensee and City. Licensee shall enforce Laws (as defined below) related to Encroachments within the Combined License Area. “Encroachments” are improvements (as defined in Section 8 [Restrictions on Use]) or vegetation within the Combined License Area not approved by City.
(g) Communications. During the term of this License, Licensee shall inform property owners adjoining the Combined License Area, and respond to third party inquiries, if any, of Licensee’s efforts to remove the Vegetative Encroachments and/or Encroachments from the Combined License Area. The SFPUC will inform Licensee by written notice of any known third-party violations of the SFPUC’s Encroachment Policy, Vegetation Management Policy, or related guidelines (and risks resulting from such violations) occurring in and on the Combined License Area. Licensee to sign reasonable requests from City for Licensee to co-sign SFPUC correspondence to applicable third parties regarding any such violations.
(h) Vegetative Encroachment Removal Standards . Licensee shall retain, at its cost, an International Society of Arboriculture Certified Arborist to oversee removal of Vegetative Encroachments. Licensee shall conduct all Vegetative Encroachment removal in accordance with applicable Laws (as defined below), including restrictions regarding nesting birds. Consistent with the Migratory Birds Treaty Act, 16 U.S.C. §§ 703–712, trees will be removed and, or pruned outside of nesting bird season which extends from February 15th through August 15th; or, if removal and or trimming is proposed during the nesting season, Licensee will, at its cost, retain a biologist to inspect the trees in advance of work and, if active nests are present, work will be delayed until nestlings have fledged.
4. Permitted Encroachments . City will allow Licensee to maintain the following existing encroachments (together, “Permitted Encroachments”) installed by Licensee within the Pathway Area in their current locations on the Pathway Area:
(a) three (3) wooden trail signs;
(b) five (5) wooden benches;
(c) three (3) garbage cans;
10 Rev August 2020
(d) two (2) bicycle safety signs;
(e) one (1) water fountain;
(f) one (1) backflow preventor; and
(g) one (1) concrete bench.
Licensee acknowledges that City may require Licensee to remove any or all Permitted Encroachments at the SFPUC’s sole and absolute discretion. If City requires the removal of any or all Permitted Encroachments from the Pathway Area, Licensee shall remove any or all such Permitted Encroachments within thirty (30) days of City’s notice to remove, except in an emergency when Licensee shall remove all such Permitted Encroachments as soon as possible. At its sole discretion, City may elect to remove any or all of the Permitted Encroachments itself, at Licensee’s sole cost, by notifying Licensee of such fact, in which event Licensee shall pay City the cost of such removal within thirty (30) days after receipt of City’s invoice. Licensee may use the Permitted Encroachments until they reach the end of their useful lives, as determined by City in its sole discretion, at which point, the SFPUC may require removal or relocation to a location approved by the City.
5. Consideration .
(a) Educational Signage . As partial consideration for City entering into this License, Licensee shall install and maintain, at its sole cost, at least one (1) educational sign on the Pathway Area in accordance with this Section. Licensee shall work with SFPUC staff to install one (1) sign within the Pathway Area within one-hundred eighty (180) days of the Commencement Date at a location to be approved by the SFPUC Land Engineering Division and the SFPUC Right of Way Manager. The size and content of any such sign shall be subject to the SFPUC’s approval, in its sole discretion.
(b) Maintenance Area Obligations . As additional partial consideration for City entering into this License, Licensee will maintain the surface of the parcels comprising the Maintenance Area, located adjacent to the Pathway Area. As used in this Section 5(b), the terms “maintain,” “maintenance,” and “maintenance obligations,” mean that, with respect to the Maintenance Area, Licensee shall be solely responsible to (i) mow grass, remove weeds, and trim or remove trees when necessary in accordance with the SFPUC Vegetation Management Policy or at the discretion of the SFPUC Right of Way Manager and, in any event, at least twice each calendar year, and (ii) regularly (at least once every calendar month) remove trash, debris, and graffiti as reasonably required or necessary to keep the Maintenance Area in a safe, sanitary, and sightly condition and to prevent the existence of a nuisance on the Maintenance Area.
In the course of maintaining the Maintenance Area, Licensee shall not do anything in, on, under, or about the Maintenance Area that could cause damage to or interference with any pipelines or other property located in, on, under, or about the Maintenance Area. Licensee shall use, and shall cause its employees, contractors, and agents to use, due care at all times to avoid any damage or harm to City’s water pipelines or other property and natural attributes of the Maintenance Area and to minimize slope erosion. Licensee shall not perform any excavation work without City’s prior written approval, which City may withhold at its sole discretion. Under no 11 Rev August 2020
circumstances shall Licensee damage, harm, or remove any rare, threatened, or endangered species that are present on or about the Maintenance Area.
Licensee’s obligations to maintain the Maintenance Area shall continue until the earlier of the following dates: (1) the date Licensee receives City’s notice terminating all of Licensee’s then remaining maintenance obligations pursuant to this Section 5 (b) or (2) the date that this License is terminated. Licensee shall notify City in writing not less than five (5) days before performing any maintenance work on the Maintenance Area, except in the case of an emergency wherein Licensee shall notify City telephonically and in writing as soon as reasonably possible. For the purposes of the foregoing notice obligation, “maintenance work” shall not be deemed to include the mowing, or the weed, trash, debris, and graffiti removal regularly performed by Licensee pursuant to this Section. Notwithstanding the foregoing, at all times, City shall retain all of its property rights with respect to the Maintenance Area, including, without limitation, the right at all relevant times to enter upon, or over the Maintenance Area. If, at any time prior to the termination of Licensee’s maintenance obligations pursuant to this Section 5 (b), City notifies Licensee of deficiencies or failures in Licensee’s performance of such obligations, Licensee shall promptly remedy or cure such deficiencies or failures.
6. Use of Combined License Area .
(a) Permitted Acts. Licensee may enter and use the Combined License Area for the sole purpose of performing the Permitted Acts (as defined in the Basic License Information) and in strict accordance with Section 7(a) [Approval of Plans and Specifications] below, and for no other purpose whatsoever. Except as specifically permitted by this License or otherwise approved by City pursuant to the terms of this License, Licensee shall not permit, construct, maintain, or allow any other improvements, structures, or paved areas on, across, within, over, or under the Combined License Area other than the Permitted Improvements and the Permitted Encroachments allowed on the Pathway Area.
(b) Subject to City Uses . Licensee is aware that the Combined License Area constitutes a portion of City’s regional water pipeline delivery system. Notwithstanding anything to the contrary in this License, any and all of Licensee’s activities pursuant to this License shall be subject and subordinate at all times to City’s existing and future use of the Combined License Area for municipal and other purposes. City shall in no way be liable for any damage or destruction to Licensee’s property and/or improvements resulting from the condition of the Combined License Area or the SFPUC facilities, from any pipeline break or from any pipeline repair or maintenance activities. At City’s request, Licensee shall immediately remove any of Licensee’s property or improvements from the Combined License Area to allow City access to the SFPUC facilities. If City deems it necessary, at City’s sole discretion, City may remove any such property or improvements and City shall not be responsible for restoring or returning the same to its prior condition.
7. Installation and Maintenance of Facilities . Licensee may perform the Permitted Acts described in Section 6(a) [Permitted Acts] above and shall install certain facilities on the Pathway Area consisting of the signage required under Section 5 (a) [Educational Signage]. Licensee shall also maintain the ADA Ramps authorized by City under the consent letter issued by City prior to the Commencement Date (the “ Consent Letter”). The ADA Ramps and signage to be installed on the Pathway Area shall hereinafter collectively be referred to as the “ Facilities” and shall be installed only upon satisfaction of the following conditions, which are for City’s sole benefit:
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(a) Approval of Plans and Specifications . Licensee shall install and maintain the permitted Facilities in accordance with plans and specifications (including drawings) approved in advance and in writing by the SFPUC ( “Approved Plans”). The Approved Plans may be revised or amended only with the SFPUC’s prior written approval after the SFPUC’s Bureau of Environmental Management has determined that no further environmental review is required by CEQA as a result of any such revision or amendment.
(b) Energy Service and Related Facilities . If Licensee seeks electrical service for use in the Combined License Area, or for any licensed Facilities, Licensee shall contact the Interconnection Services Department in the Power Enterprise of the SFPUC to arrange for service.
Licensee shall purchase all electricity necessary for its operations at the Combined License Area from the SFPUC, at the SFPUC’s standard rates charged to third parties, unless the SFPUC determines, in its sole judgment, that it is not feasible to provide such service to the Combined License Area. The SFPUC is the provider of electric services to City property, and the SFPUC’s Interconnection Services Department coordinates with Pacific Gas and Electric Company and others to implement this Section. Except as provided above with respect to any electricity services provided by the SFPUC, Licensee shall make arrangements and pay for all utilities and services furnished to the Combined License Area, including gas, electricity, water, sewage, telephone, and trash collection services, and for all deposits, connection, and installation charges.
Except as otherwise provided in this License, the SFPUC has no responsibility or liability of any kind with respect to any utilities that may be on or about the Combined License Area.
Licensee has the sole responsibility to locate any utility facilities within the Combined License Area and protect them from damage resulting from Licensee’s use of the Combined License Area. (c) Permits, Licenses, and Approvals. Before beginning any permitted improvement or alteration work in the Combined License Area, Licensee shall obtain any and all permits, licenses, and approvals (collectively, “ Approvals”) of all regulatory agencies and other third parties that are required for Licensee to commence, complete, and maintain the permitted work.
Promptly upon receipt of such Approvals, Licensee shall deliver copies of them to the SFPUC.
No approval by the SFPUC for purposes of Licensee’s work under this License shall be deemed to constitute the approval of any federal, state, or local regulatory authority with jurisdiction, and nothing in this License shall limit Licensee’s obligation to obtain all such regulatory Approvals, at Licensee’s sole cost.
(d) Limits of City’s or SFPUC’s Consent . City’s or the SFPUC’s consent to or approval of any improvements, equipment, or fixtures shall not relieve Licensee or its engineers, architects, or contractors from any liability for negligence, errors, or omissions associated with the design and construction of any such improvements, equipment, or fixtures. In no event shall the SFPUC’s approval of plans or specifications be deemed to constitute a representation or warranty by City concerning the suitability of the improvements, equipment, or fixtures for Licensee’s purposes or that the work called for in the plans and specifications complies with applicable building codes or other applicable Laws (defined in Section 11 [Compliance with Laws] below), or industry standards, nor shall such approval release Licensee from its obligation to supply plans and specifications that conform to applicable building codes, other applicable Laws, and industry standards.
(e) Exercise of Due Care . Licensee shall use, and shall cause its Agents (defined in Section 21 [Indemnity] below) to use, due care at all times to avoid any damage or harm to City’s 13 Rev August 2020
water pipelines, facilities, or other property and to native vegetation and natural attributes of the Combined License Area and to minimize slope erosion. Licensee shall not disturb the surface of the Combined License Area or perform any excavation work without City’s prior written approval, which City may withhold at its sole discretion. City may condition and/or oversee any permitted excavation work. At its own expense, Licensee shall mark the location of City’s water pipelines or other facilities within the Combined License Area and shall not use any pick, plow, or other sharp tool to remove the two feet of soil around the pipelines or other facilities, provided that Licensee may use hand shovels or pneumatic shovels in compliance with all other terms and conditions of this License. Licensee shall immediately inform City of any actual or potential damage to the coating of the pipeline, and any such damage shall be promptly repaired by Licensee, at its own expense, to City’s satisfaction prior to backfilling; provided, at its sole discretion, City may elect to make any necessary repairs itself, at Licensee’s sole cost, by notifying Licensee of such fact. Upon completion of the repairs, City shall send to Licensee a bill therefor, which Licensee shall pay within thirty (30) days following receipt. Under no circumstances shall Licensee damage, harm, or take any rare, threatened, or endangered species present on or about the Combined License Area.
(f) Cooperation with Public Utilities Commission . Licensee and its Agents shall work closely with City personnel to minimize any potential disturbance (even if temporary) of the natural features of the Combined License Area and to avoid disruption (even if temporary) of City facilities, in, under, on, or about the Combined License Area and City uses of such facilities. (g) Heavy Equipment. Licensee shall not use any heavy construction equipment over or about City’s pipelines, except as otherwise expressly allowed in Section 8(i) [Heavy Equipment and Vehicles] below.
(h) Work Schedule. Licensee must begin installation work, if at all, within ninety (90) days after the commencement of the term of this License . At least ten (10) business days prior to the commencement of any improvement or alteration work on the Combined License Area, Licensee shall notify City’s Construction Inspector (“ Construction Inspector ”), at (650) 871- 3015, of the date such work shall commence and the intended construction schedule. Notification must also be given to Underground Service Alert at least two (2) days prior to start of work.
Notwithstanding the approval of such schedule by the SFPUC, the Construction Inspector shall have the right to require Licensee to adjust such schedule from time to time. All work must be performed during regular working hours (Monday through Friday) between 8:00 a.m. and 4:30 p.m., exclusive of City holidays. Any work performed during any other time or day must be preapproved by the SFPUC at least ten (10) business days prior to commencing such work. In connection with such approval, City may charge Licensee additional inspection fees payable prior to the SFPUC’s approval of the request. Notwithstanding the work hours set forth above, Licensee shall comply with any applicable local ordinance that imposes later start times and/or earlier cessation times for construction activities. Licensee shall complete all work and restoration no later than (365) days after the commencement of the term of this License. (i) Restoration of License Area . Immediately following completion of any work permitted under this License, Licensee shall remove all debris and any excess dirt and shall restore the Combined License Area to its condition immediately prior to such work, to City’s satisfaction.
Licensee shall restore any damage caused to existing roads and restore excavated areas with new vegetation (including irrigation and maintenance until established) and erosion control netting, all 14 Rev August 2020
as requested by City, and shall comply with all applicable regulations of the regulatory agency with jurisdiction.
(j) Pipeline Depth/Installation of Above-Ground Markers . Before commencing any excavation work in the Combined License Area, Licensee shall measure the depth of City’s pipelines, if any, located in the Combined License Area by potholing and forward such information to City. Any potholing authorized by this License shall be subject to the requirements of Section 7(p) [Potholing] below. Upon completion of work, Licensee shall promptly notify City in writing of the depth of City’s pipeline and related facilities in the Combined License Area.
Licensee shall install above-ground markers identifying the location of any underground facilities installed pursuant to this License. The location, type, and installation of markers and identifying information on the markers shall be subject to the SFPUC’s prior written approval. (k) As-Built Drawings/Reports. Promptly upon completion of the installation of the Facilities, Licensee shall furnish the SFPUC with two (2) complete copies of final as-built drawings for the Facilities, which drawings shall include sufficient detail so as to allow City to precisely locate the Facilities. If Licensee or any of its Agents or consultants prepares any environmental, seismic, geophysical, or other written report relating to the Combined License Area and/or any work performed on the Combined License Area, Licensee shall furnish to City a complete copy of such report, including any schedules, exhibits, and maps, promptly upon completion of the same.
(l) Responsibility for Maintenance of Facilities . Licensee shall be solely responsible for repairing and maintaining all Facilities placed in or on the Combined License Area pursuant to this License or the Consent Letter in good and safe condition, and City shall have no duty whatsoever for any repair or maintenance of the Combined License Area or any such Facilities. Licensee shall notify City in writing not less than five (5) days before performing any repair or maintenance work in the Combined License Area, except in the case of an emergency when Licensee shall notify City telephonically and in writing as soon as reasonably possible. (m) Revocability. The installation of the Facilities to the Combined License Area, regardless of cost, shall not in any way whatsoever limit City’s right to revoke this License pursuant to its terms or any of City’s other rights under this License. (n) Contractors. Licensee shall not accept and release its contractor for work authorized or required by this License before securing the SFPUC’s written approval. (o) Cathodic and Other Protection. City may adopt from time to time such rules and regulations with regard to Licensee’s Facilities and operations under this License as City may determine are necessary or appropriate, at City’s sole discretion, to safeguard against corrosion of, or other damage to, City’s pipelines and related facilities. Licensee shall immediately comply with all such rules and regulations upon receipt of a copy of such rules and regulations. (p) Potholing. Any potholing authorized by this License shall be subject to the direction of City’s Construction Inspector. Potholing using the soft dig method (vacuum soil extraction system) is preferred. If Licensee wishes to use any other mechanical method such as digging with a backhoe, License must submit a written request to the SFPUC at least five (5) business days prior to commencing such work and obtain the SFPUC’s prior written consent. 15 Rev August 2020
Notwithstanding the foregoing, the last two feet (2’) above the top of the pipe must be dug manually, without the use of any machines.
8. Restrictions on Use . The following uses (by way of example only) of the Combined License Area by Licensee, or any other person claiming by or through Licensee, are inconsistent with the limited purpose of this License and are strictly prohibited as provided below:
(a) Improvements. Except as otherwise expressly provided in this License, Licensee shall not construct or place any temporary or permanent structures or improvements in, on, under, or about the Combined License Area, nor shall Licensee make any alterations or additions to any existing structures or improvements on the Combined License Area, unless Licensee first obtains the SFPUC’s prior written consent, which the SFPUC may give or withhold at its sole and absolute discretion. For purposes of this License, the term “improvements” includes asphalt, concrete, and cementitious driveways, sidewalks, and parking areas, shacks, storage facilities, and fences. (b) Trees and Other Plantings. Licensee shall not plant any trees or other vegetation in or on the Combined License Area, except as otherwise expressly provided in this License and except in accordance with detailed plans consistent with the SFPUC’s Vegetation Management Policy (attached as Exhibit E), which may be amended from time to time and as approved by the SFPUC in writing in advance.
(c) Dumping. Licensee shall not cause or permit the dumping or other disposal in, on, under, or about the Combined License Area of landfill, refuse, Hazardous Material (defined in subsection (d) [Hazardous Material] below), or any other materials, including materials that are unsightly or could pose a hazard to the human health or safety, native vegetation or wildlife, or the environment.
(d) Hazardous Material. Licensee shall not cause, nor shall Licensee allow any of its Agents or Invitees (defined in Section 21 [Indemnity] below) to cause, any Hazardous Material to be brought upon, kept, used, stored, generated, released, or disposed of in, on, under, or about the Combined License Area, or transported to, from, or over the Combined License Area. Licensee shall immediately notify City when Licensee learns of, or has reason to believe that, a release of Hazardous Material has occurred in, on, under, or about any part of the Combined License Area.
Licensee shall further comply with all applicable Laws requiring notice of such releases or threatened releases to governmental agencies, and shall take all action necessary or desirable to mitigate the release or minimize the spread of contamination. If Licensee or its Agents or Invitees cause a release of Hazardous Material, Licensee shall promptly return the Combined License Area to the condition immediately prior to the release, without cost to City, in accordance with all Laws, and using the highest and best technology available. In connection with such remedial action, Licensee shall afford City a full opportunity to participate in any discussion or negotiations with governmental agencies and environmental consultants regarding any settlement agreement, cleanup or abatement agreement, consent decree, or other compromise proceeding involving Hazardous Material, and any other abatement or cleanup plan, strategy, and procedure. For purposes of this License, “ Hazardous Material ” means material that, because of its quantity, concentration, or physical or chemical characteristics, is at any time now or hereafter deemed by any federal, state, or local governmental authority to pose a present or potential hazard to public health, welfare, or the environment. Hazardous Material includes the following: any material or substance defined as a “hazardous substance, pollutant or contaminant” pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 16 Rev August 2020
42 U.S.C. Sections 9601 et seq., or pursuant to Section 25316 of the California Health & Safety Code or any other federal, state, or local Law; a “hazardous waste” listed pursuant to Section 25140 of the California Health & Safety Code; any asbestos and asbestos containing materials whether or not such materials are part of the Combined License Area or are naturally occurring substances in the Combined License Area; and any petroleum, including crude oil or any crude-oil fraction, natural gas, or natural gas liquids, provided, the foregoing shall not prohibit Licensee from traversing to, from, and across the Combined License Area in standard motor vehicles that do not exceed the weight limitations set forth below. The term “ release” or “threatened release” when used with respect to Hazardous Material shall include any actual or imminent spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing in, on, under, or about the Combined License Area. Notwithstanding any contrary provision contained in this License, Licensee will not be responsible for any release of Hazardous Materials to the extent caused by any act or omission of the City. (e) Nuisances. Licensee shall not conduct any activities in, on, under, or about the Combined License Area that constitute waste, nuisance, or unreasonable annoyance (including emission of objectionable odors, noises, or lights) to City, to the owners or occupants of neighboring property, or to the public, or that constitute waste or nuisance per se. (f) Damage. Licensee shall not do anything in, on, under, or about the Combined License Area that could cause damage to or interference with any pipelines, facilities, or other property located in, on, under, or about the Combined License Area. Licensee will compensate City for any and all damage caused to the Combined License Area and City facilities resulting from the activities of Licensee and its Agents and Invitees, including damage resulting from defective work.
(g) Use of Adjoining Land . Licensee acknowledges that the privilege given under this License shall be limited strictly to the Combined License Area. Licensee shall not traverse over or otherwise use any adjoining lands of City.
(h) Ponding; Water Courses. Licensee shall not cause any ponding on the Combined License Area or any flooding on adjacent land. Licensee shall not engage in any activity that causes any change, disturbance, fill, alteration, or impairment to the bed, bank, or channel of any natural water course, wetland, or other body of water on, in, under, or about the Combined License Area, nor shall Licensee engage in any activity that could pollute or degrade any surface or subsurface waters or result in the diminution or drainage of such waters. (i) Heavy Equipment and Vehicles . To prevent damage to City’s underground pipelines, Licensee’s use of vehicles and equipment within twenty feet (20’) of each side of the centerline of any City pipeline (measured on the surface) shall be subject to the following restrictions:
(i) The depth of soil cover over the tops of City’s pipelines must be at least three feet (3’) for steel cylinder pipe and four feet (4’) for reinforced pre-stressed concrete cylinder pipe to accommodate the loading defined in subsection (ii) below. If any equipment with axle loading exceeds the loads stated in subsection (ii) below or if the depth of soil cover is less than stated above, Licensee shall submit to the SFPUC for review and approval, at the SFPUC’s sole discretion, engineering calculations prepared by a licensed Professional Engineer licensed in California showing that City’s pipelines will not be adversely affected by Licensee’s proposed 17 Rev August 2020
activities. If City’s pipelines may be adversely affected, Licensee shall submit remedial measures for City’s approval to ensure that no adverse effect will occur. (ii) The effects of vehicle and equipment loads to the pipeline must not exceed the effects of the “AASHTO Standard H-10 Loading.” H-10 loading is defined as loading caused by a two-axle truck with a gross weight of ten tons (20,000 lbs.), axles fourteen feet (14’) apart, and rear axle carrying eight tons (16,000 lbs.). Licensee shall be responsible for providing the SFPUC adequate evidence that its equipment and vehicles meet the foregoing requirements. (iii) Licensee shall not use vibrating compaction equipment without the SFPUC’s prior written approval, which approval may be given or withheld at the SFPUC’s sole discretion.
(iv) If the depth of the soil cover over the pipeline (determined by potholing or other proof procedure) is less than the minimum stated in subsection (i) above, unless an alternate method is approved by the SFPUC in writing, all excavation and grading over the pipeline shall be performed manually. For any machinery or equipment excavation and grading over and/or within twenty feet (20’) of each side of the centerline of the pipeline (measured on the surface), Licensee shall submit a written proposal together with all supporting calculations and data to the SFPUC for review and approval. In any case, the two feet (2’) of soil around the pipeline shall be removed manually or by other methods approved by the SFPUC with due care as provided in Section 7(e) [Exercise of Due Care] above.
9. License Fee(s) . Without limiting its right to revoke this License or any of its other rights under this License, at any time, upon not less than thirty (30) days’ written notice to Licensee, City may charge a use fee for the privileges granted by this License if City establishes a general policy for charging fees for the use(s) permitted by this License, and City may increase such fee from time to time in accordance with such policy.
10. Required Insurance Coverages . Licensee’s compliance with the provisions of this Section 10 shall in no way relieve or decrease Licensee’s indemnification or other obligations under this License. Licensee must maintain in force for the use of the Combined License Area, during the full term of this License, insurance in the amounts and coverages listed below. In addition, Licensee shall cause each Agent (defined in Section 21 [Indemnity] below) performing work on the Combined License Area to procure and keep in effect during the course of such work appropriate amounts of insurance and add City as additional insureds for those respective policies. (a) Commercial General Liability Insurance with limits not less than $3,000,000 each occurrence for Bodily Injury and Property Damage, including Contractual Liability, Personal Injury, Independent Contractors, Explosion, Collapse, and Underground (XCU), Broad Form Property Damage and Products, and Completed Operations. (b) Commercial Automobile Liability Insurance with limits not less than $1,000,000 each occurrence, “Combined Single Limit” for Bodily Injury and Property Damage, including Owned, Non-Owned, and Hired auto coverage, as applicable. (c) Workers’ Compensation, in statutory amounts, with Employers’ Liability Limits not less than $1,000,000 each accident, injury, or illness. 18 Rev August 2020
(d) Additional Insured Endorsements.
(i) The Commercial General Liability policy must be endorsed to name as Additional Insured the City and County of San Francisco, its Officers, Agents, and Employees. (ii) The Commercial Automobile Liability Insurance policy must be endorsed to name as Additional Insured the City and County of San Francisco, its Officers, Agents, and Employees.
(e) Waiver of Subrogation Endorsements. The Workers’ Compensation policy(ies) and all Liability Policies referenced above shall be endorsed with a waiver of subrogation in favor of City for all work performed by Licensee or its Agents. (f) Primary Insurance Endorsements.
(i) The Commercial General Liability policy shall provide that such policies are primary insurance to any other insurance available to the Additional Insureds, with respect to any claims arising out of this License, and that the insurance applies separately to each insured against whom claim is made or suit is brought.
(ii) The Commercial Automobile Liability Insurance policy shall provide that such policies are primary insurance to any other insurance available to the Additional Insureds, with respect to any claims arising out of this License, and that the insurance applies separately to each insured against whom claim is made or suit is brought. (iii) Such policies shall also provide for severability of interests and that an act or omission of one of the named insureds which would void or otherwise reduce coverage shall not reduce or void the coverage as to any insured, and shall afford coverage for all claims based on acts, omissions, injury, or damage that occurred or arose (or the onset of which occurred or arose) in whole or in part during the policy period.
(g) Other Insurance Requirements.
(i) Thirty (30) days’ advance written notice shall be provided to City of cancellation, intended non-renewal, or reduction in coverages, except for non-payment for which no less than ten (10) days’ notice shall be provided to City. Notices shall be sent to the City address set forth in Section 31 [Notices].
(ii) Should any of the required insurance be provided under a claims-made form, Licensee shall maintain such coverage continuously throughout the term of this License and, without lapse, for a period of three years beyond the expiration of this License, to the effect that, should occurrences during the License term give rise to claims made after expiration of the License, such claims shall be covered by such claims-made policies. (iii) Should any of the required insurance be provided under a form of coverage that 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 be double the occurrence or claims limits specified above. 19 Rev August 2020
(iv) Should any required insurance lapse during the term of this License, requests for payments originating after such lapse shall not be processed until City receives satisfactory evidence of reinstated coverage as required by this License, effective as of the lapse date. If insurance is not reinstated, City may, at its sole option, terminate this License effective on the date of such lapse of insurance.
(v) Prior to the Commencement Date of this License, Licensee shall furnish to City certificates of insurance and additional insured policy endorsements with insurers with ratings comparable to A-, VIII or higher, that are authorized to do business in the State of California, and that are satisfactory to City, in form evidencing all coverages set forth above. Licensee and its contractors shall submit or cause their respective insurance brokers to submit requested information through the Exigis insurance verification program designated by City or any successor program used by City for verification of Licensee and contractor insurance coverage. Approval of the insurance by City shall not relieve or decrease Licensee’s liability hereunder. If Licensee shall fail to procure such insurance, or to deliver such policies or certificates, at its option, City may procure the same for the account of Licensee, and Licensee shall reimburse City for any costs so paid by City within five (5) business days after delivery to Licensee of bills therefor. (vi) If Licensee will use any subcontractor(s) to perform the Permitted Acts, Licensee shall require the subcontractor(s) to provide all necessary insurance and to name the City and County of San Francisco, its officers, agents and employees, and the Licensee as additional insureds.
(vii) Upon City’s request, Licensee and City shall periodically review the limits and types of insurance carried pursuant to this Section. If the general commercial practice in the City and County of San Francisco is to carry liability insurance in an amount or coverage materially greater than the amount or coverage then being carried by Licensee for risks comparable to those associated with the Combined License Area, then, at its sole discretion, City may require Licensee to increase the amounts or coverage carried by Licensee hereunder to conform to such general commercial practice.
(h) Self-Insurance.
Licensee shall have the right to self-insure with respect to any of the insurance requirements required under this License, to the extent permitted by applicable law. If Licensee elects to self-insure with respect to any of the insurance requirements required under this License, before the Commencement Date and upon written request by the SFPUC, within thirty (30) days of the commencement of each year thereafter, Licensee shall submit to the SFPUC a certificate of self-insurance signed by a duly authorized representative of Licensee, such certificate evidencing that Licensee’s self-insurance program is adequately funded, in full force and effect and in compliance with and subject to all the terms, agreements, covenants, conditions and provisions of this License. If Licensee elects to self-insure, Licensee shall give City prompt written notice of any significant change in or the depletion of its self-insurance fund. Notwithstanding the foregoing, Licensee is also responsible for causing any contractors, subcontractors, and/or Agents to maintain commercially reasonable insurance coverages and coverage limits as required under this License.
Any deductibles or self-insured retentions must be declared. All deductibles and self-insured retentions shall be paid by Licensee.
20 Rev August 2020
With respect to any claim, loss, or liability that would have been covered by the insurance policies (including the status as an “additional insured” thereunder of City, the SFPUC, and their respective Agents and Employees) required by this License to be maintained by Licensee but within the self- insured retention or deductible amount, Licensee shall cover such claim, loss, or liability on the same basis as the insurance arrangements or deductibles on such insurance policies, including such insurance carrier responsibility to protect City, the SFPUC, and their respective Agents and Employees as an “additional insured.”
11. Compliance with Laws .
(a) At its expense, Licensee shall conduct and cause to be conducted all activities on the Combined License Area permitted by this License in a safe and reasonable manner and in compliance with all laws, statutes, ordinances, rules, regulations, policies, orders, edicts, and the like (including, without limitation, the Americans with Disabilities Act (“ADA”) codified at Title 42 U. S.C. 12-101 and the regulations issued thereunder, and any other applicable disability access ordinances, laws and regulations, fire safety laws, ordinances or regulations collectively the “Disability and Safety Regulations ”) (collectively, “ Laws”) of any governmental or other regulatory entity with jurisdiction and all covenants, restrictions, and provisions of record, whether presently in effect or subsequently adopted and whether or not in the contemplation of the parties. (b) Licensee shall be responsible for causing all improvements and alterations installed by or on behalf of Licensee (including, without limitation, the Facilities and those improvements and alterations that predate this License) to be installed and maintained, in compliance with all Disability and Safety Regulations, and Licensee shall indemnify, defend, and hold City harmless from and against any and all claims or causes of action asserting (i) that any improvements or alterations installed by or on behalf of Licensee, regardless of whether such improvements or alternations predate this License, have caused the Combined License Area to be in violation of any Disability and Safety Regulations, or (ii) a cause of action or claim of violation of any applicable Disability and Safety Regulations resulting from or relating to any improvements or alterations undertaken by Licensee or on behalf of Licensee. Licensee’s obligations under this Section shall survive any revocation of this License.
(c) In the event Licensee receives a notice from any governmental agency or is otherwise made aware that any improvement or alteration on the Combined License Area, including, without limitation, the Bridge and the ADA Ramps, is in violation of any Disability and Safety Regulations, Licensee shall immediately inform City and provide City a copy of such notice or documents informing Licensee of such violation. Licensee shall, at is sole cost and expense, and without cost to City, address any such violations in accordance with such notice and shall keep the City abreast of such negotiations and obtain the City’s consent prior to performing any necessary repairs.
(d) At its sole expense, Licensee shall procure and maintain in force at all times during its use of the Combined License Area any and all business and other licenses or approvals necessary to conduct the activities allowed by this License. (e) City is entering into this License in its capacity as a property owner with a proprietary interest in the Combined License Area and not as a regulatory agency with police powers. No approval by City for purposes of this License shall be deemed to constitute approval of any federal, state, City, or other local regulatory authority with jurisdiction, and nothing in this 21 Rev August 2020
License shall limit Licensee’s obligation to obtain all such regulatory approvals at Licensee’s sole cost, or limit in any way City’s exercise of its police powers.
12. Covenant to Maintain License Area . Throughout the term of this License, at its sole cost, Licensee shall maintain the Combined License Area, including, without limitation, the Bridge and other Permitted Improvements, at all times in a good, clean, safe, secure, sanitary, and sightly condition, so far as the Combined License Area may be affected by Licensee’s activities under this License.
13. Monuments.
(a) By its execution and delivery of this License, Licensee acknowledges that the monuments shown on the attached Exhibit B, if any, are in place and in good condition. During the installation of any permitted Facilities or alterations of, the Combined License Area pursuant to this License and at all times during Licensee’s use of the Combined License Area, Licensee shall protect and safeguard City’s monuments. Licensee shall promptly notify City if Licensee becomes aware of any change in the condition of City’s monuments, regardless of the cause of such change.
(b) If Licensee damages a monument necessitating resurvey, repair, or replacement, as determined by City at its sole discretion, Licensee shall survey, file a land surveyor’s map in the Official Records of the County of Santa Clara, and install a replacement monument within thirty (30) days of completion of work authorized under this License, all at Licensee’s expense and to City’s satisfaction. A recorded surveyor’s map shall be furnished by Licensee to the SFPUC for its records.
(c) During the term of this License, City may replace missing monuments or install new monuments. When City replaces missing monuments or installs new monuments, City shall give Licensee written notice of such replacement or installation. Upon deposit of such notice in the U.S. mail by City, postage prepaid, Licensee shall assume the protection and replacement responsibilities set forth in this License.
(d) Notwithstanding any contrary provision contained in this License, Licensee will not be responsible for any damage, destruction or displacement of monuments caused by City’s own acts or omissions.
14. Removal or Alteration of Facilities or Improvements . Without limiting City’s rights under this License, at City’s written request, Licensee shall promptly alter or remove, at its sole expense, any and all Facilities, improvements, plantings, or other property installed or placed in, on, under, or about the Combined License Area by or on behalf of Licensee (including any improvements, plantings, or other property that predate this License), as may be necessary to avoid any actual or potential interference with the installation, construction, maintenance, operation, repair, replacement, or removal of any of City’s pipelines, power lines, facilities, or other structures now or later constructed or with any other operations or land uses by City. In the request, City may specify reasonable time limits for completion of the work. If, after such written notice, Licensee fails to complete the requested work within the prescribed time limits, City may perform the requested work and charge Licensee all costs and expenses so incurred by City. Such amount shall be due and payable upon City’s demand. In the event of an emergency, at City’s sole option, at Licensee’s sole expense, and without notice, City may, alter, remove, or protect any and all 22 Rev August 2020
facilities, improvements, plantings, or other property installed or placed in, on, under, or about the Combined License Area by Licensee. Upon City’s written or oral notice that an emergency exists, the owner of such utility facilities shall take immediate action at its sole expense to protect, remove, or relocate such facilities as required by City to meet the emergency.
15. Interruption or Disruption of License Area . Without limiting City’s rights under this License or any applicable Laws, if Licensee’s use of the Combined License Area is interrupted or disrupted for any reason in connection with any SFPUC request for removal or alteration of Licensee’s Facilities located on the Combined License Area pursuant to Section 14 [Removal or Alteration of Facilities] above, at its sole cost, Licensee shall be responsible for: (a) any and all costs of alteration, removal, and/or restoration of Licensee’s Facilities or other improvements or alterations to a condition similar to that which existed prior to such interruption, disruption, alteration, or removal, and (b) the implementation or satisfaction of any mitigation measures or obligations that may arise under any applicable Laws, including the California Environmental Quality Act (“CEQA”), related to any interruption or disruption of Licensee’s use of the Combined License Area. City shall not be responsible for mitigation of any potential recreational use impacts or other impacts associated with any interruption or disruption of use of the Combined License Area, or any related costs. If Licensee fails to promptly perform its obligations under this Section, at its sole option, City may elect to terminate this License immediately by written notice, or to exercise any and all other rights or remedies available to City under this License or at law, including the rights set forth in Section 19 [City’s Right to Cure Defaults by Licensee] of this License.
City would not be willing to give this License in the absence of Licensee’s assurances under this Section 15, and Licensee expressly assumes any and all liability or obligations that may arise under this Section 15.
16. Signs . In addition to Licensee’s obligations under Section 5(a) [Educational Signs] above, City, at its sole discretion, may require Licensee to install signs with language required by the SFPUC. Except (a) as expressly authorized under this Section 16, (b) as expressly authorized under Section 4 [Permitted Encroachments] or (c) for any pipeline markers required by City or any regulatory agency with jurisdiction, Licensee shall not place, erect, or maintain any sign, advertisement, banner, or similar object in, on, or about the Combined License Area without City’s prior written consent, which City may give or withhold at its sole discretion; provided, however, that, without City’s prior written consent, if necessary for Licensee’s construction use, Licensee may place in the Combined License Area a temporary sign of less than thirty (30) days’ duration that does not penetrate the ground surface.
17. Surrender. Upon the expiration of this License or within ten (10) days after any sooner revocation or other termination of this License, Licensee shall surrender the Combined License Area in the same condition as received, and broom clean, free from hazards, and clear of all debris.
At such time, Licensee shall remove all of its property from the Combined License Area and all signs other than the Educational Signs and, upon City’s request, the Facilities and any other structures, improvements, or alterations placed on the Combined License Area during the term of this License, and shall repair, at its cost, any damage to the Combined License Area caused by such removal. Licensee’s obligations under this Section shall survive any termination of this License.
23 Rev August 2020
18. Repair of Damage . If any portion of the Combined License Area or any City property located on or about the Combined License Area is damaged or threatened by any of the activities conducted by Licensee or anyone acting by or through Licensee, at its sole cost, Licensee shall immediately notify City of such damage or threat by (a) telephoning the SFPUC’s dispatch operator as specified in Section 33(b) [Emergency Contacts] below, and (b) providing written notice in accordance with Section 33(a) [Notices] below. City may, but shall not be obligated to, remedy such damage or threat at Licensee’s sole cost, or City may elect to witness Licensee’s repair work. If City elects not to remedy such damage or threat, Licensee shall repair any and all such damage and restore the Combined License Area or property to its previous condition subject to City’s inspection, review, and approval. City has no responsibility or liability of any kind with respect to any utilities that may be on, in, or under the Combined License Area. Licensee is solely responsible for the location of any such utilities and other existing facilities and their protection from damage. Licensee shall be solely responsible to arrange and pay directly for any utilities or services necessary for its activities pursuant to this License; provided, Licensee shall obtain City’s prior written approval to the provision of such services or utilities in, on, under, or through the Combined License Area.
19. City’s Right to Cure Defaults by Licensee . If Licensee fails to perform any of its obligations under this License to restore the Combined License Area, remove or alter any of Licensee’s Facilities, or improvements or alterations, or repair damage, or if Licensee defaults in the performance of any of its other obligations under this License, then, at its sole option, City may remedy such failure for Licensee’s account and at Licensee’s expense by providing Licensee with three (3) days’ prior written or oral notice of City’s intention to cure such default (except that no such prior notice shall be required in the event of an emergency as determined by City). Such action by City shall not be construed as a waiver of any of City’s rights or remedies under this License, and nothing in this License shall imply any duty of City to do any act that Licensee is obligated to perform. Licensee shall pay to City upon demand, all costs, damages, expenses, or liabilities incurred by City, including reasonable attorneys’, experts’, and consultants’ fees, in remedying or attempting to remedy such default. Licensee’s obligations under this Section shall survive the termination of this License.
20. No Costs to City . Licensee shall bear all costs or expenses of any kind or nature in connection with its use of the Combined License Area, and shall keep the Combined License Area free and clear of any liens or claims of lien arising out of or in any way connected with its use of the Combined License Area.
21. Indemnity . Licensee shall indemnify, defend, reimburse, and hold harmless City, its officers, agents, employees, and contractors, and each of them, from and against any and all demands, claims, legal or administrative proceedings, losses, costs, penalties, fines, liens, judgments, damages, and liabilities of any kind (“ Claims”), arising in any manner out of (a) any injury to or death of any person or damage to or destruction of any property occurring in, on, or about any part of the Combined License Area, whether such injury, death, damage, or destruction is caused by the person or property of Licensee, its officers, directors, members, employees, agents, consultants, contractors, or subcontractors (collectively, “Agents”), its invitees, guests, or business visitors (collectively, “ Invitees”), or third persons, relating to any use or activity under this License, (b) any failure by Licensee to faithfully observe or perform any of the terms, covenants, or conditions of this License, (c) the use of the Combined License Area, including, without limitation, the Bridge, the other Permitted Improvements and any other improvements 24 Rev August 2020
installed by or on behalf of Licensee that predate this License, or any activities conducted on the Combined License Area by Licensee, its Agents, or Invitees, (d) any release or discharge, or threatened release or discharge, of any Hazardous Material caused or allowed by Licensee, its Agents, or Invitees, on, in, under, or about the Combined License Area, any improvements or into the environment, or (e) any failure by Licensee to faithfully observe or perform any terms, covenants, or conditions of the Recorded Documents to the extent that such terms, covenants, or conditions relate to or are triggered by the work to be performed or Facilities or other improvements or alterations installed pursuant to this License; except solely to the extent of Claims resulting directly from the willful misconduct of City or City’s authorized representatives. In addition to Licensee’s obligation to indemnify City, Licensee has an immediate and independent obligation to defend City from any claim that actually or potentially falls within this indemnity provision even if such allegation is or may be groundless, fraudulent, or false, which obligation arises at the time such claim is tendered to Licensee by City and continues at all times thereafter.
The foregoing indemnity shall include reasonable attorneys’, experts’, and consultants’ fees and costs, investigation and remediation costs, and all other reasonable costs and expenses incurred by the indemnified parties, including damages for decrease in the value of the Combined License Area and claims for damages or decreases in the value of adjoining property. Licensee’s obligations under this Section shall survive the expiration or other termination of this License.
22. Waiver of Claims .
(a) Neither City nor any of its commissions, departments, boards, officers, agents, or employees shall be liable for any damage to the property of Licensee, its officers, agents, employees, contractors, or subcontractors, or their employees, or for any bodily injury or death to such persons, resulting or arising from the condition of the Combined License Area or its use by Licensee, or Licensee’s Agents or Invitees.
(b) Because this License is freely revocable by City, Licensee expressly assumes the risk of making any expenditure in connection with this License, even if such expenditures are substantial. Without limiting any indemnification obligations of Licensee or other waivers contained in this License and as a material part of the consideration for this License, Licensee fully RELEASES, WAIVES, AND DISCHARGES forever any and all claims, demands, rights, and causes of action against, and covenants not to sue, City, its departments, commissions, officers, directors, and employees, and all persons acting by, through, or under each of them, under any present or future Laws, including any claim for inverse condemnation or the payment of just compensation under law or equity, if City exercises its right to revoke or terminate this License. (c) Licensee acknowledges that it will not be a displaced person at the time this License is terminated or revoked or expires by its own terms, and Licensee fully RELEASES, WAIVES, AND DISCHARGES forever any and all claims, demands, rights, and causes of action against, and covenants not to sue, City, its departments, commissions, officers, directors, and employees, and all persons acting by, through, or under each of them, under any present or future Laws, including any and all claims for relocation benefits or assistance from City under federal and state relocation assistance laws.
(d) The fees payable pursuant to this License do not take into account any potential City liability for any consequential or incidental damages including lost profits and arising out of disruption to or any Facilities or other improvements or alterations installed pursuant to this License; or Licensee’s uses of the Combined License Area permitted by this License. City would 25 Rev August 2020
not be willing to grant this License in the absence of a waiver of liability for consequential or incidental damages resulting from the acts or omissions of City or its departments, commissions, officers, directors, and employees, and by all persons acting by, through, or under each of them, and Licensee expressly assumes the risk with respect thereto. Accordingly, without limiting any indemnification obligations of Licensee or other waivers contained in this License and as a material part of the consideration for this License, Licensee fully RELEASES, WAIVES, AND DISCHARGES forever any and all claims, demands, rights, and causes of action against City for consequential and incidental damages (including lost profits) and covenants not to sue for such damages City, its departments, commissions, officers, directors, and employees, and all persons acting by, through, or under each of them, arising out of this License or the uses authorized under this License, including any interference with uses conducted by Licensee pursuant to this License, regardless of the cause, and whether or not due to the negligence of City or its departments, commissions, officers, directors, and employees, and all persons acting by, through, or under each of them, except for the gross negligence and willful misconduct of City or its departments, commissions, officers, directors, and employees, and all persons acting by, through, or under each of them.
(e) As part of Licensee’s agreement to accept the Combined License Area in its “As Is” condition as provided below, and without limiting such agreement, Licensee, on behalf of itself and its successors and assigns, waives its right to recover from, and forever releases and discharges, City and its officers, agents, and employees, and their respective heirs, successors, administrators, personal representatives, and assigns, from any and all Claims, whether direct or indirect, known or unknown, foreseen and/or unforeseen, that may arise on account of or in any way be connected with the physical or environmental condition of the Combined License Area and any related improvements or any applicable Laws or the suitability of the Combined License Area for Licensee’s intended use.
(f) In connection with the foregoing releases, Licensee acknowledges that it is familiar with Section 1542 of the California Civil Code, which reads:
A general release does not extend to claims that the creditor or releasing party 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.
Licensee acknowledges that the releases contained in this License include all known and unknown, disclosed and undisclosed, and anticipated and unanticipated claims. Licensee realizes and acknowledges that it has agreed upon this License in light of this realization and, being fully aware of this situation, it nevertheless intends to waive the benefit of California Civil Code Section 1542, or any statute or other similar law now or later in effect. The releases contained in this License shall survive any termination of this License.
23. As Is Condition of License Area; Disability Access; Disclaimer of Representations .
Licensee accepts the Combined License Area in its “AS IS” condition, without representation or warranty of any kind by City, its departments, commissions, officers, directors, and employees, and all persons acting by, through, or under each of them, and subject to all applicable Laws governing the use of the Combined License Area. Without limiting the foregoing, this License is made subject to any and all existing and future covenants, conditions, restrictions, easements, encumbrances, and other title matters affecting the Combined License Area, whether foreseen or 26 Rev August 2020
unforeseen, and whether such matters are of record or would be disclosed by an accurate inspection or survey.
City discloses (i) City has not been issued a disability access inspection certificate as described in California Civil Code Section 55.53(e), (ii) pursuant to California Civil Code Section 1938, that Landlord has not ordered, performed, or caused to be performed, a Certified Access Specialist (“ CASp”) inspection of the Combined License Area (sometimes referred to as “premises” or “subject premises” for the herein disclosures), and (iii) City makes the following statutory disclosure per California Civil Code Section 1938 ( required “CASp Disclosure”):
“A Certified Access Specialist (“ CASp”) can inspect the subject premises and determine whether the subject premises comply with all of the applicable construction-related accessibility standards under state law. Although state law does not require a CASp inspection of the subject premises, the commercial property owner or lessor may not prohibit the lessee or tenant from obtaining a CASp inspection of the subject premises for the occupancy or potential occupancy of the lessee or tenant, if requested by the lessee or tenant. The parties shall mutually agree on the arrangements for the time and manner of the CASp inspection, the payment of the fee for the CASp inspection and the cost of making any repairs necessary to correct violations of construction- related accessibility standards within the premises.”
24. No Assignment . This License is personal to Licensee and shall not be assigned, conveyed, or otherwise transferred by Licensee under any circumstances. Any attempt to assign, convey, or otherwise transfer this License shall be null and void and cause the immediate termination and revocation of this License.
25. Cessation of Use . Licensee will not terminate its activities on the Combined License Area pursuant to this License without prior written notice to City.
26. No Joint Ventures or Partnership; No Authorization . This License does not create a partnership or joint venture between City and Licensee as to any activity conducted by Licensee on, in, or relating to the Combined License Area. Licensee is not a state actor with respect to any activity conducted by Licensee on, in, under or around the Combined License Area. City’s provision of this License does not constitute City’s authorization or approval of any activity conducted by Licensee on, in, around, or relating to the Combined License Area.
27. MacBride Principles - Northern Ireland . The provisions of San Francisco Administrative Code Section 12F are incorporated into and made a part of this License by this reference. By signing this License, Licensee confirms that Licensee 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.
28. Non-Discrimination in City Contracts and Benefits Ordinance . (a) Covenant Not to Discriminate. In the performance of this License, Licensee shall not discriminate against any employee of, any City employee working with Licensee, or applicant for employment with, Licensee, or against any person seeking accommodations, advantages, facilities, privileges, services, 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, 27 Rev August 2020
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.
(b) Other Subcontracts. Licensee shall include in all subcontracts relating to the Combined License Area a non-discrimination clause applicable to such subcontractor in substantially the form of Section 28 (a) [Covenant Not to Discriminate] above. In addition, Licensee shall incorporate by reference in all subcontracts the provisions of Sections 12B.2(a), 12B.2(c)-(k), and 12C.3 of the San Francisco Administrative Code and shall require all subcontractors to comply with such provisions. Licensee’s failure to comply with the obligations in this subsection shall constitute a material breach of this License. (c) Non-Discrimination in Benefits. Licensee does not as of the date of this License and will not during the term of this License, in any of its operations in San Francisco, on real property owned by City, or where the work is being performed for City or elsewhere within the United States, discriminate in the provision of bereavement leave, family medical leave, health benefits, membership or membership discounts, moving expenses, pension and retirement benefits, or travel benefits, as well as any benefits other than the benefits specified above, between employees with domestic partners and employees with spouses, and/or between the domestic partners and spouses of such employees, where the domestic partnership has been registered with a governmental entity pursuant to state or local law authorizing such registration, subject to the conditions set forth in Section 12B.2(b) of the San Francisco Administrative Code. (d) Condition to License. As a condition to this License, Licensee shall execute the “Chapter 12B Declaration: Nondiscrimination in Contracts and Benefits” form (Form CMD-12B- 101) with supporting documentation and secure the approval of the form by the San Francisco Contract Monitoring Division.
(e) Incorporation of Administrative Code Provisions by Reference. The provisions of Chapters 12B and 12C of the San Francisco Administrative Code relating to non-discrimination by parties contracting for the license of City property are incorporated in this Section by reference and made a part of this License as though fully set forth. Licensee shall comply fully with and be bound by all of the provisions that apply to this License under such Chapters of the San Francisco Administrative Code, including the remedies provided in such Chapters. Without limiting the foregoing, Licensee understands that pursuant to Section 12B.2(h) of the San Francisco Administrative Code, a penalty of $50 for each person for each calendar day during which such person was discriminated against in violation of the provisions of this License may be assessed against Licensee and/or deducted from any payments due Licensee.
29. Reserved.
30. Notification of Prohibition on Contributions . Licensee 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, 28 Rev August 2020
at any time from the commencement of negotiations for the contract until the later of either the termination of negotiations for such contract or twelve months after the date the contract is approved. Licensee 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 have a total anticipated or actual value of $100,000 or more. Licensee further acknowledges that (i) the prohibition on contributions applies to each Licensee; each member of Licensee’s board of directors, and Licensee’s chief executive officer, chief financial officer, and chief operating officer; any person with an ownership interest of more than ten percent (10%) in Licensee; any subcontractor listed in the contract; and any committee that is sponsored or controlled by Licensee; 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.
31. 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), Licensee shall not use or incorporate any tropical hardwood, tropical hardwood wood product, virgin redwood, or virgin redwood wood product in the performance of this License.
32. Taxes, Assessments, Licenses, License Fees, and Liens. (a) Licensee recognizes and understands that this License may create a possessory interest subject to property taxation and that Licensee may be subject to the payment of property taxes levied on such interest. Licensee further recognizes and understands that any transfer or assignment permitted under this License and any exercise of any option to renew or extend this License may constitute a change in ownership for purposes of property taxation and therefore may result in a revaluation of any possessory interest created hereunder. (b) Licensee shall pay taxes of any kind, including possessory interest taxes, that may be lawfully assessed on the interest created by this License and shall pay all other taxes, excises, licenses, permit charges, and assessments based on Licensee’s usage of the Combined License Area that may be imposed upon Licensee by law, all of which shall be paid when the same become due and payable and before delinquency.
(c) Licensee shall not allow or suffer a lien for any such taxes or charges to be imposed upon the Combined License Area or upon any equipment or property located on the Combined License Area without promptly discharging the same, provided that Licensee may contest the validity of the same by paying under protest or posting adequate (at City’s sole discretion) security during any such contest.
31 Rev August 2020
Ordinance: (i) provide for the use of pesticides only as a last resort, (ii) prohibit the use or application of pesticides on property owned by the City, except for pesticides granted an exemption under Section 303 of the IPM Ordinance (including pesticides included on the most current Reduced Risk Pesticide List compiled by City’s Department of the Environment), (iii) impose certain notice requirements, and (iv) require Licensee to keep certain records and to report to City all pesticide use at the Combined License Area by Licensee’s staff or contractors.
If Licensee or Licensee’s contractor will apply pesticides to outdoor areas at the Combined License Area, Licensee must first obtain a written recommendation from a person holding a valid Agricultural Pest Control Advisor license issued by the California Department of Pesticide Regulation (“ CDPR”) and any such pesticide application shall be made only by or under the supervision of a person holding a valid, CDPR-issued Qualified Applicator certificate or Qualified Applicator license. City’s current Reduced Risk Pesticide List and additional details about pest management on City property can be found at the San Francisco Department of the Environment website, http://sfenvironment.org/ipm.
37. Conflict of Interest . Licensee 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 Licensee becomes aware of any such fact during the term of this License, Licensee shall immediately notify City.
38. 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 License and any and all records, information, and materials submitted to City in connection with this License.
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.
Licensee authorizes City to disclose any records, information, and materials submitted to City in connection with this License.
39. Food Service and Packaging Waste Reduction . Licensee shall comply fully with and be bound by all of the provisions of the Food Service and Packaging Waste Reduction Ordinance, as set forth in San Francisco Environment Code Chapter 16, including the remedies provided therein, and implementing guidelines and rules. The provisions of Chapter 16 are incorporated into this License by this reference and made a part of this License as though fully set forth. Capitalized terms used in this Section that are not otherwise defined in this License have the same meaning assigned to such terms in San Francisco Environment Code, Chapter 16. Accordingly, Licensee acknowledges that City contractors, lessees, and licensees may not use Disposable Food Service Ware that contains Polystyrene Foam in City Facilities while performing under a City contract, lease, or license, and shall instead use suitable Biodegradable/Compostable or Recyclable Disposable Food Service Ware. This provision is a material term of this License.
40. Severability . If any provision of this License, or its application to any person, entity, or circumstance, shall be held to be invalid or unenforceable by a court of competent jurisdiction, the remainder of this License, or the application of such provision to persons, entities, or circumstances other than those as to which it is invalid or unenforceable, shall not be affected thereby, and each other provision of this License shall be valid and be enforceable to the fullest extent permitted by law, except to the extent that enforcement of this License without the invalidated provision would 32 Rev August 2020
be unreasonable or inequitable under all the circumstances or would frustrate a fundamental purpose of this License.
41. Cooperative Drafting . This License has been drafted through a cooperative effort of both Parties, and both Parties have had an opportunity to have the License reviewed and revised by legal counsel. No party shall be considered the drafter of this License, and no presumption or rule that an ambiguity shall be construed against the party drafting the clause shall apply to the interpretation or enforcement of this License.
42. Reserved .
43. San Francisco Packaged Water Ordinance . Licensee shall comply with San Francisco Environment Code Chapter 24 (“ Chapter 24”). Licensee shall not sell, provide or otherwise distribute Packaged Water, as defined in Chapter 24 (including bottled water), in the performance of this License or on City property unless Licensee obtains a waiver from the City’s Department of the Environment. If Licensee violates this requirement, the City may exercise all remedies in this License and the Director of the City’s Department of the Environment may impose administrative fines as set forth in Chapter 24.
44. General Provisions . (a) This License may be amended or modified only by a writing signed by City and Licensee. (b) No waiver by any party of any of the provisions of this License 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 License. (c) The exhibits referenced in and attached to this instrument are incorporated into this License. (d) This License contains the entire agreement between the Parties regarding the subject matter of this License, and all prior written or oral negotiations, discussions, understandings, and agreements are merged into this License. (e) The Section and other headings of this License are for convenience of reference only and shall be disregarded in the interpretation of this License. (f) Time is of the essence in all matters relating to this License. (g) This License shall be governed by California law and City’s Charter. (h) If either party commences an action against the other or a dispute arises under this License, the prevailing party shall be entitled to recover from the other reasonable attorneys’ fees and costs. For purposes of this License and the indemnifications set forth in this License, reasonable attorneys’ fees of City shall be based on the fees regularly charged by private attorneys in San Francisco with comparable experience notwithstanding City’s use of its own attorneys. (i) If Licensee consists of more than one person then the obligations of each person shall be joint and several. (j) Licensee may not record this License or any memorandum of this License. (k) Subject to the prohibition against assignments or other transfers by Licensee hereunder, this License shall be binding upon and inure to the benefit of the Parties and their respective heirs, representatives, successors, and assigns. (l) Any sale or conveyance of the property burdened by this License by City shall automatically revoke this License. (m) Notwithstanding anything to the contrary contained in this License, no officer or employee of City has authority to commit City to this License unless and until a resolution of the SFPUC shall have been duly adopted approving this License and authorizing the transaction contemplated by this License. Therefore, any of City’s obligations or liabilities pursuant to or under this License are contingent upon enactment of such a resolution, and this License shall be null and void if, at its sole discretion, the SFPUC does not approve this License. (n) Each of the persons executing this License on Licensee’s behalf do hereby represent and warrant that Licensee is a duly formed or organized (as applicable) and validly existing entity under the laws of California, that Licensee 33 Rev August 2020
is in good standing and qualified to do business in California (and covenants to maintain such status during the term of this License), that Licensee has full right and authority to enter into this License, and that each and all of the persons signing on behalf of Licensee are authorized to do so.
Upon City’s request, Licensee shall provide City with evidence reasonably satisfactory to City confirming the foregoing representations and warranties. (o) Except as expressly provided to the contrary, all approvals, consents, and determinations to be made by City under this License may be made at City’s sole and absolute discretion. (p) Whenever this License requires City’s or the SFPUC’s consent or approval, the General Manager of the SFPUC, or his or her designee, shall be authorized to provide such consent or approval, except as otherwise provided by applicable Laws, including City’s Charter, or by the SFPUC’s Real Estate Guidelines. No consent, approval, election, or option shall be effective unless given, made, or exercised in writing. (q) This License may be executed in two or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. (r) City and Licensee respectively agree to execute and deliver such further instruments and to take such further actions as City may reasonably request from time to time in order to carry out the provisions of this License. (s) Use of the word “including” or similar words will not be construed to limit any general term, statement, or other matter in this License, whether or not language of non-limitation, such as “without limitation” or similar words, are used.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS LICENSE,
NO OFFICER OR EMPLOYEE OF CITY HAS AUTHORITY TO COMMIT CITY TO THIS LICENSE UNLESS AND UNTIL CITY’S PUBLIC UTILITIES COMMISSION SHALL HAVE
DULY ADOPTED A RESOLUTION APPROVING THIS LICENSE AND AUTHORIZING THE TRANSACTIONS CONTEMPLATED IN THIS LICENSE. THEREFORE, ANY
OBLIGATIONS OR LIABILITIES OF CITY UNDER THIS LICENSE ARE CONTINGENT
UPON ADOPTION OF SUCH A RESOLUTION, AND THIS LICENSE SHALL BE NULL AND VOID IF CITY’S PUBLIC UTILITIES COMMISSION DO NOT APPROVE THIS LICENSE, AT THEIR RESPECTIVE SOLE DISCRETION. APPROVAL OF THIS LICENSE
BY ANY DEPARTMENT, COMMISSION, OR AGENCY OF CITY SHALL NOT BE
DEEMED TO IMPLY THAT SUCH RESOLUTION WILL BE ENACTED, NOR WILL ANY SUCH APPROVAL CREATE ANY BINDING OBLIGATIONS ON CITY.
[SIGNATURES ON FOLLOWING PAGE]
EXHIBIT A
Description of Pathway Area
Approximately 80,000 square feet of all that certain real property located in the City of Los Altos, County of Santa Clara, California, described as follows:
The Pathway Area consists of the entirety of SFPUC Parcel Nos. 236 and 237, according to SFPUC records and as shown on the attached Exhibit B and made a part of this License.
EXHIBIT B
Depiction of Combined License Area
[see attached]
Date 12/17/21 Author: H.Rodgers
EXHIBIT B-1
Depiction of 1961 Revocable Permit Area for Street and Sewer Crossings [see attached]
EXHIBIT B-2
Depiction of 1963 Revocable Permit Area for Street Crossing, Storm Drain and Fire Access Roadway
[see attached]
EXHIBIT B-3
Depiction of 1972 Revocable Permit Area for Street Widening and Landscaping [see attached]
EXHIBIT B-4
Engineering Drawings for 1974 Adobe Creek Pedestrian and Bicycle Bridge [see attached]
EXHIBIT B-5
Depiction of 1987 Revocable Permit Area for Bicycle Path and Landscaping [see attached]
EXHIBIT B-6
Depiction of 1985 Drawing for Added Permit Area
[see attached]
EXHIBIT C
Depiction of Maintenance Area
[see attached]
Date 01/19/22 Author: H.Rodgers
EXHIBIT D
Deeds
[see attached]
EXHIBIT E
SFPUC Vegetation Management Policy
[see attached]
AMENDMENT TO THE
RIGHT OF WAY INTEGRATED VEGETATION MANAGEMENT POLICY
Approved January 13, 2015
by
SFPUC Resolution No. 15 0014
12.000 RIGHT OF WAY INTEGRATED VEGETATION MANAGEMENT POLICY
12.001 General
The San Francisco Public Utilities Commission (SFPUC) is responsible for the delivery of potable water and the collection and treatment of wastewater for some 800,000 customers within the City of San Francisco; it is also responsible for the delivery of potable water to 26 other water retailers with a customer base of 1.8 million. The following policy is established to manage vegetation on the transmission, distribution and collection systems within the SFPUC Right of Way (ROW) so that it does not pose a threat or hazard to the systems integrity and infrastructure or impede utility maintenance and operations.
The existence of large woody vegetation 1, hereinafter referred to as vegetation, and water transmission lines within the ROW are not compatible and, in fact, are mutually exclusive uses of the same space.
Roots can impact transmission pipelines by causing corrosion. The existence of trees and other vegetation directly adjacent to pipelines makes emergency and annual maintenance very difficult, hazardous, and expensive, and increases concerns for public safety. The risk of fire within the ROW is always a concern and the reduction of fire ladder fuels within these corridors is another reason to modify the vegetation mosaic. In addition to managing vegetation in a timely manner to prevent any disruption in utility service, the SFPUC also manages vegetation on its ROW to comply with local fire ordinances enacted to protect public safety.
One of the other objectives of this policy is to reduce and eliminate as much as practicable the use of herbicides on vegetation within the ROW and to implement integrated pest management (IPM).
12.002 Woody Vegetation Management
1.0 Vegetation of any size or species will not be allowed to grow within certain critical portions of the ROW, pumping stations or other facilities as determined by a SFPUC qualified professional, and generally in accordance with the following guidelines.
1.1 Emergency Removal
SFPUC Management reserves the right to remove any vegetation without prior public notification that has been assessed by a SFPUC qualified professional as an immediate threat to transmission lines or other utility infrastructure, human life and property due to acts of God, insects, disease, or natural mortality.
1.2 Priority Removal
Vegetation that is within 15 feet of the edge of any pipe will be removed and the vegetative debris will be cut into short lengths and chipped whenever possible. Chips will be spread upon the site where the vegetation was removed. Material that cannot be chipped will be hauled away to a proper disposal site. 1 Woody vegetation is defined as all brush, tree and ornamental shrub species planted in (or naturally occurring in) the native soil having a woody stem that at maturity exceeds 3 inches in diameter.
If vegetation along the ROW is grouped in contiguous stands 2, or populations, a systematic and staggered removal of that vegetation will be undertaken to replicate a natural appearance. Initial removal3 will be vegetation immediately above or within 15 feet of the pipeline edges; secondary vegetation4 within 15 to 25 feet from pipelines will then be removed.
1.3 Standard Removal
Vegetation that is more than 25 feet from the edge of a pipeline and up to the boundary of the ROW will be assessed by a SFPUC qualified professional for its age and condition, fire risk, and potential impact to the pipelines. Based on this assessment, the vegetation will be removed or retained.
1.4 Removal Standards
Each Operating Division will develop its own set of guidelines or follow established requirements in accordance with local needs.
2.0 All stems of vegetation will be cut flush with the ground and where deemed necessary or appropriate, roots will be removed. All trees identified for removal will be clearly marked with paint and/or a numbered aluminum tag.
3.0 Sprouting species of vegetation will be treated with herbicides where practicable, adhering to provisions of Chapter 3 of the San Francisco Environment Code.
4.0 Erosion control measures, where needed, will be completed before the work crew or contractors leave the work site or before October 15 of the calendar year.
5.0 Department personnel will remove in a timely manner any and all material that has been cut for maintenance purposes within any stream channel.
6.0 All vegetation removal work and consultation on vegetation retention will be reviewed and supervised by a SFPUC qualified professional. All vegetation removal work and/or treatment will be made on a case
by case basis by a SFPUC qualified professional.
7.0 Notification process for areas of significant resource impact that are beyond regular and ongoing maintenance:
7.1 County/City Notification The individual Operating Division will have sent to the affected county/city a map showing the sections of the ROW which will be worked, a written description of the work to be done, the appropriate removal time for the work crews, and a contact person for more information. This should be done approximately 10 days prior to start of work. Each Operating Division will develop its own set of guidelines in accordance with local need. 2 A stand is defined as a community of trees possessing sufficient uniformity in composition, structure, age, arrangement, or condition to be distinguishable from adjacent forest communities to form a management unit. 3 Initial removal is defined as the vegetation removed during the base year or first year of cutting. 4 Secondary vegetation is defined as the vegetative growth during the second year following the base year for cutting.
7.2 Public Notification The Operating Division will have notices posted at areas where the vegetation is to be removed with the same information as above also approximately 10 days prior to removal. Notices will also be sent to all property owners within 300 feet of the removal site. Posted notices will be 11 by 17 inches in size on colored paper and will be put up at each end of the project area and at crossover points through the ROW. Questions and complaints from the public will be handled through a designated contact person. Each Operating Division will develop its own set of guidelines in accordance with local needs.
12.003 Annual Grass and Weed Management
Annual grasses and weeds will be mowed, disked, sprayed or mulched along the ROW as appropriate to reduce vegetation and potential fire danger annually. This treatment should be completed before July 30 of each year. This date is targeted to allow the grasses, forbs and weeds to reach maturity and facilitate control for the season.
12.004 Segments of ROW that are covered by Agricultural deed rights The only vegetation that may be planted within the ROW on those segments where an adjacent owner has Deeded Agricultural Rights will be: non
woody herbaceous plants such as grasses, flowers, bulbs, or vegetables.
12.005 Segments of ROW that are managed and maintained under a Lease or License Special allowance may be made for these types of areas, as the vegetation will be maintained by the licensed user as per agreement with the City, and not allowed to grow unchecked. Only shallow rooted plants may be planted directly above the pipelines.
Within the above segments, the cost of vegetation maintenance and removal will be borne by the tenant or licensee exclusively. In a like fashion, when new vegetative encroachments are discovered they will be assessed by a SFPUC qualified professional on a case by case basis and either be permitted
or proposed for removal.
The following is a guideline for the size at maturity of plants (small trees, shrubs, and groundcover) that may be permitted to be used as landscape materials. Note: All distance measurements are for mature trees and plants measured from the edge of the drip line to the edge of the pipeline.
Plants that may be permitted to be planted directly above existing and future pipelines: shallow rooted plants such as ground cover, grasses, flowers, and very low growing plants that grow to a maximum of one foot in height at maturity.
Plants that may be permitted to be planted 1525 feet from the edge of existing and future pipelines: shrubs and plants that grow to a maximum of five feet in height at maturity.
Plants that may be permitted to be planted 25 feet or more from the edge of existing and future pipelines: small trees or shrubs that grow to a maximum of twenty feet in height and fifteen feet in canopy width.
Trees and plants that exceed the maximum height and size limit (described above) may be permitted within a leased or licensed area provided they are in containers and are above ground. Container load and placement location(s) are subject to review and approval by the SFPUC.
Low water use plant species are encouraged and invasive plant species are not allowed.
All appurtenances, vaults, and facility infrastructure must remain visible and accessible at all times. All determinations of species acceptability will be made by a SFPUC qualified professional.
The above policy is for general application and for internal administration purposes only and may not be relied upon by any third party for any reason whatsoever. The SFPUC reserves the right at its sole discretion, to establish stricter policies in any particular situation and to revise and update the above policy at any time.
Illustration not to scale
25 feet
Water
Pipelines
End of SFPUC Right of Way
Grass, Flowers and Ground Cover Zone Small Shrub Zone Small Tree Zone 15 feet 10 feet
San Francisco Public Utilities Commission (SFPUC)
Right Of Way (ROW) Landscape Vegetation Guidelines
The following vegetation types are permitted on the ROW within the appropriate zones.
Plantings that may be
permitted 15–25 feet
from the edge of
existing and future
pipelines:
Shrubs and plants that
feet tall in height
at maturity.
Plantings that may be permitted
directly above existing and future
pipelines:
no more than one foot in height at
maturity.
Plantings that may be
permitted 25 feet or
more from the edge
of existing and future
pipelines:
Small trees or shrubs
that grow to a maximum
of twenty feet in height
canopy width or less.
EXHIBIT F
SFPUC Encroachment Policy
[see attached]
SFPUC RIGHT OF WAY ENCROACHMENT POLICY
2007
H:\sfagua\ROW\SFPUC Encroachment Policy Final.doc
1 As part of its utility system, the San Francisco Public Utilities Commission (SFPUC) operates and maintains approximately 1600 miles of water pipelines and tunnels, 160 miles of electrical transmission lines, 900 miles of sewer lines and other related appurtenances that run through real property (the “Right of Way”) located in San Francisco, San Mateo, Santa Clara, Alameda, Tuolumne, Stanislaus and San Joaquin counties. Most of the Right of Way is owned by the City and County of San Francisco (the “City”) in fee, although in some instances the City has only an easement interest for its right of way. Inside the City, most water and wastewater transmission lines are located within City streets.
Regardless of the nature of the City’s property rights, it is vitally important that the SFPUC protect its water, wastewater, and power transmission facilities and ensure immediate access to all facilities for maintenance, repair, security and replacement. It is also important that the right of way be maintained so as to minimize any potential landowner liability and to prepare for the possibility of future capital improvements to the right of way.
Increased urbanization and development around the water transmission line right of way in particular has led to an increase in the number of encroachments onto the right of way. Water transmission pipelines are those that move water to SFPUC’s wholesale customers located in Alameda, Santa Clara, San Mateo and to the City of San Francisco. These encroachments threaten access, impair new construction and maintenance efforts, and increase costs and potential liabilities. Houses, garages, driveways, fences, trees, landscaped areas, vehicles and other items currently encroach onto the right of way. The SFPUC has also noticed an increase in unauthorized uses such as temporary trespasses and garbage dumping. Therefore, on September 28, 1999, the San Francisco Public Utilities Commission adopted a Commercial Land Management Operating Manual that included a Right of Way (R/W) Encroachment Removal Policy published 12/14/01 and a R/W Vegetation Management Plan administered under the (R/W) Integrated Vegetation Management Policy attached hereto.
Since the original implementation of the R/W Encroachment Policy, security concerns have given additional impetus to the need to provide a safe and protected corridor for water transmission by the SFPUC. The SFPUC’s concern for safety and security provides an additional foundation for the strict implementation of this policy.
Because of the length of the right of way and the importance of the encroachment removal effort, the SFPUC has determined that intensified encroachment removal activities must commence notwithstanding the failure to identify each and every encroachment. Accordingly, continuing identification, prevention and removal efforts shall occur simultaneously. In
SFPUC RIGHT OF WAY ENCROACHMENT POLICY
2007
H:\sfagua\ROW\SFPUC Encroachment Policy Final.doc
2 addition, due to limited resources and the variation in safety and other threats posed by different encroachments, the SFPUC shall continuously prioritize known encroachments to ensure that the encroachments that pose the greatest threat to pipeline access, construction, safety and security, and encroachments that can be easily removed are addressed first. Removal efforts shall initially focus on any encroachments which would:
(1) endanger the existing or proposed water, sewer or electrical transmission lines and appurtenances;
(2) impair access to facilities for emergency repair, maintenance, or operational activity;
(3) be detrimental to the efficient and effective maintenance of the right of way;
(4) cause obstruction to the inspection and monitoring of equipment, and collection of land survey, corrosion control, and water quality data; and/or
(5) increase liabilities to the SFPUC. It shall be the policy of the SFPUC to take any and all necessary actions to cause the removal of, or to remove, such encroachments from the right of way in accordance with this policy.
To prevent the unauthorized use of the right of way, the SFPUC may install fences and other barriers where prudent or necessary as authorized by the Water Enterprise Assistant General Manager after consultation with Real Estate Services (RES). The SFPUC’s goal shall be to fence as much of the right of way as is necessary to protect the SFPUC’s facilities and property rights. Said fencing shall be consistent with the SFPUC’s standards at the time of fence installation. The Water Enterprise, working with RES, shall have broad discretion and authority to cause the installation of fences or other barriers along the right of way in any location deemed necessary or prudent.
Ancillary uses and encroachments in the right of way may be permitted only where the uses provide identifiable benefits to the SFPUC, as determined by SFPUC Water Enterprise and RES personnel. Approval of permitted uses shall be consistent with existing SFPUC policy and shall be processed by RES.
In specific cases, the SFPUC will allow use of the right of way by third parties in order to enhance maintenance efforts and reduce maintenance costs by the SFPUC. For example, the SFPUC provides for the leasing or permitting of portions of the right of way with nominal revenue-generating potential
SFPUC RIGHT OF WAY ENCROACHMENT POLICY
2007
H:\sfagua\ROW\SFPUC Encroachment Policy Final.doc
3 to property owners whose land is bi-sected by the SFPUC right of way, neighborhood associations, municipal governmental entities, non-profit groups and similar entities at little or no cost, provided they agree to maintain the surface of the right of way in a good and safe condition acceptable to the SFPUC and to indemnify the SFPUC for any injury or loss relating to such third-party use. It is contemplated that this effort will focus on non-commercial uses such as parks and recreation areas. Only portions of the right of way large enough to reduce the SFPUC’s maintenance costs and efforts shall be considered in this regard. In areas where the right of way may be leased to private entities for parking or other commercial uses, this shall be a preferred use due to its revenue-generating capacity. All such third party rights in SFPUC property will be temporary in nature.
Policy Implementation
SFPUC RES staff will use available resources to identify and prioritize all existing unauthorized encroachments and uses. With regard to each encroachment, SFPUC RES staff will gather relevant, available information.
Where any current use of right of way property is not permitted, SFPUC Water Enterprise personnel will contact RES and obtain ownership information of the encroaching party and survey information of the encroachment, if necessary.
The SFPUC RES staff will notify the adjacent owner/encroacher that the use is not authorized, and such notice will identify the option or options available to the adjacent property owners/encroachers, consistent with an administrative procedure, acceptable to the SFPUC General Manager, to be prepared and implemented by RES. Depending on the nature of the encroachment, and at the sole discretion of the SFPUC, options may include:
(1) immediate removal;
(2) removal within a specified period of time;
(3) possible modifications to the encroachment; and/or
(4) development of a permit agreement with provisions
acceptable to the SFPUC.
The administrative procedures will include attempts to resolve the encroachment through follow-up contact with the adjacent property owners/encroachers by RES. RES shall establish and chair an Internal Encroachment Review Committee (IERC) for the purpose of providing an administrative review of and proposed resolution to encroachments that may not be resolved via initial contacts between the SFPUC and the adjacent property owners/encroachers. Should administrative procedures fail or reach impasse, the SFPUC will, working with the City Attorneys’
SFPUC RIGHT OF WAY ENCROACHMENT POLICY
2007
H:\sfagua\ROW\SFPUC Encroachment Policy Final.doc
4 Office, avail itself of any available remedies, including but not limited to self-help remedies and/or litigation. In particular, where the encroachment consists of trees or vegetation, or the owner of the encroachment is unknown, SFPUC RES staff may determine to cause the removal of the encroachment following notice (posting and/or mail) of the date set for removal without first requesting that the removal be performed by adjoining property owners. The SFPUC RES staff will make every effort to recover the costs of such removal from the adjacent property owners/encroachers.
For Areas that Should be Fenced as Determined by the SFPUC Water Enterprise:
1. Staff from RES will gather relevant, available information to confirm the location of the applicable SFPUC property boundaries.
2. Staff from SFPUC Communications Group will notify neighboring property owners in advance, of the SFPUC Water Enterprise’s decision to install fences in the specified areas.
3. The SFPUC Water Enterprise will cause the fence or other barrier to be installed in the specified locations at the times specified in the notice above.
SFPUC Pipeline
±
The City does not guarantee that the information is accurate or complete. The City is not responsible for any damages arising from the use of data. Users should verify the information before making project commitments. This map shows the approximate limits of the licensed area and estimated pipeline locations, and will not be exact. 230 0 230115 Feet
License Area:
SFPUC Parcel Nos. 236 and 237
SFPUC Parcel 237
License Area
Exhibit B
Date 12/17/21 Author: H.Rodgers
SFPUC Revocable License P4550
issued to
City of Los Altos
Maintenance Parcels
Approx. 50,000 Sq. Ft.
Text
234-A
233-A
235
236237 233-B
Los Altos
Margarita
Del Pozo
Estrellita
Lunada
232-A
SFPUC Fee Owned Right of Way
License Area
Approx. 80,000 Sq. Ft.
Maintenance Parcels
Maintenance Parcels:
SFPUC Parcel Nos. 232-A,
233-A, 233-B, and 234-A