DEPARTMENT Real Estate Services Division AGENDA NO. 7f
MEETING DATE May 14, 2024
AGENDA ITEM
Public Utilities Commission
City and County of San Francisco
Real Estate License: Consent Calendar
Real Estate Director: Rosanna Russell
Approve a Seven-Year Revocable License to Pacesetter, Inc. for the use of approximately 37,000 square feet of SFPUC Parcel No. 172 in Sunnyvale, California
Summary of
Proposed
Commission Action:
Approve a seven -year revocable license to Pacesetter, Inc. to use approximately 37,000 square feet of SFPUC Parcel No. 172 located adjacent to the property at 645 Almanor Avenue in Sunnyvale, California to maintain a parking lot and l andscaping for an annual use fee of $93,240, subject to four-percent annual increases.
Background: The City and County of San Francisco (City), through its P ublic Ut ilities Commission (SFPUC) , owns the SFPUC Parcel No. 172 in fee (SFPUC Parcel). The SFPUC operates its Bay Division Pipelines No. 3 and 4 within the SFPUC Parcel.
On August 31, 2012, City, through the SFPUC , issued a five -year Ground Lease (Lease) to Pacesetter, Inc., a Delaware corporation (Pacesetter), as the tenant. Pacesetter operated its medical device affiliate, the St. Jude Medical Implantable Electronic Systems, o n its adjacent property at 645 Almanor Avenue in Sunnyvale. The Lease allowed Pacesetter to use th e SFPUC Parcel to maintain a parking lot and landscaping.
In 2017, Abbott Laboratories merged its operations with the St. Jude parent company. T he L ease expired on September 24, 2017, and the Lease continues on a holdover month-to-month basis.
During the parties’ initial discussions to enter into a new revocable license (License), Abbott Laboratories refused to agree to the City’s mandatory standard revocable license terms and conditions. After a series of lengthy meetings between the parties requiri ng signi ficant SFPUC staff time, Pacesetter finally agreed to the license terms and conditions. Pacesetter desires to enter into the License to continue to maintain its existing parking lot and landscaping on the SFPUC License.
By t he License terms, t he Lease would automatic ally terminate upon the approval of the License by this C ommission and the execution and delivery of the License by the parties.
SFPUC staff recommend that this Commission approve the issuance of the License to continue Pacesetter’s existing use of the SF PUC Parcel in return for Pacesetter’s payment of a fair market use fee of $93,240, with four - Agreement: Approve a seven-year Revocable License to Pacesetter, Inc.
Commission Meeting Date: May 14, 2024
Page: 2
percent annual increases.
Environmental
Review:
This action entails granting a L icense for the continued use of SF PUC’s Parcel for parking lot uses and does not constitute a “pro ject” under the California Environmental Quality Act ( CEQA) Guidelines section 15378(a) because there would be no physical change in the environment.
Any improvements on the License Area must first be approved by the SFPUC and, if required, the appropriate CEQA review would be conducted.
The License permits a temporary Sublicense of a portion of the License Area to the Santa Clara Valley Water District (Valley Water) for construction staging and parki ng to complete its Sunnyvale East and West Channel s Flood Protection Project (Project).
On September 9, 2014, Valley Water , acti ng as the CEQA L ead Agency, certified a Final Environmental Impact Report (Final EIR) for their Project pursuant to the C EQA. Valley Water has adopted the mitigation measures included in the Final EIR to avoid or substant ially lessen the significant environmental effects identified in the EIR and as set forth in the Mitigation Monitoring and Reporting Program and has assumed responsibility for their implementation.
The SF PUC is a Responsibl e Agency acting under the CEQA G uidelines sections 15096 and 15381 for the Valley Water Project because approval and execution of the License, which includes Sublicense to Valley Water to carry out staging for their Project , is a d iscretionary action subject to compliance with the CEQA. T he SFPUC has reviewed the EIR and determined that temporary sta ging is within the scope of the EIR, and that the EIR is adequate for these actions.
The SFP UC has no direct authority or responsibili ty with respect to the Valley Water Project other than to enable Valley Water through issuance of the License (and thereby the Sublicense) to use a portion of the License Area for staging to carry out the Project. None of the mitigation measures apply to the staging with in the SFPUC Parcel and therefore, the SFP UC does not need to adopt the Mitigation, Monitoring, and Reporting Program.
The Valley Water Project D raft EIR , F inal EIR ( including the M itigation, Monitoring, and Reporting Pr ogram in Appendix C), and Resolut ion certifying the F inal EIR and CEQA Findings are part of the record of this approval and can be found here:
https://sfpuc.sharefile.com/public/share/web-
s60b8329aa05943d18445f648c91653b4
Complete appendices for the EIR and other related documents can be found here (see Reports and Documents t ab): https://www.valleywater.org/project- updates/e2-sunnyvale-east-and-sunnyvale-west-channels-flood-protection
Agreement: Approve a seven-year Revocable License to Pacesetter, Inc.
Commission Meeting Date: May 14, 2024
Page: 3
Budget & Costs: Pacesetter will pay all costs associated with its use of the SFPUC Parcel , including property and possessory interest taxes.
Description of
Agreement:
Parties to License: City and County of San Francisco, acting through the SFPUC, and Pacesetter, Inc.
Annual Use Fee: $93,240 for the first year of the License, subject to four-percent annual increases thereafter.
Purpose: The u se of the SFPUC Parcel to maintain a n
existing parking lot and landscaping.
Location: Approximately 37,000 square feet of SFPUC
Parcel No. 172 adjacent to 645 Almanor
Avenue in Sunnyvale, California.
Commencement Date: The date on which the License is fully executed and delivered by City t o Pacesetter following
SFPUC approval.
Attachments: 1. Revocable License
2. Map of License Area
PUBLIC UTILITIES COMMISSION
City and County of San Francisco
RESOLUTION NO.
WHEREAS, The City and County of S an Francisco (City) owns certain real property presently under the jurisdiction of the San Francisco Public Utilities Commission (SFPUC) designated by the SFPUC as SFPUC Parcel No. 172 adjacent to the propert y at 645 Almanor Avenue in Sunnyvale, California (Pacesetter Property); and WHEREAS, The SFPUC operates its Bay Division Pipelines No. 3 and 4 within the SFPUC Parcel; and
WHEREAS, On August 31, 2012, City, through the SFPUC, issued a five -year Ground Lease (Lease) to Pacesett er, Inc., a D elaware corp oration (Pacesetter) , to use approximately 37,000 square feet of SFPUC Parcel No. 172 located adjacent to the Pacesetter Property (“SFPUC Parcel”) to maintain a parking lot and landscaping on the SFPUC Parc el to support the operations of Pacesetter’s medical device affiliate, th e St. Jude Medi cal Implantable Electronic Systems, on the Pacesetter Property; and
WHEREAS, The Lease expired on September 24, 2017, and the Lease continues on a holdover month-to-month basis; and
WHEREAS, In 2017, Abbott Laboratories merged its operations with the St. Jude parent company. During the parties’ initial discussions to enter into a new revocable license, Abbott Laboratories refused to agree to the City’s mandatory standard revocable license t erms and conditions. Af ter a series of lengthy me etings between the parties requiring significant SFPUC staff time, Abbot Laboratories, on Pacesetter’s behalf, finally agreed to the revocable license terms; and
WHEREAS, Pacesetter desires to obtain a seven-year revocable license (License) to continue the use of the SFPUC Parcel for a n existing parking lot and landscaping at the fair market use fee of $93,240 per year plus four-percent annual increases; and WHEREAS, The Lease would automatically terminate upon the approval of the License by this Commission and the execution and delivery of the License by the parties; and WHEREAS, The SFPUC desires to enter into the License; and WHEREAS, This action entails granting a License for the continued us e of SFPUC ’s Parcel for parking lot uses and does not cons titute a “project” under the California Environmental Quality Act (CEQA) Guidelines section 15378(a) because there would be no physical change in the environment; and
WHEREAS, Any improvements on the License A rea must first be approve d by the SFPUC and, if required, the appropriate CEQA review would be conducted; and WHEREAS, The License permits a temporary Sublicense of a portion of the License Area to the Santa C lara Valley Water Distr ict (Valley Water) for construction st aging and parking to complete its S unnyvale East a nd West Channels Flood Protection Project ( Project); and
WHEREAS, On September 9, 2014, Valley Water , acti ng as the CEQA Lead Agency, certified a Final Environmental I mpact Report (Final EIR) for their Project pursuant to the CEQA; and
WHEREAS, Valley Water has adopted the mitigation measures included in the Final EIR to avoid or substantially lessen the significant environmental eff ects identified in the EIR and set forth in the Mitigatio n Monitoring and Reporting Program , and has assumed responsibility for their implementation; and
WHEREAS, The Valley Water Project D raft EIR, Final EIR (including the Mitigation, Monitoring, and Reporting Program which is found in Appe ndix C), and Resolution certifying the Final EIR and CEQA Findings that are part of the record of this approval are available f or public review at the SFPUC offices, Real Estate Services Division, 525 Golden Ga te Avenue, 10th Floor, San Francisco, California; and
WHEREAS, Since Valley Water has approved their Project and certif ied the Final E IR, there have been no substant ial changes to the Project or changes in circumstances related to the Project that would result in new significant environmental effects or an increase in the severity of previously identified significant impac ts, and there i s no new information of substantial importance that would change the conclusions set forth in the Final EIR; and WHEREAS, This Commission, acting as a R esponsible Agency under the C EQA Guidelines sections 15096 and 15381, has reviewed the Final EIR and ha s determined that temporary staging is within the scope of the EIR and that the EIR and other materials are adequate for these actions; and
WHEREAS, The SFPUC has no direct authority or res ponsibility with respect to the Valley Water Project other than to enable Valley Water, through approval and execution of the License (and thereby the Sublicense) to use a portion of the License Area for stag ing to carry out the Project, none of the miti gation measures apply to the staging within the SFPUC Parcel, and the SFPUC does not need to adopt the Mitigation, Monitoring, and Reporting Program ; now, therefore, be it
RESOLVED, This Commission has reviewed and considered the F inal EIR and record and finds that the Final EIR is adequate for use as the decision -making body for the action taken by this Resolution; and be it
FURTHER RESOLVED, This Commission fin ds that since the F inal EIR was finalized, there h ave been no substantive Project changes and no substantial changes in Project circumstances that w ould require revisions to the F inal EIR due to the potential involvement of new s ignificant environmental e ffects or an increase in the severity of previousl y identified significant impacts, and there is no new information of substantial importance that would change the conclusions set forth in the Final EIR; and be it
FURTHER RESOLVED, The SF PUC adopts the findings contained in the recitals set forth above as if set forth here in full; 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 R ESOLVED, That this Commission hereby approves the terms and conditions of this License; and, be it
FURTHER RESOLVED, That this Commission hereby aut horizes and directs the SFPUC General Manager to execute the License; and, be it FURTHER RESOLVED, That this Commission hereby authorizes the SFPUC General Manager to enter into any amendments or modifications to t his Lice nse, includi ng with out limitation, the exhibits, that the General Manager determines, in consultation with the City Attorney, are in the best interest of the City; d o not materially increase the obligations or liabilities of the City; are necessar y or advi sable to eff ectuate the purposes a nd intent of the License or this resolution; and comply with all applicable laws, including the City Charter.
I hereby certify that the foregoing resolution was adopted by the Public Utilities Commission at its meeting of May 14, 2024.
Secretary, Public Utilities Commission
1 Rev April 2023
SAN FRANCISCO PUBLIC UTILITIES COMMISSION
REVOCABLE LICENSE
License #P4377
(Revoking and superseding
SFPUC Ground Lease #L4101)
THIS REVOCABLE LICENSE (this “License”) dated for reference purposes only as of March 1 , 2024, is made by and between the CITY AND COUNTY OF SAN FRANCISCO, a municipal corporation (“City”), acting by and throu gh its Public Utilities Commission (the “SFPUC”), and PACESETTER, INC., a Delaware corporation (“Licensee”).
City and Licensee sometimes are referred to collectively in this License as the “Parties” or singularly as a “Party.”
RECITALS
A.
The City owns certain real prop erty under the jurisdiction of the SFPUC commonly referred to as SFPUC Parcel No. 172 in Sunnyvale, California.
B. City and Licensee ar e parties to that certain Ground Lease dated August 31, 2012, designated by the SFPUC as Lease No. L4101 (the “2012 Lease ”). Under the 2012 Lease , Licensee may enter and use a portion of SFP UC Parcel No. 172 for the sole purpose of maintaining a parking lot with landscaping.
C. City and Licensee desire to revoke the 2012 Lease and replace it with this new license (“License”) containing the updated terms and conditions of the City’s current form of license.
AGREEMENT
NOW, THERE FORE, for and in consideration of the fo regoing Recit als, which are incorporated into this License by this reference, the mutual covenants and obligations of the Parties contained in th is License, and for othe r good and valuable consi deration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows.
BASIC LICENSE INFORMATION
The following is a summary of basic license information (the “ Basic L icense Information”). Each item below will be deemed to incorporate all of the terms set forth in this License pertaining to such item. In the ev ent of any conflict between the information in this Section and any more specific provision of this License, the more specific provision will control.
City: CITY AND COUNTY OF SAN FRANCISCO, acting by and
through its Public Utilities Commission
Licensee: PACESETTER, INC., a Delaware corporation
License Area (Section 1): Approximately 37,000 square feet of SFPUC Parcel No. 172, commonly known as Assessor’s Parcel No. 165-44-008, adjacent to 645 Almanor A venue in Sunnyvale, California , as more particularly described in the attached Exhibit A and shown in DocuSign Envelope ID: 6262E68C-E741-49B0-BDF4-1CFA20771367 2 Rev April 2023
the attached Exhibit B, together with any appurtenances.
Term (Section 2): Seven (7) years commencing on the Commencement Date.
Actual Commencement Date: _____________________
License Term Expiration Date: ____________________
Permitted Acts
(Section 4(a)):
Parking and landscaping
Facilities: Any future improvements or alteration s to the License Are a made in accordance with this License (“Facilities”).
Recurring Use Fee
(Section 7(b)):
$93,240 per year plus 4% annual increases
Licensee’s Share of
Property Taxes:
See Section 30 [Taxes, Assessments, Licenses, License Fees, and Liens].
Notices: See Section 31 [Notices].
Key Contact for City: SFPUC Real Estate Director
Telephone No. and Email: (415) 487-5210
[email protected]
Key Contact for Licensee: Roy Gan, Operations Management, Pacesetter Telephone No. and Email: (818) 493-2476
[email protected]
Alternate Contact for
Licensee:
Maria Silva, Administrator, Facilities
Telephone No. and Email: (408) 522-6151
[email protected]
Licensee’s Billing Address: St. Jude Medical
Re: P4377 – Pacesetter, Inc.
15900 Valley View Court
Sylmar, CA 91342
City and Licensee agree as follows:
1. License.
This License hereby supersedes and replaces the 2012 Lease . Accordingly, on the Commencement Date defined in Section 2(a) [Term of License, Rev ocability] below, the 2012 Lease shall terminate and the term of this License shall commence.
DocuSign Envelope ID: 6262E68C-E741-49B0-BDF4-1CFA20771367 3 Rev April 2023
City confers to Lic ensee a revocable, personal, non -exclusive, and non- possessory privilege to enter upon and use that certain real property owned by City situated in the County of Santa Clara, State of California, more particularly described in the attached Exhibit A (the “License Area”), for the limited purpose and subject to the terms, condi tions, and restrict ions set forth below. The License Area is shown generally on the drawing attached as E xhibit B. This License gives Licensee a license only and notwithstanding anything to the contrary in this License, it does not constitute a grant by City of any ownership, leasehold, easement , or other property interest or estate whatsoever in any portion of the License Area. Nothing in this License will be construed as granting or creating any franch ise rights pursuant to any federal, state, or local laws.
THE PRIVILEGE GIVEN TO LICENSEE UNDER THIS LICENSE IS EFFECTIVE
ONLY INSOFAR AS THE RIGHTS OF CITY IN THE LICENSE AREA ARE CONCERNED,
AND LICENSEE WILL OBTAIN ANY FURTHER PERMISSION NECESSARY BECAUSE OF ANY OTHER EXISTING RIGHTS AFFECTING THE LICENSE AREA. WITHOUT
LIMITING THE FOREGOING, THIS LICENSE IS BEING ISSUED SUBJECT AND
SUBORDINATE TO ALL OF THE TERMS AND CONDITIONS OF THAT CERTAIN DEED DATED JULY 30, 1951, AND RECORDED AUGUST 1, 1951 IN BOOK 2259, AT PAGE 187,
OF OFFICIAL RECORDS OF SANTA CLARA COUNTY, PURSUANT TO WHICH CITY
ACQUIRED ITS INTEREST IN THE LICENSE AREA, A COPY OF WHICH IS ATTACHED TO THIS LICENSE AS EXHIBIT C (THE “DEED”), AND ALL OTHER EXISTING AND
FUTURE DOCUMENTS AND INSTRUMENTS OF RECORD AFFECTING THE LICENSE AREA (COLLECTIVELY, WITH THE DEED, THE “RECORDED DOCUMENTS”).
LICENSEE MUST SECURE ALL ADDITIONAL NECESSARY APPROVALS, PERMITS,
LICENSES, AND CONSENTS, AND DELIVER ALL NECESSARY NOTICES, BEFORE
COMMENCING WORK IN THE LICENSE AREA, INCLUDING ANY APPROVALS,
PERMITS, LICENSES, CONSENTS, OR NOTICES REQUIRED FROM OR TO THE GRANTOR UNDER THE RECORDED DOCUMENTS. FOR CITY’S BENEFIT, LICENSEE
COVENANTS AND AGREES THAT LICENSEE WILL 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
LICENSE AREA PURSUANT TO THIS LICENSE, AND CITY WILL 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 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.
DocuSign Envelope ID: 6262E68C-E741-49B0-BDF4-1CFA20771367 4 Rev April 2023
2. Term of License; Revocability.
(a) Term. The privilege conferre d to Licensee pursuant to this License will commence on the Actual Commencement Date, as shown in the Basic License Information. T he Actual Commencement Date is the date on which this License is executed and delivered by City following the SFPUC authoriza tion and approval and the receipt of all fees, insurance certificates, and security required to be provided by this License (the “Commencement Date”), and, following the Commencement Date, the term of th is License will immediately expire the earlier of: (i) seven (7) years after the Commencement Date, or (ii) upon at leas t thirty (30) days’ prior written notice from City revoking this License. (b) R evoca bility. At its sole option, City may fr eely revoke this License at any time without cause or liability, and wi thout any obligation to pay any consideration to Licensee or return to Licensee any part of the li cense fee or, if applicable, the use fee. U pon any s uch revocation, Licensee will imme diately surrender the License Area in the condition required by this License. The installation of Facilities or the existence of other improvements to, or alterations of, the License Area, regardless of cost, wil l not in any way whatsoever limit City’s right to revoke this License. At its sole option , by providing City at least ninety (90) days prior notice, Licensee may freely revoke t his License at any time without ca use or liability, and without any obligation to pay any future use payable under this License to City.
3. S ecurity for Performance. On the date this License is fully executed by the Parties, the security deposit paid to City in the amount of Nine Thousand Five Hundred Dollars ($9,500) pursuant to the 2012 Lease shall be transferred to secure Licensee’s faithful performance of all terms and conditions of t his License, including Licensee’s obligation to surrender the License Area in the condition required by this License. A t its sole option, City may retain, use, or apply all or part of the security deposit to pay any sum due under this License that is not paid after the expiration of any applicable notice and cure period hereunder and to recover any loss and pay any amount that City may expend as a result of Licensee’s failure to fulfill its obligations under this License. City’s obligations with respect to the security deposit are solely that of the debtor and not a trustee. City will not be required to keep the security deposit separate from its general funds, and Licensee will not be entitled to interest on the security deposit. Neither t he payment nor the amount of the security deposit will limit Licensee’s obligations under this License . I f City uses, applies, or draws upon all or any port ion of the security deposit, Licensee will restore the security deposit to its orig inal amount within ten (10) business days following City’s written demand.
4. U se of License Area .
(a) Permitted Acts . Li censee may enter and use the License Area for the sole purpose of maintaining a parking lot and landscaping in strict accordance with Section 5(a) [Approval of Plans and Specifications] below, and for no other purpose whatsoever. (b) Subject to City Uses . Licensee is aw are that the License Area constitutes approximately 37,000 square feet of City’s regional water pipeline delivery s ystem.
Notwithstanding anything to the contrary in this License, all of Licensee ’s activities pursuant to this License will be subject and subordinate at all times to City’s existing and future use of the License Area for municipal and other purposes. Ci ty will in no way be liable for any damage or destruction to Licensee’ s property and/or improvements resulting from the co ndition of the DocuSign Envelope ID: 6262E68C-E741-49B0-BDF4-1CFA20771367 5 Rev April 2023
License Area or the SFPUC f acilities, from any pipelin e break or from any pipeline repair or maintenance activities. At City’s request, Licensee will immediately remove any of Licensee’ s property or improvements from the 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 will not be responsible for restoring or returning the same to its pr ior condition.
5. Improvements to License Area, Condit ions to Permitted Acts Licensee’s use of the License Area and its implementation or installation of any Facilities, are subject to i ts satisfaction of all of the following conditions (to the extent applicable), which are for City’s sole benefit:
(a) A pproval of Plans and Specifications . Licensee will not install or implement any Facilities without City’s prior written consent, which City shall not unreasonably withhold, condition or delay. Licensee will only install or implement Facilities in accordance with plans and specifications (including drawings ) approved in advance and in writing by the SFPUC (the “Approved Plans”). The Approved Plans may be revised or amen ded only with the SFPUC’s prior written approval after the SFPUC’s Bureau of Environmental Management has determined that no further environment al review is required by the California Environmental Quality Act (“CEQA”) as a result of any such revision or amendment. (b) E nergy Service and Related Facilities . If Lic ensee seeks electrical service for use in the License Area, including for any Facilities, Licensee will contact the Interconnection Services Department in the Power Enterprise of the SFPUC to arrange for service. Licensee will purchase all electricity necessary for its operations at the License Area from the SFPUC , at the SFPUC’s stand ard rates charged to third parties, unless the SFPUC determines, in its sole judgment, that it is not feasible to provide s uch service to the License Area. The SFPUC is the provider of electric serv ices to City p roperty, and the SFPUC ’s Inte rconnection Se rvices Department coordinates with Pacific Gas and Electric Company and others to implement this Section. Except as provided above w ith resp ect to any electricity services p rovided by the SFPUC, Licensee will arrange and pay for all utilities and services furnished to the License Area, including gas, electricity, water, s ewage, telephone, and trash collection services, and fo r 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 License Area. Licensee has the sole resp onsibility to locate any utility facilities within the License Area and protect them from damage resulting from Licensee’s use of the License Area. (c) Permits, Licenses, and Approvals . Before beginning a ny permitted improvement or alteration work in the License Area, Licensee will obtain all permits, licenses, and approvals (collect ively, “Approvals”) of all regulatory agenc ies and other thir d parties that are required to commence, complete, and maintain the permitted work. Promptly upon receipt of such Approvals, Licensee will deliver copies of them to the SFPUC. No approval by the SFPUC for purposes of Licensee’s work under this License will be deemed to constitute the approval of any federal, state, or local regulatory authority with jurisdiction, and not hing in this License will limit Licensee’s obligation to obtain all such regulatory Approvals, at Licensee’s sole cost.
DocuSign Envelope ID: 6262E68C-E741-49B0-BDF4-1CFA20771367 6 Rev April 2023
(d) Limits of Cit y’s or SFPUC ’s Consent . City’s or the SFPUC ’s consent to or approval of any improvements, equipment, or fixtures will not relieve Licensee or its engineers, architects, or contractors from any liabi lity for negligence, errors, or omissions a ssociated with the design and construction of any such improvements, equipment, or fixtures. In no event will the SFPUC ’s approval of pl ans or specifications be deemed to constitute a rep resentation or warranty b y City concerning the suitability of the improvements, equipm ent, 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 9 [Compli ance with Laws] below), or industry standards, nor will such approval release Licensee from its obligation to supply plans and specifications that conform to applicable building code s, other applica ble Laws, and industry standards.
(e) E xercise of Due Care. Licensee will use and will cause its Agents (defined in Section 19 [Indemnity] below) to use, due care at all times to avoid any damage or harm to City’s water pipelines, facilities, or other property and to native vegetation and na tural attributes of the License Area and to minimize slope erosion. Licensee will not disturb the surface of the License Area or perform any excavat ion work without City ’s prior written approval, which C ity may withhold at its sole discretion. City may condition and/or oversee any permitted excavation work. At its own expense, Licensee will mark the location of City ’s water pipelines or other facilities within the License Area and will not use any pick, plow, or other sharp tool to remove the two feet of soil around the pipelin es or other fa cilities, provided that Licensee may use hand shovels or pneumatic shovels in compliance with all other terms and conditions of this License.
Licensee will immediately inform City of any actual or potential damage to the coating of the pipeline, and any s uch damage will be promptly repaired by Lice nsee, 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 Li censee of such fact. Upon completion of the repairs, City will send to Licensee a bill therefor , which Licensee will pay within thirty (30) days following receipt. Under no circums tances will Licensee damage, harm, or take any rare, threatened, or endangered species present on or about the License Area. (f) C oopera tion with Public Utilities Commission . Licensee and its Agents wil l work closely with City personnel to minimize any pote ntial disturbance (even if temporary) of the natural features of the License Area and to avoid disruption (even if temporary) of City facilities, in, under, on, or about the License Area and City uses of such facilities. (g) H eavy Equipment . Licensee will not use any heavy construction equipment over or about City ’s pipelines, except as otherwis e expressly allowed in Section 6(i) [ Heavy Equipment and Vehicles] below.
(h) W ork Schedule . If Licensee obtains City’s cons ent to any Facilities , City may condition its consent on the performance of such improvement or alteration work during a specified time f rame. At least ten (10) business days prior to the commencement of any improvement or alteration work on the License Area, Licensee will notify City’s Construction Inspector (“Construction Inspector”), at (650) 871-3015, of the date such work will commence and the intended construction schedule. Notification must also be given to Underground Service Alert at least two (2) days prior to start of such work. Notwithstanding the approval of such schedule by the SFPUC , t he Construction Inspector will have the ri ght to requi re Licensee to adjust such s chedule from time to time. All work must be performed during regular wor king hours (Monday through Friday) between 8:00 a.m. and 4:30 p.m., exclusive of C ity holidays.
DocuSign Envelope ID: 6262E68C-E741-49B0-BDF4-1CFA20771367 7 Rev April 2023
Any work performed during any other time or da y must be pr eapproved 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 before the SFPUC approves the request.
Notwithstanding the work hours set forth above, Licensee will comply with any applicable local ordinance that imposes later start times and/or earlier cessation times for construction activities. (i) Restoration of License Area. Immediat ely following completion of any work permitted under this License, Licensee will remove all debris and any excess dirt and will restore the License Area to its condition immediately prior to such work, to City’s satisfaction. Licensee will 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 as requested by City, and will comply with all applicable regulations of the regulatory a gency with jurisdiction.
(j) Pipe line Depth/Installation of Above -Ground Markers. Bef ore commencing any excavation work in t he License Area, Licensee will measure the depth of City ’s pipelines, if any, located in the License Area by potholing and forward such information to City. Any potholing authorized by this License will be subject to the requirements of Section 5(m) [Potholing] below. Upon completion of work, Licensee will promptly notify C ity in writing of the depth of City’ s pipeline and related facil ities in th e License Area. Licensee will 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 will be subje ct to the SFPUC ’s prior written approval , which approval shall not be unreasonably withheld, conditioned or delayed.
(k) As-B uilt Drawings/Reports . Promptly upon completion of any Facilities, Licensee will furnish the SFPUC with two (2) complete co pies of final as -built drawings for the Facilities, which drawings will include sufficient detail so as to allow City to precisely locate the Facilities. I f Licensee or any of its A gents or consultants prepares any environmental, seismic, geophysical, or other written report relating to the License Area and/or any work perfo rmed on the License Area, Licensee will furnish to C ity a complete copy of such report, including any schedules, exhibits, and maps, promptly upon completion of the same. (l) C ontractors . Licensee will not accept and release its contractor for work authorized or required by this License before securing the SFPUC’s written approval. (m) Pot holing. Any potholing authorized by this License will be subject to the direction of City ’s Construction Inspector. Potholing using the soft dig method (vacuum soi l 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 p rior written consent .
Notwithstanding the foregoing, the last two feet (2′) above the top of the pipe must be dug manually, without the use of any machines.
6. R estrictions on Use . The following uses (by way of example only) of the License Area by Licensee, or any other person clai ming by or through Licensee, are inconsistent w ith the limited purpose of this License and are strictly prohibited as provided below:
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(a) Improvements. Except as otherwise expressly provided in this License, Licensee will not construct or place any temporary or permanent structures or improvements in, on, under, or about the License Area, nor will Licensee make any alterations or additions to any existing structures or improvements on the License Area, unless Licensee first obtains the SFPUC’s prior written consent, which the S FPUC 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) T rees and Ot her Plantings. Licensee will not plant any trees or other vegetation in or on the License Area, except as otherwise expressly provided in this License and except in accordance with detailed plans consistent wi th the SFPUC ’s Vegetation Ma nagement Policy, which may be amended from time to time and as approved by the SFPUC in writing in advance. (c) D umping . Licensee will not cause or permit the dumping or other disposal in, on, under , or about the License Area of any landfill, refuse, Haza rdous 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) H azardous Materia l. Licensee will not cause, nor will Licensee allow any of its Agents or Invitees (defined in Section 19 [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 License Area, or transported to, from, or over the License Area. Licensee will 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 License Area. Licensee wil l further comply with all app licable Laws requiring notice of such releases or threatened releases to governmental agencies and will take all action necessary or desirable to mitigate the release or minimize the s pread of contaminatio n. If Licensee or its Agents or Invit ees cause a rel ease of Hazardous Material, Licensee will promptly return the License Area to the condition immediately prior to the release, without cost to City, in accordance with all Laws, and usin g the highest and best technology available. In connect ion with such remedial action, Licensee will afford City a full opportunity to participate in any discussion or negotiations with governmental agencies and environmental consultants regarding any s ettlement agreement, cleanup or abatement agreement, consen t decree, or ot her 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 i ts 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, 42 U.S.C.
Section 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 asbes tos-containing materials whether or not such materials are part of the Lic ense Area or are naturally occurring substances in the License Area; and any petroleum, including crude oil or any crude-oil fraction, natural gas, or natural gas liquids, provided, the foregoing will not pr ohibit Licensee from traversing to, from , and across the License Area in standard motor vehicles that do not exceed the weight limitations set forth DocuSign Envelope ID: 6262E68C-E741-49B0-BDF4-1CFA20771367 9 Rev April 2023
below. The term “ release” or “ threatened release” when used with respect to Hazar dous Material will include any actual or imminent spilling, leaking, pumpi ng, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing in, on, under , or about the License Area.
(e) Nuisances. Licensee will not conduct any activities in, on, under, or about the 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) D amage . Licensee will not do anything in, on, under , or about the License Area that could cause damage to or interference with any pipelines, facilities, or other related property located in, on, under , or about the License Area. Licensee will compensate City for all damage caused to the License Area and City facilities resulting from the activities of Licensee and its Agents and Invitees, including damage resulting from defective work. (g) U se of Adjoining Land . L icensee acknowledges that the privilege given unde r this License will be li mited strictly to the License Area. Licensee will not traverse over or otherwise use any adjoining lands of City.
(h) P onding; Water Courses . Licensee will not cause any ponding on the License Area or any flooding on adjacent land. Licensee will 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 License Area, nor will 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) H eavy Equipment and Vehicles . To prevent damage to City’ s u nderground pipelines, Licensee’s use of vehicles and equipment within twent y feet (20 ′) of each side of the centerline of any City pipeline (measured on the surface) will be subject to the following restrictions:
(i) T he depth of soil cover over the tops of Ci ty’s pipelines must b e at least three feet (3 ’) fo r 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 ab ove, Licensee will 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 Lic ensee’s proposed activities. If City’s pipelines may be adversely affected, Licensee will 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 four teen feet (14′) apart, and rear axle carrying eight tons (16,000 lbs.). Li censee will be responsible for providing the SFPUC adequate evidence that its equipment and vehicles meet the foregoing requirements.
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(iii) Licensee will not use vibrating compaction equipment without the SFPUC’s prior written approval, which approval may be given or with held 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, unl ess an alternate method is approved by the SFPUC in writing , all excavation and grading over the pipeline will be performed manually. For any machinery or equipment excavation and grading over and/or within twenty feet (20 ′) of each side of the center line of the pipeline (measur ed on the surface), Licensee will s ubmit 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 will be removed manually or by other methods approved by the SFPUC with due care as provided in Section 5(e) [Exercise of Due Care] above.
(j) Cathodic and Other Protection . City may adopt from time to time such rules and regulations with regard to the Facilities, Licensee’s prior improvements or alterations, and Licensee’s 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 other facilities. Licensee will immediately comply with all such rule s an d regulations upon receipt of a copy of such rules and regulations.
7. L icense Fee(s) .
(a) Intentionally omitted.
(b) Recurring Use Fee. In addition, throughout the term of this License beginning on the Commencement Date, Licensee will pay to City a use fee in consideration of Licensee ’s use of the License Area. Starting o n the Commencement Date and until any adjustments permitted by this License, the use fee payable will be in the amount of Ninety -Three Thousand Two Hundred Forty Dollars ($93,240) per year and paid in the amount of Seven Thousand Seven Hundred S eventy Dollars ($ 7,770) per month. The us e fee will be paid to City in advance, without prior demand and without any deduction, set off, or counterclaim whatsoever, before the Commencement Date and on or bef ore the first day of each calendar month thereafter. The use fee for the first month or any partial month will be prorated on the basis of a 30- day month. All sums payable by Licensee to City pursuant to this License will be paid in cash or by good check, cashier’s or certified check , or wire transfer to the City and County of San Francisco and delivered to City in care of the Customer Service Bureau , Attn: Real Estate Billing, 525 Golden Gate Avenue, 3 rd F loor, San Francisco, California, 94102, or such other place as Ci ty may designate in writing. Such use fee will be prorated for any fractional month. City’s acceptance of a third -party check or other payment will not be deemed as City’s acceptance or acknowledgement of any assignment of this Li cense and will not be deemed to establish a relationship between City and that third party. Any sum tendered by a third party will be deemed a use fee tendered on behalf of Licensee and not on behalf of the thi rd p arty regardless of whether it contains a restrictive endorsement. (c) A nnual Increases . On each anniversary of the Commencement Date (the “Adjustment Date”), the annual use fee will be adjusted to increase the then current annual fee by four percent (4%) of the annual fee for the year preceding such Adjustment Date.
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(d) Late Fees. Licensee acknowledges that late payment by Licensee to City of the use fee or other sums due under this License will cause City to incur costs not contemplated by this License, the exact amount of which will be extremely difficult to ascertain. Such costs include processing and accounting charges. Accordingly, if the use fee or any other sum due from Licensee will not be received by City within fifteen (15) days after such amount w ill be due, Licensee will pay to City a late charge o f One Hundred Fifty Dollars ($150). The Parties agree that such late charge represents a fair and reasonable esti mate of the costs City will incur by reason of any late payment by Licensee. Acceptance of s uch late charge by City neither constitutes a waiver of Licensee’s default with respect to such overdue amount, nor prevents City from exercising any of the other rights and remedies available to City.
8. R equired Insurance Coverages. Licensee’s complia nce w ith the provisions of this Section 8 will in no way relieve or decrease Licensee’s indemnification or other obligations under this License. Licensee must maintain i n force, during the full term of th is License, insurance in the amounts and coverages l isted below. In addition, Licensee will cause each Agent (defined in Section 19 [Indemnity] below) performing work on the License Area to procure and keep in effect d uring 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 $1,000,000 each occurrence for Bodily Injury and Property Dam age, 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 Limi t” for Bodily Injury and Property Damage, including Owned, Non-Owned, and Hired auto coverage, as applicable. (c) Workers’ Compensation, in sta tutory amounts, with Employers’ Liability Limits not less than $1,000,000 each accident, injury, or illness. (d) Additional Insured Endorsements.
(i) The Commer cial G eneral Liability 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 Polic ies referenced above will be endorsed wi th a waiv er 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 will provide that such policies are primary insurance to any other insurance available to the Additional Insureds, with respect to DocuSign Envelope ID: 6262E68C-E741-49B0-BDF4-1CFA20771367 12 Rev April 2023
any claims aris ing out of this License, and that the insurance app lies separately to each insured against whom claim is made or suit is brought.
(ii) The Commercial Automobile Liability In surance policy will provide that such policies are pr imary insurance to any other insura nce 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 will also provide for severability of inter ests and that an act or omission of one of the named insureds that would void or otherwise reduce cover age will not reduce or void the coverage as to any insured and will afford coverage for all claims based on acts, omissions, injury, or da mage that o ccurred 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’ advanc e written notice will 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 will be provided to City. Notices will be sent to the City address set forth in Section 30 [Notices].
(ii) Should any of the required insurance be provided under a claims -made form, Licensee will maintain such coverage continuously throughout the term of this License and, without lapse, for a period of three years beyond the e xpiration of this License, to the effect that, should occurrences during the License term give rise to claims made after the expiration of the License, such claims will 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 inv estigation or legal defense costs be included in such general annual aggregate limit, such general annual aggregate limit will be double the occurrence or claims limits specified above. (iv) Should any required insurance lapse during the term of this License, requests for payments originating after such lapse will not be processed until City receives satisfactory evidence of reinstated coverage as required by this L icense, effective as of the lapse date. If insurance is not reinstated, City may, at its sole option, te rminate this License effective on the date of such lapse of insurance.
(v) Prior to the Commencement Date of this License, , Licensee will furnish to City certificates of insurance and additional insured policy endorsements with insurers with ratings co mparable to A- , VIII or higher, that are authorized to do business in the State of California, and that are s atisfactory to City, in form evidencing all cover ages set for th above.
Licensee and its contractors will submit or cause their respective insurance broke rs t o submit requested information through the Exigis insurance verification program designated by City or any successor program used by City for verif ication of Licensee and contractor insurance coverage. Approval of the insurance by City will not relieve or decrease Licensee’s liability hereunder. If Lic ensee will 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 DocuSign Envelope ID: 6262E68C-E741-49B0-BDF4-1CFA20771367 13 Rev April 2023
will reimburse City for a ny costs so paid by City within five (5) business days after delivery to Licensee of bills therefor.
(vi) If Licensee will use any subcontr actor(s) to perform the Permi tted Acts, Licensee will 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 C ity will 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 th e amo unt or coverage then being carried by Licensee for risks comparable to those associated with the Lic ense 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.
9. Compliance with Laws . At its expense, Licensee will conduct and cause to be conducted all activi ties on the License Area permitted by this Licens e in a safe and reasonable manner and in compliance with all laws, statutes, ordinances, rules, regulations, policies, orders, edicts, and the like (collectively, “ Laws”) of any governm ental or other regulatory enti ty with jurisdiction (including the Americans with Disabilities Act) 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. At its sole expense, Licensee will procure and maintain in force at all times during its use of the License Area all business and other licenses or approvals necessary to conduct the activities allowed by this L icense. City is entering into thi s License in its capacity as a property owner w ith a proprietary intere st in the License Area and not as a regulatory agency with police powers. No approval by City for purposes of this License will be deemed to constitute approval of any federal, state, City , or other local regulatory authority with jurisdiction, and nothing in this License will 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.
Licensee w ill keep itself fully informed of City’s Charter, cod es, ordinances and regulations and all state and federal laws, rules and regulations affecting the performance of this License, and will at all times comply with such laws and regulations. Licensee agre es t o maintain its goo d standi ng as a corporati on, nonprofit, LLC, part nership, JV, or similar legal entity at all times during the term of this License. This agreement to maintain good standing includes, without limitation, Licensee’s continued timely su bmission of all required infor mation and payments whe n due to the Calif ornia Secretary of State, Franchise Tax Board, Internal Revenue Service, California Attorney Gener al’s Registry of Charitable Trusts, or any other applicable agency or entity. Licensee will immediately notify City of any change in its eligibility to perform un der th is License. Upon City request, Licensee will provide documentation demonstrating its compliance with all applicable legal requirements. If Licensee will use any contractors to perform the License, Licensee is responsible for e nsuring they are also i n compliance with all applicable legal requirements at the time of contract execution and for the duration of the agreement. Any failure by Licensee or any of its contractors to r emain in good standing with applicable requirements will be a material breach of this License.
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10. Covenant to Maintain License Area and Facilities. Licensee will be solely responsible for repairing and maintaining the Facilities and improvements or alterations made in or on the License Area pursuant to prior a greements in good, clean, safe, secure, sanitary and sightly condition, and City will have no duty whatsoever for any repair or maintenance of the License Area or any Facilities , or other Licensee improv ements or alteration s. T hroughout the term of this L icense, at its s ole cos t, Licensee will maintain the License Area at all times in a good, clean, safe, secure, sanitary, and sightly condition, so far as the License Area may be affected by Licensee’s activities under this License. Licensee will notify City in writing not less than fi ve (5) days before performing any repair or maintenance work in the License Area, except in the case of an emergency when Licensee will notify City telephonically and in wri ting as soon as reasonably possible.
11. M onuments .
(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 Facilities and at all times du ring Licensee’s use of the L icense Area, Licensee will pr otect a nd safeguard City’ s monuments. Licensee will 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 necessitat ing resurvey, repair , or repla cement, as determined by City at its sole discretion, Licensee will survey, file a lan d surveyor’s map in the Official Records of the County of San Mateo , and install a repl acement monument within thirty (30) days of completion of work authorize d under this L icense, all at Licensee ’s expense and to City’s satisfaction. A recorded surveyor ’s map will be furnished by Licensee to the SFPUC for its records.
(c) During the term of this License, City may repl ace missing monuments or ins tall new monuments. When City replaces missing monuments or installs new monuments, City will give Licensee written notice of such replacement or installation. Upon deposit of such notice in the U.S. m ail by City, post age prep aid, Licensee will assume the protection and re placement responsibilities set forth in this License.
12. Removal or Alteration of Facilities or Improvements. Without limiting City ’s rights under this License, at City ’s written request , Licensee will promptly alter or remove, at its sole expense, all Facilities, improvements, plantings, or other property owned by Licensee or installed or placed in, on, under, or about the License Area by Licensee, 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 will be due and payable upon City’ s demand. In the event of an emergency, at City’s sole option, at Li censee’s sole expense, and without not ice, City may, alter, remove, or protect all facilities, improvements, plantings, or other property installed or placed in, on, under , or about the License Area by Licensee except for utility facilities owned by either a private company or a public agency that are necessary for operations after an emer gency as determined by City at its DocuSign Envelope ID: 6262E68C-E741-49B0-BDF4-1CFA20771367 15 Rev April 2023
sole discretion. Upon City’ s written or oral notice that an emergency exists, t he owner of such utility facilities will take immediate action at its sole expense to protect, remove, or relocate such facilities as required by City to meet the emergency.
13. Intentionally Omitted.
14. Signs. Except for an y pipeline markers required by City or any regulatory agency with jurisdiction, Licensee will not place, erect , or maintain any sign, advertisement, banner , or similar object in, on, or about the 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 License Area a temporary sign of less than thirty (30) days’ duration that does not penetrate the ground surface.
15. S urrender. Upon the expiration of this License or within t hirty (30) days after any sooner revocation or other termination of this Licens e, Licensee will surrender the License Area in the same condition as received, and broom clean, free from hazards, and clear of all debris. At such time, Licensee will remove all of its property from the License Area and any signs and, upon City’ s request, the Facilities , provided that Licensee shall not ha ve to remove any other structures, improvements , or al terations placed on the License Area durin g the term of this License approved by City, and will repair, at its cost, any damage to the License Area caused by such r emoval. Licensee ’s obligations under this Section will survive any termination of this License.
16. R epair of Da mage. If any portion of the License Area or any City property located on or about the License Area is damaged by any of the activit ies conducted by Licensee or anyone acting by or through Licensee, at its sole cost, Licensee will immediately notify City of such damage or threat by (a) telephoning the SFPUC’s dispatch operator as specified in Section 31(b) [Emergency Contacts] below, and (b) providing written notice in accordance with Section 31(a) [Notices] below . City may, but will not be o bligated to , remedy such damage or threat at Licensee’s sole cost, or City may elect to witness Licensee’ s repair work. I f City elects not to remedy such damage or threat, Licensee will repair all such damage and restore the License Area or property to its previous conditio n subject to City’s inspection, review, and approval. City has no responsibility or liability of any kind with respect to any utilities that ma y be on, in, or under the License Area. Licensee is solely responsible for the locat ion of a ny such utilities and other existing facilities and their protection from damage. Licensee will be solely responsible to arrange and pay directly for any utilities or services necessary for its acti vities pursuant to this License; provided, Licensee will obtain City ’s p rior written approval to th e provision of such services or utilities in, on, under, or through the License Area.
17. C ity ’s Right to Cu re D efaults by Li censee. If after thirty (30) days p rior notice, Licensee fails to perform any of its obligations under this License to restore the License Area, remove or alter any Facilities, and other Licensee 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 will be required in the event of an emergency as determined by City). Such action by City will not be construed as a waiver of any of City ’s rights or remedies under this License, and nothing in this License wil l imply any duty of City to do any act that Licensee is obligated to perform. Licensee will pay to City upon deman d, all DocuSign Envelope ID: 6262E68C-E741-49B0-BDF4-1CFA20771367 16 Rev April 2023
costs, damages, expenses , or liabilities incurred by City, including reasonable at torneys’, experts’, and consultants’ fees, in remedy ing or attempting to remedy such default. Licensee ’s obligations under this Section will survive the termination of this License.
18. No Costs to City . Licensee will bear all costs or expenses of any kind or nature in connection with its use of the License Area and will keep the 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 License Area.
19. I ndemnity . Licensee will indemnify, defend, reimburse , and hold ha rmless City, its officers, agents, employees, and contractors, and each of them, from and against all demands, claims, legal or ad ministrative pr oceedings, 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 License Area, whether such injury, death, damage , or destruction is caused by the person or proper ty of Licensee, its officers, direc tors, members, employees, agents, consultants, contractors, or subcontractors (collectively, “ Agents”), its inv itees, guests, or business visitors (collectively, “Invitees”), or third persons, relating to any use or activ ity under this License, (b) any fai lure by Licensee to faithfully observe or perform any of the terms, covenants , or conditions of this License, (c) the use of the License Area or any activities conducted on the License Area by Licensee, its Agents, or Invi tees, (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 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 Licensee improvements or alterations on the License Area; 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 o r potentially falls within this indemnity provision even if such allegation is or may be groundless, fraudulent, or false, wh ich obligation arises at the time such claim is tendered to Licensee by City and continues at all times thereafter. The foregoing inde mnity will include reasonable attorneys ’, experts ’, and consultants ’ fees and costs, investigati on and remediation costs , and all other reasonable costs and expenses incurred by the indemnified parties, including damages for decrease in the value of th e License Area and claims for damages or decreases in the value of adjoining property. Licensee’ s obligations under this Sec tion will survive the expiration or other termination of this License.
20. W aiver of Claims .
(a) Neither City nor any of its commissions, departments, boards, officers, agents , or employees will 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 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 t his License and as a material par t of the consideration for this License, Licensee DocuSign Envelope ID: 6262E68C-E741-49B0-BDF4-1CFA20771367 17 Rev April 2023
fully RELEASES, W AIVES, AND DISCHARGES for ever all claims, demands, rights, and causes of action against, and covenants not to sue, City, its departments, commissions, offic ers, directors, and employees, and all persons acting by, through, or under each of them, under any present or future L aws, 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 displac ed person at t he t ime this License is terminated or revoked or expires by its own terms, and Licensee fully RELEASES, WAIVES, AND DISCHARGES forever 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 all claims for relocation benefits or assistance from City under federal and state relocation assistance laws.
(d) The fees p ayable pursuant to thi s 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 Licensee improvements or alterations on the License Area; or Licensee’s uses of the License Area permitted by this License. City would not be willing to grant this License in the absence of a waiver of liability f or consequential or incidental damages resulting from the acts or o missions of City or its departments, co mmissions, officers, directors, and employees, and by all persons acting by, through, or under each of them , and Licensee expressly assumes the ri sk w ith respect th ereto. Accordingly, without limiting any indemnification obligatio ns of Licensee or other w aivers contained in this License and as a material part of the consideration for this License , Licensee fully RELEASES, WAIVES , AND DISCHARGES for ever all claims, d emands, rights, and causes of action against for consequential and incidental damages (inclu ding lost profits) and covenants not to sue for such damages City, its departments, co mmissions, officers, directors, and employees, and all perso ns acting by, through, or under each of them, arising out of this License or the uses authorized under this Lic ense, 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 Cit y 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 agreem ent to accept the License Area in its “ As Is ” condition as provided below, and without limiting such agreement, Licensee, on behalf of itself and its successors an d as signs, waives its right to recover from, and fore ver releases and discharges, City and i ts officers, agents, and employees, and their respective heirs, successors, administrators, personal representatives, and assigns, from 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 License Area and any related improvements or any applicable Laws or the suit ability of the License Area for Licensee’ s intended use.
(f) In c onnection with the f oregoing releases, Licensee acknowledges that it is familiar with Section 1542 of the California Civil Code, which reads:
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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 th e releases contained in this License include al l 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 intend s to w aive the benef it of California Civil Co de Section 1542, or any statute or other similar law now or later in effect. The releases contained in this License will survive any termination of this License.
21. As Is Condition of License Area; Disability Access; Disclaimer of Representations .
Licensee accepts the License Area in its “AS IS” condition, without representation or warranty of any kind by City, its departments, commiss ions, officers, dir ectors, and employees, and all persons acting by, through, or under each of them, and subject to all appli cable Laws governing the use of the License Area. Without limiting the foregoing, this License is made subject to all existing and future covenants, conditions, restrictions, easements, encumbrances , and other title matters affecting the License Area, whether foreseen or unforeseen, and whether such matters are of record or would be disclosed by an accurate inspection or survey.
City discloses (a) City has not been issued a di sability access inspection certificate as described in California Civil Code Section 55.53(e), (b) pursuant to California Civil Code Section 1938, tha t City has not ordered, performed, or caused to be performed, a Certified Access Specialist (“CASp”) inspection of the License Area (sometimes referred to as “premises” or “subject premises” for the herein disclosures), and (c) City make s the follow ing statutory disclosure per California Civil Code Section 1938 (the required “CASp Disclosure”):
“A Certified Ac cess Specialist (“CASp ”) can inspect the subject premises and determine whether the subject premises comply with all of the applica ble construction-related accessibility standards under state law. Although s tate law does not requi re a CASp ins pection of t he subject premises, the commercial property owner or lessor may not prohibit the lessee or tenant from obtaining a CASp inspection of the subj ect premises for the occupancy or potential occupancy of the lessee or tenant, if reques ted by the le ssee or tenant. The parties will mutually agree on the arrangements for the time and manner of the CASp inspection, the payment of the fee for the CASp inspe ction and the cost of making any repairs necessary to correct violations of construction-related accessibility standards within the premises.”
22. Restrictions on Assignment. Except for the Permitted Sub license described below, t his License is personal to Licensee and will not be assigned, conveyed, or otherwise transfe rred by Licensee under an y circumstances. Any attempt to assign, convey, or otherwise tr ansfer this License will be null and void and cause the immediate termination and revocation of this License.
(a) P erm itted Sublicense to the Santa Clara Valley Water District . The Santa Clara Valley Water District (“Valley Water” or “Sub-Licensee”) seeks to use a portion of the License Area, shown generally on the drawing attached as Exhibit D, for construction staging and parking to complete its Sunnyvale East and West Channel Flood Protection Project (“Flood DocuSign Envelope ID: 6262E68C-E741-49B0-BDF4-1CFA20771367 19 Rev April 2023
Protection Project.”) The Flood Protection Project is anticipated to begin in June 2024 and be completed by August 2024 (“ Project Term ”). City must approve Vall ey Water ’s staging of equipment or vehicles on the License Area for compliance with Section 6(i) [Heavy Equipment and Vehicles ] of the License before Licensee and Valley Water enter into the Sublicense (as defined below).
(b) Notwithstanding anything to the contrary in this License and assuming City approves Valley Water ’s staging of equipment or ve hicles for compliance with Section 6(i) [Heavy Equipment and Vehicles ], Licensee shall have the right to sublicense to Valley Water approximately 5,700 squar e feet of the License Area (“ Sublicense Area”) for construction staging and parking for the Flood Protection Project for six (6) months during the Project Term (“Sublicense”). The Sublicense must obligate Valley Water to abide by and remain subject to the terms and conditions of this License and must be approve d by City. After City consents in writing to the Sublicense, the Parties shall fill in the C ommencement Date of the Sublicense and attach a copy of the Sublicense to this License as Exhibit E . Valle y Water will provide thirty (30) days’ notice to City and Licensee before commencing its occupancy of the Sublicense Area.
23. Cessation of Use. Licensee will not terminate its activities on the License Area pursuant to this License without prior written notice to City.
24. N o Joint Ventu res 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 License Area. Li censee is not a state actor with respect to any activity conducted by Licensee on, in, under , or around the Licen se A rea. City ’s provis ion of this License does not c onstitute City ’s authorization or approval of any activity conducted by Licensee on, in, around, or relating to the License Area.
25. Ma cBri de Principles - Northern Ireland . The provisions of San Francisco Administrative Code Section 12F are incorporated into and made a part of this Lic ense 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 resol ve employment inequities and to abide by the MacBride Principles and urges San F rancisco companies to do business with corporations that abide by the MacBride Principles.
26. No n -Discrimination in City Contracts and Benefits Ordinance. (a) Covenant Not to Discriminate. In the perf ormance of this License, Licensee will not discriminate agains t any employee of, any City employee working with Licensee, or applicant for employment with , Licensee, or against any person seeking accommodations, advantages, facil ities, pr ivileges, servi ces, or membership in all business, social, or other establishments or organizations, on the basis of the fact or perception of a person’s race, color, creed, religion, national origin, ancestry, age, height, weight, sex, sexual ori entation, gender identity, dome stic partner status, marital status, disability or Acquired Immune Deficiency Syndrome or HIV status (AIDS/HIV status), or association with members of s uch protected classes, or in retaliation for opposition to discrimination against such classes. (b) Oth e r Su bcontracts. Licensee will include in all subcontracts rel ating to the License Area a non -discrimination clause applicab le to such subcontractor in subs tantially the form of Section 26(a) [ Covenant Not to Discriminate ] above. In addi tion, Licensee will DocuSign Envelope ID: 6262E68C-E741-49B0-BDF4-1CFA20771367 20 Rev April 2023
incorporate by reference in all s ubcontracts the provisions of Sections 12B.2(a), 12B.2(c) -(k), and 12C.3 of the San Francisco Administrative Code and wil l require all subcontractors to comply with such provisions. Licensee’ s failure t o c omply with the obligations in this subsection will 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 perfor med for City or elsewhere within the United States, discrimina te in the provision of bereaveme nt leave, family medical leave, health benefits, membership or membership discounts, m oving 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 employe es, where the domestic partnership has been registered with a governmental entity pursuant to state or local law authorizing su ch registration, subject to the conditions set forth in Section 12B.2(b) of the San Francisco Administrative Code. (d) Cond ition to License. As a condition to this Licens e, Licensee will execute the “Chapter 12B Declaration: Nondiscrimination in Contracts and Benefits” form (Form C MD- 12B-101) with supporting documentation and secure the approval of the form by t he San Francisco Contract Monitoring Division.
(e) I ncorporation of Administrative Code Provi sions by Reference . The provisions of Chapters 12B and 12C of the San Francisco Administrativ e Code relating to non-discrimination by parties contracting for the l icense of City property are incorporated in this Section by refer ence and made a part of thi s License as though fully set forth. Licensee will comply fully with and be bound by all of the provisions that apply to this License under such Chapters of the San F rancisco Administrative Code, i ncluding 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 duri ng which such pers on was discriminated against in violation of the provisions of this License may be assessed against Licensee and/or deducted from any payments due Licensee.
27. R equiring Health Benefits for Covered Employees . To the extent appl icable an d unless exempt or preempted by other Laws, Licensee will comply fully with and be bound by all of the provisions of the Health Care Accountabi lity Ordinance ( “HCAO”), as set forth in San Francisco Administrative Code Chapter 12Q (“Chapter 12Q”), including the implementing regulations, as the same may be amended or updated from time to time. The provisions of Chapter 12Q are incorporated into t his License by reference and made a part of this License as though fully set forth in this License. The text of t he HCAO is currently available on the web at http://www.sfgov.org/olse/hcao. Capitalized terms used in this Section and not defined in this License will have the meanings assigned to such terms in Chapter 12Q. (a) For each Covered Employee Licensee will provide the applicable health benefit set forth in Section 12Q.3 of the HCAO. If Licensee chooses t o offer the health plan option, such a health plan will meet the minimum standards set forth by the San Francisco Heal th Commission.
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(b) Notwithstanding the above, if Licensee meets the requirements o f a “ small business” as described in Section 12Q.3(d) of the H CAO, it will have no obligation to comply with subsection (a) above.
(c) Licensee’s failure to comply with any appli cable requirements of the HCAO will constitute a mate rial breach by Licensee of this License and City ’s remedies will be those set forth in the HCAO. If, within thirty (30) days after receiving City ’s written notice of a breach of this License for violating the HCAO, Licensee fails to cure such breach or, if such breach cannot reasonably be cured within such 30- day period, Licensee fails to comme nce efforts to cure within such period, or thereafter fails to diligently pursue such cure to completion, City will have the remedie s se t forth in Section 12Q.5(f)(1- 5). Each of these remedies will be exercisable individually or in combination with any other rights or remedies available to City. (d) Any Contract or Subcontract regarding services to be performed on the License Area entered into by Licensee will require the Contractors and Subcontractors, as applicable, to comply with the requirements of the HCAO and will contain contractual obligations substantially the same as those set forth in this Section. Licensee will notify the Purchasing Department when it enters into such a Contract or Subcontract and will certify to the Purchasing Department that it has notified the Contractor or Subcontractor of the obligations under the HCAO and has imposed the requi rements o f th e HCAO on the Contractor or Subcontractor through written agreement with such Contractor or Subcontractor . Licensee will be responsible for ensuring compliance with the HCAO by each Contractor and Subcontractor performing services on the License Area.
If any Contractor or Subcontractor fails to comply, City may pursue the remedies set forth in this Section against Licensee based on the Contr actor’s or Subcontractor ’s failure to comply, provided that the Contracting Department has first provided Licensee wi th notice an d a n opportunity to cure the violation.
(e) Licensee will not discharge, reprimand, penalize, reduce the compensation of, or otherwise discriminate against, any employee for notifying City of any issue relating to the HCAO, for opposing any pr actice proscribed by the HCAO, for participating in any proceedings related to the HCAO, or for seeking to assert or enforce any rights under the HCAO by any lawful means.
(f) Licensee represents and warrants that it is not an entity that was set up or is being used, for the purpose of evading the requirements of the HCAO. (g) Licensee will keep itself informed of the requirements of the HCAO, as they ma y change from time to time.
(h) Upon request, Licensee will provide reports to City in accordance with any reporting standards promulgated by City under the HCAO, including reports on Subcontractors or Contractors.
(i) Within five (5) business days after any request by City, Licensee will provide City with access to pertinent records relating to any Licensee ’s comp liance with the HCAO. In addition, City and its officers, agen ts, and employees may conduct random audits of Licensee at any time during the term of thi s License. Licensee will cooperate with City in connection with any such audit.
DocuSign Envelope ID: 6262E68C-E741-49B0-BDF4-1CFA20771367 22 Rev April 2023
28. 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 boar d on which an appointee of tha t individual serves, from making any campaign contribution to (a) the City elective officer, (b) a candidate for the office held by such individual, or (c) a committee controlled by such individual or candidate, at any time fr om the commencement of negotiations for the contract until the later of either the termination of negot iations fo r su ch 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 h ave a total anti cipated or actual value of $ 100,000 or more. Licensee further acknowledges that (i) the prohibition on contributions applies t o each Licensee; each member o f Licensee’s board of directors, and Licensee ’s chief executive officer, chief fina ncial 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 a ny committee that is sponsored or controlled by Licensee; and (ii) within thirty (30) days of the s ubmission of a proposal for the contract, the City department see king to enter into the contract must notify the Ethics Commission of the parties and any subcontractor to the contract. Additionally, Licensee certifies it has info rmed each of the persons describe d in the preceding sentence of the prohibitions contained in Section 1.126 by the time it submitted a proposal for the c ontract to City, and has provided the names of the persons required to be informed to the City department seeking to enter in to that con tract within thirty (30) days of submitting its contra ct proposal to the City department receiving that submittal, and a cknowledges the City department receiving that submittal was required to notify the Ethics Commission of those persons.
29. T ropical Hardwoods and Virgin Redwoods . City urges companies not to i mport, purchase, obtain, or use for any purpose, any tropical hardw ood, tropical hardwood wood product, virgin redwood, or virgin redwood wood product, except as express ly permitted by the application of Sections 802(b) and 803(b) o f the San Francisco Environment Code. E xcept as permitted by the application of Sections 802(b) and 803(b), Licensee will not use or incorporate any tropical hardwood, tropical hardwood wood product, vi rgin redwood, or virgin redwood wood product in the performance of this License.
30. T axes, Assessments, Licenses, License Fees , and Liens. (a) Licensee recognizes and understands t hat this License may create a possessory interest subject to property taxation and that Licensee may be subject to the payment of proper ty taxes levied on such interest. Licensee further recognizes and understands that any tr ansfer or assignment permitted under this License and any exercise of any option to renew or extend thi s 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 will pay taxes of any kind, including possessory interest taxes, that may be lawfully assessed on the i nterest created by this License and will pay all other taxes, excises, licenses, permit charges , and assessments based on Licens ee’s usage of the License Area that may be imposed upon Licensee by law, all of which will be paid when the same become due and payable and before delinquency.
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(c) Licensee will not allow or suf fer a lien for any such taxes or charges to be imposed upon the Li cense Area or upon any equipment or property located on the License Area without promptly discharging t he same, p rovided that Licensee may contest the validity of the same by paying under protest or posting adequate ( at City’s sole discretion) security dur ing any such contest.
31. Notices.
(a) Any notice, consent, or approval required or permitted to be given under this License will be in writing and will be given by (i) hand delivery, against receipt, (ii) reliable next-business-day courier service that provides confi rmation of delivery, or (iii) United States registered or certified mail, postage prepaid, return receipt required, and addressed as follows (or to such other address as either party may from time to time specify in writing to the oth er upon five (5) days’ prior, written notice in the manner provided above):
City or the SFPUC: Real Estate Services Division
San Francisco Public Utilities Commission
525 Golden Gate Avenue, 10th Floor
San Francisco, CA 94102
Attn: Real Estate Director
Re: P4377 – Pacesetter, Inc.
Telephone No.: (415) 487-5210
Licensee: Pacesetter, Inc.,
Dept-315 / Bldg. AP52-S
Re: P4377 – Pacesetter, Inc.
Abbott Laboratories
200 Abbott Park Rd.
Department 315, Bldg. AP52S
200 Abbott Park Road
Abbott Park, Illinois 60064-3537
Attention: Coert Davis, Senior Director of Corporate
Real Estate
Telephone No.: (224) 668-2149
Email: [email protected]
With copy to:
Abbott Laboratories
Legal Regulatory
Department 32RC, Bldg. AP6A-2
100 Abbott Park Road
Abbott Park, Illinois 60064
Attention: Real Estate Matters
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Billing Address: St. Jude Medical
Re: P4377 – Pacesetter, Inc.
15900 Valley View Court
Sylmar, CA 91342
Telephone No.: (818) 362-6822
Email: [email protected]
A properly addressed notice transmitted by one of the foregoing methods will be deemed received upon the confirmed date of delivery, attempted delivery, or rejected delivery, whichever occurs first. Any e -mail addresses, tel ephone numbers, or facsimile numbers provided by one party to the other will be for convenience of communication only; neither party may give official or binding notice orally or by e-mail or facsimile. The effectiv e time of a notice will not be affected by the receipt, prior to receipt of the original, of an oral notice or an e -mail or telefacsimile copy of the notice.
(b) Emergency Contacts. Licensee wil l immediately notify the S FPUC’s Millbrae Dispatch facility by phone at (650) 872- 5900 of any emergency or incident requiring emergency response.
32. Prohibition of Tobac co Sales and Advertising . No advertising or sale of cigarettes or tobacco products is all owed on the License Area. This advertising prohibition includes the placement of the name of a co mpany producing cigarettes or tobacco products or the name of any cigarette or tobacco product in any promotion of any event or product.
33. Pr ohibition of Alcoholic B everage Advertising. No advertising of alcoholic beverages is allowed on the License Area. For p urposes of this Section, “alcohol ic beverage ” will be defined as set forth in California Business and Professions Code Section 23004, and will not include cleaning solutions, medical supplies , and other products and substances not intended for drinking. T his advertising prohibition includes the placement of the name of a company producing alcoholic beverages or the name of any alcoholic beverage in any prom otion of any event or product.
34. R estrict ions on the Use of Pest icides. Chapter 3 of the San Francisco Environment Code (the Integrated Pest Management Program Ordinance or “ IPM Ordinance”) describes an integrated pest management ( “IPM”) policy to be implemented by all City departments.
Licensee will not use or apply or allow the use or application of any pesticides on the License Area or contract with any person or entity to provide pest abatement or control services to the License Area without first receiving City ’s written approval of an I PM plan that (a) lists, to the extent reasonably possible, the type s and estimated quantities of p esticides that Licensee may need to apply to the License Area during the term of this License, (b) describes the steps Licensee will take to meet the City ’s IPM Policy described in Section 300 of the IPM Ordinance and (c) identifies, by name, title, addres s, and telephone number, an individual to act as the Licensee’s primary IPM contact person with City. Licensee will comply, and will require all of Licensee’s contractors to comply, with the IPM plan approved by Ci ty and will comply with the requirements of Sections 300(d), 302, 304, 305(f), 305(g), and 306 of the IPM Ordinance, as if Licensee were a City department. Among other matters, such provisions of the IPM Ordinance:
(i) provide for the use of pesticides only as a l ast resort, ( ii) prohibit the use or application of pesticides on property owned by City, except for pesticides granted an exemption under Section 303 of the IPM Ordinance (incl uding pesticides included on the most curr ent Reduced DocuSign Envelope ID: 6262E68C-E741-49B0-BDF4-1CFA20771367 25 Rev April 2023
Risk Pestic ide 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 C ity all pesticide use at the License Area by Licensee’s staff or contractors.
If Licensee or License e’s contractor will apply pesti cides to outdoor areas at the License Area, Licensee must first obta in a written recommendation from a person holding a valid Agricultural Pest Co ntrol Advisor license i ssued by the Ca lifornia Department of Pest icide Regulation ( “CDPR”) and any such pesticide application will be made only by or under the supervision of a person holding a valid, CDPR -issued Qualified Applicator c ertificate or Qualified Applicator license. City’s current Reduced Risk Pesticide Lis t and additional details about pest managemen t on City property can be found on the San Francisco Department of t he Environment website, http://sfenvironment.org/ipm.
35. Conflict of In terest. Licensee acknowledges that it is familiar with the provisions o f Section 15.103 of City’ s Charter, Article III, Chapter 2 of City’ s Campaign and Governmental Conduct Code, and Section 87100 et seq. and Section 1090 et seq. of the California Government Code and certifies that i t does not know of any facts related to its use of the License Area pursuant to the terms of this License that would constitute a violation of said provisions . I f Licensee becomes aware of any such fact during the te rm of thi s License, Licensee will immediately notify City.
36. D isclosure. Ci ty’s Sunshine Ordinance (San Francisco Administrative Code Chapter 67) and the State Public Records Law (Gov ’t Code Section 6250 et seq.), apply to this Li cense and all records, info rmation, and mat erials submitted to City in connectio n with this License.
Accordingly, 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 Cit y to disclose any records, informat ion, and materials subm itted to City in connection with this License.
37. Fo od Service and Packaging Waste Reduction. Licensee wi ll 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 remed ies provided therein, and implement ing guidelines and rule s. The provisions of Chapter 16 are incorporated into this License by this reference and made a part of this License as though full y set forth. Capitaliz ed terms used in this Section that a re 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, lesse es, and licensees may n ot use Disposable Food Service Ware that co ntains Polystyrene Foam in City Fac ilities while performing under a City contract, lease, or licens e, and will instead use suitable Biodegradable/Compostable or Recyclable Disposable Food Service Ware. This provision is a material term of this License.
38. Sev erability . If any provision of t his License, or its application to any person, entity, or circumstance, will be held to be invalid or unenforceable by a court of competent jurisdiction, the remainder of this Li cense, or the application of such pr ovision to persons, entities , or circumstances other than those a s to wh ich it is invalid or unenf orceable, will not be affected thereby, and each other provision of this License will be valid and be enforceable to the f ullest extent permitted by law, except to t he extent that enforcement of this Lic ense without the DocuSign Envelope ID: 6262E68C-E741-49B0-BDF4-1CFA20771367 26 Rev April 2023
invalidated provision would be unreasonable or inequitable under all the circumstan ces or would frustrate a fundamental purpose of this License.
39. Cooperative D rafting. This License has been draf ted thr ough a cooperative effort of both Parties, and both Partie s have had an opportunity to have the License reviewed and revised by legal counsel. No party will be considered the drafter of this License, and no presumption or rule that an ambiguity wil l be construed against the party drafting the clause will apply to the interpretation or enforcement of this License.
40. C riminal History in Hiring and Employment Decisions . (a) Unless exempt, Licensee will comply with and be bound by all of the provisions of San Francisco Administrative Code Chapter 12T (Criminal History in Hiring and Employment Decisions; “Chapter 12T”), which are hereby incorporated into this License by reference as the same may be amend ed from time to time, with respect to applicants and employees of Licensee who would be or are performi ng work at the License Area. Capitalized terms used in this Section that are not otherwise defined in this License will have the meanings assigned to such terms in Chapter 12T.
(b) Licensee will incorporate by refe rence t he provisions of Chapter 12T in all contracts to perform w ork wit hin the License Area and w ill require all contractors to comply with such provisions. Licensee ’s failure to comply with the obligations in this subsection will constitute a material breach of the License.
(c) Licensee and its contractors performing work in the License Area will not inquire about, require disclosure of, or if such information is received, base an Adverse Action on an applicant’s or potential applicant for employment, or employee’s: (i) Arrest not leading to a Conviction, unless the Arre st is undergoing an active pending criminal investigation or trial that has not yet been resolved; ( ii) participation in or completio n of a diversion or a deferral of judgment program; ( iii) a Convi ction that has been judicially dism issed, expunged, voided, invalidated, or otherwise rendered inoperative; (iv) a Conviction or any other adjudication in the juvenile justice system; (v) a C onviction that is more than seven years old, from the date of sentencing; or (vi) information pertaining to an offense other than a felony or misdemeanor, s uch as an infraction.
(d) Licensee and its contract ors will not inquire about or require applicants, pot ential applicants for employment, or employees to disclose on any employment application the facts or details of any conviction history, unresolved arrest, or any m atter identified in subsection (c) above. Licensee and its contractor s will not require such disclosure or make such inquiry until either after the first live interview with the person, or after a conditional offer of employment. (e) Licensee and its contractors will state in all solicitations or advertisements for employees that are reasonably likely to reach persons who are reasonably likely to seek employment with Licensee or its contractor at the License Area, that the Lic ensee or contractor will consider for employment qualified applicants wit h criminal histories in a manner consistent with the requirements of Chapter 12T.
(f) Licensee and its contractor s will post the notice prepared by the Offic e of Labor Standards Enforcement (“OLSE”), available on OLSE ’s website, in a conspicuous place at the DocuSign Envelope ID: 6262E68C-E741-49B0-BDF4-1CFA20771367 27 Rev April 2023
License Area and at other workplaces within San Franci sco where interviews f or job opportunities at the License Area. The notice will be posted in Englis h, Spanish, Chinese, and any language spoken by at least five percent (5%) of the employees at the License Area or other workplace at which it is posted.
(g) Upon any failure to comply with the requirements of Chapter 12T, City will have the right to pursue any r ights or remedies av ailable under Chapter 12T or the License, including a penalty of $50 for a second violation and $100 for a subsequent violation for e ach employee, applicant, or other person as to whom a violation oc curred or continued, or termination or suspension in whole or in part of the License.
(h) If L icensee has any questions about the applicability of Chapter 12T, it may contact City’s Real Estate Division for additiona l information. City ’s Real Estate D ivision may consult with the Director of C ity’s Office of Contrac t Admin istration who may also gra nt a waiver, as set forth in Section 12T.8.
41. San Francisco Packaged Water Ordinance. Licensee will comply with San Francisco Environment Code Chapter 24 ( “Chapter 24”). Licensee will not sell, provide o r 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 th e Envir onment. If Licensee violates this req uirement, City may e xercise all remedies in this License and the Director of the City’ s Department o f the Environment may impose administrative fines as set forth in Chapter 24.
42. G eneral Provisions . (a) This Lic ense 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 will be effective unless in writing and signed by an officer or other authorized representative, and only to the ex tent expressly provided in such written waiver. No waiver will be deemed a subsequent or c ontinuing 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 t he entire agreement betw een the Parties regarding the subject matter of this License, and all prior writ ten or oral negotiations, discussions, understandings , and agreements are m erged into this License. (e) The Section and other headings of this Licen se are for convenience of r eference only and will be disrega rded in the interpretation of this License. (f) Time is of the essence in all matters relating to this License. (g) This License will be governed by California law and City’s Charter. (h) If either party commences an act ion against the other or a disput e arises under this License, the prevailing par ty will be entitled to recover from the other reasona ble attorneys ’ fees an d costs. For purposes of this Licen se and t he indemnifications set forth in this License, reasonable attorneys’ fees of City will 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 will be joint and se veral. (j) Licensee may not record this License or any memorandum of this License. (k) Subject to the prohibition agains t assignments or other transfers by Licensee hereunder, this License will be binding upon and inure to the benefit of the Parties and their respective heirs, representatives, succes sors, and assigns. (l) Any sale or conveyance of the property burdened by this License by City will automatically revoke this License. (m) Licensee hereby represent and warrant that Licensee is a duly form ed or organized (as applicable) and validly existing entity under the laws of California that Licensee is in good standing and qualified to do business in Califor nia (and covenants to maintain such DocuSign Envelope ID: 6262E68C-E741-49B0-BDF4-1CFA20771367 28 Rev April 2023
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 si gning on behalf of Licensee are authorized to do so. Upon City’ s req uest, Licensee will provide City with evidence reasonably satisfactory to City confirming the foregoing representations and warranties. (n) 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. (o) Whenever this License requires City’s or the SFPUC’s consent or approva l, the General Manager of the SFPUC , or his or her designee, will be authorized to provide suc h 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 will be effective unless given, made, or exercised in writing. (p) This License may be exe cuted in two or more counterparts, each of which will be deemed an original, but all of which taken together will constitute one and the same instrument. (q) 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 TH IS
LICENSE, NO OFFICER OR EMPLOYEE OF CITY HAS AUTHORITY TO COMMIT CITY TO THIS LICENSE UNLESS AND UNTIL CITY ’S PUBLIC UT ILITIES COMMISSION
WILL HAVE DULY ADOP TED A R ESOLUTION APPROVING THIS LICENSE AND AUTHORIZING THE TRANSACTIONS CONTEMPLATED IN THIS LIC ENSE.
THEREFORE, ANY OBLIGATIONS OR LIABILITIES OF CITY UNDER THIS LICENSE
ARE CONTINGENT UPON ADOPT ION OF SUCH A RESOLUTION, AND THIS LIC ENSE WILL 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 DEPARTM ENT, CO MMISSION, OR AGENCY OF CITY
WILL NOT B E D EEMED TO IMPLY TH AT SUCH RESOLUTION WILL BE ENACTED, NOR WILL ANY SUCH APPROVAL CREATE ANY BINDING OBLIGATIONS ON CITY.
The City shall not issue or m ake any public announcement or press rel ease regarding this License or its subject matter or the p arties without Licensee’s prior written consent, except for any such disclosure that either (a ) is required fo r it to comply with its rights and obligations under this License or (b), in the opinion of the City’s counsel, is reasonably believed to be required by law.
[SIGNATURES ON FOLLOWING PAGE]
DocuSign Envelope ID: 6262E68C-E741-49B0-BDF4-1CFA20771367 29 Rev April 2023
LICENSEE REPRESENTS AND WARRANTS TO CITY THAT IT HAS READ AND
UNDERSTANDS THE CONTENTS OF THIS LICENSE, HAS HAD AN OPPORTUNITY TO
REVIEW AND DISCUSS IT WITH COUNSEL OF ITS CHOOSING, AND AGREES TO COMPLY WITH AND BE BOUND BY ALL OF ITS PROVISIONS.
LICENSEE:
PACESETTER, INC.,
a Delaware corporation
By: ____________________________________
Its: ____________________________________
Date: ____________________________________
CITY:
CITY AND COUNTY OF SAN FRANCISCO,
a municipal corporation
By: ____________________________________
DENNIS J. HERRERA
General Manager
San Francisco Public Utilities Commission
Date: ____________________________________
APPROVED AS TO FORM:
DAVID CHIU
City Attorney
By: ____________________________
Anna Parlato Gunderson
Deputy City Attorney
Authorized by
San Francisco Public Utilities Commission
Resolution No. _________________________
Adopted: _________________________
DocuSign Envelope ID: 6262E68C-E741-49B0-BDF4-1CFA20771367 03/14/2024 | 8:37:21 AM PDT
DVP, Real Estate
EXHIBIT A
Description of License Area
All that certain real property located in the County of Sa nta Clara, California, de scribed as follows:
Approximately 37,000 square feet of SFPUC Parcel N o. 172 adjacent to 645 Almanor Avenue in Sunnyvale, California according to SFPUC records and as shown on the d rawing attached as Exhibit B and made a part of this License.
DocuSign Envelope ID: 6262E68C-E741-49B0-BDF4-1CFA20771367
EXHIBIT B
Depiction of License Area
[see attached]
DocuSign Envelope ID: 6262E68C-E741-49B0-BDF4-1CFA20771367 HY 101HY 101 RAMP
£¤101
´
0 50 100 150 20025
Feet
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.
SFPUC Fee Property
SFPUC Pipelines
License Area
03.08.2018 HR
£¤237
£
¤
101
Sunnyvale
Exhibit B
£¤101
645
Almanor Ave.
License Area
License Area
SFPUC Parcel No. 172
at Almanor Ave.
Sunnyvale, California
Mathilda Ave.
Almanor Ave.
DocuSign Envelope ID: 6262E68C-E741-49B0-BDF4-1CFA20771367
EXHIBIT C
Deed
[see attached]
DocuSign Envelope ID: 6262E68C-E741-49B0-BDF4-1CFA20771367 DocuSign Envelope ID: 6262E68C-E741-49B0-BDF4-1CFA20771367 DocuSign Envelope ID: 6262E68C-E741-49B0-BDF4-1CFA20771367 DocuSign Envelope ID: 6262E68C-E741-49B0-BDF4-1CFA20771367 DocuSign Envelope ID: 6262E68C-E741-49B0-BDF4-1CFA20771367 DocuSign Envelope ID: 6262E68C-E741-49B0-BDF4-1CFA20771367
EXHIBIT D
Sublicense Area
[see attached]
DocuSign Envelope ID: 6262E68C-E741-49B0-BDF4-1CFA20771367 ´
0 30 60 90 12015
Feet
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.
SFPUC Fee Property
SFPUC Pipelines
Exhibit D
Sublicense Area
Valley Water and Pacesetter
SFPUC Property
06.24.2020 HR
£¤101
£¤
237
Sunnyvale
San Francisco Public Utilities Commission
Pacesetter License Area
Valley Water Sublicense Area
Ingress and Egress Path
DocuSign Envelope ID: 6262E68C-E741-49B0-BDF4-1CFA20771367
EXHIBIT E
Form of Valley Water Sublicense
[see attached]
DocuSign Envelope ID: 6262E68C-E741-49B0-BDF4-1CFA20771367
PERMISSION TO ENTER
In accordance with California Code of Civil Procedure §1245.010 et seq
Pacesetter, Inc., a Delaware corporation, hereinafter referred to as "License Holder," is the licensee under that certain license by and between the City and County of San Francisco (“Owner”) and Pacesetter, Inc., License No. 4377, dated ______________ (the “License”).
Pursuant to the License, License Holder hereby grants permission to the Santa Clara Valley Water District (VALLEY WATER), its officers, employees, agents, and contractors, collectively hereinafter "VALLEY WATER," to enter upon Owner's property at the location identified on the attached Exhibit A (the "Property") for the following purposes:
A. Accommodate VALLEY WATER's construction staging and access through the Property for installation of the proposed rock slope protection as part of the proposed channel improvements within the Sunnyvale West Channel as depicted on the engineered drawings attached as Exhibit B (“Engineered Drawings”).
B. Any additional rights VALLEY WATER desires regarding the Property beyond those described and shown in the Engineered Drawings, would be the subject of a different written agreement to be negotiated between Owner/License Holder and VALLEY WATER.
C. VALLEY WATER acknowledges and agrees that Owner and License Holder shall continue to have continuous access to the portion of Property identified as Project Temporary Ingress/Egress on Exhibit A.
Owner requires this Permission to Enter to be approved by Owner and the License Holder to allow VALLEY WATER to use the Property for construction staging and access (the “work”)
as part of the proposed channel improvements within the Sunnyvale West Channel.
License Holder grants permission subject to the following conditions:
1. VALLEY WATER shall indemnify, defend and save and hold Owner and License Holder harmless from all claims and liability for damage to persons and/or property arising from the use of the Property by VALLEY WATER.
2. A portion of the Property will be temporarily impacted by VALLEY WATER’s proposed adjacent work associated with the Project; impacts will include temporary use of 20 existing parking stalls within License Holder’s License area for construction staging.
VALLEY WATER will install temporary security fencing prior to beginning any work associated with the Project. While the temporary fencing is in place, VALLEY WATER shall take reasonable steps to keep the fenced area in a clean, safe, and secure Project: Sunnyvale East and West Channels Flood
Protection Project
Property Owner: City and County of San Francisco
License Holder: Pacesetter, Inc. (formerly St. Jude Medical Center)
APN: 165-44-008
Property Address: 645 Almanor Avenue, Sunnyvale, CA
Project No.: 26074002
Permit File No.:
DocuSign Envelope ID: 6262E68C-E741-49B0-BDF4-1CFA20771367 Sunnyvale East and West Channels Flood Protection Project Permission to Enter
SFPUC/Pacesetter, Inc (APN 165-44-008)
condition, and to discourage vandalism, vagrancy, loitering and similar activities.
3. VALLEY WATER shall procure at its expense and keep in effect, and cause its contractor, to procure, at its expense and keep in effect at all times during the course of the work, commercially reasonable insurance, adequate to cover VALLEY WATER’S obligations under this Permission to Enter, and shall name as additional insured in the liability policies the City and County of San Francisco and its Public Utilities Commission, and their respective officers, agents, volunteers, and employees and License Holder. Prior to commencement of the work, and at Owner’s or License Holder’s request at any time, VALLEY WATER shall deliver to Owner and License Holder certificates of insurance evidencing the insurance coverage required by this Permission to Enter, together with complete copies of the policies at Owner’s or License Holder’s request. The minimum coverage of insurance shall be as follows:
(a) General Liability Insurance with limits not less than $5,000,000 each occurrence combined single limit for bodily injury and property damage, with a minimum aggregate limit of $5,000,000 including coverage for contractual liability, independent contractors, explosion, collapse and underground (XCU), personal injury, broadform property damage, products and completed operations; and (b) Automobile Liability Insurance not less than $1,000,000 each occurrence combined single limit for bodily injury and property damage, including coverage for owned, non-owned, and hired automobiles, as applicable, if VALLEY WATER or its contractor uses or causes to be used any vehicles in connection with its performance of the work or use of the Property; and (c) workers’ compensation insurance with employer’s liability coverage of not less than $1,000,000 each accident. The workers’ compensation policy shall be endorsed with a waiver of subrogation in favor of Owner and License Holder for all work performed by VALLEY WATER, its employees, agents, contractors, and subcontractors on or about the Property.
At all times, all policies shall be in form and content, and with coverage types and amounts, satisfactory to Owner’s Risk Manager, and shall remain subject to Owner and License Holder’s periodic review of limits and types of insurance to be carried. All required liability insurance shall specify that such policies are primary insurance to any other insurance available to the additional insureds, with respect to any claims arising out of the work and that the insurance applies separately to each insured against whom claim is made or suit is brought. All policies shall be endorsed to require at least thirty (30) days’ prior written notice to Owner and License Holder of cancellation or intended non-renewal. Insurance companies shall be legally authorized to engage in the business of furnishing insurance in the State of California. All insurance companies shall have a current A.M. Best Rating no less than “A-, VIII” and shall be satisfactory to Owner and License Holder. If VALLEY WATER or its contractor fails to procure such insurance, or to deliver such policies or certificates, Owner may procure, at its option, the same for the account of VALLEY WATER, and the resulting cost shall be paid to Owner by VALLEY WATER within five (5) days after delivery to VALLEY WATER of bills for such costs.
DocuSign Envelope ID: 6262E68C-E741-49B0-BDF4-1CFA20771367 Sunnyvale East and West Channels Flood Protection Project Permission to Enter
SFPUC/Pacesetter, Inc (APN 165-44-008)
4. VALLEY WATER acknowledges and agrees that it is using the Property in its “as is, where as” condition and with any and all faults and latent and patent defects and exc ept as otherwise expressly provided for herein, without any express or implied representation or warranty by Owner/ License Holder.
5. VALLEY WATER shall remove its temporary fence and shall restore the Property to a condition similar to the condition that existed prior to VALLEY WATER 's installation of the temporary fence by the end of the term of this agreement in accordance with paragraph 5 below.
6. Permission hereby granted is not to be construed as a grant of title or any interest in the Property. VALLEY WATER shall keep the Property free and clear of all mechanics' liens arising, or alleged to arise, in connection with any VALLEY WATER’s work, including without limitation, work performed, labor or materials supplied or delivered, or similar activities performed by VALLEY WATER, VALLEY WATER’s contractors or at VALLEY WATER's request or for its benefit. If any mechanics' liens are placed on the Property in connection with VALLEY WATER’s activities set forth in this Permission to Enter, VALLEY WATER shall diligently pursue all necessary actions to remove such liens from title, either by payment or by recording a lien release bond in the manner specified in California Civil Code Section 3143 or any successor statute and as reasonably acceptable to License Holder. This Permission to Enter is personal to VALLEY WATER, and VALLEY WATER shall not assign, transfer, convey or encumber the license and other rights herein granted.
7. VALLEY WATER shall provide advance written notice to Owner, a minimum of 10 weeks, prior to entering onto the Property to perform activities described and shown in the Engineered Drawings. The term of this Permission to Enter is to begin the date VALLEY WATER first enters onto the Property to perform activities permitted under Section A, above, and shall terminate upon the earlier of (i) four months after the date VALLEY WATER first enters the Property, (ii) upon completion of the activities and installation work described and shown in the Engineered Drawings, and (iii) July 31, 2025.
8. VALLEY WATER shall pay the License Holder the sum of $2,600.00 per month for this Permission to Enter.
9. VALLEY WATER will notify SFPUC Millbrae Dispatch at (650) 872-5900 at least 48 hours prior to commencing any activity or work and again at the conclusion of VALLEY WATER’S activities as described and shown in the Engineered Drawings.
10. VALLEY WATER shall not issue or make any public announcement, press release or other public disclosure regarding this Permission to Enter or its subject matter or without the License Holder’s prior written consent, except for any such disclosure that is, either required for a party to comply with its rights and obligations under the Permission to Enter, or which in the opinion of VALLEY WATER’s counsel, required by law.
11. This Permission to Enter may be executed in identical counterpart copies, each of which shall be an original, but all of which taken together shall constitute one and the DocuSign Envelope ID: 6262E68C-E741-49B0-BDF4-1CFA20771367 Sunnyvale East and West Channels Flood Protection Project Permission to Enter
SFPUC/Pacesetter, Inc (APN 165-44-008)
same agreement.
IN WITNESS WHEREOF, the License Holder and VALLEY WATER have executed this Permission to Enter as follows:
LICENSE HOLDER:
PACESETTER, INC.
a Delaware corporation
By: ______________________________
Signatory:_________________________
Title: _____________________________
Date: ____________________________
VALLEY WATER agrees to each of the above conditions.
VALLEY WATER:
SANTA CLARA VALLEY WATER DISTRICT, APPROVED AS TO FORM:
a special district
By: ___________________________________ By: ________________________ Norma J. Camacho, Joseph Aranda
Chief Executive Officer Assistant District Counsel
Date: _____________________________ Date: ______________________
DocuSign Envelope ID: 6262E68C-E741-49B0-BDF4-1CFA20771367 Sunnyvale East and West Channels Flood Protection Project Permission to Enter
SFPUC/Pacesetter, Inc (APN 165-44-008)
Consented:
OWNER:
CITY AND COUNTY OF SAN FRANCISCO
a municipal corporation
By: ____________________________
DENNIS J. HERRERA
General Manager
San Francisco Public Utilities Commission
Date: ___________________________
APPROVED AS TO FORM:
DAVID CHIU
City Attorney
By: ______________________________
Anna Parlato Gunderson
Deputy City Attorney
cc: Legal, Project file
Attachments – Exhibit A & B
DocuSign Envelope ID: 6262E68C-E741-49B0-BDF4-1CFA20771367 Exhibit A and Exhibit B to be provided.
DocuSign Envelope ID: 6262E68C-E741-49B0-BDF4-1CFA20771367 HY 101HY 101 RAMP
£¤101
´
0 50 100 150 20025
Feet
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.
SFPUC Fee Property
SFPUC Pipelines
License Area
03.08.2018 HR
£¤237
£
¤
101
Sunnyvale
Exhibit B
£¤101
645
Almanor Ave.
License Area
License Area
SFPUC Parcel No. 172
at Almanor Ave.
Sunnyvale, California
Mathilda Ave.
Almanor Ave.