DEPARTMENT Real Estate Services Division AGENDA NO. 9
MEETING DATE December 10, 2024
AGENDA ITEM
Public Utilities Commission
City and County of San Francisco
Real Estate Agreement: Regular Calendar
Real Estate Director: Rosanna Russell
Adopt a Declaration of Surplus Property and a Declaration of Exempt Surplus Property pursuant to California Surplus Lands Act; Recommend to the Board of Supervisors the approval of the S ale of Approximately 67,802 square feet of R eal Property D esignated as SFPUC Parcel No. 9 in San Bruno to the City of San Bruno for $5,000; and Authorize the General Manager to execute an Agreement for Sale of Real Estate Summary of
Proposed
Commission
Action:
Adopt findings declaring as “exempt surplus land” and “surplus land ” approximately 67,802 square feet of real property designated as San Mateo County Assessor’s Parcel Numbers 093-340- 060 and 093-340- 020 and also designated as SFPUC Parcel No. 9 in San Bruno, California , owned by the City and County of San Francisco, under the jurisdiction of the San Francisco Public Utilities Commission ; recommend to the Board of Supervisors the approval of an Agreement for Sale of Real Estate for the sale of Parcel No. 9 to the City of San Bruno for $5,000; and authorize the General Manager to execute the Agreement after
approval from the Board of Supervisors and
Mayor.
Background: The City and County of San Francisco (City), through the San Francisco Public Utilities Commission ( SFPUC), owns Parcel No. 9 (Parcel No. 9) in the City of San Bruno (San Bruno) and other parcels pursuant to that certain deed entitled “Market Street Railway Company to the City and County of San Francisco Transportation System Properties dated as of September 29, 1944” recorded in Book 1161 at Page 1 in the Official Records of San Mateo County. The SFPUC refers to the lands conveyed under the deed as the “Former Muni Right of Way.”
The City, through the SFPUC, and San Bruno are parties to a Revocable Permit dated August 5, 1999 (1999 Permit). Under the 1999 Permit, San Bruno uses portions of the Form er Muni Right of Way, including SFPUC Parcel No. 9, to maintain a roadway, landscaping, and underground utility facilities on Huntington Avenue in San Bruno.
San Bruno desires to construct a two -way public bicycle path (Project) on Parcel No. 9, among other San Bruno parcels. By the Project, San Bruno seeks to narrow the existing roadway median and vehicular travel lanes on Huntington Avenue f rom Forest Lane to San Bruno Avenue to accommodate the construction of the bicycle path while also maintaining a pe destrian Agreement: Authorize the Sale of SFPUC Parcel No. 9 in San Mateo County Commission Meeting Date: December 10, 2024
sidewalk along the northbound direction of the roadway.
At San Bruno’s request, the SFPUC issued to San Bruno Revocable License No. P4588 dated July 14, 2023 (2023 License)
. The 2023 License, which
partially revoked and superseded the 1999 Permit only as to Parcel No. 9, provides San Bruno with the temporary possession and use of Parcel No. 9 to construct certain Project components to meet its Project certification deadline.
The 2023
License expires on the earlier of July 31, 2025, or the date the Agreement for Sale of Real Estate ( Agreement) is fully executed by the parties, and the deeds granting fee interests to San Bruno are recorded in the Official Records of San Mateo County.
San Bruno’s Proposed Purchase
San Bruno desires to acquire SFPUC Parcel No. 9 from the City to own the Project improvements and the underlying real property. The SFPUC does not have any utility infrastructure within Parcel No. 9, and Parcel No. 9 is heavily encumbered with surface and
subsurface easements that the San Mateo
County Transportation Authority condemned for the Bay Area Rapid Transit (BART) San Francisco Airport extension.
Under San Francisco Administrative Code Section 23.3, the City may convey Parcel No. 9 to San Bruno wi thout a competitive bidding process if the Board of Supervisors determines a competitive process “is impractical, impossible, or is otherwise not in the public interest, including, for example only and not by way of limitation, when the Real Property is no
t capable of independent
development, will be exchanged for other Real Property, or when the Board determines that a negotiated direct Conveyance of the Real Property will further a public purpose.”
In this case, a competitive bidding process is impractic al and otherwise not in the public interest because Parcel No. 9 is currently used as a roadway, median, and for sidewalk improvements and is not available for independent development. Parcel No. 9’s dimensions and location adjacent to Huntington Avenue make its use by any other entity impractical. T hus, th ere is no possible party other than San Bruno to which the City, through the SFPUC, may convey Parcel No. 9.
San Bruno’s installation of a bicycle track on Parcel No. 9 demonstrates San Bruno’s intention to use Parcel No. 9 for a public purpose.
Declaration of Underutilization and Request for Adoption of Findings of “Surplus Land” and “Exempt Surplus Land”
On August 8, 2023, the Assistant General Managers of the Water Enterprise, Power Enterprise, and Wastewater Enterprise each declared that Parcel No. 9 is not essential to the SFPUC’s utility needs.
SFPUC staff recommends that this Commission adopt a finding that Parcel No. 9 is “surplus land,” as defined in California Government Code Section Agreement: Authorize the Sale of SFPUC Parcel No. 9 in San Mateo County Commission Meeting Date: December 10, 2024
54221(b) because the land has been determined to be no longer necessary for the SFPUC’s use.
In addition, SFPUC staff recommends that this Commission adopt a finding that
Parcel No. 9 is “exempt surplus land,” as defined in California Government Code Section 54221(f)(1)(D) because Parcel No. 9 i s surplus land that City is transferring to another local agency for the agency’s use.
Valuation of Parcel No. 9
San Bruno provided an Appraisal Report performed by Erik Woodhouse, MAI of Associated Right of Way Services, Inc. , which determined the fair market value of Parcel No. 9 as of February 3, 2023, to be a nominal value, and thus concluded it to be $5,000. At the request of the SFPUC, the City’s Director of Property reviewed and agreed with the nominal value determination on May 12, 2023. The $5,000 fair market value determination falls below the City’s Administrative Code appraisal requirement for any property valued at or above $10,000.
On July 9, 2024, San Bruno agreed to purchase Parcel No. 9 for $5,000 under the terms of the Agreement . Under the Agreement, City, through the SFPUC, will sell Parcel No. 9 to San Bruno on an “as is-where is basis”.
The proposed conveyance of Parcel No. 9 is subject to approval by the Board of Supervisors and the Mayor.
Environmental
Review:
On July 13, 2023 , the City of San Bruno determined the Project to be categorically exempt from environmental review under the CEQA Guidelines section 15301, Class 1 (Existing Facilities ) and statutorily exempt from environmental review under the CEQA section 21080.25. The Notice of Exemption can be found here: link.
Budget & Costs: The City, through the SFPUC, desires to convey Parcel No. 9 for the sum of Five Thousand Dollars ($5,000), which represents fair and just compensation for Parcel No. 9. In addition, San Bruno will pay any prorated property taxes, assessments, and other charges as of the date of sale, including San Bruno’s portion of escrow fees, recording costs, and other closing costs, if any.
Description of
Agreement:
Parties to Agreement: City and County of San Francisco, acting through the SFPUC, and City of San
Bruno.
Purpose: The sale of approximately 67,802 square
feet of real property in San Bruno.
Location: SFPUC Parcel No. 9, also designated as
San Mateo County Assessor ’s Parcel Nos.
093-340-020 and 093-340-060 adjacent to
Huntington Avenue in San Bruno.
Effective Date: The date on which each of the following Agreement: Authorize the Sale of SFPUC Parcel No. 9 in San Mateo County Commission Meeting Date: December 10, 2024
has been completed: (a) the Agreement has
been mutually executed and delivered by
San Bruno; (b) the SFPUC has adopted a
resolution approving and authorizing the
Agreement; and (c) City’s Board of
Supervisors and May or have adopted or
enacted a resolution or an ordinance
approving and authorizing the Agreement.
Attachments: 1. Agreement for Sale of Real Estate
2. Map of Parcel No. 9
PUBLIC UTILITIES COMMISSION
City and County of San Francisco
RESOLUTION NO.
WHEREAS, The City and County of San Francisco ( City) owns certain real property presently under the jurisdiction of the San Francisco Public Utilities Commission ( SFPUC) located on Huntington Avenue, San Bruno, California, designated as SFPUC Parcel No. 9 and also designated in the County of San Mateo as Assessor’s Parcel Nos. 093-340-020 and 093-340- 060 (Property); and
WHEREAS, The City of San Bruno (San Bruno) desires to construct a two- way bicycle path and related roadway improvements (Project) on Parcel No. 9; and
WHEREAS, San Bruno desires to acquire from City approximately 67,802 square feet consisting of the entirety of SFPUC Parcel No. 9 for its Project; and
WHEREAS, In contemplation of entering into an Agreement for Sa le of Real Estate (Agreement), San Bruno and the SFPUC enter ed into a Revocable License with a term of up to two years and expiring on July 31, 2025, providing San Bruno temporary possession and use of SFPUC Parcel No. 9 for the construction of certain Project components to meet its project certification deadlines; and
WHEREAS, San Bruno and the City desire to enter into an Agreement for the City to sell Parcel No. 9 to San Bruno; and
WHEREAS, The SFPUC determined that it has no utility use for Parcel No. 9 , as evidenced by an SFPUC S tatement of U nderutilization dated August 8 , 2023, signed by the Assistant General Managers of the Water, Wastewater, and Power Enterprises; and
WHEREAS, The Property is “surplus land”, as defined i n California Government Code Section 54221(b) because it is owned in fee simple by the City and not necessary for the City’s use; and
WHEREAS, The Property is “exempt surplus land”, as defined in California Government Code Section 54221(f)(1)(D) because i t is surplus land that the City is transferring to another local, state, or federal agency for the agency’s use; and
WHEREAS, Under Chapter 23.3 of the City’s Administrative Code, the City may convey Parcel No. 9 to San Bruno without a competitive bidding process if the Board of Supervisors determines that a competitive process is impractical, impossible, or is otherwise not in the public interest; and
WHEREAS, In this case, a competitive bidding process is impractical and is otherwise not in the public interest because Parcel No. 9 is currently used as a roadway, median and
sidewalk improvements and is not available for independent development; and
WHEREAS, The City, through the SFPUC, intends to sell Parcel No. 9 to San Bruno on an “as-is with all faults” basis pursuant to the terms of the Agreement; and
WHEREAS, San Bruno’s offer of fair and just compensation in the s um of Five Thousand Dollars ($5,000) for its purchase of the fee interests of Parcel No. 9 falls below the City’s Administrative Code appraisal requirement for any property valued at or above $10,000; and
WHEREAS, On July 13, 2023, the City of San Bruno determined the Project to be categorically exempt from environmental review under the CEQA Guidelines section 15301, Class 1 (Existing Facilities) and statutorily exempt from environmental review under the CEQA section 21080.25; now, therefore, be it
RESOLVED, That this Commission hereby declares Parcel No. 9 surplus to the SFPUC’s utility needs in accordance with Section 8B.121(e) of the City Charter; and, be it
FURTHER RESOLVED, That this Commission finds that Parcel No. 9 is “surplus land”, as defined in California Government Code Section 55421(b) because it is owned in fee simple by City and not necessary for City’s use; and, be it
FURTHER RESOLVED, That this Commission finds that Parcel No. 9 is “exempt surplus land” as defined in Government Code Section 5422l(f)(1)(D) because it is surplus land that the City is transferring to another local agency and state agency for the agencies’ use; and, be it
FURTHER RESOLVED, That this Commission asks the Board of Supervisors to determine, in accordance w ith Chapter 23.3 of the Administrative Code, that a competitive bidding process for the conveyance of Parcel No. 9 is impractical and is otherwise not in the public interest because the sale of Parcel No. 9 to San Bruno will avoid the expense, time, effort, and risk of eminent domain litigation and will support the construction of public highway improvements and because Parcel No. 9 ’s location and dimension make use by any other entity impractical; and, be it
FURTHER RESOLVED, That this Commission hereby a pproves the terms and conditions of the Agreement; and, be it
FURTHER RESOLVED, That this Commission hereby authorizes the SFPUC General Manager to execute the Agreement, upon approval from the Board of Supervisors and Mayor; and, be it
FURTHER RESOLVED, That this Commission hereby authorizes the City’s Director of Real Property and/or the SFPUC General Manager to execute a deed conveying fee interests in Parcel No. 9 to San Bruno; and, be it
FURTHER RESOLVED, That this Commission hereby ratifies, approves, and authorizes all actions taken to date by any City official in connection with this Agreement; and, be it
FURTHER RESOLVED, That this Commission her eby authorizes the SFPUC General Manager and/or City’s Director of Property to enter into any amendments or modifications to the Agreement or without limitation its exhibits or attachments , that the General Manager and/or City’s Director of Property determines, in consultation with the City Att orney, are in the best interest of the City; do not materially increase the obligations or liabilities of the City; are necessary or advisable to effectuate the purposes and intent of the Agreement or this resolution; and are in compliance with all applicable laws, including the City Charter.
I hereby certify that the foregoing resolution was adopted by the Public Utilities Commission at its meeting of December 10, 2024.
Director of Commission Affairs
San Francisco Public Utilities Commission
AGREEMENT FOR SALE OF REAL ESTATE
by and between
t
he CITY AND COUNTY OF SAN FRANCISCO,
by and through its Public Utilities Commission,
a California municipal corporation,
as Sel ler,
and
the CITY OF SAN BRUNO,
a California municipal corporation,
as Buyer
for the sale and purchase of
Parcel No. 9,
comprising approximately 1.54 acres
of the
f
ormer Market Street Railway Company
Transportation Sys tem Properties C onveyed to
the City and County of San Francisco
located in San Bruno, California
___________________, 20___
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i
TABLE OF CONTENTS
Page
1. SALE AND PURCHASE 2
1.1 Property Included in Sale 2
2. PURCHASE PRICE 2
3. TITLE 2
3.1 Conditions of Title 2
3.2 Intentionally Omitted. 3
3.3 Intentionally Omitted. 3
3.4 Buyer’s Responsibility for Title Insurance 3
4. “AS-IS” PURCHASE; RELEASE OF SAN FRANCISCO 3
4.1 Buyer’s Independent Investigation 3
4.2 Property Disclosures 4
4.3 Entry and Indemnity 4
4.4 “As-Is” Purchase 5
4.5 Release of San Francisco 5
5. CONDITIONS PRECEDENT 6
5.1 Buyer’s Conditions Precedent 6
5.2 Contingency Period 7
5.3 Seller’s Condition Precedent 7
5.4 Failure of Seller’s Conditions Precedent 7
6. ESCROW AND CLOSING 8
6.1 Escrow 8
6.2 Closing Date 8
6.3 Deposit of Documents 8
6.4 Prorations 8
6.5 Title Company as Real Estate Reporting Person 9
7. RISK OF LOSS 9
7.1 Loss 9
7.2 Self-Insurance 10
8. EXPENSES 10
8.1 Expenses 10
8.2 Brokers 10
9. RESERVED 11
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10. GENERAL PROVISIONS 11
10.1 Notices 11
10.2 Successors and Assigns 11
10.3 Amendments 12
10.4 Authority of Buyer 12
10.5 Buyer’s Representations and Warranties 12
10.6 Governing Law 12
10.7 Merger of Prior Agreements 12
10.8 Parties and Their Agents 13
10.9 Interpretation of Agreement 13
10.10 Reserved 13
10.11 Time of Essence 13
10.12 No Merger 13
10.13 Non-Liability of San Francisco Officials, Employees and Agents 13
10.14 Conflicts of Interest 13
10.15 Notification of Limitations on Contributions 14
10.16 Sunshine Ordinance 14
10.17 Tropical Hardwood and Virgin Redwood Ban 14
10.18 No Recording 14
10.19 Effective Date 14
10.20 Severability 15
10.21 Acceptance by Buyer 15
10.22 Counterparts 15
10.23 Cooperative Drafting. 15
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LIST OF EXHIBITS
Exhibit A Depiction of the Property
Exhibit B Description of the Property
Exhibit C Form of Quitclaim Deed
Schedule 1 Seller’s Disclosures
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AGREEMENT FOR SALE OF REAL ESTATE
(Parcel No. 9 of the
Former Market Street Railway Company
Transportation System Properties conveyed to
the City and County of San Francisco and
located in San Bruno, California)
THIS AGREEMENT FOR SALE OF REAL ESTATE (this “Agreement”) dated for reference purposes only as of _____________, 20__, is by and between the CITY AND COUNTY OF SAN F RANCISCO (“ San Francisco” or “ Seller”), a California municipa l corporation, by and through its Publ ic Utilities Commission (“ SFPUC”), and the CITY OF SAN BRUNO, a California municipal corporation (“San Bruno” or “Buyer”). Seller and Buyer are sometimes collectively referred to in this Agreement as the “ Parties” or singularly as “Party.”
RECITALS
A. San Francisco owns approximately 1.54 acres of real property identified as San Mateo County Assessor’s Parcel Numbers 093- 340-060 and 093- 340-020 in San Bruno.
This property is also designated Parcel No. 9 (“Parcel No. 9” or the “Property”) of the lands granted to San Francisco under that certain deed entitled “Market Street Railway Company to the City and County of San Francisco Transportation System Properties dated as of September 29, 1944.” The SFPUC refers to the lands conveyed under the deed as the “Former Muni Right of Way.”
B. San Francisco and San Bruno are parties to a Revocable Permit dated August 5, 1999 (“1999 Permit”) whereby San Francisco licenses to San Bruno portions of Parcel No. 10 and portions of Parcels No. 9, 11, and 12 of the former Muni Right of Way ( “Permit Area”).
Under the Permit, San Bruno uses the Permit Area, including Parcel No. 9, to maintain a roadway, landscaping, and underground utility facilities on Huntington Avenue in San Bruno.
C. San Bruno seeks to construct a two-way bicycle track (“Project ”) on Parcel No. 9, among other properties not owned by San Francisco. The Project will narrow the existing roadway median and vehicle travel lanes on Huntington Avenue to accommodate the construction of the bicycle track while also maintaini ng a pedestrian sidewalk along the northbound direction of the roadway.
D. San Bruno seeks to install and maintain the Project improvements on Huntington Avenue between Forest Lane and San B runo Avenue on Parcel No. 9 . Sa n Bruno desires to purchase from San Francisco, through the SFPUC, Parcel No. 9 described and depicted on the attached Exhibit A and Exhibit B respectively, to facilitate San Bruno’s Project.
E. San Bruno acknowledges and agrees that (i) t ime is of the essenc e regarding its obligations to comple te this sale transaction no later than two (2) years from the Effective Date of the Memorandum of Agreement dated August 14, 2023 between the Parties (“ Transaction Deadline”); and (ii) but for San Bruno’s express promise to complete the sale agreement by t he Transaction Deadline, San Francisco would not agree to enter into the Agreement or issue a two-year revocable l icense to allow San B runo to install permanent improvements on Parcel No. 9.
F. The SFPUC determined that conveying the Property is not required for its utility needs. On _____________, 2024, the SFPUC Commission adopted Resolution No. ____________ declaring the Property as “surplus land” and “exempt surplus land” under the State Surplus Lands Act (California G overnment Code Sec tion 54220, et seq .). Because the Docusign Envelope ID: B69D2B4A-4C82-420D-B12B-1B3F3E06CC6A
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Parties are public agencies, the State Surplus Lands Act noticing requirements do not apply to the sale of the Property as contemplated in this Agreement.
G. San Bruno desires to purchase Parcel No. 9, and San Francisco is willing to sell Parcel No. 9, subject to approval by the SFPUC’s Commission and San Francisco’s Board of Supervisors and Mayor, on the terms and conditions set forth below.
ACCORDINGLY, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
AGREEMENT
1. SALE AND PURCHASE
1.1 Property Included in Sale
Subject to the terms, covenants and conditions set forth in this Agreement , San Francisco agrees to sell the Property to San Bruno, and S an Bruno agrees to purchase the Property from San Francisco, further identified as San Mateo County Assessor’s Parcel Numbers 093-340-060 and 093-340-020 in located in the City of San Bruno, County of San Mateo, State of California, as more particularly described in the attached Exhibit B.
2. PURCHASE PRICE
The purchase price for the Property is Five Thousand Dollars ($5,000) (the “Purchase Price”). San Bruno shall pay the Purchase Price as follows:
(a) Buyer has deposit ed into escrow with Fidel ity National Title Company (“Title Co mpany”), 2099 Gateway Place, Suite 500, San Jose , CA 95110, Attention: Kassi Gutierrez, the sum of Five Thousand Dollars $5,000 as an earnest money deposit ( “Deposit”).
The Deposit shall be held in an interest -bearing account, and all interest thereon shall be deemed a part of the Deposit. At the Closing (defined below) , the Deposit shall be paid to San Francisco and credited against the Purchase Price.
(b) The Deposit covers the entire Purchase Price, and Buyer shall ther efore not owe a balance at the consummation of the purchase and sale contemplated by this Agreement (the “Closing”).
All sums payable under this Agreement including the Deposit, shall be paid in immediately available funds of lawful money of the United States of America.
3. TITLE
3.1 Conditions of Title
At the Closing San Francisco shall quitclaim interest in and to the Property to Buyer by quitclaim deed in the form attached as Exhibit C (“Deed”). Title to the Property shall be subject to (a) liens of local real estate taxes and assessments, (b) all existing exceptions and encumbrances, whether or not disclosed by a current preliminary title report or the public records or any other documents reviewed by Buyer pursuant to Section 5.1 below , and any other exceptions to title which would be disclosed by an accurate and thorough investigation, survey, or inspection of the Property, and (c) all items of which Buyer has actual or constructive notice or knowledge . All of the foregoing exceptions to title shall be refer red to collectively as the “Conditions of Title. ” Without limiting the foregoing, Buyer acknowledges receipt of a Docusign Envelope ID: B69D2B4A-4C82-420D-B12B-1B3F3E06CC6A
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preliminary report issued by the Title Company under Order No. 54606-21-00954, dated August 6, 2021, covering the Property and approves all of the exceptions contained therein.
3.2 Intentionally Omitted.
3.3 Intentionally Omitted.
3.4 Buyer’s Responsibility for Title Insurance
Buyer understands and agrees that the right, title and interest in the Property shall not exceed that vested in San Francisco, and San Francisco is u nder no obligation to furnish any policy of title insurance in connection with this transaction. Buyer recognizes that any fences or other physical monument of the Property’ s boundary lines may not correspond to the legal description of the Propert y. San Francisco shall not be responsible for any discrepancies in the parcel area or location of the property lines or any other matters that an accurate survey or inspection might reveal. It is Buyer’s sole responsibility to obtain a survey from an independen t surveyor and a policy of title insurance from a title company, if desired.
4. “AS-IS” PURCHASE; RELEASE OF SAN FRANCISCO
4.1 Buyer’s Independent Investigation
Buyer represents and warrants to San Francisco that Buyer has performed a dil igent and thorough inspection and investigat ion of each and every aspect of the Property, either independently or through agents of Buyer’s choosing, including the following matters (collectively, the “Property Conditions”):
(a) All matters relating to title i ncluding the exist ence, q uality, nature and adequacy of San Francisco’s interest in the Property and the existence of physically open and legally sufficient access to the Property.
(b) The zoning and other legal status of the Property, including the compliance of the Property or its operation with any applicable codes, laws, regulations, statutes, ordinances and private or public covenants, conditions and restrictions, and all governmental and other legal requirements such as taxes, assessments, use permit requ irements and building and fire codes.
(c) The quality, nature, adequacy and physical condition of the Property, including, but not limited to, the structural elements, foundation, landscaping, and the electrical, mechanical, plumbing, sewage and utility system s, facilities and appliances, and all other physical and functional aspects of the Property.
(d) The quality, nature, adequacy, and physical, geological and environmental condition of the Property (including soils and any groundwater), and the presence or abse nce of any Hazardous Mate rials in, on, under or about the Property or any other real property in the vicinity of the Property. As used in this Agreement, “ Hazardous Material ” shall mean any material that, because of its quantity, concentration or physical or chemical chara cteristics, is now or hereafter deemed by any federal, state or local governmental authority to pose a present or potential hazard to human health or safety or to the environment. (e) The suitability of the Property for Buyer’s intended uses. Buyer represents and warrants that its intended use of the Property is to facilitate San Bruno’s Project. (f) The economics and development potential, if any, of the Property.
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(g) All other matters of material significance affecting the Property.
4.2 Property Disclosures
(a) California law requ ires sellers to dis close to buyers the presence or potential presence of certain Hazardous Materials. Accordingly, Buyer is hereby advised that occupation of the Property may lead to exposure to Hazardous Materials such as, but not limited to, gasoline, diesel and other veh icle fluids, vehicle exhaust, office maintenance fluids, tobacco smoke, methane and building materials containing chemicals, such as formaldehyde. By execution of this Agreement, Buyer acknowledges that the notices and warnings s et forth above satisfy the requirements of California Health and Safety Code Section 25359.7 and related statutes.
(b) According to the United States Geological Survey, roughly one -quarter of the San Francisco Bay region may be exposed to liq uefaction. More i nformation about the potential areas of liquefaction may be found at
http://geomaps.wr.usgs.gov/sfgeo/liquefaction/susceptibility.htm . Pursuant to California Public
Resources Code Section 2694, the P roperty is in a seismic hazard zone. By execution of this Agreement, Buyer acknowledges the disclosures set forth above. (c) B uyer acknowledges that San Francisco has disclosed the matters relating to the Property r eferred to in the attached Schedule 1. Nothing contained in such schedule shall limit any of the provisions of this Article or relieve Buyer of its obligations to conduct a diligent inquiry under this Agreement , nor shall any such matters limit any of the provisions of Section 4.4 [“As-Is” Purchase] or Section 4.5 [Release of San Francisco].
4.3 Entry and Indemnity
In connection with any entry by Buyer or its Agents (defined in Section 10.8 [Parties and Their Agent s] below) onto the Property, Buyer shall give San Francisco reasonable advance written notice of such entry and shall conduct such entry and any inspections in connection therewith so as to minimize, to the extent possible, interference with uses being made of the Property and otherwise in a manner and on terms and conditions acceptable to San Francisco.
All entries by Buyer or its Agents onto the Property to perform any testing or other investigations that could affect the physical condition of the Property ( including soil borings) or the uses thereof will be made only pursuant to the terms an d conditions of San Francisco’s standard form of l icense. Without limiting the foregoing, prior to any entry to perform any on- site testing, Buyer shall give San Francisco written notice thereof, including the identity of the company or persons who will p erform such testing, the precise time and location of the testing, and the proposed scope of the testing. San Francisco shall have the right to approve, disapprove, or condition and limit the proposed testing, in San Francisco’s sole di scretion, within te n (10) business days after receipt of such notice. If Buyer or its agents, employees or contractors take any sample from the Property in connection with any approved testing, Buyer shall provide to San Francisco a portion of such sample being tested to al low San Francisco, if it so chooses, to perform its own testing. San Francisco or its representative may be present to observe any testing or other inspection performed on the Property. Buyer shall promptly deliver to San Francisco copies of any reports relating to any testing or other inspection of the Property performed by Buyer or its agents, employees or contractors, but shall not deliver copies of any such reports to any other person or entity without Buyer’s prior written approval. Buye r shall keep all test results and information strictly confidential, and shall indemnify, reimburse, defend and hold San Francisco harmless from and against any loss, cost, expense, or damage resulting from Buyer’s failure to keep any information obtained from an inspection or testing of the Property strictly confidential; provided, however, Buyer shall not be liable if and to the extent Buyer is required to disclose such information pursuant to a court order. Buyer shall comply Docusign Envelope ID: B69D2B4A-4C82-420D-B12B-1B3F3E06CC6A
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with all laws, ordinances, rules, regulations, orders and the like in connection with any entry onto or testing of the Property.
Buyer shall maintain, and shall require that its Agents maintain, public liability and property damage insurance in amounts and in form and substance adeq uate to insure against all liability of Buyer and its Agents, arising out of any entry or inspection of the Property in connection with the transaction contemplated by this Agreement, and Buyer shall provide San Francisco with evidence of such insurance coverage upon request from San Francisco.
To the fullest extent permitted under law, Buyer shall indemnify, defend and hold harmless San Francisco, its Agents, and each of them, from and against any liabilities, costs, damages, losses, liens, claims a nd expenses (including reasonable fees of attorneys, experts and consultants and related costs) arising out of or relating to any entry on, under or about the Property by Buyer, its Agents, contractors and subcontractors in performing the inspections, testing, or inquiries provided for in this Agreement, whether prior to the date of this Agreement or during the term hereof, including any injuries or deaths to any persons ( including Buyer’s Agents) and damage to any property, from any cause whatsoever. The foregoing indemnity shall survive beyond the Closing, or, if the sale is not consummated, beyond the termination of this Agreement.
4.4 “As-Is” Purchase
BUYER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT
SAN FRANCISCO IS SELLING AND BUYER IS PUR CHASING SAN FRANCI SCO’S INTEREST IN T HE PROPERTY ON AN “ AS-IS WITH ALL FAULTS ” BASIS. BUYER IS
RELYING SOLELY ON ITS INDEPENDENT INVESTIGATION AND NOT ON ANY
REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR
IMPLIED, FROM SAN FRANCISCO OR ITS AGENTS AS TO ANY MATTE RS CONCERNING THE PROPERTY, ITS SUITABILITY FOR BUYER’S INTENDED USES OR ANY OF THE PROPERTY CONDITIONS. SAN FRANCISCO DOES NOT GUARANTEE
THE LEGAL, PHYSICAL, GEOLOGICAL, ENVIRONMENTAL OR OTHER CONDITIONS
OF THE PROPERTY, NOR DOES IT ASSUME ANY RES PONSIBILITY FOR THE
COMPLIANCE OF THE PROPERTY OR ITS USE WITH ANY STATUTE, ORDINANCE OR REGULATION. IT IS BUYER’S SOLE RESPONSIBILITY TO DETERMINE ALL
BUILDING, PLANNING, ZONING, AND OTHER REGULATIONS RELATING TO THE PROPERTY AND THE USES TO WHICH IT MAY BE PUT.
4.5 Release of San Francisco
As part of its agreement to purchase the Property in its “As-Is With All Faults” condition, Buyer, on behalf of itself and its successors and assigns, waives any right to recover from, and forever releases and discharges, San Francisco, its officers, employees, agents, contractors , and representatives, and their respective heirs, successors, legal representatives , and assigns, from any and all demands, claims, legal , or administrative proceedings, losses, liabilities, damag es, penalties, fines, liens, judgments, costs , or expenses whatsoever ( including attorneys’ fees and costs), whether direct or indirect, known or unknown, foreseen or unforeseen, that may arise on account of or in any way be connected wit h (a) Buyer’s and its Age nts and cust omer’s past, present and future use of the Property, (b) the physical, geological, or environmental condition of the Property, including any Hazardous Material in, on, under, above or about the Property, and (c) any federal, state, local , or ad ministrative law, rule, regulation, order or requirement applicable thereto, including the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ( “CERCLA”, also commonly known as the “ Superfund” law), as amended by Superfund A mendments and Reauthorization Act of 1986 ( “SARA”) (42 U.S.C.
Sections 9601-9657), the Resource Conservation and Recovery Act of 1976, as amended by the Solid Waste and Disposal Act of 1984 (collectively, “ RCRA”) (42 U.S.C. Sections 6901-6987), Docusign Envelope ID: B69D2B4A-4C82-420D-B12B-1B3F3E06CC6A
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the Federal Water Pollution Control Act, as amended by the Clean Water Act of 1977 (collectively the “ Clean Water Act ”) (33 U.S.C. Section 1251 et seq.), the Toxic Substances Control Act (“TSCA”) (15 U.S.C. Sections 2601-2629), Hazardous Materials Transportation Act (49 U.S.C. Section 1801 et seq.), the Carpenter -Presley-Tanner Hazardous Substance Account Law (commonly known as the “California Superfund” law) (California Health and Safety Code Sections 25300-25395), Hazardous Waste Control Act (Calif ornia Health and S afety C ode Section 25100 et seq.), Hazardous Materials Release Response Plans and Inventory Law (commonly known as the “ Business Plan Law ”) (California Health and Safety Code Section 25500 et seq.), Porter -Cologne Water Quality Control Ac t (California Wate r Code Section 13000 et seq.), and the Safe Drinking Water and Toxic Enforcement Act of 1986 (commonly known as “ Proposition 65”) (California Health and Safety Code Section 25249.5 et seq.).
In connection with the foregoing release, Buyer expressly waives the ben efits of Section 1542 of the California Civil Code, which provides as follows:
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 EX ECUTING THE RELEAS E AND T HAT, IF KNOW N BY
HIM OR HER , WOULD HAVE MATERIALLY AFFECTED HIS
OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED
PARTY.
BY PLACING ITS INITIALS BELOW, BUYER SPECIFICALLY ACKNOWLEDGES AND
CONFIRMS THE VALIDITY OF THE RELEASES MADE ABOVE AND THE FACT THA T
BUYER WAS REPRESE NTED BY COUNSEL WHO EXPLAINED, AT THE TIME THIS AGREEMENT WAS MADE, THE CONSEQUENCES OF THE ABOVE RELEASES.
INITIALS: BUYER:________________
5. CONDITIONS PRECEDENT
5.1 Buyer’s Conditions Precedent
Buyer’s obligation to purchase the Property is conditioned upon the following:
(a) Buyer’s review and approval of an updated preliminary title report, together with copies of the underlying documents.
(b) Buyer’s review and approval of the physical condition of the Property. (c) Buyer’s review and approval of all zoning, land use, building, environmental and other statutes, rules, or regulations applicable to the Property. (d) Buyer’s review and approval of soils reports and other documents of significance to the Property in San Francisco’s possession. San Francisco shall make availabl e to Buyer at San Francisco’s Real Estate Division’s offices, without representation or warranty of any kind whatsoever, all non- privileged items in its files relating to the Property for Buyer’s review and inspection, at Buyer’s sole cost, during normal business hours. Notwithstanding the foregoing, Buyer’s review shall not include a review of any of San Francisco’s internal memoranda or reports, any privileged or confidential information, or San Francisco’s appraisals of the Property, if any.
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5.2 Contingency Period
Buyer shall have until 5:00 p.m. San Francisco Time on the date that is ten (10) business days after the Effective Date to review and approve or waive Buyer’s Conditions (such period being referred to in this Ag reement as the “ Contingency Period”). If Buyer elects to proceed with the purchase of the Property, then Buyer shall, before the expiration of the Contingency Period, notify San Francisco in writing that Buyer has approved all such matters. If before the end of the Contingency P eriod Buyer fails to give San Francisco such written notice and fails to object to any of Buyer’s Conditions, then Buyer shall be deemed to have waived Buyer’s Conditions. Notwithstanding the foregoing, if Buyer objects to any of the matters contai ned within Section 5.1 within the Contingency Period, then San Francisco may, but shall have no obligation to remove or remedy any objectionable matter. If San Francisco agrees to remove or remedy the objectionable matter, it shall notif y Buyer within ten (10) d ays following Buyer’s notice of objection, and the Closing Date shall be delayed for so long as San Francisco diligently pursues such removal or remedy. If and when San Francisco elects not to remove or remedy the objectionable matter, which San Francisco may do at any time including following an initial election to pursue remedial or corrective actions, this Agreement shall automatically terminate, the Deposit shall be returned to Buyer, and neither party shall have any further rights or obligations under this Agreem ent except as provided in Section 4.3 [Entry and Indemnity], Section 8.2 [Brokers], or Section 10.4 [Authority of Buyer] or as otherwise expressly provided in this Agreement.
5.3 Seller’s Condition Precedent
The following are conditions prec edent to San Francisco’s obligation to sell the Property to Buyer (“Seller’s Conditions Precedent”):
(a) Buyer shall have performed all of its obligations pursuant to or in connection with this Agreement and all of Buyer’s representations and warranties shall be true and correct.
(b) A resolution approving and authorizing the transactions contemplated by this Agreement and finding that the public interest or necessity demands or will not be inconvenienced by the sale of the Property, shall have been adopted by San Francisco’s Board of Supervisors and Mayor, in their respective sole and absolute discretion, and duly enacted two weeks after SFPUC provides Buyer with documentation of the San Francisco Board of Supervisors’ approval but no later than February 28, 2025. (c) Title Company shall have agreed to be the real estate reporting person for the Closing in compliance with the Reporting Requirements (defined in Section 6.5 [Title Company as Real Estate Reporting Person] below).
5.4 Failure of Seller’s Conditions Precedent
Each of S eller’s Conditions Precedent are intended solely for the benefit of San Francisco. If any of Sell er’s Conditions Pre cedent are not satisfied as provided above, San Francisco may, at its option, terminate this Agreement. Upon any such termination, neither party shall have any further rights or obligations under this Agreement except as provided in Section 4.3 [Entry and Indemnity], Section 8.2 [Brokers], or Section 10.4 [Authority of Buyer] or as otherwise expressly provided in this Agreement.
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6. ESCROW AND CLOSING
6.1 Escrow
On the date within five (5) days after the Parties execute this Agreement, the Parties shall deposit an executed counterpart of this Agreement with the Title Company, and this instrument shall serve as the instructions to the Title Company as the escrow holder for consummation of the purchase and sale contemplated by thi s Agreement . The Parties agree to execute such supplementary escrow instructions as may be appropriate to enable the Title Company to comply with the terms of this Agreement; provided, however, in the event of any conflict between the provisions of this Agreement and any s upplementary escrow instructions, the terms of this Agreement shall control.
6.2 Closing Date
The Closing shall be held, and delivery of all items to be made at the Closing under the terms of this Agreement shall be made, at the offices of th e Title Company on (a) the date which is thirty (30) days after the expiration of the Contingency Period and enactment of the Board of Supervisor’s resolution referred to in Section 5.3(b) above, or if such date is not a business day, then upon the next ensuing business day, be fore 1:00 p.m. San Francisco time or (b) such other date and time as the Parties may mutually agree upon in writing (the “Closing Date”). Such date and time may not be extended without the prior written approval of both the Parties.
6.3 Deposit of Documents
(a) At o r before the Closing, San Francisco shall deposit into escrow the following items:
(i) the duly executed and acknowledged Deed conveying the Property to Buyer subject to the Conditions of Title;
(ii) duly executed and acknowledged Easements;
(b) At or before the Clo sing, Buyer sha ll deposit into escrow the following items:
(i) the funds necessary to close this transaction; and
(ii) an original Certificate of Acceptance of Property (“Certificate of Acceptance”) executed by Buyer and to be attached to the Deed prior to recordation. (c) The Parties shall each deposit such other instruments as are reasonably required by the Title Company or otherwise required to close the escrow and consummate the purchase of the Property in accordance with the terms of this Agreement. (d) San Francisco s hall deliver to Buyer originals (or to the extent originals are not available, copies) of any items that San Francisco is required to furnish Buyer copies of or make available at the Property pursuant to Section 5.1(e) above, within five (5) business days after the Closing Date.
6.4 Prorations
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of the Property, shall all be prorated as of 12:01 a.m. on the date the Deed is recorded, on the basis of a three hundred sixty- five (365)-day year. The Parties by this Agreement agree that if any of the above described prorations cannot be calculated accurately on the Closing Date, then the same shall be calculated as soon as reasonably practicable after the Closing Date and either party owing the other party a sum of money based on such subsequent proration(s ) shall promptly pay said sum to the other party.
6.5 Title Company as Real Estate Reporting Person
Section 6045(e) of the United States Internal Revenue Code of 1986 and the regulations promulgated thereunder (collectively, the “Reporting Requi rements”) requi re that certain information be made to the United States Internal Revenue Service, and a statement to be furnished to San Francisco, in connection with the Closing. The Parties agree that if the Closing occurs, Title Company will be the par ty responsible for closing the transaction contemplated in this Agreement and is by this Agreement designated as the real estate reporting person (as defined in the Reporting Requirements) for such transaction. Title Company shall perform all duties requi red of the real estate reporting person for the Closing under the Reporting Requirements, and the Parties shall each timely furnish Title Company with any information reasonably requested by Title Company and necessary for the performance of its duties under the Reporting Requirements with respect to the Closing.
7. RISK OF LOSS
7.1 Loss
San Francisco shall give Buyer notice of the occurrence of damage or destruction of, or the commencement of condemnation proceedings affecting, any portion of the Property. In the event that al l or any portion of the Property is condemned or destroyed or damaged by fire or other casualty prior to the Closing, then Buyer may, at its option to be exercised within ten (10) days of San Francisco’s notice of the occurrence of the damage o r destructio n or the commencement of condemnation proceedings, either terminate this Agreement or consummate the purchase for the full Purchase Price as required by the terms hereof. If Buyer elects to terminate this Agreement or fails to give S an Francisco notice within such ten (10) -day period that Buyer will proceed with the purchase, then this Agreement shall terminate at the end of such ten (10)-day period, the Title Company shall return the Deposit to Buyer, and neither party shall have any further r ights or obl igations under this Agreement except as provided in Section 4.3 [Entry and Indemnity], Section 8.2 [Brokers], or otherwise expressly provided in this Agreement.
If Buyer elects to proceed with the purchase of the Property, then upon the Clo sing, Buyer shall receive a credit against the Purchase Price payable under this Agreement equal to the amount of any insurance proceeds or condemnation awards actually collected by San Francisco as a result of any such damage or destruction or condemnatio n, plus the amount of any insurance deductible, less any sums expended by San Francisco toward the restoration or repair of the Property. If the proceeds or awards have not been collected as of the Closing, then San Francisco shall assign such proceeds or awards to Buye r, except to the extent needed to reimburse San Francisco for sums expended to collect such proceeds or repair or restore the Property, and Buyer shall not receive any credit against the Purchase Price with respect t o such proceeds or awards.
(a) Minor Loss
In the event there occurs any partial damage to the Property or destruction of any of the improvements thereon, or any condemnation proceeding with respect to a portion of the Property or improvements, between the date this Agreement is fully executed and the Closing Date, Buyer shall nonetheless be bound to purchase the Property for the full Purchase Price pursuant to the terms hereof, without regard to the occurrence or effect of any such damage, Docusign Envelope ID: B69D2B4A-4C82-420D-B12B-1B3F3E06CC6A
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destruction or condemnation proceeding, provided that the fol lowing conditions are satisfied:
(i) the cost to repair any damage or destruction, or the diminution on the fair market value of the remaining Property, as the case may be, does not exceed Five Thousand Dollars ($5,000), and (ii) upon the Closing, Buyer shall receive a credit against the Purchase Price equal to the amount of any insurance proceeds or condemnation awards that San Francisco collects as a result of any such event, plus the amount of any insurance deductible, but less any sums S an Francisco expends toward the restoration or repair of the Property. If San Francisco has not collected the proceeds or awards as of the Closing Date, then San Francisco shall assign such amounts to Buyer, e xcept to the extent necessary to reimburse San Francisco for sums San Francisco has expended to repair or restore the Property.
(b) Major Loss
If the amount of the damage or destruction or condemnation as described above exceeds Five Thousand Dollars ($ 5,000), then Buyer may, at its option to be within ten ( 10) business days of San Francisco’s notice of the occurrence of such event, either terminate this Agreement or consummate the purchase for the full Purchase Price pursuant to the term s hereof.
If Buyer elects to terminate this Agreement or fails to give San Francisco notice within such ten (10)-day period the Buyer will proceed with the purchase, then the Deposit shall be returned to Buyer and neither party shall have any further rights or obligation under this Agreement except as provided in Section 4.2 [ Property Di sclosures], Section 8.1 [Expenses], or Section 10.4 [Authority of Buyer] or otherwise expressly provided in this Agreement . If Buyer elects to proceed with the purchase of the Property, then upon the Closing, there shall be a credit against the Purchase Price due under this Agreement equal to the amount of any insurance proceeds or condemnation awards collected by San Francisco as a result of any such damage or destruction or condemnation, plus the amount of any insurance deductible, but les s any sums expended by San Francisco toward the restoration or repair of the Property. If San Francisco has not collected the proceeds or awards as of the Closing Date, then San Francisco shall assign such sums to Buyer, except to the extent necessary to rei mburse San Francisco for any sums San Francisco expended to repair or restore the Property.
7.2 Self-Insurance
Notwithstanding anything to the contrary above, Buyer acknowledges that San Francisco self-insures and shall not be obligated to purchase any thir d-party commercial liability insurance or property insurance.
8. EXPENSES
8.1 Expenses
Buyer shall pay the cost of the premium of a title insurance policy, a ll escrow and recording fees for the sale and San Francisco’s cost of obtaining a General Plan Referral from the San Fran cisco Planning Department . San Francisco shall pay any applicable documentary transfer taxes on the recordation of the Deed and other closing costs customarily paid by sel lers of real property in the City and County of San Francisco.
8.2 Brokers
The Parties represent and warrant to each other that no broker or finder was instrumental in arranging or bringing about this transaction and that there are no claims or rights for brokerage commissions or finder ’s fees in connection with the transactions c ontemplated by this Agreement. If any person brings a claim for a commission or finder ’s fee based on any contact, dealings, or communication with Buyer or San Francisco, then the party through whom such person makes a claim shall defend the other party from such claim, and shall indemnify the Docusign Envelope ID: B69D2B4A-4C82-420D-B12B-1B3F3E06CC6A
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indemnified party from, and hold the indemnified party against, any and all costs, damages, claims, liabilities, or expenses ( including reasonable attorneys ’ fees and disbursements) that the indemnified party incu rs in defending against the claim. The provisions of this Section shall survive the Closing, or, if the purchase and sale is not consummated for any reason, any termination of this Agreement.
9. RESERVED
10. GENERAL PROVISIONS
10.1 Notices
Any notice, consent, or approv al required or permitted to be given under this Agreement shall be in writing and shall be given by (a) hand delivery, against receipt, (b) reliable next - business-day courier service that confirms the delivery, or (c) United States registered or certified mail, postage prepaid, return receipt required, and addressed as follows (or to such other address as either party may from time to time specify in writing to the other upon five (5) days prior, written notice in the manner provider above):
SELLER:
San Francisco Public Utilities Commission
525 Golden Gate Avenue, 10th Floor
San Francisco, California 94102
Attn: Real Estate Director
Re: Parcel No. 9 Sale, San Bruno
with a copy to:
Office of the City Attorney
City Hall, Room 234
1 Dr. Carlton B. Goodlett Place
San Francisco, California 94102
Attn: Real Estate Transactions Team
Re: Parcel No. 9 Sale, San Bruno
BUYER:
Alex McIntyre, City Manager
City of San Bruno
567 El Camino Real
San Bruno, CA 94066
and
Trisha Ortiz
City Attorney
Richards, Watson & Gershon
One Sansome Street, Suite 2850
San Francisco, CA 94104
[email protected]
A properly addressed notice transmitted by one of the foregoing methods shall be deemed received upon the confirmed date of delivery, attempted delivery, or rejected delivery, whichever occurs first. Any e -mail addresses, telephone numbers, or facsimile numbers provided by one party to the other shall be for convenience of communication only; neither party may gi ve official or binding notice orally or by e-mail or facsimile. The effective time of a notice shall not be affected by the receipt, prior to receipt of the original, of an oral notice or an e -mail or facsimile copy of the notice.
10.2 Successors and Assigns
This Agreement shal l be binding upon, and inure to the benefit of, the Parties to thi s Agreement and their respective successors, heirs, legal representatives, administrators and assigns. Buyer’s rights and obligations under this Agreement shall not be assignable without the prior written consent of San Francisco; provided, however, even if San Francisco approves any such proposed assignment, in no event shall Buyer be released of any of its obligations under this Agreement.
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10.3 Amendments
This Agreement may be amended or modified only by a written instrument signed by the Parties.
10.4 Authority of Buyer
Buyer represents and warrants to San Francisco that Buyer is a California municipal corporation, duly organized, validly existing, and in good standing under the la ws of the State of California. Buyer further represents and warrants to San Francisco that this Agreement and all documents executed by Buyer, which are to be delivered to San Francisco at Closing: (a) are or at the time of Closing will be duly authorize d, executed and delivered by Buyer; (b) are or at the time of Closing will be legal, valid, and binding obligations of Buyer; and (c) do not and at the time of Closing will not violate any provision of any agreement or judicial order to which Buyer is a party or to which Buyer is subject. Notwithstanding anything to the contr ary in this Agreement, the foregoing representations and warranties and any and all other representations and warranties of Buyer contained in this Agreement or in other agreements or documents executed by Buyer in connection herewith, shall survive the Closing Date.
10.5 Buyer’s Representations and Warranties
Buyer makes the following representations as of the date of this Agreement and at all times throughout this Agreement:
(a) Buyer is a California municipal corporation, duly organized and validly existing and i n good standing under the laws of the jurisdiction in which it was formed. Buyer has duly authorized by all necessary action the execution, delivery, and performance of this Agreement. Buyer has duly executed and delivered this Agreement and this Agre ement constitutes a legal, valid , and binding obligation of Buyer, enforceable against Buyer in accordance with the terms hereof.
(b) Buyer represents and warrants to San Francisco that it ha s not been suspended, disciplined, or disbarred by, or prohibited from contracting with, any federal, state, or local governmental agency. In the event Buyer has been so suspended, disbarred, disciplined, or prohibited from contracting with any government al agency, it shal l immediately notify San Francisco of same and the reasons therefo re together with any relevant facts or information requested by San Francisco. Any such suspension, debarment, discipline , or prohibition may result in the termination or suspension of this Agreement. (c) No document or instrument furnished or to be furnished by the Buyer to San Francisco in connection with this Agreement contains or will contain any untrue statement of material fact or omits or will omit a material fact necess ary to make the st atements contained therein not misleading, under the circumstances under which any such statement shall have been made.
10.6 Governing Law
This Agreement shall be governed by, subject to, and construed in accordance with the laws of the State of California and San Francisco’s Charter and Administrative Code.
10.7 Merger of Prior Agreements
This Agreement, together with the exhibits hereto, contain any and all representations, warranties, and covenants made by the Parties and constitutes the entire understanding betwe en the Parties to this Agreement with respect to th e s ubject matte r hereof. Any prior Docusign Envelope ID: B69D2B4A-4C82-420D-B12B-1B3F3E06CC6A
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correspondence, memoranda, or agreements are replaced in total by this Agreement together with the exhibits to this Agreement.
10.8 Parties and Their Agents
The term “Buyer” as used in this Agreement shall include the plural as well as the singular. If Buyer consists of more than one (1) individual or entity, then the obligations under this Agreement imposed on Buyer shall be joint and several. As used in t his Agreement, the term “Agents” when used with respect to either par ty shall includ e the agents, employees, officers, contractors, and representatives of such party.
10.9 Interpretation of Agreement
The article, section , and other headings of this Agreement and the table of contents are for convenience of reference only and sha ll not affect t he meaning or interpretation of any provision contained in this Agreement. Whenever the context so requires, the use of the singular shall be deemed to include the plural and vice versa, and each gender reference shall be deemed to include the other and t he neuter. This Agreement has been negotiated at arm ’s length and between persons sophisticated and knowledgeable in the matters dealt with in this Agreement.
In addition, each party has been represented by experienced and knowledgeable legal counsel.
Accordingly, any rule of law (including California Civil Code Section 1654) or legal decision that would require interpretation of any ambiguities in this Agreement against the party that has drafted it is not applicable and is waived. The p rovisions of this Agreement shall be interpreted in a reasonable manner to effect the purposes of the Parties and this Agreement. Use of the word “including” or similar words will not be construed to limit any general term, statement, or other matter in this Agreement, whether or not language of non-limitation, such as “without limitation” or similar words, are used.
10.10 Reserved
10.11 Time of Essence
Time is of the essence with respect to the per formance of the Par ties’ respective obligations contained in this Agreement.
10.12 No Merger
The obligations contained in this Agreement shall not merge with the transfer of title to the Property but shall remain in effect until fulfilled.
10.13 Non-Liability of San Francisco Officials, Employees and Agents Notwithstanding anything to t he contrary in this Agreement, no elective or appointive board, commission, member, officer, employee , or agent of San Francisco shall be personally liable to Buyer, its successors and assigns, in the event of any default or breach by San Francisco or for any amount whic h may become due to Buyer, its successors and assigns, or for any obligation of San Francisco under this Agreement.
10.14 Conflicts of Interest
Through its execution of this Agreement, Buyer ackn owledges that it is familiar with the provisions of Article III, C hapter 2 of San Francisco’s Campaign and Governmental Conduct Code, and Section 87100 et seq. and Section 1090 et seq. of the Government Code of the State of California, and certifies that it does not know of any facts which constitute a violat ion of said Docusign Envelope ID: B69D2B4A-4C82-420D-B12B-1B3F3E06CC6A
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provisions and agrees that if it becomes aware of any such fact during the term of this Agreement, Buyer shall immediately notify San Francisco.
10.15 Notification of Limitations on Contributions
Through its execution of this Agreement, Buyer acknowl edges that i t is familiar with Section 1.126 of the San Francisco Campaign and Governmental Conduct Code, which prohibits any person who contracts with San Francisco for the selling or leasing of any la nd or building to or from San Francisco whenever such transaction would require the approval by a San Francisco elective officer, the board on which that San Francisco elective officer serves, or a board on which an appointee of that individual serves, fro m making any campaign contribution to (a) San Francisco elective officer, (b) a candidate for the office held by such individual, or (c) a committee controlled by such individual or candidate, at any time from the commencement of negotiations for the contr act until the later of either the termination of ne gotiations for such contract or twelve months after the date the contract is approved. Buyer 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 fis cal year have a total anticipated or actual value of $100,000 or more. Buyer further acknowledges that the prohibition on contributions applies to each Buyer; each member of Buyer’s board of directors, and Buyer’s chief executive officer, chief financial officer and chief operating officer; any person with an ownership interest of more than twenty percent (20%) in Buyer; any subcontractor listed in the contract; and any committee that is sponsored or contr olled by Buyer. Additionally, Buyer acknowledges t hat Buyer must inform each of the persons described in the preceding sentence of the prohibitions contained in Section 1.126. Buyer further agrees to provide to San Francisco the names of each person, entity or committee described above.
10.16 Sunshine Ordinance
Buyer underst ands and agrees that under San Francisco’s Sunshine Ordinance (San Francisco Administrative Code, Chapter 67) and the State Public Records Law (Gov. Code Section 6250 et seq.), this Agreement and any and all records, information, and materia ls submitted to San Francisco under this Agreement are public records subject to public disclosure.
Buyer by this Agreement acknowledges that San Francisco may disclose any records, information and materials submitted to San Francisco in connection with this Agreement.
10.17 Tropical Hardwood and Virgin Redwood Ban
The City and County of San Francisco urges companies not to import, purchase, obtain or use for any purpose, any tropical hardwood, tropical hardwood wood product, virgin redwood or virgin redwood wood p roduct except as expressly permitted by the application of Sections 802(b) and 803(b) of the San Francisco Environment Code.
10.18 No Recording
Neither this Agreement nor any memorandum or short form thereof may be recorded by Buyer.
10.19 Effective Date
As used in this Agreement, the term “Effective Date” shall mean the date on which both parties shall have executed this Agreement provided the Agreement and the transactions contemplated by the Ag reement shall have been authorized (a) in a manner required by law governing Buyer, (b) by a duly adopted resolution of San Francisco’s Public Utilities Commission, and (c) if required by San Francisco’s Charter, a duly adopted resolution of San Francisco’s Board of Supervisors and Mayor.
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10.20 Severability
If any provision of thi s A greement or the application thereof to any person, entity or circumstance shall be invalid or unenforceable, the remainder of this Agreement, or the application of such provision to persons, entities or circumstances other than those as to which it is i nvalid or unenf orceable, shall not be affected thereby, and each other provision of this Agreement shall be valid and be enforceable to the fullest extent permitted by law, except to the extent that enforc ement of this Agreement without the invalidated pro vision would be unreasonable or inequitable under all the circumstances or would frustrate a fundamental purpose of this Agreement.
10.21 Acceptance by Buyer
This Agreement shall be null and void unless it is ac cepted by Buyer and two (2) fully executed copies o f this Agreemen t are returned to San Francisco on or before 5:00 p.m.
San Francisco time , two weeks after SFPUC provides Buyer with documentation of the S an Francisco Board of Supervisors’ approval but no later than February 28, 2025.
10.22 Counterparts
This Agreement may be executed in two (2) or more counter parts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument.
10.23 Cooperative Drafting.
This Agreement has been drafted through a cooperative effort of both parties, and both parties have had an opportunity to have the Agreement reviewed and revised by legal couns el.
No party s hall be considered the drafter of this Agreement, and no presumption or rule that an ambiguity shall be construed against the party drafting the clause shall apply to the interpretation or enforcement of this Agreement.
NOTWITHSTANDING ANYTH ING TO THE CONT RARY CONTAINED IN THIS
AGREEMENT, BUYER ACKNOWLEDGES AND AGREES THAT NO OFFICER OR
EMPLOYEE OF S ELLER HAS AUTHORITY TO COMMIT S ELLER TO THIS AGREEMENT UNLESS AND UNTIL A R ESOLUTION OF S ELLER’S BOARD OF
SUPERVISORS SHALL HAVE BEEN DULY ENACTED APPROVING THIS AGREEMENT AND AUTHORIZING THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
THEREFORE, ANY OBLIGATIONS OR LIABILITIES OF S ELLER UNDER THIS
AGREEMENT ARE CONTINGENT UPON THE DUE ENACTMENT OF SUCH A RESOLUTION, AND THIS AGREEMENT SHALL BE NU LL AND VOID IF SELLER’S
BOARD OF SUPERVISORS AND MAYOR DO NOT APPROVE THIS AGREEMENT IN THEIR RESPECTIVE SOLE DISCRETION. APPROVAL OF THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT BY ANY DEPARTMENT, COM MISSION OR
AGENCY OF SELLER SHALL NOT BE DEEMED TO IMPLY THAT SUCH RESOLUTION
WILL BE ENACTED NOR WILL ANY SUCH APPROVAL CREATE ANY BINDING OBLIGATIONS ON SELLER.
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The Parties have duly executed this Agreement as of the respective dates written below.
SELLER:
CITY AND COUNTY OF SAN FRANCISCO,
a California municipal corporation
By: _______________________________
Dennis J. Herrera, General Manager
San Francisco Public Utilities
Commission
APPROVED AS TO FORM:
DAVID CHIU, City Attorney
By: _______________________________
Anna Parlato Gunderson
Deputy City Attorney
BUYER:
CITY OF SAN BRUNO,
a California municipal corporation
By: _______________________________
Alex McIntyre, City Manager
APPROVED AS TO FORM:
TRISHA ORTIZ, City Attorney
By: _______________________________
Docusign Envelope ID: B69D2B4A-4C82-420D-B12B-1B3F3E06CC6A By: _______________________
ATTEST:
LUPITA HUERTA, City Clerk
Rev 1/2019 A-1
EXHIBIT A
DEPICTION OF THE PROPERTY
[see attached]
Docusign Envelope ID: B69D2B4A-4C82-420D-B12B-1B3F3E06CC6A Docusign Envelope ID: B69D2B4A-4C82-420D-B12B-1B3F3E06CC6A
Rev 1/2019 B-1
EXHIBIT B
DESCRIPTION OF THE PROPERTY
[see attached]
Docusign Envelope ID: B69D2B4A-4C82-420D-B12B-1B3F3E06CC6A Docusign Envelope ID: B69D2B4A-4C82-420D-B12B-1B3F3E06CC6A Docusign Envelope ID: B69D2B4A-4C82-420D-B12B-1B3F3E06CC6A
C-1
EXHIBIT C
FORM OF QUITCLAIM DEED
RECORDING REQUESTED BY,
AND WHEN RECORDED RETURN TO:
Real Estate Division
City and County of San Francisco
25 Van Ness Avenue, Suite 400
San Francisco, California 94102
Attn: Director of Property
and
San Francisco Public Utilities Commission
Real Estate Services Division
525 Golden Gate Avenue, 10th Floor
San Francisco, California 94102
Attn: Real Estate Director
MAIL TAX STATEMENTS TO:
City of San Bruno
___________________________
___________________________
Attn: _____________________
The undersigned hereby declares this instrument to be exempt from Recording Fees (CA Govt. Code § 27383) and
Documentary Transfer Tax (CA Rev. & Tax Code § 11922 and S.F. Bus. & Tax Reg. Code § 1105)
Assessor Parcel No. 093-340-060
Assessor Parcel No. 093-340-020
(Space above this line reserved for Recorder’s use only)
QUITCLAIM DEED
(San Mateo County Assessor’s Parcel Numbers 093-340-060 and 093-340-020) FOR VALUABLE CONSIDERATION, receipt and adequacy of which are hereby acknowledged, t he CITY AND COUNTY OF SAN FRANCISCO, a California municipal corporation, pursuant to Resolution No. ______________, adopted by the Board of Supervisors on ______________, 2024 and approved by the Mayor on ____________, 2024, hereby RELEASES, REMISES AND QU ITCLAIMS to the CITY OF SAN BRUNO, a California municipal corporation, any and all right, title and interest San Francisco may have in and to the real property located in the City of San Bruno, State of California, described on the attached Exhibit B and made a part of this quitclaim deed.
Docusign Envelope ID: B69D2B4A-4C82-420D-B12B-1B3F3E06CC6A
C-2
Executed as of this _____ day of ______________, 202__.
CITY AND COUNTY OF SAN FRANCISCO,
a municipal corporation
By: ________________________________
ANDRICO PENICK
Director of Property
APPROVED AS TO FORM:
DAVID CHIU
City Attorney
By: ________________________________
Anna Parlato Gunderson
Deputy City Attorney
DESCRIPTION CHECKED/APPROVED:
By: ________________________________
R. Edward Peterson
Chief Surveyor
Docusign Envelope ID: B69D2B4A-4C82-420D-B12B-1B3F3E06CC6A
C-3
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
) ss
County of ______________ )
On ________________, before me, ____________________________, a notary public in and for said State, personally appeared _____________________________________, who proved to me on the bas is of satisfactory evidence to be the person(s) whose name(s) is/are subscri bed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/he r/their signature(s) on the inst rument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under P
ENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature ________________________ (Seal)
Docusign Envelope ID: B69D2B4A-4C82-420D-B12B-1B3F3E06CC6A
SCHEDULE 1
SELLER’S DISCLOSURES
1. 1999 Permit
2. BART Easement
Docusign Envelope ID: B69D2B4A-4C82-420D-B12B-1B3F3E06CC6A
1999 Permit
[see attached]
Docusign Envelope ID: B69D2B4A-4C82-420D-B12B-1B3F3E06CC6A )
'" • ''f l,~ I • 'f
SAN FRANCISCO PUBLIC UTILITIES COMMISSION
REVOCABLE PERMIT
(Permit#)
THIS REVOCABLE PERMIT (this "Permit") dated for reference purposes only as of August 5, 1998, is made by and between the CITY AND COUNTY OF SAN FRANCISCO, a municipal corporation ("City"), acting by and through its Public Utilities Commission ("PUC"), and CITY OF SAN BRUNO, a municipal corporation ("Permittee").
City and Permittee agree as follows:
1. License. City confera to Permittee 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 San Bruno, State of California, more particularly described in Exhibit A attached hereto (the "Permit Area"), for the limited purpose and subject to the terms, conditions and restrictions set forth below.
The Permit Area is shown generally on Drawing No. B-4707 attached hereto as Exhibit B. This Permit gives Permittee a license only and notwithstanding anything to the contrary herein, this Permit does not constitute a grant by City of any ownership, leasehold, easement or other property interest or estate whatsoever in the Permit Area, or any portion thereof. Nothing in this Permit shall be construed as granting or creating any franchise rights pursuant to any federal, state or local Jaws.
THE PRIVILEGE GIVEN TO PERMITTEE UNDER THIS PERMIT IS EFFECTIVE ONLY
INSOFAR AS THE RIGHTS OF CITY IN THE PERMIT AREA ARE CONCERNED, AND
PERMITTEE SHALL OBTAIN ANYFURTHERPERMISSIONNECESSARY BECAUSE OF ANY OTHER EXISTING RIGHTS AFFECTING THE PERMIT AREA. WITHOUT LIMITING THE
FOREGOING, THIS PERMIT IS BEING ISSUED SUBJECT AND SUBORDINATE TO ALL OF THE TERMS AND CONDITIONS OF THAT CERTAIN DEED DATED SEPTEMBER 29, 1944, AND RECORDED SEPTEMBER 29, 1944, IN VOLUME 1611, PAGE 1 OF OFFICIAL RECORDS OF .SAN MATEO COUNTY, PURSUANT TO WHICH CITY ACQUIRED ITS INTEREST IN THE
PERMIT AREA, A COPY OF WHICH IS ATTACHED TO THIS PERMIT AS EXHIBIT C (THE "DEED"), AND ALL OTHER EXISTING AND FUTURE DOCUMENTS AND INSTRUMENTS
OF RECORD AFFECTING THE PERMIT AREA (COLLECTIVELY, WITH THE DEED, THE "RECORDED DOCUMENTS"). PERMITTEE MUST SECURE ALL ADDITIONAL NECESSARY
APPROVALS, PERMITS AND CONSENTS, AND DELIVER ALL NECESSARY NOTICES,
BEFORE COMMENCING WORK IN THE PERMIT AREA, INCLUDING ANY APPROVALS,
PERMITS, CONSENTS OR NOTICES REQUIRED FROM OR TO THE GRANTOR UNDER THE RECORDED DOCUMENTS. PERMITTEE COVENANTS AND AGREES, FOR THE BENEFIT
OF CITY, THAT PERMITTEE SHALL FULLY COMPLY WITH THE TERMS AND
CONDITIONS OF THE RECORDED DOCUMENTS AND ANY OTHER RULES AND
REGULATIONS PROMULGATED BY CITY AS THEY APPLY TO ANY WORK TO BE
PERFORMED OR FACILITIES TO BE INSTALLED BY PERMITTEE ON THE PERMIT AREA SANBRUNO, PER 06/05/98
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PURSUANT TO THIS PERMIT, AND CITY SHALL HAVE NO RESPONSIBILITY OR LIABILITY OF ANY KIND WITH RESPECT THERETO. PERMITTEE ACKNOWLEDGES AND
AGREES THAT NEITHER CITY NOR ANY OF ITS AGENTS HAVE MADE, AND CITY
HEREBY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
CONCERNING THE PRESENT OR FUTURE SUITABILITY OF THE PERMIT AREA FOR
PERMITTEE'S INTENDED WORK OR FACILITIES, THE IMPACT OF ANY TERM OR
CONDITION OF THE RECORDED DOCUMENTS ON PERMITTEE'S RIGHTS UNDER THIS
PERMIT, OR THE ABILITY TO OBTAIN OR DELIVER, OR THE PROCEDURE FOR OBTAlNING OR DELIVERING, ANY NECESSARY APPROVALS, PERMITS, CONSENTS OR
NOTICES FROM OR TO THE GRANTOR UNDER THE RECORDED DOCUMENTS OR ANY OTHER PARTY WITH RESPECT TO ANY MATTERS CONTAINED IN THlS PERMIT.
2. Use of Permit Area.
(a) Permitted Acts. Permittee may enter and use the Permit Area for the sole purpose of roadway, landscaping and installation of underground utility facilities in strict accordance with Section 3(a) hereof, and for no other purpose whatsoever. (b) Subject to City Uses. Permittee is aware that the Permit Area constitutes a portion of City's water pipeline delivery system. Notwithstanding anything to the contrary in this Permit, any and all of Permittee's activities hereunder shall be subject and subordinate at all times to City's existing and future use of the Permit Area for municipal and other purposes. City shall in no way be liable for any damage or destruction to Permittee's property and/or improvements resulting from any pipeline break or from any pipeline repair or maintenance activities. Permittee shall, at City's request, immediately remove any property or improvements on the Permit Area to allow City access to the pipelines. In the event City deems it necessary, in City's sole discretion, City shall have the right to remove any sueh property or improvements and City shall not be responsible for restoring or returning same to its prior condition.
3. Installation of Facilities. Permittee may install certain facilities consisting of roadway, landscaping, and underground utility facilities which include electric, telephone, cable television and streetlight conduits and wires on the Permit Area only upon satisfaction of the following conditions, which are for the sole benefit of City:
(a) Approval of Plans and Specifications. Permittee shall install the permitted facilities in accordance with plans and specifications (including drawings) approved in advance and in writing by PUC and attached hereto as Exhibit D. The plans and specifications may be revised or amended only with prior written approval of PUC after PUC'S Bureau of Environmental and Regulatory Management has determined that no further environmental review is required by CEQA as a result of any such revision or amendment.
(b) Permits and Approvals. Before beginning any work in the Permit Area, Permittee shall obtain any and all permits, licenses and approvals (collectively, "approvals") of all regulatory SANBRIJNO.PER 2 08/05/98
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agencies and other third parties that are required to commence, complete and maintain the permitted work. Promptly upon receipt of such approvals, Permittee shall deliver copies of them to PUC.
Permittee recognizes and agrees that no approval by PUC for purposes of Permittee's work hereunder shall be deemed to constitute the approval of any federal, state or local regulatory authority with jurisdiction, and nothing herein shall limit Permittee's obligation to obtain all such regulatory approvals, at Permittee's sole cost.
(c) Exercise of Due Care. Permittee shall use, and shall cause its Agents (as defined below) to use, due care at all times to avoid any damage or harm to City's water pipelines or other property and to native vegetation and natural attributes of the Permit Area and to minimize slope erosion. Permittee shall not disturb the surface of the Permit Area or perform any excavation work without the prior written approval of City, which City may withhold in its sole discretion. City shall have the right to condition and/or oversee any permitted excavation work. Permittee shall mark, at its own expense, the location of the City's water transmission mains within the Permit Area and shall not use any pick, plow or other sharp tool to remove the two feet of soil around the transmission mains, provided that Permittee may use hand shovels or pneumatic shovels in compliance with all other terms and conditions of this Permit. Permittee shall immediately inform City of any aetual or potential damage to the coating of the pipeline, and any such damage shall be promptly repaired by Permittee, at its own expense, to the satisfaction of City prior to backfilling; provided, City may elect, in its sole discretion, to make any necessary repairs itself, at Permittee's sole cost, by notifying Permittee of such fact. Upon completion of the repairs, City shall send to Permittee a bill therefor which Permittee shall pay within thirty (30) days following receipt. Under no circumstances shall Permittee damage, harm or take any rare, threatened or endangered species on or about the Permit Area.
(d) Coqperation with Public Utilities Commission. Permittee and its Agents shall work closely with City personnel to minimize any potential disturbance (even if temporary) of the natural features of the Permit Area and to avoid disruption (even if temporary) of City facilities, in, under, on or about the Permit Area and City uses thereof.
(e) Heayy Equipment. Permittee shall not use any heavy construction equipment over or about City's pipelines, except as otherwise expressly allowed in Section 4(i) hereof. (f) Work Schedule. Permittee must begin installation work, if at all, within ninety (90) days after the commencement of the term of this Permit. At least five (5) days prior to the commencement of any work on the Permit Area, Permittee shall notifY Mr. Ben Ayala, Construction Inspector, at (415) 872-5908, ofthe date such work shall commence and the intended construction schedule. Notwithstanding the approval of such schedule by PUC, the Construction Inspector shall have the right to require Permittee to adjust such schedule from time to time. All work must be performed during regular working hours (Monday through Friday) between 8:00a.m. to 4:30p.m., exclusive of City holidays. Any work performed during any other time or day must be preapproved by the PUC at least forty-eight (48) hours prior to commencing such work. In connection with such approval, City shall have the right to charge Permittee additional inspection fees payable prior to SANBRUNO.PER 3 08/05/98
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PUC's approval of the request. Permittee shall complete all work no later than 180 days after the commencement of the term of this Permit, subject to unavoidable delays. For purposes hereof, "unavoidable delays" shall mean any delays by reason of acts of God, accidents, breakage, strikes, lockouts, other labor disputes, enemy action, civil commotion, protests, riots, demonstrations, federal or state governmental restrictions, or by any other reason beyond the reasonable control of Permittee.
Permittee shall have the right to apply to City for a one-time extension for a period not to exceed 90 days. City may charge a non-refundable fee of$100 to process such application for an extension.] (g) Restoration of Permit Area. Immediately following completion of any work permitted hereunder, Permittee shall remove all debris and any excess dirt and shall restore the Permit Area to its condition immediately prior to Permittee's work hereunder, to the satisfaction of City.
Permittee shall restore excavated areas with new vegetation (including irrigation and maintenance until established) and erosion control netting, all as requested by City. (b) Installation of Above-Ground Markers. Permittee shall install above-ground markers identifying the location of any underground facilities installed pursuant to this Permit. The location, type and installation of markers and identifYing information on the markers shall be subject to the prior written approval of PUC.
(i) As-Built Drawings/Reports. Promptly upon completion of the installation of the facilities, Permittee shall furnish PUC with two (2) complete copies of final as-built drawings for the facilities, which drawings shall include sufficient detail so as to allow City to precisely locate the facilities. In the event that Permittee or its agents or consultants prepares any environmental, seismic, geophysical or other written report relating to the Permit Area and/or any work performed thereon, Permittee shall furnish to City a complete copy of such report, including any schedules, exhibits and maps, promptly upon completion of the same.
(j) Responsibility for Maintenance of Facilities. Permittee shall be solely responsible for repairing and maintaining all facilities placed in or on the Permit Area pursuant hereto in good and safe condition, and City shall have no duty whatsoever for any repair or maintenance of the Permit Area or any such facilities therein. Permittee shall notifY City in writing not less than five (5) days before performing any repair or maintenance work in the Permit Area, except in the case of an emergency wherein Permittee shall notifY City telephonically and in writing as soon as reasonably possible.
(k) Revocability. Permittee acknowledges and agrees that the installation of the facilities permitted hereunder, regardless of cost, shall not in any way whatsoever limit City's right to revoke this Permit pursuant to the terms hereof or any of City's other rights hereunder. (I) Contractors. Permittee shall not accept and release its contractor for work authorized or required by this Permit before securing the PUC's written approval. (m) Cathodic and Other Protection. City may adopt from time to time such rules and SANBRUNO.PER 4 OS/OS/98
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regulations with regard to Permittee's facilities and operations hereunder as City may determine are necessary or appropriate, in City's sole discretion, to safeguard against corrosion of, or other damage to, City's pipelines and related facilities. Permittee shall immediately comply with all such rules and regulations upon receipt of a copy thereof.
(n) Type of Pipe. Permittee shall use steel, ductile iron or cast iron pipe for the entire right-of-way crossing.
(o) Distance Between Pipes. The clear distance between the bottom of Permittee's facilities and the top of City's existing and any proposed future water lines shall not be less than twelve inches (12") and Permittee's installed facilities shall be placed at a constant grade for the entire crossing over the Permit Area.
4. Restrictions on Use. Permittee agrees that, by way of example only and without limitation, the following uses of the Permit Area by Permittee, or any other person claiming by or through Permittee, are inconsistent with the limited purpose of this Permit and are strictly prohibited as provided below:
(a) Improvements. Except as otherwise expressly provided herein, Permittee shall not construct or place any temporary or permanent structures or improvements in, on, under or about the Permit Area, nor shall Permittee make any alterations or additions to any of existing structures or improvements on the Permit Area, unless Permittee first obtains PUC's prior written consent, which PUC may give or withhold in its sole and absolute discretion. For purposes hereof, asphalt, concrete and cementitious concrete driveways, sidewalks and parking areas, shacks and storage facilities, and fences shall be deemed "improvements."
(b) Trees and Other Plantings. Permittee shall not plant any trees or other vegetation in or on the Permit Area, except as otherwise expressly provided herein. (c) Dumping. Permittee shall not cause or permit the dumping or other disposal in, on, under or about the Permit Area oflandfill, refuse, Hazardous Material (as defined below) or any other materials, including but not limited to materials that are unsightly or could pose a hazard to the human health or safety, native vegetation or wildlife, or the environment. (d) Hazardous Material Permittee shall not cause, nor shall Permittee allow any of its Agents or Invitees (as such terms are defined below) to cause, any Hazardous Material (as defined below) to be brought upon, kept, used, stored, generated, released or disposed of in, on, under or about the Permit Area, or transported to, from or over the Permit Area. Permittee shall immediately notify City when Permittee learns of, or has reason to believe that, a release of Hazardous Material has oecurred in, on, under or about the Permit Area. Permittee shall further comply with all laws, statutes, ordinances, rules, regulations, policies, orders, edicts and the like (collectively, "Laws") requiring notice of such releases or threatened releases to governmental agencies, and shall take all action necessary or desirable to mitigate the release or minimize the spread of contamination. In the SANBRUNO.PER 5 08/05/96
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event that Permittee or its Agents or Invitees cause a release of Hazardous Material, Permittee shall, without cost to City and in accordance with all Laws and using the highest and best technology available, promptly return the Permit Area to the condition immediately prior to the release. In connection therewith, Permittee shall afford City a full opportunity to negotiate and participate in any discussion with governmental agencies and environmental consultants regarding any settlement agreement, cleanup or abatement agreement, consent decree or other compromise proceeding involving Hazardous Material, and any other abatement or clean-up plan, strategy and procedure. For purposes hereof, "Hazardous Material" means material that, because of its quantity, concentration or physical or chemical characteristics, is at any time now or hereafter deemed by any federal, state or local governmental authority to pose a present or potential hazard to public health, welfare or the environment. Hazardous Material includes, without limitation, 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. Sections 9601 ~-.or pursuant to Section 25316 of the California Health & Safety Code or any other federal, state, or local Law; a "hazardous waste" listed pursuant to Section 25140 of the California Health & Safety Code; any asbestos and asbestos containing materials whether or not such materials are part of the Permit Area or are naturally occurring substances in the Permit Area; and any petroleum, including, without limitation, crude oil or any fraction thereof, natural gas or natural gas liquids, provided, the foregoing shall not prohibit Permittee from traversing to, from and across the Permit Area in standard motor vehicles that do not exceed the weight limitations set forth below. The term "release" or "threatened release" when used with respect to Hazardous Material shall include any actual or imminent spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing in, on, under or about the Permit Area. (e) Nuisances. Permittee shall not conduct any activities in, on, under or about the Permit Area that constitute waste, nuisance or unreasonable annoyance (including, without limitation, 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. (t) Damage. Permittee shall not do anything in, on, under or about the Permit Area that could cause damage or interference to any pipelines or other property located in, on, under or about the Permit Area.
(g) Use of Adjoining Land. Permittee acknowledges that the privilege given under this Permit shall be limited strictly to the Permit Area. Permittee shall not traverse over or otherwise use any adjoining lands of City.
(h) Ponding; Water Courses. Permittee shall not cause any ponding on the Permit Area or any flooding on adjacent land. Permittee shall not engage in any activity that causes any change, disturbance, fill, alteration or impairment to the bed, bank or channel of any natural water course, wetland, or other body of water on, in, under or about the Permit Area, nor shall Permittee engage in any activity that could pollute or degrade any surface or subsurface waters or result in the diminution or drainage of such waters.
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(i) Heayy Equipment and Vehicles. To prevent damage to City's underground pipelines, Permittee's use of vehicles and equipment within twenty feet (20') of each side of the centerline of City's pipelines (measured on the surface) shall be subject to the following restrictions:
(i) The depth of soil cover over the tops of City's pipelines must be at least three feet (3') for steel cylinder pipe and four feet (4') for reinforced pre-stressed concrete cylinder pipe to accommodate the loading as defined below in Item (ii). If any equipment with axle loading exceeds the loads stated in Item (ii) below or if the depth of soil cover is less than stated above, Permittee shall submit to PUC for review and approval, in PUC's sole discretion, engineering calculations prepared by a licensed Professional Engineer showing that City's pipelines will not be adversely affected by Permittee's proposed activities. In the event that City's pipelines may be adversely affected, Permittee shall submit remedial measures for City's approval to ensure that no adverse effect will occur.
(ii) The effects of vehicle and equipment loads to the pipe must not exceed the effects of the "AASHO Standard H-10 Loading." H-10 loading is defined as loading caused by a two axle truck with a gross weight often tons (20,000 lbs.), axles fourteen feet (14') apart, and rear axle carrying 8-tons (16,000 lbs.). Permittee shall be responsible to provide PUC adequate evidence that its equipment and vehicles meet the foregoing requirements. (iii) Permittee shall not use vibrating compaction equipment without PUC's prior written approval, which approval may be withheld in PUC's sole discretion. (iv) If the depth ofthe soil cover over the pipeline (determined by potholing or other proof procedure) is less than the minimum stated in (i) above, unless an alternate method is approved by PUC in writing, all excavation and grading over the pipeline shall be performed manually. For any machinery equipment excavation and grading over and within twenty feet (20') on each side of the centerline of the pipeline (measured on the surface), Permittee shall submit a written proposal together with all supporting calculations and data to PUC for review and approval.
In any case, the two feet (2') of soil around the pipeline shall be removed manually or by other methods approved by PUC with due care as provided in Section 3(c).
S. Permit Feels).
(a) Permittee shall pay to City a one-time non-refundable permit fee in the amount ofTwo Thousand Five Hundred Dollans ($2,500,00) to cover City's processing, inspection and other administrative costs. Such fee is payable at such time as Permittee signs and delivers this Permit to City, Payment shall be made by good check payable to the City and County of San Francisco and delivered to City in care ofthe Director of the Bureau of Commercial Land Management of the San Francisco Public Utilities Commission at the address for notices to City specified in Section 29 hereof or such other place as City may designate in writing. Without limiting its right to revoke this Permit or any of its other rights hereunder, City may at any time, upon not less than 30 days' written notice to Permittee, charge a use fee for the privilege given hereunder if City establishes a general policy SANBRUNO.PER 7 08/05/98
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6. Term of Permit. The privilege conferred to Permittee pursuant to this Permit shall commence on the date on which this Permit is executed and delivered by City following PUC authorization and approval and the receipt of all fees and security required to be provided hereunder (the "Commencement Date"), and shall immediately expire upon oral or written notice from City revoking this Permit. City may at its sole option freely revoke this Permit at any time without cause or liability, and without any obligation to pay any consideration to Permittee.
7. Security for Performance. INTENTIONALLY OMITTED.
8. Insurance.
(a) Permittee shall procure and keep in effect at all times during the term of this Permit, at Permittee's expense, and cause its contractors and subcontractors to maintain at all times during any construction activities on the Permit Area insurance as follows: (i) General Liability Insurance with limits not less than $I ,000,000 each occurrence Combined Single Limit for Bodily Injury and Property Damage, including coverages for Contractual Liability, Personal Injury, Independent Contractors, Explosion, Collapse and Underground (XCU), Broadform Property Damage, Sudden and Accidental Pollution, Products Liability and Completed Operations; (ii) Automobile Liability Insurance with limits not less than $1,000,000 each occurrence Combined Single Limit for Bodily Injury and Property Damage, including coverages for owned, non-owned and hired automobiles, as applicable, and Sudden and Accidental pollution; and(iii) Workers' Compensation Insurance with Employer's Liability Coverage with limits of not less than $1,000,000 each accident. In lieu of the foregoing insurance, Permittee can elect to self-insure by providing City adequate evidence of its self insurance program. If Permittee elects to self-insure, Permittee shall give PUC written notice of any significant change in or the depletion of its self-insurance fund. (b) All liability policies required hereunder shall provide for the following: (i) name as additional insureds the City and County of San Francisco, its Public Utilities Commission and its officers, agents and employees; (ii) specify that such policies are primary insurance to any other insurance available to the additional insureds, with respect to any claims arising out of this Permit and that insurance applies separately to each insured against whom claim is made or suit is brought, and (iii) include a waiver of subrogation endorsement or provision wherein the insurer acknowledges acceptance of Permittee's waiver of claims against City. Such policies shall also provide for severability of interests and that an act or omission of one of the named insureds which would void or otherwise reduce coverage shall not reduce or void the coverage as to any insured, and shall afford coverage for all claims based on acts, omissions, injury or damage which occurred or arose (or the onset of which occurred or arose) in whole or in part during the policy period. Sudden and accidental pollution coverage in the liability policies required hereunder shall be limited to losses resulting from Permittee's activities (and Permittee's Agents and Invitees} under this Permit (excluding nonnegligent aggravation of existing conditions with respect to Hazardous Materials).
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(c) All policies shall be endorsed to provide thirty (30) days prior written notice of cancellation, non-renewal or reduction in coverage to City. (d) Prior to the commencement date of this Permit, Permittee shall deliver to City certificates of insurance in form and with insurers satisfactory to City, evidencing the coverages required hereunder, together with complete copies of the policies at City's request. In the event Permittee shall fail to procure such insurance, or to deliver such policies or certificates, City may procure, at its option, the same for the account of Permittee, and the cost thereof shall be paid to City within five (5) days after delivery to Permittee of bills therefor. (e) Should any of the required insurance be provided under a form of coverage that includes a general annual aggregate limit or provides that claims investigation or legal defense costs be included in such general annual aggregate limit, such general aggregate limit shall double the occurrence or claims limits specified above.
(I) Should any of the required insurance be provided under a claims made form, Permittee shall maintain such coverage continuously throughout the term of this Permit and, without lapse, for a period of three (3) years beyond the Permit expiration, to the effect that, should any occurrences during the Permit term give rise to claims made after expiration of the Permit, such claims shall be covered by such claims-made policies.
(g) Upon City's request, Permittee and City shall periodically review the limits and types of insurance carried pursuant to this Section. If the general commercial practice in the City and County of San Francisco is to carry liability insurance in an amount or coverage materially greater than the amount or coverage then being carried by Permittee for risks comparable to those associated with the Permit Area, then City in its sole discretion may require Permitteeto increase the amounts or coverage carried by Permittee hereunder to conform to such general commercial practice. (h) Permittee's compliance with the provisions of this Section shall in no way relieve or decrease Permittee's indemnification obligations under this Permit or any of Permittee's other obligations hereunder. Notwithstanding anything to the contrary in this Permit, this Permit shall terminate immediately, without notice to Permittee, upon the lapse of any required insurance coverage. Permittee shall be responsible, at its expense, for separately insuring Permittee's personal property.
9. Compliance with Laws. Permittee shall, at its expense, conduct and cause to be conducted all activities on the Permit Area allowed hereunder in a safe and reasonable manner and in compliance with all Laws of any governmental or other regulatory entity (including, without limitation, 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.
Permittee shall, at its sole expense, procure and maintain in force at all times during its use of the Permit Area any and all business and other licenses or approvals necessary to conduct the activities allowed hereunder. Permittee understands and agrees that City is entering into this Permit in its SANBRUNO.PER 9 OB/05/98
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capacity as a property owner with a proprietary interest in the Permit Area and not as a regulatory agency with police powers. Permittee further understands and agrees that no approval by City for purposes of this Permit shall be deemed to constitute approval of any federal, state, City or other local regulatory authority with jurisdiction, and nothing herein shall limit Permittee's obligation to obtain all such regulatory approvals at Permittee's sole cost or limit in any way City's exercise of its police powers.
10. Covenant to Maintain Permit Area. In connection with its use hereunder, Permittee shall at all times, at its sole cost, maintain the Permit Area in a good, clean, safe, secure, sanitary and sightly condition, so far as the Permit Area may be affected by Permittee's activities hereunder.
11. Monuments. INTENTIONALLY OMITTED.
12. Removal or Alteration of Facilities. Without limiting City's rights hereunder, Permittee shall promptly, at City's written request, alter or remove at its sole expense any and all facilities, improvements, plantings or other property installed or placed in, on, under or about the Permit Area by Permittee, as may be necessary to avoid any actual or potential interference with any of City's pipelines, power lines, facilities or other structures now or later constructed, or with the maintenance thereof or with any other operations or land uses by City. In the request, City shall have the right to specify reasonable time limits for completion of the work. If after such written notice Permittee fails to complete the requested work within the prescribed time limits, City shall have the right to perform the requested work and charge Permittee all costs and expenses incurred by City in performing the work. Such amount shall be due and payable upon City's demand. In the event of an emergency City may, at its sole option and without notice, alter, remove or protect at Permittee's sole expense, any and all facilities, improvements, plantings or other property installed or placed in, on, under or about the Permit Area by Permittee. The owner of such utility facilities shall, upon written or oral notice by City that an emergency exists, take immediate action at its sole expense to protect, remove or relocate such facilities as required by City to meet the emergency.
13. Sigm. Permittee shall not place, erect or maintain any sign, advertisement, banner or similar object in, on, or about the Permit Area without PUC's prior written consent, which PUC may withhold in its sole discretion; provided, however, Permittee may place in the Permit Area a temporary sign of less than thirty (30) days' duration that is necessary for Permittee's construction use and which does not extend below the ground surface without PUC's prior written consent.
14. Surrender. Upon the expiration of this Permit or within ten (10) days after any sooner revocation or other termination of this Permit, Permittee shall surrender the Permit Area in the same condition as received, and broom clean, free from hazards and clear of all debris. At such time, Permittee shall remove all of its property from the Permit Area and any signs and, upon City's request, other structures or improvements] permitted hereunder, and shall repair, at its cost, any damage to the Permit Area caused by such removal. Permittee's obligations under this Section shall survive any termination of this Permit.
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15. Repair of Damage. If any portion of the Permit Area or any property of City located on or about the Permit Area is damaged or threatened by any of the activities conducted by Permittee or anyone acting by or through Permittee hereunder, Permittee shall immediately, at its sole cost, notify City by facsimile of such damage or threat. City may, but shall not be obligated, to remedy such damage or threat at Permittee's sole cost, or City may elect to witness Permittee's repair work. In the event City elects not to remedy such damage or threat, Permittee shall repair any and all such damage and restore the Permit Area or property to its previous condition subject to City's inspection, review and approval. City has no responsibility or liability of any kind with respect to any utilities that may be on, in or under the Permit Area. Permittee has the sole responsibility to locate such utilities and other existing facilities and protect them from damage. Permittee shall be solely responsible for arranging and paying directly for any utilities or services necessary for its activities hereunder; provided, Permittee shall obtain City's prior written approval to the provision of such services or utilities in, on, under, or through the Permit Area.
16. City's Right to Cure Defaults by Permittee. If Permittee fails to perform any of its obligations under this Permit to restore the Permit Area, remove or alter facilities or repair damage, or if Permittee defaults in the performance of any of its other obligations under this Permit, then City may, at its sole option, remedy such failure for Permittee's account and at Permittee's expense by providing Permittee with three (3) days' prior written or oral notice of City's intention to cure such default (except that no such prior notice shall be required in the event of an emergency as determined by City). Such action by City shall not be construed as a waiver of any rights or remedies of City under this Permit, and nothing herein shall imply any duty of City to do any act that Permittee is obligated to perform. Permittee shall pay to City upon demand, all costs, damages, expenses or liabilities incurred by City, including, without limitation, reasonable attorneys'. experts' and consultants' fees, in remedying or attempting to remedy such default. Permittee's obligations under this Section shall survive the termination of this Permit.
17. No Costs to City. Permittee shall bear all costs or expenses of any kind or nature in connection with its use of the Permit Area, and shall keep the Permit Area free and clear of any liens or claims of lien arising out of or in any way connected with its use of the Permit Area.
18. Indemnity. Permittee shall indemnify, defend, reimburse and hold harmless City, its officers, agents, employees and contractors, and each of them, from and against any and all demands, claims, legal or administrative proceedings, losses, costs, penalties, fines, liens, judgments, damages and liabilities of any kind ("Claims"), arising in any manner out of (a) any injury to or death of any person or damage to or destruction of any property occurring in, on or about the Permit Area, or any part thereof, whether the person or property of Permittee, its officers, directors, members, employees, agents, consultants, contractors or subcontractors (collectively, "Agents"), its invitees, guests or business visitors (collectively, "Invitees"), or third persons, relating to any use or activity under this Permit, (b) any failure by Permittee to faithfully observe or perform any of the terms, covenants or conditions of this Permit, (c) the use of the Permit Area or any activities conducted thereon by Permittee, its Agents or Invitees, (d) any release or discharge, or threatened release or discharge, of any Hazardous Material caused or allowed by Permittee, its Agents or Invitees, on, in, under or about SANBR1JNO.PER II 08/0S/98
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the Permit Area, any improvements or into the environment, or (e) any failure by Permittee 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 the facilities to be installed pursuant to this Permit; except solely to the extent of Claims resulting directly from the gross negligence or willful misconduct of City or City's authorized representatives.
In addition to Permittee's obligation to indemnify City, Permittee specifically acknowledges and agrees that it has an immediate and independent obligation to defend the City from any claim that actually or potentially falls within this indemnity provision even if such allegation is or may be groundless, fraudulent or false, which obligation arises at the time such claim is tendered to Permittee by City and continues at all times thereafter. The foregoing indemnity shall include, without limitation, reasonable attorneys', experts' and consultants' fees and costs, investigation and remediation costs and all other reasonable costs and expenses incurred by the indemnified parties, including, without limitation, damages for decrease in the value of the Permit Area and claims for damages or decreases in the value of adjoining property. Permittee's obligations under this Section shall survive the expiration or other termination of this Permit.
19. Waiver of Claims.
(a) Neither City nor any of its commissions, departments, boards, officers, agents or employees shall be liable for any damage to the property of Permittee, 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 Permit Area or its use by Permittee. (b) Permittee acknowledges that this Permit is freely revocable by City and in view of such fact, Permittee expressly assumes the risk of making any expenditures in connection with this Permit, even if such expenditures are substantiaL Without limiting any indemnification obligations of Permittee or other waivers contained in this Permit and as a material part of the consideration for this Permit, Permittee fully RELEASES, W AlVES AND DISCHARGES forever any and all claims, demands, rights, and causes of action against, and covenants not to sue, City, its departments, commissions, officers, directors and employees, and all persons acting by, through or under each of them, under any present or future laws, statutes, or regulations, including, but not limited to, any claim for inverse condemnation or the payment of just compensation under law or equity, in the event that City exercises its right to revoke or terminate this Permit. (c) Permittee acknowledges that it will not be a displaced person at the time this Permit is terminated or revoked or expires by its own terms, and Permittee fully RELEASES, W AlVES AND DISCHARGES forever any and all claims, demands, rights, and causes of action against, and covenants not to sue, City, its departments, commissions, officers, directors and employees, and all persons acting by, through or under each of them, under any present or future laws, statutes, or , regulations, including, without limitation, any and all claims for relocation benefits or assistance from City under federal and state relocation assistance laws. (d) Permittee expressly acknowledges and agrees that the fees payable hereunder do not SANBRUNO.PER 12 08/0S/98
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take into account any potential liability of City for any consequential or incidental damages including, but not limited to, lost profits arising out of disruption to the facilities or Permittee's uses hereunder. City would not be willing to give this Permit in the absence of a waiver of liability for consequential or incidental damages due to the acts or omissions of City or its Agents, and Permittee expressly assumes the risk with respect thereto. Accordingly, without limiting any indemnification obligations of Permittee or other waivers contained in this Permit and as a material part of the consideration for this Permit, Permittee fully RELEASES, W AlVES AND DISCHARGES forever any and all claims, demands, rights, and causes of action against for consequential and incidental damages (including without limitation, lost profits), and covenants not to sue for such damages, City, its departments, commissions, officers, directors and employees, and all persons acting by, through or under each of them, arising out of this Permit or the uses authorized hereunder, including, without limitation, any interference with uses conducted by Permittee pursuant to this Permit, regardless of the cause, and whether or not due to the negligence of City or its Agents, except for the gross negligence and willful misconduct of City or its Agent. (e) As part of Permittee's agreement to accept the Permit Area in its "As Is" condition as provided below, and without limiting such agreement, Permittee on behalf of itself and its successors and assigns, waives its right to recover from, and forever releases and discharges, City and its Agents, and their respective heirs, successors, administrators, personal representatives and assigns, from any and all Claims, whether direct or indirect, known or unknown, foreseen and unforeseen, that may arise on account of or in any way be connected with the physical or environmental condition of the Permit Area and any related improvements or any law or regulation applicable thereto or the suitability of the Permit Area for Permittee's intended use. (f) In connection with the foregoing releases, Permittee acknowledges that it is familiar with Section 1542 of the California Civil Code, which reads:
A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.
Permittee acknowledges that the releases contained herein includes all known and unknown, disclosed and undisclosed, and anticipated and unanticipated claims. Permittee realizes and acknowledges that it has agreed upon this Permit in light of this realization and, being fully aware of this situation, it nevertheless intends to waive the benefit of Civil Code Section 1542, or any statute or other similar law now or later in effect. The releases contained herein shall survive any termination of this Permit.
20. As Is Condition of Permit Area; Disclaimer of Representations. Permittee accepts the Permit Area in its "AS IS" condition, without representation or warranty of any kind by City, its officers, agents or employees, and subject to all applicable laws, rules and ordinances governing the use of the Permit Area. Without limiting the foregoing, this Permit is made subject to any and all existing and future covenants, conditions, restrictions, easements, encumbrances and other title SANBRUNO • PER 13 08/05/98
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matters affecting the Permit Area, whether foreseen or unforeseen, and whether such matters are of record or would be disclosed by an accurate inspection or survey.
21. No Assignment. This Permit is personal to Permittee and shall not be assigned, conveyed or otherwise transferred by Permittee under any circumstances. Any attempt to assign, convey or otherwise transfer this Permit shall be null and void and cause the immediate termination and revocation of this Permit.
22. Cessation of Use. Permittee will not terminate its activities on the Permit Area pursuant hereto without prior written notice to City.
23. No Joint ventures or Partnership; No Authorization. This Permit does not create a partnership or joint venture between City and Permittee as to any activity conducted by Permittee on, in or relating to the Permit Area. Permittee is not a state actor with respect to any activity conducted by Permittee on, in, under or around the Permit Area. The giving of this Permit by City does not constitute authorization or approval by City of any activity conducted by Permittee on, in, around or relating to the Permit Area.
24. MacBride Principles- Northern Ireland. The City and County of San Francisco urges companies doing business in Northern Ireland to move toward resolving employment inequities and encourages them to abide by the MacBride Principles as expressed in San Francisco Administrative Code Section 12F.l, ~· The City and County of San Francisco also urges San Francisco companies to do business with corporations that abide by the MacBride Principles.
Permittee acknowledges that it has read and understands the above statement of the City and County of San Francisco concerning doing business in Northern Ireland.
25. Burma (Myanmar) Business Prohibition. Permittee is not the government of Burma (Myanmar), a person or business entity organized under the laws of Burma (Myanmar) or a "prohibited person or entity" as defined in Section l2J.2(G) of the San Francisco Administrative Code. Chapter l2J of the San Francisco Administrative Code is hereby incorporated by reference as though fully set forth herein. The failure of Permittee to comply with any of its requirements shall be deemed a material breach of this Permit. In the event Permittee fails to comply in good faith with any such requirements, Permittee shall be liable for liquidated damages for each violation in an amount equal to Permittee's net profit under this Permit, or 10% of the total amount of the Permit fee, or $1,000, whichever is greatest. Permittee acknowledges and agrees the liquidated damages assessed shall be payable to the City upon demand.
26. Non-Discrimination in City Contracts.
Covenant Not to Discriminate. In the performance of this Permit, Permittee covenants and agrees not to discriminate on the basis of the fact or perception of a person's race, color, creed, religion, national origin, ancestry, age, sex, sexual orientation, gender identity, domestic partner status, marital status, disability or Acquired Immune Deficiency Syndrome or HIV status SANBRUNO.PER 14 OS/05/98
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(AIDS/HIV status) against any employee of, any City employee working with, or applicant for employment with Permittee, in any of Permittee's operations within the United States, or against any person seeking accommodations, advantages, facilities, privileges, services, or membership in all business, social, or other establishments or organizations operated by Permittee.
27. Tropical Hardwoods and Virgin Redwoods. The City and County of San Francisco urges companies not to import, purchase, obtain or use for any purpose, any tropical hardwood, tropical hardwood product, virgin redwood or virgin redwood product.
28. Taxes. Assessments. Licenses. Permit Fees and Liens. (a) Permittee recognizes and understands that this Permit may create a possessory interest subject to property taxation and that Permittee may be subject to the payment of property taxes levied on such interest. Permittee further recognizes and understands that any transfer or assignment permitted under this Permit and any exercise of any option to renew or extend this Permit 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) Permittee agrees to pay taxes of any kind, including, but not limited to, possessory interest taxes, that may be lawfully assessed on the interest hereby created and to pay all other taxes, excises, licenses, permit charges and assessments based on Permittee's usage of the Permit Area that may be imposed upon Permittee by law, all of which shall be paid when the same become due and payable and before delinquency.
(c) Permittee agrees not to allow or suffer a lien for any such taxes or charges to be imposed upon the Permit Area or upon any equipment or property located thereon without promptly discharging the same, provided that Permittee, if so desiring, may have reasonable opportunity to contest the validity of the same by paying under protest or posting adequate (in City's sole discretion) security during any such contest.
29. Notices. Except as otherwise expressly provided herein, any notices given under this Permit shall be effective only if in writing and given by delivering the notice in person, by sending it first class mail or certified mail with a return receipt requested, or nationally-recognized overnight courier that guarantees next day delivery and provides a receipt therefor, with postage prepaid, addressed as follows (or such alternative address as may be provided in writing):
City or PUC:
SANBRUNO.PER
Bureau of Commercial Land Management
Public Utilities Commission
1155 Market St., 5th Fir.
San Francisco, CA 94103
Attn: Director
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Permittee: City of San Bruno
Department of Public Works
567 El Camino Real
San Bruno, CA 94066-4299
Attn: Abbas Masjedi
Notices herein shall be deemed given two (2) days after the date when they shall have been mailed if sent by first class, certified or overnight courier, or upon the date personal delivery is made.
30. No Tobacco Advertising. Permittee acknowledges and agrees that no advertising of cigarettes or tobacco products is allowed on any real property owned by or under the control of the City, including the property which is the subject of this Permit. This prohibition includes the placement of the name of a company producing, selling or distributing cigarettes or tobacco products or the name of any cigarette or tobacco product in any promotion of any event or product.
This prohibition does not apply to any advertisement sponsored by a state, local or nonprofit entity designed to communicate the health hazards of cigarettes and tobacco products or to encourage people not to smoke or to stop smoking.
31. Pesticide Prohibition. Permittee shall comply with the provisions of Section 39.9 of Chapter 39 of the San Francisco Administrative Code (the "Pesticide Ordinance") which (i) prohibit the use of certain pesticides on City property, and (ii) require the posting of certain notices and the maintenance of certain records regarding pesticide usage, and (iii) require Permittee to submit to the PUC an integrated pest management (IPM") plan that (a) lists, to the extent reasonably possible, the types and estimated quantities of pesticides that Permittee may need to apply to the Permit Area during the term of this Permit, (b) describes the steps Permittee will take to meet the City's !PM Policy described in Section 39.1 of the Pesticide Ordinance, and (c) identifies, by name, title, address and telephone number, an individual to act as the Permittee's primary !PM contact person with the City. In addition, Permittee shall comply with the requirements of Sections 39.4(a) and 39.4(b) of the Pesticide Ordinance as of January I, 1999 and January I, 2000, respectively.
32. Con Diet of Interest. Permittee sates that it is familiar with the provisions of Section
15.1 03 and C8.1 05 of the San Francisco Charter and certifies that is knows of no facts which would constitute a violation of such provisions. Permittee further certifies that it has made a complete disclosure to the City of all facts bearing on any possible interests, direct or indirect, which Permittee believes any officer or employee of the City presently has or will have in this Permit or in the performance thereof.
33. General Provisions. (a) This Permit may be amended or modified only by a writing signed by City and Permittee. (b) No waiver by any party of any of the provisions of this Permit shall be effective unless in writing and signed by an officer or other authorized representative, and only to the extent expressly provided in such written waiver. No wavier shall be deemed a subsequent or continuing waiver of the same, or any other, provision of this Permit. (c) Except as SANBRUNO.PER 16 08/05/98
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expressly provided to the contrary, all approvals, consents and determinations to be made by City hereunder may be made in the sole and absolute discretion of City. (d) This instrument (including the exhibit(s) hereto) contains the entire agreement between the parties and all prior written or oral negotiations, discussions, understandings and agreements are merged herein. (e) The section and other headings of this Permit are for convenience of reference only and shall be disregarded in the interpretation of this Permit. (f) Time is of the essence in all matters relating to this Permit. (g) This Permit shall be governed by California Jaw and City's Charter. (h) If either party commences an action against the other or a dispute arises under this Permit, the prevailing party shall be entitled to recover from the other reasonable attorneys' fees and costs. For purposes hereof and for purposes of the indemnifications set forth herein, reasonable attorneys' fees of City shall be based on the fees regularly charged by private attorneys in San Francisco with comparable experience notwithstanding the City's use of its own attorneys. (i) If Permittee consists of more than one person then the obligations of each person shall be joint and several. (j) Permittee may not record this Permit or any memorandum hereof (k) Subject to the prohibition against assigrunents or other transfers by Permittee hereunder, this Permit shall be binding upon and inure to the benefit of the parties and their respective heirs, representatives, successors and assigns. (I) Any sale or conveyance of the property burdened by this Permit by City shall automatically revoke this Permit. (m) Notwithstanding anything to the contrary contained in this Permit, Permittee acknowledges and agrees that no officer or employee of City has authority to commit City to this Permit unless and until a resolution of City's PUC shall have been duly adopted approving this Permit and authorizing the transaction contemplated hereby. Therefore, any obligations or liabilities of City hereunder are contingent upon enactment of such an resolution, and this Permit shall be null and void if City's PUC does not approve this Permit, in its sole discretion.
34. Disclosure. Permittee understands and agrees that under the City's Sunshine Ordinance (S.F. Administrative Code Chapter 67) and the State Public Records Law (Gov't Code section 6250 et seq.), apply to this Permit and any and all records, information, and materials submitted to the City in connection with this Permit. Accordingly, any and all such records, information and materials may be subject to public disclosure in accordance with the City's Sunshine Ordinance and the State Public Records Law. Permittee hereby authorizes the City to disclose any records, information and materials submitted to the City in connection with this Permit.
SANBRUNO, PER 17 08/0S/98
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PERMITTEE REPRESENTS AND WARRANTS TO CITY THAT IT HAS READ AND
UNDERSTANDS THE CONTENTS OF THIS PERMIT, 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.
APPROVED AS TO FORM:
LOUISE H. RENNE
City Attorney
Authorized by
Public Utilities Commission
CITY:
CITY AND COUNTY OF SAN FRANCISCO,
a municipal corporation
General Manager
Public Utilities Commission
Date: _--;----!....LClt..-~\..1..\ 5J....f'"J-----
APPROVED AS TO FORM:
~~~~-J<
l:::::?'Crrv ATTOR~EY
Resolution No. q 8' -0 ;J./7'
Adopted ~.,20: /1'7~
Attest ~~ a. !J&j~-
Secretary ~
Public Utilities Commission
18 Docusign Envelope ID: B69D2B4A-4C82-420D-B12B-1B3F3E06CC6A SANBRUNO.PER
EXHIBIT A
DESCRIPTION OF PERMIT AREA
All that certain real property located in San Mateo County, California, described as follows:
Parcel10 and a portion of Parcels 9, 11 and 12 of the
former Muni Railway right of way, according to SFPUC
records and as shown on Drawing No. B-4707 attached
hereto as Exhibit B and made a part hereof.
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. •
SANBRUNO . PER
EXHIBITB
DRAWING NO. B-4707
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IJ CITY AN·~ ... ~OUNTY. OF SAN FRANCISCO '
\w'" 1-----.:...........;;;~· ;_;;~=U~B_L_IC-:-U_T'!'-,IL_I_T_JE_s_c_o_M_M_I_S_s_Jo_N~· ·~~· ··-···-· -----1 REVOCABLE PE~ITTO CITY OF SAN BRUNO FOR ROADWAY,.
LANDSCAPING AND INSTALLATION OF UNDERGROUND UTILITIES . "' . .. . .. • . · ·sANMATEOCOUNTY
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SANBRUNO.PER
EXHIBITC
DEED
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Docusign Envelope ID: B69D2B4A-4C82-420D-B12B-1B3F3E06CC6A 48 CLERK's C&!!.Til'IcATE.
State of California,
City and County of San Franeisco.-ss.
I, DAVID .A. BAB.RY, Clerk of the Board of Supervisors, of the City and County of San Francisco, do hereby certify that the annexed Resolution No. 4218 (Series l!J39) is a full, true and correct copy of the original thereof on file in this office.
IN WIT"'ESS WHEREoF, I have hereunto set my hand, and
affixed· the official seal of the City and County this 28 day of Sept. 1944.
(Seal) DAVID A. BAI!.I!.Y,
Clerk of .the Board of Supervis~rs,
City and County of San Fr:ancisco.
RECOI!.DING p ABTICUI.Al!S.
Recorded in the office of the County Recorder of the
City and County of San Francisco at 9 A.M., September
29, 1944, in Liber 4150 of Official Records at pa:ge I.
Recorded in the office of the County Recorder of the
County of San Mateo at 9 A.M.; September 29, 1944, in
Volume 1161 of Official Records at page 1.
!·'
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' ' '
,,
,.
Parce19.
Beginning at the point of intersection of the westerly
line of the right of way of the Southern Pacific Ra.Uroad · , Company with the northerly line of San Bruno Lane;
thence along the westerly line of the right of way of the Southern Pacific Railroad Company north 24"' 38" west
788.8 feet; thence south oo•· 22' west 5 feet; thence along the westerly line of the right of way of the Southern
Pacific Railroad Company north 24!•' 38' west 614.9 feet to the southerly line of Ta.nforan Park; thence south 64." 01' west 45 feet; thence south 24'" 38' east 1403.7 feet to the northerly line of San Bri:mo Lane; thence north 64." 01' ea.st 50 feet along the northerly line of San Bruno Lane to the westerly line of the right of way of the Southern Pacific Railroad Company and the point of beginning.
Containing 1.54 acres, more or less.
Parcelll.
In the Buri Buri Rancho, beginning at the point of inter section of the southwesterly line of the right of way of the Southern Pacific Railroad Company with the easterly line of the San Bruno . Road; thence along said right of way south 25• 10' east 800 feet; thence at a right angle south 641• 50' west 25 feet; thence at a right angle south · 25° 10' east 1126.50 feet to the point of intersection of said course with the northerly line of the 110 acre tract now or formerly belonging to D. 0. 'Mills,; thence along said northerly line south 83" 30' west 52.78 feet to a stake; thence north 25"' 10' west 1732.72 feet to the easterly line of the San Bruno Road; thence along said road north 1•
10' west 184.38 feet to the point of beginning.
Contaia.ing 2.508 aeres.
Docusign Envelope ID: B69D2B4A-4C82-420D-B12B-1B3F3E06CC6A .; ·'
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EXHIBITD
APPROVED PLANS AND SPECIFICATIONS
SANBRUNO.PER 08/05/98
Docusign Envelope ID: B69D2B4A-4C82-420D-B12B-1B3F3E06CC6A • •
PUBLIC UTILITIES COMMISSION
City and County of San Francisco
RESOLUTION NO. __ 9_8_•_0_2_1_4_
•
WHEREAS, The City and County of San Francisco owns certain real property under the jurisdiction of the San Francisco Public Utilities Commission in San Mateo County; and WHEREAS, The City of San Bruno has requested to enter into an agreement for roadway, landscaping, and installation of underground utility facilities which include placement of electrical conduits, CATV conduits, and telephone conduits within the Permit Area; and WHEREAS, BERM has determined, and completed a certification, that the project described by the proposed agreement is categorically exempt from the requirements of the California Environmental Quality Act; and
WHEREAS, This project is a Rule 20A and Rule 32A.1, Overhead to Underground Conversion Project; now, therefore, be it
RESOLVED, That this Commission hereby approves the terms and conditions and authorizes the execution of that certain Permit to the City of San Bruno, as Permittee, for the purpose of roadway, landscaping, and installation of underground utility facilities which will include placement of electrical conduits, telephone conduits and CATV conduits within the Permit Area located in San Bruno, San Mateo County, as set forth in the Permit of certain real property under the jurisdiction of the Public Utilities Commission, as shown on Exhibit B of the Permit, commencing upon authorization and approval of said permit by Commission and expiring upon oral or written notice .from City revoking this Permit; and be it FURTHER RESOLVED, That all actions authorized by this resolution and heretofore taken by any City official in connection with such Agreement are hereby ratified, approved and confirmed by this Commission; and be
FURTHER RESOLVED, That upon approval by this Commission, the General Manager of Public Utilities is hereby authorized and directed to execute said Permit.
I hereby certify that the foregoing resolution was adopted by the Public Utilities Commission at its meeting of AUG 2 5 1998
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BART EASEMENTS
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Huntington Avenue, San Bruno, CA
SFPUC Old MUNI ROW Parcel No. 9
Approximate
Boundary of
Parcel No. 9
6th Street
7th Street