1 REIMBURSEMENT AGREEMENT EMERYVILLE CENTER OF INNOVATION (INTERCONNECT PROJECT)
THIS REIMBURSEMENT AGREEMENT is entered into this ___ day of _________, 2024, by and between the City of Emeryville, a municipal corporation (“City”) and BRE-BMR 4563 HORTON, LP, a Delaware limited partnership, and BRE-BMR EMERYVILLE CENTER OF INNOVATION HOLDCO LP, a Delaware limited partnership (together “Parking Garage 13/14 Owner”). Parking Garage 13/14 Owner is hereinafter referred to as “Developer”. City and Developer are sometimes individually referred to herein as the “Party” and collectively as the “Parties.”
RECITALS
WHEREAS, Developer is the owner of certain real property situated at 4563 Horton Street in the City of Emeryville, California and identified as APN 049-1544-001-04. (the “Property”);
WHEREAS, on August 15, 1995, the City Council approved Ordinance No. 95-006 adopting the Chiron Planned Unit Development/ Preliminary Development Plan Planned Unit Development" or the "PUD") for Chiron' s large life sciences campus. The PUD encompasses most of the area bounded by Hollis Street, 45th Street, Stanford Avenue and the railroad. The PUD called for construction of 14 new buildings, including 7 laboratory buildings, 3 office towers, structured parking, and support facilities over a 30-year period.
City also approved a Development Agreement by and between the City of Emeryville and Chiron Corporation dated September 14, 1995 and approved by Ordinance No. 95-007 ("Development Agreement" or "DA"). The DA was entered into to, among other things, foster orderly growth and quality development in the Project area, provide public services, improve public safety in the area, and address public infrastructure needs; WHEREAS, on February 25, 2021, the Planning Commission for the City adopted Resolution No. FDP 19-002, BMR Emeryville Center for Innovation Final Development Permit subject to certain Conditions of Approval (“FDP”). The FDP approved the demolition of two existing buildings and surface parking and construction of four new multitenant research and development buildings and supporting parking garage as part of implementation of the PUD;
WHEREAS, the DA, PUD, and FDP, including the Conditions of Approval, as they may from time to time be amended, are incorporated herein by reference and are collectively referred to herein as the "Project Approvals;"
WHEREAS, the project approvals require Developer to construct a High Intensity Activated Crosswalk (HAWK) signalized crosswalk between the two vehicular exits of the Building B13/14 garage;
WHEREAS, in order to provide improved safety for bicycle and pedestrian traffic crossing the northern garage exit and entrance Developer and City desire to construct a full traffic signal in lieu of the HAWK signal and City further desires that this traffic signal be DocuSign Envelope ID: 5C1B3CC6-C10B-47B7-AD65-EA15AE9D804C 2 interconnected to the traffic signal at the intersection of 53rd and Horton Street which Developer is also required to construct;
WHEREAS, the Parties desire to memorialize and enter into an agreement to set forth City’s obligation to reimburse Developer for the cost of interconnecting the two signals; NOW, THEREFORE, it is agreed by and between the Parties as follows:
1. Services. To the satisfaction of the Public Works Director, Developer shall construct all infrastructure necessary to interconnect the garage entrance traffic signal and the traffic signal (“Services”) at intersection of 53rd Street and Horton Street with fiberoptic cabling, conduit and equipment in conformance with the approved plans and City standards (“Interconnect Project”).
2. Reimbursement. City shall reimburse Developer for the actual cost of Services provided on the Interconnect Project, with no additional markup, pursuant to Section 1 of this Agreement and shall provide detailed documentation of all expenses incurred. In no event shall reimbursement by City to Developer under this Agreement exceed forty-seven thousand, five hundred dollars ($47,500).
3. Time of Performance; Term; Delays in Performance. Developer shall commence and perform the Services in a prompt and timely manner as necessary to meet the time of completion requirements of the Project Approvals for all Public Improvements.
This Agreement shall terminate either upon completion of the Interconnect Project or December 1, 2024, whichever occurs first, unless otherwise extended by a written amendment signed by both Parties or otherwise earlier terminated in writing by City with ten (10) days advance notice. In the event of such earlier termination, City shall reimburse Developer for all non-cancellable obligations and unpaid costs of Services provided on the Interconnect Project accrued as of the effective date of termination up to the not-to-exceed reimbursement amount.
4. Acceptance of Work; Inspection; Warranty. By entering into this Agreement, Developer understands and agrees that all right, title, ownership, and interest in any work performed under this Agreement are granted, conveyed, transferred, assigned, and delivered to City, its successors and assigns for the benefit of City. If the Interconnect Project is properly completed by Developer and approved by City, and if it complies with all applicable federal, state and local laws, ordinances, regulations, codes, standards, and other requirements, City shall be authorized to accept the Interconnect Project. City may, in its sole and absolute discretion, accept fully completed portions of the Interconnect Project prior to such time as the entire Interconnect Project is complete, which shall not release or modify Developer’s obligation to complete the remainder of the Interconnect Project. Developer hereby warrants and guarantees the Interconnect Project against any defective work or labor done, or defective materials furnished in the performance of this Agreement, for a period of one (1) year following completion of the Interconnect Project and acceptance by City (“Warranty”). During the Warranty, Developer shall repair, replace, or reconstruct any defective or otherwise non-compliant portion of the Interconnect Project, in accordance with DocuSign Envelope ID: 5C1B3CC6-C10B-47B7-AD65-EA15AE9D804C 3 the current ordinances, resolutions, regulations, codes, standards, or other requirements of City, and to the approval of City. All repairs, replacements, or reconstruction during the Warranty shall be at the sole cost, expense, and liability of Developer.
5. Insurance. Prior to entry upon City property for the purpose of performing Services for the Interconnect Project, Developer shall obtain and maintain, or cause to be maintained, in full force at Developer’s own expense, insurance as described below against claims which may arise out of or result from the performance of this Agreement and use of City Property by Developer and its contractors and subcontractors of any tier, or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable. All policies shall be written on an occurrence basis. All insurance shall be written by companies that are authorized to write business in the State of California and have, at all times, a Best’s rating of “A- X” (A minus X) or better by AM Best & Company, and with coverage and policy limits as follows (unless otherwise specified herein):
a. Commercial General Liability insurance written on Insurance Services Office ("ISO") Commercial General Liability Coverage "occurrence" form CG 00 01 or another Commercial General Liability "occurrence" form providing equivalent coverage and including Broad Form Comprehensive General Liability coverage, blanket contractual liability coverage, Independent Contractors coverage, coverage for bodily injury (including death), property damage (including loss of use thereof) and products and completed operations with limits of not less than $2,000,000 per occurrence. Limits may be provided in a “layered” program utilizing primary, umbrella or excess liability policies and shall be maintained for at least 1 year following termination of this Agreement.
b. Comprehensive auto liability for all owned, hired and non-owned vehicles brought onto City premises with combined single limits of not less than $2,000,000 per occurrence.
c. Worker’s Compensation insurance as required by the State of California.
d. Employer’s liability insurance on all employees, for occupational accidents or disease, with limits of not less than $1,000,000 per occurrence e. Equipment and Personal Property insurance adequate to cover the value of all tools and equipment, including rentals, used in performing the Work. f. In each policy of insurance described above, Developer shall name or cause City and City Parties (as defined in Section 8) to be named, as an Additional Insured under the policies required in subsections 5(a), (b) and (d) above. All policies shall provide for (i) at least thirty (30) days written notice to City prior to cancellation, and (ii) at least ten (10) days written notice to City for cancellation due to non-payment of applicable premiums.
All policies of insurance shall contain full Waivers of Subrogation in favor of City.
Developer or its contractors’ insurance coverage shall be primary insurance with respect to any other insurance or self-insurance programs maintained by City and such other insurance DocuSign Envelope ID: 5C1B3CC6-C10B-47B7-AD65-EA15AE9D804C 4 or self-insurance programs shall be excess and non-contributory. Prior to entry upon City property for the purpose of performing Services for the Interconnect Project , Developer shall deliver to City a certificate of insurance evidencing the coverage provided by each policy and provide replacement certificates fifteen (15) days prior to the expiration of any required coverage. City shall fully cooperate with Developer in connection with any claim against City that is in whole or in part caused by Developer, its contractor or any of its subcontractors.
6. Labor Code Requirements. Developer shall require all contractors and subcontractors employed on the Project to comply with the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq. (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on certain "public works" and "maintenance" projects, and to otherwise comply with applicable provisions of the Labor Code, the Government Code and the Public Contract Code relating to public works projects of cities/counties and as required by the procedures and standards of City with respect to the construction of its public works projects or as otherwise directed by City. Such Prevailing Wage Laws include, without limitation, prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815), contractor registration (Labor Code Sections 1725.5 and 1771.1) and debarment of contractors and subcontractors (Labor Code Sections 1777.1).
7. Hazardous Materials. In performing Services for the Interconnect Project, Developer shall comply with the requirements of federal, state, and local jurisdictions regarding hazardous or toxic substances.
8. Indemnification and Hold Harmless. Developer shall indemnify, defend (with counsel reasonably acceptable to City) and hold harmless City and its respective officers, representatives, agents and employees (the “City Parties”) from and against any and all third party suits or actions at law or in equity, claims, liabilities, obligations, losses, damages, costs and expenses (including reasonable attorneys’ fees), including, but not limited to, bodily injury, sickness, disease or death of any persons or damage to real or personal property, tangible or intangible (collectively “Claims”) arising directly from: (i) the performance or failure to perform the provisions of this Agreement; (ii) use of City property in performing Services for the Interconnect Project; (iii) acts, omissions, negligence or willful misconduct of Developer or its contractors, subcontractors, agents or employees under this Agreement; and (iv) the existence, release, presence, or disposal of any hazardous materials by Developer in violation of any environmental law or any release of hazardous materials to the extent caused by Developer in performing Services for the Interconnect Project. Developer’s indemnity obligations under this Section 8 shall not extend to Claims to the extent occasioned by the active negligence, sole negligence, or willful misconduct of City. Developer’s indemnity obligations shall apply regardless of whether any insurance policies, or self-insurance maintained by City has been determined to be applicable to such Claims, and regardless of whether or not City has prepared, supplied or approved of any specifications, drawings or plans for the Interconnect Project. This indemnification provision shall survive expiration or termination of this Agreement.
DocuSign Envelope ID: 5C1B3CC6-C10B-47B7-AD65-EA15AE9D804C 5 9. Laws, Venue, and Attorneys’ Fees. This Agreement shall be interpreted in accordance with the laws of the State of California. In the event of any controversy, claim or dispute between the Parties hereto arising out of this Agreement or the breach thereof, the prevailing Party shall be entitled to recover from the losing Party reasonable expenses, attorneys' fees, and costs. Venue for any such action shall be in a court of competent jurisdiction in Alameda County, California.
10. Successors in Interest. The terms and conditions of this Agreement are binding upon, and for the benefit of, the successors in interest of City and Developer.
11. Acknowledgements. Each of the Parties hereto acknowledges that it has read this Agreement and understands all of its terms, and this Agreement is executed voluntarily and with full knowledge of its significance. Therefore, this Agreement shall not be construed against any Party because that Party's representative drafted the Agreement or any portion of it.
12. Notices. Any notice required or permitted under this Agreement shall be in writing and may be personally served on the other Party by the Party giving notice or may be served by nationally recognized courier service (such as FedEx) or sent by registered or certified mail, return receipt requested, to the following addresses.
City:
City of Emeryville
1333 Park Avenue
Emeryville, CA 94608
Attn: City Manager
With a copy to:
City of Emeryville
1333 Park Avenue
Emeryville, CA 94608
Attn: City Attorney
With a copy to:
City of Emeryville
1333 Park Avenue
Emeryville, CA 94608
Attn: Public Works Director
Developer:
BRE-BMR 4563 & 5317 HORTON, LP
BRE-BMR Emeryville Center of Innovation Holdco LP
4570 Executive Drive, Suite 400
San Diego, CA 92121
DocuSign Envelope ID: 5C1B3CC6-C10B-47B7-AD65-EA15AE9D804C 6 Attn: Legal Department
With a copy to:
BRE-BMR 4563 HORTON, LP
BRE-BMR Emeryville Center of Innovation Holdco LP
4570 Executive Drive, Suite 400
San Diego, CA 92121
Attn: Senior Vice President, Development
With a copy to:
Cecily Barclay
Perkins Coie LLP
505 Howard Street, Suite 1000
San Francisco, CA 94105
13. Entire Agreement. This Agreement represents the entire understanding of City and Developer as to the matters contained herein, and supersedes and cancels any prior or contemporaneous oral or written understanding, promises or representations with respect to the matters covered herein. Each Party acknowledges that no representations, inducements, promises or agreements have been made by any person which are not incorporated herein, and that any other agreements shall be void. This Agreement may not be modified or altered except in writing signed by both Parties hereto. This is an integrated agreement.
[SIGNATURES START ON THE NEXT PAGE.]
DocuSign Envelope ID: 5C1B3CC6-C10B-47B7-AD65-EA15AE9D804C 7 IN WITNESS WHEREOF, the Parties hereto have executed this Reimbursement Agreement between City and Developer as of the date first written above.
CITY:
CITY OF EMERYVILLE
By:
Name: Paul Buddenhagen
Its: City Manager
APPROVED AS TO FORM:
John Kennedy, City Attorney
DEVELOPER:
BRE-BMR 4563 HORTON, LP
a Delaware limited partnership
By:
Dawn Saunders, Vice President Legal
BRE-BMR EMERYVILLE CENTER OF
INNOVATION HOLDCO, LP,
a Delaware limited partnership
By:
Dawn Saunders, Vice President Legal
DocuSign Envelope ID: 5C1B3CC6-C10B-47B7-AD65-EA15AE9D804C