Attachment C
295
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Appendix B
Documentation of Water Supply Agreements (excluding attachments)
296
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Appendix C
SFPUC Memorandum Re: Regional Water System Supply Reliability and UWMP 2020 297
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Exhibit E – Page 1
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EXHIBIT E
PUBLIC IMPROVEMENT AGREEMENT
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NO FEE DOCUMENT
Government Code §6103
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of San Carlos
600 Elm Street
San Carlos, CA 94070
Attention: City Clerk
The Above Space For Recorder’s Use
Only
O.K. to accept: ___________ Project
Name: _______________________
Date: __________________ Project
Address:
_______________________
_______________________
APN: _______________________
Project No.: _______________________
PUBLIC IMPROVEMENT AGREEMENT
This Public Improvement Agreement (“Agreement”) is entered into this __ day of _____________, 20__ by and between the City of San Carlos, a California municipal corporation (“City”) and ____________________, a ___________, (“Principal”). City and Principal may be individual or collectively referred to as a “party” or the “parties” to this Agreement.
RECITALS
A. Principal owns the real property located at 642 Quarry Road, in the City of San Carlos, California, which is more particularly described in Exhibit “A” to this Agreement (“Property”).
B. Principal has applied for and obtained certain development approvals from the City to develop the Property (the “Project”). The development approvals and City ordinances require Principal to construct certain public improvements and dedicate those public improvements to the City after construction is complete.
C. This Agreement memorializes the understanding between the parties regarding the terms and conditions under which Principal will construct and City will accept the required public improvements.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises and covenants made by the parties and contained here and other consideration, the value and adequacy of which are hereby acknowledged, the parties agree as follows:
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1. Construction of Improvements. The Principal agrees to construct and install on the Property, at the Principal’s own cost and expense, the public improvements shown on the improvement plans submitted by Principal and approved by the City Engineer or his or her designee (hereafter the “City Engineer”) on __________, 20__ , which are on file in the office of the City Engineer ( “Required Improvements”). Prior to commencing any work, Principal shall, at its sole cost and expense, obtain all necessary permits and approvals and give all necessary and incidental notices required for the lawful construction of the Required Improvements and performance of Principal’s obligations under this Agreement. Principal shall have entered into all agreements required by the respective utility companies and agreed to make all improvements required by each of the said utility companies in connection with the Required Improvements. The Required Improvements shall be constructed in accordance with all approved maps, plans, specifications, standard drawings, and special amendments thereto on file with City, as well as all applicable federal, state, and local laws, ordinances, regulations, codes, standards, and other requirements applicable at the time work is actually commenced. Principal shall complete the construction of the Required Improvements prior to issuance of a Temporary Certificate of Occupancy (or Certificate of Occupancy if no Temporary Certificate of Occupancy issues) for the first building in the Project.
a. Standard of Performance. Principal and its contractors, if any, shall perform all work required to construct the Required Improvements under this Agreement in a skillful and workmanlike manner, and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Principal represents and maintains that it or its contractors shall be skilled in the professional calling necessary to perform the work. Principal warrants that all of its employees and contractors shall have sufficient skill and experience to perform the work assigned to them, and that they shall have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the work, and that such licenses, permits, qualifications and approvals shall be maintained throughout the term of this Agreement.
b. Alterations to Improvements. All work shall be done and improvements made and completed as shown on approved plans and specifications, and any subsequent alterations thereto. If during the course of construction and installation of the Required Improvements it is determined that the public interest requires alterations in the Required Improvements, Principal shall undertake such design and construction changes as may be reasonably required by City. Any and all alterations in the plans and specifications and the Required Improvements to be completed may be accomplished without giving prior notice thereof to Principal’s surety for this Agreement.
c. Fees and Charges. Principal shall pay when due all persons furnishing labor or materials in connection with this Agreement. Principal shall, at its sole cost and expense, pay all fees, charges, and taxes arising out of construction of the Required Improvements, including, but not limited to, all plan check, design review, engineering, inspections, and other service fees, and any connection fees established by City ordinance, resolution, regulation, or policy, or as established by City or as required by other governmental agencies having jurisdiction over the Required Improvements. Inspection fees shall include inspections which are required to be repeated as a result of Principal’s failure to be ready for an inspection at the time as requested or
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as a result of the failure to pass prescribed tests or specifications due to improper methods or materials of construction or quality of the workmanship and where a second or subsequent inspection is thereby required (“re-inspections”).
2. Completion of Improvements. The Required Improvements shall be complete prior to issuance of a Temporary Certificate of Occupancy (or Certificate of Occupancy if no Temporary Certificate of Occupancy issues) for the first building in the Project. Upon satisfactory completion of all Required Improvements as determined by the City Engineer, Principal shall offer to dedicate the Required Improvements to the City, and City agrees to accept that offer of dedication in accordance with its policies and procedures and the terms of this Agreement.
3. Title to Required Improvements. The City shall not accept the Required Improvements unless they are constructed in conformity with the approved plans and specifications, approved modifications, if any, the approved final or parcel map, and City Improvement Standards and Specifications, to the satisfaction of the City Engineer. Until such time as the Required Improvements are accepted by the City, Principal shall retain title and shall be responsible for, and bear the risk of loss to, any of the improvements constructed or installed.
Title to the Required Improvements shall vest absolutely in the City upon completion and acceptance in writing of such Required Improvements by City. The City shall not accept the Required Improvements unless title to the Required Improvements is entirely free from lien. Prior to acceptance, Principal shall supply the City with appropriate lien releases, at no cost to and in a form acceptable to the City.
a. Principal’s Notice of Completion. Upon the acceptance of the Required Improvements by City, Principal shall file with the Recorder’s Office of the County of San Mateo a notice of completion for the accepted Required Improvements in accordance with Article 2 of Chapter 4 of Title 2 of Part 6 of Division 4 of the Civil Code, at which time the accepted Required Improvements shall become the sole and exclusive property of City without payment therefor. b. City Acceptance of Public Improvements. Issuance by City of occupancy permits for any buildings or structures located on the Property shall not be construed in any manner to constitute City’s acceptance or approval of any Required Improvements. c. Principal’s Obligation to Provide As-Built or Record Drawings.
Notwithstanding the foregoing, City may not accept any Required Improvements unless and until Principal provides one (1) set of “as-built” or record drawings or plans to the City Engineer for all such Required Improvements. The drawings shall be certified and shall reflect the condition of the Required Improvements as constructed, with all changes incorporated therein.
4. Inspection. Principal shall at all times maintain proper facilities and safe access for inspection of the Required Improvements. City shall be allowed to inspect the Required Improvements and all materials to be used therein at any time. Upon completion of the work, the Principal may request a final inspection by the City Engineer or his designee. If the City Engineer or the designated representative determines that the work has been completed in accordance with this Agreement, then the City Engineer shall certify the completion of the Required Improvements to the City. No improvements shall be finally accepted unless all aspects of the work have been
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inspected and determined to have been completed in accordance with the Improvement Plans and City standards. Principal shall bear all costs of plan check, inspection and certification.
5. Maintenance of Improvements. City shall not be responsible or liable for the maintenance or care of the Required Improvements until City formally approves and accepts them in accordance with its policies and procedures. City shall exercise no control over the Required Improvements until approved and accepted. Any use by any person of the Required Improvements, or any portion thereof, shall be at the sole and exclusive risk of the Principal at all times prior to City’s acceptance of the Required Improvements. Principal shall maintain all the Required Improvements in a state of good repair until they are completed by Principal and approved and accepted by City, and until the security for the performance of this Agreement is released. Maintenance shall include, but shall not be limited to, repair of pavement, curbs, gutters, sidewalks, signals, parkways, water mains, and sewers; maintaining all landscaping in a vigorous and thriving condition reasonably acceptable to City; removal of debris from sewers and storm drains; and sweeping, repairing, and maintaining in good and safe condition all streets and street improvements. It shall be Principal’s responsibility to initiate all maintenance work, but if it shall fail to do so, it shall promptly perform such maintenance work when notified to do so by City. If Principal fails to properly prosecute its maintenance obligation under this section, City may do all work necessary for such maintenance and the cost thereof shall be the responsibility of Principal and its surety under this Agreement. City shall not be responsible or liable for any damages or injury of any nature in any way related to or caused by the Required Improvements or their condition prior to acceptance. Until final acceptance of the Required Improvements, Principal shall give good and adequate warning to the public of each and every dangerous condition existing on the Property, and will take reasonable actions to protect the public from such dangerous conditions.
6. Injury to Public Improvements, Public Property or Public Utilities Facilities.
Principal shall replace or repair, or have replaced or repaired, all public streets, public improvements, public utility facilities, and surveying monuments which are destroyed or damaged in the performance of any work under this Agreement. Principal shall bear the entire cost of replacement or repairs of any and all public or private utility property damaged or destroyed in the performance of any work done under this Agreement, whether such property is owned by the United States or any agency thereof, or the State of California, or any agency or political subdivision thereof, or by the City or any public or private utility corporation or by any combination of such Principals. Any repair or replacement shall be to the satisfaction of the City Engineer. City shall be under no obligation whatsoever to accept the Required Improvements completed under this agreement until such time as all such repairs have been fully made.
7. Warranty. If, within a period of two (2) years after final acceptance by the City of the Required Improvements, any improvement or part of any improvement furnished and/or installed or constructed, or caused to be installed or constructed by Principal, or any of the work done under this Agreement materially fails to fulfill any of the requirements of this Agreement or the specifications referred to herein, Principal shall without delay and without any cost to City, repair, replace or reconstruct any defective or otherwise unsatisfactory part or parts of the improvements. If the Principal fails to act promptly or in accordance with this requirement, or if the exigencies of the situation require repairs or replacements to be made before the Principal can be notified, then the City may, at its option, make the necessary repairs or replacements or perform
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the necessary work, and Principal shall pay to City the actual cost of such repairs plus fifteen percent (15%) within thirty (30) days of the date of billing for such work by City. As to any Required Improvements which have been repaired, replaced, or reconstructed during the Warranty, Principal and its surety hereby agree to extend the Warranty for an additional __ year period following City’s acceptance of the repaired, replaced, or reconstructed Required Improvements.
Nothing herein shall relieve Principal from any other liability it may have under federal, state, or local law to repair, replace, or reconstruct any Required Improvement following expiration of the Warranty or any extension thereof. Principal’s warranty obligation under this section shall survive the expiration or termination of this Agreement.
8. Defense, Indemnification and Hold Harmless. Principal shall defend, indemnify, and hold harmless City, its elected officials, officers, employees, and agents from any and all actual or alleged claims, demands, causes of action, liability, loss, damage, or injury, to property or persons, including wrongful death, whether imposed by a court of law or by administrative action of any federal, state, or local governmental body or agency, arising out of or incident to any acts, omissions, negligence, or willful misconduct of Principal, its personnel, employees, agents, or contractors in connection with or arising out of construction or maintenance of the Required Improvements, or performance of this Agreement. This indemnification includes, without limitation, the payment of all penalties, fines, judgments, awards, decrees, attorneys’ fees, and related costs or expenses, and the reimbursement of City, its elected officials, officers, employees, and/or agents for all legal expenses and costs incurred by each of them. This indemnification excludes only such portion of any claim, demand, cause of action, liability, loss, damage, penalty, fine, or injury, to property or persons, including wrongful death, which is caused solely and exclusively by the gross negligence or willful misconduct of City as determined by a court or administrative body of competent jurisdiction. Principal’s obligation to indemnify City shall survive the expiration or termination of this Agreement, and shall not be restricted to insurance proceeds, if any, received by City, its elected officials, officers, employees, or agents.
9. Security.
a. Required Security. Concurrently with the execution of this Agreement, the Principal shall furnish the City with:
(1) Faithful Performance Security. Principal shall provide faithful performance security to secure faithful performance of this Agreement (“faithful performance” security). This security shall be in the amount of one hundred percent (100%) of the total estimated cost of the Required Improvements, as determined by the City Engineer, which total cost is in the amount of $ ( and No/100 Dollars).
(2) Payment Security. Principal shall also provide payment security to secure payment to the contractors, subcontractors, laborers, material men, and other persons furnishing labor, materials, or equipment for the work (“payment security”). This security shall be in the amount of fifty percent (50%) of the total estimated cost of the Required Improvements, as determined by the City Engineer, which total cost is in the amount of $ ( and No/100 Dollars), and shall secure the obligations set forth in Title 1 (commencing with Section 8000) through Title 3 (commencing with Section 9000) of Part 6 of Division 4 of the Civil Code of the State of California.
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(3) Guarantee and Warranty Security. Principal shall also file with this Agreement a “guarantee and warranty security” in the amount of ten percent (10%) of the total estimated cost of the Required Improvements, as determined by the City Engineer, which total cost is in the amount of $ ( and No/100 Dollars) to guarantee and warrant the Required Improvements for a period of two (2) years following their completion and acceptance against any defective work or labor done, or defective materials furnished. b. Letter of Credit in Lieu of Bonds. In lieu of said surety bonds, Principal shall have the right to deposit with the City, either a standby irrevocable letter of credit in a form acceptable to the City, issued by a financial institution to the City as beneficiary, or cash, in the sum of $ _________ to secure the faithful performance of this agreement as aforesaid, and the sum of $ _________ for the purpose of securing payment of the claims of the contractor, subcontractor and all persons renting equipment or furnishing labor and materials to them in connection with said work and improvements.
c. Additional Requirements.
(1) Any bonds submitted as security pursuant to this section shall be furnished by companies who are authorized and licensed by the Insurance Commissioner of the State of California as “admitted surety insurers,” to act as surety upon bonds and undertakings.
The company shall maintain in this State at least one office for the conduct of its business. Bonds must be approved as to form by the City Attorney and approved as to sufficiency by the City Engineer. The premiums for said bonds shall be paid by Principal. (2) The surety (or sureties) shall furnish reports as to the financial conditions from time to time as requested by the City.
(3) Alternative forms of security shall be approved by the City Engineer and shall be approved as to form by the City Attorney. All required securities shall be in a form approved by the City Attorney.
(4) No change, alteration, or addition to the terms of this Agreement or the plans and specifications incorporated herein shall in any manner affect the obligation of the sureties.
(5) The securities shall be irrevocable, shall not be limited as to time (except as to the one-year guarantee and warranty period) and shall provide that they may be released, in whole or part, only upon the written approval of the City Engineer and as provided in this Agreement. All securities provided pursuant to this Agreement shall expressly obligate the surety for any extension of time authorized by the City for Principal’s completion of the Required Improvements, whether or not the surety is given notice of such an extension by the City. (6) The Attorney-in-Fact (resident agent) who executes the securities on behalf of the surety company must attach a copy of his/her Power of Attorney as evidence of his authority. A notary shall acknowledge the power as of the date of the execution of the surety bond that it covers.
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d. Principal’s Liability. While no action of Principal shall be required in order for City to realize on its security under any security instrument, Principal agrees to cooperate with City to facilitate City’s realization under any security instrument, and to take no action to prevent City from such realization under any Security instrument. Notwithstanding the giving of any security instrument or the subsequent expiration of any security instrument or any failure by any surety or financial institution to perform its obligations with respect thereto, Principal shall be personally liable for performance under this Agreement and for payment of the cost of the labor and materials for the improvements required to be constructed or installed hereby and shall, within ten (10) days after written demand therefor, deliver to City such substitute security as City shall require satisfying the requirements in this Section 10. e. Release of Security.
(1) Guarantee and Warranty Security. Any unused portion of the guarantee and warranty security may be released two (2) years after acceptance of the Required Improvements by the City. The amount to be released shall first be reduced by the amount deemed necessary by the City to correct any defects in the Required Improvements that are known or believed by the City to exist at the end of the guarantee and warranty period. Any unreleased portion of the guarantee and warranty security shall remain in full force and effect unless and until the City notifies Principal in writing that the necessary repairs have been made to the satisfaction of the City Engineer and that the warranty period has been successfully completed. (2) Payment Security. The payment security may be released after passage of the time within which claims of lien are required to be recorded pursuant to Article 2 of Chapter 4 of Title 2 of Part 6 of Division 4 of the Civil Code (commencing with Section 8410) and upon presentation of proof to the satisfaction of the City Attorney that no claims have been recorded, but in no event shall such security be released prior to one hundred and twenty (120) days after acceptance of the Required Improvements by the City. The amount to be released shall first be reduced by the total of all claims on which an action has been filed and notice thereof given in writing to the City. City expressly may require the surety not to release the amount of security deemed necessary by City to assure payment of reasonable expenses and fees, including reasonable attorney’s fees.
(3) Faithful Performance Security. The faithful performance security may be released upon acceptance of the Required Improvements by the City.
10. Insurance. Principal shall procure and maintain, and shall require its contractors to procure and maintain, during construction of any Public Improvement pursuant to this Agreement, insurance of the types, in the amounts, and meeting the terms and conditions described in Exhibit “B.”
11. Principal Not Agent of City. Neither Principal nor any of Principal’s agents, contractors, or subcontractors are or shall be considered to be agents of the City in connection with the performance of Principal’s obligations under this Agreement.
12. Default; Notice; Remedies.
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a. Notice. If Principal neglects, refuses, or fails to fulfill or timely complete any obligation, term, or condition of this Agreement, or if City determines there is a violation of any federal, state, or local law, ordinance, regulation, code, standard, or other requirement, City may at any time thereafter declare Principal to be in default or violation of this Agreement and make written demand upon Principal or its surety, or both, to immediately remedy the default or violation. Principal shall commence the work required to remedy the default or violation within ten (10) days of the written demand from the City. If the default or violation constitutes an immediate threat to the public health, safety, or welfare, City may provide the demand verbally, and Principal shall commence the required work within twenty-four (24) hours thereof.
Immediately upon City’s issuance of the demand to remedy the default, Principal and its surety shall be liable to City for all costs of construction and installation of the Required Improvements and all other administrative costs expenses as provided for in Section 9.0 of this Agreement. b. Failure to Remedy; City Action. If the work required to remedy the noticed default or violation is not diligently prosecuted to a substantial completion acceptable to City within a reasonable time designated by the City, City may complete all remaining work, arrange for the completion of all remaining work, and/or conduct such remedial activity as in its sole and absolute discretion it believes is required to remedy the default or violation. All such work or remedial activity shall be at the sole and absolute cost, expense, and liability of Principal and its surety, without the necessity of giving any further notice to Principal or surety. City’s right to take such actions shall in no way be limited by the fact that Principal or its surety may have constructed any, or none of the required or agreed upon Required Improvements at the time of City’s demand for performance. In the event City elects to complete or arrange for completion of the remaining work and improvements, City may require all work by Principal or its surety to cease in order to allow adequate coordination by City. Notwithstanding the foregoing, if conditions precedent for reversion to acreage can be met and if the interests of City will not be prejudiced thereby, City may also process a reversion to acreage and thereafter recover from Principal or its surety the full cost and expense incurred.
c. Other Remedies. No action by City pursuant to this section shall prohibit City from exercising any other right or pursuing any other legal or equitable remedy available under this Agreement or any federal, state, or local law. City may exercise its rights and remedies independently or cumulatively, and City may pursue inconsistent remedies. City may institute an action for damages, injunctive relief, or specific performance.
13. Notices. All notices required under this Agreement shall be in writing, and delivered in person or sent by registered or certified mail, postage prepaid.
Notices required to be given to City shall be addressed as follows:
City of San Carlos
City Engineer
600 Elm St.
San Carlos, CA 94070
Notices required to be given to Principal shall be addressed as follows:
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Name
Address
Address
14. Attorney’s Fees. If any arbitration, lawsuit, or other legal action or proceeding is brought by one Party against the other Party in connection with this Agreement, the prevailing party, whether by final judgment or arbitration award, shall be entitled to and recover from the other party all attorney’s fees and costs. Any judgment, order, or award entered in such legal action or proceeding shall contain a specific provision providing for the recovery of attorney’s fees and costs.
15. Assignment. Principal shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without prior written consent of City.
Any attempt to do so shall be null and void, and any assignee, hypothecate, or transferee shall acquire no right or interest by reason of such attempted assignment, hypothecation, or transfer.
Unless specifically stated to the contrary in City’s written consent, any assignment, hypothecation, or transfer shall not release or discharge Principal from any duty or responsibility under this Agreement.
16. Compliance with Laws. Principal, its agents, employees, contractors, and subcontractors shall comply with all federal, state and local laws in the performance of the work required by this Agreement including, but not limited to, obtaining all applicable permits and licenses.
17. Prevailing Wage. If and to the extent applicable, Principal shall comply with, and cause its contractors and subcontractors to comply with, all State Labor Code requirements and implementing regulations of the Department of Industrial Relations pertaining to “public works,” as defined by Labor Code section 1720, including the payment of prevailing wages for any of the Required Improvements that may constitute a “public work” under Labor Code section 1720 (collectively, “Prevailing Wage Laws”); (2) require the contractor(s) to submit, upon request by City, certified copies of payroll records to City at the Property or at another location within City, and to maintain and make records available to City and its designees for inspection and copying to ensure compliance with Prevailing Wage Laws; and (3) include in each of its contractor agreements, a provision in form acceptable to City, obligating the contractor to require its contractors and/or subcontractors to comply with Prevailing Wage Laws, and to submit, upon request by City, certified copies of payroll records to City and to maintain and make such payroll records available to City and its designees for inspection and copying during regular business hours at the Property or at another location within City.
In the event any liabilities, demands, obligations, lawsuits, proceedings, orders, claims, damages, fines, penalties and expenses, including attorneys’ fees and costs, costs of complying with or challenging a subpoena, and costs of carrying out a settlement, judgment, decree, or order arise out of or are connected to Principal’s or its contractors' or subcontractors’ obligations to comply with all Prevailing Wage Laws or failure to comply with all Prevailing Wage Laws, including all Claims that may be made by contractors, subcontractors or other third party claimants pursuant to Labor Code sections 1726 and 1781 (each individually a “Prevailing Wage Claim” and collectively “Prevailing Wage Claims”), Principal and City, its elected and appointed
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officers, officials, employees, contractors, representatives and authorized agents (“City Parties”) shall meet and confer within 15 days of receipt of such Prevailing Wage Claim to coordinate the defense, provided that Principal and City Parties shall meet and confer within 5 days if the Prevailing Wage Claim is a subpoena. Principal shall defend City Parties (with counsel reasonably acceptable to the City) against any Prevailing Wage Claims. Notwithstanding anything to the contrary, if the City Parties elect to retain independent counsel in connection with the Prevailing Wage Claims, the City Parties and the Principal shall enter into a Joint Defense Agreement. This provision in no way alters the applicability of Chapter 1.30 of the San Carlos Municipal Code to Prevailing Wage Claims.
Principal hereby waives and releases City Parties from any and all manner of Claims or other compensation whatsoever, in law or equity, of whatever kind or nature, whether known or unknown, direct or indirect, foreseeable or unforeseeable, absolute or contingent, now existing or which may in the future arise, including lost business opportunities or economic advantage, and special and consequential damages, arising out of, directly or indirectly, or in any way connected with Principal’s obligation to comply with all Prevailing Wage Laws. Principal is aware of and familiar with the provisions 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 EXECUTING THE
RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE
MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE
DEBTOR OR RELEASED PARTY.
INITIALS: PRINCIPAL _______
18. Waiver. City’s failure to insist upon strict compliance with any provision of this Agreement or to exercise any right or privilege provided herein, or City’s waiver of any breach of this Agreement, shall not relieve Principal of any of its obligations under this Agreement, whether of the same or similar type. The foregoing shall be true whether City’s actions are intentional or unintentional. Principal agrees to waive, as a defense, counterclaim or set off, any and all defects, irregularities or deficiencies in the authorization, execution or performance of the Required Improvements or this Agreement, as well as the laws, rules, regulations, ordinances or resolutions of City with regards to the authorization, execution or performance of the Required Improvements or this Agreement.
19. No Vesting of Rights. Entering into this Agreement shall not be construed to vest Principal’s rights with respect to any change in any zoning or building law or ordinance.
20. Approvals by City; Amendment. Any approval or consent that is to be given by the City under this Agreement shall be in writing, and any approval or consent that is not in writing shall not be binding on the City. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
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21. Construction and Interpretation. It is agreed and acknowledged by Principal that the provisions of this Agreement have been arrived at through negotiation, and that Principal has had a full and fair opportunity to revise the provisions of this Agreement and to have such provisions reviewed by legal counsel. Therefore, the normal rule of construction that any ambiguities are to be resolved against the drafting party shall not apply in construing or interpreting this Agreement.
22. Successors and Assigns -- Covenant Running With the Land. This Agreement shall inure to the benefit of, and be binding upon, the successors and assigns of the respective parties.
The Agreement shall be recorded in the Office of the Recorder of San Mateo County and shall constitute a covenant running with the land and an equitable servitude upon the subject property.
23. Actions. Any action by any party to this Agreement, or any action concerning a security furnished pursuant thereto, shall be brought in the appropriate court of competent jurisdiction within the County of San Mateo, State of California, notwithstanding any other provision of law which may provide that such action may be brought in some other location. The law governing this Agreement is the law of the State of California.
24. Integration. This Agreement is an integrated agreement. It supersedes all prior negotiations, representations, or agreements, either written or oral.
25. Construction; References; Captions. It being agreed the Parties or their agents have participated in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days, or period for performance shall be deemed calendar days and not work days. All references to Principal include all personnel, employees, agents, and subcontractors of Principal, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.
26. Severability. If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall continue in full force without being impaired.
27. Counterparts. This Agreement may be executed in counterpart originals, which taken together, shall constitute one and the same instrument.
28. Effective Date of Agreement. This Agreement shall not become effective until the date it has been formally approved by the City and executed by the appropriate authorities of City and Principal.
29. Relationship Between The Parties. The Parties hereby mutually agree that neither this Agreement, nor any other related entitlement, permit, nor approval issued by City for the Property shall operate to create the relationship of partnership, joint venture, or agency between City and Principal. Principal’s contractors and subcontractors are exclusively and solely under the
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control and dominion of Principal. Nothing herein shall be deemed to make Principal or its contractors an agent or contractor of City.
IN WITNESS WHEREOF, the parties have executed this Agreement as follows:
CITY OF SAN CARLOS
Jeff Maltbie, City Manager
ATTEST:
___________________________
Crystal Mui
City Clerk
APPROVED AS TO FORM
___________________________
Gregory J. Rubens
City Attorney
PRINCIPAL:
Name:
Title:
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EXHIBIT “A”
LEGAL DESCRIPTION OF PROPERTY
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August 14, 2023 Packet Pg. 970
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August 14, 2023 Packet Pg. 971
Exhibit E – Page B-1 PUBLIC IMPROVEMENT AGREEMENT
4856-8447-6239 v20
EXHIBIT “B”
INSURANCE
Principal and Principal’s contractors shall submit to the City a Certificate of Insurance for the following policies:
x Construction Minimum General Liability - $2 million per occurrence & general aggregate limit of twice required occurrence, naming City as additional insured as set forth below
x Minimum Auto Liability - $1 million per occurrence & general aggregate limit of twice required occurrence
x Workers’ Compensation - $1 million per accident for bodily injury or disease The Certificate of Insurance submitted shall be maintained during the term of this Agreement. In addition, the Principal shall name the City of San Carlos as additionally insured as follows: “The City of San Carlos, its Council Members, and all officers, employees, and agents of each of them” Inclusion of, “The City of San Carlos, its Council Members, and all officers, employees, and agents of each of them,” as insured shall not in any way affect its rights either as respects any claim, demand, suite or judgment made, brought or recovered against Principal. The policy shall protect each of them in the same manner as though a separate policy had been issued to each, but nothing in the policy shall operate to increase the Company’s liability as set forth in its policy beyond the amount or amounts shown or to which the company would have been liable if only one interest had been named as an insured. The policies of Principal and Principal’s Contractor shall be primary over any insurance carried by the City and that the policy will not be cancelled or reduced without thirty (30) days prior notice in writing being given to the City.
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August 14, 2023 Packet Pg. 972
Exhibit F – Page 1 PUBLIC IMPROVEMENT AGREEMENT
4856-8447-6239 v20
EXHIBIT F
PUBLIC ACCESS COVENANT
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August 14, 2023 Packet Pg. 973
Exhibit F – Page 1
4856-8447-6239 v20
OFFICIAL BUSINESS
Document entitled to free recording
Government Code Section 6103
RECORDING REQUESTED BY AND
PLEASE RETURN TO:
City of San Carlos
600 Elm Street
San Carlos, CA 94070
Attention: City Clerk
SPACE ABOVE THIS LINE FOR
RECORDER’S USE
APN: 046-041-380
Address: 642 Quarry Road, San Carlos, CA
COVENANTS, AGREEMENTS, AND DEED RESTRICTIONS FOR PRIVATELY
OWNED PUBLICLY ACCESSIBLE (POPA) OPEN SPACE
This Covenants, Agreements, and Deed Restrictions for Privately Owned Publicly Accessible (POPA) Open Space (this “Agreement”), is made and entered into as of _______________, 2023 (“Effective Date”) by and between the CITY OF SAN CARLOS, a California municipal corporation (“City”), and ____ (“Grantor”).
RECITALS
A. Grantor owns that certain real property located in the City of San Carlos, State of California, as more particularly described in Exhibit A (the “Property” or “Grantor’s Property”), attached hereto and incorporated herein.
B. Grantor intends to develop the Property with a research and development campus that will include two six-story office/laboratory buildings with operations through Biosafety Level 2 (each, a “Building”), which total approximately 410,072 square feet, and one ten-level parking structure, which includes one below grade level (“Project”). The Building on the north portion of the Property shall be referred to as the “North Building” and the Building on the south portion of the Property shall be referred to as the “South Building.” C. Grantor and City are parties to that certain Development Agreement dated ____ (“Development Agreement”). In connection with the Project, City has issued the following approvals (collectively, the “Project Approvals”):
1. Certification of the MND by Resolution No. _______ adopted by the City Council on _______________;
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August 14, 2023 Packet Pg. 974
Exhibit F – Page 2
4856-8447-6239 v20
2. Approval of the Mitigation, Monitoring and Reporting Plan (“MMRP”) by Resolution No. ___ adopted by the City Council on ____________;
3. Approval of rezoning and Planned Development Plan by Ordinance No. ________ adopted by the City Council on _____________;
4. Approval of Transportation Demand Management Plan by the Planning Commission on June 19, 2023;
5. Approval of Design Review Certificate by the Planning Commission on June 19, 2023;
6. Approval of Grading & Dirt Haul Certificate by the Planning Commission on June 19, 2023.
D. The Project includes an approximately 18,400 square foot central plaza (“Central Plaza”) and an approximately 7,500 square foot plaza at the corner of Old County Road and Quarry Road (“Corner Plaza”) that will serve as privately owned publicly accessible open space as more particularly described in Exhibit B (the “POPA Open Space”), attached hereto and incorporated herein. The portion of the Property that is subject to and bound by this Agreement is described in Exhibit B.
D. This Agreement is intended to satisfy Condition No. ___ of the _____, as well as Section ___ of the Development Agreement.
E. The parties now desire to set forth their respective rights and obligations with respect to the operation, use and maintenance of the POPA Open Space.
NOW, THEREFORE, for good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties hereto hereby covenant, represent, and agree as follows:
1. Definitions. The following defined terms shall apply to this Agreement. a. “Buildings” means the building structures located on the Property. b. “Elements” means the pickleball court, a bocce court, a community event space, a multi-purpose stage, a fenced dog park, and a community botanical garden. c. “Furnishings” means non-affixed outdoor equipment and furnishings, including, but not limited to, outdoor dining furniture, displays, and seating. d. “Landscape Area” means the landscape area(s) within the POPA Open Space as shown in Exhibit C.
e. “Creek Path” means the proposed path adjacent to Belmont Creek and to the POPA Open Space, as depicted on Exhibit B, that functions as a public path for bicyclists and pedestrians. The Creek Path is governed by a separately recorded public access easement (PAE).
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Exhibit F – Page 3
4856-8447-6239 v20
f. “Other Site Improvements” means all other improvements on the Property not associated with the POPA Open Space, which may be located adjacent to or below (i.e., below-grade parking or utilities) the POPA Open Space. g. “POPA Open Space Improvements” is defined in Section 6. h. “Public Plaza Purposes” is defined in Section 2.
i. “Related Improvements” means all other improvements within the POPA Open Space, including, but not limited to, Furnishings, benches, signage, trash receptacles, lighting, finish materials, and utilities. j. “Sidewalk and Landscape Improvements” means pathway
improvements, consisting of sidewalk materials suitable for sidewalk use consistent with applicable law, including the Americans with Disabilities Act (ADA), constructed by Grantor within the POPA Open Space, and related landscaping, landscape improvements, including an irrigation system, and Related Improvements installed within the Landscape Area by Grantor. k. “Subsequent Project Approvals” means subsequent land use approvals, entitlements, and permits other than the Existing Approvals necessary or desirable for implementation or modification of the Project.
2. Grant of Public Access to POPA Open Space. The POPA Open Space shall be used only for Public Plaza Purposes. “Public Plaza Purposes” means use of the POPA Open Space as a privately owned and maintained plaza held open to the public for public access and open space purposes, including, but not limited to, walking, sitting, picnicking, dining, active and passive recreational uses, and travel by non-automotive means, every day between and during the hours set forth in Section 5 (Operating Hours) of this Agreement.
3. Termination. Notwithstanding any other provision of this Agreement, this Agreement shall terminate in the event that:
a. All Buildings and Improvements associated with the Project are demolished (provided that this Agreement shall not terminate in the event that any Building is demolished and reconstructed following a casualty), or the Project undergoes a substantial change that is not already permitted under the Project Approvals, and public access cannot be maintained by modifying the boundaries of the Central Open Space or Corner Plaza; or b. City unilaterally terminates this Agreement by a document that has been approved and executed by City, acknowledged and recorded in the Official Records of San Mateo County, California.
Except as provided in this Section, the Agreement shall survive any damage, renovation, repair or replacement of all or any portion of Grantor's Property or the privately owned improvements thereon. The rights granted pursuant to this Agreement shall not be terminated or extinguished by nonuse, abandonment, or merger.
4. Signage. The following signage shall be clearly and visibly posted within the POPA Open Space by Grantor and maintained in good condition. Signs must comply with all
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Exhibit F – Page 4
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Laws (defined below) and Grantor must obtain all required Subsequent Project Approvals prior to installation.
a. A primary monument sign with the name of the plaza must be prominently located at the main entrance to the Central Plaza; additional monument signs located at secondary entrances may be considered.
b. At each entrance(s) to the POPA Open Space, a sign shall be posted with the following rules, regulations, and information for visitors:
1. announce the area as a privately owned publicly accessible open space for public recreation and use;
2. hours of use;
3. the phone number of the Grantor’s representative for visitors to contact for maintenance and safety concerns; and
4. state “in case of emergencies, please call 9-1-1.”
c. Fire lane signage must be posted in accordance with Fire Code requirements.
5. Operating Hours. The POPA Open Space shall be publicly accessible during the operating hours of City parks, which may change from time to time, but are generally seven days a week from thirty minutes prior to sunrise to thirty minutes after sundown. The Creek Path, under a separate PAE, is accessible to the public for ingress and egress by pedestrians and nonautomotive travel during the operating hours of City parks, which may change from time to time, but are generally seven days a week from thirty minutes prior to sunrise to thirty minutes after sundown.
6. Compliance with Law. Grantor shall comply with all applicable legal requirements including all federal, state and local laws and regulations (including City ordinances, resolutions and policies, and requirements of other agencies with authority), whether or not said laws or regulations are expressly stated in this Agreement (collectively, “Laws”), and shall, at its sole cost and expense, obtain and maintain all necessary permits and licenses.
7. Maintenance. Grantor, at its expense, shall diligently maintain, repair and care for the POPA Open Space and the improvements to be constructed within the POPA Open Space in accordance with the Development Agreement and the Project Approvals, including, but not limited to, the Elements, Landscape Area, Related Improvements, and Sidewalk and Landscape Improvements (collectively, the “POPA Open Space Improvements”) and make any replacements of the same in conformance with this Agreement and in accordance with the custom and practice generally applicable to public open spaces in the City. City shall not be responsible for any of the costs of maintaining, repairing or replacing the POPA Open Space Improvements. The following standards (collectively, the “Maintenance Standards”) shall be complied with by Grantor and its maintenance staff, contractors and/or subcontractors.
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Exhibit F – Page 5
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a. Landscape Maintenance: Landscape maintenance shall include:
watering/irrigation; fertilization; mowing; edging; trimming of grass; tree and shrub pruning; trimming and shaping of trees and shrubs to maintain a healthy, natural appearance, and irrigation coverage; replacement, as needed, of all plant materials; control of weeds in all planters, shrubs, lawns, ground covers, or other planted areas; regular maintenance and care of the demonstration/educational garden; staking for support of trees; and repair and replacement of irrigation system components, as needed. Irrigation shall be installed and maintained in a manner that preserves vegetation while reducing use of water. b. Clean-Up Maintenance: Clean-up maintenance shall include: maintenance of all sidewalks, paths, and other paved areas, play equipment, benches, picnic tables and other improvements, in clean and weed-free condition; maintenance of all such areas clear of dirt, mud, trash, waste, debris or other matter which is unsafe or unsightly; removal of graffiti or other forms of vandalism; removal of all trash, litter, and other debris from improvements and landscaping prior to mowing; clearance and cleaning of all areas maintained prior to the end of the day on which maintenance operations are performed to ensure that all cuttings, weeds, leaves and other debris are properly disposed of by maintenance workers. c. Hardscape and Improvements Maintenance: Hardscape and improvements maintenance shall include: upkeep, repair and replacement of all exterior lighting fixtures, bulbs, ballasts and wiring; benches and other seating; picnic tables; utilities systems; concrete work; path paving; water fountains; bollards; pergolas; gateways; trash containers; fencing; and all other improvements comprising the POPA Open Space Improvements and any replacements thereof.
d. General: All maintenance work shall conform to all applicable federal and state Occupational Safety and Health Act standards and regulations for the performance of maintenance. Any and all chemicals, unhealthful substances, and pesticides used in and during maintenance shall be applied in strict accordance with all Laws. Precautionary measures shall be employed recognizing that all areas are open to public access. Glyphosate (Roundup) shall not be used at any time.
e. Buildings Along POPA Open Space: The Project Approval includes Buildings with ground-floor commercial uses fronting along the POPA Open Space, which may include Furnishings from time to time. These Furnishings shall not impede use or enjoyment of the POPA Open Space; any Furnishings in the POPA Open Space must be open to general public use; and no Furnishings shall be permanently affixed within the POPA Open Space.
8. Grantor Default; City May Maintain Improvements.
a. If Grantor does not maintain the POPA Open Space and the POPA Open Space Improvements in accordance with the Maintenance Standards, City, at Grantor’s expense, shall have the right but not the obligation to maintain the POPA Open Space and the POPA Open Space Improvements, or to contract for the correction of such deficiencies, after written notice to Grantor. However, prior to taking any such action, City shall notify Grantor in writing if the condition of the POPA Open Space and/or the POPA Open Space Improvements does not conform to the Maintenance Standards and to specify in detail the deficiencies and the actions to be taken by Grantor to cure the deficiencies. Upon notification of any maintenance deficiency,
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Exhibit F – Page 6
4856-8447-6239 v20
Grantor shall have thirty (30) days within which to correct, remedy or cure the deficiency. If the written notice states that the problem is urgent and relates to the public health and safety, then Grantor shall have a reasonable time not to exceed three (3) business days to rectify the problem. b. If Grantor fails to cure any such deficiencies following written notice and an opportunity to cure as provided for above, or should an emergency require immediate action, City, at its option, may make the necessary repairs, replacements or other work, and Grantor shall reimburse City such costs, plus a 15% administrative fee. In addition to the foregoing remedy, City may also pursue any and all other remedies available in law or equity in the event of Grantor’s breach of the maintenance obligations set forth herein, and, in the event legal action by City is necessary, Grantor will pay City’s attorney’s fees and court costs, together with interest from the date City provided notice under this paragraph 8, as determined by the court.
9. Procedures for Repairs, Upgrades, and Modifications; Closures. It is anticipated that over time the POPA Open Space will require repairs, replacements, upgrades, and modifications by Grantor, similar to a City park, for which the following procedures shall apply:
a. Repairs. Should an Element or Related Improvement be in disrepair, Grantor shall repair it as quickly as feasible to the same working condition as previously existed and approved.
b. Like-for-Like Replacements. Any Element or Related Improvement that has exceeded its useful life or needs replacement can be modified with a like-for-like replacement. Grantor shall submit and obtain all necessary Subsequent Project Approvals prior to performing any such replacement.
c. Upgrades. From time to time, Grantor may desire to upgrade an existing approved Element or Related Improvement to a different Element that provides a similar recreational benefit, enjoyment or activity. Grantor shall submit and obtain all necessary Subsequent Project Approvals prior to installing any such upgrades. d. Modifications. Grantor from time-to-time may wish to modify the POPA Open Space design to align with current recreational trends or changing community interests and Grantor shall submit and obtain all necessary Subsequent Project Approvals prior to performing modifications.
e. Closures During Repairs, Replacements, Upgrades, or Modifications. If Grantor performs repairs, replacements, upgrades, or modifications to the Elements, Sidewalk and Landscape Improvements, and Related Improvements or any Building adjacent to the POPA Open Space Improvements, Grantor may temporarily exclude the public from those Elements, Sidewalk and Landscape Improvements, and Related Improvements that are undergoing or are adjacent to a Building undergoing repairs, replacements, upgrades, or modifications. Grantor shall erect appropriate signage and safety barriers to notify the public of any restriction on public use of the Elements, Sidewalk and Landscape Improvements, and Related Improvements during repairs, replacements, upgrades, and modifications thereto or to any adjacent Building. Grantor shall provide City at least forty-eight (48) hours’ written notice of any complete closure of the Corner Plaza or Central Plaza lasting one (1) day or more, except that in cases of emergency
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Exhibit F – Page 7
4856-8447-6239 v20
Grantor shall provide City as much notice as reasonably feasible by e-mail or telephone at the email address or telephone number designated by City by written notice.
10. Rules and Regulations. Grantor may adopt and implement reasonable rules and regulations for use of the POPA Open Space consistent with this Agreement, for purposes of public health, safety and security, and to ensure that the POPA Open Space is available and used for Public Plaza Purposes. In addition, Grantor may establish reasonable rules relating to use of the pickleball and bocce courts. Grantor shall provide City notice of such rules and meet and confer with City regarding any City concerns about such rules. Grantor may offer tenants priority and establish an electronic reservation system for use of the pickleball and bocce courts. Signs or directions for accessing the electronic rules and reservation system for the pickleball and bocce courts shall be available to the public in a conspicuous location in, on, or immediately adjacent to the pickleball and bocce courts.
11. Future Redevelopment of Site. Should Grantor desire to redevelop the Property and modify the POPA Open Space design, location, and/or configuration, Grantor shall submit applications to City for all necessary Subsequent Project Approvals and shall make best efforts to ensure that any proposed redevelopment provides substantially the same acreage as the POPA Open Space.
12. No Liability of City. City shall not be responsible for any of the costs of maintaining, repairing, replacing or modifying the POPA Open Space or POPA Open Space Improvements. In addition, neither City nor any of its officers, agents, volunteers or employees shall be liable to Grantor, or its contractors, subcontractors, officers, agents or employees, for any act or omission, injury or damage that may result to any person or property, or any obligation whatsoever, arising out of or in connection with any work to be performed by Grantor hereunder or by failure to perform under this Agreement.
13. Concurrent Uses. Each party agrees and acknowledges that the POPA Open Space will be concurrently used by the public and Grantor. Grantor shall not obstruct, use or permit the use of the POPA Open Space in any manner that will unreasonably interfere with Public Plaza Purposes, its obligations under the Development Agreement, Project Approvals or this Agreement, ingress to, egress from, or public use and enjoyment of the POPA Open Space, or other rights granted hereunder. Without limiting the foregoing, Grantor agrees to utilize diligent good faith efforts to ensure that any maintenance, repair or other work is undertaken expeditiously and in a manner that minimizes any adverse impacts on any of the rights under this Agreement.
14. Liens. Grantor shall pay, when due, all persons furnishing labor or materials in connection with any work to be performed by or on behalf of Grantor related to the POPA Open Space or the POPA Open Space Improvements, and shall keep City’s interest in the POPA Open Space and POPA Open Space Improvements thereon free and clear of any related mechanics’ lien.
15. Covenants Running with the Land. All of the provisions contained in this Agreement shall be binding upon Grantor and its successors and assigns, and all other persons acquiring all or a portion of Grantor’s Property, whether by operation of law or in any manner whatsoever. All of the provisions contained in this Agreement shall be enforceable as equitable
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Exhibit F – Page 8
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servitudes and shall constitute covenants running with the land pursuant to California law. The provisions of this Agreement shall not be construed as personal obligations of Grantor or as an easement. The parties acknowledge and agree that this Agreement is to implement Section 6.1.1 of the Development Agreement, the terms of which constitute covenants running with the land pursuant to California Government Code Section 65868.5. Each covenant herein to act or refrain from acting is intended to burden Grantor’s Property, runs with Grantor’s Property and is binding on Grantor and its heirs, successors and assigns. Each and every contract, deed or other instrument covering, conveying or otherwise transferring the Property or any portion thereof or interest therein shall conclusively be held to have been executed, delivered and accepted subject to this Agreement. Upon conveyance of fee title to Grantor’s Property by Grantor or its successor owner, as applicable, the conveying party shall be released from all obligations under this Agreement accruing after the effective date of such conveyance.
16. Recordation; Amendment; No Waiver. This Agreement shall be recorded in the Official Records of San Mateo County. The parties hereto declare and agree that each of the rights granted hereunder are a burden on the Grantor's Property, and shall inure to the benefit of City, its successors and assigns, and all those taking by, under or through City. This Agreement may be modified only by the written consent of the parties, evidenced by a document that has been fully executed, acknowledged and recorded in the Official Records of San Mateo County, California. No waiver of any breach of any of the terms, covenants, agreements, restrictions or conditions of this Agreement shall be construed to be a waiver of any succeeding breach of the same or other terms, covenants, agreements, restrictions and conditions hereof.
17. Legal and Equitable Relief. Each party shall have the right to prosecute any proceedings at law or in equity against any other party, or any other person or entity, violating or attempting to violate or defaulting in the performance of any of the provisions contained in this Agreement in order to prevent such party, person or entity from violating or attempting to violate or defaulting in the performance of any of the provisions of this Agreement or to recover damages for any such violation or default. It is agreed that damages would be an inadequate remedy for violation of this Agreement by any party and, therefore, injunctive or other appropriate equitable relief shall be available to the other party. The remedies available under this Section 16 shall include, by way of illustration but not limitation, ex parte applications for temporary restraining orders, preliminary injunctions and permanent injunctions enjoining any such violation or attempted violation or default, and actions for specific performance of this Agreement. The result of every action or omission whereby any covenant, condition or restriction herein contained is violated in whole or in part is hereby declared to be and to constitute a nuisance, and every remedy allowed by law or equity against any party, either public or private, shall be applicable against every such result and may be exercised by any party.
18. Attorneys' Fees. In the event that any action is brought by either party hereto as against the other party for the enforcement or declaration of any right or remedy in or under this Agreement or for the breach of any covenant or condition of this Agreement, the prevailing party shall be entitled to recover, and the other party agrees to pay (in addition to any other relief that may be granted) all fees and costs to be fixed by the court therein including, but not limited to, attorneys' fees.
19. Indemnification. Grantor shall indemnify, defend (with counsel reasonably acceptable to City) and hold harmless City and its elected and appointed officials, officers,
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Exhibit F – Page 9
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employees, contractors, agents, and representatives (individually, a “City Party” and, collectively, “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 attorneys’ fees) (collectively "Claims"), including, but not limited to, Claims for bodily injury, sickness, disease or death of any person or damage to real or personal property, tangible or intangible arising directly or indirectly from the acts, omissions, negligence or willful misconduct of Grantor or its contractors, subcontractors, agents or employees (each, a “Grantor Party” and collectively “Grantor Parties”) in connection with the design, operation, or maintenance of the POPA Open Space or performance or failure to perform Grantor’s obligations under this Agreement. Grantor's indemnity obligations under this Section 19 shall not extend to Claims to the extent occasioned by the gross negligence or willful misconduct of a City Party.
Notwithstanding the foregoing sentence, Grantor shall be required to defend the City Parties against any and all Claims, regardless of the extent to which (or if at all) a City Party contributed or is alleged or found to have caused or contributed to such Claims. Grantor's indemnity obligations shall apply regardless of whether any City Party insurance policies, self-insurance or joint self-insurance has been determined to be applicable to such Claims and regardless of whether or not City has prepared, supplied or approved of plans and specifications for maintenance, repair or replacement of the POPA Open Space Improvements.
20. Insurance.
a. Grantor shall obtain and continuously maintain insurance against claims for injuries to persons or damage to property which may arise out of any manner including (a) any injury to or death of any person or damage to or destruction of any property occurring in, on or about the POPA Open Space, or any part thereof, whether such injury, death, damage or destruction is caused by the person or property of the Grantor, representatives, employees or subcontractors. The insurance carrier is required to maintain an A.M. Best rating of not less than “A-:VII”.
b. Coverages and Limits. Grantor, at its sole expense, shall continuously maintain the types of coverages and minimum limits indicated below, unless otherwise approved by City in writing. These minimum amounts of coverage will not constitute any limitations or cap on Grantor's indemnification obligations under this Agreement.
1. Commercial General Liability Insurance. Grantor shall maintain occurrence based coverage with limits not less than $2,000,000 per occurrence. If the submitted policies contain aggregate limits, such limits will apply separately to the services, project, or location that is the subject of this Agreement or the aggregate will be twice the required per occurrence limit. The Commercial General Liability insurance policy shall be endorsed to name the City, its officers, agents, employees and volunteers as additional insureds, and to state that the insurance will be primary and not contribute with any insurance or self-insurance maintained by the City.
2. Business Automobile Liability Insurance. Grantor shall maintain coverage with limits not less than $1,000,000 per each accident for owned, hired and non-owned automobiles.
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Exhibit F – Page 10
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3. Workers' Compensation and Employer's Liability Insurance.
Grantor shall maintain coverage as required by the California Labor Code and Employer’s Liability limits with limits not less than $1,000,000 per each accident for bodily injury or disease. The Worker’s Compensation policy shall contain an endorsement stating that the insurer waives any right to subrogation against the City, its officers, agents, employees, and volunteers.
21. Notices. Any notices required or permitted hereunder shall be in writing and shall be served on the parties at the addresses set forth below. Each such notice shall be either sent by:
(a) overnight delivery using a nationally recognized overnight courier, in which case notice shall be deemed delivered upon receipt or refusal of delivery; (b) by sending the same to such Party by registered or certified mail, return receipt requested, with postage prepaid, in which case notice shall be deemed delivered upon receipt or refuse of delivery; or (c) personal delivery, in which case notice shall be deemed delivered upon receipt or refusal of delivery. A party’s address may be changed by written notice to the other parties, provided, however, that no notice of a change of address shall be effective until actual receipt of such notice. Notice given by counsel shall be deemed given by the party represented by such counsel.
To City: City of San Carlos
600 Elm Street
San Carlos, CA 94070
Attn: City Manager
With copies to: City of San Carlos
600 Elm Street
San Carlos, CA 94070
Attn: City Attorney
City of San Carlos
600 Elm Street
San Carlos, CA 94070
Attn: CDD Director
To Grantor: 642 Quarry Owner LLC
Attn: Cyrus Sanandaji
160 Pacific Avenue, Suite 204
San Francisco, CA 94111
[email protected]
[email protected]
With a copy to: Reuben, Junius & Rose LLP
Attn: Matthew D. Visick
One Bush Street, Suite 600
San Francisco, CA 94104
[email protected]
22. Mortgagee Protection and Subordination. No violation of this Agreement by, or enforcement of this Agreement against, a party hereto, shall impair, defeat, eliminate, or render invalid the lien of any Mortgage (defined below), but this Agreement shall be enforceable against any party who has acquired its title by foreclosure, trustee’s sale, voluntary conveyance,
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Exhibit F – Page 11
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or otherwise. “Mortgage” means any mortgage, deed of trust, or other security instrument given in good faith and for value which constitutes a mortgage lien on all or any portion of the Property. “Mortgagee” means the holder from time to time of a Mortgage. In the event any Mortgage is foreclosed, Grantor shall remain liable for any defaults existing at the time of foreclosure, and the successor in title to Grantor following foreclosure shall be responsible to the extent necessary to bring the POPA Open Space and the POPA Open Space Improvements into current compliance with Grantor’s obligations under this Agreement. Grantor shall cause the Mortgagee of any Mortgage recorded against the POPA Open Space as of the recordation date hereof to subordinate the lien of its Mortgage to this Agreement within sixty (60) days following the effective date of this Agreement, or as soon thereafter as is reasonably practicable, with the form of subordination agreement substantially as set forth on the Lender Consent and Subordination page immediately following the signature page hereof, or such other form as is reasonably approved by the City Attorney.
23. Miscellaneous.
a. Captions. The captions of this Agreement are inserted only as a matter of convenience and for reference. They do not define, limit, or describe the scope or intent of this Agreement and they shall not affect the interpretation hereof. b. Exhibits and Recitals. The Recitals above and each of the exhibits attached hereto are incorporated herein by reference.
c. Entire Agreement. This Agreement, together with the Development Agreement and the Project Approvals represent the entire understanding of the parties as to those matters contained herein. No prior or other understanding shall be of any force or effect with respect to those matters covered herein.
d. Amendment. This Agreement may be amended only by an instrument in writing executed by the parties hereto or their successors and assigns and only with the prior written consent of each party.
e. Governing Law. This Agreement shall be construed and governed in accordance with the laws of the State of California, without regard to conflict of law principles. f. No Partnership, Co-venture, or Principal-Agent Relationship. Nothing in this Agreement is intended to or does establish the parties hereto as partners, coventurers, or principal and agent with one another.
g. Severability. If any term, provision, condition or covenant of this Agreement or its application to any party or circumstances shall be held, to any extent, invalid or unenforceable, the remainder of this Agreement, or the application of the term, provision, condition or covenant to persons or circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected, and shall be valid and enforceable to the fullest extent by law.
h. Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original, and all of which together shall constitute one and the same instrument.
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Exhibit F – Page 12
4856-8447-6239 v20
IN WITNESS WHEREOF, the parties hereto have duly executed this instrument as of the day and year first above written.
“CITY”:
CITY OF SAN CARLOS,
a California municipal corporation
By:
City Manager
[signature must be notarized]
_______________
Printed Name
“GRANTOR”:
_________________________________,
a _______________________ company
[signature must be notarized]
By:
Printed Name
Title:
APPROVED AS TO CONTENT:
By: _________________________
Print Name: _________________
Its: Community Development Director
APPROVED AS TO FORM:
By: ____________________
Print Name: _________________
Its: City Attorney
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4856-8447-6239 v20
Recording Requested by and
When Recorded Return to:
City of San Carlos
600 Elm Street
San Carlos, CA 94070
Attention: City Clerk
Exempt from Recording Fees per Govt. Code §§ 6103 and 27383 Space above This Line for Recorder's Use Only
SUBORDINATION AND CONSENT OF LENDER
[Lender] , a _____________________, with an office at ____________________, __________________, _______________, Attention: ____________, and its successors and assigns (“Beneficiary”), is the beneficiary under that certain [Deed of Trust] , executed by [Trustor] , a _____________________, as Trustor, dated as of __________________, 20__ and recorded on __________________, 20__ in the Official Records of Santa Clara County, California (the “Official Records”) as Document No. ___________________ (the “Deed of Trust”).
The Deed of Trust encumbers the real property described as “Grantor’s Property” in the Covenants and Agreements Relating to Public Access and Open Space (the “Agreement”) between the City of San Carlos and Trustor dated _______________, 20__ and recorded in the Official Records of San Mateo County on __________________, 20__ as Instrument No. ________. As the beneficiary under said Deed of Trust, Beneficiary hereby consents to execution and recordation of the Agreement, and agrees that Beneficiary’s interests in Grantor’s Property and rights under the Deed of Trust shall be subject and subordinate to the Agreement.
Dated ___________________, 20__
[Lender],
a ________________
By:
Name:
Title:
[Signature must be notarized.
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4856-8447-6239 v20 Exhibit F – Page A-1
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
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4856-8447-6239 v20 Exhibit F – Page B-1
EXHIBIT B
LEGAL DESCRIPTION AND PLAT OF POPA OPEN SPACE
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4856-8447-6239 v20
EXHIBIT C
POPA OPEN SPACE DESIGN
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CITY COUNCIL
STAFF REPORT
MEETING DATE: August 14, 2023
ITEM TITLE: Consideration of Adopting a Resolution Approving the Appropriation of $306,000 in Fiscal Year 2023-24 from the Equipment Replacement Fund 0010 (Fund 10); Authorizing the City Manager to Execute an Agreement for the Purchase of Five Ford Lightning Electric Vehicle (EV) Trucks from Towne Ford in the amount of $390,125.15; and Authorizing a Contingency Budget up to $69,874.85 for the Installation of Truck Specialty Maintenance Equipment and the Requisite Charging Equipment.
RECOMMENDATION:
Staff recommends that the City Council adopt a Resolution approving the appropriation of $306,100 in Fiscal Year (“FY”) 2023-24 from the Equipment Replacement Fund 0010 (Fund 10); authorizing the City Manager to execute an agreement for the purchase of five Ford Lightning Electric Vehicle (EV) trucks from Towne Ford in the amount of $390,125.15; and authorizing a contingency budget up to $69,874.85 for the installation of truck specialty maintenance equipment and the requisite charging equipment.
FISCAL IMPLICATIONS:
The Adopted FY 2023-24 Equipment Replacement Fund Budget includes funding for vehicle replacement purchases in the amount of $153,900. Approval of this Resolution will require an additional budget appropriation in the amount of $306,100 from the Fund 10 Fund Balance. There are sufficient funds available to accommodate this request.
Towne Ford Purchase Agreement $390,125.15
Estimated Installation of Chargers 34,385.00
Specialty Maintenance Equipment 35,489.85
Total Funds Needed $457,010.50
FY 2023-24 Adopted Budget $153,900.00
Additional Funds Needed 306,100.00
Revised Budget $460,000.00
BACKGROUND:
This item is coming before the City Council for approval based on the City of San Carlos Municipal Code requirements. Under Chapter 3.12 Purchasing of City Supplies and Services, any contracts (including amendments) less than $75,000 can be approved by the City Manager under his
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signing authority, but those greater than $75,000 must be approved by the City Council. The total cost of this agreement is above the City Manager’s signing authority, requiring approval by City Council.
The Equipment Replacement Fund is used for the anticipated replacement of general equipment and inventory needs. Items included in this fund are vehicles, park equipment, computers, and networking equipment. The timing of these replacements can vary based on usage and general maintenance. Two of the five vehicles were originally scheduled to be replaced in FY 2023-24 with the other three in FY 2024-25.
The vehicles identified to be replaced include the following:
ID # VIN # MAKE MODEL DESCRIPTION MODEL/YR Replace / Scheduled Year 124V 1GCEC14VX5Z230804 CHEVY 1500 TRAFFIC PICKUP 2005 2024 Fund 10 168V 1GCEC14V85Z232096 CHEVY 1500 B.M. PICKUP 2005 2024 Fund 10 185V 1FTYR14EX9PA00483 FORD RANGER LIGHT PICKUP 2009 2025 Fund 10 186V 1FTYR14E19PA00484 FORD RANGER LIGHT PICKUP 2009 2025 Fund 10 187V 1FTYR14E89PA00482 FORD RANGER LIGHT PICKUP 2009 2025 Fund 10 ANALYSIS:
The Ford Lightning trucks are a popular governmental agency maintenance vehicle. The trucks meet work truck specifications and enable agencies to move towards an EV platform and away from internal combustion engines.
Towne Ford has five Ford Lightning trucks available and has offered the City of San Carlos the opportunity to purchase all five of these vehicles. The trucks meet the City’s standard maintenance truck specifications and have the Pro Power Pack, which will allow the City to power our pumps, signals, and other equipment during a PG&E power outages and other emergencies.
The vehicle quotes from Towne Ford have been supplied under the Sourcewell Contract 091521.NAF and the Government Concession for 2023 Lightnings for State competitive bidding which complies with the requirement of the Municipal Code. Staff also reached out to three other Ford dealerships in the Bay Area and in Northern California.
The three dealerships provided quotes for a 2023 Ford Lighting EV Pro Package truck ranging between $69,440 to $69,894. With tax and delivery fees, the quotes range between $76,167 to $76,621.
Towne Ford has the five trucks on-site for immediate delivery whereas the other three dealerships do not have any vehicles ready to ship. As the 2023 model year has closed, these dealers will not be placing any more orders for the 2023 model year and they are waiting for the 2024 model period to open. If the City places an order for a 2024 model, the earliest that we could take delivery is in 2025.
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To ensure that there is adequate power available to charge the five trucks, staff consulted with an electrical contractor to assess the power system at the Corporation Yard. Sufficient power is available, and staff is continuing to gather competitive quotes for the installation of the charging equipment for the trucks.
Staff recommends purchasing the five Ford Lightning EV trucks for the following reasons:
• The purchase would initiate the City’s fleet’s transition to an EV platform per the City Council’s direction.
• The five trucks at Towne Ford are on-site at the dealership and available for immediate delivery. Because the City is not currently on Ford’s waiting list to receive a Lightning truck in 2023 or 2024, the earliest that the City could receive shipment is in 2025. • The purchase would be consistent with Strategy 20 in the Climate Mitigation and Adaptation Plan, which encourages transition of the City’s fleet to zero emission vehicles or low carbon fuels where feasible.
• 75% of the City’s existing fleet is comprised of Ford vehicles which helps with servicing, parts, and repairs.
ALTERNATIVES:
The alternatives available to the City Council include:
1. Adopt a Resolution approving the appropriation of $306,100 in Fiscal Year 2023-24 from the Equipment Replacement Fund 0010 (Fund 10); authorizing the City Manager to execute an agreement for the purchase of five Ford Lightning Electric Vehicle (EV) trucks from Towne Ford in the amount of $390,125.15; and authorizing a contingency budget up to $69,874.85 for the installation of truck specialty maintenance equipment and the requisite charging equipment; or
2. Do not adopt the Resolution; or
3. Provide staff with alternative direction.
Respectfully submitted by:
Steven Machida, Public Works Director
Approved for submission by:
_______________________
Jeff Maltbie, City Manager
ATTACHMENT(S):
1. Resolution
2. Towne Ford Quote
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RESOLUTION NO. 2023 – ____
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN CARLOS APPROVING THE APPROPRIATION OF $306,000 IN FISCAL YEAR 2023-24 FROM THE EQUIPMENT REPLACEMENT FUND 0010 (FUND 10); AUTHORIZING THE CITY MANAGER
TO EXECUTE AN AGREEMENT FOR THE PURCHASE OF FIVE FORD LIGHTNING
ELECTRIC VEHICLE (EV) TRUCKS FROM TOWNE FORD IN THE AMOUNT OF $390,125.15; AND AUTHORIZING A CONTINGENCY BUDGET UP TO $69,874.85 FOR THE
INSTALLATION OF TRUCK SPECIALTY MAINTENANCE EQUIPMENT AND THE REQUISITE CHARGING EQUIPMENT.
WHEREAS, Ford Lightning trucks are a popular governmental agency maintenance vehicle that meet work truck specifications and enable agencies to move towards an EV platform and away from internal combustion engines; and
WHEREAS, the Equipment Replacement Fund is used for the anticipated replacement of general equipment and inventory needs including vehicles, park equipment, computers, and networking equipment; and
WHEREAS, two of five City vehicles were originally scheduled to be replaced in Fiscal Year (“FY”) 2023-24, with the other three in FY 2024-25; and WHEREAS, the vehicle quotes have been supplied under the Sourcewell Contract 091521.NAF and the Government Concession for 2023 Lightnings for competitive bidding; and WHEREAS, staff also reached out to three other Ford dealerships in the Bay Area and in Northern California; and
WHEREAS, Towne Ford has the five trucks on-site for immediate delivery and the three other dealerships do not have any vehicles ready to ship; and WHEREAS, the purchase price for all five trucks is $390,125.15; and WHEREAS, the cost to install the EV chargers at the Corporation Yard is estimated to be $34,385; and
WHEREAS, the total cost of the specialty maintenance equipment for all five trucks is estimated to be $32.500; and
WHEREAS, the 2023 model year has closed so dealers will not place any more orders for 2023 and are waiting for the 2024 model period to open; and WHEREAS, if the City places an order for a 2024 model, the earliest that we could take delivery is in 2025; and
WHEREAS, the FY 2023-24 Equipment Replacement Fund (Fund 10) Budget includes funding for vehicle replacement purchases in the amount of $153.900; and WHEREAS, an approval of this Resolution will require an additional appropriation in the amount of $306,100 from the Fund 10 Fund Balance; and
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WHEREAS, staff recommends that the City purchase the five Ford Lightning EV trucks for the following reasons:
• The purchase would initiate the City’s fleet’s transition to an EV platform per the City Council’s direction.
• The five trucks at Towne Ford are on-site at the dealership and available for immediate delivery. Because the City is not currently on Ford’s waiting list to receive a Lightning truck in 2023 or 2024, the earliest that the City could receive shipment is in 2025. • The purchase would be consistent with Strategy 20 in the Climate Mitigation and Adaptation Plan, which encourages transition of the City’s fleet to zero emission vehicles or low carbon fuels where feasible.
• 75% of the City’s existing fleet is comprised of Ford vehicles which helps with servicing, parts, and repairs.
NOW, THEREFORE BE IT RESOLVED, that the San Carlos City Council appropriates $306,000 in Fiscal Year 2023-24 from the Equipment Replacement Fund 0010 (Fund 10); and authorizes the City Manager to execute an agreement for the purchase of five Ford Lightning Electric Vehicle (EV) trucks from Towne Ford in the amount of $390,125.15; and authorizes a contingency budget up to $69,874.85 for the installation of truck specialty maintenance equipment and the charging equipment.
* * * * *
I, Crystal Mui, hereby certify that the foregoing Resolution was duly and regularly passed and adopted by the City Council of the City of San Carlos at a scheduled meeting thereof held on the 14 day of August 2023, by the following vote:
AYES, COUNCILMEMBERS: ___________________________________________ NOES, COUNCILMEMBERS: ___________________________________________ ABSENT, COUNCILMEMBERS: ___________________________________________ ________________________________
CITY CLERK of the City of San Carlos
APPROVED:
___________________________
MAYOR of the City of San Carlos
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