AGREEMENT FOR CONSTRUCTION AND REIMBURSEMENT FOR
RELOCATING AND CONSTRUCTING SEWER IMPROVEMENTS
This Agreement for Construction and Reimbursement for Relocating and Constructing Sewer Improvements (“Agreement”) is entered into by and between the City of South San Francisco, a municipal corporation organized under the laws of the State of California (the "City"), and US 180 EL CAMINO OWNER, LLC, a Delaware limited liability company ("El Camino Owner"), this _____ day of ___________, 2022 (“Effective Date”), with reference to the facts set forth in the Recitals below.
RECITALS
A. El Camino Owner is the owner of a 14.5-acre parcel located at 180 El Camino Real, South San Francisco, with frontages on El Camino Real and South Spruce Avenue. The site is surrounded by various existing commercial and single-family residential uses to the north, east and west, and by proposed multi-family residential developments to the south.
B. El Camino Owner is currently undertaking a project where it proposes to subdivide the 14.5- acre site into one (1) 3.29-acre development parcel (“Project Site”) and one (1) 11.21-acre remainder parcel (“Remainder Parcel”), and to construct approximately 74,600 square feet of commercial development including a new Safeway store and ancillary commercial uses on the 3.29-acre parcel (collectively, “Project”).
C. Due to the location and layout of the Project Site, the construction of the new Safeway store building would require El Camino Owner to relocate an existing 10-inch underground sewer main and line, currently owned and maintained by the City and that is situated across the entire site (“Existing Sewer Line”), to the Project’s future internal drive aisle location.
Specifically, El Camino Owner is proposing to re-locate the Existing Sewer Line to the other side of the Project Site in closer proximity to Noor Avenue, all as depicted more particularly in Exhibit A, attached hereto and incorporated herein.
D. Additionally, in order to accommodate the additional flow that would result from the Project’s commercial and ancillary uses, it would be necessary for El Camino Owner to upsize the Existing Sewer Line from 10-inch to a 15-inch pipe.
E. The Existing Sewer Line has been identified as requiring upsizing and other realignment work as a part of the City’s Capital Improvements Program (CIP). The City anticipated to upsize the Existing Sewer Line to a 12-inch pipe as contemplated by the CIP.
F. Because of the close proximity to the Project Site and the need to upgrade the sewer facilities adjacent to the Project Site to accommodate the additional flow impact resulting from the Project, the City has also requested that El Camino Owner extend the upsizing of the Existing Sewer Line to a manhole located on Huntington Avenue, as described further below and more particularly in Exhibit A (“Huntington Avenue Realignment”).
G. Collectively, the sewer improvement work that El Camino Owner would be performing in
connection with the Project would be as follows, which are described more particularly in Exhibit B (collectively, “Sewer Improvements”):
1. Existing Sewer Line
a.Upsizing the Existing Sewer Line to a 15-inch line; and b.Remove certain portions of the Existing Sewer Line (i.e., foundations), as necessary to complete the foregoing work.
2. Huntington Avenue Realignment
a. Extend the Existing Sewer Line from the Project Site to Huntington Avenue and upsize that extended segment from its original 10-inch size to a 12-inch line;
b. Upsizing the segment of sewer line at Huntington Avenue from 8-inch to 12- inch; and
c. Design and potholing work for the foregoing sewer work at Huntington Avenue.
H. El Camino Owner agrees to construct the Sewer Improvements so long as El Camino Owner is reimbursed for the work equal to:
1. The portion of the estimated cost of the City’s financial responsibility covering the upsizing of the Existing Sewer Line to a 12-inch line; plus
2. The actual reasonable costs of the Huntington Avenue Realignment as described in Recital G(2)(a)-(c).) Collectively, the amounts in this Recital H (1) and (2) are hereinafter referred to as the “Reimbursement”. (such amounts in 1 and 2 above, collectively, the “Reimbursement”).
As described further below, the Reimbursement reimbursement payable to El Camino Owner shall be granted to El Camino Owner through a credit in the full amount of the unpaidthe Reimbursement to be applied to the Sewer Capacity Fee due and payable by El Camino Owner for the Project and all future developments that may be proposed and permitted at the Remainder Parcel, at the time of their respective building permit issuances (“Reimbursement”)..
I. The City is agreeable to El Camino Owner constructing the proposed Sewer Improvements subject to El Camino Owner submittal of plans and cost estimates and approval by the City thereof, and Reimbursement to El Camino Owner as referenced Item Recital H above and as set forth in Section 1 below. .
NOW, THEREFORE, in consideration of the mutual promises contained herein, the parties agree as follows:
AGREEMENT
1. Construction and Reimbursement for Sewer Improvements. The City approves El
Camino Owner's proposed construction of the Sewer Improvements and agrees to Reimburse El Camino Owner as follows:
a) As authorized by this Agreement, El Camino Owner agrees to submit plans and specifications prior to construction of the Sewer Improvements for approval by the City Engineer including approval for design. El Camino Owner agrees to construct the Sewer Improvements in accordance with the plans and specifications that have been approved by the City and complete the Sewer Improvements within one (1) year of the execution of this Agreement., subject to extension for matters outside the reasonable control of El Camino Owner that cannot be anticipated and mitigated with El Camino Owner’s due diligence. Upon completion of construction by El Camino Owner, the City shall have the right to inspect and accept the Sewer Improvements for compliance with the approved plans and specifications, which acceptance shall not be unreasonably withheld, as a condition of Reimbursement. b) City agrees to issue a Reimbursement to El Camino Owner, within thirty (30) days of the City's receipt of substantiating documentation from El Camino Owner and reasonable approval by the City of the completion thereof, demonstrating:
i. The amount of Sewer Capacity Fee due at the time of building permit issuance for the Project or for subsequent development(s) that have received Planning entitlements at the Remainder Parcel at a future date; and ii. The actual reasonable cost of completing the Sewer Improvements based on:
(1) the portion of the estimate cost of the City’s financial responsibility covering the upsizing of the Existing Sewer Line to a 12-inch line, plus (2) the actual reasonable costs of the Huntington Avenue Realignment work (the “Reimbursement Amount”).
The Reimbursement Amount, based on cost estimates previously approved by the City, is estimated to be approximately $869,768.00. Summary of the costs are shown on the table below:
Design Cost $52,080
Construction Cost $743,353
Construction Contingency (10%) $74,335
Reimbursement Amount $869,768
The Reimbursement Amount shall be drawn down by the amount of Sewer Capacity Fee that is due for the Project or any Planning-entitled future development at the Remainder Parcel, until the Reimbursement Amount is reduced to zero.
c) If City property is destroyed or damaged by reasons of El Camino Owner’s construction of the Sewer Improvements as authorized by this Agreement, El Camino Owner shall repair, replace, or pay for the repair or replacement, of such destroyed or
damaged property at its sole cost and expense.
2. Hold Harmless and Indemnification. To the fullest extent permitted by law, El Camino Owner agrees to indemnify, defend (with counsel reasonably acceptable to the City), and hold harmless the City of South San Francisco and its elected and appointed officers, employees, agents, contractors and consultants (collectively, the “City Indemnitees”) from and against any and all third party liability, loss, damage, claims, expenses and costs (including, without limitation, attorneys’ fees and costs of litigation) (collectively, “Liability”) of every nature to the extent arising out of or in connection with construction of the activities performedcarrying out the Sewer Improvements by or on behalf of or on behalf of SteelwaveEl Camino Owner as authorized by pursuant to this Agreement, except to the extent any such Liability arises out of or is is caused by the negligence or willful misconduct of the City Indemnitees.
3. No Relief of Other Obligations. This Agreement does not relieve El Camino Owner from complying with all generally applicable laws and regulations in the performance of this Agreement and constructing the Sewer Improvements. This Agreement also does not relieve El Camino Owner from obtaining all required entitlements, permits, authorizations, or other approvals for any other work proposed at the Project Site or at the Remainder Parcel in the future.
4. Insurance. El Camino Owner shall maintain, or ensure that its contractors or subcontractors maintain, during the life of this Agreement the following policies of insurance:
a) Worker’s Compensation and Employers’ Liability Insurance in the statutory coverage. b) Commercial General Liability Insurance: In an amount not less than ONE MILLION DOLLARS ($1,000,000) for injuries including, but not limited to, death to any one person and subject to the same limit for each person; in an amount not less than TWO MILLION DOLLARS ($2,000,000) combined single limit per occurrence for bodily injury, personal injury and property damage.
c) Automobile Liability (Code 1) Insurance: In an amount not less than ONE MILLION DOLLARS ($1,000,000) combined single limit per accident for bodily injury and property damage.
d) It is agreed that the insurance required hereunder shall be in an aggregate amount of not less than Two Million Dollars ($2,000,000) and shall be extended to include as additional insureds the City of South San Francisco, its officials, employees and agents, with respect to operations performed by El Camino Owner as described herein.
Evidence of the insurance described above shall be provided to City upon execution of this Agreement.
5. Default. In the event of default by El Camino Owner hereunder which is not cured following written notice and an opportunity to cure, the costs and expenses of City for which El Camino Owner shall be liable shall include but not be limited to the City’s costs of suit and reasonable attorney’s fees if the City is the prevailing party in any such suit.
6. Independent Contractor. El Camino Owner is an independent contractor and nothing
contained in this Agreement shall be construed as creating an employer/employee, joint venture, or principal/agent relationship between City and El Camino Owner.
7. Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue to be in full force and effect.
8. Term. This Agreement is effective upon execution unless otherwise modified in writing by mutual agreement of the parties.
9. Execution in Counterparts. This Agreement may be executed in counterparts and/or by facsimile or other electronic means, and when each party has signed and delivered at least one such counterpart, each counterpart shall be deemed an original, and, when taken together with other signed counterpart, shall constitute one Agreement, which shall be binding upon and effective as to all parties.
10. Entire Agreement. This Agreement represents the entire and integrated agreement between the parties. This Agreement may be modified or amended only by a subsequent written agreement signed by both parties.
11. Knowing and Voluntary Execution. Both parties to this Agreement have had the opportunity to be advised by and to have this Agreement reviewed by legal counsel of their choosing. [SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date written above.
CITY OF SOUTH SAN FRANCISCO
By: __________________________
Mike Futrell, City Manager
Attest:
__________________________
City Clerk
Approved as to form:
__________________________
City Attorney
[SIGNATURES CONTINUE ON NEXT PAGE]
US 180 El Camino Owner, LLC,
a Delaware limited liability company
By: US 180 El Camino Venture, LLC,
a Delaware limited liability company,
as sole member
By: US 180 El Camino Manager LLC,
a Delaware limited liability company,
as Administrative Manager
By: SW El Camino GP, LLC,
a Delaware limited liability company,
as Administrative Manager
By: SW El Camino Investments, LLC,
a Delaware limited liability company,
its managing member
By: SW El Camino Associates, LLC,
A Delaware limited liability company
its sole member
By: SteelWave, LLC,
a Delaware limited liability company,
its managing member
By:
Name:
Title:
Date:
Exhibit A
(Description of sewer realignment work)
Exhibit B
(Description of Sewer Improvements and Plans and Specifications) 5099936.3