RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
*Developer Name/Entity*
*Developer Address*
*Developer Address*
Attention: *Developer Contact if req*
Developer
Eng Div File # _____________
This Space For Recorder’s Use Only
ENCROACHMENT AND MAINTENANCE AGREEMENT BETWEEN THE CITY OF SOUTH SAN FRANCISCO AND SOUTHLINE BUILDING 1 OWNER LLC
THIS ENCROACHMENT AND MAINTENANCE AGREEMENT (“Agreement”) is entered into as of this ______ day of ______________, 2023 (“Effective Date”), by and between Southline building 1 owner LLC, a Delaware limited liability company (“Developer”), and CITY OF SOUTH SAN FRANCISCO, a municipal corporation (“City”), with reference to the facts set forth in the Recitals below.
Recitals
WHEREAS, Developer is the owner of certain real property consisting of approximately 9 acres in the City of South San Francisco, County of San Mateo, State of California, as more particularly described in Exhibit A attached hereto (“Property”); and WHEREAS, on July 13, 2022, City Council of the City of South San Francisco adopted, among other approvals, Resolution No. 117-2022, approving entitlements for Phase 1 of the Southline Development Project (“Project”) on the Property, including a Vesting Tentative Map which will resubdivide the Property following approval and recordation of one or more final map(s) in phases to facilitate the Project, subject to certain conditions of approval (“Conditions of Approval”); and WHEREAS, Developer’s predecessor in interest and City have previously entered into that certain Development Agreement related to the development of the “Project”, as approved by the City of South San Francisco City Council by Ordinance No. 1639-2022 on July 27, 2022, and recorded on September 2, 2022, as Document No. 2022-064815, San Mateo County Official Records, and as subsequently assigned pursuant to that certain Partial Assignment and Assumption Agreement, recorded on December 23, 2022, as Document No. 2022-087653, San Mateo County Official Records, to grant certain development rights and to facilitate the Project; and WHEREAS, The City has the authority to regulate the terms and conditions for the use of the surface, the air space above the surface, and the area below the surface of the public streets, roads, sidewalks, lanes, courts, ways, alleys, and boulevards, including, without limitation, all public utility easements and public service easements as the same now or may thereafter exist that are under the jurisdiction of the City (“Public Right-of-Way”) for the construction, installation and maintenance of private buildings and improvements.
WHEREAS, The Conditions of Approval obligate Developer to install and maintain certain improvements constructed as a part of the Project, consisting of: landscape, irrigation, and related features (“Project Improvements” or “Improvements”), which are located within the Public Right-of-Way area (“Encroachment and Maintenance Area”), all as described more particularly in Exhibit B, attached hereto and incorporated herein. The City has approved the encroachment of the Project Improvements into the Encroachment and Maintenance Area (the “Encroachments”), subject to the terms and conditions of this Agreement.
WHEREAS, Developer has submitted to the City a Final Map entitled Final Map 22-0531, Southline Phase 1, in the City of South San Francisco, (“Final Map”) for the Property, which has been reviewed by the City Engineer for the City of South San Francisco and is being approved concurrently with this Agreement“”, and which Final Map dedicates to public use, (i) in fee, areas designated on the map as “Southline Avenue Right of Way (R/W) Dedication,” “South Maple Avenue Widening Dedication,” “Tanforan Avenue Cul-de-Sac Dedication,” and “Tanforan Avenue-Dollar Avenue Widening Dedication”; (ii) a public storm drain easement across that area designated on the map as “PSDE”; (iii) traffic signal easements “TSE” at the proposed Southline Avenue intersection in the center of the Project site for City owned and maintained traffic signal facilities, and (iv) easements for public utilities across those areas designated on the map as “PUE”; and WHEREAS, Developer recognizes that the City’s approval of the Final Map is based on the Developer’s commitment to the long-term maintenance, repair, care and, if and when necessary, replacement of the Improvements, and that the Final Map would not have been approved without the assurance that this Agreement would be executed by the Developer.
WHEREAS, The parties desire to enter into this Agreement to set forth the terms and conditions upon which Developer will maintain the Project Improvements and upon which City consents to the Encroachments.
NOW, THEREFORE, in consideration of the mutual covenants set forth herein and other good and valuable consideration, the parties agree as follows:
AGREEMENT
Maintenance Obligations. Developer shall, at its sole cost and expense, construct, install, maintain and locate the Project Improvements located within the Encroachment and Maintenance Area in accordance with the Conditions of Approval and the Development Agreement (the “Maintenance Obligations”). As a part of its Maintenance Obligations, Developer shall regularly inspect Improvements; provide appropriate landscape maintenance including irrigation, trimming, mowing, and watering; clean-up maintenance; utility maintenance; and undertake any other appropriate or necessary maintenance tasks with respect to the Improvements in a manner to maintain the Improvements in clean, safe, and functioning condition, and in accordance with the custom and practice generally applicable to public rights-of-way within the City of South San Francisco, all in conformance with applicable local, state and federal laws.
Consent to Encroachments. City hereby consents to the existence of the Encroachments within the Encroachment and Maintenance Area, subject to the terms and conditions of this Agreement.
Use and Maintenance of Encroachments. Developer and City hereby agree that so long as this Agreement remains in effect, Developer may use, maintain, repair, replace and/or remove the Encroachments located within the Encroachment and Maintenance Area. Developer shall not construct or add any improvements in the Encroachment and Maintenance Area other than the Encroachments, and any necessary repair and replacement of the Encroachments, without the City’s prior express written consent, which shall not be unreasonably withheld, conditioned or delayed, provided that the work complies with all applicable laws and Developer obtains or causes to be obtained all required permits.
City’s Right to Perform Maintenance; Remedies. If Developer does not repair, periodically inspect, maintain, care for and, if and when necessary, replace the Improvements on and about the Property in the manner set forth herein, the City shall have the right to maintain, repair, periodically inspect, care for, and replace such Improvements, or to contract for the correction of such deficiencies, after written notice to Developer. Prior to taking any such remedial action, the City agrees to provide Developer with thirty (30) days’ written notice, or reasonable notice as much as feasible during an emergency threatening public health or safety, during which Developer shall have the opportunity to remedy or commence to remedy the underlying issue. The City may also pursue any and all other remedies available in law or equity in the event of a breach of the Developer’s obligations and agreements set forth herein. Notwithstanding the foregoing, nothing in this section shall be construed, either expressly or by implication, as indicating an intention of the City to exercise dominion or control over the Improvements.
Damage to Facilities in Encroachment and Maintenance Area. Developer shall be responsible for (i) any damage to City street pavements, drainage systems, other City or public facilities, existing utilities, curbs, gutters, sidewalks caused by Developer’s installation, maintenance, repair or removal of the Project Improvements, (ii) costs for issuance of necessary governmental approvals, applicable permits and inspection of the Project Improvements, and (iii) repair, replacement and restoration in kind of damaged Project Improvements (other than to the extent such damage is caused by the City, its employees, officers or agents), in each case, at its sole expense. Developer shall notify all utilities of any damage caused by Developer’s installation, maintenance, repair or removal of the Project Improvements. Developer shall be responsible to all utilities for any damage caused to facilities owned by utilities caused by Developer’s installation, maintenance, repair or removal of its Developer Project Improvements.
If the Encroachment and Maintenance Area to be used by Developer for the installation of Project Improvements has pre-existing installation(s) placed in the said Encroachment and Maintenance Area, Developer shall assume the responsibility to verify the location of the pre-existing installation and notify the City and any third party with jurisdiction over such installations of Developer’s proposed installation of Improvements. The reasonable and documented cost of any work required by such third party of City to provide adequate space or required clearance to accommodate Developer’s installation of the Project Improvements in the Encroachment and Maintenance Area shall be borne solely by Developer Records and Field Locations. Developer shall maintain accurate maps and improvement plans of the Encroachments and Project Improvements. Developer shall submit to the City at the conclusion of installation of the Project Improvements copies of all maps accurately depicting the actual location of the Project Improvements as built. Developer shall, upon written demand of the Engineering and Transportation Department Director, deliver to the office of the Engineering Division free of charge, and to other third parties interested in performing work within the Encroachment and Maintenance Area for a reasonable charge upon request, within thirty (30) days after such demand, such maps and plans as may be required to show in detail the location, depth, and description of all Encroachments installed within said Encroachment and Maintenance Area.
Hold Harmless and Indemnification. Developer, jointly and severally, for itself, its successors, agents, contractors and employees, agrees to indemnify, defend (with mutually agreeable counsel as described below), and hold harmless City, its officers, employees, and authorized agents (each a “City Indemnified Party”) from and against any and all claims, demands, losses, damages, liabilities, fines, penalties, charges, administrative and judicial proceedings and orders, judgments, remedial actions of any kind, and all costs and cleanup actions of any kind, all costs and expenses incurred in connection therewith, including, without limitation, reasonable attorneys’ fees and costs of defense (collectively, the “Losses”) to the extent associated with the Encroachments and/or resulting from the activities of Developer described in this Agreement, except to the extent arising from the City’s or any City Indemnified Party’s willful misconduct or grossly negligent acts or omissions. The aforementioned indemnity shall apply regardless of whether or not the City has prepared, supplied or approved plans and/or specifications for the Improvements and regardless of whether any insurance required under this Agreement is applicable to any Losses. City and Developer shall use best efforts to select mutually agreeable legal counsel to defend such claims. In the event City and Developer are unable to select mutually agreement legal counsel to defend such a claim, each party may select its own legal counsel and Developer shall pay its and City’s reasonable attorneys’ fees and costs.
Insurance. Developer shall ensure that all contractors performing work on the Encroachments shall procure and maintain for the duration of this Agreement “occurrence coverage” insurance against claims for injuries to persons or damages to property which may arise from or in connection with the Project Improvements. a. Minimum Scope of Insurance. Coverage shall be at least as broad as:
Insurance Services Office form number GL 0002 (Ed. 1/73) covering comprehensive General Liability and Insurance Services Office form number GL 0404 covering Broad Form Comprehensive General Liability; or Insurance Services Office Commercial General Liability coverage (“occurrence” form CG 0001.) Workers’ Compensation insurance as required by the Labor Code of the State of California and Employers Liability Insurance. b. Minimum Limits of Insurance. Developer shall maintain limits no less than:
General Liability: $1,000,000 combined single limit per occurrence for bodily injury, personal injury and property damage. If commercial General Liability Insurance or other form with general aggregate limits is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
Automobile Liability: Comprehensive automobile liability insurance in an amount not less than $1,000,000 combined single limit per accident for bodily injury and property damage including coverage for owned and non-owned vehicles.
Workers’ Compensation and Employers Liability: Worker’s compensation limits as required by the Labor Code of the State of California and Employers Liability limits of $1,000,000 per accident.
Contractual Liability Insurance: Developer shall take out and maintain during the life of this Agreement an insurance policy in the amount of at least $2,000,000, insuring Developer against damages sustained as a result of its indemnity obligations under this Agreement.
Deductibles and Self–Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its officers, officials, employees and agents; or Developer shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses.
Other Insurance Provisions: The policies are to contain, or be endorsed to contain, the following provision:
General Liability Coverage and Automobile Liability Coverage.
The City, its officers, officials, employees and agents are to be covered as additional insureds as respects: liability arising out of activities performed by or on behalf of Developer; products and completed operations of Developer, premises owned, occupied or used by Developer. The coverage shall contain no special limitations on the scope of the protection afforded to the City, its officers, officials, employees or agents.
Each insurance policy shall contain the following endorsement language: “Notwithstanding any other provisions in this policy, the insurance afforded hereunder to the City of South San Francisco shall be primary as to any other insurance or reinsurance covering or available to the City of South San Francisco, and such other insurance or reinsurance shall not be required to contribute to any liability or loss until and unless the approximate limit of liability afforded hereunder is exhausted.” Developer’s insurance coverage shall be primary insurance as respects the City, its officers, officials, employees and agents. Any insurance or self-insurance maintained by the City, its officers, officials, employees or agents shall be excess of Developer’s insurance and shall not contribute with it.
Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its officers, officials, employees, or agents.
Developer’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer’s liability.
Worker’s Compensation and Employers Liability Coverage: The insurer shall agree to waive all rights of subrogation against the City, its officers, officials, employees and agents for losses arising from the Encroachments or Facilities.
All Coverages: Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, cancelled by either party, reduced in coverage or in limits except after thirty (30) days’ prior written notice by regular mail, has been given to the City.
Acceptability of Insurers: Insurance is to be placed with insurers with a Bests’ rating of no less than A:VII.
Verification of Coverage: Developer shall furnish City with certificates of insurance and with original endorsements effecting coverage required by this clause. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The certificates and endorsements are to be received and approved by the City before execution of this Agreement.
Subcontractors: Developer shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein.
The City’s Risk Manager may approve a variation in those insurance requirements upon a determination that the coverages, scope, limits and forms of such insurance are either not commercially available, ’ or that the City’s interests are otherwise fully protected.
Duration of Agreement. This Agreement shall continue in perpetuity unless and until an agreement terminating this Agreement is executed and acknowledged by the City and all of the respective legal owners of the Property, and such agreement is recorded in the Official Records of San Mateo County. In the event of any proposal by City, Developer, or a third party to redevelop any portion of the Improvement Area with different improvements, the parties agree to cooperate in good faith to modify or terminate this Agreement, as appropriate. Upon mutual termination of the Agreement, and upon written request by City, Developer (or the successor owner of the Property if Developer no longer owns the Property as provided in Section 11 below), at its own cost and expense, agrees to remove or, at City’s discretion, abandon in place, some or all of the Project Improvements and restore the Encroachment and Maintenance Area to substantially the same condition it was in prior to Developer’s installation of the Project Improvements. Should Developer or the successor owner of the Property, if Developer no longer owns the Property, in such event fail, neglect or refuse to make such removals or restoration within one hundred twenty (120) days of City’s written request, at the sole option of City, such removal and restoration may be performed by City at the expense of Developer or Developer’s successor if Developer no longer owns the Property.
Severability. If any one or more of the covenants or agreements or portions thereof provided in this Agreement shall be held by a court of competent jurisdiction in a final judicial action to be void, voidable or unenforceable, such covenant or covenants, such agreement or agreements, or such portions thereof shall be null and void and shall be deemed separable from the remaining covenants or agreements or portions thereof and shall in no way affect the validity or enforceability of the remaining portions of this Agreement.
Notices. All notices herein required shall be in writing, and delivered in person or sent by certified mail, postage prepaid, or by email (with original forwarded by regular U.S. Mail).
Notices required to be given to City shall be addressed as follows:
Attn: Engineering
City of South San Francisco
315 Maple Avenue
South San Francisco, CA 94080
Email: [email protected]
With a Copy to:
Meyers Nave
Attn: Sky Woodruff
1999 Harrison Street, 9th Floor Oakland, CA 94612
Phone: (510) 808-2000
Email: [email protected]
Notices required to be given to Developer shall be addressed as follows:
Southline Building 1 Owner LLC
c/o Lane Partners
Attn: Marcus Gilmour
644 Menlo Avenue, 2nd Floor Menlo Park, CA 94025
Phone: (650) 838-0100
Email: [email protected]
With a Copy to:
Coblentz Patch Duffy & Bass LLP
Attn: Megan Jennings
One Montgomery Street, Suite 3000
San Francisco, CA 94104
Phone: (415) 391-4800
Email: [email protected]
Any party may change such address by notice in writing to the other party and thereafter notices shall be addressed and transmitted to the new address.
Successors and Assigns. Each of the agreements, covenants and obligations of Developer and City, respectively, set forth in this Agreement shall be covenants that run with the land and shall be binding upon all successors of Developer and City, respectively, for the benefit of the owner of the other property and such owner’s successors in accordance with Section 1468 of the California Civil Code. This Agreement shall not be assignable by Developer without prior notice to and approval by City; provided, however, that Developer may assign the rights granted hereunder to a parent, successor, or subsidiary of Developer, now or hereinafter existing, by only providing written notice to City of such assignment. Notwithstanding any provision of this Agreement to the contrary, nothing contained herein shall be deemed to be a gift or dedication of any portion of the Encroachment and Maintenance Area to the general public or for the general public or for any public purpose whatsoever, and this Agreement shall be strictly limited to and for the purposes expressed in this Agreement.
Cooperation. If any additional documents are reasonably necessary to accomplish the express purposes of this Agreement, the parties hereto agree to cooperate reasonably and in good faith in the preparation of any such documents, and agree to promptly sign and deliver any such documents.
Entire Document/Modification. This Agreement constitutes the entire agreement between the parties hereto with respect to the Maintenance Obligations, Encroachments and the Encroachment and Maintenance Area, and supersedes as of the date hereof any prior agreement(s) between the parties, written or oral, concerning the subject matter of this Agreement. Any subsequent modification of this Agreement shall be in a writing signed by both parties or their respective successors in interest.
Invalidity and Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall continue in full force and effect and shall in no way be impaired or invalidated, and the parties agree to substitute for the invalid or unenforceable provision a valid and enforceable provision that most closely approximates the intent and effect of the invalid or unenforceable provision.
Liens Not Impaired. No breach of the covenants or terms of this Agreement or any enforcement thereof shall defeat or render invalid the lien of any mortgage or deed of trust made in good faith and for value, now or hereafter executed upon the Property or any portion thereof. None of the covenants or terms of this Agreement shall supersede or in any way reduce the security or affect the validity of any such mortgage or deed of trust; provided, however, that any such covenant or term shall be binding upon and effective against the owner of the Property or any portion thereof whose title to the Property or such portion thereof is acquired by foreclosure, trustee’s sale or otherwise.
Attorneys’ Fees. In the event of any controversy, claim or dispute arising out of this Agreement or any breach hereof, the prevailing party in any legal action shall be entitled to recover from the losing party its costs and expenses, including reasonable attorneys’ fees and costs.
Applicable Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without reference to principles of conflicts of law. All actions, proceedings, lawsuits, claims, and disputes shall be venued in the County of San Mateo, State of California.
Authority. Each person executing this Agreement on behalf of a party represents and warrants that such person is duly and validly authorized to do so on behalf of the entity it purports to bind and if such party is a partnership, corporation or trustee, that such partnership, corporation or trustee has full right and authority to enter into this Agreement and perform all of its obligations hereunder.
No Agency Relationship or Joint Venture. This Agreement does not establish any joint venture or partnership relationships between City and Developer. Neither Developer nor any of Developer’s agents, contractors or subcontractors are or shall be considered to be agents of City in connection with the performance of any of Developer’s obligations under this Agreement.
Counterparts. This Agreement may be executed in one or more counterparts, each of which shall, for all purposes, be deemed an original and all of such counterparts, taken together, shall constitute one and the same instrument. [signatures on following page]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date.
CITY:
DEVELOPER:
CITY OF SOUTH SAN FRANCISCO,
a municipal corporation
By:______________________________
Sharon Ranals
Interim City Manager
Southline Building 1 Owner LLC,
a Delaware limited liability company
By:_________________________________
Name:
Title:
Date: _______________________________
APPROVED AS TO FORM:
________________________
City Attorney
ATTEST:
________________________
City Clerk
EXHIBITS:
Exhibit A – Legal Description
Exhibit B – Encroachment and Maintenance Areas
ACKNOWLEDGMENTS
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
)
COUNTY OF )
On _____________________, before me, , a Notary Public personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) are/is subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
)
COUNTY OF )
On _____________________, before me, , a Notary Public personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) are/is subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
EXHIBIT “A”
Legal Description of Property
EXHIBIT “B”
Encroachment and Maintenance Area
[SEE ATTACHED]
- 1 -
1297\21\2483757.2
- 1 -
1297\21\2483757.2
019109.0001 4879-5720-4815.2 Exhibit “A”
019109.0001 4879-5720-4815.2 Exhibit “B”