AGREEMENT FOR CONSTRUCTION AND REIMBURSEMENT FOR
SEWER IMPROVEMENTS
(Southline Specific Plan Project)
This Agreement for Construction and Reimbursement for 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 SOUTHLINE BUILDING 1 OWNER LLC, a Delaware limited liability company ("Developer") (collectively "Parties"), this day of - 2023 ("Effective Date"), with reference to the facts set forth in the Recitals below.
RECITALS
A. Developer and its affiliates are the owners of certain real property consisting of approximately
12.38 acres in the City of South San Francisco, County of San Mateo, State of California, which comprises Phase 1 of the Southline Specific Plan Project ("Property"); and B. On July 13, 2022, the City Council of the City of South San Francisco adopted, among other approvals, Resolution No. 117-2022, approving entitlements for Phase i of the Southline Development Project (the "Project") on the Property, including a Vesting Tentative Map to 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
C. On February 22, 2023, City Council of the City of South San Francisco approved Final Map said Final Map and all related documents with the San Mateo County Recorder; and D. The Final Map 22-0531 has since been recorded in the San Mateo County Recorder's Office on August 2, 2023, in Book 144 of Maps, at Pages 71-80; E. Phase 1 of the Project requires the issuance of two Core & Shell Building Permits, one for Building 1 and another for Building 2 (together, the "Phase 1 Building Permits"), which, pursuant to the Conditions of Approval and the City's adopted Citywide Sewer Capacity Fee program (City Council Resolution 56-2017), require the Developer to pay the City approximately $695,000 in Sewer Capacity Fees; and
F. The Project will include construction activity that is proximate to an existing 24-inch underground sewer main, currently owned and maintained by the City and that is situated adjacent to Tanforan Avenue, extending from Dollar Avenue to Montgomery Avenue ("Existing Sewer Line"); and
G. The Existing Sewer Line was independently identified by the City in its Sanitary Sewer Master Plan as requiring upsizing as a part of the City's Capital Improvements Program ("CIP"). However, the City subsequently confirmed following further investigation that the Existing Sewer Line should instead be maintained at its current size and rehabilitated through cured-in-place-pipe lining without necessitating full replacement; and H. The Project does not trigger the need for any upsizing or relocation of the Existing Sewer Line, and the Conditions of Approval do not require any improvements related to the Existing Sewer Line, but is subject to the City's Sewer Capacity Fee requirement; and of the City, as described more particularly in Recital K and Exhibit A, subject to reimbursement by the City of all actual reasonable costs for completion of the Sewer Improvement work incurred by Developer ("Reimbursement Amount"), as further set forth in Section 1 of this Agreement; and
J. Given that Developer is already doing work in the vicinity of the Existing Sewer Line and is capable of performing the Sewer Improvements originally to be done by the City without needing additional mobilization that would otherwise by incurred by the City, there would be significant cost savings to the City and to the public arising from the cost efficiencies generated by having Developer perform the Sewer Improvements, and thus any competitive bidding for the Sewer Improvements would not produce an advantage nor would competitive bidding be desirable; and
K. Collectively, the Sewer Improvements to be performed by Developer would be as follows, as further set forth in Exhibit A
1. Install approximately three hundred (300) linear feet of cured-in-place-pipe lining within the Existing Sewer Line in the location shown in Exhibit A;
2. Seal all existing sanitary sewer manholes within the limits of the Sewer Improvements area; and
3. Implement bypass pumping to temporarily divert sewer flows during Sewer Improvement work.
L. City and Developer desire to enter into this Agreement to provide for Developer's installation of the Sewer Improvements, subject to Developer submitting plans and cost estimates, and approval by the City thereof, and payment of the Reimbursement Amount.
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 agrees that Developer shall construct the Sewer Improvements and agrees to reimburse Developer as follows:
a) As authorized by this Agreement, Developer agrees to submit Sewer Improvement plans and specifications and apply for an Encroachment Permit to construct the Sewer Improvements. The Sewer Improvement plans, specifications, and Encroachment Permit shall be approved by the City Engineer, prior to commencing construction of the Sewer Improvements. Developer agrees to construct the Sewer Improvements in accordance with the plans and specifications that have been approved by the City. b) Developer agrees to complete construction of the Sewer Improvements prior to issuance of the last Final Certificate of Occupancy approval of the Phase 1 Building Permits, subject to extension for matters outside the reasonable control of Developer and not due to Developer's actions or negligence.
c) During construction of the Sewer Improvements by Developer, the City shall conduct periodic inspections to confirm compliance with the approved plans and specifications.
d) Upon completion of construction of the Sewer Improvements, an inspector designated by the City ("City Inspector") shall perform a Final Inspection of the Sewer Improvements. Upon final approval by the City Inspector, the City Engineer, or her/his designee, shall issue a Certificate of Acceptance of the Sewer Improvements within thirty (30) days of final approval by the City Inspector. e) City shall issue payment for the Reimbursement to Developer, within sixty (60) calendar days of (i) the City Engineer's issuance of a Certificate of Acceptance, and (ii) Developer's delivery to the City of substantiating invoices and receipts demonstrating:
i. The amount of Sewer Capacity Fees paid-to-date to the City in connection with the Phase 1 Building Permits; and
ii. The Reimbursement Amount owed by the City, which is the actual reasonable cost of designing and constructing the Sewer Improvements.
1. The Reimbursement Amount, based on cost estimates previously approved by the City, is estimated to be approximately Three Hundred and Ninety-seven dollars ($397,000) as of the Effective Date of this Agreement. A summary of the costs is shown on the table below:
Design/Engineering Cost $25,000
Construction Cost $285,000
Public Works Inspection Cost $30,000
Construction Contingency (20%) $57,000
Approximate Reimbursement
Amount $397,000
2. Both Parties acknowledge that this Reimbursement Amount estimate provided above is intended as an approximation. The actual Reimbursement Amount shall include, without limitation, costs for (i) any changes in the work requested by the City in writing and (ii) any changes in the work resulting from unforeseen or conditions not known at the time of designing and constructing the Sewer Improvements, subject to notice and approval by the City in writing of said changes in work. However, Developer shall not be required to complete work on behalf of the City that would exceed Five Hundred and Ninety-Nine Thousand Dollars ($599,000).
f) If City property is destroyed or damaged by reasons of Developer's construction of the Sewer Improvements as authorized by this Agreement, Developer 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, Developer 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, authorized 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 for or in connection with personal injury (including, but not limited to, death or damage to property (both real and personal) (collectively, "Claims") to the extent arising out of or connected with the negligent act, error or omission of Developer, its agents, contractors, subcontractors, or employees in connection with the performance this Agreement, except to the extent any such Liability is caused by the each party may select its own legal counsel and Developer shall pay its and City's reasonable attorneys' fees and costs.
3. No Relief of Other Obligations. This Agreement does not relieve Developer 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 Developer from
obtaining all required entitlements, permits, authorizations, or other approvals for any other work proposed at the Property in the future.
4. Insurance. Developer 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) per occurrence for injuries including, but not limited to, death to any one person; in an amount not less than TWO MILLION DOLLARS ($2,000,000) in the aggregate 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 by Subsection (b) 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 authorized agents, with respect to operations performed by Developer 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 Developer hereunder which is not cured following written notice and an opportunity to cure, the costs and expenses of City for which Developer 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. Developer 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 Developer.
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 and terminates upon completion of all obligations as set forth in this Agreement, no later than the City's payment of the full Reimbursement Amount.
9. Assignment and Transfer. Developer may transfer or assign all or any portion of its interests, rights, or obligations under the Agreement to third parties acquiring an interest or estate in the Project or the Property or any portions thereof including, without limitation, purchasers or lessees of lots, parcels, or facilities, subject to obtaining City's prior written consent to the
assignment or transfer, if and to the extent that such consent is required pursuant to the Southline Development Agreement, recorded on September 2, 2022 as Document No. 2022-064815, San Mateo County Official Records ("Development Agreement"). For the avoidance of doubt, nothing in this Agreement shall be interpreted to impair or modify the rights, as set forth in the Development Agreement, of assignment and transfer with respect to the Project (which for purposes of clarity shall include any default under this Agreement and any other agreement entered into in furtherance of, or related to, the satisfaction of Developer's obligations under the Development Agreement within the cure period provided under any such agreement) or the Property.
10. 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.
11. 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.
12. 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,
a municipal corporation
By:
Sharon Ranals, City Manager
Attest:
City Clerk
Approved as to form:
City Attorney
DEVELOPER:
SOUTHLINE BUILDING 1 OWNER LLC,
By
Name:
N0-MADAEING PRINCiPAL
WISENSEASON RESEES
California All-Purpose Certificate of Acknowledgment
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 SAN MATEO S.S.
12/19/2023 before me. HAIDEE CASTRO BALUTA, NOTARY PUBLIC personally appeared SCOTT L. SMITHERS
who proved to me on the basis of satisfactory evidence to be the person(s) whose names) is/are 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. HAIDEE CASTRO BALUTA Notary Public - California
San Mateo County
Commission # 2335373
My Comm. Expires Oct 13, 2024
OPTIONAL INFORMATION
machment or
COCION
Description of Attached Document
The preceding Certificate of Acknowledgment is attached to a Method of Signer Identification document titled/for the purpose of
Proved to me on the basis of satisfactory evidence:
• forms) of identification • credible witnesses)
containing pages, and dated
Notarial event is detailed in notary journal on:
The signers) capacity or authority is/are as: Page #_ . Entry # • Individual(s)
• Attorney-in-fact Notary contact:
Corporate Officers)
Other
• Additional Signer ] Signer(s) Thumbprints(s)
Guardian/Conservator
• Partner - Limited/General
• Trustee(s)
Other:
representing:
Exhibit A
(Description of Sewer Improvements)
Approved Improvement Plans included with Encroachment Permit #E23-1337 on file with the City Public Works Engineering Division.
The general limits of the work is as shown below:
EXHIBIT A
Slip-Lining Limits
FOR INFORMATION ONLY
This document is for general informational
purposes only and shall not be distributed without
prior approval/consent from City of San Bruno. S LINDEN AVE Furthermore, we make no representation or
warranty of any kind, expressed or implied,
regarding the accuracy and completeness of the
information provided on this document
S MAPLE AVE DOLLAR AVE
290' 24° SS (segment #2162)
Dollar Ave. to Montgomery Ave.
HUNTINSTOP AVES
RAILROAD PL
ATLANTIC AVE
HON TINGT? ONTINGTO PRAVE
12200
Notes
5472848.1