-1 -
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
SSF East Grand Venture, LLC
c/o Trammell Crow Company
415 Mission Street, 45th Floor
San Francisco, CA 94105
Attn: Adam M. Voelker
Eng Div File # _____________
This Space For Recorder’s Use Only
IMPROVEMENT AGREEMENT
BETWEEN THE CITY OF SOUTH SAN FRANCISCO AND
SSF EAST GRAND VENTURE, LLC IN CONNECTION WITH
PARCEL MAP NO. 23-1147
This OFF-SITE IMPROVEMENT AGREEMENT (“Agreement”) is entered into as of this ______ day of ______________, 2024 (“Effective Date”), by and between SSF East Grand Venture, LLC, a Delaware limited liability company (together with its successors and assigns, "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 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 May 18, 2023, the Planning Commission of the City of South San Francisco adopted Resolution No. 2920-2023, approving entitlements for the 120 East Grand Ave.
R&D Project at the Property (the “Project”), including a Vesting Tentative Parcel Map to resubdivide property at 120 East Grand Avenue, following approval and recordation of the parcel map to facilitate the Project, and subject to certain conditions of approval (“Conditions of Approval”); and
WHEREAS, the Conditions of Approval require certain Public Improvements in the public right-of-way on East Grand Avenue and within a Public Access and Utility Easement on Sylvester Road, a privately-owned road referenced in the Conditions of Approval, and within Public Utility Easements on the project site. Said Public Improvements are described in the approved civil improvement plan sets (“Permit Plans”) associated with the following Encroachment and Building Permits to be issued by the City (“Permits”) and incorporated herein by this reference upon their issuance:
E23-1387, B23-0987 Sylvester Road Sewer Relocation
E23-0661, B23-1177 East Grand Avenue Offsite Improvements (collectively, the “Improvements”); and
-2 -
WHEREAS, Developer has presented to the City a Vesting Tentative Parcel Map for approval, hereinafter entitled Parcel Map No. 23-1147 (“Parcel Map”) which map dedicates to public use, various public easements on the private property; and WHEREAS, Developer has requested approval of said Parcel Map prior to the construction and completion of the required Improvements and utility connections, which are appurtenant to the Property designated in said Parcel Map, all in accordance with, and as required by, the plans and specifications for all or any of the improvements in, appurtenant to, or outside the limits of the Property; and
WHEREAS, the City wishes to ensure that the Improvements will be completed in a good workmanlike manner and in accordance with the Conditions of Approval and applicable law; and WHEREAS, Engineering Condition C-27 of the Conditions of Approval requires Developer to construct new curb, gutter, and sidewalk, along the Sylvester Road frontages of the Buildings 1, 2 and 3 parcels as a condition to the subject permit; and WHEREAS, Engineering Condition C-28 of the Conditions of Approval requires that Developer perform base repairs and provide a 2-inch grind and overlay (edge of pavement to edge of pavement) of the asphalt concrete pavement on Sylvester Road along the frontage of the Building 1 parcel as a condition to the subject permit; and WHEREAS, Developer separately will pursue or is pursuing construction and completion of the improvements described in Conditions C-27 and 28 as a condition to the subject permit along with other requirements of the Conditions of Approval, in addition to its obligations under this Agreement; and
WHEREAS, this Agreement is executed pursuant to the provisions of the Subdivision Map Act of the State of California and Title 19 of the South San Francisco Municipal Code.
NOW, THEREFORE, for and in consideration of the approval of the Parcel Map and of the acceptance of the dedications and easements for street and highway purposes and public facility and utility easements therein offered, excepting those dedicated to other agencies, and in order to ensure satisfactory performance by Developer and Developer’s obligations under the Subdivision Map Act and Title 19 of the Municipal Code the parties agree as follows:
AGREEMENT
1. Performance of Work. Developer shall, at its sole cost and expense, furnish or cause to be furnished, all labor supplies, equipment and materials, and do or cause to be done, in a good and workmanlike manner all of the Improvements as shown on the approved improvement plans associated with the above referenced Permits issued by the City. The cost of such Improvements and required items of work is estimated to be Two Million Five Hundred Fifty Thousand Four Hundred Fifty Six Dollars ($2,550,456.00). Developer shall also do all the work and shall, at its sole cost and expense, furnish all materials necessary in the opinion of the City Engineer to complete the Improvements in accordance with the plans and specifications.
All of the work is to be done at the places, and with the necessary materials, in the manner -3 -
and at the grades shown on the plans and specifications to be approved by the City Engineer. All work shall be done to the satisfaction of the City Engineer.
2. Time for Commencement and Performance. City hereby fixes the time for the commencement of the work to be done on or before January 31, 2025 (“Commencement Date”) (provided, however, if permits are not obtained by the Commencement Date, the Commencement Date can be extended upon mutual agreement by the parties), and for its completion to be within 36-months thereafter the Commencement Date. At least fifteen (15) calendar days prior to the commencement of work hereunder, Developer shall notify the City Engineer in writing of the date fixed for the Commencement Date, so that the City Engineer shall be able to provide inspection services.
3. Injury to Public Improvements, Public Property or Public Utilities Facilities.
Developer shall replace or repair, or have replaced or repaired, all public improvements, public utility facilities, and surveying or subdivision monuments which are destroyed or damaged in the performance of any work under this Agreement. Developer 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. Any repair or replacement shall be to the satisfaction of the City.
4. Time of Essence - Extension. Time is of the essence in this Agreement, and the dates for commencement and completion of the Improvements herein may not be extended except as provided in this paragraph. In the event good cause is shown, the City Engineer may extend the time for completion of the Improvements hereunder. Requests for extension of Dates shall be in writing and delivered to City in the manner hereinafter specified for service of notices. Any such extension may be granted without notice to Developer’s sureties, and extensions so granted without notice to the Developer’s sureties shall not relieve the sureties’ liability on the bonds to secure the faithful performance of this Agreement and to assure payment of all persons performing labor and materials in connection with this Agreement. The City Engineer shall be the sole and final judge as to whether or not good cause has been shown to entitle Developer to an extension.
In granting any extension of the dates set forth under this Agreement for commencement and completion of the Improvements, City may require a new or amended improvement security in amounts to reflect increases in the costs of constructing the Improvements, and/or impose other conditions to protect City’s interests and ensure the timely completion of the Improvements.
5. Repairs and Replacements. Developer shall replace or have replaced, or repair or have repaired, all pipes and monuments which are destroyed or damaged by reason of improvements constructed hereunder, and Developer shall replace or have replaced, repair or have repaired, or pay to the owner the entire cost of replacement or repairs, of any and all property damaged or destroyed by reason of any work done hereunder, whether such property be owned by the United States or any agency thereof, by the State of California, or any agency or political subdivision thereof, or by any combination of such owners. Any such repair or replacement shall be to the satisfaction, and subject to the approval of, the City Engineer or the corporation, person or agency.
6. Utility Deposits - Statement. Developer shall file with the City Clerk, upon the earliest date a Permit is issued, a written statement signed by Developer and each public utility -4 -
corporation involved, to the effect that Developer has made all deposits legally required by such public utility corporation for the connection of any and all public utilities to be supplied by such public utility corporation within the Property. .
7. Permits, Compliance with Laws. Developer shall comply with all generally applicable laws and regulations in the performance of this Agreement and constructing the improvements herein and shall, at Developer’s sole cost and expense, obtain all necessary permits and licenses for the construction of improvements, give all necessary notices and pay all fees and taxes required by law.
8. Superintendence by Developer. Developer shall personally supervise the work on the improvements, or have a construction contractor, competent foreman or superintendent on the work site at all times during construction, with authority to act for Developer.
Developer shall obtain the approval of the City Engineer before using a construction contractor, competent foreman or superintendent to supervise work on the improvements, as such approval not to be unreasonably withheld. Prior to granting approval, the City Engineer shall determine that said construction contractor, competent foreman or superintendent to supervise is qualified to perform such duties.
9. Inspection by City. Developer shall at all times maintain proper facilities, and shall provide safe access, for inspection by City, to all parts of the work and to the shops wherein the work is in preparation.
10. Contract Security.
(a) Concurrently with the execution hereof, Developer shall furnish: (1) a surety bond in an amount equal to at least one hundred ten percent (110%) of the estimated cost of the construction and completion of the Improvements described on the Permit Plans. as security for the faithful performance of this Agreement; and (2) a separate surety bond in an amount equal to at least one hundred ten percent (110%) of the estimated cost of the construction and completion of the work and improvements described on the Permit Plans as security for the payment of all persons performing labor and providing materials in connection with this Agreement. The City Engineer shall have the authority, but not the obligation, to release a portion or portions of the security provided for hereunder as the Improvements or portions thereof are completed and approved by the City. Developer shall require all subcontractors to file a labor and materials corporate surety bond as security for payment of all persons furnishing labor and materials in connection with this Agreement.
(b) The Developer may fulfill the requirements of subsection (a) of this section by providing a Standby Irrevocable Letter of Credit in favor of the City and in a form approved by the City Attorney.
(c) Developer may also fulfill the requirements of subsection (a) of this section by filing a cash deposit with the City.
11. Indemnification and Hold Harmless Agreement.
(a) Developer shall hold harmless, indemnify and, at the City’s request, defend City (with -5 -
Counsel selected by City), its officers, employees, agents, boards and commissions, whether elected or appointed, from and against all claims, demands, actions, causes of action, losses, damages, liabilities, costs and expenses, including but not limited to reasonable attorney’s fees or obligations, for or in connection with personal injury (including, but not limited to, death) or damage to property (both real and personal) to the extent arising out of or is in any way connected with the negligent act, error or omission of Developer, its agents, contractors, subcontractors, or employees in connection with the installation, maintenance, repair or removal of the Improvements by Developer, except to the extent arising from the City’s willful misconduct or grossly negligent acts or omissions.
(b) In order to make certain that Developer has adequate resources to fully carry out its responsibilities pursuant to subparagraph (a) above, Developer shall file with the City proof that Developer’s professional consultants (including any soils engineer or civil engineer) employed by Developer in connection with the work described herein, maintain professional liability (e.g. errors and omissions) insurance during the life of this Agreement. If the work is accomplished by contractors or subcontractors, Developer shall assure that the contractors and/or subcontractors carry general liability insurance. The insurance shall be in an amount of not less than ONE MILLION DOLLARS ($1,000,000), shall contain a provision that such insurance shall not be reduced or canceled except upon thirty (30) days written notice to City and shall be subject to the approval of the City Attorney as to form, amount and carrier, as such approval not to be unreasonably withheld.
(c) The foregoing hold harmless statement of Developer shall apply to all damages and claims for damages of every kind suffered or alleged to have been suffered by reason of the construction operations undertaken pursuant to this Agreement, regardless of whether or not City has approved the plans or specifications for the improvements, and regardless of whether or not such insurance policies have been determined to be applicable to any such damages or claims for damages.
12. Environmental Warranty. Prior to City’s acceptance of dedications or improvements, Developer shall certify and warrant that:
(a) The development and Developer are not in violation of any environmental law, and neither are subject to any existing, pending, or threatened investigation by any federal, state or local governmental authority under or in connection with any environmental law; (b) Developer nor any third party, will not use, generate, manufacture, produce, or release, on, or under the Property, any hazardous substance, except in compliance with all applicable environmental laws; and
(c) Developer has not caused or permitted the release of, and has no knowledge of the release or presence of, hazardous substance(s) on the Property or the migration of any hazardous substance from or to any other property adjacent to, or in the vicinity of, the Property.
13. Developer’s Insurance. Developer shall not commence work under this Agreement until Developer has obtained all insurance required under this paragraph, and such insurance has been approved by the City Attorney as to form, amount and carrier, nor shall -6 -
Developer allow any contractor or subcontractor to commence work until all similar insurance required of the contractor or subcontractor has been so obtained and approved, as such approval not to be unreasonably withheld. All requirements shall appear either in the body of the insurance policy or in endorsements and shall specifically bind the insurance carrier.
Developer shall take out and maintain during the life of this Agreement the following policies of insurance:
(a) Worker’s Compensation and Employers’ Liability Insurance in the statutory coverage.
In signing this Agreement, Developer makes the following certification:
“I am aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for Worker’s Compensation or to undertake self-insurance in accordance with the provisions of the Code, and I will comply with such provisions before commencing the performance of the work of this Agreement.”
(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) Contractual Liability Insurance: Developer shall take out and maintain during the life of this Agreement an insurance policy in the amount of at least TWO MILLION DOLLARS ($2,000,000), insuring Developer against damages sustained as a result of any action or actions at law or in equity, any claims or demands brought as a result of any breach or alleged breach of any contract, or provisions thereof, and/or as a result of any contractual liability, or alleged contractual liability arising out of any contract entered into by Developer and/or any of its agents or employees in order to perform the work defined herein.
(e) 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 elective and appointive boards, officers, agents, employees and volunteers, with respect to operations performed by the Developer as described herein. Evidence of the insurance described above shall be provided to City upon execution of this Agreement and shall be subject to approval by the City Attorney as to form, amount and carrier, as such approval not to be unreasonably withheld. The policy of insurance shall also contain a provision indicating that such insurance shall not be reduced or canceled except upon thirty (30) days written notice to City. In addition, the following endorsement shall be made on the policy of insurance:
-0 -
“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.”
14. Evidence of Insurance. Developer shall furnish City concurrently with the execution hereof, satisfactory evidence of the insurance required and evidence that each carrier is required to give City at least thirty (30) days prior notice of the cancellation or reduction in coverage of any policy during the effective period of this Agreement.
15. Title to Improvements. Title to, and ownership of, all improvements constructed hereunder by Developer shall vest absolutely in City, or to such other public agencies, persons, partnerships, associations or corporations to which dedications of easements were made or reserved upon the completion and acceptance of such improvements by City or the agency, person, partnership, association or corporation.
16. Repair or Reconstruction of Defective Work. If, within a period of one (1) year after final acceptance of the work performed under this Agreement, the improvements installed or constructed, or caused to be installed or constructed by Developer, or any of the work done under this Agreement, fails to fulfill any of the requirements of this Agreement or the specifications referred to herein, or proves to be defective or become damaged because of differential settlement, action of the elements, or ordinary usage, except for catastrophic events, Developer shall without delay and without any cost to City repair or replace or reconstruct any defective or otherwise unsatisfactory part or parts of the work or structure. Should Developer fail to act promptly or in accordance with this requirement, or should the exigencies of the case require repairs or replacements to be made before Developer can be notified, City may, at its option, make the necessary repairs or replacements or perform the necessary work, and Developer shall pay to City the actual cost of such repair plus fifteen (15%) percent. Developer shall at the time of acceptance of the improvements by City or other public agency, provide the City with a corporate surety bond in the principal sum of Two Hundred Fifteen Thousand Three Hundred Sixty Three Dollars ($215,363.00) to secure the undertaking and obligations set forth in this provision.
17. Trenching and Backfilling. Developer shall require that all trenching and backfilling within and outside the property lines for utility lines, including sanitary, storm, water and any other purposes, shall be done under the inspection of a soils engineer who shall test the trenching and backfilling with a sufficient number of soil tests to secure the proper compaction. If required as a condition to any permit issued by City, Developer shall further require that a certificate be filed with the City stating that said trenching and backfilling has been performed in accordance with the soils engineer’s recommendations.
18. Developer not Agent of City. Neither Developer nor any of Developer’s agents or contractors shall be considered agents of City in connection with the performance of Developer’s obligations under this Agreement.
-1 -
19. Cost of Engineering and Inspection. Developer shall pay City the actual cost to City for all inspections and other services furnished by City in connection with the construction of the above-required improvements, plus twenty-two percent thereof for administrative overhead.
City shall furnish periodic statements of all charges for services performed by City, and Developer shall complete payment of such charges within ten (10) days after receipt thereof.
20. Notice of Breach and Default. If Developer refuses or fails to obtain prosecution of the work, or any severable part thereof, with such diligence as will insure its completion within the time specified, or any extensions thereof, or fails to obtain completion of the work within such time, or if the Developer should be adjudged as bankrupt, or if Developer should make a general assignment for the benefit of Developer’s creditors, or if a receiver should be appointed in the event of Developer’s insolvency, or if Developer or any of Developer’s contractors, subcontractors, agents or employees should violate any of the provisions of the Agreement, the City Engineer or City Manager may serve written notice upon Developer and Developer’s sureties of breach of this Agreement, or of any portion thereof, and default of Developer, and Developer shall have thirty (30) days thereafter to cure or substantially commence such cure.
21. Breach of Agreement; Performance by Sureties or City. In the event of such notice which is not cured by Developer, Developer’s sureties shall have the duty to take over the work and complete the work and the improvement herein specified; provided, however, that if the sureties, within five (5) days after being served notice of such breach, do not give City written notice of their intention to take over the performance of the Agreement, and do not commence performance thereof within five (5) days after notice to the City of such election, City may take over the work and prosecute the same to completion, by contract or by any other method City may deem advisable, for the account and at the expense of Developer, and Developer’s sureties shall be liable to City for any excess cost or damages occasioned by City; and, in such event, City, without liability for so doing, may take possession of, and use in completing the work, such materials, appliances, plant and other property belonging to Developer as may be on site of the work and necessary therefor.
22. Erosion Control. If applicable, Developer shall furnish landscape plans and adequately provide for erosion control. Landscaping and irrigation improvements shall be installed to the satisfaction of the City’s Landscape Architect.
23. Trenching and Backfilling. Developer shall require that all trenching and backfilling within and outside the property lines for utility lines, including sanitary, storm, water and any other purposes, shall be done under the inspection of a soils engineer who shall test the trenching and backfilling with a sufficient number of soil tests to secure the proper compaction.
Developer shall further require that a certificate be filed with the City stating that said trenching and backfilling has been performed in accordance with the soils engineer’s recommendations.
24. Water Lines. Developer shall dedicate to the California Water Service (CWS) the easements required for the water lines, facilities and appurtenant works, unless the lines, facilities and appurtenant works are to be installed within existing easements or the Public Utility Easements on the Parcel Map. Developer shall construct and install, at its sole cost and expense, the -2 -
improvements in the easements as set forth on the approved improvement plans, subject to the approval of the CWS.
25. Notices. All notices herein required shall be in writing, and delivered in person or sent by certified mail, postage prepaid. 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
Notices required to be given to Developer shall be addressed as follows:
SSF East Grand Venture, LLC
c/o Trammel Crow Company
415 Mission Street, 45th Floor
San Francisco, California 94105
Attention: Adam M. Voelker
Notices required to be given to sureties of Developer shall be addressed as follows:
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.
26. As-Built Drawings. Developer shall furnish City in PDF file format, as-built drawings of the public improvements together with a certification by Developer’s engineer that the improvements have been constructed in accordance with the approved plans and specifications.
Developer shall furnish City with the as-built drawings concurrently with Developer’s request for acceptance of the improvements by the City.
27. Parties Obligated. Developer agrees that this Agreement shall bind Developer and Developer’s successors in interest, heirs and assigns.
28. Attorneys’ Fees. If a party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose.
29. Governing Law and Venue. This Agreement shall be governed by and construed -3 -
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.
30. Severability. If a court of competent jurisdiction finds or rules that any provision of this Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so adjudged shall remain in full force and effect. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement.
31. Release. After acceptance of the Improvements and completion of the one (1) year maintenance period in Section 16, the City shall within 60 days thereafter record a release of this Agreement in the Official Records of San Mateo County.
[signatures on the following page]
-4 -
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed.
CITY: DEVELOPER:
CITY OF SOUTH SAN FRANCISCO,
a municipal corporation
By:______________________________
Sharon Ranals
City Manager
SSF EAST GRAND VENTURE, LLC,
a Delaware limited liability company
By: TC SSF East Grand Member, LLC,
a Delaware limited liability company,
its managing member
By: TC No. Cal. Development, Inc.,
a Delaware corporation,
its sole member
APPROVED AS TO FORM:
________________________
City Attorney
ATTEST:
________________________
City Clerk
By:/OPPS1/
Name: Adam Voelker
Title: President
EXHIBITS:
Exhibit A – Legal Description of Property entitled with the 120 East Grand Avenue Vesting Tentative Map.
EXHIBIT “A”
120 East Grand Avenue Parcel Map
[Attached]