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HomeMy WebLinkAboutReso 56-2025 (25-374)Page A-1 of 12 EXHIBIT A - DRAFT AGREEMENT FOR PUBLIC IMPROVEMENTS THIS AGREEMENT made and entered into this ____, day of ______, _____, between the CITY OF SOUTH SAN FRANCISCO, a municipal corporation and political subdivision of the State of California, hereinafter called “CITY”, and K.J. WOODS CONSTRUCTION INC., hereinafter called “CONTRACTOR”1. W I T N E S S E T H: WHEREAS, City has taken appropriate proceedings to authorize construction of the public work and improvements herein provided and execution of this contract. WHEREAS, a notice was duly published for bids for the contract for the improvements hereinafter described. WHEREAS, on ____________, notice duly given, the City Council (“Council”) of said City awarded the contract for the construction of the improvements hereinafter described to the Contractor, which Contractor said Council found to be the lowest responsible bidder for said improvements. WHEREAS, City and Contractor desire to enter into this agreement for the construction of said improvements pursuant to the terms, definitions, and conditions set forth in the General Provisions and other Contract Documents. IT IS AGREED as follows: 1. Scope of Work. Contractor shall perform the Work described briefly as follows: The Work consists of the furnishing of all labor, materials, tools, equipment, and services necessary for the construction of the OYSTER POINT BLVD SANITARY SEWER MAIN RECONSTRUCTION PROJECT; PROJECT NO. SS2401; BID NO. 2690; in accordance with the Contract Documents. Also included are any such other items or details not mentioned above that are required by the Contract Documents, which are to be constructed or furnished and installed as shown on the plans, as specified herein and as directed by the Engineer. The aforementioned improvements are further described in the "Contract Documents" hereinafter referred to. 2. The Contract Documents. The complete Contract consists of the following documents: (A) Notice Inviting Bids (B) Part I – Submitted Proposal (as accepted) (C) This Agreement, including Contractor’s Payment Bond, Faithful Performance Bond and Guaranty Bond. (D) Part II – General Conditions 1. 1The term "Contractor" as used herein is employed without distinction as to either number or gender and shall include whenever the context shall permit all agents, representatives, employees, servants, subcontractors and business or social invitees. Page A-2 of 9 (E) Part III – Special Provisions: Special Conditions and Technical Specifications, including State Standard Specifications dated 2023, sections 10-99 (F) Part IV – Project Plans, approved April 3, 2025. (G) Administrative subsections of the State Standard Specifications dated 2023, as specifically referenced in contract Parts I-IV. All rights and obligations of City and Contractor are fully set forth and described in the contract documents. All of the above-named documents are intended to cooperate, so that any work called for in one and not mentioned in the other, or vice versa, is to be executed the same as if mentioned in all said documents. The documents comprising the complete contract will hereinafter be referred to as “the Contract Documents.” 3. Equipment - Performance of Work. Contractor shall furnish all tools, equipment, apparatus, facilities, labor, and materials necessary to perform and complete in a good and workmanlike manner the Work of general construction as called for, and for the manner designated in, and in strict conformity with, the plans and specifications for said Work entitled: OYSTER POINT BLVD SANITARY SEWER MAIN RECONSTRUCTION PROJECT PROJECT NO. SS2401; BID NO. 2690 The equipment, apparatus, facilities, labor, and materials shall be furnished and said Work performed and completed as required in said plans and specifications under the direction and supervision and subject to the approval of the Engineer of said City or the Engineer’s designated assistant. 4. Contract Price. City shall pay, and Contractor shall accept, in full payment for the Work agreed to be done the sum of FOUR MILLION FIVE HUNDRED EIGHTY EIGHT THOUSAND DOLLARS ($4,588,000.00). Said price is determined by the lump sum price contained in Contractor's bid proposal (“Bid”). The lump sum price and unit prices are set forth in the completed Bid forms attached hereto and made a part hereof as if set forth herein verbatim. In the event work is performed or materials furnished in addition to those set forth in Contractor's bid and the specifications herein, such work and materials will be paid for at the unit prices therein contained. Said amount shall be paid in installments as hereinafter provided. 5. Rights of City to Increase Working Days. If such Work is not completed within the time specified, the Engineer shall have the right to increase the number of working days in the amount it may determine will best serve the interest of the City. If it desires to increase said number of working days, it shall have the further right to charge to Contractor and deduct from the final payment for the Work the actual cost of engineering, inspection, superintendence, and other overhead expenses which are directly chargeable to Contractor and which accrue during the period of such extension, except that the cost of the final service and preparation of the final estimates shall not be included in such charges, provided, however, that no extension of time for the completion of such Work shall be allowed unless at least twenty (20) calendar days prior to the time herein fixed for the completion thereof or the time fixed by the Engineer for such completion as extended, Contractor shall have filed application for extension thereof, in writing with the Engineer. 6. Option of City to Terminate Agreement in Event of Failure to Complete Work . If at any time in the opinion of the Engineer, the Contractor has refused or failed to prosecute the Work or any severable part thereof, with such diligence as will insure its work, or any completion within the time Page A-3 of 9 specified, or any extensions thereof, or shall have failed to complete said work within such time, or if Contractor should be adjudged a bankrupt, or if Contractor should make a general assignment for the benefit of Contractor's creditors, or if a receiver should be appointed in the event of Contractor's insolvency, or if Contractor, or any Subcontractor, should violate any of the provisions of this Agreement, the Engineer may give written notice to Contractor, and Contractor's sureties of its intention to terminate this Agreement, such notice to contain the reasons for such intention to terminate this Agreement, and unless within five calendar (5) days after the serving of such notice, such violation shall cease and satisfactory arrangements for the correction thereof be made, this Agreement may, at the option of City, upon expiration of said time, cease and terminate. Any excess of cost arising therefrom over and above the contract price will be charged against the Contractor and the Contractor’s sureties who will be liable therefore. In the event of such termination, all money due the Contractor or retained under the terms of this contract shall be forfeited to the City; but such forfeiture will not release the Contractor or the Contractor’s sureties from liability or failure to fulfill the contract. The Contractor and the Contractor’s sureties will be credited with the amount of money so forfeited toward any excess of cost over and above the contract price, arising from the suspension termination of the operations of the contract and the completion of the Work by the City as above provided, and the Contractor will be so credited with any surplus remaining after all just claims for such completion have been paid. In the determination of the question whether there has been any such noncompliance with the contract as to warrant the suspension termination or annulment thereof, the decision of the Engineer shall be binding on all parties to the contract. 7. Termination of Contract for Convenience. The City also reserves the right to terminate the contract at any time upon a determination by the Engineer in the Engineer's sole discretion that termination of the contract is in the best interest of the City. If the City elects to terminate the contract for convenience, the termination of the contract and the total compensation payable to the Contractor shall be governed by the following: (A) The City will issue the Contractor a written notice signed by the Engineer, specifying that the contract is terminated. Upon receipt of said written notice, the Contractor will be relieved of further responsibility for damage to the Work (excluding materials) as specified in Section VII-17, "Contractor's Responsibility for the Work," of the General Conditions and, except as otherwise directed in writing by the Engineer, the Contractor shall: (1) Stop all work under the contract except that specifically directed to be completed prior to acceptance. (2) Perform work the Engineer deems necessary to secure the project for termination. (3) Remove equipment and plant from the site of the Work. (4) Take such action as is necessary to protect materials from damage. (5) Notify all subcontractors and suppliers that the contract is being terminated and that their contracts or orders are not to be further performed unless otherwise authorized in writing by the Engineer. (6) Provide the Engineer with an inventory list of all materials previously produced, purchased or ordered from suppliers for use in the Work and not yet used in the Work, including its storage location, and such other information as the Engineer may request. Page A-4 of 9 (7) Dispose of materials not yet used in the Work as directed by the Engineer. It shall be the Contractor's responsibility to provide the City with good title to all materials purchased by the City hereunder, including materials for which partial payment has been made as provided in Section IX-2, “Progress Payments,” of the General Conditions and with bills of sale or other documents of title for such materials. (8) Subject to the prior written approval of the Engineer, settle all outstanding liabilities and all claims arising out of subcontracts or orders for materials terminated hereunder. To the extent directed by the Engineer, the Contractor shall assign to the City all the right, title, and interest of the Contractor under subcontracts or orders for materials terminated hereunder. (9) Furnish the Engineer with the documentation required to be furnished by the Contractor under the provisions of the contract, including, on projects as to which Federal and State funds are involved, all documentation required under the Federal and State requirements included in the contract. (10) Take such other actions as the Engineer may direct. (B) Acceptance of the contract as hereinafter specified shall not relieve the Contractor of responsibility for damage to materials. The Contractor shall continue to be responsible for damage to materials after issuance of the Notice of Termination, except as follows: (1) The Contractor’s responsibility for damage to materials for which partial payment has been made as provided in Section IX-2, “Progress Payments,” of the General Conditions and for materials furnished by the City for use in the Work and unused shall terminate when the Engineer certifies that such materials have been stored in the manner and at the locations the Engineer has directed. (2) The Contractor’s responsibility for damage to materials purchased by the City subsequent to the issuance of the notice that the contract is to be terminated shall terminate when title and delivery of such materials has been taken by the City. (3) When the Engineer determines that the Contractor has completed the Work under the contract directed to be completed prior to termination and such other work as may have been ordered to secure the project for termination, the Contractor will recommend that the Engineer formally accept the contract to the extent performed, and immediately upon and after such acceptance by the Engineer, the Contractor will not be required to perform any further Work thereon and shall be relieved of the Contractor's contractual responsibilities for injury to persons or property which occurs after the formal acceptance of the project by the Engineer. (C) Termination of the contract shall not relieve the surety of its obligation for any just claims arising out of the work performed. (D) The total compensation to be paid to the Contractor shall be determined by the Engineer on the basis of the following: (1) The reasonable cost to the Contractor, without profit, for all work performed under the contract, including mobilization, demobilization and work done to secure the project for termination. In determining the reasonable cost, deductions will be made for the cost of materials Page A-5 of 9 to be retained by the Contractor, amounts realized by the sale of materials, and for other appropriate credits against the cost of the work. When, in the opinion of the Engineer, the cost of a contract item of work is excessively high due to costs incurred to remedy or replace defective or rejected work, the reasonable cost to be allowed will be the estimated reasonable cost of performing such work in compliance with the requirements of the plans and specifications and the excessive actual cost shall be disallowed. (2) A reasonable allowance for profit on the cost of the work performed as determined under Subsection (1), provided the Contractor establishes to the satisfaction of the Engineer that it is reasonably probable that the Contractor would have made a profit had the contract been completed and provided further, that the profit allowed shall in no event exceed four (4) percent of said cost. (3) The reasonable cost to the Contractor of handling material returned to the vendor, delivered to the City, or otherwise disposed of as directed by the Engineer. (4) A reasonable allowance for the Contractor’s administrative costs in determining the amount payable due to termination of the contract. (5) A reasonable credit to the City for defective or incomplete work not corrected. All records of the Contractor and subcontractors necessary to determine compensation in accordance with the provisions of this Section 5 shall be open to inspection or audit by representatives of the City at all times after issuance of the Notice of Termination and for a period of three (3) years, thereafter, and such records shall be retained for that period. After acceptance of the Work by the Engineer, the Engineer may make payments on the basis of interim estimates pending issuance of the Final Estimate in accordance with Section IX-7, “Final Payment,” of the General Conditions when, in the Engineer's opinion, the amount thus paid, together with all amounts previously paid or allowed, will not result in total compensation in excess of that to which the Contractor will be entitled. All payments, including payment upon the Final Estimate shall be subject to deduction for prior payments and amounts, if any, to be kept or retained under the provisions of the contract. If this contract is terminated by the City for cause, and it is later determined that the proper basis for a termination for cause did not exist, the termination shall be deemed to have been a termination for convenience and governed by the terms of this contract dealing with such termination. If the contract is terminated by the City for cause or convenience, such termination shall neither act as a waiver by the City of its right to require the Contractor to correct defects in the Work performed by the Contractor nor void any warranties applicable to the Work performed under the contract. The provisions of this Section 5 shall be included in all subcontracts. In the event of conflict between the termination provisions of this Section 8 and any other provision or the contract, this Section 5 shall prevail. 8. Performance by Sureties. In the event of any termination as herein before provided, City shall immediately give written notice thereof to Contractor and Contractor's sureties and the sureties shall have the right to take over and perform the Agreement, provided, however, that if the sureties, within five (5) working days after giving them said notice of termination, do not give the City written notice of their Page A-6 of 9 intention to take over the performance of the Agreement and do not commence performance thereof within five (5) working 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 it may deem advisable, for the account, and at the expense, of Contractor, and the sureties shall be liable to City for any excess cost or damages occasioned City thereby; and, in such event, City may, without liability for so doing, take possession of and utilize in completing the Work such materials, appliances, plant , and other property belonging to Contractor as may be on the site of the Work and necessary therefore. Should Contractor contract in an individual capacity, the surety bond shall contain the following provision: “Should Contractor contract in the Contractor’s individual capacity, the death of the Contractor shall not relieve the surety of its obligations.” 9. Hold-Harmless Agreement and Contractor's Insurance. Contractor agrees to, and shall, hold City, its elective and appointive boards, officers, agents, and employees harmless from any liability for damage or claims for damage for personal injury, including death, as well as from claims for property damage which may arise from Contractor's or any of Subcontractor's operations under this Agreement, whether such operations be by Contractor or by any Subcontractor or Subcontractors, or by any one or more persons directly or indirectly employed by, or acting as agent for, Contractor or any Subcontractor or Subcontractors. Contractor agrees to, and shall, defend City and its elective and appointive boards, officers, agents, and employees from any suits or actions at law or in equity for damages caused, or alleged to have been caused, by reason of any of the aforesaid operations, provided as follows: (A) The City does not, and shall not, waive any rights against Contractor which it may have by reason of the aforesaid hold-harmless agreement, because of the acceptance by City, or the deposit with City by Contractor, of any of the insurance policies hereinafter described in Paragraph 15, “Insurance” hereof. (B) That the aforesaid hold-harmless agreement by Contractor shall apply to all damages and claims for damages of every kind suffered, or alleged to have been suffered, by reason of any of the aforesaid operations of Contractor or any Subcontractor, regardless of whether or not such insurance policies shall have been determined to be applicable to any of such damages or claims for damages. 10. Insurance. The Contractor shall take out and maintain during the life of this Agreement the following policies of insurance: (A) Workers' Compensation and Employers' Liability Insurance providing full statutory coverage. In signing this Agreement, the Contractor makes the following certification, required by Section 1861 of the California Labor Code: "I am aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Workers' Compensation or to undertake self-insurance in accordance with the provisions of that Code, and I will comply with such provisions before commencing the performance of the work of this contract". (B) Comprehensive General Liability Insurance. Public Liability Insurance (includes premises, elevator - if applicable, products, completed operations, personal injury and contractual): Page A-7 of 9 (1) Bodily Injury Liability: $ 500,000 each person $1,000,000 each occurrence (2) Property Damage Liability [includes XCU (explosion, collapse, and underground damage); water damage and broad form property damage or third party liability]: $ 500,000 per occurrence (C) Comprehensive Automobile Liability Insurance (includes owned, non-owned, and hired vehicles): (1) Bodily Injury Liability: $ 500,000 per person $1,000,000 each occurrence (2) Property Damage Liability: $ 500,000 each occurrence (D) It is agreed that the insurance required by Subsections B and C, in an aggregate amount of not less than ONE MILLION FIVE HUNDRED THOUSAND DOLLARS ($1,500,000), shall be extended to include as additional insured the City of South San Francisco, its elective and appointive boards, commissions, officers, agents, employees, with respect to operations performed by the Contractor, as described herein. Evidence of this insurance described above shall be provided to City upon execution of this Agreement and shall be subject to approval of the City Attorney as to form, amount , and carrier. The policy of insurance shall also contain a provision indicating that such insurance shall not be reduced or cancelled except upon thirty (30) calendar days written notice to City. In addition, the following endorsement shall be made on said policy of insurance: "The following are named as additional insured on the above policies: The City of South San Francisco, its elective and appointive boards, officers, agents, and employees." "Notwithstanding any other provision in this policy, the insurance afforded hereunder to the City of South San Francisco shall be primary as to any other insurance or re-insurance 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." The above requirements that the City be named as additional insured, that the insurance shall be primary to any other, and that the insurance not be cancelled without notice, shall be provided in the form of an endorsement signed by an authorized representative of the insurance company providing coverage, who shall declare his or her authority to sign on behalf of the insurer. 11. Proof of Carriage of Insurance. Contractor shall furnish City through the Engineer, concurrently with the execution hereof, with satisfactory proof of carriage of the insurance required and that each carrier shall give City at least thirty (30) calendar days prior notice of the cancellation or change of any policy during the effective period of this contract. Further, if the Contractor’s insurance policy includes a self-insured retention that must be paid by a named insured as a precondition of the insurer’s liability, or which has the effect of providing that payments of the self-insured retention by others, including additional insureds or insurers do not serve to satisfy the self-insured retention, such provisions Page A-8 of 9 must be modified by special endorsement so as to not apply to the additional insured coverage required by this agreement so as to not prevent any of the parties to this agreement from satisfying or paying the self- insured retention required to be paid as a precondition to the insurer’s liability. Additionally, the certificates of insurance must note whether the policy does or does not include any self-insured retention and also must disclose the deductible. 12. Provisions Cumulative. The provisions of this Agreement are cumulative, and in addition to and not in limitation of, any other rights or remedies available to City. 13. Notices. All notices shall be in writing and delivered in person or transmitted by certified mail, postage prepaid. Notices required to be given to City shall be addressed as follows: City Clerk City Hall, 400 Grand Avenue South San Francisco, California 94080 Notices required to be given to Contractor shall be addressed as follows: _________________________________________________________________________ _________________________________________________________________________ Notices required to be given sureties of Contractor shall be addressed as follows: _________________________________________________________________________ Notices required to be given to the Escrow Agent of Contractor, if any, shall be addressed as follows: _________________________________________________________________________ 14. Interpretation. As used herein, any gender includes each other gender, the singular includes the plural, and vice versa. IN WITNESS WHEREOF, two (2) identical counterparts of this Agreement, consisting of nine (9) pages (being pages A-1 through A 9), each of which counterparts shall for all purposes be deemed an original of said Agreement, have been duly executed by the parties hereinabove named, on the day and year first hereinabove written. Page A-9 of 9 ATTEST: CITY: City of South San Francisco, a municipal corporation _______________________________ By: _____________________________ City Clerk Sharon Ranals, City Manager CONTRACTOR:_______________________ __________________________________ ATTEST: By:_______________________________ (If Contractor is an individual, so state. _____________________________ If Contractor is a Corporation, a corporate seal or signatures of the President or Vice President and the Secretary Treasurer are required). ATTACHMENT A ESCROW AGREEMENT FOR SECURITY DEPOSITS IN LIEU OF RETENTION THIS ESCROW AGREEMENT is made and entered into by and between the City of South San Francisco whose address is 400 Grand Ave., P.O. Box 711, South San Francisco, CA 94083, hereinafter referred to as "City" or “Owner,” and ____________________________________,whose address is ___________________________________________________________, hereinafter called “Contractor” and ______________________________________________________________,whose address is ___________________________________________________________, hereinafter called “Escrow Agent.” For the consideration hereinafter set forth, the Owner, Contractor, and Escrow Agent agree as follows: 1. Pursuant to Section 22300 of the Public Contract Code of the State of California, Contractor has the option to deposit securities with Escrow Agent as a substitute for retention earnings required to be withheld by Owner pursuant to the Construction Contract entered into between the Owner and Contractor for __________________ in the amount of _______________dollars ($_____) dated ___________ (hereinafter referred to as the “Contract”). Alternately, on written request of the Contractor, the Owner shall make payments of the retention earnings directly to the Escrow Agent. When the Contractor deposits the securities as a substitute for Contract earnings, the Escrow Agent shall notify the Owner within 10 working days of the deposit. The market value of the securities at the time of the substitution shall be at least equal to the cash amount then required to be withheld as retention under the terms of the Contract between the Owner and Contractor. Securities shall be held in the name of _______________, and shall designate the Contractor as the beneficial owner. 2. The Owner shall make progress payments to the Contractor for those funds which otherwise would be withheld from progress payments pursuant to the Contract provisions, provided that the Escrow Agent holds securities in the form and amount specified above. 3. When the Owner makes payment of retentions earned directly to the Escrow Agent, the Escrow Agent shall hold them for the benefit of the Contractor until the time that the escrow created under this contract is terminated. The Contractor may direct the investment of the payments into securities. All terms and conditions of this agreement and the rights and responsibilities of the parties shall be equally applicable and binding when the Owner pays the Escrow Agent directly. 4. Contractor shall be responsible for paying all fees for the expenses incurred by Escrow Agent in administering the Escrow Account and all expenses of the Owner. These expenses and payment terms shall be determined by the Owner, Contractor, and Escrow Agent. 5. The interest earned on the securities or the money market accounts held in escrow and all interest earned on that interest shall be for the sole account of Contractor and shall be subject to withdrawal by Contractor at any time and from time to time without notice to the Owner. 6. Contractor shall have the right to withdraw all or any part of the principal in the Escrow Account only by written notice to Escrow Agent accompanied by written authorization from the Owner to the Escrow Agent that Owner consents to the withdrawal of the amount sought to be withdrawn by Contractor. 7. The Owner shall have a right to draw upon the securities in the event of default by the Contractor. Upon seven day’s written notice to the Escrow Agent from the Owner of the default, the Escrow Agent shall immediately convert the securities to cash and shall distribute the cash as instructed by the Owner. 8. Upon receipt of written notification from the Owner certifying that the Contract is final and complete, and that the Contractor has complied with all requirements and procedures applicable to the Contract, Escrow Agent shall release to Contractor all securities and interest on deposit less escrow fees and charges of the Escrow Account. The escrow shall be closed immediately upon disbursement of all moneys and securities on deposit and payments of fees and charges. 9. Escrow Agent shall rely on the written notifications from the Owner and the Contractor pursuant to Sections (5) to (8), inclusive, of this Agreement, and the Owner and Contractor shall hold Escrow Agent harmless from Escrow Agent’s release and disbursement of the securities and interest as set forth above. 10. The names of the persons who are authorized to give written notice or to receive written notice on behalf of the Owner and on behalf of Contractor in connection with the foregoing, and exemplars of their respective signatures are as follows: On behalf of Owner: On behalf of Contractor: __________________________________ __________________________________ Title Title __________________________________ __________________________________ Name Name __________________________________ __________________________________ Signature Signature __________________________________ __________________________________ Address Address On behalf of Escrow Agent: __________________________________ Title __________________________________ Name __________________________________ Signature __________________________________ Address At the time the Escrow Account is opened, the Owner and Contractor shall deliver to the Escrow Agent a fully executed counterpart of this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement by their proper officers on the date first set forth above. Owner: Contractor: __________________________________ __________________________________ Title Title __________________________________ __________________________________ Name Name __________________________________ __________________________________ Signature Signature Approved as to form: Attest: _____________________________________ __________________________________ City Attorney Date City Clerk Page 1 of 6 EXHIBIT B – DRAFT REIMBURSEMENT AGREEMENT FOR DESIGN OF SEWER IMPROVEMENTS This Reimbursement Agreement for Design of 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 KR Oyster Point II, LLC, a Delaware limited liability company (“Kilroy"), this _____ day of ____________, 2025 (“Effective Date”), with reference to the facts set forth in the Recitals below. RECITALS A. Kilroy is the owner of certain real property consisting of approximately 9.804 - acres in the City of South San Francisco, County of San Mateo, State of California, (“Property”); and B. On March 5, 2020, the Planning Commission of the City of South San Francisco approved Application P09-0085:PP19-0001 for the KOP Phase 2-4 Precise Plan (the “Project”) on the Property, subject to certain conditions of approval (“Conditions of Approval”) ; and C. Kilroy is currently under construction with the KOP Phase 2 improvements on the property consisting of three Office/R&D buildings and a Parking Garage and associated site improvements; and D. The City’s Sanitary Sewer Master Plan has identified that the existing public sanitary sewer main on Oyster Point Boulevard from Gull Drive to the sanitary sewer pump station at Gateway Boulevard, as depicted more particularly in Exhibit A, is under capacity and must be upsized to an 18-inch HDPE SDR -17 pipeline in order to accommodate the sanitary sewer flows in said public sewer main as allowable per the latest General Plan Zoning Amendments including the Project; and E. Said sewer main upsizing on Oyster Point Boulevard should be completed prior to the occupancy of the KOP Phase 2 improvements to eliminate the risk of sanitary sewer overflows during wet weather; and F. The upsizing of the sewer main on Oyster Point Boulevard is not a Condition of Approval on the Project and is the responsibility of the City as part of its Capital Improvement Program ; and G. Given that Kilroy was 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 be incurred by the City, the City Council, on May 11, 2022, adopted a Resolution approving a Reimbursement Agreement in an amount not to exceed $1,077,240 with Kilroy for upsizing the portion of the sanitary sewer main on Oyster Point Boulevard from Gull Drive to Eccles Drive to a 12 inch pipe; and Page 2 of 6 H. At the time the City Council approved the Reimbursement Agreement, it was believed that there would be significant cost savings to the City and to the public arising from the cost efficiencies generated by having Kilroy 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 I. Also, at the time of approval, the City’s sanitary sewer model revealed that only a portion of the existing sewer pipes on Oyster Point Boulevard were considered deficient; and J. During the design phase of the sewer upsizing, additional sewer modeling was performed by the City which revealed that the entire sewer main on Oyster Point Boulevard from Gull Drive to Gateway Boulevard needs to be upsized to an 18” pipe; and K. To keep the project on schedule, Kilroy expanded the scope of the design services to include the upsizing of sewer main as recommended by the sewer model; and L. Given that the Engineer’s Estimate to construct the required sewer improvements is now in the order of $5M, staff believes that it is in the City’s best interest to have the City take the lead to construct the project by the normal public process with the Capital Improvement Program; and M. Given that Kilroy has paid for the design of these sanitary sewer improvements, which are the responsibility of the City, a new Reimbursement Agreement is necessary to reimburse Kilroy for their effort; and N. City and Kilroy desire to enter into this Reimbursement Agreement to provide for Kilroy’s reimbursement for costs incurred to prepare plans and specifications, subject to Kilroy submitting the plans, specifications, cost estimates, and proof of payment for the design of the following (Improvements): 1. Upsize the sanitary sewer main to an 18-inch HDPE SDR-17 pipeline on Oyster Point Boulevard from Gull Drive to the sanitary sewer pump station at Gateway Boulevard. 2. Remove and replace sanitary sewer manholes within the limits of sewer main replacement. 3. Trench restoration, paving, and landscape repair. 4. Asphalt Overlay of the eastbound travel lanes on Oyster Point Boulevard. Page 3 of 6 NOW, THEREFORE, in consideration of the mutual promises contained herein, the parties agree as follows: AGREEMENT 1. Design of Sewer Improvements. The City agrees that Kilroy shall design the Sewer Improvements as follows: i. As authorized by this Agreement, Kilroy agrees to submit Sewer Improvement plans and specifications and cost estimate for the Improvements in a format that can be publicly bid per City Standards. ii. Kilroy agrees to have Design Consultants available to the City while the City Manages the construction of the Improvements should any unforeseen revisions to the design be needed during construction. 2. Reimbursement for Sewer Design. City agrees to reimburse Kilroy the Reimbursement Amount for Sewer Design as follows: i. City shall issue a payment for the Reimbursement to Kilroy, within sixty (60) calendar days of Kilroy’s delivery to the City of all substantiating invoices and receipts. ii. The Reimbursement Amount, is estimated to be approximately $534,650. A summary of the costs are shown on the table below: Hathaway Dinwidie $210,650 BKF $255,500 Langan $36,500 Radius $32,000 Approximate Reimbursement Amount $534,650 3. Hold Harmless and Indemnification. To the fullest extent permitted by law, Kilroy 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 the activities performed by or on behalf of Kilroy as authorized by this Agreement, except such Liability caused by the negligence or willful misconduct of the City Indemnitees. Page 4 of 6 4. No Relief of Other Obligations. This Agreement does not relieve Kilroy 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 Kilroy from obtaining all required entitlements, permits, authorizations, or other approvals for any other work proposed at the Project Site. 5. Insurance. Kilroy shall maintain, or ensure that its contractors or subcontractors maintain, during the life of this Agreement the following policies of insurance: i. Worker’s Compensation and Employers’ Liability Insurance in the statutory coverage. ii. 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. iii. 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. iv. 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 Kilroy as described herein. Evidence of the insurance described above shall be provided to City upon execution of this Agreement. 6. Default. In the event of default by Kilroy hereunder, the costs and expenses of City for which Kilroy shall be liable shall include but not be limited to the City’s costs of suit and reasonable attorney’s fees. 7. Independent Contractor. Kilroy 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 Kilroy. 8. 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. 9. Term. This Agreement is effective upon execution unless otherwise modified in writing by mutual agreement of the parties. Page 5 of 6 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] Page 6 of 6 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date written above. CITY OF SOUTH SAN FRANCISCO By: __________________________ Sharon Ranals, City Manager Attest: __________________________ City Clerk Approved as to form: __________________________ City Attorney KR OYSTER POINT II, LLC, a Delaware limited liability company By: Kilroy Realty, L.P., a Delaware limited partnership, its Sole Member By: Kilroy Realty Corporation, a Maryland Corporation, its General Partner By: Name: Title: By: Name: Title: Page 1 of 5 EXHIBIT C- DRAFT - LICENSE FOR THE USE OF REAL PROPERTY HCP Oyster Point III, LLC (“HCP”) and Oyster Point Owners Association, Inc. (“Association”), hereby grant this License (“License”) to the City of South San Francisco (“City”) to enter upon and use a portion of Owners’ property as described herein, subject to the conditions set forth in this License. HCP and the Association collectively may be referred to as “Owners” in this License. HCP, the Association, and the City individually may be referred to as “Party” and collectively may be referred to as “Parties” in this License. 1.Property: a.HCP owns the real property located at 131 Oyster Point Blvd., South San Francisco, CA, APN 015-011-280 (“HCP Property”), described as “Parcel 6 as shown on that certain parcel map entitled ʻPARCEL MAP 12-0002 BRITANNIA COVE AT OYSTER POINT’ filed December 22, 2014, in Book 81 of Maps at Pages 60 -64, San Mateo County Records. b.The Association owns the real property consisting of the common area for the private right-of-way comprising Veterans Boulevard north of Oyster Point Boulevard, in South San Francisco, CA, described as “Parcel 7” of “Parcel Map 97- 027” filed on January 22, 1998, in Book70 of Maps at Pages 33-40, San Mateo County Records, as modified by Lot Line Adjustment No. 16 recorded on June 18,1999 at Series 99-106117, San Mateo County Records, excepting therefrom the portions conveyed pursuant to the Deeds recorded on March 15, 2011 as Instrument Numbers 2011-030224 and 2011-030255, San Mateo County Records (“Association Property”). c.A strip of the HCP Property along its easterly boundary, approximately twelve feet in width more or less, is within the Veterans Boulevard private right-of-way (“HCP Portion”). HCP granted the Association an easement for the use of the HCP Portion for the Veterans Boulevard private right-of-way pursuant to the Easement Deed recorded on May 12, 2016 as Instrument Number 2016-044599, San Mateo County Records. d.A lot line adjustment currently is pending with the City to encompass the HCP Portion with the Association’s fee ownership of Veterans Blvd. but HCP remains the fee title owner of the HCP Portion until the lot line adjustment is finalized. HCP and the Association are each a Party to this License to the extent either or both have an interest in the property that is the subject of this License. e.This License concerns and is limited to the portion of Veterans Boulevard within the area delineated by red dotting and labeled “Proposed Construction staging area” in the attached “Exhibit A” (“License Area”) attached hereto and incorporated herein. 2.Terms of License: This temporary License is granted to City and its contractors, agents, officers, and employees, and all persons acting on or purporting to act on their behalf Page 2 of 5 (collectively “Licensees”) for the exclusive use of the License Area for staging construction of the City’s Oyster Point Sanitary Sewer Reconstruction Project (the “Project”), SS2412, until Completion of the Project as that term is defined in Section 2(f) below, and is limited to the following: a. Within the License Area, the existing southbound right turn lane on Veterans Boulevard (staging area) shall be fenced or barricaded for duration of the Project. b. The License Area may be used by Licensees for staging material and equipment, and for entry and exit from the License Area to the Project area, for the sole purpose of the construction of the Project. c. The remaining southbound travel lanes on Veterans Boulevard within the License Area will serve as a right-turn only lane and a through/left turn lane for the duration of the Project. d. The City shall require its contractor to provide a flagman on Veterans Blvd for the staging area during construction hours. e. Construction of the Project may occur between the hours of 8:00 p.m. – 5:00 a.m. every day. f. At Completion of the Project as defined in this subsection, and in exchange for the grant of License herein, the City will at its sole cost and expense repave the asphalt concrete and reinstall striping on Veterans Blvd. within the limits shown on Exhibit A and in accordance with the scope of work included in Exhibit A (the “Work”) . As used in this License, “Completion of the Project” means the City’s final acceptance of the Project). g. At Completion of the Project, City shall repair any damage to the License Area caused by its construction staging under this License and shall restore the License Area to its condition prior to any construction staging pursuant to this License within a commercially reasonable timeframe. h. Any and all Mechanic’s Liens filed on account of the Work performed by Licensees under this License shall be promptly cured by City’s payment thereof and the recording of applicable Release of Mechanic’s Liens, or City shall post statutory mechanic’s lien release bonds in lieu thereof within seven (7) days after the filing of each such Mechanic’s Lien. i. The City shall not store or handle, or permit the Licensees to store or handle, hazardous materials at any time upon the HCP Property or the Association Property, including without limitation upon the License Area. 3. Term: Upon execution of a construction contract by the City for the City’s Project, the Page 3 of 5 City shall provide to Owners a Notice to Proceed with Entry on the License Area. The term of this License shall commence within 14 calendar days from the issuance of said Notice and shall expire following the Completion of the Project upon completion of all work required under Section 2(f) and Section 2(g) of this License (“License Term”). The City anticipates that the Project will begin in June 2025 and will last nine (9) months, but not longer than twelve (12) months. The License Term may be extended if mutually agreed by both City and Owners. At the expiration of the License Term, all rights, obligations, and restrictions under this License shall terminate except the obligations and restrictions specified in Sections 2(f), 2(g), and 2(h) of this License. 4. Assumption of Risk and Releases: Each person entering upon the License Area under this License shall do so at its own risk. City assumes all risk of the Licensees entering the License Area and agrees that Owners are released and shall not be liable in any manner for injury to or death of the Licensees, or for damage to property of City arising from the Licensees’ entry onto the HCP Property or the Association Property, including without limitation onto the License Area, except for claims resulting from the gross negligence or willful misconduct of Owners. 5. Insurance: During the License Term, the City shall maintain or require its contractors for the Project to maintain General Liability Insurance for bodily injury, property damage, and personal injury. The policies shall be written on an occurrence basis with limits of not less than $1,000,000 per occurrence and $2,000,000 general aggregate, and Worker's Compensation and Employer’s Liability Insurance as required by California law. The policies must be primary and non-contributory with a waiver of subrogation in favor of Owners. The insurance shall be extended to include Owners as additional insureds and the City shall provide a copy of the insurance certificate under its insurance or its contractor’s insurance to Owners. 6. Indemnification: City shall defend, indemnify and hold Owners harmless from and against any and all liability, loss, expense (including reasonable attorneys’ fees) or claims for injury or damages (collectively “Losses”) arising out of the conduct of Licensees in the performance of this License, except to the extent that such Losses are caused by the negligence or willful misconduct of Owners. . 7. No Dedication: Nothing contained in this License shall be deemed a gift or dedication of any portion of the License Area to or for the general public or for any public purpose whatsoever. This License shall be strictly limited to and for the purposes expressed within. 8. Rights Limited: This License shall not be construed to grant any real property or other rights to City in the License Area. 9. Entire Agreement: This License constitutes the entire agreement between Owners and City pertaining to Licensees’ entry upon and use of the License Area and supersedes all prior written or oral agreements. Page 4 of 5 10. Governing Law; Attorneys’ Fees: This License shall be construed and enforced in accordance with and governed by the laws of the State of California. In the event that either party institutes any action, suit or other dispute resolution proceeding based on this License against the other party, the prevailing party is entitled to receive all costs and expenses, associated therewith including but not limited to reasonable attorneys’ fees and court costs. 11. Maintenance: During the License Term, Owners shall have no obligation or responsibility to maintain or repair the License Area. 12. Revocation: This License may not be revoked within the License Term except by written agreement as provided in Section 13 of this License. 13. Amendment: This License may be amended, modified, or revoked by, and only by, a written agreement signed by HCP, Association, and City, and each of them. 14. Authority of Signatories: Each Party warrants and represents that its below signatory has authority to sign this License on its behalf and to bind such Party to this License. City warrants and represents that the City Manager has authority to enter into this License pursuant to the authority vested in the City Manager, without the necessity of a separate Resolution or Ordinance by the City Council. 15. Captions and Defined Terms: The captions preceding the text of each Section are included only for convenience of reference. Captions shall be disregarded in the construction and interpretation of this License. Capitalized terms are also selected only for convenience of reference and do not necessarily have any connection to the meaning that might otherwise be attached to such term in a context outside of this License. IN WITNESS HEREOF, the parties have executed this License as of the last date written below. City of South San Francisco By:____________________________________ Date:____________________ Sharron Ranals, City Manager Approved as to form: ______________________________________ City Attorney Page 5 of 5 Owner HCP OYSTER POINT III, LLC By:____________________________________ Its: ____________________________________ Date: __________________________________ Owner OYSTER POINT OWNERS ASSOCIATION, INC. By:____________________________________ Its: ____________________________________ Date: __________________________________ Proposed Construction staging area Project Summary: Scope of Work: Reconstruct Sanitary Sewer Main on Oyster Point Blvd. from Gateway Blvd. to Gull Dr. , Asphalt Overlay of Eastbound Oyster Point Blvd. Start of Construction: July/Aug 2025 Duration: 9 months +/- Hours of Work: evening hours (8pm- 5am) Proposed Construction Staging Area on Veterans Blvd southbound right turn lane Area to be fenced /barricaded for duration of project . Area to be used for staging material and equipment. Flagmen to be provided on Veterans Blvd during construction hours. At completion of project, City will grind and overlay AC pavement, and reinstall striping on Veterans Blvd. convert marking to a right turn lane Oyster Point Blvd Sanitary Sewer Reconstruction. Limit of AC Pavement Overlay (curb-to-curb) at completion of project. EXHIBIT A