HomeMy WebLinkAboutReso 150-2019 (19-908)City of South San Francisco P.O. Box 711 (City Hall,
400 Grand Avenue)
South San Francisco, CA
City Council
Resolution: RES 150-2019
File Number: 19-908 Enactment Number: RES 150-2019
RESOLUTION AWARDING A CONSTRUCTION CONTRACT TO
JMB CONSTRUCTION, INC. OF SOUTH SAN FRANCISCO,
CALIFORNIA FOR THE SANITARY SEWER PUMP STATION NO.
2 UPGRADE (PROJECT NO. SS1702) IN AN AMOUNT NOT TO
EXCEED $4,505,000 AND AUTHORIZING A TOTAL PROJECT
BUDGET OF $6,350,500, AND AUTHORIZING THE CITY
MANAGER TO EXECUTE THE CONSTRUCTION CONTRACT
ON BEHALF OF THE CITY, AND APPROVING A COST-SHARING
AGREEMENT WITH ALEXANDRIA REAL ESTATE EQUITIES
(ARE) TO PAY FOR AESTHETIC IMPROVEMENTS TO THE
STATION APPEARANCE AND AUTHORIZING THE CITY
MANAGER TO EXECUTE SAID AGREEMENT ON BEHALF OF
THE CITY.
WHEREAS, City of South San Francisco operates nine sanitary sewer pumping stations to help maintain
flow in the relatively flat terrain east of Highway 101; and
WHEREAS, Pump Station No. 2, located at 955 Gateway Boulevard near the intersection with Oyster
Point Blvd is an important link in the City's collection system, receiving sewage from the Oyster Point
area and transmitting it to the Water Quality Control Plant for treatment; and
WHEREAS, the station equipment is reaching the end of its operational life and is undersized for the
projected growth of the Oyster Point basin; and
WHEREAS, the City commissioned design of a complete station overhaul to replace and upsize
equipment, provide emergency backup power, and add modern control features; and
WHEREAS, the Pump Station No. 2 resides in a public sewer easement within the 955 Gateway Blvd.
property managed by Alexandria Real Estate Equities (ARE) and ARE has offered to fund their desired
architectural improvements to enhance the appearance of the pump station building; and
WHEREAS, ARE and the City have negotiated a cost-sharing agreement for ARE to provide the funding
for such architectural improvements; and
WHEREAS, on September 19, 2019 and September 26, 2019, the City advertised for construction bids
for the Sanitary Sewer Pump Station No. 2 Upgrade and received 4 bids in response; and
WHEREAS, pursuant to Public Contract Code §20166, Public Works contracts, if awarded, are to the
lowest responsible bidder whose bid is responsive to the solicitation; and
City of South San Francisco Page 1
File Number: 19-908 Enactment Number: RES 150-2019
WHEREAS, JMB Construction, Inc. of South San Francisco, California submitted the lowest responsive
and responsible bid in the amount of $4,505,000; and
WHEREAS, the project is included in the City of South San Francisco's Fiscal Year 2018-19 Capital
Improvement Program (Project No. ss 1702) with sufficient funds allocated to cover the project cost.
NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of South San Francisco that
the City Council hereby awards a construction contract, a draft of which is attached hereto as Exhibit A,
for the Sanitary Sewer Pump Station No. 2 Upgrade to JMB Construction, Inc. of South San Francisco,
California, in an amount not to exceed $4,505,000 conditioned on JMB Construction's timely execution
of the Project contact and submission of all required documents, including but not limited to certificates
of insurance and endorsement, in accordance with the Project documents.
BE IT FURTHER RESOLVED, the City Manager is authorized to execute the construction contract in
substantially the same form as that attached hereto as Exhibit A, and any other related documents on
behalf of the City, subject to approval as to form by the City Attorney.
BE IT FURTHER RESOLVED, the City Council authorizes a total project budget of $6,350,500.
BE IT FURTHER RESOLVED, that the City Council approves a cost-sharing agreement with
Alexandria Real Estate Equities, attached hereto as Exhibit B, to pay for the architectural improvements
to the station.
BE IT FURTHER RESOLVED, the City Manager is authorized to execute the cost-sharing agreement in
substantially the same form as that attached hereto as Exhibit B and any other related documents on
behalf of the City, subject to approval as to form by the City Attorney.
At a meeting of the Special City Council on 11/13/2019, a motion was made by Councilmember Nagales,
seconded by Councilmember Nicolas, that this Resolution be approved. The motion passed.
Yes: 5 Councilmember Nagales, Mayor Matsumoto, Councilmember Addiego,
Councilmember Nicolas, and Vice Mayor Garbarino
Attest by ioo L U—,
sa Govea Acosta
City of South San Francisco Page 2
Exhibit A
CITY OF SOUTH SAN FRANCISCO
SANITARY SEWER PUMP STATION NO. 2 UPGRADE
Project No. ss1702
Bid No. 2623
FORM OF AGREEMENT FOR PUBLIC IMPROVEMENTS
THIS PAGE INTENTIONALLY LEFT BLANK
FORM OF AGREEMENT FOR PUBLIC IMPROVEMENTS
TABLE OF CONTENTS
Page No.
1. Scope of Work A-1
2. The Contract Documents A-1
3. Equipment - Performance of Work A-2
4. Contract Price A-2
5. Rights of City to Increase Working Days A-2
6. Option of City to Terminate Agreement in Event A-3
of Failure to Complete Work
7. Termination of Contract for Convenience A-3
8. Performance by Sureties A-6
9. Hold-Harmless Agreement and Contractor's Insurance A-6
10. Insurance A-6
11. Proof of Carriage of Insurance A-8
12. Provisions Cumulative A-8
13. Notices A-8
14. Interpretation A-8
Attachment A – Escrow Agreement for Security Deposits in Lieu of Retention
Page A-1 of 12
FORM OF 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 XXX, 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 November 13, 2019, 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 SANITARY SEWER PUMP STATION No. 2 UPGRADE; 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 2015, sections 10-99, as revised in Revised Standard
Specifications (RSS) dated August 30, 2019.
(F) Part IV – Project Plans dated August 30, 2019.
(G) Administrative subsections of the State Standard Specifications dated 2015, as
specifically referenced in contract Parts I-IV and as revised in RSS dated April 20, 2018
All rights and obligations of City and Contractor are fully set forth and described in the con tract
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:
SANITARY SEWER PUMP STATION NO. 2 UPGRADE, ss1702
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 FIVE HUNDRED THIRTY FOUR THOUSAND ONE HUNDRED AND
NINETEEN DOLLARS AND FIFTY CENTS ($534,119.50). 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 specified, or
Page A-3 of 9
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 a bove
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
Page A-4 of 9
Work, including its storage location, and such other information as the Engineer
may request.
(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:
Page A-5 of 9
(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 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.
Page A-6 of 9
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
intention to take over the performance of the Agreement and do not commence per formance 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".
Page A-7 of 9
(B) Comprehensive General Liability Insurance.
Public Liability Insurance (includes premises, elevator - if applicable, products,
completed operations, personal injury and contractual):
(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
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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 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 twelve
(12) pages (being pages A-1 through A-12), 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 Charles M. Futrell, City Manager
ATTEST: CONTRACTOR:_______________________
__________________________________
_______________________________ 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," 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
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EXHIBIT B
FUNDING AGREEMENT FOR PUBLIC IMPROVEMENTS
This FUNDING AGREEMENT FOR PUBLIC IMPROVEMENTS ("Agreement") is entered into
and effective as of the _____ day of _____________, 2019, by and between the City of South San
Francisco, a municipal corporation ("City"), and ARE-901/951 Gateway Boulevard, LLC, a
Delaware limited liability company ("ARE") (collectively, "Parties").
RECITALS:
A. Sewer Pump Station No. 2 ("Facility"), located at the southwest corner of the intersection of
Gateway Boulevard and Oyster Point Parkway, is slated to be rehabilitated, expanded, and upgraded
(generally, the "Original Upgrade") in order to serve the properties in the vicinity. Accordingly, the
City's design team prepared plans, specifications, and drawings for the Original Upgrade (the
"Original Upgrade Design Documents").
B. Because of the prominent location of the Facility and the industrial appearance of the existing
Facility and the Facility after the Original Upgrade, ARE (i) expressed a desire to have the appearance
of the Facility altered so that it will be more consistent with surrounding new developments and more
welcoming to ARE's property at The Gateway, and (ii) expressed a willingness to fund the costs of
the improvements necessary to alter the appearance of the Facility.
C. At ARE's request, the City agreed to work with ARE's design team to add architectural
features to the Facility and to modify the height of several retaining walls for the Facility (the
"Additional Improvements"). The City's and ARE's design teams worked together to formulate a
design for the Additional Improvements that is acceptable to both Parties.
NOW THEREFORE, for and in consideration of the mutual promises and covenants set forth herein,
the Parties agree as follows:
1. Design Concepts. The Parties have reviewed the design plans for the Additional
Improvements and concur with the design and scope of such Additional Improvements. The
City has revised the Original Upgrade Design Documents to incorporate the Additional
Improvements in a manner that is generally consistent with the design concepts of the
Additional Improvements (as revised, the "Revised Upgrade Design Documents"), subject to
reasonable modifications to be reviewed and approved by ARE, which approval shall not be
unreasonably withheld. The rehabilitation, expansion, and upgrade of the Facility as reflected
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in the Revised Upgrade Design Documents will be referred to in this Agreement as the
Revised Upgrade.
2. Costs of Revised Upgrade Design Documents. The City has presented ARE with an invoice
for $51,941.00 for the design costs incurred by the City in preparing the Revised Upgrade
Design Documents (the "Design Costs"). ARE agrees to reimburse the City for the Design
Costs, in the manner provided in Sections 3 and 4 below.
3. Costs of Additional Improvements. ARE agrees to reimburse the City for the costs of
constructing and installing the Additional Improvements (the "Construction Costs") as part of
the Revised Upgrade project, subject to the terms and conditions of this Agreement. The City
has solicited bids to construct and install the Additional Improvements based on the Revised
Upgrade Design Documents, which identify the Additional Improvements as separate bid
items. The total of the separate bids for constructing and installing the Additional
Improvements is $120,000. The Parties agree that ARE will fund the estimated Construction
Costs, plus the Design Costs, plus an estimated 10% management and administrative fee
which is calculated on the basis of the estimated costs of constructing and installing the
Additional Improvements (the "Administrative Fee"), for a total of $189,135.00.
4. Deposit By ARE. Within ninety (90) days following execution of this Agreement, ARE shall
deposit with the City the amount of $189,135.00 ("Deposit"). The City shall maintain a
separate interest-bearing account for the Deposit, and shall only use the Deposit for payment
of the Design Costs, the Construction Costs (which will include the City's inspection and
testing fees, which fees shall be solely deducted from the Deposit with no additional fee
obligation on the part of ARE), and the Administrative Fee. Upon receipt of the Deposit, the
City shall proceed to construct and install the Additional Improvements within two (2) years
of such receipt, which time may be extended by mutual agreement of the Parties. During the
construction and installation of the Additional Improvements, the City shall periodically (but
not more frequently than every 60 days) provide ARE with reasonably acceptable
substantiation of all uses of the Deposit (including reasonably detailed descriptions of the
work paid for using the Deposit, together with the identities and mailing addresses of all
persons performing such work or supplying materials for such work, and copies of lien
releases and waivers obtained from such persons). If the Revised Upgrade project is
terminated, then, within ninety (90) days following termination, the City shall (i) refund the
Deposit to ARE, minus the Design Costs and any Construction Costs already incurred by the
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City, and (ii) provide ARE with reasonably acceptable substantiation of all uses of the Deposit
not previously substantiated by the City in accordance with this Section.
5. Responsibility for Management. Once it receives the Deposit, the City shall be solely
responsible for management of the Deposit and the construction and installation of the
Additional Improvements, including, without limitation, making payments required to be
made to third parties to construct and install the Additional Improvements and ensuring that
all work complies with the Revised Upgrade Design Documents and all applicable legal and
insurance requirements. The City shall use commercially reasonable efforts to ensure that the
sum of the Design Costs, the Construction Costs, and the Administrative Fee does not exceed
the Deposit. If the City anticipates a potential cost overrun, the City shall immediately notify
ARE. The Parties shall promptly meet and confer to implement a mutually agreeable solution,
which may include a reduction in the scope of the Additional Improvements. Alternatively,
in the event of a potential cost overrun, ARE shall have the right to direct, in its sole discretion,
all subsequent uses of the Deposit.[ As part of the City's management of the Deposit and the
construction and installation of the Additional Improvements, the City shall keep ARE's
property at The Gateway free and clear of all liens arising or alleged to arise in connection
with any work performed, labor or materials supplied or delivered, or similar activities
performed in connection with the Revised Upgrade. If any lien is placed on ARE's property
at The Gateway in connection with the Revised Upgrade, the City shall promptly cause such
lien to be released and removed from title, either by payment or by recording a lien release
bond in the manner specified in California Civil Code Section 8424 or any successor statute.
If the City shall fail to release or remove such lien within 30 days after the City's receipt of
notice from ARE and the City is not diligently proceeding to release or remove such lien, ARE
shall have the right, but not the obligation, to record a lien release bond in the manner
specified in California Civil Code Section 8424 or any successor statute, and the City shall
reimburse ARE for the reasonable costs of obtaining and recording such bond within 30 days
after the City's receipt of an invoice therefor, together with reasonably acceptable
substantiation thereof.]
6. Monitoring of Revised Upgrade Project. ARE shall have the right to monitor the Revised
Upgrade project, provided that ARE's right to monitor such project shall be solely for its own
benefit, and ARE shall have no duty to ensure that such project complies with the Revised
Upgrade Design Documents or with any applicable legal or insurance requirements.
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7. Refund of Unspent Funds. Upon completion of the Additional Improvements, if any funds
remain in the Deposit (including any interest earned thereon), the City shall refund those funds
to ARE within ninety (90) days following completion of the Improvements. If this Agreement
is terminated and any funds remain in the Deposit (including any interest earned thereon), the
City shall refund those funds to ARE within ninety (90) days following termination.
8. Dedication of Additional Easements. The parties acknowledge and agree that the existing
Facility and the related storm sewers are located within easements dedicated for public use on
that certain Final Map Gateway Center, filed October 1, 1982, in Book 107 of Maps, Pages 27
through 30, inclusive, San Mateo County Records. Such easements are shown on the map
attached hereto as Exhibit A and incorporated herein by reference (the "Easement Map") as
the "Sewer Pump Station Easement" and the "Sanitary Sewer Easement". Given that the
Revised Upgrade includes an expansion of the Facility, ARE agrees to dedicate additional
easements to accommodate such expansion (the "Additional Easements"), on terms and
conditions reasonably acceptable to each Party. The intended location of the Additional
Easements are shown on the Easement Map as the "Proposed Expanded Sewer Pump Station
Easement" and the "Proposed Expanded Sanitary Sewer Easement". Any modifications to the
intended location of the Additional Easements must be reviewed and approved by ARE, which
approval shall not be unreasonably withheld. If the Revised Upgrade project is terminated,
then, within ninety (90) days following termination, the City shall execute and deliver any
instruments that may be necessary to terminate the Additional Easements.
9. Operation, Maintenance and Replacement. Upon completion of the Revised Upgrade project,
City shall be solely responsible for the operation, maintenance, repair and replacement of the
Additional Improvements and all other parts of the rehabilitated, expanded, and upgraded
Facility, including any and all associated costs. The City shall be the sole owner of the
rehabilitated, expanded, and upgraded Facility, including all improvements associated with
the Revised Upgrade project. Upon completion of the landscaping surrounding the Facility
by ARE, ARE shall be solely responsible for the operation, maintenance, repair and
replacement of the landscaping located within the area surrounding the Facility, including any
and all associated costs, all as more specifically provided in that certain Landscaping
Maintenance Agreement that is being executed concurrently herewith.
10. Hold Harmless Agreement. City shall indemnify, defend with counsel acceptable to ARE,
and hold harmless to the full extent permitted by law, ARE, ARE's affiliates and their
respective direct or indirect members, partners, shareholders, principals, trustees,
beneficiaries, directors, officers, employees and agents from and against any and all liability
5
of every nature arising out of or in connection with the Revised Upgrade project, including
the design and construction thereof, except such liability caused by the active negligence,
omissions or willful misconduct of ARE pursuant to its obligations under this Agreement or
the Landscaping Maintenance Agreement. However, the City's duty to indemnify does not
extend to work performed by ARE in the event that ARE performs any of the construction or
installation of the Additional Improvements. Should ARE perform any of the construction or
installation of the Additional Improvements, ARE shall indemnify, defend with counsel
acceptable to City, and hold harmless to the full extent permitted by law, City and its agents,
officers, officials, employees and other representatives from and against any and all liability
of every nature arising out of or in connection with the active negligence, omissions or willful
misconduct of ARE solely with respect to those elements of the Additional Improvements that
are constructed or installed by ARE.
City's and ARE's duty to indemnify herein shall apply regardless of whether or not any
insurance policies shall have been determined to be applicable to any of such damages or
claims for damages.
The indemnity under this Section shall survive expiration or termination of this Agreement.
11. ARE Not Agent of City. Neither ARE nor any of ARE's agents or contractors are, nor shall
be considered to be, agents of the City in connection with the performance of ARE's
obligations under this Agreement. In addition, ARE and the City are not partners or joint
venturers with each other and nothing herein shall be construed to make them such partners
or joint venturers.
12. Notice of Breach and Default. An event of default shall occur hereunder upon the failure of
either Party to fulfill or perform any obligation required to be fulfilled or performed by such
Party hereunder, unless cured within thirty (30) days after the non-defaulting Party provides
notice of the breach. Upon the occurrence of a default, the non-defaulting Party may pursue
all remedies at law or in equity whether or not such remedies are provided for in this
Agreement, expressly including the remedy of specific performance of this Agreement.
13. Notices. All notices herein required shall be in writing and delivered in person, sent by
registered or certified mail, postage prepaid, or sent by reputable overnight courier, fees
prepaid. Notice shall be deemed given as of the date of delivery in person, as of the date of
deposit in any post office or post office box regularly maintained by the United States Postal
6
Service, or as of the date delivered to the overnight courier, unless otherwise stated herein.
Notices required to be given shall be addressed as follows:
City: City of South San Francisco
315 Maple Avenue
Attn: Matthew Ruble, Principal Engineer
South San Francisco, CA 94080
ARE: c/o Alexandria Real Estate Equities, Inc.
1700 Owens Street, Suite 590
San Francisco, CA 94158
Attention: Toon Jordan
and copy to: Alexandria Real Estate Equities, Inc.
26 North Euclid Avenue
Pasadena, CA 91101
Attn: Corporate Secretary
Re: 901 Gateway (South San Francisco, CA)
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.
14. Successors. This agreement shall bind, and the benefits inure to, the respective parties thereto,
their legal representatives, executors, administrators, successors in office or interest, and
assigns.
15. Amendment. This Agreement may be amended only by a written instrument executed by both
Parties.
16. Construction. This Agreement is the product of negotiation and compromise on the part of
both Parties and that the Parties agree that, notwithstanding Civil Code Section 1654, any
uncertainty in the Agreement shall not be construed against the drafter of the Agreement.
17. Governing Law; Venue. This Agreement shall be enforced and interpreted under the laws of
the State of California and of the City of South San Francisco. Any action arising from or
brought in connection with this Agreement shall be venued in a court of competent jurisdiction
in the County of San Mateo, State of California.
18. Non-Waiver. Either Party's failure to enforce any provision of this Agreement or the waiver
thereof in a particular instance shall not be construed as a general waiver of any part of such
provision. The provision shall remain in full force and effect.
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19. 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 in full force and effect.
20. No Third Party Beneficiaries. The Parties do not intend to create, and nothing in this
Agreement shall be construed to create, any benefit or right in any third party.
21. Mediation. The Parties agree to make a good faith attempt to resolve any dispute arising out
of this Agreement through mediation prior to commencing litigation. The Parties shall
mutually agree upon the mediator and shall divide the costs of mediation equally.
22. Headings. The headings used in this Agreement are for convenience only and are not intended
to affect the interpretation or construction of any provisions herein.
23. Survival. All obligations arising prior to the termination of this Agreement and all provisions
of this Agreement allocating liability between City and ARE shall survive the termination of
this Agreement.
[ Signature Page Follows ]
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IN WITNESS WHEREOF, the Parties have cause this Agreement to be executed as of the date first
set forth above.
CITY OF SOUTH SAN FRANCISCO ARE-901/951 GATEWAY BOULEVARD, LLC
By
City Manager Name and Title
APPROVED AS TO CONTENT:
City Engineer
ATTEST:
City Clerk
APPROVED AS TO FORM:
1991912.2
3391961.1
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EXHIBIT A
Easement Map
[ See Following Page ]