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HomeMy WebLinkAboutReso 186-2020 (20-907)City of South San Francisco P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA City Council Resolution: RES 186-2020 File Number: 20-907 Enactment Number: RES 186-2020 RESOLUTION APPROVING AND AUTHORIZING THE CITY MANAGER TO EXECUTE AN ACCESS AND PERMIT AGREEMENT BETWEEN THE CITY OF SOUTH SAN FRANCISCO AND THE SAN MATEO COUNTY FLOOD AND SEA LEVEL RISE RESILIENCY DISTRICT FOR THE ORANGE MEMORIAL PARK STORM WATER CAPTURE PROJECT. WHEREAS, the City is undertaking the Orange Memorial Park Storm Water Capture Project ("Project"), the goal of which is to provide water quality improvements meeting National Pollutant Discharge Elimination System (NPDES) requirements pursuant to the San Francisco Bay Municipal Regional Stormwater Permit (Order R2-2009-0074, NPDES Permit No. CAS612008, October 14, 2009), including reducing PCB and mercury discharge into the San Francisco Bay; and WHEREAS, the Project consists of constructing a diversion and treatment structure to capture and treat approximately sixteen (16) percent of the annual drainage from approximately 6,500 acres of land in the City of South San Francisco, Town of Colma, the City of Daly City, and a portion of unincorporated San Mateo County, into Colma Creek at the Project site; and WHEREAS, as a part of the Project construction, an instream diversion structure and overflow pipe will be installed and operated inside the Colma Creek flood control channel, located in the Colma Creek Flood Control Zone within Orange Memorial Park; and WHEREAS, said installation location in Colma Creek is within the right of way owned by the San Mateo County Flood and Sea Level Rise Resiliency District ("District"); and WHEREAS, in order for the City to install, operate and maintain the instream diversion structure and overflow pipe in its right of way, the District requires the City to execute, and has negotiated with the City, an Access and Permit Agreement, a copy of which is attached hereto as Exhibit A; and WHEREAS, the City previously provided proposed plans and specifications to the District for comments, and received comments from the District on September 30, 2020, and the plans and specifications were finalized on October 15, 2020; and WHEREAS, the proposed Access and Permit Agreement would authorize the City to access the District's right of way to construct, operate, maintain, and repair the Project facilities, and would set forth the terms and conditions relating to the District's grant of such access. City of South San Francisco Page 1 File Number., 20-907 Enactment Number. RES 186-2020 NOW, THEREFORE, the City Council of the City of South San Francisco does hereby resolve as follows: 1. The Recitals set forth above are true and correct, and are incorporated herein by reference. 2. The Access and Permit Agreement, attached hereto and incorporated herein as Exhibit A (with illustration of the permit area identified under Exhibit A.1), is hereby approved. 3. The City Manager is hereby authorized to execute the agreement in Exhibit A, and to make minor revisions to the agreement, with review and approval by the City Attorney, which do not materially or substantially increase the City's obligations thereunder; to sign all documents; to make all approvals and take all actions necessary or appropriate to carry out and implement the intent of this Resolution. At a meeting of the City Council on 12/9/2020, a motion was made by Vice Mayor Nagales, seconded by Councilmember Nicolas, that this Resolution be approved. The motion passed. Yes: 4 Mayor Addiego, Vice Mayor Nagales, Councilmember Nicolas, and Councilmember Coleman Attest by 4,tt,--,L osa Govea Acosta, City Clerk City of South San Francisco Page 2 ACCESS AND PERMIT AGREEMENT This ACCESS AND PERMIT AGREEMENT (this “Permit”) is made and entered into as of ______________, 2020 (the “Effective Date”), by and between the City of South San Francisco, a municipal corporation (the “City”), and San Mateo County Flood and Sea Level Rise Resiliency District, a California special district (“District”). RECITALS A.The District is the owner of certain real property within Colma Creek Flood Control Zone, including the right of way within the Colma Creek Flood Control Channel located in the incorporated limits of the City, as described more particularly on Exhibit A attached to this Agreement (the “Permit Area”). B.The City is undertaking the Orange Memorial Park Storm Water Capture Project (“Project”), which will provide water quality improvements meeting National Pollutant Discharge Elimination System (NPDES) requirements pursuant to the San Francisco Bay Municipal Regional Stormwater Permit (Order R2-2009-0074, NPDES Permit No. CAS612008, October 14, 2009), including reducing PCB and mercury discharge into the San Francisco Bay. The Project would capture and treat approximately sixteen (16) percent of the annual drainage from approximately 6,500 acres of land in the City of South San Francisco, Town of Colma, the City of Daly City, and a portion of unincorporated San Mateo County. C.As a part of the Project, the City needs to install an instream diversion structure and overflow pipe at the upper end of the Colma Creek Flood Control Channel (Channel) within Orange Memorial Park (“Facilities”). These Facilities are located within the District’s right of way in the Permit Area, and will be constructed as permanent fixtures. The City requires access to the Permit Area to construct, install, operate, maintain and repair the Facilities. D.The Project, including the construction, modification and removal of the Facilities, is subject to various federal, state and local regulatory oversight and the City has obtained regulatory approvals and permits that are necessary to commence Project construction, including permits from the California Department of Fish and Wildlife, California State Water Resources Control Board, the U.S. Army Corps of Engineers, and the California Department of Transportation. E.In 2019, the City submitted plans and designs of the Facilities to the San Mateo County Flood Control District, predecessor to the District. On October 15, 2020, the City provided detailed plans of the Facilities to the District for review, and the City agrees to construct the Facilities in accordance with such submitted plans and designs, the City’s standard engineering practices, and all applicable laws and regulations. F.To facilitate the construction of the Facilities and to complete the Project, the City desires to obtain the District’s permission to locate the Facilities in the Permit Area and to provide for the construction, operation, and maintenance activities and related purposes by City and its contractors, agents, and employees over the Permit Area, and District desires to grant such access and permit pursuant to the terms contained herein. EXHIBIT A 2 AGREEMENT NOW THEREFORE, in consideration of the promises set forth in this Permit and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, City and District agree as follows: 1. GRANT OF PERMIT. District grants to City a permit to access the Permit Area and to construct the Facilities within the Permit Area, and to operate, maintain and repair the Facilities within the Permit Area after it has been constructed (collectively, the “Permitted Use”), subject to the terms and conditions set forth in this Permit. This Permit gives City a license only, and nothing in this Permit shall be construed as granting or creating any additional rights pursuant to any federal, state or local laws. Upon the Commencement Date of this Permit, the use and enjoyment of the Permit Area by City shall be governed by and subject to the terms and conditions of this Permit. 2. RIGHTS OF EGRESS AND INGRESS. City shall have the non-exclusive rights of ingress and egress across District property to conduct the Permitted Use under this Permit, provided that such ingress and egress activity shall not impede or interfere unduly with District’s operations and use of District property, and which ingress and egress activity may be suspended by District if: (a) District provides written notice of such impediment or interference to City, and (b) such impediment or interference continues for seven (7) days after notice has been received by City. 3. GRANT OF OTHER EASEMENTS, LICENSES, CONVEYANCES, ENCUMBRANCES. District reserves the right to grant easements or crossings in, over, upon, and under the Permit Area, and nothing herein contained shall be construed as limiting the powers of District to lease, convey, or otherwise transfer or encumber during the term of this Permit the lands described in this Permit for any purposes whatsoever, provided that such lease, conveyance, transfer or encumbrance do not impede or interfere with the Facilities’ location, structural integrity or operation, or with the City’s ability to carry out the Permitted Use within the Permit Area. 4. TERMINATION. a. This Permit shall continue in full force and effect unless: i. The Facilities become obsolete and no longer serves the Project’s purpose, as determined by the City Engineer. In that event, City shall provide the District with sixty (60) days’ advance notice of the proposed termination. ii. The Permitted Use or the Facilities impede or interfere unduly with District’s operations or use of District property, and such impediment or interference continues for thirty (30) days after notice of such impediment or interference by District. b. Upon termination of this Permit, City and District will meet and confer regarding whether the Facilities are to be sealed and abandoned in place, or to be removed and the steps to facilitate such removal. If after meeting and conferring the Parties are unable to reach an agreement regarding abandonment or removal of the Facilities, City shall remove all Facilities, as well as any equipment and other improvements in the Permit Area, and shall cause the Permit Area 3 to be in the same condition as when received, provided that City shall not be responsible for damages by fire, earthquake, other natural disasters, act of God, or circumstances beyond its control and that cannot be reasonably anticipated or mitigated. c. Notwithstanding the foregoing, District may also terminate the Permit upon the occurrence of an Event of Default (as defined below in Section 11) for which the City fails to provide a timely cure or to initiate cure as provided in Section 11. 5. PERMITTED USE. City shall use the Permit Area for the Permitted Use and for no other purpose. a. No Exclusivity. City acknowledges and agrees that City has no exclusive rights under this Permit except as provided herein. b. Prohibited Activities. Without limiting any other provision of this Permit, City shall not without the prior written consent of District: (a) cause or permit anything to be done, in or about the Permit Area, or bring or keep anything thereon which might (i) create a nuisance as defined under applicable laws; (ii) in any way obstruct or interfere with District’s rights or third- party rights on District properties; (b) commit or suffer to be committed any waste upon the Permit Area; or (c) use, or allow the Permit Area to be used, for any illegal purpose in violation of applicable laws. c. Inspection. District may cause the Permit Area and City’s Permitted Use to be inspected at any time to ensure compliance with this Permit including that the Facilities are constructed in accordance with the approved plans and designs dated October 15, 2020. Moreover, City agrees to share with District, upon written request by District, all data collected by the Facilities installed pursuant to this Permit. 6. NO ASSIGNMENT. City shall not assign, encumber, or otherwise transfer (“Transfer”), whether voluntary or involuntary or by operation of law, the Permit Area, this Permit, or any right hereunder, without District’s prior written consent, which consent may be granted or denied in District’s sole and absolute discretion. District’s consent to one Transfer shall not be deemed a consent to subsequent Transfers. Any Transfer made without District’s consent shall constitute a default hereunder and shall be voidable at District’s election. 7. COMPLIANCE WITH LAWS. a. General Obligation. At all times, City shall cause the Permit Area and the Permitted Use to comply with all present and future applicable federal, state and local laws, rules, regulations, and ordinances, as the same may be amended from time to time, whether foreseen or unforeseen, ordinary as well as extraordinary. b. California Environmental Quality Act. City agrees that for purposes of the California Environmental Quality Act, Public Resources Code Section 21000, et seq. (“CEQA”), and the CEQA Guidelines, 14 Cal. Code Regs. Section 15000, et seq., City is the “Lead Agency” for the Project and will comply with all CEQA requirements before installing the Facilities pursuant to this Permit. 4 8. WAIVER; INSURANCE; INDEMNITY. a. Waiver. City, on behalf of itself and its successors and assigns, waives its rights to recover from and forever releases and discharges District and its employees, officers, board members, agents, and representatives, and assigns, from any and all losses liabilities, judgments, suits, claims, damages, costs, and expenses (including reasonable attorneys’ fees, investigation costs, remediation costs, and court costs), of any kind or nature (“Losses”) whether direct or indirect, known or unknown, foreseen or unforeseen, that may arise on account of or in any way be connected with: (a) the Permitted Use; (b) the physical and environmental condition of the Permit Area; (c) the City’s performance of its obligations under this Permit; (d) any damage suffered or sustained by City or any person whosoever may at any time in connection with the Permitted Use; and (e) any act or omission (whether negligent, non-negligent, or otherwise) of City with respect to the Permitted Use or the Facilities, whether or not such Losses are caused in part by an act, or omission of District or its employees, officers, board members, agents, and representatives, except to the extent such Losses are caused by the sole negligence or willful misconduct of District and/or its employees, officers, board members, agents, and representatives. In connection with the foregoing waiver, City expressly waives the benefits of California Civil Code Section 1542, which provides as follows: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY. b. Indemnity. In addition to, and not in limitation of the foregoing, City shall forever indemnify, defend, hold, and save District and/or its employees, officers, board members, agents, and representatives free and harmless of, from, and against any and all Losses caused in whole or in part by (a) any act or omission of City with respect to the Permitted Use, (b) City’s operations on the Permit Area whether or not Losses are caused in part by any act or omission of District or its employees, officers, board members, agents, and representatives or (c) any default by City hereunder. The foregoing indemnity shall not extend to any Loss caused by the sole negligence or willful misconduct of District. The rights and obligations in this indemnity provision shall survive the life of this Permit. c. Insurance. City shall procure and maintain the following insurance, or be self-insured pursuant to California Government Code, as follows: (i) Commercial General Liability Insurance with limits not less than $1,000,000 each occurrence Combined Single Limit for Bodily Injury and Property Damage. (ii) Workers Compensation Insurance with Employer’s Liability limits not less than $1,000,000 each accident, together with adequate provision for Social Security and Unemployment Compensation. 5 (iii) Business Automobile Liability Insurance with limits not less than $1,000,000 each occurrence Combined Single Limit for Bodily Injury and Property Damage, including owned, non-owned and hired automobile coverages, as applicable. (iv) Property Insurance on improvements, fixtures, and equipment insuring against the perils of fire, lightning, extended coverage perils, vandalism, and malicious mischief in the Permit Area in an amount equal to the full replacement value of tenant improvements, fixtures, and equipment. (v) As to all above required insurance policies, District shall be named as an additionally-insured and City shall provide proof of such insurance upon request by District. Moreover, notwithstanding anything to the contrary herein, City waives any right of recovery against District for any loss or damage to the extent the same is covered by City’s insurance. City shall obtain from its insurer, if possible, a waiver of subrogation the insurer may have against District in connection with any Loss covered by City’s property insurance policy. 9. FACILITIES; ALTERATIONS AND IMPROVEMENTS. a. Facilities. The City agrees to construct the Facilities in accordance with plans and designs submitted to the District on October 15, 2020, the City’s standard engineering practices, and all applicable laws and regulations. b. Improvements. In addition to construction of the Facilities and subject to the provisions of Section 9.c below, City at its own expense may construct, place, install or erect on the Permit Area any improvements, make any alterations, additions, or improvements thereto, and install all fixtures and equipment therein related to the Permitted Use (collectively “Alterations”). Additionally, with the prior written consent of District, City at its own expense may construct, place, or erect on the Permit Area City’s trade fixtures, specialty equipment, furnishings, finishes, or other necessary improvements to Permit Area and thereafter, to alter, modify, or enlarge the same. c. District’s Approval Rights with Respect to Alterations. City shall not make or suffer to be made any Alterations without District’s prior written consent. City shall cause all such Alterations to be performed in a workmanlike manner and in compliance with the City’s standard engineering practices and all applicable laws. After receiving District’s written consent to any Alterations, prior to the construction of such Alterations, City shall submit detailed plans and specifications to the District for approval, whose approval shall not be unreasonably withheld, and shall require all contractors and their subcontractors constructing/effecting such Alterations to maintain evidence of insurance meeting the requirements of Section 8(c) above, as well as all licensing and bonding as required by applicable laws. District agrees to act within thirty (30) days upon receipt of such plans and specifications and upon requests for approval of Alterations in said plans or specifications. If the District does not take any action or notify City of any comments or revisions to such plans and specifications, the District shall be deemed to have approved the proposed Alterations. d. Notice and Permits. City shall give written notice to District not less than seven (7) days prior to the commencement of any Alterations work. City shall obtain and pay all 6 fees for all permits required for Alterations, and shall furnish copies of all such permits to District prior to the commencement of any work. d. Exercise of Due Care. City shall use due care at all times to avoid any direct or indirect damage or harm to District’s property within the Permit Area. e. Restoration of Permit Area. Any damage to existing concrete channel, walls and banks, box culverts, pavement, underground facilities, or other improvements belonging to District resulting from the City carrying out the Permitted Use shall be repaired to the satisfaction of District by City at City’s expense. City shall promptly backfill any trench made by it on the Permit Area so as to leave the surface of the ground as nearly normal as practical, and restore pavement and landscaping to its original condition. Immediately following completion of any work permitted hereunder, City shall remove all debris and any excess dirt and restore the Permit Area to its condition immediately prior to City’s use hereunder, to the satisfaction of District. If applicable, City shall restore excavated areas with new vegetation (including irrigation and maintenance until established) and erosion control netting, all as requested by District. f. Installation of Above-Ground Markers. City shall install above-ground markers identifying the location of any underground Alterations installed pursuant to this Permit. g. As-Built Drawings. Promptly upon completion of the installation of the Facilities and/or Alterations, City shall furnish District with as-built drawings and other documentation requested by the District depicting the improvements. In the event that Permittee or its agents or consultants prepares any environmental, seismic, geophysical, or other written report relating to the Permit Area and/or any work performed thereon, City shall furnish to District a complete copy of such report, including any schedules, exhibits and maps, promptly upon completion of the same. 10. MAINTENANCE. a. As-Is Condition. City specifically acknowledges and agrees that District is permitting the Permit Area to City on an “As Is With All Faults” basis and that City is not relying on any representations or warranties of any kind whatsoever, express or implied, from District as to any matters concerning the Permit Area, including: (i) the quality, nature, adequacy, and physical condition and aspects of the Permit Area including landscaping, (ii) the quality, nature, adequacy, and physical condition of soils, geology, and any groundwater, (iii) the existence, quality, nature, adequacy, and physical condition of utilities serving the Premises, (iv) the development potential of the Permit Area, and the Permit Area’s use, habitability, merchantability, or fitness, suitability, value, or adequacy of the Premises for any particular purpose, (v) the zoning or other legal status of the Permit Area or any other public or private restrictions on use of the Permit Area, (vi) the compliance of the Permit Area or its operation with any applicable codes, laws, regulations, statutes, ordinances, covenants, conditions, and restrictions of any governmental or quasi-governmental entity or of any other person or entity, (vii) the presence of hazardous materials on, under, or about the Permit Area or the adjoining or neighboring property, (viii) the quality of any labor and materials used in any improvements on the real property, (ix) the condition of title to the Permit Area, and (x) any agreements affecting the Permit Area. 7 b. City’s Maintenance Obligations. City, at all times and at City’s sole cost and expense, agrees to maintain the Facilities authorized to be installed by this Permit and all other Alterations in good order and repair, to inspect the equipment as necessary, including after every storm event, and to repair and replace the equipment and/or other Alterations as necessary. 11. DEFAULT; REMEDIES a. Event of Default. The occurrence of any one or more of the following events shall constitute a breach of this Permit and an “Event of Default” hereunder: i. City Transfers the Permit without the prior approval of the District; or ii. City abandons, deserts, or vacates the Permit Area and/or the Facilities installed pursuant to this Permit or other Alternations other than as provided in Section 4 above and such abandonment continues for a period of more than thirty (30) days from written notice of such failure by District; or iii. A lien has been filed against the Permit Area as a result of an act or omission of City, and has not be discharged or contested by City in good faith by proper legal proceedings within twenty (20) days after receipt of notice of such lien by City; or iv. City fails to obtain and maintain the insurance required under this Permit or provide copies of the policies or certificates to District as required and such failure continues for a period of more than thirty (30) days from written notice of such failure by District; or v. City fails to keep, perform, and observe each and every other promise, covenant, and agreement set forth in this Permit, and such failure continues for a period of more than thirty (30) days from written notice of such failure by District. b. Remedies. Upon the occurrence and during the continuance of an Event of Default and expiration of the applicable cure periods, District shall have, in addition to all other rights and remedy available to it under the law, the following remedies: i. The right to terminate this Permit; ii. For any failure to keep, perform, and observe each and every other promise, covenant, and agreement set forth in this Permit that continues for a period of more than thirty (30) days from notice of such failure by District as set forth above in Section 11(a)(v), District may, without any obligation to do so, perform any necessary repairs and/or correct failures at City’s expense, which expense City shall pay to District within thirty (30) days upon demand by District. iii. Nothing in this Paragraph 11.b shall be deemed to limit the Parties’ right to terminate this Permit as provided above in Section 4 [TERMINATION]. 8 12. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of California. 13. NOTICES. All notices and demands which either party is required or desires to give to the other shall be given in writing by certified mail, return receipt requested with appropriate postage paid, by personal delivery, by facsimile or by private overnight courier service to the address or facsimile number set forth below for the respective party, provided that if any party gives notice of a change of name or address or number, notices to that party shall thereafter be given as demanded in that notice. All notices and demands so given shall be effective upon receipt by the party to whom notice or demand is being given, except that any notice given by certified mail shall be deemed delivered three (3) days after deposit in the United States mail. If to District: San Mateo County Flood and Sea Level Rise Resiliency District 1700 S. El Camino Real, Suite 502 San Mateo, CA 94402 Attn: Len Materman, Chief Executive Officer If to the City: City of South San Francisco 400 Grand Avenue South San Francisco, CA 94080 Attn: Eunejune Kim, Public Works Director 14. SEVERABILITY. Each provision of this Permit is intended to be severable. If any term of provision shall be determined by a court of competent jurisdiction to be illegal or invalid for any reason whatsoever, such provision shall be severed from this Permit and shall not affect the validity of the remainder of this Permit. 15. COUNTERPARTS. This Permit may be executed in counterparts, each of which shall be deemed an original, but all of which, taken together, shall constitute one and the same instrument. 16. ENTIRE AGREEMENT. This Permit constitutes the entire agreement among the parties hereto with respect to the subject matter hereof, and supersedes all prior understandings or agreements. 17. NO IMPLIED WAIVER. No failure by either party to insist upon the strict performance of any obligation of the other party under this Permit or to exercise any right, power, or remedy consequent upon a breach thereof shall constitute a waiver of any such breach or of such term, covenant or condition. No express written waiver of any default or the performance of any provision hereof shall affect any other default or performance, or cover any other period of time, other than the default, performance or period of time specified in such express waiver. 18. AMENDMENTS. Except as specifically provided herein, neither this Permit nor any term or provisions hereof may be changed, waived, discharged, or terminated, except by a written instrument signed by both parties. 9 19. MUTUAL NEGOTIATION. This Permit has been the subject of negotiations by the parties, and this Permit will not be construed for or against any party merely because of such party’s involvement in its initial preparation and negotiation. [Signature Pages Follow] Signature Page IN WITNESS WHEREOF the parties have executed this Agreement as of the Effective Date written above. THE CITY: CITY OF SOUTH SAN FRANCISCO, a municipal corporation By: Mike Futrell City Manager [Signature Page Continues] Signature Page THE DISTRICT: SAN MATEO COUNTY FLOOD AND SEA LEVEL RISE RESILIENCY DISTRICT By: Len Materman Chief Executive Officer Signature Page EXHIBIT A Permit Area The Permit Area encompasses the entire Colma Creek Right-of-Way within the City of South San Francisco’s Orange Memorial Park between the eastern property line of the Peninsula Pines parcel and the West Orange Avenue right-of-way, and an approximate 130-feet long by 50-feet wide area immediately east of the West Orange Avenue bridge that includes the existing maintenance access ramp down to the creek. The total area is 1.60 acres and measures 50-feet wide by an approximate average length of 1,394 feet. 3635417.2 ELELICVICV WM ICV WT VLTGBFPBFPWTR BFP BFP WTRW ICVICVICVICVICVAWTBFP BFP BFP ICV ICV B F P WMICV MM COLMA CREEK W ORANGE AVE(E)RECREATION FIELDS (E)BLDG MEMORIAL D R CENTENNI A L W A Y T R A I L (E)PICNIC AREA CENTENNIAL WAY DOG PARK ORANGE AVE(E) BALL FIELDS (E)BOCCE BALL COURTS (E)RECREATION BLDG SISTER CIT I E S P A R K MYRTLE AVE N CANAL ST COLMA CR E E K EXHIBIT A.1 ORANGE MEMORIAL PARK STORM WATER CAPTURE PROJECT DRAWING NUMBER: DRAWN BY: DATE:SCALE: CHECKED BY:EX-A©Lotus Water. PENINSULA PINES PARCEL LEGEND