HomeMy WebLinkAboutReso 68-2022 (22-323)Page 1 of 9
AGREEMENT FOR CONSTRUCTION AND REIMBURSEMENT FOR
RELOCATING AND CONSTRUCTING SEWER IMPROVEMENTS
This Agreement for Construction and Reimbursement for Relocating and Constructing 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 US 180
EL CAMINO OWNER, LLC, a Delaware limited liability company ("El Camino Owner"), this
_____ day of ___________, 2022 (“Effective Date”), with reference to the facts set forth in the
Recitals below.
RECITALS
A. El Camino Owner is the owner of a 14.5-acre parcel located at 180 El Camino Real, South
San Francisco, with frontages on El Camino Real and South Spruce Avenue. The site is
surrounded by various existing commercial and single-family residential uses to the north,
east and west, and by proposed multi-family residential developments to the south.
B. El Camino Owner is currently undertaking a project where it proposes to subdivide the 14.5-
acre site into one (1) 3.29-acre development parcel (“Project Site”) and one (1) 11.21-acre
remainder parcel (“Remainder Parcel”), and to construct approximately 74,600 square feet
of commercial development including a new Safeway store and ancillary commercial uses on
the 3.29-acre parcel (collectively, “Project”).
C. Due to the location and layout of the Project Site, the construction of the new Safeway store
building would require El Camino Owner to relocate an existing 10-inch underground sewer
main and line, currently owned and maintained by the City and that is situated across the
entire site (“Existing Sewer Line”), to the Project’s future internal drive aisle location.
Specifically, El Camino Owner is proposing to re-locate the Existing Sewer Line to the other
side of the Project Site in closer proximity to Noor Avenue, all as depicted more particularly
in Exhibit A, attached hereto and incorporated herein.
D. Additionally, in order to accommodate the additional flow that would result from the Project’s
commercial and ancillary uses, it would be necessary for El Camino Owner to upsize the
Existing Sewer Line from 10-inch to a 15-inch pipe.
E. The Existing Sewer Line has been identified as requiring upsizing and other realignment work
as a part of the City’s Capital Improvements Program (CIP). The City anticipated to upsize
the Existing Sewer Line to a 12-inch pipe as contemplated by the CIP.
F. Because of the close proximity to the Project Site and the need to upgrade the sewer facilities
adjacent to the Project Site to accommodate the additional flow impact resulting from the
Project, the City has also requested that El Camino Owner extend the upsizing of the Existing
Sewer Line to a manhole located on Huntington Avenue, as described further below and more
particularly in Exhibit A (“Huntington Avenue Realignment”).
G. Collectively, the sewer improvement work that El Camino Owner would be performing in
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connection with the Project would be as follows, which are described more particularly in
Exhibit B (collectively, “Sewer Improvements”):
1. Existing Sewer Line
a. Upsizing the Existing Sewer Line to a 15-inch line; and
b.Remove certain portions of the Existing Sewer Line (i.e., foundations), as
necessary to complete the foregoing work.
2. Huntington Avenue Realignment
a. Extend the Existing Sewer Line from the Project Site to Huntington Avenue
and upsize that extended segment from its original 10-inch size to a 12-inch
line;
b. Upsizing the segment of sewer line at Huntington Avenue from 8-inch to 12-
inch; and
c. Design and potholing work for the foregoing sewer work at Huntington
Avenue.
H. El Camino Owner agrees to construct the Sewer Improvements so long as El Camino Owner
is reimbursed for the work equal to:
1. The portion of the estimated cost of the City’s financial responsibility covering the
upsizing of the Existing Sewer Line to a 12-inch line; plus
2. The actual reasonable costs of the Huntington Avenue Realignment as described in
Recital G(2)(a)-(c).) Collectively, the amounts in this Recital H (1) and (2) are
hereinafter referred to as the “Reimbursement”. (such amounts in 1 and 2 above,
collectively, the “Reimbursement”).
As described further below, the Reimbursement reimbursement payable to El Camino Owner
shall be granted to El Camino Owner through a credit in the full amount of the unpaidthe
Reimbursement to be applied to the Sewer Capacity Fee due and payable by El Camino
Owner for the Project and all future developments that may be proposed and permitted at the
Remainder Parcel, at the time of their respective building permit issuances
(“Reimbursement”)..
I. The City is agreeable to El Camino Owner constructing the proposed Sewer Improvements
subject to El Camino Owner submittal of plans and cost estimates and approval by the City
thereof, and Reimbursement to El Camino Owner as referenced Item Recital H above and as
set forth in Section 1 below. .
NOW, THEREFORE, in consideration of the mutual promises contained herein, the parties
agree as follows:
AGREEMENT
1. Construction and Reimbursement for Sewer Improvements. The City approves El
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Camino Owner's proposed construction of the Sewer Improvements and agrees to Reimburse El
Camino Owner as follows:
a) As authorized by this Agreement, El Camino Owner agrees to submit plans and
specifications prior to construction of the Sewer Improvements for approval by the
City Engineer including approval for design. El Camino Owner agrees to construct the
Sewer Improvements in accordance with the plans and specifications that have been
approved by the City and complete the Sewer Improvements within one (1) year of
the execution of this Agreement., subject to extension for matters outside the
reasonable control of El Camino Owner that cannot be anticipated and mitigated with
El Camino Owner’s due diligence. Upon completion of construction by El Camino
Owner, the City shall have the right to inspect and accept the Sewer Improvements for
compliance with the approved plans and specifications, which acceptance shall not be
unreasonably withheld, as a condition of Reimbursement.
b) City agrees to issue a Reimbursement to El Camino Owner, within thirty (30) days of
the City's receipt of substantiating documentation from El Camino Owner and
reasonable approval by the City of the completion thereof, demonstrating:
i. The amount of Sewer Capacity Fee due at the time of building permit issuance
for the Project or for subsequent development(s) that have received Planning
entitlements at the Remainder Parcel at a future date; and
ii. The actual reasonable cost of completing the Sewer Improvements based on:
(1) the portion of the estimate cost of the City’s financial responsibility
covering the upsizing of the Existing Sewer Line to a 12-inch line, plus (2)
the actual reasonable costs of the Huntington Avenue Realignment work (the
“Reimbursement Amount”).
The Reimbursement Amount, based on cost estimates previously approved
by the City, is estimated to be approximately $869,768.00. Summary of the
costs are shown on the table below:
Design Cost $52,080
Construction Cost $743,353
Construction Contingency (10%) $74,335
Reimbursement Amount $869,768
The Reimbursement Amount shall be drawn down by the amount of Sewer
Capacity Fee that is due for the Project or any Planning-entitled future
development at the Remainder Parcel, until the Reimbursement Amount is
reduced to zero.
c) If City property is destroyed or damaged by reasons of El Camino Owner’s
construction of the Sewer Improvements as authorized by this Agreement, El Camino
Owner shall repair, replace, or pay for the repair or replacement, of such destroyed or
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damaged property at its sole cost and expense.
2. Hold Harmless and Indemnification. To the fullest extent permitted by law, El Camino
Owner 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 construction of the activities performedcarrying out the Sewer Improvements by or on behalf of or on behalf of SteelwaveEl Camino Owner as authorized by pursuant
to this Agreement, except to the extent any such Liability arises out of or is is caused by the negligence or willful
misconduct of the City Indemnitees.
3. No Relief of Other Obligations. This Agreement does not relieve El Camino Owner
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 El
Camino Owner from obtaining all required entitlements, permits, authorizations, or other approvals
for any other work proposed at the Project Site or at the Remainder Parcel in the future.
4. Insurance. El Camino Owner shall maintain, or ensure that its contractors or
subcontractors maintain, during the life of this Agreement the following policies of insurance:
a) Worker’s Compensation and Employers’ Liability Insurance in the statutory coverage.
b) Commercial General Liability Insurance: In an amount not less than ONE MILLION
DOLLARS ($1,000,000) for injuries including, but not limited to, death to any one
person and subject to the same limit for each person; in an amount not less than TWO
MILLION DOLLARS ($2,000,000) combined single limit per occurrence for bodily
injury, personal injury and property damage.
c) Automobile Liability (Code 1) Insurance: In an amount not less than ONE MILLION
DOLLARS ($1,000,000) combined single limit per accident for bodily injury and
property damage.
d) 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 El Camino Owner as described herein.
Evidence of the insurance described above shall be provided to City upon execution
of this Agreement.
5. Default. In the event of default by El Camino Owner hereunder which is not cured
following written notice and an opportunity to cure, the costs and expenses of City for which El
Camino Owner shall be liable shall include but not be limited to the City’s costs of suit and reasonable
attorney’s fees if the City is the prevailing party in any such suit.
6. Independent Contractor. El Camino Owner is an independent contractor and nothing
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contained in this Agreement shall be construed as creating an employer/employee, joint venture, or
principal/agent relationship between City and El Camino Owner.
7. Severability. If any term or portion of this Agreement is held to be invalid, illegal, or
otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this
Agreement shall continue to be in full force and effect.
8. Term. This Agreement is effective upon execution unless otherwise modified in
writing by mutual agreement of the parties.
9. 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.
10. 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.
11. 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]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date written
above.
CITY OF SOUTH SAN FRANCISCO
By: __________________________
Mike Futrell, City Manager
Attest:
__________________________
City Clerk
Approved as to form:
__________________________
City Attorney
[SIGNATURES CONTINUE ON NEXT PAGE]
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US 180 El Camino Owner, LLC,
a Delaware limited liability company
By: US 180 El Camino Venture, LLC,
a Delaware limited liability company,
as sole member
By: US 180 El Camino Manager LLC,
a Delaware limited liability company,
as Administrative Manager
By: SW El Camino GP, LLC,
a Delaware limited liability company,
as Administrative Manager
By: SW El Camino Investments, LLC,
a Delaware limited liability company,
its managing member
By: SW El Camino Associates, LLC,
A Delaware limited liability company
its sole member
By: SteelWave, LLC,
a Delaware limited liability company,
its managing member
By:
Name:
Title:
Date:
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Exhibit A
(Description of sewer realignment work)
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Exhibit B
(Description of Sewer Improvements and Plans and Specifications)
5099936.3