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D. Owner desires to abandon in place the shoring piles at least five feet below grade
<br />and leave the anchors permanently in the Right -of -Way, and City agrees to such abandonment
<br />subject to the terms and conditions herein.
<br />E. City and Owner desire to enter into this Agreement to set forth an exception to
<br />Special Provision No. 9 of the Encroachment Permit. In addition, City and Owner desire to set
<br />forth the agreement between the Parties with respect to Owner's obligations regarding the
<br />Improvements to be abandoned in place, including the portions of Owner's Improvements that
<br />must be removed, Owner's waiver, release and hold harmless, and the costs of removal.
<br />AGREEMENT
<br />NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are
<br />hereby acknowledged, City and Owner hereby agree as follows:
<br />1. Removal of Improvements. Upon completion of the construction of the building
<br />located at 1601 El Camino Real Parcel E, and prior to issuance of a Certificate of Completion,
<br />Owner shall remove all Improvements, including shoring and anchors, installed or placed in the
<br />Right -of -Way within and above five feet of natural grade.
<br />2. Improvements to Remain in Right -of -WE. Notwithstanding Special Provision No.
<br />9 of the Encroachment Permit, Owner may abandon in place only those Improvements located
<br />more than five feet below grade, subject to the terms and conditions herein.
<br />3. Reimbursement for Costs of Future Removal. Owner agrees and acknowledges
<br />that a portion of the Improvements will remain and be located within the Right -of -Way and that
<br />City may, from time to time, perform work and maintenance within the Right -of -Way, which work
<br />or maintenance may require the removal of the remaining Improvements. Prior to issuance of the
<br />Encroachment Permit, Owner shall pay to the City a lump sum payment of Ninety Three Thousand
<br />Seven Hundred Fifty and NO/100 ($93,750.00) to compensate City for potential future removal of
<br />the Improvements, including anchors.
<br />4. Waiver and Release. Owner agrees and acknowledges that a portion of the
<br />Improvements will remain and be located within the Right -of -Way and that City may, from time
<br />to time, perform work and maintenance within the Right -of -Way, which work or maintenance may
<br />damage buildings and structures located on the property adjacent to the Improvements. To the
<br />fullest extent provided by law, Owner, for itself, its assigns and successors in interest, hereby fully
<br />waives, releases and discharges the City, and its officers, officials, employees, volunteers, agents,
<br />consultants, attorneys, and representatives ("City Parties"), from any and all claims, liens,
<br />demands, causes of action, actions, debts, damages and liabilities, including attorneys' fees and
<br />costs ("Claims") related to, caused by or arising from the removal of the Improvements or the
<br />presence of the Improvements during work within the Right -of -Way performed by City or its
<br />contractors. Such Claims include without limitation damage to waterproofing or the foundation of
<br />any structure on the Property. This waiver and release includes all Claims whether at this time
<br />known or unknown, anticipated or unanticipated, direct or indirect, fixed or contingent. Owner
<br />expressly waives and relinquishes any and all rights and benefits under Section 1542 of the Civil
<br />REV: 04-07-2022 SK
<br />ATTY/AGR.2022.068/South Main (Page 2 of 5)
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