CITY AND COUNTY OF SAN FRANCISCO
PUBLIC WORKS 

LOVE OUR NEIGHBORHOODS TIER 2 PROJECT AGREEMENT
(FOR MURALS, NEIGHBORHOOD STRING LIGHTING, AND COMMEMORATIVE PLAQUES)

This Love Our Neighborhoods Tier 2 Project Mural Agreement (“Agreement”) is entered into and agreed upon as of the ____ day of ____________ in the year ______ (the “Effective Date”) by ________________________ ( “Permittee” and “Steward”), as a condition of the installation and placement of [insert description of Encroachment] located on [insert approximate location] and as part of the terms and conditions of the Tier 2 Love  Permit No. _____________ (hereafter referred to as “Permit”) issued by the Department of Public Works (“Department”) of the City and County of San Francisco (“City).

As a condition of approval of the Permit, the Permittee acknowledges and agrees to comply with all the terms, conditions, and restrictions specified in the conditions of the Permit, in this Agreement, and in Exhibit A.

INFORMATION
Location Description: _______________________ (the “Encroachment”).
Project Description & Materials:  ___________________________________________.
DEFINITIONS 

•	“City Agency” means any City department including but not limited to the SFPUC and SFMTA, and any City authorized contractor or agent, or their sub-contractor.

•	“City Standard Materials” means the “Standards and Specifications” that have been approved or adopted by the Department, as set forth on the Department’s website (https://sfpublicworks.org/services/standards-specifications-and-plans) and as may be amended from time to time.

•	“Construction Plans” means engineered construction plans approved by the Department.

•	“Encroachment” means the Mural and any and all materials or elements that are not owned by the City and are installed by the Permittee in the public right-of-way and are occupying or obstructing the public right-of-way.

•	“Inspection” means the Department’s use of visual observation, sampling and testing, and/or any other methods deemed necessary by the City Engineer to determine that materials, elements, and fixtures have been constructed or installed per the approved plans and City standards.

•	“Maintenance” means Cleaning and Restoration, as defined below.
o	“Cleaning” includes but is not limited to sweeping, removing graffiti, removing trash and debris or 
o	“Restoration” includes but is not limited to removing patching or temporary materials, resurfacing, repairing scuffed or scratched materials, elements, or fixtures and installation of standard or non-standard materials per City Standards.

•	“Non-Standard Materials” means materials that are not City Standard Materials.

•	“Permitted Activities” means Permittee’s permission to perform maintenance, repair and replacement tasks under this Permit.

•	“Permit Area” means the portions of public right-of-way in which the Permitted Activities are authorized under this Permit.

•	“Permittee” means the recipient or transferee, as authorized by the City, of the Permit.

•	“Public Utility” means any company or entity currently holding a valid Utility Conditions Permit (“UCP”) or a valid franchise with the City or the California Public Utilities Commission.

TERMS, CONDITIONS, AND RESTRICTIONS

1.	General Acknowledgement; Revocability.  Permittee acknowledges the Permit confers permission that is revocable by the City due to any public purpose. In addition, the City may revoke the Permit or take enforcement actions, including but not limited to, the assessment of administrative penalties, against Permittee due to Permittee’s failure to comply with the Permit, including any terms, conditions, and restrictions herein (together the “Permit Requirements”).  Public Works’ issuance of the Permit for Permittee’s post-construction occupancy and maintenance is conditioned upon the agreement that Permittee, and its successors or assignees, shall perform or cause to be performed all terms of this Agreement and to comply with all applicable laws, ordinances, and regulations. 

2.	Construction According to Permit and Other Requirements. The Permittee acknowledges its responsibility to construct the Encroachment in the location as specified by the plans submitted to, revised at the instruction of, approved by, and filed with the Department.  Permittee shall comply with all requirements of construction, occupancy, maintenance, and liability of the encroachment as specified in this Agreement, Public Works Code Articles 2.4 (Excavation in the Public Right-of-Way), Article 15 Miscellaneous, Sections 723.1, 723.2, and 789 et seq., and as directed by the Director.
   
3.	Other Required Permits.  The Permittee acknowledges its responsibility to obtain all required permits from the Department or other public agencies as necessary to perform or cause to be performed any work within the dedicated public right-of-way including but not limited to the installation and/or removal of any portion of the Mural.

4.	Maintenance:  The Permittee acknowledges its maintenance responsibility associated with the Permit includes, but is not limited to, maintaining the Mural, reapplying any required non-slip coatings at manufacturer’s specified intervals, repairing damage to the Mural, removing graffiti from the tiles and graffiti immediately adjacent to the tiles, and restoring or replacing any portion of the Mural.  

5.	Non-Exclusivity. The Permittee acknowledges the Permit does not grant the Permittee exclusive rights to occupy, encroach, and excavate/construct within the permitted area as described in the Permit, and does not limit, prevent, or restrict the Department from taking any City actions in the Permit Area or approving and issuing permits to third parties, including but not limited to occupancy, encroachment, and excavation permits, that would require the modification or removal of the Encroachment.

6.	Permittee’s Responsibility Following Excavation or Temporary Encroachment Upon Permit Area.  Permittee acknowledges its maintenance responsibility following any excavation or temporary encroachment of any portion or portions of the Permit Area as described below.
a.	Excavation by City or UCP Holders.  After providing public notice according to Article 2.4 of the Public Works Code, any City Agency or Public Utility may excavate within the underlying public right-of-way, which may include portions of the Permit Area.  Permittee acknowledges that it will provide and not obstruct access to any utilities and facilities owned and operated by any City Agency or a Public Utility at any time within the Permit Area for maintenance, repair, and/or replacement.  
b.	Emergency Work.  In the case of an emergency, a City Agency or Public Utility need not notify the Permittee of work required to abate the emergency situation until after the emergency situation has been abated, at which point the Department will strive to cooperate with affected City Agency to provide written notice to the Permittee concerning the emergency work.
c.	Excavation By City Agency or Public Utility.  In the performance of any excavation in the Permit Area by a City Agency or Public Utility, it shall be the responsibility of the Permittee to coordinate with the City Agency or Public Utility and restore the site to the condition specified on the Construction Plans, provided, however, the excavator shall implement commercially reasonable precautions to protect the Permit Area and any Improvements located within the Permit Area from injury or damage during the excavation or future work.  Following excavation by a City Agency or Public Utility, (a) in the case where there are Non-Standard Materials the excavator shall only be obligated to backfill and patch the site to a safe condition; (b) in the case there are only City Standard Materials the excavator shall be obligated to backfill the site to a safe condition, and where feasible restore the site to City Standards. The City Agency or Public Utility shall not replace Non-Standard Materials or Improvements that the City may remove or damage in connection with such excavation or site access.  Permittee shall be responsible for and bear all costs for the restoration of all disturbed Improvements to the condition as specified on the Construction Plans.

7.	In the case where the excavated portion of the Permit Area consists of only City Standard materials, the City Agency or Public Utility shall complete its restoration following the completion of the excavation or temporary encroachment using Standard materials.  

8.	In the case where the excavated portion of the Permit Area consists partially or fully of Non-Standard materials, the City Agency or Public Utility are not required to restore the excavated portion of the Permit Area to the condition specified on the design for the Improvements.  The Permittee shall restore or cause the excavated portions of the Permit Area to be restored to the condition specified on the design for the Improvements as quickly as reasonably possible but within ninety (90) calendar days following the completion of the excavation; provided, however, to the extent that such restoration cannot be completed using commercially reasonable efforts within such ninety (90) calendar day period, then the Department shall extend such period provided that the Permittee has commenced and is diligently pursuing such restoration. 

9.	The Permittee shall not seek or pursue compensation from a City Agency or a Public Utility for Permittee’s coordination of work or the inability to use of the Permit Area for the duration of excavation or occupancy.

10.	Abatement of Dangerous, Blighted, or Damaged Conditions; Permittee’s Restoration. The Permittee acknowledges its responsibility to abate or make safe any dangerous or hazardous conditions (e.g., slip, trip, and fall hazards), or any damaged or blighted conditions associated with or caused by the Encroachment, immediately upon becoming aware of the dangerous or hazardous condition.  The Permittee shall immediately place or cause to be placed temporary barriers to protect the public while the subject condition (excluding graffiti) remains unabated.  In addition, where the Encroachment is damaged, the Permittee shall restore the Encroachment to the condition required by the Department.
a.	If the permittee abates any unsafe, damaged, or blighted condition within 24-hours, the Department of Public Works will not require a permit to perform required work. 
b.	If the permittee requires more than 24 hours to abate the subject condition, Permittee shall ensure that a temporary barrier remains in place at all times prior to the full abatement of the dangerous, hazardous, or damaged condition and shall restore the site to the condition specified on the approved plan within thirty (30) calendar days unless the Department specifies a shorter or longer compliance period based on the risk posed by the subject condition.    
c.	Failure to respond to or abate a dangerous, hazardous, or damaged condition to the Department’s satisfaction within the thirty (30) day time period, unless the Department specifies a shorter or longer compliance period, may result in the Department performing the temporary repair or restoration at the Permittee’s sole cost, the Department’s issuance of a Notice of Violation, and/or the Department’s request for reimbursement costs or fees for departmental services necessary to abate the condition.
d.	Permittee shall use due care at all times to avoid causing damage to the sidewalk, or any fixtures, encroachments, or City property.  If any of the Permitted Activities or Permittee’s other activities on or about the Permit Area causes such damage, Permittee shall notify City.  If directed by City to restore such damaged property or the Permit Area to the condition it was in prior to the commencement of Permittee’s activity, Permittee shall do so to the Director’s satisfaction; alternatively, if the City chooses to restore the damaged property, Permittee shall reimburse City for its costs of restoration.

11.	Reimbursement of Department Costs.  The Permittee acknowledges its responsibility to reimburse the Department for any work performed by the Department as a result of the Permittee’s failure to comply with the maintenance and restoration terms as specified herein.

12.	Liability.  Permittee is wholly responsible for the quality of the work performed in the public right-of-way, and the Permittee is solely liable for all consequences of any condition of such work and any facilities installed by Permittee in the public right-of-way.  Neither the issuance of any Permit, inspection, repair, or suggestion, approval, or acquiescence of any person affiliated with the City shall excuse the Permittee from such responsibility or liability.

13.	Indemnification.  Permittee, on behalf of itself and its successors and assigns (“Indemnitors”), shall indemnify, defend and hold harmless (“Indemnify”) the City including, but not limited to, all of its boards, commissions, departments, agencies and other subdivisions, including, without limitation, its Department of Public Works, and all of the heirs, legal representatives, successors and assigns (individually and collectively, the “Indemnified Parties”), and each of them, from and against any and all liabilities, losses, costs, claims, judgments, settlements, damages, liens, fines, penalties and expenses, including, without limitation, direct and vicarious liability of every kind (collectively, “Claims”), incurred in connection with or arising in whole or in part from: (a) any accident, injury to or death of a person, or loss of or damage to property, howsoever or by whomsoever caused, occurring in or about Permit Area from the use contemplated hereunder; (b) any default by such Indemnitors in the observation or performance of any of the terms, covenants or conditions of this Permit to be observed or performed on such Indemnitors’ part; (c) the use or occupancy or manner of use or occupancy of the Permit Area by such Indemnitors or any person or entity claiming through or under such Indemnitors; (d) the condition of the Permit Area; (e) any construction or other work undertaken by such Indemnitors permitted or contemplated by this Permit; (f) any acts, omissions or negligence of such Indemnitors in, on or about the Permit Area by or on behalf of such Indemnitors; (g) any injuries or damages to real or personal property, goodwill, and persons in, upon or in any way allegedly connected with the use contemplated hereunder from any cause or Claims arising at any time; and (h) any release or discharge, or threatened release or discharge, of any hazardous material caused or allowed by Indemnitors in, under, on or about the Permit Area; all regardless of the active or passive negligence of, and regardless of whether liability without fault is imposed or sought to be imposed on, the Indemnified Parties, except to the extent that such Indemnity is void or otherwise unenforceable under applicable law in effect on or validly retroactive to the date of this Permit and further except only such Claims as are caused exclusively by the willful misconduct or gross negligence of the Indemnified Parties.  The foregoing Indemnity shall include, without limitation, reasonable fees of attorneys, consultants, and experts, and related costs, and the City’s costs of investigating any Claim.  Permittee on behalf of the Indemnitors specifically acknowledges and agrees that the Indemnitors have an immediate and independent obligation to defend the City from any claim which actually or potentially falls within this Indemnity even if such allegation is or may be groundless, fraudulent, or false, which obligation arises at the time such Claim is tendered to such Indemnitors by the City and continues at all times thereafter.  As used herein, “hazardous material” means any substance, waste, or material which, because of its quantity or concentration of physical or chemical characteristics, is deemed by any federal, state, or local governmental authority to pose a present or potential hazard to human health or safety or to the environment. Permittee agrees that the indemnification obligations assumed under this Permit shall survive expiration of the Permit or completion of work.

14.	Insurance.  Insurance may be required for Encroachments that have construction costs equal to or greater than $50,000, if Permittee or Permittee’s employee participates in the installation of the Encroachment. If required, Permittee shall maintain in full force and effect, at Permittee’s sole expense, an insurance policy or policies issued by insurers with ratings comparable to A-VIII, or higher that are authorized to do business in the State of California, and that are satisfactory to the City.  Approval of the insurance by City shall not relieve or decrease Permittee’s liability hereunder.  If Permittee uses any contractor(s) to perform any of the Permitted Activities on or about the Permit Area, Permittee shall require the contractor(s) to provide all necessary insurance and to name the City and its officers, agents, and employees, and the Contractor as additional insureds and to waive subrogation in favor of City, where required.
  
If Permittee is required to obtain insurance, Permittee must maintain in full force and effect, during the installation of the Encroachment, insurance in the following amounts and coverages. Workers’ Compensation, in statutory amounts, with Employer’s Liability limits not less than $1,000,000 each accident, injury, or illness: and Commercial General Liability Insurance with Limits not less than $1,000,000 each occurrence and $2,000,000 in the aggregate for bodily injury and property damage, including contractual liability, personal injury, products and completed operations. 

Said policy shall include the City and its officers, employees, agents, and volunteers jointly and severally as additional insured and shall apply as primary insurance and shall stipulate that no other insurance policy of the City will be called on to contribute to a loss covered hereunder.  As used in this Section, “Personal Injuries” shall include wrongful death.

All policies shall be endorsed to provide written notice to Department of cancellation, material reduction in coverage, nonrenewal or material depletion of insurance limits for any reason, including intent not to renew or to reduce coverage to both Permittee and City.  Permittee shall provide a copy of any notice of intent to cancel or materially reduce, or notice of cancellation, material reduction, or depletion of its required coverage to Department within ten business days or less if less time is required by said notice of Permittee’s receipt.  Permittee also shall take prompt action to prevent cancellation, material reduction, or depletion of coverage, reinstate or replenish the cancelled, reduced or depleted coverage, or obtain the full coverage required by this Section from a different insurer meeting the qualifications of this Section.  Notices shall be sent to the ATTN: Permits, Department of Public Works, 49 South Van Ness Avenue, 3rd Floor, San Francisco, CA, 94103. If the Permittee fails to maintain the required insurance in active status, such failure shall be grounds for the Department to revoke the Permit and cause the Permittee to remove the Encroachment and restore the [sidewalk] to a condition satisfactory to the Director of Public Works at the Permittee’s full expense and without expense to the City.

15.	Permittee’s Authorized Contacts.  Permittee shall submit the first and last names, phone numbers, email, and mailing address of a minimum of two (2) representatives responsible for complying with the Permit to the Department.  Permittee shall notify Public Works within thirty (30) calendar days of any changes in the Permittee’s identified contact person(s) and submit the required contact information of the current and responsible contacts.

	First Authorized Representative	Second Authorized Representative	
First Name, Last Name			
Title			
Mailing Address			
Email Address			
Telephone Number			

16.	Recordation; Permittee’s Successors.  At the Department’s request and direction, Permittee shall record this Permit in the Office of the Assessor-Recorder to provide notice to the public of the Permit and the Permittee’s responsibilities thereunder.  Permittee on its own behalf and that of any successor or assign, promises and agrees to perform all the terms of this Permit and to comply with all applicable laws, ordinances and regulations.
 
17.	Permittee’s Encroachment Removal and Site Restoration Responsibilities.  If the Permit is terminated by Permittee or revoked or terminated by City, Permittee shall be responsible for removing the Encroachment and restoring the Permit Area to a condition specified by the City for a standard public right-of-way or as the Director deems appropriate under the circumstances, at Permittee’s sole expense, within thirty (30) calendar days; provided, however, to the extent that such restoration cannot be completed using commercially reasonable efforts within such thirty (30) calendar day period, then the Department may extend such period provided that the Permittee has commenced and is diligently pursuing such restoration.  This obligation shall survive the revocation, expiration, or termination of this Permit. 

18.	The City and any and all of its subdivisions, agencies, and employees shall not be responsible for preserving or maintaining the Encroachment in any manner following the termination or revocation of the Permit.

19.	The Director shall have sole discretion to interpret and make decisions regarding any and all discrepancies, conflicting statements, and omissions found in the Permit, Agreement, Exhibit A, and Construction Plans.
 
20.	Permit Violations.  If the Permittee fails to comply with the Permit Requirements, the Department may issue a citation to the Permittee pursuant to Administrative Code Chapter 100 for failure to comply with the Permit Requirements. The Permittee shall pay any and all administrative fines associated with the citation or if the Permittee wishes to seek the administrative review of a citation, the Permittee may file an appeal with the Controller no later than thirty (30) days from the date of service of the citation as provided in Administrative Code Section 100.8. 

21.	Request to Transfer Permit.  Permittee is prohibited from transferring the Permit without written authorization from the Department.  If the Permittee intends to cease complying with the Permit due to a desire to transfer the Permit, Permittee may submit a written request to transfer the Permit to a successor organization/entity (“Successor Applicant”). The request shall include the following information from the Successor Applicant: name, authorized contact persons, address, phone, and email address.  Following the Successor Applicant’s submittal of all required documentation and information and an executed Agreement with the Director of Public Works, the Director shall determine, in the Director’s sole discretion, whether to approve the request of the Permittee and the Successor Applicant.  The Department may require that such any transfer of the Permit be evidenced by a new written Agreement with the Director of Public Works.
 
In witness whereof the undersigned have been authorized to execute this Agreement on behalf of Permittee and the undersigned hereby acknowledge the requirements of this Agreement and the Permit Requirements and  execute this Agreement this 		day of 			, 20	.

PERMITTEE:

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Representative Authorized to Comply with Permit on Permittee’s Behalf

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Representative Authorized to Comply with Permit on Permittee’s Behalf	CITY AND COUNTY OF SAN FRANCISCO DEPARTMENT OF PUBLIC WORKS, a municipal corporation

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San Francisco Public Works