STPUD Access Agreement for Tata Well Site (DRAFT)_(19110866_1)
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ACCESS AGREEMENT
This Access and Due Diligence Agreement (“Agreement”) is entered into as of the __ day of May 2019 (“Effective Date”), by and between the South Tahoe Public Utility District (“District”), and AECOM, a Delaware Company, at South Lake Tahoe, California, with respect to the following facts and intentions: A. The District is the owner of certain real property located at the Tata Well Site (APNs 03224210 and 03224211), South Lake Tahoe, California (“Property"). A map of the Property is attached as Exhibit A, which is incorporated by this reference; B. Pursuant to the Contractor Scope of Work for the Regional Groundwater PCE Investigation being performed by the Lahontan Regional Water Quality Control Board (“Regional Board”), AECOM (“Consultant”) is contracted to conduct a regional plume characterization to define the extent of tetrachloroethylene and other volatile organic compounds (collectively “VOCs”) in groundwater occurring within the South “Y” Area, South Lake Tahoe, El Dorado County, California (“Plume Characterization”). C. The Regional Board desires the District to allow the Consultant to access the Property for use as a staging area for the temporary storage of equipment and materials needed by the Consultant to perform the Plume Characterization; and,
D. The District agrees to allow the Consultant to enter the Property for the purpose of using the Tata Well site as a staging area pursuant to the terms and conditions of this Agreement.
NOW, THEREFORE, the District and the Consultant (collectively “the parties” and individually each a “party”) agree as follows:
1. Term. For purposes of this Agreement, the term of the Consultant’s access to the Property shall commence on June 3, 2019 and terminate on November 1, 2019 (“Term”) or until terminated by either party by providing thirty (30) days’ written notice to the other party. The District may terminate this Agreement on five (5) days’ written notice if the Consultant breaches the terms of this Agreement.
2. Access Fee. Consultant shall pay the District a non-refundable access fee in advance of Two Thousand Five Hundred and 00/100 dollars ($2,500.00) (Five Hundred and 00/100 Dollars ($500.00) per month) payable in advance within thirty (30) days of the Effective Date (the “Access Fee”). The Access fee payment shall be mailed or delivered to the District at the location for notices to be sent as provide in this Agreement.
3. Limited Access. In consideration of the payment of the Access Fee and the performance of the promises by the Consultant, the District grants the Consultant access to the Property for staging equipment and materials required for the Plume Characterization. Consultant shall provide the District a notice of its intent to enter the Property at least five (5) days prior to the intended date of entry, which notice shall include a general description of the activities to be conducted. A representative of the District shall have the right, but not the obligation, to inspect the Consultant’s use of the Property for compliance with this Agreement.
4. Indemnity. The Consultant shall indemnify, defend and hold harmless, the District, its elected officials, officers, employees, agents and contractors, from and against any and all claims, damages, losses, liabilities and expenses, including reasonable attorneys’ fees, paralegal and legal fees and costs, which arise out of, relate to or result from the Consultant’s act or omissions, negligence or willful misconduct related to the Consultant’s access to the Property and any related use of the Property, except as caused by District’s sole negligence or willful misconduct.
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5. Insurance. Except as required by law, the District shall have no liability, responsibility or duty of care to the Consultant on the Property. The Consultant may enter the Property at its own risk. Prior to accessing the Property pursuant to this Agreement, the Consultant shall maintain and provide to the District proof of the following insurance coverages:
5.1. Workers Compensation Insurance. Insurance to protect them from all claims under California Workers Compensation and Employers Liability Acts. Such coverage shall be maintained, in the type and amount, in strict compliance with all applicable state and federal statutes and regulations.
5.2. Commercial General Liability Insurance. Commercial general liability insurance for bodily injury (including death), personal injury, property damage, owned and non-owned equipment, blanket contractual liability, completed operations, explosion, collapse, underground excavation and removal of lateral support covering performance, which coverage shall be at least as broad as Insurance Services Office (ISO) occurrence form CG 0001, and with a limit in an amount of not less than Two Million Dollars ($2,000,000). If insurance with a general aggregate limit or products-completed operations aggregate limit is used, either the general aggregate limit shall apply separately with the ISO CG 2503, or ISO CG 2504, or insurer’s equivalent endorsement or the general aggregate limit and products completed operations aggregate limit shall be twice the required occurrence limit.
5.3. Automobile Liability Insurance. Insurance to protect against claims arising from death, bodily or personal injury, or damage to properties resulting from actions, failure to act, operations of equipment of the insured, or by its employees, agents, and consultants or by anyone directly or indirectly employed by the insured. The amount of insurance shall not be less than Two Million Dollars ($2,000,000) combined single limit per acts of coverage applied to bodily and personal injury and property damage. Coverage shall include all owned, non-owned and hired vehicles.
5.4. General Provisions. The above insurance coverages shall be subject to the District’s reasonable approval. The District shall be provided with copies of the certificate(s) of insurance evidencing the above insurance coverages. The District shall be named as the additional insured on the commercial general liability and automobile liability insurance policies. Each policy of insurance shall require thirty (30) days advance written notice to the District of any change or cancellation of insured. The above insurance coverage shall be primary with respect to the interest of the additional insured, include a cross liability and severability of interest endorsement, a waiver of any and all transfer rights of recovery (subrogation) against the additional insured. In addition, the above insurance requirements shall not limit the indemnification obligations of the Consultant.
6. Compliance with Law. The Consultant shall take all necessary actions and implement all protections necessary to ensure that all actions taken in connection with all equipment, materials and substances generated, used or brought onto the Property pose no material threat to the safety of persons or the environment and cause no damage to the Property or other property of the District or other persons. The Consultant shall conduct itself on the Property in compliance with all applicable laws and regulations. Without limiting the previous sentence, the Consultant shall address any hazardous materials and substances at the Property in such a manner that fully complies with all applicable environmental laws and regulations. The Consultant shall have no liability under this Agreement for pre-existing conditions at the Property that it does not create or exacerbate.
7. No Additional Rights Granted. The Consultant acknowledges and agrees that the District’s execution of this Agreement does not provide the Consultant with any additional rights or interest in the Property whatsoever.
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8. Damage to the Property. The Consultant shall not allow, create, cause or permit any lien or encumbrance to attach to the Property during the Term. Should physical damages to the Property occur as a result of the Consultant’s activities, the Consultant shall be responsible, at its sole cost and expense, to restore the Property to substantially the same condition in which it existed prior to such damage. The parties shall, as reasonably practical, jointly inspect the damaged Property and/or improvements and the Consultant shall repair/replace the damaged Property and/or improvements to the reasonable satisfaction of the District.
9. General Provisions.
9.1. Applicable law; venue. The laws of the State of California shall govern the interpretation and enforcement of this Agreement. The Superior Court of the County of El Dorado County, California, shall be the site and have jurisdiction for the resolution of all such actions.
9.2. Notices, Demands and Communications Between the Parties. Written notices, demands, and communications between the District and Consultant shall be given either by: (i) personal service; (ii) delivery by reputable document delivery service such as Federal Express that provides a receipt showing date and time of delivery; or, (iii) by mailing in the United States mail, certified mail, postage prepaid, return receipt requested, addressed to:
To District: John Thiel, General Manager South Tahoe Public Utility District 1275 Meadow Crest Drive South Lake Tahoe, CA 96150
With Copy to: Gary M. Kvistad Brownstein Hyatt Farber Schreck, LLP 1021 Anacapa Street, Second Floor Santa Barbara, CA 93101 To Consultant: AECOM, Inc. ____________________________________
____________________________________ ____________________________________ With Copy to: ____________________________________ ____________________________________ ____________________________________
____________________________________ ____________________________________
Notices personally delivered, sent by United States mail or delivered by document delivery service shall be deemed effective upon receipt. Notices sent solely by mail in the manner provided above shall be deemed effective on the second business day following deposit in the United States mail. Such written notices, demands, and communications shall be sent in the same manner to such other addresses as either party may from time to time designate by mail. 9.3. Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used. The part and paragraph headings used in this Agreement are for purposes of convenience only, and shall not be construed to limit or
extend the meaning of this Agreement.
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9.4. Counterparts. This Agreement may be executed in counterparts, each of which, after all the parties hereto have signed this Agreement, shall be deemed to be an original, and such counterparts shall constitute one and the same instrument.
9.5. Successors. This Agreement shall be binding upon and shall inure to the benefit of the successors of each of the parties hereto.
9.6. Severability. In the event any section or portion of this Agreement shall be held, found, or determined to be unenforceable or invalid for any reason whatsoever, the remaining provisions shall remain in effect, and the parties hereto shall take further actions as may be reasonably necessary and available to them to effectuate the intent of the parties as to all provisions set forth in this Agreement.
9.7. Assignment. This Agreement shall not be assignable without the prior written consent of the District, who shall have the sole discretion to consent or not to consent to any proposed assignment. Any attempted assignment without the approval of the District shall be void.
9.8. Construction. The provisions of this Agreement should be liberally construed to effectuate its purposes. The language of all parts of this Agreement shall be construed simply according to its plain meaning and shall not be construed for or against either party, as each party has participated in the drafting of this document and had the opportunity to have their counsel review it. Whenever the context and construction so requires, all words used in the singular shall be deemed to be used in the plural, all masculine shall include the feminine and neuter, and vice versa.
9.9. Several Obligations. Except where specifically stated in this Agreement to be otherwise, the duties, obligations, and liabilities of the parties are intended to be several and not joint or collective. Nothing contained in this Agreement shall be construed to create an association, trust, partnership, or joint venture or impose a trust or partnership duty, obligation, or liability on or with regard to either party. Each party shall be individually and severally liable for its own obligations under this Agreement.
9.10. Attorneys’ Fees. If any legal proceeding (lawsuit, arbitration, etc.), including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees and costs, which may be determined by the court in the same action or in a separate action brought for that purpose.
9.11. Authority. The individuals executing this Agreement represent and warrant that they have the authority to enter into this Agreement and to perform all acts required by this Agreement, and that the consent, approval or execution of or by any third-party is not required to legally bind either party to the terms and conditions of this Agreement.
9.12. Survival. The provisions of this section and sections 3, 4, 5 and 8 shall survive the termination of this Agreement.
9.13. Entire Agreement. This Agreement contains the entire understanding and agreement of the parties, and supersedes all prior agreements and understandings, oral and written, between the parties. There have been no binding promises, representations, agreements, warranties or undertakings by any of the parties, either oral or written, of any character or nature, except as stated in this Agreement. This Agreement may be altered, amended or modified only by an instrument in writing, executed by the parties to this Agreement and by no other means. Each party waives its future right to claim, contest or assert that this Agreement was modified, canceled, superseded or changed by any oral agreement, course of conduct, waiver or estoppel.
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IN WITNESS WHEREOF, the District and the Consultant have entered into this Agreement as of the date first written above.
South Tahoe Public Utility District:
By: Randy Vogelegsang, President
ATTEST:
By: Melonie Guttry, Clerk of the Board AECOM, Inc. By: (Name/Title)
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