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STPUD Access Agreement with Liberty Utilities for PCE Investigation_(16506955_1)_draft SB 354375 v8:007627.0123 16506955 1 ACCESS AGREEMENT THIS ACCESS AGREEMENT (“Agreement”) is made and entered into on this ____ day of __________, 2018, by and between the South Tahoe Public Utility District (“District”) and Liberty Utilities Calpeco Electric, LLC (“Liberty”), at South Lake Tahoe, California, with reference to the following facts and intentions: A. The District is investigating the PCE contamination plume that originated at or near the “South Y” area in the City of South Lake Tahoe (“City”); B. The District has identified property owned by the City of South Lake Tahoe (“City Property”) that is utilized by the City as a BMP drainage basin. The City is willing to allow the District to drill a monitoring and test well and conduct aquifer testing to assist in the investigation of PCE contamination (“Work”); C. Liberty is the owner of certain property located at 933 Eloise, South Lake Tahoe, (“City Property”) which is adjacent to the City Property; and, D. Liberty agrees to allow the District access the City Property over the Property pursuant to the terms and conditions of this Agreement. NOW, THEREFORE, the Parties agree as follows: 1. Access. Liberty grants to the District the right to access its parking lot through the east entrance and to use approximately 380 square feet of parking spaces as depicted on Exhibit A (“Access Area”) in support of its PCE investigation on the City Property. The District shall have the right to park drilling and pumping equipment, support vehicles and store materials on the Access Area. The District shall not block or impede the east entrance to the parking lot. 2. Performance of Work. The District shall provide Liberty with at least seven (7) calendar days’ notice prior to commencing the Work. The District and its Consultants will perform the Work in a good and workmanship like manner and in accordance with applicable professional and industry standards for performing such work. The District shall take reasonable measures to limit noise including installation of sound blocking devices. The installation of District drilling and testing equipment shall be installed on the City Property after normal business hours or on weekends. 3. Term. The District will have thirty (30) days from the date specified in the commencement notice to utilize the Access Area. The anticipated commencement date is on or about April 1, 2018. 4. Compliance with Laws. The District shall give all notices required by, and shall comply with, all federal, state and local laws, ordinances, rules and regulations relating to the Work. 5. Restoration. Upon the termination of the Work, the District shall restore, including any damage caused by the District, the Access Area to the same condition as existed at the time of the commencement of the work, at no cost or expense to Liberty. 6. Indemnification. The District agrees to indemnify, defend and hold harmless Liberty, it's directors, employees and agents from and against any and all liabilities, losses, claims, damages, actions and causes of action that relate to, result from or arise out of this Agreement SB 354375 v8:007627.0123 16506955 2 or the Work (collectively “Claims”), except Claims resulting from Liberty’s sole negligence or willful misconduct. Liberty agrees to provide prompt notice to the District of any Claims made against it. 7. Insurance. The District and its consultants shall procure and maintain, in full force and effect during the performance of the Work, the following insurance coverages. 7.1 Commercial General Liability. Commercial General Liability Insurance using Insurance Services Office “Commercial General Liability” policy form CG 00 01 11 85 or the exact equivalent with limits which shall be no less than one million Dollars ($1,000,000) per occurrence for all covered losses and no less than two Million dollars ($2,000,000) general aggregate. 7.2 Workers' Compensation. Workers’ Compensation on a state-approved policy form providing statutory benefits as required by law with employer’s liability limits no less than one million dollars ($1,000,000) per accident for all covered losses. 7.3 Automobile Liability. Business Auto Coverage on ISO Business Auto Coverage form CA 00 01 06 92 including symbol 1 (Any Auto) or the exact equivalent. Limits shall be no less than one million dollars ($1,000,000) per accident, combined single limit. 8. General Provisions. 8.1 Recitals. The recitals stated at the beginning of this Agreement of any matters or facts shall be conclusive proof of the truthfulness thereof and the terms and conditions of the recitals, if any, shall be deemed as part of this Agreement. 8.2 Notices. All notices, approvals, acceptances, requests, demands and other communications required or permitted, to be effective, shall be in writing and shall be delivered, either in person or by mailing, the same by United States mail (postage prepaid, registered or certified, return receipt requested) or by Federal Express or other similar overnight delivery service, to the party to whom the notice is directed at the address of such party as follows: TO: DISTRICT South Tahoe Public Utility District 1275 Meadow Crest Drive South Lake Tahoe, California 96150 Attn: General Manager With a copy to: Gary M. Kvistad, Esq. Brownstein Hyatt Farber Schreck, LLP 1020 State Street Santa Barbara, California 93101 TO: LIBERTY Liberty Utilities Calpeco Electric, LLC 933 Eloise Avenue South Lake Tahoe, CA 96150 Attn: John Cressaty, Easement Coordinator With a copy to: ________________________________ ________________________________ ________________________________ SB 354375 v8:007627.0123 16506955 3 Any communication given by mail shall be deemed delivered two (2) business days after such mailing date, and any written communication given by overnight delivery service shall be deemed delivered one (1) business day after the dispatch date. Either party may change its address by giving the other party written notice of its new address. 8.3 Successors and Assigns. This Agreement shall be binding on and shall inure to the benefit of the parties and their respective heirs, successors and assigns. Nothing in this Agreement, express or implied, is intended to confer on any person other than the parties or their respective heirs, successors and assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement. 8.4 Waiver. No waiver by any party of any of the provisions shall be effective unless explicitly stated in writing and executed by the party so waiving. The waiver by any party of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach, shall constitute a waiver of any other provision, whether or not similar, or constitute a continuing waiver. 8.5 Severability. If any term, provision, covenant or condition of this Agreement shall be or become illegal, null, void or against public policy, or shall be held by any court of com-petent jurisdiction to be illegal, null, void or against policy, the remaining provisions of this Agreement shall remain in full force and effect, and shall not be affected, impaired or invalidated. The term, provision, covenant or condition that is so invalidated, voided or held to be unenforceable, shall be modified or changed by the parties to the extent possible to carry out the intentions and directives set forth in this Agreement. 8.6 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same instrument. 8.7 Governing Law. This Agreement shall be governed by, and interpreted in accordance with, the laws of the State of California to the extent California Law is applicable to the United States, with venue proper only in the County of El Dorado, State of California. 8.8 Attorney 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', paralegals’, and experts’ fees and costs actually incurred in good faith, which may be determined by the court in the same action or in a separate action brought for that purpose. The attorneys' fees award shall be made to fully reimburse for all reasonable attorneys', paralegals’, and experts’ fees and costs, regardless of the size of the judgment, it being the intention of the parties to fully compensate for all attorneys', paralegals’, and experts’ fees, costs and expenses paid or incurred in good faith. 8.9 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. SB 354375 v8:007627.0123 16506955 4 8.10 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. 8.11 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. IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year and at the place first written above. SOUTH TAHOE PUBLIC UTILITY DISTRICT By Randy Vogelgesang, President LIBERTY UTILITIES CALPECO ELECTRIC, LLC By ___________________________ (Name/Title) ATTEST: By Melonie Guttry, Clerk of the Board/ Executive Secretary