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08-0408_CHEVRON U.S.A. INC_Cooperation & Indemnification Agreement0 0 COOPERATION & INDEMNIFICATION AGREEMENT This Cooperation and Indemnification Agreement ("Agreement") is effective April F 2008 ("Effective Date") by and between the CITY OF SAN JUAN CAPISTRANO, a California municipal corporation (the "City") and CHEVRON U.S.A. INC., a Pennsylvania corporation ("Chevron") (the City and Chevron are collectively referred to as "Parties" and individually as "Party"). RECITALS A. WHEREAS, Chevron owns a retail service station located at 32001 Camino Capistrano, in the City of San Juan Capistrano, County of Orange, State of California, commonly referred to as Chevron CORO Service Station No. 9-3417, and a retail service station located at 26988 Ortega Highway, in the City of San Juan Capistrano, County of Orange, State of California, commonly referred to as Chevron CORO Service Station No. 9-8719 (collectively, the "Station Properties"); B. WHEREAS, the City leases a groundwater recovery plant ("GWRP") located at 32450 Paseo Adelanto, in the City of San Juan Capistrano, County of Orange, State of California, and owns six groundwater wells that provide water to the GWRP in the City of San Juan Capistrano, County of Orange, State of California, commonly referred to as the Capistrano Valley Water District No. 1 Well, the Dance Hall Well, the Kinoshita Well, the San Juan Basin Authority No. 2 Well, the San Juan Basin Authority Well No. 4 Well, and the Tirador Well (collectively, the "City's Wells"); C. WHEREAS, the City has alleged that operations at the Station Properties have caused methyl tertiary butyl ether ("MTBE") contamination in the Dance Hall Well; D. WHEREAS, Chevron has agreed, without admitting any fault or liability, to perform a 72 -hour aquifer test using the Dance Hall Well to evaluate the aquifer characteristics and capture zone of the well (the "Work," as defined in Section 1 below); and E. WHEREAS, Southwest Water Company, which operates the GWRP and the City's Wells on behalf of the City, will operate the City's Dance Hall Well during the 72 -hour aquifer test. TERMS THEREFORE, in consideration of the mutual covenants and conditions set forth, the Parties hereto agree as follows: Rights Granted. (a) The City grants to Chevron, to Chevron's employees and authorized agents (collectively, "Representatives"), to Conestoga -Rovers & Associates and Geosyntec A/72490205.5 0 0 Consultants (collectively, "Consultants"), and to Cedar Creek Consulting access to the City's Wells, the GWRP, and related property (collectively, "the Property") for the purpose of performing the Work. The Work shall include the following: (1) installation of monitoring equipment on the City's Wells; (2) conduct of a 72 -how aquifer test on the Dance Hall Well, including monitoring pump flow rate and water levels in the City's Wells; and (3) disposal of the water generated during the 72 -hour aquifer test. (b) . The City agrees to obtain any permission or permits necessary for Chevron to complete the Work. (c) If the operation of the 72 -hour aquifer test is delayed or disrupted for any reason, the Parties shall work together to reschedule the test. Chevron shall have no claim or cause of action against the City for such delay or disruption, unless such delay or disruption was caused by a negligent, intentional, or willful act by the City, its employees, or its authorized agents. (d) Chevron, its Representatives, its Consultants, and Cedar Creek Consulting may enter the Property during regular business hours prior to the onset and following completion of the aquifer test to install and remove monitoring equipment. Chevron and its. Representatives may also enter during other non -regular business hours while the monitoring instruments are installed to record data and verify pumping conditions. (e) Chevron, its Representatives, its Consultants, and Cedar Creek Consulting shall access the Property at their own risk, and the City shall not be held responsible or liable for injury, damage or loss incurred by such persons arising out of or in connection with the Work, except to the extent that any injury is due to the acts or omissions of the City, its employees, or agents. Indemnity. (a) To the fullest extent permitted by law, Chevron agrees to protect, defend, and hold harmless the City from any and all claims, actions, causes of action, rights, demands, debts, obligations, damages, liabilities or losses of any kind, including attorney's fees. arising out of, or in any way connected to or associated with, any acts, errors, negligent omissions, or intentional wrongful conduct of Chevron, its Representatives, or its Consultants in performing the Work, or directly resulting from the Work, including, without limit, damage to any real or personal property, or injury to or death of any persons in connection therewith. (b) Chevron agrees to pay any and all permit fees required and/or fines imposed on the City as a result of Chevron's performance of the Work. Chevron, however, reserves the right to challenge the imposition of such fines. (c) The City shall notify Chevron, in writing, within thirty (30) days of the commcncement of any formal legal proceeding, whether judicial, administrative or quasi- judicial, by or against any person or entity as to which indemnity is to be sought pursuant to this section. In the event the City fails to provide such notice to Chevron, Chevron shall be relieved of any indemnity obligation it may have otherwise had as to the claims or causes of action brought. 2 A/72490205.5 (d) Within thirty (30) days of receiving notice of an indemnification claim from the City, Chevron shall respond to the City, in writing, informing it whether it will accept or decline the City's indemnification claim. In the event Chevron fails to respond within the thirty -day (30) period, the City shall have the right to respond to, negotiate, settle, or defend against any claim or causes of action brought. The City may then seek indemnification from Chevron under this section. 3. Release. Owner shall release and discharge Chevron, its officers, directors, employees, agents, and representatives from any and all claims, actions, causes of action, rights, demands, debts, obligations, damages, liabilities or losses, including attorney's fees, from which Chevron agrees to indemnify the Owner pursuant to Section 2 of this Agreement. 4. Termination. Chevron's indemnity obligations under Section 2 shall terminate three (3) years from the completion of the Work. 5. Insurance. In lieu of insurance coverage, Chevron maintains a self-administered claims program with respect to its duties hereunder. Chevron shall provide to the City a certificate that Chevron is self-insured, if requested. Additionally, prior to entering onto the Property or continuing any Work, Chevron's Consultants, at their own cost and expense, shall carry, maintain, and provide proof thereof that is acceptable to the City, the insurance specified below with insurers and under forms of insurance satisfactory in all respects to the City. Chevron and its Consultants shall not allow any subcontractor to commence work on any subcontract until all insurance required of the Consultants has also been obtained for the subcontractor. Insurance required herein shall be provided by insurers authorized to do business and in good standing with the State of California and having a minimum Best's Guide Rating of A- Class VII or better. (a) Comprehensive General Liability coverage in an amount not less than one million dollars ($1,000,000.00) per occurrence, combined single limit coverage for risks associated with the Work. If a Commercial General Liability Insurance form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the Work or the general aggregate limit shall be at least twice the required occurrence limit. (b) Comprehensive Automobile Liability coverage, including owned, hired and non -owned vehicles in an amount not less than one million dollars ($1,000,000.00) per occurrence. (c) Worker's Compensation Employer's Liability Insurance in the statutory amount as required by California law. (d) Proofoflnsurance Requirements/Endorsement, Chevron's Consultants shall submit the insurance certificates, including the deductible or self -retention amount, and an additional insured endorsement naming the City, its officers, employees, and agents, as additional insureds with respect to each of the following: liability arising out of activities performed by or on behalf of the Consultants, including the insured's general supervision of the Consultants; products and completed operations of the Consultants; or automobiles owned, A172490205.5 leased, hired, or borrowed by the Consultants. The coverage shall contain no special limitations on the scope of protection afforded the City, its officers, employees, or agents. (e) Notice of Cancellation/Termination of Insurance. The above policy/policies shall not terminate, nor shall they be cancelled, nor the coverages reduced, until after thirty (30) days' written notice is given to the City, except that ten (10) days' notice shall be given if there is a cancellation due to failure to pay a premium. 6. Notices. Any notice, request, demand, consent, approval or other communication required or permitted hereunder or by law shall be deemed given only if in writing to the address of the appropriate Party as set forth below. All such notices shall be deemed to have been duly given and received upon mailing, facsimile, e-mail, or delivery by courier or personal delivery service. If a Party delivers a notice by means of facsimile transmission or e-mail, it must also send a copy of that notice by one of the other means specified above. Parties may alter or modify their notice addresses by delivery of written notice pursuant to the terms of this Agreement. To Chevron: c/o Chevron Environmental Management Company Marketing Business Unit 145 S. State College Blvd. Brea, CA 92821-5818 Ann.: Property Specialist, SS # 9-3417 and SS # 9-8719 Phone: (714) 671-3262 Fax: (714) 671-3440 SharonVasquez@Chevron.com With a copy to: Jill C. Teraoka, Esq. Bingham McCutchen LLP 355 South Grand Ave, Suite 4400 Los Angeles, CA 90071 Phone: (213) 680-6422 Fax: (213) 680-6499 jill.teraoka@bingham.com To City: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: Cindy Russell Phone: (949)443-6301 Fax: (949)488-3874 CRussei[@SanJuanCapistrano.org A/72490205.5 0 0 With a copy to: Omar Sandoval, Esq. City Attorney City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Phone: (949) 443-6312 Fax: (949) 488-3874 OSandoval@SanJuanCapistrano.org 7. Governing Law. This Agreement shall be governed by and construed under the laws of the State of California. 8. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed in original, but all of which together shall constitute one and the same agreement. 9. Breach. The Parties understand and agree that no breach of any provision or provisions of this Agreement can be waived unless done so expressly in writing. A waiver of one breach shall not be deemed a waiver of any other breach of the same or any other provision of this Agreement. 10. Severabilitv. If any provision of this Agreement is determined to be unenforceable for any reason, it shall be adjusted rather than voided, if possible, in order to achieve the intent of the Parties. In any event, the remaining provisions shall be deemed valid and enforceable to the maximum extent possible. 11. Authority. Each of the undersigned represents and warrants that he/she has the authority to bind the Party on behalf of whom he/she signs and that the other Party hereto is entitled to rely upon such representation for all legal purposes. 12. Parties Covered. This Agreement shall be signed by the Parties and shall inure to the benefit of the Parties' successors and assigns. 13. No Admission of Liability. Neither the execution of this Agreement nor anything contained in it is intended to be, nor shall be deemed to be, an admission by either Party of any liability or an admission of the existence of facts upon which liability could be based. 14. Amendments and Modifications. This Agreement may be amended or modified only by a written agreement signed by the Parties to this Agreement. 15. Entire Agreement. This Agreement constitutes the entire understanding between the Parties hereto with respect to the subject matter set forth herein and supersedes any and all prior or other contemporaneous understandings, correspondence, negotiations, or agreements, written or oral, between them regarding the subject matter of this Agreement. No alterations, modifications or interpretations hereof shalt be binding unless in writing and signed by the Parties. 5 A/72490205.5 0 0 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement, as of the dates written below. CITY OF SAN JUAN CAAPIIS�T/RANO, a California Municipal orpora ion aIr DATED: , 2008 By: Name: i'wy 0<�US5P//, ATTEST DATED:, 2008 APPROVED AS TO FORM: DATED: DC7 12008 Rv A/72490205.5 Title: By; J Title: CHEVRON U.S.A. INC., a Pennsylvania Corporation L/�J��l7ll�lti CITY OF SAN JUAN CAPISTRANO By: " 4 6? 14 &))J Omar Sandoval, sq. City Attorney, City of San Juan Capistrano CHEVRON U.S.A. INC. By: C l\il'' 1 r>aD4L= Jill C. Teraoka Bingham McCutchen LLP