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
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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.
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(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,
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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
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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.
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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
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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