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08-0708_CHEVRON U.S.A. INC._Site Access Agreement.. 0 • Station No.: 9-3417 SITE ACCESS AGREEMENT THIS SITE ACCESS AGREEMENT ("Agreement") is entered into and effective this day of %2,e/ L 2008 ("Effective Date"), by and between CHEVRON U.S.A. INC., a Pennsylvania corporation ("Chevron") and CITY OF SAN JUAN CAPISTRANO ("Owner"). RECITALS A. Owner holds record title to certain real property located at 32400 Paseo Adelanto, in the City of San Juan Capistrano, County of Orange, State of California, APN # 668-101-03 (the "Property"); B. Chevron owns a retail service station at 32001 Camino Capistrano, commonly referred to as Chevron CORO Service Station No. 9-3417 (the "Station Property"); C. Chevron seeks Owner's authorization to access the Property to conduct any necessary environmental assessment and monitoring activities with respect to possible petroleum hydrocarbon contamination that may be present on or under the Property from the operation of retail service station facilities owned by Chevron on the Station Property; and D. Owner is willing to grant Chevron access to the Property for the above-described purposes. TERMS AND CONDITIONS NOW, THEREFORE, in consideration of the mutual covenants and promises herein, the parties hereby agree as follows: 1. RIGHTS GRANTED a. Owner hereby grants to Chevron, its employees, authorized agents, consultants and contractors a license over, under and across the Property for the purpose of performing environmental assessment and monitoring activities (the "Work"). Said Work may include drilling soil borings, soil and groundwater sampling, and the installation, maintenance, inspection, periodic sampling, replacement, and abandonment of groundwater monitoring wells, including Chevron's monitoring well (MW -16) currently located on the Property, as depicted on Exhibit "A" attached hereto and incorporated herein, which was installed under Encroachment Permit No. E08-0004. A copy of the permit is attached hereto as Exhibit `B". Notwithstanding the Agreement, the Encroachment Permit, and its conditions, remain effective, provided that should there be a conflict between the Agreement and the Encroachment Permit, the terms of the Agreement shall prevail. In the event the Work includes drilling additional borings or installing groundwater monitoring wells on the Property, the parties shall work together to determine the appropriate location for said borings or wells. an4s2929.a 0 0 Station No.: 9-3417 b. Chevron may enter the Property during regular business hours. Chevron may also enter during other non -regular business hours with Owner's written consent, which shall not be unreasonably withheld. C. Chevron, its employees, agents, consultants, and contractors shall enter the Property at their own risk, and Owner 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 Owner, its employees, or agents. 2. PERFORMANCE OF THE WORK Chevron agrees, at its sole cost and expense, to conduct and perform all its activities on the Property in a prompt, safe, efficient and workmanlike manner and in full and complete compliance with all applicable federal, state or local laws, regulations or ordinances. Chevron will take commercially reasonable efforts not to unreasonably interfere with operations of Owner or its tenant(s) on the Property. Owner shall have the right to observe the Work. Owner, however, agrees not to unreasonably interfere with the activities conducted by Chevron on the Property. Further, the parties agree to cooperate and execute any additional documents or permit applications which may reasonably be required to effectuate the purpose of this Agreement. 3. TERM The license granted herein shall terminate upon the earlier of one (1) year or the completion of the Work, including the abandonment of any monitoring wells on the Property, unless extended by written consent of the parties. In the event of a material breach of the Agreement by Chevron, Owner shall provide a thirty (30) day notice specifying the nature of the default. However, if the default would reasonably take longer than thirty (30) days to correct, the cure period shall be reasonably extended if Chevron commences the cure within such thirty (30) day period and diligently prosecutes the same to completion. Should Chevron not timely cure the material default, then Owner shall have the right to declare the license terminated, in which event Chevron shall cease the Work, properly abandon the wells, and remove its property from the Property within thirty (30) days. Owner acknowledges, however, that the abandonment of the wells and the removal of certain property may be subject to agency requirements and approval, which may affect the timing of such removal. 4. RESTORATION If entry onto the Property by Chevron, or exercise by Chevron of any of its rights or obligations under this Agreement, result in any physical damage to the Property (ordinary wear and tear excepted), Chevron shall promptly repair and restore the portions of the Property damaged to substantially the same condition as existed prior to the damage or exercise of such right or obligation. 5. INDEMNITY To the fullest extent permitted by law, Chevron agrees to protect, defend, and hold harmless the Owner and its officers, agents, and employees 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, A/72452929.8 0 Station No.: 9-3417 errors, negligent omissions, or intentional wrongful conduct of Chevron, its agents, officers, employees, subcontractors, or independent contractors 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. Chevron shall undertake all activities conducted hereunder at its sole cost and expense. 6. 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 5 of this Agreement. 7. INSURANCE In lieu of insurance coverage, Chevron maintains a self-administered claims program with respect to its duties hereunder. Chevron shall provide to Owner a certificate that Chevron is self- insured. Additionally, prior to entering onto the Property or continuing any Work, Chevron's contractors, at their own cost and expense, shall carry, maintain, and provide proof thereof that is acceptable to the Owner, the insurance specified below with insurers and under forms of insurance satisfactory in all respects to the Owner. Chevron and its contractors shall not allow any subcontractor to commence work on any subcontract until all insurance required of the contractor 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 per occurrence ($1,000,000.00), 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 per occurrence ($1,000,000.00). (c) Worker's Compensation Employer's Liability Insurance in the statutory amount as required by California law. (d) Proof of Insurance Requirements/Endorsement. The contractor shall submit the insurance certificates, including the deductible or self -retention amount, and an additional insured endorsement naming Owner, its officers, employees, and agents, as additional insureds as respects each of the following: Liability arising out of activities performed by or on behalf of the contractor, including the insured's general supervision of the contractor; products and completed operations of the contractor; or automobiles owned, leased, hired, or borrowed by the contractor. The coverage shall contain no special limitations on the scope of protection afforded Owner, its officers, employees, or agents. 0 An2452929.8 0 0 Station No.: 9-3417 (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 Owner, except that ten (10) days' notice shall be given if there is a cancellation due to failure to pay a premium. 8. LIENS Chevron shall discharge at once or bond or otherwise secure against all liens and attachments that are filed in connection with the Work, and shall indemnify and save Owner and the Property harmless from and against any and all loss, damage, injury, liability and claims thereof resulting directly from such liens and attachments. 9. NOTICES Any notices required to be made under this Agreement shall be made 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, or delivery by courier or personal delivery service. If a party delivers a notice by means of facsimile transmission, it must also send a copy of that notice by one of the other means specified above. Parties may alter or modify their notice address 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 Attn.: Property Specialist, SS # 9-3417 Phone: (714) 671-3262 Fax: (714)671-3440 To Owner: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: Cindy Russell Phone: (949) 443-6301 Fax: (949) 488-3874 10. REPORTS Upon Owner's written request, Chevron shall provide Owner with copies of its test results from sampling within seven (7) days after receipt of same. 11. APPLICABLE LAW This Agreement shall be interpreted, and any dispute arising hereunder shall be resolved, in accordance with the substantive laws of the State of California, without reference to choice of law rules. 4- A/772452929.8 0 Station No.: 9-3417 12. ALTERNATIVE DISPUTE RESOLUTION (ADR) If a dispute arises between the parties relating to this Agreement, the parties agree to use the following procedure prior to pursuing other legal remedies: (a) A meeting shall be held promptly between the parties, attended by individuals with decision-making authority regarding the dispute, who will attempt in good faith to negotiate a resolution of the dispute. (b) If within fifteen (15) days after the meeting, the parties have not succeeded in negotiating a resolution of the dispute, they agree to submit the dispute to mediation using a mediator who is mutually acceptable, and to bear equally the costs of the mediation. (c) The parties agree to participate in good faith in the mediation process related to their dispute for a period of thirty (30) days from the commencement of mediation. If the parties are not successful in resolving the dispute through mediation, then: (1) the parties may agree to submit the matter to binding arbitration or a private adjudicator; or (2) either party may initiate litigation upon ten (10) days advance written notice to the other party. 13. COUNTERPARTS This Agreement may be executed in counterparts, all of which together shall constitute one and the same agreement. 14. NO ADMISSION OF LIABILITY The parties acknowledge and agree that neither this Agreement, nor the act of entering into it or any act or omission pursuant hereto shall be construed as an admission of any nature. 15. NO WAIVER BY OWNER Nothing contained in this Agreement shall be construed in any manner to be a waiver by Owner of any claim they may have against Chevron relating to the condition of the Property. 16. COMPLIANCE WITH LAWS Throughout the term of this Agreement, Chevron and Owner shall at all times comply fully with all applicable laws, ordinances, rules, and regulations of any governmental agency having jurisdiction over the Property. 17. BINDING EFFECT Subject to the limitations set forth herein, this Agreement shall run with the land and be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and assigns. 5- A/72452929.8 0 0 Station No.: 9-3417 18. ATTORNEY'S FEES If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the substantially prevailing party, as determined by a court of competent jurisdiction, shall be entitled to reasonable attorneys' fees, costs, and necessary disbursements in addition to any other relief to which a court of competent jurisdiction deems it is entitled. 19. GENERAL PROVISIONS If any term or provision of this Agreement shall be deemed by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions shall remain in full force and effect. This Agreement contains the entire agreement between the parties and except for the Encroachment Permit, supersedes all prior agreements. This Agreement may be modified only by an instrument in writing signed by the parties. Nothing contained herein shall be deemed to make the parties partners or engaged in a joint venture with one another. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the Effective Date set forth above. CHEVRON: Dated: 4 , 2008 OWNER: Dated: 8 2008 6- a72as2929.8 CHEVRON U.S.A. INC., a Pe lvania corporation By N iS Its: iA G CITY OF SAN /JUAN C/A!P'IS, ,TRANO By:— Name: Lf oezlssel� Its: a -Ss f 0 0 EXHIBIT "A" Site Plan [BEGINS ON FOLLOWING PAGE] 7- A/72452929.8 Station No.: 9-3417 • Exhibit A ' f :31 li ' li �I�9 I � Il} 1 a3; } n U EXHIBIT `B" Encroachment Permit No. E08-0004 IBEGINS ON FOLLOWING PAGE] -8- A/72452929.8 n U Station No.: 9-3417 • • Exhibit B CITY OF SAN JUAN CAPISTRANO PERMIT NO: E08.0004 32400 Paseo Adlanto, San Juan Capistrano, CA 92675 rtes Ph: (949) 493.1171 Fax (949) 493-1053 I ISSUED: 1/15/2008 ENCROACHMENT PERMIT: Tn Sr EXPIRATION: 211612809 City Website: www.sanjuancapistrano.org Location of Work: CITY YARD BACK OF CITY HALL Applicant: CONESTOGA-ROVERS AND ASSOC. Applicant Address: 4 JENNER Contact Name: DEREK WILKEN Contractor: Contr. Address: 24 -HR. Phone No: 949 279-9972 WORK IS SCHEDULED TO Sewer/Water I DESCRIPTION: IRVINE.CA 92618 Phone: License No: City Business Lie No: Refund To: CONESTOGA-ROVERS AND ASSOC. Refund Address: 4 JENNER Monitor rl Other: Insurance INSTALL MONITOR WELLS (4 SITES WITHIN 5 FEET OF EACH OTHER) AS SHOWN ON ATTACHED PLAN. WELL SITES SHALL BE ABANDONED, UNDER ANEW ENCROACHMENT PERMIT, WHEN MONITORING IS COMPLETE. CONTRACTOR SHALL PROVIDE AND SET UP TRAFFIC CONTROL. CONTRACTOR SHALL PROVIDE A TRAFFIC CONTROL PIAN FOR THE CH PARKING LOT. THIS PLAN IS TO BE APPROVED BY CITY TRAFFIC ENGINEER BEFORE WORK STARTS. 1. Permittee shall comply with all approved plans, attachments, and conditions. 2. Lane closures 8:30 am to 3:30 pm. Two-way traffic maintained it all times. 3. This permit is Issued in accordance with the SJC Municipal Code 7-3.02 and 7-6.02. 4. Code violations are enforced In accordance with Municipal Code 1-2.03 (b).7 5. The applicant hereby agrees to comply with all applicable City ordinances and regulations. 6. Any Property damage ass result of this work shall be the responsibility of the permittee. 7. This permit must be on thelob site and available to City representatives at all times. 8. Deposits shall expire one year from date of permit Issuance, unless request for extension Is submitted 30 days prior to expiration. I hereby agree to indemnify the City, its authorized representatives agents, and employees to hold harmless from any and all liability for accidents; legal action and from any loss or damage to persons or property which would result from any work undertaken as listed on this permit application. I have read and fully understand the provisions and conditions shown on this permit and/or attached herewith. Signature of Permittee Print Name Approved: Contact the City Inspectors 24 his before working unless noted elsewhere. M Engineering Inspector I James Prather 949.443.6354 0 Water Services Inspector / Mike Smith 949.467.4311 ® DIG ALERT This permit Is not valid without a USA Underground Service Alert) ID Number. For Information call 1.800.227.2600 USA I.D. NO.: 13 Fee Waived: PERMIT FEE: $ 236.47 BONDIDEPOSIT $ 500.00 TOTALFEE: $736.47 [3 Released 13 Forfeited Payment recieved i d'v„ 3ERTIFICATE OF INSPECTION: I certify that the work allowed by this permit for work in :onstructed according to the specifications and plans and I hereby accept the work in this Inspector: dC ENePERbUT Dale: