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RIGHT OF ENTRY AGREEMENT
BETWEEN
THE CITY OF HOLLISTER
AND
CITY OF SAN MATEO
THIS RIGHT OF ENTRY AGREEMENT (“AGREEMENT”) is entered into by and between the CITY OF SAN MATEO and the CITY OF HOLLISTER , a municipal corporatio n ("CITY"), upon execution by the CITY.
RECITALS
A. WHEREAS, the CITY OF SAN MATEO needs to obtain “seed” sludge from the CITY to be used in the commissioning of its new wastewater treatment plant, which the CITY has agreed to provide to the CITY OF SAN MATEO at no cost; and B. WHEREAS, the CITY OF SAN MATEO will be trucking the “seed” sludge from the premises of the City of Hollister Water Reclamation Facility (“WRF”) in the City of Hollister, County of San Benito, State of California; and C. WHEREAS, the CITY OF SAN MATEO desires to obtain access to those areas of the WRF premises designated on Exhibit A (vicinity of the Sludge Handling Building) (collectively “Properties”) attached hereto and incorporated by reference herein, for the purpose of trucking off-site sludge from the gravity belt thickener; and
D. WHEREAS , the CITY is willing to allow CITY OF SAN MATEO employees, agents, contractors, and consultants to enter the Properties for the purpose of trucking off-site sludge from the gravity belt thickener under the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the mutual covenants herein contained, the parties agree as follows:
1. Right of Entry. CITY hereby grants to CITY OF SAN MATEO a temporary right of entry, as hereinafter described, on the Properties. Said right of entry is subject to all licenses, easements, leases, encumbrances, claims of title and agreements, affecting the Properties.
2. Purpose . Subject to the limits herein stated, the right of entry granted herein is a right to enter onto the Properties for the purposes of trucking off-site sludge from the gravity belt thickener (the "Project") for the purpose of starting 2 of 6
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up the CITY OF SAN MATEO’S new Wastewater Treatment Plant, and at the locations shown on Exhibit A.
Hauling sludge off-site by the CITY OF SAN MATEO will entail the following:
Requirements of City of San Mateo:
1. Provision of all necessary trucks, mixing storage tank, pumps, piping, standby power and fuel to pump from the gravity belt thickener into the trucks. It is anticipated that 1 mixing storage tank and associated generator, and one trailer mounted diesel pump will be required.
2. Make necessary piping modifications on the discharge of the thickened sludge pump to allow conveyance to the mixing storage tank.
3. To haul the necessary sludge for startup of the CITY OF SAN MATEO’S new Wastewater Treatment plant will require up to 4 truck trips per day over a period of 20 working days (Monday through Friday). The trucks are anticipated to be tractor trailer truck up to 60 foot in length.
4. Upon completion of project remove all temporary facilities, convert thickened sludge pump discharge piping to original configuration and leave site to pre-existing conditions.
Requirements of City of Hollister
1. Adjust speed of gravity belt thickener and dosage of polymer to create 2 to 3 percent sludge.
2. Confirm the existing thickened sludge pump is operable.
3. Allow use of existing thickened sludge pump to pump sludge off of gravity belt thickener into mixing storage tank.
4. Provide “seed” sludge to City of San Mateo at no cost.
3. Limitations. Activities conducted pursuant to this right of entry shall be conducted only after CITY OF SAN MATEO has determined that no underground utilities or other hazards exist in the area of the proposed sludge hauling operation.
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4. Term. Subject to the termination provision set forth in Section 6 below, the term of the right of entry shall be for a period of 60 days and begin upon execution of this Agreement by CITY or when the CITY OF SAN MATEO provides two weeks’ notice that sludge hauling operations will begin, whichever occurs later.
5.Terms and Conditions. The Right of Entry is given subject to the following terms and conditions.
5.1 No entry shall be made until CITY has received and approved: a schedule and scope for the proposed work and a list of the names of all agents and contractors of the CITY OF SAN MATEO
authorized by CITY OF SAN MATEO to enter the Properties.
Notice shall be provided to the CITY at least two weeks’ prior to the requested date of entry to coordinate site access and safety requirements for entry.
5.2 CITY OF SAN MATEO shall be responsible for coordination of work to avoid any utility conflicts, or conflicts with any Properties facilities and/or operations.
5.3 CITY OF SAN MATEO and its employees, agents and contractors shall comply with all applicable local, state, and federal laws and regulations including those laws which govern worker health and safety and reporting the use, handling, treatment, removal, or disposal of toxic or hazardous substances, materials or wastes, including without limitation all substances described in the definition of Hazardous Materials set forth in Exhibit B attached hereto and incorporated herein, which may exist on the Properties (hereinafter "Hazardous Materials"); and shall obtain all required regulatory and governmental permits and licenses necessary to perform the work hereunder; shall conduct their operations on the Properties so as to avoid unfavorable impact upon the environment; shall comply with all applicable provisions of the Environmental Quality Act of 1970 (California Public Resources Code, Sections 21,000, et. seq.); and shall take all required steps to minimize dust and noise in conformance with neighborhood and governmental standards.
5.4 All tools, equipment, and other property taken upon or placed upon the land by the CITY OF SAN MATEO shall remain the property of the CITY OF SAN MATEO and may be removed by the CITY OF SAN MATEO at any time within a reasonable period after the expiration of this permit or right-of-entry. CITY shall not be responsible for any tools, equipment or other property stored 4 of 6
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or left on the Properties by the CITY OF SAN MATEO or its employees, agents and contractors.
5.5 Two (2) weeks prior to its entry onto the Properties, CITY OF SAN MATEO shall provide CITY with certificates of insurance or self-insurance acceptable to CITY from any contractor used by CITY OF SAN MATEO to conduct the activities covered by this Right of Entry, showing CITY as an additional insured party upon request and effective for the term of this right of entry. Insurance Coverage provided by contractors shall meet, at a minimum, the requirements set forth in Exhibit C attached hereto and incorporated herein.
5.6 CITY OF SAN MATEO and its employees, agents and contractors shall properly and lawfully transport and dispose of any and all drill cuttings, purged water and Hazardous Materials generated by the work of such parties on the Properties.
5.7 CITY OF SAN MATEO hereby agrees to indemnify, defend, assume all liability for and hold harmless CITY and its officers, employees, agents and representatives from any and all liability for any loss, damage, liability, or liability for damages, whether for loss of or damage to Properties, or injury to. or death of persons, which may arise out of operations by CITY OF SAN MATEO, its employees, agents or contractors on the Properties, except as such loss or damage as is caused by or arises out of the active negligence or willful misconduct of CITY, its agents, officers or employees. The foregoing shall include any loss, damage, claim, or liability for damages or injury caused by or resulting from generation of Hazardous Materials, or the creation of increased hazard to the public from existing materials arising from the operations of CITY OF SAN MATEO, its employees, agents or contractors.
5.8 Nothing herein shall be deemed to relieve the CITY OF SAN MATEO, its employees, agents or contractors from responsibility for any loss, damage, claim, or liability for damages or injury resulting from its activities conducted on CITY property.
5.9 If any action of the CITY OF SAN MATEO employees or agents in the exercise of this right-of-entry results in damage to the real property, the CITY OF SAN MATEO will, at its option, either repair such damage or make an appropriate settlement with the CITY. 5 of 6
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5.10 Nothing herein shall be construed as a grant of title or any interest in the Properties.
5.11 Nothing herein shall be construed as an admission of liability by CITY of its responsibility as to any Hazardous Materials which may be found on the Properties, nor, except as expressly provided herein, as an admission of liability by CITY OF SAN MATEO as to any Hazardous Materials which may be found on the Properties.
5.12 CITY OF SAN MATEO shall obtain and maintain all necessary permits from the relevant agencies and comply with all current laws, ordinances, orders, rules, regulations and permits with respect to its performance of the activities relevant to this right of entry.
5.13 All work shall meet the requirements of the Standard Specifications of the City of Hollister for Public Works Construction.
5.14 CITY OF SAN MATEO will provide CITY with copies of all reports, data, maps, and other documentation prepared concerning the work at the Properties.
5.15 CITY shall have access to observe and to inspect any and all activities during the term of this Right of Entry.
6. Termination of Right of Entry. Either party shall have the right to terminate this Right of Entry, without cause, by giving not less than seven (7) days written notice of termination.
7. Notices. All notices given in conjunction with this Agreement shall be written, and shall be effective three (3) days after deposit in the U.S. Mail, first class postage prepaid to the applicable address stated below, or to such other address as the party may designate by written notice:
CITY OF SAN MATEO: CITY OF SAN MATEO
Public Works Department
330 W. 20th Ave
San Mateo, CA 94403
Attn: Matt Fabry, Director of Public Works
(650) 522-7300
CITY OF HOLLISTER: City of Hollister
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William Via
Public Works Department
1321 South Street
Hollister, CA 95023
(831)-636-4370
8. Headings and Titles: The captions and paragraphs of this Right of Entry are only to assist the parties in reading and understanding this Right of Entry and shall have no effect upon the construction or interpretation of any part thereof.
IN WITNESS WHEREOF, the parties have executed this instrument the day and year first above written.
"CITY"
APPROVED AS TO FORM: CITY OF HOLLISTER, a municipal corporation By:
Name Name
Title Title
“CITY OF SAN MATEO”
CITY OF SAN MATEO, a municipal
government agency
By:
Matt Fabry
Public Works Director
Date:
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EXHIBIT B
HAZARDOUS MATERIALS
For the purpose of this Agreement, “Hazardous Materials” shall mean any and all (a) substances, products, by-products, waste, or other materials of any nature or kind whatsoever which is or becomes listed, regulated or addressed under any Environmental Laws, and (b) any materials, substances, products, by-products, waste, or other materials of any nature or kind whatsoever whose presence in and of itself or in combination with other materials, substances, products, by-products, or waste may give rise to liability under any Environmental Law or any statutory or common law theory based on negligence, trespass, intentional tort, nuisance, strict or absolute liability or under any reported decisions of any state or federal court; and (c) any substance, product, by-product, waste or any other material which may be hazardous or harmful to the air, water, soil, environment or affect industrial hygiene, occupational, health, safety and/or general welfare conditions, including without limitation, petroleum and/or asbestos materials, products, by-products, or waste.
For the purpose of this Agreement, “Environmental Laws” shall mean and include all federal, state, and local laws, statutes, ordinances, regulations, resolutions, decrees, and/or rules now or hereinafter in effect, as may be amended from time to time, and all implementing regulations, directives, orders, guidelines, and federal or state court decisions, interpreting, relating to, regulating or imposing liability (including, but not limited to, response, removal, remediation and damage costs) or standards of conduct or performance relating to industrial hygiene, occupational, health, and/or safety conditions, environmental conditions, or exposure to, contamination by, or cleanup of, any and all Hazardous Materials, including without limitation, all federal or state superlien or environmental clean-up statutes.
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EXHIBIT C
INSURANCE REQUIREMENTS
CITY OF SAN MATEO shall procure and maintain for the duration of the agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder and the results of that work by the CITY OF SAN MATEO, its agents, representatives, employees or subcontractors.
MINIMUM SCOPE AND LIMIT OF INSURANCE
Coverage shall be at least as broad as:
1.Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit.
2.Automobile Liability: ISO Form Number CA 00 01 covering any auto (Code 1), or if CITY OF SAN MATEO has no owned autos, hired, (Code 8) and non-owned autos (Code 9), with limit no less than $1,000,000 per accident for bodily injury and property damage.
If the CITY OF SAN MATEO maintains broader coverage and/or higher limits than the minimums shown above, the City of Hollister (Entity) requires and shall be entitled to the broader coverage and/or the higher limits maintained by the CITY OF SAN MATEO. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the Entity.
Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:
Additional Insured Status
Entity, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the CITY OF SAN MATEO including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the CITY OF SAN MATEO’s insurance (at least as broad as ISO Form CG 20 10 11 85 or if not available, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 if a later edition is used).
Primary Coverage
For any claims related to this contract, the CITY OF SAN MATEO’s insurance coverage shall be primary and non-contributory and at least as broad as ISO CG 20 01 04 13 as respects the Entity, its officers, officials, employees, and volunteers. Any C-2
insurance or self-insurance maintained by the Entity, its officers, officials, employees, or volunteers shall be excess of the CITY OF SAN MATEO’s insurance and shall not contribute with it. This requirement shall also apply to any Excess or Umbrella liability policies.
Umbrella or Excess Policy
The CITY OF SAN MATEO may use Umbrella or Excess Policies to provide the liability limits as required in this agreement. This form of insurance will be acceptable provided that all of the Primary and Umbrella or Excess Policies shall provide all of the insurance coverages herein required, including, but not limited to, primary and non-contributory, additional insured, Self-Insured Retentions (SIRs), indemnity, and defense requirements. The Umbrella or Excess policies shall be provided on a true “following form” or broader coverage basis, with coverage at least as broad as provided on the underlying Commercial General Liability insurance. No insurance policies maintained by the Additional Insureds, whether primary or excess, and which also apply to a loss covered hereunder, shall be called upon to contribute to a loss until the CITY OF SAN MATEO’s primary and excess liability policies are exhausted.
Notice of Cancellation
Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to the Entity.
Waiver of Subrogation
CITY OF SAN MATEO hereby grants to Entity a waiver of any right to subrogation which any insurer of said CITY OF SAN MATEO may acquire against the Entity by virtue of the payment of any loss under such insurance. CITY OF SAN MATEO agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the Entity has received a waiver of subrogation endorsement from the insurer.
Self-Insured Retentions
Self-insured retentions must be declared to and approved by the Entity. The Entity may require the CITY OF SAN MATEO to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or Entity. The CGL and any policies, including Excess liability policies, may not be subject to a self-insured retention (SIR) or deductible that exceeds $25,000 unless approved in writing by Entity. Any and all deductibles and SIRs shall be the sole responsibility of CITY OF SAN MATEO or subcontractor who procured such insurance and shall not apply to the Indemnified Additional Insured Parties. Entity may deduct from any amounts otherwise due CITY OF SAN MATEO to fund the SIR/deductible.
Policies shall NOT contain any self-insured retention (SIR) provision that limits the satisfaction of the SIR to the Named. The policy must also provide that Defense costs, including the Allocated Loss Adjustment Expenses, will satisfy the SIR or deductible.
Entity reserves the right to obtain a copy of any policies and endorsements for verification.
Acceptability of Insurers
Insurance is to be placed with insurers authorized to conduct business in the state with C-3
a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the Entity.
Claims Made Policies (note – should be applicable only to professional liability, see below)
If any of the required policies provide claims-made coverage:
1. The Retroactive Date must be shown, and must be before the date of the contract or the beginning of contract work.
2. Insurance must be maintained, and evidence of insurance must be provided for at least five (5) years after completion of the contract of work.
3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the contract effective date, the CITY OF SAN MATEO must purchase “extended reporting” coverage for a minimum of five (5) years after completion of work.
Verification of Coverage
CITY OF SAN MATEO shall furnish the Entity with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause and a copy of the Declarations and Endorsements Pages of the CGL and any Excess policies listing all policy endorsements. All certificates and endorsements and copies of the Declarations & Endorsements pages are to be received and approved by the Entity before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the CITY OF SAN MATEO’s obligation to provide them. The Entity reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time. Entity reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
Special Risks or Circumstances
Entity reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.