PROPERTY ACCESS AGREEMENTPROPERTY ACCESS AGREEMENT
This Property Access Agreement (this "Agreement") is entered into as of dy /
.l , 2019 (the "Effective Date"), by and between CITY OF CLEARWATER ("Owner"), and
ENVIRONMENTAL RISK MANAGEMENT, INC. ("Consultant"). Owner and
CONSULTANT are sometimes, as applicable, individually or collectively referenced herein as a
"party" or the "parties."
RECITALS:
A. Owner owns the certain parcel # 15-29-15-16830-003-0070 of real property located
Court Street, Clearwater, Florida (the "Property").
B. Consultant is an Agency Tenn Contractor for the Florida Department of Environmental
Protection (the "Department") that is conducting a site assessment of that certain real property
located at 915 Court Street, Clearwater, Florida, which is adjacent to the Property, under FDEP
Facility/Project # 52/8624655 (the "Site Assessment").
C. In connection with the Site Assessment, Consultant desires access to enter upon the
Property to conduct subsurface and groundwater investigations. Owner has agreed to grant
Consultant access to enter upon the Property for such purpose in accordance with the terms and
conditions of this Agreement.
AGREEMENTS:
For valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Owner and Consultant hereby agree as follows:
1. Term. This Agreement will commence upon the execution hereof and, except as
otherwise provided in this Agreement, will remain in effect until the expiration date of the
current purchase order ( #B4632C ), which is December 24 , 2019 . A new Agreement will be
reached should additional site assessment or site rehabilitation activities be required by the
Department.
2. Permitted Activities. The Owner gives its permission to Consultant to undertake
the activities necessary to complete the Site Assessment activities detailed in purchase order
#B4632C and related documents ("Permitted Activities"). The Permitted Activities shall not
unreasonably interfere with Owner's operations and business activities conducted on the
Property. The Permitted Activities are limited to the collection of soil, groundwater samples,
including the installation of monitoring wells. Any monitoring wells installed on the Property
shall be completed within 8 -inch flush -mounted traffic bearing manholes and secured in a 2 ft. x
2 ft. concrete pad. Consultant shall perform the Permitted Activities in compliance with all
applicable laws, rules and regulations, and will obtain all permits necessary for the conduct of
the Permitted Activities. To the extent that Consultant requires access to the adjacent right -
of -way on Chestnut Street, Consultant shall obtain, by separate permit issued by the City,
access to the Chestnut Street right-of-way, in accordance with current City permitting
regulations. Upon receipt of a properly issued permit from the City for work in the
Chestnut Street right-of-way, the restoration, insurance and indemnity provision of this
Agreement, as set forth in paragraphs 9-13 below, and the governing law, venue and
prevailing party attorneys' fees provisions, set forth in paragraphs 17-19 below, shall apply
to any work performed by Consultant in the right-of-way.
3. Permitted Parties. The Owner hereby gives its permission to CONSULTANT and
its authorized agents and representatives (collectively, the "Entrants") to enter the Property for
the sole purpose of completing and overseeing the completion of the Permitted Activities, subject
to the provisions of this Agreement.
4. Cost of Activities. The State of Florida shall bear the costs to undertake the
activities necessary to complete the Permitted Activities. Owner shall have no liability to
Entrants for payment for any activities performed by Entrants at the Property.
5. No Liens or Encumbrances. Consultant does not have the authority to do
anything that may result in a lien or encumbrance against the Property in connection with the
Permitted Activities. Without limiting the foregoing, however, Consultant agrees to promptly
pay when due all costs associated with the Permitted Activities and not to cause, permit or suffer
any lien or encumbrance to be asserted against the Property or Owner related to the Permitted
Activities.
6. Notice and Observation. Entrants shall deliver to Owner, attention Joe DeCicco
at Joseph.DeCicco@MyClearwater.com, a written request to enter the Property at least seven (7)
days prior to the intended time of entry. The request shall specify the intended date of entry and
shall provide an estimated timeframe with which to complete the proposed Permitted Activities.
Owner may require that the Permitted Activities be conducted outside of normal business hours.
Owner shall have the right, but not the obligation, to have at Owner's expense, its
representatives, including, without limitation, and at Owner's option, Owner's engineers,
contractors and environmental consultants to observe Entrants' activities without interfering with
same.
7. Items to be Furnished. Consultant will provide Owner with copies of any reports
that Consultant submits to any regulatory entity at the same time that such reports are transmitted
to any regulatory authority.
8. Entrants' Losses or Injuries. The Owner shall not be liable for any injury, damage
or loss on the Property suffered by the Entrants or its employees or agents not caused by the
gross negligence, willful misconduct, or intentional acts of the Owner.
9. Restoration. Consultant shall restore the Property as near as possible to its pre -
entrant condition. Consultant shall remove from the Property any materials generated while
completing the activities that comprise the Permitted Activities including, for example, all drill
cuttings and/or development or purge water (investigative derived waste, or investigative derived
waste ("IDW")). Consultant will be responsible for the proper staging and disposal of all IDW
in accordance with applicable laws and regulations. No IDW shall remain on the Property for a
period in excess of twenty-four (24) hours.
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10. Insurance. Consultant shall provide or cause the Entrants, as appropriate, to
provide:
a. commercial general liability insurance covering its activities at the
Property ("CGL Insurance"), with limits in the following amounts for
i. bodily injury at $1,000,000 per occurrence and $2,000,000 general
aggregate,
ii. property damage at $1,000,000 per occurrence and $2,000,000
general aggregate;
b. workers' compensation insurance (or the equivalent) ("WC Insurance"),
with limits to satisfy all statutory requirements; and
c. employers' liability insurance ("EL Insurance"), with limits of not less
than $500,000 per occurrence (collectively, "Required Insurance
Policies").
11. Insurance Requirements. Consultant shall ensure that the following requirements
apply to relevant Required Insurance Policies, as set forth below:
a. Additional Insured The CGL Insurance shall name Owner as an
additional insured.
b. Primary. The CGL Insurance shall be primary as regards to the insurance
of the additional insured.
c. Waiver of Subrogation. The CGL Insurance, the WC Insurance, and the
EL Insurance shall contain waiver of subrogation endorsements in favor of
Owner.
12. Insurance Certificates. Certificates evidencing the Required Insurance Policies
shall be furnished to Owner prior to entry onto the Property and shall provide that such insurance
shall not be cancelled or materially changed with fewer than thirty (30) days' notice to Owner.
13. Indemnification. Consultant agrees to indemnify, and hold harmless Owner, and
its City Council and employees, from and against all claims, suits, damages, liabilities,
judgments, fines, attorneys' fees, penalties, losses, costs or expenses arising out of or caused by
the negligence or willful misconduct of Entrants, or Consultant's invitees, in connection with the
performance of the Permitted Activities, or as a result of the negligence or willful misconduct of
Entrants, or Consultant's invitees, in connection with the access provided to Consultant under
this Agreement, or as a result of any breach of this Agreement by the Entrants; provided,
however, Consultant shall have no obligation to indemnify or hold harmless Owner, or its City
Council and employees, against that portion of any liability to the extent caused by, resulting
from, or arising out of the negligence or willful misconduct of Owner, or its City Council and
employees. The indemnity provided for above shall include, but not be limited to, liability for
damages resulting from the personal injury or death of an employee of Consultant, or its
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subcontractor, regardless of whether Consultant, or its subcontractor, has paid the respective
employee under the Workers' Compensation Law of the State of Florida or other similar federal
or state laws for the protection of employees. The indemnities provided for in this Paragraph
shall survive the termination or expiration of this Agreement.
14. Execution in Counterparts and by Electronic Signature. This Agreement may be
executed in any number of counterparts, and if so executed, shall be effective as against each of
the respective parties when that party has executed at least one such counterpart. Execution may
be accomplished by the use of PDF and electronic signatures.
15. Severability. If any term or provision of this Agreement is declared invalid by a
court of competent jurisdiction in a final ruling from which no appeal is taken, the remaining
provisions of this Agreement will be unimpaired, and the invalid or unenforceable provision will
be replaced with a provision that is valid and enforceable and that comes closest to the parties'
intention as to the invalid or unenforceable provision.
16. Modification. Any modification of the terms of this Agreement must be in
writing and signed by Owner and Consultant.
17. Governing Law. This Agreement shall be construed and enforced in accordance
with the laws of the State of Florida.
18. Venue. Venue for any action, suit, or proceeding brought to recover any sum due
under, or to enforce compliance with, this Agreement shall lie in the court of competent
jurisdiction in and for Pinellas County, Florida; each party hereby specifically consents to the
exclusive personal jurisdiction and exclusive venue of such court
19. Prevailing Party Attorneys' Fees. If any court action is brought for the
enforcement of this Agreement, or because of an alleged dispute, breach, default, or
misrepresentation in connection with any provision of this Agreement, the successful or
prevailing party shall be entitled to recover reasonable attorneys' fees, court costs, and all out of
pocket expenses, including nontaxable court costs (including, without limitation, all such fees,
costs, and expenses incident to appellate, bankruptcy, and post judgment proceedings), incurred
in that court action or any appeal, in addition to any other relief to which the party may be
entitled. Attorneys' fees include legal assistant fees, expert witness fees, investigative fees,
administrative costs, and all other charges billed by the attorney of a prevailing party, and further
include all such fees expended by a prevailing party in any effort to establish the entitlement to,
and/or the proper amount of, such fees and costs due pursuant to this provision.
20. No Partnership. Nothing contained in this Agreement shall be deemed or
construed by the parties or by any third party to create the relationship of principal and agent, or
of partnership, or of joint venture, or of any other association between Owner and
CONSULTANT.
21. No Admissions. This Agreement shall not constitute or be used as evidence of
any admission of law, fact, or liability or a waiver of any right or defense by any of the parties
for any contamination discovered on the Property.
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IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the
Effective Date.
ENVIRONMENTAL RISK
MANAGEMENT, INC.
By:
77
Its: Principal Engineer
Print Name: Tim Terwilliger
Date: 03/28/2019
CITY OF CLEARWATER, FLORIDA
Approved as to form:
By: (1)141 £JL
William B. Horne, II, City Manager
1_2,x6
Date:
Laura Lipowski Mahony
Assistant City Attorney
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