PROPERTY ACCESS AGREEMENT (3)PROPERTY ACCESS AGREEMENT
This Property Access Agreement (this "Agreement") is entered into as of November 9
, 2022 (the "Effective Date"), by and between CITY OF CLEARWATER ("Owner"), and
ENVIRONMENTAL RISK MANAGEMENT, LLC. ("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 on
Court Street, Clearwater, Florida (the "Property").
B. Consultant is an Agency Term 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 for thirty-six (36) months from the
Effective Date. 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 the scope of work
attached hereto as Attachment A ("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, subject to the following:
a. 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.
b. 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.
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4876-2224-7230.1
c. The work shall be performed during normal business hours.
d. Consultant shall deliver to Owner a written request to enter the Property at least
seven days prior to the intended time for entry ("Request for Entry"). Owner hereby consents to
notification solely by electronic mail sent to: Joe DiCicco at
Joseph.DeCicco@MyClearwater.com. Each Request for Entry shall specify the intended date(s)
of entry and shall provide an estimated timeframe with which to complete the proposed Permitted
Activities, a description of the proposed Permitted Activities, including, without limitation, the
location of the proposed Permitted Activities on the Property, restrictions on access during the
performance of the proposed Permitted Activities, the equipment and other machinery that will be
utilized for the proposed Permitted Activities, and a list of contractors who will be performing the
proposed Permitted Activities, and such other information as Owner reasonably requires in
connection with such proposed Permitted Activities. 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.
e. Consultant shall be solely responsible for the location of all aboveground and
belowground utilities on the Property that may be impacted by the Permitted Activities and shall
take no action that will result in any impairment to said utilities
f. To the extent that Consultant requires access to the adjacent right-of-way on
Chestnut Street, Consultant shall obtain, by separate permit issued by Owner, access to the
Chestnut Street right-of-way, in accordance with current Owner permitting regulations.
Upon receipt of a properly issued permit from Owner for work in the Chestnut Street right-
of-way, the restoration, insurance, and indemnification provision of this Agreement, as set
forth in paragraphs 8-12 below, and the governing law, venue and prevailing party
attorneys' fees provisions, set forth in paragraphs 16-18 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.
[A04-00046 /249477/1] 2
4876-2224-7230.1
6. 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.
7. 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.
8. 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.
9. 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").
10. 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.
[A04-00046 /249477/1]
4876-2224-7230.1
3
11. 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.
12. 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 Entrant's invitees, in connection with the
performance of the Permitted Activities, or as a result of the negligence or willful misconduct of
Entrants, or Entrant'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 Entrant, or its subcontractor,
regardless of whether Entrant, 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.
13. 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.
14. 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.
15. Modification. Any modification of the terms of this Agreement must be in
writing and signed by Owner and Consultant.
16. Governing Law. This Agreement shall be construed and enforced in accordance
with the laws of the State of Florida.
17. 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
18. 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
[A04-00046 /249477/1] 4
4876-2224-7230.1
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.
19. 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.
20. 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.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the
Effective Date.
ENVIRONMENTAL RISK
MANAGEMENT, LLC.
By:
Its:
Senior Pro'ect Mana
Print Name: Kevin Yue
Date: 11/9/2022
[A04-00046 /249477/1] 5
4876-2224-7230.1
CITY OF CLEARWATER, FLORIDA
Approved as to form:
tiAN" )14,44
Laura Lipowski Mahony
Assistant City Attorney
[A04-00046 /249477/1]
4876-2224-7230.1
6
By:
Jon Jennings, City Manager
Date: 1 i I 14 l Zo Zz—
Attest:
Rosemarie Call
City Clerk
Attachment A
Petcpleum Restoration Program
Scope of Work
9 -Digit Facility ID Number: 528624655
STCM Facility Name: Texaco- Court St
SubPhase(s): SA
Specifications
All work must be performed in accordance with this Scope of Work (SOW) and any attachments, Chapters 62-160, 62-532, 62-777 and 62-780,
F.A.C., all applicable FDEP and Water Management District guidance memoranda, standard Industry procedures and as described in the Agency
Term Contract (ATC).
Copies of all referenced guidelines are available at:
http:/ffioridadep.Aov/waste/petroleum-restoration
Reports must be submitted using the appropriate FDEP forms found at:
http://floridadep.gov/waste/petroleum-restoration/contentiorocedures-ouidance-documents
All work must be conducted in accordance with PRP Standard Specification Details found at:
http://floridadep.00v/waste/petro leum-restoration/content/tempiates-forms-tools-and-guidance
The following tables are included as attachments to this SOW and further represent the details of the scope of work.
❑✓ Water Sampling Table
Task 1 Description: Prepare and submit updated Site Health & Safety Plan (HASP) for continued work (at
to the PRP). Obtain Off -Site Property Access Aggreement (City of Clearwater).
Task 1 Deliverable: Updated HASP.
Task 1 Deliverable Due Date: Friday,
cember30, 202
Task 2 Description: Sample groundwater monitoring wells per Water Sampling Table to establish pre -
startup baseline groundwater conditions. Contingent Funding in this task is only to be
to offset the cost for pay items associated with a Field Request for Change for any open
task.
Task 2 Deliverable: Remedial Action Interim Report to include field notes, groundwater sampling logs,
laboratory analytical report, updated figures and tables: Electronic Data Deliverables (EDDs).
Task 2 Deliverable Due Date: Tuesday, February 2
Attachment A (SOW Template)
[A04-00046 /249477/1]
4876-2224-7230.1
7
Version 04-15-19
1
Attachment A
Petroleum Restoration Program
Scope of Work
9 -Digit Facility ID Number. 528624655
STCM Facility Name: Texaco - Court St
PO End Date: Monday, May 1, 2023
Schedule of Pay trams (SPI)
All unit rates and extended prices for all line item costs associated with this project are provided in the SPI (Attachment B to this Purchase
Order (PO)) and shall not exceed the rates established in the ATC.
Requests for Chang. (RFC)
All requests for changes to the SOW must be submitted in writing and be approved in writing by the FDEP/LP using the RFC form in accordance
with paragraphs 2.A and 26 of the ATC and can be found at:
http://floridadep.gov/waste/Detroieum-restoration/content/templates-forms-tools-and-guidance
Any change which results in an extension of the due dates, PO end date, or a change in quantities or costs, requires that a PO Change Order be
formally issued prior to performance of the revised SOW.
Performance Measures
The FDEP/LP Site Manager will review the submitted documentation to confirm that all work was performed in accordance with the
Specifications referenced above. The FDEP/LP Site Manager will notify the Contractor of acceptance or any deftdencles In the work and/or
deliverables. The Contractor will be given an opportunity to remedy deficiencies at no additional cost to the FDEP.
The FDEP/LP Site Manager will review the work and/or deliverables within the tmeframes established in FDEP guidance documents. The
Contractor will respond to any comments to complete the work and/or deliverables within the timeframe established in the comment letter or
email correspondence.
Attachment A (SOW Template) Version 04-15-19
[A04-00046 /249477/1]
4876-2224-7230.1
8
Attachment A
Petroleum Restoration Program
Scope of Work
9 -Digit Facility ID Number: 528624655
STCM Facility Name: Texaco - Court St
Invoicing, Payments and nuncio Consequences
The Contractor may submit an invoice for a Task upon written notification of acceptance of the work/deliverables by the FDEP/LP Site
Manager. Upon receipt of FDEP/LP written approval of the required documentation for completed portions of each task, the Contractor must
submit an invoice within thirty (30) days. Invoices for completed work may be submitted at any time for fully completed and approved tasks,
but no more frequently than every thirty (30) days, for approved partial tasks. Each invoice request must contain all documentation of
performance as specified in the ATC, this Purchase Order (PO), and its attachments.
Failure to provide all deliverables which are satisfactory or failure to meet the specified deliverable timetables, shall result in non-payment, loss
of retainage, or other financial consequences, and/or termination of the PO, as specified in the ATC. If the deliverable due day occurs on a
weekend, state holiday, or federal holiday the deliverable will be due the following business day.
Retainage shall be withheld in the amount of 5% unless otherwise noted in the SPI, from each payment by the FDEP/LP until completion and
approval of all Tasks. The Contractor shall submit a Release of Claims and request for retainage payment with the final invoice. Payment of
retainage will be reduced by the amount of any assessed financial consequences.
Notice of Field Activities
The Contractor must provide written notification (emails are acceptable) of field activities at least seven (7) calendar days prior to the
commencement of work to all applicable parties including the PRP site manager, PRP Inspector (PRP_Inspector@dep.state.fl.us), site operator,
site owner, RP and affected off-site property owners.
Deliverables
All deliverables under this Purchase Order must be electronic. Paper copies should not be submitted unless the deliverable requires a
Professional Engineer (PE) or Professional Geologist (PG) signature and seal, and the electronic signature and seal does not meet the
requirements in Chapters 61G15 or 61G16, Florida Administrative Code, as applicable.
Attachment A (SOW Template) Version 04-15-19
[A04-00046 /249477/1] 9
4876-2224-7230.1
RDEP Fealty U NA 528624655
Any papk awes 'fond applicable b Oa W work.
Florida Department of Environmental Protection - Petroleum Restoration Program
$TCM Fadlay Name: Texaco - Court St
2 MW.1R
2 MW -5A
MW -7
2
.................................._.
2 MW -13
2 MW -18
2 MW -17
2 MW -18
2 MW -20
1
1
1
2
2
2
MW -21
MW -22
MW -23
2 MW -24
2 MW -25
MW -26
1
1
d
1
1
d
Attachment A (Water Sampling)
[A04-00046 /249477/1]
4876-2224-7230.1
0
14 J 1
4
14
14
14
4
0
10
0
0
0
0"
0!
0
0
0
0
Version 04-15-19
Mexico Lindo
Supermarket
Daisy's Boutique
Court Street
Commercial
Property
Commercial
Property
South
Beaches
Center
Hands
on Health
Massage
Clinic
Commercial
Property
David C.
Levenreich
Law
Clearwater
Primary Care
& Aesthetics
Prospect Towers of Clearwater
Commercial
Property
y
O
v
0
D
0
D
Abandoned
Building
Chestnut Street
m
Thacker
Law Group
PA
Single Family
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Dyna
Fire
Residential
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Residential
Property
Residential
Property
Special Needs
Lawyers
Johnson, Pope, Bokor,
Ruppel & Bums, LLP
Court
Street
Animal
Hospital
Court Street
Sun Proof
Corporation
of Florida
Rita's
Italian
Ice
Former Texaco - Court Street
915 Court Street
Clearwater, Florida 34616
FDEP FACILITY ID# 52/8624655
FIGURE 2:
Site Vicinity Map
APPROXIMATE SCALE
1" = 100'
IraSiffiiffara
DRAFTED BY: ZJM
September 2019
ERMI FILE # E3839B
REVIEWED BY: TAT
ERMI
Environmental Risk Management, Inc.
licensed Engineering & Geology Firm • Assessment & Remediation Consultants
LEGEND
- Property Boundary
Mexico Lindo
Supermarket
Daisy's Boutique
Court Street
Commercial
Property
Commercial
Property
I
South
Beaches
Center
Hands
on Health
Massage
Clinic
Commercial
Prooertv
David C.
Levenreich
Law
Clearwater
Primary Care
& Aesthetics
Prospect Towers of Clearwater
Commercial
Property
m
3
0
m
D
Thacker
Law Group
PA
Single Family
Home /
Dyna
Fire
Residential
Property
Residential
Property
Residential
Property
Court
Street
Animal
Hospital
Chestnut Street
Special Needs
Lawyers
Johnson, Pope, Bokor,
Ruppel & Bums, LLP
Court Street
Sun Proof
Corporation
of Florida
Rita's
Italian
Ice
Former Texaco - Court Street
915 Court Street
Clearwater, Florida 34616
FDEP FACILITY ID# 52/8624655
F GURE 2:
Site Vicinity Map
APPROXIMATE SCALE
1"=100'
E9 W5561
DRAFTED BY: ZJM
September 2019
ERMI FILE # E3839B
REVIEWED BY: TAT
• ERMI
Environmental Risk Management, Inc.
licensed Engineering & Geology Firm • Assessment & Remediation Consultants
LEGEND
- Property Boundary
any pOdsad 4
c
Contaminant Concentrations
all values in micrograms per Liter
Well Identification
Sample Date
8
Benzene
T
Toluene
E
Ethvibenzene
X
Total xylenes
M
MTBE
N
Naphthalene
1
1 Methylnaphthalene
2
2 Methylnaphthalene
T
TRPH
W W W W W 4' W W W N' *
W W W 4, 4, 4' W W W 4, 4,
Retention Pond
W 4, 4' .r ., 4, J' 4, 4, W 4, W W
4, W 4, W 4' H, W W 4, W 4' W
4, tel' * 4' 4, W W 4, 4, W 4, 4, 4,
4, 4, 4, 4, 4, 4, 4, 4, 4, 4, W * 4,
W 4, W W 4, 4' W W W
4, 4, W 4, 4, 4, 4,
Abandoned
Building
4l' 4, 4, W MW_9 .y W H' •Former,t.
UST
W 4, W W W W W 4' W YAW$ �Y MW -2A
U = Below Detection Limit
I= MDL<Result<PQL `t' '' Ni, w 4, 4, W 4, W 4' y 4' w 4, 4' '4' '1'
V = Detected in Sample and 4, 4, 4, 4, 4, y 4, 4, y • 4, 4, W W 4, M19 2019
Method Blank MW -15
Bolded = >GCTL or NADC .41 MW -17 DW -1 MW -22 W `r' W 4' 4, W W * B 0.5581
GCTLS = Groundwater 7/19/2019 . 7/192019 7/19/2019 i i i T 0.412 U
4,
Cleanup Target Levels W. B 0.331 U B 0.331 U B 0.331 U 9•F�0
NADCs = Natural Attenuation '1 T 0.4112 U T 0.412 U T 0.412 U ► 1.06 U
Default Concentrations E 1.19 E 0.384 U E 0.384 U MW -6A 0.367 U
TRPH = Total Recoverable X 1.06 U X 1.06 U X 1.06 U y 4, 4, W / y 8
Petroleum Hydrocarbons 4 M 0.367 U 0.367 U M 0,367 U ' MW -22 1 ✓ �• y 29't
MTBE = Methyl Tert-Butyl Ether 77 3.40 N 0.0545 I N 0.607 W y y W W W 28.1
MDL = Method Detection Limit 1 0.636 `T- 0.0247 1 1 0.419 T 1,240 V
PQL = Practical Quantitation 2 0.923 2 0.0364 I 2 0.0349 1 *
Limit
T 100 U T 100 U T 100 U_ W ,, 4, 4, 4, ormer
• MW -25 MW -2'
W 41' 4, 41' 4, 4Y4, '' 41' 4, MW '7 • W - 4 4, 4, W W
W * W W W W -4-* W * W 4, W �' W W W • M -26 *
MW -11 MW -4A asphalt
v 4' w 4, 4, MW -7 �' �'.'4" MW -21 w 4, 4t, 4' 9. 4' 4, 1
4, W '1 4, H' W 4 4, W T * 'i, 4, 4, `L W *
W 9.
MW 3A
4*
W
W
y y
Sidewalk
W
MW -12
v
MW -19
MW -18
MW -17
MW -23 MW -24
7/19/2019
B 0.331 U
T 0.412 U
7/19/2019
T 0.412 U
Chestnut Street
M 0.367 U
fi 5.03
1 2.59
0.367 U
Sidewalk
T 140IV
7/19/2019
B 0.331 U
T 0.412 U
E 0.384 U
X 1.06 U
" M 0.367 U
N 0.0233 I
0.00845
0.0
T 100U
7/19/2019
B 0.331 U
T 0.412 U
Former Texaco - Court Street
915 Court Street
Clearwater, Florida 34616
FDEP FACILITY ID# 52/8624655
FIGURE 12:
Groundwater Analytical
Concentration Map
APPROXIMATE SCALE
1"=40'
DRAFTED BY: AMW
September 2019
ERMI FILE # E3839B
REVIEWED BY: TAT
�t ERMI
Environmental Risk Management, Inc.
Licensed Engineering & Geology Firm • Assessment & Remediation Consultants
LEGEND
A Deep Monitoring Well
Location
▪ Monitoring Well Location
Destroyed/Missing
Monitoring Well Location
Buried Telephone
16" Water Main
Sewer
Property Boundary
/'\l = GCTLs