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Contract - OC Sanitation - 2017-04-26kN SITE ACCESS AND LICENSE AGREEMENT ORIGINAL This Site Access and License Agreement dated alA A4P , 2017 ("Effective Date"), is entered into by and between the Orant a County Sanitation District ("OCSD"), and Costa Mesa Sanitary District ("CMSD"). OCSD and CMSD are sometimes hereinafter individually referred to as "Party" and hereinafter collectively referred to as "Parties." RECITALS WHEREAS, OCSD is a duly organized County Sanitation District existing pursuant to the County Sanitation District Act, California Health and Safety Code section 4700, et seq., providing for the ownership, operation, and maintenance of wastewater collection, treatment, and disposal facilities within Orange County, and is responsible for safely collecting, treating, and disposing of wastewater generated by more than 2.5 million people living and working in Orange County; and WHEREAS, CMSD is a sanitary district that is responsible for residential trash collection and transmittal to a recycling facility for recycling and disposal. The CMSD also provides liquid waste collection and transmission to OCSD facilities for treatment and disposal; and WHEREAS, CMSD owns and operates the Mendoza Pump Station in the alley west of Mendoza Drive, north of the flood control channel, the real property being located at 2900 Mendoza Drive, Costa Mesa, CA 92626, commonly known as the Mendoza Pump Station (the "Property") and depicted on the site map and project area attached hereto as Exhibit "A;" and WHEREAS, OCSD previously conducted a demonstration study to evaluate the effectiveness of utilizing hydrogen peroxide added to wastewater to reduce odor and corrosion in wastewater by utilizing the Mendoza Pump Station; and WHEREAS, based on the results of this demonstration study, OCSD desires to use this location as a permanent odor treatment facility, subject to the termination and other rights provided herein; and WHEREAS, as a reflection of its shared interest in treating sewage in the interest of the public's health, safety, and welfare, CMSD intends to allow OCSD access to the site. NOW, THEREFORE, in consideration of the mutual obligations, representations, and promises contained in this Site and License Agreement, OCSD and CMSD hereby agree as follows: Recitals. The Recitals above are deemed true and correct, are hereby incorporated in this Section as though fully set forth herein, and each Party to this Agreement acknowledges and agrees that they are bound by the same. 1223128.2 2. Site Access. CMSD hereby grants OCSD (and its consultants and contractors) a temporary license to enter upon the Property for purposes of conducting odor control measures, described in more detail in Exhibit "B" attached hereto and incorporated herein, and installing odor control facilities. Odor control measures will consist of one tank and a conduit that will run through CMSD's sewer lines, which will contain ferrous chloride, magnesium hydroxide and/or calcium nitrate for delivery of a chemical compound or gas (the odor control measure) within OCSD's sewer lines downstream. OCSD intends for CMSD lines to be used as a transportation conduit only and. the conduit will not allow the odor control measure to escape into CMSD lines. CMSD will cooperate with OCSD, as necessary, to provide access to relevant areas of the Property. CMSD agrees to cooperate with OCSD as necessary to provide access to relevant areas of the property. OCSD agrees to keep CMSD informed of the names of its authorized consultants and contractors, and those persons shall utilize identification byway of uniforms and/or vehicles with signs or logos or other identifying measures when accessing the Property. 3. Site Storage. The Parties agree that odor control treatment at this location will require additional storage for equipment maintained by CMSD that is regularly stored at the Property and will need to be relocated for the term of this Agreement. CMSD has identified storage space at the Orange Coast College (OCC) Boatyard located near Adams Avenue in Costa Mesa. The boatyard provides secure, outdoor storage and is available to CMSD 24 hours a day, seven days per week. A map depicting the location and images of the storage area are attached hereto as Exhibit "C." OCSD agrees to pay CMSD $12,600 for the cost of storing said equipment for twelve consecutive months. OCSD agrees to make payment on the first month CMSD begins storing equipment at OCC boatyard and every year thereafter the License Agreement continues. OCSD agrees to pay CMSD for payment adjustments not exceeding a ten percent (10%) increase over the initial year, as required by OCC. If OCC terminates the storage agreement with CMSD, OCSD agrees to work collaboratively with CMSD to find another storage location. If a storage location cannot not be mutually agreed upon by both parties then this Agreement shall terminate as described in Section 4. Should the Parties amend this Agreement to shorten the Term, CMSD will reimburse OCSD for any portion of the annual pre -payment not yet applied for that year provided CMSD can obtain the refund of any monies advanced, plus any penalties or early termination costs. 4. Term. This Agreement shall remain in full force and effect and renew annually until February 28, 2027, unless extended by the Parties by written agreement or until sooner terminated in writing by both Parties. 5. Equipment. By entering into this License Agreement, CMSD understands that OCSD may bring onto the Property and install such equipment or machinery as may be reasonably necessary to conduct the intended odor control measures. 6. Unreasonable Interference and Prior Notice. OCSD's use of the Property shall not interfere with CMSD's operations, the business of its lessees, if any, or cause any nuisance to neighboring properties or persons thereon to the maximum extent 2 1223128.2 possible. OCSD shall give CMSD at least two (2) business days' notice prior to entering the Property for regular maintenance, or provide a schedule of regular maintenance that would eliminate the need for additional notice. In the event of an emergency, OCSD will provide CMSD with as much notice as possible prior to entering the Property. CMSD and any lessees, licensees, or agents of CMSD, if any, agree not to prohibit, interfere with, or obstruct such entry or the odor control measures in place at the Property, and not to cause or permit interference or obstruction by others. 7. Material Data Handling Sheets. OCSD and its contractors and consultants shall provide the CMSD with a copy of each Safety Data Sheet (SDS) for those chemical substances that may be used at the Property and/or may pose a hazard to CMSD employees. 8. Restoring Condition of Property. OCSD agrees to minimize, to the extent practicable, interference with the activities of CMSD's employees, guests, customers, tenants, occupants, and invitees on and to the Property, to maintain its equipment, hazards, and other materials in an orderly manner while they are located on the Property, and to remove all debris, trash, equipment, and other materials used by OCSD immediately upon completion of installation of odor control facilities and/or regular maintenance efforts. Additionally, OCSD agrees to, to the extent feasible, at the completion of each day's work, to restore the Property to as close to the same condition as it existed at the commencement of that day. OCSD, at its sole cost, is responsible for soils, water, and/or waste characterization, and the lawful disposal of same. 9. Original Condition of Property. OCSD accepts the Property conditions as they may exist from time to time without any representation or warranty from CMSD, and without any duty of CMSD to warn of any conditions. Accordingly, OCSD agrees to assume all risks associated with entry and presence on the Property. 10. Preparatory Activities. OCSD agrees to assume full responsibility for determining the presence or absence of underground utilities and structures prior to conducting subsurface work at the Property, and to perform all other relevant preparatory work. OCSD also agrees to provide appropriate notification to, and obtain all required permits from, applicable regulatory authorities prior to conducting work at the Property. 11. Cost. OCSD agrees that any and all work performed at, near, beneath, or related to the odor control facilities at the Property shall be at the sole cost and expense of OCSD. OCSD agrees to keep the Property free and clear of all liens in any way related to the operation of odor control facilities. OCSD agrees to reimburse CMSD for the actual costs of water, electricity, and other utility services, if any, used by OCSD at the Property. 12. Insurance. OCSD shall at all times during the term of this license maintain at its own expense insurance of the types and amounts indicated below. Such insurance shall be in the form and substance satisfactory to CMSD, shall be issued by carriers 3 1223128.2 which are authorized to do business in California, and shall be maintained until the term of this license agreement is ended. OCSD shall cause CMSD to be named as an additional insured on each contractor and subcontractor's Comprehensive General Liability insurance policy. ' A. General Liability. $2,000,000 per occurrence for bodily injury, personal injury, and property damage and $4,000,000 aggregate for bodily injury, personal injury, and property damage. B. Automobile Liability. $2,000,000 combined single limit per accident for bodily injury and property damage, including non -owned and hired vehicles. C. Workers' Compensation. Workers' Compensation, in accordance with the Workers' Compensation Act of the State of California for a minimum of $1,000,000 or such minimum limits as the required by the State, whichever is greater. 13. Indemnification. OCSD agrees to indemnify and defend CMSD from any claims or liability arising out of OCSD's odor control measures at the Property, including but not limited to claims of pollution from the processes used. OCSD shall also indemnify CMSD from any claims or liability caused by its contractors and consultants. CMSD agrees to indemnify and defend OCSD from any claims or liability resulting from CMSD's operation of the Property. . 14. Limited Access. OCSD agrees that entry upon the Property shall be limited to the extent necessary or desirable for the performance of odor control for the purposes expressed in this License Agreement. 15. Temporary License. This License Agreement is intended and shall be construed as a temporary license to enter and conduct odor control operations upon the Property, and not as a grant of easement or any other interest in the Property. Except as expressly set forth herein, no other rights are created by this License Agreement. 16. Attorneys' Fees. If either of the Parties is required to engage an attorney or institute an action in order to enforce any of the provisions of this License Agreement, the prevailing Party shall be entitled to reasonable attorneys' fees and court costs which may be incurred. 17. Notices. All notices or other communications required or permitted hereunder shall be in writing and shall be personally delivered or sent by registered or certified mail, postage prepaid, return receipt requested, delivered or sent by recognized overnight courier and shall be deemed received upon the earlier of: (i) the date of delivery to the address of the person to receive such notice if 4 1223128.2 delivered personally or by messenger or overnight courier; or (ii) three (3) business days after the date of posting by the United States Post Office if by mail. Notices or other communications shall be addressed as follows: To District: Orange County Sanitation District Post Office Box 8127 Fountain Valley, CA 92728-8127 Attention: James D. Herberg, General Manager To CMSD: Costa Mesa Sanitary District 290 Paularino Avenue Costa Mesa, CA 92626 Attention: Scott Carroll, General Manager 18. Jurisdiction. In the event of a dispute regarding performance or interpretation of this Agreement, the venue for any action to enforce or interpret this Agreement shall lie in the Superior Court of California for Orange County. 19. No Third Party Beneficiaries. This Agreement is entered into by and for District and CMSD, and nothing herein is intended to establish rights or interests in individuals or entities not a party hereto. This License Agreement shall be binding upon the Parties to this License Agreement and their respective successors, representatives, heirs, and assigns. OCSD shall not assign this License Agreement nor any rights hereunder without the prior written consent of CMSD, which may be given or withheld in CMSD's sole discretion. 20. Force Majeure. Except for the payment of money, neither Party shall be liable for any delays or other non-performance resulting from circumstances or causes beyond its reasonable control, including without limitation, fire or other casualty, Act of God, strike or labor dispute, war or other violence, acts of third -parties, or any law, order, or requirement of any governmental agency or authority. 21. Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in Orange County, California. 22. Entire Agreement. This Agreement constitutes the entire understanding and agreement between the Parties and supersedes all previous negotiations and agreements between the Parties pertaining to the subject matter hereof. 23. Waiver. A waiver of a breach of the covenants, conditions or obligations under this Agreement by either Party shall not be construed as a waiver of any succeeding breach of the same or other covenants, conditions or obligations of this Agreement. 24.Amendments. This Agreement may be modified or amended only by a written document executed by both OCSD and CMSD by a person with authority to execute the same. 1223128.2 25. Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 26. Agreement Execution and Authorization. Each of the undersigned represents and warrants that they are duly authorized to execute and deliver this Agreement and that such execution is binding upon the entity on whose behalf they are executing this Agreement. IN WITNESS WHEREOF, this Site and License Agreement has been executed in the name of the Orange County Sanitation District by its officers, thereu to duly authorized, and executed by Costa Mesa Sanitary District as of this Ui day of 12017. APPROVED AS TO FORM: Bradley R. 14ogin General Counsel 4a� Alan Burns CMSD District Counsel In KellyL re Clerk f the and Orange County Sanitation District By 111A Ic No anNid a wa District Clerk Costa Mesa Sanitary District 12184&2.1 ORANGE COUNTY SANITATION DISTRICT By f,12 reg Sekodrn Chair, Board of Directors COSTA MESA SANITARY DISTRICT Z Mike Scheafer President, Boat d of Directors EXHIBIT "A" MENDOZA DR o L Z z 9 U v� SIMPLY SWEET CAKERY �i U£ O 6 O Z W 9 � � a Pm U£ dM FOi Q a i w rc wG .Un Nap p W K U� - VW62m UYN( ZN� V £ O a STRUCTURE a N a wnci6 2N u£VP rvma R � MENDOZA DR o L z 9 U v� SIMPLY SWEET CAKERY �i m O 6 F Z W 9 � � a m a r a i w rc a W K U� Y7 PARKING a STRUCTURE a N MENDOZA DR o L U v� SIMPLY SWEET CAKERY �i O 6 F j O � I EXHIBIT "B" Z / £ PM w JU� Q <w £26 N uF do rod o � v Nw6KM £ • wZ�Ob a NovQi 11 AAV 6L m2n0z ON 06 rvm� OU' yZ Y 1 r U J 5 PUMP e CONTROL F•ee 1 Y� a J m E T S O 2 O Z .,� - � —ug | ) 0-5 ■ / , ■ own !_ `~o` « ! i .| § � | !§m[r §!§; |] |) |., |! 6 ;» § ,\ 2 _ � � \ ) Mll \: � �§ �\ \ 1 \\ _ !tel° . �\ - ! § 2 ! \ EXHIBIT "C" 0 ' a l? . ,■ O. = • �N U � • '��� I CQ �� r • ml VNt e r� t 0 ' a l? . • U � • '��� I CQ �� r • ml e r� • Ia N � - =I` E !t i, rvbor BNd E u H vd Mao Pry , �. 11 r. 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