Loading...
HomeMy WebLinkAboutChamberlain Mfg. - 9/25/17Please return this copy to: City Clerk & Finance Dept. 715 Mulberry St. Waterloo, IA 50703 ACCESS AGREEMENT This ACCESS AGREEMENT ("Agreement") is made and entered into as of L, Z5' 2017, by and between Chamberlain Manufacturing Corporation ("Licensee") and the City of Waterloo, Iowa ("Licensor"). WHEREAS, Licensor is the owner of real property located at 550 Esther Street, Waterloo, Iowa (the "Property"); and WHEREAS, Licensee wishes to enter upon Licensor's Property for the purpose of performing all activities required of Licensee by the United States Environmental Protection Agency at the Property (the "Work") and Licensor desires to permit such access; and NOW THEREFORE, in consideration of the mutual covenants and agreements described below, and for good and valuable consideration, receipt of which is hereby acknowledged, it is agreed: 1. Access. Licensor does hereby grant to Licensee and its agents, employees, consultants, contractors and subcontractors (collectively its "Representatives") along with the United States Environmental Protection Agency, the Iowa Department of Natural Resources and their respective representatives, contractors, and subcontractors thereof, reasonable access to the Property in connection with the Work. This Agreement replaces in full the Access Agreement between Licensor and Licensee dated May 5, 2014 (the "Previous Agreement"). The parties agree that the Previous Agreement is hereby rescinded as of the date of this Agreement. 2. Restrictions on Use of Property. Licensor shall refrain from using the Property in any manner that will pose an unacceptable risk to human health or to the environment due, or interfere with or adversely affect the implementation, integrity, or protectiveness of the Work or interfere with Licensee's performance of the Work, including, but not limited to, the following: (a) Ensuring that all equipment placed on the Property in connection with the Work remains undisturbed, including providing fencing and security as necessary; (b) Not using or permitting the use of groundwater beneath the Property or, to the extent necessary, in the vicinity of the Property; (c) Not disturbing any soil on the Property without taking proper precautions to prevent exposure to or dispersion of any hazardous contaminants in the soil; and (d) Not permitting any activities, including demolition or construction activities, to occur on the Property without the express written agreement of Licensee. Licensor acknowledges that restrictions on the future use of the Property and, with respect to the use of groundwater, surrounding properties may be recorded against the deed to the Property and, with respect to the use of groundwater, surrounding properties in connection with the Work, including, but not limited to, prohibitions on the use of groundwater, limitations on the future uses of the Property, requirements for vapor mitigation systems or barriers in any buildings constructed on the Property and protection for workers during construction activities on the Property. Licensor agrees that it will cooperate with Licensee in recording such restrictions against the deed, including, but not limited to, upon request by Licensee, promptly executing and recording any necessary notices or other documents. In addition, at the request of Licensee, Licensor agrees that it will take all necessary actions to restrict the use of groundwater at surrounding properties including, but not limited to, a prohibition on the use of groundwater by ordinance. Licensor shall cooperate with Licensee in obtaining a revised order from the United States Environmental Protection Agency memorializing the work to be performed on the Property by Licensee and Licensor's obligations and agreements pursuant to this Agreement. 3. Permits. Licensee shall obtain, at its sole cost and expense, all permits and authorizations of whatever nature from any and all governmental agencies as are necessary for the Work. In connection therewith, Licensee will comply and will cause its Representatives to comply with all applicable federal, state and local laws, regulations, permits, permit conditions, standards, directives, guidelines, and judicial and administrative orders and decrees as are applicable to all activities conducted by Licensee or its Representatives on the Property pursuant to this Agreement (collectively "Laws"). Licensor shall cooperate with Licensee by executing, upon request by Licensee, any applications or other documents necessary to obtain any governmental approvals required in connection with the Work. 4. Approvals and Notifications. All notices, demands, requests and other communications required by the Agreement shall be given to the following person: For Licensor: For Licensee: City of Waterloo, Iowa 715 Mulberry St. Waterloo, IA 50703 Attention: Mayor Chamberlain Manufacturing Corporation c/o The Duchossois Group Inc. 444 W. Lake St. Chicago, IL 60606 Attention: l'Ir. Fric Reeves - Vice President and General Counsel 5. Utilities. Licensor agrees to promptly provide Licensee and its Representative with copies of any maps of the Property in Licensor's possession showing the location of underground utilities. Notwithstanding this Section 5, Licensee and its Representatives shall not be responsible for the repair of underground utilities that are not shown on the maps provided by Licensor. 6. Indemnity. Licensee agrees to be responsible for and does hereby hold Licensor harmless from any and all claims, liabilities, damages, losses, costs and expenses arising out of any personal injury or property damage (individually and collectively, "Damages") which directly results from Licensee or its Representatives' negligence in connection with Licensee's -2- access to the Property pursuant to this Agreement; provided however, Licensee shall have no indemnity obligations under this Agreement or otherwise for Damages incurred by Licensor through its actions or omissions covered by Sections 2 and 5, above. Notwithstanding any other provision of this Agreement, Licensee does not assume any responsibility for any condition (including, but not limited to, the environmental condition) at the Property that does not directly result from Licensee's negligence in connection with Licensee's access to the Property pursuant to this Agreement including, but not limited to, any environmental condition on the Property existing as of the date of this Agreement. 7. Release. Subject to Section 6 above, Licensor hereby waives, releases, acquits, and forever discharges Licensee, its officers, directors, partners, employees or agents, or any other person acting on behalf of Licensee, of and from any and all claims, actions, causes of action, demands, rights, damages (including, but not limited to, consequential damages), costs, expenses, or compensation whatsoever, direct or indirect, known or unknown, foreseen or unforeseen, which Licensor now has or may have or which may arise in the future on account of or in any way growing out of or in connection with the Property or Licensee's occupancy thereof including, but not limited to, claims for past investigation costs, consulting costs, laboratory costs, attorneys' fees, loss of rent, and increased costs of insurance. 8. Express Denial of Responsibility or Liability. It is expressly understood and agreed that neither the execution of this Agreement, nor the tender or receipt of any payment, nor the performance of any obligation recited herein is intended or shall be understood as an acknowledgement of responsibility, admission of liability or of any fact, or other expression reflecting upon the merits of any claim against Licensee; and any such responsibility or liability is expressly denied. 9. Term. This Agreement shall continue and shall not be revocable by Licensor so long as Licensee is required to have access to the Property in order to perform the Work. Section 2 and 7 of this Agreement shall survive termination of this Agreement. In the event Licensor sells or otherwise transfer any interest in the Property, Licensor shall require that the transferee execute an agreement providing Licensee with all rights provided to Licensee pursuant to this Agreement, including requiring the transferee to abide by and fulfill all of Licensor's obligations in this Agreement, including, but not limited to, Licensor's obligations in Section 2 and the release in Section 7. Licensor shall notify Licensee in writing prior to any proposed transfer of any interest in the Property. 10. Choice of Law. This Agreement shall be governed by Iowa substantive law, excluding choice of law rules. 11. Complete Agreement. This document constitutes the full and entire agreement between the parties hereto. There are no other understandings, oral or written, relating to the subject matter of this Agreement. This Agreement may not be changed, modified or amended, in whole or in part, except in writing, signed by all parties hereto. 12. Severability. If any term, condition or provision of this Agreement, or the application thereof to any person, party or circumstance, shall be held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, covenants, - 3 - conditions and provisions of this Agreement and the application thereof to any person, party, or circumstance, shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. 13. Binding Agreement. Licensor represents and warrants that he or she is authorized to execute this Agreement on behalf of Licensor including, but not limited to, obtaining any necessary consents or approvals of any governing body of Licensor, and that this Agreement, when executed, shall be a valid and binding obligation of Licensor, in accordance with its terms. AGREED AND ACCEPTED BY: CITY OF WATERLOO, Licensor By:. Title: \Asit9X--- C RLAIN yi A ;`i ACTURING CORPORATION, Licensee By: ric eeves Title: vi re PrPsi cunt and General Counsel -4 STATE OF IOWA COUNTY OF BLACK HAWK )ss This record was acknowledged before me on this s/ day of October, 2017, by Quentin Hart, as Mayor of the City of Waterloo, Iowa. STATE OF IOWA COUNTY OF BLACK HAWK )ss Notary Public This record was acknowledged before me on this L day of September, 2017, by Eric Reeves, as Vice President and General Counsel o amberlain Manufac ring Corporation. -5- Notar ublic {'6"" tf E `IV JOHNSON '-� ' COMMISSION NO.725372 ' MY COMMISSION EXPIRES o w NOVEMBER 4, 2018