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HomeMy WebLinkAboutTESORO REFINING AND MARKETING COMPANY LLC (3)ht;f RFOUlRED Clekui"Il(ul,= G!�l?fu+"!t. MAR %w 2019 A-2019-010-02 Ei RW KA} Access Agreement L-tik cb~ W This Access Agreement ("Access Agreement") is made and effective as of the last date of signature below ("Effective Date") and Is by and between Tesoro Refining & Marketing Company LLC, a Delaware limited liability company (" icensee"), and the City of Santa Ana ("Licensor"), with respect to certain real property commonly known as 2245 S. Main Street, Santa Ana, California as more particularly described on Exhibit "A" attached to this Access Agreement and incorporated herein by reference (" ro ert "). Licensor and Licensee are hereafter sometimes singularly referred to as a "Part ' and collectively referred to as the "Parties." Recitals A. Whereas, the Parties are parties to a Purchase and Sale Agreement for Acquisition of Real Property and Bilateral Escrow Instructions ("Purchase and Safe Agreement") regarding the Property; B. Whereas, one of the conditions to closing escrow under the Purchase and Sale Agreement is the full execution of this Access Agreement. NOW, THEREFORE, in consideration of the mutual promises contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Licensor and Licensee hereby agree as follows: 1. Condition Precedent. This Access Agreement shall not take effect, nor have any force or effect, unless and until escrow closes under the Purchase and Sale Agreement and the Licensor acquires Licensee's fee interest in the Property as a result of the same. 2. Grant of License. Licensor, for itself and all successors -in -interest to its interest in the Property, and on behalf of all present and future tenants and occupants of the Property, hereby grants to Licensee and Licensee's parent, affiliated and subsidiary companies, and all of their employees, consultants, contractors, representatives, and agents (collectively, "Designated Representatives"), as well as any of their assigns, an irrevocable, non-exclusive license ("License") for the Term (as defined below), at no charge or rent, to access and enter onto the Property and perform any and all Corrective Action(s) (as that term is defined below) on, under, and at the Property that Licensee desires or is required to undertake or cause at the Property. Nothing in this Access Agreement shall be construed as requiring or obligating Licensee to undertake or cause any Corrective Action. The "Term" of this Access Agreement commences on the date Licensor first acquires fee title to the Property from Licensee and continues until one (1) year after Licensee obtains a "No Further Action" letter from the governmental agency with jurisdiction for issuing the same with respect to the Property. 3. Notice. Except in the event of an emergency, and except for any routine, "turnkey" activities, Licensee (or Licensee's Designated Representatives) will provide Licensor a minimum of 48 hours' notice prior to entering the Property via telephone, electronic mail, or facsimile transmission using the telephone number, electronic mail address or facsimile number designated by Licensor below. 4. Performance of Corrective Actions. Licensee shall perform any Corrective Actions (defined herein) it performs at the Property pursuant to this Access Agreement as follows: (a) Licensee shall conduct all Corrective Action in a manner so as to minimize any inconvenience or disruption to any business activities at the Property. Subject to the indemnity granted below for death, bodily injury, and property damage, Licensee and its Designated Representatives shall not be liable or responsible for any direct, special, consequential or incidental economic damages or harm resulting from Its exercise of the License granted hereunder, including, but not limited to, any lost profits, lost rents, lost, income, lost sales, Page 1 of 6 construction delays, and any other costs, expenses, and economic damages; and Licensor hereby waives, releases, acquits, and discharges the Licensee and its Designated Representatives from the same. (b) For all activities at the Property pursuant to the License granted herein, Licensee shall acquire all applicable permits and other authorizations required by any Agency (defined herein) for any Corrective Action under any applicable laws and regulations. (c) Licensee shall not allow any lien to encumber the Property as a result of any of its activities at the Property pursuant to this Access Agreement, and Licensee agrees to cause the removal or release of any such lien within thirty (30) days after notice thereof. (d) Licensee shall keep the Licensor informed of the progress of all Corrective Action at the Property conducted pursuant to the License granted herein by providing Licensor with copies of any and all reports and written communications to any Agency regarding such Corrective Action. (e) Licensee will properly maintain and repair any and all equipment and improvements installed and/or used at the Property pursuant to the License granted herein, and will also keep all portions of the Property where any such Corrective Action occurs in good, clean, and sanitary condition. Licensee will also promptly repair, at Licensee's sole cost and expense, any damage to the Property caused by its activities pursuant to the License granted herein. Upon completion of its activities at the Property pursuant to the License granted herein, Licensee will restore the Property to the condition in which the Property existed prior to Licensee's activities under the License granted herein, including, but not limited to, removing any equipment and improvements It installed and/or used at the Property (except that with respect to any monitoring wells installed at the Property, Licensee may close or cap such wells in compliance with all applicable laws and regulations). 5. Notice. Except for notice of access given in accordance with Section 3, all notices, demands, and requests required or given by a Party pursuant to this Access Agreement shall be in writing, and shall be deemed delivered on the earlier of (i) the posting of the notice, designated for delivery via United States Postal Service, registered or certified mail, return receipt requested, or United States Priority Mail with delivery confirmation, addressed to the addressee at its address set forth below or at such other address as such Party may have previously specified by notice delivered in accordance with this section, or (ii) actual receipt by the addressee: If to Licensee: Tesoro Refining & Marketing Company LLC 301 Ocean, Suite 1600 Long Beach, California 90802 Attn: Real Estate Department With a copy to: Tesoro Refining & Marketing Company LLC 19100 Ridgewood Parkway San Antonio, Texas 78259 Attn: Legal Department (Real Estate) If to Licensor: City of Santa Ana. 20 Civic Center Plaza Santa Ana, CA 92701 Attn: Executive Director, Public Works Agency Page 2 of 6 With a copy to: City of Santa Ana 20 Civic Center Plaza Santa Ana, CA 92701 Attn: Clerk of the Council 6. Governing Law: Venue, This Access Agreement shall be governed by and construed in accordance with the laws of the State of California. 7. Successors and Assigns. This Access Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the Parties, including, but not limited to, any successors -in -interest to Licensor's interest in the Property. Licensor shall provide prompt notice to Licensee of any assignment of this Access Agreement. Licensor represents, warrants, and covenants that it will not sell or transfer its interest in the Property unless the buyer or transferee agrees to an assignment of this Access Agreement to such buyer or transferee without modification, amendment, or alteration. In the event of any such assignment, Licensor shall not be released from any obligations or duties hereunder that arise or accrue after any assignment. Furthermore, Licensor shall not lease the Property after the Effective Date without disclosing this Access Agreement to the tenant, obtaining a written acknowledgement from the tenant that it has read and understands this Access Agreement, and securing written confirmation from the tenant that it also.agrees to be bound by all terms and provisions of this Access Agreement that are applicable to the Licensor (which shall not in any way release Licensor from any of its duties and obligations under this Access Agreement). 8. Definitions. (a) Agency. The term "A enc " shall mean all local, state, and federal governmental agencies with jurisdiction over the Property. (b) Corrective Actionfs). The term "Corrective Action ° or "Corrective Actions" shall mean any assessment, corrective, ,remedial, removal, and monitoring activities of any petroleum products, toxic substances, hazardous wastes, hazardous materials, hazardous substances and the like on, under, and/or at the Property, including, but not limited to (a) the placement, installation, retention, operation, use, repair, replacement, maintenance, and removal of equipment, tools, and related facilities; (b) the temporary storage of investigation or remediation -derived wastes; (c) sampling, testing, monitoring, injecting, Inspection, equipment operation, maintenance, and other investigative and remedial work; (d) the installation, drilling, monitoring, maintenance, and abandonment of wells, trenches, and other equipment used to facilitate any Corrective Action; (e) treatment, including landfarming of soils; and (f) other related environmental activities as may be desired by Licensee. 9, Counterparts. This Access Agreement may be executed in counterparts, which counterparts shall constitute a single, integrated agreement, and may be delivered by facsimile. 10. Modification; Waiver. This Access Agreement cannot be modified, amended or altered, or any of the terms hereof waived, except by an instrument in writing (referring specifically to an intent to modify, amend, or alter this Access Agreement) signed by the Party against whom enforcement of the modification, amendment, alteration or waiver Is sought. 11. Recording. This Access Agreement shall not be recorded. However, at the option of Licensee, a memorandum of this Access Agreement may be recorded by Licensee in the office of the county recorder in which the Property is located and/or at such other appropriate location or place as may be determined by Licensee. Licensor agrees to promptly execute in recordable form any such memorandum requested by Licensee, provided that the form and substance thereof is acceptable to Licensor in its reasonable discretion. 12. No Admission of Liability or Responsibility. By entering into this Access Agreement, Licensee makes no admission of liability or responsibility regarding the environmental condition of the Property, and Page 3 of 6 neither this Access Agreement nor any acts performed pursuant thereto may be introduced into evidence to establish such liability or responsibility. 13. Severability. If one or more provisions of this Access Agreement are held to be unenforceable under applicable law, such provision(s) shall be excluded from this Access Agreement, and the balance of the Access Agreement shall be Interpreted as if such provision(s) was/were so excluded, and shall be enforceable In accordance with its remaining terms. 14. Entire Agreement: No Amendment to Purchase and Sale Agreement. There are no oral representations, stipulations or warranties, express or implied, with respect to the subject matter of this Access Agreement which are not fully set forth herein. Except for all of the terms and conditions of the Purchase and Sale Agreement and any other agreements and documents executed pursuant thereto (none of which are amended, modified, or deleted by this Access Agreement), all prior oral or written or contemporaneous promises, representations, agreements or understandings, express or implied, regarding the subject matter of this Access Agreement are expressly merged herein and superseded hereby. 15. Headings. The headings in this Access Agreement are intended solely for convenience of reference and shall not in any manner amplify, limit, modify or otherwise affect the Interpretation of any provision of this Access Agreement; and the masculine, feminine or gender neutral, as well as the singular and plural, shall be deemed to include the other gender and numbers whenever the context so indicates or requires. 16. Further Assurances. Licensor and Licensee agree to execute and deliver such other documents and to take such other actions as may reasonably be required to effectuate the purpose and subject matter of this Access Agreement. 17. Waiver. No purported waiver by either Party hereto of any term or provision of this Access Agreement or of any breach thereof shall be deemed to be a waiver of such provision or breach unless such waiver is in writing and signed by the Party making such waiver. No such waiver shall be deemed to be a subsequent waiver of such provision or a waiver of any subsequent breach of the same or any other provision hereof. 18. No Joint Venture. The Parties acknowledge and agree that this Access Agreement shall not be construed to create a partnership, joint venture, employment or agency relationship between the Parties. 19. Indemnification. Licensee shall indemnify, defend, and hold Licensor (and Its officers, managers, representatives, agents, and employees) harmless from and against any and all liabilities, claims, suits, judgments, actions, investigations, proceedings, costs, and expenses (including attorneys' fees and costs) arising out of any death, bodily injury, or property damage caused by any act and/or omission by Licensee or its Designated Representatives at the Property in connection with Licensee's exercise of its rights under this Access Agreement. [Signatures on Next Page] Page 4 of 6 IN WITNESS WHEREOF, the Parties have duly entered into this Access Agreement on the dates set forth below. Licensee: Tesoro Refining & Marketing Company LLC L ~ Date: /y l `� i��Ul , 2019 MLT By: Approved As To Form Licensor: City of SanLto-a--) Date: 2✓ Z 2019 Steven A. Mendoza Acting City Manager Atter .� Date: 2019 4-Norma Mitre Acting Clerk of the Council Approved as to Form: City Attorney FOR APPROVAL: Fuad SJJSweiss, PE, PLS Executi Director Public orks Agency Date:_ / Lar-CA17 2019 Date: 3.- :�-8 .2019 Page 5 of 6 Exhibit "A" to Access Agreement LEGAL DESCRIPTION ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: LOTS 21, 22, 23, 24 AND THE SOUTHERLY 7 FEET OF LOT 20, IN BLOCK "B" OF TRACT NO. 638, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP THEREOF RECORDED IN BOOK 19, PAGE 17 OF MISCELLANEOUS MAPS, RECORDS OF SAID ORANGE COUNTY. Assessor's Parcel Number: 403-141-08 Page 6 of 6