J-18_Access_and_User_Agreement_rev_002_01102018.pdf

UNCLASSIFIED

DEPARTMENT OF THE NAVY

Access and User Agreement

For

USS SAMPSON FY18 DSRA

N4523A – 18 – R – 0550

Attachment J-18

Background:

1. Purpose. To provide the LMA with the access and user agreement information that will be required in order to perform ship repair operations in Vigor Shipyard.

Obligations:

1. Inspection. The LMA shall independently inspect the Vigor Shipyard facility (Yard), the Vigor Equipment, and Vigor’s Resources, and will confirm that they are suitable for LMA purposes, and accepts the Yard, the Vigor Equipment and the Services AS IS. The LMA will not modify or alter the Yard or any Vigor Equipment, and the LMA acknowledges that Vigor will not be obligated to make any improvements or modifications to the Yard, to the Vigor Equipment, or to any other personal property or improvements at the Yard, or to terminate, remove or replace any Vigor Resource.

2. Physical Access. The LMA will not allow any person to access the Yard other than LMA or assigned LMA subcontractors and LMA teaming partners who need to access the Yard in order for the LMA to operate, maintain and/or repair the Vessel.

3. Vessel Docking and Un-Docking Evolutions. LMA represents, warrants and agrees that if the Vessel uses the dry-dock, the LMA’s Project Manager must: (a) be present during each docking and un-docking evolution of the Vessel; (b) accompany the Docking Contractor during the dry-dock walkthrough prior to the ship’s docking and un-docking evolutions and (c) assure that adequate handling lines are placed on the Vessel and manned upon its return to the water. The LMA will provide reports to the Docking Contractor monthly during the ship’s availability and within 7 days prior to docking and un-docking of the ship. The LMA shall maintain ship’s weight and moment and provide said report to the Docking Contractor to support stability calculations for docking and un-docking the ship.

4. Cooperation. LMA understands that Vigor, its other LMAs and their respective personnel may also be working at the Yard during the Term. LMA will not block any roadways or interfere with or delay the work of Vigor, its other LMAs or any of their personnel or resources.

5. Compliance with Law. LMA will ensure that LMA, the Vessel, the LMA Equipment, and the LMA’s Personnel and Resources at all times while present at the Yard comply with all local, state and federal laws, ordinances, regulations and orders, including those related to equal employment opportunity laws, minority and disadvantaged and women business enterprise laws, the Occupational Safety and Health Act in its federal and state versions, tax laws, prevailing wage laws, and all other laws that apply to LMA, the Vessel, and LMA’s personnel and resources.

6. Permits, Fees, and Licenses. LMA will be responsible for obtaining, paying for, and maintaining all necessary permits, fees, licenses, assessments, inspections, taxes, approvals and certificates relating to the Vessel, LMA, and the LMA Equipment. In addition, LMA will (a) ensure that each of its Resources has all permits, licenses, work authorizations, and security clearances; (b) select and supervise the performance of its Resources; (c) use only adequately trained Resources to work on the Vessel; and (d) maintain a sufficient labor pool to complete the work on the Vessel by the last day of the Regular Term.

7. Safety; Environmental; Sanitation, Housekeeping, Maintenance and Repair. Without in any way limiting LMA’s obligations under Section 5 (Compliance with Law) above or Section 15 (Termination) below:

7.1 Safety. LMA will, at least 24-hours before the Vessel’s arrival at the Yard, give Vigor written notice of any hazardous, extremely flammable, corrosive, or explosive material on or in the

Vessel that poses a significant risk of harm to property or person. LMA will, and will ensure that its Resources, while present at the Yard, exercise due care for the protection of life and property from injury or damage. Without limiting the preceding, LMA will at all times: (i) comply with Vigor’s safety and security guidelines for the Premises, as they may be modified from time to time (available at http://vigor.net/, or upon request); and (ii) conform to the highest safety practice standards while at the Yard. LMA acknowledges that the Yard is a tobacco-, alcohol- and drug-free facility. LMA will ensure that its Resources comply with Vigor’s tobacco-, drug- and alcohol-free work environment and with Vigor’s other policies.

LMA will, at its expense, conduct post-accident and reasonable-cause drug and alcohol screening tests.

7.2 Environmental Best Practices. LMA will, and will ensure that the Vessel, the LMA Equipment, and LMA’s Resources at all times while present at the Yard comply with: (i) all local, state and federal laws, ordinances, regulations and orders related to environmental protection; the use, storage, generation, production, treatment, emission, discharge, remediation, removal, disposal or transport of any hazardous substances; or any other environmental matter; and (ii) Vigor’s environmental Best Management Practices, as they may be modified from time to time (available at http://vigor.net/ or upon request).

7.3 Sanitation, Housekeeping, Maintenance and Repair. LMA will, while present at the Yard:

(i) properly dispose of all debris, trash, and hazardous materials brought onto the Yard or generated or released by the Vessel, LMA’s Equipment, LMA’s Resources, or otherwise related to LMA’s work at the Yard and will keep the Yard free from debris and unsafe conditions; (ii) maintain the Berth, the Storage Area and, when being used for the benefit of LMA and/or the Vessel, the Vigor Equipment, in as good condition as when LMA obtained access to the Yard (fair wear and tear excepted); and (iii) take reasonable precautions to protect the Yard, the Vigor Equipment, the Vigor Resources, the LMA Equipment and other LMA personal property, and the personal property of others. LMA will, at Vigor’s option, either repair or pay Vigor to repair, any damage to the Yard, to the Vigor Equipment or to any other personal property or improvements at the Yard caused by LMA, the Vessel, its owner or their Resources. LMA will notify Vigor immediately upon the occurrence of any such damage.

8 Project / Site Management. The person specified in the LMA Request will serve as LMA’s project manager under the applicable Contract. LMA’s project manager will oversee the Vessel, the LMA Equipment, and the LMA’s Resources, will be the primary point of contact between LMA and Vigor, and will have the power and authority to bind LMA and the Vessel. The person specified in the Vigor Response will serve as Vigor’s site manager. Vigor’s site manager will oversee the performance of the Services, will be the primary point of contact between LMA and Vigor, and will have the power and authority to bind Vigor. Neither Party may reassign or remove its project or site manager without reasonable advance notice to the other Party. LMA acknowledges that Vigor’s site manager and other Vigor representatives may at any time be present at the Yard and may inspect LMA’s compliance with the Contract. LMA will provide Vigor’s representatives reasonable access to the Berth and the Storage Area and any other portion of the Yard occupied by LMA or its Resources. Any approval or inspection of LMA’s work, procedures, processes, or schedule will not in any way limit or diminish LMA’s obligations, or increase or expand Vigor’s liability, under this Agreement.

9 Non-solicitation. This section is removed and not applicable.

10 Signage. LMA will not, without Vigor’s prior consent (which it may grant or withhold in its sole discretion), erect any temporary or permanent signs on or at the Yard. All signs installed by LMA at the Yard must be removed by the last day of the Term and the sign location returned to its former state.

11 Termination. LMA will, within five (5) days following the undocking of the Vessel: (a) remove from the Yard: (i) the Vessel, (ii) the LMA Resources, and (iii) the LMA Equipment; (b) remove from the Yard and from all Vigor Equipment, and properly dispose of (i) all oil and any residue that has escaped from the Vessel, the LMA Equipment, and any other equipment, and (ii) all sand and other debris generated in connection with LMA’s work on the Vessel; and (c) return the Yard to the same or better condition as it was on the first day of the Regular Term (fair wear and tear excepted).

12 Disclaimer of Warranties. Vigor makes no representations or warranties whatsoever, and expressly disclaims all representations and warranties, express or implied, as to the condition or suitability of the Yard, the Vigor Equipment or the Services for any purpose, and Vigor expressly disclaims the warranties of merchantability, fitness for a particular purpose, and all other express and implied warranties, whether arising by law, course of dealing, course of performance, usage of trade or otherwise.

13 Limitation of Liability. Vigor will not be liable to the vessel, to the LMA, to the LMA’s Resources or to any person for any direct, indirect, incidental or consequential damages, for any lost profits, lost business opportunities, loss of use or down time, or for any punitive, OR FOR ANY punitive, exemplary, or special damages, arising under or related in any way to the Yard, the Vigor Equipment, the Vigor Resources, or any Contract, regardless of the legal theory under which those damages are sought, and even if Vigor was advised of the possibility of those damages or that loss.

Without limiting the preceding, in no event will Vigor be liable to the LMA, to the Vessel, or to any other person for an amount greater than the fees Vigor received under the contract giving rise to the claim.

14 Indemnification

(a) Personal Injury. LMA will defend Vigor, Vigor’s affiliates, and their owners, officers, directors, Resources, and agents (collectively with Vigor, the “Vigor Group”) from and against any demand, claim, suit, action, lawsuit, proceeding (including a proceeding under the US Bankruptcy Code), judgment, settlement, appeal or other post judgment proceeding, and whether asserted in contract, tort, strict liability or otherwise (each, a "Claim") for personal injury, death, and/or damage to property asserted against any member of the Vigor Group by LMA, the Vessel, any LMA Resource or any other person related to or in privity of contract with LMA or any of LMA’s affiliates (collectively with LMA, the “LMA Group”), and LMA will indemnify and hold harmless each member of the Vigor Group from and against all liability, damages, fines, penalties, punitive damages, costs, expenses, attorney fees, and other losses (each, a “Loss” and collectively, the “Losses”) arising from each such Claim in connection with, arising out of, or related to the Master Agreement, any Contract, the Services, the Vigor Resources, or the Vessel (including unseaworthiness of the Vessel and any inaccuracies in any Docking Plan), including Claims and Losses resulting from the sole, joint, or concurrent negligence, negligence per se, gross negligence, statutory fault, strict liability or other legal liability of any member of the Vigor Group. To the extent necessary to make LMA’s indemnity obligations enforceable under this Section, LMA waives any immunity it might otherwise have with respect to state or federal workers’ compensation laws or industrial accident laws, and acknowledges that this provision was mutually negotiated.

(b) Environmental Injury. LMA will indemnify, defend, and hold harmless Vigor and the other members of the Vigor Group from and against all Claims asserted against the Vigor Group arising from or related to the release of hazardous materials, air pollution and/or any other violation of applicable law by any member of the LMA Group or by Vigor in connection with its performance of the Services, and all Losses arising from those Claims.

(c) Other Injury. LMA will indemnify, defend, and hold harmless Vigor and the other members of the Vigor Group from and against all other Claims asserted against the Vigor Group incident to, in connection with, or arising from or related to: (i) LMA’s use of the Yard, the operation of the LMA Equipment; (ii) any negligent act or omission by LMA or any of its Resources or the unseaworthiness of the Vessel; (iii) breach by LMA or any of its Resources of any of LMA’s representations, warranties or covenants; (iv) violation by LMA or any of its Resources of any applicable law; or (v) any claim that any of LMA’s Resources are employees of Vigor.

15 Insurance

Without limiting Customer's obligation to indemnify Vigor or any of Customer's other obligations under the Master Agreement or any Contract, Customer will maintain at its own expense (and will confirm that all of its contractors and subcontractors present at the Yard carry and maintain at their own expense) the following insurance:

(a) Workers' Compensation Insurance with statutory limits, and employer's liability insurance with limits of not less than one million US dollars ($1,000,000), with an Alternate Employer Endorsement (WC 00 03 01) showing Vigor and its affiliates as the alternate employer, and USL&H, Jones Act and Maritime Employer's Liability insurance coverage as applicable.

(b) All risk property insurance for Vigor's property in Customer's care custody and control, on a full replacement basis, including real property and improvements, personal property, and property of others, including theft and the perils of fire. The deductible for this insurance must not exceed USD $5,000. This insurance must name Vigor as a loss payee as its interest may appear.

(c) Marine General Liability insurance, including Protection and Indemnity coverage, with endorsements as necessary to cover liability arising from premises operations, independent contractors, products-completed operations hazard, personal injury, and contractual liability, with a limit of not less than two million US dollars ($2,000,000) each occurrence and four million US dollars ($4,000,000) aggregate. This insurance must (i) be written on an occurrence basis; and (ii) name Vigor and its affiliates as additional insureds.

(d) Business Automobile Liability Insurance for any auto, including limitation, owned, non-owned and hired autos, with a limit of not less than two million US dollars ($2,000,000) per occurrence. This insurance will (i) be written on an occurrence basis; and (ii) name Vigor and its affiliates as additional insureds.

(e) Boat and Shipyard Pollution Liability Insurance with a limit of not less than three million US dollars ($3,000,000) per occurrence/aggregate. This insurance must (i) be written on an occurrence basis; and (ii) name Vigor and its affiliates as additional insureds.

(f) An Umbrella/Excess Liability policy in an amount not less than three million US dollars ($3,000,000), covering excess liabilities for the above coverages and the acts of Customer's Resources and agents.

All policies (a) will be written by insurers that are licensed to do business in the state where the Yard is located; (b) will be written by insurers that have a policyholder's rating of not less than A VIII in the most current edition of Best's Rating Guide; (c) will provide that Vigor will be given thirty (30) days' advance written notice of cancellation or reduction in coverage, (d) waive subrogation in favor of Vigor and its affiliates; and (e) will be primary and noncontributory with respect to any insurance or self-insurance programs maintained by Vigor. If Customer fails to comply with these insurance requirements, Vigor may, but need not, at its election (x) terminate this Agreement and any Contract immediately, notwithstanding any notice requirement that would otherwise apply, and recover damages from Customer resulting from that failure; or (y) purchase required insurance coverage and charge the premium to Customer. Any limits specified in this Section may be achieved through a combination of primary and umbrella or excess liability policies. On or prior to the Effective Date, and as the insurance policies expire, Customer will deliver copies of certificates of insurance for each required policy to Vigor at the address for notices and will send a copy of those certificates to: Vigor, Risk Management, 5555 N. Channel Avenue, Portland, OR 97217 (Attn: Risk Management).