TVA_FACILITY_ACCESS_AGREEMENT_DRAFT_7-27-17.pdf

FACILITY ACCESS AGREEMENT

This FACILITY ACCESS AGREEMENT (“Agreement”) is entered into as of the ______ day of ____________________, 200___, by and between __________________, a ____________ corporation (“Licensee”), and the Tennessee Valley Authority, a corporate agency and instrumentality of the United States of America, created by and existing under the Tennessee Valley Authority Act of 1933, as amended (“TVA”).

(Licensee and TVA may be referred to herein, individually, as a “Party” and collectively, as the “Parties.”)

WHEREAS, Licensee desires to __________________________at TVA’s ________________________site (the “Site”); and

WHEREAS, TVA has agreed to provide Licensee limited access to the Site for the above-described purpose subject to the terms and conditions hereof;

IN CONSIDERATION OF THE MUTUAL COVENANTS HEREINAFTER

STATED, THE PARTIES HERETO AGREE AS FOLLOWS:

1. TVA hereby grants to Licensee a personal, nonexclusive license to go upon and temporarily occupy and use, subject to all of the terms and conditions hereinafter stated, limited portions of the Site as designated by TVA for the purpose of

2. In all matters relating to this license, ___________, _______________, Knoxville, Tennessee 37902, telephone (865) __________, shall act for TVA, and _______________, _______________, ______________, telephone (____) __________, shall act for Licensee, unless or until TVA or Licensee shall designate a different representative.

3. The Licensee shall maintain the Site in as good a condition as it was in when first entered upon pursuant to this Agreement and shall remove its continuous vibration monitoring system upon the termination or expiration of this Agreement. If the Licensee shall fail to restore the Site to its original condition and to make any repairs or replacements required by this article, TVA may make such repairs or replacements, and in that event the Licensee shall reimburse TVA the full cost thereof within thirty (30) days after notice of payment therefor.

4. Either Party may terminate this Agreement at any time by giving written notice to the other, specifying the date of termination. If not earlier terminated, this Agreement shall terminate on _____________.

5. The Licensee shall not, during its occupancy and use of the Site, reconstruct, relocate, or structurally alter any structure or fixed improvement upon the

Site, unless such reconstruction, relocation, or structural alteration is made with the prior written approval of TVA.

6. TVA reserves the right to enter upon and occupy the Site for the purpose of inspecting the Site, conducting any operations or programs upon the Site, or monitoring Licensee’s activities on the Site.

7. The Licensee’s occupancy and use of the Site are subject to, and the Licensee shall comply with, all applicable laws and governmental regulations and all rules, regulations, restrictions, and conditions prescribed by TVA with respect thereto.

The Licensee shall specifically comply with TVA’s site access and security requirements, including but not limited to all requirements relating to gate access, check-in and check-out, search procedures, and any required clearances, personnel testing, and investigations.

8. Any land-disturbing activities shall be conducted by the Licensee in accordance with best management practices as defined by Section 208 of the Clean Water Act and implementing regulations to control erosion and sedimentation so as to prevent adverse water quality and related aquatic impacts. Such practices shall be consistent with sound engineering and construction principles; applicable federal, state, and local statutes, regulations, or ordinances; and proven techniques for controlling erosion and sedimentation. The Licensee shall do all in its power to prevent and suppress forest and grass fires upon or in the vicinity of the Site.

9. With regard to its activities on the Site, Licensee will control all emissions of pollutants that might be discharged directly or indirectly into the atmosphere, into any stream, lake, reservoir, watercourse, or surface or subterranean waters, or into or on the ground from any part of the Site, in full compliance with all applicable standards and requirements relating to pollution control of any kind now in effect or hereafter established by or pursuant to federal, state, or local statutes, ordinances, codes, or regulations. If there is a discharge of a hazardous substance, material, or waste, or of any pollutant or other substance, in or from the Site by Licensee or any person or entity for which Licensee is responsible for which a cleanup, remediation, restoration, removal, or other action (hereinafter, individually and collectively, referred to as “environmental response”) is ordered or required pursuant to any federal, state, or local statute, regulation, or ordinance (including, without limitation, discharges which spread or move in whole or in part beyond the Site to other areas owned by TVA), Licensee shall bear full responsibility for the cost (including, without limitation, natural resources damages and costs) of said environmental response, and shall not seek any contribution or indemnification from TVA for all or any portion of said costs; provided, however, that nothing in this covenant is intended to or shall preclude Licensee from seeking indemnification or contribution from any other person or entity, and provided further that nothing herein shall create any rights in or be enforceable by any person or entity other than TVA, or its successors and assigns.

10. The Licensee agrees to fully indemnify and hold the United States of America, TVA, and their directors, officers, agents, and employees harmless from and against any and all claims, demands, liability, losses, damage, costs, or expenses (including attorney’s fees and other costs of defense), of any nature or kind whatsoever, arising out of or otherwise resulting from the Licensee’s activities on the Site or the condition or use of the Site, except liability for personal injuries, or property damage caused by the sole negligence of TVA, its directors, officers, agents, or employees.

11. No assignment of this Agreement or any interest therein and no sublicense for any purpose shall be made or granted by the Licensee without the prior written consent by TVA. TVA shall retain the right to disapprove or deny access to any contractor or subcontractor of Licensee which is proposed to go upon the Site. All requirements, conditions, and obligations of this Agreement shall be made applicable to Licensee’s contractors and subcontractors hereunder.

12. The Licensee agrees that it does not, and shall not, claim at any time any interest or estate of any kind or extent whatsoever in the Site, by virtue of this Agreement or its occupancy or use of the Site hereunder.

13. TVA does not warrant or represent that the Site is safe, healthful, or suitable for the purposes for which it is permitted to be used under the terms of this Agreement.

14. To the extent applicable, the requirements of Executive Order 11246 and 41 C.F.R. § 60-1.4 are hereby incorporated by reference.

15. The Licensee shall have the right to pass and repass over existing access roads of TVA in going to and from the Site. Such existing access roads will be designated by TVA.

16. Without limiting any obligations or liabilities under this Agreement, the Licensee and any tier contractors shall, at its own expense, provide and maintain in effect throughout the term of this Agreement (a) Commercial General Liability insurance with bodily injury and property damage combined single limits of at least $1,000,000 per occurrence, (b) workers compensation coverage meeting statutory requirements and employer’s liability coverage in the amount of $1,000,000, and (c) commercial automobile liability insurance (owned, hired, and non-owned) insurance with a combined single limit of $1,000,000. The policies of insurance shall be written by an insurance company or companies which shall be rated “A-“ or better by A. M. Best Company and are licensed to do business in Alabama, or are an accepted surplus lines carrier. The insurance carrier or carriers and form of policies shall be subject to TVA’s acceptance.

The Licensee shall require its insurer(s) to amend its Commercial General Liability, Commercial Automobile Liability and, if applicable, Umbrella or Excess Liability policies to provide that:

(a) TVA, the United States of America, their directors, officers, agents, and employees are additional insureds under this policy; and

(b) It states that it is primary, noncontributory insurance; and

(c) It includes an insurer’s waiver of rights of subrogation in favor of TVA, the United States of America, their directors, officers, agents and employees; and

(d) It contains a cross liability or severability of interest clause; and

(e) It states the policy may not be canceled, non-renewed, or materially changed by the insurer without giving thirty (30) days’ prior written notice to TVA (except that notice of cancellation for nonpayment of premium may be ten (10) days).

Prior to beginning activities under this Agreement, Licensee and any tier contractors shall cause its insurer(s) or agent(s) to provide TVA with an annual Certificate of Insurance evidencing the policies and endorsements above. Failure by the Licensee to provide and maintain current, valid certificates of insurance throughout the term of this Agreement shall be material breach of the Agreement for which TVA may exercise any rights or remedies it may have under this Agreement or by law. If requested by TVA, the Licensee shall promptly provide or cause its agents to provide a certified copy of the insurance policy.

Licensee will promptly notify TVA of any accidents on and/or damage to or at the Site or the facilities thereon.

17. This agreement shall be governed by Federal law. Any action arising out of or related to performance under this agreement shall be brought in the United States District Court for the Eastern District of Tennessee at Knoxville, and shall be tried to the court without a jury, the right to which both Parties hereby waive.

18. The terms and conditions of this Agreement shall be subject to such other, additional, or different terms and conditions relating thereto which may be contained in subsequent written agreements between the Parties.

IN WITNESS WHEREOF, the Parties have executed this Agreement on the day and year first above written.

_________________________ TENNESSEE VALLEY AUTHORITY

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