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Resolution No. 81111 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 8111 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON APPROVING THE FORM OF, AND AUTHORIZING THE EXECUTION AND DELIVERY OF, AN HISTORIC BUILDING PRESERVATION AGREEMENT AND AUTHORIZING CERTAIN OTHER MATTERS RELATING THERETO WHEREAS, the City of Vernon (the "City"), a municipal corporation duly organized and existing under and by virtue of the Constitution of the State of California (the "State") and its Charter, owns and operates a municipal electric utility system (the "Electric System") providing electric service to the inhabitants of the City; and WHEREAS, in order to assure an adequate and reliable source of electricity to satisfy the load requirements of the inhabitants of the City, the City has determined to construct and operate an approximately 134 megawatt combined cycle electric generating facility (the "Malburg Generating Station Project"); and WHEREAS, the Malburg Generating Station Project is to be constructed and located on approximately 3.4 acres of the City's existing electric generating facility located at 2716 East 50th Street in Vernon, California (the "Station A"); and WHEREAS, the City has determined that certain buildings and other properties of historic and cultural significance located at Station A (the "Historic Facilities") are of historic significance, and, in connection with the permitting, construction and operation of the Malburg Generating Station Project, the City desires to provide for the preservation of the Historic Facilities and to arrange for educational and cultural uses of the Historic Facilities; and WHEREAS, the City has determined that it would be in the A 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 MA lbest interest of the City for the Vernon Historic Preservation Society, a California nonprofit public benefit corporation (the "Society"), to take an active role in the preservation of the Historic Facilities and to promote the educational and cultural uses of the Historic Facilities; and WHEREAS, the City proposes to enter into an Historic Building Preservation Agreement (the "Agreement") with the Society, pursuant to which the Society will take an active role in the preservation of the Historic Facilities and promote the educational and cultural uses of the Historic Facilities; and WHEREAS, all acts, conditions and things required by the Charter and all applicable ordinances and resolutions of the City and the laws of the State of California to exist, to have happened and to have been performed precedent to and in connection with the consummation of the transactions authorized hereby do exist, have happened and have been performed in regular and due time, form and manner as required by law, and the City is now duly authorized and empowered, pursuant to each and every such requirement to consummate such transactions for the purpose, in the manner and upon the terms herein provided; and WHEREAS, on December 3, 2002, the Finance Committee recommended that the City Council approve the recommendation of Bruce V. Malkenhorst, the Director of Finance, dated November 27, 2002, that the agreement to preserve the City's existing Historic Facilities be approved and executed. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF VERNON AS FOLLOWS: SECTION 1: The City Council of the City of Vernon hereby - 2 - 1 2 3 4 5 6 7 M 10 11 12 13 14 15 16 17 no 19 20 21 22 23 24 25 26 27 28 11specifically finds and determines that — A. the actions authorized hereby constitute and are with respect to the public affairs of the City and that the statements, findings and determinations set forth above and in the recitals of the �JAgreement approved herein are true and correct. B. in connection with the consummation of the transactions contemplated by this Resolution and by the Agreement, it would be impracticable for the City to follow the open market procedures set forth in Section 2.29 of the Code of the City. C. the consummation of the transactions contemplated by this Resolution and by the Agreement shall result in significant public benefits to the City in permitting, constructing and operating the Malburg Generating Station Project and in providing for the preservation of the Historic Facilities and providing for educational and cultural uses of the Historic Facilities as provided in the Agreement. SECTION 2: The City Council of the City of Vernon hereby approves the proposed Agreement with the Society, in substantially the same form attached hereto as Exhibit "A" and made a part hereof, and approves the performance by the City of its obligations thereunder. SECTION 3: The City Council of the City of Vernon hereby severally authorizes the Mayor and the City Administrator (each a "Designated Officer") to execute said Agreement for, and on behalf of, the City of Vernon with such additions, deletions and other changes therein as the Designated Officer executing the Agreement may approve, such approval to be conclusively evidenced by the execution and delivery thereof. - 3 - In 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SECTION 4: The City Council of the City of Vernon hereby authorizes the City Clerk to attest the signature of the Designated Officer executing the Agreement on behalf of the City, and to affix and attest the seal of the City thereto, as may be required or appropriate in connection with the execution and delivery of the +Agreement. SECTION 5: Each appropriate officer, employee or agent of the City is hereby severally authorized and directed to do.any and all things and to execute and deliver any and all certificates, documents and instruments which he or she may deem necessary or desirable in order to consummate the transactions authorized hereby and to carry out, give effect to and comply with the terms and intent of this Resolution and the Agreement. All such actions heretofore taken by any officer, employee or agent of the City is hereby ratified, confirmed and approved. SECTION 6: The City Council of the City of Vernon hereby directs the City Clerk, or his designee, to send one fully executed Agreement to the Vernon Historic Preservation Society. SECTION 7: The City Clerk of the City of Vernon shall certify to the passage of this resolution, and thereupon and thereafter the same shall be in full force and effect. APPROVED AND ADOPTED this 4th day of December, 2002. ATTEST: BRUCE V. MALKENHORST, City Clerk EONIS C. MALB G, May r - 4 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STATE OF CALIFORNIA ) ) ss COUNTY OF LOS ANGELES ) I, BRUCE V. MALKENHORST, City Clerk of the City of Vernon, do hereby certify that the foregoing Resolution, being Resolution No. 8111, was duly adopted by the City Council of the City of Vernon at a regular meeting of the City Council duly held on Wednesday, December 4, 2002, and thereafter was duly signed by the Mayor of the City of Vernon. BRUCE V. MALKENHORST, City Clerk - 5 - EXHIBIT HISTORIC BUILDING PRESERVATION AGREEMENT by and between CITY OF VERNON ME VERNON HISTORIC PRESERVATION SOCIETY Dated as of November 1, 2002 DOCSLAI.428807.4 HISTORIC BUILDING PRESERVATION AGREEMENT This Historic Building Preservation Agreement (this "Agreement"), dated as of November 1, 2002, by and between the City of Vernon, California, a municipal corporation and chartered city duly organized and existing under and by virtue of the Constitution and laws of the State of California (the "City"), and the Vernon Historic Preservation Society, a nonprofit public benefit corporation duly incorporated and in good standing under and by virtue of the laws of the State of California (the "Society") (each of the City and the Society being herein referred to individually as a "Party" or collectively as the "Parties"), WITNESSETH: WHEREAS, the City has established the Electric System (capitalized terms used in this Agreement and not otherwise defined shall have the meanings given such terms in Section 1.01 of this Agreement) to serve the electric requirements of the inhabitants of the City; and WHEREAS, pursuant to the Public Utilities Code of the State, the City is authorized to acquire, own, control sell or exchange lands, easements, licenses and rights of every nature when necessary to supply the inhabitants of the City with electric service; and WHEREAS, in order to assure adequate electricity to satisfy the load requirements of the inhabitants of the City, the City has determined to construct and operate the Malburg Generating Station Project; and WHEREAS, the Malburg Generating Station Project is to be constructed on the site of Station A; and WHEREAS, the City has determined that the Historic Facilities located at Station A are of historic significance and the City desires to provide for the preservation of the Historic Facilities and to arrange for educational and cultural uses of the Historic Facilities; and WHEREAS, the City and the Society have agreed that the Society take an active role in the preservation of the Historic Facilities and promote the educational and cultural uses of the Historic Facilities as provided in this Agreement; and WHEREAS, all acts, conditions and things required by the laws of the State to exist, to have happened and to have been performed precedent to and in connection with the Parties' entering into this Agreement and the consummation on the part of each of the Parties of the transactions set forth in this Agreement do exist, have happened and have been performed in regular and due time, form and manner as required by law, and each of the Parties is now duly authorized and empowered, pursuant to each and every requirement of law, to enter into this Agreement and to consummate such transactions for the purpose, in the manner and upon the terms herein provided; DOCSLAI.428807.4 NOW, THEREFORE, IN CONSIDERATION OF THE PREMISES AND OF THE MUTUAL AGREEMENTS AND COVENANTS CONTAINED HEREIN AND FOR OTHER VALUABLE CONSIDERATION, THE PARTIES HERETO DO HEREBY AGREE AS FOLLOWS: ARTICLE I DEFINITIONS Section 1.01 Definitions. Unless the context otherwise requires, the terms defined in this Section shall for all purposes of this Agreement and of any amendment hereof or supplement hereto have the meanings given such terms in this Section. "Agreement" means this Agreement, as originally executed by the City and the Society and as the provisions hereof may be amended and supplemented in accordance with the terms hereof. "City" means the City of Vernon, a municipal corporation, duly organized and existing under and by virtue of the Constitution and laws of the State. "City Transfers" mean any payments from Revenues to the City for payments in -lieu of taxes, transfers to the City's General Fund or similar payments but shall not include any item constituting an Operation and Maintenance Expense. "Electric System" means the electric utility system of the City, comprising all electric generation, transmission and distribution facilities and all general plant facilities related thereto now owned by the City and all other properties, structures or works for the generation, transmission or distribution of electricity hereafter acquired by the City, including all contractual rights for electricity or the transmission thereof, together with all additions, betterments, extensions or improvements to such facilities, properties, structures or works or any part thereof, or any additional contract rights for electricity or the transmission thereof, hereafter acquired. "Event of Default" means an event described as such in Section 6.01 herein. "Facility Operation and Maintenance Expenses" mean the costs paid or incurred by the City for operating and maintaining the Historic Facilities including, but not limited to, (a) all costs of electric energy and power generated by the Historic Facilities, including fuel supply and water supply, (b) all expenses of management and repair and other expenses necessary to maintain and preserve the Historic Facilities in good repair and working order, (c) all administrative costs of the City that are charged directly or apportioned to the operation or maintenance of the Historic Facilities, such as salaries and wages of employees, overhead, taxes (if any) and insurance premiums, (d) all other reasonable and necessary costs or charges required to be paid to comply with the terms of any resolution adopted by the City Council of the City or any agreement entered into by the City or the Society in connection with the Historic Facilities; and (e) any other cost or expense which, in accordance with Generally Accepted Accounting Principles, is to be treated as a cost of operating or maintaining the Historic Facilities; but DOCSLA 1:428807.4 2 excluding in all cases depreciation, replacement and obsolescence charges or reserves therefor, amortization of intangibles and City Transfers. "Fiscal Year" means the period beginning on July 1 of each year and ending on the next succeeding June 30, or any other annual accounting period hereafter selected and designated by the City Council of the City as the Fiscal Year of the City. "Generally Accepted Accounting Principles" mean the uniform accounting and reporting procedures set forth in publications of the American Institute of Certified Public Accountants or its successor, or by any other generally accepted authority on such procedures selected by the City, and includes, as applicable, the standards set forth by the Governmental Accounting Standards Board or its successor. "Historic Facilities" mean the buildings and other properties of historic and cultural significance, either as a part of the operating Electric System or as a historic site and an educational and cultural resource located at Station A in the City of Vernon, California. "Malburg Generating Station Project" means the proposed and approximately 134 megawatt combined cycle, natural-gas fired electric generating facility and related facilities and equipment to be located on approximately 3.4 acres of the City's existing Station A. "Net Revenues" mean, for any period of time in question, the Revenues during such period less the Operation and Maintenance Expenses during such period. "Operation and Maintenance Expenses" mean the costs paid or incurred by the City for the operation and maintenance of the Electric System. "Revenues" mean all gross income and revenue received or receivable by the City from the ownership or operation of the Electric System, including all rates and charges for the Electric Service and the other services and facilities of the Historic Facilities, all proceeds of insurance covering business interruption loss relating to the Historic Facilities and all other income and revenue howsoever derived by the City from the ownership or operation of the Historic Facilities or otherwise arising from the Historic Facilities, including all other amounts deposited in the City's Electric Revenue Fund and all income from the investment of any money in the City's Electric Revenue Fund, but excluding (i) proceeds of taxes and (ii) refundable deposits made to establish credit and advances or contributions in aid of construction and line extension fees. "Society" means the Vernon Public Historic Preservation Society, a non-profit, public benefit corporation duly organized and existing under and by virtue of the laws of the State. "State" means the State of California. `Station A" means the existing electric generating facility of the City of Vernon located at 2716 East 50th Street in Vernon, California. DOCSLA1:428807.4 ARTICLE II REPRESENTATIONS AND WARRANTIES Section 2.01 Mutual Representations. Each Party represents and warrants to the other Party that (i) it is duly formed and in good standing under the laws of the State of California, (ii) it has all necessary power, authority and legal right to enter into, deliver and perform its respective obligations under this Agreement, (iii) the execution, delivery and performance of this Agreement by such Party have been duly authorized by all necessary action, (iv) all consents and approvals necessary for the execution, delivery and performance of this Agreement by such Party have been obtained, and (v) this Agreement is the legal, valid and binding obligation of such Party, enforceable in accordance with its respective terms. Section 2.02 Additional City Representations. The City further represents and warrants that (i) all acts necessary to the valid execution, delivery and performance of this Agreement, including without limitation competitive bidding, public notice, election, referendum, prior appropriation or other required procedures has or will be taken and performed as required under the City's charter, ordinances, bylaws or other regulations and under California law, (ii) all persons making up the City Council of the City are duly elected or appointed incumbents in their positions and hold such positions in good standing in accordance with California law, and (iii) entry into and performance of this Agreement by the City are for a proper public purpose under California law. ARTICLE III COVENANTS OF THE CITY Section 3.01 Construction of Malburg Generating Station. The City shall not damage or destroy any part of the Historic Facilities in the construction of the Malburg Generating Station Project. . Section 3.02 Operation and Maintenance of the Historic Facilities. At all times when the Historic Facilities are a part of its Electric System, the City will operate, maintain and preserve the Historic Facilities in good repair and working order in accordance with prudent operating and maintenance practices and in an efficient and economical manner; provided, however, that nothing in this Agreement shall require the City to operate the Historic Facilities to generate electricity or to include the Historic Facilities as part of its Electric System for any period of time. Section 3.03 Preservation, Repair and Replacement of the Historic Facilities. While the Historic Facilities are maintained and operated by the City as part of its Electric System, the City will take the actions required by this Section. The City will develop and maintain the appropriate settings and environment to preserve the structures, landscaping, natural features, sites and areas of the Historic Facilities. The City will preserve distinctive features, finishes, and construction techniques or examples of craftsmanship that characterize the Historic Facilities. DOCSLAI :428807.4 4 The City will repair any deteriorated historic features of the Historic Facilities, and where the severity of deterioration requires replacement of a distinctive feature, the new feature shall match the old in design, color, texture, and other visual qualities and, where possible, materials. Any new additions, exterior alterations, or related new construction shall not destroy historic materials that characterize the Historic Facilities. In addition, the City will undertake any new additions and adjacent or related new construction in such a manner that, if removed in the future, the essential form and integrity of the Historic Facilities would be unimpaired. Section 3.04 Facility Operation and Maintenance Expenses: Budgets. The City will pay or cause to be paid all Facility Operation and Maintenance Expenses as they become due and payable. The City will adopt, not later than October 1 of each year, a budget for the Historic Facilities for such Fiscal Year, providing that all Facility Operation and Maintenance Expenses and all other amounts which the City determines are to be paid from the Revenues in connection with the Historic Facilities during such Fiscal Year have been included in such budget; provided, that any such budget may be amended at any time during any Fiscal Year provided such amended budget shall include provision for the payment of all Facility Operation and Maintenance Expenses and all other amounts which the City determines are to be paid from the Revenues in connection with the Historic Facilities during such Fiscal Year. Section 3.05 Against Encumbrances on Historic Facilities. The City will pay or cause to be paid when due all sums of money that may become due or purporting to be due for any labor, services, materials, supplies or equipment furnished, or alleged to have been furnished, to or for the City in, upon, about or relating to the Historic Facilities and will keep the Historic Facilities free of any and all liens against any portion of the Historic Facilities, including without limitation any liens securing indebtedness or other payment obligations. In the event any such lien attaches to or is filed against any portion of the Historic Facilities, the City will cause each such lien to be fully discharged and released at the time the performance of any obligation secured by any such lien matures or becomes due, except that if the City desires to contest any such lien it may do so if contesting such lien will not adversely affect the City's ability to satisfy the requirements of this Agreement. If any such lien shall be reduced to final judgment and such judgment or any process as may be issued for the enforcement thereof is not promptly stayed, or if so stayed and such stay thereafter expires, the City will forthwith pay or cause to be paid and discharged such judgment. Section 3.06 Sale or Other Disposition of Historic Facilities. The City will not sell, transfer or otherwise dispose of any of the works, plant, properties, facilities or other part or rights of the Historic Facilities or any real or personal property comprising a part of the Historic Facilities if such sale, transfer or disposition would adversely affect the City's ability to satisfy the requirements of this Agreement. Section 3.07 Insurance. The City will procure and maintain such insurance relating to the Historic Facilities which it shall deem advisable or necessary to protect its interests, which insurance shall afford protection in such amounts and against such risks as are usually covered in connection with public electric utility systems similar to the Historic Facilities; provided, that any such insurance may be maintained under a self-insurance program so long as such self- insurance is maintained in the amounts and manner as is, in the opinion of an accredited actuary, DOCSLA 1:428807.4 5 actuarially sound. At the Society's request, the City shall deliver to the Society copies of such actuary opinion and certificates or other evidence of insurance relating to the Historic Facilities. Section 3.08 Payment of Taxes and Compliance with Governmental Regulations. The City will pay and discharge all taxes, assessments and other governmental charges which may hereafter be lawfully imposed upon the Historic Facilities or any part thereof when the same shall become due. The City will duly observe and conform with all valid regulations and requirements of any governmental authority relative to the operation and maintenance of the Historic Facilities or any part thereof, but the City shall not be required to comply with any regulations or requirements so long as the validity or application thereof shall be contested in good faith and contesting such validity or application will not materially impair the operations of the Historic Facilities, will not result in the imposition of a lien on the Historic Facilities in violation of Section 3.05 of this Agreement or will not impair the City's ability to satisfy the requirements of this Agreement. Section 3.09 Eminent Domain and Insurance Proceeds. If all or any part of the Historic Facilities shall be taken by eminent domain proceedings, or if the City receives any insurance proceeds resulting from a casualty loss to the Historic Facilities, the net proceeds thereof, at the option of the City, shall be applied either to: (a) the prepayment of obligations payable from the Net Revenues; or (b) to the repair, restoration or substitution of other components for the condemned, damaged or destroyed components of the Historic Facilities. Nothing in this Section shall affect the City's obligations under Section 3.04 of this Agreement. Section 3.10 Expenses of Society. To the extent amounts applied to such costs and expenses pursuant to Section 4.05 hereof are insufficient to cover the costs and expenses incurred by the Society in performance of its obligations under this Agreement, the City agrees to pay such costs and expenses or to reimburse the Society for such costs and expenses. Section 3.11 Further Assurances. The City will adopt, deliver, execute and make any and all further assurances, instruments and resolutions as may be reasonably necessary or proper to carry out the intention or to facilitate the performance of this Agreement and for the better assuring and confirming unto the Society of the rights and benefits provided to it in this Agreement. U171 M CIMSM COVENANTS OF THE SOCIETY Section 4.01 Operation and Maintenance of the Historic Facilities. At all times when the Historic Facilities are not operated and maintained by the City as part of its Electric System, the Society will operate the Historic Facilities as a cultural and educational resource and will maintain and preserve the Historic Facilities in good repair and working order in accordance with prudent operating and maintenance practices for similar historic sites; provided however, that any extraordinary maintenance and repairs will be made at the discretion of the City. Section 4.02 Preservation, Repair and Replacement of the Historic Facilities. While the Historic Facilities are maintained and operated by the Society, the Society will take the actions DOCSLA i :428807.4 6 required by this Section. The Society will develop and maintain the appropriate settings and environment to preserve the structures, landscaping, natural features, sites and areas of the Historic Facilities. The Society will preserve distinctive features, finishes, and construction techniques or examples of craftsmanship that characterize the Historic Facilities. The Society will repair any deteriorated historic features of the Historic Facilities, and where the severity of deterioration requires replacement of a distinctive feature, the new feature shall match the old in design, color, texture, and other visual qualities and, where possible, materials. Any new additions, exterior alterations, or related new construction shall not destroy historic materials that characterize the Historic Facilities. In addition, the Society will undertake any new additions and adjacent or related new construction in such a manner that, if removed in the future, the essential form and integrity of the Historic Facilities would be unimpaired. Section 4.03 Promotion of Educational Uses of the Historic Facilities. The Society shall take such actions as the Society deems reasonable to promote the educational uses and applications of the Historic Facilities, including but not limited to the following: (a) Tours of the Historic Facilities. The Society will use its best efforts to arrange and operate docent and self -guided tours of the Historic Facilities. Such tours will provide the public access to the diesel engines, the station control room and other facilities located at the Historical Facilities. In addition, such tours shall inform and educate the public regarding the operation, history and cultural significance of the Historical Facilities, as well as promote public awareness with respect to historical building preservation issues generally. (b) Publications; Website. The Society will use its best efforts to promote the awareness, recognition and preservation of the Historic Facilities through publications and distribution of materials relating to the operation, history and cultural significance of the Historic Facilities. In addition, the Society may establish and make available a Website that provides information relating to the operation, history and cultural significance of the Historic Facilities. Such Website may also provide historic building preservation resources, as well as links to other historic preservation organizations and societies. (c) Community Involvement and Volunteers. The Society will use its best efforts to encourage community involvement in its efforts to promote the awareness, recognition and preservation of the Historic Facilities. The Society will accept, organize and train volunteers to assist with all aspects of the Society's maintenance and operation of the Historical Facilities, such as the operation of tours of the Historic Facilities pursuant to subsection (a) above. Section 4.04 Promotion of Cultural Uses of the Historic Facilities. The Society shall take such actions as the Society deems reasonable to promote the cultural uses and applications of the Historic Facilities, including but not limited to the following: (a) Special Events. The Historic Facilities will be made available for purposes of hosting various special events such as conferences, receptions, exhibitions and other assemblies. The Society will use its best efforts to organize, sponsor and promote the use of the Historical Facilities for purposes of hosting various special events. The use of the Historic Facilities for purposes of hosting various special events by any person(s) or entity(s) will be subject to the regulations and requirements of any governmental authority. DOCSLAI.428807.4 7 (b) Location for Films and Photography. The Historic Facilities. will be made available for artistic, literary and scientific purposes such as filming of motion pictures and television programs, photo -shoots and other similar uses. The Society will use its best efforts to promote the use of the Historic Facilities as a location for films and photography. The use of the Historic Facilities for such purposes by any person(s) or entity(s) will be subject to the regulations and requirements of any governmental authority. (c) Gift Shop and Merchandise. The Society will be authorized to operate a gift shop or similar facility for purposes of selling and distributing various merchandise such as pamphlets, books, postcards, and other souvenir items that promote awareness, recognition and preservation of the Historic Facilities. Section 4.05 Application of Revenues. All income, fees, proceeds and other revenues received by the Society in connection with its activities pursuant to this Agreement, if any, shall be applied toward the costs and expenses incurred by the Society in performance of its obligations under this Agreement. Section 4.06 Compliance with Governmental Regulations. The Society will duly. observe and conform with all valid regulations and requirements of any governmental authority relative to the operation and maintenance of the Historic Facilities or any part thereof, and in otherwise discharging its obligations under this Agreement. Section 4.07 Local, State, and National Historic Designation. The Society may apply to an appropriate government agency to have the Historic Facilities designated as an historical structure at the local, State, and/or national level(s) such as designation by the California State Office of Historic Preservation and the National Register of Historic Places of the United States Department of the Interior. Upon designation by the appropriate government agency, the Society will be responsible for maintaining the Historic Facilities in compliance with all requirements applicable to historical structures. Section 4.08 Cooperation with Other Historic Preservation Organizations and Societies. The Society shall cooperate with and assist other historic building preservation organizations and societies dedicated to the recognition, development, and promotion of public awareness of historic building preservation issues. Section 4.09 Further Assurances. The Society will adopt, deliver, execute and make any and all. further assurances, instruments and resolutions as may be reasonably necessary or proper to carry out the intention or to facilitate the performance of this Agreement and for the better assuring and confirming unto the City of the rights and benefits provided to it in this Agreement. Section 4.10 Conditions to the Obligations of the Society. The obligations of the Society under this Article will be subject, at the option of the Society, to the performance by the City of its obligations to be performed under this Agreement. DOCSLA 1:428807.4 8 ARTICLE V EVENTS OF DEFAULT AND REMEDIES Section 5.01 Events of Default. If one or more of the following Events of Default shall happen and be continuing, that is to say: (a) if default shall be made by a Party in the performance of any of the agreements or covenants contained herein required to be performed by it under this Agreement, and such default shall have continued for a period of thirty (30) days after such Party shall have been given notice in writing of such default by the other Party; or (b) if a Party shall file a petition or answer seeking arrangement or reorganization under the federal bankruptcy laws or any other applicable law of the United States of America or any state therein, or if a court of competent jurisdiction shall approve a petition filed with or without the consent of such Party seeking arrangement or reorganization under the federal bankruptcy laws or any other applicable law of the United States of -America or any state therein, or if under the provisions of any other law for the relief or aid of debtors any court of competent jurisdiction shall assume custody or control of such Party or of the whole or any substantial part of its property; Section 5.02 Remedies. A Parry shall also have the right: (a) to terminate this Agreement; (b) by mandamus or other action or proceeding or suit at law or in equity to enforce its rights against the other Party or any officer or employee thereof, and to compel the other Party or any such officer or employee to perform and carry out its or his or her duties under the law and the agreements and covenants required to be performed by it or him or her contained in this Agreement; (c) by suit in equity to enjoin any acts or things which are unlawful or violate the rights of a Party; or (d) by suit in equity upon the happening of an Event of Default to require a Party and its officers and employees to account as the trustee of an express trust. Section 5.03 Non -Waiver. Nothing in this Article or in any other provision of this Agreement shall affect or impair the obligation of the City, which is absolute and unconditional, to pay the Facility Operation and Maintenance Expenses and to pay or to reimburse the Society for the payment of other amounts payable by the City hereunder, or shall affect or impair the right of the Society, which is also absolute and unconditional, to institute suit to enforce such payment by virtue of the contract embodied in this Agreement. A waiver of any default or breach of duty,or contract by the Society shall not affect any subsequent default or breach of duty or contract or impair any rights or remedies on any such subsequent default or breach of duty or contract. No delay or omission by the Society to exercise any right or remedy accruing upon any default or breach of duty or contract shall impair any DOCSLA1:428807.4 9 such right or remedy or shall be construed to be a waiver of any such default or breach of duty or contract or an acquiescence therein, and every right or remedy conferred upon the Society by law or by this article may be enforced and exercised from time to time and as often as shall be deemed expedient by the Society. If any action, proceeding or suit to enforce any right or exercise any remedy is abandoned or determined adversely to the Society, the City and the Society shall be restored to their former positions, rights and remedies as if such action, proceeding or suit had not been brought or taken. Section 5.04 Remedies Not Exclusive. No remedy herein conferred upon or reserved to a Parry is intended to be exclusive of any other remedy, and each such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing in law or in equity or by statute or otherwise and may be exercised without exhausting and without regard to any other remedy conferred by law. Section 5.05 Waiver of Sovereign Immunity. To the extent permitted by law and subject to the provisions of this Agreement, the City hereby waives and agrees not to assert any immunity, on the grounds of sovereignty or otherwise, with respect to itself and its assets, the Historic Facilities, the Electric System or the Revenues, from suit, jurisdiction of any court otherwise having jurisdiction, relief by way of mandamus, specific performance, injunction or recovery of damages, or execution or enforcement of any judgment hereunder. ARTICLE VI MISCELLANEOUS Section 6.01 Liability of City Limited to Available Net Revenues. Notwithstanding anything contained herein, the City shall not be required to advance any moneys derived from any source other than the Net Revenues for the payment of the Operation and Maintenance Expenses, the Facility Operation and Maintenance Expenses, or the payment or the reimbursement to the Society for the payment of its costs and expenses of the Society in performing its obligations under this Agreement or for the performance of any agreements or covenants required to be performed by it contained herein. The City may, however, advance moneys for any such purpose so long as such moneys are derived from a source legally available for such purpose and may be legally used by the City for such purpose. The obligation of the City to pay all payments required under this Agreement is a special obligation of the City payable solely from the available Net Revenues as provided herein. The general fund of the City is not liable, and neither the faith and credit nor the taxing power of the City is pledged, for the payment of all payments required under this Agreement or the performance or satisfaction of any other obligations of the City under this Agreement. Section 6.02 Amendments. This Agreement shall not be supplemented, amended, or modified in any manner except by an instrument in writing signed by the City and the Society. DOCSLA1:428807.4 10 Section 6.03 Benefits of Contracts Limited to Parties. Nothing contained in this Agreement, expressed or implied, is intended to give to any person other than the City and the Society, and their respective successors and any assignee pursuant to this Agreement, any right, remedy or claim under or pursuant thereto, and any agreement or covenant required herein to be performed by or on behalf of the City or the Society shall be for the sole and exclusive benefit of the other Party and such permitted successors and assignees. Section 6.04 Successor Is Deemed Included in all References to Predecessor. Whenever either the Society or the City is named or referred to herein, such reference shall be deemed to include the successor to the powers, duties and functions that are presently vested in the Society or the City, and all agreements and covenants required hereby to be performed by or on behalf of the Society or the City shall bind and inure to the benefit of the respective successors thereof whether so expressed or not. Section 6.05 Waiver of Personal Liability. No officer or employee of the City shall be individually or personally liable for the payment of all payments required under this Agreement or the performance or satisfaction of any other obligation of the City under this Agreement, but nothing contained herein shall relieve any officer or employee of the City from the performance of any official duty provided by any applicable provisions of law or by the terms of this Agreement. Section 6.06 Assignment. Neither Party may assign, transfer or encumber any of its rights or obligations under this Agreement without the prior written consent of the other Party and any such purported assignment, transfer or encumbrance without such consent shall be null and void. In the case of any transfer or assignment of a Party's rights or obligations hereunder consented to by the other Party, references herein to the assigning or transferring Party shall be deemed to be references to the assignee or transferee of such rights or obligations. Section 6.07 Article and Section Headings, Gender and References. The headings or titles of the several articles and sections of this Agreement, and any table of contents appended hereto, shall be solely for convenience of reference and shall not affect the meaning, construction or effect of this Agreement, and words of any gender shall be deemed and construed to include all genders. Unless otherwise specifically provided, all references herein to "Articles," "Sections" and other subdivisions or clauses are to the corresponding articles, sections, subdivisions or clauses of this Agreement; and the words "hereby," "herein," "hereof," "hereto," "herewith" and other words of similar import refer to this Agreement as a whole and not to any particular article, section, exhibit, subdivision or clause of this Agreement. Section 6.08 Net Contract. This Agreement shall be deemed and construed to be a net contract, and the City shall pay absolutely net during the term hereof all payments required under this Agreement, free of any deductions and without abatement, diminution or set-off whatsoever. Section 6.09 Term. This Agreement shall become effective upon its execution and shall remain in full force and effect until November 1, 2027. Section 6.10 Entire Agreement. The provisions of this Agreement shall constitute the entire agreement of the Parties hereto with respect to the subject matter included in this DOCSLAI:428807.4 11 Agreement and shall supercede any other agreement, understanding or arrangement, whether written or oral, between the Parties with respect to the subject matter of this Agreement,. Section 6.11 California Law. This Agreement shall be construed and governed in accordance with the laws of the State with respect to contracts made and to be performed in the State. [Remainder of Page Intentionally left Blank.] nocst. I:aasso7.a 12 IN WITNESS WHEREOF, the Parties hereto have executed and attested this Agreement by their respective officers thereunto duly authorized,, as of the day and year first written above. CITY OF VERNON By: Name: Leonis Malburg Title: Mayor APPROVED: City Attorney VERNON HISTORIC PRESERVATION SOCIETY By: _ Name: Title: DOCSLAI:428807.4 13 SUPPORTING DOCUMENTS HISTORIC BUILDING PRESERVATION AGREEMENT by and between CITY OF VERNON and VERNON HISTORIC PRESERVATION SOCIETY Dated as of January 1, 2003 DOCSLA1:428807.5 HISTORIC BUILDING PRESERVATION AGREEMENT This Historic Building Preservation Agreement (this "Agreement"), dated as of January 1, 2003, by and between the City of Vernon, California, a municipal corporation and chartered city duly organized and existing under and by virtue of the Constitution and laws of the State of California (the "City"), and the Vernon Historic Preservation Society, a nonprofit public benefit corporation duly incorporated and in good standing under and by virtue of the laws of the State of California (the "Society") (each of the City and the Society being herein referred to individually as a "Party" or collectively as the "Parties"), WITNESSETH: WHEREAS, the City has established the Electric System (capitalized terms used in this Agreement and not otherwise defined shall have the meanings given such terms in Section 1.01 of this Agreement) to serve the electric requirements of the inhabitants of the City; and WHEREAS, the City is authorized to acquire, own, control sell or exchange lands, easements, licenses and rights of every nature when necessary to supply the inhabitants of the City with electric service; and WHEREAS, in order to assure adequate electricity to satisfy the load requirements of the inhabitants of the City, the City has determined to construct and operate the Malburg Generating Station Project; and J. WHEREAS, the Malburg Generating Station Project is to be constructed on the site of Station A; and WHEREAS, the City has determined that the Historic Facilities located at Station A are of historic significance and the City desires to provide for the preservation of the Historic Facilities and to arrange for educational and cultural uses of the Historic Facilities; and - WHEREAS, the City and the Society have agreed that the Society take an active role in the preservation of the Historic Facilities and promote the educational and cultural uses of the Historic Facilities as provided in this Agreement; and WHEREAS, all acts, conditions and things required by the laws of the State to exist, to have happened and to have been performed precedent to and in connection with the Parties' entering into this Agreement and the consummation on the part of each of the Parties of the transactions set forth in this Agreement do exist, have happened and have been performed in regular and due time, form and manner as required by law, and each of the Parties is now duly authorized and empowered, pursuant to each and every requirement of law, to enter into this Agreement and to consummate such transactions for the purpose, in the manner and upon the terms herein provided; DOCSLA1:428807.5 NOW, THEREFORE, IN CONSIDERATION OF THE PREMISES AND OF THE MUTUAL AGREEMENTS AND COVENANTS CONTAINED HEREIN AND FOR OTHER VALUABLE CONSIDERATION, THE PARTIES HERETO DO HEREBY AGREE AS FOLLOWS: ARTICLE I DEFINITIONS Section 1.01 Definitions. Unless the context otherwise requires, the terms defined in this Section shall for all purposes of this Agreement and of any amendment hereof or supplement hereto have the meanings given such terms in this Section. "Agreement" means this Agreement, as originally executed by the City and the Society and as the provisions hereof may be amended and supplemented in accordance with the terms hereof. "City" means the City of Vernon, a municipal corporation, duly organized and existing under and by virtue of the Constitution and laws of the State. "City Transfers" mean any payments from Revenues to the City for payments in -lieu of taxes, transfers to the City's General Fund or similar payments but shall not include any item constituting an Operation and Maintenance Expense. "Electric System" means the electric utility system of the City, comprising all electric generation, transmission and distribution facilities and all general plant facilities related thereto now owned by the City and all other properties, structures or works for the generation, transmission or distribution of electricity hereafter acquired by the City, including all contractual rights for electricity or the transmission thereof, together with all additions, betterments, extensions or improvements to such facilities, properties, structures or works or any part thereof, or any additional contract rights for electricity or the transmission thereof, hereafter acquired. "Event of Default" means an event described as such in Section 6.01 herein. "Facility Operation and Maintenance Expenses" mean the costs paid or incurred by the City for operating and maintaining the Historic Facilities including, but not limited to, (a) all costs of electric energy and power generated by the Historic Facilities, including fuel supply and water supply, (b) all expenses of management and repair and other expenses necessary to maintain and preserve the Historic Facilities in good repair and working order, (c) all administrative costs of the City that are charged directly or apportioned to the operation or maintenance of the Historic Facilities, such as salaries and wages of employees, overhead, taxes (if any) and insurance premiums, (d) all other reasonable and necessary costs or charges required to be paid to comply with the terms of any resolution adopted by the City Council of the City or any agreement entered into by the City or the Society in connection with the Historic Facilities; and (e) any other cost or expense which, in accordance with Generally Accepted Accounting Principles, is to be treated as a cost of operating or maintaining the Historic Facilities; but DOCSLA1:428807.5 2 excluding in all cases depreciation, replacement and obsolescence charges or reserves therefor, amortization of intangibles and City Transfers. "Fiscal Year" means the period beginning on July 1 of each year and ending on the next succeeding June 30, or any other annual accounting period hereafter selected and designated by the City Council of the City as the Fiscal Year of the City. "Generally Accepted Accounting Principles" mean the uniform accounting and reporting procedures set forth in publications of the American Institute of Certified Public Accountants or its successor, or by any other generally accepted authority on such procedures selected by the City, and includes, as applicable, the standards set forth by the Governmental Accounting Standards Board or its successor. "Historic Facilities" mean the buildings and other properties of historic and cultural significance, either as a part of the operating Electric System or as a historic site and an educational and cultural resource located at Station A in the City of Vernon, California. "Malburg Generating Station Project" means the proposed and approximately 134 megawatt combined cycle, natural-gas fired electric generating facility and related facilities and equipment to be located on approximately 3.4 acres of the City's existing Station A. "Net Revenues" mean, for any period of time in question, the Revenues during such period less the Operation and Maintenance Expenses during such period. "Operation and Maintenance Expenses" mean the costs paid or incurred by the City for the operation and maintenance of the Electric System. "Revenues" mean all gross income and revenue received or receivable by the City from the ownership or operation of the Electric System, including all rates and charges for the Electric Service and the other services and facilities of the Historic Facilities, all proceeds of insurance covering business interruption loss relating to the Historic Facilities and all other income and revenue howsoever derived by the City from the ownership or operation of the Historic Facilities or otherwise arising from the Historic Facilities, including all other amounts deposited in the City's Electric Revenue Fund and all income from the investment of any money in the City's Electric Revenue Fund, but excluding (i) proceeds of taxes and (ii) refundable deposits made to establish credit and advances or contributions in aid of construction and line extension fees. "Society" means the Vernon Public Historic Preservation Society, a non-profit, public benefit corporation duly organized and existing under and by virtue of the laws of the State. "State" means the State of California. `Station A" means the existing electric generating facility of the City of Vernon located at 2716 East 50th Street in Vernon, California. DOCSLA1:428807.5 3 ARTICLE II REPRESENTATIONS AND WARRANTIES Section 2.01 Mutual Representations. Each Party represents and warrants to the other Parry that (i) it is duly formed and in good standing under the laws of the State of California, (ii) it has all necessary power, authority and legal right to enter into, deliver and perform its respective obligations under this Agreement, (iii) the execution, delivery and performance of this Agreement by such Party have been duly authorized by all necessary action, (iv) all consents and approvals necessary for the execution, delivery and performance of this Agreement by such Party have been obtained, and (v) this Agreement is the legal, valid and binding obligation of such Parry, enforceable in accordance with its respective terms. Section 2.02 Additional Cit�Representations. The City further represents and warrants that (i) all acts necessary to the valid execution, delivery and performance of this Agreement, including without limitation competitive bidding, public notice, election, referendum, prior appropriation or other required procedures has or will be taken and performed as required under the City's charter, ordinances, bylaws or other regulations and under California law, (ii) all persons making up the City Council of the City are duly elected or appointed incumbents in their positions and hold such positions in good standing in accordance with California law, and (iii) entry into and performance of this Agreement by the City are for a proper public purpose under California law. ARTICLE III COVENANTS OF THE CITY Section 3.01 Construction of Malburg_ Generating Station. The City shall not damage or destroy any part of the Historic Facilities in the construction of the Malburg Generating Station Project. Section 3.02 Operation and Maintenance of the Historic Facilities. At all times when the Historic Facilities are a part of its. Electric System, the City will operate, maintain and preserve the Historic Facilities in good repair and working order in accordance with prudent operating and maintenance practices and in an efficient and economical manner; provided, however, that nothing in this Agreement shall require the City to operate the Historic Facilities to generate electricity or to include the Historic Facilities as part of its Electric System for any period of time. Section 3.03 Preservation Repair and Replacement of the Historic Facilities. While the Historic Facilities are maintained and operated by the City as part of its Electric System, the City will take the actions required by this Section. The City will develop and maintain the appropriate settings and environment to preserve the structures, landscaping, natural features, sites and areas of the Historic Facilities. The City will preserve distinctive features, finishes, and construction techniques or examples of craftsmanship that characterize the Historic Facilities. DOCSLA1:428807.5 4 The City will repair any deteriorated historic features of the Historic Facilities, and where the severity of deterioration requires replacement of a distinctive feature, the new feature shall match the old in design, color, texture, and other visual qualities and, where possible, materials. Any new additions, exterior alterations, or related new construction shall not destroy historic materials that characterize the Historic Facilities. In addition, the City will undertake any new additions and adjacent or related new construction in such a manner that, if removed in the future, the essential form and integrity of the Historic Facilities would be unimpaired. Section 3.04 Facility Operation and Maintenance Expenses; Budgets. The City will pay or cause to be paid all Facility Operation and Maintenance Expenses as they become due and payable. The City will adopt, not later than October 1 of each year, a budget for the Historic Facilities for such Fiscal Year, providing that all Facility Operation and Maintenance Expenses and all other amounts which the City determines are to be paid from the Revenues in connection with the Historic Facilities during such Fiscal Year have been included in such budget; provided, that any such budget may be amended at any time during any Fiscal Year provided such amended budget shall include provision for the payment of all Facility Operation and Maintenance Expenses and all other amounts which the City determines are to be paid from the Revenues in connection with the Historic Facilities during such Fiscal Year. Section 3.05 Against Encumbrances on Historic Facilities. The City will pay or cause to be paid when due all sums of money that may become due or purporting to be due for any labor, services, materials, supplies or equipment furnished, or alleged to have been furnished, to Or for the City in, upon, about or relating to the Historic Facilities and will keep the Historic Facilities free of any and all liens against any portion of the Historic Facilities, including without limitation any liens securing indebtedness or other payment obligations. In the event any such lien attaches to or is filed against any portion of the Historic Facilities, the City will cause each such lien to be fully discharged and released at the time the performance of any obligation secured by any such lien matures or becomes due, except that if the City desires to contest any such lien it may do so if contesting such lien will not adversely affect the City's ability to satisfy the requirements of this Agreement. If any such lien shall be reduced to final judgment and such judgment or any process as may be issued for the enforcement thereof is not promptly stayed, or if so stayed and such stay thereafter expires, the City will forthwith pay or cause to be paid and discharged such judgment. Section 3.06 Sale or Other Disposition of Historic Facilities. The City will not sell, transfer or otherwise dispose of any of the works, plant, properties, facilities or other part or rights of the Historic Facilities or any real or personal property comprising a part of the Historic Facilities if such sale, transfer or disposition would adversely affect the City's ability to satisfy the requirements of this Agreement. Section 3.07 Insurance. The City will procure and maintain such insurance relating to the Historic Facilities which it shall deem advisable or necessary to protect its interests, which insurance shall afford protection in such amounts and against such risks as are usually covered in connection with public electric utility systems similar to the Historic Facilities; provided, that any such insurance may be maintained under a self-insurance program so long as such self- insurance is maintained in the amounts and manner as is, in the opinion of an accredited actuary, DOCSLAI :428807.5 5 actuarially sound. At the Society's request, the City shall deliver to the Society copies of such actuary opinion and certificates or other evidence of insurance relating to the Historic Facilities. Section 3.08 Payment of Taxes and Compliance with Governmental Regulations. The City will pay and discharge all taxes, assessments and other governmental charges which may hereafter be lawfully imposed upon the Historic Facilities or any part thereof when the same shall become due. The City will duly observe and conform with all valid regulations and requirements of any governmental authority relative to the operation and maintenance of the Historic Facilities or any part thereof, but the City shall not be required to comply with any regulations or requirements so long as the validity or application thereof shall be contested in good faith and contesting such validity or application will not materially impair the operations of the Historic Facilities, will not result in the imposition of a lien on the Historic Facilities in violation of Section 3.05 of this Agreement or will not impair the City's ability to satisfy the requirements of this Agreement. Section 3.09 Eminent Domain and Insurance Proceeds. If all or any part of the Historic Facilities shall be taken by eminent domain proceedings, or if the City receives any insurance proceeds resulting from a casualty loss to the Historic Facilities, the net proceeds thereof, at the option of the City, shall be applied either to: (a) the prepayment of obligations payable from the Net Revenues; or (b) to the repair, restoration or substitution of other components for the condemned, damaged or destroyed components of the Historic Facilities. Nothing in this Section shall affect the City's obligations under Section 3.04 of this Agreement. Section 3.10 Expenses of Society. To the extent amounts applied to such costs and expenses pursuant to Section 4.05 hereof are insufficient to cover the costs and expenses incurred by the Society in performance of its obligations under this Agreement, the City agrees to pay such costs and expenses or to reimburse the Society for such costs and expenses. Section 3.11 Further Assurances. The City will adopt, deliver, execute and make any and all further assurances, instruments and resolutions as may be reasonably necessary or proper to carry out the intention or to facilitate the performance of this Agreement and for the better assuring and confirming unto the Society of the rights and benefits provided to it in this Agreement. ARTICLE IV COVENANTS OF THE SOCIETY Section 4.01 Operation and Maintenance of the Historic Facilities. At all times when the Historic Facilities are not operated and maintained by the City as part of its Electric System, the Society will operate the Historic Facilities as a cultural and educational resource and will maintain and preserve the Historic Facilities in good repair and working order in accordance with prudent operating and maintenance practices for similar historic sites; provided however, that any extraordinary maintenance and repairs will be made at the discretion of the City. Section 4.02 Preservation, Repair and Replacement of the Historic Facilities. While the Historic Facilities are maintained and operated by the Society, the Society will take the actions DOCSLA1:428807.5 required by this Section. The Society will develop and maintain the appropriate settings and environment to preserve the structures, landscaping, natural features, sites and areas of the Historic Facilities. The Society will preserve distinctive features, finishes, and construction techniques or examples of craftsmanship that characterize the Historic Facilities. The Society will repair any deteriorated historic features of the Historic Facilities, and where the severity of deterioration requires replacement of a distinctive feature, the new feature shall match the old in design, color, texture, and other visual qualities and, where possible, materials. Any new additions, exterior alterations, or related new construction shall not destroy historic materials that characterize the Historic Facilities. In addition, the Society will undertake any new additions and adjacent or related new construction in such a manner that, if removed in the future, the essential form and integrity of the Historic Facilities would be unimpaired. Section 4.03 Promotion of Educational Uses of the Historic Facilities. The Society shall take such actions as the Society deems reasonable to promote the educational uses and applications of the Historic Facilities, including but not limited to the following: (a) Tours of the Historic Facilities. The Society will use its best efforts to arrange and operate docent and self -guided tours of the Historic Facilities. Such tours will provide the public access to the diesel engines, the station control room and other facilities located at the Historical Facilities. In addition, such tours shall inform and educate the public regarding the operation, history and cultural significance of the Historical Facilities, as well as promote public awareness with respect to historical building preservation issues generally. (b) Publications; Website. The Society will use its best efforts to promote the awareness, recognition and preservation of the Historic Facilities through publications and distribution of materials relating to the operation, history and cultural significance of the Historic Facilities. In addition, the Society may establish and make available a Website that provides information relating to the operation, history and cultural significance of the Historic Facilities. Such Website may also provide historic building preservation resources, as well as links to other historic preservation organizations and societies. (c) Community Involvement and Volunteers. The Society will use its best efforts to encourage community involvement in its efforts to promote the awareness, recognition and preservation of the Historic Facilities. The Society will accept, organize and train volunteers to assist with all aspects of the Society's maintenance and operation of the Historical Facilities, such as the operation of tours of the Historic Facilities pursuant to subsection (a) above. Section 4.04 Promotion of Cultural Uses of the Historic Facilities. The Society shall take such actions as the Society deems reasonable to promote the cultural uses and applications of the Historic Facilities, including but not limited to the following: (a) Special Events. The Historic Facilities will be made available for purposes of hosting various special events such as conferences, receptions, exhibitions and other assemblies. The Society will use its best efforts to organize, sponsor and promote the use of the Historical Facilities for purposes of hosting various special events. The use of the Historic Facilities for purposes of hosting various special events by any person(s) or entity(s) will be subject to the regulations and requirements of any governmental authority. DOCSLA1:428807.5 7 (b) Location for Films and Photography. The Historic Facilities will be made available for artistic, literary and scientific purposes such as filming of motion pictures and television programs, photo -shoots and other similar uses. The Society will use its best efforts to promote the use of the Historic Facilities as a location for films and photography. The use of the Historic Facilities for such purposes by any person(s) or entity(s) will be subject to the regulations and requirements of any governmental authority. (c) Gift Shop and Merchandise. The Society will be authorized to operate a gift shop or similar facility for purposes of selling and distributing various merchandise such as pamphlets, books, postcards, and other souvenir items that promote awareness, recognition and preservation of the Historic Facilities. Section 4.05 Application of Revenues. All income, fees, proceeds and other revenues received by the Society in connection with its activities pursuant to this Agreement, if any, shall be applied toward the costs and expenses incurred by the Society in performance of its obligations under this Agreement. Section 4.06 Compliance with Governmental Regulations. The Society will duly observe and conform with all valid regulations and requirements of any governmental authority relative to the operation and maintenance of the Historic Facilities or any part thereof, and in otherwise discharging its obligations under this Agreement. Section 4.07 Local, State, and National Historic Designation. The Society may apply to an appropriate government agency to have the Historic Facilities designated as an historical structure at the local, State, and/or national level(s) such as designation by the California State Office of Historic Preservation and the National Register of Historic Places of the United States Department of the Interior. Upon designation by the appropriate government agency, the Society will be responsible for maintaining the Historic Facilities in compliance with all requirements applicable to historical structures. Section 4.08 Cooperation with Other Historic Preservation Organizations and Societies. The Society shall cooperate with and assist other historic building preservation organizations and societies dedicated to the recognition, development, and promotion of public awareness of historic building preservation issues. Section 4.09 Further Assurances. The Society will adopt, deliver, execute and make any and all further assurances, instruments and resolutions as may be reasonably necessary or proper to carry out the intention or to facilitate the performance of this Agreement and for the better assuring and confirming unto the City of the rights and benefits provided to it in this Agreement. Section 4.10 Conditions to the Obligations of the Society. The obligations of the Society under this Article will be subject, at the option of the Society, to the performance by the City of its obligations to be performed under this Agreement. DOCSLAI :42880'7.5 8 ARTICLE V EVENTS OF DEFAULT AND REMEDIES Section 5.01 Events of Default. If one or more of the following Events of Default shall happen and be continuing, that is to say: (a) if default shall be made by a Party in the performance of any of the agreements or covenants contained herein required to be performed by it under this Agreement, and such default shall have continued for a period of thirty (30) days after such Party shall have been given notice in writing of such default by the other Party; or (b) if a Party shall file a petition or answer seeking arrangement or reorganization under the federal bankruptcy laws or any other applicable law of the United States of America or any state therein, or if a court of competent jurisdiction shall approve a petition filed with or without the consent of such Party seeking arrangement or reorganization under the federal bankruptcy laws or any other applicable law of the United States of America or any state therein, or if under the provisions of any other law for the relief or aid of debtors any court of competent jurisdiction shall assume custody or control of such Party or of the whole or any substantial part of its property; Section 5.02 Remedies. A Party shall also have the right: (a) to terminate this Agreement; (b) by mandamus or other action or proceeding or suit at law or in equity to enforce its rights against the other Party or any officer or employee thereof, and to compel the other Party or any such officer or employee to perform and carry out its or his or her duties under the law and the agreements and covenants required to be performed by it or him or her contained in this Agreement; (c) by suit in equity to enjoin any acts or things which are unlawful or violate the rights of a Party; or (d) by suit in equity upon the happening of an Event of Default to require a Party and its officers and employees to account as the trustee of an express trust. Section 5.03 Non -Waiver. Nothing in this Article or in any other provision of this Agreement shall affect or impair the obligation of the City, which is absolute and unconditional, to pay the Facility Operation and Maintenance Expenses and to pay or to reimburse the Society for the payment of other amounts payable by the City hereunder, or shall affect or impair the right of the Society, which is also absolute and unconditional, to institute suit to enforce such payment by virtue of the contract embodied in this Agreement. A waiver of any default or breach of duty or contract by the Society shall not affect any subsequent default or breach of duty or contract or impair any rights or remedies on any such subsequent default or breach of duty or contract. No delay or omission by the Society to exercise any right or remedy accruing upon any default or breach of duty or contract shall impair any DOCSLA1:428807.5 9 such right or remedy or shall be construed to be a waiver of any such default or breach of duty or contract or an acquiescence therein, and every right or remedy conferred upon the Society by law or by this article may be enforced and exercised from time to time and as often as shall be deemed expedient by the Society. If any action, proceeding or suit to enforce any right or exercise any remedy is abandoned or determined adversely to the Society, the City and the Society shall be restored to their former positions, rights and remedies as if such action, proceeding or suit had not been brought or taken. Section 5.04 Remedies Not Exclusive. No remedy herein conferred upon or reserved to a Parry is intended to be exclusive of any other remedy, and each such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing in law or in equity or by statute or otherwise and may be exercised without exhausting and without regard to any other remedy conferred by law. ARTICLE VI MISCELLANEOUS Section 6.01 Liability of City Limited to Available Net Revenues. Notwithstanding anything contained herein, the City shall not be required to advance any moneys derived from any source other than the Net Revenues for the payment of the Operation and Maintenance Expenses, the Facility Operation and Maintenance Expenses, or the payment or the reimbursement to the Society for the payment of its costs and expenses of the Society in performing its obligations under this Agreement or for the performance of any agreements or covenants required to be performed by it contained herein. The City may, however, advance moneys for any such purpose so long as such moneys are derived from a source legally available for such purpose and may be legally used by the City for such purpose. The obligation of the City to pay all payments required under this Agreement is a special obligation of the City payable solely from the available Net Revenues as provided herein. The general fund of the City is not liable, and neither the faith and credit nor the taxing power of the City is pledged, for the payment of all payments required under this Agreement or the performance or satisfaction of any other obligations of the City under this Agreement. Section 6.02 Amendments. This Agreement shall not be supplemented, amended, or modified in any manner except by an instrument in writing signed by the City and the Society. Section 6.03 Benefits of Contracts Limited to Parties. Nothing contained in this Agreement, expressed or implied, is intended to give to any person other than the City and the Society, and their respective successors and any assignee pursuant to this Agreement, any right, remedy or claim under or pursuant thereto, and any agreement or covenant required herein to be performed by or on behalf of the City or the Society shall be for the sole and exclusive benefit of the other Party and such permitted successors and assignees. Section 6.04 Successor Is Deemed Included in all References to Predecessor. Whenever either the Society or the City is named or referred to herein, such reference shall be deemed to include the successor to the powers, duties and functions that are presently vested in DOCSLA1:428807.5 10 the Society or the City, and all agreements and covenants required hereby to be performed by or on behalf of the Society or the City shall bind and inure to the benefit of the respective successors thereof whether so expressed or not. Section 6.05 Waiver of Personal Liability. No officer or employee of the City shall be individually or personally liable for the payment of all payments required under this Agreement or the performance or satisfaction of any other obligation of the City under this Agreement, but nothing contained herein shall relieve any officer or employee of the City from the performance of any official duty provided by any applicable provisions of law or by the terms of this Agreement. Section 6.06 Assignment. Neither Parry may assign, transfer or encumber any of its rights or obligations under this Agreement without the prior written consent of the other Parry and any such purported assignment, transfer or encumbrance without such consent shall be null and void. In the case of any transfer or assignment of a Party's rights or obligations hereunder consented to by the other Party, references herein to the assigning or transferring Party shall be deemed to be references to the assignee or transferee of such rights or obligations. Section 6.07 Article and Section Headings Gender and References. The headings or titles of the several articles and sections of this Agreement, and any table of contents appended hereto, shall be solely for convenience of reference and shall not affect the meaning, construction or effect of this Agreement, and words of any gender shall be deemed and construed to include all genders. Unless otherwise specifically provided, all references herein to "Articles," "'Sections" and other subdivisions or clauses are to the corresponding articles, sections, subdivisions or clauses of this Agreement; and the words "hereby," "herein," "hereof," "hereto," "'herewith" and other words of similar import refer to this Agreement as a whole and not to any particular article, section, exhibit, subdivision or clause of this Agreement. Section 6.08 Net Contract. This Agreement shall be deemed and construed to be a net contract, and the City shall pay absolutely net during the term hereof all payments required under this Agreement, free of any deductions and without abatement, diminution or set-off whatsoever. Section 6.09 Term. This Agreement shall become effective upon its execution and shall remain in full force and effect until January 1, 2028. Section 6.10 Entire Agreement. The provisions of this Agreement shall constitute the entire agreement of the Parties hereto with respect to the subject matter included in this Agreement and shall supercede any other agreement, understanding or arrangement, whether written or oral, between the Parties with respect to the subject matter of this Agreement,. Section 6.11 California Law. This Agreement shall be construed and governed in accordance with the laws of the State with respect to contracts made and to be performed in the State. IX)CSLAI:428807.5 l I IN WITNESS WHEREOF, the Parties hereto have executed and attested this Agreement by their respective officers thereunto duly authorized, as of the day and year first written above. ATTEST: BRUCE V. MALKENHORST, City Clerk APPROVED AS TO FORM: ""� . . "-Q� EDUARDO OLIVO, City Attorney CITY OF VERNON By: Name: eo=a!lburg Title: Mayor VERNON HISTORIC PRESERVATION SOCIETY By: Name: eonis C. Ma urg Title: President DOCSLA1:428807.5 12 ATTEST: BRUCE V. MALKENHORST, Secretary DOCSLAI:428807.5 13 ACTION BY UNANIMOUS WRITTEN CONSENT OF THE BOARD OF DIRECTORS OF VERNON HISTORIC PRESERVATION SOCIETY a California Nonprofit Public Benefit Corporation The undersigned, being the directors of the Vernon Historic Preservation Society (the "Corporation"), hereby adopt the following resolutions on behalf of the Corporation, pursuant to the authority vested in them by Section 5211(b) of the California Nonprofit Corporation Law and the Bylaws of the Corporation, for the purpose, among other things, of approving the form of, and authorizing the execution and delivery of, an Historic Buildhng Preservation Agreement (the "Agreement") and authorizing certain other matters relating thereto: THE HISTORIC BUILDING PRESERVATION AGREEMENT WHEREAS, the City of Vernon (the "City"), a municipal corporation duly organized and existing under and by virtue of the Constitution of the State of California (the "State") and its Charter, owns and operates a municipal electric utility system providing electric service to the inhabitants of the City; and WHEREAS, in order to assure an adequate and reliable source of electricity to satisfy the load requirements of the inhabitants of the City, the City has determined to construct and operate an approximately 134 megawatt combined cycle electric generating facility (the "Malburg Generating Station Project"); and WHEREAS, the Malburg Generating Station Project is to be constructed and located on approximately 3.4 acres of the City's existing electric generating facility located at 2716 East 50th Street in Vernon, California (the "Station A"); and WHEREAS, the City has determined that certain buildings and other properties of historic and cultural significance located at Station A (the "Historic Facilities") are of historic significance, and, in connection with the permitting, construction and operation of the Malburg Generating Station Project, the City desires to provide for the preservation of the Historic Facilities and to arrange for educational and cultural uses of the Historic Facilities; and WHEREAS, this Board of Directors proposes to enter into the Agreement with the City, pursuant to which the Corporation will take an active role in the preservation of the Historic Facilities and promote the educational and cultural uses of the Historic Facilities; and NOW, THEREFORE, BE IT RESOLVED; that all of the recitals herein contained are true and correct and the Board of Directors so finds; and RESOLVED FURTHER, that the President and Chief Financial Officer (each, a "Designated Officer") be, and each of them individually hereby is, authorized and directed, in the name of and on behalf of the Corporation, to execute and deliver an Historic Building Preservation DOCSLA1:436651.2 Agreement between the Corporation and the City, substantially in the form of the Agreement which has been presented to and reviewed by this Board of Directors on the date hereof, upon such terms and conditions as the Authorized Person executing such Agreement, acting in his/her sole discretion, determine may be necessary or appropriate (such determination shall be conclusively evidenced by the execution and delivery of the Agreement); and RESOLVED FURTHER, that the Secretary of the Corporation is hereby authorized to attest the signature of the Designated Officer executing the Agreement on behalf of the Corporation. OMNIBUS RESOLUTION RESOLVED, that the officers of the Corporation be, and each hereby are, authorized and directed to do and perform any and all such acts, including execution of any and all documents and certificates, as such officers shall deem necessary or advisable, to carry out the purposes and intent of the foregoing resolutions and the Agreement; and RESOLVED FURTHER, that any actions taken by such officers prior to the date of the foregoing resolutions that are within the authority conferred thereby are hereby ratified, confirmed and approved as the acts and deeds of the Corporation. IN WITNESS WHEREOF, the undersigned directors have executed this unanimous written consent on the dates opposite their names. Dated: January $_, 2003 a' Leonis C. Malburg Dated: January 8 2003 Thomas A. Ybarra Dated: January 8 2003 William J. Davis 4 4 Dated: January 8 2003 Hilario Go ales Dated: January 8 , 2003 �i &1)44 W. Michael McCormick 2 DOCSLA1:436651.2 ACTION tY UNANIMOUS WRITTEN CONSENT OFTHEBOARD OF DIRECTORS OF VERNON HISTORIC PRESERVATION SOCIETY a California Nonprofit Public Benefit Corporation The undersigned, being the directors of the Vernon Historic Preservation Society (the "Corporation"), hereby adopt the following resolutions on behalf of the Corporation, pursuant to the authority vested in them by Section 5211(b) of the California Nonprofit Corporation Law, for the purpose, among other things, of perfecting the organization of the Corporation: APPOINTMENT OF OFFICERS RESOLVED, that the following persons are elected to the offices indicated next to their names, to take their respective offices immediately upon such appointment: Office President Chief Financial Officer Secretary EMPLOYER IDENTIFICATION Name T onni s C Malburg RrvnP V_ Malkenhorst Bruce V. Malkenhorst RESOLVED, that the President is hereby authorized and directed to take all actions deemed necessary or advisable to secure federal and state employer identification numbers. TAX EXEMPTION FILINGS RESOLVED, that the President is hereby authorized to execute and deliver IRS Form 1023 (Application for Recognition of Exemption) recognizing the Corporation to be exempt from tax under Section 501(c)(3) of the Internal Revenue Code of 1986, and is authorized to execute and deliver IRS Form 2848 (Power of Attorney and Declaration of Representative), and such other documents as may be required to qualify the Corporation as a tax exempt non-profit corporation under state and federal law. ACCOUNTING YEAR RESOLVED, that the fiscal year of the Corporation shall begin on January 1 of each year and end on December 31 of each year. DOCSSF1:649842.3 ADOPTION OF BYLAWS RESOLVED, that the bylaws of the Corporation in the form attached hereto and as presented to the directors of the Corporation are adopted. The Secretary is hereby authorized and directed to execute a certification of adoption of the bylaws and to file the bylaws as so certified in the minute book of the Corporation, and to see that a copy of the bylaws, similarly certified, is kept at the principal office of the Corporation. OMNIBUS RESOLUTION RESOLVED, that the officers of the Corporation be, and each hereby are, authorized and directed to do and perform any and all such acts, including execution of any and all documents and certificates, as such officers shall deem necessary or advisable, to carry out the purposes and intent of the foregoing resolutions; and RESOLVED FURTHER, that any actions taken by such officers prior to the date of the foregoing resolutions that are within the authority conferred thereby are hereby ratified, confirmed and approved as the acts and deeds of the Corporation. IN WITNESS WHEREOF, the undersigned directors have executed this unanimous written consent on the dates opposite their names. Dated: January $, 2003 Dated: January $,, 2003 Dated: January J, 2003 Dated: January 8 2003 Dated: January 8 2003 2 DOCSSF1:649842.3 Leonis C. Malburg M Mn� ".. az"gew l PV � Hilario Gonzales W. Michael McCormick i oF•�'f R�•0 `. RECEIVED RECEIVED NOV 3 0 2017 ��Y ,�o�ss NOV 3 0 2017 CITY CLERKS OFFICE STAFF REPORT CITVA9MINISTRATI ON VERNON HISTORIC PRESERVATION SOCIETY G�� DATE: December 5, 2017 TO: Honorable Members of the Vernon Historical Preservation Society FROM: Maria Ayala, Executive Director of the Vernon Historical Preservation Society Originator: Matthew Ceballos, Deputy City Clerk RE: Agreement to Terminate the Historic Building Preservation Agreement Recommendation A. Find that Terminating the Historic Building Preservation Agreement does not constitute a "project" pursuant to section 15378(b)(2) of the Guidelines to the California Environmental Quality Act ("CEQA"), because it constitutes an administrative activity that will not result in direct or indirect physical changes to the environment; and even if the execution of the proposed agreement did constitute a project, it would be exempt from CEQA in accordance with Section 15061(b)(3), the general rule that CEQA only applies to projects that may have an effect on the environment; and B. Approve an Agreement to Terminate the Historic Building Preservation Agreement dated January 1, 2003. Background On December 4, 2002 the City Council of the City of Vernon approved Resolution No. 8111, an agreement between the City of Vernon and the Vernon Historic Preservation Society (VHPS) for the purpose of preserving certain "historic facilities" within the Malburg Generating Station, and to promote the educational and cultural uses of the "historic facilities" within the City. The City and the VHPS entered into a Historic Building Preservation Agreement ("Preservation Agreement"), dated January 1, 2003, for this purpose. Since the execution of the Preservation Agreement, minimal effort and resources have been allocated to preserve, educate, or properly identify any buildings or areas as "historic facilities". In addition, City staff have determined that the "historic facilities" located at or in the Malburg Generating Station were never recognized by the State of California Office of Historic Preservation, and thus do not have historic designation status. Staff is recommending the agreement is terminated and the onus on preserving the history of Vernon is placed at the discretion of the City Council of the City of Vernon. Page 1 of 2 The attached agreement has been reviewed and approved as to form by the City Attorney's Office. Fiscal Impact None. Attachment(s ) 1) Agreement to Terminate Page 2 of 2 AGREEMENT TO TERMINATE HISTORIC BUILDING PRESERVATION AGREEMENT BETWEEN THE CITY OF VERNON AND THE VERNON HISTORIC PRESERVATION SOCIETY (VHPS) This Agreement to Terminate the Historic Building Preservation Agreement ("Preservation Agreement"), is made as of , 2018 by and between the City of Vernon, a California charter city and municipal corporation duly organized and existing under and by virtue of the Constitution and laws of the State of California (the "City"), and the Vernon Historic Preservation Society, a nonprofit public benefit corporation duly incorporated under and by virtue of the laws of the State of California (the "Society") (each of the City and the Society being herein referred to individually as a "Party" or collectively as the "Parties"). WHEREAS, the City and the Society are parties to a Historic Building Preservation Agreement, dated as of January 1, 2003, for the purpose of preserving certain "historic facilities" within the Malburg Generating Station, and to promote the educational and cultural uses of the designated "historic facilities" within the City; and WHEREAS, the City and the Society desire to terminate the Preservation Agreement, finding that since the creation of the Agreement, minimal effort and resources have been allocated to preserve, educate, or properly identify any buildings or areas as "historic facilities", In addition, the City and the Society found that the "historic facilities" located at or in the Malburg Generating Station were never recognized by the State of California Office of Historic Preservation, and thus do not have historic designation status. NOW, THEREFORE, the Parties agree as follows: 1. The Preservation Agreement is hereby terminated. 2. The person or persons executing this Agreement to Terminate on behalf of each of the Parties warrants and represents that he or she has the authority to execute this Agreement to Terminate on behalf of that party and has the authority to bind that party to the performance of its obligations hereunder. [Signatures Begin on Next Page]. -1- IN WITNESS WHEREOF, the parties have signed this Termination Agreement as of the date stated in the introductory clause. CITY OF VERNON a California charter city and municipal corporation I: Melissa Ybarra, Mayor ATTEST: Maria E. Ayala, City Clerk APPROVED AS TO FORM: Hema Patel, City Attorney Vernon Historic Preservation Society, a nonprofit public benefit corporation By: Name: Melissa Ybarra Title: President -2- RESOLUTION NO. 2018-01 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON APPROVING AND AUTHORIZING THE EXECUTION OF AN AGREEMENT TO TERMINATE HISTORIC BUILDING PRESERVATION AGREEMENT BY AND BETWEEN THE CITY OF VERNON AND THE VERNON HISTORIC PRESERVATION SOCIETY WHEREAS, on December 4, 2002, the City Council of the City of Vernon adopted Resolution No. 8111 approving the form of, and authorizing the execution and delivery of an Historic Building Preservation Agreement (the "Preservation Agreement") for the purpose of preserving certain "historic facilities" within the Malburg Generating Station, and to promote the educational and cultural uses of the "historic facilities" within the City; and WHEREAS, since the execution of the Preservation Agreement, minimal effort and resources have been allocated to preserve, educate, or properly identify any buildings or areas as "historic facilities"; and WHEREAS, City staff has determined that the "historic facilities" located at or in the Malburg Generating Station were never recognized by the State of California Office of Historic Preservation, and thus do not have historic designation status; and WHEREAS, by memorandum dated January 16, 2018, the City Clerk has recommended the approval of an Agreement to Terminate the Preservation Agreement and the onus on preserving the history of Vernon is placed at the discretion of the City Council of the City of Vernon; and WHEREAS, the City Council of the City of Vernon desires to approve the Agreement to Terminate the Preservation Agreement. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF VERNON AS FOLLOWS: SECTION 1: The City Council of the City of Vernon hereby finds and determines that the above recitals are true and correct. SECTION 2: The City Council of the City of Vernon finds that this action is exempt under the California Environmental Quality Act (CEQA), because it constitutes an administrative activity that will not result in direct or indirect physical changes to the environment; and even if the adoption of the proposed resolution did constitute a project, it would be exempt from CEQA in accordance with Section 15061(b)(3), the general rule that CEQA only applies to projects that may have an effect on the environment. SECTION 3: The City Council of the City of Vernon hereby approves the Agreement to Terminate Historic Preservation Agreement with the Vernon Historic Preservation Society, in substantially the same form as the copy which is attached hereto as Exhibit A. SECTION 4: The City Council of the City of Vernon hereby authorizes the Mayor or Mayor Pro-Tem to execute said Agreement for, and on behalf of, the City of Vernon and the City Clerk, or Deputy City Clerk, is hereby authorized to attest thereto. SECTION 5: The City Council of the City of Vernon hereby instructs the City Administrator, or his designee, to take whatever actions are deemed necessary or desirable for the purpose of implementing and carrying out the purposes of this Resolution and the transactions herein approved or authorized, including but not limited to, any non -substantive changes to the Agreement attached herein. SECTION 6: The City Council of the City of Vernon hereby directs the City Clerk, or the Deputy City Clerk, to retain the fully executed Agreement. - 2 - SECTION 7: The City Clerk, or y Clerk, of the City of Vernon shall certify to the passage, approval and adoption of this resolution, and the City Clerk, or Deputy City Clerk, of the City of Vernon shall cause this resolution and the City Clerk's, or Deputy City Clerk's, certification to be entered in the File of Resolutions of the Council of this City. APPROVED AND ADOPTED this 16th day of January, 2018. ATTEST: Maria E . Aya City Clerk / DIIeputy G-A ty-el-er'__ APPROVED AS TO FORM: 11 rrj Brian Byun, Senior Deputy City Attorney - 3 - Name Melissa Ybarra Title: Mayor / STATE OF CALIFORNIA ) ) ss COUNTY OF LOS ANGELES ) I, Maria Z . Ayala4 City Clerk / ���� � , ^-' � � 1 _ _ _ of the City of Vernon, do hereby certify that the foregoing Resolution, being Resolution No. 2018-01, was duly passed, approved and adopted by the City Council of the City of Vernon at a regular meeting of the City Council duly held on Tuesday, January 16, 2018, and thereafter was duly signed by the Mayor or Mayor Pro-Tem of the City of Vernon. Executed this ,ZZ day of January, 2018, at Vernon, California. (SEAL) - 4 - Maria E . Iyala City Clerk / EXHIBIT A AGREEMENT TO TERMINATE HISTORIC BUILDING PRESERVATION AGREEMENT BETWEEN THE CITY OF VERNON AND THE VERNON HISTORIC PRESERVATION SOCIETY (VHPS) This Agreement to Terminate the Historic Building Preservation Agreement ("Preservation Agreement"), is made as of , 2018 by and between the City of Vernon, a California charter city and municipal corporation duly organized and existing under and by virtue of the Constitution and laws of the State of California (the "City"), and the Vernon Historic Preservation Society, a nonprofit public benefit corporation duly incorporated under and by virtue of the laws of the State of California (the "Society") (each of the City and the Society being herein referred to individually as a "Party" or collectively as the "Parties"). WHEREAS, the City and the Society are parties to a Historic Building Preservation Agreement, dated as of January 1, 2003, for the purpose of preserving certain "historic facilities" within the Malburg Generating Station, and to promote the educational and cultural uses of the designated "historic facilities" within the City; and WHEREAS, the City and the Society desire to terminate the Preservation Agreement, finding that since the creation of the Agreement, minimal effort and resources have been allocated to preserve, educate, or properly identify any buildings or areas as "historic facilities", In addition, the City and the Society found that the "historic facilities" located at or in the Malburg Generating Station were never recognized by the State of California Office of Historic Preservation, and thus do not have historic designation status. NOW, THEREFORE, the Parties agree as follows: The Preservation Agreement is hereby terminated. 2. The person or persons executing this Agreement to Terminate on behalf of each of the Parties warrants and represents that he or she has the authority to execute this Agreement to Terminate on behalf of that party and has the authority to bind that party to the performance of its obligations hereunder. [Signatures Begin on Next Page]. IN WITNESS WHEREOF, the parties have signed this Termination Agreement as of the date stated in the introductory clause. CITY OF VERNON a California charter city and municipal corporation Melissa Ybarra, Mayor ATTEST: Maria E. Ayala, City Clerk APPROVED AS TO FORM: Hema Patel, City Attorney Vernon Historic Preservation Society, a nonprofit public benefit corporation Name: Melissa Ybarra Title: President -2- FULLY EXECUTED AGREEMENT CONTRACT/AMENDMENT SIGNATURE ROUTING FORM CONTRACTOR: N/ CONTRACT PURPOSE: Agreement to Terminate the Historic Building Preservation Agreement CONTRACT IS: ❑ FEDERAL ❑ PREVAILING WAGE ❑ COMPETITIVE SELECTION & NOTICED RFP ❑ COMPETITIVE BID & NOTICED INVITATION TO BID ❑ EXEMPT FROM COMPETITIVE PROCESS (APPROVAL ATTACHED) ❑ SERVICES ❑ MATERIALS ❑ BUDGETED ❑ NOT BUDGETED TOTAL CONTRACT VALUE: $ 0 Charge Acct. No(s) Amendment Value $ 0 ❑ Contract is an Amendment to Contract No. 0 (if applicable) RESPONSIBLE DEPARTMENT PERSON: Matthew Ceballos PHONE: 286 AUTHORIZATION: -'Approved by Council on 1/16/18 and by VHPS 12/5/17 (Check One) Resolution No. 2018-01 (if applicable) ❑ Approved by City Administrator on Note: Attach supporting documentation ❑Amendment Approved by (if applicable) ROUTING SEQUENCE: (Please Follow In Order — Do not use N/A) Initials Date (1) Responsible Department Person Checks substance of contract and assembles two (2) copies of contract, insurance & bond documents, certifies compliance with Competitive Bidding and Purchasing Ordinance (2) Liability and Claims Approves insurance and sureties, if bonds required (3) Finance (Purchasing) Checks compliance with Competitive Bidding & Living Wage Ordinances and reflected in current budget JV (4) City Attorney Approves contract as to form, verifies bonds and insurance included �J (5) City Signatory ',bq Signs all copies on behalf of City (6) City Clerk Attests signatures, numbers, files contract, insurance and bonds, and l� transmits duplicate original to contractor, notifies IT to remove related RFP/bid notice, notifies any "consultant" of duties to file Form 700, if applicable Rev. 1/27/14 AGREEMENT TO TERMINATE HISTORIC BUILDING PRESERVATION AGREEMENT BETWEEN THE CITY OF VERNON AND THE VERNON HISTORIC PRESERVATION SOCIETY (VHPS) This Agreement to Terminate the Historic Building Preservation Agreement ("Preservation Agreement"), is made as of January 16, 2018, by and between the City of Vernon, a California charter city and municipal corporation duly organized and existing under and by virtue of the Constitution and laws of the State of California (the "City"), and the Vernon Historic Preservation Society, a nonprofit public benefit corporation duly incorporated under and by virtue of the laws of the State of California (the "Society") (each of the City and the Society being herein referred to individually as a "Party" or collectively as the "Parties"). WHEREAS, the City and the Society are parties to a Historic Building Preservation Agreement, dated as of January 1, 2003, for the purpose of preserving certain "historic facilities" within the Malburg Generating Station, and to promote the educational and cultural uses of the designated "historic facilities" within the City; and WHEREAS, the City and the Society desire to terminate the Preservation Agreement, finding that since the creation of the Agreement, minimal effort and resources have been allocated to preserve, educate, or properly identify any buildings or areas as "historic facilities". In addition, the City and the Society found that the "historic facilities" located at or in the Malburg Generating Station were never recognized by the State of California Office of Historic Preservation, and thus do not have historic designation status. NOW, THEREFORE, the Parties agree as follows: The Preservation Agreement is hereby terminated. 2. The person or persons executing this Agreement to Terminate on behalf of each of the Parties warrants and represents that he or she has the authority to execute this Agreement to Terminate on behalf of that party and has the authority to bind that party to the performance of its obligations hereunder. [Signatures Begin on Next Page]. -1- IN WITNESS WHEREOF, the parties have signed this Termination Agreement as of the date stated in the introductory clause. CITY OF VERNON a California charter city and municipal corporation _ am_�_/_ b. r ATTEST: VV-"' Maria E. Ayala, City Clerk APPROVED AS TO FORM: Hema atel, City Atty Vernon Historic Preservation Society, a nonprofit public benefit corporation By: Name: Meld sa Ybarra Title: President -2- STAFF REPORT of F RECEIVE® JAN 10 2018 CITY CLERK'S OFFICE STAFF REPORT CITY CLERK DEPARTMENT DATE: January 16, 2018 JAN 0 8 2018 CITY ADMINISTRATION TO: Honorable Members of the Vernon Historical Preservation Society FROM: Maria E. Ayala, City Clerk Originator: Matthew Ceballos, Deputy City Clerk RE: A Resolution Terminating the Historic Building Preservation Agreement Recommendation A. Find that the Resolution Terminating the Historic Building Preservation Agreement does not constitute a "project' pursuant to section 15378(b)(2) of the Guidelines to the California Environmental Quality Act ("CEQA"), because it constitutes an administrative activity that will not result in direct or indirect physical changes to the environment; and even if the adoption of the proposed resolution did constitute a project, it would be exempt from CEQA in accordance with Section 15061(b)(3), the general rule that CEQA only applies to projects that may have an effect on the environment; and B. Adopt a Resolution Terminating the Historic Building Preservation Agreement. Backl4round On December 4, 2002 the City Council of the City of Vernon approved Resolution No. 8111, an agreement between the City of Vernon and the Vernon Historic Preservation Society (VHPS) for the purpose of preserving certain "historic facilities" within the Malburg Generating Station, and to promote the educational and cultural uses of the "historic facilities" within the City. The City and the VHPS entered into a Historic Building Preservation Agreement ("Preservation Agreement'), dated January 1, 2003, for this purpose. Since the execution of the Preservation Agreement, minimal effort and resources have been allocated to preserve, educate, or properly identify any buildings or areas as "historic facilities". In addition, City staff have determined that the "historic facilities" located at or in the Malburg Generating Station were never recognized by the State of California Office of Historic Preservation, and thus do not have historic designation status. Staff is recommending the agreement be terminated and the onus on preserving the history of Vernon is placed at the discretion of the City Council of the City of Vernon. Page 1 of 2 At the December 5, 2017 Vernon Historic Preservation Society Meeting, the Board of Directors unanimously voted to approve an Agreement to Terminate the Historic Building Preservation Agreement dated January 1, 2003. Fiscal Impact None. Attachment(s) 1) Di aft Resolution Page 2 of 2 RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON APPROVING AND AUTHORIZING THE EXECUTION OF AN AGREEMENT TO TERMINATE HISTORIC BUILDING PRESERVATION AGREEMENT BY AND BETWEEN THE CITY OF VERNON AND THE VERNON HISTORIC PRESERVATION SOCIETY WHEREAS, on December 4, 2002, the City Council of the City of Vernon adopted Resolution No. 8111 approving the form of, and authorizing the execution and delivery of an Historic Building Preservation Agreement (the "Preservation Agreement") for the purpose of preserving certain "historic facilities" within the Malburg Generating Station, and to promote the educational and cultural uses of the "historic facilities" within the City; and WHEREAS, since the execution of the Preservation Agreement, minimal effort and resources have been allocated to preserve, educate, or properly identify any buildings or areas as "historic facilities"; and WHEREAS, City staff has determined that the "historic facilities" located at or in the Malburg Generating Station were never recognized by the State of California Office of Historic Preservation, and thus do not have historic designation status; and WHEREAS, by memorandum dated January 16, 2018, the City Clerk has recommended the approval of an Agreement to Terminate the Preservation Agreement and the onus on preserving the history of Vernon is placed at the discretion of the City Council of the City of Vernon; and WHEREAS, the City Council of the City of Vernon desires to approve the Agreement to Terminate the Preservation Agreement. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF VERNON AS FOLLOWS: SECTION 1: The City Council of the City of Vernon hereby finds and determines that the above recitals are true and correct. SECTION 2: The City Council of the City of Vernon finds that this action is exempt under the California Environmental Quality Act (CEQA), because it constitutes an administrative activity that will not result in direct or indirect physical changes to the environment; and even if the adoption of the proposed resolution did constitute a project, it would be exempt from CEQA in accordance with Section 15061(b)(3), the general rule that CEQA only applies to projects that may have an effect on the environment. SECTION 3: The City Council of the City of Vernon hereby approves the Agreement to Terminate Historic Preservation Agreement with the Vernon Historic Preservation Society, in substantially the same form as the copy which is attached hereto as Exhibit A. SECTION 4: The City Council of the City of Vernon hereby authorizes the Mayor or Mayor Pro-Tem to execute said Agreement for, and on behalf of, the City of Vernon and the City Clerk, or Deputy City Clerk, is hereby authorized to attest thereto. SECTION 5: The City Council of the City of Vernon hereby instructs the City Administrator, or his designee, to take whatever actions are deemed necessary or desirable for the purpose of implementing and carrying out the purposes of this Resolution and the transactions herein approved or authorized, including but not limited to, any non -substantive changes to the Agreement attached herein. SECTION 6: The City Council of the City of Vernon hereby directs the City Clerk, or the Deputy City Clerk, to retain the fully executed Agreement. - 2 - SECTION 7: The City Clerk, or Deputy City Clerk, of the City of Vernon shall certify to the passage, approval and adoption of this resolution, and the City Clerk, or Deputy City Clerk, of the City of Vernon shall cause this resolution and the City Clerk's, or Deputy City Clerk's, certification to be entered in the File of Resolutions of the Council of this City. APPROVED AND ADOPTED this 16th day of January, 2018. ATTEST: City Clerk / Deputy City Clerk APPROVED AS TO FORM: Brian Byun, Senior Deputy City Attorney Name: Title: Mavor / Mavor Pro-Tem - 3 - STATE OF CALIFORNIA ) ) ss COUNTY OF LOS ANGELES ) I, , City Clerk / Deputy City Clerk of the City of Vernon, do hereby certify that the foregoing Resolution, being Resolution No. , was duly passed, approved and adopted by the City Council of the City of Vernon at a regular meeting of the City Council duly held on Tuesday, January 16, 2018, and thereafter was duly signed by the Mayor or Mayor Pro-Tem of the City of Vernon. Executed this day of January, 2018, at Vernon, California. (SEAL) City Clerk / Deputy City Clerk - 4 - EXHIBIT A AGREEMENT TO TERMINATE HISTORIC BUILDING PRESERVATION AGREEMENT BETWEEN THE CITY OF VERNON AND THE VERNON HISTORIC PRESERVATION SOCIETY (VHPS) This Agreement to Terminate the Historic Building Preservation Agreement ("Preservation Agreement"), is made as of , 2018 by and between the City of Vernon, a California charter city and municipal corporation duly organized and existing under and by virtue of the Constitution and laws of the State of California (the "City"), and the Vernon Historic Preservation Society, a nonprofit public benefit corporation duly incorporated under and by virtue of the laws of the State of California (the "Society") (each of the City and the Society being herein referred to individually as a "Party" or collectively as the "Parties"). WHEREAS, the City and the Society are parties to a Historic Building Preservation Agreement, dated as of January 1, 2003, for the purpose of preserving certain "historic facilities" within the Malburg Generating Station, and to promote the educational and cultural uses of the designated "historic facilities" within the City; and WHEREAS, the City and the Society desire to terminate the Preservation Agreement, finding that since the creation of the Agreement, minimal effort and resources have been allocated to preserve, educate, or properly identify any buildings or areas as "historic facilities" In addition, the City and the Society found that the "historic facilities" located at or in the Malburg Generating Station were never recognized by the State of California Office of Historic Preservation, and thus do not have historic designation status. NOW, THEREFORE, the Parties agree as follows: The Preservation Agreement is hereby terminated. 2. The person or persons executing this Agreement to Terminate on behalf of each of the Parties warrants and represents that he or she has the authority to execute this Agreement to Terminate on behalf of that party and has the authority to bind that party to the performance of its obligations hereunder. [Signatures Begin on Next Page]. -1- IN WITNESS WHEREOF, the parties have signed this Termination Agreement as of the date stated in the introductory clause. CITY OF VERNON a California charter city and municipal corporation Melissa Ybarra, Mayor ATTEST: Maria E. Ayala, City Clerk APPROVED AS TO FORM: Hema Patel, City Attorney Vernon Historic Preservation Society, a nonprofit public benefit corporation By: Name: Melissa Ybarra Title: President -2-