Resolution No. 8840
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RESOLUTION NO. 8840
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION OF
AN ACCESS AGREEMENT BY AND BETWEEN THE CITY OF
VERNON AND MATHESON TRI-GAS, INC. REGARDING
PROPERTY AT 4855 EAST 52ND PLACE IN THE CITY OF
VERNON
WHEREAS, by Resolution No. 8597 adopted on November 17, 2004,
the City of Vernon approved the purchase of real property located at
4855 E. 52Dd Place (the "Property") owned by Saint-Gobain Containers,
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Inc. for future development; and
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WHEREAS, the City and Matheson Tri-Gas, Inc. ("Matheson")
are in the process of negotiating a lease of the Property wherein
Matheson will be constructing certain improvements on the Property;
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and
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WHEREAS, prior to executing a lease, Matheson is requesting
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access to the Property for purposes of undertaking certain due
diligence, including, without limitation, geotechnical studies that
will involve borings on the Property; and
WHEREAS, the City desires to enter into an agreement with
Matheson setting forth the terms and conditions under which the City
will grant access to the Property.
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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 recitals contained hereinabove are true
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and correct.
SECTION 2:
The City Council of the City of Vernon hereby
1 approves the Access Agreement dated July 13, 2005, with Matheson Tri-
2 Gas, Inc., a copy of which is attached hereto as Exhibit A and
3 incorporated by reference.
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SECTION 3:
The City Council of the City of Vernon hereby
5 authorizes the Acting City Clerk to execute said Agreement for, and on
6 behalf of, the City of Vernon.
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SECTION 4:
The City Council of the City of Vernon hereby
8 approves and ratifies all actions taken pursuant to the terms and
9 conditions of the Agreement.
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SECTION 5:
The Acting City Clerk of the City of Vernon
11 shall certify to the passage of this resolution, and thereupon and
12 thereafter the same shall be in full force and effect.
13 APPROVED AND ADOPTED this 7th day of September, 2005.
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20 BRUCE V. MALKENHORST, JR., Acting City Clerk
~~
.-/' . EONIS C. . LBURG, Mayor
ATTEST:
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1 STATE OF CALIFORNIA
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ss
COUNTY OF LOS ANGELES
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I, BRUCE V. MALKENHORST, JR., Acting City Clerk of the City of
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Vernon, do hereby certify that the foregoing Resolution, being
Resolution No. 8840, was duly adopted by the City Council of the City
of Vernon at a regular meeting of the City Council duly held on
Wednesday, September 7, 2005, and thereafter was duly signed by the
Mayor of the City of Vernon.
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(SEAL)
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BRUCE V. MALKENHORST, JR.
Acting City Clerk
EXHIBIT
A
ACCESS AGREEMENT
This Access Agreement (this "Agreement") is entered into as of July 13,2005 by
and between the City of Vernon (the "City") and Matheson Tri-Gas, Inc. ("Matheson") in regard
to the property located at 4855 East 52nd Place, Vernon, California (the "Property"), based on the
following facts and circumstances:
A. The City and Matheson are in the process of negotiating a lease (the "Lease")
with respect to the Property. Pursuant to the Lease, Matheson will be constructing certain
improvements on the Property in accordance with plans and specifications that are subject to the
approval of the City.
B. Matheson desires to undertake certain due diligence, including, without
limitation, undertaking geotechnical studies that will involve borings on the Property prior to the
execution of the Lease, and the City desires to grant to Matheson a license to enter the Property
for purposes of performing its due diligence on the terms and conditions of this Agreement
Therefore, the parties agree as follows:
1. Matheson will only undertake due diligence, and not commence any construction
until the Lease has been signed, and the plans have been approved.
2. If negotiations of the Lease conclude unsuccessfully, Matheson shall promptly
cease all due diligence at the Property, remove all of its equipment located at the Property, and.
repair any damage done to the Property by Matheson, its employees, agents, consultants,
contractors, or subcontractors (collectively, the "Matheson Parties") at Matheson's sole cost and
expense.
3. The performance of the due diligence shall be at Matheson's sole cost, expense
and risk. All due diligence shall be undertaken in accordance with good and proper techniques,
using personnel and equipment qualified to perform the work being undertaken, and shall be
undertaken in compliance with all applicable statutes, codes, ordinances and regulations. All
required permits will be properly obtained. All holes, borings, trenches, or other invasive work
performed at the Property by the Matheson Parties will be properly filled in or returned to the
condition existing prior to entry by the Matheson Parties, and any unsafe conditions at the
Property caused by the Matheson Parties shall be repaired and that portion of the Property shall
be returned to the condition existing prior to entry by the Matheson Parties.
4. Matheson acknowledges that the prior owners of the Property (Saint-Gobain
Containers, Inc.) and their agents, contractors, and subcontractors (collectively, "Saint Gobain")
have performed certain remediation at the Property and are in the process of demolishing
buildings and performing other work at the Property. Matheson acknowledges that the
remediation and demolition creates certain hazards on the Property, including, without limitation,
possible release of particles and dust, possible holes or trenches on the Property, possible
unstable structures on the Property, and other possible hazards that could result from remediation
or demolition on the Property ("Hazards"). Matheson also acknowledges that geotechnical
0191010022124749.3
(,
investigations have inherent risks in addition to those identified as known or suspected hazards
and will ensure that Matheson Parties apply appropriate safety precautions. Matheson shall
deliver to Saint Gobain and the City a copy of the Matheson work plan that shows or describes
the locations at which Matheson's contractor intends to conduct borings or other invasive
testings or inspections. The City,shall request that Saint Gobain review such plans and provide
information to Matheson in regard to whether Saint Gobain has any knowledge of whether the
borings are in the general location of any known or suspected underground obstructions at the
Property. The City shall not be in breach of this Agreement or otherwise liable to Matheson if
Saint Gobain does not respond to such request or such response is incomplete or inaccurate in
any way, it being understood that such a request from the City to Saint Gobain is merely an
accommodation to allow Matheson to perform testing prior to the completion of Saint Gobain's
work at the Property. Matheson, for itself, its officers, directors, shareholders, the Matheson
Parties, and others entering onto the Property at the request of Matheson, hereby releases the
City, its elected officials, staff, employees, representatives and agents (the "City Parties"), and
Saint Gobain, from all claims, actions, losses, damages, injuries, costs and expenses (including,
without limitation, reasonable attorneys' fees and costs), including all claims of illness, injury,
death, or property damage, arising out of or resulting from any Matheson Parties entering onto
the Property or performing any due diligence or work thereon.
5. Matheson agrees that it does not have any claim to any leasehold or other interest
or estate of any kind in the Property by virtue of this Agreement.
6. Prior to entering onto the Property, Matheson shall (i) procure, pay for and keep
in full force and effect until the completion of its due diligence, an occurrence form commercial
general liability policy with respect to the Property and the activities of the Matheson Parties
relating to the Property in which the limits with respect to personal injury or death and property
damage shall not be less than Two Million Dollars ($2,000,000) per occurrence, (ii) procure, pay
for and keep in full force and effect until the completion of its due diligence, or require
Matheson's contractors to.procure, pay for and keep in full force and effect until the completion
of the due diligence, an occurrence form pollution liability insurance policy with respect to the
Property and the activities of the Matheson Parties relating to the Property in which the limits
shall not be less than Two Million Dollars ($2,000,000) per occurrence, and (iii) maintain in full
force and effect until the completion of the due diligence, Workers' Compensation and
Employer's Liability Insurance as required by law with a limit of liability of at least $1,000,000
each occurrence/aggregate. Each of the foregoing policies under (i) shall name the City Parties,
as well as Saint Gobain, as an additional insured party as its interests may appear. The policy
described in clause (i) shall include contractual liability coverage, oral and written, operations
premises liability, personal injury, independent contractors, broad form property damage, and
cross-liability coverage. Matheson shall provide the City with certificates of insurance
evidencing such insurance prior to entering or allowing its contractors to enter the Property. All
of the policies for the foregoing insurance shall be with responsible companies, and shall provide
that the City shall be given thirty (30) days' prior written notice of any alteration or termination
of coverage.
7. Matheson shall cause the Matheson Parties to coordinate with the City and Saint
Gobain in connection with the due diligence, and to not interfere with the ongoing work of Saint
Gobain at the Property. Matheson shall provide the City and Saint Gobain with advance notice
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0191010022124749.3
of any entry onto the Property including a description of what work is planned, and in what areas
of the Property the work will be performed, to ensure that entry is safe and will not interfere with
Saint Gobain's work. The City shall request that Saint Gobain provide a response to such plan to
ensure coordination between the parties; provided, however, the City shall not be in breach of
this Agreement or otherwise liable to Matheson if Saint Gobain does not respond to such request
or such response is incomplete or inaccurate in any way, it being understood that such a request
from the City to Saint Gobain is merely an accommodation to allow Matheson to perform testing
prior to the completion of Saint Gobain's work at the Property.
8. Matheson shall promptly pay for any work done or material furnished by or on
behalf of Matheson in or about the Property and will not pennit or suffer any lien to attach to the
Property and shall have no authority or power, express or implied, to create or cause any lien,
charge or encumbrance of any kind against the Property.
9. Matheson shall defend and hold the City Parties hannless from and against all
claims, liabilities, losses, damages and expenses of whatever nature, including those to the
person and property of the Matheson Parties and others, arising out of or in connection with
performance of the due diligence or any other work or entry at the Property. Matheson shall
defend and hold Saint Gobain hannless from and against all claims, liabilities, losses, damages
and expenses of whatever nature, including those to the person and property of the Matheson
Parties. and others, attributable to the negligence or wilful misconduct of Matheson Parties in
connection with performance of the due diligence or any other work or entry at the Property.
The City and Saint Gobain expressly understand that the Matheson Parties will be performing
geotechnical soil borings. So long as Matheson has notified the City and Saint Gobain of its
planned entry and provided its work plan, as described in this Agreement, and has not been
advised by the City or Saint Gobain that such entry or work could cause or exacerbate the
existing environmental conditions at the Property, and the Matheson work conforms to the
submitted work plan, such activity shall not form a basis or claim for causing or exacerbating the
existing environmental conditions at the Property.
10. This Agreement may be executed in counterparts, and facsimile signatures shall
be enforceable and binding on the parties, provided, however, that the parties shall exchange
originally signed documents on a reasonably prompt basis.
Executed as of the date first above written.
Matheson Tri-Gas, Inc.
By:
Name:
Title:
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\$<0 "17"" ~ I/~~ 't
EV'/C>
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0191010022124749.3
By:
Name:
Title:
City of Vernon
Name: ruce V. Malkenhorst
Title: Acting City Clerk
Approved As To Form
,20
ERIC T. FRESCH
CITY ATTORNEY
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0191010022124749.3
SUPPORTING
DOCUMENTS
.... .
..
ACCESS AGREEMENT
This Access Agreement (this "Agreement") is entered into as of July 13,2005 by
and between the City of Vernon (the "City") and Matheson Tri-Gas, Inc. ("Matheson") in regard
to the property located at 4855 East 52nd Place, Vernon, California (the "Property"), based on the
following facts and circumstances:
A.The City and Matheson are in the process of negotiating a lease (the "Lease")
with respect to the Property. Pursuant to the Lease, Matheson will be constructing certain
improvements on the Property in accordance with plans and specifications that are subject to the
approval of the City.
B. Matheson desires to undertake certain due diligence, including, without
limitation, undertaking geotechnical studies that will involve borings on the Property prior to the
execution of the Lease, and the City desires to grant to Matheson a license to enter the Property
for purposes of performing its due diligence on the terms and conditions of this Agreement.
Therefore, the parties agree as follows:
1. Matheson will only undertake due diligence, and not commence any construction
until the Lease has been signed, and the plans have been approved.
2. If negotiations of the Lease conclude unsuccessfully, Matheson shall promptly
cease all due diligence at the Property, remove all of its equipment located at the Property, and
repair any damage done to the Property by Matheson, its employees, agents, consultants,
contractors, or subcontractors (collectively, the "Matheson Parties") at Matheson's sole cost and
expense.
3. The performance of the due diligence shall be at Matheson's sole cost, expense
and risk. All due diligence shall be undertaken in accordance with good and proper techniques,
using personnel and equipment qualified to perform the work being undertaken, and shall be
undertaken in compliance with all applicable statutes, codes, ordinances and regulations. All
required permits will be properly obtained. All holes, borings, trenches, or other invasive work
performed at the Property by the Matheson Parties will be properly filled in or returned to the
condition existing prior to entry by the Matheson Parties, ahd any unsafe conditions at the
Property caused by the Matheson Parties shall be repaired and that portion of the Property shall
be returned to the condition existing prior to entry by the Matheson Parties.
4. Matheson acknowledges that the prior owners of the Property (Saint-Gobain
Containers, Inc.) and their agents, contractors, and subcontractors (collectively, "Saint Gobain")
have performed certain remediation at the Property and are in the process of demolishing
buildings and performing other work at the Property. Matheson acknowledges that the
remediation and demolition creates certain hazards on the Property, including, without limitation,
possible release of particles and dust, possible holes or trenches on the Property, possible
unstable structures on the Property, and other possible hazards that could result from remediation
or demolition on the Property ("Hazards"). Matheson also acknowledges that geotechnical
01910/0022 124749.3
,..
investigations have inherent risks in addition to those identified as known or suspected hazards
and will ensure that Matheson Parties apply appropriate safety precautions. Matheson shall
deliver to Saint Gobain and the City a copy of the Matheson work plan that shows or describes
the locations at which Matheson's contractor intends to conduct borings or other invasive
testings or inspections. The City shall request that Saint Gobain review such plans and provide
information to Matheson in regard to whether Saint Gobain has any knowledge of whether the
borings are in the general location of any known or suspected underground obstructions at the
Property. The City shall not be in breach of this Agreement or otherwise liable to Matheson if
Saint Gobain does not respond to such request or such response is incomplete or inaccurate in
any way, it being understood that such a request from the City to Saint Gobain is merely an
accommodation to allow Matheson to perform testing prior to the completion of Saint Gobain's
work at the Property. Matheson, for itself, its officers, directors, shareholders, the Matheson
Parties, and others entering onto the Property at the request of Matheson, hereby releases the
City, its elected officials, staff, employees, representatives and agents (the "City Parties"), and
Saint Gobain, from all claims, actions, losses, damages, injuries, costs and expenses (including,
without limitation, reasonable attorneys' fees and costs), including all claims of illness, injury,
death, or property damage, arising out of or resulting from any Matheson Parties entering onto
the Property or performing any due diligence or work thereon.
5. Matheson agrees that it does not have any claim to any leasehold or other interest
or estate of any kind in the Property by virtue of this Agreement.
6. Prior to entering onto the Property, Matheson shall (i) procure, pay for and keep
in full force and effect until the completion of its due diligence, an occurrence form commercial
general liability policy with respect to the Property and the activities of the Matheson Parties
relating to the Property in which the limits with respect to personal injury or death and property
damage shall not be less than Two Million Dollars ($2,000,000) per occurrence, (ii) procure, pay
for and keep in full force and effect until the completion of its due diligence, or require
Matheson's contractors to procure, pay for and keep in full force and effect until the completion
of the due diligence, an occurrence form pollution liability insurance policy with respect to the
Property and the activities of the Matheson Parties relating to the Property in which the limits
shall not be less than Two Million Dollars ($2,000,000) per occurrence, and (ill) maintain in full
force and effect until the completion of the due diligence, Workers' Compensation and
Employer's Liability Insurance as required by law with a limit of liability of at least $1,000,000
each occurrence/aggregate. Each of the foregoing policies under (i) shall name the City Parties,
as well as Saint Gobain, as an additional insured party as its interests may appear. The policy
described in clause (i) shall include contractual liability coverage, oral and written, operations
premises liability, personal injury, independent contractors, broad form property damage, and
cross-liability coverage. Matheson shall provide the City with certificates of insurance
evidencing such insurance prior to entering or allowing its contractors to enter the Property. All
of the policies for the foregoing insurance shall be with responsible companies, and shall provide
that the City shall be given thirty (30) days' prior written notice of any alteration or termination
of coverage.
7. Matheson shall cause the Matheson Parties to coordinate with the City and Saint
Gobain in connection with the due diligence, and to not interfere with the ongoing work of Saint
Gobain at the Property. Matheson shall provide the City and Saint Gobain with advance notice
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0191010022124749.3
...
of any entry onto the Property including a description of what work is planned, and in what areas
of the Property the work will be performed, to ensure that entry is safe and will not interfere with
Saint Gobain's work. The City shall request that Saint Gobain provide a response to such plan to
ensure coordination between the parties; provided, however, the City shall not be in breach of
this Agreement or otherwise liable to Matheson if Saint Gobain does not respond to such request
or such response is incomplete or inaccurate in any way, it being understood that such a request
from the City to Saint Gobain is merely an accommodation to allow Matheson to perform testing
prior to the completion of Saint Gobain's work at the Property. .
8. Matheson shall promptly pay for any work done or material furnished by or on
behalf of Matheson in or about the Property and will not permit or suffer any lien to attach to the
Property and shall have no authority or power, express or implied, to create or cause any lien,
charge or encumbrance of any kind against the Property.
9. Matheson shall defend and hold the City Parties harmless from and against all
claims, liabilities, losses, damages and expenses of whatever nature, including those to the
person and property of the Matheson Parties and others, arising out of or in connection with
performance of the due diligence or any other work or entry at the Property. Matheson shall
defend and hold Saint Gobain harmless from and against all claims, liabilities, losses, damages
and expenses of whatever nature, including those to the person and property of the Matheson
Parties and others, attributable to the negligence or wilful misconduct of Matheson Parties in
connection with performance of the due diligence or any other work or entry at the Property.
The City and Saint Gobain expressly understand that the Matheson Parties will be performing
geotechnical soil borings. So long as Matheson has notified the City and Saint Gobain of its
planned entry and provided its work plan, as described in this Agreement, and has not been
advised by the City or Saint Gobain that such entry or work could cause or exacerbate the
existing environmental conditions at the Property, and the Matheson work conforms to the
submitted work plan, such activity shall not form a basis or claim for causing or exacerbating the
existing environmental conditions at the Property.
10. This Agreement may be executed in counterparts, and facsimile signatures shall
be enforceable and binding on the parties, provided, however, that the parties shall exchange
originally signed documents on a reasonably prompt basis.
Executed as of the date first above written.
Matheson Tri-Gas, Inc.
By:
Name:
Title:
-z::.Jdk ~
\S < 0 77".k:; 1/1'\'\# 1
E'V'I!)
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0191010022124749.3
~
By:
Name:
Title:
City of Vemon
Name: ruce V. Malkenhorst
Title: Acting City Clerk
Approved As To Form.
~
~'
ERICT.m:n '-
CITY ATTORNEY
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0191010022124749.3