Resolution No. 97501
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RESOLUTION NO. 9750
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND RATIFYING THE EXECUTION OF AN
ACCESS AGREEMENT BY AND BETWEEN THE CITY OF VERNON
AND K-2 PROP CO. LA, L.P. FOR PROPERTY LOCATED AT
5119 DISTRICT BOULEVARD IN THE CITY OF VERNON
WHEREAS, the City of Vernon and K-2 Prop Co. LA, L.P. ("K-
2") are in the process of negotiating a lease for the property located
at 5119 District Boulevard in the City of Vernon (`Property") to
construct certain improvements on the Property; and
WHEREAS, prior to executing the lease, K-2 desires to enter
onto the Property in order to undertake certain due diligence,
including, without limitation, undertaking geotechnical studies that
will involve borings on the Property; and
WHEREAS, the City desires to enter into an agreement with K-
2 setting forth the terms and conditions under which the City will
grant access to the Property; and
WHEREAS, in order,to meet the urgent need for access to the
Property, the Mayor Pro-Tem executed an Access Agreement on
October 28, 2008, subject to ratification by the City Council; and
WHEREAS, the City Council desires to approve and ratify the
actions of the Mayor Pro-Tem in executing the Access 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 recitals contained hereinabove are true
and correct.
SECTION 2: The City Council of the City of Vernon hereby
I approves and ratifies the Access Agreement with K-2, a copy of which
2 is attached hereto as Exhibit A and incorporated by reference.
3 SECTION 3: The City Council of the City of Vernon hereby
4 authorizes the City Administrator, or his designee, to execute any and
5 all documents as shall be required consistent with the terms of the
6 Access Agreement.
7 SECTION 4: The City Clerk of the City of Vernon shall
8 certify to the passage of this resolution, and thereupon and
9 thereafter the same shall be in full force and effect.
10 APPROVED AND ADOPTED this 3rd day of November, 2008.
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13 Name: Hilario Gonzales
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Title: "� / Mayor Pro-Tem
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AT EST:
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UELA GIRON, ity Clerk
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1 STATE OF CALIFORNIA )
ss
-2 COUNTY OF LOS ANGELES )
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4 I, MANUELA GIRON, City Clerk of the City of Vernon, do hereby
5 certify that the foregoing Resolution, being Resolution No. 9750, was
6 duly,adopted by the City Council of the City of Vernon at regular
7 meeting of the City Council duly held on Monday, November 3, 2008, and
8 thereafter was duly signed by the Mayor or Mayor Pro-Tem of the City of
9 Vernon.
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MANUELA GIR ity Clerk
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13 (SEAL)
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EXHIBIT A
ACCESS AGREEMENT
This Access Agreement (this "Agreement") is entered into as of October 23, 2008
by and between the City of Vernon (the "City") and K2 Pure Solutions Vernon, L.P, a Delaware
limited partnership ("K-2") in regard to the property located at 5119 District Blvd., Vernon,
California (the "Property"), based on the following facts and circumstances:
A. The City and K-2 are in the process of negotiating a lease (the "Lease") with
respect to the Property. Pursuant to the Lease, K-2, its employees, agents, consultants,
contractors, subcontractors and/or other authorized representatives (collectively, the "K-2
Parties") will be constructing certain improvements on the Property in accordance with plans and
specifications that are subject to the approval of the City.
B. K-2 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 the K-2 Parties 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. The K-2 Parties are hereby granted a temporary, revocable license to enter onto
the Property for a period of thirty (30) calendar days following the effective date of this
Agreement for due diligence purposes. This Agreement provides the K•-2 Parties with temporary
access to the Property, and under no circumstance will this Agreement ripen into an agreement
for permanent access, or a lease or easement (whether under claim of prescriptive right or
otherwise) or any other interest in the Property in favor of K-2. The K-2 Parties will only
undertake due diligence, and not commence any construction until the Lease has been signed,
and the plans have been approved. For clarification purposes, the parties acknowledge and agree
that the license granted herein is revocable only pursuant to and in accordance with Section 13
hereof.
2. If negotiations of the Lease conclude unsuccessfully, the K-2 Parties 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 the K-2 Parties at K-2's sole cost and
expense.
3. The K-2 Parties shall provide not less than 48 hours' prior notice of its intent to
enter onto the Property, which notice shall be given to Lew Pozzebon by telephone at 323-583-
8811 or by email at 1pozzebon@ci.vemon.ca.us, and provided further that all notices shall be
given and all work shall be performed on Monday through Thursday (excluding holidays).
4. The performance of the due diligence shall be at K-2'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
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performed at the Property by the K-2 Parties will be properly filled in or returned to the
condition existing prior to entry by the K-2 Parties, and any unsafe conditions at the Property
caused by the K-2 Parties shall be repaired and that portion of the Property shall be returned to
the condition existing prior to entry by the K-2 Parties.
5. K-2 acknowledges that the City has performed certain remediation at the
Property, but that the final demolition of all buildings and remediation has not yet been
completed. K-2 acknowledges that the prior and ongoing 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"). K-2 also acknowledges that geotechnical investigations have inherent risks in
addition to those identified as known or suspected Hazards and will ensure that the K 2 Parties
apply appropriate safety precautions. K-2 shall cause to be delivered to the City a copy of the K-
2 Parties' work plan that shows or describes the locations at which the K-2 Parties intend to
conduct borings or other invasive testings or inspections. K-2, for itself, its officers, directors,
shareholders, the K-2 Parties, and others entering onto the Property at the request of K-2, hereby
releases the City, its elected officials, staff, employees, representatives and agents (the "City
Parties"), from all claims, actions, losses, damages, injuries, costs and expenses (including,
without limitation, reasonable attorneys' fees and costs, and costs of litigation, including costs of
experts and witnesses) (collectively, "Claims"), including all Claims of illness, injury, death, or
property damage, arising out of or resulting from the entry onto the Property or the performance
of any due diligence or work thereon by any K-2 Party; provided, however, that the foregoing
release shall not apply with respect to Claims that are both the direct result of the gross
negligence or willful misconduct of any of the City Parties and are not insured or required to be
insured by K-2 under this Agreement.
6. K-2 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.
7. Prior to entering onto the Property, K-2 and/or the K-2 Parties shall (i) procure,
pay for and keep in full force and effect during the entire period in which the K-2 Parties have
access to the Property; the insurance described in Exhibit "A" attached hereto and incorporated
herein by this reference, and the insurance described in this Paragraph 7. The required insurance
shall mean and include (and if not listed on Exhibit "A" shall nevertheless include): (i) an
occurrence form commercial general liability policy with respect to the Property and the
activities of the K-2 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, (h) an occurrence form pollution liability insurance policy with respect to the
Property and the activities of the K-2 Parties relating to the Property in which the limits shall not
be less than Five Million Dollars ($5,000,000) per occurrence, and (iii) Workers' Compensation
and Employer's Liability Insurance as required by law with a limit of liability of at least One
Million Dollars ($1,000,000) each occurrence/aggregate. Each of the foregoing policies under
(i) and (ii) shall name the City, its officers and employees as additional insured parties 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. The policies shall not
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contain any intra-insured exclusions as between insured persons or organizations, but shall
include coverage for liability assumed by K-2 and/or the K-2 Parties under this Agreement as an
"insured contract" for the performance of K-2's indemnity obligations under this Agreement.
The limits of said insurance shall not, however, limit the liability of K-2 nor relieve K-2 of any
obligation hereunder. All insurance carried by K-2 and/or the K-2 Parties shall be primary to
and not contributory with any similar insurance carried by the City, whose insurance shall be
considered excess insurance only. If a K-.2 Party maintains the requisite insurance as stated
herein, any subcontractor performing work for that contractor shall not be required to maintain
its own insurance at the stated levels.
S. All insurance required herein shall be by companies duly licensed or admitted to
transact business in the State of California, and maintaining during the policy term a "General
Policyholders Rating" of at least B+, V, as set forth in the most current issue of "Best's Insurance
Guide". K- 2 and the K-2 Parties shall not do or permit to be done anything which invalidates the
required insurance policies. K-2 shall, prior to entering the Property (or allowing any K-2
Parties to enter the Property), cause to be.delivered to the City certificates evidencing the
existence and amounts of the required insurance (including the Declaration Page and Schedule of
Forms of Endorsement). No such policy shall be cancelable or not -renewed except after 30 days
prior written notice to the City. K-2 shall cause to be furnished to the City renewal certificates
within 10 days prior to expiration as evidence of renewals. Such policies shall be for a term of at
least one year.
9. K-2 shall cause the K-2 Parties to coordinate with the City in connection with the
due diligence. The K-2 parties shall provide the City with advance notice 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.
10. 1n connection with its due diligence or its exercise of any rights under this
Agreement, K-2 shall promptly pay for any work done or material furbished by or on behalf of
K-2 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.
11. K-2 shall protect, defend, indemnify and hold harmless the City and its officers
and employees, and each of them, jointly and severally, against and from any and all claims,
demands, causes of action, damages, costs (including, without limitation, all costs and expenses
of defense, such as consultants and expert witnesses, and reasonably attorneys' fees), expenses,
losses and liabilities (collectively, a "Loss"), at law or in equity, of every kind or nature
whatsoever, including, but not limited to, injury to or death of any person or persons and damage
to or destruction of any property, threatened, brought or instituted, arising out of or in any
manner directly or indirectly connected with the entry upon the Property by K-2 or any of the K-
2 Parties; provided, however, K-2 shall not be liable for, and the foregoing indemnity shall not
apply to, any Loss to the extent caused or resulting from the gross negligence or willfiiI
misconduct of the City. The indemnities set forth herein shall survive the termination of this
Agreement.
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12. The term of this Agreement shall commence as of the date set forth above, and
shall terminate at 6:00 PM on the thirtieth calendar day after such date, subject to earlier
termination as set forth below.
13. Notwithstanding the term of this Agreement, the license granted to the K-2 Parties
herein shall be revocable in whole or in part by the City upon written notice from the City to K-2
that a K-2 Party has failed to comply with any material provision of this Agreement if such
default is not cured within one day following delivery of notice of default. The revocation of the
license granted herein shall in no way prejudice any of the rights and remedies available to the
City at law or in equity. If the license granted herein is revolted, the K-2 Parties shall promptly
cease all due diligence at the Property and repair any damage done to the Property by the K-2
Parties, at K-2's sole cost and expense.
14. In the event either party hereto brings suit to enforce the terms of this Agreement
or on account of breach hereof, the party not prevailing in such suit shall pay any and all costs
and expenses incurred by the other party in such suit, including, without limitation, court costs
and attorneys' fees.
15. This Agreement sets forth the entire agreement of the parties with respect to the
subject matter hereof and supersedes all prior discussions, negotiations, understandings or
agreements relating thereto.
16. No alteration or variation of this Agreement shall be valid or binding unless made
in writing and signed by the parties hereto.
17. 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.
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Executed as of the date first above written.
K2 Pure Solutions Vernon, L.P. The City of Vernon
By its General Partner, K2 Vernon
GP, LLC
{ 1 I J
Name: No La Owd &1-4 1 Hilario Gonzales, Mayor Pro-Tem
Title: CIE 0
Attest:
By:
Name: By:
Title: Manuela Giron, City Cler
Approved as to F,
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EXHIBIT A
ACCESS AGREEMENT
K-2 PROP CO. LA, L.P. /
THE CITY OF VERNON
INSURANCE SCHEDULE
K-2 and/or its agents, consultants, contractors entering onto the Property shall provide proof of
insurance, including a standard certificate of insurance, in at least the following amounts and
coverage (combined single limit permitted):
Covera a and Limits
Hazards
Automobile Liability
Owned Automobiles
Hired Automobiles
Non -Owned
Automobiles
Workers' Compensation
Employers' Liability
Liability
Premises Operations
Elevators
(if applicable)
Independent
Contractors
Products - Completed
Operations
Contractual Liability
Umbrella Liability
General Liability
Professional Liability
Enviromnental Pollution
Bodily Injury
Each Pcrson Each Accident
$1,000,000 $1,000,000
$1,000,000 $1,000,000
$1,000,000 $1,000,000
$ Statutory
$1,000,000 per employer
Property Damage
Each Accident
$500,000
$500,000
$500,000
$2,000,000
$2,000,000
$1,000,000
$2,000,000
$2,000,000
$1,000,000
$2,000,000
$2,000,000
$1,000,000
$2,000,000
$2,000,000
$1,000,000
$2,000,000
$2,000,000
$1,000,000
S2,000,000
$2,000,000
$1,000,000
$2,000,000
$2,000,000
$1,000,000
$2,000,000
$2,000,000
$1,000,000
$5,000,000
$5,000,000
$5,000,000
The general liability policy shall contain the following special items which shall be noted on
or attached to the standard certificate of insurance:
I . An endorsement naming the City of Vernon, its officers, and employees as
additional insureds (or loss payees, as the case may be) under the policy.
2. An endorsement providing the City of Vernon thirty (30) days notice of
cancellation or material reduction of coverage.
3. An endorsement providing coverage for all operations under the City of Vernon
permit and specifying the activities covered.
4. A copy of your general and umbrella insurance policy declarations page.
5. Copy of schedule of forms of endorsements.
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