Resolution No. 2015-017*PLEASE REFER TO
RESOLUTION NO.2016-04 FINAL
DOCUMENTS (PDFs Received) FOR
3200 FRUITLAND (PECHINEY)
- FINAL ASSIGNMENT AND ASSUMPTION
- FINAL EDI AGREEMENT
- FINAL ADDED FACILITIES AGREEMENT
- FINAL JOINT CLOSING INSTRUCTIONS
- FINAL ESCROW AGREEMENT
- FINAL BUYER'S SETTLEMENT STATEMENT
- FINAL CITY -OWNER SETTLEMENT
STATEMENT
RESOLUTION NO. 2015-17
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION OF
A SECOND AMENDMENT TO STANDARD OFFER, AGREEMENT AND
ESCROW INSTRUCTIONS FOR THE PURCHASE OF REAL ESTATE
BY AND BETWEEN THE CITY OF VERNON AND PECHINEY CAST
PLATE, INC. FOR PROPERTY LOCATED AT 3200 FRUITLAND
AVENUE
WHEREAS, on March 22, 2006, the City Council of the City of
Vernon ("the City") adopted Resolution No. 8995 approving a Standard
Offer, Agreement and Escrow Instructions and Addendum (the "Agreement")
with Pechiney Cast Plate, Inc. ("Pechiney") for the purchase of
property located at 3200 Fruitland Avenue (the "Property"); and
WHEREAS, on May 3, 2006, the City Council of the City of
Vernon adopted Resolution No. 9030 approving a First Amendment to the
Standard Offer, Agreement and Escrow Instructions ("First Amendment")
with Pechiney for the purchase of the Property; and
WHEREAS, the City and Pechiney desire to amend the Agreement
and First Amendment to resolve disputes and disagreements that have
arisen between the City and Pechiney (collectively, the "Parties")
regarding the Agreement, including claims by each of the Parties that
the other has defaulted on its obligations under the 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), 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 Second Amendment to the Standard Offer, Agreement and
Escrow Instructions with Pechiney Cast Plate, Inc. ("the Amendment"),
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 Amendment 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 Amendment attached herein.
SECTION 6: The City Council of the City of Vernon hereby
directs the City Clerk, or the Deputy City Clerk, to send a fully
executed Amendment to Pechiney Cast Plate, Inc.
- 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 7th day of April, 2015.
ATTEST:
Ana cia
/ Deputy City Clerk
APPROVED AS TO FORM:
-P�--HemaLPAUeil, City Attorney
Name: W. Michael McCormick
Title: Mayor
- 3 -
STATE OF CALIFORNIA )
) ss
_COUNTY OF LOS ANGELES )
I Ana Sarcia -eity—eteTt�)/ Deputy City Clerk of the City
of Vernon, do hereby certify that the foregoing Resolution, being
Resolution No. 2015-17, 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, April 7, 2015, and thereafter was duly
signed by the Mayor or Mayor Pro-Tem of the City of Vernon.
Executed this 71 day of April, 2015, at Vernon, California.
(SEAL)
Ana4atr cia
/ Deputy. ity Clerk
- 4 -
Second Amendment to
Standard Offer, Agreement and Escrow Instructions
for Purchase of Real Estate
THIS SECOND AMENDMENT TO STANDARD OFFER, AGREEMENT AND
ESCROW INSTRUCTIONS FOR PURCHASE OF REAL ESTATE (this "Second
Amendment") is made and entered into as of April 7, 2015 (the "Effective Date"), by and
between the City of Vernon ("Buyer"), and Pechiney Cast Plate, Inc., a Delaware corporation
("Seller"). Buyer and Seller are each referred to herein as a "Party" and are collectively
referred to as the "Parties".
RECITALS
WHEREAS, the Parties are parties to that certain Standard Offer, Agreement and
Escrow Instructions for Purchase of Real Estate dated March 20, 2006 ("Original Agreement"),
with attached Addendum dated March 20, 2006 ("Addendum"), as amended by that First
Amendment to the same dated as of, June 15, 2006 ("First Amendment", together with the
Original Agreement and Addendum, collectively the "Original PSA", and together with this
Second Amendment, the "PSA");
WHEREAS, certain disputes and disagreements have arisen between the Parties
regarding the Original PSA, including claims by each Party that the other has defaulted on its
obligations under the Original PSA; and
WHEREAS, the Parties wish to resolve their disputes and disagreements by amending
the Original PSA as set forth in this Second Amendment. Capitalized terms used but not defined
herein shall have the meanings given to such terms in the Original PSA.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and as contemplated by the recitals hereinabove (which recitals are
incorporated into this Second Amendment by this reference and made a part hereof), Seller and
Buyer agree as follows:
1. Property.
1.1. Property to be Purchased by Buyer. Section 2.1 of the Original PSA is hereby
amended by defining the "Property" as follows: "approximately 633,083 square
feet of land generally depicted on Exhibit "A" attached hereto." Prior to the
Closing Date (as defined herein), Seller shall apply for and seek to obtain a lot
line adjustment ("LLA") as more fully described in Section 1.4 below. The legal
description set forth in the final, recorded LLA documents (the "LLA
Documents") shall become the legal description of the Property and the Retained
Property (as defined in Section 1.2 below) for all purposes.
089367.000006 602733312.40
1.2. Property to be Retained by Seller. With respect to the property depicted as the
"Retained Property" on Exhibit "A", it is hereby agreed that such Retained
Property is no longer part of the Property being conveyed to Buyer under the
PSA, and that Seller shall retain the same (and Seller may sell same to another
person or entity before or after the Closing Date). The Retained Property will
consist of approximately 552,831square feet of land, the legal description of
which shall also be established by the final, recorded LLA Documents and shall
become the legal description of the Retained Property for all purposes.
1.3. Union Pacific Railroad Land. The Property shall also include the Buyer UP Land
(as defined in Section 4.1 below), and the Retained Property shall also include the
Seller UP Land (as also defined in Section 4.1 below).
1.4. Lot Line Adjustment. - Seller has previously submitted to the City of Vernon
Public Works, Water and Development Service Department, formerly known as
the City of Vernon Community Services and Water Department (the "CWSD")
(as defined herein) an application for the LLA, which has been approved by the
CWSD. All of the LLA Documents have been approved by the CWSD and are
being held by Seller pending the execution of this Second Amendment. Promptly
after the Effective Date, Seller will record the LLA Documents. The recording
fees for the LLA Documents shall be advanced by Seller, and one-half (1/2) of the
cost thereof will be reimbursed by Buyer at the Closing. In addition, at the
Closing, one-half (1/2) of the cost of the survey obtained by Seller in connection
with the LLA will be reimbursed by Buyer.
2. Sewer Capacity Units: Storm Water Drainage.
2.1. Section 2.3 of the Original PSA is hereby amended to provide that the sewer
capacity water discharge units currently allocated to the Property (prior to the
effect of this Second Amendment) shall be divided as between Buyer and Seller
as follows: seven hundred forty (740) units shall be allocated to Buyer and two
hundred (200) units shall be retained by Seller. The sewer capacity water
discharge units allocable to Buyer shall be conveyed to Buyer on the Closing Date
at no additional cost or expense to Buyer and otherwise in accordance with
Section 2.3 of the PSA.
2.2. At Closing, Seller shall grant to Buyer an easement for the drainage of storm
water through the underground water pipes and related facilities which are
situated within the Retained Property and into a designated storm water outfall
which is situated within the Retained Property (identified as Stormwater Outfall
No. 8 in the Below -Grade Demolition Work Plan (as defined in Section 7.1
below)). The form of the easement agreement shall be as set forth in Exhibit "B"
attached hereto.
3. Purchase Price.
3.1. Section 3.1 of the Original PSA is hereby amended by reducing the Purchase
Price from $36,500,000 to $24,173,085 (including the cost of the Buyer UP Land
2
089367.000006 602733312.40
as set forth in Section 4 below). Buyer has previously deposited $26,200,000 into
Escrow, of which $25,600,000 has previously been released to Seller, subject to
the terms and conditions of the Original PSA, with the balance of $600,000 being
held in Escrow. Accordingly, Section 26.16(d) of the Original PSA is hereby
deleted.
3.2. The $600,000 which is presently held in Escrow, together with all interest which
has and will accrue thereon prior to the Closing Date, is hereinafter be referred to
as the "Remaining Deposit," and shall be returned to Buyer by the Escrow
Holder at the Closing.
3.3. As a result of the reduction in the Purchase Price set forth in Section 3.1, Seller
will owe Buyer the amount of $1,426,915. At the Closing, Seller will execute in
favor of Buyer an unsecured promissory note in the form attached hereto as
Exhibit "G" (the "Promissory Note").
4. UP Land.
4.1. Union Pacific Railroad ("UP") was the owner of certain land abutting the
Property and the Retained Property along Boyle Avenue, consisting of
approximately 11,149 square feet of land, as approximately depicted on Exhibit
"A" (the "UP Land"). Each of Buyer and Seller shall ultimately own a portion of
the UP Land with Buyer acquiring from Seller, on the Closing Date, that portion
identified as the `Buyer UP Land" on Exhibit "A" (which shall be included in
the Property after the LLA Documents have been recorded) and Seller acquiring
that portion identified as the "Seller UP Land" on Exhibit "A" (which shall be
included in the Retained Property after the LLA Documents have been recorded).
4.2. On or about May 21, 2014, Seller purchased the UP Land from UP for a purchase
price of $349,470 plus closing costs (including the cost of a title insurance binder)
and due diligence costs of approximately $11,500 for a total of $360,970. A
portion of the foregoing amount ($242,697, which is the cost of the UP Land
allocable to the Buyer UP Land) is included in the computation of the revised
Purchase Price as set forth in Section 3.1 above.
4.3. Prior to acquiring the UP Land, Seller conducted all due diligence that Seller
determined to be necessary with respect to the UP Land, including environmental
("Phase II") testing. Seller provided Buyer with a copy of the "Phase II"
environmental report. Seller has informed Buyer that it has remediated the UP
Land, at its expense, to the same extent that Seller has remediated the Property
pursuant to the remediation provisions in the Below -Grade Demolition Work Plan
(as defined below) and the Remediation Work Plan (as defined below). If Buyer
desires to conduct any further due diligence regarding the Buyer UP Land and/or
to do any additional remediation of Hazardous Substances on the Buyer UP Land
(beyond the obligations required of Seller under the Below -Grade Demolition
Work Plan and the Remediation Work Plan), Buyer may do so at its own expense.
The Buyer UP Land will be conveyed by Seller to Buyer in its "as is" condition,
without any representations or warranties whatsoever regarding the condition
089367.000006 602733312.40
thereof, or otherwise, by quitclaim deed, subject to Seller's continuing obligations
if any, with respect thereto under the Remediation Work Plan, the Below -Grade
Demolition Work Plan and the PSA.
5. Intentionally Omitted.
6. Conditions to Closing, Closing.
6.1. The closing date shall be June 11, 2015, (the "Closing Date"). The parties may
close earlier by mutual agreement. Any and all references in the Original PSA to
the term "Expected Closing Date" are hereby replaced with the term "Closing
Date".
6.2. Buyer's Conditions Precedent. The following are closing conditions for the
benefit of Buyer:
6.2.1. Conditions In Original PSA. Sections 9.1 (n). (o) and (p) of the Original
PSA remain conditions to closing. All other conditions to closing set forth
in Section 9.1 of the Original PSA have been satisfied;
6.2.2. LLA. The LLA Documents shall have been recorded.
6.2.3. Completion of Property Demolition Work and PCB Remediation Work.
The work described in the Below Grade Demolition Plan (as defined
herein) and the PCB remediation work described in the Remediation Work
Plan (as defined herein), as modified with the approval of the DTSC
and/or the EPA (and, if required under Section 7.2 below, the approval of
Buyer) shall have been completed in all material respects. The foregoing
condition shall be deemed satisfied unless at least five (5) Business Days
prior to the Closing Date, Buyer shall have delivered to Seller a written
notice (the "Completion Notice'� identifying that portion of the foregoing
work which Buyer contends has not been completed in all material
respects (the "Uncompleted Work"). Provided however, that the
"deemed satisfaction" of such condition shall not relieve Seller from any
liability to perform the Property Work as contemplated by Section 8.1
below. Buyer acknowledges AMEC has provided CWSD with a
completion report, which CWSD has approved. It is understood that the
Uncompleted Work is not intended to refer to immaterial discrepancies
between the work required under the Below Grade Demolition Plan and
the PCB remediation work described in the Remediation Work Plan to the
extent that such discrepancies are identified in the completion report.
The foregoing conditions are for the benefit of, and may be waived by Buyer.
Buyer will exercise commercially reasonable and good faith efforts to cause those
conditions within its reasonable control to be satisfied prior to the Closing Date.
6.3. Seller's Conditions Precedent.
benefit of Seller:
The following are closing conditions for the
089367.000006 602733312.40
6.3.1. Buyer Performance. The delivery of all documents and due performance
by Buyer of each and every undertaking and agreement to be performed
by Buyer under the PSA.
6.3.2. Warranties. Each representation and warranty of Buyer under the PSA
shall be true and correct in all material respects as of the Closing. Escrow
Holder shall assume that this condition has been satisfied unless
notification to the contrary in writing by any Party prior to the Closing.
6.3.3. Health Department Confirmation: Seller shall have received the written
confirmation from the City of Vernon Health and Environmental Control
Department, in a form and substance reasonably acceptable to Seller, that
it has no jurisdiction over the remediation of the Property or the Retained
Property (and that jurisdiction is presently held by the EPA and the
DTSC).
6.3.4. LLA. The LLA Documents shall have been recorded.
The foregoing conditions are for the benefit of, and may be waived by Seller.
Seller will exercise commercially reasonable and good faith efforts to cause those
conditions within its reasonable control to be satisfied prior to the Closing Date.
The conditions set forth in Sections 6.2 and 6.3 above are sometimes referred to
individually as a "Condition to Closing" and collectively as the "Conditions to
Closing". If any Conditions to Closing remain unsatisfied (and unwaived) by the Closing
Date, then the provisions of Section 11 of this Second Amendment shall apply.
6.4. The Parties agree that the condition set forth in Section 9.1(n) of the Original PSA
shall be deemed to refer only to a Material Change which occurs after the
Effective Date.
6.5. If and to the extent that Section 6.2.3 above is inconsistent with any other
provision of the PSA, the terms of Section 6.2.3 shall control. In this regard, (a)
the references to the Health Department in Sections 26.7(a), 26.7(b), 267(c).
26.7(d) and 26.17 of the Original PSA are deemed deleted (b) any and all
references in the Original PSA which provide that issuance of a Certificate of
Closure by the Health Department is required or shall evidence completion of the
Remediation Work are hereby deemed deleted and (c) Sections 26.7(a). 26.7 b(b)
and 26.17 of the Original PSA are hereby further modified to delete any reference
to timetables for performance of the Demolition Work or the Remediation Work.
However, for clarification, nothing in this Second Amendment is intended to
affect Seller's obligations under Section 26.7(dd)(i) or (ii) of the PSA, or the
Seller's obligations under Section26.7(d)(iiil of the PSA to provide a Title Policy
without any exception for mechanics or materialmen's liens (or including a
mechanics' lien endorsement).
089367.000006 602733312.40
6.6. Certain Covenants of Seller.
6.6.1. Seller agrees to use reasonable efforts to obtain the consent of the DTSC
and the EPA to permit Seller to provide "Implementation Reports" (as
defined in that certain Imminent and Substantial Endangerment and
Consent Order signed on June 29, 2010 by Seller and on July 6, 2010 by
the DTSC at three different stages for the Property, being first when the
work described in the Below -Grade Demolition Work Plan (as defined
herein) insofar as it relates to the Property, but excluding any PCB
remediation on the Property (the "Property Demolition Work") has been
completed (to address PCB remediation), second when all other Property
Remediation Work has been completed, other than groundwater
remediation, and third when the groundwater remediation (if any) has
been completed on the Property.
6.6.2. Seller will concurrently provide Buyer with a copy of any Implementation
Reports which are submitted to the DTSC and/or the EPA.
6.6.3. Seller will use reasonable efforts to obtain a "comfort letter" from the
DTSC and/or the EPA with respect to the status of the Property
Remediation Work as of the Closing Date, but the Closing Date shall not
be delayed if Seller is unable to do so by that date.
6.6.4. Seller will (both prior to and after the Closing Date) provide Buyer with
copies of all reports and other pertinent written documentation (including
results of any laboratory testing) with respect to the Property Demolition
Work and the Property Remediation Work.
6.6.5. The terms, conditions and obligations under this Section 6.7 (other than
the provisions of Section 6.7.3) shall survive the Closing.
7. Approvals.
7.1. Below -Grade Demolition Work Plan. Buyer confirms that in that certain letter
agreement between Seller and Buyer dated July 25, 2013 it approved (and for the
avoidance of doubt again hereby approves) that certain Below -Grade Demolition
Work Plan dated May 23, 2006, as last revised on August 31, 2012, subject only
to those supplemental conditions set forth on Exhibit "C" attached hereto (which
collectively shall constitute the approved "Below -Grade Demolition Work
Plan"). The work contemplated by the Below Grade Demolition Work Plan
(excluding any PCB remediation on the Property, which is part of the Property
Remediation Work defined below) is referred to herein as the "Property
Demolition Work."
7.2. Remediation Work Plan. Buyer hereby approves that certain Remedial Action
Plan dated June 28, 2012, as amended by an Addendum dated May 30, 2013
subject only to those supplemental conditions set forth on Exhibit "C" attached
hereto (which collectively shall constitute the approved "Remediation Work
Plan"). Any changes proposed by Seller to the Remediation Work Plan after the
6
089367.000006 602733312.40
Effective Date shall be subject to the written approval of the EPA and/or the
DTSC, and, if prior to the Closing Date and affecting the physical condition that
the Property is required to be in at Closing in order to be in compliance with the
Remediation Work Plan (as in effect on the Effective Date), the written approval
of Buyer. The obligations of the Seller and the activities contemplated to be
undertaken by Seller on the Property under the Remediation Work Plan (as in
effect on the Effective Date) are sometimes collectively referred to herein as the
"Property Remediation Work".
7.3. Restrictive Covenant. Buyer acknowledges and agrees that Section 7.6 of the
Remediation Work Plan contemplates the recordation of a restrictive covenant
against the Property to "prohibit residential development and use of ground water
from the first water bearing unit within the Property's perimeter". Buyer agrees
that Seller may, prior to or at Closing, record a restrictive covenant against the
Property to that effect in the form of Exhibit "F" attached hereto, and that after the
Closing Buyer will record such a restrictive covenant to that effect if and when
required by the DTSC and/or the EPA. Buyer hereby approves the draft of the
restrictive covenant in the form of Exhibit "F", which draft has been submitted by
Seller to the DTSC -and the EPA. Seller will keep Buyer apprised of
communications with the DTSC and the EPA which involve potential changes to
such draft and Buyer hereby consents in advance to any such changes provided
that the changes (a) do not materially and adversely affect the rights of any owner
or any occupant of the Property to develop same, and (b) do not further restrict the
permitted land use of the Property in any material respect, unless such changes
have also been approved by Buyer which approval will not be unreasonably
withheld. With respect to clause (a), it is understood and agreed that Buyer has
agreed, pursuant to Section 8.7 herein, to bear the costs of any engineering
controls (subject to the limitations set forth herein).
7.4. The terms, conditions and obligations under this Section 7 shall survive the
Closing.
8. Property Work.
8.1. Seller has commenced the Property Demolition Work and the Property
Remediation Work (collectively, the "Property Work' and Seller shall
diligently and continuously (subject to delays caused by events of force majeure)
perform the Property Work until completion and regulatory closure and in
accordance with the provisions of the Below Grade Demolition Work Plan and
the Remediation Work Plan, and after the Closing, subject to the provisions of the
Access Agreement.
8.2. If conditions are discovered on or within the Property by Seller during the course
of the Property Work which were not contemplated by the Below -Grade
Demolition Work Plan or the Remediation Work Plan, then Seller will promptly
advise Buyer of the same.
089367.000006 602733312.40
8.3. Seller is and shall continue to be, at its sole cost and expense, solely responsible
for remediation of Hazardous Substances at, on, under and about the Property
(including groundwater remediation) in accordance with the Remediation Work
Plan as it may be amended, and subject to the direction of the EPA and the DTSC.
It is understood and agreed that Buyer is not accepting or assuming any
obligations, liabilities or other responsibility with respect to the remediation of
any such Hazardous Substances. All Property Remediation Work, including
investigations, analysis, monitoring, remediation and reporting are sometimes
herein referred to as the "Seller Remediation Obligations." If additional
contamination beyond that which is contemplated to be remediated by Seller
under the Remediation Work Plan is discovered on or within the Property during
the course of the Property Remediation Work, Seller will remediate the same if
and to the extent required by the EPA and the DTSC (and the same shall become
a part of the Seller Remediation Obligations).
8.4. Buyer and Seller will confer and consult in good faith with respect to the work
required for Seller to satisfy the Seller Remediation Obligations. The placement
of all Remediation Facilities will not unreasonably interfere with the future
development and/or use of the Property. Buyer agrees that the locations which
are currently being used and/or planned for the Remediation Facilities on the
Property are currently acceptable to Buyer and do not interfere with Buyer's
currently intended development and/or use of the Property. After the Closing,
upon the reasonable request of Buyer, Seller will, relocate the Remediation
Facilities to other locations within the Property (including burying pipes and, to
the extent feasible, certain other Remediation Facilities upon Buyer's request)
provided that the new locations do not adversely affect the operation or
effectiveness of the Remediation Facilities (it being agreed that burying the pipes
will not adversely affect the operation or effectiveness of the Remediation
Facilities). Seller will pay the cost of the first such relocation but any subsequent
relocation (of the same Remediation Facilities) shall be paid by Buyer.
8.5. Because the remediation of the Retained Property could impact the timing or
scope of the remediation of the Property (for example, if obtaining regulatory
"closure" of the remediation work on the Property cannot be obtained
independently of obtaining regulatory closure" of the remediation work on the
Retained Property) if the Retained Property and the Property are not treated
separately for purposes, of regulatory closure, Seller agrees to diligently perform
the obligations regarding the remediation of the Retained Property as set forth in
the Remediation Work Plan, but it is understood and agreed that the completion of
such remediation work on the Retained Property is not a Condition to Closing.
Seller shall seek the approval of relevant governmental agencies to treat the
Property and the Retained Property separately for purposes of obtaining
regulatory "closure" (including Seller's attempt to secure the approval of the EPA
and the DTSC to allow separate Implementation Reports to be provided for the
Property and the Retained Property, as described in Section 6.7 above), and Buyer
shall reasonably cooperate with Seller in connection with the foregoing.
8
089367.000006 602733312.40
8.6. At Closing, Buyer will grant Seller a license to enter the Property to perform the
Seller Remediation Obligations, in the form of Exhibit "D" attached hereto (the
"Access Agreement'), which shall be recorded at Closing in the office of the Los
Angeles County Recorder.
8.7. Seller shall be solely responsible for the performance and payment of costs for the
Property Work, including without limitation the installation of any
SVE/bioventing equipment including tubes, piping and all ground water
monitoring wells (collectively, the "Remediation Facility"), any repairs thereto,
any mandated modifications and relocations thereto and thereof, the operation of
the same, the analysis of results with respect thereto, and reporting of the same to
the applicable governmental agencies. It is understood that the foregoing
obligation does not include the cost of installing any "engineering controls" (as
defined in Section 3.2.28 of ASTM E1527-13) which are not required by the
Remediation Work Plan (such as, but not limited to, vapor barriers beneath
buildings constructed on the Property) required by the DTSC, the EPA or any
other governmental agency, which shall be the responsibility of the Buyer
(provided such engineering controls are not later required solely as a result of an
amendment to the Remediation Work Plan that was initiated by Seller and which
has not been approved by Buyer). Without limitation, Sections 26.7(b) and
26.7 a of the Original PSA are hereby further modified to be consistent with
these terms.
8.8. As used herein, "force majeure" means the prevention, delay or stoppage of any
action of either Party resulting from strikes, lockouts, labor disputes, acts of God,
adverse weather conditions, inability to obtain labor or materials, governmental
restrictions, regulations or controls, judicial orders, enemy or hostile
governmental action, civil commotion, terrorist activities, fire or other casualty,
and other causes (except financial) beyond the reasonable control of the Party
obligated to perform such action. In addition, it shall be deemed to be an event of
force majeure (a) if during the course of the Property Remediation Work Seller
discovers that the contamination which it is obligated to remediate is more
extensive than was originally contemplated under the Below -Grade Demolition
Work Plan or the Remediation Work Plan and (b) if any agency of the City of
Vernon delays the processing of any applications or requests for approval or
consent to any action proposed to be taken by Seller. In all cases, a Party
claiming the need to extend its deadline for performance of an obligation which is
expressly made subject to force majeure extensions shall provide to the other
Party notice within ten (10) business days after the occurrence of the force
majeure event. The foregoing definition of "force majeure" supersedes the
definition of force majeure set forth in Section 26.17 of the Original PSA.
8.9. If Seller sells, leases, or otherwise disposes of any portion of the Retained
Property, it shall not be relieved from any obligation hereunder.
8.10. The terms, conditions and obligations under this Section 8 shall survive the
Closing.
089367.000006 602733312.40
9. Indemnities.
9.1. Section 26.706y) of the Original PSA is hereby deleted in its entirety. Buyer
shall have no duty whatsoever under the PSA to indemnify Seller for any matter,
circumstances or condition, but Buyer shall nevertheless remain liable for the
breach of any of Buyer's representations or warranties in the PSA (if any, and as
and to the extent provided in the PSA).
9.2. Seller hereby agrees, at its sole expense, to indemnify, defend, and hold harmless
Buyer for all losses, damages, costs, expenses, liabilities (including without
limitation strict liability), claims, obligations, settlement payments, penalties,
fines, assessments, citations, litigation, demands, defenses, judgments, suits,
proceedings or other expenses, (but excluding (x) lost profits or lost "opportunity
costs", including loss of any revenues from a potential leasing or sale of the
Property, (y) any damages which are not reasonably foreseeable as of the date
hereof) and (z) punitive or exemplary damages (and the right to recover any of the
damages described in clauses (x), (y) and (z) from Seller is expressly waived by
Buyer) including reasonable attorneys and consultant's fees and expenses
incurred or suffered by it, relating to, arising from or caused by Hazardous
Substances at, on, under and/or about the Property and/or the Retained Property,
including all such substances in soil, groundwater, vapor and all other media and
including the migration of Hazardous Substances from the Property or the
Retained Property to any other property (a) to the extent that Seller has failed or
fails to perform the Property Remediation Work and/or work described in the
Below -Grade Demolition Work pertaining to Hazardous Substances, or (b) in
addition to the conditions addressed by clause (a), to the extent of any Hazardous
Substances (whether known or unknown) attributable to Seller's operations on the
Property or the Retained Property. To the extent not otherwise covered under
clauses (a) or (b) above, Seller's indemnity obligations also include (c) paying or
reimbursing Buyer for the cost of any further remediation of the Property
(including any required investigation and/or monitoring), resulting from any
claims by the government which require investigation, monitoring, clean up or
remediation of Hazardous Substances in, on, under or about the Property
(including groundwater beneath the Property) and (d) paying or reimbursing
Buyer for the cost of any further remediation of the Property, or any remediation
of the property of any third party (including any required investigation and/or
monitoring), resulting from any claims by a third party in relation to events or
conditions described under clause (a) or (b) or (c) above, including that
Hazardous Substances have migrated from the Property to the property of such
third party. For the purposes of clause (c), a "government" claim does not include
the claim of the City of Vernon or any of its agencies and must not have been
initiated at the request of Buyer or as a result of any actions of Buyer if and to the
extent the same seeks to impose a standard of remediation that is greater than the
standard imposed by the Remediation Work Plan. Notwithstanding the foregoing,
Seller's indemnity obligations under clause (c) above do not apply if the
government claim results from a change in use or proposed change in use of the
Property or any portion thereof (from industrial to some other use not permitted
by the restrictive covenant referenced in Section 7.3 above). Further, the
10
089367.000006 602733312.40
foregoing indemnifications shall specifically exclude the initial release of any
Hazardous Substances after the Closing Date, including Hazardous Substances
which migrate onto the Property after the Closing Date, from any property except
the Retained Property (and as to the Retained Property, excluding migration of
Hazardous Substances first introduced to the Retained Property after the Closing
by anyone other than Seller).
9.3. It shall be a Condition of Closing for Buyer's benefit that the Seller's obligations
under Section 9.2 be guaranteed by Kennecott Holdings Corporation (the
"Guarantor") for a period of ten (10) years after the Closing, at which time
Pechiney's obligations under Section 9.2 shall likewise expire except to the extent
of any action then pending in relation to the obligations under Section 9.2. The
Guaranty shall be in the form of Exhibit "H" attached hereto.
9.4. The obligations under this Section 9 shall survive the Closing and shall run to the
benefit of and be binding upon each party's successors and assigns.
10. Other Amendments.
10.1. Title Company. The Title Company shall hereafter be First American Title
Insurance Company (Attn: Skip Santy, P: (858) 410-2155, F: (619) 330-2564, E-
mail: ssanty@firstam.com).
10.2. Escrow Holder. The Escrow Holder shall hereafter be First American Title
Insurance Company (Attn: Janine Hudson, P: (858) 410-5767, F: (877) 478-3006,
E-mail: JaHudsonOffiirstam.com).
10.3. Escrow Instructions. Concurrently with the execution of this Agreement, the
Parties shall execute escrow instructions substantially in the form of Exhibit "E"
attached hereto, which will transfer the existing escrow and title files (and the
Remaining Deposit) to the new Escrow Holder and Title Company. Any escrow
or title cancellation charges shall be split equally by the Parties.
10.4. Notices. From and after the Effective Date, all notices under the PSA shall be
sent to the following addresses:
Buyer
City of Vernon, California
4305 Santa Fe Avenue
Vernon, CA 90058
Attn: City Administrator
F: 323.826.1491
e: mwhitworth&i.vernon.ca.us
Cony to:
City of Vernon, California
4305 Santa Fe Avenue
Vernon, CA 90058
11
089367.000006 602733312.40
Attn: Hema Patel, Esq.; City Attorney
F: 323.826.1491
e: hpatelu,ci.vernon.ca.us
City of Vernon, California
4305 Santa Fe Avenue
Vernon, CA 90058
Attn: Mr. Alex Kung
F: 323.826.1491
e: akung_@ci.vemon.ca.us
DLA Piper LLP (US)
550 S. Hope Street
Suite 2300
Los Angeles, CA 90071
Attn: Michael Hamilton, Esq.
P: 213.330.7731
F: 213.330.7536
E: michael.hamilton@dlapiper.com
Seller
Pechiney Cast Plate Inc.
4700 Daybreak Parkway
South Jordan, Utah 84095
Attention: Cheree Finan
Copy to:
Baker Hostetler LLP
11601 Wilshire Boulevard
Suite 1400
Los Angeles, CA 90025-7120
Attn: Bruce Greene, Esq.
P: 310.442.8834
F: 310.820.8859
E: bgreene@bakerlaw.com
11. Failure of Conditions to Closing. If, for any reason other than a breach of the PSA by a
Party, all Conditions to Closing have not been satisfied (or waived in writing) prior to the
Closing Date then, except as set forth below, the PSA shall be deemed terminated. In
such event, Seller shall refund to Buyer the sum of $25,600,000, the Remaining Deposit
(less any escrow or title cancellation charges) shall be returned to Buyer, Buyer shall
execute a quitclaim deed to the Property in favor of Seller (which Seller shall record) and
neither Party shall have any further rights or obligations under the PSA (except for any
obligations of the Parties which survive the termination of the PSA, including the
indemnification obligations of Buyer relating to inspections of the Property, which
obligations shall survive the termination of the PSA). If the Parties proceed to the
Closing then all Conditions to Closing shall be deemed satisfied but the foregoing is not
12
069367.000006 602733312.40
intended to nor shall it relieve either Parry from liability for any breach of the PSA which
occurs prior to or after the Closing and Seller shall not be relieved of its obligations to
complete the Property Work.. Notwithstanding anything herein to the contrary, if the
Condition to Closing which has not been satisfied is the condition described in Section
6.2.3, then the following shall apply: Buyer shall have the option to either terminate the
PSA, as set forth above, or to require Seller to complete the Uncompleted Work. Buyer
shall make its election in the Completion Notice, and if Buyer fails to elect to terminate
the PSA, then Buyer shall be deemed to have elected to have Seller complete the
Uncompleted Work. In the event that Buyer elects (or is deemed to have elected) to have
Seller complete the Uncompleted Work, then notwithstanding the satisfaction of such
condition, Seller shall be obligated to complete the Uncompleted Work, and if necessary,
the Closing Date shall be extended for a reasonable time, not to exceed ninety (90) days
to enable Seller to complete the Uncompleted Work. If Buyer elects (or is deemed to
have elected) to have Seller complete the Uncompleted Work, and Seller has not
completed the Uncompleted Work within such ninety (90) day period, then Buyer may,
by notice to Seller within five (5) days after said ninety (90) day period has expired, elect
to terminate the PSA (for the failure of a Condition to Closing). If Buyer does not timely
elect to terminate the PSA, Seller shall complete the Uncompleted Work as diligently as
possible. Notwithstanding the foregoing, Buyer may elect by not less than five (5)
Business Days' notice to Seller, to close the transaction on or at any time after the
Closing Date, provided that Buyer will afford Seller access to the Property after the
Closing to complete the Uncompleted Work, subject to the provisions of the Access
Agreement (which shall be amended to include the foregoing). Nothing herein is
intended to affect the Buyer's "self-help" rights described in Section 26.17 of the
Original PSA and it is agreed that after the Closing, the term "Remaining Seller's Work"
shall include the Uncompleted Work.
12. Releases.
Effective on the Closing Date (if, and only if, the Closing occurs, unless the failure to
close results from the breach of a Party, in which case the releases given by the breaching
Parry (as determined by a court or arbitrator) shall become effective but the releases
given by the non -breaching Party (as determined by a court or arbitrator) shall not
become effective), the following releases shall become effective:
12.1. RELEASE BY SELLER: Except for the covenants and obligations created under
the PSA which survive the Closing, the Stormwater Easement Agreement, the
Access Agreement and the restrictive covenant described in Section 7.3 above, (as
each of the same may have been amended, modified and/or supplemented), Seller
hereby releases and forever discharges Buyer, and all of Buyer's officers,
directors, employees, and the successors, heirs, legal representative and assigns of
each of the foregoing,. from any and all manner of claims, disputes, actions,
liabilities, causes of actions, suits, set -offs, contracts, counterclaims, demands or
damages, whatsoever, based on any legal or equitable theory, right of action or
otherwise (whether arising under federal, state, or local law, regulation or
common law), foreseen or unforeseen, known or unknown, matured or
unmatured, accrued or not accrued, which Seller ever had, or now has or may
13
089367.000006 602733312.40
have, regarding the performance by Buyer of its obligations under the PSA and
the sale of the Property by Seller to Buyer.
12.2. RELEASE BY BUYER: Except for the covenants and obligations created under
the PSA which survive the Closing, the Promissory Note, the Stormwater
Easement Agreement, - Access Agreement, the Guaranty and the restrictive
covenant described in Section 7.3 above (as each of the same may have been
amended, modified and/or supplemented), Buyer hereby releases and forever
discharges Seller and Seller's officers, directors, shareholders, affiliates, parents
and employees, and the successors, heirs, legal representatives and assigns each of
the foregoing, from any and all manner. of claims, disputes, actions, liabilities,
causes of actions, suits, set -offs, contracts, counterclaims, demands, or damages,
whatsoever, based on any legal or equitable theory, right of action or otherwise
(whether arising under'federal, state, or local law, regulation, or common law),
foreseen or unforeseen, known or unknown, matured or unmatured, accrued or not
accrued, which Buyer has ever had, or now has or may have, regarding the
performance by Seller of its obligations under the PSA and the sale of the
Property by Seller to Buyer.
13. Miscellaneous.
13.1. The use herein of the word "including" shall be construed to mean "including
without limitation."
13.2. Except to the extent expressly modified by this Second Amendment, the Original
PSA is ratified and remains in full force and effect. To the extent of any
inconsistency between this Second Amendment and the Original PSA, the terms
and conditions of this Second Amendment shall control.
13.3. This Second Amendment may be executed in multiple counterparts, all of which,
taken together, shall constitute one document. This Second Amendment shall be
deemed effective against a Party upon receipt by the other Party (or its counsel) of
a counterpart executed by facsimile or electronic mail.
[signatures on next page]
14
089367.000006 602733312.40
IN WITNESS WHEREOF, the Parties have caused their duly authorized representatives
to execute this Second Amendment as of the Effective Date.
Buyer:
City of Vernon
By:
Name:
Title:
Approved as to form:
DLA Piper LLP (US), Special Counsel to Buyer
Seller:
Pechiney Cast Plate, Inc.,
a Delaware corporation
By:
Name: William Adams
Title: President
S-1
089367.000006 602733312.40
Exhibit A
Plot of Property, Retained Property, Seller UP Land, Buyer UP Land and Additional Property
[attached hereto]
Exhibit A
089367.000006 602733312.40
Exhibit B
Stormwater Drainage Easement
[attached hereto]
Exhibit B
089367.000006 602733312.40
Recorded at the Request of
And When Recorded Return to:
STORM WATER DRAINAGE EASEMENT
THIS STORM WATER DRAINAGE EASEMENT ("Agreement") is made as of
, 2015, by PECHINEY CAST PLATE, INC., a Delaware corporation
("Grantor") and the CITY OF VERNON ("Grantee").
RECITALS
A. Grantee is the owner of a parcel of land (the "Benefited Property") located in the City of
Vernon, County of Los Angeles, California, as more particularly described in Exhibit A
hereto.
B. Grantor is the owner of a parcel of land (the "Burdened Property") located in the City of
Vernon, County of Los Angeles, California, as more particularly described in Exhibit B
hereto.
C. Concurrently herewith, Grantee has purchased the Benefited Property from Grantor
pursuant to that certain Standard Offer, Agreement and Escrow Instructions for Purchase of
Real Estate dated March 20, 2006 between Grantor, as seller, and Grantee, as buyer (as
the same has been amended, the "PSA").
D. As a condition to the sale of the Benefited Property by Grantor to Grantee, the PSA requires
that Grantor grant to Grantee an easement for the drainage of storm water from the
Benefited Property through the underground water pipes and related facilities (as they may
be improved, modified or replaced, the "Storm Water Management Facilities") which are
situated within the Burdened Property and into a designated storm water outfall which is
situated within the Burdened Property as depicted on Exhibit C attached hereto, (the
"Drainage Easement Area").
E. As used herein, the Benefited Property and the Burdened Property are referred to herein as
the "Properties". Grantee and Grantor are each referred to herein as a "Parcel Owner"
and together as the "Parcel Owners".
F. The parties intend that the easements herein granted shall run with the land.
089367.000006 603258358.4
AGREEMENT
NOW THEREFORE, in consideration of the premises and the mutual covenants set forth
herein, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound, covenant and agree as
follows:
Grant of Easements.
a. Easement for Storm Water Drainage. Grantor grants to Grantee, for the benefit
of the Benefited Property, a permanent, non-exclusive easement for the purpose of
the drainage and passage of storm water from the Benefited Property under and
through the Drainage Easement Area of the Burdened Property using the Storm
Water Management Facilities situated within the Burdened Property and ending at
the storm water outfall which is situated within the Burdened Property (and which
is identified on Exhibit C as "Storm Water Outfall No. 8"). For clarification, no
rights of surface drainage across the Burdened Property are granted to Grantee
hereby.
b. Easement for Access. Grantor also grants to Grantee and Grantee's employees,
agents and contractors,.the permanent, non-exclusive right and privilege to enter
the Burdened Property at reasonable times upon reasonable advance notice
(except in the event of an emergency) to the extent reasonably required by
Grantee in order to exercise its rights pursuant to Section 4 hereof, Grantee grants
to Grantor and Grantor's employees, agents and contractors the permanent, non-
exclusive right and privilege to enter the Benefitted Property at reasonable times
upon reasonable advance notice (except in the event of an emergency) to the
extent reasonably required by Grantor in order to exercise its rights pursuant to
Section 4 hereof. Provided, however, that (a) before either Grantor or Grantee (or
their employees, agents or contractors) may enter upon the Property of the other,
they shall have obtained liability insurance with limits and terms reasonable
acceptable to the other Parcel Owner insuring them (and also insuring the other
Parcel Owner) against any damage to persons or property resulting from such
access or work performed on the Property of the other (in the event of a claim, the
insuring party shall pay any deductible) (b) the Property of the other shall be kept
free and clear of all mechanics and materialmen's liens resulting from such work
and (c) in entering upon the other Parcel Owner's property and in the exercise of
its rights pursuant to this Agreement, a Parcel Owner shall comply with all
applicable laws, ordinances and governmental regulations.
c. Limitation. Neither party shall have the right to overburden the Storm Water
Management Facilities, and each party shall be required to comply with all
applicable laws, ordinances and governmental regulations which control or limit the
amount of storm water which such party may cause to flow into Storm Water
Outfall No. 8. If either party is charged by any governmental authority for any such
excess usage by the other party, such other party shall pay or reimburse the party
who was charged for such amounts promptly upon demand. Any amount which is
not paid within thirty (30) days after demand shall bear interest at the rate of ten
percent (10%) per annum
089367.000006 603268358.4 2
d. Matters of Record, The grants of the easements hereunder are subject to all
matters of record existing as of the date hereof, and shall be subordinate to any
future mortgages, deeds of trust, utility easements or covenants, conditions and
restrictions which may hereafter be recorded against the Properties; provided that
the foregoing utility easements or covenants, conditions and restrictions do not
materially and adversely affect the rights of the Grantee hereunder.
2. Maintenance of Drainage Easement Area.
a. The Storm Water Management Facilities on the respective Properties shall be
maintained in good condition and repair by the respective Parcel Owners at their
sole cost and expense, including keeping drains clear of debris and other
obstructions and replacing filters. All such maintenance and repair shall be
performed in accordance with BMP's (best management practices) and all
applicable laws, rules and governmental regulations.
b. Notwithstanding the provisions of Section 2(al above, any costs or expenses
incurred by a Parcel Owner which result from the negligence or failure of the other
Parcel Owner to properly maintain or repair any Storm Water Management
Facilities located within such other Parcel Owner's Property, shall be reimbursed
by such other Parcel Owner to the Parcel Owner incurring the cost or expense
within thirty (30) days after demand (which demand shall be accompanied by an
invoice and a description of the maintenance or repair work which was performed).
Any amount which is not paid within such thirty (30) day period shall bear interest
at the rate of ten percent (10%) per annum.
3. No Interference. Neither party shall at any time, intentionally do or permit any act or
event or circumstance which would result in the free flow of storm water through the
Drainage Easement Area or which would violate or materially interfere with the rights of
the other party under this Agreement.
4. Performance of a Parcel Owner's Obligations by the Other Parcel Owner. In the
event either Parcel Owner fails to perform any of its repair or maintenance obligations
under this Agreement within thirty (30) days of notice by the other Parcel Owner, the
Parcel Owner giving such notice may, but is not required to, perform any such repair or
maintenance obligations. Except as may be necessary to prevent imminent damage or
injury on an emergency basis, a Parcel Owner shall not commence performance of any
unperformed obligation of the other Parcel Owner as long as, within such thirty (30) day
period, the other Parcel Owner shall have commenced curative action and thereafter shall
prosecute such curative action diligently to completion. If a Parcel Owner performs the
repair or maintenance obligations of the other Parcel Owner hereunder, the other Parcel
Owner shall reimburse the Parcel Owner performing such obligations for all reasonable
amounts expended by such Parcel Owner pursuant to this Section 4 within thirty (30) days
after demand (which demand shall be accompanied by an invoice and a description of the
work which was performed). Any amount which is not paid within such thirty (30) day
period shall bear interest at the rate of ten percent (10%) per annum.
5. Indemnity. Each Parcel Owner (as "Indemnitor") shall indemnify, defend, and hold
harmless the other Parcel Owner and its officers, directors, shareholders, members,
managers, employees, agents, attorneys, and their respective successors and assigns
089367.000006 603258358.4 3
(individually, the "Indemnites" or collectively, the "Indemnitees") from and against any
and all losses, claims, actions, damages, liabilities, penalties, fines, or expenses, of
whatsoever nature, including, without limitation, reasonable attorneys' fees and costs
(collectively, "Claims") incurred by the Indemnitee or the indemnitees which result from
the breach of any provision of this Agreement by the Indemnitor, except to the extent any
such Claims result from the wrongful acts or omissions or the gross negligence or willful
misconduct of the Indemnitee or the Indemnitees.
6. Term.
a. Term: This Agreement shall be effective as of the date first above written and shall
continue in effect in perpetuity unless and until terminated as hereafter provided. A
copy of this Agreement shall promptly be recorded by Grantee, at Grantee's
expense, in the office of the Los Angeles County, California Recorder.
b. Termination or Amendment of Agreement: This Agreement may be terminated or
amended only by the mutual written consent of all of the then -record Parcel
Owners, or any portion thereof (in which case such termination or amendment
shall be effective only as to such portion). A copy of any such amendment or
termination, shall promptly be recorded in the office of the Los Angeles County,
California Recorder.
7. Miscellaneous.
a. Covenants Run with Land: The covenants created in this Agreement are
covenants "running with the land" pursuant to California Civil Code Section 1460,
et. seq.
b. Mortgagee Protection: The breach of any provision of this Agreement shall not
defeat or render invalid or unenforceable the lien of any bona fide mortgage or
deed of trust made in good faith and for value on the interest of any of the Parcel
Owners from a third party lender, but all other provisions of this Agreement shall,
except as otherwise set forth herein, be binding and effective against any Parcel
Owner whose title is acquired by foreclosure, trustee's sale or otherwise.
c. Notices: Any notice required or permitted to be given hereunder shall be
effective only if given in writing, sent by certified mail (return receipt requested),
overnight delivery service, or delivered personally, and addressed as set forth
herein. Notices shall be deemed to have been given on the date of receipt or in
the case of notices sent by certified mail, on the third business day after mailing.
Grantee:
City of Vernon, California
4305 Santa Fe Avenue
Vernon, CA 90058
Attn: City Administrator
With a copy to: DLA Piper LLP (US)
550 S. Hope Street, Suite 2300
089367.00OOD6 603268358.4 4
Los Angeles, CA 90071
Attention: Michael Hamilton, Esq.
Grantor: Pechiney Cast Plate, Inc.
4700 Daybreak Parkway
South Jordan, Utah 84095
Attention: Cheree Finan
With a copy to: Baker Hostetler LLP
11601 Wilshire Boulevard, Suite 1400
Los Angeles, CA 90025
Attention: Bruce R. Greene, Esq.
d. Inurement: Governing Law: This Agreement shall inure to the benefit of and be
binding upon the parties and their respective legal representatives, successors,
and assigns. This Agreement shall be governed by the laws of the State of
California.
e. Attorneys' Fees. If either party institutes legal proceedings against the other with
respect to this Agreement, the nonprevailing party shall pay to the prevailing
party an amount equal to all reasonable attorneys' fees and disbursements and
all other costs and expenses incurred by the prevailing party in connection
therewith.
f. Exhibits: The following documents are attached hereto and incorporated herein by
reference:
(1) Exhibit A —Legal Description of Benefited Property
(ii) Exhibit B—Legal Description of Burdened Property
(iii) Exhibit C—Depiction of Drainage Easement Area
g. Severability: Invalidation of any one of the provisions of this Agreement by
judgment or court order will not affect any of the other provisions, which will remain
in full force and effect.
h. Section Headings: Section headings are included for reference purposes only and
do not constitute a part of this Agreement.
I. Counterparts: For convenience, the signatures of each of the parties may be
executed and acknowledged on separate counterpart pages which, when attached
to this Agreement, shall constitute one complete Agreement.
j. Estoppel Certificates: Each Parcel Owner shall deliver to the other Parcel Owner,
within fifteen (15) business days after receipt of a request, a commercially
reasonable estoppel certificate which confirms the existence of this Agreement,
whether or not this Agreement has been amended, whether either party is in
default hereunder, and any other matters reasonably requested by the Parcel
Owner who requests such estoppel certificate. Such estoppel certificate may be
relied on by any purchaser or tenant, or potential purchaser or tenant, or any
089367.000006 603258358.4 5
lender or potential lender. The failure or refusal of a party to timely deliver an
estoppel certificate shall be a default under this Agreement, and shall also be
deemed to be an acknowledgement by such Parcel Owner that the requesting
Parcel Owner is not in default under this Agreement, and that any factual
representations made by the requesting Parcel Owner to such purchaser, tenant or
lender (or potential purchaser, tenant or lender) are true and correct absent a
showing of bad faith.
[SIGNATURES ON FOLLOWING PAGES]
089367.000005 603258358.4 6
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have executed
this Agreement as of the date first written above.
GRANTOR:
Pechiney Cast Plate, Inc.,
a Delaware corporation
By:
William Adams
President
GRANTEE:
City of Vernon
By:
Name:
Title:
Approved as to form:
DLA Piper LLP (US), Special Counsel to Buyer
089367.000006 603258358.4
ACKNOWLEDGMENT
A Notary Public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
ss.
COUNTY OF )
On 20_ before me, , personally
appeared who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s),
or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
NOTARY PUBLIC
[SEAL]
089367.000008 603258358.4 8
ACKNOWLEDGMENT
A Notary Public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
ss.
COUNTY OF )
On 20_ before me, personally
appeared , who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s),
or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
NOTARY PUBLIC
[SEAL]
089367.000006 603258358.4 g
EXHIBIT A
LEGAL DESCRIPTION OF BENEFITED PROPERTY
[to be attached]
089367.000006 603258358.4
EXHIBIT B
LEGAL DESCRIPTION OF BURDENED PROPERTY
[to be attached]
089367.000006 603258358.4
EXHIBIT C
DEPICTION OF THE DRAINAGE EASEMENT AREA
[to be attached]
089367.000006 603258358.4
Exhibit C
Supplemental Conditions to Below -Grade Demolition Work Plan
Seller shall not re -use as fill material, or use for any other purpose at the Property, any excavated
concrete containing PCBs with concentrations greater than 1 mg/kg (that is, "Restricted Use
fill") on Phases I, II and VI of the Property (as such phases are defined in Sect. 7.1 of the Below -
Grade Demolition Work Plan) or on any other portion of the Property. To clarify, Seller shall
only use clean fill (that is, "Unrestricted Use fill", being fill with PCB concentrations of 1 mg/kg
or less) to backfill excavation areas on Phases I, II and VI of the Property. Further,
notwithstanding Section 7.1 of the Remediafion Work Plan, PCB -impacted concrete which is re-
used at the Property as backfill may not be placed in the area of Building 104.
Exhibit C
089367.000006 602733312.40
Exhibit D
Access Agreement
[attached hereto]
Exhibit D
089367.000008 602733312.40
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Bruce R. Greene
Baker Hostetler LLP
11601 Wilshire Boulevard
Suite 1400
Los Angeles, CA 90025-7120
ACCESS LICENSE AGREEMENT
THIS ACCESS LICENSE AGREEMENT ("Agreement') is made as of
2015 by and between CITY OF VERNON ("Vernon'), and PECHINEY CAST
PLATE, INC., a Delaware corporation ("Pechiney').
RECITALS
A. On or about 2015, Vernon purchased the real property described
on Exhibit "A" attached hereto (the "Pro a ") from Pechiney. Pechiney is the owner of the real
property described in Exhibit "B" attached hereto (the "Retained Properly").
B. The purchase and sale was made pursuant to that certain Standard Offer, Agreement
and Escrow Instructions for Purchase of Real Estate dated March 20, 2006 between Pechiney, as
seller, and Vernon, as buyer (as amended, the "PSA").
C. Pursuant to the PSA, the parties agreed that Pechiney was obligated to continue
certain Remediation Activities (as defined herein) on the Property after the closing date for the
purchase and sale, and that upon closing of the purchase and sale transaction, Pechiney and Vernon
would enter into an agreement which would set forth the terms and conditions upon which Pechiney
would be entitled to enter upon the Property to perform such Remediation Activities.
NOW, THEREFORE, in consideration of the premises and the mutual covenants set
forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. Grant of License. Vernon hereby grants to Pechiney a revocable, nonexclusive
license to enter the Property on the terms and conditions set forth herein and solely for purposes of
performing the Remediation Activities, and for the period commencing on the date of this
Agreement and expiring on the date that the Remediation Activities have been completed as set forth
in the PSA, or the earlier termination hereof (the "License Term").
089367.000006 602741975.8
(a) Pechiney shall have the right to enter upon those portions of the
Property reasonably necessary to undertake the Remediation Activities, subject to the rights of
tenants and occupants and any restrictions under applicable law as to when work in the nature of the
Remediation Activities can be performed. Pechiney's rights hereunder may be exercised by any
employee, contractor or other representative engaged by Pechiney, provided that Pechiney shall be
responsible for the acts or omissions of any of such Persons (as used herein, the term "Persons"
includes an individual or an entity, as the case may be).
(b) As long as no Person other than Vernon is in possession of or is
conducting business from the Property, no advance notice need be given by Pechiney to Vernon in
connection with any entry onto the Property to perform any Remediation Activities. If any Person
other than Vernon is in possession of or is conducting business from the Property, and Pechiney is
given notice of such fact, which notice shall set forth such Person's identity and contact information,
Pechiney shall give reasonable advance notice (not less than two (2) business days in advance, except
in the event of an emergency, and which may be telephonic or by e-mail) to such Person. Vernon
may have its representatives present to inspect the Remediation Activities. Such representatives
shall comply with any reasonable requirements (including safety requirements) of Pechiney and will
not materially interfere with the Remediation Activities. Without the prior consent of Vernon or any
tenant of the Property, Pechiney shall not enter into any buildings on the Property, and in all events
Pechiney shall use reasonable efforts to avoid interfering with the activities on the Property of
Vernon or any tenant, including development or construction activities.
(c) Pechiney shall also have the right to enter upon the Property (including
utilizing the street access from Fruitland Avenue) so as to access the Retained Property for the
purpose of performing the Remediation Activities on the Retained Property, to perform the Seller's
Work (as defined in the PSA) on the Retained Property, and to create access to the Retained Property
from Boyle Avenue, provided that Pechiney's access rights do not materially interfere with any
development activities being performed on the Property. Vernon reserves the right to limit the access
across the Property to specific areas, including designated entrances and exits and driving circulation
patterns on the Property provided that such limitations are reasonable. The right created under this
Section 1 c shall terminate when Pechiney has unimpeded physical access to the Retained Property
directly from Boyle Avenue (which includes the completion of any necessary curb cuts, and the
construction of temporary or final ramps, driveways and other improvements which would allow
access for trucks and other construction -related equipment from Boyle Avenue to the Retained
Property and which also includes the completion of any facilities required by the California Public
Utilities Commission and Union Pacific Railroad Company).
2. Scooe of Remediation Activities.
(a) Pechiney shall have the right to enter upon the Property pursuant to
this Agreement to perform the work described in that certain Remedial Action Plan dated June 28,
2012, as amended by an Addendum dated May 30, 2013 (as it may be amended in accordance with
the PSA, the "RAP") which was approved by the Department of Toxic Substances Control
("DTSC") and the United States Environmental Protection Agency ("EPA"), and the other Seller
Remediation Obligations (as defined in the PSA) (collectively, the "Remediation Activities").
2
089367.000006 602741975.8 _
(b) Without limitation, Remediation Activities includes the installation,
monitoring and replacement of any equipment or facilities required for Pechiney to perform its
obligations under the RAP (collectively, the "Remediation Facilities") or as otherwise required by
any applicable federal or state governmental agency or authority (including SVE/bioventing
equipment, pipes, tubing, and groundwater monitoring wells), subject to the terms and conditions of
the PSA.
(c) Pechiney and Vernon will confer and consult in good faith with respect
to the Remediation Activities. The placement of any new Remediation Facilities which are installed
after the date of this Agreement will not unreasonably interfere with the development, construction,
operation and/or use of the Property. Upon the reasonable request of Vernon, Pechiney will, relocate
the Remediation Facilities to other locations within the Property (including burying some of the
Remediation Facilities upon Vernon's request), provided that the new locations do not adversely
affect the operation or effectiveness of the Remediation Facilities. Pechiney will pay the cost of the
first such relocation but any subsequent relation (ofthe same Remediation Facilities) shall be paid by
Vernon.
(d) All costs of installation, monitoring, repair, maintenance, relocation
(except as provided in Section 2(c) above) and replacement of the Remediation Facilities shall be
borne by Pechiney. Pechiney will not permit any mechanics', materialmen's or other similar liens or
claims to stand against the Propertyfor labor or material furnished in connection with any
Remediation Activities performed by or on behalf of Pechiney. Upon reasonable and timely notice
of any such lien or claim delivered to Pechiney by Vernon, Pechiney may at its sole expense bond
and contest the validity and the amount of such lien, but if a judgment is rendered Pechiney will
promptly pay the amount of the judgment or otherwise satisfy the judgment so that the lien is
released.
(e) Vernon shall acquire no ownership rights or interest in any of the
Remediation Facilities.
(f) Upon expiration of the License Term, Pechiney shall at its expense
remove from the Property, or decommission all Remediation Facilities, shall repair any damage to
the Property caused by such removal, and shall landscape or pave the area of the Property from
which the Remediation Facilities were removed to be consistent with the then -current condition of
the immediately surrounding area. Notwithstanding the foregoing, any Remediation Facilities which
the DTSC and/or the EPA requires to remain on the Property (such as for continued monitoring
purposes) shall remain on the Property until the DTSC and/or the EPA (as applicable) allows their
removal, and the License Term shall continue until such removal is allowed.
(g) The Remediation Activities shall be performed in accordance with the
provisions in the RAP or as otherwise approved in writing by the DTSC and/or the EPA. Any test
results (including "split" samples of any soil or underground testing), monitoring data, analytical and
other reports and other information, including any material communications which are prepared by or
on behalf of Pechiney in connection with the Remediation Activities which are submitted to the EPA
and/or the DTSC shall be concurrently submitted to Vernon. Pechiney shall give reasonable advance
089367.000006 602741975.8
notice to Vernon to enable a representative of Vernon to attend any meetings with the EPA and/or
the DTSC relating to the Remediation Activities.
(h) Pechiney shall provide Vernon with copies of all reports relating to the
Remediation Activities being performed on the Property which are prepared for the DTSC and/or the
EPA.
(i) The provisions of Section 7.3 of the Second Amendment to the PSA
(regarding the recordation of a Restrictive Covenant) are incorporated herein by reference (references
to "Buyer" therein shall mean "Vernon" and references to "Seller" therein shall mean "Pechiney").
3. Indemnification. Pechiney agrees to indemnify, defend and hold Vernon, its
successors and assigns, and their respective officers, employees, agents and representatives
(collectively, the "Indemnified Parties") harmless from and against any and all third party claims,
losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and
court costs) suffered or incurred by any of the Indemnified Parties as a direct result of the
performance of the Remediation Activities by Pechiney or Pechiney's employees, contractors or
other representatives, including, without limitation, damages or losses sustained as a result of the
recordation of any mechanic's liens, physical damage to the Property, and injury to Persons or
property, except to the extent such damages or injuries are the result of an Indemnified Party's
negligence or willful misconduct. For clarification, the foregoing indemnification is not intended to
cover losses or claims which relate to the environmental condition of the Property or to existence of
contamination on, under or about the Property, but is intended only to cover losses or claims which
directly result from the performance of the Remediation Activities. The foregoing indemnification
shall not limit or extend the scope of the indemnification provisions in the PSA.
4. Insurance. Pechiney agrees to maintain (or cause its contractors and other
representatives performing the Remediation Activities on the Property to maintain) in effect
insurance coverage meeting the requirements set forth on Schedule 1 attached hereto. Such
insurance shall name Vernon as an additional insured and shall be with companies, with deductibles
and otherwise in form reasonably acceptable to Vernon. Pechiney shall deliver to Vernon, prior to
commencing any of the Remediation Activities on the Property, certificates of insurance or other
evidence reasonably satisfactory to Vernon that the insurance required hereunder,is in full force and
effect,
5. Default.
(a) If Pechiney defaults in any of its obligations under this Agreement, Vernon
shall give notice to Pechiney identifying the default. Temporary cessation of the Remediation
Activities (not to exceed thirty (30) days) or cessation of the Remediation Activities by direction of
the EPA and/or the DTSC, shall not be deemed to be a default. If Pechiney fails to cure the default
within ten (10) days thereafter (or sooner, if the default is likely to cause damages or injury to
Persons or Property) then Vernon may, by notice to Pechiney, immediately terminate this Agreement
and take such other actions against Pechiney at law or equity as it shall determine in its sole
discretion, including without limitation the right of self-help described below. Such termination is
without prejudice to any other rights of remedy of Vernon under applicable law. Provided, however,
4
069367.D00006 602741975.E
if such default is not reasonably capable of being cured within such ten (10) day period (it being
agreed that the payment of money is a curable default within such period), Pechiney will have an
additional reasonable time to cure the default as long as it commences the cure within such ten (10)
day period and diligently pursues the cure to completion.
(b) If the event of a default by Pechiney which is not cured within the times set
forth in clause (a) above, Vernon shall have, among other remedies, the right, but not the obligation,
to cure such default for the account of and at the expense of Pechiney; provided, however, that in the
event of emergency conditions posing an immediate threat to persons or property and constituting a
default, Vernon acting in good faith shall have the right to cure such default upon such advance
notice as is reasonably possible under the circumstances or, if necessary, without advance notice, so
long as notice is given as soon as possible thereafter. Any notice hereunder shall specify with
particularity the nature of the default claimed and shall set forth the action which Vernon proposes to
take in order to cure the claimed default.
(c) Each party hereto shall have the right to prosecute any proceedings at law or in
equity against any other party hereto, or any other person, violating, attempting to violate, threatening
to violate, or defaulting upon any of the, provisions contained in this Agreement, in order to prevent
the violating or defaulting party or any such person from violating, attempting to violate, threatening
to violate or defaulting upon the provisions of this Agreement and to recover damages for any such
violation or default.
(d) All costs and expenses reasonably incurred by any party to cure a default of a
defaulting party, together with interest thereon, at the lower of the Wall Street Journal Prime Rate
plus five percent (5%) or the maximum rate allowed by applicable usury law, and all costs and
expenses of any proceedings at law or in equity, including reasonable attorneys' fees awarded to any
party by an order of court, shall be assessed against and paid by the defaulting or violating party.
6. Revocability: Assimment.
(a) Vernon reserves the right to revoke and terminate this Agreement at any time
including without limitation upon the occurrence of a default by Pechiney hereunder, or with respect
to any of Pechiney's surviving obligations under the PSA which relate to the Seller Remediation
Obligations. However, unless Pechiney is in default hereunder (after applicable notice and cure
time) Vernon may not terminate this Agreement unless the EPA and/or the DTSC (as applicable)
consent in writing to such termination, or Pechiney is unconditionally released by the DTSC and the
EPA from all further obligations to remediate the Property. Provided, further, that regardless of
whether Pechiney defaults hereunder, Vernon may not revoke or terminate this Agreement with
respect to Pechiney's access rights to the Retained Property described in Section 1(c) above until the
occurrence of the events described in Section 1(c) above under which such rights would terminate.
(b) Vernon may assign this Agreement to subsequent owners of the Property.
(c) Pechiney may delegate its obligations under this Agreement to third party
contractors, but no such delegation shall relieve Pechiney from liability hereunder to perform such
obligations. Pechiney may assign its entry rights under Section 1 c) of this Agreement (for the
089367.000006 602741975.8
purpose of creating access to the Retained Property from Boyle Avenue) to any subsequent owner of
the Retained Property.
7. Binding Agreement: Governing Law. This Agreement shall be binding on and
inure to the benefit of the parties and their respective successors and assigns, subject to the
restrictions on assignment above. This Agreement shall be governed by the laws of the State of
California.
8. Notices. All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if delivered personally or mailed, by certified or registered
mail, return -receipt requested, first-class postage prepaid, or by Federal Express or some other
reputable overnight carrier, to the parties at the following addresses:
If to Vernon: City of Vernon, California
4305 Santa Fe Avenue
Vernon, CA 90058
Attn: City Administrator
With a copy to: DLA Piper LLP (US)
550 S. Hope Street, Suite 2300
Los Angeles, CA 90071
Attention: Michael Hamilton, Esq.
If to Pechiney: Pechiney Cast Plate, Inc.
4700 Daybreak Parkway
South Jordan, Utah 84095
Attention: Cheree Finan
With a copy to: Baker Hostetler LLP
11601 Wilshire Boulevard, Suite 1400
Los Angeles, CA 90025
Attention: Bruce R. Greene, Esq.
or to such other place and with such other copies as either party may designate by notice to the other
party.
9. Amendment. This Agreement may be modified or amended only in a writing duly
executed by both parties.
10. Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute one and the same
instrument.
11. Recordation. This Agreement shall be recorded in the office of the Recorder of Los
Angeles County, California.
089367.000006 602741975.8
IN WITNESS WHEREOF, this Agreement has been executed as of the date first above
written.
"VERNON" "PECHINEY"
City of Vernon Pechiney Cast Plate, Inc.
By: By:
Name:
Title:
Approved as to form:
DLA Piper LLP (US), Special Counsel
to Buyer
William Adams, President
089367.000006 602741975.8
ACKNOWLEDGMENT
A Notary Public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA
ss.
COUNTY OF
On 20_ before me, , personally
appeared , who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
NOTARY PUBLIC
[SEAL]
089367.000006 602741975.8
ACKNOWLEDGMENT
A Notary Public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA )
ss.
COUNTY OF 1
On 20_ before me, , personally
appeared , who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
1 certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
NOTARY PUBLIC
[SEAL]
089367.000006 602741975.8
EXHIBIT "A"
PROPERTY DESCRIPTION
Exhibit "A"
089367.000006 602741975.8
RETAINED PROPERTY DESCRIPTION
Exhibit "B"
089367.000006 602741975.8
Schedule 1
Insurance Requirements
Prior to entry upon the Property, Pechiney shall f r mish to Vernon, at Pechiney's expense, certificates
of insurance listing Vernon as an additional insured on the policies listed below (with the exception
of the Worker's Compensation, Employer's Liability and Professional Liability policies), evidencing
that Pechiney, or its agents and contractors, have insurance in full force and effect meeting the
requirements set forth below:
Type of Coverage
Limits
Worker's Compensation/Employer's Liability
Statuto /$500,000
Commercial General Liability Insurance
$2,000,000/occurrence
$5,000,000/aggregate
Automobile Liability
$1,000,000 Combined/ Single Limit
The Commercial General Liability ("CGL") Insurance required hereby shall be on an
"occurrence" basis for bodily injury, death and property damage liability. The aggregate
coverage thereunder shall apply separately to products -completed operations and all other general
liability coverages combined. The CGL policy shall cover all operations of the named insured,
including (i) owner's and contractor's protective liability (i.e., independent contractors , (ii)
products and completed operations, (iii) contractual liability (specifically covering the
indemnification contained in this Agreement), (iv) broad form property damage, (v) severability
of interest and cross liability clauses, muL(vi) personal injury for groups of offenses, A, B, and C
with exclusion (c) deleted. Pechiney shall remain liable for the payment of all deductibles. The
CGL insurance shall be written on an Insurance Services Office ("ISO") occurrence form CG 00
01 10 93 (or a substitute form reasonably acceptable to Vernon providing equivalent or greater
coverage).
Pechiney shall require that its agents and contractors maintain the aforesaid coverages at all times
during the License Term. Any coverage written on a "claims -made" basis shall be kept in force,
either by renewal or the purchase of an extended reporting period, for a minimum period of three
(3) years following the expiration of the License Term. Each policy which provides coverage for
losses to property shall contain a waiver of subrogation, if the same can be obtained. All such
policies shall be primary and non-contributing with and not in excess of, any other insurance
available to any of the additional insureds under such policies, and shall have commercially
reasonable deductible amounts.
Schedule 1
089367.000006 602741975.8
Exhibit E
Escrow Instructions
[attached hereto]
Exhibit E
089367.000006 602733312.40
6ti /.MBA}C
i4C
First American Title Company
National Commercial Services
4380 La Jolla Village Drive, Suite 110, San Diego, CA 92122
DISCHARGE OF ESCROW HOLDER
AND
TRANSFER OF ESCROW DUTIES TO FIRST AMERICAN TITLE COMPANY
December 5, 2014
To:
Re: Escrow No. NCS-666223-SD
Attn: Custodian of Records
The undersigned hereby discharges as Escrow holder and here by
requests the transfer of the above referenced escrow file as called for herein below. The undersigned do hereby
appoint First American Title Company to act as Escrow Agent under the same terms and conditions as set forth in
the purchase agreement. Upon the execution of these instructions shall :
1. Disburse and deliver the funds held by you to First American Title Company, 4380 La Jolla Village Drive
, Escrow Officer.
2. Forward any and all documents, instructions, correspondence and /or Instruments held by you to First
American Title Company , Escrow Officer. This includes but is not limited to any original, faxed or copied material
executed by or addressed to both or either of the undersigned, or their agents, employees, brokers, attorney,
and/or lenders.
This instruction may be executed In any number of counterparts, each of which shall be considered as an original
and effective as such. You may also accept a facsimile of this instruction as an original and effective as such.
ALL DOCUMENTS OR FUNDS RELEASED PURSUANT TO THIS INSTRUCTION ARE TO BE DELIVERED TO:
First American Title Company
4380 La Jolla Village Drive
San Diego, CA 92122
DO NOT MAIL ANY MATERIAL TO THIS OFFICE. IF DELIVERY IS NOT POSSIBLE CALL TO ARRANGE
FOR A MESSENGER, (858)410-3900
Each of the undersigned acknowledges receipt of a copy hereof.
ih /12/05/2014
Exhibit F
Draft Restrictive Covenant
[attached hereto]
Exhibit F
089367.000006 602733312.40
RECORDING REQUESTED BY:
Pechiney Cast Plate Inc.
4700 Daybreak Parkway
South Jordan, Utah 84095
WHEN RECORDED MAIL TO:
Department of Toxic Substances Control
I
I
Notes: 1) APN's to be inserted after Lot
I Line Adjustment.
2) Changes to definition of
"Owner" may be needed if
executed by Xebec
after Closing.
I
SPACE ABOVE THIS LINE RESERVED FOR RECORDER'S USE
LAND USE COVENANT AND AGREEMENT
ENVIRONMENTAL RESTRICTIONS
County of Los Angeles, Assessor's Parcel Numbers [leave out]
Former Pechiney Cast Plate Facility, Vernon, California [Site No. 301396-00]
This Land Use Covenant and Agreement — Environmental Restrictions ("Covenant") is made
and entered into as of the date last written below, by and between Pechiney Cast Plate, Inc. a
Delaware corporation ("Owner"), the current owner of certain property situated at 3200 Fruitland
Avenue, Vernon, County of Los Angeles, State of California, legally described in Exhibit A and
depicted on Exhibit B, (the "Property") and the California Department of Toxic Substances
Control (the "Department," which includes its successor agencies, if any). The Department has
determined that this Covenant is reasonably necessary to protect present or future human
health or safety or the environment as a result of the presence on the land of "Hazardous
Materials" (as defined in California Health and Safety Code section 25260 and "Hazardous
Substances" (as defined in California Health and Safety Code section 25316) (collectively,
"Hazardous Substances"). Owner and the Department hereby agree, pursuant to California
Civil Code section 1471, and California Health and Safety Code sections 25222.1 and 25355.5
that the use of the Property be restricted as set forth in this Covenant and that the Covenant
conforms with the requirements of the California Code of Regulations, Title 22, section 67391.1.
The parties further intend that the provisions of this Covenant shall also be for the benefit of,
and enforceable by, the United States Environmental Protection Agency (the "EPA") as a third
parry beneficiary, although the EPA is not a party to this Agreement.
ARTICLE I
STATEMENT OF FACTS
1.1 Prooerty Location. The Property consists of two legal parcels, totaling
approximately 552,715 square feet as more particularly described in Exhibit A. The Property
-1-
089367.000006 603354862.9
was formerly (prior to a lot line adjustment) part of four legal parcels which totaled approximately
26.9 acres. The Property is located at the southeasterly corner of the intersection of Boyle
Avenue and Fruitland Avenue, and bears Los Angeles County Assessor's Parcel Numbers set
forth above. The Property was used for manufacturing high -precision cast aluminum plates
from about 1937 until about 2005. The Property is currently zoned for industrial use. The future
property use will remain industrial or commercial. The surrounding land uses are zoned
industrial or commercial.
1.2 Remediation of the Property.
1.2.1 Remedial investigations conducted at the Property identified volatile
organic compounds ("VOCs"), petroleum hydrocarbons (as Stoddard solvent), polychlorinated
biphenyls ("PCBs"), and metals (mainly arsenic) in soil; VOCs and Stoddard solvent in soil
vapor; and PCBs in concrete building floor slabs. These investigations also identified VOCs,
including trichloroethene, and tetrachloroethene, in groundwater beneath the Property.
Groundwater is present at a depth of approximately 145 to 150 feet. Remedial investigation and
screening level human health risk assessment ("HHRA") findings for the Property are
summarized in the Feasibility Study (AMEC, May 2012). Based on the HHRA, site -specific
remediation goals were established for the contaminants in soil vapor, soil, and concrete at the
Property under future industrial land use. Potential off -site beneficial use of groundwater was
evaluated using maximum contaminant levels ("MCLs").
1.2.2 Owner prepared a Remedial Action Plan (as amended, the "RAP") to
mitigate concrete, soil and groundwater impacts at the Property under the oversight of the
Department. The RAP was prepared pursuant to an Imminent and Substantial Endangerment
Determination and Consent Order signed by Owner on June 29, 2010 and by the Department
on July 6, 2010 (the "Consent Order"). Pursuant to Code of Federal Regulations, Title 40,
Subchapter R, Toxic Substances Control Act, the EPA has oversight for PCB -impacted soil and
concrete. Mitigation of the PCB -impacted concrete and soil was approved by the EPA.
Pursuant to the California Environmental Quality Act (Public Resources Code Section 21000 et
seq.) the RAP was released for public review and comment and subsequently approved by the
Department on June 28, 2012. The RAP was amended by Addendum dated May 20, 2013.
Based on site -specific remediation goals developed for contaminants present in concrete, soil,
and soil vapor at the Property, impacted media will be mitigated to industrial levels.
1.2.3 Implementation of the RAP began in December 2012, with the installation
of soil vapor extraction ("SVE") systems to mitigate VOC-impacted soil in the northern portion of
the Property and Stoddard solvent -impacted soil in the southern portion of the Property. PCB
and metals impacted soil were excavated and removed from the Property as described in the
RAP. The areas associated with the Property that were mitigated under the RAP are shown on
Exhibit C. Currently, operation and maintenance ("O&M") activities for the SVE systems and
groundwater monitoring are ongoing. The location of the SVE systems and groundwater
monitoring wells are also shown on Exhibit C. The O&M of the SVE systems and groundwater
-2-
089367.000006 603354862.9
monitoring wells will be pursuant to an Operation and Maintenance Agreement to be executed
by Owner and the Department (the "O&M Agreement').
1.2.4 Soil remaining in place at depths greater than 15 feet below native grade
with PCBs concentration above the approved remediation goal (23 milligrams/kilogram) are
covered with a physical underground warning barrier that consists of a concrete layer covered
with an orange liner. The locations of the underground warning barriers are shown in Exhibit D.
1.2.5 As detailed in the Implementation Reports which were required under the
Consent Order, approved by the Department and the EPA, soils within portions of the Property,
to a depth of 15 feet or more below the surface, contain hazardous substances, which include
the contaminants of concern in the ranges set forth below, and as summarized in Exhibit E.
Hazardous Substances remain at the Property above concentrations acceptable for unrestricted
land use.
Soil — VOCs, PCBs, TPH (to be updated with final results)
Groundwater- VOCs (to be updated with final results)
1.2.6 Pursuant to the EPA's conditional approval of the PCB remediation,
attached as Exhibit F are certain documents which are required by EPA to be included in this
Covenant.
1.3 Basis for Environmental Restrictions. As a result of the presence of Hazardous
Substances on the Property, the Department and the EPA have concluded that it is reasonably
necessary to restrict the use of the Property in order to protect present or future human health
or safety or the environment, and that this Covenant is required as part of the Department -
approved remedy for the Property. The Department and the EPA have also concluded that the
Property, as remediated and when used in compliance with the Environmental Restrictions (as
defined below), does not present an unacceptable risk to present and future human health or
safety or the environment.
ARTICLE II
DEFINITIONS
Capitalized terms used in this Covenant, which are not otherwise defined, have the
following meanings:
2.1 "Department" means the California Department of Toxic Substances Control and
its successor agencies, if any.
2.2 "Engineering Controls" means refer to physical structures, such as vapor barriers
or caps, which reduce exposure to contaminants.
2.3 "Environmental Restrictions" means all protective provisions, covenants,
restrictions, requirements, prohibitions, and terms and conditions set forth in this Covenant.
-3-
089367.000006 603354862.9
2.4 "Improvements" means any buildings, roads, driveways, improved parking areas,
pipelines or other utilities, or other structures now or hereafter constructed on the Property.
2.5 "Lease" means a lease, rental agreement, or any other document that creates a
right to use or occupy any portion of the Property.
2.6 "Owner" means Pechiney Cast Plate, Inc. and any successor in interest,
including any heir or assignee who at any time holds title to all or any portion of the Property.
2.7 "Occupant" means Owner, and any person or entity entitled by ownership,
leasehold, or other legal relationship to the right to occupy any portion of the Property.
ARTICLE III
GENERAL PROVISIONS
3.1 Runs with the Land. This Covenant sets forth Environmental Restrictions that
apply to and encumber the Property and every portion thereof, no matter how it is improved,
held, used, occupied, leased, sold, hypothecated, encumbered or conveyed. This Covenant: (a)
runs with the land pursuant to California Civil Code Section 1471, and California Health and
Safety Code Section 25355.5; (b) inures to the benefit of and passes with each and every
portion of the Property; (c) is for the benefit of and is enforceable by the Department and the
EPA, and (d) is imposed upon the entire Property unless expressly stated as applicable only to
a specific portion thereof.
3.2. Binding upon Owners/Occupants. This Covenant: (a) binds all Owners of the
Property, their heirs, successors, and assignees; and (b) the agents, employees, and lessees of
the Owners and the Owners' heirs, successors and assignees. Pursuant to Civil Code section
1471, all successive Owners of the Property are expressly bound hereby for the benefit of the
Department; this Covenant, however, is binding on all Owners and Occupants, and their
respective successors and assignees, only during their respective periods of ownership or
occupancy except that such Owners or Occupants shall continue to be liable for any violations
of, or non-compliance with, the Environmental Restrictions of this Covenant or any acts or
omissions of such Owner or Occupants, as the case may be, during their ownership or
occupancy. The provisions of this Covenant shall also be for the benefit of, and enforceable by,
the EPA as a third party beneficiary.
3.3 Incorporation into Deeds and Leases. This Covenant shall be incorporated by
reference in each and every deed and Lease for any portion of the Property.
3.4 Conveyance of Property. Owner and any new Owner shall provide Notice (as
defined herein) to the Department not later than thirty (30) calendar days after any conveyance
or receipt of any ownership interest in the Property (excluding Leases, and mortgages, liens,
and other non -possessory encumbrances). The Notice shall include the name and site code as
-4-
089367.000006 603354862.9
listed on page one (1) of this Covenant. The Notice shall also include the Assessor's Parcel
Number(s) noted on page one (1). If the new Owner's property has been assigned a different
Assessor Parcel Number, each such Assessor Parcel Number that covers the Property must be
provided. The Department nor the EPA shall not, by reason of this Covenant, have authority to
approve, disapprove, or otherwise affect proposed conveyance, except as otherwise provided
by law or by administrative order.
3.5 Costs of Administerina the Covenants to Be Paid by Owner. The Department
has already incurred and will in the future incur costs associated with this Covenant. Therefore,
Owner hereby covenants for itself and for all subsequent Owners that, pursuant to California
Code of Regulations, title 22, section 67391.1(h), Owner agrees to pay the Department's costs
in administering, implementing and enforcing this Covenant. If more than one person or entity is
the Owner, then such costs will be subject to apportionment as provided in California Civil Code
§1471(c).
ARTICLE IV
RESTRICTIONS AND REQUIREMENTS
4.1 Prohibited Uses. The Property shall not be used for any of the following
purposes without prior written approval of the Department:
(a) A residence, Including any mobile home or factory built housing,
constructed or installed for use as residential human habitation,
(b) A hospital for humans
(c) A public or private school for persons under 18 years of age.
(d) A day care center for children.
4.2. Soil Management. Soil management activities at the Property are subject to the
following requirements in addition to any other applicable Environmental Restrictions:
(a) No activities which will disturb the soil (e.g., excavation, grading, removal,
trenching, filling, earth moving, mining or drilling) shall be allowed at the Property without a soil
management plan pre -approved by the Department and the EPA in writing.
(b) Any contaminated soils brought to the surface by grading excavation,
trenching, or backfilling shall be managed in accordance with all applicable provisions of state
and federal laws.
(c) No activities which will disturb the underground warning barriers, shall be
permitted without a soil management plan pre -approved by the Department and the EPA in
writing.
4.3 Structures Remaining in Place. The locations of structures that remain in place
at depths of ten (10) feet and fifteen (15) feet below native grade (including deep soil containing
PCBs) are shown on Exhibit D.
-5-
089367.000006603354862.9
4.4. Prohibited Activities. The following activities shall not be conducted at the
Property without the prior written approval of the Department:
(a) Any activities that may alter, interfere with or otherwise affect the integrity
or effectiveness of the SVE systems or the groundwater monitoring wells.
(b) Any activities that may alter, interfere with or otherwise affect the integrity
or effectiveness of any Engineering Controls.
(c) Any uses or activities which do not preserve the physical accessibility to
and integrity of, the SVE systems, the groundwater monitoring wells and any Engineering
Controls.
(d) Any activity (other than those required under the RAP) that would access,
extract or use groundwater within the first water -bearing unit beneath the Property.
(a) Any drilling for water, oil or gas.
4.5 Access for Department. The Department and the EPA shall have reasonable
right of entry and access to the Property at reasonable times and upon reasonable advance
notice to Owner or other Occupants (except in the event of an emergency), for inspection,
investigation, remediation, monitoring and other activities as deemed necessary by the
Department in order to protect the human health or safety, or the environment. Owner or other
Occupants may be present at the time of any such entry.
4.6 Access for Implementing Operation and Maintenance: Subject to the provisions
of that certain Access License Agreement between Owner and [Xebec], which was recorded in
the office of the Los Angeles City Recorder, any person or entity responsible for implementing
the O&M activities, if any, shall have reasonable right of entry and access to the Property upon
reasonable advance notice for the purpose of implementing such O&M activities until the
Department determines that no further O&M Agreement activities are required. Owner or other
Occupants may be present at the time of any such entry. All remediation systems associated
with the O&M activities which are described in the RAP (including SVE systems, bioventing
systems and groundwater monitoring wells) shall remain at the Property until the Department
grants environmental closure.
4.7 Limitations on Access. Prior to the entry onto the Property by any person
pursuant to Paragraphs 4.5 or 4.6, the person entering the Property (other than an employee of
the Department or the EPA) shall provide Owner with evidence of commercially reasonable
liability insurance coverage insuring against personal injury and property damage. Further, any
entry onto the Property by any person pursuant to Paragraphs 4.5 and 4.6 shall be at the sole
risk of such person, and Owner shall not be liable for any damage to such person or such
person's property, except to the extent caused by the gross negligence or willful misconduct of
Owner.
-6-
089367.000006 603354862.9
4.8 Inspection and Reporting Requirements. Owner shall conduct an annual
inspection of the Property verifying compliance with this Covenant and shall submit an annual
inspection report to the Department for its approval by January 31 of each year. The annual
inspection report must include the dates, times, and names of those who conducted the
inspection and reviewed the annual inspection report. It also shall describe how the
observations that were the basis for the statements and conclusions in the annual inspection
report were performed (e.g., drive by, fly over, walk in, etc.). If any violation is noted, the annual
inspection report must detail the steps taken to correct the violation and return to compliance. If
Owner identifies any violations of this Covenant during the annual inspection or at any other
time, Owner must within ten (10) calendar days of identifying the violation: (a) determine the
identity of the party in violation; (b) send a letter advising the party of the violation of the
Covenant; and (c) demand that the violation cease immediately. Additionally, a copy of any
correspondence related to the violation of this Covenant shall be sent to the Department within
ten (10) calendar days of its original transmission.
ARTICLE V
ENFORCEMENT
5.1 Enforcement. Failure of any Owner or Occupant to comply with this Covenant
shall be grounds for the Department or the EPA to require modification or removal of any
Improvements constructed or placed upon any portion of the Property in violation of this
Covenant. Violation of this Covenant, such as failure to submit any required reports or other
materials to the Department or the EPA, or the submission of any false statement, record or
report to the Department or the EPA, shall be grounds for the Department or the EPA to pursue
administrative, civil, or criminal actions as provided by law.
ARTICLE VI
VARIANCE, REMOVAL AND TERM
6.1 Variance from Environmental Restrictions. Any person may apply to the
Department for a written variance from any of the Environmental Restrictions imposed by this
Covenant. Such application shall be made in accordance with California Health and Safety
Code section 25223.
6.2 Removal of Environmental Restrictions. Any person may apply to the
Department or the EPA to remove any of the Environmental Restrictions imposed by this
Covenant in its entirety. Such application shall be made in accordance with California Health
and Safety Code section 25224.
6.3 Term. Unless ended in accordance with Paragraph 6.2, by law, or by the
Department or the EPA in the exercise of its discretion, this Covenant shall continue in effect in
perpetuity.
-7-
089367.000006 603354862.9
ARTICLE VII
MISCELLANEOUS
7.1 No Dedication Intended. Nothing set forth in this Covenant shall be construed to
be a gift or dedication, or offer of a gift or dedication, of the Property, or any portion thereof, to
the general public or anyone else for any purpose whatsoever.
7.2 Recordation. Owner shall record this Covenant with all referenced Exhibits in the
Office of the County Recorder of Los Angeles County, California within ten (10) calendar days of
Owner's receipt of a fully executed original from the Department.
7.3 Notices, Whenever any person gives or serves any Notice ("Notice" as used
herein includes any demand or other communication with respect to this Covenant), each such
Notice shall be in writing and shall be deemed effective: (a) when delivered personally or by a
national recognized overnight delivery service to the person being served or to an officer of a
corporate party being served; or (b) five (5) calendar days after deposit in the mail, if mailed by
United States mail, postage paid, certified, return receipt requested:
To Owner: Pechiney Cast Plate Inc.
4700 Daybreak Parkway
South Jordan, Utah 84095
And
To Department: Unit Chief
To EPA: US EPA Region 9
TSCA Coordination Group
Any party or the EPA may change its address or the individual to whose attention a
Notice is to be sent by giving advance written Notice in compliance with this paragraph.
7.4 Partial Invalidity. If this Covenant or any of its terms are determined by a court of
competent jurisdiction to be invalid for any reason, the surviving portions of this Covenant shall
remain in full force and effect as if such portion found invalid had not been included herein.
7.5 Statutory References. All statutory or regulatory references include successor
provisions.
7.6 Incorporation of Exhibits. All Exhibits and attachments to this Covenant are
incorporated herein by reference.
-8-
089367.000006 603354862.9
7.7 Governino Law, This Covenant is entered into in the State of California and shall
be interpreted in accordance with the laws of the State of California.
7.8 Counterparts. This Covenant may be signed in multiple counterparts, each of
which shall be deemed an original and all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, Owner and the Department have executed this Covenant as of the
dates written below.
OWNER
Pechiney Cast Plate, Inc.
a Delaware corporation
By:
William Adams
Title: President
Date:
DEPARTMENT
California Department of Toxic Substances Control
By: —
Title:
Date:
EXHIBITS
Exhibit A — Legal description of the Property
Exhibit B — Site Plan
Exhibit C — Areas of Property Mitigated/Location of SVE Systems and
Groundwater Monitoring Wells
Exhibit D — Locations of Underground Warning Barriers and Structures
Remaining in Place Below 10/15 Feet
Exhibit E — Summary of Implementation Report Information
Exhibit F — Certain Required Documentation as Required by EPA
2009 PCB Application, Application Amendments, and the July 2, 2010 and
July 1, 2011 Conditional approval letters and attachments.
-9-
089367.000006 603354862.9
A Notary Public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
SS.
COUNTY OF
On 20_ before me, , personally
appeared who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s),
or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
NOTARY PUBLIC
[SEAL]
-10-
089367.000006 603354862.9
A Notary Public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
ss.
COUNTY OF 1
On 20_ before me, , personally
appeared , who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s),
or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
NOTARY PUBLIC
[SEAL]
-11-
089367.000006 603364862.9
Exhibit G
Promissory Note
[attached hereto]
Exhibit G
089367.000006602733312.40
PROMISSORY NOTE
(Purchase Price)
$1,426,915
June 11, 2015
Los Angeles, California
1. Aereement to Pay. FOR VALUE RECEIVED, Pechiney Cast Plate, Inc., a Delaware
corporation ("Seller"), hereby promises to pay to the order of the City of Vernon ("Buyer"), the principal
sum of One Million Four Hundred Twenty -Six Thousand Nine Hundred Fifteen and 00/100 Dollars
($1,426,915) (the "Loan"), at the place and in the manner hereinafter provided.
2. Interest. The Loan shall not bear interest.
Payment Terms.
3.1 Monthly Payments. Commencing on July 11, 2015 (or if such date is not a
business day, then on the next succeeding business day), and on the 11'" day of each calendar
month thereafter (or if such date is not a business day, then on the next succeeding business day),
an installment payment equal to Five Hundred Thousand and 00/100 Dollars ($500,000.00), shall
be due and payable to Buyer until such time as all principal under this Note has been paid in full.
3.2 Application of Payments. All payments and prepayments on account of the
indebtedness evidenced by this Note shall be applied to the unpaid principal balance of this Note.
Any prepayment on account of the indebtedness evidenced by this Note shall not extend or
postpone the due date or reduce the amount of any subsequent monthly payment of principal and
interest due hereunder.
3.3 Method of Payments. All payments hereunder shall be paid by automatic debit,
wire transfer, check or in coin or currency which, at the time or times of payment, is the legal
tender for public and private debts in the United States of America and shall be made at such
place as Buyer or the legal holder or holders of this Note may from time to time appoint in the
payment invoice or otherwise in writing, and in the absence of such appointment, then at the
offices of Buyer at 4305 Santa Fe Avenue, Vernon, California 90058. Payment made by check
shall be deemed paid on the date Buyer receives such check.
3.4 Prepayment. This Note is prepayable without premium or penalty.
4. Events of Default. The occurrence of any one or more of the following events shall
constitute an "Event of Default' under this Note:
4.1 the failure by Seller to pay any installment of principal payable or any other
amount pursuant to this Note on the date when due (subject to notice and two (2) business days to
cure); or
4.2 the occurrence of the dissolution, insolvency or winding -up, as applicable, of
Seller.
5. Remedies. At the election of the holder hereof, and without notice, the principal balance
remaining unpaid under this Note shall be and become immediately due and payable in full upon the
089367.000006 605674451.3
occurrence of any Event of Default. Failure to exercise this option shall not constitute a waiver of the
right to exercise same in the event of any subsequent Event of Default. No holder hereof shall, by any act
of omission or commission, be deemed to waive any of its rights, remedies or powers hereunder or
otherwise unless such waiver is in writing and signed by the holder hereof, and then only to the extent
specifically set forth therein. The rights, remedies and powers of the holder hereof, as provided in this
Note are cumulative and concurrent, and may be pursued singly, successively or together against Seller,
all at the sole discretion of the holder hereof. If any suit or action is instituted or attorneys are employed
to collect this Note or any part hereof, Seller promises and agrees to pay all costs of collection, including
reasonable attorneys' fees and court costs.
6. Other General Aereements.
6.1 Time is of the essence hereof.
6.2 This Note is governed and controlled as to validity, enforcement, interpretation,
construction, effect and in all other respects by the statutes, laws and decisions of the State of
California. This Note may not be changed or amended orally but only by an instrument in writing
signed by the party against whom enforcement of the change or amendment is sought.
6.3 Buyer shall not be construed for any purpose to be a partner, joint venturer, agent
or associate of Tenant or of any lessee, operator, concessionaire or licensee of Seller in the
conduct of its business, and by the execution of this Note, Seller agrees to indemnify, defend, and
hold Buyer harmless from and against any and all damages, costs, expenses and liability that may
be incurred by Buyer as a result -of a claim by Seller that Buyer is such partner, joint venturer,
agent or associate.
6.4 This Note shall inure to the benefit of and may be enforced by Buyer and its
successors and assigns.
6.5 If any provision of this Note is deemed to be invalid by reason of the operation of
law, or by reason of the interpretation placed thereon by any administrative agency or any court,
Buyer and Seller shall negotiate an equitable adjustment in the provisions of the same in order to
effect, to the maximum extent permitted by law, the purpose of this and the validity and
enforceability of the remaining provisions, or portions or applications thereof, shall not be
affected thereby and shall remain in full force and effect.
6.6 Seller may not assign its rights or obligations under this Note, or any part thereof,
without the prior written consent of Buyer, which shall be given or withheld in Buyer's sole
discretion.
6.7 If any attorney is engaged by Buyer or if Buyer incurs any costs, expenses or
losses because of any Event of Default or to enforce or defend any provision of this Note, then
Seller shall pay upon demand the reasonable attorneys' fees and all costs, expenses and losses so
incurred by Buyer.
7. Notices. All notices provided for herein may be telecopied/facsimiled (with machine
verification of receipt), sent by Federal Express or other overnight courier service, personally delivered or
mailed registered or certified mail, return receipt requested. If a notice is sent by telecopy/facsimile, it
shall be deemed given when transmission is complete if (a) a confirmation of successful transmission is
contemporaneously printed by the transmitting telecopy machine and (b) a copy of the notice is sent to the
recipient by overnight courier for delivery on the business day next following the date of telecopy
2
089367.000006 60567"51.3
transmission. If a notice is personally delivered, sent by overnight courier service or sent by registered or
certified mail, it shall be deemed given upon receipt or refusal of delivery. The address to be used in
connection with notices are as set forth on Schedule I to this Note, or such other address as a party shall
from time to time direct by notice given in accordance with this Section.
089367.000006 805674461.3
IN WITNESS WHEREOF, Seller has executed and delivered this Note as of the day and year
first written above.
SELLER:
Pechiney Cast Plate, Inc.,
a Delaware corporation
By:
Name: William Adams
Title: President
S-1
PRONSSORY NOTE
089367.000006 605674451.3
Schedule 1
Notice Addresses
Buyer
City of Vernon, California
4305 Santa Fe Avenue
Vernon, CA 90058
Attn: City Administrator
F: 323.826.1491
e: mwhitworthna.ci.vernon.ca.us
Copy to:
City of Vernon, California
4305 Santa Fe Avenue
Vernon, CA 90058
Attn: City Attorney
F: 323.826.1491
e: nrodrig 1t ez(a.ci.vemon.ca.us
City of Vernon, California
4305 Santa Fe Avenue
Vernon, CA 90058
Attn: Mr. Alex Kung
F: 323.826.1491
e: akungCcr�ci.vemon.ca.us
DLA Piper LLP (US)
550 S. Hope Street
Suite 2300
Los Angeles, CA 90071
Attn: Michael Hamilton, Esq.
P: 213.330.7731
F: 213.330.7536
E: michael.hamiltonedlapiper.com
089367.000006 605674451.3
Seller
Pechiney Cast Plate Inc.
4700 Daybreak Parkway
South Jordan, Utah 84095
Attention: Cheree Finan
Baker Hostetler LLP
11601 Wilshire Boulevard
Suite 1400
Los Angeles, CA 90025-7120
Attn: Bruce Greene, Esq.
P:310.442.8834
F: 310.820.8859
E: bgreene@bakerlaw.com
089367.000006 605674451.3
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT ("Agreement") has been made as of June 11, 2015 (the
"Effective Date"), by and between the CITY OF VERNON ("Vernon") and KENNECOTT
HOLDINGS CORPORATION, a Utah corporation ("Guarantor").
WHEREAS, Vernon and Pechiney Cast Plate, Inc., a Delaware corporation ("Pechiney"), have
entered into that certain Offer, Agreement and Escrow Instructions for Purchase of Real Estate dated
March 20, 2006, with attached Addendum dated March 20, 2006, as amended by that certain First
Amendment to Standard Offer, Agreement and Escrow Instructions for Purchase of Real Estate, dated as
of June 15, 2006, and as further amended by that certain Second Amendment to Standard Offer,
Agreement and Escrow Instructions for Purchase of Real Estate, dated as of April 7, 2015, (collectively,
the "Purchase Agreement'). Capitalized terms used but not defined herein have the meaning given to
them in the Purchase Agreement.
WHEREAS, the Purchase Agreement provides that as a condition precedent to the Closing for the
benefit of Vernon, from and after the Closing, Guarantor shall guarantee the indemnity obligations of
Pechiney described in Section 9.2 of the Purchase Agreement.
WHEREAS, Guarantor holds an indirect interest in Pechiney and will derive material economic
and other benefits from the transaction contemplated by the Purchase Agreement and therefore desires to
execute this Agreement as further consideration for and in fulfillment of the conditions precedent to the
Closing under the Purchase Agreement.
NOW THEREFORE, in consideration of the foregoing and other good and valuable consideration
the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Guarantee. Guarantor hereby irrevocably, absolutely and unconditionally guarantees to Vernon
the full, prompt and complete payment and performance when due of Pechiney's obligations set
forth in Section 9.2 of the Purchase Agreement (the "Obligations").
2. Guaranty Procedures/Enforcement of Agreement.
a. If Pechiney fails or refuses to perform any of the Obligations, Vernon shall notify
Guarantor in writing thereof and Guarantor shall promptly pay or perform such
Obligations which Pechiney failed or refused to pay or perform; provided, however, that
any failure of Vernon to notify Guarantor of such matter shall not impair or reduce the
Obligations of Guarantor hereunder.
b. Vernon may proceed to protect and enforce any or all of its rights under this Agreement
by suit in equity or action at law, whether for the specific performance of any covenants
or agreements contained in this Agreement or otherwise, or to take any action authorized
or permitted under applicable law, and shall be entitled to require and enforce the
performance of all acts and things required to be performed hereunder by Guarantor.
Each and every remedy of Vernon shall, to the extent permitted by law, be cumulative
and shall be in addition to any other remedy given hereunder or now or hereafter existing
at law or in equity.
c. At the option of Vernon, Guarantor maybe joined in any action or proceeding
commenced by Vernon against Pechiney in connection with or based upon Pechiney's
089367.000006 605674230.3
Obligations under the Purchase Agreement, and recovery may be had against Guarantor
in such action or proceeding or in any independent action or proceeding against
Guarantor to the extent of Guarantor's liability hereunder, without any requirement that
Vernon fist assert, prosecute or exhaust any remedy or claim against Pechiney or any
other Person.
3. Representations and Warranties. Guarantor hereby represents and warrants to Vernon as
follows:
a. Organization, Authority and Execution. Guarantor is duly organized and validly
existing under the laws of the State of Utah. The execution, delivery and performance by
Guarantor of this Agreement have been duly authorized by all necessary action of
Guarantor, and the execution, delivery and performance thereof by Guarantor does not
require any consent or approval of any member, any affiliate of any member, any trustee
or any party to any contract or agreement to which Guarantor is a party, other than such
consents and approvals as have been duly obtained or given.
b. Enforceability. This Agreement constitutes a legal, valid and binding obligation of
Guarantor, enforceable against Guarantor in accordance with its terms, except as
enforceability may be limited by applicable equitable principles and bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally.
c. No Violation. The execution, delivery and performance by Guarantor of this Agreement,
the consummation of the transactions contemplated hereby and compliance with the
terms and provisions hereof does not (i) violate the organizational documents of
Guarantor, (ii) require any consent (other than any consent which has been duly received
or given) under, or result in a breach or default of, any credit agreement, indenture,
purchase agreement, mortgage, deed of trust, commitment, guaranty, agreement or any
other instrument to which'Guarantor is a party or by which it or any of its property may
be bound or affected, or (iii) conflict with or violate any existing law, rule, regulation,
judgment, order, writ, injunction or decree of any government, governmental
instrumentality, or court, domestic or foreign, having jurisdiction over Guarantor or any
of its property.
d. Beneficiary of Purchase Agreement. Guarantor represents that it is benefitted by the
closing of the transaction contemplated under the Purchase Agreement, as it shares
indirect beneficial ownership interest in Pechiney.
4. Termination. Guarantor shall have no further liability hereunder for events and circumstances
first arising from and after the date that is the tenth anniversary of the Effective Date. The
foregoing shall in no way serve to limit or terminate any obligations of Pechiney or Guarantor
hereunder with respect to any action which has been commenced, prior to such date, by Vernon
against Guarantor in relation thereto.
5. Waivers. To the extent permitted by law and except as provided herein, Guarantor hereby
waives and agrees not to assert or take advantage of the following: (a) any right to require
Vernon (i) to proceed against any other Person, (ii) to proceed against or exhaust any security
held by Vernon at any time, or (iii) to pursue any other remedy in Vernon's power or under any
other agreement, in any case, before proceeding against Guarantor hereunder; (b) any defense that
089367.000006 605574230.3
may arise by reason of the incapacity, lack of authority, death or disability of any other person or
entity or the failure of Vernon to file or enforce a claim against the estate (in administration,
bankruptcy or any other proceeding) of any other Person; (c) any demand, present for payment,
protest and notice of protest, dishonor and nonpayment and all other notices, except as expressly
required herein; (d) any defense based upon an election of remedies, splitting a cause of action or
merger of judgments by Vernon; (e) any right or claim of right to cause a marshalling of the
assets of Guarantor or Pechiney; (f) any principle or provision of law, statutory or otherwise,
which is or might be in conflict with the terms and provisions of this Agreement; and (g) any
modifications of the Purchase Agreement or any Obligations of Guarantor by operation of law or
by action of any court, whether pursuant to the Bankruptcy Reform Act of 1978, as amended, or
any other debtor relief law (whether statutory, common law, case law or otherwise) of any
jurisdiction whatsoever, now or hereafter in effect, or otherwise (except to the extent that such
modifications were approved in writing by Vernon).
6. Miscellaneous.
a. Unimpaired Liability. Except as provided herein, the liability of Guarantor under this
Agreement shall in no way be limited or impaired by (i) any extensions of time for
performance required hereby or any other agreement, (ii) any other amendments to,
modifications of, or supplements to any obligations of any party hereto, (iii) any sale or
transfer of all or part of the Property, (iv) the accuracy or inaccuracy of the
representations and warranties made by any other party hereto or in any other document
relating to the matters covered hereby, or (v) the release of any Person from performance
or observance of any of the agreements, covenants, terms or condition contained herein
or in any other document relating hereto by operation of law, voluntary act, or otherwise.
b. Time. Time is of the essence in the performance of Guarantor's obligations hereunder.
c. Attorneys' Fees. If any party shall bring an action or proceeding against the other party
by reason of the breach or alleged violation of any term or obligation hereof, or for the
enforcement or interpretation of any provision of this Agreement, the prevailing party in
such action or proceeding shall be entitled to its reasonable costs and expenses of suit,
including, but not limited to reasonable attorneys' fees, which shall be payable whether
or not such action is prosecuted to judgment.
d. No Waiver. No waiver by any party of the performance or satisfaction of any covenant
or condition shall be valid unless in writing, nor shall it be considered to be a waiver by
such party of any other covenant or condition hereunder.
e. Entire Agreement. This Agreement contains the entire agreement between Guarantor and
Vernon with respect to the Obligations. This Agreement may only be modified by
subsequent written agreement signed by the party to be charged.
f. Further Assurances. Each party shall execute and deliver to the other party all such
documents that such other party may reasonably require to effect, confirm or otherwise
perfect the covenants and agreements of the parties contemplated by this Agreement.
g. Successors. This Agreement shall bind and inure to the benefit of the parties hereto and
to their respective successors and assigns; provided, however, that none of the rights or
obligations of Guarantor hereunder shall be transferred or assigned by Guarantor without
the prior written consent of Vernon, which consent may be granted or withheld in
089367.000006 606674230.3
Vernon's sole discretion. Subject to the foregoing, Guarantor may delegate its duties
hereunder but, no such delegation shall release Guarantor from its obligations hereunder.
h. Counterparts and Effectiveness. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which shall constitute one and the same
agreement, and this Agreement shall only be effective if a counterpart is signed by all
parties hereto.
i. Severability. In the event any provision of this Agreement shall be held to be invalid or
unenforceable by any court of competent jurisdiction, such holding shall not invalidate or
render unenforceable any other provision hereof.
j. No Third Party Beneficiaries. The parties hereto agree that it is their specific intent that
no third party shall be a party to or a third party beneficiary of this Agreement. This shall
not, however, affect the rights of any party pursuant to a separate agreement.
k. JURY WAIVER. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH
PARTY HERETO HEREBY VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN
RESOLVING ANY DISPUTE (WHETHER BASED UPON CONTRACT, TORT OR
OTHERWISE) OF ANY KIND WHATSOEVER BETWEEN ITSELF AND ANOTHER
PARTY HERETO ARISING OUT OF OR IN ANY WAY RELATED TO THE
PROPERTY OR THIS AGREEMENT. THIS PROVISION IS A MATERIAL
INDUCEMENT TO EACH PARTY ENTERING INTO AND PERFORMING ITS
OBLIGATIONS UNDER THIS AGREEMENT.
1. Construction. The language in all parts of this Agreement shall be in all cases construed
simply according to its fair meaning and not strictly for or against any of the parties
hereto. Section headings of this Agreement are solely for convenience of reference and
shall not govern the interpretation of any of the provisions of this Agreement. References
to "Sections" are to Sections of this Agreement, unless otherwise specifically provided.
All references made (a) in the neuter, masculine or feminine gender shall be deemed to
have been made in all such genders, and (b) in the singular or plural shall be deemed to
have been made, respectively, in the plural or singular as well. The word "Person" shall
include a natural person and any legal entity.
in. Governing Law. This Agreement shall be governed by and construed under the laws of
the State of California, without regard to conflicts of law principles.
n. Notices. All notices provided for herein may be telecopied/facsimiled (with machine
verification of receipt), sent by Federal Express or other overnight courier service,
personally delivered or mailed registered or certified mail, return receipt requested. If a
notice is sent by telecopy/facsimile, it shall be deemed given when transmission is
complete if (a) a confirmgtion of successful transmission is contemporaneously printed
by the transmitting telecopy machine and (b) a copy of the notice is sent to the recipient
by overnight courier for delivery on the business day next following the date of telecopy
transmission. If a notice is personally delivered, sent by overnight courier service or sent
by registered or certified mail, it shall be deemed given upon receipt or refusal of
delivery. The address to be used in connection with notices are as set forth immediately
under the parties signature herein below, or such other address as a party shall from time
to time direct by notice given in accordance with this Section I Itn1.
089367.000006 605674230.3
o. California Waivers. Guarantor waives, to the fullest extent allowed by applicable law,
any rights Guarantor might have pursuant to the terms of Sections of the California Civil
Code or Code of Civil Procedure, or under similar statutes or case law in effect in the
jurisdiction where Guarantor resides or in the State of California including without
limitation the following: (a) the benefit of any statute of limitations affecting Guarantor's
liability hereunder or the enforcement thereof, including, without limitation all rights and
benefits, if any, arising under Section 359.5 of the California Code of Civil Procedure, (b)
all rights and benefits arising under applicable law, including, without limitation, Section
2809 of the California Civil Code, purporting to reduce Guarantor's Obligations in
proportion to the principal Obligations, and (c) without limiting the generality of the
foregoing or any other provision hereof, Guarantor waives all rights and benefits which
might otherwise be available to Guarantor under applicable statutes or case law of the
jurisdiction governing this Agreement where Guarantor resides or where any real
property securing the Obligations is located, including, without limitation, Division
Third, Part 4, Title 13 of the California Civil Code Sections 2810, 2819, 2839, 2845,
2849, 2850, 2899, and 3433 regarding any loss of rights Guarantor may suffer by reason
of any rights, powers, or remedies of Pechiney in connection with any laws limiting,
qualifying or discharging Pechiney's obligations under the Purchase Agreement or other
agreements between the parties.
[Remainder of page intentionally left blank; Signatures on the following page]
089367.000006 605574230.3
GUARANTOR:
Kennecott Holdings Corporation
a Utah corporation
By:
Name:
Title:
ADDRESS FOR NOTICES:
[Guarantor]
Attn:
F: _
E:
With a copy to:
Pechiney Cast Plate Inc.
4700 Daybreak Parkway
South Jordan, Utah 84095
Attention: Cheree Finan
Baker Hostetler LLP
11601 Wilshire Boulevard
Suite 1400
Los Angeles, CA 90025-7120
Attn: Bruce Greene, Esq.
F: 310.820.8859
E: b ene(a)bakerlaw.com
089367.000006 605874230.3
VERNON:
City of Vernon
By:
Name:
Title:
Approved as to form:
DLA Piper LLP (US), Special Counsel to Buyer
ADDRESS FOR NOTICES:
City of Vernon, California
4305 Santa Fe Avenue
Vernon, CA 90058
Attn: City Administrator
F: 323.826.1491
E: mwhitworth(a.ci.vemon.ca.us
With a cgpv to:
City of Vernon, California
4305 Santa Fe Avenue
Vernon, CA 90058
Attn: City Attorney
F: 323.826.1491
E: arodriguezOci.vernon.cam
City of Vernon, California
4305 Santa Fe Avenue
Vernon, CA 90058
Attn: Mr. Alex Kung
F: 323.826.1491
E: akungna ci.vernon.ca.us
DLA Piper LLP (US)
550 S. Hope Street
Suite 2300
Los Angeles, CA 90071
Attn: Michael Hamilton, Esq.
F: 213.330.7536
E: michael.hamilton@dlaR er com
089367.000006 605674230.3
0 RECEIVE®
APR 0 7 2015
CITY CLERK'S OFFICE STAFF REPORT
CITY ADMINISTRATION
DATE: April 7, 2015
TO: Honorable Mayor and City Council
FROM: Mark C. Whitworth, City Administrator
RE: Approval of the 2nd Amendment to the Purchase and Sales Agreement with
Pechiney Cast Plate, Inc. for property located at 3200 Fruitland Avenue
Recommendations
It is recommended that the City Council:
Find that approval of the 2nd amendment proposed in this staff report is exempt from the
California Environmental Quality Act (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.
2. Approve the 2id Amendment to the Purchase and Sales Agreement with Pechiney Cast
Plate, Inc, for the property located at 3200 Fruitland Avenue, in substantially the same
form as submitted herewith.
Background
At the March 22, 2006 meeting the City Council approved Resolution No. 8995 which approved
the purchase of approximately 263 acres of unimproved property located at 3200 Fruitland from
Pechiney Cast Plate, Inc. (the "Buyer") for $36,500,000 for the purpose of developing a 943
megawatt power plant. The City deposited $26,200,000 into Escrow, of which $25,600,000 was
released to Pechiney and the balance of $600,000 remaining in Escrow. The remaining balance
of $10,300,000 was to be paid on completion of the Below Grade Work and Remediation Work
Plan. On May 3, 2006 the City Council adopted Resolution No. 9030 which clarified and
redefined issues relating to the Demolition Work Plan and Remediation Work Plan which were
entered into on June 15, 2006.
Due to various economic and community concerns, the City decided to suspend and ultimately
forego the power plant project. Since then, the City began renegotiations with Pechiney to
acquire a portion of the property. Below is a summary of the terms and conditions of the 2',d
amendment.
1) Property: City will purchase approximately 14.53 acres (633,083 square feet) of land
instead of the entire 26.7 acres as originally agreed to in the original purchase and sales
agreement. This includes an additional .17 acres (7,496 square feet) of land the City is
purchasing from Pechiney to provide better access along Boyle Avenue. The remaining
12.17 acres (530,125 square feet) will be retained by Pechiney.
2) Sewer Capacity Units: The 26.7 acres have been allocated 940 sewer capacity units by
the Los Angeles County Sanitation District. The City has negotiated acquiring 740 sewer
capacity units valued at approximately $3,227,880. Acquiring such additional units is
contingent upon negotiating a reasonable purchase price with a future buyer of such units.
If no purchase price is agreed to between the City and a future buyer by April 17, 2015,
the credits will revert back to Pechiney Cast Plate Inc., unless otherwise determined and
agreed to by the City.
3) Price: The amended Purchase Price is reduced to $24,173,085. The City has previously
deposited $26,200,000 into Escrow. As a result of the price reduction the City will
receive the following:
a) $600,000 and interest accrued held in Escrow since 2006.
b) $1,426,915 from Pechiney in monthly installments of $500,000 beginning
July 11, 2015.
4) Closing Date: June 11, 2015
5) Conditions of Closing:
Buyer's Conditions
a) Based on Section 9.1 (n) of the original agreement, the City shall have 10 days
following receipt of written notice of a Material Change within which to satisfy itself
with the changes.
b) Based on Section 9.1(o) of the original agreement, the Seller shall deliver all
documents and due performance by Seller of each undertaking and agreement to be
performed by the Seller.
c) Based on Section 9.1(p) of the original agreement, each representation and warranty
of Seller is true and correct in all material respects as of the closing.
d) Recording of Lot Line Adjustment
c) City shall provide to Pechiney a written completion notice for uncompleted work in
relating to the below grade demolition and PCB remediation work (Property Work).
However, this notice would not relieve Pechiney from any liability to perform future
Property Work.
Seller's Conditions
a) Buyer Performance —Buyer shall deliver all documents and due performance by
Buyer of each undertaking and agreement to be performed by Buyer.
b) Warranties — Each representation and warranty of Buyer is true and correct in all
material respects as of closing.
c) Health Department Confirmation — Pechiney shall receive written confirmation from
Vernon's Health Department that it has no jurisdiction over the remediation of the
property that jurisdiction is presently held with EPA and DTSC.
d) Recording of Lot Line Adjustment
6) Failure to Close: The City will have the following remedies if conditions of closing have
not been satisfied:
a) Prior to the Closing Date, the PSA shall be deemed terminated and Pechiney
would refund the City the $25,600,000 it originally deposited, less any escrow
or title cancellation charges.
b) Require Pechiney to complete the Uncompleted Work within 90 days. If the
Uncompleted Work takes longer than 90 days the City could elect to close
escrow on the property and allow Pechiney to complete the Uncompleted
Work as diligently as possible.
7) Approvals:
a) City approves the Below -Grade Demolition Work Plan,
b) City approves the Remediation Work Plan.
c) City acknowledges and agrees that a restrictive covenant may be recorded.
8) Indemnity: The City will receive a 10 year indemnity from Kennecott Holding
Corporation after the closing date.
Fiscal Impact
For fiscal year 2015/2016 the City would anticipate receiving approximately $2,026,915 in cash
and the deed to the property.