Resolution No. 2015-071*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. 2015-71
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND RATIFYING THE EXECUTION OF A
SECOND AMENDMENT TO AGREEMENT REGARDING ASSIGNMENT
AND ASSUMPTION OF PURCHASE AND SALE AGREEMENT BY
AND BETWEEN THE CITY OF VERNON AND FRUITLAND OWNER,
LLC FOR PROPERTY LOCATED AT 3200 FRUITLAND AVENUE
WHEREAS, on March 22, 2006, the City Council of the City of
Vernon adopted Resolution No. 8995, as amended on May 3, 2006, April 7,
2015, and June 11, 2015, approving a Standard Offer, Agreement and
Escrow Instructions and Addendum with Pechiney Cast Plate, Inc.
("Pechiney") for the purchase of property located at 3200 Fruitland
Avenue (the "Property"); and
WHEREAS, on August 18, 2015, the City Council of the City of
Vernon adopted Resolution No. 2015-57, as amended on August 21, 2015,
approving an Agreement regarding Assignment and Assumption of Purchase
and Sale Agreement (the "Agreement") by and between the City of Vernon
("City") and Fruitland Owner, LLC ("COX") for property located at 3200
Fruitland Avenue to assign the City's right, title and interest in, to
and under the Agreement to COX; and
WHEREAS, on October 27, 2015, the City and COX executed a
Second Amendment to the Agreement (the "Amendment") to amend certain
provisions of the Agreement including, but not limited to the due
diligence period, closing date, conditions of closing, subject to the
ratification by the City Council; and
WHEREAS, the City Council of the City of Vernon desires to
approve the Amendment and ratify the execution thereof.
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 and ratifies the execution of the Second Amendment to
Agreement regarding Assignment and Assumption of Purchase and Sale
Agreement with Fruitland Owner, LLC (the "Amendment"), a copy of which
is attached hereto as Exhibit A.
SECTION 4: 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 5: 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 Fruitland Owner, LLC.
- 2 -
SECTION 6: 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 17th day of November, 2015.
ATTEST:
Ma is E. ala
City Clerk
Name: W. Michael McCormick
Title: Mayor -
- 3 -
STATE OF CALIFORNIA )
) ss
COUNTY OF LOS ANGELES )
I, Maria E . Ayala City Clerk / Pe _�; ����f the City
of Vernon, do hereby certify that the foregoing Resolution, being
Resolution No. 2015-71, 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, November 17, 2015, and thereafter was
duly signed by the Mayor or Mayor Pro-Tem of the City of Vernon.
Executed this day of November, 2015, at Vernon, California.
(SEAL)
aria . Ayala
City Clerk / P-r t j e�
- 4 -
EXHIBIT A
Second Amendment to
Agreement Regarding Assignment and Assumption of Purchase and Sale Agreement
THIS SECOND AMENDMENT TO AGREEMENT REGARDING ASSIGNMENT
AND ASSUMPTION OF PURCHASE AND SALE AGREEMENT (this "Amendment") is
made and entered into as of OctoberX_, 2015 (the "Effective Date"), by and between the City
of Vernon ("City"), and Fruitland Owner LLC, a Delaware limited liability company ("COX"),
City and COX are each referred to herein as a "Party" and are collectively referred to as the
"Parties".
RECITALS
A. City, as buyer, and Pechiney Cast Plate, Inc., as seller ("Seller"), are parties to
that certain Standard Offer, Agreement and Escrow Instructions for the Purchase of Real Estate
dated as of March 20, 2006 ("Original Agreement"), with attached Addendum dated March 20,
2006 ("Addendum"), as amended by that certain First Amendment to the same dated as of
June 15, 2006 ("First Amendment"), as further amended by that certain Second Amendment
dated as of April 7, 2015 (the "Second Amendment"), as further amended by that certain Third
Amendment dated as of June 11, 2015 (the "Third Amendment"). The Original Agreement as
amended by the Addendum, the First Amendment, the Second Amendment and the Third
Amendment shall hereinafter be referred to as the "Purchase Agreement".
B. Seller owns fee simple title to certain real property located in Vernon, California
and described more particularly in the Purchase Agreement (together with the Buyer UP Land,
(as referenced in Section 4.1 of the Second Amendment) the "Property").
C. Pursuant to the terms and conditions of the Purchase Agreement, City has agreed
to buy, grid Seller has agreed to sell to City, the Property.
D. Pursuant to the terms and conditions of that certain Agreement Regarding
Assignment and Assumption of Purchase and Sale Agreement, dated as of August 4, 2015,
executed by and between the City and COX, as amended by that certain Amendment to
Agreement Regarding Assignment and Assumption of Purchase and Sale Agreement, dated as of
August 21, 2015 (as amended, the "Assignment"), City assigned its right, title and interest in, to
and under the Purchase Agreement to COX.
E. The Parties desire to further amend the Assignment as set forth herein.
F. All capitalized terms not otherwise defined herein shall have the meanings given
to such terms in the Assignment.
AGREEMENT
For good and valuable consideration, the receipt of which is hereby acknowledged, COX
and City hereby agree as follows:
WV-ST\261971756.8
1. Amendments.
a. Due Diligence Period. Notwithstanding anything to the contrary contained in the
Assignment, as consideration for this Amendment, the parties hereby agree as
follows:
i. The Due Diligence Period has ended. COX has no further rights to extend
the Due Diligence Period;
ii. No later than one (1) business day following the full execution and
delivery of this Amendment, and as a condition precedent to the
effectiveness of this Amendment, the Escrow Agent shall disburse the
entire Deposit in the amount of $250,000.00 to the City pursuant to
unilateral instructions received from the City and without the need for any
approval of, or instruction from, COX;
iii. Commencing on November 2, 2015, and on the first calendar day of each
month thereafter until Closing (or the succeeding business day if the 1st
day of the calendar month is not a business day), COX shall pay an
additional $25,000.00 per month to the City as consideration for the
Extension Fee payable by the City to Seller under the Purchase
Agreement; and
iv. For avoidance of doubt, the amounts released to the City pursuant to
subparagraphs 1(a)(ii) and 1(a)(iii) above shall not be credited against the
Purchase Price at Closing and are deemed fully earned, and
nonrefundable, upon payment to the City. The same are independent
consideration for City's agreements herein.
v. Without limitation to the foregoing, it is acknowledged that upon the
release of the amounts set forth in subparagraph I(a)(ii) above, the Deposit
will have been reduced to zero. As such, any and all references to the
Deposit in the Agreement, including any refund or return of the same to
COX, are of no further force or effect. In addition, because the Deposit
has been reduced to zero, COX's obligation under Section 3.4 of the
Purchase Agreement to deliver at Closing the "balance of the Purchase
Price" means that COX will deliver at Closing the entire amount of the
Purchase Price. No portion of the amounts of the Deposit released to
Seller hereunder will be credited to the Purchase Price, as noted in
subparagraph l (a)(iv) above.
b. Closing. The first sentence of Section 9 of the Assignment is hereby amended in
its entirety as follows: "The closing of the assignment of the Purchase Agreement
contemplated by this Agreement ("Closing") shall be the date that is thirty (30)
days after the date that the conditions precedent to Closing, under Section 11.4
and 11.5 of this Agreement, have been satisfied (the "Closing Date"); provided,
however, in no event shall the Closing Date occur later than December 30, 2015
(the "Outside Closing Date"), as such date may be extended as provided herein.
2
WESTti261971756.8
Notwithstanding the foregoing, either the City or COX shall have the unilateral
right upon written notice thereof to the other parry to extend the Outside Closing
Date on one or more occasions for up to sixty (60) days in the aggregate in order
to satisfy the conditions precedent to Closing set forth in Sections 11.4 and 11.5.
If the conditions precedent under Section 11.4 and/or 11.5 of this Agreement have
not been satisfied by the Outside Closing Date, subject to City's and COX's right
to extend the same, COX may either (i) waive such conditions and proceed to
Closing or (ii) terminate the Agreement by notice to the City, in which case
neither party shall have any further obligations hereunder, except to the extent of
any obligations which are stated to survive."
c. Power Purchase Agreement. The parties hereby agree that the form of the Power
Purchase Agreement and related Added Facilities Agreement referenced in
Sections 10.3 and 11.3 of the Assignment have been approved by the parties in
the forms attached hereto as Exhibit A-1 and A=2.
d. Land Use Covenant. The parties hereby agree that that certain Land Use
Covenant and Agreement with Environmental Restrictions, in the draft form
provided by the relevant governmental agencies, has been approved by COX, a
copy of which is attached hereto as Exhibit B.
e. COX's Conditions Precedent. Section 11 of the Assignment is hereby amended
to add the following as Section 11.4 and Section 11.5 thereof
"l 1.4 The Conditional Use Permit for rPlanet Earth Los Angeles LLC shall have
been obtained.
11.5 The Soil Management Plan as referenced in the Land Use Covenant and
Agreement with Environmental Restrictions, shall have been approved by the
California Department of Toxic Substances Control and any other necessary
governmental agencies."
A copy of the Soil Management Plan, in its current form, is attached hereto as
Exhibit C. COX has reviewed and approves of the Soil Management Plan in such
form.
f. Condition Precedent to this Amendment. Notwithstanding anything to the
contrary contained herein, the parties hereto acknowledge and agree that, for the
benefit of the City, the effectiveness of this Amendment is contingent upon Xebec
Realty Partners, or its subsidiary that owns the property adjacent to the Property
(which it acquired from Seller), executing and delivering to City such additional
documents, if any, as may be reasonably be necessary to further memorialize the
transfer to the Property of certain sewer capacity water discharge units from the
adjacent land, as noted in the document attached hereto as Exhibit D.
2. Miscellaneous.
3
WES1%261971756.9
a. Except to the extent expressly modified by this Amendment, the Assignment is
ratified and remains in full force and effect. To the extent of any inconsistency between this
Amendment and the Assignment, the terms and conditions of this Amendment shall control.
b. This Amendment may be executed in multiple counterparts, all of which, taken
together, shall constitute one document. This 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.
[Signature Pages Follow]
4
WESM61971756.8
IN W11'NLSS WHEREOF. the Parties have caused their duly authorized representatives
to execute this Amendment as of the Effective Date.
CITY:
Cih, of Vernon
By
Name: ' - -
Name: Michael W. McCormick
Title: Mayor _
Attest: r~
B _.(
Name: M ria E. Aval�
Title: Citv Clerk - --- ---
Approved as to form:
DLA Piper LLP (US), Special Counsel to Buyer
[Signatures continue on next page]
W1,S'1".-1611,7i 7jt,.8
COX:
FRUITLAND OWNER LLC,
a Delaware limited liability company
By: Fruitland JV LLC,
a Delaware limited liability company,
its Sole Member
By: Fruitland COX Venture LLC,
a Delaware limited liability company,
its Sole Member
By: CAM Fruitland Capital LLC,
a Delaware limited liability company,
its Sole Member
By: Cohen Holdings 2015 LLC,
a Delaware limited liability company,
its Sole Member
Name: Bradley S. Cohen
Title: President & CEO
[Signatures continue on next page]
W EST�261971756.8
ESCROW AGENT:
ESCROW AGENT, by its execution below, hereby accepts (as of the date first
above written) the foregoing Amendment and agrees to act as Escrow Agent under the
Assignment in strict accordance with its terms.
FIRST AMERICAN TITLE INSURANCE
COMPANY
By: ( - /
•
Name: 7YALrece "
Its:
WESM61971756.8
FORM OF ADDED FACILITIES AGREEMENT
WES11261971756.8
CITY OF VERNON
ADDED FACILITIES AGREEMENT
1. PARTIES: The Parties to this Added Facilities Agreement ("Agreement") are
RPLANET EARTH LOS ANGELES, LLC, a Delaware limited liability company ("Customer")
and the City of Vernon, a California municipal corporation ("City"), hereinafter referred to
individually as "Party" and collectively as "Parties."
2. RECITALS:
2.1. City and the Customer (or, an affiliate of the Customer) are entering into
this Agreement with respect to the electric service delivery to the property located at 3200
Fruitland, Vernon, California (the "Property").
2.2. Customer has requested to receive electric service from City at a single or
totalized point of 16 kV delivery starting on or about the Start Date (as defined below) at an
initial service level of 5,750 kW demand based on an estimated 9,000 kW of connected load with
a potential service level of 11,000 kW demand based on an estimated 19,000 kW of connected
load.
2.3. Parties agree that City shall provide the design, engineering, procurement,
construction, installation, ownership, and maintenance of the electric facilities described in
Exhibit A, and hereinafter referred to as "Added Facilities", the cost of which shall be paid solely
by the Customer in accordance herewith. .
2.4. Parties agree that in -lieu of constructing a 66 kV substation at the
Customer property, Customer shall pay to City $1,000,000 in aid of construction to upgrade the
City' electrical substation transformers (the "In Lieu Fee").
2.5. Parties agree that the City shall extend a new 16 KV line from inside the
City's electrical substation to the customer's property line to be identified as a 16 KV line
extension (the "Line Extension"). Customer shall pay for the Line Extension in accordance
herewith. For purposes of determining the Added Facilities Installation Costs and Added
Facilities Monthly Charge, the line extension is excluded from the list of Added Facilities.
2.6. Parties agree that Customer shall deliver to an escrow account established
by the City and Customer the amount specified herein, which amounts will be used to pay to the
City and/or its contractors all Added Facilities Installation Costs (as defined below) and Line
Extension Costs (as defined below).
3. AGREEMENT: Parties agree to the terms and conditions set forth herein,
including Exhibits A through E, attached hereto and incorporated herein by this reference.
4. EFFECTIVE DATE AND TERM:
4.1. This Agreement shall be effective upon execution by the Parties and
approval by the City Council of the City of Vernon.
/-0000 1/1 0-28-15/jmd/jmd WES R263631313.4
4.2. This Agreement shall continue in effect until (a) Customer gives notice of
termination of service in accordance with Vernon's Rules for Electric Service (as amended, the
"Electric Service Rules"), (b) this Agreement is terminated by City due to an Event of Default by
Customer (c) this Agreement is terminated by City due to a Failure to Commence Operations by
Customer, ten (10) business days after notice from City to Customer, or (d) this Agreement is
terminated pursuant to Section 19;
4.3. If this Agreement is terminated, Customer shall pay within ten (10)
business days after notice from City (a) all unpaid Added Facilities Installation Costs, Added
Facilities Monthly Charges and any other amounts owed by Customer hereunder, in each case
through the date of termination, and (b) the Termination Fee, as described on Exhibit C.
Customer's obligations to pay such amounts shall survive the termination of this Agreement. If
the Customer has elected to terminate this Agreement, such termination shall not be effective
unless and until such amounts are paid in full.
5. DEFINITIONS: The following terms, when used herein with initial
capitalization, whether in the singular or the plural, shall have the following meanings:
5.1. Added Facilities: The facilities to be designed, engineered and
constructed as specified in Exhibit A. all of which are being allocated for the Customer's use and
benefit as Added Facilities. Any upgrades or improvements associated with such Added
Facilities will be mutually agreed upon by Customer and City in writing and will thereafter
automatically become part of the Added Facilities.
5.2. Added Facilities Installation Costs: All costs and expenses incurred by
City in relation to the design, engineering, procurement, construction, and installation of the
Added Facilities, including without limitation the reasonably allocated costs of internal City
employees involved with such design, engineering, procurement, construction and installation.
Customer acknowledges that the Added Facilities Installation Costs may be based on prevailing
wages and other regulatory requirements. The Added Facilities Installation Costs shown on
Exhibit A are estimates only. If the final Added Facilities Installation Costs differ from the
estimates, the Added Facilities Installation Costs will be equal to such final amount and Exhibit
A, and related calculations in Exhibits B and C. shall be deemed automatically amended to
reflect the same.
5.3. Added Facilities Monthly Rate: The Added Facilities Monthly Rate
pursuant to Exhibit B.
5.4. Agreement and Amendments: This Agreement, including all attachments
and exhibits hereto, as may be amended from time to time. Modifications and amendments to
this Agreement shall be valid and enforceable only if in writing and signed by the Parties, or as
otherwise expressly provided herein.
5.5. Added Facilities Monthly Charge: The charge to Customer for Added
Facilities that is payable monthly to City as outlined in Exhibit C, as may be modified in
accordance herewith. The Added Facilities Monthly Charge recovers replacement, operations
and maintenance of all facilities that are allocated for Customer's exclusive use consisting of
/-00001/ 10-28-15/jmd/jmd -2- W EST1263631313.4
distribution transformers, pad -mounted switches, pad -mounted primary metering cabinets, 16
KV cabling from pad -mounted switches to distribution transformers and 600 Volts cabling from
the transformers to the customer furnished electric panels and low voltage metering and all
necessary hardware to deliver a reliable and efficient power delivery. The Added Facilities
Monthly Charge does not include the costs of the Line Extension, as the City will be fully
responsible for its upkeep.
5.6. Completion Date. December 15, 2016, subject to uncontrollable forces as
described in Section 11 below.
5.7. Effective Date. The date set forth in Section 30 below.
5.8. In Lieu Fee. $1,000,000 in cash and immediately available funds, as
contemplated by Section 2.5.
5.9. Line Extension. As generally described in Section 2.6, and more
particularly described on Exhibit A-1.
5.10. Line Extension Costs. All costs and expenses incurred by City in relation
to the design, engineering, procurement, construction, and installation of the Line Extension,
including without limitation the reasonably allocated costs of internal City employees involved
with such design, engineering, procurement, construction and installation, estimates of which are
provided on Exhibit A-1. Customer acknowledges that the Line Extension Costs may be based
on prevailing wages and other regulatory requirements. The Line Extension Costs shown on
Exhibit A-1 are estimates only. If the final Line Extension Costs differ from the estimates, the
Line Extension Costs will be equal to such final amount and Exhibit A-1, and related
calculations on Exhibit C, shall be deemed automatically amended to reflect the same.
5.11. Reserve Amount. An amount equal to two hundred percent of the
estimated Added Facilities Installation Costs and Line Extension Costs, which based on Exhibits
A and A-1 as of the Effective Date and as applied to Phase 1 of the Added Facilities only, is
equal to $2,300,000.
5.12. Services: The design, engineering, procurement, construction, installation,
ownership, replacement, operation and maintenance of the Added Facilities.
5.13. Start Date. The date that is thirty (30) days following the date upon which
the City has completed the installation of the Added Facilities.
6. ADDED FACILITIES; LINE EXTENSION:
6.1. The Added Facilities will be located at the Property. Added Facilities
consist of, among other things, construction and installation of distribution transformers and
apparatus delivering multiple 277/480 volt service points for the benefit of the Customer on the
terms and conditions set forth in this Agreement. The Added Facilities allocated for Customer's
exclusive use shall be installed in or on Customer's furnished underground infrastructure
consisting of conduit banks, transformer concrete pads, switching concrete pads, primary
/-0000 1/ 1 0-28-15/jmd/jmd -3- WEST\263631313.4
metering concrete pads and protective barriers, all of which are to be provided by Customer at
Customer's sole cost and expense.
6.2. City shall perform all of the Services related to the Added Facilities and
the Line Extension.
6.3. Subject to Customer's fulfillment of the conditions precedent set forth in
Section 19 below, City will (a) commence performance of the design and construction of the
Line Extension and Phase 1 of the Added Facilities, as described on Exhibit A, upon full
execution of this Agreement and (b) use commercially reasonable efforts to install the Line
Extension and Phase 1 of the Added Facilities by the Completion Date, so that they are fully
operational upon the issuance of a "Certificate of Occupancy" for the Property (which is
estimated by Customer to be obtained on or before December 31, 2016).
6.4. Added Facilities and the Line Extension shall at all times remain the
property of City.
6.5. At Customers election, the Added Facilities are being constructed in two
phases as described on Exhibit A. The facilities constructed in Phase 1 shall be adequate to serve
the initial 5,750 kW contract demand. The Added Facilities constructed in Phase 2 shall be
adequate to accommodate Customer's electric demand of with a potential of 11,000 kW.
6.6. Customer shall install the underground infrastructure consisting of conduit
banks, concrete pads and protective barriers for all phases prior to final paving of the Property
and in all cases in a timely manner to ensure City's ability to perform the installation of the
Added Facilities in accordance herewith.
6.7. City shall exercise commercially reasonable efforts to complete the
installation of Phase 1 of the Added Facilities and Line Extension per the Project Schedule
included as Exhibit D. However, City shall not be liable for any cost or damage incurred by
Customer because of any delay in the commencement, progress or completion of the installation
of any Added Facilities or the Line Extension.
6.8. City shall construct and maintain the Added Facilities and Line Extension
diligently pursuant to all applicable federal, state and local safety codes, regulations, and laws,
including but not limited to the requirements of California's General Orders No. 95, 128 and 165.
Customer shall have the exclusive right of use of the Added Facilities located on the property.
6.9. Prior to the date on which City completes the Added Facilities and
provides electrical service to Customer at the Property, Customer shall have obtained and paid
for all necessary local and state licenses and permits for operation of its business including City
of Vernon building, electrical and mechanical permits, health permit, certificate of occupancy,
business license, etc. City shall not provide electrical service under this Agreement until
Customer has notified City in writing of its date of commencing operations, which shall not
occur prior to the date on which Customer has obtained all of such licenses and permits.
6.10. Notwithstanding anything to the contrary herein, City will not commence,
and shall have no obligations with respect to, Services relating to Phase 2 of the Added Facilities
/-00001 / 10-28-15/jmd/jmd -4- W ESn263631313.4
Agreement shall ever be construed to create an association, joint venture, trust or partnership, or
to impose a trust or partnership covenant, obligation, or liability on or with regard to either Party.
Each Party shall be individually responsible for its own covenants, obligations, and liabilities as
provided in this Agreement. Neither Party shall be under the control of the other Party. Neither
Party shall be the agent of or have a right or power to bind the other Party without such other
Party's express written consent.
15. NO THIRD -PARTY RIGHTS: The parties do not intend to create rights in, or to
grant remedies to, any third Party as a beneficiary either of this Agreement or of any duty,
covenant, obligation, or undertaking established herein.
16. ARBITRATION: The Parties agree that any and all disputes arising out of or in
relation to this Agreement, including without limitation any action in tort, shall be resolved
exclusively, finally and conclusively by arbitration in Los Angeles County, California under the
auspices of and pursuant to the rules of the Judicial Arbitration & Mediation Services, Inc.
(JAMS). Each Party will select an arbitrator. Those two arbitrators will then select a third. The
three member panel will make the final decision. All decisions of the arbitrators shall be in
writing, and the arbitrators shall provide written reasons for their decision. The arbitration
decision shall be final, unappealable and binding on the parties. Notwithstanding the foregoing,
the Parties shall be permitted to access the court system to enforce any arbitration award or to
obtain injunctive relief. The exclusive jurisdiction and venue for any such action shall be the
Superior Court of California, Los Angeles County.
17. ATTORNEYS' FEES: If either Party institutes an action or legal proceeding
arising out of or related to this Agreement or the relationship of the Parties or their rights or
duties in connection with the matters set forth in this Agreement, whether sounding in tort,
contract, or otherwise, the prevailing Party in such action or proceeding shall be entitled to
recover from the other party all costs and expenses, including all costs and reasonable attorneys'
fees, in addition to any other remedy awarded by the arbitration panel.
18. INSURANCE: Customer shall, for the duration of this Agreement, obtain and
maintain at its own expense, premises liability coverage with a minimum combined single limit
of $1,000,000 per occurrence and provide City with proof of insurance providing and
maintaining the coverages and endorsements set forth herein. Said proof of insurance shall also
provide that said policy or policies shall not be canceled or materially reduced in coverage
without giving at least thirty (30) days prior written notice to the City. The insurance coverage
as listed herein, shall be properly endorsed to include those contractual obligations which may be
identified further within this Agreement and shall be endorsed to provide City all the rights and
privileges of an additional insured. Customer shall cause its insurers to issue, including but not
limited to, Certificates of Insurance or, upon request, certified copies of the insurance policies
evidencing that the coverages and policy endorsements required under this Agreement, are
maintained in force.
19. CONDITIONS PRECEDENT:
subject to the following conditions precedent:
City's obligations under this Agreement are
/-00001/ 10-28-15/jmd/jind -g- W EST\263631313.4
19.1. Within three (3) business days after the Effective Date, Customer shall
deliver to Commonwealth Land Title Insurance Company, Attention: Mai Ly Marsh ("Escrow
Agent"), in immediately available funds an amount equal to the Reserve Amount (the "Reserve
Funds"). City will be entitled to use the Reserve Funds for purposes of paying the Added
Facilities Installation Costs and Line Extension Costs. From time to time, as the City progresses
with the Services regarding the Added Facilities and/or Line Extension, the City may request a
disbursement from the Escrow Agent in order to pay Added Facilities Installation Costs and/or
Line Extension Costs. Escrow Agent shall, without further authorization or approval from
anyone, disburse the requested amount to City. If City at any time determines that the Reserve
Funds are insufficient to pay the Added Facilities Installation Costs and/or Line Extension Costs
(the insufficient amount being the "Deficiency"), Customer shall, within five (5) business days
after notice thereof from City, deliver to Escrow Agent an amount equal to 200% of such
Deficiency. Upon completion of the installation of the Added Facilities and Line Extension and
payment of all Added Facilities Installation Costs and Line Extension Costs, any balance of the
Reserve Funds remaining with the Escrow Agent shall be released and refunded to Customer
upon a joint written instruction of City and Customer.
19.2. Within three (3) business days after the Effective Date, Customer shall
have paid to City the In Lieu Fee.
19.3. If said conditions are not satisfied on or before the deadlines indicated,
and such failure continues for three (3) days after notice from City to Customer, City may
terminate this Agreement by notice to Customer.
19.4. As and when Customer elects for the City to proceed with Services
relating to Phase 2 of the Added Facilities, Customer shall cause to be deposited with Escrow
Agent Reserve Funds for the estimated Added Facilities Installation Costs relating to Phase 2.
Use of such funds will then be governed by Section 19.1 above. City will provide such estimate
at such time. The current estimate is set forth on Exhibit A.
20. EVENTS OF DEFAULT:
20.1. Any failure of a Party to perform its obligations hereunder that is not
cured by the applicable Party within ten (10) business days after delivery of notice of default
from the non -defaulting Party shall constitute an "Event of Default"; provided, however, that
such default (other than with respect to any obligation to pay money in accordance herewith)
shall not constitute an Event of Default if the applicable Party commences to cure the default
within such ten (10) business day period and diligently prosecutes the cure to completion and in
all events cures such default within sixty (60) days after the original notice of default.
20.2. In addition to any other remedies available at law or equity, City shall
have the right, at its option, to terminate this Agreement and to demand payment as described
herein upon the occurrence of an "Event of Default" by or with respect to Customer.
20.3. Upon demand by City following an Event of Default, Customer shall
immediately pay all accrued and unpaid amounts owing by Customer as of the date of
termination and the Termination Fee, as described in Exhibit C, calculated as of the date of
/-00001/10-28-15/jmd/jmd -9- WES R263631313.4
termination. The termination of the obligations of City will not terminate the obligation of
Customer until Customer has repaid City for any costs incurred pursuant to this Agreement.
20.4. Each of the following shall also constitute an Event of Default by
Customer: (a) the making by Customer of any general arrangement or assignment for the benefit
of creditors; (b) Customer becoming a "debtor" as defined in 11 U.S.C. §101 or any successor
statute thereto (unless, in the case of an involuntary petition filed against Customer, the same is
dismissed within 60 days); (c) the appointment of a trustee or receiver to take possession of
substantially all of Customer's assets located at the Property, where possession is not restored to
Customer within 30 days; or (d) the attachment, execution or other judicial seizure of
substantially all of Customer's assets located at the Property, where such seizure is not
discharged within 60 days; provided, however, in the event that any provision of this
subparagraph is contrary to any applicable law, such provision shall be of no force or effect, and
not affect the validity of the remaining provisions.
21. ASSIGNMENT: This Agreement shall bind and inure to the benefit of the Parties
and their respective successors and assigns; provided however, that, Customer shall not assign
this Agreement or any of its rights, duties, or obligations without the prior written consent of
City, which consent shall not be unreasonably withheld.
22. NO WAIVER: No delay or omission to exercise any right, power or remedy
accruing to a Party on any breach or default of the other Party under this Agreement shall impair
any such right, power, or remedy, nor shall it be construed to be a waiver of any such breach or
default, or any acquiescence in such breach or default occurring later; nor shall any waiver of
any single breach or default be considered a waiver of any other prior or subsequent breach or
default. Any waiver, permit, consent, or approval of any kind by a party of any breach or default
under this Agreement, or any waiver of any provisions or condition of this Agreement, must be
in writing and shall be effective only to the extent specifically set forth in that writing.
23. REMEDIES: All remedies, either under this Agreement or by law or otherwise
afforded to a Party, shall be cumulative and not alternative.
24. HEADINGS NOT BINDING: The use of headings in this Agreement is only for
ease of reference, shall have no legal effect and are not to be considered part or a term of this
Agreement.
25. SEVERABILITY: If any portion of this Agreement shall be held by a court of
competent jurisdiction to be invalid, void or otherwise unenforceable, the remaining provisions
shall remain enforceable to the fullest extent permitted by law. Furthermore, to the fullest extent
possible, the provisions of this Agreement (including, without limitation, each portion of this
Agreement containing any provision held to be invalid, void, or otherwise unenforceable that is
not itself invalid, void, or enforceable) shall be construed so as to give effect to the intent
manifested by the provision held invalid, void, or unenforceable.
26. GOVERNING LAW: This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of California, without regard to its conflict of
laws rules.
/-00001/10-28-15/jmd/jind WEST\263631313.4
27. COUNTERPARTS: This Agreement may be executed in counterparts, each of
which shall be deemed to be an original, but all of which, taken together, shall constitute one and
the same agreement.
28. GOVERNING DOCUMENTS: In the event of a conflict between this Agreement
and any other rules or agreements issued by the City of Vernon governing such Added Facilities,
this Agreement shall be primary.
29. SIGNATURE CLAUSE: The signatories hereto represent that they have been
appropriately authorized to enter into this Agreement on behalf of the Party for whom they sign.
30. Effective Date. This Agreement is hereby executed as of
(the "Effective Date").
CUSTOMER
RPLANET EARTH LOS ANGELES, LLC,
a Delaware limited liability company
By:
Name:
Title:
By:
Name:
Title:
THE CITY OF VERNON
M.
Michael McCormick, Mayor
ATTEST:
Maria E. Ayala, City Clerk
APPROVED AS TO FORM:
/-0000 1/1 0-28-15/jmd/jmd -11- WES n263631313.4
Hema Patel, City Attorney
/-00001/ 10-28- 15/jmd/jmd -12- WEST\263631313.4
EXHIBIT A
ADDED FACILITIES PLANS AND SPECIFICATIONS
Phase 1: Estimated Cost $800,000
Phase 1 consists of 5 pad -mounted transformers, 3 PME 16 KV pad -mounted switches, 2 16 KV
primary metering cabinets, 16 KV primary cables on the Customer property, low voltage conductors from
the transformers to the Customer furnished electrical panels, and low voltage metering.
Phase 2: Estimated Cost $450,000
Phase 2 consists of 5 pad -mounted transformers, 3 PME 16 KV pad -mounted switches, 16 KV
primary cables on the Customer property, low voltage conductors from the transformers to the Customer
furnished electrical panels, and low voltage metering.
/-0000 1/ 1 0-28-15/jmd/jmd -1- WES R263631313.4
EXHIBIT A-1
LINE EXTENSION PLANS AND SPECIFICATIONS
The line extension consists of extending a new 16 KV circuit from City's existing City's Substation
through City's existing conduit bank infrastructure along Fruitland Avenue and six (6) existing
manholes/vaults to the Customer's property line. The City shall own and maintain the new 16 KV circuit
similar to other existing 16 KV circuits it owns and the Customer shall neither have exclusive rights to the
line extension nor shall it pay for any Added Facilities Monthly Charges associated with the City cost for
replacement, operations and maintenance of the line extension.
The estimated Services cost associated with the line extension is $350,000.
/-00001/10-28-15/jmd/jmd -2- WEST1263631313.4
EXHIBIT B
ADDED FACILITIES MONTHLY CHARGE
Customer shall pay a monthly added facilities charge at the rate set below. The rate is based on a
percentage of the Added Facilities Installation Cost.
Item
Cost estimates
Comments
Added Facilities Monthly Rate
0.33%
See FN I
Added Facilities Installation
$800,000
See FN 2
Costs — Phase 1
Added Facilities Installation
$450,000
See FN 2
Costs — Phase 2
Added Facilities Monthly
$2,640
Charge - Phase I
Added Facilities Monthly
$4,125
Charge - Phase I and 2
combined
Line Extension
N/A
See FN 3
Footnotes:
(1) Pursuant to Rule 2.1-1
(2) Pursuant to Exhibit A to this Agreement
(3) Line Extension Costs are to be paid by the Customer upon City's request for work
performed from the Reserve Funds. The Line Extension, as identified in Exhibit A-1, is
not included in the Added Facilities Installation Cost and Added Facilities Monthly
Charge.
/-00001/10-28-15/jmd/jmd -1- WEM263631313.4
EXHIBIT C
TERMINATION FEE
If this Agreement is terminated for any reason, other than an Event of Default by City, Customer
shall pay City in full the Termination Fee calculated as set forth below to the extent such
payment has not previously been made to the City from the Reserve Amount:
• Any Added Facilities Installation Cost and Line Extension Costs;
• Plus: Costs of upgrades made at Customer's request for
Customer's convenience (if any);
• Plus: Demolition and removal costs (if applicable); and
• Plus: Other documented costs actually incurred by City (such as
insurance, taxes, cancellation fees, etc., if any).
/-00001 / 10-28-15/jmd/jmd -2- WES n263631313.4
EXHIBIT D
PROJECT SCHEDULE — Phase 1 Added Facilities
City Council Approval: December 15, 2015
Design and Engineering Completion: March 31, 2016
Procurement Completion Date: June 30, 2016
Construction Completion date: December 15, 2016
/-00001 / 10-28-15/jmd/jmd -3- WEST1263631313.4
FORM OF ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT
WES11261971756.8
[To be executed concurrently with the Added Facilities Agreement at Closing under Purchase
Agmt]
AGREEMENT FOR ECONOMIC DEVELOPMENT INCENTIVE ON ELECTRIC SERVICE
This Agreement for Economic Development Incentive on Electric Service (this "Agreement") is between
RPLANET EARTH LOS ANGELES, LLC, a Delaware limited liability company ("Applicant"), and the
City of Vernon, a California municipal corporation.
RECITALS:
A. The Economic Development rate was established and is made available at the City of
Vernon's sole discretion. The Economic Development rate is set forth in the City of Vernon's rate
Schedule ED.
B. Applicant proposes to have constructed for it to operate as a new facility at 3200
Fruitland, in the City of Vernon ("New Facility") and desires that the City of Vernon provide electric
service to such facility.
C. In consideration of Applicant's commitment to construct and operate the New Facility in
the City of Vernon at the contracted demand, the City of Vernon has agreed to modification of the
Economic Development rate as set forth in Schedule ED.
AGREEMENT: Applicant and the City of Vernon agree to the following terms and conditions:
1. QUALIFICATION CRITERIA.
Applicant is or will be a customer, eligible for receiving service under Schedule TOU-G, TOU-V or its
successor rate schedule.
The electric load subject to this agreement is a maximum billing demand of at least 5,750 kW of net new
load to the City of Vernon. The minimum 5,750 kW of net new load must be maintained for at least three
consecutive months during the initial 12 months of this agreement. Only new load that will be regularly
served by the City of Vernon will be eligible for this incentive.
2. BILL INCENTIVE.
Electric service to Applicant's premises shall be delivered under Applicant's otherwise applicable tariff
(OAT), which is TOU-V. A ten year rate incentive up to a twenty (20) percent reduction will be applied
to the customer's OAT (excluding taxes). This reduction shall be calculated on the rate components of the
customer's bill that correlate to service that the City of Vernon provides the customer. If needed the City
of Vernon may reduce the incentive percentage to ensure that revenues exceed the Floor Price. For
purposes hereof, the Floor Price shall mean the Floor Price set forth in Schedule ED except that for
purposes hereof the "marginal generation cost" component of the Floor Price for any fiscal year shall not
exceed the mean Day -Ahead Locational Marginal Price (LMP) for Vernon Metered Subsystem load
aggregation point (on -peak or off-peak, as applicable) as published by the California Independent System
WEST\264304428.2
Operator (CAISO).This incentive under this schedule will be limited by the Floor Price, as defined in
Schedule ED and modified as set forth above. In calculating the Floor Price, the City of Vernon will
make use of its best estimate of the marginal cost to serve the customer. The revenues from each
participant will be reviewed annually and/or at the end of the agreement to ensure that they equal or
exceed the Floor price for each year of the agreement, up to the OAT revenue that the customer would
have paid if it had not received the incentive.
Applicant's rate under this schedule will be subject to an annual review, with potential additional lump -
sum charges due to the City of Vernon or credits due to Applicant. The charges shall ensure that the rate
does not fall below the Floor Price each year. Credits, if available after the annual review, will be
provided if the customer's incentive rate had been previously reduced from the maximum incentive above
as a result of the application of the Floor Price limitation.
3. INCENTIVE CALCULATION.
Terms and conditions necessary for the incentive calculation are defined and agreed to as follows:
Billing determinants used for calculating the first year incentives will be the City of Vernon's best
estimate of expected usages and demand for customer expansion and attraction cases. For expansion
cases, the previous 12- months of historical metered data, if available, will be used to determine current
usage levels, and the incentive will be calculated only on that portion of demand and usage that is added.
During the annual and contract term review, the City of Vernon will compare the revenues received to the
Floor Price to ensure that the revenues received remain at least equal to the Floor Price throughout the
duration of the contract.
The City of Vernon reserves the right to reduce the contracted demands stated by the Applicant below if it
is determined that the Applicant's actual load at full operation of the facility after the Commencement
Date of this Agreement is more than 25% less than the contracted maximum demands stated below.
[Please mark the appropriate space below, indicating whether this is an agreement for the Applicant's
entire load or only a portion of the Applicant's load]
a. _X New customer locating in the City of Vernon.
b. Expansion of the existing customer's load.
C. The contracted demand of the new or expanded load is estimated to be on average,
_5,750_kW initially and 11,500 kW at full facility operation.
The excluded Demands, if applicable, are determined by averaging the Applicants four highest
measured demands during each seasonal period during the 12-mont period preceding the execution date
of this agreement, if available. If Applicant separately meters the Reserved Demand, Applicants
Excluded Demand will be zero (0) kW for each season. The City of Vernon and the Applicant agree that
the excluded demand is:
July to September
kW
May, June, October: 0 kW
WEST\264304428.2
November to April: 0 kW
The Incentive Ratio for each month is defined as the difference between the Applicant's maximum
demand for that month and the excluded Demand divided by that same month's maximum demand. The
Incentive Ratio will be a fraction from zero (0) to one (1). The Economic Development Rate discount is
determined as the product of the rate incentive, the Incentive Ratio and the subtotal of charges on the rate
components of the Applicant's bill that correlate to service that the City of Vernon provides to Applicant.
4. COMMENCEMENT DATE.
The incentive shall commence on the Applicants regularly scheduled meter read day in the month
following the date that installation of Phase 1 of the Added Facilities (as defined in that certain Added
Facilities Agreement of even date herewith) is completed by City (the "Commencement Date").
5. METERING.
Applicant agrees to be responsible for all costs associated with providing separate electric metering if the
City of Vernon, at its sole discretion, deems such metering a necessary condition to implement this rate.
If Applicant is deemed to require separately metered reserved demand, Applicant must have metering in
place before the incentive rate will apply. Applicant's ability to have required metering in place shall not
delay the commencement date provided in Section 4 by which the Applicant would have otherwise
received the incentive.
6. TERM OF AGREEMENT.
This agreement shall take effect on the Effective Date and remain in effect for a term of ten years
following the Commencement Date, subject to Section 2.
7. TERMINATION AGREEMENT
Applicant may terminate this agreement upon 30 days written notice. The City of Vernon may also
terminate this agreement upon 30 days written notice in the event Applicant no longer meets the
qualifications described elsewhere in the Agreement and in Rate Schedule ED. Notwithstanding these
rights of termination, the Applicant shall be subject to Liquidated Damages as provided in Section 9 of
this agreement.
8. "BUT FOR" TEST
Applicant attests that "but for" the terms of this agreement, either on its own or in combination with a
package of incentives made available to the Applicant from other sources, the Applicant would not have
located, or increased its operations within the City of Vernon. Applicant shall sign the attached affidavit
to that effect.
9. LIQUIDATED DAMAGES
If this agreement is terminated due to Applicant's misrepresentation or fraud, Applicant shall be liable for
liquidated damages that equal 200% of the cumulative difference between (i) bills calculated under the
Schedule ED rate to the date of termination and (ii) bills that would have been calculated under the OAT.
W EST\264304428.2
10. ASSIGNMENT.
Applicant may assign this agreement only if the City of Vernon consents in writing (not to be
unreasonably withheld, conditioned or delayed) and the party to whom the agreement is assigned agrees
in writing to be bound by this agreement in all respects.
W EST\264304428.2
IN WITNESS THEREOF, the Parties have executed this Agreement in multiple originals of equal dignity
by their respective duly authorized representatives.
Executed this day of , 2015 (the "Effective Date")
rPlanet Earth The City of Vernon
(customer)
(signature) (signature)
(Print Name) (Print Name)
(Title)
W EST\264304428.2
(Title)
AFFADAVIT FOR ECONOMIC DEVELOPMENT RATE
By signing this affidavit, an Applicant who locates or adds load in the City of Vernon hereby certifies and
declares under penalty of perjury under the laws of the State of California that the statements in the
following paragraphs are true and correct.
1. But for the receipt of the discounted economic development rate and the terms of the Agreement,
either on its own or in combination with an economic development incentive package, the Applicant's
load would not have been located, or added within the City of Vernon.
2. The load to which the Agreement applies represents kilowatt-hours (kWh) and kilowatts (kW)
that either (i) does not already exist in the City of Vernon, or (ii) the Applicant considered expanding to a
location outside of the City of Vernon.
3. Applicant has discussed with the City of Vernon the cost-effective conservation and load
management measures the applicant may take to reduce their electric bills and the load they place on the
City of Vernon's utility system.
4. On an annual basis, the cost of electricity for a new or expanding customer is at least five (5)
percent of its actual operating costs, less the cost of raw materials.
Executed this day of , 20
(Applicant)
BY:
(Signature)
(Print Name)
TITLE:
WEST\264304428.2
DRAFT FORM OF LAND USE COVENANT
WESM61971756.8
RECORDING REQUESTED BY:
Pechiney Cast Plate Inc.
4700 Daybreak Parkway
South Jordan, Utah 84095
WHEN RECORDED MAIL TO:
Department of Toxic Substances Control
Notes:
1) Changes to definition of
"Owner" may be needed if
executed by the City of
Vernon after Closing.
SPACE ABOVE THIS LINE RESERVED FOR RECORDER'S USE
LAND USE COVENANT AND AGREEMENT
ENVIRONMENTAL RESTRICTIONS
County of Los Angeles, Assessor's Parcel Numbers 6310-008-020 and 6310-008-021
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
("Original Property") and depicted on Figures 1 and 2 of Exhibit B, (the "Property") and the
California Department of Toxic Substances Control (the "Department," which includes its
successor agencies, if any). This Covenant covers the northern portion of the Original Property
situated at 3200 Fruitland Avenue (Exhibit B). 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 party beneficiary, although the
EPA is not a party to this Agreement.
-1-
089367.000006 603354862.7
ARTICLE I
STATEMENT OF FACTS
1.1 Property Location. The Property consists of two legal parcels, totaling
approximately 633,191 square feet as more particularly described in Exhibit A. The Property
was formerly (prior to a lot line adjustment) part of the Original Property that consisted 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 Original 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 ("TCE"), tetrachloroethene ("PCE"), 1,2-
dichloroethane (1,2-DCA"), and chloroform 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 Original Property under the oversight of
the Department. The RAP (AMEC, June 2012) 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. Pursuant to Code of Federal Regulations, Title 40
("40CFR"), Subchapter R, Toxic Substances Control Act ("TSCA"), 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 an
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
-2-
089367.000006 603354862.7
the Original Property and Stoddard solvent -impacted soil in the southern portion of the Original
Property. In these areas, VOCs and Stoddard solvent (and associated VOCs) remain in soil
above the RAP remediation goals. Currently, operation and maintenance ("O&M") activities for
the SVE systems and groundwater monitoring are ongoing. The location of the SVE system
and groundwater monitoring wells on the Property are also shown on Figure 1 of Exhibit C. The
O&M of the SVE system and groundwater 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 Based on groundwater monitoring well data, VOCs have been detected in
groundwater beneath the Property. These VOCs include TCE, PCE, 1,1-dichloroethene (1,1-
DCE"), chloroform, 1,2-DCA and to a lesser extent other VOCs at concentrations ranging from
0.5 micrograms/liter (Ng/L) up to 5,700 pg/L.
1.2.5 Beginning in August 2013, PCB -impacted concrete, and PCB, metals,
and total petroleum hydrocarbon ("TPH") impacted soils were excavated and removed from the
Property as described in the RAP. The areas associated with the Property where soil was
mitigated under the RAP are shown on Figure 2 of Exhibit C.
1.2.6 During the implementation of the RAP and the Below Grade Demolition
Plan (AMEC, August 2012), concrete slabs, pavement, footings, foundations, structures (in the
upper 10 feet relative to native grade), and underground utilities (upper 3 feet) were removed as
part of the below grade demolition work. Locations where structures were left in place at a
depth of 10 feet relative to native grade are shown on Figure 1 of Exhibit D and survey
information is provided on Figures 2 through 15 of Exhibit D. Concrete associated with one
structure (referred to as #FDC4) contains PCBs at concentrations above 1 milligram/kilogram
("mg/kg"). This structure is covered with a physical underground warning barrier ("UWB") that
consists of a 6-inch concrete layer covered with an orange liner. The surface elevation of the
UWB is approximately 171 feet mean sea level ("MSL") (see Figure 6 of Exhibit D). The
remaining concrete of this structure contains PCBs at concentrations up to 4600 mg/kg. Soil
and pea gravel within the structure contains PCBs at concentrations up to 12 mg/kg.
1.2.7 For total PCBs in soil, the site -specific remediation goals were
established for PCBs at a certain depth intervals; ground surface to 5 feet below native grade
(above178 feet mean sea level [MSL]) at 3.5 mg/kg, 5 feet to 15 feet below native grade (178 to
above 168 feet MSL) at 23 mg/kg, and below 15 feet below native grade (below or equal to 168
feet MSL) above 23 mg/kg. For Aroclor 1254, the remediation goal for ground surface to 15 feet
below native grade was 2.0 mg/kg. Because these remediation goals are depth -specific relative
to native grade, earthwork must be conducted in accordance with a Soil Management Plan
(refer to Article II, 4.2). A map depicting the native grade elevations is shown on Figure 16 of
Exhibit D.
1.2.8 Soil removals were conducted for PCBs using the depth interval
remediation goals from ground surface to a depth of 15 feet (native grade). Exposure point
concentrations based on a 95% upper confidence limit (95% UCL) of the arithmetic mean of the
-3-
089367.000006 603354862.7
PCBs concentrations was used to estimate a reasonable maximum exposure (RME) scenario to
demonstrate that the RAP soil removals achieved the PCB remedial goals. EPA ProUCL
software, version 5.0.00 (EPA, 2013) was used to calculate the UCLs. Based on the ProUCL
results, for the outdoor commercial/industrial worker (exposure to soil to a depth of 5 feet) and
construction worker (exposure to soil to a depth of 15 feet), the estimated cancer risks and
noncancer hazards from direct contact soil exposure to PCBs were below the de minimus target
levels of 1x10-6 and 1.0, respectively.
1.2.9 Soil remaining in place at depths greater than 15 feet below native grade
with PCB concentrations above the approved remediation goal (23 mg/kg) are covered with a
physical UWB. The locations where soil is covered with the UWB are shown on Figure 1 of
Exhibit D, along with the in situ maximum total PCB concentrations recorded during the
implementation of the RAP.
1.2.10 Concrete containing PCBs at concentration greater than 1 mg/kg was
removed and shipped off the Property for disposal. Crushed concrete that was used on the
Property as backfill and surface cover may contain PCBs at concentrations less than or equal to
1 mg/kg. The area where crushed concrete was placed at the Property is shown on Figure 17
of Exhibit D. These materials shall be maintained onsite.
1.2.11 As detailed in the Phase Area Completion Reports, which were required
under the Consent Order for the RAP soil removals, approved by the Department and the EPA,
soils within portions of the Property, to a depth of 15 feet or more below native grade, contain
hazardous substances, which include PCBs, petroleum hydrocarbons (C6 to C44), VOCs, and
metals. Engineering controls, such as a vapor barrier, may be required for redevelopment in
areas where VOCs remain in soil. The need for Engineering controls shall be evaluated as part
of the redevelopment plans for the Property. The concentrations of the substances remaining in
soil are summarized on Tables 1 through 4 of Exhibit E. Sample locations are shown of Figures
1 through 6 of Exhibit E. Hazardous Substances remain at the Property above concentrations
acceptable for unrestricted land use.
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
-4-
089367.000006 603354862.7
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.
2.4 "Improvements" includes, but is not limited to buildings, structures, roads,
driveways, improved parking areas, pipelines or other utilities.
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 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.
-5-
089367.000006 603354862.7
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
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 Administering 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.
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.
(e) Any use which is not for industrial or commercial purposes.
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
implementation a soil management plan pre -approved by the Department and the EPA in
writing. The approved Soil Management Plan for pre -construction grading and redevelopment
earth work is included in Exhibit F.
For PCBs, soil within the upper 5 feet relative to native grade (above 178 feet MSL) may contain
PCBs at concentrations below 3.5 mg/kg, and for this depth interval soil may be disturbed
during site grading with no further sampling or onsite management, including those areas
designated as landscaped areas. Areas where disturbance occurs shall be documented and
surveyed.
-6-
089367.000006 603354862.7
Soils containing PCBs at depth between 5 feet and above 15 feet (relative to native grade;
interval of 178 feet MSL to above 168 feet MSL) that is disturbed during site grading or during
construction of footing, foundations, or utility trenches may be consolidated and placed under
the footprint of a building slab or concrete paved area (referred to as a "cap" with a minimum
concrete thickness of 6-inches). In doing so, the soil placed under the cap shall be designated
as containing total PCBs at concentrations of 23 mg/kg (the remediation goal for the 5 to 15 foot
depth interval relative to native grade). The PCB -impacted soil consolidated under the cap shall
be covered with a warning membrane, such as the orange fabric used for the UWBs, or other
similar material. If the soil placed under the cap is further disturbed during construction
activities (trenching, etc.), additional soil testing for total PCBs shall be conducted to verify that
that the PCB concentrations in soil do not exceed 23 mg/kg.
In addition, soil consolidated under the cap shall not include soil from a depth of greater than 15
feet relative to native grade. Soil at depths greater than 15 feet relative to native grade shall be
designated as containing total PCBs at a concentration greater than or equal to 50 mg/kg.
The cap, inspections of the cap, record keeping, and future repairs to the cap shall meet the
requirements of 40 CFR 761.61(a)7. A restrictive covenant recording for the cap and underlying
soil shall meet 40 CFR 761.61(a)8, and will not require a low occupancy area designation
specified in 40 CFR 761.61(a)(8)(i)(A)(1) or the associated low occupancy certification specified
in 40 CFR 761.61(a)(8)(i)(B). The installed overlying warning membrane and areas where
these soils are consolidated shall be documented and surveyed, and the survey information
shall be added to this Covenant and recorded.
Soils containing other contaminants, such as TPH (and/or Stoddard solvent), VOCs or metals,
shall be maintained in the area where the soil is disturbed and not relocated to another area or
other portion of the Property that is not impacted.
(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 and the Soil Management Plan (Exhibit F).
(c) No activities which will disturb the physical UWBs shall be permitted without a
soil management plan pre -approved by the Department and the EPA in writing. If the physical
UWBs are disturbed, then soil and concrete under these barriers shall be managed for disposal
based on in situ PCB concentrations recorded during the implementation of the RAP (Figure 1
of Exhibit D. Management and disposal of PCB -impacted soil and concrete shall be conducted
in accordance with 40 CFR, Section 761.65. Soil containing PCBs shall be stored on site no
longer than 30 days.
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
-7-
089367.000006 603354862.7
PCBs covered with an UWB) are shown on Figure 1 of Exhibit D. Disturbance of the UWBs
shall be addressed as noted above.
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.
(e) 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 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 Pechiney, 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
-8-
089367.000006 603354862.7
person's property, except to the extent caused by the gross negligence or willful misconduct of
Owner.
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 person 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
-9-
089367.000006 603354862.7
Department or the EPA in the exercise of its discretion, this Covenant shall continue in effect in
perpetuity.
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, if personally
delivered to the person being served or to an office 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.
-10-
089367.000006 603354862.7
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.
7.7 Governing 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.
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 —
Figure 1 - Property Location
Figure 2 - Assessor Parcel Map
Exhibit C —
Figure 1 - Locations of Groundwater Monitoring and Soil Vapor Extraction Wells
Figure 2 — Generalized Areas of Residual Soil Impacts
Exhibit D —
Figure 1 - Locations of Underground Warning Barriers (UWB) and Deeper Structures
Remaining in Place Below 10/15 Feet
Figures 2 to 15 — Survey Record Drawings for UWBs and Deeper Structures
-11-
089367.000006 603354862.7
Figure 16 - Native Grade Reference Elevations
Figure 17 — Areas of Crushed Concrete
Exhibit E — Summary of Implementation Report Information
Figure 1 — Sample Locations — PCBs in Soil 0 to 5 feet (native grade)
Figure 2 — Sample Locations — PCBs in Soil 5 to 15 feet (native grade)
Figure 3 — Sample Locations — PCBs in Soil Greater than 15 feet (native grade)
Figure 4 — Sample Locations — Total Petroleum Hydrocarbons (TPH)
Figure 5 — Sample Locations — Volatile Organic Compounds (VOCs)
Figure 6 — Sample Locations — Metals (As, Pb, Cu and Cr)
Table 1 — Summary of Remaining PCBs Concentrations in Soil and Sample Location
Information
Table 2 — Summary of TPH Concentrations in Soil and Sample Location Information
Table 3 — Summary of VOCs Concentrations in Soil and Sample Location Information
Table 4 — Summary of Metals (As, Pb, Cu and Cr) Concentrations in Soil and Sample Location
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.
Soil Management Plan
US EPA Conditional Approval Letters
-12-
089367.000006 603354862.7
A notary public of other office 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.
ACKNOWLEDGMENT
State of California
County of
On , before me, ,
(insert name and title of officer)
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 PURJERY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
State of California
County of
On , before me,
(insert name and title of officer)
(Seal)
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 PURJERY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
-13-
089367.000006 603354862.7
(Seal)
DRAFT FORM OF SOIL MANAGEMENT PLAN
WEM261971756.8
TABLE OF CONTENTS
Page
1.0
INTRODUCTION............................................................................................................1
2.0
SITE BACKGROUND AND REMEDIATION GOALS.....................................................1
3.0
REDEVELOPMENT AND CONSTRUCTION ACTIVITIES.............................................4
4.0
CHEMICALS OF CONCERN..........................................................................................4
5.0
SOIL MANAGEMENT.....................................................................................................5
5.1 SOIL AND CONCRETE CONTAINING PCBS AND OTHER COCS.................................
5
5.2 MONITORING REQUIREMENTS...............................................................................7
5.2.1 SCAQMD Rule 1166 Requirements........................................................7
5.2.2 Fugitive Dust...........................................................................................
7
5.2.3 Storm Water Controls..............................................................................
8
5.3 SOIL TESTING AND EQUIPMENT DECONTAMINATION...............................................
8
5.4 STOCKPILE MANAGEMENT AND TESTING................................................................
9
5.5 SITE ACCESS......................................................................................................
11
5.6 IMPORT FILL SOIL REQUIREMENTS......................................................................
11
5.7 AGENCY NOTIFICATIONS.....................................................................................11
6.0
HEALTH & SAFETY REQUIREMENTS.......................................................................11
7.0
LIMITATIONS...............................................................................................................12
8.0
REFERENCES.............................................................................................................13
FIGURES
Figure 1 Site Location Map
Figure 2 North and South Properties with Reference Elevations for Native Grade
Figure 3 Existing Groundwater Monitoring and Soil Vapor Extraction Wells
Figure 4 Locations of Underground Warning Barriers (UWBs) and Structures
Figure 5 Post -Below Grade Demolition Site Grade and Strom Water Controls
Figure 6 Areas with Crushed Concrete
Figure 7 Areas of Residual Soil Impacts
TABLE
Table 1 Site -Specific Remediation Goals
APPENDIX
Appendix A Survey Information for Underground Warning Barriers (UWBs) and Deeper
Structures Left in Place
Amec Foster Wheeler Environment & Infrastructure, Inc.
K \10627 003 0\Soil Mat Plan\Soil Management Plan Pechinev r2 docx _ I
SOIL MANAGEMENT PLAN (SMP)
Former Pechiney Cast Plate, Inc. Facility
Vernon, California
1.0 INTRODUCTION
Amec Foster Wheeler Environment & Infrastructure, Inc. (Amec Foster Wheeler; formerly
AMEC), has prepared this soil management plan (SMP) on behalf of Pechiney Cast Plate, Inc.
(Pechiney), for the former Pechiney property located at 3200 Fruitland Avenue, in Vernon,
California (the site; Figure 1). The former Pechiney property has been subdivided into two -
properties known as the North Property (Assessor Parcel Numbers [APNs] 6310-008-020 and
6310-008-021) and the South Property (APNs 6310-008-010, 6310-008-011, and 6310-008-
019) as shown on Figure 2.
The North Property encompasses approximately 633,191 square feet of real estate and the
South Property encompasses approximately 552,715 square feet of real estate. The future
uses of the North Property and the South Property will consist of commercial/industrial land
use.
(Fefmnee ending). The future uses may include warehouse distribution center and industrial
manufacturing.
The SMP is intended to be a plan that describes the protocols for handling and managing soil,
including soil containing residual concentrations of chemicals of concern (COCs) following site
remediation that may be encountered during future site grading and construction conducted
during redevelopment of the respective properties. Depending on the timing of the planned
redevelopments, this SMP may need to be revised to reflect the current state of development
of the property, current state and federal requirements, and current property conditions.
2.0 SITE BACKGROUND AND REMEDIATION GOALS
Remedial investigations conducted at the site identified volatile organic compounds (VOCs),
petroleum hydrocarbons (as Stoddard solvent), polychlorinated biphenyls (PCBs), and metals
(primarily arsenic) in soil; VOCs and Stoddard solvent in soil vapor; and PCBs in concrete
building floor slabs at concentrations of potential concern. The investigations also identified
VOCs, including trichloroethene and tetrachloroethene, in groundwater beneath the site.
Groundwater within the first water -bearing unit is present at a depth of approximately 140 to
150 feet. Remedial investigation and screening level human health risk assessment (HHRA)
findings for the site are summarized in the Feasibility Study (AMEC, May 2012). Based on the
HHRA, site -specific remediation goals were established for the COCs in soil vapor, and soil at
Amec Foster Wheeler Environment & Infrastructure, Inc.
K7\10627 003 0\Soil Mat Plan\Soil Management Plan Pechiney r2 docx _ 1
the site assuming that the future land use would be for commercial/industrial purposes. The
site -specific soil remediation goals are summarized in Table 1.
Pursuant to a July 2010 Imminent and Substantial Endangerment Determination and Consent
Order, a Remedial Action Plan (as amended, the "RAP") was prepared and implemented to
mitigate concrete, soil, and groundwater impacts at the site under the oversight of the
Department of Toxic Substances Control (DTSC). Pursuant to the Code of Federal
Regulations (CFR), Title 40, Subchapter R, Toxic Substances Control Act (TSCA), the US
Environmental Protection Agency (US EPA) has oversight for PCB -impacted soil and
concrete. Mitigation of the PCB -impacted concrete and soil was approved by the US EPA.
Based on site -specific remediation goals developed for COCs present in concrete and soil at
the site, these impacted media were mitigated to meet the site -specific remediation goals
presented in the RAP. Remediation of VOC-impacted soil on the Northern Property and
Stoddard solvent -impacted soil on the Southern Property is being mitigated by soil vapor
extraction (SVE) and SVE/bioventing, respectively. Groundwater monitoring is also ongoing at
the site. The well fields for the SVE and SVE/bioventing areas and existing groundwater
monitoring wells are shown on Figure 3.
As detailed in the Completion Reports (AMEC, 2014a, b, c, and d), soil within portions of the
site, to a depth of 15 feet or more below the native grade, contain hazardous substances,
which include the COCs listed in Section 4.0 below. Native grade was relative to the elevation
of the asphalt surface that runs along the eastern side of the site. Native grade elevations
used are shown on Figure 2. Soil removals completed at the site during the implementation of
the RAP are summarized below by Phase area, and residual concentrations of COCs remain
in place below the remediation goals.
• Phase I Area - soil removals were conducted for PCBs and for isolated occurrences
of total petroleum hydrocarbons (TPH) in soil (based on field conditions, proximity
to below grade structures that were removed, or due to the presence of PCBs). The
apmroximate vertical extent of the soil removals range from an elevation of 185 to
167 feet mean sea level (MSL).
• Phase II - soil removals were conducted for PCBs and metals and for isolated
occurrences of TPH in soil. The approximate vertical extent of the soil removals
range from an elevation of 186 to 159 feet mean sea level (MSL).
Phase III, IV, and VI Areas - soil removals were conducted for PCBs and metals
(arsenic) and for isolated occurrences of TPH in soil (based on field conditions,
proximity to below grade structures that were removed, or due to the presence of
PCBs). Soil impacted with TPH and Stoddard solvent was not removed in the area
where SVE/bioventing is being used to address TPH- (as Stoddard solvent) and
associated VOC-impacted soils; and some soil containing TPH was removed in the
Amec Foster Wheeler Environment & Infrastructure, Inc.
K7\10627 003 0\Soil Mat Plan\Soil Management Plan Pechinev r2.docx —Peehisey F248 2
Phase IV Area. The approximate vertical extent of the soil removals range from an
elevation of 185 to 171 feet mean sea level (MSL).
Phase V - soil removals were conducted for metals, PCBs and TPH. The
approximate vertical extent of the soil removals range from an elevation of 176 to
174 feet mean sea level (MSL).
In addition, soil remains in place at depths greater than 15 feet below native grade with PCB
concentrations above 23 milligrams per kilogram (mg/kg). As approved by US EPA, these
areas are covered with a physical underground warning barrier (UWB) that consists of
concrete slurry covered with an orange fabric. The locations of these undeFgFOURd
baFF*eFS-UWBs are shown on Figure 4. along with the average top elevations of the UWBs.
The maximum total PCB concentrations detected in soil, concrete and/or fill material that
remains below the UWBs are shown on Figure 4, and summarized below. Survey information
for the UWBs is included in Appendix A.
Structure Identification
Total Maximum PCB Concentration below an UWB
milligrams/kilogram (mg/kq)
Concrete
Soil
Pea Grave/Fill
Concrete Cover in Area 4A/46
Not Applicable (NA)
2000
NA
FDC#4 / Area 4B
4600
NA
12
North Concrete Cover
NA
530
NA
South Concrete Cover
NA
1775
NA
Concrete Cover in Area C
NA
73.6
NA
The Completion Reports (AMEC, 2014a, b, c, and d), also provided documentation of the
below demolition work conducted at the site. The below grade demolition work included the
removal of footings, foundations, structures (in the upper 10 feet), and underground utilities
(within the upper 3 feet)_, Locations were structures were left in place at a depth of 10 feet
relative to native grade are shown on Figure 4, along with the average elevation of the top of
the concrete cover placed over the structure. The maximum total PCB concentrations
detected in concrete and/or fill material of the structure that remains below the concrete cover
is shown on Fiaure 4. and summarized on the next paae. Survev information for the deeper
structures is included in Appendix A.
Amec Foster Wheeler Environment & Infrastructure. Inc.
KA10627.003.0\Soil Mat Plan\Soil Manaaement Plan Pechinev r2.docx 3
Structure Identification
Total Maximum PCB Concentration Associated with a
Structure Left in Place
milligrams/kilogram (mq/kq)
Concrete
Soil
Pea Grave/Fill
FDC#1
0.069
Not Armlicable (NA)
NA
Structure 142 — Swindell Pits
Not Detected
NA
Not Detected
Structure 827 — Swindell Pits
Not Detected
NA
Not Detected
Structure 1A (Northeast Area)
3.6
NA
NA
Structure 1 C (Northeast Area)
2.0
NA
NA
3.0 ANTIGIP TED REDEVELOPMENT AND CONSTRUCTION ACTIVITIES
The site is currently graded for storm water controls, fenced, and vacant. The site grade and
post -demolition storm water controls in place at the site are shown on Figure 5. As part of the
below grade demolition work, concrete containing PCBs at concentrations less than or equal
to 1 mg/kg (to non -detect levels) was crushed onsite and used as backfill and surface cover in
portions of the site. The areas where crushed concrete was used in this manner is shown on
Figure 6.
Redevelopment will likely include a warehouse
distribution center (Southern Property) and industrial manufacturing facility (North Property).
In either case, redevelopment may require over -excavation and recompaction of site soils
(including native soil and imported soils); construction excavations for footings, foundations
and utility corridors; and/or import of fill soils for structural or other purposes. If imported fill is
needed, the import fill requirements shall meet those described in Section 5.5. If impacted
soils (based on visual stainina, odors or other observations) are encountered during earthwork
(grading or excavations), the soil must be managed for potential off -site disposal or stockpiled
for potential onsite re -use as described in Section 5.3.
4.0 CHEMICALS OF CONCERN
This section described the COCs that may be present at the site, and impacted soil may be
encountered during site grading, construction, and redevelopment work. The COCs that may
be encountered in soil include:
• Total petroleum hydrocarbons (TPH and Stoddard solvent);
Amec Foster Wheeler Environment & Infrastructure, Inc.
K7\10627 003 0\Soil Mat Plan\Soil Management Plan Pechinev r2 docx _ 4
• PCBs;
• VOCs, such as chloroform, PCE and TCE in the North Property area, and
1,2,4-trimethylbenzene and 1,3,5-trimethylbenzene in the South Property area; and
Metals (primarily arsenic).
The areas of the site where these COCs remain in place in soil after implementation of the
RAP are shown on Figure 7. Soil may be encountered with COCs above the remediation
goals in areas where SVE or SVE/bioventing are in progress, and these areas are also shown
on Figure 7 The presence of these COCs in soil at the site shall be considered during site
grading and construction excavation. In consideration of the depth to groundwater (140 to 145
feet below grade), groundwater management during construction is not anticipated; but will be
decided on a project -specific basis.
5.0 SOIL MANAGEMENT
This section provides procedures for monitoring, soil testing, equipment decontamination,
managing and testing of soil stockpiles, import fill soil requirements, and ite access, and
agency notifications, all of which shall need to be implemented in the event earthwork is being
conducted in areas with residual COCs remaining at concentrations below or above the
remediation goals (Table 1), or if impacted soil (based on visual staining, odors, or other
observations) is encountered during redevelopment.
5.1 SOIL AND CONCRETE CONTAINING PCBS AND OTHER COOS
For the site, where PCBs were a COC, remediation goals were established for PCBs at a
certain depth intervals, ground surface to 5 feet below native grade (abovel78 feet mean sea
level [MSL]), 5 feet to 15 feet below native grade (178 to above 168 feet MSL), and below 15
feet below native grade (below or equal to 168 feet MSL). (Note - The native grade surface
elevation of 178 feet MSL in the Phase V area is lower than the remainder of the site, and
depth intervals for this Phase area began at native grade). Refer to Figure 2 for the native
grade surface elevations used for the PCB depth intervals in each phase area. Because these
remediation goals are depth -specific relative to native grade, earthwork must be conducted in
a manner in which soil from each respective layer is not mixed with a layer that contains soil
mitigated to a less -restrictive remediation goal. Restated, deeper soil intervals shall not be
mixed or co -mingled with a shallower soil interval and placed in the shallower interval
("segregation approach").
Soil within the upper 5 feet relative to native grade (above 178 feet MSL) may contain PCBs at
concentrations below 3.5 mg/kg, and for this depth interval soil may be disturbed during site
Amec Foster Wheeler Environment & Infrastructure, Inc.
K \10627 003 0\Soil Mat Plan\Soil Manaaement Plan Pechinev 2 docxKA10627.003ASeil Mgt PlankGeil Management RaR—Peshiney5
grading with no further sampling or onsite management, including those areas designated as
landscaped areas. Areas where disturbance occurs shall be documented and surveyed.
As an alternative to the segregation approach, soil between 5 feet and above 15 feet (relative
to native grade; interval of 178 feet MSL to above 168 feet MSL) that is disturbed during site
grading or during construction of footing, foundations, or utility trenches may be consolidated
and placed under the footprint of a building slab or concrete paved area (referred to as a "cap"
with a minimum concrete thickness of 6-inches). In doing so, these soils under the cap shall
be designated as containing total PCBs at a concentration gFeateF thaR f 23 mg/kg the
remediation goal for the 5 to 15 foot depth interval relative to native grade). The PCB -
impacted soil consolidated under the cap shall be covered with a warning membrane, such as
the orange fabric used for the UWBs or other similar material. If the soil placed under the cap
is further disturbed during construction activities (trenching, etc.), additional soil testing for total
PCBs shall be conducted to verify that that the PCB concentrations in soil do not exceed 23
mg/kg. .
In addition soil consolidated under the cap shall not include soil from a depth of greater than
15 feet relative to native grade (168 feet MSL). Soil at depths greater than 15 feet relative to
native grade shall be designated as containing total PCBs at a concentration greater than or
equal to 50 ma/kq.
The cap inspections of the cap record keeping and future repairs to the cap shall meet the
requirements of 40 CFR 761 61(a)7. A restrictive land use covenant (LUC) recording for the
cap and underlying soil shall meet 40 CFR 761.61(a)8 and will not require a low occupancy
area designation specified in 40 CFR 761.61(a)(8)(i)(A)(1) or the associated low occupancy
certification specified in 40 CFR 761.61(a)(8)(i)(B). The installed overlying warning
membrane and areas where these soils are consolidated shall be documented and surveyed,
and the survey information shall be added to the LUC.
In the area of the UWBs (at a depth of 15 feet or greater (at 168 feet MSL or deeper; Figure 4),
soil (or concrete) remains in place below the UWB with PCBs concentration above the site -
specific remediation goals. The UWB or underlying soil shall not be disturbed or moved. If
these areas are disturbed, then soil and concrete shall be removed for disposal based on in
situ total PCB concentrations recorded during the implementation of the RAP, as summarized
in Section 2.0 above and noted on Figure 4.
In addition, crushed concrete that was used on site as backfill and surface cover may contain
PCBs at concentrations less than or equal to 1 mg/kg (Figure 5). These materials shall be
maintained onsite.
Amec Foster Wheeler Environment & Infrastructure, Inc.
K \10627 003 0\Soil Mot Plan\Soil Management Plan Pechinev r2 docx _ 6
Soils containing other COCs, such as TPH (and/or Stoddard solvent). VOCs, or metals, shall
be maintained in the area where the soil is disturbed and not relocated to another area or
other portion of the site that is not impacted.
6.2 MONITORING REQUIREMENTS
This section describes monitoring measures for future site work where visibly stained soil or
odors are is -observed or where potentially TPH- or VOC-impacted soils may be discovered or
encountered in areas shown on Figure-7 during site grading and construction excavation.
Control and monitoring methods for VOC emissions (if encountered) and dust generation are
included in this section. While these elements are discussed in this section, all other
potentially applicable laws and regulations shall be considered prior to beginning earthwork at
the site.
5.2.1 SCAQMD Rule 1166 Requirements
Soil at the site may require VOC monitoring in accordance with South Coast Air Quality
Management District requirements (e.g., SCAQMD Rule 1166). Monitoring for the presence of
VOC-impacted soil and implementing a VOC-impacted soil mitigation plan approved by the
SCAQMD Executive Officer will be required if VOC-impacted soil is encountered during
grading and excavation work. A copy of the plan must be on site during the entire excavation
period, and the provisions for monitoring and reporting under the Rule 1166 permit/plan must
be implemented. The following vapor or odor mitigation measures may be implemented if
real-time air monitoring exceeds an action level or if odors are encountered that requires
mitigation from a health and safety perspective:
• Cover subject soil with clean soil or plastic sheeting:
• Reduce the pace of work:
• Reduce size of area being excavated: and/or
• Apply vapor suppression.
Construction procedures or vapor/odor control measures may be altered based on
observations of the effectiveness of such measures. Work must stop until such measures are
improved or additional or more effective measures are employed. Additional air monitoring
may be conducted to confirm the effectiveness of emission reduction activities.
5.2.2 Fugitive Dust
Dust and odor control measures during site grading and excavation shall be implemented to
prevent airborne dust from leaving the site boundary, in accordance with SCAQMD
regulations. Conditions shall be evaluated and the adequacy of dust control measures, as
Amec Foster Wheeler Environment & Infrastructure, Inc.
K \10627 003 0\Soil Mat Plan\Soil Management Plan Pechinev r2.docx _ 7
based on real-time monitoring and SCAQMD Rule 403, shall be evaluated. The following dust
mitigation measures may be implemented if real-time monitoring for fugitive dust exceeds the
action level or if observations of visible dust emissions at the site boundary are made.
• Apply water spray or mist during activities such as excavation or stockpile
management to minimize the generation of visible dust;
• Have a water supply available continuously;
• Cover soil stockpiles;
• Minimize open excavations;
• Use tarpaulin or other covers for truck carrying soils that travel on public streets;
• Keep the drop heights to a minimum, during the handling of materials or loading of
transportation vehicles;
• Keep vehicle speeds on the property below 5 miles per hour; and
• Reduce the pace of work.
Construction procedures or dust control measures may be altered based on observations of
the effectiveness of such measures. Work must stop until such measures are improved or
additional or more effective measures are employed. Additional air monitoring may be
conducted to confirm the effectiveness of emission reduction activities.
5.2.3 Storm Water Controls
Prior to construction activities, the contractor, in cooperation with the property owner, shall
obtain a general construction permit for storm water and erosion control measures under the
California General Permit for Storm Water Discharges Associated with Construction and Land
Disturbance Activities, Order No. 2009-0009-DWQ (General Permit).
During construction activities, the contractor shall implement a Storm Water Pollution
Prevention Plan (SWPPP).
5.3 SOIL TESTING AND EQUIPMENT DECONTAMINATION
If impacted soil is observed (based on visual staining, odors, or other observations or from
areas shown on Figure 7), soil sampling and analysis for TPH, PCBs, metals and VOCs shall
be conducted to assess the presence of these COCs at concentrations above the remediation
goals (Table 1). If impacted soil is encountered that exceeds the soil remediation goals and to
the extent the impacted soil requires excavation and offsite disposal, additional soil sampling
shall be conducted under the supervision of a Professional Geologist (PG) or Civil Engineer
Amec Foster Wheeler Environment & Infrastructure, Inc.
K7\10627 003 0\Soil Mat Plan\Soil Manaaement Plan Pechinev r2 docx _ 8
(PE) registered in the State of California experienced in performing environmental
investigations.
The number of, and the methods used to collect the soil samples and the analyses to be
performed shall be selected in the field by the supervising PG or PE. The analytical suite shall
be selected based on field observations, and may include the following test methods:
• TPH with carbon chain range quantification (TPHcc) using EPA Method 8015M
(Modified);
• PCBs using EPA Method 8082 (using soxhlet extraction method 3540C);
• Metals using EPA Methods 60106/7242; and
• VOCs using EPA Method 8260B and field preservation Method 5035.
Samples shall be collected in glass jars of brass tubes, which shall be sealed, uniquely
labeled, and stored in an ice chest filled with ice to keep the samples chilled. The samples
shall be shipped to an analytical laboratory accredited by the California State Water
Resources Control Board Environmental Laboratory Accreditation Program using chain of
custody procedures.
Re -useable sampling equipment (hand augers, shovels, etc.) will be decontaminated using the
following steps to reduce the potential for cross -contamination.
1. wash and scrub in non -phosphate detergent and potable water;
2. rinse in potable water; and
3. rinse in DI water and air dry
Investigation derived residuals, including decontamination water, shall be managed in
accordance with regulatory requirements.
If PCBs are detected (or suspected) in soil, re -usable sampling equipment shall be
decontaminated in accordance with 40 CFR 761.79. Liquid decontamination waste shall be
handled in accordance with 40 CFR 761.79.
5.4 STOCKPILE MANAGEMENT AND TESTING
During site grading or construction excavation work, excess soil spoils, including COC-
impacted soil, may be generated that require temporary stockpiling. Stockpiled soil may either
be returned to the soil interval from which the soil was encountered or may be transported off
site for disposal.
Amec Foster Wheeler Environment & Infrastructure, Inc.
K \10627 003 0\Soil Mot Plan\Soil Management Plan Pechinev r2.docx _ 9
If COC-impacted soil is encountered, the excavated COC-impacted soil shall be stockpiled on
plastic sheeting with a minimum thickness of 10 mils to reduce the potential for spreading
contamination on surface soil. Stockpiles shall be covered at the end of the work day with
plastic sheeting to reduce the potential for erosion or direct contact with storm water and to
prevent unauthorized access. Plastic sheeting shall be weighted down to prevent the pile from
being uncovered by wind. In addition to plastic sheeting covers, stockpiles should be
managed to minimize migration of contaminated soils, and may include proper sloping to
prevent run-on and infiltration of storm water, appropriate compaction to maintain stockpile
integrity, and adequate security for the site to deter trespassers.
Stockpiled soil containing total PCBs at concentrations greater than 50 mg/kg or higher must
be stored in accordance with 40 CFR 761.65. Soil containing PCBs shall be stored on site no
longer than 30 days.
If the stockpiled, COC-impacted soil is to be transported off site for disposal, the soil shall be
profiled for waste characteristics. For disposal purposes and profiling for PCBs, soil samples
shall be collected in -place (e.g., in -ground) for PCBs prior to excavation (not from stockpiles).
For other COCs (TPH, VOCs or metals), stockpile samples may be collected for waste
profiling purposes. Waste profiling shall consist of collecting soil samples (in -ground or from
stockpiles) for laboratory analyses at the following minimum frequency.
• One sample per 100 cubic yards excavated or less.
• Three samples per 100 to 500 cubic yards excavated.
• One sample per 500 cubic yards excavated up to 2500 cubic yards, and then
above 2500 cubic yards, one sample per 2500 cubic yards.
Sampling shall be conducted in conformance with the procedures stipulated by the supervising
PG or PE. Soil samples shall be analyzed for the following constituents.
• TPH with carbon chain range quantification (TPHcc) using EPA Method 8015M
(Modified);
• VOCs using EPA Method 8260B and field preservation Method 5035;
• PCBs using EPA Method 8082 (using soxhlet extraction method 3540C); and
• Metals using EPA Methods 6010/7242.
Other analyses may be required contingent on waste profiling requirements, receiving facility
requirements, or other regulatory directives.
Amec Foster Wheeler Environment & Infrastructure, Inc.
K-\10627 003 0\Soil Mat Plan\Soil Manaaement Plan Pechinev r2.docx _ 10
6.5 SITE ACCESS
Vehicle and personnel access to areas where potentially impacted soils (based on visual
staining, odors, or other observations or from areas shown on Figure 7) are encountered shall
be controlled. Caution tape, cones, fencing, steel plates, or other appropriate measures shall
be used to clearly designate the active area and to prevent access by the public. Stockpiles of
potentially impacted soil shall be secured to prevent unauthorized access.
5.6 IMPORT FILL SOIL REQUIREMENTS
If needed, any off -site soils brought to the site for use as backfill (import fill) must be tested in
general conformance with the Department of Toxic Substances Control (DTSC), Information
Advisory Clean Imported Fill Material document (DTSC, 2001). Import fill shall be tested for
target compounds based on the location of the fill source area; however, as a minimum, the fill
should be tested for the following constituents.
• TPHcc using EPA Method 8015;
• VOCs using EPA Method 826013;
• PCBs using EPA Method 8082 (using soxhlet extraction method 3540C); and
• Title 22 metals using 601013/7242.
Other analyses may be required contingent on the source of the import fill or
recommendations by the supervising PG or PE. A minimum of one sample for laboratory
analysis is suggested per 1000 tons of import fill per borrow site (single source). For
quantities above 5000 tons of import fill per borrow site (single source), one sample for
laboratory analysis is suggested per 5000 tons of import fill. For PCBs, import soil shall
contain less than 1 mg/kg of total PCBs.
6.7 AGENCY NOTIFICATIONS
DTSC shall be notified in the event that impacted soil is encountered in areas beyond what is
identified on Figure 7 during site grading or construction activities. If PCBs are detected in soil
(in -situ) at concentrations greater than 50 mg/kg, US EPA shall be notified. Notification shall
be provided by phone followed by electronic mail describing the area and impacted soil
encountered.
6.0 HEALTH & SAFETY REQUIREMENTS
Project personnel shall comply with all applicable federal, state, and local regulations, as well
as the State of California Construction Safety Orders (Title 8). Additionally, if COC-impacted
soil is encountered, personnel working in the COC impacted area must comply with
Amec Foster Wheeler Environment & Infrastructure, Inc.
K:\10627.003.0\Soil Mat Plan\Soil Management Plan Pechinev r2.docx _ 11
Occupational Safety and Health Administration (OSHA) regulations specified in 29 CFR
1910.120 and CCR Title 8, Section 5192. A site -specific health and safety plan shall be
prepared prior to the start of earth work.
7.0 LIMITATIONS
This SMP does not address topics related to other chemicals or media that may be
encountered during a redevelopment or future site actives, including but not limited to,
demolition and construction debris, asphalt, concrete, asbestos -containing materials, and
other affected media. If such materials are encountered, contractors and workers are
responsible for complying with all applicable laws pertaining to the handling and disposal of
these materials.
In preparing this SMP, Amec Foster Wheeler has relied upon certain information and
representations obtained from documents prepared by others. To the extent that
recommendations are based in whole or in part on such information, those conclusions are
contingent on its accuracy and validity. Amec Foster Wheeler assumes no responsibility for
any consequences arising from any information or condition that was concealed, withheld,
misrepresented, or otherwise not fully disclosed or available to Amec Foster Wheeler.
This SMP is based on current known site conditions and current laws, policies and regulations.
No representation is made to any present or future developer or property owner of the site, or
portions of the site with respect to future site conditions, other than those specifically identified
within this document.
Amec Foster Wheeler disclaims any responsibility for any unintended or unauthorized use of
this SMP. Amec Foster Wheeler has not made any commitment to, or assumed any obligation
or liability to any present or future developer, property owner, tenant, consultant, agent,
contractor, user or other party owning or visiting the Site or portion of the Site based upon or
arising out of implementation this SMP. It is expressly understood that while this SMP is
intended to provide guidance and establish a framework for the management of residual
chemicals in deeper soils to protect human health and the environment, this SMP shall not
create any warranties or obligations to Amec Foster Wheeler as to implementation, adequacy,
or success of protective measures under this SMP.
Amec Foster Wheeler Environment & Infrastructure, Inc.
K:\10627.003.0\Soil Mat Plan\Soil Management Plan Pechinev r2.docx _ 12
8.0 REFERENCES
AMEC Environment & Infrastructure, Inc. (AMEC), 2012a, Feasibility Study, Former Pechiney
Cast Plate, Inc. Facility, 3200 Fruitland Avenue, Vernon, California, May 7.
AMEC, 2012b, Remedial Action Plan, Former Pechiney Cast Plate, Inc. Facility, 3200
Fruitland Avenue, Vernon, California, June 28.
AMEC, 2013a, Final Phase I Completion Report, Former Pechiney Cast Plate, Inc. Facility,
3200 Fruitland Avenue, Vernon, California, June 6 then revised November 13.
AMEC, 2013b, Phase V Completion Report, Former Pechiney Cast Plate, Inc. Facility, 3200
Fruitland Avenue, Vernon, California, September 26.
AMEC, 2013c, Phase III, IV, and VI Completion Report, Former Pechiney Cast Plate, Inc.
Facility, 3200 Fruitland Avenue, Vernon, California, October 7.
AMEC, 2013d, Phase II Completion Report, Former Pechiney Cast Plate, Inc. Facility, 3200
Fruitland Avenue, Vernon, California, November 7.
Department of Toxic Substances Control, 2001, Information Advisory Clean Imported Fill
Material.
Amec Foster Wheeler Environment & Infrastructure, Inc.
K \10627.003 0\Soil Mat Plan\Soil Management Plan Pechiney r2.docxKA19627.903.0k8eil Mgt Plaskgeil Management Plan—Peehiney13
I,wq:I I a y 8l
LETTER REGARDING SEWER CREDITS
WLS11261971756.8
COUNTY SANITATION DISTRICTS
OF LOS ANGELES COUNTY
1955 Workman Mill Road, Whittier, CA 90601-1400
Mailing Address: P.O. Box 4998, Whittier, CA 90607-4998
Telephone: (562) 699-7411, FAX: (562) 699-5422
www.locsd.org
Mr. Gerald Pepper
Pechiney Cast Plate, Inc.
2700 Daybreak Parkway
South Jordan, Utah 84095
Dear Mr. Pepper:
GRACE ROBINSON HYDE
Chief Engineer and General Manager
October 22, 2015
File No.: 23-15-016885
Facility ID: 2098913
Capacity Units Allocation Request
3200 Fruitland Avenue
Vernon, California 90058
The County Sanitation Districts of Los Angeles County (Sanitation Districts) have
reviewed and approved your July 24, 2015, capacity unit allocation request. The total
940.62 capacity units have been allocated as summarized in the table below:
Entity
Parcels
apacity Units Assigned
Pechiney Cast Plate Inc.
6310-008-020 and -021 -
740.00
Boyle at 54th LLC
6310-008-010 -011, -019
200.62
The credit allocation is allowed based upon the fact that all parcels listed above had all
buildings demolished and were owned by Pechiney Cast Plate, Inc.
If you have any questions regarding this requirement, please contact Alicia Barrera of the
Sanitation Districts' Industrial Waste Section at (562) 908-4288, extension 2918.
Very truly yours,
Laurence H. Smith
Supervising Engineer
Industrial Waste Section
LHS:AB:tld
cc: Kimberly Holland-Chomisky, Amec Foster Wheeler
DOC #: 3490799
STAFF REPORT
N 0'', _a 2 �)15
CITY CLIH'� OFFICE
40
STAFF REPORT
CITY ADMINISTRATION
DATE: November 17, 2015
TO: Honorable Mayor and City Council
r
FROM: Mark C. Whitworth, City Administrator L
Originator: Alex Kung, Economic Developme ager
RE: Approval of Ratification of the Second Amendment to the Agreement
Regarding Assignment and Assumption of Purchase and Sale Agreement
with Fruitland Owner, LLC (COX) for the property located at 3200
Fruitland Avenue
Recommgndation
A. Find that approval of the ratification of the Second Amendment to the agreement regarding
assignment and assumption 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.
B. Approve the Ratification of the Second Amendment to the Agreement Regarding
Assignment and Assumption of Purchase and Sale Agreement with Fruitland Owner, LLC
for the property located at 3200 Fruitland Avenue, in substantially the same form as
submitted herewith.
Background
At the August 12, 2015 meeting the City Council adopted Resolution No. 2015-57 which
approved the assignment of approximately 14.53 acres of unimproved property located at 3200
Fruitland Avenue to COX for $22,556,769 for the purpose of redevelopment. Since the approval
the City granted COX an amendment to the agreement to correct the Escrow Agent. Below is a
summary of the terms and agreements in the attached second amendment.
Summary of the terms and agreement:
1) Due RiliigeUce_rer, iod: The Due Diligence Period has ended with the signing of the
agreement. An additional $250,000 deposit was paid to the City. Commencing
November 2, 2015, Cox shall pay an additional $25,000 per month to the City.
2) Cl_si_ ate: No later than December 30, 2015 with an extension up to sixty days.
3) Power Purchase Agreement: A power purchase agreement shall agree to the form of
the Power Purchase Agreement and related Added Facilities Agreement.
4) Land Use Covenant: Agreement to the Land Use Covenant.
5) Cox's Conditions to Closing: 1) rPlanet Earth Los Angeles LLC (recycling
manufacturing business) shall have obtained the Conditional Use Permit from the City.
At the November Yd, 2015 meeting the City Council approved the Conditional Use
Permit for rPlanet Earth Los Angeles LLC. 2) The approval of the Soil Management Plan
from the California Department of Toxic Substances Control and any other necessary
governmental agencies.
Fiscal Impact
$250,000 due to the extension
Attachment
1. Second Amendment to Agreement Regarding Assignment and Assumption of Purchase and
Sales Agreement between City of Vernon and Fruitland Owner LLC
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND RATIFYING THE EXECUTION OF A
SECOND AMENDMENT TO AGREEMENT REGARDING ASSIGNMENT
AND ASSUMPTION OF PURCHASE AND SALE AGREEMENT BY
AND BETWEEN THE CITY OF VERNON AND FRUITLAND OWNER,
LLC FOR PROPERTY LOCATED AT 3200 FRUITLAND AVENUE
WHEREAS, on March 22, 2006, the City Council of the City of
Vernon adopted Resolution No. 8995, as amended on May 3, 2006, April 7,
2015, and June 11, 2015, approving a Standard Offer, Agreement and
Escrow Instructions and Addendum with Pechiney Cast Plate, Inc.
("Pechiney") for the purchase of property located at 3200 Fruitland
Avenue (the "Property"); and
WHEREAS, on August 18, 2015, the City Council of the City of
Vernon adopted Resolution No. 2015-57, as amended on August 21, 2015,
approving an Agreement regarding Assignment and Assumption of Purchase
and Sale Agreement (the "Agreement") by and between the City of Vernon
("City") and Fruitland Owner, LLC ("COX") for property located at 3200
Fruitland Avenue to assign the City's right, title and interest in, to
and under the Agreement to COX; and
WHEREAS, on October 27, 2015, the City and COX executed a
Second Amendment to the Agreement (the "Amendment") to amend certain
provisions of the Agreement including, but not limited to the due
diligence period, closing date, conditions of closing, subject to the
ratification by the City Council; and
WHEREAS, the City Council of the City of Vernon desires to
approve the Amendment and ratify the execution thereof.
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 and ratifies the execution of the Second Amendment to
Agreement regarding Assignment and Assumption of Purchase and Sale
Agreement with Fruitland Owner, LLC (the "Amendment"), a copy of which
is attached hereto as Exhibit A.
SECTION 4: 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 5: 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 Fruitland Owner, LLC.
- 2 -
SECTION 6: 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 17th day of November, 2015.
ATTEST:
City Clerk / Deputy City Clerk
Name:
Title: Mayor / Mayor Pro-Tem
- 3 -
EXHIBIT A
Second Amendment to
Agreement Regarding Assignment and Assumption of Purchase and Sale Agreement
THIS SECOND AMENDMENT TO AGREEMENT REGARDING ASSIGNMENT
AND ASSUMPTION OF PURCHASE AND SALE AGREEMENT (this "Amendment") is
made and entered into as of OctoberZ1, 2015 (the "Effective Date"), by and between the City
of Vernon ("City"), and Fruitland Owner LLC, a Delaware limited liability company ("COX").
City and COX are each referred to herein as a "Party" and are collectively referred to as the
"Parties".
RECITALS
A. City, as buyer, and Pechincy Cast Plate, Inc., as seller ("Seller"), are parties to
that certain Standard Offer, Agreement and Escrow Instructions for the Purchase of Real Estate
dated as of March 20, 2006 ("Original Agreement"), with attached Addendum dated 'March 20,
2006 ("Addendum"), as amended by that certain First Amendment to the same dated as of
June 15, 2006 ("First Amendment"), as further amended by that certain Second Amendment
dated as of April 7, 2015 (the "Second Amendment"), as further amended by that certain Third
Amendment dated as of June 11, 2015 (the "Third Amendment"). The Original Agreement as
amended by the Addendum, the First Amendment, the Second Amendment and the Third
Amendment shall hereinafter be referred to as the "Purchase Agreement".
B. Seller owns fee simple title to certain real property located in Vernon, California
and described more particularly in the Purchase Agreement (together with the Buyer UP Land,
(as rei:erenced in Section 4.1 of the Second Amendment) the. "Property").
C. Pursuant to the terms and conditions of the Purchase Agreement, City has agreed
to buy, and Seller has agreed to sell to City, the Property.
D. Pursuant to the terms and conditions of that certain Agreement Regarding
Assignment and Assumption of Purchase and Sale Agreement, dated as of August 4, 2015,
executed by and between the City and COX, as amended by that certain Amendment. to
Agreement Regarding Assignment and Assumption of Purchase and Sale Agreement, dated as of
August 21, 2015 (as amended, the "Assignment"), City assigned its right, title and interest in, to
and under the Purchase Agreement to COX.
E. The Parties desire to further amend the Assignment as set forth herein.
F. All capitalized terns not otherwise defined herein shall have the meanings given
to such terms in the Assignment.
AGREEMENT
For good and valuable consideration, the receipt ol' which is hereby acknowledged, COX
and City hereby agree as follows:
WLS'1V261971756.8
1. Amendments.
a. Due Diligence Period. Notwithstanding anything to the contrary contained in the
Assignment, as consideration for this Amendment, the parties hereby agree as
follows:
i. The Due Diligence Period has ended. COX has no further rights to extend
the Due Diligence Period;
ii. No later than one (1) business day following the full execution and
delivery of this Amendment, and as a condition precedent to the
effectiveness of this Amendment, the Escrow Agent shall disburse the
entire Deposit in the amount of $250,000.00 to the City pursuant to
unilateral instructions received from the City and without the need for any
approval of, or instruction from, COX;
iii. Commencing on November 2, 2015, and on the first calendar day of each
month thereafter until Closing (or the succeeding business day if the 1st
day of the calendar month is not a business day), COX shall pay an
additional $25,000.00 per month to the City as consideration for the
Extension Fee payable by the City to Seller under the Purchase
Agreement; and
iv. For avoidance of doubt, the amounts released to the City pursuant to
subparagraphs 1(a)(ii) and I(a)(iii) above shall not be credited against the
Purchase Price at Closing and are deemed fully earned, and
nonrefundable, upon payment to the City. The same are independent
consideration for City's agreements herein.
v. Without limitation to the foregoing, it is acknowledged that upon the
release of the amounts set forth in subparagraph I (a)(ii) above, the Deposit
will have been reduced to zero. As such, any and all references to the
Deposit in the Agreement, including any refund or return of the same to
COX, are of no further force or effect. In addition, because the Deposit
has been reduced to zero, COX's obligation under Section 3.4 of the
Purchase Agreement to deliver at Closing the "balance of the Purchase
Price" means that COX will deliver at Closing the entire amount of the
Purchase Price. No portion of the amounts of the Deposit released to
Seller hereunder will be credited to the Purchase Price, as noted in
subparagraph I (a)(iv) above.
b. Closing. The first sentence of Section 9 of the Assignment is hereby amended in
its entirety as follows: "The closing of the assignment of the Purchase Agreement
contemplated by this Agreement ("Closing") shall be the date that is thirty (30)
days after the date that the conditions precedent to Closing, under Section 11.4
and 11.5 of this Agreement, have been satisfied (the "Closing Date"); provided,
however, in no event shall the Closing Date occur later than December 30, 2015
(the "Outside Closing Date"), as such date may be extended as provided herein.
2
WESM61971756.8
Notwithstanding the foregoing, either the City or COX shall have the unilateral
right upon written notice thereof to the other party to extend the Outside Closing
Date on one or more occasions for up to sixty (60) days in the aggregate in order
to satisfy the conditions precedent to Closing set forth in Sections 11.4 and 11.5.
If the conditions precedent under Section 11.4 and/or 11.5 of this Agreement have
not been satisfied by the Outside Closing Date, subject to City's and COX's right
to extend the same, COX may either (i) waive such conditions and proceed to
Closing or (ii) terminate the Agreement by notice to the City, in which case
neither party shall have any further obligations hereunder, except to the extent of
any obligations which are stated to survive."
c. Power Purchase Agreement. The parties hereby agree that the form of the Power
Purchase Agreement and related Added Facilities Agreement referenced in
Sections 10.3 and 11.3 of the Assignment have been approved by the parties in
the forms attached hereto as Exhibit A-1 and A-2.
d. Land Use Covenant. The parties hereby agree that that certain Land Use
Covenant and Agreement with Environmental Restrictions, in the draft form
provided by the relevant governmental agencies, has been approved by COX, a
copy of which is attached hereto as Exhibit B.
e. COX's Conditions Precedent. Section 11 of the Assignment is hereby amended
to add the following as Section 11.4 and Section 11.5 thereof:
"l 1.4 The Conditional Use Permit for rPianet Earth Los Angeles LLC shall have
been obtained.
11.5 The Soil Management Plan as referenced in the Land Use Covenant and
Agreement with Environmental Restrictions, shall have been approved by the
California Department of Toxic Substances Control and any other necessary
governmental agencies."
A copy of the Soil Management Plan, in its current form, is attached hereto as
Exhibit C. COX has reviewed and approves of the Soil Management Plan in such
form.
f. Condition Precedent to this Amendment. Notwithstanding anything to the
contrary contained herein, the parties hereto acknowledge and agree that, for the
benefit of the City, the effectiveness of this Amendment is contingent upon Xebec
Realty Partners, or its subsidiary that owns the property adjacent to the Property
(which it acquired from Seller), executing and delivering to City such additional
documents, if any, as may be reasonably be necessary to further memorialize the
transfer to the Property of certain sewer capacity water discharge units from the
adjacent land, as noted in the document attached hereto as Exhibit D.
2. Miscellaneous.
3
W] ST'1261971756.8
a, Except to the extent expressly modified by this Amendment, the Assignment is
ratified and remains in full force and effect. To the extent of any inconsistency between this
Amendment and the Assignment, the terms and conditions of this Amendment shall control.
b. This Amendment may be executed in multiple counterparts, all of which, taken
together, shall constitute one document, This 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.
[Signature Pages Follow]
4
WEs'11261971756.8
IN Wl VNESS W1 JERE10F, the Parties have caused their duly authorized represent.nives
to eXCCUtC this Amendment as of the Effective Date.
CCTV:
City' of Vernon
- ------ -----
Ndme: Michael W. McCormick
Title: Mavor
13
Name: M ria E. Avalal
Title: City Clerk
.App!-oved as to form:
DIA Piper LIT (US), Special Counsel to Buyer
ISionevures contimie on next 17(igel
WLS i,20 I
COX:
FRUITLAND OWNER LLC,
a Delaware limited liability company
By: Fruitland JV LLC,
a Delaware limited liability company,
its Sole Member
By: Fruitland COX Venture LLC,
a Delaware limited liability company,
its Sole Member
By: CAM Fruitland Capital LLC,
a Delaware limited liability company,
its Sole Member
By: Cohen Holdings 2015 LLC,
a Delaware limited liability company,
its Sole Member
B-y:
Name: Bradley S. Cohen
Title: President & CEO
[Signatures continue on next page]
WEST261971756.8
ESCROW AGENT:
ESCROW AGENT, by its execution below, hereby accepts (as of the date first
above written) the foregoing Amendment and agrees to act as Escrow Agent under the
Assignment in strict accordance with its terms.
FIRST AMERICAN TITLE INSURANCE
q190jurl
By:
Name: (,L r6CC Pik
Its:
WEST\261971756.8
EXHIBIT A-1
FORM OF ADDED FACILITIES AGREEMENT
WEST\261971756.8
CITY OF VERNON
ADDED FACILITIES AGREEMENT
1. PARTIES: The Parties to this Added Facilities Agreement ("Agreement") are
RPLANET EARTH LOS ANGELES, LLC, a Delaware limited liability company ("Customer")
and the City of Vernon, a California municipal corporation ("City"), hereinafter referred to
individually as "Party" and collectively as "Parties."
2. RECITALS:
2.1. City and the Customer (or, an affiliate of the Customer) are entering into
this Agreement with respect to the electric service delivery to the property located at 3200
Fruitland, Vernon, California (the "Property").
2.2. Customer has requested to receive electric service from City at a single or
totalized point of 16 kV delivery starting on or about the Start Date (as defined below) at an
initial service level of 5,750 kW demand based on an estimated 9,000 kW of connected load with
a potential service level of 11,000 kW demand based on an estimated 19,000 kW of connected
load.
2.3. Parties agree that City shall provide the design, engineering, procurement,
construction, installation, ownership, and maintenance of the electric facilities described in
Exhibit A, and hereinafter referred to as "Added Facilities", the cost of which shall be paid solely
by the Customer in accordance herewith. .
2.4. Parties agree that in -lieu of constructing a 66 kV substation at the
Customer property, Customer shall pay to City $1,000,000 in aid of construction to upgrade the
City' electrical substation transformers (the "In Lieu Fee").
2.5. Parties agree that the City shall extend a new 16 KV line from inside the
City's electrical substation to the customer's property line to be identified as a 16 KV line
extension (the "Line Extension"). Customer shall pay for the Line Extension in accordance
herewith. For purposes of determining the Added Facilities Installation Costs and Added
Facilities Monthly Charge, the line extension is excluded from the list of Added Facilities.
2.6. Parties agree that Customer shall deliver to an escrow account established
by the City and Customer the amount specified herein, which amounts will be used to pay to the
City and/or its contractors all Added Facilities Installation Costs (as defined below) and Line
Extension Costs (as defined below).
3. AGREEMENT: Parties agree to the terms and conditions set forth herein,
including Exhibits A through E, attached hereto and incorporated herein by this reference.
4. EFFECTIVE DATE AND TERM:
4.1. This Agreement shall be effective upon execution by the Parties and
approval by the City Council of the City of Vernon.
/-00001/1 0-28-15/jind/jind W ES M63631313.4
4.2. This Agreement shall continue in effect until (a) Customer gives notice of
termination of service in accordance with Vernon's Rules for Electric Service (as amended, the
"Electric Service Rules"), (b) this Agreement is terminated by City due to an Event of Default by
Customer (c) this Agreement is terminated by City due to a Failure to Commence Operations by
Customer, ten (10) business days after notice from City to Customer, or (d) this Agreement is
terminated pursuant to Section 19;
4.3. If this Agreement is terminated, Customer shall pay within ten (10)
business days after notice from City (a) all unpaid Added Facilities Installation Costs, Added
Facilities Monthly Charges and any other amounts owed by Customer hereunder, in each case
through the date of termination, and (b) the Termination Fee, as described on Exhibit C.
Customer's obligations to pay such amounts shall survive the termination of this Agreement. If
the Customer has elected to terminate this Agreement, such termination shall not be effective
unless and until such amounts are paid in full.
5. DEFINITIONS: The following terms, when used herein with initial
capitalization, whether in the singular or the plural, shall have the following meanings:
5.1. Added Facilities: The facilities to be designed, engineered and
constructed as specified in Exhibit A, all of which are being allocated for the Customer's use and
benefit as Added Facilities. Any upgrades or improvements associated with such Added
Facilities will be mutually agreed upon by Customer and City in writing and will thereafter
automatically become part of the Added Facilities.
5.2. Added Facilities Installation Costs: All costs and expenses incurred by
City in relation to the design, engineering, procurement, construction, and installation of the
Added Facilities, including without limitation the reasonably allocated costs of internal City
employees involved with such design, engineering, procurement, construction and installation.
Customer acknowledges that the Added Facilities Installation Costs may be based on prevailing
wages and other regulatory requirements. The Added Facilities Installation Costs shown on
Exhibit A are estimates only. If the final Added Facilities Installation Costs differ from the
estimates, the Added Facilities Installation Costs will be equal to such final amount and Exhibit
A, and related calculations in Exhibits B and C, shall be deemed automatically amended to
reflect the same.
5.3. Added Facilities Monthly Rate: The Added Facilities Monthly Rate
pursuant to Exhibit B.
5.4. Agreement and Amendments: This Agreement, including all attachments
and exhibits hereto, as may be amended from time to time. Modifications and amendments to
this Agreement shall be valid and enforceable only if in writing and signed by the Parties, or as
otherwise expressly provided herein.
5.5. Added Facilities Monthly Charge: The charge to Customer for Added
Facilities that is payable monthly to City as outlined in Exhibit C, as may be modified in
accordance herewith. The Added Facilities Monthly Charge recovers replacement, operations
and maintenance of all facilities that are allocated for Customer's exclusive use consisting of
/-00001 / 10-28-15/jmd/jmd -2- W ES T1263631313.4
distribution transformers, pad -mounted switches, pad -mounted primary metering cabinets, 16
KV cabling from pad -mounted switches to distribution transformers and 600 Volts cabling from
the transformers to the customer furnished electric panels and low voltage metering and all
necessary hardware to deliver a reliable and efficient power delivery. The Added Facilities
Monthly Charge does not include the costs of the Line Extension, as the City will be fully
responsible for its upkeep.
5.6. Completion Date. December 15, 2016, subject to uncontrollable forces as
described in Section 11 below.
5.7. Effective Date. The date set forth in Section 30 below.
5.8. In Lieu Fee. $1,000,000 in cash and immediately available funds, as
contemplated by Section 2.5.
5.9. Line Extension. As generally described in Section 2.6, and more
particularly described on Exhibit A-1.
5.10. Line Extension Costs. All costs and expenses incurred by City in relation
to the design, engineering, procurement, construction, and installation of the Line Extension,
including without limitation the reasonably allocated costs of internal City employees involved
with such design, engineering, procurement, construction and installation, estimates of which are
provided on Exhibit A-L Customer acknowledges that the Line Extension Costs may be based
on prevailing wages and other regulatory requirements. The Line Extension Costs shown on
Exhibit A-1 are estimates only. If the final Line Extension Costs differ from the estimates, the
Line Extension Costs will be equal to such final amount and Exhibit A-1, and related
calculations on Exhibit C, shall be deemed automatically amended to reflect the same.
5.11. Reserve Amount. An amount equal to two hundred percent of the
estimated Added Facilities Installation Costs and Line Extension Costs, which based on Exhibits
A and A-1 as of the Effective Date and as applied to Phase I of the Added Facilities only, is
equal to $2,300,000.
5.12. Services: The design, engineering, procurement, construction, installation,
ownership, replacement, operation and maintenance of the Added Facilities.
5.13. Start Date. The date that is thirty (30) days following the date upon which
the City has completed the installation of the Added Facilities.
6. ADDED FACILITIES: LINE EXTENSION:
6.1. The Added Facilities will be located at the Property. Added Facilities
consist of, among other things, construction and installation of distribution transformers and
apparatus delivering multiple 277/480 volt service points for the benefit of the Customer on the
terms and conditions set forth in this Agreement. The Added Facilities allocated for Customer's
exclusive use shall be installed in or on Customer's furnished underground infrastructure
consisting of conduit banks, transformer concrete pads, switching concrete pads, primary
/-00001 / 10-28-15/jmd/jmd -3- WEsT\263631313.4
metering concrete pads and protective barriers, all of which are to be provided by Customer at
Customer's sole cost and expense.
6.2. City shall perform all of the Services related to the Added Facilities and
the Line Extension.
6.3. Subject to Customer's fulfillment of the conditions precedent set forth in
Section 19 below, City will (a) commence performance of the design and construction of the
Line Extension and Phase 1 of the Added Facilities, as described on Exhibit A, upon full
execution of this Agreement and (b) use commercially reasonable efforts to install the Line
Extension and Phase 1 of the Added Facilities by the Completion Date, so that they are fully
operational upon the issuance of a "Certificate of Occupancy" for the Property (which is
estimated by Customer to be obtained on or before December 31, 2016).
6.4. Added Facilities and the Line Extension shall at all times remain the
property of City.
6.5. At Customers election, the Added Facilities are being constructed in two
phases as described on Exhibit A. The facilities constructed in Phase 1 shall be adequate to serve
the initial 5,750 kW contract demand. The Added Facilities constructed in Phase 2 shall be
adequate to accommodate Customer's electric demand of with a potential of 11,000 kW.
6.6. Customer shall install the underground infrastructure consisting of conduit
banks, concrete pads and protective barriers for all phases prior to final paving of the Property
and in all cases in a timely manner to ensure City's ability to perform the installation of the
Added Facilities in accordance herewith.
6.7. City shall exercise commercially reasonable efforts to complete the
installation of Phase 1 of the Added Facilities and Line Extension per the Project Schedule
included as Exhibit D. However, City shall not be liable for any cost or damage incurred by
Customer because of any delay in the commencement, progress or completion of the installation
of any Added Facilities or the Line Extension.
6.8. City shall construct and maintain the Added Facilities and Line Extension
diligently pursuant to all applicable federal, state and local safety codes, regulations, and laws,
including but not limited to the requirements of California's General Orders No. 95, 128 and 165.
Customer shall have the exclusive right of use of the Added Facilities located on the property.
6.9. Prior to the date on which City completes the Added Facilities and
provides electrical service to Customer at the Property, Customer shall have obtained and paid
for all necessary local and state licenses and permits for operation of its business including City
of Vernon building, electrical and mechanical permits, health permit, certificate of occupancy,
business license, etc. City shall not provide electrical service under this Agreement until
Customer has notified City in writing of its date of commencing operations, which shall not
occur prior to the date on which Customer has obtained all of such licenses and permits.
6.10. Notwithstanding anything to the contrary herein, City will not commence,
and shall have no obligations with respect to, Services relating to Phase 2 of the Added Facilities
/-00001 / 10-28-15/jmd/jmd -4- WEST263631313.4
until such time as Reserve Funds therefore have been deposited with the Escrow Agent, as
provided in Section 19 below.
7. CHARGES:
7.1. Customer agrees to pay the Added Facilities Installation Costs, the Added
Facilities Monthly Charge, the Line Extension Costs and the Termination Fee in accordance
herewith.
7.2. Within three (3) business days after the Effective Date, Customer shall pay
to City, pursuant to wiring instructions provided by the City, the In Lieu Fee.
7.3. If at any time Customer requests upgrades to the Added Facilities for
Customer's convenience, City shall determine if such upgrades are feasible. If such upgrades are
made at Customer's request for Customer's convenience and benefit, the costs shall be paid by
Customer at the times and on the basis as agreed to by the Parties at the time.
7.4. The Added Facilities Monthly Charge will commence upon the Start Date.
7.5. MODIFICATIONS OR REPLACEMENT OF ADDED FACILITIES
AND LINE EXTENSION: Whenever Added Facilities and/or components of the Line
Extension are repaired or replaced due to damage or equipment failure, the work shall be
completed at City's sole expense in accordance with good utility practice, pursuant to all
applicable federal, state and local safety codes, regulations and laws, including but not limited to
the requirements of California General Orders No. 95, 128 and 165. Notwithstanding the
foregoing, if the damage or equipment failure is caused by or due to action or inaction by the
Customer, then the Customer shall be solely responsible for the entire cost of repair or
replacement and shall pay the same to City within ten (10) business days after demand therefor.
Where an upgrade or improvement to the Added Facilities or Line Extension is required for
City's convenience or necessity, no increase shall be made in the investment amount for Added
Facilities, the Added Facilities Installation Cost, Line Extension Costs or the Added Facilities
Monthly Charge. Such upgrades or improvements shall be reasonably coordinated with
Customer prior to any such upgrades or improvements made in order to avoid unreasonable
interruption of Customer's operations.
7.6. Subject to Section 7.5, City shall be responsible for all routine
maintenance and repairs required to maintain the Added Facilities and Line Extension in good
operating condition and shall make those capital expenditures (including capital repairs and
replacements, as necessary) required to maintain the Added Facilities and Line Extension.
8. RIGHT-OF-WAY: Customer understands that property owner grants to City the
right of ingress to and egress from Customer's Property as determined by City in its sole
discretion for any purpose connected with the construction, operation, and maintenance of the
Added Facilities and Line Extension. Customer agrees to provide right-of-way or easements of
sufficient space to provide legal clearance from all structures now or hereafter erected on
Customer's Property for any facilities of City. Customer and property owner will promptly
execute a recordable document, based on the City's customary form, evidencing the above
/-00001/10-28.15JmdJmd -5- WES R263631313.4
described right of ingress and egress and right-of-way or easement, with the recordation costs to
be borne by City.
9. BILLING AND PAYMENT:
9.1. City shall prepare and deliver monthly bills to Customer for the Added
Facilities Monthly Charge.
9.2. The Customer shall pay the Added Facilities Monthly Charge concurrently
with its electric service bills. Late charges will be applied pursuant to City's Electric Service
Rules.
10. NOTICES: Except as otherwise provided in this Agreement, any notice, demand,
or request provided for in this Agreement, or served, given, or made in connection with the
Agreement, shall be in writing and shall be deemed properly served, given, or made if delivered
in person, or sent by United States Mail, postage prepaid, or sent by reputable overnight delivery
service, to the address specified below
Company: RPLANET EARTH LOS ANGELES, LLC
Attention: Robert Daviduk, Co -CEO
Address: 2361 Rosecrans Ave., Suite 336
City, State, Zip: El Segundo, CA 90245
Telephone: (310) 527-0733
Email: bob e,rplanetearth.com
Copy to:
Allen Matkins Leck Gamble Mallory & Natsis LLP
Attention:
Joe M. Davidson, Esq.
Address:
501 W. Broadway, 15'h Floor
City, State, Zip:
San Diego, CA 92101
Email:
javidson@allenmatkins.com
Vernon: Vernon Gas & Electric Department
Attention: Carlos Fandino, Director
Address: 4305 Santa Fe Avenue
City, State, Zip: Vernon, CA 90058
Telephone: (� -
Email:
Copy to: City Attorney's Office
Attention: Hema Patel, City Attorney
Address: 4305 Santa Fe Avenue
City, State, Zip: Vernon, CA 90058
Either Party may at any time, by notice to the other Party, change the designation or address of
the person so specified as the one to receive notices pursuant to this Agreement. Notices are
deemed given and received on the date of delivery or attempted delivery, if delivery is not
accepted.
/-00001/10-28-15/jmd/jmd -6- WEST1263631313.4
11. FORCE MAJEURE: Neither Party shall be considered to be in default in the
performance of any of its obligations under this Agreement (other than obligations to make
payments pursuant to this Agreement) when failure of performance shall be due to
uncontrollable forces. The term "uncontrollable forces" means any cause beyond the control of
the Party failing to perform, including, but not restricted to, failure of facilities, flood,
earthquake, storm, lightning, fire, epidemic, war, riot, terrorism, civil disturbance or
disobedience, labor dispute, labor or material shortage, sabotage, restraint by court order or
public authority, and action or non -action by, or inability to obtain the necessary authorizations
or approvals from, any governmental agency or authority which by exercise of due diligence
such Party could not reasonably have been expected to avoid and which by exercise of due
diligence it has not overcome. Either Party rendered unable to fulfill any of its obligations under
this Agreement by reason of an uncontrollable force shall give prompt written notice of such fact
to the other Party and shall exercise due diligence to remove such liability. Nothing contained
herein shall be construed to require a Party to settle any strike or labor dispute in which it may be
involved.
12. INDEMNIFICATION AND LIMITATIONS ON LIABILITY:
12.1. Except to the extent of City's gross negligence or willful misconduct,
Customer agrees to indemnify, defend, and hold harmless City of and from any and all claims,
causes of action, damages and judgments arising out of any act or omission of City, and its
officers, directors, employees and agents that may have caused injury or damage to any person,
or to the equipment, fixtures, goods, products, or other property of the Customer, the Customer's
employees, contractors, invitees, customers, or any other person in or about the Property,
regardless of cause or whether or not such injury or damage results from conditions arising from
Services provided by City hereunder or the installation, operation or maintenance of the Added
Facilities and/or Line Extension or any failure of the Added Facilities or Line Extension to
deliver electrical power or any defect in the Added Facilities and/or Line Extension, or
explosion, fire, or steam released from the Added Facilities and/or Line Extension.
12.2. Notwithstanding either Party's negligence or breach of this Agreement,
under no circumstances shall either Party be liable to the other Party for indirect, special, or
consequential loss, damage, claim, cost, charge, or expense including, but not limited to, loss of
business or any loss of income or profit therefrom, loss of use of a Party's facilities, loss of
revenue, cost of replacement power or water, and claims of any third party, including any
customer of the other Party.
13. ENTIRE AGREEMENT: This Agreement, including Exhibits A through E, the
Agreement for Economic Development Incentive on Electric Service entered into by and
between the City and Customer of even date herewith constitutes the complete and final
expression of the agreement between the Parties and is intended as a complete and exclusive
statement of the terms of their agreement which supersedes all prior and contemporaneous offers,
promises, representations, negotiations, discussions, communications, and other agreements
which may have been made in connection with the subject matter of this Agreement.
14. RELATIONSHIP OF PARTIES: The covenants, obligations, and liabilities of the
Parties are intended to be several and not joint or collective, and nothing contained in this
/-00001 / 10-28-15/jmd/jmd -7- W EST1263631313.4
Agreement shall ever be construed to create an association, joint venture, trust or partnership, or
to impose a trust or partnership covenant, obligation, or liability on or with regard to either Party.
Each Party shall be individually responsible for its own covenants, obligations, and liabilities as
provided in this Agreement. Neither Party shall be under the control of the other Party. Neither
Party shall be the agent of or have a right or power to bind the other Party without such other
Party's express written consent.
15. NO THIRD -PARTY RIGHTS: The parties do not intend to create rights in, or to
grant remedies to, any third Party as a beneficiary either of this Agreement or of any duty,
covenant, obligation, or undertaking established herein.
16. ARBITRATION: The Parties agree that any and all disputes arising out of or in
relation to this Agreement, including without limitation any action in tort, shall be resolved
exclusively, finally and conclusively by arbitration in Los Angeles County, California under the
auspices of and pursuant to the rules of the Judicial Arbitration & Mediation Services, Inc.
(JAMS). Each Party will select an arbitrator. Those two arbitrators will then select a third. The
three member panel will make the final decision. All decisions of the arbitrators shall be in
writing, and the arbitrators shall provide written reasons for their decision. The arbitration
decision shall be final, unappealable and binding on the parties. Notwithstanding the foregoing,
the Parties shall be permitted to access the court system to enforce any arbitration award or to
obtain injunctive relief. The exclusive jurisdiction and venue for any such action shall be the
Superior Court of California, Los Angeles County.
17. ATTORNEYS' FEES: If either Party institutes an action or legal proceeding
arising out of or related to this Agreement or the relationship of the Parties or their rights or
duties in connection with the matters set forth in this Agreement, whether sounding in tort,
contract, or otherwise, the prevailing Party in such action or proceeding shall be entitled to
recover from the other party all costs and expenses, including all costs and reasonable attorneys'
fees, in addition to any other remedy awarded by the arbitration panel.
18. INSURANCE: Customer shall, for the duration of this Agreement, obtain and
maintain at its own expense, premises liability coverage with a minimum combined single limit
of $1,000,000 per occurrence and provide City with proof of insurance providing and
maintaining the coverages and endorsements set forth herein. Said proof of insurance shall also
provide that said policy or policies shall not be canceled or materially reduced in coverage
without giving at least thirty (30) days prior written notice to the City. The insurance coverage
as listed herein, shall be properly endorsed to include those contractual obligations which may be
identified further within this Agreement and shall be endorsed to provide City all the rights and
privileges of an additional insured. Customer shall cause its insurers to issue, including but not
limited to, Certificates of Insurance or, upon request, certified copies of the insurance policies
evidencing that the coverages and policy endorsements required under this Agreement, are
maintained in force.
19. CONDITIONS PRECEDENT:
subject to the following conditions precedent:
City's obligations under this Agreement are
/-00001/10-28-15/jmd/jmd -8- WES R263631313.4
19.1. Within three (3) business days after the Effective Date, Customer shall
deliver to Commonwealth Land Title Insurance Company, Attention: Mai Ly Marsh ("Escrow
Agent"), in immediately available funds an amount equal to the Reserve Amount (the "Reserve
Funds"). City will be entitled to use the Reserve Funds for purposes of paying the Added
Facilities Installation Costs and Line Extension Costs. From time to time, as the City progresses
with the Services regarding the Added Facilities and/or Line Extension, the City may request a
disbursement from the Escrow Agent in order to pay Added Facilities Installation Costs and/or
Line Extension Costs. Escrow Agent shall, without further authorization or approval from
anyone, disburse the requested amount to City. If City at any time determines that the Reserve
Funds are insufficient to pay the Added Facilities Installation Costs and/or Line Extension Costs
(the insufficient amount being the "Deficiency"), Customer shall, within five (5) business days
after notice thereof from City, deliver to Escrow Agent an amount equal to 200% of such
Deficiency. Upon completion of the installation of the Added Facilities and Line Extension and
payment of all Added Facilities Installation Costs and Line Extension Costs, any balance of the
Reserve Funds remaining with the Escrow Agent shall be released and refunded to Customer
upon a joint written instruction of City and Customer.
19.2. Within three (3) business days after the Effective Date, Customer shall
have paid to City the In Lieu Fee.
19.3. If said conditions are not satisfied on or before the deadlines indicated,
and such failure continues for three (3) days after notice from City to Customer, City may
terminate this Agreement by notice to Customer.
19.4. As and when Customer elects for the City to proceed with Services
relating to Phase 2 of the Added Facilities, Customer shall cause to be deposited with Escrow
Agent Reserve Funds for the estimated Added Facilities Installation Costs relating to Phase 2.
Use of such funds will then be governed by Section 19.1 above. City will provide such estimate
at such time. The current estimate is set forth on Exhibit A.
20. EVENTS OF DEFAULT:
20.1. Any failure of a Party to perform its obligations hereunder that is not
cured by the applicable Party within ten (10) business days after delivery of notice of default
from the non -defaulting Party shall constitute an "Event of Default"; provided, however, that
such default (other than with respect to any obligation to pay money in accordance herewith)
shall not constitute an Event of Default if the applicable Party commences to cure the default
within such ten (10) business day period and diligently prosecutes the cure to completion and in
all events cures such default within sixty (60) days after the original notice of default.
20.2. In addition to any other remedies available at law or equity, City shall
have the right, at its option, to terminate this Agreement and to demand payment as described
herein upon the occurrence of an "Event of Default" by or with respect to Customer.
20.3. Upon demand by City following an Event of Default, Customer shall
immediately pay all accrued and unpaid amounts owing by Customer as of the date of
termination and the Termination Fee, as described in Exhibit C, calculated as of the date of
/-00001 / 10-28-15/jmd/jmd -9- W ES11263631313.4
termination. The termination of the obligations of City will not terminate the obligation of
Customer until Customer has repaid City for any costs incurred pursuant to this Agreement.
20.4. Each of the following shall also constitute an Event of Default by
Customer: (a) the making by Customer of any general arrangement or assignment for the benefit
of creditors; (b) Customer becoming a "debtor" as defined in 11 U.S.C. §101 or any successor
statute thereto (unless, in the case of an involuntary petition filed against Customer, the same is
dismissed within 60 days); (c) the appointment of a trustee or receiver to take possession of
substantially all of Customer's assets located at the Property, where possession is not restored to
Customer within 30 days; or (d) the attachment, execution or other judicial seizure of
substantially all of Customer's assets located at the Property, where such seizure is not
discharged within 60 days; provided, however, in the event that any provision of this
subparagraph is contrary to any applicable law, such provision shall be of no force or effect, and
not affect the validity of the remaining provisions.
21. ASSIGNMENT: This Agreement shall bind and inure to the benefit of the Parties
and their respective successors and assigns; provided however, that, Customer shall not assign
this Agreement or any of its rights, duties, or obligations without the prior written consent of
City, which consent shall not be unreasonably withheld.
22. NO WAIVER: No delay or omission to exercise any right, power or remedy
accruing to a Party on any breach or default of the other Party under this Agreement shall impair
any such right, power, or remedy, nor shall it be construed to be a waiver of any such breach or
default, or any acquiescence in such breach or default occurring later; nor shall any waiver of
any single breach or default be considered a waiver of any other prior or subsequent breach or
default. Any waiver, permit, consent, or approval of any kind by a party of any breach or default
under this Agreement, or any waiver of any provisions or condition of this Agreement, must be
in writing and shall be effective only to the extent specifically set forth in that writing.
23. REMEDIES: All remedies, either under this Agreement or by law or otherwise
afforded to a Party, shall be cumulative and not alternative.
24. HEADINGS NOT BINDING: The use of headings in this Agreement is only for
ease of reference, shall have no legal effect and are not to be considered part or a term of this
Agreement.
25. SEVERABILITY: If any portion of this Agreement shall be held by a court of
competent jurisdiction to be invalid, void or otherwise unenforceable, the remaining provisions
shall remain enforceable to the fullest extent permitted by law. Furthermore, to the fullest extent
possible, the provisions of this Agreement (including, without limitation, each portion of this
Agreement containing any provision held to be invalid, void, or otherwise unenforceable that is
not itself invalid, void, or enforceable) shall be construed so as to give effect to the intent
manifested by the provision held invalid, void, or unenforceable.
26. GOVERNING LAW: This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of California, without regard to its conflict of
laws rules.
/-00001/10-28-15/jmd/jmd -10- WES R263631313.4
27. COUNTERPARTS: This Agreement may be executed in counterparts, each of
which shall be deemed to be an original, but all of which, taken together, shall constitute one and
the same agreement.
28. GOVERNING DOCUMENTS: In the event of a conflict between this Agreement
and any other rules or agreements issued by the City of Vernon governing such Added Facilities,
this Agreement shall be primary.
29. SIGNATURE CLAUSE: The signatories hereto represent that they have been
appropriately authorized to enter into this Agreement on behalf of the Party for whom they sign.
30
Effective Date. This Agreement is
(the "Effective Date").
CUSTOMER
THE CITY OF VERNON
Michael McCormick, Mayor
ATTEST:
Maria E. Ayala, City Clerk
APPROVED AS TO FORM:
hereby executed as of
RPLANET EARTH LOS ANGELES, LLC,
a Delaware limited liability company
Name:
Title:
By:_
Name:
Title:
/-00001/10-28-15/jmd/jmd -11- WEST1263631313.4
Hema Patel, City Attorney
/-00001/10-28-15/jmd/jmd -12- WEST\263631313.4
EXHIBIT A
ADDED FACILITIES PLANS AND SPECIFICATIONS
Phase 1: Estimated Cost $800,000
Phase 1 consists of 5 pad -mounted transformers, 3 PME 16 KV pad -mounted switches, 2 16 KV
primary metering cabinets, 16 KV primary cables on the Customer property, low voltage conductors from
the transformers to the Customer furnished electrical panels, and low voltage metering.
Phase 2: Estimated Cost $450,000
Phase 2 consists of 5 pad -mounted transformers, 3 PME 16 KV pad -mounted switches, 16 KV
primary cables on the Customer property, low voltage conductors from the transformers to the Customer
furnished electrical panels, and low voltage metering.
/-00001 / 10-28-15/jmd/jjmd -1- W ESD263631313.4
EXHIBIT A-1
LINE EXTENSION PLANS AND SPECIFICATIONS
The line extension consists of extending a new 16 KV circuit from City's existing City's Substation
through City's existing conduit bank infrastructure along Fruitland Avenue and six (6) existing
manholes/vaults to the Customer's property line. The City shall own and maintain the new 16 KV circuit
similar to other existing 16 KV circuits it owns and the Customer shall neither have exclusive rights to the
line extension nor shall it pay for any Added Facilities Monthly Charges associated with the City cost for
replacement, operations and maintenance of the line extension.
The estimated Services cost associated with the line extension is $350,000.
/-00001/10-28-I5/jmd/jmd -2- WES R263631313.4
EXHIBIT B
ADDED FACILITIES MONTHLY CHARGE
Customer shall pay a monthly added facilities charge at the rate set below. The rate is based on a
percentage of the Added Facilities Installation Cost.
Item
Cost estimates
Comments
Added Facilities Monthly Rate
0.33%
See FN 1
Added Facilities Installation
$800,000
See FN 2
Costs — Phase 1
Added Facilities Installation
$450,000
See FN 2
Costs — Phase 2
Added Facilities Monthly
$2,640
Charge - Phase 1
Added Facilities Monthly
$4,125
Charge - Phase 1 and 2
combined
Line Extension
N/A
See FN 3
Footnotes:
(1) Pursuant to Rule 2.H
(2) Pursuant to Exhibit A to this Agreement
(3) Line Extension Costs are to be paid by the Customer upon City's request for work
performed from the Reserve Funds. The Line Extension, as identified in Exhibit A-1, is
not included in the Added Facilities Installation Cost and Added Facilities Monthly
Charge.
/-00001 /10-28-15/jmd/jmd - l - WEST1263631313.4
EXHIBIT C
TERMINATION FEE
If this Agreement is terminated for any reason, other than an Event of Default by City, Customer
shall pay City in full the Termination Fee calculated as set forth below to the extent such
payment has not previously been made to the City from the Reserve Amount:
• Any Added Facilities Installation Cost and Line Extension Costs;
• Plus: Costs of upgrades made at Customer's request for
Customer's convenience (if any);
• Plus: Demolition and removal costs (if applicable); and
• Plus: Other documented costs actually incurred by City (such as
insurance, taxes, cancellation fees, etc., if any).
/-00001/10-28-15/jmd/jmd -2- WES7\263631313.4
EXHIBIT D
PROJECT SCHEDULE — Phase 1 Added Facilities
City Council Approval: December 15, 2015
Design and Engineering Completion: March 31, 2016
Procurement Completion Date: June 30, 2016
Construction Completion date: December 15, 2016
/-00001/10-28-15/jmd/jmd -3- WES n263631313.4
EXHIBIT A-2
FORM OF ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT
WESTA261971756.8
[To be executed concurrently with the Added Facilities Agreement at Closing under Purchase
Agmt]
AGREEMENT FOR ECONOMIC DEVELOPMENT INCENTIVE ON ELECTRIC SERVICE
This Agreement for Economic Development Incentive on Electric Service (this "Agreement") is between
RPLANET EARTH LOS ANGELES, LLC, a Delaware limited liability company ("Applicant"), and the
City of Vernon, a California municipal corporation.
RECITALS:
A. The Economic Development rate was established and is made available at the City of
Vernon's sole discretion. The Economic Development rate is set forth in the City of Vernon's rate
Schedule ED.
B. Applicant proposes to have constructed for it to operate as a new facility at 3200
Fruitland, in the City of Vernon ("New Facility") and desires that the City of Vernon provide electric
service to such facility.
C. In consideration of Applicant's commitment to construct and operate the New Facility in
the City of Vernon at the contracted demand, the City of Vernon has agreed to modification of the
Economic Development rate as set forth in Schedule ED.
AGREEMENT: Applicant and the City of Vernon agree to the following terms and conditions:
1. QUALIFICATION CRITERIA.
Applicant is or will be a customer, eligible for receiving service under Schedule TOU-G, TOU-V or its
successor rate schedule.
The electric load subject to this agreement is a maximum billing demand of at least 5,750 kW of net new
load to the City of Vernon. The minimum 5,750 kW of net new load must be maintained for at least three
consecutive months during the initial 12 months of this agreement. Only new load that will be regularly
served by the City of Vernon will be eligible for this incentive.
2. BILL INCENTIVE.
Electric service to Applicant's premises shall be delivered under Applicant's otherwise applicable tariff
(OAT), which is TOU-V. A ten year rate incentive up to a twenty (20) percent reduction will be applied
to the customer's OAT (excluding taxes). This reduction shall be calculated on the rate components of the
customer's bill that correlate to service that the City of Vernon provides the customer. If needed the City
of Vernon may reduce the incentive percentage to ensure that revenues exceed the Floor Price. For
purposes hereof, the Floor Price shall mean the Floor Price set forth in Schedule ED except that for
purposes hereof the "marginal generation cost" component of the Floor Price for any fiscal year shall not
exceed the mean Day -Ahead Locational Marginal Price (LMP) for Vernon Metered Subsystem load
aggregation point (on -peak or off-peak, as applicable) as published by the California Independent System
W EST\264304428.2
Operator (CAISO).This incentive under this schedule will be limited by the Floor Price, as defined in
Schedule ED and modified as set forth above. In calculating the Floor Price, the City of Vernon will
make use of its best estimate of the marginal cost to serve the customer. The revenues from each
participant will be reviewed annually and/or at the end of the agreement to ensure that they equal or
exceed the Floor price for each year of the agreement, up to the OAT revenue that the customer would
have paid if it had not received the incentive.
Applicant's rate under this schedule will be subject to an annual review, with potential additional lump -
sum charges due to the City of Vernon or credits due to Applicant. The charges shall ensure that the rate
does not fall below the Floor Price each year. Credits, if available after the annual review, will be
provided if the customer's incentive rate had been previously reduced from the maximum incentive above
as a result of the application of the Floor Price limitation.
3. INCENTIVE CALCULATION.
Terms and conditions necessary for the incentive calculation are defined and agreed to as follows:
Billing determinants used for calculating the first year incentives will be the City of Vernon's best
estimate of expected usages and demand for customer expansion and attraction cases. For expansion
cases, the previous 12- months of historical metered data, if available, will be used to determine current
usage levels, and the incentive will be calculated only on that portion of demand and usage that is added.
During the annual and contract term review, the City of Vernon will compare the revenues received to the
Floor Price to ensure that the revenues received remain at least equal to the Floor Price throughout the
duration of the contract.
The City of Vernon reserves the right to reduce the contracted demands stated by the Applicant below if it
is determined that the Applicant's actual load at full operation of the facility after the Commencement
Date of this Agreement is more than 25% less than the contracted maximum demands stated below.
[Please mark the appropriate space below, indicating whether this is an agreement for the Applicant's
entire load or only a portion of the Applicant's load.]
a. _X New customer locating in the City of Vernon.
Expansion of the existing customer's load.
C. The contracted demand of the new or expanded load is estimated to be on average,
_5,750_kW initially and 11,500 kW at full facility operation.
The excluded Demands, if applicable, are determined by averaging the Applicants four highest
measured demands during each seasonal period during the 12-mont period preceding the execution date
of this agreement, if available. If Applicant separately meters the Reserved Demand, Applicants
Excluded Demand will be zero (0) kW for each season. The City of Vernon and the Applicant agree that
the excluded demand is:
July to September: 0 kW
May, June, October: 0 kW
W EST\264304428.2
November to April: 0 kW
The Incentive Ratio for each month is defined as the difference between the Applicant's maximum
demand for that month and the excluded Demand divided by that same month's maximum demand. The
Incentive Ratio will be a fraction from zero (0) to one (1). The Economic Development Rate discount is
determined as the product of the rate incentive, the Incentive Ratio and the subtotal of charges on the rate
components of the Applicant's bill that correlate to service that the City of Vernon provides to Applicant.
4. COMMENCEMENT DATE.
The incentive shall commence on the Applicants regularly scheduled meter read day in the month
following the date that installation of Phase 1 of the Added Facilities (as defined in that certain Added
Facilities Agreement of even date herewith) is completed by City (the "Commencement Date").
METERING.
Applicant agrees to be responsible for all costs associated with providing separate electric metering if the
City of Vernon, at its sole discretion, deems such metering a necessary condition to implement this rate.
If Applicant is deemed to require separately metered reserved demand, Applicant must have metering in
place before the incentive rate will apply. Applicant's ability to have required metering in place shall not
delay the commencement date provided in Section 4 by which the Applicant would have otherwise
received the incentive.
6. TERM OF AGREEMENT.
This agreement shall take effect on the Effective Date and remain in effect for a term of ten years
following the Commencement Date, subject to Section 2.
7. TERMINATION AGREEMENT
Applicant may terminate this agreement upon 30 days written notice. The City of Vernon may also
terminate this agreement upon 30 days written notice in the event Applicant no longer meets the
qualifications described elsewhere in the Agreement and in Rate Schedule ED. Notwithstanding these
rights of termination, the Applicant shall be subject to Liquidated Damages as provided in Section 9 of
this agreement.
8. "BUT FOR" TEST
Applicant attests that "but for" the terms of this agreement, either on its own or in combination with a
package of incentives made available to the Applicant from other sources, the Applicant would not have
located, or increased its operations within the City of Vernon. Applicant shall sign the attached affidavit
to that effect.
9. LIQUIDATED DAMAGES
If this agreement is terminated due to Applicant's misrepresentation or fraud, Applicant shall be liable for
liquidated damages that equal 200% of the cumulative difference between (i) bills calculated under the
Schedule ED rate to the date of termination and (ii) bills that would have been calculated under the OAT.
WEST\264304428.2
10. ASSIGNMENT.
Applicant may assign this agreement only if the City of Vernon consents in writing (not to be
unreasonably withheld, conditioned or delayed) and the party to whom the agreement is assigned agrees
in writing to be bound by this agreement in all respects.
WEST\264304428.2
IN WITNESS THEREOF, the Parties have executed this Agreement in multiple originals of equal dignity
by their respective duly authorized representatives.
Executed this day of , 2015 (the "Effective Date")
rPlanet Earth The City of Vernon
(customer)
(signature) (signature)
(Print Name) (Print Name)
(Title)
W EST\264304428.2
(Title)
AFFADAVIT FOR ECONOMIC DEVELOPMENT RATE
By signing this affidavit, an Applicant who locates or adds load in the City of Vernon hereby certifies and
declares under penalty of perjury under the laws of the State of California that the statements in the
following paragraphs are true and correct.
1. But for the receipt of the discounted economic development rate and the terms of the Agreement,
either on its own or in combination with an economic development incentive package, the Applicant's
load would not have been located, or added within the City of Vernon.
2. The load to which the Agreement applies represents kilowatt-hours (kWh) and kilowatts (kW)
that either (i) does not already exist in the City of Vernon , or (ii) the Applicant considered expanding to a
location outside of the City of Vernon.
3. Applicant has discussed with the City of Vernon the cost-effective conservation and load
management measures the applicant may take to reduce their electric bills and the load they place on the
City of Vernon's utility system.
4. On an annual basis, the cost of electricity for a new or expanding customer is at least five (5)
percent of its actual operating costs, less the cost of raw materials.
Executed this day of 20
(Applicant)
BY:
(Signature)
(Print Name)
TITLE:
W EST\264304428.2
DRAFT FORM OF LAND USE COVENANT
WEST\261971756.8
RECORDING REQUESTED BY:
Pechiney Cast Plate Inc.
4700 Daybreak Parkway
South Jordan, Utah 84095
WHEN RECORDED MAIL TO:
Department of Toxic Substances Control
Notes:
1) Changes to definition of
"Owner" may be needed if
executed by the City of
Vernon after Closing.
SPACE ABOVE THIS LINE RESERVED FOR RECORDER'S USE
LAND USE COVENANT AND AGREEMENT
ENVIRONMENTAL RESTRICTIONS
County of Los Angeles, Assessor's Parcel Numbers 6310-008-020 and 6310-008-021
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
("Original Property") and depicted on Figures 1 and 2 of Exhibit B, (the "Property") and the
California Department of Toxic Substances Control (the "Department," which includes its
successor agencies, if any). This Covenant covers the northern portion of the Original Property
situated at 3200 Fruitland Avenue (Exhibit B). 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 party beneficiary, although the
EPA is not a party to this Agreement.
-1-
089367.000006 603354862.7
ARTICLE I
STATEMENT OF FACTS
1.1 Property Location. The Property consists of two legal parcels, totaling
approximately 633,191 square feet as more particularly described in Exhibit A. The Property
was formerly (prior to a lot line adjustment) part of the Original Property that consisted 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 Original 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 ("TCE"), tetrachloroethene ("PCE"), 1,2-
dichloroethane (1,2-DCA"), and chloroform 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 Original Property under the oversight of
the Department. The RAP (AMEC, June 2012) 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. Pursuant to Code of Federal Regulations, Title 40
("40CFR"), Subchapter R, Toxic Substances Control Act ("TSCA"), 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 an
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
-2-
089367.000006 603354862.7
the Original Property and Stoddard solvent -impacted soil in the southern portion of the Original
Property. In these areas, VOCs and Stoddard solvent (and associated VOCs) remain in soil
above the RAP remediation goals. Currently, operation and maintenance ("O&M") activities for
the SVE systems and groundwater monitoring are ongoing. The location of the SVE system
and groundwater monitoring wells on the Property are also shown on Figure 1 of Exhibit C. The
O&M of the SVE system and groundwater 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 Based on groundwater monitoring well data, VOCs have been detected in
groundwater beneath the Property. These VOCs include TCE, PCE, 1,1-dichloroethene (1,1-
DCE"), chloroform, 1,2-DCA and to a lesser extent other VOCs at concentrations ranging from
0.5 micrograms/liter (Ng/L) up to 5,700 pg/L.
1.2.5 Beginning in August 2013, PCB -impacted concrete, and PCB, metals,
and total petroleum hydrocarbon ("TPH") impacted soils were excavated and removed from the
Property as described in the RAP. The areas associated with the Property where soil was
mitigated under the RAP are shown on Figure 2 of Exhibit C.
1.2.6 During the implementation of the RAP and the Below Grade Demolition
Plan (AMEC, August 2012), concrete slabs, pavement, footings, foundations, structures (in the
upper 10 feet relative to native grade), and underground utilities (upper 3 feet) were removed as
part of the below grade demolition work. Locations where structures were left in place at a
depth of 10 feet relative to native grade are shown on Figure 1 of Exhibit D and survey
information is provided on Figures 2 through 15 of Exhibit D. Concrete associated with one
structure (referred to as #FDC4) contains PCBs at concentrations above 1 milligram/kilogram
("mg/kg"). This structure is covered with a physical underground warning barrier ("UWB") that
consists of a 6-inch concrete layer covered with an orange liner. The surface elevation of the
UWB is approximately 171 feet mean sea level ("MSL") (see Figure 6 of Exhibit D). The
remaining concrete of this structure contains PCBs at concentrations up to 4600 mg/kg. Soil
and pea gravel within the structure contains PCBs at concentrations up to 12 mg/kg.
1.2.7 For total PCBs in soil, the site -specific remediation goals were
established for PCBs at a certain depth intervals; ground surface to 5 feet below native grade
(above178 feet mean sea level [MSL]) at 3.5 mg/kg, 5 feet to 15 feet below native grade (178 to
above 168 feet MSL) at 23 mg/kg, and below 15 feet below native grade (below or equal to 168
feet MSL) above 23 mg/kg. For Aroclor 1254, the remediation goal for ground surface to 15 feet
below native grade was 2.0 mg/kg. Because these remediation goals are depth -specific relative
to native grade, earthwork must be conducted in accordance with a Soil Management Plan
(refer to Article II, 4.2). A map depicting the native grade elevations is shown on Figure 16 of
Exhibit D.
1.2.8 Soil removals were conducted for PCBs using the depth interval
remediation goals from ground surface to a depth of 15 feet (native grade). Exposure point
concentrations based on a 95% upper confidence limit (95% UCL) of the arithmetic mean of the
-3-
089367.000006 603354862.7
PCBs concentrations was used to estimate a reasonable maximum exposure (RME) scenario to
demonstrate that the RAP soil removals achieved the PCB remedial goals. EPA ProUCL
software, version 5.0.00 (EPA, 2013) was used to calculate the UCLs. Based on the ProUCL
results, for the outdoor commercial/industrial worker (exposure to soil to a depth of 5 feet) and
construction worker (exposure to soil to a depth of 15 feet), the estimated cancer risks and
noncancer hazards from direct contact soil exposure to PCBs were below the de minimus target
levels of 1 x10-6 and 1.0, respectively.
1.2.9 Soil remaining in place at depths greater than 15 feet below native grade
with PCB concentrations above the approved remediation goal (23 mg/kg) are covered with a
physical UWB. The locations where soil is covered with the UWB are shown on Figure 1 of
Exhibit D, along with the in situ maximum total PCB concentrations recorded during the
implementation of the RAP.
1.2.10 Concrete containing PCBs at concentration greater than 1 mg/kg was
removed and shipped off the Property for disposal. Crushed concrete that was used on the
Property as backfill and surface cover may contain PCBs at concentrations less than or equal to
1 mg/kg. The area where crushed concrete was placed at the Property is shown on Figure 17
of Exhibit D. These materials shall be maintained onsite.
1.2.11 As detailed in the Phase Area Completion Reports, which were required
under the Consent Order for the RAP soil removals, approved by the Department and the EPA,
soils within portions of the Property, to a depth of 15 feet or more below native grade, contain
hazardous substances, which include PCBs, petroleum hydrocarbons (C6 to C44), VOCs, and
metals. Engineering controls, such as a vapor barrier, may be required for redevelopment in
areas where VOCs remain in soil. The need for Engineering controls shall be evaluated as part
of the redevelopment plans for the Property. The concentrations of the substances remaining in
soil are summarized on Tables 1 through 4 of Exhibit E. Sample locations are shown of Figures
1 through 6 of Exhibit E. Hazardous Substances remain at the Property above concentrations
acceptable for unrestricted land use.
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
-4-
089367.000006 603354862.7
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.
2.4 "Improvements" includes, but is not limited to buildings, structures, roads,
driveways, improved parking areas, pipelines or other utilities.
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. Bindinq 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 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.
-5-
089367.000006 603354862.7
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
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 Administering 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.
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.
(e) Any use which is not for industrial or commercial purposes.
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
implementation a soil management plan pre -approved by the Department and the EPA in
writing. The approved Soil Management Plan for pre -construction grading and redevelopment
earth work is included in Exhibit F.
For PCBs, soil within the upper 5 feet relative to native grade (above 178 feet MSL) may contain
PCBs at concentrations below 3.5 mg/kg, and for this depth interval soil may be disturbed
during site grading with no further sampling or onsite management, including those areas
designated as landscaped areas. Areas where disturbance occurs shall be documented and
surveyed.
-6-
089367.000006 603354862.7
Soils containing PCBs at depth between 5 feet and above 15 feet (relative to native grade;
interval of 178 feet MSL to above 168 feet MSL) that is disturbed during site grading or during
construction of footing, foundations, or utility trenches may be consolidated and placed under
the footprint of a building slab or concrete paved area (referred to as a "cap" with a minimum
concrete thickness of 6-inches). In doing so, the soil placed under the cap shall be designated
as containing total PCBs at concentrations of 23 mg/kg (the remediation goal for the 5 to 15 foot
depth interval relative to native grade). The PCB -impacted soil consolidated under the cap shall
be covered with a warning membrane, such as the orange fabric used for the UWBs, or other
similar material. If the soil placed under the cap is further disturbed during construction
activities (trenching, etc.), additional soil testing for total PCBs shall be conducted to verify that
that the PCB concentrations in soil do not exceed 23 mg/kg.
In addition, soil consolidated under the cap shall not include soil from a depth of greater than 15
feet relative to native grade. Soil at depths greater than 15 feet relative to native grade shall be
designated as containing total PCBs at a concentration greater than or equal to 50 mg/kg.
The cap, inspections of the cap, record keeping, and future repairs to the cap shall meet the
requirements of 40 CFR 761.61(a)7. A restrictive covenant recording for the cap and underlying
soil shall meet 40 CFR 761.61(a)8, and will not require a low occupancy area designation
specified in 40 CFR 761.61(a)(8)(i)(A)(1) or the associated low occupancy certification specified
in 40 CFR 761.61(a)(8)(i)(B). The installed overlying warning membrane and areas where
these soils are consolidated shall be documented and surveyed, and the survey information
shall be added to this Covenant and recorded.
Soils containing other contaminants, such as TPH (and/or Stoddard solvent), VOCs or metals,
shall be maintained in the area where the soil is disturbed and not relocated to another area or
other portion of the Property that is not impacted.
(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 and the Soil Management Plan (Exhibit F).
(c) No activities which will disturb the physical UWBs shall be permitted without a
soil management plan pre -approved by the Department and the EPA in writing. If the physical
UWBs are disturbed, then soil and concrete under these barriers shall be managed for disposal
based on in situ PCB concentrations recorded during the implementation of the RAP (Figure 1
of Exhibit D. Management and disposal of PCB -impacted soil and concrete shall be conducted
in accordance with 40 CFR, Section 761.65. Soil containing PCBs shall be stored on site no
longer than 30 days.
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
-7-
089367.000006 603354862.7
PCBs covered with an UWB) are shown on Figure 1 of Exhibit D. Disturbance of the UWBs
shall be addressed as noted above.
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.
(e) 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 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 Pechiney, 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
-8-
089367.000006 603354862.7
person's property, except to the extent caused by the gross negligence or willful misconduct of
Owner.
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 person 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
-9-
089367.000006 603354862.7
Department or the EPA in the exercise of its discretion, this Covenant shall continue in effect in
perpetuity.
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, if personally
delivered to the person being served or to an office 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.
-10-
089367.000006 603354862.7
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.
7.7 Governing 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.
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 —
Figure 1 - Property Location
Figure 2 - Assessor Parcel Map
Exhibit C —
Figure 1 - Locations of Groundwater Monitoring and Soil Vapor Extraction Wells
Figure 2 — Generalized Areas of Residual Soil Impacts
Exhibit D —
Figure 1 - Locations of Underground Warning Barriers (UWB) and Deeper Structures
Remaining in Place Below 10/15 Feet
Figures 2 to 15 — Survey Record Drawings for UWBs and Deeper Structures
-11-
089367.000006 603354862.7
Figure 16 - Native Grade Reference Elevations
Figure 17 — Areas of Crushed Concrete
Exhibit E — Summary of Implementation Report Information
Figure 1 — Sample Locations — PCBs in Soil 0 to 5 feet (native grade)
Figure 2 — Sample Locations — PCBs in Soil 5 to 15 feet (native grade)
Figure 3 — Sample Locations — PCBs in Soil Greater than 15 feet (native grade)
Figure 4 — Sample Locations — Total Petroleum Hydrocarbons (TPH)
Figure 5 — Sample Locations — Volatile Organic Compounds (VOCs)
Figure 6 — Sample Locations — Metals (As, Pb, Cu and Cr)
Table 1 — Summary of Remaining PCBs Concentrations in Soil and Sample Location
Information
Table 2 — Summary of TPH Concentrations in Soil and Sample Location Information
Table 3 — Summary of VOCs Concentrations in Soil and Sample Location Information
Table 4 — Summary of Metals (As, Pb, Cu and Cr) Concentrations in Soil and Sample Location
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.
Soil Management Plan
US EPA Conditional Approval Letters
-12-
089367.000006 603354862.7
A notary public of other office 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
County of
On , before me,
ACKNOWLEDGMENT
(insert name and title of officer)
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 PURJERY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
State of California
County of
On , before me,
(insert name and title of officer)
(Seal)
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 PURJERY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
-13-
089367.000006 603354862.7
(Seal)
EXHIBIT C
DRAFT FORM OF SOIL MANAGEMENT PLAN
WEST\261971756.8
TABLE OF CONTENTS
Page
1.0
INTRODUCTION............................................................................................................1
2.0
SITE BACKGROUND AND REMEDIATION GOALS.....................................................1
3.0
REDEVELOPMENT AND CONSTRUCTION ACTIVITIES.............................................4
4.0
CHEMICALS OF CONCERN..........................................................................................4
5.0
SOIL MANAGEMENT.....................................................................................................5
5.1 SOIL AND CONCRETE CONTAINING PCBS AND OTHER COCS.................................
5
5.2 MONITORING REQUIREMENTS...............................................................................7
5.2.1 SCAQMD Rule 1166 Requirements........................................................7
5.2.2 Fugitive Dust...........................................................................................
7
5.2.3 Storm Water Controls..............................................................................
8
5.3 SOIL TESTING AND EQUIPMENT DECONTAMINATION...............................................
8
5.4 STOCKPILE MANAGEMENT AND TESTING................................................................
9
5.5 SITE ACCESS......................................................................................................
11
5.6 IMPORT FILL SOIL REQUIREMENTS......................................................................
11
5.7 AGENCY NOTIFICATIONS.....................................................................................
11
6.0
HEALTH & SAFETY REQUIREMENTS.......................................................................11
7.0
LIMITATIONS...............................................................................................................12
8.0
REFERENCES.............................................................................................................13
FIGURES
Figure 1 Site Location Map
Figure 2 North and South Properties with Reference Elevations for Native Grade
Figure 3 Existing Groundwater Monitoring and Soil Vapor Extraction Wells
Figure 4 Locations of Underground Warning Barriers (UWBs) and Structures
Figure 5 Post -Below Grade Demolition Site Grade and Strom Water Controls
Figure 6 Areas with Crushed Concrete
Figure 7 Areas of Residual Soil Impacts
TABLE
Table 1 Site -Specific Remediation Goals
APPENDIX
Appendix A Survey Information for Underground Warning Barriers (UWBs) and Deeper
Structures Left in Place
Amec Foster Wheeler Environment & Infrastructure, Inc.
K \10627 003 0\Soil Mot Plan\Soil Management Plan Pechinev r2.docx _ I
SOIL MANAGEMENT PLAN (SMP)
Former Pechiney Cast Plate, Inc. Facility
Vernon, California
1.0 INTRODUCTION
Amec Foster Wheeler Environment & Infrastructure, Inc. (Amec Foster Wheeler; formerly
AMEC), has prepared this soil management plan (SMP) on behalf of Pechiney Cast Plate, Inc.
(Pechiney), for the former Pechiney property located at 3200 Fruitland Avenue, in Vernon,
California (the site; Figure 1). The former Pechiney property has been subdivided into two -
properties known as the North Property (Assessor Parcel Numbers [APNs] 6310-008-020 and
6310-008-021) and the South Property (APNs 6310-008-010, 6310-008-011, and 6310-008-
019) as shown on Figure 2.
The North Property encompasses approximately 633,191 square feet of real estate and the
South Property encompasses approximately 552,715 square feet of real estate. The future
uses of the North Property and the South Property will consist of commercial/industrial land
use.
(i:efereRGe pending). -The future uses may include warehouse distribution center and industrial
manufacturing.
The SMP is intended to be a plan that describes the protocols for handling and managing soil,
including soil containing residual concentrations of chemicals of concern (COCs) following site
remediation that may be encountered during future site grading and construction conducted
during redevelopment of the respective properties. Depending on the timing of the planned
redevelopments, this SMP may need to be revised to reflect the current state of development
of the property, current state and federal requirements, and current property conditions.
2.0 SITE BACKGROUND AND REMEDIATION GOALS
Remedial investigations conducted at the site identified volatile organic compounds (VOCs),
petroleum hydrocarbons (as Stoddard solvent), polychlorinated biphenyls (PCBs), and metals
(primarily arsenic) in soil; VOCs and Stoddard solvent in soil vapor; and PCBs in concrete
building floor slabs at concentrations of potential concern. The investigations also identified
VOCs, including trichloroethene and tetrachloroethene, in groundwater beneath the site.
Groundwater within the first water -bearing unit is present at a depth of approximately 140 to
150 feet. Remedial investigation and screening level human health risk assessment (HHRA)
findings for the site are summarized in the Feasibility Study (AMEC, May 2012). Based on the
HHRA, site -specific remediation goals were established for the COCs in soil vapor, and soil at
Amec Foster Wheeler Environment & Infrastructure, Inc.
K \10627 003 0\Soil Mat Plan\Soil Management Plan Pechinev r2 docx _ 1
the site assuming that the future land use would be for commercial/industrial purposes. The
site -specific soil remediation goals are summarized in Table 1.
Pursuant to a July 2010 Imminent and Substantial Endangerment Determination and Consent
Order, a Remedial Action Plan (as amended, the "RAP") was prepared and implemented to
mitigate concrete, soil, and groundwater impacts at the site under the oversight of the
Department of Toxic Substances Control (DTSC). Pursuant to the Code of Federal
Regulations (CFR), Title 40, Subchapter R, Toxic Substances Control Act (TSCA), the US
Environmental Protection Agency (US EPA) has oversight for PCB -impacted soil and
concrete. Mitigation of the PCB -impacted concrete and soil was approved by the US EPA.
Based on site -specific remediation goals developed for COCs present in concrete and soil at
the site, these impacted media were mitigated to meet the site -specific remediation goals
presented in the RAP. Remediation of VOC-impacted soil on the Northern Property and
Stoddard solvent -impacted soil on the Southern Property is being mitigated by soil vapor
extraction (SVE) and SVE/bioventing, respectively. Groundwater monitoring is also ongoing at
the site. The well fields for the SVE and SVE/bioventing areas and existing groundwater
monitoring wells are shown on Figure 3.
As detailed in the Completion Reports (AMEC, 2014a, b, c, and d), soil within portions of the
site, to a depth of 15 feet or more below the native grade, contain hazardous substances,
which include the COCs listed in Section 4.0 below. Native grade was relative to the elevation
of the asphalt surface that runs along the eastern side of the site. Native grade elevations
used are shown on Figure 2. Soil removals completed at the site during the implementation of
the RAP are summarized below by Phase area, and residual concentrations of COCs remain
in place below the remediation goals.
• Phase I Area - soil removals were conducted for PCBs and for isolated occurrences
of total petroleum hydrocarbons (TPH) in soil (based on field conditions, proximity
to below grade structures that were removed, or due to the presence of PCBs). The
approximate vertical extent of the soil removals range from an elevation of 185 to
167 feet mean sea level (MSL).
• Phase II - soil removals were conducted for PCBs and metals and for isolated
occurrences of TPH in soil. The approximate vertical extent of the soil removals
range from an elevation of 186 to 159 feet mean sea level (MSL).
Phase III, IV, and VI Areas - soil removals were conducted for PCBs and metals
(arsenic) and for isolated occurrences of TPH in soil (based on field conditions,
proximity to below grade structures that were removed, or due to the presence of
PCBs). Soil impacted with TPH and Stoddard solvent was not removed in the area
where SVE/bioventing is being used to address TPH- (as Stoddard solvent) and
associated VOC-impacted soils; and some soil containing TPH was removed in the
Amec Foster Wheeler Environment & Infrastructure, Inc.
K \10627 003 0\Soil Mat Plan\Soil Management Plan Pechinev r2 docx _ 2
Phase IV Area. The approximate vertical extent of the soil removals range from an
elevation of 185 to 171 feet mean sea level (MSL).
• Phase V - soil removals were conducted for metals, PCBs and TPH. The
approximate vertical extent of the soil removals range from an elevation of 176 to
174 feet mean sea level (MSL).
In addition, soil remains in place at depths greater than 15 feet below native grade with PCB
concentrations above 23 milligrams per kilogram (mg/kg). As approved by US EPA, these
areas are covered with a physical underground warning barrier (UWB) that consists of
concrete slurry covered with an orange fabric. The locations of these
baFFiere-UWBs are shown on Figure 4 alona with the average top elevations of the UWBs.
The maximum total PCB concentrations detected in soil concrete and/or fill material that
remains below the UWBs are shown on Fiaure 4 and summarized below. Survey information
for the UWBs is included in Appendix A.
Structure Identification
Total Maximum PCB Concentration below an UWB
milligrams/kilogram (mg/kg)
Concrete
Soil
Pea Grave/Fill
Concrete Cover in Area 4AAB
Not Applicable (NA)
2000
NA
FDC#4 / Area 4B
4600
NA
12
North Concrete Cover
NA
530
NA
South Concrete Cover
NA
1775
NA
Concrete Cover in Area C
NA
73.6
NA
The Completion Reports (AMEC, 2014a, b, c, and d), also provided documentation of the
below demolition work conducted at the site. The below grade demolition work included the
removal of footings, foundations, structures (in the upper 10 feet), and underground utilities
(within the upper 3 feet)_, Locations were structures were left in place at a depth of 10 feet
relative to native grade are shown on Figure 4 along with the average elevation of the top of
the concrete cover placed over the structure. The maximum total PCB concentrations
detected in concrete and/or fill material of the structure that remains below the concrete cover
is shown on Figure 4 and summarized on the next page. Survey information for the deeper
structures is included in Appendix A.
Amec Foster Wheeler Environment & Infrastructure, Inc.
K-\10627 003 0\Soil Mat Plan\Soil Management Plan Pechinev r2 docx _ 3
Structure Identification
Total Maximum PCB Concentration Associated with a
Structure Left in Place
milligrams/kilogram (mg/kq)
Concrete
Soil
Pea Grave/Fill
FDC#1
0.069
Not Applicable (NA)
NA
Structure 142 - Swindell Pits
Not Detected
NA
Not Detected
Structure 827 - Swindell Pits
Not Detected
NA
Not Detected
Structure 1A (Northeast Areal
3.6
NA
NA
Structure 1 C (Northeast Areal
2.0
NA
NA
3.0 ANTIC! P TED REDEVELOPMENT AND CONSTRUCTION ACTIVITIES
The site is currently graded for storm water controls, fenced, and vacant. The site grade and
post -demolition storm water controls in place at the site are shown on Figure 5. As part of the
below grade demolition work, concrete containing PCBs at concentrations less than or equal
to 1 mg/kg (to non -detect levels) was crushed onsite and used as backfill and surface cover in
portions of the site. The areas where crushed concrete was used in this manner is shown on
Figure 6.
Redevelopment will likely include a warehouse
distribution center (Southern Property) and industrial manufacturing facility (North Property).
In either case, redevelopment may require over -excavation and recompaction of site soils
(including native soil and imported soils); construction excavations for footings, foundations
and utility corridors; and/or import of fill soils for structural or other purposes. If imported fill is
needed, the import fill requirements shall meet those described in Section 5.5. If impacted
soils (based on visual staining odors or other observations) are encountered during earthwork
(grading or excavations), the soil must be managed for potential off -site disposal or stockpiled
for potential onsite re -use as described in Section 5.3.
4.0 CHEMICALS OF CONCERN
This section described the COCs that may be present at the site, and impacted soil may be
encountered during site grading, construction, and redevelopment work. The COCs that may
be encountered in soil include:
• Total petroleum hydrocarbons (TPH and Stoddard solvent);
Amec Foster Wheeler Environment & Infrastructure, Inc.
K \10627 003 0\Soil Mat Plan\Soil Management Plan Pechinev r2 docx o3.gk8ej1 Mgt Rlanlgeil Manapment Plan_Peshiney4
PCBs;
VOCs, such as chloroform, PCE and TCE in the North Property area, and
1,2,4-trimethylbenzene and 1,3,5-trimethylbenzene in the South Property area; and
Metals (primarily arsenic).
The areas of the site where these COCs remain in place in soil after implementation of the
RAP are shown on Figure 7. Soil may be encountered with COCs above the remediation
goals in areas where SVE or SVE/bioventing are in progress and these areas are also shown
on Figure 7 The presence of these COCs in soil at the site shall be considered during site
grading and construction excavation. In consideration of the depth to groundwater (140 to 145
feet below grade), groundwater management during construction is not anticipated; but will be
decided on a project -specific basis.
5.0 SOIL MANAGEMENT
This section provides procedures for monitoring, soil testing, equipment decontamination,
managing and testing of soil stockpiles, import fill soil requirements, a44d-site access, and
agency notifications, all of which shall need to be implemented in the event earthwork is being
conducted in areas with residual COCs remaining at concentrations below or above the
remediation goals (Table 1), or if impacted soil (based on visual staining, odors, or other
observations) is encountered during redevelopment.
5.1 SOIL AND CONCRETE CONTAINING PCBS AND OTHER COCS
For the site, where PCBs were a COC, remediation goals were established for PCBs at a
certain depth intervals, ground surface to 5 feet below native grade (above178 feet mean sea
level [MSL]), 5 feet to 15 feet below native grade (178 to above 168 feet MSL), and below 15
feet below native grade (below or equal to 168 feet MSL). (Note - The native grade surface
elevation of 178 feet MSL in the Phase V area is lower than the remainder of the site, and
depth intervals for this Phase area began at native grade). Refer to Figure 2 for the native
grade surface elevations used for the PCB depth intervals in each phase area. Because these
remediation goals are depth -specific relative to native grade, earthwork must be conducted in
a manner in which soil from each respective layer is not mixed with a layer that contains soil
mitigated to a less -restrictive remediation goal. Restated, deeper soil intervals shall not be
mixed or co -mingled with a shallower soil interval and placed in the shallower interval
("segregation approach").
Soil within the upper 5 feet relative to native grade (above 178 feet MSL) may contain PCBs at
concentrations below 3.5 mg/kg, and for this depth interval soil may be disturbed during site
Amec Foster Wheeler Environment & Infrastructure, Inc.
K \10627 003 0\Soil Mat Plan\Soil Management Plan Pechinev r2 docx _ 5
grading with no further sampling or onsite management, including those areas designated as
landscaped areas. Areas where disturbance occurs shall be documented and surveyed.
As an alternative to the segregation approach, soil between 5 feet and above 15 feet (relative
to native grade; interval of 178 feet MSL to above 168 feet MSL) that is disturbed during site
grading or during construction of footing, foundations, or utility trenches may be consolidated
and placed under the footprint of a building slab or concrete paved area (referred to as a "cap"
with a minimum concrete thickness of 6-inches). In doing so, these soils under the cap shall
be designated as containing total PCBs at a concentration greateF thaR of 23 mg/kg
remediation Goal for the 5 to 15 foot depth interval relative to native grade). The PCB -
impacted soil consolidated under the cap shall be covered with a warning membrane, such as
the orange fabric used for the UWBs or other similar material. If the soil placed under the cap
is further disturbed during construction activities (trenching etc.) additional soil testing for total
PCBs shall be conducted to verify that that the PCB concentrations in soil do not exceed 23
mg/ka • .
In addition soil consolidated under the cap shall not include soil from a depth of greater than
15 feet relative to native grade (168 feet MSL) Soil at depths greater than 15 feet relative to
native grade shall be designated as containing total PCBs at a concentration -greater than or
equal to 50 mg/kq.
The cap inspections of the cap record keeping and future repairs to the cap shall meet the
requirements of 40 CFR 761 61(a)7 A restrictive land use covenant (LUC) recording for the
cap and underlying soil shall meet 40 CFR 761 61(a)8 and will not require a low occupancy
area designation specified in 40 CFR 761 61(a)(8)(i)(A)(1) or the associated low occupancy
certification specified in 40 CFR 761 61(a)(8)(i)(B) The installed overlying warning
membrane and areas where these soils are consolidated shall be documented and surveyed,
and the survey information shall be added to the LUC.
In the area of the UWBs (at a depth of 15 feet or greater (at 168 feet MSL or deeper; Figure 4),
soil (or concrete) remains in place below the UWB with PCBs concentration above the site -
specific remediation goals. The UWB or underlying soil shall not be disturbed or moved. If
these areas are disturbed, then soil and concrete shall be removed for disposal based on in
situ total PCB concentrations recorded during the implementation of the RAP, as summarized
in Section 2.0 above and noted on Figure 4.
In addition, crushed concrete that was used on site as backfill and surface cover may contain
PCBs at concentrations less than or equal to 1 mg/kg (Figure 5). These materials shall be
maintained onsite.
Amec Foster Wheeler Environment & Infrastructure, Inc.
K \10627 003 0\Soil Mat Plan\Soil Management Plan Pechinev r2.doc Mgt RaRkgeil Mana@emeRt Plan—ReGh'FieY6
Soils containing other COCs, such as TPH (and/or Stoddard solvent). VOCs, or metals, shall
be maintained in the area where the soil is disturbed and not relocated to another area or
other portion of the site that is not impacted.
5.2 MONITORING REQUIREMENTS
This section describes monitoring measures for future site work where visibly stained soil or
odors are is -observed or where potentially TPH- or VOC-impacted soils may be discovered or
encountered in areas shown on Figure 7 during site grading and construction excavation.
Control and monitoring methods for VOC emissions (if encountered) and dust generation are
included in this section. While these elements are discussed in this section, all other
potentially applicable laws and regulations shall be considered prior to beginning earthwork at
the site.
5.2.1 SCAQMD Rule 1166 Requirements
Soil at the site may require VOC monitoring in accordance with South Coast Air Quality
Management District requirements (e.g., SCAQMD Rule 1166). Monitoring for the presence of
VOC-impacted soil and implementing a VOC-impacted soil mitigation plan approved by the
SCAQMD Executive Officer will be required if VOC-impacted soil is encountered during
grading and excavation work. A copy of the plan must be on site during the entire excavation
period, and the provisions for monitoring and reporting under the Rule 1166 permit/plan must
be implemented. The following vapor or odor mitigation measures may be implemented if
real-time air monitoring exceeds an action level or if odors are encountered that requires
mitigation from a health and safety perspective:
• Cover subject soil with clean soil or plastic sheeting:
• Reduce the pace of work:
• Reduce size of area being excavated: and/or
• Apply vapor suppression.
Construction procedures or vapor/odor control measures may be altered based on
observations of the effectiveness of such measures Work must stop until such measures are
improved or additional or more effective measures are employed. Additional air monitoring
may be conducted to confirm the effectiveness of emission reduction activities.
5.2.2 Fugitive Dust
Dust and odor control measures during site grading and excavation shall be implemented to
prevent airborne dust from leaving the site boundary, in accordance with SCAQMD
regulations. Conditions shall be evaluated and the adequacy of dust control measures, as
Amec Foster Wheeler Environment & Infrastructure, Inc.
K:\10627.003.0\Soil Mot Plan\Soil Management Plan Pechinev r2 docx _ 7
based on real-time monitoring and SCAQMD Rule 403, shall be evaluated. The following dust
mitigation measures may be implemented if real-time monitoring for fugitive dust exceeds the
action level or if observations of visible dust emissions at the site boundary are made.
• Apply water spray or mist during activities such as excavation or stockpile
management to minimize the generation of visible dust;
• Have a water supply available continuously;
• Cover soil stockpiles;
• Minimize open excavations;
• Use tarpaulin or other covers for truck carrying soils that travel on public streets;
• Keep the drop heights to a minimum, during the handling of materials or loading of
transportation vehicles;
• Keep vehicle speeds on the property below 5 miles per hour; and
• Reduce the pace of work.
Construction procedures or dust control measures may be altered based on observations of
the effectiveness of such measures. Work must stop until such measures are improved or
additional or more effective measures are employed. Additional air monitoring may be
conducted to confirm the effectiveness of emission reduction activities.
5.2.3 Storm Water Controls
Prior to construction activities, the contractor, in cooperation with the property owner, shall
obtain a general construction permit for storm water and erosion control measures under the
California General Permit for Storm Water Discharges Associated with Construction and Land
Disturbance Activities, Order No. 2009-0009-DWQ (General Permit).
During construction activities, the contractor shall implement a Storm Water Pollution
Prevention Plan (SWPPP).
5.3 SOIL TESTING AND EQUIPMENT DECONTAMINATION
If impacted soil is observed (based on visual staining, odors, or other observations or from
areas shown on Figure 7), soil sampling and analysis for TPH, PCBs, metals and VOCs shall
be conducted to assess the presence of these COCs at concentrations above the remediation
goals (Table 1). If impacted soil is encountered that exceeds the soil remediation goals and to
the extent the impacted soil requires excavation and offsite disposal, additional soil sampling
shall be conducted under the supervision of a Professional Geologist (PG) or Civil Engineer
Amec Foster Wheeler Environment & Infrastructure, Inc.
K \10627 003 0\Soil Mat Plan\Soil Manaaement Plan Pechinev r2 docx _ 8
(PE) registered in the State of California experienced in performing environmental
investigations.
The number of, and the methods used to collect the soil samples and the analyses to be
performed shall be selected in the field by the supervising PG or PE. The analytical suite shall
be selected based on field observations, and may include the following test methods:
• TPH with carbon chain range quantification (TPHcc) using EPA Method 8015M
(Modified);
• PCBs using EPA Method 8082 (using soxhlet extraction method 3540C);
• Metals using EPA Methods 6010B/7242; and
• VOCs using EPA Method 8260B and field preservation Method 5035.
Samples shall be collected in glass jars of brass tubes, which shall be sealed, uniquely
labeled, and stored in an ice chest filled with ice to keep the samples chilled. The samples
shall be shipped to an analytical laboratory accredited by the California State Water
Resources Control Board Environmental Laboratory Accreditation Program using chain of
custody procedures.
Re -useable sampling equipment (hand augers, shovels, etc.) will be decontaminated using the
following steps to reduce the potential for cross -contamination.
1. wash and scrub in non -phosphate detergent and potable water;
2. rinse in potable water; and
3. rinse in DI water and air dry
Investigation derived residuals, including decontamination water, shall be managed in
accordance with regulatory requirements.
If PCBs are detected (or suspected) in soil, re -usable sampling equipment shall be
decontaminated in accordance with 40 CFR 761.79. Liquid decontamination waste shall be
handled in accordance with 40 CFR 761.79.
6.4 STOCKPILE MANAGEMENT AND TESTING
During site grading or construction excavation work, excess soil spoils, including COC-
impacted soil, may be generated that require temporary stockpiling. Stockpiled soil may either
be returned to the soil interval from which the soil was encountered or may be transported off
site for disposal.
Amec Foster Wheeler Environment & Infrastructure, Inc.
K \10627 003 0\Soil Mat Plan\Soil Management Plan Pechinev r2.docx _ 9
If COC-impacted soil is encountered, the excavated COC-impacted soil shall be stockpiled on
plastic sheeting with a minimum thickness of 10 mils to reduce the potential for spreading
contamination on surface soil. Stockpiles shall be covered at the end of the work day with
plastic sheeting to reduce the potential for erosion or direct contact with storm water and to
prevent unauthorized access. Plastic sheeting shall be weighted down to prevent the pile from
being uncovered by wind. In addition to plastic sheeting covers, stockpiles should be
managed to minimize migration of contaminated soils, and may include proper sloping to
prevent run-on and infiltration of storm water, appropriate compaction to maintain stockpile
integrity, and adequate security for the site to deter trespassers.
Stockpiled soil containing total PCBs at concentrations greater than 50 mg/kg or higher must
be stored in accordance with 40 CFR 761.65. Soil containing PCBs shall be stored on site no
longer than 30 days.
If the stockpiled, COC-impacted soil is to be transported off site for disposal, the soil shall be
profiled for waste characteristics. For disposal purposes and profiling for PCBs, soil samples
shall be collected in -place (e.g., in -ground) for PCBs prior to excavation (not from stockpiles).
For other COCs (TPH, VOCs or metals), stockpile samples may be collected for waste
profiling purposes. Waste profiling shall consist of collecting soil samples (in -ground or from
stockpiles) for laboratory analyses at the following minimum frequency.
• One sample per 100 cubic yards excavated or less.
• Three samples per 100 to 500 cubic yards excavated.
• One sample per 500 cubic yards excavated up to 2500 cubic yards, and then
above 2500 cubic yards, one sample per 2500 cubic yards.
Sampling shall be conducted in conformance with the procedures stipulated by the supervising
PG or PE. Soil samples shall be analyzed for the following constituents.
• TPH with carbon chain range quantification (TPHcc) using EPA Method 8015M
(Modified);
• VOCs using EPA Method 8260E and field preservation Method 5035;
• PCBs using EPA Method 8082 (using soxhlet extraction method 3540C); and
• Metals using EPA Methods 6010/7242.
Other analyses may be required contingent on waste profiling requirements, receiving facility
requirements, or other regulatory directives.
Amec Foster Wheeler Environment & Infrastructure, Inc.
K \10627 003 0\Soil Mat Plan\Soil Management Plan Pechinev r2.docx . - 10
5.6 SITE ACCESS
Vehicle and personnel access to areas where potentially impacted soils (based on visual
staining, odors, or other observations or from areas shown on Figure 7) are encountered shall
be controlled. Caution tape, cones, fencing, steel plates, or other appropriate measures shall
be used to clearly designate the active area and to prevent access by the public. Stockpiles of
potentially impacted soil shall be secured to prevent unauthorized access.
5.6 IMPORT FILL SOIL REQUIREMENTS
If needed, any off -site soils brought to the site for use as backfill (import fill) must be tested in
general conformance with the Department of Toxic Substances Control (DTSC), Information
Advisory Clean Imported Fill Material document (DTSC, 2001). Import fill shall be tested for
target compounds based on the location of the fill source area; however, as a minimum, the fill
should be tested for the following constituents.
• TPHcc using EPA Method 8015;
• VOCs using EPA Method 82606;
• PCBs using EPA Method 8082 (using soxhlet extraction method 3540C); and
• Title 22 metals using 601013/7242.
Other analyses may be required contingent on the source of the import fill or
recommendations by the supervising PG or PE. A minimum of one sample for laboratory
analysis is suggested per 1000 tons of import fill per borrow site (single source). For
quantities above 5000 tons of import fill per borrow site (single source), one sample for
laboratory analysis is suggested per 5000 tons of import fill. For PCBs, import soil shall
contain less than 1 mg/kg of total PCBs.
6.7 AGENCY NOTIFICATIONS
DTSC shall be notified in the event that impacted soil is encountered in areas beyond what is
identified on Figure 7 during site grading or construction activities. If PCBs are detected in soil
(in -situ) at concentrations greater than 50 mg/kg US EPA shall be notified. Notification shall
be provided by phone followed by electronic mail describing the area and impacted soil
encountered.
6.0 HEALTH & SAFETY REQUIREMENTS
Project personnel shall comply with all applicable federal, state, and local regulations, as well
as the State of California Construction Safety Orders (Title 8). Additionally, if COC-impacted
soil is encountered, personnel working in the COC impacted area must comply with
Amec Foster Wheeler Environment & Infrastructure, Inc.
K \10627 003 0\Soil Mat Plan\Soil Management Plan Pechinev r2 docx _ 11
Occupational Safety and Health Administration (OSHA) regulations specified in 29 CFR
1910.120 and CCR Title 8, Section 5192. A site -specific health and safety plan shall be
prepared prior to the start of earth work.
7.0 LIMITATIONS
This SMP does not address topics related to other chemicals or media that may be
encountered during a redevelopment or future site actives, including but not limited to,
demolition and construction debris, asphalt, concrete, asbestos -containing materials, and
other affected media. If such materials are encountered, contractors and workers are
responsible for complying with all applicable laws pertaining to the handling and disposal of
these materials.
In preparing this SMP, Amec Foster Wheeler has relied upon certain information and
representations obtained from documents prepared by others. To the extent that
recommendations are based in whole or in part on such information, those conclusions are
contingent on its accuracy and validity. Amec Foster Wheeler assumes no responsibility for
any consequences arising from any information or condition that was concealed, withheld,
misrepresented, or otherwise not fully disclosed or available to Amec Foster Wheeler.
This SMP is based on current known site conditions and current laws, policies and regulations.
No representation is made to any present or future developer or property owner of the site, or
portions of the site with respect to future site conditions, other than those specifically identified
within this document.
Amec Foster Wheeler disclaims any responsibility for any unintended or unauthorized use of
this SMP. Amec Foster Wheeler has not made any commitment to, or assumed any obligation
or liability to any present or future developer, property owner, tenant, consultant, agent,
contractor, user or other party owning or visiting the Site or portion of the Site based upon or
arising out of implementation this SMP. It is expressly understood that while this SMP is
intended to provide guidance and establish a framework for the management of residual
chemicals in deeper soils to protect human health and the environment, this SMP shall not
create any warranties or obligations to Amec Foster Wheeler as to implementation, adequacy,
or success of protective measures under this SMP.
Amec Foster Wheeler Environment & Infrastructure, Inc.
K \10627 003 0\Soil Mat Plan\Soil Management Plan Pechinev r2 docx _ 12
8.0 REFERENCES
AMEC Environment & Infrastructure, Inc. (AMEC), 2012a, Feasibility Study, Former Pechiney
Cast Plate, Inc. Facility, 3200 Fruitland Avenue, Vernon, California, May 7.
AMEC, 2012b, Remedial Action Plan, Former Pechiney Cast Plate, Inc. Facility, 3200
Fruitland Avenue, Vernon, California, June 28.
AMEC, 2013a, Final Phase I Completion Report, Former Pechiney Cast Plate, Inc. Facility,
3200 Fruitland Avenue, Vernon, California, June 6 then revised November 13.
AMEC, 2013b, Phase V Completion Report, Former Pechiney Cast Plate, Inc. Facility, 3200
Fruitland Avenue, Vernon, California, September 26.
AMEC, 2013c, Phase III, IV, and VI Completion Report, Former Pechiney Cast Plate, Inc.
Facility, 3200 Fruitland Avenue, Vernon, California, October 7.
AMEC, 2013d, Phase II Completion Report, Former Pechiney Cast Plate, Inc. Facility, 3200
Fruitland Avenue, Vernon, California, November 7.
Department of Toxic Substances Control, 2001, Information Advisory Clean Imported Fill
Material.
Amec Foster Wheeler Environment & Infrastructure, Inc.
K \10627 003 0\Soil Mat Plan\Soil Management Plan Pechiney r2 docx _ 13
1 am . a In v 0 1
LETTER REGARDING SEWER CREDITS
WLST1261971756.8
COUNTY SANITATION DISTRICTS
OF LOS ANGELES COUNTY
1955 Workman Mill Road, Whittier, CA 90601-1400
Mailing Address: P.O. Box 4998, Whittier, CA 90607-4998
Telephone: (562) 699-7411, FAX: (562) 699-5422
www.locsd.org
Mr. Gerald Pepper
Pechiney Cast Plate, Inc.
2700 Daybreak Parkway
South Jordan, Utah 84095
Dear Mr. Pepper:
GRACE ROBINSON HYDE
Chief Engineer and Genera! Manager
October 22, 2015
File No.: 23-15-016885
Facility ID: 2098913
Capacity Units Allocation Request
3200 Fruitland Avenue
Vernon, California 90058
The County Sanitation Districts of Los Angeles County (Sanitation Districts) have
reviewed and approved your July 24, 2015, capacity unit allocation request. The total
940.62 capacity units have been allocated as summarized in the table below:
Entity
Parcels
Capacity Units Assigned
Pechiney Cast Plate Inc.
6310-008-020 and -021
740.00
Boyle at 54th LLC
6310-008-010, -011, -019
200.62
The credit allocation is allowed based upon the fact that all parcels listed above had all
buildings demolished and were owned by Pechiney Cast Plate, Inc.
If you have any questions regarding this requirement, please contact Alicia Barrera of the
Sanitation Districts' Industrial Waste Section at (562) 908-4288, extension 2918.
Very truly yours,
C�- ?( A
Laurence H. Smith
Supervising Engineer
Industrial Waste Section
LHS:AB:tld
cc: Kimberly Holland-Chomisky, Amec Foster Wheeler
DOC #: 3490799