07-21-2020 - AGENDA ITEM 03 CONSIDERATION OF FIRST AMENDMENTS TO THE AGREEMENT OF PURCHASE AND SALE, AND RIGHT OF ACCESS AND ENTRY AGREEMENT WTH SINGPOLI BD CAPITAL GROUP, LLC FOAGENDA ITEM NO. 3
AGENDA STAFF REPORT
City of West Covina I Office of the City Manager
DATE: July 21, 2020
TO: Mayor and City Council
FROM: David Carmany
City Manager
SUBJECT: CONSIDERATION OF FIRST AMENDMENTS TO THE AGREEMENT OF PURCHASE
AND SALE, AND RIGHT OF ACCESS AND ENTRY AGREEMENT WTH
SINGPOLI BD CAPITAL GROUP, LLC FOR DEVELOPMENT OF THE FORMER BKK
LANDFILL
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager to negotiate and execute the First
Amendment to the Agreement of Purchase and Sale and Joint Escrow Instructions (dated August 1, 2019) and
the First Amendment to the Right of Access and Entry Agreement (dated July 16, 2019) with Singpoli BD
Capital Group, LLC (Singpoli) through October 31, 2020 for the development of the former BKK Landfill
(APN Nos: 8735-001-919, 8735-001-920, 8735-001-921, 8735-001-931, 8735-002-906, 8735-002-909, and
8735-002-910; and Lease ofAPN 8735-022-018).
BACKGROUND:
The City of West Covina and Singpoli BD Capital Group executed the Agreement of Purchase and Sale and
Joint Escrow Instructions (Purchase Agreement) on August 1, 2019 for the sale and lease of approximately
190-acres of property. The City and Singpoli also executed a Right of Access and Entry Agreement (Access
Agreement) on July 16, 2019.
Pursuant to the Purchase Agreement, Singpoli has a 365-day expiration of the General Contingency Period. At
expiration of the General Contingency Period, Singpoli is required to provide the City with notification of
satisfaction with the purchase of the property.
In order to close escrow, both Singpoli and the City need to comply with conditions of closing pursuant to
Section 7 of the Purchase Agreement. Buyer conditions include: Inspection of the Property, Review of
Documents and Materials, and Satisfaction of the property. Seller conditions include: entering into a
Development Agreement, completion of California Environmental Quality Act (CEQA), and entering into a
Sublicense Agreement.
DISCUSSION:
Since the execution of the Purchase Agreement, Singpoli has conducted various surveys and studies to
determine project feasibility as part of the General Contingency Period. Singpoli is committed to proceeding
with the purchase of the property, however, Singpoli is requesting an extension of the General Contingency
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(5) Any permanently occupied human habitation; or
(6) A park or playground, provided that a golf course shall not be
considered a park or playground.
The environmental restriction and covenant to restrict use is in favor of the
City of West Covina, the Department of Toxic Substances Control, and the
U.S. Environmental Protection Agency, as a third party beneficiary. This
statement is not a declaration that a hazard exists."
Grantor: CITY OF WEST COVINA,
a California Municipal Corporation
By:
Print Name: David N. Carmany
Title: City Manager
Attest:
By:
Print Name: Lisa Sherrick
Title: Assistant City Clerk
Approved as to form:
JONES & MAYER
By:
Print Name: Thomas P. Duarte
Title: City Attorney
Page 8 of 9 of First Amendment to Purchase Agreement
EXHIBIT B
AGREEMENT AND COVENANT NOT TO SUE
Page 9 of 9 of First Amendment to Purchase Agreement
Winston H. Hickox
Agency Secretary
California Environmental
Protection Agency
June 18, 2003
Department of Toxic Substances Control
Edwin F. Lowry, Director
1001 "1" Street, 25th Floor
P.O. Box 806
Sacramento, California 95812-0806
BY OVERNIGHT MAIL
Mr. Andrew Pasmont
City Manager
City of West Covina
1444 W. Garvey Avenue
West Covina, California 91793
ORIGINAL EXECUTED PROSPECTIVE PURCHASER AGREEMENT
Dear Mr. Pasmont:
Enclosed please find an original of the Prospective Purchaser Agreement that was
executed by the Department of Toxic Substances Control. I have provided
Colin Lennard with a copy of the signature page.
Thank you for your cooperation. Please feel free to call me with questions or
comments at (916) 327-0979.
Sincerely,
ter.
r
Gray Davis
Governor
Antonette B. Cordero
Chief Counsel and Deputy Director
Marilee Hanson
Senior Staff Counsel
REDEVELOPMENT AGENCY
cc: Mr. Colin Lennard (signature page only)
Fulbright & Jaworski L.L.P. JUN 2 0 2003
865 South Figueroa Street, 291h Floor
Los Angeles, California 90017 WEST COVINA
The energy challenge facing California is real Every Californian needs to take Immediate action to reduce energy consumption.
For a list of simple ways you can reduce demand and out your energy costs, see our Web -site at www.dtsc. ca.gov.
9 Printed on Recycled Paper
STATE OF CALIFORNIA
CALIFORNIA ENVIRONMENTAL PROTECTION AGENCY
DEPARTMENT OF TOXIC SUBSTANCES CONTROL
In the Matter of:
THE BKK LANDFILL
2210 South Azusa Avenue
West Covina, California
and
CITY OF WEST COVINA
[Settling Respondent]
Docket No. HSA-A 02/03-174
AGREEMENT AND COVENANT
NOT TO SUE THE CITY
OF WEST COVINA
I. INTRODUCTION
1.1. Parties._ This Agreement and Covenant Not to Sue
(Agreement) is made and entered into by and between the State of
California, California Environmental Protection Agency,
Department of Toxic Substances Control (DISC) and the City of
West Covina, a municipal corporation (collectively the
"Parties")
1.2. Site. This Agreement applies to the site located at
2210 South Azusa Avenue in West Covina, Los Angeles County,
California and depicted generally on the map attached as Exhibit
1 and more particularly described in Section II of this
Agreement, Definitions. A legal description of the Site is the
consolidation of the legal descriptions of Parcels 1,2 and 3
(defined in Section II below) and attached as Exhibits 4,5 and 6.
1.3 Property. This Agreement applies to the Property,
which is the portion of the 583 acre Site comprised of Parcels 1
and 2 and more particularly described in Section II of this
Agreement.
A legal description of the Property is the consolidation of the
legal descriptions of Parcels 1 and 2 (defined in Section II
1
below) attached as Exhibits 4 and 5. Parcels 1 and 2 are depicted
in the map of the Site attached as Exhibit 1.
1.4. Jurisdiction. DTSC enters into this Agreement
pursuant to Health and Safety Code, division 20, chapter 6.8,
section 25300 et seq. (the Hazardous Substance Account Act
(HSAA), chapter 6.5, section 25100 et seq. (the Hazardous Waste
Control Law (HWCL))and Health and Safety Code sections 58009 and
58010. DTSC has authority to enter into agreements whereby DTSC
covenants not to sue or assert claims for environmental
remediation against prospective purchasers of environmentally
impacted properties, if such agreements are sufficiently in the
public interest.
I.S. Purpose. The Parties agree to undertake all actions
required by the terms and conditions of this Agreement. The
purpose of this Agreement is to settle and resolve, subject to
reservations and limitations contained in Sections V (Covenants
Not to Sue) and VIII (Certification),the potential liability of
the Settling Respondent for the Existing Contamination
(hereinafter defined) at the Property that would otherwise result
from Settling Respondent becoming the owner of the Property.
The City of West Covina, California, a municipal corporation
^� and the Redevelopment Agency of the City of West Covina,
California, a municipal corporation, ("Settling Respondent") are
duly authorized municipal corporations. The BKK Corporation
("BKK") is the owner and operator of the BKK hazardous waste
landfill, which is located at 2210 South Azusa Avenue, West
Covina, California, 91792, wholly within the boundaries of the
___City of West _Covina, California _(the _"Site"_)_.___
Settling Respondent has certain land use authority over the
Site, as well as certain Local Enforcement Authority over a
portion of the Site, as defined herein. The Site is part of a
redevelopment project area duly established by the Redevelopment
Agency of the City of West Covina (the "Agency"). The Agency
desires to purchase Parcels 1 and 2 of the Site (the "Property")
from BKK and plans to develop a portion of Parcel 1 of the
Property for sports park activities, plans to sell another
portion of Parcel 1 of the Property for commercial development
and plans to develop Parcel 2 of the Property (along with Lot 5
and a portion of Parcel 3) as a municipal golf course. A certain
portion of Parcel 1 may also be set aside as habitat for the
threatened California gnatcatcher. The Agency also desires to
purchase Lot 5, which is not part of the Site, from BKK and
desires to enter into a licensing agreement with BKK in order to
use a portion of Parcel 3, which is part of the Site, for the
golf course.
J
The Parties agree that the Settling Respondent's entry into
this Agreement, and the actions undertaken by the Settling
Respondent in accordance with this Agreement, do not constitute
an admission of any liability by the Settling Respondent.
The resolution of this potential liability, in exchange for
provision by the Settling Respondent to DTSC of a substantial
benefit, is in the public interest.
This Agreement shall be subject to the Settling Respondent's
acquisition of title to the Property. If Settling Respondent
fails to acquire title to the Property,, the Agreement shall be
null and void and DTSC reserves all rights it may otherwise have
against Settling Respondent.
II. DEFINITIONS
Unless otherwise expressly provided herein, terms used in
this Agreement that are defined in CERCLA, RCRA, the Health and
Safety Code or in implementing regulations promulgated thereunder
shall have the meaning assigned to them in those statutes and
regulations, including any amendments thereto.
1. "Agency" shall mean the Redevelopment Agency of the
City of.West Covina, California.
2. "EKK" shall mean the BKK Corporation.
3. "City of West Covina" shall mean the City of West
Covina, California, a municipal corporation and any successor
agency thereto.
4. "Documents" shall means papers, information, memoranda,
letters, studies, reports, handwritten or typed notes, facsimile
compilations, electronic mail, recordings, tapes and all other
types of records.
5. "DTSC" shall mean the State of California,
Environmental Protection Agency, Department of Toxic Substances
Control and any successor departments or agencies of the State of
California that may have responsibility for and jurisdiction over
the subject matter of this Agreement.
6. "EPA" shall mean the United States Environmental
Protection Agency and any successor departments or agencies of
the United States.
7. "Existing Contamination" shall mean:
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(a) any hazardous wastes within the meaning of Health
and Safety Code section 25117, hazardous substances,
pollutants or contaminants, present or existing on
or under (including within the groundwater beneath)
the Property as of the Effective Date of this
Agreement;
(b) any hazardous wastes within the meaning of Health
and Safety Code section 25117, hazardous substances,
pollutants or contaminants that migrated from the
Property prior to the effective date of this Agreement;
and
(c) any hazardous wastes within the meaning of Health
and Safety Code section 25117, hazardous substances,
pollutants or contaminants presently at the Site that
migrate onto or under or from the Property after the
effective date of this Agreement.
8. "Final Settlement Costs" shall mean those closing costs
and prorations to be paid by or charged against BKK under the
Purchase Agreement, including, without limitation, escrow fees,
title insurance premiums, recording fees, documentary transfer
taxes, prorations of taxes and expenses and any and all other
costs and expenses to be paid by BKK at closing, all pursuant to
Section 6 of the Purchase Agreement.
9. "Final Workplan" means the Final Workplan described in
Section III of the First Consent Order Modification (Submittal of
-._ Monitoring Plan for Development),-. which will _implement -the
__
Environmental Monitoring Protocol attached to and defined in the
First Consent Order Modification.
10. "First Consent Order Modification" shall mean the First
Modification to Administrative order on Consent (U.S. EPA Docket
No. RCRA-9-2000-003) entered into between BKK and EPA, effective
January 22, 2002.
11. "Institutional Controls" shall mean the Environmental
Restrictions recorded with the Recorder's Office of Los Angeles
County, California on May 29, 2001 applicable to the Property,
and any modifications thereto, copies of which are attached
hereto as.Exhibit 2 of this Agreement.
12. "Lot 5" shall mean the real property located adjacent
to the Site, encompassing approximately 73.1 acres, which is
described in Exhibit 3 of this Agreement.
13. "Monitoring Protocol Funds" shall mean the four hundred
and twenty -thousand dollars ($420,000.00) of the net proceeds of
the sale of the Property and Lot 5 pursuant to the Purchase
Agreement, plus any interest earned on said four hundred and
twenty -thousand dollars ($420,000.00), to be used for the purpose
of implementing, and/or purchasing financial assurance for the
implementation of, the Final Workplan in accordance with the
First Consent Order Modification, all in accordance with the Site
Funds Escrow Agreement.
14. "Parcel 1" shall mean that portion of the Site,
encompassing approximately 101.198 acres, which is described in
Exhibit 4 of this Agreement.
15. "Parcel 2" shall mean that portion of the Site,
encompassing approximately 56.84 acres, which is described in
Exhibit 5 of this Agreement.
16. "Parcel 3" shall mean that portion of the Site,
encompassing approximately 425.172 acres, which is described in
Exhibit 6 of this Agreement.
17. "Parties" shall mean the State of California, California
Environmental Protection Agency, Department of Toxic Substances
Control, and the Settling Respondent.
18. "Property" shall mean that portion.of the 583- acre.Site
encompassing both Parcels 1 and 2.
19. "Purchase Agreement" shall mean that certain Agreement
of Purchase and Sale and Joint_ Escrow Instructions , dated as of
June 27, 2002, by and.between the Agency as Purchaser and BKK as
seller, and any and all amendments thereto, which agreement and
its amendments are all attached hereto as Exhibit 7.
20. "Release" shall have the meaning given it under both
CERCLA section 101(22), 42 U.S.C. § 9601(22), and RCRA section
3008(h), 42 U.S.C. § 6928(h).
21. "Remaining Funds" shall mean the funds deposited into
the Site Funds Escrow, excluding the Monitoring Protocol Funds,
plus any interest earned on such funds.
22. "Sale Escrow Holder" shall mean First American Title
Company, which is the Escrow Holder as defined in the Purchase
Agreement.
23. "Second Consent Order Modification" shall mean the
Second Modification to Administrative Order on Consent (U.S. EPA
5
Docket No. RCRA-9-2000-003) to be entered into between BKK and
EPA.
24. "Security Agreements" shall mean the security agreements
to be entered into by and between EPA and BKK and DTSC and BKK
respectively, in substantially the same form as the documents
attached hereto as Exhibit 8 and Exhibit 9, respectively.
25. "Settling Respondent" shall mean the City of West
Covina, California, a municipal corporation, including without
limitation the Agency.
26. "Site" shall mean the BKK Landfill RCRA facility
encompassing approximately 583 acres, located at 2210 South Azusa
Avenue, in West Covina, Los Angeles County, California, and
depicted generally on the map attached as Exhibit 1 of this
Agreement. The Site shall include the contiguous 583 acres of
real property which, at the time it was split into three separate
legal parcels (Parcels 1, 2 and 3) by the recording of a final
parcel map on May 29, 2001 with the Recorder's Office of Los
Angeles County, California, was owned by BKK. The Site includes:
the closed hazardous waste landfill ("Class I landfill"),,
consisting of approximately 190 acres, where hazardous wastes
were disposed of from 1972 to 1984 and municipal waste and
asbestos were disposed, until 1987; the adjacent inactive
municipal solid waste landfill ("Class III landfill"), consisting
of approximately 170 acres, which was operated from 1987.to 1996;
a leachate treatment plant; and gas combustion and energy
recovery facilities. The Site also includes the Property, and
all areas to which hazardous wastes within the meaning of Health
and Safety Code section 25117,_ hazardous substances_and[or
pollutants or contaminants, have come to be located.
27. "Site Funds Escrow" shall mean the escrow accounts
subject to the Site Funds Escrow Agreement.
28. "Site Funds Escrow Agreement" shall mean the agreement
to be entered into by and between BKK, Settling Respondent and
Wells Fargo Bank in substantially the same form as the document
attached hereto as Exhibit 10.
29."Supplemental Escrow Instructions" shall mean the Fifth
Amendment to Agreement of Purchase and Sale and Joint Escrow
Instructions to be delivered to the Sale Escrow Holder in
accordance with the provisions of this Agreement, a true and
correct copy of which is attached hereto as part of Exhibit 7.
30."United States" shall mean the United States of America,
its departments, agencies and instrumentalities.
III. STATEMENT OF FACTS
DTSC hereby finds:
3.1. Ownership. The Site is currently owned by BKK.
3.2. Parcels. On May 29, 2001, the RCRA facility was
divided by BKK into three separate parcels (commonly known as
Parcels 1, 2 and 3) by the recording of a final parcel map with
the Recorder's Office of'Los Angeles County,.California.
3.3. Institutional Controls. Also on May 29, 2001, the
Institutional Controls, which were signed by DTSC, Settling
Respondent and BKK, were recorded with the Recorder's Office of
Los Angeles County, California on the Property.
3.4 Contemplated Development. The Settling Respondent
contemplates a development of a sports park on a portion of
Parcel 1 of the Property, contemplates selling another portion of
Parcel 1 for commercial development, and contemplates development
of a municipal golf course on Parcel 2 of the Property, Lot 5 and
the portion of Parcel 3 subject to the licensing agreement
between BKK and the Settling Respondent.
3.5. Site History. [Note: see the definition of "Site" in
Section II above for additional history of the Site.] The.Site,
which means the RCRA facility (the Facility) encompassing
approximately 583 acres, sits on previously rural land and
includes the following Solid Waste Management Units (SWMUs):'an-
operational Leachate Treatment Plant (LTP), a closed Class I
landfill (on Parcel 3), an'inactive Class III landfill (currently
undergoing closure, on Parcel 3) and the inactive Area D landfill
on Parcel 3 and formerly in the southern portion of Parcel 1.
The Class I and Class III landfills are shown on Exhibit 1. The
LTP treats wastewaters that derive from post -closure care of the
closed Class I landfill and management of the inactive Class III
landfill.
Approximately 3.4 million tons of liquid and solid
hazardous wastes were disposed, together with nonhazardous
wastes, in the unlined Class I landfill while it operated.
Numerous types of hazardous wastes from a variety of sources were
disposed at the Class I landfill. An extensive list of wastes BKK
reports it accepted is in the draft Hazardous Waste Facility
Post -Closure Permit issued by DTSC in November, 1999.
Closure construction was completed in March 1989 and
certification was provided to DTSC on May 15, 1989. DTSC
acknowledged closure certification on June 12, 1991. Closure
11/25/2020
Print Staff Report
Period. They have indicated that the request is due to COVID-19 and economic uncertainty that has been
created.
Singpoli is requesting an extension of their General Contingency Period to October 31, 2020, and has agreed
to proceed to close escrow no later than October 31, 2020. In exchange for the extension, Singpoli has offered
to have the deposit of $405,000 become nonrefundable, waive the Seller's obligations to close escrow (buying
the property "where is/as-is").
Currently, the General Contingency Period expires on August 8, 2020, which is 365 days from when escrow
was opened. If the extension is not granted, Singpoli will need to provide the City with notice of approval of
condition of title by August 8, 2020 or the deposit shall be returned to Singpoli.
In addition to Singpoli's request for extension, the City is seeking amendments the Purchase Agreement to
delete its conditions to closing pursuant to Section 7(b) and to insert language pertaining to Department of
Toxic Substances Control (DTSC) process for transfer of title. Specifically, DTSC has requested that the
Purchase Agreement incorporate certain environmental use restrictions and certain immunities granted to the
City.
The City is also seeking amendments to the Right of Entry and Access Agreement. Many of these amendments
are made at the request of DTSC, which clarify that DTSC is party to the indemnification and insurance. The
amendment also updates the term of the Entry and Access Agreement to coincide with the term of the
Purchase Agreement.
Staff is recommending that the City Council authorize the City Manager to negotiate and execute the First
Amendment to the Purchase and Sale Agreement and Joint Escrow Instructions, and the First Amendment to
the Right of Entry and Access Agreement as outlined above.
LEGAL REVIEW:
The City Attorneys' Office has reviewed and approved the Amendments as to form.
OPTIONS:
The City Council has the following options:
1. Approve staff's recommendation;
2. Approve different terms for extension; or
3. Provide alternative direction.
Attachments
Attachment No. 1 - First Amendment to Agreement of Purchase and Exhibits
Attachment No. 2 - First Amendment to Right of Entry and Access Agreement
CITY Achieve Fiscal Sustainability and Financial Stability
COUNCIL Enhance the City Image and Effectiveness
GOALS & Engage in Proactive Economic Development
OBJECTIVES:
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included installation of a clay and vegetative cover, a gas
collection system, and construction of the LTP.
The closed Class I landfill is currently under a post -
closure care and maintenance program. The waste remains buried
within the landfill. The activities being currently conducted at
the Class I landfill include: post -closure monitoring, landfill
gas, leachate and contaminated groundwater extraction;
inspection; maintenance and RCRA corrective action. A final
Stipulated Permanent Injunction approved by the Los Angeles
Superior Court on or about October 28, 1988. (Case No. C507317)
also requires monitoring and corrective action. A network of
extraction wells is used to remove leachate, landfill gas, and
contaminated ground water. A network of groundwater monitoring
wells is used to monitor ground water around the landfill.
The draft Hazardous Waste Facility Post -Closure Permit DTSC
issued for the Facility (Site) in 1999 included a draft post
closure permit for the Class I landfill and draft operating
permit for the LTP. DTSC is currently preparing the final
consolidated permit for the Facility.
3.6. Documents Related to Substances Found at the Site.
Numerous Documents discuss hazardous substances at the Site and.
contamination of media such as soil, groundwater, surface water,
pore gas and air, including, but not limited to, the following:
Agra Earth & Environmental Inc., Soil and Water Sampling and
Testing Program, Lower Retention Basin, BKK Landfill (November
25, 1992);
The Janes Network, Resource Conservation and Recovery Act
Facility Investigation- Groundwater, BKK Landfill (October 31,
1997);
BKK, Part B Hazardous Waste Facility Permit Application
(1997).
The Janes Network, Groundworks Environmental -Inc., and CB
Consulting, Inc., Resource Conservation and Recovery Act,
Groundwater Interim Remedial Measures Study, BKK Landfill
(February 27, 1998);
CB Consulting, Inc.,Corrective Measures Study (CMS) for
Groundwater, BKK Landfill (August 5, 1998);
DTSC, Draft Hazardous Waste Facility Class I Landfill Post -
Closure Care Permit, BKK Landfill (November, 1999);
8
Administrative Order on Consent Entered into Between US EPA
and BKK (Docket No. RCRA-9-2000-003) (September
14,2000)(attachment with Exhibit 2 of this Agreement) ;
BILK, Excavation Soils Monitoring Plan for Business Park
Development (December 20, 2000);
DTSC, Business Park Development, Soil Monitoring Plan, BKK
Landfill (March 14, 2001);
.BKK, Excavation of 1960s Trash Near West Near West Entrance
of BKK Landfill Site/ Borehole Investigation Report, BKK Landfill
Site (July 10, 2001);
BKK, Excavation of 1960s Trash from Old Area D at BKK
Landfill Site (July 11, 2001);
BKK, Parcel I at BKK Landfill Site (October 12, 2001);
BKK, Non -Routine Groundwater Monitoring in Parcel 1 at BKK
Landfill Site (January 18, 2002);
Janes, Steve, Wells and Geology of the Western Entrance Area
(February 26, 2002);
DTSC, Request for Additional Data, Southern 31 Acres of
Parcel 1, BKK Landfill (March 1, 2002);
Romanowski, Walter, Memorandum to BKK re: Field Projects
Conducted in Area D (May 20, 2002);
BKK, Petrogenic Gas at the Northwest Corner of BKK Landfill
Site (June 27, 2002);
BKK, BKK Landfill Quarterly Groundwater Monitoring
Report-3rd Quarter, 2002 (November 13, 2002);
BKK, SCAQMD Rule 1150.1 Quarterly Air Monitoring Report, BKK
Landfill (January 17, 2003);
BKK, Groundwater Monitoring Report Annual Summary; BKK
Landfill (March 28, 2003);
DTSC, Surface Water Monitoring and Need to Cease Sub -Drain
Discharges at the Detention Basins, BKK Landfill (March 3, 2003);
and
BKK, Scope of Work for Soil, Groundwater and Soil Gas
Sampling for Southern 31 Acres of Parcel I at BKK Landfill Site
(April 16, 2003).
9
3.7. Settling Respondent's Representations. The Settling
Respondent represents, and for the purposes of this Agreement
DTSC relies on those representations, that Settling Respondent's
involvement with the Property has been limited to the following:
landfill related actions at the Site pursuant to its land use
authority under the California Government Code; landfill related
inspection and enforcement actions at the Site pursuant to its
Local Enforcement Agency designation under the California Public
Resources Code; and other landfill related actions at the Site
pursuant to and in its capacity as a municipal corporation.
IV. AGREEMENt
4.1. IT IS HEREBY AGREED THAT the Settling Respondent shall
execute and deliver valid escrow instructions pursuant to Section
4.2 (Payment) and may, if required, conduct activities under the
terms of, and in accordance with, the Work to Be Performed
contained in Section 4.3. Settling Respondent shall conduct
activities in Section 4.3 in the manner specified herein and in
accordance with the Final Workplan. All work shall be performed
consistent with the HSAA, the HWCL (as defined in Section 1.4),
as amended and the National Contingency Plan (40 Code of Federal
Regulations (C.F.R) Part 300), as amended.
4.2. Payment
(a) Escrow Instructions. In consideration of and in
exchange for DTSC's Covenant Not to Sue in Section 5.1. herein,
Settling Respondent agrees to execute and deliver, and shall use
its best efforts to cause BKK to execute and deliver, valid
supplemental escrow instructions to the Sale Escrow Holder
instructing the Sale Escrow Holder at close of Escrow (as defined
in the Purchase Agreement) to:
(1) Pay in Full: ( I) all amounts due and payable
under that certain Promissory Note, dated October 22, '2001, in
the original principal amount of three million dollars
($3,000,000.00) executed by BKK to the order of South Bay Bank,
NA as secured by that certain Deed of Trust dated October 22,
2001, executed by BKK for the benefit of South Bay Bank, NA,
filed of record in the Official Records of Los Angeles County,
California on October 30, 2001, as Instrument No. 2001-2067839,
and (ii) all amounts then due -and payable under that certain Non -
Negotiable Promissory Note, dated April 15, 1996, in the original
principal amount of three million, five -hundred thousand dollars
($3,500,000.00), executed by BKK to the order of the City;
(2) Pay all Final Settlement Costs; and
10
(3) Deposit the remainder of the Purchase Price
(as that term is defined in the Purchase Agreement)into the Site
Funds Escrow on the Closing Date (as that term is defined in the
Purchase Agreement). The funds distributed from the Site Funds
Escrow are to be used as follows: (i) the Monitoring Protocol
Funds are to be used by BKK or the Settling Respondent to perform
the monitoring described in, and required of BKK pursuant to, the
First Consent Order Modification or to purchase financial
assurances to implement said monitoring or are to be deposited
into a Superfund Special Account managed by EPA ; and ( ii) the
Remaining Funds are to be used by BKK strictly in accordance
with the requirements of Section 10 (d)(ii) of the Purchase
Agreement and the provisions of the Site Funds Escrow Agreement
or are to be deposited into the Removal and Remediation Activity
Account managed by DTSC, all in accordance with the Site Funds
Escrow Agreement.
(b) DTSC Concurrence. In accordance with the Site
Funds Escrow Agreement, DTSC agrees that it shall provide the
written concurrence on or written explanation as to no
concurrence on any written proposal regarding any addition or
modification to the Site Funds Escrow Agreement no later than
five (5) business days following the receipt of a such written
proposal. Such written concurrence on or written explanation as
to no concurrence on any such written proposal shall be signed by
the Chief of the Permitting Branch or the Deputy Director of the
Hazardous Waste Management. Program, which shall not,be,;,
unreasonably withheld.
(c) Failure to Execute and Deliver Valid Escrow
Instructions or Failure to Meet Recruirements of Purchase
.Agreement. In accordance with Section'S.2 (DTSC's Reservation of
Rights)of this Agreement, it is understood and agreed by the
Parties that, should the fully executed Supplemental Escrow
Instructions fail to be delivered to the Sale Escrow Holder in
accordance with paragraph (a) of Section 4.2(Payment/Escrow
Instructions) of this Agreement, or should the monies fail to be
deposited into the Site Funds Escrow in accordance with the
Supplemental Escrow Instructions or should the monies deposited
into the Site Funds Escrow fail to be used in accordance with the
requirements of Section 10 (d)(ii) of the Purchase Agreement, the
Site Funds Escrow Agreement and paragraph (a) of Section
4.2(Payment/Escrow Instructions) of this Agreement , the covenant
not sue set forth in Section 5.1 (DTSC's Covenant Not to Sue) of
the this Agreement,shall be null and void and DTSC reserves all
rights it may have.
11
4.3. Work to Be Performed.
,(a) Implement Final Workplan. Settling Respondent
agrees that, should BKK fail to submit and/or fully implement the
Final Workplan in accordance with and as required by the First
Consent Order Modification, Settling Respondent shall submit
and/or fully implement the Final Workplan in accordance with the
First Consent Order Modification for so long as and to the extent
funds are available from the sources set forth below to Settling
Respondent for this purpose under: (i) the Site Funds Escrow
(with respect to the Monitoring Protocol Funds); (ii) any
financial assurance mechanism purchased with the Monitoring
Protocol Funds; or (iii) any financial assurance mechanism
established for the purpose of ensuring the implementation of the
Final Workplan in accordance with the Second Consent Order
Modification. Settling Respondent agrees to obtain all necessary
approvals from DTSC and abide by all approved schedules relating
to submittal and implementation of the Final Workplan that BKK
would have otherwise been obligated to abide by or obtain.
Settling Respondent intends to perform the work required under
this paragraph (a) of Section 4.3 (Work to be Performed/Implement
Final Workplan) through duly retained environmental consultants.
It is understood and agreed by the parties that, in the event no
funds described in this paragraph are available to Settling
Respondent to submit or fully implement the Final Workplan,
Settling Respondent shall have no further obligations under this
paragraph (a) of Section 4.3 (Work to be Performed/Implement
Final Workplan) with respect to 'fully implementing the Final
Workplan.
(b) Settling Respondent also agrees to cooperate fully
in being named as an additional insured, or additional payee, or
otherwise being identified as an'entity to whom the funds for the
preparation and/or implementation of the Final Workplan will be
made available in.accordance with this Agreement and the Second
Consent Order Modification.
(c) Direct Remaining Funds. The Site Funds Escrow
Agreement requires that, if an "Event of Default" occurs under
either of the Security Agreements prior to disbursement of all
funds from the Site Funds Escrow, the Agency, DTSC and/or EPA
shall direct the escrow holder for the Site Funds Escrow in
writing to: (1) disburse any portion of the Monitoring Protocol
Funds remaining in the Site Funds Escrow to a Superfund Special
Account to be established by EPA pursuant to the provisions of
CERCLA; and (2) disburse the remainder of the funds in the Site
Funds Escrow to the Removal and Remediation Activity Account
managed by DTSC to fund remediation activities at the Site. In
Jsuch an event, and not withstanding Section 4.2, paragraph
12
(a)(3)of this Agreement (Payment /Escrow Instructions) , EPA
shall use any funds deposited into a Superfund Special Account
consistent with the list of "Permitted Disbursements" attached as
Exhibit "A" to the Site Funds Escrow Agreement. It is understood
and agreed by the Parties that, upon the deposit of any such
funds into an Superfund Special Account, Settling Respondent
shall have no further obligations under this Section 4.3 (Work to
be Performed) with respect to the Monitoring Protocol Funds.
V. COVENANTS NOT TO SUE
5.1. DTSC's Covenant Not to Sue. (a) Subject to Section
5.2. (Reservation of Rights), upon payment of the amount
specified in Section 4.2 (Payment)of this Agreement and
contingent upon satisfactory compliance with the terms of this
Agreement, on and subsequent to the Effective Date of this
Agreement, DTSC covenants not to sue or take any civil or
administrative action against Settling Respondent for any and all
civil liability, for injunctive relief or reimbursement of
response costs pursuant to Section 107 (a) of CERCLA, 42 U.S.C.
section 9607 (a); 7002 of RCRA, 42 U.S.C. section 6973; or
chapters 6.5 (commencing with Section 25100) and 6.8 (commencing
with section 25301), division 20 of the Health and Safety Code
with respect to Existing Contamination and as limited in
paragraph (b) below.
(b) This covenant not to sue shall extend only to any
liability Settling Respondent may have for Existing Contamination
under either RCRA, CERCLA or the Health and Safety Code as an
"owner" of Parcel 1 and as an "owner" of Parcel 2, as that term
is used under CERCLA section 107(a), 42 U.S.C. section 9607(a),
RCRA section 3008(a)', 42 U.S.C. section 6928(a), the Health and
Safety Code and implementing regulations, and/or as defined in 40
C.F.R section 260.10. It shall not extend to any other possible
liability Settling Respondent may have with respect to the Site.
5.2. DTSC's Reservation of Rights. The covenant not to sue
set forth in Section 5.1. above does not pertain to any matters
other than those expressly specified in Section 5.1 (DTSC
Covenant Not to Sue). DTSC reserves and this Agreement is
without prejudice to all rights against Settling Respondent with
respect to all other matters, including but not limited to, the
following;
(a) claims based on a failure by Settling Respondent, its
successors, assignees, transferees or lessees to meet a
.requirement of this Agreement. (However, it is understood and
agreed by the parties that only Settling Respondent City of West
Covina remains responsible for performance of the work in
accordance with Section 4.1 (Agreement) Section 4.2 (Payment),
13
Section 4.3 (Work to be Performed)and Exhibit 10 (Site Funds
Escrow Agreement));
(b) any liability resulting from past or future Releases
(within the meaning of RCRA section 3008, subsection(h)) of
hazardous wastes (within the meaning of Health and Safety Code
section 25117), substances, pollutants or contaminants, at or
from the Site caused or contributed to by Settling Respondent,
successors, assignees, transferee, lessees or sub -lessees ;
(c) any liability resulting from exacerbation by Settling
Respondent, successors, assignees, transferees, lessees or sub-
lessees of Existing Contamination;
(d) any liability resulting from the release (within the
meaning of RCRA section 3008, subdivision (h)) or threat of
release of hazardous wastes (within the meaning of Health and
Safety Code section 25117), substances, pollutants or
contaminants, at the Site after the Effective Date of this
Agreement, not within the definition of Existing Contamination;
(e) criminal liability;
(f) liability for damages.for injury to, destruction of, or
loss of natural resources, and for the costs of any natural
resource damage assessment incurred by agencies other than DTSC;
(g) liability under CERCLA section .107 (a)(3) and (4);
(h) liability for violations of local, State or federal law
or regulations;
(i) liability relating to the Institutional Controls
attached hereto as Exhibit 2; and
(j) any claims against Settling Respondent.City of West
Covina in the event of either the fully executed Supplemental
Escrow Instructions failing to be delivered to the Sale Escrow
Holder in accordance with Section 4.2 (Payment) or the monies
deposited into the Sale Escrow failing to be used in accordance
with the requirements of Section 10 (d)'(ii) of the Purchase
Agreement and the Site Funds Escrow Agreement,
5.2.1. With respect to any claim or cause of action
asserted by DTSC, the Settling Respondent, successors, assigns,
transferees, lessees and sub -lessees shall bear the burden of
proving -.that the claim or cause of action, or any part thereof,
is attributable solely to Existing Contamination_
5.2.2. If Settling Respondent and/or any successor,
assignee, transferee, lessee or sub -lessee is determined, through
adjudication or the administrative or the regulatory processes,
to have committed an act or omission after the Effective Date for
which DTSC'has specifically reserved its rights in (a) through
(j) above, Settling Respondent (if it was so determined to have
committed the act or omission), or the particular successor,
assignee, transferee, lessee or sub -lessee that was determined to
have committed the act or omission, shall be liable for all
14
enforcement costs including, but not limited to, litigation
costs, incurred by DTSC in conjunction with that act or omission.
5.2.3. Nothing in this Agreement is intended as a release
or covenant not to sue for any claim or cause of action,
administrative or judicial, civil or criminal, past or future, in
law or in equity, which DTSC may have against any person, firm,
corporation or other entity not a party to this Agreement.
5.2.4. Nothing in this Agreement is intended to limit the
right of DTSC to undertake future response actions, remedial
activities, or any other action or activity taken pursuant to, or
authorized by, CERCLA, RCRA or the Health and Safety Code at the
Site or to seek to compel parties other than the Settling
Respondent and/or any successor, assignee, transferee, lessee or
sub -lessee to perform or pay for such actions and activities at
the Site. Nothing in this Agreement shall in any way restrict or
limit the nature or scope of response actions, remedial
activities, or any other action or activity taken pursuant to, or
authorized by, CERCLA, RCRA or the Health and Safety Code which
may be taken or be required by DTSC in exercising its authority
under federal and State law. Settling Respondent acknowledgaa::_
that it is purchasing Property where response actions, remedial
activities, or other activities taken pursuant to, or authorized
by, CERCLA, RCRA and/or the Health and Safety Code may be
required. DTSC agrees when it undertakes such actions or
activities, consistent with its responsibilities under applicable
law, to use reasonable efforts to minimize any interference with
use of the Property by Settling Respondent.
5.3. Settling Respondent's Covenant Not to Sue. In
consideration of DTSC's Covenant Not To Sue in Section 5.1. of
this Agreement, the Settling Respondent hereby covenants not to
sue and not to assert any claims'or causes of action against
DTSC, its authorized officers, employees, or representatives with
respect to the Site or this Agreement, including but not limited
to: (i) any direct or indirect claim for reimbursement from the
Hazardous Waste Control Account, Hazardous Substance Account, or
Hazardous Substance Cleanup Fund through Health and Safety Code
section 25375 or any other provision of law; (ii) any claim
against the State of California, including any department, agency
or instrumentality of the State under sections 107 or 113 of
CERCLA or section 7002 of RCRA related to the Site ; (iii) any
other claims arising out of response actions or any other
activity taken pursuant to, or authorized by, CERCLA, RCRA or the
Health and Safety Codeat the Site, including claims based on
DTSC's oversight activities or approval of plans for such
activities, or claims for just compensation against the State of
California, including any department, agency or instrumentality
of the State for "taking" property based on the Fifth Amendment
15
to the United States Constitution or based on Article I, Section
19 of the California Constitution, nuisance, trespass, equitable
indemnity and indemnity under California law, or strict liability
under California law. This Covenant is made and given by Settling
Respondent, and is effective upon execution by Settling
Respondent of this Agreement: and does not extend to or bind other
persons. .
5.4. Settling Respondent's Reservation of Rights. The
Settling Respondent reserves, and this Agreement is without
prejudice to,.actions against DTSC based on negligence, not
including oversight or approval of the Settling Respondent's
plans or activities, that are brought pursuant to any statute
other than the Hazardous Waste Control Account, Hazardous Waste
Control Law, Hazardous Substance Account, Hazardous Substance
Cleanup Fund through Health and Safety Code section 25375,
CERCLA, or RCRA.
VI. CONTRIBUTION PROTECTION
6.1. With regard to claims for .contribution against
Settling Respondent, the Parties hereto agree that the Settling
Respondent is entitled to protection from contribution actions or
claims as.provided by CERCLA section 113, subdivision(f)(2),.42
U.S.C. section 9613, subdivision(f)(2) for CERCLA matters
addressed in this Agreement. The CERCLA matters addressed .in
this Agreement are all response actions taken or to be taken and
response costs incurred or to be incurred by DTSC or any other
person for the Site with respect to the Existing Contamination.
6.2. The Settling Respondent agrees that with respect to
any suit or claim for contribution brought by Settling Respondent
for matters related to this Agreement it will notify DTSC in
writing no later than sixty (60) days prior to the initiation of
any such suit or claim.
6.3. The Settling Respondent also agrees that with respect
to any suit or claim for contribution brought against it for
matters related to this Agreement it will notify in writing DTSC
within ten (10) days of service of the complaint on them.
VII. DUE CARE/COOPERATION
7. The Settling Respondent shall exercise due care at.the
Site with respect to the Existing Contamination and shall comply
with all applicable local, State, and federal laws and
regulations. The Settling Respondent shall also comply with all
obligations needed to maintain the "Institutional Controls". The
16
Settling Respondent recognizes that the implementation of
response actions, remedial activities, or any other activity
taken pursuant to, or authorized by, CERCLA, RCRA or the Health
and Safety Code at the Site may interfere with the Settling
Respondent's use of the Property and/or Lot 5, and may require
closure of its operations or a part thereof. The Settling
Respondent agrees to cooperate fully with DTSC in the
implementation of response actions, remedial activities, or any
other activity taken pursuant to, or authorized by, CERCLA, RCRA
or the Health and Safety Code at the Site and further agrees not
to interfere with such response activities.DTSC agrees,
consistent with its responsibilities under applicable law, to use
reasonable efforts to minimize any interference with the use of
the Property by Settling Respondent when DTSC undertakes such
entry and response. In the event the Settling Respondent becomes
aware of any action or occurrence which causes or threatens a
Release (within the meaning of RCRA section 3008 (h)) of
hazardous wastes (within the meaning of Health and Safety Code
section 25117), hazardous substances, pollutants or contaminants
at or from the Site that constitutes an emergency situation or
may present an immediate threat to public health or welfare or
the environment,' Settling Respondent shall immediately tale all
appropriate action to prevent, abate, or minimize such Release or
-- threat of Release, and shall, in addition to complying with any
applicable notification requirements under the Health and Safety
Code, or any other law, immediately notify DTSC of such Release
or threatened Release.
VIII. CERTIFICATION
8. By entering into this Agreement, the Settling
Respondent certifies that to the best of its knowledge and belief
it has never owned Parcel 1 or Parcel 2 prior to the Effective
Date of this Agreement. If DTSC determines, within its sole
discretion, that information provided by the Settling Respondent
is not materially accurate and complete, the Covenant Not to Sue
in Section 5.1 of the Agreement shall be null and void and DTSC
reserves all rights it may otherwise have against Settling
Respondent.
IX. GENERAL PROVISIONS
9.1. Site Access. Commencing upon the date that it
acquires title to the Property, and thereafter, Settling
Respondent, agrees to provide to EPA and DTSC, their authorized
officers, employees, contractors, consultants, representatives,
and all other persons, including but not limited to BKK,
i
performing response actions, remedial activities , or any other
17
ATTACHMENT NO. 1
FIRST AMENDMENT TO AGREEMENT OF PURCHASE AND SALE
AND JOINT ESCROW INSTRUCTIONS
(City of West Covina / Singpoli BD Capital Group, LLC)
This First Amendment to the Agreement of Purchase and Sale and Joint Escrow
Instructions ("First Amendment"), dated for reference purposes as July 21, 2020 is
entered into by and between Singpoli BD Capital Group, LLC ("Buyer"), and The City
of West Covina ("Seller").
Recitals
A. On August 1, 2019 Buyer and Seller entered into an Agreement of
Purchase and Sale And Joint Escrow Instructions (the "Purchase Agreement")
concerning the purchase and sale of certain real property in the City of West Covina,
County of Los Angeles, State of California, commonly known as Assessor's Parcel
Numbers 8472-001-919, 8735-001-920, 8735-001-931, 8735-002-906, 8735-002-909,
and 8735-002-910, and as further identified in the Purchase Agreement as (the
"Property").
B. Buyer and Seller desire to amend the Purchase Agreement pursuant to the
provisions of this First Amendment.
NOW, THEREFORE, in consideration of the foregoing recitals, and the mutual
covenants contained herein, the parties agree as follows:
Agreement
1. Definitions. Except as otherwise provided herein, all capitalized terms set
forth in this First Amendment shall be defined as set forth in the Purchase Agreement.
2. Section 4(b) of the Agreement is hereby amended to read as follows:
Close of Escrow. For purposes of this Agreement, the "Closing" shall be
defined as the consummation of the transaction contemplated by this
Agreement and "Close of Escrow" shall be defined as the date that a grant
deed ("Grant Deed"), the form of which is attached hereto as Exhibit A to this
First Amendment and supersedes Exhibit B of the Purchase Agreement,
conveying the Property to Buyer, is recorded in the Official Records. This
Escrow shall close on or before the date which is ten (10) days after the
satisfaction, or Seller's waiver of, the conditions set forth in Section 7(b)
below, and the satisfaction, or Buyer's waiver of, the last of the conditions to
closing set forth in Sections 7(a)(i) - 7(a)(vi) below, or no later than October
31, 2020.
3. Extension of Buyer's Contingency Period. Buyer's Contingency period as
described in Paragraph 7(a)(i) of the Purchase Agreement shall be extended
to October 1, 2020 to allow Buyer to finalize their due diligence.
4. Section 7(a)(ii)(A) of the Agreement is hereby amended to read as follows:
Page 1 of 9 of First Amendment to Purchase Agreement
activity taken pursuant to or authorized by CERCLA, RCRA or the
Health and Safety Code under EPA or State oversight, an
irrevocable right of access at all reasonable times to the
Property, Lot 5 and to any other property to which access is
required for the implementation of such activities at.the Site,
to the extent access to such other property is controlled by the
Settling Respondent, for the purposes of performing and
overseeing such activities at the Site under federal or State
law. To the extent controlled by Settling Respondent, Settling
Respondent shall also ensure that assignees, successors in
interest, lessees, and sub -lessees of the Property shall provide
the same access and cooperation and shall comply with the
Institutional Controls. Settling Respondent Shall grant access to
parties conducting response activities pursuant to this Agreement
or for activities deemed necessary by DTSC to complete required
.response activities.
Nothing in this section is intended or shall be construed to
limit in any way the right of entry or inspection that DTSC or
any other agency may otherwise have by operation of any law.
DTSC and its authorized representatives shall have the authority
to enter and move freely about all' -property at the Site at all
reasonable times for purposes including, but not limited to:
inspecting records, operating logs, sampling and analytic data,
and contracts relating to this Site; reviewing the progress of
Settling Respondent in carrying out the terms of this Agreement;
conducting such tests as DTSC may deem necessary; and verifying
the data submitted to DTSC by Settling Respondent. DTSC agrees,
consistent with its responsibilities under applicable law, to use
reasonable efforts to minimize any interference with use of the
Property by Settling Respondent when DTSC undertakes such
activities. Notwithstanding any provision of this Agreement, DTSC
retains all of its access authorities and rights, including
enforcement authorities related thereto, under CERCLA, RCRA, the
Health and Safety Code and any other applicable statute or
regulation, including any amendments thereto.
9.2. Site Access/ Notice to Successors in Interest. The
Settling Respondent shall ensure that a copy of this Agreement is
provided to any current lessee or sub -lessee on the Property as
of the Effective Date of this Agreement and shall'ensure that any
subsequent leases, subleases, assignments or transfers of the
Property or an interest in the Property made by Settling
Respondent are consistent with the Institutional Controls, and
this Agreement, including but not limited to this Section 9.2,
Section 9.1 (Site Access), Section VII (Due Care/Cooperation)and
Section 9.25 (Transfer). However, it is understood and agreed by
the parties that only Settling Respondent City of West Covina
remains responsible for performance of the work in accordance
_l
with Section 4.1 (Agreement), Section 4.2 (Payment), Section 4.3
18
f )
(Work to be Performed)and Exhibit 10 (Site Funds Escrow
Agreement).
9.3. Cost Recovery. Subject to Section 5.1 (DTSC's
Covenant Not to Sue), the Settling Respondent is liable for all
of DTSC's costs incurred in responding to the contamination at
the Site attributable to acts or omissions of the Settling
Respondent, including costs of overseeing response work performed
by the Settling Respondent for matters addressed by this
Agreement, except for work Settling Respondent City of West
Covina may perform pursuant to Section 4.3 (Work to Be Performed)
of this Agreement, and costs incurred by DTSC in association with
preparation of this Agreement. Cost recovery may be pursued by
DTSC under CERCLA, Health and Safety Code Section 25360, or any
other applicable State or federal statute or common law. 'The
State of California reserves the right to bring an action against
Settling Respondent under CERCLA, Health and Safety Code section
25360, or any other applicable State or federal statute or common
law, for recovery of all response and oversight costs incurred by
the State of California discussed in this Section 9.3 (Cost
Recovery).
9.4. Payment. All payments made by the Settling Respondent
pursuant to this Agreement shall be by a cashier's or certified
check made payable to the "Department of Toxic Substances
Control", and bearing on its face the project code for the site
(site # 300002) and the docket number of this Agreement.
Payments shall be sent to:
Department of Toxic Substances Control
Accounting/Cashier
400 P Street, 4th Floor '
P.O. Box 806
Sacramento, California- 95812-0806
A photocopy of the check shall be sent concurrently to DTSC'S
Project Manager/Regional Branch Chief.
9.4.1. If any bill is not paid by the Settling Respondent
within sixty (60) days after it is sent by DTSC, the Settling
Respondent may be deemed to be in material default of this
Agreement.
9.5. Project Coordinator. If the Settling Respondent City
of West Covina implements the Final Workplan pursuant to Section
4.3 (Work to Be Performed), the work shall be under the direction
and supervision of a qualified projectcoordinator, with
expertise in hazardous substance site cleanup. The Settling
Respondent shall submit to DTSC the name, address and resume of
r
the coordinator. The Settling Respondent shall promptly notify
19
DTSC of any change in the identity of the Project Coordinator.
All engineering and geological work shall be conducted in
conformance with applicable state law, including but not limited
to, Business and Professions Code sections 6735 and 7835.
9.6. Notices and Submissions. All notices, documents and
communications required to be given under this Agreement, unless
otherwise specified herein, shall be sent to the respective
parties at the following addresses in a manner that produces a
record of the sending of the notice, document or communication
such as certified mail, overnight delivery service, facsimile
transmission or courier hand delivery service:
All notices to Settling Respondent shall be sent to:
Steve Samaniego
Environmental Management Director
City of West Covina
1444 W. Garvey Avenue
West Covina, California 91793
with a copy to:
Colin Lennard, Esq.
Fulbright & Jaworski L.L.P.
865 South Figueroa Street
29th Floor
Los Angeles, California 90017
All notices to DTSC shall be sent to:
Jose Kou
Branch Chief
Department of Toxic Substances Control
Southern California Permitting Branch
1011 North Grandview Avenue
Glendale, California 91201
Phil Chandler
Supervising Engineering Geologist
Department of Toxic Substances Control
Southern California Permitting Branch
1011 North Grandview Avenue
Glendale, California 91201
20
with a copy to:
Marilee Hanson
Senior Staff Counsel
Department of Toxic Substances Control
1001 "1' Street, 23rd Floor
Sacramento, California 95814
9.7. Communications. All approvals and decisions of DTSC
made regarding submittals and notifications will be communicated
to Settling Respondent in writing by the Site Mitigation Branch
Chief, Department of Toxic Substances Control, the Permitting
Branch Chief or his/her respective designee. No informal advice,
guidance, suggestions or comments by DTSC regarding reports,
plans, specifications, schedules or any other writings by
Settling Respondent shall be construed to relieve Settling
Respondent of the obligation to obtain such formal approvals as
may be required.
9.8. DTSC Review and Approval. (a) If DTSC determines that
any report, plan, schedule or other document submitted for
appr(-al pursuant to of this Agreement fails to. comply with this
Agreement or fails to protect public health or safety or the
environment, DTSC may:
(1). Modify the document as deemed necessary and approve the
document as modified; or
(2) Return comments to Settling Respondent with recommended
changes and a date by which Settling Respondent(s) must
submit to DTSC a revised document incorporating the
recommended changes.
(b) Any modifications, comments or other directive issued
pursuant to (a) above, are incorporated into this Agreement.
Any noncompliance with these modifications or directives
shall be deemed a failure or refusal to comply with this
Agreement.
9.9.� Compliance with Applicable Laws. Settling Respondent
shall carry out this Agreement in compliance with all applicable
State, local, and federal laws, regulations and requirements
including, but not limited to, requirements to obtain permits and
to assure worker safety.
9.10. Sampling, Data and Document Availability. Settling
Respondent shall permit DTSC and its authorized representatives
to inspect and copy all sampling, testing, monitoring or other
data generated by Settling Respondent or on Settling Respondent's
21
behalf in any way pertaining to work undertaken pursuant to
Sections 4.3 (Work to Be Performed) and VII. (Due
Care/Cooperation) of this Agreement. Settling Respondent shall
submit all such data upon the request of DTSC. Copies shall be
provided within ten (10) days of receipt of DTSC's written
request. Settling Respondent shall inform DTSC at least ten (10)
days in advance of all field sampling under Sections 4.3 (Work to
Be Performed) and VII. (Due Care/Cooperation) of this Agreement,
and shall allow DTSC and its authorized representatives to take
duplicates of any samples collected by Settling Respondent
pursuant to Section 4.3 (Work to Be Performed) and VII. (Due
Care/Cooperation) of this Agreement. Settling Respondent shall
maintain a central depository of the data, reports, and other
documents prepared pursuant to Section 4.3 (Work to Be Performed)
and VII. (Due Care/Cooperation) of this Agreement. It is
understood and agreed by the parties that only Settling
Respondent City of West Covina shall remain responsible for
performance of the work to be performed in accordance with
Section 4.3 (Work to Be Performed).
9.11. Document Retention. All data, reports and other
Documents shall be preserved by Settling Respondent for a minimum
of ten (10) years after the conclusion of all activities under
this Agreement to the satisfaction of DTSC. If DTSC requests
that some or all of these documents be preserved for a longer
period of time, Settling Respondent shall either comply with that
request or deliver the documents to DTSC,.or permit DTSC to copy
the documents prior to destruction. Settling Respondent shall
notify DTSC in writing, at least six (6) months prior to
destroying any documents prepared pursuant to this Agreement and
shall provide DTSC with an opportunity to copy any documents at
the expense of DTSC. .
9.12. Government Liabilities. The State of California
shall not be liable for any injuries or damages to persons or
property resulting from acts or omissions by Settling Respondent,
or related parties specified in Section 9.24, (Parties Bound), in
carrying out activities pursuant to this Agreement, nor shall the
State of California be held as a party to any contract entered
into by Settling Respondent or its agents in carrying out
activities pursuant to this Agreement.
9.13. Additional Actions. By entering into this Agreement,
DTSC does not waive the right to take any further actions
authorized by law.
9.14. Extension Requests. If Settling Respondent is
unable to perform any activity or submit any document within the
time required under this Agreement, Settling Respondent may,
prior to expiration of the time, request an extension of the time
22
in writing. The extension request shall include a justification
for the delay. All such requests shall be in advance of the date
on which the activity or document is due.
9.15. Extension Approvals. If DTSC determines that good
cause exists for an extension, it will grant the request and
specify a new schedule in writing. Settling Respondent shall
comply with the new schedule incorporated in this Agreement.
9.16. Severability. The requirements of this Agreement are
severable, and Settling Respondent shall comply with each and
every provision hereof, notwithstanding the effectiveness of any
other provision.
9.17. Incorporation of Plans, Schedules and Reports. All
plans, schedules, reports, specifications and other documents
that are submitted by Settling Respondent pursuant to this
Agreement are incorporated in this Agreement upon DTSC's approval
or as modified pursuant to Section 9.8, (DTSC Review and
Approval), and shall be implemented by Settling Respondent. Any
noncompliance with the documents incorporated in this Agreement,
shall be deemed a failure or refusal to comply with this
Agreement.
9.18. Modifications. This Agreement may be amended in
writing by mutual agreement of DTSC and Settling Respondent. Any
amendment to this Agreement shall be effective upon the date the
modification is signed by DTSC and shall be deemed incorporated
in this Agreement.
9.19. Time Periods. Unless otherwise specified, time
periods begin from the Effective Date of this Agreement and
"days" means calendar days.
9.20. Effective Date. The Effective Date of this Agreement
shall be the date upon which DTSC issues written notice to
Settling Respondent that DTSC has fully executed the Agreement
after review and response to public comments received.
9.21. Counterparts. This Agreement may be executed and
delivered in any number of counterparts, each of which when
executed and delivered shall be deemed to be an original, but
such counterparts shall together constitute one and the same
document.,
9.22. Third Party Actions. In the event that the Settling
Respondent is a party to any suit or claim for damages or
contribution relating to the Site to which DTSC is not a party,
the Settling Respondent shall notify DTSC in writing within ten
(10) days after service of the complaint in the third -party
23
action. Settling Respondent shall pay all costs incurred by DTSC
relating to such third -party actions, relating to this Agreement
in whole or in part, including but not limited to responding to
subpoenas.
9.23. Governing Law. This Agreement shall be construed and
governed by the laws of the State of California.
9.24. Parties Bound.
(a) This Agreement shall apply to and be binding upon:
(1) DTSC, and upon any successor agency of the State of
California that may have responsibility for and
jurisdiction over the subject matter of this
Agreement; and
(2) the Settling Respondent, its successors, officers,
directors, appointed and elected officials, agents, and
employees.
(b) DTSC's C-venant Not to Sue in Section 5.1 and
Contribution Protection in Section VI shall apply to Settling
Respondent and its successors, officers, directors, appointed and
elected officials, agents, and employees to the extent that the
alleged liability of the successor, officer, director, appointed
and elected official, agent and employee is based on its status
and in its capacity as an officer, director, appointed and
elected official, agents, or employee of Settling Respondent;. and
not to the extent that the alleged liability arose independently
of the alleged liability of the Settling Respondent.
(c) Each signatory of a party to this Agreement represents
that he or she is fully authorized to enter into the terms and
conditions of this Agreement and to legally bind such party.
9.25. Transfer. (a) Notwithstanding any other provisions
of this Agreement, all of the rights, benefits and obligations
conferred upon Settling Respondent under this Agreement may be
assigned or transferred to any person with prior written consent
of DTSC in its sole discretion.
(b) Transferees, assignees, tenants and sub -tenants shall
pay costs incurred by DTSC to review any requests for consent to
assign or transfer benefits conferred by this Agreement.
(c) In the event of an assignment or transfer of the
Property or an assignment or transfer of an interest in the
Property, the assignor or transferor shall continue to be bound
by all the terms and conditions, and subject to all the benefits,
24
i
assignment or transfer, the assignee/transferee submits an
affidavit and supporting documentation demonstrating to DTSC's
reasonable satisfaction the truth of the preceding clauses (2)
through (6) in this paragraph(d) of Section 9.25;(8) Settling
Respondent City of West Covina shall have fully performed its
obligations under paragraph (a) of Section 4.2 (Payment/ Escrow
Instructions) of this Agreement; and (9)DTSC shall not have
objected to the assignee/transferee's certification, affidavit
and supporting documentation. In the event that DTSC has not so
objected within thirty (30) days of its receipt of written notice
from the assignee/transferee, such assignment or transfer shall
be deemed approved. If at any time DTSC determines that an
assignee/transferee's certification, affidavit or supporting
documentation is materially inaccurate or incomplete, the
Agreement and Covenant Not to Sue shall be null and void with
respect to such assignee/transferee, and the State of California
reserves all rights it may have against such transferee.
(e) Settling Respondent may lease the Property or any
portion thereof to tenants who in turn may lease to sub -tenants.
Any prospective tenants or sub -tenants desiring to obtain the
prior written consent of DTSC with respect to acquiring rights,
benefits and obligations conferred upon Settling Respondent under
this Agreement shall submit a Certification of Compliance with
Agreement and Covenant Not to Sue (Tenant) in the form of the
model certification attached hereto as Exhibit 12. No tenant or
sub -tenant shall.have any right hereunder (including any right
under the Covenant Not to Sue set forth in Section 5.1) unless:
(1) at least 30 days before the inception of such tenancy or sub-
tenancy, the tenant or sub -tenant submits a Certification of
Compliance with Agreement and Covenant Not to Sue (Tenant) in the
form of the model certification attached hereto as Exhibit 12;
(2) the tenant or sub -tenant shall be financially capable of
performing all the obligations referenced in such Certification;
(3) the tenant or sub -tenant's use of the Property shall not
result in a release or threat of release of any hazardous
substance; (4) the tenant or sub -tenant is not liable under
CERCLA, the Health and Safety Code or any other law for the
Existing Contamination; (5) the tenant or sub -tenant's use of the
Property will not cause or contribute to the migration or release
of any Existing Contamination or to any threat to human health or
the environment caused by any such release or threat of release;
(6) the tenant or sub -tenant agrees to pay costs incurred by DTSC
to review the request for consent to assign or transfer benefits
conferred'by this Agreement; (7) at least 30 days before the
inception of such tenancy, the tenant or sub -tenant submits an
affidavit and supporting documentation demonstrating to DTSC's
reasonable satisfaction the truth of the preceding clauses (2)
through (6) in this paragraph (e) of Section 9.25; (8) Settling
Respondent City of West Covina shall have fully performed its
26
of this Agreement except as DTSC and the assignor or transferor
otherwise agree and modify this Agreement, in writing,
accordingly. Moreover, prior to any assignment or transfer of the
Property, the assignee or transferee must consent in writing to
be bound by the terms of this Agreement including but not limited
to the certification requirement in Section VIII of this
Agreement in order for the Covenant Not to Sue in Section 5.1 to
be available to the party. The Covenant Not to Sue in Section
5.1 shall not be effective with respect to any assignees or
transferees who fail to provide such written consent to DTSC.
However, notwithstanding anything to the contrary contained
herein, it is understood and agreed by the parties that Settling
Respondent City of West Covina shall remain responsible for
performance of the work to be performed in accordance with
Section 4.1 (Agreement), Section 4.2 (Payment), Section 4.3 (Work
to Be Performed) and Exhibit 10 (Site Funds Escrow Agreement) of
this Agreement and that no subsequent assignee, transferee,
lessee or sub -lessee shall be obligated or bound by the terms of
the Agreement with respect to implement such work or shall be
required to demonstrate that it is financially capable of
performing such work in order to obtain DTSC's prior written
consent to the assignment, trancxer,. lease or sublease in
accordance with paragraphs (d) or (e) below.
~ (d) Any person desiring to obtain the prior written
consent of DTSC with respect to the assignment or transfer of all
or any portion of the rights, benefits and obligations conferred
upon Settling Respondent under this Agreement shall submit a
Certification of Compliance with Agreement and Covenant Not to:
Sue (Assignees/Transferee) in the form of the model certification
attached hereto as Exhibit 11. No transferee or assignee of.all
or any portion of the Property shall have any right hereunder
(including any right under the Covenant Not to Sue set forth in
Section 5.1) unless: (1) at least 30 days before such assignment
or transfer, the transferee submits a Certification of Compliance
with Agreement and Covenant Not to Sue (Assignee/Transferee) in
the form of the model certification attached hereto as Exhibit
11; (2) the assignee/transferee shall be financially capable of
performing all the obligations referenced in such Certification;
(3) the assignee/transferee is not liable under CERCLA,-the
Health and Safety Code or any other law for the Existing
Contamination; (4) the assignee/transferee's use of the Property
will not result in a release or threat of release of any
hazardous substance; (5) the assignee/transferee's use of the
Property will not cause or contribute to the migration or release
of any Existing Contamination or to any threat to human health or
the environment caused by any such release or threat of release;'
(6) the assignee/transferee agrees to pay costs incurred by DTSC
to review the request for consent to assign or transfer benefits
conferred by this Agreement; (7) at least 30 days before such
96,
obligations under paragraph (a) of Section 4.2 of this Agreement
(Payment/Escrow Instructions); and (9) DTSC shall not have
objected to the tenant or sub -tenant's certification, affidavit
and supporting documentation. In the event that DTSC has not so
objected within thirty (30) days of its receipt of written notice
from the tenant or sub -tenant,, such tenant or sub -tenant shall
have the benefit of the Covenant Not to Sue and Contribution
Protection with respect to the leased property from the inception
of such tenancy. If at any time DTSC determines that a tenant or
a sub -tenant's certification, affidavit or supporting
documentation is materially inaccurate or incomplete, the
Agreement and Covenant Not to Sue shall be null and void with
respect to such tenant or sub -tenant, and the State of California
reserves all rights it may have.against such tenant or sub-
tenant.
9.26. Representative Authority. Each undersigned
.representative of the Parties to this Agreement certifies that
she or he is fully authorized to enter into the terms and
conditions of this Agreement and to execute and legally bind the
Parties to this Agreement.
9.27. Disclaimer. This Agreement in no way constitutes a
finding by DTSC as to the risks to human health and the
environment that may be posed by contamination at the Property or
the Site nor constitutes any representation by DTSC that the
Property or the Site is fit for any particular, purpose.
9.28. Exhibits All exhibits attached to this Agreement.are
incorporated herein by this reference.
X., NOTICE OF SETTLEMENT
.10. This Agreement shall be subject to a 30-day comment
period, after which DTSC may modify or withdraw its consent to
this Agreement if comments received disclose facts or
considerations that indicate that this Agreement is
inappropriate, improper or inadequate. Settling Respondent shall
prepare the notice for the 30-day comment period, with DTSC
approval of all aspects of the notice. The notice shall require
that all comments be forwarded simultaneously to Settling
Respondent and DTSC.
27
(A) Buyer shall have until the expiration of the General Contingency Period
(the "Title Review Period") in which to give Seller and Escrow Holder written
notice of its approval of the condition of title to the Property ("Buyer's Title
Notice") based on (1) a standard preliminary report from the Title Company
with respect to the Land, together with complete and legible copies of the
underlying documents relating to the Schedule B exceptions set forth in such
report, and (11) any survey to be conducted on behalf of Buyer at Buyer's sole
cost and expense (collectively, the "Report"). The failure of Buyer to give
Buyer's Title Notice on or before the end of the General Contingency Period
shall be deemed to constitute Buyer's approval of the condition of the title to
the Property. If Buyer delivers written notice to Seller of non -satisfaction prior
to the expiration of the General Contingency period, then (1) this Agreement
and the Escrow created pursuant hereto shall terminate and be of no further
force or effect, (2) Escrow Holder shall return to Buyer the Deposit and all
interest accrued thereon, and (3) Buyer shall return to Seller all Documents
and Materials and Supplemental Information previously delivered to Buyer by
Seller.
5. Section 7(b) of the Agreement is hereby amended to delete conditions to
closing for the benefit of seller in subparts 7(bl( O, 7(b)(iv) and 7(b)(v).
6. A new section 14(d) is added to read as follows:
Buyer acknowledges and confirms Notice of Environmental Restrictions as
set forth below and in the form Grant Deed, attached and incorporated by this
reference to this First Amendment as Exhibit A:
"The property (or premises) described herein is adjacent to property that
contains hazardous waste and is subject to an environmental restriction and
covenant to restrict use which, among other things, prohibits the following
uses:
(1) A residence, including any mobile home or factory built housing
constructed or installed for use as permanently occupied human habitation;
(2) A hospital for humans;
(3) A school for persons under age 21;
(4) A day care center for children;
(5) Any permanently occupied human habitation; or
(6) A park or playground, provided that a golf course shall not be considered
a park or playground.
The environmental restriction and covenant to restrict use is in favor of the
City of West Covina, the Department of Toxic Substances Control, and the
U.S. Environmental Protection Agency, as a third party beneficiary. This
statement is not a declaration that a hazard exists."
7. A new Section 14(e) is added to read as follows:
Page 2 of 9 of First Amendment to Purchase Agreement
XI_ EXHIBITS
11.1 Exhibit 1 shall mean the map depicting the Site.
11.2 Exhibit 2 shall mean the Institutional Controls
recorded with the Recorder's Office of Los Angeles County,
California on May 29, 2001 applicable to the Property (i.e.,
Parcels 1 and 2).
11.3 Exhibit 3 shall mean the description of Lot 5.
11.4 Exhibit 4 shall mean the description of Parcel 1 of
the Property.
11.5 Exhibit 5 shall mean the description of Parcel 2 of
the Property.
11.6 Exhibit 6 shall mean the description of Parcel 3 of
the Property.
11.7 Exhibit 7 shall mean the Purchase Agreement and all
its amendments, including the Supplemental Escrow Instructions.
11.8 Exhibit 8 shall mean the form of the Security
Agreement to be. entered into between EPA and BKK.
11.9 Exhibit 9 shall mean the form of the Security
Agreement to be entered into between DTSC and BKK.
11.10 Exhibit 10 shall mean the Site Funds Escrow
Agreement to be entered into by and between BKK, Settling
Respondent and Wells Fargo Bank.,
11.11 Exhibit 11 shall mean the Certification of
Compliance with Agreement and Covenant Not to Sue
(Assignee/Transferee) .
11.12 Exhibit 12 shall mean the Certification of
Compliance with Agreement and Covenant Not to Sue (Tenant).
28
IT IS SO AGREED:
THE CITY OF WEST COVINA, A MUNICIPAL CORPORATION
I3y:-
9-t-ev er, rt /Datle
Mayor
APPROVED AS TO FORM:
FULIBRIGHT & JAWORSKI L,.-L.P-,, Special Counsel
BY:
Colin Lennard, E4q. Date
ATTEST:
Janet Berry, CYY Clerk
IT IS SO AGREED:
STATE OF CALIFORNIA, ENVIRONMENTAL PROTECTION AGENCY
DEPARTMENT OF TOXIC SUBSTANCES CONTROL
BY:
Rick Moss Date
Division Chief
Department of Toxic Substances Control
29
IT IS SO AGREED:
THE CITY OF WEST COVINA, A MUNICIPAL CORPORATION
BY: 1 (j
St er ert Da e
May r
APPROVED AS TO FORM:-
FULBRIGHT & JAWORSKI L.L.P..�, Special Counsels
Colin Lennard, Esq_ Date
ATTEST:
Janet Berry, City Perk
IT IS SO AGREED:
STATE OF CALIFORNIA, ENVIRONMENTAL PROTECTION AGENCY
DEPARTMENT OF:TOXIC SUBSTANCES. CONTROL.
BY:
Rick Moss`` Date
Division Chief
Department of Toxic Substances Control
29
ATTACHMENT NO.2
FIRST AMENDMENT TO RIGHT OF ENTRY AND ACCESS AGREEMENT
This First Amendment to the Right of Entry and Access Agreement ("First Amendment"),
dated July 21, 2020 dated for reference purposes as July 21, 2020 is entered into by and
between the City of West Covina, California, ("City') and Singpoli BD Capital Group LLC,
("Developer") (the "Access Agreement").
Recitals
A On July 16, 2019 Developer and City entered into a Right of Entry and Access
Agreement concerning approximately 134 acres, consisting of seven (7) individual parcels
(Assessor's Parcel Numbers8472-001-919, 8735-001-920, 8735-001-931, 8735-002-906,
8735-002-909, and 8735-002-910) and an adjacent 85 acres the City has under a License
Agreement (Assessor's Parcel Number 8735-022-018). ,
B. City and Developer have agreed that Developer desires to enter upon and gain
temporary access to the City Property and License Property (the "Development Area") to
inspect them and perform certain due diligence activities in connection with the negotiation of
the proposed Agreement of Purchase and Sale and Joint Escrow Instructions.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants
contained therein and in the Agreement, the Parties agree that the Agreement shall be
amended as follows:
1. Section 2, "Conditions of the Inspections" shall be amended to read as follows:
b. Developer shall give the City and DTSC at least forty-eight (48) hours' notice via
telephone or electronic mail prior to starting an Inspections on the Development Area.
Developer shall give BKK Agents at least forty-eight (48) hours' notice via electronic mail prior to
accessing the site. Developer shall not excavate any soils on Parcel 3.
e. The following sentence is added to the subsection: Developer shall not conduct
any Intrusive Inspections on the City Property without the prior consent of DTSC.
2. Section 3. "Term." shall be amended to read as follows:
Term. The term of this Agreement shall commence on the Effective Date and shall
continue thereafter until the Inspections have been completed to the reasonable satisfaction of
Developer, but in no event longer than the term of the Agreement of Purchase and Sale and
Joint Escrow Instructions and amendments thereto.
3. Section 4, "Restoration Obligations," is amended to add the following sentence:
"Developer shall promptly notify DTSC of any discovery by it or its Agents of any damaged
area or hazardous or toxic materials discovered on the Development Area during the
Inspections(s) provided for herein.
4. Section 5, "Assumption of Risk and Releases," is amended to provide that DTSC, its
officials, officers, agents, employees and representatives also are released and shall not be
liable in any manner for injury to or death of Developer or its Releasees arising from the
Inspection,
5. Section 6., "Indemnification" is revised to provide include DTSC and its officials,
officers, agents, employees and representatives.
6. Section 7, 'Insurance" is amended to provide that DTSC and its officials, officers,
agents, employees and representatives shall be additional insureds.
IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment as of the dates set forth below.
CITY: DEVELOPER:
City of West Covina Singpoli BD Capital Group, LLC
IV
By:
By:
David N. Carmany, City Manager Kin Hui, Manager
Date: Date:
Attest:
By:
Lisa Sherrick, Assistant City Clerk
Approved as to form:
JONES & MAYER
By:
Thomas P. Duarte, City Attorney
Buyer acknowledges and confirms "Agreement and Covenant Not To Sue the
City of West Covina" entered into by the State of California, California
Environmental Protection Agency, Department of Toxic Substances Control
(DTSC) and the City of West Covina executed May 27, 2003, attached and
incorporated by this reference to this First Amendment as Exhibit B, which
includes the following provisions:
"9.25. Transfer. (a) Notwithstanding any other, provisions of this Agreement,
all of the rights, benefits and obligations conferred upon Settling Respondent
under this Agreement may be assigned or transferred to any person with prior
written consent of DTSC in its sole discretion.
(b) Transferees, assignees, tenants and sub -tenants shall pay costs incurred
by DTSC to review any requests for consent to assign or transfer benefits
conferred by this Agreement.
(c) In the event of an assignment or transfer of the Property or an
assignment or transfer of an interest in the Property, the assignor or transfer
shall continue to be bound by all the terms and conditions, and subject to all
the benefits, of this Agreement except as DTSC and the assignor or
transferor otherwise agree and modify this Agreement, in writing, accordingly.
Moreover, prior to any assignment or transfer of the Property, the assignee or
transferee must consent in writing to be bound by the terms of this
Agreement including but not limited to the certification requirement in Section
VIII of this Agreement in order for the Covenant Not to Sue in Section 5.1 to
be available to the party. The Covenant Not to Sue in Section 5.1 shall not be
effective with respect to any assignees or transferees who fail to provide such
written consent to DTSC. However, notwithstanding anything to the contrary
contained herein, it is understood and agreed by the parties that Settling
Respondent City of West Covina shall remain responsible for performance of
the work to be performed in accordance with Section 4.1 (Agreement),
Section 4.2 (Payment), Section 4.3 (Work to Be Performed) and Exhibit 10
(Site Funds Escrow Agreement) of this Agreement and that no subsequent
assignee, transferee, lessee or sub -lessee shall be obligated or bound by the
terms of the Agreement with respect to implement such work or shall be
required to demonstrate that it is financially capable of performing such work
in order to obtain DTSC's prior written consent to the assignment, transfer,
lease or sublease in accordance with paragraphs (d) or (a) below.
(d) Any person desiring to obtain the prior written consent of DTSC with
respect to the assignment or transfer of all or any portion of the rights,
benefits and obligations conferred upon Settling Respondent under this
Agreement shall submit a Certification of Compliance with Agreement and
Covenant Not to- Sue (Assignees/Transferee) in the form of the model
certification attached hereto as Exhibit 11. No transferee or assignee of all or
any portion of the Property shall have any right hereunder (including any right
under the Covenant Not to Sue set forth in Section 5.1) unless: (1) at least 30
days before such assignment or transfer, the transferee submits a
Certification of Compliance with Agreement and Covenant Not to Sue
(Assignee/Transferee) in the form of the model certification attached hereto
Page 3 of 9 of First Amendment to Purchase Agreement
as Exhibit 11; (2) the assignee/transferee shall be financially capable of
performing all the obligations referenced in such Certification; (3) the
assignee/transferee is not liable under CERCLA, -the Health and Safety
Code or any other law for the Existing Contamination; (4) the
assignee/transferee's use of the Property will not result in a release or threat
of release of any hazardous substance; (5) the assignee/transferee's use of
the Property will not cause or contribute to the migration or release of any
Existing Contamination or to any threat to human health or the environment
caused by any such release or threat of release; (6) the assignee/transferee
agrees to pay costs incurred by DTSC to review the request for consent to
assign or transfer benefits conferred by this Agreement; (7) at least 30 days
before such assignment or transfer, the assignee/transferee submits an
affidavit and supporting documentation demonstrating to DTSC's reasonable
satisfaction the truth of the preceding clauses (2) through (6) in this
paragraph (d) of Section 9.25; (8) Settling Respondent City of West Covina
shall have fully performed its obligations under paragraph (a) of Section 4.2
(Payment/ Escrow Instructions) of this Agreement; and (9)DTSC shall not
have objected to the assignee/transferee's certification, affidavit and
supporting documentation. In the event that DTSC has not so objected within
thirty (30) days of its receipt of written notice from the assignee/transferee,
such assignment or transfer shall be deemed approved. If at any time DTSC
determines that an - assignee/transferee's certification, affidavit or supporting
documentation is materially inaccurate or incomplete, the Agreement and
Covenant Not to Sue shall be null and void with respect to such
assignee/transferee, and the State of California reserves all rights it may
have against such transferee.
(e) Settling Respondent may lease the Property or any portion thereof to
tenants who in turn may lease to sub -tenants. Any prospective tenants or
sub -tenants desiring to obtain the prior written consent of DTSC with respect
to acquiring rights, benefits and obligations conferred upon Settling
Respondent under this Agreement shall submit a Certification of Compliance
with Agreement and Covenant Not to Sue (Tenant) in the form of the model
certification attached hereto as Exhibit 12. No tenant or sub -tenant shall have
any right hereunder (including any right under the Covenant Not to Sue set
forth in Section 5.1) unless: (1) at least 30 days before the inception of such
tenancy or sub- tenancy, the tenant or sub -tenant submits a Certification of
Compliance with Agreement and Covenant Not to Sue (Tenant) in the form of
the model certification attached hereto as Exhibit 12; (2) the tenant or sub-
tenant shall be financially capable of performing all the obligations referenced
in such Certification; (3) the tenant or sub -tenant's use of the Property shall
not result in a release or threat of release of any hazardous substance; (4)
the tenant or sub -tenant is not liable under CERCLA, the Health and Safety
Code or any other law for the Existing Contamination; (5) the tenant or sub -
tenant's use of the Property will not cause or contribute to the migration or
release of any Existing Contamination or to any threat to human health or the
environment caused by any such release or threat of release; (6) the tenant
or sub -tenant agrees to pay costs incurred by DTSC to review the request for
consent to assign or transfer benefits conferred by this Agreement; (7) at
least 30 days before the inception of such tenancy, the tenant or sub -tenant
Page 4 of 9 of First Amendment to Purchase Agreement
submits an affidavit and supporting documentation demonstrating to DTSC's
reasonable satisfaction the truth of the preceding clauses (2) through (6) in
this paragraph (e) of section 9.25; (8) Settling Respondent City of West
Covina shall have fully performed its obligations under paragraph (a) of
Section 4.2 of this Agreement (Payment/Escrow Instructions); and (9) DTSC
shall not have objected to the tenant or sub -tenant's certification, affidavit and
supporting documentation. In the event that DTSC has not so objected within
thirty (30) days of its receipt of written notice from the tenant or sub -tenant
such tenant or sub -tenant shall have the benefit of the Covenant Not to Sue
and Contribution Protection with respect to the leased property from the
inception of such tenancy. If at any time DTSC determines that a tenant or a
sub -tenant's certification, affidavit or supporting documentation is materially
inaccurate or incomplete, the Agreement and Covenant Not to Sue shall be
null and void with respect to such tenant or sub -tenant, and the State of
California reserves all rights it may have against such tenant or sub -tenant."
8. Section 16 of the Agreement is hereby amended to read as follows:
Non-refundable Consideration. The Deposit includes a sum equal to the
amount of Four Hundred Five Thousand Dollars ($405,000.00) which shall
become, upon the date of execution by both parties of this First Amendment,
"Non-refundable Consideration". Notwithstanding anything to the contrary in
this Agreement, the Non-refundable Consideration shall be non-refundable to
Buyer as consideration for the rights and options extended to Buyer under
this Agreement, including, without limitation, the right and options to terminate
the Agreement as provide herein. After the expiration of the General
Contingency Period, the Non-refundable Consideration portion of the Deposit
is non-refundable under all circumstances, but is applicable to, and shall be
credited by Escrow Holder against the Purchase Price.
9. Counterparts. This First Amendment may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which,
together, shall constitute one and the same instrument.
10. Facsimile Signatures. In order to expedite the transaction contemplated
herein, telecopied signatures may be used in place of original signatures on
this First Amendment, Seller and Purchaser intend to be bound by the
signatures on the telecopied document, are aware that the other party will
rely on the telecopied signatures, and hereby waive any defenses to the
enforcement of the terms of this First Amendment based on the use of a
facsimile signature.
11. Ratification. Buyer and Seller hereby agree that, except as provided in this
First Amendment, the Purchase Agreement is ratified, affirmed and remains
in full force and effect, and is incorporated herein by this reference.
12. Authority. Each of the undersigned represents and warrants that he or she is
duly authorized to execute and deliver this First Amendment and that such
execution is binding upon the entity for which he or she is executing this
document.
Page 5 of 9 of First Amendment to Purchase Agreement
IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment as of the dates set forth below.
SELLER: BUYER:
The City of West Covina Singpoli BD Capital Group, LLC
By:
By:
David N. Carmany, City Manager Kin Hui, Manager
Date: Date:
Attest:
By:
Lisa Sherrick, Assistant City Clerk
Approved as to form:
JONES & MAYER
By:
Print Name: Thomas P. Duarte
Title: City Attorney
Page 6 of 9 of First Amendment to Purchase Agreement
EXHIBIT A
FORM OF GRANT DEED
RECORDING REQUESTED BY:
WHEN RECORDED MAIL TO:
MAIL TAX STATEMENTS TO:
APN's: 8472-001-919, 8735-001-920, 8735-001-931, 8735-002-906, 8735-002-909, and
8735-002-910
SPACE ABOVE THIS LINE RESERVED FOR RECORDER'S USE
THE UNDERSIGNED GRANTOR DECLARES
THAT DOCUMENTARY TRANSFER TAX IS:
$ computed on the full value
of the interest or property conveyed.
GRANT DEED
For valuable consideration, receipt of which is hereby acknowledged, City of West
Covina, a California Municipal Corporation("Grantor") hereby grants to Singpoli BD
Capital Group, LLC, a California Limited Liability Company, the real property located in
the State of California, County of Orange, City of West Covina, described in Exhibit A
attached hereto (the "Property"), together with all Grantor's right, title and interest, of, in
and to all structures and improvements now located on the Property, subject to the
following:
Taxes and assessments, not delinquent.
2. All other covenants, conditions, restrictions, reservations, rights, rights of way,
easements, encumbrances, liens and title matters of record or visible from an inspection
or survey of the Property.
Statement of Notice of Environmental Restriction and Covenant:
"The property (or premises) described herein is adjacent to property that
contains hazardous waste and is subject to an environmental restriction and
covenant to restrict use which, among other things, prohibits the following
uses:
(1) A residence, including any mobile home or factory built housing
constructed or installed for use as permanently occupied human
habitation;
(2) A hospital for humans;
(3) A school for persons under age 21;
(4) A day care center for children;
Page 7 of 9 of First Amendment to Purchase Agreement