RESOLUTION NO. 2016-04
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION OF A
THIRD AMENDMENT TO AGREEMENT REGARDING ASSIGNMENT
AND ASSUMPTION OF PURCHASE AND SALE AGREEMENT BY
AND BETWEEN THE CITY OF VERNON AND FRUITLAND OWNER,
LLC FOR PROPERTY LOCATED AT 3200 FRUITLAND AVENUE
WHEREAS, on March 22, 2006, the City Council of the City of Vernon adopted Resolution No. 8995, as amended on May 3, 2006, April 7, 2015, and June 11, 2015, approving a Standard Offer, Agreement and Escrow Instructions and Addendum with Pechiney Cast Plate, Inc. ("Pechiney") for the purchase of property located at 3200 Fruitland Avenue (the "Property"); and
WHEREAS, on August 18, 2015, the City Council of the City of Vernon adopted Resolution No. 2015-57, as amended on August 21, 2015, and November 17, 2015, approving an Agreement regarding Assignment and Assumption of Purchase and Sale Agreement (the "Agreement") by and between the City of Vernon ("City") and Fruitland Owner, LLC ("COX") for property located at 3200 Fruitland Avenue to assign the City's right, title and interest in, to and under the Agreement to COX; and WHEREAS, the City and COX desire to enter into a Third
Amendment to the Agreement (the "Amendment") to amend certain provisions of the Agreement relating to the closing date and conditions of closing; and
WHEREAS, COX desires to assign their rights and obligations of the Agreement to CPF/COX Vernon, LLC; and
WHEREAS, the City Council of the City of Vernon desires to approve the Amendment and authorize the execution thereof.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF VERNON AS FOLLOWS:
SECTION 1: The City Council of the City of Vernon hereby finds and determines that the above recitals are true and correct.
SECTION 2: The City Council of the City of Vernon finds that this action is exempt under the California Environmental Quality Act (CEQA), in accordance with Section 15061 (b) (3), the general rule that CEQA only applies to projects that may have an effect on the environment.
SECTION 3: The City Council of the City of Vernon hereby approves and authorizes the execution of the Third Amendment to Agreement regarding Assignment and Assumption of Purchase and Sale Agreement with Fruitland Owner, LLC (the "Amendment"), in substantially the same form as the copy which is attached hereto as Exhibit A.
SECTION 4: The City Council of the City of Vernon hereby authorizes the Mayor or Mayor Pro-Tem to execute said Agreement for, and on behalf of, the City of Vernon and the City Clerk, or Deputy City Clerk, is hereby authorized to attest thereto.
SECTION 5: The City Council of the City of Vernon hereby instructs the City Administrator, or his designee, to take whatever actions are deemed necessary or desirable for the purpose of implementing and carrying out the purposes of this Resolution and the transactions herein approved or authorized, including but not limited to, any non-substantive changes to the Amendment attached herein.
SECTION 6: The City Council of the City of Vernon hereby directs the City Clerk, or the Deputy City Clerk, to send a fully executed Amendment to Fruitland Owner, LIC.
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SECTION 7: The City Clerk, or Deputy City Clerk, of the City of Vernon shall certify to the passage, approval and adoption of this resolution, and the City Clerk, or Deputy City Clerk, of the City of Vernon shall cause this resolution and the City Clerk's, or Deputy City Clerk's, certification to be entered in the File of Resolutions of the Council of this City.
APPROVED AND ADOPTED this 19th day of January, 2016.
w. Michael McCormick
Name:
Title: Mayor / Mayor Pro-Tem
ATTEST:
-
Maria E.'
City Clerk / Deputy City Clerk
APPROVED TO FORM:
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STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
Maria E. Ayala, city Clerk / Deputy City Clerk of the City of Vernon, do hereby certify that the foregoing Resolution, being Resolution No. 2016-04, was duly passed, approved and adopted by the City Council of the City of Vernon at a regular meeting of the City Council duly held on Tuesday, January 19, 2016, and thereafter was duly signed by the Mayor or Mayor Pro-Tem of the City of Vernon.
Executed this ZI day of January, 2016, at vernon, california.
Is Cala
Maria y Ayala
City Clerk / Deputy fity Clerki
(SEAL)
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EXHIBIT A
Third Amendment to
Agreement Regarding Assignment and Assumption of Purchase and Sale Agreement
THIS THIRD AMENDMENT TO AGREEMENT REGARDING ASSIGNMENT AND ASSUMPTION OF PURCHASE AND SALE AGREEMENT (this "Amendment") is made and entered into as of January 19, 2016 (the "Effective Date"), by and between the City of Vernon ("'City"), and Fruitland Owner LIC, a Delaware limited liability company ("COX"). City and COX are each referred to herein as a "Party" and are collectively referred to as the "Parties".
RECITALS
City, as buyer, and Pechiney Cast Plate, Inc., as seller ("Seller"), are parties to that certain Standard Offer, Agreement and Escrow Instructions for the Purchase of Real Estate dated as of March 20, 2006 ("Original Agreement"), with attached Addendum dated March 20, 2006 ("Addendum"), as amended by that certain First Amendment to the same dated as of June 15, 2006 ("First Amendment"), as further amended by that certain Second Amendment dated as of April 7, 2015 (the "Second Amendment"), as further amended by that certain Third Amendment dated as of June 11, 2015 (the "Third Amendment"). The Original Agreement as amended by the Addendum, the First Amendment, the Second Amendment and the Third Amendment shall hereinafter be referred to as the "Purchase Agreement".
B. Seller owns fee simple title to certain real property located in Vernon, California and described more particularly in the Purchase Agreement (together with the Buyer UP Land, (as referenced in Section 4.1 of the Second Amendment) the "Property").
C. Pursuant to the terms and conditions of the Purchase Agreement, City has agreed to buy, and Seller has agreed to sell to City, the Property.
D. Pursuant to the terms and conditions of that certain Agreement Regarding Assignment and Assumption of Purchase and Sale Agreement, dated as of August 4, 2015, executed by and between the City and COX, as amended by that certain Amendment to Agreement Regarding Assignment and Assumption of Purchase and Sale Agreement, dated as of August 21, 2015, as amended by that certain Second Amendment to Agreement Regarding Assignment and Assumption on Purchase and Sale Agreement, dated as of October 27, 2015 (the "Second Amendment to Assignment") (as amended, the "Assignment"), City has agreed to assign its right, title and interest in, to and under the Purchase Agreement to COX.
E. The Parties desire to further amend the Assignment as set forth herein.
F. All capitalized terms not otherwise defined herein shall have the meanings given to such terms in the Assignment.
AGREEMENT
For good and valuable consideration, the receipt of which is hereby acknowledged, COX and City hereby agree as follows:
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Amendments.
a. Closing. The first sentence of Section 9 of the Assignment (as amended by Section 1(b) of the Second Amendment to Assignment) is hereby amended in its entirety as follows: "The closing of the assignment of the Purchase Agreement contemplated by this Agreement ("Closing") shall occur on Thursday, February 18, 2016 (the "Closing Date"); provided that the parties may elect by mutual written agreement to close prior to February 18, 2016." Section 1(b) of the Second Amendment to Assignment is of no further force or effect. Without limitation thereto, neither party has a right to extend the Closing Date from and after the date hereof.
b. City's Conditions Precedent. Section 10 of the Assignment is hereby amended to add the following as Section 10.6 thereof: "10.6. On or prior to January 19, 2016, the City Council of the City of Vernon shall have approved the Third Amendment to this Agreement and such other matters as are related thereto as determined necessary in the discretion of City staff, and COX shall have obtained all internal approvals of the Third Amendment to this Agreement. City shall notify COX as to whether such approval by City Council was obtained on or prior to 5 p.m. Los Angeles time on January 19, 2016."
c. COX's Conditions Precedent. Section 11 of the Assignment is hereby amended to add the following as Section 11.6 thereof: "11.6. On or prior to January 19, 2016, the City Council of the City of Vernon shall have approved the Third Amendment to this Agreement and such other matters as are related thereto as determined necessary in the discretion of City staff, and COX shall have obtained all internal approvals of the Third Amendment to this Agreement. COX shall notify City as to whether such internal approvals were obtained on or prior to 5 p.m. Los Angeles time on January 19, 2016."
COX hereby acknowledges and agrees that all of COX's Conditions Precedent have been satisfied as of the date hereof, except for the conditions set forth in Section 11.1 (City's representations and warranties), Section 11.2 (Purchase Agreement in effect as of Closing), and Section 11.6 (approval of Third Amendment).
d. Failure of Condition Precedent under 10.6 or 11.6. If the City Council has not approved the Third Amendment, or if COX has not obtained all internal approvals of the Third Amendment, on or prior to January 19, 2016, then unless COX elects to waive such condition and proceed to Closing (by written notice from COX to City given no later than 5 p.m. Los Angeles time on January 21, 2016), the Assignment shall automatically terminate, in which case neither party shall have any further obligations thereunder or hereunder, except to the extent of any obligations which are stated to survive. If COX elects to waive such condition 2 WEST1266938325.5
of the Assignment (as added by the Second Amendment to Assignment) (i.e., approval of the Soil Management Plan by the California Department of Toxic Substances Control) was satisfied.
e. Extension Fee. Pursuant to Section 1(a)(iii) of the Second Amendment to Assignment, COX shall continue to pay on the first calendar day of each month until Closing (or the succeeding business day if the 1st day of the calendar month is not a business day the amount of $25,000.00 per month to the City as consideration for the Extension Fee payable by the City to Seller under the Purchase Agreement. Pursuant to Section 1(a)(iv) of the Second Amendment to Assignment, such amounts shall not be credited against the Purchase Price at Closing and are deemed fully earned and non-refundable upon payment to the City as independent consideration for the City's agreements set forth in the Second Amendment to Assignment and this Amendment.
Assignment. Pursuant to Section 15.7 of the Assignment, the City hereby consents to an assignment of COX's rights and obligations under the Assignment to CPF/COX Vernon, LLC, a Delaware limited liability company ("Assignee"), provided, however, no such assignment by COX shall relieve COX from its obligations under the Assignment, it being understood that upon any such assignment COX shall remain liable to the City for the performance of the obligations of COX under the Assignment. COX hereby represents and warrants to City that Assignee shall be as of the date of Closing at least 10% beneficially owned (whether directly or indirectly) by (i) CAM Fruitland Capital LLC, a Delaware limited liability company and an affiliate of Cohen Asset Management, Inc., a California corporation, (ii) Fruitland XC, LLC, a Delaware limited liability company and an affiliate of Xebec, LLC a California limited liability company, and/or (iii) 3200 Fruitland GAP, LLC, a Delaware limited liability company and affiliate of Oaktree Capital Management, LP, a Delaware limited partnership. g. Notice. The Assignment lacked a formal notice provision. It is agreed that from and after the date hereof, and/or with respect to any prior notices given, any notice or other communication required or desired to be given hereunder shall be in writing and shall be deemed to have been sufficiently given for all purposes if (a) delivered personally to the party to whom the same is directed, (b) sent by Federal Express or other national overnight courier, charges prepaid, or (c) sent by registered or certified mail, postage and charges prepaid, addressed to the party to whom the same is directed at the address of such party as set forth below:
City: City of Vernon
4305 Santa Fe Avenue
Vernon, CA 90058
Attn: Hema Patel, City Attorney
E: [email protected]
P: 323.826.1440
F: 323.826.1438
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With a copy to: DLA Piper LLP US
550 South Hope Street, Suite 2300
Los Angeles, CA 90071
Attn: Michael Hamilton, Esq.
E: [email protected]
P: 213.330.7736
F: 213.330.7536
Purchaser: CPF/COX Vernon, LLC
c/o Cohen Asset Management, Inc.
1900 Avenue of the Stars, Suite 500
Los Angeles, CA 90067
Attention: Mr. Bradley Cohen, President & CEO
E: [email protected]
P: 310.860.5460
F: 310.860.0599
With a copy to: Raines Feldman LLP
9720 Wilshire Blvd., Fifth Floor
Beverly Hills, CA 90212
E: [email protected]
P: 310.734.0401
F: 310.765.7731
Any notice which is served (i) personally shall be deemed to be given on the date on which the same is actually served, (ii) by Federal Express or other national Alerie sau is shite to red a pen on the are mine day
(iii) by mail shall be deemed to be given on the date two (2) business days after the same is deposited in a regularly maintained receptacle for the deposit of United States mail and (iv) by email on the date sent if prior to 5:00 p.m. pacific aliciative than prder dei hinde us of bie, sens the neide omar bead, 24 hours after the original email notice was sent and the same shall be deemed effective and timely for purposes herein as if given by such other means on the date of the original email. Any party may change its address for purposes of this Agreement by giving the other party notice thereof in the manner hereinabove provided for the giving of notices. Notices delivered by any attorney for either party are deemed effective. Notices previously given in accordance with the foregoing are hereby deemed to have been effective and neither party is aware of any notice having been given in a manner other than as provided.
Miscellaneous.
4 WEST 266938325.5
COX hereby confirms, and shall be estopped from claiming to the contrary, that to COX's knowledge, City is not in detault under the Assignment and no facts or circumstances exist which, upon the giving of notice, or passage of time, or both, would constitute a default by City. City hereby confirms, and shall be estopped from claiming to the contrary, that to City's knowledge, COX is not in default under the Assignment and no facts or circumstances exist which, upon the giving of notice, or passage of time, or both, would constitute a default by Cox.
Except to the extent expressly modified by this Amendment, the Assignment is ratified and remains in full force and effect. To the extent of any inconsistency between this Amendment and the Assignment, the terms and conditions of this Amendment shall control.
This Amendment may be executed in multiple counterparts, all of which, taken together, shall constitute one document. This Amendment shall be deemed effective against a Party upon receipt by the other Party (or its counsel) of a counterpart executed by facsimile or clectronic mail.
[Signature Pages Follow]
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COX:
FRUITLAND OWNER LLC,
a Delaware limited liability company
By: Fruitland JV LLC,
a Delaware limited liability company,
its Sole Member
By: Fruitland COX Venture LLC,
a Delaware limited liability company,
its Sole Member
By: CAM Fruitland Capital LLC,
a Delaware limited liability company,
its Sole Member
By: Dela vadimic is ly company,
its Sole Member
By: Name: Bradley S. Cohen
Title: President & CEO
[Signatures continue on next page]
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ESCROW AGENT:
ESCROW AGENT, by its execution below, hereby accepts (as of the date first above written) the foregoing Amendment and agrees to act as Escrow Agent under the Assignment in strict accordance with its terms.
FIRST AMERICAN TITLE INSURANCE
COMPANY
By:
Name:
Its:
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IN WITNESS WHEREOF, the Parties have caused their duly authorized representatives to execute this Amendment as of the Effective Date.
CITY:
City of Vernon
By Donate mada
Name: W. Michael McCormick
Title: Mayor
Maria E. Ayala, City Clerk
Approved as to form:
HOLA
ØŁXXXXXXXXX&KXXxxxXxxx
Hema Patel, City Attorney
[Signatures continue on next page]
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....
ESCROW AGREEMENT
February 2, 2016
Mai-Ly Marsh
AVP, Sr. National Title Coordinator/Closer
National Commercial Services
Commonwealth Land Title Company
388 S. Figueroa Street, Suite 2100
Los Angeles, CA 90017
[email protected]
Escrow No. 09170093 - MMarsh (Vernon)
Re: City of Vernon Added Facilities Agreement (as the same has been or may be amended, the "Facilities Agreement"), dated as of February 2, 2016, by and between RPlanet Earth Los Angeles, LLC, a Delaware limited liability company ("Customer") and the City of Vernon, a California municipal corporation ("City"), with respect to property located at 3200 Fruitland, Vernon, California (the "Property").
Agreement Regarding Assignment and Assumption of Purchase and Sale Agreement (as the same has been or may be amended, the "Assignment Agreement"), dated as of August 4, 2015, by and between City and Fruitland Owner LILC, a Delaware limited liability company ( "Owner").
A. Facilities Agreement
City and Customer have entered into the Facilities Agreement with respect to the construction of certain electric facilities at the Property. In accordance with the Facilities Agreement, Customer shall deliver to an escrow account established by City and Customer in immediately available funds the amounts required to be delivered by Customer pursuant to the Facilities Agreement, including the amount of Two Million Three Hundred Thousand Dollars ($2,300,000) as the Reserve Amount and any additional amounts as may be required under the Facilities Agreement for any Deficiency and/or for Added Facilities Installation Costs relating to Phase 2 and/or as otherwise required under the Facilities Agreement (collectively, together with any interest earned thereon, the "Reserve Funds"). Escrow Agent's wiring instructions are attached hereto as Exhibit A. You, hereinafter the "Escrow Agent", are to place the Reserve Funds in an interest bearing account and hold the Reserve Funds in escrow and deliver such Reserve Funds in accordance with these instructions. Initially capitalized terms used in this Section A without definition shall have the meaning set forth in the Facilities Agreement.
Pursuant to Section 19 of the Facilities Agreement, City will be entitled to use the Reserve Funds for purposes of paying the Added Facilities Installation Costs and Line Extension WEST 267544052.6
Costs. From time to time, City may by written notice to Escrow Agent (with a copy of each such notice provided to Customer by City) request a disbursement from the Escrow Agent in order to pay Added Facilities Installation Costs and/or Line Extension Costs. Escrow Agent shall, without further authorization or approval from anyone, disburse the requested amount to City within two (2) business days of receipt of written notice from the City stating that City is entitled to the requested amount pursuant to the Facilities Agreement. Upon completion of the installation of the Added Facilities and Line Extension and payment of all Added Facilities Installation Costs and Line Extension Costs, any balance of the Funds remaining with the Escrow Agent shall be released and refunded to Customer upon a joint written instruction of City and Customer. In the event Escrow Agent has not been provided the required instruction on or before that date which is the seventh (7th) anniversary of the date hereof, Escrow Agent shall deliver written notice of same to City and Customer, and City and Customer shall jointly instruct Escrow Agent as to distribution of such funds.
B. Assignment Agreement
Pursuant to Section 8 of the Assignment Agreement, concurrently with the delivery of the Purchase Price at Closing, Owner (or Customer on Owner's behalf) shall deliver to Escrow Agent an amount equal to One Million Two Hundred Fifty Thousand Dollars ($1,250,000) (together with any interest earned thereon, the "Financial Assurance Funds") as security for Owner's or Customer's anticipated electrical power usage at the Property. Escrow Agent shall place the Financial Assurance Funds in an interest bearing account and hold the Financial Assurance Funds in escrow and deliver such Financial Assurance Funds in accordance with these instructions. The investment shall be subject to Escrow Holder's receipt of its executed Interest Bearing Account Instructions and IRS Form W-9. Upon a joint and written instruction of City, Customer and Owner that Owner or Customer has achieved a Consumption Hurdle by the specified date applicable thereto as set forth in the Assignment Agreement, Escrow Agent shall disburse an amount equal to one-third (1/3) of the Financial Assurance Funds (i.e., $416,666.25, plus a pro rata portion of the interest accrued on the Financial Assurance Funds) to Customer within two (2) business days of receipt of written notice jointly executed by Owner, Customer and City stating that Customer is entitled to the requested amount pursuant to the Assignment Agreement. If a Consumption Hurdle is not achieved by the applicable date as set forth in the Assignment Agreement (i.e., January 1, 2019, January 1, 2021 and January 1, 2023, as applicable), then Escrow Agent shall, without further authorization or approval from anyone, disburse an amount equal to one-third (1/3) of the Financial Assurance Funds (i.e., $416,666.25, plus a pro rata portion of the interest accrued on the Financial Assurance Funds) to City within two (2) business days of receipt of written notice from the City (with City providing Customer with a copy of such notice) stating that City is entitled to the requested amount pursuant to the Assignment Agreement. Initially capitalized terms used in this Section B without definition shall have the meaning set forth in the Assignment Agreement.
C. General Instructions
Escrow Agent is not to disclose to any person (other than the parties hereto, their employees, agents or independent contractors) any information about the Facilities Agreement or the Assignment Agreement or their existence or this letter of instructions (except if requested in 2 WEST 267544052.6
writing by all parties to this Agreement or as may be required by court in any litigation or by law).
As used herein, the term "Funds" means collectively the Reserve Funds and the Financial Assurance Funds. Escrow Agent is, at City's election in its sole discretion, to maintain the Funds in a federally-insured interest-bearing account in a national banking association or such other institution as City may approve, and all interest accruing thereon shall be paid to the party entitled to the Funds under the terms of the Facilities Agreement or Assignment Agreement, as applicable. We understand that Escrow Agent assumes no responsibility for, nor will we hold Escrow Agent liable for, any loss accruing due to bank failure and/or takeover by a federal regulatory agency. Nor shall Escrow Agent be required to institute legal proceedings of any kind pursuant to these instructions, nor be required to defend any legal proceedings which may be instituted against Escrow Agent with respect to the subject matter of these instructions unless Escrow Agent is requested to do so by the parties and arrangements reasonably satisfactory to Escrow Agent have been made to indemnify Escrow Agent against the cost and expense of such defense by the party making such request. If any dispute or ambiguity shall arise with respect to these instructions, whether such dispute arises between the parties hereto or between the parties hereto and other persons, Escrow Agent, at Escrow Agent's sole discretion, may (but is not obligated to) interplead such disputants. Escrow Agent shall be responsible only for the performance of such duties as are strictly set forth herein and in no event shall Escrow Agent be liable for any act or failure to act under the provisions of this letter except where such action or inaction is the result of Escrow Agent's willful misconduct or gross negligence. Escrow Agent's fee for performing its obligations under this Agreement shall be $1,500, with an annual fee of $250 in the event of the term of the escrow extends beyond one year, plus any out-of- pocket expenses. Owner (or Customer on Owner's behalf) and the City shall split equally Escrow Agent's fee upon the opening of this transaction.
The termination of this Agreement shall occur at such time as all funds on deposit have been transferred, or at such time as the parties mutually elect to terminate.
Escrow Agent shall not be responsible for (i) the sufficiency or correctness as to form or the validity of any release instruction deposited with Escrow Agent, (ii) the manner of execution of the release instruction, or (iii) the identity, authority or rights of any person executing the release instruction deposited with Escrow Agent.
The undersigned agree that Escrow Agent shall incur no liability and shall be fully protected in acting in accordance with this instruction and further agree to indemnify and hold Escrow Agent harmless for all losses, costs and expensed incurred, including attorney's fees, as a result of its involvement in any litigation arising from the performance of its duties hereunder.
Escrow Agent shall not be liable, except for its own gross negligence or malicious misconduct, for any claims asserted a party hereto based upon the performance by either party in the closing of this transaction.
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The validity and effectiveness of the Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California.
After closing or cancellation of this escrow, Escrow Agent shall retain the escrow file(s) pertaining to this escrow for five (5) years, after which time Escrow Agent is authorized to destroy or otherwise dispose of such file(s) without notice or liability to the parties hereto.
Escrow Agent has the right to resign upon written notice delivered to the parties hereto. If such right is exercised, all funds and documents shall be returned to the party who deposited them and Escrow Holder shall have no liability hereunder.
The parties hereto expressly agree that you, as Escrow Agent, have the absolute right at your election to file an action in interpleader requiring the parties to answer and litigate their several claims and rights among themselves and you are authorized to deposit with the clerk of the court all documents and funds held in this escrow. In the event such action is filed, the parties Jointly and severally agree to pay your cancellation charges and costs, expenses and reasonable attorney's fees which you are required to expend or incur in such interpleader action, the amount thereof to be fixed and judgment therefore to be rendered by the court. Upon the filing of such action, you shall thereupon be fully released and discharged from all obligations imposed by the terms of this escrow or otherwise.
Except for wire transfers, funds remitted are subject to availability requirements imposed by Section 12413.1 of the California Insurance Code. CASHIER'S, CERTIFIED, or TELLER'S checks, payable to Commonwealth Land Title Company are generally available for disbursement on the next business day following the date of deposit.
Commonwealth Land Title Company conducts escrow business under Certificate of Authority issued by the Department of Insurance.
All notices for Escrow Agent shall be forwarded to:
Commonwealth Land Title Company
888 S. Figueroa Street, Suite 2100
Los Angeles, CA 90017
(213) 330-3071 Direct
(213) 330-3103 Fax
[email protected]
Diana Magana
Assistant
(213) 330-3074 / [email protected]
This Agreement may only be amended or modified by written agreement, executed by the parties hereto and Escrow Agent.
All documents, balances and statements due to the undersigned are to be mailed to the respective addresses shown herein, unless otherwise directed. In the event that any party to this agreement utilizes electronic or facsimile transmitted signed documents, all parties hereby agree to accept and to rely upon such documents as if they bore original signatures. 4 WEST 267544052.6
Please indicate Escrow Agent's agreement to comply with the foregoing instructions by executing at least three (3) copies of this letter and returning (a) one to City at Vernon Gas & Electric Department, Attn: Carlos Fandino, Director, 4305 Santa Fe Avenue, Vernon, CA 90058, with a copy to City of Vernon, City Attorney's Office, Attn: Hema Patel, 4305 Santa Fe Avenue, Vernon, CA 90058, and a copy to DLA Piper LLP (US), 550 South Hope Street, Suite 2300, Los Angeles, California 90071, Attention: Michael Hamilton, Esq. ("City's Counsel"), (b) one to Owner at Fruitland Owner LLC, c/o Cohen Asset Management, Inc., 1900 Avenue of the Stars, Suite 500, Los Angeles, CA 90067, Attention: Mr. Bradley Cohen, President & CEO, with a copy to Raines Feldman LLP, 9720 Wilshire Blvd., Fifth Floor, Beverly Hills, CA 90212, Attn: Andrew Raines, Esq. ("Owner's Counsel"), and (c) one to Customer at rPlanet Earth Los Angeles, LLC, Attn: Robert Daviduk, 2361 Rosecrans Ave.., Suite 336, El Segundo, CA 90245, with a copy to Allen Matkins Leck Gamble Mallory & Natsis LLP, Attn: Joe M. Davidson, Esq., 501 W. Broadway, 15th Floor, San Diego, CA 92101 ("Customer's Counsel"). [signatures on following pages]
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CITY:
THE CITY OF VERNON
By:
Michael McCormick, Mayor
ATTEST:
M.4. Chale
Maria E. Ayala, Jity Clerk
APPROVED AS TO FORM:
Hema Patel, City Attorney
[Signatures continue on the following page]
ESCROW AGREEMENT
CUSTOMER:
RPLANET EARTH LOS ANGELES, LLC,
a Delaware limited liability company
By: Rebert Waviakk
Name: nober
Title: - CEC
By: _
Name: JOSEPH D. ROSS
Title: CO- CEO
[Signatures continue on the following page]
- Signature Page -
Escrow Agreement
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OWNER:
FRUITLAND OWNER LLC,
a Delaware limited liability company
By:
Name: BRADLEY CONtEN
Its: Authorized Signatory
[Signatures continue on the following page]
- Signature Page -
Escrow Agreement
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ACKNOWLEDGED AND AGREED
COMMONWEALTH LAND TITLE COMPANY
By:
Name:
Title:
[End of signatures]
- Signature Page-
Escrow Agreement
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EXHIBIT A
ESCROW AGENT'S WIRING INSTRUCTIONS
Commonwealth
LAND TITLE COMPANY
888 S. Figueroa Street, Ste. 2100, Los Angeles, California 90017 Phone: (213) 330-3071 | Fax: (213) 330-3103 | [email protected] WIRE TRANSFER INFORMATION:
Bank of America
275 Valencia Ave Mail Code: CA7-701-02-66
Brea, CA 92823
ESCROW ACCOUNT NO.: 1257967028
ACCOUNT NAME: COMMONWEALTH LAND TITLE COMPANY
ABA/ROUTING NO.: 0260-0959-3
SWIFT CODE: BOFAUS3N
Attention: Mai-Ly Marsh
Re: Escrow No. 09170093 - MMarsh (Vernon)
Exhibit A
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|To be executed concurrently with the Added Facilities Agreement at Closing under Purchase Agmt|
AGREEMENT FOR ECONOMIC DEVELOPMENT INCENTIVE ON ELECTRIC SERVICE This Agreement for Economic Development Incentive on Electric Service (this "Agreement") is between RPLANET EARTH LOS ANGELES, LL.C, a Delaware limited liability company ("Applicant"), and the City of Vernon, a California municipal corporation.
RECITALS:
The Economic Development rate was established and is made available at the City of Vernon's sole discretion. The Economic Development rate is set forth in the City of Vernon's rate Schedule ED.
Applicant proposes to have constructed for it to operate as a new facility at 3200 Fruitland, in the City of Vernon ("New Facility") and desires that the City of Vernon provide electric service to such facility.
In consideration of Applicant's commitment to construct and operate the New Facility in the City of Vernon at the contracted demand, the City of Vernon has agreed to modification of the Economic Development rate as set forth in Schedule ED.
AGREEMENT: Applicant and the City of Vernon agree to the following terms and conditions:
1. QUALIFICATION CRITERIA.
Applicant is or will be a customer, eligible for receiving service under Schedule TOU-G, TOU-V or its successor rate schedule.
The electric load subject to this agreement is a maximum billing demand of at least 5,750 kW of net new load to the City of Vernon. The minimum 5,750 kW of net new load must be maintained for at least three consecutive months during the initial 12 months of this agreement. Only new load that will be regularly served by the City of Vernon will be eligible for this incentive.
2. BILL INCENTIVE.
Electric service to Applicant's premises shall be delivered under Applicant's otherwise applicable tariff (OAT), which is TOU-V. A ten year rate incentive up to a twenty (20) percent reduction will be applied to the customer's OAT (excluding taxes). This reduction shall be calculated on the rate components of the customer's bill that correlate to service that the City of Vernon provides the customer. If needed the City of Vernon may reduce the incentive percentage to ensure that revenues exceed the Floor Price. For purposes hereof, the Floor Price shall mean the Floor Price set forth in Schedule ED except that for purposes hereof the "marginal generation cost" component of the Floor Price for any fiscal year shall not exceed the mean Day-Ahead Locational Marginal Price (LMP) for Vernon Metered Subsystem load aggregation point (on-peak or off-peak, as applicable) as published by the California Independent System WEST\264304428.2
Operator (CAISO). This incentive under this schedule will be limited by the Floor Price, as defined in Schedule ED and modified as set forth above. In calculating the Floor Price, the City of Vernon will make use of its best estimate of the marginal cost to serve the customer. The revenues from each participant will be reviewed annually and/or at the end of the agreement to ensure that they equal or exceed the Floor price for each year of the agreement, up to the OAT revenue that the customer would have paid if it had not received the incentive.
Applicant's rate under this schedule will be subject to an annual review, with potential additional lump- sum charges due to the City of Vernon or credits due to Applicant. The charges shall ensure that the rate does not fall below the Floor Price each year. Credits, if available after the annual review, Will be provided if the customer's incentive rate had been previously reduced from the maximum incentive above as a result of the application of the Floor Price limitation.
3. INCENTIVE CALCULATION.
Terms and conditions necessary for the incentive calculation are defined and agreed to as follows:
Billing determinants used for calculating the first year incentives will be the City of Vernon's best estimate of expected usages and demand for customer expansion and attraction cases. For expansion cases, the previous 12- months of historical metered data, if available, will be used to determine current usage levels, and the incentive will be calculated only on that portion of demand and usage that is added.
During the annual and contract term review, the City of Vernon will compare the revenues received to the Floor Price to ensure that the revenues received remain at least equal to the Floor Price throughout the duration of the contract.
The City of Vernon reserves the right to reduce the contracted demands stated by the Applicant below if it is determined that the Applicant's actual load at full operation of the facility after the Commencement Date of this Agreement is more than 25% less than the contracted maximum demands stated below. [Please mark the appropriate space below, indicating whether this is an agreement for the Applicant's entire load or only a portion of the Applicant's load.] X New customer locating in the City of Vernon.
b. Expansion of the existing customer's load.
C. The contracted demand of the new or expanded load is estimated to be on average, _5,750 _kW initially and 11,500 kW at full facility operation.
The excluded Demands, if applicable, are determined by averaging the Applicants four highest measured demands during each seasonal period during the 12-mont period preceding the execution date of this agreement, if available. If Applicant separately meters the Reserved Demand, Applicants Excluded Demand will be zero (0) kW for each season. The City of Vernon and the Applicant agree that the excluded demand is:
July to September: 0 kW
May, June, October: 0 kW
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November to April: 0
The Incentive Ratio for each month is defined as the difference between the Applicant's maximum demand for that month and the excluded Demand divided by that same month's maximum demand. The Incentive Ratio will be a fraction from zero (0) to one (1). The Economic Development Rate discount is determined as the product of the rate incentive, the Incentive Ratio and the subtotal of charges on the rate components of the Applicant's bill that correlate to service that the City of Vernon provides to Applicant.
4. COMMENCEMENT DATE.
The incentive shall commence on the Applicants regularly scheduled meter read day in the month following the date that installation of Phase 1 of the Added Facilities (as defined in that certain Added Facilities Agreement of even date herewith) is completed by City (the "Commencement Date").
5. METERING.
Applicant agrees to be responsible for all costs associated with providing separate electric metering if the City of Vernon, at its sole discretion, deems such metering a necessary condition to implement this rate.
If Applicant is deemed to require separately metered reserved demand, Applicant must have metering in place before the incentive rate will apply. Applicant's ability to have required metering in place shall not delay the commencement date provided in Section 4 by which the Applicant would have otherwise received the incentive.
6. TERM OF AGREEMENT.
This agreement shall take effect on the Effective Date and remain in effect for a term of ten years following the Commencement Date, subject to Section 2.
TERMINATION AGREEMENT
Applicant may terminate this agreement upon 30 days written notice. The City of Vernon may also terminate this agreement upon 30 days written notice in the event Applicant no longer meets the qualifications described elsewhere in the Agreement and in Rate Schedule ED. Notwithstanding these rights of termination, the Applicant shall be subject to Liquidated Damages as provided in Section 9 of this agreement.
8. "BUT FOR" TEST
Applicant attests that "but for" the terms of this agreement, either on its own or in combination with a package of incentives made available to the Applicant from other sources, the Applicant would not have located, or increased its operations within the City of Vernon. Applicant shall sign the attached affidavit to that effect.
9. LIQUIDATED DAMAGES
If this agreement is terminated due to Applicant's misrepresentation or fraud, Applicant shall be liable for liquidated damages that equal 200% of the cumulative difference between (i) bills calculated under the Schedule ED rate to the date of termination and (ii) bills that would have been calculated under the OAT.
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10. ASSIGNMENT.
Applicant may assign this agreement only if the City of Vernon consents in writing (not to be unreasonably withheld, conditioned or delayed) and the party to whom the agreement is assigned agrees in writing to be bound by this agreement in all respects.
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IN WITNESS THEREOF, the Parties have executed this Agreement in multiple originals of equal dignity by their respective duly authorized representatives.
Executed this 22d day or February 2016 the Efective Date) rPlanet Earth The City of Vernon
Tahert Davidul Popen malanan
(signature) (signature)
Robert Daviduk W. Michael McCormick
(Print Name) (Print Name)
CO- CEO Mayor
(Title) (Title)
ATTEST:
Maria E. Ayalay City Clerk
APPROVED AS TO BORM:
Hema CYty Attorney
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AFFADAVIT FOR ECONOMIC DEVELOPMENT RATE
By signing this affidavit, an Applicant who locates or adds load in the City of Vernon hereby certifies and declares under penalty of perjury under the laws of the State of California that the statements in the following paragraphs are true and correct.
1. But for the receipt of the discounted economic development rate and the terms of the Agreement, either on its own or in combination with an economic development incentive package, the Applicant's load would not have been located, or added within the City of Vernon.
2. The load to which the Agreement applies represents kilowatt-hours (k Wh) and kilowatts (kW) that either (i) does not already exist in the City of Vernon, or (it) the Applicant considered expanding to a location outside of the City of Vernon.
Applicant has discussed with the City of Vernon the cost-effective conservation and load management measures the applicant may take to reduce their electric bills and the load they place on the City of Vernon's utility system.
4. On an annual basis, the cost of electricity for a new or expanding customer is at least five (5) percent of its actual operating costs, less the cost of raw materials.
Executed this 2nd day of February 2016
rPlanet Earth Los Angeles, LLC
(Applicant)
Robert Daviduke
BY:
Signature
Robert Daviduk
(Print Name)
TITLE: CO- CEO
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CITY OF VERNON
ADDED FACILITIES AGREEMENT
1. PARTIES: The Parties to this Added Facilities Agreement ("Agreement") are RPLANET EARTH LOS ANGELES, LLC, a Delaware limited liability company ("Customer") and the City of Vernon, a California municipal corporation ("City"), hereinafter referred to individually as "Party" and collectively as "Parties."
2. RECITALS:
2.1. City and the Customer (or, an affiliate of the Customer) are entering into this Agreement with respect to the electric service delivery to the property located at 3200 Fruitland, Vernon, California (the "Property").
2.2. Customer has requested to receive electric service from City at a single or totalized point of 16 kV delivery starting on or about the Start Date (as defined below) at an initial service level of 5,750 kW demand based on an estimated 9,000 kW of connected load with a potential service level of 11,000 kW demand based on an estimated 19,000 kW of connected load.
2.3. Parties agree that City shall provide the design, engineering, procurement, construction, installation, ownership, and maintenance of the electric facilities described in Exhibit A, and hereinafter referred to as "Added Facilities", the cost of which shall be paid solely by the Customer in accordance herewith. .
2.4. Parties agree that in-lieu of constructing a 66 kV substation at the Customer property, Customer shall pay to City $1,000,000 in aid of construction to upgrade the City' electrical substation transformers (the "In Lieu Fee").
2.5. Parties agree that the City shall extend a new 16 KV line from inside the City's electrical substation to the customer's property line to be identified as a 16 KV line extension (the "Line Extension"). Customer shall pay for the Line Extension in accordance herewith. For purposes of determining the Added Facilities Installation Costs and Added Facilities Monthly Charge, the line extension is excluded from the list of Added Facilities.
2.6. Parties agree that Customer shall deliver to an escrow account established by the City and Customer the amount specified herein, which amounts will be used to pay to the City and/or its contractors all Added Facilities Installation Costs (as defined below) and Line Extension Costs (as defined below).
3. AGREEMENT: Parties agree to the terms and conditions set forth herein, including Exhibits A through E, attached hereto and incorporated herein by this reference.
4. EFFECTIVE DATE AND TERM:
This Agreement shall be effective upon execution by the Parties and approval by the City Council of the City of Vernon.
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4.2. This Agreement shall continue in effect until (a) Customer gives notice of termination of service in accordance with Vernon's Rules for Electric Service (as amended, the "Electric Service Rules"), (b) this Agreement is terminated by City due to an Event of Default by Customer (c) this Agreement is terminated by City due to a Failure to Commence Operations by Customer, ten (10) business days after notice from City to Customer, or (d) this Agreement is terminated pursuant to Section 19;
4.3. If this Agreement is terminated, Customer shall pay within ten (10) business days after notice from City (a) all unpaid Added Facilities Installation Costs, Added Facilities Monthly Charges and any other amounts owed by Customer hereunder, in each case through the date of termination, and (b) the Termination Fee, as described on Exhibit C Customer's obligations to pay such amounts shall survive the termination of this Agreement. If the Customer has elected to terminate this Agreement, such termination shall not be effective unless and until such amounts are paid in full.
DEFINITIONS: The following terms, when used herein with initial capitalization, whether in the singular or the plural, shall have the following meanings:
S.1. Added Facilities: The facilities to be designed, engineered and constructed as specified in Exhibit A, all of which are being allocated for the Customer's use and benefit as Added Facilities. Any upgrades or improvements associated with such Added Facilities will be mutually agreed upon by Customer and City in writing and will thereafter automatically become part of the Added Facilities.
5.2. Added Facilities Installation Costs: All costs and expenses incurred by City in relation to the design, engineering, procurement, construction, and installation of the Added Facilities, including without limitation the reasonably allocated costs of internal City employees involved with such design, engineering, procurement, construction and installation.
Customer acknowledges that the Added Facilities Installation Costs may be based on prevailing wages and other regulatory requirements. The Added Facilities Installation Costs shown on Exhibit A are estimates only. If the final Added Facilities Installation Costs differ from the estimates, the Added Facilities Installation Costs will be equal to such final amount and Exhibit A, and related calculations in Exhibits B and C, shall be deemed automatically amended to reflect the same.
5.3. Added Facilities Monthly Rate: The Added Facilities Monthly Rate pursuant to Exhibit B.
5.4. Agreement and Amendments: This Agreement, including all attachments and exhibits hereto, as may be amended from time to time. Modifications and amendments to this Agreement shall be valid and enforceable only if in writing and signed by the Parties, or as otherwise expressly provided herein.
5.5. Added Facilities Monthly Charge: The charge to Customer for Added Facilities that is payable monthly to City as outlined in Exhibit C, as may be modified in accordance herewith. The Added Facilities Monthly Charge recovers replacement, operations and maintenance of all facilities that are allocated for Customer's exclusive use consisting of /-00001/10-27-15/jmd/jmd -2- WEST 263631313.4
distribution transformers, pad-mounted switches, pad-mounted primary metering cabinets, 16 KV cabling from pad-mounted switches to distribution transformers and 600 Volts cabling from the transformers to the customer furnished electric panels and low voltage metering and all necessary hardware to deliver a reliable and efficient power delivery. The Added Facilities Monthly Charge does not include the costs of the Line Extension, as the City will be fully responsible for its upkeep.
5.6. Completion Date. December 15, 2016, subject to uncontrollable forces as described in Section 11 below.
5.7. Effective Date. The date set forth in Section 30 below.
5.8. In Lieu Fee. $1,000,000 in cash and immediately available funds, as contemplated by Section 2.5.
5.9. Line Extension. As generally described in Section 2.6, and more particularly described on Exhibit A-1.
5.10. Line Extension Costs. All costs and expenses incurred by City in relation to the design, engineering, procurement, construction, and installation of the Line Extension, including without limitation the reasonably allocated costs of internal City employees involved with such design, engineering, procurement, construction and installation, estimates of which are provided on Exhibit A-1. Customer acknowledges that the Line Extension Costs may be based on prevailing wages and other regulatory requirements. The Line Extension Costs shown on Exhibit A-1 are estimates only. If the final Line Extension Costs differ from the estimates, the Line Extension Costs will be equal to such final amount and Exhibit A-l, and related calculations on Exhibit C, shall be deemed automatically amended to reflect the same.
5.11. Reserve Amount. An amount equal to two hundred percent of the estimated Added Facilities Installation Costs and Line Extension Costs, which based on Exhibits A and A-1 as of the Effective Date and as applied to Phase 1 of the Added Facilities only, is equal to $2,300,000.
5.12. Services: The design, engineering, procurement, construction, installation, ownership, replacement, operation and maintenance of the Added Facilities.
5.13. Start Date. The date that is thirty (30) days following the date upon which the City has completed the installation of the Added Facilities.
6. ADDED FACILITIES; LINE EXTENSION:
6.1. The Added Facilities will be located at the Property. Added Facilities consist of, among other things, construction and installation of distribution transformers and apparatus delivering multiple 277/480 volt service points for the benefit of the Customer on the terms and conditions set forth in this Agreement. The Added Facilities allocated for Customer's exclusive use shall be installed in or on Customer's furnished underground infrastructure consisting of conduit banks, transformer concrete pads, switching concrete pads, primary /-00001/10-27-15/imd/imd -3- WEST 263631313.4
metering concrete pads and protective barriers, all of which are to be provided by Customer at Customer's sole cost and expense.
6.2. City shall perform all of the Services related to the Added Facilities and the Line Extension.
6.3. Subject to Customer's fulfillment of the conditions precedent set forth in Section 19 below, City will (a) commence performance of the design and construction of the Line Extension and Phase 1 of the Added Facilities, as described on Exhibit A, upon full execution of this Agreement and (b) use commercially reasonable efforts to install the Line Extension and Phase 1 of the Added Facilities by the Completion Date, so that they are fully operational upon the issuance of a "Certificate of Occupancy" for the Property (which is estimated by Customer to be obtained on or before December 31, 2016).
6.4. Added Facilities and the Line Extension shall at all times remain the property of City.
6.5. At Customers election, the Added Facilities are being constructed in two phases as described on Exhibit A. The facilities constructed in Phase 1 shall be adequate to serve the initial 5,750 kW contract demand. The Added Facilities constructed in Phase 2 shall be adequate to accommodate Customer's electric demand of with a potential of 11,000 kW.
6.6. Customer shall install the underground infrastructure consisting of conduit banks, concrete pads and protective barriers for all phases prior to final paving of the Property and in all cases in a timely manner to ensure City's ability to perform the installation of the Added Facilities in accordance herewith.
6.7. City shall exercise commercially reasonable efforts to complete the installation of Phase 1 of the Added Facilities and Line Extension per the Project Schedule included as Exhibit D. However, City shall not be liable for any cost or damage incurred by Customer because of any delay in the commencement, progress or completion of the installation of any Added Facilities or the Line Extension.
6.8. City shall construct and maintain the Added Facilities and Line Extension diligently pursuant to all applicable federal, state and local safety codes, regulations, and laws, including but not limited to the requirements of California's General Orders No. 95, 128 and 165.
Customer shall have the exclusive right of use of the Added Facilities located on the property.
6.9. Prior to the date on which City completes the Added Facilities and provides electrical service to Customer at the Property, Customer shall have obtained and paid for all necessary local and state licenses and permits for operation of its business including City of Vernon building, electrical and mechanical permits, health permit, certificate of occupancy, business license, etc. City shall not provide electrical service under this Agreement until Customer has notified City in writing of its date of commencing operations, which shall not occur prior to the date on which Customer has obtained all of such licenses and permits.
6.10. Notwithstanding anything to the contrary herein, City will not commence, and shall have no obligations with respect to, Services relating to Phase 2 of the Added Facilities /-00001/10-27-15/imd/imd -4- WEST 263631313.4
until such time as Reserve Funds therefore have been deposited with the Escrow Agent, as provided in Section 19 below.
CHARGES:
Customer agrees to pay the Added Facilities Installation Costs, the Added Facilities Monthly Charge, the Line Extension Costs and the Termination Fee in accordance herewith.
7.2. Within three (3) business days after the Effective Date, Customer shall pay to City, pursuant to wiring instructions provided by the City, the In Lieu Fee.
7.3. If at any time Customer requests upgrades to the Added Facilities for Customer's convenience, City shall determine if such upgrades are feasible. If such upgrades are made at Customer's request for Customer's convenience and benefit, the costs shall be paid by Customer at the times and on the basis as agreed to by the Parties at the time.
7.4. The Added Facilities Monthly Charge will commence upon the Start Date.
7.5. MODIFICATIONS OR REPLACEMENT OF ADDED FACILITIES
AND LINE EXTENSION: Whenever Added Facilities and/or components of the Line Extension are repaired or replaced due to damage or equipment failure, the work shall be completed at City's sole expense in accordance with good utility practice, pursuant to all applicable federal, state and local safety codes, regulations and laws, including but not limited to the requirements of California General Orders No. 95, 128 and 165. Notwithstanding the foregoing, if the damage or equipment failure is caused by or due to action or inaction by the Customer, then the Customer shall be solely responsible for the entire cost of repair or replacement and shall pay the same to City within ten (10) business days after demand therefor.
Where an upgrade or improvement to the Added Facilities or Line Extension is required for City's convenience or necessity, no increase shall be made in the investment amount for Added Facilities, the Added Facilities Installation Cost, Line Extension Costs or the Added Facilities Monthly Charge. Such upgrades or improvements shall be reasonably coordinated with Customer prior to any such upgrades or improvements made in order to avoid unreasonable interruption of Customer's operations.
7.6. Subject to Section 7.5, City shall be responsible for all routine maintenance and repairs required to maintain the Added Facilities and Line Extension in good operating condition and shall make those capital expenditures (including capital repairs and replacements, as necessary) required to maintain the Added Facilities and Line Extension.
8. RIGHT-OF-WAY: Customer understands that property owner grants to City the right of ingress to and egress from Customer's Property as determined by City in its sole discretion for any purpose connected with the construction, operation, and maintenance of the Added Facilities and Line Extension. Customer agrees to provide right-of-way or easements of sufficient space to provide legal clearance from all structures now or hereafter erected on Customer's Property for any facilities of City. Customer and property owner will promptly execute a recordable document, based on the City's customary form, evidencing the above /-00001/10-27-15/imd/imd -5- WEST 263631313.4
described right of ingress and egress and right-of-way or easement, with the recordation costs to be borne by City.
9. BILLING AND PAYMENT:
City shall prepare and deliver monthly bills to Customer for the Added Facilities Monthly Charge.
The Customer shall pay the Added Facilities Monthly Charge concurrently with its electric service bills. Late charges will be applied pursuant to City's Electric Service Rules.
10. NOTICES: Except as otherwise provided in this Agreement, any notice, demand, or request provided for in this Agreement, or served, given, or made in connection with the Agreement, shall be in writing and shall be deemed properly served, given, or made if delivered in person, or sent by United States Mail, postage prepaid, or sent by reputable overnight delivery Company RPLANET EARTH LOS ANGELES, LLC
tention Robert Daviduk, Co-CEO
Address: 2361 Rosecrans Ave., Suite 336
City, State, Zip: El Segundo, CA 90245
Telephone (310) 527-0733
Email: [email protected]
Copy to: Allen Matkins Leck Gamble Mallory & Natsis LLP Attention: Joe M. Davidson, Esq.
Address: 501 W. Broadway, 15" Floor
City, State, Zip: San Diego, CA 92101
Email: [email protected]
Vernon: Vernon Gas & Electric Department
Attention Carlos Fandino, Director
Address: 4305 Santa Fe Avenue
City, State, Zip: Vernon, CA 90058
Telephone: -
Email:
Copy to: City Attorney's Office
Attention: Hema Patel, City Attorney
Address: 4305 Santa Fe Avenue
City, State, Zip: Vernon, CA 90058
Either Party may at any time, by notice to the other Party, change the designation or address of the person so specified as the one to receive notices pursuant to this Agreement. Notices are deemed given and received on the date of delivery or attempted delivery, if delivery is not accepted.
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11. FORCE MAJEURE: Neither Party shall be considered to be in default in the performance of any of its obligations under this Agreement (other than obligations to make payments pursuant to this Agreement) when failure of performance shall be due to uncontrollable forces. The term "uncontrollable forces" means any cause beyond the control of the Party failing to perform, including, but not restricted to, failure of facilities, flood, earthquake, storm, lightning, fire, epidemic, war, riot, terrorism, civil disturbance or disobedience, labor dispute, labor or material shortage, sabotage, restraint by court order or public authority, and action or non-action by, or inability to obtain the necessary authorizations or approvals from, any governmental agency or authority which by exercise of due diligence such Party could not reasonably have been expected to avoid and which by exercise of due diligence it has not overcome. Either Party rendered unable to fulfill any of its obligations under this Agreement by reason of an uncontrollable force shall give prompt written notice of such fact to the other Party and shall exercise due diligence to remove such liability. Nothing contained herein shall be construed to require a Party to settle any strike or labor dispute in which it may be involved.
12. INDEMNIFICATION AND LIMITATIONS ON LIABILITY:
12.1. Except to the extent of City's gross negligence or willful misconduct, Customer agrees to indemnify, defend, and hold harmless City of and from any and all claims, causes of action, damages and judgments arising out of any act or omission of City, and its officers, directors, employees and agents that may have caused injury or damage to any person, or to the equipment, fixtures, goods, products, or other property of the Customer, the Customer's employees, contractors, invitees, customers, or any other person in or about the Property, regardless of cause or whether or not such injury or damage results from conditions arising from Services provided by City hereunder or the installation, operation or maintenance of the Added Facilities and/or Line Extension or any failure of the Added Facilities or Line Extension to deliver electrical power or any defect in the Added Facilities and/or Line Extension, or explosion, fire, or steam released from the Added Facilities and/or Line Extension.
12.2. Notwithstanding either Party's negligence or breach of this Agreement, under no circumstances shall either Party be liable to the other Party for indirect, special, or consequential loss, damage, claim, cost, charge, or expense including, but not limited to, loss of business or any loss of income or profit therefrom, loss of use of a Party's facilities, loss of revenue, cost of replacement power or water, and claims of any third party, including any customer of the other Party.
ENTIRE AGREEMENT: This Agreement, including Exhibits A through E, the Agreement for Economic Development Incentive on Electric Service entered into by and between the City and Customer of even date herewith constitutes the complete and final expression of the agreement between the Parties and is intended as a complete and exclusive statement of the terms of their agreement which supersedes all prior and contemporaneous offers, promises, representations, negotiations, discussions, communications, and other agreements which may have been made in connection with the subject matter of this Agreement.
RELATIONSHIP OF PARTIES: The covenants, obligations, and liabilities of the Parties are intended to be several and not joint or collective, and nothing contained in this /-00001/10-27-15/imd/imd -7- WEST 263631313.4
Agreement shall ever be construed to create an association, joint venture, trust or partnership, or to impose a trust or partnership covenant, obligation, or liability on or with regard to either Party.
Each Party shall be individually responsible for its own covenants, obligations, and liabilities as provided in this Agreement. Neither Party shall be under the control of the other Party. Neither Party shall be the agent of or have a right or power to bind the other Party without such other Party's express written consent.
15. NO THIRD-PARTY RIGHTS: The parties do not intend to create rights in, or to grant remedies to, any third Party as a beneficiary either of this Agreement or of any duty, covenant, obligation, or undertaking established herein.
16. ARBITRATION: The Parties agree that any and all disputes arising out of or in relation to this Agreement, including without limitation any action in tort, shall be resolved exclusively, finally and conclusively by arbitration in Los Angeles County, California under the auspices of and pursuant to the rules of the Judicial Arbitration & Mediation Services, Inc. (JAMS). Each Party will select an arbitrator. Those two arbitrators will then select a third. The three member panel will make the final decision. All decisions of the arbitrators shall be in writing, and the arbitrators shall provide written reasons for their decision. The arbitration decision shall be final, unappealable and binding on the parties. Notwithstanding the foregoing, the Parties shall be permitted to access the court system to enforce any arbitration award or to obtain injunctive relief. The exclusive jurisdiction and venue for any such action shall be the Superior Court of California, Los Angeles County.
17. ATTORNEYS' FEES: If either Party institutes an action or legal proceeding arising out of or related to this Agreement or the relationship of the Parties or their rights or duties in connection with the matters set forth in this Agreement, whether sounding in tort, contract, or otherwise, the prevailing Party in such action or proceeding shall be entitled to recover from the other party all costs and expenses, including all costs and reasonable attorneys' fees, in addition to any other remedy awarded by the arbitration panel.
INSURANCE: Customer shall, for the duration of this Agreement, obtain and maintain at its own expense, premises liability coverage with a minimum combined single limit of $1,000,000 per occurrence and provide City with proof of insurance providing and maintaining the coverages and endorsements set forth herein. Said proof of insurance shall also provide that said policy or policies shall not be canceled or materially reduced in coverage without giving at least thirty (30) days prior written notice to the City. The insurance coverage as listed herein, shall be properly endorsed to include those contractual obligations which may be identified further within this Agreement and shall be endorsed to provide City all the rights and privileges of an additional insured. Customer shall cause its insurers to issue, including but not limited to, Certificates of Insurance or, upon request, certified copies of the insurance policies evidencing that the coverages and policy endorsements required under this Agreement, are maintained in force.
19. CONDITIONS PRECEDENT: City's obligations under this Agreement are subject to the following conditions precedent:
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19.1. Within three (3) business days after the Effective Date, Customer shall deliver to Commonwealth Land Title Insurance Company, Attention: Mai Ly Marsh ("Escrow Agent"), in immediately available funds an amount equal to the Reserve Amount (the "Reserve Funds"). City will be entitled to use the Reserve Funds for purposes of paying the Added Facilities Installation Costs and Line Extension Costs. From time to time, as the City progresses with the Services regarding the Added Facilities and/or Line Extension, the City may request a disbursement from the Escrow Agent in order to pay Added Facilities Installation Costs and/or Line Extension Costs. Escrow Agent shall, without further authorization or approval from anyone, disburse the requested amount to City. If City at any time determines that the Reserve Funds are insufficient to pay the Added Facilities Installation Costs and/or Line Extension Costs (the insufficient amount being the "Deficiency"), Customer shall, within five (5) business days after notice thereof from City, deliver to Escrow Agent an amount equal to 200% of such Deficiency. Upon completion of the installation of the Added Facilities and Line Extension and payment of all Added Facilities Installation Costs and Line Extension Costs, any balance of the Reserve Funds remaining with the Escrow Agent shall be released and refunded to Customer upon a joint written instruction of City and Customer.
19.2. Within three (3) business days after the Effective Date, Customer shall have paid to City the In Lieu Fee.
19.3. If said conditions are not satisfied on or before the deadlines indicated, and such failure continues for three (3) days after notice from City to Customer, City may terminate this Agreement by notice to Customer.
19.4. As and when Customer elects for the City to proceed with Services relating to Phase 2 of the Added Facilities, Customer shall cause to be deposited with Escrow Agent Reserve Funds for the estimated Added Facilities Installation Costs relating to Phase 2.
Use of such funds will then be governed by Section 19.1 above. City will provide such estimate at such time. The current estimate is set forth on Exhibit A
20. EVENTS OF DEFAULT:
20.1. Any failure of a Party to perform its obligations hereunder that is not cured by the applicable Party within ten (10) business days after delivery of notice of default from the non-defaulting Party shall constitute an "Event of Default"; provided, however, that such default (other than with respect to any obligation to pay money in accordance herewith shall not constitute an Event of Default if the applicable Party commences to cure the default within such ten (10) business day period and diligently prosecutes the cure to completion and in all events cures such default within sixty (G0) days after the original notice of default.
20.2. In addition to any other remedies available at law or equity, City shall have the right, at its option, to terminate this Agreement and to demand payment as described herein upon the occurrence of an "Event of Default" by or with respect to Customer.
20.3. Upon demand by City following : an Event of Default, Customer shall immediately pay all accrued and unpaid amounts owing by Customer as of the date of termination and the Termination Fee, as described in Exhibit C, calculated as of the date of /-00001/10-27-15/imd/imd -9- WEST 263631313.4
termination. The termination of the obligations of City will not terminate the obligation of Customer until Customer has repaid City for any costs incurred pursuant to this Agreement.
20.4. Each of the following shall also constitute an Event of Default by Customer: (a) the making by Customer of any general arrangement or assignment for the benefit of creditors; (b) Customer becoming a "debtor" as defined in 11 U.S.C. §101 or any successor statute thereto (unless, in the case of an involuntary petition filed against Customer, the same is dismissed within 60 days); (c) the appointment of a trustee or receiver to take possession of substantially all of Customer's assets located at the Property, where possession is not restored to Customer within 30 days; or (d) the attachment, execution or other judicial seizure of substantially all of Customer's assets located at the Property, where such seizure is not discharged within 60 days; provided, however, in the event that any provision of this subparagraph is contrary to any applicable law, such provision shall be of no force or effect, and not affect the validity of the remaining provisions.
21. ASSIGNMENT: This Agreement shall bind and inure to the benefit of the Parties and their respective successors and assigns; provided however, that, Customer shall not assign this Agreement or any of its rights, duties, or obligations without the prior written consent of City, which consent shall not be unreasonably withheld.
22. NO WAIVER: No delay or omission to exercise any right, power or remedy accruing to a Party on any breach or default of the other Party under this Agreement shall impair any such right, power, or remedy, nor shall it be construed to be a waiver of any such breach or default, or any acquiescence in such breach or default occurring later; nor shall any waiver of any single breach or default be considered a waiver of any other prior or subsequent breach or default. Any waiver, permit, consent, or approval of any kind by a party of any breach or default under this Agreement, or any waiver of any provisions or condition of this Agreement, must be in writing and shall be effective only to the extent specifically set forth in that writing.
REMEDIES: All remedies, either under this Agreement or by law or otherwise afforded to a Party, shall be cumulative and not alternative.
24. HEADINGS NOT BINDING: The use of headings in this Agreement is only for ease of reference, shall have no legal effect and are not to be considered part or a term of this Agreement.
SEVERABILITY: If any portion of this Agreement shall be held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable, the remaining provisions shall remain enforceable to the fullest extent permitted by law. Furthermore, to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of this Agreement containing any provision held to be invalid, void, or otherwise unenforceable that is not itself invalid, void, or enforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, void, or unenforceable.
26. GOVERNING LAW: This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California, without regard to its conflict of laws rules.
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COUNTERPARTS: This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement.
28. GOVERNING DOCUMENTS: In the event of a conflict between this Agreement and any other rules or agreements issued by the City of Vernon governing such Added Facilities, this Agreement shall be primary.
SIGNATURE CLAUSE: The signatories hereto represent that they have been appropriately authorized to enter into this Agreement on behalf of the Party for whom they sign.
30. Effective Date. This Agreement is hereby executed as of _ Februar 2.... (the "Effective Date").
CUSTOMER
RPLANET EARTH LOS ANGELES, LLC,
1 Delaware limited liability compan
halet Wavidul
By:
hobart Daviduk
Name:
CO- CEO
Title:
Jor Da
By:_
Name: JOSEPH D. Ross
CO-CEO
Title:
THE CITY OF VERNON
Michael McCormick, Mayor
ATTEST
W.G. Clo
Maria E. Ayala, Cig Clerk
APPROVED AS TO FORM:
/-00001/10-28-15/jmd/jmnd -11- WEST 263631313.4
Healed
Hema Patel, City Attorney
/-00001/10-28-15/jmd/jmd -12- WEST1263631313.4
EXHIBIT A
ADDED FACILITIES PLANS AND SPECIFICATIONS
Phase 1: Estimated Cost $800,000
Phase 1 consists of 5 pad-mounted transformers, 3 PME 16 KV pad-mounted switches, 2 16 KV primary metering cabinets, 16 KV primary cables on the Customer property, low voltage conductors from the transformers to the Customer furnished electrical panels, and low voltage metering.
Phase 2: Estimated Cost $450,000
Phase 2 consists of 5 pad-mounted transformers, 3 PME 16 KV pad-mounted switches, 16 KV primary cables on the Customer property, low voltage conductors from the transformers to the Customer furnished electrical panels, and low voltage metering.
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EXHIBIT A-1
LINE EXTENSION PLANS AND SPECIFICATIONS
The line extension consists of extending a new 16 KV circuit from City's existing City's Substation through City's existing conduit bank infrastructure along Fruitland Avenue and six (6) existing manholes/vaults to the Customer's property line. The City shall own and maintain the new 16 KV circuit similar to other existing 16 KV circuits it owns and the Customer shall neither have exclusive rights to the line extension nor shall it pay for any Added Facilities Monthly Charges associated with the City cost for replacement, operations and maintenance of the line extension.
The estimated Services cost associated with the line extension is $350,000. /-00001/10-27-15/imd/imd -2- WEST263631313.4
EXHIBIT B
ADDED FACILITIES MONTHLY CHARGE
Customer shall pay a monthly added facilities charge at the rate set below. The rate is based on a percentage of the Added Facilities Installation Cost.
Item Cost (estimates) Comments
Added Facilities Monthly Rate 0.33% See FN 1
Added Facilities Installation $800,000 See FN 2
Costs - Phase 1
Added Facilities Installation $450,000 See FN 2
Costs - Phase 2
Added Facilities Monthly $2,640
Charge - Phase 1
Added Facilities Monthly $4,125
Charge - Phase 1 and 2
combined
Line Extension N/A See FN 3
Footnotes:
(1) Pursuant to Rule 2.H
(2) Pursuant to Exhibit A to this Agreement
(3) Line Extension Costs are to be paid by the Customer upon City's request for work performed from the Reserve Funds. The Line Extension, as identified in Exhibit A-1, is not included in the Added Facilities Installation Cost and Added Facilities Monthly Charge.
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EXHIBIT C
TERMINATION FEE
If this Agreement is terminated for any reason, other than an Event of Default by City, Customer shall pay City in full the Termination Fee calculated as set forth below:
• Any Added Facilities Installation Cost and Line Extension Costs; • Plus: Costs of upgrades made at Customer's request for Customer's convenience (if any);
• Plus: Demolition and removal costs (if applicable); and • Plus: Other documented costs actually incurred by City (such as insurance, taxes, cancellation fees, etc., if any).
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EXHIBIT D
PROJECT SCHEDULE - Phase 1 Added Facilities
City Council Approval: December 15, 2015
Design and Engineering Completion: March 31, 2016
Procurement Completion Date: June 30, 2016
Construction Completion date: December 15, 2016
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JOINT CLOSING INSTRUCTIONS
February 1, 2016
Via Email
Senior Commercial Escrow Officer
First American Title Company
1380 La Jolla Village Dr., Ste. 110
Email: [email protected]
Mr. Maurice A. Neri
Senior Escrow Officer
First American Title Insurance Company
National Commercial Services
777 South Figueroa Street, 4th Floor
Los Angeles, CA 90017
Email: [email protected]
Sale of the real property and improvements located at 3200 Fruitland Avenue, of Vernon, a California municipal corporation ("City"), as buyer (as the same has been amended and assigned from time to time, the "Purchase Agreement"); NCS-608626A-SD / Escrow No. NCS-666223-SD; and
Agreement Regarding Assignment and Assumption of Purchase and Sale Agreement, lated as of Auaust 4. 2015. bv and between Citi
and assigned from time to time, the "Assignment Agreement"); Escrow No. 747243.
Dear Janine and Maurice:
This letter is written to you in connection with the above-referenced sale and shall constitute joint instructions of City and Owner to First American Title Company ("Title Company", and in its capacity as escrow agent, "Escrow Company") with respect to the "Funds" and the "Documents" described herein.
A. Delivery of Funds.
On or before the closing date of the transactions contemplated herein (the "Closing Date"), Escrow Company will obtain from Owner the funds required to be deposited pursuant to the Closing Statements (hereinafter defined) in order to consummate the above-described transaction (the "Funds"), which Funds shall be wire transferred to Escrow Company's account.
WEST 267545716.4
Is. Janine Hudso
Mr. Maurice Ne
First American Truary 1. 2any
B. Delivery of Documents.
Delivery of Documents to Escrow Company. On or before the Closing Date, Escrow Company will receive from the parties involved the following documents:
(a) Two (2) originals of an Assignment and Assumption of Purchase and Sale Agreement, executed by City and Owner (the "Assignment of PSA"); (b) One (1) original of a Grant Deed, executed and acknowledged by Seller (the "Deed");
(C) Three (3) originals of an Access License Agreement, executed and acknowledged by Seller and Owner ("Access License Agreement"); Two (2) originals of an Assignment and Bill of Sale, executed by Seller (the "Bill of Sale");
(e) One (1) original of a FIRPTA Affidavit, executed by Seller; One (1) original of a Declaration, executed by Seller;
(g) One (1) original of a Form 1099-S, executed by Seller; (h) One (1) original of a California Franchise Tax Board Form 593-C, executed by Seller;
One (1) original of a Promissory Note in the amount of $1,426,915, executed by Seller for the benefit of City (the "Promissory Note"); Two (2) originals of a Guaranty Agreement, executed by Kennecott Holdings Corporation, as Guarantor, and Owner;
One (1) copy of an Added Facilities Agreement, executed by City and rPlanet Earth Los Angeles, LLC ("Tenant");
One (1) copy of an Agreement for Economic Development Incentive on Electric Service, executed by City and Tenant; and
Tenant (re: Commonwe (3) sirls ofa. 0917009-m teeth a scand "Commonwealth Escrow
Agreement"); and
(n) One (1) original Preliminary Change of Ownership Report, executed by Owner.
The above-mentioned documents (b) - (c) are collectively, the "Recordable Documents", and the above-mentioned documents (a) - (n) are collectively, the "Closing Documents".
WEST 267545716.4
Is. Janine Hudso
Ar. Maurice Ne
irst American Title Compan
-ebruary 1, 201
2. Delivery and Approval of the Closing Statements.
On or before the Closing Date, Escrow Company shall prepare and City (or counsel for City) and Owner (or counsel for Owner) shall approve a closing statement showing the sources and application of funds and the costs and expenses incurred in connection herewith (as approved, the "City/Owner Closing Statement"; Escrow No. 747243).
On or before the Closing Date, Escrow Company shall prepare and Seller (or counsel for Seller) and Owner (or counsel for Owner) shall approve a closing statement showing the sources and application of funds and the costs and expenses incurred in connection herewith (as approved, the "Seller/Owner Closing Statement"; Escrow No. 666223).
As used herein, the term "Closing Statements" shall mean both the City/Cox Closing Statement and the Seller/Owner Closing Statement. (d) As a guide to preparation of the Closing Statements, please see the attached Schedule 1.
C. Conditions to Closing.
None of the above-described documents shall be recorded or delivered to any person or entity until each of the following conditions is satisfied:
Escrow Company has in its possession fully executed and acknowledged (as applicable) originals of all of the Closing Documents.
2. Escrow Company has assembled from any counterparts fully-executed originals of the Closing Documents, and Title Company has confirmed the accuracy of the legal description for the roperty in the Closing Documents (or has attached a legal description approved by Seller, City anc unconditionally and irrevocably prepared to record the Recordable Documents in accordance with Paragraph D hereof.
3. Escrow Company has received the Funds and is unconditionally and irrevocably prepared to wire the same in accordance with Paragraph D hereof.
4. Title Company is unconditionally and irrevocably committed to issue an owner's title policy to Owner in the form attached hereto as Exhibit A (the "Owner's Policy").
5. The City/Owner Closing Statement has been approved by City and Owner.
6. The Seller/Owner Closing Statement has been approved by Seller and Owner.
7. City has received the In Lieu Amount ($1,000,000) from Tenant pursuant to the Added Facilities Agreement (as verified with City's counsel).
8. Commonwealth Land Title Company has received the Financial Assurance Funds ($1,250,000) from Tenant as required under Section 8 of the Assignment Agreement per Commonwealth Escrow No. # 09170093-mm, pursuant to a separate Escrow Agreement (as verified with MaiLy Marsh at Commonwealth Land Title Company ([email protected]).
9. Commonwealth Land Title Company has received the Reserve Amount ($2,300,000) from Tenant as required under Section 19 of the Added Facilities Agreement per Commonwealth Escrow No. # 09170093-mm, pursuant to a separate Escrow Agreement (as verified with Mai Ly Marsh at Commonwealth Land Title Company ([email protected] WEST 267545716.4
Ms. Janine Hudsor
Mr. Maurice Ner
10. Escrow Company has received authorization from the undersigned or any attorney at DLA Piper LLP (US) on behalf of City to close.
11. Escrow Company has received authorization from the undersigned or any attorney at Raines Feldman LLP on behalf of Owner to close.
12. Escrow Company has received authorization from the Seller or any attorney at Baker Hostetler on behalf of Seller to close.
13. Escrow Company is unconditionally and irrevocably prepared to close Escrow No. NCS- 666223-SD and Escrow No. 747243 concurrently.
D. Closing.
If the conditions specified in Paragraph C above are satisfied, then Escrow Company shall immediately take the following actions in the exact order set forth below:
Wire any amounts due to any parties (other than the Title Company) under the Closing Statements in accordance with wiring instructions you will receive from each such party.
Pay all recording fees and costs, all escrow fees and costs and all title premiums to be paid by each of City, Owner and Seller in connection with this transaction (collectively, the "Closing Costs"), the exact amounts of which Closing Costs (unless otherwise indicated to be an estimated amount) are set forth on the Closing Statements.
3. Cause the Deed to be duly recorded in the Official Records of Los Angeles County, California (the "Official Records");
4. Cause the Access License Agreement to be duly recorded in the Official Records; and
5. Issue the Owner's Policy.
E. Delivery of Documents to City and Owner.
As soon as they are available, please deliver to City, c/o DLA Piper LLP (US), 550 South Hope Street, Suite 2300, Los Angeles, California 90071, Attention: Michael Hamilton, Esq., the following:
1. One (1) original of the Owner Assignment;
2. One (1) original of the Assignment of PSA;
3. One (1) original of the Promissory Note;
4. One (1) original of the Commonwealth Escrow Agreement;
5. One (1) copy of the Added Facilities Agreement;
6. One (1) copy of the Agreement for Economic Development Incentive;
7. One (1) original of this letter, executed by Title Company and Escrow Company;
8. One (1) original of the final approved City/Owner Closing Statement; and
9. One (1) copy of the final approved Seller/Owner Closing Statement.
WEST 267545716.4
Is. Janine Hudso
Mr. Maurice Ne
First American Truary 1. 2any
As soon as they are available, please deliver to Owner, c/o Raines Feldman LLP, 9720 Wilshire Boulevard, 5th Flr., Beverly Hills, California 90212, Attention: Eric Blum, Esq., the following:
1. One (1) original of each of the Closing Documents set forth in Paragraph B.1 (a) - (h), (i), (1) and (m).
2. One (1) original of this letter, executed by Title Company and Escrow Company;
3. One (1) original of the final approved City/Owner Closing Statement;
4. One (1) original of the final approved Seller/Owner Closing Statement; and
5. One (1) original Owner's Policy.
F. Limitation of Liability.
Title Company and Escrow Company acting solely as to closing shall be liable solely for their failure to comply with the terms of this letter. The foregoing will not limit Title Company's liability under the terms of the Owner's Policy (such liability being in accordance with the terms of such policy).
G. Execution by Counterparts.
This letter of instructions may be executed in three (3) or more counterparts, each of which shall be an original, but all of which shall constitute one and the same letter of instructions and may also be executed and delivered by facsimile or email, followed by hard copy originals.
H. Execution of Letter.
Please execute this letter of instructions where indicated below to signify your acceptance of the terms herein and please return the fully executed original of this letter to me at the aforementioned address.
Please be advised that, in any event, your recordation of any document in connection herewith will be deemed your acceptance of and agreement to be bound by the terms of this letter of instructions.
I. Further Instructions.
With respect to any additional or supplemental instructions on behalf of City, you are authorized to act on instructions given to you in writing or by email by any member of the law firm of DLA Piper LLP (US).
With respect to any additional or supplemental instructions on behalf of Owner, you are authorized to act on instructions given to you in writing or by email by any member of the law firm of Raines Feldman LLP. [signatures on following pages]
WEST 267545716.4
Ms. Janine Hudso
Mr. Maurice Ne
Sincerely,
DLA Piper LLP (US), Raines Feldman LLP
Counsel to City Counsel to Owner
Guandelion Co. One Spitten
Gwendolyn W. Chen Eric B. Blum, Esq.
Real Estate Specialist
DLA Piper LLP (US) Raines Feldman LLP
1251 Avenue of the Americas, 27th Floor 9720 Wilshire Boulevard, 5th Flr.
New York, New York 10020-1104 Beverly Hills, California 90212 T +1 212.776.3923 Main: (310) 440-4100
Email: [email protected] Email: [email protected] CC: Hema Patel, Esq. (via email)
Andrew Raines, Esq. (via email)
Michael Hamilton, Esq. (via email)
Laura Riley, Esq. (via email)
Mr. Benjamin Lang (via email)
WEST 267545716.4
BY EXECUTING BELOW, ESCROW COMPANY AND TITLE COMPANY IRREVOCABLY COMMIT
THEMSELVES TO COMPLY WITH THE ABOVE INSTRUCTIONS, AND TITLE COMPANY
IRREVOCABLY COMMITS ITSELF TO ISSUE THE OWNER'S POLICY DATED AS OF THE DATE OF THE RECORDATION OF THE DEED.
ACCEPTED AND AGREED TO IN ITS CAPACITY AS TITLE COMPANY,
FIRST AMERICAN TITLE COMPANY
By:
Name.
Title:
Date:
ACCEPTED AND AGREED TO IN ITS CAPACITY AS ESCROW COMPANY,
FIRST AMERICAN TITLE COMPANY
By:
Name:
Title:
Date:
WEST 2675457164
BY EXECUTING BELOW, ESCROW COMPANY AND TITLE COMPANY IRREVOCABLY COMMIT
THEMSELVES TO COMPLY WITH THE ABOVE INSTRUCTIONS, AND TITLE COMPANY
IRREVOCABLY COMMITS ITSELF TO ISSUE THE OWNER'S POLICY DATED AS OF THE DATE OF THE RECORDATION OF THE DEED.
ACCEPTED AND AGREED TO IN ITS CAPACITY AS TITLE COMPANY,
FIRST AMERICAN TITLE COMPANY
By:
Name:
Title:
Date:
ACCEPTED AND AGREED TO IN ITS CAPACITY AS ESCROW COMPANY,
FIRST AMERICAN TITLE COMPANY
Un t
By:
Name:
Title: App
Date: February 2, 2016
WEST 267545716.4
EXHIBIT A
PROFORMA OWNER'S TITLE POLICY
[to be attached by Owner]
WEST 267545716.4
PRO FORMA PRO FORMA
Form No. 1402.06 Policy Page 1
ALTA Owner's Policy (6-17-06) Policy Number: NCS-747243-SDss0 1100302P050600
OWNER'S POLICY OF TITLE INSURANCE
ISSUED BY
First American Title Insurance Company
Any notice of claim and any other notice or statement in writing required to be given to the Company under this policy must be given to the Company at the address shown in Section 18 of the Conditions.
COVERED RISKS
SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS
FROM COVERAGE CONTAINED IN SCHEDULE B AND THE
CONDITIONS, FIRST AMERICAN TITLE INSURANCE COMPANY, a
Nebraska corporation (the "Company") insures, as of Date of Policy and, to the extent stated in Covered Risks 9 and 10, after Date of
7. These, de of in any par or e lam, i recoice of the
Policy, against loss or damage, not exceeding the Amount of Insurance, sustained or incurred by the Insured by reason of:
1. Title being vested other than as stated in Schedule A. 8. Any taking by a governmental body that has occurred and is
2. Any defect in or lien or encumbrance on the Title. This Covered binding on the rights of a purchaser for value without Knowledge.
Risk includes but is not limited to insurance against loss from 9. Title being vested other than as stated in Schedule A or being (a) A defect in the Title caused by defective
(i) forgery, fraud, undue influence, duress, incompetency, (a) as a result of the avoidance in whole or in part, or from a incapacity, or impersonation; court order providing an alternative remedy, of a transfer of (i) failure of any person or Entity to have authorized a all or any part of the title to or any interest in the Land transfer or conveyance; occurring prior to the transaction vesting Title as shown in (ili) a document Schedule A because that prior transfer constituted executed, witnessed, sealed, acknowledged, notarized, or fraudulent or preferential transfer under federal bankruptcy, delivered; state insolvency, or similar creditors rights laws; or (iv) failure to (b) because the instrument of transfer vesting Title as shown in document by electronic means authorized by law; Schedule A constitutes a preferential transfer under federal (v) a document executed bankruptcy, state insolvency, or similar creditors' rights laws otherwise invalid power of attorney; by reason of the failure of its recording in the Public Records (vi) a document not properly filed, recorded, or indexed in (i) to be timely, or (ii) to impart notice of its existence to a purchaser for value by electronic means authorized by law; or or to a judgment or lien creditor. (vii) a defective judicial or administrative proceeding. 10. Any defect in or lien or encumbrance on the Title or other matter (b) The lien of real estate taxes or assessments imposed on the included in Covered Risks 1 through 9 that has been created or Title by a governmental authority due or payable, but unpaid. attached or has been filed or recorded in the Public Records (c) Any encroachment, subsequent to Date of Policy and prior to the recording of the adverse circumstance deed or other instrument of transfer in the Public Records that disclosed by an accurate and complete land survey of the vests Title as shown in Schedule A.
Land. The term
existing improvements located on the Land onto adjoining The Company will also pay the costs, attorneys' fees, and expenses land, and encroachments onto the Land of existing only teete provided in he condie against by this policy, but improvements located on adjoining land.
3. Unmarketable Title.
4. No right of access to and from the Land. First American Title Insurance Company
5. e violation or enforcement of any law, ordinance, permit, vernmental regulation (including those relating to building a zoning) restricting, regulating, prohibiting, or relating to (a) the occupancy, use, or enjoyment of the Land; Damn fAther (b) the character, dimensions, or location of any improvement erected on the Land;
(c) the subdivision of land; or Dennis J. Gilmore
(d) environmental protection President
if a notice, describing any part of the Land, is recorded in the ublic Records setting forth the violation or intention to Jeffrey of. Potinen enforce, but only to the extent of the violation or enforcement referred to in that notice. Jeffrey S. Robinson
6. An enforcement action based on the exercise of a governmental Secretary
PRO FORMA PRO FORMA
PRO Form No. 1402.06 Policy Page 2) RMA
ALTA Owner's Policy (6-17-06) Policy Number: NCS-747243-SDssO EXCLUSIONS FROM COVERAGE (ii) With regard to (A), (B), (C), and (D) reserving, however, all rights The following matters are expressly excluded from the coverage of this policy, and and defenses as to any successor that the Company would have had the Company will not pay loss or damage, costs, attorneys' fees, or expenses that against any predecessor Insured. arise by reason of: "Insured Claimant": An Insured claiming loss or damage.
1. (a) Any law, ordinance, permit, or governmental regulation (including those "Knowledge" or "Known": Actual knowledge, not constructive knowledge relating to building and zoning) restricting, regulating, prohibiting, or or notice that may be imputed to an Insured by reason of the Public relating to Records or any other records that impart constructive notice of matters (i) the occupancy, use, or enjoyment of the Land; affecting the Title. (ii) the character, dimensions, or location of any improvement erected on "Land": The land described in Schedule A, and affixed improvements that the Land; by law constitute real property. The term "Land" does not include any (iii) the subdivision of land; or property beyond the lines of the area described in Schedule A, nor any (iv) environmental protection; interest, estate, or easement in abutting streets, roads, or the effect of any violation of these laws, ordinances, or governmental avenues, alleys, lanes, ways, or waterways, but this does not modify or regulations. This Exclusion 1(a) does not modify or limit the coverage provided limit the extent that a riaht of access to and from the Land is insured by under Covered Risk 5. this policy.
(b) Any governmental police power. This Exclusion 1(b) does not modify or (h) "Mortgage": Mortgage, deed of trust, trust deed, or other security limit the coverage provided under Covered Risk 6. instrument, including one evidenced by electronic means authorized by
2. Rights of eminent domain. This Exclusion does not modify or limit the law. coverage provided under Covered Risk 7 or 8. (i) "Public Records": Records established under state statutes at Date of
3. Defects, liens, encumbrances, adverse claims, or other matters Policy for the purpose of imparting constructive notice of matters relating (a) created, suffered, assumed, or agreed to by the Insured Claimant; to real property to purchasers for value and without Knowledge. With (b) not Known to the Company, not recorded in the Public Records at Date of respect to Covered Risk 5(d), "Public Records" shall also include Policy, but Known to the Insured Claimant and not disclosed in writing to environmental protection liens filed in the records of the clerk of the the Company by the Insured Claimant prior to the date the Insured United States District Court for the district where the Land is located.
Claimant became an Insured under this policy; () "Title": The estate or interest described in Schedule A. resulting in no loss or damage to the Insured Claimant; (k) "Unmarketable Title": Title affected by an alleged or apparent matter that (d) attaching or created subsequent to Date of Policy (however, this does not would permit a prospective purchaser or lessee of the Title or lender on modify or limit the coverage provided under Covered Risks 9 and 10); or the Title to be released from the obligation to purchase, lease, or lend if (e) resulting in loss or damage that would not have been sustained if the there is a contractual condition requiring the delivery of marketable title.
Insured Claimant had paid value for the Title.
4. Any claim, by reason of the operation of federal bankruptcy, state insolvency, 2. CONTINUATION OF INSURANCE or similar creditors' rights laws, that the transaction vesting the Title as shown The coverage of this policy shall continue in force as of Date of Policy in favor of an Insured, but only so long as the Insured retains an estate or interest in the (a) a fraudulent conveyance or fraudulent transfer; or Land, or holds an obligation secured by a purchase money Mortgage given by a (b) a preferential transfer for any reason not stated in Covered Risk 9 of this purchaser from the Insured, or only so long as the Insured shall have liability by policy. reason of warranties in any transfer or conveyance of the Title. This policy shall not
5. Any lien on the Title for real estate taxes or assessments imposed continue in force in favor of any purchaser from the Insured of either (i) an estate governmental authority and created or attaching between Date of Policy and or interest in the Land, or (ii) an obligation secured by a purchase money Mortgage the date of recording of the deed or other instrument of transfer in the Public given to the Insured.
Records that vests Title as shown in Schedule A.
3. NOTICE OF CLAIM TO BE GIVEN BY INSURED CLAIMANT
The Insured shall notify the Company promptly in writing (i) in case of any
1. DEFINITION OF TERMS litigation as set forth in Section 5(a) of these Conditions, (ii) in case Knowledge The following terms when used in this policy mean: shall come to an Insured hereunder of any claim of title or interest that is adverse (a) "Amount of Insurance": The amount stated in Schedule A, as may be to the Title, as insured, and that might cause loss or damage for which the increased or decreased by endorsement to this policy, increased by Company may be liable by virtue of this policy, or (iii) if the Title, as insured, is Section 8(b), or decreased by Sections 10 and 11 of these Conditions. rejected as Unmarketable Title. If the Company is prejudiced by the failure of the (b) "Date of Policy": The date designated as "Date of Policy" in Schedule A. Insured Claimant to provide prompt notice, the Company's liability to the Insured (c) "Entity": A corporation, partnership, trust, limited liability company, or Claimant under the policy shall be reduced to the extent of the prejudice. (d) "Insured": The Insured named in Schedule A.
The term "Insured" also includes In the event the Company is unable to determine the amount of loss or successors to the Title of the Insured by operation of law as damage, the Company may, at its option, require as a condition of payment that distinguished from purchase, including heirs, devisees, survivors, the Insured Claimant furnish a signed proof of loss. The proof of loss must describe personal representatives, or next of kin; the defect, lien, encumbrance, or other matter insured against by this policy that (B) successors to an Insured by dissolution, merger, consolidation, constitutes the basis of loss or damage and shall state, to the extent possible, the distribution, or reorganization; basis of calculating the amount of the loss or damage. (C) successors to an Insured by its conversion to another kind of Entity; 5. DEFENSE AND PROSECUTION OF ACTIONS
(D) a grantee of an Insured under a deed delivered without (a) Upon written request by the Insured, and subject to the options contained payment of actual valuable consideration conveying the Title in Section 7 of these Conditions, the Company, at its own cost and without (1) if the stock, shares, memberships, or other equity interests unreasonable delay, shall provide for the defense of an Insured in of the grantee are wholly-owned by the named Insured, litigation in which any third party asserts a claim covered by this policy (2) if the grantee wholly owns the named Insured, adverse to the Insured. This obligation is limited to only those stated (3) if the grantee is wholly-owned by an affiliated Entity of the causes of action alleging matters insured against by this policy. The named Insured, provided the affiliated Entity and the Company shall have the right to select counsel of its choice (subject to the named Insured are both wholly-owned by the same person right of the Insured to object for reasonable cause) to represent the or Entity, or Insured as to those stated causes of action. It shall not be liable for and (4) if the grantee is a trustee or beneficiary of a trust created will not pay the fees of any other counsel. The Company will not pay any by a written instrument established by the Insured named fees, costs, or expenses incurred by the Insured in the defense of those in Schedule A for estate plannina purposes. causes of action that allege matters not insured against by this policy. (b) The Company shall have the right, in addition to the options contained in
PRO FORMA PRO FORMA
First American Title Insurance Company
PRO Form No. 1402.06 Policy Page 3 RMA
ALTA Owner's Policy (6-17-06) Policy Number: NCS-747243-SDssO Section 7 of these Conditions, at its own cost, to institute and prosecute attorneys' fees, and expenses incurred by the Insured Claimant that were any action or proceeding or to do any other act that in its opinion may be authorized by the Company up to the time of payment and that the necessary or desirable to establish the Title, as insured, or to prevent or Company is obligated to pay. reduce loss or damage to the Insured. The Company may take any Upon the exercise by the Company of either of the options provided for in appropriate action under the terms of this policy, whether or not it shall subsections (b)(i) or (ii), the Company's obligations to the Insured under this be liable to the Insured. The exercise of these rights shall not be an policy for the claimed loss or damage, other than the payments required to be admission of liability or waiver of any provision of this policy. If the made, shall terminate, including any liability or obligation to defend, prosecute, Company exercises its rights under this subsection, it must do so diligently.
(c) Whenever the Company brings an action or asserts a defense as required DETERMINATION AND EXTENT OF LIABILITY or permitted by this policy, the Company may pursue the litigation to a This policy is a contract of indemnity against actual monetary loss or damage final determination by a court of competent jurisdiction, and it expressly sustained or incurred by the Insured Claimant who has suffered loss or damage by reserves the right, in its sole discretion, to appeal any adverse judgment reason of matters insured against by this policy. or order. (a) The extent of liability of the Company for loss or damage under this policy shall not exceed the lesser of
6. DUTY OF INSURED CLAIMANT TO COOPERATE (i) the Amount of Insurance; or (a) In all cases where this policy permits or requires the Company to (ii) the difference between the value of the Title as insured and the value prosecute or provide for the defense of any action or proceeding and any of the Title subject to the risk insured against by this policy. appeals, the Insured shall secure to the Company the right to (b) If the Company pursues its rights under Section 5 of these Conditions and prosecute or provide defense in the action or proceeding, including the is unsuccessful in establishing the Title, as insured, right to use, at its option, the name of the Insured for this purpose. the Amount of Insurance shall be increased by 10%, and Whenever requested by the Company, the Insured, at the Company's (ii) the Insured Claimant shall have the right to have the loss or damage expense, shall give the Company all reasonable aid (i) in securing determined either as of the date the claim was made by the Insured evidence, obtaining witnesses, prosecuting or defending the action or Claimant or as of the date it is settled and paid. proceeding, or effecting settlement, and (ii) in any other lawful act that in (c) In addition to the extent of liability under (a) and (b), the Company will the opinion of the Company may be necessary or desirable to establish also pay those costs, attorneys' fees, and expenses incurred in accordance the Title or any other matter as insured. If the Company is prejudiced by with Sections 5 and 7 of these Conditions. the failure of the Insured to furnish the required cooperation, Company's obligations to the Insured under the policy shall terminate, 9. LIMITATION OF LIABILITY including any liability or obligation to defend, prosecute, or continue any (a) If the Company establishes the Title, or removes the alleged defect, lien, litigation, with regard to requiring such or encumbrance, or cures the lack of a right of access to or from the cooperation. Land, or cures the claim of Unmarketable Title, all as insured, in a (b) The Company may reasonably require the Insured Claimant to submit to reasonably diligent manner by any method, including litigation and the examination under oath by any authorized representative of the Company completion of any appeals, it shall have fully performed its obligations and to produce for examination, inspection, and copying, with respect to that matter and shall not be liable for any loss or damage reasonable times and places as may be designated by the authorized caused to the Insured. representative of the Company, all records, in whatever (b) In the event of any litigation, including litigation by the Company or with maintained, the Company's consent, the Company shall have no liability for loss or correspondence, reports, e-mails, disks, tapes, damage until there has been a final determination by a court of bearing a date before or after Date of Policy, that reasonably pertain to competent jurisdiction, and disposition of all appeals, adverse to the Title, the loss or damage. if requested by any authorized as insured. representative of the Company, the Insured Claimant shall grant its (c) The Company shall not be liable for loss or damage to the Insured for permission, in writing, for any authorized representative of the Company liability voluntarily assumed by the Insured in settling any claim or suit to examine, inspect, and copy all of these records in the custody or without the prior written consent of the Company. control of a third party that reasonably pertain to the loss or damage. All information designated as confidential by the Insured Claimant provided 10. REDUCTION OF INSURANCE; REDUCTION OR TERMINATION OF to the Company pursuant to this Section shall not be disclosed to others LIABILITY unless, in the reasonable judgment of the Company, it is necessary in the All payments under this policy, except payments made for costs, attorneys' administration of the claim. Failure of the Insured Claimant to submit for fees, and expenses, shall reduce the Amount of Insurance by the amount of the examination under oath, produce any reasonably requested information, or grant permission to secure reasonably necessary information from third parties as required in this subsection, unless prohibited by law or 11. LIABILITY NONCUMULATIVE governmental regulation, shall terminate any liability of the Company The Amount of Insurance shall be reduced by any amount the Company pays under this policy as to that claim. under any policy insuring a Mortgage to which exception is taken in Schedule B or to which the Insured has agreed, assumed, or taken subject, or which is executed
7. OPTIONS TO PAY OR OTHERWISE SETTLE CLAIMS; TERMINATION by an Insured after Date of Policy and which is a charge or lien on the Title, and OF LIABILITY the amount so paid shall be deemed a payment to the Insured under this policy.
In case of a claim under this policy, the Company shall have the following additional options: 12. PAYMENT OF LOSS
(a) To Pay or Tender Payment of the Amount of Insurance. When liability and the extent of loss or damage have been definitely fixed in To pay or tender payment of the Amount of Insurance under this policy accordance with these Conditions, the payment shall be made within 30 days. together with any costs, attorneys' fees, and expenses incurred by the Insured Claimant that were authorized by the Company up to the time of 13. RIGHTS OF RECOVERY UPON PAYMENT OR SETTLEMENT payment or tender of payment and that the Company is obligated to pay. (a) Whenever the Company shall have settled and paid a claim under this Upon the exercise by the Company of this option, all liability and policy, it shall be subrogated and entitled to the rights of the Insured obligations of the Company to the Insured under this policy, other than to Claimant in the Title and all other rights and remedies in respect to the make the payment required in this subsection, shall terminate, including claim that the Insured Claimant has against any person or property, to the any liability or obligation to defend, prosecute, or continue any litigation. extent of the amount of any loss, costs, attorneys' fees, and expenses (b) To Pay or Otherwise Settle With Parties Other Than the Insured or With paid by the Company. If requested by the Company, the Insured Claimant the Insured Claimant. shall execute documents to evidence the transfer to the Company of these (i) To pay or otherwise settle with other parties for or in the name of an rights and remedies. The Insured Claimant shall permit the Company to Insured Claimant any claim insured against under this policy. In sue, compromise, or settle in the name of the Insured Claimant and to addition, the Company will pay any costs, attorneys' fees, and use the name of the Insured Claimant in any transaction or litigation expenses incurred by the Insured Claimant that were authorized by involving these rights and remedies. the Company up to the time of payment and that the Company is If a payment on account of a claim does not fully cover the loss of the obligated to pay; or Insured Claimant, the Company shall defer the exercise of its right to (ii) To pay or otherwise settle with the Insured Claimant the loss or recover until after the Insured Claimant shall have recovered its loss. damage provided for under this policy, together with any costs,
PRO FORMA PRO FORMA
First American Title Insurance Company
PRO Form No. 1402.06 P Policy Page 4 RMA
ALTA Owner's Policy (6-17-06) Policy Number: NCS-747243-SDssO (b) The Company's right of subrogation includes the rights of the Insured to (d) Each endorsement to this policy issued at any time is made a part of this indemnities, guaranties, other policies of insurance, or bonds, policy and is subject to all of its terms and provisions. Except as the notwithstanding any terms or conditions contained in those instruments endorsement expressly states, it does not (i) modify any of the terms and that address subrogation rights. provisions of the policy, (i) modify any prior endorsement, (ili) extend the Date of Policy, or (iv) increase the Amount of Insurance.
14. ARBITRATION
Either the Company or the Insured may demand that the claim or controversy 16. SEVERABILITY shall be submitted to arbitration pursuant to the Title Insurance Arbitration Rules of In the event any provision of this policy, in whole or in part, is held invalid or the American Land Title Association ("Rules"). Except as provided in the Rules, unenforceable under applicable law, the policy shall be deemed not to include that there shall be no joinder or consolidation with claims or controversies of other provision or such part held to be invalid, but all other provisions shall remain in full persons. Arbitrable matters may include, but are not limited to, any controversy or force and effect. claim between the Company and the Insured arising out of or relating to this policy, any service in connection with its issuance or the breach of a policy 17. CHOICE OF LAW; FORUM provision, or to any other controversy or claim arising out of the transaction giving (a) Choice of Law: The Insured acknowledges the Company has underwritten rise to this policy. All arbitrable matters when the Amount of Insurance is the risks covered by this policy and determined the premium charged $2,000,000 or less shall be arbitrated at the option of either the Company or the therefore in reliance upon the law affecting interests in real property and Insured. All arbitrable matters when the Amount of Insurance is in excess of applicable to the interpretation, rights, remedies, or enforcement of $2,000,000 shall be arbitrated only when agreed to by both the Company and the policies of title insurance of the jurisdiction where the Land is located.
Insured. Arbitration pursuant to this policy and under the Rules shall be binding Therefore, the court or an arbitrator shall apply the law of the jurisdiction upon the parties. Judgment upon the award rendered by the Arbitrator(s) may be where the Land is located to determine the validity of claims against the entered in any court of competent jurisdiction. Title that are adverse to the Insured and to interpret and enforce the terms of this policy. In neither case shall the court or arbitrator apply its
15. LIABILITY LIMITED TO THIS POLICY; POLICY ENTIRE CONTRACT conflicts of law principles to determine the applicable law. (a) This policy together with all endorsements, if any, attached to it by the (b) Choice of Forum: Any litigation or other proceeding brought by the ompany is the entire policy and contract between the Insured and th mine the unite scates or me a or is a one er aprop are. ompany. In interpreting any provision of this policy, this policy shall b construed as a whole. jurisdiction.
(b) Any claim of loss or damage that arises out of the status of the Title or by any action asserting such claim shall be restricted to this policy. 18. NOTICES, WHERE SENT (c) Any amendment of or endorsement to this policy must be in writing and authenticated by an authorized person, or expressly incorporated by Schedule A of this policy.
POLICY OF TITLE INSURANCE
IRST AMERICA
PRO FORMA PRO FORMA
First American Title Insurance Company
PRO Form No. 1402.06 Policy Page 5 RMA
ALTA Owner's Policy (6-17-06) Policy Number: NCS-747243-SDss0
SCHEDULE A
First American Title Insurance Company
Name and Address of the issuing Title Insurance Company:
First American Title Insurance Company
National Commercial Services
4380 La Jolla Village Drive, Suite 110
San Diego, CA 92122
File No.: NCS-747243-LA2 Policy No.: NCS-747243-SDssO
Address Reference: APN'S 6310-008-020, 6310-008-021 AND 6310-008-800 (New APN's 6310-008-020 and 6310-008-21), Los Angeles, CA
Amount of Insurance: $22,556,769.00
Date of Policy: Date and Time at Recording of Insured Documents Name of Insured:
FRUITLAND OWNER LLC, A Delaware limited liability company
2. The estate or interest in the Land that is insured by this policy is:
Fee as to Parcels A and B; Easements as to Parcels C and D Title is vested in:
FRUITLAND OWNER LLC, A Delaware limited liability company
PRO FORMA PRO FORMA
First American Title Insurance Company
PRO orm No. 1402.C Policy Page 6 RMA
_TA Owner's Policy (6-17-0 Policy Number: NCS-747243-SDssC
4. The Land referred to in this policy is described as follows:
Real property in the City of Los Angeles, County of Los Angeles, State of California, described as follows:
REAL PROPERTY IN THE CITY OF VERNON, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, BEING A PORTION OF PARCEL 7 AND PARCEL 8 OF PARCEL MAP NO. 24894 AS SHOWN ON MAP RECORDED IN BOOK 286, PAGES 46 THROUGH 48 OF PARCEL MAPS AND A PORTION OF LOTS 40 AND 47 OF THE 500 ACRE TRACT OF LOS ANGELES FRUIT LAND ASSOCIATES AS SHOWN ON MAP RECORDED IN BOOK 3, PAGES 156 AND 157 OF MISCELLANEOUS RECORDS, BOTH IN THE OFFICE OF THE RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS:
PARCEL A:
COMMENCING AT THE CENTERLINE INTERSECTION OF FRUITLAND AVENUE AND BOYLE AVENUE AS SHOWN ON SAID PARCEL MAP 24894, THENCE, SOUTHERLY ALONG THE CENTERLINE OF SAID BOYLE AVENUE, SOUTH 01°12'38" EAST, 434.19 FEET; THENCE, AT RIGHT ANGLES TO SAID CENTERLINE, NORTH 88°47'22" EAST, 40.00 FEET TO A POINT ON
THE EAST LINE OF SAID BOYLE AVENUE, SAID POINT ALSO BEING THE TRUE POINT OF BEGINNING FOR THIS DESCRIPTION; THENCE, NORTH 88°51'19" EAST 698.09 FEET TO A POINT ON THE EAST LINE OF SAID PARCEL 8; THENCE, SOUTHERLY ALONG THE EAST LINES OF SAID PARCEL 8 AND PARCEL 7, SOUTH 01°12'43" EAST, 410.00 FEET TO A POINT HEREINBEFORE DESCRIBED AS POINT "A"; THENCE, SOUTH 88°51'19" WEST, 698.10 FEET TO A POINT ON THE EAST LINE OF SAID BOYLE AVENUE; THENCE, NORTHERLY ALONG SAID EAST LINE, NORTH 01°12'38" WEST, 410.00 FEET TO THE TRUE POINT OF BEGINNING.
THE ABOVE DESCRIBED PARCEL OF LAND CONTAINS 286,217 SQ. FT., 6.571 ACRES MORE OR LESS.
THE ABOVE DESCRIBED PROPERTY BEING FURTHER DESCRIBED AS PARCEL B OF THAT CERTAIN CERTIFICATE OF COMPLIANCE FOR LOT LINE ADJUSTMENT RECORDED APRIL 14, 2015 AS INSTRUMENT NO. 2015-0411776 OF OFFICIAL RECORDS OF LOS ANGELES COUNTY, CALIFORNIA.
PARCEL B:
COMMENCING AT THE CENTERLINE INTERSECTION OF FRUITLAND AVENUE AND BOYLE AVENUE AS SHOWN ON SAID PARCEL MAP 24894, THENCE, SOUTHERLY ALONG THE CENTERLINE OF SAID BOYLE AVENUE, SOUTH 01°12'38" EAST, 434.19 FEET; THENCE, AT RIGHT ANGLES TO SAID CENTERLINE, NORTH 88°47'22" EAST, 40.00 FEET TO A POINT ON
THE EAST LINE OF SAID BOYLE AVENUE, SAID POINT ALSO BEING THE TRUE POINT OF BEGINNING FOR THIS DESCRIPTION; THENCE, NORTH 88°51'19" EAST 698.09 FEET TO A POINT ON THE EAST LINE OF SAID PARCEL 8; THENCE, ALONG THE VARIOUS COURSES OF SAID PARCEL 8, NORTH 01°12'43" WEST, 55.13 FEET; THENCE, NORTH 88°47'18" EAST, 187.78 FEET; THENCE, NORTH 01°05'48" WEST, 348.02 FEET TO THE NORTHEAST CORNER OF SAID PARCEL 8; THENCE, CONTINUING ALONG THE VARIOUS COURSES OF SAID PARCEL 8, SOUTH 88°54'12" WEST, 836.45 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHEASTERLY, HAVING A RADIUS OF 50.00 FEET; THENCE, SOUTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 90°06'05", AN ARC LENGTH OF 78.64 FEET TO A POINT ON THE EAST LINE OF SAID BOYLE AVENUE; THENCE, SOUTHERLY ALONG SAID EAST LINE, SOUTH 01°12'38" EAST, 354.01 FEET TO THE TRUE POINT OF BEGINNING.
THE ABOVE DESCRIBED PARCEL OF LAND CONTAINS 346,866 SQ. FT. 7.963 ACRES MORE OR LESS.
PRO FORMA PRO FORMA
First American Title Insurance Company
PRO Form No. 1402.06 Policy Page D RMA
ALTA Owner's Policy (6-17-06) Policy Number: NCS-747243-SDss0
THE ABOVE DESCRIBED PROPERTY BEING FURTHER DESCRIBED AS PARCEL C OF THAT CERTAIN CERTIFICATE OF COMPLIANCE FOR LOT LINE ADJUSTMENT RECORDED APRIL 14, 2015 AS INSTRUMENT NO. 2015-0411776 OF OFFICIAL RECORDS OF LOS ANGELES COUNTY, CALIFORNIA.
PARCEL C:
AN EASEMENT FOR STORM WATER DRAINAGE OVER THAT PORTION OF LAND DESCRIBED AS
PARCEL A OF THAT CERTAIN CERTIFICATE OF COMPLIANCE FOR LOT LINE ADJUSTMENT RECORDED APRIL 14, 2015 AS INSTRUMENT NO. 2015-0411776 OF OFFICIAL RECORDS OF LOS ANGELES COUNTY, CALIFORNIA. SAID EASEMENT IS SET FORTH, CREATED AND DESCRIBED UNDER THAT CERTAIN "STORM WATER DRAINAGE EASEMENT" RECORDED JUNE 16, 2015 AS INSTRUMENT NO. 20150711274 OF OFFICIAL RECORDS OF LOS ANGELES COUNTY, CALIFORNIA.
PARCEL D:
A NON-EXCLUSIVE EASEMENT AS CREATED BY AN "EASEMENT AGREEMENT" RECORDED MARCH 26, 1999 AS INSTRUMENT NO. 99-509974 OF OFFICIAL RECORDS OF LOS ANGELES
COUNTY, CALIFORNIA, FOR INGRESS, EGRESS AND FOR THE INSTALLATION AND
MAINTENANCE OF BELOW GROUND UTILITIES, IN, ACROSS, UPON, UNDER, OVER AND THROUGH THE SOUTHERLY 49.00 FEET OF PARCEL 4 OF SAID PARCEL MAP 24894.
APN: 6310-008-020 and 6310-008-021
NOTICE: This is a pro-forma policy furnished to or on behalf of the party to be insured. It neither reflects the present status of title, nor is it intended to be a commitment to insure.
The inclusion of endorsements as part of the pro-forma policy in no way evidences the willingness of the Company to provide any affirmative coverage shown therein.
There are requirements which must be met before a final policy can be issued in the sam orm as this pro-forma policy. A commitment to insure setting forth these requirement:
should be obtained from the Company.
PRO FORMA PRO FORMA
First American Title Insurance Company
PRO Form No. 1402.06 Policy Page 3 RMA
ALTA Owner's Policy (6-17-06) Policy Number: NCS-747243-SDss0
SCHEDULE B
File No.: NCS-747243-LA2 Policy No.: NCS-747243-SDssO
EXCEPTIONS FROM COVERAGE
This Policy does not insure against loss or damage, and the Company will not pay costs, attorneys' fees, or expenses that arise by reason of:
General and special taxes and assessments for the fiscal year 2016-2017, a lien not yet due or payable.
2. General and special taxes and assessments for the fiscal year 2015-2016.
First Installment: $55,672.37, PAID
Penalty: $5,567.24
Second Installment: $55,672.36, PAYABLE (But not delinquent if paid on or before 04/10/2016)
Penalty: $5,577.24
Tax Rate Area: 12383
A. P. No.: 6310-008-12 (Affects the herein described land with other land.) 2a. General and special taxes and assessments for the fiscal year 2015-16.
First Installment: $31,418.32, PAID
Penalty: $3,141.83
Second Installment: $31,418.30, PAYABLE (But not delinquent if paid on or before 04/10/2016)
Penalty: $3,151.83
Tax Rate Area: 12383
A. P. No.: 6310-008-13
The lien of supplemental taxes, if any, assessed pursuant to Chapter 3.5 commencing with Section 75 of the California Revenue and Taxation Code; as a result of transfer to vestee named in Schedule A; or as a result of change of ownership or new construction occurring on or after the date of said Policy.
Water rights, claims or title to water, whether or not shown by the public records.
The fact that the land lies within the boundaries of the Industrial Redevelopment Project Area, as disclosed by the document recorded November 28, 1990 as Instrument No. 90-1971672 of Official Records.
Documents) declaring modifications thereof recorded July 16, 1998 as Instrument No. 1214257 of Official Records.
The terms, provisions and easements) contained in the document entitled "Easement Agreement" recorded March 26, 1999 as Instrument No. 99-0509970 of Official Records.
The terms, provisions and easements) contained in the document entitled "Easement Agreement" recorded March 26, 1999 as Instrument No. 99-0509974 of Official Records.
PRO FORMA PRO FORMA
First American Title Insurance Company
PRO Form No. 1402.06 Policy Page 9 RMA
ALTA Owner's Policy (6-17-06) Policy Number: NCS-747243-SDssO The terms and provisions of that certain Certificate Of Compliance For Lot Line Adjustment, as executed by the City of Vernon and recorded April 14, 2015 as Instrument No. 20150411776 of Official Records.
The terms and provisions contained in the document entitled "Memorandum of Underground Structures" recorded June 12, 2015 as Instrument No. 20150696675 of Official Records.
10. The terms and provisions contained in the document entitled "Storm Water Drainage Easement" recorded June 16, 2015 as Instrument No. 20150711274 of Official Records. By and between Pechiney Cast Plate, Inc., a Delaware corporation (Grantor) and Pechiney Cast Plate, Inc., a Delaware corporation (Grantee)
11. The leasehold/tenant interest of rPlanet Earth Los Angeles, LLC, as tenant only, under that certain unrecorded lease dated August 24, 2015.
PRO FORMA PRO FORMA
First American Title Insurance Company
PRO orm No. 1402.06 Policy Page 10 RMA
_TA Owner's Policy (6-17-0 Policy Number: NCS-747243-SDss0 First American
WATER RIGHTS, SURFACE
DAMAGE ENDORSEMENT
Issued by
First American Title Insurance Company
Attached to Policy No.: NCS-747243-SDssO
File No.: NCS-747243-LA2
The Company insures against loss or damage sustained by the Insured by reason of damage to existing improvements, including lawns, shrubbery or trees, resulting from the exercise of any right to use the surface of the Land for the extraction or development of water excepted from the description of the Land or shown as a reservation in Schedule B.
This endorsement is issued as part of the policy. Except as it expressly states, it does not (i) modify any of the terms and provisions of the policy, (i) modify any prior endorsements, (iii) extend the Date of Policy, or (iv) increase the Amount of Insurance. To the extent a provision of the policy or a previous endorsement is inconsistent with an express provision of this endorsement, this endorsement controls.
Otherwise, this endorsement is subject to all of the terms and provisions of the policy and of any prior endorsements.
Date: -, 2016
First American Title Insurance Company
Dan Alie
Dennis J. Gilmore
President
Seffrey I. Patinson
Jeffrey S. Robinson
Secretary
Form 50-10103 (7-1-14) Page 10 of 22 CLTA 103.5-06 Water Rights, Surface Damage (3-9-07)
PRO FORMA PRO FORMA
First American Title Insurance Company
PRO Form No. 1402.06 Policy Page 11) RMA
ALTA Owner's Policy (6-17-06) Policy Number: NCS-747243-SDss0
ENDORSEMENT
Attached to Policy No. NCS-747243-SDss0
Issued by
First American Title Insurance Company
The Company insures against loss or damage sustained by the Insured by reason of an environmental protection lien that, at Date of Policy, is recorded in the Public Records or filed in the records of the clerk of the United States district court for the district in which the Land is located, unless the environmental This endorsement is issued as part of the policy. Except as it expressly states, it does not (i) modify any of the terms and provisions of the policy, (ii) modify any prior endorsements, (iii) extend the Date of Policy, or (iv) increase the Amount of Insurance. To the extent a provision of the policy or a previous endorsement is inconsistent with an express provision of this endorsement, this endorsement controls.
Otherwise, this endorsement is subject to all of the terms and provisions of the policy and of any prior endorsements.
American Land Title Association
Endorsement 8.2-06 (Commercial Environmental Protection Lien) Adopted 10/16/08
PRO FORMA PRO FORMA
First American Title Insurance Company
PRO Form No. 1402.06 Policy Page 12) RMA
ALTA Owner's Policy (6-17-06) Policy Number: NCS-747243-SDssO
ENDORSEMENT
Attached to Policy No. NCS-747243-SDssO
Issued by
First American Title Insurance Company
The Company insures against loss or damage sustained by the Insured if, at Date of Policy (i) the Land does not abut and have both actual vehicular and pedestrian access to and from Fruitland Avenue (the "Streets)"), (ii) the Streets) is/are not physically open and publicly maintained, or (iii) the Insured has no right to use existing curb cuts or entries along that/those portion(s) of the Streets) abutting the Land.
This endorsement is issued as part of the policy. Except as it expressly states, it does not (i) modify any of the terms and provisions of the policy, (ii) modify any prior endorsements, (iii) extend the Date of Policy, or (iv) increase the Amount of Insurance. To the extent a provision of the policy or a previous endorsement is inconsistent with an express provision of this endorsement, this endorsement controls.
Otherwise, this endorsement is subject to all of the terms and provisions of the policy and of any prior endorsements.
American Land Title Association
Endorsement 17-06 (Access and Entry)
Adopted 6/17/06
PRO FORMA PRO FORMA
First American Title Insurance Company
PRO orm No. 1402.06 Policy Page 13 RMA
LTA Owner's Policy (6-17-06 Policy Number: NCS-747243-SDss0 First American Title
UTILITY ACCESS ENDORSEMENT
Issued by
First American Title Insurance Company
Attached to Policy No.: NCS-747243-SDssO
File No.: NCS-747243-LA2
The Company insures against loss or damage sustained by the Insured by reason of the lack of a right of access to the following utilities or services: [CHECK ALL THAT APPLY] Water service Natural gas service Telephone service
Electrical power service x Sanitary sewer Storm water drainage either over, under or upon rights-of-way or easements for the benefit of the Land because of:
(1) a gap or gore between the boundaries of the Land and the rights-of-way or easements; (2) a gap between the boundaries of the rights-of-way or easements; or (3) a termination by a grantor, or its successor, of the rights-of-way or easements.
This endorsement is issued as part of the policy. Except as it expressly states, it does not (i) modify any of the terms and provisions of the policy, (i) modify any prior endorsements, (iii) extend the Date of Policy, or (iv) increase the Amount of Insurance. To the extent a provision of the policy or a previous endorsement is inconsistent with an express provision of this endorsement, this endorsement controls.
Otherwise, this endorsement is subject to all of the terms and provisions of the policy and of any prior endorsements.
Date: -, 2016
First American Title Insurance Company
Dennis J. Gilmore
President
Jeffrey I. Robinson
Jeffrey S. Robinson
Secretary
By:
Authorized Countersignature
Form 50-10047 (7-1-14) Page 13 of 22 ALTA 17.2-06 Utility Access (10-16-08)
PRO FORMA PRO FORMA
First American Title Insurance Company
PRO Form No.1402.06 A ›Policy Page 14 R MA
ALTA Owner's Policy (6-17-06) Policy Number: NCS-747243-SDssO
ENDORSEMENT
Attached to Policy No. NCS-747243-SDssO
Issued by
First American Title Insurance Company
The Company insures against loss or damage sustained by the Insured by reason of:
those portions of the Land identified below not being assessed for real estate taxes under the listed tax identification numbers or those tax identification numbers including any additional land:
Legal Description: Tax Identification Numbers:
Parcel A 6310-008-20
Parcel B 6310-008-21
the easements, if any, described in Schedule A being cut off or disturbed by the nonpayment of real estate taxes assessed against the servient estate.
This endorsement is issued as part of the policy. Except as it expressly states, it does not (i) modify any of the terms and provisions of the policy, (i) modify any prior endorsements, (iii) extend the Date of endorsemen) is income tent with an express preith of is endorsement of th endorsement controls.
Otherwise, this endorsement is subject to all of the terms and provisions of the policy and of any prior endorsements.
American Land Title Association
Endorsement 18.1-06 (Multiple Tax Parcel)
Adopted 6/17/06
PRO FORMA PRO FORMA
First American Title Insurance Company
PRO Form No. 1402.06 Policy Page 15 RMA
ALTA Owner's Policy (6-17-06) Policy Number: NCS-747243-SDssO
ENDORSEMENT
Attached to Policy No. NCS-747243-SDssO
Issued by
First American Title Insurance Company
The Company insures against loss or damage sustained by the Insured by reason of the failure of the This endorsement is issued as part of the policy. Except as it expressly states, it does not (i) modify any of the terms and provisions of the policy, (ii) modify any prior endorsements, (iii) extend the Date of Policy, or (iv) increase the Amount of Insurance. To the extent a provision of the policy or a previous endorsement is inconsistent with an express provision of this endorsement, this endorsement controls.
Otherwise, this endorsement is subject to all of the terms and provisions of the policy and of any prior endorsements.
American Land Title Association
Endorsement 25-06 (Same as Survey)
Adopted 10/16/08
PRO FORMA PRO FORMA
First American Title Insurance Company
PRO Form No. 1402.06 Policy Page 16 RMA
ALTA Owner's Policy (6-17-06) Policy Number: NCS-747243-SDss0
ENDORSEMENT
Attached to Policy No. NCS-747243-SDss0
Issued by
First American Title Insurance Company
The Company insures against loss or damage sustained by the Insured by reason of the failure of the Land to constitute a lawfully created parcel according to the subdivision statutes and local subdivision ordinances applicable to the Land.
Otherwise, this endorsement is subject to all of the terms and provisions of the policy and of any prior endorsements.
American Land Title Association
Endorsement 26-06 (Subdivision)
Adopted 10/16/08
PRO FORMA PRO FORMA
First American Title Insurance Company
PRO Form No. 1402.06 A Policy Page 17 RMA
ALTA Owner's Policy (6-17-06) Policy Number: NCS-747243-SDss0
ENDORSEMENT
Attached to Policy No. NCS-747243-SDssO
Issued By
First American Title Insurance Company
The Policy is hereby amended by deleting paragraph no. 14 (Arbitration) 4from the Conditions of said Policy.
This endorsement is made a part of the policy and is subject to all of the terms and provisions thereof nd of any prior endorsements thereto. Except to the extent expressly stated, it neither modifies any o he terms and provisions of the policy and any prior endorsements, nor does it extend the effective date of the policy and any prior endorsements, nor does it increase the face amount thereof.
F.A. Form 45 (Revised 4-90)
PRO FORMA PRO FORMA
First American Title Insurance Company
PRO orm No. 1402.06 Policy Page 18 RMA
TA Owner's Policy (6-17-0 Policy Number: NCS-747243-SDss0 First American
POLICY AUTHENTICATION ENDORSEMENT
Issued by
First American Title Insurance Company
Attached to Policy No.: NCS-747243-SDssO
File No.: NCS-747243-LA2
When the policy is issued by the Company with a policy number and Date of Policy, the Company will not deny liability under the policy or any endorsements issued with the policy solely on the grounds that the policy or endorsements were issued electronically or lack signatures in accordance with the Conditions.
This endorsement is issued as part of the policy. Except as it expressly states, it does not (i) modify any of the terms and provisions of the policy, (i) modify any prior endorsements, (iii) extend the Date of Policy, or (iv) increase the Amount of Insurance. To the extent a provision of the policy or a previous endorsement is inconsistent with an express provision of this endorsement, this endorsement controls.
Otherwise, this endorsement is subject to all of the terms and provisions of the policy and of any prior endorsements.
IN WITNESS WHEREOF, the Company has caused this endorsement to be issued and become valid when signed by an authorized officer or licensed agent of the Company.
Date: , 2016
First American Title Insurance Company
Jennis J. Gilmor
Jeffrey D. Patinon
Jeffrey S. Robinson
Secretary
By:
Authorized Countersignature
Form 50-10899 (7-1-14) Page 18 of 22 ALTA 39.0-06 Policy Authentication (4-2-13)
PRO FORMA PRO FORMA
First American Title Insurance Company
PRO Form No. 1402.06 Policy Page 19 RMA
ALTA Owner's Policy (6-17-06) Policy Number: NCS-747243-SDss0 First American
ZONING-LAND UNDER DEVELOPMENT ENDORSEMENT
Issued by
First American Title Insurance Company
Attached to Policy No.: NCS-747243-SDssO
File No.: NCS-747243-LA2
For purposes of this endorsement:
a.
any or water we eating a bater tre ord, lali diese a corint e the Plans that is or will be located on the Land, but excluding crops, landscaping, lawns, shrubbery, or trees.
b. "Plans" means those site and elevation plans made by Joseph C. Truxaw ans Associates, Inc. dated September 29, 2015, last revised January 12, 2016, designated as Job No.
XEB14061 consisting of 2 sheets.
2. The Company insures against loss or damage sustained by the Insured in the event that, at Date of Policy
a. according to applicable zoning ordinances and amendments, the Land is not classified Zone Industrial;
b. the following use or uses are not allowed under that classification: Commercial Structure C. There shall be no liability under paragraph 2.b. if the use or uses are not allowed as the result of any lack of compliance with any condition, restriction, or requirement contained in the zoning ordinances and amendments, including but not limited to the failure to secure necessary consents or authorizations as a prerequisite to the use or uses. This paragraph 2.c. does not modify or limit the coverage provided in Covered Risk 5.
3. The Company further insures against loss or damage sustained by the Insured by reason of a final decree of a court of competent jurisdiction either prohibiting the use of the Land, with any existing Improvement, as specified in paragraph 2.b. or requiring the removal or alteration of the Improvement, because, at Date of Policy, the zoning ordinances and amendments have been violated with respect to any of the following matters:
a. Area, width, or depth of the Land as a building site for the Improvement b. Floor space area of the Improvement
C. Setback of the Improvement from the property lines of the Land d. Height of the Improvement, or
e. Number of parking spaces.
4. There shall be no liability under this endorsement based on:
a. the invalidity of the zoning ordinances and amendments until after a final decree of a court of competent jurisdiction adjudicating the invalidity, the effect of which is to prohibit the use or uses;
b. the refusal of any person to purchase, lease or lend money on the Title covered by this policy.
This endorsement is issued as part of the policy. Except as it expressly states, it does not (i) modify any of the terms and provisions of the policy, (i) modify any prior endorsements, (iii) extend the Date of Policy, or (iv) increase the Amount of Insurance. To the extent a provision of the policy or a previous endorsement is inconsistent with an express provision of this endorsement, this endorsement controls.
Otherwise, this endorsement is subject to all of the terms and provisions of the policy and of any prior endorsements.
PRO PRO FORMA
First American Title Insurance Company
PRO Form No. 1402.06 Policy Page 20 RMA
ALTA Owner's Policy (6-17-06) Policy Number: NCS-747243-SDssO Date: _ 2016
First American Title Insurance Company
Damn fAther
Dennis J. Gilmore
President
Seffrey I. Potinion
Jeffrey S. Robinson
Secretary
By:
Authorized Countersignature
Form 50-10798 (7-1-14) Page 20 of 22 ALTA 3.2-06 Zoning - Land Under Development (4-2-12)
PRO FORMA PRO FORMA
First American Title Insurance Company
PRO Form No. 1402.06 Policy Page 21 RMA
ALTA Owner's Policy (6-17-06) Policy Number: NCS-747243-SDssC First American
COVENANTS CONDITIONS AND RESTRICTIONS-
LAND UNDER DEVELOPMENT - OWNER'S POLICY ENDORSEMENT
Issued by
First American Title Insurance Company
Attached to Policy No.: NCS-747243-SDssO
File No.: NCS-747243-LA2
The insurance provided by this endorsement is subject to the exclusions in Section 4 of this endorsement; and the Exclusions from Coverage, the Exceptions from Coverage contained in Schedule B, and the Conditions in the policy.
2. For purposes of this endorsement only:
a. "Covenant" means a covenant, condition, limitation or restriction in a document or instrument in effect at Date of Policy.
"Future Improvement" means a building, structure, road, walkway, driveway, curb to be constructed on or affixed to the Land in the locations according to the Plans and that by law will constitute real property, but excluding any crops, landscaping, lawn, shrubbery, or trees.
c. "Improvement" means a building, structure located on the surface of the Land, road, walkway, driveway, or curb, affixed to the Land at Date of Policy and that by law constitutes real property, but excluding any crops, landscaping, lawn, shrubbery, or trees.
d. "Plans" means the survey, site and elevation plans or other depictions or drawings prepared by GAA datedOctober 5, 2015, designated as Job No. XRP007 consisting of 8 sheets.
3. The Company insures against loss or damage sustained by the Insured by reason of:
a. A violation of an enforceable Covenant by an Improvement on the Land at Date of Policy or by a Future Improvement, unless an exception in Schedule B of the policy identifies the violation;
Enforced removal of an Improvement located on the Land or of a Future Improvement as a result of a violation of a building setback line shown on a plat of subdivision recorded or filed in the Public Records at Date of Policy, unless an exception in Schedule B of the policy identifies the violation; or
PRO FORMA PRO FORMA
First American Title Insurance Company
PRO Form No. 1402.06 Policy Page 22) RMA
ALTA Owner's Policy (6-17-06) Policy Number: NCS-747243-SDssO A notice of a violation, recorded in the Public Records at Date of Policy, of an enforceable Covenant relating to environmental protection describing any part of the Land and referring to that Covenant, but only to the extent of the violation of the Covenant referred to in that notice, unless an exception in Schedule B of the policy identifies the notice of the violation.
4. This endorsement does not insure against loss or damage (and the Company will not pay costs, attorneys' fees, or expenses) resulting from:
a. any Covenant contained in an instrument creating a lease; b. any Covenant relating to obligations of any type to perform maintenance, repair, or remediation on the Land;
C. except as provided in Section 3.c, any Covenant relating to environmental protection of any kind or nature, including hazardous or toxic matters, conditions, or substances; or contamination, explosion, fire, vibration, fracturing, earthquake or subsidence.
This endorsement is issued as part of the policy. Except as it expressly states, it does not (i) modify any of the terms and provisions of the policy, (i) modify any prior endorsements, (iii) extend the Date of Policy, or (iv) increase the Amount of Insurance. To the extent a provision of the policy or a previous endorsement is inconsistent with an express provision of this endorsement, this endorsement controls.
Otherwise, this endorsement is subject to all of the terms and provisions of the policy and of any prior endorsements.
Date:
First American Title Insurance Company
Dennis J. Gilmore
President
Jeffrey I. Robinson
Jeffrey S. Robinson
Secretary
By:
Authorized Countersignature
Form 50-10805 (7-1-14) Page 22 of 22 ALTA 9.8-06 - Covenants, Conditions and Restrictions - Land Under Dev. - Owner's Policy (4-2-12)
PRO FORMA PRO FORMA
First American Title Insurance Company
SCHEDULE 1
GUIDELINES FOR CLOSING STATEMENTS
1. Pursuant to the Assignment Agreement, Owner will pay to City the amount of $22,556,769 as consideration for the assignment of City's rights under the Purchase Agreement.
2. Under the Purchase Agreement, City has already paid to Seller the amount of $25,600,000.
Pursuant to the Second Amendment to the Purchase Agreement, the Purchase Price was reduced to $24,173,085. Accordingly, Seller owes City the amount of $1,426,915, which will be repaid to City in the form of a Promissory Note executed and delivered by Seller at Closing for the benefit of City.
3. City has also previously deposited with Escrow Agent a $600,000 earnest money deposit, of which $200,000 has been relinquished to Seller as consideration for extensions of the closing date. The remaining $400,000 of earnest money deposit shall be paid to City at Closing (i.e., the right to that earnest money deposit has not been assigned to Owner and should not show as a credit to the Buyer under the Seller/Owner Closing Statement).
4. Pursuant to the Assignment Agreement, Owner is responsible for paying any prorations/allocations of closing costs that are required to be paid by the "Buyer" under the Purchase Agreement (i.e., City is not responsible for those amounts). There is no real estate brokerage fee payable to Cushman & Wakefield in connection with this transaction, which is the obligation of "Buyer" under the Purchase Agreement; any such fee will be paid by City.
5. Pursuant to the Assignment Agreement, Owner is required to deposit at Closing into separate escrow account with Commonwealth Land Title Company the Financial Assurance Amount ($1,250,000). This is a separate escrow account that will be administered post-closing. Owner advises Escrow Agent that Tenant may deposit the same on behalf of Owner.
6. Pursuant to the Added Facilities Agreement, Tenant is required to pay City the amount of $1,000,000 at Closing as the In Lieu Fee.
7. Pursuant to the Added Facilities Agreement, Tenant is required to deposit into a separate escrow account with Commonwealth Land Title Company the Reserve Amount ($2,300,000). This is a separate escrow account that will be administered post-closing.
WEST 267545716.4
NST AMERICA First American Title Company
National Commercial Services
4380 La Jolla Village Drive, Suite 110 - San Diego, CA 92122 Office Phone: (858)410-3900Office Fax:
Buyer's Final Settlement Statement
Amended: Wednesday Feb 3, 2016 3:32 PM
Property: 3200 Fruitland Avenue, Vernon, CA File No: NCS-666223-SD Officer: Janine Hudson/AR
Settlement Date: 02/02/2016
Disbursement Date:
Print Date: 02/11/2016, 3:22 PM
Buyer: Fruitland Owner LLC
Address: 11000 Wilshire Blvd., #24710, c/o Cohen Asset Management, Inc., Attn: Bradley S. Cohen, Los Angeles, CA 90024
Seller: Pechiney Cast Plate, Inc.
Address: 4700 Daybreak Parkway, South Jordan, UT 84095
Charge Description | Buyer Charge Buyer Credit
Consideration:
Total Consideration 24,173,085.00
Deposits in Escrow:
Receipt No. 191127104 on 04/15/2015 by NORTH AMERICAN TITLE CO FBO City of 600,000.00 Vernon
Receipt No. 191127105 on 04/15/2015 by NORTH AMERICAN TITLE CO FBO City of 23,258.37 Adjustments:
Funds deposited by City/Released to Seller 25,600,000.00 Unsecured Note from Seller to City of Vernon 1,426,915.00 Extension Fees (8 @ $25,000.00 each) 200,000.00
Credit to seller for 1/2 costs of LLA 7,330.60
IBA Interest Paid 403.02
Prorations:
2nd half 2015-16 taxes (Parcel 13) 01/01/16 to 02/02/16 @$31418.30/semi 5,508.96 Partial 2nd half 2015-16 taxes (Parcel 12) 01/01/16 to 02/02/16 @$23141.94/semi 4,057.76 Commission:
Commission Paid by City at Settlement to Cushman & Wakefield 362,596.27 Title/Escrow Charges to:
Closing-Escrow Fee to First American Title Company National Commercial Services 3,250.00 Disbursements Paid:
IBA Set Up/Wire Fee to North American Title POC $70.00
Return of Excess Funds to City of Vernon 60,051.24
Totals 26,233,228.11 26,233,228.11
ANST AMERIC First American Title Company
National Commercial Services
777 South Figueroa Street, Suite 400 • Los Angeles, CA 90017 Office Phone:(213)271-1700Office Fax:(877)805-5023
Seller's Settlement Statement
Property: APN 6310-008-12, 6310-008-13, and 6310- File No: NCS-747243-LA2 008-800, Los Angeles, CA Officer: Maurice Neri/MN
Estimated Settlement Date: 02/02/2016
Disbursement Date:
Print Date: 02/01/2016, 4:27 PM
Buyer: Fruitland Owner LLC
Address:
Seller: City of Vernon
Address:
Lender: Available
Address:
New Loan No.:
Charge Description Seller Charge | Seller Credit
Consideration:
Total Consideration 22,556,769.00
Adjustments:
Initial deposit released to Seller N/A pprice 250,000.00 Credit to Seller for 1/2 costs LLA 7,330.60
Cr. Seller escrow fee w/Pechiney (San Diego) 3,250.00
Extension deposits-section 3.6 N/A to price 75,000.00
Prorations:
Partial 2nd half Taxes (6310-008-12) 01/01/16 to 02/02/16 @$23141.94/semi 4,057.76 2nd half Taxes (6310-008-13) 01/01/16 to 02/02/16 @$31418.30/semi 5,508.96 Title/Escrow Charges to:
Closing-Escrow Fee (1/2) to First American Title Company National Commercial Services 3,250.00 Disbursements Paid:
Extension deposits released 10/09/15 to Light & Power Account 75,000.00 Balance of deposit released 11/03/15 to Light & Power Account 250,000.00 Cash (X To) (From) Seller 22,554,532.88
Totals 22,892,349.60 22,892,349,60
Seller(s):
City of Vernon
By:_ see atta
Name:
Title:
CITY:
THE CITY OF VERNON
By:
Michael McCormick, Mayor
ATTEST:
Me Sala
APPROVED AS TO FORM:
Hema Patel, City Attorney
CITY/OWNER SETTLEMENT STATEMENT