Exhibit 10.74
EXHIBIT E
ENVIRONMENTAL SERVITUDE AGREEMENT
THIS ENVIRONMENTAL SERVITUDE AGREEMENT ("Agreement") dated as of the
____ day of ________, 2002, by and between Xxxxxx Chemicals and Plastics
Operating Limited Partnership, a Delaware limited partnership ("BCP"), and
Xxxxxx Chemical, Inc., a New Jersey corporation ("BCI").
ARTICLE 1
PRELIMINARY STATEMENTS
1.1 BCP owns that certain real property located in Ascension Parish,
Louisiana (the "BCP Site") as described as (here describe BCP's Geismar
Site).
1.2 On June 11, 1998, in United States x. Xxxxxx Chemicals and Plastics
Operating Limited Partnership, No. 94-2592-A-M2, the United States
District Court for the Middle District of Louisiana entered a consent
decree (the "Consent Decree") between BCP, the United States and the
State of Louisiana.
1.3 The Consent Decree requires BCP to implement at the BCP Site certain
"Interim Measures," including but not limited to:
1.3.1 The operation of a shallow groundwater recharge and recovery
system (the "Groundwater Recovery System"), including but not
limited to the five (5) recovery trenches and seven (7) extraction
xxxxx identified on Exhibit A, attached hereto and made a part
hereof, and the groundwater recharge units ("GRUs") depicted upon
Exhibit A.
1.3.2 Operation of a Norco Aquifer Monitoring and Containment System
(the "Norco System") consisting of a system of extraction and
monitoring xxxxx in the locations on the BCP Site identified on
Exhibit A.
1.3.3 Construction and operation of an "S" Zone Groundwater Recovery
System (the "S Zone System") consisting of one or more vertical or
horizontal xxxxx or an alternate system approved by the Louisiana
Department of Environmental Quality ("LDEQ") and United States
Environmental Protection Agency ("EPA").
1.3.4 Remediation of mercury contaminated soils at a portion of the BCP
Site in the general area depicted on Exhibit A.
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1.3.5 A Remediation Investigation ("RI") and a Remediation Measures
Study ("RMS") at a portion of the BCP Site and the performance of
appropriate investigation and remediation measures required or
approved by LDEQ and EPA.
1.4 As of the date even herewith BCI and BCP entered into an Environmental
Allocation Agreement (the "Environmental Allocation Agreement") whereby
BCI agreed to (i) perform certain of BCP's obligations for the Interim
Measures under the Consent Decree and (ii) investigate and remediate any
contamination of soil or groundwater, existing prior to the date hereof,
at or emanating from any solid waste management unit ("SWMU") at the BCP
Site identified in Attachment A to the Consent Decree.
1.5 The parties desire to enter into this Agreement for the purpose of
establishing the rights and obligations of BCI with respect to the use
of the BCP Site for performance of its obligations, under the
Environmental Allocation Agreement. The parties also desire to enter
into this Agreement to set forth the rights of BCP and any subsequent
owners of the BCP Site.
1.6 Wherever this Agreement refers to a subsequent owner of the BCP Site or
to a sale of the BCP Site, such reference shall include any subsequent
owners of all or a portion of the BCP Site and/or any sale of all or any
portion of the BCP Site.
NOW THEREFORE, in consideration of the mutual covenants and conditions
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, BCP and BCI agree as follows:
ARTICLE 2
SERVITUDES
2.1 General Access Servitude. BCP hereby grants to BCI a servitude over,
upon, across, and above the BCP Site for ingress to and egress from, and
use of, the BCP Site as BCI may reasonably require to perform its
obligations under the Environmental Allocation Agreement. To the extent
access to the BCP Site is required by EPA or LDEQ under Paragraph 67 of
the Consent Decree for any purpose relating to the implementation,
monitoring or enforcement of the Consent Decree, such servitude of
access shall extend also to the EPA or LDEQ and their representatives,
including contractors.
2.2 Groundwater Recovery System. BCP grants to BCI a servitude to operate,
construct, build, replace, repair and maintain the Groundwater Recovery
System at or upon the BCP Site, provided, however, that BCI will bear
the risk of all existing site conditions, including but not limited to,
the possible existence of underground facilities.
2.3 Norco System. BCP grants to BCI a servitude to operate, construct,
build, replace, repair and maintain the Norco System at or upon the BCP
Site.
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2.4 S Zone System. BCP grants to BCI a servitude to operate, construct,
build, replace, repair and maintain the S Zone System at or upon the BCP
Site.
2.5 RI / RMS / SWMUs. BCP grants to BCI a servitude to perform the RI and
RMS at or upon the BCP Site and to conduct an investigation of the soils
and / or groundwater at or emanating from any SWMU on the BCP Site.
2.6 Remediation. BCP grants to BCI a servitude to conduct upon the BCP Site
such remediation of soil and groundwater as is necessary for BCI to
perform its obligations under the Environmental Allocation Agreement,
including, but not limited to, excavation of soils, management or
treatment of soils, installation of extraction and/or monitoring xxxxx,
sampling of soils and/or groundwater, extraction of groundwater,
treatment of groundwater and installation and maintenance of covers,
caps or barriers, provided, however, that BCI shall take all reasonable
steps to minimize any disruption of or material adverse impact on the
operations conducted by BCP and any subsequent owner of the BCP Site.
2.7 Utilities. BCI shall have the right and servitude to transport across
the BCP Site such utilities as are necessary for the operation of the
Groundwater Recovery System, Norco System and S Zone System, including
but not limited to water, air, telephone, electricity, steam, nitrogen
and natural gas, and for such purpose shall have the right to utilize
the existing utility lines which service the Groundwater Recovery
System, Norco System and S Zone System, and the right to make repairs,
replacements or improvements to such utility lines and the right to
install additional utility lines for this purpose, provided, however,
that the location of any such additional utility lines shall be subject
to prior approval by BCP or any subsequent owner of the BCP Site, which
shall not be unreasonably conditioned or withheld.
2.8 Relocation. To the extent it is necessary for BCI to perform its
obligations under the Environmental Allocation Agreement, BCI shall have
the right to relocate or expand any elements of the Groundwater Recovery
System, Norco System and S Zone System, to additional or alternative
portions of the BCP Site; provided, however, such relocation or
expansion shall be designed to minimize any disruption of or material
adverse impact on the BCP operations or any operations conducted by a
subsequent owner of the BCP Site; and provided, further, that such
relocation shall be subject to prior approval by BCP or any subsequent
owner of the BCP Site, which approval shall not be unreasonably withheld
or conditioned.
2.9 General Conditions Governing Servitudes. All of the rights of servitude
granted above shall be subject to the following limitations: (i) Except
in the case of emergency the rights of access to the BCP Site shall be
exercised only at reasonable times, consistent with established or
customary practices, and persons exercising rights of access to the BCP
Site shall comply with all safety and security procedures, practices and
requirements of BCP and any subsequent owner of the BCP Site (ii) the
rights of servitude granted above may be exercised by employees, agents,
contractors, subcontractors, invitees and other persons under BCI's
control and direction, but BCI shall remain liable for any
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damages caused by such persons, and (iii) any work at the BCP Site by
BCI shall be performed in compliance with applicable laws and permits
and, unless the manner of performing the work is otherwise directed by
the LDEQ or EPA, normal engineering practices.
ARTICLE 3
COVENANTS OF BCP
3.1 Interference and Designation of Access to and Use of the BCP Site. The
exercise of the servitudes herein granted shall be undertaken by BCI in
a reasonable manner which minimizes any disruption of or material
adverse impact on any operations being conducted by BCP or any
subsequent owner of the BCP Site. No owner of the BCP Site shall, at any
time, engage in any activities which unreasonably interfere with or
obstruct BCI's exercise of the servitudes herein granted. To the extent
practical and in order to give effect to the foregoing sentences, prior
to BCI's exercise of its rights hereunder and from time to time
thereafter, BCI and BCP or any subsequent owner or owners of the BCP
Site will meet and negotiate in good faith to establish the means,
methods and procedures that are reasonably required by all parties for
the exercise of their respective rights hereunder. In addition, certain
uses of the BCP Site require the consent of the owner or owners of the
BCP Site, as provided in Section 4.4, below
3.2 Sensitive Areas. BCP understands that certain areas within the BCP Site
have been designated as Sensitive Areas on Appendix C [such Sensitive
Areas are the woodlined ditch, withdraw trenches, slurry wall around
back wash ponds, the GRUs and the street, parking area and VCM Xxxxx
Xxxx 0 (xxxxxx xxxxxxxxxxxx xxx XXX xxxxxxxxxxxx xxxx) north and east of
the VCM-E control room]. BCP further understands that those Sensitive
Areas may be subject of investigation or remediation by BCI pursuant to
the Environmental Allocation Agreement. BCP agrees, on behalf of itself
and any subsequent owner of the BCP Site, that it will (i) provide BCI
with advance notice of any major construction projects that BCP or any
subsequent owner may undertake in those designated "Sensitive Areas",
which notice BCI shall treat as confidential information, (ii) not
undertake major construction projects within the Sensitive Areas without
the prior written consent of BCI, which consent shall not be
unreasonably conditioned or withheld and (iii) consult with BCI in
advance with respect to major construction projects to be undertaken in
areas of the BCP Site other than within the Sensitive Areas in order to
minimize the impact that such major construction projects may have on
BCI's implementation of its obligations under the Environmental
Allocation Agreement.
3.3 Releases. BCP, or any subsequent owner of the BCP Site, will give BCI
written notice of any reportable releases at the BCP Site at the same
time as it submits notice to applicable governmental authorities.
3.4 Deed Restrictions. If requested by BCI, BCP or any subsequent owner of
the BCP Site will execute deed restrictions that would limit the use of
the BCP Site to comparable
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industrial purposes, except for any area surrounding the
Administration Building where industrial use is not required by EPA
and LDEQ.
ARTICLE 4
COVENANTS OF BCI
4.1 Compliance With Laws. All activities hereunder shall be performed by BCI
in compliance with all applicable requirements of all applicable laws.
To the extent approved by the EPA or LDEQ, or any other governmental
entity having jurisdiction, BCI shall be entitled to base its compliance
with applicable requirements governing clean-up standards by reference
to risk-based standards for comparable industrial sites.
4.2 Damages Occurring on or to the BCP Site. BCI will repair or replace any
damage or injury on or to the BCP Site or to any improvements thereon,
and BCI will be responsible for any damages to person or other property
resulting from BCI's exercising its rights under this Environmental
Servitude Agreement.
4.3 Closure. At the end of the term of this Environmental Servitude
Agreement, BCI will remove all equipment operated by it hereunder to
slab level, plug and abandon any xxxxx according to the requirements of
applicable laws and regulations then in effect and perform such other
closures of the facilities operated by it hereunder that are required by
applicable laws and regulations then in effect.
4.4 Coordination. BCI shall provide BCP and any subsequent owner of any
affected portion of the BCP Site with prior notice of and opportunity to
comment on any material plans being submitted, material meetings or
phone calls for negotiations being conducted, or material work being
implemented pursuant to the Environmental Allocation Agreement, and BCP
and any such subsequent owner shall have the right, but not the
obligation, to participate at its own expense in any such meetings or
phone calls. BCI will provide BCP, or any subsequent owner of the BCP
Site, with a copy of any proposed work plan for any investigation or
remediation activities it proposes to conduct on the BCP Site in
sufficient time for BCP, or such subsequent owner, to prepare and submit
comments to BCI prior to submission to governmental authorities. BCI
shall be solely responsible for the proper design, construction or
completion of any such work. If any proposed investigation or
remediation activities outside the Sensitive Areas would materially and
adversely affect BCP's operations, or any subsequent owner's operations
on the BCP Site, consent to such action must first be obtained by BCI,
provided, however, that such consent shall not unreasonably be
conditioned or withheld. BCI shall conduct its activities hereunder so
as not to unreasonably interfere with or obstruct the use or development
of the BCP Site.
4.5 Insurance.
4.5.1 BCI shall provide and maintain:
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(i) Worker's Compensation Insurance at Statutory limits under the laws
of the state of Louisiana, and Employer's Liability Insurance with
limits of not less than $1,000,000, and
(ii) Comprehensive General Liability Insurance with bodily injury and
property coverage limits of not less than $10,000,000 combined
single limit per occurrence
4.5.2 The insurance to be provided pursuant to this Section may be
provided pursuant to blanket insurance policies or may be
self-insured; provided, however, in no event shall the protection
afforded by such blanket policies or self insurance be less than
otherwise required hereunder; provided further that if BCI retains
any part of the risks to be insured in this Section as a
self-insurer or under such blanket policies BCI shall have the
same liability as an insurer would have to the extent, if any,
that such retention results in insurance for less than the full
amounts required in this Section.
4.5.3 Certificates of insurance evidencing the coverage required
hereunder shall be delivered to BCP and replacement certificates
shall be delivered within ten (10) days prior to the expiration of
any of the insurance policies evidenced by such certificates.
4.5.4 BCP and any future owner of any affected portion of the BCP Site
shall be named an additional insured on all such policies of
insurance as their interests may appear.
4.6 Taxes. BCI shall pay all taxes, assessments, levies, charges, similar
impositions, imposed by any authority having direct power to tax,
including any city, parish, state or federal government, as against any
legal or equitable interest of BCI in any fixtures, equipment or
improvements operated by BCI hereunder, but not any taxes, assessments,
levies, charges, similar impositions, imposed with respect to the land
or immovables comprising the BCP Site, or any of BCP's federal, state or
local income or franchise taxes, all of which shall be paid by BCP.
ARTICLE 5
TERM
5.1 Term. The term of this Agreement and the servitudes hereby created shall
commence on the date hereof and extend until BCI has completed the
performance of the last of its obligations under the Environmental
Allocation Agreement.
5.2 Failure To Perform. The parties hereby agree that, notwithstanding
anything contained herein to the contrary, the failure, or alleged
failure, of either party to perform any or all of its respective
obligations under, or to observe any of its covenants or agreements
contained in, this grant of servitudes shall never serve or be used or
claimed as a ground for claiming or declaring that the servitudes herein
granted, or any of them, have
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terminated or are terminable by either party, it being understood and
agreed that none of such obligations, covenants or agreements is a
condition to the continued use and enjoyment of such servitudes in
accordance herewith and that any losses and damages suffered by either
party arising out of such breach of or failure to observe any or all
of such obligations, covenants and agreement shall entitle the injured
party to all available remedies, except the remedy of terminating said
servitudes, in whole or in part, which remedy is hereby waived and
released.
ARTICLE 6
MISCELLANEOUS
6.1 Successor and Assigns. Each and all of the provisions contained in this
Agreement (i) will create servitudes upon the BCP Site and will be
covenants running with the land; and (ii) will bind every person having
any fee, leasehold, or other interest in any portion of the BCP Site to
the extent that such portion is affected by any term, covenant, or
provision set forth in this Agreement.
6.2 Further Assurances. The parties agree that, upon reasonable request,
they will do such further acts and deeds, and will execute, acknowledge,
deliver and record such other document and instruments, as may be
reasonably necessary from time to time to evidence, confirm or carry out
the intent and purposes of this Agreement and to otherwise confer upon
the parties full enjoyment of their respective rights hereunder.
6.3 Interpretation. The parties agree that each party and its attorneys have
reviewed and revised this Agreement and that the normal rule of
construction, to the effect that any ambiguities are resolved against
the drafting party, will not be employed in the interpretation of this
Agreement.
6.4 Applicable Law. This Agreement will be governed by, construed under, and
enforced in accordance with the laws of the State of Louisiana,
excluding the conflicts-of-law provisions hereof.
6.5 Section Headings. Section and other headings contained in this Agreement
are for reference purposes only and will not in any way affect the
meaning or interpretation of this Agreement.
6.6 Notice. Any notice or other communication permitted or required to be
given or made by any Party to the other Party hereunder must be in
writing and may be given by hand delivery, overnight express mail,
telecopy transmission (with written confirmation of delivery), or
certified or registered U.S. mail (with postage paid and return receipt
requested). Notices will be deemed given, in the case of (i) by hand
delivery or telecopy transmission, upon receipt, (ii) overnight or
express mail, on the next business day after timely delivery to a
recognized overnight delivery service, and (iii) U.S. mail, upon the
third business day after deposit with the U.S. postal service. For
purposes of notice, the
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addresses and telecopy numbers of the parties will, until names or
addresses are changed by delivery of a notice hereunder, be set forth
below:
If to Xxxxxx Chemical, Inc.:
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: General Counsel
Telecopy: 000-000-0000
If to BCP
c/o BCP Management, Inc.
Vorys, Xxxxx, Xxxxxxx and Xxxxx, LLP
00 Xxxx Xxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Telecopy: (000)000-0000
With a copy to:
Xxxxx & Xxxxxxxx
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Mr. X. X. Xxxxxxx
Telecopy: (000)000-0000
and
Xxxxx, Day, Xxxxxx & Xxxxx
0000 XxxXxxxx Xxxxx
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xx. Xxxx X. Xxxxx
6.7 No Waiver. The failure by any party to enforce any of its rights
hereunder will not be deemed to be a waiver of such rights, unless
waiver is an express written waiver signed by the waiving party. Waiver
of any one breach will not be deemed to be a waiver of any other breach
of the same or any other provision hereof.
6.8 Severability. If any provision of this Agreement is held to be illegal,
invalid, or unenforceable under present or future applicable law, or by
any court, agency or other governmental authority, such provision will
be fully severable and this Agreement will be construed and enforced as
if such illegal, invalid or unenforceable provision had never comprised
a part hereof, and the remaining provisions of this Agreement will
remain in full force and effect and will not be affected by the illegal,
invalid, or unenforceable provision or by its severance form this
Agreement. Furthermore, in lieu of each such illegal, invalid, or
unenforceable provision there will be added automatically as part of
this Agreement a provision as similar in terms to such severed provision
as may be
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possible, such that this Agreement, with such added provision, will be
legal, valid, and enforceable in accordance with applicable law.
6.9 Counterparts. This Agreement may be executed in one or more
counterparts, all of which will be deemed to be an original.
6.10 Implied Consent. Wherever in this Agreement the consent or approval of a
party is required, unless otherwise expressly provided herein, such
consent or approval will not be unreasonably withheld, conditioned or
delayed. Except as otherwise provided in the Agreement, if a Party
having the right of consent or approval hereunder fails to give such
consent or approval or specific written grounds for disapproval within
the applicable time period (or, if no time period is provided, within 21
days of receipt of the request therefor), such Party will be deemed to
have given its approval or consent. Any request for consent or approval
will: (a) be in writing; (b) specify the section hereof which will
require that such notice be given or that consent or approval be
obtained; (c) clearly and conspicuously state that the failure to
respond to the notice or request within the stated time period will be
deemed the equivalent of the recipient's approval or consent to the
subject matter of the notice or request for approval or consent; and (d)
be accompanied by such background data as is reasonable necessary to
enable the recipient to make an informed decision thereon.
6.11 No Joint Venture. This Agreement will not create or be deemed to create
any partnership, joint venture, or joint enterprise between BCP and BCI,
and to the extent such a relationship may be deemed to have been
created, BCP and BCI hereby expressly disdain such relationship. The
only relationship created under this Agreement will be that of grantor
and grantee with respect to the servitudes established hereunder.
6.12 Assignment. This Agreement will be binding upon and will insure to the
benefit of the respective Parties hereto and such parties' successor and
assigns.
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IN WITNESS WHEREOF the Parties hereto have executed this Agreement as
of the date written below.
Signed by Xxxxxx Chemicals and Plastics Operating Limited Partnership
in Geismar, Louisiana, on ________________, 2002.
WITNESSES AS TO BCP XXXXXX CHEMCIALS AND
PLASTICS OPERATING LIMITED
PARTNERSHIP
By BCP Management, Inc., General Partner
_______________________________ By: _______________________________
Name: _____________________________
_______________________________ Title: ____________________________
ACKNOWLEDGMENT
STATE OF LOUISIANA
PARISH OF ASCENSION
On this ____th day of __________, 2002, before me, the undersigned, a
Notary Public for the aforesaid Parish, personally appeared
_____________________ the ________________ of BCP Management, Inc., in its
capacity as general partner of Xxxxxx Chemicals and Plastics Operating Limited
Partnership, a Delaware limited partnership, known to me to be the person whose
name is subscribed to the within instrument, and that he executed the foregoing
instrument in his authorized capacity as such ______________________ and he is
known to me (or proved to me on the basis of satisfactory evidence) to be the
person who executed the same and acknowledged to me that he executed the same in
his authorized capacity.
WITNESS my hand and official seal.
----------------------------------
Notary Public
My Commission Expires:
-----------
[Notarial Seal]
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IN WITNESS WHEREOF the Parties hereto have executed this Agreement as
of the date written below.
Signed by Xxxxxx Chemical, Inc. in Columbus, Ohio, on ________________,
2002.
WITNESSES AS TO BCI XXXXXX CHEMCIAL, INC.
-------------------------------
By: _______________________________
Name: _____________________________
_______________________________ Title: ______________________________
ACKNOWLEDGMENT
XXXXX XX XXXX
XXXXXX XX XXXXXXXX
Xx this ____th day of __________, 2002, before me, the undersigned, a
Notary Public for the aforesaid County, personally appeared
________________________ of Xxxxxx Chemical, Inc., a New Jersey corporation,
known to me to be the person whose name is subscribed to the within instrument,
and that he executed the foregoing instrument in his authorized capacity as such
__________________________ (title) and he is known to me (or proved to me on the
basis of satisfactory evidence) to be the person who executed the same and
acknowledged to me that he executed the same in his authorized capacity.
WITNESS my hand and official seal.
----------------------------------
Notary Public
My Commission Expires: _____________
[Notarial Seal]
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Exhibit A
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