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CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: Lynn Merrill, Director Subject: Resolution authorizing the Mayor to execute the Fourth Amendment to the Limited Access Easement Agreement (Temporary) between the City and Rancon Realty Fund IV to extend the term of agreement relating to the former Waterman Landfill Dept: Public Services Date December 8, 2003 OR\G\NAL Meeting Date: January 20, 2004 Reso 96-365 Reso 2000-219 Reso 2001-41 Reso-2002-376 adopted December 4, 1996 adopted July 24, 2000 adopted February 20, 2001 adopted December 2, 2002 Agreement First Agreement Second Agreement Third Agreement Recommended Motion: Adopt resolution ,<~ Contact person Lynn Merrill, Director Phone: 5140 Supporting data attached: Ward: 1 FUNDING REQUIREMENTS: Amount: 0 Source: Finance: Council Notes: ~i:lc2.(:sA-I'I Il0Jol/ Agenda Item No. J..3 .,,' . , ... , < CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION Staff Report Subject: Resolution authorizing the Mayor to execute the Fourth Amendment to the Limited Access Easement Agreement (Temporary) between the City and Rancon Realty Fund IV to extend the term of agreement relating to the former Waterman Landfill Background: On December 4, 1996 a resolution was adopted by the Mayor and Council approving the Limited Access Easement Agreement (Temporary) relating to the former Waterman Landfill. This agreement granted the City a non-exclusive limited use access easement at the Tri-City Corporate Center within the boundary of the former Waterman Landfill. The City leased the Waterman Landfill from a private party from approximately 1950 to 1960 for use as a disposal site for Municipal Solid Waste. The access is to facilitate testing and characterization of any contamination at the site and also to facilitate the development of a Remediation or Containment Plan as negotiated with the Santa Ana Regional Water Quality Control Board ("SARWQCB"). Paragraph 8.C of the agreement states: "This Agreement and City's rights pursuant to this Agreement shall automatically terminate on the earliest, ... or c) on the second anniversary of the date of this Agreement, January 14, 1999". On July 24, 2000 a resolution was adopted by the Mayor and Council approving the First Amendment to extend the termination date to March 14, 2001; on February 20, 2001, approving the Second Amendment; and on December 2, 2002 approving the Third Amendment to the Limited Access Easement Agreement (Temporary) to extend the terms of this Agreement. The purpose of this Fourth Amendment is to extend the termination date of the existing Agreement to December 31, 2005, to enable the City to complete its work on the site. Both parties agree to the necessity of extending this Agreement. Financial Impact: There is no cost to the Refuse Fund for this action. Recommendation: Adopt resolution. .- '. . 1 2 3 4 5 6 7 8 9 10 11 12 13 . . CC(Q)fV RESOLUTION NO. RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE MAYOR TO EXECUTE THE FOURTH AMENDMENT TO THE LIMITED ACCESS EASEMENT AGREEMENT (TEMPORARY) BETWEEN THE CITY AND RANCON REALTY FUND IV TO EXTEND THE TERM OF AGREEMENT RELATING TO THE FORMER WATERMAN LANDFILL BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The Mayor of the City of San Bernardino is hereby authorized to execute on behalf of said City a Fourth Amendment to the Limited Access Easement Agreement (Temporary) between the City of San Bernardino and Rancon Realty Fund IV, copy of which is attached hereto, marked Exhibit "1" and incorporated herein by reference as fully as though set forth at length. SECTION 2. The authorization to execute the above referenced Fourth Amendment is rescinded if not issued within sixty (60) days of the passage of this 14 resolution. 15 //I 16 //I 17 III 18 III 19 //I 20 //I 21 //I 22 III 23 III 24 //I 25 //I 26 III 27 III 28 III Yto,23 I/Z-O/IJ ? , . e . 17 18 19 20 21 22 23 Approved as to 24 Form and legal content: 25 26 27 .' 28 1 2 3 4 5 6 7 8 9 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE MAYOR TO EXECUTE THE FOURTH AMENDMENT TO THE LIMITED ACCESS EASEMENT AGREEMENT (TEMPORARY) BETWEEN THE CITY AND RANCON REALTY FUND IV TO EXTEND THE TERM OF AGREEMENT RELATING TO THE FORMER WATERMAN LANDFILL I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a meeting thereof, held on the day of , 2004, by the following vote, to wit: Council Members: AYES NAYS ABSTAIN ABSENT 10 ESTRADA 11 LIEN 12 MCGINNIS 13 14 15 16 DERRY SUAREZ ANDERSON MCCAMMACK Rachel G. Clark, City Clerk The foregoing resolution ,2004. is hereby approved this day of Judith Valles, Mayor City of San Bernardino JAMES F. PENMAN, City Attorney .iL .- Exhibit 1 e RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: GRESHAM, SAVAGE, NOLAN & TILDEN, LLP 600 North Arrowhead Avenue, Suite 300 San Bernardino, CA 92401-1148 Attn: Mark A. Ostoich SPACE ABOVE THIS LINE FOR RECORDER'S USE FOURTH AMENDMENT TO LIMITED ACCESS EASEMENT AGREEMENT (TEMPORARY) This Fourth Amendment to Limited Access Easement Agreement (Temporary) ("Fourth Amendment") is made this _ day of , 20_, by and between RANCON REALTY FUND IV, a California limited partnership ("RANCON"), and the CITY OF SAN BERNARDINO, a municipal corporation and a Charter City of the State of California e ("CITY"). RECITALS A. On or about January 14, 1997, RANCON and CITY entered into that certain Limited Access Easement Agreement (Temporary) ("Agreement"), which was recorded on February 7, 1997, as Document No. 1997-0044560 of San Bernardino County Official Records. B. On or about August 24, 2000, RANCON and CITY entered into a First Amendment to Limited Access Easement Agreement (Temporary), to extend the term of the Agreement. C. On or about February 22, 2001, RANCON and CITY entered into a Second Amendment to Limited Access Easement Agreement (Temporary), to extend the term of the Agreement. D. On or about December 2, 2002, RANCON and CITY entered into a Third Amendment to Limited Access Easement Agreement (Temporary), to extend the term of the Agreement. D. RANCON and CITY desire to enter into this Fourth Amendment in order to further extend the term of the Agreement from its expiration on December 31, 2003. e' K:\G286.002\DOC\Limited Access Easement Agreement-04 - 1 - e e e , .' OPERA TIVE PROVISIONS NOW, THEREFORE, in consideration of the foregoing Recitals, which Recitals are incorporated herein by reference, and of the mutual covenants contained herein, the parties hereto agree as follows: Paragraph 8 of the Agreement is hereby deleted in its entirety and the following inserted in place thereof: "8. This Agreement and City's rights pursuant to this Agreement shall automatically terminate on the earliest of (a) completion of all work identified in any Work Plan approved by SARWQCB (including the repair or replacement of any ground cover, planting, fence or structure damaged by the exercise of City's easement, all as provided in paragraph 5), (b) material default by City under this Agreement, or (c) on December 31,2005. Without limiting the generality of the foregoing, City shall exercise its rights and perform its obligations under this Agreement diligently and in good faith so the intent of this Agreement can be attained at the earliest reasonable time. On termination of this Agreement, City shall take such steps and execute such documents, including documents in recordable form, as Rancon may require to evidence the termination of this Agreement and the easement created in this Agreement." Except as amended by the terms of this Fourth Amendment, the Agreement, as amended by the First, Second and Third Amendments, shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Fourth Amendment to Limited Access Easement Agreement (Temporary) on the day and date first above shown. [SIGNATURES FOLLOW] N:\G286-002\DOC\Limited Access Easement Agreement-G3.doc - 2 - iUU;--- e e e I' , CITY OF SAN BERNARDINO By: Mayor 300 North "0" Street San Bernardino, CA 92418 Altn: City Administrator ATTEST: By: City Clerk APPROVED AS TO FORM AND LEGAL CONTENT: (~ N:\G286.002\DOC\Limited Access Easement Agreement-D3.doc - 3- RANCO:'\ REALTY FUND IV, a California limited partnership By: Rancon Financial Corporation, General Partner By: Glenborough Inland Realty Corporation, a California corporation Its Attorney-in-Fact By: Its: Glenborough Corporation 400 South El Camino Real San Mateo, California 94402-1708 Altn: Senior Property Manager -AND- Tri-City Corporate Center 485 Carnegie Drive San Bernardino, California 92408 Altn: Asset Manager e e e , .' STATE OF ) ) ss ) COUNTY OF On ,20_, before me, the undersigned, a Notary Public In and for said County and State, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that executed the same in authorized capacities, and that by _ signature on the instrument the person, or entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. NOTARY PUBLIC STATE OF ) ) ss ) COUNTY OF On ,20_, before me, the undersigned, a Notary Public In and for said County and State, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that executed the same in authorized capacities, and that by _ signature on the instrument the person, or entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. NOTARY PUBLIC N:\G286-002\DOC\Limited Access Easement Agreement-03.doc - 4- . , , , CITY OF SAN BERNARDINO Interoffice Memorandum CITY CLERK'S OFFICE Records and Information Management (RIM) Program DATE: January 27,2004 TO: Judy Johnson, Senior Secretary FROM: Michelle Taylor, Senior Secretary RE: Transmitting Documents for Signature - Resolution 2004-17 At the Mayor and Common Council meeting of January 20, 2004, the City of San Bernardino adopted Resolution 2004-17 - Resolution authorizing the Mayor to execute the fourth amendment to the Limited Access Easement Agreement (Temporary) between the City and Rancon Realty Fund IV to extend the term of the agreement relating to the former Waterman Landfill. Attached is one (1) original agreement. Please obtain signatures in the appropriate location and return the original agreement to the City Clerk's Office as soon as possible, to my attention. Please be advised that the resolution and agreement will be null and void if not executed within 60 days, or by March 22, 2004. If you have any questions, please do not hesitate to contact me at ext. 3206. Thank you. Michelle Taylor Senior Secretary edge receipt of e above mentioned documents. gned: Please sign and return Date: " GRESHAM, SAVAGE, NOLAN & TILDEN, UP A REGISTERED LIMITED LIABILITY PARTNERSHIP LAWYERS' FOUNDED 1910 FOR THE FIRM: Mark A. Ostoich E-Mail: 600 NORTH ARROWHEAD A VENUE, SUITE 300 SAN BERNARDINO, CALIFORNIA 92401-1148 (909) 884-2171 . FACSIMILE (909) 888-2120 www.greshamsavage.com m..d'.o~toi(h@2rl'sh..ms.V.ll".{Om March 9, 2004 HAND DELIVERED Mr. Lynn Merrill Director of Public Services Department City of San Bernardino 300 North "0" Street San Bernardino, California 92418 Re: Waterman Landfill Dear Lynn: Enclosed is the fully executed Fourth Amendment to Limited Access Easement Agreement (Temporary) between Rancon Realty Fund IV and the City of San Bernardino. I would appreciate receiving a conformed copy of this document when it is recorded. Very truly yours, '-7Jl~l-1c. ~/-L./ Mark A. Ostoich, of GRESHAM, SA V AGE, NOLAN & TILDEN, LLP MAO/pmj Enclosure cc: Sandra Boyle N:\G286\002ILIrlMerriIl13 RIVERSIDE OFFICE. 3750 UNIVERSITY AVENUE, SUITE 250, P.O. Box 1240, RIVERSIDE, CA 92502-1240. (909) 684-2171 "FACSIMILE (909) 684-2150 VICTORVILLE OFFICE. 14350 CIVIC DRIVE, SUITE 120, VICTORVILLE, CA 92392. (760) 243-2889 . FACSIMILE (760) 243-0467 , OrFICE or THE CITY CLERK RACHEL G. CLARK, CM.C. - CITY CLERK 300 North "D" Street. San Bernardino. CA 92418-0001 909.384.5002. Fax: 909.384.5158 www.cLsan-bernardino.ca.us ~.., March 26, 2004 County Recorder's Office 222 W. Hospitality Lane San Bernardino, CA 92415 Attn: Recording Clerk Enclosed is the Fourth Amendment to Limited Access Easement Agreement (Temporary) for recording. When the document is recorded, please return it to the City Clerk's Office, Attn: Michelle Taylor, P.O. Box 1318, San Bernardino, CA 92402. If you have any questions, please do not hesitate to call me at (909)384-5002. Sincerely, 1 . .'. J, /1/, ct. ( I." .' 0.)1.". .... Michelle Taylor Senior Secretary Enclosure CITY OF SAN BERNARDINO ADOPTED SHARED VALUES: Integrity. Accountability. Respect for Human Dignity. Honesty OFFICE OF THE CITY CLERK RACHEL G. CLARK, C.M.C. - CITY CLERK 300 North "D" Street. San Bernardino' CA 92418-0001 909.384.5002' Fax: 909.384.5158 www.ci.san-bernardino.ca.lls ,.. July 19, 2004 Mark A. Ostoich Gresham, Savage, Nolan & Tilden, LLP 600 North Arrowhead Avenue, Suite 300 San Bernardino, CA 92401 Dear Mr. Ostoich, Enclosed is a copy of the Fourth Amendment to Limited Access Easement Agreement (Temporary) between Rancon Realty Fund IV and the City of San Bernardino, which has been recorded with the County of San Bernardino. If you have any questions, please give me a call at (909) 384-5002. Sincerely, 'J/ I' " l ,/ (t"e,," (C,- 11'---- Michelle Taylor j Senior Secretary Enclosure CITY OF SAN BERNARDINO ADOPTED SHARED VALVES: Integrity' Accountability' Respect for Human Dignity' Honesty I I' . -.., ** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT ** RESOLUTION AGENDA ITEM TRACKING FORM Meeting Date (Date Adopted): i- Le- 04 Item # Z. ~ Resolution # Vote: Ayes ;-'1 Nays -& Abstain.f:r Change to motion to amend original documents D Companion Resolutions 'ZQA -I ') Absent G- NulVVoid After: l.oO days / Resolution # On Attachments: D 3-22-oLl PUBLISH D POST D Note on Resolution of attachment stored separately: D RECORDW/COUNTY 0 By: N\.cJ1J~ ,\v-l!OJL. Date Sent to Mayor: Date of Mayor's Signature: 1- Z-Z-C:ltt I .. 2-",-0'1 1--L3-a'-( Reso. Log Updated: Seal Impressed: g...- g- Date ofClerk/CDC Signature: Date Memo/Letter Sent for Signature: I" Reminder Letter Sent: 1-"(:1-0 '"'1 Date Returned: .3 - 1G, 'Y-j Not Returned: D 2nd Reminder Letter Sent: Request for Council Action & Staff Report Attached: Yes..L No By Updated Prior Resolutions (Other Than Below): Yes No~ By Updated CITY Personnel Folders (6413, 6429, 6433,10584,10585,12634): Yes No ---L-. By Updated CDC Personnel Folders (5557): Yes No / By Updated Traffic Folders (3985, 8234, 655, 92-389): Yes No 7 By_ - Copies Distributed to: Animal Control D EDA D Information Services D City Administrator D Facilities D Parks & Recreation D City Attorney 16 Finance D Police Department D Code Compliance D Fire Department D Public Services B" Development Services D Human Resources D Water Department D Others: z.. Notes: Ready to File: _ Date: Revised 12/18103