HomeMy WebLinkAbout28- Public Services CITY OF SAN BERNARDINO — REQUEST FOR COUNCIL ACTION
From: Lynn Merrill,Director Subject Resolution authorizing the Mayor to execute the
First Amendment to Limited Access Easement
Dept: Public Services Agreement (Temporary) between the City and Rancon
Realty Fund IV to extend term of agreement relating to
Date: June 20, 2000 the former Waterman Landfill.
Council Meeting Date: July 24, 2000
Synopsis of Previous Council Action
Reso 96-365 adopted December 4, 1996
Recommended Motion:
Adopt resolution
Lynn Merrill
Contact person: Lynn Merrill Phone: 5140
Supporting data attached: Staff Report,Resolution,Agreement Ward:
FUNDING REQUIREMENTS:
Amount: 0
Source:
Finance
Council Notes:
Agenda Item No. �
7/a q ao0o
CITY OF SAN BERNARDINO — REQUEST FOR COUNCIL ACTION
STAFF REPORT
SUBJECT
Resolution authorizing the Mayor to execute the First Amendment to Limited Access Easement
Agreement (Temporary) between the City and Rancon Realty Fund IV to extend term of
agreement relating to the former Waterman Landfill.
BACKGROUND
On December 2, 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
8.0 of the agreement states:
"This Agrwnent and City's rights pursuant to this Agrwnerff shall automatically terminate
on the earliest, ... or c)on the saved annwi wry of the date of this Agmwuit,january 14, 1999'
The purpose of this First Amendment is to extend the termination date from January 14, 1999 to
March 14, 2001. Neither City staff nor the property owner monitored the expiration date of the
Agreement. Both parties agree to the necessity of extending this Agreement
Both EMCON,the City's contractor that performs ground water monitoring, and Bryan A. Stirrat &
Associates,the City's contractor that prepares recommendation and a closure plan, are still working
on their project necessary for the proper closure of the former Waterman Landfill. Therefore, it is
necessary to extend the term stated in Paragraph 8.0 of this agreement.
FINANCIAL IMPACT
Funds for the ongoing groundwater monitoring and testing and continued work for closure of the
site are budgeted in Fiscal Year 2000/2001 Refuse Enterprise Fund.
RECOMMENDATION
It is recommended that the resolution be adopted to authorize the Mayor to execute the extension
of the agreement term between the City and Rancon Realty Fund IV to March 14, 2001.
pV
1 Resolution No.
2
RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE
3 MAYOR TO EXECUTE THE FIRST AMENDMENT TO LIMITED ACCESS
EASEMENT AGREEMENT (TEMPORARY) BETWEEN THE CITY AND
4 RANCON REALTY FUND IV TO EXTEND TERM OF AGREEMENT RELATING
TO THE FORMER WATERMAN LANDFILL.
5
6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO AS FOLLOWS:
7 SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and directed
8
9 to execute on behalf of said City a First Amendment to the Limited Access Easement Agreement
10 (Temporary) between the City of San Bernardino and Rancon Realty Fund IV, copy of which is
11 attached hereto, marked Exhibit "1" and incorporated herein by reference as fully as though set
12 forth at length.
13 SECTION 2. The authorization to execute the above referenced
14 is rescinded if it is not issued within sixty(60) days of the passage of this resolution.
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28 D
June 21,2000
1 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE
2 MAYOR TO EXECUTE THE FIRST AMENDMENT TO LIMITED ACCESS
EASEMENT AGREEMENT (TEMPORARY) BETWEEN THE CITY AND
3 RANCON REALTY FUND IV TO EXTEND TERM OF AGREEMENT RELATING
TO THE FORMER WATERMAN LANDFILL.
4
5 I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and
6 Common Council of the City of San Bernardino at a meeting thereof, held on
7 the day of , 2000, by the following vote,to wit:
8 Council Members: Ayes Nays Abstain Absent
9 ESTRADA
10 LIEN
11 McGINNIS
12
SCHNETZ
13
SUAREZ
14
15 ANDERSON
16 McCAMMACK
17
18 Rachel Clark,City Clerk
19 City of San Bernardino
20 The foregoing resolution is hereby approved this day of
21 32000.
22
23
Judith Valles, Mayor
City of San Bernardino
24 Approved as to form and
Legal content;
25 James F. Penman,City Attorney
26
BY:
27
28
June 21,2000 2
RECORDING REQUESTED BY r
AND WHEN RECORDED RETURN TO:
�r
n
GRESHAM, SAVAGE, NOLAN& TILDEN, LLP
North Arrowhead Avenue, Suite 300
Bernardino, CA 92401-1148
Attn: Mark A. Ostoich
SPACE ABOVE THIS LINE FOR RECORDER'S USE
FIRST AMENDMENT TO
LIMITED ACCESS EASEMENT AGREEMENT (TEMPORARY)
This First Amendment to Limited Access Easement Agreement (Temporary) ("First Amendment") is
made this day of , 1999, 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("CITY").
RECITALS
A. On or about January 14, 1997, RANCON and CITY entered into that certain Limited Access
'casement Agreement (Temporary) ("Agreement"), which was recorded on February 7, 1997, as Document No.
1997-0044560 of San Bernardino County Official Records.
B. RANCON and CITY desire to enter into this First Amendment in order to extend the term of the
Agreement from its expiration on January 14, 1999.
OPERATIVE 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 March 14, 2001. 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."
NA0286-0OPD000.inkM A—F—K AF Ld- - 1 - Exhibit "I"
effect. Except as amended by the terms of this First Amendment, the Agreement shall remain in full force and
IN WITNESS WI-EREOF, the parties hereto have executed this First Amendment to Limited Access
Easement Agreement (Temporary) on the day and date first above shown.
CITY OF SAN BERNARDINO RANCON REALTY FUND IV,
a California limited partnership
By: Rancon Financial Corporation,
By: General Partner
Mayor
300 North"D" Street By: Glenborough Inland Realty Corporation,
San Bernardino, CA 92418 a California corporation
Attn: City Administrator
ATTEST: Its Attorney-in-Fact
By:
By: Its:
City Clerk
Glenborough Corporation
APPROVED AS TO FORM AND 400 South El Camino Real
LEGAL CONTENT: San Mateo, California 94402-1708
Attn: Senior Property Manager
AND -
By:
City rney Tri-City Corporate Center
485 Carnegie Drive
San Bernardino, California 92408
Attn: Asset Manager
- 2 -
STATE OF )
ss
COUNTY OF )
On 1999, 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 1999, 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
NAG286-M\D0CVAnmod Accm<FAmnft Agm aiLdoc — 3 _
s�
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City of San Bernardino
Public Services Department
300 North "D" Street
San Bernardino, CA 92418
F
i
LIMITED ACCESS EASEMENT AGREEMENT
(TEMPORARY)
This LIMITED ACCESS EASEMENT AGREEMENT is made this 2nd day of
December , 1996, 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 ("City").
RECITALS
A. City previously operated a landfill (the "Waterman Landfill" or the "Site"), from
approximately 1950 to approximately 1960, adjacent to the northwest side of the former Tri-City Airport,
between the former airport and the Santa Ana River. A description of the Site is attached hereto as
Exhibit "A" and incorporated herein.
B. Rancon currently owns land known as the Tri-City Corporate Centre, including land within
the boundary of the Waterman Landfill.
C. Rancon has previously installed, at its cost and expense, 3 monitoring wells("Existing Wells")
to monitor the condition of the groundwater in the vicinity of the Site and has undertaken, at its cost and `
expense, groundwater quality sampling and analysis, with quarterly monitoring reports.
D. To facilitate the testing and characterization of any contamination at the Site and to also
facilitate the development of a remediation or containment plan under the jurisdiction of the Santa Ana
Regional Water Quality Control Board ("SARWQCB"), City and Rancon desire to enter into this Limited
Access Easement Agreement to set forth their respective agreements concerning such actions.
O:\G286\002\Document\UdAccse.T05 -I- November 7, 1996
OPERATIVE 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:
1. City and Rancon acknowledge that Rancon has previously replaced one of the Existing Wells,
which is no longer in service ("Replaced Existing Well"). City shall install 2 additional monitoring wells
("Additional Wells"), to provide additional monitoring and sampling locations of the groundwater on the
down gradient portion of the Site, at locations mutually agreed to by City and Rancon and approved by
SARWQCB. In addition, as more particularly set forth in this Agreement, City shall 1) take necessary
actions as allowed by operation of applicable law in order to enter into an agreement for the performance
of groundwater monitoring through the use of the Existing Wells, the Replaced Existing Well and the
Additional Wells; 2) conduct all required groundwater quality sampling and analysis as required or directed
by SARWQCB through the use of the Existing Wells, the Replaced Existing Well and the Additional Wells;
3) prepare or cause to be prepared all necessary reports in a timely manner as required by SARWQCB;
4) begin on-site engineering studies to test ground water, methane gas sampling and existing soil
characteristics; and 5) begin designing a cover, a gas extraction system and any other remediation system
required by SARWQCB for the Site. City shall make to any and all appropriate government agencies any
and all reports required in connection with such monitoring. In addition, City shall reimburse Rancon for
t
one-half the cost of replacement of the Replaced Existing Well on the date of execution of this Agreement
by both City and Rancon, and shall also bear the entire cost of installing the Additional Wells. In addition,
for so long as this Agreement is in effect, City and Rancon shall equally share all costs associated with
quarterly sampling and analysis and preparation of reports as required by SARWQCB from the Existing
Wells, the Replaced Existing Well and the Additional Wells.
2. Before submitting any plan for the work to be conducted under this Agreement ("Work Plan")
to SARWQCB, City shall submit the same to Rancon for review and approval and Rancon shall have 10
business days after receipt of the Work Plan, to review and approve the same. In the event of the
disapproval of any Work Plan by Rancon, City and Rancon shall cooperate in good faith in making such
revisions to such Work Plan as shall be necessary to facilitate Rancon's approval of the same. Without
limiting the generality of the foregoing, each Work Plan shall set forth in detail the work to be performed
by City, the dates on which City wishes to perform the work, the portions of the Site which shall be
involved in the work and the names and business addresses of City's agents who shall require access to the
Site in order to perform the work.
0:\G286i002\Document\LtdAccu.T05 -2-
November 7, 1996
3. Rancon shall have the right to have one or more of its agents present to monitor all activities
of City and its agents at the Site. In addition, Rancon shall have immediate access to all sampling locations,
including drilling locations and laboratories, and may take split samples. City shall keep Rancon apprised
of all sampling activities at the Site, so Rancon may arrange to observe any sampling and take split samples.
In addition, City shall provide Rancon drafts of all reports and other documentation resulting from activities
under this Agreement, in draft form, and Rancon shall have 10 business days after receipt of each draft, to
provide input regarding such draft to City before City finalizes the same. Although City shall have final
discretion regarding such reports and/or other documentation, City shall consider in good faith any input
from Rancon.
4. Except as otherwise provided in this Agreement with respect to the sharing between City and
Rancon of quarterly sampling, analysis and reporting costs as set forth in paragraph 1, City shall bear the
entire cost of and shall timely pay or cause to be paid all contractors, subcontractors and materialmen who
are involved in performing any work under this Agreement and shall indemnify, defend and hold harmless
Rancon and its agents, successors and assigns, from and against any and all liability for the cost of the same.
Before beginning any work under this Agreement, City shall allow Rancon the opportunity to post a Notice
of Non-Responsibility for any such work. Immediately on completion of any such work, City shall provide
Rancon a properly completed Notice of Completion, in recordable form, and if a cessation of labor occurs
at any time before completion of such work and continues for 30 calendar days, then City shall also
immediately prepare and deliver to Rancon a properly completed Notice of Cessation, in recordable form.
5. To enable City to achieve the intent of this Agreement, Rancon hereby grants City a
non-exclusive limited use access easement over the Site. In the exercise of such easement, City shall use
i
as little of the Site as reasonably possible to perform the work and shall access the portions of the Site
necessary to perform the work using such routes as Rancon directs. In addition, in the exercise of such
easement, City shall take all precautions to not disturb Rancon's operations and shall repair or replace any
4
ground cover, planting, fence or structure damaged thereby. City shall give Rancon or its
successors-in-interest 48 hours notice of its intent to exercise such easement (a) unless entry is required for
monitoring or inspection purposes, (b) unless entry is required by an emergency or by what is reasonably
thought to be an emergency, (c) unless notice is attempted to be given and after reasonable effort cannot be
completed, or (d) unless requested to enter the Site by Rancon representatives.
6. In order to facilitate Rancon's operations at the Site, Rancon shall have the right from time
to time, in its sole discretion, to cause City to narrow the scope of the easement referred to in paragraph 5
0:\G296\002\Document\LtdAccas.T05 -3- November 7, 1996
and relocate the Existing Wells, the Replaced Existing Wells, the Additional Wells, and any other facilities
installed pursuant to this Agreement, to different locations on the Site; provided, however, as follows:
a. Rancon shall pay the cost of developing plans and specifications for the relocation of
the affected facilities and for obtaining approval of such relocation from SARWQCB or any other public
agency having jurisdiction.
b. Rancon shall pay the cost of preparing any legal descriptions required for the different
locations of the affected facilities and for preparing any amendment of this Agreement required to (i) create
a new easement of a narrower scope and (ii) terminate any portion of the easement referred to in paragraph
5 which is no longer required; and
C. Rancon shall pay the cost of relocating the affected facilities to the different locations.
7. City acknowledges that it has inspected the Site and is familiar with its present condition and
accepts the Site in its present condition for purposes of this Agreement and assumes responsibility for
personal injury to its agents or property damage resulting from the condition of the Site. In addition, City
shall indemnify, defend and hold harmless Rancon and its agents, successors and assigns, from and against
any and all damages, losses, costs, liabilities and expenses, including attorneys' fees and the fees of other
professionals, resulting from or arising out of or related in any way to any work or other activities pursuant
to this Agreement or any acts or omissions of City or its agents related in any way to this Agreement.
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 the second anniversary of the date of this Agreement. 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.
9. City and Rancon acknowledge that the remediation or containment plan ultimately approved
by SARWQCB may include a cover, a gas extraction system and other remediation systems (collectively
"Systems"). City and Rancon also acknowledge that, in that event, it shall be necessary for City to have
access to the Site for the purpose of constructing and maintaining the Systems. Therefore, on approval of
0:\G286\002\Document\LtdAccea.T05 -4- November 7, 1996
a remediation or containment plan by SARWQCB and the expiration of all applicable challenge periods, City
and Rancon shall do the following:
(a) City shall prepare legal descriptions describing the precise location of the Systems and
also describing the means of access to the locations of the Systems, for review and approval by Rancon.
In the event of any disapproval of any legal description by Rancon, City and Rancon shall cooperate in good
faith in making such revisions to such legal descriptions as shall be necessary to facilitate Rancon's approval
of the same. Without limiting the generality of the foregoing, City and Rancon acknowledge and agree that E
they shall negotiate diligently and in good faith with one another for legal descriptions covering as little of
the Site as is reasonably possible for the construction and the maintenance of the Systems and also for
locations of the Systems which, to the greatest reasonable extent, shall not disturb Rancon's operations at
the Site, as those operations are known as of the date the legal descriptions are prepared;
(b) City and Rancon shall enter into a Limited Access Easement Agreement substantially
in the form of the document attached hereto as Exhibit "B" and incorporated herein; and
(c) City shall execute such documents, including documents in recordable form,as Rancon
shall require to evidence the termination of this Agreement.
10. This Agreement shall run with the land and shall inure to the benefit of and bind the respective
successors and assigns of City and Rancon. !
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11. In exercising any discretion given in this Agreement, the exercising party shall act reasonably
x
and in good faith.
12. Execution of this Agreement shall not be deemed to be an acknowledgement or acceptance
of liability for soil or groundwater contamination by either City or Rancon.
13. Notifications, requests and other formal communications between City and Rancon shall be
deemed proper and complete when either party has (a) personally delivered a copy of the communication,
(b) sent the communication by overnight courier service or (c) sent the communication by facsimile, to the
address for notice set forth on the signature page of this Agreement. The sending party shall be deemed
to have communicated with the other party when the other party has either received or rejected the
communication. Facsimile communications should be deemed received when machine confirmation of
receipt has been received by the sending party.
IN WITNESS WHEREOF, the parties hereto have executed this Limited Access Easement Agreement
on the day and date first above shown.
[SIGNATURES FOLLOW]
0:\G296\002\Documeai\LtdAccss.TO5 -5- November 7, 1996
City of San Bernardino
By:
Mayor
300 North "D" Street
San Bernardino, CA 92418
Attention: City Administrator
Attest:
By: (� ,L
City Jerk
Approved as to form
and legal content:
By:
qty Attorney
[ADDITIONAL SIGNATURES FOLLOW]
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3
0:\G286\002\Documetg\LtdAecss.T05 November 7, 1996
RANCON REALTY FUND IV,
a California limited partnership
By: Rancon Financial Corporation, I
General Partner
By: Glenborough Inland Realty
Corporation, a California corporation
Its Att ey in Fact
By
I '
Glenborough Corporation -and- Tri-City Corporate Center
400 South El Camino Real 485 Carnegie Drive
San Mateo, CA 94402-1708 San Bernardino, CA 92408
Attention: Senior Property Manager Attention: Asset Manager
0:\G296\002\Documea\lAdAccu.TO5 Novembet7, 1996
STATE OF
COUNTY OF SqJ MIa� )
On 3"tsjsA-PY (f _, 19-1Z before me the undersigned, a Notary Public in and
for said County and State, personally appeared ��(ZA L— &PY cE , personally
known to me or proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s)
on the instrument the person(s), or entity upon behalf of which the person(s) acted, executed the
instrument.
WITNESS my hand and official seal.
Jr
cAr, CRINE L Notary Public
COMM.
p!, No'ay Public—CoGfc•�c
MATEO COUNTY
MY COMM.Expires APR 3, j 908
STATE OF Iq )
COUNTY O �d )
On fl y _, 190 before me, the undersigned, a Notary Public in and f
for said County and State, personally appeared �,hcr� , personally
k�i_to_me or-_proved to me on the basis of satisfactory evidence to be the person(g) whose
name is/are subscribed to the within instrument and acknowledged to me that hefsl}eAhey-
executed the same in his/herfttleir authorized capacity(ies), and that by his/her signature(s)
on the instrument the persoe, or entity upon behalf of which the person() acted, executed the
instrument.
WITNESS my hand and official seal.
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LIM= ACCESS EASEMENT AGREEMENT
(PERMANENT)
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0:\G2M\OO2\Documcw\LWAccu.TO3 EXHIBIT "B" November 7, 1996
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City of San Bernardino
Public Services Department
300 North "D" Street
San Bernardino, CA 92418
LIMITED ACCESS EASEMENT AGREEMENT
(PERMANENT)
This LIMITED ACCESS EASEMENT AGREEMENT is made this day of
, 19 , 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 ("City").
RECITALS
A. City previously operated a landfill (the "Waterman Landfill" or the "Site"), from
approximately 1950 to approximately 1960, adjacent to the northwest side of the former Tri-City Airport,
between the former airport and the Santa Ana River.
B. Rancon currently owns land known as the Tri-City Corporate Centre, including land within
i
the boundary of the Waterman Landfill
C. Rancon previously installed 3 monitoring wells to monitor the condition of the groundwater
in the vicinity of the Site. In addition, to facilitate further testing and characterization of any contamination
at the Site and to also facilitate the development of a Remediation or Containment Plan under the jurisdiction
I
of the Santa Ana Regional Water Quality Control Board ("SARWQCB"), City and Rancon previously
entered into a Limited Access Easement Agreement ("Temporary sement Agreement") to set forth their
Po�'y g )
respective agreements concerning such actions. Pursuant to paragraph 1 of the Temporary Easement '
Agreement, City previously installed 2 additional monitoring wells to monitor the condition of the ground ;
water in the vicinity of the Site. Hereafter, the 3 monitoring wells installed by Rancon and the 2 additional
monitoring wells installed by City shall be collectively referred to as the "Monitoring Wells".
0:\G286\002\Documert\LddAccu.P02 -I- November 7, 1996
D. Pursuant to paragraph 8 of the Temporary Easement Agreement, City and Rancon have agreed
to enter into this Agreement to provide City access to specifically described portions of the Site for the
purpose of constructing, operating and maintaining a cover, a gas extraction system and other rmediation
systems (collectively "Systems")described in the Remediation or Containment Plan approved by SARWQCB
for the Site on , 19_ ("Remediation or Containment Plan") and for the further
purpose of operating and maintaining the Monitoring Wells.
E. Attached hereto as Exhibit "1" and incorporated herein by reference is the legal description
of the locations of the Systems which have been approved by City and Rancon, and the legal description of
the way of access to the Systems from the nearest public street, as well as a Site Plan depicting such
locations. In addition, attached hereto as Exhibit "2" and incorporated herein by reference is the legal
description of the locations of the Monitoring Wells which have been approved by City and Rancon, and
the legal description of the way of access to the Monitoring Wells from the nearest public street, as well
as a Site Plan depicting such locations.
OPERATIVE 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:
1. To enable the City to achieve the intent of this Agreement, Rancon hereby grants City a
non-exclusive limited use access easement over the portions of the Site described in Exhibit "1" and
Exhibit "2". The purpose of the easement is to construct and thereafter gain access to, operate and maintain
all of the Systems in good condition and repair and gain access to, operate and maintain the Monitoring
Wells in good condition and repair. In the exercise of such easement, City shall take all precautions to not
disturb Rancon's operations and shall repair or replace any ground cover, planting, fence or structure
damaged thereby. City shall give Rancon or its successors-in-interest 48 hours notice of its intent to exercise
such easement (a unless en try is required for monitoring or inspection purposes, �) unless en try is r eq uired
by an emergency or by what is reasonably thought to be an emergency, (c) unless notice is attempted to be
given and after reasonable effort cannot be completed, or (d) unless requested to enter the Site by Rancon
representatives.
2. City shall diligently take such steps as may be required from time to time to fully perform the
Remediation or Containment Plan including, without limitation, constructing, operating and maintaining all
facilities contemplated in the Remediation or Containment Plan (in accordance with the Remediation and
0:\G286\002\Document\LtdAccu.PO2 -2- November 7, 1996
NEW-
Containment Plan) and paying the full cost of the same. In addition, at the earliest reasonable time, City
shall diligently take such steps as may be required to obtain a "no further action" letter or its equivalent
from SARWQCB, indicating that no further regulatory action is required (other than the continued operation
and maintenance of the Systems and the Monitoring Wells) from SARWQCB related to the Site.
3. City acknowledges that it has inspected the Site and is familiar with its present condition and
accepts the Site in its present condition for purposes of this Agreement and assumes responsibility for
personal injury to its agents or property damage resulting from the condition of the Site. In addition, City
shall indemnify, defend and hold harmless Rancon and its agents, successors and assigns, from and against
any and all damages, losses, costs, liabilities and expenses, including attorneys' fees and the fees of other
professionals, resulting from or arising out of or related in any way to any work or other activities pursuant
to this Agreement or any acts or omissions of City or its agents related in any way to this Agreement.
4. In order to facilitate Rancon's operations at the Site, Rancon shall have the right from time
to time, in its sole discretion, to relocate or to cause City to relocate any or all of the Systems and/or any
or all of the Monitoring Wells, to different locations on the Site; provided, however, as follows:
i
(a) Rancon shall pay the cost of developing plans and specifications for the relocation of
the affected Systems and/or Monitoring Wells and for obtaining approval of such relocation from
SARWQCB or any other public agency having jurisdiction.
(b) Rancon shall pay the cost of preparing legal descriptions for the different locations of
the Systems and/or the Monitoring Wells, including the ways of access to the same, and for preparing any
amendment of this Agreement required to (i) create a new easement to facilitate such relocation and (ii)
terminate any easement no longer required after such relocation; and
(c) Rancon shall pay the cost of relocating the affected Systems and/or Monitoring Wells
to the different locations.
5. On completion of all work and other operations identified in the Remediation and Containment
Plan to the satisfaction of SARWQCB (including the repair or replacement of any ground cover, planting,
fence or structure damaged by the exercise of City's easement, as provided in paragraph 1), City and
Rancon 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. 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 obtained
at the earliest reasonable time.
0:\G286\002\Document\LtdAccu.P02 -3- November 7, 1996
6. This Agreement shall run with the land and shall inure to the benefit of and bind the respective
successors and assigns of City and Rancon.
7. Except where this Agreement provides that a party has a right to act in its sole and absolute
discretion, in exercising any discretion given in this Agreement, the exercising party shall act reasonably
and in good faith.
8. Execution of this Agreement shall not be deemed to be an acknowledgement or acceptance
of liability for soil or groundwater contamination by either City or Rancon.
9. Notifications, requests and other formal communications between City and Rancon shall be
deemed proper and complete when either party has (a) personally delivered a copy of the communication,
(b) sent the communication by overnight courier service or (c) sent the communication by facsimile, to the
address for notice set forth on the signature page of this Agreement. The sending party shall be deemed
to have communicated with the other party when the other party has either received or rejected the
communication. Facsimile communications should be deemed received when machine confirmation of
receipt has been received by the sending party.
IN WITNESS WHEREOF, the parties hereto have executed this Limited Access Easement Agreement
on the day and date first above shown.
i
[SIGNATURES FOLLOW]
0:\G286\002\DocumentU.tdAccss.P02 -4- November 7, 1996
INK-
City of San Bernardino
By.
T
300 North "D" Street
San Bernardino, CA 92418
Attention: City Administrator
Attest:
By: �;�y
City Clerk
Approved as to form
and legal content:
4 �e.g Jae
By: �r
7 •y
City Attorney
[ADDITIONAL SIGNATURES FOLLOW]
0:\G286\002\DocumeotV,tdAccsu.P02 November 7, 1996
RANCON 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 -and- Tri-City Corporate Center
400 South El Camino Real 485 Carnegie Drive
San Mateo, CA 94402-1708 San Bernardino, CA 92408
Attention: Senior Property Manager Attention: Asset Manager
O: a.Pa2 November 7, 1996
x
E
LEGAL DESCRIPTION OF LOCATION OF SYSTEMS
(to be supplied prior to execution of this Agreement)
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0:\G286\0M\DocumentWdAcca.PM EXHIEBTT "I" November 7, 1996
i
LEGAL DESCRIPTION OF LOCATION OF MONITORING WELLS
(to be supplied prior to execution of this Agreement)
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0:\G2&6\002\DocumedWdAcces.P02 EXHIBIT N2N November 7, 1996
e
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E
}
t
f
LEGAL DESCRIPTION OF SITE
(Describe only the Waterman Landfill)
I
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0:\G296\002\Documevi\LtdAcca.TO5 EXHIBIT NA" November 7, 1996
LA41YUr ILL J1 Ic
'
Being a portion of Lots 31 through 34, of' Tract M. 12034, per Book
166 of Maps, Poges 75-87, Records of Son Bernord i nr:'County, described
as:
Beginning of the southwest corner of said Lot 31, said point being
on the northerly line of Vanderbilt Way as shown on sold Map.-
thence North 0° O1 ' 02' East, a distance of 605. 58 Feet to the
point of curvature of a non- tongent curve, concave to the northwest,
having a radius of 3013. 76 Feet, a central angle air 12* 31 ' 58', From
which the radius of said curve bears North 22° 06' 58' West;
i
thence northeasterly along sold curve, on arc distance of 659.22
Feet:
thence South 89° 44 ' 02' East, a distance of 352.90 Feet:
thence North I5° 38' 34' East, a distance of 412.81 feet to the
point of curvature of a non- tangent curve, concave to the northwest,
having a radius of 3013. 76 Feet, a central angle of 2° 20' 38', from
which the radius of said curve bears North 460 16' 02' West:
thence northeasterly along said curve, on arc distance of 123.29
Feet :
thence North 41 ° 23' 20' East, a distance of 659.31 Feet :
thence South 65° 07' 34' East, a distance of 27. 83 Feet to the
point of curvature of a non- tangent curve, concave to the northeast,
having a radius of 3000. 69 Feet, a central angle of 3° 45' 40', From
which the radius of said curve bears North 26° 26' 25' East:
thence southeasterly along sold curve, an arc distance of 196. 98
Fee f:
thence South 0° Ol ' 01 ' East, a distance of 155. 00 Feet:
thence North 65° 00' 00' West, a distonce of 289. 11 Fee f.
thence South 0° Ol ' 0/ ' East, a distance of 341 . 54 Feet:
thence South 20° 00' 00' West, a distance of 550. 00 Feet:
I
thence North 89° 44 ' 02' West, a distance of 335. 00 Feet :
thence South 0° 01 ' 02' West, a distance air 644.56 feet to the
point of curvature of a non-fangenf curve, concave to the southeast, s
having a radius of 1243. 00 Feet, a central angle of 29° IS' 29', From
which the radius of sold curve bears South 13° 14 ' 31 ' East, sold
curve also being the northerly line of Carnegie drive as shown on
sold Map:
thence southwesterly along sold curve, an arc distance of 634. 73
Feet ;
thence South 47° 30' 00' West, a distance of 35.83 Feet:
thence North 89° 44' ll ' West, a distance of 202. 42 Feet to the
point of curvature of a non-tongenf curve, concave to the south,
having a radius of 493. 00 Feet, a central angle of 23° 43' l5', From
which the radius of said curve bears South 24° 22' 17' West, said
curve being the northerly line of said Vanderbilt Way:
thence wester! along said curve, an arc distance of 204. 11 feet
to the POINT OF BEGINNING. `AND S
Contains 23. 967 acres, more or less. � .
0.
Exp. 6-30-00
NORTH
GRAVING SCALE: 1' 300'
CLPVF DEL TA ANGLE RAD I LAS ARC TANGEKT </
i C I 12'31'58' 3013.76' 659.22' 330.93'
C 2 02.20'38' 3013.76' 123.28' 61.65'
C 3 03'45'40' 3000.69' 196.98' 98.52'
C 4 29.15'29' 1243.00' 634.73' 324.45'
C 5 23'43'/5' 493.00' 204. 11' 103.54' 2p;• WI c'89 p'pp� J
� g
LINE BEARING D I STANCE
L I S 65.07'40'E 27.83'
L 2 S 00.01101,E 155.00'
L 3 N 00.01'02'E 42.99'
L 4 S 47.30'00'Y 35.83'
L S N 89'44'11'Y 202.42' 3A
d �t
L
LAND S�9
� ��', •00,00 f
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Exp. 6-30-00
A
N 0 3 e�
-!j• Q� 2 �t5"
OF cAo S 89.44'02'E N 89'44102'W ' 16
'352.90' 335.00'
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L A N D I F I L L 5 / T E