HomeMy WebLinkAbout20-City Administrator
CITY OF SAN 'BERNARDINO - REQUEST FOR COUNCIL ACTION
From: Fred Wilson, Assistant Administrator
Subject:
Authorization for Mayor to execute
limited access easement agreements
with Rancon Realty Fund IV
Dept: Administration
Date: November 20, 1996
ORIGINAL
Synopsis of Previous Council Action:
None
Recommended Motion:
Adopt the Resolution
~wre
Contact person: Lvnn Merrill. Environmental/Recvcling Proi.Mgr Phone 5549
Supporting data attached: Yes
Ward: 1
FUNDING REQUIREMENTS: Amount:
$25.000
Source:(Acct. No,)
527-415-5502
(Acct. DescriDtion)
Finance:~-?/~cI~~k
Council Notes:
_ Res 96-:3 ~5
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Agenda Item No, ~O
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CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
STAFF REPORT
Staff is requesting Council to authorize the Mayor to execute the attached Limited Access
Easement Agreement (Temporary) and Limited Access Easement Agreement (Permanent) for the
purpose of allowing the City to enter onto private property in order to close and maintain a
former City operated municipal solid waste landfill site.
From 1950 to approximately 1960, the City of San Bernardino leased a 19-acre site on the south
side of the Santa Ana River, east of Waterman Avenue for use as a municipal solid waste (MSW)
landfill. The site is presently located within the Tri-City Corporate Centre development. Upon
completion of landfilling operations in 1959, the site was closed according to existing closure
requirements and reconveyed to the lessor. From 1960 until approximately 1978, the site was
used as taxiways and airplane parking areas in conjunction with the former Tri-City Airport.
Current Federal and state requirements designed to protect air and ground water quality specify
that MSW landfills must be monitored for potential ground water contamination, methane gas
generation and must have an impervious cover which prevents water infiltration into the site.
The Santa Ana Regional Water Quality Control Board (SARWQCB) has directed that the
responsible party/landfill operator take appropriate actions to formally close this site and conduct
on-going monitoring of ground water quality.
Since 1987, the current property owner, Rancon Realty Fund IV, has accepted responsibility for
all monitoring activities at the site. This included conducting the necessary Solid Waste
Assessment Tests (SWAT), installation of ground water monitoring wells and preparation and
submission of quarterly monitoring reports to the SARWQCB. Because of the potential capital
costs associated with closing the landfill site, Rancon has indicated that they are no longer willing
to bear the full responsibility for the site. The City, Rancon and SARWQCB have jointly
determined that the City, as the operator of the site, is ultimately responsible for properly
closing and monitoring this site, and the SARWQCB has advised the City of this responsibility.
Since the site is on private property, it is necessary for the City and Rancon to enter into these
two Limited Access Easement Agreements. These agreements allow the City to enter the
property to perform the necessary engineering studies, to design and install the appropriate
closure mechanisms, to install additional ground water monitoring well(s) as directed by the
SARWQCB, and to conduct ground water monitoring.
As part of the access agreements, the City has agreed to reimburse Rancon for one-half the cost
of replacement of one monitoring well, previously installed by Rancon. In addition, the City
and Rancon shall share equally in all costs associated with the quarterly ground water sampling,
and preparation of the necessary reports. The cost for this item is estimated at $25,000; staff is
continuing to attempt to quantify the actual cost from Rancon.
.
Page 2
Funds in the amount of $340,000 have been budgeted for this program area in the current fiscal
year budget under Account 527-415-5502, Professional/Contractual Services. The balance
remaining in this account if this action is approved will be $315,000. It is expected that a total
of $208,000 may be expended in this fiscal year for the Waterman Landfill site, including
engineering studies and ground water monitoring. FY97-98 costs may include up to $2.0 million
for installation of closure cover, methane gas collection system and on-going monitoring and
maintenance costs. Future year costs will include site monitoring and maintenance, and may
range from $30,000 to $250,000 per year, as determined by the SARWQCB and unknown site
conditions. .
This item is the first of two items related to the Waterman Landfill, which the Council is being
asked to consider. The second item, submitted by Public Works, is authorization to enter into
an agreement with Bryan A. Stirrat and Associates to perform the necessary engineering studies
required to close the landfill.
Staff has negotiated the attached access agreements with Rancon, and Rancon has indicated their
concurrence with the agreements through the attached letter. Staff recommends adoption of the
attached resolution authorizing the Mayor to execute these agreements.
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City of San Bernardino
Public Services Department
300 North "0" Street
San Bernardino, CA 92418
. REDLlNED
1117196
LIMITED ACCESS EASEMENT AGREEMENT
(TEMPORARY)
This LIMITED ACCESS EASEMENT AGREEMENT is made this day of
, 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 landf1ll (the "Waterman Landf1l1" 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.
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Novcmbcr7, 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 instaIl2 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
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 ~ame. 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.
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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 ta,ke 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 I, City shall bear the
entire cost of and shall timely payor 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
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
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
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November7. 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 syiltelBB 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 assunies 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
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November7, 1996
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access to the Site for the purpose of constructing and maintaining the Systems. Therefore, on approval of
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
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.
11_ In exercising any discretion given in this Agreement, the exercising party shall act reasonably
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.
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November7. 1996
City of San Bernardino
By:
Mayor
300 North "D" Street
San Bernardino, CA 92418
Attention: City Admini~trator
Attest:
By:
City Clerk
Approved as to fonn
and legal content:
By:
City Attorney
[ADDITIONAL SIGNATURES FOLLOW]
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November7, 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-
400 South El Camino Real
San Mateo, CA 94402-1708
Attention: Senior Property Manager
O:IG2861002\Documcn'ILrdAcsTS .RED
Tri-City Corporate Center
485 Carnegie Drive
San Bernardino, CA 92408
Attention: Asset Manager
November7,1996
\
O:IG2861002IDocumcnIILrdAcsT5.RED
LEGAL DESCRIPTION OF SITE
(Describe only the Waterman Landfill)
EXHIBIT "A"
November 7. 1996
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UMlTED ACCESS EASEMENT AGREEMENT
(PERMANENT)
O:IG2861002IDocumenIILldAcsTS.RED
EXHIBIT "B"
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November7. 1996
LANDFILL SITE
Being 0 porl/on at Lois 31 Ihrough 34, at Trocl Nc. 12034, per Book
168 at Mops, Pages 75-87, Records or 50n BernardIno Counly, described
as:
BegInnIng 01 Ihe sculhwesf corner at sold Lcl 31, sold pO/nl being
. on Ihe norlherly line at Vonderblll Way os shown cn sold Mop:
Ihence Norlh 0001' 02' Eosl, 0 dlslonce at 606.58 teel 10 Ihe
pOlnf of curvafure of a non-Iangenf curve, concave fa fhe norfhwest,
haVIng 0 radius at 3013.76 teel, 0 cenlrol angle or 120 31' 58', tram
which Ihe radius at sold curve bears Norlh 220 06' 58' Wesl:
fhence norfheasferly along sold curve, an arc dls/once of 659.22
reel:
Ihence 50ulh 890 44' 02' Eosl, 0 dlslonce at 352.90 teel:
Ihence Norlh 150 38' 34' Eosl, 0 dlslonce at 412.81 teel 10 fhe
pOlnf of ourvafure of a non-fangenf curve, concave fa fhe norfhwesf,
haVIng 0 radius or 3013.76 teel, 0 cenlrol angle at 20 20' 38', tram
which Ihe radius at sold curve bears Norlh 460 16' 02' Wesl:
fhence norfheasferly along said ourve, on arc dls/once of /23.29
teel:
Ihence Norlh 410 23' 20' Eosl, 0 dlslonce at 659.31 reel:
Ihence Soulh 650 07' 34' Eosl, 0 dlsfonce at 27.83 teel 10 Ihe
pO/nf of curvafure of a non-fangenf curvet concave fa fhe nor/haas!,
haVIng 0 radius at 3000.69 teel, 0 cenlrol angle at 30 45' 40', tram
which Ihe radius or sold curve bears Norfh 260 26' 25' Eosl:
fhence southeasterly along sold curve, an arc dls/ance of 196,98
tee I :
Ihence Soulh 00 01' 01' Eosl, a dIstance of 155.00 teel:
f hence Norlh 650 00' 00' Wesl, o dlslonce at 289. II teel:
fhence Soulh 00 01' 01' Eosl, o dlslonce or 341.54 teel:
fhence 50ulh 200 00' 00' Wesf, o dlstonce or 550.00 teel:
Ihence North 890 44' 02' Wesf, 0 distance at 335.00 teel:
Ihence 50ulh 00 01' 02' Wesl, 0 dlslonce at 644.56 teel 10 Ihe
po/nf of curvafure of a non-fangenf curve, concave fa fhe southeasf,
having 0 radius at 1243.00 reel, 0 cenlrol angle at 290 15' 29', trcm
which Ihe radius at sold curve bears 50ulh 130 14' 31' Eosl, sold
ourve a/so beIng fhe norfherly tfne of CarnegIe drIve os shown on
sold Mop:
fhence southwesterly along SOld curve, on arc dIstance or 634.73
teef:
thence 50ulh 470 30' 00' Wesl, 0 dlslonce or 35.83 reel:
Ihence Norlh 890 44' II' Wesl, 0 dlslonce at 202.42 reel 10 Ihe
pOInt of ourvafure of a non-tangent ourve, conCQve to the soufh,
having 0 radius at 493.00 reel, 0 cenlrol angle or 230 43' 15', trom
which fhe radius at sold curve bears Soulh 240 22' 17' Wesl, sold
curve beIng Ihe norlherly lIne at sold Vonderblll Way:
thence ~esterLr along sold curve, on ore
10 Ihe POINT OF BEGINNING.
dlslonce at
reel
ContaIns 23.967 acres, more or less.
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DRAWING SCALE: I'. 300'
CURVE: DEL TA ANCLc RAG IUS ARC TAN(ENT
C / 12"3/'se' 30/3.76' 659.22' 330.93'
C 2 02.20'38" 3013.76' 123.28' 6/.65'
C3 03.45'40" 3000.69' 196.98' 98.52'
C 4 ZS"/5'29" 1243.00' 634.73' 324.45'
C5 23.43' /5" 493.00' 204. II' 103.54'
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