HomeMy WebLinkAboutCOUNTY OF ORANGE - 2007-08-06Council/Agency Meeting Held: /4
Def d/Continued to:
Approve ^D❑ Conditionally Approved ❑ Denied
dity Clerk's S-ig'n'atLW
Council Meeting Date: 8/6/2007
Department ID Number: CA 07-19
CITY OF HUNTINGTON BEACH
REQUEST FOR CITY COUNCIL ACTION
SUBMITTED TO: HONORABLE MAY R AND CITY COUNCIL MEMBERS
SUBMITTED BY: JENNIFER MCG ITY ATTORNEY
PREPARED BY: JENNIFER MCG , CITY ATTORNEY
SUBJECT: EDISON COMMUNITY PARK METHANE SETTLEMENT AGREEMENT
Statement of Issue, Funding Source, Recommended Action, Alternative Action(s), Analysis, Environmental Status, Attachment(s)
Statement of Issue: From 1957 through 1969, the County of Orange (the "County") operated a
landfill on the property that is now Edison Community Park and a portion of Kettler School. In 1971,
the County conveyed the property to the City, and later, the City conveyed 5 acres to the Huntington
Beach City School District (the "District"). In September 2002, the Orange County Health Care
Agency ordered the City and the District to install a landfill gas collection system.
In response, the City and District moved to compel the County to install the gas collection system.
After notifying the County of their intent to sue, the City, District, and County negotiated a settlement
agreement (the "Agreement").
Funding Source: Not applicable.
Recommended Action: Approve the Agreement and authorize the City Administrator to execute
the Agreement on behalf of the City.
Alternative Action(s): Do not approve the Agreement.
5-6
REQUEST FOR CITY COUNCIL ACTION
MEETING DATE: 8/6/2007 DEPARTMENT ID NUMBER: CA 07-19
Analysis: In 1957, the County purchased the 28 acres of land located at the northwest corner
of the intersection of Magnolia Street and Hamilton Avenue, known as the Cannery Street Refuse
Disposal Station. From approximately 1957 through approximately 1969, the County disposed of
approximately 900,000 cubic yards of waste on approximately 20 acres of the property.
In 1970, the County conveyed the landfill property to the City with a deed restriction (known as the
"Reverter") stating that if the property were used for any purpose other than the operation of a public
park, playground, or recreation facility for the beneficial use of all County residents, the property
would automatically revert back to the County. The Reverter may be eliminated by paying the County
an amount equal to fifty percent (50%) of the property's current fair market value.
In 1971, the City conveyed approximately 5 acres of the property to the District subject to the same
Reverter. The City developed the remaining portion of the property into Edison Community Park.
Since acquiring the 5 acres, the District has utilized the property as a portion of the playground for
Kettler School. In 2005, for reasons unrelated to the presence of methane, Kettler School was
closed.
On September 17, 2002, the Orange County Health Care Agency, which serves as the "local
enforcement agency" for landfills throughout Orange County (the "LEA"), ordered the City and the
District to monitor methane levels and implement a long-term landfill gas remediation plan. Failure to
comply with the Order would subject the City and the District to civil penalties up to $5,000 per day.
The City and District then sought to hold the County responsible for the cleanup. In March 2004, the
City and the District notified the County of its intent to file a lawsuit against the County if the County
failed to timely implement a remediation plan. In response, the parties negotiated this Agreement.
On March 5, 2007, the City Council approved the general terms of this Agreement in Closed Session.
However, pursuant to a subsequent request by the County, the terms of the defense, indemnification,
and hold harmless provisions have been modified from what the City Council approved in Closed
Session. Consequently, the Agreement is being returned to the Council for final approval.
In brief, the Agreement provides as follows:
1. The County will design, construct, maintain, and monitor a landfill gas collection system.
According to the County's estimates, it will cost the County one million two -hundred twenty-
five thousand and sixty-two dollars ($1,225,062) to design, construct, maintain, and monitor
the landfill gas system for a 30-year period.
2. The County will respond to any notices of violations or orders from any regulatory agency
concerning the landfill gas issues related to the landfill property.
3. The City and the District will maintain the surface of their respective properties, including but
not limited to maintaining all landscaping, all paved areas, and all irrigation systems.
4. The County will reimburse the City and the District for one-half oftheir past response costs,
which amounts to $45,298 to the City and $58,300 to the District. (The City has not incurred
any outside attorneys' fees because Deputy City Attorney John Fujii is handling the matter.
Division Chief/Fire Marshal Eric Engberg, retired Division Chief/Fire Marshal Chuck Burney,
Public Works Department Principal Civil Engineer Duncan Lee, and Facilities, Development,
and Concessions Manager Dave Dominguez also have been instrumental in handling this
matter.)
5. The County will defend, indemnify, and hold harmless the City and the District for any claims
respecting any work or obligation performed or to be performed under this Agreement that
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REQUEST FOR CITY COUNCIL ACTION
MEETING DATE: 8/6/2007 DEPARTMENT ID NUMBER: CA 07-19
arise out of the actions, inactions, or omissions of the County, except for any claims caused
by the active negligence or willful misconduct of the City (as to the County's obligations to
the City) or the District (as to the County's obligations to the District). -
6. The City will defend, indemnify, and hold harmless the County for any claims respecting any
work or obligation performed or to be performed under this Agreement that arise out of the
actions, inactions, or omissions of the City, except for any claims caused by the active
negligence or willful misconduct of the County.
7. The District will defend, indemnify, and hold harmless the County for any claims respecting
any work or obligation performed or to be performed under this Agreement that arise out of
the actions, inactions, or omissions of the District, except for any claims caused by the
active negligence or willful misconduct of the County.
8. At the District's request, to address any possible reuse of the Kettler School site, the County
agreed that no past use by the District violated the Reverter. The City has not given the
District any such approval in this Agreement.
The District has already approved this Agreement. The County will take this Agreement to its Board
for approval after the City approves the Agreement. However, the County has submitted to the LEA
and the LEA has approved the County's corrective action plan to address the landfill gas. Thus, even
though the parties have not yet executed the Agreement, the County has assumed responsibility for
remediation of the methane.
Strategic Plan Goal: Not applicable.
Environmental Status: Not applicable.
Attachment(s):
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ATTACHMENT 1
C NI OPWED COPY
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Rutan & Tucker, LLP
611 Anton Boulevard, Fourteenth Floor
Costa Mesa, California 92626-1931
Attention: Richard Montevideo
Recorded in Official Records, Orange County
Tom Daly, Clerk -Recorder
IIIIIIIIIIIIIIIIIIIIIIII111111111111111111111111111111111111111111111111111N0 FEE
200700060343211:30am 10/09/07
116 11 Al2 34
0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
(Space Above For Recorder's Use)
LICENSE AND SETTLEMENT AGREEMENT AFFECTING REAL PROPERTY
This License and Settlement Agreement Affecting Real Property (the "Agreement") is
made effective as of the date last executed below, by and between the County of Orange (the
"COUNTY"), the City of Huntington Beach (the "CITY") and the Huntington Beach City
School District (the "DISTRICT") (individually and collectively, the "Parry" and "Parties"), with
reference to the following facts:
RECITALS TO AGREEMENT
A. WHEREAS, the COUNTY purchased the subject property on August 23, 1957 for
public service use for refuse disposal. Such property is formerly known as the Cannery Street
Refuse Disposal Station, and is approximately 27.68 acres of land located at the northwest corner
of the intersection of Magnolia Street and Hamilton Avenue in the City of Huntington Beach,
California (the "Property") (attached hereto and marked as Exhibit "A," is a legal description of
the Property).
B. WHEREAS, the COUNTY disposed of approximately 900,000 cubic yards of
waste on approximately 20.5 acres of the Property from approximately 1957 through
approximately 1969.
EXEMPT RECORDING REQUESTED
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C. WHEREAS, in 1970, the COUNTY conveyed the Property to the CITY to be
used as a public park, playground, or recreational facility for the benefit of all residents of the
COUNTY.
D. WHEREAS, in 1971, the CITY conveyed approximately five acres of the
Property to the DISTRICT (attached hereto and marked as Exhibit `B," is a legal description of
the approximate five -acre portion of the Property conveyed to the DISTRICT (the "District
Property")
E. WHEREAS, the remaining portion of the Property not conveyed to the
DISTRICT, approximately twenty-two (22) acres of land (the "City Property"), was developed
by the CITY into a public park, playground, and recreational facility known as Edison
Community Park.
F. WHEREAS, since acquiring title to the District Property in 1971, the DISTRICT
has utilized such property as a playground for a public elementary school (generally known as
Kettler Elementary School, located at 8750 Dorsett Drive, Huntington Beach, CA 92646 (the
"Kettler Property")).
G. WHEREAS, in 2005, for reasons unrelated to the existence of landfill gas
("LFG") in subsurface soils on the Property, Kettler Elementary School was closed.
H. WHEREAS, by Notice and Order dated December 11, 2000, the Environmental
Health Division of the Orange County Healthcare Agency, which serves under the auspices of
the California Integrated Waste Management Board (the "CIWMB") as the local enforcement
agency (the "LEA") for landfills in the County of Orange, determined that the presence and
concentrations of LFG detected in monitoring probes located on the Property were above
regulatory limits; the LEA ordered that action be taken to protect the public health and safety,
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and the environment, which order resulted in the CITY and the DISTRICT installing various
LFG monitoring probes and sampling and analyzing the gas detected in these monitoring probes.
I. WHEREAS, by Notice and Order dated September 17, 2002, the LEA further
directed that the monitoring efforts conducted at the Property continue, and that a Corrective
Action Plan be submitted, along with a long-term LFG remediation plan, and further that the
Corrective Action Plan, once approved by the LEA, be implemented for the Property.
J. WHEREAS, soil gas sampling conducted by the DISTRICT in areas in and
around the classrooms at Kettler Elementary School revealed subsurface levels of LFG higher
than regulatory limits at several locations; however, testing within the classrooms did not reveal
the existence of LFG in any classroom or building at Kettler Elementary School.
K. WHEREAS, on March 26, 2004 and March 31, 2004, respectively, the
DISTRICT and the CITY sent the COUNTY notices, pursuant to Title 42 U.S.C. § 6972(a)(1)(B)
of the Resource Conservation and Recovery Act ("RCRA"), and notified the COUNTY of an
alleged imminent and substantial endangerment at the Property, alleged to result from waste
disposed of by the COUNTY on the Property, and further notified the COUNTY of the intent of
the DISTRICT and the CITY to bring suit if such endangerment was not properly and timely
abated.
L. WHEREAS, effective May 27, 2004, the COUNTY, the CITY and the
DISTRICT entered into a tolling agreement, agreeing to toll any and all applicable statutes of
limitations or repose, any claims filing requirement, laches, or any other period relating to timing
concerning the assertion of claims relating to the Property (the "Tolling Agreement"), whereby
the Tolling Agreement was amended extending the tolling period to June 30, 2006.
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M. WHEREAS, the Parties entered into the Tolling Agreement so as to pursue
settlement negotiations in an effort to resolve concerns raised by the DISTRICT and the CITY
relating to LFG emitted from the Property, and to avoid the burden and expense of litigation
while such negotiations were being pursued.
N. WHEREAS, it is the Parties' express intent that the benefits and burdens of this
Agreement shall be binding upon and inure to the benefit of all the Parties and their respective
successors, assigns, and designated third -party beneficiaries, and, specifically to the Parties'
respective successors -in -interest to the City Property, the District Property, and the Kettler
Property.
O. WHEREAS, the Parties now desire to enter into this Settlement Agreement so as
to avoid litigation over LFG emissions from the Property, all in accordance with the terms and
conditions of this Agreement.
NOW, THEREFORE, in consideration of the terms and conditions set forth herein and
for other good and valuable consideration, receipt of which is hereby acknowledged, the Parties
agree as follows:
TERMS OF AGREEMENT
1. INCORPORATION OF RECITALS.
The above referenced Recitals are hereby incorporated in their entirety into this
Agreement, and are included as terms of the Agreement.
2. DEFINITIONS.
(a) The term "City Property" shall mean and refer to that Property consisting of
approximately twenty-two (22) acres, including park improvements, Edison Community Center,
21377 Magnolia Street, Huntington Beach, CA 92646, and the Huntington Beach Fire Station
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No. 4, 21441 Magnolia Street, Huntington Beach, CA 92646, both of which are located at the
southeastern portion of the Property, but excluding that portion of the Property that is referred to
herein as the District Property.
(b) The term "District Property" shall mean and refer to that property consisting of
approximately five (5) acres of land, conveyed to the DISTRICT by the CITY in April of 1971,
as more particularly described in Exhibit "B" attached hereto.
(c) The term "Edison Community Park" shall mean and refer to the City Property
plus the approximately five (5) acre parcel that forms the northeast portion of Edison Community
Park (attached hereto and marked as Exhibit "C," is a legal description of such five -acre parcel).
(d) The term "Kettler Property" shall mean and refer to that real property commonly
known as 8750 Dorsett Drive, Huntington Beach, CA 92646, which was previously the site of an
elementary school known as Kettler Elementary School; except, however, for purposes of this
Agreement the term shall exclude the District Property.
(e) The term "Landfill CAP" shall mean and refer to that Corrective Action Plan
developed by the COUNTY pursuant to the terms of this Agreement, as may be required by the
LEA to address the Notice and Order issued by the LEA to the CITY and the DISTRICT dated
September 17, 2002.
(f) The term "Landfill Gas Collection, Control, and Monitoring System" shall mean
and include but not be limited to that system of LFG monitoring probes and wells, and/or LFG
recovery wells, piping, blowers, controls, sensors, and all other appurtenances presently existing
or to be installed and monitored, and located anywhere on the Property, and/or the Kettler
Property.
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(g) The term "Property" shall mean that property consisting of approximately 27.68
acres located at the northwest corner of Magnolia Street and Hamilton Avenue, in the City of
Huntington Beach, California, formerly known as the Cannery Street Refuse Disposal Station, as
more particularly described in Exhibit "A" attached hereto.
3. COUNTY'S PAYMENT TO CITY AND DISTRICT.
Within thirty (30) days from when this Agreement is fully executed by all the Parties and
recorded, the COUNTY shall pay the following amounts as reimbursement for past fees and
costs expended by the CITY and the DISTRICT to assess and/or mitigate LFG migrating from
the Property:
(a) To the CITY: Forty Five Thousand and Two Hundred and Ninety Eight Dollars
($45,298), made payable to the City of Huntington Beach; and
(b) To the DISTRICT: Fifty Eight Thousand and Three Hundred Dollars ($58,300),
made payable to the Huntington Beach City School District.
(c) The Parties understand and agree that the payments made herein by the COUNTY
are not to be construed as any admission of liability by the COUNTY.
4. COUNTY' S LANDFILL GAS CONTROL RESPONSIBILITIES.
(a) The COUNTY shall, at its sole cost and expense, act timely and with reasonable
diligence to design, construct, install, fully implement, maintain, monitor, and repair the Landfill
Gas Collection, Control, and Monitoring System, in accordance with the directives and
requirements of the LEA, the CIWMB, the South Coast Air Quality Management District (the
"SCAQMD"), and/or any other regulatory agency exercising its jurisdiction, and/or as required
by the Landfill CAP, all in compliance with applicable State, federal, and/or local laws and
regulations, and for so long as the LEA, the CIWMB, the SCAQMD, and/or any other regulatory
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agency exercising its jurisdiction may require. The COUNTY shall provide a draft of the
Landfill CAP to both the CITY and the DISTRICT, and shall provide them a minimum of forty-
five (45) days to review and provide comments on the same and to consent to such Landfill CAP,
whereby such consent of the CITY and the DISTRICT shall not be unreasonably withheld or
delayed.
(b) The COUNTY shall assure that any surface or subsurface work performed by the
COUNTY does not unreasonably interfere with the use and operation of Edison Community
Park, including but not limited to the existing park, recreation, and fire department uses and the
future Reconfiguration Plan (as defined in Section 4(c) below), and the District Property and/or
the Kettler Property.
(c) The COUNTY shall, at its sole cost and expense, act timely and with reasonable
diligence to take all action necessary to operate, monitor, maintain, repair, replace, modify,
expand, and upgrade the Landfill Gas Collection, Control, and Monitoring System, in accordance
with all directives and/or requirements of the LEA, the CIWMB, the SCAQMD, and/or any other
regulatory agency exercising its jurisdiction, and consistent with all applicable State, federal,
and/or local laws and regulations except that, after the execution of this Agreement, if any
enclosed structures are built on top of any part or portion of the Property where solid waste has
been buried, the COUNTY shall not be responsible for any modified or expanded Landfill CAP
and/or portions of the Landfill Gas Collection, Control, and Monitoring System, where such
modification or expansion is required by the LEA, the CIWMB, the SCAQMD, and/or any other
regulatory agency exercising its jurisdiction as a result of construction of such enclosed
structures. In such instance, the CITY, and/or the DISTRICT, depending on whether the
enclosed structure(s) is built on the City Property or the District Property, shall assume the
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responsibility for any and all costs associated with such modification or expansion of the Landfill
Gas Collection, Control, and Monitoring System, and shall assume all responsibility for the on-
going operation, maintenance, and repair of such modification or expansion of the Landfill Gas
Collection, Control, and Monitoring System. For purposes of this Agreement, the Parties
recognize and agree that the CITY's proposed Edison Park Reconfiguration Plan submitted to
the Huntington Beach Community Services Commission on or about May of 2006 (the
"Reconfiguration Plan") does not provide for the construction of any enclosed structures on top
of any part or portion of the Property where solid waste has been buried, and that any
improvements made to the City Property consistent with this Reconfiguration Plan shall not
require the CITY and/or the DISTRICT to assume any responsibility or to pay any costs
associated with the Landfill CAP and/or the Landfill Gas Collection, Control, and Monitoring
System.
(d) The COUNTY shall, at its sole cost and expense, act timely, and with reasonable
diligence, to respond to any and all notices and orders, notices of violation, regulatory citations,
or any other regulatory or enforcement action or directive (the "Regulatory Action") that may be
taken or issued by the LEA, the CIWMB, the SCAQMD, and/or any other regulatory agency
exercising its jurisdiction, concerning or in any way relating to the LFG issues related to the
Property, the Landfill CAP, and/or the Landfill Gas Collection, Control, and Monitoring System,
including as necessary, satisfying all fines and penalties that may be issued as a result of any
failure to comply with any provision of this Agreement or any Regulatory Action, excepting any
Regulatory Action or order to correct or repair the landfill surface itself, unless such damage was
directly caused by the COUNTY's activities performed under this Agreement and/or the Site
Maintenance Plan, including but not limited to the design, construction, installation,
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implementation, maintenance, operation, monitoring, repairing, expansion, modification,
replacement, or upgrade of the Landfill Gas Collection, Control, and Monitoring System.
(e) Any required modifications or expansions by the COUNTY to the Landfill Gas
Collection, Control, and Monitoring System, and any other necessary work plans or proposed
monitoring, assessment, or corrective action plans for the Property, and/or the Kettler Property,
as may be required by the LEA, the CIWMB, the SCAQMD, and/or any other regulatory agency
exercising its jurisdiction, shall be submitted to both the CITY and the DISTRICT, with the
entities being provided a minimum of forty-five (45) days to review and provide comments and
consent to the same, prior to the COUNTY's submission to the LEA, the CIWMB, the
SCAQMD, and/or any other regulatory agency exercising its jurisdiction, whereby such consent
of the CITY and the DISTRICT shall not be unreasonably withheld or delayed.
(f) The COUNTY shall continue to maintain and operate the passive venting system
and other LFG systems as may exist on the Kettler Property (the "Kettler Venting System") until
such time as the LEA determines that it is no longer necessary to maintain and operate any part
or portion of the Kettler Venting System, and at such time shall properly abandon and remove
the Kettler Venting System.
(g) The COUNTY shall, at its sole cost and expense, and within a reasonable period
of time after receiving written confirmation from the LEA that no further assessment,
monitoring, or corrective action is necessary with respect to the existence of LFG on or
migrating from the Property, remove and/or abandon any and all accessible existing or future
installed monitoring and recovery probes, wells, vent lines, trenches, and any and all other parts
or portions of the Landfill Gas Collection, Control, and Monitoring System, and shall promptly
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thereafter restore and properly compact the Property, and the impacted portions of the Kettler
Property and Edison Community Park (if any).
(h) The COUNTY shall have no responsibility for the installation and/or maintenance
of any methane gas detectors existing in any structures located on the Property and/or the Kettler
Property. Upon being advised by the CITY or the DISTRICT, or any successor -in -interest to the
City Property, the District Property, or the Kettler Property, that an alarm from a methane gas
detector had been triggered, the COUNTY shall cooperate in the investigation of the cause of the
alarm(s), and will promptly and at its sole expense make repairs or adjustments to the Landfill
Gas Collection, Control, and Monitoring System to timely mitigate the migration of LFG on such
property or properties, unless speciation testing shows that the alarm was not triggered by LFG
migration. The Parties all agree and understand that if such alarms are triggered by gas from a
source other than LFG, the CITY and/or the DISTRICT will assume responsibility for
mitigation.
(i) The COUNTY shall, at its sole cost and expense, and within sixty (60) days from
the date the last Parry executes this Agreement, prepare a Site Maintenance Plan (the "Site
Maintenance Plan") whereby the Site Maintenance Plan shall describe the ongoing obligations of
the COUNTY to maintain, repair, and/or replace any part or portion of the Landfill Gas
Collection, Control, and Monitoring System, as well as the obligations of the CITY and the
DISTRICT, as to their respective ownership interests in the City Property and the District
Property, to maintain the surface of such properties, including all landscaped areas, all paved
areas, and all irrigation systems to protect the integrity of the Property surface. The COUNTY
shall provide a draft of the Site Maintenance Plan to both the CITY and the DISTRICT, and shall
provide these entities a minimum of forty-five (45) days to review and provide comments on the
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same, and to approve the Site Maintenance Plan, whereby such approval shall not be
unreasonably withheld or delayed. The CITY and the DISTRICT shall also be responsible for
complying with standard procedures for the maintenance of the surface areas of their respective
properties. If there are any discrepancies between this Agreement and the Site Maintenance
Plan, this Agreement shall be controlling.
S. CITY AND DISTRICT'S SURFACE MAINTENANCE RESPONSIBILITIES.
Except for the necessary maintenance of any part or portion of the Landfill Gas
Collection, Control, and Monitoring System, the CITY, or its successor -in -interest to the City
Property, and the DISTRICT, or its successor -in -interest to the District Property, shall maintain
the surface of their respective properties, including but not limited to maintaining all
landscaping, all paved areas, and all irrigation systems. The CITY and the DISTRICT's surface
maintenance responsibilities will be more particularly described in that Site Maintenance Plan to
be prepared by the COUNTY and submitted to and reviewed and approved by the CITY and the
DISTRICT, (and subsequently submitted to and approved by the LEA if such approval is
required). However, upon the conveyance of all or any interest in the City Property, as to the
CITY, and of all or any interest in the District Property, as to the DISTRICT, the CITY and/or
the DISTRICT shall be relieved of any and all obligations and responsibilities under the Site
Maintenance Plan, as to such conveyed interest, and the successor -in -interest shall be notified
and provided a copy of this Agreement, and of the successor-in-interest's obligations and
responsibilities under the Site Maintenance Plan for such conveyed interest. Any such
conveyance by the CITY or the DISTRICT will fully disclose site maintenance responsibilities
and shall be recorded.
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6. THE PARTIES' JOINT RESPONSIBILITIES.
The Parties shall cooperate in the COUNTY's development of the Site Maintenance Plan,
which plan shall among other things:
(a), Identify the Party responsible for individual tasks;
(b) Include procedures for responding to inquiries or issues associated with LFG
(e.g., provide procedure to be followed in the event that LFG readings above regulatory limits
are discovered);
(c) Include procedures to assure that any surface work performed by the CITY and/or
the DISTRICT does not unreasonably interfere with the Landfill Gas Collection, Control, and
Monitoring System;
(d) Include procedures to assure that any surface or subsurface work performed by
the COUNTY does not unreasonably interfere with the use and operation of Edison Community
Park, including but not limited to the existing park, recreation, and fire department uses and the
future Reconfiguration Plan, or the District Property, and/or the Kettler Property;
(e) Include procedures to assure that any assessment, monitoring, or corrective action
to be conducted by the COUNTY, as provided for in this Agreement or otherwise, is conducted
at a time and in a manner that does not unreasonably interfere with the CITY's operations on
Edison Community Park, including but not limited to the existing park, recreation, and fire
department uses and the future Reconfiguration Plan, or the DISTRICT's operations on the
District Property or the Kettler Property. Include procedures to assure that all such work to be
conducted under the terms of this Agreement, including but not limited to installing wells,
probes, or other equipment beneath the surface of such properties, shall be conducted so as to
minimize any interference with the use and/or operations on Edison Community Park, the
District Property, and/or the Kettler Property;
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(f) Include procedures for the CITY and the DISTRICT to assure that the landfill
surface is adequately maintained to achieve sufficient positive surface drainage so as to avoid
flooding of probes and wells, and to assure that irrigation systems do not over saturate the
surface and flood the LFG system probes or wells on their respective properties; and
(g) Include a procedure for the Parties to provide updates, as needed, to the Site
Maintenance Plan to assure that it remains current and effective.
7. LICENSES TO COUNTY.
(a) The CITY hereby grants to the COUNTY a temporary license (not a grant of
easement or any other property interest therein) to enter upon and access Edison Community
Park so as to perform the necessary work provided for under this Agreement and in the Site
Maintenance Plan, for so long as necessary for the COUNTY to comply with the terms of this
Agreement or the Site Maintenance Plan. The DISTRICT hereby grants to the COUNTY a
temporary license (not a grant of easement or any other property interest therein) to enter upon
and access the District Property and the Kettler Property, so as to perform the necessary work
provided for under this Agreement and in the Site Maintenance Plan, for so long as necessary for
the COUNTY to comply with the terms of this Agreement or the Site Maintenance Plan. The
licenses provided to the COUNTY herein are conditioned upon the COUNTY providing the
CITY and the DISTRICT reasonable written notice of the COUNTY, and/or its agents or
consultants' need to access the subject properties, a description of the work to be conducted, the
dates, times, and approximate duration of such work, along with a description of any temporary
limitations on use or operations the COUNTY would reasonably request of the CITY and/or the
DISTRICT in connection with such work. The COUNTY shall perform all such work in a
manner so as to minimize the interference with the use and operations conducted or to be
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conducted on such properties. The Site Maintenance Plan will further define notification
procedures to be used for on -going routine maintenance and for emergency responses.
(b) The COUNTY and its agents accept the condition of, on, or beneath Edison
Community Park, the District Property, and the Kettler Property as may exist from time to time
without any representation or warranty of the CITY or the DISTRICT, and without any duty of
the CITY or the DISTRICT to warn of any conditions. As such, the COUNTY and its agents
agree to assume all risks associated with their entry and presence on Edison Community Park,
the District Property, and the Kettler Property. The COUNTY agrees to minimize the risks
associated with carrying out its activities on Edison Community Park, the District Property, and
the Kettler Property and shall exercise all reasonable and necessary precautions to prevent injury
as a result of such activities, including but not limited to erecting fences and barriers and posting
warning signs in or around the COUNTY's work areas. The COUNTY further agrees that any
and all work performed on Edison Community Park, the District Property, and the Kettler
Property by the COUNTY or its agents in carrying out its obligations under this Agreement shall
be at the sole cost and expense of the COUNTY, and the COUNTY agrees to keep Edison
Community Park, the District Property, and the Kettler Property free and clear of all liens related
to the COUNTY's activities.
(c) Within fifteen (15) days after substantial completion of any of its activities on
Edison Community Park, the District Property, or the Kettler Property, the COUNTY shall, at its
sole cost and expense, restore the surface of the affected area(s) to as near as reasonably
practicable to the prior condition, including the removal or all trash and construction debris. If
the COUNTY fails to do so within this 15-day period, the CITY or the DISTRICT, as to their
respective properties, may give written notice to the COUNTY of its breach. If the COUNTY
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does not commence or does not diligently pursue the work to completion within ten (10) days of
the giving of this notice, then the CITY or the DISTRICT, as to its respective properties, may
perform the work without further notice to the COUNTY and the COUNTY agrees to pay for the
full cost of such work.
(d) Pursuant to California Labor Code section 1861, the COUNTY acknowledges
awareness of California Labor Code section 3700 et seq., which requires every employer to be
insured against liability for workers' compensation; the COUNTY covenants that it will comply
with such provisions prior to commencing any of its obligations or responsibilities under this
Agreement and/or the Site Maintenance Plan. The COUNTY shall furnish to the CITY and the
DISTRICT proof of insurance for workers' compensation in an amount of not less than the State
statutory limits. The COUNTY shall require all of its contractors, consultants, and their
subcontractors to provide such workers' compensation and employer's liability insurance for all
the agents' and subcontractors' employees. The COUNTY shall furnish to the CITY and the
DISTRICT a certificate of waiver of subrogation under the terms of the workers' compensation
insurance,, and the COUNTY shall similarly require all of its agents and any of their
subcontractors to waive subrogation against the CITY, the DISTRICT, and the COUNTY.
(e) In addition to the workers' compensation insurance and the COUNTY's covenant
to defend, reimburse, hold harmless, and indemnify the CITY and the DISTRICT, the COUNTY
shall obtain and furnish to the CITY and the DISTRICT a policy of general public liability
coverage, including motor vehicle coverage, covering this Agreement and/or the Site
Maintenance Plan and any of the COUNTY's obligations or responsibilities under this
Agreement and/or the Site Maintenance Plan. This policy shall indemnify the COUNTY, its
officers, employees, and agents while acting within the scope of their duties, against any and all
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claims arising out or in connection with this Agreement and/or the Site Maintenance Plan and
any of the COUNTY's obligations or responsibilities under this Agreement and/or the Site
Maintenance Plan, and shall provide coverage in not less than the following amount: combined
single limit bodily injury and property damage, including products/completed operations liability
and blanket contractual liability, of Five Million Dollars ($5,000,000) per occurrence. If
coverage is provided under a form which includes a designated general aggregate limit, the
aggregate limit must be no less than Five Million Dollars ($5,000,000) for this Agreement and/or
the Site Maintenance Plan and any of the COUNTY's obligations or responsibilities under this
Agreement and/or the Site Maintenance Plan. The policy(ies) shall include an endorsement
naming the CITY and the DISTRICT, and their officers, elected or appointed officials,
employees, agents, and volunteers as additional insureds. The COUNTY shall furnish to the
CITY and the DISTRICT certificates of insurance subject to approval of counsel for both the
CITY and the DISTRICT evidencing the foregoing insurance coverages as required by this
Agreement; the certificates shall provide the name and policy number of each carrier and policy
and state that the policy is currently in force. The CITY and the DISTRICT or their
representatives shall at all times have the right to demand the original or a copy of all the policies
of insurance. The COUNTY shall pay, in a prompt and timely manner, the premiums on all
insurance hereinabove required.
(f) Because the COUNTY asserts that it is self -insured, the CITY and the DISTRICT
will accept a certificate of self-insurance from the COUNTY for these insurance coverages and
additional insured requirements. This certificate shall reflect the COUNTY is self -insured for
coverage in not less than the following amount: combined single limit bodily injury and
property damage, including products/completed operations liability and blanket contractual
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liability, of Five Million Dollars ($5,000,000) per occurrence and Workers' Compensation
coverage not less than the State statutory limits. This certificate shall name the CITY and the
DISTRICT as certificate holders. If the COUNTY ever replaces its self-insurance program with
insurance, then the COUNTY shall provide the CITY and the DISTRICT with the insurance and
additional insured requirements set forth above. If the COUNTY ever replaces a part of its self-
insurance program with insurance, or if the insurance contains a self-insurance retention,
deductible, or any other form of limitation on the required coverage, then the COUNTY shall
provide the CITY and the DISTRICT with the insurance and additional insured requirements set
forth above, and a self-insurance certificate for the remainder.
(g) Upon receipt of notice from the CITY or the DISTRICT that any portion of the
Property has been transferred or conveyed, or that rights under this Agreement have been
assigned, the COUNTY shall promptly amend or revise the certificate(s) and additional insured
endorsement(s) to include any such successors -in -interest to such portion of the Property and/or
any successors and/or assigns. The COUNTY agrees that any other insurance coverage which
may be applicable to this Agreement and any of the COUNTY's obligations or responsibilities
under this Agreement shall be deemed excess coverage and that the COUNTY's insurance
program shall be primary.
(h) The COUNTY shall maintain the foregoing insurance and/or self-insurance
coverages in force until the COUNTY's obligations and responsibilities under this Agreement
and the Site Maintenance Plan are completed. The requirement for maintaining this insurance
and/or self-insurance shall not derogate from the COUNTY's defense, reimbursement, hold
harmless, and indemnification obligations as set forth under this Agreement.
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(i) The COUNTY shall require all of its contractors, consultants, and their
subcontractors to comply with the insurance requirements set forth in Exhibit "D" to this
Agreement, and to name the CITY and the DISTRICT as additional insureds on all such
insurance. Notwithstanding the foregoing sentence, the COUNTY shall require all of its
contractors, consultants, and their subcontractors to provide the CITY and the DISTRICT with at
least the same level of insurance coverage that the COUNTY requires for itself from each such
contractor, consultant, and their subcontractors.
8. CHANGE IN USE.
If the DISTRICT or the CITY, or any of their respective successors, assigns, or
successors -in -interest initiate a "change in use" to any part or portion of the Property where solid
waste has been buried, from the current park, playground, recreational, and/or school uses, which
results in the LEA, the CIWMB, the SCAQMD, and/or any other regulatory agency exercising
its jurisdiction to require that the Landfill Gas Collection, Control, and Monitoring System be
expanded or modified, then the Parry responsible for the "change in use" shall assume
responsibility for and all additional incremental costs associated with any such expansion or
modification to the Landfill Gas Collection, Control, and Monitoring System; provided that any
prior, existing, or future use of the District Property by the DISTRICT or the City Property by
the CITY, or any of their respective successors, assigns, or successors -in -interest to such
properties, in any manner and for any use consistent with the CITY's and/or the DISTRICT's
existing or prior uses of such properties, shall not constitute a "change in use" under this
Agreement. The Parties further agree that the CITY's Reconfiguration Plan does not provide for
any "change in use" to any part or portion of the Property.
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9. THE PARTIES' RELEASES.
(a) Except as otherwise provided in Subsections 9(c) and (d) below, the CITY and the
DISTRICT, and their agents, representatives, employees, officers, board members, council
members, successors, and assigns, hereby waive, release, acquit, and forever discharge the
COUNTY and its agents, representatives, employees, officers, board members, successors, and
assigns, and each of them, from and against any and all past or present claims, demands,
obligations, actions, causes of action, damages, costs, and expenses (the "Claims"), whether
known or unknown, suspected or unsuspected, fixed or contingent, that concern or relate to the
methane gas being emitted from the Property.
(b) Except as otherwise provided in Subsections 9(c) and (d) below, the COUNTY
and its agents, representatives, employees, officers, board members, successors, and assigns,
hereby waive, release, acquit, and forever discharge the CITY and the DISTRICT, and their
respective agents, representatives, employees, officers, board members, council members,
successors, and assigns, and each of them, from and against any and all Claims, whether known
or unknown, suspected or unsuspected, fixed or contingent, that concern or relate to the methane
gas being emitted from the Property.
(c) Notwithstanding any other provision of this Agreement to the contrary, the waiver
and release provided hereunder by the Parties shall only apply to those Claims expressly set forth
in this Section 9 herein, and shall not apply to any other claims these Parties may have as against
the other Parties, which claims may now exist or may in the future exist, including but not
limited to any claims: (1) arising out of or relating to any claim that may be brought by any
person or entity that is not a Party to this Agreement, including but not limited to, any claim for
contribution, indemnity, apportionment of fault, declaratory relief, or other related claim arising
out of or in anyway relating to any claim, cause of action, or allegation brought or asserted by a
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third party to this Agreement, and whether existing or arising in the future; (2) that do not
directly concern methane gas from the Property, including, for example, any claim concerning or
relating to other non -methane LFG; (3) arising out of the existence or potential existence of any
"hazardous substances," "hazardous wastes," or "hazardous" or "toxic materials" as such terms
may be defined under any State and/or federal law (collectively, "Hazardous Substances"); or (4)
concerning or in any way relating to any of the Parties' rights or obligations as provided for or
arising out of this Agreement.
(d) The Parties agree that by their releases herein, no Party shall be deemed to have
waived, and each Party expressly reserves, all rights, whether based in tort, contract, or statute,
or on any other theory of recovery, to recover from any other Party any costs, damages, and
expenses associated with any claim not specifically released herein.
10. INDEMNIFICATION.
(a) The COUNTY shall indemnify, defend, and hold harmless, the CITY and the
DISTRICT, and their respective agents, representatives, employees, officers, board members,
council members, successors, and assigns, including their successors -in -interest to any part or
portion of the Property, and their respective agents, representatives, employees, officers, board
members, council members, successors, and assigns, from and against any and all claims, causes
of action, fines, penalties, rights of action, damages, losses, expenses, judgments, demands,
defense costs, and consequential damages or liability of any kind or nature, respecting any work
or obligation performed or to be performed under this Agreement (hereinafter, collectively
"Indemnification Claim"), that arise out of the actions, inactions, or omissions of the COUNTY,
or of its agents, employees, representatives, consultants, or contractors, or any of their
subcontractors, except that the provisions of this indemnity shall not apply to any
Indemnification Claim caused by the active negligence or willful misconduct of the CITY (as to
227/062044-0007
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the COUNTY's obligations to the CITY) or caused by the active negligence or willful
misconduct of the DISTRICT (as to the COUNTY's obligations to the DISTRICT). The
indemnities provided in this paragraph shall apply to all claims and liability regardless of
whether any insurance policies are applicable. Any insurance policy limits do not act as a
limitation upon the amount of any indemnification to be provided hereunder.
(b) The CITY shall indemnify, defend, and hold harmless, the COUNTY, its agents,
representatives, employees, officers, board members, successors, and assigns, from and against
any Indemnification Claim that arises out of the actions, inactions, or omissions of the CITY or
of its agents, employees, representatives, consultants, or contractors, or any of their
subcontractors, except that the provisions of this indemnity shall not apply to any
Indemnification Claim caused by the active negligence or willful misconduct of the COUNTY.
The DISTRICT shall indemnify, defend, and hold harmless, the COUNTY, its agents,
representatives, employees, officers, board members, successors, and assigns, from and against
any Indemnification Claim that arises out of the actions, inactions, or omissions of the
DISTRICT or of its agents, employees, representatives, consultants, or contractors, or any of
their subcontractors, except that the provisions of this indemnity shall not apply to any
Indemnification Claim caused by the active negligence or willful misconduct of the COUNTY.
The indemnities provided in this paragraph shall apply to all claims and liability regardless of
whether any insurance policies are applicable. Any insurance policy limits do not act as a
limitation upon the amount of any indemnification to be provided hereunder.
(c) In the event any obligation to provide a defense under this Section 10 is triggered,
the indemnified Party shall cooperate in such defense by providing reasonable access to all
witnesses, documents, reports, or other available information, as needed to fully defend the
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Indemnification Claim, without charge to the Party providing the defense, except for out of
pocket costs incurred.
11. RECORDATION; EQUITABLE SERVITUDES.
The Parties agree that this Agreement shall be recorded with the County of Orange, as it
contains equitable servitudes, and that it shall bind and inure to the benefit of any and all
successive owners of any portion of the Property, or to the Kettler Property, and shall bind and
inure to the benefit of the successors and assigns of the DISTRICT, the CITY, and the
COUNTY, in the same manner as if each had expressly entered into the Agreement.
12. REVERTER CLAUSE — DISTRICT PROPERTY.
(a) The deed transferring title of the Property to the CITY included a condition which
provides that if the deeded property were used for any purpose other than the operation of a
public park, playground, or recreation facility for the beneficial use of all residents of the County
of Orange (the grantor), that the property would automatically revert back to the grantor (the
"Reverter Clause"); however, such deed allowed the grantee to free the property from such a
condition, upon payment to the grantor of an amount equal to fifty percent (50%) of the fair
market value of that portion of the property in issue.
(b) The COUNTY and the DISTRICT acknowledge that since acquiring title to the
District Property in 1971, the DISTRICT has used such property for various supporting uses in
connection with its use of the Kettler Property as an elementary school. In furtherance of its use
of the Kettler Property as an elementary school, the DISTRICT has maintained necessary and
appropriate security on the District Property and imposed limitations on access to such property,
for the safety and well-being of its students and the benefit of the property. The COUNTY and
the DISTRICT agree that the DISTRICT's prior uses of the District Property are acceptable uses
227/062044-0007
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of such property, and that the COUNTY has not brought, and has no intention of bringing, any
action or claim alleging that such uses are in violation of the Reverter Clause, provided the
public continues to have similar access to any recreational facilities on the District Property that
are subject to the Reverter Clause.
(c) The COUNTY agrees that should the DISTRICT sell or otherwise lease any
interest in all or any part of portion of the District Property, all future owners of any fee, estate,
lease, or any other interest therein, shall have the right to continue to use and operate on the
District Property, in the same manner and to the same extent as used and operated by the
DISTRICT. The DISTRICT, and any and all such successor -in -interest to the District Property,
may use and operate on the District Property in any manner and for any use reasonably
consistent with the DISTRICT's existing or prior uses of such property, and the COUNTY shall
not assert any claim or allege any breach or violation of the Reverter Clause as a result of any
such future use or operation.
(d) The CITY is not a party to subsections (a) — (c) of this Section 12 of the
Agreement. Notwithstanding Section 12 and any other provisions of this Agreement, the CITY
expressly reserves any and all rights it has or may have to enforce any aspect of the Reverter
Clause as against the DISTRICT, or any successor -in -interest of the DISTRICT to the District
Property, and does not waive any right to do so by reason of it otherwise being a Party to this
Agreement.
13. GENERAL PROVISIONS.
(a) This instrument contains the entire agreement between the Parties on the matters
addressed in this Agreement, and all negotiations and agreements between the Parties or their
agents with respect to this transaction are merged herein. Any oral representation, modification,
227/062044-0007
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or waiver concerning this Agreement shall be of no force or effect except to the extent made in a
subsequent agreement in writing, and signed by all the Parties or their successors, assigns, or
successors -in -interest to the Property, or the Kettler Property, where such successors may exist.
Time is of the essence in the performance of the Parties' respective obligations herein contained.
The invalidity of any provision in this Agreement, as determined by a court of competent
jurisdiction, shall in no way affect the validity of any other provision hereof.
(b) In the event any action is brought by any Party to interpret or enforce the terms of
this Agreement, the prevailing Party in any such action shall be entitled to all reasonable
attorneys' fees and litigation costs and expenses, including those incurred on any appeal, and
including those relating to any post judgment collection, in addition to any and all other relief to
which the prevailing Party may otherwise be entitled.
(c) This Agreement shall be binding upon and inure to the benefit of all the Parties
and their respective successors, assigns, and, specifically, to their respective
successors -in -interest to the City Property, the District Property, or the Kettler Property. The
Parties acknowledge that this Agreement is fully assignable by the CITY or the DISTRICT,
without the need to obtain prior consent from any other Party.
(d) The Parties agree that any and all successors, assigns, and any
successors -in -interest to the City Property, the District Property, or the Kettler Property, are
intended third -party beneficiaries of this Agreement and are entitled to rely upon all rights,
representations, warranties, and covenants made by each Party to the same extent as if each third
party were a Party.
(e) Except as may otherwise be provided in this Agreement, all the Parties shall bear
their own costs and fees previously incurred in connection with the matters giving rise to this
227/062044-0007
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Agreement, including any and all attorneys' fees, consultants' fees, and other costs, and/or
expenses related thereto.
(f) Nothing in this Agreement is intended to, or shall be deemed or construed to be an
admission of liability by any Party, in any respect or to any extent whatsoever.
(g) Nothing expressed or mentioned in this Agreement is intended to or shall be
construed to give any person, other than the Parties and their respective successors, assigns, and
the designated third -party beneficiaries, including the successors -in -interest to the City Property,
the District Property, or the Kettler Property, any legal or equitable right, remedy, or claim under
or in respect of this Agreement or any provisions hereof, and this Agreement is intended to be for
the sole and exclusive benefit of the Parties and their successors, assigns, and the designated
third -party beneficiaries (including for the benefit of the Parties' successors -in -interest to the
City Property, the District's Property, or the Kettler Property), and for the benefit of no other
person.
(h) All documents, correspondence, and written communications concerning this
Agreement shall be directed as set forth below or as any Party may hereafter designate by written
notice:
For the COUNTY:
Director, Integrated Waste Management Department
320 North Flower Street, Suite 400
Santa Ana, CA 92703
For the DISTRICT:
Mr. Michael Curran
Assistant Superintendent
Administrative Services
Huntington Beach City School District
20451 Craimer Lane
Huntington Beach, CA 92648
227/062044-0007
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For the CITY:
Fire Chief
City of Huntington Beach
2000 Main Street
Huntington Beach, CA 92648
With copy to:
City Attorney
City of Huntington Beach
2000 Main Street
Huntington Beach, CA 92648
(i) Each of the persons executing this Agreement represents and warrants that he or
she is duly authorized to act on behalf of the Party obligated by the terms hereof, and that his or
her execution of this Agreement binds the Party on whose behalf he or she has executed this
Agreement.
0) This Agreement shall be governed by and construed according to the laws of the
State of California.
(k) This Agreement may be executed in counterparts, and photocopies, electronically
scanned copies, or facsimile copies of this Agreement may be used as originals. Each such
counterpart, electronic copy, photocopy, or facsimile copy of this Agreement shall be deemed an
original, all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the day and year
dated below.
DATED:&IL L, 2007
COUNTY OF ORANGE, a political
subdivision the Stat of Cal' ornia
By:
Chairman of Its Board of Supersors
227/062044-0007
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SIGNED AND CERTIFIED THAT A COPY
OF THIS DOCUMENT HAS BEEN
DELIVERED TO THE CHAIRMAN OF THE
BOARD
DARLENE J. BLOO
Clerk of the Board of Supervisors
County of Orange, California
DATED: September 27 .2007
DATED: � a _ 2007
DATED: , 2007
CITY OF HUNTINGTON BEACH,
a municipal corporation of the State of
California
By. Cat G r0. Name: 5h
Title:
HUNTINGTON BEACH CITY SCHOOL
DISTRICT
By
Name:
Titles.;
h4136SD #Zo.1.4 xv%'i✓s os
APPROVED AS TO FORM:
BENJAMIN de MAYO, COUNTY
COUNSEL
C
By:
Geoffre unt, Deputy
227/062044-0007
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CALIFORNIAi i = F,
State of California
Corr
On
per:
1
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
rAO p L. ESPARZA capacity(ies), and that by his/her/their signature(s) on the
COMR**M # 1599179 instrument the person(s), or the entity upon behalf of
Way aftc - canwft which the person(s) acted, executed the instrument.
OmngeCourvy
4p,vcanm•ExptneaAu9d. WITNESS my hand and official seal.
Place Notary Seal Above Signature •
Signature of NotaryP c
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document .,--
Title or Type of Document:=7T�E/1'J /itT
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
❑ Individual
❑ Corporate Officer — Title(s):
❑ Partner— ❑ Limited ❑ General 11MMUDEGLOILTHIMINWIN_
❑ Attorney in Fact
E3 Trustee Top of thumb here
❑ Guardian or Conservator
❑ Other -
Signer Is Representing:
I�
Signer's Name:
❑ Individual
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General IN
❑ Attorney in Fact °
Top ❑ Trustee of thumb here
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
® 2008 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 Item No. 5907 v609 Reorder: Call Toll -Free 1-800-876.6827
U
ACKNOWLEDGMENT
State of California
County of Orange
On September 28, 2007 before me, Kathleen Nelson, Notary Public, personally appeared
Brian Rechsteiner proved to me on the basis of satisfactory evidence to be the personv)
whose name() is/afe subscribed to the within instrument and acknowledged to me that he/s�elt46y
executed the same in his/h#r/tl bir authorized capacity(io), and that by his/h)6r/t0ir signature( on
the instrument the person(, or the entity upon behalf of which the person(A) acted, executed the
instrument.
WITNESS my hand and official seal.
Signature
KA1HLEEN NELSON
Commission # 1508478
-� Notary Public • California
• Orange County
My Comm. Expires Aug 17, 2008
(Seal)
OFFICE OF CITY ATTORNEY
DATED: , 2007 By
nnifer Mc rath, City Att ey
RUTAN & TUCKER, LLP
DATED: , 2007 By:
Richard Montevideo, Attorneys for
Huntington Beach City School District.
227/062044-0007
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OFFICE OF CITY ATTORNEY
DATED: , 2007 By:
Jennifer McGrath, City Attorney
RUTAN & TUCKER, LLP
DATED: July 20 12007 By:
Richard Montevideo, Attorneys for
Huntington Beach City School District.
121roe2044-0007
098793.17 a0W08'07a08/16r07 -28-
EXHIBIT "A"
LEGAL DESCRIPTION
(For the Former Cannery Street Refuse Disposal Station -
Approximately 27.68 Acres of Land Conveyed from the COUNTY to the CITY)
All that certain land situated in the State of California, County of Orange, City of
Huntington Beach, described as follows:
The Southeast quarter of the Northeast quarter of Section Thirteen, Township Six
South, Range Eleven West, S.B.B. & M.
EXCEPTING THEREFROM the East 500.00 feet of the North 425 feet.
ALSO EXCEPTING THEREFROM the South 230 feet.
EXHIBIT "A"
227/062044-0007
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EXHIBIT "B"
LEGAL DESCRIPTION
(For the Approximately 5 Acres of Land
Conveyed from the CITY to the DISTRICT)
All that certain land situated in the State of California, County of Orange, City of
Huntington Beach, described as follows:
The west 512.47 feet of the north 425.00 feet of the southeast one -quarter (SE'/4)
of the northeast one -quarter (NE'/4) of Section 13, Township 6 South, Range 11
West, San Bernardino Base and Meridian.
EXHIBIT `B"
227/062044,0007
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EXHIBIT "C"
LEGAL DESCRIPTION
(For the Approximately 5 Acres of Land
that Forms the Northeast Portion of
Edison Community Park)
All that certain land situated in the State of California, County of Orange, City of
Huntington Beach, described as follows:
The East 500 feet of the North 425.00 feet of the Southeast Quarter of the
Northeast Quarter of Section 13, Township 6 South, Range 11 West; in the
Rancho Las Bolsas, City of Huntington Beach, County of Orange, State of
California, as per map recorded in Book 51, Page 14 of Miscellaneous Maps, in
the Office of the County Recorder of said County.
EXHIBIT "C"
227/062044-0007
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Exhibit "D"
County Contractor/Consultant
INSURANCE REQUIREMENTS
During the term of this Agreement COUNTY shall require all of its contractors
performing work within the Disposal Site Property, at contractors' expense, to maintain
insurance as set forth below:
COVERAGE/LIMITS
Coverage
Minimum Limits
Commercial General Liability
$1,000,000 combined single limit per
including broad form property
occurrence, $2,000,000 aggregate
damage, operations, products
completed operations, contractual
liability, and XCU (explosion,
collapse and underground
property damage hazards)
Automobile Liability including
$1,000,000 combined single limit
coverage for owned, non -owned
per occurrence
and hired vehicles
Workers' Compensation
Statutory
Employers' Liability Insurance
$1,000,000 per occurrence
All liability insurance required by this Agreement shall be at least $1,000,000 combined
single limit per occurrence. The minimum General Aggregate limit for the Commercial
General Liability policy shall be $2,000,000. The minimum aggregate limit for the
completed operations shall be $1,000,000.
The Contractor shall be aware of the provisions of Section 3700 of the California Labor
Code which requires every employer to be insured against liability for Workers'
Compensation or be self -insured in accordance with provisions of that code. The
contractor will comply with such provisions and shall furnish the COUNTY satisfactory
evidence that the contractor has secured, for the period of this Agreement, statutory
Workers' Compensation insurance and Employers' Liability insurance with minimum
limits of $1,000,000 per occurrence.
DEDUCTIBLE/ SELF-INSURANCE RETENTIONS LIMITATIONS
All insurance policies required of contractors under this Agreement shall declare any
deductible. The maximum deductible amount shall be $25,000 for general liability and
$5,000 for automobile liability, unless approval for a higher deductible is given by the
COUNTY. The contractor shall be responsible for reimbursement of any deductible to
the insurer. Any deductibles shall be clearly stated on the Certificate of Insurance.
-I-
EXHIBIT D
Page 2 of 3
QUALIFIED INSURER
Minimum insurance company ratings as determined by the most current edition of the
Best's Key Rating Guide/Property-Casualty/United States or ambest.com shall be A -
(Secure Best's Rating) and VIII (Financial Size Category).
If a non -admitted carrier is utilized by the contractor, COUNTY retains the right to
approve or reject carrier after a review of the company's performance and financial
ratings.
ADDITIONAL INSURED REOUIREMENTS
The COUNTY, CITY and the DISTRICT shall be added as additional insureds on all
insurance policies required by this Agreement with respect to work done by the
contractor under the terms of this Agreement (except Workers' Compensation/Employers'
Liability). An additional insured endorsement evidencing that the COUNTY, CITY and
the DISTRICT are additional insureds shall accompany the Certificate of Insurance. The
inclusion of the COUNTY, CITY and the DISTRICT as additional insureds shall not
affect any right which such organizations would have as a claimant if not so included.
CONTRACTOR'S INSURANCE SHALL BE PRIMARY
All insurance policies required of contractors under this Agreement shall be primary
insurance, and any insurance maintained by the COUNTY, CITY and the DISTRICT
shall be excess and non-contributing with insurance provided by these policies. An
endorsement evidencing that the contractor's insurance is primary and non-contributing,
or other documentation acceptable to the COUNTY, CITY and the DISTRICT that such
policy provides for it to be primary absent an endorsement, shall specifically accompany
the Certificate of Insurance for the Commercial General Liability.
NOTICE OF CANCELLATION
All insurance policies required by this Agreement shall give the COUNTY 30 days notice
in the event of cancellation. This shall be evidenced by an endorsement separate from the
Certificate of Insurance. In addition, the cancellation clause must include language as
follows, which edits the pre-printed ACORD certificate:
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED
BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL
MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO
THE LEFT.
SUB ROGATION/SEVERABILITY
All insurance policies required by this Agreement shall waive all rights of subrogation
against the COUNTY, CITY and the DISTRICT and their elected and appointed officials,
officers, agents and employees when acting within the scope of their appointment or
EXHIBIT D
Page 3 of 3
t employment.
The Commercial General Liability policy shall contain a severability of interests clause.
INSURANCE LIMITS ARE NOT LIMITS ON INDEMNITY OBLIGATIONS
The procurixg of such required policy or policies of insurance shall not be construed to
limit Contractor's liability hereunder or to fulfill the indemnification provisions and
requirements of this Agreement.
EXHIBIT D
RCA ROUTING SHEET
INITIATING DEPARTMENT:
CITY ATTORNEY
SUBJECT:
Edison Community Park Methane Gas
Settlement Agreement
COUNCIL MEETING DATE:
August 6, 2007
RCA ATTACHMENTS
STAT°US
Ordinance (w/exhibits & legislative draft if applicable)
Attached
❑
Not Applicable
E
Resolution (w/exhibits & legislative draft if applicable)
Attached
❑
Not Applicable
E
Tract Map, Location Map and/or other Exhibits
Attached
❑
Not Applicable
E
Contract/Agreement (w/exhibits if applicable)
Attached
E
(Signed in full by the City Attorney)
Not Applicable
❑
Subleases, Third Party Agreements, etc.
Attached
❑
(Approved as to form by City Attorney)
Not Applicable
Certificates of Insurance (Approved by the City Attorney)
Attached
❑
Not Applicable
Fiscal Impact Statement (Unbudgeted, over $5,000)
Attached
❑
Not Applicable
Bonds (If applicable)
Attached
❑
Not Applicable
Staff Report (If applicable)
Attached
❑
Not Applicable
Commission, Board or Committee Report (If applicable)
Attached
❑
Not Applicable
Findings/Conditions for Approval and/or Denial
Attached
❑
Not Applicable
E
,EXPLANATION FOR MISSING "ATTACHMENTS`
RCA Author: John Fujii, Deputy City Attorney
�s6,03