HomeMy WebLinkAboutPLC and Chevron Land & Development (CL&D) - Holmby Park - 2002-10-21 S ity
Fire Chiefs Office
Hunt in ach .
To: Connie Brockway, City Clerk
From: Michael Dolder, Fire Chie
Date: December 27, 2002
SUBJECT: HOLMBY PARK INDEMNIFICATION AGREEMENT DOCUMENTS
The enclosed CD from ChevronTexaco contains documents pertaining to the
Environmental Insurance Policy for Holmby Park and should be filed with the RCA
approved on October 21, 2002,
SAFMT\Purdue\Dolder\Holmby CD memo.doc
Donald Lacson
MARSH Client Representative
Marsh USA Inc.
One California Street,7`h Floor
San Francisco,CA 94111
415 743 8620 Fax 415 743 7688
www.marsh.com
November 21, 2002
Federal Express
Michael P. Dolder
Fire Chief
City of Huntington Beach
Fire Department
2000 Main Street
Huntington Beach, CA 92648
Subject: ChevronTexaco/City of Huntington Beach
Dear Michael:
Enclosed please find another copy of the CD.
Should you have any questions, please contact John at 415/743-8609.
Sincerely,
Rva
Donald Lacson
Client Representative
EMAk Marsh&McLennan Companies
ChevronTexaco Supporting Info Page 1 of 2
MARSH
lemucP&
1L ron C3 U
One California Street
San Francisco.CA 94111
Information Supporting Environmental Insurance Policy
Pursuant to the additional requirements stated in the Chubb October 16,2002 Premium Indication and our meeting held on
November 7,2002,below are links to the following documents:
1.All documents contained in the Remedial Action Plan Exhibit(Exhibit B)of the Indemnification
Agreement.These documents include:
a)Sound Epic.June 1996. Holly_-Pr op.erty_Soil._Removal Action_Project,Huntington Beach,
California,Final Report.
b)IT Corporation.August 1996. Soil Vapor Extraction Pilot Test Report,Holly Seacliff
Project,7201 Garfield Avenue,Huntington Beach,California.
c)Radian Corporation.December 1997.Results of Petroleum Hydrocarbon Surface
Emission Flux Sampling at the Chevron Holly-Seacliff Property.
d)Chem Risk.July 9, 1998.Risk Evaluation of Cove and Holmby Park: Remediation and
Closure Strategy.
e)IT Corporation.November 2000. Soil Sampling Report-The Park Area,Holly Seacliff Site,
Chevron Environmental Management Co..
0 IT Corporation.March 2002. Shut-down Test Report-The Promenade Neighborhood Park,
A.K.A.Hohnby Park,Holly Seacliff Project.
g)Shaw Environmental,Inc May 2002.PB16 Vapor Sampling Test Report-Chevron Holly
Seacliff Project.
h)Shaw Environmental,Inc June 2002.Post-hole Emission Testing Report-Chevron Holly
Seacliff Project.
i)Shaw Environmental,Inc October 2002. Construction Drawings for Promenade Park Cap,
A.K.A.Holmby Park,Holly Seacliff Project
2)The Indemnification Agreement-this a copy of the final and fully executed document.I've also included,
for the record,documents reviewed by Huntington Beach City Council in connection with their approval.
3)Legal Description of the Property to be Insured-These documents include both written and map versions
of the legal description.
4)Copies_of.Exh.ibits..13_(Remedial Action Plan.._Reports)_and_C.(_Environmena orts)of the
Indemnification Agreement-copies are provided for your convenience and are also contained with said
agreement.
file:HEAindex.htm 11/21/2002
•ChevronTexaco Supporting Info Page 2 of 2
5)The Regional Water Board Case Closure Letter for the property.
6)A~ample letter that the I lunt:ington Beach Fire Department expects to issue once all remaining remedial
actions are complete.
7)$u_rrt ry of Past.and Current Claims.related to the insured site against any named insured I am unaware of
any claims,past or present,related to the insured site.
8)Application form-you have previously received a draft application form.I await your counsel regarding
the adequacy of this draft application.
These files are in the Adobe Acrobat format.The Acrobat Reader software must be loaded on your PC in order to view or print Ad
these files.You may load the software at no charge by.clickine here.
Player
file://E:\index.htm 11/21/2002
CITY OF HUNTINGTON BEACH
2000 MAIN STREET CALIFORNIA 92648
FIRE DEPARTMENT '
November 5, 2002
Mr. William D. Holman
PLC Land Company
23 Corporate Plaza, Suite 250
Newport Beach, CA 92660
RE: EXECUTED AGREEMENT WITH CITY OF HUNTINGTON BEACH,
HOLMBY PARK
Dear Mr. Holman:
This letter is to verify that a copy of the Huntington Beach City Council RCA for Holmby Park,
including attachments, and an original executed Environmental Indemnification Agreement
were hand delivered to you on Thursday, October 31, 2002 at the City Clerk's office of the
City of Huntington Beach.
If you have any questions, please call me at (714) 536-5402.
Sincerely,
Michael P. Dolder
Fire.Chief
MPD/bp
cc: City Clerk
S:\FMT\Purdue\Dolder\Transmittal Itr Holmby PLC.doc
CITY OF HUNTINGTON BEACH
2000 MAIN STREET CALIFORNIA 92648
FIRE DEPARTMENT
November 5, 2002
Jim Pugliese
Environmental Representative
Chevron Land & Development Company,
3100 South Harbor Blvd. Suite 340
Santa Ana, CA 92704
RE: EXECUTED AGREEMENT WITH CITY OF HUNTINGTON BEACH,
HOLMBY PARK
Dear Mr. Pugliese:
Enclosed is a copy of the Huntington Beach City Council RCA for Holmby Park, including
attachments, and an original executed Environmental Indemnification Agreement.
If you have any questions, please call me at (714) 536-5402.
Sincerely, --
Michael P. Dolder
Fire Chief
MPD/bp
cc: City Clerk
Enclosures
S:\FMT\Purdue\Dolder\Transmittal Itr Holmby Chevron.doc
j
a
PLO
Fire Chief of C NUZ OCT 21 A 11: 30
s Office
To: Mayor and City Council
Via: Ray Silver, City Administrator
From: Michael Dolder, Fire Chief/Information Systems Director
Date: October 20, 2002
Subject: Addendum to Item F-1 Acceptance of Holmby Park Parcel and
Environmental Indemnification Agreement
The following is an addendum to Item F-1, Approve Acceptance of Park Parcel and
Environmental Indemnification Agreement Pertaining Thereto (Holmby Park):
This addendum is necessary to incorporate final Agreement changes that were
negotiated on Friday, October 18, 2002. These changes are included in the Agreement
(Attachment 2 of the RCA); however, the changes are not reflected in the RCA analysis.
These late negotiations resulted from the insurance carrier's proposed policy coverage.
Agreement
The intent of this Agreement, (Attachment 2, Page 1, Recital E), is that City bear no
responsibility or liability for Environmental Contamination or Covered Contamination or
any other contamination at the Property other than that caused by any activities of City
or that which occurred after conveyance of the Property to City and which was not
caused by, did not result from or was not associated with any activities of Chevron Land
and Development (CL&D) or PLC.
Property Use
In the course of negotiations regarding the Environmental Insurance Policy, the carrier
mandated that the property use be limited to public recreational purposes only.
Accordingly, staff revised the deed and the easement (Exhibits D & E) to reflect this
limitation. City Council should be aware of this property use limitatiowso that the City
does not jeopardize its rights under the Agreement.
Environmental Insurance
The negotiated Environmental Insurance Policy will contain the following:
• $10,000,000 in coverage for a 10-year period starting from the date when the
property is conveyed to the City. (i.e. At the time when the Park is finished and
accepted by the City.)
• The full premium of the policy will be paid in advance by CL&D.
Lat 6ArAvVUu+_1- #rkZ
Addendum to Item F-1 Acceptance of Holmby Park Parcel and Environmental Indemnification Agreement
10/20/2002
Page 2
• The policy will cover cleanup costs for both new and pre-existing unknown
contamination that is discovered on the property or that migrates off the
property.
• The policy provides protection for liability to third parties because of the
contamination.
• The policy will not cover City employees who may have a claim relating to the
property that arises out of their employment. (Employees are covered under the
City's Workers Compensation Insurance.)
Policy Renewal
The policy requirement contains a renewal option for an additional 10-year term. This
renewal option is very restricted and cannot be guaranteed at this time. However, the
agreement provides that if the City is able to obtain a renewal of the Environmental
Insurance Policy and elects to do so or if the City obtains environmental insurance from
the same or different carrier with the same or different coverage and conditions, CL&D
will be required to pay the renewal or new insurance premium up to Two Hundred Fifty
Thousand Dollars ($250,000). (Page 13, Section 6.4(d)(ix) of the Agreement)
Park Construction
To assure that Park construction activities do not intrude into the remedial barrier cap
and or damage any remediation equipment, Staff negotiated that PLC will reimburse the
City for costs for employing an engineering firm to serve as the City's on-site observer
during Park construction. (Page 6, Section 5.2 of the Agreement)
RCA Changes
The modifications to the Agreement and its Exhibits as described above are included in
the attached revised RCA pages 8 to 13 only. These changes have been highlighted in
yellow to accent the additions.
For the record a revised RCA is submitted to the City Clerk titled. "APPROVE
ACCEPTANCE OF PARK PARCEL AND ENVIRONMENTAL INDEMNIFICATION
AGREEMENT PERTAINING THERETO (HOLMSY PARK) (MODIFIED OCTOBER 18,
2002 FOR NEGOTIATED CHANGES."
4 ,
REQUEST FOR COUNCIL ACTION
MEETING DATE: October 21, 2002 DEPARTMENT ID NUMBER: PL02-42
is approximately 55 feet. From Promenade Parkway, the park site will gradually rise to the
highpoint. From Seagate Street, a steeper slope is required because the required capping
extends to the curb. The other two sides of the proposed park site abut the portion of the
Holmby site that is proposed for residential development. There will be an approximate 10-
foot differential in grade at the northwest property line, adjacent to the proposed tennis court,
but only a 3.5-foot differential at the southwest property line. There would also be a 50' x 50'
enclosed area for monitoring equipment at the southwest corner adjacent to Seagate Street.
Although having such an elevated park site is not preferred, Community Services and
Planning staff believe that there are adequate buffers between the proposed park site and
existing development and that similar buffers can be incorporated into the design of the
future residential units proposed for Holmby. The park site is separated from existing homes
by Promenade Parkway and Seagate Streets. Both of the streets include a minimum 15-foot
wide landscape area adjacent to the existing homes, and on the park side of Promenade
there is an existing 20-30 foot wide eucalyptus windrow that will also assist in screening the
park. In terms of the future Holmby residential area, as noted, the southwest property line
has a minimal differential in grade and there is a gradual slope that provides approximately
65-100 feet of separation between the property line and the volleyball court, the closest
active use. For the northwest property line adjacent to the tennis court, a ten foot high
retaining wall will be required. Staff has informed PLC that, on the residential side of the
retaining wall, landscape planters and a planted slope would be required along with a
minimum 20-foot setback to any residences and installation of dual-paned windows in the
units. Staff has also requested that PLC locate the private recreational open space that will
be required for the residential project adjacent to the tennis court to minimize potential noise
impacts. Finally, as noted, the park will not be lighted for nighttime use, which would further
minimize noise impacts.
Environmental Indemnification Agreement
The Environmental Indemnification Agreement (Agreement), Attachment 2, is designed to
protect the interests of the City, as well as CL&D and PLC, with respect to the proposed park
site. Recital E on page 1 of the Agreement states:
"The intent of this Agreement is that City bear no responsibility or liability for
Environmental Contamination or Covered Contamination or any other
contamination at the Property other than that caused by any activities of the
City or that which occurred after conveyance of the Property to City and which
was not caused by, did not result from or was not associated with any activities
of CL&D or PLC."
In the course of negotiations regarding the Environmental Insurance Policy, the carrier
mandated that the property use be limited to public recreational purposes only. Accordingly,
staff revised the deed and the easement language (Exhibits D & E) to reflect this limitation.
City Council should be aware of this property use limitation so that the City does not
jeopardize its rights under the Agreement. For the purposes of the Agreement, the park site
has been divided into two parts: the "clean" part and the "contaminated" part that would be
capped. The clean part that essentially surrounds the contaminated p ion would be
UnderlinedRCAAPL02-42 1019Final.DOC -8- 10/20/2002 9:29 AM
REQUEST FOR COUNCIL ACTION
MEETING DATE: October 21, 2002 DEPARTMENT ID NUMBER: PL02-42
conveyed to the City by a grant deed. (See Section 5.4(a).) The contaminated part, after
capping and construction of the park, would be conveyed to the City by an irrevocable,
perpetual, exclusive easement, which can be maintained as long as the City wishes unless
the City abandons the park. (See Section 5.4(b).) Further, such an easement would not be
rendered invalid if the City breached the cap and/or its obligations under the Agreement
although the City could be liable for damages in the event of a breach. The easement would
provide the City with the surface rights for park purposes and would also allow the City to
use the upper three feet of engineered clean fill for grading or other park purposes as long
as the City did not interfere with the cap under the park. Section 5.3 of the Agreement lists
the items that must be completed prior to the City accepting conveyance. These include:
CL&D satisfying its obligations to remediate Covered Contamination and Environmental
Contamination as defined in the Agreement; City approving a site assess ment/audit for the
"clean" area, all required insurance policies being in place, and PLC constructing the park in
.accordance with the requirements of the City. Under Section 5.5 of the Agreement, the City
would reserve its right to convert its easement rights into ownership at a future date by
accepting a conveyance of the easement property by a grant deed without paying any
consideration to PLC.
Pursuant to Section 7.2 of the Agreement, the City is waiving all statutory and common law
claims against PLC and CL&D with respect to Covered Contamination and/or Environmental
Contamination connected with the Property. The City's rights and remedies with regard to
PLC and CL&D and their affiliates with respect to Environmental Contamination and Covered
Contamination will be limited to those set forth in this Agreement. During the negotiations,
PLC and CL&D both indicated that they wished to have all of their obligations and
responsibilities to the City identified in a single agreement and that they did not feel it would
be fair to allow the City to be able to pursue a cause of action against either or both of them
if the obligation was not identified in the Agreement. Staff agreed to the request during the
negotiations and thereafter spent considerable time ensuring that all of the rights and
remedies important to the City are included in the Agreement.
Pursuant to the Agreement, both PLC and CL&D are providing indemnification protection to
the City, which covers damages and injuries caused by the Environmental Contamination
and Covered Contamination and their performance and/or failure to perform the Agreement.
(See Sections 5.2, 6.1, 6.3 and 7.1 and 7.3 of the Agreement.) PLC and CL&D will not be
responsible for loss of business by the City, diminution in the value of the Property and loss
of goodwill by City and their indemnification obligations under Section 6.1 of the Agreement
will not apply to these same issues. (See Section 7.3.)
Council is advised that the indemnification protection provided to the City is only as good as
the financial backing of the indemnitor. PLC will essentially have no assets once it develops
and sells all of its property. CL&D may be in a similar situation. Therefore, the
environmental insurance policy becomes more important in this transaction because
indemnification protections provided by PLC and CL&D to the City may not be viable options
as PLC and CL&D may not be in existence or not have the financial backing to sufficiently
indemnify the City. I(,
UnderlinedRCAAPL02-42 1019Final.DOC -9- "� 10/20/2002 9:29 AM
REQUEST FOR COUNCIL ACTION
MEETING DATE: October 21, 2002 DEPARTMENT ID NUMBER: PL02-42
Under the Agreement, the City also has indemnification, defense and hold harmless
obligations to PLC and CL&D. (See Sections 6.2, 6.3 and 7.1.) Section 6.2 and 7.1 provide
as follows:
"6.2 City's Indemnity Obligations. After the Property is conveyed to City in
accordance with Section 5.4, City shall protect, defend, indemnify and hold harmless
CL&D and PLC from and against all claims, damages, losses, expenses, judgments,
demands and defense costs (including, without limitation, costs and fees of litigation
(including arbitration) of every nature or liability of any kind) arising out of, resulting
from, or in connection with, directly or indirectly, the Property. This indemnification and
defense obligation of City excludes such claims, costs, expenses, losses or liabilities (i)
that result from any negligence, willful misconduct or breach of this Agreement by
CL&D, PLC or any of their agents, vendors, contractors and/or subcontractors, and/or
(ii) that are covered by CL&D's and PLC's indemnification, defense and hold harmless
obligations set forth in this Agreement."
7.1 Increased Costs of Remediation. A party in default of this Agreement shall
be responsible for any and all increased costs of remediation, whether direct or indirect,
related to any default of this Agreement and hereby releases, defends and indemnifies
the non-defaulting party(ies) for all liability related to such default."
The City's indemnification, defense and hold harmless obligations to PLC and CL&D cover
claims and damages arising out of or in connection with the park site after it is conveyed to
the City. For instance, such claims and damages would include an injury resulting from a
slip and fall accident. The main difference here, as opposed to other park sites, is that the
City is agreeing to defend, indemnify and hold harmless other parties, PLC and CL&D, for
these claims. With respect to other parks dedicated to the City by developers, the City would
not be obligated to defend, indemnify and hold harmless the developers for such claims.
PLC and CL&D requested this indemnification language because, after conveyance, the City
will control the surface of the park site, and PLC and CL&D will have no control over the
property's use although CL&D or PLC will continue to own the part under which the City has
easement rights.
The insurance provisions allow PLC & CL&D to maintain deductibles and self-insured
retentions and programs.
(a) With respect to PLC's general public liability insurance, PLC is requesting a
$100,000.00 self-insurance retention or deductible. (See Section 6.4(b).)
(b) With respect to PLC's workers' compensation and employers' liability insurance
(see Section 6.4(a)) and general public liability insurance (see Section 6.4(b)),
CL&D is requesting that it meet these obligations through the self-insurance
program that it participates in. (See Section 6.4(e).)
(c) The environmental insurance policy also contains a $100, 0.00 deductible per
incident. (See Section 6.4(d)(x).) 5
UnderlinedRCAAPL02-42 1019Final.DOC -10- 10/20/2002 9:29 AM
REQUEST FOR COUNCIL ACTION
MEETING DATE: October 21, 2002 DEPARTMENT ID NUMBER: PL02-42
The City's Risk Management Division has been actively involved in the preparation of the
Agreement with respect to the insurance provisions. City staff is recommending that Council
approve the City's indemnification obligations to PLC and CL&D and the insurance
deductibles and self-insurance retentions set forth above.
The Agreement also contains a prevailing party attorney's fees provision (see Section 9.2 of
the Agreement), which is different from the City's standard each-party-pays provision.
Section 6.4 of the Agreement requires that PLC and CL&D obtain and maintain certain
insurance policies to afford appropriate protection to the City. The required insurance
policies include general public liability insurance, workers' compensation and employers'
liability insurance and environmental insurance. Section 6.4(d) of the Agreement identifies
the environmental insurance coverage that has been negotiated by City Staff. The
environmental insurance op licy will provide $10,000,000.00 in coverage for a 10-year period
commencing from the date the property is conveyed to the City. The full premium of the
policy will be paid in advance by CL&D. The policy will cover cleanup costs for both new and
pre-existing unknown contamination that is discovered on the property or that migrates off
the property. The policy will also provide protection for liability to third parties because of the
contamination. The policy will not cover City employees who have a claim relating to the
property that arises out of their employment.
The policy requirement contains a renewal option for an additional 10-year term. This
renewal option is very restricted and cannot be g-uaranteed at this time. However, the
agreement rovides that if the City is able to obtain a renewal of the Environmental
Insurance Policy and elects to do so or if the City obtains environmental insurance from the
same or different carrier with the same or different coverage and conditions, CL&D will be
required to pay the renewal or new insurance premium up to $250,000.00. (Page 13, Section
6.4(dd)(ix) of the Agreement).
In terms of whether or not the proposed limits of insurance would provide sufficient coverage
for the City, CL&D and PLC, all of which could make claims against the policy, staff has
discussed with CL&D and PLC the cost of the cap and park improvements and with outside
counsel the potential liability associated with third party claims and defense costs. The
installed cost of the cap is estimated to be $2 million and the park improvements will cost
$1.1 million. It is much harder to predict either defense costs or third party liability claims.
However, staff notes that the contaminants present on the property are of concern because
of their odor impacts rather than for their toxicity. Further, there have been no claims in the
past that the City is aware of arising from the presence of these contaminants at the park
site. Also, the contaminants will remain in the ground and be covered by the cap, which will
greatly minimize the possibility of any exposure of the public to these materials. To assure
that Park construction activities do not intrude into the remedial barrier cap and or damage
any remediation equipment, Staff negotiated that PLC will reimburse the City for costs for
employing an engineering firm to serve as the City's on-site observer during Park
Construction. (Attachment 2, Page 6, Section 5.2) Finally, conveyanc of the park will not
occur until the cap is installed and the improvements constructed. I
UnderlinedRCAAPL02-42 1019Final.DOC -11- �0 10/20/2002 9:29 AM
REQUEST FOR COUNCIL ACTION
MEETING DATE: October 21, 2002 DEPARTMENT ID NUMBER: PL02-42
The environmental insurance policy will not cover the following risks:
1. Releases of contaminants or damage to the remediation/monitoring equipment
or to the barrier over the contaminants caused by a deliberate act of a City
employee or an act that was grossly negligent;
2. Damage to the remediation/monitoring equipment or the barrier without any
release of contaminants to the environment, as would be the case if the barrier
was damaged by an earthquake; however, it should be noted that CL&D remains
obligated to maintain and repair the barrier, if needed, regardless of whether
environmental insurance protection is available or not;
3. Obligations for non-environmental matters such as a slip and fall accident or
subsidence problems caused by poorly compacted soils; and
4. City employees who may have a claim relating to the property that arises out of
their employment (Employees are coved under the City's Workers
Compensation Insurance.)
Although there will always be uncertainty associated with possible future claims and the
proper limits of insurance policies, staff believes that the proposed policy would adequately
protect the interests of the City.
Environmental Status:
The subject request is exempt pursuant to Section 15061(b)(3) of the California
Environmental Quality Act because it will not have any effect on the environment. The
proposed capping of the site and construction of the park is covered by Environmental
Impact Report No. 90-1 that was approved for construction of improvements in the Holly
Seacliff area.
U
UnderlinedRCAAPL02-42 1019Final.DOC -12- 10/20/2002 9:29 AM
REQUEST FOR COUNCIL ACTION
MEETING DATE: October 21, 2002 DEPARTMENT ID NUMBER: PL02-42
Attachment(s):
City Clerk's
P. . - NumberDescription
1. Vicinity Map
2. Environmental Indemnification Agreement
Exhibit A - Legal Description for Promenade Neighborhood Park Site
including exhibits describing Parcel 1, Parcel 2 and the
Easement Area
Exhibit B - List of Remedial Action Plan Reports— Park Area
Exhibit C - List of Environmental Reports— Park Area
Exhibit D - Sample Grant Deed for conveyance of property at the time
remediation is complete.
Exhibit E - Easement Agreement
Exhibit F- Memorandum of Environmental Indemnification Agreement
3. Proposed Closure Plan
4. Proposed Park Design
RCA Author: MBB/HZ/MD/JE
UnderlinedRCAAPL02-421019Final.DOC -13- 10/20/2002 9:29 AM
Council/Agency Meeting Held: Z
Deferred/Continued to:
Approved ❑ Conditionally Approved ❑ Denied City Clerk's Sig ure
Council Meeting Date: October 21, 2002 Department ID Number: PL02-42
CITY OF HUNTINGTON BEACH
REQUEST FOR COUNCIL ACTION ,1.
SUBMITTED TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
> ^
SUBMITTED BY: RAY SILVER, City Administrator ��� r
PREPARED BY: MICHAEL P. DOLDER, Fire Chief
JIM ENGLE, Acting Director of Community Serv' s
HOWARD ZELEFSKY, Director of Planning
SUBJECT: APPROVE ACCEPTANCE OF PARK PARCEL AND
ENVIRONMENTAL INDEMNIFICATION AGREEMENT PERTAINING
THERETO (HOLMBY PARK) (Modified October 18, 2002 for
Negotiated Changes)
Statement of Issue,Funding Source,Recommended Action,Alternative Action(s),Analysis,Environmental Status,Aftachments) l
Statement of Issue:
PLC has proposed to dedicate a four-acre parcel to the City of,Huntington Beach-to satisfy
its park obligations pursuant to the Holly Seacliff Development Agreement. Approximately
1.9 acres of the park parcel contains contaminants, primarily Thiophenes and Mercaptans,
which produce a very strong skunk-like odor even at low concentrations. Chevron Land &
Development Company would cap the contaminated portion of the parcel and PLC would
construct the park. The cap will be in place, the park will be constructed and the
environmental insurance coverage will be in effect before conveyance of the park to the City.
Staff recommends the City Council accept the park parcel pursuant to an Environmental
Indemnification Agreement that sets forth the terms of conveyance and the responsibilities
and rights of the three parties as well as the insurance coverage.
Funding Source: Not applicable.
Recommended Action:
Motion to:
1. Approve the acceptance of the four-acre parcel for future park dedication, subject to the
terms of the Environmental Indemnification Agreement and authorize the City Clerk to
accept the deed(s) and easement attached to or referenced in the Environmental
Indemnification Agreement; and
REQUEST FOR COUNCIL ACTION
MEETING DATE: October 21, 2002 DEPARTMENT ID NUMBER: PL02-42
2. Approve and authorize the Mayor and City Clerk to execute the Environmental
Indemnification Agreement in substantially the same form and upon approval as to form
by the City Attorney's Office, which includes non-standard indemnification provision as
set forth in Sections 5.2, 6.1 through 6.3 and 7.1 of the Environmental Indemnification
Agreement, the City's indemnification, defense and hold harmless obligations to PLC
and Chevron Land & Development Company as set forth in Sections 6.2 and 7.1 of the
Environmental Indemnification Agreement; and the insurance deductibles and self
insured retentions and programs specified in Sections 6.4(b), 6.4(d)(x) and 6.4(e) of the
Agreement; and
3. Subject to the written approval as to form by the City Attorney, authorize the City
Administrator to execute any further documents and instruments as may be necessary
or reasonably desirable to consummate the transactions contemplated by the
Environmental Indemnification Agreement or any part thereof.
Alternative Action(s):
The City Council may make the following alternative motion(s):
1. Deny the acceptance of the four-acre parcel for future park dedication and direct staff
accordingly.
2. Continue the acceptance of the four-acre parcel issue for future dedication and the
Environmental Indemnification Agreement and direct staff accordingly.
Analysis:
A. PROJECT PROPOSAL:
ARplicant: PLC, 19 Corporate Plaza Dr., Newport Beach, CA 92660
Location: Southwest corner of Promenade Parkway and Seagate Street, east of
Gothard Street and north of Garfield Avenue
PLC has proposed to dedicate a four-acre parcel located in the Holmby area of Holly Seacliff
to the City of Huntington Beach to satisfy its park obligations pursuant to the Holly Seacliff
Development Agreement (DA). Approximately 1.9 acres of the park parcel contains
contaminants. (A map of the vicinity is set forth in Attachment 1). The contaminated portion
of the parcel would be capped according to a closure plan. Chevron Land & Development
Company (CL&D) has the responsibility for completing the closure plan and ongoing
monitoring. PLC would construct the park to City specifications as delineated in the DA.
Due to the circumstances involved, staff is requesting that the City Council provide direction
at this time as to whether or not it will agree to accept the proposed site, rather than PLC
proceeding with overall site development plans first as has been the case for the other
residential/park plans proposed by PLC. Should the City Council decide to accept the park
parcel, City staff has negotiated an Environmental Indemnification Agreement that sets forth
RCAAPL02-42 1019Fina1.DOC -2- 10/20/2002 9:13 AM�
I
REQUEST FOR COUNCIL ACTION
MEETING DATE: October 21, 2002 DEPARTMENT ID NUMBER: PL02-42
the terms of conveyance and the responsibilities and rights of the three parties for City
Council consideration.
B. BACKGROUND:
The Holmby site consists of 15.6 acres and has been planned for neighborhood park and
medium density residential land uses since the early 1990s. The first conceptual
development plans for the Holmby area, from 1994, show.a four-acre neighborhood park in
the currently proposed location at the southwest corner of Promenade Parkway and Seagate
Street.
The Holmby site is part of the Holly Seacliff Specific Plan and is subject to the DA. The
requirements for a neighborhood park in this area originate in these two documents.
Holly Seacliff Development Agreement Park Requirements
The DA was approved in 1990. Section 2.2.2 (a) states that the developer is
required to dedicate 12 acres for neighborhood parks as identified in Exhibit D
of the DA. Exhibit D shows the general location for three parks and indicates
each is four acres. Section 2.2.2 (b) states that the neighborhood park site
location shall be determined via adoption of the Holly Seacliff Specific Plan.
Holly Seacliff Specific Plan Park Requirements
The Specific Plan was adopted in 1992. Section II indicates the general
location of three, four-acre neighborhood parks. In terms of the subject park, it
shows the location of the park east of Gothard Street and south of Promenade
Parkway.
Pursuant to the Specific Plan and DA, between approximately 1994 and 1996, CL&D, in
conjunction with the then developer, Seacliff Partners, undertook site remediation of the area
generally located south of Ellis Avenue, north of Garfield Avenue, east of Gothard Street and
northwest of Main Street, including the Holmby site. During the remediation process, a
number of technologies were employed in an effort to remediate the area once occupied by
a refinery and a sugar mill. However, the presence of Thiophenes and Mercaptans, which
produce a very strong skunk-like odor at very low concentrations (parts per billion),
prevented on-site remediation. The remediation technique finally employed included the
excavation and removal of contaminated soils (described as "source materials" in the project
report) to an off-site landfill utilizing a Teflon tent to cover the work area and equipment.
During 1995 and 1996, approximately 22,000 tons of contaminated soils were removed and
disposed of using this process. At the conclusion of the remediation and based on the best
information at the time, the City and the developer believed that all of the source material
had been removed. Subsequently roadway and residential development was started in the
area.
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REQUEST FOR COUNCIL ACTION
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During site preparation in the Holmby and Cove sites (the Cove property is a separate but
adjacent parcel located at the northeast corner of Garfield Avenue and Gothard Street
owned by CL&D) additional source material was discovered. However, due to the depth of
the source material and the now existing residential development in the immediate vicinity,
excavation was no longer a viable remediation option. Therefore, a soil vapor extraction
system was installed in 1997 to continue the remediation effort by reducing residual levels of
the source material.
On September 20, 1999, the City Council held a study session regarding the soil
contamination and remediation of the Holmby and Cove sites and future park development.
Subsequently, the City Council created an Ad Hoc Committee to further.examine the issues.
In 2001, the Ad Hoc Committee directed staff to explore the design alternatives, remediation
methods and legal implications of the City accepting the Holmby park site.
C. STAFF ANALYSIS AND RECOMMENDATION:
Park Location
Consistent with the Holly Seacliff Specific Plan, four acres of the total 15.6-acre Holmby site
have been proposed for a park. The remaining 11.6 acres are slated for medium density
residential use and PLC is estimating approximately 100 to 120 units. This remaining 11.6-
acre area is expected to require typical remediation techniques for hydrocarbons, etc. similar
to the rest of the Holly Seacliff area. The City Council Ad Hoc Committee discussed the
possibility of locating the park site in this "clean" area. The choice of a "clean" area for the
park would be the safest option for the City with regard to possible concerns about
environmental contamination since the City would avoid any risk of being responsible for the
liability associated with a site that did contain or had contained hazardous wastes or
materials. Although this remains an option should the City Council choose not to accept the
proposed park location, staff does not believe it is preferable for two reasons.
1. The Fire Department cannot approve any private use on the proposed park site,
with the exception of a parking lot, due to the lack of control of protecting the cap.
Therefore, if the site does not become a park, it likely would remain a "brownfield"
indefinitely as there would be no financial incentive for CL&D to cap or clean the
site.
2. The Community Services Department believes that the proposed site is a preferred
park location within the Holmby area because it is centrally located for the existing
and planned residential uses in this part of Holly Seacliff, and the site has easy and
safe access off Seagate Street. If the park were to be located off Gothard Street, it
would be located across from industrial uses and on a major arterial. Staff does not
believe that this is an appropriate location for a neighborhood park.
The Ad Hoc Committee also discussed the possibility of locating the neighborhood park in
another part of Holly Seacliff; however, PLC does not own any other vacant and/or unentitled .
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REQUEST FOR COUNCIL ACTION
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property. In terms of PLC acquiring suitable property, the only other residentially-designated
property in Holly Seacliff that is not currently developed with residential uses and would meet
the minimum size criteria is developed and underdeveloped property on the east side of
Gothard Street, south of Garfield Avenue. Although the east side of Gothard Street is
designated for future residential use, these properties are currently used for industrial
purposes including active oil wells and the clean-up implications of reuse of these properties
are unknown. Based on the foregoing, staff does not believe that locating the park in
another part of Holly Seacliff is a viable option.
The City Council could elect to waive the requirement for the park by changing the DA and
the Holly Seacliff Specific Plan. As of August 2000, PLC has completed two of the three
required neighborhood parks. Seagate Park consists of 3.1 acres of public park and 10.6
acres of Home Owners' Association-maintained park and restored wetland/riparian area.
Peninsula Park consists of 7.03 acres of public park. Thus, the developer has dedicated
10.13 acres of the total 12 acres that is required. Staff does not recommend this course of
action because the master planning for the eastern portion of Holly Seacliff was predicated
on a third neighborhood park. Approved land use densities for this area of Holly Seacliff are
greater, allowing for smaller lots and attached product type housing, which results in less
open space for residents. The location of a neighborhood park in this vicinity was intentional
to ensure that adequate open space would be provided to meet the area's recreational
needs.
Section 2.2.2(c) of the DA ties construction of the neighborhood parks to the number of units
built within a given planning unit in Holly Seacliff. Based on this requirement and the number
of homes already constructed in the planning unit that contains Holmby, no additional
residential development can occur until the park is completed. Once the DA expires in
December 2005, the City will not be able to compel construction of the park. If, post-DA, the
City allows residential development to go forward on the 11.6-acre portion, the City would be
able to require dedication of park land pursuant to the Quimby Act. Based on the type and
number of units that PLC is forecasting, this would result in a maximum of 1.6 acres of public
park, substantially less than the four acres that,would be achieved under the DA.
After evaluating the potential park location options, staff believes that the proposed site best
meets the recreational and planning needs of the community. Based on this conclusion, the
remainder of this analysis focuses on how best to ensure that the City's interests are
protected should it decide to accept the property. Accordingly, the following sections review
the areas of concern regarding the property, i.e. the type of contamination, the status of the
remediation to-date, the proposed-capping plan, the park design and the Environmental
Indemnification Agreement.
Characterization of Holmby Park Site
In July 1998, ChemRisk completed the "Risk Evaluation of Cove and Holmby Park
Remediation and Closure Strategy" for the property on behalf of CL&D. Site characterization
studies identified several chemicals of interest and the remedial standards and methods that
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REQUEST FOR COUNCIL ACTION
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could be used to clean the site. The City of Huntington Beach Fire Department, the Fire
Department's consultants and the Regional Water Quality Control Board (RWQCB) have
evaluated these studies and tests.
The chemicals of interest on the Holmby site include: sulfur compounds (Thiophenes,
Mercaptans, Sulfides and Disulfides) and Total Petroleum Hydrocarbon (TPH) components
(Benzene and Polynuclear Aromatic Hydrocarbons). These materials are buried within an
approximate 1.92-acre area in the middle of the proposed 4.01-acre park site. Based on
known data, the sulfur compounds do not migrate, nor do they have any known health risk
associated with them. However, they have a very strong skunk-like odor that would be
considered a nuisance if exposed or disturbed. The TPH components can be characterized
as organic compounds that have a potential health risk through direct contact with
contaminated soil and vapor inhalation. TPH is composed of many individual hydrocarbon
constituents with varying levels of toxicity. The TPH components are required to be
remediated to the standards in the City of Huntington Beach City Specification 431-92.
Status of Remediation/Containment
CL&D conducted vapor extraction of the Holmby (and Cove) properties from February 1997
to April 2002. The vapor extraction accomplished the following: reduced the TPH to levels at
or below City Specifications and removed other soil contamination to such a low
concentration, as determined by "Rebound tests" so that operating the soil vapor extraction
system is no longer technically and economically feasible to operate. In April 2002, the
"Shut Down Test Report" was approved and the Soil Vapor Extraction system was
decommissioned. The Fire Department's consultants and the RWQCB reviewed the final
report.
Pursuant to direction from the Ad Hoc Committee, staff contacted various state agencies to
solicit the active involvement and oversight of another regulatory agency. The RWQCB
became actively involved in the review of the work plan for containment of the site in 2001.
Since that time the City's Fire Department, acting as the Lead Enforcement Agency (LEA),
has worked in cooperation with the RWQCB to provide oversight of the remediation. The
RWQCB has approved the closure report and has reviewed and commented on the cap
design. Their comments are incorporated into the latest design revision, along with those
provided by City staff.
Proposed Closure/Containment Plan
Concurrent with remediation, work progressed on the conceptual design for a "cap" over the
contaminants. Due to the nuisance odor that would result from soil extraction and the depth
of the material, the Fire Department believes that the most reasonable solution for containing
the site is capping. The "cap" provides a vapor barrier to prevent upward migration of the
strong odors and percolation of water through the contamination zone. The cap design,
which totals approximately five feet in thickness, would include the following components,
from bottom to top, which are described more fully in Attachment 3. /
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REQUEST FOR COUNCIL ACTION
MEETING DATE: October 21, 2002 DEPARTMENT ID NUMBER: PL02-42
- Vapor Collection Layer— installed on top of existing soils, approximately one foot
thick; includes subsurface piping.
- Impermeable Layer— constructed of high-density polyethylene for the purpose of
preventing upward migration of soil vapor or downward infiltration of water.
- Drainage Layer— constructed of either a geocomposit material or coarse sand less
than one foot thick to prevent infiltrating water from collecting on top of the liner;
water will be directed to collection system.
- Barrier Layer— constructed of either a highly visible geogrid material or of cobbles
and coarse gravel to function as a warning to workers to prevent inadvertent
digging into the underlying layers
- Engineered Clean Fill — a minimum of three feet to allow adequate room for
structural footings for park equipment and plant root systems.
The closure plan also includes ongoing monitoring. Soil vapor monitoring would be
conducted from vapor probes installed around the perimeter of the cap. Additional
monitoring would be conducted from the subsurface piping in the vapor collection layer.
The Ad Hoc Committee asked if there were other viable clean-up methods that could be
employed so that the contaminants would not have to remain in place. The only other
cleanup method that is possible would necessitate excavating the contaminated portion of
the site to a depth of 30 to 50 feet. Due to the odor involved and the fact that the
surrounding area is heavily developed, the Fire Department believes that this approach is
not practical.
Park Design
The neighborhood park plan has been developed by staff and PLC based on the capping
design and the desire to eliminate any disturbance of the odor-causing compounds. To that
end, the capped portion of the park primarily will contain impervious improvements. These
will consist of a tennis court, two rubberized surface tot lots, a rubberized surface picnic
area, a basketball court, a volleyball court, walkways and a parking lot, as described in
Attachment 4. The large impervious hardscape area will result in expanded recreation
amenities, including a tennis court, which are not included in current neighborhood park
design standards. Conversely, the non-capped portion of the site will consist primarily of
turf, though some of the hardscape improvements extend into this area. Staff has worked
with PLC to ensure that the cap design allows sufficient space for the required footings for
the structures, e.g. basketball hoops. The park will not be lighted for night use but will
include security lighting. Staff has worked with PLC to design recreational amenities with the
highest public appeal that meet the requirements of a hardscape area necessary for cap
protection. This park proposal will be presented to the Community Services Commission for
their input as to the final park design.
Because of the cap design, much of the proposed park site will be substantially elevated in
comparison to the surrounding property. The highpoint of the site will have a finished grade
of 69 feet and the outer limits of the capped area will be at 68 feet. Top of curb elevation for
Seagate Street is approximately 60.5 feet and top of curb elevation for Promenade Parkway
. . D
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is approximately 55 feet. From Promenade Parkway, the park site will gradually rise to the
highpoint. From Seagate Street, a steeper slope is required because the required capping
extends to the curb. The other two sides of the proposed park site abut the portion of the
Holmby site that is proposed for residential development. There will be an approximate 10-
foot differential in grade at the northwest property line, adjacent to the proposed tennis court,
but only a 3.5-foot differential at the southwest property line. There would also be a 50' x 50'
enclosed area for monitoring equipment at the southwest corner adjacent to Seagate Street.
Although having such an elevated park site is not preferred, Community Services and
Planning staff believe that there are adequate buffers between the proposed park site and
existing development and that similar buffers can be incorporated into the design of the
future residential units proposed for Holmby. The park site is separated from existing homes
by Promenade Parkway and Seagate Streets. Both of the streets include a minimum 15-foot
wide landscape area adjacent to the existing homes, and on the park side of Promenade
there is an existing 20-30 foot wide eucalyptus windrow that will also assist in screening the
park. In terms of the future Holmby residential area, as noted, the southwest property line
has a minimal differential in grade and there is a gradual slope that provides approximately
65-100 feet of separation between the property line and the volleyball court, the closest
active use. For the northwest property line adjacent to the tennis court, a ten foot high
retaining wall will be required. Staff has informed PLC that, on the residential side of the
retaining wall, landscape planters and a planted slope would be required along with a
minimum 20-foot setback to any residences and installation of dual-paned windows in the
units. Staff has also requested that PLC locate the private recreational open space that will
be required for the residential project adjacent to the tennis court to minimize potential noise
impacts. Finally, as noted, the park will not be lighted for nighttime use, which would further
minimize noise impacts.
Environmental Indemnification Agreement
The Environmental Indemnification Agreement (Agreement), Attachment 2, is designed to
protect the interests of the City, as well as CL&D and PLC, with respect to the proposed park
site. Recital E on page 1 of the Agreement states:
"The intent of this Agreement is that City bear no responsibility or liability for
Environmental Contamination or Covered Contamination or any other
contamination at the Property other than that caused by any activities of the
City or that which occurred after conveyance of the Property to City and which
was not caused by, did not result from or was not associated with any activities
of CL&D or PLC."
In the course of negotiations regarding the Environmental Insurance Policy, the carrier
mandated that the property use be limited to public recreational purposes only. Accordingly,
staff revised the deed and the easement language (Exhibits D & E) to reflect this limitation.
City Council should be aware of this property use limitation so that the City does not
jeopardize its rights under the Agreement. For the purposes of the Agreement, the park site
has been divided into two parts: the "clean" part and the "contaminated" part that would be
capped. The clean part that essentially surrounds the contaminated portion would be
O
RCAAPL02-42 1019Final.DOC -8- 10/20/2002 9:13 AM
REQUEST FOR COUNCIL ACTION
MEETING DATE: October 21, 2002 DEPARTMENT ID NUMBER: PL02-42
conveyed to the City by a grant deed. (See Section 5.4(a).) The contaminated part, after
capping and construction of the park, would be conveyed to the City by an irrevocable,
perpetual, exclusive easement, which can be maintained as long as the City wishes unless
the City abandons the park. (See Section 5.4(b).) Further, such an easement would not be
rendered invalid if the City breached the cap and/or its obligations under the Agreement
although the City could be liable for damages in the event of a breach. The easement would
provide the City with the surface rights for park purposes and would also allow the City to
use the upper three feet of engineered clean fill for grading or other park purposes as long
as the City did not interfere with the cap under the park. Section 5.3 of the Agreement lists
the items that must be completed prior to the City accepting conveyance. These include:
CL&D satisfying its obligations to remediate Covered Contamination and Environmental
Contamination as defined in the Agreement; City approving a site assessment/audit for the
"clean" area, all required insurance policies being in place, and PLC constructing the park in
accordance with the requirements of the City. Under Section 5.5 of the Agreement, the City
would reserve its right to convert its easement rights into ownership at a future date by
accepting a conveyance of the easement property by a grant deed without paying any
consideration to PLC.
Pursuant to Section 7.2 of the Agreement, the City is waiving all statutory and common law
claims against PLC and CL&D with respect to Covered Contamination and/or Environmental
Contamination connected with the Property. The City's rights and remedies with regard to
PLC and CL&D and their affiliates with respect to Environmental Contamination and Covered
Contamination will be limited to those set forth in this Agreement. During the negotiations,
PLC and CL&D both indicated that they wished to have all of their obligations and
responsibilities to the City identified in a single agreement and that they did not feel it would
be fair to allow the City to be able to pursue a cause of action against either or both of them
if the obligation was not identified in the Agreement. Staff agreed to the request during the
negotiations and thereafter spent considerable time ensuring that all of the rights and
remedies important to the City are included in the Agreement.
Pursuant to the Agreement, both PLC and CL&D are providing indemnification protection to
the City, which covers damages and injuries caused by the Environmental Contamination
and Covered Contamination and their performance and/or failure to perform the Agreement.
(See Sections 5.2, 6.1, 6.3 and 7.1 and 7.3 of the Agreement.) PLC and CL&D will not be
responsible for loss of business by the City, diminution in the value of the Property and loss
of goodwill by City and their indemnification obligations under Section 6.1 of the Agreement
will not apply to these same issues. (See Section 7.3.)
Council is advised that the indemnification protection provided to the City is only as good as
the financial backing of the indemnitor. PLC will essentially have no assets once it develops
and sells all of its property. CL&D may be in a similar situation. Therefore, the
environmental insurance policy becomes more important in this transaction because
indemnification protections provided by PLC and CL&D to the City may not be viable options
as PLC and CL&D may not be in existence or not have the financial backing to sufficiently
indemnify the City.
RCAAPL02-42 1019Final.DOC -9- 10/20/2002 9:13 AM
REQUEST FOR COUNCIL ACTION
MEETING DATE: October 21, 2002 DEPARTMENT ID NUMBER: PL02-42
Under the Agreement, the City also has indemnification, defense and hold harmless
obligations to PLC and CL&D. (See Sections 6.2, 6.3 and 7.1.) Section'6.2 and 7.1 provide
as follows:
"6.2 City's Indemnity Obligations. After the Property is conveyed to City in
accordance with Section 5.4, City shall protect, defend, indemnify and hold harmless
CL&D and PLC from and against all claims, damages, losses, expenses, judgments,
demands and defense costs (including, without limitation, costs and fees of litigation
(including arbitration) of every nature or liability of any kind) arising out of, resulting
from, or in connection with, directly or indirectly, the Property. This indemnification and
defense obligation of City excludes such claims, costs, expenses, losses or liabilities (i)
that result from any negligence, willful misconduct or breach of this Agreement by
CL&D, PLC or any of their agents, vendors, contractors and/or subcontractors, and/or
(ii) that are covered by CL&D's and PLC's indemnification, defense and hold harmless
obligations set forth in this Agreement."
"7.1 Increased Costs of Remediation. A party in default of this Agreement shall
be responsible for any and all increased costs of remediation, whether direct or indirect,
related to any default of this Agreement and hereby releases, defends and indemnifies
the non-defaulting party(ies) for all liability related to such default."
The City's indemnification, defense and hold harmless obligations to PLC and CL&D cover
claims and damages arising out of or in connection with the park site after it is conveyed to
the City. For instance, such claims and damages would include an injury resulting from a
slip and fall accident. The main difference here, as opposed to other park sites, is that the
City is agreeing to defend, indemnify and hold harmless other parties, PLC and CL&D, for
these claims. With respect to other parks dedicated to the City by developers, the City would
not be obligated to defend, indemnify and hold harmless the developers for such claims.
PLC and CL&D requested this indemnification language because, after conveyance, the City
will control the surface of the park site, and PLC and CL&D will have no control over the
property's use although CL&D or PLC will continue to own the part under which the City has
easement rights.
The insurance provisions allow PLC & CL&D to maintain deductibles and self-insured
retentions and programs.
(a) With respect to PLC's general public liability insurance, PLC is requesting a
$100,000.00 self-insurance retention or deductible. (See Section 6.4(b).)
(b) With respect to PLC's workers' compensation and employers' liability insurance
(see Section 6.4(a)) and general public liability insurance (see Section 6.4(b)),
CL&D is requesting that it meet these obligations through the self-insurance
program that it participates in. (See Section 6.4(e).)
(c) The environmental insurance policy also contains a $100,000.00 deductible per
incident. (See Section 6.4(d)(x).) D
RCAAPL02-42 1019Final.DOC -10- 10/20/2002 9:13 AM
REQUEST FOR COUNCIL ACTION
MEETING DATE: October 21, 2002 DEPARTMENT ID NUMBER: PL02-42
The City's Risk Management Division has been actively involved in the preparation of the
Agreement with respect to the insurance provisions. City staff is recommending that Council
approve the City's indemnification obligations to PLC and CL&D and the insurance
deductibles and self-insurance retentions set forth above.
The.Agreement also contains a prevailing party attorney's fees provision (see Section 9.2 of
the Agreement), which is different from the City's standard each-party-pays provision.
Section 6.4.of the Agreement requires that PLC and CL&D obtain and maintain certain
insurance policies to afford appropriate protection to the City. The required insurance
policies include general public liability insurance, workers' compensation and employers'
liability insurance and environmental insurance. Section 6.4(d) of the Agreement identifies
the environmental insurance coverage that has been negotiated by City Staff. The
environmental insurance policy will provide $10,000,000.00 in coverage for a 10-year period
commencing from the date the property is conveyed to the City. The full premium of the
policy will be paid in advance by CL&D. The policy will cover cleanup costs for both new and
pre-existing unknown contamination that is discovered on the property or that migrates off
the property. The policy will also provide protection for liability to third parties because of the
contamination. The policy will not cover City employees who have a claim relating to the
property that arises out of their employment.
The policy requirement contains a renewal option for an additional 10-year term. This
renewal option is very restricted and cannot be guaranteed at this time. However, the
agreement provides that if the City is able to obtain a renewal of the Environmental
Insurance Policy and elects to do so or if the City obtains environmental insurance from the
same or different carrier with the same or different coverage and conditions, CL&D will be
required to pay the renewal or new insurance premium up to $250,000.00. (Page 13, Section
6.4(d)(ix) of the Agreement).
In terms of whether or not the proposed limits of insurance would provide sufficient coverage
for the City, CL&D and PLC, all of which could make claims against the policy, staff has
discussed with CL&D and PLC the cost of the cap and park improvements and with outside
counsel the potential liability associated with third party claims and defense costs. The
installed cost of the cap is estimated to be $2 million and the park improvements will cost
$1.1 million. It is much harder to predict either defense costs or third party liability claims.
However, staff notes that the contaminants present on the property are of concern because
of their odor impacts rather than for their toxicity. Further, there have been no claims in the
past that the City is aware of arising from the presence of these contaminants at the park
site. Also, the contaminants will remain in the ground and be covered by the cap, which will
greatly minimize the possibility of any exposure of the public to these materials. To assure
that Park construction activities do not intrude into the remedial barrier cap and or damage
any remediation equipment, Staff negotiated that PLC will reimburse the City for costs for
employing an engineering firm to serve as the City's on-site observer during Park
Construction. (Attachment 2, Page 6, Section 5.2) Finally, conveyance of the park will not
occur until the cap is installed and the improvements constructed.
RCAAPL02-42 1019Final.DOC -11- 10/20/2002 9:13 AM
REQUEST FOR COUNCIL ACTION
MEETING DATE: October 21, 2002 DEPARTMENT ID NUMBER: PL02-42
The environmental insurance policy will not cover the following risks:
1. Releases of contaminants or damage to the remediation/monitoring equipment
or to the barrier over the contaminants caused by a deliberate act of a City
employee or an act that was grossly negligent;
2. Damage to the remediation/monitoring equipment or the barrier without any
release of contaminants to the environment, as would be the case if the barrier
was damaged by an earthquake; however, it should be noted that CL&D remains
obligated to maintain and repair the barrier, if needed, regardless of whether
environmental insurance protection is available or not;
3. Obligations for non-environmental matters such as a slip and fall accident or
subsidence problems caused by poorly compacted soils; and
4. City employees who may have a claim relating to the property that arises out of
their employment (Employees are coved under the City's Workers
Compensation Insurance.)
Although there will always be uncertainty associated with possible future claims and the
proper limits of insurance policies, staff believes that the proposed policy would adequately
protect the interests of the City.
Environmental Status:
The subject request is exempt pursuant to Section 15061(b)(3) of the California
Environmental Quality Act because it will not have any effect on the environment. The
proposed capping of the site and construction of the park is covered by Environmental
Impact Report No. 90-1 that was approved for construction of improvements in the Holly
Seacliff area.
RCAAPL02-42 1019Final.DOC -12- 10/20/2002 9:13 AM
REQUEST FOR COUNCIL ACTION
MEETING DATE: October 21, 2002 DEPARTMENT ID NUMBER: PL02-42
Attachment(s):
City Clerk's
Page Number No. Description
1. Vicinity Map
2. Environmental Indemnification Agreement
Exhibit A - Legal Description for Promenade Neighborhood Park Site
including exhibits describing Parcel 1, Parcel 2 and the
Easement Area
Exhibit B - List of Remedial Action Plan Reports— Park Area
Exhibit C - List of Environmental Reports— Park Area
Exhibit D - Sample Grant Deed for conveyance of property at the time
remediation is complete.
Exhibit E - Easement Agreement
Exhibit F - Memorandum of Environmental Indemnification Agreement
3. Proposed Closure Plan
4. Proposed Park Design
RCA Author: MBB/HZ/MD/JE
103
RCAAPL02-42 1019Final.DOC -13- 10/20/2002 9:13 AM
ATTACHMENT . # l '
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ATTACHMENT #2 '
ENVIRONMENTAL INDEMNIFICATION AGREEMENT
THIS ENVIRONMENTAL INDEMNIFICATION AGREEMENT (the "Agreement") is
made as of October.I, 2002 (the "Effective Date")by and between Chevron Land and
Development Company, a Delaware corporation ("CL&D"), PLC, a California general
partnership ("PLC") and the City of Huntington Beach, a municipal corporation of the State of
California ("City").
RECITALS :
A. CL&D, Pacific Coast Homes, Huntington Beach Company, Mansion Properties,
Inc. and Chevron U.S.A. Inc. entered into a purchase and sale agreement dated December 7,
1995 (the "Purchase and Sale Agreement") whereby CL&D agreed to sell and PLC and MS
Vickers L.P. agreed to buy certain real property more particularly described in the Purchase and
Sale Agreement, which real property included that certain four(4) acres of real property located
in the City of Huntington Beach, County of Orange, and State of California (the "Property") as
described in Exhibit "A" attached hereto. In accordance with the Purchase and Sale Agreement,
PLC acquired the Property.
B. The Property is subject to Development Agreement No. 90-1, recorded
November 14, 1990, as Document No. 90-599766 in the Official Records of the County of
Orange, California (the "Development Agreement").
C. The Property contains certain contamination which is being remediated by CL&D
in accordance with the Purchase and Sale Agreement (and which CL&D contends is non-CL&D
generated contamination). As part of said remediation, CL&D has submitted to City, for its
approval, various documents listed on Exhibit "B", attached hereto (collectively, the "Remedial
Action Plan") covering the Property and contamination located thereon.
D. In accordance with the Development Agreement, PLC is obligated to dedicate to
City and to improve a four-acre public neighborhood park (the "Park"). City has determined
that the Property is acceptable for dedication and improvement for the Park as provided in this
Agreement, including without limitation, the indemnification of City by PLC and CL&D as set
forth herein.
E. The intent of this Agreement is that City bear no responsibility or liability for
Environmental Contamination or Covered Contamination or any other contamination at the
Property other than that caused by any activities of City or that which occurred after conveyance
of the Property to City and which was not caused by, did not result from or was not associated
with any activities of CL&D or PLC.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants expressed herein
and other good and valuable consideration, the parties hereto agree as follows:
LA 103482 v2 ! v
1. Definitions. When used in this Agreement, the following terms shall have the
following meanings:
1.1 Covered Contamination. The term "Covered Contamination" means
contaminants or other toxic or hazardous substances, materials, constituents or wastes
existing in, on, under, about, migrating from or emitted from the Property which are
subject to a valid governmental cleanup directive under applicable federal, state or local
laws or regulations and which: (a) were not caused by or associated with any activities of
City, its agents, contractors, subcontractors and/or vendors and occurred before
conveyance of the Property to City; or(b) were caused by or associated with any
activities of CL&D, PLC, their agents, contractors, subcontractors and/or vendors and
occurred after conveyance of Property to City.
1.2 Environmental Contamination. The term "Environmental
Contamination" means the contaminants or other toxic or hazardous substances,
materials, constituents or wastes referenced in the Remedial Action Plan and which:
(a) were not caused by or associated with any activities of City, its agents, contractors,
subcontractors and/or vendors and occurred before conveyance of the Property to City; or
(b) were caused by or associated with any activities of CL&D, PLC, their agents,
contractors, subcontractors and/or vendors and occurred after conveyance of Property to
City.
1.3 Environmental Reports. The term "Environmental Reports" shall mean
those certain reports which are listed on Exhibit "C" to this Agreement.
2. Environmental Remediation and Ongoing Monitoring.
2.1 Ongoing Remediation Action Plan. CL&D has almost completed the
remediation of Environmental Contamination on the Property to the standards contained
in the Remedial Action Plan. There are currently, and after completion of the
remediation portion of the Remedial Action Plan there will continue to be, monitoring
systems located on the Property which will be used to monitor and remediate, as required,
remaining contamination that is located on the Property. Prior to the conveyance of the
Property to City in accordance with this Agreement, City shall issue: (a) a closure report
stating that the portion of the Property to be conveyed in fee and the portion of the
Property to be conveyed by easement are in compliance with City specifications for
remediation except for the materials still being addressed in accordance with the
Remedial Action Plan; and (b) a letter that the remedial, monitoring and contingency
plans for the portion of the Property to be conveyed by easement are in place and are
approved by City.
2.2 Newly-Discovered Contamination. If any contamination, including
without limitation Covered Contamination and/or Environmental Contamination, is
encountered during the construction of the Park improvements, PLC shall provide City
and CL&D with notice of such condition and CL&D shall, consistent with applicable
regulatory requirements, ensure, at its sole cost and expense and subject to the
reasonable, written approval of City, the appropriate handling, remediation and
LA 103482 v2 -2-
disposition of the contamination. However, CL&D shall not be required to obtain
approval of City prior to contesting any governmental order, request and/or regulation in
connection with newly-discovered contamination, regardless of issuing agency, but must
advise City in advance of its intent to do so.
3. Environmental Work.
3.1 Access to the Property. CL&D, its agents, contractors, subcontractors
and/or vendors shall have reasonable access to the Property and, to the extent reasonably
necessary, the right to disrupt use of the Property in order to perform investigatory,
remedial and monitoring activities in connection with Environmental Contamination,
Covered Contamination or both on the Property. City, its successors or any occupant of
the Property shall minimize any operations on and/or uses of the Property that
unreasonably interfere with the aforesaid investigatory, monitoring and remedial
activities until the same are completed. Further, City shall reasonably cooperate with
CL&D in minimizing the costs that CL&D will incur for the aforesaid investigatory,
monitoring and remedial activities. CL&D, its agents, contractors, subcontractors and/or
vendors shall cooperate with City to minimize interference with City's use of the
Property. CL&D, at its sole cost and expense, has previously installed, and may in the
future install, monitoring wells or remediation equipment on the Property to support
CL&D's investigatory, monitoring and remediation work. CL&D, at its sole cost and
expense, shall also have the right to install and maintain separate utilities on the Property
in support of such work.
3.2 Control of Work. CL&D shall diligently pursue any and all investigatory,
monitoring and remedial work undertaken pursuant to this Agreement. Until CL&D's
obligations are satisfied in accordance with Section 4.4 of this Agreement, CL&D (acting
by itself or through its agents, contractors, subcontractors and/or vendors) shall have the
sole and exclusive right:
(a) to perform investigatory, monitoring and remediation work with
respect to Covered Contamination or Environmental Contamination or both as
deemed necessary by CL&D or as legally required by any federal, state or local
regulatory agency; and
(b) subject to the terms of this Agreement, to, with the reasonable
cooperation and participation of City, communicate and negotiate with federal,
state and local regulatory authorities regarding any environmental investigatory
and remediation work with respect to Covered Contamination or Environmental
Contamination undertaken by CL&D.
3.3 Cost-Efficient Manner. Although the cost of investigation, remediation
and monitoring of covered Contamination and Environmental Contamination is to be
borne by CL&D pursuant to this Agreement, City and CL&D shall reasonably cooperate
in minimizing the costs that CL&D will incur for the aforesaid investigatory, monitoring
and remedial activities.
LA 103482 Q -3-
4. Dealings with Governmental Agencies.
4.1 Procedures Regarding Government Directives, Orders or Requests. In the
event City, PLC or CL&D receives from a governmental entity a directive, order or a
request to perform any investigation, monitoring and/or remediation of the Property, or a
notice that such a directive, order or request will be issued, the following shall apply:
(a) The party receiving such directive, order, request or notice shall
immediately give notice thereof to the other parties.
(b) Upon notice to CL&D of a directive, order, request or notice from
a governmental entity, CL&D shall provide notification to City and PLC as to
whether or not CL&D shall assume responsibility for the government directive,
notice, order or request, and CL&D's notification to City and PLC shall be
provided not later than the earlier of(i) forty-five (45) days after CL&D's receipt
of said directive, order, notice or request, or(ii) the date that is fifteen (15) days
prior to the response date stated in the government directive, order, notice or
request. If CL&D elects not to assume responsibility for the government
directive, order, notice or request, CL&D retains the right to subsequently assume
the responsibility for any such directive, order, notice or request. If CL&D does
not assume responsibility for the government directive, order, notice or request,
then City shall have the right to pursue all available remedies, as appropriate.
Notwithstanding the foregoing timing limitations for CL&D's notification to City
and PLC concerning assumption of responsibility for a government directive,
order, request or notice, should such directive, order, request or notice be received
with less than twenty-five (25) days to respond to such directive, order, request or
notice, then CL&D shall notify City of CL&D's decision whether or not to
assume responsibility within fifteen (15) days of receipt of such directive, order,
request or notice.
(c) City, PLC and CL&D shall meet and confer regarding possible
action that might be taken with respect to any government directive, order, request
or notice.
(d) CL&D shall have the full authority and exclusive right to control
all negotiations with any and all federal, state.and local governmental entities
which assert or attempt to assert jurisdiction or other oversight over the
investigation, monitoring and/or remediation of Covered Contamination and
Environmental Contamination. City at it own cost and expense shall have the
right to attend and participate in meetings with such governmental agencies. City
shall reasonably cooperate and participate with CL&D as necessary to support
such negotiations. Each party hereto shall keep the other parties informed as to
any significant contacts with said agencies and shall notify the other parties of any
scheduled meetings with said agencies.
4.2 Responsibility for Contamination. It is understood and agreed by all
parties that City bears no responsibility or liability for Environmental Contamination or
-
LA 103482 v2 4-
Covered Contamination or any other contamination at the Property other than that: (i)
caused by or associated with any activities of City, its agents, contractors, subcontractors
and/or vendors or(ii) which occurred after conveyance of the Property to City and which
was not caused by and not associated with any activities of CL&D, PLC, their agents,
contractors, subcontractors and/or vendors. CL&D and PLC each shall undertake any
and all actions reasonably necessary to effectuate and comply with the intent of this
Section 4.2.
4.3 Cooperation. CL&D and City agree to reasonably cooperate with each
other with respect to any investigatory or remediation actions pertaining to any Covered
Contamination. City agrees to support any reasonable proposal of CL&D pertaining to
Covered Contamination that is submitted by CL&D to a governmental agency. City shall
not seek the issuance of, nor issue on its own behalf, a governmental directive, order or
request except to the extent necessary to protect the health and safety of City and the
public. CL&D shall have the right to challenge any government directive, order, request
or notice and not assume responsibility therefor if. (a) its challenge is based on a good
faith belief that the directive, order, request or notice is not in conformance with existing
laws, rules regulations and/or ordinances or that the contamination which is the subject of
the government directive, order, request or notice does not meet the definition of Covered
Contamination and/or Environmental Contamination, (b) CL&D has satisfied its
obligations under this Agreement, or(c) the contamination which is the subject of the
governmental directive, order, request or notice was caused by any activities of City, its
agents, contractors, subcontractors and/or vendors or occurred after conveyance of the
Property to City and was not caused by and was not associated with any activities of
CL&D, PLC, their agents, contractors, subcontractors and/or vendors. City and PLC
shall reasonably cooperate with CL&D's attempt to comply with any government order.
4.4 Standard for Corrective Work. CL&D shall be deemed to have satisfied
its obligations hereunder to correct any known Covered Contamination (exclusive of long
term monitoring, maintenance, including without limitation redesign and repair of the
remediation system, and remediation of later discovered Covered Contamination, as
required) when: (i) City, PLC and CL&D mutually agree in writing or (ii) the lead
environmental agency overseeing the remediation acknowledges in writing (by an
authorized and official agency action) that no further action for any remedial activity
(exclusive of monitoring and maintenance, including without limitation redesign and
repair of the remediation system, and remediation of later discovered Covered
Contamination, if applicable) is required at the time of issuance of such
acknowledgement. CL&D shall be responsible for such long term monitoring,
maintenance, including without limitation redesign and repair of the remediation system,
and remediation of any later discovered Covered Contamination as may be required by a
regulatory agency.
1
4.5 Correspondence with Governmental Agencies. Commencing with the
Effective Date of this Agreement, CL&D and PLC each shall send to all the other parties
to this Agreement a copy of all written communications between said party and any
governmental agency with respect to Environmental Contamination, Covered
Contamination or any other contamination on the Property.
LA 103482 Q -5-
5. Property Use Restrictions, Requirements and Conveyance to City.
5.1 Co-Existence of Monitoring Wells and/or Remediation Equipment with
City's Improvements. City understands that certain monitoring wells ("Monitoring
Wells") and/or remediation equipment ("Remediation Equipment") (collectively
"Facilities") are or may be located on the Property at specific locations. CL&D shall
have the right to make relocations of Facilities in the open space areas of the Property at
no cost or expense to City if CL&D shall be required to relocate any portion of the
Facilities pursuant to any order or directive from a governmental agency with jurisdiction
thereof, e.g., the Regional Water Quality Control Board. City and/or PLC agree to grant
to CL&D, at no cost to CL&D, easements, permits or other rights as necessary to comply
with such order or directive. CL&D shall abandon any monitoring wells in accordance
with all applicable legal requirements and shall quitclaim any easement held by CL&D
for such abandoned well. If any Monitoring Wells, Remediation Equipment, piping or
other structures associated with CL&D's corrective action being performed on the
Property becomes damaged, creating a potentially unsafe or nuisance condition, CL&D
shall immediately so notify City. Responsibility for costs associated with the damaged
Monitoring Wells, Remediation Equipment, piping, or other structures associated with
CL&D's corrective action shall be governed by the parties' indemnity obligations in this
Agreement. CL&D shall fully cooperate with City regarding the location, installation,
operation and size of the Monitoring Wells, Remediation Equipment,piping or other
structures associated with CL&D's corrective action being performed on the Property to
minimize interference with City's use of the Property. City shall reasonably cooperate
with CL&D to minimize the cost to CL&D of any corrective action.
5.2 Construction Due Diligence. Prior to conveyance to City, PLC shall
construct the Park for public use on the Property. PLC understands and agrees that it
shall be solely responsible, at its sole cost and expense, for any due diligence surveys of
the Property that may be necessary to protect human health or the environment in
connection with its activities that involve subsurface excavation or soil disturbance and
shall implement the recommendations of any such surveys in connection with PLC's
activities on the Property. PLC understands that such surveys may determine the
presence, nature and character of any Environmental Contamination, Covered
Contamination, other contamination or petroleum impacted soils and groundwater;
provided, however, nothing set forth in this Section shall relieve CL&D of any of its
obligations under this Agreement. PLC shall also implement such procedures and/or
special industrial hygiene precautions as may be required to mitigate potential
emergency, health or safety risks to workers, which may be encountered during
construction. PLC shall hold City and CL&D harmless and indemnify City and CL&D
from and against any and all claims which may arise as a result of PLC's, its agent's,
vendor's, contractor's and/or subcontractor's failure to take such emergency measures
and precautions as are required by this Section 5.2. PLC shall reimburse City for the
costs of employing an engineering firm to serve as an observer on site during the
construction to monitor the construction activities and observe whether or not there is any
the intrusion into the remedial barrier and/or damage to any Remediation Equipment.
City will require that the engineering firm carry errors and omissions insurance.
LA 103482 Q -6-
5.3 Schedule for Conveyance of the Propertyty. City shall accept
conveyance of the Property within ninety (90) days of the last to occur of the following
events:
(a) City and all regulatory agencies that are actively involved in the
remediation of Environmental Contamination as of the Effective Date of this
Agreement have indicated in writing that CL&D has satisfied its obligations to
remediate Environmental Contamination in accordance with the Remedial Action
Plan and known Covered Contamination pursuant to Section 4.4, both exclusive
of any monitoring and maintenance, including without limitation redesign and
repair of the remediation system.
(b) CL&D has acquired, and CL&D has named City, PLC and PLC's
affiliates as additional insureds under an Environmental Site Liability Policy of
Insurance that is in accord with the requirements of Section 6.4(d) (the
"Environmental Insurance Policy").
(c) CL&D has satisfied its obligations hereunder to remediate any
known Covered Contamination pursuant to Section 4.4 of this Agreement.
(d) CL&D has satisfied all its insurance obligations pursuant to
Section 6.4 of this Agreement.
(e) City has approved in writing a site assessment/audit submitted by
CL&D showing that the portion of the Property subject to conveyance by grant
deed in accordance with Section 5.4(a) below meets City specifications.
(f) City has approved, in writing, the Park improvements.
5.4 Grant Deed and Easement. The Property shall be conveyed as follows:
(a) That portion of the Property described as Dedication Parcels 1 and
2 in Exhibit "A" shall be conveyed by grant deed in the form of Exhibit "D",
both attached hereto.
(b) That portion of the Property described as the Easement Area in
Exhibit "A" shall be conveyed by an irrevocable, perpetual and exclusive
easement in the form of Exhibit "E", both attached hereto. Said easement shall
provide for the use by City of any clean fill placed over the contamination barrier
that is installed by CL&D so long as there is no physical intrusion into the barrier
by City, City's representatives, or any other party.
(c) A Memorandum of Environmental Indemnification Agreement in
the form of Exhibit "F" shall be prepared and recorded.
5.5 Further Conveyance by Grant Deed. It is understood and agreed by the
parties that City may at any time in the future (without any limitation in time) require that
the portion of the Property that is subject to the easement described in Section 5.4(b)
G•v
LA 103482 Q -7-
above, or any parts thereof, be conveyed to City by grant deed(s) without payment of any
consideration by and at no cost to City. At the end of the term of the Environmental
Insurance Policy, City may consider taking fee title to the portion of the Property under
easement pursuant to Section 5.4(b). If City later takes fee title to part or all of the
portion of the Property under easement pursuant to Section 5.4(b), the part of the
Property to be taken shall be conveyed by grant deed in the form of Exhibit "D".
5.6 Conveyance of the Property. City hereby acknowledges that PLC may
convey some or all of the Property to CL&D and/or to one or more of its affiliates in
advance of a transfer of the Property to City as provided in Section 5.4 hereinabove. If
such conveyance occurs, it will occur: (i) after City acceptance of the Park in accordance
with Section 5.3(f); and (ii) immediately prior to conveyance to the City. City and PLC
agree that CL&D shall have no responsibility to either City and/or PLC concerning the
design, construction, installation and/or fitness for use of the improvements to the Park,
and City upon conveyance of the Property releases CL&D from any responsibility
concerning same. The parties hereby acknowledge that the Property is not currently a
legal parcel. Accordingly, any such transfer of the Property or any portion thereof by
PLC to CL&D and/or to one or more of its affiliates shall require compliance with the
California Subdivision Map Act as a condition precedent to any such transfer. Without
limiting City's rights under Sections 5.4 and 5.5, City hereby consents to such transfer
and agrees to process one or more subdivision maps (in accordance with the requirements
of the California Subdivision Map Act, and the applicable ordinances of City regulating
the subdivision of land) in order to facilitate the transfer of the Property from PLC to
CL&D and/or to one or more of its affiliates. In the event that PLC and CL&D agree that
PLC may transfer the Property or legally subdivided portions of the Property to CL&D
and/or to one or more of its affiliates in accordance with this Section 5.6, City hereby
agrees to accept the transfer of the Property in accordance with the provisions of Section
5.4, and Section 5.5 upon the satisfaction of the conditions for the transfer of the Property
in accordance with the terms of said Sections. Notwithstanding the foregoing, nothing in
this Section 5.6 shall limit and/or release CL&D and/or PLC from any of their
obligations, duties and responsibilities under this Agreement, including without limitation
the indemnity obligations.
5.7 Satisfaction of Development Agreement. In the event that the Property is
conveyed to City, whether by way of grant deed and/or by way of easement as provided
in Section 5.4 hereof, and whether such conveyances are made by PLC or by CL&D
and/or one or more of its affiliates, and upon completion and acceptance of the Park
improvements, City hereby agrees that PLC shall be deemed to have satisfied its
obligations under the Development Agreement to improve and dedicate to City a four-
acre public neighborhood park.
6. Indemnification and Insurance.
6.1 CL&D and PLC Indemnity Obligations.
(a) CL&D and PLC shall require any of their vendors, contractors or
subcontractors working on the Property and/or in connection with this Agreement
LA 103482 Q -g-
to name City as an additional insured under any insurance policies in which PLC
and/or CL&D are named as an additional insured(s).
(b) After the Property is conveyed in accordance with Section 5.4 and
subject to Section 7 of this Agreement, CL&D and PLC shall protect, defend,
indemnify and hold harmless City, its officers, elected or appointed officials,
employees, agents and volunteers from and against any and all claims, damages,
losses, expenses,judgments, demands and defense costs (including, without
limitation, costs and fees of litigation (including arbitration) of every nature or
liability of any kind), arising out of, resulting from, or in connection with, directly
or indirectly, the performance of and/or the failure to perform the Agreement by
CL&D, PLC and/or any of their employees, agents, vendors, contractors,
subcontractors and/or representatives.
(c) After the Property is conveyed in accordance with Section 5.4 and
subject to Section 7 of this Agreement, CL&D and PLC shall protect, defend,
indemnify and hold harmless City, its officers, elected or appointed officials,
employees, agents and volunteers from and against any and all claims, damages,
losses, expenses,judgments, demands and defense costs (including, without
limitation, costs and fees of litigation (including arbitration) of every nature or
liability of any kind), arising out of, resulting from, or in connection with, directly
or indirectly, any and all Environmental Contamination and/or Covered
Contamination, including without limitation, all the following:
(i) Any claims by third parties for bodily injury or property
damage caused by Covered Contamination and/or Environmental
Contamination. Third party claims include any claims made by City, its
employees, contractors, subcontractors, agents, vendors and
representatives, provided that City has in place, and City, its employees,
contractors, subcontractors, agents, vendors and representatives have
complied with, an adequate health and safety program: (1) to protect
human health and the environment in connection with City's activities on
the Property; (2) specifically addressing the known conditions on the
Property. Neither PLC or CL&D shall have to defend any workers'
compensation related claims; however, such shall not diminish City's
indemnity rights herein.
(ii) Subject to CL&D's right to cure, any reasonable costs and
related expenses incurred by City as a result of CL&D's failure to perform
any investigation, monitoring, mitigation and/or remediation of Covered
Contamination and/or Environmental Contamination which is ordered by
federal, state or local governmental authorities. If City believes CL&D
has failed to perform any cleanup covered by this indemnity, City shall
give CL&D written notice of such failure in accordance with Section 9.3
and CL&D shall have the right to cure such failure in accordance with
Section 9.3; provided, however, that if CL&D decides to appeal or contest
any investigation, monitoring, mitigation and/or remediation order, then
LA 103482 Q -9-
CL&D may delay the commencement of any cure period until thirty (30)
days after the issuance of a final, non-appealable order or directive to
undertake the investigation, monitoring, mitigation and/or remediation.
(iii) Any failure of the remediation, maintenance and/or
monitoring activities, including without limitation a failure of the barrier,
undertaken or operated by CL&D, its agents, contractors, subcontractors
and/or vendors and any resulting costs and/or damages.
(iv) Costs and/or damages, except as limited by this Agreement,
caused at any time by CL&D, its agents, contractors, subcontractors
and/or vendors as a result of activities associated with Covered
Contamination and/or Environmental Contamination undertaken by
CL&D, its agents, contractors, subcontractors and/or vendors on, under or
around the Property under this Agreement.
(v) Insurance deductibles and/or self-insured retentions.
(vi) Any damages to the remediation system that may result
from the design and/or construction by PLC, its agents, contractors,
subcontractors and/or vendors of the Park, including without limitation,
the irrigation system.
(d) The foregoing indemnity obligations are joint and several
obligations of CL&D and PLC. The obligation to defend City under this Section
6.1 includes payment of City's reasonable attorneys' fees and costs.
(e) CL&D and PLC shall conduct all defenses at their sole cost and
expense. If CL&D and/or PLC assert a reservation of rights, a cross complaint, or
an affirmative defense or take other similar action against City, City shall approve
the selection of counsel chosen by CL&D and/or PLC.
(f) This indemnity shall apply to all claims and liability regardless of
whether any insurance policies are applicable. The policy limits do not act as a
limitation upon the amount of indemnification to be provided by CL&D and PLC.
6.2 City's Indemnity Obligations. After the Property is conveyed to City in
accordance with Section 5.4, City shall protect, defend, indemnify and hold harmless
CL&D and PLC from and against all claims, damages, losses, expenses,judgments,
demands and defense costs (including, without limitation, costs and fees of litigation
(including arbitration) of every nature or liability of any kind) arising out of, resulting
from, or in connection with, directly or indirectly, the Property. This indemnification and
defense obligation of City excludes such claims, costs, expenses, losses or liabilities (i)
that result from any negligence, willful misconduct or breach of this Agreement by
CL&D, PLC or any of their agents, vendors, contractors and/or subcontractors, and/or(ii)
that are covered by CL&D's and PLC's indemnification, defense and hold harmless
obligations set forth in this Agreement.
l"
LA 103482 Q -10-
6.3 Indemnification Procedures. In the event of the occurrence of any event
which either party asserts is an indemnifiable event under this Agreement, the party
claiming indemnification shall promptly notify in writing the indemnifying party. If such
event involves the claim of any third party, the indemnifying party shall assume all
expenses with respect to the defense or settlement of such claim; however,
(a) the indemnified party shall be entitled to participate in (but not
control) the defense of such claim and to employ counsel at its own expense to
assist in the handling of such claim (this provision shall not derogate City's rights
under Section 6.1(e);
(b) the indemnified party shall obtain the prior written approval of the
indemnifying party before entering into any settlement of such claim;
(c) the indemnifying party shall not permit any lien, encumbrance or
other adverse charge caused by its indemnity obligations to exist upon any asset
of the indemnified party or its subsidiaries. If the indemnifying party does not
assume sole control over the defense or settlement of such claim within forty-five
(45) days after receipt of notice as provided in this Section 6.3, the indemnified
party shall have the right to defend and settle the claim in such manner as it may
deem appropriate at the cost and expense of the indemnifying party, and the
indemnifying party shall promptly reimburse the indemnified party therefor. The
indemnifying party may subsequently assume the defense of such matters
consistent with the terms of this Agreement; and
(d) the parties to this Agreement shall not object to the tender by the
indemnifying party of a claim to the insurer under the Environmental Insurance
Policy.
6.4 CL&D's and PLC's Insurance Obli ations.
(a) CL&D and PLC each acknowledges awareness of Section 3700 et
seq. of the California Labor Code, which requires every employer to be insured
against liability for workers' compensation. CL&D and PLC each covenants that
it shall comply with such provisions prior to conveyance of the Property to City.
CL&D and PLC each, and for as long as or during any time that each or any of
their agents shall be undertaking work on the Property, shall obtain and furnish to
City workers' compensation and employers' liability insurance in amounts not less
than the State statutory limits. CL&D and PLC each shall require all its vendors
and contractors, including all subcontractors of these vendors and contractors, to
provide such workers' compensation and employers' liability insurance for all the
vendors', contractors' and subcontractors' employees. CL&D and PLC each shall
furnish to City a certificate of waiver of subrogation under the terms of the
workers' compensation and employers' liability insurance and CL&D and PLC
each shall similarly require all its vendors, contractors and subcontractors to
waive subrogation.
LA 103482 v2 -1 1-
(b) In addition to the environmental insurance, workers' compensation
and employers' liability insurance and CL&D's and PLC's covenant to defend,
hold harmless and indemnify City, CL&D and PLC each, and for as long as and
during any time each or any of their agents shall be undertaking work on the
Property, shall obtain and furnish to City, a policy of general public liability
insurance, including motor vehicle coverage, against any and all claims arising
out of or in connection with the Property. This policy shall indemnify CL&D
and/or PLC, respectively, and each of its officers, employees and agents, while
acting within the scope of their duties, against any and all claims arising out of or
in connection with the Property, 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 One Million Dollars ($1,000,000.00)per occurrence. If coverage is provided
under a form which includes a designated general aggregate limit, the aggregate
limit must be no less than One Million Dollars ($1,000,000.00) for the Property.
The policy shall name City, its officers, elected or appointed officials, employees,
agents, and volunteers as Additional Insureds, and shall specifically provide that
any other insurance coverage which may be applicable to the Property shall be
deemed excess coverage and that CL&D's and PLC's insurance shall be primary.
PLC shall be allowed a self-insured retention or deductible in the amount of One
Hundred Thousand Dollars ($100,000.00) for the insurance coverage identified in
this Section 6.4(b).
(c) Prior to commencement of this Agreement, CL&D and PLC each
shall furnish to City certificates of insurance subject to approval of the City
Attorney evidencing the foregoing insurance coverages as required by this
Agreement; these certificates shall:
(i) provide the name and policy number of each carrier and
policy;
(ii) shall state that the policy is currently in force; and shall
promise to provide that such policies shall not be canceled or modified
without thirty (30) days'prior written notice to City.
(d) CL&D shall acquire and CL&D shall include City, PLC and PLC's
affiliates as named insureds under an Environmental Insurance Policy and that:
(i) is issued by an insurance company mutually acceptable to
the parties;
(ii) is in a form agreed to in writing by City, PLC and CL&D;
(iii) provides coverage for off-site and on-site cleanup of both
pre-existing unknown and new pollution conditions, and third party
liability;
LA 103482 a2 -12-
(iv) provides coverage for CL&D's and PLC's environmental
obligations, duties and responsibilities under this Agreement;
(v) provides coverage for remediation costs, third party bodily
injury and third party property damages that result from any failure of the
remediation and/or monitoring activities installed by or operated by
CL&D, its agents, contractors, subcontractors and/or vendors, including
without limitation, a failure of the barrier and any resulting remediation
costs, third party bodily injury and third party property damages. The
Environmental Insurance Policy will not cover improvements owned by
City on the Property.
(vi) provides coverage for any damages to the remediation
system that may result from a pollution incident;
(vii) provides coverage for any claims, damages or injury
resulting from or associated with Covered Contamination and/or
Environmental Contamination, including without limitation, a pollution
incident caused by negligent maintenance of the Property and/or the
barrier by anyone;
(viii) provides for policy limits of Ten Million Dollars
($10,000,000.00) per incident and Ten Million Dollars ($10,000,000.00)
in the aggregate;
(ix) is for a term of ten (10) years from the date of conveyance
of the Property to City with CL&D paying the full premium for the term
of the insurance for all coverages in advance. CL&D shall meet with City
ninety (90) days before the end of the term of the Environmental Insurance
Policy to discuss renewal options and alternatives. If City is able to obtain
a renewal of the Environmental Insurance Policy and elects to do so or if
City obtains environmental insurance from the same or from a different
carrier for the same or different term and the same or different coverages
and conditions and elects to do so, CL&D shall pay the premium for such
insurance up to Two Hundred Fifty Thousand Dollars ($250,000.00);
(x) provides for deductibles or self-insured retentions of no
more than One Hundred Thousand Dollars ($100,000.00) per incident; and
(xi) promises that such policies shall not be cancelled due to a
failure to pay the premium or modified or cancelled for any other reasons
without thirty (30) days prior written notice to City.
(e) CL&D shall be allowed to meet its insurance obligations, except
for the Environmental Insurance Policy, through the self insurance program that
CL&D participates in.
LA 103482 Q -13-
(f) The requirement for carrying the foregoing insurance coverages
shall not derogate from CL&D's and PLC's defense, hold harmless and
indemnification obligations as set forth in this Agreement. City or its
representatives shall at all times have the right to demand the original or a copy of
any or all the policies of insurance. CL&D and PLC each shall pay, in a prompt
and timely manner, the premiums on all insurance hereinabove required.
7. Limitation of Liability.
7.1 Increased Costs of Remediation. A party in default of this Agreement
shall be responsible for any and all increased costs of remediation, whether direct or
indirect, related to any default of this Agreement and hereby releases, defends and
indemnifies the non-defaulting party(ies) for all liability related to such default.
7.2 Release of Statutory Claims. Except for.any claim which City might have
under this Agreement, City on behalf of its successors and assigns, hereby waives and
releases CL&D and PLC from any and all common law or statutory-based claims and
causes of action which City might have now or in the future related to Covered
Contamination and/or Environmental Contamination connected with the Property,
including, but not limited to, actions under the Comprehensive Environmental Response,
Compensation and Liability Act (42 U.S.C. § 9601 et seq.), the Resource Conservation
and Recovery Act of 1976 (42 U.S.C. § 6901 et seq.) and any analogous state or local
statutes and the regulations promulgated pursuant thereto. City's rights and remedies
against CL&D and PLC and their affiliates with respect to Environmental Contamination
and Covered Contamination are solely limited to those set forth in this Agreement.
7.3 Other Liability Exclusions. CL&D and PLC shall not be responsible for
and CL&D's and PLC's indemnity obligations under Section 6.1 shall not apply to: loss
of business by City, diminution in the value of the Property, or loss of goodwill by City.
8. Environmental Reviews and Disclosures.
8.1 Environmental Reviews. City has the right to enter the Property to
conduct such visual, surface and subsurface investigations as City, in its sole discretion,
deems desirable and necessary to determine the environmental condition of the Property.
CL&D has undertaken or caused to be prepared at its sole cost and expense, the
Environmental Reports listed in Exhibit "B" and Exhibit "C" hereto. City
acknowledges that it has received copies of and has reviewed such reports. Other
environmental assessments, reviews and studies may have been performed concerning
the Property and may be available from governmental agencies or are available in the
public domain.
8.2 Disclosures. City understands and acknowledges that:
(a) The Property has been used for many years as an oil production
field and refinery;
LA 103482 Q -14-
(b) As a result of such use, leakage or seepage of oil, gasoline,
gasoline additives and diesel products occurred on the Property;
(c) The groundwater underlying the Property may have been impacted
by gasoline range petroleum hydrocarbons, which originated from the prior uses
of the Property;
(d) CL&D does not have the requisite information to fully determine
the exact effect of prior uses on, or the present condition of, the Property;
(e) The Property may contain buried pipelines and other petroleum
product distribution facilities and equipment, the locations of which have not been
determined;
(f) CL&D presently maintains monitoring wells on the Property and
operates a thermal oxidizer vapor extraction system, which is designed to extract
soil vapors from the Property;
(g) Environmental Contamination and Covered Contamination at the
Property may present problems in performing construction or excavation work on
the Property and require PLC to take special precautions in order to follow good
safety practices and comply with applicable federal, state and local laws and
regulations;
(h) Except as documented in the Environmental Reports, CL&D does
not know the exact nature of the environmental condition of the Property or the
exact extent or locations of Environmental Contamination or Covered
Contamination; and
(i) Nothing in these disclosures in any way limits CL&D's and/or
PLC's obligations, duties and responsibilities under this Agreement.
9. General.
9.1 Assurances. City, PLC and CL&D shall execute such further documents
and instruments, requested by another party, as may be necessary or reasonably desirable
to consummate the transactions contemplated by this Agreement or any part thereof.
9.2 Attorney Costs. If a legal action or proceeding that arises out of or relates
to this Agreement is brought by either party, the prevailing party shall be entitled to
receive from the other party, in addition to any relief that may be granted, reasonable
attorneys' fees, costs and expenses that are incurred in the action or proceeding by the
prevailing party.
9.3 Default. Should any party to this Agreement fail to perform a material
obligation of this Agreement, a non-breaching party may notify the breaching party in
writing in accordance with Section 9.4. Within thirty (30) days of receipt of such notice,
the breaching party shall commence curing such breach and shall diligently pursue such
LA 103482Q -15-
cure to completion. If the breaching party does not commence a cure within thirty(30)
days or does not diligently pursue such cure to completion, the breaching party shall be in
default under this Agreement and the non-defaulting parties shall be entitled to pursue,
without limit, all remedies available in law and in equity. The remedies given to the non-
defaulting parties in this Agreement shall not be exclusive, but shall be cumulative and in
addition to all remedies now or hereinafter allowed by law.
9.4 Notices. All notices required or permitted to be given hereunder shall be
in writing and delivered by facsimile, hand or overnight courier, or mailed in the United
States Mail postage prepaid by certified or registered mail, return receipt requested, to the
appropriate address (or, if applicable, facsimile number) indicated below or at such other
place or places as either CL&D, PLC or City may, from time to time, respectively,
designate in a written notice given to the others. Notices which are delivered by
facsimile or hand or overnight courier shall be deemed received upon delivery or
transmission, as the case may be. Notices which are deposited in the United States Mail
in accordance with the terms of this Section shall be deemed received three (3) days after
the date of mailing thereof. Notwithstanding the foregoing, a copy of any notice sent by
facsimile hereunder also shall be delivered to the addressee by hand or overnight courier
or shall be mailed in the United States Mail.
To City: City of Huntington Beach
2000 Main Street
Huntington Beach, CA 92648
Attention: City Administrator
Fax: (714) 536-5233
With a copy to: City of Huntington Beach
2000 Main Street
Huntington Beach, CA 92648
Attention: City Attorney
Fax: (714) 374-1590
To CL&D: Chevron Land and Development Company
3100 South Harbor Blvd., Suite 340
Santa Ana, CA 92704
Attention: Mr. Don Means
Fax: (714) 427-1223
To PLC: PLC
19 Corporate Plaza Drive
Newport Beach, CA 92660
Attention: Mr. William D. Holman
Fax: (949) 729-1214
9.5 Attachments Incorporated. All Exhibits hereto are deemed a part of this
Agreement and are incorporated herein and made a part hereof.
LA 103482 Q -16-
9.6 Entire Agreement. This Agreement, including Exhibits and other writings
referred to herein, constitutes the entire agreement between City, PLC and CL&D with
respect to the subject matter hereof, and supersedes all prior oral or written agreements,
commitments or understandings with respect thereto. No amendment or waiver of the
terms of this Agreement shall be binding on the parties unless in writing and signed by
authorized representatives of the parties hereto. Any waiver or any breach of any term or
condition of this Agreement shall not operate as a waiver of any other breach of such
term or condition or of any other term or condition of this Agreement. The headings used
in this Agreement are for convenience of reference only and shall not be used to define
the meaning of any provision.
9.7 Parties in Interest. Except as conferred herein, nothing in this Agreement,
whether express or implied, is intended to confer any rights or remedies under or by
reason of this Agreement on any persons other than the parties to it and their respective
successors and assigns, nor is anything in this Agreement intended to relieve or discharge
the obligation or liability of any third person to any party to this Agreement, nor shall any
provision give any third person any right of subrogation or action over and against any
party to this Agreement.
9.8 Severability. If any provision of this Agreement shall be held to be invalid
or unenforceable under present or future law in whole or in part by any court of any
jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of
such invalidity or unenforceability without invalidating the remaining provisions of this
Agreement or affecting the validity or enforceability of such provisions in any other
jurisdiction. Such invalid or unenforceable provision shall be replaced as to such
jurisdiction by a provision that comes closest to the business objective intended by such
invalid or unenforceable provision without being invalid or unenforceable itself.
9.9 Counterparts. This Agreement may be executed in three or more
counterparts and by different parties on separate counterparts, all of which shall be
considered one and the same agreement, and each of which shall be deemed an original.
9.10 Consents. When consent or acceptance is required of any party hereto,
such consent or acceptance shall not be unreasonably withheld, conditioned or delayed
and must be given in writing to be enforceable. Further, when City's consent/approval is
required under this Agreement, its consent/approval for one transaction or event shall not
be deemed to be a consent/approval to any other subsequent occurrence of the same or
any other transaction or event.
9.11 Survival. Terms and conditions of this Agreement, which by their sense
and context survive the expiration or termination of this Agreement, shall so survive, and
further, shall survive any conveyance of the Property to City and are not merged with any
grant deed that may be used for said conveyance.
9.12 Assignment. None of the parties to this Agreement shall assign this
Agreement or any of its rights, obligations or duties under this Agreement without the
LA 103482 Q -17-
express, written consent of all other parties. Any attempted assignment that is in conflict
with this Section 9.11 shall be void and have no effect.
9.13 Time. Time is of the essence of this Agreement and every provision
herein contained.
9.14 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California. Venue for any disputes shall be
Orange County, California.
9.15 Effectiveness and Termination. This Agreement shall become effective on
the Effective-Date. However, if, all the events described in Section 5.3 have not occurred
within two (2) years of the Effective Date,this Agreement shall terminate and be of no
force and effect unless an extension of the date of termination has been agreed to in
writing by all parties.
IN WITNESS WHEREOF,the parties hereto have executed this Agreement effective as
of the Effective Date.
CHEVRON LAND AND DEVELOPMENT
COMPANY, a Delaware corporation
By: J
Print Name: 6c>n A&24L
Its: (circle one) Chairman/Presiden ice
Presiders
By:
Print e ofese
Its: ( ircl o Financial_
Off' ssis nt Secretary- re urer
LA 103482 v2 -18-
PLC, a California general partnership
By: PLC Holdings,
a California general partnership
Its: General Partner
By: PACLACO, Inc.,
a California corporation
Its: General Partner I,�
By: h -
Name: 6RV4�TaP
Title: �Y
r
By:
Name:PA+J 0'W JOt3
Title: V((F`k it VFnrT-
By: T/L Huntington Beach, LLC,
a Delaware limited liability company
Its: General Partner
By: Lennar Land Partners II,
a Florida general partnership
Its: Managing Member
By: Lennar Homes of California, Inc.,
a California corporation
Its: Attorney-i - t
B
Name:
Title: \;kLf,FYt'f,, tiFli��
By: �6
Name:
Title:
LA 103482 Q -19-
CITY OF HUNTINGTON BEACH, a municipal
corporation of the State of California
By: �IaL
Mayor V"o
ATTEST:
r
City Clerk
l�
J'Y
J/
APPROVED AS TO FORM: REVIEWED"AND APPROVED:
ttorne /4/p oL City A 'nistrator
/
Uo-2 3-0 2�
APPROVED AS TO FORM:
T �
S al Counsel,Burke,Wdams&SVmsenI.LP
INITIATED AND APPROVED:
Fire Chief/InfoSystems Director
INITIATED AND APPROVED:
Aanningirector
INITIATED AND APPROVED:
CD,r�' 9 f:44 /0- 2 •O
C unity Services Wrector
LA 103482 v2 -20-
EXH I B IT A (Al to A-3
EXHIBIT "A-1"
LEGAL DESCRIPTION FOR
PROMENADE NEIGHBORHOOD PARK SITE
ENTIRE SITE
BEING LOT 2 OF TRACT NO. 15531, IN THE CITY OF HUNTINGTON BEACH, COUNTY
OF ORANGE, STATE OF CALIFORNIA AS SHOWN ON THE MAP FILED IN BOOK 711,
PAGES 26 TO 32 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY AND A
PORTION OF PARCEL "I" AS DESCRIBED ON EXHIBIT I AND SHOWN IN EXHIBIT I-1
ATTACHED TO THAT CERTAIN CONDITIONAL CERTIFICATE OF COMPLIANCE NO. 96-
4, IN. THE CITY OF HUNTINGTON BEACH, COUNTY OF ORANGE, STATE OF
CALIFORNIA, AS SHOWN ON THE DOCUMENT RECORDED FEBRUARY 28, 1996 AS
INSTRUMENT NO. 19960095325 IN THE.OFFICE OF THE COUNTY RECORDER, MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHERLY CORNER OF SAID LOT 2, SAID POINT BEING ON THE
NORTHWESTERLY LINE OF SEAGATE DRIVE (58 FEET WIDE); THENCE
SOUTHWESTERLY ALONG SAID LINE THE FOLLOWING•COURSES; SOUTH 41005'09"
WEST 96.31 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE
NORTHWESTERLY HAVING A RADIUS OF 651.00 FEET; THENCE SOUTHWESTERLY
226.27 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 1905451';
THENCE SOUTH 61000'00" WEST 51.24 FEET; THENCE LEAVING THE
NORTHWESTERLY LINE OF SEAGATE DRIVE NORTH 30043'04" WEST 304.87 FEET;
THENCE NORTH 41005'09" EAST 494.00 FEET TO THE SOUTHERLY LINE OF
PROMENADE PARKWAY(58 FEET WIDE);THENCE SOUTH 48054"51"EAST 317.00 FEET
ALONG SAID SOUTHERLY LINE TO THE BEGINNING OF A TANGENT CURVE
CONCAVE WESTERLY HAVING A RADIUS OF 29.00 FEET; THENCE SOUTHERLY 45.55
FEET ALONG SAID CURVE THROUGH .A CENTRAL ANGLE OF 90000'00" TO THE
NORTHWESTERLY LINE OF SAID SEAGATE DRIVE; THENCE SOUTH 41°05'09" WEST
164.98 FEET ALONG SAID NORTHWESTERLY LINE TO THE POINT OF BEGINNING.
AS SHOWN ON EXHIBIT`B"ATTACHED HERETO AND MADE A PART THEREOF.
CONTAINS: 174,725 SQ.FT.=4.011 ACRES
J
a Na•334T
Exp 6-30-0,ff'
s
OF CpLIF�
wLDEN & LEGAL DESCRIPTION C
SSOCIATES
A
S FOR PROMENADE NEIGHBORHOOD PARK SITE
C1 ENTIRE SITE
vIL ENGmwm-LmD suRmoRS-PLANNERs W.O.No. 1295-396-001 Date 08/26/02
2552 WIM ROAD,SUrM B•IRVINE,CA 926144236
MAGI 66n.nr 10 FAX:6604418 Enpr.B.J.W. Chk. J.W. Sheet 1 of 1
EXHIBIT "B"
PROMENADE PARKWAY o
a
5 485451' E 317.00' N
26.00'
LOT 2, TRACT N0,
MJ�1. 71L26-32, 15331 v Q SGALE: 1'=80'
H
13
( '' 1
w •\ O�D Ilk co
fig• 29' l2q,
�-
. Q Q�Qk ,A,5tih• S\��AANLA
N�sG\F` H No. 3347
V. 6-30-M
. o-
n
- 4
C LINE TABLE
h ' LINE LENGTH BEARING .
LI q6.31' 5 41i05tYr W
L2 5124' 5 G11DO'00' W
13 31.07 5 4105b9' W
N
�N ME TABLE
CURVE LENGTH RADIUS DELTA
~ N 3043�¢. v G1 4555' 29.00' 90'00100'
G2 4555' 29.00' 9000700'
03 22.73' 44.00' 2935!31'
04 1 G3.74' 48.00' 7G*04'43'
G5 60.04' 74.00' 4G'2972'
ASDEN & EXHIBIT "B"
SOCIATES SKETCH TO ACCOMPANY LEGAL DE5GRIP4ON
FOR PROMENADE NEIGHBORHOOD PARK SITE
CPAL ENGwEERs-LAND SURVEYORS-PLANNERS ENTIRE 51TE
-VW%rM A f'. 1295-396-001 nntP 08/2G/02
EXHIBIT "A-2"
LEGAL DESCRIPTION FOR
PROMENADE NEIGHBORHOOD PARK SITE
DEDICATION PARCELS 1 &2
BEING LOT 2 OF TRACT NO. 15531, IN THE CITY OF HUNTINGTON BEACH, COUNTY
OF ORANGE, STATE OF.CALIFORNIA AS SHOWN ON THE MAP FILED IN BOOK 711,
PAGES 26 TO 32 OF MISCELLANEOUS MAPS,RECORDS OF ORANGE COUNTY AND A
PORTION OF•PARCEL "I" AS DESCRIBED ON EXHIBIT I AND SHOWN IN EXIMIT I=1
ATTACHED TO THAT CERTAIN CONDITIONAL CERTIFICATE OF COMPLIANCE NO. 96-
4, IN THE CITY OF HUNTINGTON BEACH, COUNTY OF ORANGE, STATE OF
CALIFORNIA, AS SHOWN ON THE DOCUMENT RECORDED FEBRUARY 28, 1996 AS
INSTRUMENT NO. 19960095325 IN THE OFFICE OF THE COUNTY RECORDER, MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
PARCEL I:
BEGINNING AT THE SOUTHERLY CORNER OF SAID LOT 2, SAID POINT BEING ON THE
NORTHWESTERLY LINE OF SEAGATE DRIVE (58 FEET WIDE) AND THE BEGINNING
OF A TANGENT CURVE CONCAVE WESTERLY HAVING A RADIUS OF 74.00 FEET;
THENCE NORTHERLY 14.44 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE
OF 11°10'37"; THENCE NORTH 00°14'20"EAST 116.13 FEET; THENCE.NORTH 45°10'34"
WEST, 88.44 FEET; THENCE NORTH 76018'S4" WEST 203.18 FEET; THENCE NORTH .
41°05'09"EAST 179.52 FEET TO THE SOUTHERLY LINE.OF PROMENADE PARKWAY (58
FEET WIDE); THENCE SOUTH 48°54'51"EAST 317.00 FEET ALONG SAID SOUTHERLY
LINE TO THE BEGINNING OF A TANGENT CURVE CONCAVE WESTERLY HAVING A
RADIUS OF 29.00 FEET; THENCE SOUTHERLY 45.55 FEET ALONG SAID CURVE
THROUGH A CENTRAL ANGLE OF 90000'00"TO THE NORTHWESTERLY LINE OF SAID
SEAGATE DRIVE; THENCE SOUTH 41905'09" WEST 164.98 FEET ALONG SAID
NORTHWESTERLY LINE TO THE•POINT OF BEGINNING.
AS SHOWN ON EXHIBIT`B"ATTACHED HERETO AND MADE A PART THEREOF.
CONTAINS: 42,182 SQ.FT. OR 0.968 ACRES. c �s�P
t4o.334T
* Fxp.6 3
Q
��91F 4f C
VWOCIATES
EN & LEGAL DESCRIPTION
FOR PROMENADE NEIGHBORHOOD PARK SITE
CIVIL ENGINEERS-LAND SURVEYORS-PLANNERS
DEDICATION PARCELS 1 &2
----_-— -•., V.**-T-a n.",l,,,M o•,r f A X')14 W.O.No. 1295-396-001 Date 08/26/02
PARCEL 2
COMMENCING AT THE SOUTHERLY CORNER OF SAID LOT 2, SAID POINT BEING ON
THE NORTHWESTERLY LINE OF SEAGATE DRIVE (58 FEET WIDE); THENCE
SOUTHWESTERLY ALONG SAID LINE THE FOLLOWING COURSES; SOUTH 41005'09"
WEST 96.31 FEET TO THE BEGINNING OF A TANGENT. CURVE, CONCAVE
NORTHWESTERLY HAVING A RADIUS OF 651.00 FEET; THENCE SOUTHWESTERLY
117.38 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 10°1951" TO SHE
TRUE POINT OF BEGINNING; THENCE CONTINUING SOUTHWESTERLY 108.89 FEET
ALONG SAID CURVE THROUGH A CENTRAL ANGLE -OF 9035'00'; THENCE SOUTH
61000"00" WEST 51.24 FEET; THENCE LEAVING THE NORTHWESTERLY LINE OF SAID
SEAGATE DRIVE NORTH 30043'04"WEST 304.87 FEET;THENCE NORTH 41005'09"EAST
160.55 FEET; THENCE SOUTH 00°11'01" EAST 186.58 FEET; THENCE SOUTH 58058,07"
EAST 215.69 FEET TO THE TRUE POINT OF BEGINNING, A RADIAL LINE TO SAID
POINT BEARS SOUTH 38°35'00"EAST.
AS SHOWN ON EXHIBIT`B"ATTACHED HERETO AND MADE A PART THEREOF,
CONTAINS: 34,478 SQ.FT.=0.792 ACRES
,5� �ANEE `SG
a
�0:-3R7
Exp. 6-30-04
rlq��
o . C A�
vvcss
EN & LEGAL DESCRIPTION
OCIATES FOR PROMENADE NEIGHBORHOOD PARK SITE
CWIL ENGINEERS-LAND SURVEYORS-PLANNERS DEDICATION PARCELS 1 &2
--- ---— -. . .. . w n m. »gs_�4�_nni nnfp nsZOAln)
fEMIT 15!
PROMEMADE PARKWAY o
5 48 54'51' E 317.00'
� A
PARCEL 1 LOT 2, TRAGT NO. 15331�,,_ -44
0.9G8 ACRES M.M. 711/26-32. OC SG'ALE. 1w=80'
457034• E 4
88.44' s 1
, � Q
5 o' I POINT OF
�Coy� r \ BEGINNING
0 5 '��� �' PARCEL 1
6p'05'�8 POINT OF
tL4COMMENCEMENT
5 J_ 29' 29' PARCEL 2
O ���•�OF, LA
h NO
z QQ. e��P h�ti
p��0�VDApO
�.�� p . tip`
Q ,4P'�gyp. � . No. W47
y \� �qr Exp. 6-30-04
41��
a TRUE POINT
OF.BEGINNING
PARCEL 2
N 55*551070
W 215 6q h
n
4 LINE TABLE
^ LINE LENGTH BEARING
PARCEL 2 " Ll JG,31' 5 41'05ver w
0.7% ACRES ryti 12 1 5124' 5 G1*00170' w
,i
30¢3�4. GLRVE TABLE
ip CURVE LENGTH RADIUS DATA
3O¢�) GI 4555' 29.00' 90bOb0'
G2 117Z8' 651DO, 10Y951'
G3 108,89' 651A0' 9Z55ro-
G4 14.44' 74DO' 111037'
kSDEN & EXHIBIT "B"SOCIATES SKETCH TO ACCOMPANY LEGAL DE50RIPTIO
FOR PROMENADE NEIGHBORHOOD PARK SITI
rl
DEDICATION PARCELS 1 AND 2
CIVIL ENGINEERS-LAND SURVEYORS-PLANNERS
�«q RnTrT-0"^A'n 4Mrr-R R•TRVTMR.(`A 9261"236 w n Nn 1295-396-001 Date 08/26/02
EXHIBIT "A-V
LEGAL DESCRIPTION FOR
PROMENADE NEIGHBORHOOD PARK SITE
EASEMENT AREA
BEING A PORTION OF PARCEL "I" AS DESCRIBED ON EXHIBIT I AND SHOWN IN
EXHIBIT I-1 ATTACHED TO THAT CERTAIN CONDITIONAL CERTIFICATE OF
COMPLIANCE NO. 96-4, IN THE CITY OF HUNTINGTON BEACH, COUNTY OF ORANGE,
STATE OF CALIFORNIA, AS SHOWN ON THE DOCUMENT RECORDED FEBRUARY 28,
1996 AS INSTRUMENT NO. 19960095325 IN THE OFFICE OF THE COUNTY RECORDER,
MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHERLY CORNER OF LOT 2 OF TRACT NO. 15531, AS SHOWN
ON THE MAP FILED IN BOOK 711, PAGES 26 TO 32 OF. MISCELLANEOUS MAPS,
RECORDS OF ORANGE COUNTY, SAID POINT BEING ON THE NORTHWESTERLY LINE
OF SEAGATE DRIVE (58 FEET WIDE); THENCE SOUTHWESTERLY ALONG SAID LINE
THE FOLLOWING COURSES; SOUTH 41°05'09" WEST 96.31 FEET TO THE BEGINNING
OF A TANGENT CURVE, CONCAVE NORTHWESTERLY HAVING A RADIUS OF 65 1.00
FEET; THENCE SOUTHWESTERLY 117.38 FEET ALONG SAID CURVE THROUGH.A
CENTRAL ANGLE OF .10°19'51", A RADIAL LINE TO SAID POINT BEARS SOUTH
38035'00" EAST; THENCE LEAVING THE NORTHWESTERLY LINE OF SEAGATE DRIVE
NORTH 58058'07" WEST 215.69 .FEET; THENCE NORTH 00*11'01" WEST 186.58 FEET;
THENCE NORTH 41005'09" EAST 124.93 FEET; THENCE SOUTH 76018154" EAST 203.18
FEET; THENCE SOUTH 45°10'34"EAST-88.44;THENCE SOUTH 00°14'20"WEST 116.13 TO
A NON-TANGENT CURVE CONCAVE NORTHWESTERLY HAVING A RADIUS OF 74.00
FEET, A RADIAL LINE .TO SAID POINT BEARS SOUTH 60005'28" EAST; THENCE
SOUTHWESTERLY 14.44 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF
11°10'3 7"TO THE POINT OF BEGINNING.
AS SHOWN ON EXHIBIT"B"ATTACHED HERETO AND MADE A PART THEREOF.
CONTAINS: 98,065 SQ.FT.=2.251 ACRES.
k�L LA
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No. 3347
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C
ALDEN & „�/
SSOCIATES LEGAL DESCRIPTION 6
qww FOR PROMENADE NEIGHBORHOOD PARK SITE
EASEMENT AREA
CIVIL ENGINEERS-LAND SURVEYORS-PLANNERS ... ., ,r_ ,nnc )n.< nni
MMIT IT
PROMENADE PARKWAY N
5 48 54 51` E 317.00'
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LINE TABLE
LINE LENGTH BEARING
V N LI gG,31' IS 4lV5n4' W
tiL2 5124' 5 GPOODT W
N 30¢3b4• �, MVE TABLE
v C JRVE LENGTH RADIUS DELTA
01 4555' 2gDO' gODO'00'
62 117ZBO 651DO' 107951'
63 108.8q' G51D0' cmrw'
C4 14.44' I 74DO' 11W37-
Wss
EN & EXHIBIT BOCIATES 5KETGH TO ACCOMPANY LEGAL DE5GRIP ION
FOR PROMENADE NEIGHBORHOOD PARK 51TE
CIVIL ENGWEERS-LAND SURVEYORS-PLANNERS
EA5EMENT AREA
__ _ ... - .. ��a�_zcv__nn� n_a_ nR/9G/09
EXHIBIT B
EXHIBIT B
REMEDIAL ACTION PLAN REPORTS
Sound Epic. June 1996. Holly Property Soil Removal Action Project,
Huntington Beach, California, Final Report.
IT Corporation.August 1996. Soil Vapor Extraction Pilot Test Report, Holly
Seacl ff Project, 7201 Garfield Avenue, Huntington Beach, California.
Radian Corporation. December 1997. Results of Petroleum Hydrocarbon
Surface Emission Flux Sampling at the Chevron Holly-Seacliff Property.
Chem Risk. July 9, 1998.Risk Evaluation of Cove and Holmby Park.
Remediation and Closure Strategy.
IT Corporation. November 2000. Soil Sampling Report— The Park Area,
Holly Seacl ff Site, Chevron Environmental Management Co..
IT Corporation. March 2002. Shut-down Test Report— The Promenade
Neighborhood Park, A.K.A. Holmby Park, Holly Seacliif Project.
Shaw Environmental, Inc.. May 2002. PB16 Vapor Sampling Test Report—
Chevron Holly Seacl ff Project.
Shaw Environmental, Inc.. June 2002. Post-hole Emission Testing Report—
Chevron Holly Seacl ff Project.
Shaw Environmental, Inc.. October 2002. Construction Drawings for
Promenade Park Cap, A.K.A. Holmby Park,Holly Seacliff Project.
LA#102854 vl B-1
EXHIBIT C
EXHIBIT C
ENVIRONMENTAL REPORTS
Chevron Holly Seacliff Site
Environmental Reports —Park Area
Blasland, Bouck&Lee, Inc.. January 1994. Phase II Shallow Soils
Investigation—Holmby Place, the Cove, and Portside Residential
Development Areas, Huntington Beach, California.
Blasland, Bouck&Lee, Inc.. January 1996. Lead and Barium Impacted Soil
Removal from Promenade Parkway Road Cut, Holmby Place Residential
Development, Huntington Beach, California.
Blasland, Bouck&Lee, Inc.. June 1996.Parksite Area Soil Investigation—
Holmby Place Residential Development, Huntington Beach, California.
Blasland, Bouck&Lee, Inc.. May 1995.Remediation ofMercaptan and
Thiophene Containing Soil at Pacific Coast Homes, Huntington Beach,
California.
Chem Risk. April 1994.Analytical Results for Soil Sampling to Evaluate
Odors at the Pacific Coast Homes Development Site in Huntington Beach,
California.
Chem Risk. July 9, 1998. Risk Evaluation of Cove and Holmby Park:
Remediation and Closure Strategy.
Fluor Daniel, GTI, Inc. August 1997.Holly SeacliProject-Site Assessment
Report, 7301 Garfield Avenue, Huntington Beach, California.
IT Corporation. April 1999, Summary Report: Chevron Land and
.Development Co., Holly SeacliSite,Park Area.
IT Corporation. August 1996. Soil Vapor Extraction Pilot Test Report, Holly
SeacliProject, 7201 Garfield Avenue, Huntington Beach, California.
IT Corporation. July 1999.Performance Criteria for Closure of Holmby Park
Area of the Holly Seacliff Site, Chevron Land and Development Co..
IT Corporation. March 2002. Shutdown Test Report— The Promenade
Neighborhood Park, A.KA. Holmby Park, Holly Seacl ff Project.
IT Corporation. November 2000. Soil Sampling Report— The Park Area,
Holly Seaclii f Site, Chevron Environmental Management Co..
Pacific Coast Homes. August 1991.Phase III Site Assessment(Contaminant
Delineation)—Holly Property.
Pacific Coast Homes. July 1990. Phase II Site Assessment—Holly Property.
Pacific Coast Homes. September 1989. Phase I Site Assessment—Holly
SeacliffProperty.
LA#102855 v1 C_1
Pacific Coast Homes. September 1992.Holly Remediation Report, Lead and
Arsenic Contaminated Soil Excavation and Removal.
Radian Corporation. December 1997.Results of Petroleum Hydrocarbon
Surface Emission Flux Sampling at the Chevron Holly-Seacl ff Property.
Radian Corporation. November 1994. Health Based Cleanup and Exposure
Levels for Soil, Holly Site, Huntington Beach, California.
Radian Corporation. November 1994.Health Based Cleanup and Exposure
. Levels for Air, Holly Site, Huntington Beach, California.
Shaw Environmental, Inc.. June 2002.Post-hole Emission Testing Report—
Chevron Holly Seacl ff Project.
Shaw Environmental, Inc.. May 2002.PB16 Vapor Sampling Test Report—
Chevron Holly Seacliff Project.
Smith Environmental Technologies Corporation. June 1995. Vapor Extraction
Test—Holly Property, Gothard Grading Field, Huntington Beach,
California.
Sound Epic. June 1996.Holly Property Soil Removal Action Project,
Huntington Beach, California, Final Report.
LA#102855 vl C-2
EXHIBIT D
EXHIBIT D
GRANT DEED
LA#102859 0 D-1
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City Clerk
CITY OF HUNTINGTON BEACH
2000 Main Street
Huntington Beach, CA 92648
Exempt Recording Per Government
Code Sections 6103 and 27383
Space Above This Line For Recorder's Use
GRANT DEED
A.P. NO.:
THE UNDERSIGNED GRANTOR DECLARES THAT THE CITY OF HUNTINGTON BEACH IS ACQUIRING TITLE
AND IS EXEMPT FROM DOCUMENTARY TRANSFER TAX PURSUANT TO REVENUE & TAXATION CODE
SECTION 11922
FOR VALUABLE CONSIDERATION, receipt of which is hereby
acknowledged ("Grantor"), hereby grants to the
CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California
("Grantee"), all that certain real property located in the City of Huntington Beach, County of
Orange, State of California, described in Exhibit "A" attached hereto and incorporated herein by
this reference (the "Property") for the purpose of using the Property for public recreation
purposes, including, without limitation, as a public park, and maintaining thereon all
facilities and improvements necessary.for such purposes.
SIGNATURES APPEAR ON TIE FOLLOWING PAGE.
LA#102859 v3 D-2
IN WITNESS WHEREOF, the undersigned has executed this Grant Deed on this
day of 200, to be effective upon its recordation in the Official Records of the
County of Orange, California.
GRANTOR:
By:
By:
LA#102859 A D-3
DEED CERTIFICATION
CITY OF HUNTINGTON BEACH
This is to certify that the interest in real property conveyed by the Grant Deed dated
from , a California general
partnership to the CITY OF HUNTINGTON BEACH is hereby accepted by the
undersigned officer or agent on behalf of the City Council of the City of Huntington
Beach pursuant to authority conferred by Resolution No. 3537 of the City Council of the
City of Huntington Beach adopted on August 7, 1972, and the grantee consents to the
recordation thereof by its duly authorized officer.
Dated:
CITY OF HUNTINGTON BEACH
CONNIE BROCKWAY, CMC
CITY CLERK
By:
Deputy City Clerk
LA#102859 v3 D-4
STATE OF CALIFORNIA )
)SS.
COUNTY OF )
On this day of 200� before me, the
undersigned, a Notary Public in and for said State, personally appeared
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 signatures(s)
on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
Notary Public in and for said State
STATE OF )
)SS.
COUNTY OF )
On this day of 200__, before me, the
undersigned, a Notary Public in and for said State, personally appeared
, 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 signatures(s) on the
instrument the person(s), or the entity upon behalf of which the person(s) acted, executed
the instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
Notary Public in and for said State
LA#102859 v3 D-5
_I
EXHIBIT "A" TO GRANT DEED
Legal Description of Property
[TO BE INSERTED PRIOR TO RECORDING]
y
LA#102959 v3 D-6
EXHIBIT E
EXHIBIT E
EASEMENT AGREEMENT
LA#102856 0 E-1
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City Clerk
CITY OF HUNTINGTON BEACH
2000 Main Street
Huntington Beach, CA 92648
Exempt Recording Per Government
Code Sections 6103 and 27383
Space Above This Line For Recorder's Use
EASEMENT AGREEMENT
This Easement Agreement (the"Agreement") is entered into as of
200__, by and between (the "Grantor"), and the
CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California (the
"Grantee"), who agree as follows:
1. Recitals. This Agreement is made with reference to the following facts and
circumstances:
(a) The Grantor is the owner of certain real property situated in the City of
Huntington Beach, County of Orange, California (the "Easement Property"), and more
particularly described on Exhibit "A" attached to this Agreement and incorporated by this
reference.
(b) The Easement Property is subject to Development Agreement No. 90-1, recorded
November 14, 1990, as Document No. 90-599766 in the Official Records of Orange County,
California(the"Development "Agreement").
(c) Pursuant to the Development Agreement, the Grantor is obligated to dedicate the.
Easement Property to the Grantee and to improve it,together with certain other property, as a
neighborhood park.
(d) The Grantee has determined that the Easement Property should be conveyed to
the Grantee through the grant of an easement, and the Grantor, for good and valuable
consideration, the receipt and sufficiency of which is acknowledged, has agreed to and is
willing to grant that easement to the Grantee, all as more particularly set forth in this
Agreement.
2. Grant of Easement. The Grantor grants to the Grantee, for the benefit of the Grantee and
its successors, assigns, licensees, permittees and invitees, an irrevocable, perpetual and
exclusive easement in, over, upon, and across the Easement Property for the purpose of using
the Easement Property for public recreation purposes, including, without limitation, as a public
park, and maintaining thereon all facilities and improvements necessary for such purposes. The
easement granted in this Section 2 is in gross.
LA#102856 v3 E-2
3. Limitations on Grant. The Grantee acknowledges the terms and provisions of the
Environmental Indemnification Agreement (the "Environmental Agreement"), dated as of
, 2002, by and between PLC, a California General partnership and Chevron
Land and Development Company ("CL&D") and acknowledges that pursuant to the
Environmental Agreement certain investigatory, remedial and monitoring activities will be
ongoing concerning the environmental condition of the Easement Property, all as more
particularly described in the Environmental Agreement. The Grantee understands and agrees
that the easement granted under this Agreement and the Grantee's rights with respect to that
easement are subject to the terms and provisions of the Environmental Agreement.
4. Additional Rights. Subject to the provisions of Section 3, the easement granted in this
Agreement includes the grant of all rights incidental or reasonably necessary to the Grantee's
complete use and enjoyment of the easement, including, without limitation: the right of access,
ingress and egress to and from the Easement Property;the right to alter or modify the Easement
Property; the right to penetrate the surface of the Easement Property and to make excavations
and fills and to change the grade of the Easement Property, including, without limitation, the
right of the Grantee to use any clean fill placed over the contamination barrier that is installed
by CL&D (as defined in Section 3 of this Agreement) so long as there is no physical intrusion
into the barrier by Grantee, Grantee's representatives or any other party, and the right to install,
construct and reconstruct on the Easement Property, and the right to remove from the Easement
Property all such improvements, fixtures, equipment and other property as the Grantee from
time to time deems appropriate in its sole discretion.
5. Other Provisions. This Agreement is to be construed and enforced in accordance
with the internal laws of the State of California, without regard to principles of conflicts of law.
Venue for any disputes regarding this Agreement shall be Orange County, California. No term
or provision of this Agreement can be amended or waived orally or by a course of conduct, but
only by an instrument in writing executed by the duly authorized representatives of the parties.
This Agreement is binding upon and inures to the benefit of the successors and assigns of the
parties.
The parties have executed this Agreement as-of the date first set forth above.
CITY OF HUNTINGTON BEACH,
a municipal corporation of the State of
California
By: By:
Mayor
By: ATTEST:
City Clerk
LA#102856 v3 E-3
CERTIFICATE OF ACCEPTANCE
This is to certify that the interest in real property conveyed by the Easement Agreement, dated
as of , 200� by to the City of
Huntington Beach, a municipal corporation, is hereby accepted by the undersigned officer on
behalf of the City of Huntington Beach pursuant to authority conferred by Resolution No.
of the City of Huntington Beach, adopted by the City Council of said City on
, and the grantee consents to the recordation thereof by its duly
authorized officer.
Dated: 1200 CITY OF HUNTINGTON BEACH
By:
City Clerk
LA#102856 vs E4
STATE OF CALIFORNIA )
)SS.
COUNTY OF )
On this day of , 200, before me, the undersigned, a
Notary Public in and for said State,personally appeared,
, 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 signatures(s)on the instrument the person(s),
or the entity upon behalf of which the person(s) acted, executed the instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
Notary Public in and for said State
STATE OF CALIFORNIA )
)SS.
COUNTY OF )
On this day of , 200__, before me, the undersigned, a
Notary Public in and for said State,personally appeared
, 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 signatures(s)on the instrument the person(s),
or the entity upon behalf of which the person(s)acted, executed the instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate,first above written.
Notary Public in and for said State
LA#102856 v3 E_5
STATE OF CALIFORNIA )
)SS.
COUNTY OF )
On this day of , 200 , before me, the undersigned, a
Notary Public in and for said State, personally appeared.
, 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 signatures(s) on the instrument the person(s),
or the entity upon behalf of which the person(s) acted, executed the instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
Notary Public in and for said State
STATE OF CALIFORNIA )
)SS.
COUNTY OF )
On this day of , 200__, before me, the undersigned, a
Notary Public in and for said State,personally appeared
, 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 signatures(s)on the instrument the person(s),
or the entity upon behalf of which the person(s) acted, executed the instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
Notary Public in and for said State
LA#102856 v3 E-6
S
EXHIBIT "A"
Legal Description of Easement Property
[TO BE INSERTED PRIOR TO RECORDING]
LA#102856 v3 E_7
EXHIBIT F
EXHIBIT F
MEMORANDUM OF ENVIRONMENTAL INDEMNIFICATION AGREEMENT
LA#102858 v4 F-1
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City Clerk
CITY OF HUNTINGTON BEACH
2000 Main Street
Huntington Beach, CA 92648
Exempt Recording Per Government
Code Sections 6103 and 27383
Space Above This Line For Recorder's Use
MEMORANDUM OF ENVIRONMENTAL
INDEMNIFICATION AGREEMENT
THIS MEMORANDUM OF ENVIRONMENTAL INDEMNIFICATION
AGREEMENT (the "Memorandum") is made as of , 200_ by and
between CHEVRON LAND AND DEVELOPMENT COMPANY, a Delaware corporation
("CL&D"), PLC, a California general partnership, and the CITY OF HUNTINGTON BEACH, a
municipal corporation of the State of California ("City").
1. CL&D, PLC and City have entered into that certain Environmental
Indemnification Agreement dated as of , 2002 (the "Agreement") pursuant to
which, among other things, _ has agreed to convey to City fee title to certain real property
which is described in the Agreement, and _ has also agreed to grant City an easement
respecting the real property located in the City of Huntington Beach, County of Orange, State of
California, described in Exhibit "A" attached hereto and incorporated herein by this reference.
(the real property described on Exhibit "A" being referred to herein as the 'Basement Property"),
all as more particularly provided in the Agreement.
2. The Agreement further provides that City may at any time require that the
Easement Property, or any parts thereof, be conveyed to City by grant deed(s) without payment
of any consideration by and at no cost to City.
3. The purpose of this Memorandum is to give notice of the existence of the
Agreement and of the rights of City referred to in paragraph 2 above. To the extent that any
provision of this Memorandum conflicts with any provision of the Agreement, the Agreement
shall control.
4. This Memorandum may be executed in counterparts, each of which shall be
deemed an original, but all of which, together shall constitute one and the same instrument.
LA#102858 v4 F-2
The parties have executed this Memorandum as of the date first set forth above.
PLC, CITY OF HUNTINGTON BEACH,
a California general partnership a municipal corporation of the State
of California
By: By:
Mayor
By: ATTEST:
City Clerk
CHEVRON LAND AND
DEVELOPMENT COMPANY,
a Delaware corporation
By:
(Print Name)
ITS:(circle one) Chairman/President/
Vice President
By:
(Print Name)
ITS:(circle one) Secretary, Chief Financial
Officer/Assistant Secretary
LA#102858 v4 F-3
STATE OF CALIFORNIA
)SS.
COUNTY OF )
On this day of , 200_, before me, the
undersigned, a Notary Public in and for said State, personally appeared
, 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 signatures(s)
on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
Notary Public in and for said State
STATE OF CALIFORNIA )
)SS.
COUNTY OF )
On this day of , 200_, before me, the
undersigned, a Notary Public in and for said State, personally appeared
, 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 signatures(s)
on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed-the instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
Notary Public in and for said State
LA#102858 v4 F-4
STATE OF CALIFORNIA )
)SS.
COUNTY OF )
On this day of , 200_, before me, the
undersigned, a Notary Public in and for said State, personally appeared
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 signatures(s)
on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
Notary Public in and for said State
STATE OF CALIFORNIA )
)SS.
COUNTY OF )
On this day of , 200_, before me, the
undersigned, a Notary Public in and for said State, personally appeared
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 signatures(s)
on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
Notary Public in and for said State
LA#102858 v4 F-5
EXHIBIT "A"
Legal Description of Easement Property
[TO BE INSERTED PRIOR TO RECORDING]
LA#102858 v4 F-6 /
ATTACHMENT #3 '
SUMMARY OF PARK AREA CLOSURE PLAN
9/13/01
The attached figure illustrates the primary elements of the closure plan for the Holmby Park
Area of the.Holly Seacliff site. After the existing soil vapor extraction system is shut down, the
surface equipment will be removed and the vapor wells sealed with a cement/bentonite slurry.
The surface soils in the wellfield area will then be graded to prepare the site for cap
construction. The following paragraphs describe each element of the cap design.
Engineered Clean Fill
A minimum of two feet of engineered clean fill will be installed as the uppermost layer of the
cap. It will provide cover and protection for the vapor barrier below, and will also provide a
stable surface for the park facilities to be installed above iL Additional thicknesses of soil may
be required by the park designers for structural footings or to manage surface drainage. The
majority of park facilities above the cap would be constructed with a hard surface to reduce
infiltration and prevent erosion. Trees with penetrating roots would not be planted, although a
limited amount of shallow-rooted grass and shrubs would be allowed.
Barrier Laver
This layer will be installed at the base of the clean fill to function as a barrier or warning to
workers to prevent inadvertent digging and intrusion into the underlying layers. It may also .
impede burrowing animals and the downward growth of roots. It will be constructed of either a
highly visible geogrid material to gain the attention of workers, or of cobbles and coarse gravel.
It may also include a filter fabric to prevent the migration of fine particles of soil from above. The
thickness of this layer would be one foot or less.
Drainage Laver
A sloping drainage layer will be placed upon the impermeable liner to prevent infiltrating water
from collecting on top of the liner. The water will be directed by a collection system to an
appropriate discharge point, such as the storm drain beneath Seagate Drive. This layer will be
constructed of either a geocomposite material or a coarse sand to a thickness of less than one
foot. It will be designed to convey the anticipated maximum volume of infiltrating water.
Impermeable Liner
The principal function of the liner is to prevent the upward migration of.soil vapor from the
residual contamination beneath the cap. Because of its impermeable nature, the liner will also
prevent the downward infiltration of water from the surface. The liner will likely be constructed
of high-density polyethylene (HDPE), and will be sloped to facilitate flow in the drainage layer
above.
Vapor Collection Laver
The vapor collection layer will be installed on top of the existing soils, immediately below the
liner. It will have a thickness of approximately one foot. Soil vapor that may migrate upward
from these soils will collect beneath the impermeable liner in this layer, which will be constructed
of coarse sand or gravel. Subsurface piping will be installed and routed to a treatment area
where it may be connected to a blower and carbon treatment canister. This equipment would
draw off and capture contaminants that may be present in this layer.
Monitoring points
Soil vapor monitoring would be conducted from vapor probes installed around the perimeter of
the cap (outside the contaminated area) and within the clean fill layer of the cap itself. Probes
would not be installed through the liner to preserve its integrity. The purpose of these probes
would be to monitor the soil vapor for the unlikely migration of contaminants. The perimeter
probes would be installed to the equivalent depths of both the vapor collection layer and the
residual contamination. Additional monitoring would be conducted from the subsurface piping in
the vapor collection layer and from vapor treatment equipment that may be installed.
Park Area Closure Plan
Perimeter vapor probes
(various depths) Shallow vapor probes
/ Vent
Mal
Carbon
Aim
Surface paving
Engineered clean fill—•
Barrier layer
Sloping drainage layer _
Impermeable liner
Vapor collection layer-,
� Blower
s Residual
Cof tamination
• qW
• „ S 40"
NOTE: Drawing not to scale s
ATTACHMENT #4 ' .
Y P.O�IAQ rrrws� • +.�. s.r.
_ Il�q.tlM!6 RA1 AC14___
IN1Y �1WYQ .a m.n
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ImOOMDA
- •
1=UINAM
SEA07TE DPIVE�
m.e.ie auk J �e�e..<.mcv� a
PROMENADE NEIGHBORHOOD PARK - HUNTINGTON BEACH, CA CONCEPTUAL SITE PLAN
PLC LAND COMPAMY.WWPORT REAf.N CA :: �^
C•14Y-`F
Ji 1r r:51 Br t.
HOLMBY PARK
Conditions for Acceptance
October 21 , 2002
HOLMBY PARK
Should the City approve acceptance of a 4-
acre Park parcel which includes a portion in
fee and a portion with an easement on clean
cap soil over contaminated soil as provided
for in an Environmental Indemnification
Agreement?
Lot 0mmUv,1Cif10P"
PLC DEVELOPMENT PLAN
OW
Site Location
•Corner of Promenade & _
Seagate near Gothard
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POMENADE PARKWAY g
Parcel
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Configuration
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• Parcel 1 & 2 in Fee
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SSOCGTES FOR P TO ACE WIUMPANr IE O DESCRIPTION
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FOR PRLYENADE M.`IQIBDREA PARK 511E
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Park Requirements
• 4-acre Park required by Holly Seacliff
Development Agreement
• Other site alternatives explored
• Preferred site within Holmby area
• Private use of site would not be
recommended, likely leaving site as
"BROWNFIELD"
Site Characterization
• Sulfur containing compounds Thiophenes
& Mercptans in easement area as deep
as 30 to 50 feet
• 1998 ChemRisk assessment — no known
health risk and do not migrate
• Skunk-like odor would be nuisance if
exposed or disturbed
• RWQCB has approved closure report and
commented on cap design
3
Park Area Closure Plan
Pedmeter Vapor probes
(Varlous doo tn) Shallow vapor pmbec
vem
ti I A rkRpF c � �
Sudaoepwbg
Engineered dean An &»„��.,,.'::Yij3�da� t �llr r „,� � a 'Tf'
Bamer layer ,.
sbphg drainage)aysr _
vapor collection layer - -��•
Blower
vu aw
Residual
Cofltaminna6on .
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NOTE:Drawing rot to scale x'.
TOP
Closure Design
• Engineered clean fill — minimum of 3 feet
• Barrier Warning Layer — highly visible
geogrid or cobble stones and coarse
gravel
• Drainage Layer
• Impermeable Layer — high density
Polyethylene
• Vapor collection Layer
Bottom
4
Park Design
• Community Services Commission will
provide input on final design
• Design provides hardscape protection over
clean fill protective cap
• Park to be constructed by PLC and then
dedicated to City
• Engineering firm to be employed by City
and paid for by PLC to observe
construction to assure cap and protective
membrane are not impacted
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PROMENADE NEIGHBORHOOD PARK-HUNTMIGTON BEACH CA
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5
Environmental Indemnification
Agreement
• $10,000,000 coverage for 10 year term
• Full cost of policy prepaid by CL&D
• Covers cleanup costs for new & pre-existing
contaminants including migration off property
• Liability protection to Third parties
• City Employees will not be covered
• Option for addition 10 year coverage (not
guaranteed); CL&D will pay up to $250,000
toward renewal
6
,,a
Council/Agency Meeting Held:
Deferred/Continued to:
❑ Approved ❑ Conditionally Approved ❑ Denied City Clerk's Signature
Council Meeting Date: October 21, 2002 Department ID Nu r�r ber PL02-42
CITY OF HUNTINGTON BEACH
REQUEST FOR.COUNCIL ACTION
A a c
SUBMITTED TO: HONORABLE MAYOR AND CIT COUNCIL MEMBERS
o
SUBMITTED BY: RAY SILVER, City-Administra or &Pdz-;' 4
Cn
PREPARED BY: MICHAEL P. DOLDER ZrChief/V_100'
JIM ENGLE, Acting rector of Community Servic
N n
HOWARD ZE�LE�F KY, Director of Planning
!f
SUBJECT: APPROVE A/CEPTANCE OF PARK PARCEL AND
ENVIRONI�IY�NTAL INDEMNIFICATION AGREEMENT PERTAINING
THERET (HOLMBY PARK)
Statement of Issue,Funding Source, ecommended Action,Alternative Actlon(s),Analysis,Environmental Status,Attachment(s)
Statement of Issue:
PLC has proposed dedicate a four-acre parcel to the City of Huntington Beach to satisfy
its park obligation pursuant to the Holly Seacliff Development Agreement. Approximately
1.9 acres of the ark parcel contains contaminants, primarily Thiophenes and Mercaptans,
which produc a very strong skunk-like odor even at low concentrations. Chevron Land &
Developmen•Company would cap the contaminated portion of,the parcel and PLC would
construct t e park. The cap will be in place, the park will be constructed and the
envir Inm ntal insurance coverage will be in effect before conveyance of the park to the City.
Staff re mmends the City Council accept the park parcel pursuant to an Environmental
Indem ification Agreement that sets forth the terms of conveyance and the responsibilities
and nights of the three parties as well as the insurance coverage.
/ecommended
ding Source: Not applicable.
9 pp
Action:
tion-to:
1. Approve the acceptance of the four-acre parcel for future park dedication, subject to the
terms of the Environmental Indemnification Agreement and authorize the City Clerk to
accept the deed(s) and easement attached to or referenced in the Environmental
Indemnification Agreement; and
• REQUEST FOR COUNCIL ACTION
MEETING DATE: October 21, 2002 DEPARTMENT ID NUMBER: PL02-42
2. Approve and authorize the Mayor and City Clerk to execute the Environmental
Indemnification Agreement in substantially the same form and upon approval as to form
by the City Attorney's Office, which includes non-standard indemnification provision as.
set forth in Sections 5.2, 6.1 through 6.3 and 7.1 of the Environmental Indemnification
Agreement, the City's indemnification, defense and hold harmless obligations to PLC
and Chevron Land & Development Company as set forth in Sections 6.2'and 7.1 of the
Environmental Indemnification Agreement; and the insurance deductibles and self
insured retentions and programs specified in Sections 6.4(b), 6.4(d)(x) and 6.4(e) of the
Agreement; and
3. Subject to the written approval as to form by the City Attorney; authorize the City
Administrator to execute any further documents and instruments as may be necessary
or reasonably desirable to consummate the transactions contemplated by the
Environmental Indemnification Agreement or any part thereof.
i
Alternative Action(s): i
The City Council may make the following alternative mdtion(s):
1. Deny the acceptance:of the four-acre parcel for future park dedication and direct staff
accordingly.
2. Continue the acceptance of the four-acre/parcel issue for future dedication and the
Environmental Indemnification AgreemE(nt and direct staff accordingly.
Analysis:
A. PROJECT PROPOSAL:
Applicant: PLC, 19 Corporate Plaza Dr., Newport Beach, CA 92660
r
Location: Southwest corner of Promenade Parkway and Seagate Street, east of
Gothard Street and north of Garfield Avenue
r'
PLC has proposed.to dedicaWa four-acre parcel located in the Holmby area of Holly.Seaciiff.
to the City of Huntington Beach to satisfy its park obligations pursuant to the Holly Seacliff
Development Agreement (DA). Approximately 1.9 acres of the park parcel contains
contaminants. (A map of the vicinity is set forth in Attachment 1). The contaminated portion
of the parcel would be capped according to a closure plan. Chevron Land & Development_
Company (CL&D) has the responsibility for completing the closure plan and ongoing
monitoring. PLC would construct the park to City specifications as delineated in the DA.
Due to the circumstances involved, staff is requesting that the City Council provide direction
at this time as to whether or not it will agree to accept the proposed site, rather than PLC
proceeding with overall site development plans first as has been the case for the other
residential/park plans proposed by PLC. Should the City Council decide to accept the park
parcel, City staff has negotiated an Environmental Indemnification Agreement that sets forth
RCAPL02-42 1014Final.DOC -2- 10/15/2002 3:36 PM
REQUEST FOR COUNCIL ACTION
MEETING DATE: October 21, 2002 DEPARTMENT ID NUMBER: PL02-42
the terms of conveyance and the responsibilities and rights of the three parties for y
Council consideration:
B. BACKGROUND:
The Holmby site consists of 15.6 acres and has been planned for neio orhood park and
medium density residential land uses since the early 1990s. The fir conceptual
development plans for the Holmby area, from 1994, show a four acre neighborhood park in
the currently proposed location at the southwest corner of Promenade Parkway and Seagate
Street. j
The Holmby site is part of the Holly Seacliff Specific PI and is subject to the DA. The
requirements for a neighborhood park in this area ori7ate in these two documents.
Holly Seacliff Development Agreement PaFk Requirements
i
The DA was approved in 1990. Section 2.2.2 (a) states that the developer is
required to dedicate 12 acres for neighborhood parks as identified in Exhibit D.
of the DA. Exhibit D shows the general location for three parks and indicates
each is four.acres. Section 2.22 (b) states that the neighborhood park site
location shall be determined via adoption of the Holly`Seacliff Specific Plan.
Holly Seacliff Specific Plan Park Requirements
i
The Specific Plan was'adopted in 1992. Section II indicates the general
location of three, fourr-acre neighborhood parks. In terms of the subject park, it
shows the locatiorrvof the park east of Gothard Street and south of Promenade
Parkway.
Pursuant to the Sp ific Plan and DA, between approximately 1994 and 1996, CL&D, in'
conjunction with t then developer, Seacliff Partners, undertook site remediation of the area
generally locate south of Ellis Avenue., north of Garfield Avenue, east of Gothard Street and
northwest of M n Street, including the Holmby site. During the remediation process, a .
number of tec•nologies were employed in an effort to remediate the area once occupied by
a refinery an a sugar mill. However, the presence of Thiophenes and Mercaptans, which
produce a v ry strong skunk-like odor at very low concentrations (parts per billion),
prevented n-site remediation. The remediation technique finally employed included the
excavatio, and removal of contaminated soils (described as "source materials" in the project
report) t¢, an off-site landfill utilizing a Teflon tent to cover the work area and equipment.
During ,1995 and 1996, approximately 22,000 tons of contaminated soils were removed and
disposed of using this process. At the conclusion of the remediation and based on the best
information at the time, the City and the developer believed that all of the source material
had been removed. Subsequently roadway and residential development was started in the
area.
RCAPL02-42 1014Final.DOC -3- 10/14/2002 3:49 PM
4
l
REQUEST FOR COUNCIL ACTION
MEETING DATE: October 21, 2002 DEPARTMENT ID NUMBER: PL02-42 i
During site preparation in the Holmby and Cove sites (the Cove property is a separat ut
adjacent:parcel located at the northeast corner of.Garfield.Avenue and Gothard Str t
owned by CL&D) additional source material was discovered. However, due to the epth.of.
the source material and the now existing residential development in the immedi vicinity,
excavation was no longer a viable remediation option. Therefore, a soil vapor raction
system was installed in 1997 to continue the remediation effort by reducing r idual levels of
the source material.
On September 20, 1999, the City Council held a study session regardi the soil
contamination and remediation of the Holmby and Cove sites and fu re park development.
Subsequently, the City Council created an Ad Hoc Committee to f her examine the issues.
In 2001, the Ad Hoc Committee directed staff to explore the desi alternatives, remediation
methods and legal implications of the City accepting the Holm park site.
C. STAFF ANALYSIS AND RECOMMENDATION:
Park Location
Consistent with the Holly Seacliff Specific.Plan, fo acres of the total .15.6-acre Holmby site
have been proposed for a park. The remaining .6 acres are slated for medium density
residential use and PLC is estimating approxi tely 100 to 120 units. This remaining 11.6-
acre area is expected to require typical rem e cation techniques for hydrocarbons, etc. similar
to the rest of the Holly Seacliff area. The Council Ad Hoc Committee discussed the
possibility of locating the park site in this `clean" area. The choice of a "clean" area for the
park would be the safest option for the ity with regard to possible concerns about
environmental contamination since a City would avoid any risk of being responsible for the
liability associated with a site that id contain or had contained hazardous wastes or
materials. Although this remai an option should the City Council choose not to accept the
proposed park location, rem
does not believe it is preferable for two reasons.
1. The Fire De p ment cannot approve any private use on the proposed park site,
with the ex ption of a parking lot, due to the lack of control of protecting the cap.
Therefor , if the site does not become a park, it likely would remain a "brownfield".
indefi ' ely as there would be no financial incentive for CL&D to cap or clean the
site
2. he Community Services Department believes that the proposed site is a preferred
park location within the Holmby area because it is centrally located for the existing
and planned residential uses in this part of Holly Seacliff, and the site has easy and
safe access off Seagate Street. If the park were to be located off Gothard Street, it
would be located across from industrial uses and on a major arterial. Staff does not
believe that this is an appropriate location for a neighborhood park.
The Ad Hoc Committee also discussed the possibility of locating the neighborhood park in
another part of Holly Seacliff; however, PLC does not own any other vacant and/or unentitled
RCAPL02-42 1014Final.130C -4- 10/14/2002 3:49 PM
J
I
REQUEST FOR COUNCIL ACTION
MEETING DATE: October 21, 2002 DEPARTMENT ID NUMBER: PL02-42
property. In terms of PLC acquiring suitable property, the only other residentially- signated
property in Holly Seacliff that is not currently developed.with residential uses a would meet
the minimum size criteria.is developed and underdeveloped property on the st side of.
Gothard Street, south of Garfield Avenue. Although the east side of Goth d Street is
designated for future residential use, these properties are currently used or industrial
purposes including active oil wells and the clean-up implications of reu a of these properties
are unknown. Based on the foregoing, staff does not believe that to ting the park in
another part of Holly Seacliff is a viable option.
The City Council could elect to waive the requirement for the p by changing the DA and
the Holly Seacliff Specific Plan. As of August 2000, PLC has ompleted two of the three
required neighborhood parks. Seagate Park consists of 3.1 cres of public park and 10.6
acres of Home Owners' Association-maintained park and stored wetland/riparian area.
Peninsula Park consists of 7.03 acres of public park. Th s, the developer has dedicated
10.13 acres of the total 12 acres that is required. Staff oes not recommend this course of
action because the master planning for the eastern p rtion of Holly Seacliff was predicated
on a third neighborhood park. Approved land use nsities for this area of Holly Seacliff are
greater, allowing for smaller lots and attached pro uct type housing, which results in less
open space for.residents. The location of a nei borhood park in this vicinity was intentional .
to ensure that adequate open space would be rovided to meet the area's recreational
needs.
Section 2.2.2(c) of the DA ties constructi n of the neighborhood parks to the number of units
built within a given planning unit in Hol Seacliff. Based on this requirement and the number
of homes already constructed in the anning unit that contains Holmby, no additional
residential development can occur ntil the park is completed. Once the DA expires in
December 2005, the City will not a able to compel construction of the park. If, post-DA, the
City allows residential develop ent to go forward on the 11.6-acre portion, the City would be
able to require dedication of rk land pursuant to the Quimby Act. Based on the type and
number of units that PLC is orecasting, this would result in a maximum of 1.6 acres of public
park, substantially less th the four acres that would be achieved under the DA.
After.evaluating the p ential park location options, staff believes that the proposed site best
meets the recreatio I and planning needs of the community. Based on this conclusion, the
remainder of this alysis focuses on how best to ensure that the City's interests are
protected shoul t decide to accept the property. Accordingly, the following sections review
the areas of c cern regarding the property, i.e. the type of contamination, the status of the
remediation -date, the proposed capping plan, the park design and the Environmental
Indemnific ion Agreement.
Charac rization of Holmby Park Site
In J y 1998, ChemRisk completed the "Risk Evaluation of Cove and Holmby Park
R ediation and Closure Strategy' for the property on behalf of CL&D. Site characterization
udies identified several chemicals of interest and the remedial standards and methods that
RCAPL02-42 1014FInal.130C -5- 10/14/2002 3:49 PM
REQUEST FOR COUNCIL ACTION
MEETING DATE: October 21, 2002 DEPARTMENT ID NUMBER: PL02-4
could be used to clean the site. The City of Huntington Beach Fire Department, the ire
Department's consultants and the Regional Water Quality Control Board (RWQC have
evaluated these studies and tests:
The chemicals of interest on the Holmby site include: sulfur compounds (T 'ophenes,
Mercaptans, Sulfides and Disulfides) and Total Petroleum Hydrocarbon H) components
(Benzene and Polynuclear Aromatic Hydrocarbons). These materials a buried within an
approximate 1.92-acre area in the middle of the proposed 4.01-acre rk site. Based on
known data, the sulfur compounds do not migrate, nor do they hav any known health risk
associated with them. However, they have a very strong skunk-li odor that would be
considered a nuisance if exposed or disturbed. The TPH comp nents can be characterized
as organic compounds that have a potential health risk throu direct contact with
contaminated soil and vapor inhalation. TPH is composed many individual hydrocarbon
constituents with varying levels of toxicity. The TPH comp nents are required to be
remediated to the standards in the City of Huntington Be ch City Specification 431-92.
Status of Remediation/Containment
CL&D conducted vapor extraction.of the.Holm by nd.Cove) properties from February 1997
to April 2002. The vapor extraction accomplis d the following: reduced the TPH to levels at
or below City Specifications and removed of r soil contamination to such a low
concentration, as determined by "Rebound ests so that operating the soil vapor extraction
system is no longer technically and econ . ically feasible to operate. In April 2002, the
"Shut Down Test Report" was approve and the Soil Vapor Extraction system was
decommissioned. The Fire Dep/Hoc
t's consultants and the RWQCB reviewed the final
report.
Pursuant to direction from the Committee, staff contacted various state agencies to
solicit the active involvement nd oversight of another regulatory agency. The RWQCB
became actively involved i he review of the work plan for containment of the site in 2001.
Since that time the City's ire Department, acting as the Lead Enforcement Agency (LEA),
has worked in coopera ' n with the RWQCB to provide oversight of the remediation. The
RWQCB has approv the closure report and has reviewed and commented on the cap
design. Their com ents are incorporated into the latest design revision, along with those
provided by City aff.
Proposed Clo re/Containment Plan.
Concurren ith remediation, work progressed on the conceptual design for a "cap" over the
contamin nts. Due to the nuisance odor that would result from soil extraction and the depth
of the aterial, the Fire Department believes that the most reasonable solution for containing
the si is capping. The "cap" provides a vapor barrier to prevent upward migration of the
stro odors and percolation of water through the contamination zone. The cap design,
wh' h totals approximately five feet in thickness, would include the following components,
fr m bottom to top, which are described more fully in Attachment 3.
CAPL02-42 1014Final.DOC -6- 10/14/2002 3:49 PM
REQUEST FOR COUNCIL ACTION
MEETING DATE: October 21, 2002 DEPARTMENT ID NUMBER: PL02-42
Vapor Collection Layer— installed on top of existing soils, approximately o foot
thick; includes subsurface piping.
Impermeable Layer-constructed of high-density polyethylene for the urpose of..
preventing upward migration of soil vapor or downward infiltration o ater.
Drainage Layer— constructed of either a geocomposit material or oarse sand less
than one foot thick to prevent infiltrating water from collecting o top of the liner;
water will be directed to collection system.
Barrier Layer— constructed of either a highly visible geogri material or of cobbles
and coarse gravel to function as a warning to workers to revent inadvertent
digging into the underlying layers
Engineered Clean Fill — a minimum of three feet to ow adequate room for
structural footings for park equipment and plant ro systems.
The closure plan also includes ongoing monitoring. Soil apor monitoring would be
conducted from vapor probes installed around the peri eter of the cap. Additional
monitoring would be conducted from the subsurface iping in the vapor collection layer.
The Ad Hoc Committee asked if there were othe viable clean-up methods that could be
employed so that the contaminants would not ave to remain in place. The only other
cleanup method.that is possible would nece itate excavating the contaminated portion of
the site to a depth of 30 to 50 feet. Due t he odor involved and the fact that the
surrounding area is heavily developed, t e Fire Department believes that this approach is
not practical.
Park Design
The neighborhood park plan h been developed by staff and PLC based on the capping
design and the desire to elimi ate any disturbance of the odor-causing compounds. To that
end, the capped portion of a park primarily will contain impervious improvements. These
will consist of a tennis co , two rubberized surface tot lots, a rubberized surface picnic
area,.a basketball court volleyball court, walkways and a parking lot, as described in
Attachment 4. The la r a impervious hardscape area will result in expanded recreation
amenities, including tennis court, which are not included in current neighborhood park
design.standards. onversely, the non.-capped portion of the site will consist primarily of
turf, though som of the hardscape improvements extend into this area. Staff has worked
with PLC to en re that the cap design allows sufficient space for the required footings for
the structure e.g. basketball hoops. The park will not be lighted for night use but will
include sec�rrity lighting. Staff has worked with PLC to design recreational amenities with the
highest p lic appeal that meet the requirements of a hardscape area necessary for cap
protectiq, This park proposal will be presented to the Community Services Commission for
their inf ut as to the final park design.
Bec use of the cap design, much of the proposed park site will be substantially elevated in
co parison to the surrounding property. The highpoint of the site will have a finished grade
0 69 feet and the outer limits of the capped area will be at 68 feet. Top of curb elevation for
eagate Street is approximately 60.5 feet and top of curb elevation for Promenade Parkway
RCAPL02-42 1014FinaLDOC -7- 10/15/2002 9:14 AM
REQUEST FOR COUNCIL ACTION
MEETING DATE: October 21, 2002 DEPARTMENT ID NUMBER: PL02-42 /
is approximately 55 feet. From Promenade Parkway, the park site will gradually rise to e
highpoint. From Seagate Street, a steeper slope is required because the required ca ing
extends to the.curb. The other.two..sides of the.proposed park site abut the portion f the
Holmby site that is proposed for residential development. There will be an appro mate 10-
foot differential in grade at the northwest property line, adjacent to the propose tennis court,
but only a 3.5-foot differential at the southwest property line. There would al o be a 50' x 50'
enclosed area for monitoring equipment at the southwest corner adjacent Seagate Street.
Although having such an elevated park site is not preferred, Communi Services and
Planning staff believe that there are adequate buffers between the oposed park site and
existing development and that similar buffers can be incorporated ' to the design of the
future residential units proposed for Holmby. The park site is s arated from existing homes
by Promenade Parkway and Seagate Streets. Both of the st ets include a minimum 15-foot
wide landscape area adjacent to the existing homes, and o the park side of Promenade
there is an existing 20-30 foot wide eucalyptus windrow at will also assist in screening the
park. In terms of the future Holmby residential area, a noted, the southwest property line
has a minimal differential in grade and there is a gr ual slope that provides approximately
65-100 feet of separation between the property li and the volleyball court, the closest
..active use. For the..northwest property line adj ent to the tennis court, a ten foot high
retaining wall will be required. Staff has infor ed PLC.that, on the residential side of the
retaining wall, landscape planters and a pl ted slope would be required along with a
minimum 20-foot setback to any residen s and installation of dual-paned windows in the
units. Staff has also requested that P locate the private recreational open space that will
be required for the residential projec djacent to the tennis court to minimize potential noise
impacts. Finally, as noted, the par will not be lighted for nighttime use, which would further
minimize noise impacts.
Environmentallndemnificatio Agreement
The Environmental Inde ification Agreement (Agreement), Attachment 2, is designed to
protect the interests of e City, as well as CL&D and PLC, with respect to the proposed park
site. Recital Eon pa 1 of the Agreement states:
"The intent i this Agreement is that City bear no responsibility or liability for
Environme tal Contamination or Covered Contamination or any other
contami tion at the Property other than that associated with any activities of
the Cit or that which occurred after conveyance of the Property to City and
whic as not caused by, did not result from or was not associated with any
acti (ties of CL&D or PLC."
/nntially
ment sets forth how and under what conditions the City would accept the park
he purposes of the Agreement, the park site has been divided into two parts: the
rt and the "contaminated" part that would be capped. The clean part that
surrounds the contaminated portion would be conveyed to the City by a grant
e Section 5.4(a).) The contaminated part, after capping and construction of the
d be conveyed to the City by an irrevocable, perpetual, exclusive easement, which
intained as long as the City wishes unless the City abandons the park. (See
RCAPL02-42 1014171nal.DOC -8- 10/15/2002 9:14 AM
REQUEST FOR COUNCIL ACTION
MEETING DATE: October 21, 2002 DEPARTMENT ID NUMBER: PL02-42
Section 5.4(b).) Further, such an easement would not be rendered invalid if the City
breached the cap and/or its obligations under the Agreement although the City.co be .
liable for damages in.the event of a.breach.: The.easement would provide the Ci with the
surface rights for park purposes and would also allow the City to use the upper ree feet of
engineered clean fill for grading or other park purposes as long as the City di not interfere
with the cap under the park. Section 5.3 of the Agreement lists the items t t must be
completed prior to the City accepting conveyance. These include: CL&D atisfying its
obligations to remediate Covered Contamination and Environmental C tamination as
defined in the Agreement; City approving a site assess ment/audit for a "clean" area, all
required insurance policies being in place, and PLC constructing th park in accordance with
the requirements of the City. Under Section 5.5 of the Agreeme , the City would reserve its
right to convert its easement rights into ownership at a future d e by accepting a
conveyance of the easement property by a grant deed witho paying any consideration to
PLC.
Pursuant to Section 7.2 of the Agreement, the City is w Iving all statutory and common law
claims against PLC and CL&D with respect to Cover Contamination and/or Environmental
Contamination connected with the Property. The ' y's rights and remedies with regard to
PLC.and CL&D and their affiliates with respect t . nvironmental Contamination and Covered
Contamination will be limited to those set forth this Agreement: During the negotiations,
PLC and CL&D both indicated that they wis d to have all of their obligations and
responsibilities to the City identified in a si gle agreement and that they did not feel it would
be fair to allow the City to be able to pur e a cause of action against either or both of them
if the obligation was not identified in t Agreement. Staff agreed to the request during the
negotiations and thereafter spent c siderable time ensuring that all of the rights and
remedies important to the City ar ncluded in the Agreement.
Pursuant to the Agreement, b h PLC and CUD are providing indemnification protection to
the City, which covers dam es and injuries caused by the Environmental Contamination
and Covered Contaminati and their performance and/or failure to perform the Agreement.
(See Sections 5.2, 6.1, . and 7.1 and 7.3 of the Agreement.) PLC and CL&D will not be
responsible for loss of usiness by the City, diminution in the value of the Property and loss
of,goodwill by City a their indemnification.obligations under Section 6.1.of the Agreement
will not apply to th a same issues. (See Section 7.3.)
Council is advi d that the indemnification protection provided to the City is only as good as
the financial cking of the indemnitor. PLC will essentially have no assets once it develops
and sells a of its property. CL&D may be in a similar situation. Therefore, the
environ ntal insurance policy becomes more important in this transaction because
indem ' ication protections provided by PLC and CL&D to the City may not be viable options
as P and CL&D may not be in existence or not have the financial backing to sufficiently
ind nify the City.
RCAPL02-42 1014Fina1.130C -9- 10/14/2002 3:49 PM
REQUEST FOR COUNCIL ACTION
MEETING DATE: October 21, 2002 DEPARTMENT ID NUMBER: PL02-42
Under the Agreement, the City also has indemnification, defense and hold harmle
obligations to PLC and CL&D. (See Sections 6.2, 6.3 and 7.1.) Section 6.2 an .1 provide
as follows:
"6.2 City's Indemnity Obligations. After the Property is convey to City in
accordance with Section 5.4, City shall protect, defend, indemnify d hold harmless
CL&D and PLC from and against all claims, damages, losses, a enses, judgments,
demands and defense costs (including, without limitation, cost and fees of litigation
(including arbitration) of every nature or liability of any kind) (sing out of, resulting
from, or in connection with, directly or indirectly, the Prope This indemnification and
defense obligation of City excludes such claims, costs, a enses, losses or liabilities (i)
that result from any negligence, willful misconduct or br ach of this Agreement by
CL&D, PLC or any of their agents, vendors, contract sand/or subcontractors, and/or
(ii) that are covered by CL&D's and PLC's indemnif' ation, defense and hold harmless
obligations set forth in this Agreement."
7.1 Increased Costs of Remediation. arty in default of this Agreement shall
be responsible for any and all increased co of remediation, whether direct or indirect,
related to any default of this Agreement a hereby releases., defends and.indemnifies
the non-defaulting party(ies) for all liabili related to such default."
The City's indemnification, defense and Id harmless obligations to PLC and CL&D cover
claims and damages arising out of or i onnection with the park site after it is conveyed to
the City. For instance, such claims a d damages would include an injury resulting from a
slip and fall accident. The main dif rence here, as opposed to other park sites, is that the
City is agreeing to defend, indem fy and hold harmless other parties, PLC and CL&D,for
these claims. With respect to er parks dedicated to the City by developers, the City would
not be obligated to defend, in emnify and hold harmless the.developers for such claims.
PLC and CL&D requested t s indemnification language because, after conveyance, the City
will control the surface of a park site, and PLC and CL&D will have no control.over the
property's use although L&D or PLC will continue to own the part under which the City has
easement rights.
The insurance pro sions allow PLC & CL&D to maintain deductibles and self-insured
retentions and pr grams.
(a) Wi respect to PLC's general public liability insurance, PLC is requesting a
$ 00,000.00 self-insurance retention or deductible. (See Section 6.4(b).)
(b) ith respect to PLC's workers' compensation and employers' liability insurance
(see Section 6.4(a)) and general public liability insurance (see Section 6.4(b)),
CL&D is requesting that it meet these obligations through the self-insurance
program that it participates in. (See Section 6.4(e).)
(c) The environmental insurance policy also contains a $100,000.00 deductible per
incident. (See Section 6.4(d)(x).)
RCAPL02-42 1014Final.DOC -10- 10/14/2002 3:49 PM
REQUEST FOR COUNCIL ACTION
MEETING DATE: October 21, 2002 DEPARTMENT ID NUMBER: PL02-42
The City's Risk Management Division has been actively involved in the preparation of e
Agreement.with.respect to the insurance provisions: City staff is recommending th ouncil.
approve the City's indemnification obligations to PLC and CL&D and the insuranc
deductibles and self-insurance retentions set forth above.
The Agreement also contains a prevailing party attorney's fees provision a Section 9.2 of
the Agreement), which is different from the City's standard.each-party-p s provision.
Section 6.4 of the Agreement requires that PLC and CL&D obtain d maintain certain
insurance policies to afford appropriate protection to the City. T required insurance
policies include general public liability insurance, workers' co ensation and employers'
liability insurance and environmental insurance. Section 6. ) of the Agreement identifies
the environmental insurance coverage that has been re sted by the City. The
environmental insurance will provide protection for liab' y to third parties because of the
contamination and coverage for the cleanup of new ntamination that is discovered on the
property or that migrates off the property. The ter and policy limits for the environmental
insurance were still being negotiated with CL&D nd PLC and their proposed insurance
carriers at the time of preparation of this repo The City has requested a $10,000,000
policy..with a fifteen-year term that would cc ence on the date. of conveyance of the
property to the City. The premium for the olicy would be paid in advance by CL&D:
Additional information about the policy w` be provided, as it becomes available, prior to the
Council meeting on October 21.
In terms of whether or not the pro sed limits of insurance would provide sufficient coverage
for the City, CL&D and PLC, all which could make claims against the policy, staff has
discussed with CL&D and PLC he cost of the cap and park improvements and with outside
counsel the potential liability ssociated with third party claims and defense costs. The
installed cost of the cap is stimated to be $2 million and the park improvements will cost
$1.1 million. It is much h rder to predict either defense costs or third party liability claims.
However, staff notes th the contaminants present on the property are of concern because
of their odor impacts ther than for their toxicity. Further, there have been no claims in the
past that the City is ware of arising from the presence of these.contaminants at the park .
site. Also, the co aminants will remain in the ground and be covered by the cap, which will .
greatly minimize he possibility of any exposure of the public to these materials. Finally,
conveyance of he park will not occur until the cap is installed and the improvements
constructed.
However, taff points out that the environmental insurance policy will not cover the following
risks:
1. Releases of contaminants or damage to the remediation/monitoring equipment
or to the barrier over the contaminants caused by a deliberate act of a City
employee or an act that was grossly negligent;
RCAPL02-42 1014Fina1.DOC -11- 10/14/2002 3:49 PM
REQUEST FOR COUNCIL ACTION
MEETING DATE: October 21, 2002 DEPARTMENT ID NUMBER: PL02-42
2. Damage to the remediation/monitoring equipment or the barrier without a
release of contaminants to the environment, as would be the case .if the arrier
was damaged by an earthquake; however, t.should be noted that C. remains
obligated to maintain and repair the barrier, if needed, regardless whether
environmental insurance protection is available or not;
3. Obligations for non-environmental matters such as a slip d fall accident or
subsidence problems caused by poorly compacted soil - and
Although there will always be uncertainty associated with poss' le future claims and the
proper limits of insurance policies, staff believes that the pr osed policy would adequately
protect the interests of the City.
Environmental Status:
The subject request is exempt pursuant to Sect' n 15061(b)(3) of the California
Environmental Quality Act because it will not ve any effect on the environment. The
proposed capping of the site and constructi of the park is covered by Environmental
Impact Report No. 90-1,that was approve for construction of improvements in the Holly
Seacliff area.
Attachment(s):
City Clerk's
• . . - Number No. Description
1. icinity Map
2 Environmental Indemnification Agreement
Exhibit A - Legal Description for Promenade Neighborhood Park Site
including exhibits describing Parcel 1, Parcel 2 and the
Easement Area
Exhibit B - List of Remedial Action Plan Reports- Park Area
Exhibit C - List of Environmental Reports— Park Area
Exhibit D - Sample Grant Deed for conveyance of property at the time
remediation is complete.
Exhibit E - Easement Agreement
Exhibit F - Memorandum of Environmental Indemnification Agreement
3. Proposed Closure Plan
4. 1 Proposed Park Design
RCA Author: MBB/HZ/MD/JE
RCAPL02-42 1014Final.DOC -12- 10/14/2002 3:49 PM
ATTACHMENT
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ATTACHMENT #2 '
ENVIRONMENTAL INDEMNIFICATION AGREEMENT
THIS ENVIRONMENTAL INDEMNIFICATION AGREEMENT (the "A eement")is
made as. of October_, 2002 (the "Effective Date")by and between Chevron L d and .
Development"Company, a Delaware corporation.("CL&D"), PLC; a California eneral
partnership ("PLC") and the City of Huntington Beach, a municipal corporati of the State of
California("City").
RECITALS :
A. CL&D, Pacific Coast Homes, Huntington Beach ompany, Mansion Properties,
Inc. and Chevron U.S.A. Inc. entered into a purchase and sale greement dated December 7,
1995 (the "Purchase and Sale Agreement") whereby CL& agreed to sell and PLC and MS
Vickers L.P. agreed to buy certain real property more part' ularly described in the Purchase and
Sale Agreement, which real property included that cert . four(4) acres of real property located
in the City of Huntington Beach, County of Orange, d State of California (the "Property") as
described in Exhibit "A" attached hereto. In accor ance with the Purchase and Sale Agreement,
PLC acquired the Property.
B. The.Property is subject to Dev opment Agreement No. 90-1, recorded
November 14, 1990, as Document No. 90- 9766 in the Official Records of the County of
Orange,California (the "Development reement").
C. The Property contain ertain contamination which is being remediated by CL&D
in accordance with the Purchase a Sale Agreement (and which CL&D contends is non-CL&D
generated contamination). As p of said remediation, CL&D has submitted to City, for its
approval, various documents ' ted on Exhibit "B", attached hereto (collectively,the "Remedial
Action Plan") covering the roperty and contamination located thereon.
D. In accor nce with the Development Agreement, PLC is obligated to dedicate to
City and to improve a our-acre public neighborhood park(the "Park"). City has determined
that the Property is ceptable for dedication and improvement for the Park as provided in this
Agreement, inclu ng without limitation, the indemnification of City by PLC and CL&D as set
forth herein.
E. The intent of this Agreement is that City bear no responsibility or liability for
Environm tal Contamination or Covered Contamination or any other contamination at the
Property other than that caused by any activities of City or that which occurred after conveyance
of the roperty to City and which was not caused by, did not result from or was not associated
with ny activities of CL&D or PLC.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants expressed herein
and other good and valuable consideration, the parties hereto agree as follows:
LA 103482 v2
i
1. Definitions. When used in this Agreement, the following terms shall have the
following meanings:
1.1 Covered Contamination. The term "Covered Contamination" ans
contaminants or other toxic or hazardous substances, materials, constituents o wastes
existing in, on,under, about, migrating from or emitted from the Property ich are
subject to a valid governmental cleanup directive under applicable feder , state or local
laws or regulations and which: (a) were not caused by or associated wi any activities of
City, its agents, contractors, subcontractors and/or vendors and occ ed before
conveyance of the Property to City; or(b) were caused by or ass o ated with any
activities of CL&D, PLC, their agents, contractors, subcontrac rs and/or vendors and
occurred after conveyance of Property to City.
1.2 Environmental Contamination. The to Environmental
Contamination" means the contaminants or other to ' or hazardous substances,
materials, constituents or wastes referenced in the medial Action Plan and which:
(a)'were not caused by or associated with any act' sties of City, its agents, contractors,
subcontractors and/or vendors and occurred bef re conveyance of the Property to City; or
(b) were caused by or associated with any act' ities of CL&D,PLC, their agents,
contractors, subcontractors and/or vendors d occurred after conveyance of Property to
City.
1.3 Environmental Re o The term "Environmental Reports" shall mean
those certain reports which are list on Exhibit "C".to this Agreement.
2. Environmental Remed' tion and Ongoing Monitoring.
2.1 On oin mediation Action Plan. CL&D has almost completed the
remediation of Environ ental Contamination on the Property to the standards contained
in the Remedial Acti Plan. There are currently, and after completion of the
remediation portio of the Remedial Action Plan there will continue to be, monitoring
systems located the Property which will be used to monitor and remediate, as required,
remaining cont 'nation that is located on the Property. Prior to the conveyance of the
Property to ' y in accordance with this Agreement, City shall issue: (a) a closure report
stating that e portion of the Property to be conveyed in fee and the portion of the
Property be conveyed by easement are.in compliance with City specifications for
remedi ion.except for the materials still being addressed in accordance_with the
Rem ial Action Plan; and(b) a letter that the remedial, monitoring and contingency
pla s for the portion of the Property to be conveyed by easement are in place and are
a roved by City.
2.2 Newly-Discovered Contamination. If any contamination, including
without limitation Covered Contamination and/or Environmental Contamination, is
encountered during the construction of the Park improvements,PLC shall provide City
and CL&D with notice of such condition and CL&D shall, consistent with applicable
regulatory requirements, ensure, at its sole cost and expense and subject to the
reasonable, written approval of City, the appropriate handling,remediation and
LA 103482 v2 -2-
disposition of the contamination. However, CL&D shall not be required to obtain
approval of City prior to contesting any governmental order, request and/or regulation in
connection with newly-discovered contamination, regardless of issuing agency, but must
advise City in advance of its intent to do so.
3. Environmental Work.
3.1 Access to the Property. CL&D, its agents, contractors, subcontr t s
and/or vendors shall have reasonable access to the Property and, to the extent onably
necessary, the right to disrupt use of the Property in order to perform investi ory,
remedial and monitoring activities in connection with Environmental Con nation,
Covered Contamination or both on the Property. City, its successors or y occupant of
the Property shall minimize any operations on and/or uses of the Prop that
unreasonably interfere with the aforesaid investigatory, monitoring n remedial
activities until the same are completed. Further, City shall reaso ly cooperate with
CL&D in minimizing the costs that CL&D will incur for the a resaid investigatory,
monitoring and remedial activities. CL&D, its agents, contr tors, subcontractors and/or
vendors shall cooperate with City to minimize interferenc with City's use of the
Property. CL&D, at its sole cost and expense, has previ sly installed, and may in the
future install, monitoring wells or remediation equip nt on the Property to support
CL&D's investigatory, monitoring and remediation ork. CL&D, at its sole cost and
expense, shall also have the right to install and intain separate utilities on the Property
in support of such work.
3.2 Control of Work. C shall diligently pursue any and all investigatory,
monitoring and remedial work ertaken pursuant to this Agreement. Until CL&D's
obligations are satisfied in acc rdance with Section 4.4 of this Agreement, CL&D (acting
by itself or through its nts, contractors, subcontractors and/or vendors) shall have the
sole and exclusive ri t:
(a) to perform investigatory, monitoring and remediation work with
respect Covered Contamination or Environmental Contamination or both as
deem e necessary by CL&D or as legally required by any federal, state or local
regu tory agency; and
(b) subject to the terms.of this Agreement, to,with the reasonable
ooperation and participation of City, communicate and negotiate with federal,
state and local regulatory authorities regarding any environmental investigatory
and remediation work with respect to Covered Contamination or Environmental
Contamination undertaken by CL&D.
3.3 Cost-Efficient Manner. Although the cost of investigation, remediation
and monitoring of covered Contamination and Environmental Contamination is to be
borne by CL&D pursuant to this Agreement, City and CL&D shall reasonably cooperate
in minimizing the costs that CL&D will incur for the aforesaid investigatory, monitoring
and remedial activities.
LA 103482 v2 -3-
4. Dealings with Governmental Agencies.
4.1 Procedures Re arding,Government Directives/ee
or Requests. n the
event City, PLC or CL&D receives from a governmental enttive, orde or a
request to perform any investigation, monitoring and/or remef the Pr erty, or a
notice that such a directive,'order or request will be issued, ting s 11 apply:
(a) The party receiving such directive, ord or notice shallimmediately give notice thereof to the other parties.
(b) Upon notice to CL&D of a directive, ouest or notice froma governmental entity, CL&D shall provide notifica ' y and PLC as to
whether or not CL&D shall assume responsibility or the government directive,
notice, order or request, and CL&D's notificati to City and PLC shall be
provided not later than the earlier of(i) forty ive (45) days after CL&D's receipt
of said directive, order, notice or request, (ii) the date that is fifteen (15) days
prior to the response date stated in the vernment directive, order, notice or
request. If CL&D elects not to assu responsibility for the government
directive, order, notice or request, &D retains the right to subsequently assume
the responsibility for any such di ctive, order, notice or request. If CL&D does
not assume responsibility for t government directive, order, notice or request,
then City shall have the righ o pursue all available remedies, as appropriate.
Notwithstanding the foreg ng timing limitations for CL&D's notification to City
and PLC concerning ass ption:of responsibility for a government directive,
order, request or notic , ould such directive, order, request or notice be received
with less than twent - ' e (25) days to respond to such directive, order, request or
notice,then CL& all notify City of CL&D's decision whether or not to
assume respons' ility within fifteen (15) days of receipt of such directive, order,
request or not e.
(c City, PLC and CL&D shall meet and confer regarding possible
action t at might be taken with respect to any government directive, order,request
or no 'ce.
(d) CL&D shall have the full authority and exclusive right to control
1 negotiations with any and all federal, state and local governmental entities.
Which assert or attempt to assert jurisdiction or other oversight over the
investigation, monitoring and/or remediation of Covered Contamination and
Environmental Contamination. City at it own cost and expense shall have the
right to attend and participate in meetings with such governmental agencies. City
shall reasonably cooperate and participate with CL&D as necessary to support
such negotiations. Each party hereto shall keep the other parties informed as to
any significant contacts with said agencies and shall notify the other parties of any
scheduled meetings with said agencies.
4.2 Responsibility for Contamination. It is understood and agreed by all
parties that City bears no responsibility or liability for Environmental Contamination or
LA 103482 v2 -4-
Covered Contamination or any other contamination at the Property other than t at: (i)
caused by or associated with any activities of City, its agents, contractors, subc ntractors
and/or vendors or (ii) which occurred after conveyance of the Property to City nd which
was not caused by and not associated with any activities of CL&D, PLC, the' agents,
contractors,.subcontractors and/or vendors. CL&D and.PLC each shall un rtake any
and all actions reasonably necessary to effectuate and comply.with the i ent of this
Section 4.2:
4.3 Cooperation. CL&D and City agree to reasonably operate with each
other with respect to any investigatory or remediation actions pe aining to any Covered
Contamination. City agrees to support any reasonable propos of CL&D pertaining to
Covered Contamination that is submitted by CL&D to a gov, rnmental agency. City shall
not seek the issuance of, nor issue on its own behalf, a go rnmental directive_ , order or
request except to the extent necessary to protect the hea and safety of City and the
public. CL&D shall have the right to challenge any vemment directive, order, request
or notice and not assume responsibility therefor if: its challenge is based on a good
faith belief that the directive, order, request or no 'ce is not in conformance with existing
laws,rules regulations and/or ordinances or tha he contamination which is the subject of
the government directive, order, request or n ce does not meet the definition of Covered
Contamination and/or Environmental Cont 'nation, (b) CL&D has satisfied its
obligations under this Agreement, or(c) a contamination which is the subject of the
governmental directive, order, request notice was caused by any activities of City, its
agents, contractors, subcontractors.a or vendors or occurred after conveyance of the
Property to City and was not cause y and was not associated with any activities of
CL&D, PLC, their agents, contra ors, subcontractors and/or vendors. City and PLC
shall reasonably cooperate wit L&D's attempt to comply with any government order.
4.4 Standard for orrective Work. CL&D shall be deemed to have satisfied
its obligations hereunder correct any known Covered Contamination (exclusive of long
term monitoring, maint ance, including without limitation redesign and repair of the
remediation system, d remediation of later discovered Covered Contamination, as
required) when: (i) ity, PLC and CL&D mutually agree in writing or (ii) the lead
environmental ag cy overseeing the remediation acknowledges in writing (by an
authorized and ficial agency action) that no further action for any remedial activity
(exclusive of onitoring and maintenance, including without limitation redesign and
repair of the emediation system, and remediation of later discovered Covered
Contamin ion, if applicable) is required at the time of issuance of such
a- now/ dgement. CL&D shall be responsible for such long term monitoring,
maint ance, including without limitation redesign and repair of the remediation system,
and mediation of any later discovered Covered Contamination as may be required by a
re latory agency.
4.5 Correspondence with Governmental Agencies. Commencing with the
Effective Date of this Agreement, CL&D and PLC each shall send to all the other parties
to this Agreement a copy of all written communications between said party and any
governmental agency with respect to Environmental Contamination, Covered
Contamination or any other contamination on the Property.
LA 0_482 v, -5-
5. Property Use Restrictions, Requirements and Conveyance to City.
5.1 Co-Existence of Monitoring Wells and/or Remediation Equipment with
City's Improvements. City understands that certain monitoring wells ("Monitoring
Wells") and/or remediation equipment ("Remediation.Equipment") (collectively.
"Facilities") are or may be located on the Property at specific locations. CL&D sh
have the right to make relocations of Facilities in the open space areas of the Prop rty at
no cost or expense to City if CL&D shall be required to relocate any portion of e
Facilities pursuant to any order or directive from a governmental agency wit urisdiction
thereof, e.g., the Regional Water Quality Control Board. City and/or PLC ree to grant
to CL&D, at no cost to CL&D, easements, permits or other rights as nec sary to comply
with such order or directive. CL&D shall abandon any monitoring we s in accordance
with all applicable legal requirements and shall quitclaim any ease t held by CL&D
for such abandoned well. If any Monitoring Wells, Remediation uipment, piping or
other structures associated with CL&D's corrective action bein erformed on the
Property becomes damaged, creating a potentially unsafe or isance condition, CL&D
shall immediately so notify City. Responsibility for costs ssociated with the damaged
Monitoring Wells, Remediation Equipment, piping, or er structures associated with
CL&D's corrective action shall be governed by the p ies'indemnity obligations in this
Agreement. CL&D shall fully cooperate with Cit regarding the location, installation,
operation and size of the Monitoring Wells, Re ediation Equipment, piping or other
structures associated with CL&D's correctiv ction being performed on the Property to
minimize interference with.City's use of t roperty. City shall reasonably cooperate
with CL&D to minimize the cost to-CL of any corrective action:
5.2 Construction Due D' izence. Prior to conveyance to City, PLC shall
construct the Park for public use the Property. PLC understands and agrees that it
shall be solely responsible, at i sole cost and expense, for any due diligence surveys of
the Property that may be nec ssary to protect human health or the environment in
connection with its activit' s that involve subsurface excavation or soil disturbance and
shall implement the rec endations of any such surveys in connection with PLC's
activities on the Prop y. PLC understands that such surveys may determine the
presence, nature an character of any Environmental Contamination, Covered
Contamination, er contamination or petroleum impacted soils and groundwater;
provided, how er, nothing set forth in this Section shall relieve CL&D of any of its
obligations der this Agreement. PLC shall also implement such procedures and/or
special in -trial hygiene precautions as may be required to mitigate potential
emerge y, health or safety risks to workers, which may be encountered during
const tion. PLC shall.hold City and CL&D harmless and indemnify City and CL&D
fro and against any and all claims which may arise as a result of PLC's, its agent's,
ve dor's, contractor's and/or subcontractor's failure to take such emergency measures
d precautions as are required by this Section 5.2. PLC shall reimburse City for the
costs of employing an engineering firm to serve as an observer on site during the
construction to monitor the construction activities and observe whether or not there is any
the intrusion into the remedial barrier and/or damage to any Remediation Equipment.
City will require that the engineering firm carry errors and omissions insurance.
LA 103482 v2 -6-
5.3 Schedule for Conveyance of the Property to City. City shall accept
conveyance of the Property within ninety (90) days of the last to occur of the follo ing
events:
(a) City and all regulatory agencies that are actively invo ed in the
remediation of Environmental Contamination as of the Effective to of this
Agreement have indicated in writing that CL&D has satisfied it obligations to
remediate Environmental Contamination in accordance with e Remedial Action
Plan and known Covered Contamination pursuant to Sectio 4.4, both exclusive
of any monitoring and maintenance,including without li tation redesign and
repair of the remediation system.
(b) CL&D has acquired, and CL&D ha named City, PLC and PLC's
affiliates as additional insureds under an Enviro ental Site Liability Policy of
Insurance that is in accord with the requireme s of Section 6.4(d) (the
"Environmental Insurance Policy").
(c) CL&D has satisfied its o igations hereunder to remediate any
known Covered Contamination pursu t to Section 4.4 of this Agreement.
(d) CL&D has satisfie all its insurance obligations pursuant to
Section 6.4 of this Agreement.
(e) City has appr ved in writing a site assessment/audit submitted by
CL&D showing that the p ion of the Property subject to conveyance by grant
deed in accordance wit ection 5.4(a) below meets City specifications.
(f) City s approved, in writing, the Park improvements.
5.4 Grant De d and Easement. The Property shall be conveyed as follows:
(a) That portion of the Property described as Dedication Parcels 1 and
2 in Exhib' "A" shall be conveyed by grant deed in the form of Exhibit
both atta ed hereto.
(b) That portion of the Property described as the Easement Area in
Ex ibit "A"shall be conveyed by an.irrevocable, perpetual and exclusive
e sement in the form of Exhibit "E", both attached hereto. Said easement shall
rovide for the use by City of any clean fill placed over the contamination barrier
that is installed by CL&D so long as there is no physical intrusion into the barrier
by City, City's representatives, or any other party.
(c) A Memorandum of Environmental Indemnification Agreement in
the form of Exhibit 'F" shall be prepared and recorded.
5.5 Further Conveyance by Grant Deed. It is understood and agreed by the
parties that City may at any time in the future (without any limitation in time) require that
the portion of the Property that is subject to the easement described in Section 5.4(b)
LA 103482 v2 -7-
above, or,any parts thereof, be conveyed to City by grant deed(s) without payment any
consideration by and at no cost to City. At the end of the term of the Environm tal
Insurance Policy, City may consider taking fee title to the portion of the Prop y under
easement pursuant to Section 5.4(b). If City later takes fee title to part or a of the
portion of the Property under easement pursuant to Section 5.4(b), the p of the
Property to be taken shall be conveyedby grant-deed in.the form of E ibit "D".
5.6 Conveyance of the Property. City her/inn
wl ges that PLC may
convey some or all of the Property to CL&D and/or tre of its affiliates in
advance of a transfer of the Property to City as provition 5.4 hereinabove. If
such conveyance occurs, it will occur: (i) after City a of the Park in accordance
with Section 5.3(f); and (ii) immediately prior to con the City. City and PLC
agree that CL&D shall have no responsibility to eithe /or PLC concerning the
design, construction, installation and/or fitnessfor usprovements to the Park,
and City upon conveyance of the Property releases L&D from any responsibility
concerning same. The parties hereby acknowled that the Property is not currently a
legal parcel. Accordingly, any such transfer of e Property or any portion thereof by
PLC to CL&D and/or to one or more of its of iates shall require compliance with the
California Subdivision Map Act as a condit' n precedent to any such transfer. Without
limiting City's rights under Sections 5.4 d 5.5, City hereby consents to such transfer
and agrees to process one or more subd' ision maps (in accordance with the requirements
of the California Subdivision Map Ac , and the applicable ordinances of City regulating
the subdivision of land) in order to f cilitate the transfer of the Property from PLC to
CL&D and/or to one or more of it affiliates. In the event that PLC and CL&D agree that
PLC may transfer the Property o legally subdivided portions of the Property to CL&D
and/or to one or more of.its aff' fates in accordance with this Section 5.6, City hereby
agrees to accept the transfer the Property in accordance with the provisions of Section
5.4, and Section 5.5 upon t satisfaction of the conditions for the transfer of the Property
in accordance with the to s of said Sections. Notwithstanding the foregoing, nothing in
this Section 5.6 shall li t and/or release CL&D and/or PLC from any of their
obligations, duties an responsibilities under this Agreement, including without limitation
the indemnity of ions.
5.7 S isfaction of Development Agreement. In the event that the Property is
conveyed to Ci , whether by way of grant deed and/or by way of easement as provided
in Section 5. ereof, and whether such conveyances are made.by PLC or by CL&D
and/or one more of its affiliates, and upon completion and acceptance of the Park
improve . nts, City hereby agrees that PLC shall be deemed to have satisfied its
obligati s under the Development Agreement to improve and dedicate to City a four-
acre p lic neighborhood park.
6. Indemnification and Insurance.
6.1 CL&D and PLC Indemnity Obligations.
(a) CL&D and PLC shall require any of their vendors, contractors or
subcontractors working on the Property and/or in connection with this Agreement
LA 103482 Q -8-
to name City as an additional insured under any insurance policies in which P
and/or CL&D are named as an additional insured(s).
(b) After the Property is conveyed in accordance with Sec ' n 5.4 and
subject to Section.7.of this Agreement, CL&D and PLC shall prote ,_defend,
indemnify and hold harmless City, its officers; elected or appoi d officials,
employees, agents and volunteers from and against any and a claims,damages,
losses,expenses,judgments, demands and defense costs (i luding, without
limitation, costs and fees of litigation (including arbitrat' n) of every nature or
liability of any kind), arising out of, resulting from, o n connection with, directly
or indirectly, the performance of and/or the failure perform the Agreement by
CL&D, PLC and/or any of their employees, age s, vendors, contractors,
subcontractors and/or representatives.
(c) After the Property is conv ed in accordance with Section 5.4 and
subject to Section 7 of this Agreement, L&D and PLC shall protect, defend,
indemnify and hold harmless City, it officers, elected or appointed officials,
employees, agents and volunteers om and against any and all claims, damages,
losses, expenses,judgments, de rids and defense costs (including, without
limitation, costs and fees of lit'--ation (including arbitration) of every nature or
liability of any kind), arisin out of, resulting from, or in connection with, directly
or indirectly, any and all vironmental Contamination and/or Covered
Contamination, in without imitation, all the following:
(i) Any claims by third parties for bodily injury or property
damage ca ed by Covered Contamination and/or Environmental
Contami tion. Third party claims include any claims made by City, its
employ es, contractors, subcontractors, agents, vendors and
repres ntatives, provided that City has in place, and City, its employees,
con actors, subcontractors, agents, vendors and representatives have
co plied with, an adequate health and safety program: (1) to protect
man health and the environment in connection with City's activities on
he Property; (2) specifically addressing the known conditions on the
Property. Neither PLC or CL&D shall have to defend any workers'
compensation related claims; however, such shall not diminish City's
indemnity rights herein.
(ii) Subject to CL&D's right to cure, any reasonable costs and
related expenses incurred by City as a result of CL&D's failure to perform
any investigation, monitoring, mitigation and/or remediation of Covered
Contamination and/or Environmental Contamination which is ordered by
federal, state or local governmental authorities. If City believes CL&D
has failed to perform any cleanup covered by this indemnity, City shall
give CL&D written notice of such failure in accordance with Section 9.3
and CL&D shall have the right to cure such failure in accordance with
Section 9.3; provided, however,that if CL&D decides to appeal or contest
any investigation, monitoring, mitigation and/or remediation order, then
LA 103482 Q -9-
CL&D may delay the commencement of any cure period until thirty 0)
days after the issuance of a final, non-appealable order or directiv to
undertake the investigation, monitoring, mitigation and/or rem iation.
(iii) Any failure of.the remediation, maintenanc and/or
monitoring activities, including without limitation a fail e of the barrier,
undertaken or operated by CL&D, its agents,contrac rs, subcontractors
and/or vendors and any resulting costs and/or dam es.
(iv) Costs and/or damages, except a imited by this Agreement,
caused at any time by CL&D, its agents, co actors, subcontractors
and/or vendors as a result of activities ass iated with Covered
Contamination and/or Environmental C tamination undertaken by
CL&D, its agents, contractors, subco ractors and/or vendors on, under or
around the Property under this Agr ment.
(v) Insurance deduc ' les and/or self-insured retentions.
(vi) Any damage to the remediation system that may result
from the design and/or co truction by PLC, its agents, contractors,
subcontractors and/or v dors of the Park, including without limitation,
the irrigation system.
(d) The forego g indemnity obligations are joint and several
obligations of CLBiD an PLC. The obligation to defend City under this Section
6.1 includes payment City's reasonable attorneys' fees and costs.
(e) C and PLC shall conduct all defenses at their sole cost and
expense. If CL& and/or PLC assert a reservation of rights, a cross complaint, or
an affirmative fense or take other similar action against City, City shall approve
the selection counsel chosen by CL&D and/or PLC.
(f) This indemnity shall apply to all claims and liability regardless of
whether ny insurance policies are applicable. The policy limits do not act as a
limitat' n upon the amount of indemnification to be provided by CL&D and PLC.
6.2 City's Indemnity Obligations. After the Property is conveyed to City in.
accordan a with Section 5.4,'City shall protect, defend, indemnify and hold harmless
CL&D nd PLC from and against all claims, damages, losses, expenses,judgments,
dem ds and defense costs (including, without limitation, costs and fees of litigation
(in ding arbitration) of every nature or liability of any kind) arising out of, resulting
fr m, or in connection with, directly or indirectly, the Property. This indemnification and
efense obligation of City excludes such claims, costs, expenses, losses or liabilities (i)
that result from any negligence, willful misconduct or breach of this Agreement by
CL&D, PLC or any of their agents, vendors, contractors and/or subcontractors, and/or(ii)
that are covered by CL&D's and PLC's indemnification, defense and hold harmless
obligations set forth in this Agreement.
LA 103482 v2 -10-
6.3 Indemnification Procedures. In the event of th/ale
nce of any ev t
which either party asserts is an indemnifiable event under thisent, the p
claiming indemnification shall promptly notify in writing the ying p y. If such
event involves the claim of any third party, the indemnifying ll a in all
expenses with respect to the defense or settlement of such clai r,(a) the indemnified party shall be entitled tate in (but notcontrol) the defense of such claim and to employ counown expense toassist in the handling of such claim (this provisions ogate City's rights
under Section 6.1(e);
(b) the indemnified party shall obt n the prior written-approval of the
indemnifying party before entering into an ettlement of such claim;
(c) the indemnifying party all not permit any lien, encumbrance or
other adverse charge caused by its in emnity obligations to exist upon any asset
of the indemnified party or its sub ' iaries. If the indemnifying party does not
assume sole control over the de f se or settlement of such claim within forty-five
(45) days after receipt of notic as provided in this Section 6:3, the indemnified
party shall have the right to fend and settle the claim in such manner as it may
deem appropriate at the co and expense of the indemnifying party, and the
indemnifying party shall romptly reimburse the indemnified party therefor. The
indemnifying party m subsequently assume the defense of such matters
consistent with the t s of this Agreement; and
(d) th parties to this Agreement shall not object to the tender by the
indemnifying p y of a claim to the insurer under the Environmental Insurance
Policy.
6.4 CL D's and PLC's Insurance Obligations.
CL&D and PLC each acknowledges awareness of Section 3700 et
seq. o the California Labor Code, which requires every employer to be insured
agai st liability for workers' compensation. CL&D and PLC each covenants that
it all comply with such provisions prior to conveyance of the Property to City.
&D and PLC each, and for as long as or during any time that each or any of
eir agents shall be.undertaking work on the Property, shall obtain and furnish to
City workers'compensation and employers' liability insurance in amounts not less
than the State statutory limits. CL&D and PLC each shall require all its vendors
and contractors, including all subcontractors of these vendors and contractors, to
provide such workers' compensation and employers' liability insurance for all the
vendors', contractors' and subcontractors' employees. CL&D and PLC each shall
furnish to City a certificate of waiver of subrogation under the terms of the
workers' compensation and employers' liability insurance and CL&D and PLC
each shall similarly require all its vendors, contractors and subcontractors to
waive subrogation.
LA 103482 Q -11-
(b) In addition to the environmental insurance, workers'compensatio
and employers'liability insurance and CL&D's and PLC's covenant to defend
hold harmless and indemnify City, CL&D and PLC each, and for as long and
during any time each or any of their agents shall be undertaking work o he
Property, shall obtain and furnish to City, a policy of general public 1' ility
insurance, including motor vehicle coverage;;against any and_all c ms arising.
out of or in connection with the Property. This policy shall ind nify CL&D
and/or PLC, respectively, and each of its officers, employees d agents, while
acting within the scope of their duties, against any and all aims arising out of or
in connection with the Property, and shall provide cover a in not less than the
following amount: combined single limit bodily injur and property damage,
including products/completed operations liability a blanket contractual liability,
of One Million Dollars ($1,000,000.00) per occu ence. If coverage is provided
under a form which includes a designated gene 1 aggregate limit, the aggregate
limit must be no less than One Million Doll ($1,000,000.00)for the Property.
The policy shall name City, its officers, el ted or appointed officials, employees,
agents, and volunteers as Additional.Ins reds, and shall specifically provide that
any other insurance coverage which y be applicable to the Property shall be
deemed excess coverage and that C &D's and PLC's insurance shall be primary.
PLC shall be allowed.a self-insur d retention or deductible in the amount of One
Hundred Thousand Dollars ($1 0,000.00)for the insurance coverage identified in
this Section 6.4(b).
(c) Prior to c encement of this Agreement, CL&D and PLC each
shall furnish to City ce ficates of insurance subject to approval of the City
Attorney evidencing a foregoing insurance coverages as required by this
Agreement; these c rtificates shall:
provide the name and policy number of each carrier and
policy
(ii) shall state that the policy is currently in force; and shall
p omise to provide that such policies shall not be.canceled or modified
ithout thirty (30) days'prior written notice to City.
(d) CL&D shall acquire and CL&D shall include City, PLC and PLC's
a Mates as named insureds.under an Environmental.Insurance Policy and that:
(i) is issued by an insurance company mutually acceptable to
the parties;
(ii) is in a form agreed to in writing by City, PLC and CL&D;
(iii) provides coverage for off-site and on-site cleanup of both
pre-existing unknown and new pollution conditions, and third party
liability;
LA 103482 v2 -12-
(iv) provides coverage for CL&D's and PLC's environment
obligations, duties and responsibilities under this Agreement;
(v) provides coverage for remediation costs, third y bodily
injury and third party property.damages that result from an ailure of the
remediation and/or monitoring activities installed by or erated by
CL&D, its agents, contractors,subcontractors and/or ndors, including
without limitation, a failure of the barrier and any r ulting remediation
costs, third party bodily injury and third party pr erty damages. The
Environmental Insurance Policy will not cove improvements owned by
City on the Property.
(vi) provides coverage for a damages to the remediation
system that may result from a pollut' n incident;
(vii) provides covera for any claims, damages or injury
resulting from or associated th Covered Contamination and/or
Environmental Contaminat' n, including without limitation, a pollution
incident caused by.negli nt maintenance of the Property and/or the
barrier by anyone;
(viii) pro des for policy limits of Ten Million Dollars
($10,000,000.00 per incident and Ten Million Dollars ($10,000)000.00)
in the aggrega ;
(ix) is for a term of ten (10) years from the date of conveyance
of the Pr erty to City with CL&D paying the full premium for the term
of the i urance for all coverages in advance. CL&D shall meet with City
ninet (90) days before the end of the term of the Environmental Insurance
Poli y to discuss renewal options and alternatives. If City is able to obtain
a newal of the Environmental Insurance Policy and elects to do so or if
ity obtains environmental insurance from the same or from a different
carrier for the same or different term and the same or different coverages
and conditions and elects to do.so, CL&D shall pay the premium for such
insurance up to Two Hundred Fifty Thousand Dollars ($250,000.00);
(x) provides for deductibles or self-insured retentions of no
more than One Hundred Thousand Dollars ($100,000.00)per incident; and
(xi) promises that such policies shall not be cancelled due to a
failure to pay the premium or modified or cancelled for any other reasons
without thirty (30) days prior written notice to City.
(e) CL&D shall be allowed to meet its insurance obligations, except
for the Environmental Insurance Policy, through the self insurance program that
CL&D participates in.
[a 103482 v, -13-
(f) The requirement for carrying the foregoing insurance coverages
shall not derogate from CL&D's and PLC's defense, hold harmless and
indemnification obligations as set forth in this Agreement. City or its
representatives shall at all times have the right to demand the original or copy of
any or all the policies of insurance.. CL&D and PLC each shall pay, i prompt.
And timely manner,-the premiums on all insurance hereinabove req ed.
7. Limitation of Liability.
7.1 Increased Costs of Remediation. A party in defau of this Agreement.
shall be responsible for any and all increased costs of remediat' n, whether direct or
indirect, related to any default of this Agreement and hereby eleases, defends and
indemnifies the non-defaulting party(ies) for all liability r ated to such default.
7.2 Release of Statutory Claims. Except f any claim which City might have
under this Agreement, City on behalf of its success s and assigns, hereby waives and
releases CL&D and PLC from any and all comm law or statutory-based claims and
causes of action which City might have now o n the future related to Covered
Contamination and/or Environmental Conta nation connected with the Property,
including, but not limited to, actions under a Comprehensive Environmental Response,
Compensation and Liability Act (42 U.S § 9601 et seq.), the Resource Conservation
and Recovery Act of 1976 (42 U.S.C. 6901 et seq.) and any analogous state or local
statutes and the regulations promul ed pursuant thereto. City's rights.and remedies_
against CL&D and PLC and their filiates with respect.to Environmental.Contaminati.on
and Covered Contamination are olely limited to those set forth in this Agreement.
7.3 Other Liabilit Exclusions. CL&D and PLC shall not be responsible for
and CL&D's and PLC's in emnity obligations under Section 6.1 shall not apply to: loss
of business by City, di ution in the value of the Property, or loss of goodwill by City.
8. Environment Reviews and Disclosures.
8.1 En ronmental Reviews. City has the right to enter the Property to
conduct such vis al, surface and subsurface investigations as City, in its sole discretion,
deems desirab Yand necessary to determine the environmental condition of the Property.
CL&D has u.dertaken or caused to be prepared at its sole cost and expense, the
Environme tal Reports listed in Exhibit "B". and Exhibit"C" hereto. City
ack__ ges that it has received copies of and has reviewed such reports. Other
environmental assessments, reviews and studies may have been performed concerning
the Pr6erty and may be available from governmental agencies or are available in the
pub domain.
8.2 Disclosures. City understands and acknowledges that:
/ (a) The Property has been used for many years as an oil production
field and refinery;
LA 103482 v2 -14-
(b) As a result of such use, leakage or seepage of oil, gasoline,
gasoline additives and diesel products occurred on the Property;
(c) The groundwater underlying the Property may have been impac
by gasoline range petroleum.hydrocarbons, which originated from the prior es.
of the Property;
(d) CL&D does not have the requisite information to ful determine
the exact effect of prior uses on, or the present condition of, the P perty;
(e) The Property may contain buried pipelines an other petroleum
product distribution facilities and equipment, the locations f which have not been
determined;
(f) CL&D presently maintains monitori wells on the Property and
operates a thermal oxidizer vapor extraction syste , which is designed to extract
soil vapors from the Property;
(g) Environmental Contaminatio and Covered Contamination at the
Property may present problems in perfo ng construction or excavation work on
the Property and require PLC to take sp ial precautions in order to follow good
safety practices and comply with app ' able federal, state and local laws and
regulations;
(h) Except as docu nted in the Environmental Reports, CL&D does
not know the exact nature oft a environmental condition of the Property or the
exact extent or locations of nvironmental Contamination or Covered
Contamination; and
(i) Nothin in these disclosures in any way limits CL&D's and/or
PLC's obligations, d ies and responsibilities under this Agreement.
9.. General.
9.1 Assur ces. City, PLC and CL&D shall execute such further documents
and instruments, re ested by another party, as maybe necessary or reasonably desirable
to consummate th transactions contemplated by this Agreement or any part thereof.
9.2 ttorney Costs. If a legal action or proceeding that arises out of or relates
to this Agree ent is brought by either party, the prevailing party shall be entitled to
receive fro the other party, in addition to any relief that may be granted, reasonable
attorneys' ees, costs and expenses that are incurred in the action or proceeding by the
prevaili g party.
9.3 Default. Should any party to this Agreement fail to perform a material
obligation of this Agreement, a non-breaching party may notify the breaching party in
w ting in accordance with Section 9.4. Within thirty (30) days of receipt of such notice,
e breaching party shall commence curing such breach and shall diligently pursue such
LA 103482 v2 -15-
cure to completion. If the breaching party does not commence a cure within thirty (30)
days or does not diligently pursue such cure to completion, the breaching party shall be in
default under this Agreement and the non-defaulting parties shall be entitled to pursue
without limit, all remedies available in law and in equity. The remedies given to non-
defaulting parties in this Agreement shall not be exclusive,but shall be cumul a and in
addition to all remedies now or hereinafter allowed by law.
9.4 Notices. All notices required or permitted to be given ereunder shall be
in writing and delivered by facsimile, hand or overnight courier, o ailed in the United
States Mail postage prepaid by certified or registered mail, retu receipt requested, to the
appropriate address (or, if applicable, facsimile number) indi ted below or at such other
place or places as either CL&D, PLC or City may, from ti a to time, respectively,
designate in a written notice given to the others. Notic which are delivered by
facsimile or hand or overnight courier shall be deem received upon delivery or
transmission, as the case may be. Notices which a deposited in the United States Mail
in accordance with the terms of this Section sh a deemed received three (3) days after
the date of mailing thereof. Notwithstanding a foregoing, a copy of any notice sent by
facsimile hereunder also shall be delivered the addressee by hand or overnight courier
or shall be mailed in the United States M
To City: ity of Huntington Beach
2000 Main Street
Huntington Beach, CA 92648
Attention:. City Administrator.
Fax: (714) 536-5233
With a cop to: City of Huntington Beach
2000 Main Street
Huntington Beach, CA 92648
Attention: City Attorney
Fax: (714) 374-1590
T CL&D: Chevron Land and Development Company
3100 South Harbor Blvd., Suite 340
Santa Ana, CA 92704
Attention: Mr. Don Means
Fax: (714)427=1223
To PLC: PLC
19 Corporate Plaza Drive
Newport Beach, CA 92660
Attention: Mr. William D. Holman
Fax: (949) 729-1214
9.5 Attachments Incorporated. All Exhibits hereto are deemed a part of this
Agreement and are incorporated herein and made a part hereof.
LA 103482 v2 -16-
9.6 Entire Agreement. This Agreement, including Exhibits and other writings
referred to herein, constitutes the entire agreement between City, PLC and CL&D with
respect to the subject matter hereof, and supersedes all prior oral or written agreements
commitments or understandings with respect thereto. No amendment or waiver of e
terms of this Agreement shall be binding on the.parties unless in writing and si d by
authorized representatives of the parties hereto. Any-waiver or any breach any term or.
condition of this Agreement shall not operate as a waiver of any other br ch of such
term or condition or of any other term or condition of this Agreement he headings used
in this Agreement are for convenience of reference only and shall t be used to define
the meaning of any provision.
-9.7 Parties in Interest. Except as conferred her ' nothing in this Agreement,
whether express or implied, is intended to confer any ri is or remedies under or by
reason of this Agreement on any persons other than t parties to it and their respective
successors and assigns, nor is anything in this Agre ent intended to relieve or discharge
the obligation or liability of any third person to a party to this Agreement, nor shall any
provision give any third person any right of su ogation or action over and against any
party to this Agreement.
9.8 Severability. If any prov' ion of this Agreement shall be held to be invalid
or unenforceable under present or futu law in whole or in part by any court of any
jurisdiction, such provision shall, as such jurisdiction, be ineffective to the extent of
such invalidity or unenforceability ithout invalidating the remaining provisions of this
Agreement or affecting the valid' y or enforceability of such provisions in any other
jurisdiction. Such invalid or u nforceable provision shall be replaced as to such
jurisdiction by a provision th comes closest to the business objective intended by such
invalid or unenforceable pr ision without being invalid or unenforceable itself.
9.9 Counte rts. This Agreement may be executed in three or more
counterparts and by di erent parties on separate counterparts, all of which shall be
considered one and t same agreement, and each of which shall be deemed an original.
9.10 Co sents. When consent or acceptance is required of any party hereto,
such consent or cceptance shall not be unreasonably withheld, conditioned or delayed
and must be gi en in writing to be enforceable. Further, when City's consent/approval is
required and this Agreement, its consent/approval for one transaction or event shall.not
be deemed be a consent/approval to any other subsequent occurrence of the same or
any other ansaction or event.
.11 Survival. Terms and conditions of this Agreement, which by their sense
and c ntext survive the expiration or termination of this Agreement, shall so survive, and
furt er, shall survive any conveyance of the Property to City and are not merged with any
gr t deed that may be used for said conveyance.
9.12 Assignment. None of the parties to this Agreement shall assign this
Agreement or any of its rights, obligations or duties under this Agreement without the
LA 103482 v2 -17-
express, written consent of all other parties. Any attempted assignment that is in conflict
with this Section 9.11 shall be void and have no effect.
9.13 Time. Time is of the essence of this Agreement and every provision
herein contained.
9.14 Governing Law. This Agreement shall be governed by and constru in
accordance with the laws of the State of California. Venue for any disputes sh be
Orange County, California.
9.15 Effectiveness and Termination. This Agreement shall come effective on
the Effective Date. However, if, all the events described in Sectio .3 have not occurred
within two (2) years of the Effective Date, this Agreement shall rminate and be of no
force and effect unless an extension of the date of terminatio as been agreed to in
writing by all parties.
IN WITNESS WHEREOF, the parties hereto have ex uted this Agreement effective as
of the Effective Date.
CHEVRO LAND AND DEVELOPMENT
COMP Y, a Delaware corporation
Print Name:
Its: (circle one) Chairman/President/Vice
President
By:
Print Name:
Its: (circle one) Secretary/Chief Financial
Officer/Assistant Secretary-Treasurer
LA 103482 v2 -1 g-
PLC, a California general partnership .
By: PLC Holdings,
a California general partnership
Its: General Partner
By: PACLACO, Inc.,
a California co oration
Its: General artner
By:
ame:
Title:
Y:
Name:
Title:
By T/L Huntington Beach,LLC,
a Delaware limited liability company
Its: General Partner
By: Lennar Land Partners II,.
a Florida general partnership
Its: Managing Member
By: Lennar Homes of California, Inc.,
a California corporation
Its: Attorney-in-Fact
By:
Name:
Title:
By:
Name:
Title:
LA 103482 v2 -19-
.j
CITY OF HUNTINGTON BEACH, a Zicipal
corporation of the State of California
By:
Mayor
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney /0-Z
APPROVED AS TO FORM:
Special Counsel, Burke, Wi iams & Sorensen,LLP
INITIATED AND PROVED:
Fire Chief/Info stems Director
INITIATED APPROVED:
Plannin irector
INIT TED AND APPROVED:
LA 103482 v2 -20-
Community Services Director
REVIEWED AND APPROVED:
City Administrator
LA 103482 v2 -21-
HIBIT A (Al to .AO)
EXHIBIT "A-1"
LEGAL DESCRIPTION FOR
PROMENADE NEIGHBORHOOD PARK SITE
ENTIRE SITE
BEING LOT 2 OF TRACT NO. 15531, IN THE CITY OF HUNTINGTON ACH, COUNTY
OF ORANGE, STATE OF CALIFORNIA AS SHOWN ON THE MAP ED IN BOOK 711,
PAGES 26 TO 32 OF MISCELLANEOUS MAPS, RECORDS OF 0 GE COUNTY AND A
PORTION OF PARCEL "I" AS DESCRIBED ON EXHIBIT I HOWN IN EXHIBIT I-1
ATTACHED TO THAT CERTAIN CONDITIONAL CERTIFICA OF COMPLIANCE NO. 96-
4, IN THE CITY OF HUNTINGTON BEACH, CO OF ORANGE, STATE OF.
CALIFORNIA, AS SHOWN ON THE DOCUMENT REC ED FEBRUARY 28, 1996 AS
INSTRUMENT NO. 19960095325 IN THE.OFFICE OF COUNTY RECORDER, MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHERLY CORNER OF AID LOT 2, SAID POINT BEING ON THE
NORTHWESTERLY LINE OF SEAGATE DRIVE (58 FEET WIDE); THENCE
SOUTHWESTERLY ALONG SAID LINE FOLLOWING-COURSES; SOUTH 41005'09"
WEST 96.31 FEET TO THE BE G OF A TANGENT CURVE, CONCAVE
NORTHWESTERLY HAVING A RADIU OF 651.00 FEET; THENCE SOUTHWESTERLY
226.27 FEET ALONG SAID CURVE OUGH A CENTRAL ANGLE OF 19054'51"
THENCE SOUTH 61000'00" T .51.24 FEET; THENCE LEAVING THE
NORTHWESTERLY LINE OF S ATE DRIVE NORTH 30043'04" WEST 304.87 FEET;
THENCE NORTH 41005'09" T 494.00 FEET TO THE SOUTHERLY LINE 'OF
PROMENADE PARKWAY (58 WIDE);THENCE SOUTH 4805451"EAST 317.00 FEET
ALONG SAID SOUTHERLY INE TO THE BEGINNING OF A TANGENT CURVE
CONCAVE WESTERLY HA. G A RADIUS OF 29.00 FEET; THENCE SOUTHERLY 45.55
FEET ALONG SAID THROUGH A CENTRAL ANGLE OF 90000'00" TO THE
NORTHWESTERLY L OF SAID SEAGATE DRIVE; THENCE SOUTH 41005109" WEST
164.98 FEET ALONG S NORTHWESTERLY LINE TO THE POINT OF BEGINNING.
AS SHOWN ON IT`B"ATTACHED HERETO AND MADE A PART THEREOF.
CONTAINS: 174,7 SQ.FT.=4.011 ACRES
Na-33•t7
s
OF CALIF
ALDEN & LEGAL DESCRIP IZON
SSOCIATES FOR PROMENADE NEIGHBORHOOD PARK SITE
ENGINEERS-LAND SURVEYORS-PLANNERSENT SITE
2552*=ROAD;SUCCE B•IRVINE,CA 92614-6236 W.O.No. 1295-396-001 Date 08/26/02
roaol FAX 660-0418 Enpr.B.J.W. Chk. J.W. Sheet 1 of 1
1
. w w
rsrT e �
PROMENADE PARKWAY . o
5 4854 51` E 317.00'
26.00'
LOT 2, TRACT NO, 1533��J v ,tea q
MJy, 71i/26-32. SCALE. 1'=80'
3
Q
oul
•\ O�D 29' 29'
E'�V� �;
Qg' LAND
o �
No. 3347
Exp. 6-W-040���
q
o WE TABLE
LINE LENGTH BEARING .
Ll 96.31' 5 4105DT W
L2 5124' . 5 61'00100' W
L3 31.07'. 5 41*0510T W
M
H CIAWE TABLE
u CtRYE LENGTH RADIUS DELTA -
11,3o:0�¢, W " Cl 45.55' 29A0' 90'DOW
C2 4555' 2900' 90'00'00'
0 22.73' 44.00' 24'3531-
C4 63.74' 48.00' .7G'04'43-
05 64A4' 74A0' 46'2972'
k
DEN & EXHIBIT wBw
SOCIATES SKETCH TO ACCOMPANY LEGAL DESCRIPTION
FOR PROMENADE NEIGHBORHOOD PARK WE
CWM ENGMM-LAND SURVEYORS-PLANNERS ENTIRE 51 TE
__---_ _ __ ._ �.rn ,.,� is o��rs��zF u►n �r.. 1295 396-001
EXHIBIT "A-2"
LEGAL DESCRIPTION FOR
PROMENADE NEIGHBORHOOD TARK SITE
DEDICATION PARCELS 1 &2
BEING LOT 2 OF TRACT NO. 15 53 1, IN THE CITY OF INGTON BEACH, COUNTY
OF ORANGE, STATE OF CALIFORNIA AS SHOWN ON MAP FILED IN BOOK 711,
PAGES 26 TO 32 OF MISCELLANEOUS MAPS,RECO S OF ORANGE COUNTY AND A
PORTION OF'PARCEL "T' AS DESCRIBED 60N. IT I AND SHOWN IN EX IBrr I 1
ATTACHED TO THAT CERTAIN CONDITIONAL CATE OF COMPLIANCE NO. 96-
4, IN THE CITY OF HUNTINGTON BEA COUNTY OF ORANGE, STATE OF
CALIFORNIA, AS SHOWN ON THE DO RECORDED FEBRUARY 28, 1996 AS
INSTRUMENT NO. 19960095325 IN THE O CE OF THE COUNTY RECORDER, MORE
PARTICULARLY DESCRIBED AS FOLLO S:
PARCEL I:
BEGINNING AT THE.SOUTHE CORNER OF SAID LOT 2,SAID POINT BEING ON THE.
NORTHWESTERLY LINE OF AGATE DRIVE (58 FEET WIDE) AND THE BEGINNING
OF A TANGENT CURVE C CAVE WESTERLY HAVING A RADIUS OF 74.00 FEET;
THENCE NORTHERLY 14. FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE
OF 11°10'37'; THENCE N TH 00014'20"EAST 116.13 FEET; THENCE NORTH 45010'34"
WEST 88.44 FEET, CE NORTH 76°18'54" WEST 203.18 FEET; THENCE NORTH.
41005'09"EAST 179.52 EET TO THE SOUTHERLY LINE OF PROMENADE PARKWAY (58
FEET WIDE); THEN SOUTH 48°54'51"EAST 317.00 FEET ALONG SAID SOUTHERLY
LINE TO THE BEG G OF A TANGENT CURVE CONCAVE WESTERLY HAVING A
RADIUS OF 29.0 FEET; THENCE SOUTHERLY 45.55 FEET ALONG SAID CURVE
THROUGH A ANGLE OF 90000'00"TO THE NORTHWESTERLY LINE OF SAID
SEAGATE D THENCE SOUTH 41a05'09" WEST 164.98 FEET ALONG SAID
NORTHWES RLY LINE TO THE POINT OF BEGINNING.
AS SHO ON EXIMTT`S"ATTACHED HERETO AND MADE A PART THEREOF.
CONT S: 42,182 SQ.FT. OR 0.968 ACRES. �s�9
• � aQ �
Edo.334I
* uP 6 3
Q-
��qlF Of C
WSSOCIATES
EN & LEGALDESCRIPTION FOR PROMENADE NEIGHBORHOOD PARK SITE
Cva.ENGINEERS-LAM SURVEYORS PLANNERS DEDICATION PARCELS 1 &2
V.ff„-C o-T,N,,,,,T7 A K.,,1, W.O.No. 1295-396-001 Date 08/26102
r
PARCEL 2
COMMENCING AT THE SOUTHERLY CORNER OF SAID LOT 2, S POINT BEING ON
THE NORTHWESTERLY LINE OF SEAGATE DRIVE (58 F WIDE); THENCE
SOUTHWESTERLY ALONG SAID LINE THE FOLLOWING CO ES; SOUTH 41005'09"
WEST 96.31 FEET TO THE BEGINNING OF A TAN T CURVE, CONCAVE
NORTHWESTERLY HAVING A RADIUS OF 651.00 FEET; HENCE SOUTHWESTERLY
117.38 FEET ALONG SAID CURVE THROUGH A CE ANGLE OF 10019'51" TOE
TRUE POINT OF BEGINNING; THENCE CONTINUIN SOUTHWESTERLY 108.89 FEET
ALONG SAID CURVE THROUGH A CENTRAL AN E -OF 9035'00"; THENCE SOUTH
61000"00" WEST 51.24 FEET; THENCE LEAVING NORTHWESTERLY LINE OF SAID
SEAGATE DRIVE NORTH 30043'04"WEST 304.8 ET;THENCE NORTH 41005'09"EAST
160.55 FEET; THENCE SOUTH 00011'01" EAS 186.58 FEET; THENCE SOUTH 58058'07"
EAST 215.69 FEET TO THE TRUE POINT ' BEGINNING, A RADIAL LINE TO SAID
POINT BEARS SOUTH 38035'00"EAST.
AS SHOWN ON EXHIBIT`B"ATTAC HERETO AND MADE A PART THEREOF,
CONTAINS:34,478 SQ.FT.=0.792
A sG�
CL
IBo. 3347 a
J, Exp. 6-30-04
F.
WrEN & LEGAL DESCRIPTION
OCIATES FOR PROMENADE NEIGHBORHOOD PARK SITE
DEDICATION PARCELS 1 &2
ZIENGM
ERS-LAND SURVEYORS-PLANNERS urr) la„ »os-zg6-nnl 1,-3tP05Zi7Am*
r r
PROMENADE PARKWAY o
5 48 54'51' E 317.00'
jl nil
CJ
1
PARCEL 1LOT 2, TRAGT NO. 15331�
O.g68 ACRE5 M.M. 711/26 32. p`� SCALE: 1'=80'
a;
5 457034•E " A
88.44' s Q
0' ( � POINT OF
0 51��� BEGINNING
PARCEL 1
POINT OF
W 6pp5�8 —� COMMENCEMENT
S= 29' 29' PARCEL 2
ate-, � q(c Og. 58.
o �G����,�• hi. LAND
lyq�oli�,�
�
No. 3347
OLo
�f, n TRUE POINT
5 38�500� E a OF BEGINNING
PARCEL 2
N •5S'OT
W 215 6q �
r,
°< LINE TABLE
N LINE LENGTH ING
BEAR
PARCEL 2 " 9. u JG.31' 5 41D5�P w
0.7% ACRE5 �N L2 5124' 5 rwoov o, w
N 3,o?Jt24. " CLRVE TABLE
JO¢�,, �ti MELENGci M' RAD A DfLqo Tnow
C2 117.38' G51A0' 1074'51'
63 108.89' G51.00' 435'00`
Fy
CC4 14.44' 74.00' MQ17"
wss
L'1`I & EX 181 1TrTr
OCUTES SKETCH TO ACCOMPANY LEGAL DE5GRIPTION
FOR PROMENADE NEIGHBORHOOD PARK SITE
CfVU,ENGINEER$-LAND SURVEYORS-PLANNERS DEDICATION PARCELS 1 AND 2
n«,Rn� 47TM'P R% RViNE.rA 9261"236 w 0 Nn 1245-34G--001 nest,, 0812G/02
EXHIBIT "A-3"
LEGAL DESCRIPTION FOR .
PROMENADE NEIGHBORHOOD PARK'SIT
EASEMENT AREA
BEING A PORTION OF PARCEL "I" AS DESCRIBED EXHIBIT I AND SHOWN IN
EXHIBIT I-1 ATTACHED TO THAT CERTAIN NDITIONAL CERTIFICATE. OF
COMPLIANCE NO. 96-4, IN THE CITY OF HUNTIN ON BEACH, COUNTY OF ORANGE,
STATE OF CALIFORNIA, AS SHOWN ON THE D NT RECORDED FEBRUARY 28,
1996 AS INSTRUMENT NO. 19960095325 IN OFFICE OF THE COUNTY RECORDER,
MORE PARTICULARLY DESCRIBED AS FOL WS:
BEGINNING AT THE SOUTHERLY CO OF LOT 2 OF TRACT NO. 15531, AS SHOWN
ON THE MAP FILED IN BOOK 711, P GES 26 TO 32 OF. MISCELLANEOUS MAPS,
RECORDS OF ORANGE COUNTY, S POINT BEING ON THE NORTHWESTERLY LINE
OF SEAGATE DRIVE (58 FEET WID ; THENCE SOUTHWESTERLY ALONG SAID LINE
THE FOLLOWING COURSES; SO H 41005'09" WEST 96.31 FEET TO THE BEGINNING
OF A TANGENT CURVE, CONC 3 NORTHWESTERLY HAVING A RADIUS OF-651.00
FEET; THENCE.SOUTHWESTE Y` 117.38 FEET 'ALONG SAID CURVE THROUGH.A
CENTRAL ANGLE OF 10019' 1", A RADIAL LINE TO SAID POINT BEARS SOUTH
38035'00" EAST; THENCE L AVING THE NORTHWESTERLY LINE OF SEAGATE DRIVE
NORTH 58058'07" WEST 5.69 .FEET; THENCE NORTH 00°11'01" WEST 186.58 FEET;
THENCE NORTH 41°05'0 ' EAST 124.93 FEET; THENCE SOUTH 76°18'54" EAST 203.18
FEET;THENCE SOUTH 5°10'34"EAST'88.44;THENCE SOUTH 00014'20"WEST 116.13 TO
A NON-TANGENT VE CONCAVE NORTHWESTERLY HAVING A RADIUS OF 74.00
FEET, A RADIAL TO SAID POINT BEARS SOUTH 60005'28" EAST; THENCE
SOUTHWESTERLY 4.44 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF
11°10'3 7"TO THE OINT OF BEGINNING.
AS SHOWN ON XBIBIT"B"ATTACHED HERETO AND MADE A PART THEREOF.
CONTAINS: 9 ,065 SQ.FT.=2.251 ACRES.
t ,yA s
� o
a
Vo. 3Y7
Ex . 6-30-04
sl �
vwss
EN &E TES LEGAL DESCRIPTION
FOR PROMENADE NEIGHBORHOOD PARK SITE
Ccvu,ENGMEERS-LAND SURVEYORS-PLANNERS EASEMENT AREA
7
PROMENADE PARKWAYto Zr
cc
Zr
7 'q
5 485451' E 317.00'
Cj
LOT 2. TRACT NO. 15331 > 500ALE:
MB. 711/2G-32. A
54510'34• E
88.44' s I
SO 'Q
POINT OF
BEGINNING
4, AREA 5 6p�p528
5EMENT R
FA
tar- 2.251 AGRE5 —pq, 29' .
OqD
ONa� LAND
z 40�ppAh - o� low
Lr) No. 3347 \
sf9l Exp. 6-30-040��
Ul
8
N
LNE TABLE
LINE LENGTH BEARING
v N Ll .9G.31' 5 41'05VT W
CV 12 5124' 5 Gl'00'OO' W
N 304CUM TABLE -
3 b4• v CL12VE I LENGTH RADIUS DELTA
� Gl 4555' m0' 901D0%)0'
02 117Z8' G51A0' 107951'
03 108.89' G51DO, 9351D0'
G4 14.44 74A0' 1 117037'
Wss
EN & EXHIBIT 713
OCIA.TES SKETCH TO ACCOMPANY LEGAL DE50RIPTION
FOR PROMENADE NEIGHBORHOOD PARK 51TE
CIVIL,ENG2IEERS-LAND SURVEYORS-PLANNERS
EASEMENT AREA
. . _ ... - .. TocF..aar_ not n_a_ mna/m
EXHIBIT B
EX111BTT B
REMEDIAL ACTION PLAN REPORTS
Sound Epic. June. 1996.Holly Property Soil Remo I Action Project,
Huntington Beach, California, Final Report
IT Corporation. August 1996. Soil Vapor Er action Pilot Test Report, Holly
Seacliff Project, 7201 Garfield Avenue untington Beach, California.
Radian Corporation. December 1997. suits of Petroleum Hydrocarbon
Surface Emission Flux Sampling the Chevron Holly-SeacliffProperty.
Chem Risk. July 9, 1998.Risk Ev on of Cove and Holmby Park.
Remediation and Closure Str tegy.
IT Corporation. November 20 . Soil Sampling Report— The Park Area,
Holly Seacliff Che n Environmental Management Co..
IT Corporation. March 20 . Shut-down Test Report— The Promenade
Neighborhood Park, X A. Holmby Park, Holly SeacliffProject.
Shaw Environmental, c.. May 2002.PB16 Vapor Sampling Test Report—
Chevron Holly Se cliff Project.
Shaw Environment ; Inc.. June 200.2.Post-hole Emission Testing Report-
Chevron Holl Seacliff Project:
Shaw Environ ntal, Inc.. October 2002. Construction Drawings for
Promenad ark Cap, A.K.A. Holmby Park, Holly Seacliff Project.
LA#102854 v1 B_1
EXHIBIT C
EXHIBIT C
ENVIRONMENTAL REPORTS
Chevron Holly Seacliff Site
Environmental Reports --Park Area
Blasland, Bouck&Lee, Inc.. January 1994.Phase Shallow Soils
Investigation—Holmby Place, the Cove, and ortside Residential
Development Areas, Huntington Beach, C ifornia.
Blasland, Bouck&Lee, Inc.. January 1996 ead and Barium Impacted Soil
Removal from Promenade Parkway Cut, Holmby Place Residential
Development, Huntington Beach, lifornia.
Blasland, Bouck&Lee, Inc.. June 96.Parksite Area Soil Investigation—
Holmby Place Residential De lopment, Huntington Beach, California.
Blasland, Bouck&Lee, Inc.. ay 1995.Remediation ofMercaptan and
Thiophene Containing So' at Pacific Coast Homes, Huntington Beach,
California.
Chem Risk. April 1994. nalytical Results for Soil Sampling to Evaluate
Odors at the.Pad Coast Homes Development Site in Huntington Beach,
California.
Chem Risk. July 9, 998.Risk Evaluation of Cove and Holmby Park.
Remediation Closure Strategy.
Fluor Daniel, I, Inc. August 1997.Holly Seacliff Project-Site Assessment
Report, 7 1 Garfield Avenue, Huntington Beach, California.
IT Corpora 'on. April 1999, Summary Report: Chevron Land and
Devel ment Co., Holly Seacliff Site,Park Area.
IT Corp ration. August 1996. Soil Vapor Extraction Pilot Test Report,Holly
Se fi ff Project, 7201 Garfield Avenue, Huntington Beach, California.
IT C rporation. July 1999.Performance Criteria for Closure of Ho1mby Park
rea of the Holly Seacliff Site, Chevron Land and Development Co..
I Corporation. March 2002. Shut-down Test Report- The Promenade
Neighborhood Park, AX A. Holmby Park, Holly Seacliff Project.
IT Corporation. November 2000. Soil Sampling Report— The Park Area,
Holly Seacliff Site, Chevron Environmental Management Co..
Pacific Coast Homes. August 1991.Phase III Site Assessment(Contaminant
Delineation) —Holly Property.
Pacific Coast Homes. July 1990. Phase II Site Assessment—Holly Property.
Pacific Coast Homes. September 1989.Phase I Site Assessment—Holly
Seacliff Property.
IA#102855 v l C-1
Pacific Coast Homes. September 1992. Holly Remediation Rep t, Lead and
Arsenic Contaminated Soil Excavation and Removal.
Radian Corporation. December.1997. Results of Petrol m Hydrocarbon
Surface Emission Flux Sampling at.the Chevron olly.-Seaclff
Property:
Radian Corporation. November 1994. Health Ba d Cleanup and Exposure
Levels for Soil, Holly Site, Huntington Be , California.
Radian Corporation. November 1994. Hea Based Cleanup and Exposure
Levels for Air, Holly Site, Huntingto each, California.
Shaw Environmental, Inc.. June 200 Post hole Emission Testing Report-
Chevron Holly Seacliff Project
Shaw Environmental, Inc.. May 002. PB16 Vapor Sampling Test Report—
Chevron Holly Seacliff Pr sect.
Smith Environmental Tec ologies Corporation. June 1995. Vapor Extraction
Test—Holly Property Gothard Grading Field, Huntington Beach,
California.
Sound Epic. June 19 Holly Property Soil Removal Action Project,
Huntington Be h, California, Final Report.
LA#102855 vl C-2
EXHIBIT D
EXIT D
GRANT DEED
LA#102859 0 D-1
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City Clerk
CTI'Y OF HUNTINGTON BEACH
2000 Main Street
Huntington Beach, CA 92648
Exempt Recording Per Government
Code Sections 6103 and 27383
Space Above This Line For Recorder's Use
G T DEED
A.P. NO.:
THE UNDERSIGNED GRANTOR DECLARE THAT THE CITY OF HUNTINGTON BEACH IS ACQUIRING TITLE
AND IS EXEMPT FROM DOCUMENT AR TRANSFER TAX PURSUANT TO REVENUE & TAXATION CODE
SECTION 11922
FOR VALUABLE CONSIDERATION, receipt of which is hereby
acknowledged ("Grantor"), hereby grants to the
CITY OF HUNTINGTON EACH, a municipal corporation of the State of California
("Grantee"), all that certain eal property located in the City of Huntington Beach, County of
Orange, State of Californi described in Exhibit "A" attached hereto and incorporated herein by
this reference (the "Prope ") for the purpose of using the Property for public recreation
purposes, including, w thout limitation, as a public park, and maintaining thereon all
facilities and improve ents necessary for such purposes.
$ NATURES APPEAR ON THE FOLLOWING PAGE.
LA#102859 v3 D-2
IN WITNESS WHEREOF, the undersigned has executed this Deed on this
day.of 200, to be effective upon its recordation in the fficiah Records of the
County:of Orange, California.
GRANTOR:
By:
By:
LA#102859 A D-3
DEED CERTIFICATION
CITY OF HUNTINGTON BEACH
This is to certify that the interest in real property conveyed by the Grant eed dated
from a Cal' rnia general
partnership to the CITY OF HUNTINGTON BEACH is hereby ccepted by the
undersigned officer or agent on behalf of the City Council of th ity of Huntington
Beach pursuant to authority conferred by Resolution No. 3537 o e City Council of the
City of Huntington Beach adopted on August 7, 1972, and a grantee consents to the
recordation thereof by its duly authorized officer.
Dated:
CITY OF HUNTINGTON BEACH
CONNIE BROCKWAY, CMC
CITY CLERK
By:
Deputy City Clerk
LA#102859 v3 D4
STATE OF CALIFORNIA )
)SS.
COUNTY OF )
On this day of 2 before me, the
undersigned, a Notary Public in and for said Stat personally appeared
personall own to me or proved to
me on the basis of satisfactory evidence to be the pe on(s) whose name(s) is/are
subscribed to the within instrument and acknowledged me that he/she/they executed
the same in his/her/their authorized capacity(ies), an hat by his/her/their signatures(s)
on the instrument the person(s), or the entity upon ehalf of which the person(s) acted,
executed the instrument.
IN WITNESS WHEREOF, I have he unto set my hand and affixed my official
seal the day and year in this certificate first ove written.
Notary Public in and for said State
STATE OF
COUNTY OF )SS.
On:this day of , 200 , before me, the
undersigned, a /Ota
ry Public in and for said State, personally appeared
personally known to me or proved to me on the
basis of satisfa ory evidence to be the person(s) whose name(s) is/are subscribed to the
within instru ent and acknowledged to me that helshe/they ..executed the same in
his/her/their uthorized capacity(ies), and that by his/her/their signatures(s) on the
instrument a person(s), or the entity upon behalf of which the person(s) acted, executed
the instru nt.
WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal th day and year in this certificate first above written.
ILA
otary Public in and for said State
#102859 v3 D-5
EXHIBIT"A" TO GRANT DEED
Legal Description of Property
[TO BE INSERTED PRIOR TO RECO ING]
LA#102859 v3 D-6
EXHIBIT E
EXHIBIT E
EASEMENT AGREEME
LA#102856 v3 E-1
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City Clerk
CITY.OF HUNTINGTON BEACH
2000 Main.Street .. .
Huntington Beach, CA 92648
Exempt Recording Per Government
Code Sections 6103 and 27383
Space Above This a For Recorder's Use
EASEMENT AGREE
This Easement Agreement(the"Agreement") i ntered into as of
200, by and between (the "Grantor"), and the
CITY OF HUNTINGTON BEAC/atta
corporation of the State of California (the
"Grantee"), who agree as follows:
1. Recitals. This Agreemeith reference to the following facts and
circumstances:
(a) The Grantor is thrtain real property situated .in` the City of
Huntington Beach, County of nia. (the "Easement Property"),. and more
particularly described on Exhibitto this Agreement and incorporated by this
reference.
(b) The Easement roperty is subject to Development Agreement No. 90-1, recorded
November 14, 1990, as D ment No. 90-599766 in the Official Records of Orange County,
California(the"Develop nt"Agreement").
(c) Pursu to the Development Agreement,the Grantor is obligated to dedicate the
Easement Property to he Grantee and to improve it,together with certain other property, as a
neighborhood park.
(d) T e Grantee has determined that the Easement Property should be conveyed to
the Grantee t ough the grant of an easement, and the Grantor, for good and valuable
consideration, the receipt and sufficiency of which is acknowledged, has agreed to and is
willing to ant that easement to the Grantee, all as more particularly set forth in this
Agreement
2. ant of Easement. The Grantor grants to the Grantee, for the benefit of the Grantee and
its su/Zle
essors, assigns, licensees, permittees and invitees, an irrevocable, perpetual and
y
easement in, over, upon, and across the Easement Property for the purpose of using
sement Property for public recreation purposes, including, without limitation, as a public
nd maintaining thereon all facilities and improvements necessary for such purposes. The
ent granted in this Section 2 is in gross.
LA#102856 v3 E-2
3. Limitations on Grant. The Grantee acknowledges the terms and provisions of the
Environmental Indemnification Agreement (the "Environmental Agreement"), dated as f
, 2002, by and between PLC, a California General partnership and C on
Land and Development Company ("CL&D") and ' acknowledges that pursuan to the
Environmental Agreement certain investigatory, remedial and monitoring activi ' s will be
ongoing concerning the environmental. condition of the Easement Property all as more
particularly .described in the Environmental Agreement. The Grantee under ands and agrees
that the easement granted under this Agreement and the Grantee's rights ith respect to that
easement are subject to the terms and provisions of the Environmental A eement.
4. Additional Rights. Subject to the provisions of Section 3, a easement granted in this
Agreement includes the grant of all rights incidental or reasona y necessary to the Grantee's
complete use and enjoyment of the easement, including, with t limitation: the right of access,
ingress and egress to and from the Easement Property; the ri t to alter or modify the Easement
Property; the right to penetrate the surface of the Easem t Property and to make excavations
and fills and to change the grade of the Easement Pro erty, including, without limitation, the
right of the Grantee to use any clean fill placed over a contamination barrier that is installed
by CL&D (as defined in Section 3 of this Agreem t) so long as there is no physical intrusion
into the barrier by Grantee, Grantee's representat' es or any other party, and the right to install,
construct and reconstruct on the Easement Pro , and the right to remove from the Easement
Property all such improvements, fixtures,- a ipment and other property as the Grantee from
time to time deems appropriate in its sole d' cretion.
5.. Other Provisions. This Agr ment is to be construed and enforced in accordance
with the internal laws of the State of alifornia, without regard to principles of conflicts of law.
Venue for any disputes regarding t is Agreement shall be Orange County, California. No term
or provision of this Agreement ca be amended or waived orally or by a course of conduct, but
only by an instrument in writin executed by the duly authorized representatives of the parties.
This Agreement is binding up n and inures to the benefit of the successors and assigns of the
parties.
The parties have a ecuted this Agreement as of the date first set forth above.
CITY OF HUNTINGTON BEACH,
a municipal corporation of the State of
California
By: By:
Mayor
By: ATTEST:
City Clerk
LA#102856 Q E-3
CERTIFICATE OF ACCEPTANCE
This is to certify that the interest in real property conveyed by the Easemen greement, dated
as of j 200� by to the City of
Huntington Beach, a municipal corporation, is hereby accepted by t undersigned officer on
behalf of.the .City of Huntington Beach pursuant .to. authority c erred by Resolution No.
of the City of Huntington Beach, adopted by the rty Council of.'said.City on
and the,grantee consents to th recordation thereof by its duly
authorized officer.
Dated: 3200— CITY HUNTINGTON BEACH
y
City Clerk
LA#102856 0 E-4
STATE OF CALIFORNIA )
)SS.
COUNTY OF )
On this day of. 200_, before m , the undersigned, a
Notary Public in and for said State, personally appeared
., personally kno to me or proved to me on
the basis of satisfactory evidence to be the person(s)whose name is/are subscribed to the
within instrument and acknowledged to me that he/she/they ex uted the same in his/her/their
authorized capacity(ies), and that by his/her/their signatures on the instrument the person(s),
or the entity upon behalf of which the person(s)acted, exe ted the instrument.
IN WITNESS WHEREOF, I have hereunto se y hand and affixed my official seal the
day and year in this certificate first above written.
Notary Public in and for said State
STATE OF CALIFORNIA )
)SS.
COUNTY OF
On this d of 200, before me, the undersigned, a
Notary Public in and r said State, personally appeared
personally known to me or proved to me on
the basis of satisfa ory evidence to be the person(s)whose name(s) is/are subscribed to the
within instrumen and acknowledged to me that he/she/they executed the same in his/her/their
authorized cap ity(ies),and that by his/her/their signatures(s)on the instrument the person(s),
or the entity u on behalf of which the person(s)acted, executed the instrument.
IN SS WHEREOF, I have hereunto set my hand and affixed my official seal the.
day and y in this certificate first above written.
Not Public in and for said State
LA#102856 0 E-5
STATE OF CALIFORNIA )
)SS.
COUNTY OF )
On this day of , 200� before me, a undersigned, a
Notary Public in and for said State;.personally appeared•
personally kno o me or proved to me on
the basis of satisfactory evidence to be the person(s)whose name(s are subscribed to the
within instrument and acknowledged to me that he/she/they exe ed the same in his/her/their
authorized capacity(ies), and that by his/her/their signatures(s n the instrument the person(s),
or the entity upon behalf of which the person(s)acted, exec ed the instrument.
IN WITNESS WHEREOF, I have hereunto set y hand and affixed my official seal the
day and year in this certificate first above written.
Notary Public in and for said State
STATE OF CALIFORNIA )
)SS.
COUNTY OF
On this ay of , 200, before me, the undersigned, a
Notary Public in an for said State,personally appeared
personally known to me or proved-to me on
the basis of nateisf�ctory evidence to be the person(s)whose name(s) is/are subscribed to the
within instr t and acknowledged to me that he/she/they executed the same in his/her/their
authorized cap city(ies), and that by his/her/their signatures(s)on the instrument the person(s),
or the'entity. on behalf of which the person(s)acted, executed the instrument.
IN SS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and y in this certificate first above written.
7No Public in and for said State
LA#102856 v3 E-6
EXHIBIT"A"
Legal Description of Easement Property
[TO BE INSERTED PRIOR TO RECORD ]
1 A#102856 v3 E_7
EXHIBIT F
EXHIBIT
MEMORANDUM OF ENVIRONMENTAL INDEMN ATION AGREEMENT
LA#102958 va F-1
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City Clerk
CITY OF HUNTINGTON BEACH
2000 Main Street
Huntington Beach,CA 92648
Exempt Recording Per Government
Code Sections 6103 and 27383
ZONMENTAL
ve This Line For Recorder's Use
MEMORANDUM OF
INDEMN]IFICAT16N AGREEMENT
THIS MEMORANDUM F ENVIRONMENTAL INDEMNIFICATION
AGREEMENT (the "Memorandum") s made as of , 200_ by and
between. CHEVRON LAND AND EVELOPIVIENT COMPANY, .a..Delaware corporation
("CL&D"),PLC, a California gener partnership, and the CITY OF HUNTINGTON BEACH, a
municipal corporation of the State f California("City").
1. CL&D, PLC nd City have entered into that certain Environmental
Indemnification Agreement d ed as of , 2002 (the "Agreement") pursuant to
which, among other things, _ has agreed to convey to City fee title to certain real property
which. is described in the Agreement, and _ has also agreed to grant City an easement
respecting the real prope located in the City of Huntington Beach, County of Orange, State of
California, described in xhibit "A" attached hereto and incorporated herein by this reference
(the real property desc ' ed on Exhibit "A" being referred to herein as the "Easement Property"),
all as more particularl provided in the Agreement.
2. The Agreement further provides that City may at any time require that.the
Easement Propert or any parts thereof,.be.conveyed to City by grant deed(s) without payment
of any consider a on by and at no cost to City.
3. he purpose of this Memorandum is to give notice of the existence of the
Agreement a of the rights of City referred to in paragraph 2 above. To the extent that any
provision of his Memorandum conflicts with any provision of the Agreement, the Agreement.
shall contro .
4. This Memorandum may be executed in counterparts, each of which shall be
deemed original, but all of which, together shall constitute one and the same instrument.
LA#102 8 v4 F-2
lb
The parties have executed this Memorandum as of the date first set forth abov H .
PLC, CITY OF HUNTING BEACH,
a.California general partnership a municipal corpor on.of the State
of California
By: By:
Mayo
By: TTEST:
City Clerk
CHEVRON LAND AND
DEVELOPMENT COMPANY,
a Delaware corporation
By:
(Print Name)
ITS:(circle one) Cha' man/President/
Vice President
By:
/102858v4
Name)
ITe) Secretary, Chief Financial
Oant Secretary
LA F-3
STATE OF CALIFORNIA )
)SS.
COUNTY OF )
On this. : day of .200� before me, the
undersigned, a Notary Public in and for said State, personally appeared
, personally known to or proved to
me on the basis of satisfactory evidence to be the person(s)whose name is/are
subscribed to the within instrument and acknowledged to me that he/s /they executed
the same in his/her/their authorized capacity(ies), and that by his/h their signatures(s)
on the instrument the person(s), or the entity upon behalf of whi the person(s) acted,
executed the instrument.
IN WITNESS WHEREOF, I have hereunto set y hand and affixed my official
seal the day and year in this certificate first above tten.
Notary Public in and for said State
STATE OF CALIFORNIA )
)SS.
COUNTY OF
On this d of 200__, before me, the
undersigned, a Not Public in and for said State, personally appeared
personally known to me or proved to
me on the basis of atisfactory evidence to be the person(s) whose name(s) is/are
subscribed to th thin.instrument and acknowledged to me that he/she/they executed
the same in his er/their authorized capacity(ies), and that by his/her/their signatures(s)
on the instru nt the person(s), or the entity upon behalf of which the person(s) acted,
executed the nstrument.
IN TNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the ay and year in this certificate first above written.
N ary Public in and for said State
LA 102858 va F-4
STATE OF CALIFORNIA )
)SS.
COUNTY OF )
On this day of 200_, before me, e
undersigned, a Notary Public in and for said State, personally appeared
personally kno to me or proved to
me on the basis of satisfactory evidence to be the person(s) who names) is/are
subscribed to the within instrument and acknowledged to me at he/she/they executed
the same in his/her/their authorized capacity(ies), and tha y his/her/their signatures(s)
on the instrument the person(s), or the entity upon beh of which the person(s) acted,
executed the instrument.
IN WITNESS WHEREOF, I have her nto set my hand and affixed my official
seal the day and year in this certificate firs ove written.
Notary Public in and for said S to
STATE OF CALIFO A )
)SS.
COUNTY OF
On thi day of , 200� before me, the
undersigned, Notary Public in and for said State, personally appeared
personally known to me or proved to
/ee
asis of satisfactory evidence to be the person(s)whose name(s) is/are
to the within instrument and acknowledged to me that he/she/they executed
his/her/their authorized capacity(ies), and that by his/her/their signatures(s)
ument the person(s), or the entity upon behalf of which the person(s) acted,
e instrument.
WITNESS WHEREOF, I have hereunto set my hand and affixed my official
and year in this certificate first above written.
Notary Public in and for said State
LA#102858 va F-5
EXIT"A"
Legal Description of Easement Property
[TO BE INSERTED PRIOR TO RECORD ]
LA#102858 A F-6
ATTACHMENT #3 ' ,
SUMMARY OF PARK AREA CLOSURE PLAN
9/13101
The attached figure illustrates the primary elements of the closur plan for the Holmby Park
Area of the Holly Seacliff site. After the existing soil vapor extra Ion system is shut down, the
surface equipment will be removed and the vapor wells seale with a cement/bentonite slurry.
The surface soils in the wellfield area will then be gr ed to prepare the site for cap
construction. The following paragraphs describe each el e ent of the cap design.
Engineered Clean Fill
A minimum of two feet of engineered clean fill II be installed as the uppermost layer of the
cap. It will provide cover and protection for a vapor barrier below, and will also provide a
stable surface for the park facilities to be in lied above it: Additional thicknesses of soil may
be required by the park designers for stru ural footings or to manage surface drainage. The
majority of park facilities above the cap ould be constructed with a hard surface to reduce
infiltration and prevent erosion. Trees . ptenetrating roots would not be planted, although a
limited amount of shallow-rooted gras and shrubs would be allowed.
Barrier Laver
This layer will be installed at a base of the clean fill to function as a barrier or warning to
workers to prevent inadvert t digging and intrusion Into the underlying layers. It may also .
impede burrowing animals nd the downward growth of roots. It will be constructed of either a
highly visible geogrid mat 'al to gain the attention of workers, or of cobbles and coarse gravel.
It may also include a filte fabric to prevent the migration of fine particles of soil from above. The
thickness of this layer ould be one foot or less.
Drainage Laver
A sloping draina layer will be placed upon the impermeable liner to prevent infiltrating water
from collecting n top of the liner. The water will be directed by a collection system to an
appropriate di harge point, such as the storm drain beneath Seagate Drive. This layer will.be
constructed either a.geocomposife material or a coarse sand to a thickness of less than one
foot. It will a designed to convey the anticipated maximum volume of infiltrating water.
Im erme le Liner
y
cipal function of the liner is to prevent the upward migration of,soil vapor from the
contamination beneath the cap. Because of its impermeable nature, the liner will also
he downward infiltration of water from the surface. The liner will likely be constructed
ensity polyethylene (HDPE), and will be sloped to facilitate flow in the drainage layer
ollection Laver
por collection layer will be installed on top of the existing soils, immediately below the
liner. It will have a thickness of approximately one foot. Soil vapor that may migrate upward
from these soils will collect beneath the impermeable liner in this layer, which will be constructed
of coarse sand or gravel. Subsurface piping will be installed and routed to a treatment area
where it may be connected to a blower and carbon tre/installed
ter. T equipment would
draw off and capture contaminants that may be present
Monitoring points
Soil vapor monitoring would be conducted from vapor lled around the perimeter of
the cap (outside the contaminated area) and within theer of the cap itself. Probes
would not be installed through the liner to preserveitse purpose of these probes
would be to monitor the soil vapor for the unlikely gration of contaminants. The perimeter
probes would be installed to the equivalent de of both the vapor collection layer and the
residual contamination. Additional monitoring w d be conducted from the subsurface piping in
the vapor collection layer and from vapor treat ent equipment that may be installed.
i
i
Area Closure Plan
Perimeter vapor prob
(various depths) Shallow vapor probes
/ Vent
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h ulul a, Carbon
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Surface paving
Engineered clean fill—
Barrier layer _ ...
Sloping drainage layerMaw
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Impermeable liner PER
W „
Vapor collection layer
4W Blower
Residual
Cattamination
NOTE: Drawing not to scale
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PROMENADE NEIGHBORHOOD PARK _ HUNTINGTON BEACH CA' CONCEP UAL SITE PLAN
PLC LAND.COMPANY NEWPORT BEACH CA t
RCA ROUTING SHEE
INITIATING DEPARTMENT: Community Services, Fire Piannin
SUBJECT: Approve Acceptance of Park Parce and Environmental,
Indemnification Agreement Pertai ing Thereto-(Holmby
Park) t
COUNCIL MEETING DATE: October 21 , 002
RCA ATTACHMENTS STATUS
Ordinance (w/exhibits & legislative draft if applicable) Not Applicable
Resolution (w/exhibits & legislative draft if applicable) Not Applicable
Tract Map, Location Map and/or other Exhibits Not Applicable
Contract/Agreement (w/exhibits if applicable)
(Signed in full by the City Attorne Attached
Subleases, Third Party Agreements, etc.
(Approved as to form by City Attorne Not Applicable
Certificates of Insurance (Approveay(Approve the City Attome_0 Not Applicable
Financial Impact Statement Unb d et, over $5,000 Not Applicable
Bonds If applicable) Not Applicable
Staff Report If applicable) Not Applicable
Commission, Board or Co4nittee Report If applicable) Not Applicable
Findings/Conditions for A roval and/or Denial Not Applicable
EXPLAIMATION FOR MISSING ATTACHMENTS
RE IEWED RETURNED FORWARDED
Administrative Staff
Assistant CitV Adm' istrator Initial
City Administrator 11nitial
City Clerk
t
..EXPLANATION F RE URN OF ITEM: ,
(BelowOnly)
RCA Author: HZ:SH:MBB