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HomeMy WebLinkAboutLand Use Covenant with the California Department of Toxic Su Council/Agency Meeting Held: p Deferred/Continued to: 'AApp ved ❑ Conditionally Approved ❑ Denied Ci Clerk' Signat e Council Meeting Date: April 16, 2012 Department ID Number: PW 12-018 CITY OF HU,NTINCTON BEACH REQUEST FOR CITY COUNCIL ACTION SUBMITTED TO: Honorable Mayor and City Council Members SUBMITTED BY: Fred A. Wilson, City Manager PREPARED BY: Travis K. Hopkins, PE, Director of Public Works SUBJECT: Approve and authorize execution of a Land Use Covenant (LUC) between the City of Huntington Beach and the California Department of Toxic Substances and Control (DTSC) Statement of Issue: A Land Use Covenant between the City and California Department of Toxic Substance Control (DTSC) is required by DTSC to meet conditions set by DTSC during the City Hall Seismic Upgrade Project. Land Use Covenant restricts certain future land uses and requires the City to prepare and submit a work plan to DTSC if hazardous materials are encountered during any soil disturbance activities within a portion of the Civic Center site. Financial Impact: Minor additional costs on future construction projects to prepare a work plan and obtain DTSC approval prior to commencing work. There would be also minor to moderate costs during construction for handling, disposal, and monitoring of disturbed material. Recommended Action: Motion to: A) Approve and authorize the Mayor and City Clerk to execute a Land Use Covenant (LUC) entitled "Covenant to Restrict Use of Property, Environmental Restriction" between the City of Huntington Beach and California Department of Toxic Substances and Control (DTSC). B) Instruct the City Clerk to record the Land Use Covenant and attached exhibits with the Orange County Recorder after DTSC signs agreement. Alternative Action(s): Reject the Land Use Covenant as written and direct staff as to how to proceed. xB -301- Item 11. - 1 REQUEST FOR COUNCIL ACTION MEETING DATE: 4/16/2012 DEPARTMENT ID NUMBER: PW 12-018 Analysis: During the City Hall Seismic Upgrade Project, the workers encountered a coal tar creosote based material that had been used as waterproofing on the subterranean structures when City Hall was constructed in the early 1970's. The material is now considered a hazardous material. The State Department of Toxic Substance Control (DTSC) became the primary oversight agency for the handling and remediation work. Going forward, the DTSC required the City to enter into a recorded Land Use Covenant (LUC) to set restrictions on certain land uses on the property and set requirements for future excavation or construction work that would expose or disturb the remaining waterproofing materials. Prohibited land uses include the following: (a) A residence, including any mobile home or factory built housing, constructed or installed for use as residential human habitation. (b) A hospital for humans. (c) A public or private school for persons under 21 years of age. (d) A day care center for children. Since the waterproofing materials are limited to the underground structure walls, staff feels the exposure risk is very low and recommends approval of the LUC with DTSC. Public Works Commission Action: Not applicable for this action. Environmental Status: Not applicable for this action. Strategic Plan Goal: Improve the City's infrastructure Attachment(s): ME= Land Use Covenant between the City of Huntington Beach and California Department of Toxic Substance Control with Exhibit "A" Item 11. - 2 HB -302- ATTACHMENT # 1 This Document was electronically recorded by City of Huntington Beach Recorded in Official Records, Orange County Tom Daly,Clerk-Recorder RECORDING REQUESTED BY: IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII45.00 City of Huntington Beach 37 2000 Main Street Huntington Beach, California 92648 402 Al 14 2012000233376 02:08pm 04/24/12 0. g 0.00 0.00 0.00 0.00 39.00 0.00 0.00 0.00 WHEN RECORDED, MAIL TO: Department of Toxic Substances Control Cypress Cleanup Branch 5796 Corporate Avenue Cypress, California 90630 Attention: Greg Holmes SPACE ABOVE THIS LINE RESERVED FOR RECORDER'S USE COVENANT TO RESTRICT USE OF PROPERTY ENVIRONMENTAL RESTRICTION ��lmentis fOf a Cdty of mplatadHun GOvemunder County of Orange, Portion of APN 023-031-14, be't g� 61 City of Huntington Beach Civic Center sd fre,,Gf z DTSC Site.Code Number401457-11 This Covenant and Agreement ("Covenant") is made by and between the City of Huntington Beach (the "City" or "Covenantor"), the current owner of property situated in Huntington Beach, County of Orange, State of California, described in Exhibit "A" (the "Property"), and the Department of Toxic Substances Control (the "Department"). Pursuant to Civil Code section 1471, the Department has determined that this Covenant is reasonably necessary to protect present or future human health or safety or the environment as a result of the presence on the land of hazardous materials as defined in Health and Safety Code section 25260. The Covenantor and the Department, collectively referred to as the "Parties," hereby agree, pursuant to Civil Code section 1471 and Health and Safety Code section 25355.5, that the use of the Property be restricted as set forth in this Covenant; and the Parties further agree that Page 1 the Covenant shall conform with the requirements of California Code of Regulations, title 22, section 67391.1. ARTICLE I STATEMENT OF FACTS 1.01. The Property, totaling approximately 4.67 acres or 203,621 square feet, is more particularly described and depicted in the attached Exhibit "A" Pages 1 and 2 and more commonly known as City Hall including the buildings labeled as Administration, Development, Police, City Council Chambers, and connected subterranean structures. The Property is located in the area now generally bounded by Yorktown Avenue on the north, Lake Street on the east, Park Street and Utica Avenue on the south and Main Street on the west. The Property is a portion of the Orange County Assessor's Parcel No.: 023-031-14, more generally located from 66 feet to 530 feet east of the east right- of-way of Main Street and from 185 feet to 805 feet south of the south right-of-way of Yorktown Avenue. The Property is primarily covered with buildings or paved and contains 4 buildings, paved areas, planters, and parking lots. 1.02. A reimbursement agreement was entered between the Department and the City on August 28, 2008. The scope of work included the review and approval of a site contamination assessment which was initially performed at the Property in response to an outbreak of dermatitis among unprotected workers removing creosote from the building basement in June 2008. In the 1970s, the creosote was used as waterproofing material and primer to attach sidings on the subsurface exterior walls of the building basement and foundation which material were backfield with soils and covered concrete slabs. The removal of concrete slab, excavation of soils and removal of the creosote was a part of the seismic upgrade project at the site. 1.03. The Removal Action Workplan was approved on December 18, 2008. The remedial alternative selected was to excavate, along with partial removal of the visual creosote coating, removing of hot spot contaminated soil, backfill of the excavated area, Page 2 and the placement of a cap (the cap includes the parking lot and excludes the vegetative area: Cap). Sampling results revealed that the vegetative area is acceptable for unrestricted use. 1.04. The Removal Action Workplan included a Health Risk Assessment and a notice of exemption pursuant to the California Environmental Quality Act, Public Resources Code section 21000 et seq. These documents were released for public review and comment and subsequently approved by the Department on December 18, 2008. Hazardous substances, as defined in Health and Safety Code section 25316, which are also hazardous materials as defined in Health and Safety Code section 25260, including creosote and Polycyclic Aromatic Hydrocarbons (PAH) remain in soil above unrestricted cleanup goals. The Removal Action Workplan, including a Health Risk Assessment, provides this Covenant to restrict use be required as part of the site remediation. 1.05. An approved Health Risk Assessment evaluated the potential risk associated with the waste contained under the Cap; direct dermal exposure to un- capped waste materials constituted unacceptable risks. Hazardous materials remain in the soil in and under portions of the restricted areas, and based on the Health Risk Assessment, DTSC concluded that use of the Property as a residence, hospital, school for persons under the age of 21 or day care center would entail an unacceptable human health risk. The Department further concluded that the Property, as remediated, and subject to the restrictions of this Covenant, does not present an unacceptable threat to human health or safety or the environment. ARTICLE II DEFINITIONS 2.01. Department. "Department" means the California Department of Toxic Substances Control and includes its successor agencies, if any. Page 3 2.02. Environmental Restrictions. "Environmental Restrictions" means all protective provisions, covenants, restrictions, prohibitions, and terms and conditions as set forth in any section of this Covenant. 2.03. Improvements. "Improvements" includes, but is not limited to: buildings, structures, roads, driveways, improved parking areas, wells, pipelines, or other utilities. 2.04. Lease. "Lease" means lease, rental agreement, or any other document that creates a right to use or occupy any portion of the Property. 2.05. Occupant. "Occupant" means Owners and any person or entity entitled by ownership, leasehold, or other legal relationship to the right to occupy any portion of the Property. 2.06. Owner. "Owner" means the Covenantor, and all successors in interest including heirs and assigns, who at any time hold title to all or any portion of the Property. ARTICLE III GENERAL PROVISIONS 3.01. Runs with the Land. This Covenant sets forth Environmental Restrictions that apply to and encumber the Property and every portion thereof no matter how it is improved, held, used, occupied, leased, sold, hypothecated, encumbered, or conveyed. This Covenant: (a) runs with the land pursuant to Health and Safety Code section 25355.5 and Civil Code section 1471; (b) inures to the benefit of and passes with each and every portion of the Property, (c) is for the benefit of, and is enforceable by the Department, and (d) is imposed upon the entire Property unless expressly stated as applicable only to a specific portion thereof. Page 4 3.02. Binding upon Owners/Occupants. Pursuant to the Health and Safety Code, this Covenant binds all owners of the Property, their heirs, successors, and assignees, and the agents, employees, and lessees of the owners, heirs, successors, and assignees. Pursuant to Civil Code section 1471, all successive owners of the Property are expressly bound hereby for the benefit of the Department. 3.03. Incorporation into Deeds and Leases. This Covenant shall be incorporated by reference in each and every deed and Lease for any portion of the Property. 3.04. Conveyance of Property. The Owner shall provide written notice to the DTSC not later than thirty (30) days after any conveyance of any ownership interest in the Property (excluding Leases, and mortgages, liens, and other non-possessory encumbrances). The written notice shall include the name and mailing address of the new owner of the Property and shall reference the site name and site code as listed on page one of this Covenant. The notice shall also include the Assessor's Parcel Number (APN) noted on page one. If the new owner's property has been assigned a different APN, each such APN that covers the Property must be provided. The DTSC shall not, by reason of this Covenant, have authority to approve, disapprove, or otherwise affect proposed conveyance, except as otherwise provided by law or by administrative order. 3.05. Costs of Administering the Covenant to be paid by Owner. The DTSC has already incurred and will in the future incur costs associated with the administration of this Covenant. Therefore, the Covenantor hereby covenants for the Covenantor and for all subsequent Owners that, pursuant to California Code of Regulations, title 22, section 67391.1(h), the Owner agrees to pay the Department's costs in administering the Covenant. ARTICLE IV RESTRICTIONS AND REQUIREMENTS Page 5 4.01. Prohibited Uses. The Property shall not be used for any of the following purposes: (a) A residence, including any mobile home or factory built housing, constructed or installed for use as residential human habitation. (b) A hospital for humans. (c) A public or private school for persons under 21 years of age. (d) A day care center for children. 4.02. Soil Management and Non-Interference with the Cap (a) No activities that will disturb the Cap or the soil below the Cap (e.g., excavation, grading, removal, trenching, filling, earth movement, mining, or drilling) shall be allowed on the Property without a Soil Management Plan approved by the Department in advance. (b) Any contaminated soils brought to the surface by grading, excavation, trenching or backfilling shall be managed in accordance with all applicable provisions of state and federal law. (c) All uses and development of the Capped Property shall preserve the integrity or effectiveness of the Cap. 4.03. Access for Department. DTSC shall have reasonable right of entry and access to the Property for inspection, monitoring, and other activities consistent with the purposes of this Covenant as deemed necessary by the Department in order to protect the public health or safety, or the environment. Page 6 4.04 Five-Year Review. In addition to the annual reviews noted herein, after a period of five (5) years from the recordation of this Covenant and every five (5) years thereafter, Owner shall review and reevaluate to determine if human health and the environment are being adequately protected by the remedy as implemented. Within thirty (30) days before the end of each five-year period, Owner shall submit a five-year review workplan to the Department for review and approval. Within sixty (60) days the Department's approval of the workplan, Owner shall implement the workplan and submit a report of the results of the five-year review. The report shall describe the results of all inspections, sampling analyses, tests and other data generated or received by Owner and evaluate the adequacy of the implemented remedy in protecting human health and the environment. As a result of any review work performed, the Department may require Owner to perform additional work. 4.05 Access for Implementing Five Year Review. If the entity or person(s) responsible for implementing the periodic Five Year Review is not the Owner, the entity or person(s) responsible for implementing the Five Year Review shall have reasonable right of entry and access to the Property for the purpose of implementing the periodic Five Year Review until the Department determines that no further periodic Five Year Review is required. 4.06. Inspection and Reporting Requirements. The Owner shall conduct an annual inspection of the Property verifying compliance with this Covenant, and shall submit an annual inspection report to the Department for its approval by January 15th of each year. The annual inspection report must include the dates, times, and names of those who conducted the inspection and reviewed the annual inspection report. It also shall describe how the observations were performed that were the basis for the statements and conclusions in the annual inspection report (e.g., drive by, fly over, walk in, etc.). If violations are noted, the annual inspection report must detail the steps taken to return to compliance. If the Owner identifies any violations of this Covenant during Page 7 the annual inspections or at any other time, the Owner must within 10 days of identifying the violation: determine the identity of the party in violation, send a letter advising the party of the violation of the Covenant, and demand that the violation cease immediately. Additionally, copies of any correspondence related to the violation of this Covenant shall be sent to the Department within 10 days of its original transmission. ARTICLE V ENFORCEMENT 5.01. Enforcement. Failure of the Owner or Occupant to comply with this Covenant shall be grounds for the Department to require modification or removal of any Improvements constructed or placed upon any portion of the Property in violation of this Covenant. Violation of this Covenant, including but not limited to, failure to submit, or the submission of any false statement, record or report to the Department, shall be grounds for the Department to pursue administrative, civil, or criminal actions, as provided by law. ARTICLE VI VARIANCE, TERMINATION, AND TERM 6.01. Variance. Owner, or any other aggrieved person, may apply to the Department for a written variance from the provisions of this Covenant. Such application shall be made in accordance with Health and Safety Code section 25233. 6.02 Termination or Partial Termination. Owner, or any other aggrieved person, may apply to the Department for a termination or partial termination of one or more terms of this Covenant as they apply to all or any portion of the Property. Such application shall be made in accordance with Health and Safety Code section 25234. 6.03 Term. Unless ended in accordance with paragraph 6.02, by law, or by the Page 8 Department in the exercise of its discretion, this Covenant shall continue in effect in perpetu ity. ARTICLE VII MISCELLANEOUS 7.01. No Dedication Intended. Nothing set forth in this Covenant shall be construed to be a gift or dedication, or offer of a gift or dedication, of the Property, or any portion thereof to the general public or anyone else for any purpose whatsoever. 7.02. Recordation. The Covenantor shall record this Covenant, with all referenced Exhibits, in the County of Orange County within ten (10) days of the Covenantor's receipt of a fully executed original. 7.03. Notices. Whenever any person gives or serves any Notice ("Notice" as used herein includes any demand or other communication with respect to this Covenant), each such Notice shall be in writing and shall be deemed effective: (1) when delivered, if personally delivered to the person being served or to an officer of a corporate party being served, or (2) three (3) business days after deposit in the mail, if mailed by United States mail, postage paid, certified, return receipt requested: To Owner: City of Huntington Beach Department of Public Works 2000 Main Street Huntington Beach, CA 92648 Attention: Director of Public Works To DTSC: Department of Toxic Substances Control Cypress Cleanup Branch Brownfields and Environmental Restoration Program 5796 Corporate Avenue Cypress, CA 90630 Page 9 Attention: John Scandura — Branch Chief Any party may change its address or the individual to whose attention a Notice is to be sent by giving written Notice in compliance with this paragraph. 7.04. Partial Invalidity. If this Covenant or any of its terms are determined by a court of competent jurisdiction to be invalid for any reason, the surviving portions of this Covenant shall remain in full force and effect as if such portion found invalid had not been included herein. 7.05. Statutory References. All statutory references include successor provisions. 7.06. Incorporation of Attachments. All attachments and exhibits to this Covenant are incorporated herein by reference. Page 10 IN WITNESS WHEREOF, the Parties execute this Covenant. Department of Toxic Substances Control: Covenantor: CITY OF HUNTINGTON BEACH, a Municipal Corporation of the State of California By: Title: Greg HdImes - Unit Chief Mayor Cypress Cleanup Branch Department of Toxic Substances Control _-Eity len, E INITIATED AND AP ROVED: Date: �f �� /�-- Director of Pubic W rks REV AND APPROVED: ity ministrator APPROVED AS TO FORM: (�-Cify Attorney b�z- 6088 c'L Date: April 16, 2012 Page 11 State of California County of rQ,4,,qJ6� On A /IL before me, ID L-- (space above this line is for name and title of the officer/notary), personally appeared F>�)S� IZP— /�� ` QH L-- T YJ� , who proved to me on the basis of satisfactory evidence to be the persoi (os'whose names are ubscribed to the within instrument and acknowledged to me that--hers# they executed the same in fist# eir ' uthorized capacit les,, and that by-W r their signature0on the instrument the persord ), or the entity upon behalf of which the persoro acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal, P.L.ESPARZA Commission# 1857091 Notary Public-Cainornia orange County Comm.E ires Au 4,2013 Signature of Notary Pu `c ) Page 12 EXHIBIT A SHEET 1 OF 2 THAT REAL PROPERTY BEING A PORTION OF BLOCKS 1903, 2001 AND 2002 OF TRACT NUMBER 12 IN THE CITY OF HUNTINGTON BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON THE MAP RECORDED IN BOOK 9, PAGE 13, OF MISCELLANEOUS MAPS, IN RECORDS OF SAID COUNTY, TOGETHER WITH PARK STREET AND UNION AVENUE AND THE ALLEYS IN SAID BLOCKS, AS SHOWN ON SAID MAP AND AS VACATED IN THAT CERTAIN "RESOLUTION NUMBER 3415" OF THE CITY COUNCIL OF THE CITY OF HUNTINGTON BEACH, A CERTIFIED COPY OF WHICH WAS RECORDED JANUARY 6, 1972 IN BOOK 9956, PAGE 849 OF OFFICIAL RECORDS, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHWESTERLY CORNER OF BLOCK 2002, OF SAID TRACT NUMBER 12, SAID NORTHWEST CORNER ALSO BEING A POINT ALONG THE EAST LINE OF MAIN STREET (120' WIDE) AS SHOWN ON SAID TRACT NUMBER 12, THENCE SOUTHERLY ALONG THE WEST LINE OF SAID BLOCK 2002, SOUTH 00`00'00" WEST, 345.50 FEET; THENCE EASTERLY AT RIGHT ANGLES TO SAID WEST LINE, NORTH 90°00'00" EAST, 66.25 FEET, TO THE TRUE POINT OF BEGINNING OF THIS DESCRIPTION; THENCE CONTINUING EASTERLY NORTH 90°00'00" EAST, 210.42 FEET; THENCE AT RIGHT ANGLES NORTH 00°00'00" EAST, 106.90 FEET; THENCE AT RIGHT ANGLES NORTH 90°00'00" EAST, 254.67 FEET; THENCE AT RIGHT ANGLES SOUTH 00`00'00" WEST, 293.63 FEET; THENCE SOUTH 45°13'34" WEST, 388.70 FEET; THENCE NORTH 90'00'00" WEST, 189.15 FEET; THENCE AT RIGHT ANGLES NORTH 00°00'00" EAST, 460.50 FEET TO THE TRUE POINT OF BEGINNING OF THIS DESCRIPTION. CONTAINING 203,621 SQ FT (4.67 ACRES) AND Cb G ' EXP. 12-31-11 .1h L.S. 7340 JOSEPH G. DERLETH 9TF OF CAI.\F PLS 7340, EXPIRES 12/31/11 Legal Description DEED RESTRICTION AREA PORTION OF APN 023-031 - 14 .J CITY OF HUNTINGTON BEACH DEPARTMENT OF PUBLIC WORKS YORK OWN AVENUE SCALE=1"=100' '1 W CORiVER B 66< 2002, BRACT1 , 9/1, 'm.M Lq POINT QF:COMivENCEMENT O o TRUE POINT OF BEGINNING N90'00'00"E, 254,67' 0 0 25' 0 0 0 o w o — -=`•----- 0 0 0 oL o o 0 0 oa o 25' _ o c o o a o DEVELOPMENT a o BUILDING ,...:, N90'00'00"E, 210.4 o N90'00'00"E 25' © CANOPY N I 66.25' COURT YARD ca 0 0 0 ..-.._. ._.. . .. ...,......,. BASEMENT }- 51 ' o 0 w a Q POLICE BUILDING o0 cn . .'. COUNCIL H CD CHAMBER Q N a ao BASEMENT .o BASEMENT [[--�h��� QP J J 25 EXHIBIT A 11 189.15' SH EET 2 OF 2 90'00 00"W, PLAT DEED RESTRICTION AREA PORTION OF APN 023-031 - 14 ®� CITY OF HUNTINGTON BEACH DEPARTMENT OF PUBLIC WORKS