Birch Hills Golf Course, A Toxic Blunder.

Title to the Birch Hills Golf course, owned by Union Oil/Chevron since it was built in 1972, was to be transferred to the City of Brea in exchange for being released from the obligation of paying a Parks in Lieu Fee. Who knew what a total nightmare this seemingly simple matter would become?

The pissing contest between Chevron and the City of Brea has consumed over three years in closed sessions, allowed the once popular course to be dramatically reduced in size and to fall into a horrible state of disrepair and finally, last Tuesday, it showed up on Council’s agenda as Consent Item 21.

Consent Item! Bull Sugar!

Consent Calendars are reserved for routine, non-controversial, housekeeping items, or matters the Council has achieved consensus on after previous discussion. Generally, topics that have not been previously discussed by Council should not be put on the consent agenda.

Since the early ‘90’s Staff and Council have been burying critical items on the Consent Calendar to avoid conflicting public opinion. It’s a practice I’ve been fighting for years.

The moment agendas are posted late Friday afternoon, I immediately check the Consent Calendar to see what is getting swept under the rug at the next meeting. I find dubious items virtually every time, the Birch Hills matter is a prime example.

Why Pull The Item For Discussion? 

Three years in the making and this multi-million dollar city asset was being acquired like a thief in the night, with no provision for discussion. Again, bull sugar.

Well over a hundred pages of complicated legal documents, with 14 attachments, were handed off to Council Friday evening and they… we all… had 97 hours to digest and research or corroborate it all.

Thankfully there were several folks willing to attempt the task.

What they found was a grossly incomplete set of documents that saddled Brea, forever, with a toxic, barely profitable piece of property with virtually no means of turning it around without spending a fortune.

How toxic? How costly to mitigate? What options for repurposing some or all of the land to a more safe and profitable use? Nothing in the documents offered even a hint at answers.

Birch Hills Toxicity Is Serious Issue.

Chevron’s field assistant to the project manager on the La Floresta and the senior boots on the ground as the biohazards on the golf course and Rails-to-Trails segment were mitigated, John Bickel, pleaded with Council at their study session to pull the item from the Consent Calendar and table it until they had a better idea of what they were really accepting.

John provided a detailed account of burying countless yards of contaminated soil under the parking lot and the additional mitigation required to bring the property up to residential standards.

John concluded his remarks with the admonition that we just don’t know enough… there are still too many unknowns. There’s a lot more explaining to do before we saddle ourselves with this monster.

Addendum – John Bickel: I think it’s important to add some clarity on exactly what is buried there, why there is more remediation to do.We (Chevron) cleaned up to meet golf course spec not residential. There really is no danger in playing golf, the lake is not contaminated. The soil beneath MAY be, no one knows for sure, it has liner underneath it is why it wasn’t sampled. The unknowns and talk of toxics could damage the income of the course.

Erin Brockovich ring a bell?

Let me add that converting this land to residential use has been a part of the General Plan since 2003. It’s on the city website. The map on page 40 shows this property as low density residential.

The city planners knew it. Unocal/Chevron knew it. Yet the documents to effect the transfer of title provide little or no clear answers how the city might proceed in that direction in the future.

Another Voice Of Reason.

During Matters From The Audience, Dwight Manley chastised Council for putting such an important matter on Consent Calendar and to table the item until the many blanks could be filled in. Clearly Council could not proceed with any certainty based upon the information available.

Here are Dwight’s comments to Council. Please listen carefully. Would you have proceeded blindly to conclude this transaction knowing how little you really knew?

Vargas Exits, Council Dives In.

Forced by legal counsel to recuse himself, Council member Vargas left the meeting. Having voiced his serious concerns since early in the weekend about the Birch Hills issues, Mr. Vargas appeared to be the only real voice of reason.

Many people, believing that Council had clearly heard the public’s position on the matter, left the meeting as well. Thinking it was tabled… they were in for the shock of their lives.

A Comedy Of Errors.

I was watching from home and hung in there. The thirty minutes of bungling and incompetence that followed was gut-wrenching.

In response to half-baked questions from an obviously uninformed Council, staff pulled off an exhibition of world class sugarcoating, deflection, outright misinformation including the “$80 a cubic yard” lie.

If you have the stomach for it, you can watch the streaming video on the city website.

I texted Dwight, warning him that it appeared Council was being drug down a path towards approving the transfer of the Birch Hills Golf Course and direct the Mayor to execute all documents necessary to close escrow.

That’s exactly what they did. They saddled us with a toxic horror and no means to dealing with it lest we spend millions upon millions of dollars ($300 million?) and beg, with fingers crossed, that Chevron and the EPA would approve our request to clean up and repurpose the property.

Unbelievable! Inconceivable!

Brea resident, Thomas Kwan, turned off his TV and emailed Council after listening to Dwight’s detailed and heartfelt plea. A copy of it reached me on Friday. Here I’ve paraphrased a few excerpts.

The last document of the set of exhibits setting forth the request for approval of the Birch Hills Golf Course Ownership Transfer Documents is the Covenants, Conditions, and Environmental Restrictions…which contains the Soil Mediation Plans for the different parts of the property.

There remains on the southern portion of the property toxic chemicals including among others, PCB’s polychlorinated biphenyls, dioxins/furans, relatively stable compounds toxic chemicals that will be there for a long time.

Who in their right mind would want to accept the Draconian responsibilities and liabilities associated with that property and the associated acquisition agreement?

Keep in mind not all of the soil has been tested. There may be areas of contamination that have not been found, have been buried without record or carried by the elements elsewhere to an untested area.

As far as I am concerned the owner (Chevron) should keep Birch Hills, build a sarcophagus over the site and fence it with skull and crossbones signs around the property.

If Brea wants to take over compliance with the EPA and OCHCA restrictions and share the responsibilities and liabilities, then Chevron should fund a multimillion dollar trust for such.

So What’s The Damned Rush?

There are no critical deadlines, threatening penalties or life and death issues here. No real urgency at all. Hell, we’ve screwed around with this for three to four years. Can’t we take a few more weeks… months… to make sure we do this right?

There are legally acceptable ways to delay the final execution of escrow while we connect all the dots. Why wouldn’t Council use every means at their disposal to do this right?

 

Matters From Don Parker.

Last Tuesday, at Matters From The Audience, Brea Deputy City Treasurer Don Parker dropped a bombshell on Council and staff. There seems to have been yet another case of “less than best practices” on the part of staff and there could be a cost to approaching a million bucks.

Emerging from a nine year series of amendments (six actually) to a professional services agreement with Ninyo & Moore for their work on the Rails-To-Trails project that increased their cost from $24,500 to $1,034,777.30 – 42.3X the original estimate.

Don’s Report To Council.

I said I would review the contracting done when the City auditors questioned costs and I am here to comment on that. As background, the contracting for soil testing and services on the Tracks project was questioned because the file(s) “could not be located” but I looked at the contracting.

In 2010, an agreement was approved with Converse Consultants for a soil remediation plan. The report indicated their bid was $46,100 and the high bid of Ninyo & Moore was $55,200. A consent item approved their contract for $55,200. No I have not misspoken, the low bidder was given the high bid price with no explanation as to why. In my 40 plus years of municipal auditing and accounting I have never seen this done and no one questioned it. What was done with this difference is unknown.

(Burying items like this on the Consent Calendar has become de rigueur for city business whenever they prefer to keep the public in the dark. More on this later.)

In 2012, Ninyo & Moore, prior high bid, proposed $19,500 for a soil remediation plan and a contract was prepared for $24,500. Again I have not misspoken as this was $5,000 more than their proposal with no explanation. Since this was under $25,000 “policy limit” our prior City Manager approved it. Where that $5,000 went is unknown.

(Hot button number two – City Manager purchasing authority. Are you serious? It was purported to be $25,000 back then (2012 and prior) but no one could establish when or even if this was approved by Council!

Today the rumor has doubled to $50,000, with no indication as to how many times a year the City Manager can exercise this authority. I’ve filed a CPRA request to document details of this. We’ll see what the City Clerk can dig up.)

In 2013 through 2015, the first through third amendments were done and approved on consent for $200,000, $70,000 and $40,000, respectively. Supposedly because original estimates of soil depth, etc. were in error.

(Note: As a part of soil remediation work, a separate contractor is required to provide oversight to ensure that the cleanup meets the standards of both the City and the local regulatory agency, which is the Orange County Health Care Agency.

So, this exponentially escalating cost is only part of the expense. This is for analysis and oversight. Another contractor had to dig up the arsenic laced soil and properly dispose of it. When I mentioned this to a friend they chuckled, “Maybe ‘the roads are paved with gold’ didn’t come from Dick Whittington and his Cat after all.”)

In 2016, the fourth amendment was approved on consent for $60,700 again for additional soil testing services. However, now in the staff report it was stated that Council approved the original agreement with Ninyo & Moore in 2012. As I have indicated, and as confirmed by your City Clerk, the original agreement in 2012 was never approved by Council. This misinformation started after our current City Manager took his position and I believe this was added to justify using this vendor

In 2017, the fifth and sixth amendments were approved by consent for $218,144.30 and $421,433, respectively for segments 2, 3 and 4 of the project. Each of these segments should have been bid separately. Instead, they were just given to the existing firm. Repeatedly in these staff reports it was stated that Council approved the 2012 original agreement which was a lie.

(Not unlike the lie that the Paramedic Tax was for the sole purpose of developing and maintaining a mobile intensive care paramedic service. Now we know it was just another honey pot. Anyone but me starting to see a pattern here?)

In summary, we have contracts awarded for amounts in excess of the proposals received with no explanations of why or where those monies went. A contract which started at $24,500, approved by our prior City Manager, which was increased to $1,034,777.30 with no additional bids to protect the public’s money. Staff reports repeatedly misled readers into thinking the original agreement was Council approved but it never was. Community Development staff, management and our prior and current City Managers cut corners, prepared false staff reports and possibly enriched themselves or others to the detriment of our City.

Our auditors did not comment on these situations so we are lucky they did not follow through. However, it is possible we still could have to repay these monies. In any event these situations occurred and they do time and time again. When is Council going to say enough is enough and start holding City management accountable and protecting our monies? I guess just approving false staff reports is easier.

D.P.

So, where do we go with this? How about starting to hold Council accountable to do what we elected them to do. I think the popular term today is ‘community driven governance’ – something I’ve been advocating for many years.

So, What Have We Learned?

We’ve learned that our Records Retention Schedule allows critical records and important public documents to be routinely dumped every 90 days. Stuck in the sixties, the City Clerk has no control over electronic communications… the IT department has their servers set on auto-purge.

We’ve learned that a deceptive plan to do an end run around Prop 13 gave us the Paramedic Tax. Millions of dollars, almost half of what has been collected since 1978, has been diverted to pay for development debt and other obligations not even remotely related to the paramedic services Brea voters believed they were creating.

We’ve learned that, for decades, the Consent Calendar has been used as a bureaucratic black hole to hide everything Council and staff wanted to keep from public view. Thankfully, in recent years, several Breans have become quite talented at spotting the big fat checks disguised as routine expenses.

We’ve learned that the City Manager has a huge treasure chest he can dip into at will without Council’s knowledge, oversight or approval… and we’re about to find out if it’s even legal.

We discovered that our appointed Cal Domestic Board Members unanimously approved combined stipends from Cal Domestic and their for profit subsidiary Cadway totaling a potential $24,000 a year income. That’s 3 or 4 times Council’s base stipend.

Council has been requested to require these public servants to file the annual CA Form 700 Statement of Economic Interests and Council is balking. Unless they call a special meeting, which they won’t, they’ll miss the deadline and face a formal complaint being filed with the FPPC.

 

When Is A Law Not A Law?

Well, it seems a law isn’t a law unless City Attorney Markman decides to give it his blessing and Councilman Vargas likes it.

At the March 20 meeting of City Council, the Consent calendar item amending the City Manager’s employment contract triggered a strong public objection to the unsupported dismissal of Measure T, passed by a majority of Brea voters in 2012 and limiting Council and senior staff compensation.

The law matters.

A half dozen or so residents decided to address Council during Matters from the Audience.

Three folks, all admittedly candidates for Council this year, addressed a Consent item about park maintenance, the homeless situation in Brea and Senator Moorlach’s recent study that put Brea fiscally next to last in OC cities.

Measure T and the City Manager contract wasn’t on the radar of any candidate for Council. Thee red flags!

The other speakers all focused in on the law, the contract, the damned good reasons the law should be upheld and the contract pulled from the Consent calendar… subjected to public hearing.

Let’s talk about the initiative process.

The initiative process is a form of direct democracy. Citizens draft a “measure” which they then propose by petition; if the petition receives sufficient popular support, the measure is placed on the ballot and can be enacted into law by a direct vote of citizens.

Unless Measure T can be shown to be in conflict with Constitutional law, it is law in Brea and enforceable.

Again, I suggest that the law is the law. Write the contract accordingly. Through negotiation, Mr. Gallardo can agree to it’s stipulations or reject them. He may also challenge them in court.

So, what the hell happened?

Let’s start here then I’ll give you a rundown of events. The rule of law is the principle that law should govern a nation, as opposed to being governed by decisions of individual government officials.

lawDuring the “Response to Public Inquiries” Mayor Parker, rather than pulling the City Manager Contract from the Consent calendar (Item 18) as had been requested by several residents, allowed the City Manager to defer to comments from the City Attorney.

First came a brief and mostly unintelligible description of the amendment to the City Manager Employment Contract Agreement, which had received substantial objections, mostly centering around the restrictions imposed by Measure T. Then Mr. Markman jumped into a rationalization of why the law approved by Brea voters in 2012 has been largely ignored.

“(The speakers) are blasting something that was done very carefully, in public… you will recall that when Measure T was adopted it was our obligation to analyze it because some parts of it we saw were obviously valid and had to be implemented… like the health benefits being deprived from the Council… some of the other provisions we didn’t think, for various reasons, were enforceable or valid…”

Let me stop you right there Mr. Markman. As you pointed out, Measure T was adopted. A majority of Brea voters passed Measure T with the intent that it become law. Not unlike when they voted to establish a paramedic service… and we know what a fiasco that has turned out to be.

Your obligation, Mr. Markman was to implement the wishes of the voters, NOT analyze it. Who is the “we” you mention that decided some “provisions we didn’t think… were enforceable or valid” – you and Tim O’Donnell?

Because another unnamed city has let a similar initiative languish without implementation is not a good reason why Brea should mirror the same groundless behavior. They, whoever that is, were wrong… ergo you were wrong.

Mr. Vodhanel, during “Matters,” clearly described the history of unsound counsel that cost Brea nearly a million dollars in unnecessary legal expenses… half of which ended up in the RGW coffers.

Any chance you’ll be giving that back?

I don’t care what “thoroughgoing presentation with PowerPoint” you gave Counsel in 2013. If it’s intent was to dismiss a law demanded by Brea voters it was just one more sample of unsound counsel.

I don’t care that you attempted and failed to “negotiated with Mr. Vodhanel directly to try to get some sort of compromise resolution.” Once Brea voters made their wishes known, the original proponent placing the measure on the ballot was no longer in the gunner’s seat… amending the law should be done in a manner that, again, gave Brea voters a voice.

Arguing on behalf of the amended contract.

Now Mr. Markman’s comments, having successfully dismissed any relevance of Measure T or the Brea voters who approved it, turned to yet another prattling of legalese, the sole purpose to rebuff the law and dismantle every objection to Mr. Gallardo’s amended contract.

At what point did the City Attorney’s job description add the responsibility of playing agent for the City Manager? Take your “show me the money” propaganda Mr. Markman and stick to your job description.

Vargas jumps in… puts both feet in his mouth.

lawCouncilman Vargas interrupted the normal flow of the meeting to interject comments relative to Item 18, without objection from Mayor Parker. Totally inappropriate.

With no motion on the floor to approve the Consent calendar or to pull Item 18 for individual consideration… this was little more that grandstanding.

“I would like to make a couple of additional comments on Item 18 without pulling it as I’m prepared to support this Consent calendar.” Vargas said. No objection from anyone on Council. Wimps. Are you really that susceptible to being bullied by someone you all know is in way over their head?

After claiming to be the biggest and most vocal proponent of Measures T and U, Councilman Vargas cites some piece of correspondence from an anonymous woman to allow him to springboard into putting his two cents in without challenge. Anonymous? Put this mystery letter into the public record so we can all see it. No need to redact anything… it’s anonymous!

First, he squashed the four mile limit claiming the city would have to spend large sums for moving expenses and the provision of a silent second. Whoa Mr. Vargas!

A silent second is a type of second mortgage loan that is part of a home sale transaction without the knowledge of the first lender. In most instances, silent second home financing is a form of fraud and thus highly illegal.

Right, wrong or otherwise… Councilman Vargas seems to have dismissed any possibility for further negotiation with the City Manager.

But wait… there’s more!

Councilman Vargas then addresses the limitations to the contract imposed by Measure T and Council’s amending the term from three to five years… which requires explanation, to be sure.

Vargas points out that the City Manager is waiving a 3.2% salary increase, driven by a provision in Measure T for an automatic adjustment of 10% higher than the next highest employee. “I never liked that provision… it was put in long ago and I don’t like it.”

Your use of the unilateral dismissal strikes me the same way,” it was put in long ago and I don’t like it.” Okay Mr. Vargas, you’ve used up all of your unilateral overrides and embarrassed this community enough. What you like or don’t like has no bearing on the law or it’s enforcement. What a preposterous idea.

If, one day, you decide you don’t like the speed limit on Birch Street will we be dodging your big red pickup? If you decide you don’t like laws prohibiting driving under the influence can we expect to see that big red pickup weaving in and out of traffic… putting lives at risk?

You may say that’s just silly… but your rejection of a law adopted by Brea voters on a whim is just as silly. Maybe even more so.

Badda-bing… badda-boom.

With that, Councilman Vargas moves to approve the entire Consent Calendar, someone mumbled a second (we’ll need to see the minutes to determine who it was), there was no additional discussion from any Council member and the whole list was approved – badda-bing… badda-boom.

If that weren’t enough, fast forward to Council Announcements and the only one to speak is Mayor Parker. Unwilling to quash the inappropriate remarks of Mr. Vargas earlier, he launches into his own remarks after the horse is well out of the barn.

Citing that Council is only capable of doing the great job they do because they’re able to hire the very best employees to support them. He continues suggesting it’s Brea’s ability to be salary competitive that brings us “competent and effective” staff we have.

How’s that been working for you Mayor Parker?

Mayor Parker concludes his four minute unsolicited, unnecessary and unwanted comments with an effusive back patting and rationalization session.

Please… don’t let me see his name on the ballot ever again. Not even for dog catcher.

 

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