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.