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HomeMy WebLinkAbout04.e. Approve real property agreement with John Stephens Downs and Stephanie Marlin DownsCentral Contra Costa Sanitary District �e ' BOARD OF DIRECTORS ' POSITION PAPER Board Meeting Date: May 16, 2013 Subject: ADOPT A RESOLUTION APPROVING A REAL PROPERTY AGREEMENT WITH JOHN STEPHENS DOWNS AND STEPHANIE MARLIN DOWNS, 110 LOMBARDY LANE, ORINDA (APN 266- 082 -006) AND AUTHORIZING EXECUTION AND RECORDING OF THE AGREEMENT Submitted By: Lisa Robertson, Right of Way Agent REVIEWED AND RECOMMENDED FOR BOARD ACTION: T. Brightbill — Senior Engineer D. Gemmell — Environmental Services Division Mgr. Initiating Dept. /Div.: Engineering / Environmental Services 't�l [A a V$ K. Alm C. Swanson Counsel for the District Provisional General Manager ISSUE: As provided in Chapter 7.15 of the District Code, John Stephens Downs and Stephanie Marlin Downs (owner), owners of the property at 110 Lombardy Lane, Orinda (APN 266- 082 -006), have requested that the Board approve a Real Property Agreement to allow existing improvements on the property within a District easement. RECOMMENDATION: Approve a Real Property Agreement; authorize the President of the Board and the Secretary of the District to execute the agreement; and authorize staff to record the agreement with the Contra Costa County Recorder. FINANCIAL IMPACTS: The property owners have paid the applicable processing fee, and have signed the proposed agreement that would obligate them to pay any incremental District costs attributable to the presence, maintenance or use of the improvements within the easement. ALTERNATIVES /CONSIDERATIONS: The Board may decline approval of the agreement and direct staff to disallow the improvement. BACKGROUND: The owner of 110 Lombardy Lane, Orinda experiences flooding from time to time during heavy winter storms due to inadequate drainage. To correct the inadequate drainage, the owner installed a storm drainage line across their property as well as the properties of 100 and 106 Lombardy Lane. Prior to the installation of the storm drainage line, the owner contacted the District to enter into a Real Property Agreement to allow their use to coexist within the existing District sewer easement. In addition, the owner entered into private easement agreements with the property owners at 100 and 106 Lombardy Lane regarding the installation and liability of the storm drainage line on their respective properties. The private easement agreement, Doc 2011- 0091905, was recorded May 6, 2011. C:\ Users \danderson\AppData \Local \Microsoft \Windows \Temporary Internet Files \Content.Outlook \DVCG8C5G \PP Approve PRA (Downs) 5 -16 -13 Final.doc Page 1 of 2 POSITION PAPER Board Meeting Date: May 16, 2013 Subject. ADOPT A RESOLUTION APPROVING A REAL PROPERTY AGREEMENT WITH JOHN STEPHENS DOWNS AND STEPHANIE MARLIN DOWNS, 110 LOMBARDY LANE, ORINDA (APN 266- 082 -006) AND AUTHORIZING EXECUTION AND RECORDING OF THE AGREEMENT The owner desires to leave in place over the subject easement, a recently constructed private storm drain improvement, hereafter referred to as "the Structure." The improvements, as shown in Exhibit "A," would be allowed within the District's easement subject to a Real Property Agreement as allowed by Chapter 7.15 of the District Code. Engineering and Collection System Operations have determined that the existing public sewer on the property is in good condition and that the Structure will not significantly interfere with the District's use. The owner is the project proponent of the Structure constructed across Subject Property and Off -Site Improvement Properties and has agreed to be fully responsible for the Structure within two other properties, 100 and 106 Lombardy Lane, Orinda (APN 266- 082 -005 and 266- 082 -005). The owner accepts liability for any damage that they may cause to the District's facilities. Further, the owner agrees to hold the District harmless from all claims and liability for injury to persons or property as a result of the presence of the improvements within the District's easement. The proposed Real Property Agreement limits what may be installed or planted within the easement area in the future. In addition, the owner agrees not to impede the District's routine or emergency access to the property, and to remove the improvements if so ordered by the District. The real property agreement to be recorded is the District's standard agreement and has not been modified. Stephanie Downs works for Meyers Nave and communicated directly with staff regarding this property transaction. Meyers Nave was not involved in any negotiations. Staff has concluded that this execution of the Real Property Agreement is exempt from the California Environmental Quality Act (CEQA) under CEQA Guidelines, §15305, since it involves a minor alteration in District land use limitations. The Board's approval of the agreement will constitute a determination that it is exempt from CEQA. RECOMMENDED BOARD ACTION: Adopt the proposed resolution approving a Real Property Agreement with John Stephens Downs and Stephanie Marlin Downs for the property at 110 Lombardy Lane, Orinda (APN 266- 082 -006); authorize the President of the Board and the Secretary of the District to execute the agreement; and authorize staff to record the document with the Contra Costa County Recorder. Attached Supportinq Documents: 1. Exhibit A "— Improvements to Property 2. Proposed Resolution 3. Proposed Real Property Agreement C:\ Users \danderson\AppData \Local \Microsoft \Windows \Temporary Internet Files \Content.Outlook \DVCG8C5G \PP Approve PRA (Downs) 5 -16 -13 Final.doc Page 2 of 2 RESOLUTION NO. 2013 - 010 A RESOLUTION OF THE CENTRAL CONTRA COSTA SANITARY DISTRICT APPROVING A REAL PROPERTY AGREEMENT WITH JOHN STEPHENS DOWN AND STEPHANIE MARLIN DOWNS DISTRICT JOB 1572 APN 266- 082 -006 NOW, THEREFORE, BE IT RESOLVED by the Board of Directors of the Central Contra Costa Sanitary District (District) as follows: THAT the District hereby approves the Real Property Agreement (Agreement) with John Stephens Down and Stephanie Marlin Downs, husband and wife as community property, for the property located at 110 Lombardy Lane, Orinda, California (District Job 1572, APN 266- 082 -006); and THAT the President of the Board of Directors and the Secretary of the District are hereby authorized to execute the Agreement for and on behalf of the District; and THAT District staff is authorized to record the Agreement in the office of the Recorder of Contra Costa County. PASSED AND ADOPTED this 16th day of May 2013, by the Board of Directors of the Central Contra Costa Sanitary District by the following vote: AYES: Members: NOES: Members: ABSENT: Members: James Nejedly President of the Board of Directors Central Contra Costa Sanitary District County of Contra Costa, State of California COUNTERSIGNED: Elaine R. Boehme, CMC Secretary of the District Central Contra Costa Sanitary District County of Contra Costa, State of California Approved as to form: Kenton L. Alm, Esq. Counsel for the District ATTACHMENT - AGREEMENT RELATING TO REAL PROPERTY Private Storm Drain -100, 106, and 110 Lombardy Lane, Orinda 1 1101 I I N01 L00-Z90-W NdV 3NV1,kCrdV MlVLL W Q N i � W i w$o� >i Z� ♦rr o i i � � Egg Ey a i� i� ♦ o � r 1, � r r r V1 r, r , f r, 1 �o LU a 19 i 1 I I Y � tt $ 0 1 i WzQ}-.1 > r rl ;!3 ig! _ 3 � �I ♦ I �2 q$I.�l f I I 1 1 f 1 1 _ 1 r Q 1 1 1 CD W D ' 1 ...i' r I 4 � N i � W i w$o� >i Z� ♦rr o i i � � Egg Ey a i� i� ♦ o � r 1, � r r r V1 r, r , f r, 1 �o a LU a 19 i ; RECORDING REQUESTED BY: CENTRAL. CONTRA COSTA SANITARY DISTRICT (CCCSD) AFTER RECORDING RETURN TO: CENTRAL CONTRA COSTA SANITARY DISTRICT ENVIRONMENTAL SERVICES DIVISION 5019 IMHOFF PLACE MARTINEZ, CA 94553 -4392 APN: 266- 082 -006 Job No: 1572 Parcel No: Tract AGREEMENT RELATING TO REAL PROPERTY Private Storm Drain Improvements located (100,106, and 110 Lombardy Lane, Orinda) This Agreement ( "Agreement ") is made and entered into as of the dates, hereinafter affixed, by and between JOHN STEPHENS DOWNS AND STEPHANIE MARLIN DOWNS ( "Owner") and CENTRAL CONTRA COSTA SANITARY DISTRICT, a California special district ( "District "). RECITALS A. Subject Property: Owner owns real property situate in the city of Orinda, county of Contra Costa, state of California, and generally known as of the date of this Agreement as 110 Lombardy Lane, Orinda, CA 94563, APN 266 -082 -006 ( "Subject Property ") and more particularly described as follows: Lot 2 of Sleepy Hollow Estates Map filed December 24, 1947 in Map Book 34, at Page 18, Contra Costa County Recorder's Office (34 M 18). B. Subject Easement: District has an easement ( "Subject Easement") over the Subject Property for the purpose of inspecting, constructing, installing, repairing, replacing, reconstructing, maintaining and operating sewer facilities and appurtenances, which said Subject Easement was established by subdivision map dedication as depicted on said filed Sleep Hollow Estates Map (34 M 18). C. Private Storm Drain Improvements: Owner desires to leave in place over the Subject Easement a recently constructed private storm drain improvement as shown on the attached plan, which is made a part of the Agreement hereof by this reference, and this improvement hereafter referred to as "the Structure ", which encroaches upon the Subject Easement. The District has determined that the Structure will generally not, other than in the case of repair, replacement, reconstruction, or maintenance, interfere with the present use of the Subject Easement. Agreement Related to Real Property John and Stephanie Downs Page 2 of 5 D. Off -Site Improvement Properties: Limits of the Structure encompasses the Subject Property and two other properties, generally known as of the date of this Agreement as 100 and 106 Lombardy Lane, Orinda. CA, APN 266- 082 -004 and 266- 082 -005 ( "Off Site Improvement Properties "), and more particularly described as: Lots 4 and 3, respectively, of said Sleepy Hollow Estates Map (34 M 18). E. Off -Site Improvement Properties Easement: District has a sanitary sewer easement on the Offsite Improvement Properties as shown on said Sleepy Hollow Estates Map (34 M 18). In addition, the District has an easement that encumbers 100 Lombardy Lane, Lot 4 of said Sleepy Hollow Estates Map (34 M 18), through a grant of easement deed recorded on February 19, 1951 in Book 1718, at Page 236, in the Official Records said County Recorder's Office (1718 OR 236). These easements described in this paragraph are hereafter collectively referred to as "Off -Site Improvement Properties Easement ". F. Encroachment Classiflcation: District has determined that the Structure constitutes as a Class One encroachment as defined in Chapter 7.15 of the District Code, but will generally not, other than in the case of repair, replacement, reconstruction, or maintenance, significantly interfere with the District's enjoyment of its easement rights. G. Project Proponent: The Owner is the project proponent of the Structure constructed across Subject Property and Off -Site Improvement Properties and has agreed to be fully responsible in regard to terms below for the Structure within all properties as described above. AGREEMENT NOW, THEREFORE, it is agreed between the parties as follows: 1. Subject Easement and Off -Site Improvement Properties Easement acknowledged. Owner acknowledges the right and interest of the District in the Subject Easement and the Off -Site Improvement Properties Easement and agrees never to assail or resist these interests. With the exception of the Improvement noted above and referred to as "the Structure ", the use of the surfaces of the Subject Easement shall be limited to paving, shrubbery, gardening and landscaping; and the following improvements and activities are specifically prohibited within the Subject Easement: trees or permanent structures, including but not limited to houses, garages, car ports, outbuildings, swimming pools, fountains, ponds, artificial streams, retaining walls generally parallel with the Subject Easement centerline, retaining walls transversely crossing the Subject Easement that require building permits (three feet or greater in height) or that have pier foundations or spread footings greater than eighteen - inches wide by twelve- inches thick, decks, barbeques, or any other improvement or activity which may interfere with the District's full enjoyment of its easement rights. Agreement Related to Real Property John and Stephanie Downs Page 3 of 5 Any such crossing of the Subject Easement centerline shall be at an angle with said centerline that measures between forty -five and ninety degrees [450 and 900], and have a minimum vertical clearance of six inches (6) between any utility service line and the public sewer. 2. The Structure may remain over the Subject Easement and Off -Site Improvement Properties Easement. By this Agreement, the District will permit the Structure, as constructed over and within the Subject Easement and Off -Site Improvement Properties Easement, to remain in place in strict accordance with the terms and conditions set forth in this Agreement. The Owner agrees not to replace, repair, remodel, reconstruct or alter the Structure in any way without the written consent of the District. 3. Indemnification for damage to District facilities. Owner is liable and responsible for and will answer to the District for damage to the District's facilities which are caused by the installation, construction, repair, replacement, maintenance, presence of or other activity associated with the Structure. 4. Indemnification for extra District costs due to existence of the Improvements. Owner is liable and responsible for and will answer to the District for additional costs of inspecting, constructing, installing, repairing, replacing, reconstructing, maintaining and operating District facilities when such additional costs arise out of or relate to the presence of the Structure within the Subject Easement and the Off -Site Improvement Properties Easement. If repair or replacement of the existing public sewer within the Subject Easement and the Off -Site Improvement Properties Easement becomes necessary, the location of the Structure may make it advisable to use a "no dig" trenchless technology such as inserting a liner in the existing pipe, installing a replacement pipe by pipe bursting or directional drilling rather than using conventional "open trench" construction. Use of trenchless technology may be more expensive than utilizing an open trench method if only the cost of pipeline renovation work is considered, but may be less expensive than using the open trench method when the cost of removing and replacing the Structure is also considered. If repair or replacement work is contemplated by the District, its representatives will meet and confer with the Owner to discuss the feasibility and cost of alternative construction methods. Following the meet and confer process, the Owner shall select the construction method to be used within the Subject Easement and the Off -Site Improvement Properties Easement. If the selected construction method is more expensive to the District than another feasible alternative, then the Owner will be responsible for such added expense. Use of trenchless technology may require digging pits at both ends of the public sewer being repaired or replaced. Some trenchless technologies create vibrations in nearby man -made features such as the Structure or adjacent buildings, and may cause minor damage to those man -made features. Agreement Related to Real Property John and Stephanie Downs Page 4 of 5 5. Liability for Damage. Owner agrees: (a) to hold the District free and harmless from any and all claims and actions brought against it by reason of any alleged damage to any of the Owner's Property and the Off -Site Improvement Properties which are the subject of this Agreement, including but not limited to the Structure, which alleged damage arises out of the inspection, use, maintenance, installation, construction, alteration, reconstruction, replacement, repair and operation of District facilities to the extent that the alleged damage results in whole or in part from presence, use or maintenance of the Structure; and (b) to defend and indemnify the District in any actions brought by persons seeking to enforce any and all claims set out in paragraph (a) above. This obligation for the Owner to hold harmless, defend and indemnify the District shall not extend to alleged damage or injury arising out of the District's sole or active negligence, intentional acts or willful misconduct. 6. Removal of the Improvement. Permission for presence of the Structure within the Subject Easement and the Off -Site Improvement Properties Easement under this Agreement may be revoked at any time if the District reasonably determines that the Structure is harmful or detrimental to the use of the Subject Easement and the Off -Site Improvement Properties Easement or that removal of the Structure within the Subject Easement and the Off -Site Improvement Properties Easement is reasonably necessary for actual imminent access required for proper enjoyment of the District's rights thereto. Such a determination by the District will not be made prior to the District's representatives having met and conferred with the Owner regarding the nature and severity of the perceived harmful or detrimental effects necessitating removal of the Structure, and potential mitigation measures or safeguards that the Owner may be able to implement to ameliorate said harmful or detrimental effects and /or allow for the District's proper enjoyment of its easement rights through the Owner's provision of an alternative means of access acceptable to the District. If the right of the Owner to maintain the Structure within the Subject Easement and the Off -Site Improvement Properties Easement is revoked by the District, the Owner agrees to remove said Structure, within ninety (90) calendar days of receipt of written notice from District to do so, unless the Owner and the District agree to an alternative mutually acceptable schedule. In the case of emergency, as reasonably determined by the District, the District may cause any of the Structure to be removed immediately, with or without notice to the Owner. 7. Agreement binds successors in interest. This Agreement pertains to and shall run with the above - referenced Subject Property for the benefit thereof as a covenant running with the land, equitable servitude, or otherwise, and shall be binding on all parties having or acquiring any right, title or interest in the described real property or any part thereof, and their heirs, successors and assigns and shall be for the benefit of and be binding upon each owner and successor in interest of the owners thereof. Agreement Related to Real Property John and Stephanie Downs Page 5 of 5 8. Attorney's Fees. The prevailing party in any arbitration or lawsuit brought to interpret or enforce the terms of this Agreement, or in any claims whether in contract, tort, or otherwise, arising directly or indirectly out of this Agreement or its performance, shall be entitled to recover its reasonable costs and attorneys' fees from the other party or parties, and the court or arbitrator shall award such attomeys' fees as an element of costs. For purposes of this provision, prevailing party shall include a party that dismisses an action for recovery hereunder in exchange for payment of the sum allegedly due, performance of covenants allegedly breached, or consideration substantially equal to the relief sought in the action or proceeding. Prevailing party shall not include a party who refuses an offer of compromise presented in writing at least ten (10) days before trial or arbitration of the matter, and who fails to receive an award more favorable than the terms and conditions set forth in the offer of compromise, either in the amount of damages awarded or in the type of relief granted. In witness whereof, the parties hereto have executed this instrument on the day first above written. OWNER: Jotp Stephens Downs Stellhanie Marlin Downs CENTRAL CONTRA COSTA SANITARY DISTRICT: PLS SEE ATTACHED CA ACKNOWLEDGMENT James A. Nejedly President of the Board of Directors Central Contra Costa Sanitary District County of Contra Costa, State of California COUNTERSIGNED: Elaine R. Boehme, CIVIC Secretary of the Central Contra Costa Sanitary District County of Contra Costa, State of California Approved as to form: Kenton L. Alm, Counsel for the District California All - Purpose Acknowledgment Form State of California S.S. City & County of San Francisco On Aon"(20 , before me, E& O? Wt_, Notary Public, personally appeared: 61 �Wmv OakU ,who proved to me on the basis of satisfactory evidence to be the persons} whose name(s) is/ere subscribed to the within instrument and acknowledged to me that he /she /grey executed the same in his /her /their authorized capacity(jes), and that by his /,►er /their signatureW on the instrument the person(4 or the entity upon behalf of which the person( 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 mAand and, official seal. Public OPTIONAL: " . Attached Documen ANDRIEW F. _._ " � GpMM. #1966230 r '0 N��FRANctsw coUNTY MY Comm. Explre� Fep 7, p •• Capacity claimed by signer: &44AV"' Signer is representing: l i n 7 SS t �r >5 �7 } CERTIFICATE OF ACKNOWLEDGMENT California All- Purpose Acknowledgment �- ^-,,, State of California County of Contra Costa On Xor 1 1-:5, &M2) before me, L i r`d.CI. "o a ��? 11 , Notary Public, T —Sate 1 Name of cer personally appeared ame ot blgoff sS) r who proved to me on the basis of satisfactory evidence to be the person(s) whose name(4 '{ is/are subscribed to the within instrument and acknowledged to me that Wshe/t4ay executed the same in -his/her /their authorized capacity(ies), and that by hiwber/th s signature(s') on the instrument the person(,s'S, or the entity upon behalf of which the person(4 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. 5808 •- UNDA HEASELL COMM. #188 NO?AHYPUBIIC- CAUMMA NT i < 0 COMC08TACOUMV Vj Caae. e0n0cL is 2M3 Above gnatilte-01 Notary rU011C Place Notary Seal il Description of Attached Document Title or Type of Document: jtit� 40 �cop2z� a _ Document Date: Number of Pages: Sipers(s) other than named above: