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HomeMy WebLinkAbout04.a. Review drft to adopt a resolution authorizing execution of a real property agreement for 2255 Ygnacio Valley Road, Walnut Creek Page 1 of 13 Item 4.a. CENTRAL SAN BOARD OF DIRECTORS . , , . POSITION PAPER . , 0 DRAFT MEETING DATE: MARCH 23, 2022 SUBJECT: REVIEW DRAFT POSITION PAPER TO ADOPT RESOLUTION NO. 2022- -AUTHORIZING EXECUTION OF A REAL PROPERTYAGREEMENT FOR PROPERTY LOCATED AT 2255 YGNACIO VALLEY ROAD, WALNUT CREEK, AND AUTHORIZING STAFF TO RECORD THE DOCUMENTS WITH THE CONTRA COSTA COUNTY RECORDER SUBMITTED BY: INITIATING DEPARTMENT: DAVID KRAMER, SENIOR RIGHT OF WAY ENGINEERING AND TECHNICAL SERVICES - AGENT PDS - DEVELOPMENT SERVICES - RIGHT OF WAY REVIEWED BY: DANA LAWSON, SENIOR ENGINEER DANEA GEMMELL, PLANNING & DEVELOPMENT SERVICES DIVISION MANAGER JEAN-MARC PETIT, DIRECTOR OF ENGINEERING & TECHNICAL SERVICES ISSUE A resolution of the Board of Directors (Board) is required to execute a real property agreement and to record the document with the Contra Costa County Recorder. BACKGROUND Staff received an application to review building plans from the property owner for the construction of solar panel carports. Staff identified that the conduit and panels for the solar carports would encroach across an existing sanitary sewer easement. Staff requested the property owner enter into a real property agreement for the proposed improvements that will encroach into Central San's easement and are classified as Class 2 encroachments under Chapter 7 of District Code. ALTERNATIVES/CONSIDERATIONS Reject the proposed improvements. This alternative is not recommended since the City of Walnut Creek issued a permit and the improvements were constructed, and only one length of panels overhangs the easement and the the property owner is willing to enter into the real property agreement in compliance with District Code. March 23, 2022 REEP Committee Meeting Agenda Packet- Page 4 of 44 Page 2 of 13 FINANCIAL IMPACTS A development-related fee was paid by the property owner for the real property agreement, as set by District Ordinance No. 310. COMMUNITY OUTREACH COMMITTEE RECOMMENDATION The Real Estate, Environmental and Planning Committee reviewed this matter at its meeting on March 23, 2022 and recommended RECOMMENDED BOARD ACTION Adopt a resolution authorizing execution of a real property agreement related to 2255 Ygnacio Valley Road, Walnut Creek, and authorizing staff to record documents with the Contra Costa County Recorder. Strategic Plan Tie-In GOAL ONE: Customer and Community Strategy 1—Deliver high-quality customer service GOAL FIVE:Infrastructure Reliability Strategy 1—Manage assets optimally to prolong their useful life ATTACHMENTS: 1. RPA signed by Property Owners 2. Proposed Resolution March 23, 2022 REEP Committee Meeting Agenda Packet- Page 5 of 44 ATTAC1414ENT 11 Recording requested W CAA ;lac- c.9. RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Central Contra Costa Sanitary District 5019 Imhoff Place Martinez,CA 94553 Attention: Planning and Development Services Division Manager EXEMPT FROM RECORDING FEES PER GOVERNMENT CODE§§6103,27383 APN-142-020-029 (SPACE ABOVE THIS LINE RESERVED FOR RECORDER'S USE) Job N0, 3021 AGREEMENT RELATING TO REAL PROPERTY This Agreement ("AGREEMENT') is made and entered into as of the dates hereinafter affixed, by and between PATRICK T. ELLWOOD AND DENISE A. ELLWOOD, husband and wife as community property with rights of survivorship as an undivided- 25% interest and BRADFORD R. HOWARD AND MARCIA A. HOWARD, Trustees of the Howard Family Trust of 2001 as to an undivided 2.083225% interest and BRADFORD R. HOWARD, Trustee of the Separate Share Trust FBO Bradford Howard as to an undivided 2.083225% interest and BRADFORD R. HOWARD, Trustee of The Separate Share Trust FBO Wendy Howard as to an undivided 2.083225% interest and WENDY D.F. HOWARD, an unmarried woman as to an undivided 2.083225% interest and BRADFORD R. HOWARD AND MARCIA A. HOWARD, Trustees of The Howard Family Trust of 2001, as to an undivided 113.666775%,interest; BRADFORD R. HOWARD, Trustee of The Separate Share Trust FBO Bradford Howard, as to an undivided 16.666775% interest; and BRADFORD R. HOWARD, Trustee of The Separate Share Trust FBO Wendy Howard, as to an undivided 16.666775% interest and WENDY D.F. HOWARD, a single woman as to an undivided 16.666775% interest, ("OWNERS") and CENTRAL CONTRA COSTA SANITARY DISTRICT, a California special district ("DISTRICT"). WITNESSETH WHEREAS, the Owners own real property in the City of Walnut Creek within Contra Costa County, State of California, generally known as of the date of this agreement as 2255 Ygnacio Valley Road (APN: 142-020-029), and more particularly described as follows: A Portion of Rancho San Miguel, as described in the Grant Deed Recorded June 21, 2018 DOC 2018-0092589, Official Records of Contra Costa County. Said real property hereinafter referred to as °Owners' Property"; and March 23, 2022 REEP Committee Meeting Agenda Packet- Page 6 of 44 Page 4 of 13 Agreement Related to Real Property Page 2 WHEREAS, the District has a sewer easement, (hereinafter referred to as "Easement") over the Owners' Property for public use for the purposes of constructing, laying, maintaining and operating sewer pipes therein and thereupon, and appurtenances and appliances together with the reasonable right of access to such easement for said purposes, which Easement was established via a Grant of Easement Recorded January 29, 1979, Contra Costa County Records. WHEREAS, the Owners desire to construct within the Easement electrical conduits and a solar canopy, the location of which is shown on attached Exhibit A, attached hereto and by this reference made a part hereof("the Improvements"), encroaches within this Easement, and the Owners have requested that the Improvements be allowed to be installed and allowed to remain. WHEREAS, the District has determined that the Improvements consYtute a Class Two encroachment as defined in Chapter 7.15 of the District Code, and interfere with the District's enjoyment of its easement rights. NOW, THEREFORE, it is agreed between the parties as follows: 1. Easement acknowledged. Owners expressly acknowledge the right and interest of the District in the Easement and agree never to assail o_r:resist these interests. With the exception of the Improvements noted above, the use of the surfaces of the Easement shall be limited to paving, shrubbery, gardening and landscaping; and the following improvements and activities are specifically prohibited within the Easement: trees or permanent structures, incAding but not limited to houses, garages, car ports, outbuildings, swimming pools, fountains, ponds, artificial streams, additional retaining walls generally parallel with the Easement centerline, additional retaining walls transversely crossing the 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 (Any such crossing shall be at an.-angle with said centerline that measures between forty-five and ninety degrees [451 and 901], and have a minimum vertical clearance of twelve inches P2") between any utility service line and the public sewer), decks, barbeques, or any other improvement or activity which may interfere with the District's full enjoyment of its easement rights. 2. Improvements may remain over the Easement. By this agreement, the District will permit the Improvements, as constructed over and within the Easement, to remain in place in strict accordance with the terms and conditions set forth in this agreement. The Owners agree not to replace, repair, remodel, reconstruct or alter the Improvements in any way without the written consent of the District. March 23, 2022 REEP Committee Meeting Agenda Packet- Page 7 of 44 Page 5 of 13 Agreement Related to Real Property Page 3 3. Indemnification for damage to District facilities. Owners are 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 Improvements. 4. Indemnification for extra District costs due to existence of the Improvements. Owners are 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 Improvements within the Easement. If repair or replacement of the existing public sewer within the Easement becomes necessary, the location of the Improvements may make it advisable to use a "no dig" trenchless technology such as i serting 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 cos-VO/'f removing and replacing the Improvements is also considered. If repair or replacement work is contemplated by the District, its representatives will meet,and confer with the Owners to discuss the feasibility and cost of alternative construction methods. Following the meet and confer process, the Owners shall select the construction method to be used within the Easement area. If the'selected construction method is more expensive to the District than another feasible alternative, then the Owners will be responsible for such added expdnse. 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 Improvements or adjacent buildings, and may cause minor damage to those man-made features. 5. Liability for Damage. Owners agree: (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 Owners; real or personal property, including but not limited to the Improvements, 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 March 23, 2022 REEP Committee Meeting Agenda Packet- Page 8 of 44 I Page 6 of 13 Agreement Related to Real Property Page 4 whole or in part from presence, USE! or maintenance of the Improvements; and (b) to defend and indemnify the�District in any actions brought by persons seeking to enforce any and all claims s6t out in paragraph (a) above. This obligation for the Owners 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 Improvements. Permission for presence of the Improvements within the Easement under this Agreement may be revoked at any time if the District reasonably determines that said Improvements are harmful or detrimental to the use of the Easement or that removal of the Improvements within the 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 Owners regarding ,the nature and severity of the perceived harmful or detrimental effects necessitating removal of the Improvements, and potential mitigation measures or safeguards that the Owners 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 Owners' provisio6 of an alternative means of access acceptable to the District. r If the right of the Owners to maintain the Improvements within the Easement is revoked by the District, the Owners agree to remove said Improvements, within ninety (90) calendar days of receipt of written notice from District to do so, unless the Owners and the District agree to an alternative mutually acceptable schedule. In the case of emergency, a reasonably determined by the District, the District may cause any of thdlmproements to be removed immediately, with or without notice to the Owners. f Should the Owners or any successor owners voluntarily remove the Improvements and request termination of this Agreement in writing, the District will quitclaim or rescind this Agreement and record any documents necessary to document that the Improvements have been removed and that the terms of this Agreement no longer apply to the Owners' Property. 7. Agreement binds successors in interest. This agreement pertains to and shall run kith the above-referenced real property for the benefit thereof as a covenant running with the land, equitable servitude, or otherwise, and shall be binding on all paries 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. i March 23, 2022 REEP Committee Meeting Agenda Packet- Page 9 of 44 1 Page 7 of 13 Agreement Related to Real Property Page 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 attorneys' 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, with attached Resolution, the parties hereto have executed this instrument on this 14 day of ctyA aYv, 2022/ OWNERS: Patrick T. Ellwood / Denise . I od radford R. Howard, TRE M cia A. Howar , TRE fvb7�-- radford R. Howard, TRE March 23, 2022 REEP Committee Meeting Agenda Packet- Page 10 of 44 Page 8 of 13 Agreement Related to Real Property Page 6 4Zv adford R. Howard, TRE end D. ar CENTRAL CONTRA COSTA SANITARY DISTRICT: / President of the Board of Directors Central Contra Costa Sanitary District County of Contra Costa, State of California COUNTERSIGNED: Fr r Katie Young Secretary of the District Central Contra Costa Sanitary District County of Contra Costa,,State of California 1 Approved as to forrtt: J Kenton L. Alm, Esq. Counsel for the District ATTACH NOTARY ACKNOWLEDGMENT(S) 2285815.1 March 23, 2022 REEP Committee Meeting Agenda Packet- Page 11 of 44 Page 9 of 13 EXHIBIT A THE IMPROVEMENTS Y �5°, e Z IMPROVEMENTS C.9�P, c- o zw Ll BIV o S7 Y1 5 ,e0 a bc- �oe ro S A �v 4-0.0 z- R% Grx 6 /p (E)SANITARY SEWER EASEMENT 1 7 0oR157 �' G iAPN:142-020029-5 I �ej a 7P g9 PROJECT ADDRESS: 2255 YGNACIO VALLEY ROAD ASSESSOR'S PARCEL NUMBER(APN): 142-020-029-5 i SCALE: L 1/128" = 1' DRAWN BY: G.L.J. I CHECKED BY:S.H. SCALED FOR:8.5 x 11 DATE:6 DECEMBER 2021 March 23, 2022 REEP Committee Meeting Agenda Packe - Page 12 of 44 Page 10 of 13 CALIFORNIA ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document. State of California CO L On County of r o rx� WS l f 1 Lt I e,� a z2 before me,Date Here Insert Name and Tit/4of the Officer— , personally appeared ��at"C K C �h t S /r } U;ood Nome(s)of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s)whose name(s) [subscribed to the within instrument and acknowledged to me that hq executed the same in4*-4htn*te authorized capacity(ies),and that by hir�tll'signature(s)on the instrument the person(s),or the entity upon behalf of which the person(s) acted, executed the instrument. *my NIKITRAHUDSON I certify under PENALTY OF PERJURY under the Notary Public•California laws of the State of California that the foregoing Alameda County Commission#2346301 paragraph is true and correct. Comm.Expires Feb 10,2025 WITNESS my hand and official seal. Signature Place Notary Seal and/or Stamp Above Signature of Notary Public OPTIONAL Completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Docyment Title or Type of Document: R`Aa*61 +0 Pr-e–1 RZO"' ' Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) CIa by S'(g�er s) Signer's Name: VGf C0 `l,A,,..4 Signer's Name: D "✓11 reC ❑ Corporate Officer-Title(s): ❑ Corporate Officer-Title(s): ❑ Partner- ❑ Limited ❑ General ❑ Partner- ❑ Limited ❑ General Z;4ndividual ❑ Attorney in Fact RHidividual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Trustee ❑ Guardian or Conservator ❑ Other: ❑ Other: Signer is Representing: Signer is Representing: 02019 National Notary Association March 23, 2022 REEP Committee Meeting Agenda Packet- Page 13 of 44 Page 11 of 13 I CALIFORNIA ACKNOWLEDGMENT CIVIL CODE §1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document. State of California County of On f � (i �i2 before me, N;Kt 11�(Jl f { v ut iG Date Here Insert Name and ,jtle of the Offic r personally appeared '✓ � �� � � �" Name(s)of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s)whose name(s)4&0 name(s)4&0subscribed to the within instrument and acknowledged to me that-#ek e/tOr executed the same in i ktcr/t ei authorized capacity(ies), and that by-W&A#ef/ire• signature(s)on the instrument the person(s), or the entity upon behalf of which the person(s)acted, executed the instrument. I certify under PENALTY OF PERJURY under the *my NIKITRAi1U050Nlaws of the State of California that the foregoing Notary Public-California paragraph is true and correct. Alameda County Commissions 2346301WITNESS m hand and official seal. Comm,Expires Feb 10,2025 y 14— Signature Place Notary Seat and/or Stamp Above Signature of Notary Public OPTIONAL Completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Cl . ed Sin r(s)�S Signer's Name: F, A- Signer's Name: Matin 11 Corporate Officer-Title(s): 13Corporate Officer-Title(s): ❑ Partner- ❑ Limited ❑ General ❑ Partner- ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Individual ❑ Attorney in Fact ,fi-Trustee ❑ Guardian or Conservator trustee ❑ Guardian or Conservator ❑ Other: ❑ Other: Signer is Representing: Signer is Representing: 02019 National Notary Association March 23, 2022 REEP Committee Meeting Agenda Packet- Page 14 of 44 1 Page 12 of 13 CALIFORNIA ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document. State of California County of 1 _ �c On 0(� ZH I.�22 before me,� dame � {"� Date Here! sert Name and Title of the fficer personally appeared Wcna�, 0.r t- ,w�� Name(s)of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s)whose name(s i subscribed to the within instrument and acknowledged to me thatim/dEP/tiiey executed the same in-hisflo/th>s1>' authorized capacity(ies), and that by-4is/( �signature(s) on the instrument the person(s),or the entity upon behalf of which the person(s) acted,executed the instrument. I certify under PENALTY OF PERJURY under the *my NIKrrRAHUDSON laws of the State of California that the foregoing Notary Public-California paragraph is true and correct. Alameca County Commission k 1346301 Comm.Expires Feb 10,2025 WITNESS my hand and official seal. Signature dve Ad42�::�, Place Notary Seal and/or Stamp Above Signature of Notary Public OPTIONAL. Completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document , Title or Type of Document: 0-6- ' "�a 'b i '�f0�'t' �— Document Date: Number of Pages: Signer(s)Other Than Named Above: Capacity(ies) Claimed hy Signer J Signer's Name: 1, � �+ �- Signer's Name: ❑Corporate Officer–Title(s): ❑ Corporate Officer–Title(s): ❑ Partner– ❑ Limited ❑ General ❑ Partner– ❑ Limited ❑ General &,Individual ❑ Attorney in Fact ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Trustee ❑ Guardian or Conservator ❑ Other: ❑ Other: Signer is Representing: Signer is Representing: 02019 National Notary Association March 23, 2022 REEP Committee Meeting Agenda Packet- Page 15 of 44 Page 13 of 13 ATTACHMENT 2 RESOLUTION NO. 2022- A RESOLUTION OF THE CENTRAL CONTRA COSTA SANITARY DISTRICT EXECUTING AND RECORDING A REAL PROPERTY AGREEMENT 2255 YGNACIO VALLEY ROAD, WALNUT CREEK, CA (APN: 142-020-029) BE IT RESOLVED by the Board of Directors of Central Contra Costa Sanitary District (Central San) as follows: THAT Central San hereby authorized to execute a Real Property Agreement with the following property owner related to the indicated property: Assessors' Parcel No.: 142-020-029 Property Owner(s): PATRICK T. ELLWOOD AND DENISE A. ELLWOOD, BRADFORD R. HOWARD AND MARCIA A. HOWARD, AND WENDY D.F. HOWARD Site Address: 2255 Ygnacio Valley Road, Walnut Creek, CA 94598 THAT the President of the Board of Directors and the Secretary of the District are hereby authorized to execute said documents for and on behalf of Central San; and THAT staff is authorized to record the documents in the office of the Recorder of Contra Costa County. PASSED AND ADOPTED this day of , 2022 by the Board of Directors of Central San by the following vote: AYES: Members: NOES: Members: ABSENT: Members: David Williams President of the Board of Directors Central Contra Costa Sanitary District County of Contra Costa, State of California COUNTERSIGNED: Katie Young 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 March 23, 2022 REEP Committee Meeting Agenda Packet- Page 16 of 44