Full Text
AGENDA BILL Agenda Item No. 5(D) Date: January 6, 2015 To: El Cerrito City Council From: Yvetteh Ortiz, Public Works Director/City Engineer Subject: Storm Drain Easement Agreement with Ohlone Gardens, L.P. ACTION REQUESTED Adopt a resolution authorizing the City Manager to execute an Easement Agreement with Ohlone Gardens, L.P. for public storm drain facilities located at 6493-6495 Portola Drive. BACKGROUND The Ohlone Gardens project is a 57-unit, mixed-use affordable rental development for families and persons with special needs located at 6493-6495 Portola Drive (new address assigned by City Building Official in October 2014). The project developer and property owner is Ohlone Gardens, L.P., an affiliate of Resources for Community Development. The El Cerrito Planning Commission originally approved a conditional use permit for the project on August 19, 2009 and the Design Review Board approved the design of the project on October 14, 2009. Time extensions to the project entitlements were approved by the Zoning Administrator on September 9, 2011 and Planning Commission on May 16, 2012. The City Council, acting as housing successor, adopted Resolution No. 2015-25 (April 17, 2012) approving the execution of a Loan Amendment to the existing Loan Agreement with the Ohlone Gardens, L.P., and approving a replacement plan for special needs units and supportive services. Most recently, on October 16, 2013, the Planning Commission approved a change to a previously approved conditional use permit to reduce the size of the commercial space from 4,650 square feet to 3,189 square feet reflecting a change in the supportive services to be provided to residential tenants. Project construction began in Spring 2014 and is anticipated to be completed in Summer 2015. ANALYSIS During the construction of the project, it was discovered that several existing public storm drain facilities, including 42-inch and larger diameter pipes and associated structures, which are currently maintained by the City, would have to be relocated because they were within the footprint of the building foundation. The storm drain facilities are collecting stormwater runoff from areas east of the project site. It was also discovered that the existing storm drain facilities were constructed on private property ---PAGE BREAK--- Agenda Item No. 5(0) without a recorded easement. The Easement Agreement is required to allow for City operation, inspection, maintenance, repair, replacement, and removal of public storm drain facilities on this private property as needed in the future. STRATEGIC PLAN CONSIDERATIONS Execution of the Easement Agreement is consistent with El Cerrito Strategic Plan Goal F - Foster environmental sustainability citywide. Specifically, approval of this action will support the "make municipal operations more resource efficient" strategy by clarifying the City's ownership and maintenance responsibilities in the future. ENVIRONMENTAL CONSIDERATIONS The City previously determined that the Ohlone Gardens project is categorically exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15332 (Class 32 - In-Fill Development Projects). In addition, the storm drain relocation work is categorically exempt from CEQA pursuant to Section 15302 (Class 2 - Replacement or Reconstruction) because the work is a reconstruction of existing utility facilities where the new utility facilities will be located on the same site as those replaced and will have substantially the same purpose as those replaced with negligible to no expansion of capacity. FINANCIAL CONSIDERATIONS Execution of the Easement Agreement will have no fiscal impact on the City. No funds are being exchanged for execution of the Easement Agreement. The property owner will provide an easement on its property according to the Agreement, granting the City access rights in perpetuity. The costs for relocating the storm drain facilities within the easement are paid for by the property owner. The City will continue to provide the same level of maintenance for these storm drain facilities so costs are not expected to increase beyond current levels on an annual basis. LEGAL CONSIDERATIONS The City Attorney has reviewed the proposed action and Easement Agreement, and found that legal considerations have been addressed. The Easement Agreement will be recorded with the Contra Costa County Recorder if approved by City Council. Scott Hanin, City Manager Attachments: 1. Accompanying Resolution 2. Easement Agreement Page 2 ---PAGE BREAK--- Agenda Item No. 5(D) Attachment 1 RESOLUTION 2014–XX RESOLUTION OF THE CITY COUNCIL OF THE CITY OF EL CERRITO AUTHORIZING THE CITY MANAGER TO EXECUTE AN EASEMENT AGREEMENT WITH OHLONE GARDENS, L.P. FOR PUBLIC STORM DRAIN FACILITIES LOCATED AT 6493-6495 PORTOLA DRIVE WHEREAS, the Ohlone Gardens is a 57-unit, mixed-use affordable rental development for families and persons with special needs located at 6493-6495 Portola Drive, and the project developer and property owner is Ohlone Gardens, L.P., an affiliate of Resources for Community Development; and WHEREAS, during the construction of the development project, it was discovered that several existing public storm drain facilities, which are currently maintained by the City, would have to be relocated because they were within the footprint of the building foundation; and WHEREAS, it was also discovered that the existing storm drain facilities were constructed on private property without a recorded easement; and WHEREAS, the City previously determined that the Ohlone Gardens project is categorically exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15332 (Class 32 - In-Fill Development Projects) and additionally the storm drain relocation work is categorically exempt from CEQA pursuant to Section 15302 (Class 2 – Replacement or Reconstruction) because the work is a reconstruction of existing utility facilities where the new utility facilities will be located on the same site as those replaced and will have substantially the same purpose as those replaced with negligible to no expansion of capacity; and WHEREAS, an Easement Agreement is required to allow for City operation, inspection, maintenance, repair, replacement, and removal of public storm drain facilities on this private property as needed in the future. NOW THEREFORE, BE IT RESOLVED by the City Council of the City of El Cerrito, that it hereby authorizes the City Manager to execute an Easement Agreement with Ohlone Gardens, L.P. for public storm drain facilities located at 6493-6495 Portola Drive. BE IT FURTHER RESOLVED, that this Resolution shall become effective immediately upon passage and adoption. I CERTIFY that at a regular meeting on January 6, 2015 the City Council of the City of El Cerrito passed this Resolution by the following vote: AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSTAIN: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: ---PAGE BREAK--- Page 2 IN WITNESS of this action, I sign this document and affix the corporate seal of the City of El Cerrito on January 6, 2015. Cheryl Morse, City Clerk APPROVED: Mark Friedman, Mayor ---PAGE BREAK--- easement - City Comment_2014 11 17 1 Recording Requested by and when recorded, return to: City of El Cerrito 10890 San Pablo Avenue El Cerrito, CA 94530 Attention: City Manager FOR RECORDER'S USE ONLY Free Recording Pursuant to Government Code §27383 EASEMENT AGREEMENT (Storm Drain Improvements) For and in consideration of the acceptance by the Grantee of the hereinafter described easement for public use and to enable relocation of storm drain facilities by OHLONE GARDENS, L.P., a California Limited Partnership (“Owner”), Owner hereby grants to CITY OF EL CERRITO (“Grantee”), an easement (the “Easement”) for the operation, inspection, maintenance, repair, replacement and removal of a storm drain pipe and associated storm drain structures under and through the real property described in Exhibit A and depicted on Exhibit B (the “Easement Area”), subject to the conditions stated in this Agreement. 1. Terms of Easement. The Easement shall burden the Easement Area, shall be non- exclusive, perpetual in duration (unless terminated by the written agreement of the Owner and the Grantee), and shall run with the land. 2. Non-Exclusive Use. The Owner may use the Easement Area, including the surface of the Easement Area, for any purpose which is not inconsistent with the Grantee’s permitted use of the Easement Area. However, neither party shall place or permit any temporary or permanent improvement of any nature on the Easement Area which might impair the parties’ respective rights to use the Easement Area. Moreover, Owner shall not erect any structure beyond that which is currently located or approved to be located within the Easement Area without obtaining the prior written approval of the Grantee 3. Grantee’s Obligations. In exercising its rights hereunder, the Grantee shall comply with the following conditions: The Grantee shall notify the Owner at least two business days prior to accessing the Easement Area for any purpose, except in the event of an emergency, in which case the Grantee shall give notice to the Owner as reasonable under the circumstances. Agenda Item No. 5(D) Attachment 2 ---PAGE BREAK--- easement - City Comment_2014 11 17 2 In performing activities under this Agreement, the Grantee shall not unreasonably impair the Owner’s use of the Easement Area. In the event Grantee anticipates activities that could materially affect access to the Owner’s property or improvements thereon, the Grantee shall provide at least five business days’ prior notice to the Owner to allow the Owner to inform its tenants and/or provide alternative means of access. The Grantee shall take all reasonable steps necessary to secure that portion of the Easement Area in which the Grantee is performing any activities. The Grantee shall be solely responsible for the cost of any activities permitted under this Agreement. Following the completion of any activities, the Grantee shall restore the Easement Area, including any surface improvements, to the condition existing prior to the commencement of such activities, reasonable wear and tear excepted, except for any improvements beyond those approved under Section 2 or otherwise approved in writing by the Grantee or that impair the Grantee’s rights to use the Easement Area. The Grantee shall defend, indemnify and hold the Owner harmless from and against losses, actions, demands, damages, claims, costs and expenses (including, but not limited to, experts fees and attorneys’ fees and costs) and liabilities of whatever kind or nature that arise out of or are in any way connected with the activities of the Grantee or any entity or individual acting under the Grantee’s direction or control under this Agreement, except and to the extent resulting from any gross negligence or willful misconduct of the Owner. The provisions of this Section 3 shall survive expiration or termination of this Agreement. 4. Default. The failure by a party to perform any covenant or obligation of such party hereunder and to cure such non-performance within twenty (20) business days after written notice by the other party shall constitute a default hereunder. Upon a default the aggrieved party shall be entitled to all remedies, legal and equitable, allowed by law, except termination of the Easement herein granted. 5. Amendments. This Agreement may be amended or otherwise modified only by a writing signed and recorded by the parties hereto. 6. No Third Party Beneficiaries. The provisions of this Agreement are for the exclusive benefit of the parties and their successors and assigns, subject to the provisions hereof. This Agreement shall not be deemed to confer any rights upon any person except the parties and their successors and assigns. 7. Attorneys' Fees. If either party brings an action or proceeding against the other by reason of a default, or otherwise arising out of this Agreement, the prevailing party in such action or proceeding shall be entitled to its costs and expenses of suit, including but not limited to reasonable attorneys' fees, which shall be payable whether or not such action is prosecuted to judgment. ---PAGE BREAK--- easement - City Comment_2014 11 17 3 8. Notices. All notices required shall be in writing and shall be deemed to have been given when hand delivered to the other party; or three business days after the same have been deposited in a United States post office with first-class or certified mail, return receipt requested, postage prepaid; or the next business day after same have been deposited with an overnight delivery service, provided that the sending party receives a confirmation of delivery from delivery service provider.. All notices shall be addressed as follows: To the Owner: Ohlone Gardens, L.P. c/o Resources for Community Development 2220 Oxford Street Berkeley, CA 94704 Attention: Executive Director To the City: The City of El Cerrito 10890 San Pablo Avenue El Cerrito, CA 94530Attn: Public Works Director/City Engineer 9. Recording: Easements to Run with the Land. This Agreement shall be recorded by the parties, and it is hereby agreed that the terms and conditions set forth in this Agreement shall be considered covenants running with the land. 10. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of California. 11. Miscellaneous Provisions. If any provision hereof shall be held invalid or unenforceable, the remainder hereof shall not be affected thereby, and each provision hereof shall be valid and enforceable to the fullest extent permitted by law. Time is of the essence with respect to the performance of every provision of this Agreement in which time of performance is a factor. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which, when taken together, shall constitute one document. Signatures on Following Pages ---PAGE BREAK--- easement - City Comment_2014 11 17 4 The parties have executed this Agreement as of the latest date indicated below. CITY: The City of El Cerrito By: Title: City Manager Date: OWNER: OHLONE GARDENS, L.P., a California limited partnership By: RCD GP LLC, a California limited liability company, its general partner By: Resources for Community Development, a California nonprofit public benefit corporation, its sole member/manager By: Daniel Sawislak Executive Director Date: SIGNATURES MUST BE NOTARIZED ---PAGE BREAK--- easement - City Comment_2014 11 17 5 State of California County of On before me Date personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their 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 laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Place Notary Seal Above Signature of Notary Public ---PAGE BREAK--- easement - City Comment_2014 11 17 6 State of California County of On before me Date personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their 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 laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Place Notary Seal Above Signature of Notary Public ---PAGE BREAK--- EXHIBIT Storm Drain Easement All that real property situated in the City of El Cerrito, County of Contra Costa, State of California, being a portion of Lot 41 an a portion of Lot 42, as said Lots 41 and 42 are shown on that certain Map entitled “Amended Map of the Schmidt and Fink Tract”, filed June 16, 1894 in Book D of Maps, at Page 80, in the Office of the County Recorder of Contra Costa County, more particularly described as follows: COMMENCING at the most Southerly corner of that parcel of land as described in that certain Grant Deed to Ohlone Gardens, L.P., a California limited liability company, recorded July 1, 2009 as Document Number 2009-0154574, Official Records of Contra Costa County; thence along the Northerly line of Portola Drive (formerly known as Fink Lane) as shown on that Record of Survey, filed March 15, 2010 in Book 142 of LSM, at Page 25, in the Office of the County Recorder of Contra Costa County, North 60°56’31” East, 107.83 feet to the POINT OF BEGINNING; thence leaving said Northerly line through the interior of said parcel, North 23°48’11” East, 21.16 feet; thence North 58°19’44” East, 19.93 feet; thence North 03°18’14” East, 37.23 feet to the Northeasterly line of that parcel of land as described in that certain Grant Deed to Ohlone Gardens, L.P., a California limited liability company, recorded July 1, 2009 as Document Number 2009-0154575, Official Records of Contra Costa County; thence along said Northeasterly line, South 31°40’24” East, 17.44 feet; thence leaving said Northeasterly line through the interior of said parcel, South 03°18’14” West, 28.15 feet; thence South 58°19’44” West, 22.03 feet; thence South 23°48’11” West, 4.85 feet to the Northerly line of Portola Drive; thence along said line, South 60°56’31” West, 16.56 feet to the POINT OF BEGINNING. CONTAINING 667 square feet, more or less. This real property description has been prepared by me, or under my direction, in conformance with the Professional Land Surveyors Act. JACQUELINE LUK, PLS 8934 DATE: 11/17/2014 ---PAGE BREAK--- easement - City Comment_2014 11 17 3 Exhibit B ---PAGE BREAK--- easement - City Comment_2014 11 17 1