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Home My WebLink About10-24-2017 Item 04 - El Capitan Bridge Meeting Date: 10/24/2017 FROM: Daryl Grigsby, Public Works Director Christine Dietrick, City Attorney Prepared By: Matt Horn, City Engineer Jon Ansolabehere, Assistant City Attorney SUBJECT: EL CAPITAN BRIDGE RECOMMENDATION 1. Authorize the Mayor to execute Easement Agreements between the City and the owners of Lot 7 of Tract 2294 (the Ackermans) and Lot 15 of Tract 2372 (Stonecreek HOA) in a form approved by the City Attorney; and 2. Authorize the inclusion of the El Capitan Bridge as a City asset, City maintenance responsibility, and prioritize the repair or replacement within the City’s 2017-19 Bridge Maintenance Capital Improvement Plan Project upon Easement Agreement execution; and 3. Accelerate Bridge Maintenance Funds from Fiscal Year 2018 -19 to 2017-18 to support this immediate need. DISCUSSION The El Capitan Bridge (“Bridge”) is a pedestrian bridge located at the end of El Capitan Way. An aerial photo of the bridge and its location is included as Attachment A. In January of 2015, a large eucalyptus tree fell on the Bridge causing substantial damage. A picture of the present condition of the Bridge is included as Attachment B. The City immediately closed the Bridge and investigated ownership since it was not listed as a City asset. Based on this investigation, City staff discovered that the Bridge spans three different properties – the City’s Open Space lot on Tract 2248 (the “Open Space Lot”), Lot 7 of Tract 2294 (“Lot 7”) and Lot 15 of Tract 2372 (the “HOA Lot”) – and that the ownership and responsibility to repair the Bridge was convoluted. History of the Bridge: Installation of the Bridge was part of the development of Tract 2294 which was a seven-unit residential subdivision along El Capitan Way. As part of that development, the City imposed conditions which required the developer to prepare a “creek preservation and maintenance agreement…” To satisfy these conditions, the developer recorded a “Creek Preservation and Maintenance Agreement” (the “Agreement”). Among other things, the Agreement required each of the seven owners to “…maintain the subject property (open space, creek and bridge) in a professional manner in perpetuity to the satisfaction of the City’s Public Works Director .” It appears this document requires the seven owners to perform major repairs of the Bridge. This arrangement has proven to be impractical. First, only a small portion of the Bridge is constructed within the tract’s boundaries and the Bridge clearly serves a much larger community. Second, from a practical perspective, no funding mechanism or insurance was established or otherwise required by the Agreement to fund maintenance responsibilities or protect these seven owners Packet Pg 11 4 from public liability from Bridge users. As a result, when repairs or maintenance work needs to be done, the property owners would need to generate the funding and determine the appropriate share for each of the seven owners. For these reasons, staff is recommending that the City accept responsibility for the Bridge and take on the repair costs and future maintenance responsibilities. In order for the City to assume responsibility of the Bridge, the City needs an easement over Lot 7 and the HOA Lot. At first, this seemed like a straightforward issue. However, after looking at title to each of the properties, staff realized that the HOA Lot was still owned by the original developer, Bergantz Development Corporation, which dissolved in 2013. Pursuant to Section 2.1.3 of the Stonecreek Development’s CC&Rs, the HOA Lot was supposed to be transferred to the HOA prior to the sale of the first property within the development. Evidently, that never occurred. Staff reached out to the former Officers and Directors of the company and eventually received confirmation that the HOA Lot would be transferred to the Stonecreek HOA. Once the HOA has title to the property, the HOA will grant the City an easement over a portion of the HOA Property to allow the City to maintain and repair the Bridge. Likewise, the owners of Lot 7 will grant the City an easement over a small portion of that property to allow maintenance and repair of the Bridge. Draft Easement Agreements are attached as Attachment D. Funding and Timing of Repair To support this immediate and unfunded need, staff is proposing to include the Bridge in the City’s 2017-19 Bridge Maintenance Capital Improvement Plan (CIP) Project, accelerating the funding one fiscal year, and prioritize this Bridge over others. Currently this CIP Project is planned to complete preventative maintenance on seven bridges. This maintenance is to prevent deterioration before it occurs and can be delayed for a short time without significant negative impact. Repair of the El Capitan bridge is a higher priority due to the pedestrian and bicycle accessibility and safety issues. If Council approves of this reprioritization of bridge repairs and acceleration of funding, staff will engage a structural engineering firm to evaluate the Bridge. They will determine whether repair or replacement is the most prudent action and will develop plans to publicly bid the project. When the project is ready to bid, staff will return to Council with a funding plan for construction costs. Based on preliminary estimates, staff is anticipating the cost of structural assessment and construction document preparation to be from $35,000 to $45,000. In addition, construction is anticipated between $75,000 to $100,000. Staff will be diligent to look at lower cost options that assure pedestrian safety and bridge structural integrity. These estimates are based on currently available information and are provided to Council as a cost range to consider when reviewing the project benefits. It should be noted that staff typically does not recommend assuming responsibility for a new asset not currently in the inventory or in Long Range plans. This recommendation is based on findings that indicate the City is the only answer to long-term maintenance and the structure is a community and public asset. ENVIRONMENTAL The City’s approval of the easement agreements is not a project under CEQA. Depending on the scope of the ultimate repair or replacement work, the project may be exempt from CEQA pursuant to CEQA Guidelines Section 15301 (Existing Facilities). Packet Pg 12 4 FISCAL IMPACT The Bridge Maintenance Capital Improvement Plan Project is listed in the 2017-19 Financial Plan pages E2-120 through E2-121 with funding in the amount of $50,000 which is available in the fiscal year 2018-19. In order to expedite this repair, staff is recommending accelerating these funds to the current fiscal. Based on known financial limitations, the most likely funding source for this construction work is the Road Repair and Accountability Act (SB1) funding. Once the scope of the bridge work is known and construction costs have been refined, staff will return to Council with a construction funding plan. This construction funding plan may be included in the 2019-21 Financial Plan process or by separate Council action. ALTERNATIVES The City Council could choose not to assume maintenance of the Bridge. This is not recommended because the Bridge is in poor repair and the original arrangement to maintain this improvement is impractical. Attachments: a - Bridge El Capitan Map b - Current Condition of El Capitan Bridge c - Easement Agreement - Stonecreek - Draft d - Easement Agreement - Ackerman - Draft Packet Pg 13 4 Packet Pg 144 Current Condition of El Capitan Bridge Packet Pg 15 4 Packet Pg 16 4 DRAFT 10.24.17 1 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of San Luis Obispo Attn: City Clerk 990 Palm Street San Luis Obispo, CA 93401 APN: 053-410-015; 034 NO RECORDING FEE – PUBLIC AGENCY – Gov. Code § 6103 GRANT OF EASEMENT AGREEMENT This Grant of Easement Agreement (this “Agreement”) is made as of this ___ day of _______, 2017, by and between Homeowners Association of Stone Creek Development, a ______________ (hereinafter “Grantor” or “Stone Creek”), and the City of San Luis Obispo, a municipal corporation and charter city (hereinafter “Grantee” or “City”). Grantor and Grantee are sometimes referred to herein as the “Parties.” RECITALS WHEREAS, Grantor is the owner of certain real property located in the City of San Luis Obispo, State of California, commonly referred to as Lot 15 of Tract 2372, Assessor Parcel Numbers: 053- 410-034 and as more particularly described in Exhibit A, attached hereto and incorporated herein by reference (the “Stone Creek Property”). WHEREAS, Grantee is the owner of certain real property adjacent to the Stone Creek Property, which is commonly known as APN: 053-410-015, and is more particularly described in Exhibit B, attached hereto and incorporated herein by reference (the “City Property”). WHEREAS, a pedestrian bridge (the “Bridge”) is located on the Stone Creek Property and the City Property as depicted in Exhibit C attached hereto and incorporated herein by this reference. WHEREAS, the Bridge was installed as part of a seven-unit development located along El Capitan Way commonly known as Tract 2294, however, the Bridge provides an important amenity to the surrounding community. As part of that development, the developer of Tract 2294 executed a “Creek Preservation and Maintenance Agreement” (“Bridge Maintenance Agreement”) which was recorded in the official records of San Luis Obispo County on May 30, 2000, as Document No. Packet Pg 17 4 DRAFT 10.24.17 2 2000-029502. Among other things, the Bridge Maintenance Agreement obligated the seven lots of Tract 2294 to maintain the Bridge in a professional manner in perpetuity to the satisfaction of the City’s Public Works Director. The City desires to assume responsibility for the maintenance, repair and replacement of the Bridge and by this Agreement, the Grantor desires to grant and Grantee desires to accept an easement on the Stone Creek Property in order for Grantee to maintain, repair and replace that portion of the Bridge located on the Stone Creek Property. AGREEMENT NOW, THEREFORE, Grantor grants the Easement (as hereinafter defined) to Grantee under the following terms and conditions: Section 1. Grant of Easement: Grantor hereby grants to Grantee an easement over, under, across, within and through a portion of the Stone Creek Property that is described and depicted in Exhibits C-1 and C-2, for the Easement Purposes, as defined in Section 2 of this Agreement (“Easement”), subject to all matters and encumbrances of record affecting the Stone Creek Property, on the terms and conditions set forth in this Agreement. Section 2. Easement Purposes: “Easement Purposes” collectively means use of the Stone Creek Property within the Easement area for the purposes of maintaining, repairing, replacing or removing the Bridge, and all appurtenances thereto. Section 3. Character of Easement The Easement is nonexclusive and in gross. Section 4. Term The Easement will be an easement in perpetuity and may only be terminated by the written mutual consent of the parties hereto or their successors in interest. Section 5. Maintenance and Repair Grantee will be responsible to maintain and repair the Easement in good condition and repair, including, but not limited to, the maintenance, repair or replacement of the Bridge, as Grantee deems reasonably necessary or advisable; provided, however, that if any such maintenance or repair is required in whole or in part by any act or omission of Grantor, its successors, assigns, tenants, customers or invitees, or the customers and invitees of such tenants, Grantor will be responsible for the cost of such maintenance and repair. Packet Pg 18 4 DRAFT 10.24.17 3 Section 6. Successors and Assigns The provisions of this Agreement are intended to and will run with the land, and, until their expiration or termination in accordance with the terms of this Agreement, will bind, be a charge upon and inure to the benefit of Grantor and Grantee, their respective successors and assigns. Section 7. Indemnification Grantee agrees to indemnify, defend and hold harmless Grantor, its agents, representatives, heirs, successors and assigns, against any and all claims, actions, or demands, costs or expense, including reasonable attorney's fees, arising out of or in any way connected to any activities of Grantee, its agents, representatives, heirs, successors, assigns or invitees arising out of its use, maintenance or repair of the Bridge excluding there from claims resulting from the gross negligence or willful misconduct of Grantor, or its successors, assigns, guests or invitees. Section 9. Notices All notices given pursuant to this Agreement must be in writing and by personal delivery, U.S. Mail or established express delivery service, such as Federal Express, with postage or delivery charge prepaid, return receipt requested, and addressed to the person and address designated below: If to Grantor: Stone Creek HOA [Address] If to Grantee: City of San Luis Obispo Attn: City Clerk 990 Palm Street San Luis Obispo, CA 93401 Section 10. Miscellaneous This Agreement constitutes the entire agreement between Grantor and Grantee relating to the Easement. Any prior agreements, promises, negotiations, or representations not expressly set forth in this Agreement are of no force and effect. Any amendment to this Agreement will be of no force and effect unless it is in writing and signed by Grantor and Grantee or their respective successors or assigns. Each of the individuals signing this Agreement on behalf of a party hereto warrants and represents that such individual is duly authorized and empowered to enter into this Agreement and bind such party hereto. Section 11. Signature/Counterparts This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Packet Pg 19 4 DRAFT 10.24.17 4 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set forth hereinabove. GRANTOR: Homeowners Association of Stone Creek Development __________________________________ Steven Thatcher Its: President: Date: GRANTEE: City of San Luis Obispo __________________________________ Heidi Harmon, Mayor Date: Attest __________________________________ Carrie Gallagher, City Clerk Approved as to Form: __________________________________ J. Christine Dietrick, City Attorney Packet Pg 20 4 DRAFT 10.24.17 5 Packet Pg 21 4 DRAFT 10.24.17 6 Packet Pg 22 4 DRAFT 10.24.17 7 Packet Pg 23 4 DRAFT 10.24.17 8 Packet Pg 24 4 DRAFT 9/18/17 1 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of San Luis Obispo Attn: City Clerk 990 Palm Street San Luis Obispo, CA 93401 APN: 053-410-015; 024 NO RECORDING FEE – PUBLIC AGENCY – Gov. Code § 6103 GRANT OF EASEMENT AGREEMENT This Grant of Easement Agreement (this “Agreement”) is made as of this ___ day of _______, 2017, by and between ____[NAME/Ackerman]____, __[INSERT VESTING BASED ON DEED]__ (hereinafter “Grantors”), and the City of San Luis Obispo, a municipal corporation and charter city (hereinafter “Grantee” or “City”). Grantor and Grantee are sometimes referred to herein as the “Parties.” RECITALS WHEREAS, Grantors are the owners of certain real property located in the City of San Luis Obispo, State of California, commonly referred to as 919 El Capitan Way, San Luis Obispo, Lot 7 of Tract 2294, Assessor Parcel Numbers: 053-410-024 and as more particularly described in Exhibit A, attached hereto and incorporated herein by reference (the “Ackerman Property”). WHEREAS, Grantee is the owner of certain real property adjacent to the Ackerman Property, which is commonly known as APN: 053-410-015, and is more particularly described in Exhibit B, attached hereto and incorporated herein by reference (the “City Property”). WHEREAS, a pedestrian bridge (the “Bridge”) is partially located on the Ackerman Property and the City Property as depicted in Exhibit C attached hereto and incorporated herein by this reference. WHEREAS, the Bridge was installed as part of a seven-unit development located along El Capitan Way commonly known as Tract 2294, however, the Bridge provides an important amenity to the surrounding community. As part of that development, the developer of Tract 2294 executed a “Creek Preservation and Maintenance Agreement” (“Bridge Maintenance Agreement”) which was Packet Pg 25 4 DRAFT 9/18/17 2 recorded in the official records of San Luis Obispo County on May 30, 2000, as Document No. 2000-029502. Among other things, the Bridge Maintenance Agreement obligated the seven lots of Tract 2294 to maintain the Bridge in a professional manner in perpetuity to the satisfaction of the City’s Public Works Director. The City desires to assume responsibility for the maintenance, repair and replacement of the Bridge and by this Agreement, Grantors desire to grant and Grantee desires to accept an easement on the Ackerman Property in order for Grantee to maintain, repair and replace that portion of the Bridge located on the Ackerman Property. AGREEMENT NOW, THEREFORE, Grantors grant the Easement (as hereinafter defined) to Grantee under the following terms and conditions: Section 1. Grant of Easement: Grantors hereby grant to Grantee an easement over, under, across, within and through a portion of the Ackerman Property that is depicted in Exhibit C, for the Easement Purposes, as defined in Section 2 of this Agreement (“Easement”), subject to all matters and encumbrances of record affecting the Ackerman Property, on the terms and conditions set forth in this Agreement. Section 2. Easement Purposes: “Easement Purposes” collectively means use of the Ackerman Property within the Easement area for the purposes of maintaining, repairing, replacing or removing the Bridge, and all appurtenances thereto. Section 3. Character of Easement The Easement is nonexclusive and in gross. Section 4. Term The Easement will be an easement in perpetuity and may only be terminated by the written mutual consent of the parties hereto or their successors in interest. Section 5. Maintenance and Repair Grantee will be responsible to maintain and repair the Easement in good condition and repair, including, but not limited to, the maintenance, repair or replacement of the Bridge, as Grantee deems reasonably necessary or advisable; provided, however, that if any such maintenance or repair is required in whole or in part by any act or omission of Grantors, its successors, assigns, tenants, customers or invitees, or the customers and invitees of such tenants, Grantors will be responsible for the cost of such maintenance and repair. Packet Pg 26 4 DRAFT 9/18/17 3 Section 6. Successors and Assigns The provisions of this Agreement are intended to and will run with the land, and, until their expiration or termination in accordance with the terms of this Agreement, will bind, be a charge upon and inure to the benefit of Grantors and Grantee, their respective successors and assigns. Section 7. Indemnification Grantee agrees to indemnify, defend and hold harmless Grantor, its agents, representatives, heirs, successors and assigns, against any and all claims, actions, or demands, costs or expense, including reasonable attorney's fees, arising out of or in any way connected to any activities of Grantee, its agents, representatives, heirs, successors, assigns or invitees arising out of its use, maintenance or repair of the Bridge excluding there from claims resulting from the gross negligence or willful misconduct of Grantors, or its successors, assigns, guests or invitees. Section 9. Notices All notices given pursuant to this Agreement must be in writing and by personal delivery, U.S. Mail or established express delivery service, such as Federal Express, with postage or delivery charge prepaid, return receipt requested, and addressed to the person and address designated below: If to Grantors: [Name] 919 El Capitan Way San Luis Obispo, CA 93401 If to Grantee: City of San Luis Obispo Attn: City Clerk 990 Palm Street San Luis Obispo, CA 93401 Section 10. Miscellaneous This Agreement constitutes the entire agreement between Grantors and Grantee relating to the Easement. Any prior agreements, promises, negotiations, or representations not expressly set forth in this Agreement are of no force and effect. Any amendment to this Agreement will be of no force and effect unless it is in writing and signed by Grantors and Grantee or their respective successors or assigns. Each of the individuals signing this Agreement on behalf of a party hereto warrants and represents that such individual is duly authorized and empowered to enter into this Agreement and bind such party hereto. Section 11. Signature/Counterparts This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Packet Pg 27 4 DRAFT 9/18/17 4 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set forth hereinabove. GRANTORS: ______________________________ [Name] ______________________________ [Name] GRANTEE: City of San Luis Obispo __________________________________ Heidi Harmon, Mayor Date: Attest __________________________________ Carrie Gallagher, City Clerk Approved as to Form: __________________________________ J. Christine Dietrick, City Attorney Packet Pg 28 4 DRAFT 9/18/17 5 Packet Pg 29 4 DRAFT 9/18/17 6 Packet Pg 30 4