HomeMy WebLinkAbout14 - Vacation and Abandonment of Avocado Avenue11
May 10, 1999
CITY COUNCIL AGENDA
ITEM NO. 14
TO: Mayor And Members Of The City Council
FROM: Public Works Department
SUBJECT: VACATION AND ABANDONMENT OF A PORTION OF AVOCADO
AVENUE, LOCATED BETWEEN PACIFIC DRIVE AND WATERFRONT
DRIVE IN THE CORONA DEL MAR AREA
RECOMMENDATIONS:
1. Hold public hearing; close hearing.
2. If desired, (a) adopt Resolution No. 99 - ordering the vacation and abandonment
of a portion of unused right -of -way along the westerly side of Avocado Avenue,
between Pacific Drive and Waterfront Drive, adjacent to 401 Avocado Avenue; and
(b) direct the City Clerk to have the resolution recorded by the Orange County
Recorder.
DISCUSSION:
The Avocado Avenue right -of -way between Pacific Drive and Waterfront Drive is a 50
foot wide easement with the underlying ownership belonging to the adjacent property
owners. The 23 feet of Avocado Avenue right -of -way to be vacated will revert back to
Kathryn and Charles Wheeler who have the underlying fee ownership. Item No. 7 on
Page 3 of the attached Title Report, dated March 17,1999, (Exhibit "C ") confirms that
Avocado Avenue is an easement dedicated with Corona del Mar Tract, Tract No. 682,
Tract No. 2813 and various instruments of record.
Avocado Avenue is a one -way street between Pacific Drive and Waterfront Drive with the
easterly 27 feet of the 50 foot right -of -way improved. The existing improvements are not
wide enough to allow parking and the passage of large vehicles such as refuse trucks
and fire engines. The Traffic Affairs Committee has met several times over the past
few years to address these issues. The Fire & Marine Department has expressed
concern over their ability to respond with large equipment in this area. The residents
along the easterly side of Avocado Avenue do not want to lose the two parking spaces
that already exist.
Staff has negotiated a fair resolution to the concerns of all parties. Mrs. Wheeler owns
the property along the west side of Avocado Avenue. She has agreed to pay for the
construction of a two -space parking bay on the east side of Avocado Avenue in return
for the City abandoning the unimproved portion of the street. The City's abandonment
SUBJECT: VACATION AND ABANDONMENT OF A PORTION OF AVOCADO AVENUE, LOCATED BETWEEN PACIFIC
DRIVE AND WATERFRONT DRIVE IN THE CORONA DEL MAR AREA.
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May 10, 1999
of that portion of Avocado Avenue assures Mrs. Wheeler that the City will not widen the
street; there will be adequate width to accommodate large vehicles; and the neighbors
will have a parking bay. The construction of the parking bay along the easterly side of
Avocado Avenue assures that the proposed area to be vacated will not be needed for
present or prospective public use.
Southern California Edison Company, Pacific Bell and the Southern California Gas
Company have no facilities in the area of Avocado Avenue to be abandoned. However,
the City has a sewer main in the area to be vacated and will reserve an easement for
sewer maintenance purposes.
A Notice of Vacation was published for 2 successive weeks prior to the hearing in the
official newspaper of the City of Newport Beach; and the property was posted at least two
(2) weeks before the day of the public hearing. The posted notices of the proposed
vacation were conspicuously posted along Avocado Avenue not more than 300 feet apart
using a minimum of 3 notices. The notices stated the day, hour, and place of the hearing.
Adoption of the recommended Council resolution will complete the statutory proceedings
to vacate a portion of Avocado Avenue right -of -way contiguous with 401 Avocado Avenue
as described in Exhibit "A" and depicted in Exhibit "B ".
Respectfully
submitted,
0r wv�—
Don Webb
Public Works Director
by:
Richard L. Hoffstadt, P.E.
Development Engineer
Attachments: Resolution
Exhibit A
Exhibit B
Exhibit C, Title Report
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\ \MIS_1\SYS \Users\PBW\Shared \COUNCIL \FY98 -99 \May- 10Wvocado Avenue.doc
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
is City Clerk
City of Newport Beach
P. O. Box 1768
Newport Beach, CA 92658-
8915
THIS SPACE FOR RECORDER'S USE ONLY.
Exempt Recording Request per Government Code 6103
RESOLUTION NO. 99-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH
ORDERING THE VACATION AND ABANDONMENT OF A PORTION OF AVOCADO
AVENUE ADJACENT TO 401 AVOCADO AVENUE; AND DIRECTING THE CITY
CLERK TO RECORD SAME WITH THE COUNTY RECORDER'S OFFICE
WHEREAS, the City Council of the City of Newport Beach, pursuant to the
provisions of the Public Streets, Highways and Service Easements Vacation Law (Section
8300 et sec l. of the Streets & Highways Code) is authorized to vacate a portion of a public
easement; and
WHEREAS, the City Council of the City of Newport Beach has reviewed and
considered the various elements of the General Plan of the City of Newport Beach prior to
considering the vacation of this portion of public easement and has determined that the
proposed vacation is of a minor nature and is consistent with the General Plan; and
WHEREAS, the City Council finds and determines from all of the evidence
submitted that the subject portion of Avocado Avenue described herein is unnecessary
for present or prospective public use; and
WHEREAS, the City Council of the City of Newport Beach desires to vacate the
portion of Avocado Avenue, legally described in the attached Exhibit "A" and depicted on
a map as Exhibit "B ", the vacation to be processed pursuant to the provisions of the
. Streets Highways and Service Easements Vacation Law; and
f:\ users\ pbw\dhoffstadt \resolub.ons \v- avocado-2.doc
WHEREAS, Notice to vacate and abandon the public easement was given in
accordance with California Streets & Highways Code, Section 8322 and 8323.
NOW, THEREFORE, be it resolved by the City Council of the City of Newport
Beach that the portion of street right -of -way legally described in the attached Exhibit "A ",
and depicted on the map as Exhibit "B" is hereby ordered vacated and abandoned,
RESERVING THEREFROM, an easement in the Avocado Avenue right -of -way for sewer
maintenance and construction purposes as shown on Exhibit "B ".
BE IT FURTHER RESOLVED that the City Clerk is hereby directed to have this
resolution recorded by the Orange County Recorder.
Adopted this day of ,1999
MAYOR
ATTEST:
CITY CLERK
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EXHIBIT "A"
That portion of Avocado Avenue in the City of Newport Beach, County of Orange, State of California
described as follows:
The northwesterly 23.00 feet of Avocado Avenue (formerly 27th Avenue), 50.00 feet wide, in Block 328
of Corona Del Mar Tract as shown on a map thereof filed in Book 3, Pages 41 and 42 of Miscellaneous
Maps in the office of the County Recorder of said County and the northwesterly 23.00 feet of Avocado
Averwe, 50.00 feet wide, as shown on map of Tract No. 682 filed in Book 20, Page 19 and as shown on
map of Tract No. 2813 filed in Book 94, Pages 45, 46 and 47 both of said Miscellaneous Maps, lying
southwesterly of the southeasterly prolongation of the northeasterly line of Lot 185 of said Tract No.
2813.
RESERVING therefrom an easement for sewer line purposes over said northwesterly 23.00 feet bounded
on the southwest by the northwesterly prolongation of the southwesterly line of the alley, 20.00 feet
wide, in said Block 328.
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EXHIBIT "B"
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EXHIBIT "c"
OR- 9931686
TITLE OFFICER - PASCHAL
First American Title Insurance Company
114 East Fifth Street, Santa Ana, California 92701
(P.O. Box 267, Santa Ana, California 92702)
(714) 558 -3211
CITY OF NEWPORT BEACH
3300 NEWPORT BLVD.
DEPARTMENT OF PUBLIC WORKS
NEWPORT BEACH, CALIFORNIA 92663
ATTN: PAUL MEDINA
YOUR NO. (AVOCADO AVE.)
IN RESPONSE TO THE ABOVE REFERENCED APPLICATION FOR A POLICY OF TITLE INSURANCE, THIS COMPANY HEREBY REPORTS THAT
IT IS PREPARED TO ISSUE, OR CAUSE TO BE ISSUED, AS OF THE DATE HEREOF, A POLICY OR POLICIES OF TITLE INSURANCE DESCRIBING
THE LAND AND THE ESTATE OR INTEREST THEREIN HEREINAFTER SEr FORTH, INSURING AGAINST LOSS WHICH MAYBE SUSTAINED BY
REASON OF ANY DEFECT, LIEN OR ENCUMBRANCE NOT SHOWN OR REFERRED TO AS AN EXCEPTION BELOW OR NOT EXCLUDED FROM
COVERAGE PURSUANT TO THE PRINTED SCHEDULES. CONDITIONS AND STIPULATIONS OF THE POLICY FORMS.
THE PRINTED EXCEPTIONS AND EXCLUSIONS FROM THE COVERAGE OF THE POLICY OR POLICIES ARE SET FORTH IN EXHIBIT A
ATTACHED. COPIES OF THE POLICY FORMS SHOULD BE READ. THEY ARE AVAILABLE FROM THE OFFICE WHICH ISSUED THIS REPORT.
THIS REPORT (AND ANY SUPPLEMENTS OR AMENDMENTS HERETO) IS ISSUED SOLELY FOR THE PURPOSE OF FACILITATING THE ISSUANCE
OF A POLICY OF TITLE INSURANCE AND NO LIABILITY IS ASSUMED HEREBY. IF IT IS DESIRED THAT LIABILITY BE ASSUMED PRIOR TO
THE ISSUANCE OF A POLICY OF TITLE INSURANCE, A BINDER OR COMMITMENT SHOULD BE REQUESTED.
PLEASE READ THE EXCEPTIONS SHOWN OR REFERRED TO BELOW AND THE EXCEPTIONS AND
EXCLUSIONS SET FORTH IN EXHIBIT A OF THIS REPORT CAREFULLY. THE EXCEPTIONS AND
EXCLUSIONS ARE MEANT TO PROVIDE YOU WITH NOTICE OF MATTERS WHICH ARE NOT COVERED
UNDER THE TERMS OF THE TITLE INSURANCE POLICY AND SHOULD BE CAREFULLY CONSIDERED.
IT IS IMPORTANT TO NOTE THAT THIS PRELIMINARY REPORT IS NOT A WRITTEN REPRESENTATION AS
TO THE CONDITION OF TITLE AND MAY NOT LIST ALL LIENS, DEFECTS, AND ENCUMBRANCES
AFFECTING TITLE TO THE LAND.
DATED AS OF MARCH 17, 1999 AT 7:30 A.M.
�d' IEFFERY C. PASCHAL -TITLE OFFICER
DIRECT TELEPHONE NUMBER- (714) 647 -4456
FAX NUMBER - (714) 550.7195
THE FORM OF POLICY OF TITLE INSURANCE CONTEMPLATED BY THIS REPORT IS:
AMERICAN LAND TITLE ASSOCIATION OWNERS POLICY.
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OR- 9931686
TITLE OFFICER - PASCHAL
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TITLE TO THE ESTATE OR INTEREST AT THE DATE HEREOF IS VESTED IN:
KATHRYN LILLARD WHEELER AND CHARLES STETSON WHEELER, III, AS TRUSTEES UNDER THAT
CERTAIN DECLARATION OF TRUST ESTABLISHED BY KATHRYN LILLARD WHEELER AS TRUSTOR,
UNDER DATE OF JUNE 11, 1964.
THE ESTATE OR INTEREST IN THE LAND HEREINAFTER DESCRIBED OR REFERRED TO COVERED BY THIS REPORT IS:
A FEE.
AT THE DATE HEREOF EXCEPTIONS TO COVERAGE IN ADDITION TO THE PRINTED EXCEPTIONS AND EXCLUSIONS IN THE POLICY FORM
WOULD BE AS FOLLOWS:
I. GENERAL AND SPECIAL TAXES FOR THE FISCAL YEAR 1999 -2000, A LIEN NOT YET DUE OR
PAYABLE.
2. GENERAL AND SPECIAL TAXES FOR THE FISCAL YEAR 1998 -1999, NOW A LIEN NOT YET
DELINQUENT.
FIRST INSTALLMENT: $(NO TAXES DUE).
SECOND INSTALLMENT: $(NO TAXES DUE).
CODE AREA: 07 -001.
A. P. NO.: 050- 336 -29.
3. THE LIEN OF SUPPLEMENTAL TAXES ASSESSED PURSUANT TO CHAPTER 3.5 COMMENCING
WITH SECTION 75 OF THE CALIFORNIA REVENUE AND TAXATION CODE.
4. AN AGREEMENT TO PROVIDE A MAIN TELEPHONE CONDUIT SYSTEM AND TELEPHONE
SERVICE TO SAID LAND, EXECUTED BY THE THEN RECORD OWNER OF SAID LAND AND THE
PACIFIC TELEPHONE AND TELEGRAPH COMPANY, RECORDED IN BOOK 4342, PAGE 144, OFFICIAL
RECORDS.
5. A PERPETUAL AVIGATION EASEMENT IN AND THROUGH THE AIR ABOVE THE HEREIN
DESCRIBED AND OTHER LAND, AS CONVEYED TO THE COUNTY OF ORANGE BY THE IRVINE
COMPANY, BY DEED RECORDED MARCH 17, 1964 IN BOOK 6965, PAGE 721 OF OFFICIAL RECORDS,
AND THE TERMS AND CONDITIONS AS SET FORTH IN SAID DEED TO WHICH RECORD REFERENCE
IS HEREBY MADE FOR ALL PARTICULARS.
6. AN EASEMENT FOR EITHER OR BOTH UNDERGROUND LINES, CONDUITS AND INCIDENTAL
PURPOSES, INCLUDING ABOVE - GROUND APPURTENANT FIXTURES, AS SET FORTH IN AN
INSTRUMENT RECORDED OCTOBER 22, 1991 AS INSTRUMENT NO. 91- 575101 OF OFFICIAL RECORDS.
OVER: A PORTION OF THE LAND
NOTE: THE LEGAL DESCRIPTION CONTAINED IN SAID DOCUMENT IS INCOMPLETE.
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OR- 9931686
TITLE OFFICER - PASCHAL
7. AN EASEMENT AS SHOWN ON THE MAP OF THE CORONA DEL MAR TRACT, TRACT 682, TRACT
2813 AND IN VARIOUS INSTRUMENTS OF RECORD.
FOR: STREET, ROAD AND INCIDENTAL PURPOSES.
OVER: A PORTION OF THE LAND.
8. PRIOR TO THE ISSUANCE OF ANY POLICY OF TITLE INSURANCE, THIS OFFICE WILL REQUIRE
A FULL COPY OF THE TRUST REFERRED TO IN THE VESTING HEREIN, AND ANY AMENDMENTS
THERETO.
9. OUR STATEMENT OF CHARGES FOR THIS REPORT WILL FOLLOW. ANY REFERENCE HEREIN
FOR A POLICY OF TITLE INSURANCE IS HEREBY CANCELLED.
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OR- 9931686
TITLE OFFICER - PASCHAL
DESCRIPTION 0
THE LAND REFERREDTO IN THIS REPORTIS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF ORANGE, CITY
OF NEWPORT BEACH, AND IS DESCRIBED AS FOLLOWS:
THAT PORTION OF LOT 185 OF TRACT NO. 2813, AS SHOWN ON A MAP RECORDED IN BOOK 94,
PAGES 45, 46 AND 47 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA,
LYING WITHIN THE BOUNDARIES OF 1998 -1999 ASSESSORS PARCEL NUMBER 050- 336 -29.
NOTE: THE ABOVE LEGAL DESCRIPTION IS FOR THE SOLE PURPOSE OF THIS REPORT AND MAY
NOT BE CONSIDERED FOR USE IN ANY POLICY OF TITLE INSURANCE TO BE ISSUED BY THIS
COMPANY, AND IS SUBJECT TO CHANGE AT ANY TIME.
0
L �
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41
Is
OR- 9931686
TITLE OFFICER - PASCHAL
WARNING
"THE MAP ATTACHED HERETO MAY OR MAY NOT BE A SURVEY OF THE LAND
DEPICTED THEREON. YOU SHOULD NOT RELY UPON IT FOR ANY PURPOSE
OTHER THAN ORIENTATION TO THE GENERAL LOCATION OF THE PARCEL OR
PARCELS DEPICTED. FIRST AMERICAN EXPRESSLY DISCLAIMS ANY LIABILITY
FOR ALLEGED LOSS OR DAMAGE WHICH MAY RESULT FROM RELIANCE UPON
THIS MAP ".
TH
PLATS (CC &R'S, IF ANY) ENCLOSED.
NOTE 1: ACCORDING TO THE PUBLIC RECORDS, THERE HAVE BEEN NO DEEDS CONVEYING THE
PROPERTY IN THIS REPORT WITHIN A PERIOD OF SIX MONTHS PRIOR TO THE DATE OF THIS
REPORT, EXCEPT AS FOLLOWS:
1210721:1
NOTE 2: WIRING INSTRUCTIONS FOR SUB - ESCROW DEPOSITS ARE AS FOLLOWS:
FIRST AMERICAN TRUST COMPANY ACCOUNT x/15020 ABA x/122241255
114 E. FIFTH STREET ACCOUNT NAME: FIRST AMERICAN
SANTA ANA, CA 92701 TITLE COMPANY
CREDIT TO FIRST AMERICAN TITLE COMPANY
OR- 9931686 TITLE OFFICER - JEFFERY C. PASCHAL
DISREGARD IF FIRST AMERICAN IS YOUR ESCROW SETTLEMENT AGENT --
CONTACT ESCROW OFFICER FOR WIRING INSTRUCTIONS
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OR- 9931686
TITLE OFFICER - PASCHAL
NOTICE
SECTION 12413.1 OF THE CALIFORNIA INSURANCE CODE, EFFECTIVE JANUARY 1, 1990, REQUIRES THAT ANY TITLE
INSURANCE COMPANY, UNDERWRITTEN TITLE COMPANY, OR CONTROLLED ESCROW COMPANY HANDLING FUNDS
IN AN ESCROW OR SUB - ESCROW CAPACITY, WAIT A SPECIFIED NUMBER OF DAYS AFTER DEPOSITING FUNDS, BEFORE
RECORDING ANY DOCUMENTS IN CONNECTION WITH THE TRANSACTION OR DISBURSING FUNDS. THIS STATUTE
ALLOWS FOR FUNDS DEPOSITED BY WIRE TRANSFER TO BE DISBURSED THE SAME DAY AS DEPOSIT. IN THE CASE
OF CASHIER'S CHECKS OR CERTIFIED CHECKS, FUNDS MAYBE DISBURSEDTHE NEXT DAY AFTER DEPOSIT. IN ORDER
TO AVOID UNNECESSARY DELAYS OF THREE TO SEVEN DAYS, OR MORE, PLEASE USE WIRE TRANSFER, CASHIER'S
CHECKS, OR CERTIFIED CHECKS WHENEVER POSSIBLE.
IF YOU HAVE ANY QUESTIONS ABOUT THE EFFECT OF THIS NEW LAW, PLEASE CONTACT YOUR LOCAL FIRST
AMERICAN OFFICE FOR MORE DETAILS.
..............
NOTICE
IN ACCORDANCE WITH SECTIONS 18662 AND 18668 OF THE REVENUE AND TAXATION CODE, A BUYER MAY BE
REQUIRED TO W ITHHOLD AN AMOUNT EQUAL TO THREE AND ONE -THIRD PERCENT OF THE SALES PRICE IN THE CASE
OF THE DISPOSITION OF CALIFORNIA REAL PROPERTY INTEREST BY EITHER:
1. A SELLER WHO IS AN INDIVIDUAL WITH A LAST KNOWN STREET ADDRESS OUTSIDE OF
CALIFORNIA OR WHEN THE DISBURSEMENT INSTRUCTIONS AUTHORIZE THE PROCEEDS BE SENT TO A
FINANCIAL INTERMEDIARY OF THE SELLER, OR
2. A CORPORATE SELLER WHICH HAS NO PERMANENT PLACE OF BUSINESS IN CALIFORNIA.
THE BUYER MAY BECOME SUBJECT TO PENALTY FOR FAILURE TO WITHHOLD AN AMOUNT EQUAL TO THE
GREATER OF 10 PERCENT OF THE AMOUNT REQUIRED TO BE WITHHELD OR FIVE HUNDRED DOLLARS
($500).
HOWEVER, NOTWITHSTANDING ANY OTHER PROVISION INCLUDED IN THE CALIFORNIA STATUTES
REFERENCED ABOVE, NO BUYER WILL BE REQUIRED TO WITHHOLD ANY AMOUNT OR BE SUBJECT TO
PENALTY FOR FAILURE TO WITHHOLD IF:
1. THE SALES PRICE OF THE CALIFORNIA REAL PROPERTY CONVEYED DOES NOT EXCEED ONE
HUNDRED THOUSAND DOLLARS ($100,000), OR
2. THE SELLER EXECUTES A WRITTEN CERTIFICATE, UNDER THE PENALTY OF PERJURY,
CERTIFYING THAT THE SELLER IS A RESIDENTOF CALIFORNIA, OR IF A CORPORATION, HAS A PERMANENT
PLACE OF BUSINESS IN CALIFORNIA, OR
3. THE SELLER, WHO IS AN INDIVIDUAL, EXECUTES A WRITTEN CERTIFICATE, UNDER THE
PENALTY OF PERJURY, THAT THE CALIFORNIA REAL PROPERTY BEING CONVEYED IS THE SELLER'S
PRINCIPAL RESIDENCE (AS DEFINED IN SECTION 1034 OF THE INTERNAL REVENUE CODE).
THE SELLER IS SUBJECT TO PENALTY FOR KNOWINGLY FILING A FRAUDULENT CERTIFICATE FOR THE
PURPOSE OF AVOIDING THE WITHHOLDING REQUIREMENT.
THE CALIFORNIA STATUTES REFERENCED ABOVE INCLUDE PROVISIONS WHICH AUTHORIZE THE
FRANCHISE TAX BOARD TO GRANT REDUCED WITHHOLDING AND WAIVERS FROM WITHHOLDING ON A
CASE,BY -CASE BASIS.
THE PARTIES TO THIS TRANSACTION SHOULD SEEK AN ATTORNEY'S, ACCOUNTANT'S, OR OTHER TAX
SPECIALIST'S OPINION CONCERNING THE EFFECT OF THIS LAW ON THIS TRANSACTION AND SHOULD NOT
ACT ON ANY STATEMENTS MADE OR OMITTED BY THE ESCROW OR CLOSING OFFICER.
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