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Home My WebLink AboutMINUTES - 11142006 - C.30 C-- -3 s � . L...0ontra TO: BOARD OF SUPERVISORS _ =_�; FROM: MAURICE M. SHN, PUBLIC WORKS DIRECTOR 8, wioap `„ ' , Costa --------OUR� DATE: November 14, 2006 County SUBJECT: APPROVE an Agreement with Lyon Vista Del Mar 533,LLC, Subdivision 8448,requesting the County to acquire off-site right of way for storm drain installation, Drainage Area 48B, Bay Point area, as recommended by the Public Works Director. (No General Fund impact) (District V) Project Number 0651-6L83PV SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION RECOMMENDED ACTION: APPROVE and AUTHORIZE the Chair, Board of Supervisors, or designee, to execute an agreement with Lyon Vista Del Mar 533, LLC, Subdivision 8448,requesting the County to acquire off-site right of way for storm drain installation in Bay Point Drainage Area 48B. FISCAL IMPACT: No impact to the General Fund. The developer will pay all costs and expenses of acquiring the right of way. CONTINUED ON ATTACHMENT: ❑x SIGNA �G RECOMMENDATION OF COUNTY ADMINISTRATOR COMMENDATIO F BOARD CO r APPROVE OTHER SIGNATURE(S): ,,� ACTION OF BOAON /V40V 67-A7 6G X- kPROVED AS RECOMMENDED OTHER VOTE OF SUPERVISORS: I HEREBY CERTIFY THAT THIS IS A TRUE AND CORRECT COPY OF AN ACTION TAKEN AND ENTERED ON UNANIMOUS(ABSENT ) MINUTES OF THE BOARD OF SUPERVISORS ON THE AYES: NOES: DATE SHOWN. ABSENT: ABSTAIN: Contact: Tim Jensen(925-313-2396) TJ:JS:cw G:\F1dCt1\Board Orders 2005 Onward\2006 BO\Vista Agree BO 11-14-06.doc ATTESTED � le, P10 � JOHN CULLEN,CLERK OF THE BOARD OF SUPERVISORS cc: Public Works: Karen Laws,Real Property Carla Pecciand,Real Property Slava Gospodchikov,Engineering Services BY: 'DEPUTY Flood Control SUBJECT: APPROVE an Agreement with Lyon Vista Del Mar 533, LLC, Subdivision 8448, requesting the County to acquire off-site right of way for storm drain installation, Drainage Area 48B, Bay Point area, as recommended by the Public Works Director. (No General Fund impact) (District V) Project Number 0651-6L83PV DATE: November 14, 2006 PAGE: 2 of 2 REASONS FOR RECOMMENDATIONS AND BACKGROUND: The Subdivider is subdividing certain real property located within the County designated as Subdivision 8448,Vista Del Mar, and, as a condition of approval of such subdivision, is required to construct or install certain off-site improvements consisting of. f 3930 lineal feet of storm drain within the unincorporated community of Bay Point, Contra Costa County. The construction or installation of the off-site improvements requires the acquisition of title to, or an interest in, certain land(referred to as the"Right-of-Way") located within the unincorporated area of the County, in which land neither the Subdivider nor the County presently has sufficient title or interest to permit the improvements to be made. The purpose of this Agreement is to provide for acquisition of the Right-of-Way and for payment by the Subdivider of all costs of acquiring the Right-of-Way. This Agreement fulfills the County's obligations under California Government Code Section 66462.5 (a) and (c). CONSEQUENCES OF NEGATIVE ACTION: The project will not have sufficient land rights for the required drainage improvements. AGREEMENT (Acquisition of Off-Site Right-of-Way) 1. PARTIES. Effective on November 14, 2006, the County of Contra Costa, referred to as the"County,"and Lyon Vista Del Mar 533,LLC, a Delaware Limited Liability Company referred to as the "Subdivider," agree as follows: 2. PURPOSE. The Subdivider is subdividing certain real property located within the County designated as Subdivision 8448, Vista Del Mar, and, as a condition of approval of such subdivision, is required to construct or install certain off-site improvements consisting of: f 3930 lineal feet of storm drain within the unincorporated community of Bay Point,Contra Costa County. The construction or installation of the off-site improvements requires the acquisition of title to,or an interest in,certain land(referred to as the"Right-of-Way")located within the unincorporated area of the County, in which land neither the Subdivider nor the County presently has sufficient title or interest to permit the improvements to be made. The purpose of this Agreement is to provide for acquisition of the Right-of-Way and for payment by the Subdivider of all costs of acquiring the Right-of-Way. This Agreement fulfills the County's obligations under California Government Code Section 66462.5 (a) and (c). 3. ACQUISITION OF RIGHT-OF-WAY.The County agrees,under the terms of this agreement,to consider the institution of condemnation proceedings to acquire the Right-of-Way,so as to enable the construction or installation of the off-site improvements described in Section 2, above,and in the conditions of approval for the Subdivider's subdivision. Should the County elect to institute condemnation proceedings, the County shall determine, in its sole discretion, whether to acquire the Right-of-Way in fee, by easement or otherwise, and whether to acquire title by deed, offer of dedication or other document.Title to the Right-of-Way shall be acquired in the name of the County or such other public entity as the County shall determine. The Right-of-Way is generally described or depicted in Exhibit"A"attached to and made a part of this Agreement. 4. PAYMENT OF ACQUISITION AND OTHER COSTS.At the time of executing this Agreement, the Subdivider shall pay all costs and expenses of acquiring the Right-of-Way, including but not limited to: A. DEPOSIT OF PRELIMINARY COSTS AND EXPENSES. At the time of executing this Agreement, the Subdivider shall deposit with the County the sum of THIRTY THOUSAND AND 00/100 DOLLARS ($30,000.00) in cash, certified check or cashier's check,which sum shall cover the estimated costs and expenses described in Sections 4A, 6 and 7. These costs include,but are not limited to:County staff costs;attorney's fees, appraisal fees and other litigation expenses incurred by the County;the cost of preparing environmental documents and of performing environmental review necessary to comply with the provision of the California Page 1 of 5 Environmental Quality Act ("CEQA"), including any supplemental documentation or review needed to meet CEQA requirements after this agreement has been signed; the cost of negotiation, relocation assistance or other services performed by the County. If, at any time, the deposit just described is exhausted, or is insufficient to cover costs or expenses incurred by the County, the Public Works Department shall notify the Subdivider in writing. Within 15 days of the date of such notice, the Subdivider shall deposit with the County the additional sum specified in the notice. Any portion of the deposit(s) made by the Subdivider that is not used to cover costs or expenses incurred by the County shall be refunded to the Subdivider. B. DEPOSIT OF PROBABLE COMPENSATION. Subdivider shall obtain a County approved appraisal of the Right-of-Way. The Subdivider shall,at the time of executing this Agreement, deposit with the County, in cash, certified check or cashier's check,the sum shown in the appraisal,which sum shall be used to obtain immediate possession of the Right-of-Way pursuant to Code of Civil Procedure Section 1255.010. The appraisal may include, but is not necessarily limited to: the deposit necessary to obtain immediate possession of the Right-of-Way; relocation benefits, if any; compensation for loss of goodwill, if any. Subdivider may make written application to the County for a County Warrant in the amount of the deposit of probable compensation made out to the Superior Court or the State Treasurer for use as the deposit required pursuant Code Civil Procedure Section 1255.010. In the alternative, the Subdivider may make the Code of Civil Procedure Section 1255.010 deposit from other sources and upon proof thereof, request return of the amount of probable compensation from the County. If an increase of deposit is ordered by the court pursuant to Code of Civil Procedure Section 1255.030,the Subdivider shall deposit the amount of the increased deposit with the court,within 5 days of receipt of the court's order to increase the deposit. Any portion of the deposit(s) made by the Subdivider that is not used to cover costs or expenses incurred by the County shall be refunded to the Subdivider. C. SECURITY FOR SUBDIVIDER'S OBLIGATIONS. At the time of executing this Agreement, the Subdivider shall, in addition to the deposits described in Sections A and B,submit to the County a corporate surety bond Page 2 of 5 or other County approved security in the sum of FIVE HUNDRED THOUSAND AND 00/100 DOLLARS ($500,000.00), which sum shall cover the estimated costs and expenses to be incurred by the County between the time immediate possession of the Right-of-Way is obtained and the time the eminent domain proceeding is finally concluded, as well as any potential additional compensation,benefits and attorney's fees that may be awarded to the owner (s) of the Right-of-Way in the eminent domain proceeding. The security submitted by the Subdivider shall be in a form acceptable to the County Counsel's office, shall list the County as beneficiary or payee, and shall guarantee the payment and performance of all obligations of the subdivider under this Agreement. Should the County file suit to collect the security submitted by the Subdivider, the Subdivider and the issuer of the security shall pay all costs, attorney's fees, investigation and expert fees, and other expenses incurred by this section and shall in no way limit the Subdivider's responsibility for payment of all costs and expenses described in Sections 4A.,4B., 6 and 7. The Subdivider's obligation to pay all costs and expenses of acquiring the Right-of-Way shall exist whether the County elects to institute condemnation proceedings or not. 5. No later than 10 days after the filing of the final map pursuant to Government Code Section 66457, the Subdivider shall provide the County with all information the County deems necessary to obtain a Resolution of Necessity including,but not limited to,the following documents and information in writing: a. The name and address of the owner(s)of the property,and any tenants on the property,the legal description(metes and bounds) and plat maps (drawn to scale) of the property to be condemned. b. Evidence of compliance with the California Environmental Quality Act ("CEQA") of 1970 (Pub. Resources Code Section 21000 et. seq.) C. A statement of all offers made to obtain the property by negotiation and copies of all correspondence indicating offers and responses, including evidence of an offer, which satisfies the requirements of Government Code Section 7267.2. d. A current title report and County-approved appraisal of the property. 6. LEGAL SERVICES. Upon election by the County to institute condemnation proceedings, the County Counsel's Office shall have supervision of the said condemnation action but the Subdivider's attorney shall perform all legal services required for said condemnation action, such as (a) commencing proceedings pursuant to Title 7 (commencing with Section 1230.010) of Part 3 of the Code of Civil Procedure to acquire an interest in the land which will permit the improvements to be made, including proceedings for immediate possession of the property under Article 3 (commencing with Section 1255.410) of Chapter 6 of such title, (b) all required legal appearances, (c) conducting the trial of said matter, and (d) handling any required post trial Page 3 of 5 proceedings, including appeals. Any attorney retained by the Subdivider shall be associated as special counsel for the County,but the County shall not be responsible for payment of the fees or expenses charged by such attorney. The Subdivider agrees that any attorney retained by the Subdivider shall conduct the legal proceedings without delay and in such a manner as to acquire the Right-of-Way as soon as practicable and consistent with the terms set forth in Section 9,Acquisition Time, below, but in no event shall the eminent domain action be filed later than 10 days after a Resolution of Necessity has been adopted by the Board of Supervisors. Title to the property (whether by fee,easement or otherwise)shall be acquired expeditiously and within a reasonable time after the case is filed. The Subdivider's attorney shall notify County Counsel in writing of the following events immediately upon their occurrence: the date eminent domain proceedings are commenced, the date possession of the property is obtained, and the date title to the property is obtained. Subdivider's attorney shall provide County with a copy of the judgment and final order or, if a settlement is reached, a dismissal. Subdivider's attorney shall not enter into a stipulation for judgment without prior written approval of County Counsel. Not withstanding the Subdivider's use of a private attorney,the County retains the right,in its sole discretion,at any time,to require that the County Counsel's Office resume exclusive handling of the legal proceedings until the Right-of-Way has been finally acquired, whether through settlement,judgment or otherwise. All services rendered by the County Counsel's Office will be charged to the Subdivider at the attorney's standard hourly rate, Rate One (1). The amount of this rate will be provided to the Subdivider upon request. Costs of suit,deposition fees,appraisal fees,telephone tolls,mileage,fax changes, delivery or mailing services and other expenses are additional and will be charged to the Subdivider at actual cost. 7. OTHER SERVICES.The County may perform such other services as the County,in its sole discretion,deems necessary for acquisition of the Right-of-Way.These may include,without limitation,negotiation and relocation assistance service provided by the Public Works Department (Real Property Division) and environmental review service provided by the Community Development Department. Such other services will be charged to the Subdivider at the County's fully burdened salary rate. 8. RECORDS.The County shall maintain accurate records of all services performed by the County and all costs or expenses incurred by the County. 9. ACQUISITION TIME. Pursuant to Government Code Section 66462.5(c), this document satisfies the County's requirements under Section 66462 and 66462.5 and relieves County from the requirement that the County acquire the Right-of-Way by negotiation or commence condemnation proceedings within 120 days of the filing of the final map for the Subdivision. Subdivider hereby waives any rights to enforce the 120 day timeframe under Section 66462.5. The final map,or final map relating to the Off-Site Right-of-Way,will be filed on or about November 15, 2006. Page 4 of 5 Subdivider agrees to file the eminent domain action no later than 10 days after the Board of Supervisors has adopted a Resolution of Necessity. If possession of the off-site Right-of-Way has not been acquired within 60 days of the date the final map was filed,Subdivider shall notify the Public Works Department and County Counsel's office of this fact in writing, no later than 65 days after the final map is filed. 10. HOLD HARMLESS. The Subdivider agrees to defend, indemnify, save and hold harmless the County,its boards,officers,employees and agents from and against any and all costs, expenses or liability incurred by the County or the Subdivider in-connection with the Subdivider's acts errors,or omissions pursuant to this Agreement,or otherwise related'directly or indirectly to the acquisition of the Right-of-Way, or the project to be constructed by the Subdivider. 11. SEVERABILITY. Should any provision of this Agreement be held to be invalid or unenforceable by a court of competent jurisdiction, such holding shall not affect the remaining provisions of this Agreement. COUNTY SUBDIVIDER COVCair, N COSTA LYON VISTA DEL MAR 533,LLC A Delaware Limited Liability Company By rd of Supervisors By: William Lyon Homes,Inc., a California Corporation,its Managing Member ATTEST: John Cullen, County Administrator and Clerk of the Board of Supervisorsy ' e . Mi ce Pre e t, Division Manager By ��Deputy Ti othy M. Cotton RECOMMENDED FOR APPROVAL: Assistant Secretary/Project Manager Maurice M. Shiu, Public Works Dir for By \J�n JS:kg G:\EngSvc\Fonns\AG WORDWG-7 U.doc Form Approved by County Counsel January 2005 Page 5 of 5 - ' � . -- _x �., �. '_ ext`•}�71f�� i�r't .� a� n 1_ T Kalil LII ri( Vn�ICS o jr,�'it _. N 3.��'i I � - N I ; r`a 1 V� _n m i (n y v T � m •1 Lo I .is »..... .....,. «.».. .......« .. :;. �,,, ..- •,,,,�� Dmt. ; �5 1i y II 5 !4- Ii( I1 I �. I�l .J�0.2 h I I� - Z•`rici l ( � 1 .( Zb' �� - �I�I.I 3 �jl•I�II � 'z � � - � '� w- - II ' ~I .. `- a va N' SEE SHEET 1 FOR CONTINUATION og R s -Z .Exhibit "A": Ordinance No. 2006-22, Amending Specified Sections of County Ordinance Code Chapter 450-8, Industrial Safety