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HomeMy WebLinkAboutRESOLUTIONS - 01012000 - 2000-158 q THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA Adopted this Order on April 4, 2000 by the following vote: AYES: SUPERVISORS GIOIA, UILKEMA, DESAULNIER, CANCIAMILLA AND GERBER NOES: NONE ABSENT: NONE ABSTAIN: NONE RESOLUTION NO.: 2000/158 SUBJECT: Approval of Acquisition of off-site Right-of-Way for Stone Valley Road, (SUB 8016), RA 1101, Alamo area. The Public Works Director having reported that in order to fulfill their subdivision and ordinance requirements the subdivider is required to install road and related improvements on lands owned by a private property owner(Nunes). The subdivider has been unable to obtain the necessary property rights and, therefore, has entered into an acquisition of off-site Right of Way Agreement with the County, whereby the County will obtain the necessary property rights and the subdivider will pay all related costs. The subdivider has agreed to waive Section 66462.5 of the Government Code which requires the County to obtain the land rights within 120 days, thereby allowing the developer time to continue to work with the property owners to obtain the necessary land rights after the map has been filed. The following documents were presented for Board approval this date: I. Acquisition of the off-site right of way agreement for Subdivision 8016 (RA 1101) with SummerHill Stone Valley Ltd., a California Limited Partnership by SummerHill Stone Valley Inc., a California Corporation, its General Partner, subdivider,whereby said subdivider agrees to pay all costs and expenses involved in acquiring off-site right of way from a private property owner (Babil R. and Dorothy E. Nunes) for construction of the off-site improvements required by the conditions of approval for Subdivision 8016. Said Acquisition of Off-site Right of Way Agreement accompanied by: A. Security to guarantee payment of costs and expenses to acquire land rights necessary for the construction of off-site improvements required by the subdivision Ordinance Code the Conditions of Approval for SUB 8016, as follows: 1. Cash Deposit Deposit Amount: $88,00.00 Deposit made by: SummerHill Stone Valley Ltd., a California Limited Partnership by SummerHill Stone Valley Inc., a California Corporation, its General Partner Auditor's Deposit Permit No. and Date: 347544; March 29, 2000 RESOLUTION NO. : 2000/158 SUBJECT: Approval of Acquisition of off-silRight-of-Way for Stone Valley Road, (SUB 8016), RA 1101, Alamo area. DATE: April 4, 2000 PAGE -2- 2. Surety Bond Bond Company: American Motorists Insurance Co. Bond Number and Date: 3SM 982 237 00; March 27, 2000 Performance Amount: $117,600.00 Principal: SummerHill Stone Valley Ltd., a California Limited Partnership by SummerHill Stone Valley Inc., a California Corporation, its General Partner NOW THEREFORE BE IT RESOLVED that said Acquisition of off site Right-of-Way Agreement is APPROVED. All deposit permits are on file with the Public Works Department. RL:kw G:\GrpData\EngSvc\BO\2000\BO 44-OO.doc Originator: Public Works(ES) Contact: Rich Lierly(313-2348) I hereby certify that this is a true and correct copy of an cc: Pubic Works- R.Bruno,Construction action taken and entered on the minutes of the Board of Current Planning,Community Development Supervisors on the date shown. SummerHill Stone Valley Ltd. I� 777 California Avenue Palo Alto,CA 94304 ATTESTED: April 4, 2000 PHIL BATCHELOR, Clerk of the Board of Supervisors and County Administrator By Deputy AGREEMENT (Acquisition of Off-Site Right-of-Way) 1. PARTIES. Effective on April 4, 2000 , the County of Contra Costa, referred to as the "County," and SummerHill stone valley referred to as the "Subdivider," agree as follows: 2. PURPOSE. The Subdivider is subdividing certain real property located within the County designated as Subdivision 8016 ,and, as a condition of approval of such subdivision, is required to construct or install certain off-site improvements consisting of widening stone valley Road to a 17-foot half-width along the north side of the road, and for additional width as needed to provide left-turn channelization into the subdivision 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. 3. ACQUISITION OF RIGHT-OF-WAY. The County agrees 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 COSTS. The Subdivider shall pay all costs and expenses of acquiring the Right-of-Way, including, but not limited to: a. The deposit necessary to obtain immediate possession of the Right-of-Way- b. The purchase price or compensation for the Right-of-Way, whether determined through settlement,judgment or otherwise. C. Relocation benefits, if any, payable to the owner(s) or tenants of the Right-of-Way. d. Compensation for loss of goodwill, if any,payable to the owner(s)or tenants of the Right-of- Way. e. Attorney's fees, costs of suit, appraisal fees and other litigation expenses incurred by the County, whether prior to trial, at trial, or on appeal. f. The cost of preparing environmental documents and of performing environmental review necessary to comply with the provision of the California Environmental Quality Act. g. Fees and costs payable upon abandonment of the condemnation proceedings. h. Fees and costs awarded upon a finding of no or insufficient public use or necessity. i. The cost of negotiation, relocation assistance or other services performed by the County. 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 necessary to obtain a Resolution of Necessity including 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 of 1970 (Pub. Resources Code Section 7260 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 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 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, 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 no later than 18 months after filing the eminent domain action. 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. 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 rate of 593.00 per hour. 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. DEPOSIT OF PRELIMINARY COSTS AND EXPENSES. At the time of executing this Agreement, the Subdivider shall deposit with the County the sum of'$8,000in cash, certified check or cashier's check, which sum shall cover the estimated costs and expenses described in section 4, 5, and 6 above. If, at any time, the deposit just described is exhausted, or is insufficient to cover costs or expenses incurred by the County, the County shall promptly 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. 9. DEPOSIT OF PROBABLE COMPENSATION. In those cases where the Subdivider has obtained an appraisal of the Right-of-Way prior to executing this Agreement, 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. In those cases where the Subdivider has not obtained an appraisal of the Right-of-Way prior to executing this Agreement, the Subdivider shall, at the time of submitting the appraisal required under Section 5, also make the deposit just described. An appraisal (check one): [ ] has been obtained. The probable amount of compensation to be deposited with the County is S_ [ x] has not been obtained, but .is estimated to be $80,000. Prior to the time the condemnation action is to be filed, Subdivider may make written application to the County to deposit with the Court the probable amount of compensation pursuant to Code Civil Procedure Section 1255.010. Said application must be made no later than 3 days following the adoption of the Resolution of Necessity by the Board of Supervisors and a copy of the application shall be sent to the County Counsel's Office. In the alternative,the Subdivider may make the Code of Civil Procedure Section 1255.010 deposit from other sources and upon proof thereof, request return of the amount of probable compensation from the County. If an increase of deposit is ordered by the court pursuant to Code of Civil Procedure Section 1255.030, the Subdivider shall deposit the amount of the increased deposit with the court, within 5 days of receipt of the court's order to increase the deposit. Any portion of the deposit (s) made by the Subdivider and retained by the County (as opposed to being deposited with the court) that is not used to cover costs or expenses incurred by the County shall be refunded to the Subdivider. 10. SECURITY FOR SUBDIVIDER'S OBLIGATIONS. At the time of executing this Agreement, the Subdivider shall, in addition to the deposits described in Sections 8 and 9, submit to the County a corporate surety bond, letter of creditor other security in the sum of$ 117,600.00 , 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 shall in no way limit the Subdivider's responsibility for payment of all costs and expenses described in Sections 4, 6 and 7. 11. RECORDS. The County shall maintain accurate records of all services performed by the County and all costs or expenses incurred by the County. 12. ACQUISITION TIME. Pursuant to Government Code Section 66462.5, the County is required to acquire the Right-of-Way by negotiation or commence condemnation proceedings within 120 days of the filing of the final map for Subdivision 8016 .This obligation has been assigned to the Subdivider by this Agreement. The final map was/will be filed on April 4, 2000 .Ifpossession of the off-site Right-0f-- Way has not been acquired within 60 days of the date of final map was filed, Subdivider shall notify the County Counsel's office of this fact in writing, no later than 65 days after the final map as filed. The Subdivider shall make all payments, and perform all obligations, required of the Subdivider under this agreement in a prompt manner, so as to meet the schedule imposed by Government Code Section 66462.5. Any time delay caused by or resulting from delay in payment of a delay in the performance of or failure to perform any act required by or related to this Agreement, for whatever reason, on the part of the Subdivider, the Subdivider's attorney or their agents or employees, or any time expended in complying with the requirements of the California Environmental Quality Act shall not apply against the 120-day time limit and shall not relieve the Subdivider of the obligation to complete off-site improvements. Subdivider agrees that the 120-day time limit shall be tolled for the period of the delay. Subdivider further agrees that if the 120-day time limit is exceeded as the result of any act of the Subdivider, Subdivider's attorney or their agents or employees, the Subdivider shall not be relieved of his obligation to construct or install the off-site improvements described herein. 13. 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. 14. 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 County of Contra Costa SummerHill Stone Valley Ltd, a California Limited Partnership by SummerHill Stone Valley Inc. , a California orporation, Its General Partner. By By "!�� Chair, d of Supervisors 9 E . 0 p ,e-t-� Cpiv ATTEST: Phil Batchelor, County Administrator and Clerk of the Board of Supervisors By By milktxl Deputy V VV RECOMMENDED FOR APPROVAL: 1� lWwl— J. Michael Walford, Public Works Director By Aw ^. FORM APPROVED: Victor J. Westman, County Counsel By 2/6, M \\PWSI\SHARDATA\GrpData\EngSvc\Fonns\AG WORD\AG-7.doc Rev.June 22.1999 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California ss. County of �; ,•,Aa OU(CA On 25�- 2a7JD , before me, A ele = �Q• �-1.\.�,�. (�csEoY... Q�L���c, 1 Date Name and Title of Officer(e.g.,)Jane Doe,Not ry blit") �? personally appeared Ta � C-=,,.,.r{�sc�V. �,..�� l�r�o fa- Stow i►.� , Name(s)of Signer(s) 0111 personally known to me ❑ proved to me on the basis of satisfactory evidence to be the person(g)) whose name(§) isi�j subscribed to the within instrument and HELEN M.ALLEN acknowledged to me that he/sh Ir�ie executed Commission# 1199214 the same in his/he eir authorized Z NotaryPUIDUC-COlifornia capacity(9 , and that by his/he eif SantaClore County signaturE on the instrument the person(sl, or !� MyCommanm.E�irestxt22.2D02 the entity upon behalf of which the persono acted, executed the instrument. WITNESS my hand and official seal. Place Notary Seal Above Signature of Notary Public hh OPTIONAL rhS' Though the information below is not required by law,it may prove valuable to persons relying on the document h rh and could prevent fraudulent removal and reattachment of this form to another document. Z� Description of Attached Do ument Title or Type of Document: Q.dt,� Document Date: Number of Pages: 5 Signer(s)Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: _ ❑ Individual Top or thumb Here - }'Corporate Officer—Title(s): /❑ Partner—❑ Limited ❑General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: ©1997 National Notary Association-9350 De Soto Ave.,P.O.Box 2402-Chatsworth,CA 91313-2402 Prod.No.5907 Reorder:Call Toll-Free 1-800-876-6827