HomeMy WebLinkAboutMINUTES - 05131997 - C11 TO. BOARD OF SUPERVISORS
FROM: J. MICHAEL WALFORD, PUBLIC WORKS DIRECTOR
DATE: May 13, 1997
SUBJECT: Off-Site Right-of-Way Acquisition Agreement for Drainage Area 30B, Storm Drain Line E,
in the Brentwood Area.
Project No.: 7546-6D8795, Subdivision 7476
SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION
I. Recommended Action: Approve the off-site storm drain easement right-of-way Acquisition
Agreement for Drainage Area 30B Line E through the Hanson property (parcel 018-230-034) in
the unincorporated Brentwood area.
II. Financial impact: None.
III. Reasons for Recommendations and Background: To ensure that the storm drain easement
for Drainage Area 30B, Line E is purchased at fair market value, Rural California Housing
Corporation has requested that Public Works Department staff acquire the right-of-way for
Drainage Area Line E through the Hanson property.
IV. Consequences of Negative Action: Rural California Housing will have to acquire the storm
drain easement themselves. The property owner might require higher than market value prices
for the easement from a private party. Consequently the developer might be obligated to pay
more for property than the Flood Control District could provide in reimbursement.
Continued on Attachment: SIGNATURE:
_RECOMMENDATION OF COUNTY ADMINISTRATOR
_RECOMMENDATION OF BOARD COMMITTEE
APPROVE OTHER
SIGNATURE(S):
ACTION OF BOARD ON 13J q APPROVED AS RECOMMENDED OTHER_
VOCE OF SUPERVISORS
��✓✓ UNANIMOUS (ABSENT )
AYES: NOES:
ABSENT: ABSTAIN:
HF:hf
g:XfldctlXfcbo\da30b.Ine
Orig.Flood Control District
Contact: Henry Finch(313-2316)
cc: .c. It hereW Cathy that this is a true and correct CM of
Real Property-Ron Babst �d of Supervt oors ond n the date shown mutes of the
Rural California Housing Corporation
2125-19th Street,Suite 101 Am" pF1tLt31►T R.G the rd
Sacramento,California 95818 dCountyAdmintstrstor
AGREEMENT
(Acquisition of Off-Site Right-of-Way)
1. PARTIES. Effective on , the COUNTY OF CONTRA COSTA,
referred to as the "County," and Rural California Housing Corp. , referred to as the
"Subdivider," agree as follows:
2. PURPOSE. The Subdivider is subdividing certain real property located within the
County designated as Subdivision 7476 ' and, as a condition of approval of such subdivision, is
required to construct or install certain off-site improvements consisting of a portion of Drainage
Area 30B, Line E through the Hanson property (APN 018-230-034). 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.
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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 § 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
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(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 $93.00 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 PRELBUNARY COSTS AND EXPENSES. At the time of executing
this Agreement, the Subdivider shall deposit with the County the sum of$12,000 in 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.
3
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 $
[X] has not been obtained. Based on an estimate from the Public Works Department
Real Propety Division, the appraised value is believed to be $12,000.00.
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 credit or other security in the sum of$33,000.00 ,
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
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.
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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 7476 . This obligation has been assigned
to the Subdivider by this Agreement. The final map was/will be filed on "date unknown" . If
possession of the off-site Right-of-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.
5
a
COUNTY SUBDIVIDER
County of Contra Costa
By- I ( BY
Chair, Board of Supervisors
ATTEST: Phil Batchelor, County
Administrator and Clerk of the By
Board of Supervisors
`M"-J- 3� 199
By, '
Deputy
RECOMMENDED FOR APPROVAL:
I Michael Walford, Public Works Dir for
By:
FORM APPROVED:
z
tor J. County Counsel
eputy
gAfIdctl\henry\7476agr.t3
rev. 12/8/94
6
State of 4Z
V
County of (5aJ or-411 �
On 3 I q-7 before me rTIMIC4
DATE NAME,TIME OF OFFICER-E.G,*JANE I)PE,NOTARY PUBLIC
personally appeared V h)� KAs-1 i"
NAME(S)S (S)
in the capacity as
bOWDUA"GENERAL FARTNM CORPORATE OFFr-EFt-E.G..VICE PRESIDENT
4ersonaliy known to me -OR-11 proved to me on the basis of satisfactory evidence to
be the person(s)whose name Is/are subscribed to the within
instrument and acknowledged to me that hehAeAhey executed
the same In his/he Abeir authorized capacity(es),and that by
hi~kefr signature(s)on the Instrument the person(s),or the
entity upon behalf of which the person(s)acted,executed the
instrument
Ell-le/SherPiq also acknowledged tome that such corporation executed the within instrument
pursuant to its by-laws or a resolution of its Board of Directors.
WITNESS my hand and official seat,
S
Corin.#1070761
jNOTARY PUBLIC-CALIFORNIA ry
SACRAMENTO COUNTY Signature of Not#
Comm. Exp. Aug. 27, 1999 -4
SIGNATURE REQUIREMENTS
Signatures required on documents must comply with the following to be acceptable to Contra Costa County.
1. FOR ALL SIGNATURES -The name and interest of the Signer should be typed or printed in the space provided.
The name must be signed exactly as R is typed or printed.
It. SIGNATURES FOR INDIVIDUALS-The name must be signed exactly as it is printed or typed. The signers
interest in the property must be stated.
Ill. SIGNATURES FOR PARTNERSHIPS-Signing party must be either a general partner or be authorized in writing
to have the authority to sign for and bind the partnership.
IV. SIGNATURES FOR CORPORATIONS
Documents should be signed by two officers,one from each of the following two groups:
GROUP 1. (a)The Chair of the Board GROUP 2. (a)The Secretary
(b)The President (b)An Assistant Secretary
(c)Any Vice-President (c)The Chief Financial Officer
(d)The Assistant Treasurer
9 signatures of officers from each of the above two groups do not appear on the Instrument a certified copy of a
resolution of the Board of Directors authorizing the person Signing the Instrument to execute Instruments of the type
in question is required. A currently valid power of attorney,notarized,wig suffice.
Notarization of only one corporate Signature or signatures from only one group,must contain the following phrase:
....and acknowledged to me that such corporation executed the within Instrument pursuant to its by-laws or a
resolution of its Board of Directors."
g.\engsvc\work\not5ry2.new
FEBRUARY 13 , 1997
9278-20
LEGAL. 1a
EXHIBIT "A"
I MM _ .ten us SLWY F:
ALL THAT REAL PROPERTY SITUATE IN THE UNINCORPORATED AREA OF CONTRA
COSTA COUNTY DESCRIBED AS FOLLOWS:
A PORTION OF THAT PARCEL OF LAND CONVEYED TO HENRY A. HANSON, A
TRUSTEE OF THE HENRY HANSON FAMILY TRUST, BY DEED RECORDED OCTOBER
10, 1994, IN THE OFFICE OF THE COUNTY RECORDER OF CONTRA COSTA
COUNTY AT SERIES 94-251733 , DESCRIBED AS FOLLOWS:
PARCEL ONE
AN EASEMENT FOR STORM DRAIN PURPOSES ON, OVER, UNDER, AND ACROSS A
STRIP OF LAND THE UNIFORM WIDTH OF 4.572 METERS, THE CENTERLINE OF
WHICH IS MORE PARTICULARLY DESCRIBED AS FOLLOWS :
COMMENCING AT A POINT ON THE WESTERN LINE OF SAID HANSON PARCEL
(94-251733) AT THE SOUTHEASTERN CORNER OF PARCEL "B" AS SAID PARCEL
IS SHOWN AND SO DESIGNATED ON PARCEL MAP MS 353-96 FILED FOR RECORD
IN SAID OFFICE OF THE COUNTY RECORDER IN BOOK 168 OF PARCEL MAPS AT
PAGE 48, AND RUNNING THENCE NORTHERLY ALONG THE WESTERN LINE OF
SAID HANSON PARCEL, BEING ALSO THE EASTERN LINE OF SAID PARCEL "B" ,
NORTH 01003 ' 11" EAST 44.871 METERS TO THE TRUE POINT OF BEGINNING
OF THE HEREIN DESCRIBED CENTERLINE; THENCE, FROM SAID POINT OF
BEGINNING, LEAVING SAID WESTERN LINE NORTH 89049' 05" EAST 29. 134
METERS; THENCE, ALONG THE ARC OF A TANGENT 121.920 METER RADIUS
CURVE TO THE LEFT THROUGH A CENTRAL ANGLE OF 22049'33" AN ARC
DISTANCE OF 48.571 METERS TO A POINT OF REVERSE CURVATURE; THENCE,
ALONG THE ARC OF A TANGENT 121.920 METER RADIUS CURVE TO THE RIGHT
THROUGH A CENTRAL ANGLE OF 22049'33" AN ARC DISTANCE OF 48.571
METERS; THENCE, TANGENT TO THE LAST NAMED CURVE NORTH 89°49'05"
EAST 109.613 METER TO THE WESTERN LINE OF TH, .. CERTAIN PARCEL OF
.LAND KNOWN AS MARSH CREEK CONVEYED TO CONTRA COSTA COUNTY FLOOD
CONTROL AND WATER CONSERVATION DISTRICT BY DEED RECORDED IN SAID
OFFICE OF THE COUNTY RECORDER IN BOOK 4705 OF OFFICIAL RECORDS AT
PAGE 102 AND THE POINT OF TERMINATION OF THE HEREIN DESCRIBED
CENTERLINE.
CONTAINING 1,078.49 SQUARE METERS OF LAND MORE OR LESS.
PARCEL TWO
A TEMPORARY CONSTRUCTION EASEMENT FOR THE PURPOSE OF CONSTRUCTING
STORM DRAIN FACILITIES WITHIN THE HEREINABOVE DESCRIBED PARCEL ONE
TO TERMINATE UPON THE FILING OF A NOTICE OF COMPLETION BY THE CITY
OF BRENTWOOD OR ON DECEMBER 31, 1998, WHICHEVER COMES FIRST,
DESCRIBED AS FOLLOWS:
A STRIP OF LAND THE UNIFORM WIDTH OF 12.192 METERS, THE CENTERLINE
OF WHICH IS IDENTICAL TO THE CENTERLINE OF HEREINABOVE DESCRIBED
PARCEL ONE.
EXCEPTING FROM PARCEL TWO ALL OF THE HEREINABOVE DESCRIBED PARCEL
ONE.
CONTAINING 1,797.48 SQUARE METERS OF LAND MORE OR LESS .
D ,ANDS(�9��1 END OF DESCRIPTION
J Q�
ROBERT E.BALD'NIW
PREPARED BY:
No.4307 E. BALDW I N
sT
L.S. 4367
�rF OF C F�P
EXPIRES 09/30/97
EXHIBIT 'B'
LONE TREE WA Y
HANSON
94--251733 >
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PLAT TO ACCOMPANY LEGAL DESCRIP110N
STORM -DRAIN EASEMENT
CONTRA COSTA COUNTY - CALIFORNIA
Prepared By
Luk, Milani & Associates
Civil Engineers — Land Planners — Land Surveyors
1465 Enea Circle #788
Concord, California 94520
FEBRUARY 1997 SCALE 1:2000 (METRIC)
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