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Home My WebLink AboutRES NO 022-09CITY OF BAKERSFIELD RESOLUTION OF NECESSITY DECLARING THE PUBLIC INTEREST AND NECESSITY FOR THE ACQUISITION BY EMINENT DOMAIN OF A TEMPORARY CONSTRUCTION EASEMENT Resolution No. 0 2 2- 9 WHEREAS, in order to improve traffic capacity and circulation between northwest Bakersfield and the downtown area, and between the California Avenue area business district and Rosedale Highway, to connect existing streets, and to promote the public welfare and safety, the City of Bakersfield ("City") intends to develop and construct the Westside Parkway Project (the "Project"); and, WHEREAS, the public interest and necessity require that a temporary construction easement upon/across/over certain real property located in Bakersfield, California, and more particularly described in Exhibit "1"attached hereto and incorporated herein by reference, be acquired for public roadway purposes for the Project; and, WHEREAS, the City has provided the record owner of the real property with notice and opportunity to appear and be heard on the matters referred to in California Code of Civil Procedure section 1240.030 in compliance with California Code of Civil Procedure section 1245.235; and, WHEREAS, the City made an offer of compensation required by California Government Code section 7267.2 which is attached hereto in Exhibit "1" and incorporated herein by reference; and, WHEREAS, in accordance with the provisions of California Code of Civil Procedure section 1245.235, the City Council intends to make certain findings and determinations. NOW THEREFORE, be it resolved by the City Council of the City of Bakersfield, based on applicable law and the whole record concerning this matter, including, but not limited to, the accompanying staff report, which is hereby made a part of this resolution, as follows: 1. The temporary construction easement upon/across/over the certain real property is being acquired in order to construct a portion of the Project (construction of a sound wall on adjacent property) which will improve traffic capacity and circulation between northwest Bakersfield and the downtown area and between the California Avenue area business district and Rosedale Highway, to connect existing streets and to promote the public welfare and safety; 2. The City is authorized to acquire the temporary construction easement upon/across/over the certain real property by the Eminent Domain Law (Title 7, Part 3 of the California Code of Civil Procedure commencing at section 1230.010) and California Government Code section 37350.5 for public roadway purposes; 3. A description of the general location and the extent of the temporary construction -1- Resolution of Necessity Resolution No. 2009- _ Property: BLC Glenwood-Gardens AL, L.P. ,w ~a~r,r+ ~",, :Y+ ~'1 F_ r 'C7 GRIG6h;~=,,_ easement to be acquired is attached in Exhibit "1 ". 4. The City of Bakersfield hereby finds, determines and declares: (a) The public interest and necessity require the proposed Project; (b) The proposed :Project is planned and/or located in the manner that will be most compatible with the greatest public good and the least private injury; (c) The temporary construction easement upon/across/over the certain real property described in this Resolution of Necessity and attached exhibit is necessary for the Project; and, (d) Prior to making the above findings and determinations, the City made an offer of compensation required by California Government Code section 7267.2. 5. City staff is directed to take all necessary and appropriate actions to carry out the purpose and intent of this Resolution of Necessity. 6. The law firm of Griswold, LaSalle, Cobb, Dowd & Gin, L.L.P. ("GLCDG"), is hereby authorized and directed to prepare and prosecute proceedings in eminent domain in the appropriate court to acquire for the City of Bakersfield the property interests described and depicted in Exhibits "1". GLCDG is hereby further authorized to obtain such orders for immediate possession of the temporary construction easement upon/across/over the certain real property. A warrant(s) shall be issued to the State Treasury Condemnation Fund as a condition of immediate possession. WHEREFORE, the following Resolution was passed and adopted this 25`'' day of February, 2009, at Bakersfield, California, by a majority vote of the City Council of the City of Bakersfield. AYES: ~~Gl'l ~ ~e~Ct~vn , SCI IT ~ t ~ C~mS~O-'1, ~(,l,U-1 tJM1 ~ Sc~V' (V 1'`rh~ NOS: n,~y~Iz ABSTAIN: NAB ABSENT: (~ l~.C-~-- ATTEST: UL " !- 1G PAMELA A. McCARTHY -2- ~, Resolution of Necessity Resolution No. 2009- Property: BLC Glenwood-Gardens AL, L.P. ~.~~ ~,. APPROVED AS TO FORM: ~12. VIRGINA GENNARO, ity ttorney CERTIFICATE OF CITY CLERK I, PAMELA A. McCARTHY, Clerk of the City of Bakersfield, certify the foregoing is the full and true Resolution No. 2009 _, passed and adopted by the City Council of the City of Bakersfield at a regular meeting held on the 25`h day of February, 2009. PAMELA A. McCARTHY -3- Resolution of Necessity Resolution No. 2009- Property: BLC Glenwood-Gardens AL, L.P. EXHIBIT "1" B A K E r R ~~ S ~ F I ~ E L ~ D February 4, 2009 Eric W. Hoaglund, Esq. Vice President of Business Legal Affairs Brookdale Seniar Living, Inc. 6737 W. Washington Street, Suite 2300 Milwaukee, WI 53214 Subject: Initiation of Legal Process -Glenwood Gardens, Bakersfield CA APN 500-020-40, 41, 46, 47 (Temporary Construction Easement) Dear Mr. Hoaglund, As you are aware the City of Bakersfield has been working to design, fund and begin construction of the Westside Parkway. The Glenwood Gardens complex is affected by this project due to the need for a Temporary Construction Easement (TCE) to build the sound wall required for the project. The City contracted with the right-of-way firm of Overland Pacific & Cutler (OPC) to coordinate obtaining the TCE's from all owners along the parkway. To date, OPC nor the City, have not been able to obtain the necessary documents for the property to secure the TCE. All TCE's must be obtained prior to requesting funds from the State in order for the City to construct the project. In order to meet the State funding requirements and go out to bid on the project, we must begin the legal process of securing the TCE. Enclosed is a copy of the last offer letter, Agreement, Temporary Construction Easement, and the required appraisal valuation for the temporary easement. Glenwood Gardens will be receiving a "Notice of Intent to adopt Resolution of Necessity to acquire certain real property by Eminent Domain" pursuant to the California Code of Civil Procedures from the City Clerk. The City of Bakersfield cannot commence an eminent domain proceeding to acquire the necessary temporary construction easement unless it first adopts a Resolution of Necessity pursuant to Sections 1245.220 and 1245.230 of the California Code of Civil Procedure. The proposed public use is for public transportation, health, and safety purposes for the Westside Parkway Project. If the City of Bakersfield adopts a Resolution of Necessity, it will commence an eminent domain proceeding upon the adoption of the Resolution of Necessity. The eminent domain proceeding will be commenced in the Kern County Superior Court. The amount of-just compensation that you will be entitled to, for the temporary easement, will be determined in the court proceeding. The City Council will not consider the amount of just compensation for the temporary easement at their meeting regarding adoption of the Resolution of Necessity. Also I have enclosed two documents required to be sent property owners under State & Federal Acquisition Guidelines. The first is "Your Property/Your Transportation Project" which provides answers to basic questions frequently ask concerning acquisition procedures. The second is "Your Rights under Title VI 8 Related Laws" outlining the City and Caltrans policies regarding your Civil Rights. City of Bakersfield Property Management Division • 900 Truxtun Avenue, #200 Bakersfield California • 93301 (661) 326--3479 Fax (651) 852-2195 cwebi~~:~z'b~~kersfiieldcity.i~s - ~: This letter does not preGude continuing to work with you in obtaining the necessary TCE for the project. But due to the time constraints of the project schedule, the City must begin the legal process of securing the necessary TCE's to construct the sound wall that is a part of the Westside Parkway Project. If I can be of any assistance or provide further information, please call me at 326-3479. Sf in1'cerely, ~ ~ Q Charles Webb Real Property Agent II Property Management Division Enclosures Cc: Deputy City Attorney R:1User ProjedslFlnancelProperty_Managernentlcwebblwestside ParkwaylGlenwood Gardens - Notice of Intent Ltr.doc ~, ,, ~, NON COMPLEX VALUATIONS ($10,000 OR LESS) DATE: January I5, 2009 1'O: City of Bakersfield FROM: Overland, Pacific & Cutler, Inc. SUBJECT: Non Complex Valuation ($10,000 or less} APN: 500-020-40-00, 500-020-41-00, 500-020-46-00, 500-020-47-00 DATE OF VALUE: January I S, 2009 CONFIDENTIAL l'hir dnn+nrrnt crwr+aint /Rrsr+nul inJi~rmutmn and pursuant ar ('n'+! ('rote !?A'S.?t It shall !u' krPr rnnJidrrrtta(in order to pnr+rct aktr+net urouJuurced dac'/osurr. Project Limits: Westside Parkway between Coffee Road and 900 feet west of Calloway OWNER: BLC GLENWOUD-GARDENS AL, L.P., A DELAWARE LlM1TED PARTNERSHIP PROPERTY IDENTIFICATION: 350 Calloway Drive, Bakersfield, CA IN'T'EREST APPRAISED: 'T'emporary construction easement with a term of nine months. AREA 'I"O BE ACQUIRED: 21,356 Square Feet PROJEC'T' DESCRIP'f10N: Westside Parkway Project PROPERTY DESCRIPTION: Senior Citizens and Assisted Living Facility ZUN[NG and HIGTIEST and BEST USE: PUD with Low to Medium Residential. Existing subject development represents the highest and best use of the subject property. - _ _~ Estate to be Square Property Value Rate Tenn' Total Value acquired feet ~ emporary _ _ . __ Construction 21,856 $5.00 10% 4 months $8,196.00 Easement (TCE) LAND VALl1AT10N: - $8,196.00 IMPROVEMENTS: All improvement within the right of way will be replaced in-kind by contractor _ SO_00 $8,196.00 DAMAGES: $ 0.00 TOTAL: $8,196.00 TOTALJUST' (bMPENSATION $8,196.00 NUTS: Existing rear wall/fence will be removed and replaced with a soundwall. Soundwall will be within the existing right of way. Also the side wall/fence will be extended as needed to join new soundwall. Comparable sales information is attached. t l0%annual rate 2 Nine month duration of the project (lhc Rate is calculated per annum) NON COMPLEX VALUATIONS ($10,000 OR LESS) (Cont.) RW 7.14 (Rev. 1/9S ) 1'he appraisals contained herein are oonfidentiat and have bcen prepared for City use only as a step in the eminent domain process upon which base offers of settlement and thereafter acquire said parcels by condemnation if the offer is refused. The undersigned appraised the properties cantained herein and recommend approval of this report. Right of Way Agent The undersigned have reviewed and approved this report and certify that the requirements of the W W Manual have been met. ~`~. ~q Project Manager "I'lle right of way and degree of access control are correctly shown on the appraisal map {s) and are required far the construction of this project and all properties have been cleared of hazardous waste in accordance with existing P&Ps. City of Bakersfield Approved as to the amount of just compensation. BY~ __.. Date: A+', ;'.~ r , i _ ,. 562.304.2000 ph 562.304.2020 fax www.aPCservices.com December 11, 2008 Eric W. Hoaglund, Esq. ice President of Business Legal Affairs Brookdale Senior Living, Inc. 6737 W. Washington Street, Suite 2300 Milwaukee, WI 53214 Reference: Westside Parkway- Sound Wall Construction APN Na.: 500-020-40, 41, 46, 47 Dear Property Owner: (n connection with the above-referenced property, enclosed please find the following document to be executed: - (3} Agreement to Convey and Claim for Payment to be signed. -(1) Agreement to Convey and Claim for Payment is your copy for your records. - (1) Easement Deed notarized. - (1) Easement Deed for your records. Should you have any questions, please fee( free to contact me at 562-304-2000 Sincerely, lie Mesun scrow Coordinator enclosures AGREEMENT NO. AGREEMENT TO CONVEY AND CLAtM FOR PAYMENT PROJECT NAME: WESTSIDE PARKWAY SOUND WALL CONSTRUCTION ASSESSOR PARCEL NO.: 500-020-40, 41, 46, 47 STATE PROJECT: 06-4C1634L FOR A VALUABLE CONSIDERATION, the undersigned Property Owners BLG GLENWOOD-GARDENS AL, L.P., A DELAWARE LIMITED PARTNERSHIP, (Owners) hereby agrees to grant to the C{TY OF BAKERSFIELD (City) a temparary construction easement in real property described as: (FOR EASEMENT INTEREST TO BE GRANTED AND LEGAL DESCRIPTION, SEE ATTACHED TEMPORARY CONSTRUCTION EASEMENT} The undersigned Owners hereby claim and agree to accept the sum of TEN THOUSAND AND N0/100 DOLLARS ($10,000.00) as compensation for the conveyance of the above-described temporary construction easement. This sum shall be paid within 45 days of the Owners execution of this agreement and the temporary construction easement. Said sum does not include compensation for any and all damages occurring to Owners by reason of the construction of the improvements and any other claim for compensation regarding the project. 1. CONSTRUCTION CONTRACT AND CURATIVE WORK. a. It is understood and agreed by and between the parties hereto in addition to the compensation, the City, its contractors or assigns, shall perform the following construction contract items at the time of the installation of the proposed project: i. Remove Owners existing privacy wall or fence. ii. Install temparary fencing with sight shielding along the temporary construction easement area during construction. iii. Cons#ruct new sound wall and/or retaining walls along Westside Parkway right of way to replace Owners privacy wall or fence. iv. Page 1 of 3 All work performed under this Agreement shall conform to all applicable building, fiire and sanitary laws, ordinances and regulations relating to such work and shall be completed in a good and workmanlike manner. All structures, improvements or other facilities, when removed, and relocated or reconstructed by the City, shall be left in as good condition as found. a. It is understood and agreed by and between the parties hereto that the compensation paid to the Owners through this Agreement includes the value of and cost to remove, reloca#e, reconstruct, and/or refurbish the following improvements located on the Property. ii. It is further understood between the parties hereto that if the improvements referred to above are not removed from the subject property upon 48 hour written not cation from City, the City, its agents, contractors, or assigns, shall have the right to remove said improvements and dispose of same in any manner City deems appropriate without further notice or responsibility to Owners whatsoever. 2. PERMISSION TO ENTER ON PREMISES. Property Owner hereby grants to City, its authorized agents or contractors, if necessary by reason of the above-mentioned improvement, the right to enter upon Owner's property upon 48 hours prior written notice to perform the construction items referred to above and for any of the following reasons. a. To make necessary and reasonable inspections and surrey work. b. To remove the existing walUfence and insta{I a new sound wall or retaining wall with its necessary appurtenances. c. To remove existing improvements in the temporary construction easement area where necessary to demolish existing fence or wall, or to construct new sound or retaining wall. d. To repair or construct property improvements damaged ar removed during the construction of the sound or retaining walls. 3. INDEMNITY. It is understood and agreed between the parties hereto, that the City, its contractors and assigns will be liable for any and all damages to real or personal property and/or individuals caused by the construction of the sound wall or retaining wall and its appurtenances. Page 2 of 3 4. ASSIGNMENT. The terms, conditions, and covenants set forth herein shall apply to and bind the heirs, executors, administrators, assigns and successors of the parties hereto. 5. ENTIRE AGREEMENT, WAIVER AND MODIFICATION. This agreement is the entire agreement between the parties. It supersedes all prior agreements and understandings, whether oral or written, between the parties with respect to the matters contained in this agreement. Any waiver or modification to any provision of this agreement shall be set forth in writing and executed by both parties. DATE: CITY OF BAKERSFIELD, "CITY" By: HARVEY L. HALL, Mayor APPROVED AS TO FORM: VIRGINIA GENNARO City Attorney By: ROBERT M. SHERFY Deputy City Attorney COUNTERSIGNED: By: NELSON K. SMITH Finance Director Attachments: Temporary Construction Easement Page 3 of 3 RAUL M. ROJAS Public Works Director ;, '~ °!-:s> - ey: ey: OWNER APPROVED AS TO CONTENT: By: RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: CITY CLERK'S OFFICE 1501 TRUXTUN AVENUE BAKERSFIELD, CA 93301 Space APN: 500-020-40, 41,46, 47 EASEMENT DEED (Temporary Construction Easement} FOR A VALUABLE CONSIDERATION, the receipt of which is hereby acknowledged, BLC GLENWOOD-GARDENS AL, L.P., A DELAWARE LIMITED PARTNERSHIP, "GRANTOR" hereby grants} and convey{s} to the CITY 'OF BAKERSFlELD, a municipal corporation, "GRANTEE" a TEMPORARY CONSTRUCTION EASEMENT, over, under and across that portion of GRANTOR'S property, legally described on Exhibit "A," and depicted on Exhibit "B," attached hereto for the purpose of constructing sound walls and retaining walls within the right-of-way of Westside Parkway. GRANTOR agrees to allow GRANTEE, or its contractors to move or remove any existing structures or improvements located within the temporary construction easement area with the understanding that GRANTEE, or its contractors shall replace them "in like kind", restore or pay for replacement of such structures or improvements prior to the termination of this easement. Access to GRANTOR's property shall not be impaired, except for temporary fencing which will be in place during the construction of improvements within the temporary construction easement area. Further, GRANTEE may re-grade and fill the GRANTOR's property within the temporary construction easement area. Easement shall extend for a period of nine (9) months commencing forty-eight (48} hours after GRANTEE provides written notification to GRANTOR of its intent to commence construction. Easement shall automatically terminate upon the recordation of a Notice of Completion of the Westside Parkway. construction project. It is further understood that when the use of said temporary easement is no longer required, which shall not extend beyond the completion of the construction project, said parcel shall be cleared of all debris and left in a neat, clean and presentable condition. Dated: STATE PROJECT NO. 06-4C1534L GRANTOR LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN IS SITUATED IN THE COUNTY OF KERN, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: THE NORTH WESTERLY 10 FEET OF PARCELS 1 AND 2 AND THE NORTHERLY 10 FEET OF PARCELS 3 AND 4 OE PARCEL MAP NO. 10406 !N THE CITY OF BAKERSFIELD, COUNTY OF KERN, STATE OF CALIFORNIA, AS PER MAP RECORDED MARCH 5, 1999 IN BOOK 50, PAGES 89 THROUGH 91 INCLUSIVE OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. Exhibit "A" CITY OF BAKERSFIELD VNestside Parkway Soundwall Construction 500-020-40-00 BLC Glenwood Gardens Snf. ~••y- D wQ ~i ~~ ~. c ~~ 40 8.23AC. %~ ~ i TO SCALE FOR ILLUSTRATOR PURPOSES ONLY 10 ft. Temporary Construction Easement Prepare By: Overland, Pacific & Cutler, Inc. Exhibit B CITY OF BAKERSFIE~J Westside Parkway Soundwall Construction Soo-o20-4~-00 BLC Glenwood Gardens Snf. . _,_ 3~8, 3? ~'tPM. ~~. ~ ~/ h ~~ DRAWING NOT TO SCALE FOR ILLUSTRATOR PURPOSES ONLY ~~ 10 ft. Temporary Construction Easement Prepare By: Overland, Pacific & Cutler, Inc. ~~ ..^ ~: : , ~. ,~~~,_ CITY OF BAKERSFIE~J Westside Parkway Soundwall Construction 500-020-46-00 BLC Glenwood Gardens Snf. ti e°~ 46 480AC. ~, / G% ~ FOR ILLUSTRATOR PURPOSES ONLY 10 ft. Temporary Construction Easement Prepare By: Overland, Pack & Cutler, lnc. ~,~ CITY OF BAKERSFIE~J 1Nestside Parkway Soundwall Construction 500-020-47-00 BLC Glenwood Gardens Snf. _ .... ..._ ~/~. ~. .. ~~~: ~ t . ~I~i. do 1040'6 4~ 259A~. 1/ ~/ DRAWING NOT TO SCALE FOR ILLUSTRATOR PURPOSES ONLY 1Q ft. Temporary Construction Easement Prepare By: Overland, Pacific & Cutler, Inc. ACKNOWLEDGMENT State of California County of ~ ss. On before me, Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the persons} whose name(s) islare subscribed to the within instrument and acknowledged to me that helshe/they executed the same in his/her/their authorized capacity(ies), and that by hislherltheir signatures(s) on the instrument the persons}, or the entity upon behalf of which the persons} acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature DPTi'ONAL /NF(}RMAT/ON Date of Document Type or Title of Document Number of Pages in Document Document in a Foreign Language Type of Satisfactory Evidence: Personally Known with Paper Identification Paper Identification Credible Wrtness(es) Capacity of Signer. Trustee Power of Attorney CEO/CFO/COO President /Vice-President /Secretary /Treasurer Other. (seal) Thumbprint of Signer p cne~x Here it no tnumbpdnt or fingerprint is available. Other Information: __. it9 T008 ANst2tr IJotary Preparation, Inc. (800) G89 845ti vt~~.allstatenotary.com Your Property Your Transportation Project INTRODUCTION This booklet was prepared for you a5 a person who may potentially be affected by a proposed public transportation project. If it is your property that is affected, you may have wondered what will happen. Who will contau-t you? What will you be paid for your property? Who will pay your moving costs? Will the State Department of Transportation (Department) help you find a new place to live? Important questions like these require specific answers. We hope this booklet will answer some of your questions and present a better picture of our overall procedures. WHY DOES A PUBLIC AGENCY HAVE THE RIGHT TO BUY MY PROPERTY? Our State and federal constitutions recognize the need for public agencies W purchase private property for public use, and provide appropriate safeguards to accomplish this purpose. State and federal constitutions and the federal Uniform Relocation Assistance and Real Property Acquisition Policies Act, as amended, authorize the purchase of private property for public use and assure full protection of the rights of each citizen. The responsibility for studying potential sites for a transportation project rests with a team of specially trained individuals selected to do this important job. Many months or even yeazs are spent in preliminary study and investigation to consider possible locations for a project. Consideration of the environmental and social impacts are as much a part of location determination as engineering and cost. Participation by private citizens and public agencies is actively sought so that various views can be considered in the study process. The process may include public hearings and/or workshops, which give persons an opportunity to express their views nn the locations being considered. The California Department of Transportation is composed of many specialists. Among these arc: Transportation Planners These individuals determine methods and routes for the traveling public. This includes studies of existing traffic patterns, "origin-destination" surveys and user benefits. They also determine whether the proposed project location is economically sound. They research and analyze the effects produced by similar projects upon other communities. Fnvironmental Planners These individuals evaluate the socio-economic and/or environmental impacts, including traffic, noise and visual impacts of the proposed project <.~. ~. Design F,ngineers These individuals recommend the type of transportation project which will be of the most benefit to the public. They prepare design plans which determine the properties needed for the project. Relocation Specialists These individuals perform early studies of the general needs of persons who may need to be relocated and the kind of replacement properties which may be required. A relocation impact analysis will be completed before the Department requires anyone to move from their property. As a result of this team effort, the best possible location far a transportation facility is selected after thorough social, economic, engineering, and environmental analyses, as well as consideration of expressed public concerns and desires. The goal is that the project provide the greatest public good and the least private injury or inconvenience while rendering the best possible service. Transportation Surveyors These individuals perform field surveys and monument property lines to delineate and map the Department's right of way needs. They are also authorized by law to enter real property to perform such tasks. It is the Department's policy that owners and tenants of property will be notified prior to such surveys. WHa WILL CONTACT ME? One of the first persons you will meet is a Right of Way Agent performing the staff appraisal. You will be afforded the opportunity to accompany the appraiser on the inspection of your property. At the time of the inspection the appraiser will also provide you with general project information. The appraiser will analyze your property and examine all of the features which contribute to its market value. Information about improvements you have made and any other special features that you believe may affect the market value of your property should be given to the appraiser to ensure he/she has all the information you feel is relevant. It is the duty of the Department to ensure that you receive fair market value as if you sold your property privately in the open market. The Department cannot buy your property for more than it is worth, but it can and will assure you that you do not have to sell your property for less than its fair market value. California law provides that the owner shall receive a copy of the appraisal or a summary of the valuation upon which the Department's offer is based. At the time the offer is made to purchase your property, you may obtain your own appraisal and the Department will reimburse you up to $5,000 for the actual, reasonable costs of obtaining an independent appraisal. A licensed State appraiser must perform your appraisal. Your Right of Way Agent wilt provide more information concerning this reimbursement at the time of the offer. WHAT ADVANTAGE IS THERE IN SELLING YOUR PROPERTY TO THE DEPARTMENT? A real estate purchase by the Department of Transportation is handled in the same way as any private sate of property. However, there can be financial advantages in selling to the Department. The Department will pay fair market value lbr your property. The Department will also pay for the preparation of all documents, all title and escrow fees, a policy of title insurance, recording tees and such other fees as may be required for the conveyance of title to the Department. Since this is a direct conveyance of real property from the property owner to the Department, there are no real estate commissions involved, and the Department will not recognize or pay any such real estate commissions. A private sale will usually cost thousands of dollars in sales expenses. There are no seller's expenses in a purchase by the Department. Additionally, depending on your specific circumstances, you may be eligible for relocation payments and benefits when you move. These benefits are described in supplemental booklets which will be provided to you, should the llepartment's acyuisition actually cause you to be displaced from your property. WILL I BE PAID FOR LOSS IN VALUE TO MY REMAINING PROPERTY? When only a part of your property is needed for a project, every reasonable effort is made to ensure that you do not suffer damages to the remainder of your property. The total payment by the Department will be for the property the Department actually purchases and for any toss in market value to your remaining property. The determination of any toss in market value is an appraisal problem involving many variables. When this situation occurs, the Right of Way Agent wilt explain the effect of a partial acyuisition on your remaining property. 4 MAY I RETAIN AND MOVE MY HOME, BUSINESS BUILDING, MACHINERY, OR EQUIPMENT? If your house is movable and you wish to make such an arrangement, the llepartmcnt will pay you on the basis of the market value of your present lot including landscaping, plus the reasonable cost of moving the building. There are cases where, because of age, size or condition of the house, the cost of moving it would exceed its present market value, less its salvage value. In such a case, payment of moving costs would, of course, be an unwise expenditure of public funds. !f you operate a farm or business, you may wish to keep and move fixed machinery and equipment. Additionally, as an owner of a business conducted on the property to be purchased, you may be entitled to compensation for a loss of business goodwill. Your specific circumstances will need to be analyzed on a case-by-case basis. If any of these concepts are applicable to your situation, they will be explained by the Right of Way Agent assigned to purchase your property. WILL I HAVE TIME TO SELECT ANOTHER HOME AFTER THE DEPARTMENT MAKES ITS PURCHASE? The Department starts to appraise properties early enough so that you will have ample time to move prior to project construction. Like any other real estate transaction, it requires time to close an escrow after a right of way contract and deed have been signed. You will not be required to move until reasonable, decent, safe and sanitary replacement housing is available. Once you have received the written offer to purchase your property from. the Department, it is in your best interest to look for a new place to live as soon as possible. Finding a home early that best suits your needs before you are required to move will minimize your personal inconvenience and will avoid having to make a choice of housing under pressure. In some instances you may be able to sell your property to the Department and rent back temporarily pending construction. The Department also offers to provide you with assistance in finding a new place in which to live. The Department will give you at least ~ days notice in writing before you arc reyuired to move. WHAT HAPPENS TO THE LOAN ON MY PROPERTY? After you and the Department have agreed upon a price, a Right of Way Agent and/or a title company will contact all other parties having an interest in the property. Payment to satisfy outstanding Loans or liens will be made through a title company escrow as in the case in any real estate transaction. WHAT WILL HAPPEN TO MY GI OR CAL-VET LOAN? The Veterans Administration and the California Department of Veterans Affairs allow your veteran loan privileges to be transferred and to become available for coverage on another property. Your Right of Way Agent will assist you in the transfer. However, it is to your benefit and your responsibility to check with the Veterans Administration or the California Department of Veterans Affairs for procedural instructions. IF THE VALUE OF MY PROPERTY IS HIGHER TODAY THAN WHEN I PURCHASED IT, DO I HAVE TO PAY INCOME OR CAPITAL GAINS TAX ON THIS DIFFERENCE WHEN ISELL/CONVEY TO THE DEPARTMENT? According to the Internal Revenue Service, the sale of property to a governmental agency for public purposes comes under the definition of an "involuntary conversion". In these cases, it is not necessary to pay income tax or capital gains tax if the money you receive is used to buy a similar property within a limited period of time. In every case, however, you should check with your local Internal Revenue Service office and/or accountant. WILL I LOSE THE FAVORABLE PROPERTY TAX BASIS THAT I NOW HAVE UNDER THE PROVISIONS OF PROPOSITION 13? Section 2(d) of Article XIII-A of the California Constitution and Section 68, Rule 462.5 of the Revenue and Taxation Code generally provide that property tax relief shall be granted to any real property owner who acquires comparable replacement property after having been displaced by governmental acyuisition or eminent domain proceedings. You will be given a copy of Rule 462.5 with an attached page showing examples of how to calculate estimates of the tax relief you may be eligible far. These are only approximations. You must see your county Tax Assessor for a final determination. 6 Note: Revenue and Taxation Cade Section 68, Rule 462.5, G. 1 through G.4, set forth time limits that may affect your eligibility to retain your favorable current real property tax status. THE DEPARTMENT'S RIGHT OF EMINENT DOMAIN. An owner's rights are guaranteed by the federal and State constitutions and applicable federal and State laws. The principal right is that "Just Compensation" must be paid. The vast majority of our transactions are settled by contract. However, if the owner and the Department cannot agree on the terms of sale, the Department may resort to the eminent domain process to avoid delaying the project, and will ultimately initiate condemnation proceedings. The Department will request authority from the California Transportation Commission (Commission) to file a condemnation action in court. You will be given an opportunity to appear before the Commission to question whether public interest, necessity, planning and location require the proposed project and your property. The Commission does not hear arguments regarding valuation or just compensation. Condemnation lawsuit documents are prepared by the Department and filed with the court in the county where the property is located. The Summons and Complaint will then be served on all persons having a property interest in the parcel. The persons served must Answer the lawsuit within 30 days. Counsel for the parties will then prepare for trial, and the court will set dates for preliminary motions and the trial. WHAT HAPPENS IN A CONDEMNATION TRIAL? The purpose of the trial is to determine the amount of Just Compensation. Usually the trial is conducted before a judge and jury. Both the property owner and Department will have the opportunity to present evidence of value. The jury will determine the amount of compensation after being instructed as to the law by the judge. In those cases where the parties choose not to have a jury, the judge will decide the amount of compensation. The Judgment is then prepared by counsel and signed by the judge. It will state that, upon payment of the amount of the verdict far the benefit of the property owner, title will be transferred to public ownership. When the Department makes the payment as required by the Judgment, the Final Order of Condemnation is signed by the judge and recorded with the County Recorder's office. This finalizes the actual transfer of title. 7 WHO PAYS THE CONDEMNATION TRIAL COSTS? The Department pays the costs of its attorney and its engineering and appraisal witnesses. It wilt also pay the jury fees and your recoverable costs allowed by law. The fee for filing your Answer with the court is an example of such costs. If the judge determines that the Department's offer of settlement was unreasonable, white the demand ol'the property owner was reasonable as viewed in light of the evidence admitted at trial and the verdict, the property owner may receive litigation expenses such as their attorney's fees. The Judgment is then prepared by counsel and signed by the judge. IF I WANT A TRIM,, MUST I HAVE AN ATTORNEY AND EXPERT WITNESSES? Most property owners will be represented by an attorney, although they have the right to represent themselves. You may wish to consult your family attorney. if you do not have one, in many communities the yellow pages of the telephone directory will refer you to an attorney reference service. The local bar association may also provide a list of attorneys who may offer services in eminent domain proceedings. You and your attorney must decide what type: of case you will present and what witnesses will be needed. WILL I BE PAID ANY RELOCATION ASSISTANCE BENEFITS EVEN THOUGH I GO TO COURT? A decision to go to court has no effect on your right to relocation benefits. Payment of relocation benefits is administered separately from the condemnation action. You will be provided details of additional assistance to help displaced persons, businesses, farms or nonprofit organizations in finding, purchasing or renting, and moving to a new location. These are explained in various booklets prepared for homeowners, tenants, and business and farm operators and are made available by the Department of Transportation. ~~ HOW LONG CAN I KEEP MY PROPERTY? Continued use of your property usually depends on when construction must begin, including utility relocations, and the demolition and/or clearance of buildings. If construclion must begin before the trial, the Department will seek a court order for early possession of your property. In this regard the Department will be required to deposit with the State Treasurer, the probable amount of just compensation, as determined by an appraisal as security for the value of the property rights it is seeking. The court will determine if the amount of money deposited is adequate. Once the deposit is made the owner may withdraw all or a portion of it at any time during the condemnation proceedings. The court may then grant to the Department an order for early possession allowing the Department to use the property for construction of the project. To obtain an Order for Possession, the Department will file a motion with the court and schedule a hearing 90 days after you and all occupants of the property are served with the motion papers (64 days if the property is unoccupied). You and the occupants, if any, will have 34 days to oppose the motion. Once the court grants an Chdcr for Possession of the property, the Department may obtain possession of the property 34 days after the owner and any occupants are served with the Order. Subject to the rights of any other persons having an interest in the property, you may withdraw all or part of the pre-Judgement deposit. If you do not make a withdrawal, the Department will pay interest an the eventual court award, or agreed settlement sum from the time it legally occupied your property until the date of final payment to you. Interest will accrue at the applicable statutory rate until paid at the time of final settlement. The Department's Right of Way Agent assigned to purchase your property will assist you in the transaction and will be available to answer any additional questions you may have. 9 DEFINITIONS The language used in relation to eminent domain proceedings may be new to you. These are some terms you may hear and their general meaning. Acquire - To purchase Answer -The property owner's written reply, in appropriate legal form, filed with the court in response to the eminent domain complaint and as requested by the summons. Compensation -The. amount of money to which a property owner is entitled under the law t'or the purchase of their property and any related damages. Complaint -The document filed with the court by the Department which initiates an eminent domain proceeding. Condemnation -The legal process by which a proceeding in eminent domain is accomplished. Counsel - An attorney or attorneys. Department -The State of California acting through the Department of Transportation. Eminent Domain -The right of government to purchase private property for public use. Fair Market value -The fair market value of the property taken is the highest price on the date of valuation that would be agreed to by a seller, being willing to sell but under no particular or urgent necessity for so doing, nor obliged to sell, and a buyer, being ready, willing and able to buy but under no particular necessity for so doing, each dealing with the other with full knowledge of all the uses and purposes for which the property is reasonably adaptable and available. Final Order of Condemnation -The instrument which, when recorded, transfers title to public ownership. Judgment -The court's formal decision based on applicable law and the verdict. Just Compensation -The measure of Just Compensation is Fair Market Value. Loss of business goodwill - A loss in the value of a business caused by the Department's acyuisition of property that cannot be reasonably prevented by relocation of the business or the owner adopting prudent or reasonable steps that preserve the value of the business goodwill. Parcel -Usually means the property that is being acyuired. l0 Plaintif'f' -The public agency that desires to purchase the property. Possession -Legal control; to have the right to use. Property -The right or interest which an individual has in land, including the rights to use or possess. Property is ownership; the exclusive right to use, possess or dispose of a thing. Right of Entry - An agreement between an owner and the Department which allows the Department to utilize the property while. continuing to negotiate the terms of settlement. Interest, calculated at the statutory rate, is included in the settlement upon conclusion of the transaction. Summons -Notification of filing of a lawsuit in eminent domain and of the necessity to file answer or other responsive pleading. Title -Legal ownership. Trial -The hearing of the facts from a plaintiff and defendant in court of taw, either with or without a jury. Verdict -The amount of just compensation to be paid for a property including any damages to the remainder, if applicable. STATE OF CALIFORNIA BUSINESS, TRANSPORTATION AND HOUSING AGENCY DEPARTMENT OF TRANSPORTATION DIVISION OF RIGHT OF WAY AND LAND SURVEYS JULY 2008 cam. This is an informational pamphlet only. It is not intended to give a complete statement of all State or federal laws and regulations pertaining to the purchase of your property for a public use, the Relocation Assistance Program, technical legal definitions, or any form of legal advice. ADA Notice For individuals with disabilities, this document is available in alternate formats. For information contact: Division of Right of Way and .and Surveys (916) 654-5896 CRS: (800) 73S-2929 or write: 1120 N Street, MS 37 Sacramento, CA 95814 12 Title VI is a law. It says you must be treated the same as others. Your race, color, national origin, sex, age and disability do not matter. It does not matter if you come from another country. It does not matter if you are poor or speak another language. This agency gets money to build and fix bridges. It gets money to build and fix roads too. This agency pays companies to do some of the work. This work will help all people in California. This agency and the companies must follow the law Tell how you were not treated the same as others. Give your name, address and phone number. You must sign and date your letter. 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