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HomeMy WebLinkAbout078-85BEFORE THE CITY COUNCIL OF THE CITY OF DANVILLE In the Matter of: Adopting a City Policy on Requested Condemnation RESOLUTION NO. 78-85 The City Council of the City of Danville RESOLVES THAT: The following is adopted as the policy and procedure for handling requests (private or by other public agencies) for the exercise of eminent domain by the City to acquire property for public use and improvement to facilitate beneficial develop- ment of the City without unnecessary cost to the citizens and to allow effectuation of applicable laws (e.g., California Constitution Article I ~19, Code of Civil Procedure SS1240.010, 1240.020, Health and Safety Code S4967, Government Code ~66462.5 and Ordinance Code S914-2.006(e)): CONDEMNATION REQUEST POLICY A. ReQuests for Condemnation 1. ADDlication ReQuirements. shall be submitted to the City Clerk. the following information: Requests for condemnation The request shall contain a. Name, address and telephone number of the party making the request. If a corporation, partnership, etc., also state name of contact person. b. Name, address and telephone number of the legal counsel for the party making the request. c. Name and address of the owner(s) of the property proposed to be condemned (including some evidence of legal ownership of those persons). d. Legal description (metes and bounds) and plat map (drawn to scale) of the property proposed to be condemned. e. Statement of how the request meets the criteria specified in section 2.a. of the Duties section of Part B. be- low and the reason for the request. f. Statement of all offers made to obtain the property by negotiation and copies of correspondence indicating offers and responses. PAGE 1 RESOLUTION NO. g. Statement of actions taken to comply with the Environmental Quality Act of 1970 (Public Resources Code ~21000 et seq.), Government Code ~65402, and the Relocation Assistance Act (Government Code ~7260 et seq.) 2. City Clerk. to the Condemnation to the City Council. The City Clerk shall transmit the request Screening Committee for recommendation B. Condemnation Screenin~ Committee. 1. General. The Condemnation Screening Committee shall be comprised of representatives from the Office of the Director of Development Services, Engineering Division of Development Services and Office of the City Attorney. The Engineering Division shall serve as chairperson for the purpose of calling meetings, setting agenda, taking minutes and preparing reports to the City Council. In addition to the Committee members, meetings called for the purpose of studying a condemnation request shall be attended by the party requesting the action and, if possible, his legal counsel. The owner of the property proposed to be condemned shall also be provided the opportunity to be present and heard at the meeting. 2. Duties. The Committee shall determine if the request meets the following criteria: a. The proposal satisfies these requirements: (Code of Civil Procedure ~1240.010, 1240.020 and 1240.030) (1) The property proposed to be condemned is to be taken for a particular public use for which the City has statutory authority to acquire property by eminent domain. (2) The public interest and necessity require the taking of the property and the public improvement (the proposed project). (3) The property is necessary for the proposed project. (4) The proposed project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury. b. The proposed acquisition is primarily for the benefit of, and of substantial importance to, the City. c. The requesting party has made every reasonable effort to acquire the property by negotiazions including, when deemed appropriate by the Committee, the obtaining of a market PAGE 2 RESOLUTION NO. value appraisal by an independent qualified appraiser, or the employment of a disinterested third party to conduct negoti- ations, or whatever further action the Committee deems necessary for pre-condemnation negotiations. d. The Environmental Quality Act of 1970, Government Code ~65402, and the Relocation Assistance Act (Government Code ~7260 et seq.) have been complied with; or the Committee determines and recommends what further action must be taken by the City and/or the requesting party to insure such com- pliance. 3. Report. The Committee shall report its findings to the City Council together with its recommendations for action by the Council. C. Action by the City Council After receiving the recommendation of the Condemnation Screening Committee, the Council will either disapprove or approve as follows: 1. Disapproval. The City Council shall deny the request if it determines that the acquisition is of only incidental or slight public benefit or that insuff±cient attempts have been made to acquire the property by negotiation. 2. Tentative Approval and Final Decision. a. Agreement. If it is satisfied that all the criteria listed in section B of this Policy are met, the City Council shall tentatively approve the request and authorize the City Attorney to prepare an agreement as provided in Section D of this policy to be entered between the requesting party and the City. b. Resolution Hearing. After an agreement has been entered (to the City Attorney's satisfaction as to form and security in accordance with the provisior of Section D) the City Council shall initiate condemnation proceedings by adopting a "Resolution of Intention To Adopt Resolution of Necessity" and setting a hearing on the proposal t3at consideration be given to adopting a resolution of necessity and authorize the City Attorney and other City departments to assist therein as may be appropriate. c. Final Action. After a public hearing has been conducted on the proposed adoption of the resolution of necessity, the City Council shall determ±ne whether to adopt it and proceed with the condemnation action or take no further action. I~ the Council determines not to adopt the rceolution of necessity, the requesting party shall bear all costs incurred as provided in the agreement. PAGE 3 RESOLUTION NO. D. Agreement The requesting party shall execute and comply with an agreement with the City containing at least the following pro- visions: 1. Costs. The requesting party shall pay all costs of complying with: the environmental impact process; acquiring the necessary property including the purchase of fee titles or rights of way necessary to accomplish this work; providing relocation assistance, etc.; all condemnation suit costs incurred in acquiring the property and rights; the compensation awarded to the property owners; court and appeal costs; attorney's fees; and fees of appraisers approved by the City. The re- questing party shall bear all costs incurred by itself and the City as provided in the agreement should the City Council determine not to adopt the resolution of necessity. The requesting party shall covenant to hold the City absolutely free, clear and harmless from any costs incurred for the property and rights acquisition whether by negotiation or condemnation, and from all liability ar£sing from this work, including abandonment costs and costs awarded upon a finding of no (or insufficient) public use and/or necessity. 2. Legal Services. In the agreement, the City shall associate the requesting party's attorney as Special Counsel for the City to provide the legal services specified in the agreement. The City Attorney's office shall have supervision of the condemnation action, but the requessing party's attorney shall perform all legal services required for the condemnation action, such as making all required legal appearances, con- ducting the trial, and handling any required post trial proceed- ings, including appeals. The City shall not in any manner be liable or responsible to the requesting party's attorney for legal services rendered for the condemnation action. The City retains the right at any time at its sole discretion to direct that legal services for the condemnation action be exclusively provided thereafter by the Office of the City Attorney with all costs thereof to be borne by the requesting party as provided in the agreement. 3. Reimbursement. In connection with the reimbursement of the City for all costs set forth in subsections 1 and 2 above, the requesting party shall agree as ~ollows: a. Payments to City. To pay to the City at the time of executing the agreement a sum as provided therein on account of right of way services (negotiations, relocation assistance, PAGE 4 RESOLUTION NO. etc.) to be rendered by the Engineering Eivision of the City for the proposed condemnation action or other services (EIR, legal, etc.) to be provided by City departments (e.g. City Attorney's Office, Planning), which will be refunded to the requesting party when the condemnation is concluded (by acqui- sition, abandonment, Council decision not to adopt a resolution of necessity, etc.), less such amounts as are necessary to reimburse the City for services rendered to that time and for any other costs incurred. Services will be rendered by the Engineering Division and the City Attorney's Office at the hourly rates provided for in the agreement. The City has no duty to provide its staffs' services except to the extent that funds are deposited with it by the requesting party. If the sum deposited is exhausted, the City shall advise the requesting party in writing. The requesting party shall within ten (10) days deposit with the City any additional sum requested. The Engineering Division shall consult with ~he requesting party and his attorney with regard to any offers to be made to the owner of the property proposed to be acquired. b. Court DeDosit. To deposit in Court the amount necessary for security to obtain an order for immediate pos- session in such condemnation action after appraisal by an ap- praiser or appraisers approved by the City. This deposit, if not withdrawn by the property owner or used by the City to pay any judgment entered, shall be returned to the requesting party upon the dismissal of the condemnation action or record- ation of a final order of condemnation. c. Bond. The requesting party shall post with the City a bond (in a form acceptable to the City Attorney's Office) guaranteeing to the City full payment of all judgments and costs awarded in the condemnation and all other costs (including appraiser's fees, attorney's fees, those of the City Attorney's Office if incurred as provided in the agreement, and costs and fees on appeal if any appeal is taken). The bond is to be in the sum of at least twice the amount of the highest aprrov- ed City appraisal(s). The bond shall be submitted to the City within two (2) months after the resolution of necessity is adopted and before the condemnation action is filed. If the bond is not submitted within two (2) monzhs as required, the City Council may rescind the adoption of the resolution of necessity and the requesting party shall bear all costs incurred as provided in subsection 1 and 2 above. d. Attorney's Fees and Costs. The requesting party shall pay reasonable attorney's fees and costs incurred in any suit by or on behalf of the City on the bond or to recover for the City the costs, fees and other items of expense covered by the agreement. PAGE 5 RESOLUTION NO. e. Court Deposit; Code of Civil Procedure ~1255.010. The requesting party shall promise to deposit probable compen- sation with the court under the provisions of Code of Civil Procedure S1255.010 within fifteen days after written City demand to do so. f. Records. The City shall maintain records reflecting its legal and other expenses. appropriate 4. Acquisition Time. It is understood that the property to be condenmed shall be acquired within one year following the filing of the action, either by negotiation or formal condem- nation, and that the requesting party and his attorney will take all reasonable actions necessary to effect the acquisition within the one year. PASSED and ADOPTED at a meeting of the City Council of the City of Danville at a meeting held on__October ?tb , 1985 by the following vote' AYES: NOES: ,,,one ABSENT: ~one Lane, May, McNeely, Offenhartz, Stch-lend"o"~'~\ Mayor ATTEST: ~ L ~......~'~ ' City Clerk U PAGE 6 RESOLUTION NO.