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RESOLUTION NO. ___-2023
A RESOLUTION OF THE FORT BRAGG CITY COUNCIL DETERMINING THAT THE
PUBLIC INTEREST AND NECESSITY REQUIRE THE ACQUISITION OF CERTAIN REAL
PROPERTY INTERESTS FOR A PUBLIC PROJECT AND DIRECTING THE FILING OF
EMINENT DOMAIN PROCEEDINGS
(Applicable to Property: APNs 019-630-05, 019-640-01, 019-640-04) The City Council of the City of Fort Bragg does hereby resolve as follows:
SECTION 1. The City Council of the City of Fort Bragg (hereafter "City"), after consideration of the staff report, staff presentation, discussion, oral testimony and evidence presented at the June 12, 2023, meeting of the City Council hereby finds, determines and declares as follows:
(a) The public interest, convenience and necessity require the proposed project; to wit, to construct a section of a primary water transmission line that delivers raw water from sources at Waterfall Gulch, Newman Reservoir, and Summers Lane Reservoir to the City's water treatment plant and all uses appurtenant thereto (“Project”); and (b) The interests in real property to be acquired are located within the City of Fort Bragg, County of Mendocino, State of California and consist of the following:
A non-exclusive permanent subsurface easement, 1.65 acres (71,993 s.f.) in size, to survey, install, construct, reconstruct, alter, operate, remove, replace, inspect, repair, and maintain underground pipeline(s) for water and storm water (collectively, the “Facilities”) in, under, across, and along that certain real property located in the County of Mendocino, State of California, described in Exhibit A and depicted in Exhibit B attached hereto (“Permanent Easement”).
The Permanent Easement described herein shall be subject to the following terms and conditions set forth in Exhibit C attached hereto.
(c) The Project is planned and located in a manner that will be most compatible with the greatest public good and least private injury.
(d) The taking of the Permanent Easement is necessary for the proposed Project and such taking is authorized by Section 19, Article I of the California Constitution, Section 37350.5 and 38730 of the California Government Code, Sections 1230.010 et seq. and 1240.010, 1240.125 of the California Code of Civil Procedure, Section 14.04.010 et seq. of the Fort Bragg Municipal Code and other applicable law.
(e) Because the Permanent Easement is being acquired for construction, reconstruction, alteration, enlargement, maintenance, renewal, repair, or replacement of subsurface waterlines 4855-2830-8330 v2 - 2 -
or appurtenances, per Government Code 7267, the provisions of subdivision (b) of Section 7267.1 and Section 7267.2 do not apply to the acquisition of the Permanent Easement. (f) The necessary notice of hearing on this Resolution has been given, as required by Code of Civil Procedure Section 1245.235.
(g) The City has complied with all conditions and statutory requirements necessary to exercise the power of eminent domain (the “right to take”) to acquire the Permanent Easement described herein.
(h) The City has fully complied with all the provisions of California’s Environmental Quality Act in regard to the proposed Project.
SECTION 3. The City Council further finds that if any portion of the area of the Permanent Easement has been appropriated to some public use, the public uses to which it is to be applied by the City, as described above, are more necessary and paramount public uses, pursuant to Code of Civil Procedure Section 1240.610 or, alternatively, will not unreasonably interfere with or impair the continuance of the public use as it then exists or may reasonably be expected to exist in the future, pursuant to Code of Civil Procedure Section 1240.510.
SECTION 4. The firm of Burke, Williams & Sorensen LLP, under the direction of the City Attorney, is authorized and directed to prepare, institute and prosecute in the name of the City such proceedings in the proper Court having jurisdiction thereof as may be necessary for the acquisition of said Permanent Easement, including the filing of an application for an Order for Possession prior to judgment.
SECTION 5. This Resolution shall be effective immediately upon its adoption.
SECTION 6. The City Clerk shall certify the adoption of this Resolution and certify this record to be a full true, correct copy of the action taken. 4855-2830-8330 v2 - 3 -
PASSED, APPROVED, AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF FORT BRAGG THIS 12th DAY OF JUNE 2023 BY THE FOLLOWING VOTE:
AYES:
NOES:
ABSENT:
ABSTAIN:
RECUSED:
Bernie Norvell
Mayor
ATTEST:
Cristal Muñoz
Acting City Clerk
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EXHIBIT “C”
TERMS AND CONDITIONS OF PERMANENT EASEMENT
Trimming.
Easement holder may from time to time, trim or cut down, without easement holder paying compensation, any and all trees and brush now or hereafter located within said Permanent Easement.
Ingress/Egress.
Easement holder, and its employees, contractors, agents and assigns (“Authorized Users”) shall have the right of reasonable egress and ingress over and across the remaining servient larger parcel to allow for access to personnel, vehicles, and construction equipment, to, from, and along the Permanent Easement at any time, without prior notice, including the right to use existing roadways, driveways, drive aisles, and parking areas, if any, within the larger parcel as shall be convenient and necessary to access the Facilities and/or the Permanent Easement; provided however, that nothing shall prevent or limit landowner’s right to close such roadways, driveways, drive aisles, or parking areas, if any, and to provide easement holder or its Authorized Users with comparable alternative access to the Permanent Easement.
No Interference.
Following the initial construction and installation of the Facilities in the Permanent Easement, any further use, maintenance, operation, alteration, addition to, inspection, repair, removal, reconstruction, and/or replacement of the Facilities by easement holder shall be undertaken in a manner so as to minimize interference with the use and operation of, and access to, landowner’s larger parcel.
Improvements.
No building, fences, walls or other permanent structures of any kind, flammable substance, wells, reservoirs, or other obstructions, and no deep rooted trees, deep rooted shrubs or other plants or vegetation, shall be installed, constructed, erected, placed, planted or maintained within the Permanent Easement without prior written consent of the easement holder, which consent shall not be unreasonably withheld, conditioned or delayed. Nor shall the ground level in the Permanent Easement area be diminished or substantially added to, nor shall any fences be constructed that will interfere with the maintenance, repair and operation of said Facilities.
Location.
Easement holder and its Authorized Users shall have the right to mark the location of the Permanent Easement in a manner which will not interfere with the landowner’s reasonable and lawful use of the Permanent Easement and will not interfere with its customary business operations.
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Exclusivity.
Except for preexisting easements, if any, no other easement or easements shall be granted within the Permanent Easement without the prior written consent of easement holder, which consent shall not be unreasonably withheld, conditioned or delayed. Landowner shall have the right to use the surface of the Permanent Easement for any purpose that does not interfere and is not inconsistent with the rights granted to easement holder under this Easement.
Compliance with Laws.
Easement holder is responsible for any damage to landowner’s property caused by easement holder’s or the Authorized Users’ activities related to the Easement. In the event easement holder’s or Authorized Users’ activities damage landowner’s larger property, then subject to any restrictions set forth herein, easement holder shall restore the damaged area to its prior condition to the best it is able. Any work performed by easement holder or the Authorized Users in the Permanent Easement must be performed in a good and workmanlike manner and easement holder shall be solely responsible for obtaining all applicable permits necessary to install, repair, maintain and/or replace the Facilities.
Indemnity.
Easement holder shall indemnify, defend and hold harmless landowner from and against any action, cause of action, liability, suit, costs and expenses (including court costs and reasonable attorneys’ fees), claim, liens (including mechanics’ liens), or demand whatsoever (collectively, “Claims”) brought or asserted by any third person whomsoever, at law or in equity, arising out of or in connection with easement holder’s installation, repair, maintenance and/or operation of the Facilities in the Permanent Easement, or use of the Permanent Easement, provided, however, that this indemnity shall not extend to that portion of such loss or damage that shall have been caused by landowner’s comparative negligence or willful misconduct.
Hazardous Substances.
Nothing contained herein shall authorize easement holder or the Authorized Users to bring Hazardous Substances onto the Permanent Easement, or authorize any release of Hazardous Substances in, on, under or from same. For the purposes of this Easement, Hazardous Substances (or any derivation thereof) means any and all hazardous materials, toxic substances, chemicals, contaminants, pollutants, solid wastes or waste, as defined by any applicable environmental law, and also includes, but is not limited to, any lead paint, mold, radon, petroleum, petroleum products, petroleum by products, reactive materials, ignitable materials, corrosive materials, hazardous chemicals, hazardous waste, toxic substances, toxic chemicals, chemicals, pesticides, radioactive materials, polychlorinated byphenols, methane, soil vapor, gas, linoleum, and surface and subsurface man-made media left at or underneath the larger property, and any other element, compound, mixture, solution, substance, material, waste or the like which may pose a present or potential danger to human health and safety, biota or the environment. 4855-2830-8330 v2 - 12 -
Assignment.
Easement holder shall have the right to assign any portions, or all of the rights granted under this Easement.