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RES-2007-062159/012377 -0103 719261.05 a04/02/07 RESOLUTION NO. 2007 062 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANAHEIM DETERMINING THE PUBLIC INTEREST AND NECESSITY FOR ACQUISITION OF PORTIONS OF PROPERTY LOCATED AT 1680 and 1696 WEST KATELLA AVENUE AND 1818 SOUTH EUCLID STREET FOR THE PURPOSES OF THE KATELLA AVENUE SMART STREET NINTH STREET TO HUMOR DRIVE PROJECT (R/W ACQ 2004 00204, 00206 and 00205). WHEREAS, the City of Anaheim has been investigating the acquisition of property located at 1680 and 1696 West Katella Avenue and 1818 South Euclid Street, for the purposes of making public roadway improvements on the circulation element of the General Plan of the City of Anaheim; and WHEREAS, on May 8, 2007, after no less than fifteen (15) days written notice to the owners of the Property referenced above, and more specifically described in the legal descriptions attached hereto as Exhibits "1", "3" and "5 which legal descriptions are incorporated herein by reference, the City Council of the City of Anaheim held a hearing for the purposes of allowing the record owners of such property reasonable opportunity to appear and be heard regarding the City's identification of the "Project and on the following matters: A. Whether the public interest and necessity require the Project; B. Whether the Project is planned or located in a manner which is most compatible with the greatest public good and the least private injury; C. Whether the Property proposed to be acquired is necessary for the Project; and D. Whether the offer required by Government Code 7267.2 had been given to the owners of record; and whether the City had properly exercised all of its statutory responsibilities and duties antecedent to the exercise of eminent domain against the Property including review under CEQA; and WHEREAS, the City Council, as a result of such hearing, has determined that the public health, safety and welfare require that the City acquire the Property more particularly described herein "Property for the purposes of widening and improving the Katella Avenue Smart Street Ninth Street to Humor Drive Project; and WHEREAS, the Project for which the Property to be acquired is sought has previously been reviewed under applicable environmental review procedures, including Environmental Impact Report No. 538 certified in February 1993 under the Final Environmental Impact Report (Hereinafter "E.I.R. through the Orange County Transportation Authority "OCTA for the Katella Avenue Smart Street Ninth Street to Humor Drive Project; and WHEREAS, the City of Anaheim is authorized to acquire the Property under authority of its own charter, and Government Code 37350.5 and 40404; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Anaheim, California, that the City Council does hereby find, determine and declare upon evidence presented to the City Council as follows: SECTION I. The Project for which the property is being acquired is the Katella Avenue Smart Street Ninth Street to Humor Drive Project which consists of the widening and improving of Katella Avenue, including installation of street landscaping and public utilities. The Location of the Project is depicted generally in the project precise alignment dated March 8, 2005 and presented to the City Council as part of the record of hearing in this matter. SECTION II. The Property to be acquired is located within the City at 1680 and 1696 West Katella Avenue (Assessor Parcel Nos. 090 651 -19 and 090 651 -01) and 1818 South Euclid Street (Assessor Parcel No. 090 651 -04). The portions of Property the City seeks to acquire, and the Property interests sought, consist of the following: A. Fee simple title to approximately 7,445 square feet of the Property, as more specifically described in Exhibits "1", "3" and "5" hereto. 159/01 2377 -0103 719261.05 a04/02/07 B. A temporary construction easement for a total of approximately 673 square feet of Property, more specifically described as follows: Parcels "A" and "B" as described in Exhibit "7" and depicted in Exhibit "8" (approximately 143 square feet and 19 square feet respectively); The parcel of real property as described in Exhibit "9" and depicted in Exhibit "10" (approximately 248 square feet); Parcels "AA `B "C "DD "E" and "F" as described in Exhibit "11" and depicted in Exhibit "12" (approximately 263 square feet) The temporary construction easement shall consist of the interests described below: The temporary construction is a nonexclusive easement which permits City of Anaheim, its officers, agents, employees, and contractors, to enter upon, occupy, and pass over the temporary construction easement area more specifically described in the legal description, attached as Exhibits "7 "9" and "11" as deemed reasonably necessary for all purposes incidental to reconstructing and widening Katella Avenue in accordance with the approved street construction (the "Project The temporary construction easement shall include the right to perform within the temporary construction easement area, any necessary excavation, grading, earth fill, compaction, installation of concrete forms, landscaping, irrigation, utility, and sign relocation, accommodation of private drainage facilities, and deposit of tools, equipment, and material for all such -2- 159/012377 -0103 719261.05 a04/02/07 necessary activities which are reasonably incidental to the work being performed on said property in connection with the Project. Such incidental activities shall include, but not be limited to, utilizing the temporary construction easement area for adjusting grade differentials between the planned street and the adjoining real property and/or matching existing concrete and/or asphalt paved areas, and /or natural grade areas, or such work as may pertain to on -site improvements by Public Works to render the temporary construction easement area or the larger parcel to which it pertains in the same functional condition as reasonably practicable to the condition before the Project in terms of access, irrigation, and relation of public right of way improvements to the larger parcel. The temporary construction easement shall not include the right to store any materials or park any vehicles which are not incidental to the work to be performed on site in connection with the Project, nor to block all vehicular access to the larger parcel of property of which the temporary construction easement area is a part, nor exercise the uses of the easement outside of the temporary construction easement area. The temporary construction easement shall not include the right to store any materials or park any vehicles which are not incidental to the work to be performed on site in connection with the Project, nor to block all vehicular access to the larger parcel of property of which the temporary construction easement area is a part, nor exercise the uses of the easement outside of the temporary construction easement area. In connection with the exercise of the temporary construction easement rights hereunder, City shall protect all structures on the temporary construction easement area in place, excepting only those shown on the approved plans for the Katella Avenue Smart Street Ninth Street to Humor Drive Project as being modified, and shall protect or restore all unaffected improvements thereon. The rights granted hereunder shall commence fourteen (14) days after written notification to the property owner of the commencement of construction of the project and shall continue in full force and effect until written notice to the owner of record that the temporary construction easement is no longer needed by the City, or twelve (12) months after notice of the initiation of the temporary construction easement, whichever is earlier. Upon termination of the temporary construction easement, the temporary construction easement area shall be restored to a condition that is as functionally equivalent as is practicable to its condition prior to the commencement of the work, consistent with the project as designed and as to be constructed. C. A temporary, nonexclusive construction easement to permit the City, and/or its contractors, to enter onto the area more specifically described as parcel "B" in the legal description attached hereto as Exhibit "13 approximately 234 square feet, depicted in Exhibit "14 and in Parcel "B approximately 105 square feet, described in Exhibit "15" and depicted in Exhibit "16 and approximately 552 square feet, described in Exhibit "19" and depicted in Exhibit "20 attached -3- 159/012377 -0103 719261.05 a04/02/07 hereto, for the purposes of constructing or relocating signage, including the replacement and/or relocation of sign faces, poles, footings, wiring or electrical conduits, switches, or other electrical appurtenances for the illumination or operation of signs and sign structures, to maintain the continuity of signage on the property of which the easement area is a part, and also to accommodate the public improvements contemplated under the Katella Avenue Smart Street Ninth Street to Humor Drive Project. The Temporary Sign Construction/Relocation Easement shall include the right to install curbing or similar structures, to protect the relocated sign and sign appurtenances from vehicular damage. The Temporary Sign Construction/Relocation Easement includes the right to temporarily bring or store equipment, tools, and personnel onto the area of the easement, necessary or convenient for constructing or relocating signage, consistent with the improvements contemplated under the Katella Avenue Smart Street Ninth Street to Humor Drive Project. The temporary construction easement shall not include the right to store any materials or park any vehicles which are not incidental to the work to be performed on site in connection with the Project, nor to block all vehicular access to the larger parcel of property of which the temporary construction easement area is a part, nor exercise the uses of the easement outside of the temporary construction easement area. In connection with the exercise of the temporary construction easement rights hereunder, City shall protect all structures on the temporary construction easement area in place, excepting only those shown on the approved plans for the Katella Avenue Smart Street Ninth Street to Humor Drive Project as being modified, and shall protect or restore all unaffected improvements thereon. The rights conferred under this easement shall be effective upon written notice from the City or its contractor to the owner or occupant of the easement area of the initiation of this Temporary Sign Construction/Relocation Easement, and shall continue in full force and effect for three (3) months thereafter, at which point it shall expire. D. A temporary, nonexclusive construction easement to permit the City, and /or its contractors, to enter onto the areas more specifically described as parcels "A" and "D" in Exhibit "11", and depicted in Exhibit "12" (approximately 150 square feet, and 108 square feet, respectively); as parcels "A" and "C" in Exhibit "13 and depicted in Exhibit "14" (approximately 86 square feet, and 170 square feet, respectively); as parcel "A" in Exhibit "15 and depicted in Exhibit "16" (approximately 219 square feet), attached hereto, for the purposes of constructing or relocating driveway and other vehicular or pedestrian access facilities, to safely maintain the passage of pedestrian and vehicular access between the public rights of way and the property of which the area described in Exhibits "11", "13" and "15 is a part, and also to accommodate the public improvements contemplated under the Katella Avenue Smart Street Ninth Street to Humor Drive Project. The Temporary Driveway Construction/Relocation Easement shall include the right to install curbing or similar structures within the area of the easement, to direct vehicular traffic to the relocated driveway facilities, or protect the relocated driveway or access facilities from vehicular damage. The Temporary Driveway Construction/Relocation Easement includes the right to temporarily bring or store equipment, tools and personnel onto the area of the easement, necessary or -4- 159/012377 -0103 719261.05 a04/02/07 convenient for constructing or relocating driveway or other vehicular or pedestrian access facilities, consistent with the improvements contemplated under the Katella Avenue Smart Street Ninth Street to Humor Drive Project. The temporary construction easement shall not include the right to store any materials or park any vehicles which are not incidental to the work to be performed on site in connection with the Project, nor to block all vehicular access to the larger parcel of property of which the temporary construction easement area is a part, nor exercise the uses of the easement outside of the temporary construction easement area. In connection with the exercise of the temporary construction easement rights hereunder, City shall protect all structures on the temporary construction easement area in place, excepting only those shown on the approved plans for the Katella Avenue Smart Street Ninth Street to Humor Drive Project as being modified, and shall protect or restore all unaffected improvements thereon. The rights conferred under this easement shall be effective upon written notice from the City or its contractor to the owner or occupant of the easement area of the initiation of this Temporary Driveway Construction/Relocation Easement, and shall continue in full force and effect for three (3) months thereafter, at which point it shall expire. E. A nonexclusive, transferable temporary construction easement for building modification over approximately 1,532 square feet of property, more specifically described in the legal descriptions attached hereto as Exhibit "17" and depicted in Exhibit "18 attached hereto, for the purposes of modifying, reconstructing, relocating, repairing, or otherwise reconfiguring existing structural improvements, for the purpose of clearing rights of way required for the Project. The temporary construction easement permits the City of Anaheim, its officers, agents, employees, and contractors, and any transferee of the easement rights acquired hereunder, to enter upon, occupy, and pass over the temporary construction easement area more specifically described in the legal descriptions attached hereto a Exhibit "17" as reasonably necessary for all purposes incidental to modifying, reconstructing, relocating, repairing, or otherwise reconfiguring existing structural improvements for the purposes of clearing rights of way for the Project. The temporary construction easement includes the right to perform any necessary excavation, grading, earth fill, compaction, installation of concrete forms, landscaping, irrigation, utility, sign relocation, accommodation of private drainage facilities, deposit of tools, equipment, and material for all such necessary activities reasonably incidental to the work being performed. The temporary construction easement shall not include the right to store any materials or park any vehicles which are not incidental to the work to be performed on site in connection with the Project, nor to block all vehicular access to the larger parcel of property of which the temporary construction easement area is a part, nor exercise the uses of the easement outside of the temporary construction easement area. In connection with the exercise of the temporary construction easement rights hereunder, City shall protect all structures on the temporary construction easement area in place, excepting only those shown on the approved plans for the Katella Avenue Smart Street Ninth Street to Humor Drive Project as being modified, and shall protect or restore all unaffected improvements thereon. The -5- rights granted hereunder shall commence immediately upon written notification to the property owner, and shall continue in full force and effect until written notice to the owner of record that the temporary construction easement is no longer needed, or six (6) months after the notice of the initiation of the temporary construction easement, whichever is earlier. F. The Access Modification Easement is a limited, non exclusive easement to come on and over the described area of the easement, consisting of approximately 2,654 square feet of property, and more specifically described in the legal descriptions attached as Exhibit "21" and depicted in Exhibit "22 attached hereto, to construct an access doorway, ramp, and appurtenances consistent with the conceptual plans entitled "Building Modifications for Western Dental Building, 1696 W. Katella Ave., Anaheim, CA 92802," prepared by Dayton Architect Associates. The Access Modification Easement allows the City, and its contractors, to enter onto the Access Modification Easement area, and to bring necessary equipment and materials to accomplish the construction of the doorway entry feature provided for the south side of the building on the plan, and to relocate cabinetry consistent with the plan. The Access Modification Easement will also allow the City, and its contractor, to pass over those portions of the Access Modification Easement area also located on parking area, entryway areas, or other common areas of the shopping center of which 1696 W. Katella is a part, to access the area of intended modification construction, but not to park or store any vehicles or equipment on such common areas within the described Access Modification Easement area. The Access Modification Easement shall become effective upon fourteen (14) days written notice to the owner and occupant, and shall continue in effect until thirty (30) days thereafter, at which point it shall expire, and be of no further force or effect. The Access Modification Easement rights shall be non exclusive with respect to the rights of any lawful occupant to continue to utilize the Access Modification Easement area as much as practicable for business purposes, and in exercising the rights hereunder City, and its contractor, shall make all reasonable efforts to minimize any obstructions or disruptions from its use of the Access Modification Easement area to the existing occupant's uses. The temporary construction easement shall not include the right to store any materials or park any vehicles which are not incidental to the work to be performed on site in connection with the Project, nor to block all vehicular access to the larger parcel of property of which the temporary construction easement area is a part, nor exercise the uses of the easement outside of the temporary construction easement area. In connection with the exercise of the temporary construction easement rights hereunder, City shall protect all structures on the temporary construction easement area in place, excepting only those shown on the approved plans for the Katella Avenue Smart Street Ninth Street to Humor Drive Project as being modified, and shall protect or restore all unaffected improvements thereon. SECTION III. The public interest and necessity require the Project, in that the City's General Plan, and specifically the Circulation Element, calls for the improvement of Katella Avenue in the manner contemplated by the Project. The Project is designed to relieve regional 159/012377 -0103 719261.05 a04/02/07 -6- traffic congestion and improve the capacity of the street and the function of the intersection of Katella and Euclid. SECTION IV. The Project is located -in a manner most compatible with the greatest public good and least private injury, in that the design of the roadway widening must of necessity occupy land which is immediately adjacent to the existing roadway, in order to maintain the continuity of the alignment of the road for all users. The property to be taken for the project is necessitated and established by the street alignment in an effort to minimize any disproportionate burden or impact of the required property being taken from individual property owners. The project is designed in a manner compatible with the greatest public good, in that the Project will involve road widening, undergrounding of utilities, and upgrading parkway landscaping, along with drainage improvements. This will enhance the utility of the area and help improve traffic circulation. The Project is designed in a manner to cause the least private injury, because the series of temporary construction easements sought to be acquired are designed to preserve the existence and continuing functionality of the building at 1696 Katella, consistent with the design of the Project's roadway improvements, so as not to necessitate relocation of existing occupants threreof. SECTION V. The Property is necessary for the proposed Project, in that the roadway widening must occur on property immediately adjacent to the existing roadway. SECTION VI. The offer required by Government Code 7267.2 has attempted to be made to the record owners, by way of letter dated January 23, 2007. Staff has attempted to negotiate with the record owners subsequent to this offer, but such negotiations have not proved successful in securing the necessary property interests outside of more formal proceedings. SECTION VII. To the extent any of the property to be taken herein is devoted to a public use, the City finds that the proposed use for the Project is compatible with, or more necessary to, such public use, and that the City is authorized to acquire the Property pursuant to Code of Civil Procedure 1240.510 and 1240.610. SECTION VIII. The Project has been reviewed and approved under E.I.R. No. 538, adequately reviewed and certified in February 1993 through the OCTA, referenced in the Notice of Hearing which was sent in connection with this Resolution. The City Council finds and determines that since the time of that certification there have been no subsequent changes with respect to the circumstances under which the Project is to be undertaken, no new information of substantial importance regarding significant effects or mitigation measures or alternative which has become available, and no subsequent changes have been proposed in the Project which would require important revisions to the E.I.R. such that no further environmental review attending this proposed acquisition is necessary. SECTION IX. The law firm of Rutan Tucker, LLP, special counsel for the City of Anaheim, and the City Attorney are hereby authorized to prepare and prosecute in the name of the City, such special proceedings in the proper court having jurisdiction thereof, as are necessary for acquisition of the Property described herein, and to prepare and file such pleadings, documents, and otherwise prosecute such actions as may be necessary in the opinion of such attorneys to acquire for the City the Property. Such attorneys are specifically authorized to take 159/012377 -0103 719261.05 a04/02/07 -7- whatever steps and /or procedures are available to them under the Eminent Domain Law of the State of California, including, but not limited to, seeking orders for prejudgment possession of the property. The City Attorney is authorized to assign any work in such action to other attorneys as the City Attorney may deem appropriate. THE FOREGOING RESOLUTION is approved and adopted by the City Council of the City of Anaheim this 8th day of May 2007 by the following roll -call vote: ATTEST: 159/012377 -0103 719261.05 a04/02/07 AYES: Mayor Pringle, Council Members Hernandez, Sidhu, Galloway, Kr ing NOES: NONE ABSTAIN: NONE ABSENT: NONE CI CLERK OF THE C ANAHEIM CITY ANAHEIM -8-