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06 June 25, 2007 Property80808 RIVERSIDE COUNTY TRANSPORTATION COMMISSION PROPERTY COMMITTEE MEETING AGENDA TIME: 12:30 p.m. DATE: Monday, June 25,,2007 LOCATION: CONFERENCE ROOM A County of Riverside Administrative Center Riverside County Transportation Commission 4080 Lemon Street, Third Floor, Riverside, 92501 *** COMMITTEE MEMBERS *** Barbara Hanna / Brenda Salas, City of Banning Robin Lowe / Marc Searl, City of Hemet Bob Magee / Robert L. Schiffner, City of Lake Elsinore Rick Gibbs / Kelly Bennett, City of Murrieta Gordon Moller / Alan Seman, City of Rancho Mirage Steve Adams / Dom Betro, City of Riverside John F. Tavaglione, County of Riverside Roy Wilson, County of Riverside Marion Ashley, County of Riverside Comments are welcomed by the Committee. if you wish to provide comments to the Committee, please complete and submit a Speaker Card to the Clerk of the Board. 11.36.09 RIVERSIDE COUNTY TRANSPORTATION COMMISSION PROPERTY COMMITTEE (COMMISSIONERS STEVE ADAMS, MARION ASHLEY, RICK GIBBS, BARBARA HANNA, ROBIN LOWE, BOB MAGEE, GORDON MOLLER, JOHN TAVAGLIONE, ROY WILSON) 12:30 P.M. Monday, June 25, 2007 CONFERENCE ROOM A Riverside County Transportation Commission 4080 Lemon Street, 3rd Floor, Riverside, 92501 AGENDA 1. CALL TO ORDER 2. PUBLIC COMMENTS 3. ADDITIONS/REVISIONS - (The Committee may add an item to the Agenda after making a finding that there is a need to take immediate action on the item and that the item came to the attention of the Committee subsequent to the posting of the agenda. An action adding an item to the agenda requires 2/3 vote of the Committee. If there are less than 2/3 of the Committee members present, adding an item to the agenda requires a unanimous vote. Added items will be placed for discussion at the end of the agenda.) 4. APPROVAL OF MINUTES - NOVEMBER 27, 2006 AND MAY 27, 2007 Riverside County Transportation Commission Property Committee Agenda June 25, 2007 5. RIGHT-OF-WAY POLICIES AND PROCEDURES MANUAL Overview This item is for the Committee to: Pagel 1) Adopt the Right -of -Way Policies and Procedures manual as a new set of policy guidelines for the acquisition and sale of right-of-way, appraisal of real property, relocation of displaced individuals and businesses, and management of Commission owned real property; 2) Recommend that the Commission authorize the Property Committee to approve subsequent changes to the right-of-way policies and procedures manual; and 3) Forward to the Commission for final action. 6. CLOSED SESSION A. CONFERENCE WITH REAL PROPERTY NEGOTIATOR Pursuant to Government Code Section 54956.8 Negotiating Parties: RCTC — Executive Director or Designee Property Owners — Liston Brick Company of Corona Property Description: APN 279-230-003 Negotiating Parties: Seller: RCTC — Executive Director or Designee Buyer: BRE Properties, Inc. Property Description: APN 138-030-009, 138-030-024, 138-030-025, 138-030-026 7. ADJOURNMENT The next Property Committee meeting is scheduled to be held on 12:30 p.m., Monday, August 27, 2007, at. Board Room, County of Riverside Administrative Center, 4080 Lemon Street, First Floor, Riverside. AGENDA ITEM 4 MINUTES RIVERSIDE COUNTY TRANSPORTA TION COMMISSION PROPERTY COMMITTEE November 27, 2006 Minutes 1. CALL TO ORDER Chair Marion Ashley called the meeting to order at 1232 p.m., on Monday, November 27, 2006, at the Riverside County Transportation Commission's Office, 4080 Lemon Street, Third Floor, Riverside, California 92501 Commissioners Present •Commissioners Absent Marion Ashley Robin Lowe Bob Magee Roy Wilson John Tavaglione 2. PUBLIC COMMENTS There were no requests to speak from the :public. 3. ADDITIONS/REVISIONS• There were no additions or revisions to the agenda:. 4. CLOSED SESSION Conference with Real Property Negotiator Pursuant to Section 54956.8 Negotiating Parties: RCTC - Executive Director or Designee Property Owners - See. List of Property Owners Item APN Owner 1 247-150-008 247-150-009 247-150-011 Desai Family Limited Partnership and Rajendra/Anand Desai 2 342-240-013 342-240-014 342-240-015 Arlene D. Griffith et. al. There were no announcements from Closed Session items. RCTC Property Committee Minutes November 27, 2006 Page 2 ADJOURNMENT There being no other items to be considered, the . Property Committee meeting adjourned; at 1:04 a.m. Respectfully submitted, )1.)"^"-q-&— Jennifer Harmon Clerk of the Board RIVERS/DE COUNTY TRANSPORTATION COMMISSION PROPERTY COMMITTEE "COMMITTEE OF THE WHOLE" (Due to lack ,of a quorum, the Commissioners present operated as a "Committee of the Whole''.) May 24, 2007 Minutes 1. CALL TO .ORDER Second Vice Chair Bob Magee called the meeting of . the, Property "Committee of the Whole" to order at 1:10 p.m., on Thursday, May 24, 2007, . at the Riverside County Transportation Commission's Office, 4080 Lemon Street, -Third Floor, Riverside, California 92501 and Riverside County 4' District Office, 73-710 .Fred Waring Drive, Suite 222, Palm :Desert, California, 92260. Commissioners Present Bob Magee Roy Wilson* *via teleconference 2. PUBLIC COMMENTS There were no requests to speak from the public. 3. ADDITIONS/REVISIONS There were no additions or revisions to the agenda. 4. APPROVAL OF MINUTES — NOVEMBER 27, 2006 Approval of the :minutes was deferred until the next meeting when there is a quorum present. Commissioners Absent Marion Ashley Robin Lowe John Tavaglione RCTC Property Committee Minutes May 24, 2007 Page 2 AWARD AN EXCLUSIVE ' NEGOTIATING AGREEMENT FOR JOINT DEVELOPMENT AT THE RIVERSIDE -DOWNTOWN METROLINK'STATION TO . .THE ALAN MRUVKA. COMPANY DBA BLUE SQUARE - DEVELOPMENT GROUP Stephanie'Wiggins, Regional Program Director, provided background information on the Commission's joint development efforts .and presented the recornmendation for joint development at the Riverside -Downtown Metrolink station. M/S/C (R. Wilson/Magee) to recommend to the Commission 1) Award Exclusive Negotiating Agreement (ENA) No. 07=67-154-00 for Joint Development at the Riverside- Downtown Metrolink Station to The Alan_ Mruvka Company dba Blue Square Development Group and:. 2) Authorize the Chair, pursuant' to: legal counsel ::review, execute the agreement on behalf of ,the Commission. APPROVE A MEMORANDUM OF UNDERSTANDING WITH METROPOLITAN WATER DISTRICT FOR THE CONSTRUCTION OF THE PERRIS VALLEY PIPELINE AND THE PROVISION OF A SUBSTITUTE EASEMENT Min Saysay, Right -of -Way Manager, provided an overview of memorandum of understanding with Metropolitan Water District..: MIS/C (R. Wilson/Magee) to recommend to the Commission o:. 1) Approve Memorandum. of Understanding (MOU)`: No. 07-33-155-00 with Metropolitan Water District for the construction of the Perris Valley Pipeline in the San Jacinto Branch Line Rail Right -of -Way and for Provision of a Substitute Easement; and 2) Authorize the Chair, pursuant to legal counsel _(Adorno Yoss, Alvarado, & Smith) review, to execute the MOU on behalf ; of the Commission. . CLOS'ED. SESSION Due to a lack of quorum, the Closed Session items :wi'II be takendirectly to the Commission for final action. RCTC Property Committee Minutes May 24, 2007 Page 3 8. ADJOURNMENT There being no other items to be considered, the Property Committee meeting adjourned at 1:22 p.m. Respectfully submitted, )1)"1")-49-4L \-\ctA)m()r---- Jennifer Harmon Clerk of the Board AGENDA ITEM 5 RIVERSIDE COUNTY TRANSPORTATION COMM/SS/ON DATE: June 25, 2007 TO: Property Committee FROM: Min Sa.ysay, Right of Way Manager THROUGH: Cathy Bechtel, Project Development Director SUBJECT: Right -of -Way Policies and 'Procedures. Manual STAFF RECOMMENDATION: This item is for the Committee to 1) Adopt the Right -of -Way Policies and Procedures manual as a new set of policy guidelines for the acquisition and sale of right-of-way, appraisal of real property, relocation of displaced individuals and businesses, and management of Commission owned real property; 2) Recommend that the Commission authorize the Property Committee to approve subsequent changes to the right-of-way policies and procedures manual; and Forward to the Commission for finalaction. BACKGROUND INFORMATION: The Commission, has been reviewing and updating several of the key internal policies and procedures by which it operates. Some of the processes identified for review were the right-of-way policies and , procedures. The previous right-of-way policies and procedures were abbreviated and not comprehensive enough for the Commission's expanding role in project ,delivery. It is anticipated that the Commission will start delivery . of the Perris 'Valley Line (PVL) project in the coming FY 2007/08. Since the right-of-way acquisition is critical in the delivery of transit projects, the Federal Transit Administration (FTA) requires that the agency responsible for the delivery of a transit project, such as the PVL, adopt a set of policies and procedures for a right-of-way acquisition. The Federal Highway Administration (FHWA) likewise requires that agencies who will engage in right-of-way acquisition adopt a set of policies and procedures that comply with federal and state;:regulations. It should be noted, however, that when the Commission acquires right-of-way for highway projects that will be incorporated in the state highway system, the Ca!trans right-of-way manual has to be followed as well. Agenda Item 5 Staff. developed an updated Right -of -Way Policies: and Procedures Manual. (ROW manual) that meets, the requirements of, and conforms .to federal statutes and ° regulations: -(Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970,,as amended, and implemented by,.,49 CFR Part 24), and state statutes and regulations (California Government Code Section 7260-7277, ' as implemented by the California Relocation Assistance and Real Property Acquisition Guidelines, Title 25 California Code of Regulations, Chapter 6; Article 1, Section 6000et seq and the California Code of 'Civil Procedure Section 1230.010 — 1230.070). The ROW manual has : been reviewed by the Commission's legal counsel, Best Best & Krieger. ROWManual Highlights The new ROW manual incorporates the essential elements needed to comply with federal and state regulations. The 'ROW manual does the following: • Ensures that owners of real property to be acquired. for Commission projects are treated .fairly and consistently, encourages and expedites ;acquisition :by agreements with such owners, minimizes .litigation` and , promotes public confidence in Commission land acquisition programs; Ensures that persons and businesses displaced .as a direct result of Commission pr'O`jects are ':treated fairly,: consistently, and equitably so that - such persons will .not suffer disproportionate injuries as a result of projects designed for the benefit of the public as a whole;. Requires that. an appraisal, based on fair :market value, be prepared for all properties. to be purchased ,or sold by the Commission, except in instances allowed by ,federal : or state regulations. An example would '.be when the, property ert to be sold contains. an area 'less than 5,000 square .feet; , p P Y Ensures that the Commission receives the highest value for the sale :of Commission owned properties while complying with state , and . federal regulations governing disposal of agency owned properties; Establishes thresholds for executive staff approval of administrative settlements for purchase of ,right-of-way; Creates an ::administrative Appeals Board that :is authorized to hear complaints from displaced : individuals and businesses relating to staff . determination of relocation benefits; Outlines best ;practices in managing Commission owned properties; Establishes guidelines for licensing and leasing Commission properties; Complies with recently adopted state laws, such as SB 1210 and Provides quick reference to Commission :staff and the public. The new ROW manual provides the Commission- with a formal set of policies and procedures that will assist in all aspects of right-of-way acquisition and property management, and complies with federal and state regulations. Attachment: Right -of -Way Policies and Procedures Manual Agenda Item 5 POLICIES and PROCEDURES TABLE OF CONTENTS CHAPTER 1 GENERAL INFORMATION I-1 CHAPTER II RIGHT OF WAY,MANAGEMENT PLAN 11-1 CHAPTER III TITLE REPORT, ESCROW SERVICES III-1 and DEEDS CHAPTER IV SURVEYS and LEGAL DESCRIPTION IV CHAPTER V APPRAISALS CHAPTER VI ACQUISITION, NEGOTIATION and ;EMINENT DOMAIN CHAPTER VII RELOCATION ASSISTANCE V-1 VI-1 VII-1 CHAPTER VIII PROPERTY MANAGEMENT VIII-1 CHAPTER 'IX DEMOLITION, CLEARANCE and IX-1 CERTIFICATION CHAPTER X ENVIRONMENTAL INSPECTION, X-1 REMEDIATION and MITIGATION CHAPTER XI UTILITIES RELOCATION X1-1 CHAPTER 1 GENERAL INFORMATION TABLE OF CONTENTS Section 1-1 Introduction 1-1.1 Reason 1-1.2 Scope 1-1.3 Purpose 1-1.4 Federal Regulations 1-1.5 State Regulations 1-1.6 FHWA, FTA and State... RCTC Relationships. 1-1.7 Communications and Letter Writing 1-1.8 Public Relations Section 1-2 Subdivision of Manual 1-2.1 Explanation .of Index 1-2.2 Form Numbering 1-2.3 Issue and Revision Dates 1-2.4 Retention of Revised Material Section 1-3 Discriminatory Practices 1-3.1 General Policy Concerning Discrimination 1-3.2 Employment Practices 1-3.3 Contract Procedures 1-3.4 Right of Way Acquisition 1-3.5 Property Management 1-3.6 Relocation Assistance 1-3.7 Records and Reports CHAPTER GENERAL INFORMATION Section 1-1 1-r1.1 Reason Introduction Right of Way acquisition, property management, and; property disposition are a complex function. It is :therefore imperative that policies be writtenand procedures established to enable each member of the Right of Way 'Department to be completely informed and able to perform their duties in a skillful :manner. Each right of way employee should perform his orher assigned duties in a professional manner. . 1-1.2 Scope This manual contains the regulations, requirements. and procedural directives governing .the operations of the Right of Way Department. It will be . updated,; amended and. revised as needed by the RCTC Property Comrnittee. 1-1.3 Purpose This manual: is to be usedas the policy and procedures guide for Right of VVay acquisition, property management, and property disposition for: (i) all projects funded by the Federal. Transit Administration; (ii) state -funded projects, 'unless the right of way will ,be incorporated into the State Highway system; and iii . 9 Y p g Y Y (� locally funded projects. It establishes a uniform method for completing each phase of the right of way operation. Any deviation from the ,prescribed policy needs written authority from the Executive Director or designee.,:, 1-1.4 Disclaimer This manual is for internal guidance purposes. It is not intended .to and does not create any additional rights, liabilities, defenses or causes of action not already arising under existing law: To the extent any provisions or procedures in this manual conflict with. applicable State or Federal legal requirements, those State or Federal legal requirements shall prevail. The RCTC Executive Director and legal counselshall have the authority to make interpretations of the provisions ofthis manual ;and to determine the applicability of its requirements to specific projects or .properties. 1-1.5 Initial Determination of''Funding Sources The right of way acquisition and relocation requirements set forth' in this manual are not intended for use in conjunction with projects funded , by the 'Federal - 3 - 7 Highway Administration or for State -funded projects, if the right of way will be incorporated into the State Highway system. In either of these cases, the Caltrans Right of Way Manual and the Caltrans Local Assistance Procedures Manual will ,govern right of way activities,except as to matters not addressed in either of the foregoing manuals, in which case this .ROW Policies and Procedures manual shall apply. An initial determination of funding sources should be made prior to the commencement of right of way activities. 1-1.6 Federal Regulations Federal regulations governing right of way acquisition are .found in 49 CFR Part 24. Compliance with these regulations is required if federal funds are to be used in any part of a project. The policy and procedures outlined in the following chapters of this manual are written to include Federal Transit Administration requirements. 1-1.7 State Regulations All laws, policies and regulations passed by the State of California governing right of way acquisition shall be complied with, including but not limited to Title 25 California Code of Regulations section 6000. 1-1.8 FHWA, FTA and State - - RCTC Relationship RCTC .right _of way personnel will work cooperatively with. the. Federal Highway Administration, Federal Transit Administration' and- State of ` California Transportation Department right of way, as applicable, to .assure that all federal and state requirements for right of way acquisition are met. RCTC right of way personnel will make right of way records available for inspection upon request by FHWA, FTA and Caltrans. Any correspondence regarding right of way acquisition .discrepancies or deficiencies from the, inspecting agency shouldbe:. transmitted to the 'RCTC Executive Director. The Executive Director will examine the contents of the written reports and determine those deficiencies or discrepancies that are not in compliance with approved RCTC policies and will notify the Right of Way Department of any adjustments in operating procedures that need to be improved or changed. 1-1.9 Communications and Letter Writing Good communication, whether inter -department correspondence or. outside correspondence is essential. Copies of correspondence must be directed to all interested parties and placed in pertinent. files. Instructions provided during telephone conversations should be confirmed by letter or memorandum and copies must be placed in pertinent files explaining actions taken in response to telephone instructions. 1-1.10 Public Relations Right of Way personnel are public relations agents of RCTC as they have direct contact with the public. The appearance, attitude.,and reliability of the individual right of way employee creates an image of the RCTC in the eyes of those with whom they come in contact. Every effort must be made to reflect an image that is a credit to each employee and to RCTC. -5 9 CHAPTER GENERAL INFORMATION Section 1-2 Subdivision of Manual 1-2.1 Explanation of Index This manual is divided into chapters as set out on the index. Each chapter is indexed individually to allow additions, deletions and changes to be made without affecting the continuity of the overall manual. Chapters are divided into sections and numbered numerically. ;Each section is divided into subjects, which are also numbered numerically. 1-2.2 Form Numbering - The forms and exhibits pertaining to each section will follow immediately, after the section and .will be numbered numerically. The form and exhibit number will relate directly to the subject chapter and section numbers in which they are discussed. 1-2.3 Issue and Revision Dates Each page and form is dated -in the lower -right-hand corner and each revision issued in the future will show the revised date: 1-2.4 Retention of Revised Material _ When revised material is issued, the revisions should immediately be placed in the manual. The Right of Way Department will keep a permanent record of all revised sheets. -6- 10 CHAPTER 1 GENERAL INFORMATION 1-3.1 General Policy' Concerning Discrimination Under ;no circumstances shall any form of discrimination be practiced: by, any employee or any party under contract with the RCTC, or on the part:of any other party ;carrying out any phase of the Commission's, right of ,way acquisition and relocation program: Supervisors and: all others responsible for carrying: out the right of way acquisition and relocation program must be constantly aware of the necessity for identifying, reporting, eliminating and/or correcting any discriminatory practice,' which ;may occur. Ari'y clearly defined practice suspected of .being discrirninatory must .be reported to the Executive Director, who will cause the discriminatory claim to be investigated and, if sustained, see that appropriate corrective action.is taken.' -7- 11 CHAPTER II ROW MANAGEMENT PLAN TABLE OF CONTENTS Section 2-1 Introduction 2-1.1 Purpose 2-1.2 Scope Section 2-2 Right of Way Acquisition 2-2.1 Authority of RCTC to Acquire 2-2.2 State Laws 2-2.3 Federal Laws and Regulations 2-2.4 Overview 2-2.5 Interest to be Acquired 2-2.6 Title Insurance 2-2.7 Identification and Certification of 'Right of Way 2-2.8 Scheduling Section 2-3 Appraisal 2-3.1 Purpose 2-3.2 Basic Appraisal Process Section 2-4 Environmental Inspection 2-4.1 Purpose 2-4.2 Procedure 2-4.3 Documentation Section .2-5 Negotiations 2-5.1 Acquiring Agents 2-5.2 Procedure -8- 12 Section 2-6 Relocation Relocation Agents Relocation Program Appeal Process Section 2-7 Right of Way management 2-7.1 Scope 2-7.2 Right of Way Inventory 2-7.3 . Aging and Receivables Report Section2-8: Utility Relocation 2=8.1 Identification 2-8.2 Critical Path -9- 13 CHAPTER II ROW MANAGEMENT 'PLAN Section 2-1 Introduction 2-1.1 Purpose The Right of Way function encompasses several disciplines. The purpose of the Right of Way Management Plan ("RMP") is to provide an overview of the Commission's right of way activities. This RMP is presented in general terms and will be amended or modified pursuant to the nature of the Project and Funding Source requirements. Detailed Right of Way, Policies and Procedures will be presented and discussed in succeeding chapters. 2-1.2 Scope Included in the Right of Way function are right of way acquisition, relocation of displaced individuals and businesses, ROW engineering and surveying, appraisal, property management, utilities relocation and environmental inspection and remediation. -1- 14 CHAPTER II ROW MANAGEMENT PLAN Section 2-2: 2-2.1 Authority of RCTC to Acquire Public Utilities Code Section 130220 authorizes the Commission to make contracts.... in connection with eminent domain proceedin gs or otherwise... 2-2.2 State Laws With respect to ';initiation of condemnation proceedings, the following California Codes apply: - Right of Way Acquisition a. California Code of Civil Procedure Section 1230.010 . b California Government Code Sections 7260-7277 2-2-3 Federal Laws and. Regulations The following federal regulations and policies may apply to the Right of Way program ,on -a case -by -case basis, as applicable: a. Uniform Relocation Assistance and Real property Acquisition ;Policies Act, of 1970, as amended (42 U.S.C. 4601 et seq.) 49 CFR 'Part 24, as further amended by the Surface _Transportation and Uniform Relocation Assistance Act of 1987, Title IV of Pub. L. 100-17. b. 23 CFR Parts 130,480,620,630,635,645,710,712 and 713 The Fede'ral Highway Administration, .Right of Way Program Administration. c. Federal Highway Administration, Office of Real :Estate, Project Development Guide. d. Federal Transit Administration Circular 5010.1 C dated September 7, 1995, as :amended, titled Federal Transit Administration Grant Management Guidelines. 2-2-4 Overview The ROW acquisition :program is designed to ensure the timely availability of those parcels necessary for construction and ensure the fair, uniform and equitable treatment of those displaced from their homes and businesses as a result of an ;RCTC project. The acquisition process is divided into the following categories: identification of right of -2- 15 way requirements; appraisal of required interest, negotiation and .acquisition either through settlement or condemnation; and finally, relocation. as required. . These activities are scheduledby the ROW Program Manager against established construction deadlines. A flowchart outlining the sequence of typical acquisitions and relocation activities is provided in Attachments 1-1 and 1-2. 2-2.5 Interest to be Acquired Long-term real estate interests typically .fall : under three :categories: , (1), a fee simple estate; (2) a leasehold estate having .a term of twenty or more years; and (3) easements. Accordingly, the RCTC must have direct and sustaining control and unrestricted use of the properties in accordance with the terms and conditions of the project. Temporary construction .easements, temporary use permits, licenses and right of entry agreements are examples of temporary property :rights generally obtained. to perform various types of work incidental to construction. The type of work to be performed determines which type of agreement is to be used. Temporary construction easements are acquired for such things as access during construction, establishment of detour roads, construction staging and storage areas where the specified use is essential to completion of construction. The acquisition of temporary use permits and right of entry agreements are typically used when obtaining permission to complete soil borings, archeological testing, hazardous materials testing, sloping of lawns, or reconstruction of driveways,. where a_nominal- amount .of money is involved and the effect of termination would not jeopardize completion of the project. 2-2-6 Title Insurance In case of temporary property -rights, preliminary ownership information is obtained. Title Insurance is secured for the long-term property interests, insuring -:title effectively free and clear of any liens and encumbrances other than current year's taxes and assessments and easements, covenants and restrictions, which do not materially or adversely affect the use of the property for the project. Title Insurance is always accompanied by a thorough title examination, which seeks to discover if any defects exist. The Title Insurance Policies are issued shortly after closing (the date the .RCTC takes ownership of the property, e.g., the date when the deed to the Commission is recorded). Under the Policy, the Title Company agrees to defend the title of the ROTC, as the insured. 2-2.7 Identification and Certification of Right of Way Identification of the parcels required for the project begins in Preliminary Engineering andis concluded by the Project Management Consultant (PMC) during final design. This includes not only the 'long term property rights required to accommodate the project alignment, stations, station entrances and permanent parking facilities, but also the temporary property rights required for: construction access and storage yards. -3_ 16 Detailed ROW requirements are identified and recommended by the PMC. To support_ a recommendation, the :PMC is required to prepare an acquisition package to .include a ROVV plat showing ;the location, size and shape of the parcel to be . acquired; a legal description of the area to be acquired; as well as the name(s) of property owners; .and computations of the ,areas to be acquired. Scheduling The : PMC.: develops the .`priorities, by project segment, for ROW acquisition activities. However, the ROW Program Manager identifies within each project segment; the priorities for ROW acquisition by parcel in order to meet the construction schedule. The schedule identifies. projected dates for the various' stages of the ROW: acquisition process and is updated regularly. The RCTC evaluates the ROW acquisition date to ensure 'there are no conflicts' and ensure integration of information into the Master Project Schedule. -4- 17 CHAPTER II ROW MANAGEMENT PLAN Section 2-3 Appraisal 2-3.1 Purpose Appraisals are used to establish a basis for determining just compensation. An appraisal .will be required in . all cases, unless otherwise approved by the RCTC legal counsel. The 'Uniform Act, as well as FTA policy and procedures, requires that one appraisal and a reviewer's analysis be obtained on all parcels proposed for acquisition, except when the estimated fair market value is $10,000 or less. to such case, a reviewer's analysis may not be required. 2-3.2 Basic Appraisal Process The selection of independent fee appraisers is based on qualifications and experience for the property being appraised in accordance with criteria for appraisals' contained in 49 CFR Part 24. Appraisers must be qualified to give expert testimony in support of their value estimates in the event of condemnation proceedings. The property owner is notified in writing of the RCTC's interest in acquiring property rights and basic protections provided to the owner by law. The owner or the owner's designated representative is given an opportunity to accompany the appraiser during the appraiser's inspection of the property. The amount is approved by the review appraiser, and the Executive Director or designee has final approval of offers of just compensation. When the RCTC project is 'FTA funded, FTA prior concurrence is required when the reviewer's recommended offer of just compensation exceeds $250,000 and when an administrative settlement exceeds $50,000 of the offer of just compensation. FTA may consider higher thresholds. FTA, FHWA and Ca!trans (depending on the funding source) concurrence thresholds, appraisal and settlement guidelines should ,be strictly adhered to. When there is a contamination .factor or hazardous substances/wastes affecting the property, the estimated cost to remediate the contaminated property needs to be -5- 18 forwarded to the ROTC appraisers for consideration and possible inclusion in establishing fair market value. _g_ 19 CHAPTER II ROW MANAGEMENT PLAN Section 2-4 Environmental Inspection 2-4.1 Purpose ROW acquisition for projects carries with it certain responsibilities to the community. This policy addresses environmental concerns involving residential, commercial and industrial properties, which may .be wholly owned by the Commission or jointly held with other owners. 2-4.2 Procedure The procedure requires. the RCTC to hire a consultant to perform remediation of hazardous wastes and asbestos abatement. The Commission directs the investigation, identification, control and disposal of hazardous wastes, contaminated soil or other materials in accordance with the Environmental Protection Agency and other applicable governmental regulations. Depending upon the nature of the hazardous material (usually waste products), its origin and the intensity of the product generation, decisions as to the extent of hazard protection are made on a case -by -case basis. For example: a. Residences are usually not major generator, but are examined for: Cement asbestos wall shingles Certain pipe (steam) or boiler wrappings Lead paint and other conditions. b. Commercial properties may generate hazardous materials due to: Waste products used to cover or treat road or parking lot surfaces Abandoned transformers containing PCB type immersion fluids Asbestos and other: products c. ' Industrial properties may generate hazardous materials such as: By-products and other not useful products Buried waste Insulation products (asbestos) PCB products or similar materials Underground Storage Tanks and other wastes d. Vacant land and ROW properties accumulate as a result of. -1- 20 Spills Indiscriminate storage and/or dumping Irresponsible management of hazardous materials Accidents e: Each type of property is handled in the following manner: Identification of hazardous waste materials as officially (Federally) defined Examination of potentially hazardous site to determine the `risk of hazard, if any by:, a field examination by RCTC representatives, -preparation of a . list of areas and the :degree of concern; andpreparation of a schedule :to address the issue Evaluation of the hazard, to determine responsibility for cleanup: Existing:Owner and prior owner(s) and their use of .the property Legal opinion where appropriate Identificationof(funding source) authority to utilize ° grant. funds :the .ROW cleanup 2-4.3 Docurnentation The following steps may be utilized to prepare the documentation for 'identification of :. potential_ hazards and their ultimate disposal and mitigation: - a. perform an environmental analysis, utilizing appropriate procedures; b. perform hazard; surveillance to insure a satisfactory identification of: the potential c. prepare a RFP to obtain proposals for hazardous materials removal; . d. review proposals received for removal e. participate in contracting for hazardous materials removal; review :work schedule to conform to survey need; provide adequate surveillance to ensure hazardous :materials ;are thoroughly 9. p q 9 y. and properlyremoved; h. ensure .,all governmental (Federal & State) approvals and clearances are secured; and . provide approval of contractor and consultant applications for payment. -2- 21 CHAPTER II ROW MANAGEMENT, PLAN Section 2-5 Negotiations 2-5.1 Acquisition Agents ROW consulting firms are often retained to assist .negotiations for land acquisitions. It has been clearly shown that such procedure is in the public interest because (1) the RCTC staff is not large enough to adequately acquire the required ROW; (2) the amount of the fee is not determined on a percentage basis; and (3) the fee is just and reasonable for the work to be performed. 2-5.2 Procedure Every reasonable effort is made to acquire all interests in real property by voluntary conveyance through negotiations. The general procedures utilized during the negotiation process are as follows: a. The . ROW Program Manager or a ROW Consultant contacts each property owner to deliver a written offer of the approved amount of just compensation and to discuss the RCTC's acquisition :policies and procedures. Whenever practical, negotiations are conducted by direct, personal contact with the .property owner or his/her_ representative... b. The written offer is accompanied by a summary indicating the basis for the amount established as just compensation. The statement identifies any improvements considered to be part of the real property for which the offer of just compensation is made. c. The property owner is notified in writing by the ROW Program Manager (or designee) of their eligibility for applicable relocation assistance and provided a written description of the Commission's relocation program and their rights under the Uniform Relocation Act. d. A reasonable amountof time, normally thirty days, is given Ito the owner to consider the offer and to :present information, which may not have been considered during appraisal. If requested by the owner, a summary of the appraisal may be provided. The Commission will consider the owner's presentation. Once agreement is reached and the proper forms executed, the transfer of ownership is completed. e. In cases where the owner rejects the original offer and it is feasible to increase the offer rather than file for condemnation, an administrative settlement may be negotiated. Decisions on administrative settlerrients are coordinated by the ROW Program Manager and based on items, such as, the appraiser's opinion of value, recent court awards for similar types of property, -1- 22 the opinion of Legal Counsel and the economic risks involved in the condemnation process. If In the opinion .of the ROW Program Manager, the possibility of, reaching agreement by negotiation has been exhausted, a writtenrequest to proceed with condemnation: is directed to Legal Counsel. Condemnation is the feast desirable acquisition method and is only used when all, other' methods have failed. Negotiations may continue between the RCTC legal counsel arid the owner's .attorney during any conderrmnation action in an effort to reach settlement -2- 23 CHAPTER II ROW MANAGEMENT PLAN Section 2-6 Relocation 2-6.1 Relocation Agents Relocation consultants are generally retained to develop .a relocation plan, administer relocation assistance and benefits as required, pursuant to the Uniform Relocation Act. It has been clearly shown that such a procedure is in the best interest of the public, similar to retaining negotiation consultants. 2-6.2 Relocation Program The Uniform Relocation Act provides for certain relocation advisory services and payments in addition to the amount a person .receives as just compensation for property. The RCTC relocation program is designed to conform to the requirernents of the Uniform Act and to provide the maximum assistance possible to the relocated owners and tenants. A relocation advisory: program is established to provide the maximum assistance possible to all persons required to relocate. The relocation consultant implements the program under the supervision . of : the ROW Program 'Manager (or designee). Relocation brochures are available to .describe the relocation • benefits available to residential and commercial displacements. 2-6.3 Appeal Process Any person aggrieved .or otherwise dissatisfied by a._ determination regarding their eligibility for a relocation payment or by the amount of any such payment may file an appeal requesting review of their case by the RCTC Appeals Board within 60 days after receipt of RCTC's determination of the person's claims: -3- 24 CHAPTER 11 ROW MANAGEMENT PLAN Section 2-7 2-7.1 Scope Right of Way: 'Management involves :the control and management of land and p improvements from p the time title is vested with the ROTCuntil the property is used for the purpose it was acquired It is the function concerned with the interim management of all newly acquired ROW and any improvements thereon, includingdemolition and disposition of excess 'ROW remnants or property rights: In cases where there are existing contracts, such as leases ` or licenses, involved in the ROW acquired, it will encompass management of those contracts. Right of Way 'Management 2_-7.2 Right of Way Inventory An important property management tool is the ROW Inventory. A computerized indexing system for all Commission 'ROW is developed by the ROW Program Manager, with ;the assistance of the Information Systems Department. Individual property sheets include information such as type and description of asset, title policy and parcel ID nurnbers, legaldescription, type .of interest, term and rental, instrument of conveyance - and :effectivee date; liens and encumbrances, appraisal value, °acquisition cost and (federal or State) shareof acquisition cost expressed in dollars and dollars per square foot. The data in this system is cross-referenced to survey, ROW and other pertinent design drawings 'prepared for the-project,using computer aided drafting devices. Also, Within this system.; the forecast .and actual dates for milestones in the property transfer process are maintained. A reportshowing this -information is updated and is issued to Federal' and State agencies, the PMC and others as necessary. The system will likewise satisfy FTA quarterly reporting and audit requirements. 2-7.3 Aging and Receivables Report In cases where there are existing contracts involved in : the ROW acquired, an Aging/ .Receivables Report will be developed. This Report will include the name of the tenant/licensee, location of the: subject property, monthly/annual rent, date rent is due, terms renewal options; date rent will be increased and the basis for rent increase,. payment status. All future leases, licenses and right of entry agreements` should include "boiler plate" provisions . such as. (a) RCTC's right to terminate by providing 30 days written notice to the lessee; (b): RCTC's right to enter and inspect the property at any time; (c) indemnification and hold 'harmless .clauses; and (d) insurance provisions to protectthe RCTC against liability. The Report should be, generated on a quarterly. -4- 25 basis. The ROW Section will coordinate accurate and timely reporting with the Accounting Department. CHAPTER II PROJECT MANAGEMENT PLAN Section 2-8 Utility Relocation 2-8.1 Identification During the design and engineering process, utilities affected by the proposed construction will be identified. Typically, the affected utilities may need to be relocated, protected in place or possibly abandoned. Early identification of affected utilities and early coordination with the affected utility company is highly recommended as timely design and completion of all utility adjustments affect the RCTUs ability to commence construction. The PMC staff will identify all necessary utility relocation sites, in consultation with RCTC engineering staff. 2-8.2 Critical Path In preparing the Right of Way Acquisition Schedule, the Right of Way Section will 'give priority to acquiring properties or property interests necessary for utility relocation. Right of Way staff will be responsible for the negotiation, preparation and execution o utility relocation agreements. It will monitor 'utility relocation costs and expenses. -5- 26 C� n N CHAPTER III TITLE REPORT, ESCROW SERVICES and DEEDS TABLE OF CONTENTS Section :3-1 Title Report 3-1.1 Purpose 3-1.2 RCTC Policy 3-1.3 Title Information 3-1.4 Title Insurance 3-1.5 Title Companies Section 3-2 Escrow Services 3-2.1 Purpose 3-2.2 RCTC Policy 3-2.3 Escrow Instructions 3-2.4.. Payment and Closing Procedure 3-2.5 Escrow Companies_ Section 3-3 Deed 3-3.1 Fee Simple Title 3-3.2 Conveyances _ - 3-3.3 Forms CHAPTER III TITLE REPORT; .ESCROW SERVIC:ES? and DEEDS` Section 3-1 3-1.1 Purpose Title Reports, are needed for the purpose of establishing ownership, property dines and transferring clear title to the property or property rights being acquired. by ROTC. Title Reports are used .in the preparation of surveys, legal descriptions, Right of WayContracts and utility relocation plans. 3-1.2 RCTC Policy It is the policy of ROTC to obtain a title report on all feesimpleand less than fee simple, property rights acquisitions. Uponcompletion of the final design of the. Project, the Project Management Consultant or RCTC Right of Way staff may order the Title Report from an approved Title Company by providing individual Property Tax I.D. Numbers, property address or Assessor's Map. 1.3 Title °Information: The following title information are usually included in a Title Report: a Owner(s)' name(s) and total area of contiguous ,land comprising the ownership b. Special: assessments c. Trust deeds and mortgages d. Liens and encumbrances, such as, taxes, easements and judgments e: Covenants and restrictions An updated Title Report should be ordered prior toclosing escrow on : the purchase of properties and property interests - or ;prior .to filing a Condemnation Petition. 3-1:4 Title Insurance An Owner's Policy of Title Insurance is secured for the long :term property interests, insuring title effectively free and clear of any liens and ;encumbrances other than current year's taxes and assessments and easements, ,covenants and restrictions, which do not materially or adversely affect the use of the property for the project. -2- 29 3-1.5 Title Companies An approved list of "On Call" Title Companies will be established through the RCTC Procurement Process. 3- 30 Section 3;-2 . CHAPTER III TITLE REPORT, ESCROW SERVICES and DEED, Escrow Services To ensure that the title and ownership of properties and .property interests acquired by RCTC. are free and clear of liens and encumbrances .that will adversely affect the use of the property for the Project: RCTC General Practice It is the general practice of RCTC to secure the services of an Escrow Company in all of its transactions involving the acquisition of ,properties'. and property interests. 3-2.3 Escrow Instructions A pro=forma document titled "Escrow Instructions" will be prepared through FTC's Legal_ Counsel. Instructions to escrow: companies: should be simple, clear andshould include the following: Proper identification of the property or property interests :being acquired List of enclosures,, such as, grant deed, quitclaim deed, lease Instructions, toescrow agent to utilize the documents when :ready .to close escrow :and issue a Policy of Title Insurance in the amount specified, in the escrow instruction, vesting title to ROTC; free and :clear of encumbrances, except those otherwise stated A 'statement indicating which of the title ;;exceptions, Listed inthe title report, will be taken "subject to" by RCTC and should on the Title Policy An instruction as to disposition of taxes An authorization to pay the properdemands from lien holders, in: accordance :with the Real Estate Sale Contract and pay the balance to RCTC's,,grantor(s) 3-2.4 Payment .and Closing Procedure The 'Escrow Companyshall; prior to payment and escrow closing, obtain from ;- P Y - 4 - 3 1 the grantor(s) their Tax identification Number or Social Security Number or Federal Employer Identification Number. A procedure for delivery of RCTC payment for the acquisition of the property and escrow fees will be established by Right of Way staff with RCTC Accounting Department. It will be the responsibility of Right of Way Staff or the Acquisition Consultant that all documents and payment required for escrow closing be delivered as scheduled. The closing instructions will be reviewed to determine whether all necessary instruments to clear title in the manner required by the 'Real Estate Sale Contract have been executed and recorded. Taxes shall be pro -rated or in cases of partial acquisitions, properly segregated upon recordation of the deed conveying the property. to ROTC. 3-2.5 Escrow Companies An approved list of "On Callas Title Companies will be established through the RCTC Procurement Process. -5- 32 CHAPTER III TITLE REPORT, ESCROW SERVICES and DEEDS Section 3:-3 3-3.1 - Fee Simple Title. An. unencumbered fee simple title to real property gives its owner the' right to use and enjoy the property in any manner, provided its uses are, in compliance with prevailing laws and ordinances. Fee simple title represents the whole bundle of rights over real property from which many pieces or segments maybe conveyed or leased. 3-3.2 Conveyances a: Grant Deed — The transfer of all rights and control over real; property_' It ;is used to .acquire fee simple title to real property. Easement Deed — The transfer of less than fee simple 'title to; real property. .Easement -Deeds may be Permanent or Temporary dependO on Project requirements. It also includes Aerial, Easements. c Quitclaim Deed.- The transfer of any right over real property. This, is the least desirable means of acquiring property rights. Forms All forms, of legal instruments used to acquire property and property rights, on behalf of RCTC shall be "approved as to form" by RCTC's Legal Counsel. -6- 33 -7- 34 CHAPTER 1V SURVEYS and LEGAL DESCRIPTION TABLE OF CONTENTS Section; 4-1 Surveys 4-1.1 ;Purpose - 4-1.2 RCTC Policy 4-1.3 Survey Companies Section 4-2 Legal Description 4=-2.1 Purpose 4-2.2 Methods of Legally 'Describing the Fee or Portion Thereof 4-2.3 Description Writers -1- 35 CHAPTER IV SURVEYS and LEGAL DESCRIPTION Section 4-1 Surveys 4-1.1 Purpose To establish and calculate property ownership boundaries, right of way requirements, excess land and remainders. It is used as a basis for all right of way acquisitions and legal descriptions. 4-1.2 RCTC Policy It is RCTC's policy to establish property boundaries for: a. Total acquisition parcels b. Partial acquisition parcels c. Acquisition of Easement rights Surveys shall be signed and sealed by a licensed surveyor or engineer. 4-1.3 Survey and Right of Way EngineeringCompanies An approved list of "on call" Survey Companies will be established through RCTC's Procurement Process-. -2 36 CHAPTER IV SURVEYS and LEGAL DESCRIPTION Section 4-2 4-2.1. Purpose The purpose of .a legal description is to accurately define,' from' legally established monuments and survey data, land areas or rights to be conveyed. 4-2.2 Methods of Legally Describing the Fee or Portion Thereof -Metes and Bounds. ' This method definesthe perimeter of the area by directions and/or bearings and distances. This type of description, must commence at a known established monument, such as section corner, . % section corner or "tied" to a subdivision or portion thereof that has been previously filed at a Recorder's office. Legal Description Centerline or Baseline Description. In most: instances, legal descriptions for highway usesare centerline or baseline descriptions. ' The baseline method is employed in the same manner as the centerline'' except right of way is -dimensioned from the baseline rather than centerline., When the baseline°;is used it,should be, whenever possible, referenced to: thecenter of the median of the highway. Thecenterline or baseline for right of way descriptions must be "tied".to section corners, or % section corner or center of section or lot corners of properly filed subdivisions. % % calls with section, township and range,, The method of legally describing the properties or property, interests to be . acquired by RCTC will depend on Funding Source requirements. 4-2.3. Description Writers It is preferred that Legal Descriptions be written' by the same! company that prepared the survey for the property or property, ;interest being acquired. If easement rights are involved, RCTC Legal Counsel must re arethe descri+ tion 9 9 P P P �; . of the ;particular easement rights to be acquired. -3- 37 CHAPTER V APPRAISALS TABLE OF CONTENTS Section 5-1 Basic Operating Policies 5-1.1 Policy 5-1.2 Necessity for Appraisal 5-1.3 Appraisal Not Required 5-1.4 Review Appraisal 5-1.5 Notice to Property Owner of Decision to Appraise 5-1.6 Record Keeping 5.-1-.7.. Fee Appraisers and Review Appraisers Section 5-2 Appraisal Reports 5-2.1 5-2.2 5-2.3 Non -Complex Valuations Appraisal Formats Approaches to Value' Section 5-3 Uniform Regulations 5-3.1 The Uniform Act 5-3.2 Purpose 5-3.3 General Criteria for Appraisals . 5-3.4 Appraisal Requirements of the Uniform Act Section 5-4 Instructions to Appraisers 5-4.1 Contents 5-4.2 Special Appraisal Considerations Section 5-5 Contract Appraisers 5-5.1 Approved Contract Appraisers 5-5.2 Selection of Contract Appraisers 5=5.3 Non -Competitive Proposals for Contract Appraisers 5-5.4 Review Appraisers -1- 38 CHAPTER V APPRAISALS Section '5-1. 5-1.1 Policy It -shall be the policy of RCTC to secure at least one appraisal of each fee simple acquisition or from which: certain realty rights will be acquired. An appraisal will be required in all cases, unless otherwise approved by the RCTC Legal Counsel. Appraisals will be prepared . prior to initiation of negotiations ' on approved appraisal format and comply with the provisions of Federal and State Uniform Relocation Assistance :and Real Property Acquisition Policies Act, the Uniform Appraisal Standards of Professional Appraisal Practice (USPAP) and the. Uniform Appraisal Standards for Federal Land Acquisitions, and reviewed by a qualified review appraiser, as required. Basic Operating Policies 5-1.2 Necessity for Appraisal An Appraisal is necessary to ensure compliance with . the.. Constitutional requirement to pay "Just compensation" when private property is acquired or damaged for public.: use. The measure of "just . compensation" ..is "fair market value" which is contained in an Appraisal Report. An Appraisal is generally . required for acquisition, property management, relocation 'assistance and record keeping purposes, The Report 'shall contain a summary of basic information and conclusions together with pertinent supporting data. 5-1.3 Appraisal Not Required; Waiver of Appraisal 'Requirement by Legal, Counsel An appraisal is not required if the owner is donating the property and. releases RCTC from this obligation, in writing (after being 'informed in writing of RCTC's. policy with regard to appraisal and their right to receive just compensation' and the donation was initiated, by the owner).; In certain 'cases, wherethe fair market value of ;the property to be acquired is estimated at $10,000 or 'less, and it appears that the parcel valuation is ; non complex, Legal Counsel ;may be contacted in order to determine if an appraisal may be waived: if Legal Counsel agrees that an appraisal is not required a waiver valuation prepared by RCTC and the "Determination of Just Compensation" will still be necessary. A waiver valuation is not an appraisal and is used merely for documentation. The, "Determination of Just.. Compensation" may be documented with a diary entry, stating the basis of the value conclusion, i.e., land value (with .calculations), improvement value and severance/cost to cure -2- 39 damages. In addition, a photograph(s) of the property must be included. For FHWA projects, the form required is either the Memorandurn Appraisal format or a Simple Narrative appraisal. 5-1.4 Review Appraisal All appraisals, whether ;prepared by RCTC staff or by an independent fee appraiser., must be reviewed by an independentreview appraiser. Before an appraisal is sent to a review appraiser, `'RCTC staff shall internally review the appraisal to ensure that it accurately states the following: a. Property address b. Property Owner(s) name c. Property Tax 1. D. Number d. Purpose of the appraisal e. Propertyinterest to be acquired f. Legal Description of the property The ° review appraiser . -must= review the =appraisal(s) for- compliance ;,with the appraisal contract, State Law and Federal Law requirements. The review appraiser may: 1. Recommend the valuation of an appraisal as just compensation; or 2. Determine that the appraisal accepted meets all requirements but is not selected as recommended or approved, or is not accepted; 3. May develop and report an amount believed to be just compensation. When the review appraiser finds the report lacking in content, support, reasoning, or conclusion, the review appraiser may elect to supplement the areas considered lacking, -including modifying the appraised value. A written report clearly delineating the areas in question and full support and documentation for the reviewer's conclusions must be provided. 5-1.5 Notice to Property Owner of Decision to Appraise -3- 40 When RCTC decides to appraise a property for acquisition, the appraiser must give written notice to the property owner. The written ;.notice shall include the following: A specific area is being considered for a particular public use; the project. The owner's property is located within the area. All or a portion of the owner's property (which should be generally , described) may be acquired for public use An offer for the owner or owner's representative appraiser on an inspection of the property. The appraiser will give reasonable notice of the date and the inspection. Enclosed with the written notice will be the following: A written explanation of RCTC's real property acquisition. procedures; and Title VI Brochure. 5-1.6 Record Keeping The original appraisal shall be kept in each particular parcel file and a .copy kept in a separate folder arranged in numerical order (according to parcel number) 5-1.7 Fee Appraisers and Review Appraisers An approved list of qualified "on call" fee appraisers and review: appraisers will be established in accordance with RCTC's Procurement Policies and Procedures.: -4- 41 CHAPTER V APPRAISALS Section 5-2 Appraisal Reports 5-2.1 Non -Complex Valuations a. Appraisals of non-complex valuations of $25,000 or less must include at least the following: 1. Parcel Summary Page 2. Senior Field 'Review Certificate 3. Certificate of Appraiser 4. Photograph(s) of the property 5 Index Map Appraisal map Comparable Data Pages with photographs. 8. Comparable Data map 9. An identification of significant personal property Waiver Valuations with.a determination of Just Compensation .less than $25,000 must include the following: 1. Determination of Just compensation Title Page 2. Parcel Summary. Page 3. Senior Review Certificate 4. Determination of Just compensation 5 Certificate of Determination of Just Compensation 6. Photograph(s) of property 7. Index Map 8. Appraisal Map -5- 42 9. An identification of `significant personal property Waiver valuations may be prepared by knowledgeableRCTC staff and do not have to be completed by an appraiser. 5-22 -Appraisal Formats a:. Standard Appraisal Format or Detailed Appraisal, This format is required,when: There is a substantial acquisitionand the appraisal problemis judged, to be complex. The complexity might be due to the nature or value of the acquisition# of .land, improvements, property rights, and/or consequential damages resulting from the acquisition. The highest and best use of a property is different from existing use. There is a change in highest and best use .after acquisition, except when the remainder is an uneconomic' remnant. Damages, other than cost to cure, are more than nominal: Decreases or increases in market value due to the proposed improvements are involved. Market data for a sales comparison approach is inadequate' and consideration must be given to the cost and/or income: approach.. - Value Finding appraisal or Short Form Appraisal forrnats are unsuitable for any reason. The possibility of adversary Eminent Dornainproceedings is high.. - "Complex Specialty" report is needed, Specialty Reports are used to assist the principal appraiser in estimating ,. contributory value of specialty,items, such as machinery and equipment, fixtures, timber, contractor and builder estimate. Short Form Appraisal Forrnat (also known as, Simple, Abbreviated). Use this format when: The appraisal problem is uncomplicated. -6- 43 Complex Specialty appraisals are not required. Highest and best use is the present use, and for partial acquisition, the highest and best .use of the remaining property is the same before and after the acquisition. Comparable sales are readily available` and only the sales comparison approach is used. 5. Damages are considered to be nominal and can either be measured by the cost -to -cure method or by reasoning which fully explains such damages. Value Finding Format (also known as Narrative, Memorandum) Use this format when: 1. The appraisal will be low but requires an appraisal. The appraisal involves only vacant land or land with minor improvements. Before and after valuations are not required. d.. Uniform Residential Appraisal Report (URAR). Use this format when: 1. Acquiring single family residentially improved properties, which are "total takes", or the remainder is an uneconomic remnant and the residential improvements clearly represent . highest and best use. 5-2.3 USPAP Under any and all circumstances, if there is any conflict between the requirements of the Uniform Act, or any other applicable law regarding the preparation of appraisals, and the Uniform Standards for Professional Appraisal Practice (USPAP), the USPAP shall prevail. - 7.- 44 CHAPTER V APPRAISALS Section 5-3 5-3.1 The Uniform Act Regulations implementing appraisal standards of the 'Uniform Act are found in 49 . CFR Part ,24. The Uniform :Act applies to any Federal or federally -assisted program or project if Federal funding is to be used 'in any phase of the prograrr or project.. Federal funding for the right of way acquisition is not the key in determining whether or not Federal requirements apply to appraisals. If Federal Funds =are going to be used in any part of the project, but not in acquiring right of way, the Uniform Act still applies to the appraisals and acquisitions.. 5-3.2 Purpose Uniform Regulations The purpose of the Uniform Act is to ensure that all property owners are treated :fairly and uniformly when it is necessary for their property . be acquired for any Federal'or federally -assisted program or project. 5-3.3 General Criteria for All Appraisals Appraisals may not include any payment of relocation assistance benefits or consider that such relocation payments will be made. Appraisals must be independently prepared and each appraisal must be signed by the individual(s) making the appraisal and include .appropriate certification prior to submittal for review. Documentation by reference is acceptable when the referencedmaterial is in RCTC's files.' Qualifications of all appraisers and .all technicians. who contribute to the report must be in RCTC's files or in the. report. Fee appraisers must be State Licensed: Appraisals must be consistent with the Uniform Standards for Professional Appraisal' Practice (USPAP), and in some cases, the Uniform Appraisal Standards for Federal land Acquisitions. Appraisals must comply with State approved requirements. 5-3.4 Appraisal Requirernents of the Uniform Act -8- 45 a. The amount determined to be just compensation must be established by RCTC before the initiation of negotiations (the first time a formal written offer is presented to the owner). b. Any decrease or increase in the market value of the property,: which is caused by the public improvement or its likelihood prior to the date of valuation, must be disregarded by the appraiser, except physical deterioration within the reasonable control of the owner. When property values go up or down because of the proposed public improvement, .the appraiser must disregard such changed value when estimating the before value but not in estimating the after value as permitted by State Law. The appraiser should consider the possibility of uneconomic remnants and the RCTC must offer to buy any remainder that is of little or no value or utility to its owner. c. The appraiser must separately state damages to the property remaining and value of the property taken: d. All buildings, structures and improvements, including those owned by tenants, as part of the real property if they will be requiredto be removed or will be adversely .affected must be valued by the appraiser. 9. _ _ Tenant -owned buildings, structures and improvements must'be appraised as part of the real property based on their contributory value as if they could remain in . place, or their value for . removal (salvage value), whichever is greater. Lease terms requiring tenants to remove building, structures or improvements must be disregarded and appraise as if they could_ stay through. their. -usual life as extended by normal rnaintenance. If RCTC acquires any interest in real property, it must acquire equal interest in any buildings, structures and improvements 'located upon the real property, which RCTC will require to be moved or will adversely affect. This also applies to tenant owned buildings, structures and improvements located on the real property, even if the tenant is required by lease to remove them at the end of the lease. Such 'buildings, structures and improvements will be valued at contributory value as part of real property or value for removal (salvage value), whichever is greater. An adequate description ;of the items identified as personal property. h. When there is agreement as to ownership between fee owner and tenant, RCTC must make a separate offer to tenant for tenant owned buildings, structures and improvements, thus, there must be a separate appraisal. -9- 46 CHAPTER V APPRAISALS Section 5-4 5-4.1 Contents When the RCTC staff orders an appraisal, clear and specific written instructions in the form of ascope of work will be provided which will include . the following information: a. Address of the Property to be appraised. b. Tax I.D. number c. Owner of the Property, mailing address and phone number (if available) d. -Name of Tenant (if any), mailing address and phone number (if available) Purpose of the Appraisal (estimate just compensation; disposal/sale' of excess; etc.) Interest to be Appraised (total/partial acquisition; easement; aerial rights; rental estimate; access :rights; loss of business goodwill; outdoor signs), Legal description of Property (in cases of partial acquisition, provide legal description of remainder) Survey/plat-maps fee to be paid to appraiser (if more than one (1) appraisal is involved, . itemize fees) 'Specific date when appraisal(s) is due -to' bee Completed Contact person at the RCTC 5-4.2 Special Appraisal Considerations The following are special considerations in reviewing appraisals (internally) American with Disabilities Act of 1990 ("ADA" ) The' ADA applies to any public accommodation, commercial facility or private entity that offers examinations or courses related .to applications, licensing,, certification or credentialing for secondary or post -secondary education, professional or trade purposes. It requires that ,all new improvements after January 26, 1993 must be designed and ` constructed - to be readily accessible and usable by individuals with disabilities. Property to be appraised shall be inspected on 'the date of valuation for its complianceor non-compliance with ADA :regulations: All comparable -10- 47 sales should be analyzed as to their compliance or non-compliance to ADA regulations. Outdoor Advertising Signs Outdoor advertising signs will be valued as improvements unless they are owned by outdoor advertising companies. If relocation of such signs is feasible, that fact may be shown for informationpurposes only. c. Mobile Homes As a general rule, mobile homes are considered realty if installed on the owner's land. They are considered personalty if tenant -owned or they do not meet "decent, safe and sanitary standards; no adequate number of suitable replacements sites: are available; or,they are not roadworthy and thus incapable of being moved. Mobiles Homes that are considered personalty should not be valued. They will be covered under Relocation. d. Hazardous Waste .or Materials e. Properties that involve hazardous. waste or materials (as defined by State '.and Federal Laws)will be appraised -recognizing thre effects of 'hazardous waste or materials. The appraiser must consider the, estimated cost of cleanup requirements; market data of properties with comparable cleanup problems; and marketability of parcels with known hazardous waste problems. Access Rights The value of access rights is measured by the loss of value of the remaining property; before and after the restriction. Agricultural Improvements Agricultural buildings, farm residences and specialized fences will be valued as .improvements at depreciated value in place. Severance Damages Severance damage is the loss in value of remaining . property after acquisition and construction. Severance damages are valued by appraisal of the remainder as a portion of the total property in the before condition and as a remainder in the after condition (disregarding the benefits of the construction project). -11- 48 h. Cost to Cure . n. Some severance damages may be mitigated or entirely eliminated by estimating the cost to cure the damage. Benefits Benefits are valued by appraising the remainder 'before and `after`; the taking and construction of the project. Benefits are to be offset against any severance damages. Public: Utility :Parcels Property ,owned in fee by public utilities (including governmental utility agencies). utility agencies, irrigation districts and flood control districts may. be subject to special treatment, including the purchase of replacement land for exchange. Excess Land Appraisal Excess Land will be valued using a Market Value Appraisal or Market Value Determination ($10,000 or less) and Excess Land with a highest and best use as plottage (joinder or assemblage) to an adjoining property will, be appraised :at_ the amount it adds .:to the value 'of -the adjoining property.The before and after valuation method will be. used. Airspace Valuations Methods is appraising' airspace leases will :be the same as those applied 'any._ rl right 'of way acquisition arcel, except that consideration in appraising.. 9 Y q p p should be given to all of the factors that may, limit or enhance its utility because of the existence of the project improvement located on . or ,near the parcel. Full consideration will be givento any enhancement of real estate values in the area because of the location of the . project improvement. Rent Determination A fair market rent determination is an estimate of the amount of rent, which a parcel would command in the open market, if offered under the terms and conditions 'typical of the market for similar properties. Compensation for Loss of Goodwill Code of Civil Procedure, Title 7, eminent Domain Law, Chapter` 9, Article 6, Sections 1263 510, 520 and 530 providelhe :basis for compensating the owner of a business for the loss of goodwill: -12- 49 The business owner shall be compensated for the loss- of goodwill if the owner proves that the loss is caused by the RCTC's taking of the property and that the loss cannot reasonably be prevented by a relocation of the business or by taking steps and adopting measures that a reasonably prudent person would take and adopt to preserve .the goodwill: The business owner has the burden of proof for loss of goodwill. The business owner must be notified, in writing, of the owner's right to claim a loss of business goodwill. The notice must include a questionnaire asking for information about the business. A reasonable time for the owner to respond must be set forth in the letter. If a. Goodwill valuation is prepared it shall be prepared under the direction of the Commission's Legal Counsel Reports will be submitted to the Commission's Legal Counsel.. CHAPTER V APPRAISALS 5-5.1 Approved 'Contract Appraisers 5.5-2 Contract, Appraisers RCTC shall establish a. current Roster of Approved Contract Appraisers through the RCTC `Procurement Process. This Roster will: be updated and revised .on a regular ,basis depending on RCTC work requirements. Appraisals shall be subject to review by RCTC Legal Counsel for legal sufficiency. Appraisers may be required to report directly to Legal Counsel. Appraisal reports ,and . ancillary consultant reports shall be deemed prepared under the direction of: :Legal Counsel and shall be subject to the privileges of confidentiality: Selection of Contract Appraisers very effort shall be made to Select the most qualified appraisers .available= RCTG: Appraisers will be classified into: General, Fee Appraisers. Appraisers qualified to perform all types of appraisals will be ,included in this classification, such as residential, commercial, industrial and agricultural property appraisers.. Specialty Appraisers. Appraisers who are well qualified (based _ on. education, training and experience) to evaluate machinery, equipment, airspace leases, hazardous waste or other specialty items will be included in this classification. Specialists performingservices of this :nature may be members' of appraisal :or engineering firms whose principal, occupationis the appraisal of specialty items, contractors who are engaged. in the -installation of such iterns, or equipment, or .suppliers or dealers of such specialty 'items who are fully qualified to offer an opinion of value. They. must be capable of submitting written :information, which :' is :essential; to explain, substantiate and thereby: document their opinion ! in accordance' with accepted appraisal principles and techniques. Specialty Appraisers must be :qualified to provide expert testimony in Eminer4 Domain. and -other real estate related court proceedings.. Goodwill Appraisers Furniture, Fixtures and Equipment Appraisers -14- 51 5-5.3 Non -Competitive Proposals for Contract Appraisers In instances when Specialty Items will be appraised, the ROW Department may select the most qualified appraiser(s) available for the particular assignment. Consideration should be given to anticipated appraisal problems, talents, skills and special qualifications of the individual appraiser. The ROW Program Manager shall exert best efforts in negotiating the lowest cost possible for the appraisal assignment. 5-5.4 Review Appraisers RCTC will establish a Roster of Approved Review Appraisers through the RCTC Procurement Process. Review Appraisal Contracts will be awarded in the same manner as Contract Appraisers. 5-5.5 Appraisers for Litigation' Purposes Selection of and award of contracts to appraisers for litigation purposes shall be handled through RCTC Legal Counsel. -15- 52 CHAPTER VI ACQUISITION, NEGOTIATION and EMINENT DOMAIN TABLE OF CONTENTS Section 6-1 General :Provisions..: 6-1.1 Authority 6-1.2 Federal Code Requirement 6-1.3 Terminology 6-1.4 Acquisition tof Real Property interest 6-1.5 : Occupancy of {Right of Way 6-1.6 ; PublicMeetings 6-1.7 Project Field _Inspection 6-1.8 Pre -Negotiation Public Relations Contacts 6-19 Initiation of Negotiations 6-1.10 Who Conducts negotiations 6-1.1`1 - Relocation Assistance Information 6-1.12 - Pre -'Negotiation Preparation 6 1 13 ,Delivery -of Payments 6 1 14 Recording of Documents Section 6-2 Acquisition 'Policies - 6=2.1 Purpose 6-2.2 General Policy 6-2.3 Prior Notice. to 'Move 6-2.4 Continuation of Possession on Rental Basis. 6-2.5 Payment Prior to Possession 6-2.6 Coercion 6-2.7 Institution of Condemnation Proceedings 6-2.8 Uneconomic Remnant 6-2.9 Acquiring Property Owned by RCTC Employee or Member of the Board of Commissioners 6-2.10 Functional Replacement Section 6-3 Acquisition Acquisition Procedures 6-3.1 Information Letter 6-3.2 Prompt Offer of Just Compensation 6=3.3 Delivery of Offer Letter and Date of Initiation of Negotiation -1- 53 6-3.4 Supporting Documents 6-3.5 Negotiator's Report and Contact Log (Parcel Diary) 6-3.6 Advance Right of Way Acquisition, Hardship and Protective Buying 6-3.7 Donation and Dedication 6-3.8. Assessments 6-3.9 Property Owner's Right to Review Appraisal 6-3.10 Qualified Homeowner's Right to Review the Appraisal 6-3.11 Basis for Just Compensation 6-3.1.2 Negotiating with an Attorney or Designated Representative 6-3.13 Improvements Acquired or Damaged 6-3.14 Outdoor Advertising Structures 6-3.15 Reimbursement of Property Owner's Expenses 6-3.16 Uneconomic Remnants 6-3.17_ Extension of Possession and Fair Rental Value 6-3.18 Clearance of Unrecorded Interests 6-3.19 Indemnification Clause 6-3.20 Covenants, Conditions and Restrictions -6-3.21 Easements - General 6-3.22 Gross or Appurtenant Easements 6-3.23 Blanket Easements 6-3.24 Obsolete Easements 6-3.25 Utility Easements 6-3.26 Court actions, Consent to Dismissal 6-3.27 Clearance of Lessee Interest 6-3.28,_Presumption :of Interest and Right to _Cancel 6-3.29 Leasehold Bonus Value 6-3.30 Condemnation Clause 6-3.31 Access Rights 6-3.32 Tax identification Numbers 6-3.33 Improvements in General 6-3.34_ Water;Wells . _ t 6-3.35 Construction Obligations 6-3.36 Exchanges and Abandonments 6-3.37 Loss of Business Goodwill 6-3.38 Hazardous Waste 6-3.39 Mobile Homes 6-3.40 Federal and State Lands 6-3.41 Mining Claims 6-3.42 Indian Lands 6-3.43 Railroads Section 6-4 Administrative and Legal Settlements 6-4.1 Purpose. 6-4.2 Settlement Authority 6-4.3 Legal Settlements 6-4.4 Record Keeping -2- 54 Section 6-5 Eminent Domain 6-5.1General 6-5.2 Grantor's Request for Review Hearing 6-5.3 Notice of Intent to Adopt Resolution of Necessity &5.4 Grantor's Request for Appearance 6-5.5 Record of .Condemnation Case Status 6-5.6 Condemnation Suit Section 6-6 Reporting of: Acquisitions 6-6.1 Policy 6-6.2 .1099=S Reporting Procedure 6-6.3 Taxpayer Identification Numbers 6-6.4 Methods of Reporting to the IRS Section 6-7 Filing of completed Transactions 6-7.1 Filing of Recorded Documents and Policy of Title Insurance 6-7.2 Certification of Completion of Acquisition 55 Section 6-1 CHAPTER VI ACQUISITION, NEGOTIATION and EMINENT 'DOMAIN General.' Provisions 6-1.1 Authority RCTC is empowered by law. Public Utilities Code Section 130220 authorizes the Commission to make contracts...... in connection with eminent domain proceedings or otherwise for the full exercise of powers granted to the Commission. This power is exercised in accordance with Article I, Section 19 of the California Constitution, which states: "Sec. 19. Private Property may be taken ordamaged for public use only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner.. The Legislature may provide for possession by the condemnor following commencement of eminent domain proceedings upon deposit of money determined by the court to be the probable amount of just compensation."° 6=1- ~.Federal Code -Requirement In addition to the constitutional requirement, acquisition of private property for public use is also to be in accordance with section United States Code entitled "Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, :as amended (42 U.S.C. 4601 _et. seq.) 49 CFR Part,.24, as further amended - by the Surface Transportation and Uniform Relocation Assistance Act of 1987, Title IV of Pub. L. 100-17. 6-1.3 Terminology For purposes of this Right :of Way Manual, the following terms are synonymous: "Acquisition" and "Negotiation" "Negotiator", "Acquisition Consultant," "Acquisition Agent,". and Right of Way Consultant, Right of Way Personnel and "Contract Negotiator" "Offer" and "Offer of Just Compensation" "Eminent Domain" and "Condemnation" 6-1.4 Acquisition of Real Property Interest -4- 56 All rights, title, interest of fee hold and subordinate interests in real property within the .right of way and/or easement boundaries are to be acquired as necessary for the property and economical constructions, operation, protection, support, preservation and maintenance of the project. . The RCTC Executive .Director or designee, with concurrence from the RCTC Legal Counsel may approve exceptions to the acquisition of other property rights on an individual case or project basis. 6-1.5 Occupancy: of Right of Way' The area within right of way boundaries is devoted to public use.. Any encroachments, ,use of -airspace, joint development or multiple use of right of way and installation of public and private facilities must be in accordance with established. regulations and policies governing such ''uses. 6-1.6 Public Meetings If the. Executive 'Director, Project Delivery Director or ProjectManagementTeam is scheduled to present information concerning RCTC's projects and programs at a public meeting or hearing, a Right of Way Personnel will attend 'such meeting or .hearing in order to answer questions concerning RCTC's right of way acquisition process and to become familiar with possible problemslhatmay arise during the:right of way, acquisition process. 6-1.7 Project Field Inspection Right of Way Personnel are encouraged to join Project Field_ Inspections. If field inspections reveal that revision in the design would contribute::�to the social, economic or environmental -effects of a project, - the ROW Program Manager should immediately advise the Project Manager. 6-1.8 Pre -Negotiation ' Public Relations Contacts Acquisition Agents may be assigned, commensurate with a:nti'cipated: problems, to make calls upon property owners and discuss right of way procedures and provide general information concerning the proposed ROTC project. A right of way personnel, who may be later involved with: the appraisal, acquisition, or relocation for the project, may make such calls. Care: should always be taken to avoid discussing assumptions, possible offers, possible damage, or value conclusions. This initial call 'should be brief and is only intended to provide project information and promote public relations. 6-1.9 Initiation of :Negotiations The term "Initiation of Negotiations" relates to the 'date on which the RCTC presents the owner of the property, or their designated representative, a written -5- 57 offer for purchase the property or rights to be acquired. When non-resident owners are involved who cannot be contacted in person, initiation of negotiations for the property shall be the date such owner or his designated representative received the first communication by mail or telephone from the RCTC in which a monetary offer to purchase is made. 6-1.10 Who Conducts Negotiations a. RCTC Right of Way Staff Negotiations for the acquisition of real property and/or property rights for RCTC projects will be conducted by qualified RCTC Right of Way. personnel. Such personnel must meet the minimum qualification for the, position of ROW Program Manager. Other Right of Way personnel not meeting these minimum qualification may perform negotiations under the direct guidance of the ROW Program. Manager. Acquisition Consultants Negotiations may also be conducted by Acquisition Consultants under written agreement with RCTC and under the direction of the ROW Program Manager. Acquisition Consultants should report directly to 'Legal Counsel, unless otherwise specified. The amount of the fee shall be established on a parcel basis. Qualifications, requirements and employment . of Acquisition Consultants . will. be. ;discussed , in-, succeeding Sections. = = _ 6-1.11 Relocation AssistanceInformation Residential owner occupants being displaced are to be provided an explanation of: the _selocation.benefits _ for -which they are eligible.Offers_ for right of way acquisition are not to be made to displaced owner occupants until the owner can be provided with the required relocation information. 6-1.12 Pre -Negotiation Preparation ;The accumulation of materials and information necessary to conduct and ,complete negotiations for the orderly and efficient acquisition property for the proposed :project is the logical step in negotiation. At a minimum, the negotiator should be supplied with the following: -a. Title report of all recorded interests in the property b. Survey/plats and legal description c. Documents necessary to acquire all interests d. Right of Way Plans e. Appraisal Reports f. Escrow Instructions. g. Basis for JustCompensation -6- 58 h. Offer Letter In order to make an informed explanation of the proposed acquisition to an owner, the negotiator 'should make a comprehensive study of the plans, title report, appraisal report and Basis for Just Compensation. 6-1:13 Delivery of Payments Payments to Escrow Companies may be delivered by person or by certifiedimail with "return receipt requested. Submission of payment to Escrow Companies shall be accompanied by 'a letter, stating the Escrow Number, :Parcel, Number, Name of Property Owner, Check Number and Amount of the. :check. Owners are to be 'notified in writing of the date the payment' is delivered' to the Escrow Company: Delivery of payment for the acquisition of minor property rights, such as, right of entry, permits and temporary licenses, may be delivered by a 'Right of ;Way personnel,. The Right of Way personnel is to obtain the signature of the recipient acknowledging receipt of the payment. Payments mailed to owners shall be accompanied by a letter and sent by certified mail with; return receipt requested. 6-1:14 'Recording of Documents III documents conveyingland, -easements, realty Tights, trust deed, -;mortgage releases and restrictive easements to the ROTC; regardless of consideration recited therein, .:shall be recorded in the appropriate Recorder of Deeds office. -7- 59 Section 6-2 CHAPTER VI ACQUISITION, NEGOTIATIONS and EMINENT DOMAIN Acquisition Policies- . 6-2.1 Purpose • • To establish RCTC policies and procedures related to .the acquisition function in negotiations for land, property and rights needed for the proper and economical construction and maintenance of RCTC project. The intent and .purpose of the policies and procedures are to assure uniform acquisition practices, which will provide consistent and equitable treatment of owners and tenants of read property acquired by RCTC for public purpose. 6.2-2 General Policy a. It is the policy of RCTC that all negotiations should beexpeditious and result in .the property yowner receiving just compensation -.The settlement Sho ld-`be °just and fair to `the owner and the public, and °every -courtesy, consideration and patience should be extended to the property owner. It is RCTC's goal to create and establish trust :in the RCTC, the mernbers of, its Board of Commissioners and its employees. All .offers shall .represent :the approved ;amount_ of Just :Compensation. as determined through RCTC's valuation procedures. The Acquisition Agent shall make a reasonable effort to demonstrate and promote confidence in the Approved Just Compensation offer. If the Acquisition Agent discovers facts, which were not recognized in the Just Compensation offer, the information shall be made available to the Right of Way Program Manager who will evaluate and give full consideration to those items prior to continuation of negotiations. Acquisition Agents must demonstrate that they represent the interest of the property owner as well as those of the :public. Care should be exercised at all times to protect the interests of owners who may be unfamiliar or inexperienced in real estate transactions. Acquisition Agents are required to maintain a written Record of Negotiations, documenting that all elements of the transaction were given _g_ 60 adequate consideration and that there was a mutual understanding, between the Acquisition Agent and the property owner. RCTC shall make every reasonable effort to expeditiously acquire real property by negotiation. Real property shall be appraised ;before initiation of negotiations, and the owner, or his designated representative, shall be given an opportunity to accompany the appraiser during the inspection of _ the property. It is the responsibility of the appraiser to invite theowner. to accompany them on the inspection. They will attempt to ':contact the owner by both phone and U. S. Mail. A copy of the letter of invitation will 'be sent to the, ROW Program Manager; in addition, the appraiser will document this in the appraisal. They will state :that they invited; the property owner to accompany them and 1)the date :they 'inspected the ;property with the owner, or 2) the circumstances why the property owner did 'not accompany the appraiser on .the inspection: Unless RCTC states in writing that the public use for which the property is being acquired is scheduled to begin within two years of acquisition, it must offer a one-year leaseback to any property that is either acquired pursuant to eminent domain, acquired . following the adoption of ;' a' resolution of necessity, or acquired before the adoption of a resolution of necessity but after a written notice that the public ,entity .may take the property by eminent domain. The terms of any such one-year leaseback. agreement and the statutory notice requirements for .terminating: the • :leaseback : -complyshall. :with the provisions of Code .;of Civil Procedure sect .- _ _...-:... ion 1263.615. Prior to the adoption by the RCTC Board of Commissioners of a Resolution of Necessity (pursuant to Code of Civil Procedure, Section 1245.230), and initiating negotiations for the acquisition of ,real property, the 'RCTC Executive Director or designee -shall establish an'amount which - it believes to .be just compensation. A written offer will be made to the - owner or; owners .of record to acquire the property for the full amount so established, unless the owner cannot be located with. reasonable diligence. The offer may be conditioned upon the RCTC's ratification of .the : offer,: by execution of a contract of acquisition or adoption of.- a Resolution of 'Necessity or both. In no event shah such amount be; less than the RCTC's approved appraisal of the fair market: value of the . property. Any decrease or increase in the fair market:. value : of real property to be acquired prior to the date of valuation caused by the RCTC project for which :the property is acquired or by .the likelihood that the property 'would be acquired for such project,.. other than that . due to physical deterioration within the reasonable control of the owner ,:or, occupant; shall be disregarded in determiningthe compensation for the . . property. RCTC shall provide the owner ()flea! .property to be acquired witha written statement of, and summary 'of: the basis for; the arnount it established as Just Compensation. `Where the property involved is owner - occupied residential property and contains., no more .than four residential -9- 61 units, the homeowner shall, upon request, be allowed to review a copy of the appraisal upon which the offer is based. Where appropriate, the just compensation for the real property acquired and for damages .to remaining real property shall be separately stated. At the time of delivery of the written offer of just compensation, the property owner will be informed of their right to secure an appraisal, by a licensed appraiser, and RCTC will reimburse the cost of such appraisal report up to the $5,000. (AB 1210) 6-2.3 Prior Notice to Move The construction or development of RCTC's projects shall be so scheduled that, to the greatest extent practicable, no person lawfully occupying real property shall be required to move from a dwelling, assuming replacement dwelling will be available, or to move his business or farm operation, without at least ninety (90) days written notice from the RCTC of the date by which such move is required. 6-2.4 Continuation of Possession on Rental Basis If the RCTC permits an owner or tenant to occupy their real property acquired on a rental 'bases for a short term, or for a period subject to termination by the RCTC on short notice, . the amount of rent required shall not exceed the fair market rent of the property for short term occupancy. 6-2.5 Payment Prior to Possession No owner will be required to surrender possession of real property acquired by RCTC prior to payment of the agreed purchase price or payment, of the amount determined by the Court to be,.the probable._ Just, Compensation, into the court for property acquired through condemnation proceedings. 6-2.6 Coercion In no event shall the RCTC either advance the time ofcondemnation, or defer negotiations or condemnation and the deposit of funds in court for the use of the owner, or take any other action coercive in nature, in order to compel an agreement on the price to be paid for the property. 6-2.7 Institution of Condemnation Proceedings 1f any interest in real property is to be acquired by exercise of the power of eminent domain, the RCTC shall institute formal condemnation proceedings. RCTC shall not intentionally make it necessary for an owner to institute legal proceedings. to prove the fact of the taking of his real property. 6-2.8 Uneconomic Remnant -10- 62 If the acquisition of only a portion of a property would leave the remaining portion in such a shape or condition as to constitute an uneconomic remnant, the RCTC shall offer to acquire the entire property if the owner: so desires. 6-2.9 Acquiring Property Owned by RCTC Employee or 'Member of the Board- of Commissioners When the property or property interest to be acquired by _RCTC is owned fully or artiall or otherwise subject to an interest b an RCTC employee or a member partially 1 Y-... of the Board of commissioners, the ROW Department will consult Legal Counsel to ensure that conflict of interest laws are not violated. 6-2.10 Functional Replacement of Real Property in Public Ownership, When publicly -owned real °property, including land and/or facilities, is to be acquired by RCTC, in lieu' of paying the fair market value of the real property, RCTC may, with prior approval of FTA or FHWA, provide compensation by - functional) replacing the publicly owned realpropertywith another facility which: Y p 9 P Y Y .. will provide equivalent utility. (See 23 CFR Part 710) -11- 63 Section 6-3 CHAPTER VI ACQUISITION, NEGOTIATIONS and EMINENT DOMAIN Acquisition Procedures 6-3.1 Information Letter Priorto any discussion as to the terms of property acquisition and the compensation to be paid, the property owner should be given full information, in writing and signed by the ROW Program Manager, as to the following: a. The role of RCTC and its acquisition functions. b. The necessity for the proposed project. c. That if the owner and/or tenant become displaced as a <result of the acquisition, they may be eligible to :receive certain relocation benefits pursuant to the Uniform Relocation Assistance and Real Property Acquisition Policies of 1970 (as amended). Enclose a Brochure that describes the RCTC's acquisition and relocation e. Name of the Relocation Consultant, contact person and telephone number. 6-3.2 Prompt Offer of Just Compensation All offer of Just Cornpensation shall be promptly presented to property owners or their designated representatives. The Right of Way Department should determine the appropriate timing for delivery of offers within the scope of good negotiating practices. 6-3.3 Delivery of Offer Letter and Date of Initiation of Negotiations Offer letters must be hand delivered or sent by U.S. mail. When .an owner has authorized or a designated representative and notified RCTC in writing, or there is a court appointed representative, the Offer Letter need only be delivered to the representative. Delivery of the Offer Letter or the Date the Offer Letter was Mailed establishes the Date of initiation of Negotiations. Should several individuals own fee interest on the property, delivery of the Offer Letter to one of the owners is sufficient to establish the Date of Initiation of Negotiations; however, all owners are to be furnished all relevant offer items. 12- 64 Offer letter .are to be delivered to the fee owner .or a designated representative. Tenant Owners When the owner of the land has not conveyed < or disclaimed, his interest in ' the tenant -owned irnprovements, .the offer .to : the tenant -owner will be conditioned upon the tenant obtaining execution of the necessary disclaimer release of structures or leasehold from the owner of the land. ;!Disclaimer by Owner in Tenant Owned Improvement When a separate amount of Just Compensation is . approved `for an improvement owned by a party other than the owner of the 'land, payment for 'such improvements shall not be made unless the owner of the land disclaims all interest in the tenant -improvement. The 'owner of the gland may disclaim his interest in such improvement by executing a deed of conveyance of right, title and interest or a disclaimer. hen afdeed_ or a:,disclaimer is not executed by the owner of the land;, offer of just compensation for the improvement and the disclaimer -will be presented to the tenant -owner with the condition that the settlement will be made provided that the tenant -owner, is successful in obtaining execution of the necessary disclaimer. ombned Fee -Owner -and Tenant -Owner -Offer Letter for Condemnation Purposes Immediately prior to condemnation proceedings for a parcel where tenant - owned structures are involved, an offer letter will be presented to all fee owners of record or their designated representative. The. offer will be the total of the amount of just compensation for the fee and tenant owners;.. Revised Offers 'When the approved just compensation has been presented to the owner and it is revised through the appraisal process; it is necessary :to provide such owners; with an offer letter reflecting the revised amount of just compensation and, the reason for the revision. 6-3.4 Supporting. Documents -13- 65 Upon initiation of negotiations for the acquisition of right of way from a property owner, each owner or representative will be provided with the following: a. Offer Letter b. Basis for Just Compensation (Appraisal Summary) c. Brochure explaining RCTC's Acquisition and Relocation Policies d. Conveyance documents e. Escrow Agreement 6-3.5 Negotiator's Report and Contact Log (Parcel Diary) A Negotiator's Report and Contact Log shall be completed and signed by :the negotiator upon termination or completion of negotiations for each parcel. A log of all contact with the owner or representative shall be completed. The information for each contact should include the date and place of each contact, parties contacted, offers, counteroffers, issues . raised by the owner,'reasons settlement could not be reached, and any other pertinent data. When negotiations are ;.. unsuccessful, and the negotiator considers further attempts to negotiate to be futile, recommendations for action should be recorded. 6-3.6 Advance Right of Way Acquisition, Hardship and Protective Buying 23 CFR 710.503 provides- that in extraordinary; cases and emergency situations an agency may °regUest i`and: the= Federal Highway- AdMini8tration' .(highway projects) may approve federal participation in the acquisition of a particular parcel or a limited number of parcels within the limits of a proposed highway corridor prior to completion of processing of the final environmental statement or. adoption of the appropriate documents (rail/transit projects fall under the Federal Transit Administration)._ _r Proper- documentation shall be _submitted to: show. --that: the acquisition is in the public interest and is necessary to: a. alleviate particular hardship to a property owner, on his request, in contrast to others because of inability to sell his property (Hardship Acquisition), or - b. prevent imminent development and increased costs of a parcel which would tend to limit the choice of highway alternatives (Protective Acquisition). The requirements for advance acquisition criteria for hardship and protective buying are set forth in 23 CFR 771.117 (d) (12): Section 771.117 (d) (12) Categorical Exclusions. Acquisitions of land for hardship or protective purposes; hardship and protective buying will be permitted only for a particular parcel or limited number of parcels. These types of land acquisition qualify for CE only where the acquisition will not Limit the evaluation of 14 66 alternatives, including shifts in alignment for planned construction projects, which may be required in the NE'PA process. No, project development on such land may proceed until the NE'PA process has been completed. . Hardship acquisition is early acquisition of property by the agency at the property owner'srequest to alleviate particular hardship to the owner; in contrast to others, because of an inability to sell his property. This is justified when the property owner can document on the basis of health, safety or financial reasons that remainingin the property poses an undue hardship compared to others. Protective acquisition is done to prevent imminent . development of a parcel, which .is needed for a proposed transportation corridor or site. Documentation must clearly demonstrate, that development of the, land would preclude future transportation use and thatsuch development is imminent. Advance acquisition is not permitted for the sole purpose of reducing the cost of ;property for a proposed project. In practice, hardship and protective buying are approved only after the acquiring agency has given official notice to the public'" that it has selected a particular location for the;: project alignment, or a .public hearing has been 'held, or an opportunity for such hearing has been afforded, except when "core parcels" are to be acquired in advance of environmental clearance. Properties not considered "core parcels" may be acquired in exceptional cases when: property has been, offered by propertyowner for sale. seek: federal -agency -concurrence c. acquisition will not limit the evaluation of alternatives d no project development on the property will proceed until the'NEPA/CEQA process has-been completed. A major consideration in making: a decision. on;Advance. Acquisition: is the effect on federal; funding for the parcel and theproject as a whole. It :is important to keep in mind that if federal regulations (40. C'FR part 24) are not followed in the advance acquisition of a parcel, the FHWA or FTA, as the case rnay be, " may deny federal "funding for the whole project; .or, ifit is: determined that the advance . acquisition of a' parcel 'influenced the environmental assessment, of the project, the cost to acquire the parcel may not become eligible for use as the credit towards the agency's share of a federal --aid project. In the latter instance, the project's application for environmental clearance under NEPA may also :be denied: RCTC may make a policy decision to proceed with an advanced acquisition that does not fall within` the protective categories described above if such acquisition is in the best interest of ROTC. In order to preserve the potential for federal and state funding, applicable state and federal laws and regulations will be followed to the extent feasible: ROTC; Policy: -15- s7 a. Property is lawfully obtained b. Property is not f(f). 4(f) properties are those publicly owned park, recreation area, wildlife and waterfowl refuge or any significant historic site (publicly or privately owned) unless there is no feasible and prudent alternative to the use of land. c. Property is acquired pursuant to the provisions of the Uniform Act. d. Agency complied with the requirements of title VI of the Civil Rights Act of 1964. e. Acquisition did not influence the environmental assessment for the project. f. Property is incorporated into the project. Relocation of single family residence or business may be allowed in advance of environmental compliance as long as the future useof the site is conditionedon CEQA compliance. NEPA compliance is discussed above. Caveat: relocation cannot be done on a large scale basis prior to environmental compliance, each relocation case has to be considered and analyzed to ensure compliance with CEQA and NEPA. 6-3.7 . Donation and Dedication a. Donation Donation is the voluntary conveyance of property without compensation, for the . improvement, of ..a public project. _ _ Donations must be voluntary .and p P p. 1 ;owners- must be ;advised of their benefits under- the State and . Federal Uniform Act and of their right to compensation, relocation assistance benefits and their right to receive an appraisal report of the market value of their real property to be donated. The property owner should be advised of RCTC's policy of accepting donations and the offer to donate should not in any way_,result from an act of coercion. Donations may be made at any ._ during the development of a prospective project. Every donation must have a detailed financial analysis of the actual and potential costs to RCTC. Project Management Staff should be careful in accepting Donation of a contaminated property -where the clean-up cost exceeds the value of the property. Relocation benefits and loss of :business Goodwill should likewise be considered. In order for the RCTC to claim the value of the donated property as a credit against its matching share of projects costs (Federal and State' assisted projects), certain conditions must be met: 1. the value of the donated property must be determined through an appraisal for the purposes of calculating a credit to RCTC's matching funds of the project costs. 2. Environmental requirements must be met (NEPA process). -16- 68 3. Donors shall be advised that they may contract to reserve certain airspace development rights and revenue sharing. 4. ; Environmental Assessment (Phase I and II) must be; conducted on the property. Any document executed to effect donation prior to approval of the;' environmental clearance of the, project shall clearly state: All alternatives to an alignment will be studied and considered.: The acceptance of the donated property did not influence the: ;environmental assessment of a..project including the decision about the need to: construct the projector the: selection of a specific .location for the project.- In other :words, RCTC must not be influenced by the donation of the property in its decision on whichalternative to approve. Any property acquired by gift or donation for projects covered by the Federal Highway Act, shall be re -vested in the Grantor or successors, if such property is not needed for the alignment chosen after public hearings, if required, and seven years after completion of the environmental document. Donations will not be accepted until a hazardous waste assessment has een completed RCTC may accept. a property owner's offer to donate or a portion thereof in exchange for construction features or services rendered that will benefit the property owner. However, for the purposes of crediting the value of the donation to the::RCTC's share of project costs, such donation is limited to ;the fair market value ,of the property -donated less the :value of :the construction features or services received by :the -RCTC. RCTC may accepta parcel of land that a developer of real estate has dedicated or :proposes to dedicate for street purposes in developing a subdivision. Land obtained in this,manner may be incorporated into :a Federally -assisted project without jeopardizing participationin other project costs. b. Dedication Dedication is the setting aside of property for publicuse without compensation as a condition prior to or :in exchange for any government or RCTC action that will enhance the value 'of or development potential of property. The property owner must initiate the request for dedication and, dedications can be accepted throughout the project development process. Prior to acceptance by the RCTC, the property to be dedicated shall be subject to a hazardous waste assessment and a review of the ;condition of title. -17- 69 Dedication must be accepted by the RCTC . formally with an acceptance document. 6-3.8 Assessments CAVEAT — if assessments (general or special) or taxes will be levied by local jurisdiction against properties adjacent to an RCTC . project because the properties are the direct beneficiaries of the public improvement, this may be viewed as coercive since the community in general usually benefits from the project. Property owners adjacent to the project should not be asked to bear the burden of the cost of a community improvement. Suggesting that if the property • owner does not accept RCTC's fair market value offer, the property owner will be assessed the property's pro-rata share of the project cost is illegal under Federal law. The Uniform Act forbids an acquiring agency from taking' any, coercive action in order to compel an owner to agree on a price for their property. This act will also constitute a form of forced donation, which is coercive and thus unacceptable. 6-3.9 Property Owner's Right to Written Statement and Summary RCTC shall provide the owner of real property to be acquired with ;a written statement of, and summary of the basis for, the amount it established as just compensation. The written statemenf and summary shall contain -detail -sufficient to indicate. clearly the basis for the offer; including, but not limited to, all of the:: following information: a. The date of valuation, highest and best use, and applicable zoning of property. The principal transactions, reproduction or replacement cost analysis, or capitalization analysis, supporting the deterrnination of value. c. Where appropriate, the just compensation for, the real property acquired and for damages to remaining real property shall be separately stated and shall include . the calculations and narrative explanation supporting the compensation, :including any offsetting benefits. 6-3.1 0 Qualified Homeowner's Right to Review the Appraisal The owner of an. owner --occupied residential property that contains no more than four residential units ("qualified homeowner") shall, upon request, be provided a copy of the appraisal -upon which the offer is based. If the qualified: horneowner wants to review the appraisal, the following conditions apply: -18 70 a. The right to review is restricted to the approved appraisal and. any revisions on which the initial or any subsequent offers are based. It does not apply to independent or staff reports prepared: for use in condemnation. The right to review applies to those elements of the appraisal report relevant to the determination of the value estirnate including .narrative. material relating specifically to the subject property, comparable sales data, appraisal and sales maps. Should the owner request that the copy r be reviewed by an attorney or other representative; this request rnust be in writing. The :right to review -applies to any, type of . acquisition ' as long as the . property :is an owner -occupied residential property containing four units or ;less: _ 6-3.11 Basis for Just Compensation The Basis for Just compensation explains how the estimate of 'Just Compensation was determined and will be included with the initial offer letter and with any revised offerletter to be given to property owners 6-3.12 Negotiating: with an Attorney or Designated Representative Unless otherwise, authorized by the property owner.-, all ;acquisition Oisc,ussions shall be with the owner: When an attorney has been retained by the ,property' owner, acquisition discussions will generally be with the attorney, unless otherwise authorized in writingby the attorney. in such cases, RCTC must likewise be represented by its legal counsel during negotiations and meetings, If the property`=owner=employs someone as his representative, the extent of the authority of the representative should be in writing, signed by the owner. 6-3.13 Improvements Acquired or Damaged a. Interest in Improvements Acquired An equal interest shall be acquired in all buildings, structures or other improvements determined to be a part of the real property when such improvements are to be removed from the `land 'acquired for right ,of. way . purposes. b. Improvements Located Partially within the Right of Way Improvements located partially within the right :of. way, which are designated for removal as indicated by temporary easements, shall be totally removed, unless the owner: retains the improvement and cuts it at the right of way line.. _19- 71 The decision to allow an owner to retain and cut an improvement at the right of way line must be made during negotiations. In making the decision, the owner is to understand that the RCTC will have to re-evaluate its offer through the appraisal process. If a revised offer is unacceptable to the owner, the original offer and plan for total removal of the improvement will apply and if necessary condemned as originally designed. c. Fee Owned Improvements Owners will be compensated for any loss in fair, market value of improvements that are not required to be removed but are adversely affected as a result of the acquisition, as determined by appraisal. Tenant -Owned Improvements 1. Improvements Acquired or Damaged — Release of Structures and Leasehold Tenant who have the right or obligation to remove real estate property improvements, which contribute to the real estate value, as determined in the appraisal process, have a compensable interest in those improvements. Compensation may include one of the following: - c. _the :contributory fair, market value -.for the :improvement _being acquired or the value for 'rerroval purposes: whichever _i greater damages the improvement suffers as a result of the acquisition the value of any leasehold interest No Payment to Tenant Before Fee Interest acquired or Disclaimed No payment shall be made to a tenant for an improvement unless the land owner involved conveys or disclaims all interest in the improvement 3.. Condemnation of Tenant -Owned Improvements Tenant -Owners are afforded the same rights and protection as fee owners. Should a tenant -owner reject the offer made for the improvement, it will be necessary to condemn all interest in the property including the fee ownership. 6-3.14 Outdoor Advertising Structures and On -Premise Advertising Signs 20 - 72 a. Outdoor advertising structures are defined as all signs, billboards, drawings or paintings .which advertise activities conducted elsewhere or services 'and/or products provided other than at the subject property. They, should not be confused with on=premise ° signs, which advertise activities conducted on the premises or services and/or products provided on the subject property. Owners of outdoor advertising structures have the rightor obligation ;to _remove such structures at the termination .of the lease or agreement. Therefore:, suchstructures are generally acquired like other tenant -owned improvements. All outdoor advertising structures shall be valued and ;acquired as real estate, and never considered as personal property to be moved under theRelocation Assistance Program; and, if the agreement `between the outdoor advertising company and the owner or lessee of the real property :is valid and in effect, the owner of the structure shall ;be entitled to compensation for loss of business goodwill. Section 5403, Business and Professions Code and Section 721,: Streets` and Highways Code, -regulate outdoor advertising structures on highway right .of way. - Sections 5405, 5406 and 5408, : Business and Professions` Code, regulate advertising structures adjacent to any. State highway, included in the Interstate and Primary highway systems. No. new structures shall be placed on .State-owned or RCTC owned -properties whether properties are considered excess or 'being held for :future use., -,Existing ,structures may- remain on' the _theory that the prope does not, at present, constitute a portion of the right of way, but is being held by RCTC or by the State for future use. Rernoval or relocationof outdoor advertising company structures from right' of way for Interstate or Primary highways to a location .outside the area being acquired shalt conform to the requirements of the above Code sections. :Structures on William -son Act Agricultural Preserves Land .placed in an agricultural preserve' contract under the Williamson, Act (Government 'Code sections 51200=51295) is limited to .agricultural uses. Other uses ;are prohibited by the terms . of the contract. If .the property being acquired has an outdoor advertising structure located my the acquisition area the'compensability status of the structure will havebeen determined prior to the commencement of appraisal. Acquiring .Interests of Outdoor Advertising Company The outdoor advertising company must have a written or oral agreement . with the owner: of lessee of the real property. The agreement .must be in effect and authorize the structure to remain placed for a ,period. of time beyond the date of acquisition. (The date of acquisition is considered to be. -21- 73 the earliest of the following dates: the effective date of a Right of Entry, the day following the date of close of escrow for the underlying fee interest, or the date of issuance of summons when RCTC acquires property subsequent to the date the summons was issued).. A Quitclaim Deed or Contract will be obtained from the company. No written or oral commitments are to be made which makes structure removal contingent upon project certification or construction dates. If the structure is fully conforming to State and local law and would create no problems if allowed toremain in place for a period of time, then the site for the structure can ` be rented to the company without loss of its right of compensation: If the structure is not fully conforming and /or its removal is imminent, no rental will be permitted and the contract should provide for immediate removal of the structure. The company may claim compensation on the basis of direct costs. They will have to submit an itemized statement of such direct costs to RCTC. The companybooks and records will have to be made available for inspection or audit to justify these costs. Where historical direct costs are not available from the company's records, the company may estimate the amount of such direct costs, subject to verification by RCTC. Where the structure is located on a total acquisition;; which is completely_._, within =the right -of :way ''or where -the structure is located on that portion of a total acquisition, which lies within the .right way, no relocation on the remainder will be permitted. On partial acquisitions, if the structure is relocated, the company shall be entitled only to a relocation:,ailowance d. Rate and Relocation Allowances All rates and relocation allowances referred to in this sub -section .shall be based on rate and allowances stated in the Appraisal Chapter of the Caltrans Right of Way Manual. e. Structure Rentals All structure rentals shall be prorated as of the day following the date the deed to RCTC is recorded or the day following the date the RCTC secures legal possession, whichever occurs first. Fair rental rates will be charged for all structures allowed to remain within the right of way. The determination fair rental rate will be based on comparable rentals being paid in the general vicinity. 22 _ 74 For structures located partially within the area being acquired and being allowed to remain until notice to remove or relocate is given, the contract shall provide for the appropriate pro -ration of rental payment by the advertising company to both RCTC and grantor. Acquisition of On -Premise Signs In partial acquisitions, it is the policy of RCTC to treat all on -premise signs including trademark and logo signs as !personal property under. the Relocation Assistance Program. The exception would involvea situation. in which there is insufficient land on which 'to relocate the sign. In these circumstances, a sign will be valued and acquire as real estate. Advertising Sign .Encroachments Advertising -signs located: partially within the; right of way, which are designated for removal, shall be totally removed, unless the owner retains the improvement and modifies it to avoid the right of way line. No on -premise signs (except enter and exit signs) or outdoor advertising structure will be allowed to encroach on the right of way. 6-3.15 Reimbursement of Property Owner's Expenses RCTC may reimburse property owners for expenses incurred in. 'development of a property, when development is interrupted by acquisition, provided certain criteria are met and an audit of the validity of 'the claimed expenses supports such payment. Expenses incurred by the property owner for the following' items are reimbursable by .RCTC 1.. change in development, architectural, structural and drainage plans 2. map checking fees 3. building permit fees 4. materials 5. survey fees 6. inspection fees Reimbursement of Mortgage Prepayment Penalty Owners will be reimbursed for actual penalty costs for prepayment of a preexisting mortgage- entered into in ,good n faith and recorded prior to initiation of negotiations.' c. Pro -ration of Real Property Taxes Real Property Taxes shall be pro -rated, as of the date of close of escrow. -23- 75 6-3.16 Uneconomic Remnants a. Definition — "A parcel of real property in which the owner is left with an interest after the partial acquisition of the owner's: property, and in which the acquiring agency has determined has little or no value or utility to the owner." (49 CFR 24.2.(w)) b. Offer to Purchase Uneconomic Remnants An offer to purchase each uneconomic remnant shall be made to the owner simultaneously with the offer of just compensation for the acquisition of the right of way, if the value was established in the appraisal. Situations revealed during negotiations or administrative decision to consider all or part of remainders as uneconomic remnants, may necessitate a revised offer reflecting the value of the uneconomic remnant. Multiple uneconomic remnants shall be individually identified and individual values must be set out in the offer letter. 6-3.17 Extension of Possession and Fair Rental Value In rare instances, where the Replacement Housing for a displacee (or new place of business or a business. displacee) an owner or tenant may b'e. allowed an extension _of possession based on a_..monthly .rental .rate._ An extension of _. possession agreement- shall be developed by RCTC through its legar counsel. The extension shall be for a period not to exceed one hundred eighty (180) days following the close of escrow and may be terminated by RCTC at 30 days' written notice, provided that the displace is provided with alternative housing:. When an owner or tenant is _granted an extension of possession,, a monthly, rental rate ,shall .be established and collected in advance for each monthly period of extension. 6-3.18 Clearance of Unrecorded Interests A preliminary title report shall be secured for all properties and property interests to be acquired by .RCTC. The preliminary title report must be analyzed to determine which exceptions will be cleared and which will remain and: title to be taken subject to the encumbrance. This would include vesting information, Liens, encumbrances, easements, covenants, conditions and restrictions, . 'leases, reservations, taxes, assessments, bonds, trust deeds, mortgages, .contracts of sale and bonds. Every effort to, secure clear title for the RCTC must be made. Items, which do not materially or adversely affect the use of the property for the project, may be taken "subject to" in the Purchase Contract. However, there are matters that affect title which do not appear of record. It is the responsibility of the Acquisition Agent to protect.. the RCTC against loss due to 24 - 76 any matters affecting title, which do not appear of ;record. These matters may be discovered through property inspection during negotiations. Some items which inspection of the property may disclose are: Parties in possession under an unrecorded deed or contract of purchase; Community driveways, pole lines, pipe lines, irrigation ditches, or roadways indicating easements or rights of way, which do not show in the title report. Streams, lakes, rivers or ocean, which :may affectboundaries. Overlapping or encroaching improvements. Violations of restrictions or zoning ordinances. ' The.: Purchase Contract or an amendment Y thereto shall specifically obligate the property owner to eliminate such :interest at owner's sole cost and expense prior to acquisition. 6-3.19 Indemnification Clause Whenever the °RCTC is acquiring title subject: to -exceptions of a questionable nature, an appropriate 'Indemnification Clause to be approved' by the ROTC Legal Counsel as to form .and substance. 6-3.20 Covenants, :Conditions and Restrictions Title may be taken subject to the conventional, general on individual type oftract restrictions, provided the nature and effect are 'known and considered. Unusual covenants or conditions which restrict land for a specific use, such .as ;park purposes school purposes, railroads, shall be considered particularly as to a possible forfeiture of title upon breach or. violation: Conveyances to clear such . reversionary interests should be secured as necessary. 673.21 Easements General r sent an d future effect on h e All easements � are to be as to both the, . p property being acquired. The location.- of the easement in relation to the part taken is to : be determined prior to preparation of the Purchase Contract. If an. easement constitutes a present or future adverse interest in the part taken, it should be; eliminated by appropriate instrument prior. to scheduling, if possible. Where the nature of the easement does not warrant the cost in time and effort to eliminate, it may be taken "subject to" or through an Indemnification Clause. 6-3.22`Gross or Appurtenant Easements -25- 77 All easements in favor of third parties for ,personal or business use, such as driveways, roads or utilities, whether in gross or appurtenant, should be cleared prior to scheduling and certification of the project for construction. This clearance should be done concurrently with the fee acquisition. Interests not cleared prior to the close of escrow must appear .as'an exception in the Purchase contract since they will also appear as exceptions in the Title Policy. 6-3.23 Blanket Easements The interest of easement holders in so-called "blanket" or "floating" easements should be cleared if the choice of location has been exercised. An example is an easement affecting a whole subdivision. Such easements affect title to the entire property and will be shown as encumbrances in title policies unless eliminated by property conveyance. 6-3.24 Obsolete Easements Easements or rights that are discovered by either observation or inquiry to be obsolete, abandoned, extinct and of no present or future adverse effect are to be listed in the Purchase_ contract as such. 6-3.25 Utility Easements Public or ;private. -utility easements may or may not have :a 'facility located (overhead, surface or underground) in the property. Clearance and elimination of private easements from the right of way being acquired will be the responsibility of the Acquisition Agent. This is usually done by Quitclaim Deedwith an obligation in the Purchase contract to secure a replacement easement, if necessary.. _Relocation of a private facility may be handled by or with assistance from the Relocation Agent. If the easement is public (easement in gross) and no facility exists, the Acquisition Agent in consultation with the Project Manager, must determine whether to take title subject to the easement. The utility company may have plans for future facility and the it is incumbent upon the AcquisitionAgent to negotiate an agreement with the utility company recognizing such future. use. The Project Manager will arrange for relocation of all facilities installed in public utility easements. The substitute easement will be acquired either by the utility company or by the RCTC at the request of the utility cornpany. If acquired by the ROTC, the location shall be acceptable to the utility company. This replacement area is subject to the same controls and clearances that apply to regular rights of way, including hazardous waste clearances. Acquisition of right of way from a utility company involves a variety of approaches, i.e., fee or easements, vacant, site or corridor; improved site or -_ 26 - 78 corridor; replacement right of way and the Acquisition Agent should be thoroughly knowledgeable with the procedures involved in acquiring right of way from the utility company. 6-3.26 Court Actions, Consent to Dismissal Title may : be taken .subject to the RCTC's pending condemnation , action. Elimination of other court actions is generally required. In all instances .involving right of way on which the RCTC has filed condemnation suit, it .is imperativeL that the dismissal clause be included in the Purchase Contact. No settlement should be approved by RCTC unless reviewed by Legal Counsel. 6-3.27 Clearance of Lessee Interest The interest of >a lessee or other legal occupant, e.g_, tenant, is cleared through either a Quitclaim 'Deed running to the lessor or to the RCTC or through', the eminent domain process. Leases that are in effect must either be eliminated or assigned to the RCTC. A Ie'ssee may have a compensable interest in improvements, which the 'lessee has installed on the property. Unless the lease calls for the tenant improvements to be owned by the lessor at the end of the term of the lease, the lessee must be offered the salvage value of lessee owned improvements or the 'value they contribute to the property, whichever is greater. The lessee will be given a separate >offer for the : improvements, provided the lessee_ secures .,-a written waiver of interest -from .the lessor. If the agreement is not .reached, :an un- segregated statement of value is to be made to all the parties: The appraiser must ascertain ownership of the improvements and segregate values in the appraisal. A written confirmation as to the ownership. must be secured prior to -settlement. ; The lessee -shall = not `bedeprived of payment for = improvements ,on the property when the RCTC acquires the 'leased fee. The RCTC should not attempt to assume the rights of a lessor and cancel the Lease to avoid payment for improvements. Settlement of lessor/lessee interests separately is ;a permissible procedure.. It may be feasible:. without` agreement between the lessor and lessee: The Acquisition Agent should ensure, through early contact, that the 'lessee is fully informed of their right (in case of a business tenant) to relocation. A lessee, in relocating a business, may prematurely vacate 'the :premises and in so doing, give up or waive valuable rights, such as, forfeiture of rights to compensation for relocation benefits or possible loss of business goodwill.. 6-3.28 Presumption of interest and Right to Cancel A lessee or tenant in possession is to be presumed to have some interest in the property unless the contrary is established. -27- 79 The RCTC shall not attempt to use any lease . cancellation clause to acquire improvements at less than their salvage value or contributory value, whichever is greater. 6-3.29 Leasehold: Bonus Value If a bonus value is shown in theappraisal, the Acquisition Agent is not -to offer it to the lessee. Ultimately, the lessor and the lessee will either agree as to its existence value or the court will decide. The bonus value may be suggested to the lessor that because of the terms of the lease, the lessee's interest may be more than a compensable interest in the improvements. 6-3.30 Condemnation Clause A lease may contain what is commonly referred to as a "condemnation clause'. This clause usually provides that in the event the property is taken under the actual or potential exercise of eminent domain, the lease shall terminate; lessee will pay pro -rated rent to the date of vesting or possession by condemnor; and lessee_ has no claim to the compensation paid to the lessor by.the condemnor. In partial acquisition, the lease may provide the lessee with the option to terminate the lease or continue in occupancy with a proportionate reduction in rent. Advice of Legal Counsel is must in interpreting these type of lease provision. 6.3.31. Access Rights . r In cases involving acquisition of access rights only, relinquishments or subordinations are to be secured .from all parties whose interest would be detrimental to the achievement of access control.. Ordinarily, theseinclude trustees and beneficiaries under deeds of trust; mortgages; lessees; holders of liens, the foreclosure of .which would either nullify or jeopardize the: rights being acquired by the RCTC; and holders of easements or rights of way of any kind whose ability to utilize and enjoy them would be materially diminished or damaged by RCTC's acquisition of access rights to the subject property. 6-3.32 Tax Identification Numbers Federal and State Governments require that payments for real estate transactions be reported. Information required includes the grantor's Tax Identification Number or Social Security Number. Escrow Companies routinely collect this information. 6-3.33 Improvements in General All of the improvements within the right of way are generally acquired. Often the owner may want to retaincertain improvements and relocate there or. RCTC must acquire improvements on remainder property. Relocation, as referred to in this subsection, is an acquisition concept where °improvements are moved from the -28- 80 required property to a replacement, substitute or remainder. property. Improvements pertaining to the realty, which an owner has severed from the, real estate prior to an acquisition_ agreement, are converted to personal property and handfed under the, Relocation Assistance Program,. if RCTC determines 'this action is inthe :best interest of the public and the cost. to relocate the reclassified property is consistent with current federal regulations. When acquiring motels, hotels or furnished apartments, it may be'. necessary to acquire the furnishings to prevent the eviction of tenants who would be unable to continue to :occupy thepremises if the furniture is retained and removed by the. fee owner.., The appraisal of these types of properties will contain an inventory and estimated market value of the furnishings. Whenever; structural improvernents are partially or totally within the required right of way, the owner may be given at the option of ROTC, to either: (1) relocating the improvement in .lieu of purchase; (2) having the RCTC purchase, the improvement; or (3) retaining the improvement. The :determinationmust be based :on economic feasibility. If the owner chooses to relocate the improvement and moving cost is to be made directly to the owner, the amountwill.`be based on the best and . most 'reasonably competitive moving ;bids obtainable from qualified contractors. A minimum of two (2) bids is required, if obtainable. If the owner chooses to retain the improvement, RCTC will be.: relived of ' any responsibility :for their removal and clearing of the site. The owner.` ofthe improvements assumes the entire obligation of improvement removal and site I:e:arance. Removal time of improvements should normally be ' completed in a 60-90, day period. The Purchase Contract shall specify a date by which the' improvements are to be removed and provide for clearance of the site. 6-3.34 WaterWells The replacement of an existing water well can be done by a cashpayment or by the RCTC contracting for the drilling of a replacement well. If'`RCTC:-will be contracting for the replacement of the well, copies .of all the standard tests ;on both the existing well and new well should be kept in the parcel file. The new wellshould, produce the same or better quality and quantity.-o:f water compared' to : the old well. 6-3.35 Construction Obligations When RCTC is :required to do certain work on grantor's remaining property (as partof the consideration for acquisition). This work .can rangefrom construction of fences, irrigation facilities, re -paving driveways to replacement of structures. The extent of construction should be completely, described in: the Purchase Contract and/or 'Administrative Settlement.: 6-3.36 :Exchanges and`Abandonrnents ' -29- 81 c. Excess property may be used in exchange for -other property required for a project. Exchanges of land in right of way transactionsshould be limited to those cases where the excess real property is contiguous to the remaining property owned by the grantor of the property being acquired. Non-contiguous exchanges are not recommended since it may be injurious to the interests of an abutting property owner. Excess real property or an interest therein, proposed .for exchangedshall be appraised. This requirement does not apply to ,parcels acquired specifically as substitute -parcels for public utilities, government -owned` land or railroad. 6-3.37 Loss of Business .Goodwill State Law provides that in certain cases,. an owner of a business may be compensated for the loss of goodwill. The law requires that the owner of a business conducted on the property taken, or on the remainder if such property is part of a larger parcel, shall be compensated .for loss of goodwill if the owner proves: a. The loss is caused by. the acquiring of the property or the injury to the remaining property. b. The loss cannot reasonably be prevented by a relocation of the business or by taking steps and adopting procedures that a_ reasonably prudent person would take and adopt in preserving the oodwill.., Compensation for the loss will not be included in payment under Section 7262 of the Government Code (Relocation Assistance Program). d. Compensation for the loss will not be duplicated in the compensation otherwise .awarded to owner. For purposes of this subsection, "Goodwill" consists of the benefits that accrue to a business as a result of its location, reputation for dependability, skill or quality and any other circumstances resulting in probable retention of old or :acquisition of new patronage. The burden of proving that the loss cannot be prevented by relocation or other efforts by the business owner to mitigate, rests on the business owner. "Business" as used in this subsection is defined as: 1. A commercial or mercantile activity engaged in as a mean of livelihood; 2. A commercial or sometimes industrial enterprise; 3. A particular field of endeavor — patronage. -30- 82 The operation of residential, non -transient, rental housing is not considered a. business. However, the operation of housing units where rental is ordinarily billed on a daily basis (e.g. motels, hotels) is to be considered a business. A farm is not generally considered as a business unless there is an on -premise full time, retail', 'commercial operation involving products grown or developed. in the: property. A seasonal fruit stand operation would not be consideredas.. a business: 6-3.38 Hazardous Waste Hazardous Waste (HW)is a great concern for the RCTC. The RCTC must not acquire -:property contaminated with HW without adequate prior` . investigation and property contractual and valuation safeguards. In order 'to avoid delay , in a project or acquiring property with possible contamination; investigation to determine clean :up costsmust: be made :as soon as 'possible. I`f HW is suspected or discovered during the acquisition process, the. Right of Way Department should immediately notify the Project Manager, :in< writing, and hire.a consultant Hazardous Material Assessment:.:: .The Project.:' Manager may advise the ROW Department to proceed with the acquisition` because it is in the best interest of the project and the potential HW contamination risks and costs are low or the problem can be handled -with :engineering methods: during construction. The decision to :acquire is made by the project Manager and rnust be fully documented: If further investigation is necessary, the Acquisition Agent will contact :the property owner to advise of the process being pursued and to obtain Right of Entry Permits.: When `'testing is complete and cleanup` costs are known,`` the 'appraisal must be :revised to reflect the effect contamination and required clean up . .has :on market value: Settlements: whenever possible, are to be based on cleanup prior to acquisition using the original appraisal. Settlements made where cleanup occurs . after acquisition are to be based on the original appraisal contingent -upon cleanup or a revised appraisal that includes the effects of HW and clean up costs. If settlement is reached based on the, RCTC doing the cleanup based on the, original' appraisal, the amount of the estimated cleanup should be considered for inclusion in the Purchase Contract. 6-3.39 Mobile Homes -31- 83 Mobile homes, which are non-DS & S and cannot be- moved from their present locations . due to the manner in which they are affixed to the site may be purchased. The Relocation Agent will be responsible at the appraisal stage for determining if a mobile home should be purchased. The reasons underlying this decision will be communicated by the Relocation Agent, writing to the ROW Program Manager, which will become part of the appraisal. The transfer of title is handled . through the Department of Housing and Community Development (HCD). The HCD has a multiple page form (Form No. 9-S Bower) for use in handling the transfer. This form provides for .Notice of Transfer, Bill of Sale, Authorization for Payoff and power of Attorney. To convey title to a mobile home, the owner's signature must be obtained on the following; a. Purchase Agreement b. Notice of Transfer 9Form No. 9-S Bower) c. Bill of Sale d. Authorization for Payoff (if financed) e. A Power of Attorney f. Certificate of ownership (pink slip) g. Quitclaim Deed (of tenant occupied) The owner -will have the Certificate of=Ownership°(pink =slip) if the mobile home i free and clear. If the unit is subject to liens, the owner will have the Green Trailer Registration Card. This will show both Legal and Registered Owner. All fees and charges required by the HCD in connection with the transfer of title to the mobile unit to the ROTC, except liens, encumbrances, assessments, taxes delinquent registration or license fees, shall be :paid, by 'RCTC. _ 6-3.40 Federal and State Lands Interests in land owned by Federal and State agencies are secured under appropriate Federal or State statutes (Federal Highway Act of August 27, 1958 (23 USC 107(d) and/or 317), Section 101.5 of the Streets and Highways Code, and 6210.3 public Resources Code). In most cases, the right to the land is. secured at no cost in terms of cash payment, although there can be considerable expenditure for replacement or relocation of existing facilities. 6-3.41 Mining Claims An unpatented mining claim establishes an interest in land, which will continue in existence until eliminated, whether by an appropriate conveying document or be legal process before a court of competent jurisdiction. - 32 -- 84 Every reasonable effort .shall. be made to obtainquitclaim deeds to the right of way from persons 'holdingmining claims on the land to be acquired even though the claim may appear to be abandoned. If clearance of the claim cannot be obtained by Purchase Contract and Quitclaim Deed, then condemnation shall be - instituted. However, if after diligent search, the owner cannot be located, a statement of the facts is to be noted on the Acquisition File and a recommendation `maybe made to acquire 'title subject to this outstanding interest. Such recommendation must be approved by the RCTC Legal Counsel. 6-3.42 IndianLands The Bureau of 'Indian Affairs approves transactions involving Indian; lands. Indian "lands are held in trust by the federal government : as either "Tribal lands" or "Allotted Lands". Tribal Lands are lands - withinthe boundaries of an. Indian reservation that are held in trust by the federal government for the Indian tribe as a community. Allotted: 'Lands are land . within -a reservation, which are apportioned and distributed' in severalty to tribe members. Title to allotted ;lands is held in trust by the federal government for individual Indians. The Bureau of Indian Affairs should be consulted for the appropriate procedure for acquisition. Prior contact with the Bureau is essential. The clearance of projects that involve railroads consists of two separate but closely connected functions: Acquisition of railroad property rights. -''Agreement With theTailroad for physical bonStruction-of-the project: :`Either of these functions may involve federal and., state agencies, such as; Interstate Commerce Commission and the State of California Public Utilities Commission. - 33 85 CHAPTER VI ACQUISITION, NEGOTIATION and EMINENT DOMAIN Section 6-4 Administrative and Legal Settlements 6-4.1 Purpose Administrative settlements are made for the purpose of concluding negotiations for amounts considered reasonable, prudent and in the public interest, after reasonable efforts to :negotiate agreements at the approved offers have failed. When Federal or State 'funds pay for or participate in acquisition costs, a written justification shall be prepared which indicates that available information (e.g. appraisals, recent- court :awards„ estimated --trial .costs or valuation .problerns) support such a settlement: (see 49 CFR 24.102(i)). - Administrative settlements are not to be used for the purpose of correcting errors or omissions in an appraisal. Such errors or omissions should be addressed by correcting the appraisal and making a revised offer. 6-4.2 Settlement Authority a. The Project Development Director is authorized to approve a settlement when the difference between the approved Just Compensation and the proposed settlement is no more than 5% in excess of the offer or no more than $50,000 of the offer. b. A Deputy Executive Director is authorized to approve a settlement when the difference between the approved Just Compensation and the proposed settlement is no more than 7% in excess of the offer or no more than $100,000 of the offer. c. The Executive Director is authorized to approve a settlement when the difference between the approved Just Compensation and proposed settlement is no more than 10% in excess of the offer and no more than $200,000 of the offer. -34- 86 d. When the difference between the approved Just Compensation and the proposed settlement, is over $200,000 and over 10% over the offer, the proposed administrative settlement must be approved the RCTC. Property Cornmittee. If the relevant property is located within the district of a Property Committee Member and is being considered for a protective or hardship acquisition, that Property Member should: recuse him/herself from participation in the decision. All Administrative Settlement forms shall be prepared by the ROW Program Manager stating the justification for the settlement and concurred to by the Commission's Legal Counsel. 6-4.3 Legal Settlernents A Legal Settlement shall be in the form of a Legal Memorandum :prepared, and recommended by the Commission's Legal Counsel. Settlement Authority for Legal Settlements will be the same as Administrative `Settlements (see Section 6-4.2, above). 6-4.4 Record Keeping The original copy of -the -Administrative .and Legal Settlemen filed in the parcel. -35- 87 Section 6-5 CHAPTER VI ACQUISITION, NEGOTIATIONS and EMINENT DOMAIN. Eminent jDomain 6-5.1 General Eminent Domain is the inherent power of government to acquire private property for public use. The owners of private ;property shall not be deprived of their property without just compensation as provided for in the 'United State and California Constitutions. Condemnation is the legal proceeding by which the power of eminent domain is exercised. Notice of a of a_ Resolution of Necessity CCP Section 1245.235 requires that an owner be given notice of the meeting at which the RCTC Board of Commissioners will consider a Resolution of Necessity . for acquisition of the owner's property. Preparation and mailing of the Notice of a - Hearing .of a._ Resolution: of Necessity shall _-be handled : _by, RCTC Legal Counsel. , Any one of the following must sign the Notice; no further delegation of this authority is permitted: The RCTC Executive Director; the Project Development Director, Project Delivery Director or RCTC Legal Counsel. The Notice should be delivered to the owner no less than 15 days prior to the date of the meeting at which the RCTC Board of Commissioners will consider the request. If for any reason, any information in the Notice or legal description already provided to the owner ceases to be correct prior to adoption by the Commission, a new Notice should be sent to the owners concerned. RCTC shall also give notice to the legislative body of the affected city or within the unincorporated area of any affected county as required by section 130220.5(c) of the California Public Utilities Code. RCTC Legal Counsel review of all proposed Resolutions of Necessity and related agenda packets is required. =36- 88 6-5.3 Record of Condemnation Case Status The ROW Department will maintain a record of the status of condemnation cases commencing with the submittal of the Request for Resolution of Necessity to the Commission. The record is kept current through the duration of , the condemnation action. 6-5.4 Condemnation Suit The RCTCLegal Counsel shall have full control of the condemnation proceeding and should be afforded, full cooperation by the ROW Department, Right of ,Way Consultants and Expert witnesses. -37- 89 Section 6-6 6-6.1 Policy CHAPTER VI ACQUISITION, NEGOTIATION and EMINENT DOMAIN Reporting of Acquisitions It is the policy of the RCTC to report the acquisition of real estate or real estate rights to the Internal. Revenue Service (IRS). 6-6.2 1099-S Reporting Procedure a. Transactions Reported The RCTC is responsible for reporting to the IRS real estate acquisitions in excess of $599. This reporting includes all acquisitions by either negotiated settlement or by condemnation. Specifically, the following must be reported: l Real-: Estate .acquired_ for .the -RCTC use Property acquired b urchase or condemnation for right of way -or or p �Y . q Y p 9 Y--LL permanent easement. Temporary construction easements if the easement is to last 30 years or is purchased in combination with a permanent easement or right of way. Damages to, remainders.. included _-with ,,the ,amount; paid.. for the. acquisition of a permanent easement or right of way. When a jury verdict or a legal settlement results in $600 or more of interest 'being due the owner, the payment of interest is to be reported to the IRS. b. Transactions Not Reported 1. Purchases from corporations and governmental agencies. 2. Transactions where total compensation is less than $600. 3. Amounts paid. for temporary construction easements when the duration of the easement is 30 years or less. c. Year of Reporting Under IRS rules,_ an acquisition has to be reported in the year the transaction is closed. For purchases, this is the date the check is received by the Escrow Agent or the property owner. -38- 90 6-6.3 Taxpayer Identification Numbers It is required q taxpayer � urged . that the ROTC or Escrow Agent) re request a tax a er identification number .(TIN) . from . all persons having an interest in the real property to be acquired, at or before the time of closing. Under IRS rules, any person =whose TIN :is required must furnish such TIN and certify that the TIN .is correct. The solicitation must be made: in writing to the taxpayer that they are ;required to furnish', a correct'TlN and that they may be subject to civil or criminal penalties. for. failing to furnish;a correct TIN. Acquisition Agents should solicit TIN information from owners during negotiations. TIN shall be provided to the ;Accounting Department prior to any disbursements. When dealing .with a representative of the owner, it is permissible to request that the . representative .:obtain the TIN from the taxpayer; however, if they . fail to supply the information, a request must be sent to the taxpayer. 6-6.4 Methods of Reporting to the IRS For negotiated settlements, the Escrow Company handles the reporting the IRS. If the property is condemned and a jury verdict or settlement is obtained, it should be determined if the County Clerk is reporting transactions to the RS ; .. If- not, _ then the RCTC :Accounting - Department .-will report the transaction to the IRS. If the: property is condemned and the jury verdict or settlement is greater than the deposit of probable compensation, a correct 1099-S should be sent to the IRS. -39- 91 Section 6-7 CHAPTER VI ACQUISITION, NEGOTIATION and EMINENT DOMAIN Filing of Completed Transactions 6-7.1 Filing of Recorded Documents and Policy of Title Insurance Upon completion of acquisition, all original recorded or unrecorded Deeds, Final Orders of Condemnation, Appraisal Reports, Escrow Closing Statement, Survey/Appraisal Plats, Legal Description, the Policy of title Insurance, Negotiator's Log (or Diaries) and Certificate of Completion are to be filed in the original Parcel File kept in RCTC's ROW Department. Any changes in the condition of title that occurs after the date of issuance of the Title Policy shall be noted in the file, as well as Joint Use and Consent to Common Use Agreements, Joint Development Agreements, Abandonments and Special Use Permits. 6-7.2 Certification of Completion of Acquisition After all necessary documents and acquisition completed, on all parcels in an appraisal report, the Acquisition Agent shag_ immediately, prepare and forward to the`ROW -PrOgrm -M6nager a Certifi6ate of Completion. It Will certify -that all parcels in that appraisal report have been acquired, have found it to be unnecessary, or have been disposed of in other manner. The ROW Program Manager, after review of all pertinent documents, shall sign the Certificate of Completion. The Certificate of Completion of Acquisition shall contain the following information: a. Project Name - b. Project Number, if any c. File Number d. Property Owner's Name(s) e. Property Address f. Property Acquisition Cost Copies of the Certificate of Completion of Acquisition shall be sent to the Project Development Director and the Project Manager. Copies of the Certificate of Completion of Acquisition, together with copies of all Deeds, Final Orders of Condemnation, Policy of Title Insurance and other Agreements will be delivered to the Accounting Department. - 40 - 9 2 CHAPTER VII RELOCATION ASSISTANCE TABLE OF CONTENTS Section 7-.1 General Policies and Information 7-1.1 Policy 7-1.2 Purpose 7-1.3 Title VI, Civil Rights Act 7-1.4 Availability of the Relocation Program 7-1.5 Applicable Laws and,Regulations a. federally' Funded Assisted Project b. State and Locally funded Projects c. Conflicts 7-1.6 General Eligibility Requirements 7-1.7 Definitions - a. Person ID Family c. Displaced Person 1. Initial occupant Less Than 90,Day`Occupants Subsequent Occupants Displaced Tenants and Owners — Not Located Within ROW taking Tenants Displaced to Make Room for Rearrangement of LandownersBusiness Operation Voluntary Sales . Cancellation of Eligibility as Displaced'+Person d. Relocatee-Displacee e. Partial,Displacement f. Total Displacement g. Initiation of Negotiations for the Property h. Dwelling i. Dwelling site. j. Comparable Replacement Dwelling k. Decent, Safe and: Sanitary Dwelling ("DS & S") I. Business ; m. Small Business n. Non Profit Organization o. Farm Operations p. Contributes Materially q. Owner r. Short -Term, Owner s. Conventional Loan t. Replacement Housing Payment -1- 93 u. Subject Property, Parcel, Dwelling; Displacement Property v. Replacement Property w. Date of Taking x. Tenant y. Last Resort Housing Program z. Rental Subsidy Payment aa. Utility Cost bb. Uniform Act cc. Acquired 7-1.8 Interest Acquired 7-1.9 Ownership Qualifications a. General Ownership Qualifications b. Contract to Purchase — Subject Right of Way Parcel c. Contract to Purchase Replacement Parcel d. Owner's Acquisition by Device, Bequest, Inheritance or Operation of Law e. Part Owners, Partnerships, Estate Members, Subject Right of Way Parcel f. Part Owners and Partnerships — Replacement Property g. Properties Involved in Foreclosure 7-1.10 Availability of Comparable Replacement Dwelling Prior to Displacement 7-1.11 Eviction for Cause 7-1.12 Incompetent Owner or Occupant 7-1.13 Relocatee Dies During Displacement Period 7-1.14 Rest Home and Nursing Home Patients 7-1.15 Displaced Students 7-1.16 =Losses Due- to Negligence 7-117 Relocates s-Refusal of Assistance -' 7-1.18 Rental of RCTC-Owned Property 7-1.19 Relocation Payments Not To Be Considered As Income 7-1.20 Delivery of Relocation Payment Checks 7-1.21 "Rounding" of Claim Amounts 7 ,1.22 Duplicate Payments 7-1.23 Retention of files, Records and Reports a. Federal Regulation = Record Keeping (49 CFR 24.9(a)) b. Federal Regulation— Confidentiality of Records (49 CFR 24.9(b)) c. Federal Regulation — Reports (49 CFR 24.9(c)) d. Relocation Case Files e. Relocation Log or diary 7-1.24 Withholding of Relocation Payments 7-1.25 Manner of Notices 7-1.26 Relocation Program on Projects Affected by a Major Disaster 7-1.27. Notice of Intent to Acquire 7-1.28 Administrative Responsibility Section 7-2 Relocation Assistance Advisory Service 7-2.1 General 7-2.2 Purpose -2- 94 7-2.3 Eligibility for Advisory Service 7-2.4 Advisory Service Requirements Section 7-3 Appeals 7=3.1 General (49 CFR 24.10(a)) 7-3.2 Appealable Actions (49 CFR 24.10(b)) 7-3.3 Time Limit (49 CFR 24.10(c)) 7-3.4 Right to Representation (49 CFR 24.10(d)) 7-3.5 Review of files (49 CFR 24.10(e)) 7-3.6 ' Scope of Review (49 CFR 24.10(f)) 7-3.7 Determination and Notification After Appeal (49 CRR 24.10(g)) 7-3.8 Agency Official - RCTC Chief Executive Office (49 CFR 24.10(h)) 7-3.9 Appeal Process a: First Level Appeal b. Hearing Date c. Right to Counsel d. Final RCTC Decision Section 7-4 Relocation Notices 7-4.1 General Information (49 CFR 24.203(a)) 7-4.2 Notice.of_Relocation-Eligibility _(49 CFR 24 203_(3) 7-43 Reminder Notice 7-4.4 90-Day Notice '(49 CFR 24.203(c)) 7-4.5 Content of Notice (49 CFRR 24.203(c)(3):) 7-4.6 30.-Day and .90-=Day Notices to Vacate 7-4.7 .60-Day Notice to Vacate (Mobile Home Occupants) 7-4.8 -Notice to Vacate With Order of Possession 7-4.9 Notices to Unlawful Occupants 7-4.10 Urgent Need (49 CFR 24.203(c)(4)) Section 7-5 Availability of Comparable Replacement Dwelling 7-5.1 General_ (49 CFR 24.204(a)) 7-5.2 Waiver of Policy (49 CFR 24.204(b)) 7-5.3 Emergency Move (49 CFR 24.204(c)) Section 7-6 Relocation Payments 7=6.1 Documentation: of Claims (49 CFR 24.207(a)) 7=6.2 Expeditious Payments (49 CFR 24.207(b)) 7-6.3 Process For Standard Clairn Form 7-6.4 Assignment of Claim -3- 95 7-6.5 Check Delivery 7-6.6 Advance Payment (49 CFR 24.207(c)) 7-6.7 Time for Filing claims (49 CFR 24.207(d)) 7-6.8 Multiple Occupants of One Dwelling (49 CFR 24.207(e)) 7-6.9 Occupants Separate or Divorce 7-6.10 Owner -Occupants With Partial Ownership Interest 7-6.11 Deduction From Payments (49 CFR 24.207(f)) 7-6.12 Notice of Denial (49 CFR 24.207(g)) Section 7-7 Moving Cost Payments 7-7.1 Payment Eligibility 7-7.2 General Moving Cost Policies a. Policy Concerning More Than One Move b. Distance of Move c. Owner Retention d. Two or More Families Occupy Same Single -Family Dwelling Unit 1. Separation After Displacement 2. All Families Relocate Together 3. Personal Property Sold After Initiation of Negotiations and 'Prior to Displacement (a) Fixed Payment Option (b) Actual Cost Option Subject Real Property. Sold to Another Prope. Payment Assurance to °Moving Firms. 6. Two Bids or Estimates Not Available 7. Overtime Charges 8. Advertising Signs and Signboards 7-7.3 Incidental Moving Costs a. Incidental Costs Applicable to All Moves 1. Storage 2. Insurance 3. Losses in Moving 4. Packing and Crating. 5. Other Moving 'Related Expenses b. Incidental Costs Applicable Only to Residential Moves 1. Removal and Reinstallation Expenses - Appliances 2. Cost of Transportation, Meals and Temporary Lodging 3. Nonrefundable Mobile Home Park Entrance Fee c. Incidental Costs Applicable Only to Business, Farm; and Nonprofit Organizations 1. Removal and Reinstallation Expenses - Machinery, Equipment 2.2. Licenses and Permits 3. Professional Services 4. Re=lettering. Signs, Replacement of Stationery and Notices 5. Search for Replacement Site 6. Costs of Attempting Ito Sell Personal Property -4- 96 7. Purchase of Substitute Personal property 7-7.4 Tangible Property Losses 7-7.5 Salvage yards 7-7.6 Reestablishment Expense a Eligible Expenses b.- Ineligible Expenses 7-7.7 . Ineligible Moving Expenses 7-7,8 Residential Moving Cost Payments a. Definition of Residential Moving Costs b. Residential Moving Cost Payments - General c.:. Fixed -Payment Moving. Cost Schedule Schedule A (Occupant ,Provides Furniture). Schedule B (Furniture Provided By Landlord) d. Residential Move by Commercial Mover - General e. Residential Self-rnove 7-7.9 Business, Farm and Nonprofit Organization Moving Cost Payments a. General b. 'Commercial mover c. Self Moves 7-7.10 Partial Displacements a. Partial Displacement Moving cost Payments General b. Partial.Displacement Moving Cost Payments Commercial Mover c.Partial Displacement Moving cost Payments —Self-move 7-7.11 Moving Cost Agreement 2 Claim Forms — Actual Cost Moving cost_ Payments Section 7-8 Fixed Payment Moving Payments Businesses, Farm Operations And nonprofit Organizations 7-8.1 Fixed Payments Businesses a. Payment Eligibility Requirements b. Two or More Business Operations, Same Site and Same Owner c. Businesses Affected by Partial Acquisitions d. Rental property e. Salvage yards f. PaymentDeterminations g Payment Computations 7-8.2 Fixed Payments — Farm Operations a. PaymentEligibility Requirements b. Actual Owner of 'Farris Operation Receives Payment c. Mineral Production and Quarry Operations d. Farm Operations Owned by Estates e. Farm Operations Sold After Initiation of Negotiations #. Payment Determinations g. Payment Computations 7-8.3: Claim Forms -5- 97 7-8.4 Displaced Nonprofit Organizations a. Payment Eligibility Requirements b. Claim Form 7-8.5 Time for Filing "Fixed Payment Claims a. Operation Displaced from Acquisition Site b. Business Operation Continued on Remainder of Acquisition Site c. Nonprofit Organization Continued on Remainder of Acquisition Site d. Substantially Reduced or Different Type Farm. Operation Continued on Remainder of Acquisition Site _ e. Owner of Displaced Operation is "Subsequent Occupant" Section 7-9 Replacement Housing. Payment (" RHP") 7-9.1 General Policy 7-9.2 Payment :Eligibility a. Ownership and Occupancy Requirements — Subject Property ID. Ownership and Occupancy Requirements at Initiation of Negotiations c. Property Must Be Acquire by RCTC from Qualified Owners d. Displacement Must Be Necessitated By Right of .Way Acquisition e. Subject Must Be Owner's Principal Residence f. Decent, Safe and Sanitary Replacements Must . Be Purchased and Occupied Within One Year g. Displaced Owner Occupies Previously Owned Dwelling as Replacement . h. Relocatee Purchased_:Replacement in Partnership With Other Parties _ Deadline For Filing Claims 7-9.3 Amount of Payment (49 CFR 24.401(b)) — 180-Day Owner -Occupant 7-9.4 Payment Computations a. Comparable Methods of Computing RHP 1. Entire Taking of single -Family Dwelling 2. Taking Includes All Residential Improvements and Supporting Land Plus Other Lands 3. Partial Takings of Residential Properties 4. Partial Taking of Residential Property Plus Other Land .. 5. Dwelling On Land With Higher and Better Use 6. Joint Residential and Business Use 7. Multiple Occupancy of Same Single -Family Dwelling Unit 8. Multi -Unit Dwelling Complexes 9. Mobile Homes (a) Payment Covers Both Mobile Home and land (b) Payment Covers Mobile Home Only (c) Payment Covers Land Only (Mobile Home Site) 7-9.5 Insurance Proceeds Due to Catastrophic Occurrence (49 CFR 24.201(c)(3)) 7-9.6 Owner Retention of Displacement Dwelling (49 CFR 24.401(c)(4)) 7-9.7 Replacement Housing Comparison Record a. When Prepared b. Selection of "Comparables") -6 98 c. Advanced Replacement housing Payments in Condemnation Cases 7-9.8 Replacement Housing Payrnent Claims Section 7`-10 Incidental Closing Costs 7-10.1 Definition of Incidental Closing Costs 7-102 Payment 'Eligibility Requirements 7-10.':3 Claim Forms Section 7-11 Increased Interest Payment 7-11.1 General Policy 7-11.2 Payment Eligibility Requirements 7-11.3 Payment Computations a. ; When to Compute Payments b. Payments Computed by Whom c. Payment Computation 7-11'4Claim 'Form Section 7-12 Rental Subsidy Pay_ments- 7-12.1 General Policy 7-12.2 Payment Eligibility Requirements a. Tenants .1. Prior Occupancy Requirements 2. Occupancy Required At Initiation of -Negotiations 3: DS & S Replacement Must Be Rented and Occupied Within One Year 4. Replacement Must Meet DS & S Standards Short -Term Owners c. Long -Term Owners Sleeping Room: e. Deadline ;For Filing Claims 7-12.3:Computations — Rental Subsidy Payment Offers a. Information Necessary to Compute Rental Subsidy Payment`Offers 1: Existing Rental Rate 2. Economic 'Rental Rate 3. Rental .Fee Charged for Most Nearly Comparable Unit .4. Utility Services Adjustments 5. Furniture 'Provided by Landlord Rental Subsidy Computation Sheet 1: When Prepared 2. Who Prepares 3. , ,Preparation -7- 99 NOTE A: Computed Payment Exceeds $5,250 NOTE B: Relocatee Owns Pets or Needs Seeing Eye Dogs NOTE C: Relocatee is Disabled 4. Multiple Occupancy of Same Dwelling Unit (a) Comparable DS & S Unit Available (b) Comparable DS & S Dwelling Unit Not Available 5. Tenant With Less Thank 90-Day Occupancy and Subsequent Occupants 6. Tenant Makes Subsequent Moves Within First Year After Original Displacement 7. Rental Fee For Replacement Unit Increased By Landlord 8. Relocatee Displaced from Conventional Dwelling or Mobile Home Becomes Occupant of Rest Home 9. 'Conversion of Payment 10. Time for Filing Claim 11. To Whom Payment Is Made 12. Manner of Disbursement Section 7-13 Down 'Payment Assistance 7-13.1 General Policy a. Displaced Tenants and Short -Term Owner -Occupants Down Payment Assistance if $5,250 or Less Down Payment Assistance in Excess of,.$5,250 ._ 1 Last Resort Payment Assistance (a) Tenants (b) Short -Term Owners 7-13.2 Payment Eligibility Requirements 7-13.3 Payment Computations 7-13.4 Advance Down_ Payment Assistance 7-13.5 Down Payment Claims a. When filed b. Down Payment Claim Form Section 7-14 Replacement Housing of Last; Resort 7-14.1 General Explanation 7-14.2 Last Resort Determination (49 CFR 24.404(a)) 7-14.3 Tenured Occupants 7-14.4 Nontenured and. Post -Offer Occupants 7-14.5 Made Available (Definition) 7-14.6 Basic Rights of Person To Be Displaced (49 CFR 24.404(b)) 7-14.7 Methods of Providing Comparable Replacement Housing (49 CFRR 24.404(c)) 7-14.8 Last Resort Housing Plan -8- 100 Section '7-1 7-1.1 Policy' CHAPTER VII RELOCATION ASSISTANCE General Policies and Information The Relocation Assistance and Payment Program,' as outlined in: this chapter .of the Right of Way Policies and Procedures Manual, is applicable to all RCTC: projects, regardless of whether the project receives federal or state funds,t and other: activity -which requires the acquisition of real estate under threat of condemnation. The only exception relates to voluntary sales where the owner=occupantof. a property voluntarily sells their property to the- RCTC, after being informed in writing that if a mutually satisfactory agreement cannot be reach,; the property will not be: acquired. Any -tenants displaced as a= directresult of such voluntary', sale u will be entitled to relocation benefits. 7-1.2 Purpose The purpose of this chapter is to promulgate ' rules to implement the Uniform -Relocation Assistance and Real Property Acquisition Policies .Act of 1970 - (42 U.S.C. 4601,' et'se.q.), as amended, in accordance with the following objectives: a. To ensure that owners of real property to be acquired are treated fairly and consistently, to encourage and expedite acquisition by agreements with such owners, to minimize litigation and. relieve congestion in the courts -and to promote` public confidence` in RCTC. land acquisition programs; To ensure that persons displaced as a result of RCTC projects are treated .fairly, consistently, and equitably so : that, such persons will not uffer disproportionate injuries as a result of projectsi,designed for .the benefit of the public as a whole; and To ensure that RCTC employees andconsultants implement government regulations in a manner that is efficient and,cost effective. (see 49 CFR 24.1) -9- 101 7-1.3 Title VI, Civil Rights Act All services and 'benefits under this chapter are administered to all eligible individuals .without regard to race, color, national origin, or sex in compliance with Title VI of the Civil Rights Act (42 U.S.C. 2000d, et seq.). 7-1.4 Availability of the Relocation Program The Relocation Assistance and Payment Program is available to eligible individuals, families, businesses, farm operations and non-profit organizations which are wholly or partially displaced by RCTC projects. Relocation advisory services (not payments) are also available to any person occupying;: property immediately adjacent to property acquired by RCTC when the `RCTC determines such person is caused substantial economic injury because of the acquisition. 7-1.5 Applicable Law and Regulations a. Federally Funded or Assisted Projects When RCTC projects are federally funded or Federally Assisted, applicable federal laws and state laws regulations. and polices are hereby adopted. When RCTC projects are State or Locally Funded, California State laws and regulations are hereby adopted. Conflicts_ In case of conflicts between Federal, State Regulations, and the provisions of this manual, the regulations and :policies that provide greater benefits to the displaces will be followed by RCTC. 7-1.6 General Eligibility Requirements To be eligible for relocation 'benefits relocatees must legally occupy the property that is scheduled for acquisition by the RCTC at the time negotiations are initiated for the subject property and also meet minimum ownership and/or occupancy time requirements and other specific requirements as discussed in this chapter for each of the various relocation payments available. Relocatees who vacate their parcel prior to the initiation of negotiations shall also be eligible (if they meet other requirements) if they were in legal occupancy at the time the RCTC notified them, in writing, of its intention to acquire the property. (Such notices shall not be given; as routine procedure or without prior concurrence from m the ROW Program Manager). 10- 10;2 The preceding General. Eligibility Requirements also apply to moving cost payments except that relocatees who move to and legally occupy properties being acquired by RCTC after the initiation of negotiations can qualify for moving cost payments and advisory services, but normally for no other type of relocation payment, provided,: that they are still in occupancy of the subject (property at the time it is acquired by the .RCTC. 7-1.7 Definitions The following definitions are applicable to this manual and to the RCTC's. Relocation Assistance and Payment Program in general. c. :Includes any individual, family, partnership, company, corporation, organization or association. Family. Means two or more individuals living together in a single-family dwelling unit who are related -by blood, adoption, marriage or legal guardianship who live together as a family unit, plus all other individuals regardless of blood or legal ties who live with and are considered a part of the family »unit, Aprindividuals who live together °without an identifiable head of household will be considered one family: for the purpose of; administering the relocation program. Displaced Person Any person .who moves from legally occupied real property (and in federally - funded projects, self certifies legal residence ; in the United States) or moves -personal property from legally occupied real property, as a direct result of the acquisition of such real property in whole: or in .part by the RCTC including an person who moved from the real roe as a _ y p property rty result of the ,.initiation of negotiations for the property or is issued a: -:notice of intent to acquire and meets the following applicable criteria: 1 Initial Occupant Applies to 'any person who (a) has been in legal occupancy of the subject real property for not less than, 90-consecutive days prior to (1,) the initiation of negotiations for the acquisition of such property, or (2) receipt of a written notice .of the: RCTC's intent {to_ acquire .the property, and (b) moves from the ;subject property (or moves -11- 103 personal property therefrom) subsequent to the initiation of negotiations for such real property. Residential occupants are normally entitled to a relocation housing payment, moving costs and advisory services. 2. Less Than 90-Day Occupants Persons who are in legal occupancy of a 'property at the initiation of negotiations for such property, or at the time they were provided a Notice of Intent to Acquire, but who had not been in such occupancy for 90 consecutive days prior thereto, are referred to as "less than 90-day occupants". Such persons are normally entitled to reimbursement of moving costs but . for no other type of relocation payment unless they cannot afford comparable replacement housing using their own funds. (Under the latter circumstance, the relocates can be paid a relocation housing payment, either rent supplement or down payment assistance payment, whichever is applicable, under the Last Resort Housing Program. Payment computation procedures are explained in the appropriate sections of this chapter). Comparable replacement rentalunits available to displaced occupants with less than 90 days occupancy will be considered "affordable" if ,the total_ of _the monthly rent. ,plus_ utilities .does not exceed ..the total rent and 'Utility -costs -at the, displacement site. Other circumstances may :indicate the affordability, or lack thereof, of any available replacement dwelling. Potential exceptions to the exceptions to the above procedure may be recommended, on a case -by -case basis, to the ROW„ Program, Manager._ 3. Subsequent Occupants A person who is in occupancy of a right of way parcel at the time it is acquired by the RCTC but who was not in occupancy of such parcel at the initiation of negotiations and subsequent occupants are eligible for relocation advisory assistance and can normally qualify for moving cost payments but for no other type of relocation payment unless they cannot afford comparable replacement housing. Under the latter circumstance, the relocatee can receive a replacement housing payment, either a rent supplement or down payment assistance payment, whichever is applicable, under the Last Resort Housing Program. The procedure for determining "affordability" of comparable replacement housing discussed in the preceding subsection for -12- 104 occupants with less than 90 days.. occupancy is fully applicable to subsequent occupants. 4. Displaced Tenants and Owners Not Located Within : Right of W Taking Tenants: Residential tenants who occupy a portion of a parcel that is affected by a partial taking, but who are not actually located within limits of the taking, will normally be eligible for the same relocation payments they would have been eligible to receive had they been located within the taking if (a) the right of way acquisition causes the remainder which they.-occupy,to be uninhabitable due ;to the .taking of a 'facility or service: that is not replaced, or (b) if ,they are located in' the remainder of a mobile home park that was so severely damaged and/or reduced in size by the right of way taking that the owner justifiably discontinues the entire :mobile home park operation at the subject site within one year after the RCTC takes physical possession of the portion 'of the property that was acquired, as right of way. Owners: One who occupies a remainder that is made uninhabitable due to the taking of a facility or service will not be eligible for relocation payments if ,(a) his right of way payment includes damages, in addition to the payment for ,property and rights __acquired .from him, which were , specifically .computed- as being adequate to pay for a cure of the deficiencies which 'makes the remainder uninhabitable, and (b) he has the legal right and physical space to accomplish the cure. Owners who are in a :position to control the necessity for their displacement, and who 'can reasonably avoid such necessity, cannot qualifyfor relocation -payments .by electing not to provide .the cure which they. are . in,: reality been paid to accomplish. Condemnation awards and legal settlements, which are equal to or exceed the approved offer will be considered to include payment for such cures if the approved offer included such payment. If a . condemnation award or legal settlement is. less. than the approved offer, the Relocation Agent •should recommend a payment eligibility determination to the ROW Program Manager. Occupants of remainders which become. legally and/or physically landlocked due to a right of way taking are eligible for the same relocation assistance and payments as occupants of properties which are actually acquired by the RCTC; therefore, routine policies and ;procedures provided throughout this chapter are applicable underthis circumstance rather : than the special . policies and procedures provided for inthis subsection. -'13- 105 5. Tenant Displaced to Make Room for Rearrangement of Landowners Business Operation A tenant who is forced by his landlord to vacate the remainder of a partial taking to make room for the landlord to rearrange a business operation that was affected by a partial taking will normally be considered a displaced .person, and as such, will be eligible for the same relocation assistance and payments that he would have been entitled to receive if he had been located within the taking. If an owner -occupied residence is involved in this type of situation, provide the facts to the ROW 'Program Manager and request for an eligibility determination. 6. Voluntary Sales Owner -occupants who voluntarily sell their property to the ROTC, after being informed, in writing, that _ if a mutually satisfactory agreement cannot be reached the property will not be acquired will, normally, not be eligible for relocation assistance or payments. Any tenants displaced as a direct result of such voluntary sale will be entitled to relocation benefits; however,in these situations the tenants do, not become eligible for relocation benefits until the owner has entered into a purchase agreement to sellthe property to ROTC. _. 7. Cancellation of Eligibility as Displaced Pierson Eligibility as a "displaced person" can be cancelled and relocation payment offers withdrawn, normally due to a change in construction plans, which eliminates the need for a previously designated right of way parcel, if the person is notified in writing that he will not be displaced as originally planned. The written notice must advise that the RCTC will reimburse the person's reasonable expenses incurred to satisfy any binding good faith contractual relocation obligations entered into after they were originally notified of relocation eligibility. Relocation eligibility cannot be canceled if the person has moved from the property. d. Relocatee-Displacee The terms "relocatee" and "displaces" are synonymous and mean any person who meets the definition of a displaced .person. e. Partial Displacement -14- 106 Refers to situations when the taking does not require the displacement of the occupant, but does necessitate the removal of items of personal property, which are located within the new right of way boundaries. Total :Displacement One which causes the actual displacement of a person, family, business, :farm operation or non-profit organization. Initiation of Negotiations for the Property Relates to the date on which the RCTC presents the owner ofthe property, or their designated representative, a written offer for the property or rights to be acquired. When non-resident owners are Anvolved :who cannot be contacted in person, initiation of negotiations for the property, shall be the date such owner or his designated representative received the first communication by mail or telephone from the RCTC in which a monetary offer to purchase is made. When property owners are expected to donate right :of way, they will, not be presented a written offer. Under this circumstance, the ;date that they are invited to execute .the "conveyance deed" will be accepted as -the initiation of negotiations for the property. When relocatees are provided a "Notice of Intent to Acquire" the initiation of negotiations will be the earlier of (1) the date they move from the property, or (2) the date the property owners, or their representatives are presented a written offer for their property. Dwelling The place ,of permanent or customary residence. It includes a single family house, a one -family unit in a multi=family 'building, a unit in a condominium or cooperative housing project,""or any other residential unit, including a mobile home. Dwelling site: The term dwelling site means a' land area that is typical in. size for similar dwelling Located in'the same neighborhood or rural areas. . Comparable ° Replacement Dwelling One which is: Decent, safe ` and sanitary (DS & S) as defined in 'the following subsection j. 2. Functionally equivalent to the displacement dwelling, ,Aprovidees, the same utility, capable of contributing :to a comparablestyle of living and -15- 107 adequate in size to accommodate the. occupants. While it need not possess every feature of the displacement dwelling, the principal features must be present. . 3. In an area that is not subject to unreasonable adverse environmental conditions, is not generally less desirable than the location of the displaced person's dwelling with respect to . public utilities and commercial public facilities, and is reasonably accessible to the person's place of employment. 4. On a site that is typical in size for residential development with normal site improvements including customary landscaping. 5. Within the financial means of the displaced person. This phrase is defined as follows: 180-Day Owners - A replacement dwelling will be within the relocatee's financial means if they are paid a properly computed replacement housing payment, a correct increasedinterest payment and all authorized incidental closing costs. Tenants - A replacement rental dwelling will be within the relocatee's financial means if they are paid a o ,pr_ perl y computed rent supplement payment. 6. Currently available to the displaced person on the private market unless the relocatee is receiving assistance under a Government Housing Program before displacement, in which case, a comparable replacement dwelling may reflect similar governmental housing assistance:- (Public housing. can be offered_ to thosebeing displaced from non-public housing if they are advised in writing of their right to non-public housing and do not object). NOTE: If replacement dwellings meeting the above requirements are not available on the market, dwellings which exceed those requirements may be treated as comparable replacement housing. Decent, Safe and Sanitary Dwelling (" DS & S") — 49CFR 24 Means a dwelling which meets applicable housing and occupancy codes. However, if any of the following standards are not met by ;an applicable code, the following standards shall apply, (unless waived for good causes by the Federal Highway Administration and the Federal Transit Administration.) The dwelling shall: 1. Be structurally sound, weather tight and in good repair. -16- 108 2. Contain a safe electrical wiring system adequate for lighting and other electrical devices. 3. Contain a heating system capable of sustaining a healthful temperature (of approximately 70 degrees) for a displaced person, . except in those areas where local climatic conditions do not require such a system. 4. Be adequate in size with respect to the number of rooms and area of living space :needed to accommodate the displaced person. There shall be a separate, well lighted and ventilated bathroom that provides privacy to the user and contains a sink, bathtub or shower stall, a'nd a toilet, !all in good ,working order and . properly connected to appropriate sources of water,and to a sewage drainage system. In the case' of a housekeeping dwelling, there shall be a kitchen area that contains a fully usable sink, property connected to potable hot and cold water and to a sewage drainage system, and adequate space and utility service connections: for an oven and refrigerator. 5. Contains unobstructed egress to safe, open space at ground level. if the replacement dwelling unit is on the second floor or above, with access :directly from or through a common corridor, the common corridor must have at least two means of egress. (Flexibility inthe new regulations will permit DS & S approval of upstairs apartments, and ` sleeping : rooms located on the second .floor of; norma two-story. residential dwellings served by one stairway). 6. For a disabled displacee, be free of any barriers which would preclude reasonable_ ingress, egress or use of the -dwelling.- Business..(49CFR) Means any lawful activity, except farm operations, conducted primarily: for, the purchase, 'sale, lease, and/or' rental of personal.: and/or real property, and for the manufacture, processing and/or marketing of products, commodities or any other personal_ property, or 2. `for the sale of services to the public, or 3. outdoor advertising display purposes, when the display must be rnoved as.:a result of a. project, or `4. by a- non-profit organization that has established its: non-profit status under applicable federal or state law. Small :Business .(49CFR) A business 'having: not snore than 500 employees, working at the site being acquired or displaced by a program or project, which site is' the location of economic activity. Sites occupied solely by .outdoor advertising signs, displays, or devices do not qualify as a business for purposes of reestablishment expense. Non -Profit Organization (49CFR) -17- 109 An organization that is incorporated under the applicable laws of the State of state as a non-profit organization and exempt from paying federal income taxes under Section 501 of the Internal Revenue Code. o. Farm Operations (49CFR) P. Any activity conducted solely or primarily for the production of one or more agricultural products or commodities, including timber, for sale or home use and customarily producing such products or commodities in sufficient quantity to be capable of contributing materially to the operator's support. Contributes Materially (49CFR) Means that during the two taxable years prior to the taxable year in which displacement occurs, a business or farm operation: 1. had average annual gross receipt of at least $5,000, or 2. had average annual net earnings of at least $1,000, or 3. contributed at least 33 1 /3 percent of the owner's average annual gross income from all sources. NOTE: It is permissible, with prior approval from the Right of Way Program Manager, to use a different period if it will :be more equitable to the displacee (in :lieu of using the two prior taxable years) If the business has not been in operation, or has not been operated by the current owner-relocatee, for the entire two taxable year period, base the computation on the actual period of the owner-relocatee's operation projected to annual rate. (To compute: determine the total gross receipts, net earnings, or gross income, whichever -.is applicable, during .the actual period of the owner-relocatee's operation; divide the figure by the number of months of operation; multiply by 12 to determine the annual average. A loss for any year should be counted as "0" when averaging, not a negative number). Owner (49CFR) Means an individual(s) who: 1 owns, legally or equitably, the fee simple estate, a life estate, a 99 year lease (regardless of the length of the unexpired term) or other proprietary interest in property. Holders of long-term leases, but less than 99-year leases, shall also be considered owners if the unexpired term (including options for extension) after the date of acquisition of the subject parcel totals 50 years or more, or 2. is the contract purchaser of any of the foregoingestate or interests, or 1g_ 110 3. has succeeded to any of the foregoing interest by devise, bequest, inheritance or operation of law. In the event of acquisition of ownershipb an of the foregoing methods, the tenure of ownershi :YY P (not occupancy) of the succeeding owner shall include 'the tenure of the preceding owner, or 4. owns an interest in a cooperative housing project which includes the right to occupy a dwelling, or 5. anyother interest, including leases with 'less than 50 years unexpired term, which in the judgment of the RCTC warrants : consideration as . ownership. Any such consideration must follow the procedure of the RCTC Relocation Appeal Process (as discussed further in this chapter). The owner, -as defined in this subsection,of a residential :dwelling who has . owned and occupied the dwelling for; at least ; 180 consecutive: days immediately prior to the initiation ;of negotiations for the subject dwelling is more commonly referred;, to as a "long- term owner One who obtained ownership of a residential property being acquired .by the RCTC at least 90 days, but less than 180 days, immediately prior;to he -initiation of negotiations for the subject property. To be eligible for relocation benefits (replacement housing :payment),.;=except ,°residential moving costs and advisory services, the short-term owner must also have occupied the dwelling unit for at least 90 days immediately ,prior to the :initiation of negotiations for the subject property, unless this creates a financial hardship and the owner would fall into Last Resort Housing and would be eligible for a replacement housing payment.. Conventional Loan Any : loan` not guaranteed or directly provided by a governmental agency, or not guaranteed through private purchase of loan insurance, e.g, mortgage guarantee; insurance, is considered to be a conventional loan.:: Replacement Housing Payment A purchase price differential relates to those payments available to qualified ilong-term owner=occupants (at least 180 days) to assist in the purchase of replacement 'housing, computed as the difference between the .amount paid to them by the department for their residential property 'and. (1) the amount necessary to purchase the most nearly comparable DS ,& S replacement housing available, or (2) .the: amount actually paid for a DS & =S replacement, whichever is less. > A replacement . housing payment may also include a mortgage interest differential paymentarid 'an incidental expense payment. -19- 111 u. Subject Property, Subject Parcel, Subject Dwelling, Displacement Property • When the word "subject" or "displacement property" is used to identify a property, a parcel or a dwelling, it always relates to the property, parcel or dwelling which is being acquired or affected by the RCTC- and is always the property, parcel or dwelling from which a relocatee is being either partially or totally displaced. Replacement Property The property being purchased or rented by the relocatee to replace the "subject property, parcel or dwelling". Date of Taking Refers to the date the subject property is acquired by'RCTC. Tenant A person who has the temporary use and legal occupancy of real property owned by another. Last Resort Housing Program A procedure under which the RCTC can construct, purchase, rehabilitate or otherwise provide dwellings as replacement housing units for displacees when available replacement dwellings cannot be found or when the computed payment exceeds the maximum amount that is normally paid under the Relocation Assistance Program. Rental Subsidy Payment Relates to the payment available to displaced residential occupants to cover additional rental costs they will experience in renting comparable replacement housing during the 42-month_ periodfollowing their displacement. It is synonymous with the terms "Rental Differential Payment" and "Rent Supplement". aa. Utility Cost Expenses for heat, light, water, sewer and trash collection. bb. Uniform Act An abbreviated title for the Federal Uniform Relocation Assistance and Real Property Acquisition Act of 1970, as amended. -20- 112 cc. Acquired The term "acquired" as used in this manual means the time the property_ owner, his agent or representative receives payment from the RCTC for the property and/or rights being purchased; or if condemnation is involved, at the time of the amount of probable just compensation is depositedinto he court. 7-1.8 Interest Acquired . The e of ;interest acquired b the RCTC does: not affect the . eligibility for type q . y 9 Y relocation assistance payments provided the interest: acquired is sufficient to cause the displacement. 7-1.9 Ownership, -Qualifications General Ownership Requirements In some instances, occupants must have owned the subject" property for specific time periods to be eligible for certain types of relocation` payments:. In- other. instances, payment eligibility requirements also; specify qtat relocatees must purchase and occupy DS.& S replacement: housing within . a specific time after they are required to move from the property being acquired by RCTC. To be considered an owner of the property :'being acquired" or- of a replacement property entitled to relocation benefits, the _relocates must either. ownthefee simple title to the property, 'hold life estate :or possess certain leasehold rights as discussed in subsection8-1.6 .p., :'above.. Contract to Purchase - Subject Rightof Way Parcel Relocatees who are in the process of purchasing the property from ':which - they are being displaced under a contract to purchase which legally binds both: parties to an agreement that calls for the subsequent transfer of title `to the relocatee, is considered qualified if the contract has'been in effect for the required ownership time period. Contract to Purchase — Replacement Parcel A, relocatee who purchases a DS , & S replacement property under' a contract to purchase's which legally] binds both ,parties, as outlined in the preceding` paragraph, within the required tirne period, is ,considered to: have met replacement housing ownership eligibility requires ents. Ins not necessary for title Ito have actually passed to the relocatee under the procedure discussed in the preceding paragraphs b. -and`:c. so long as a binding purchase ,contract is in effect. Contracts to .purchase, which . -21 - 113 involve replacement properties, must be properly recorded in the office of the Recorder of Deeds before claims for relocation payments can be processed for payment if the purchase of a replacement property is an eligibility requirement for the type of payment involved unless a written waiver of the recording requirement has been granted in writing by the RCTC. (Requests for such waivers must explain whythereis an 'objection to recording the contract and must be accompanied by a copy of the contract). In every case, when doubt exists concerning the legality or terms of a particular purchase contract, submit a, copy thereof to the ROW Section for final determination. d. Owner's Acquisition by Devise, Bequest, Inheritance or Operation of Law Relocatees who acquire a property that is scheduled for right of way acquisition by devise, bequest, inheritance or operation of law are considered to have met the ownership time eligibility requirements (but not necessarily the occupancy requirements-180 day owner and occupied) if the time they have owned the property since acquiring it plus the time it was owned by the person or persons from whom they acquired it totals the required time period. This policy applies even though the relocatees "inherited" the subject property after the initiation of negotiations for the property. It also applies if the inheritance occurred after the original owners signed the Deed -_conve in the- subject _property to . the.._.RCTC or after the ,property was . conveying = the_ 1. P p rtY. condemned but the'-probablejust compensation has not been deposited and as a consequence, title had not passed to the ROTC. e. Part Owners, Partnerships, Estate Members, Subject Right of Way Parcel If .a .dwelling ,.:acquired. by the RCTC. is. ;partially owned;; bythose who: occupy it and partially owned by other parties who are not in occupancy, those in occupancy shall be eligible, if qualified, for relocation payments as owner -occupants. Estates are not eligible for replacement housing ,payments (purchase price differential, incidental closing costs, increased interest payments, rental subsidy payments or down payment assistance) but are entitled, when qualified, to moving cost payments. It is not necessary that the "other party" who owned an interest in the subject, but did not occupy it, also purchase an interest in the replacement. The name of the "other party" should not be included as payee on the replacement housing check. Part Owners and Partnerships — Replacement Property 22 - 114 Those displaced by an RCTC taking can normally qualify for appropriate relocation payments if they purchase a DS & S replacement in partnership with other parties; however, the amount of such payments will normally be affected due to the fact that the relocatee does not purchase full ownership in the replacement. (A payment can be calculated using a "carve -out" of the displacee's portion of the replacement unit.) Relocatees who qualify as owners due to having life estate in the subject or by holding a long-term lease thereon can normally qualify for relocation payments, if they acquire at least the same interest in the replacement as they held in the subject property. Properties Involved in Foreclosure If a relocatee is 'beingdisplaced from_a property that is in the process of being foreclosed: but are still occupying the subject property, they will be entitled 'to relocation benefits they qualify for; if the property has been foreclosed and the former owner is renting the subject property :or are in possession on the basis of an extension of possession,they will be treated as tenants. 7 1. 10 Availability of'C,omparable Replacement Dwelling Prior to Displacement — 49CFR Residential relocatees shall not be required to vacate their dwellings unless at least one comparable replacement dwelling (preferably three has been made p p 9 (P y ) available to them. A comparable replacement dwelling will be considered to have been made if: The relocatee is informed of its location.:.: The relocatee has sufficient time to negotiate .and enterinto a purchase agreement or .lease for the replacement dwelling or for other comparable housing (relocatees must not be required to- move from their, displacement dwelling ,until at -.least 90 days after they are advised in writing of the amount of their relocation housing payment offer :to assure.;that they have sufficient time to negotiate for a comparable replacement dwelling. The relocatees are assured of receiving the relocation assistance to which they are entitled in sufficient timeto complete the purchase or lease' of a replacement,; dwelling unit. Residential relocatees cannot normally beevicted froman acquired dwelling unless a comparable replacement -dwelling unit is currently available 'and financially feasible. If two or more families occupy the same single-family dwelling unit, the RCTC will first attempt to locate a :replacement unit that is ;comparable to the subject unit which will enable the families to relocate together; however, if such comparable is not available, RCTC's obligation to provide comparable replacement .'housing will : bemet if a separate DS & S . -23- 115 replacement unit is made available to each family which provides functional comparability to the space and utility they enjoyed. 7-1.11 Eviction for Cause Eviction for cause must conform to applicable state and local law. Any person who occupies the real property and is in lawful occupancy on the date of the initiation of negotiations, is presumed to be entitled to relocation payments and other assistance, unless the RCTC determines that: a. the person received an eviction notice prior to the initiation of negotiations and as a result of that notice is later evicted, or b. the person is evicted after the initiation of negotiations for serious or repeated violation of material term(s) of the lease or occupancy agreement, (a person evicted for reasons related to non-compliance with requirements related to carrying out a project;. (e.g., failure to move or relocate when instructed or to cooperate in the relocation process) does not lose relocation eligibility) AND c. in either case, :the eviction was not undertaken for the purpose of evading the obligation to make available the payments and other assistance they would otherwise be entitled to: For purposes of determining eligibility for relocation payments, the date of displacement is the date the person moves, or if later, the date a comparable replacement dwelling is. made _:available. This subsection applies only to persons who would otherwise have been displaced by the project: ;. 7-1.12 Incompetent Owner or Occupant If an owner and/or occupant has been legally declared to be incompetent, the Relocation. Program should be explained to the legal guardian. Guardians will normally have authority to execute documents for the ward, accept possession notices and handle details related to their ward's displacement. if any complications are encountered, provide all facts to the ROW Program Manager and request specific instructions. The ROW Program Manager should seek assistance from the RCTC Legal Counsel in handling cases of this nature. 7-1.13 Relocatee Dies During Displacement Period a. Relocatee Dies Prior to Occupying Replacement Housing The following instructions apply when relocatees who are eligible for replacement housing payments (either rental subsidy payments, down payment assistance payments, or purchase price differential payments) or moving costs die before they actually occupy a replacement dwelling: 1. If the deceased is the head of a household or the member of a displaced family, the relocation payment would not be affected. - 24 116 2. If the deceased was the only occupant of the unit acquired by the RCTC, the payment would be forfeited as he would never occupy the replacement dwelling. (Any portion of a relocation housing payment necessary to satisfy the legal obligation of anestatein connection with the selection of a replacement dwelling by or on 'behalf. of a deceased person shall be disbursed to the estate). Claims Executed Prior to Relocatee's Death The unpaid relocation claim of an eligible deceased : relocatee that has been signed and executed prior to his death should be _processed for payment in the routine manner. The check should be forwarded : to the .administrator of the ;relocatee's estate together with an explanation of the relocation payment involved. If an estate has not been opened and/or an administrator has not been appointed, present. the -; facts' to the ROW Program Manager and ask for specific instructions. The :ROW Program Manager:should :seek legal advice in handling cases of this 'nature. Claims Not Executed Prior to Relocatee's 'Death If a head of household dies after qualifying for a relocation payment, but before executing his claim, it is permissible to accept, process and ;pay a: claim executed by the administrator to his estate. The check will be delivered .to the administrator. 'If the head of household dies prior to fling a- claim that qualifies for payment and an estate has not been opened, or an administrator has not been appointed, present the facts to the ROW Program, manager and request instructions concerning execution of .the claim and ';delivery of the check. 7-1.14 Rest 'Home and Nursing Horne Patients The ;term "rest home as used herein also applies to nursing homes, convalescent homes and other similar establishments. In applying the -following policy, it will be necessary to determine whether a subject rest home resident is a temporary or permanent occupant of the rest home. A temporary 'resident is one who is in the ` rest home during an illness, convalescence or illness recovery period, and is currently maintaining permanent residence .elsewhere, which he intends to re -occupy when physically able ;to do so. A permanent resident is.one who has made the rest home his permanent place of residence, is not maintaining a residence elsewhere, and has .no plans, to leave the rest home at -a later date. -25- 117 In case of doubt or conflict in determining whether a displacee is a temporary or permanent resident or a rest home, the ROW Section should seek advice from the RCTC Legal Counsel. a. Moving cost — Rest Home Displaced b. When a displaced rest home operation is moved by its owner and reestablished in a new location, the individual residents involved (both temporary and :permanent) will not be entitled to relocation payments if the cost of moving them from the existing rest home to the replacement is borne by the rest home owner. (The rest home owner will be reimbursed for such moving costs as part of the usual business moving cost payment). If permanent residents are forced to move to a new location at their own expense, and are not moved by the rest home owner as part of his business. move, they shall be entitled to residential moving cost payment based either on actual costs, or on the fixed payment schedule, as the occupant of a furnished sleeping room. If temporary residents are forced to move to a new Location at their own expense, they shall be entitled to a moving cost payment which also applies when the .temporary residents return to their original permanent residence.. Rental Subsidy Payments — Rest Home Displaced Rental. subsidy payment are not available to temporary rest home: residents who maintain permanent and legal residence elsewhere. A permanent rest home patron, who is displaced due to the RCTC's acquisition of the rest home will not be entitled to rental subsidy payment, if the subject rest home is relocated, remains in operation, and is available to the resident after is it relocated unless the existing rental fee is actually increased as a result of the move. If the displaced rest home does not relocate and does not continue in operation after displacement, and the permanent resident will be forced to relocate to a different rest home, they will normally be entitled to a rental subsidy payment computed as follows: 1. Determine the portion of the total monthly rental fee being paid by the relocatee prior to displacement that is chargeable to basic "room rent" which normally includes utilities. It will be necessary to "carve out" and separate the basic room rent payment from nursing services, food, and other services . paid for in the overall monthly payment. (rest home - 26 1 1 8 records may establish these figures, if not, the determination must be made and documented by an appraiser). 2. Locate the most nearly comparable replacement rest home available to the relocatee and determine the portion of the total monthly rental fee charged for the replacement that is chargeable to basic room rent 3. Compute the rental subsidy payment in the same manner based on the difference between the "basic room" rental: fees. charged by the displaced rest home and the replacement rest home,or on the difference actually paid by the relocatee, whichever : is less. To determine if the:30% rule applies, each case will, have to be discussed with the ROW Program Manager individually! If the payment computation procedure . discussed in this subsection creates an undue hardship on a relocatee, the ROW Program Manager Should formulate a Solution to alleviate such hardship. Moving Costs Rest. Home Residents' Property Acquired by the ROTC If a residential, business or farm property is acquired by the RCTC while its owner or tenant is residingin a rest home (either ,,temporary or permanent), such owner or tenant is entitled to applicable moving cost :payment. "Residential" Relocation Payments — Rest Horne Residents' Property ;Acquired- by RCTC_ Temporary rest home residents who maintain permanent residence elsewhere that are being acquired by RCTC, are entitled to any relocation payment they are eligible to receive and the fact that they are temporarily residing in a rest home has no effect on such eligibility. !Permanent rest home residents may own residential property occupied by others, or unoccupied. If they do, they are entitled to actual cost moving payments. If a relocatee, who is displaced from a conventional dwelling unit, or from a mobile home, moves to and becomes a permanent resident of a rest home, they can qualify for a rental subsidy payrnent, ,if eligible, provided . that such' rest home meets DS & S standards. in determining the amount actually paid by the: relocatee for their. "replacement unit consider the "basic room ;fee If the relocatee moves to a. ;rest home .as a temporary basis after displacement, provide all facts to the ROW Program Manager and request instructions before making commitments to the :relocatee.:; 7-1.15 Displaced Students Moving Costs -27- 119 Students who are displaced from "temporaryhousing, usually furnished rooms they occupy during the school year (those who return to their permanent homes during summer and other vacations), are entitled to moving cost payments, either fixed payment or actual costs, if their displacement occurs during the school year and they, of necessity, move to other temporary housing. If the displacement occurs at the end of the school year, or during summer vacation, students who merely <return to their permanent homes shall, if otherwise eligible, be entitled to a moving cost payment. Students who .occupy housing on a ".year-round" basis, shall be entitled to the same moving cost payments as any other displaced tenant. Rental Subsidy and Down Payment Assistance Students occupying housing on a temporary basis during the school year, as discussed in the preceding subsection, and have permanent homes elsewhere, are not entitled to either rental subsidy or down payment assistance. Students who occupy housing on a full-time "year round" basis, and establish: such housing as their permanent and legal residence, shall be entitled to the same relocation payments as any other displaced tenant. 7-1.16 Losses Due to Negligence Losses -due to 'negligence on the part of the relocatee, his agent or employees are not eligible for reimbursement under the Relocation Program. 7-1.17 Relocatee's Refusal of Assistance There is no provision for the RCTC..to- authorize_relocatees to waive their right to claim relocation payment to which they are entitled to receive; unless the acquisition of the property qualifies as a "voluntary acquisition". This would be the only circumstance under which an agreement could be made with any relocatee in which they waive their right to claim such payments. In the same manner, a relocatee could- not be forced to sign and submit a relocation payment claim if he elects not do so. In any circumstance when a displace does not accept a relocation payment there must be clear evidence in the file that the _person was fully informed of all of their potential benefits, including probable dollar amounts. 7-1.18 Rental of RCTC-Owned Property a. Renters After Acquisition Not Eligible for Relocation 'Payments Persons who rent ,property from the RCTC after it has been acquired and vacated are not eligibleifor relocation payments. -28- 120 b. Only decent, safe and sanitary units owned by the RCTC will be available for rent (except when an Extension of Possession Agreement is used.) Improved parcels owned by the RCTC that do not meet DS & S standards must not be rented for residential purposes. Computation of Rental Rates to be Charged, by the RCTC Rental rates to be established as discussed in the Property Management chapter of this Manual. Occupant Rents Subject Property After Acquisition If eligible relocatees of a property acquired by the RCTC desire to rent it :after the '90 day possession period has expired, they ,can do : so, if the 'construction .schedule permits, without jeopardizing or changing their ,'eligibility for relocation payments. This will normally be. accomplished under an Extension of Possession Agreement. Effect on Residential Moving Cost Payments When residential property is rented back to the occupant by the ROTC, the residential moving cost payment will .be made -after the move is completed. The payment will be based on the amount ,of personal property actually moved, unless- it. is .obvious:that the quantity of personal property was substantially increased after the property was rented to the relocatee by the RCTC. If a substantial increase is noted, an adjustment will be made in the moving cost payment to eliminate payment for the items added after the property was acquired by the RCTC.. If fixed-rate moving ,:cost schedule: is used, -the payment amount will be based on the number of furnished rooms occupied by .the relocatee at the time the property was acquired by the RCTC. 2. Effect on Business; -Farm and Non-profit Organization The rentingof business, farm or non-profit property, could create serious problems in administering the Relocation Assistance and Payment Program. For this reason,; the RCTC should ,try to avoid renting back to businesses, farms or non-profit organizations. 3. Effect on Replacement Housing Payments The replacement housing payment offer that isineffect at the end of : the 90-day possession period may be adjusted if; :the comparables offered are more than 90 days old from when they eventually purchase and occupy a DS & S replacement dwelling.: A replacement housing claim cannot be processed: or paid until the -29- 121 relocates has actually fulfilled all requirements necessary to qualify for this payment, unless a hardship advance is required. The relocatee must be served notice to vacate. (at the time the property is needed for construction) under the terms specified in the Extension of Possession Agreement, which will normally be 30 days written notice. 4. Effect on Rental Subsidy Payments Tenants, who occupy a dwelling unit being acquired by the RCTC, who are eligible for a rental subsidy payment, can rent the subject parcel after it has been acquiredby the RCTC without jeopardizing or changing his eligibility for the subsidy payment. The rental subsidy payment offer that is in effect at the end of the. 90-day possession period may be adjusted if the comparables offered are more than 90 days old from when they eventually move to a DS & S replacement rental unit. The rental subsidy claim cannot be paid until the tenant actually vacates the subject property, moves to a DS & S replacement dwelling and otherwise qualifies for the payment,- unless a: hardship advance is required. The =tenant must be served with a 90=day written notice to -vacate before the RCTC takes possession of the property under the terms specified in the Extensions of Possession Agreement. A 30-day Notice to Vacate will be sent to the tenant 60 days after the 90-day Notice to Vacate is issued. 5. Effect on Down Payment Assistance Eligibility for down payment assistance is not affected if the relocatee rents the subject property after it has been acquired by the RCTC. 6. Effect on Incidental Closing cost Payments Rentals of this type will have no effect on incidental closing cost payments. 7. Effect on Increased Interest Payments Rental of the subject property back to its former occupant has no effect on this type of relocation payment. The payment will be 30. 122 made to qualified owners when they meet all eligibility requirements: -1.19 Delivery of Relocation 'Payment Checks All checks 'issued under the Relocation Assistance Program are to be mailed to thedesignated recipient :by certified mail. A letter of transmittal setting out the check number,. amount- and type of payment (e.9• moving.cost, replacement housing, etc.) should .accompany the check. Attach the certified return receipt to the file copy of the transmittal letter and retain both in the original parcel file. Itis also perrnissible to deliver relocation checks to responsible parties other than the relocatee to whom such checks are made payable provided, that' the relocatee specifically and clearly requests such action in writing: Relocation _ payment checks must be made payable to the subject . property's . relocatees except_as authorized herein (administrators of estate, guardians) and when moving cost payment checks can be made payable directly to moving companies; under certain specific terms discussed hereafter. 7-1.20 "Rounding" of Claim Amounts Relocation claims based on actual costs must not be rounded. Claims basedoncomputed amounts (judgments, not actual=costsycan beround to the ` nearest dollar. Only the "total amount due can be so" rounded, -the- , component parts of a claim must be set out in their exact amounts'. 1.21 Duplicate Payments. Joint:Acquisition by.Two GovernmentalAgencies Under no circumstances can a relocatee be paid duplicate relocation payments, covering the same displacement, by two different governmental acquisition agencies ;which are both subject to the "Uniform Act" or, which have any other relocation payment program which accomplished the same purpose Relocatee is an Employee of a Private :Company =If the relocateeis an employee of a private company: who is °being transferred by the; employer is in occupancy of a parcel being acquired :by the. RCTC at the initiation of negotiations for such parcel, or upon receipt of a Notice of Intent To Acquire, the RCTC will pay all relocation payments such relocatee is qualified to receive regardless of any transfer payments. made to him by his employer and regardless of when the transfer .was - initiated. -31- 123 When this situation is encountered, the Relocation Agent should advise the employer by letter of the relocation payments being made to the employee (relocatee) and thereby provide an opportunity for the employer to avoid duplication of payment, if they so desire. 7-1.22 Retention of Files, Records and Reports a. Federal Regulation (49 CFR 24.9(a)) — Record Keeping "The Agency shall maintain adequate records of its acquisition and displacement activities in sufficient detail :to demonstrate compliance with this part. These records shall be retained for a least 3 years after each owner of a property and each person displaced from the property receives final payment to which he or she is entitled under this part, or in accordance with the applicable regulations of the Federal funding agency, whichever is later." b. Federal Regulation (49 CFR 24.9(b)) — Confidentiality of Records,. "Records maintained by an Agency in accordance with this part are confidential regarding their use as public information, unless applicable law provides otherwise." c. Federal Regulation (49 CFR 24.9.(c)) Reports "The Agency_ shall submit a report :of, its; real property acquisitionand displacement activities under this part -if required by the Federal agency funding the project. A report will not be required more frequently than every 3 years, or as the Uniform Act provides, unless Federal funding agency shows good cause. The report shall be .prepared and submitted in the format contained in Appendix B of this part." Relocation Case Files The ROW Section shall maintain a case file for each person who meets the definition of displaced person or persons not displaced. The case file shall contain the Relocation Agent's Log or Diary, Correspondence to and from the displacee or pertaining to the displacement, and copies of claim forms and supporting documents. e. Relocation Log or Diary The Relocation Agent shall maintain a complete and legible log that will contain, at least, the following entries: 1. Date case was assigned to the Relocation Agent 2. Date, Status and pending required action when transferred from Agent to Agent 32 - 124 3. Date and place of each personal contact; list of persons present and particulars of the discussion 4. Date and particulars of all significant phone calls: 5. Date of Relocation AssistanceProgram being delivered or rnailed, including statement that relocation program was explained and assistance offered 6. Amounts of relocation payments offered. Copies of 'benefit letters delivered or mailed 7. Claimant's' response to offer of assistance and relocation intentions known 8. Date claim forms were delivered and kinds and amounts of payments involved '9. Date payment amounts received; if revised, date claimant was advised ofchange in entitlement and amounts involved 10. An entry to the effect that replacement housing and the replacement housing valuation was current as of date of. vacation .,::'Case file will contain written backup that valuation is current 11. Addresses and prices of replacement properties offered to displacee and methods used to transmit information 12. Dates correspondence or documents were received or transmitted 13. Delivery dates of official notices, such as 90=Day Notice 14. Entry when a moving claim is processed indicating circumstances of vacation, e.g., voluntary self -relocation, eviction, subject to 90 or 30 Day Notice, advisory assistance used . ROW _Program :,Manager sign -off for closed files. 7-1.23 Withholding of Relocation Payments It is permissible to deduct any rent that a displacee owes. the RCTC :from relocation :payments, provided that such deductionwill not prevent the displacee from obtaining :comparable DS & S replacement housing, 7-1.24 Manner of Notices The following notices must be in writing and personally served or sent .by certified or registered first-class mail with,return receipt requested. Parcel files must be documented to show that the notices are provided in the prescribed manner: (Persons who are unable to' read and/or understand the notices must be provided with appropriate translation and counseling). The notices required by Federal Regulation are: a. General Information Notice (Relocation Brochure) b. Notice of Relocation Eligibility (Relocation Payment Offer:) c. Vacancy Notices. Additional noticesdeveloped under RCTC procedures are discussed sections of this Manual. -33- 125 in various 7-1.25 Relocation Program on Projects Affected by a Major Disaster Individuals and .families whose homes have been damaged or destroyed by a major disaster and who have not been able to re -occupy their homes by the initiation of negotiations for the subject property can be considered to be in constructive occupancy provided: a. that the area has been declared as a major disaster area by the President; or b. the Federal Highway Administration has determined that constructive occupancy is acceptable under the circumstances. (when a situation of this nature is encountered, provide facts to the ROW Program manager prior to making eligibility commitments to the relocatee). The following policy guidance is applicable when an eligible tong -term owner - occupant is involved: The replacement housing payment will be based on the difference between the amount the RCTC pays for the subject property in its damaged condition and the confirmed price of the most nearly comparable replacement property available (comparable to the subject before the disaster) or the difference between the RCTC's payment and the amount that the relocatee actually pays for a DS & S replacement, whichever is lesser, minus any proceeds received by the relocatee as payment. for damage to his residence as a result .of the disaster from. insurance companies and/or from any other source. NOTE: Procedural Instructions will be issued by the ROW Program Manager in consultation with RCTC's Legal Counsel when tenants, short-term owners, businesses, farm operations or non-profit organizations are involved in a major disaster. Also. Instructions for computing relocation payments will be issued when a relocatee experiences disaster which damages or destroys his 'home or business after the initiation of negotiations for the subject parcel. 7-1.26 Notice of Intent To Acquire It is the policy of RCTC not to issue Notices of Intent To Acquire (whether verbal or in writing) except when authorized in writing by the ROW Program Manager. The exception applies only when it is obviously in the RCTC's best interest to do so or when a relocatee will suffer serious personal or financial hardship if such action is not taken. Notices of Intent to Acquire are not available to the owners of businesses, farms and non-profit organizations. To avoid bad public relations with landlords, such notices should not be given to tenants unless they initiate the action and made a request in writing to the RCTC. - 34 126 7-1.27 Administrative Responsibility The ROW Program Manager has the primary responsibility for implementing the Relocation Assistance Program on al RCTC projects. . The ROW Program Manager shall designate, at least, one member of the ROW Staff whose primary assignment is to carry out the Relocation Assistance Program on projects that involve relocation assistance. -35- 127 Section 7-2 7-2.1 General CHAPTER VII RELOCATION ASSISTANCE Relocation Assistance Advisory Service The Relocation Assistance Program can be divided into two functions (a) relocation payments, and (b) advisory services and assistance to those being displaced. The term "advisory services" relates to advice and assistance only. 7-2.2 Purpose To establish a Relocation Assistance Advisory Services Program which will enable relocation personnel to provide meaningful assistance to those being displaced regardless of race, color, religion, sex, age, special assistance, physical disability or national origin. The services discussed in this section must be provided by personal contact, if reasonably possible. If personal contact cannot be made, :the Relocation Agent must document the file to show that reasonable efforts were made to make personal contact with displacees. 7-2.3 _. Eligibility. For Advisory Service. Relocation assistance advisory services must be offered to: a. any "displaced person as defined in subsection 8-1.6.c of this Manual; b. any person occupying property immediately adjacent to the real property being acquired when suchperson(s) are_ caused : substantial; economic injury as a result of the acquisition; c any person who moves from their residential unit, which is not located in the taking,, due to reasonable necessity, because of the acquisition of their business or farm operation; and d. any person who moves personal property from real property not located within the taking, due to reasonable necessity, as a result of the acquisition of their business or farm operation. 7-2.4. Advisory Service Requirements .The RCTC's Relocation. Assistance Advisory Service Program must include such measures, facilities or services as may be necessary or appropriate to: a. discuss and explain the service available, relocation payments and the eligibility requirements therefor and assist in completing any applications or other forms required, b. determine the need, if any, of displaced persons, for relocation assistance, -36- 128 c. provide current and continuing information on the availability, prices .and rentals of comparable DS & S housing, and of comparable commercial properties and locations for displaced businesses, d a person displaced from the business or farm operation in obtaining and becoming established in a suitable replacement location, when appropriate, supply information concerning federal and - state housing programs, disaster loan programs, and other federal and state programs offering assistance to displaced persons, f. advise displaced persons that no payments received under the Uniform Act shall be considered as income for the purpose of the IRS Code or for the ,:purpose determining the eligibility or the extent of eligibility .of any person for assistance under the Social Security Act or any other federal law; and g. provide other advisory services to displaced persons in order: to minimize hardships to such ;persons in adjusting to a new location. Advisory servicesshall be administered on a reasonable basis :commensurate with the relocatees' needs. This could vary from (a) minimum ,assistance when relocatees are well informed, mentally, physically and financially able to manage their displacement (or overcome their economic injury and who, as a consequence, neither need or desire RCTC assistance) to (b) almost unirnited advisory services and assistance for those who are elderly, disabled or otherwise unable _ to cope with their displacement or economic injury problems. :;All relocatees, especially the elderly and handicapped, shall be offered transportation to inspect -housing to which they are referred.: Whenever possible, minority persons shall be given reasonable opportunities to relocate to DS & S replacement dwellings, not located in an area of minority concentration, that are within their financial means. This policy, .however, does not require the RCTC to provide such relocatees a larger payment . than is necessary',to enable them to relocate to a -:comparable replacement -dwelling., -37- 129 CHAPTER VII RELOCATION ASSISTANCE Section 7-3 Appeals 7-3.1 General (49 CFR 24.10(a) "The Agency shall promptly review appeals in accordance with the requirements of applicable law and this part." The right of appeal shall be described in all Relocation Brochures that are distributed at public hearings or to individual displacees. The right of appeal shall , be stated in all relocation notices and also be mentioned whenever verbal presentations on relocation assistance are made at public hearings. On relocation calls, the Relocation Agent shall explain how to make an appeal and give the following information to displacees: a. displacee has the right to appear personally at all hearings, b right of appeal relates only to the Relocation Assistance Program and not to the market value of the property or to the terms of the Real Estate Purchase Contract, c. an appeal decision will be issued in writing within 60 days of reviewing all material necessary to render an opinion, d. Relocation Assistance Appeal Form will be provided to displacee upon request, but any_form is acceptable. e. Displacee has the right to pursue legal action after completing the appeal process. 7-3.2 Appealable Actions (49 CFR 24.10(b)) "An aggrieved person may file a written appeal with the Agency in any case in which the person believes that the Agency has failed to properly consider the person's application for assistance under this part. Such assistance may include, but is not limited to, the person's eligibility for, or the amount of, a payment required under Section 24.106 or Section 24.107, or a relocation payment required under this part. The Agency shall consider a written appeal regardless of form." The replacement housing valuation shall be reviewed whenever a displacee appeals the amount of the replacement valuation. 7-3.3 Time Limit (49 CFR 24.10(c)) - 38 - 130 "The Agency may set a reasonable time limit for a person to file an appeal. The . time limit shall not :be less than 60 days after the person receives written notification of the Agency's determination on the person's claim." The RCTC must receive the appeal no later than three (3) months following the deadline for fling a claim for relocation payment. 7-3.4 Right to Representation (49 CFR 24.10(d)) "A person has a right to be represented by legal counsel or other ,representative in connection'with his or her appeal, but solely at the person's own expense."; 7-3.5 Review of Files (49 CFR 24.10(e)) "The Agency shall permit a person to inspectandcopy all materials pertinent to his or::her appeal, except materials which are classified as confidential ,by the Agency. The agency may, however, impose reasonable conditions on the person's right to inspect, consistent with applicable laws." Relocation Agent's Case Log or Diary Correspondence with RCTC Legal Counsel Additional materials the RCTC Legal Counsel determines to confidential and unavailable to the appellant, on a case -by -case basis he RCTC Shall Set a reasonable time limit for appellant to review the file, considering that the RCTC Legal Counsel must first review the file to determine which material is confidential and which is not. The RCTC may charge reasonable fees for any copied material in accordance with RCTC policy. 7-3.6 Scope of Review (49 CFR 24.'10(f)) " the Agency shall consider all pertinent justification` and In deciding. an appeal, g y p justification other material submitted by the person, and all other :available information that is needed to ensure a -fair and full review of the appeal." 7-3.7. Determination and Notification After Appeal (49 CFR 24.10(g)), "Promptly after receipt of all .information submitted by a person in support of ;an appeal, the Agency shall make a written determination on the appeal, . including an explanation of .the .basis on: which the decision was made, and furnish the -person a copy. , if the full relief requested is not granted, the _Agency shall advise the person: of his or her right to seek judicial review." 7-3.8 Agency Official RCTC Executive Director. (49 CFR 24.10(h)) -39- 131 "The Agency official conducting the :review of the appeal shallbe either the head of the Agency or designee(s). However, the official shall not have been directly involved in the action appealed." State regulation for state funded projects (title 25, California Code of Regulations Ch.6, Art 1 Section 6000 et seq.) Section 6.158 (a) "General. The public entity shall consider the request for review and shall decide whether a modification of its initial determination is necessary. This review shall be conducted by the head of the public entity or an authorized, impartial designee. (The designee may be a committee). A designee shall have the authority to revise the initial determination or the determination of a previous oral presentation. The public entity shall consider every aggrieved person's complaint regardless of form, and shall, if necessary provide assistance to the claimant in preparing the written claim. When a claimant seeks review, the public entity shall inform him that he has the right to be represented by an attorney, to present his case by oral or documentary evidence, to submit rebuttal evidence, to conduct such cross-examination as may be required for a full and true disclosure of facts, and to seek judicial review once he has exhausted administrative appeal." 7-3.9 Appeal Process Who can Appeal_ A person who is dissatisfied with a payment or determination of eligibility must file a Relocation Assistance Appeal Form or any other written form of appeal with the RCTC Executive Director or designee(s) (the "Appeals Board"). Hearing Date The Appeals Board shall set a hearing date of no later than thirty (30) days from receipt of the appeal. The appellant has the right to present oral and/or written evidence in support of the appeal, has the right to legal counsel and to seek juridical review once he has exhausted administrative appeal. c. Right to Counsel The appellant has a right to representation by legal counsel or other counsel at his expense at any and all stages of the proceedings. d. Final RCTC Decision The Appeals Board shall render a Decision, in writing, within thirty (30) days following the last day of hearing. A copy of the Decision will be -40- 132 mailed, certified or registered, to the appellant and his authorized representative and copies filed in the Relocation case file. The Decision of the Appeals Board shall be final; however, the appellant shall: be advised that he has the right to seek judicial review of the Appeals Board's decision.= Appeals Board The following are designated by the Executive Director as members of the Appeals Board: the two RCTCDeputy Executive Directors and. the Project :Delivery Director or Project Delivery Director.. The :decision of the 'majority of the members of the Appeals Board is final. -41- 133 CHAPTER VII RELOCATION ASSISTANCE Section 7-4 7-4.1 General Information Notice (49 CFR 24.203(a)) Relocation Notices "As soon as feasible, a person scheduled to be displaced shall be furnished with a general written description of the displacing agency's relocation program which does at least the following: a. Informs the person that he or she may be displaced for the project and generally describes the relocation payment(s) for which the person may be eligible, the basic conditions of eligibility, and the procedures for obtaining the payment(s).. b Informs the person that he or she Will be given reasonable relocation advisory services, including referrals to replacement properties, help in filing payment claims, and other necessary assistance to help the person successfully relocate c. Informs the person that he or she will not be required to move without at least 90 days'_ advance - written notice.. =(see, paragraph-, (c) of .this section) .and informs any person to be displaced from a dwelling that he or she cannot be required to move permanently unless at least one comparable replacement has been made available. d. Describes the person's right to appeal the Agency's determination as to a person's application for assistance for which a person may be eligible under this part." 7-4.2 Notice of Relocation Eligibility (49 CFR 24.203(b)) "Eligibility . for relocation assistance shall begin on the date of initiation of negotiations (defined in section 7-1.9 of this Right of Way ;Manual) for the occupied property. When this occurs, the Agency shall promptly notify all occupants in writing of their eligibility for applicable relocation assistance." 7-4.3 Reminder Notice -42- 134 The Relocation Agent shall send timely written notification_ of the possible loss of rights and expiration date thereof to persons who: are eligible for monetary benefits, and have moved from the acquired property, but have not filed a claim. Notification shall be sent periodically throughout the qualification period. In any event, written contact shall be made no later than within the last six months prior to the filing expiration date. This will allow sufficient time within which to obtain necessary documentation to complete the claim filing(s). If no response to the written notification is received, the Relocation Agent should make telephone contact, within the appropriate time limit and document the contact in the log or diary. 7=4.4. 90-Day Notice (49 CFR 24.203(c)) "(1)General.. No lawful occupant shall be required to move unless he or she has received at least 90 days advance written notice of the: earliest date 'by. which ;he or she maybe required to move." There are two alternative methods for providing notice to vacate: b. -90-Day Information .:Notice followed ,by a30-Day Notice - to Vacate_ with date certain; or 90-Day Notice to Vacate with date certain. "(2) Timing of notice. The displacing agency may .issue the notice 90 days before it expects the person to be displaced or earlier. The 90-Day Information Notice may not be served prior to initiation ` of negotiations for acquisition of a parcel and, as a general rule, shall: not be served until the RCTC has obtained legal possession of the ,property. On an exception basis, such as projects with short :,lead time or instances where rental delinquencies can be anticipated, a 90-Day Information Notice may be given on or after initiation of negotiations for the parcel. In such instances, the 30-Day 'Notice to Vacate _shall not be given `until the RCTC has legal possession of the property. In either event, lawful eligible occupants must be informed of the maximum relocation . housing payment amount to which they are entitled at least 90 days prior to the time they are required to vacate. Situations will .occur where :projects slip and the need for clearance is postponed after issuance of 90-Day Information Notices. If 30-Day Notices to Vacate ;are not served within six months following issuance of the 90-Day Information -43- 135 Notices, the original 90-Day Information Notices shall be canceled and new ones issued when the need for clearance arises again. . 7-4.5 Content of Notice (49 CFR 24.203(c)(3)) "(3) Content of notice: The 90-day notice shall either state a specific date as the earliest date by which the occupant may be required to move or state that the occupant will receive a further notice indicating, at least 30 days in advance, the specific date by which he or she must move. If that 90-day notice issued before a comparable replacement dwelling is made available, the notice must state clearly that the occupant will not have to move earlier than 90 days after such dwelling is made available. (See Section 24.204(a).)" The 90-Day Information Notice is not a notice to vacate. A Relocation Agent serves the 90-Day Information Notice in person to eligible and ineligible lawful occupants who: a. are required to vacate because of the proposed project, and b. have personal property located on the acquired property. 7-4.6 30-Day and 90-Day Notices to Vacate A 30-Day Notice to Vacate may be issued after 60 days have passed since the 90-Day Information Notice was issued. This notice cites a specific date by which _ the. displacee. must vacate ;This date may be extended, but any extension must be in writing -Arid 'must cite a new specific date by which displacee is to vacate. Since no eligible person shall be served a Notice to Vacate from a residential unit unless appropriate housing is available, at least one available comparable replacement property that is within financial means, must be offered to displacee simultaneously with the .Notice to Vacate. • . A ,parcel log .or diary entry shall;. indicate by address the specific dwellings offered at the time of service. A 90-Day Notice to Vacate shall not be given until the RCTC has control of the property. Control of property is obtained on the date escrow is closed, the Final Order in Condemnation is recorded, and the Order of Possession is signed by the court, notwithstanding the fact that physical possession is not taken for at least 90 days. 7-4.7 Notice to Vacate with Order of Possession Any Notice to Vacate to be served in conjunction with an Order of Possession shall be reviewed by RCTC Legal Counsel, and shall comply with the provisions set forth in California Code of Civil Procedure section 1255.410. 7-4.8 Notices to Unlawful Occupants -44- 136 Eligible tenants who are either delinquent in their rental payments or in violation of their rental agreement for any other reason are considered unlawful occupants and are served either a 3-Day Notice demanding payment of. Rent or Possession or 30-,Day 'Notice of Termination of Tenancy and Notice to quit. Although the RCTC is under no obligation to the unlawful ineligible tenant, the Relocation Agent is encouraged to provide advisory services as a method :of assisting unlawful tenants in vacating the property, particularly where hardship conditions .exist. 7-4.9 Urgent Need (49: CFR 24.203(c)(4)) "(4) Urgent need. In unusual circumstances, an ,occupant may be ;required to. vacate the property, on less ,than 90 days advance written notice if the displacing agency determines that a °'90-day notice is impracticable, such as when the. person's continued occupancy of the property would constitute a substantial danger to health or safety. A copy of the Agency's determination shall be included in the applicable case file." -45- 137 RELOCATION ASSISTANCE Section 7-5 Availability of Comparable Replacement Dwelling 7-5.1 General (49 CFR 24.204(a)) "No person to be displaced shall be required to move from his or her dwelling ' unless at least one comparable replacement dwelling (defined at Section 24.2(a)(6)) of 49 CFR part 24 and paragraph 8-1.7 - (i) of this Right of Way Manual) has been made available to the person. Where possible,three or more comparable replacement dwellings shall be made available. A comparable replacement dwelling will be considered to have been made available to a person, if: a The person is informed of its location; and b. The person has sufficient time to negotiate and enter into a purchase agreement or lease for the property; and c. Subject to reasonable safeguards, the person is :assured- of receiving the relocation assistance and acquisition payment to which the person is entitled in sufficient time to complete the purchase or lease the property." One of RCTC's goals is that any available comparable- used to determine a price/rental differential .should be available at the listed priceduring the period displace is actively seeking replacement housing. This period. of .active search - ends when the earlier of the following dates occur: a. Displacee enters into a contract to purchase (acceptance of Deposit Receipt), builds, or rents a replacement property. b. Displacee vacates displacement property. 7-5.2 Waiver of Policy (49. CFR 24.204(b)) "The Federal agency funding the project may grant a waiver of the policy in paragraph 8-5.1 of this section in any case where it is demonstrated that a person must move because of: a. A major disaster as defined in section 102(c) of the Disaster Relief Act of 1974 (42 U.S.C. 5121); or b. A Presidentially declared national emergency; or c. Another emergency which requires immediate vacation of the real: property, such as when continued occupancy of the displacement dwelling constitutes a substantial danger to the health or safety of the occupants or the public." - 46 - 138. 7-5.3 Emergency Move (49CFR 24.204 (c)) "Whenever a person is required to relocate for a temporary period because of an emergency as described in paragraph 8-5.2 of this section, the Agency shall: ,,_ .� 9 ;. y 9 Y Take whatever steps are necessary to assure that the _:person is temporarily relocated to a decent, safe, and sanitary dwelling;; and Pay the ,actual reasonable out-of-pocket moving expenses and ; any reasonable increase in rent and utility costs incurred in connection with the temporary relocation; and Make ;available to the displaced person as soon as feasible, at least,; one 'comparable replacement dwelling. (For purposes of filing a.. claim and meeting the eligibility requirements for a relocation payment, the date of displacement is the date the person moves from the temporarily: `occupied dwelling.)" 9�) -47- 139 CHAPTER VII RELOCATION ASSISTANCE Section 7-6 Relocation Payments 7-6.1 Documentation of Claims (49 CFR 24.207(a)) "Any claim for a relocation payment shall be supported by such documentation as .may be reasonably required to support expenses incurred, such as, bills, certified prices, appraisals, or other evidence of such expenses. A displaced person must be provided reasonable assistance necessary to complete and file any required claim for payment." The Relocation Agent must . verify qualifying activities, such as moving and occupying replacement housing, by personal inspection with documentation in the parcel log or diary. When federal funds are involved in an RCTC project, P.L. 105-117 prohibits the provisions of relocation payments or assistance under the Uniform Act to persons not lawfully in the United States. If the project is federally funded, the displacee will have to "self certify" their legal residency.in the. :United States and . eligibility, ; for relocation benefits and assistance. The Relocation Agent shall advise the displacee of this requirement as early as the provision of advisory assistance and no later than the application for benefits. The ROW staff shall develop a form for such Self Certification 7-6.2 Expeditious Payments (49 CFR 24.207(b)) "The Agency shall review claims in an expeditious manner. The claimant shall be promptly notified as to any additional documentation that is required to support the claim. Payment for a claim shall be made as soon as feasible following receipt of sufficient documentation to support the claim." The Relocation Agent completes a standard claim form and submits it to Accounting after replacement property is selected and payment amounts can be determined. The claim may be completed prior to meeting all conditions if funds are required and displacee has: a. Opened escrow for replacement property. b. Assigned the funds to the escrow company. c. Signed a statement agreeing to occupy the replacement dwelling ;within 30 days of close of escrow. -_ 48 - 140 The claim may also be completed when displacee relocates before the RCTC acquires the displacement property and an offer has been made for such acquisition. 7-6.3 Process for Standard Claim Form a DS & S Inspection Perform no later than 5 days after learning that replacement property has been selected. Complete Claim form and have Claimant(sysign Claim Form Prepare Claim Package Attach all: documentation needed to support theclaim, review for propriety` of payments and approve payment. d. Obtain approval of claim from ROW Program Manager. e Forward approved claim form to Accounting. 7-6.4 Assignment of Claims Displacee. may assign part or all of the claim to: c. Rent replacement dwelling (landlord). Pay, moving company expenses. Purchase replacement dwelling (Escrow Agent).. Pay any direct relocation expense, including rehabilitating replacement unit:_ Repay loans for securing any of the above. NOTE Relocation payments are not assignable for obligations, such as general debts and rent owed: to former landlord. Replacement housing payments can be placed in escrow at displacee's_option 7-6.5 Check 'Delivery Accounting shall mail payment, except in the following cases: a Payment is delivered to an Escrow Agent. b. Payment is delivered to an assignee. c:. When ROW Program Manager authorizes an employee with no prior involvement tomakepersonal delivery. - 49 141 No one directly involved in relocation of a displacee may personally deliver a relocation payment unless the Right of.Way Manager deterrnines otherwise. 7-6.6 :Advance Payments (49 CFR 24.207(c)) "If a person demonstrates the need for an advance relocation payment in order to avoid or reduce a hardship, the Agency shall issue the payment, subject to such safeguards as are appropriate to ensure that the objective.. of the payment is accomplished. Advance relocation assistance payments may be made only under the condition the owner -occupants sign an agreement, stating among others, that: a.. Displacee understands the amount of the advance payment is not necessarily the same as what displacee may be ' entitled to when acquisition price of dwelling is determined. b Displacee will refund to the RCTC the amount of :the payment that is greater than displacee would otherwise be paid after acquisition price is determined. When replacement housing is built or rehabilitated, payments are made .only when the unit is completed, DS & S, and occupied by the displacee. Restitution may be paid in cash, credited against purchase ;;price in -a negotiated settlement, or made as. stipulated in a judgment. 7-6.7 Time for Filing Claims (49 CFR 24.207(d)) " (1) All claims for a relocation payment shall be filed with the Agency within 18 months after: (i) (ii) For tenant, date of displacement; For owners, the date of displacement or the: date of the final payment.for the acquisition of the ;real property, whichever is later. (2) This time period maybe waived by the Agency for good cause." 7-6.8 Multiple Occupants of one Dwelling (49 CFR 24.207(e)) "If two or more occupants of the displacement dwelling move to separate replacement dwellings, each occupant is entitled to a reasonable prorated share, as determined by the Agency, of any relocation payments :that would have been made if the occupants moved together to a comparable replacement dwelling. However, if the Agency determines that two or more occupants maintained separate household within the same dwelling,- such occupants have separate entitlements to relocation payments." - 50 142 If two or more individuals:: are living together and occupying one dwelling unit, the RCTC is not obligated to, provide them with more than one replacement dwelling. The ROTCis obligated to provide eligible individuals with a comparable dwelling . on a reasonable -cost basis. If it costs less to provide one comparable replacement dwelling than two or more, RCTC shall determine the occupants'. maximum :entitlement based on one replacement dwelling. There !are :'separate ..entitlements to relocationpayments only if two ; ormore occupants ' are clearly maintaining separate households withinthe same displacement dwelling. The Relocation Agent must document why the occupants should be considered as maintaining more than onehousehold in r the displacement dwelling and prepare an economic analysis of available replacement housing alternatives. 7-6.9 Occupants, Separate or Divorce Eligible.O.ccupants who subsequently separate or divorce and establish separate households, whether by choice or by litigation, qualify for payments as one displaced family. The family's payments may be divided between :the occupants in any proportion on which they agree. This agreement must be in vvritingj and cannot be changed without written consent from both parties. If the parties cannot reach an agreement, entitlement is calculated as if they relocated .together. Payment can be determined by type of eligibility established by the first party;,to relocate and file a claim Although:;only :one party- needs tc ,sign the claim forms, checks must be made payable to both parties. If divorce or separation occurs and one spouse vacates the property prior ;to initiation of negotiations, the spouse who rernainsijr1 occupancy is,eli"gible for all relocation benefits that may accrue. 7-6.10 Owner -Occupants With Partial -Ownership Interest When a :dwelling is :.owned by several persons and occupied by one or more owners, .the replacement housing payment is the lesser of: The difference between the owner -occupant's share of the acquisitioncost of the acquired dwelling and the actual cost of the replacement dwelling Or Thei difference between the total acquisition :of the acquired dwelling, and the amount determined by the RCTC . as necessary - .to purchase a comparable dwelling... When the Tartial owner -occupant purchases a replacement that .isless costly than the estimated replacement cost and is DS & S :for the _ owner -occupant, then "spend to get" is that party's share in the acquisition price plus .the price differential. -51- 143 7-6.11 Deduction From Payments (49 CFR 24.207(f)) "An Agency shall deduct the amount of any advance relocation payment from the relocation payment(s) to which a displaced person is otherwise entitled. Similarly, a Federal Agency shall, and a State Agency may, deduct from relocation payment any rent that the displaced person owes the . Agency, provided that no deduction shall be made if it would prevent the displaced person from obtaining a comparable replacement housing as determined by Section 24.204 of 49 CFR Part 24. The Agency shall not withhold any part of a relocation payment to a displaced person to satisfy an obligation to any other creditor." Courts have held that Relocation Assistance Payments cannot be attached through legal actions. In bankruptcy situations, the RCTC must advise Trustees of any possible relocation payments. 7-6.12 Notice of Denial (49 CFR 24.207(g)) "If the Agency disapproves all or part of a payment claimed or refuses to consider the claim on its merits .because of untimely filing or other grounds, it shall promptly notify the claimant in writing of its determination, the basis for its determination and the procedures for appealing that determination." 52 - 144 CHAPTER VII RELOCATION ASSISTANCE Section 7-7. 7-7.1 Payment Eligibility A displaced person is synonymous with .a person eligible for relocation benefits. A displaced person includes the following: Any individual, family, business, farm operation, or non-profit _ organization who moves from the real property or moves his or her personal property from the real property.: (This includes a person who occupies the real property prior :to its acquisition, but who does not meet the length of occupancy requirements of the ,. Uniform Act in 49 CFR Park 24): c. Moving Cost Payments As a direct result of a written notice of intent to acquire, the initiation of. negotiations for, or the :acquisition_ of, such real prope in whole or in part for a project: As a direct result of rehabilitation or demolition for .a project;; or As a direct result of a written notice of intent to acquire, or the acquisition, rehabilitation ordemolition of, in whole or in part, other real property on which the person conducts a business or farrn operation, for a project. However., eligibility for such person under this paragraph . applies only for purposes of obtaining relocation assistance advisory services under § 24.301, § 24.302 or § 24.303 Any individual, family, business-, farm operator or non-profit organization which qualifies as: a displaced person is entitled to reimbursement for the reasonable and necessary expenses of : moving persons or personal property when: a. the personal property is located on :real property that is scheduled for acquisition by the RCTC, either as an entire or partial acquisition; b such. ,personal property is located on : remaining land which will rbe. made, inaccessible to the relocates due to being; legally and/or. physically landlocked as a result of the right of way acquisition, - 53 145 c. its owner is in legal occupancy of the real property on which the personal property is located at (a) the time the negotiations are initiated for the subject real property, (b) at the time he/she is served a "Notice of Intent to Acquire," or (c) at the time the real property was actually acquired by RCTC, d. the owner moves the personal property from the area being acquired or landlocked after the initiation of negotiations for the subject real property, or after receiving a "Notice of Intent to Acquire," whichever comes first, or e. the cost of moving the personal property does not substantially exceed the cost of replacing it at a new location. (applicable only to businesses, farms and non-profit organizations). If the RCTC's acquisition of real property used for business or farm operation causes persons to vacate their dwellings or other real property not included in the acquisition or to move personal property from other real property not acquired, they may be entitled to the cost of moving such personal property. Eligibility for payment is normally limited to :situations in which (1) the business or farm operation is moved to a new location that is not necessarily accessible to the existing dwelling, or (2) it is reasonably necessary for the relocatee to reside on or in proximity to the property on which his or her business or farm operation is located. The Case file must be documented to show the necessity for moving such personal property. a Relocatee Initially Occupies Subject After Initiation ofNegotiations _ (Subsequent Occupants) A person that .occupies the property after the Initiation of Negotiations but prior to the acquisition of the property by RCTC is entitled to relocation benefits. In residential relocation situations relocation benefits may be limited to moving .expenses unless the displaced person qualifies for a Last Resort Housing payment. Businesses that are subsequent occupants may qualify for all relocation benefits if, in the opinion of RCTC, they meet the applicable criteria for specific payments. Persons (residents or businesses) who move to a property after the initiation of negotiations and vacate it prior to the time it is acquired are not eligible for moving cost payments unless they are provided a written notice to vacate by the RCTC prior to the time they move. RCTC will make every effort to minimize subsequent occupants by offering to enter into a protective rent agreement (this is also known as a rent to hold vacant agreement) with the owner of the real property at the time of the initiations of negotiations. -54- 146 b. Relocatee Displaced from Remainder of Partial Acquisition - Not. Located Within Right of Way Acquisition Will Normally Be eligible for Moving Cost Payments. 7-7.2; General Moving Cost Policies Policy Concerning More Than One Move Moving costs cannot be paid for more than one move of the. same personal ,property without prior approval by the ROW program manager. More than one move will not be approved unless it is clearly ,in the best public interest todo so. This policy does not apply when it is necessary to move personal property to and from storage. Two moves can be justified when personal property is located within a temporary or permanent easement, one move from the easement :area and another to return it after the easement (if temporary)' reverts to the property owner. Distance .of Move There -is no ..limitation on the distance a Jelocatee moves_: personal property; however, moving cost payments must not include the expenses involved in moving the personal property more than 50 miles distance. When the relocation cannot be accomplished within the 50. miles from the subject location, the ROW Program Manager may allow reimbursement of cost to the nearest adequate and available site. Moving cost. payments can be made to cover the cost of moving personal property on to remaining or other lands owned by the relocatee or his/her landlord. Owner Retention When, an owner retains any item that was classified as real property, the cost of moving it to a. new location is never eligible for reimbursement. If a retaineddwelling is moved without rernoving the occupant's personal property, the relocatee can still be paid a moving cost payment based on the "Fixed -Payment Moving Cost Schedule"."No additional moving cost payment will be made. If, however, furnishings . are removed during the time the building is -being relocated, :relocatee could be paid the actual cost of removing, storing and replacing the subject_ furnishings, or the fixed -payment option in lieu of actual costs. -55- 147 d. Two or More Families Occupy Same Single --Family Dwelling Unit In most instances, the term "families" is used in explaining the procedures in this subsection; however, the principles and instructions also apply when one family jointly occupies a single-family dwelling unit with other individuals who are not a part of the family. Joint -occupancy families are entitled to separate moving cost payments if they are eligible for separate replacement housing or rental subsidy payments. In most cases Joint -occupancy families will be treated as Multiple occupants in one Dwelling (see Section 8-6.8 of this Right of Way Manual). 1. Separation After displacement In some instances, two or more families living together in the same single-family dwelling unit prior to displacement, will rriove into separate dwelling units after being displaced. If this :occurs and RCTC deterrnines they are separate households, each family can claim a separate moving cost payment, either the actualcost of moving their ;portion of the personal property involved or a payment based on the appropriate Fixed -Payment Moving Cost Schedule. When the payment is based on the fixed -payment schedule, each family can .be paid using the schedule method.., Their benefit. under the schedule method will be determined by their ownership of the furnishings, as with any other residential occupant. 2. All Families Relocate Together Families who livetogether prior to displacement will not be entitled to separate moving cost payments if they move to the same single- family replacement dwelling unit and continue to live together after displacement, regardless of the circumstances involved. 3. Personal Property Sold After Initiation of Negotiations and Prior to Displacement. . .Fixed Payment Option If the owners of residential personal property who selected the "fixed -payment moving cost option, sell or otherwise dispose of their :personal property prior to its being removed from the subject parcel, they shall be entitled to the fixed payment under Schedule B of the Fixed -Payment Moving Cost Schedule after such personal ;property has been removed from the right of way. The fast that personal property was disposed of prior to its removal :from the subject parcel has no effect on the -56- 148 eligibility of the relocatee to receive his/her fixed moving cost payment. The person who purchased the personal property will not be eligible for reimbursement of the cost of moving it. Actual Cost Option If the owners of personal property select -an, "actual cost". moving cost payment, then sell or otherwise dispose of. any personal property prior to the time it is removed from the subject parcel, they will not be entitled to reimbursement for the cost of moving the items that were sold or otherwise, disposed of. The party who acquired the personal property may be eligible for a moving cost payment under the policy discussed in Subsection 8-7.1 b. If a business, farm or non-profit organization is involved, the original owner, who owned the items at the initiation of negotiations, may be: eligible for a "Tangible Property Loss" payment relating to the ;items sold and/or disposed of. No moving cost payment will be paid for items that are sold to customers of a business, farm operation or non-profit organization, as well as the cost of moving items that are sold to customers and delivered by the relocatee. Subject Real Property Sold to -Another ,Party If a property owner sells his/her real property which is needed . as right of way to another party after initiation of negotiations, and not directly to .the ROTC, and as a result, vacates such property prior' to the time possession is required by the. RCTC, he/she will not be entitled .to. `a_ moving cost - payment as -the -displacement will -be necessitated by the sale of the real property and not due to the RCTC acquisition. Payment Assurance to Moving Firms It is possible that relocatees, whose moving cost payments are, to bebased on "actual costs," may not be financially able to employ a moving firm and pay for their move prior to,receiving a moving cost payment from the RCTC. if this situation occurs, it is possible that moving firms will be unwilling to conduct the move' without assurance that they will receive payment. In such instances, one of. the three .following actions may be taken; a. Provide the ;relocatees a letter :confirming the moving cost payment offer (based on the lowest, most reasonable moving cost bid or estimate received) which they can present to the -57- 149 moving firm as proof that they will receive paymentfrom the RCTC which will enable them to pay the mover. b. The relocatees can request, in writing, that the moving cost payment check be forwarded to the moving firm in lieu of having it delivered directly to the relocatee. (The check will be made payable to the relocatee, except that the check will be mailed to the mover. c. The relocatee and the moving firm can execute an agreement authorizing the RCTC to make the moving cost payment check payable to the moving firm Actions (b) and (c) are not to be used unless the move cannot be successfully completed and (c) will not be used unless the first two actions have been specifically rejected. Two Bids or Estimates Not Available The, procedures for accomplishing various types of moves normally require at least two (2) moving cost bids or estimates. When it only possible to get one (1) bid, advise the ROW Program Manager of the facts involved and ask for authority to proceed on the basis of one (1) bid or estimate. Overtime Charges Moving cost .payments must be based on "straight time" rates and - .: not on Overtime -rates except in cases where it is essential that the- move be conducted during "off duty" hours. Prior approval from the ROWProgram Manager is required before a move involving overtime rates can proceed. 8. - Advertising. Signs and Signboards Signs which are attached to real estate are considered to be a part of the ,real property and are paid for as part of the real estate. Therefore, only portable signs will be eligible for moving costs under the Relocation Assistance Program. 7-7.3 Related Moving Costs a. Related Moving Costs Applicable to All Moves — Residential, Business, Farm and Nonprofit Organizations 1. Transportation of the displaced person and personal property. 2. Storage If it is necessary for displaced persons to store their personal property, the actual cost of such storage, not to exceed twelve -58- 150 months can be included in their moving cost claim. The Case File must be documented to explain why such storage was necessary and justify the amount of the storage charges. The cost of _storing personal property on real property being acquired or on another property owed or leased by the: "relocatee, is not "eligible for= payment under the Relocation Program. If the most practical solution is for the personal property to be temporarily stored in rented mobile storage units parked on the: subject property, such as vans, trailers, etc., the reasonable cost of, renting such units may be eligible for reimbursement. In these instances, the approval of the ROW Program Manager is required. iMoving cost claims which include storage costs must be accompanied by a paid receipt showing the amount paid as storage. :costs, length of storage period, where the personal :property .;was . stored, and if applicable, a breakdown of the storage costs. Storage costs cannot be paid when residential: moving cost payments are based on the "Fixed -Payment :Moving Cost Schedule", or when a fixed non-residential payment is made in; lieu :of moving costs. Should the owners of personal property sell the personal property while they are in storage, their eligible storage cost' period _ d and ° neither. the nor the 'buyer shall be entitled to any-paymentcovering'r,. terminates at the .end of the-, month in_which- is it is so the Y Y.._. cost of moving such personal property from the storage area. When storage is necessary, the RCTC will normally: pay' the reasonable cost of moving the personal property to the storage; site and at the end of the storage period to a place designated by, the. .—relocatee provided -.-the combined, distance of both move's, to and from storage, does not exceed 50 miles in distance. If the move from the storage occurs later than 60 days after the ,;end of the 12- - month storage period, without authorized extension, the RCTC will not reimburse the relocatee for the cost of moving the personal from the storage unit. property _ A storage period in excess of 12 months may be :approved by the ROW Program Manager based on necessity. Insurance The cost of insurance premiums covering loss and damage of personal property while in transit or storage can be included in a moving cost claim based on actual expenses but must_ not exceed ;the reasonable replacement value of the personal property involved, including the deductible, if applicable.. -59- 151 Claims including insurance premiums must be supported by paid receipts showing the amount paid for the insurance and the amount of coverage involved. Losses in Moving The reasonable replacement value of property lost, stolen or damaged (not caused by the. fault or negligence of the displaced person, his agent or employee) in ,the process of moving is reimbursable, when insurance to cover such loss or damage was not reasonably available. (This payment is not authorized when residential moving cost payments are based on the fixed: -payment schedule, or when the fixed -payment non-residential option is selected in lieu of moving costs).: The replacement value of damaged personal property will not be paid if the damaged item can be reasonably repaired. 5. Packing and Crating The reasonable costs of packing, crating, unpacking anduncrating personal property are reimbursable incidental moving costs. 6. The reasonable cost of repairs and/or modifications so that a mobile home can be moved and/or made decent, safe and sanitary. The reasonable cost of disassembling; moving and reassembling any appurtenances attached to a mobile home, such as porches, decks, skirting, and awnings, which were not acquired, anchoring of the unit, and utility hookup charges. Other Moving Related _Expenses In addition to the specific incidental moving costs discussed herein, eligible relocatees can be reimbursed for other moving expenses that the RCTC determines to be reasonable and necessary that are not specifically ineligible. Under no circumstances will the ROW consultant discuss with a displaced person any payment under this section until the Right of Way Manager has approved the payment. Any license, permit, fee, or certification required of the displaced person at the replacement location. However, the payment may be based on the remaining useful life of the exiting license, permit, fee or certification. 10. Professional Services The reasonable costs of professional services necessary for (a) planning the move ;of personal . property. (b) moving the personal -60- 152 property, or (c) installing the relocated personal property at .the replacement site are reimbursable. Reasonable "out of pocket" fees paid to consultants for preparing inventories of personal property are normally reimbursable Relocatees should be encouraged to submit proposals for obtaining professional services, including the anticipated costs, to, Right ,of Way Department prior to approval. P p g The cost to -represent the laced person displaced during the relocation process, the :cost -to prepare a claim for the displaced:' person or any other ,costs for -services that are available from RCTC .:or its ROW consultants are specifically ineligible and will notbe paid The cost of professional services .will :be limited to the =reasonable hourly rate charged by others in the specific profession. 1.1. Re -lettering Signs, Replacement of Stationery and Notices of New Location Actualreasonable cost of re -lettering signs and replacing stationery on hand at the time of displacement that is made ; obsolete as : a result of the move are reimbursable. Generally, the cost of replacing_; stationery will be - limited to the: amount of. stationery the,. . person had "on hand" at the date of the move. In instances when a business has less than a "minimum run" of stationery on hand' RCTC may, at its option, pay the full cost of the minimum; run A pre -determined maximum expenditure should be agreed upon between RCTC and the displaced person for these:: items of cost before a payment commitment i's.made: :Related Moving. Costs Applicable: Only to Residential Moves': Removal, and Reinstallation Expenses = Appliances Residential Personal Property- The reasonable- costs of disconnecting, dismantling, removing, reassembling and reinstalling relocated household appliances,, and other .personal property are reimbursable. Cost of altering or modifying residential items of personal property, y��.t.oadapt to the replacement dwelling, cannot: normally be a reimbursable incidental moving cost 'Cost of Transportation, Meals and Temporary Lodgin`g When . a residential move is involved, except when the fixed - payment o option is applied, the costs of transportation of. -individuals p pP � p -61- 153 and families to the replacement Location are eligible for reimbursement up to a distance of 50 miles. Such costs can be on a mileage basis, computed as one trip from the property acquired to the replacement property, or actual costs if commercial transportation is used. Transportation costs can include special services such as the cost of an ambulance to transport relocatees up to a distance of 50 miles. The actual reasonable costs of meals and lodging can be paid if it is necessary for the relocatees to "eat out" or spend a night in a motel or hotel because of the move. Lodging rates and meals must not exceed the routine rates paid by RCTC to its employees when they travel on RCTC business. Receipts will be required to prove that such expenditures were made and the actual costs involved. Temporary lodging provisions are not to be used to house relocatees while other quarters are being acquired or constructed, as comparable replacement housing must be available for occupancy prior to the time the relocatee is required to move. 3. Nonrefundable Mobile Home Park Entrance Fee Nonrefundable mobile home park entrance fees at the replacement site are reimbursable as incidental moving costs. Reimbursement for , such. fees _cannot exceed the entrance- fee, charged by the selected' Comparable replacement mobile home park on which the relocatee's relocation housing payment was based. c. Moving Related Costs Applicable Only to Business, Farm and Nonprofit Organization Moves Removal and Reinstallation Expenses — Machinery, Equipment and Other Personal Property The reasonable costs of disconnecting, dismantling, removing, reassembling and reinstalling machinery, equipment and other personal property can normally be included in moving cost payments that are based on actual moving expenses. The reasonable costs of making modifications to the personal property as necessary to adapt it to the replacement structure, replacement site, or to the utilities at the replacement site, are reimbursable incidental moving costs. The cost of modifications to adapt the utilities at the replacement site to serve the personal property are also reimbursable. Search for Replacement Site -62- 15'4 The owner of, a displaced business, farm operation or nonprofit organization can be reimbursed for the actual reasonable ; and ;documented expenses incurred in searching for a suitable replacement property, not to exceed $2,500. Applicable expenses include: transportation — based on actual fees chargedr for commercial transportation or allowable ROTC. employee mileage rate when a private vehicle is used, meals away from home not to exceed the rate paid to RCTC employees when they travel on RCTC 'business, . lodging away from home not to exceed standard rates charged by motels and hotels in the area, the value of time actually spent in the search, based on the applicable and reasonable salary or earnings. of the person(s) conducting the search, e. "fees paid to a real estate agent, broker or other consultant to locate a replacement property, exclusive of any fees or commissions related to the purchase of the site, Time - spent in obtaining permits -and attending zoninc hearings; and Time spent negotiating the purchase, of a replacement site based on a reasonable salary or earnings. All expenses claimed (except -the value -of time :spent; in the search) must be supported by receipts or bills. Time spent will be documented with an invoice that reasonably explains the :time actually spent in the search. Otherwise, eligible searchcosts .;incurred prior to the initiation of negotiations are reimbursable if (1) they were _incurred due to ,reasonable anticipation of the property being acquired by 'RCTC, and (2) the relocatee becomes eligible for a moving .cost. payment.. Costs of Attempting to Sell Personal Property The reasonable cost incurred -in attempting to sell an item -of personal ,property that is not to be :relocated is reimbursable. Purchase of Substitute Personal Property (49 CFR) -63- 155 If the item of personal property, which is used as part of a business, nonprofit organization or farm operation, is not moved but is promptly replaced with a substitute item that performs comparable function at the replacement site, the relocatee is entitled to payment of the lesser of: a. the cost of the substitute item, including installation costs at the replacement site, minus any proceeds from the sale or trade-in of the replaced item, or b. the estimated cost of moving and reinstalling the replaced item, based on the lowest acceptable bid or estimate for relocating the item including incidental costs, but excluding any allowance for storage and any allowance for modifying the equipment, the utilities or the replacement structure. {One bid or estimate: is. acceptable in determining the estimated cost of relocating an item when a low cost and/or uncomplicated move is involved}. This procedure should be recommended to relocatees when it will cost more to move an item than to replace it in kind or with a suitable substitute at the replacement site. If relocatee insists .on moving the item, request procedural advice from the ROW Program Manager. If a situation is encountered where the cost of moving an item that cannot be replaced or suitably substituted is. substantially .,, more. than its value, provide all facts to the ROW Program Manager and request procedural instructions prior to making a commitment to the relocatee. Facts submitted must clarify the importance and/or necessity of the item in carrying out the relocatee's business, farm or nonprofit operation. Payment of monthly yellow page advertisement costs, after vacation of the project site, when the cost could not be avoided and the business can demonstrate that it gains no benefit from the continuing ad. At no time will yellow page advertisement costs be reimbursed if the contract for the ad was initially committed to after the Offer to Acquire the real property that the business occupies. In instances when the yellow page advertisement predominantly markets a phone number and the number does not have to be changed as a result of the move, there will be no payment under this subsection. In instances when a phone number has to be changed and the advertisement predominantly markets the phone number, the cost under this ;subsection may be limited to reimbursement of call forwarding for 1 year from the date of displacement. 64 - 1'56 6. Connection to available nearby utilities from the right of way to improvements at the replacement site. Professional services performed prior to the purchase or Tease of a replacement site to determine its suitability for the displaced person's business operation including, but not limited to, .. soil testing, feasibility and marketing studies (excluding any fees or commission directly related to the purchase or lease of such site).. All expenses must be pre -approved by the ROW manager prior to the costs > being incurred by the business. Impact fees or one-time assessments for anticipated heavy utility usage, as determined to be necessary by the ROW Manager. 7-7.4 Tangible Property 'Losses (49 CFR 24.301 (g) (14)) The owners of displaced 'businesses, farm operations :or nonprofit organizations (either partial or complete displacement), who are eligible for a moving cost payment, can elect not to move some, or all, ' of their personal property and be reimbursedfor the monetary loss they will experience by not moving such :item provided: that such loss does not exceed the estimated cost of moving the items(s) involved, and the relocatee made a bona fide effort to sell the :items involved unless. the district determines: that _such -effort is not;. necessary (items "traded in" on replacements will be considered :as having been sold). Relocatees should not be excused from the requirement in letter b, above, unless it is rather obvious that the item(s) involved have no resale value. When the Relocation Agent determines that- an effort 'to sell is not necessary, the Case File must be documented to justify the decision. The fact that relocatees claim tangible property losses :for some of the items involved .has no effect on their moving cost claim :covering other items that were relocated. The. Relocation Agent must be very sure, howeVer, that the cost of moving items included as a ;tangible Foss are not included in a moving cost claim. Items for which tangible property losses are paid must not be included in moving cost inventories, bids and estimates or moving cost agreements. The tangible property loss payment will be the lesser of: 1: the: depreciated in -place value of the !item, less the proceeds from its, sale, or the estimated cost of moving the item -including disassembling and reassembling, .but with no allowance for storage or any allowance. for modifying the equipment, the utilities .or the replacement -65- 157 structure. The term "depreciated in -place value" is synonymous with "fair market value of the item for continued use at the displacement site." The Relocation Coordinator can approve any reasonable method of determining the depreciated in -place value including, but not limited to, an independent appraisalprocured by RCTC. When payment for property loss is claimed for goods 'held for sale, the in- place value will be based on the cost of the goods to the relocatee, not in its potential selling price. The following procedure is applicable when eligible displacees desire to claim tangible property losses: Step One: Ask the relocates to prepare a statement showing the depreciated in -place value of each item involved. The statement must explain and support the assigned in -place values. If the Relocation Agent disagrees with the depreciated values shown in the statement, he should obtain his own value estimates for use in determining the property loss payment. In addition, the statement must show the proceeds from the °sale of each item and the resulting net property loss assigned to each item. The proceeds from the sale or, if applicable, the trade-in value allowance in the purchase > of a substitute item, must be documented. _ _ Step Two: Prepare or obtain an estimate of the cost of moving the items involved to the replacement site, normally not to exceed 50 miles .distance. If the operation is discontinued, the moving cost estimate will be based on a moving distance of 50 miles. Step Three: Determine which is lesser, the net losses determined in Step One or moving cost estimate obtained in Step Two. The relocates will be entitled to the lesser amount as a tangible property loss payment. The relocatees' reasonable costs in selling the items involved are compensable as a related moving cost. Therefore, such costs are not considered in determining property loss payment. A space will be provided on the moving cost claim form for claiming tangible property losses. 7-7.5 Salvage yards Before paying for moving a salvage yard, the Relocation Agent must determine that it is a legal operation. 1f it is not a legal operation, the owner will not be eligible for a moving payment. To determine the legal status of each salvage -66- 158 yard encountered, the Relocation Agent should seek legal advice in providing answers to the following questions: Is the salvage yard owner also the owner of the real estate on which it is located? if so, when did he purchase the real property? If rented, when did he :occupy it? Was the salvage yard established before or after the real property was purchased or, rented? c.,. The distance of the salvage yard from the nearest major thoroughfare, or freeway and the type of thoroughfare. d Is it visible from the freeway? e. _ Is the salvage yard properly licensed? f. Is it located within a city limit? If so, which city? It .is also necessary, before <a moving cost payment can be made for relocating a salvage yard, that it be :relocated on a legal site and in;a legal manner.. The RCTC will pay for business moving cost claim, in the same manner as; any otherbusiness, if a salvage yard (1) was in legal operation prior to acquisition, (2) is reestablished as a legal operation after the move, and (3) the owner is otherwise eligible. Eligible salvage yard owners can also be reimbursed for the cost of moving the personal property, including scrap, to a disposal site or recycling center where scrap . is sold and physically destroyed. Under no circumstances,. however,; can, the owner become eligible for a moving cost payment if the personal property is sold and/or delivered to any person, company or firm who will retain or resell it as scrap.. Even though a salvage yard is illegal, and as a consequence moving ', cost payment-. cannot be made, .the owner can still be paid :for moving -tools and equipment (other than junked car bodies) such as welding apparatus, hoists air compressors, lathes, etc. Under this ,condition he :can also be. paid for moving automotive and or machinery parts which have been removed from disabled vehicles or equipment and -placed in stock for sale. The :portion for which RCTC will not pay noving costs, when the operation is illegal, relates 'to junked car, bodies and parts. 7-7.6 Reestablishment Expense (49CFR) In addition to the moving payments previously discussed, a small business, as defined in Subsection 8-1.6.1., farm or nonprofit organization may be eligible to receive reestablishment payment not to exceed ;$10,000. This ;;payment is for expenses actually: incurredin relocation and reestablishment at 'a replacement site and does not apply to part-time businesses"' in the home, which do not contribute materially to the household income as defined in Subsection 8-1.6.o. Eligible Expenses -67- 159 Reestablishment expenses must be reasonable and necessary, as determined by the RCTC. They may include, but are not limited to the following: 1. Repairs or improvements to the replacement real property as required by federal, state or local law, code or ordinance. 2. Modifications to the replacement property to accommodate the operation or make. the replacement structures suitable for conducting the operation. 3." Construction and installation costs for exterior signing to advertise the operation. If the relocatee were paid for a sign at the displacement site, their eligibility will be limited to the difference between what they were paid for the sign and the amount necessary to replace it with a comparable sign. Salvage value should be included as part of the replacement cost. 4. Redecoration or replacement of soiled or worn surfaces at the replacement site, such as paint, paneling or carpeting. 5. Advertising the replacement location. 6. Estimated increased costs of operation during the first two years at the replacement site for such items as: a. lease or rental charges, b. personal or real property taxes, _.c. , insurance premiums, and d. utility charges, excluding impact fees The Relocation Agent must verify that replacement sites were not available which would allow the operation to relocate without increased operating costs. The Case File must contain documentation of this verification. 7. Other items that the RCTC considers essential to the reestablishment of the operation. In no event can the total reestablishment cost exceed $10,000. b. Ineligible Expenses The following is a non-exclusive listing of reestablishment expenses not considered to be reasonable, necessary or otherwise eligible: 1. Purchase of capital assets, such as office furniture, filing cabinets, machinery or trade fixtures. 2. Purchase of manufacturing materials, production supplies, product inventory, or other items used in the normal course of operation. 3. Interior or exterior refurbishment at the replacement site which are for aesthetic purposes, except as allowed in paragraph a,5, above. -68- 160 4. Interest on money borrowed to make the move or purchase the replacement property. - 5. Payment to a part-time business in the home which does: not contribute materially to the household income. 7-7.7 Ineligible Moving Expenses The following expenses are not eligible for reimbursement and/or payment under the Relocation' Assistance Program and must .not be included in moving :cost claims: The cost, of moving _structures, improvements or other real which, the displaced person reserved ownership. Interest on a loan to cover moving expenses. Loss of profits 'Loss of trained employees Any additional operating expenses of a business, farm' or: nonprofit organization incurred ;because of operating in a new location;. `except as provided for in Subsection 8-7.6.a.7. Personal injury. The cost of preparing the application for moving and related expenses,'. Any legal fee for representing the relocatee in relocation matters, including appeals. Expenses for searching for a replacement dwelling.. Physical changes to the real property at the replacement location `,o business, farm, nonprofit organization, except as provided for Subsections 8-7.3.c.1 and 8-7.6a.1,2,3,4 and 5. Cost forstorage of personal property on real property owned or Teased py the displaced person except as provided for in Subsection 8-7.3.a 1:' ; OSHA,with federal, state or local, requirements' 'excepcomply t as -provided fo under Subsection 8 7:6:a.1: P _ m. Refundable security and utility deposits. 7-7.8 Residential' Moving Cost Payments Definition of Residential :Moving Costs Residential moving cost payments as discussed in this .Subsection relate to all personal property generally classified as household goods, furniture, appliances and any- other items used in the establishment and maintenance of a- home and is not used in the operation of a: business, farm or nonprofit organization. It is important that the Relocation Agent confirm that; certain items of personal property, such as satellite dishes, above ground swimming pools, and outdoor spas, were .not acquired- with the 'real property. Personal property that was acquired' with .the .real property is not eligible,for reimbursement as a move cost payment. Residential Moving Cost Payments General -69- 161 Relocated individuals or families can be paid the actual, reasonable cost of a residential move accomplished either by a commercial mover of their choice or by themselves as a "self -move", or they can elect to received a predetermined amount based on the RCTC's "Fixed -Payment Moving Cost Schedule. Each of these three options will be discussed to the following paragraphs. In order to obtain a moving cost payment, a displaced owner must file a written claim, on a claim form to be provided by RCTC, within eighteen (18) months after the later of the following dates: 1. the. date of displacement, which is the date that the move was completed; or 2. the date of final payment for the displacement dwelling, including condemnation awards, stipulated legal settlements and jury awards. Tenants must submit their claims within 18 months after the above -defined date of displacement. Moving cost payments cannot be made to relocatees until after the move has actually been conducted unless due to severe hardship when an advance payment was authorized. Advance moving cost payments will not be paid for more than 50% of the estimated cost of .moving. However, the Relocation. Agent may process a. move cost payment in excess of 40% of the estimated move cost and deliver it to the family on the date they vacate the property from the project site and relinquish claim for any personal property left at the project site. It is the RCTC's responsibility to ascertain that amounts claimed as _moving . costs are reasonable and that_; receipts, statements: and other documentation are both applicable and adequate. Required documentation must be retained in the individual Case File c. Fixed -Payment Moving Cost Schedule Individuals and families who are displaced from their dwelling, or from a seasonal residence, can elect to receive a moving cost payment based on the Federal Highway Administration's (FHWA) periodically published "UNIFORM RELOCATION ASSISTANCE AND REAL PROPERTY ACQUISITION POLICIES ACT -RESIDENTIAL MOVING EXPENSES AND DISLOCATION ALLOWANCE PAYMENT SCHEDULE." "Fixed -Payment Moving Cost Schedule." When a partial residential move is involved and the relocatee (occupant or non -occupant) elects to conduct a self -move based on the fixed -payment schedule, a flat rate of $175.00 per room or equivalent will be used not to exceed $1,750.00. =70- 162 The fixed -payment schedule is intended to be sufficient to cover a relocatee's entire .moving expenses and when a moving cost payment is based _on this option, no other incidental moving cost payments will be made. Schedule A (Occupant Provides Furniture) The following schedules are current as of. December 31, 2004. Anyone using the schedule: method must check with FHWA to insure that the schedule is current. FHWA's website for the schedule :is: http://vvvvw.fhwa.dot.gov//////realestate/fixsch96.htm Number of :Rooms 7. 8 Each Additional Room Payments Schedule 13(Furniture Provided By Landlord) 1 Each Additional Room Exceptions: * Person moved by RCTC * Occupant of dormitory $ 575. $ 750. $ 925. $ 1100. $ 1325. $ 1550. $: 1775 $ 2000. $ . 200, Schedule A: This schedule covers situations in which a relocatee:,occ.upies. and provides the furnishings for a dwelling unit. The following interpretations of the schedule are applicable. That an attic, - basement, enclosed . porch, separate shed orother similar -type storage areas can qualify .as a compe,nsableroom, provided that such area contains furniture, appliances and/or, other Personal property Y reasonably equivalent to a routine furnished room.: (Bathrooms, hallways and closets do- not qualify and must :not :be counted as separate rooms). If the amount of personal` ,propertyin'a room or space actually contains more than: the normal` contents; the room count can be. increased accordingly. -71- 163 2. That owner -occupants of mobile homes which are classified as real property shall be paid under this schedule for moving their furnishings in the same manner as owner -occupants of conventional dwellings, based on the number of rooms in the subject mobile home. If an owner retains salvage rights to a mobile home and moves it to a new location, he/she would be entitled to a moving cost payment under the fixed -payment schedule for moving his/her furnishings even though the furnishings were not removed from the unit at the time it was relocated. If the furnishings were necessarily removed from the unit and moved separately, the relocatee could elect to receive payment based on the fixed schedule. Under no circumstances could the owner be paid for moving a mobile home which was acquired by the RCTC as part of the real property. 3 If mobile home tenants own the furnishings within the unit, they shall be paid under this schedule as any other tenants of conventional units who provide their own furnishings. Be very sure that each room in the mobile home contains enough detached (movable) furnishings to make it qualify as a compensable furnished room under the schedule. If some rooms are considered to be ineligible to qualify as a furnished room due to being sparsely furnished, it is proper to combine two or more of such rooms to qualify as one compensable furnished room. 4. _ The number of "eligible rooms" on which the :fixed -payment amount is based will be established by the Relocation Agent who is assigned to the unit at the initiation of ,negotiations and must be compatible with the number of rooms reflected in the Relocation Agent's report. If the number of rooms shown in the relocation Agent's report or the letter of eligibility for relocation benefits differs from the number of rooms _shown _in,:the__;Relocatee.:Ne,eds.Questionnaire, the;"difference" must be. explained on the Relocation Agent's Report. If an eligible relocatee who selects the fixed -payment moving cost option is also conducting a business operation in the home, which does not qualify for fixed -payment non-residential moving payment, it shall be considered to include the cost of moving all personal property located therein, both residential and business, and no other moving cost payment relating to the expenses of relocating such items will be authorized. Should a non-residential moving payment be involved, or a separate business move, .it is the Relocation Agent's responsibility to insure that the personal property related to the business is not considered when determining the number of eligible rooms that are to be included in the schedule payment. If a business operation,, as discussed in the preceding paragraph, is being conducted on the residential property ("residential property" relates to the land on which the dwelling is located and normal in size 72 164 for a residential building lot in the area), but is in a separate building than the residence, the relocatee shall be permitted to select the fixed - payment option for the residential move and a separate business move (actual cost) covering the personal property ,used in relation to the. business. It is the Relocation Agent's responsibility to insure that there is no duplication of payment. Personal property that is merely stored in sheds located on the residential property (no business operation involved) shall be 'included in the fixed moving cost payments, if such option is selected by, the owner, regardless of the type of items involved and no separate moving costpayment shall be authorized. When an acquisition includes an occupied residence : located on a - parcel larger in size: than a normal building lot in the area, including those located on farms, the qualified owner shall be permitted to Select the fixed -payment option for the residentialmove and also claim the actual cost of moving any items of personal property located_ on such "extra land." Schedule B This schedule applies to occupants when the furnishings .in a dwelling unit are owned by someone other than its occupant, normally by the landlord in "furnished units." "Sleeping rooms" normally fall within this category. -The .occupants, of mobile homes who do not own the _ unitor furnishings: shall be paid by use of this schedule as any other occupant of a` conventional' -furnished dwelling unit based on the number of rooms in the mobile home. .The owner of the furnishings cannot be paid a fixed -schedule payment, . but could normally qualify for a moving payment based on actual costs. - Mobile .home owners -and : tenants who occupy, and leave their furnishings :,in a mobile home: during the time it is being. moved, and continue to occupy it after it is relocated, are not entitled to a fixed -payment:. However, if they have, furniture :in the mobile home and it is' -moved separately they may elect' to receive 'a "scheduled move payment." (The owner will be paid for moving the mobile home on an actual cost basis.) Residential Move by Commercial Mover - General . Moves in this category include all situations where eligible relocate:es employ and pay someone '(normally a: moving company or trucking flap) to move their :personal: property from the unit ;acquired by the RCTC .to a replacement unit and claim reimbursement for their actual and reasonable expenses. Applicable related moving expenses paid by relocatees, as previously discussed in paragraph 8-7.3, are available for reimbursement . under this moving payment option. Partial; displacements are discussed under a separate Subsection later in this chapter. -73- 165 Step One: The Relocation Agent must obtain at least two (2) lump sum moving cost bids (in duplicate) from licensed commercial movers who are qualified to conduct the relocatee's move. Each bid must reflect the total amount that will be charged for conducting the move. The relocatee must be given a reasonable opportunity to help select the two moving firms who will be asked to bid on his/her move. This can be accomplished by assembling a list of all certified moving companies in the area which are acceptable to .the RCTC. The reasonable preference of the relocatee should be honored; however, the Relocation Agent is not permitted to accept unreasonable requests which would not reflect good business practices, or which involve moving firms not acceptable to the RCTC. If it is not reasonably possible to agree with the relocatee; the Relocation Agent has authority to carefully select qualified movers and to proceed without the relocatee's concurrence. The Relocation Agent shall advise the Relocation Coordinator, in -writing, at any time it is necessary to proceed without the relocatee's concurrence. Copies of all bids must be retained in the Relocation Case File. Arrangements for making the move are the responsibility of the relocatee. . RCTC will not contact or employ the mover on behalf of the relocatee and will not supervise the move except under usual circumstances and only after approval is granted by the ROW Program Manager. Approval will not be granted unless the relocates is physically or mentally incapable of such actions and when they do not have anyone else willing and able to it for them. Step Two: Submit copies of the bids to the relocatee together with one copy of a Moving. Cost Agreement. A .Moving .Cost Agreement provides_ a , firm record of the pre -move agreement between the relocatee and RCTC. It is the Relocation Agent's responsibility, working with the relocatee, to make sure the: Move Cost Agreement is unambiguous and clearly states that any contract for the move is between the relocatee and their selected contractor. Every Move Cost Agreement will be different depending on the circumstances but all should include the following: i. The name of the relocatee ii. The name of the relocatee's moving contractor iii. The address from which the personal property will be moved. iv. The address to which the personal property will be moved.. v. A listing of the personal property that will be moved. vi. The date the move commenced and the date it is expected to be completed. - vii. Any unique !move situations, such as removal of a TV - 74 166 antenna from a roof. RCTC will be responsible to pay the lesser of either the actual and. reasonable cost of conducting the move or an amount equal to the lowest, most reasonable of the bids. RCTC will additionally be responsible to pay the actual cost of .eligible (and reasonable) incidental costs as previously discussed. Step Three: The Moving Cost Agreement should be ,reviewed and, ., if found proper, completed and signed by the Relocation Coordinator. The Relocation Agent will return one copy to the relocatee and retain the original for the Case File. Step Four: After the approved Moving Cost Agreement is `returned to the relocatee, the relocatee should cause the move to be completed, pay all '`moving and relatedmoving costs and obtain paid receipts for each separate expenditure. The relocatee may request that a payment be made directly to a moving company at the completion of a move. Step Five: After the move is completed and all applicable costs paid, the relocatee should file a claim for reimbursement. The claim must be filed Within the 18-month period. Mobile Homes The owners of mobile homes which have been classified as personal property can claim the actual and reasonable cost;, of 9 y i . moving the to an -location within 'S0 mrles distance. The owners of displaced homes must follow the same five steps outlined above, to obtain reimbursernent for the move. Moving; cost bids should be from qualified bidders who are equipped and capable of moving mobile homes. The RCTC will, reimburse the relocatee for incidental expenses related to the move, including disconnection and hookup of utilities and appliances. The, cost Hof extending water, sewer, electric or other utility lines to and on the replacement site is not eligible for reimbursement as an incidental moving cost (This is considered a :capital improvement to the site). Residential Self -Move For unusual situations where the Relocation' Agent determines that a fixed -payment or actual cost move is not ;the most reasonable and cost effective way to move all or a portion of an occupant's 'personal property, a residential occupant may conduct a self -move. This will include 'both occupant- and non -occupant owners of mobile homes which have been -75- 167 designated as personal property. Payment will be based on the Actual and Reasonable Costs incurred. A Moving. Cost Agreement; must be executed between the RCTC and the owner. Current Federal Regulations do not permit a resident to make a non -documented self -move except by using the "Schedule" method. f. Combined Residential and Business or Farm Moves If the acquisition from the same property necessitates the relocation of. both residential personal property, personal property used in relation to a business or farm operation, and the relocatee selects the "actual cost" payment option (either by commercial mover or self -move), the Relocation Agent has authority to authorize the relocatee to include all items involved in one mover or to require the residential and business or farm move to be separated. The decision as to whether one overall move, or two separate moves will be authorized should be based on the amount and type of personal property involved and its compatibility in relation to 'being moved by the same mover and with the same moving equipment. Should the relocatee opt for the fixed moving payment, the :Relocation Agent must be sure that the cost of moving personal property related to the business or farm operation is not included in the RCTC's moving cost payment: 7-7.9 Business, Farm and Nonprofit Organization Moving Cost Payments a. General Owners of displaced businesses, farm operations and nonprofit :organizations can either employ commercial movers to relocate their personal property, conduct self -move, orhave a combined commercial and self -move. Moves that involve large moving cost payments must be monitored, at both the displacement and replacement sites, by the Relocation Agent, to the extent necessary to assure that the personal property involved was actually moved (at the relocatee's expense) to their remaining or replacement property and that the moving cost claim is reasonable and accurate. Relocatees are required to give advance written notice of the date the move will begin. Failure to provide the written notice, or to permit the Relocation Agent to monitor both at the displacement and replacement sites, can cause forfeiture of moving payment eligibility. -76- 168 On -premise monitoring may be waived by the ROW Manager in cases of non -complicated moves. When the requirement is waived, a justification !must be documented in the Case File. 1. Multi -Family and Single -Family Furnished Rental Units 2. The owners of furnished multi -family dwellingsor furnished single- family dwellings, which they do not occupy, can ,be reimbursed for the cost of moving such furnishings as a routine business move.. In an effort to minimize administrative burdens in the relocation process, it is permissible to reimburse the cost of moving the personal property for these types of businesses using the moving -schedule. The 'businesses would be additionally eligible for other related moving costs such as reestablishment payment. Entire Displacement — Partial Acquisitions If the majority of a business property or farm operation is _being acquired as right of way, and/or if :the right of way acquisition is so severed that the business or farm operation cannot be continued, the owner can be paid for moving all personal property used in . connection with the business or farm operation including: items located outside of the right of way acquisition,. provided that such 'items are moved within a reasonable time after . acquisition,. normally ;by the end of the relocatee's : authorized possession: of the acquired area unless an extended time period is agreed upon in: writing between the RCTC and relocatee. The Case file must be documented to show why the entire business or farm operation must be relocated when a partial acquisition is involved. Two or More .Owners of Personal Property Involved In instances where several different persons or frms,own personal property located on business or farm real property' being: acquired by,the ROTC, each owner is entitled to ;the cost of moving his/her items of personal property. Each must file a separate`; claim. Commercial Mover Moves in 'this category include all situations where the qualified owners of displaced' businesses, .'farm operation and nonprofit organizations employ someone to move their personal property from real estate, 'acquired to:.a replacement site and claim reimbursement for their actual and reasonable. moving expenses. Applicable related moving expenses: paid by the relocateeare reimbursable under this rnovin,g.cost payment; option. -77- 169 If the relocatee moves more than 50 miles, the payment will be based on the prorated portion of the moving costs that would have been applicable to a 50 mile move. If there is a need for specialized moving equipment and/or expertise, it is permissible for the owner to employ two or more commercial movers. It is also permissible for such owners to conduct .a move by employing a commercial mover to move part of their personal property and move the balance by self -move. 1 Moving Cost Bids Available The :following procedure is applicable when eligible owners of business, farm operations and nonprofit organizations elect this moving cost payment option and it is practical to obtain prior moving cost bids from qualified moving firms: • Step One: Obtain an inventory from the relocatee showing the items of personal property to be moved. It is permissible for small items to be grouped into "lots" or to be "lumped" together in some other type of identifiable unit such as specific number of 'bins, boxes, barrels, etc. The Relocation Agent must make an on -site inspection of the items involved and assure that the inventory is accurate. The Case Files must be documented ;to show the. inspection. `Inventories should be prepared either (a) at or near the time of actual move, or (b) at or near the time that the RCTC acquires the parcel, whichever occurs first. Inventories must be submitted by the relocatee and a replacement _site selected prior to commencing .the next step: . Step Two: The Relocation Agent, working in concert with the business, must create moving specifications insuring that there is a meeting of the minds how the personal property will be disconnected. (as necessary), packed, disconnected, moved, reconnected and unpacked. The Relocation Agent must obtain at least two (2) moving cost estimates from qualified movers based on the inventory. Relocatees must be given an opportunity to concur in the selection of moving firms who will prepare the bids. If the lowest bid appears to be unreasonable, the Relocation Agent must obtain additional bid(s) to assure that the moving cost agreement will be based on an acceptable amount. It is expected that bids will be provided without cost; however, with prior approval of the ROW Program Manager, movers can be compensated for preparing bids for specific moves. -78- 170 Copies of all bids must be retained in the Case File. Step Three: Submit copies of the bids to the relocatee togetherwwith a copy of a Moving Cost Agreement prepared by the Relocation Agent. (See Section 8-7.8 d. for minimum standards of a Move Cost Agreement.) Advise the relocatee to complete ;his/her portion of the agreement (reflecting the low bid) and return both copies to the RCTC. Step Four:; The :Moving Cost Agreement, when received by, the RCTC from the relocatee, should be carefully reviewed, and' if found proper, completed and signed by the ROW Program Manager. A copy is to be returned to the relocatee and the original. retained in the, Case File. Step Five: After the approved Moving Cost Agreement is returned to the relocatee, he/she should provide a 5-day written moving date notice (unless waived by RCTC) and cause the - move to be . completed. Step Six: After the move is completed, 'the relocatee must provide the RCTC an inventory of the items of persona_ l property that were actually moved to his/her remaining or replacement. property.:: The post -move inventory. must contain a 'statement; that all of the 'items listed therein were actually moved from the project location. Step Seven: The Relocation Agent must conduct an .on, site review of the post -move inventory to attest that is it reasonably accurate rand that does not containany items of :real propert0hat were retained and moved by the relocatee. If the post -move inventory is substantially the same as; the :pre - move inventory, the Relocatee can be .paid the actual moving costs pursuant to the Moving Cost ,Agreement. Eligible .documented incidental expensesmay likewise be paid. Step :Eight: The relocatee must f1e his/her claim for reimbursement within the 18-month period. 2; Moving Cost Bids -Are Not Available If it is not practical to obtain advance moving cost bids' due to the . complexity of a move, the relocatee can be authorized by the ROW Program . Manager to conduct the move without them. When the requirement for obtaining bids is waived due to the complexity of the move, the Case File must be documented and _ state:. the -79- 171 justification therefor. In such unique cases, a Move Cost Agreement must be prepared by the Relocation Agent and agreed to by the relocatee. The same requirements for a . Move Cost Agreement apply with the obvious exception to an agreed cost of the move. If a business refuses to agree to sign a reasonable Move Cost Agreement, RCTC will not reimburse it for any costs associated with the move. c. Self -Moves Qualified owners of any displaced businesses, farms or nonprofit organizations have the option of conducting a self -move. Under this option, the relocatees will move their personal property and will not employ .a commercial mover to conduct the move. 1. Moving Cost Estimates are Available The following procedure is applicable if estimates can be obtained for the amount that would have been charged by acommercial mover for conducting the move. Step One: Relocatee must prepare an inventory of the items of personal property that must be moved as a result of the right of way acquisition. Step Two: - Relocatee must advise the Relocation Agent, in writing, of his/her intent to conduct a self -move and request that the . Relocation Agent obtain moving cost estimates based on the inventory. _ Step Three: Relocation - Agent must make; ,an on -site inspection of the items to be moved. Assure that none of the items listed in the inventory is included in the real estate appraisal as real property. Relocation Agent, working with the business, will create specifications for the move of the personal property. Step Four: The Relocation Agent must obtain at least two (2) moving cost estimates from commercial movers who are qualified to conduct the move, if the moving cost is expected to exceed $2,500. If the cost of the move is expected to be $2,500 or less, one estimate covering the cost of the move can be obtained. Bids should not be obtained before the relocatee has selected a replacement site so that actual mileage can be used. (50-mile rule applies). Copies of all bids must be retained in the Case File. _ 80 _. 172 Step Five: The Relocation Agent will prepare a Moving Cost Agreement in compliance with previous sections of this manual. The :relocatee must sign the agreement and forward a signed agreement to RCTC. The ROW Manager must review, approve and sign the agreement, which should be reviewed, completed and signed by the ROW Program Manager. Step Six: The ROW Manager will return a fully executed copy of the Moving Cost Agreement to the relocatee and the Relocation Agent. The relocatee should provide the 5-day written moving date notice and complete the move. Step- Seven: After the move is completed, the relocatee must . present an inventory of the personal property actually moved.. The post -move inventory must contain a statement that all of the items listed therein were actually moved from the project site:. Step Eight: The Relocation Agentmust conduct an ; on -site review .of the post -move inventory to assure that it is reasonably accurate and that it does not contain any items of real property that were. retained and moved by the relocatee: If the post -move inventory is substantially the same as the ° pre move inventory, the relocatee may be paid the amount' of the low moving cost bid, as reflected in the Moving Cost Agreement,;° without presenting additional documentation: They can also be paid eligible documented incidental expenses. Step Nine: °Reiocatees must file their claim for reimbursement . within the 18=month period. 2. Moving Cost Bids Not. Available If due .to the complexity of the move, it is not practical to obtain moving cost bids or estimates, the relocatee can be : authorized by the ROV1f Program Manager to conduct the move without bids.' The relocatee must, bereimbursed for his/her actual, reasonable' and documented moving cost expenditure, not to exceed the cost of a. 50-mile move. The minimum requirements of a Moving Cost Agreement . are applicable and because of the inability to _secure estimates. for the 'business' self -move the Move Cost Agreement must additionally include: An estimate of the time the owner and employees of the, firm anticipate they will need to conduct the move and an agreed upon hourlyrate for the owners and his/her employees. Hourly costs of _ equipment supplied by the business during the :.move will be: included . in the Move Agreement. Equipment charges for -81- 173 equipment rented for the movemust be supported by receipts. Reimbursement of rental equipment will be limited to the actual out of pocket expense. 7-7.10 Partial Displacements — Residential, Business, Farm and Nonprofit Organizations a. Partial Displacement Moving Cost Payments — General Moving Costs discussed in this subsection relate to situations when the occupant of a subject parcel is not displaced, but items of personal property Located within a partial acquisition must be moved. instructions herein also relate to situations when unoccupied parcels are acquired which contain miscellaneous items of personal property which must be moved. Owners of such personal property can be - reimbursed for their actual reasonable expenses of moving which such items, based either on the cost of a commercial mover or of a self -move. b. Partial Displacement Moving Cost Payments — Commercial Mover If personal property classified as "residential" is involved in a partial displacement and the owner employs a commercial mover to move the items, the procedure in subsection 8-7.8.d. is applicable. If the personal property belongs to, or is used in connection with, a business, farm or nonprofit organization, the procedure in subsection. 8-7.9 b is applicable: -. c. Partial Displacement Moving Cost Payments — Self -Move When personal property classified as residential is involved in a partial displacement and the owner, occupant or non -occupant,, elects the self -move option, the procedure outlined in subsection 8-7.8.e. is applicable or the owner may elect to be paid on the basis of the fixed -payment moving cost schedule for residential personal property with the following conditions: 1. Relocation Agent must determine the number of normal furnished rooms or fractions of room the personal property to be moved represents. 7-7.11_ Moving Cost Agreement. The following agreements shall be prepared: a. Moving Cost Agreement — Actual Cost Option Move Conducted by Commercial Mover — Residential - Bids Available b. Moving Cost Agreement — Actual Cost Option — Move Conducted by Commercial Mover — Business, Farm and Nonprofit Organization — Bids Available 82. 17.4 c. Moving Cost Agreement — Actual. Cost Option - Self -Move — Business, Farm, Nonprofit: Organizations — Moving Cost Estimates are Available d Moving Cost Agreement — Actual Cost Option — Commercial or Self -Move Business, Farm and 'Nonprofit Organization' moving Cost Bids and/or . Estimates Are Not Available 7-7.12 Claim Forms - Actual Cost Moving Cost Payments The following forms shall be prepared: a :.Claim Form - Actual Cost — Commercial Mover — Residential, Business, Farm 'andNonprofit Organizations ,Claim Computations When Some Items of Substitute Personal Property Involved Claim : Computations When Entire Claim Based on Cost of Substitute Items Claim Form - 'Actual Cost — Self Move Claim 'Computations When Substitute Personal Property Involved :Moving Cost Claim— Combined Moves Including Both Commercial_ Moves and Self -Moves Section 7-8 CHAPTER VII RELOCATION ASSISTANCE Fixed .Payment Moving Payments -- Businesses, Farm. Operations And Nonprofit Organizations 7-.8.1 Fixed Payments Businesses Payment :Eligibility Requirements -83- 175 The owner of any business which qualifies for a moving cost payment may elect to claim a fixed payment for moving instead of a moving cost payment based on actual cost plus related .expenses, provided that the additional eligibility requirements outlined in the following four subparagraphs are satisfied. The terms "fixed payment", "in -lieu payment", "displaced business", "displaced farm operation", "and displaced nonprofit organization payment", and "fixed payment for moving expenses, non-residential moves" are synonymous. 1. Business Must Contribute Materially To Its Owner's Income Only displaced lawful businesses which contribute materially to the owner's income can qualify for a fixed moving payment. The term "lawful business" relates to any business not prohibited by law. Businesses operating in violation of zoning ordinances and/or laws, except those legally operating under a "grandfather clause", will be considered unlawful. It is possible for a lawful business to be operating illegally due to improper licensing. Lawful businesses operating with license deficiencies will, if otherwise qualified, be eligible for fixed moving payments. Relocatees who claim fixed payments must provide copies of their, , federal income tax returns for -the two applicable -tax years Ito prove (a) that the business operation meets the "material contribution" test, and (b) for use in computing the amount of their fixed payment. Only the portion of the tax returns necessary to prove material contribution and average annual net earnings is required. Income information provided by the relocatees may be verified with. the IRS if for any reason the amount of net income appears questionable. . 2. Requirement Concerning Inability to Relocate Businesses Without Substantial Loss of Existing Patronage To qualify for a fixed payment, it must be determined that the business cannot be relocated, or in case of a partial acquisition, that it neither continues to operate on the remaining property or be relocated, without substantial loss of its existing patronage. "Patronage" as used in the term "substantial loss of existing patronage" relates to either "clientele" or "net earnings". When nonprofit organizations are involved, it relates to membership or clientele. 84 - 176 When making a determination concerning the ability to satisfactorily relocate the business, a business is presumed to suffer a. substantial Loss of its existing patronage unless the RCTC proves otherwise. Business owners are given the benefit of the doubt concerning his/her ability to relocate. The presumption of loss of existing patronage is required by FHWA relocation regulations:. Presumption, as required under those regulations, is not a statement that RCTC assumes there will be a loss of earnings or patronage for any purpose other than compliance with applicable provisions of the Payment in Lieu of Moving and Related Expenses. When the owner of a business that is being displaced takes the position that the business cannot be relocated (or continue to 'operate on the remainder of the property) without substantial Joss of its existing patronage, the RCTC must agree, or prove otherwise. The fact that the owners of a displaced business intend to purchase or establish a different type of business after displacement has no effect on their eligibility for a fixed payment. 3. Requirement Eliminating Chain -Store and Multi -Location 'Businesses (does not apply to farms and nonprofit organizations).; To qualify for this type payment, the business must not be part of , -a commercial rise having 9more than three ,.other ;entities which_ - are not being acquired by the RCTC and which are engaged in the same or similar business. (A business which does not '``contribute materially to the owner's income is not considered "another :entity" and doesnot disqualify the owner from receiving a fixed payment). To be declared- ineligible for a -fixed ,payment; :both: ahe business -being displaced and the similar businesses not being: acquired must have a common ownership. Businesses and corporations are both. -considered to have common ownership even though they are know. by different business or corporate names, if their owners,are substantially the same. 4. Requirement Concerning Time and Location To qualify under this requirement, the business must be operated _ by, the current'owner on the property: being acquired at the initiation of negotiations for the subject property or at the time such property was actually acquired by the RCTC. 5. Businesses Owned by Estates An estate is eligible for a fixed payment when the business owned by the estate is displaced. -85- 177 6. Business Sells After Initiation of Negotiations. If the owner of a business scheduled for acquisition sells the business to another party after negotiations are initiated for the subject property, or after receipt of a "Notice of Intent to Acquire", they will not be eligible for fixed payment. The new owner of the business,if eligible, could qualify for the payment if they continue the business operation on the subject ,property after it is acquired. 7. Displacement Must be Direct Result of Acquisition Business owners cannot qualify for a fixed payment unless they are displaced as a direct result of the acquisition, rehabilitation or demolition of real property for an RCTC project. Two or More Business Operations, Same Site and Same Owner The following are broad guidelines which can assist in making a determination as to the number of actual businesses in one location: 1. When several business activities are located on the same property and operated by the same party, which are -closely related. and compliment each other, they will be considered as one business. This is especially true if it is necessary to combine the _income from :all of the activities to produce a reasonable business profit. 2. If the different activities are not related and if they do not compliment each other, they will normally be considered as separate businesses and the owner will be entitled to separate fixed payments, provided that each business qualifies on its own merits. Other factors to be considered in making a multi -business determination is the extent to which: a) the same premises and equipment are shared, b) substantially identical or interrelated business functions are carried out and business and financial affairs are commingled, c) the entities are held out to the public, and to those customarily dealing with them, as one business, d) the same . person, or closely related persons own, control or manage the affairs of the entities. c. Businesses Affected by Partial Acquisitions The owners of businesses located on parcels which are partially acquired are not eligible for a :fixed payment if they do not qualify as being displaced and are ;physically and legally able to continue their operation on _86_ 178 their remaining property, or if they are able to relocate the business without a substantial loss of existing patronage. Business owners who also own the property on which the business is located cannot qualify for a fixed payment when the right of way payment is adequate to pay for rearranging their remaining facilities to .enable 'them to continue the operation. Business tenants of properties owned by persons who receive a right of way settlement adequate to reasonably "cure" the inadequacies caused by the :acquisition, or who receive a part of the right of way consideration ,themselves, which is adequate to "cure" will not become eligible for this type of payment. If the business is operated at the displaced site solely for the purpose of renting to others, it is not qualified for this type payment. This includes :building or land rentals. Salvage Yards Ownersof legally located and legally operated salvage yards can be paid fixed payments if their business operation meet all eligibility requirements. fixedpayments cannot be made to the owners of illegal -salvage yards Payment Determinations The owners of a displaced business who qualify for a fixed payment are entitled to an .amount equal to the average annual net earnings of their business,: not to 'exceed a maximum >payment of $20;000 or less than $1,000. The term "average annual net earnings means one-half of anynet earnings of the business, before federal, state, or local income taxes have been deducted, during the two taxable years immediately proceeding the taxable year the business is displaced. Interest payments made by a business to the, owners of the :business cannot be included as a part of the average annual -net earnings of the business. Payment Computations 1. Business Operated Two full Taxable Years or More 'Add the net earnings from each of the' two preceding taxable years and divide the total by two. The result represents the: average -87- 179 annual net earnings. This amount will be paid to the owner if it exceeds $1,000, and does not exceed $20,000. If a loss occurred in one year and a gain in the other, the year in which the loss was incurred should be considered as zero income when determining the average net income for the two year period. 2. Business Operated Less Than Two Full Taxable Years Compute the fixed payment by projecting its net earnings to an annual rate. (a) Business Produced Net Earnings During the Two Taxable Years Prior to Displacement Divide the total accumulated net earnings for all 'of the months the business operated prior to the taxable year of . displacement by the number of months it operated during the same period and multiply the result by;12. (b) Business Produced No Net Income Prior to Taxable year of Displacement Compute the payment same way as above, using the total net earnings and total months of operation during the year of displacement. (c) Seasonal businesses Divide the total accumulated net earnings produced during the entire .period that the business .;was.. in .existence (on, the subject site and owned by the relocatee) by the total number of months the business operated during the season, then multiply the result by the number of months of annual open season. (d) Other Situations Which May Require Special Consideration in Determining Representative Annual Net Earnings When unusual circumstances exist which indicate that a different period of time (other than the two taxable years prior to displacement) should be used in determining a business' annual net earnings, seek approval from the ROW Program Manager to use alternate periods. Conditions which may justify an alternate period: O :the relocatee owned the same business while located at a different location during the two taxable year period. (2) The relocatee purchased an existing established business during the two taxable year period:.,. (3) The project activities, i.e., the displacement of the business' tenants, impacted the net earnings of the. business. 7-8.2 Fixed Payments — Farm Operations (49CFR) . Payment Eligibility Requirements For the owner of a . displaced farm operation to be entitled :to a payment, the RCTC must determine: 1. That the farm operation contributes materially to its. owner's income 2..That the farm operation was owned by the relocatee and •existed on the -property being acquired at the initiation of negotiations for the subject property, or at the time such property was actually acquired by the RCTC. 3. That the farm operator has completely discontinued his/her existing farm operation at the present location. In.the :case of a partial acquisition, the farm operation will -be considered to have been displaced if the property remaining after the acquisition is 'no. longer an economic unit for the same type of farm operation that; was being conducted prior to the acquisition. This determination will normally be made during the appraisal process. If the appraisal is not clear concerning this point, the appraisers should be requested to provide addenda expressing and justifying their positions: = if there is .a difference of opinion, the ROW Program Manager will make the determination and the Case''File properly documented. Actual Owner of "Farris Operation Receives Payrnent If a sharecropper or tenant is actually conducting the farming ;operation that is being displaced, he/she is entitled to a fixed payment, ,even though the landowner may share in the profits. Mineral Production and Quarry Operations When ` minerals are :being produced on a, farm ;on a commercial basis and/or when quarrying operations are so conducted, they are to be considered as separate businesses and not taken into consideration:as a part of the farm operation. -89- 181 d. Farm Operations Owned by Estates Farm operations owned by Estates are entitled to this type payment. e. Farm Operations Sold After Initiation of Negotiations Farm operations sold after initiation of negotiations will not be eligible for fixed payment. The new owner of the farm operations, if eligible, could qualify for the payment. f. Payment Determinations The owners of a displaced arm operation who qualify for a fixed payment are entitled to receive an amount equal to the average annual net earnings of the farm operation not to exceed a maximum payment of $20,000 orless .than $1,000. g. Payment Computations Same as subsection 7-8.1.g. 7-8.3 Claim Forms — Business or Farm Operation Fixed Payment Claims Forms for Business or Farm Operation Fixed Payment shall be developed by RCTUs Right of Way. Consultants.. 7-8.4 Displaced Nonprofit Organizations a Payment Eligibility Requirements (49CFR) A. displaced nonprofit organization may .choose__a ;fixed payment of $1,000 to $20,000 in lieu of the payments for actual moving and related expenses and actual reasonable reestablishment expenses, if the RCTC determines that it cannot be :relocated without substantial loss of existing patronage. A nonprofit organization is presumed to :meet this test unless the RCTC demonstrates otherwise. Any payment in excess of $1,000 must be supported by certified financial statements for the two 12-month periods prior to the acquisition. The amount to be used for payment is the average of two years annual gross . revenues Tess administrative expenses. Gross revenues may include membership fees, class fees, cash donations, tithes, receipts from sales or other forms of funds collection that enables nonprofit organizations to operate. Administrative expenses include rent, utilities, salaries, advertising and other like items as well as fund raising expenses. Operating expenses for carrying out the purposes of the nonprofit organization are not included in administrative expenses. b. Claim Form Nonprofit Organizations Fixed Payment -90- 182 A Nonprofit organizations Fixed Payment Claim Form shall be developed by RCTC's Right of Way Consultants. 7-8.5 Time for: Filing "Fixed Payment Claims" b. Operation Displaced From Acquisition Site The eligible owners of a displaced business, farm operation or nonprofit organization which is displaced from the acquisition site can claim their fixed .payment anytime after (1) negotiations are initiated for the ;.real property involved (or Notice of Intent to Acquire), and (2) the operation has been completely, discontinued on the displacement property, but no later than the end of the 18-month period. Business'Operation'Continued on Remainder of Acquisition Site Business owners eligible for fixed payments who elect to continue operating on the remainder of the acquisition site. regardless :of :their substantial loss of patronage can claim their payment anytime after (:1') negotiations are initiated for the real property involved and (2) the area included .'within the right of way acquisition is denied to thebusiness owner, but no later than the end of the 18-month period. Nonprofit organization Continued on Remainder of Acquisition,Site It is not likely that nonprofit organizations which continue :to operate on remainder parcels will qualify for fixed payment; however, should such: situations occur, the instructions in the preceding subsection b. will :ap;ply. 'Substantially Reduced or 'Different Type Farris Operation Continued ;on 'Remainder -Acquisition -Site ,'Farm operators eligible for fixed payments who elect to continue a -substantially reduced farm operation, or a different type farm operation, on . ,the remainder .of :the acquisition parcel can claim their 'fixed payrne.nt anytime after. (1) negotiations are initiated for the real property involved, and . (2)' the area included within :the right of way acquisition is denied, to the farm operator, but no later than 18 rnonths. Owner of Displaced Operation is "Subsequent Occupant Applicable instructions in, preceding subsections a. through b. apply when ;subsequent :occupants are eligible for fixed "payments; however; claims from subsequent occupants cannot be paid until after the real property � involved has been acquired by :the RCTC` Operations owned by subsequent occupants must be in operation on i the .site at � the time it is acquired by the RCTC. If not, the, owner is not -eligible. -91- 183 Section 7-9 7-9.1 General Policy CHAPTER VII RELOCATION ASSISTANCE Purchase Price Differential Payment Individuals and families displaced from dwellings including condominium and cooperative apartments they ,owned andoccupied for at least 180 consecutive days prior to the initiation of negotiations for the property are entitled to a _92-. 184 replacement housing payment, including a Purchase Price Differential Payment, to enable them to purchase replacement housing. They must meet the payment eligibility requirements outlined in the this Section. The payment, .including reirnbursement for incidental expenses incurred in the purchase of replacement housing as discussed in Section 8-10 and compensation .for loss of favorable financing as discussed in Section 8-11, cannot normally exceed $22,500 NOTE A: Exceptions to $22,500 Maximum Payment Limitation In some instances the addition of incidental closing or increased interest coststo the basic replacement housing payment will cause the total to exceed $22,500. Situations will also :be encountered in which the RCTC will not be able to make the required comparable Decent, Safe and Sanitary replacement housing available to a relocatee within the maximum payment limitation. When these situations are encountered,` advise the ROW Program Manager, in writing, and request authority to pay the total under the Last " Resort Housing Program. Replacement housing claims in excess of $22,500 should include ;the a notation of the back .of . the form "authority to process payment- in excess of $22,500 9yranted b the Right of Way Program manager letter dated ; 9 y 9 g NOTE B: Long -Term Owner -Occupants Rent Replacement Dwelling Unit Eligible long-term owner -occupants who rent instead of -purchasing DS .& replacement housing are entitled to rent supplement payment computed in the manner discussed in Section 8-1. The rent supplement cannot exceed $5,250. a. Advance Relocation Housing Payments If eligible relocatees request it, they may receive their relocation housing payment at the closing on the replacement home, provided that: 1. The relocatees' request is made in writing. 2. The relocatees have :entered into a, Purchase Agreement ` or some other written agreement to purchase, for a specific and available DS & S replacement dwelling. 3. The relocatees have a loan commitment from a qualified lender which will enable them to purchase the replacement. 4. If owner -occupied and the RCTC has acquired the existing dwelling. Advance relocation housing payments will not be 'processed unless and until all four of the preceding requirements have been satisfied and the Case File documented accordingly. If; in -the opinion of the Right of Way Manager, it- is in the .best interest of RCTC the _Right of Way Manager may waive the above' requirements.! -93- 185 b. Replacement Housing Escrow Agreements Escrow Payment is desirable in making an advance payment if the seller of the replacement dwelling is agreeable to closing the transaction and permitting the relocatees to occupy the dwelling prior to receipt of the entire purchase price, with the provision that the relocation payment will be placed in escrow for immediate delivery after the relocatees' purchase and occupancy eligibility requirements are fulfilled. 7-9.2 Payment Eligibility Requirements —180-Day Owner -Occupants a. Ownership and Occupancy Requirements — Subject Property b. The individual or family being displaced must have owned and occupied their dwelling unit for at least 180 consecutive days immediately prior to the initiation of negotiations for the subject property or, if they are provided a "'Notice of Intent to Acquire" by the RCTC, they must have owned and occupied it for at least 180 consecutive days prior to the date they actually vacated the property if it was vacated prior to the actual initiation of negotiations. When a "Notice of Intent to Acquire is used, the 180-day period is measured from the date that negotiations are initiated for the subject, or from .the date that it was vacated by the owner -occupant, whichever is earlier. Ownership and Occupancy Requirements at Initiation of °Negotiations . To qualify for this type payment, the relocatees must have owned and occupied the displacement property at the :initiation of negotiations, or if they are .provided a "Notice of Intent to, Acquire", ,:at the .time they receive, the notice. If individuals and families whose homes were damaged or destroyed by a major disaster were not able to reoccupy their dwellings by the time negotiations were initiated for the property, subsection 8-1.25 will apply. c. Property Must Be Acquired By RCTC From Qualified Owners Displaced owner -occupants will not be eligible for a relocation housing payment if they sell the subject dwelling to any party other than the RCTC after the initiation of negotiations for the parcel. The "other party" who purchases the dwelling will not be eligible for the payment. d. Displacement Must Be. Necessitated By Right of Way Acquisition 94 - 186 The displacement must be necessary due to the actual acquisition of the subject dwelling by the 'RCTC, or, due to its being rendered legally or physically landlocked and uninhabitable by the acquisition. Subject Must Be Owner's Principal Residence A replacement housing payment cannot be made unless the dwelling acquired as right of way by the RCTC or landlocked, is the owner's permanent or customary and usual residence and/or legal place of residence. :Decent, Safe and Sanitary Replacement Must Be Purchased and Occupied Within: One Year The relocatees must purchase and occupya replacement dwelling which :meets DS & S standards within a one-year period beginning on the dater 'of: the date the relocatees or their Escrow Agent receives payment from the RCTC for the acquired dwelling; or in case of condemnation, the date the final judgment is paid into court; or the date the relocatees move from the displacement dwelling. . Displaced OwnerOccupies Previously Owned Dwelling as Replacement ` Displaced owner -occupants of a residential dwelling unit who move to and occupy DS & S replacement dwelling that they had previously owned may be eligible for a replacement housing payment :provided that the current value of their interest in the replacement dwelling unit is equal. to the entire amount paid for the subject property plus their computed replacement housing -payment- offer. Relocatee Purchased Replacement in Partnership With Other Parties If qualified relocatees purchase their replacement dwelling in partnership with other parties who did not own an interest in and occupy the subject dwelling, they must invest an amount equal to the entire amount paid 'for. the subject property plus the computed replacement housing payment``in the purchase of their interest in the replacement. Deadline For Filing Claims Replacement housing claims must be filed within six (6) months after the. expiration of the 'one-year period. This deadline may be extended, for good cause, with the concurrence of the ROW Program Manager. 7-9.3 Amount of Payment (49 CFR 24.401 (b))—180-Day'Owner-Occupant -95- 187 "The replacement housing payment for an eligible 180-day homeowner -occupant may not exceed $22,500. (see also Section 24.404) the payment under this subpart is limited to the amount necessary to relocate to a comparable replacement dwelling within one year from the date the displaced homeowner- occupant is paid for the displacement dwelling, or the date a comparable replacement dwelling is rnade available for such person whichever is Later. The payment shall be the sum of the three components of the Replacement Housing Payment for 180-day Owner Occupants: a. PRICE DIFFERENTIAL: The amount by which the cost of a replacement dwelling exceeds the acquisition cost of the displacement dwelling, as determined in accordance with paragraph (c) of this section; and b. INTEREST DIFFERENTIAL: The increased interest cost and other debt service costs which are incurred in connection with the mortgage(s) on the replacement dwelling, as determined in accordance with paragraph (d) of this section; and c. INCIDENTAL CLOSING COSTS: The reasonable expenses :incidental to the purchase of the replacement dwelling, as determined in accordance with paragraph (e) of this section." 7-9.4 Payment Computations A replacement housing payment must be for the lesser of an amount equal to the difference between the final amount received by eligible relocatees in payment for their_ displacement -dwelling _(prior to any deductions covering the value of salvage retained by the owners) and either -the actual amount paid for a DS & S replacement dwelling by the relocatees (not including incidental closing costs and increased interest payments), or the amount determined by the RCTC as necessary to purchase the most nearly comparable DS & S replacement dwelling available. The payment, together with authorized incidental closing costs related •:to the. purchase of_the replacement andincreased interest costs must ,not exceed._ $22,500. _ If the replacement dwelling is a mobile home, do not include the cost of furniture and appliances therein as part of the "consideration paid", even though they were purchased with the mobile home as part of a ``package" unless such furniture and/or appliances are built-in and are considered to be an integral part of the mobile home. - NOTE A: Correction of DS&S and/or Functional Similarity Deficiencies If a relocatee whose replacement housing payment offer was based on a comparable DS&S dwelling purchases a different replacement dwelling that has DS&S deficiencies and after purchase corrects those deficiencies, the documented actual . expenses, may be considered as having been spent in the purchase of the property. The actual cost of correcting the DS&S deficiencies can be added to the purchase price of the replacement. However, under no 96 - 188 conditions would a relocate receive more than the differential between a comparable OS&S dwelling and the acquired dwelling. Relocatees who acquire a replacement dwelling that is not functionally equivalent to their displacement dwelling can include, as a part of the replacement purchase price, any documented expenditure they make in improving the replacement to a level &Junctional similarity. The cost of improvements to the replacement dwelling other than those required to eliminate DS&S deficiencies cannot be included as a part of the purchase price of the replacement dwelling. NOTE B: Relocatee Moves to and Occupies Previously Owned Residence Eligible .disp'laced residential owner -occupants who move to and occupy a previously owned DS&S dwelling as their replacement dwelling :willbe entitled to a replacement housing payment. The payment will be based on the 'lesser of the difference between their right of way payment for the displacement property, and (1 ) the adjusted price of ..the selected comparable that was used in computing their RHP offer, or (2) the current value of the previously owned replacement dwelling. a Comparable Methods of Computing Replacement Housing Payments i ., When an owner -occupied dwelling isacquired, the :maximum amount,that: will be due the owners as a replacement housing `,payment must be determined if they meet all of the payment eligibility requirements for this type of payment. Determination of the most comparabledwelling will be made by the Relocation Agent. The goal of RCTC is: to refer all relocates to at least three comparables. However, only one comparable is :required. Entire Taking of single -Family Dwelling The entire offer made by the RCTC to the owner -occupants for their residential property is deducted from the listing price of `the most nearly comparable replacement available to deternriine the maximum additional amount necessary to enable owners to purchase a replacement property. This amount . is the maximum replacement housing payment that the owners may be eligible to receive. . Taking Includes All Residential Improvements and Supporting Land Plus Other Lands An, appraiser ' should "carve our from the approved .: negotiated :offer , pp the portion that is chargeable to the residential improvements, and -97- 189 supporting land area. Only this portion of the RCTC's offer will be used in determining the replacement housing payment. 3. Partial Takings of Residential Properties — Dwelling Located On Normal Size Residential — No Other Land Involved The RCTC must offer to acquire remainders that are determined, through appraisal review, to be uneconomic remnants. The value offered for the uneconomic remnant will be specified and added to the approved negotiating figure and included in the computations of a replacement housing payment. If the owner elects not to sell the uneconomic remnant, the replacement housing payment will be recomputed to exclude the value of the remnant. 4. Partial Taking of Residential Property Plus Other Lands (Owner- Occupant is Totally Displaced) The appraiser should break dbwn the approved negotiating figure to show the portion thereof that is chargeable to the residential improvements and supporting land area. Damages to any remaining residential improvements and/onto the remainder of the residential land area, including temporary easements` are to be included in the portion of the offer that is chargeable to the residential: improvements and supporting land area. To arrive at the maximum replacement housing payment, deduct the portion of the approved right of way offer that is chargeable to the residential improvements and supporting land area from the adjusted price of the most nearly comparable DS & S replacement _property available.: "Supporting Land Area" refers to the typical size building lots on which a dwelling is located. 5. Dwelling On Land With Higher and Better Use The fact that a dwelling is located on land with a higher and better use, and that the offer is based on higher than residential land value, has no effect on the RHP computation procedure. Use the same procedure that would be applicable if the dwelling were located on land with a normal residential value. 6. Joint Residential and Business Use 98 _ 190 If will be necessary for an appraiser to prorate the RCTC's offer to show the portion chargeable to the residential unit and if applicable to its supporting land area. The portion of the offer chargeable to the residential unit and supporting land will be deducted from the adjusted price of a DS & S replacement dwelling 'unit functionally equivalent to the portion of the subject property that was used for residential purposes. Multiple Occupancy of Same Single -Family Dwelling Unit The procedure discussed herein are applicable in computing payment offers for the eligible occupants even though sorne of the families or separate individuals involved do not meet occupancy time requirements or for some other reason are not eligible for a replacement housing payment. If`two .or more eligible individuals and/or families which = occupy the same single-family dwelling maintain separate households, they will: . be entitled to separate replacement housing payments. If the individuals and/or families do not maintain separate households, they will be entitled to only one joint replacement. housing payment if a comparable (or better) DS & S replacement dwelling is available to them. The one payment can be prorated between eligible :,individualsand/or: families if they . choose . to relocate into separate DS & S` replacement -dwellings. If a comparable DS & S dwelling is not available which will enable them to relocate together, they will be entitled to separate -replacement housing payments. Multi -Unit Dwelling Complexes If the owner of a multi -unit dwelling occupies one of the units therein being acquired, their maximumreplacement housing -payment will be computed as follows: An appraiser must .prorate the RCTC's total offer for the property to determine' the portion that is chargeable to the specific unit occupied by the owners. Locate the most nearly comparable dwelling If the same type complex is not available, locate` the most nearly comparable complex of the next lowest density that is available. If the selected comparable is a single-family residence, deduct the prorated portion of the offer that is chargeable to . the p occupied unit from the adjusted rice of the selected p 1 comparable. The resulting 'figure will be :the maximum replacement housing payment. -99- 191 d. If the selected comparable is a multi -unit complex, prorate the adjusted price of - the comparable to determine the portion that is chargeable to the specific unit that is most comparable to the unit occupied by the relocatees in the acquisition dwelling complex. Deduct the prorated portion of the offer that is chargeable to the unit occupied by the relocatees in the acquisition complex from the prorated portion of the adjusted price of the comparable to determine the maximum replacement housing payment. To qualify for the computed replacement housing payment, the relocatees must spend an amount equal to the prorated value assigned tothe occupied unit plus the total replacement housing payment. 9. Mobile Homes If the displaced owner of a mobile home qualifies for a 'replacement housing payment covering both the mobile home and supporting land . area, compute the maximum payment similar to owner - occupied single family dwellings. If a comparable DS & S mobile home and/or site is not available, it will be necessary to calculate the payment on the basis of the next higher type of dwelling that is available and meets applicable DS & S standards. a Payment Covers Both Mobile Home and Land The > displaced owner -Occupant of a mobile home can' be paid a replacement housing payment, not to exceed $22,500, covering both the mobile home and the land upon which it is located when: 1.. a mobile 'home has been. classified. as;real .,property and is. acquired as such,together with the land, 2. both mobile home and land have been owned and occupied by the relocates for at least 180 consecutive days prior to initiation of negotiations 3. all other eligibility requirements have been met. The replacement housing payment will be computed in the same manner as a conventional dwelling. The determination of whether a mobile home is, or is not, real property must be determined during the appraisal process and approved by RCTC Legal Counsel. 10. Payment Covers Mobile Home Only The displaced owner -occupant of a mobile home which is located on land .belonging to another party can be paid a - 100 - 192 replacement housing payment covering the mobile home, but not the land, when: 1. a mobile home has been determined to be: real property, 2. the owner has owned and occupied the mobile 'home while located on the site from which it is being displaced for the required 180-day period, and 3. all other eligibility requirements have been met., The owner of the mobile home could also be paid the equivalent to a rental subsidy payment covering the site , if they, meet the eligibility requirements for the :,.separate payments involved. Payment Covers Land Only (Mobile Home Site) The 'displaced owner -occupant of a mobile horne can be paid a'replacement housing payrnent covering. the .land on which the mobile home is located when: a. a mobile home was not considered to be a part 'of'the real . property and was not acquired, b. the mobile home was occupied by the relocates on land he/she also owned (subject site) for at least 180 consecutive days prior to the initiation of- negotiations, and_. c. all other eligibility requirements have been met. 7-9.5 Insurance Proceeds Due to Catastrophic Occurrence (49 CFR 24.401.(c)(3)) " (3) Insurance Proceeds. To the extent necessary to avoid: -.duplicate compensation, the 'amount of any insurance l<proceeds received by a- person in connection with a doss to the displacement dwelling: due to a catastrophic occurrence (fire, flood, etc,) shall be included in the acquisition. cost of ` displacement of dwelling when computing the price differential."; 7-96 Owner Retention of Displacement Dwelling :(49 CFR 24.401(c)(4)) "(4) Owner retention of displacement dwelling. If the owner retains ownership ,of his or her dwelling, moves it from the displacement site, and reoccupies it .on a replacement :site, the purchaseprice of the replacement 'dwelling shall be the sum of: a. c.: Cost :of moving:- and restoring the dwelling: in, a condition ,comparable : to that: prior to the move; and The cost of rna_king:.the unit a decent, safe, and sanitary replacement dwelling defined at Section 24.2(4; and - The current fair' market value for residentiai' use -.of the replacement site (see Appendix A of this part, Section 24:401(c)(4)(iii), unless the claimant - 101 - 193 rented the displacement site and there is reasonable opportunity for the claimant to rent a suitable replacement site; and d. The retention value of the dwelling, if such retention value is reflected in the "acquisition cost" used when completing the replacement housing payment. The combined cost of relocation, rehabilitation, and improvement to DS & S standards are eligible for reimbursement to the extent they do not exceed the maximum price differential entitlement based on comparable replacement properties. This may. include construction features such as garages if they cannot be moved. 7-9.7 Replacement Housing Comparison Record a. When Prepared The Relocation Agent must make eligible owner -occupants a written replacement housing payment offer at the initiation of negotiations. A Replacement Housing Comparison Record will be used in establishing this offer. For parcels that are included in the Critical path, the Replacement Housing Comparison Record should be completed during the period that the appraisals of the parcel are being reviewed so that negotiations can be initiated immediately after a negotiating figure is approved.. Selection of "Comparables" In every case, the comparables used in the Replacement Housing' Comparison Record must: 1. Is currently available for purchase on the market. 2. Meet DS& S requirements. 3. Meet the definition of Comparable Replacement Dwelling. 4. Be the three dwellings that are most nearly "comparable" to the subject than any other available properties which meet the above requirements. Comparables must be "functionally equivalent" to the displacement dwelling with 'particular attention to the number of rooms and gross living space. The comparable must perform the same primary function as the displacement dwelling and enable the relocatees to maintain a similar lifestyle in the dwelling as before displacement. It is desirable that the comparable replacement be physically similar to the subject in regard to age, type of construction, room arrangement, or minor attributes. Gross living space . _ is based on outside measurements excluding garages and unfurnished areas. 102 - -19:4 c. Advanced Replacement Housing Payments in Condemnation Cases The same procedure is applicable in carrying out the various phases of the Relocation Program when condemnation is involved except when the owner of a residential property being acquired through condemnation is entitled to a replacement housing payment. Relocatees who are entitled ;to replacement housing payments and whose properties . are being acquired .through condemnation can elect either .of the; two following options: 1. Enter into a Condemnation Agreement and. receive their re:placernent housing payment prior to final adjudication of -the condemnation case; or 2 Wait until final adjudication of their condemnation case and then filea replacement housing claim. Condemnation agreements are not applicable when.a long-term owner elects to rent rather than purchase replacement, ousing.., NOTE A: If the first option is chosen, the following ; procedure is applicable. The agreement can be signed: 1. after the amount determined by the Court to be the Probable Just Compensation is. paid into court, _ after the relocatees have purchased and occupied a DS & - replacement dwelling and are otherwise eligible for the payment, and 3. prior to final settlement of their condemnation case. When a condemnation agreement: is . used,- .;the replacement housing payment must: be recomputed after the Court Order.. for `,;Probable Just Compensation has been ordered and prior to: execution of the agreernent, and shall be the difference between the 'portion of the Probable Just Compensation that is chargeable to -the subject residential property' and the >actual amount ,paid for a DS & S. ;replacement _dwelling by; the -: relocatees or the difference between the Probable Just Compensation and the adjusted price of the most nearly comparable DS & S replacement housing available, whichever is the less. Owner -occupants whose residence was acquired by condemnation can be; reimbursed for their -eligible incidental closing: costs and paid any increased interest payment without the need: for a condemnation agreement. NOTE B: If the owners chose to wait until final settlement of :their condemnation case :before filing a claim for their replacement housing payment,, deduct the portion of the final legal settlement.that is chargeable to the: residential . property from the 'adjusted ` price of the most nearly - 103 - 195 comparable DS & S replacement available as determined on the "Replacement Housing Comparison Record" and in a separate computation, deduct the same portion of the final legal settlement from the amount actually paid for the DS & S replacement property purchased and occupied by the relocatees. The relocatees are entitled to a replacement housing payment equal to the lesser of these two computed figures. 7-9.8 Replacement Housing Payment Claims Replacement housing payment claims must be filed within the time period as stated in subsection 7-9.2.i., but not before the relocatees have actually purchased and occupied a DS & S replacement dwelling, unless an advance replacement housing payment is granted, and not before the RCTC has acquired the subject right of way parcel through negotiated settlement or condemnation. CHAPTER VII RELOCATION ASSISTANCE Incidental Closing Costs 7-10.`1 Definition of Incidental Closing Costs (49 CFR) The incidental closing cost payment is the amountnecessary to reimburse qualified relocatees for the actual and reasonable costs incurred by.th'em incident' to the purchase of their replacement dwelling. Reimbursable incidental closing costs may include the following items, if the amounts involved are reasonable and if such costs are normally paid by the buyer. 1. legal, closing and related costs including title search, preparing conveyance contracts, notary fees, surveys, ;preparing drawings or plats, and charges incident to recordation; 2: lender, FHA or VA appraisal fees 3. lender, FHA or VA application fees 4. inspections fees, such as structural inspection, termite inspection, asbestos inspection, credit report fees, ..;title: insurance,: not to exceed the -._costs .,that would have: been involved: in the purchase of the selected comparable on which the RHP was based, escrow fee, based on comparable sales or transfer tax (not to exceed the costs for a comparable replacement dwelling), Professional home inspection, certification of structural soundness, and termite. inspection, 11. other costs which the ROW Program Manager agrees to be incidental to the :purchase. Incidental closing costs must not include any prepaid expenses, suchas, prepaid taxes, prepaid :insurance or prepaid interest. The costs incurred in securing 'mortgage financing in cases where there is not mortgage on the property acquired and any additional costs in securing large mortgage on the replacement dwelling than existed on the acquired property are not reimbursable. Appraisal fees and survey fees may, however, be reimbursable. Reasonable cost of transferring a mortgage when an existing. mortgage, on a replacement property is assumed by a relocatee is eligible for reimbursement as incidental closing costs. Reasonable refinancing expenses paid by relocatees who retain' and move their existing dwellings to their remaining land" or who build replacement dwellings on :'their - 105 - 197 remaining properties are reimbursable. One-time mortgage default . insurance premiums are reimbursable (limited). d. Loan Service Fees and Points, loan origination fees can be included in increased interest and down payment assistance (limited). 7-10.2 Payment Eligibility Requirements Any relocatee who meets the eligibility requirements for either a replacement housing payment, or down payment assistance is entitled to an incidental -closing cost payment. 7-10.3 Claim Forms If the relocatees' eligibility for an incidental closing cost payment is based on their eligibility for a replacement housing payment, incidental closing costs: must be included in their Replacement Housing Claim. If their eligibility for the closing cost payment is based on their eligibility for down payment assistance, the incidental closing costs must be included in their Down Payment Assistance Claim. CHAPTER VII RELOCATION ASSISTANCE Section 7-11 Increased Interest Payment 7-11.1 General Policy Increased interest payments are available to eligible displaced ;long term owner. occupants of residential property. These payments are intended to compensate owners: for the additional expense that may be encountered due to a ;higher interest rate for a new mortgage on a replacement residential property. The payment will :be the amount which will reduce the :balance on a new mortgage to an amount which could be amortized with : the same monthly payment for principal and interest as that for the mortgage(s) on the displacement dwelling. 7-11.2 Payment :Eligibility Requirements (49 CFR) To be eligible, all of the following conditions must exist: 2 The relocatee must have been an owner -occupant for more than 180 days prior to_.:the_ date of initiation of negotiations or the date. of the Notice of: Intent to Acquire. The relocatee must have purchased and occupied a suitable .replacement dwelling within the prescribed time limits. The mortgage or contract of sale must be bona fide and have been a valid lien for not less than 180 days prior to the date of initiation of negotiations or date of -the Notice of Intent to Acquire: All mortgages shall be used to compute the payment. There must be a mortgage or contract of sale on the replacement dwelling. Mortgages or similar notes used to purchase mobile homes are mortgages for the purpose of this procedure. Temporary construction loans and short-term notes covering the period relocation payments are being processed will not be considered on any increased interest computation. 7-113 Payment Computations When to Compute Payments Displaced . owners must be advised _ of . the estimated amount of .this payment and conditions that must be met to receive it. This: must be done as soon as owners provide the necessary information' on their existing mortgage to the Relocation Agent. Displaced owners .will receive an - 107 199 eligibility notice which advises them to contact the Relocation Agent immediately after they have signed a contract to purchase their replacement residence to obtain an estimate. Payments Computed By Whom The Relocation Agent is authorized to compute increased > interest payments and approved by the ROW Program Manager. c. Payment Computation Relocatees are entitled to an increased interest payment if the interest rate applicable to the mortgage on their replacement property has been increased above the rate charged on the mortgage on their existing residential property. Increased interest payment computations are based on the remaining term of the existing mortgage or on the actual term of the new mortgage, whichever is less, and on the unpaidbalance of the existing mortgage or on the actual amount of the new mortgage, whichever is less. Relocatees are also entitled to reimbursement for the actual amount they paid as "points" on the amount refinanced and for any amount paid by them as an origination or service fee. Relocatees must provide Relocation Agent with the following documents; 1. for estimates or payments, a copy of all Notes and 'Deeds of Trust and current payoff amounts on existing mortgages on the subject property, 2. for payments, a copy of the loan application and commitment 3. for payments, a copy of all Notes and Deeds of Trust on new mortgages on.the.replacement property, 4. for payments, a copy of estimated closing costs, 5. for payments, a copy of the closing statement covering the replacement property purchase which clearly reflects any origination or loan service fees and/or any "points" paid by the relocatee. 7-11.4 Claim Form The increased interest payment will be a part of the Replacement Housing Claim Form. If the replacement loan rate is lower than displacement loan rate, then calculate for "points only" and pay as incidental expense. CHAPTER VII RELOCATION ASSISTANCE Section 7-12 7-12.1 General Policy N Individuals > and ':families displaced from dwelling units they have rented and occupied for not less .than 90 consecutive days prior to the initiation of negotiations for the parcel, displaced short-term owners as defined in subsection 8 1.3.q., and displaced: Fong -term owners who rent : rather :than ` purchase replacement ::housing, are entitled to a rental subsidy payment if, they .meet the payment eligibility requirements outlined in this Section. When displaced tenants are involved, payments of this type are based either on the,: increased monthly rental costs above the rental they were paying for the unit acquired that they would have to pay over 42 months for an available comparable DS & S replacement dwelling unit, or the increased rental for 42 months that ,the.: tenants actually pay for their replacement dwelling,_; uh!t, whichever is less. Rental Subsidy Payments For owners who rent rather than purchase a replacement dwelling, the same principle applies. The payment will be based on either the difference between the :economic rental fee of the subject dwelling and 'the actual rental fee charged for the most .nearly comparable DS & S -replacement dwelling "available," or the_ differencebetween the economic rental fee and the actual rental fee paid for the replacement unit, whichever is less. Rental subsidy payments cannot normally exceed $5,250.- The total amount due will be paid in one. lump sum unless the RCTC determines that it should be made in installments. 7=12.2 Payment Eligibility' Requirements Tenants Prior Occupancy Requirements The: individual or family being displaced must have rented and legally occupied the subject dwelling unit for at !least 90 consecutive days immediately ..prior to the initiation of negotiations for the property, or if they are provided a "Notice of Intent to.Acquire",:they - 109 - 201 must have rented and occupied it for at least 90 consecutive days prior to the date they actually vacated the property if it was vacated prior to the actual initiation of negotiations. If any doubt exists concerning the actual length of time tenants occupied a subject dwelling, the date of occupancy should be confirmedby their landlord and the file documented accordingly. When an owner -occupied mobile home that has been classified as personal property must be removed from a rented site, the site occupancy date is the controlling factor. Relocatees must have occupied a mobile home on the subject site for the required 90-day period. If both the mobile home and site are rented, the relocatees' rental subsidy :payment will be based on the rental fee of both the mobile home and site for the required 90-day period. Consecutive occupancy of other sites (within the displacement property) can also be considered when determining the relocatees' occupancy. period. In determining the applicable occupancy period of a relocatee in a multi -unit residential complex, it is . permissible to consider consecutive occupancy of other units which are being acquired or demolished due the. an RCTC project. Occupancy Required At Initiation of Negotiations The tenants must have been in legal occupancy of the subject dwelling unit at the initiation of negotiations for that particular parcel, _or. if :they areprovidedaJ`Notice of Intent to Acquire", at the. _ time they receive the notice. 3. DS & S Replacement Must be Rented and Occupied Within One year The relocatees must rent and occupy a DS & S replacement dwelling within one year after they move from the subject dwelling. Owner -occupants must rent and occupy DS & S replacement within one year after the later of (a) the date they receive final payment for the displacement dwelling, or (b) the .date they move from the displacement dwelling. This one-year time period may be extended, within prior ROW Program Manager approval, for good cause. 4. Replacement Must Meet DS & S Standards - 110 202 A relocatee must rent and occupy a replacement dwelling that meets decent, safe and sanitary standards, as defined in subsection 8-1.6.j., to be eligible for rental subsidy payment. Short -Term Owners Short-term owners who occupied their displacement dwelling for at least 90 consecutive days and who elect to rent rather than purchase a replacementdwelling are eligible for a rental subsidy payment if they meet ':the same requirements set out in the preceding subsection, 8-12.2.a.1 through 4 for a tenant except that the one-year period .allowed for; renting and occupying a replacement will begin on the :later of (a) the date on which the owners, or their Escrow Agent, receive their right.: of way payment from the RCTC when negotiated ,settlements are involved, or in case of condemnation, the date the Court: ordered Probable Just Compensation, stipulated settlement, or .jury award is paid' into court, or . '(b). the dateon which they move from the displacement dwelling: Long -Term Owners Long-term owner -occupants who are eligible for a replacement housing payment can elect to rent in lieu of purchasing a replacement dwelling unit and qualify for a rental subsidy payment provided that they rent and occupy DS & S replacement within the required one-year period. The one= ear- period for renting and occupying re - lacement- is measured --in the; - year- p - 9 PY 9� p ,. same manner as set out in the preceding subsection for' short-term` owners. If the relocatees later decide to purchase a replacement within ;the original one-year- period, they can do so and, claim., a replacement housing Pa ment. The amount of any rental'subsidY-payment previouslypaid must - be deducted_ from the replacement housing payment, incidental closing costs and increased interest payment. Sleeping 'Room Displaced tenants of sleeping rooms who meet' the payment.. eligibility requirements outlined in subsection 8-122.a. are entitled to a rental subsidy. payment. Deadline;For Filing Claims Rental subsidy payment claims must be filed no later than six months lafter the expiration of the one-year period. This time period may be extended, for good .cause, :with concurrence from the ROW Program Manager. 7-12.3 Computations .- Rental Subsidy Payments - 111 - 203 a. information Necessary to Compute Rental Subsidy Payment Offers 1. Existing Rental Rate Determine the average monthly rental rate being paid by relocatee during the three months immediately prior to the month in which RCTC initiated negotiations for the subject property or when the tenant received a Notice of Intent to Acquire and vacated the subject unit prior to the initiation of negotiations, whichever came first. The existing rental rate shall include the any rent supplements supplied by others (such as government subsidies), when, by law, such supplement is to be discontinued upon vacation of the subject property. A copy of the tenant's lease agreement or rent receipt should be filed in the. Case File. Economic Rental Rate The term "economic rent" as used herein is the normal monthly rental fee being paid on the open market for similar dwelling units within the area of displacement. If the relocatees' existing average monthly rental rate is substantially ._less _ than _the economic, rent applicable to _ the displacement -unit, the economic rent will be used In ` the rental supplement payment computations in lieu of the "average monthly rental rate." This policy should not be applied if an unfair hardship is placed on the relocatee. Rental Fee _Charged for Most Nearly :Comparable .,Unit Relocatees should be offered the same type of replacement unit as that from which they are displaced; however, this not mandatory if it is not practical to do so if the selected replacement is functionally equivalent to the displacement unit. Utility Services Adjustments Unless all utilities are provided by the landlord in both the displacement dwelling and in the selected comparable, the estimated average monthly costs of those utilities must be added to the basic monthly cost of the comparable should a comparable be selected which provides the same utilities as the subject dwelling unit. Utility cost estirnates can be determined through one of the following ways: 112 - 204 (a) Average of actual utility costs over the past 12-month period (based on bills paid). (b) Obtain an average utility cost from the utility company 'based on square footage and number of family members. (c) If the annual utility costs are known for a unit, it may be practical to estimate the cost of the utility at the other unit by comparing the two units and adjusting the known costs for difference in unit size, physical features, appliance, etc. Furniture Provided by Landlord The general procedures in the preceding, subsection 4 relating to utilities also apply when furnishings are provided by the landlord in. the displacement dwelling, but not in the selected comparable. if possible, comparables should be selected which provide the same furnishings to the relocatee. Furnishings can be provided to the relocatees at the replacement site in either of the following two methods that is less costly: (a) Rent comparable furnishings and add the monthly rental ,of the furnishings to the monthly rental of the replacement dwelling when computing the rental supplement offer. Refundable deposits on :such rentals are not compensable (b) If rental furnishings are not available, or ` if the rental. procedure is more expensive over a 42-rnonth period,add the cost of purchasing comparable used furnishings to the rental subsidy offer. Rental Subsidy Computation Sheet A Rental Subsidy Computation Sheet "shall:. be developed and used in computing all rental subsidy payrnent offer: 1. When Prepared The computation sheet should be ';completed . during the time appraisals of the subject property are being reviewedor soon 'after the negotiations are initiated.. for, the property. A written rental subsidy payment offer must be made to eligible relocatees within forty (40) days after such negotiations are initiated. Who Prepares The Relocation Agent shouldcomplete the computation; sheet. The completed form must be approved by the ROW Program Manager. - 113 - 205 3. Preparation The rental subsidy payment offer, not to exceed $5,250, is computed by subtracting the lesser amount arrived at in either (a) or (b) below, from the total amount necessary to rent the most nearly comparable DS & S replacement dwelling unit for the next 42 months. (a) 42 times the average monthly rental paid plus utilities by the relocatee during the last three months, or (b) 42 times the economic monthly rental rate plus utilities. If the average monthly rental being paid substantially less than the economic rate, or, if an owner elects to rent rather than purchase a replacement. (c) In situations when the family is low income as defined by Department of Housing and Urban Development and found in. its Annual Survey of Income Limits for the Public Housing and Section 8 Programs: (See http://www.fhwa.dot.gov/realestate/ua/ualic.htm) 42 times 30% of adjusted gross monthly income NOTE A: Computed Payment Exceeds $5,250 If .the only .comparable DS & _S replacement rental unit available required rental subsidy payment in excess of $5;250 or -if there are no acceptable comparables available in the area, the entire payment must be made under the Last Resort Housing Prograrn. This program will not be applied to Tong -term owner -occupants who desire to rent rather than purchase replacement dwellings if comparable DS.& S replacement dwellings are available to them: for purchase through the replacement housing payments. If a short-term owner elects to use rental subsidy as a down payment, compute a replacement housing payment. The down payment assistance cannot exceed the computed RHP amount. NOTE B: Relocatee Owns Pets or Needs Seeing Eye Dogs It is preferable that selected comparables also permit pets; however, it is not mandatory if the most nearly comparable does not accept pets. Seeing Eye Dogs are not considered pets under this policy. Comparables must be selected which will accept relocatee's Seeing Eye Dogs. NOTE C: Relo.catee is Disabled 114 - 206. 5. To meet DS & S requirements, the selected replacement dwelling unit for a disabled person must be free of any barriers which would preclude reasonable ingress, egress and use of the unit by the relocatee. If a suitable replacement cannot be located which will accommodate the relocatee, it is permissible to increase; the monthly rental of an otherwise comparable ` replacement unit to. compensate the owner for the cost of rearranging the unit as necessary to meet DS & S standards. Multiple Occupancy of Same Dwelling °Unit (a) Comparable DS & S Unit Available If a comparable or better DS &S replacement dwelling unit. is available for rent within the maximum ; $5,250 rental subsidy payment limitation when two or ` more eligible individuals or families who do not maintain separate household are displaced from the same single-family dwelling, only one rental subsidy payment will be made. (b) Comparable DS & S Dwelling Unit Not Available If comparable or better DS & S unit is not available, each eligible individual and/or family involved will be entitled to a separate rental subsidy payment offer. Tenant With Less Than 90-Day Occupancy Occupants and Subsequent. See subsection 5-1.6.c.2 and ,3. If an affordable replacement is not available, it will be necessary to present the relocatees a rental subsidy payment offer if the comparable„ rent, including utilities, exceeds the monthly rental, including utilities, of the displaced dwelling. Tenant Makes Subsequent Moves Within ;First Year After Original Displacement Relocatees' payment amount will not be recomputed or changed even though they pay a different monthly rental fee, either higher or lower, for the subsequent replacement unit. This policy applies regardless as to whether the subsequent :move occurs within, ;or after, the one-year period. Rental Fee: For Replacement Unit Increased by Landlord - 115 - 207 If the monthly rental fee for an occupied replacement rental unit is increased after the relocatees receive their rental subsidy ,payment, no additional payment will be made by the RCTC to cover the increased monthly rental expenditure. This policy applies regardless of whether the rental fee was increased within the first year after the original displacement or in subsequent years. Relocatee :Displaced from Conventional Dwelling or Mobile Home Becomes Occupant of Rest Home The payment is computed by using the portion of the monthly rest home fee chargeable to basic "room rent" and utilities as the replacement rental fee. Conversion of Payment Displaced tenants and short-term owners who rent their original displacement dwellings can within the one-year time period. purchase and occupy a replacement dwelling and claim a down payment assistance; however, the amount of any previously paid rental subsidy must be deducted from the down payment assistance. Long-term owners .who originally rent ,their replacement dwelling can, within the one-year period, ` purchaseand occupy a `~ replacement dwelling and claim a replacement housing ':payment. Any previously paid rental subsidy payment will be deducted from the replacement housing payment. 1.0.._ Time For filing Claim The .claim must be filed within 18 months after the date the relocatees move from the subject dwelling unit but not before they have rented and occupied a DS& S replacement dwelling unit. Rental subsidy claims may be paid as soon as the relocatees meet all eligibility requirements. It is not necessary to wait until the dwelling from which they were displaced has been acquired by RCTC. 11. To Whom Payment is Made All payments will be made to the relocatee(s) unless a written request is made by the relocatee(s) for RCTC to make the payment directly to a lessor as rental for a DS & S replacement unit. 12. Manner of Disbursement 116 - 208 Rental subsidy payments will be disbursed in lumps sum, unless the RCTC determines that payment _ should be made in installments. CHAPTER VII RELOCATION ASSISTANCE Down Payment Assistance . 7 13.1 General Policy Displaced tenants and short-term owners who elect to purchase in -lieu of renting a DS & S replacement dwelling, and who actually do so, are entitled to a down payment assistance if they meet the eligibility requirements discussed in this Section. The.. payment amount is -equal to their computed rental I :subsidy .payrnent and can. be' applied towards a down payment or reimbursable incidental costs, the total of which cannot normally exceed $5,250. Displaced Tenants and Short -Term Owner -Occupants Down Payment Assistance if $5,250 or Less The payment will be based on the lesser of (1) the .amount of the computed rental subsidy plus incidental closing costs, or (2) the amount the relocatees actually paid down in the purchase of their replacement dwelling plus eligible incidental closing costs. Down'Payrnent Assistance in Excess of $5,250 Any down payment assistance in excess, of $5,250 must ,be specifically authorized by. ROW Program Manager as a fast Resort Housing` Payment. Last Resort Payment Assistance (a) Tenants Last ,resort down payment assistanceis available to displaced tenants only when either of the following conditions exists: - 117 - 209 1. there are no comparable DS & S replacement rental dwelling units available on the market; or 2. the only comparable DS & S replacement units available would require a rental subsidy payment in excess of $5,250. Last resort down payment assistance available to tenants cannot exceed the amount the relocatee would be entitled to as a rental subsidy payment based on the monthly rental of the most nearly comparable DS & S replacement dwelling unit available on the market including incidental closing costs. Should the original last resort rental subsidy offer be reduced to $5,250, it must be withdrawn and an offer of $5,250 or less be made. (b) Short -Term Owners Payments made to displaced short-term owners under the provisions of last resort housing cannot exceed the amount to which they would be entitled if they rented the most nearly comparable DS & S replacement dwelling available. Payments may not exceed what the relocatee would receive if they were . a 180-day owner for . a replacement housing payment. 7-13.2 Payment Eligibility Requirements Eligibility requirements include all of those requirements previously stated for rental subsidy payments.: - a. Down. Payment Assistance Must be Applied to Purchase Price of Replacement b. Replacement Dwelling Must Be Acquired and Occupied Within One Year Tenant: Same one-year period discussed in Section 8-12, which is applicable when rental subsidy payments are involved. Short -Term Owners: Same one-year period discussed in Section 8-9, which is applicable when replacement housing payments are involved. 7-13.3 Payment Computations Compute a rental subsidy payment offer to determine the maximum rental subsidy payment the relocatee could be entitled to. If the computed offer is - 118 - 210 $5,250 or less, their down payment assistance will be limited to $5,250 including incidental expenses. If the rental subsidy offer exceeds $5,250, payment will be made under the provision of last resort and will be limited to the computed rental subsidy amount including incidental costs. 7-13.4 Advance Down Payment Assistance It is permissible to process a claim for advancepayment when the relocatee specifically request; in writing. Always include. the Escrow Agent as co -payee on the payment chec 7-135 Down Payment. Claims a. When Filed Down payment claims will not be filed until an eligible relocatee, has purchased and occupied a DS & S replacement dwelling unless advance payment is approved. Down payment assistance claims from short-term owners and tenants must; be filed no later than 6 months after the _expiration of the one-year period. Down Payment Claim Form The Relocation Agent is authorized to assist the relocatee in computing the _:;payment and in ,completing - the claim.- form. The ' claim and accompanying documentation is submitted to the ROW Program Mariager for payment. The claim form is designed to enable eligible _relocatees to include incidental closing costs. - 119 - 211 Section 7-14 7-14.1 General Explanation The. Uniform Relocation Regulations,. establish ,maximum .payment limitations for the various types of relocation housing payments: The regulations also prohibit acquiring agencies from causing residential occupants .to move from their dwelling unless comparable DS & S replacement housing has been made available to them. CHAPTER VII RELOCATION ASSISTANCE- Replacement Housing of Last Resort Without relief from these limitations and prohibitions, it .would not be possible to proceed with a project when the only replacement dwelling available requires relocation housing payments in excess of the maximum payment limitations or when there is no existing replacement housing available. Relief is, provided in the Uniform Regulations which authorize Last Resort Housing Payments. Agencies are given broad latitude in providing replacement housing under this program, provided that the costs are reasonable and the measures taken to provide last resort housing are cost effective. 7-14.2 Last Resort Determination (49 CFR 24.404(a)) "Whenever a program or project cannot proceed on a timely basis because comparable replacement dwellings are not available within the monetary limits for owners or tenants, as specified in Section 24.401 or Section 24.402, as appropriate, the Agency shall provide additional or alternate assistance under the provisions of this subpart: Any decision to provide last resort housing assistance must be adequately justified either: - 120 212. a. On a case -by -case .basis, for good cause, which means that appropriate consideration has been given to: The availability of comparable housing in the program or project area;. and, '2. The resources available to provide comparable replacement housing; and 3. The individual circumstances of the displaced person; or I a; determination -that: there is little, if any, comparable replacement housing available to displaced persons within an entire program or project area; ;and, therefore, last resort housing assistance isnecessary for the area ias a whole; and '2. A program or project cannot be advanced to completion in a timely manner without last resort housing assistance;, and 3. The method selected for providing last resort housing assistance - is: cost effective, considering all elements which contribute to total project or program costs. (Will project delay justify waiting for; less expensive replacement housing to become available?)" 7-14.3 Tenured Occupants 1:80-day homeowner -occupants and 90-day occupants are entitled to have =last resort .housing made available to them when comparable replacement housing is either Not available, or Available, but the calculated replacement housing payments exceed the 122,500/$5,250 statutory.. limits. Note that the $22,500 lirnit is the aggregate of the price differential, interest differential and incidental, cost payments.. 7-14.4 Nontenured .and Post -Offer Occupants Less than :90-day Occupants are entitled t0 have last reSOrt` available to them when comparable replacement housing is either:,. Not available; or Available, but the monthly rental rate, including utilities, of the replacement dwelling exceeds the rent and utilities at the displacement site. 7-14.5 Made Available "Made available" ::means ''thatdisplacee exercises independent choice. and obtains .comparable replacement housing for themselves and has the right of - 121 - 213 possession to that housing; or, it means the RCTC offers displacee replacement housing that is available for immediate occupancy by: a. Determining that comparable replacement dwellings are available and informing displaces of their availability and location b. Informing displacee of the monetary entitlements available to help provide such replacement housing. c. Providing sufficient time and assistance to negotiate for and obtain possession of the replacement property. The RCTC's obligation to provide replacement housing is met when comparable. housing is made available to displacee: The RCTC can then proceed to issue notices to vacate. 7.-14:6 Basic Rights of Person To Be Displaced (49 CFR 24.404(b) "Basic rights of person to be displaced. Notwithstanding any provision of this subpart, no person shall be required to move from a displacement dwelling unless comparable replacement housing is available to such person. No person may be deprived of any rights the person may have under the Uniform Act or this part. The Agency . shall not require any displaced person to accept a dwelling provided by the Agency under these procedures (unless the Agency and the displaced person have entered into a contract to do so) in lieu of any acquisition payment or any relocation payment for which the person may otherwise be eligible." - 7-14.7 Methods of Providing Comparable Replacement Housing (49 CFR 24.404(c)) "Methods of providing comparable replacement housing. Agencies shall have broad latitude in implementing this subpart, but implementation shall be for reasonable cost, . on a case -by -case basis unless an exception to case -by -case analysis is justified for an entire project. a. The methods of providing housing of last resort include, but at not limited to: 1. A replacement housing payment in excess of the limits set forth in Section 24.401 or 24.402. A rental assistance subsidy under this section may be provided in installments or in a lump sum at the agency's discretion. 2. Rehabilitation of and/or additions to an existing replacement dwelling. 3. The construction of a new replacement dwelling. 4. The provision of a direct loan, which requires regular amortization or deferred repayment. The loan may be unsecured or secured by the real property. The loan may bear interest or be interest -free. 5. The relocation, and, if necessary, rehabilitation of a dwelling. - 122 - 21`4 6. The purchase of land and/or a replacement dwelling by the displacing agency and subsequent sale or lease to, or exchange with a displaced person. 7. The removal of barriers to the handicapped. 8. The change in status of the displaced person with his or her concurrence from tenant to homeowner when it is more cost effective, to do so, as in cases where a down payment may be less expensive than a last resort rental assistance payment. b. Under special circumstances, consistent with the definition of a comparable replacement dwelling, modified methods of providing housing of last resort permit consideration of replacement housing' based on space and physical characteristics different from those in the displacement dwelling. (See Appendix A .of this part, Section 24.404) including upgraded, but smaller replacement housing that is decent, safe and sanitary and adequate to accommodate individuals or families displaced from marginal or substandard' 'housing with probable , functional obsolescence. In no event, however, shall a displaced person be required to move into a dwelling that is not functionally equivalent in accordance with Section 24.2(d)(2). The agency shall provide assistance under this subpart to a displaced person who is not eligible to receive a replacement housing payment under Section 24.401 and 24.402 because of failure to meet the length of ,occupancy requirement_. when comparable replacement _rental housing is not available at rental rates within the person" financial means, which is 30 percent of the person's gross monthly household income. Such assistance shall cover a period of 42 months." 7-14.8 Last Resort Housing Plan All Last Resort Relocation Housing Payments must be approved in advance by the ROW Prograrn Manager or the Executive Director, subject to RCTC approval. The Relocation Agent must submit a last resort housing ;plan: to the: ROW Program Manager for approval prior to making any commitment to the relocatee. The plan can be :in the form of a letter outlining the problem and the proposed solution. The amount .of the proposed relocation housing payment must be shown as well as the manner in which it was determined. The relocatee should be identified by name, occupancy status and parcel number. The plan need not be elaborate; but must provide the facts, supporting documentation and a clear picture of the proposal for making a DS & S comparable dwelling available to the relocatee. - 123 - 215 -124- 216 CHAPTER VIII PROPERTY MANAGEMENT TABLE OF CONTENTS Section 8-1: Management of Property and Resolution of Encroachments 8-.1.1 General Provisions 8-1.2 Definitions 8-1.3 Policies for the Management of Property and Resolution of Encroachments a. Generallnformation b. Use of Property -by Third Parties c. License Agreements d: Grants of Easement e. Availability of Property for a Right of Entry or License f. Application Process g. Establishment of License Rental Amounts h. Authority to Approve a 'License of RCTC 'Property Insurance/Indemnity Assigned License Agreements Outdoor Advertising signs Database for Fee -owned Property m. Database for License Agreements and Rights of Entry n. Property Inspection o. Resolution of Encroachments p. Maintaining and Protecting Property q Contaminated Materials 8-1.4 Procedures for the Management of Property and Resolution of Encroachments a. Property Inspections b. License Agreements and Rights of Entry c. Rent Collection for Properties Used by Third Parties d. Ensure "Risk Management, Hazard Protection, and Liability, Reduction e. Notice to Vacate Property f. Property maintenance g. Management of Contaminated Properties.. h. Security Measures Section 8-2 Property Management Checklists 8-2.1 Property Inspections 8-2.2. Preparation of Rights of Entry and License Agreements -1- 217 Section 8-3 Removing Encroachments Section 8-4 Removing Contaminated Materials Section 8-5 Disposal of Surplus Properties -2- 218 Section ,8-1 8-1.1 General Provisions RCTC acquires real property for both rail and highway transportation purposes. RCTC strives to manage, its real property with the objective of maximizing existing and future public transportation benefits, safety, and financial income by means of .;professional property management policies and procedures. This. includes issuing license_ s and rights of entry .for authorized third -party uses, as well as ::°investigating and resolving issues regarding uses that are not authorized by RCTC. On' certain occasions, RCTC may also grant easements: General maintenance activities and security measures are also part of the property management scope of work on all RCTC properties. 8-1.2 Definitions CHAPTER VIII PROPERTY MANAGEMENT Provisions, Policies and Procedures Encroachment: a use or trespass of RCTC property that has not been authorized by a right of entry, license agreement, or grant of easement. Licensee: an authorized user of RCTC property by virtue of :a license agreement; this may also include a lessee under a lease issued by BNSF prior to 1993. Tenant: any licensee, lessee, or recipient of a right of entry who is authorized' to :use RCTC property; this includes individuals, corporations,: utilities, and - governmental agencies. y entity occupying property, either authorized or unauthorized. User: any enti occu in -:RCTC 8 1.3 Policies for the Management of Property and Resolution of Encroachments .General Information The RCTCProperty Administrator shall have management .responsibilities for all .properties acquired for rail and highway purposes, including, the. following: Manage existing; rights of entry, licenses, and leases (authorized by BNSF prior. to 1993) through periodic field inspections to assure compliance with the terms and conditions of the respective agreement. -3- 219 • • • • Review the terms and conditions of existing agreements, ensuring annual license rates are based on the property's fair market value. Prepare and issue new rights of entry and license agreements for use of RCTC property in conformity with RCTC policies; easements may be granted in certain circumstances. Consult with appropriate BNSF; SCRRA and RCTC personnel, when necessary, to determine the impact of property uses by third parties affecting existing or future transportation projects. Consult with legal counsel for approval of changes requested to the standard form right of entry and license agreements. Consult with RCTC insurance for approval of changes to the standard insurance requirements. Coordinate with RCTC Accounting in the organization and maintenance of a license revenue collection system designed to operate in conjunction with other RCTC systems. Manage all properties to minimize maintenance and prevent unauthorized uses. Create, organize, and maintain a database of all RCTC fee -owned properties, including location, Assessor's information, size, fair market value, etc. Create, organize, and maintain a database of all RCTC license agreements (including licenses and leases assumed from BNSF) and rights of -entry, providing important terms and conditions, property location, annual rate, etc. Identify surplus sur that is ` .=Candidate for' sale and maximize property ;a the benefits to be received from the sale. Provide real estate information for the efficient management of all transportation projects. Use of Property by Third Parties When RCTC acquires real property in advance of the time it is required for a transportation project, the property may be utilized during the interim period to create revenue and reduce maintenance expenses for RCTC. Such uses may also continue once the transportation project has been completed, so long as the use is compatible with the project. Rights of Entry Short-term use of RCTC property (generally one to 90 days) may be authorized by a right of entry. These documents are frequently used for construction activities, parking or other temporary purposes. Other than a one-time processing fee (see application Process below), rental amounts are usually not assessed. However, RCTC reserves the right to do so for certain special uses c. License Agreements -4- 220 License agreernents may be utilized for long-term uses (usually over 90 days). where transportation project schedules permit, and on projects where immediate use of the real property is not required, RCTC :may license the property, as well as any improvements thereon, to private or public entities. All new licenses shall be prepared by RCTC on its standard form of agreement. No revisions or modifications will be permitted unless specifically approved by appropriate RCTC personnel and RCTC Legal Counsel; on occasion, approval by the RCTC Board is required. Also; it may be necessary for BNSF or SCRRA to review a proposed licenser if there is, a possible adverse impact to an existing or proposed transportation project. All new . license agreements include RCTC s standardprovision requiring the tenant to accept the condition that it is not eligible for any relocation assistance upon termination of the agreement. All License agreements with private entities shall `:provide for payment ;to. RCTC of a one-time processing fee and an annual fair rnarket rent (public agencies are not required to pay processing fees or annual `rent) ,(see Application Process below). The Property Agent prepares an analysis of the subject property's fair market value, based on a market rate survey of comparable or :similar properties in the same general area.::A current real property 'appraisal may , be utilized, if necessary. In most cases, the annual rate is equivalent `to,. 10% of the fair market value of the property. However, the :rate may be adjusted to reflect any special terms and conditions imposed by RCTC.: . d. Grants of Easement A grant of easement will only be authorized in certain, infrequent circumstances. In most cases, the intended purpose is a public necessity (utility corridor, highway, etc.) and the proposed grantee is ar governmental; :or similar agency, having the right of eminent domain; e.g., Caltrans,:Gas Company, etc. The policies and procedures established herein for rights of entry and license agreements can also generally be applied to rgrants. of easement. Availability of Property for a Right of Entry of License Prior to issuing a right`of entry or license, the Property Agent shall make the following decisions concerning a proposed use: 1. It is in. the best interest of RCTC to authorize the proposed use. 2. It willnot interfere with any present or future BNSF, RCTC or SCRRA transportation uses. -5- 221 3. Any required building permits or other authorizations can be obtained by the proposed tenant under the current zoning regulations or with appropriate variances and conditional use permits (to be acquired by the tenant prior to the execution of any document). 4. The proposed use is not illegal, would not constitute a public nuisance, and is not contrary to public or RCTC policy, and that the property is in a suitable, safe and sanitary condition for such use. 5. It does not require the installation of substantial improvements or would otherwise encumber the property to the extend that it would not be available when the need arises for a transportation use. 6. It is not intended to meet any city or their regulatory code requirements imposed on the occupants of adjoining or nearby property. 7. Itis not used for any purpose that poses an environmental risk from hazardous materials. 8. Grading, paving. and other work on RCTC property, as well as any adjoining property used by the proposed tenant, will not adversely impact any RCTC property. 9. The. proposed tenant understands the property must be restored to its original condition once its term of use is completed. f. Application Process The RCTC website.(http://www.RCTC.org) contains all ;required information and forms to apply for the use of RCTC fee -owned property via a right of entry or license agreement. All _third -party . users must approach ;RCTC to. initiate -the application --process. The following summary briefly 'describes each information page and form: 1. Application Process for Use of RCTC Property (www.RCTC.org, Doing Business with RCTC): _S:ummariz:esthe general process for both rights of entry:. and license agreements. 2. Application Package: Describes requirements for the application for each document: ) Right of Entry: General Application Form, appropriate . Supplemental Application Form, two sets of plans, $1,000 processing fee (non-refundable, no exemptions), and types and amounts of insurance. b) License: General Application Form, appropriate Supplemental Application Form, two sets of plans (additional set to BNSF, if proposed use impacts railroad right of way), $6,000 processing fee, annual rental fee will be assessed (public agencies are exempt from both fees), and types and amounts of insurance. c) Any person working on or near tracks must be licensed by -6-. 222 :B'NSF for safety, security, etc. ,3. Insurance Information: Both rights of entry and license agreements will require the following insurance: a) If a railroad right of way is involved: Commercial General Liability ($1 million/$2 million), Railroad Protective- Liability ($1 million/$2 million), Worker's Compensation (not Less than .$1 million); and Pollution Liability :for $1 million if hazardous materials are involved. If a railroad right of way is not involved: Commercial General Liability ($1 million/$2 million) Worker's Compensation (not less than ,$1 million); and 'Pollution Liability .for $1 million if 'hazardous materials are involved. Forms:tnformation: Lists the various forms used in the application - process. . a) General Application Form b) Supplemental Application for Pipeline Facilities -. c) Supplemental Application for VVire Line Facilities d) Supplemental Application for Grade Crossing/Access e) Supplemental Application for Private Use f) Supplemental Application for Right of .Entry, g) Railroad License Agreement Form h) Right of Entry Agreement Form Establishment of License Rental Amounts License- for Carry-over- Tenants: Generally, a carry-over tenant will charged . the ° sarne contract rent as was :paid , to the former ' Owner.; comparison will be made between the contract rent and :the economic rent, as contained in an appraisal or other market analysis to determine if the contract rent is reasonable. An upward adjustment may' be made to the license amount if the contract rent is below the current economic rent for the. property and the carry-over tenant will remain in occupancy of the P ,P Y rY- : P Y property for more than one month. All Other licensed Properties: License amounts for .all : other ROTC- owned properties generally shall be 10% of the subject ;property's fair market value, as established by a current appraisal : or : survey of comparable licensed properties in the .area.. Authority to Approve a License of RCTC Property Authorityto approve a license of ROTC. properly, as well as, an special pp p Prty Y.p terms and conditions of theagreement, shall be determined based on the specific 'terms and conditions of each agreement, including: annual 'rate, -7- 223 length of term (if other than a 30-day termination period), special provisions, etc. Approval by legal counsel is required for all license agreements. After appropriate approvals, processing and execution by the tenant, the RCTC 'Executive Director shall . execute all licenses that do not require approval by the RCTC Board; the Chairperson of the RCTC Board shall execute any agreement with extraordinary terms and conditions. Insurance/Indemnity RCTC will maintain its own insurance coverage on all of its properties. Insurance coverage for acquired property shall take effect at the time of the title transfer to RCTC. All parties using RCTC property under license agreements or rights of entry will be required to maintain adequate liability and property insurance based on RCTC's insurance requirements. All agreements to use RCTC property shall include an indemnity provision, which holds RCTC harmless "from and against all claim, Liability, penalties, liens, suits, judgments, cost and expenses, including without limitation, damage to property or injuries to or death of any person or ,persons by whomsoever it is caused, arising directly or indirectly from the tenant's use of the property." All users/tenants must accept RCTC's indemnity provisions in their entirety and provide evidence of the required insurance coverage prior to taking possession of RCTC property. P p p rty j. Assigned License Agreements In some instances, it may be of benefit to RCTC to accept an assignment of an existing license .(or BNSF lease) upon acquisition of a property, instead -of issuing a new license agreement. Prior to acquisition, all such license agreements to be assigned to RCTC shall be reviewed by the appropriate RCTC personnel and legal counsel to determine if the tenant is in compliance with the terms and conditions of the agreement. In addition, the terms, conditions and parties to the license shall be verified through an estoppel statement, prepared as part of the escrow process. The original license agreement shall be attached to the estoppel statement for processing into RCTC's system. Additional terms may be negotiated with the tenant and included in a revised license. Whenever possible, assigned agreements should be converted to conform to the appropriate RCTC standard license form. A rental adjustment may be made (upward only) to the .annual rate established for the property. All other terms and conditions are reviewed and any changes made, when necessary. In some cases, the existing agreement to be transferred to RCTC may not accurately reflect the current tenant or use of the property. This provides an opportunity for RCTC to prepare a new license agreement on its standard form. -g_ 224 - All assigned license agreements shall be given an RCTC identification number for control purposes. All original documents may be stored . off -site for security purposes and a copy of the fully -executed agreement. included in the working file. Like other licenses, the Property Agent ensures that the tenant meets the terms and conditions of the agreement through periodic site inspections and review of the agreement'. The: written permission of RCTC is required in most licenses/leases transferred by BNSF to RCTC when a licensee/lessee desires, to assign its interest to another entity. All new licenses issued by RCTC do notallow for such an assignment; a new license must be issued. Outdoor Advertising Signs In July 1997, ; RCTC adopted the policy of not allowing the installation of outdoor advertising signs on its properties However, license agreements covering various existing signs have been [assumed from BNSF : and allowed toremain in effect at fair market value rates. The following policies apply to such agreements, which have subsequently been put on RCTC's standard form. Before an outdoor advertising sign was installed, the billboard company _ had to obtain all necessary permits from the County or local municipality in which the sign was installed. The license rates for advertising signs were, . and will continue to be, based on the size of the sign, its exposure potential to nearby traveled roadways, and the appropriate market_ rate of return. The determination of the market rate of return is based on updated appraisal information, which generally uses the gross license income of private billboard companies, as published by the State of California and,, the Outdoor Advertiser's Association. Generally, RCTC will expect to receive . a minimum of 25%,of the; annual r gross revenue generated by the signboard. A "base license rate" is established annually based on market data appraisal information; , this amount is then increased if the 25% figure exceeds the base 'License rate: Existing signboards located on properties. acquired by RCTC may be eligible for relocation and/or removal assistance upon termination of the license agreement. Database for Fee -owned Property A database will be developed for all RCTC :properties :which, among other things, will: reflect theircurrent status, e.g., operating, licensed to a 'third party; 'or declared surplus. Most properties are :initially acquired for rail or highway transportation purposes. Any properties which are subject to a right of entry will be marked as such; the data base will include most of the same basic ;informationas a license, including term, location, etc., The. - database will ;provide detailed, specific information for each parcel. It will be available to respond to various departmental and agency information needs -9- 225 including: RCTC reporting requirements, such as budgetary projections and Revenue projections; • Regulatory agency information requests; and • Identification of surplus parcel m. Database for License Agreements and Rights of Entry To effectively and efficiently manage all of RCTC's licensed properties, as well as those subject to a right of entry, a database shall be developed and maintained by RCTC, which shall include, among other things, the following general information for each agreement (this shall also include properties that are subject to an existing lease or license previously entered into by BNSF and assumed by RCTC): • RCTC agreement number; • Tenant; • Use; • Location (including rail mile post); • Map reference; • Area dimensions; • Agreement terms and conditions; • Insurance coverage; • : Date entered into -system:, • Field survey information; and • Additional information. n. Property Inspection The Property -Agent shall periodically -inspect 'all- fee -owned properties, especially those subject to a third -party use (easement properties may also be included), and prepare a complete documentation on a property inspection form, including: • Location and Assessor's Parcel Number; • Occupation by an authorized tenant via a right of entry, license or -Tease; • Description of improvements; • Conformity to an authorized use by any building or occupant; • Description of any available utilities; • identification of any environmental concerns; • Observation of any unauthorized encroachments; and • Other pertinent data related to the property. o. Resolution of Encroachrnents An activity or use which 'encroaches onto an RCTC fee -owned property is -10- 226 usually discovered by a field inspection or notification by a third party, e.g.,. neighbor, governmental agency, etc. After determining that such use is• not covered by :an existing right of entry, license, or BNSF lease, The Property Agent shall determine the best course of action to take to resolve the matter, including review by legal counsel, if necessary. If the use is one that is typically allowed by RCTC and, does not interfere:with existing or future transportation plans for the property,. authorization may be accomplished by requiring the user to apply for the appropriate :right of entry or license agreement. If the;.. ;use or user is unacceptable . to RCTC, BNSF, or SCCRA,, the appropriate measures must be taken by the Property Agent;, including the following: • • Attempt to make a contact with the user, trying to determine all . Pertinent information, including: How long have they been on the parcel? Did anyone give them prior permission? If so, was permission given verbally or in writing? Consult with legal counsel regarding best course of action to remove user; If possible, inform user in writing that they must vacate the premises; If user -cannot be contacted, have property cleared of encroachrnent=- by RCTC or outside contractor; Request assistance, if necessary, from the local law enforcement agency; If possible, take steps to prevent re-entry or other unauthorized uses, e.g., fence parcel, post signs, etc.; Create a file to document all activities in writing; Input all information into the database. Maintaining and Protecting Property All operatingrailroad rights of way will be maintained and protected against unauthorized use, vandalism, and damage by BNSF, SCRRA or RCTC; a local public agency (city, county, etc.) may also get involved. The appropriate Shared Use Agreement, as amended, shall dictate responsibilities for the San Jacinto and San Bernardino Subdivisions;' 'in addition, the SCRRA Public Projects Manual shall apply for all railroad rights of way affected by SCRRA (Metrolink) operations. In general, the following _maintenance and protection responsibilities shall apply; 1. BNSF shall have responsibility for the San Bernardino Subdivision. Since RCTC has only easement rights for passenger rail service. -11- 227 2. BNSF shall have responsibility for the operating portion of the San Jacinto Subdivision until such time as passenger rail service is commenced by SCRRA; at that time SCRRA shall assume responsibility. The operating portion of the right of way is considered to extend outward 20 feet on both sides from the centerline of the main track(s). RCTC shall maintain the remaining portion of the right of way. 3. At certain operating SCRRA grade crossings, SCRRA and the applicable public agency share responsibilities. 4. RCTC shall have responsibility for all rail station sites and all other properties (including excess rail and highway parcels). When applicable, some security matters shall also be forwarded to the appropriate law enforcement agency. When a parcel has actually been assigned to a construction project, the security of the construction site, including all materials, equipment,: supplies and the off -site area is the responsibility of the construction contractor. The Property Agent shall monitor the contractor's activities throughout the project. The security of equipment, facilities, or other structures on RCTC's licensed property shall be the sole responsibility of the. tenant until the license is terminated. The Property Agent is responsible for conducting periodic property inspections to verify that the tenant is securing the property as required by the agreement in :a reasonable_,_ manner. 8-1.4 Procedures for the Management of Property and Resolution of Encroachments The following are generalized procedures for the various property management functions performed by the Property Administrator. A checklist for each function follows this section, providing step-by-step, more. detailed guidelines for each function. a. Property Inspections The Property Administrator performs the following inspection activities on all of RCTC's properties, including those properties where a third party has a right of entry or license agreement: • Conducts periodic inspections: as necessary for operating properties with no third -party use -,at least annually for licensed parcels; and more frequently for parcels encumbered by rights of entry, as well as those having potential "problem" conditions. • Documents on a property inspection form the property condition, any unauthorized uses (encroachments), and occupancy status of any buildings. -12- 228 • Implements any required property and building management activities, including arrangements needing the assistance of BNSF or SCRRA, including: • Locking or boarding up facilities, • Posting the property, • Removing debris and controlling dumping (including contaminated/ hazardous materials), Removing weeds and reducing fire hazards, Inspecting for pest infestation, Removing/relocating transients, .and Notifying local authorities, when appropriate. Grants of Easement For those occasions where a grant of easement is required, the Property Agent prepares an approval report, indicating why a grant,of easement is the preferred document, instead of a license agreement. The:.RCTC Board makes the final approval. b License Agreements and Rights of Entry The Property Agent performs the following activities for third -party uses of RCTC fee -owned properties (where appropriate, all references to existing license agreements shall also include licenses_ ;and_: leases which have been assumed by RCTC from BNSF): • Determines that a proposed use is compatible with current operations and future plans of ROTC, BNSF-, and SCRRA. Determines that the proposed use is compatible with surrounding land uses and current zoning designations. • For Licenses, determines the appropriate annual Arate based on market data and valuation analysis; if necessary, requests an appraisal of the property for purposes of determining market value and rates. Determines if a right of entry or license agreement is the proper document to accommodate a proposed use, and vvhether any changes are required to the standard RCTC form. Determines if RCTC Board approval is required and, if necessary, prepares the appropriate approval report. J Obtains any required approvals of proposed use, e.g., legal counsel, Insurance, Finance/Accounting, SCRRA, "etc. After receiving an application and security; deposit (see Application Process above) from the proposed tenant, prepares the appropriate. 'right of entry or license agreement in quadruplicate, assigns the appropriate RCTC reference number, and sends:.' to tenant for - 13- 229 execution; it is then returned to RCTC along with any required insurance certificate(s) and/or initial payment. The agreement is then forwarded to the Executive Director for execution on behalf of RCTC; in some cases, execution by the Chairperson of the RCTC Board is required. • After RCTC execution, the document is entered into the RCTC accounting system and property management database. • Files original document in RCTC original file records depository and returns one original copy to the tenant. A file copy should be placed in the file, along with the insurancecertificate and any .subsequent amendments, address changes, correspondence, etc. Extra copies of the contract should be made for other RCTC personnel, legal counsel, and SCRRA, as appropriate. c. Rent Collection for Properties Used by Third Parties The Property Administrator performs the following actions to assure the proper and timely payment of rent and late charges (ongoing payments ,are generally applicable to license agreements, but may also apply to certain rights of entry): Collection of Rent: All rents shall be collected in accordance with the terms and conditions of the license agreement. Payments (usually annual.) shall be mailed to RCTC Finance/Accounting, who prepares and sends.an -invoice-before the paymentisdue,..,rem_inding a tenant of the amount and due date. A check should not be `given directly to the Property Agent, unless it is the first payment prior to the establishment of the account or other special situation. All checks shall be recorded in the RCTC accounting log: and posted to the appropriate revenue account. A monthly accounts receivable report shall be generated by Finance/Accounting and -reviewed by the Property Agent and the Program Manager. Collection Efforts for Delinquent Accounts: Any account where the current payment is not received in total by the due date is considered delinquent ,(usually after 30 days). Any account that is 60 days delinquent must be discussed with the Program Manager to determine if termination of the license should be commenced. The Program Manager may authorize an additional month for the Property Agent to work with the tenant to bring the account current. Any account that is 90 days delinquent must be discussed with the Deputy Executive Director to determine if the termination should be delayed. A termination of the license must be initiated on any account that is over 90 days delinquent, unless further delay is approved by the Executive Director to negotiate with the delinquent tenant. A clear and complete written .record of all such actions shall be maintained for each file. -'14- 230 Assessment of Penalties: Additional amounts are assessed delinquent tenants, based on provisions in the license agreement. In the event delinquent rent is not paid immediately_ after contacting the tenant, a Three -Day Notice to Quit may be served on the tenant. This notice will demand and give the tenant one last opportunity .to pay the total delinquent rent within three days or vacate the property. If the month -to -month tenant is habitually delinquent and it is decided to terminate the tenancy, a Thirty -day Notice of Termination, terminating the .tenancy may be sent.. NOTE: Serving a Thirty -day Notice of Termination after a Three-day Notice to Quit has been served may negate the legal effect of :;the Three-day Notice in the event the tenant does not quit (vacate) the site. If 'necessary, the matter is then turned over to legal counsel for the filing of an :Unlawful Detainer Complaint t o evict t he tenant through the court system and regain possession of the property, as well as to obtain a -money judgment for the delinquent amount and any attorney's and related costs. The money judgment may then be turned over to an outside collection agency ,or, if recommended by 'legal counsel, the matter may be pursued .through Legal proceedings against the tenant. After all of the above -mentioned proceedings have been completed and .the tenant has vacated the property and the license formally terminated, the Property Agent has the option of determining if the,property s_ available rfor-a new License. If necessary, the Property Agent shall coordinate the storage or;removal Hof :any remaining personal property belonging to the forrner tenant and secure any building to -prevent unauthorized entry. Ensure Risk Management; Hazard Protection, and Liability The Property Administrator shall monitor the uses permitted under each right of entry or license agreement affecting RCTC ;property, as well as the. ;potential risks. andliabilities associated with such uses. After consulting with Insurance personnel, the Property Administrator determines the steps necessary, to :reduce risk and the type and amount of insurance required' to . protect ROTC. RCTC staff takes the following steps to reduce ris Conducting regular property inspections; Evaluating the compatibility of use with adjoining properties Reviewing the existing and ,proposed property use with ROTC; I3NSF or SCRRA, as appropriate; Ensuring that the property's use is legal; - -15- 231 • Insisting on adherence to safety policies; • Reviewing the indemnification and hold -harmless clauses in the agreement; and • Determining the types of insurance policies required, the evidence needed (certificates), and the coverage limitations. If a use is identified as being in non-compliance of an agreement or poses a risk to ROTC, BNSF, or SCRRA and/or the public, the tenant can be given a Three-day Notice to Cure Defect or Quit, or terminated similar to the procedures mentioned above. e. Notice to Vacate Property When a property is needed for operating purposes, or when . a tenancy is to be terminated for other than a breach of the applicable agreement, a Thirty -day (or longer if necessary) Notice to Vacate shall be issued by RCTC. In some cases, the tenant may be eligible for relocation benefits under federal or state law. In this event, the relocation is coordinated with the Program Manager well ahead of the scheduled vacation date. f Property Maintenance g. All RCTC-owned property shall be maintained in a safe and hazard -free -condition. Prior:to the- :commencement- of passenger: rail ,.service, the responsibility for all maintenance activities on operating property within 20 feet of both sides of the tracks is handled by BNSF; upon commencement, SCRRA will assume such activities. RCTC assumes responsibility of all property within the right of way located outside of the 20-foot corridor. 1f a property is covered by a third -party agreement, the area covered `by the agreement is the responsibility of -the tenant. All non -operating properties, rail or highway, shall be maintained by RCTC. All RCTC property shall be maintained in a clean and orderly condition that does not detract from the general appearance of the neighborhood. If this condition does not exist, RCTC, BNSF or SCRRA, as appropriate, shall implement the appropriate corrective measures to improve the property's appearance. Management of Contaminated Properties All properties, whether used by third parties or not, are periodically inspected for adverse environmental conditions; such conditions are noted on an inspection form. If any evidence of contaminated/hazardous materials is detected, the -16 232 Property Administrator: will inform the Program Manager, legal counsel, and/or RCTC's environmental consultants, as appropriate. A plan of remediation will be developed in consultation with the environmental consultants and other designated departments. Security Measures RCTC staff is responsible for the following. security procedures for RCTC-owned property: Responding to safety and security inquiries; • Determining when security measures are needed; Coordinating the proper administration of security with appropriate security providers; Coordinating any police activities with the appropriate law enforcement agency; and Receives and reviews all Station Activity :Reports 8-2 Property;Management Checklists The following .checklists may be used to guide the Property Agent through the process of managing RCTC's property. They are designed to provide specific, more detailed guidelines to supplement most of the general ;procedures delineated above. A separate checklist has been prepared for each of the major property management situations that are commonly encountered by the. Property Agent, especially those involving third -party uses and encroachments. P. Y 9 P Y 9 _ P ,Y ,,... .: Rights -of =-entry or license agreements may be utilized - to,.� accommodates authorized uses by third parties, as well as to develop an income stream. The first checklist addresses property inspections and the :handling of a "discovered situation" (e.g., :unauthorized user on a property). The discovered situation then dictates the appropriate: checklist that should be initially consulted: -2.1. Property Inspections The- :Property Agent conducts periodic inspections .of all RCTC properties, including operating rights of way on which it may: only have :easement rights. The Property Agent conducts an inspection, noting _property conditions on the appropriate inspection form. The inspection form shall contain relevant information derived from the database, including the location and reference number of existing license agreements and`,rights of entry affecting the subject property. As a result of the inspection, one of the six following situations is usually discovered: Property is clean (no extraneous or contaminated materials; etc. is not occupied by a third -party user. Inspection form is completed in its entirety. Inspection form is inserted in file. Database is updated. Property is clean (no extraneous or contaminated materials,: et -17- 233 occupied by an authorized third -party user (has right of entry or license). Reviews terms and conditions of right of entry or license agreement. Inspection form is completed in its entirety. Inspection form is inserted in file. Database is updated. Property is clean (no extraneous or contaminated materials, etc.), but is occupied by an unauthorized third -party user (has no right of entry or license). Inspection form is completed in its entirety. Inspection form is inserted in file. If the user cannot be located, RCTC staff takes action to remove the unauthorized use/user in accordance with the Removing Encroachments checklist indicated below. If locatable, the user is questioned regarding the nature of its occupancy; if it is confirmed the user does not have a valid license or right of entry, the user is informed that it is occupying RCTC property without benefitofa formal document. If the use is acceptable to RCTC, BNS'F, and SCRRA, and the third party wishes to stay on the property, the Property Agent requests the user to submit a formal application, as described in . the RCTC website (see` Application Process above) If .the use is unacceptable to RCTC, BNSF, or SCRRA, the Property Agent takes action in accordance with the Removing Encroachments checklist delineated below to remove the unauthorized user. Database- is updated. Property is not clean (extraneous or contaminated materials, etc. are discovered) and is not occupied by a third -party user. Inspection form is completed in its entirety, noting unacceptable condition of property. Inspection form is inserted in file; the form is then updated to include a chronology of each action taken until the issue is resolved. The Property Agent takes action to have the unacceptable materials removed in accordance with the Contaminated Materials checklist set forth below. The Property Agent closely monitors the clean-up process and notes each action in the inspection form. The file is closed; after all clean-up items are satisfactorily -18- 234 completed. Database is updated. Property is not clean (extraneous or contaminated materials, etc. are discovered) and is occupied by an authorized third -party user. Reviews terms and conditions of right of entry or license agreement. Inspection form is completed in its entirety, noting unacceptable condition of property. Inspection form is inserted in file; the form is then updated to include -a chronology .of each action taken until the issue is resolved. The Property Agent informs the tenant that: action must be immediately taken to have the unacceptable condition rectified in a manner acceptable to RCTC (see Contaminated Materials checklist set forth below); the tenant is also informed its right of entry or license agreement is in jeopardy of being terminated with RCTC possibly taking whatever legal measures are available to cure the problem. After reviewing the situation with the tenant, the Property Administrator confirms in writing the party responsible for the infraction and the proper course of action to be taken. RCTC generally takes responsibility for all clean-up activities and bills the tenant for all measures taken. The Property Agent takes action to have the unacceptable materials removed in accordance with the Contaminated Materials checklist set forth below. The Property. Administrator closely monitors the clean-up process and; notes each action in the inspection form. The file is closed after all clean-up items are satisfactorily completed. Database is updated. Property is not clean (extraneous or contaminated materials, etc. are discovered) and is occupied by an unauthorized third -party user. Inspection form is .completed in its entirety, noting unacceptable condition of property and unauthorized use of property. Inspection form is :inserted in file; the form is then updated to include a chronology of each action taken until the issues are resolved. If the user cannot be 'located, RCTC 'staff takes action to remove both the unauthorizeduse/user and unacceptable condition in accordance with the Removing Encroachments and Contaminated Materials checklists indicated below. If locatable; RCTC staff informs user that: 1) it is,unlawfully occupying RCTC -19- 235 property, and 2) action must be immediately taken to have the unacceptable condition rectified in.a manner acceptable to RCTC (see Removing Encroachments and Contaminated Materials checklists set forth below). If the third -party user agrees to resolve the unacceptable situation (e.g., illegal dumping of concrete) and its primary use of the property (e.g., backyard landscaping) is acceptable to RCTC, BNSF, and SCRRA, a right of entry or license agreement, as appropriate, may be prepared in accordance with the Application Process delineated above: After reviewing the situation with the tenant and confirming in writing the proper course of action to be taken, the Property Agent closely monitors the clean-up process and notes each action in the inspection form. The .file is closed after all clean-up items are satisfactorily completed. Database is updated. 8-2.2 Preparation of Rights of Entry and License Agreements Upon receiving a request from a third party through the Application Process set forth above, the Property Agent takes the following actions to accommodate an existing or proposed use of RCTC property. Application Review Receives completed General Information Form. Receives applicable Required Supplemental Application. Receives two sets of detailed plans showing proposed use. Receives deposit of $6,000_ (license) or non-refundable. fee of ,$1,000 .. of entry) _ ; _ -,. ._. _ ., ._ : ,. .. _ . Forwards deposit/fee to Finance/Accounting. Receives appropriate certificates of insurance. Design Review Reviews plans showing proposed use... Forwards plans to Bechtel and BNSF (if a railroad right of way) for review. Receives plans from Bechtel. Receives plans from BNSF (if applicable). If plans are approved, informs applicant; the status of fees is also mentioned. If plans are not approved, informs applicant of discrepancies and needed revisions. - If applicant submits revised plans, initiate new Design Review. Agreement Preparation Determines if a right of entry or license agreement is the proper document to accommodate the proposed use, and whether any changes are required to the standard RCTC form. ------ If changes are required, obtain approvals: Legal counsel, Finance/Accounting, Insurance, 20 - 236 Other. For licenses, determines the appropriate annual rate (usually 10%) based on market data and valuation analysis. If necessary, requests an appraisal of the property from an RCTC-approved appraiser for purposes of determining market value. Receives and reviews appraisal. :Determines if RCTC Board approval is required. If required, prepares the appropriate memorandum. Routes memorandum, obtaining any RCTC approvals prior to RCTC Board: Program Manager, Deputy Executive Director, Executive Director, RCTC Board. After appropriate approvals have been obtained, instructs: legal counsel to prepare (in quadruplicate) the appropriate right of entry or license agreement, including any approved changes: Prepares exhibit reap. Prepares any other necessary exhibits and attachments. Assigns RCTC reference number. If necessary, forwards exhibit map and attachments to legal counsel -for, attachment to document (this may -be done. prior to,.,� along with, the request for its preparation). Receives right of entry or license agreement from -legal counsel.. Attaches exhibit map and attachments (if not done previously). Sends four originals to applicant for execution; a copy is retained in file. Agreement Execution Receives four executed originals of right of entry or license agreement along with any additional correspondence and initial annual payment (if a:license agreement). Forwards four originals to, the Executive Director for execution. If execution by the Chairperson of the RCTC ,Board is required, includes approval memorandum and routes document through Executive Director for execution. Receives executed documents: Returns one fully -executed originalto the applicant (now considered a tenant). Forwards original to Finance/Accounting for entry into the RCTC accounting system; Enters document into the property management data base. -21- 237 Files one original document in RCTC original file records depository. -- Transmits originalinsurance certificate to RCTC Insurance. Places a copy of document in the file, along with a copy of the insurance certificate and any subsequent amendments, address changes, correspondence, etc. Forwards remaining original to legal counsel and copies to any other RCTC departments, as appropriate. Construction Review (if applicable) Receives five-day notice of construction from tenant (alsogiven to BNSF for operating railroad rights of way). Construction begins. Property is inspected during construction period. Construction is completed. Conducts final inspection. Receives as -built drawings. Completion of Project (if applicable) Project closed out. Notifies Finance/Accounting of annual fee instructions. Requests from tenant any additional funds required over tha $6,000 deposit, or refunds any excess deposit not utilized by RCTC. 8-3 Removing Encroachments If an RCTC property is encumbered by a use that is not authorized or compatible with existing or future transportation projects (encroachment), it must be removed as soon as possible. The Property Agent takes the following actions: Creates working file. Makes effort to locate user. Informs. appropriate RCTC, BNSF, and/or SCRRA personnel, including legal counsel, of the encroachment and suggests a course of action to remove the encroachment. Course of action is confirmed and documented in writing in file. Determines if local law enforcement agency needs to get involved. If so, contacts agency and informs them of proposed course of action and possible future need of their services (the agency may request to be informed of progress of RCTC's efforts). If user cannot be located, has use (including any improvements) removed in accordance with Contaminated Materials checklist below (if contaminated/hazardous materials are involved, coordinates all efforts with the RCTC environmental consultant). 22 - 238 If necessary, to prevent further encroachments, has parcel fenced, posted with a sign, etc. Closes file. Database is updated. If user is located, :informs user that the encroachment(s) must be removed; . RCTC generally takes responsibility for all clean-up activities in accordance with Contaminated Materials checklist below and bills the tenant for all measures taken. If necessary, establishes time schedule for cornpleting removal process. If! contaminated/hazardous materials are involved, coordinates all efforts with the RCTC environmental consultant. If -necessary, to prevent further encroachments,.has parcel fenced, posted with a sign, etc. Closes file. Data base is updated. If user is uncooperative: Contacts appropriate RCTC personnel and legal counsel to develop course of action. Implements course of action. If necessary, notifies user.of RCTC's intended course -of._ action. If necessary, notifies local law enforcement agency of RCTC's intended course of action. If necessary, to prevent further encroachments, has parcel fenced, :posted with a sign, etc. 8-4 Removing Contaminated Materials If the Property Agent believes contaminated/hazardous materialsor other substances occupy RCTC property, the following course of action should immediately be taken to rectify the problem in a timely manner: Notifies the California Environmental Protection Agency, Department of Toxic Substance Control, to obtain a State identification number for the problem. The County of Riverside, Community Health Agency, Department of Environmental Health, should also be notified to determine if its input is. required. If necessary, ,coordinates all-effortsmith the RCTC environmental consultant: Secures an RCTC-approved contractor to commence clean-up activities., Conducts periodic onsite inspections to monitor activities of contractor. After final inspection, verifying satisfactory completion of clean-up activities, files appropriate forms with the California Environmental Protection Agency. Section 8-5 Disposal of Surplus Properties 8-5.1 Authority of the Riverside County Transportation Commission to Dispose of Surplus Land and Land Rights 8-5.2 Exemptions 8-5.3 Policies for the Disposition and Sale of Surplus Land and Land Rights a. Policy b. Purpose c. Who Conducts Negotiations d. field Inspection e. Determination of Sales Price f. Good Faith Negotiations and Basis of Value g. Notice to Selected Public Entities h: Yearly. Inventory i. Disposition and Management j. Direct Sales to Adjoining Land Owners k. Occupation Prior to Closing 8 5.4 Procedures for the. Disposition and Sale of Surplus Land and Land Rights_ a. Power to Declare Surplus Properties 8-5.5. Disposition and Sale Process Checklist a. Declaring;the Property as Surplus b. The Sale Process - 24 - 240 RIVERSIDE COUNTY TRANSPORTATION COMMISSION Provisions, Policies and Procedures for the Disposition. and Sale of Surplus Land and Land Rights General Provisions 8-5.1 Authority of the Riverside County Transportation Commission_ Dispose of Surplus Land and Land Rights StateGovernment Code Sections 54220-54232 provide authority and guidelines for the Riverside County Transportation Commission (ROTC) to disposeof the . majority of .its; surplus land. In addition, the state Legislature has emphasized certain future uses of surplus government land, placing a priority on low -land moderate -income: housing, park and recreation or open space <purposes, "enterprise" zones, and development projects near transit stations. On rare occasions a separate Section 54236 may apply when the sale of. surplus residential property can "preserve, upgrade and expand the supply of housing available to 'pe'rsons and families of low or moderate income." ,Due to the infrequency of its application,_ properties falling under Section 54236 are not included .in,, this policy sand procedure, but this section should be consulted, if appropriate. 8-5.2: Exemptions There are: exemptions. to the -provisions of Government-Code;_ Sections 5422 54232, which are as follows: Surplus land, which is transferred pursuant to Section 25539.4, which states among other things that a county may sell real property at less than its fair market value "to provide 'housing affordable to persons or farnilies of low_ or moderate: income." Surplus land which is 1) less than 5,000 square feet in area, '2) less` than .. the minimum legal; residential building lot size for the jurisdiction in which the parcel is located, or 5,000 square feet in area, whichever is less, or 3) has no record access :and. is Less than 10,000 square feet in area. The property must not be contiguous to land owned bya state. or local agency which is used for park, recreational, open space, or low-,_ and moderate -;income housing purposes and is not located with -in a'n_ enterprise zone.. (a depressed area in which private investment is promoted to stimulate. business and industrial growth, as well as employment opportunities) pursuant to Section 7073, nor .a designated program area as defined in 'Section. 7082 (high priority areas for resources: designated by the Office of Criminal Justice Planning). If the land is not sold to an owner of contiguous .land, it is not considered exempt surplus land and is subject to: the provisions of Sections 54220-54232. -25- 241 c.. These exemptions do not apply in certain circumstances, including if the property is located within a coastal zone, or within 1,000 yards of a historical unit of the State Parks System or eligible for the National Register of Historic Places. 8-5.3 Policies for the Disposition and Sale of Surplus Land and Land Rights Purpose To establish RCTC policies and procedures related to the disposition and sale of surplus land.- The intent and purpose of the policies and procedures are to assure uniform practices that will provide consistent and equitable treatment of purchasers of surplus land, and the Commission receives the highest value for sale of surplus land. Even though the bulk of the sales will be for fee -owned parcels, the policies and procedures mentioned herein could also be used, wholly or partially, for surplus land rights, e.g., quitclaim of easements. Policy Notwithstanding the provisions of Government Code 54220-54232, it is the policy of the Commission to sell land locked or remnant surplus land .at "assemblage value" or based on "over the fence appraisal" when surplus land is sold to private individuals orprivate entities. All other surplus land will be sold at fair market value. Any exception to this policy requires prior approval by the Commission's Property Committee. Who Conducts Negotiations Either the RCTC ROW staff or consultant under the direct guidance of the ROW Program Manager is authorized to negotiate the sale of surplus land on RCTC's behalf. a. Right of Way Staff Negotiations for the sale of surplus land may be conducted by RCTC ROW staff. Such personnel must meet the minimum qualifications for the position of ROW Program Manager as outlined in the RCTC Personnel Manual. Other personnel not meeting these minimum qualifications may perform negotiations under the direct guidance of the Program Manager. Consultants Negotiations may also be conducted by consultants under written agreement with RCTC and under the direct guidance of the ROW Program Manager. --26- 24.2 Field Inspection The Property Administrator or consultants are will conduct a field;:: inspection of the subject property, especially to confirm the land to be disposed of is no longer . needed for operating purposes. Determination of Sales Price The ROW Program Manager prepares a sales price recommendation which :is based on a recent appraisal of the subject property conducted by :an ROTC -approved appraiser. The appraiser is usually chosen from a group whohave responded to RCTC's Request for Proposal. Good; Faith Negotiations and Basis of Value It is the policy of RCTC that all negotiations shall be expeditious and result RCTC receiving just compensation. Even though it is not required by .law, in most cases an appraisal of the surplus land should be conducted to determine its fair market value. Also, the appraisal guards against a low sales: price, as well as charges that the sale; was a gift of public funds. No hand shall be sold for less than its fair market value. Right of First Refusal to Original Owner If RCTC intends to offer lfor sale property acquired pursuant to a ,condemnation action, RCTC rnust first offer the original owner of the property a :right .of first refusal to purchase the property at its present market value. If the property was a single family residence, and the original owner can certify that they - are a low income individual/family, the offered price must be no more than the price originally paid by R:CTC, adjusted for inflation; and: -in no event more than the fair market value Notice to Selected Public Entities As delineated in Section 54222, before disposing of any surplus land; F RCTCis required to send' a. written offer: to sell surplus property to various entities, including the following, within !whose jurisdiction the :land: is located; all offers shall be sent by first-class > mail and include the location and a description` of the :property' The local entity that assists in developing low and moderate -income .housing.; Housing sponsors who request a written offer. The city and/or County park or recreation department, any regional park authority, and the State Resources Agency for park and recreation or open space purposes'.. The local school :district (for school facilities construction or open space). The local non-profit neighborhood enterprise association 'corporation. The program area agent established by the Economic Employment and Incentive Act.' -27- 243 Any of the entities desiring to purchase surplus land must notify RCTC within sixty (60) days of receiving the written notice. RCTC must then enter into good -faith negotiations to determine the sales price. 1f no agreement is reached within sixty (60) days, RCTC may proceed with the general disposition process; there are no other statutory requirements. As previously mentioned, the notice requirements do not apply in certain limited cases, such as small parcels that are sold to the adjacent property owner, unless they (1) adjoin publicly -owned land used for parks and recreation, open space, or . low- and moderate -income housing, (2) are located within a Government Code Section 7073 enterprise zone or a Section 7082 designated program area., or (3) are within 1,000 yards of a historical unit of the State Parks System or property listed on or eligible for the National Register of Historic Places. Yearly Inventory Each year RCTC will prepare an inventory of real property . that is surplus of its foreseeable needs. The inventory is a matter of public record. To alert entities who develop low- and moderate -:income housing, RCTC must provide the inventory to any citizen, limited dividend corporation, housing corporation, or non-profit corporation who requests a copy. Disposition and=Management = Properties declared available for sale will be first offered to other public entities ` in accordance with the above -mentioned Notice to Selected Public Entities. If other public entities have no interest in a property at the terms offered by RCTC, the pro ma be marketed by a major real, estate ,marketing .firm chosen by the property Y : )-nay -y Property Committee. RCTC may wish to directly market these and other parcels, especially those of minimal value. Advertising may be posted on the subject property; also, in the local (Riverside Press - Enterprise) and regional (Los Angeles Times) newspaper. Parties interested in purchasing RCTC surplus properties shall submit their formal written offers or proposals directly to RCTC. The Property Administrator will initially review each offer and proposal and determine if the terms and conditions are in conformance with RCTC's plans for the subject parcel. After initial review by the Property Administrator, all offers and proposals to purchase will be presented to the Property Committee for review and consideration, with final approval on most parcels granted by the RCTC Board. In the event RCTC receives offers from more than one of the above -mentioned public entities, it shall give first priority to the entity which agrees to use the property for =28- 244 housing for persons or families :of low- or moderate -income, except that first priority shall be given to an entity which, agrees to use the property for park or recreational purposes if the land being offered is already being used, and will continue to be used, for park and recreational purposes, or if the land is designated for park : and recreational use in the local general plan and will be developed for that purpose. Before disposing of any property purchased by RCTC with state or federal grant funds, RCTC staff should consult the terms of the agreement under which the funding was .accepted. In some cases, disposal of property purchased with grant funds ,may be prohibited. Land acquired .by ` RCTC for highway purposes through the expenditure of funds . allocated pursuant to. Chapter- 3 :(commencing with Section 2100) of Division 3 .of the Streets and Highways Code.may be retained by RCTC, or transferred to another local agency, for public park and =recreational purposes, and if the local agency having jurisdiction over such land determines that the use'. of such land for public and recreational purposes is the highest and best use of the land. Said land shall be developed within ten (10) years and shall be used for at least twenty-five (25). years following such retention or transfer in accordance with the general plan for the appropriate city or County. Otherwise, the land shall be sold by RCTC and the funds received from the sale used for highway purposes. If the land originally had been transferred for such purposes, it shall revert to the original acquiring local agency for such sale. W Also, upon :the saleof surplus properties, RCTC may be required to reimburse any r federal or state agency that contributed funds for the property's' original acquisition, generally in conjunction with a major highway project. However, the Federal. Highway-, 'Administration no longer requires a reimbursement. Instead, the funds should be . used for subsequent highway projects. Any State funds utilized in the acquisition must be reimbursed to the State. After all approvals have been obtained and the potential buyer has been informed',a formal escrow will be opened at an approved escrow company, Any RCTC surplus properties subject to a license/lease agreement will be classified. and analyzed in accordance with the above -mentioned policies in order to determine their future potential use at the termination of the license/lease Direct Sales to -Adjoining Land Owners RCTC may directly sell any: small, odd -shaped surplus parcels to :adjacent land owners without going through a competitive bidding process. These parcels .usually have no value for; development. Only the adjacent owner would have a logical use of the parcel, especially if needed :for ;access to a ;public highway. The minimum sales price will be the parcel's . appraised market ' value, considered as, a joinder ;or assemblage value. If the adjacent; land owner :does not wish to ;purchase the parce1,1 the Property _29- 245 Administrator may proceed to offer it for sale as if it were any other surplus property. Document Preparation All documents regarding the sale of surplus land shall be prepared and/or approved by RCTC legal counsel and forwarded to the Property Agent or consultants for final review and transmittal to escrow. Occupation Prior to Closing No purchaser of surplus land shall be allowed to occupy or take possession of the property .prior to the full payment of the purchase price and close of escrow without the prior written consent of the RCTC Executive Director. Procedures for the Disposition and Sale of Surplus Land and Land Rights, 8-5.4 Power to Declare Surplus Properties The RCTC Board of Commissioners has the power to declare such properties as "surplus" and are not needed for public use, and will approve their disposition and sale. The RCTC Executive Director may also perform this function for certain small parcels, e.g., those containing less than 5,000 square feet. In both cases, a memorandum shall be submitted to the Executive Director by the Property Administrator requesting approval. Prior to submission to the Executive Director, the memorandum shall be concurred to by the Project Delivery Director, the Project Development Director, the _Regional. Programs Director and the ROW Program Manager. It must then be determined if the property should be offered to the appropriate public entities. If so, their response must be received within sixty .(60) days of the notice sent by RCTC. Concurrently, the Property Administrator will order an appraisal to determine the fair market value of the land, establish a sales price, and obtain the approval offfie RCTC Board or Executive Director,_ as appropriate. If any public entities are interested in purchasing the subject property, agreement must be reached within sixty (60) days as to sales price and terms and conditions. If no public entities are interested or an agreement cannot be reached within the sixty- day time period, RCTC may offer the parcel to the general public. Smaller parcels of minimal value may be handled directly by the Property Administrator or consultants. All offers to purchase must be reviewed by the Property Administrator and the Property Committee and approved by the RCTC Board or Executive Director, as appropriate. Counter-offers may be necessary if the initial offered price or terms and conditions are not acceptable to RCTC. Once an offer has been approved and accepted by RCTC, the buyer is notified and an escrow is opened at an approved escrow company. For smaller parcels with a minimal value, it is allowable to complete the transaction without an escrow, as long as a closure acceptable to RCTC can be achieved. - 30 246 Upon completion of the sale, the Property Administrator notifies the appropriate RCTC personnel -of the property's sale. The file is then closed and the database revised to reflect the parcel's sale. The 'following checklist provides detailed specific procedures to be followed in a typical disposition and sale of surplus land. 8-5.5 Disposition and 'Sale Process Checklist The following checklist may be used to guide the Property Administrator and consultants through the process of disposing of surplus land and land rights. 'It is designed to:: provide specific, more detailed guidelines to supplement the general procedures mentioned above. Declaring the Property as Surplus Property Administrator is made aware, either . by internal means or notification by a third party, that a parcel could be declared surplus,' and offered for sale. The Property Agent: Obtains and reviews relevant information regarding the parcel: Assessor's parcel map, RCTC acquisition data, including purchase price, acquisition date, legal description, title policy, etc., Current -zoning, Available valuation data, including recent RCTC appraisals for nearby properties. Inspects property and completes inspection form, noting any visible encumbrances, hazardous waste; access problems, etc. Also,-' notes any "for sale" signs in the area. Checks acquisition title policy to determine encumbrance items: Compares encumbrance items delineated in title policy with those observed during property inspection; lists remaining encumbrances, those which no longer occupy parcel, and any new ones observed during inspection. Estimatesproperty's fair market value using best means available: reviewing existing appraisals, checking with listing agents having -31- 247 "for sale" signs in area, Assessor's information, etc. An appraisal could be ordered if the property will have substantial value, no other valuation data is available, and it is reasonably certain the parcel will declared surplus (an appraisal will usually be ordered only after the property has been approved for surplus status and sale). Prepares approval memorandum to have parcel declared surplus and available for sale; the memorandum should contain all relevant property data, including any unusual conditions, inquiries received to purchase, etc. The Sale Process Routes for approval through: Program Manager, Deputy Executive Director, Executive Director, Property Committee, If necessary, RCTC Board will approve any unusual conditions or if property has significant market value. Receives fully authorized approval memorandum. "Determines if a Right Of First Refusal must be granted to the origina property owner. Determines if property must be noticed to public entities. If so,, send notice: to each :entity (see. Notice to Selected Public Entities above), requesting response within 60 days. Determines property's fair market value, generally by ordering an appraisal: If necessary (e.g., property has significant value), prepares and sends a Request for Proposal, asking for bids from approved real estate appraisers to value the property. Receives and reviews each bid. Awards appraisal contract. Receives appraisal: Reviews appraisal. -32- 248 If necessary (for complex or high market value appraisals), routes for review by Program Manager, Deputy Executive Director, or outside consultants. Determines sales price. Obtains RCTC approvals of sales price: Program Manager, Deputy Executive Director, Executive Director, If necessary, RCTC Board. If appropriate, prepares and sends a Request for Offer, containing sales price and any additional sales requirements, to any interested public entities. If appropriate, receives responses from interested public entities. Responds to any questions from public entities. Reviews offer(s);makes recommendation and <submits. through Program Manager to Property Committee for approval. Receives rejection, approval, or counter-offer from Property Committee. Informs potential.buyer(s) of Committee's decisio Receives potential buyer(s)' response. If necessary, repeat process until one offer is accepted by the Property Committee. Obtains RCTC Board approval. After Board approval, notifies potential buyer of offer's acceptance. Verify sales documents Any unsuccessful bidders should also be notified. Takes action to remove any unauthorized encroachments and' contaminated materials (see "Removing Encroachments" and "Removing Contaminated Materials" in the Provisions, 'Policies and Procedures for the Management of Property, and Resolution of _ Encroachments) -33- 249 Requests legal counsel to prepare purchase and sales agreement. Receives purchase and sales agreement from legal counsel. Routes for execution by Executive Director. Opens escrow at an approved escrow company and submits purchase and sales agreement executed by ROTC. Escrow officer secures buyer's execution of purchase andsale agreement, as well as other necessary documents. If necessary, completes any due diligence items required of RCTC,e.g., resolution of encroachments, removal of contaminated materials, removal of any tenant, etc. Receives all necessary documents, including grant deed, from escrow officer, reviews, and routes for execution by Executive Director. Receives executed document(s) from Executive 'Director. Requests RCTC Finance/Accounting to submit any fundsinto escrow required of ROTC, e.g., tax pro -ration, escrow fee, etc. _Closes escrow: Receives sales proceeds due ROTC and copies of recorded document(s). Remits sales proceeds to RCTC Finance/Accounting. Makes copies of all documents, inserts one in file, and distributes other copies to (this will serve as their notification of the parcel's sale): Insurance, Finance/Accounting, Rail/Property, Legal counsel. Forwards original document(s) to RCTC records vault. Closes file. Database revised ;to reflect parcel's sale. -34- 254 Receives, cornpletes, and returns appropriate Assessor's form, requesting sales price information ("Change of Ownership Form" is no longer required). CHAPTER IX DEMOLITION, CLEARANCE AND CERTIF.I TABLE OF CONTENTS Section: 9-1 Demolition and Clearance 9-1.1 Overview 9-1.2 Federal Funds 9-13 Pre -Demolition Activities 9-1.4 Personalty 9-1.5 Asbestos and Lead Paint 9-1 6 Demolition Contract 9-1.7 Clearance Section 9-2 Right of Way Certification 9-2.1. Elements 9-2.2 Requirements 9-2.3. Partial ROW: Certification -35- 251 CHAPTER IX DEMOLITION AND CLEARANCE Section 9-1. Demolition and Clearance 9-1.1 Overview a. The demolition and clearance of structures and other improvements on acquired property is included in the property management function. The Commission must manage real property acquired for a project until it is required for construction. b. Improvements include building structures or any other obstructions within the proposed right of way such as: 1. utilities, 2. underground storage tanks, 3. and wells 9-1.2 Federal funds a. Federal funds may used to cover costs for the disposal and clearance of real property, ;pursuant to 23 CFR Subpart B, section 710.203(b)(4). b. Accounting documentation will be required in order to bill Federal participating revenueandexpenses accurately. Otherfederal policies and procedures for managing real property on Federal-ai`d projects are contained in 23 CFR Subpart D, Sections 710.401 through 710.409. Prior to environmental clearance, improvements must not be removed except in cases of emergency. Emergency is defined in the Ca[trans Environmental Regulations -as: a sudden, unexpected occurrenceinvolving a clear and imminent danger, demanding immediate action to prevent or mitigate loss of, or damage to life, health, property, or essential public services. Emergencies may include, but are not limited to such occurrences as fire, flood, earthquakes, riots, accidents or sabotage. Historic structures will be identified and addressed during the environmental clearance process. If applicable, documentation that details the compliance with the mitigation and/or disposition of the historic structure will be necessary. 9-1.3 Pre -Demolition Activities An inventory of improvements and personalty on the property will be prepared and included in the appraisal report. The Acquisition project manager will forward the inventory report to Property Management, along with anticipated vacation dates of the occupants. Property Management can then determine the best means of clearance based on the type of structure, the right of 36 25;2 way requirements, the construction schedule and the personalty that may ;be . included in the inventory. Demolition of structures shall be scheduled as soon as possible when occupant vacation occurs. Close coordination with the acquisition project. manager ensures that demolition activities begin on a timely basis. Weekly :field inspections shall be performed by Property Management to ensure, ;that. properties: are secured immediately upon vacation. Upon contract :award, the demolition contractor becomes responsible for securing the property ..with boarding, fencing; etc. 9.-1.4 Personalty If time allows, movable items that are purchased as a part of the acquisition may be Soldby public -auction. The property. owner' may elect, :to retain an improvement: If owner retention is offered during negotiations, the .time frame for removal shall be included in the purchase agreement. 'Fixtures included in the real estate are generally included for demolition, however the cost ;of demolition should. reflect an offset for salvage value. Prior to .:.removal of improvements from excess land, FHWA approvalmust be obtained for federally assisted projects 9-1.5 Asbestos and Lead Paint Abatement All improvements shall be inspected for the presence of Asbestos .Containing Materials .(ACMs) ; and lead paint when applicable, prior. to.'demolition :or removal_A qualified .and licensed environmental_ consultant : shall perform an asbestos survey. A report will be prepared that will .include testing results and recommendations, which will be forwarded to the abaternent contractor. All activities must comply with Environmental Prote.c,tion Agency and local government regulations. RCTC shall comply withi the Southern California Air Quality Management District (SCAQMD) guidelines. Removal of ACM will be Performed by or through the demolition contract. by a` qualified and licensed 'abatement contractor, and will comply with all applicable laws, regulations, ordinances and recommendations of the inspector: 9-16 Demolition' Contract Clearance of improvements can be scheduled during the acquisition' phase of. the project using .demolition contracts or be included as a work item in the construction contract. Certain circumstances, such as inaccessibility to the property.' improvements may call for using the latter methodology. A field ;inspection of ,the _property is necessary to verify that items included in the -inventory report are still physically included on the :property. ,The demolition' contractor will bid the work based on the items included in the scope of work, the results in the asbestos survey and a field review of the property. The bid packageshall be prepared and will include the scope of work, the location -of the property, ancillary'`itenis that shall,be included i e. trees,fencing, signs, underground storage tanks, etc., contact -numbers as appl'iCable, and the anticipated length of time for the demolition. R`CTC uses .a standard scope of work for demolition tasks -that includes asbestos -37- 253 abatement, securing of property, order of work, applicable standards, compliance with regulations and ordinances, among other items. On projects with Federal aid, contracts exceeding $2000 require compliance with 29 CFR Subtitle A, Part 1 regarding the payment of predetermined minimum wages to certain employees and 29 CFR Subpart 3 regarding the submission by the contractor of payroll information. Demolition is awarded on a task -order basis. Bids can be submitted within the week, particularly on smaller jobs where the contractors inspect the property on their own. For larger jobs, Property Management shall schedule a site -walk with all on -call contractors. As the duration of demolition is generally for a short period, the bid price shall be lump sum. The contractor's 'bid shall include all permits and fees, equipment rental, asbestos abatement, tank removal and subcontract work. Once bids are received and a contractor selected, the task order shall be completed and sent to the contractor for signature on an expedited basis. Once executed, a Notice to Proceed will be issued. 9-1.7 Clearance Prior to demolition, the first order of work is to notify SCAQMD, which requires a 10 working day notification prior to asbestos abatement. If an improved property becomes a health and safety hazard, Property Management can request that the SCAQMD notification period be waived on an emergency basis. During the SCAQMD notification period, the contractor will notify Underground Service Alert for utility location, schedule equipment, and secure the property. Prior to demolition, Property Management must notify utility .companies in writing to discontinue service: y Once demolition activities commence, monitoring of the removal shall be documented in writing and maintained in the parcel file. When final clearance is achieved, a Right Of Way Availability notice shall be forwarded for inclusion in the construction documents. - 38.- 254 Section '9 CHAPTER IX DEMOLITION, CLEARANCE and RIGHT OF WAY CERTIFICATION Right of Way Certification 9-2.1 Elements The Right of Way Certification procedure identifies the acquisition status of necessary ROW for the purpose of advancing a.project to construction. It also addresses the status of any required relocation activities necessary on the project. The. key elements are: c. acquisition of ROV in accordance with Laws and requirements,so prospective . contracts will not be stopped by related litigation; relocation of people, so that the contractor may enter upon the properties; identification of encroachments and acquired structures within -the -ROW, and an explanation of who will remove them; and . hazardous waste identification that may be present at the site; with information on contractor's responsibility for safe disposal. 9-2.2 Requirements Prior to physical construction, the ROW staff shall prepare a statement that: Ali ROW —is clear, or if not, appropriate notification is given of any work concurrent with construction; b All people relocated to Decent, Safe, and Sanitary housing, and one of the; following applies: All needed -ROW acquired, all occupants have moved-, or Not ali need 'ROW acquired but right, of entry -obtained on all parcels, and all occupants moved; or 3. Acquisition of ROW not complete, and occupants still on the project — this action requires a full explanation` and ` special assurances about occupant protection. Advise that ROW acquired in accordance with applicable federal, state and local laws; Advises that federal and state relocation' assistance and .;payment .. rules were followed 9-2.3 Partial ROW Certification On Design/Build projects or when required in order .to advance the project schedule, ROW may be certified for construction on a partial basis or on a parcel -by -parcel basis, ;provided, that all of the elements and requirements under Sections 10-3 1 and 10-3.2,, above, are satisfied. -39- 255 Section 9-8 CHAPTER IX PROPERTY MANAGEMENT Marketing Available Properties 9-8.1 Property Advertisement When it has been determined that an RCTC property is .available to outside users, the following criteria will apply for notifying the public that the property is available: a. Use of Signs: For the majority of properties that are available for interim use, a sign which notifies the public that the property is available shall be placed in a very visual, strategic location on the property. The, sign will state in very large lettering that the property is "FOR LEASE". The sign will also include the telephone number to contact for additional information. b. The Property Manager may contact local real estate .agents/ 'brokers to market the property when it is determined that a very specialized user is required for the property and the other means of advertising or solicitations..has _not yielded a ,suitable user; When ..a, broker is ,used., . RCTC Shall bear the cost of any commission due to the broker. -40- 256 Section 9-9 CHAPTER IX PROPERTY MANAGEMENT Establishment of Rental Amounts 9-9.1 Rental Amounts a. Rental Amount for Carry -Over -Tenants: Generally, a carry-over will be charged the same contract rent as was paid to the former owner. A comparison will be made between the contract rent and the fair market value (FMV) rent as contained in the approved appraisal to determine if the contract rent is reasonable. An upward adjustment will be made to the rental amount if .the contract rent is below the current FMV rent for the property. Rental Amount for Carry -Over Owner -Occupants: The initial rental amount to be established will be the FMV rent contained in the appraisal uponwhichthe value of the property was determined This amount may be subject to adjustment due to month -to -month occupancy. Rental Amount for Private Entities: The rental of RCTC property to private entities shall provide for payment to RCTC at the FMVrental of the property. The FMV rental value and the rental rates shall be based on a current real property appraisal, adjusted to -reflect -the period of occupancy; - and the terms and conditions imposed by RCTC in the proposed lease/license. In the absence of an up-to-date real property appraisal, a :staff analysis may be prepared or the rental rate may be established on the basis of a market rental rate survey of comparable properties. Rental Amount for Public Agencies, Utility Companies and Non-profit organizations: The RCTC may consider the rental amount at less than fair market value when: = I! 1 The lessee or licensee or Permittee holder is a public agency or utility company or non-profit organization; 2 The use is for a public benefit and will not result in profit to any organization or private company; 3 The use will notadversely impact the future use of the =property for a transportation project; and 4 The use is compatible with adjacent land uses and benefits RCTC with reduced maintenance demands. -41 - 257 NOTE: Public Agencies, Non-profit Organizations and Utility Companies must meet the RCTC's standard agreement requirements as part of any agreement for the use of RCTC property. h. Administrative Fee: A one-time Administration fee will be charged for all uses of RCTC property. For all private entities, the standard fee is $1,500.00. For all public agencies, non-profit organizations and for additional uses of existing facilities, the standard fee is $500. Any variation in either of these fee amounts shall be approved by the ROW Program Manager. -42- 258 Section 9-10 9-10.1 Rent Collection CHAPTER 1X PROPERTY MANAGEMENT Rent Collection Procedures The Property Manager performs the following actions to assure the collection rent:. Assists in the collection of rent. All rents shall be collected in accordance with the terms and conditions of the Rental agreement. Rental payment shall be mailed directly to the RCTC Accounts Receivables (NR) Department for posting to the appropriate revenue account; Assists = RCTC accounting staff. in the.. creation, .:organization, maintenance of a rental collection system; All rental agreements shall be assigned an RCTC Identification number by A/R staff;, Apply periodic rental adjustments per the lease/license agreement; Handles collection efforts for delinquent accounts: And rental accounts where the current monthly is not received in total by the due date is considered delinquent; Assesses penalties to delinquent Tenants based on provisions rental/license agreement; Ensure Late Charges will be carried in the AIR books delinquent Tenants do not pay; Pursue rent collections, including late charges and interest on past -due obligations, if applicable, pursuant to the terms and conditions of the Agreement; If Tenant payment has not been received by RCTC within 15calendar days of the date when due, a past due notice will be mailedto Tenant; - 43 - 259 If Tenant payment has not been received by RCTC by the last day of the month when due, a second past due notice will be mailed to Tenant; k. If Tenant payment has not been received by RCTC by the 15 calendar day of the following month due, a Third and final past due notice will be mailed to Tenant; and If Tenant payment has not been received by RCTC by the last day of the following month when due, coordinate the filing of an Unlawful Detainer Action and seek a Judgment, if necessary, through General Counsel; -44- 260 CHAPTER IX PROPERTY MANAGEMENT Section 9-11 Property Liability/Loss Prevention 9-11.1- Insurance/Indemnity RCTC will 'maintain liability insurance coverage on non-leased/licensed properties as determined by the Manager of Risk Management. Insurance coverage for acquired property shall take effect at the time of the title transfer to RCTC. All ;parties using RCTC property under leasing; licensing, or other agreements will be required to maintain adequate liability and property insurance based on RCTC's insurance requirements, unless modified orwaived with the . consent of the RCTC Risk Manager. The Risk Manager shall review and approve the liability insurance and indemnification provisions prior to the cornpletion of all property agreements. Upon receipt of insurance documents from new RCTC Tenants, the Property Manager shall forward the Tenant's insurance :documents to the Risk Manager for approval. - The Property Manager monitors the uses permitted under property agreements and the potential risks and liabilities associated with the uses, The Property Manager, together with RCTC's Risk Manager, determinesthe steps necessary to reduce risk and the type and amount of insurance required to protect RCTC. a The Property Manager takes the following steps to reduce risk: 1 Notifies RCTC's Risk Manager, ROW Program' Manager, Maintenance Administrator and if necessary, legal counsel, of any unsafe activities or unsafe conditions ;and provide recommendations for corrective action; 2 Periodicallyreview the leased/licensed sites to verify compliance .fY . .. P with the environmental provisions of the agreement, 3 Evaluates the compatibility of the use; 4 Ensures that the property's use is legal; 5 Insists on adherence to safety policies; 6 Reviews the indemnification and hold harmless clauses; 7 Researches the insurance requirements; and 8 -Determines the types of insurance policies required, the evidence needed, and the coverage limitations. 9-11.2Hazardous Waste and 'Materials - 45 - 261 All properties are to be periodically inspected for adverse environmental conditions. If any evidence of hazardous material or contamination is, detected during routine management activities, the ROW Program Manager and Legal Counsel shall be contacted immediately. A plan of remediation will be developed by an approved environmental consultant. 9-11.3 Property Security RCTC-owned land and improvements that are unoccupied will be protected against unauthorized use, vandalism, and damage under the direction of the Property Manager and coordination with RCTC's Maintenance of Way Administrator and/or RCTC Transit Police and/or local police agencies, as needed. When a parcel has been assigned to a construction project, the security of the construction site, including all materials, equipment, supplies and off -site area ''is the responsibility of the construction Contractor. The contractor's activities shall be monitored by the Construction Manager and staff. The security of equipment, facilities, or other structures on RCTC leased and licensed property shall be the sole responsibility of the Lessee/Licensee until the lease/license is terminated. The Property Manager is responsible for conducting . periodic property inspections to verify that the Lessee/Licensee is securing the property as required by agreement in a reasonable _manner. 9-11.4 Property Maintenance All RCTC property shall be maintained in a clean and orderly condition. If this condition does not .exist, the Property Manager shall request the RCTC Maintenance of _:Way Administrator and/or approved vendor to implement, the appropriate corrective measures to improve the property's appearance. - 46 - 262 ti ..:t CO CO N CHAPTER IX DEMOLITION; CLEARANCE AND CERTIFICATION TABLE OF CONTENTS Section 9-1 Demolition and Clearance 9-1.1 Overview 9-1.2 Federal Funds 9-1.3 Pre -Demolition Activities 9-1.4 Personalty 9-1.5 Asbestos and Lead Paint 9-1.6 Demolition Contract 9-1.7 Clearance Section 9-2 Right of Way Certification 9-2.1 Elements 9-2.2 Requirements 9-2.3 Partial ROW Certification -1- 264 Section 9-1 9-1.1: Overview CHAPTER IX DEMOLITION AND CLEARANCE Demolition and Clearance The demolition and clearance of structures and other improvements on acquired property is included in the property management function. The Commission must manage real property acquired for a project until it is required for construction. Improvements include building structures or any other obstructions within the proposed right of way such as: 1 utilities, 2 underground storage tanks, 3 and wells 9-.1.2 Federal Funds a. Federal funds may be used to cover costs for the disposal and clearance of real property, pursuant to 23 CFR Subpart B, section 710.203(b)(4). Accounting documentation will be required in order to bill Federal participating revenue and expenses accurately. Other federal policies and procedures for managing real property on Federal -aid projects are contained in 23 CFR Subpart D, Sections 710.401 through..710.409. Prior to environmental clearance, improvements must not be removed except An cases of emergency. Emergency is defined . in the Caltrans Environmental Regulations as: a sudden, unexpected occurrence involving a _clear; and _imminen t - danger, demanding immediate action to prevent or mitigate loss of, or damage to. life, health, property, or. essential public services. Emergencies may include but are not limited to such .occurrences as fire, flood, earthquakes, riots,. accidents or sabotage. Historic structures : will . beidentified and addressed during the environmental clearance .process. If "applicable, documentation that details the compliance ;with -the mitigation and/or disposition of the historic structure will be necessary. 9-1,3 Pre -Demolition Activities :An inventoryof im rovements and personalty on the. roe will be prepared � P P tY property � . ; P P . and included in the appraisal report. The Acquisition . project :manager will forward the inventory: report to Property Management, along with anticipated vacation ` dates of the 'occupants. Property Management can then determine the best means of clearance based on the type ..of structure, the ; :right of .way. -2- 265 requirements, the construction schedule and the personalty that may beincluded in the inventory. Demolition of structures shall be scheduled as soon as possible when occupant vacation occurs. Close coordination with the acquisition project manager ensures that demolition activities begin on a timely basis. Weekly field inspections shall be performed by Property Management to ensure that properties are secured immediately . upon vacation. Upon contract award, the demolition contractor becomes responsible .for securing the property with boarding, fencing, etc. 9-1.4 Personalty If time allows, movable items that are purchased as a part of the acquisition may be sold by public auction. The property owner may elect to retain an improvement. If owner retention is offered during negotiations, the time frame for removal shall be included in the purchase agreement. Fixtures included in the real estate are generally included for demolition, however the cost of demolition should reflect an offset for salvage value. Prior to removal of improvements from excess land, FHWA approval must be obtained for federally assisted projects. 9-1.5 Asbestos and Lead Paint Abatement All improvements shall be inspected for the presence of Asbestos Containing Materials (ACMs) and lead paint when applicable, prior to demolition or removal. A qualified and licensed environmental consultant shall perform an asbestos survey. A report will be prepared that will include testing results and recommendations, which will be forwarded to the abatement contractor. All activities must comply with Environmental Protection Agency and local government regulations. RCTC shall comply with the Southern California Air Quality Management District (SCAQMD) guidelines. Removal of ACM will be -performed by orthrough the demolition_ _contract by a qualified and licensed .abatement contractor, and will comply with all applicable laws, regulations, ordinances and recommendations of the inspector. 9-1.6 Demolition Contract Clearance of improvements can be scheduled during the acquisition phase of the project using demolition contracts or be included as a work item in the construction contract. Certain circumstances, such as inaccessibility to the property improvements may call for using the latter methodology. A field inspection of the property is necessary to verify that items included in the inventory report are still physically included on the property. The demolition contractor will bid the work based on the items included in the scope of work, the results in the asbestos survey and a field review of the property. The bid package shall be prepared and will include the scope of work, the location of the property, ancillary items that shall be included i.e. trees, fencing, signs, underground storage tanks, etc., contact numbers as applicable, and the -3- 2 6'6 anticipated length of time for the demolition. RCTC uses a standard scope of work for demolition tasks that includes asbestos abatement, securing of property, order of work, applicable standards, compliance with regulationsand ordinances, among other items. On projects with Federal aid, contracts exceeding $2000 require .compliance with 29 CFR Subtitle A, Part 1 regarding the payment of predetermined minimum wages to certain employees and 29 CFR Subpart 3 regarding the submission by - the contractor of payroll information. Demolition is awarded on a task -order basis. Bids can be submitted within the week, particularly on smaller jobs where the contractors inspect the property on their own'. For larger jobs, Property Management shall schedule .a site. -walk with all on -call contractors! As the "duration'of demolition is generally for a short period,, the bid price shall be lump sum. The contractor's bid shall include all permits and fees, equipment rental, asbestos abatement, tank removal and subcontract work. Once bidsarereceived and a contractor selected, the task order shall be completed and sent to the contractor for signature on an expedited :basis. Once executed, a Notice to Proceed will be issued. 9-1.7 Clearance Prior to demolition, the first order of work is to notify SCAQMD, which requires a 10 working :day : notification prior to asbestos abatement. If an improved.: ,property becomes. a :health and safety hazard, Property Management_ can request that the. -SCAQMD notification period be waived on an emergency basis. During the SCAQMD notification period, the contractor will notify Underground Service Alert -for utility location, schedule equipment, and secure the; property. ;Prior to demolition, PropertyManagement must notify utility companies in writing to, discontinue service Once demolition activities commence, monitoring of the removal: 'shall be documented in writing and maintained in the parcel file. When final clearance is achieved, a :Right Of Way Availability notice shall be forwarded for inclusion; in the construction documents. -4- 267 CHAPTER IX DEMOLITION, CLEARANCE and RIGHT OF WAY CERTIFICATION Section 9-2 Right of Way Certification 9-2.1 Elements The Right of Way Certification procedure identifies the acquisition status of necessary ROW for the purpose of advancing a project to construction. It also addresses the status of any required relocation activities necessary on the project. The key elements are: a. acquisition of ROW in accordance with laws and requirements, so prospective contracts will not be stopped by related litigation; b. relocation of people, so that the contractor may enter upon the properties; c. identification of encroachments and acquired structures within the ROW, and an explanation of who will remove them; and d. hazardous waste identification that may be present at the site, with information on contractor's responsibility for safe disposal. 9-2.2 Requirements Prior to physical construction, the ROW staff shall prepare a statement that: a. All ROW is clear, or if not, appropriate notification is., given of any_ work concurrent with construction; b. All people relocated to Decent, Safe, and Sanitary housing, and one of the following applies: 1. All needed ROW acquired, all occupants have moved; or 2. Not all need ROW acquired, but right of entry obtained on all parcels, and all occupants moved; or 3. Acquisition of ROW not complete, and occupants still on the project — this action requires a full explanation and special assurances about occupant protection. c. Advise that ROW acquired in accordance with applicable federal, state and local laws; d. Advises that federal and state relocation assistance and payment rules were followed. 9-2.3 Partial ROW Certification -5- 268.. On Design/Build projects or when required in order to advance the project schedule, ROW may be certified for construction on a partial basis or on a parcel -by -parcel basis, provided, that all of the elements and requirements under Sections 10-3.1 and 10-3.2, above, are satisfied. -6- 269 CHAPTER X ENVIRONMENTAL INSPECTION, INVESTIGATION AND REMEDIATION TABLE OF CONTENTS Section 10-1 General 10-1.1 General 10-1.2 Technical Resources 10-1.3 Permit to Enter Section 11-2 Waste. Process 10-2.1 10-2.2 10-2.3 10-2.4 10-2.5' 10-2.6 10-2.7. 10-2.8 10-2.9 10-2.10 10-2.11 10-2.12 10-2..1,3. Discussion In PSR Site Investigation Notify Owner and Appropriate Regulatory Agencies Hazardous Waste Problems Discussed in Project Report Hazardous Waste Strategy Cleanup by Owner and/or Responsible Party Remedial Investigation / Feasibility Stud g ty Y__=: Hazardous Waste Management Plan Community Involvement Plan Remedial Action Plan Recovery Actions Underground Storage Tanks Hazardous: Materials in Property Improvements . Section 10-3 Clean Up 10-3.1 10-3.2 10-3.3 During Acquisition Right of Way Agreements for Contaminated Property Hazardous Waste Activities Section 10-4 Appraisal of Contaminated Property 10-4.1 Appraisal for Certificate of Sufficiency 10-4.2 Hazardous Waste Identification During Appraisal Inspection 10-4.3 Valuation 270 Chapter X ENVIRONMENTAL INSPECTION, INVESTIGATION AND REMEDIATION Section 10-1 General 10-1.1 General When acquiring properties for transportation (or transportation -related) projects, it is RCTC's''policy to fully consider all aspects of potential hazardous waste sites ensuring that adequate protection is afforded to ernployees, :-workers, and the community ,prior to, during, and after construction, and if possible, -to avoid all potential aspects of hazardous waste. RCTC strives to identify, investigate, and cleanup sites at the..,earliest opportunity during the : project development process. Under a normalproject development sequence, the entire process is completed in accordance- with applicable governmental hazardous waste requirements. Every project that includes significant excavation, structure 'demolition or modification, or the. purchase of new right of way, will require 'an Initial Site Site Assessment (ISA) to determine if known or potential hazardous waste is present within the project limits. Utility relocations, donations of property, and hardship, and protection acquisition must consider possible hazardous waste/material issues.' A rnaterial is hazardous if it poses a threat to human health or the _environment. Hazardous substances are substances or combinations of substances as defined in Title 22, California Code of Regulations, Section 6668p, Division 20, Health and Safety Code, Sections 25115 and 25117, ; or those substances defined. in 49 CFR 171.8 Hazardous materials may Y . be an of ,a lar .e- rou of y - g 9 P_ the products listed below. a. Flammable b. Reactive (subject to spontaneous explosion or flammability) c. Corrosive d. Toxic e. Radio -active The 'term :hazardous waste applies to the storage, deposit, contamination, etc., of a hazardous material that has escaped or been discarded or abandoned and. that may be defined in general terms as being any of the above. 10-1.2 Technical Resources On -call professional consultant services are available to assist in :resolving hazardous waste problemS Early and continued involvement by this resource: is essential in avoiding unnecessary cost and. delays from hazardous waste -2- 271 problems. Legal counsel is another resource that may be consulted regarding documentation for cost recovery. 10-1.3 Permit to Enter A Permit to Enter will be required for any physical testing to be done by RCTC to determine hazardous waste contamination, however, a detailed visual examination of the property to collect data for risk analysis can legally be performed without the need for a signed Permit to Enter, providing the property owner concurs. The statutory procedure for obtaining a voluntary permit for testing and other purposes is set forth in CCP 1245.010 and 1245.060. "Owner" should be given a broad interpretation to include the holder of any interest likely to be affected by the testing, including, for example, a tenant in possession. All parties with an interest in the property should sign the entry form, where possible. The following guidelines and the Permit to Enter forms are based on consideration of the law. Future legal actions may be compromised if required entry is not specific as to the proposed activity and specific as to location. a. Voluntary permit to allow State to perform test. See 'Exhibit 8-EX-13 for underground tank testing and Exhibit 8-EX-14 to be modified as necessary for other testing. Refusal of voluntary entry. 1. A court order will be needed to enter the property. This entry must be for specific testing and must identify exact locations for borings. 2. Any additional testing may necessitate further court orders which must alsobe obtained by the General Counsel, and must be specific and exact. c. Payment for Permit to Enter d. Payment for a Permit to Enter is appropriate under the law. -3- 272 CHAPTER X HAZARDOUS WASTE PROCESS Section 10-2 Waste 10-2.1 Discussion in 'PSR Hazardous waste problems; or potential problems, will generally be discussed' in the Environmental ;Impact Statement/Environmental Impact Reportand must ,be discussed =in- the Project Study Report (PSR), along with a recommended action for avoiding or mitigating hazardous waste sites, 10-2.2 Site Investigation If, after : completion of the ISA, a potential hazardous` waste problem exists, : a meeting will be scheduled to discuss alternatives, includingavoidance. If avoidance is not prudent or justified by the site assessment information, then a Site Investigation (SI) will be conducted. The SI is a limited -scale site investigation intended to confirm the existence of a _contamination problem and to get a general idea of the::. magnitude ,of the problem. Site investigations will be conducted to a level necessary to determine the relative magnitude of the problem, and to develop an order -of magnitude estimate of mitigation of cleanup costs. Site investigations shall include, but are not limited to,; characterization of subsurface geologic and hydrologic conditions, identification and ,extent of contamination, and analysis of potential remedial Rights of entry to gain permission to enter onto the property, if necessary for the SI investigation, should be initiated as soon as possible. Site investigations can vary in detail, depending- on .the number of sites to be investigated, the project schedule, and the number of project alternatives. After a Preferred Alternative is selected, a more complete site investigation is conducted ; to fully characterize the site in order to: (1) design the remediation, (2)` estimate the cost of the remediation, and (3) reevaluate the affected site's property value after factoring ;in the projected costs of hazardous waste remediation. 10-2.3 Notify Owner and Appropriate Regulatory Agencies When a SI has 'identified contamination at an actionable level, the property -owner and appropriate. regulatory agencies will be notified of the results in accordance with regulatory ',requirements. Notification shall be made to the owner and any other potentially responsible. parties of their obligation sunder the law for mitigation of the contamination. Determination shall be made whether the owner: is able; to -4- 273 and intends to investigate and remediate the site such that the project schedule can be meta Thorough Sl records should be maintained separately for potential use in cost recovery actions. 10-2.4 Hazardous Waste Problems Discussed in Project Report Following completion of the SI and environmental studies, alternatives to avoid the identified hazardous waste must be identified and evaluated. These problems and the associated alternatives for avoidance or mitigation must be discussed in any Project Report and environmental document. The reports, as appropriate, must include a discussion of any anticipated site cleanup, including a cost and schedule estimate. 10-2. Hazardous Waste Strategy If the property owner has agreed to accept responsibility for the hazardous waste remediation, and after investigation, decides to accept responsibility for both the execution and expense of the cleanup, RCTC shall develop a plan of action that incorporates the owner's intent and that specifies a program which shall be followed. It is also possible. for the owner to have investigated the hazardous waste cleanup and decided to have RCTC clean up the problem. The cleanup costs, as well as any ,additional investigative work required for the cleanup, would be deducted from the appraised property value. If the property owner cannot or will not investigate and remediate the site, RCTC shall continue investigating the hazardous waste problem. It will be necessary to determine whether time ::allows for hazardous waste investigation- and remediation prior to construction of the transportation project or whether it will be necessary to perform the clean up during construction. Legal counsel :may be requested to oversee cost reimbursement from the owner and/or responsible parties:. 10-2.6 Cleanup by Owner and/or Responsible -Party When the owner and/or responsible party has accepted cleanup responsibility, RCTC is responsible for monitoring their investigation and cleanup progress and to make appropriate schedule changes. If at any point in the monitoring, the owner's progress is unsatisfactory, Right of Way staff must determine if the schedule slippage is such that RCTC should take over the investigation and/or remediation process. RCTC shall prepare an estimate of any cleanup costs incurred and provide a report to the appraiser for inclusion in the appraisal report. 10-2.7 Remedial Investigation / Feasibility Study A comprehensive Remedial Investigation/Feasibility Study (RI/FS) will be required if substantial contamination is present, or if the site is a listed. State or Federal Superfund site. The RI/FS. will be performed to develop sufficient information to make an informed remedial alternative selection that eliminates, reduces, and/or controls the risks to human health and the environment. -5- 274 The Remedial Investigation is a site investigation adequate to characterize the site's size and the types and quantities of contamination that are present. The FeasibilitTStudy is an evaluation of the types of remediation that will clean up the site's contamination. Remediation strategies range from excavating the contamination for disposal at another site to complex vapor extraction systems or bioremediation techniques. The Rl/FS, work will be coordinated with regulatory agencies and is subject to changes pursuant to the requirements of the.: agencies. Legal counsel must be contacted 'regarding appropriate hazardous waste 'investigation .records to be retained for cost recovery actions. 10-2.8 Hazardous Waste Management Plan The RI/FS for potential mitigation measures for the hazardous • waste; site constitutes the Hazardous. Waste Management Plan (HWMP).,The HWMP is a. decision -making document that describes the management of a- contaminated site, including cleanup, schedule. It summarizes the results .of the RI/FS. The RI/FS will include a list of remediation options for cleaning up the site. Typically the HWMP is developed at the conclusion of the hazardous waste investigation. Involvement of potential responsible parties is advised, so that any.. cost recovery efforts cannot be challenged on the basis that the parties were excluded from the mitigation decision process. 10-2.9 Community Involvement Plan It is advisable to provide the public with early notification of significant hazardous` waste investigations and subsequent cleanup activities. This often defuses potential adverse public reaction that may otherwise occur when the cleanup work begins. The lead regulatory agency is responsible for coordinating the community relations in conjunction with the RCTC Community. Relations department for all community involvement issues and. activities. .10-2.10 Remedial Action Plan -Once a cleanup strategy has been selected, a Remedial Action Plan (RAP) needs to be developed to implement the remediation. The RAP specifies the details required' to carry out the selected remediation'strategy The RAP will be prepared by.a'n on -call consultant firm. Depending on the type and extent of contamination, the RAP may require approval by appropriate regulatory agencies, as well as necessary public notification. On -site treatments will need permits from various regulatory agencies. 10-2.1 ` Recovery Actions Whether- .the contamination : is encountered" prior ,to 'construction: or during the construction phase, legal counsel may assist:' pursuing appropriate cost recovery from -potentially responsible parties. Right of -Way will provide information for such recovery action. -6- 275 10-2.12 Underground Storage Tanks Underground tanks should be removed as soon as possible. The contractor must obtain the required permits for operating or closing all existing tanks from the local permitting agency, and this information must be included in the removal contract. Also, any contract for tank removal must include provisions for barricades and cleanup. Prior to any tank removal, an agreement must be made with the tenant in occupancy and the owner of the property. Non -leaking tanks may have a minor deposit of product under the tank that can be cleaned up during the tank removal. The State Underground Storage Tank Law is contained in Chapter 6.7, Division 20, Health and Safety Code, and Underground- Tank Regulations, Subchapter 16, Chapter 3, Title 23, California Administrative Code. 10-2.13 Hazardous Materials in Property Improvements Asbestos containing materials (ACM) must be fully considered to ensure property with such hazardous material is not acquired without .adequate prior investigation, valuation analysis (if applicable) and clearance abatement. Hazardous materials primarily include asbestos, but can include PCBs and lead based paint. Inspections will be performed by Licensed, qualified persons. The property owner must give prior written permission before an inspection can be made. The inspection will -include a determination of: a. The type, extent, location, and quantity of ACM (and any other suspected significant hazardous material), within the structure; Condition of the ACM - friable, non -friable, stable or deteriorating; c. Identification of and cost of appropriate remedial action(s): 1. Removal 2 . Other acceptable steps (encapsulation) 3. Cost of restoration. Every improved property will be inspected except those improvements constructed with materials which can be easily determined do not contain hazardous materials (example: all metal storage buildings). -7- 276 CHAPTER X CLEAN UP Section 10-3 LIR 10-3.1 During Acquisition . Responsibility for Clean If a contaminated site is encountered and unavoidable, RCTC should make every effort to have the owner and/or responsible party investigate and clean' up the contamination prior to acquisition. In cases where RCTC :must clean up contaminated property, cost reimbursement will be sought from the responsible party. Right of Way staff will provide the primary source. of contact with property owners and operators. Regardless of who is responsible for performing the cleanup of a contaminated project site, such cleanup should be completed at the earliest opportunity. Only in exceptional cases, (e.g., contamination in areas that must be excavated during construction) will mitigation of the contaminated materials be allowed concurrently with project construction. Once contamination is known, the property owners shall be advised of their responsibility under the law to clean up all identified hazardous waste The preferred procedure is to not acquire property in its contaminated state, and all efforts possible should be extended to obtain cleanup prior to acquisition. Right of Way staff may elect to proceed with acquisition if it is determined that no significant problem exists and further investigation is. unnecessary. It may be.:: 'in the best interest of RCTC to acquire property , if potential' hazardous waste contamination risks and costs are low or the problem .can; be handled' with engineering methods during construction. The decision to acquire must be fully documented in the parcel file and the appropriate clause must be included in the Right of Way Contract. If further investigation is necessary, Right of Way staff will continue contact with owner to advise of the .process being pursued and to obtain necessary permits to :enter. When testing is complete and cleanup costs are known, the appraisal will reflect the effect that the contamination and required cleanup has on market value. Settlements, whenever possible, are to be based on cleanup prior to acquisition using the primary appraisal. Settlements made where cleanup occurs after acquisition are to be handled as follows:. -8- 277 a. Offers made prior to obtaining a revised appraisal will be made contingent on cleanup and shall be confirmed in writing. When the appraisal has been revised to include an alternate, considering the effect on the market value, the current offer must be withdrawn and a new offer made. b. If settlement is reached based on RCTC or its consultant doing the cleanup based on the primary appraisal, the amount of the estimated cleanup shall be withheld and the appropriate clause will be included in the Right of Way Contract. Appropriate documentation is required. -c. 1f settlement is not reached where money is withheld; it may be necessary to acquire based on the alternate appraisal wherein RCTC is purchasing the property as is, after the consideration of cleanup is reflected in the acquisition offer. Again, appropriate documentation in the file is required d. Where settlement cannot be reached and the property owner will not clean up the property, it may be necessary to file a condemnation suit and obtain an Order of Immediate Possession. The appraisal must be revised to include an alternate that reflects the effect of the hazardous waste on market value. The current offer must be withdrawn and a new offer made prior to filing an action. 10-3.2 Right of Way Agreements for Contaminated Property Properties known or suspected tocontain hazardous waste should be cleaned up :by the grantor, to the satisfaction of RCTC, 'prior to the close of escrow. When this is not feasible or practical, the appropriate clause listed below, depending on the situation, will then be included in the contract. Tested - No Contamination Found. When a decision has been made to proceed with acquisition, because the property has been examined: and/or tested and no contamination has been found, the following clause will be included in the contract: "The acquisition price of the property being acquired in this transaction reflects the fair -market value of the property without the presence of contamination. If the property being acquired is found to be contaminated by the presence of hazardous waste which required mitigation under Federal or state law, the State may elect to recover its cleanup costs from those who caused or contributed to the contamination." Tested Contamination found. When contamination has been found, the amount of cleanup costs for which the grantor is liable, shall be deducted from the settlement, and one of the following clauses will be included in the Contract "It is understood that the property being acquired has been used for and that there is contamination of the soil and/or groundwater. Therefore funds in the amount of $ have been withheld from the Grantor by the State to be used for cleanup costs. If actual cleanup costs exceed the deducted amount, the Grantor will reimburse RCTC for the additional costs. If actual cleanup costs are less than the amount withheld from grantor, the excess withheld will be refunded 278 to Grantor." (Alternate)"It is understood that the property being acquired has been used for and that there is contamination of the soil and/or groundwater. The acquisition costs of $ reflects a deducted amount of $ to be used for the anticipated costs of cleanup of such contamination." Not Tested - Present Owner's Hazardous Material Use. When acquisition proceeds and when the nature of the grantor's current or past operations and hazardous material use is known to all of the parties, the following clauses will be included in the Contract: "The acquisition price of the property being acquired in this transaction reflects the fair -market value of the property without the presenceof contamination. If the property being acquired is found to be contaminated by the presence of hazardous waste which requires mitigation under Federal or State law,RCTC may elect "t0 'recover its cleanup costs ;from those who caused or contributed to the contamination. It is understood that the property being acquired has been. used for and that there is a possibility of contamination of the soil. The seller of this property, warrants that it will be responsible for the costs of any mitigation required by any regulatory agency as the consequence of contamination . of the soil and/or groundwater. Seller hereby agrees to indemnify and hold harmless the State from any and all past, present and future claims, liabilities, obligations, or causes of action from any person or source arising out of or connected with hazardous materials on the property or hazardous waste on, in, or under the property which. is the subject of this agreement." Not Tested -Known' Past Hazardous Material Use. When acquisition proceeds, and when the current use/operation has not been contaminated, .and grantor says they have some knowledge that previous use/operations may have caused contamination, then the following clause will be included in the ;Contract:."It is understood that the property being acquired in this transaction may contain hazardous waste- requiring mitigation under State or Federal law to protect the public health. The acquisition costs reflect the fair -market value of the property without the presence of contamination. If site cleanup is, required on the property, the State may elect to exercise its right :to pursue : the responsible parties to, recover cleanup costs fromthose who caused or contributed to the hazardous waste .contamination on, in or under the property." Not Tested -Unknown Hazardous Material Use. When acquisition ;proceeds, and the possibility of hazardous waste is suspected, :but the grantor indicates no knowledge of present or past operations which could have resulted in contamination, the following clauses will be included in .the Contract: "The seller hereby represents and warrants that during the period ,of Seller's ownership of the property, there have been no disposals, releases or threatened releases of hazardous substances on, from; or under the property. Seller further represents and warrants that .Seller has no knowledge .of any disposal, .release, or threatened release of hazardous substances on, from, or under the property which may, : have occurred prior to Seller taking title to :the 'property. The acquisition price of the property being acquired in this transaction reflects the -10- 279 fair -market value of the property without the presence of contamination. if the property being acquired is found to be contaminated by the presence of hazardous waste which requires mitigation under Federal or State law, the RCTC may elect to recover its cleanup costs from those who caused or contributed to the contamination." 10-3.4 Hazardous Waste Activities Activities during acquisition will include the following: a. Determine and communicate market value inspection needs when they are different from the remediation requirements for project construction. b. Identify and track all parcels requiring hazardous material inspections. c. Monitor projects and parcels requiring investigations for completion status in accordance with schedule and lead-time requirements. d Prepare and administer hazardous material inspection contracts. e. Coordinate with legal counsel as necessary. f. Secure entry approvals from property owners as required for investigations. g. Approve inspection reports on hazardous material and projected remedial actions and costs.. h The early identification of utility relocation easements to be acquired so they may be cleared of potential hazardous waste problems. -11- 280 Chapter X UTILITIES TABLE OF CONTENTS Section 11 Utility Relocation 11-1.1 General Provisions 11-1.2 Scope 11-1.3 Utility Coordinator Responsibilities 11-1.4 Definitions a. Exempt Facilities b. Facility c. FHWA Specific Authorization d:: -High Risk Facilities e: Liability f. Low Risk Facilities g. Owner h. Positive Location i. PSIG j. Utility ;Coordinator Section 11-2 Policy 11-2.1 Applicable Utilities Policy 11-2.2 Encroachments 11-2.3 Hazardous Waste Impacted by Facility Relocations 11-2.4 Verification of Utility Facilities 1°1-2.5 High and. Low Risk Underground Facilities 11-2.6 Advancing Cost of Relocation to Owner 11-2.7 Inspection of Relocation Work 11-2.8 Authority for Utility Facilities Within Local & State Thoroughfares 11-2.9 Private Utility Facilities Section 11-3 Planning Phase -12- 281 11-3.1 11-3.2 11-3.3 11-3.4 11-3.5 11-3.6 Initial Activities Preliminary Engineering Future Project Coordination Corridor/Route Preservation Environmental Document Review Special Environmental Reviews for 50KV Electrical Facilities Section 11-4 Design Phase 11-4.1 11-4.2 11-4.3 11-4.4 11-4.5 11-4.6 11-4.7 11-4.8 11-4.9 11-4.10 11-4.11 11-4.12 11-4.13 11-4 14 11 4.15- 11-4.16 11-4.17 11.4.18 Design Phase Commencement of Design Identification and Protection of Utility Facilities Design of Utility Facility Relocations Replacement Right of Way for Utility Facilities Utility Consultant Design Requirements Utility Verifications Geometric Base Maps Utility Verification Request to Owner Owner's Verification of Facilities Positive Location of Underground Facilities Positive Location Requirements for High Risk Facilities Liability for Ordered Positive Locations Utility, Conflicts Identified Conflict Maps Request for Relocation Plans, Claim of Liability, and .Estimate of Cost Receipt of Relocation Plans, Claim of Liability, and Estimate of Cost Special Provisions Section 11-5. Acquisition 11-5.1 11-5.2 11-5.3 11-5.4 Utility Acquisition Uniform Acquisition Act Requirements Acquisition from the. Utility Owner Consent to Condemnation for Exchange Purposes From the Owner Section 11-6 Liability Determination 11-6.1 Process 11-6.2 Determining Superior Rights 11-6.3 Liability Calculation 11-6.4 Property Rights 11-6.5 Fee Ownership 11-6.6 Easement 11-6.7 Implied Secondary Easement -13- 282 11-6.8 Joint Use and Consent to Common Use Agreements 11-6:9 Prescriptive Rights 11-6.10 Lease 11-6.11 License 11.6.12 Franchise 1.1-613 Encroachment Permit 11-6.14 Joint -Pole Agreement 11-6.15 Utility Agreement 11-6.16 Abandonment or Removal Costs 1.1-6.17 Disruption of Service Facilities 11 6.18 Relocation_ for Non -Transportation Project Use 11-6.19 Liability Undetermined 11-6.20 , Liability in Dispute 11-621 Agreement to :Disagree Section 11-7 Federal/State and Local Aid 11-7.1 FHWA 11-7.2 CALTRANS Role 11-7.3 Master Agreement - 14 -. 283 Section 11-1 Provisions 11-1.1 . Scope. CHAPTER XI UTILITY RELOCATIONS General This chapter prescribes the policies and standards governing the utility relocation and reimbursement procedures and practices to be used by the Riverside County Transportation Commission ("RCTC") on federal, state, and locally funded local projects. The chapter is organized based on the usual sequence of events from project planning to project completion. These procedures are intended for use as. general guidelines :by RCTC in the execution of their projects.. . 11-1.2 Utility Coordinator Responsibilities The RCTC is responsible for relocation or removal of utility facilities that are either in physical conflict or in violation of RCTCs utility accommodation policy for transportation projects. This responsibility shall be delegated to theRCTC Right of Way section CROW'), shall be selected through RCTC's procurement process the Utility Coordinator(s) to implement RCTC's policies, including the following specific directions. Utilities Coordinator shall be instructed to: a. Establish files that document actions taken or recommended during the life of a project. The multiplicity and difficulty involved in the relocation of utility facilities and their potential safety impacts makes it mandatory that files be established and thoroughly documented. Any discussion, meeting, or review of importance that does not generate a document for the file should be recorded in a diary or memorandum. A diary can become critical for maintaining current project status or for documenting past actions and, consequently, should be a part of each file. Each Utility Coordinator should evaluate the needs of each project and initiate a procedure for a utility file diary. The author should date and sign or initial all diary entries and notations in the file. -15- 284 Prepare route estimates based on possible relocations. Act as the county's primary point of contact with the Owners for identifying and verifying all utility facilities lying within the existing and proposed rights of way of planned construction projects. Coordinate positive location requirements for all High/Low risk utility facilities within the project limits. Coordinate with Contracts and Procurement on preparing Contractor Task Orders (".CTO”). Obtain and analyze' data to allocate cost between Owner, RCTC, State and/or Local (when applicable) for all required. utility adjustment work and to clearly document, support, and set for the basis of this finding in a Report of Investigation. Assist in preparing and/or reviewing High/Low risk policy exceptions (deviations). Review utility consultant design agreements when required for utility relocation. Prepare and issue Notices to Owner and Utility Agreements in' accordance rwith_delegated authorities. Coordinate the preparation of the R/W Certification for proposed. construction projects. Verify Owner's relocations invoices and process for payment when acceptable: . Coordinate preparation of and review necessary property right conveyances for Owners. Provide oversight activities to Local Public Agencies ("LPA") and consultants on transportation projects funded :by others. Coordinate invoicing and refunding of LPA funds relating to utility costs pursuant to Cooperative Agreement provisions. Coordinate with RCTC offices, divisions, and external organizations, both: public and private, to ensure the above directions are implemented. 1.1-1.3 Definitions The following definitions are for purposes .of the Utilities Chapter only. -16- 285 a. Exempt Facilities Facilities exempt from the requirements of this policy: 1. Natural gas service lines of 2 inches O.D. or less with normal operating pressures of 60 PSIG or less 2. Underground electrical service conductors with a potential to ground of 300 volts or less 3. Any electrical facility with a potential to ground of 50 volts or less 4. RCTC-owned electrical facilities operating at 300 volts or less potential to ground. 'Facility - Facility is synonymous with utility facility. A facility is any pole, poleline, pipe, pipeline, conduit, cable, aqueduct, or other structure or appurtenance used for public or privately owned utility services, or used by any mutual organization supplying water or telephone service to its members. c FHWA Specific Authorization — The authorization, received from FHWA or provided by the State on behalf of FHWA under the Alternate Procedure, to proceed with a specific utility facility rearrangement. This authorization also approves the relocation plans, estimate of cost, and claim of liability. d. High Risk Facilities — Facilities conducting the following materials, whether encased or not: 1. - Petroleum products _2. Oxygen - 3. Chlorine 4. Toxic or flammable gases 5. Natural Gas greater than 6" outside diameter ("O:D.") pipelines with normal operating pressures greater than 60 PSIG 6 Underground electric supply Lines, conductors, .or cables that have potential to ground of more than 300 volts, either directly buried or in duct or conduit, which do not have concentric grounded or other effectively grounded metal shields or sheaths. e. Liability — A financial obligation, which as used in this manual section, is who has responsibility to pay for relocation of utility facilities affected by the RCTC's project. Low Risk Facilities — Facilities conducting the following materials: 1. Natural gas in pipelines 6" O.D. or smaller with normal operating pressures 60 PSIG or less 2. Underground electrical lines, conductors or cables with a potential to ground of more than 300 volts, either directly buried or in duct or conduit, which do have which do have concentric grounded or other effectively grounded metal shield or sheaths, for which the Owner furnished location information in conformance with the requirements of -17- 286 Article 17.7 "Location Information" of General Order No. 128 of the California Public Utilities Commission, or electrical underground conductors with a potential to ground of 300 volts or less. Owner — Owner is synonymous with Utility Owner. An Owner is any private entity or public body (including city, county, state, public corporation or public district) that owns and operates a utility facility. Positive Location - Positively determining the existence and location of is utilityfacility to within 0.5 feet through the use of potholing, robin y 9 p g; probing, electronic detection, certified as -built plans, or combination thereof as deemed acceptable by the Project Engineer. PSIG Pounds per square inch gauge pressure. Utility Coordinator — :RCTC representative responsible for relocation and removal & facilities that are either in physical conflict or in violation of RCTC utility accommodation policy for transportation projects. -18- 287 CHAPTER XI APPLICABLE UTILITIES POLICY Section 11-2 Policy 11-2.1 Applicable Utilities Policy The_following_is a selected 'list of policies that originate from :law, state and local °directives' that shall be uniformly -applied - in -all applicable utility relocation situations. 11-2.2 Encroachments All utility encroachments _within RCTC rights of way and/or project limits ("right; of way") shall be installed and maintained so as to minimize traffic disruption and other hazards to transportation users. Facilities shall be located as close to the edge of the right of way line as reasonably practicable. Facilities shall be installed to minimize interference with right of way maintenance and operation, and to prevent impairment of the stability of the rights of way or its appurtenances to the maximum extent practicable. 11-2.3 Hazardous Waste Impacted by Facility Relocations Utility relocation work structured within the project limits is -a necessary part of project construction. Any hazardous waste (" HW') encountered within_ the project limits as a result of RCTC structured utility work is handled in the same manner as HW encountered by any other part of the project construction. The Engineering shall be informed of all potential utility adjustments that may affect identified HW sites so the work is identified as part of project remediation -19- 288 HW encountered outside the project limits, such as on the grantor's remaining property, other private property, or on local streets and roads beyond the limits of the project, is not RCTC's remediation responsibility. Any extraordinary costs associated with remediation or unusual work requirements .due to HW encountered outside the project right of way are considered part of the Owner's necessary relocation effort. RCTC may pay its proportionate share of these costs as part of normal relocation reimbursement in accordance with the usual liability determination process. All exceptions this policyshall be processed through RCTC ROVV for approval: 11-2.4 Verification of Utility 'Facilities Pursuant to Government Code Section 4215, governmental agencies shall make every reasonable effort to locate all existing utility facilities within the right of way of a proposed construction project and to identify the facilities on construction contract plans. Failure to identify utility facilities on plans may make the RCTC Liable for damages to the facilities resulting from ,planned construction. 11-2.5 High and Low Risk Underground Facilities The RCTC is responsible to provide a safe environment for its employees and :contractors, as _well as the traveling public. , _ An .important: element of. the safe environment is providing a clear and safe right of way through the proper placement, protection, relocation, or removal of utility facilities that may. pose a safety risk to the transportation worker or user when the utility is excavated, cut, or penetrated. Toward this end, RCTC shall establish and enforce mandatory standards and procedures for the placement .and protection of underground utility facilities within the project -rights of way and for the safety of transportation workers involved in maintenance or construction operations in proximity of i underground utility facilities. 11-2.6 Advancing Cost of Relocation to Owner RCTC shall not advance the Owner's- pro rata share of the relocation cost. Funds shall be advanced only after it has been conclusively shown that the Owner is financially. unable to bear the cost of relocation and is unable to secure other financing for the work. When an advancement is made, interest shall be charged in accordance with the terms of an agreement. Funds shall not be advanced to cover any betterment to the facility`; requested by the Owner. . 12-2.6 Inspection of Relocation Work The Utility Coordinator shall communicate : allcoordination of utility work, including modification of the scope of work, or the need to have utility work' -20- 289 performed on :premium or overtime, to the Owner in writing. An amended Notice and Utilities Agreement shall cover significant changes. RCTC shall make all liability determinations after investigation and recommendation by the Project Manager. 11-2.7 Authority for Utility Facilities Within Local & State Thoroughfares State law authorizes the free use of Local and State thoroughfare rights of way for public utility facilities owned by public agencies or by private companies recognized by the California Public Utilities Commission .as a provided of a public utility service, when such use does not interfere with the primary purpose of the Local or State thoroughfare. All utility facilities and other encroachments located with in the project right of way limits must be covered by an Agreement or Permit. 11-2.8 Private Utility Facilities A private utility facility is one that provides a utility service for the exclusive use of a privately owned business, or provides an exclusive service to improvements and occupants of an individually owned property. Examples of this type of utility facilities are: a. Facilities located on military grounds, owned and maintained by the _ property owner for their exclusive use. _ _ b. A facility -interconnecting individually owned but dispersed operating sites providing an exclusive and private service to the site owners. Separation of the private utility facility from the public utility facility occurs at the point where the privately owned and maintained facility connects to the public facility. -21- 290 CHAPTER XI PLANNING PHASE Section=11-3 Planning 11-3.1 :Initial Activities Duties relating to this phase of the project are normally performed :prior to Environmental Clearance and Project Report approval. Activities generally consist of: a. Corridor/Route Preservation b. Route Estimating c. R/W Data Sheet Preparation d. DraftProject Report Review e. Draft Environmental Document Review 11-3.2 Preliminary Engineering State law dictates that environmental clearance must be received prior to commencement of any project. This does not preclude Owner performance work . critical for inclusion in the environmental document. This work is generally referred to as preliminary engineering and includes such items as • Facility verification effort, including necessary positive location work. . Owner effort required identifying new utility facility rights of way and resultant environmental_ impacts. -22- 291 Note: FHWA procedure compliance applies with Federally: funded transportation projects. 11-3.3 Future Project Coordination Utility Owners require lead-time to develop budgets and plan work required for ordered relocations. Additional lead time may be required to order long lead time materials, to schedule work during non -peak demand periods when utility facilities may be removed from service, and to comply with PUC General Orders. It is critical that the RCTC Utility function establish early and continuing coordination with all Owners being affected by proposed projects. Many local agencies hold periodic coordination meetings with Owners within their jurisdictions to discuss planned public works projects in general. RCTC Utility Coordinators are encouraged to discuss RCTC projects at these meetings or to conduct their own liaison meetings. 11-3.4 Corridor/ Route Preservation On occasion and in an area of development, Owners may plan extensions or additions to their utility facilities within RCTC right of way and/or project area. These new utility facility installations may be affected by planned construction or development. The RCTC Utility Coordinator is responsible for notifying the Owner of all planned improvement projects within RCTC to enable the Owner to make an informed decision about lacement of utility facilities within the project. right of way. . P = Y ,. R J A special Utility Agreement may be entered into with the Owner to cover the extra cost of installing their facilities clear of RCTC's future construction. If the Owner's new facilities are planned for installation in a local street or road underlying RCTC's project, any additional cost is the Owner's. , Where the Owner. . has a superior right to RCTC's interest, the additional utility construction features required to satisfy the future project needs is at RCTC's expense. 11-3.5 Environmental Document Review The draft environmental document must be reviewed to ensure that utility relocation impacts are addressed; for example, where an underground facility will be relocated across an environmentally sensitive area such as a wetland. Potential HW impacts resulting from construction projects are usually addressed in the environmental document. If HW is a potential problem on the project, the Utility Coordinator must ensure that the requirements of Section 12-1.6 are addressed in the document. It is also critical to ensure the environmental document does not propose mitigation commitments that may be in conflict with existing laws or current RCTC policies. Conflicting commitments must have RCTC prior approval. -23- 292 If utility facility relocations are addressed in the document, then wording such as the following should be used but not placed in the "Mitigation Section." - "All public and private utility facilities impacted by the proposed transportation project will be relocated and/or accommodated in accordance with State law and regulations and RCTC's policies concerning utility encroachments within transportation rights of way." 11-3.6 Special -Environmental Reviews for 50KV Electrical.: Facilities Major electric facilities :involving power lines and substations operating in excess of,SOKV may require special permits and environmental review per PUC General Order131-D.. `Potential relocations of this type require early coordination with the PUC ;regulated electric Utility Owner to determine General Order applicability., If. an environmental review is necessary, including the utility .relocation within the_, transportation environmental document may substantially reduce - lead-time requirements for the utility relocation. Questions concerning :applicability of this Order to a particular relocation must be resolved between the Owner and the PUC CHAPTER XI DESIGN PHASE Section 11-4 Design 11-4.1Design :Phase Activities generally performed in the design phase: of a project are: a. Coordinate identification and verification of existing facilities Assist in :identification of utility facilities in physical conflict or in violation of. RCTC's utility accommodation policy: c. Assist in identification of all high and low risk utility facilities and coordinate: the positive location of these facilities as required. Prepare the Notice to Owner, Utility Agreement; and Report ,of 'Investigation for positive location: Bill the local or state agency pursuant t0 a Cooperative Agreement when there is one -24- 293 Request and review Owner's relocation plans, claim of liability, and estimate of cost. Review and prepare encroachment exception requests for accommodation policy conflicts. i. Coordinate planned placement of utility facilities on structures. j. Prepare "Special Provisions." k. Prepare the Notice to Owner, Utility Agreement, and Report of Investigation for relocations." 11-4.2 Commencement of Design The approved Project Report (and Environmental Clearance) is the final document that authorizes a transportation project to proceed to design. Upon receiving this report, the Utility Coordinator and Project Engineer commence the detailed utility verification and relocation design process. To commence, the Utility Coordinator shall arrange a meeting with all impacted Owners and the Project Engineer. The meeting purpose is to: a. Discuss the general project Identify utility impacts Discuss alternative solutions to transportationlutility conflicts d. Identify need for Owner required utility consultants e. Determine a schedule for future coordination meetings Note: The Utility Coordinator is responsible to take a proactive role to help sure that all projects are proceeding in a timely, manner and .that verifications are requested for all projects. 11-4.3 Identification and Protection of Utility Facilities Government Code Section 4215 states that the public agency shall assume responsibility for protecting utility facilities not identified in the plans and specifications for the project. Every reasonable effort, therefore, should be made to locate all existing facilities and delineate their locations on project plans. The law is not restricted to hidden or underground facilities. A clearly obvious aboveground facility located within the project must also be included if the facility will remain within the project. RCTC's contractor is required to take reasonable and prudent steps to ascertain the exact location of underground facilities. If. the contractor has done so but damages still occur to a facility not shown on the plans, RCTC may be responsible for damages to the facility and all resulting protection requirements. -25- 294 The facility owner is . responsible for Underground Service Alert ("USA") notification prior to any construction. 11-4.4 Design of. Utility Facility Relocations The facility owner shall be responsible for design of all utility facility relocations. . The only `'exception is when the Owner has requested RCTC to .perform the design and construction to be done as part of the transportation project. The design and construction of the relocation shall be included in a Utility Agreement, and the Utility Coordinator shall remain the primary point of contact for liability and coordination of; work activities between Owner, RCTC and LPA (if applicable). Replacement Right of Way for Utility Facilities Acquisition of a replacement right of way for the relocation of utility facilities: may become a major .obstacle to timely relocation. When the Utility . Coordinator determines that replacement right of way is needed, the utility owner's plans -are forwarded to the Project Engineer for inclusion in the design. The Project Engineer will prepare plans and forward them to Utility Coordinator for acquisition. If the 'Utility Owner has superior occupancy °rights, RCTC can acquire the needed replacement right of way. The Owner normally selects the replacement right of way location, subject to the normal constraints of providing for necessary functional replacement only. Either RCTC or the _Owner may:. accomplish ::,the .acquisition RCTC may acquire the replacement right of way by the following methods (inorder of preference): = a. Acquired in the name of the Owner, preferably on the Owner's own deed; form. Acquired in the name of RCTC by deed and subsequently conveyed to the Owner Use of RCTC owned (or to be acquired) excess land. Care must be exercised in making any commitments regarding acquisition: of excess land.. If the utility facility being displaced is not in a superior right status, RCTC may acquire the replacement utility easement as a convenience to and at the expense of the Owner, but cannot condemn for it. Where the facility was in an _encroachment permit status only (non -prior rights), replacement utility easements, must never be acquired at RCTC expense, as this would constitute a gift of public funds. 11-4.6 Utility Consultant' Design Requirements Relocation work :is normally done by the Owner's employees. If the. Owner is unable to perform their own design or elects to -.have design work done by a consultant, and the design costs are to be Teimbursed by ROTC, the Utility Coordinator must discuss with the Owner,RCTC's need to review :the Owner's consultant costs. -26- 295 If RCTC's Project Engineer disapproves the Owner's consultant cost, RCTC then reserves the right to have the work done by others. 11-4.7 Utility Verifications The Project Engineer is responsible to identify and locate all utility facilities that lie within the right of way boundaries of the planned construction project. This is accomplished through a joint field review of the project area by the Project Engineer and the Utility Coordinator, as well as, asking for specific verification of facilities from each Owner that may have facilities within the project area. The need for this identification and verification is to: a. To identify all potentially utility/project conflicts so they may be cleared before project construction commences. 11-4.8 Geometric Base Maps The .Project Engineer develops geometric base maps (base maps) that are used as the base for identifying all known existing facilities within the project Limits. Identification is a necessity even if proposed construction is entirely within existing rights of way. The Project Engineer will obtain the initial utility information the following sources and delineate it on the base maps: As -built drawings for prior construction projects with state and local agencies._ Ground 'and aerial surveys c. Permit files d. Field review of the project e. R/VV Utility files The base maps will also .show existing and proposed right of way lines, as well asexisting and proposed access control lines, where applicable. Three sets of base maps are required for each Owner involvement (two sets for the Owner and one set for the Utility Coordinator's files). 11-4.9 Utility Verification Request to Owner The Utility Coordinator sends the base maps to each Owner with known, existing, or potentially existing facilities within the project area. Normally, the Owner is allowed 30 days to respond. The Utility Coordinator is responsible for follow-up to ensure timely completion of verification. 11-4.10 Owner's Verification of Facilities Upon receipt of the Owner's verification of facilities lying within the project area, the Utility Coordinator: -27- 296 a. Transmits Owner's :verification facility locations to the Project Engineer in identifying utility facilities in conflict with RCTC's accommodation policy. Assists the Project Engineer in identifying utility facilities in conflict with RCTC's accommodation policy. c Assists the Project Engineer in identifying high and lowrisk facilities.- If no physical or utility accommodation policy conflicts are identified, the "Utility Coordinator notifies each Owner involved in the verification process of the finding. 11-4.11 . Positive Location of Underground Facilities To accurately .determine the type and location of all potentially impacted utility facilities, it is frequently in RCTC's and Owner's mutual interest to provide positive location of underground facilities. The process of obtaining this . information may require . that an excavation be made to expose the facility and allowthe precise location to be surveyed to RCTC's datum. The; excavation ito expose the facility is frequently referred to as "potholing. The Project Engineer is responsible to determine when positive, location . is required, usually whenever facilities are known to exist within the project construction area but cannot be precisely located, particularly' as to depth'. Without precise location information, physical conflictswithin:_ the project: cannot:; be determined nor safe construction assured. The Utility Coordinator shall provide reasonable notice to the Owner to accomplish positive location of underground utility facilities and is responsible for determining liability for costs in accordance with usual liability requirements. The Utility Coordinator shall provide the required encroachment instrument, with the Notice or assist Owner in obtaining it. 11-4.12 Positive Location Requirements for High Risk Facilities All underground high -risk facilities lying within the construction: area :of a transportation ,project shall be positively located. The Project Engineer makes a written request to the Utility Coordinator to obtain positive location information for all utility owned high risk facilities that may be in physical conflict with planned construction or that may be exposed to risk of damage during construction. The request must identify the 'location where the high -risk facilities are to be positively located and include three sets of base maps for each utility involvement (two' sets for the Owner and. one set for the Utility Coordinator's files). 11-4.13 Liability for Ordered` Positive Locations _28- 297 Liability is determined using the same rules that are applied to normal relocation. The liability is based on the occupancy rights possessed by RCTC and Owner as to each positive location site. 11-4.14 Utility Conflicts 'Identified The Project Engineer is responsible to review all existing utility locations for conflicts, determine which facilities need to be relocated, and make a written request to the Utility Coordinator to obtain affected Owner's relocation plans. The Project Engineer will provide the Utility Coordinator with :conflict maps for the Owner to use to prepare relocation plans. The Utility Coordinator sends conflict maps to the Owner and requests relocation plans, their claim of liability, and estimate of cost. Some conflicts may not be immediately evident on the. plans, such as stage construction requirements, detours, pile -driving operations, signal and lighting facilities, longitudinal encroachments, and encasement exception requirements. The Utility Coordinator shall review all plans with the Project Engineer for possible conflicts with all facilities within the project. If after reviewing all utility information, including positive location data, it is determined there are no conflicts with RCTC's proposed transportation project, the Utility Coordinator must notify the Owner of such. f a Local Public. Agency (LPA) Cooperative Agreement with cost sharing is involved, the Utility Coordinator must ensure the LPA is billed for their share o' the estimated total relocation costs for all Owners. 11-4.15 Conflict Maps Utility conflict maps are essentially RCTC's preliminary layout sheet for the project schedule and estimate. They should show any construction feature that may affect the Owner's facilities including, but not limited to, the following: a. Utility location b. Right of Way lines c. Cross Sections d. Profile e. Drainage f. Stage Construction -29- 298 g. Bridge Structure 1.1-4.16 Request for Relocation Plans, Claim of Liability, and Estimate of Cost Prior to issuing the Notice to Owner and Utility Agreement, the Utility Coordinator must :obtain the Owner's claim of liability, estimate of cost, and relocation plan. An exception can be made for expedited positive location. 11-4.17 'Receipt of Relocation Plans, Claim of Liability, and Estimate ofCost Upon, receiving ; the Owner's relocation plans, the Utility Coordinator routes the plans to the. Project Engineer for review and approval and comparison with other. Owner's plans for compatibility. The RCTC Utility Coordinator and Environmental consultant should review the Utility Relocation Plans whenever there is a possible relocation of 50KV and higher power lines and/or electrical substations, to ensure inclusion in and/or changes to the Department's environmental document. The :Utilities Coordinator has basic responsibility for reviewing all relocation: plans to determine that they provide a cost effective functional restoration of the utility facility. Betterments should be identified and all elements of the planned relocation must be necessary and appropriate. Where any portion of the utility work claimed by the Owner is to be at RCTC expense, the Utility Coordinator must review the Owner's claim letter that sets forth the basis for RCTC's liability and the estimated cost of relocation. 11-418 Special Provisions All utility facilities to be relocated, abandoned, or protected in place during construction, whether done by RCTC's contractor or Owner, are to be addressed in the construction contract's "Special Provisions:"- The Utility Coordinator is responsible to provide the Project Engineer with the information necessary to prepare these clauses for inclusion in the "Special Provisions." failure to do so may result in claims. by RCTC's contractor for right of way delays. -30- 299 CHAPTER XI ACQUISITION Section 11-5 Acquisition 11-5.1 Utility Acquisition Public utility facilities impacted by transportation project construction normally have a functional replacement constructed and are seldom acquired. Exceptions are where the facilities are for administrative or other non -utility service uses. The distinction between a public utility service uses versus a non -utility use may be based on whether severance of the particular improvement directly affects utility service to one or more customers. An improvement that is determined to -31 - 300 be a non -utility, e.g., corporate office, is appraised and acquired in the usual fashion. The distinction between public utility service and similar facilities that may only'':' provide service to the Owner is frequently confusing. These improvements are appraised and acquired in the usual manner. An exception to the purchased acquisition of private facilities is permissible for major oil companies where the Owner has agreed to application of standard rules on the functional replacement of facilities. Uniform Acquisition Act Requirements When the,, RCTC acquires replacement right of way, the requirements of the . Uniform Relocation Assistance and Real Property Acquisition Policies Act of, 1970 ;(Uniform ;Act) and the Surface Transportation and Uniform Relocation Assistance Act of 1987 and its amendments to the' Uniform Act apply. When a privately owned utility acquires their own replacement right :of way, the: requirements of the Uniform Act do not apply. 11-5.3 Acquisition from the Utility Owner Properties that lie in the path of transportation projects and are held in fee by the Utility:_Owners must be purchased outright or exchanged. . Generally, most fee -owned property is for substations or pumping plants, although some Owners have fee -owned corridors for transmission purposes: (See the table entitle Acquisition from the Utility Owner on the following page).. Type Fee -owned ACQUISITION FROM THE UTILITY OWNER Requirement All fee -owned property is acquired by ROW Contract and Deed. Terms of the. ROW Contract depend on whether the property in question is vacant or. improved, and whether it is a site or a corridor. In all' cases, :the Utility Coordinator should consult with Acquisition to reach a full understanding about what the property is and how it may be used, now and 'in the future. Things to -.look for include: 1. Vacant Site — The Owner may holding the site for future use in conjunction with an existing facility, such as for a substation expansion. 2. Vacant Corridor — Although treatment is similar to a vacant site, ;the -32- 301 possibility of easement acquisition on the Owner's behalf or JUA/CCUA should be explored. 3. Utility Facility Improved Site — Replacement of the site is usually necessary. If done, Acquisition may handle via ROW Contract. Relocation or rearrangement of utility facilities shall be handled by Utility Agreement in coordination with Acquisition. 4. Utility Facility Improved Corridor — Same as for an improved site; however, the possibility of replacing fee with easement or JUA/CCUA should be explored. Access to the replacement corridor must be considered. 5. Non -Utility Occupied — Acquire via normal appraisal/acquisition procedures. Easement 1. Utility Occupied — Occupied easements are usually for transmission Owned or distribution of the Owner's product. Where a replacement right of way is needed, the RCTC or Owner may acquire an easement. Usually the Owner's existing easement interest is quitclaimed to the RCTC in exchange for the new location by executing a JUA/CCUA as a part of the utility relocation. 2. Non -utility Occupied — Acquisition is responsible for clearance of vacant easements. Franchise/Permit Except as noted the RCTC is not obligated to provide a replacement right of i is 9_ _way for utility facilities installed under a fr p _ anch_ ise or permit. In some cases the RCTC ay -need to make the method of installation for safety or other good reason a requirement for occupancy under a Right of Way Permit. For instance, the most common requirements is that the facility cannot continue to be installed within the right of way as an aerial facility. 1f the Owner does not meet our requirements for relocation within the new right of way, the Owner is responsible to provide any needed easement at their own expense. 11-5.4 Consent to Condemnation for Exchange Purposes From the Owner Condemnation may be necessary if RCTC is .unable to acquire the replacement right of way through normal negotiations. A "Consent of Owner to Condemnation for Exchange Purposes" must be obtained from the Owner pursuant to Code of Civil Procedure Section 1240.320 to support a "Resolution of Necessity": from the California Transportation Commission. Individual consent forms need not be secured on each condemnation for the Owners that have a basic form on consent on file with RCTC. For Owners that do not have a consent form on file, the Utility Coordinator shall prepare a consent form based on the accepted filed forms and forward- it to the Owner for execution on an individual parcel basis. -33- 302 CHAPTER XI LIABILITY Section 11-6 Determination 11-6.1 Process Liability deterrnination is the process of analyzing the occupancy rights of the owner of utility facilities versus RCTC's rights. =Who has ..the prior or superior right in the area of the impacted facility is the 'basis for the determining responsibility for payment of relocation costs. The burden of establishing prior rights rests with -the Owner. The Utility Coordinator is responsible for accumulating the data, providing - 34 303 a complete and accurate report, and for confirming and approving the liability. Until an approved liability is made, the Utility Coordinator is not to provide any determination to the Owner. The Owner is responsible to prepare, document, and submit a claim for their declared right of occupancy. If the Utility Coordinator investigation confirms the Owner has rights prior and superior to those of RCTC, the Owner is paid for all or a portion of the relocation work. Refer to Table 1 on the following page. 11-6.2 Determining Superior Rights The Owner is responsible to prepare, document, and submit a claim for their declared right of occupancy. If the 'Utility Coordinator's investigation confirms the Owner has rights prior and superior to those of RCTC, and RCTC concurs, the Owner is paid for all or a portion of the relocation work. Liability determination is based on who has the superior occupancy rights. The factors in the table entitled Liability Determination Factors on the following page must be taken into consideration. 11-6.3 Liability Calculation Liability for the relocation cost is determined on the basis of who has the subservient right in the area of the existing facility that is impacted. 1f all of the impacted _facility is within an area of. a single . type of occupancy right, the determination of who is ` liable for the cost, outside of the Master Agreement situation, is simply that of the subservient position being responsible. If the facility area of occupancy consists of more than one type of occupancy right, . e.g., part within a utility easement and part under a permit, then a proration between Owner and RCTC of the total cost must be calculated using one of the three _ methods shown in the table entitled Methods of . Calculating Proration of . Cost. It is important to remember that only the impacted portion of the existing utility facility that lies within the RCTC-owned or controlled project limits is counted or measured, as applicable, for use in the proration formula. The total to be prorated, however, includes the cost of relocated facilities both within and outside the right of way. This total cost must not include any betterment or other nonreimbursable items of cost. -35- 304 Liability Determination Analysis What is the right of occupancy of the utility' facility? Property rights are the primary factors in determining who has the superior right of occupancy and will be based on one of the following: 1-) Fee Ownership 2) Recorded or Unrecorded Easement 3) Implied Easement /Secondary Easement 4) Joint Use Agreement / Consent to Common Use. -36- 305 Agreement 5) Prescriptive Right 6) Lease 7) License 8) Franchise 9) Encroachment Permit 10) Trespass Typically, the first 5 items establish prior rights, and RCTC may be liable for relocation costs, unless the documents involved contain clauses that reserved to the original grantor the right to order one or more relocations at the grantee's expense. Occupancy under Items 6 through 10 usually requires that relocations be at the grantee's expense. For further clarification of term and policy, please refer to Table on the following page. METHODS OF CALCULATING PRORATION OF COST Method Usage . Explanation Pole Count Pole count is normal method used for aerial facilities. The calculation is based exclusively .on the number impacted poles located within the project limits where the Owner has the superior right, divided by the total number of impacted poles within the project limits. This calculation produces the RCTC's share of the total relocation cost. Equal weight is normally given to each impacted pole within the project limits -37- 306 regardless of ancillary equipment or attachments such as guys, transformers, and switches. The impacted poles must be otherwise similar, as wood pole relocation costs are greatly different than special designed steel poles or other supporting structures. If impacted poles are of a mixed type, separate costing may be necessary for the dissimilar poles. See "Dollar Weighted method below. Facility Length ` Measurement of the length of the impacted facilities is normally used for underground facilities, such as gas, sewer, and water, or .for cables either directly buried or within -conduits and the facilities on the surface, such as ditches or conduits. This method is used where mixed facilities are to be prorated. 1.1-6.4 Property Rights The Owner may submit one or more superior right claims for the facility. Each prior right claim the Owner submits must be fully documented and supported. The types of property rights in the following table are applicable to transportation projects. 11-6.5 Fee Ownership A property under which the owner is entitled to unrestricted powers to dispose, of the property. The calculation to prorate liability is. similar to the pole count method above and is based on the Owner's superior right length of the impacted facility lying within the project limits divided by the total impacted length within theproject limits. The measured lengths must be of the same or similar size and type of facility, irrespective of ancillary equipment or features such as valves; manholes, switches, and transformers. This approach requires considerably more effort ` and documentation as it is necessary to establish and support an installed replacement cost new for the existing facilities. The simple cost of the materials is not sufficient to establish this proration. Thecalculationis .based on the installed replacement cost new of the existing facilities located within the project limits where the Owner has the superior right, divided by,;the total of the installed replacement cost new for all of the impacted existing facilities within the project limits. This calculation produces the_ ' RCTC's share' of the total relocation cost. -38- 307 RCTC is liable for relocation costs any time the facility is on property where the Utility Owner has fee title. The Utility Coordinator shall review title reports and right of way maps to verify Ownership. 11-6.6 Easement A right created by grant, reservation, agreement, prescription, . or necessary implication, which one has in the land of another. It is either for the benefit of land - (appurtenant), such as right to cross from point A to point B, or "in gross", such as a public utility easement. In most cases when the facility is located within an easement, recorded or unrecorded, RCTC is :liable for relocation costs. When the Utility Owner claims superior right pursuant to a prior easement, the Utility Coordinator must verify the location of the easement and that the easement is valid and that the Utility^Owner's rights are prior and superior to RCTC's. 11-6.7 Implied Secondary Easement All public and privately owned facilities located in city and county streets and roads that were installed within the city and county jurisdictional limits prior to their becoming an RCTC owned or operated thoroughfare are considered to have been installed in the Owners implied easement reservation. All facilities so located are . relocated at RCTC expense, following verification of supporting data, permits, "as built" drawings, and Owner's records. 11-6.8 Joint Use and Consent to Common Use Agreements A general term usually describing a common view of two or more; people or entities regarding the rights and obligations of each with regard to a given subject or it's . specific use. In most cases, RCTC will bear relocation costs for facilities installed within a JUA or CCUA area. The ROW Staff must determine that the JUA/CCUA existing facility is, in fact, in the area of the JUA/CCUA by comparing the facility location with the JUA/CCUA description. The document must also be reviewed for any conditions that may change or limit the facility Owner's rights such as: a. A JUA/CCUA based on prescriptive rights where the existing facility is different than the facility covered in the JUA/CCUA, e.g., rights for an underground 4-inch gas line but the facility to be relocated is a 16-inch gas line. b. A JUA/CCUA has an expiration date for the Owner's rights. A facility Owner has the right to expand their facilities to the extent allowed by the terms and conditions of the easement deed. This right extends to a JUA and CCUA granted in recognition of existing easement deeds but does not extend to -39- 308 prescriptive right claims. Regardless of Owner's prior rights, any expansion of Owner's facilities within the RCTC right of way must be in accordance with encroachment permit requirements. 11-6.9 Prescriptive Rights A land right granted or taken based on the presumption that a written right was given (although none existed), after a period of open and continuous use of land. . Relocation costs for facilities installed under a right of occupancy established' by a prescriptive right may become RCTC's liability if the occupancy condition meets statutory requirements: The occupancy right must have been established by the open and notorious adverse use of another's property. Facilities must have been installed on private property with the knowledge ofthe :property owner and without a, right of way, permit, lease, or other license, and continuously maintained in the same location for the prescriptive period of at least -five years. if underground facilities are involved, the original installation and continuous maintenance of the facility in the prescriptive location must be with the property owner's knowledge. Prescriptive rights cannot be established on publicly owned property. 1.1-6.1 O Lease An agreement by which an owner of real property (lessor) gives the right: of possession to another (lessee), for a specified period of time (term) and for a ;specified- consideration (rent). The terms for relocation are ,:explicitly. ,identified - in the Lease Agreement. 11-6.11 License Permission; either expressed or implied. The terms . for relocation ,are explicitly identified in the License Agreement. 11-6.12 Franchise A 'combination of individual ownership and central control. An authorization granted by a public entity and all the rights and privileges thereof, for a specified -period of time (term), for a specified consideration (payment), and with defined obligations of the grantee to relocate (i.e. utilities) at its own cost and expense. The terms for relocation are explicitly identified in the Franchise Agreement. 11-6.13 Encroachment Permit Permission to construct onto the property of another (i.e., placement of utilities), term is typically determined by the property Owner and, provisions related to relocation are explicitly defined. 11-6.14: Joint -Pole Agreement -40- 309 The California PUC has authorized the joint sharing of poles by different utility facilities as a means of providing more cost-effective service and to reduce "utility pole blight." The agreement to share generally conveys rights to the joint pole user that are equivalent to those the original owner of the pole enjoyed. The pole Owner's rights must be reviewed, therefore, to determine joint -use Owner's rights. On joint pole facilities, when multiple Owners are found to be sharing the pole, whether or not such use is covered by the California Joint Pole Association, each -owner must submit their claim of liability for the property occupied. The facility that shares the pole with the pole Owner may have a valid property right claim even though they occupy the pole under a lease, license, or permit with the pole Owner. 11-6.15 Utility Agreement In a utility agreement, RCTC agrees to comply with all Federal and State Laws, .regulations policies and procedures relative to the design, right of way, acquisition, construction and maintenance of .the relocation of facilities necessitated by the transportation project. It is normally processed once for every relocation of facilities affected. 11-6.16 Abandonment or Removal Costs Cost for .removal or abandonment of existing .utility facilities .are . reimbursable `provided the removalor abandonment is prescribed by the transportation project, required for aesthetic or safety reasons, or contains hazardous: material that cannot safely remain. In most cases it may be feasible to abandon the - existing utility facilities in place if the existing facilities will not conflict with the proposed transportation project. Underground facilities containing, hazardous material, e.g., asbestosand lead, should remain where possible. If required to be removed, RCTC will reimburse Owner for normal pro rata costs for removal effort only. In cases where there is no need to remove the existing utility facilities but the Owner elects to proceed with the removal, RCTC shall not pay any removal costs above the salvage value of recovered materials credited to the: project. 11-6.17 Disruption of Service facilities Service facilities that are located on the property being served are usually there by permission of the property owner as a requirement for receiving utility service. RCTC in acquiring the property being served may, as the new property owner, revoke. the owner's permission for occupancy and thus require the service facilities to be removed or abandoned. 11-6.18 Relocation for Non -Transportation Project Use -41 - 310 California case law supports the premise that a utility facility under a franchise must be relocated at'the Owner's .expense when required by any proper governmental purpose. Required relocations for construction: ofmaintenance. stations, drainage, inspection facilities, functional replacement acquisition sites:, etc., are covered under "proper governmental purpose." 11-6.19 Liability Undetermined Liability must be determined prior to issuance of. a Notice ,to Owner. This cannot always be accomplished, however, as sometimes the Owner is: unable to provide timely documentation that will allow RCTC to: verify the inforn iation necessary: to determine liability in a reasonable time. In these castes and When time is of .the essence, a 'Notice can be issued without liability being determined to ensure project delivery. The Owner must agree to accept the Notice with liability undetermined and perform the; relocation. Preferably this agreement should be in writing. If the Owner does not -provide a firm (enforceable) commitment, the certification and project could beinjeopardy. 11-6.20 Liability in Dispute Unlike right of way acquisition, there is no administrative settlement process -to resolve disputes in utility relocations. The reason for this is that utility liability issues :are largely .based on a factual determination _of what is *required to produce a functional replacement for the impacted utility facility and who has the superior position of a prior right. This is not to say that differences in the determination of the facts or their interpretation do not exist. The preferred method of resolution obviously is to mutually agree on how to'. handle a'particular situation and what the resultant liability should be.. Litigation is normally used where a large cost is involved or a significant legal premise is at stake. The decision to proceed to litigation depends heavily, :on Legal Counsel's input as well as Right of Way functional needs. 11-6.21 Agreement to Disagree The resolution of the dispute may be too time consuming to be accomplished and still met project dates. The Utility Coordinator should attempt an "agree -to - disagree" understanding with Owner. With the Owner's concurrence, the Notice may be issued using "liability in dispute as the liability state , in the Notice:' . If the :Owner doesnot concur with . the .issuance of a Notice on this basis, a special .agreement is required .for the advancement of funds, to cover the funds to a separate_ interest -bearing account. - 42 - 311 Section 11-7 Aid CHAPTER XI ASSISTANCE - 43 - 312 Federal/State and Local 11-7.1 FHWA The :Federal Highway Administration ("FHWA") is the :Federal agency most typically involved in transportation projects undertaken with Federal funding, It has the authority and responsibility for implementing and monitoring Federal laws,. regulations and executive orders affecting these programs When the project utilizes Federal funding, the FHWA is involved pursuant to: -these . responsibilities. For all Federal -aid projects FHWA is responsible .for the following project activities: Obligation of Federal funds b. Approval of the National Environmental Protection Act (NEPA), and other federally required environmental documents except for projects that qualify for the Programmatic Categorical Exclusion Approval of E-76s for Right of Way activities and utilities under the Alternate Procedure Execution of Project Agreements :Acceptance of Right of Way Certification for projects where the cost exceeds $1 million The intent of the Chapter is to provide the basic understanding of Right of VVay procedures for locally -sponsored Federal -aid transportation projects. State and Local agencies which will be actively involved in right of way acquisition and. relocationmust comply with the Uniform Relocation Assistance and !Real Property Acquisition Policy Act of 1970 as amended in 1987 (the Uniform Act). This law can be found in the RCTC Right of Way Manual, the' FHWA Project Development Guide and at Section 49 of the Code of Federal Regulations (CFR) Part 24. ln addition, state and local agencies must also comply with all requirements of Title VI of the 1964 Civil Rights Act on Federal -aid projects. This is to ensure . that all services and/or benefits derived from any right of way: activity will be administered without regard to race, color, gender, or national origin (see FHWA Project Development Guide, Appendix C-12 and 23 CFI Part 710.401, Subpart D). 11-7.2 CALTRANS Role When Federal .funding is used in a local: assistance project,. the FHWA: places responsibility for the acquisition of right of way and the relocation of individuals, -44- 313 businesses, and utilities with Caltrans. Caltrans, in turn, has delegated substantial authority to local agencies. On these Federal -aid projects, all right of way activities must be conducted in accordance with the Caltrans Right of Manual, unless the local agency has adopted its own procedures that comply with federal and state regulations.. When the highway project requires the relocation of utility facilities, Caltrans is responsible for approval of the "FHWA Specific Authorization to Relocate Utilities" and "FHWA Approval of Utility Agreement." Caltrans is responsible for fully informing local agencies of their responsibilities accompanying Federal -aid transportation projects by ensuring that every local agency receives all current regulations and procedural instructions affecting right of way: activity and, on request, will provide guidance and advice on right of way matters. As part of the overall responsibility to Caltrans by FHWA, Caltrans Right of Way is required to monitor local agency right of way appraisal, acquisition, relocation activities, and utilities relocation on all local assistance projects for compliance with applicable laws and regulations. 11-7.3 Master Agreement A master agreement is required with a state or .local agency whenever Federal funds are to be used on a local transportationproject. P: _ ;: In the master agreement, the state or local agency agrees to comply with all Federal and State laws, regulations, policies and procedures relative to .the design, right of way acquisition, construction and maintenance of the cornpleted facility. It is normally processed once with the agency when it beginsits first Federal -aid funded project. CONSENT TO CONDEMNATION - UTILITY COMPANY -45- 314 (SAMPLE) CONSENT TO CONDEMNATION FOR EXCHANGE PURPOSES PURSUANT TO SECTION 1240.320 CODE OF CIVIL PROCEDURE Pursuant to the provisions of Section 1240.320 of the Code of Civil Procedure, , a public utility corporation ,authorized to exercise the power of eminent domain, consents to the condemnation by the RCTC , of easements, rights of way, or other real property to be exchanged for interest in real property owned y P utility P b and devoted to a public utilit purpose to be taken for .' purposes; upon the condition that the Riverside County` Transportation Commission receive the written approval of- the form of complaint in eminent domain to be used by the Riverside County Transportation, Commission and of the location of the easement, rights of way or other real property prior to condemnation. Condemnation of such easements, rights of way, or other real property shall be in the :name: of pursuant to authorizing resolutions of the ; and the easements, rights of way, or other real property condemned shall be conveyed to in exchange for the interest in real property to be taken for purposes. [Name of the Company] By Title LETTER TO OWNER - 46 - 315 (SAMPLE) (DATE) (Utility Owner) (Street Address) (City), (State) (Zip Code) RE: (Utility Number) (Utility Location) Enclosed are two sets of the Riverside County Transportation Commission's ("ROTC") preliminary plans covering the proposed (highway, street, road) construction project on (Route number). Proposed construction will include (DESCRIBE THE PROJECT) Your (Company's) (City's) (County's) (Commission's) facilities are within the project and may be affected by planned construction. These plans are for your use in (1) verifying your existing facilities as shown on the plans, (2) completing your relocation plans, (3) identifying related easement requirements, (4) developing your claim of liability and (5) preparing your estimate of cost for the project. This is a (type of project, i.e. street) and all rights of access will be restricted. If the RCTC is liable for any portion of your relocation costs, and if any of your plans will be,prepared by a consulting engineer, a copy of the proposed agreement with your consultant must- be furnished to this office as soon as possible. Employment of a consultant for a fee based on a percentage of the relocation cost is not acceptable. If desired, an example of a typical consultant agreement, along with the Certification of Consultant, will be furnished upon request: If easements are required to relocate your facilities, please delineate your needs on the plans: This information is needed as soon as possible so your replacement easements can be acquired by the RCTC along with other lands required for this project. You may submit your easement requirements ahead of your overall relocation plans. Please submit the following information for review prior to Owner, Permit and if necessary a Utility Agreement can be prepared: so a Notice to 1. Six sets of your relocation plans with related easement requirements, and any changes to the existing facilities as shown on the RCTC's preliminary plans. 2. The appropriate number of working days you need to complete your relocation work as per your plans, including any construction windows you may need. 3. The date your existing facilities were installed. 4. Your occupancy rights for installation: a. Fee -owned land b. Easement (recorded) -47- 316 c. Easement (unrecorded) d. Prescriptive right e. JUA or CCUA f. Franchise g. RCTC Permit h. County Permit i. City Permit j. Joint Pole Agreement k. Other (explain) Please provide a copy of your documentation to support your occupancy rights, claim for:A,B,C,D, or E above An itemized estimate of cost which includes a breakout for labor, material, transportation; equipment and administrative overhead. If you will be requesting a lump -sum Utility Agreement, provide an itemized estimate which includes a detailed breakdown of the above -mentioned items. Your work will be performed by: Own forces b. Continuing contractor c. Competitive bid contract Your liability claim: RCTC % Owner This project is currently scheduled for construction If technicaldesign information is needed, you may call our Project Engineer, , telephone ( ) . Should you have any questions, please call me at ( ) . Your cooperation is appreciated:: Sincerely, (Name), Utility Coordinator ROW Utilities Cc: , (Dept) (Attach) (Encl) VERIFICATION LETTER TO OWNER (BRIDGES) - 48 - 317 (SAMPLE) ('DATE) (Utility Owner) (Street Address) (City), (State) (Zip Code). RE: (Utility Number) (Utility Location) The Riverside County Transportation Commission ("RCTC") is developing plans for (constructing a) (improving the existing) (highway, street, road) on (Route Number). Proposed construction will include (DESCRIBE THE PROJECT) Our Project Development staff needs information regarding your existing utility facilities.. The facilities will be considered in design, and will be brought to the attention of our contractor through inclusion in the construction contract plans. (Attached) (Enclosed) are two sets of the RCTC's geometric base maps showing the limits of the project. Please verify your existing facilities, deleting any that have been removed or abandoned and delineating any not shown. Please list what is carried by the facility (gas, electric, water, telephone, cable, pipeline, etc.) and give ties, depth of cover, size, voltage, pressure, and d any otherinformationthat might affect the.design:of the (project), _Return a ;set of base maps to me prior to . A print of your construction plans, if :available for ' the area, will be satisfactory in lieu of plotting facilities on our base maps. Ifnecessary, at a later date plans will be sent o you for preparing your relocation plans. This is a (type of project, i.e. street) and all rights of access will be restricted. If the RCTC is liable for any portion of your relocation costs, and if any of your plans will be prepared by a consulting engineer, a copy of the proposed agreement with your consultant must be furnished to this office as soon as possible. Employment of a consultant for a fee based on a percentage of the relocation cost is not acceptable. If desired, an example of a typical consultant agreement, along with the Certification of Consultant, will be furnished upon request. If easements are required to relocate your facilities, please delineate your needs on the plans. This information is needed as soon as possible so your replacement easements can be acquired by the RCTC along with other lands required for this project. You may submit your easement requirements ahead of your overall relocation plans. The following guidelines limit utility placement in or on bridges. These guidelines apply to normal installations whereby utilities are installed in a box girder cell, suspended between girders (I or T-girder structure types), or in sidewalk slab. 1. The maximum allowable utility size depends on structural constraints of the bridge. Any utility or its casing with a diameter exceeding 20 inches may not be acceptable. Utilities of this size must be analyzed by Engineering on a case by case basis. 2. The maximum diameter conduit allowed in sidewalks is 4". - 49 - 318 3. The maximum voltage allowed in an electrical line is 69kv. 4: The maximum operating water pressure of a 20 inch diameter line is.100 PSI. . 5. , The maximum volatile gas carrier line allowed is 16 inches. 6. Volatile fluids, gases and high voltage lines shall not occupy the same cell or area between girders with any other utilities or with each other. Please keep in mind that the following options are available when designing your facilities for expected seismic movement through the structure: 1. For existingstructures, design for an expected minimum horizontal or vertical displacement, of 2 inches. For new structures, design the facilities for an expected movement of 24 inches. 2. Provide an event -actuated device that will automatically shut off the utility line. 3. ; Provide a device that will detect a break in the utility line (and casing).and automatically shut off the utility line. 4. Locate the utility line off the bridge. This project is currently scheduled for construction on If you have any questions, please call me at ( ) . Your cooperation is appreciated..__ Sincerely, (name). Utility Coordinator ROW 'Utilities Cc: , (Dept..,) (attach) (encl) "NO CONFLICTS" LETTER .TO OWNER -50- 319 (SAMPLE) (DATE) (Utility Owner) (Street Address) (City), (State) (Zip Code) RE: (Utility Number) (Utility Location) The Riverside County Transportation Commission ("RCTC") has completed the development of plans for (construction a) (improving the existing) (highway, street, road) on The RCTC's planned construction will include (DESCRIBE THE PROJECT) Our project development staff has determined there are no identified conflicts at this time between your facilities and the RCTC's proposed construction project. Unless this changes, you will not be contacted again regarding this project. The project is currently scheduled for construction on If you would iike_to go over our plans ordiscussthe project with our Project Engineer, please contact the undersigned at, telephone ( ) . Your cooperation is appreciated. Sincerely, (Name) Utility Coordinator ROW Utilities Cc: , (Dept.) -51- 320 LIABILITY IN DISPUTE UTILITY AGREEMENT (SAMPLE) UTILITY AGREEMENT NO. Whereas, the Riverside County Transportation Commission, hereinafter called RCTC, has issued Notice to Owner No. dated , attached hereto, to (NAME OF UTILITY OWNER), hereinafter called Owner, which Notice to :Owner sets forth the terms and conditions pursuant to which Owner has been ordered to relocate . certain Owner's facilities to clear RCTC's proposed transportation project on in (City) from mile (north, south, east, west) of to and; Whereas,: the reconstruction of RCTC's transportation project necessitates the::: relocation of Owner's Utility facilities, and; Whereas, ROTC, in order to clear the right of way for the project construction, has ordered Owner to relocate the portions of its facilities within said Notice to Owner,. hereafter called Owner's facilities, and; Whereas; Owner claims it'has rights that are prior and superior to those of'RCTC :: and =refuses to relocate Owner's facilities as ordered and claims that RCTC must pay the relocation costs for those facilities covered by the prior right hereafter "prior right" facilities, said right described in attached Notice to Owner, and; Whereas,. RCTC and Owner disagree on the issue of which is liable for the portion of the required relocation work known as the prior right facilities, RCTC and 'Owner agree that, in order to expedite the proposed project, RCTC shall deposit with Owner, 100% of the estimated relocation cost of $ , and ;Owner agrees to do the relocation work as set forth in Notice to Owner No. , dated NOW THEREFORE, it-is,agreed between RCTC and Owner. as follows: 1. Within 30 days of RCTC's execution of this Agreement, RCTC shall advance Owner 100% of the estimated cost of relocation, which advance shall be $ 2. Owner shall relocate Owner's facilities in accordance with Notice to: Owner No. , dated . 3. Owner shall place the advance in.a separate interest -bearing account pending final resolution of liability, and shall pay a RCTC all accrued interest, if Owner is ultimately found liable for relocation costs. -52- 321 4. In signing this Agreement, neither RCTC nor Owner diminishes its position, waives any of its rights or accepts liability. 5. RCTC and Owner reserve the right to have such liability resolved by future negotiations or by any action in a court of competent jurisdiction. 6. Owner agrees to perform the 'herein -described work with its own forces or by the Owner's contractor and to provide and furnish all necessary labor, materials, tools and equipment required therefore, and to prosecute said work diligently to completion. 7. It is understood and agreed that RCTC will not pay for any betterment or increase in capacity to Owner's facilities in the new location and that Owner shall give credit to RCTC for all accrued depreciation on the replaced facilities and for the salvage value of any material or parts salvaged and retained or sold by: Owner. 8. Owner shall submit a Notice of Completion to the State within 30 days of the completion of the work described herein. THE ESTIMATED COST FOR THE ABOVE MENTIONED WORK IS $ IN WITNESS WHEREOF, the parties hereto have executed this Utilities Agreement this day of , 2002. RIVERSIDE COUNTY TRANSPORTATION COMMISSION (OWNER) By _ By Director of Transportation, Date Name/Title Date Systems Development APPROVAL RECOMMENDED: By Department Manager, Date Construction Services By Utility Coordinator, Date - 53 - 322 Right of Way PRESCRIPTION 'FORM' (SAMPLE) STATE of CALIFORNIA DATE: SECTION: LOCATION: COUNTY: _ KEY NO. (name) (title) (company) being first sworn on oath, depose and say the attached list of utility, facilities must be relocated 'or adjusted for the above mentioned project. These facilities are located on private property and a search of the records of does not (Name or source of records) disclose any recorded or unrecorded easement for said facilities. further depose and say that said facilities are in existence and are located on private property outside of public right-of-way. The said facilities were installed on said private property on The facilities were installed and have been continuously : operated and maintained on the said private property openly and adversely to the rights of the fee owner. The facilities were installed and have subsequently been operated and maintained as more fully explained in Exhibit "A", attached: hereto and by. reference made a part hereto. (See attached explanation of information needed.) having .continuously operated and maintained said; facilities on (company) said private property :openly and adversely to the rights of the fee owner for more than years, claims -an easement by prescription for the continued operation and maintenance of said facilities as they are now located. Utility Representative Signature Position with Utility Sworn to and subscribed before me this _day of 2( -54- 323 Notary's Signature Notary Public for the State of California My commission expires: -55- 324 UTILITY: DATE: SECTION: LOCATION': COUNTY: Exhibit "A" Type of facility covered by exhibit: Provide facts and circumstances surrounding the initial installation. Include size,. type and .quantity of facilities. Use additional paper if .needed. Why was no written easement acquired or required at the time of installation? How long have the facilities been there? Does property owner know of the facility's existence and location? Did original property owner see the installation? Do facilities show above ground and are they readily observable on land? Provide any other facts you may have pertaining to the installation and maintenance of the facilities.., . -56= 325 TIMING AND STATUS REPORT FORM (SAMPLE) DATE To: Utility Coordinator From: Subject: Utility Timing & Status Report Key No: Project: Project No: LOCATION: County: The following utility will be adjusting, relocating, or installing facilities during construction: UTILITY: Type of Conflicts: Location of utility: State , City , County ROW, or private easement Reimbursable Relocation Costs: $ Permit Required: Yes_❑, No ❑ , Section Coordination between Contractor and _ Contractor is to contact project representative to coordinate work and schedules. initial contact is , (phone ). Contractor is expected to include relocation schedule in the overall construction scheduler Contractor will coordinate and facilitate activities. UTILITY: Type of Conflicts: Location of utility: State I (, City Reimbursable Relocation Costs: $ Permit Required: Yes ❑, No ❑ Section , County ROW, or private easement Coordination between Contractor and : Contractor is to contact project representative to coordinate work and schedules. initial contact is , (phone ). Contractor is expected to include relocation schedule in the overall construction schedule. Contractor will coordinate and facilitate activities. -57- 326 The following utility(s) has/have facilities within the project limits but no conflicts are anticipated: I certify to the best of my knowledge that the above statements are correct in regard to utility . negotiations on this project. cc: , ROW (title) Construction PM , Project Program Manager -58- 327 APPROVAL OF REIMBURSEMENT WORK (SAMPLE) Utility Name: Type Facilities: Reimbursable(Est): Project Name: Key No. Approval of Reimbursement Work 1. Preliminary Engineering (PE) will be accomplished by: ❑ Company Forces if PE work is estimated < $5,000, PE work can proceed without further authorization} ❑ Engineering Consultant through: (agreement with consultant must be approved by ROTC prior to starting PE work. As a minimum: rate schedule and work scope required for <$10,000, detailed scope of work and estimate required >$10,000} ❑ Continuing Agreement ❑ New Engineering Contract Rough Estimate of PE Costs $ 2. Construction will be accomplished by: ❑ Company Forces (writtenapproval must be obtained before starting work) o Low 'Bid Contractor {written approval of must be obtained prior to advertisement of project. Approval - of selection of low bidder is required prior to award of contract} ❑ RCTC Contractor (must be requested in writing to RCTC. Utility to supply all Preliminary Schedule & Engineering documents) o Contractor with Continuing Agreement (agreement with contractor must be approved by RCTC prior to starting construction) Rough Estimate of Relocation & Admin. Costs $ By signing below I understand and acknowledge that: All reimbursable utility relocation work must have written RCTC authorization prior to starting work. Estimates and bills must conform with, federal, state and local law, administrative rules, regulations and RCTC relocation policy. All final billings will be submitted within 120 days following completion of the utility relocation work, or run the risk of not being paid unless other arrangements are made. Authorized Company Representative: Viand Phone Number) (Mailing AQaress) TCPY, 5tate, EP) Signature of Au . -59- 328 .Y • "'RUM . 1011ANO0 aaisii SW311 `SNMVIN3M sn1V►1s M/N Ala INOIAA iSla NOI1d1S 01 NOIld1S W311 awa S10I1ANO0 AO 1S11 )N A3)1 :.NOLLOBS Ali1iln (21dWdS) METROLINK RIGHT OF WAY ENCROACHMENT APPLICATION RIGHT OF ENTRY AGREEMENT 43 330 UTILITY RELOCATION AGREEMENT SAMPLE 44 331 QUITCLAIM DEED SAMPLE 45 332 POTHOLE AGREEMENT 46 333 UTILITY RELOCATION AGREEMENT SAMPLE 47 334