REPORT/RECOMMENDATION TO THE BOARD OF SUPERVISORS
OF SAN BERNARDINO COUNTY
AND RECORD OF ACTION
December 17, 2024
FROM
TERRY W. THOMPSON, Director, Real Estate Services Department
NOEL CASTILLO, Director, Department of Public Works - Transportation
SUBJECT
Title
Appraisal and Acquisition of Private Party Easements for the Rock Springs Road Bridge Over Mojave River Project in the Unincorporated Area of Apple Valley
End
RECOMMENDATION(S)
Recommendation
1. Approve Appraisal No. 24-17, a copy of which is on file with the Real Estate Services Department.
2. Authorize the acquisition of an easement totaling approximately 142,514 square feet for highway, roadway and bridge purposes, with a perpetual period for the easement commencing on the date all parties execute the Easement Agreement, and one temporary construction easement totaling approximately 132,117 square feet, with a period for the temporary construction easement commencing on July 1, 2025, and terminating on the earlier of project completion or June 30, 2028, for the Rock Springs Road Bridge Over Mojave River Project in the unincorporated area of Apple Valley, at a total cost not to exceed $261,496, which includes the just compensation and $2,500 administration fee.
3. Approve an Easement Agreement with BNSF Railway Company, a Delaware corporation, including non-standard terms, to acquire an easement totaling approximately 142,514 square feet for highway, roadway and bridge purposes, with a perpetual period for the easement commencing on the date all parties execute the Easement Agreement, and one temporary construction easement totaling approximately 132,117 square feet, with a period for the temporary construction easement commencing on July 1, 2025, and terminating on the earlier of project completion or June 30, 2028, for the Rock Springs Road Bridge Over Mojave River Project, over portions of Assessor’s Parcel Number 0438-165-25-0000 located in the unincorporated area of Apple Valley, for a total cost of $261,496.
4. Authorize the Director of the Real Estate Services Department to execute any other documents necessary to complete this transaction, subject to County Counsel review.
5. Direct the Director of the Real Estate Services Department to deliver the fully executed Agreement referenced in Recommendation No. 3 to the Clerk of the Board of Supervisors within 30 days of execution by BNSF Railway Company.
(Presenter: Terry W. Thompson, Director, 387-5000)
Body
COUNTY AND CHIEF EXECUTIVE OFFICER GOALS & OBJECTIVES
Ensure Development of a Well-Planned, Balanced, and Sustainable County.
Provide for the Safety, Health and Social Service Needs of County Residents.
FINANCIAL IMPACT
Approval of this item will not result in the use of additional Discretionary General Funding (Net County Cost). The acquisition from BNSF Railway Company, a Delaware corporation (BNSF) by San Bernardino County (County) for the Rock Springs Road Bridge Over Mojave River Project (Project) in the unincorporated area of Apple Valley, will be funded partially by the Federal Highway Bridge Program (HBP) funds, Local Fee Plan funds, and Discretionary General Funding allocated to the Department of Public Works - Transportation (DPW-T) in the 2014-15 and 2024-25 recommended budgets. The total cost to the County to acquire the property interests from BNSF is an amount of approximately $261,496, which includes the just compensation and $2,500 administration fee. Sufficient appropriation and revenue are included in the County’s 2024-25 Road Operations budget (6650002000 H15087).
BACKGROUND INFORMATION
The Project is a coordinated effort among the County, through DPW-T, the California Department of Transportation (Caltrans), and the Town of Apple Valley (Town), to widen Rock Springs Road by replacing the existing two-lane low water crossing on Rock Springs Road over the Mojave River with a two-lane bridge that includes four-foot shoulders, concrete barricaded sidewalk with streetlighting on the south side of the bridge, and drainage improvements.
This bridge is part of a major circulation link in the high desert between the Town and the City of Hesperia, with approximately 13,033 vehicles per day using the roadway. Additionally, many residents of the Town and the County’s unincorporated areas to the east of the Mojave River utilize this road for commuting to work in Riverside, San Bernardino, Orange, and Los Angeles counties. Stormwater runoff during large weather events overtops the existing three-section box culvert, making it necessary to close the road multiple times each year. Road closures can result in as much as a 13-mile detour for travel. The nearest alternative river crossing is approximately four miles to the north.
On November 19, 2024 (Item No. 67), the Board of Supervisors (Board) approved the appraisals and acquisition agreements for the acquisition of a total of eight Grants of Easement for highway and roadway purposes, eight Temporary Construction Easements (TCEs), and one Grant Deed for acquisition of one fee property required for the Project. As mentioned in the above item, this is the submission for Board approval of the BNSF Easement Agreement (Agreement).
The interest in the portions of land to be acquired by the County for the Project are described as follows:
|
Property Owner |
Acquisition Number |
Assessor’s Parcel Number |
Total Area to be Acquired |
|
BNSF |
Easement - 9 TCE - 9 |
0438-0165-25-0000 |
142,514 square feet 132,117 square feet |
The Real Estate Services Department (RESD) reviewed the Project with DPW-T and initiated the valuation of the BNSF property interests under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, Government Code section 7260 et seq., corresponding regulations, and County Policy No. 12-20, for the acquisition of property rights for a public project.
Appraisal No. 24-17, a copy of which is on file with RESD, was professionally prepared and approved by qualified RESD staff. The appraisal establishes the amounts of just compensation to be paid to the property owner for the property rights necessary to complete the Project. RESD recommends that the appraisal be approved and that the written offer be made to the impacted property owner.
The County is responsible for acquiring the right-of-way from properties located within the unincorporated Apple Valley areas and is responsible for acquiring the right-of-way from properties within the Town’s Project. The County will deliver all documents demonstrating possession of its portion of the property interests for the Project to Caltrans for right-of-way certification, per Federal Highway Administration guidelines, in order to receive an allocation of HBP funds for construction.
At the request of BNSF, the Agreement is being presented to the Board to sign first prior to BNSF execution as the County frequently collaborates with the railroads to acquire easements required for critical infrastructure projects. These projects often face delays due to the prolonged negotiations between the County and the railroads. By the Board signing first, it would expedite the approval process, thereby potentially prevent unnecessary delays, ensure timely project certification, and demonstrate the County’s commitment to efficient infrastructure development for the benefit of the community.
Approval of this item by the Board will approve the appraisal for the Project, authorize the County’s acquisition of the property rights for the Project at a total cost of approximately $261,496, which includes the just compensation and $2,500 administration fee, approve the Agreement for the County to acquire easement interests from BNSF, approve the form of easement agreement between the County and BNSF, and authorize the Director of RESD to execute them and deliver the Agreement to the Clerk of the Board of Supervisors once fully executed.
The Agreement with BNSF contains non-standard terms that differ from the standard County contract as follows:
1. The Agreement requires the County to waive its ability to use condemnation laws to acquire fee interest in the easement property in order to permanently keep the improvements in place.
• The county standard language does not include a waiver of condemnation rights.
• Potential Impact: By agreeing to waive the right of condemnation, the County would be required under the terms of the Agreement to relocate or remove the improvements from the easement area if, upon proper written notice, the improvements interfered with BNSF’s reasonable use of its rail corridor, and thus could not use condemnation laws to keep the improvements in place.
2. The Agreement requires the County and its subcontractors to waive any claims that BNSF is the owner or operator with respect to the Improvements for the purposes of environmental laws.
• The county standard contract language does not include a waiver of claims.
• Potential Impact: By agreeing to the waiver, County could not claim that BNSF is the owner or operator of the Easement Improvements for liability under environmental laws and would be required to indemnify BNSF for any such claims.
3. The Agreement requires the County to indemnify and defend BNSF for claims arising out of County’s performance of the Agreement, and also requires the County and its subcontractors to indemnify and defend BNSF against any claims that the County’s or its subcontractors’ employees are employees of BNSF under the Federal Employers’ Liability Act (FELA) or related federal acts.
• The county standard contract indemnification clause does not include the County indemnifying the contractor without approval from Risk Management and County Counsel, nor include an indemnity and defense of FELA, and here the County must indemnify BNSF for this specific purpose.
• Potential Impact: By agreeing to indemnify BNSF the County could be contractually waiving the protection of sovereign immunity. Claims that may otherwise be barred against the County, time limited, or expense limited could be brought against BNSF without such limitations and the County would be responsible to defend and reimburse BNSF for costs, expenses, and damages, which could exceed the total Agreement amount.
DPW - T recommends approval of the Agreement, including non-standard term, as failing to do so will cause the County to be unable to proceed with the Project and result on the potential loss of Project funding.
Following approval and execution of the Agreement by the County, it will be delivered to BNSF for its subsequent execution. The Director of RESD will also be authorized to execute any other documents necessary to complete this transaction, subject to County Counsel review. In addition, the Director of RESD will accept all property rights executed by BNSF, on behalf of the County pursuant to the authority granted by the Board on March 27, 2012 (Item No. 75).
Since this Project receives federal funding, Caltrans reviewed the Project for compliance under the National Environmental Policy Act. On March 19, 2015, Caltrans determined the Project is Categorically Excluded pursuant to Title 23 of the Code of Federal Regulations, Section 327.
As Lead Agency, under the California Environmental Quality Act (CEQA), for the Project, on June 2, 2015 (Item No. 67), the Board adopted a Mitigated Negative Declaration (MND) for the Project, finding that there will not be a significant effect on the environment after implementation of the mitigation measures identified in the MND and the mitigation monitoring reporting program. The Clerk of the Board was directed to file and post a Notice of Determination (NOD). Accordingly, no further action is required for the underlying project by the County under CEQA.
The MND reflects the independent judgment of the County as the Lead Agency. For the contemplated real property transactions, DPW-T has reviewed the MND as a Responsible Agency and determined that adequate mitigation has been provided to avoid direct and/or indirect environmental effects with respect to the property interests to be acquired for the Project.
PROCUREMENT
RESD can make offers and acquire the necessary property rights for the Project in conformance with all applicable provisions of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, Government Code section 7260 et seq., corresponding regulations, and County Policy No. 12-20.
REVIEW BY OTHERS
This item has been reviewed by County Counsel (John Tubbs II and Aaron Gest, Deputies County Counsel, 387-5455) on December 5, 2024; Public Works (Noel Castillo, Director, 387-7916) on October 23, 2024; Risk Management (Gregory Ustaszewski, Staff Analyst II, 386-9008) on November 22, 2024; Purchasing (Ariel Gill, Supervising Buyer, 387-2070) on October 22, 2024; Finance (Jessica Trillo, 387-4222, and Penelope Chang, 387-4886, Administrative Analysts,) on November 27, 2024; and County Finance and Administration (Valerie Clay, Deputy Executive Officer, 387-5423) on December 2, 2024.
(TJS: 893-0340)