RESOLUTION NO. CONTAINING APPROXIMATELY 587 SQ.FT. RD:EEH:LCP

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1 RD:EEH:LCP RESOLUTION NO. A RESOLUTION OF THE COUNCIL OF THE CITY OF SAN JOSE VACATING, UPON THE SATISFACTION OF CERTAIN CONDITIONS, A PORTION OF A PUBLIC EASEMENT ON PRIVATE PROPERTY LOCATED AT 1914 MCBAIN AVENUE APPROXIMATELY 420 FEET EAST OF LEIGH AVENUE WHEREAS, Subdivision (c) of Section 8333 of the Streets and Highways Code of the State of California authorizes the City Council to summarily vacate a public service easement if the easement has been superseded by relocation and there are no other public facilities located within the easement; and WHEREAS, the City Council intends to summarily vacate, upon satisfaction of the conditions set forth in Section 2 below, a portion of the public service easement located at 1914 McBain Avenue constituting all that real property situated in the City of San José, County of Santa Clara, State of California, more particularly described as follows (hereinafter Superseded Portion ): A PORTION OF THE 10 FOOT PUBLIC EASEMENT DESCRIBED IN THE DOCUMENT RECORDED JUNE 5, 1951 IN BOOK 2225, PAGE 483 OF OFFICIAL RECORDS, SANTA CLARA COUNTY BEING LOCATED LOT 3 AS SHOWN ON THAT CERTAIN MAP ENTITLED, "TRACT NO. 474 LATHAM SUBDIVISION, BEING A SUBDIVISION OF A PORTION OF LOT 2 OF THE LEIGH TRACT, SANTA CLARA COUNTY, CALIFORNIA," AND WHICH SAID MAP WAS FILED FOR RECORD IN THE OFFICE OF THE RECORDER OF THE COUNTY OF SANTA CLARA, STATE OF CALIFORNIA, ON MARCH 8, 1948, IN BOOK 15 OF MAPS, PAGE 45 BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHEAST CORNER OF THE WEST 30 FEET OF LOT 3; THENCE ALONG THE SOUTH LINE OF McBAIN AVENUE, SOUTH 89 36'30 WEST 4.80 FEET TO THE POINT OF BEGINNING; THENCE SOUTHERLY ALONG A LINE PARALLEL TO AND 4.80 FEET WEST OF THE EAST LINE OF SAID WEST 30 FEET OF LOT 3, SOUTH 00 21'00 EAST FEET; THENCE SOUTH 21 39'00 WEST FEET TO THE WESTERLY LINE OF SAID 10 FOOT PUBLIC EASEMENT; THENCE NORTHERLY ALONG SAID WESTERLY LINE, NORTH 00 21'00 WEST FEET TO THE SOUTHERLY LINE OF McBAIN AVENUE; THENCE ALONG SAID SOUTHERLY LINE, NORTH 89 36'30 EAST 5.20 FEET TO THE POINT OF BEGINNING. CONTAINING APPROXIMATELY 587 SQ.FT. T \ _2 Council Agenda: Item No.: 2.18a DRAFT--Contact the Office of the City Clerk at (408) or CityClerk@sanjoseca.gov for final document.

2 RD:EEH:LCP WHEREAS, attached to this Resolution as Exhibit A is a map approved by the Director of the Department of Public Works on November 10, 2015 entitled PLAT MAP SHOWING THAT PORTION OF PUBLIC EASEMENT TO BE VACATED AT 1914 MCBAIN AVENUE describing the Superseded Portion (hereinafter Map ); and WHEREAS, attached to this Resolution as Exhibit B is a copy of the report dated November 23, 2015 that the Director of the Department of Public Works submitted to the City Council setting forth the facts justifying the vacation of the Superseded Portion (hereinafter Report ); NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF SAN JOSE THAT: SECTION 1. The City Council hereby approves the Report and, based upon the facts recited in the Report and all other evidence submitted, makes the following findings in support of the vacation: 1. The Superseded Portion has been superseded by relocation, and there are no other public facilities located within the Superseded Portion of the public service easement; and 2. The Superseded Portion is not needed for present or prospective easement purposes; and 3. The public convenience will be served by the vacation and public necessity does not require reservation of any easement or right in the Superseded Portion. SECTION 2. As conditions precedent to the City s vacation of the Superseded Portion, the City must receive both a: (1) one-time payment of $14,675.00, representing the value of the Superseded Portion, and (2) release of claims against the City that is acceptable to the City Attorney (collectively, Vacation Conditions ). SECTION 3. Pursuant to Section 8333(c) of the Streets and Highways Code, and based on the findings made in Section 1 of this Resolution and upon satisfaction of the Vacation Conditions set forth in Section 2 of this Resolution, the City Council does hereby vacate the Superseded Portion described on the Map. SECTION 4. After receiving notification from the City Attorney that the Vacation Conditions have been satisfied, the City Clerk is hereby directed to record a certified copy of this Resolution, including the exhibits hereto, with the Office of the Recorder for the County of Santa Clara. SECTION 5. From and after the date this Resolution is recorded, the Superseded Portion hereby vacated will no longer constitute a public service easement. T \ _2 Council Agenda: Item No.: 2.18a DRAFT--Contact the Office of the City Clerk at (408) or CityClerk@sanjoseca.gov for final document.

3 RD:EEH:LCP ADOPTED this day of, 2015, by the following vote: AYES: NOES: ABSENT: DISQUALIFIED: ATTEST: SAM LICCARDO Mayor TONI J. TABER, CMC City Clerk T \ _2 Council Agenda: Item No.: 2.18a DRAFT--Contact the Office of the City Clerk at (408) or CityClerk@sanjoseca.gov for final document.

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5 COUNCIL AGENDA: ITEM: TO: HONORABLE MAYOR AND CITY COUNCIL FROM: Barry Ng SUBJECT: SEE BELOW DATE: November 23, 2015 Approved Date COUNCIL DISTRICT: 1 SUBJECT: SUMMARY VACATION OF A PORTION OF A PUBLIC EASEMENT ON PRIVATE PROPERTY LOCATED ON 1914 MCBAIN AVENUE AND RESOLUTION OF ENCROACHMENT RECOMMENDATION (a) Adopt a resolution: 1. Approving the report of the Director of Public Works setting forth the facts justifying the summary vacation of the public easement; 2. Vacating a portion of the public easement on 1914 McBain Avenue that has been superseded by relocation upon the satisfaction of the conditions set forth in the resolution; and 3. Directing the City Clerk, upon the satisfaction of the conditions set forth in the resolution, to record a certified copy of the resolution of vacation with the Office of the Recorder, County of Santa Clara; and (b) Adopt a resolution authorizing the City Manager to execute a quitclaim deed for the portion of public easement to be summarily vacated, which will be provided to the property owners of 1914 McBain Avenue, Eric L. and Christen M. Fisher, upon the satisfaction of conditions set forth in the resolution of vacation. OUTCOME Upon recordation of the resolution of vacation, the vacated portion of the public easement on the subject property will be terminated and will no longer constitute a public easement. By providing a quitclaim deed, the City will relinquish whatever rights it might have in the vacated portion of the public easement to the Fishers. As a condition precedent to the City s vacation and delivery

6 HONORABLE MAYOR AND CITY COUNCIL November 23, 2015 Subject: Summary Vacation of a Portion of a Public Easement at 1914 McBain Avenue Page 2 of the quitclaim deed, the City must receive a: (1) one-time payment of $14,675.00, representing the value of the vacated portion, and (2) release of claims against the City that is acceptable to the City Attorney. The resolution of vacation will not be recorded and the City will not provide the Fishers with the quitclaim deed until the City receives the payment of $14, and the release. BACKGROUND The subject property at 1914 McBain Avenue ( Subject Property ) is located on the south side of McBain Avenue between Leigh and Hurst Avenues as shown in the attached location map. This property developed as a part of Tract 474 in 1948, is currently identified as APN in the County Assessor s Map Book, and was annexed from unincorporated land in the County of Santa Clara to the City on November 19, In 1951, Tract 899, which is directly south of Tract 474, developed and the design of the storm system necessitated the need for the installation of a 12-inch reinforced concrete pipe public storm main on the Subject Property for the purpose of conveying stormwater mid-block from Patio Drive to McBain Avenue. To facilitate this storm sewer configuration, a ten (10) foot wide public easement for the purposes of installation and maintenance of the public storm main was created along the east side of the Subject Property through the recordation of a Grant Deed on June 4, 1951 in Book 2225 Page 483 of Official Records, Office of the Recorder, County of Santa Clara ( Public Easement or PE ). On February 25, 2013, a building permit was issued to the previous property owner for the demolition of the pre-existing single family house and the construction of the current single family house on the Subject Property. The construction of the house was completed on August 1, 2013, and later sold to the current property owners, Eric L. and Christen M. Fisher, on August 7, Following a storm event in February 2014, the City received reports from residents on Patio Drive of storm drainage issues. City staff investigated the reports and determined that the contractor that built the current house on the Subject Property removed the storm main without a proper permit causing flooding on Patio Drive. Upon further investigation, staff also determined that the current house was constructed within the PE. As the subject PE was dedicated to the City approximately three years after the original subdivision (Tract 474), of which the subject property was a part of, staff s review of the original subdivision map during building plan check did not reveal the existence of the PE and potential for conflict between the proposed building and the City s storm facility. In light of the issues encountered with this project, staff is revisiting its permitting process to address this moving forward. After engineering analysis by staff and coordination with the Fishers and their title company, North American Title Group (NATIC), staff determined that the optimal solution was to redesign and reconstruct the portion of the storm pipe that was improperly removed in lieu of requiring the Fishers to reconstruct significant portions of their home. Staff s redesign involved the use of

7 HONORABLE MAYOR AND CITY COUNCIL November 23, 2015 Subject: Summary Vacation of a Portion of a Public Easement at 1914 McBain Avenue Page 3 a lighter polyvinyl chloride (PVC) storm pipe which allowed a City on-call underground pipe contractor to install the replacement pipe within the resulting constrained area. Stormwater conveyance was restored in October With storm water conveyance restored, the Fishers, through NATIC, have requested that the City vacate the portion of the PE into which their home encroaches. On March 6, 2015, NATIC submitted an application on behalf of the Fishers to vacate a portion of the PE with the intent to remove that portion upon which the existing house currently encroaches ( Superseded Portion ). ANALYSIS Under Section 8306(a) of the California Streets & Highways Code, the PE constitutes a public service easement, and pursuant to Sections 8312 and 8333(c) of the California Streets & Highways Code, the City Council may summarily vacate all or any part of a public service easement when the easement has been superseded by relocation and there are no other public facilities located within the easement. As mentioned above, staff redesigned and relocated the storm main with PVC pipe which is significantly lighter than the original reinforced concrete storm pipe (RCP). In doing so, the City was able to install the replacement storm main without much difficulty considering the previous 10-foot PE had been reduced by the house encroachment. Although the City s easement rights on the Subject Property have been impaired by the house encroachment, with the successful installation of the replacement PVC pipe within the constrained area, staff believes that the remaining 5-foot wide easement area is sufficient for the long term maintenance of the storm pipe by the City. In addition to the vacation, NATIC has requested that the City provide a quitclaim deed to the Fishers for the Superseded Portion. The quitclaim deed will relinquish any rights the City might have in the Superseded Portion. Prior to the vacation and execution of the quitclaim deed, the City must receive a: (1) one-time payment of $14,675.00, representing the value of the vacated portion, and (2) release of claims against the City that is acceptable to the City Attorney. After the City receives the payment of $14,675 and the aforementioned release, it will record the resolution of vacation, at which time the Superseded Portion of the property will no longer be encumbered by this easement. With this consideration, staff has determined that the public convenience is served by the vacation and that maintaining the Superseded Portion as a public service easement is unnecessary given that this portion is no longer required for the storm drainage system. Lastly, the vacation would eliminate the PE encroachment and thereby eliminate future expenditures of public resources on this issue.

8 HONORABLE MAYOR AND CITY COUNCIL November 23, 2015 Subject: Summary Vacation of a Portion of a Public Easement at 1914 McBain Avenue Page 4 While the actions recommended for Council action in this memorandum will resolve the encroachment issue with the Fishers and NATIC, City staff and the City Attorney s Office will continue to pursue reimbursement for the approximately $95,000 in costs the City incurred to: (1) investigate and determine the cause of the storm drain issues on Patio Drive; and (2) redesign and reconstruct the storm main, from the developer and contractor who built the Fishers home. The City Attorney s Office is currently in communication with the insurance carriers for both the developer and contractor and is attempting to recover the costs directly from the insurance carriers. If these efforts are unsuccessful, the City Attorney s Office will work with the City Manager s Office to evaluate potential remedies for recouping the City s costs, and if determined appropriate, initiate formal legal proceeding against the developer, the contractor, and their insurers. EVALUATION AND FOLLOW-UP If Council adopts the resolutions recommended by staff, no further action by the City Council will be required. The City Clerk will be directed to record the resolution of vacation after the satisfaction of the conditions set forth in this memorandum, and upon recordation, the Superseded Portion will no longer constitute a public service easement. PUBLIC OUTREACH/INTEREST With the exception of this memorandum being posted to the City s website for the December 15, 2015 Council Agenda, staff believes public outreach is not applicable to the minor nature of this partial vacation. COORDINATION The vacation has been coordinated with the Department of Transportation, Department of Planning, Building and Code Enforcement and the City Manager s Budget Office. The resolution of vacation has been reviewed by the City Attorney's Office. COST SUMMARY/IMPLICATIONS The Public Works Department collected cost-recovery fees in 2015 of $3,745 to process the subject vacation. These fees were deposited into the Public Works Department Services Fee Fund (Fund 001).

9 HONORABLE MAYOR AND CITY COUNCIL November 23, 2015 Subject: Summary Vacation of a Portion of a Public Easement at 1914 McBain Avenue Page 5 CEQA Statement of Exemption (DPW File No ) /s/ BARRY NG Director of Public Works For questions please contact Michael Liw, Deputy Director, at ML:NM:ab Attachment