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DRAFT--Contact the Office of the City Clerk at (408)535-1260 or [email protected] for final document.
RESOLUTION NO. ______________
A RESOLUTION OF THE COUNCIL OF THE CITY OF SAN
JOSE CONDITIONALLY VACATING AN
APPROXIMATELY 4,059 SQUARE FOOT PORTION OF
THE BLOCK 64 ALLEYWAY BETWEEN E. VIRGINIA
STREET AND MARTHA STREET; DECLARING THE
VACATED PROPERTY TO BE “EXEMPT SURPLUS
LAND” UNDER CAL. GOV. CODE §54221(F)(1)(C)/(E)
AND SAN JOSE MUNICIPAL CODE §4.20.070;
AUTHORIZING THE CITY MANAGER TO NEGOTIATE
AND EXECUTE A PURCHASE AND SALE AGREEMENT
AND QUITCLAIM DEED AND ALL OTHER NECESSARY
DOCUMENTS TO EFFECTUATE THE TRANSFER OF A
PORTION OF THE SURPLUS PROPERTY TO D’AMICO
TIRE SERVICE COMPANY, INC.; AND AUTHORIZING
THE CITY MANAGER OR DESIGNEE TO NEGOTIATE
AND EXECUTE ALL OTHER DOCUMENTS NECESSARY
TO ACCEPT THE FEE TITLE OWNERSHIP OF AN
APPROXIMATELY 3,602 SQUARE FOOT PORTION OF
PROPERTY OWNED BY JAMES L. D’AMICO
WHEREAS, a mixed-use development is proposed for 802 S. First Street, on the block of E. Virginia Street between S. 1st Street and S. 2nd Street, including Assessor’s Parcel Numbers 472-17-005, -006, -034, -094, and -095 (“Project”); and
WHEREAS, in order to facilitate the development of the Project proposed by Maracor Development, Inc. (“Developer”), the City of San José (“City”) would need to vacate the northern portion of the current alley, which serves as the entrance and exit out to E.
Virginia Street, and convey fee title ownership to D’Amico Tire Service Company, Inc.; and
WHEREAS, the Developer would then convey fee title ownership of an approximately 3,602 square foot portion of a 7,405 square foot commercial property owned by James L. D’Amico, known as Assessor’s Parcel Number 472-17-034, (“Swap Property”) to the NVF:CHD:KML
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City to encumber with a right-of-way for public use, which would serve as the new entrance and exit to S. 2nd Street; and
WHEREAS, Chapter 4 of Part 3 of Division 9 of the Streets and Highways Code of the State of California authorizes the City Council to summarily vacate a public street if the City Council determines that it has been superseded by relocation, and there are no in- place public utility facilities that are in use and would be affected by the vacation; and
WHEREAS, the City Council intends to, after the satisfaction of the condition set forth in Section 3 of this Resolution, summarily vacate an approximately 4,059 square foot portion of the Block 64 alley way between E. Virginia Street and Martha Street (“Vacation Property”) constituting:
REAL PROPERTY in the City of San Jose, County of Santa Clara, State of California, being a portion of the Alley Way of Block 64 as shown upon that certain Map entitled “Map of that Part of the Reed Addition to the City of San Jose”, filed for record on March 18, 1869, in Book C of Miscellaneous Records, page 322 Santa Clara County Records, described as follows:
BEGINNING at the northerly corner of said Alley Way, being on the southeasterly line of East Virginia Street;
Thence along said southeasterly line, South 60°07’30” West, 25.00 feet, to the southwesterly line of said Alley Way;
Thence along said southwesterly line, South 29°52’30” East, 162.36 feet; Thence North 60°07’30” East, 25.00 feet, to the northeasterly line of said Alley Way;
Thence along said northeasterly line, North 29°52’30” West, 162.36 feet, to the POINT OF BEGINNING.
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Containing 4,059 square feet, more or less.
WHEREAS, attached to this Resolution as Exhibit “A” and incorporated herein is a map approved by the Director of the Department of Public Works on April 1, 2022 entitled “PLAT TO ACCOMPANY DESCRIPTION: ALLEY VACATION” showing the Vacation Property; and
WHEREAS, attached to this Resolution as Exhibit “B” and incorporated herein is a map approved by the Director of the Department of Public Works on April 5, 2022 entitled “PLAT TO ACCOMPANY DESCRIPTION: RIGHT OF WAY DEDICATION IN FEE” showing the Swap Property; and
WHEREAS, attached to this Resolution as Exhibit “C” and incorporated herein is a copy of the report, dated June 6, 2022 that was submitted to the City Council setting forth the facts justifying the conditional summary vacation of the Vacation Property (hereinafter “Report”); and
WHEREAS, the City owns the Vacation Property in fee; and
WHEREAS, land that is a former street, right of way, or easement and is transferred to an adjacent property owner and/or which is being exchanged for other lands necessary for the City’s use is “exempt surplus land” under Cal. Gov. Code §54221(f)(1)(C)/(E);
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 Report and all other evidence submitted, makes the following findings:
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A. Upon satisfaction of the condition specified in this Resolution, the Vacation Property has been superseded by relocation and the vacation of the Vacation Property would not cut off all access to a person’s property which, prior to the relocation, adjoined the street; and
B. Government Code §65402 does not apply to this vacation; and
C. The proposed vacation is consistent with the City’s General Plan; and
D. The Vacation Property is unnecessary for nonmotorized transportation as bordering rights-of-way are available and more suitable for such transportation; and
E. There are existing in-place public utility facilities located within the Vacation Property that will be relocated by the Developer at no cost to the City; and
F. The public convenience and necessity does not require the reservation of a public service easement; and
G. The Vacation Property is not needed for, nor adaptable to, municipal purposes, and the public interest would be served by the sale of such surplus real property; and
H. The proposed sale of the Vacation Property conforms to Cal. Gov. Code §54221(f)(1)(E) in that the Vacation Property is a former street, right of way, or easement and is being sold to an owner of an adjacent property, as well as Cal. Gov. Code §54221(f)(1)(C) in that the Vacation Property is NVF:CHD:KML
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being exchanged by the City for other lands necessary for the City’s use, and as such, should be declared “exempt surplus land”; and
I. The proposed sale of the Vacation Property also conforms to San José Municipal Code §4.20.070 in that the sale is to an adjacent property owner and the transaction is for fair market value.
SECTION 2. Based upon the findings made in Section 1 of this Resolution and the provisions of Chapter 4 of Part 3 of Division 9 of the Streets and Highways Code of the State of California, the City Council does hereby summarily vacate and declare the Vacation Property as “exempt surplus lands” to the needs of the City, subject to the condition stated in Section 3 below.
SECTION 3. The vacation of the Vacation Property shall be conditioned on, and shall not occur until, the Developer completes environmental remediation activities on the Swap Property to a condition which meets the satisfaction of the City’s Environmental Services Department.
SECTION 4. After receiving written confirmation from both the Director of Public Works and the Office of the City Attorney that the condition in Section 3 has 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 Vacation Property will no longer constitute a public street.
SECTION 6. The Vacation Property of the City-owned Block 64 alley way is hereby declared “exempt-surplus land” to the needs of the City under Cal. Gov. Code §54221(f)(1)(E) as the land is a former street, right of way, or easement not necessary NVF:CHD:KML
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for the City of San José’s use and is being transferred to an adjacent property owner and under Cal. Gov. Code §54221(f)(1)(C) as it is being exchanged by the City for other lands necessary for the City’s use.
SECTION 7. The City Manager, or her designee, is hereby authorized to:
A. Negotiate and execute a Purchase and Sale Agreement and Quitclaim Deed, and all other necessary documents to effectuate the transfer to D’Amico Tire Service Company, Inc., a California corporation, from the City of San José, for the sale of the portion of the surplus City-owned Vacation Property for the consideration of $65,241.80 by direct negotiation under San Jose Municipal Code Section 4.20.070 and in accordance with Council Policy No. 7-13(D)(1) as the transferee is an adjacent property owner and the transaction is for fair market value;
B. Negotiate and execute all other documents necessary to accept the fee title ownership of an approximately 3,602 square foot portion of the property owned by James L. D’Amico, known as Assessor’s Parcel Number 472-17-034 (“Swap Property”) and complete the transactions; and
C. Negotiate and execute all other documents necessary to effectuate these transactions.
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ADOPTED this _____ day of ___________, 2022, by the following vote:
AYES:
NOES:
ABSENT:
DISQUALIFIED:
SAM LICCARDO
Mayor
ATTEST:
TONI J. TABER, CMC
City Clerk
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EXHIBIT A
VACATION PROPERTY
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EXHIBIT B
SWAP PROPERTY
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EXHIBIT C
[Exhibit follows on next page.]
TO: HONORAB LE MAYOR FROM: Nanci Klein
AND CITY COUNCIL Matt Cano
SUBJE
CT: SEE BELOW DATE : June 6, 2022
Approved Date
6/9/2 022
COUNCIL
DISTRICT: 3
SUBJE
CT: CONDITIONAL SUMMARY VACATION, DECLARATION OF
SURPLUS, AND SALE OF A PORTION OF BLOCK 64 ALLEYWAY
BETWEEN EAST VIRGINIA STREET AND MARTHA STREET
RECOMM
ENDATION
Conduct
a public hearing and adopt a resolution to authorize the following:
a) App
rove the report of the Director of Public Works setting forth the facts justifying the conditional summary vacation of an approximately 4,059 square foot portion of the Block 64 alleyway between East Virginia Street and Martha Street (Vacation Property); b) Condit
ionally vacate the Vacation Property, which after the satisfaction of the conditions, will be superseded by relocation;
c) After s
atisfaction of the condition, direct the City Clerk to record a certified copy of the resolution of vacation for the Vacation Property with the Office of the Recorder, County of Santa Clara;
d) Declar
e the Vacation Property of the City-owned Block 64 alleyway as “exempt-surplus land” to the needs of the City under Cal. Gov. Code §54221(f)(1)(E) as the land is a former street, right of way, or easement and if being sold to an owner of adjacent property as well as Cal. Gov. Code §54221(f)(1)(C) in that the Vacation property is being exchanged by the City for other lands necessary for the City’s use; e) Dir
ect the City Manager to negotiate and execute a Purchase and Sale Agreement and Quitclaim Deed, and all other necessary documents to effectuate the transfer to Damico Tire Service Company, Inc.,., a California Corporation, from the City of San José, for the sale of the portion of the surplus City-owned Vacation Property for the consideration of $65,241.80 by direct negotiation under San José Municipal Code Section 4.20.070 and in COUNCIL AGENDA: 6/21/22
FILE: 22-1016
ITEM: 8.7
EXHIBIT C
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
HONORABLE MAYOR AND CITY COUNCIL
June 6, 2022
Subject: Conditional Summary Vacation, Declaration of Surplus, and Sale of a Portion of Block 64
accordance with Council Policy No. 7-13(D)(1) as the transferee is an adjacent property owner and the transaction is for fair market value;
f) Authorize the City Manager, or her designee, to negotiate and execute all other documents necessary to accept the fee title ownership of an approximately 3,602 square foot portion of the property owned by James L. Damico, known as Assessor’s Parcel Number 472-17-034 (Swap Property) and complete the transactions; and
g) Authorize the City Manager to enter into all other documents necessary to effectuate these transactions.
OUTCOME
Staff has proposed a conditional summary vacation of the Vacation Property, which after satisfaction of the conditions to vacate, the resolution of vacation will be recorded, and the subject property will be abandoned as a public street and no longer constitute part of the Block 64 alleyway between East Virginia Street and Martha Street. The Vacation Property will be declared as “exempt surplus land” to the needs of the City of San José (City) and conveyed to Damico Tire Services Company, Inc. for a purchase price of $65,241.80. The City will acquire fee title ownership of the Swap Property for use by the public as an alleyway. This property exchange will reroute the public alleyway access to South Second Street and facilitate the development of the project known as 802 South First Street proposed by Maracor Development, Inc. (Developer). The project includes 166 total residential units, of which 33 units will be affordable, and 1,510 square feet of ground-floor retail space, consistent with the General Plan and rezoning approved by the City Council on February 23, 2021, and as proposed by Planned Development permit PD21-011.
BACKGROUND
Vacation Property and Swap Property
The Vacation Property is the approximately 4,059 square foot northern portion of the Block 64 alleyway between East Virginia Street and Martha Street that is owned by the City and operated as a public alley. A location map of the Vacation Property is included in Attachment B. The Swap Property is an approximately 3,602 square foot portion of a 7,144 square foot commercial property owned by James L. Damico, known as Assessor’s Parcel Number 472-17-034. A location map of the Swap Property is included in Attachment C.
Proposed Development
In 2017, Damico Tire Service Company, Inc. submitted an application for a Planned Development Rezoning from the CP Commercial Pedestrian and CN Commercial Neighborhood Zoning District to a PD Planned Development Zoning District (PDC17-022). Later, it also applied for a General Plan Text Amendment (GPT18-009) followed by a General Plan
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
HONORABLE MAYOR AND CITY COUNCIL
June 6, 2022
Subject: Conditional Summary Vacation, Declaration of Surplus, and Sale of a Portion of Block 64
Amendment (GP20-004). The General Plan Amendments and rezoning were approved by City Council on February 23, 2021, and allowed up to 246 residential units and 4,600 square feet of commercial uses. Subsequently, a new application for a Planned Development permit (PD21- 011) was submitted by the Developer which includes APNs 472-17-005, -006, -034, -094, and - 095. The current proposed project includes 166 total residential units, of which 33 units will be affordable, and 1,510 square feet of ground-floor retail space. In order to accomplish the land use plan as proposed under PD21-011, the City would need to vacate the northern portion of the current alley, which serves as the entrance and exit to East Virginia Street, and convey fee title ownership to the applicant. The applicant would then convey fee title ownership of the Swap Property to the City to encumber with a right-of-way for public use. This right-of-way would serve as the new entrance and exit to South Second Street.
Environmental
Elevated levels of lead have been discovered in the shallow soil beneath the Swap Property to be transferred to the City. The Developer has entered into a regulatory oversight agreement with the County of Santa Clara Department of Environmental Health to oversee the Developer’s removal of the contaminated soil for off-site disposal. The Environmental Services Department will review the condition of the soil after the Developer completes remediation activities to ensure the removal has been satisfactorily completed with no deed restrictions or future obligations prior to the City’s acceptance of the Swap Property.
ANALYSIS
A City commissioned appraisal valued the Vacation Property at $575,687.97, and the Swap Property at $510,446.17. Since the Developer will be transferring the fee title of the Swap Property to the City for use as an alleyway and constructing the alley improvements, the value of the Swap Property has been deducted from the value of the Vacation Property. The Developer will then pay the City the balance in value, or $65,241.80.
There were traces of elevated levels of lead on the Swap Property. Before the Swap Property is transferred to the City, the Developer will complete remediation activities to the satisfaction of the Environmental Services Department. The Developer will then construct the necessary improvements for the alleyway.
There are existing, in-use, public utilities located within the Vacation Property that will require relocation, in part or in whole. The conditional vacation requires the Developer to submit copies of the executed agreements with the affected utility companies that approve the relocation and realignment of utilities to be completed by the Developer, at no cost to the City.
Under §8330(a) of the California Streets and Highway Code, the City may summarily vacate the alley superseded by the relocation of the alley and any in-use public utilities to South Second Street. As part of the conditions of vacation and prior to the issuance of Public Works Clearance of a Building Permit, the Developer is required complete the following:
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
HONORABLE MAYOR AND CITY COUNCIL
June 6, 2022
Subject: Conditional Summary Vacation, Declaration of Surplus, and Sale of a Portion of Block 64
• Obtain approval of the Planned Development permit (PD21-011) • Enter into a secured City-Private Developer construction agreement that guarantees the reconstruction and realignment of the alleyway to South Second Street • Complete remediation activities of the Swap Property to the satisfaction of the Environmental Services Division
• Submit copies of the executed utility agreements to the City for the approved relocation and realignment of any existing, in-use, public utilities to South Second Street
The Vacation Property is eligible to be declared “exempt surplus land” under Cal. Gov. Code §54221(f)(1)(C) as the land is being exchanged by the City for other lands necessary for the City’s use (here, a replacement public easement) as well under subsection §54221(f)(1)(E) as the land was burdened by an existing public easement and is being conveyed to the owner of an adjacent property.
Staff recommends proceeding with the conditional vacation and proposed swap of lands to facilitate the construction of the proposed development. Access through the alleyway out to Martha Street will be retained since the City will receive a constructed alleyway entrance and exit out to South Second Street at no cost. Once the City takes ownership of the Swap Property encumbered with a right-of-way, the City will be responsible for the future maintenance of the alleyway.
Key Terms
Key terms of the proposed authorization to negotiate and execute a Purchase and Sale Agreement for the Vacation Property and Swap Property include:
1. VACATION PROPERTY: Approximately 4,059 square feet of Block 64 alley, more particularly described in Attachment B.
2. SWAP PROPERTY: Approximately 3,602 square feet of a portion of APN: 472-17-034, more particularly described in
Attachment C.
3. COMPENSATION: City to receive the Swap Property and $65,241.80 in consideration for the Vacation Property.
4. DEPOSIT: No deposit.
5. ENVIRONMENTAL: The Developer will deliver to the City the Swap Property with remediation activities completed, and
in a condition satisfactory to the Environmental
Service Department.
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
HONORABLE MAYOR AND CITY COUNCIL
June 6, 2022
Subject: Conditional Summary Vacation, Declaration of Surplus, and Sale of a Portion of Block 64
6. CONDITION OF VACATION: Developer will be required to 1) obtain approval of the Planned Development permit (PD21-011); 2)
enter into a secured City-Private Developer
construction agreement that guarantees the
reconstruction and realignment of the alleyway; 3)
complete the environmental remediation activities
on the Swap Property to a condition which meets
the satisfaction of the Environmental Service
Department; and, 4) submit copies of the executed
utility agreements to the City for relocation of the
public utilities within the Vacation Property. Upon
these conditions being met, the City will vacate the
Vacation Property.
CONCLUSION
The City Council’s approval of the recommended conditional summary vacation, declaration of the portion of the Vacation Property as “exempt surplus land”, and authorization to negotiate and execute a Purchase and Sale Agreement will allow staff to work with the Developer to proceed with the necessary environmental remediation activities on the Swap Property to meet a condition satisfactory to the Environmental Services Department. After the conditions of the vacation have been met, including approval of the Planned Development permit PD21-011, the City will proceed with the sale of the Vacation Property to Damico Tire Services Company, Inc. for $65,241.80 and accept the conveyance of the Swap Property to the City. The Swap Property will be encumbered with a right-of-way for use by the public as an alleyway.
EVALUATION AND FOLLOW-UP
If City Council adopts the recommended actions, no further action by City Council will be required for the vacation of the Vacation Property. After receiving written confirmation from the Director of Public Works and the Office of the City Attorney that the conditions of the vacation have been satisfied, the City Clerk will record the resolution of the vacation, at which time the vacation will be complete.
After the resolution of vacation is recorded, staff will proceed with the sale of the Vacation Property per the outlined terms of the purchase and sale agreement and the Developer will convey to the City fee title ownership in a portion of the Swap Property.
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
HONORABLE MAYOR AND CITY COUNCIL
June 6, 2022
Subject: Conditional Summary Vacation, Declaration of Surplus, and Sale of a Portion of Block 64
CLIMATE SMART SAN JOSE
The recommendation in this memorandum has no effect on Climate Smart San José energy, water, or mobility goals.
PUBLIC OUTREACH
All concerned utility companies have been contacted in writing and the Developer is conditioned to submit executed utility agreements to the City that approves the relocation of the affected public utilities within the Vacation Property.
In addition, PDC17-022 / GPT18-009 / GP20-004 was posted on the City’s website for the City Council approval on February 23, 2021.
This memorandum will be posted on the City’s Council Agenda website for the June 21, 2022, City Council meeting.
COORDINATION
This memorandum has been coordinated with the Department of Planning, Building and Code Enforcement Department, Department of Transportation, Fire Department, Environmental Services, the City’s Manager’s Budget Office, and the City Attorney’s Office.
COMMISSION RECOMMENDATION/INPUT
No commission recommendation or input is associated with this action.
COST SUMMARY/IMPLICATIONS
The net proceeds from the sale of the Vacation Property, after deducting the value of the Swap Property, total $65,241.80 and will be deposited in the General Fund upon completion of the transactions described in this memorandum. These proceeds will go towards meeting the revenue estimate that is included in the budget for the sale of real property in the General Fund. Costs associated with soil remediation activities for the Swap Property and the construction of necessary improvements to the alleyway will be assumed by the Developer in full. The City will not incur additional costs to receive the Swap Property and newly constructed alleyway entrance and exit to South Second Street.
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
HONORABLE MAYOR AND CITY COUNCIL
June 6, 2022
Subject: Conditional Summary Vacation, Declaration of Surplus, and Sale of a Portion of Block 64
The Public Works Department collected cost recovery fees during the fiscal year 2021-2022 of $8,233 to process the vacation of the Subject Property. These fees were deposited to the Public Works Development Fee Program in the Public Works Development Fee Program Fund.
CEQA
Not a Project, File No. PP17-003, Agreements/Contracts (new or amended) resulting in no physical changes to the environment.
/s/ /s/
NANCI KLEIN
MATT CANO
Director of Economic Development and Director, Public Works Cultural Affairs
For questions, please contact Kevin Ice at [email protected] or (408) 535-8197 and J Guevara, Deputy Director of Public Works at (408) 535-8123.
Attachments:
ATTACHMENT A – Location Map
ATTACHMENT B – Plat and Description of Vacation Property ATTACHMENT C – Plat and Description of Swap Property
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
ATTACHMENT A
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
ATTACHMENT A (CONT)
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
ATTACHMENT B
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
ATTACHMENT B (CONT)
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
ATTACHMENT C
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
ATTACHMENT C (CONT)
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.