The Culvert of Brush Road

The Background

The culvert at the junction of the private Brush Road and California State Highway 17 failed during the winter of 2005. The culvert consists of a vertical structure rising from a concrete box (see picture at the top right of this web page) which collects water that has drained down the mountain and then directs the water out of the side of the concrete box into a horizontal, 100 foot long pipe which runs underneath Brush Road and drains the the water on the downhill side, towards the state highway (see picture). The concrete box holding the vertical part of the culvert is located on private land that is enclosed in the small yellow box on the Culvert Aerial Views page of this web site. The large yellow box shows the property borders of the parcel in which the culvert is located.

The failure occurred where the horizontal pipe used to emerge from the side of the concrete box. As can be seen in the picture, the pipe no longer connects to the box, and instead has started to slide underneath the road. As a result, in a rainstorm, water pools up & flows through and around the horizontal pipe and is eroding underneath Brush Road, and eventually will lead to the collapse of the road.

The State of California has been maintaining this culvert since 1939, without an easement to do so.

The various landowners of the parcel (including the current) have allowed this maintenance to occur, they have apparently refrained from performing any maintenance themselves, while remaining liable for any damage the faliure to maintain may cause to the road, or that the resulting hole may present to unsuspecting motorists driving on Brush Road.

After consultation with legal representation of the State of California, council to the Brush Road corporation, council for the current land owner, and a search of the County of Santa Clara property records, the parties have entered into the Agreement and Release below which governs this land going forward, and to allow repairs on the culvert to proceed.

Timeline of Communications

1941

02/11/1941 Steinbeck - Foster easement (1941) (photcopy)

02/11/1941 Steinbeck - Foster easement (1941) (retyped). John Ernst Steinbeck apparently paid to realign the road in the late 1930s as Highway 17 was being created. Later he executed this agreement with Foster, across whose lands the road runs, making it clear that Steinbeck and his assignees have an ingress and egress right, including the right to repair.

1989

5:04 pm, 10/17/1989 Magnitude 7.0 earthquake strikes at Loma Preita, 9 miles south of the Culvert, on the San Andreas Fault, which runs along State Highway 17, The fault is located 700 feet from the culvert. State Highway 17 is closed for one month due to a landslide. Most homes on Brush Road suffer minor to major damage; Two homes are destroyed. All wells are severed by the earth movement. The road suffers serious surface damage, and many of the existing culverts are compromised.

1991
10/21/1991 Brush Road hires DSS Construction to repave the road, and remove and replace all of the existing culverts. The plan of work shows all of the culverts which Brush Road has today existed in 1991, had been damaged in the 1989 earthquake, and were replaced in 1991. This clearly shows these culverts have been in place for more than 25 years. Sal alledges that the culverts designated C3 and C4 on the last page are new development created in 2004; in truth, these culverts have been in place for decades.

1993

12/06/1993 Brush & Old Well Mutual Water Company is established to bring San Jose Water city water to the road, (replacing the many wells which were destroyed by the earthquake) and the BOWMWC builds a water main down the road. Their AsBuilt blueprints document these same culverts C3 and C4, which are circled in the as built diagram in the link; at this time Danais owned what is today owned by Sal. The original AsBuilt is also available.

2005
Rainfall 110% of normal (June 1,2004 - May 30, 2005)

03/01/2005 Letter from the State to Brush Road first informing us of the failure of the Culvert.

05/01/2005 Caltrans draws up a plan that suggests inserting a platic pipe inside the failed 25 inch horizontal pipe, and reattaching this to the vertical upright. This plan would need no permits, as it would restore the original structure. Brush engages a contractor to send a camera down the horizontal pipe to access its integrity. We quickly discover that the pipe is rotted out almost immediately, and partially collapsed, such that the water runs straight out the bottom and has carved a big cave under the pipe. As such we have no confidence that we will be able to insert a large diameter pipe inside the 25 inch pipe.

08/25/2005 Brush Road Annual meeting minutes. Discusses the Culvert, and accepts report from a member (Michael Hunt) who has been investigating the situation. Brush elects a new Board of Directors. Plan of action is laid out to raise money, learn our options and get a fix done as soon as possible.

08/31/2005 Brush Road hires Mark Strombotne to advise the Board on dealing with the State on the Culvert matter.

09/14/2005 Brush Road engages California Asphalt & Paving to resurface parts of Brush Road, as well as to rebuild the intake to culverts C1, C3 and C8

09/16/2005 Brush sends letter to State demanding that they fix the Culvert structure which (we thought at the time) they had built on the land of one of our members.

10/07/2005 Brush sends letter to State offering the Brush Road Corporation would contribute $15,000 towards the repair, if the State performed the repair promptly, and recorded an agreement affirming their further obligation to repair and maintain the structure, as they had been doing for 70 years.

10/17/2005 California Asphalt & Paving completes its work repaving and redoing the culvert intakes.

10/20/2005 State counters with an offer to contribute $20,000 to Brush if it will perform the repair, and recorded an agreement having Brush take the future obligation to repair and maintain the structure.

10/20/2005 Brush counters with a offer to pay for the complete fix if the State continues to maintain the structure.

11/01/2005 State responds, saying it has no interest or ability to maintain a structure which is not on their land.

11/23/2005 Letter summarizing the above communications, and noting that rains have commenced making performing any repairs that year difficult, and increases the offer to pay $25k towards a repair, if the State continues to perform maintenance

12/13/2005 A series of emails and phone calls between Brush and the State; Brush communicating that they are interested in the settlement proposal, and given the time of year wish to examine doing a temporary fix right away, followed by a more permanent fix after the rains are over. The State that Brush hire an engineer to study the water flow, and suggest a temporary & permanent repair; Brush shall present this to the State for its approval, and then when obtained put the proposal out to bid

2006
Rainfall 90% of normal (June 1,2005 - May 30, 2006)

1/16/2006 - 4/16/2006 Contractors and engineers refuse to bid on the job, or even postulate a possible fix, as conditions at the site are too dangerouus even to approach the edge of the ravine. Brush Road installs reflective Caution tape on sawhorses to warn away drivers from the hazard.
6/7/2006 Brush Road engages a number of contractors (Messa & Sons, Top Down, Porter Construction) to look at the job, and offer ideas. We then take the ideas to an engineer to write up as a plan. This engineer never gets around to it, and so we fire him and...

10/3/2006 Brush Road hires Roy Nelson to perform an Engineering Study of the complete flow that could be generated by the mountain, and draw up the consensus design of a structure that can handle this flow.

12/18/2006 Minutes of the Winter 2006 Members meeting - State verbally agreed to pay for some repair work, but Brush must get engineering plans drawn up, and obtain bids from two contractors for the approval of the State. The State suggests some of its favored contractors; we contact them and none of them are interested in a job this small. We have obtained engineering plans, and are seeking bids. Members authorize Brush to continue down this path; and also to urge all of our guests to take notice of the hazard posed by the culvert.

2007
Rainfall 54% of normal (June 1,2006 - May 30, 2007)

1/18/2007 We get one bid, from Messa, for $102k. We need a second bid.

2/14/2007 We get a second bid, from UpGrade Construction, for $123,480k.

02/20/2007 Brush meets with its engineer to discuss the bids. Consensus is that because we have not done a full engineering study (cost estimate is about $15k to do this), the contractors do not know how much fill will be needed, so are inflating their estimates to cover themselves. We decided to present the bids we have to CalTrans and have an open dicussion on what to do, how much of the cost will they pay, what do they suggest we do.

07/10/2007 Letter from Brush to the State with the bids we have been able to obtain, and seeking their approval and funding.

7/11/2007 K. Kim tells us she has moved on to other responsibilies, and passes us on to someone else. We also contact our State Senator (Able Maldanado), asking him to help call attention to this matter.

8/20/2007 CalTrans assigns Frank Valentini as the new attorney, and we bring him up to speed on the matter.

08/27/2007 Letter from the State outlining that while they have maintained the culvert for 70 years, they will cease doing this, and checking to see if the offer of $20,000 to help us get the culvert fixed is still valid.

09/2/2007 Brush Board brings Sal Giovando up to speed on the matter, and asking for his help. At this time we all still believe that the State built this structure on land that was later purchased by Sal; and that the State was obligated to continue to maintain the structure.

09/5/2007 Brush calls Sal to discuss the letter. Sal says he does not care about this culvert, and for Brush to do what ever we think is right to fix it ourselves. Sal states that he does not know any engineers or politicians, that he is a real estate landlord (http://www.vrent.com) , and he can not spend any time helping us.

09/09/2007 CalTrans tells us they will not renew their offer to pay $20k to help fix the culvert. They take the position it is not their problem.

09/10/2007 - 09/24/2007 Brush road does extensive research to understand options. Again, Highway 17 was built in 1937, during great depression, and there was a spirit of "build it now, get the rights later" at that time. We compared the style of construction of the culvert with similar culverts on Caltrans land, and found them to be identical. We learned that Caltrans did acquire the land under part of Brush Road in 1940, but not the land under this culvert. We obtained Title Reports. We searched easement agreements. We documented our observations of Caltrans maintaining the culvert over the past 50 years. We prepared a litigation plan for if we needed to sue Caltrans to compell them to fix their culvert.

09/24/2007 Brush communicates to Caltrans that we feel that "They built it, they broke it, and they must fix it". At minimum, even if they can show that they did not build it, they have already admitted that they have been exclusively maintaining it for the past 70 years, and so it is clear that it was them that broke it, so they must fix it. We make it clear that we feel the liability for a catastrophic failure is theirs, and so if such a failure blocks Highway 17, it is their fault.

10/10/2007 Caltrans digs out the lower culvert, which is on their land, and which accepts the water from the failed culvert, and builds a large berm to protect Highway 17 if that lower culvert should fail.

10/18/2007 - 11/05/2007 Brush meets with the chief of staff for Abel Maldanado, our State Senator, at the site. We show her the various communications, and she agrees to present this to the senator. The senator works to get Caltrans to take another look at the matter, and to put Kimberley Kim back on the issue. Brush files a claim to recover its engineering costs incured following the original agreement where the State would fund a repair if Brush Road developed a repair plan, as a statue of limitations looms.

12/7/2007 Caltrans agrees to have its engineers and department staff meet with the Brush Road board, with out lawyers present, to see if a workable solution can be achieved outside of the court system. (Seems like an excellent idea! - Editor).

12/14/2007 Caltrans and Brush meet in their Oakland headquarters, discuss the issues as we each understand them, explore various options, and agree to continue to work together.

2008
Rainfall 68% of normal (June 1,2007 - May 30, 2008)

1/2008 - 2/2008 Caltrans and Brush have a series of meetings, their staff inspects the site jointly with us.

03/31/2008 Caltrans discovers the 1941 Foster - Steinbeck agreement, and forwards a copy to Brush Road. Basically, this clearly shows the culvert was built by Steinbeck, not by the State, and further has Steinbeck retaining the rights to use & repair the entire road and all of its culverts.

1/2008 - 4/2008 Caltrans and Brush have further face to face discussions and phone negotiations, and finally agree in principle that Caltrans will pay $42,000 to Brush if we fix the culvert, and take recorded ongoing responsibility for this section of road. State drafts up an agreement between Brush Road, Sal (as the owner of the land even though he is also a member of Brush Road), and the owner of three additional parcels on Ridge Road, which is not a part of the Brush Road corporation, but rely who rely on this road for access to their homes.

05/28/2008 Minutes of the Spring 2008 Members meeting. Motion is made and passed to direct the Brush Road Corporation to sign the Agreement and Release with the State, and accept the State money, and also to proceed with work towards getting the culvert repaired

06/10/2008 Brush Road obtains signatures of the 3 Ridge Road Owners

06/20/2008 Brush Road informs Sal that the Brush Road Corporation has reached agreement where the State will pay $42,000 to help repair the road, in exchange for the signing of an Agreement and Release document. All of the Brush Road members and the Ridge Road owners have signed this, and we just need Sal's signature to get the money from the State.

06/29/2008 Letter from Brush Road to Sal, 1) pleading that he sign the agreement as he promised, 2) pleading that he contribute $1,500 to the repair, and 3) seeking to learn if there is some issue with the agreement causing him to refuse to sign as he promised

In a face to face meeting at the site, Sal outlines 4 conditions he requires for Brush Road to perform in order for him to sign the agreement and allow the repair to take place.

07/29/2008 Letter to Sal stating that Brush Road has completed his four conditions:

1) Plot out a drainage easement covering the land needed for the repair;

2) Brush Road Corporation get Liability Insurance;

3) Easements be prepared for the Ridge Road people you have just prescriptive easement over the culvert road;

4) Brush Road contractor get insurance for the repair;

08/01/2008 Letter to Sal asking him to please sign the agreement

08/03/2008 Letter to Sal pleading again that he sign the agreement, and reminding him that we agreed and implemented all of his conditions, and further reminding him that his payments of the Brush Road Dues are well overdue

08/07/2008 Letter from Sal's Attorney, Matthew Hurley, who states that Sal has engaged him to handle the matter for Sal going forward, and asking for background information.

08/08/2008 Letter from Brush to Matt Hurley, thanking him for his involvement, and supplying him preliminary background information.

08/11/2008 Follow up letter from Brush to Matt suppling additional backgroung data

08/12/2008 Letter from Matt to Brush asking for additional information, as his client had assumed the culvert was not on the client's property

08/12/2008 Letter from Brush to Matt answering his additional questions, and forwarding various pictures of the site

08/12/2008 Letter from Brush to Sal, thanking him for paying his past due balance

08/14/2008 Letter from Matt to Brush, thanking for all of the data and the pictures. Matt states he has been on the site numerous times, and certainly has noticed the drainage structure. He again asks if there has been a survey to determine if the structure is on his client's land, as well as a number of additional questions about other drainage culverts.

08/14/2008 Letter from Brush to Matt, assuring him that the State had shown us property corners that clearly show the culvert is on Sal's land. Futher Brush addresses his questions about other drainage

08/19/2008 Letter from Brush to Matt, stating that Brush feels it has answered all the questions, and fuly breifed Matt on the matter, and asking for his client's signature on the Agreement and Release so that work could begin before the winter rains

08/21/2008 Letter from MAtt to Brush threatening litigation, claiming that Brush Road has not shown him any indication that its members have the right to use Brush Road (despite the recorded bylaws attached to his client's parcel, and the Steinnbeck - Foster agreement, also attached to his client's property

08/21/2008 Letter from Brush to Matt, citing his client's title report, which show the Steinbeck - Foster agreement as item 5 and the bylaws of the Brush Road Associated as item 10. Brush further states it has not wish to litiget; it simply wishes to do its part to insure its members (including Sal's tenants) continue to have ingress and egress capability to their lands.

08/22/2008 Letter from Brush to Sal, asking him to bring some business sense to the matter.
The letter reminds him that his lawyer
1. questions whether the Brush Road members have a right to cross the culvert;
2. states he does not like the easement;
3. claims that other people broke the culvert, and they should fix it.
Brush states
1. that its members very clearly have ingress and egress rights, as shown in the public documents;
2. states that it is willing to eliminate the easement, and let Sal repair and maintain the structure, or work within a smaller easement, should Sal have one drawn up; and
3. reminds Sal that no one is asking him to contribute any mony towards a fix; that the State of California and Brush Road coporation have been offering since July, 2008 to perform the fix using their own money at no cost to him.

08/25/2008 Letter from Matt to Brush where he restates what Sal told him was the agreement worked out verbally between Sal and Brush Road corporation. Matt cites 5 points:
1. Sal would grant temporay permission for Brush contractors to enter his property and make a temporary repair;
2. Access is to just a reasonable area;
3. Workers will be licensed and insured;
4. Other culverts (which have been in place for more than thirty years, yet he asserts are new) will be removed from the property;
5. Easements will be negotiated later passing responsibility for future repairs and maintenance to Brush from Sal.

08/25/2008 Letter from Brush to Matt agreeing that indeed, a lot of progress was made in the on site discussion; however clarifing that
1. the company can not do work outside its easement, so needs the easement established first, and then work will begin; or is willing to refer the contractors Brush Road has identifed to Sal, and he can engage them, and after the work is completed, investigate transfering the completed structure to Brush Road for its future repair & maintenance; and
2. stating that the maintenance performed on the uphill culvert is not related to the failure, that the uphill culvert itself is not new, but further recognizing that this is a topic that will need deeper discussion, and suggesting fixing the failed culvert now, and talking about the uphill culvert later

08/28/2008 Letter from Brush to Matt, asking that he reply, and further sharing documents showing the context of the various easements (large and small) discussed during the month

08/29/2008 Letter from Matt to Brush expressing surprise that the Brush Road corporation would not be willing to do some temporary patch work outside its easement, and accusing us of bullying his client. The matter of the uphill drainage culvert is cited as a brand new non negotiable condition imposed by Sal.

08/29/2008 Letter from Brush to Matt outlining Brush's very practical considerations:
1. The State was the last to touch the structure, so doing a temporary fix would shift that responsibility on the party who is next to tocuh it
2. Contractors tell us the cheapest fix is the permanent fix, and there is still time to do this.
3. We have enough money to do the permanent fix, but not to do a temporary fix and then a later permanent fix.
4. The State has offered $42,000 to Brush Road if it takes over permanent management responsibility for the culvert, but this requires an easement for Brush Road to become that party.

09/30/2008 Brush Road's attorney contacts Sal's attorney via phone, and in the discussion suggests mediation as a way to resolve the matter. Matt agrees to contact his client to get his views on the suggestion.
12/19/2008 Letter from Brush Road Attonrey to Matt, wondering if his client has decided on whether he would agree to mediation, and reminding him that in the current budget crisis, the State's offer of $42,000 may disappear

12/29/2008 Sal's attorney states his client has no intention of working with us, he refuses mediation, he does not like the proposed fix, and he states that he believes we installed some new culvert higher up on Brush Road which caused the failure. (Editor's note - we have since reailzed that this culvert repair work was done 8 months AFTER the large culvert failed).
We again ask that if Sal feels our proposed fixes are inadequate, that he present alternative plans. We restate that there was no new culvert installed; instead as a part of our regular maintenance, we repaired the catch basin around a culvert higher up Brush Road; and thay this neither increased nor decreased the flow of water.

2009
Rainfall 77% of normal (June 1,2008 - May 30, 2009)

01/20/2009 Brush communicates to the State that Sal will not sign the agreement. The State examines the Steinbeck - Foster Agreement, and takes the position that this easement gives the holders the right and obligation to maintain the road, and that the easement is a part of the road, and so Brush (as the grantee of the easement) has the right to fix the culvert, and so drafts a new agreement between the State, The Brush Road corporation, and the three Ridge Road owners

02/20/2009 Brush and the State complete the negotiation on the language of the revised agreement; Brush calls for a Membership meeting to approve the revised agreement. Sal notifies us that his attorney plans to attend the meeting. We remind him that it is a member only meeting, but that we are happy to have our Board and its attorney meet with Sal and his attorney before the Membership meeting.

02/27/2009 Brush meets with Sal (and attorneys) on site. Sal demands that all culverts that drain any water onto his land from the road be removed, before he will allow any repair of the failed culverts. We remind him that these culverts have been on his land for at least thirty years; and he has only owned the land for 5 years. The culverts were there when he bought the land.
We also point out that all of the water draining from the road to his land, first drained from his land onto the road. We state that we will remove the culverts if he builds a curb that keeps all of the water originating from his land on his land (at which point it will enter the same ravine).
In order to end the debate, we offer to get a bid for installing a storm sewer system that will capture the water at the various uphill culverts, and keep the water in a pipe installed in the road, and convey the water to the location of the failed culvert's inlet (or perhaps outlet). After eaxmining the cost of such improvement to Sal's land, we would consider how to pay for it. (Editor - the contractor estimates comes out to about $120k with the cost for engineering and permits)

3/4/2009 Minutes of the Spring 2009 Members meeting. All attending the meeting vote in favor of Brush signing the agreement, and accepting the State's money.

03/17/2009 Letter where we summerize our discussion of 2/27, and correct some misunderstandings - Brush never committed to implement a storm sewer project; instead we committed to get a bid for such a project, and then discuss options for funding the improvement to Sal's property.

03/30/2009 We obtain a bid for $120,000k for installing the storm sewer. (this includes the estimation of the required permits and engineering studies for such new construction, which are estimated to be about $60k).
We get an alternative proposal to simply lay flexible plastic pipe done the ravine to hold the water collected by the culverts, and bury and hence anchor this pipe with drain rock. The drain rock will further serve to improve the stability of the ravine. The bid for this is $15,000.

05/15/2009 Minutes of the Membership meeting. Sal attends this meeting in person. We inform everyone that the check from the State has been received, and that construction season has now opened up again. Sal states his position that he requires us to alter the culverts further up on his land before he will allow us to repair the lower culvert. Sal claims he has not seen our proposals so we agree to meet him again and present them.

07/09/2009 Brush meets with Sal at one of his resturants in Palo Alto, and we discuss the culvert. We remind him of our proposed fixes, and state that we believe the members would likely vote to have Brush Road pay for the second fix (laying platic pipe in the ravine and covering it with drainrock) as a gesture to address his concerns, as the cost would be about $500 per parcel.
However, we feel that (in this economy, or any economy) our members would not be in favor of paying about $10,000 each to install a storm sewer in the road; as this is more than a gesture.

08/08/2009 Brush meets with Sal at the site and discusses the possible ways forward. The construction season is rapidly closing, and we risk the danger of another winter rains causing the feared complete collapse of the road. Sal reviews the state of the lower culvert, and his face shows that he sees that the risk has increased over the years.
He states that he does not want the platic pipe in the ravine; and instead he agrees that if Brush will install a curb to block of one culverts temporaily (the one at the top of the ravine), and further install curbing along the lower section of Brush Road to keep the water that would otherwise drain into that culvert on the road, so it would drain all the way down the road (hopefully not creating a hazard) and into the large culverts basin, that he will remove his objection to our repairing the lower culvert.
We agree to this in priciple, and offer to mark the location of the various curbing and have Sal come back and review this before we start work. We make the marks, but Sal is very busy and can not visit the site.

08/12/2009 Brush signs the contract with our contractor to begin work, with a start date of 8/17/2009, in anticipation that Sal will indeed find time to visit the site and approve their locations as we discussed.

08/13/2009 Brush sends notice to its members that work will begin on 8/17/2009, it will take about 3 weeks; the road will never be closed, and that all should drive carefully.

Index of agreements, easements, and other documents

Concerning the Repair of the Culvert

The final Agreement and Release as signed by the State, Ridge Road Owners and Brush Road Corporation (pdf).

Request for Proposals to repair the Culvert, in accordance with theAgreement and Release

Bid to repair the Culvert from Pete Messa & Sons, Inc.
Insurance for Culvert Repair from Pete Messa & Sons, Inc.(pdf)
Engineering study of the existing Drainage in the culvert watershed by Roy A. Nelson, CE.

Note that because this proposal is a repair of existing drainage, which does not change any drainage pattern, or have any negative effect on the flow of water or alter its quality, the County has signed off that no permits are required.

Concerning other drainage ameliorations

The current land owner is interested in the construction of alternate drainage structures along the road upstream but in the watershed of the culvert. We have recevied a Bid to realign some Drainage from Pete Messa & Sons, Inc. which proposes one such alternate which includes installing new catch basins and drain pipe along a portion of Brush Road to direct some surface water around its current and long time path to instead flow around the culvert and rejoin the flow further down the hill. The bid consists of approximately $41k to do the pipe work, and three options for resurfacing the road:

$13k to perform a simple patch along the path of the new pipes;
$25k to repave the entire lower section of the road with 2 inches of asphalt, or
$35k to repave the entire lower section of the road with 3 inches of asphalt.

One would need to contract for the $41k plus one of the repaving options.

We have been advised that because this proposal would alter the drainage pattern of storm water runoff from its existing path, approvals would be required a from number of State and County offices (including but not limited to US Fish and Game, The Department of Natural Resources, Santa Clara Water District, Santa Clara Building Department, as well as from the down hill property owner (The State of California)). Nearly all of these agencies would require a complete engineering study of the effects of this diversion, which would provide insurance against any issues that arise from such construction. We received a bid for such a study from Roy A Nelson, CE in the amount of $60k. In addition various permit fees and expert testimony fees would also be required.

As a result the minimum amount required to fund this proposal is about $120k.

Background material

Older proposals which are here just for reference

The Bottom Line

The State of California has offered to contribute half of the cost to fix the culvert, with the condition that the Brush Road Corporation take on the responsibilty & liability for maintaining the culvert for the rest of time.
The Brush Road Corporation has agreed to accept the maintainence obligation, and further to fund the balance of the construction cost.
The Brush Road Corporation needs a recorded easement from the landowner (Los Gatos Real, LLC) to permit the corporation to repair the culvert and maintain it for the rest of time, the borders of this easement roughly consisting of the small yellow box in the picture.
The landowner has not yet granted an easement; so far the progress has been limited to the series of email querys detailed below on the time line.

The Back and Forth

Below are a series of letters containing the back and forth conversation as we try to convince the landowner and his attorney to grant to the Road Corporation this easement. We remain hopeful that the landowner sees reason before the road collapses and/or one of our friends or neighbors is killed crashing into his canyon.

The parties communicating are:

Matthew Hurley ("Matt"), the legal representative for Los Gatos Real, LLC. Los Gatos Real, LLC owns the property where the culvert is located.
Salvatore Giovannotto ("Sal"), the owner of Los Gatos Real. LLC, which owns the land
Matthew L. Goetz P.L.S. ("State"), the Chief of Right of Way for District 4 of the California Department of Transportation
Michael McNamara ("Mac") the president of the Brush Road Corporation.

8/11/2008 Mac->Matt

12/19/2008 Mark->Matt

Subject: RE: Brush Road
From: <Michael McNamara>
Date: Mon, 11 Aug 2008 19:28:30 -0700
To: <Matthew Hurley (LGR Atty)>
CC: <Salvatore Giovannotto>, <Carrie Martin>, <Scott Landstrom>, <Kurt Anslinger>, <Mark Strombotne (BRC Atty)>

Please do not assume lack of data is any sort of delaying tactic! I have a full time job as a software executive, and am also husband and father to a high school student, and run a small ranch. Serving as part time President of the road company as an unpaid service to the neighborhood fits into the tiny cracks that remain of my time.

I sent to you what I had easily at hand.

I guess I naturally assumed that your client would share with you the many and various communications we have sent to him.

I was elected president of the road company in August of 2005, and I attach the annual letters we sent to all of the members, including your client in 2005, 2006 and 2007. This is typically sent with the bill for the membership dues. Sal or his staff received these and made the basic payments. Sal is a member of the brushroad yahoogroups mailing list, and gets all of these communications and updates.

I also forward the direct letter we sent specifically to Sal on 2 September 2007, informing him of the facts as we knew them at the time, and seeking his direct involvement to help. It would have been wonderful if he had involved you at that time; but we are where we are, now nearly twelve months later.

Since 2005, it has never been in question that the structure is on Sal's land. The question has been as to who built the structure.

As you can see from the title report on Sal's land (attached), the agreement about (presumably) the road and the drainage structure is shown as item 5 "The terms and provisions contained in the document entitled Agreement, executed by and between Fred Lewis Foster, recorded February 11, 1941 in Book 1028, Page 80 of Official Records." I sent you this agreement such as it is in my previous email.

I answer your other questions in line.
________________________________

From: <Matthew Hurley (LGR Atty)>
Sent: Monday, August 11, 2008 12:24 PM
To: <Michael McNamara>
Cc: <Salvatore Giovannotto>
Subject: Re: Brush Road
Mr. McNamara:
In response to your telephone call to my home on the morning of August 11, 2008, I hereby confirm receipt of your email and the attachment which was forwarded to my email mailbox on Friday, August 8, 2008. I have downloaded the attachment and it contained three files which are 1) an easement deed, 2) a quiet title judgement, and 3) a series of letters and other communication relative to the drainage culvert near Brush Road and the Highway 17 intersection.
I have reviewed what you sent, and it appears to me that most of that negotiation was continuing even after it was determined that the land in question is apparently owned by my client. My client indicates that his involvement has been pretty recent....which causes me to wonder why his involvement was delayed.

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We have been attempting to get Sal involved. See letter dated "2 September 2007" where we ask for his direct assistance. After sending him that letter I spoke with him on the phone and he said for us to do what we thought needed to be done, and let him know, that he is very busy with many other activities (as we all are), and can not be more involved.
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Likewise, there must have been a survey performed by one of the parties wherein the proper property corners were established as an update to the previously mistaken assumptions under which the State had historically acted. Do you have a copy of the survey or know where the survey documentation resides which supports this new "finding" by the State that it has historically acted as a "good neighbor" instead of as an obligor with respect to the culvert?

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When the State observed the failure, they went to the site with a GPS device, and determined that the failure was well outside of their jurisdiction. As you can see from the correspondence, we tried hard to establish that some part of it is on their land. Finally, we met personally with the Cal Trans Director of Rights of Way (who is also a certified surveyor) at the site in late April of this year, and he demonstrated where the corners of the property are. All that was in question at the time was whether there was any portion of the structure (say the last 5 feet of the pipe) which extends on to State lands. Unfortunately, there is not. We have asked for, and the state agrees in their assignment and release form (also attached) to place permanent property markers at the corners of their property, and road signs at the end of their road stating "Private Road, No Exit" to make this clear going forward.

We have also had a survey done (attached) which delineates the lands of the streambed which we are offering to serve as the party responsible for the necessary occasional maintenance so that it does not plug and flood the road.
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Lastly, do you have any evidence, whether recorded or otherwise, and for argument sake assuming that the culvert is, in fact, on my clients property, that my client or my client's predecessors were ever aware of a drainage problem which resulted in the need for the installation of the culvert by the State in the first place?

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The evidence is incontrovertible that the culvert is on your client's land. The structure is north of the first hairpin curve of the road, and the entire hairpin curve of the road, and the land to the south of the hairpin curve road is owned by your client.

The 2/11/1941 agreement (sent in the previous email) between Foster (then owner of your client's land) and Steinbeck (yes, this is the John Steinbeck) is the evidence that the road & culvert are on your client's property, and that the previous owner of your client's land was quite aware of, and permitted the construction and maintenance of the structure. History is otherwise quiet on the circumstances; we do not have as-builts, blueprints or name of contractor; and a reading of the Foster-Steinbeck Agreement document shows this agreement was an after the fact summation of rights and responsibilities, rather than a "let's plan and then build" agreement.

Some historical context, and total conjecture: The State built Highway 17 starting in 1938, and as one could imagine this opening up of a quality access route through the mountains caused many people to quickly do what made sense to re-align access routes to take advantage of the high quality road. However, the nation was deep into the depression, so few people had any money. So quite likely Steinbeck paid to have the road & culvert built to give everyone access to the new highway. In 1939-40 Steinbeck has an affair with the movie star Gwen Conger, and in the spring of 1941 John separates from his first wife, Carol Steinbeck, and that fall he moves to New York with Gwen. Carol divorces in March of 1942. So viewed from this perspective, in February of 1941, Steinbeck (or his agent) is cleaning up the title in anticipation of possible divorce, and establishing rights over the access route that in previous years he just paid for the building of (Steinbeck bought the Biddle Ranch, on Brush Road, in August of 1938).

The drainage "problem" was created by the constructing the new access road. The way they built the road was to construct dam across the streambed which, as you say, had existed for tens of thousands of years. When they built the road, they eliminated a drainage problem by at the same time building a drainage structure to capture the water which would have otherwise pooled up behind the road, and direct that water under the new road. That structure worked well from 1939 until 2005.

If you look at the Hw17AsBuilts (attached), you can see on what is the forth page of the PDF the right of ways they obtained, the proposed alignment of the new highway, and a proposed access road that would be built to give access to you client's property while construction was occurring, and as they eliminated the traditional access. Then you can see on the much busier sixth page of the PDF, that same drawing with the new Brush Road entry way drawn in. At the upper right hand corner the Ridge Road (which remains) and the old road which goes across the lands of Helen W. Hawkins (which was removed). The smooth dark curved line with the 1 2 3 4 on it is the center line of the new Highway 17. If you look at the area labeled William Logan, you see the area in question. This is the new Brush Road access, and the State bought from Logan the trapezoid shaped piece in 1942, which I believe you refer to as a land swap. Foster kept the portion that has the right hand curve, and then goes off of his land for the tightest hairpin left curve, and then the road comes back on to Foster's land (now owned by your client).

The failing structure is the box & dotted line that has the words "Mon. not set Rdwd Flume" next to it. As you can see this is clearly on your clients land, and was documented in 1939
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I see some casual references to a "land swap" at some point in the historical past, but see no documentation that verifies such a "land swap" actually occurred. Do you have anything along those lines?

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I will scan in and send you a copy of the William Logan to State Deed which covers the transfer of the trapezoid. As you will see, most of the concern is over retaining the oil rights to the land under the road; and now with gasoline at $4 per gallon (versus the $0.12 gas cost back then), perhaps we should be focusing on that !!!
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Obviously, anything and everything you have will be helpful to me. It is my understanding from my client that the State has made a firm offer of settlement coupled with cash consideration which you have not included in your correspondence. I asked for everything you had, but it seems we have started our conversation with a filtered set of documentation.......I hope this isn't an indication of things to come, as selective communication usually just slows down the process.

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Again, I would have hoped that your client would have provided this information to you. I have attached this as well
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In summary, there appears to be a process here that has gone on for over three years that did not include my client for a major portion of the discussions.

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This is not true.

Instead your client was always informed by the BRC on status, and he was also asked personally to participate directly in writting twelve months ago, and he declined to assist. The Brush Road Corporation is a very interested party in the continued existence of the Brush Road as it traverses the streambed, as our members depend upon the road for access to their properties. We have a recorded 20 foot wide easement to that road. We are willing to stand aside and observe as Sal repairs the threat that his drainage structure, which he obtained when he purchased this land, poses to the continued existence of the road. We would then hope he proceeds quickly, as a normal to wet winter could destroy the road. If he does not repair the structure, despite three years of notice, and its failure prevents access to these 30 parcels, one could be certain that his fellow members of the Brush Road Corporation would take action.

Conversely, we offer what we feel would be a much better solution, where he would join with these same neighbors, to effect a repair which would cost in aggregate about $100k, hence with $42k from the state, leaving the per parcel cost of just about $2,000. He would grant a drainage easement to the Road so that its agents would effect the occasional as needed timely cleanup and other maintenance of the streambed and replacement drainage structure so that future failures do not occur, or when and if such a failure does occur, our grantees don't need to spend three years in digging through papers to see who is responsible for such a repair.
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He has recently been asked (in rather strong language from my point of view) to provide easements and access to more than 20% of his parcel to solve a problem that he did not create without being given the essential information he will need to decide what his course of action should be.

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Sal's property (APN is 544-35-002, see attached land plat) is 14.94 acres in size. The drainage easement covers 2.05 acres, which is 13.7% of the parcel. This land has been streambed for tens of thousands of years, and will continue to be this for thousands of years after we are all gone; and with the current waterway laws there is nothing Sal would be allowed to do with this land. What we are asking for is a recorded easement so that if Brush Road hires contractors to clear brush or fix pipe, should these folks be injured or die, there would be no liability to your client.
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It appears to be presumed that the current configuration for the drainage culvert is the only viable method of controlling the water which has passed down that drainage area for hundreds of years and it suddenly has been assumed that my client is responsible, in some manner, for any and all damage that might result from losses to Brush Road, an ingress-egress easement that his predecessors in interest granted WITHOUT LIABILITY for any maintenance.

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You are correct, that this is the way the water flows. We hired a licensed hydrologist who researched the site and determined the flow of water over the land, the amount that might flow during the maximum flow over 100 years, and size the required pipes. His report was attached in my previous email, and we sent this to Sal in the September 2, 2007 letter.

As for the conditions of the grant for the ingress-egress easement, you are correct, that the easement covers just the 20 foot wide right of way, and there are no rights or responsibilities conveyed to the drainage structure which starts on your client's land, runs under the road, and continues back on to your clients land. You have my conjecture above as to what I postulate might have been the circumstances that lead to such a legal train wreck. Of course, this is not the first time we have had to clean up the paper work later. And, as you can for example in your clients title insurance document Exceptions from coverage, Schedule B Part 1 (attached): EXCEPTIONS FROM COVERAGE - Schedule B Part 1

This Policy does not insure against loss or damage (and the Company will not pay costs, attorneys' fees or expenses] which arise by reason of:
2. Any facts, rights, interests or claims which are not shown by the public records but which could be ascertained by an inspection of the land or which may be asserted by persons in procession thereof.
3. Easements, liens or encumbrances, or claims thereof, which are not shown by the public records.
4. Discrepancies, conflicts in boundary lines, shortage in area, encroachments, or any other facts which a correct survey would disclose, and which are not shown by the public records.

Even so, the above title exception does not apply - the Foster - Steinbeck agreement which describes the ingress-egress easement is listed in your client's title, and this 20 foot wide easement is actually listed twice; once in the first description, and then as Parcel Two. There is no easement or maintenance agreement recorded that covers the drainage structure. Perhaps there was an unrecorded agreement between Foster (or some later grantee) and the State Highway Association that covers the drainage structure. A diligent search of the Cal Trans (They took over the California Highway Authority) records did not reveal this; nor did the various title reports your client has obtained. So absent some recorded agreement showing someone else has responsibility for this structure, the responsibility falls to your client.
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These things can be complicated and they take time to correctly assess and resolve. You have had considerably more time on subject than my client. That does not change the fact that he is entitled to, and will take, adequate time to deal with your concerns. I suggest, as I did in my initial email, that any and ALL correspondence relative to this situation be forwarded to me at the address provided so that I might have the opportunity to assess my clients rights and responsibilities fully prior to advising him on what his next course of action should be. Otherwise, the process will begin with my contacting the State and commencing discussions with them relative hereto. Now THAT, I am certain you know, can be a long and frustrating process.....

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Again, We the members of the board of the Brush Road Corporation are absolutely thrilled that Sal has engaged your involvement to advance the process here. We have tried many times to get Sal to work with us. (Please do note that most road members don't spend anytime on these matters either; they are content to let the few do the work of the many; so Sal is no different. However, in this case since the structure is on his property, one might expect that he would be more motivated to get to a good conclusion).

I and my fellow Board members have spent many hours of unpaid time working on this matter, negotiating over the phone, via email, and meeting face to face with CalTrans people three times in their Oakland California offices, to try to get progress on this matter. We have worked with our State Senator, Able Maldonado, to successfully obtain his assistance in this matter multiple times, when CalTrans went radio silent. This process has gotten to a great point. We have gotten an amazing settlement from the State. Originally they were going to contribute $20k, we got them to up this contribution to $42k, and got this included in the allocation for the 2009 budget year; and as you can see from the Sacramento news stories, getting anything in this years budget is nearly impossible. As you well know, a law suit to get to a ruling on this matter would cost more than this, and we would not be able to prove culpability of the state, so we could not expect for those legal fees to be reimbursed if we prevailed. The total one time charge to Sal is around $2k to make this matter go away, and eliminate any liability to him for future issues with the road, or the water related to his land.

I personally hate it when someone tells me, "Don't worry, trust me, just sign." And here I am appearing to ask your client to do this very thing. This is not the case. We have shared with him all of the details. We asked for his direct involvement one year ago. He declined. He did not contribute to the funding for the project. We have gotten a good agreement without his help.

Now I am sharing these details with you, who is the guy brought in at the end, and the guy being asked to make a quick decision, while still absorbing the facts. Please take the time you need (but only this amount!) Please let me know anything else you need, and I will be happy to provide it if I have it. Your client and we do have a pressing need to get this fixed before the threat turns into a washed out road.

We have a contractor who is ready to go; we have been asking for him to slip out start date as Sal asks for additional data and meetings. The next current start date is August 15th. The total job will take about one week to complete. By California law, construction in the mountains must be completed by October 15th, so as to avoid the inevitable storms.
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Your complete cooperation in this regard will be appreciated.

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Indeed, and yours as well!
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Sincerely,
Matthew H. Hurley
Attorney for Los Gatos Real LLC
P.S. My home telephone number is probably not the best one to use for me. For now, telephone discussions are probably not productive. I find that a complete review of all pertinent documentation always puts things in a better perspective for fruitful conversation at a later date.

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Fine. Do please indicate that you've received this communication so that I know it has made it through the computer networks ( I know enough about computers and networks to not trust to correct and timely delivery!)

Michael McNamara