HomeMy WebLinkAboutA8932 - INDIGO 3735 E. PALM CANYON DR., LLCTEMPORARY CONSTRUCTION EASEMENT AGREEMENT
PROJECT: East Palm Canyon Drive Bridge over Palm Canyon Wash
CITY PROJECT NO: 12-04
FEDERAL PROJECT NO: BRLO-5282 (041)
APN: 681-070-037
TEMPORARY CONSUCTION EASE NT AGREEMENT, (the "Agreement"), is
made this day of I v 20-2nL by and between the
CITY OF PALM SPRINGS, a California cha er City and municipal corporation,
organized and existing in the County of Riverside, under and by virtue of the laws of
the State of California, hereinafter designated as the "City" and/or "Grantee", and
Indigo 3736 E. Palm Canyon Dr, LLC, a Delaware limited liability company,
hereinafter designated as the "Grantor". City/Grantee and Grantor are individually
referred to as "Party" and are collectively referred to as the "Parties".
RECITALS
A. Grantor is the owner of certain real property located in the City of Palm Springs,
(the "City"), the County of Riverside, (the "County"), State of California, (the
"State"), which is identified by Assessor Parcel Number 681-070-037,
(referred to as the "Property").
B. Grantee desires to obtain from Grantor a temporary construction easement (as
more particularly defined and described below, the "Temporary Construction
Easement") over a portion of the Property, and Grantor hereby agrees to
authorize Grantee and its assignees, officers, directors, employees, and
agents, including its contractor(s) and their respective successors and assigns
(all of whom, for purposes of this Agreement, shall be included in the defined
term "Grantee" or called a "Grantee Party"), to enter for a limited duration and
term subject to the conditions herein this Agreement, such portion of the
Property as described on the attached legal description, referenced as
g, and shown on the attached map, referenced as Exhibit "B". (the
"Easement Area"), which are attached hereto and incorporated herein by
reference.
C. The Parties desire by this Agreement to provide the terms and conditions for
the Temporary Construction Easement over the Easement Area.
AGREEMENT
NOW, THEREFORE, in consideration of performance by the Parties of the promises,
covenants, and conditions herein contained and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties agree as follows:
Grantor hereby grants to Grantee the right to enter upon and use Grantor's
Easement Area for the purposes of providing access to the sidewalk
improvement area on the adjacent real property to the west of the Easement
Area ("Temporary Construction Easement") associated with the East Palm
Canyon Drive Bridge over Palm Canyon Wash, City Project No. 12-04,
Federal Project BRLO-5282 (041) ("Project").
2. The Temporary Construction Easement, used during construction of the Project,
consists of approximately 94 square feet as described on the attached legal
description, referenced as Exhibit "A", and shown on the attached map,
referenced as Exhibit "B" (hereinafter the "Easement Area").
3. It is agreed and confirmed by the parties hereto that the right of possession and
use of the Easement Area by the Grantee, shall not include the right to remove
improvements, subject to paragraph 5, and shall commence on June 1, 2022 or
the close of escrow controlling this transaction, whichever occurs first (the
"Commencement Date"), and the amount shown in Section 14 herein includes,
but is not limited to, full payment for such possession and use. The Temporary
Construction Easement will expire on the date that is the earlier of (1) that date
which is five (5) years after the Commencement Date or (2) upon the City's
recordation of a Notice of Completion for the Project with the Riverside County
Recorder's Office, on which date the Temporary Construction Easement granted
herein shall be automatically surrendered by Grantee, and Grantee's interests
thereto shall be automatically reverted to Grantor as if quitclaimed by Grantee,
and shall no longer represent any title interest of or to Grantor's Property.
Nevertheless, if requested by Grantor following such termination, City will execute a
quitclaim deed confirming such termination.
4. The rights granted herein include the right to enter upon and to pass and repass
over and along the Easement Area (but in no event any other portion of the
Property without the consent of Grantor), and to deposit tools, implements and
other materials thereon by any Grantee Party engaged in the Project, wherever
and whenever necessary for the purpose of completing the Project in
accordance with applicable laws. Grantee, on behalf of all Grantee Parties,
agrees to use its best efforts not to damage Grantor's Property in the process of
performing such activities. At all times during the term of this Agreement (and
during construction of the Project), Grantor's Property will remain accessible for
Grantor's, and Grantor's members', employees', agents', representatives',
customers' and other invitees', ingress and egress and engagement in
commerce on the Property. Grantee acknowledges that the Property is operated
as a luxury motor vehicle dealership and agrees to use commercially reasonable
efforts to minimize the impacts of the Temporary Construction Easement on the
business, including without limitation, minimizing any obstruction of visibility of
signage and product, giving Grantor at least a week's notice prior to
commencement of the sidewalk construction activity, minimizing dust and debris
migrating to the business and settling on product, and diligently prosecuting the
sidewalk construction activity to completion.
5. At the termination of the period of use of Grantor's Easement Area by City, but
before its relinquishment to Grantor, debris generated by City's use will be
removed and the surface will be restored and left in a neat condition.
6. [Intentionally Omitted.]
7. Any notice to be given or other document or documents to be delivered to
either Party by the other hereunder may be delivered in person or may be
deposited in the United States Mail in the State of California, duly registered or
certified, with postage prepaid, and addressed as follows:
If to Grantee, to:
Attn: City Clerk
City of Palm Springs
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92262
Facsimile No.: (760) 322-8332
Telephone No.: (760) 323-8204
If to Grantor, to:
Indigo 3735 E. Palm Canyon Dr, LLC
13911 North FWY
Houston, TX 77090
Attn: Magnus Rayos — LEGAL NOTICE
With a copy to:
Indigo 2735 E. Palm Canyon Dr, LLC
3735 E Palm Canyon Dr
Palm Springs CA 92264
Attn: General Manager — LEGAL NOTICE
8. To the extent permitted by law, City (or its contractor; it being understood that
City will be primarily liable to Grantor for the obligations of this Section 8)
shall indemnify, defend andhold harmless Grantor from all losses, liabilities,
costs, damages, expenses, causes of action, suits, claims or judgments,
including attorney's fees and costs, (collectively, "Claims") arising directly out
of the use of the Easement Area by City, Grantee Parties, and/or the City's
employees, representatives, agents, suppliers or subcontractors, pursuant
to this Agreement or otherwise, provided, however, that the foregoing duty
to defend, indemnify and hold harmless the Grantor from and against any
Claims shall not apply to any Claims arising from the gross negligence or
intentional misconduct of Grantor. City's obligations pursuant to this Section
8 cannot be assigned and shall cease upon the expiration or termination of
the Temporary Construction Easement or this Agreement, whichever occurs
first.
9. Grantor hereby warrants that it is the owner of the Property described above and
that it has the right to grant to Grantee the Temporary Construction
Easement.
10. This Agreement is the result of negotiations between the Parties hereto. This
Agreement is intended by the Parties as a final expression of their
understanding with respect to the matters herein, and, together with the
Temporary Construction Easement of even date herewith made by the
parties hereto and to be recorded in the Official Records of Riverside County,
California, is a complete and exclusive statement of the terms and conditions
thereof.
11. This Agreement shall not be changed, modified, or amended except upon
thewritten consent of the Parties hereto.
12. This Agreement supersedes any and all other prior agreements or
understandings, oral or written, in connection therewith.
13. Grantor, its assigns and successors in interest, shall be bound by all the
terms and conditions contained in this Agreement, and all such persons or
entities shall bejointly and severally liable thereunder in accordance with Civil
Code Section 1468.
14. City shall pay to Grantor the total sum of Two Thousand dollars and no
cents ($2,000.00), (the "Rental Price"), for the right to enter upon and use
the Easement Area in accordance with the terms hereof, and reimbursement
of reasonable and actual attorney's fees and costs incurred by Grantor for
reviewing, revising and negotiating the terms of this Agreement, not the
exceed One Thousand Five Hundred Dollars and no cents ($1,500.00).
There are no improvements within the Easement Area that need to be
removed by Grantee. So long as Grantee is not in breach with any of the
provisions of this Agreement, including without limitation Sections 5 and 8
above, Grantor hereby expressly and unconditionally waives any and all
claims for damages, relocation assistance benefits, severance damages,
interest, loss of goodwill, claims for inverse condemnation or unreasonable
pre -condemnation conduct, or any other compensation or benefits, other
than for payment of the Rental Price. Payment shall be made within thirty (30)
days after execution of this Agreement.
Grantor hereby acknowledges that it has been advised by its attorney and is
familiar with the provisions of California Civil Code section 1542, which
provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE
CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE
RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE
MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR
OR RELEASED PARTY "
By signing below, Grantor acknowledges that it may have sustained damage,
loss, costs or expenses which are presently unknown and unsuspected, and
such damage, loss, costs or expenses which may have been sustained, may
give rise to additional damage, loss, costs or expenses in the future.
Nevertheless, subject to the first paragraph of this Section 14 and Section 8
above, Grantor (a) hereby acknowledges that this Agreement has been
negotiated and agreed upon in light of that situation, and (b) hereby expressly
waives any and all rights which it may have under California Civil Code
section 1542, or under any statute or common law or equitable principal of
similar effect, except as set forth in this Section 14.
15. The parties to this contract shall, pursuant to Section 21.7(a) of Title 49, Code of
Federal Regulations, comply with all elements of Title VI of the Civil Rights Act
of 1964. This requirement under Title VI and the Code of Federal Regulations is
to complete the USDOT-Non-Discrimination Assurance requiring compliance
with Title VI of the Civil Rights Act of 164, 49 C.F.R Section50.3.
16. No person in the United States shall, on the grounds of race, color, or national
origin, be excluded from participation in, be denied the benefits of, or be
otherwise subjected to discrimination under any program or activity that is the
subject of this contract.
17. City acknowledges and agrees that neither Grantor's execution and entry into
this Agreement nor the removal of the Easement Area from Grantor's use nor
Grantee's or any Grantee Parry's use of the Easement Area, shall cause any
violation of any federal, state or municipal law, rule, regulation or code. City shall
be solely responsible for ensuring that all requisite permits, licenses and
approvals, whether governmental or non -governmental, pertaining to the use of
the Easement Area are timely obtained and maintained.
18. Notwithstanding anything to the contrary in this Agreement, City shall not assign
this Agreement without the express consent of Grantor.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and
yearfirst above written.
GRANTEE:
CITY OF PALM SPRINGS, a California
charter city and municipal corporation
By: _
W s+•.— C► .'V-4 0.,)CVy Manager
A Brp�Y� w
t A8
ATTEST -
APPROVED AS TO FORM:
By: :..
Jeffre S. Balli er, City Attorney
Exhibit List
GRANTOR:
Indigo 3735 E. Palm Canyon Dr, LLC,
a Delaware limited liability company
By: Ae 0'0-r
Name: /'Se,6eecc. /Vo�o/e Jones
Its: Seere�G��
Exhibit A - Legal Description of the Easement Area
Exhibit B - Description of the Easement Area
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of :12 aS
County of C r }
On 1L4 before me, lo, e T e 66rt I S k, } ►aka r
(insert name and title of the officer)personally appeared Qk C-C.Co'- AoWt
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
certify under PENALTY OF PERJURY under the laws of the State identified herein, that the foregoing
paragraph is true and correct.
WITNESS m ha and official seal. ENV
s JEANE1iEFARRY My NoWy ID 8125341735
Eon September 11. 2022
Signature (Seal)
Exhibit "A"
LEGAL DESCRIPTION OF THE EASEMENT AREA
EXHIBIT "A"
TEMPORARY CONSTRUCTION EASEMENT
APN: 681-070-037
LEGAL DESCRIPTION
All that portion of the west one-half of the southeast one quarter of the northwest one quarter of
Section 30, Township 4 South, Range 5 East, San Bernardino Base and Meridian, City of Palm Springs,
County of Riverside, State of California, and being more particularly described by metes and bounds as
follows:
Commencing at the northwest corner of that tract of land which was conveyed to INDIGO 3735 E
PALM CANYON DR, LLC, a Deleware limited liability company by QUITCLAIM DEED recorded
October 8th, 2019 in the Office of the Recorder of Riverside County as Document # 2019-0404385, said
point being the True Point of Beginning;
Thence from said True Point of Beginning S72°46'41"E 9.93' along the north line of said parcel;
Thence departing from said north line S00°05'59"W 9.93%
Thence N72°46'41 "W 9.93' to a point on the west line of said parcel;
Thence N00105'59"E 9.93' along the west line of said parcel to the True Point of Beginning.
Containing 94 square feet more or less.
All as shown on EXHIBIT "B" attached hereto and by this reference made a part hereof.
Bearings used herein are based on the west line of Document #2019-0404385 filed in the Office of the
County Recorder of Riverside County. (ie N00°05'59"E)
Prepared by me or under my direction.
4!�, 1-ej lzar-�_ r
TERR LETCHER LS 5834 DATE
Exhibit "B"
DEPICTION OF THE EASEMENT AREA
EXHIBIT "B"
TEMPORARY CONSTRUCTION EASEMENT
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0 DIMENSION POINT
T.P.O.B. TRUE POINT OF BEGINNING 1" — 100,
BASIS OF BEARINGS: West line of Parcel described In Document # 2019-0404385 filed In
the Office of the County Recorder of Riverside County, State of California.(ie NOO'05'59"E)
MEoKKEN TEMPORARY CONSTRUCTION EASEMEW DATE: , 1 21CI OF PALM SPRINGS110 BLUE AVINE ROAD, Sum zoo ~ COUNTY OF RIVERSIDE APN: 881-070-037
F01-MM, CA 95830 STATE OF CALIFORNIA DE NO.----
(918)858-0842 CHECKED BY: PREPARED BY. TF SHEET 1 OF 1
OWNER: INDIGO 3735 E PALM CANYON DR LC. a Delaware limited liobilit company
a\W—\WVN)-"Wn PLATU"
City of Palm Springs
Office of the City Clerk
3200 E. Tahquitz Canyon Way • Palm Springs, California 92262
Tel: 760,323.8204 • Fax.. 760.322.8332 • TDD 760.864.9527 • www.paimspringsca.gov
CERTIFICATE OF ACCEPTANCE
THIS IS TO CERTIFY that the interest in real property conveyed by
TEMPORARY CONSTRUCTION EASEMENT
Dated: z e .. 4 i, 2.L-'2 1
From:
Indigo 3735 E. Palm Canyon Dr, LLC, a Delaware limited liability company
Grantor, to the City of Palm Springs, a municipal corporation and charter city, Grantee, is
hereby accepted by the City Clerk of said City of Palm Springs, on this I Cj 4" day of
2021, pursuant to authority granted by the City Council of said City,
by Resolution No. 20255 made on the 161h day of January, 2002, and the Grantee
consents to recordation thereof by the City Clerk, its duly authorized officer.
Dated at Palm Springs, California, this l day of O c-60a , 2021.
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THONY M
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City Clerk