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HomeMy WebLinkAboutA6839 - 4348 LOCKWOOD AVENUE LLC - RIGHT OF WAYProject: South Palm Canyon Drive Drainage Improvement Project Project No.: Federal Project No.BR-NBIL (502), City Project No. 06-18 APN: 513-460-033 RIGHT-OF-WAY AGREEMENT FOR ACQUISITION OF FLOOD CONTROL AND DRAINAGE EASEMENT THIS AGREEMENT FOR ACQUISITION OF A FLOOD CONTROL AND DRAINAGE EASEMENT, ("Agreement"), dated and entered into for solely for reference purposes as of , 2016, by and between the CITY OF PALM SPRINGS, a California charter city and municipal corporation ("City") and 4348 Lockwood Avenue, LLC, a California Limited Liability Company, as to an undivided twenty-six percent interest (26%) interest, Michael L. Cole and Janet K, Cole, husband and wife as joint tenants, as to an undivided four percent (4%) interest, and Jogesh Kumar Vashisht and Sunita Kumar Vashisht, Trustees for the Vashisht Family Revocable Trust Dated May 2, 2001 and Restated May 4, 2010, as to an undivided seventy percent (70%) interest, all as tenants in common (collectively, "Owner"), with reference to the following facts: RECITALS A. Owner is the owner of certain real property designated as Assessor's Parcel No. 513-460-033, (the "Property"), located in the City of Palm Springs (the "City"), the County of Riverside (the "County"), State of California (the "State"). B. City desires to acquire a portion of Owner's Property as an exclusive flood control and drainage easement, (the "Easement"), to facilitate construction of the South Palm Canyon Drive Drainage Improvement Project, Federal Project No.BR-NBIL (502), City Project No. 06-18, (the "Project"); the Easement is more particularly described on Exhibit A and shown on Exhibit B attached hereto, (the "Easement Area"). C. Owner voluntarily waives its right to payment of the fair market value as compensation for the City's acquisition from Owner of the Easement Area, and agrees to donate to City and City desires to accept from Owner the Easement over the Easement Area as necessary to construct the Project, in accordance with the terms and conditions contained in this Agreement. NOW, THEREFORE, for and in consideration of the mutual covenants and agreements contained in this Agreement, and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged by Owner, City and Owner (hereinafter collectively referred to as the "Parties", or individually as a "Party") hereby agree as follows: AGREEMENT CONVEYANCE OF EASEMENT. 1.1. Agreement to Donate. Subject to the terms and conditions set forth herein, Owner hereby agrees to convey to City, and City hereby agrees to acquire from Owner, the Easement being over, upon, under, across, and within the entirety of the Easement Area as such area, scope and use is more particularly described in the Grant of Easement Deed, (attached hereto as Exhibit C), which Exhibits A and B attached thereto define the Easement Area, and shall be made a part thereof. 1.2. Purchase Price. The purchase price ("Purchase Price") for the Easement shall be Zero Dollars ($0). Owner hereby acknowledges that City has previously submitted an offer to Owner to acquire the Easement over the Easement Area in an amount equal to City's determination of the fair market value of Two Hundred Fifty Thousand Dollars ($250,000) in accordance with applicable state and federal law, and Owner hereby agrees to waive its rights to compensation for the City's acquisition of the Easement over the Easement Area from the Owner. 2. ESCROW AND CLOSING. 2.1. Opening of Escrow. Within fourteen (14) business days after execution of this Agreement by the City, City shall open an escrow (the "Escrow") with Stewart Title of California, at the address set forth in Section 7.12 ("Escrow Holder"), by depositing with Escrow Holder this Agreement fully executed, or executed counterparts hereof. The date this fully executed Agreement is signed and accepted by Escrow Holder on the last page hereof shall be deemed the "Opening of Escrow" and Escrow Holder shall advise City and Owner of such date in writing. The escrow instructions shall incorporate this Agreement as part thereof and shall contain such other standard and usual provisions as may be required by Escrow Holder, provided, however, that no escrow instructions shall modify or amend any provision of this Agreement, unless expressly set forth in writing by mutual consent of City and Owner. In the event there is a conflict between any such standard or usual provisions and the provisions of this Agreement, the provisions of this Agreement shall control. 2.2. Escrow Fees and Other Charges. At the Close of Escrow, City agrees to pay all of Owner's and City's usual fees, charges and costs incidental to the conveyance of the Easement and Close of Escrow that may arise in this Escrow, including, but not limited to, any costs for the Standard Coverage Policy (defined below) or if elected, an CLTA Extended Coverage Owner's Policy. 2.3. Closing Date; Conditions Precedent to Close of Escrow. Provided all of the conditions set forth in this Section 2.3 have been satisfied (or are in a position to be satisfied concurrently with the Close of Escrow), the Close of Escrow shall occur on or before April 30, 2016, (the "Closing Date"). As used in this Agreement, the "Close of Escrow" shall mean the date a Grant of Easement Deed, as provided in Section 2.4.2(a) hereof, is recorded in the Official Records of the County. 2 2.3.1 Conditions of City for Close of Escrow. The Close of Escrow and Owner's obligation to convey the Easement are subject to the satisfaction of the following conditions or City's written waiver of such conditions, on or before the Closing Date. City may waive in writing any or all of such conditions in its sole and absolute discretion. (a) Owner shall have performed all obligations to be performed by Owner pursuant to this Agreement; (b) No event or circumstance shall have occurred, which, in the sole opinion of City, would make any of Owner's representations, warranties and covenants set forth herein untrue as of the Close of Escrow, including, but not limited to, those warranties and representations of Owner set forth in Sections 3.4 and 4.1 of this Agreement; (c) There shall have occurred no material adverse change in the physical condition of the Easement Area (such as those caused by natural disasters), which, in the sole opinion of City, would render the Easement Area unsuitable for City's intended use, materially increase the cost, or cause a material delay in the schedule for construction of the Project; (d) The Title Company shall be committed to issue to City, as of the Closing Date, the Title Policy (defined below) covering the Easement Area, subject only to the Permitted Exceptions; and (e) Owner shall have caused any lien or charge of any deed of trust that encumbers the Easement Area to be subordinated to the rights of City under the terms of the Easement. 2.3.2 Conditions of Owner for Close of Escrow. The Close of Escrow and Owner's obligation to sell and convey the Easement are subject to the satisfaction of the following conditions or Owner's written waiver of such conditions on or before the Closing Date. Owner may waive in writing any or all of such conditions as a condition to the Close of Escrow in its sole and absolute discretion. (a) City shall have performed all obligations to be performed by City pursuant to this Agreement; and (b) No event or circumstance shall have occurred which would make any of City's representations, warranties, and covenants set forth herein untrue as of the Close of Escrow including, but not limited to, those warranties and representations of City set forth in Section 4.2 of this Agreement. 2.3.3 Waiver of a Condition Does Not Excuse Performance. If any condition precedent to the Close of Escrow is expressly waived, in writing, as a condition to the Close of Escrow by the party for whose benefit such condition exists, then, to the extent such condition is capable of being satisfied following the Close of Escrow, such condition shall become a condition subsequent to the Close of Escrow and shall be satisfied by the party whose performance is required to satisfy such condition as soon as reasonably possible following the Close of Escrow. 3 2.4. Closing Funds and Documents. The parties shall deposit the following with Escrow Holder prior to the Close of Escrow: 2.4.1 City's Deposits. City shall deposit: (a) City's escrow and other cash charges; and (b) A Certificate of Acceptance for the Grant of Easement Deed executed by the City Clerk of the City of Palm Springs (See, Exhibit C). 2.4.2 Owner's Deposits. Owner shall deposit: (a) The Grant of Easement Deed in the form of Exhibit C attached hereto, appropriately executed to convey the Easement subject only to the Permitted Exceptions (defined below). 2.4.3 Deposits of Additional Instruments. Owner and City shall each deposit such other instruments as are reasonably required by Escrow Holder or otherwise required to proceed to the Close of Escrow and consummate the grant of the Easement in accordance with the terms of this Agreement. 2.5. Closing. 2.5.1 Necessary Actions of Escrow Holder. On the Close of Escrow, Escrow Holder shall in the following order: (i) record the Grant of Easement Deed and Certificate of Acceptance in the Office of the County Recorder of the County; (ii) pay any transfer taxes; (iii) instruct the County Recorder to return the Grant of Easement Deed to City; (iv) distribute to Owner the Purchase Price; and (v) deliver to City the Title Policy covering the Easement Area subject only to the Permitted Exceptions, if any. 2.5.2 Real Estate Taxes. Owner will be responsible for any reduction or may seek reimbursement from the Riverside County Tax Assessor's office for any property taxes that have been assessed for a period after the Close of Escrow. City further agrees to cooperate with Owner to provide any necessary information to the Assessor's office in connection with such request for refund. 2.6. Failure to Close: Termination. 2.6.1 Neither Party in Default. In the event that any condition set forth in Section 2.3 (and its subdivisions) is not satisfied or waived, in writing, and the Close of Escrow does not occur within the time required herein due to the failure of such condition or the Close of Escrow does not occur within the time frame required herein for any reason, with or without fault of Owner or City, this Agreement is terminated; Escrow Holder, with no further instructions from the parties hereto, shall return to the depositor thereof any funds, or other materials previously delivered to Escrow Holder, the Escrow shall be automatically terminated and of no force and effect; City shall pay any Escrow termination fees; and except as otherwise provided herein the parties will have no further obligation to one another. n 3. ACTIONS PENDING CLOSING. 3.1. Title Review. 3.1.1 Title Report. Within five (5) business days after the Opening of Escrow, Stewart Title of California (the "Title Company") will furnish City with an updated Title Commitment on the Easement Area together with legible copies of all documents referenced therein as exceptions to title and a plot plan for the Easement Area showing all the locations of all easements referenced therein (collectively, the "Title Commitment"). 3.1.2 Title Notices. City shall have ten (10) business days after its actual receipt of the Title Commitment to deliver to Escrow Holder written notice (the "Preliminary Title Notice") of City's approval, conditional approval, or disapproval of the title exceptions and other matters disclosed in the Title Commitment. All title exceptions not timely approved by City will be deemed disapproved. All such exceptions and other matters disapproved by City are referred to herein as "Disapproved Exceptions". It shall be the sole responsibility of City to remove any Disapproved Exceptions. 3.1.3 Permitted Exceptions. "Permitted Exceptions" shall mean all exceptions appearing on the Title Commitment which are: (i) standard printed exceptions in the Title Policy issued by Title Company; (ii) general and special real property taxes and assessments, a lien not yet due and payable; and (iii) any other liens, easements, encumbrances, covenants, conditions and restrictions of record approved, or expressly waived by City pursuant to this Section 3.1. 3.2. Title Policy. City's obligation to proceed to the Close of Escrow shall be conditioned upon the commitment by Title Company to issue an ALTA Standard Coverage Owner's Policy of Title Insurance (the "Standard Coverage Policy"), showing title to the Easement Area vested in City with liability equal to the Purchase Price, subject only to the Permitted Exceptions. At City's option, City may require an CLTA Extended Coverage Owner's Policy instead of the Standard Coverage Policy provided that City pays any additional premium on account thereof. The form of title policy selected by City shall be referred to herein as the "Title Policy". 3.3. Immediate Possession and Use. It is mutually understood and agreed by and between the parties hereto that the right of exclusive possession and use of the Easement Area and Easement by the City, including the right to remove and dispose of improvements, shall commence upon the execution of this Agreement by Owner. 3.4. Owner's Covenant Not to Further Encumber the Easement Area. Owner shall not, directly or indirectly, alienate, encumber, transfer, option, lease, assign, sell, transfer or convey its interest or any portion of its interest in the Easement Area, or enter into any agreement to do so, prior to the close of escrow, and will immediately notify City if any of these actions are taken. Owner shall discharge and remove, prior to the Closing, any and all liens and other obligations relating to work performed on, conducted at, or materials delivered to the Easement Area by Owner, or at Owner's direction or on its behalf, in order to preclude the filing of any claim or mechanic's lien with respect to such work or materials. 5 4. REPRESENTATIONS, WARRANTIES AND COVENANTS. 4.1. Owner's Representations, Warranties and Covenants. In addition to the representations, warranties, and covenants of Owner contained in other sections of this Agreement, Owner hereby represents, warrants and covenants to City as follows, all of which shall survive the Close of Escrow: 4.1.1 Owner's Authority. Owner has the capacity and full power and authority to enter into and carry out the agreements contained in, and the transactions contemplated by, this Agreement, and that this Agreement has been duly authorized and executed by Owner, and upon delivery to and execution by City, shall be a valid and binding agreement of Owner. 4.1.2 Leases. There are no leases, rental agreements, or other such contracts of any kind or nature affecting possession or occupancy of the Easement Area, and Owner shall not enter into any such contracts during the terms of this Agreement without the prior consent of City. 4.1.3 No Liens and Subordination. Owner warrants that at the time of the Close of Escrow, Owner shall have caused any lien and charge of any deed of trust that encumbers the Easement Area to be subordinated to the rights of City under the terms of the Easement. 4.1.4 No Untrue Statements or Omissions of Fact. Each of the representations and warranties made by Owner in this Agreement, or in any exhibit, or on any document or instrument delivered pursuant hereto shall be continuing representations and warranties which shall be true and correct in all material respects on the date hereof, and shall be deemed to be made again as of the Close of Escrow and shall then be true and correct in all material respects. The truth and accuracy of each of the representations and warranties, and the performance of all covenants of Owner contained in this Agreement, are conditions precedent to the Close of Escrow. Owner shall immediately notify City of any fact or circumstance which becomes known to Owner which would make any of the representations or warranties in this Agreement untrue. 4.2. City's Representations and Warranties. City represents and warrants to Owner as follows, all of which shall survive the Close of Escrow: 4.2.1 City's Authority. City has the capacity and full power and authority to enter into and carry out the agreements contained in, and the transactions contemplated by, this Agreement, and that this Agreement has been duly authorized and executed by City and, upon delivery to and execution by Owner, shall be a valid and binding Agreement of City. 4.2.2 No Untrue Statements or Omissions of Fact. Each of the representations and warranties made by City in this Agreement, or in any exhibit or on any document or instrument delivered pursuant hereto, shall be continuing representations and warranties which shall be true and correct in all material respects on the date hereof, and shall be deemed to be made again as of the Close of Escrow, and shall then be true and correct in all material respects. The truth and accuracy of 0 each of the representations and warranties, and the performance of all covenants of City contained in this Agreement, are conditions precedent to the Close of Escrow. City shall notify Owner immediately of any facts or circumstances which are contrary to the representations and warranties contained in this Agreement. 4.3. Mutual Indemnity. Owner and City shall defend, indemnify, and hold free and harmless the other from and against any losses, damages, costs and expenses (including attorneys' fees) resulting from any inaccuracy in or breach of any representation or warranty of the indemnifying party or any breach or default by such indemnifying party under any of such indemnifying party's covenants or agreements contained in this Agreement and the City further agrees to indemnify and hold harmless Grantor from any liability arising out of City's operations under this Agreement and agrees to assume responsibility for any damages proximately caused by reason of City's operations under this Agreement and City will, at its option, either repair or pay for such damage. The Grantor shall be named as an additional insured under the Grantee or its contractor's liability insurance. 5. CONDEMNATION. Owner and City acknowledge that this transaction is a negotiated settlement in lieu of condemnation, and Owner hereby agrees and consents to the dismissal or abandonment of any eminent domain action in the Superior Court of the State of California in and for the City of Palm Springs, wherein the herein described Easement Area or Easement is included, in whole or in part, and also waives any and all claims to any money on deposit in the action and further waives all attorneys' fees, costs, disbursements, and expenses incurred in connection therewith. If, prior to the close of the execution of this transaction, Owner is served with a Summons and Complaint in Eminent Domain in which Owner is a named defendant, upon the Close of Escrow, Owner agrees and consents to City taking a default in the action. Moreover, the consideration set forth in this Agreement provides for the acquisition from Owner of the Easement over the Easement Area, and any rights which exist or may arise out of the acquisition of the Easement for public purposes, including without limitation, Owner's interest in the land and any improvements located thereon, improvements pertaining to the realty (if any), severance damages, any alleged pre -condemnation damages, loss of business goodwill (if any), costs, interest, attorney's fees, and any claim whatsoever of Owner which might arise out of or relate in any respect to the acquisition of the Easement over the Easement Area by the City. 6. BROKERS. Owner and City each represents and warrants to the other that they have not dealt with or been represented by any brokers or finders in connection with the conveyance of the Easement and that no commissions or finder's fees are payable in connection with this transaction. City and Owner each agree to indemnify and hold harmless the other against any loss, liability, damage, cost, claim or expense (including reasonable attorneys' fees) incurred by reason of breach of the foregoing representation by the indemnifying party. Notwithstanding anything to the contrary contained herein, the representations, warranties, indemnities and agreements contained in this Section 6 shall survive the Close of Escrow or earlier termination of this Agreement. 7 7. GENERAL PROVISIONS. 7.1. Counterparts; Facsimile Signatures. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which, taken together, shall constitute one and the same instrument and any executed counterpart may be delivered by facsimile transmission with the same effect as if an originally executed counterpart had been delivered. 7.2. Further Assurances. Each of the parties agree to execute and deliver such other instruments and perform such acts, in addition to the matters herein specified, as may be appropriate or necessary to effectuate the agreements of the parties, whether the same occurs before or after the Close of Escrow. 7.3. Entire Agreement. This Agreement, together with all exhibits hereto and documents referred to herein, if any, constitute the entire agreement among the parties hereto with respect to the subject matter hereof, and supersede all prior understandings or agreements. This Agreement may be modified only by a writing signed by both parties. All exhibits to which reference is made in this Agreement are deemed incorporated in this Agreement whether or not actually attached. 7.4. Headings. Headings used in this Agreement are for convenience of reference only and are not intended to govern, limit, or aide in the construction of any term or provision hereof. 7.5. Choice of Law. This Agreement and each and every related document are to be governed by, and construed in accordance with, the laws of the State of California. 7.6. Severability. If any term, covenant, condition or provision of this Agreement, or the application thereof to any person or circumstance, shall to any extent be held by a court of competent jurisdiction or rendered by the adoption of a statute by the State of California or the United States invalid, void or unenforceable, the remainder of the terms, covenants, conditions or provisions of this Agreement, or the application thereof to any person or circumstance, shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby; provided that the invalidity or unenforceability of such provision does not materially adversely affect the benefits accruing to, or the obligations imposed upon, any party hereunder, and the parties agree to substitute for the invalid or unenforceable provision a valid and enforceable provision that most closely approximates the intent and economic effect of the invalid or unenforceable provision. 7.7. Waiver of Covenants, Conditions or Remedies. The waiver by one party of the performance of any covenant, condition or promise, or of the time for performing any act, under this Agreement shall not invalidate this Agreement nor shall it be considered a waiver by such party of any other covenant, condition or promise, or of the time for performing any other act required, under this Agreement. The exercise of any remedy provided in this Agreement shall not be a waiver of any other remedy provided by law, and the provisions of this Agreement for any remedy shall not exclude any other remedies unless they are expressly excluded. M 7.8. Legal Advice and Construction. Each party has the option to obtain independent legal advice from its attorneys with respect to the advisability of executing this Agreement and the meaning of the provisions hereof. The provisions of this Agreement shall be construed as to the fair meaning and not for or against any party based upon any attribution of such party as the sole source of the language in question. There shall be no presumption in the interpretation of this Agreement that any ambiguity is to be resolved against any party hereto. ." 7.9. Relationship of Parties. The parties agree that their relationship is that of Owner and City, and that nothing contained herein shall constitute either party, the agent or legal representative of the other for any purpose whatsoever, nor shall this Agreement be deemed to create any form of business organization between the parties hereto, nor is either party granted the right or authority to assume or create any obligation or responsibility on behalf of the other party, nor shall either party be in any way liable for any debt of the other. 7.10. Assignment. Neither Owner nor City shall assign its rights or delegate its obligations hereunder without the prior written consent of the other, which consent shall not be unreasonably withheld or delayed. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the successors and permitted assigns of the parties to this Agreement. 7.11. Notices. No notice, request, demand, instruction, or other document to be given hereunder to any Party shall be effective for any purpose unless personally delivered to the person at the appropriate address set forth below (in which event such notice shall be deemed effective only upon such delivery), delivered by air courier next - day delivery (e.g. Fed Ex), delivered by mail, sent by registered or certified mail, return receipt requested, or sent via telecopier, as follows: If to City, to: City Manager & City Clerk City of Palm Springs 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 Facsimile No.: (760) 323-8204 Telephone No.: (760) 323-8332 With a copy to: City Attorney c/o Woodruff, Spradlin & Smart 555 Anton Boulevard, Suite 1200 Costa Mesa, CA 92626 Facsimile No.: (714) 835-7787 Telephone No.: (714) 558-7000 If to Owner, to: Michael Cole 1438 Dorothea Road La Habra Heights, CA 90631 Telephone No.: (562) 882-2389 E If to Escrow Holder, to: Kaz Bernath Stewart Title of California 11870 Pierce Street, Suite 100 Riverside, CA 92506 Facsimile No.: (951) 276-2700 Telephone No.: (951) 276-3466 Notices delivered by air courier shall be deemed to have been given the next business day after deposit with the courier and notices mailed shall be deemed to have been given on the second business day following deposit of same in any United States Post Office mailbox in the state to which the notice is addressed or on the third business day following deposit in any such post office box other than in the state to which the notice is addressed, postage prepaid, addressed as set forth above. Notices sent via telecopy shall be deemed delivered the same business day transmitted if done so before 4:00 p.m., otherwise delivery shall be considered to be on the next business day. The addresses, addressees, and telecopy numbers for the purpose of this Paragraph, may be changed by giving written notice of such change in the manner herein provided for giving notice. Unless and until such written notice of change is received, the last address, addressee, and telecopy number stated by written notice, or provided herein if no such written notice of change has been received, shall be deemed to continue in effect for all purposes hereunder. 7.12. Survivability. All covenants of City or Owner which are intended hereunder to be performed in whole or in part after Close of Escrow and all representations, warranties, and indemnities by either Party to the other, shall survive Close of Escrow and delivery of the Grant of Easement Deed, and be binding upon and inure to the benefit of the respective Parties. 7.13. City Reconveyance (Quitclaim) of Easement to Owner: It is understood by the Parties that conveyance of the Easement is to facilitate, at City's sole cost and expense, construction of the Project that includes certain flood control and drainage improvements, (the "Drainage Improvements"), over, under, and within the Easement Area, which shall permanently remain within the Easement Area unless otherwise replaced as generally described herein this Section 7.13. During such time as the Drainage Improvement exist within the Easement Area, City shall maintain the Drainage Improvements within the Easement Area pursuant to the Easement conveyed herein this Agreement, and the Easement shall remain on record until such time as the Owner, or its successors, proceed to develop the Property in a manner approved by the City that includes construction, at Owner's sole cost and expense, of new flood control and drainage improvements to replace the Drainage Improvements constructed by City, (the "Replacement Drainage Improvements"). At such time as the Replacement Drainage Improvements are completed by Owner, or its successors, and the Replacement Drainage Improvements are accepted by City, Owner by written notice to City may request that the City surrender, vacate, abandon, quitclaim, or otherwise reconvey to Owner the Easement conveyed herein this Agreement, (the "Reconveyance Request"). City agrees to reconvey the Easement, or otherwise quitclaim City's interests within the Easement Area, to Owner within 180 days of receipt of Owner's Reconveyance Request. [SIGNATURE PAGE FOLLOWS] 10 4- IN WITNESS WHEREOF, the parties have executed this Agreement, which shall only become effective as of the day and year the last of the parties set forth below signs this Agreement. CITY CITY OF PALM SPRINGS, a California charter city and municip corporation, C�avid=l-k#�d� Marcus L. Fuller Asst. City Manager/City Engineer ATTE James Thompson City Clerk Approved a o rm by- D910glas C. Holland, Esq. City Attorney APPROVED BY CITY COUNCIL e �o ale Pb*. Exhibit List OWNER 4348 Lockwood Avenue LLC, a California Limited Liability Company �cis/% __M M ffl • -• - By - Its: Michael L. Cole and Janet L. Cole, husband and wife as joint tenants By: 69' Michael L. Cole By: ()('��'-� 40�) ��- Janet . Cole �Y« Jogesh Kumar Vashisht and Sunita Kumar Vashisht, Trustees for the Vashisht Family Revocable Trust Dated May 2, 2001, and Restated May 4, 2010 By:�)0,,,A,& �JA-NS� sh Kumar Vashisht, Trustee By ��-O, K��v- , ,,►_� �I "( S� Sunita Kumar Vashisht, Trustee Exhibit A -- Legal Description of the Easement Area Exhibit B -- Depiction of the Easement Area Exhibit C -- Form of Grant of Easement Deed 11 ACCEPTANCE BY ESCROW HOLDER: Stewart Title of California hereby acknowledges that it has received a fully executed counterpart of the foregoing Right -of -Way Agreement for Acquisition of Real Property and Escrow Instructions and agrees to act as Escrow Holder thereunder and to be bound by and perform the terms thereof as such terms apply to Escrow Holder. Date: ("Opening of Escrow") Stewart Title of California By: Name: Its: Exhibit "A" to the Easement Deed LEGAL DESCRIPTION OF THE RIGHT OF WAY EXHIBIT "A" PERMANENT DRAINAGE EASEMENT THAT PORTION OF THE NORTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 34, TOWNSHIP 4 SOUTH, RANGE 4 EAST, SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF PALM SPRINGS, COUNTY OF RIVERSInF, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT THEREOF, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF SAID NORTHEAST QUARTER; THENCE ALONG THE SOUTHERLY LINE OF SAID NORTHEAST QUARTER NORTH 89048'49" WEST 254.06 FEET TO THE TRUE POINT OF BEGINNING; 1. THENCE CONTINUING ALONG SAID SOUTHERLY LINE NORTH 89°48'49" WEST 264.26 FEET; 2. THENCE LEAVING SAID SOUTHERLY LINE NORTH 0000'00" EAST 469,34 FEET; 3. THENCE NORTH 43°49'29" EAST 19.90 FEET TO THE BEGINNING OF A NON -TANGENT 805.00-FOOT RADIUS CURVE CONCAVE SOUTHWESTERLY, THE RADIAL BEARING TO SAID POINT BEING NORTH 43°49'29" EAST; 4. THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 9044'21" A DISTANCE OF 136.83 FEET TO THE BEGINNING OF A TANGENT 80.00-FOOT RADIUS CURVE CONCAVE WESTERLY; 5. THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 47032'35" A DISTANCE OF 66.38 FEET; 6. THENCE SOUTH 11006'25" WEST 57.23 FEET TO THE BEGINNING OF A TANGENT 75.00-FOOT RADIUS CURVE CONCAVE NORTHEASTERLY; 7. THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 61 °44'28" A DISTANCE OF 80.82 FEET; 8. THENCE SOUTH 50038'03" EAST 21.11 FEET TO THE BEGINNING OF A TANGENT 95.00-FOOT RADIUS CURVE CONCAVE NORTHERLY; 9. THENCE EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 66054'41" A DISTANCE OF 110.94 FEET; 10.THENCE NORTH 62027'16" EAST 171.47 FEET TO THE BEGINNING OF A TANGENT 310.00-FOOT RADIUS CURVE CONCAVE SOUTHEASTERLY; 11.THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 9°01'35" A DISTANCE OF 48.84 FEET; Page 1 12.THENCE NORTH 71°28'51" EAST 24.67 FEET TO THE WESTERLY LINE OF SOUTH PALM CANYON DRIVE PER DOCUMENT RECORDED JUNE 8, 2006 AS INSTRUMENT NO. 06-415382 OF OFFICIAL RECORDS; 13.THENCE ALONG SAID WESTERLY LINE SOUTH 0004'27" EAST 105.61 FEET TO THE BEGINNING OF A NON -TANGENT 210.00-FOOT RADIUS CURVE CONCAVE SOUTHEASTERLY, THE RADIUS BEARING TO SAID POINT BEING NORTH 20054'18" WEST; 14. THENCE LEAVING SAID WESTERLY LINE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 27002'46" A DISTANCE OF 99.13 FEET; 15. THENCE SOUTH 42002'56" WEST 67.28 FEET TO A TANGENT 255.00-FOOT RADIUS CURVE CONCAVE NORTHWESTERLY; 16.THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 23029'32" A DISTANCE OF 104.55 FEET TO THE TRUE POINT OF BEGINNING. AREA = 104,308 SQUARE FEET MORE OR LESS. THE BEARINGS AND DISTANCES USED IN THE ABOVE DESCRIPTION ARE BASED ON THE CALIFORNIA COORDINATE SYSTEM OF 1983, ZONE 6. DIVIDE DISTANCES SHOWN BY 1.0000273 TO OBTAIN GROUND DISTANCES. a4'�a� 11/14/14 MICKEY B. A UI E RCE 27648 Page 2 Exhibit "B" to the Easement Deed DEPICTION OF THE RIGHT OF WAY n .J EXHIBIT "B" PERMANENT DRAINAGE AND TEMPORARY CONSTRUCTION EASEMENTS • ��Q� INST. NO. 06-415382 � 44' INST. NO. 100198 r 117� 30' 0 1� z E") r C, , 4 I z z 4 J�� rig if EL I U 1 513-460-033 oo J N � I NOTE: SEE SHEET 2 FOR I :D N LINE AND CURVE DATA 5 I O (n i-T.P.O.B. N'LY TCE T _C11 /N_20'54'18' W (R) 1I L1 44.00* -� ri. J � 254.06' P C J/-'� LEGEND N as•48'49' w ) C' � 014 DRAINAGE EASEMENT TO BE ACQUIRED r �� AREA = 104,308 SF MORE OR LESS 1 , f J�� r�, -r 513-460-032 TEMPE RA RY CONSTRUCTION EASEMENT IRED AREA = 29,812 SF MORE OR LESS P.O.C. POINT OF COMMENCEMENT T.P.O.B. TRUE POINT OF BEGINNING BOGERT TRAIL ,,-TPOB S'LY TCE P.O.C. S.E. COR. N.E. 1 /4 S.E. 1 /4 SEC. 34 RECORDING REQUESTED BY City of Palm Springs WHEN RECORDED RETURN TO: City Clerk CITY OF PALM SPRINGS 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 EXHIBIT C SPACE ABOVE THIS LINE FOR RECORDER'S USE Exempt from recording fees under Government Code §6103 GRANT OF EASEMENT DEED APN: 513-460-033 This transfer is exempt from Documentary Transfer Tax pursuant to Revenue & Taxation Code § 11922. THE UNDERSIGNED OWNER DECLARES: FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, 4348 Lockwood Avenue, LLC, a California Limited Liability Company, as to an undivided twenty-six percent interest (26%) interest, Michael L. Cole q wand Janet K,, Cole, husband and wife as joint tenants, as to an undivided 9 four percent (4%) interest, and Jogesh Kumar Vashisht and Sunita Kumar Vashisht, Trustees for the Vashisht Family Revocable Trust Dated May 2, 2001 and Restated May 4, 2010, as to an undivided seventy percent (70%) interest, all as tenants in common (collectively, "Grantor"), hereby GRANTS to: CITY OF PALM SPRINGS, a California charter city and municipal corporation ("Grantee"), A perpetual exclusive easement for flood control and drainage purposes, over, upon, across, under, and within the real property in the County of Riverside, State of California, legally described on Exhibit A and shown on Exhibit B attached hereto, both exhibits being incorporated herein by this reference. TOGETHER with: 1. Use of all tenements and appurtenances, including easements and water rights, if any, thereto belonging or appertaining, in order for Grantee to use and effectuate the purposes of the Easement; and 2. All rights to enter upon and to pass and repass over and along said easement to deposit tools, machines, implements, and other materials thereon, and to use, control, improve, establish, construct, reconstruct, install, enlarge, repair, refurbish, rehabilitate, inspect, operate, and maintain such flood control and drainage improvements for all time. SAID GRANT BEING FURTHER SUBJECT TO: 1. Grantor shall pay any and all general and special real property taxes for the current fiscal year and all later years. 2. Grantor shall pay any and all assessments imposed by a duly empowered governmental entity, whether or not of record. 3. This grant of easement shall run with the land and bind and inure to the benefit of the respective successors and assigns of the parties hereto. 4. Grantee shall defend and indemnify Grantor and its agents and save them harmless from any and all liability, loss, costs, or obligations on account of, or arising out of, any such injury or losses caused or claimed to be caused by the exercise of the easement rights granted herein or use of the easement area by Grantee, however occurring, other than those caused solely by the willful or negligent acts of omissions of Grantor or its agents. Grantor: 4348 Lockwood Avenue LLC, a California Limited Liability Company By: Its: By: Its: Managing Member Michael L. Col a� Janet L. Cole, husband and wife as joint tenants By: ichael L. Cole By. J net /.,ColeK�� Jogesh Kumar Vashisht and Sunita Kumar Vashisht, Trustees for the Vashisht Family Revocable Trust Dated May 2, 2001, and Restated May 4, 2010 By: Jogesh Kumar Vashisht, Trustee By: Sunita Kumar Vashisht, Trustee �FOR�� CITY OF PALM SPRINGS OFFICE OF THE CITY CLERK 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 (760) 323-8204 CERTIFICATE OF ACCEPTANCE THIS IS TO CERTIFY that the interest in real property conveyed by GRANT OF EASEMENT DEED Real property in the City of Palm Springs, County of Riverside, State of California, as described: Land described in Exhibit "A" APN: 513-460-033 dated: March 3, 2016 from, 4348 Lockwood Avenue, LLC, a California Limited Liability Company, as to an undivided twenty-six percent interest (26%) interest, Michael L. Cole and Janet K. Cole, husband and wife as joint tenants, as to an undivided four percent (4%) interest, and Jogesh Kumar Vashisht and Sunita Kumar Vashisht, Trustees for the Vashisht Family Revocable Trust Dated May 2, 2001 and Restated May 4, 2010, as to an undivided seventy percent (70%) interest, all as tenants in common 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 19' day of April, 2016, pursuant to authority granted by the City Council of said City, by Resolution No. 20255 made on the 16th 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 19t' day of April, 2016. AMES THOMPSON City Clerk RECORDING REQUESTED BY City of Palm Springs WHEN RECORDED RETURN TO: City Clerk CITY OF PALM SPRINGS 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 SPACE ABOVE THIS LINE FOR RECORDER'S USE Exempt from recording fees under Government Code §6103 GRANT OF EASEMENT DEED APN: 513-460-033 This transfer is exempt from Documentary Transfer Tax pursuant to Revenue & Taxation Code § 11922. THE UNDERSIGNED OWNER DECLARES: FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, �� 4348 Lockwood Avenue, LLC, a California Limited Liability Company, as to an undivided twenty- six percent interest (26%) interest, Michael L. Cole and Janet ,Cole, husband and wife as joint tenants, as to an undivided four percent (4%) interest, and Jogesh Kumar Vashisht and Sunita Kumar Vashisht, Trustees for the Vashisht Family Revocable Trust Dated May 2, 2001 and Restated May 4, 2010, as to an undivided seventy percent (70%) interest, all as tenants in common (collectively, "Grantor"), hereby GRANTS to: CITY OF PALM SPRINGS, a California charter city and municipal corporation ("Grantee"), A perpetual exclusive easement for flood control and drainage purposes, over, upon, across, under, and within the real property in the County of Riverside, State of California, legally described on Exhibit A and shown on Exhibit B attached hereto, both exhibits being incorporated herein by this reference. TOGETHER with: 1. Use of all tenements and appurtenances, including easements and water rights, if any, thereto belonging or appertaining, in order for Grantee to use and effectuate the purposes of the Easement; and 2. All rights to enter upon and to pass and repass over and along said easement to deposit tools, machines, implements, and other materials thereon; and to use, control, improve, establish, construct, reconstruct, install, enlarge, repair, refurbish, rehabilitate, inspect, operate, and maintain such flood control and drainage improvements for all time. �r SAID GRANT BEING FURTHER SUBJECT TO: 1. Grantor shall pay any and all general and special real property taxes for the current fiscal year and all later years. 2. Grantor shall pay any and all assessments imposed by a duly empowered governmental entity, whether or not of record. 3. This grant of easement shall run with the land and bind and inure to the benefit of the respective successors and assigns of the parties hereto. 4. Grantee shall defend and indemnify Grantor and its agents and save them harmless from any and all liability, loss, costs, or obligations on account of, or arising out of, any such injury or losses caused or claimed to be caused by the exercise of the easement rights granted herein or use of the easement area by Grantee, however occurring, other than those caused solely by the willful or negligent acts of omissions of Grantor or its agents. Grantor: 4348 Lock ood Avenue LC, a California Limited Liability Company By: Its: M in Memb r By Its.. Michael 4. Cole and Janet L. Cole, husband and wife as joint tenants Michael L. Cole By. J etK. Cole Jogesh Kumar Vashisht and Sunita Kumar Vashisht, Trustees for the Vashisht Family Revocable Trust Dated May 2, 2001, and Restated M y 41 2010 Kumar Vashisht, Trustee Sunita Kumar Vashisht, Trustee EXHIBIT "A" PERMANENT DRAINAGE EASEMENT THAT PORTION OF THE NORTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 34, TOWNSHIP 4 SOUTH, RANGE 4 EAST, SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF PALM SPRINGS, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT THEREOF, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF SAID NORTHEAST QUARTER; THENCE ALONG THE SOUTHERLY LINE OF SAID NORTHEAST QUARTER NORTH 89048'49" WEST 254.06 FEET TO THE TRUE POINT OF BEGINNING; 1. THENCE CONTINUING ALONG SAID SOUTHERLY LINE NORTH 89048'49" WEST 264.26 FEET; 2. THENCE LEAVING SAID SOUTHERLY LINE NORTH 0000'00" EAST 469.34 FEET; 3. THENCE NORTH 43049'29" EAST 19.90 FEET TO THE BEGINNING OF A NON -TANGENT 805.00-FOOT RADIUS CURVE CONCAVE SOUTHWESTERLY, THE RADIAL BEARING TO SAID POINT BEING NORTH 43°49'29" EAST; 4. THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 9044'21" A DISTANCE OF 136.83 FEET TO THE BEGINNING OF A TANGENT 80.00-FOOT RADIUS CURVE CONCAVE WESTERLY; 5. THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 47032'35" A DISTANCE OF 66.38 FEET; 6. THENCE SOUTH 11 006'25" WEST 57.23 FEET TO THE BEGINNING OF A TANGENT 75.00-FOOT RADIUS CURVE CONCAVE NORTHEASTERLY; 7. THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 61 °44'28" A DISTANCE OF 80.82 FEET; 8. THENCE SOUTH 50038'03" EAST 21.11 FEET TO THE BEGINNING OF A TANGENT 95.00-FOOT RADIUS CURVE CONCAVE NORTHERLY; 9. THENCE EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 66054'41" A DISTANCE OF 110.94 FEET; 10.THENCE NORTH 62°27'16" EAST 171.47 FEET TO THE BEGINNING OF A TANGENT 310.00-FOOT RADIUS CURVE CONCAVE SOUTHEASTERLY; 11.THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 9001'35" A DISTANCE OF 48.84 FEET; Page 1 12. THENCE NORTH 71 °28'51" EAST 24.67 FEET TO THE WESTERLY LINE OF SOUTH PALM CANYON DRIVE PER DOCUMENT RECORDED JUNE 8, 2006 AS INSTRUMENT NO. 06-415382 OF OFFICIAL RECORDS; 13.THENCE ALONG SAID WESTERLY LINE SOUTH 0004'27" EAST 105.61 FEET TO THE BEGINNING OF A NON -TANGENT 210.00-FOOT RADIUS CURVE CONCAVE SOUTHEASTERLY, THE RADIUS BEARING TO SAID POINT BEING NORTH 20054'18" WEST; 14.THENCE LEAVING SAID WESTERLY LINE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 27002'46" A DISTANCE OF 99.13 FEET; 15_THENCE SOUTH 42002'56" WEST 67.28 FEET TO A TANGENT 255.00-FOOT RADIUS CURVE CONCAVE NORTHWESTERLY; 16.THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 23029'32" A DISTANCE OF 104.55 FEET TO THE TRUE POINT OF BEGINNING. AREA = 104,308 SQUARE FEET MORE OR LESS. THE BEARINGS AND DISTANCES USED IN THE ABOVE DESCRIPTION ARE BASED ON THE CALIFORNIA COORDINATE SYSTEM OF 1983, ZONE 6. DIVIDE DISTANCES SHOWN BY 1.0000273 TO OBTAIN GROUND DISTANCES. 4'110� 11/14/14 MICKEY B. A UI E RCE 27648 Page 2 EXHIBIT "B" PERMANENT DRAINAGE AND TEMPORARY CONSTRUCTION EASEMENTS INST. NO. 06-415382— 44' INST. N0. 100198 L17-�- 30' 0 r/%% 0 IIJ I I /1 JJ� J 1J /J a JJ j 513-460-033 o� N � I NOTE: SEE SHEET 2 FOR LINE AND CURVE O P.O.B. AA\l bt LY TCE 00 1/4 J�r�J 34 Ir ��, J J 4JJ� J 1, /f �J 513-460-032 (s C11 N 20'54'18° W(R) C4 G6 I s T.P.O.B. \`�• DRAIAGE EASEMENT G 1 BOGERT TRAIL TPOB �S'LY TCE \ LEGEND N 89'48'49` W ` `P.O.C. S.E. COR. DRAINAGE EASEMENT TO BE ACQUIRED N.E. 1/4 AREA = 104,308 SF MORE OR LESS S.E. 1/4 SEC. 34 STRUCTION EASEMENT MBER TO CQUIREDARY AREA = 29,812 SF MORE OR LESS P.O.C. POINT OF COMMENCEMENT T.P.O.B. TRUE POINT OF BEGINNING CITY OF PALM SPRINGS PREPARED BY: MA REVIEWED BY: JR PROJECT: S. PALM CANYON DRIVE SCALE: 1' = 100' APN S 513-460-033 -- DATE: 3-20-15 1 SHEET t OF 2 c � ACKNOWLEDGEMENT 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 CALIFORNIA j ss. COUNTY OF-P' i' VL S ) m� c�1 r On ` �I befo_ re_ - me, e,,(1� %� co A"), Notary Public, personally appeared - , 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/shelthejT executed the same in his/ImTftfifr authorized capacity(ies), and that by his/4e4their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WIT ESS my handand official seal. Signature My Commission Expires: RENEJOHNSON Commission # 2006487 z =�e Notary Public - California z z ' Riverside County D My Comm. Expires Mar 4, 2017 This area for official notarial seal ACKNOWLEDGEMENT 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. S I ATE OF CALIFORNIA ) ) ss. COUNTY OF �f Vu s U ) before mj?61 � Nota Public personally appeared i�vl' i�- h t �,t�. 7, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) -io/are subscribed to the within instrument and acknowledged to me that they executed the same in hisOyer/their authorized capacity(ies), and that by hl is -ttheir signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. RENE JOHNsON Commission # 2006487 WI ESS my hand an official seal. r Notary Public - California z Riverside County n My Comm. Expires Mar 4, 2017 Signature i My Commission Expires: i This area for official notarial seal d% ACKNOWLEDGEMENT 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 CALIFORNIA ) (� COUNTY OF ) ss. "f'C l�'� r ) On 0,if&3,c4*7. before mgt personally appeared �b ftiq Il l: [✓igte L Notary Public, 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/&ke y executed the same in his/hwd44eir authorized capacity(ies), and that by his/hoAh r signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. RENE JOHNs0N Commission # 2006487 WIT SS my han and fficial seal. r"a Notary Public -California D ��Riverside County My Comm. Expires Mar 4.2017 Signature �y My Commission Expires: c This area for official notarial seal 014 ACKNOWLEDGEMENT 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 CALIFORNIA ) ) s5. COUNTY OF QR►ani41t5 ) On �`'1�t�C,1-1 `], WV before me, 1>cuo cqo \ Notary Public, personally appeared ,1AW CQLAB who proved to me on the basis of satisfactory evidence to be the person(K whose name(gjTPZre subscribed to the within instrument and acknowledged to me that Ooy executed the same in Vg/tfi%ir authorized capacity), and that by ' he /tKeir signature(2r) on the instrument the person,�f , or the entity upon behalf of which the perso acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Si ure My Commission Expires: 142,0(h((© This area for official notarial seal DE ON CH01 Commission # 2001738 aNotary Public - California z z z 'r'' Orange County r My Comm. Expires Dec 20, 2016 offic-