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7/26/2017 - STAFF REPORTS - 1.H.
V,ALMSS iy a v {n .Q .A\{O c tlfroito CITY COUNCIL STAFF REPORT DATE: July 26, 2017 CONSENT SUBJECT: APPROVAL OF A PURCHASE AND SALE AGREEMENT WITH 7 IN OLIVERA, LLC, FOR A STRIP OF UNIMPROVED REAL PROPERTY ALONG THE WESTERN BOUNDARY OF TENTATIVE TRACT MAP 37041 GENERALLY LOCATED AT THE NORTH EAST CORNER OF VIA OLIVERA AND THE ZANERO ROAD ALIGNMENT. FROM: David H. Ready, City Manager BY: Marcus Fuller, Assistant City Manager Edward Kotkin, City Attorney SUMMARY: The City has recently approved a tentative map for a condominium project (Tract 37041) at the north east corner of Via Olivera and the Zanero Road alignment. The City owns in fee a strip of land, approximately 6,384 square feet in size within the abandoned Zanero Road right of way. 7 in Olivera, LLC, the developer of Tract 37041, desires to acquire this strip of land and incorporate it within the condominium project to assure the attainment of setback and overall dimensional requirements of the project. The City is willing to sell the property at a fair market value which will be either the negotiated purchase price of $47,880 or an amount based on purchase proposals the City will solicit during a 30 day window, whichever amount is higher. The City will offer the property for sale to third parties, while providing the developer with a right of first refusal to essentially match any offer to purchase that exceeds the negotiated purchase price. RECOMMENDATION: 1. Approve a Purchase and Sale Agreement for the sale of a strip of unimproved real property along the western boundary of proposed Tentative Condominium Tract Map 37041, including right of first refusal. 2. Authorize the City Manager to solicit proposals and otherwise administer the provisions of the Purchase and Sale Agreement and execute all appropriate and related documents. ITEM NO. -, H- City Council Staff Report July 26, 2017 -- Page 2 (Purchase and Sale Agreement) BACKGROUND: The Developer of a condominium project (Tract 37401), 7 in Olivera LLC, has determined that a strip of land (abandoned right-of-way), consisting of approximately 6,384 of land on the west side of its project, must be included as a part of its project. The City has determined that it will only be able to recommend approval of the project as designed with this strip of land included. The project and its concomitant setbacks and other dimensional requirements are not acceptable without this additional square footage. Please note the tentative condominium tract map provided as ATTACHMENT A to this staff report as to the configuration of the parcel and the location of the strip of land to be sold. The City land to be sold is entirely within the "FUTURE ZANJERO ROAD" reflected on the map. When the developer initially contemplated acquisition of this strip, its due diligence revealed that the City owned this strip of land in fee. The City received this land at no cost in 1949 pursuant to a quitclaim deed. Regarding the fair market value for this strip of land, staff has identified the fact that the immediately adjacent strip of land along the east side of the City's parcel of right-of-way is owned by Desert Water Agency (DWA), and that in November 2016 DWA completed an appraisal of its adjacent strip of land for the purposes of selling it as suplus property. DWA's appraisal determined a fair market value of$7.50 per square foot, and it is staffs recommendation that given the immediate adjacency of this parcel to the City's parcel of right-of-way, that DWA's appraisal may be used as the basis of establishing fair market value for selling the City's parcel to the Developer. However, staff is also recommending that the City concurrently list the parcel of right-of-way for sale to the general public to determine if a higher value might be received. Using the fair market value of $7.50 per square foot, with a total area of 6,384 square feet, a total value of $47,880 is recommended as the fair market value, subject to the concurrent listing of the parcel for sale. This value exceeded the Developer's initial offer of $10,000, and after extensive negotiation with staff, the Developer has agreed to purchase this strip of land from the City at the fair market price of $47,880 as reflected in the attached purchase and sale agreement, ATTACHMENT B. The City proposes to sell the property to the Developer at the negotiated price; however, the sale will be subject to a right of the City to offer the strip of land for sale subject to the City's established policy and procedure of listing real property for sale. The City will solicit purchase proposals from third parties during a 30 day window after the agreement has been approved. In the event the City receives one or more proposals that exceed the negotiated amount, the Developer will be provided a "right of first refusal" to purchase the property at the higher amount plus $1.00. 02 City Council Staff Report July 26, 2017 -- Page 3 (Purchase and Sale Agreement) CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA) DETERMINATION: This purchase and sale of land is not a "project' for purposes of the California Environmental Quality Act (CEQA), as that term is defined by CEQA guidelines (Guidelines) section 15378. This action is organizational or administrative activity by the City of Palm Springs in furtherance of its police power, and will not result in a direct or indirect physical change in the environment, per section 15378(b)(5) of the Guidelines. The environmental assessment to be performed with respect to the forthcoming application for development entitlement related to the Condominium Tract Map 37401 will be the analysis for any future project. Staff anticipates that the project itself, when considered, will be determined exempt. FISCAL ANALYSIS The proposed agreement provides that the property will be sold at the negotiated price of $47,880 or an amount equal (plus$1.00)of any purchase proposal. This process ensures that the City will be receiving a fair price for such property. Marcus L. Fuller, A, P.E., P.L.S. Edward Z. Kotkin Assistant City Manager City Attorney ?ram David H. Ready, Esq., D. City Manager Attachments: A. Tentative Condominium Tract Map B. Purchase and Sale Agreement 03 IN THE CITY OF PALM SPRINGS,COUNTY OF RIVERSIDE,STATE OF CALIFORNIA TENTATIVE CONDOMINIUM TRACT MAP NO. 37041 BEING A SUBDIVISION OF PARCELS I A 2.PER RECORD OF SURVEY 14&05 0 LOCATED AT SECTION 3,TORANSHIP 4 SOUTH.RANGE 4 EAST.SAM BERNARDINO MERIDIAN SEPTEMBER M16 e ASSESSOR'S PARCEL NO. OWNER 8RE { 564-260-Cmd A-D05 i IN OL14RA LC \ YT V I I r 12 N 04KURST DRIVE 1204 ap SIAUX F \�� GENERAL PLAN AND ZONING DATA BEr>_RLr plus,CA 90210 i I 1 i � i LL GENERAL PLAN DCSICW.LIW.NOR PER fPSP Nllo" zDXIw^ R-2 LEGAL DESCRIPTIONJ rerecn T UTILITIES:ELECTRIC'. SOMMERM CALIFORHNIA EEC50rJ ALLER ROPIER Ci IXC WRMFa51 DEBATER GE 4 ESE SIN 51 gIARTER OF SECTION 3.TOMFJIP 4 SOUTH,fl.WGE 4 EAST.$AN.OXIALI. 0(R I.H1 BERNAPOIND BASE AND MERICAN, NME CITY OF PALM SPRINGS(J60)202-425D CgINttOi MVE0.510E.STAIC Ci LALIFDRNI/.,AS SnpNN BY urvllED L Kpwc STATES IAVEPNNENT SURVEY,PARTILLURLY DESCRIBED AS FOLLOW$'. CONTACT COMMENCING AT A EVENT IN THE LINE OF / r \` I''Y_'/=;J\;E_1\\I`%/I11L + PMM M1 GAS. ED CALIFORNIA GAS�1 1E CPMWE. VEONP 2AONTCO]60ANY LARRY NE200Y WAR PCGWJTN D'11 MUCH p NE50iR,p52I6']B CH NO BTMNESi 6)SSAiD SOUTHEASTTHE L (X`��'] Y PCRTXEA51 CORNER HEREOF; FEET FPpY IN FEET ING SOUTH (760)118- FOR MEPONT a eEmNwrvG VICINITY MAP Io.TB FEET N x WAIIR GO IN WATER A PER CY TMENLE NgtM 89 5J EAST.X8.25 FCE11 _ _ 1 N ONTACi.DEBBIE RACE THENCE NdiM 15.O6'WE51,IIJdB FEET, L�L� (JeO)f33-4E)1 EYI 148 THENCE NORM B9'37 WEST,1]B]5 FEET TO THE PONT OF EUCHRING // �111 LN Nr' � EXCEPTING THEREFROM THAT PORTION CONVEYED TO SIDNEY RAYMOND TV CABLE: TIME WARNER CABLE CASH DY.AN UNMARRIED MAN,BY OECD RECORDED SEPTEMBER 12.1970 l'^Li 4` , M I 1 \'1 CONTACT:054E SCRM1NEfl S STY, 1ALI NO.192305,OF OPTICAL RECORDS OF RIVERSIDE SI 11 \ 1\ (J60)CT DALE COUNTY,GL60RN14�`,} RTiT 3 11 1`�_+'�, �_� / w GROSS AREA PARCEL z LEGEND p II11 1 Irii/91 /A I� il/,4 iy R,�X(01 I ,r g �1 RS 1� TGROSSAPIR AMA.F.16 SF R Dl9 ACRE ALL THAT PORTON OF THE NORTHEAST CLAPPER OF THE SOUTHEAST BOUNDARY `� 2➢) I, Lam..-X'` y I4.41 _ icM tu) I m6' 1 oss ARFHAFIrP RYw vecI CN)=Sspn s= Qny �1 ^ WARIER OF SECTION],TOWNSHIP MOUTH,RANGE 4:SEER.SAN la iy@7 Jv�I` -L `1 o.e]AN COUNTY RASE 'o STAFF OF w C A, a PALM SY UNIT -- ---• EXIST.FENCE O O - 1 N LAND EJ$E COUNTY O RIVERSIDE STALE OF GCULARLA,AS DESCRIBED S UNITED CYST,UNDERGROUND 1V CABLE N `\\kI A/ ____ /��Y W , 4 STATES GOKRNMENT SURVEY.PARTICULARLY DESCRIBED AS FOLLOWS: �Y �� a1 1,y y `\ IIJJ 1 `1 ` *yam EKISTNG VACANT -�x - EXIST UNDERGROUND 1ELEPH04E LINE / 1 \IIIVI . . `1 PRLWEED:9 SINGLE FAMILY RESIDENTIAL [OMNE I WHICH AT A POINT R TXE 30 LINE OF SAIL SOUTHEASTFRTHE a- J `L ` CONDOMINIUM UNITS WARIER T COR EE THEREOF; RDRM B9']8'mSI.8r5 TEL I„nN ME EXIST UNDERGROUND ELECTRIC LINE _ e\ 1\ NEW LEAST CORNER HEREOF' LIZ1 11 ` \� THENCE SPORT p'N'WEST, 30 FEET FROM THE POINT TY HEOINNNG; -`-`-`-`-`- EXIST.OVERHEAD ELECTRI:ENE 589'S5'42"WOR, r h ENGINEER MEMOS WNTNLRIG SOUTH ED 1Y MEAT.96.3E FEET. / z ` ENGINEERING -ti--..--.-x- EXIST SEWER LINE ED` _ ( 225 SOP HV D NCE NORTH B9']J'EAST. 0.FEET. FEET; ( 225 SOUTH,.M[DRIVE.SURE I-5 THENCE THENCE ASHM 15'96'WEST,ISO FEET, -.-.-5-.-5- EXIST.WATER LINE 37 MET LQ�-i ''/ /,-///^1`\J\I ; _4\1 wyL �� E XF 260]23-142 CAST INSTRUMENT NNNi NCR1RED M CE BOFpDEEDE RECORDS OF SEPTEMBER 12.1NC. 1 Yl 11 p O M SPRINGS.CALIFORXIA 92R6R JJ�I_I I I Q .( XI � PHONE (MO)323-18<2 EYCEPTNC THEREFROM MAT PORTION CONVEYED 10 STONEY RAVNONO —u—c�<. EKISi.GAS GIN[ J 0,83 AC (36,273 SF) _,+, ' O0 1 FAX. 1 ) IESII].,9J6 iLIP X COMMON, RCE 472M RIVERSIDE EXIST.WAIT / � I 1 � 1 \ \\ ONOICR, E 384 LWXiT.CALIFORNIA D �(''u7-- EyISi.CONTOUR \V / I 'F ® EXIST_PAVER \L EASEMENT NOTES EXIST,FIRE HYDRANT ` F PER FIDELITY REGIONAL TITLE COMPANY ORDER NO.: ® EXIST.WATER VALVE 996.23061116-EH,CITED ILLY 17.MIS 4111L / /A - . f r}, 1 EXIST.CONCRETE r L^x'IX/x L * ` Im PUPM[P[(06�M OR Irt4F TO xNTa...TMw In mT XSCIOsrx n (off,1 9 I''-1_'��99(i(® --' ` x..TIERED Q Ensr_s[w[x NANIm¢ PA.noµ REFORM. X-QJ EXIST.POWER POLL 1�T��1U P',�iiN=' �i I 1 A /1 r 11 `F ` NM.AHP IRENT OF SUI usnENT a MIT OCCLOSEO OF © EXIST.TJ CABLE BOX 11`I JJ,I 1A RAP PH I¢co6O. I 1PARMORMATER CORPOuncx,PEm.o[o uxAv 11 x nvaAA ® EXIST.SEWEIRRIGR CL VALVE NUMAXISR 1 ECALON AND VITAL A SOD 6MAN S NOT NN.'LDHO a G. O Ex15i.SEWER LLEANOUI H .`1 S MccuN. I )I 1 Q EXIST.AIR CONDRION'NG JNIT / M]T2r EERY m. OPEO 1-1 1 11" Q EXIST.TELEPHONE BOX 1/ ` 1 \_ - 1' PFALIN AND EXTENT OF SOD uscMLNT S NET azNwm RE 8 1 N �� rrtcwv EXIST.UTILITY STRUCTURE o n ff.+ 1 EXIST.GUY WIRE i m[LlycrM Pn[a,o[Em FALL ` 1 mDX I.FREE BE Dm[w HONE EXIST HEDGE i`1 p 1 .RAM OR EXIST,TREE PROSEERD4>M n' L STORM WATER FLOW DIRECTION .-/' - / 1 1 rtRAMR,NT Amca,AN rs SE nTRIM x 1.oxu.EAT ST 50lMRE FOOT - _ •— —F. • 1 EX. EXISTING N.x c A �- - NE6XmxP O,TrLL—.e,m1mrcwxl a M[nRXncx S q•�I 4 NO MAP BOON F. VIA OLIVERA MC.wam m REAL en 11 m1Xx,OCYMPE MDR MEDIUM DENSITY RESIDENTIAL -- '_4 _-•^^�" _ `--- v.ro:u nm,•—•—•—•— •— � ytgrlv,Tw(5I PF o COVEM1x u IMXllaxs rs.CPAMrs AND YC (1 EXISTING n?* -Mrs 1 SAMMS.wrt.wAm AS Is11 IG TOP OF GRAZE c TOP OF CURB wn .D„x„ y ` ARE.NO mON"I SAM mE"PEAL ISO MY, PROP PROPOSED _------------------------------------;----- - - REG wo PmENANIS,POSSTO11'NO RESIN-ARE wcz>PF SD STORM GRAIN _ _ FL FLOW LINE PEP.mT6FmX T16 PrcMR,lACNE FL OFFCAL..I. AC RICH R7M RIGHT OF WAY PttNON GUL F PRELIMINARY N0. RENSIONS APPROHo GATE L pL,„, FOMOTOR 325 1 AP ry F P Y U 4 F F DS XDMT„ ?r✓"AN TENTATIVE"AR. --MIN UMW ENGINEERING TRACT MAP N0,37041 ar o m w SOU PARCELS 1 &2 y..� ,ova MIYS SC I CA 92 621 S PER RECORD OF SURVEY 145/05 (ES)v] 6E2 Ox Cho) Ex N: 504 26G 00 &504 260 D 2 sE06 1�J AGREEMENT FOR PURCHASE AND SALE OF RIGHT OF WAY THIS AGREEMENT FOR PURCHASE AND SALE OF RIGHT OF WAY ("Agreement") is made and entered into on this day of July, 2017, by and between the CITY OF PALM SPRINGS, a California charter city and municipal corporation ("Seller"), and 7 IN OLIVERA LLC, a California limited liability company ("Purchaser"). Seller and Purchaser are sometimes referenced below as the "Parties," and each as a "Party." In consideration of the mutual covenants and representations herein contained, and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: RECITALS A. The purpose of this Agreement is to provide for the purchase and sale of that certain six thousand three hundred and eighty-four (6,384) square feet of right of way, currently owned in fee by the City of Palm Springs ("RoW"). Exhibit A, attached hereto and incorporated by this reference herein, reflects the legal description of the ROW as known by the Parties. The ROW is located on the eastern boundary of a site owned and planned for future development by Purchaser (the "Site"), with frontage on Via Olivera, in the City of Palm Springs, County of Riverside, State of California, and contiguous to a planned cross-street that will be a new segment of Zanjero Road. B. The Site consists of the two (2) Purchaser-owned parcels, approximately .83 acres in size in the aggregate, identified as assessor's parcels number 504-260-004 and 504- 260-005, and generally located at the northwest corner of Via Olivera and the future Zanjero Road. C. The Site is incorporated in Purchaser's Tentative Condominium Tract Map No. 37041, as proposed by Purchaser for the Seller's consideration and approval (the "Map"). Exhibit B, attached hereto and incorporated by this reference herein, reflects the Site in the context of the Map. The Map depicts certain setback and dimensional issues that would prevent final approval by the Seller in its governmental capacity unless modified into conformance which may require a reduction in dwelling unit count or size. D. As such, the Parties understand and agree that Purchaser's acquisition of title to the ROW is a condition precedent to Purchaser's development and improvement of the Site as shown in the Map. Purchaser desires to acquire the ROW and incorporate the ROW into the Site to ease such dimensional limitations. E. The City has determined that the Site's development, if it proceeds pursuant to this Agreement, will advance the best interests of the City in accord with the public purposes and provisions of applicable federal, state, and local laws and requirements. AGREEMENT FOR PURCHASE AND SALE OF RIGHT OF WAY 7 at Olivera, LLC Page 1 of 9 05 F. Prior to consummating the purchase and sale contemplated by this Agreement, the Parties understand and agree that Seller, in an effort to secure the maximum value attainable upon its sale of the ROW, will market the RoW for sale to the public. G. In recognition of Purchaser's desire to develop the Site and Seller's intent to cooperate with Purchaser's plan to purchase the ROW pursuant to the terms and conditions of this Agreement, Seller will give Purchaser a "right of first refusal" with respect to any offer to purchase the ROW received by Seller during Seller's marketing of the RoW. NOW, THEREFORE, IT IS MUTUALLY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS: 1. AGREEMENT TO SELL AND PURCHASE Based upon the true and correct recitals above, incorporated in their entirety herein by this reference as material contractual terms, inclusive of the referenced exhibits and definitions, Seller agrees to sell the ROW to Purchaser, and Purchaser agrees to purchase the ROW from Seller, upon the terms and for the consideration set forth in this Agreement. 2. OWNER/SELLER The City of Palm Springs ("Seller"), a charter city organized under the laws of the State of California, owns the ROW to be sold pursuant to this Agreement. The office of the Seller is located at 3200 E. Tahquitz Canyon Way, P.O. Box 2743, Palm Springs, CA 92263-2743. 3. PURCHASING ENTITY 7 In Olivera LLC, a California limited liability ("Purchaser') seeks to acquire title to the ROW hereunder. The principal office of the Purchaser is located at 412 N Oakhurst Dr., Apt #204, Beverly Hills CA 90210. The term "Purchaser" as used in this Agreement includes any permitted transferee, conveyee, or assignee of the Purchaser with the qualifications and financial responsibility necessary and adequate, consistent with the provisions of this Agreement and as may be reasonably determined by the City Manager, to fulfill the obligations undertaken in this Agreement by the Purchaser. 4. PURCHASE PRICE The Parties agree that absent Purchaser's exercise of its right of first refusal hereunder, the total purchase price for the ROW, payable Purchaser to Seller in cash through the escrow facilitating the transaction underlying this Agreement ("Escrow"), shall be the lump sum of Forty Seven Thousand Eight Hundred Eighty Dollars and No Cents ($47,880.00) (the "Purchase Price"). In the event that Purchaser exercises its right of first refusal hereunder, the adjusted purchase price of the right of way shall be as specified below. AGREEMENT FOR PURCHASE AND SALE OF RIGHT OF WAY 7 at Olivera, LLC 06 Page 2 of 9 5. USE OF SITE. Purchaser's use of the Site upon acquisition of the ROW shall consist of construction and maintenance of a multi-family residential project which meets all applicable zoning and development standards of the Seller in its governmental capacity. 6. MARKETING OF SITE PRIOR TO ESCROW, RIGHT OF FIRST REFUSAL (a) Seller shall list the ROW for sale, in accord with Seller's established policy and procedure of listing real property for sale, within two (2) business days of the Parties' execution of this Agreement. The duration of Seller's listing of the ROW shall be thirty (30) days. Seller's listing shall indicate that any purchase of the ROW by a third party (a "Third Party Purchaser") shall be subject to a right of first refusal benefitting Purchaser ("ROFR"), whereby Purchaser shall have the right to purchase the ROW for an adjusted purchase price of one dollar ($1.00) more than any price offered by a Third Party Purchaser ("Adjusted Purchase Price"). Further, the listing shall indicate that a copy of this Agreement, including the specific terms of the ROFR, shall be available to any prospective Third Party Purchaser upon a written request to the City Clerk. (b) Seller shall give Purchaser written notice of all offers to purchase the ROW received from any Third Party Purchaser during the duration of the Seller's listing of the ROW within two (2) business days of the close of the listing period. Purchaser shall have two (2) business days after receipt of such written notice of all offers, if any, to exercise its ROFR with respect to that the highest and/or best offer in excess of the Purchase Price. In the event that Purchaser exercises its ROFR, Seller shall communicate notice of the fact of that exercise to the Third Party Purchaser, and the offer by the Third Party Purchaser in question shall be deemed rejected. (c) In the event that Purchaser exercises its ROFR and offers to purchase the ROW from Seller for an Adjusted Purchase Price, escrow shall open as per this Agreement. (d) Pursuant and according to the terms above, Seller hereby grants Purchaser a ROFR as to Seller's potential sale of the ROW to any Third Party Purchaser, and further, hereby warrants and covenants that it will sell the ROW to Purchaser for the Adjusted Purchase Price subsequent to any exercise of Purchaser's ROFR. 7. ESCROW AND TITLE INSURANCE (a) Within two (2) business days of the expiration of Seller's listing of the ROW for sale, the Parties shall open escrow ("Escrow") with an escrow company located in the City of Palm Springs, California ("Escrow Holder'). Each of AGREEMENT FOR PURCHASE AND SALE OF RIGHT OF WAY 7 at Olivera, LLC 07 Page 3 of 9 the Parties shall pay fifty percent (50%) of all fees, charges, and costs of Escrow. (b) Seller shall deposit an executed and duly notarized copy of an instrument conveying title to the ROW to Purchaser, suitable for recordation in the Official Records of Riverside County, with Escrow Holder within five (5) business days after opening of Escrow. (c) Purchaser shall deposit the full amount of the Purchase Price or the Adjusted Purchase Price in good funds with Escrow Holder within five (5) business days after opening of Escrow. (d) Escrow Holder shall cause to be issued and delivered to Purchaser, as of Escrow's closing date and at Seller's expense, a CLTA standard coverage policy of title insurance or, upon Purchaser's request and at Purchaser's expense for the excess cost therefore an ALTA standard or extended coverage policy of title insurance (a "Title Policy"), issued by Lawyers Title, with liability in the amount of the Purchase Price, covering the ROW, and showing title thereto vested in Purchaser free of encumbrances and exceptions apart from: A. The standard printed exceptions and exclusions contained in the CLTA or ALTA form policy; B. Utility and/or other easements or rights of third parties as to which Seller has no control or capacity to eliminate; and C. Any exceptions created or consented to by Seller, including without limitation, any exceptions arising by reason of Seller's possession, through the close of Escrow, of the ROW. (e) The Escrow's closing date (the "Closing Date") shall be as soon as practicable, and in no event after September 28, 2017 (the "Outside Closing Date"). Escrow Holder may utilize all or part of this Agreement as escrow instructions. 8. "AS IS" TRANSACTION, INDEMNITY SELLER IS MAKING NO REPRESENTATIONS OR WARRANTIES REGARDING THE DEVELOPMENT POTENTIAL OF THE RIGHT OF WAY SOLD PURSUANT TO THIS AGREEMENT, OR ITS SUITABILITY FOR ANY PARTICULAR USE OR PURPOSE, OR WITH RESPECT TO ENVIRONMENTAL, HAZARDOUS WASTE OR OTHER LAWS OR ORDINANCES, OR REGARDING THE PHYSICAL CONDITION OF THE RIGHT OF WAY, INCLUDING SOILS AND GEOLOGY, OR REGARDING ANY LICENSES OR PERMITS THAT PURCHASER MAY NEED TO OBTAIN IN ORDER TO OWN, LEASE OR USE THE RIGHT OF WAY IN ACCORDANCE AGREEMENT FOR PURCHASE AND SALE OF RIGHT OF WAY 7 at Olivera, LLC O vp Page 4 of 9 WITH ITS EXISTING OR ANY CONTEMPLATED USES, OR REGARDING ANY OTHER MATTER OR THING WHATSOEVER. PURCHASER IS ACQUIRING THE RIGHT OF WAY "AS IS," IN ITS PRESENT STATE AND PHYSICAL CONDITION. Seller's Initials: ( ) Purchaser's Initials: ( ) Purchaser agrees, from and after close of Escrow, to defend, indemnify, protect and hold harmless the Seller and its officers, beneficiaries, employees, agents, attorneys, representatives, legal successors and assigns ("Indemnitees") from, regarding and against any and all liabilities, obligations, orders, decrees, judgments, liens, demands, actions, claims, losses, damages, fines, penalties, expenses, or costs of any kind or nature whatsoever, together with fees (including, without limitation, reasonable attorneys' fees and experts' and consultants' fees), whenever arising, unless caused in whole or in part by any of the Indemnitees, resulting from or in connection with the actual or claimed condition of the ROW sold by Seller to Purchaser hereunder. Purchaser's defense, indemnification, protection and hold harmless obligations herein shall include, without limitation, the duty to respond to any governmental inquiry, investigation, claim or demand regarding the actual or claimed condition of the ROW, at Purchaser's sole cost. 9. COUNTERPARTS This Agreement may be executed in counterparts, each of which so executed shall, irrespective of the date of its execution and delivery, be deemed an original, and all such counterparts together shall constitute one and the same instrument. 10. AMENDMENT This Agreement may be amended only by a written instrument executed by the Party or Parties to be bound thereby. 11. ATTORNEYS' FEES In the event any legal action is brought to enforce the terms of this Agreement or to recover damages for its breach, the prevailing party shall be entitled to reasonable attorneys' fees therein as well as attorneys' fees incurred in enforcing any judgment pertaining to such an action. 12. DEFAULTS, REMEDIES AND TERMINATION (a) Subject to the extensions of time set forth herein, failure or delay by either Party to perform any term or provision of this Agreement constitutes a default under this Agreement. The Party who so fails or delays must immediately commence to cure, correct or remedy such failure or delay and AGREEMENT FOR PURCHASE AND SALE OF RIGHT OF WAY 7 at Olivera, LLC 09 Page 5 of 9 shall complete such cure, correction or remedy with reasonable diligence, and during any period of curing shall not be in default. (b) The injured party shall give written notice of default to the party in default specifying the default complained of by the injured party. Except as required to protect against further damages, the injured party may not institute proceedings against the party in default until ten (10) days after giving such notice. Failure or delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default. (c) A default in the performance of this Agreement shall serve to toll the passage of time with respect to the Outside Closing Date. (d) Except as otherwise expressly provided in this Agreement, any failure or delay by either party in asserting any of its rights or remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies or deprive such party of its right to institute and maintain any actions or proceedings that it may deem necessary to protect, assert or enforce any such rights or remedies. 13. NOTICES Any and all notices required or permitted to be given hereunder shall be in writing and shall be personally delivered, sent by electronic mail, facsimile, recognized overnight delivery service or mailed by certified or registered mail, return receipt requested, postage prepaid, to the Parties at the addresses indicated below: SELLER/CITY: PURCHASER: City of Palm Springs 7 In Olivera LLC 3200 E. Tahquitz Canyon Way 412 N Oakhurst Dr., Apt#204 P.O. Box 2743 Beverly Hills CA 90210 Palm Springs, CA 92263-2743 Telephone: Telephone: (760) 323-8245 Facsimile: Facsimile: (760) 322-8360 Email: erik.k99(a-)gmai1.com Email: flinn.fagg(cDpalmspringsca.gov Attention: Eric Ketayi Attention: Flinn Fagg, Director of Planning Services Any Party may change its address by a notice given to the other party in the manner set forth above. Any notice given personally shall be deemed to have been given upon service, notices sent by overnight service shall be deemed received on the next business day and any notice given by certified or registered mail shall be deemed to have been given on the third (3rd) business day after such notice is mailed. AGREEMENT FOR PURCHASE AND SALE OF RIGHT OF WAY 7 at Olivera, LLC ti 10 Page 6 of 9 14. NON-ASSIGNABLE AGREEMENT This Agreement may not be assigned by either Party to any third party. 15. ENTIRE AGREEMENT, INTERPRETATION, AND MODIFICATION This Agreement reflects, contains, includes and supersedes any and all understandings, agreements, representations, inducements or promises between the Parties, oral or written, if any. Neither of the Parties relies upon any warranty, promise, representation, or agreement not contained in writing herein. No provision of this Agreement shall be interpreted for or against either of the Parties because its legal representative drafted such provision. This Agreement shall be construed as if jointly prepared by both Parties. Any modification of this Agreement must be in writing duly signed by both of the Parties. No waiver of any term or condition of this Agreement shall be a continuing waiver thereof. 16. SEVERABILITY If in the context of litigation, any provision of this Agreement is determined to be unenforceable in whole or in part for any reason, any remainder of such a provision and of the entire Agreement will be severable, and remain in full force and effect. 17. HEADINGS All section headings contained in this Agreement are for convenience or reference only, do not form a part of this Agreement and shall not affect in any way the meaning or interpretation of this Agreement. 18. JURISDICTION AND VENUE This Agreement and all questions relating to its validity, interpretation, performance, and enforcement shall be governed and construed in accordance with the laws of the State of California. In the event of any legal action to enforce or interpret this Agreement, the Parties agree that the venue shall be the Superior Court of California, County of Riverside, Indio Larson Justice Center. 19. EXECUTION OF AGREEMENT, EFFECTIVE DATE The Parties agree and acknowledge that they have executed this Agreement freely, voluntarily and upon the advice of counsel to the extent that any was desired. This Agreement shall be fully effective and binding upon the Parties as of the date and year first written above. AGREEMENT FOR PURCHASE AND SALE OF RIGHT OF WAY 7 at Olivera, LLC Page 7 of 9 1 20. TIME OF THE ESSENCE Time is of the essence of this Agreement and each of the Parties shall promptly execute all documents necessary to effectuate the intent herein and shall perform in strict accordance with each of the hereinabove provisions. 21. INDEPENDENT LEGAL COUNSEL. Each undersigned Party acknowledges that it has been represented by independent legal counsel of its own choice throughout all of the negotiations that preceded the execution of this Agreement or has knowingly and voluntarily declined to consult legal counsel; furthermore, each Party has executed this Agreement with the consent and on the advice of such independent legal counsel or knowingly and intelligently waived such consent and advice. 22. PARTIES DULY AUTHORIZED. Each of the Parties represents and warrants that it is duly authorized to enter into the transaction underlying this Agreement. 23. INDEPENDENT INVESTIGATION. Each Party to this Agreement has made an independent investigation of the facts pertaining to the provisions contained in this Agreement and all of the matters pertaining thereto as deemed necessary. SIGNATURES FOLLOW AGREEMENT FOR PURCHASE AND SALE OF RIGHT OF WAY 7 at Olivera, LLC Page 8 of 9 12 IN WITNESS WHEREOF, the Parties have executed this Agreement the day and year first written above. SELLERICITY: PURCHASER: CITY OF PALM SPRINGS, 7 IN OLIVERA LLC, a California charter city a California limited liability company and municipal corporation David H. Ready Eric Ketayi, City Manager Managing Member APPROVED AS TO FORM: APPROVED AS TO FORM: Edward Kotkin, Maureen Flannery, Esq., City Attorney Attorney for 7 in Olivera LLC ATTEST: Kathleen D. Hart, Interim City Clerk, MMC AGREEMENT FOR PURCHASE AND SALE OF RIGHT OF WAY 7 at Olivera, LLC Page 9 of 9 13 Exhibit A (Legal Description of the "Right of Way") That portion of Section 3, Township 4 South, Range 4 East, San Bernardino Base and Meridian, in the City of Palm Springs, County of Riverside, California, more particularly described as follows: A strip of land, thirty (30) feet wide, lying adjacent to the easterly boundary of those parcels of land identified by Assessor's Parcel Numbers 504-260-004 and 504-260-005, conveyed by Grant Deed recorded June 17, 2015, as Document No. 2015-0257244, records of the Office of the Recorder, Riverside County, California. Excepting therefrom any portion lying within Via Olivera, extending south of the southerly boundary of the parcel of land identified by Assessor's Parcel Number 504- 260-005. An exhibit depicting the strip of land to be conveyed is identified herein below: I I I I I I I I I I I I'':^:i•:i, , CITY PROPERTY PURCHASE OFFER BY 7 IN M 111111111'1'I'1'1'I'I I I I '�: �• �i i OLIVERA LLC (6343.24 SF-0.'146 AC.) 1114 504260.0041 I I i. �IItksM.. t t I1111111 ii v . w•'"� � 11{IIIIIIII111111111111 •. ii } � 1 11 1 1 1 1 1 1 1 1 1 1 1 1 1 1 Q 1 1 1 1 1 �`�- � 1 1 1 1 1 1 1 1 1 1 1 1 ••- i i +1� � � _- -: _ I I I I I I I t l l l l l l l l l l l l l l l t l ':•:- :. �i I .. ty 1 1 so4zso-oosl I 1 1 I 1 1 R: I11111 t I 1 I t 1 11111 I I 1 1 1 1 1 1 I I I I '• :: ::. .. ^�+ � w 1 1 1 1 1 1 1 1 1 1 1 1 I ;• ��, •4 1'I, �� •_. -' �..,. .e- + 11 1 I I 1 1 1 1 1 1 1 1 1 1 11 I III 1 1 1 l i J �� i i. " VIA OLIVERA -- EXHIBIT A AGREEMENT FOR PURCHASE AND SALE OF RIGHT OF WAY 7 at Olivera, LLC 14