HomeMy WebLinkAbout11/2/2016 - STAFF REPORTS - 1.E. iy
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"`'F°""%p City Council Staff Report
Date: November 2, 2016 CONSENT CALENDAR
Subject: APPROVAL OF A RIGHT OF WAY ACQUISITION AGREEMENT IN THE
AMOUNT OF $250,000 FOR THE SOUTH PALM CANYON DRIVE LOW
WATER CROSSING BRIDGE REPLACEMENT AT ARENAS CANYON
SOUTH, CITY PROJECT NO. 06-18, FEDERAL AID PROJECT NO. BR-
NBIL (502)
From: Marcus L. Fuller, Assistant City Manager/City Engineer
Initiated by: Engineering Services Department
SUMMARY
The City has successfully completed the right-of-way acquisition process to obtain
various permanent drainage and temporary construction easements required to
construct improvements associated with the South Palm Canyon Drive Low Water
Crossing Bridge Replacement at Arenas Canyon South, City Project No. 06-18, Federal
Aid Project No. BR-NBIL (502), (the 'Project'). This action approves a restated
Agreement previously approved on April 6, 2016, (Agreement No. 6839) to compensate
the owners for acquisition of the required drainage easement at the fair market value of
$250,000.
Federal funding has been awarded to the City for acquisition of required rights-of-way
for the Project. The federal funding will pay 88.53% of all costs, with the remaining
11.47% local match budgeted from the City's Gas Tax Fund. Federal funding for the
acquisition of right-of-way for the Project will lapse on June 30, 2017; action on this item
is required to ensure the City can complete the required acquisition of right-of-way.
The City Manager owns property within 500 feet of the Project, and is not participating
in any actions associated with the Project.
RECOMMENDATION:
1. Approve a restated Right-of-Way Agreement for Acquisition of Flood Control and
Drainage Easement, (A6839), in the amount of $250,000 with 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
ITEM NO. \�,
City Council Staff Report
November 2, 2016 -- Page 2
Approval of Restated R/W Agreement, CP 06-18
Trust Dated May 2, 2001 and Restated May 4, 2010, as to an undivided seventy
percent (70%) interest, all as tenants in common; and
2. Authorize the Assistant City Manager to execute all necessary documents, open
escrow, and pay for associated escrow and title costs associated with the right-of-
way acquisition.
STAFF ANALYSIS:
In 2005, the City applied for funding through the Highway Bridge Program (HBP) for
construction of a new bridge on South Palm Canyon Drive, just north of Bogert Trail.
The existing roadway is subject to flooding from the Arenas Canyon South drainage
channel; and the HBP provides federal-aid funding for construction of new bridges over
low water crossings. The City's application was in response to flooding from January
2005, as shown in the following photos:
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City Council Staff Report
November 2, 2016 -- Page 3
Approval of Restated RNV Agreement, CP 06-18
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City Council Staff Report
November 2, 2016-- Page 4
Approval of Restated R/W Agreement, CP 06-18
This flooding event completely closed the S. Palm Canyon Drive / Bogert Trail
intersection, restricting access into an area comprised of over 800 residential properties
in the southerly portion of the City. The City proposes to construct a new flood control
drainage structure to accept and convey the stormwater runoff generated in the San
Jacinto Mountains to the west, through a new box-culvert structure under S. Palm
Canyon Drive immediately north of Bogert Trail, directing the runoff into the adjacent
Indian Canyons Golf Course. The proposed solution includes reconstruction of existing
earthen berms located on the adjacent private property, allowing the existing
stormwater runoff to be channeled and directed into a new box-culvert structure in S.
Palm Canyon Drive which will be reconstructed and elevated to allow for construction of
a 5-cell 4'x14' box-culvert structure, 74 feet wide, within S. Palm Canyon Dr., as
generally shown in the fallowing figure.
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In 2005, the City applied for $4,055,000 in funding through the federal Highway Bridge
Program (HBP) for construction of the Project; the HBP will cover 88.53% of the
estimated total project cost of $4,581,000. Caltrans approved the City's HBP grant
application, and awarded the City federal funding for the Project. On October 4, 2006,
the California Department of Transportation, ("Caltrans"), as the agency responsible for
administering the City's federal grant funds, gave the City authorization to proceed with
the Project.
04
City Council Staff Report
November 2, 2016 -- Page 5
Approval of Restated RNV Agreement, CP 06-18
The Project requires acquisition of permanent drainage easements within the adjacent
private property identified by Assessor Parcel Number (APN) 514-460-033 located on
the west side of S. Palm Canyon Dr., including temporary construction easements, as
generally shown on the following Figure 3.
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City Council Staff Report
November 2, 2016—Page 6
Approval of Restated RM Agreement, CP 06-18
The project also requires a permanent drainage easement for the outlet structure into
the Indian Canyons Golf Course property, identified by APN 512-200-022, a property
that is Indian allottee property owned in trust by the Bureau of Indian Affairs (BIA).
However, a permanent drainage easement was previously acquired from the BIA for the
Project by a prior developer, and the owners in interest of the BIA easement have
agreed to transfer and assign their drainage easement to the City for the Project.
Specifically, the Project requires the following right-of-way acquisitions from the property
owners of APN 513-460-033:
• Permanent drainage easement of 2.39 acres shown as EM
• Temporary construction easement of 0.68 acres shown as M
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City Council Staff Report
November 2, 2016-- Page 7
Approval of Restated RAN Agreement, CP 06-18
Right-of-way negotiations with the property owners were initiated in 2015. The City
commissioned an independent full appraisal of the property, and a fair market value of
$250,000 was determined for the acquisition of the permanent drainage easement of
2.39 acres. At the June 3, 2015, City Council closed session meeting, staff presented
the fair market value appraisal for the required drainage easement, and received
direction to proceed with acquisition at a cost not to exceed $300,000.
In early 2016, the property owners agreed to waive their rights to compensation, and to
donate the permanent drainage easement of 2.39 acres to the City at no cost, on the
basis that the property owners were then processing a new entitlement with the City for
"Eagle Canyon", a residential subdivision for their property, which would require
construction of new on-site storm drain systems rendering the drainage easement to be
acquired by the City unnecessary at that time. To the extent an entitlement is approved
by the City for this property, and the developer proceeds to construct on-site storm drain
and flood control improvements in accordance with City approved plans, the permanent
drainage easement was to be vacated and quitclaimed by the City back to the property
owners at that time.
On April 6, 2016, the City Council approved right-of-way agreements with the property
owners, which included Agreement No. 6839 in the amount of $0 for acquisition of the
permanent drainage easement of 2.39 acres.
Subsequently, the property owners have withdrawn their entitlement applications from
the City for the "Eagle Canyon" residential subdivision, which would have rendered
superfluous the drainage easement to be acquired for the Project. Due to this fact, the
basis for the property owners' waiver of the fair market value of $250,000 for the 2.39
acre permanent drainage easement has changed, and although escrow has been
opened to acquire the permanent drainage easement, escrow has not closed and the
property owners have officially notified the City by letter dated September 9, 2016, of its
request to receive compensation for the fair market value of the drainage easement
previously established by the City at $250,000. A copy of the property owners' letter is
included as Attachment 1.
The previously approved right-of-way agreement (Agreement No. 6839) has been
revised to include provisions for payment to the property owners of the fair market value
of $250,000 for the permanent drainage easement, included as Attachment 2. A 500
feet radius from the subject property affected by these agreements is provided in the
following figure.
07
City Council Staff Report
November 2, 2016--Page 6
Approval of Restated R/w Agreement, CP 06-18
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500' Radius Map
ENVIRONMENTAL IMPACT:
Section 21084 of the California Public Resources Code requires Guidelines for
Implementation of the California Environmental Quality Act ("CEQA"). In accordance
with the CEQA Guidelines, the City acting as "Lead Agency' pursuant to CEQA,
previously completed an environmental analysis of the potential impacts resulting from
construction of the Project. On January 18, 2012, the City Council adopted Resolution
No. 23076, adopting and ordering the filing of a Mitigated Negative Declaration for the
Project. Subsequently, on January 23, 2012, staff filed a Notice of Determination with
the Riverside County Clerk and State Clearing House; a copy of the Notice of
Determination is included as Attachment 3.
The Project is funded, in part, by federal funds, requiring local oversight by the State of
California, Department of Transportation ("Caltrans"). As a federally funded project, the
Project is subject to environmental review pursuant to the National Environmental Policy
Act ("NEPA"). On February 6, 2012, Caltrans, acting as the lead agency pursuant to
NEPA, made an environmental determination that the Project does not individually or
cumulatively have a significant impact on the environment as defined by NEPA and is
excluded from the requirements to prepare an Environmental Assessment ("EX) or
Environmental Impact Statement ("EIS'), has considered unusual circumstances
pursuant to 23 CFR 771.117(b), and that it qualifies for a Categorical Exclusion in
08
City Council Staff Report
November 2, 2016-- Page 9
Approval of Restated RAN Agreement, CP 06-18
accordance with 23 CFR 771.117(d). A copy of the NEPA Categorical Exclusion issued
by Caltrans is included as Attachment 4.
The property from which the drainage easement is being acquired is not identified in
critical habitat designated by the U.S. Fish and Wildlife Service ("USFWS") for
endangered species, including Casey's June Beetle. As a matter of reference, the map
of the critical habitat for Casey's June Beetle adopted by the USFWS is shown in Figure
4 with the location of the Project identified.
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09
City Council Staff Report
November 2, 2016-- Page 10
Approval of Restated RW Agreement, CP 06-18
FISCAL IMPACT:
The fair market value for the acquisition of the 2.39 acre permanent drainage easement
was previously determined at $250,000 by the City's independent appraiser. At the June
3, 2015, City Council closed session meeting, staff presented the fair market value
appraisal for the required drainage easement, and received direction to proceed with
acquisition at a cost not to exceed $300,000. The property owners have agreed to be
compensated at the fair market value, and have not requested nor negotiated a higher
price. It is estimated that escrow and title fees of approximately $15,000 may be
incurred in addition to the acquisition cost for the drainage easement.
Funding for the Project is made possible by the federal HBP grant which will cover
88.53% of all eligible project costs. The federal funding programmed on the Project will
lapse if not expended within the current fiscal year on June 30, 2017. It is important to
complete the required right-of-way acquisition to ensure expenditures are recorded prior
to June 30, 2017, to ensure reimbursement by Caltrans. Sufficient funding is currently
available for payment of$250,000 for the drainage easement from the following accounts:
• Capital Project Fund, Account No. 261-4491-50221; $221,325
• Gas Tax Fund, Account No. 133-4298-50221; $28,675
Applicable escrow fees will be funded from these accounts in a similar split of 88.53% /
11.47%.
SUBMITTED
Marcus L. Fuller, MPA, P.E., P.L.S. Douglas Holland, Esq.
Assistant City Manager/City Engineer City Attorney
Attachments:
1. Property Owner Letter dated September 9, 2016
2. Agreement
3. CEQA Notice of Determination
4. NEPA Categorical Exclusion
10
ATTACHMENT 1
11
R U TAIN M.Katherine Jenson
Direct Dial:(714)641-3413
E-mail k cnscn r rutan.com
RUTAN 6 TUCKER. LLP J
September 9, 2016
VIA E-MAIL AND
FIRST CLASS MAIL
Marcus Fuller
Assistant City Manager/City Engineer
City of Palm Springs
320C E. Tahquitz Canyon Way
Palm Springs, CA 92262
Re: South Palm Canyon Drainage Improvement Project - Proposed Acquisition of
Easements from the Owners of the Eagle Canyon Property
Dear Mr. Fuller:
Rutan&Tucker, LLP, represents the owners ("Owners")of the 117+ acres located on the
west side of South Palm Canyon Drive, north of the Bogert Trail ("Eagle Canyon Property").
Pursuant to our telephone conference on September 7,2016, this letter explains the change
in circumstances that have caused the Owners of the Eagle Canyon Property to conclude that they
are no longer in a position to waive their entitlement to just compensation for the easements
requested by the City for the South Palm Canyon Drainage Improvement Project("Project").
The primary easement proposed to be acquired by the City has been valued by the City's
appraiser at$250,000. At one time, the Owners believed they would be in a position to waive the
right to that compensation. To understand the Owners' mindset at that time, a bit of history is
necessary. When the Owners bought the Eagle Canyon Property,it had an approved tentative map
for 230 housing units(75 single family and 155 townhouse type units)with a certified EIR for that
project. Those entitlements were consistent with the stipulated judgment that was entered into by
environmental groups, the City,and the prior land owner. That stipulated judgment restricted that
areas of the property that could be development. Despite having the right under the stipulated
judgment to build 230 units, the Owner, based upon input from the City and the community,
determined those entitlements were too dense and not comparable with the majority of housing
stock in the greater Andreas Hill area. The Owners voluntarily downsized and redesigned the
development plan for 160 single family lots utilizing the same overall development area.
At the time that the City approached the Owners regarding the acquisition easement for the
Project, the Owners still were holding the 230 unit entitlements, but were well into the planning
process for the reduced 160 unit development. City Planning staff(Edward Robinson) provided
positive feedback on the 160 unit development and noted that it was consistent and compatible
with the surrounding housing. He indicated staff support for the project and expressed the view
611 Anton Blvd., Suite 1400, Costa Mesa, CA 92626
PO Box 1950, Costa Mesa, CA 92628.1950 1 714.641.5100 1 Fax 714.546.9035 r9la1L16Aoa1
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Marcus Fuller
September 9, 2016
Page 2
that the community would appreciate the reduction in scope and scale of the development.
At the time the Owners met with the City to discuss the City's interest in the easement,the
Owners were under the impression that both the community and the City would support the
downsized project. There were discussions between the City and the Owners to the effect that,
once the 160 unit project was built, much of the easement area would be returned to the Owners
after they installed the replacement drainage facilities. The Owners were told that the return of the
property could be streamlined if they waived their right to compensation at this junction. This
concept is referenced in Section 7.13 of the Agreement.
As we now know, the 160 unit development caused a community and political firestorm.
The public officials involved in the workshops(and subsequent on-site protest)made it abundantly
clear that the 160 unit project had no hope of approval. Councilmembers were not even willing to
discuss the project with the Owners. This forced the Owners — at great expense — back to the
drawing board once again.
The Owners are now to the point of proposing an extremely downscaled project with 60+/-
lots and develops only 40 acres, leaving the remaining 77 acres in its natural state. The drainage
plan for that project no longer requires the installation of"Replacement Drainage Improvements"
that were described in Section 7.13 of the Agreement. As a result, the City reconveyance
described in Section 7.13 will no longer occur. This was the primary reason for the waiver of
compensation. Financially, the development will not provide the return on investment that the
160-unit project would provide. In simple terms, the Owners can no longer afford to waive their
entitlement to just compensation for the easement, and requiring them to do so now would be
unfair.
Since the acquisition has not been consummated, it is now appropriate to pay the Owners
the compensation that the City itself determined was "just." As an initial matter, we note that
Section 2.2 of the Right-of-Way Agreement for the Acquisition of Flood Control and Drainage
Easement ("Agreement") established April 30, 2016 as the closing date. Section 2.6 of the
Agreement noted that, if the closing did not occur within the required time frame, the Agreement
terminates. To our knowledge,there was no extension of that date.
Moreover, given that the new drainage design will no longer allow the Owners to reap the
one and only benefit offered by the City in exchange for the waiver of the right to just
compensation—the right to the return of the property at no cost upon the completion of the drainage
facilities for the 160-unit development-- there would be no consideration for the transaction. As
a result, the contract can no longer stand.
119/033136-OWI 13
1009171M I a0Y/U9!IL
RUTAN
RUT/ tTUCKER.L'.P
Marcus Fuller
September 9, 2016
Page 3
Finally, we note the duty of fairness the City is under when it acquires private property for
public projects. As explained by the California Supreme Court in City ofLos Angeles v. Decker
(1977) 18 Cal.3d 860, 871, "[t]he condemnor acts in a quasi-judicial capacity and should be
encouraged to exercise his tremendous power fairly, equitably and with a deep understanding of
the theory and practice of just compensation." In this regard, it is nnteworthy that the Owners had
no legal representation during the negotiation and documentation of the Agreement.
For these reasons, the Owners request that the Agreement reinstate the just compensation
payment of$250,000. The Owners stand willing to execute a revised agreement to that effect and
to expedite the closing so that the City may proceed with the Project.
Should you require any further information or documentation in order to process this
request, please let me know.
Very truly yours,
RUTAN &11C7 L P
M. Katherine Jenso
MKJ:lr
cc: Mr. Michael L. Cole
t iaroui36-aoi
10092709.1 a0 V916
ATTACHMENT 2
15
Project: 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. Owner desires to convey to City, and City desires to acquire from Owner, 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").
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
1. PURCHASE AND SALE.
1.1. Agreement to Buy and Sell. Subject to the terms and conditions set forth
herein, Owner hereby agrees to sell and convey to City, and City hereby agrees to
acquire and purchase 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.
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1.2. Purchase Price. The purchase price ("Purchase Price") for the
Easement shall be Two Hundred Fifty Thousand Dollars ($250,000) payable as cash at
the Close of Escrow as defined and provided for herein.
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 July 1, 2017, (the "Closing Date"), unless otherwise extended by mutual
agreement of the Parties. 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.
2.3.1 Conditions of City for Close of Escrow. The Close of Escrow
and City's obligation to purchase 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;
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(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;
(e) Owner shall have executed and submitted to Escrow Holder
the Affidavit of Non-Foreign Status By Transferor(Exhibit D); and
(f) 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.
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) The Purchase Price together with 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:
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(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);
(b) Subject to Section 2.5.1 below, an executed Affidavit of
Non-foreign Status in the form of Exhibit D attached hereto and such other
documentation necessary to exempt Owner from the withholding requirements of
Section 1445 of the Internal Revenue Code of 1986, as amended, and the regulations
thereunder; and
(c) Subject to Section 2.5.1 below, a Withholding Exemption
Certificate Form 593 as contemplated by California Revenue and Taxation Code
§18662 (the "Withholding Affidavit") duly executed by Owner.
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 Withholding. In the event that, pursuant to Section 2.4.2(b)
above, Owner fails to deposit with Escrow Holder the executed Affidavit of Non-foreign
Taxpayer Status which exempts Owner from the withholding requirements of Section
1445 of the Internal Revenue Code of 1986, as amended, and the regulations
thereunder, Owner hereby authorizes Escrow Holder to withhold ten percent (10%) of
the Purchase Price less any applicable closing costs and to report and transmit the
withheld amount to the Internal Revenue Service. Additionally, in the event that,
pursuant to Section 2.4.2(c) above, Owner fails to deposit with Escrow Holder any
applicable tax document which exempts City from California withholding requirements, if
any, Owner hereby authorizes Escrow Holder to withhold such additional percentage of
the Purchase Price of the Easement as is required by California law, and Escrow Holder
shall report and transmit the withheld amount in the manner required by California law.
By agreeing to act as Escrow Holder hereunder, Escrow Holder expressly agrees to
undertake and be responsible for all withholding obligations imposed pursuant to
Section 1445 of the Internal Revenue Code of 1986, as amended, and the regulations
thereunder and under any similar provisions of California law, and shall defend,
indemnify and hold City harmless in connection with such obligations.
2.5.2 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.
2.5.3 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
4 19
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.
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
5 20
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.
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
6 21
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
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
7 22
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. 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
8 23
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.
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. Attorneys' Fees. In the event that any party hereto institutes an action or
proceeding for a declaration of the rights of the parties under this Agreement, for
injunctive relief, for an alleged breach or default of, or any other action arising out of,
this Agreement, or the transactions contemplated hereby, or in the event any party is in
default of its obligations pursuant thereto, whether or not suit is filed or prosecuted to
final judgment, the non-defaulting party or prevailing party shall be entitled to its actual
attorneys' fees and to any court costs incurred, in addition to any other damages or
relief awarded.
7.11. 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.
9 24
7.12. 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
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.
10 25
7.13. 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.
7.14. Release. The total compensation to be paid by Buyer for the Easement is
the Purchase Price, which consideration covers any and all land and improvements,
attached or detached furniture, fixtures and equipment, loss of business goodwill, and is
the full and complete acquisition cost of the Easement. Buyer shall have no obligation
to Seller under the California Relocation Assistance and Real Property Acquisition
statutes and guidelines. Except for any breach of terms or conditions contained in this
Agreement, Seller waives and forever releases Buyer, including its successors, officers,
employees, attorneys, agents, representatives and anyone else acting on Buyer's
behalf, of and from any and all claims, demands, actions or causes of action,
obligations, liabilities, or claims for further compensation, known or unknown, based
upon or relating to the facts or allegations and circumstances arising from Buyer's
acquisition of the Easement. By such release, Seller expressly waives its rights, if any,
under California Civil Code Section 1542 which provides:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER
FAVOR AT THE TIME OF EXECUTING THE RELEASE WHICH IF KNOWN BY
HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HIS
SETTLEMENT WITH THE DEBTOR."
7.15. City Council Approval of Agreement. This Agreement is subject to the
approval of the City Council. If this Agreement remains unapproved by the City Council
then the parties will have no further obligation under this Agreement. If the City Council
approves this Agreement within less than thirty (30) days of the Closing Date set forth
herein, the parties agree to extend the Closing Date for an additional thirty (30) days.
[SIGNATURE PAGE FOLLOWS]
11 26
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 OWNER
CITY OF PALM SPRINGS, a California 4348 Lockwood Avenue LLC, a
charter city and municipal corporation, California Limited Liability Company
By:
Marcus L. Fuller Its: Managing member
Assistant City Manager
Attest: By:
Its:
James Thompson Michael L. Cole and Janet K. Cole,
City Clerk husband and wife as joint tenants
Approved as to form by: By:
Michael L. Cole
Douglas C. Holland, Esq. By:
City Attorney Janet K. Cole
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
Exhibit List
Exhibit A Legal Description of the Easement Area
Exhibit B - Depiction of the Easement Area
Exhibit C - Form of Grant of Easement Deed
Exhibit D -Affidavit of Non-foreign Taxpayer Status
12 27
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:
28
Exhibit "A" to the Easement Deed
LEGAL DESCRIPTION OF THE RIGHT OF WAY
29
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 13ERNARDINO 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
43049'29" 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 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 9001'35"A DISTANCE OF 48.84 FEET;
Page 1
30
12.THENCE NORTH 71028'51" 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 23°29'32"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.
y B. A
G �P
Na 27648
11/14i14 Civic.
MICKEY B. A UI E RCE 27648 CA+�
Page 2
31
Exhibit"B" to the Easement Deed
DEPICTION OF THE RIGHT OF WAY
32
EXHIBIT " B "
PERMANENT DRAINAGE AND TEMPORARY CONSTRUCTION EASEMENTS
INST. NO. 06-415382- - 44
INST. NO, 100198�
L11 Li7�' 30'
PDFR, r 1/2 � I o
, r ri, r r, U
1 513-460-033 uo g
l J Q
0.
NOTE: SEE SHEET 2 FOR l O
LINE AND CURVE DATA `YrJ O
V)
p�2
N I N'LY TCE
!S C11 N 20'54-18-WR
C4 BOGERT
TRAIL
ILA
J
DRAINAGE \�" � SLY TCE
EA5EAIEMT
L1 44.OQ'
POR, 1/4 LEGEND N 89'48'4V IN -P.O.C.
SEC,
J�' �� S.E. COR.
34 DRAINAGE EASEMENT TO BE ACQUIRED N.E. 1/4
T �� ,, �; �I r. AREA = 104,308 SF MORE OR LESS S.E. 1/4
1 , -r J,� r , r �, SEC. 34
513-460-032 TOMBS AARY ONSTRUCTION EASEMENT
AREA = 29,812 SF MORE OR LESS
6y B. AC P.O.C. POINT OF COMMENCEMENT
_ T.P.O.B. TRUE POINT OF BEGINNING
a 4 CITY OF PALM SPRINGS PREPARED BY: MA
S REVIEWED BY: JR
CIVIL PROJECT: S. PALM CANYON DRIVE SCALE: 1` = 100'
A APN'S 513-460-033
DATE: 3-20-15 SHEET 1 OF 2
33
EXHIBIT C
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 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,"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
34
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: Managing Member
By:
Its:
Michael L. Cole and Janet K. Cole, husband and wife as joint tenants
By:
Michael L. Cole
By:
Janet K. Cole
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
35
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 )
) ss.
COUNTY OF )
On before me, 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/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.
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.
Signature
My Commission Expires: This area for official notarial seal
36
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 )
) ss.
COUNTY OF )
On before me, 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/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.
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.
Signature
My Commission Expires: This area for official notarial seal
37
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 )
) ss.
COUNTY OF )
On before me, 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/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.
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.
Signature
My Commission Expires: This area for official notarial seat
38
EXHIBIT D
DO NOT RECORD. TRANSFEREE (BUYER)
DO NOT SEND MUST RETAIN FOR
TO IRS. SIX YEARS AFTER
THE TRANSACTION.
CERTIFICATION OF NON-FOREIGN
STATUS BY TRANSFEROR
1. Section 1445 of the Internal Revenue Code provides that a transferee
(Buyer) of a U. S. real property interest must withhold tax if the transferor (Seller) is a
foreign person.
2. In order to inform each transferee that withholding of tax is not required
upon disposition of a U. S. real property interest by
(hereinafter referred to as "the
Transferor"), the undersigned hereby certifies, and declares by means of this
certification, the following on behalf of the Transferor:
A. The one item marked below is true and correct:
(1) The Transferor is not a foreign individual, foreign
corporation, foreign partnership, foreign trust, or foreign
estate (as these terms are defined in the Internal
Revenue Code and Income Tax Regulations).
(11) The Transferor is a corporation incorporated under the
laws of a foreign jurisdiction but has elected to be
treated as a U. S. corporation under Section 897(i) of
the Internal Revenue Code, AND HAS ATTACHED TO
THIS CERTIFICATE A TRUE AND GENUINE COPY
OF THE ACKNOWLEDGMENT OF SUCH ELECTION
ISSUED BY THE IRS.
B. The Transferor's social security number is
C. The Transferor's address is
3. The Transferor understands that this certificate may be disclosed to the
Internal Revenue Service by the transferee and that any false statement contained in
this certification may be punished by fine or imprisonment (or both).
4. The Transferor understands that each transferee is relying on this
certificate in determining whether withholding is required and each transferee may face
liabilities if any statement in this certificate is false.
39
5. The Transferor hereby indemnifies each transferee, and agrees to defend
and hold each transferee harmless, from any liability, cost, damage, or expense which
such transferee may incur as a result of:
A. the Transferor's failure to pay any U. S. Federal income tax which
the Transferor is required to pay under applicable U. S. law, or
B. any false or misleading statement contained herein.
Under penalties of perjury, I declare that I have examined this certification and to
the best of my knowledge and belief it is true, correct, and complete; I further declare
that I have authority to sign this document on behalf of the Transferor.
EXECUTED in County, State of
on
Transferor:
By:
Title:
40
ATTACHMENT 3
41
Notice of Determination Appendix D
To: From:
JZ Office of Planning and Research Public Agency: City of Palm Springs
For U.S.Mail: Sneer Address: Address: 3200 E.Tshquitz Canyon Way
Palm Springs CA 92262
P.O.Box 3044 1400 Tenth St. ._
Contact: Marcus Fuller —W, , _ r—•,=
Sacramento,CA 95812-3044 Sacramento,CA 95814 Phone: (7601323-82534744 ^�` r'- =rn
RI County Clerk JAN 2 3 201 j
County of. Riverside Lead Agency(if different from above):
Address: 2724 Gateway Drive �AR tvw v tYn CRr'
Riverside CA92507 Address:
oept�t,
Contact: _
Phone:
SUBJECT:Filing of Notice of Determination in compliance with Section 21108 or 21152 of the Public Resources
Code.
State Clearinghouse Number(if submitted to State Clearinghouse): 20011 D1060
Project ntle: South Palm Canyon Drive Low Water Crossing Bridge Replacement at Arenas Canyon South
Project Location (include county): S Palm Canyon Dr.at Bogert Try Palm Spfings, CA
Project Description:
Replace the existing four lane low water crossing at S.Palm Canyon Dr.and Bogert Trail,with anew four lane bridge structure consisting of a five-cell
reinforced concrete box culvert with 14 foot wide by 4 foot high cells.S.Palm Canyon Dr.will be raised 2.5 feet,and the existing Arenas Canyon South
tributary will be excavated up to 5 feet and channellzed.New levees will be constructed with rock slope protection and cutoff walls to prevent erosion.
This is to advise that the of ehlt S has approved the ' - blojg
Lead Agency or Responsible Agency filed ltornlNtc Nteruilnatiori
January18 2012 and has made the following determinations regarding the above described project: o 3fe y 21152
(Date)
I.The project[El will ®will not]have a significant effect on the environment. JAN 2 3 2012
2. ❑ An Environmental Impact Report was prepared for this project pursuant to the provisiordear'MA.
® A Negative Declaration was prepared for this project pursuant to the provisions of CEQ4
3.Mitigation measures[®were [:]were not]made a condition of the approval of the projecC 777777��""""`D4trl
4.A mitigation reporting or monitoring plan[®was ❑ was not]adopted for this project.
5.A statement of Overriding Considerations[❑was ®was not]adopted for this project.
6.Findings[®were ❑were not]made pursuant to the provisions of CEQA.
This is to certify that the final EIR with comments and responses and record of project approval,or the negative Declaration, is
available to the General Public at: 96Ot Lahti Wn X 3 Tahguitz Canyon Wav Palm Smogs CA 92262
Signature(Public Agency} l .r f. a D Tine Asst. Dir.of Public Works/Asst.City Engineer
Date CT tL/� 11 7-0 [ ��_ Date Received for filing at OPR__"._,___ .
���rsrV
Authority cited:Sections 21083,Public Resources Code.
Reference Section 21000-21174,Public Resources Code, JAIV 2" Revised 2005
s 20rz
6TAT?04 Ie lryp
HOUSE
42
STATE OF CALIFORNIA-THE RESOURCES AGENCY
DEPARTMENT OF FISH AND GAME
ENVIRONMENTAL FILING FEE CASH RECEIPT
Receipt#: 201200035
State Clearinghouse#(ff applicable): 2001101060
Lead Agency: CITY OF PALM SPRINGS Date: . 01/23/2012
County Agenry ofFlimg: Riverside Document No: 201200035
Pro/ecrTjtle. SOUTH PALM CANYON DRIVE LOW WATER CROSSING BRIDGE REPLACEMENT
Project Applicant Name: DOKKEN ENGINEERING Phone Number:
Project Applicant Address.• 2365 IRON POINT ROAD SUITE 200 FOLSOM,CA 95630-8709
Project Applicant: Private Entity
CHECK APPLICABLE FEES:
❑Environmental Impact Report
®Negative Declaration 2101.50
❑Application Fee Water Dlwrnon(Slate Water Resources Control Board Only)
❑Project Subject to Ceriffied Regulatory Programs
®County Administration Fee $64•00
❑Project that is esemp1fr m fees(DFG No vfect Determination(Form Attached))
❑Project that is exempt fromfees(Notice of Exemphnn)
Total Received 2165.50
d Pff/j/
Signature and title afptrson receiving payment:/i
Notes:
RECEIVED
JAN 2 3 2012
STATE CLEARING HOUSE
43
ATTACHMENT 4
44
CATEGORICAL EXEMPTION/CATEGORICAL EXCLUSION DETERMINATION FORM
08-RIV-Palm Springs NIA NIA 8R-NBIL(502)
Dist.-Co.-Rte.(or Local Agency) P.MlP.M. EA.(State project) Federal-Aid Project No-(Local project)/Proj.No.
PROJECT DESCRIPTION:
(Briefl describe ro ect, purpose,.location.limits,right-of-way requirements,and activities involved.
Enterproject description in this box. Use Continuation Sheet,if necessary
The City of Palm Springs,in cooperation with the California Department of Transportation,proposes to replace the existing low
water crossing on South Palm Canyon Drive at Arenas Canyon South tributary,located in the City of Palm Springs,with a four-lane
bridge structure to provide all-weather access.The existing low water crossing is located immediately north of the intersection of
South Palm Canyon Drive and Bogert Trail.Currently,access is disrupted on South Palm Canyon Drive during storm events due to
flooding.The flooding creates access restrictions and safety problems along the roadway..The proposed project is needed to
address drainage and flooding within the Arenas Canyon South tributary at the South Palm Canyon Drive low-water crossing. The
purpose of this project is to provide continuous access and improve drainage along South Palm Canyon Drive. (see continuation
sheet)
CEQA COMPLIANCE(for State Projects only)
Based on an examination of this proposal,supporting information,and the following statements(See 14 CCR 15300 et seg.):
• If this project falls within exempt Gass 3,4,5,6 or 11,t does not impact an environmental resource of hazardous or critical concern
where designated,precisely mapped and officially adopted pursuant to law.
• There will not be a significant cumulative effect by this project and successive projects of the same type in the same place,over time.
• There is not a reasonable possibility that the project will have a significant effect on the environment due to unusual circumstances.
• This project does not damage a scenic resource within an officially designated state scenic highway.
• This project is not located on a site included on any list compiled pursuant to Govt.Code§65962.5("Cortese List").
• This project does not cause a substantial adverse change in the significance of a historical resource.
CALTRANS CEQA DETERMINATION (Checkone)
❑ Exempt by Statute.(PRO 21080[b];14 CCR 15260 et seq.)
Based on an examination of this proposal,supporting information,and the above statements,the project is:
❑ Categorically Exempt.Class_ (PRO 21084; 14 CCR 15300 at seq.)
❑ Categorically Exempt.General Rule exemption.[This project does not fall within an exempt class,but it can be seen with
certainly that there is no possibility that the activity may have a significant effect on the environment(CCR 15061[b][3])
N/A NIA _
Print Name:Environmental Branch Chief Print Name:Project Manager/DLA Engineer
NIA N/A
Signature Date Signature Date
NEPA COMPLIANCE
In accordance with 23 CFR 771-117,and based on an examination of this proposal and supporting information,the State has
determined that this project:
• does not individually or cumulatively have a significant impact on the environment as defined by NEPA and is excluded from the
requirements to prepare an Environmental Assessment(FA)or Environmental Impact Statement(EIS),and
• has considered unusual circumstances pursuant to 23 CFR 771.117(b)
(h•t0/iwww.fhwa.dot.gov/heN23c'r771.htm-sec.771.117Y.
In non-attainment or maintenance areas for Federal air quality standards,the project is either exempt from all conformity requirements,
or conformity analysis has been completed pursuant to 42 USC 7506(cl and 40 CFR 93.
CALTRANS NEPA DETERMINATION (Check one)
® Section 6004: The State has been assigned,and hereby certifies that it has carved out,the responsibility to make this
determination pursuant to Chapter 3 of Title 23,United States Code,Section 326 and a Memorandum of Understanding(MOU)
dated June 7,2010,executed between the FHWA and the State. The State has determined that the project is a Categorical
Exclusion under:
❑23 CFR 771.117(c):activity(c)(__j
®23 CFR 771.117(d):activity(d)L3,
❑Activity_ listed in the MOU betveaen F14WA and the State
❑ Section 6005: Based on an examination of this proposal and supporting info abon,the State has determined that the project
is a CE under Section 6005 of 23 U.S.C.327.
Aaron Burton �7�✓ ' C
Print Name:E -tone h Chief Print Na roje ManagerlDlA Engineer
" i-3f-2or2 Z_ 6-- /Z
re Date gnature Date ,.
Briefly list environmental commitments on continuation sheet. Reference additional information,as appropriate(e.g.,air quality studies.
documentation of conrornity exemption,FHWA conformity determination if Section 6005 project;§106 commitments;§4(f);§7 results;
Wetlands Finding;Floodplain Finding;additional studies;and design conditions).Revised June 7,2010
Pagc I of 4
45
CATEGORICAL EXEMPTION/CATEGORICAL EXCLUSION DETERMINATION FORM
Continuation Sheet
08-RIV-Palm Springs BR-NBIL(502)
Dist.-Co.-Rte.(or Local Agency) P.WRM. E.A.(State project) Federal-Aid Project No.(Local project)/Proj.No.
Continued from page 1: Existing berms currently in the floodpiain upstream of the proposed structure will be integrated into new
flood control levees to direct runoff under the new bridge structure.Scour protection will be incorporated into the Project and will
include rock slope protection and cutoff walls.The rock slope protection will armor the levees,channel flowline and bridge
abutments,while the cutoff walls will be placed at the upstream and downstream ends of the rock slope protection.There are
numerous existing underground utilities located in the project area.Some utilities will be protected in place(existing water and
sewer)and others will be relocated as part of the project(gas,telephone,cable,and fiber optic). Right-of-way impacts include
permanent drainage easements covering the limits of the proposed levees,and temporary construction easements throughout the
project area.The project will be staged to allow at least one lane of traffic to remain open in each direction for the duration of
construction,as no viable detours exist.The project may employ a staging area on the northern end of the project to the east of the
roadway.
Technical Study Results
(Note:Technical studies were not necessary for Aesthetics,Air Quality, Community Impacts,Farmlands,Greenhouse Gases,
Traffic,Visual Impacts,or Water Quality.)
Air Qualtiv
Based on the Preliminary Environmental Study(PES).Air Quality only needed discussed in the environmental document.The
following measure will be implemented to ensure that there are not air quality impacts during construction.
. Avoidance,Minimization,and/or Mitigation Measures:
AGA:The construction contractor shall comply with Caltrans'Standard Specifications Section 7-1.01F and Section 10 of
Caltrans'Standard Specifications(2006).Section 7-1.01F specifically requires compliance by the contractor with all
applicable laws and regulations related to air quality,including air pollution control district and air quality management
district regulations and local ordinances.Section 10 is directed at controlling dust by applying either water or dust
palliative,or both,
Biological Resources
. Natural Environmental Study approved 9/0 712 01 0
• Avoidance,Minimization,and/or Mitigation Measures:
B10.1:In the project area,abandoned roadway features and other hardscape shall be removed.Once the project is completed,
the project area shall be revegetated with native species found onshe.These species include,but are not limited to,the
following:cheesebush,creosote bush,sallbush,cholla cactus,desert lavender,white bursage,brittle-bush,suncups,
desert sand verbena,phacelias,etc.
BI0-2:The project footprint shall be minimized by using ESA fencing that restricts the area of work.
13I0-3:Temporary construction staging areas and access roads shall be strategically placed to avoid and/or minimize impacts to
SMWSS and SMWSS-D resources,when possible.ESA fencing shall be installed in coordination with a biologist in order
to minimize the construction footprint to avoid and/or minimize impacts to sensitive habitat areas.
8104:Compensatory mitigation and replacement ratios for Impacts to SMWSS and SMWSS-D will be consistent with the THCP,
the ratio for permanent impacts will be 2:1 and the ratio for temporary impacts will be 1:1.Mitigation credits will be bought
from the THCP for impacts to the Valley Floor Conservation Unit.A conceptual mitigation plan describing the
compensatory mitigation program,whether it be restoration or purchase of credits,will be developed and submitted to the
Tribe along with payment of the mitigation fees.
810-5:Should pre-construction surveys or work associated with construction discover the presence of any of these species,
habitats would be avoided,as feasible,using Environmental Sensitive Area(ESA)fencing to clearly define the Iknfls of
disturbance.
810.6: Temporarily impacted habitat would be revegetated on-site with similar native vegetation at a proposed 1:1 ratio.
BI0-7: To ensure compliance with META and CFG code,vegetation removal and work should be avoided outside the nesting
season(defined as February 15—August 15). If this is not possible and vegetation removal or work is to occur during the
nesting season,a pre-construction survey shall be conducted.The preconstruction survey shall be performed by a
qualified biologist,to determine the presence of nesting birds and ensure active nests are not directly or indirectly
impacted during construction.The pre-construction survey area will include the limits of the project impact area plus a
300-ft buffer.If work is planned to begin in an area during the nesting season(February 15—August 15),all vegetation
removal shall be completed within two weeks of the nesting survey if the survey determines no active nests are present.
BI0-B:If the nest of a protected bird is found,the perimeter shall be flagged and a qualified biologist will coordinate with USFWS
and CDFG to determine an appropriate bufferdistance for protection of the nest.The contractor shall stop work in the
nesting area until the buffer is established and is prohibited from conducting work that could disturb the birds(as
determined by the project biologist and in coordination with wildlife agencies)in the protected area until the biologist has
determined that nesting activities are complete.
BIO-9:Temporary staging areas,storage areas,and access roads involved with this project will take place to the extent feasible,
in the area of direct impact.Access to the project she will be from the existing South Palm Canyon Drive.
13I0-10,Consistent with the THCP,a pre-construction survey for burrowing owl will be performed within 30 days prior to
commencing construction activities.The survey will take place within the proposed Project limits of disturbance,including
a 100-ft buffer where legal access is available;otherwise a visual survey shelf be conducted out to 100 feet. The biologist
will be qualified to identify burrowing owl sign(scat,pellets,tracks)as well as the species by sight and sound.The survey
will occur when the species is known to be most active(i.e.,one hour before sunrise to two hours after or two hours
before sunset to one hour after),All potential burrows will be mapped as well as an individuals si h[ed.
Page,2 of 4
46
CATEGORICAL EXEMPTIONICATEGORICAL EXCLUSION DETERMINATION FORM
Continuation Sheet
BID-11:If burrowing owls are found on-site during the pre-construction survey:
If the burrows are occupied during the non-breeding season,owls shall be removed through passive relocation.A permit
is not required for passive relocation but the procedure shall be conducted by a qualified biologist.The biologist must
ensure through appropriate means(e.g.,monitoring for owl use,excavating burrows)that the burrows to be impacted are i
not being used.Unoccupied burrows shall be collapsed priorto owl removal from the occupied burrows,so that the owls
cannot reoccupy the Project site.Owls should be excluded from burrows in the construction area and within an
appropriate buffer zone by installing one-way doors in burrow entrances of other technique as deemed appropriate.Once '
it has been determined that all owls have left the burrow,the burrow shall be collapsed to prevent reoccupancy.
Occupied burrows during the breeding season(February 1 through August 31)shall not be disturbed unless a qualified
biologist verifies through non-invasive methods that either:(a)the birds have not begun egg laying and incubation;or(b)
that juveniles from the occupied burrows are foraging independently and capable of independent survival.
A Burrowing Owl Mitigation and Monitoring Plan will be submitted to CDFG for review and approval prior to relocation of
owls.
All relocation shall be approved by CDFG.The permitted biologist shall monitor the relocated owls a minimum of three
days per week for a minimum of three weeks.A report summarizing the results of the relocation and monitoring shall be
submitted to the Department within 30 days following completion of the relocation and monitoring of the owls.
BIO-12:If neither active burrows(e.g.,sign,scat;feathers)nor individual birds are identified during the preconstruction survey,no
additional mitigation is required.
BIO.13:Construction activities shall be limited to daylight hours.
BIO-14:If initial project grading takes place between July-September(the time period when northern red-diamond rattlesnakes
are bom)a pre construction survey will take place no more than 5 days prior to clearing/grubbing. If the species is found,
CDFG will be contacted to establish appropriate avoidance and minimization measures.
810-15:The project biologist shall conduct a pre-construction meeting to ensure that construction crews are informed of the
approved limits of disturbance and of the sensitive animals and habitats in the vicinity.The contractor and construction
personnel shall be trained on the biological resources associated with the project.At a minimum,the training shall include
1)the purpose for resource protection;2)a description of sensitive species and their habitats;3)environmentally
responsible construction practices;4)the protocol to resolve conflicts that may arise at any time during the construction
process;and 5)the general provisions of FESA and CESA,the need to adhere to the provisions of FESA and CESA,and
the penalties associated with violation of FESA and CESA.
810-16:Prior to clearing/grubbing,grading,and/or construction activities within or adjacent to native habitats on the Project site,a
qualified biologist shall supervise the installation of temporary construction fencing along the approved limits of
disturbance,including construction staging areas and access routes,to prevent additional habitat impacts into adjacent
habitats to be avoided.Fencing shall be installed in a manner that does not impact habitats to be avoided.
810-17:Native rill will be utilized whenever possible.
BID-18:In compliance with the Executive Order on Invasive Species,EO 13112,and subsequent guidance from the Federal
Highway Administration,the landscaping and erosion control included in the project will not use species listed as noxious
weeds. In areas of particular sensitivity,extra precautions will be taken if invasive species are found in or adjacent to the
construction areas. These include the inspection and cleaning of construction equipment and eradication strategies to be
implemented should an invasion occur.
810-19:Requirements from the State Water Resources Control Board would be filed in accordance with the NPOES general
construction activity storm water discharge permit(Section 402).Requirements from this permit,BMPs specified in the
Caltrans'Storm Water Quality Handbook-Planning and Design Guide,would be identified for water quality impacts that
have the potential to occur during construction.
Cultural Resources
Historic Properties Survey Report(HPSR)was approved 4/13/2011
• Historic Property Survey Report(HPSR/ASR)approved 410 512 01 1..In the HPSR/ASR,Caltrans determined"no properties
requiring evaluation are present within the Project APE"and"As assigned by FHWA,Caltrans has determined a Finding of No
Historic Properties Affected,according to 36 CFR 800.4(d)(1),is appropriate for this undertaking."
• Avoidance,Minimization,and/or Mitigation Measures:
CUL-1:A cultural monitor shall be present during ground disturbing construction activities.
CUL-Z If cultural materials are discovered during construction,all earth-moving activity within and around the immediate
discovery area will be diverted until a qualified archaeologist can assess the nature and significance of the find.
CUL-3:If human remains are discovered,State Health and Safety Code Section 7050.5 states that further disturbances and
activities shall cease in any area or nearby area suspected to overlie remains,and the County Coroner contacted.
Pursuant to Public Resources Code(PRC)Section 5097,98,K the remains are thought to be Native American,the
coroner will notify the Native American Heritage Commission(NAHC)who will then notify the Most Likely Descendent
(MLD). At this time,the person who discovered the remains will contact John Eddy,California Department of
Transportation District 6,so that they may work with the MLD on the respectful treatment and disposition of the remains.
Further provisions of PRC 5097.98 are to be followed as applicable.
Hazards and Hazardous Materials
• Hazardous Waste Initial Site Assessment(ISA)was approved 5/10/2010
• Avoidance,Minimization,and/or Mitigation Measures:
HAZ-1:To avoid impacts from pavement striping during construction,testing and removal requirements for yellow striping and
pavement marking materials shall be performed in accordance with Caltrans Standard Special Provision 15.300
REMOVE TRAFFIC STRIPE AND PAVEMENT MARKINGS.If the pavement striping will be removed in conjunction with
the existing pavement(i.e.pavement demolition with striping attached versus grinding for striping removal),the striping
can be considered non-hazardous.
HAZ-2:As is the case for any project that proposes excavation,the potential exists for unknown hazardous contamination to be
revealed during project construction(such as previously undetected hazardous materials/waste in the soil/rubble piles or
potential explosive threat if the subsurface natural gas pipeline is ruptured during construction), At the time of this Initial
Page 3 of
47
CATEGORICAL EXEMPTIONICATEGORICAL EXCLUSION DETERMINATION FORM
Continuation Sheet
Site Assessment,there were no documented leaks or soil/groundwater contamination issues related to the existing gas
pipelines or soilfrubble piles within or immediately adjacent to the study area and no further investigation of these
pipelines or soil/rubble piles are recommended. However,for any previously unknown hazardous wastelmaterial
encountered during construction,the procedures outlined the Caftrans Hazards Procedures for Construction shall be
followed.
Noise
• Noise Technical Memorandum.approved 10/052010
• Avoidance,Minimization,and/or Mitigation Measures:
NOI.1:The Contractor shall follow Caftrans Section 14-8.02 of the Standard Specifications.As such:
Do Not exceed 86 dBA at 50 feet from the job site activities from 9 p.m.to 6 a.m.Use an alternative warning
method instead of a sound signal unless required by safety laws.
Equip an internal combustion engine with the manufacture-recommended muffler.Do not operate an internal
combustion engine on the job with without the appropriate muffler.
NO[-2:The Contractor shall follow Caftrans Section S5-310 of the Standard Special Provisions.As such:
• Do not operate construction equipment or run the equipment engines from 7:00 p.m.to 7:00 a.m.or on
Sundays except you may operate equipment within the project limits during these hours to:
Service Traffic control facilities
Service construction equipment
NOI-3:Provide 1 Type 1 sound level meter and 1 acoustic calibrator to be used by the Department until contract acceptance.
Provide training by a person trained in noise monitoring to 1 department employee designated by the engineer.The
sound level meter must be calibrated and certified by the manufacturer or other independent acoustical laboratory before
delivery to the Department.Provide annual recalibration by the manufacturer or other independent acoustical laboratory.
The sound level meter must be capable of taking measurements using the A-weighting network and the slow response
settings.The sound measurement microphone must be fitted with a windscreen.The Department returns the equipment to you at contract acceptance.
NOIA:As directed by the City,the contractor shall implement appropriate additional noise mitigation measures,including(but
not limited to)changing the location of stationary construction equipment,turning off idling equipment,rescheduling
construction activity,notifying adjacent residents in advance of construction work,and installing acoustic barriers around
stationary construction noise sources.
NO[-5:The Contractor shall follow Ordinance 1581,Article 1 and Ordinance 1114.Article 1,1980,of the Palm Springs Municipal
Code,which states construction noise levels would not reach levels of such intensity or quality that it disturbs the peace
and quiet of any other person of normal sensitivity from 7 p.m.to 7 a.m.on weekdays and 5 p.m.to 8 a.m.on weekends,
unless a permit from the City is obtained.
REGULATORY PERMITS REQUIRED
- Clean Water Act Section 402 National Pollution Discharge Elimination Systems
(Waters on the project site do not qualify as waters of the U.S.or State;therefore,Section 401 and 404 of the Clean Water-Act and
Section 1502 of the California Fish and Game Code do not apply,)
Pngc 4 of 4
48
Cindy Berardi
From: Gregory Seller <greggseller@gmail.com>
Sent: Tuesday, November 01, 2016 8:12 AM
To: CityClerk
Subject: Oswit Canyon
Attachments: PastedGraphic-3.pdf
Good Morning. I am a homeowner at 3659 Andreas Hills Drive in the Andreas Hills area of Palm Springs. I
would like to register my strong opposition to the proposed development at Oswit Canyon. It would be an
ecological and logistical disaster and I encourage the City Council to deny any effort to develop this parcel of
land.
I plan to vigorously support efforts to block this development.
Sincerely,
Gregory E. Seller
3659 Andreas Hills Drive, Unit A
Palm Springs, CA 92264
Gregory Seller Consulting, LLC
Thought Leadership for Public Pension Policy I Plan Architecture & Design i Pension
Advocacy & Consulting
greggsellerag mail.corn
www..qre,goryseller.com I www.gregorvsellerauthor.com
Cindy Berardi
From: Arnie Meltz <carlife616@aol.com>
Sent: Monday, October 31, 2016 2:27 PM
To: CityClerk
Subject: Oswit Canyon
This development is a nightmare for all of the residents in Andreas Hills. We are being asked to pay for expenses-flood
control dam-the developer should be paying yet alone ruining our area and the city of Palm Springs that I love. My family
has been in Palm springs since 1970 and now this!!!!!!!!!!!!!!!
What about a current environmental report for this project?When are we going to leave some of the beauty that we love?
PLEASE STOP THIS PROJECT FROM GOING FORWARD—SAVE OUR NEIGHBORHOOD
Arnie Meltz
carlife616(a)aol.com
1
Cindy Berardi
From: Jill Vega <kenyaecho@gmail.com>
Sent: Monday, October 31, 2016 3:35 PM
To: CityClerk
Subject: Save Oswit Canyon!!
Attachments: Save Oswit Canyonjpg
Please forward to all city council members.
Thank you!
Dear City Council Members,
We don't want to be IA.We don't want to be Orange County. Let's be different than everywhere else.
Palm Springs still has wild areas surrounding our homes. We must keep it that way. People flock here from all over because of
the natural, peaceful beauty that surrounds us.Why must we continue to allow more and more building that is destroying more
and more of our natural eco system?We don't want to be like everyone else!We are happy the way we are.
The developers don't care about our endangered wildlife.They don't care about all of the Big Horn Sheep who live in the canyon
-and the coyotes and rabbits and birds.Where will they go? Is it right for us to continue to allow developers to evict these
precious lives?They aren't concerned with the plant life that will be destroyed when they plow and dig to build. How do we know
there aren't endangered species of plants there?There are insects that thrive there. Where will they go?The developers don't
care. They care about money and profits. Where is the water coming from that is necessary to build and then operate these
homes?To look at the depiction of the area in question is shocking.The canyon will be gone forever.
There are so many vacant homes here in Palm Springs. What can't we be different and let people buy what is already here?
Buying and remodeling homes will raise property values.
I am asking that another EIR be completed and a survey of the endangered Casey's June Beetle be conducted before anything
is done with that land. WHen we run out of places like this, people will stop coming. Please let's save this beautiful canyon for
our future and the future of our wildlife.
Keep Oswit Beautiful!
Thank you for your consideration,
Jill Vega--The Well Balanced Pet
516-978-7182
Palm Springs,CA
We're on Facebook:-https://www.facebook.com/TheWellBalancedPetCare
"When llook into the eyes of an animal,I do not see an animal. I see a living being. I see a friend. I feel a soul."—Anthony
Douglas Williams
1
Cindy Berardi
From: Barb Balbach <bbalbach@me.com>
Sent: Monday, October 31, 2016 12:48 PM
To: CityClerk
Subject: Prevention of Oswit Canyon Development
Dear Mayor Moon and City Council Members,
I ask that you prevent in whatever manner possible the housing development proposed by an Orange
County investment group. I understand that the last environmental impact report for Oswit Canyon is
very old, ten years or so, and should be updated. But more than that is the beauty of this canyon and
the ecosystem it supports. I see many hikers and others enjoying this land daily. Even in the
summer people are enjoying the trails at dawn and dusk. It is amazing we still have free access to
such an incredible terrain in Palm Springs. I also hike the Lykken trail regularly, and have hiked the
Oswit Canyon trail as well.
I live next to the Lykken trail and Oswit Canyon. The canyon is a beautiful view to wake up to in the
morning and enjoy day and night. I see/hear the amazing variety of birds year round and especially
during migration. I also love listening to the great horned owl's hoots very early many mornings. There
are also many quail, roadrunners, hummingbirds, etc., regularly frequenting my desert landscaped
yard. It is difficult to imagine residential development not disrupting the beauty of Oswit as I know it. I
have also photographed the bighorn sheep here and watched bobcats cross my patio. I have viewed
and heard the coyotes from my home. A beautiful place to live, to be sure.
Thank you for taking the time to read this long email. I hope you will support the prevention of any
Oswit Canyon development.
Sincerely,
Barbara Balbach
i
Cindy Berardi
From: Paula Gibbs <Paula@paulagibbs.com>
Sent: Monday, October 31, 2016 9:18 AM
To: CityClerk
Subject: Oswit Canyon - Please forward to to all council members
As a resident of Palm Spring who moved here in part because of the beautiful desert scenery and hiking I am
appalled that the City Council is enabling the developer/owner of Oswit Canyon to move forward with building
a housing tract(a housing tract!) on this environmentally sensitive land.
The City Council is well aware of the large opposition to this development. By this point they should also be
aware that this is an area heavily used by local and visiting hikers, artists and nature lovers.
How can the City Council allow Palm Springs to become a place like any other rather than the preserve its
unique beauty? How? City Council is well aware that this area is environmentally sensitive and that the EIR is
out dated. They have tools at their disposal to prevent the loss of this beautiful area. There should be no more
development on alluvial fans!
LISTEN TO YOUR CONSTITUENTS! WE DO NOT WANT THIS DEVELOPMENT! REQUIRE A NEW
EIR NOW!
Warm Regards,
Paula Gibbs
PaulaGibbsArt.com
Facebook.com/PaulaGibbsArt
r
Cindy Berardi
From: Robert Bell <bobrobertbell@gmail.com>
Sent: Monday, October 31, 2016 10:16 AM
To: CityClerk
Subject: Save Oswit Canyon!
Please pass this on to all council members.
I do not want to watch Palm Springs become another Orange County.
I do not want a housing tract built on this environmentally sensitive area.
The area has a very old environmental impact report (EIR)and the City Council should require a new one. This is now a documented
home to bighorn sheep which are on the endangered species list and nothing should disturb their habitat(another reason for a new
EIR.
I am aware that this area is heavily used by local and visiting hikers/nature lovers/artists/photographers and it should be preserved for
ALL people to enjoy, not just an Orange County developer who will come in, ravage the land and leave!
This is the last unprotected Alluvial Fan canyon that we have, it CAN NOT be destroyed!
Thank You, Robert Bell
1
Cindy Berardi
From: Bonnie Ruttan <bonnieruttan@aol.com>
Sent: Monday, October 31, 2016 10:33 AM
To: CityClerk
Subject: Oswit Canyon
We write to object to building a housing tract in Oswit Canyon. This is a pristine environmentally sensitive area and our
last unprotected alluvial fan canyon.
Please share this email with city council Thank you Bill and Bonnie Ruttan
1111 Abrigo Rd
PS 92262
Sent from my iPhone
t
Cindy Berardi
From: Mark K. Smith <mks.socal@gmail.com>
Sent: Monday, October 31, 2016 10:49 AM
To: CityClerk
Subject: Save Oswit Canyon
Dear City Clerk,
I can't believe I'm writing yet another email about this issue. It has come to my attention that an assessment of the
property in Oswit Canyon at South Palm Canyon has come up short. That being the case, the current owner of the dense
housing project that has been considered for that property is going ahead.
There are several problems with this go-ahead. This property belongs to an out-of-town developer who has literally
ZERO idea what they're doing in this county. They are coming into this project for the sole purpose of making a profit,
regardless of the horrendous environmental impact it will have on the very last alluvial fan left in this city. In addition,
they could care less that there is NO ONE nearby who wants to see this pristine land developed. They will not be
welcome here.
There are plenty of other places to develop housing in this city. There is absolutely no need to bulldoze an intact
ecosystem,filled with native plants and animals all forthe purpose of short term profit. In fact, I can pretty much assure
you that,just like EVERY OTHER PROJECT of this size in this city, they will lose funding after they've bulldozed it,
destroying an ecosystem for no good reason. I have watched this happen so many times I've nearly lost count. I can
name plenty of them tho:the Cameron project, 132@Pedregal,the downtown redevelopment project, Port Lawrence.
ETC. You know what I'm talking about. Plenty of developers come in, bulldoze, then lose their ability to continue a
project for whatever reason. In the meantime, we get to look at an eyesore.
How is it possible that this developer can possibly be allowed to continue this project without an updated environmental
impact study. We have plenty of photographic evidence that Bighorn sheep frequent that canyon. There is a complete
ecosystem to be considered that will be disrupted by this project,too. Not just Bighorn sheep will be impacted.
There are thousands of people who have hiked this canyon for decades.
This project will summarily remove access to a much loved hiking environment, one that is completely unique in the city
limits. If this city is about outdoor activities, that MUST be taken into account.
Please stop this project and force the owner to produce a new INDEPENDENT environmental study. There is no possible
way one that is over ten years old is valid.
I was under the impression that if outside funding could be sought,the city and the community could pitch in to help
procure property that is in dispute. Who can I talk to in the city to find out what we can do to save this canyon from
outside development? Regardless, please forward this email to the mayor(who attended our protest meeting last May)
and to anyone else on the city council who can help us save a CITY RESOURCE.
Thank you,
Mark
Mark K. Smith
Palm Springs, CA
1
Cindy Berardi
From: Randy Clarke-Ianiero <rclarke@jinxxx.org>
Sent: Monday, October 31, 2016 11:09 AM
To: CityClerk
Subject: STOP Development of Oswit Canyon . . .
Please send this E-Mail to all City Council Members!
Please stop the development of the canyon, before an updated EIR is completed! A completed EIR should show that any
development of the Canyon does not meet Federal or State guidelines that pertain to all of the animals that habit that
area. If eminent domain must be used to acquire the canyon for protection than that is what needs to be done. The
contractor that owns the property was, I believe,offered a fair value for the property and chose not to take it.
Also, I ask, why is the city offering to pay that developer what appears to be twice the value of a construction easement
to construct a Flood Project that is benefiting the developer as well as the populace? Who is this contractor working
with in the City?They need to review guidelines and follow them to the "T"!
Thank you, and see you all on Wed.
Randy Clarke-Ianiero
Clem Ianiero-Clarke
760-325-9438—Home
Do what you love, love what you do!
` Please wnsider the environment before panting this e-mail
1
Cindy Berardi
From: Robert Murphy <robertlmurphy@gmail.com>
Sent: Monday, October 31, 2016 12:04 PM
To: CityClerk
Subject: Oswit Canyon
Please pass this note along to City Council members:
I would like to add my name to, what I'm sure, is a growing list of concerned South Palm Springs residents
regarding the Oswit Canyon development project. All activity related to this project should stop for a couple of
reasons:
• A new Environment Impact Report needs to be completed. The last report was completed over a decade
go and does not account for range of currently endangered species.
• The city engineering department says it needs flood control for Palm Canyon (even though that part of
the street has not flooded in over 10 years), which will cost the city taxpayers over $750,000 (the grant
the city is obtaining does not cover the entire project). Essentially, residents are now paying for flood
control that previously had been part of the developer's financial burden for developing the property
with a flood basin.
• Additionally, the city is planning to pay the developer $250,000 for a small construction easement on the
property which is DOUBLE the appraised value for that amount of land (based on a recently completed
appraisal).
It's time to stop being steamrolled by out-of-town developers and respect the wishes of local residents, protect
the environment, and preserve Palm Springs' beauty for all to enjoy.
Respectfully,
Robert Murphy
145 E Perlita Circle
Palm Springs, CA 92264
t
Cindy Berardi
From: wwdownes27@yahoo.com
Sent: Wednesday, November 02, 2016 6:23 AM
To: CityClerk
Subject: Oswit Canyon development
To the board of the city Council, As a taxpayer, registered voter and concerned environmentalist, I urge every member
of the board to halt any development of Oswit Canyon until an environmental impact report can be concluded.
There are plenty of places to build in the Coachella Valley and the few undeveloped canyons we have remaining should
be respected and left to nature.
Please forward this to every member of the board.
I will attend Wednesday's meeting so I may express my concerns in person.
Thank you, William Downes
Sent from my iPhone
i
Cindy Berardi
From: Clifford Hopkins <cliffordhopkins@gmail.com>
Sent: Wednesday, November 02, 2016 6:35 AM
To: CityClerk
Cc: stephencallcott@gmail.com
Subject: Save OSW1T CANYON
Please stop the development project at Oswit Canyon. As residents of Palm Springs, we do *not* support the
City Council members who let this move forward. Please stop it.
Nothing should be done on that property until an updated Environmental Impact Report (EIR) is completed and
a survey of the endangered Casey's June Beetle is conducted.
Please confirm you are against this.
Best regards,
Cliff Hopkins & Stephen Callcott
2710 Kings Road West
Palm Springs
t
Cindy Berardi
From: Neeraja Lockart <neerajaps@me.com>
Sent: Wednesday, November 02, 2016 7:21 AM
To: CityClerk
Subject: Oswit Canyon Alluvial Fan
Dear City Clerk,
I ask that you do all that you can stop any plans to move forward with building on the pristine Oswit Canyon
area until an EIR is completed, as an avid hiker I see Peninsular Big Hom sheep on that mountain range daily
now, Just the other day I saw 12 grazing, it is imperative to keep our precious alluvial fan free of construction,
noise and over building. Once it's gone we cant get it back, please do the right thing to ensure the longevity of
the big horn sheep and all other species that are endangered.
Please send this email to all Council Members.
Best regards, Neeraja
Neeraja Lockart
575 S. Calle Ajo
Palm Springs, Ca
92264
760.218.7370
neera'aaps(a)me.com
r
Andy Gibbs
2681 W. La Condesa Drive
Palm Springs, CA 92264
November 2, 2016
Mayor Robert Moon
Mayor Pro Tern Chris Mills
Councilmember Ginny Foat
Councilmember Geoff Kors
Councilmember J.R. Roberts
RE: City Council Staff Report, November 2, 2016 Consent Calendar, Right-of-Way
Agreement for Acquisition of Flood Control and Drainage Easement, (A6839),
Dear Honorable Members of the City Council,
am a Palm Springs resident, and together with Ms. Jane Garrison am presenting the
following comments on behalf of the more than 2,000 community members of a citizen coalition
known as "Save Oswit Canyon".
We strongly recommend postponing any decision to acquire a flood control and drainage
easement at the intersection of Bogart Trail and South Palm Canyon for the following reasons:
A. This project will cost Palm Springs taxpayers nearly $2 million;
B. It appears that the proposed acquisition costs exceed fair market value, and that
eminent domain appraisal rules were not used in determining the value;
C. Given the US EPA's Climate Change outlook for the Southwest US (including
California), the necessity for this project is now questionable. A new flood evaluation
should be conducted in light of Climate Change;
D. Combined with the stresses on the local ecosystem created by climate change, there
should be additional environmental studies to determine the potential negative
impact of the project on the endangered Casey's June Beetle;
E. We believe that the Categorical Exemption/Categorical Exclusion Determination Form is
technically deficient since. in part, it:
a. Relies upon a Natural Environmental Study completed in 09/07/2010, prior to US
Fish and Wildlife's listing of Casey's June Beetle (CJB) as an endangered
species (the project property is within the CJB survey boundary),
b. Relies upon an Environmental impact Report(EIR) completed in 1991 and
amended in 2003 (certified in 2006). Significant changes, as defined by CEQA,
have occurred since both dates, and we believe that the outdated EIR and
Amendment are deficient underpinnings for the CALTRANS and NEPA
determination of CEQA compliance.
1
F. Palm Springs General Plan highlights eco-tourism as a critically important, and growing
revenue source. Oswit Canyon is the last remaining un-developed alluvial fan in
Palm Springs, and is the prime eco-tourist destination in the City. We believe that a
study should be completed to determine whether the substantial geological alteration
to the Owsit alluvial fan will negatively impact the City's long-term revenue that relies
on eco-tourism.
The original request for the bridge grant was submitted in 2005—when the then
empowered City Mayor and administration was focused on wholesale residential development
of Palm Springs' natural resources. We can understand that at that time, the City was intent on
acquiring any funding that would fuel its unrestrained support of land development.
In the eleven years since the grant submission, the Bogart Trail / South Palm Canyon
intersection has not flooded — even though the Vista Chino wash, Golf Club Drive and many
other parts of Palm Springs has.
Therefore, there appears to be no urgency today in rushing to destroy what is Palm
Springs' last remaining unspoiled ecosystem and undeveloped, 10.000 year old geological
asset. We believe that the evidence necessitating a complete revisit of this project is
overwhelming, and cannot be dismissed for the convenience of starting grading and excavation
of the Oswit alluvial fan.
We therefore urge the City Council to postpone any decision on purchasing the
easement, and to responsibly conduct the proper environmental and economic assessments
given the substantial changes in climate, the City's focus on long-term revenue, and the
escalated costs to taxpayers (in 2016 dollars) compared to the original budget analysis as
outlined in the list of concerns at the opening of this letter.
Being respectful of your time and service to the residents of Palm Springs, we thank you
for your consideration.
Sincerely,
Andy Gibbs and Jane Garrison
Coordinators Save Oswit Canyon
cc:
James Thompson, City Clerk
Joanne Bruggemans, Executive Assistant to Mayor and City Council
2
EXHIBIT 1 .
ENVIRONMENTAL ASSESSMENT FOR PROPOSED RIGHT OF
WAY (PALM SPRINGS PROJECT NO. 06-18) IS DEFICIENT
FAILS TO ASSESS ENVIRONMENTAL IMPACT OF PROJECT ON FEDERALLY
LISTED ENDANGERED SPECIES
CITY EMPLOYEES ARE NOT CREDENTIALED / QUALIFIED TO MAKE DETERMINATION OF
ENVIRONMENTAL IMPACT ON FEDERALLY LISTED ENDANGERED SPECIES.
Casey's June Beetle ,
Survey Boundary t
Endangered; September
22, 2011 (76 FR 58954)
Authority: US Fish and a
Wildlife Service i ;t
Easement Negative `%
Environmental +'� - •°°• ^
Impact Area
Proposed Right of Wayt�
BoundaryK�
City Project No. 06-18 { it
r
Date of Application for Project Grant: 2005
Date of completion of "Natural Environmental Study": 09/07/2010
(State project) Federal-Aid Project No. BR-NBIL(502)
Date of CJB Endangered Species Listing: 09/22/2011
. EIS could not possibly have considered impact to endangered snecies
since it was completed before snecies was listed as endangered.
Casey's June Beetle Data Source: Recovery Outline for Casey's June Beetle—March 2013,
US Fish and Wildlife Service
"The scope of this recovery outline is a single species, Casey's June beetle; however, many of the actions
recommended in this outline that contribute to the conservation of Casey's June beetle are ecosystem-
based. This recovery outline is based on the best available scientific information contained in the listing and
critical habitat rule(USFWS 2011) and information in our files. Most of the major threats to the species are
attributed to development and associated habitat modifications."
Right of Way Data Source: Citv Council Staff Report, November 2, 2016 CONSENT
CALENDAR
EXHIBITS: Save Oswit Canyon 11.02.16 Page 1
EXHIBIT 2.
NEGATIVE ECONOMIC IMPACT TO PALM SPRINGS
TAXPAYERS
(PALM SPRINGS PROJECT NO. 06-18)
ARE TAXPAYERS PAYING AN ARTIFICIALLY INFLATED FAIR MARKET VALUE?
Residents of Palm Springs strongly recommend that the City Council postpone any decision on
executing agreement, or paying any fees related to any Easements for the Right Of Way of the proposed
project until it can satisfactorily address all potential negative economic impacts to the City and its taxpayers.
The above proposed project would
a. improperly impose a burden to Palm Springs' taxpayers that may exceed Fair Market Value, and
b. is likely to negatively impact Palm Springs' burgeoning Eco-Tourism revenue model in conflict with
Palm Springs' General Plan.
On or before September 17, 2014, the City determined "Fair Market Value" for the easement on Project
No. 06-18 to be $126,336 (Council Staff Report, September 17, 2014)
On April 6, 2016, the developer waived all compensation for the easement (except $29,000 under a
Temporary Construction Easement Agreement under a short-term rental condition).
In an April 6, 2016 Staff Report, "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).
No explanation has been made to Palm Springs taxpayers as to how the "Fair Market Value" exploded nearly
100% when real estate value appreciation during that same period was approximately 14%.
On or about September 2016, having failed their PDD bid, the developers withdrew their waiver of Fair Market
Value compensation for the construction easement.
So now—the City is proposing to pay what may be an artificially inflated "Fair Market Value"that will
cost taxpayers another $250,000 that was not provided in the originally approved Fiscal Impact presentation
for this project.
Prior to approval of any payment to any recipient for the proposed Right Of Way. the
resident taxpayers of Palm Springs request an explanation of how the City determined Fair
Market Value increase of 100% over two years, and further request that the City show that the
Assessment for the easement was based on eminent domain appraisal guidelines. if eminent
domain appraisal guidelines were not used, the people respectfully request an explanation as
to why they were not, and disclose what guidelines were used
continued next page ....
EXHIBITS: Save Oswit Canyon 11.02.16 Page 2
ECONOMIC IMPACT ANALYSIS (AS PROPOSED)
Original Fiscal Impact as reported out in City Council Staff Report November 2, 2016:
Project cost (2005 dollars): $4,581,000
Less Grant proceeds (83% of project costs): $4,055,000
Total Proposed Burden to City taxpayers (2005 dollars): ($526,000)
Project cost (2016 dollars - inflation adjusted): $5,600,923
Less Grant proceeds (83% of original project costs): $4,055,000
Total Proposed Burden to City taxpayers (2005 dollars): ($1,545,923)
Current (proposed) Fiscal Impact:
Project cost (2016 dollars - inflation adjusted): $5,600,923
Less Grant proceeds (83% of original project costs): $4,055,000
Estimated Escrow and Title Fees: ($15.000)
Total Proposed Burden to City taxpayers (2005 dollars): ($1 ,559,923)
PLUS "Fair Market Value" easement acauisition: ($250 000)
Total Cost with "Fair Market Value" easement: ($1,810,923)
ECONOMIC IMPACT ANALYSIS (IF ABANDONED)
TAXPAYERS SAVE OVER $1,300,000
Palm Springs may abandon or indefinitely postpone the proposed project. The economic
analysis of abandonment follows:
Receipt of Grant proceeds (83% of original project costs): $4,055,000
Return of Grant proceeds (83% of original project costs): ($4,055,000)
"Fine" imposed on Palm Springs by granting Agency ($500.000) '*
Total Proposed Burden to City taxpayers (2016 dollars): ($500,000)
Possible Burden to City taxpayers of Project Abandonment: $0
** This "fine" amount is purely hypothetical as provided in email by Mr. Fuller(September 18,
2016), and is without any substantiation whatsoever. Further, Mr. Fuller indicated that there is
only a "ris " of having to re-pay Therefore, the "fine" or repayment may never occur.
Taxpayers respectfully request that the City Council obtain a proposal from the Granting
Agency for the cost of returning the unused grant proceeds.
Further, taxpayers request that the City Council determine the negative impact to the City
Operating Budget that may occur as a result of Eco-Tourism revenue loss as a result of the
destruction of the last pristine alluvial fan in Palm Springs.
Only after understanding the actuaI out of pocket and opportunity costs can the City
Council make a determination on economic impact to Palm Springs taxpayers.
EXHIBITS: Save Oswit Canyon 11.02.16 Page 3
EXHIBIT 3.
PROJECT ASSESSMENT FAILS TO EVALUATE IMPACT OF
LONG-TERM CLIMATE CHANGE
GLOBAL WARMING AND LONG-TERM DROUGHT MILITATE REASSESSMENT
OF 100 YEAR FLOOD AND NECESSITY OF TRADITIONAL FLOOD CONTROL
MEASURES
The City uses as justification for the significant expenditure for the creation of a flood diversion
structure, a few photographs of a flash flood event that occurred eleven years ago. Flash flood events typically
last a few hours at most- and are frequently experienced on Vista Chino road, Golf Club Drive, and various
other low-lying areas throughout Coachella Valley.
We all know that within hours, flood waters recede, and life in Palm Springs returns to normal.
The few photographs provided are used as fear-mongering in support of the project.
What was the REAL driving force behind the 2005 solicitation of grant money to build bridge
infrastructure in developable land? Perhaps, that's a rhetorical question now. It is well-known that
Palm Springs' mayor at the time (Steve Pougnet; in office 2003-2015) disregarded the preservation of
environmentally sensitive lands for possible self enrichment ties to large-scale residential development. The
receipt of State and Federal monies to build infrastructure appeared to serve Mr. Pougnet's agenda.
FACTS IN 2016
Since the 2005 photographs of the aberrant flooding event, there has been no equivalent flooding at the
Bogart Trail/South Palm Canyon intersection. If a similar sheet-flow flooding event from a desert flash flood
occurred again, there would be a few hour disruption - as is typical throughout Palm Springs.
However, in July 2014, the Bureau of Land Management and the Coachella Valley Conservation
Commission completed a study entitled "Assessing Climate-Related Changes in Water Resources in the Santa
Rosa and San Jacinto Mountains National Monument".
In summary, the study found that "indicators (reduced heavy snow packs and increased rain-to-snow
ratios) are consistent with climate change predictions (IPCC 2013). To the extent that these indicators affect
surface water availability within the Monument, we predict a greater overall reduction of surface water in the
Santa Rosa and San Jacinto Mountains as the climate warms."
This report also cited certain literature including:
IPCC 2013. Climate change 2007: the physical science basis. Contribution of the working group I to the
fourth assessment of the IPCC. Cambridge University Press, Cambridge, United Kingdom.
Kelly, A.E., and M.L. Goulden. 2008. Rapid shifts in plant distributions with recent
climate change. PNAS 105.11823-11826.
EXHIBITS: Save Oswit Canyon 11.02.16 Page 4
US EPA PROJECTS REDUCED RAINFALL AND FREQUENCY OF RAINFALL
The US Environmental Protection Agency report Climate impacts in the Southwest states:
"Drought conditions are already common in the Southwest and drought periods are expected to
become more frequent, intense, and longer." "Maximum streamflow has also occurred earlier in the year and
total yearly streamflow has decreased in the last decade. In April 2015, California snowpack held only 5% of
the water it typically holds at this time of year, with some areas having no snowpack.[3] This was the smallest
April snowpack in the last 65 years, and projections indicate continued declines in snowpack in the Southwest
in the future."
Impacts on Forests and Ecosystems
"Projected increases in drought, wildfire, invasive species, and pests, as well as changes in the
geographic ranges of species, will likely threaten native forests and other ecosystems in the Southwest."
SOURCE.' USEPA Projections: https://www.epa.gov/climate-impacts/climate-impacts-southwest
CONCLUSION:
The persistent drought is pressuring ecosystems in California - and there is likely a negative impact to
the Federally listed / endangered Casey's June Beetle. The reduced frequency and volume of precipitation will
change flood models in the Southwest throughout the rest of the century.
The possible change to local flood models is unknown, but it is known that the models have changed.
The negative impact to endangered species is unknown, but it is known that there will be a negative
impact on the local ecosystem.
Grading, redirecting sheet flow water from the Oswit alluvial fan (which feeds the Casey's June Beetle
protected habitat area) may have a collateral negative impact- which again is unknown.
SUGGESTED NEXT STEPS:
IT IS REQUESTED THAT PALM SPRINGS CITY COUNCIL SERIOUSLY CONSIDER THE
DESTRUCTION OF IT'S PRIME ECO-TOURISM DESTINATION WHICH COULD COMPOUND THE
ALREADY PROJECTED NEGATIVE IMPACTS PROJECTED TO RESULT WITH CLIMATE CHANGE AND
CONTINUED SOUTHERN CALIFORNIA DROUGHT.
FURTHER, THE CITY COUNCIL SHOULD POSTPONE ANY DECISIONS REGARDING MOVING
FORWARD WITH THE PROPOSED PROJECT 06-18 UNTIL AFTER IT RETAINS A COMPETENT AGENCY
OR CONTRACTOR TO ASSESS THE NEGATIVE IMPACT TO THE OSWIT CANYON ALLUVIAL FAN
GIVEN THESE CHANGING CONDITIONS, AND REPORT BACK WITH AN ENVIRONMENTAL AND
ECONOMIC ASSESSMENT RELATED TO THE PROPOSED PROJECT.
FINALLY, THE CITY SHOULD INVESTIGATE WHETHER THERE ARE NEW "100 YEAR FLOOD"
OR RELATED FLOOD MODELS FOR THE SAN JACINTO/ SANTA ROSA MOUNTAINS THAT REFLECT
THE PROJECTED CLIMATE CHANGE MODELS BEFORE DETERMINING THE NEED FOR THE
PROPOSED FLOOD DIVERSION INFRASTRUCTURE.
EXHIBITS: Save Oswit Canyon 11.02.16 Page 5
Cindy Berardi
From: Scott Scott <traildiscovery@earthlink.net>
Sent: Wednesday, November 02, 2016 9:22 AM
To: CityClerk
Subject: Oswit Canyon Devlpmt.
Dear Council members & City clerk, (please send to all council members),
I'm writing to urge the city of Palm Springs to stop any development of Oswit canyon until ALL EIR
information is complete & thoroughly analyzed.
As a Palm Springs business owner & eco-tour operator, I feel it is important to follow the appropriate
steps before allowing any development in the city.
This area is very important to wildlife, including the threatened Peninsula Bighorn Sheep, mountain
lion, bobcat & other wildlife.
I feel , nothing should be done on that property until an updated Environmental Impact Report (EIR)
is completed and a survey of the endangered Casey's June Beetle is conducted.
I also don't think it appropriate or fair to the citizens to have the city contribute money to aid the
developers regarding flood control.
This city is very reliant of tourism, that's a given. Thousands of visitors & residence use this canyon
every year to recreate, de-stress, give their dogs needed exercise & outdoor time, and allow the
wildlife that lives their protection.
Yes, property owners have rights, but in this case, this land can be purchased at appraised value to
protect it forever, just like our local monument has.
Thank you for your serious consideration,
Scott Scott
chief guide
Trail Discovery
760 413-1575
P 0 Box 554
Palm Springs,Ca.92263
www.palmspringshiking.com
Check our 5 Star rating on Trip Advisor in Palm Springs
Get Outside// http://voutu.be/kAekPdXi LR4
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Cindy Berardi
From: larry warnock <I.warnock@me.com>
Sent: Wednesday, November 02, 2016 11:03 AM
To: CityClerk
Subject: Stop the development in Oswit Canyon
Please forward this all city council members.
I was happy to help vote out a lot of City Council Members in the last election, and I will be ready to do it again
if it looks like developers continue to get help from the council on developments like Oswit Canyon. It makes
no sense to develop that land - particularly when the Coachella Valley Mountain Conservancy is interested in
buying it.
It definitely does not make sense for the city to spend a dime of money to help the developer when the entire
surrounding community is against it.
The continued practice of allowing variances for creating smaller lots makes no sense on multiple levels. There
is a lot of flat desert out there for them to build small houses on small lots. Palm Springs is supposed to be
someplace special.
I will fight this tooth and nail, along with any council members who don't stand up to oppose it. It is really the
only issue of importance to me in city government at this point. Put some effort into making the city work
without caving in to developers.
Best Regards,
Larry Warnock
www.WarnockFineArts.com
415.377.7438
t
Cindy Berardi
From: Brian Yaklich <bdyaklich@gmail.com>
Sent: Wednesday, November 02, 2016 1:42 PM
To: CityClerk
Subject: Oswalt Canyon Save Please distribute to all Council Members
Dear City Council Members:
I am opposed to any effort to destroy Palm Springs' last unprotected Aluvial Fan canyon!
Save Oswit Canyon.
The City of Palm Springs should not support Oswit Canyon development through grant funds or building
bridges.
I support an update Environmental Impact Report (EIR) be completed before any action be taken around Oswit
Canyon.
Thank you for your time and consideration of this important issue.
Sincerely,
Brian Yaklich
640 S. Warm Sands Drive
Palm Springs, Ca. 92264
Cindy Berardi
From: Christopher Meyers <cnoelmeyers@gmail.com>
Sent: Wednesday, November 02, 2016 2:54 PM
To: CityClerk; Robert Moon; Chris Mills; Ginny Foat; Geoff Kors;JR Roberts
Cc: Evelyn Nagel
Subject: Oswit Canyon Development
Dear Mr.Thompson, Mayor Moon, Deputy Mayor Mills, Councilwoman Foat, Councilman Kors and Councilman Roberts:
Please place this letter in the official record of the Palm Springs City Council Meeting regarding the development of
Oswit Canyon.
My wife and I are full time residents of Palm Springs. We live in South Palm Springs and are very familiar with Oswit
Canyon. We hike in this area frequently. We are opposed to the development of this ecologically sensitive alluvial fan.
This is a beautiful and unique area that is a habitat for Big Horn Sheep and much other wildlife. We strongly believe that
an updated Environmental Impact Report (EIR) should be required before any further steps are taken towards
development of this area. We do not understand why the City of Palm Springs would underwrite the expense of flood
control in this area when the developer would be required to so if they were to go ahead with the project. The City's
willingness to take on this expense leaves us wondering if the city is colluding with the developers to have this project
completed.
We believe that this development is part and parcel of the the most fundamental concern that faces you, the city
council: Going forward what is your vision of Palm Springs? Developers will do what they do: develop and take their
profits and move on. They are not required to be concerned about the future of this community. As the city leaders,
you are required to have a vision of where the city needs to go, based on the views of the citizens of this community.
You should not look at each development in isolation and without considering how will the community sustain itself.
More homes, more hotels, more tourists require more water, more streets, more police, cause more traffic,and the loss
of open space. Water is the greatest concern. Our aquifer has been in overdraft since the the 1940's,the Colorado
River Basin in a drought for over 10 years. California is entering into its 6th year of drought. Economic sustainability is
also a concern. How many of theses homes will be bought by investors looking to profit from short term rentals (STR)?
How will more STRs effect the hotel rates and existing STIR rates? As a council do not contribute to a boom in
development that will lead to a difficult or devastating bust later on.
Sincerely,
Christopher Meyers& Evelyn Nagel
1
Cindy Berardi
From: ch <checkpool@aol.com>
Sent: Wednesday, November 02, 2016 3:21 PM
To: CityClerk
Subject: Oswit Canyon Development
Dear Sir,
I am a citizen of Palm Springs, CA and yes, also a avid HIKER.
It would be a shame to loose the last alluvial fan canyon in Palm Springs to
development while there is ample undeveloped property in the desert. Yes,
the city I am sure, wants to promote development for future taxes, but its also
important to set aside areas that future generation can appreciate the beauty
of Oswit Canyon within the City.
We can't hold up progress, but the City should not make it easy for development
of Oswit Canyon. The need for a flood basin with the Oswit development should
be the responsibility of the developer. Also an up-to-date EIR needs to be addressed.
The City has a fiduciary responsibility to the citizen to see that every tax dollar is
spent wisely and not favor any entity over another. City government must listen
to the citizens and balance what's good for the city now and in the future.
J.Cutler Lewis
1425 Tiffany Cir. S.
Palm Springs, CA
760-323-7896
t
Cindy Berardi
From: tanya petrovna <tanya.petrovna@gmail.com>
Sent: Wednesday, November 02, 2016 5:47 PM
To: CityClerk
Subject: Oswit Canyon
Please be sure that each city council member receives a copy.
Nothing should be done to that area until a new Environmental Impact Report is done, it would be wrong to not
have one done that is up to date.
Concerning the $250,000 to be paid to developer for easement, I find that high, actually double to that which the
land had been appraised.
I would hope you would work with the citizens, and environmental groups to help us purchase the land for open
space,preserve our last alluvial canyon, the myriad of wildlife including bighorn sheep and let our citizens and
visitors enjoy it for eternity.
We need some desert and some space so we can breathe and preserve the reason we live here and why people
visit here. Open space creates monetary value for the area too.
Chef Tanya Petrovna
Vegan Chef, Certified Iyengar Yoga Teacher, Animal Advocate
Founder Native Foods Cafes
www.cheftanyaskitchen.com
Life is short, do it(t)all!
t