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Home My WebLink About5/18/2016 - STAFF REPORTS - 2.D. iy u in ti l Cp1 0.1>tEv`n9 City Council Staff Report Date: May 18, 2016 CONSENT CALENDAR Subject: APPROVAL OF RIGHT OF WAY ACQUISITION AGREEMENTS FOR ASSESSORS PARCEL NUMBER (APN) 669-070-003, FOR THE INDIAN CANYON DRIVE WIDENING & BRIDGE REPLACEMENT, CITY PROJECT NO. 01-11, FEDERAL AID PROJECT NO. BRLO 5282 (017) From: David H. Ready, City Manager Initiated by: Public Works and Engineering Department SUMMARY The City has successfully completed the right-of-way acquisition process with the owners of the property identified by Assessor's Parcel Number (APN) 669-070-003 to obtain a permanent slope easement and temporary construction easement required to construct improvements associated with the Indian Canyon Drive Widening & Bridge Replacement, City Project No. 01-11, Federal Aid Project No. BRLO 5282 (017), (the "Project"). This action will approve and authorize the City Manager to enter into the agreements allowing for acquisition of rights-of-way for the Project across APN 669- 070-003. RECOMMENDATION: 1. Approve a Right-of-Way Agreement for Acquisition of Real Property Interest and Escrow Instructions, Agreement (A ), in the amount of $21 ,184 with Mary Sheila Comeau, Anita Comeau and Michele Comeau, as Trustees of the J. Laurent Leger Comeau and Mary Sheila Comeau Revocable Living Trust dated March 13, 1990 — Survivor's Trust, as to an undivided 113 interest; Mark E. Fredenburg and Elizabeth J. Fredenburg, Trustees of the Fredenburg Revocable Living Trust dated September 30, 1993, as to an undivided 1/3 interest; and Heather Jacques Brown and Stephen G. Brown, Trustees of the Heather Jacques Brown and Stephen G. Brown Revocable Living Trust dated January 10, 1995, as to an undivided 1/3 interest; and 2. Approve a Temporary Construction Easement Agreement, (A ), in the amount of $8,416 with Mary Sheila Comeau, Anita Comeau and Michele Comeau, as Trustees of the J. Laurent Leger Comeau and Mary Sheila Comeau Revocable Living Trust dated March 13, 1990 — Survivor's Trust, as to an undivided 1/3 interest; Mark E. Fredenburg and Elizabeth J. Fredenburg, Trustees of the Fredenburgr� ITEM NO.- Q V City Council Staff Report May 18, 2016 -- Page 2 Approval of R/W Agreements, APN 669-070-003, CP 01-11 Revocable Living Trust dated September 30, 1993, as to an undivided 1l3 interest; and Heather Jacques Brown and Stephen G. Brown, Trustees of the Heather Jacques Brown and Stephen G. Brown Revocable Living Trust dated January 10, 1995, as to an undivided 1/3 interest; and 3. Authorize the City Manager to execute all necessary documents, open escrow, and pay for associated escrow and title costs associated with the right-of-way acquisitions. STAFF ANALYSIS: After the City initiated the Indian Canyon Drive / Interstate 10 Interchange Project ("1-10 Project') in 2000, the Public Works and Engineering Department ('Department') turned its attention to widening Indian Canyon Drive through the Whitewater River up to Garnet Avenue to correspond with the ultimate 6-lane roadway to be constructed from Garnet Avenue over Interstate 10 as part of the 1-10 Project. In pursuit of this goal, the Department applied for and obtained federal grants for widening Indian Canyon Drive, from the Union Pacific Railroad ("UPRR") bridge to Garnet Avenue, from 2 lanes to 6 lanes. The Department was initially successful in being awarded a federal grant of $4,286,000 from the Highway Bridge Program ("HBP"), administered through the California Department of Transportation ("Caltrans"). Subsequently, as the scope of the Project has changed from widening of the existing UPRR bridge to complete replacement of the UPRR bridge, and the total cost of the Project has increased, the Department has successfully increased the total federal funding for the Project to $17.4 Million. In May 2001, the Department obtained approval from Caltrans to proceed with the preliminary engineering phase for this project. Subsequently, the City Council awarded a contract to Dokken Engineering on March 20, 2002, for professional environmental and engineering design services, and right-of-way acquisition services, for the Project. The Project extends through environmentally sensitive habitat occupied by certain protected species, and environmental analysis and approvals of the Project by resource agencies occurred concurrently as the Coachella Valley Multiple Species Habitat Conservation Plan (CVMSHCP) was being developed and approved. Following final approvals of the CVMSHCP by the resource agencies in 2008, which lists the Project as a "Covered Project', the City obtained final environmental approvals for the Project from Caltrans and resources agencies in 2009. Following environmental approvals of the Project, Dokken Engineering has continued with the final design and right-of-way acquisition phases. The Project will require the acquisition of rights-of-way from various parcels, as shown in Figure 1 . 02 City Council Staff Report May 18, 2016--Page 3 Approval of RNV Agreements, APN 669-070-003, CP 01 1 eE[-ma-ooT 00[ O]O Op3 TRANSPORTATION CO Q CITY OP PGLY [PRIXUB OT pP �Y Y[4wPOM .1 ©GZl ,... ,} 04 ROIRT W. YIN[[ / NY-pb010 J',12,. SY•I.Y OF i y. BY. CALIFORrA / UO-0[M1O[S LINO YASISGI! } Q~ / O® OAE CON ANY FOOOY.LRER INC. _ O� [U-ao-0» / / CYNTHIA N. MONNTY SIS•p00l0 RONNR} W. YIY![ 111 _ ROBERT V. dim O © r —_—_--__--- —_I__— [U9w-Om ��B[SPS1N�PAIP� LEOERD GRANITE CONSTRUCTION /ISRPWORPA[N�W� /^,` iROBCRT W. MINER [[Irt Na cRY RI[YT-OI-Y[Y COMPANY /' + /• L4 O /� O ; MN-OY-OM �i� f B[IVRG A. LEE.. (� ®O7 Q ' Bu-OYY-OCA MUMMY W. MEN no-w>m i —cVTTILL LIFE LIRE ROBERT W. MINER SOOTMNMI CALIFORNIA _ IIIIIIIIIIIF,4 EAU s[001 PROACT MUSH /, "ISO" COMPANY —STYLE L[[[(ON)PROJECT LWITO _PALO*MS W171 PROJECT MEANT OP WAY TAR[ AREAS —READ StlA IM71 PSOJ[CT SLOPE[AN6ET [[[[L / —W.L. n»I0111 Y[oJ[Er TCE AREAP / / CITY OF IIIIIIIIM[•; STPLR An[Im[I EMNT-Or-WAT TARE Al..A ]• PALM 8PRIN08 [TPL[ n[[mw SLOP[[uE[NT AREAS IIIIIIIIIIF`.OTAE I[OL IOIn TC[ u[u WE Figure 1 0 w City Council Staff Report May 18, 2016 -- Page 4 Approval of RNV Agreements, APN 669-070-003, CP 01-11 At its Closed Session meeting of October 21, 2015, the City Council received a report from staff on the fair market value of the required rights-of-way for the Project, and directed staff to proceed with final negotiations and acquisition with the affected property owners. The City has completed negotiations with the owners of the property identified by APN 669-070-003 for required rights-of-way as shown in Figure 2. APN# 669-070-003; Fredenburg Trust APN: 669-070-003 LEGEND" I � EXISTING PARCEL OWNER: FREDENBURG TRUST, ET AL _._. EXISTING RIGHTOF-WAYI PROPERTY BOUNDARY PROPOSED RIGHT OF-WAYI PROPERTY BOUNDARY --- PROPOSED TEMPORARY • Slope Easement: 12,461 Square Feet CONSTRUCTION EASEMENT PROPOSEDROAOWAY • Temporary Construction Easement: 10,391 Square Feet PROPOSED SLOPE EASEMENT TEMPORARY O EASEMENT AREA STRUC ON O SLOPE EASEMENT AREA % PROPERTY BOUNDARY • • 4 y . r� R,• • ! � ,I V.;� , •y. TCE . .9 • T 1.. . a PROPOSED SL4PE'EylSEMjIJT . • - i . a' 3. �Ary� ° .�. .•`" # �EXISTING RNY .. Figure 2 Right-of-way negotiations have concluded for acquisition of the permanent slope easement and temporary construction easement across the property identified by APN 669-070-003, and agreements are recommended for approval whereby the City will acquire 12,461 square feet of permanent slope easement in the amount of $21,184 and rent the required 10,391 square feet of the property at a cost of $8,416 for a period terminating on April 30, 2021 . An agreement to acquire the permanent slope easement is included as Attachment 1, and an agreement to acquire the temporary construction easement is included as Attachment 2. 04 City Council Staff Report May 18, 2016 -- Page 5 Approval of R/W Agreements, APN 669-070-003, CP 01-11 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 November 4, 2009, the City Council adopted Resolution No. 22620, adopting and ordering the filing of a Mitigated Negative Declaration for the Project. Subsequently, on November 5, 2009, 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 September 24, 2009, 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 ("EA") or Environmental Impact Statement ("EIS'), has considered unusual circumstances pursuant to 23 CFR 771.117(b), and that it qualifies for a Categorical Exclusion under Section 6005 of 23 U.S.C. 327. A copy of the NEPA Categorical Exclusion issued by Caltrans is included as Attachment 4. FISCAL IMPACT: The costs to acquire the required rights-of-way across the property identified by APN 669-070-003 for the Project is $29,600 plus escrow and title fees of approximately $5,000. Funding for the Project is made possible by the federal HBP grant which will cover 88.53% of all eligible project costs. Regional and Local Measure A funds will pay for the 11.47% matching funds at a 75%/25% ratio. Sufficient funding is available for payment of $29,600 for the permanent slope and temporary construction easements from the following accounts: Capital Project Fund, Account No. 261-4491-501 96; $26,204.88 Regional Measure A, Account No. 134-4497-50196; $2,546.34 Local Measure A, Account No. 134-4498-50196; $848.78 Applicable escrow fees will be funded from these accounts accordingly. 05 City Council Staff Report May 18, 2016 -- Page 6 Approval of R/W Agreements, APN 669-070-003, CP 01-11 SUBMITTED: 1 - I dL44a Marcus L. Fuller, IVIPA, P.E., P.L.S. David H. Ready, Esq., Ph Assistant City Manager/City Engineer City Manager Attachments: 1. Right-of-Way Agreement for Acquisition of Permanent Slope Easement 2. Temporary Construction Easement Agreement 3. CEQA Notice of Determination 4. NEPA Categorical Exclusion 06 ATTACHMENT 1 07 Project: Indian Cyn. Drive Widening and Bridge Replacement @ UPRR Project No.: Federal Project No. BRLO 5282 (017), City Project No. 01-11 APN: 669-070-003 RIGHT-OF-WAY AGREEMENT FOR ACQUISITION OF REAL PROPERTY INTEREST AND ESCROW INSTRUCTIONS THIS RIGHT-OF-WAY AGREEMENT FOR ACQUISITION OF REAL PROPERTY INTEREST AND ESCROW INSTRUCTIONS ( "Agreement'), dated and entered into for solely for reference purposes as of 20_, by and between the CITY OF PALM SPRINGS, a California charter city and municipal corporation ("Buyer") and Mary Sheila Comeau, Antita Comeau and Michele Comeau, as Trustees of the J. Laurent Leger Comeau and Mary Sheila Comeau Revocable Living Trust dated March 13, 1990 — Survivor's Trust, as to an undivided 113 interest; Mark E. Fredenburg and Elizabeth J. Fredenburg, Trustees of the Fredenburg Revocable Living Trust dated September 30, 1993, as to an undivided 1/3 Interest; and Heather Jacques Brown and Stephen G. Brown , Trustees of the Heather Jacques Brown and Stephen G. Brown Revocable Living Trust dated January 10, 1995, as to an undivided 113 Interest(collectively, "Seller"), with reference to the following facts: RECITALS A. Seller is the owner of certain real property comprised of approximately one hundred four thousand three hundred eight (12,461) square feet, located in the City of Palm Springs (the "City"), the County of Riverside (the "County"), State of California (the "State"), which is a portion of Assessor's Parcel No. 669-070-003, more particularly described on Exhibit A and shown on Exhibit B attached hereto (the "Easement Area "). B. Seller desires to convey to Buyer and Buyer desires to acquire from Seller an exclusive easement to the Easement Area, in accordance with the terms and conditions contained in this Agreement. NOW, THEREFORE, for and in consideration of the mutual covenants and agreements contained in this Agreement, and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged by Seller, Buyer and Seller (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, Seller hereby agrees to sell and convey to Buyer, and Buyer hereby agrees to acquire and purchase from Seller, an exclusive easement for public utility and public services purposes, including drainage, over, upon, under, across, and within the entirety of the Easement Area as such area, scope and use is more particularly 1 1116419 1 08 I described in the Grant of Easement attached hereto as Exhibit C the "Easement"), which Exhibits A and B attached hereto that define the Easement Area shall be made a part of. 1.2. Purchase Price. The purchase price ("Purchase Price") for the Easement shall be Twenty-One Thousand One Hundred Eighty-Four dollars and no cents ($21,184) 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 last of Seller or Buyer, Buyer shall open an escrow (the "Escrow") with Lawyers Title & Escrow, 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 Buyer and Seller 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 Buyer and Seller. 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, Buyer agrees to pay all of Sellers and Buyer'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 ALTA Extended Coverage Owner's Policy. 2.3. Closing Date• Conditions Precedent to Close of Escrow. Provided all of the conditions set forth in this Section 2.3 have been satisfied (or are in a position to be satisfied concurrently with the Close of Escrow), the Close of Escrow shall occur on or before April 30, 2016, (the "Closing Date"). As used in this Agreement, the "Close of Escrow" shall mean the date a Grant of Easement, as provided in Section 2.4.2(a) hereof("Grant of Easement"), is recorded in the Official Records of the County. 2.3.1 Conditions of Buyer for Close of Escrow. The Close of Escrow and Buyer's obligation to purchase the Easement are subject to the satisfaction of the following conditions or Buyer's written waiver of such conditions, on or before the Closing Date. Buyer may waive in writing any or all of such conditions in its sole and absolute discretion. (a) The Purchase Price shall have been adjusted in accordance with this Agreement and a closing statement duly executed by Seller setting forth the Purchase Price and any adjustments thereto; ; 2 11164191 as (b) Seller shall have performed all obligations to be performed by Seller pursuant to this Agreement, (c) No event or circumstance shall have occurred, which, in the sole opinion of Buyer, would make any of Seller'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 Seller set forth in Sections 3.4 and 4.1 of this Agreement; (d) 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 Buyer, would render the Easement Area unsuitable for Buyer's intended use, materially increase the cost, or cause a material delay in the schedule for the development of the Easement Area; (e) The Title Company shall be committed to issue to Buyer, as of the Closing Date, the Title Policy (defined below) covering the Easement Area, subject only to the Permitted Exceptions. (f) Seller shall have executed and submitted to Escrow Holder the Affidavit of Non-Foreign Status By Transferor (Exhibit D) (g) Seller shall have caused any lien or charge of any deed of trust that encumbers the Easement Area to be subordinated to the rights of Buyer under the terms of the Easement. 2.3.2 Conditions of Seller for Close of Escrow. The Close of Escrow and Seller's obligation to sell and convey the Easement are subject to the satisfaction of the following conditions or Seller's written waiver of such conditions on or before the Closing Date. Seller 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) The Purchase Price shall have been adjusted in accordance with this Agreement and a closing statement duly executed by Buyer setting forth the Purchase Price and any adjustments thereto; (b) Buyer shall have performed all obligations to be performed by Buyer pursuant to this Agreement; (c) No event or circumstance shall have occurred which would make any of Buyer'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 Buyer 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 3 1316419 1 10 whose performance is required to satisfy such condition as soon as reasonably possible following the Close of Escrow. 2.4. Closing Documents. The parties shall deposit the following with Escrow Holder prior to the Close of Escrow: 2A.1 Buyer's Deposits. Buyer shall deposit: (a) The Purchase Price together with Buyer's escrow and other cash charges; and (b) A Certificate of Acceptance for the Grant of Easement executed by the City Clerk of the City of Palm Springs (See, Exhibit C . 2.4.2 Seller's Deposits. Seller shall deposit: (a) The Grant of Easement 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 Seller 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 Seller. 2.4.3 Deposits of Additional Instruments. =Seller and Buyer 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, Seller fails to deposit with Escrow Holder the executed Affidavit of Non-foreign Taxpayer Status which exempts Seiler from the withholding requirements of Section 1445 of the Internal Revenue Code of 1986, as amended, and the regulations thereunder, Seller 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, Seller fails to deposit with Escrow Holder any applicable tax document which exempts Buyer from California withholding requirements, if any, Seller 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 4 1116419 1 11 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 Buyer 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: (1) record the Grant of Easement 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 to Buyer; (iv)distribute to Seller the Purchase Price; and (v) deliver to Buyer the Title Policy covering the Easement Area subject only to the Permitted Exceptions, the Affidavit of Non-foreign Status, and the applicable California withholding exemption form, if any. 2.5.3 Real Estate Taxes. Seller shall pay real property taxes at the Close of Escrow, paid through Escrow proceeds, based on the most current real property tax bill available, including any additional property taxes that may be assessed after the Close of Escrow but that relate to the period prior to the Close of Escrow, regardless of when notice of those taxes is received or who receives the notice. Seller 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 as Buyer is a public agency exempt from payment of such taxes. Buyer further agrees to cooperate with Seiler 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 other than Seller's or Buyer's breach of or default of its respective obligations hereunder, or if this Agreement is terminated without default by either party as otherwise set forth herein, then 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, Buyer 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 three (3) business days after the Opening of Escrow, Lawyers Title & Escrow (the "Title Company") will furnish Buyer 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. Buyer 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 Buyer's approval, conditional approval, or disapproval of the title exceptions and other matters disclosed in the Title Commitment. All title exceptions not timely approved 5 111640 1 12 by Buyer will be deemed disapproved. All such exceptions and other matters disapproved by Buyer are referred to herein as "Disapproved Exceptions". It shall be the sole responsibility of Buyer to work with the Title Company to remove any Disapproved Exceptions, and if unsuccessful shall either purchase the Easement subject to the Disapproved Exceptions or terminate the Agreement. 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 Buyer pursuant to this Section 3.1. 3.2. Title Policy. Buyer'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 Buyer with liability equal to the Purchase Price, subject only to the Permitted Exceptions. At Buyer's option, Buyer may require an ALTA Extended Coverage Owner's Policy instead of the Standard Coverage Policy provided that Buyer pays any additional premium on account thereof. The form of title policy selected by Buyer shall be referred to herein as the "Title Policy". 3.3. 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 Buyer, including the right to remove and dispose of improvements, shall commence upon the execution of this Agreement by Seller. The Purchase Price includes, but is not limited to, full payment for such improvements and exclusive possession and use of the Easement Area. 3.4. Seller's Covenant Not to Further Encumber the Easement Area. Seller 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 any portion thereof, or enter into any agreement to do so, so long as this Agreement is in force. Seller shall timely discharge, prior to the Closing, any and all obligations relating to work performed on or conducted at or materials delivered to or for the Easement Area from time to time by Seller, or at Seller's direction or on its behalf, in order to prevent the filing of any claim or mechanic's lien with respect to such work or materials. 4. REPRESENTATIONS. WARRANTIES AND COVENANTS. 4.1. Seller's Representations. Warranties and Covenants. In addition to the representations, warranties, and covenants of Seller contained in other sections of this Agreement, Seller hereby represents, warrants and covenants to Buyer as follows, all of which shall survive the Close of Escrow: 4.1.1 Seller's Authority. Seller 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 Seller, and upon delivery to and execution by Buyer, shall be a valid and binding agreement of Seller. 6 11164191 13 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 Seller shall not enter into any such contracts during the terms of this Agreement without the prior consent of Buyer. 4.1.3 No Liens and Subordination. Seller warrants that at the time of the Close of Escrow, Seller shall have caused any lien and charge of any deed of trust that encumbers the Easement Area to be subordinated to the rights of Buyer under the terms of the Easement. 4.1.4 No Untrue Statements or Omissions of Fact. Each of the representations and warranties made by Seller 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 Seller contained in this Agreement, are conditions precedent to the Close of Escrow. Seller shall immediately notify Buyer of any fact or circumstance which becomes known to Seller which would make any of the representations or warranties in this Agreement untrue. 4.2. Buyer's Representations and Warranties. Buyer represents and warrants to Seller as follows, all of which shall survive the Close of Escrow: 4.2.1 Buyer's Authority. Buyer 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 Buyer and, upon delivery to and execution by Seller, shall be a valid and binding Agreement of Buyer. 4.2.2 No Untrue Statements or Omissions of Fact. Each of the representations and warranties made by Buyer 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 Buyer contained in this Agreement, are conditions precedent to the Close of Escrow. Buyer shall notify Seller immediately of any facts or circumstances which are contrary to the representations and warranties contained in this Agreement. 4.3. Mutual Indemnity. Seller and Buyer 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 7 11164191 y ,r ly City's operations under this Agreement and City will, at its option, either repair or pay for such damage. 5. CONDEMNATION. Seller and Buyer acknowledge that this transaction is a negotiated settlement in lieu of condemnation, and Seller 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, Seller (or Seller's tenant) is served with a Summons and Complaint in Eminent Domain in which Seller (or Seller's tenant) is a named defendant, upon the Close of Escrow, Seller agrees and consents to Buyer taking a default in the action. Moreover, the total compensation to be paid by Buyer to Seller is for all of Seller's interest in the Easement Area or as described and set forth in the Easement and any rights which exist or may arise out of the acquisition of the Easement for public purposes, including without limitation, Seller's interest in the land and any improvements and fixtures and equipment 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 Seller which might arise out of or relate in any respect to the acquisition of the Easement Area or Easement by the Buyer. The compensation paid under this Agreement does not reflect any consideration of or allowance for any relocation assistance and payments or other benefits which Seller may be entitled to receive, if any. Relocation assistance, if any, will be handled via separate Agreement. 6. BROKERS. Seller and Buyer 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 purchase and sale of the Easement and that no commissions or finder's fees are payable in connection with this transaction. Buyer and Seller 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. 8 11164191 15 7.3. Entire Agreement. This Agreement, together with all exhibits hereto and documents referred to herein, if any, constitute the entire agreement among the parties hereto with respect to the subject matter hereof, and supersede all prior understandings or agreements. This Agreement may be modified only by a writing signed by both parties. All exhibits to which reference is made in this Agreement are deemed incorporated in this Agreement whether or not actually attached. 7.4. Headings. Headings used in this Agreement are for convenience of reference only and are not intended to govern, limit, or aide in the construction of any term or provision hereof. 7.5. Choice of Law. This Agreement and each and every related document are to be governed by, and construed in accordance with, the laws of the State of California. 7.6. Severability. If any term, covenant, condition or provision of this Agreement, or the application thereof to any person or circumstance, shall to any extent be held by a court of competent jurisdiction or rendered by the adoption of a statute by the State of California or the United States invalid, void or unenforceable, the remainder of the terms, covenants, conditions or provisions of this Agreement, or the application thereof to any person or circumstance, shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby; provided that the invalidity or unenforceability of such provision does not materially adversely affect the benefits accruing to, or the obligations imposed upon, any party hereunder, and the parties agree to substitute for the invalid or unenforceable provision a valid and enforceable provision that most closely approximates the intent and economic effect of the invalid or unenforceable provision. 7.7. Waiver of Covenants. Conditions or Remedies. The waiver by one party of the performance of any covenant, condition or promise, or of the time for performing any act, under this Agreement shall not invalidate this Agreement nor shall it be considered a waiver by such party of any other covenant, condition or promise, or of the time for performing any other act required, under this Agreement. The exercise of any remedy provided in this Agreement shall not be a waiver of any other remedy provided by law, and the provisions of this Agreement for any remedy shall not exclude any other remedies unless they are expressly excluded. 7.8. Leaal Advice and Construction. Each party has received 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 shaft be no presumption in the interpretation of this Agreement that any ambiguity is to be resolved against any party hereto. The parties waive expressly each and all provisions of California Civil Code Section 1654, which provides: "IN CASES OF UNCERTAINTY NOT REMOVED BY THE PRECEDING RULES, THE LANGUAGE OF A CONTRACT SHOULD BE INTERPRETED MOST STRONGLY AGAINST THE PARTY WHO CAUSED THE UNCERTAINTY TO EXIST." g 1116419 1 16 7.9. Relationship of Parties. The parties agree that their relationship is that of Seller and Buyer, 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 Seller nor Buyer shall assign its rights or delegate its obligations hereunder without the prior written consent of the other, which consent shall not be unreasonably withheld or delayed. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the successors and permitted assigns of the parties to this Agreement. 7.12. 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. Federal Express), delivered by mail, sent by registered or certified mail, return receipt requested, or sent via telecopier, as follows: If to Buyer, 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 Go Woodruff, Spradlin & Smart 555 Anton Boulevard, Suite 1200 Costa Mesa, CA 92626 Facsimile No.: (714)835-7787 Telephone No.: (714) 558-7000 If to Seller, to: Mark E& Elizabeth Fredenburg and Heather Jacques Brown, et al. 10000 Tilton Mine Rd Redding, CA 96001 10 11164191 17 If to Escrow Holder, to: Kimberly Rogers Lawyers Title& Escrow 777 E. Tahquitz Canyon Way Palm Springs, CA 92262 Facsimile No.: (866) 350-3317 Telephone No.: (760) 327-6523 Notices delivered by air courier shall be deemed to have been given the next business day after deposit with the courier and notices mailed shall be deemed to have been given on the second business day following deposit of same in any United States Post Office mailbox in the state to which the notice is addressed or on the third business day following deposit in any such post office box other than in the state to which the notice is addressed, postage prepaid, addressed as set forth above. Notices sent via telecopy shall be deemed delivered the same business day transmitted if done so before 4:00 p.m., otherwise delivery shall be considered to be on the next business day. The addresses, addressees, and telecopy numbers for the purpose of this Paragraph, may be changed by giving written notice of such change in the manner herein provided for giving notice. Unless and until such written notice of change is received, the last address, addressee, and telecopy number stated by written notice, or provided herein if no such written notice of change has been received, shall be deemed to continue in effect for all purposes hereunder. 7.13. Survivability. All covenants of Buyer or Seiler 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, 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 terns 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." 11 11164191 18 7.15 City Council Approval of Agreement. This Agreement is subject to the approval of the Buyer's City Council. If this Agreement remains unapproved by the Buyer's City Council then the parties will have no further obligation under this Agreement. If Buyer's 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] 12 11164191 19 IN WITNESS WHEREOF, the parties have executed this Agreement, which shall only became effective as of the day and year the last of the parties set forth below signs this Agreement. BUYER SELLER CITY OF PALM SPRINGS, a California Mary Sheila Comeau, Antita Comeau and charter city and municipal corporation, Michele Comeau, as Trustees of the J. Laurent Leger Comeau and Mary Sheila Comeau Revocable Living Trust dated By: March 13, 1990—Survivor's Trust, as to an David H. Ready undivided 1/3 interest; Mark E. Fredenburg City Manager and Elizabeth J. Fredenburg, Trustees of Dated: the Fredenburg Revocable Living Trust dated September 30, 1993, as to an Attest: undivided 1/3 interest; and Heather Jacques Brown and Stephen G. Brown , By: Trustees of the Heather Jacques Brown James Thompson and Stephen G. Brown Revocable Living 11 City Clerk Trust dated January 10, 1 Itan �( Dated: und' ided 1/3 i st By: Approved as to form by: Mary Sh ila Comeau, Trustee Dated: WOODRUFF, SPRADLIN & SMART By. An' Comeau, Trustee By: Dated: 41-*v Douglas C. Holland, Esq. Lo City Attorney BY: Michele Co,�n au, Trustee Dated: yppf�g//(p By: 44 r_ r'�t Ma E. Fred rg, Trustee Dazed: By. Eliza J. F bu , Trustee Dated: o'/�/a /6 By /f Heather Jaccffies ftwn, Trustee Dated: B G. Stephen Brown, Trustee 13Dated: 2 —e-�6 1116419 1 20 Exhibit List Exhibit A — Legal Description of the Easement Area Exhibit B — Depiction of the Easement Area Exhibit C — Form of Grant of Easement (With Certificate of Acceptance) Exhibit D —Affidavit of Non-foreign Taxpayer Status 14 1116d 19 I 21 ACCEPTANCE BY ESCROW HOLDER: LAWYERS TITLE & ESCROW 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: LAWYERS TITLE& ESCROW By: Name: Its: IIIWI91 22 Exhibit"A"to the Easement LEGAL DESCRIPTION OF THE RIGHT OF WAY 1116419 I 23 EXHIBIT"A" SLOPE EASEMENT APN 669-070-003 THAT PORTION OF THE NORTHEAST QUARTER OF SECTION 22, TOWNSHIP 3 SOUTH, RANGE 4 EAST, SAN BERNARDINO MERIDIAN, IN THE CITY OF PALM SPRINGS, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE INTERSECTION OF THE CENTER LINE OF SOUTHERN PACIFIC RAILROAD WITH THE CENTER LINE OF INDIAN CANYON DRIVE (FORMERLY INDIAN AVENUE) AS SHOWN ON RECORD OF SURVEY FILED IN BOOK 18 OF RECORDS OF SURVEY AT PAGE 2 ON AUGUST 20, 1951; THENCE ALONG SAID CENTER LINE OF INDIAN CANYON DRIVE NORTH 00"19'08" EAST 256.61 FEET TO AN ANGLE POINT IN THE NORTHEASTERLY LINE OF AN OVERHEAD CROSSING EASEMENT IN FAVOR OF THE COUNTY OF RIVERSIDE RECORDED OCTOBER 22. 1952 IN BOOK 1409, AT PAGES 566 AND 575 OF OFFICIAL RECORDS; THENCE LEAVING SAID CENTER LINE ALONG SAID NORTHEASTERLY LINE NORTH 50"53'07" WEST 96.23 FEET TO A POINT ON A LINE PARALLEL WITH AND DISTANT 75.00 FEET WESTERLY OF THE EASTERLY LINE OF SAID NORTHEAST QUARTER OF SECTION 22, SAID EASTERLY LINE ALSO BEING THE CENTER LINE OF SAID INDIAN CANYON DRIVE, SAID POINT BEING THE TRUE POINT OF BEGINNING; 1. THENCE LEAVING SAID NORTHEASTERLY LINE ALONG SAID PARALLEL LINE NORTH 00019'08"EAST 556.98 FEET; 2. THENCE LEAVING SAID PARALLEL LINE SOUTH 5013'38" WEST 522.93 FEET TO THE NORTHEASTERLY LINE OF THAT CERTAIN STRIP OF LAND 400 FEET WIDE, GRANTED TO THE SOUTHERN PACIFIC RAILROAD COMPANY, BY ACT OF CONGRESS, APPROVED ON MARCH 3, 1875; 3. THENCE ALONG SAID NORTHEASTERLY LINE OF THAT CERTAIN STRIP OF LAND 400 FEET WIDE SOUTH 50653'07"EAST 57.41 FEET TO THE TRUE POINT OF BEGINNING. AREA = 12,461 SQUARE FEET, MORE OR LESS SEE EXHIBIT"B"ATTACHED AND BY THIS REFERENCE MADE A PART HEREOF, THE BEARINGS AND DISTANCES USED IN THE ABOVE DESCRIPTION ARE BASED ON THE CALIFORNIA COORDINATE SYSTEM OF 1983, ZONE 6. MULTIPLY DISTANCES SHOWN BY 1.00002570 TO OBTAIN GROUND DISTANCES. SIGNATURE ��14 ti vc^ Z -5-2016 0L �AN.D MICHAEL A. HAVENER DATE �� c PLS 7354 p No. 7354 (C)F CA05��`r Page 1 of 1 24 Exhibit"B"to the Easement DEPICTION OF THE RIGHT OF WAY 1116419 1 25 EXHIBIT $$ B " hIULTIPLY DISTANCE BY 1.00002570 TO OBTAIN GROUND DISTANCES LEGEN SLOPE EASEMENT (SLOPE) AREA = 12,461 SQ. FT., MORE OR LESS P.O.C. POINT OF COMMENCEMENT T.P.O.B. TRUE POINT OF BEGINNING E1 OVERHEAD CROSSING EASEMENT IN FAVOR OF THE COUNTY OF RIVERSIDE Ltj REC. 10/22/1952 IN BK. 1409, PG. 566 O.R. AND BK 1409, PG. 575 O.R. \� M APN 669-070=003 NON- OTT F EMEN RIGHT-OF-WAY FOR DITCHES OR CANALS ttT Li, c CONSTRUCTED BY THE AUTHORITY OF THE UNITED Z ci cN STATES AND RESERVING UNTO THE UNITED STATES, ITS PERMITTEES OR LICENSEES, THE RIGHT TO Ltd CID � OCCUPY AND USE ANY PART OF SECTION 22 LYING cc WITHIN FIFTY FEET OF THE CENTER LINE OF THE co TRANSMISSION LINE RIGHT-OF-WAY OF THE ' Q COACHELLA VALLEY ICE AND ELECTRIC COMPANY 75' 75' REC. 11/23/1921 IN BK. 8, PG. 204 OF PATENTS A POLE LINE EASEMENT IN FAVOR OF THE 71 Z SOUTHERN CALIFORNIA, TELEPHONE CO. REC. 7/10/1933 ci+ 0 IN RK. 131, PG. 119 O.R. LrI --:Zr �- .< --, Z LL, CO THE J.J.LAURENT LEGER COMEAU AND MARY SHEILA COMEAU REVOCABLE LIVING TRUST DATED 3 3 1990 - :: $ SURVIVOR'S TRUST, THE FREDENBURG REVOCABLE LL C/T :.:'.: LIVING TRUST DATED 9/30/1993, AND THE HEATHER JACQUES BROWN AND STEPHEN G. BROWN REVOCABLE Ell = 0 LIVING TRUST DATED 1/10/1995. Z y�o `A.A. S`R SO, o� � r.P.ae. r't fJ -7 nn I L, * No. 7354 'rO A.9 �� 10 COX CALIF /C rls%'=, P.U.G. z INT. OF THE CENTER LINE E INDIAN CANYON DR. (INDIAN AVE.) 0 50 100 200 AND SOUTHERN PACIFIC RAILROAD AS SHOWN ON ROS 18/2 /�► SHEET I OF 1 SHEETS REVISED BY,. DATE: ALE CITY OF PALM SPRINGS 1' - 1D0' DRAW BY: KA DATE.5-20-15 DOC. NO. INDIAN CANYON DRIVE WIDENING CHECKED BY. MH DATE 2-5-16 APN 669-070-003 APPROVED BY: DATE: SEE OWNER DWG. No. S ABOVE 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 16103 SLOPE EASEMENT APN#669-070-003 For a valuable consideration, receipt of which is hereby acknowledged, Mary Sheila Comeau,Antita Comeau and Michele Comeau as Trustees of the J Laurent Leger Comeau and Mary Sheila Comeau Revocable Living Trust dated March 13 1990 — Survivoes Trust, as to an undivided 1/3 interest: Mark E. Fredenburg and Elizabeth J. Fredenburg. Trustees of the Fredenburg Revocable Living Trust dated September 30, 1993, as to an undivided 113 interest: and Heather Jacques Brown and Ste hen G. Brown Trustees of the Heather Jacques Brown and Stephen G. Brown Revocable Living Trust dated January 10 1995 as to an undivided 113 interest, (hereinafter "Grantor"), hereby GRANTS to the CITY OF PALM SPRINGS, a California charter city and municipal corporation, (hereinafter "Grantee"), a non-exclusive easement for grading (cutting into and filling over existing ground) and appurtenant uses, together with the right to construct, maintain, repair, and use the slope constructed for the benefit of Grantee, in, on, under, over and across the real property in the City of Palm Springs, Riverside County, California, more particularly described on Exhibit "A" and shown on Exhibit "B" attached hereto and incorporated herein by this reference. Mary Sheila Comeau, Anttta Comeau and Michele Comeau, as Trustees of the J. Laurent Leger Comeau and Mary Sheila Comeau Revocable Living Trust dated March 13, 1990—Survivor's Trust, as to an undivided 1/3 interest; Mark E. Fredenburg and Elizabeth J. Fredenburg,Trustees of the Fredenburg Revocable Living Trust dated September 30, 1993, as to an undivided 113 Interest; and Heather Jacques Brown and Stephen G. Brown , Trustees of the Heather Jacques Brown and Stephen G. Brown Revocable Living 11164191 27 Trust dated January 10, 1996,as to an undivided 1/3 interest Dated: By: Mary Sheila Comeau, trustee By: Anita Comeau, trustee By: Michele Comeau, trustee By: Mark E. Fredenburg, trustee By: Elizabeth J. Fredenburg, trustee By: Heather Jacques Brown, Trustee By: Stephen G. Brown, Trustee 1116419.1 p �u 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 1316419 I 29 CERTIFICATE OF ACCEPTANCE This is to certify that the interest in real property conveyed to the CITY OF PALM SPRINGS, a California charter city and municipal corporation ("City"), by the Grant of Easement dated , 20_, from Mary Sheila Comeau, Antita Comeau and Michele Comeau, as Trustees of the J. Laurent Leger Comeau and Mary Sheila Comeau Revocable Living Trust dated March 13, 1990 — Survivor's Trust, as to an undivided 1f3 Interest; Mark E. Fredenburg and Elizabeth J. Fredenburg, Trustees of the Fredenburg Revocable Living Trust dated September 30, 1993, as to an undivided 113 Interest; and Heather Jacques Brown and Stephen G. Brown , Trustees of the Heather Jacques Brown and Stephen G. Brown Revocable Living Trust dated January 10, 1995, as to an undivided 1/3 interest, the provisions of which are incorporated by this reference as though fully set forth in this Certification, is hereby accepted by the undersigned officer(s) on behalf of the City pursuant to authority conferred by the City's governing body and City, as buyer/ Grantee, consents to recordation thereof by its duty authorized officer. Dated: By: David H. Ready, City Manager 11164191 30 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). (II) 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. I116419 1 31 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 Transferors 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: 11164191 32 ATTACHMENT 2 33 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: James Thompson City Clerk CITY OF PALM SPRINGS 3200 E.Tahquitz Canyon Way Palm Springs,CA 92262 Exempt from recording charges under Government Code 16103 (Space above this line reserved for Recorder's use) TEMPORARY CONSTRUCTION EASEMENT AGREEMENT PROJECT: Indian Canyon Drive Widening and Bridoe Replacement Cal UPRR Federal Project No. BRLO-5282(0171 City Pro'ect No. 01-11 APN(s): 669-070-003 TEMPORARY CONSTRUCTION EASEMENT AGREEMENT, (the "Agreement°), is hereby made this day of 20_, by and between the City of Palm Springs, a California charter city and municipal corporation, organized and existing in the County of Riverside, under and by virtue of the laws of the State of California, hereinafter designated as the "City" and/or "Grantee", Mary Sheila Comeau, Antita Comeau and Michele Comeau, as Trustees of the J. Laurent Leger Comeau and Mary Sheila Comeau Revocable Living Trust dated March 13, 1990 — Survivor's Trust, as to an undivided 113 Interest; Mark E. Fredenburg and Elizabeth J. Fredenburg,Trustees of the Fredenburg Revocable Living Trust dated September 30, 1993, as to an undivided 113 interest; and Heather Jacques Brown and Stephen G. Brown , Trustees of the Heather Jacques Brown and Stephen G. Brown Revocable Living Trust dated January 10, 1996, as to an undivided 1/3 interest, hereinafter designated as the "Grantor. City/Grantee and Grantor are individually referred to as"Party" and are collectively referred to as the "Parties". RECITALS A. Grantor is the owner of certain real property located in the City of Palm Springs, (the "City"), the County of Riverside, (the "County"), State of California, (the "State'), which is identified by Assessor Parcel Number(s) 669-070.003, (referred to as the "Property"). S. Grantee desires to obtain from Grantor a temporary construction easement over a portion of the Property, and Grantor hereby agrees to authorize Grantee and its assignees, including its contractor(s), to enter, for a limited duration and term subject to the conditions herein this Agreement, a portion of the Property as described on the attached legal description, referenced as Exhibit "A", and shown on Temporary Construction Easement Agreement Page 1 of 7 34 the attached map, referenced as Exhibit "B", (the "Easement Area"), which are attached hereto and incorporated herein by reference. C. The Parties desire by this Agreement to provide the terms and conditions for the Grantee's acquisition from Grantor of a Temporary Construction Easement, as defined below, over the Easement Area. AGREEMENT NOW, THEREFORE, in consideration of performance by the Parties of the promises, covenants, and conditions herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: 1. Grantor hereby grants to City and its assignees, including its contractor(s), the right to enter upon and use Grantor's Property in the City of Palm Springs, Riverside County, State of California, described as Assessor's Parcel Number(s) 669-070-003 for all purposes necessary to facilitate and accomplish the construction and installation of various public street improvements ("Temporary Construction Easement") associated with the Indian Canyon Drive Widening and Bridge Replacement c@ UPRR, Federal Project No. BRIO-5282 (017), City Project No. 01-11 ("Project"). 2. The Temporary Construction Easement, used during construction of the Project consists of approximately 10,391 square feet as described on the attached legal description, referenced as Exhibit "A", and shown on the attached map, referenced as Exhibit"B" (hereinafter the "Easement Area"). 3. It is agreed and confirmed by the parties hereto that notwithstanding other provisions in this Agreement, the right of possession and use of the Easement Area by the Grantee, including the right to remove and dispose of improvements, shall commence on April 30, 2016 or the close of escrow controlling this transaction, whichever occurs first, and the amount shown in Section 15 herein includes, but is not limited to, full payment for such possession and use, including damages, if any, from said date. Temporary Construction Easement will expire on April 30, 2021. Upon the City's recordation of a Notice of Completion for the Project with the Riverside County Recorder's Office, the Temporary Construction Easement granted herein shall be automatically surrendered by Grantee, and Grantee's interests thereto shall be automatically reverted to Grantor as if quitclaimed by Grantee, and shall no longer represent any title interest of or to Grantor's Property. Nevertheless, if requested by Grantor following such termination, City will execute a quitclaim deed confirming such termination. Temporary Construction Easement Agreement Page 2 of 7 35 4. The rights granted herein include the right to enter upon and to pass and repass over and along the Easement Area, and to deposit tools, implements and other materials thereon by City, or its successors and assigns, its officers, agents and employees, and by persons or entities under contract with City, its successors and assigns, wherever and whenever necessary for the purpose of completing the Project in accordance with applicable laws. The City's activities may involve surveying, staking, excavation, grading, and other related uses that are reasonably required to construct the Project City agrees not to damage Grantor's property in the process of performing such activities. At all times during the term of this Agreement (and during construction of the Project), Grantor's property will remain accessible for Grantor's ingress and egress. 5. At the expiration of the Temporary Construction Easement, but before its relinquishment to Grantor, the City will remove all debris, contaminants and personal property from the land and the land shall be restored to a condition substantially similar to the condition that existed before the City's use began, unless otherwise agreed to by the Grantor. 6. Any notice to be given or other document or documents to be delivered to either Party by the other hereunder may be delivered in person or may be deposited in the United States Mail in the State of California, duly registered or certified, with postage prepaid, and addressed as follows: If to Grantee, to: Attn: City Clerk City of Palm Springs 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 Facsimile No.: (760) 322-8332 Telephone No.: (760) 323-8204 If to Grantor, to: Mark E & Elizabeth Fredenburg and Heather Jacques Brown et al. 10000 Tilton Mine Rd Redding. CA 96001 7. To the extent permitted by law, City (or its contractor) shall indemnify, defend and hold harmless Grantor from all losses, liabilities, costs, damages, expenses, causes of action, suits, claims or judgments, including attorney's fees and costs, (collectively, "Claims") arising directly out of or in connection with any act or omission of City, its employees, representatives, agents, suppliers or subcontractors, pursuant to this Agreement or otherwise, provided, however, that the foregoing duty to defend, indemnify and hold harmless the Grantor from Temporary Construction Easement Agreement Page 3 of 7 36 and against any Claims shall not apply to any Claims arising from the negligence or intentional misconduct of Grantor. 8. Grantor hereby warrants that they are the owners of the Property described above and that they have the right to grant City, its successors or assigns, permission to enter upon and use the Easement Area. 9. This Agreement is the result of negotiations between the Parties hereto. This Agreement is intended by the Parties as a final expression of their understanding with respect to the matters herein, and is a complete and exclusive statement of the terms and conditions thereof. 10. This Agreement shall not be changed, modified, or amended except upon the written consent of the Parties hereto. 11. This Agreement supersedes any and all other prior agreements or understandings, oral or written, in connection therewith. 12, Grantor, its assigns and successors in interest, shall be bound by all the terms and conditions contained in this Agreement, and all the Parties thereto shall be jointly and severally liable thereunder in accordance with Civil Code Section 1468. 13. City shall pay to Grantor the total sum of Eight Thousand Four Hundred Sixteen dollars ($8,416), (the "Rental Price"), for the right to enter upon and use Grantor's land in accordance with the terms hereof. Grantor hereby expressly and unconditionally waives any and all claims for damages, relocation assistance benefits, severance damages, interest, loss of goodwill, claims for inverse condemnation or unreasonable pre-condemnation conduct, or any other compensation or benefits, other than for payment of the Rental Price, it being understood that the Rental Price constitutes complete and full settlement of all acquisition claims, liabilities, or benefits of any type or nature whatsoever, whether known or unknown as of the date of this Agreement, relating to or in connection with the Temporary Construction Easement or any other rights granted under this Agreement. Payment shall be made within thirty (30) days after execution of this Agreement, or pursuant to the terms of and through the close of escrow if acquisition of the Temporary Construction Easement is associated with the City's acquisition from Grantor of permanent right-of-way over a portion of the Property. Grantor hereby acknowledges that it has been advised by its attorney and is familiar with the provisions of California Civil Code section 1542, which provides as follows: "A general release does not extend to claims which the Creditor does not know or suspect to exist in his favor at the time of Temporary Construction Easement Agreement Page 4 of 7 37 executing the release, which if known by him must have materially affected his settlement with the debtor." By signing below, Grantor acknowledges that it may have sustained damage, loss, costs or expenses which are presently unknown and unsuspected, and such damage, loss, costs or expenses which may have been sustained, may give rise to additional damage, loss, costs or expenses in the future. Nevertheless, Grantor hereby acknowledges that this Agreement has been negotiated and agreed upon in light of that situation, and hereby expressly waives any and all rights which it may have under California Civil Code section 1542, or under any statute or common law or equitable principal of similar effect, except as set forth in this Section 13. (SIGNATURE PAGE FOLLOWS) Temporary Construction Easement Agreement Page 5 of 7 38 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year first above written. GRANTEE: GRANTOR: CITY OF PALM SPRINGS, a California charter city and municipal corporation Mary Sheila Comeau, Antita Comeau and Michele Comeau, as Trustees of the J. Laurent Leger Comeau and Mary Sheila Comeau Revocable By: Living Trust dated March 13, 1990 — David H. Ready, City Manager Survivor's Trust, as to an undivided 1/3 interest; Mark E. Fredenburg and ATTEST: Elizabeth J. Fredenburg, Trustees of the Fredenburg Revocable Living Trust dated September 30, 1993,as to an undivided 113 Interest; and By: Heather Jacques Brown and Stephen James Thompson, City Clerk G. Brown , Trustees of the Heather Jacques Brown and Stephen G. Brown Revocable Living Trust dated _ January 10, 1995, as to an undivided APPROVED AS TO FORM: 113 interest � WOODRUFF, SPRADLIN &SMART B . / r Mary Sheili Comeau, Trustee Dated: By: By. ,u Douglas C. Holland, Esq., City Attorney An meau, Trustee Dated: By��nt e '✓� Michele Comeau, Trustee 411sd Dated: // Y By: � . tom MarE. rede urg, Trustee f Dat d: By:& Elizabeth . Frede rg, Trustee Dated: By: Hea h rJacqueftow rustee Date: 2 -8 /6 By: Stephen G. Brown, Trustee Date: Z-8/(o Temporary Construction Easement Agreement Page 6 of 7 39 ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA ) COUNTY OF _��'Y]S�Y� ss. On lovivxYU 2Q{ p before me, A Notary Public, personally appeared who proved to me on e basis of atisfactory evidence to be t e persor� whose name�j is/g� subscribed to the within instrument nd acknowledged to me that he/shet� executed the same in his/her/tri authorized capacity( and that by his/her/their signature on the instrument the person or the entity upon behalf of which the person S(�cted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of Califomia that the foregoing paragraph is true and correct. WITNESS my hand and official seal. VANESSAM. fHCORAN; 0 COMM.B 197A91t - NOTARYFUSUC-cwFORNuQ 'Signature SACRAM-WOCOUNW 0 COWL EXPM NIM 13,2HG" - - -- -- - - - - - - My Commission Expires: ��j, �lDl This area for official notarial seal Temporary Construction Easement Agreement 40 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 San oke4 � ) On v,14, ate,up before me, �y y��CM1_, Notary Public, personally appeared r r c- who proved to me on the basis of satisfact ry evidence to be the pers whose namea is/40 subscribed to the within instrument and acknowledged to me that helshe/tep executed the same in his/her/tC(r) authorized capaci ie ), and that by his/her/their signatur�sy on the instrument the person, or the entity upon behalf of which the personapacted, 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. 0 V !�*1�1 974911 //J , - rarw+rr�euc-cuuow+u0 sACRAMENiO COUMY n �111tc � coAw.E�satnm.�s,aore Signature My Commission Expires: LEI V� act t This area for official notarial seal Temporary Construction Easement Agreement 41 ACKNOWLEDGEMENT A notary public or other officer completing this certificate verges 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. NCZilCkZs } On ( jr� . 2QlO , before me, \ � (t;�} Notary Public, �'� personally appeared o proved to me on the b sis of satisfactory evidence to be the perso ose names i r subscribed to the within instrument and acknowledge to me that he/sh r executegAe same in his/hed i authorized capacit a and that y his/her/ I his/her/&ie signature�n the i ument the person, or the entity upon behalf of which the persor s(� stru cted, executed the inment. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS m hand d official seal. VANESSAM.CO7HRAN my an o 0 '�� COMM #2149408 (ry .� NOTARY PUKIC•CAUFORNIA0 SACRAMENTO COUNTY n �,(� COMM.EXPIRES APRIL 17.2020� lgnature r My Commission Expires: This area for official notarial seal Temporary Construction Easement Agreement 42 Exhibit List Exhibit A —Legal Description of the Easement Area Exhibit B — Depiction of Easement Area Temporary Construction Easement Agreement Page 7 of 7 43 Exhibit "A" LEGAL DESCRIPTION OF THE EASEMENT AREA Temporary Construction Easement Agreement Exhibit"A" 44 EXHIBIT "A" TEMPORARY CONSTRUCTION EASEMENT APN 669-070-003 THAT PORTION OF THE NORTHEAST QUARTER OF SECTION 22, TOWNSHIP 3 SOUTH, RANGE 4 EAST, SAN BERNARDINO MERIDIAN, IN THE CITY OF PALM SPRINGS, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE INTERSECTION OF THE CENTER LINE OF SOUTHERN PACIFIC RAILROAD WITH THE CENTER LINE OF INDIAN CANYON DRIVE (FORMERLY INDIAN AVENUE) AS SHOWN ON RECORD OF SURVEY FILED IN BOOK 18 OF RECORDS OF SURVEY AT PAGE 2 ON AUGUST 20, 1951; THENCE ALONG SAID CENTER LINE OF INDIAN CANYON DRIVE NORTH 00019'08" EAST 256.61 FEET TO AN ANGLE POINT IN THE NORTHEASTERLY LINE OF AN OVERHEAD CROSSING EASEMENT IN FAVOR OF THE COUNTY OF RIVERSIDE RECORDED OCTOBER 22, 1952 IN BOOK 1409, AT PAGES 566 AND 575 OF OFFICIAL RECORDS; THENCE LEAVING SAID CENTER LINE ALONG SAID NORTHEASTERLY LINE NORTH 50053'07" WEST 96.23 FEET TO A POINT ON A LINE PARALLEL WITH AND DISTANT 75.00 FEET WESTERLY OF THE EASTERLY LINE OF SAI❑ NORTHEAST QUARTER OF SECTION 22, SAID EASTERLY LINE ALSO BEING THE CENTER LINE OF SAID INDIAN CANYON DRIVE; THENCE LEAVING SAID NORTHEASTERLY LINE ALONG SAID PARALLEL LINE NORTH 00°19'08"EAST 566.98 FEET TO THE TRUE POINT OF BEGINNING; 1. THENCE CONTINUING ALONG SAID PARALLEL LINE NORTH 00019'08" EAST 82.96 FEET TO THE NORTHEAST CORNER OF PARCEL 1 AS SHOWN ON RECORD OF SURVEY FILED IN BOOK 33 OF RECORDS OF SURVEY AT PAGE 45 ON MARCH 2, 1961; 2. THENCE ALONG THE NORTHERLY LINE OF SAID PARCEL NORTH 69"22'22" WEST 24.91 FEET; 3. THENCE LEAVING SAID NORTHERLY LINE SOUTH 00019'08" WEST 197.78 FEET; 4. THENCE SOUTH 5413'38" WEST 396A5 FEET TO THE NORTHEASTERLY LINE OF THAT CERTAIN STRIP OF LAND 400 FEET WIDE, GRANTED TO THE SOUTHERN PACIFIC RAILROAD COMPANY, BY ACT OF CONGRESS, APPROVED ON MARCH 3, 1875; 5. THENCE ALONG SAID NORTHEASTERLY LINE OF THAT CERTAIN STRIP OF LAND 400 FEET WIDE SOUTH 50053'07"EAST 16.07 FEET; 6. THENCE LEAVING SAID NORTHEASTERLY LINE OF THAT CERTAIN STRIP OF LAND 400 FEET WIDE NORTH 5°13'38" EAST 522.93 FEET TO THE TRUE POINT OF BEGINNING. AREA= 10,391 SQUARE FEET, MORE OR LESS SEE EXHIBIT"B"ATTACHED AND BY THIS REFERENCE MADE A PART HEREOF. THE BEARINGS AND DISTANCES USED IN THE ABOVE DESCRIPTION ARE BASED ON THE CALIFORNIA COORDINATE SYSTEM OF 1983, ZONE 6. MULTIPLY DISTANCES SHOWN BY 1.00002570 TO OBTAIN GROUND DISTANCES. Page 1 of 2 45 EXHIBIT "A" TEMPORARY CONSTRUCTION EASEMENT APN 669-070-003 SIGNATURE ^' ` f�cT^^rn v q 2-5 2016 ?`'FiD L UR6 MICHAEL A. HAVENER DATE PLS 7354 A * No. 7354 Page 2 of 2 46 Exhibit "B" DEPICTION OF THE EASEMENT AREA Temporary Construction Easement Agreement Exhibft"B" 47 EXHIBIT " B " MULTIPLY DISTANCE BY 1.O0DO2570 N 8972'22" W TO OBTAIN GROUND DISTANCES I EGEN� 24.91� NE COR PAR. 1 TEMPORARY CONSTRUCTION EASEMENT (TCE) ' `RS. 33/45 LL/�/1J AREA = 10,391 SO. FT., MORE OR LESS $ P.O.C. POINT OF COMMENCEMENT P T.P.O.B. TRUE POINT OF BEGINNING g Et OVERHEAD CROSSING EASEMENT IN ^ T.P.O.B. FAVOR OF THE COUNTY OF RIVERSIDE r TCE REC. 10/22/1952 IN W. 1409, PG. LtT 566 OR AND BK. 1409, PG. 575 O.R. y~ f'VJ a APN 669-070-003 NON-PLOJWLF EASEMENTS w I ` ��W) g RIGHT-OF-WAY FOR DITCHES OR CANALS LLT Cr' c "CONSTRUCTED BY THE AUTHORITY OF THE UNITED � , STATES AND RESERVING UNTO THE UNITED STATES, t) ITS PERMITTEES OR LICENSEES, THE RIGHT TO tLI z r W OCCUPY AND USE ANY PART OF SECTION 22 LYING En � a � WITHIN FIFTY FEET OF THE CENTER LINE OF THE co as a TRANSMISSION LINE RIGHT-OF-WAY OF THE !R im COACHELLA VALLEY ICE AND ELECTRIC COMPANY 75' 75' REC. 11/23/1921 IN BK. 6. PG. 204 OF PATENTS. fY�1 A POLE LINE EASEMENT IN FAVOR OF THE , Z SOUTHERN CALIFORNIA TELEPHONE CO. REC. 7/10/1933 Y 1 cy 0 IN BK. 131, PG. 119 O.R. OWNERS Q ca Q THE J. LAURENT LEGER COMEAU AND MARY SHELA COMEAU REVOCABLE LIVING TRUST DATED 3/13/1990 - �� el) oX SURVIVORS TRUST, THE FREOENSURG REVOCABLE LIVING TRUST DATED 9/3O/1993, AND THE L� HEATHER JACQUES BROWN AND STEPHEN G. BROWN REVOCABLE y z LIVING TRUST DATED 1/10/1995. p Cl Cl LAND 1 � W * No. 7354 OF CALM Ycl P.O.C. I Fj N : INT. OF THE CENTER LINE OF INDIAN CANYON DR. (INDIAN AVE.) 0 50 100 200 AND SOUTHERN PACIFIC RAILROAD I AS MOWN ON ROS 18/2 I SHEET 1 OF i SHEETS REVISED BY: DATE: LE pTM OF PAW SPRINGS 1" = 1w DRAYM BY: KA DATE.5-20-15 DOC. NO. INDIAN CANYON DRIVE WDENING CHECKED BY: MH DATE:2-5-16 APN 669-070-003 APPROVED BY: DATE: SEE OWNERS ABOVE DWG, N0. 48 ATTACHMENT 3 49 STATE OF CALIFORNIA-THE RESOURCES AGENCY DEPARTMENT OF FISH AND GAME ENVIRONMENTAL FILING FEE CASH RECEIPT Receipt#: 200900795 State Clearinghouse#(if applicable): 2009071044 Lead Agency: CITY OF PALM SPRINGS Date: 11/05/2009 Counly AgenryofFihng: Riverside Document No: 200900795 Project Title: INDIAN CANYON DRIVE&BRIDGE WIDENING Project Applicant Name: DOKKENENGINEERING Phone Number: Project AppNcant Address: 2365 IRON POINT RD,SUITE 200 FOLSOM, CA 95630-8709 Project AppNcant: Private Entity CHECK APPLICABLE FEES: ❑Environmental Impact Report ❑X Negative Declaration 1993.00 ❑Application Fee Water Diversion(State Water Resources Control Board Only) ❑Project Subject to Certified Regulatory Programs ❑X CountAdminutratton Fee $64.00 ❑Project that is exempt from fees(DFG No Effect Determination(Form Attached)) ❑Project that is exempt from fees{Notice of Exemption) Total Received 2057.00 Signature and title oJperson receWing payment: n ta n a R+ n � n ii � x � rm- •• •• ti 11 e i [IN'1 IL � �•TI 3 '+t � fl r MII < I 9E LL Ti RJ O T Y9 E C �1 t- n M dF 11 a� x m y 1T.` .� i .c c r-r M 11 m m m a+ c .�.`. ii M 1 c m i1 to 1 r11 m li yF 1 I I y2 -IJ D� ro C'i N 11 11 I N 1 O ® L 'rot W 11 [O 11 1 ® 6t i @ r• if J II I Ul f11 1 4r1 If B f 4 11 If Notice of Determination Appendix D To: From: 10 Office of Planning and Research Public Agency: City of Palm Springs For US.Ala& Street Address: Address: 3200 E.Tahguitz Canyon Wa Palm Springs CA 92262 P.O.Box 30pkt 14001'enth St Contact: Marcus Fuller Sacramento, CA 95812-3044 Sacramento,CA 95814 Phone: (76D)323-8253 f Ql County Clerk County of.- Riverside Lead Agency(if different from aboverRIVERSOF CpONTY C Address: 2724 Gateway Drive Address: Nnv7nnq Riverside CA 92507 Contact: - RD,CLERK Phone: —�".Meyer Deputy 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): 2009071044 Project Title: Indian Canyon Drive and Bridge Widening Project Location (include county): Indian Canyon Drive over UPRR just south of Interstate 10, Riverside County. Project Description: The City of Palm Springs proposes to widen Indian Canyon Drive for a distance of approximately 4,000 feet south of its intersection with Garnet Avenue(south of Interstate 10). The Indian Canyon Drive Bridge,which crosses over the Union Pacific Railroad Tracks,would also be widened. The existing 2 lane road and bridge would be widened to a 6 lane facility. This is to advise that the Ci of Palm S s has approved the above described,project on Lead Agency or Responsible Agency 'Neg Declarat,INTY CLERK November 4.2009 and has made the following determinations regarding the above described projdored per P R.0°21152natior; (Date) POSTED 1.The project(❑will ®will not]have a significant effect on the environment. Nw O 11 2. ❑ An Environmental Impact Report was prepared for this project pursuant to the provisions of CEQ A. Jr 2009 ® A Negative Declaration was prepared for this project pursuant to the provisions of CEQA4emoved: 3.Mitigation measures[©were [1were not]made a condition of the appr6val of the project.8y: 4.A mitigation reporting or men[Loring plan[R was ❑ was not]adopted for this project. County of Riverside Dept 5.A statement of Overriding Considerations [❑was ®was not]adopted for this project. State of Californi 6.Findings[®were ❑were not]made pursuant to the provisions of CEQA. 'Phis 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 Pub/li�c at: 3200 E. Tah uitz Ca 1 on Wa Palm Spnngs,CA 92262 Signature(Public Agenc)� ,�A(t � Title Assistant Director of Public Works Ass.City Engineer Date Uw Date Received for filing at OPR Authority cited:Sections 21083,Public Resources Code. Reference Section 21000-21174,Public Resources Code. Revised 2005 51 ATTACHMENT 4 52 SFATF.OF CALIFORNIA BU.SINFSS TRANSPORTATION AND HOUSIN6 AGLNCY ARNOLD SC HWAR7.ENF.GGF.R Guvimrr DEPARTMENT OF TRANSPORTATION DISTRICT 8 ENVIRONMENTAL LOCAL ASSISTANCE(MS 1162) 464 W FST 4"STREET,6TH FLOOR SAN BERNARDINO,CA 92401 h'fex your power. PHONE (909)388-1804 Ae energy e�ciantl FAX (909)383-6494 TTY (909)383-6300 September 24,2009 Mr, Marcus Fuller Pile:08-Riv-Local Assistance 3200 East Tahquitz Canyon Way Palm Springs,CA.92201 FPN: BRLO 5282(017) STPLN 5282(016) Dear Mr. Fuller: The California Department of Transportation (Caltrans) has prepared the NEPA environmental determination (Categorical Exclusion)for the proposed project in the City of Palm Springs in the County of Riverside consisting of widennig the existing Indian Canyon Bridge from 2 to 6 lanes(86 -ultimate width) from UPRR overcrossing(bridge 56C0025)to Garnet Ave.The project will accommodate horizontal and vertical clearance requirements as dictated by CPUC and UPRR during final design. Caltrans would also like to reiterate the requirements of the NEPA Pilot Program MOU that became effective July 1, 2007. Pursuant to the MOU and Section 6005 of SAFETEA-LU codified at 23 U.S.C. 327(a)(2)(A), effective July 1. 2007 FHWA has assigned, and Caltrans has assumed, all the United States Department of Transportation (USDOT) Secretary's responsibilities under NEPA. The assignment applies to all projects on the State Highway System (SHS) and all Local Assistance Projects off the SI IS within the State of California. • I-ocal Agency or its consultant must do formal QC of environmental documents and technical reports paralleling Caltrans standards, to be confirmed by use of "External QC Form" provided to Caltrans. httr)://www.dat.ca.lzov/ser/foniis,htm • Local Assistance documents must use Annotated Outlines for EAs and EISs o Annotated Outlines are effective and efficient tools to ensure all requirements are met and to ensure consistency of terminology and treatment of issues. Agencies may use either the combined CEQA/NEPA outlines,or the NF.PA- only outline.httpa/www.dotca.eov/ser/forms.htm o One Caltrans standard for federal environmental documents is required. o If challenged,Caltrans must defend Local Agency documents in federal court;documents that follow standardized formats and procedures are more defensible • Local Agencies must send copies of. 1) Environmental documents, 2) technical reports, 3) summary lists of environmental commitments to be incorporated into PS&E, and 4) permits to Caltrans' DLAF, for files to facilitate audits and process reviews. The requirement to have environmental commitments and permits is not new (Local Assistance Procedures Manual Chapters 6, 12, 15, 17), but providing copy to DLAE is now mandated because of the need to provide rapid response to FHWA in process reviews and audits and because FHWA nationally is placing new emphasis on ensuring these commitments are carried out. If you have any questions regarding the CE,please call Julie Lugano at(909)383-1570. Sincerely, Aaron Burton Senior Environmental Planner Environmental Local Assistance "C'alvans impro ree mobdin,across C'ablonua 53 CATEGORICAL EXEMPTION/CATEGORICAL EXCLUSION DETERMINATION FORM 08-RIV-Palm Springs 0-Riv EIRLO 5282(017)and STPLN 5282(016) Dist.-Co.-Rte.(or Local Agency) P.MtP.M. E.A.(State project) Federal-Aid Project No.(Local project)/Proj.No. PROJECT DESCRIPTION: (Briefly describe project,purpose,location,limits,right-of-way requirements,and activities involved. Enter project description in this box. Use Continuation Sheet,if necessary The proposed project in the City of Palm Springs in the County of Riverside consists of widening the existing Indian Canyon Bridge from 2 to 6lanes(86'-ultimate width)from UPRR ovemiessing(bridge 5600025)to Garnet Ave,also construct north and south bridge approaches to improve traffic circulation and safety.The preject will accommodate horizontal and vertical clearance requirements as dictated by CPUC and UPRR during final design. CEQA COMPLIANCE (for State Projects only) Based on an examination of this proposal,supporting information,and the following statements(See 14 CCR 15300 et seq.): • If this project falls within exempt Gass 3,4,5,6 or 11,it 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 clue to unusual circumstances. • This project does not damage a scenic resource within an officially designated state scenic mgho y. • 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 (Check one) ❑ Exempt by Statute.(PRC 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— (PRC 21084;14 CCR 15300 et seq.) ❑ Categorically Exempt.General Rule exemption.[This project does not fall within an exempt class,but it can be seen with certainty that there is no possibility that the activity may have a significant effect on the environment(CCR 15061[bl[31) N/A N/A Print Name:Environmental Branch Chief Print Name:Project Manager/DLA Engineer N/A 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(EA)or Environmental Impact Statement(EIS),and • has considered unusual circumstances pursuant to 23 CFR 771.117(b) (htto:/Aaww.fhwa.doLoov/hepl23cfr771.htm-sec.771.117). 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(c)and 40 CFR 93. CALTRANS NEPA DETERMINATION (Check one) ❑ Section 6004: The State has been assigned,and hereby certifies that it has carried 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 7,2007, 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)(_❑_) • 23 CFR 771.117(d):activity(d)(_❑_) • Activity listed in the MOU between FHWA and the Slate ® Section 6005; Based on an examination of this proposal and supporting information,the State has determined that the project is a CE under Section 6005 of 23 U.S.C. 327. 1 Print Name:Environmental Branch Chief Print Nam r e Manager' A ngmeer Jy C' Signature Date Signatur Briefly list environmental commitments on confinuation sheet. Reference additional information,as appropriate(e.g.,air quality studies, documentation of conformity exemption,FHWA conformity determination if Section 6005 project: §106 commitments;§4(f);§7 results, Wetlands Finding;Floodplain Finding,additional studies:and design conditions).Revised September 15,2008 Page I of In 54 CATEGORICAL EXEMPTIONICATEGORICAL EXCLUSION DETERMINATION FORM Continuation Sheet 03-RIV-Palm Springs it BRLO 5282(017)and STPLN 5282(016) Dist.-Co.-Rte.(or Local Agency) P.M/P.M. E.A.(State project) Federal-Aid Project No.(Local project)!Prot.No. Continued from page 1: Project Components • Widen Indian Canyon Drive from 2 lanes to 6 lanes from UPRR overcrossing(bridge 56C0025)to Gamet Ave • Construct north and south bridge approaches to improve traffic circulation and safety. • The project will accommodate horizontal and vertical clearance requirements as dictated by CPUC and UPRR during final design. . PIES form signed July 9,2002 Technical Study Results Noise • Noise Analysis was approved on February 24,2003 Water Quality • For project areas exceeding 0.4 hectare(1 acre), NPDES guidelines necessitate the development of a SWPPP by the contractor prior to construction to establish project-specific permanent and temporary BMPs. During the design phase, a Water Pollution Control Plan would be prepared to determine the minimum control requirements to be included in the SWPPP. • BMPs include any facilities and methods used to remove, reduce, or prevent storm water runoff pollutants from entering receiving waters. Implementation of BMP goals may involve providing bioswales to reduce downstream pollutant concentrations,informing the public about runoff concerns to lessen impacts on receiving waters,and minimizing cuts and fills to curtail erosion, • Erosion control methods,temporary and permanent BMPs,and improvement of drainage facilities along the roadway would minimize impacts from storm water runoff. The SWPPP and NPDEScompliant measures would ensure no adverse impacts would occur to water quality associated with the Build Alternative(Locally Preferred). Floodplain • The Location Hydraulic Study and the Summary Floodplain Encroachment Report found that the project was assessed as a low level of risk to the floodplain and Caltrans approved of the study August 20,2009. Natural Environment Study • Appended Biological Opinion was signed on October 11, 2007 • Biological Assessment dated August 2006 • Avoidance, Minimization,and/or Mitigation Measures: • The Programmatic Biological Opinion(USFWS 2005)and appended PBO with conservation measures(October 11, 2007)shall be followed. Invasive Species • Minimization measures for effects on invasive species would be implemented to comply with regulations under the California Department of Fish and Game. • All construction equipment should be cleaned prior to movement to the construction site. • Only weed-free mulches and erosion control mixes should be included in specification. • Only appropriate native plants should be included in project landscaping. • No topsoil should be imported. • A weed eradication program should be implemented over the first year after construction. Conservation Measures(Appended PBO,October 11,2007) Caltrans and the City proposed the following measures as part of the proposed action to avoid and minimize adverse effects for listed species: 1. Conservation measures I through 20 of the PBO shall be implemented by the Caltrans/City for the appended Project with the possible exception of PBO#4. If loose sand is to be removed from the Page 2 d 10 55 CATEGORICAL EXEMPTION/CATEGORICAL EXCLUSION DETERMINATION FORM Continuation Sheet Project site and deposited on the Preserve in accordance with the existing agreement between CVWD and the City,then PBO conservation measure#14 would be null. 2. Approximately 14.2 acres(7.1 acres at a 2:1 ratio or 14.2 acres)of suitable habitats for the Coachella Valley milk-vetch and Coachella Valley fringe-toed lizards shall be preserved in an established conservation area near the action area as agreed to on Page 5 of the Appended BO for the Tiered Date Palm Drive Interchange Project(1-6-05-P-3282, EA 455900). Prior to construction,the Coachella Valley Association of Governments(CVAG),acting on behalf of Caltrans,has committed to the purchase and establishment of a conservation area,the finalization of a conservation agreement,and the establishment of an endowment fund for the management of the conservation area in perpetuity. The 26.34 acres(Table 1)of conservation habitat,required to offset the indirect impacts for this proposed Project,was previously purchased and accounted for as identified in the Appended BO for the Tiered Indian Avenue Interchange Project(1-6-05-P-3282). 3. The 14.2 acres(Table 1)of sandy habitat suitable for the fringe-toed lizard and milkvetch shall be purchased prior to the commencement of construction activities(including brush clearing and grading) associated with the Project. 4. Sand removed from the project footprint shall be deposited in accordance with an agreement between the City and CVWD. The Service shall approve the removal of sand and the deposition area prior to pickup,transportation and deposition of sand. If the quality of loose sand to be removed from the Project site and deposited on the Preserve is not suitable(consisting of racks,fine sediment,and gravel),then conservation measure#4 would be null and the sand would not be removed to the Preserve. 5. During construction,soils to be impacted shall be watered down to prevent fugitive dust from drifting into adjacent habitat. 6. All construction equipment shall be cleaned prior to initial movement to the construction site. 7. CaltranslCity shall ensure that the Contractor avoids entering or damaging habitat located outside of the project footprint.The Contractor's operations shall be limited to the immediate project footprint and other designated work areas shown on the plans,except as authorized in writing by the authorized biologist.The Contractor shall avoid killing or injuring any wildlife within the habitat and shall avoid killing or injuring any wildlife that crosses into the work area,except as required for the immediate safety of project personnel.The Contractor shall notify the authorized biologist of any wildlife killed or injured by construction activities or the contractor's employees in the course of work. Native plants located inside the habitat,that are not shown on the plans to be removed,and that are injured or damaged by reason of the Contractors operations,shall be replaced by the Contractor in accordance with Section 7 1.11 "Preservation of Property"of the Standard Specifications. 8. The Contractor shall retain,and have available,the services of an authorized biologist who will perform the duties of the biological monitor.The monitor is required to provide a pre-construction survey of the project site and any associated staging areas,provide employee training, monitor the temporary silt/wildlife fence installation, perform construction monitoring, and conduct endangered species relocation. USFWS Conservation Measures(PBO September 23,2004) 9. All areas outside of the project footprint will be delineated as Environmentally Sensitive Areas(ESAs). All parties in conjunction with this operation will strictly avoid these areas. No construction activities, materials,or equipment will be permitted in the ESAs.These areas must be placed on the design plans and included in the construction contract. ESAs will be designated by erecting protective fencing delineating the project impact boundary and sensitive habitats. This barrier fencing will be constructed in such a way as to restrict the movement of reptiles into impacted areas. Fencing material can vary;however,it should consist of a cloth-like material that can withstand high winds, sun and heat.This fence should be buried 24-inches below the surface,to prevent terrestrial species from burrowing underneath,and extend above ground at least 24-inches. Pagc 3 of 10 56 CATEGORICAL EXEMPTION/CATEGORICAL EXCLUSION DETERMINATION FORM Continuation Sheet 10. An employee education program will be developed.Each employee(including temporary,contractors, and subcontractors)will receive a traininglawareness program within two weeks of working on the proposed project.They will be advised of the potential impact to the listed species and the potential penalties for taking such species.At a minimum, the program will include the following topics: occurrence of the listed and sensitive species in the area,their general ecology,sensitivity of the species to human activities, legal protection afforded these species,penalties for violations of Federal and State laws, reporting requirements,and project features designed to reduce the impacts to these species and promote continued successful occupation of the project area environs. Included in this program will be color photos of the listed species,which will be shown to the employees. Following the education program,the photos will be posted in the contractor and resident engineers office,where they will remain throughout the duration of the project.The contractor, Resident Engineer,and Service- approved biological monitor will be responsible for ensuring that employees are aware of the listed species. 11. The project proponent will designate a Service-approved qualified biologist who will be responsible for overseeing compliance with protective measures for the listed species.The biologist will have the authority to halt all associated project activities that may be in violation of this biological opinion. In such an event,the biologist will contact the Service within 24 hours. 12. Construction work areas will be delineated and marked clearly in the field prior to habitat removal, and the marked boundaries maintained and clearly visible to personnel on foot and by heavy equipment operators. Employees will strictly limit their activities and vehicles to the proposed project areas, staging areas,and routes of travel.The project proponent and/or the biological monitor will contact the Service to verify that the limits of construction have been properly staked and are readily identifiable. 13. A biologist will monitor construction to ensure that vegetation removal,Best Management Practices (BMPs), ESA fencing,and all avoidance and minimization measures are properly constructed and followed. 14. All equipment maintenance,staging,and dispensing of fuel,oil,or any other such activities,will occur in designated upland areas.The designated upland areas will be located in such a manner as to prevent any runoff from entering waters of the United States,including wetlands. 15. Typical erosion control measures,BMPs,in the vicinity of streams will be employed in accordance with the conditions in the 401 Water Quality Certification requirements of the Regional Water Quality Control Board. 16, Use of invasive exotic plant species in landscaped areas adjacent to or near sensitive vegetation communities will be restricted. In compliance with Executive Order 13112,impacted areas will be revegetated with plant species native to desert habitat types and the Coachella Valley,and will avoid the use of species listed in Lists A& B of the California Exotic Pest Plant Council's list of Exotic Pest Plants of Greatest Ecological Concern in California as of October 1999. 17. The seed of Coachella Valley milk-vetch will be collected off of plants from within the boundaries of permanent and temporary impacts from project construction.Seed collection will occur when the seed is past soft dough and prior to being naturally dispersed.The top four inches of soil surrounding the milk-vetch plants to be impacted will be collected and placed in plastic bags.This seed and soil will be distributed at an area consisting of aeolian habitat immediately following collection.The location where seed will be dispersed will be coordinated with the Service prior to collection. 18. All construction equipment will be inspected and cleaned prior to use in the proposed project footprint to minimize the importation of non-native plant material.All mulch,topsoil and seed mixes used during post construction landscaping activities and erosion control BMPs will be free of invasive plant species propagules.A weed abatement program will be implemented should invasive plant species colonize the area within the project footprint post-construction. 19. No off-road vehicle activity from construction personnel or other persons affiliated with the project will occur outside of the project footprint. 20. To reduce attraction of ravens and crows,which may eat fringe-toed lizards,all trash will be placed in raven-proof containers and promptly removed from the site. Page 4,4 10 57 CATEGORICAL EXEMPTION/CATEGORICAL EXCLUSION DETERMINATION FORM Continuation Sheet 21, No pets or firearms will be permitted inside the project's construction boundaries or other associated work areas. 22. All sand removal and storage activities will be restricted to the project footprint. No maintenance activities will be authorized that extend beyond the boundaries of the project footprint. 23. To the extent possible,no sand removal activities will take place from 1 November—30 March(to avoid winter dormancy periods for the lizards)or if ambient air temperature exceeds 102 degrees Fahrenheit(the temperature at which lizard activity tends to be reduced). 24. Vehicle speeds on unpaved access roads will be restricted to a maximum of 25 MPH. 25. All culverts,bridges, and associated water passage structures will be maintained such that water and sediment may pass between upstream and downstream locations and so as not to block the passage of wildlife. 26. Impacts resulting from this project will be offset by implementing the agreements established in the Conservation Bank Plan Addressing the Direct, Indirect,and Cumulative Effects of Interstate 10 Coachella Valley Interchange Projects(Plan).The Plan assesses potential effects and offsetting measures for the proposed projects.The Plan establishes mitigation ratios at 2:1 for direct impacts of the interchange and associated arterial improvements covered under this Opinion and 1:1 for indirect impacts.Required offsetting measures will be provided through the acquisition of land and thefnal conservation bank agreement. Caltrans and/or Coachella Valley Association of Governments(CVAG) will set up an endowment fund for the purpose of managing the proposed conservation bank in perpetuity. 27. Prior to beginning construction, CVAG,Caltrans,and FHWA will purchase and establish a conservation bank(Bank),as per the Plan;finalize a conservation bank agreement with the Service and CDFG,and set up the endowment fund for managing the property in perpetuity.Sufficient land will be purchased for the bank prior to start of construction for any given project. CVAG, Caltrans,and FHWA will coordinate with the Service and CDFG to locate and acquire Bank lands.All Bank lands will be approved by the Service and CDFG prior to purchase to ensure that these conservation lands benefit the fringetoed lizard and milk-vetch. In addition,CVAG or its designee will be the manager of all Bank lands. 28. Geotechnical borings in areas with aeolian sand deposits will include the following measures: a. No cross country-travel and geotechnical borings will take place from 1 November-30 March(to avoid winter dormancy periods for the lizards)or if ambient air temperature exceeds 102 degrees Fahrenhei',(the temperature at which lizard activity tends to be reduced). b.When traveling cross-country,a route will be established and followed that avoids,to the maximum extent practicable,all sand hummocks and dunes. c. The surface area will be returned to the pre-disturbance state. If sand dunes or hummocks were impacted,then the surface sand will be placed in a separate pile and replaced as a dune or hummock. 29. Archaeological surveys in areas with aeolian sand deposits will include the following measures: a.The outer perimeter of all survey areas will be delineated and the area within this perimeter will be calculated and deducted from the Conservation Bank. b.All work including staging,depositing excavated materials, storing equipment,etc,will be conducted within the perimeter of the survey area. Air Air Quality Analysis was approved on January 16,2003. • On July 13,2009, FHWA found that the Conformity Determination for the Indian Canyon Drive and Bridge Widening Project conforms to the State Implementation Plan(SIP)in accordance with 40 C.F.R. Part 93. • Avoidance, Minimization,and/or Mitigation Measures: Upon development of the project construction details and schedule,the City shall reestimate NOX emissions: and Pacer 5 of 10 58 CATEGORICAL EXEMPTIONICATEGORICAL EXCLUSION DETERMINATION FORM Continuation Sheet • If emissions are forecast to exceed the SCAQMD NOX threshold, the contractor shall use aqueous diesel fuel or one or more pieces of construction equipment with exhaust gas recirculation-type engines as necessary to reduce forecast emissions to less than the threshold limit. • A Fugitive Dust(PM70)Mitigation Plan shall be prepared in compliance with Ordinance 1439 of the City of Palm Springs Municipal Code and shall be included as part of the construction contract specifications prior to the issuance of a grading permit. The Fugitive Dust Mitigation Plan shall specify steps that will be taken to comply with the City's Fugitive Dust and Erosion Control Ordinance,which restricts fugitive dust emissions. Measures outlined in the plan shall include but not be limited to daily watering of graded areas,washing of equipment tires before leaving the construction site,and use of SCAQMD-approved chemical stabilizers or soil binders. • The proposed project shall incorporate into the project specifications the applicable provisions of the Final Coachella Valley PM10 SIP and SCAQMD Rule 403 and 403.1,as shown in the air quality technical report. • The contractor shall discontinue construction activities during first-and second-stage smog alerts. • When feasible,the contractor shall utilize existing power sources(i.e.,temporary power poles)to minimize the use of diesel generators. • The proposed project shall incorporate into the project specifications the applicable provisions of the Final Coachella Valley PM10 SIP and SCAQMD Rule 403 and 403.1,as shown in the air quality technical report. Hazardous Waste—ISA • ISA approved on February 24,2003 • ISA re-approved September 2009 • ADL approved on February 24, 2003 • All hazardous waste testing should be done during W BS 165,prior to completion of PAED so that any special handling,treatment, or disposal provisions associated with hazardous wastes may be included in construction documents. Traffic • Traffic study was approved on June 5,2007. • Avoidance, Minimization,and/or Mitigation Measures: • Impacts to traffic flow as a result of construction activities could be reduced by developing and implementing a traffic management plan and a construction-phasing plan. Cultural Resources • State Historic Preservation Officer(SHPO)concurred with Caltrans'determination that there are no historic properties within the APE on June 11,2004. Climate Change • Avoidance,Minimization,and/or Mitigation Measures: • The project would incorporate the use of energy efficient lighting,such as LED traffic signals. LED bulbs—or balls,in the stoplight vernacular—cost$60 to$70 apiece but last five to six years, compared to the one-year average lifespan of the incandescent bulbs previously used. The LED balls themselves consume 10 percent of the electricity of traditional lights,which will also help reduce the projects CO2 emissions. • Portland cement will be used where possible and if feasible,fly ash will be added to Portland cement mixes. The use of lighter color surfaces such as Portland cement helps to reduce the albedo effect and cool the surface. Adding fly ash reduces the GHG emissions associated with cement production and it also can make the pavement stronger. „r to 59 CATEGORICAL EXEMPTIONICATEGORICAL EXCLUSION DETERMINATION FORM Continuation Sheet Indian Canyon Drive Street and Bridge Widening Mitigation Monitoring Program Checklist Timin of Verification Mitigation During Responsible Measure Avoidance,Minimization,and/or Method of Pre-con- Con- Post-con- Party omplete No. Mitigation Measure Verification stmction struction struction Initials Date Comments AIR QUALITY 1 The following measures would Place as X X X City of Palms Develop air quality mitigate air quality-related impacts: notes on the Springs, measures prior to project plans Construction construction and Grading activities for the bridge Contractor implement during construction and the road widening construction. shall occur sequentially,not Monitor during simultaneously. construction- Minimize land disturbance during construction. Use watering trucks to minimize dust:watering should be sufficient to confine dust plumes to the project work areas. Suspend grading and earth moving when wind gusts exceed 25 miles per hour unless the soil is wet enough to prevent dust plumes. Cover trucks when hauling dirt. Stabilize the surface of dirt piles if not removed immediately. Limit vehicular paths on unpaved surfaces and stabilize any temporary roads. Minimize unnecessary vehicular and machinery activities. Sweep paved streets at least once per day where there is evidence of dirt that has been carried onto the roadway. Revegetate disturbed land, including vehicular paths created during construction,to avoid future off-road vehicular activities. Remove unused material. Discontinue construction activities during first-and second-stage smog alerts. Incorporate into the project specifications the applicable provisions of the Final Coachella Valley PM,n SIP and South Coast Air Quality Management District Rule 403 and 403.1,as shown in the air quality technical report. A Fugitive Dust(PM,o)Mitigation Plan shall be prepared in compliance with Ordinance 1439 of the City of Palm Springs Municipal Code and shall be included as part Page 1 A 10 60 CATEGORICAL EXEMPTION/CATEGORICAL EXCLUSION DETERMINATION FORM Continuation Sheet Timin of Verification Mitigation During Responsible Measure Avoidance,Minimization,andlor Method of Pre-con- Con- Post-eon Party Complatec No. Mitigation Measure verification struction struction struction Initials Date Comments of the construction contract specifications prior to the issuance of a grading permit. 2 The following measure would Place as X X X National Inform minimize exposure to diesel notes on the City, construction particulate emissions: project plans Construction contractor prior to Contractor grading and monitor during When feasible,replace at least one construction. piece of diesel-operated equipment with a gas-operated piece equipment. When feasible,utilize existing power sources(i.e.,temporary power poles)to minimize the use of diesel generators. Locate construction equipment and truck staging and maintenance areas as far as feasible and nominally downwind of schools, active recreation areas,and other areas of high population density. HYDROLOGY,WATER QUALITY, AND STORM WATER RUNOFF 3 The following measures shall be Completed X X City Prepare plan prior implemented to minimize storm plan Engineer, to construction. water and hydrology-related City of Palms Implement during impacts: Springs, construction. Construction A Storm Water Pollution Contractor Prevention Plan(SWPPP)shall be prepared to address erosion control and sedimentation issues related to the grading aspect of the project. The SWPPP shall specify and describe the implementation process of all best management practices that will address equipment operation and materials management,prevention of erosion,and prevention of sedimentation. The City Engineer of the City of Palms Springs shall ensure that the SWPPP is properly implemented. WILDLIFE The following measure shall be Approval by X X City of Palms Prepare plan prior 4 implemented to reduce wildlife the resource Springs, to construction. impacts: agencies Construction Implement during Contractor construction. Implementation of the required mitigation measures outlined in the Conservation Plan Addressing the Direct, Indirect,and Cumulative Effects of Interstate 10 Coachella Valley Interchange Projects (Caltrans 2003)regarding impacts to wildlife habitat. These measures include the purchase and conservation of comparable habitat in an established Conservation Bank under the auspices of the Draft Coachella Valley Multi-Species Habitat Page s of 10 61 CATEGORICAL EXEMPTION/CATEGORICAL EXCLUSION DETERMINATION FORM Continuation Sheet Timing of Verification Mitigation During Responsible Measure Avoidance,Minimization,and/or Method of Precon- Con- Post-con- Party omplete No- Mitigation Measure verification struction struction struction Initials Date Comments Conservation Plan CVMSHCP . THREATENED AND ENDANGERED SPECIES 5 The following measures shall be Approval by X X City of Palms Prepare plan prior implemented to reduce threatened the resource Springs, to construction. and endangered species impacts: agencies Construction Implement during Contractor construction. Implementation of the required mitigation measures outlined in the Conservation Plan(Caltrans 2003) regarding threatened and endangered species. Required mitigation shall be met through the replacement of desert sand fields habitat,on a 2:1 basis in the case of direct impacts,and a 1:1 basis in the case of indirect impacts,in an established Conservation Bank under the auspices of the CVMSHCP. All areas outside of the project footprint will be delineated as Environmentally Sensitive Areas with protective fencing. An education program will be developed to advise construction staff of potential impacts to listed species. Biological monitoring will be provided to oversee compliance with protective measures for listed species. Seed of the Coachella Valley milk-vetch will be collected from plants that are within the Area of Effect prior to construction. All equipment will be inspected and cleaned prior to use in the project area to minimize exotic species introductions. I To the extent feasible,no sand removal activities will lake place from November 1 -March 30 to avoid winter dormancy periods for lizards or if ambient air temperatures exceed 102 degrees Fahrenheit(the temperature at which lizard activity tends to be reduced. CLIMATE CHANGE To the extent that equipment and Place as X X City of Palms Before and during 6 technology is available and cost notes on the Springs, construction- effective,the applicant shall project plans Construction Note shall be encourage contractors to use Contractor written on all alternate fuels.catalyst and construction filtration technologies,and retrofit documents for existing engines in construction implementation equipment. during PagQ 9 et 10 6 ?_ CATEGORICAL EXEMPTION/CATEGORICAL EXCLUSION DETERMINATION FORM Continuation Sheet Timing of Verification Mitigation During Responsible Measure Avoidance,Minimization,and/or Method of Pre-con- Con- Post-con- Party Completec No. Mitigation Measure Verification struction struction struction Initials Dale Comments Minimize idling time to 5 minutes construction, when construction equipment is not in use,unless per engine manufacturer's specifications or for safety reasons more time is required. To the extent practicable,manage operation of heavy-duty equipment to reduce emissions such as maintain heavy-duty earthmoving, stationary and mobile equipment in optimum running conditions which can result in 5%fewer emissions. Property maintain equipment according to manufacturers' specifications. Use electric equipment when feasible. The project would incorporate the use of energy efficient lighting, such as LED traffic signals. LED bulbs—or balls,in the stoplight vernacular—cost W to$70 apiece but last five to six years, compared to the one-year average lifespan of the incandescent bulbs previously used. The LED balls themselves consume 10 percent of the electricity of traditional lights, which will also help reduce the projects CO2 emissions. Portland cement Will be used where passible and if feasible,0y ash will be added to Portland cement mixes.The use of lighter color surfaces such as Portland cement helps to reduce the albedo effect and cool the surface. Adding 0y ash reduces the GHG emissions associated with cement production and it also can make the pavement stranger. Page 10 of IO c fJ