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HomeMy WebLinkAbout6/16/2010 - STAFF REPORTS - 2.J. � �ppLM Sp4 .y w � U N ryC aogen'1 n4 City Council Staff Report Date: June 16, 2010 CONSENT CALENDAR Subject: APPROVAL OF RIGHT-OF-WAY AGREEMENTS WITH WESSMAN HOLDINGS, LLC, FOR THE BELARDO ROAD BRIDGE & ROADWAY WIDENING, CITY PROJECT NO. 87-49 From: David H. Ready, City Manager Initiated by: Public Works and Engineering Department SUMMARY Approval of this item will facilitate acquisition of permanent right-of-way and a temporary construction easement from Wessman Holdings, LLC, for a portion of Belardo Road. RECOMMENDATION: 1) Approve a Right-of-Way Agreement for Acquisition of Real Property and Escrow Instructions, Agreement No. with Wessman Holdings, LLC, a California limited liability company, in the amount of $50,000 for acquisition of right-of-way for the Belardo Road Bridge and Roadway Widening, City Project No. 87-49; and 2) Approve a Right of Entry and Temporary Construction Easement Agreement, Agreement No. with Wessman Holdings, LLC, a California limited liability company, in the amount of $20,925 for acquisition of a temporary construction easement for the Belardo Road Bridge and Roadway Widening, City Project No. 87-49; and 3) Authorize the City Manager to execute all necessary documents; and 4) Authorize the Director of Public Works/City Engineer to coordinate and execute all associated escrow documents subject to the review and approval by the City Attorney. STAFF ANALYSIS: On June 19, 2002, the City Council approved a Memorandum of Understanding ("MOU") with the Agua Caliente Band of Cahuilla Indians ("Tribe") related to Belardo Road Bridge and Roadway Project, City Project 87-49 ("Project"). The MOU outlined ITEM NO._t - City Council Staff Report June 16, 2010- Page 2 Right of Way Agreements for Belardo Road the City's and Tribe's responsibilities with regard to the Project, which has been developed and coordinated as a joint project. Subsequently, on July 15, 2009, a second MOU was approved between the City and Tribe which reasserted the City's and Tribe's responsibilities with regard to the Project, but also memorialized the Tribe's contribution of $2,251,269 from its Fiscal Year 2009 Indian Reservation Roads allocation to the Project. A copy of each MOU is included with this report. Generally, the City's responsibilities for the Project are: 1. Engineering Design 2. Advertising and Bidding 3, Construction Engineering (Inspection/Administration) Generally, the Tribe's responsibilities for the Project are: 1. Environmental Services 2. Right-of-Way Services City and Tribal staff have been working for many years to deliver this project. Most recently, the environmental phase was completed and the Council adopted the Mitigated Negative Declaration on May 27, 2009. The Tribe is now pursuing acquisition of rights-of-way for the Project on behalf of the City, and the City is now completing the final design. The Tribe retained a Right-of-Way Agent, Epic Land Solutions, who has coordinated right-of-way acquisition for the Project. Right-of-way acquisition has been completed for a parcel of right-of-way on Belardo Road, including a temporary construction easement for access onto the adjacent property during construction. Separate agreements have been prepared through the City Attorney's office for acquisition of the right-of-way and a temporary construction easement. The acquisition will be processed through escrow, and it is recommended that the City Council authorized the Director of Public Works/City Engineer to coordinate escrow documents through the City Attorney's office to facilitate the acquisition. It is recommended that the City Council approve the agreements which will allow the acquisition to be completed. FISCAL IMPACT: Pursuant to the MOUs referenced in this report, the Tribe will be responsible for paying costs associated with the acquisition of right-of-way. n City Council Staff Report June 16, 2010 - Page 3 Right of Way Agreements for Belardo Road SUBMITTED: Prepared by: Recommended by: Marcus L. Fuller David J. Barakian Assistant Director of Public Works Director of Public Works/City Engineer Approved by. Thomas J. Wils n, Asst. City Manager David H. Ready, Ci er Attachments: 1. City / Tribal MOU, June 19, 2002 2. City / Tribal MOU, July 15, 2009 3. Right-of-Way Agreement for Acquisition of Real Property and Escrow Instructions 4. Right of Entry and Temporary Construction Easement Agreement n J Agua Caliente Belardo Bridge 14OU AGREEMENT #4523 MEMORANDUM OF UNDERSTANDING M07109, 6-19-02 FOR BELARDO ROAD BRIDGE AND RELATE[,___ ROADWAYS BETWEEN AGUA CALIENTE BAND OF CAHUIA INDIANS AND THE CITY OF PALM SPRINGS This Memorandum of Understanding (MOU) is entered into this 8vday of $r� •L:�, 2002 by and between the AGUA CALIENTE BAND OF CAHUILLLA INDIANS acting through its Tribal Council (Tribe), a Federally-Recognized Tribe and the CITY OF PALM SPRINGS, CALIFORNIA, acting through its City Council (City), a Municipal Corporation. RECITALS 1. The Aqua Caliente Band of Cahuilla Indians (Tribe) is a Federally-Recognized Indian Tribe governing itself according to a Constitution and exercising sovereign authority over the lands of the Agua Caliente Indian Reservation (Reservation). 2. The City of Palm Springs, California (City), is a charter city, possessing full powers with respect to municipal affairs to regulate the territory under its jurisdiction and in accordance with the California Constitution, its Charter and State Law. 3. On May 18, 2001 the City and Tribe submitted a joint application to the Federal Highway Administration (FHWA) for Federal Public Lands Highway-Discretionary funds to construct the Belardo Bridge and related roadway improvements, A complete list of improvement work is contained in said application. 4. On or about December 15, 2001 President Bush signed the Transportation Bill which contained$3million for the Belardo Bridge and related roadwaywork project (Project). 5. On February 8, 2002, City submitted "Request for Authorization to Proceed with Preliminary Engineering" package to the State of California, Department of Transportation (Caltrans). NOW THEREFORE, the parties hereto enter into this Memorandum of Understanding (MOU) as follows: Section 'I - Goal The City and Tribe enter into this MOU to identify responsibilities and implement a process for the preliminary engineering, environmental, right-of-way and construction services for the Project. Section 2 - Process and Responsibility Outline City and Tribe understand that no work of any kind for Project may begin until written authorization is received from Caltrans, All work, including procurement of consultants, right-of-way procedures, design and construction procedures'are to be in accordance with Federal rules and procedures as outlined in Caltrans Local Assistance Procedures Manual including adherence to Disadvantaged Business Enterprise policy as adopted by the City 4 Responsibility of Tribe: Preparation of RFP and contracting for all environmental services, required on the approved Preliminary Environmental Study Form. Preparation of RFP and contracting for all Right-of-Way Services Including asserting its best effort and assisting the City to obtain all necessary rights-of-way. Assisting City should condemnation process be required due to Tribe being unable to obtain all necessary rights-of-way. The right-of-way for the roadway from the east side of the Interpretive Center parking lot to Belardo Road shall not be dedicated to the City. Completion of documents required for work noted above and submittal to City. Responsibility of City: Lead agency for coordination with Caltrans, including submittal of required documents and forms. Preparation of RFP and contracting for engineering design services and construction engineering and inspection services. Advertising and bidding project for construction. Accepting rights-of-way offered by Tribe and other land owners. Submittal of all completion documentation to Caltrans at project completion. Undertaking acquisition of right-of-way by condemnation should Tribe be unable to acquire the right-of-way, but such condemnation will not be at City's expense. Both parties Understand and agree that payment for above services and staff time is by the party responsible for the specific service (but City is not responsible for the expense of condemnation). City shall submit reimbursement requests to Caltrans for payments it has expended and, upon receipt of documentation from Tribe, for payments Tribe has expended. City shall reimburse Tribe within 15 days of receipt of the corresponding reimbursement from Caltrans, Both parties further agree that committees for selection of consultants will include representatives of City, Tribe and Caltrans and that final plans, specifications and environmental document shall be executed by staffs from both City and Tribe. Representatives from each party will also serve on the Project Development Team when said team is formed subsequent to City contracting for engineering design services. Section 3 - General Terms and Conditions 1. Goveming Law: Unless inconsistent with Federal Law,which shall he supreme,the laws of the State of California shall govern the interpretation and enforcement of this MOU. 2. Modifications: Inthe eventthe total dollars allocated are reduced from the$3million contained in the approved Transportation Bill, both parties must agree, by written instrument,to any proposed alteration,change or modification to this MOU. Absent any alteration, change or modifications, each party's unreimbursed monetary responsibility is limited to the "local contributions" as outlined in the Joint Application to FHWA. It is each party's responsibility to determine the reimbursement eligibility before expending funds for any task or service. 3. Approval: This MOU shall be approved by ResDlUtions of the Tribal Council and the City Council. 4, Termination: Either party may terminate this MOU, upon 30 days written notice to the other party, assuming responsibility for all costs incurred by said party until the date of termination. Termination of this MOU, unless replaced by a subsequent MOU or Agreement, shall halt the project unless one party agrees to assume all responsibility for said Project. 5 i IN WITNESS WHEREOF the City and Tribe have executed this MOU as of the date first written above. Approved as to Form 1� Trib I Attorney Approved as to Form 0V'r<liL (r116 oa City ttor ey .. fit "TRIBE" c�:y Agua Caliente Band of Cahuilla Indians ally-Recognized Tribe Tribal Council Chairman "CITY" City of Palm Springs, California A Municipal Corporation ATTEST Mayor City Clerk INTERGOVERNMENTAL MEMORANDUM OF UNDERSTANDING By and Between THE AGUA CALIENTE BAND OF CAHUILLA INDIANS and THE CITY OF PALM SPRINGS Regarding PROJECT CONTRIBUTIONS FOR THE BELARDO BRIDGE AND ROADWAY PROJECT THIS INTERGOVERNMENTAL MEMORANDUM OF UNDERSTANDING ("MOU") is entered into this I57g-day of 7 u'—� 2009, by and between the AGUA CALIENTE BAND OF CAHUILLA INDIANS, a federally recognized Indian tribe, (the Tribe") and the CITY OF PALM SPRINGS, a municipal corporation (the "City"). I. RECITALS WHEREAS, the Ague Calleme Band of Cahuilla Indians is a Federally- recognized Indian Tribe governing itself according to a Constitution and By-Laws and exercising sovereign authority over the lands of the Agua Caliente Indian Reservation (Reservation), acting through its duly elected Tribal Council, subject to Federal law; and WHEREAS, the City, acting through its City Council (the "City Council'), is a political subdivision of the State of California, established pursuant to the Constitution of the State of California; and WHEREAS, the Tribe and the City desire to work together in good faith to complete the construction of the Belardo Bridge and Roadway Project (Project), a Capital Improvement Project for the City; and WHEREAS, the Tribe and the City have an existing MOU regarding the Project dated June 19, 2002: and WHEREAS, the transportation route designated for widening and improvements is listed in the Tribe's FY 2008 Indian Reservation Roads (IRR) Inventory and is eligible for IRR funding; and WHEREAS, the IRR Program Is jointly administered by the Bureau of Indian Affairs (BIA), and the Federal Highway Administration's (FHWA) Federal Land's Highway (FLH) Office; and WHEREAS, the Tribe will make a contribution of $2,251,269 from its Fiscal Year (FY) 2009 IRR Allocation towards the survey, right-of-way acquisition, and construction of the Project; and WHEREAS, the BIA and FHWA will review and approve the PS&E for the Project or a State licensed professional engineer will certify that the Project PS&E comply with health and safety requirements. ROAD: 1. The Project will consist of widening and improvements to Belardo Road, approximately 250 meters west of South Palm Canyon Drive to a point approximately 200 meters north of Sunny Dunes Road. 2. Improvements include the construction of a two-lane bridge to carry Belardo Road over Tahquitz Creek and construction of new roadways to connect noncontiguous sections of Belardo Road. CITY'S RESPONSIBILITIES' 1. The City will be responsible for contracting engineering design services and construction engineering and inspection services. 2. The City will conduct advertising and bidding for Project construction. 3. The City will accept right-of-way offered by Tribe and other land owners. 8 4. The City will coordinate the Project with the Tribe, and will submit completed documents as necessary for the work noted above. TRIBE'S RESPONSIBILITIES: 1. The Tribe will be responsible for contracting all environmental services required by the California Environmental Quality Act (CEQA) and the National Environmental Pelicy Act(NEPA). 2. The Tribe will be responsible for contracting all right-of-way services including asserting its best effort and assisting the City to obtain all necessary rights-of-way. 3. The Tribe will coordinate the Project with the City, and will submit completed documents as necessary for the work noted above. 4. The Tribe will make payments, subject to the availability of funds from the BIA, to the City from its FY 2009 IRR Tribal Allocation, up to $2,251,269, for use toward the survey, right-of-way acquisition, and construction of the Project, based on work performed and progress estimate submitted in the BIA's format and after approval of the payment by the BIA. GENERAL TERMS AND CONDITIONS: 1. Recitals. All of the above recitals are true and correct and the Tribe and City so find and determine. 2. Modifications. This MOU may only be modified in writing, signed and duly approved by both the Tribal Council and the City Council- 3- Approval. The City shall approved this MOU by passage of a duly adopted resolution of the Palm Springs City Council and the Tribe shall approve this MOU by passage of a duly adopted resolution of the Tribal Council. Both resolutions shall be subject to the prior review and approval "as to form" by both the Tribe's legal counsel and the City's legal counsel prior to approval "as to content" by the respective Councils. 4. Authority. The individuals signing this MOU warrant and represent that pursuant to their respective constitutions and/or bylaws they have the full power and authority to enter into this MOU and fully perform in accordance with the terms hereof. and the Tribe and the City acknowledge that their respective legal counsels have advised that this MOU Is not subject to approval of the authorized representative of the Secretary of the Interior under 25 U.S.C. §81. 5. Effective Date. This MOU shall take effect upon its execution. 10 IN WITNESS WHEREOF, the parties hereto have executed this MOU as of the date first written above. AGUA CALIENTE BAND OF CAHUILLA INDIANS Approved pi t orm ribal Attorney Appro d For C' Atto n ,.TRIBE" A aliente Band of Cahuilla Indians Ily Rec gnized b._ ichard M. Milanovich Tribal Council, Chairman °CITY" City of Palm Springs, California A Municipal Corporation A EST City Manager ity Clerk APPROVED BY CITY COUNCIL r Project: Belardo Road Bridge & Roadway Project Project No.: PLHL02-5282(038); City Project 87-49 APN: 513-300-057 RIGHT-OF-WAY AGREEMENT FOR ACQUISITION OF REAL PROPERTY AND ESCROW INSTRUCTIONS THIS RIGHT-OF-WAY AGREEMENT FOR ACQUISITION OF REAL PROPERTY AND ESCROW INSTRUCTIONS (the "Agreement") is made and entered into as of , 2010, by and between the CITY OF PALM SPRINGS, a California charter city and municipal corporation ("Buyer") and WESSMAN HOLDINGS, LLC, a California limited liability company ("Seller"), with reference to the following facts: RECITALS A. Seller is the owner of certain real property comprised of approximately twenty-five thousand and fifty-nine (25,059) 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. 513-300-057, more particularly described on Exhibit A and shown on Exhibit B attached hereto (the "Property"). B. Seller desires to convey to Buyer and Buyer desires to acquire from Seller the Property, 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 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, the Property. As used herein the "Property" shall include the real property described on Exhibit A and shown on Exhibit B, and all of Seller's right, title and interest in and to any and all entitlements, tenements, hereditaments, easements, easement rights, rights to half-widths of all adjacent public streets and public rights of way, mineral rights, oil and gas rights, water, water rights, air rights, development rights and privileges appurtenant thereto and all improvements located thereon. 1.2. Purchase Price. The purchase price ("Purchase Price") for the Property shall be Fifty Thousand Dollars ($50,000) payable as cash at closing. 1 ROW: Belardo Road Bridge and Roadway Project 12 h 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 First American Title Insurance Company, 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 instructions shall incor orate this Agreement as art thereof and writing. The escrowp g p 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 Seller's and Buyer's usual fees, charges and costs incidental to the conveyance of the Property which arise in this Escrow. 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 September 30, 2010, (the "Closing Date"). As used in this Agreement, the "Close of Escrow" shall mean the date a Grant of Easement Deed, as provided in Section 2.4.2(a) hereof ("Grant of Easement Deed"), is recorded in the Official Records of the County. 2.3.1 Conditions of Buyer's Obligations. The Close of Escrow and Buyer's obligation to purchase the Property 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 determined in accordance with Section 1.2, (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 would make any of Seller's representations, warranties and covenants set forth herein untrue as of the Close of Escrow; (d) There shall have occurred no material adverse change in the physical condition of the Property (such as those caused by natural disasters) which would render the Property unsuitable for Buyer's intended use or which would materially increase the cost or cause a material delay in the schedule for the development of the Property, 2 ROW, Belardo Road Bridge and Roadway Project �S (e) The Title Company shall be committed to issue to Buyer, as of the Closing Date, the Title Policy (defined below) covering the Property, subject only to the Permitted Exceptions. 2.3.2 Conditions to Seller's Obligations. The Close of Escrow and Seller's obligation to sell and convey the Property 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 determined in accordance with Section 1.2, (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. 2.3.3 Waiver of a Condition Does Not Excuse Performance. If any condition precedent to the Close of Escrow is expressly waived, in writing, as a condition to the Close of Escrow by the party for whose benefit such condition exists, then, to the extent such condition is capable of being satisfied following the Close of Escrow, such condition shall become a condition subsequent to the Close of Escrow and shall be satisfied by the party whose performance is required to satisfy such condition as soon as reasonably possible following the Close of Escrow. 2.4. Closing Documents. The parties shall deposit the following with Escrow Holder prior to the Close of Escrow: 2.4.1 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 Deed executed by the City Clerk of the City of Palm Springs. 2.42 Seller's Deposits. Seller shall deposit: (a) The Grant of Easement Deed in the form of Exhibit C attached hereto, appropriately executed to convey the Property 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 3 ROW: Belardo Road Bridge and Roadway Project 14 (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 sale of the Property in accordance with the terms of this Agreement. 2.5. Closnq. 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 Seller 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 of the Property 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 Property as is required by California law, and Escrow Holder shall report and transmit the withheld amount in the manner required by California law. By agreeing to act as Escrow Holder hereunder, Escrow Holder expressly agrees to undertake and be responsible for all withholding obligations imposed pursuant to Section 1445 of the Internal Revenue Code of 1986, as amended, and the regulations thereunder and under any similar provisions of California law, and shall defend, indemnify and hold Buyer harmless in connection with such obligations. 2.5.2 Necessary Actions of Escrow Holder. On the Close of Escrow, Escrow Holder shall: (i) record the Grant of Easement Deed in the Office of the County Recorder of the County, (ii) pay any transfer taxes, (iii) instruct the County Recorder to return the Grant of Easement Deed to Buyer, (iv) distribute to Seller the Purchase Price, and (v) deliver to Buyer the Title Policy covering the Property 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 Seller to provide any necessary information to the Assessor's office in connection with such request for refund- 4 ROW: Belardo Road Bridge and Roadway Project i 2.5.4 Title and Possession. Upon the Close of Escrow, title to and exclusive possession of the Property shall be conveyed to Buyer, subject only to the Permitted Exceptions. 2.6. Failure to Close; Termination. 2.15.1 Neither Party in Default. In the event that any condition set forth in Section 2.3 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, First American Title Insurance Company (the "Title Company") will furnish Buyer with an updated Title Commitment on the Property together with legible copies of all documents referenced therein as exceptions to title and a plot plan for the Property 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 matters disclosed in the Title Commitment. All matters not timely approved by Buyer will be deemed disapproved. All such exceptions 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 Property 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 Property vested in Buyer with liability equal to the Purchase Price, 5 ROW: Belardo Road Bridge and Roadway Project 16 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 possession and use of the Property 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 possession and use. 3.4. Seller's Covenant Not to Further Encumber the Property. 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 Property, 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 Property 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. 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 Property, 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 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 foregoing representations or warranties untrue. 6 ROW: Belardo Road Bridge and Roadway Project 17 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 foregoing representations and warranties contained in this Section 4.2. 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. 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 property is included 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 Property and any rights which exist or may arise out of the acquisition of the Property 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 Property 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. 7 ROW. Belardo Road Bridge and Roadway Project p i i S. 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 Property 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 agrees to execute and deliver such other instruments and perform such acts, in addition to the matters herein specified, as may be appropriate or necessary to effectuate the agreements of the parties, whether the same occurs before or after the Close of Escrow. 7.3. Entire Agreement. This Agreement, together with all exhibits hereto and documents referred to herein, if any, constitute the entire agreement among the parties hereto with respect to the subject matter hereof, and supersede all prior understandings or agreements. This Agreement may be modified only by a writing signed by both parties. All exhibits to which reference is made in this Agreement are deemed incorporated in this Agreement whether or not actually attached. 7.4. Headings. Headings used in this Agreement are for convenience of reference only and are not intended to govern, limit, or aide in the construction of any term or provision hereof. 7.5. Choice of Law. This Agreement and each and every related document are to be governed by, and construed in accordance with, the laws of the State of California. 7.6. Severability. If any term, covenant, condition or provision of this Agreement, or the application thereof to any person or circumstance, shall to any extent be held by a court of competent jurisdiction or rendered by the adoption of a statute by the State of California or the United States invalid, void or unenforceable, the remainder of the terms, covenants, conditions or provisions of this Agreement, or the application thereof to any person or circumstance, shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby; provided that the invalidity or unenforceability of such provision does not materially adversely affect the benefits accruing to, or the obligations imposed upon, any party hereunder, and the parties agree to substitute for the invalid or unenforceable provision a valid and enforceable 8 ROW: Belardo Road Bridge and Roadway Project 19 provision that most closely approximates the intent and economic effect of the invalid or unenforceable provision. 7.7. Waiver of Covenants, Conditions or Remedies. The waiver by one party of the performance of any covenant, condition or promise, or of the time for performing any act, under this Agreement shall not invalidate this Agreement nor shall it be considered a waiver by such party of any other covenant, condition or promise, or of the time for performing any other act required, under this Agreement. The exercise of any remedy provided in this Agreement shall not be a waiver of any other remedy provided by law, and the provisions of this Agreement for any remedy shall not exclude any other remedies unless they are expressly excluded. 7.8. Legal Advice. 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. 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: 9 ROW. Belardo Road Bridge and Roadway Project 2� 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 c/o Woodruff, Spradlin & Smart 555 Anton Boulevard, Suite 1200 Costa Mesa, CA 92626 Facsimile No.: (714) 835-7787 Telephone No.: (714) 558-7000 If to Seller, to: Michael Braun Wessman Holdings, LLC 555 South Sunrise Way, Suite 200 Palm Springs, CA 92264 Facsimile No.: (760) 325-5848 Telephone No.: (760) 325-3050 If to Escrow Holder, to: Janette DeLap First American Title Insurance Company 3281 East Guasti Road, Suite 490 Ontario, CA 91761 Facsimile No.: (909) 363-7356 Telephone No.: (909) 510-6206 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 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 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. 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. Delivery of a copy of a notice as set forth above is as an accommodation only and is not required to effectuate notice hereunder. 7.13. Survivability. All covenants of Buyer or Seller which are intended hereunder to be performed in whole or in part after Close of Escrow and all representations, warranties, and indemnities by either Party to the other, shall survive Close of Escrow and delivery of the Grant of Easement Deed, and be binding upon and inure to the benefit of the respective Parties. 10 NOW Belardo Road Bridge and Roadway Project 21 7.14. Release. The total compensation to be paid by Buyer for the Property is the Purchase Price, which consideration covers 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 Property. Buyer shall have no obligation to Seller under the California Relocation Assistance and Real Property Acquisition statutes and guidelines. Except for any breach of terms or conditions contained in this Agreement, Seller waives and forever releases Buyer, including its successors, officers, employees, attorneys, agents, representatives and anyone else acting on Buyer's behalf, of and from any and all claims, demands, actions or causes of action, obligations, liabilities, or claims for further compensation, known or unknown, based upon or relating to the facts or allegations and circumstances arising from Buyer's acquisition of the Property. 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." Seller's Initials 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. [SIGNATURE PAGE FOLLOWS] 11 ROW. Belardo Road Bridge and Roadway Project 22 IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written. BUYER SELLER CITY OF PALM SPRINGS, a California WESSMAN HOLDINGS, LLC, a California charter city and municipal corporation, limited liability company By JOHN WESSMAN, its Managing Member David H. Ready City Manager Attest, John Wessman James Thompson City Clerk Approved as to form by: WOODRUFF, SPRADLIN & SMART Douglas C. Holland, Esq. City Attorney Exhibit List Exhibit A -- Legal Description of the Property Exhibit B Depiction of the Property Exhibit C Form of Grant of Easement Deed Exhibit D Affidavit of Non-foreign Taxpayer Status 12 ROW: Belardo Road Bridge and Roadway Project 2 33 ACCEPTANCE BY ESCROW HOLDER: First American Title Insurance Company 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: FIRST AMERICAN TITLE INSURANCE COMPANY By: Name: Its: 24 EXHIBIT A. APN 513-300-057 RIGHT-OF-WAY Being a portion of the West Half of the Southeast Quarter of the Southeast Quarter of Section 22, Township 4 South, Range 4 East, San Bernardino Mendian, according to the official plat thereof, lying with Riverside County, California, being more particularly described as follows; Beginning at the northeast comer of said West Half; Thence South 00038'10" West, along the east line of said West Half, a distance of 876,32 feet to the beginning of a non-tangent curve, concave easterly„ having a radius of 276,40 feet, an initial radial lines bearing North 63047'32" East; Thence northerly along said curve through a central angel of 26050'380, an arc distance of 130.43 feet to a tine parallel with and 30.00 feet westerly of the east line of said West Half; Thence North 00038'10" East, along said parallel line, a distance of 760.46 feet to the north line of said West Half; Thence South 89038'53" East, along said north tine, a distance of 30,00 feet to the Point of Beginning. The above-described parcel of land contains 25,059 square feet or 0.58 acres, more or less. All as shown on the map attached herewith as Exhibit B, and by reference to, made a part hereof. SAND Stw Fy � o DARRJ a P.ainrw No,70TS [7xp. 12MOO �c aF N, P OP GA11� Darrin P. Ginn„ PL$ 7075 Date EXP. 12131/10 Prepared for and on behalf of SC Engineering 25 EXHIBIT B EA�ESDUI7E MORONGO RD �1DRDNCD RD AR APN a 513^3L}P^^n45 SITE Wn. 584;38'S3 E' BEGINNING C PALM NORTH LINE W!/2, f NE C0R Wlfl CANYON n SE 1/4, SE 1/4, SEC 22, SE 1/4, SE 1/4, T4S. ROE: SaW SEC 22 M; R4E Ca APN APN 513-300-0.38 S 513-300-057 AREA ±0.58 ACRES ' N n APN 513-300-056 r ''' r I� EAST LINE W1/2„ D = 26 5D 38' SE 1/4, SE 114, SEC 22, R 278.40' MS. R4k Sdt1. LaMp L = 73D.43' _ N634 342°L DARRIN P. GINN Nn 1075 ENP, 1a/a+era SELARDO RD s APN Fo 573-300-014 APN DARRIN P. GINN, LS 7075 � DATE 513—J00--009 EXP 12131/10 PREPARED FOR AND ON BEHALF OF SC ENGINEERING DARRIN P. GINN, PE, PLS RIGHT—OF—WAY 18506 COCOUI ROAD OWNER: WESSMIAN HOLDINGS, LLC A-P.N.: 513-300--057 APPLE VALLEY, CA 92307 PH: 760-553-6223 DATE: 2/11/2009 DRAWN BY. DPG SHT 1 pF 1 26 EXHIBIT C RECORDING REQUESTED BY First American Title Insurance Company WHEN RECORDED RETURN TO: City Clerk CITY OF PALM SPRINGS 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 SPACE ABOVE THIS LINE FOR RECORDER'S USE Exempt from recording fees under Government Code§6103 EASEMENT DEED APN: 513-300.057 This transfer is exempt from Documentary Transfer Tax pursuant to Revenue&Taxation Code§ 11922. THE UNDERSIGNED SELLER DECLARES: FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, WESSMAN HOLDINGS, LLC,A CALIFORNIA LIMITED LIABILITY COMPANY, hereby GRANTS to: CITY OF PALM SPRINGS, a California charter city and municipal corporation, an easement for public road and drainage purposes, including public utility and public services purposes, over, upon, across, and within the real property in the County of Riverside, State of California, more particularly described on Exhibit A and shown on Exhibit B attached hereto and incorporated herein by this reference. TOGETHER with: 1. All tenements, hereditaments and appurtenances, including easements and water rights, if any, thereto belonging or appertaining, and any reversions, remainders, rents, issues or profits thereof; and 2. All rights, title, and interests of Seller in and under all covenants, conditions, restrictions, reservations, easements, and other matters of record, including, without limitation, all rights as "Declarant" under any Declarations of Covenants, Conditions and Restrictions ("Declarations") of record. 2i SAID GRANT BEING FURTHER SUBJECT TO: 1. General and special real property taxes for the current fiscal year and all later years. 2. All assessments imposed by a duly empowered governmental entity, whether or not of record. 3. Any and all declarations, covenants, conditions, restrictions, easements, reservations (including, but not limited to, reservations and exceptions to the mineral estate), rights, and rights of way of record. WESSMAN HOLDINGS, LLC, a California limited liability company Date: By JOHN WESSMAN, its Managing Member John Wessman 28 ACKNOWLEDGEMENT 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 29 EXHIBIT D DO NOT RECORD. TRANSFEREE (BUYER) DO NOT SEND MUST RETAIN FOR TO IRS. SIX YEARS AFTER THE TRANSACTION. CERTIFICATION OF NON-FOREIGN STATUS BY TRANSFEROR 1. Section 1445 of the Internal Revenue Code provides that a transferee (Buyer) of a U. S. real property interest must withhold tax if the transferor (Seller) is a foreign person. 2. In order to inform each transferee that withholding of tax is not required upon disposition of a U. S. real property interest by (hereinafter referred to as "the Transferor"), the undersigned hereby certifies, and declares by means of this certification, the following on behalf of the Transferor: A. The one item marked below is true and correct: (1) The Transferor is not a foreign individual, foreign corporation, foreign partnership, foreign trust, or foreign estate (as these terms are defined in the Internal Revenue Code and Income Tax Regulations). (11) The Transferor is a corporation incorporated under the laws of a foreign jurisdiction but has elected to be treated as a U. S. corporation under Section 897(i) of the Internal Revenue Code, AND HAS ATTACHED TO THIS CERTIFICATE A TRUE AND GENUINE COPY OF THE ACKNOWLEDGMENT OF SUCH ELECTION ISSUED BY THE IRS. B. The Transferor's social security number is C. The Transferor's address is 3. The Transferor understands that this certificate may be disclosed to the Internal Revenue Service by the transferee and that any false statement contained in this certification may be punished by fine or imprisonment (or both). 4. The Transferor understands that each transferee is relying on this certificate in determining whether withholding is required and each transferee may face liabilities if any statement in this certificate is false. 3 0 Y 5. The Transferor hereby indemnifies each transferee, and agrees to defend and hold each transferee harmless, from any liability, cost, damage, or expense which such transferee may incur as a result of: A. the Transferor's failure to pay any U. S. Federal income tax which the Transferor is required to pay under applicable U. S. law, or B. any false or misleading statement contained herein. Under penalties of perjury, I declare that I have examined this certification and to the best of my knowledge and belief it is true, correct, and complete; I further declare that I have authority to sign this document on behalf of the Transferor. EXECUTED in County, State of on Transferor: By: Title: 31 CITY OF PALM SPRINGS, a California charter city and municipal corporation (Herein referred to as "City"), and WESSMAN HOLDINGS, LLC, a California limited liability company (Herein referred to as "Grantor") PROJECT: Belardo Road Bridge and Roadway Project PLHL02-5282(038). City Project 87-49 APN: 513-300-057 (portion) RIGHT OF ENTRY AND TEMPORARY CONSTRUCTION EASEMENT AGREEMENT 1. The right is hereby granted City to enter upon and use the land of Grantor in the City of Palm Springs, County of Riverside, State of California, described as a portion of Assessor's Parcel Number 513-300-057, depicted on the plat map attached hereto, and made a part hereof, for all purposes necessary to facilitate and accomplish the construction of the Belardo Road Bridge and Roadway Project, Federal Aid Project PLHL-5282(038), City Project 87-49, (hereinafter "Project"). 2. The temporary construction easement used during construction of the Project consists of approximately eight thousand nine hundred twenty-seven (8,927) square feet, more particularly described on Exhibit A and shown on Exhibit B, attached hereto and incorporated herein, (hereinafter "Easement Area"). 3. A thirty (30) day written notice shall be given to Grantor prior to using the rights herein granted. The rights herein granted may be exercised for twenty-four (24) months from the thirty (30) day written notice, or until completion of Project, whichever shall be sooner, at which time this agreement shall be deemed null and void. 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 constructing the Project. City agrees not to damage Grantor's property in the process of performing such activities. 5. At the termination of the period of use of Grantor's land by City, but before its relinquishment to Grantor, debris generated by City's use will be removed and the Easement Area will be left in a neat condition. 6. Grantor shall be held harmless from all claims of third persons arising from the use by City of Grantor's land. 1 TCE, Belardo Road Bridge and Roadway Project 32 7. Grantor hereby warrants that they are the owners of the property described above and that they have the right to grant City permission to enter upon and use the land. 8. 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. 9. This agreement shall not be changed, modified, or amended except upon the written consent of the parties hereto. 10. This agreement and its associated Temporary Construction Easement Deed, (hereinafter "Deed"), supersede any and all other prior agreements or understandings, oral or written, in connection therewith. 11. City agrees to pay Grantor for the right to enter upon and use the Easement Area in accordance with the terms hereof. In addition to City's rental of the Easement Area, by separate agreement the parties have agreed to the City's acquisition of a portion of Grantor's property as public right-of-way for the Project, which said acquisition shall be subject to escrow (hereinafter "Acquisition Escrow"). City shall pay into the Acquisition Escrow the sum of Twenty Thousand Nine Hundred Twenty-Five Dollars ($20,925) for the right to enter upon and use Grantor's land in accordance with the terms hereof (hereinafter "Rental Payment"). 12. By execution of this agreement, Grantor hereby agrees to execute the Deed, which shall be furnished to City concurrently with execution of this Agreement. City shall not to record the Deed in the office of the Riverside County Recorder until close of the Acquisition Escrow, at which time Grantor shall be paid the Rental Payment through proceeds from the Acquisition Escrow. 13. Grantor, their 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. [SIGNATURE PAGE FOLLOWS] 2 TCE: Belardo Road Bridge and Roadway Project 33 IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written. CITY GRANTOR CITY OF PALM SPRINGS, a California WESSMAN HOLDINGS, LLC, a. California charter city and municipal corporation, limited liability company By JOHN WESSMAN, its Managing Member David H. Ready City Manager Attest: John Wessman James Thompson City Clerk Approved as to form by: WOODRUFF, SPRADLIN & SMART Douglas G. Holland, Esq. City Attorney Exhibit List Exhibit A Legal Description of the Property Exhibit B Depiction of the Property 3 TCE: Belardo Road Bridge and Roadway Project 34 EXHIBIT A APN 513-300-057 TEMPORARY CONSTRUCTION EASEMENT Being a portion of the West Half of the Southeast Quarter of the Southeast Quarter of Section 22, Township 4 South, Range 4 East, San Bernardino Meridian, according to the official plat thereof, lying within Riverside County, California, being more particularly described as follows, Commencing at the northeast corner of said West Half; Thence North 89038'53" West, along the north line of said West Half, a distance of 30.00 feet to a line parallel with and 30.00 feet westerly of the east line of said West Half, being the Point of Beginning. Thence South 00°38'10" West, along said parallel line, a distance of 750.46 feet to the beginning of a tangent curve, concave easterly, having a radius of 278.40 feet; Thence southerly along said curve through a central angel of 26°50'38", an arc distance of 130.43 feet to the east line of said West Half; Thence South 00138'10" West, along said east line, a distance of 20.82 feet to the beginning of a non-tangent curve, concave easterly, having a radius of 288.40 feet, an initial radial line bears North 60005'58" East; Thence northerly along said curve through a central angel of 30032'12", an arc distance of 153.71 feet to a line parallel with and 40.00 feet westerly of the east line of said West Half; Thence North 00"38'10" East, along said parallel line, a distance of 750,41 feet to the north line of said West Half; Thence South 89°38'53" East, along said north line, a distance of 10,00 feet to the Point of Beginning. The above-described parcel of land contains 8,927 square feet or 0,20 acres, more or less. All as shown on the map attached herewith as Exhibit B, and by reference to, made a part hereof. �� LANb 3 U L 0 DARRIN R GINN No.7075 Darrin P. Ginn, PLS 7075 Date Exp.12131/10 EXP. 12/31/10 Prepared for and on behalf of SC Engineering �P $OF CAL* ° PAGE 1 OF 1 �J E MESQUITE EXHIBIT B AVE cr _ a _ MORONGO RD �S MORONGO RO APN SONORA RD 513-300-045 0 � U POINT OF SITE BEGINNING �N8s3¢'sd"W 58938'53"'E 30.00 N8s 3a 53'w _ 10.00,`�. POINT OF E PALM NORTH LINE W1/2, I I I COMMENCEMENT CANYON DR SE 1/4, SE IA SEC 22, NE CDR w1/2, IRCINITY MAP T4� R4E SBM. �n SE 1/4, sE v 30' SEC 22, r45, R4E, NTS �G I SBM 5 � APN 513-300-057 o a o APN AREA__ R o Lk 513--300-038 t8,927 SF, J :�0.20 ACRES k) A b 10' TCE N II 40' 30 APN :' 3 513-300-056 a pS g EAST UNE W1/2, ~� SE 1/4, SE 1/4, SEC 22, T45, R4E, SBM. 0 D GANO ® N6347'32 1 RIFE \ (R) (R) -50%42 '10"W V OARRIN P. GINN - � -- .- 20.82 Na. 7075 .._. r. Exp. 12/31/10 BELARDO RD APN sTq 0 clalF�� 513-300-014 NZ51 0 APN CURVE DATA DARRIN P. GINN, LS 7075 DATE 513-300-009 b DELTA RADIUS LENGTH EXP 12131/10 26 50'38" 278.40' 130.43' PREPARED FOR AND ON J` _ 30'32'12" 288.40' 153.)i' BEHALF OF SC ENGINEERING DARRIN P. GINN, PE, PLS TEMPORARY CONSTRUCTION EASEMENT 18506 COCQUI ROAD OWNER: WE.SSMAN HOLDINGS, LLC A.P.N.- 513-300-057 APPLE VALLEY, CA 92307 PH: 760-553-6223 DATE; 612512009 DRAWN BY: DPG SHT OF 1 36 .