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HomeMy WebLinkAboutReso 1987-13268 RESOLUTION NO. 13268 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND OSCAR C. DAVILA FOR PURCHASE OF EASEMENTS RELATED TO TELEGRAPH CANYON CREEK FLOOD CONTROL PROJECT AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT The City Council of the City of Chula Vista does hereby resolve as follows: NOW,,THEREFORE, BE IT RESOLVED by the City Council of the City of Chula Vista that that certain agreement between THE CITY OF CHULA VISTA, a municipal corporation, and OSCAR C. DAVILA for purchase of~easements related to Telegraph Canyon Creek Flood Control Project dated the 1st day of October , 1987, a copy of which is attached hereto and incorporated herein, the same as though fully set forth herein be, and the same is hereby approved. BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista be, and he is hereby authorized and directed to execute said agreement for and on behalf of the City of Chula Vista. Presented by Approved as to form by Joh P. L p or of homas J. Harro~JCit½ ~ Pub rks/City Engineer Attorney 0374a ADOPTED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF CrIULA VISTA, CALIFORNIA, this 1st day Of October 19 87 , by the following vote, to-wit: AYES: Councilmembers Malcolm, McCandliss, Cox, Nader NAYES: Council members None ABSTAIN: Counci lmembers None ABSENT: Council members Moore the City of Chula Vista ~ ' City Clerk ~' ~ ,TE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) ss. CITY OF CHULA VISTA ) f, JENNIE M. FULASZ, CMC, CITY CLERK of the City of Chula Vista, California, DO HEREBY CERTIFY thot the obove ond foregoing is 0 full, true ond correct copy of RESOLUTION N0. 13268 ,and thot the some has not been amendedor repealed C_JIY OF CHUtA VISI'A CC-660 AGREEMENT GRANTING TO THE CITY OF CHULA TEMPORARY CONSTRUCTION EASEMENT AND PERMANENT EASEMENT FOR DRAINAGE PURPOSES This Agreement is executed effective October 1, 1987 between OSCAR DAVILA, a resident of California ("Grantor"), and THE CITY OF CHULAVISTA, a municipality of the State of California ("Grantee"), who agree as follows: 1. Recital. This Agreement is made with reference to the following recital of essential facts: 1.1. Grantee represents that the United States Army Corps of Engineers and Grantee are engaged in the cooperative Telegraph Canyon Creek Flood Control Project. 1.2. Grantor represents that he owns the Land (as defined below), a portion of which is in the path of such proposed F{ood Control Project. 1.3. Both Grantor and Grantee desire to avoid litigation regarding the value of the Temporary Easement (as defined below) and the Permanent Easement (as defined below) for drainage purposes necessary to accommodate the proposed Flood Control Project. 2. Definitions. For purposes of this Agreement, the following definitions shall apply: 2.1. "Cash Equivalent" shall mean a certified check, a bank cashier's check, or other immediately available funds. 2.2. "Close of Escrow" shall mean the time when the Permanent Easement (as defined below) is recorded with the County Recorder for the County of San Diego. 2.3. "Easements" shall mean, collectively, the Permanent Easement (as defined below) and the Temporary Easement (as _?[defined below). "Easement" shall mean either of the Easements. ............... 2.4, .... Escrow"Tshail'mean~he~scr0w tO be opene!d pursuant to Paragraph 4 below. 2.5. "Escrow Holder" shall mean Ticor Title Insurance C6~p~ny~fCalif6rnia. 2.6. "Grantee's Improvements" shall mean the drainage box culvert and other improvements to be constructed by or for ~ Grantee on, below or within the Permanent Easement Property (as defined below). ~ ~ 2.7. "Grantor's Improvements" shall mean Grantor's improvements with respect to the Land (as defined below), MSL6308.10A 28-SEP-87 1 comprising a retail building, an office and warehouse building, a parking lot and related improvements. 2.8. "Land" shall mean that certain real property located in the City of Chula Vista, County of San Diego, State of California, more particularly described on attached Exhibit A. 2.9. "Permanent Easement" shall mean the permanent easement with respect to the Permanent Easement Property (as defined below) in the form of attached Exhibit B. 2.10. "Permanent Easement Property" shall mean the real property described in the Permanent Easement. 2.11. "Purchase Price" shall mean $82,000.00. 2.12. "Temporary Easement" shall mean the temporary easement, in the form of attached Exhibit C. 2.13. "Temporary Easement Property" shall mean the real property described in the Temporary Easement. 3. Purchase and Sale; Condition Precedent. Subject to the provisions of this Agreement, Grantor agrees to sell to Grantee, and Grantee agrees to purchase from Grantor, the Easements for the Purchase Price. Notwithstanding anything to the contrary in this Agreement, this Agreement shall become null and void, and have no force or effect, if the United States Army Corps of Engineers does not, on or before October 16, 1987, award a contract for construction of Grantee's Improvements. Grantee shall notify Grantor in writing, on or before October 19, 1987, whether or not the United States Army Corps of Engineers, on or before October 16, 1987, awarded a contract for construction of Grantee's Improvements. 4. Escrow. Promptly after the execution of this Agreement, an escrow (the "Escrow") shall be opened with Escrow Holder, for the consummation of the transactions under this Agreement. This Agreement shall be used as escrow instructions, and Grantee and Grantor shall also execute such further instructions as the Escrow Holder may require, consistent with this Agreement. The Escrow may be opened by the deposit with Escrow Holder of a copy of this Agreement executed by Grantee and Grantor. Any inconsistency between any such further escrow instructions and this Agreement shall be resolved in a manner consistent with this Agreement which shall prevail unless any such inconsistent provision is expressly waived by Grantee and Grantor in a writing specifically referring to the fact of such inconsistency and the desire to waive it. If any requirements relating to the duties of Escrow Holder in this Agreement are not acceptable to Escrow Holder or if Escrow Holder requires additional instructions, Grantee and Grantor shall make such deletions, substitutions and additions in or to the escrow instructions as Grantee and Grantor shall mutually approve and which do not materially change this Agreement or its intent. MSL6308.10A 28-SEP-87 2 5. Purchase Price. The Purchase Price shall be paid as follows: On or before the Close of Escrow, Grantee shall deposit ~with Escrow Holder the sum of $82,000.00, plus any other sums ~necessary to close the Escrow. 6. Grantor's Deliveries to Escrow Holder. Grantor shall deliver to Escrow Holder on or prior to the Close of Escrow, for disbursement as provided in this Agreement, the delivery of which shall be a condition to the Close of Escrow, the Permanent Easement, duly executed and acknowledged by Grantor. 7. Grantee's Deliveries. Grantee shall deliver to Escrow Holder on or prior to the Close of Escrow, for disbursement as provided in this Agreement, the delivery of which shall be a condition to the Close of Escrow, (a) cash or Cash Equivalent in the amount required of Grantee under this Agreement, and (b) a letter in the form of attached Exhibit D, on the official stationery of Grantee, executed by Grantee, which Grantor may, at its election, rely upon in connection with Grantee's obtaining certain benefits under Section 1033 of the Internal Revenue Code of 1986, as amended. 8. Temporary Easement. Grantor shall deliver to Grantee, immediately upon the execution of this Agreement, the Temporary Easement, executed by Grantor. The Temporary Easement shall not be recorded. 9. Close of Escrow. The Close of Escrow shall occur on or before October 29, 1987. If the Close of Escrow does not occur on - or before October 29, 1987, then Grantee or Grantor may at any time thereafter give written notice to Escrow Holder to cancel the Escrow and return all money and documents in Escrow to their respective depositors. Escrow Holder shall comply with such notice without further consent from any other party. Such cancellation of Escrow shall not prejudice or limit any legal or equitable rights Grantee and/or Grantor may have. 10. Costs. Grantee shall pay (a) Escrow Holder's fee, and (b) documentary transfer taxes, and all other costs, associated with recording the Permanent Easement. ~i.~ll. ,Disbursements and Other Actions by Escrow Holder~,On the Close of Escrow, provided Escrow Holder has received all the documents, instruments and funds set forth in Paragraphs 6 and 7 above, Escrow Holder shallpromptly perform all of the following: 11'1. Recording. Cause the Permanent Easement, and any other documents which Grantee and Grantor may mutually direct, to be recorded with the County Recorder for the County of San Diego. 11.2. Disbursement to Grantor. Disburse to Grantort or in accordance with Grantor's instructions, all funds deposited with Escrow Holder by Grantee in payment of the Purchase Price. MSL6308.10A 28-SEP-87 3 12. Survival of Covenants. Except as expressly provided to the contrary elsewhere in this Agreement, the covenants, representations and warranties of this Agreement shall survive the ~ Close of Escrow and the recordation and delivery of the Permanent Easement. 13. Grantee's Representations and Warranties. The truth and accuracy of the following shall constitute a condition to the Close of Escrow and Grantee represents and warrants that the following are true and accurate as of the date of this Agreement, shall be true and accurate as of the Close of Escrow, and shall survive the Close of Escrow: 13.1. On or before January 1, 1988, (a) construction of, installation of and all work related to Grantee's Improvements will be completed, (b) Grantee's Improvements will provide adequate drainage for the Land and Grantor's Improvements, and (c) Grantee's Improvements shall be constructed and completed (including without limitation being properly compacted with soil (to 95 percent of maximum dry density with respect to the top 18 inches) such that the Permanent Easement Property and the Temporary Easement Property are brought to the grade as indicated on Grantor's final approved grading plans with respect to the Land), in such a manner that Grantor may, without performing any additional work with respect to the Permanent Easement Property, install on the Land (including without limitation the Permanent Easement Property and the Temporary Easement Property) the necessary base and paving for an asphalt parking lot. 13.2. Grantee has the legal power, right and authority to enter into this Agreement and to consummate the transactions contemplated by this Agreement. 13.3. All requisite action has been taken by Grantee in connection with entering into this Agreement and the consummation of the transactions contemplated by this Agreement. 13.4. The individual executing this Agreement on behalf of Grantee has the legal power, right, and actual authority to bind Grantee to the terms and conditions of this Agreement. 13.5. This Agreement and all documents required by this Agreement to be executed by Grantee shall be valid, legally binding obligations of and enforceable against Grantee in accordance with their terms, except to the extent that the enforceability of such terms may be affected by bankruptcy laws and other laws affecting creditors' rights generally, and the discretionary nature of equitable remedies which may be sought to be enforced. 13.6. Construction of Grantee's Improvements shall be done in accordance, and in compliance, with, and shall not violate, any federal, state, county, municipal or other governmental agency laws, ordinances, regulations, orders, rules and requirements or any liens, encumbrances, adverse MSL6308.10A 28-SEP-87 4 claims, easements, rights, rights-of-way, covenants, conditions, restrictions or other matters that affect the Land. 13.7. During construction of Grantee's Improvements, there shall be reasonable access to and from the Land (other than the Permanent Easement Property and the Temporary Easement Property) and all of Grantor's Improvements. 13.8. Upon completion of Grantee's Improvements, there shall be reasonable access to and from the Land and all of Grantor's Improvements. 13.9. Grantee's Improvements shall be operated and maintained in such a manner that (a) will not substantially interfere with or adversely affect Grantor's parking lot, (b) will provide adequate drainage for the Land and Grantor's Improvements, and (c) will not substantially interfere with, delay or adversely affect construction, installation or any work related to Grantor's Improvements. 14. Grantor's Representations and Warranties. The truth and accuracy of the following shall constitute a condition to the Close of Escrow and Grantor represents and warrants that the following are true and accurate as of the date of this Agreement, shall be true and accurate as of the Close of Escrow, and shall survive the Close of Escrow. 14.1. Grantor has the legal power, right and authority to enter into this Agreement and to consummate the transactions contemplated by this Agreement. 14.2. This Agreement and all documents required by this Agreement to be executed by Grantor shall be valid, legally binding obligations of and enforceable against Grantor in accordance with their terms, except to the extent that the enforceability of such terms may be affected by bankruptcy laws and other laws affecting creditors' rights generally, and the discretionary nature of equitable remedies which may be sought to be enforced. 14.3~ Grantor shall not interfere with Grantee'S construction of Grantee's Improvements. 15. Grantee's Inspection. Grantee acknowledges that it has examined the Land to Grantee's satisfaction. Grantee further acknowledges that Grantee is not purchasing in reliance on any statements or representations by Grantor with respect to the condition of the Land or otherwise, except as expressly set forth in this Agreement. 16. Partial invalidity. Each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. If any provision of this Agreement or the application of such provision to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or MSL6308.10A 28-SEP-87 5 the application of such provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected by such invalidity or unenforceability, unless such provision or such application of such provision is essential to this Agreement. 17. Interpretation. Whenever the context so requires, all words used in the singular shall be construed to have been used in the plural (and vice versa), each gender shall be construed to include any other genders, and the word "person" shall be construed to include a natural person, a corporation, a firm, a partnership, a joint venture, a trust, an estate or any other entity. 18. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. 19. Further Assurances. Each party to this Agreement shall execute all instruments and documents and .take all actions as may be reasonably required to effectuate this Agreement. 20. Venue and Jurisdiction. For purposes of venue and jurisdiction, this Agreement shall be deemed made and to be performed in the City of San Diego, California. 21. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed'an original and all of which together shall constitute one document. 22. Expenses. The prevailing party to this Agreement shall be entitled to recover from the unsuccessful party to this Agreement all costs, expenses and actual attorney's fees relating to the enforcement or interpretation of, or any litigation or arbitration relating to, this Agreement. 23. Modification in Writing. This Agreement may be modified only by a writing executed by the party to this Agreement against whom enforcement of such modification is sought. 24. Successors-in-Interest and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors- in-interest and assigns of each party to this Agreement, but nothing in this Paragraph shall create any rights enforceable by any other persons not a party to this Agreement, unless such rights are expressly granted in this Agreement to other specifically identified persons. 25. Headings. The headings of the various Paragraphs of this Agreement have been inserted only for convenience, and shall not be deemed in any manner to modify or limit any of the provisions of this Agreement, or be used in any manner in the interpretation of this Agreement. 26. Time of Essence. Time and strict and punctual performance are of the essence with respect to each provision of - this Agreement. MSL6308.10A 28-SEP-87 6 27. Prior Understandinqs. This Agreement contains the entire agreement between the parties to this Agreement with respect to the subject matter of this Agreement and supersedes all prior !understandings, agreements, representations and warranties, if any, with respect to such subject matter. 28. Notices. All notices or other communications required or permitted to be given to a party to this Agreement shall be in writing and shall be personally delivered or sent by registered or certified mail, postage prepaid, return receipt requested, to such party at the following respective address: Grantor: Mr. Oscar Davila Cal Stores 172 N. E1 Camino Real Encinitas, CA 92024 with a copy to: Solomon, Ward, Seidenwurm & Smith 401 B Street, Suite 1200 San Diego, CA 92101 Attention: Michael S. Levinson Grantee: The City of Chula Vista 276 Fourth Avenue Chula Vista, CA 92010 Attention: Mr. John P. Lippitt, Director of Public Works/City Engineer Each such notice or other communication shall be deemed given, delivered and received upon its actual receipt, except that if it is mailed in accordance with this Paragraph, then it shall be deemed given, delivered and received on the delivery date or the date on which delivery is refused by the addressee, in either case, in accordance with the United States Postal Service's return receipt. Any party to this Agreement may give a notice of a change of its address to the other party to this Agreement. 29. Waiver. No delay or omission by Grantor in the exercise of any right or remedy shall impair such right or remedy or be construed as a waiver. A consent by Grantor to or approval by Grantor of any act shall not be deemed to waive or render unnecessary consent to or approval of any other or subsequent act. Any waiver by Grantor of a default under this Agreement must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 30. Indemnification. Grantee shall indemnify Grantor against all liabilities, costs, expenses, attorneys' fees and claims (except to the extent caused by Grantor's negligent act, wilful misconduct or breach of this Agreement), and all costs, expenses and attorneys' fees incurred in the defense of any such claim and any action or proceeding brought on any such claim, (except to the extent they result from Grantor's negligent acts, willful ~misconduct or breach under this Agreement) arising from any activity, work or thing done, permitted or suffered by Grantee, or MSL6308.10A 28-SEP-87 7 any of Grantee ' s agents, employees, representatives, invitees, guests, licensees or contractors in the course of completing Grantee's Improvements. If any action or proceeding is brought against Grantor by reason of any such claim, Grantee upon notice from Grantor shall defend such action or proceeding at Grantee's sole cost by counsel satisfactory to Grantor. 31. LIQUIDATED DAMAGES. FOR PURPOSES OF THIS PARAGRAPH, "GRANTEE'S DELAY" SH~T.T. MEAN ANY BREACH OF THE REPRESENTATION SET FORTH IN PARAGRAPH 13.1 ABOVE, EXCEPT THAT GRANTEE'S DELAY SH~T.T. NOT MEAN ANY BREACH OF SUCH REPRESENTATION THAT COULD NOT HAVE BEEN REASONABLY DISCOVERED BY GRANTOR UPON COMPLETION OF GRANTEE'S IMPROVEMENTS. FOR PURPOSES OF THIS PARAGRAPH, "EXCESS ADVERSE WEATHER DAY" SH~T.T. MEAN A DAY OF SEVERE ADVERSE WEATHER, ABOVE AND BEYOND NORMAL STANDARDS, THAT PREVENTS WORK FOR 50 PERCENT OR MORE OF A WORK DAY OF THE CONTRACTOR HIRED TO INST~T.T. AND COMPLETE GRANTEE'S IMPROVEMENTS AND THAT DELAYS WORK CRITICAL TO THE TIMELY COMPLETION OF GRANTEE'S IMPROVEMENTS. FOR PURPOSES OF THIS PARAGRAPH, THE NUMBER OF DAYS OF GRANTEE'S DELAY SH~T.T. EQUAL (A) THE NUMBER OF DAYS FROM JANUARY 1, 1988 UNTIL COMPLETION OF GRANTEE'S IMPROVEMENTS IN ACCORDANCE WITH PARAGRAPH 13.1 ABOVE, LESS (B) THE NUMBER OF EXCESS ADVERSE WEATHER DAYS PRIOR TO COMPLETION OF GRANTEE 'S IMPROVEMENTS (OTHER THAN EXCESS ADVERSE MEATHER DAYS THAT OCCUR AFTER JANUARY 1, 1988 THAT WOULD NOT HAVE AFFECTED COMPLETION OF GRANTEE'S IMPROVEMENTS HAD THERE BEEN NO DELAY IN COMPLETION OF GRANTEE'S IMPROVEMENTS THAT WAS NOT EXCUSED BY ANY EXCESS ADVERSE WEATHER DAYS). WITHIN THREE DAYS AFTER THE END OF EACH MONTH DURING WHICH THERE IS AN OCCURRENCE OF GRANTEE'S DELAY, GRANTEE SHALL PAY TO GRANTOR, AS LIQUIDATED DAMAGES AND AS GRANTOR'S SOLE REMEDY FOR SUCH GRANTEE'S DELAY (AND IN LIEU OF GRANTOR'S MAINTAINING AGAINST GRANTEE AN ACTION FOR INVERSE CONDEMNATION FOR UNREASONABLE DELAY IN INSTITUTING EMINENT DOMAIN), FOR EACH DAY OF GRANTEE'S DELAY, GASH IN THE AMOUNT OF $973.63. FOR EXAMPLE, IF GRANTEE'S DELAY LASTS UNTIL FEBRUARY 7, 1988, THEN ON OR BEFORE FEBRUARY 3, 1988, GRANTEE SHALL PAY TO GRANTOR LIQUIDATED DAMAGES IN THE AMOUNT OF $29,208.90 (FOR THE 30 DAYS OF GRANTEE'S DELAY DURING THE MONTH OF JANUARY, 1988) AND ON OR BEFORE MARCH 3, 1988, GRANTEE SHALL PAY TO GRANTOR LIQUIDATED DAMAGES IN THE AMOUNT OF $6,815.41 (FOR THE SEVEN DAYS OF GRANTEE'S DELAY DURING THE MONTH OF FEBRUARY, 1988). THE PARTIES TO THIS AGREEMENT ACKNOWLEDGE AND RECITE THAT SUCH SUNS ARE REASONABLE CONSIDERING ~r.r. OF THE CIRCUNSTANCES EXISTING ON THE DATE OF THIS AGREEMENT, INCLUDING THE RELATIONSHIP OF SUCH SUNS TO THE RANGE OF HARM TO GRANTOR THAT COULD BE ANTICIPATED AND THE ANTICIPATION THAT PROOF OF ACTUAL DAMAGES WOULD BE COSTLY OR INCONVENIENT. THE PARTIES TO THIS AGREEMENT ACKNOWLEDGE THAT IT WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX THE ACTUAL DAMAGE THAT GRANTOR WOULD INCUR IF GRANTEE BREACHES SUCH PARAGRAPH OF THIS AGREEMENT. IN PLACING THEIR INITIALS BELOW, THE PARTIES TO THIS AGREEMENT SPECIFICALLY CONFIRM THE ACCURACY OF SUCH FACTS AND THE FACT THAT EACH OF THE PARTIES TO THIS AGREEMENT WAS REPRESENTED BY COUNSEL WHO EXPLAINED THE CONSEQUENCES OF THIS PARAGRAPH AT THE TIME THIS AGREEMENT WAS MADE. IF GRANTEE BREACHES THIS AGREEMENT IN ANY MANNER OTHER THAN THE OCCURRENCE OF GRANTEE'S DELAY, INCLUDING WITHOUT LIMITATION ANY BREACH OF THE REPRESENTATION SET FORTH IN PARAGRAPH 13.1 ABOVE THAT COULD NOT HAVE BEEN REASONABLY DISCOVERED BY GRANTOR UPON COMPLETION OF GRANTEE'S IMPROVEMENTS, THEN MSL6308.10A 28-SEP-87 8 :' GRANTOR SPLALT. BE ENTITLED TO PURSUE ANY LEGAL OR EQUITABLE REMEDY AVAILABLE TO GRANTOR. GRANTOR'S INITIALS GRANTEE 'S INITIALS THE CITY OF CHULA VISTA, a municipality Of the State of California Chula Vista City Attorney Oscar Davila MSL6308.10A 28-SEP-87 9 Exhibit A · Legal Description Parcel 2 in the City of Chula Vista, County of San Diego, State of California, according to Map thereof No. 990 filed in the Office of the County Recorder for the County of San Diego, State of California on September 14, 1972. MSL6308.10A 28-SEP-87 10 LWHEN .RECORDED, PLEASE MAIL Exhibit B !THIS INSTRUMENT TO: !City Clerk ~Ctt~ qf Chula Vista ,- i /ox 1087 .hugo Vista, CA 92012 ASSESSOR'S PARCEL NO. 618-OlO-11 NO 1TRANSFER TAX DUE SPACE ABOVE FOR RE~RDERmS USE ONLY. E~LSE)~EI~F FOR DP~AIILAGE PURPOSES OSCAR DAYILA tidies) hereby grant to the City of Chula Vista, in the County of Sa~ Diego, State of Caltfo. rnia, an easement and right-of-way for, and the right to construct, maintain, operate, replace, remove, or enlarge a drain sewer and appurtenant structures in, upon, over and across that certain real property situated in the County of San Diego, State of California, and more particularly described as follows: That portion of Parcel 2 in the City of Chula Vista, County of San Diego, State of California according to Parcel Map No. 990 filed in the Office of the Recorder of said County on September 14, 1972, mbre particularly described as fol 1 ows: Beginning at the southeast corner of said Parcel 2; thence along the easterly line of said Parcel 2 North 18'21'00" West, a distance of 14,50 feet to the True Point of Beginning of the center line of a 25.00 foot wide drainage easement; thence along the center line of said'easement South 71'40'30" West, a' istance of 318.52 feet to a point on a radial line of lZO feet radius curve, .he ce.ter of said curve be.rs ,orth 1,'l,'3O' West; t,..c.e northerly along said curve through a central angle of 15°00'0)· n of 31o42 feet; thence tangent to said curve South 86'40j37' West, a distance 8.96 feet to the begi nni ng of a tangent 120 feet radi us curve concave southerly; thence westerly and southerly along said curve through a central angle of 15'00'07' an arc-length of 31.42 feet; thence tangent to said curve South 71°40'30' West, a distance of 221.85 feet to the intersection with th~ I~esterly line of said Parcel 2, according to said Map No. 990. The side) the above described easement shall be lengthened or shortened to terminate at the easterly and westerly sides of said Parcel 2. Together with the right to enter upon and to pass and repass over and along said easement and right-of-way and to deposit tools, implements and'other materials thereon by said City of Chula Vista, its officers, agents, and employees and by a contractor, his agents and employees engaged by said City, whenever and wherever necessa~ for the purposes above set forth. Notwithstanding anything to ~he contrary in the preceding sentence, said City acknowledges and agrees that routine maintenance (other than such routine maintenance that can be accomplished solely wi~h access through the manhole cover that is to be located on such easement property) of such drain sewer and appurtenan~ structures is not necessary and that said City's rights set forth in' the preceding aen~ence shall only be exercised in the event of serious or significant blockage or damage to such drain sewer and appurtenant structures,' which are 'not currently foreseeable. G~ 'or, Oscar Davila, retains the right to install' on said easement and right-of-way a p~ ;sign provided that such pole sign complies with applicable laws and does not interfe ' with or damage the box culvert and appurtenant structures of such drain sewer. It is understood and agreed by the parties hcrcto that the Grantee shall indemnify and hold the Grantor harmless against all claims for damage or suits for loss, including costs and '~orney's fees, arising from injury to any person(s) or property or life, caused by or - .~ulting from acts, or omissions by the Grantee ~ts successors or assigns, arising from the ~ construction, operation or maintenance of the a~orementioned drain sewer or in using, operating or traveling over the land within the hereinbefore described Grant of Easement. Notwithstanding anything to the contrary in this Easement for Drainage Purposes, this Easement for Drainage Purposes is subject to all of the provisions of the Agreement dated October 1 , 1987 between Oscar Davila and The City of Chula Vista and to the extent ot any inconsistencies between this Easement for Drainage Purposes and such Agreement, such Agreement shall control. WITNESS my hand this day of , 1987. Oscar Davila State of California ) )ss. County of San Diego) On this day of , in the year 1987, before me, the undersigned, a Notary Public m and for Cahlornla, personally appeared Oscar Davila, personally known to me or proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to this instrument, and acknowledged that he executed it. WITNESS my hand and official seal. Exhibit C TEMPORARY GRANT OF CONSTRUCTION EASEMENT The undersigned, as legal owner/owners of that real property shown on County of San Diego Assessor's Map as Assessment Parcel Number 618-OlO-11 , as of do/does hereby grant to the City of Chula Vista, an easement and right-of-way for the purpose of making the necessary cut or fill slopes, and/or to place temporaW construction forms and/or to alter existing driveways, entry walks or other structures or obstructions upon and across that portion of the above mentioned real property described as follows:' ll~at portion of Parcel 2 in the City of Chula Vista, County of San Diego, State of California according to Parcel Map No. 990 filed in the Office of the Recorder of said County on September 14, 1972, more particularly described as follows: Beginning at the southeast corner of said Parcel 2; thence along the easterly line of said Parcel 2 North 18'21'00" West, a distance of 14.50 feet to the True Point of Beginning of the center line of a 50 foot wide construction easement within said Parcel 2 per Map 990; thence along the center line of said easement South 71'40'30" West, a distance of 318.52 feet to a point on a radial line of 120 feet radius curve, the center of said curve bears North 18°19'30'' West; thence westerly and northerly along said curve through a central angle of 15°00'07" an arc-length of 31.42 feet; thence tangent to said curve South 86'40'37" West, a distance of 8.96 feet to the beginning of a tangent 120 feet radius curve concave southerly; thence westerly and southerly along said curve through a central angle of 15°00'07" an arc-length of 31.42 feet; thence tangent to said curve South 71°40'30'' West, a distance of 221.85 feet to the intersection with the westerly line of said Parcel 2, according to said Map No. g90. The sides of the above described easement shall be lengthened or shortened to terminate at the easterly, southerly, and westerly sides of said Parcel 2. together with the right to enter upon and to pass and repass over and along said easement and right-of-way and to deposit tools, implements, and other materials thereon by said City of Chula Vista, its officers, agents and employees and by any contractor, his agents and employees engaged by said City for the purposes above set forth. The grantor further understands that the above described easement and right-of-way shall terminate and become extinguished, and all the rights of the grantee therein shall automatically revert to the grantor, its successors or assigns, without any further act of either the grantee or of the grantor as of the filing of the pertinent "Notice of Completion." Notwithstanding anything to the contrary in this Temporary Grant of Construction Easement, this Temporary Grant o[ Construction Easement is subject to all of the provisions o[ the Agreement dated October 1 , 1987 between Oscar Davila and The City of Chula Vista and to the extent of any inconsistencies between this Temporary Grant of Construction Easement and such Agreement, such Agreement shall control. Oscar Davila Date WPC 2838E CIIY OF CHULA VISTA OFFIGE OF THE GITY GLERK October 9, 1987 Mr. Oscar C. Davila 172 N. E1 Camino Real Encinitas, CA 92024 Dear Mr. Davila: The City of Chula Vista, a municipality of the State of California, hereby confirms to you that we have entered into the Agreement Granting to the City of Chula Vista Temporary Construction Easement and Permanent Easement for Drainage Purposes under threat of, and in lieu of initiating, condem- nation proceedings against the real property described below. This letter is being given to you pursuant to section 1033 of the Internal Revenue Code of 1986. The real property involved in this transaction is legally described as follows: Parcel 2 in the City of Chula Vista, County of San Diego, State of California, according to Map thereof No. 990 filed in the Office of the County Recorder for the County of San Diego, State of Cali- fornia on September 14, 1972. Nothing contained in this letter should be construed as rendering tax advice to you in connection with this transaction. Very truly yours, CITY OF CHU~ By: . APPROVED AS TO FORM: Chula 276 FOURTH AVENUE/CHULA VISTA, CALIFORNIA 92010/(619) 691-5041 CI'IY OF CHULA VISTA . OFFICE OF THE CITY CLERK October 12, 1987 Ticor Title Insurance Company of California 925 "B" Street San Diego, CA 92101 ATTN: Virginia Knatt Escrow Officer Dear Ms. Knatt: Please find enclosed documents needed to open Escrow as explained in paragraph number four, page 2 of the "Agreement Granting to the City of Chula Vista Temporary Construction Easement and Permanent Easement for Drainage Purposes." I am enclosing all of the signed originals for this transaction that we ha~e processed through this office, however, I have sent an "Easement for Drainage Purposes" which Oscar Davilla needed to sign and notarize and a "Temporary Grant of Construction Easement" to his attorney Michael Levinson of Solomon, Ward, Seidenwurm & Smith at 401 "B" Street, Suite 1200, San Diego, 92101° Mr. Saucedo, of the Engineering Department here at the city informs me that they will forward this information to you when signed. If you have any questions regarding this matter please feel free to call Mr. Roberto Saucedo at the City Engineering Department at 691-5023. Thank you for your help in this matter. Mary E. Chavez City Clerk's Office CC: Roberto Saucedo Michael Levinson (Solomon,Ward,Seidenwurm & Smith) Oscar Davilla 276 FOURTH AVENUE/CHULA VISTA. CALIFORNIA 92010/(619) 691-5041 CIIY OF CHULA VISI'A _ OFFIGE OF THE GITY GLEFtK October 9, 1987 Mr. Oscar C. Davila 172 N. E1 Camino Real Encinitas, CA 92024 Dear Mr. Davila: The City of Chula Vista, a municipality of the State of California, hereby confirms to you that we have entered into the Agreement Granting to the City of Chula Vista Temporary Construction Easement and Permanent Easement for Drainage Purposes under threat of, and in lieu of initiating, condem- nation proceedings against the real property described below. This letter is being given to you pursuant to section 1033 of the Internal Revenue Code of t986. The real property involved in this transaction is legally described as follows: Parcel 2 in the City of Chula Vista, County of San Diego, State of California, according to Map thereof No. 990 filed in the Office of the County Recorder for the County of San Diego, State of Cali- fornia on September 14, 1972. Nothing contained in this letter should be construed as rendering tax advice to you in connection with this transaction. Very truly yours, CITY OF CHT~~A By: . APPROVED AS TO FORM: 276 FOURTH AVENUE/CHULA VISTA. CALIFORNIA 920~0/(619) 691-5041 Exhibit D [Letterhead of City of Chula Vista] Date Mr. Oscar C. Davila 172 N. E1 Camino Real Encinitas, CA 92024 Dear Mr. Davila: The City of Chula Vista, a municipality of the State of California, hereby confirms to you that we have entered into the Agreement Granting to the City of Chula Vista Temporary Construction Easement and Permanent Easement for Drainage Purposes under threat of, and in lieu of initiating, condemnation proceedings against the real property described below. This letter is being given to you pursuant to Section 1033 of the Internal Revenue Code of 1986. The real property involved in this transaction is legally described as follows: Parcel 2 in the City of Chula Vista, County of San Diego, State of California, according to Map thereof No. 990 filed in the Office of the County Recorder for the County of San Diego, State of California on September 14, 1972. Nothing contained in this letter should be construed as rendering tax advice to you in connection with this transaction. Very truly yours, CITY OF CHULA VISTA By: APPROVED AS TO FORM: