HomeMy WebLinkAboutROW Agreement - Bikepath - Church of Jesus Christ of Latter day SaintsPARCEL NO.: 052-162-025
PROJECT:,City of San Luis Obispo — The Church of Jesus Christ of Latter-day Saints Easement
TITLE REPORT NO.: 4001-5578691
RIGHT OF WAY AGREEMENT
(WITH ESCROW INSTRUCTIONS)
THIS AGREEMENT is made and entered into by and between
Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints, a
Utah corporation sole,
(hereinafter called "Grantor"), and
the City of San Luis Obispo, a municipal corporation and a charter city in the County of
San Luis Obispo, State of California
(hereinafter called "City").
An instrument in the form of an Easement Deed for public trail purposes ("Deed")
covering the property particularly described therein ("Easement Area"), has been executed
concurrently with this Agreement and delivered to City representatives.
In consideration of which, and other considerations hereinafter set forth, it is mutually
agreed as follows:
1. The parties have herein set forth the whole of their agreement. The performance of
this Agreement constitutes the entire consideration for said document and shall relieve the City
of all further obligation or claims on this account, or on account of the location, grade or
construction of the proposed public improvement, except as otherwise provided in this
Agreement or the Deed.
2. The City shall:
A. PAYMENT - Pay to the order of the Grantor the sum of FOUR HUNDRED
EIGHTEEN THOUSAND SEVEN HUNDRED DOLLARS ($418,700) ("Payment Amount")
as consideration in full for the real property interests conveyed in the Deed, for the loss,
replacement and moving of any improvements, and for entering into this Agreement. Said sum
shall be paid upon the Close of Escrow, as defined in Section 4(A)(ii) hereafter. Grantor and
City acknowledge and agree that the Payment Amount and the terms of the Deed and this
Agreement represent the full and total consideration for the easements established by the Deed.
With the exception of any rights and obligations created pursuant to this Agreement or the Deed,
Grantor hereby forever releases and discharges City and its respective officials, officers,
directors, and employees from any and all claims, demands, causes of action, obligations, and
liabilities of every kind and nature which relate to City's acquisition of the real property interests
conveyed in the Deed. It is further understood and agreed that each party hereby waives any and
all rights under Section 1542 of the Civil Code of the State of California which reads as follows,
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Is
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE
TIME OF EXECUTING THE RELEASE WHICH, IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
B. RECORDATION OF INSTRUMENT - Accept the Deed and cause the same to be
recorded in the office of the San Luis Obispo County Recorder.
C. MISCELLANEOUS COSTS - Pay any escrow, title insurance, and recording fees
incurred in this transaction.
D. CLEARANCE OF BONDS ASSESSMENTS OR DELINQUENT TAXES - Have
the authority to deduct and pay from the amount shown in Clause 2.A. above any amount
necessary to satisfy any bond demands and delinquent taxes due in any year except the year in
which this escrow closes, together with penalties and interest thereon, and/or delinquent and
unpaid nondelinquent assessments which have become a lien at the close of escrow.
E. CONSTRUCTION AND RESTORATION - At no expense to Grantor and as part of
City's construction work, remove and reinstall between Grantor's remaining property and the
new Easement Area boundary the existing 6' high metal security fence, or a comparable
replacement fence, along Foothill Boulevard. City shall also install a fence generally matching
Grantor's current perimeter fencing, along the boundary of the trail, between the trail and
Grantor's remaining property. Further, City will replant eight (8) trees within the Temporary
Construction Easement upon Grantor's property, upon completion of trail construction. The City
shall conduct all construction activities in a good and workmanlike manner in compliance with
all laws, rules, and ordinances, both present and future. The City represents and warrants that all
construction shall be free from defects in material and workmanship as well as design and fitness
and sufficiency for its intended purposes in accordance with the terms of the Deed. Neither the
City nor its officials, officers, directors, employees, representatives, contractors, subcontractors,
guests, invitees or agents (the "City's Agents") shall perform any construction activities on any
Sunday.
F. INDEMNIFICATION - Indemnify and hold harmless the Grantor from any and all
claims, damages, costs, judgments, liens, assessments, or liability of any kind proximately
caused by City, the City's Agents, or the public arising from City construction, restoration,
maintenance and operations of City facilities within the Easement Area or use of the Easement
Area by the City, the City's Agents or the public. City's obligation to indemnify and hold
harmless Grantor as provided in this Paragraph 2.F shall not extend to any claims, damages,
costs, judgments, or liability which arise from or related to the gross negligence or willful
misconduct of Grantor or any other person acting in concert with them.
G. ACCESS - Authorize vehicular access from Grantor's property to Foothill Boulevard
across the Easement Area in conjunction with a future development application on Grantor's
property. The design and location of said access is subject to City's engineering standards and
must undergo City's review process.
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3. The Grantor:
A. PERMISSION TO ENTER - Hereby grants to the City, its agents and contractors,
permission to enter upon the Easement Area prior to the close of escrow for the purposes of pre -
construction surveys and studies, subject to all applicable terms and conditions contained in this
Agreement and the associated Easement Deed.
B. TAX REPORTING AND WITHHOLDING — The Foreign Investment in Real
Property Tax Act of 1980 ("FIRPTA"), as amended by the Tax Reform Act of 1984, places
special requirements for tax reporting and withholding on the parties to a real estate transaction
where the transferor (Grantor) is a non-resident alien or non-domestic corporation or partnership,
or is a domestic corporation or partnership controlled by a non-resident or non-resident
corporation or partnership. In accordance with the provisions of Section 1445 of the Internal
Revenue Code of 1954, as amended, and any regulations promulgated thereunder, Grantor shall
execute an affidavit under penalty of perjury setting forth Grantor's name, address, federal tax
identification number, and certifying whether Grantor is a "foreign person" in accordance with
the provisions of the Internal Revenue Code. Further, tax withholding may be required in
accordance with the California Revenue and Taxation Code Section 18662. It is specifically
understood and agreed by Grantor that closing of this escrow is subject to, and contingent upon,
deposit into escrow of a FIRPTA Affidavit of Non -Foreign Status and a California Form 593-C,
Real Estate Withholding Certificate and associated required paperwork, completed and signed by
Grantor, and Escrow Agent is hereby authorized and instructed to withhold from Grantor's
proceeds amounts so required by these laws and to forward any amounts withheld to the
appropriate taxing authority.
C. SUPPLEMENTAL FORMS — Agrees to provide all required supplemental forms
necessary to complete this transaction, including a W-9 Form required for payment processing.
4. The Parties agree:
A. ESCROW - At City's option, to open an escrow in accordance with this Agreement at
an escrow company of City's choice. Opening an escrow shall be at City's sole discretion and
City may decide to process this transaction without the use of an escrow agent. However, if an
escrow agent is utilized, this Agreement constitutes the joint escrow instructions of City and
Grantor, and the escrow agent to whom these instructions are delivered is hereby empowered to
act under this Agreement. The parties hereto agree to do all acts necessary to close this escrow
in the shortest possible time.
If an escrow is utilized, as soon as possible after opening of escrow, City will deposit the
executed Deed by Grantor, with Certificate of Acceptance attached, with the escrow agent on
Grantor's behalf. City agrees to deposit the purchase price upon demand of escrow agent. City
and Grantor agree to deposit with escrow agent all additional instruments as may be necessary to
complete this transaction. All funds received in this escrow shall be deposited with other escrow
funds in a general escrow fund account(s) and may be transferred to any other such escrow trust
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account in any State or National Bank doing business in the State of California. All
disbursements shall be made by check or wire transfer from such account.
Any taxes which have been paid by Grantor, prior to opening of this escrow, shall not be
pro -rated between City and Grantor, but Grantor shall have the sole right after close of escrow, to
apply to the County Tax Collector of said County for any refund of such taxes which may be due
Grantor for the period after City's acquisition.
i) ESCROW AGENT DIRECTIVES - Escrow Agent is authorized to, and shall:
a) Pay and charge Grantor for any unpaid delinquent taxes and/or any penalties
and interest thereon, and for any delinquent assessments or bonds against that
portion of Grantor's property subject to this transaction as required to convey
clear title.
b) Pay and charge City for any escrow fees, charges and costs payable under
Paragraph 2.C. of this Agreement;
c) Disburse funds and deliver Deed when conditions of this escrow have been
fulfilled by City and Grantor.
d) Following recording of Deed from Grantor, provide City with a CLTA Standard
Coverage Policy of Title Insurance in the amount of $418,700 issued by First
American Title Company showing that title to the herein real property is vested
in City, subject only to the following exceptions, and the printed exceptions and
stipulations in said policy:
1) Real Property Taxes for the fiscal year in which escrow closes;
2) Public utility easements and public rights of way;
3) Items No. 1 through 11 of the preliminary title report issued by First
American Title Company, dated October 24, 2017, referenced as
Order No 4001-5578691;
4) Other items that may be approved in writing by City in advance of
the close of escrow.
ii) CLOSE OF ESCROW - The term "close of escrow", if and where written in these
instructions, shall mean the date necessary instruments of conveyance are
recorded in the office of the County Recorder. Recordation of instruments
delivered through this escrow is hereby authorized.
B. JUDGMENT IN LIEU OF DEED - In the event Grantor does not deliver the Deed in
a reasonable time under the terms of this Agreement, the City may file an action in eminent
domain to pursue the acquisition of the real property interests described in the referenced Deed,
and this Agreement shall constitute a stipulation which may be filed in said proceedings as final
and conclusive evidence of the total amount of damages for the taking, including all of the items
listed in Section 1260.230 of the Code of Civil Procedure, regarding said property rights.
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C. CONDITION OF PROPERTY; RELEASE AND HOLD HARMLESS - The real
property interest described herein and in the Deed shall be sold and the City shall accept title to
and possession of the Easement Area "AS -IS, WHERE -IS, WITH ALL FAULTS. THE CITY
ACKNOWLEDGES FOR THE CITY AND THE CITY'S SUCCESSORS AND ASSIGNS
THAT THE CITY WILL BE ACQUIRING THE REAL PROPERTY INTEREST BASED
SOLELY UPON THE CITY'S OWN INVESTIGATION AND INSPECTION THEREOF.
Grantor has not made, and the City acknowledges that Grantor has not made, any warranty,
certification, or representation, express or implied, written or oral, statutory or otherwise,
concerning the Easement Area, or any portion thereof. Without limiting the generality of the
foregoing, Grantor has not made, and the City acknowledges that Grantor has not made, any
warranty, certification, or representation related to: (i) the condition of title to the Easement
Area; (ii) the nature, physical condition or any other aspect of the Easement Area; (iii) the
existence of hazardous materials (as defined under federal, state, and local laws, ordinances or
regulations) in, on, about, under or affecting the Easement Area; (iv) the compliance of the
property with any federal, state or local laws, ordinances, statutes, rules, codes or regulations
(including, without limitation, any environmental laws or any zoning codes); (v) the size,
dimensions or square footage of the Easement Area; or (vi) the fitness of the Easement Area for
any particular purpose (including without limitation the current use thereof).
D. ARTICLE HEADINGS - Article headings in this Agreement are for convenience
only and are not intended to be used in interpreting or construing the terms, covenants and
conditions of this Agreement.
E. COUNTERPARTS - This Agreement may be executed in counterparts, each of which
so executed shall, irrespective of the date of its execution and delivery, be deemed an original,
and all such counterparts together shall constitute one and the same document.
F. SUCCESSORS AND ASSIGNS - This Agreement shall apply to and bind the heirs,
executors, administrators, assigns and successors of the parties hereto.
G. ELECTRONIC & FACSIMILE SIGNATURES — In the event that the parties hereto
utilize facsimile and/or electronic documents which include signatures, such documents shall be
accepted as if they bore original signatures, provided that documents bearing ORIGINAL
SIGNATURES are provided following transmittal of the facsimile or electronic signature, except
that funds shall not be released upon a facsimile or electronic signature nor shall facsimile or
electronically signed documents be accepted for recordation by the Clerk Recorder of the County
of San Luis Obispo.
H. NOTICES - All notices shall be in writing, addressed as set forth below, and deposited
in the U.S. Mail, postage prepaid. Any party may change its address for future notices by
complying with the provisions of this paragraph.
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GRANTOR'S MAILING ADDRESS:
Corporation of the Presiding Bishop of the
Church of Jesus Christ of Latter-day Saints
50 East North Temple, 12th Floor
Salt Lake City, Utah 84150
Attention: Real Estate Services Division
Ref: Property No. 546-2398
Facsimile: (801) 240-2913
CITY'S MAILING ADDRESS:
City of San Luis Obispo
Public Works Department
919 Palm Street
San Luis Obispo, CA 93401
I. COMPLETE UNDERSTANDING - This Agreement constitutes the entire
understanding between the parties with respect to the subject matter hereof, superseding all
negotiations, prior discussions, and preliminary agreements or understandings, written or oral.
This Agreement may not be amended except in writing by the parties hereto or their successors
or assigns.
J. CITY COUNCIL APPROVAL - This Agreement is subject to and conditioned upon
approval and ratification by the San Luis Obispo City Council. This Agreement is not binding
upon the City until executed by the appropriate City official(s) acting in their authorized
capacity.
K. SETTLEMENT PROPOSAL - This Agreement represents Grantor's settlement
proposal and is expressly subject to and contingent upon City's acceptance and approval.
No Obligation Other Than Those Set Forth Herein Will Be Recognized.
GRANTOR:
Corporation of the Presiding Bishop of the
Church of Jesus Christ of Latter -Day Saints, a Utah corporation sole
/kl',By: _ ' Date: to —;Zs– ( $
Terry F Zudd
Title: AUTHORIZED AGENT
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City of SLO/LDS Church/Agreement
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CITY OF SAN LUIS OBISPO,
A municipal cvrporatioii and cii� t� r city
1
M.
Harmon,
ATTEST:
B•
City Clerk
IC
AS TO FORM:
�Iristine Dietrick
y of San Luis Obispo, Attorney
APN: 052-162-025
Rev. 2018-08-27
Date:
APPROVED AS TO CONTENT:
By:
Adam Fukushima
Active Transportation Manager
City of San Luis Obispo
City of SLO/LDS Church/Agreement
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