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HomeMy WebLinkAboutSUPPTL INFO - Villa @ Palm Desert Hfl�SO� SCOTT C.SMITH B�I D G E11 PARTNER DIRECT�IAL 415 995 5892 , DIRECT FAX 415 995 3493 _ m p n p � p\ REPLY TO SAN FRANCISCO � � T ' III i{ � u U E MAIL ssmith ahansonbridgetf.com - . . � •• � � � � O � March 26, 2.007 ;"`- , _ "'_,.? R � � ��<<P V[A EXPRESS DELIVERY - City of Palm Desert Palm Desert }-Iousing Authority 73-510 Fred Waring Drive Palm Desert, CA 92260 Attn: Janet Moore Re: Affordable Senior Housing Development Agreement (the "Develonment A�reement") dated as of July 15, 1988 between The City of Palm Desert and Sanborn and Rylee Developers (City of Palm Desert Ordinance No. 461), as amended by that certain Senior Housing Development Agreement Amendment (the "Amendment") dated as of February 28, 1991 between The City of Palm Uesert and Palm Desert Retirement Villas Ltd. (City of Palm Desert Ordinance No. 635) File No. 18818.1 Ucar Ms. Moorc: VVe are local counsel to Atria Senior Living Group, Inc. ("ASL(J"), the current ow�ner oi� thc property (the `'Property") subject t the above-captioned Development Agreement and flmendment. ASLG will be assigning ownership of the Property to its wholly-owned subsidiar}�. Atria Palm Desert, LLC, a Delaware limited liability company. Pursuant to the terms of the Uc��elopment Agreement, as amended, the rights of the "Property Owner" thereunder may not be transferred without first obtaining the written consent of the City of�Palm Desert. I:nclosed for your review and execution is a Consent to Assignment which will allow Atria Yalm Desert, LLC (or an affiliate) to acquire the rights of the "Property Owner" under the De��elopment Agreement, as amended. If the foregoing is acceptable to you, please arrange to have the enclosed Consent executed. Upon execution, please fax or PDF a copy of the executed Consent to my attention, with the original to follow via overnight mail. As our client is sceking to close this transaction as soon as possible, we appreciate your attention to this matter. LAW OFFICES W W W HANSONBRIDGETT.COM SAN FRANCISCO NORTH BAY SACRAMENTO 425 MARKET STRtEi WOOI�ISLAND 980 NINTH STREE� 26'"FLOOR 80 E.SIR FRANCIS DRAKE BLVD.•SUITE 3E SUIT6 I500 SAN FRANGSCO•CALIFORNIA 94105 l ARKSPUR•CALIfORNIA 94439 SnCRAMtNTO•UUFORNIA 95814 TELEPHONF 415.7/7-3200 TELEPHONE 415•925�8400 lFLEPHONE 916•442•3333 FACSIMILE 415•541•9366 FACSIMILE 415•925•6909 FACSIMI�E 916•442.23a8 Sf�ri�ilHANSONBRIDGETTCOM NOR7HBAY@HANSONBRIDGETT.COM SAC�rilHANSONflRIUGElT.COM 13097>S_I City of Palm Desert March 26, 2007 Page 2 If you ha��e any questions, please call me. Sincerely, G Scott C. Smith I:nclosurc "I�o ensure compliance with requirements imposed by the IRS, we inform you that any tax advice contained in this communication (including any attachments) was not intended or written to be uscd, and cannot be used, for the purpose of(i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. 130y7�5 l RECORDING REQUESTED BY, AND WHEN RECORDED, MAIL TO: City Clerk's Office City of Palm Desert 73-510 Fred Waring Drive Palm Desert, CA 92260-2578 FOR THE BENEFIT OF THE CITY OF PALM DESERT - NO FEE - 6103 OF THE GOVT. CODE (This Space for Recorder's Use Only) Recording Requested for CONSENT TO ASSIGNMENT ATRIA PALM DESERT, LLC (Title of Document) CONSENT TO ASSIGNMENT THIS CONSENT TO ASSIGNMENT (this "Consent") is made this day of , 2007, by THE CITY OF PALM DESERT (the "C�"), a municipal corporation organized and existing under the laws of the state of California, having an address at 73- 510 Fred Waring Drive, Palm Desert, California 92260. WHEREAS, as of the date hereof, the City is a party to that certain Affordable Senior Housing Development Agreement (the "Development Agreement") dated as of July 15, 1988 between The City of Palm Desert and Sanborn and Rylee Developers (City of Palm Desert Ordinance No. 461), as amended by that certain Senior Housing Development Agreement Amendment (the "Amendment") dated as of February 28, 1991 between The City of Palm Desert and Palm Desert Retirement Villas Ltd. (City of Palm Desert Ordinance No. 635), with respect to that certain real property located within the city of Palm Desert, California, which property is described on Exhibit A attached hereto and made a part hereof (together with developments constructed thereon, the "Property"); WHEREAS, as of the date hereof, Atria Senior Living Group, Inc., a Delaware corporation ("ASLG"), an affiliate of ARV Assisted Living, Inc., is the owner of the Property, and is the sole member of Atria Palm Desert, LLC, a Delaware limited liability company ("APD"); WHEREAS, ASLG desires to transfer the Property to APD, and allow APD to obtain the benefits of the Development Agreement and the Amendment; WHEREAS, pursuant to Section 4 of the Amendment, the rights of"Property Owner" under the Development Agreement and the Amendment may not be transferred or assigned without first obtaining the written consent of the City; and WHEREAS, the City is willing to grant its consent to the transfer or assignment to APD (or any affiliate thereof) of the "Property Owner's" rights under the Development Agreement and the Amendment. NOW, THEREFORE, in consideration of the foregoing and for ten dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City hereby consents to the transfer or assignment to APD (or any affiliate thereof) of the "Property Owner's" rights under the Development Agreement and the Amendment. THE CITY OF PALM DESERT ATTEST: By: Name: Richard S. Kel1y Name: Rachelle D. Klassen Title: Mayor Title: City Clerk . OFtDIl� I�7. 635 � A ORDIi. _.(� OF � CITY OC7IJNCIL OF THE C t OF PALM DESERT, CALIFORNIA, APPROVING AN AMENDNN�NNT TO AN AFFORDABLE SENIOR IiOUSII� DE.VQiOPN�Nr AGft� REL�P►TING TO AFFORDABLE I-FDI)SIIVG R�7Q[TIRII�TIS. CASE ND. DA 86-1 A1�IDI�ID�TT Wi-�tEA�, the City (�xu�cil of the City of Palm Dese.rt, California, did � the 28th day of February, 1991, hold a duly r�oticed public heariz�g to consider the request by PALM DESERT RETIRII�IT VILLAS LTD. for approval of DA 86-1 ORD 461 Ame,ndmant. WHEREAS, at said public hearir�g, upon hearing and ooc�.siderirr3 all testi.moriy and argu�ne.nts, if arYy, of all interested parsoris desirirr3 to be heard, said city oau�cil did find the follvwiryg facts and rea.son,s to exist to justify grantir�g ap�p�oval of said amendment: 1. 'I'he pi�aposed amendnent is cazsistent with i�e inte�t and purpose of the Seni� w�arlay zoning r�equiremecits aryd the General Plan Hou.siryg Ele[nerit. NCJW, T!-�REFORE, BE IT ORDII�NCm by the City Oamcil of the City of Palm DeseY-t, California, as follaws: 1. That the aUove recitations are true and oo�z�ect ar�d ooc�stitute the firxiir�gs of the oatmission in this ca.se. 2. That apFmwal of D�A 86-1 a�nen3nent exhibit "A" is hereby appraved. 3. The City Cle�rk of the City of Palm De�ert, Califo�nia, is hereby _ directed to publish this oz�dinance in the Palm Desert Post, a newspape.r of ge�neral circulation, publist�ed and c�rculated in the City of Plam Desert, California, and shall be in full force ar�d effect thirty (30) days after its adoption. PASSID, APPROVID and ADOPTID at a regular meeting of the PaLn Dese,rt City Cau'�cil, held on this 28th day of Feb=vaiy, 1991, by the follaw�ng wte, to wit: AYES: BF�V5�1, C�tITES, F�GLY, WILS�V, SNYDER I�ES: Idl7d�iE ABSIId'Y': M�IdE ABSTAIN: Mai� � � i�� H. SNYDII�, .. �T�'FST: / %%;/' � � r ��.�' ��, 'i ��'� /Y/_..� ..� % SHEILA R. GILL�GAN, Cit��`ler}t G�Il�F�I�£ PU. 635 FXF�IT "A" SF�IIQt KxSII� AQi�IIJ� 1�II�FNP BEI�1 ZI� QTY OF PAIM DF�T AI�D PAIM DESF�tT RETIR�TP VII�I,AS L�9 THIS AGRF�+lII�T is entered into this 28th day of Februaty, 1991, between Palm Dese,rt Retirgnent Villas LTD, (hexeinafter "Pro�perty Owner") and the City of Palm Desert, (hereinafter "City"), a rtauZicipal oo�poration arganized an�d existir�g uix3er t�e laws of the state of Califo�r�i.a. R E C I T A L S 'i'nis Agreemeizt is predicated upon the following facts: A. Gavp.xrn�ent Cbc3e Sectirns 65864-65869.5 autt»rize the City to enter . into bir�dtr�g c3evelo�pme�t agreements witn per�sons r�avirx� legal or equitable interests in x�eal propart.y for tris de�velo�pmezit of such praperty; . B. Praperty Owr�er is aar�er of oaz-tain real p�operty located with the City of PaLn DesPrrt, Califo�nia, c3evela��ed as 77 wzit oongz�egate care senior Y�.Sin9 Pr�o�ect (hereinafter ��p�roject��) p�csuant to a dev�aiq�me�zt agr��e►nt, City of PaLn Desert Ordinance No. 461. C. Sectia�s 1, 2, and 3 of ORD. 461 requires the p�operty c�wnar to prc7vide 15 units affordable by low and rrodexate inca��e units a�site or 20 lvw and moderate ir�ie affordable tu�its offsite by Marc,h 1, 1991. D. PznQerty Owr�+x has r�equested the city t�o oon.sider anea�ding ORD 461 in accordarx�,e with Go�vexime�t Code Section 65864-65869.5 specifying an alternative method for satisfying the 15 unit affordable housing requirement. E. 'I�e City Cauicil of City has fau�d that the developneazt agreat�ent amer�nent is oosLsistent with the general plan (and the Palma Village 2 C[�72vA1� AA. 635 Specific Plan), and setli.or overlay; ar�d F. 4n February 28, 1991 the City Cauivcil of The City of Palm Desert adopted Ordinance No. 635 approving the develapnent agreecn�nt amer�nent with property Owner and the ordinarx�,e thereafter toak effect on Februaiy 28, 1991. NC)W, Tf�REFORE, tt�e pa�rties agr�ee: 1. Definitions. In this Agreecnent, �l.ess the cflntext othezwise requires: (a) "City" is the Gity of Palm Desert. � (b) ��Pro�ect�� is the t3gvelo�pnent canstnicted City pursuant to F��ecise Plan 85-39 and DA 86-1 ORD 461. (c) "property Owne,r" mear�s the pes�son havir�g a legal or equitable interest in tne real gro�per'ty as d�ibed in paragraph (3) and ir�cludes the Property owr�er's sv�or in intere�t; (d) ��Real pac�o,pez.ty�� is the real p�n�perty referx�ed to in Paz'a9r'aph (2)• (e) "Useful Life of the Pro�ect" is the greatar of thirty (30) years ar the pe.riod of time which the Project r�emains habitable, with reasOnable Carr� and maintec�an�o6, ass deteYmis�d by City. (f) "Seazio� Citizen Household" means a maximum twr� person haLse�Y�old of wfiich all members are 62 yea=s of age ar older. 2. Deecriptian of real p�apert.y. The real p�+apez-ty whi.ch is the subject of this Agreecremt is deac�ibed in E�chi.bit A. 3. Znterest of PY�erty Owc�er. ProQertY Clwner �ts that he has a full legal and equitable interest in the real p�+operty and that all other j.�xsons holding legal o�' Hquttable interes'ts �n ttle p��opet'ty are to be boui�d by the �.nt. 3 �Il�NCE I�U. 635 4. Assigrn�zt. The rights of the Pmpe.rty Owr�ex Lu�der this AgregnP_nt may not be transfen�ed or assigned Lu�less the writtp.n oa�sent of the City if first obtained. 5. Binding effect of Agreement. The txu�ien.s of this Agreement bis�d and the bel7efits of the Agree�nent inure to the successors in interest to tt�e parties to it. 6. Relatioc�.ship of parties. It is understood that the ooritractual relatica�.ship betw�ee,n the City and Property Own�er is such that the awn�er is an irx3epend�.nt oocitractor and r�ot the agent of the City. 7. Agx�ecment by Property Ownez� and City. In place of the r+equiran�nts c3escribed in secticns 1, 2, and 3 of exhibit A of ORD 491 the followir�g program shall be deemed tn satisfy the 15 unit low/moderate irx�ome hau.sisx,� requiremeazts of chapter 25.52 of the PaLn De�ert zontng ox�dirsanoe. a. Ten (10) units of the 15 unit require�cient shall be satisfied by an in-lieu payment of $10,000 per �uzit totaling $100,000 to the city to be u..�ed for the puipose of pzr�vitlir�g low inoome seiztor Yxx�.sirx3. Payme��t shall be made to the city on or before Mair,h 1, 1991. b. Five tmits (herei[�after SSI tmits) shall be �erved beg�.ruzing Mazr.h 1, 1991 within the pro�ect fo� occupancy by aged recipients of Supplemaczted Security Inoaime (SSI) as by �e United States Social Security At�ninistratiaz. The maximtm charge fos full =nom, board and care seivices as offereci by thH p�o�ect owr�ar to SSI recipiea�t shall �r�ot exC.eed the maxirta,mi applicable SSI berysfit less $50.00 per pet'son per m�th. For 1991, the maxiimun c,harge,s shall be: Sir�gle Occupanc,y - S659Jmcnth. Dauble Occ.�upar�cy - $1318/morith. 4 O�Il�NCE ND. 635 The.se rates may be ad�usted according to annual cast of living increases granted to SSI recipients by Social Sec�,irity Administraticn. c. A maxirtaan of two persais may a-,cupy each of the five units. d. SSI recipients shall receive identical basic aongregate care services avai.lable to othpx residents of the pro�ect. e. Property Owner or its assigr�ed management agent shall be respcx�sible for detexminicx� the eligibility of prospectiv�e SSI tenants. f. Property Owner shall mt distximtnate cn the basis of race, color or creed, sex, or national origin. g. Property Owryer or its s� in interest shal l re.,sesv�e the fiv�e (5) SSI units as set forth in this Agreanent for the Useful Life of ttle Fro�ect and P%j ect awn�er shall r�ot sell or othe=wise char�ge the use of the Project wit.haut prior written oorLsent of city. h. Age limits. The mirii[rn,IIn age far' all Prn�ect oocupants shall be 62 y�ears old. 8. Char�ge in p�o�ect. No chaix,�e, modtf ication, re�vision or alteration may be made in the appz�c�v�ed p�ecise plan without re�view ar�d aPA�val bY t.tr�se agen�cies of the Gity app�wir�g the plan in the first instance. A ctiar�ge, modificatial, revisian os alteratiai in the app��aved p��ecise plan is mt effective until ths parties �c�end this Agre�nent to incaiporate it. 9. Hold Harmless. Propez-ty Owr�ar agz+ees to and shall h41d the City. its officer's, ag�ts, e�layees and representatives harmless fran liability for daznage or claims fos damage fo� pei5oi�a1 in,jury ir�cludirx,� death and claims for property dart�age which may arise from the direct or ir�direct aperations of the Frvperty Owr�ar or tliose of his oontracto�, subaaitractor, a9eTlt, emPlaY'ee o�' ot2�' P�'� ��9 rn his behalf which relate to the pro�ect, property pwr�,e,r agrees tio ar�d shall defend the City and its 5 Q�II�IdI"� I�D. 635 offiCers, agents, �nplayees ar�d regre.�entatives from actions for damages cau_�ed or alleged to have been caused by reason of Property Owner's activities in �cti� with the pro�ect. This h41d harmless agr�eement applies to all damages and claims for damages suffered or alleged to have been suffered by reasaz of the operatior�s referr�ed to in this Paz'ag�'aph, r'e9ardless of whethar � not the �tY P�P��, S�PPlied, or app��oved plans o� s�ecificatirns o� both for tt�e Project. Property Own�r further agi�es to irY3e�ify, hold haimless, pay all oasts and pr�vide a deferzse for City in any action c,lzallea�gir�g the validity of the Developnent Agz�eanent. 10. Periodic Review of ('Jonq�lianoe With Ag•reement. (a) City Planning Commission shall review this Development Agreement whenever sub�tantial evidearyce exists to indicate a poesible breach of the texms of this Agreement. (b) At least C�[x� eaCh year, Pzoperty Owr�r shall denons�trate g�od faith crnq�lian�ce with the te,rnis of this Develapneczt Agreeme�t. Praperty Owryer agrees to funzish such svidenoe of c�od faith cart�liaTyce as City, in the exercise of its discretion, may require. City shall have the right tio audit the books and reoards of Property Owi�or's vost and ea�pense upaz request and at least aruwally. 11. AmerrYnent ar� Canr.ellation of Agreement. This Dev�ela�xnant Agre�zt may be ameaxied or car�c.elled �n whc�le � in part by mutual oorL�e�nt of the parties and in tt�e maru�er p�vided for in Gw�errniatzt GUde, sections 65868, 65867 ar�d 65867.5. 12. Enforcanent. Unless a�nended or canc,eiled as p�t7vided in Paz'agr'aPh 6 �E2DII�IGE ND. 635 11, this Development Agreement is enforceable by any party to it notwithstandir�g a chaix3e in th�e applicable general or s•pecific plan, zoniix�, subdivisian or bu.ilding regulations adopted by City which alter or amend the rules, regulations or policies governing permitted uses of the land, de.nsity, design, improvement aryd aanstruction staix�tYis and s�pecificatiori. 13. E�ents of default. Property Owner is in default �der this AgreemP.nt upon the happening of a�e or more of the follawir�g eveilts or cor�ditioa�.s: (a) If a wazz�anty, regx�e.sentatian or statement m2de or ftunished by propert,y Own�er to City is false or prvves to have been false in any material. respect wt�Z it was made; (b) A firxiitx3 and c3ete=mination by City made fol lowing a pe.riodic revie�w Luxier ttye ��e provided fa� in Gcnrernn�t C',ode, sectiaz 65865.1, that upai the basis of substantial eviderx�e Prope�rty Owr�ar has r�t oarq�lied in gc�od faith with ariy of the texms ar� oonditirns of this Agr�esnet-it. (c) PropertY Ownar�s failure to maintain the Real Pr�o�Qerty in substantially the same ooc�dition as it ax.isted on tt�e date that City issued the Certificate of OccuparY.y with r+espect to tha Pro�ect of the restore Pran�tly in c�ood ar�d wor}ananlike manr�ar atYy buildir�g which may be da�naged or c�est�'vYed• (d) Pznperty Owr�er's failure to appear in and defend arYy action or Pr'��T�4 P�p��9 to ef fect the rights o�r pawe=s of City �mder the tezms of this DevelaFinant Agree�nent, ar�d to pay all oos�t.s ar�d expenses, includirx,� attori�ey's fees in a rea.sonable sum, in any such action or Froceedin3 in which City may appear• 14. Procedure upoci default. If, as a result of pe.ric�dic review, or oth�ex review of this Ayre�ment, the Planning Cannission or City finds and 7 QRDII�IVCE NJ. 635 determines, ori the basis of substantial evide.nce, that Property Owner has not aact�lied with the terms or oonditicx�s of this Agregnezi�, the Ctmnissioaz shall r�tify tt�e Prapeity Owner or successor in interest as to the specific nature of rn���liarx;e, and c3�scribe the remedies required to achieve compliance. Property Owner has thirty (30) days upon receipt of r�otificatiaz to take remedial actions. If Pz�o�peYty Owr�ar fails to take remedial action within thirty (30) days, the Plann.ir�g Oannission of City shall reoanner�d to the City Cau�cil of City that this Developrnent Agreanent be modified, terminated, or that the recnedies set forth in this paragraph be exercised by t�e City. If the City Clxmcil of City concurs with the recommendation of the City's Planniryg Oatmission, the City Uo�u�cil may t[roclify this Det7�elOgnent Agreect�tt, terminate this Dgvelopneazt Agreanent, or may employ one or more of the remedies set f�ttz in this par�graph. prr�ceedir�gs before the City Ootu�il shall be by rntioed public hearing pursuant to Ct�apter 25.86 of the Nl�icipal c�x1e of the City of PaLn Desert. In the event af a default, City m3y ert�loy on or more of the follo�witx,� z�snedies, in its sole disrxetian: (i) atY maY Z�svOke all px�evious app�vvals, e�titlenterits arbd peitnits granted by the City to Propex�ty Owr�er with zgspect to this p�ject at�d tt�e sub,j ect Real Pmperty. (�) �tY �Y P�e all other legal or equitable remedies City may hav�e ur�ds�r California law or as set forth in this Develc�pme�zt AgreeR�nt and City shall be entitled to specific perforniar�c.e and enfom.ement of each and every term, oax�.itia� and oave.nant set forth herein. 15. D�nages upai c.anc,ellation, tezminatioci of Agx�xnent. In rn �vent shall ProQesty Ow�er be ea�titled to any d�nages against the City upon modification, termination of this De�velopment Ag•reement ar� exercise by Gity 8 C�DII�tJ� I�A. 635 of its rights under this Develognent AgreemPnt. 16. Attorneys fees and costs. If legal actioci by either party is brought because of breach of this Agreement or to enforce a pravision of this Agre�ient, the prevailing party is entitled to reasor�able attorney�s fees and court cost. 17. Notices. all notices required or provic�ed for under this Developne�it Agr�nent sh,all be in writirr� and delivered in perscti or sent by certified mail, postage prepaid. Notice required to be give bo City shall be a�ldressed as follaws: City of Palm Desert, 73-510 FY�ed Wariryg Drive, Palm Desert, California 92260 Notices required to be given to Property Owc�ar shall be adc�e.ssed as follaws: A Pa�'tY maY �e tY�e address by givir�g notice in writing to th�e other party and therefore notices shall be addressed and transmitted to the new addr'ess. 18. Rules of oal.�tnu:tiaz and miscellaneous tezms. (a) Tt�e s{�,tar incluc3es the plural; the masculine gender incluc3es tt�e fecnini.ne: "shall" is mandatn�y, ��may�� is peimissive. (b) If a part of this Agz�esne�t is held to be invalid, the rgnaindex of this Agr�nent is not affected. (c) If thare is m�re than a�e sigi�r of this Agreeme�nt their obligatiorls are joint and several. (d) The time limtts set forth in this Agre�nent may be extea�ded by �tual oo��sent of the paztie� in acoordance with �e P�ocec�u'es for acloQtion of an agr�ement. � 19. Duration of Agreane�rit. Thi.s Agreanent shall expire only upon total destruction of tY�e apartment pro�ect which is the sub�ect of this 9 Ot�� I�. 635 Develop[nent Agre�nPnt. 20. Ap�licable Law. this AgregnP.nt shall be aonstrued according to the laws of the State of California. 21. Severability. If any portion of this Agregrnnt is for any reason held to be unenforceable, such c3ete,rmination shall r�ot effect the validity of the z�naining portions. 22. Authority. Each of th�e parties he,reto ocxr�.nant and agx�es tha,t it has the legal capaaity t� enter into this Agre�t oontained herein, that each agree�rient is bindir�g upai that party and that this Agreement is executed by a �l.y authc�rized official actir�g in his official capacity. IN WIZT�'.SS Wf�RDOF this Develq.�ttPnt Agreement has been executed by the parties on the day and year first above writteri. A�v�ed 3s to fo�m: CITY OF PALM DES�t'P A MiuLicipal Coxporation BY� KAI�IDY I,� P,LLFI�I DePutY CitY Att�rneY Att;e.St: PALM DESII�T REI'IRFI�P VILLAS LTD BY: BY: STATE OF CALIF�NIA ) OOiUNPY OF RIVERSIDE ) On this day of , 1991, before me, a Notazy Public in and for said State, persoclally a,ppeared , }�own to me or proved to me cn the basis of satisfactory evidence to be the person who executed the within ins�an�.,nt an behalf of , and aGa�aaledged to me tt3at executed the s�ne. 10 ORDINANCE N0. 635 DEVELOPMENT AGREEMENT EXHIBIT "A" Lot 16 of Pelma Villege Groves, M.B. 20, Page 51