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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
_______________________
_______________________
_______________________
_______________________
(Space Above For Recorder's Use)
COVENANTS, CONDITIONS, RESTRICTIONS AND
EASEMENT AGREEMENT
THIS COVENANTS, CONDITIONS, RESTRICTIONS AND EASEMENT
AGREEMENT (this “Agreement”) is dated for reference purposes only as of [______________, 2025], by CITY OF MENIFEE, a California municipal corporation (“City”), and Faith Lutheran Church of Sun City, California, a California religious nonprofit corporation (“Faith Lutheran”).
R E C I T A L S
A. Faith Lutheran is the owner of certain real property situated in the City of Menifee, County of Riverside (the “County”), State of California, as more particularly described as; Lot 176 of Tract 3424, Filed with the Riverside County California Recorder on July 5, 1962.
B. The City seeks to purchase in fee the Park Site, as depicted in Exhibit “A,” subject to covenants and easements recorded against the Church Site, also depicted in Exhibit “A ,” (collectively referred to herein as the “Sites” and individually as a “Site”).
C. Faith Lutheran intends to sell or otherwise convey the Park Site as shown on Exhibit “A” to the City.
D. As a condition of acquisition of the Park Site, the City requires and Faith Lutheran desires to grant certain ingress, egress, maintenance, and emergency access easements over certain portions of the Church Site (collectively, the “Easement Areas”) for the benefit of and appurtenant to the Park Site (collectively, the “ Easements”), as further described in Section 1 of this Agreement, which shall constitute servitudes upon the Church Site in favor of the Park Site and the present and future record owners of fee simple title to the Church Site or any portion thereof, for the purpose of developing, improving, enhancing and protecting the value and desirability of the Park Site as public open space. The Easements and the covenants set forth in this Agreement shall run with the land and be binding upon each of the successors in interest to Faith Lutheran as the Owner of the Church Site and inure to the benefit of each of the successors in interest to the City as the Owner of the Park Site (each Faith Lutheran and the City an “Owner”; collectively, the “Owners”).
NOW, THEREFORE, incorporating the foregoing recitals, and for other fair and valuable consideration, the receipt and adequacy of which is hereby acknowledged, Faith Lutheran hereby agrees and declares as follows:
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1. Grant of Easement Over Faith Lutheran Site. Faith Lutheran hereby grants to the City, its representatives, agents, employees, and contractors, the following perpetual, mutual, non-exclusive Easements in, on, and over the Church Site for the benefit of and appurtenant to the Park Site, for the following purposes:
a. an easement (the “Maintenance and Emergency Access Easement”) in, on, over, under, across and through the Church Site for the purpose of maintaining the Park Site or any easements granted by Faith Lutheran to the City related to the Park Site or the Church Site as depicted on Exhibit “ A” attached hereto and incorporated herein by reference. The Church Site shall be open and available for access by emergency vehicles to the Park Site at all times.
2. Maintenance of Easement Areas and Related Improvements . Faith Lutheran shall, at its sole cost and expense, maintain all Easement Areas on the Church Site (or portions thereof) so as to keep the Easement Areas in good condition and repair pursuant to the terms of this Agreement and pursuant to all requirements of the applicable governing authorities.
3. City Covenants. The City hereby agrees to the following covenants, conditions and restrictions on the Park Site development and maintenance, to ensure the original intent of the Park Site is maintained for the benefit of both users of the Park Site and those with proper ty adjoining the Park Site.
a. Wrought iron or similar fencing along the property line separating the Sites which permits clear sight lines between the Sites.
b. No restroom facilities, other than water stations, fountains, or similar water features.
c. No playgrounds, related equipment, sports fields, or similar installations. d. No publicly accessible electrical outlets.
e. Limited hard surfaces to discourage skateboarding or similar activities. f. Seating areas designed to discourage illegal activities. g. City to remove existing cypress trees at southern end of the Park Site. h. City to remove existing trees on the eastern end of the Church Site. i. The Park Site will be maintained according to City standards. j. Security for the Park Site shall be provided in a manner consistent with City standards.
k. The Park Site shall be deed restricted to be parkland in perpetuity unless otherwise agreed to in writing by Faith Lutheran and the California Natural Resources Agency.
4. Performance of Work by the Owners . While on the Church Site, the City will comply with and cause all of its employees, consultants, contractors, agents, and representatives 2731/031858-2007
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to comply with all applicable laws and governmental regulations and the conditions of approval applicable to the Church Site. The City agrees to return areas used by them on the Park Site or Church Site, including for maintenance and construction, to the Park Site or Church Site’s original condition. Faith Lutheran hereby covenants not to unreasonably interfere with the business conducted on the Easements at any time during the City’s use of the Easements. The City hereby covenants not to unreasonably interfere with the business conducted on the Church Site at any time during Faith Lutheran’s use of the Church Site.
5. Retained Rights of Owners. Faith Lutheran shall retain all rights in the Church Site which are not inconsistent with the Easements granted herein, including, but not limited to: (a) the right to make any repairs, alterations , or improvements to the Easement Areas on the portion of the Church Site or any improvements thereon as Faith Lutheran reasonably deems appropriate from time to time that do not unreasonably interfere with the use of the Easement Areas as permitted pursuant to this Agreement; and (b) the right to alter the location of the Easement Areas on the Church Site as Faith Lutheran reasonably deems appropriate from time to time , provided such alterations do not materially and adversely affect the City’s rights to the Easements benefitting the Park Site. The City shall retain all rights in the Park Site which are not inconsistent with the Easements granted herein, including, but not limited to: (a) the right to make any repairs, alterations, or improvements to the Park Site or any improvements thereon as the City reasonably deems appropriate from time to time that do not unreasonably interfere with the use of the Easement Areas on the Church Site as permitted pursuant to this Agreement ; and (b) the right to alter the Park Site as the City reasonably deems appropriate from time to time , provided such alterations do not materially and adversely affect Faith Lutheran’s rights to the Church Site.
6. Insurance. During any period that the City or its employees, consultants, contractors, agents, licensees, invitees, or representatives enter upon the Easement Areas, the City, at its sole cost and expense, shall keep and maintain commercial general liability insurance protecting and indemnifying itself and Faith Lutheran against any and all claims for damages to persons or property or for loss of life or of property arising out of the use of the Easement Areas by the City and its employees, consultants, contractors, agents, licensees, invitees, or representatives such insurance to be in commercially reasonable amounts per occurrence and in no event less than $1,000,000 million per occurrence. Any insurance provided for in this Section shall be effected under standard form policies issued by insurers of recognized r esponsibility, authorized to do business in the State of California. The policy of insurance shall name the City as an insured, and shall name Faith Lutheran as an additional insured. Executed copies of such policies of insurance or certificates thereof shall be delivered to Faith Lutheran following the execution of this Agreement and thereafter at least thirty (30) days before the expiration of the term of each such policy. The City waives any rights it may have against Faith Lutheran on account of any loss or damage occasioned to the Church Site to the extent of the insurance coverage therefore, and the City , on behalf of its respective insurance companies insuring its property against any such loss , waives any right of subrogation that it may have against Faith Lutheran .
Nothing in this Section shall limit the liability of the City for any matter to the amount of any insurance coverage maintained or otherwise.
7. Indemnification. The City hereby agrees to indemnify, protect, save, defend, and hold Faith Lutheran harmless from any and all loss, damage, liability, claims, actions, procedures, cost, or expense, including court costs and reasonable attorneys’ fees, which Faith Lutheran may sustain, incur or become liable for, including loss of or damage to property or injury to or death of 2731/031858-2007
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persons and fines arising in any manner out of or in connection with the City ’s: (i) use of the Easements and the Easement Areas by the City, its employees, officers, agents, invitees, licensees, representatives, consultants, or contractors; (ii) the performance by the City of the terms, covenants, or conditions contained herein to be performed by the City ; or (iii) the negligence or willful misconduct of the City, its employees, officers, agents, invitees, licensees, representatives, consultants, or contractors in, on, or about the Easements and the Easement Areas.
8. Breach Shall Not Permit Termination; Self-Help. No breach of this Agreement shall entitle any Owner subject to this Agreement to cancel, rescind, or otherwise terminate this Agreement, but such limitation shall not affect in any manner any other rights or remedies which such Owner may have hereunder by reason of any breach of this Agreement. If any Owner breaches any of its obligations under this Agreement (the “Defaulting Owner”), any other Owner (the “Curing Owner”) shall have a right to any and all rights and remedies available at law or in equity other than the right to terminate this Agreement or the Easements granted herein, including without limitation, damages, injunctive relief, specific performance, or the right, but not the obligation, to cure such Defaulting Owner’s breach if upon at least thirty (30) days’ prior written notice, that if the nature of the breach is such that more than thirty (30) days are reasonably required for its cure, then the Defaulting Owner shall not be deemed to be in default if it commences such cure within said thirty (30) day period and thereafter diligently pursues such cure to completion (except in the case of any dangerous condition or emergency, in which case no notice shall be required) to perform or cause to be performed such obligations on behalf and at the expense of such Defaulting Owner. In the event of a breach, the Curing Owner’s costs and expenses incurred with respect thereto shall, upon demand, be paid for by such Defa ulting Owner, together with an administrative fee of ten percent (10%) of such costs and expenses. The performance by the Curing Owner of any such obligation shall not constitute a release or waiver of any of the Defaulting Owner’s obligations under this Agreement or any of the Curing Owner’s other rights or remedies.
9. Late Payments. If all or any portion of any payment to be paid under this Agreement is not paid when due, the same shall be deemed delinquent, and, if not paid within thirty (30) days of receipt of a written notice of such delinquency, the amount thereof shall bear interest thereafter at the rate of ten percent (10%) per annum until paid.
10. Mortgage Protection. Any breach of any of said covenants or restrictions, however, shall not defeat or render invalid the lien of any mortgage or deed of trust (in each case, a “Mortgage”) made in good faith for value, but such covenants or restrictions shall be binding upon and effective against the owner of any of said property or any portion thereof whose title thereto is acquired by foreclosure, trustee sale, or otherwise.
11. Successors and Assigns; Covenants Running With the Land. The rights and obligations of the Owners hereunder shall constitute covenants, benefits, and burdens which run with the land, and which shall be binding upon, and inure to the benefit of, the successors and assigns of each Owner hereto as the owners of the Sites. Each Owner shall, from and after the transfer of all or a portion of the real property owned by that Owner, which is subject to the terms hereof, be released from all obligations hereunder which accrue with respect to the real property so transferred after the date of such transfer.
a. Should Faith Lutheran seek to sell the Church Site, prior to the close of escrow of the sale of the Church Site, Faith Lutheran shall provide the City with a notice 2731/031858-2007
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signed by the third- party buyer indicating that the buyer is aware of this Agreement and that the rights and obligations hereunder run with the land. b. Should the City seek to sell the Park Site, prior to the close of escrow of the sale of the Park Site, the City shall provide Faith Lutheran with a notice signed by the third-party buyer indicating that the buyer is aware of this Agreement and that the rights and obligations hereunder run with the land.
12. Notices. Any notice permitted or required to be delivered as provided for herein shall be in writing and may be delivered either personally or by certified mail, return receipt requested. If delivery is made by certified or registered mail, it shall be deemed to have been delivered seventy-two (72) hours after a copy of same has been deposited in the United States mail, postage prepaid, addressed to:
City of Menifee
Attn: Community Services Director
29844 Haun Road
City of Menifee, CA 92586
Faith Lutheran Church of Sun City, California
Attn: Congregational President
28200 Portsmouth Dr
Menifee, CA 92586
13. Modification. This Agreement contains the entire agreement between the parties and shall be amended, modified, or supplemented only by recording an instrument duly executed and acknowledged by all the Owners hereto and recorded in the Official Records of the County of Riverside, California. This Agreement may not be amended or terminated by the parties without the express written permission of both parties . This Agreement inures to the benefit of the City.
The City may, but is not obligated to enforce its provisions.
14. Further Instruments and Assurances. At any time requested by an Owner, and from time to time thereafter, the other Owner shall, without the need of further consideration, execute and deliver such instruments and documents and take such other actions as may be reasonably requested by such Owner to carry out the purpose and intent of this Agreement, provided that the other Owner shall not be required to incur any costs or expenses in connection with such cooperation.
15. Attorneys’ Fees. In the event that a dispute arises between the parties under this Agreement, the prevailing party in such dispute shall be entitled to recover from the other party its reasonable attorneys’ fees and out-of-pocket costs.
16. Severability. If any provision of this Agreement, or the application thereof to any party or to any person or circumstance, shall be held invalid, void, or illegal, the remaining provisions hereof and the application of such provisions nevertheless shall remain in full force and effect and shall not be affected thereby.
17. Integration; Governing Law. This Agreement shall be construed in accordance with its fair meaning and as if prepared by both Owners hereto. This Agreement shall be construed in accordance with the laws of the State of California. Venue shall be in the Superior Court of 2731/031858-2007
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California, County of Riverside. Titles and captions are for convenience only and shall not constitute a portion of this Agreement.
18. Counterparts; Exhibits . This Agreement may be executed in any number of counterparts which, when taken together, shall constitute a fully executed original. All exhibits attached hereto and referred to herein are expressly incorporated herein as though set forth at length.
19. Authority. The persons executing this Agreement on behalf of each of the parties hereto represent and warrant that (i) such party is duly organized and existing; (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party; (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement; and (iv) that entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. This Agreement shall be binding upon the heirs, executors, administrators, successors, and assigns of the parties.
[Signature Page Follows]
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I N WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above.
FAITH LUTHERAN CHURCH OF SUN CITY,
CALIFORNIA, a Religious Nonprofit
Corporation in the State of California
B
y: _______________________________
Name: Diane Swarts
Its: Congregational President
CITY O F M ENIFEE, a Municipal
Corporation in the State of California
By:
______________________________
Armando Villa, City Manager
ATTEST:
_________________________________
Stephanie Roseen, City Clerk, City of
Menifee
APPROVED AS TO FORM:
_________________________________
Jeffrey T. Melching, City Attorney
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A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
County of )
On , before me, , Notary Public,
(here insert name and title of the officer)
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/th eir 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 (seal)
A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
County of )
On , before me, , Notary Public,
(here insert name and title of the officer)
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 (seal)
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