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AGREEMENT FOR EXCHANGE OF REAL PROPERTY AND JOINT
ESCROW INSTRUCTIONS
Assessor Parcel Numbers 329-050-049 and 331-150-027
City of Menifee, County of Riverside, State of California
By and Between
EASTERN MUNICIPAL WATER DISTRICT,
a public agency organized and existing under and by virtue of the Municipal Water District Law of 1911
and
CITY OF MENIFEE,
a California general law City
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This AGREEMENT FOR EXCHANGE OF REAL PROPERTY AND JOINT ESCROW INSTRUCTIONS (“Agreement”), is entered into as of _______________________, 202 6 (the “Effective Date” to be inserted by Escrow) by and between EASTERN MUNICIPAL WATER DISTRICT, a public agency organized and existing under and by virtue of the Municipal Water District Law of 1911 (“District”), and the CITY OF MENIFEE, a California general law City ("City").
RECITALS
The following recitals are a substantive part of this Agreement:
1. WHEREAS, City is the owner of Assessor Parcel Number 329 -050-049 and desires to convey that property described in Exhibit "A" of the Grant Deed attached hereto as Attachment "1" and incorporated herein by reference to District. ("City Parcel"); and
2. WHEREAS, District is the owner of Assessor Parcel Numbers 331 -150-027 and desires to convey that property described in Exhibit "A" of the Grant Deed attached hereto as Attachment "2" incorporated herein by reference to City. ("District Parcel").
3. WHEREAS, District also owns APN 331 -150-018 and 329- 141-005 (“Other District Parcels”); and
4. WHEREAS, District planned to construct its Matthews and Romoland Booster Facility (“Matthews and Romoland Project”) upon District Parcel and APN 331-150-018; and
5. WHEREAS, Ethanac Road , which fronts the Matthews and Romoland Project, will be widened and a new Highway 74/Ethanac transition will be constructed in the future (“Future Circulation Project”) per the City’s General Plan; and
6. WHEREAS, The City’s Future Circulation Project will impact the District’s Matthews and Romoland Project and both Parties agree its in the public’s best interest to relocate the Matthews and Romoland Project to avoid impacts with Future Circulation Project; and
7. WHEREAS, Parties have coordinated with each other , including advancing the property exchange considered herein, to mitigate such impacts; and
8. WHEREAS, District has awarded consultant contracts to redesign the Matthews and Romoland Project at the City Parcel. The redesign costs total approximately $395,000 (“Additional Design Costs”); and
9. WHEREAS, City will reimburse District for half of the Additional Design Costs at close of escrow for the property exchange; and
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10. WHEREAS, District is empowered to exchange real property, upon such terms and conditions as it finds acceptable, under California Water Code section 71690.
11. WHEREAS, the subject land exchange, pursuant to the terms of this Agreement, is in the best interests of the District and its customers, and in accord with the provisions of applicable state and local laws and requirements.
NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE MUTUAL PROMISES, COVENANTS AND CONDITIONS CONTAINED HEREIN, DISTRICT AND CITY AGREE AS FOLLOWS:
SECTION 1
PROPERTY EXCHANGE AND GENERAL RELEASE
1.0 Exchange. Subject to the terms and provisions of this Agreement, City agrees to convey the City Parcel to the District in exchange for the District Parcel and the District agrees to convey the District Parcel to City in exchange for the City Parcel. The conveyances include all right, title and interest in and to the City Parcel and the District Parcel, respectively. The approval by the Parties ' respective governing boards is a condition precedent to the recording of the grant deeds for and exchange of ownership and possession of the Parcels.
Additionally, the property exchange contemplated herein shall be contingent upon the District receiving California Environmental Quality Act ( CEQA) related approvals for the Matthews and Romoland Project.
1.1 Total Consideration. The total consideration to be received by City for the
conveyance of the City Parcel to the District c onsists of the District Parcel and the District's performance of the terms and conditions of this Agreement. The total consideration to be received by the District for the conveyance of the District Parcel to the City consists of the City Parcel and the City's performance of the terms and conditions of this Agreement.
Additionally, the City will reimburse District One Hundred and Ninety -Seven Thousand Five Hundred ($197,500) Dollars for the Additional Design Costs . Said payment from City to the District shall be made within 30 days of close of escrow of the subject exchange properties.
District will be responsible for and bear all costs and fees associated with the preparation and review of legal descriptions and plats for the District Parcel and City Parcel to attach to the grant deeds and each Party will pay its proportionate share of normal and cust omary escrow and title fees.
1.2 Full Compensation and General Release. City and District acknowledge and agree that the exchange of the District Parcel for the City Parcel constitutes full, complete, and all- inclusive consideration and compensation for any and all of their respective interests in the parcels being exchanged, and for any rights or obligations which exist or may arise out of, or in
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any way relate to, the exchange or acquisition of the Property. This includes, without limitation, any claims for severance damages, pre-condemnation damages, loss of business goodwill, costs, interest, attorneys’ fees, relocation assistance or benefits, moving expenses due or compensable under the relocation laws, or any other claim for compensation or other legal or equitable remedy of whatever kind or nature, tangible or intangible, direct or consequential, that either City or District, or any person or entity claiming by or through either of them, may have or assert against the other in connection with the acquisition or exchange of the Property.
District and City each releases and discharges the other party, its predecessors, successors and assigns and their respective officers, directors, employees, other representatives and shareholders, from any and all claims, demands, causes of action, obligations, and liabilities of every kind and nature whatsoever, or claims to have had, or now has, against the District or City , as applicable, which relates to or arises out of the exchange of the City Parcel and the District Parcel.
District and City each acknowledges and is aware of and familiar with the provisions of Section 1542 of the California Civil Code which provides as follows:
“A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”
(City's Initial) ______ (District's Initial) ______
SECTION 2
TITLE REVIEW AND INSPECTIONS
2.0 Conveyance of Good Title. The Parties shall convey title to the respective Parcels by grant deed, free and clear of all debts, liens, encumbrances, taxes, assessments, easements, restrictions, and rights and conditions of record or known to the conveying party, unless specifically allowed or permitted by the receiving party in writing.
2.1 Review of Title: Within five ( 15) days of the Effective Date of this Agreement, each Party shall provide the other with a current Preliminary Title Report (“Report”) with respect to its Parcel, together with copies of the instruments underlying all exceptions which are referred to in the Report, and, if possible, a color-coded map with plotted easements shown.
(a) Each Party is entitled to review and approve the Report and the underlying exceptions referred to in that Report for a period of twenty (20) business days following the date of delivery to Party of the Report.
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(b) Within that twenty (20) business -day period, each Party shall give written notice to the other Party (the “Title Exception Notice”) of (1) which title exceptions shown in the Report are acceptable to the Party (the “Acceptable Exceptions”); and (2) which exceptions are not acceptable to the Party (the “Non-acceptable Exceptions”).
(c) Within twenty (20) business days after a Party has been given the Title Exception Notice, that Party shall either (1) remove the Non-acceptable Exceptions; (2) give the other Party written assurances satisfactory to that Party that the Non-acceptable Exceptions which are not so removed during such period will be removed before or concurrent with the recording of the grant deeds, at the removing Party’s expense; or (3) at the Party’s option upon written notice to the other Party, accept cancellation of this Agreement.
(d)
Notwithstanding the foregoing, neither Party is required to give notice of “Non-acceptable Exceptions” for removal of debts, liens to secure debts, delinquent taxes, assessments due as of the recording date, or other financing or monetary encumbrances upon either of the Parcels, it being expressly understood and agreed that such items are Non-acceptable Exceptions that must be removed from title before or concurrent with the recording of the grant deeds, at the removing Party’s expense.
2.2 Title Insurance. At its own expense, either Party may obtain title insurance for the parcel it has or will receive under this Agreement. The other Party shall reasonably cooperate with a Party’s efforts to obtain such title insurance.
2.3 Inspections. Each Party grants to the other, its agents and authorized representatives a license up to the Close of Escrow to enter upon the respective Parcels to perform any inspections, investigations, studies and tests (including, without limitation, physical, engineering, soils, geotechnical and environmental tests) that each Party deems reasonable at its sole cost and expense . Each Party shall defend, indemnify, assume all responsibility for, and hold the other Party harmless from all claims, demands, damages, actions, suits, proceedings, losses, liabilities, deficiencies, fines, penalties, punitive damages, expenses, defense costs or liability for any damages to property or injuries to persons, including accidental death (including reasonable attorneys’ fees and costs), which may be caused by any acts or omissions of the respective Party under this Section 2.3, whether such activities or performance thereof be by the Indemnifying Party or by anyone directly or indirectly employed or contracted with by the Indemnifying Party and whether such damage shall accrue or be discovered before or after termination or expiration of this Agreement. Notwithstanding the foregoing, the Indemnifying Party shall not be liable for property damage or bodily injury to the extent caused by the negligence or acts or omissions of the other Party . This indemnity provision shall survive the termination, expiration, invalidation, or performance in full or in part of this Agreement.
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SECTION 3
ESCROW INSTRUCTIONS
3.0 Escrow Agent/Title Company. Generations Escrow in its Menifee office located at 30230 Haun Road, Suite 510, Menifee, CA 92584 shall act as the Escrow Agent for this transaction.
Ticor Title Inland Empire in its Riverside Office located at 4210 Riverwalk Pkwy, Ste. 200 Riverside, CA 92505 shall act as Title for this transaction (email [email protected]).
3.1 Escrow Instructions. This Agreement, together with any standard instructions of Escrow Agent, shall constitute the joint escrow instructions of District and City to Escrow Agent, as well as an agreement between District and City. In the event of any conflict between the provisions of this Agreement and Escrow Agent's standard instructions, this Agreement shall prevail.
3.2 Close of Escrow. The closing of the escrow shall occur on or before August 30, 2026 or a date for which the parties agree by written amendment, prepared by Escrow Agent and signed by both District and City ("Close of Escrow").
3.3 Payment of Escrow Costs. District and City shall each pay 1/2 of the normal and customary escrow costs.
3.4 Commission. District and City each represent and warrant to the other that no broker or finder is entitled to any commission or finder's fee in connection with this transaction, and each agrees to defend and hold harmless the other from any claim to any such commission or fee resulting from any action on its part.
3.5 Proration of Real Property Taxes . City and District acknowledge that each is a public entity and therefore exempt from the payment of real property taxes. Each party shall be responsible for the payment of any property taxes and assessments, if any, that may be assessed during the period of that party’s ownership of its respective property prior to the Close of Escrow.
In the event either party pays any such taxes or assessments allocable to any period after the Close of Escrow, that party may apply for a refund in accordance with the applicable provisions of the Revenue and Taxation Code.
3.6 Nature Hazard Disclosure. The Parties hereby instruct Escrow Agent to obtain and deliver to District and City within three (3) days after the Effective Date a Natural Disclosure Statement disclosing whether the City Parcel and District Parcel Property are located within any of the following: (a) a special flood hazard area designated by the Federal Emergency
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Management Agency; (b) an area of potential flooding; (c) a very high fire hazard severity zone; (d) an earthquake fault or special studies zone; or (e) a seismic hazard zone.
3.7 General Provisions Applicable to Escrow Agent . The following general provisions shall be applicable to the Escrow Agent.
(a) All disbursements shall be made by check or bank wire of the Escrow Agent. All funds received in the Escrow shall be deposited in a separate interest-earning escrow account with any bank doing business in the State of California.
(b) The Parties to the Escrow jointly and severally agree to pay all costs, damages, judgments, and expenses, including reasonable attorneys’ fees, suffered or incurred by the Escrow Agent in connection with, or arising out of, the Escrow, including, without limitation, a suit in interpleader brought by the Escrow Agent; provided, however, that nothing herein shall require the Parties to indemnify or hold harmless the Escrow Agent from or against any costs, damages, judgments, expenses, or liabilities resulting from the Escrow Agent’s own negligence, willful misconduct, or breach of its obligations under the Escrow instructions or applicable law. In the event that the Escrow Agent files a suit in interpleader, the Escrow Agent shall be fully released and discharged from all obligations imposed upon the Escrow Agent in the Escrow.
(c) All proration's and/or adjustments called for in the Escrow shall be made on the basis of a thirty (30) day month unless the Escrow Agent is otherwise instructed in writing.
3.8 Authority of Escrow Agent. The Escrow Agent is authorized to, and shall:
(a) Insert the Effective Date in the introductory paragraph of this Agreement and the appropriate amounts and date of the Close of Escrow in documents deposited by the Parties in Escrow.
(b) Do such other actions as necessary to fulfill the Escrow Agent’s obligations under this Agreement, including, if applicable, obtaining the Title Policy and recording any instrument delivered through Escrow.
(c) Within the discretion of the Escrow Agent, direct District and City to execute and deliver any instrument, affidavit or statement, and to perform any act reasonably necessary and/or applicable to comply with the provisions of FIRPTA and any similar state act or regu lation promulgated thereunder.
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(d) Prepare and file with all appropriate governmental or taxing authorities a uniform settlement statement, closing statement, tax withholding forms, including an IRS 1099 -S form, and be responsible for withholding taxes, if any such forms and/or withholding are provided for or required by law.
(e) Prepare and deliver to District and City for their review and approval prior to the Close of Escrow an estimated settlement statement.
3.9 Submittals into Escrow. The Parties shall submit documents and funds into Escrow as set forth in this Section.
(a) Submittals by City.
(i) At least two (2) days prior to the Close of Escrow, City shall submit into Escrow an original Grant Deed duly executed by City and acknowledged substantially in the form attached hereto as Attachment “1”.
(ii) At least two (2) days prior to the Close of Escrow, funds to cover all closing costs to be paid by City, if any.
(iii) At least two (2) days prior to the Close of Escrow, the original Certificate of Acceptance of the District ’s Grant Deed, duly executed by City.
(b) Submittals by District.
(i) At least two (2) days prior to the Close of Escrow , District shall submit into Escrow an original Grant Deed duly executed by District and acknowledged substantially in the form attached hereto as Attachment “2”.
(ii) At least two (2) days prior to the Close of Escrow, funds to cover all closing costs to be paid by District, if any.
(iii) At least two (2) days prior to the Close of Escrow , the original Certificate of Acceptance of the City ’s Grant Deed, duly executed by District.
3.10 Close of Escrow Procedure. The Escrow Agent shall close the Escrow as follows:
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(a) Record the Grant Deed conveying the City Parcel to the District with instructions to the Riverside County Recorder to deliver the Grant Deed to District and a conformed copy thereof to City;
(b) Record the Grant Deed conveying the District Parcel to the City with instructions to the Riverside County Recorder to deliver the Grant Deed to City and a conformed copy thereof to District;
(c) Deliver the Title Policy issued by the Title Company to the District; if any.
(d) Deliver the Title Policy issued by the Title Company to the City; if any.
(e) File any informational reports required by Internal Revenue Code Section 6045(e), as amended and any other applicable requirements; and
(f) Forward to District and City a separate accounting of all funds received and disbursed for each Party and copies of all executed, recorded or filed documents deposited into Escrow, with such recording and filing date and information endorsed thereon.
SECTION 4
REPRESENTATIONS AND WARRANTIES
4.0 City's Representations . City hereby makes the following representations, covenants and warranties and acknowledges that the execution of this Agreement by District has been made and the acquisition by District of the City Property will have been made in material reliance by District on such covenants, representations and warranties.
(a) Authority. City has full right, power and lawful authority to undertake all obligations as provided herein and the execution, performance and delivery of this Agreement by City has been fully authorized by all requisite actions on the part of the City.
(b) Execution of Agreement/Conflicts . This Agreement and all other documents to be executed by City hereunder will, upon execution and delivery thereof, have been duly executed by City and will constitute legal, valid and binding obligations of City , and neither the execution of this Agreement nor the performance of City's obligations hereunder will result in a default by City under any agreement or contract to which City is a party.
(c) No Conflict . To the best of the City’s knowledge, the City’s execution, delivery and performance of its obligations under this Agreement will not
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constitute a default or a breach under any contract, agreement or order to which the City is a party or by which it is bound.
(d) Existing Agreements. City has not entered into any agreements with any other party to sell or convey the City Parcel or any portion thereof and the City Parcel is not subject to any options or rights of first refusal.
(e) No Bankruptcy. The City is not the subject of a bankruptcy, insolvency or receivership proceeding of any kind, whether voluntary or involuntary.
(f) Possession. There are no leases or other agreement relating to the right of possession or occupancy of the City Parcel.
(g) Title. The City holds a fee title interest in the City Parcel.
(h) Hazardous Substances Disclosure. To City's knowledge, the City Parcel has not at any time been used for the purposes of storing, manufacturing, releasing or dumping Hazardous Materials or Substances. City warrants and represents to District that City is not aware of any Hazardous or Toxic Material or substance located on or beneath the City Parcel conveyed hereunder. If City becomes aware of any hazardous or toxic material or substance located on the or beneath the City Parcel conveyed hereunder prior to the Close of Escrow , City shall, in writing, within ten (10) days, notify District.
“Hazardous Materials" or "Substances” means any substance, material, or waste which is or becomes regulated by any local governmental authority, the State of California, or the United States Government, including, but not limited to, any material or substance which is (i) defined as a “hazardous waste”, “acutely hazardous waste”, “extremely hazardous waste”, or “restricted hazardous waste” under Section 25115, 25117 or 25122.7, or listed pursuant to Section 25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law), (ii) defined as a “hazardous substance” under Section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter -Presley-Tanner Hazardous Substance Account Act), (iii) defined as a “hazardous material”, “hazardous substance”, or “hazardous waste” under Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory), (iv) defined as a “hazardous substance” under Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances), (v) petroleum, (vi) asbestos, (vii) polychlorinated b iphenyls, (viii) listed under Article 9 or defined as “hazardous” or “extremely
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hazardous” pursuant to Article 11 of Title 22 of the California Code of Regulations, Chapter 20, (ix) designated as “hazardous substances” pursuant to Section 311 of the Clean Water Act (33 U.S.C. Section 1317), (x) defined as a “hazardous waste” pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq. (42 U.S.C. Section 6903), (xi) defined as “hazardous substances” pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. Section 9601 et seq., (xii) methyl-tert butyl ether, or (xiii) any other substance, whether in the form of a solid, liquid, gas or any other form whatsoever, which by any Governmental Requirements either requires special handling in its use , transportation, generation, collection, storage, handling, treatment or disposal, or is defined as “hazardous” or harmful to the environment.
(i) Governmental Compliance. To the best of the City’s knowledge, the City has not received any notice from any governmental agency or authority alleging that the City Parcel is currently in violation of any law, ordinance, rule, regulation or requirement applicable to its use and operation. If any such notice or notices are received by the City, City shall, in writing, within ten (10) days of receipt of such notice, notify District.
All representations and warranties contained herein shall be true and correct on the date hereof and on the Close of Escrow and City's liability from misrepresentation of or breach of warranty, representation or covenant, wherever contained in this Agreement, shall survive the execution and delivery of this Agreement and the Close of Escrow for a period of two (2) years.
If City becomes aware of any act or circumstance which would change or render incorrect, in whole or in part, any representation or warranty by City under this Agreement, whether as of the date given or any time thereafter through the Close of Escrow and whether or not such representation or warranty was based upon City 's knowledge and/or belief as of a certain date, then City will give immediate written notice of such changed fact or circumstance to District. City shall not take or authorize, directly or indirectly, any action which would prevent City from representing and warranting as to the truth and accuracy of the statements in Section 4.0 as of the Close of Escrow.
4.1 District's Representations. District hereby makes the following representations, covenants and warranties and acknowledges that the execution of this Agreement by City has been made and the acquisition by City of the District Parcel will have been made in material reliance by City on such covenants, representations and warranties.
(a) Authority. District has full right, power and lawful authority to undertake all obligations as provided herein and the execution, performance and
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delivery of this Agreement by District has been fully authorized by all requisite actions on the part of the District.
(b) Execution of Agreement/Conflicts . This Agreement and all other documents to be executed by District hereunder will, upon execution and delivery thereof, have been duly executed by District and will constitute legal, valid and binding obligations of District, and neither the execution of this Agreement nor the performance of District 's obligations hereunder will result in a default by District under any agreement or contract to which District is a party.
(c) No Conflict . To the best of the District’s knowledge, the District ’s execution, delivery and performance of its obligations under this Agreement will not constitute a default or a breach under any contract, agreement or order to which the District is a party or by which it is bound.
(d) Existing Agreements. District has not entered into any agreements with any other party to sell or convey the District Parcel or any portion thereof and the District Parcel is not subject to any options or rights of first refusal.
(e) No Bankruptcy. The District is not the subject of a bankruptcy , insolvency or receivership proceeding of any kind, whether voluntary or involuntary.
(f) Possession. There are no leases or other agreement relating to the right of possession or occupancy of the District Parcel.
(g) Title. The District holds a fee title interest in the District Parcel.
(h) Hazardous Substances Disclosure . To District 's knowledge, the District Parcel has not at any time been used for the purposes of storing, manufacturing, releasing or dumping Hazardous Materials or Substances.
District warrants and represents to City that District is not aware of any Hazardous or Toxic Material or substance located on or beneath the District Parcel conveyed hereunder. If District becomes aware of any hazardous or toxic material or substance located on the or beneath the District Parcel conveyed hereunder prior to the Close of Escrow , District shall, in writing, within ten (10) days, notify City.
“Hazardous Materials" or "Substances” means any substance, material, or waste which is or becomes regulated by any local governmental authority, the State of California, or the United States Government, including, but not limited to, any material or substa nce which is (i) defined as a “hazardous waste”, “acutely hazardous waste”, “extremely hazardous waste”, or
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“restricted hazardous waste” under Section 25115, 25117 or 25122.7, or listed pursuant to Section 25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law), (ii) defined as a “hazardous substance” under Section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter -Presley-Tanner Hazardous Substance Account Act), (iii) defined as a “hazardous material”, “hazardous substance”, or “hazardous waste” under Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory), (iv) defined as a “hazardous substance” under Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances), (v) petroleum, (vi) asbestos, (vii) polychlorinated biphenyls, (viii) listed under Article 9 or defined as “hazardous” or “extremely hazardous” pursuant to Article 11 of Title 22 of the California Code of Regulations, Chapter 20 , (ix) designated as “hazardous substances” pursuant to Section 311 of the Clean Water Act (33 U.S.C. Section 1317), (x) defined as a “hazardous waste” pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq. (42 U.S.C. Section 6903), (xi) defined as “hazardous substances” pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. Section 9601 et seq., (xii) methyl-tert butyl ether, or (xiii) any other substance, whether in the form of a solid, liquid, gas or any other form whatsoever, which by any Governmental Requirements either requires special handling in its use, transportation, generation, collection, storage, handling, treatment or disposal, or is defined as “hazardous” or harmful to the environment.
(i) Governmental Compliance . To the best of the District’s knowledge, the District has not received any notice from any governmental agency or authority alleging that the District Parcel is currently in violation of any law, ordinance, rule, regulation or requirement applicable to its use and operation. If any such notice or notices are received by the District, District shall, in writing, within ten (10) days of receipt of such notice, notify City.
All representations and warranties contained herein shall be true and correct on the date hereof and on the Close of Escrow and District's liability from misrepresentation of or breach of warranty, representation or covenant, wherever contained in this Agreement, shall survive the execution and delivery of this Agreement and the Close of Escrow for a period of two (2) years.
If District becomes aware of any act or circumstance which would change or render incorrect, in whole or in part, any representation or warranty by District under this Agreement, whether as of the date given or any time thereafter through the Close of Escrow and whether or not such representation or warranty was based upon District 's knowledge and/or belief as of a
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certain date, then District will give immediate written notice of such changed fact or circumstance to City. District shall not take or authorize, directly or indirectly, any action which would prevent District from representing and warranting as to the truth and accuracy of the statements in Section 4.1 as of the Close of Escrow.
SECTION 5
CLOSING CONDITIONS
5.0 District's Conditions to Closing. In addition to any other condition set forth in this Agreement in favor of District, District shall have the right to condition its obligation to convey fee simple title to the District Parcel and close the escrow upon the satisfaction, or written waiver by District, of each of the following conditions precedent on the Close of Escrow or such earlier time as provided for herein (collectively, "District Closing Conditions"):
(a) City's Due Performance. All of the representations and warranties of City set forth in this Agreement shall be true, correct and complete in all material respects as of the Close of Escrow , and City, on or prior to the Close of Escrow , shall have complied with and/or performed all of the material obligations, covenants and agreements required on the part of City to be complied with or performed pursuant to the terms of this Agreement, including the execution and delivery by City of all closing documents required under this Agreement.
(b) Delivery of Title Policy at Closing. The Title Company is unconditionally and irrevocably committed to issue to District at Close of Escrow a CLTA standard coverage owner's title policy, or, upon District's request, an ALTA extended coverage owner's policy of title insurance, insuring District's title to the City Parcel in the amount of $250,000, subject only to the standard exceptions and exclusions from coverage contained in such form of the policy and title exceptions that District approved pursuant to Section 2. 1 of this Agreement.
(c) Property Condition. No material adverse change shall have occurred to the condition of the City Parcel up and until the Close of Escrow.
(d) No Rights to Use or Possess Property . The City Parcel shall be free from any tenant leases, tenancies, licenses, squatters, or other agreements, allowing any person or entity the right to use or possess the City Parcel.
(e) Bankruptcy. There shall not have occurred at any time on or before the Close of Escrow the making by City of any general assignment for the benefit of creditors, or the filing against City of a petition to have City adjudged bankrupt or a petition for reorganization or arrangement under
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any law relating to bankruptcy, or the appointment of a trustee or receiver to take possession of substantially all of the interest of City in the City Parcel, or the attachment, execution or judicial seizure of substantially all the assets of City or the interests of City in the City Parcel or any legal proceeding in which City is adjudicated as being, or stipulates to being, insolvent or unable to pay City's debts as they come due.
(f) Deposit of Funds. City shall have deposited all funds and shall have made all payments required to be deposited and made by City, if any, for the Close of Escrow pursuant to this Agreement.
(g) No Litigation. No litigation shall be pending or threatened by any third parties which seek to enjoin the transactions contemplated herein.
5.1 City's Closing Conditions . In addition to any other condition set forth in this Agreement in favor of City, City shall have the right to condition its obligation to convey fee simple title to the City Property and close the escrow upon the satisfaction, or written waiver by City, of each of the following conditions precedent on the Close of Escrow or such earlier time as provided for herein (collectively, "City Closing Conditions"):
(a) District's Due Performance. All of the representations and warranties of District set forth in this Agreement shall be true, correct and complete in all material respects as of the Close of Escrow , and District, on or prior to the Close of Escrow, shall have complied with and/or performed all of the material obligations, covenants and agreements required on the part of District to be complied with or performed pursuant to the terms of this Agreement, including the execution and delivery by City of all c losing documents required under this Agreement.
(b) Delivery of Title Policy at Closing. The Title Company is unconditionally and irrevocably committed to issue to City at Close of Escrow a CLTA standard coverage owner's title policy, or, upon City 's request, an ALTA extended coverage owner's policy of title insurance, insuring City's title to the District's Parcel in the amount of $ 250,000, subject only to the standard exceptions and exclusions from coverage contained in such form of the policy and title exceptions that City approved pursuant to Section 2.1 of this Agreement.
(c) Property Condition. No material adverse change shall have occurred to the condition of the District Parcel up and until the Close of Escrow.
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(d) No Rights to Use or Possess Property. The District Parcel shall be free from any tenant leases, tenancies, licenses, squatters, or other agreements, allowing any person or entity the right to use or possess the District Parcel.
(e) Bankruptcy. There shall not have occurred at any time on or before the Close of Escrow the making by District of any general assignment for the benefit of creditors, or the filing against District of a petition to have District adjudged bankrupt or a petition for reorganization or arrangement under any law relating to bankruptcy, or the appointment of a trustee or receiver to take possession of substantially all of the interest of District in the District Parcel, or the attachment, execution or judicial seizure of substantially all the assets of City or the interests of District in the District Parcel or any legal proceeding in which District is adjudicated as being, or stipulates to being, insolvent or unable to pay District's debts as they come due.
(f) Deposit of Funds . District shall have deposited all funds and shall have made all payments required to be deposited and made by District, if any, for the Close of Escrow pursuant to this Agreement.
(g) No Litigation. No litigation shall be pending or threatened by any third parties which seek to enjoin the transactions contemplated herein.
5.2 Satisfaction of Conditions. Where satisfaction of any of the foregoing conditions requires action by District or City, each party shall use their diligent efforts, in good faith, and at its own cost, to satisfy such condition.
5.3 Waiver of Conditions to Close of Escrow . District may at any time or time, at District elects , waive any of the conditions set forth in in Section 5.0 above to its obligations hereunder, but any such waiver shall be effective only if contained in a writing signed by District and delivered to City and Escrow Agent. City may at any time or times, as City elects, waive any of the conditions set forth in Section 5.1 above to its obligations hereunder, but any such waiver shall be effective only if contained in a writing signed by City and delivered to District and Escrow Agent.
5.4 Termination. In the event each of the District Closing Conditions set forth in Section 5.0 is not fulfilled prior to the Close of Escrow, or such earlier time period as provided for herein or waived by District pursuant to Section 5.3, and provided District is not in Default of this Agreement, District may at its option terminate this Agreement and the escrow opened hereunder.
In the event each of the City Closing Conditions set forth in Section 5.1 is not fulfilled prior to the Close of Escrow , or such earlier time period as provided for herein or waived by City
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pursuant to Section 5.3 , and provided City is not in Default of this Agreement, City may at its option terminate this Agreement and the escrow opened hereunder.
No termination under this Agreement shall release any party then in default from liability for such default. In the event of such termination or any other termination hereunder, the Parties agree neither this Agreement, nor any of the negotiations leading up to it, shall constitute nor serves as evidence of any unreasonable delay or other unreasonable pre-condemnation conduct by the District or City.
SECTION 6
DEFAULTS AND REMEDIES
6.0 Default. In the event of a default by any party under this Agreement, the non - defaulting party shall provide written notice to the defaulting party of the existence of such default, and the defaulting party shall have a period ten (10) days after receipt of such wr itten notice to cure such default; provided, however, if such default cannot reasonably be cured within ten (10) days, the defaulting party shall not be in default if such party commences to cure the default within such ten (10) day period and diligently a nd in good faith continues to cure the same thereafter. As used in this Agreement, the term "Default" shall refer to a default by a party that is not timely cured as set forth above. In the event of a Default by any party under this Agreement, the non-defaulting party shall have all right and remedies for such breach available at law or in equity, including without limitation the remedy of specific performance.
6.1 Inaction Not a Waiver of Default. Any failures or delays by either Party in asserting any of its rights and remedies as to any Default shall not operate as a waiver of any Default or of any such rights or remedies, or deprive either such Party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies.
6.2 Applicable Law. The laws of the State of California shall govern the interpretation and enforcement of this Agreement. Any legal actions must be instituted in the Superior Court of the County of Riverside, State of California, in an appropriate municipal court in Riverside County, or in the United States District Court for District of California in which Riverside County is located.
SECTION 7
GENERAL PROVISIONS
7.0 District and City Approvals and Actions. The General Manager, or his designee, is authorized to act on behalf of District unless specifically provided otherwise or the context should require otherwise. The City Manager, or his designee, is authorized to act on behalf of City unless specifically provided otherwise or the context should require otherwise.
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7.1 Rights and Remedies Are Cumulative. Except as otherwise expressly stated in this Agreement, the rights and remedies of the Parties are cumulative, and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same Default or any other Default by the other Party.
7.2 No Third Party Rights. The Parties intend that no rights or remedies be granted to any third party as a beneficiary of this Agreement or of any covenant, duty, obligation or undertaking established herein.
7.3 Counterparts. This Agreement may be signed in multiple counterparts which, when signed by all Parties, shall constitute a binding agreement.
7.4 Integration. This Agreement contains the entire understanding between the Parties relating to the transaction contemplated by this Agreement. All prior or contemporaneous agreements, understandings, representations and statements, oral or written, are merged in this Agreement and shall be of no further force or effect. Each Party is entering this Agreement based solely upon the representations set forth herein and upon each Party's own independent investigation of any and all facts such party deems m aterial. This Agreement and Attachment s 1 and 2 hereto constitute the entire understanding and agreement of the Parties, notwithstanding any previous negotiations or agreements between the Parties or their predecessors in interest with respect to all or any part of the subject matter hereof.
7.5 Attorneys’ Fees. In any action between the P arties to interpret, enforce, reform, modify, rescind, or otherwise in connection, with any of the terms or provisions of this Agreement, the prevailing Party in the action shall be entitled, in addition to damages, injunctive relief, or any other relief to which it might be entitled, reasonable costs and expenses including, without limitation, litigation costs and reasonable attorneys' fees.
7.6 Notices, Demands and Communications Between the Parties . Any notices, requests, demands, documents, approvals or disapprovals given or sent under this Agreement from one Party to another (collectively, “Notices”) may be personally delivered or deposited with the United States Postal Service for mailing, postage prepaid, to the address of the other Party as stated in this Section, and shall be deemed to have been given or sent at the time of personal delivery or, if mailed, on the third day following the date of deposit in the course of transmission with the United States Postal Service. Notices shall be sent as follows:
If to City:
City of Menifee
29844 Haun Rd.
Menifee, CA 92586
Attn: City Manager
If to District:
Eastern Municipal Water District
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2270 Trumble Road
Perris, CA 92572-8300
Attention: Real Property Manager
7.7 Severability. To the best knowledge and belief of the Parties to this Agreement, this Agreement contains no provision that is contrary to any federal, state or local law or to any regulatory requirement or other ruling or regulation of a federal, state or local agency that would be in breach of the obligations of either or both of the Parties under the terms and provisions of any legally binding agreement. However, if any provision of this Agreement or any part thereof, shall at any time be held to be invalid, in wh ole or in part, under any applicable federal, state or local law by a court of competent jurisdiction, or by arbitrators or an administrative agency of the federal, state or local government with proper jurisdiction, then such provision or a portion thereof, as appropriate, shall be curtailed and limited only to the extent necessary to bring it within the requirements of the law; in such event, the validity and enforceability of the remaining provisions of this Agreement shall remain in effect and shall in no way be affected, impaired or invalidated, unless the invalidated provision(s) shall uniquely, materially and adversely affect the rights and obligations of a Party to this Agreement.
7.8 Legal Advice. Each Party represents and warrants to the other the following: they have carefully read this Agreement, and in signing this Agreement, they do so with full knowledge of any right which they may have; they have received independent legal advice from the ir respective legal counsel as to the matter set forth in this Agreement, or have knowingly chosen not to consult legal counsel as to the matters set forth in this Agreement; and, they have freely signed this Agreement without any reliance upon any agreeme nt, promise, statement or representation by or on behalf of the other Party, or their respective agents, employees, or attorneys, except as specifically set forth in this Agreement, and without duress or coercion, whether economic or otherwise.
7.9 Authority. Each individual executing this Agreement individually or on behalf of a corporation, nonprofit corporation, trust, partnership or other entity or organization, represents and warrants that he or she is duly authorized to execute and deliver this Agreement and that this Agreement is binding upon the same in accordance with its terms.
7.10 Titles and Captions. Titles and captions are for convenience of reference only and do not define, describe or limit the scope or the intent of this Agreement or of any of its terms.
Reference to section numbers is to sections in this Agreement, unless expressly stated otherwise.
7.11 Interpretation. As used in this Agreement, masculine, feminine or neuter gender and the singular or plural number shall each be deemed to include the others where and when the context so dictates. The word “including” shall be construed as if followed by the words “without limitation.” This Agreement shall be interpreted as though prepared jointly by both Parties.
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7.12 No Waiver. A waiver by either Party of a breach of any of the covenants, conditions or agreements under this Agreement to be performed by the other Party shall not be construed as a waiver of any succeeding breach of the same or other covenants, agreements, restrictions or conditions of this Agreement.
7.13 Modifications. Any alteration, change or modification of or to this Agreement, in order to become effective, shall be made in writing and in each instance signed on behalf of each Party. The District and City agree to mutually consider reasonable requests for amendments to this Agreement that may be made by any of the Parties hereto, provided such requests are consistent with this Agreement and would not substantially alter the basic terms included herein.
7.14 Cooperation. Each Party agrees to cooperate with the other in this transaction and, in that regard, to execute any documents which may be reasonably necessary, helpful, or appropriate to carry out the purposes and intent of this Agreement, including, but not limited to, easements, releases or additional agreements.
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IN WITNESS WHEREOF , the Parties have executed this Agreement on the respective dates set forth below:
Dated: ________
APPROVED AS TO FORM:
By: _________________________
Jeffrey T. Melching
City Attorney
"CITY"
CITY OF MENIFEE,
a California general law City
By: _________________________
Armando G. Villa
City Manager
ATTEST:
By: _________________________
Stephanie Roseen
City Clerk
(SEAL)
Dated: ________
"DISTRICT"
EASTERN MUNICIPAL WATER DISTRICT,
a public agency organized under the laws
of the State of California
By: _________________________
Matthew Bates, P.E.
Director of Engineering Support Services