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HomeMy WebLinkAbout14-046 CC ResolutionRESOLUTION NO. 14 -46 ' A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TEMECULA APPROVING THAT CERTAIN AGREEMENT ENTITLED PURCHASE AND SALE AGREEMENT BETWEEN THE CITY OF TEMECULA AND EASTERN MUNICIPAL WATER DISTRICT IN CONNECTION WITH GRANT OF NON - EXCLUSIVE EASEMENT FOR EASTERN MUNICIPAL WATER DISTRICT'S OLD TOWN SEWER IMPROVEMENTS (ASSESSOR'S PARCEL NUMBER 922 - 100 -031) THE CITY COUNCIL OF THE CITY OF TEMECULA DOES HEREBY RESOLVE AS FOLLOWS: Section 1. Findings. A. Eastern Municipal Water District ( "EMWD ") proposes to install a 15 -inch diameter sewer main pipe and appurtenances within Old Town Front Street between Moreno Drive and First Street to augment the existing sewer system in Old Town, which is currently at near capacity ( "EMWD Project "). B. EMWD will install the new sewer pipeline improvements for the EMWD ' Project using a "guided bore" tunneling method to minimize surface roadway disturbance and thus minimize the impact to the businesses, community and visitors of Old Town. Launching and receiving shafts will be temporarily located at each intersection along Old Town Front Street to allow for the below - ground tunneling operation. The proposed sewer main will be aligned north -south and located below the west sidewalk of Old Town Front Street. The shafts will be located just west of Old Town Front Street within the side streets to allow free -flow of traffic along Old Town Front Street. C. EMWD will construct most of the sewer pipe alignment within the City public right -of -way. To minimize the impact to Old Town, however, EMWD will construct an approximate 150 -foot section of the pipe alignment will be constructed under the City -owned property located at the northwesterly corner of Old Town Front Street and First Street identified as Riverside County Tax Assessor's Parcel Number 922 - 100 -031 ( "City Parcel "). The City Parcel is a portion of the City's south side parking lot, which is used for parking by the public and the Stampede. D. EMWD seeks to acquire an approximate 50 -foot wide (2,857 square foot) non - exclusive easement ( "Subject Easement ") on the City Parcel for the installation, operation and maintenance of the proposed pipeline. The Subject Easement is described more particularly on Exhibit "A" and depicted on the Exhibit "B" to the attached Purchase and Sale Agreement. Resos 14 -46 1 E. On March 17, 2014, EMWD sent to the City a written offer to purchase the ' Subject Easement in connection with the EMWD Project. EMWD's offer was based on recent valuation data received by the City in connection with adjacent City -owned properties; discussions and negotiations between City staff and EMWD staff regarding EMWD's proposed acquisition of the Subject Easement for the EMWD Project; discussions with an independent appraiser regarding the scope of the non - exclusive easement and its impact on the City Parcel; and the City's continued rights in connection with the City Parcel. F. The City's grant of the Subject Easement to EMWD benefits the community. The EMWD Project will augment the existing sewer system in Old Town, which is currently at near capacity, and accommodate anticipated future development. EMWD will install and construct the new sewer pipeline improvements within the area of the Subject Easement by using a "guided bore" tunneling method to avoid any impact to the parking lot improvements located on the surface of the Subject Easement. EMWD will repair, at its sole cost and expense, any damage to the surface area of the Subject Easement or the City Parcel that arises in connection with EMWD's use or construction of the EMWD Project in the area of the Subject Easement. The City's grant of the Subject Easement does not impact the City's rights to, or use of, the City Parcel. Section 2. Approval of Purchase and Sale Agreement. The City Council of the City of Temecula approves that certain agreement entitled Purchase and Sale ' Agreement Between the City of Temecula and Eastern Municipal Water District in Connection with the Grant of a Non - exclusive Easement for Eastern Municipal Water District's Old Town Sewer Improvements (Assessor's Parcel Number 922 - 100 -031) ( "Agreement "), with such changes in the Agreement as may be mutually agreed upon between the City and EMWD as are in substantial conformance with the form of Agreement on file in the office of the City Clerk. The Mayor is hereby authorized to execute the Agreement on behalf of the City. A copy of the final Agreement, when executed by the Mayor, will be placed on file in the office of the City Clerk. Section 3. City Manager's Authority. The City Manager (or his designee), is hereby authorized, on behalf of the City, to take all actions necessary and convenient to carry out and implement the Agreement, and to administer the City's obligations, responsibilities and duties to be performed under the Agreement, including but not limited to, approval and execution on behalf of the City of the Grant of Easement and other similar agreements and documents as contemplated by or described in the Agreement or as necessary and convenient to implement the Agreement and to effectuate the grant of the Subject Easement contemplated therein, including but not limited to escrow instructions and related documents if the City and EMWD determine an escrow is necessary to effect the transfer of the Subject Easement contemplated by the Agreement. Section 4. Certification. The City Clerk shall certify the adoption of this ' resolution. Resos 14 -46 2 PASSED, APPROVED, AND ADOPTED by the City Council of the City of ' Temecula this 22nd day of July, 2014. ATTEST: Randi Joh , MMC City Clerk [SEAL] Resos 14 -46 fvfaryann Edwards, Mayor STATE OF CALIFORNIA ) ' COUNTY OF RIVERSIDE ) ss CITY OF TEMECULA ) I, Randi Johl - Olson, JD, MMC, City Clerk of the City of Temecula, do hereby certify that the foregoing Resolution No. 14 -46 was duly and regularly adopted by the City Council of the City of Temecula at a meeting thereof held on the 22nd day of July, 2014, by the following vote: AYES: 4 COUNCIL MEMBERS: Comerchero, Naggar, Washington, Edwards NOES: 0 COUNCIL MEMBERS: None ABSENT: 1 COUNCIL MEMBERS: Roberts ABSTAIN: 0 COUNCIL MEMBERS: None andi Johl - Olson, JD, MMC City Clerk Resos 14 -46 4 ' PURCHASE AND SALE AGREEMENT BETWEEN THE CITY OF TEMECULA AND EASTERN MUNICIPAL WATER DISTRICT IN CONNECTION WITH GRANT OF NON- EXCLUSIVE EASEMENT FOR EASTERN MUNICIPAL WATER DISTRICT'S OLD TOWN SEWER IMPROVEMENTS (ASSESSOR'S PARCEL NUMBER 922- 100 -031) This Purchase and Sale Agreement in Connection with Grant of Non - Exclusive Easement for Eastern Municipal Water District's Old Town Sewer Improvements (Assessor's Parcel Number 922 -100 -031) is dated and entered into as of July 22 , 2014 ( "Effective Date ") by and between EASTERN MUNICIPAL WATER DISTRICT ( "EMWD ") and the CITY OF TEMECULA, a municipal corporation ( "City "), and constitutes an agreement to purchase and sell certain real property interests between the parties. RECITALS A. EMWD seeks to purchase from the City an approximate 2,857 square foot non- exclusive easement on the City -owned property identified as Riverside County Tax Assessor's Parcel Number 922- 100 -031 ("City Parcel ") in connection with EMWD's proposed Old Town Sewer Improvements ("EMWD Project "). The approximate 2,857 square foot non - exclusive easement ( "Subject Easement ") is more particularly described on Exhibit "A" and depicted on Exhibit "B" to this Agreement, which are incorporated herein by this reference. The City Parcel ' is roughly depicted on Exhibit "C" to this Agreement, which is incorporated herein by this reference. B. On March 17, 2014, EMWD sent to the City a written offer to purchase the Subject Easement in connection with the EMWD Project. EMWD's offer was based on recent valuation data received by the City in connection with adjacent City -owned properties; discussions and negotiations between City staff and EMWD staff regarding EMWD's proposed acquisition of the Subject Easement for the EMWD Project; discussions with an independent appraiser regarding the scope of the non - exclusive easement and its impact on the City Parcel; and the City's continued rights in connection with the City Parcel. C. The EMWD Project would install a 15 -inch sewer main within the City's Old Town Front Street right -of -way to augment the capacity of the current sewer system in Old Town. According to FM WD, the current sewer pipe located within Old Town Front Street (between Moreno Drive and First Street) is approaching capacity and the proposed improvements are necessary to ensure adequate service and to accommodate anticipated future development within the Old Town area. EMWD will install the new sewer pipeline improvements using a "guided boring" tunneling method to minimize surface roadway disturbance and thus minimize the impact to the businesses, community and visitors of Old Town. The launching and receiving shafts will be temporarily located at each intersection along Old Town Front Street to allow for the below- ground tunneling operation. The proposed sewer main will be aligned north -south and located below the west sidewalk of Old Town Front Street. D. The City desires to sell, and EMWD desires to buy, the Subject Easement on the terms and conditions set forth herein. 1 1086 -0004v 171417 1 v 1.doo ' NOW THEREFORE, in consideration of the above Recitals, which are incorporated herein by this reference, and for other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the City and EMWD agree to the following: 1. Purchase and Sale. The City agrees to sell the Subject Easement to EMWD and EMWD agrees to purchase the Subject Easement from the City on the terms and conditions set forth in this Agreement. 2. Purchase Price. The total purchase price that EMWD will pay to the City for the Subject Easement is the sum of $27,150.00 ( "Purchase Price "). 3. Title and Title Insurance. a. EMWD's Election to Obtain a Policy of Title Insurance. EMWD may, at its sole discretion, require that a title company of its choice ("Title Company ") issue a CLTA Owner's Standard Coverage Policy of Title Insurance that insures EMWD's easement interest in the Subject Easement in the amount of the Purchase Price ( "Policy "). Within 15 calendar days of the Effective Date, EMWD will notify the City in writing of its election to obtain the Policy. If EMWD elects to obtain the Policy, the Title Company will provide to the City and F.MWD copies of all instruments identified as exceptions on said title commitment. EMWD will pay for all costs relating to the Policy. b. Policy Subject to Permitted Title Exceptions. The Policy provided ' for pursuant to Section 3.a. will insure EMWD's easement interest in the Subject Easement free and clear of all liens, encumbrances, restrictions, and rights -of -way of record, subject only to the following permitted conditions of title ( "Permitted Title Exceptions "): i. General and special real property taxes for the then current tax fiscal year that are a lien not then due and payable. ii. The applicable zoning, building and development regulations of any municipality, county, state or federal jurisdiction affecting the Subject Easement. C iii. Quasi- public utility, public utility, public alley, public street easements, and rights of way of record. iv. Those non - monetary exceptions approved by EMWD within ten business days after the date EMWD receives the title commitment and legible copies of all instruments noted as exceptions therein. (1) Unconditional Disapproval of Exceptions. EMWD will notify the City in writing of its unconditional disapproval of any such exceptions within ten business days after the date EMWD receives the title commitment and legible copies of all instruments noted as exceptions therein. if EMWD unconditionally disapproves any such exceptions, this Agreement will have no further force or effect. 1 1086- 0004 \1714171 v I. doe -2- ' (2) Conditional Disapproval of Exceptions. EMWD will notify the City in writing of its conditional disapproval of any such exceptions within ten business days after the date EMWD receives the title commitment and legible copies of all instruments noted as exceptions therein. If EMWD conditionally disapproves any such exceptions, the City will use its best efforts to cause the exceptions to be removed within 30 calendar days of receipt of a written request by EMWD to remove such exceptions. If such conditionally disapproved non - monetary exceptions are not removed within such 30- calendar day period, EMWD may, at EMWD's option, either accept the Subject Easement subject to such encumbrances, or terminate the Agreement in which case this Agreement will thereupon be of no further force or effect. C. Election Not to Obtain the Policy. EMWD's failure to provide written notice to the City of its election to obtain the Policy as provided in Section 3.a. will be deemed a decision by EMWD to not obtain the Policy. In such cases, the parties agree that they will proceed with the transaction contemplated by this Agreement. 4. Due Diligence Period and Right of Entry and Access. a. Due Diligence Period. During the period commencing on the Effective Date ( "commencement date ") and ending at 5:00 p.m. 30 calendar days after said commencement date ( "Due Diligence Period "), EMWD may inspect the Subject Easement as necessary for the purpose of making inspections and other examinations of the Subject ' Easement, including, but not limited to, the right to perform soil and geological tests of the Subject Easement and an environmental site assessment thereof ( "Due Diligence Activities "). EMWD will notify the City in writing 24 -hours before going on the Subject Easement. EMWD will conduct the Due Diligence Activities in connection with the Subject Easement during normal business hours. EMWD will not conduct any invasive testing or boring without the prior written notification of the City and City's written permission of the same, which permission shall not be unreasonably withheld. b. Right of Entry and Indemnification. EMWD does hereby indemnify and forever save the City, its officials, employees, agents, attorneys, successors and assigns, free and harmless from and against any and all liability, loss, damages and costs and expenses, demands, causes of action, claims orjudgments, whether or not arising from or occurring out of any damage to the Subject Easement as a result of any accident or other occurrence at the Subject Easement that is in any way connected with EMWD's Due Diligence Activities on the Subject Easement pursuant to this Section. If EMWD fails to acquire the Subject Easement due to EMWD's default, EMWD's right to enter the Subject Easement in connection with the Due Diligence Activities will terminate upon the termination of EMWD's right to purchase the Subject Easement. In such event, EMWD will remove or cause to be removed all of EMWD's personal property, facilities, tools and equipment from the Subject Easement. If EMWD does not remove all of EMWD's personal property, facilities, tools and equipment from the Subject Easement within ten business days of the date that EMWD's right to enter the Subject Easement terminates under this Section, the City has the right to remove said personal property, facilities, tools and equipment from the Subject Easement. EMWD is responsible for all reasonable costs incurred by the City in any such removal by the City of EMWD's personal properly, facilities, tools and equipment from the Subject Easement. In the -3- 1 1086- 0004\1 71 417 1 N .doc ' event the Subject Easement area is altered or disturbed in any manner in connection with EMWD's Due Diligence Activities, EMWD shall immediately return the Subject Easement area to the condition existing prior to the Due Diligence Activities and EMWD, to the maximum extent allowed by law, shall indemnify, defend and hold the City harmless from and against any and all claims, liabilities, damages, losses, costs and expenses of any kind or nature whatsoever (including, without limitation, reasonable attorneys' fees and expenses and court costs) suffered, incurred or sustained by the City as a result of, by reason of, or in connection with the Due Diligence Activities or the entry by EMWD on the Subject Easement. Deposit of Grant of Easement and Purchase Price. a. Notification by EMWD of Decision to Purchase Subject Easement. EMWD will notify the City in writing within five business days of its decision to proceed with the purchase of the Subject Easement after making the election regarding the Policy pursuant to Section 3 and approval of the purchase after (i) EMWD's completion of the Due Diligence Activities discussed above in Section 4 or (ii) EMWD's election not to complete any Due Diligence Activities. b. Deposit of Grant of Easement by the City. Within five business days of receipt from EMWD of EMWD's written decision to proceed with the purchase of the Subject Easement pursuant to Section 5.a. above, the City will execute and deposit with EMWD the fully executed Grant of Easement in substantially the form attached as Exhibit "D" hereto. C. Deposit of Purchase Price by EMWD. Within five business days of receipt from the City of the executed Grant of Easement, EMWD will deposit the Purchase Price with the City as the total compensation for the Grant of Easement. 6. Fees, Charges and Costs. EMWD will pay all of the customary recording fees, escrow fees if the parties determine an escrow is necessary to effect the transfer of the Grant of Easement, fees for the Policy, and all charges and costs that arise in connection with this transaction. 7. Authorization to Record Grant of Easement. EMWD is authorized to record the Grant of Easement as soon as it delivers to the City the Purchase Price for the Subject Easement. 8. Warranties and Representation of the City. a. The City has taken all required action to permit it to execute, deliver, and perform its obligations under this Agreement. b. The City has the power and authority to execute and deliver this Agreement and to carry out its obligations hereunder and consummate the transaction contemplated herein. C. The City represents and warrants that to the best of the City's knowledge, there are no actions, suits, material claims, legal proceedings or any other -4- 11086- 0004 \1714171 v1. due proceedings affecting the Subject Easement or any portion thereof, at law, or in equity before any court or governmental agency, domestic or foreign. d. The City represents and warrants that it did not use, generate, release, discharge, store or dispose of any hazardous waste, toxic substances or related materials on, or under, in or about the Subject Easement or transport any Hazardous Materials to or from the Subject Easement and that it shall not use, generate, release, discharge, store or dispose of any hazardous waste, toxic substances or related materials on, or under, in or about the Subject Easement prior to the submittal of the executed Grant of Easement to EMWD. The term "Hazardous Materials" shall mean any substance, material or waste which is or becomes regulated by any local governmental authority, the Stale of California or the United States Government, including, but not limited to, any material or substance which is (i) defined as a "hazardous waste," "extremely hazardous waste" or "restricted hazardous waste" under sections 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 "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), (iii) defined as "hazardous substance" under section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances), (iv) petroleum, (v) asbestos, (vi) polychlorinated biphenyls, (vii) listed under Article 9 or defined as "hazardous" or "extremely hazardous" pursuant to Article 1 1 of Title 22 of the California Administrative Code, Division 4, Chapter 20, (viii) designated as a ' "hazardous substances" pursuant to section 311 of the Clean Water Act, (33 U.S.C. § 1317), (ix) 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. §6903) or (x) defined as a "hazardous substances" pursuant to section 101 of the Comprehensive Environmental Response, Compensation, as amended by Liability Act, 42, U.S.C. §9601 et seq. (42 U.S.C. §9601). e. The City represents that to the best of the City's knowledge, the Subject Easement is in compliance with all applicable statutes and regulations, including environmental, health and safety requirements. f The City represents and warrants that until the date it submits the executed Grant of Easement to EMWD, the City will, upon learning of any fact or condition that would cause any of the warranties and representations in this Section 8 not to be true as of the date the City submits the executed Grant of Easement to EMWD, immediately give written notice of such fact or condition to EMWD. 9. Representations and Warranties of EMWD. E.,MWD hereby represents and warrants to the City the following, it being expressly understood and agreed that all such representations and warranties are to be true and correct as of the date of recording of the Grant of Easement in the Official Records of the County of Riverside and shall survive said recording date. a. EMWD has taken all required action to permit it to execute, deliver, and perform its obligations under this Agreement. -5- 11086 -0004\1 71417 1 v Ldoc ' b. EMWD has the power and authority to execute and deliver this Agreement and to carry out its obligations hereunder and consummate the transaction contemplated herein. 10. Construction of EMWD Project. EMWD will install and construct the new sewer pipeline improvements within the area of the Subject Easement by using a "guided boring" tunneling method to avoid any impact to the parking lot improvements located on the surface of the Subject Easement. EMWD will repair, at its sole cost and expense, any damage to the surface area of the Subject Easement or the City Parcel that arises in connection with EMWD's construction, use and maintenance of the EMWD Project in the area of the Subject Easement. 11. Releases. The City and EMWD acknowledge and agree as follows: a. EMWD has had, or will have adequate opportunity to complete all physical and financial inspections, investigations and examinations of the Subject Easement that it deems necessary and will be acquiring the Subject Easement solely on the basis of, and in reliance upon, the same and the protection afforded by (i) the Policy if it elects to obtain the Policy pursuant to Section 3.a. and/or (ii) its opportunity to conduct the Due Diligence Activities pursuant to Section 4. b. Subject to the representations and warranties set forth in Section 8 and the disclaimer of EMWD provided within this Section 11, EMWD is purchasing the Subject Easement on an "AS IS, WHERE IS" BASIS." Except for the representations and warranties ' set forth in Section 8.d. regarding the City's own use of the Subject Easement, EMWD is not relying on and the City has not made any warranties of any kind or character with respect to the environmental, soils, seismic or geotechnical condition of the Subject Easement. Further, EMWD is not relying on, and the City has not made and is not making any representations or warranties of any kind or character whatsoever with respect to the environmental, soils, seismic or geotechnical condition of the Subject Easement based on the use of the Subject Easement by any previous owner or occupant, including any use, generation, release, discharge, storage, or disposal of any hazardous waste, toxic substances or related materials on, under, in or about the Subject Easement or transportation of any hazardous materials to or from the Subject Easement by any previous seller or occupant of the Subject Easement. 12. EMWD's Full Payment of Purchase Price and Waiver of Additional Compensation by City. It is understood and agreed between the City and EMWD that subject to Section 10, EMWD's payment to the City of the Purchase Price is an all- inclusive settlement and constitutes the full and complete consideration and payment of just compensation for EMWD's acquisition of the Subject Easement. Said Total Compensation relieves EMWD of any further obligations or claims for compensation in connection with EMWD's acquisition of the Subject Easement for the construction of the EMWD Project, in the manner proposed. This waiver by the City of claims for further compensation in connection with EMWD's acquisition of the Subject Easement does not extend to and is not intended to extend to claims related to or alleged to arise out of the negligence on the part of the EMWD, its agents or contractors, in connection with the physical construction of the EMWD Project, as planned and designed. ' 13. Right of Termination. Notwithstanding anything to the contrary contained 12 1 1086-0004\17141 71v L doe ' herein, and without limiting any other right of termination for the benefit of EMWD contained herein, the EMWD shall have the right, in the exercise of its sole and absolute discretion and upon written notice to the City to terminate this Agreement (a) at any time prior to the expiration of the Due Diligence Period for any reason or no reason whatsoever, and (b) if it determines not to acquire the Subject Easement pursuant to Section 3. 14. Evidence in Court ProceedinE• The parties agree that the total Purchase Price of $27,150 or any inference of per square foot value of the Subject Easement based on said Purchase Price will not be admissible as evidence of the fair market value of the City Parcel, Subject Easement or any portion thereof, in any eminent domain or other proceeding or litigation concerning the City Parcel, Subject Easement or any portion thereof. 15. Notices. All notices and demands will be given in writing by certified or registered mail, postage prepaid, and return receipt requested, or by overnight carrier. Notices will be considered given upon the earlier of (a) two business days following deposit in the United States mail, postage prepaid, certified or registered, return receipt requested, or (b) one business day following deposit with an overnight carrier service. A copy of all notices will be sent to Escrow Holder. The parties will address such notices as provided below or as may be amended by written notice: CITY: City of Temecula 41000 Main Street Temecula, California 92590 Attention: Aaron Adams, City Manager COPY TO: Richards, Watson & Gershon Attention: Peter M. Thorson, City Attorney 355 South Grand Avenue, 40th Floor Los Angeles, California 90071 -3101 EMWD: Eastern Municipal Water District 2270 Trumble Road Perris, California 92570 Attention: Corinne Galloway, SR/WA, R/W -NAC COPY TO: 16. Miscellaneous. a. Further Documents. Each party will, wherever and as often as it shall be requested by the other party, execute, acknowledge, and deliver, or cause to be executed, acknowledged, and delivered, such further instruments and documents, as may reasonably be necessary in order to complete the sale, conveyance, and transfer herein provided and to do any and all other acts and to execute, acknowledge, and deliver any and all documents as may be ' requested in order to carry out the intent and purpose of this Agreement, including escrow 7- 11086 -0004 \1714171 v I.doc ' instructions and related documents if the parties determine an escrow is necessary to effect the transaction contemplated by this Agreement. b. Amendments. Any amendments to this Agreement will be effective only when duly executed by both EMWD and the City. C. Applicable Law. This Agreement will be construed and interpreted under, and governed and enforced according to the laws of the State of California. d. Entire Agreement. This Agreement supersedes any prior agreement, oral or written, and together with the Exhibits hereto and any agreements delivered pursuant hereto, contains the entire agreement between EMWD and the City on the subject matter of this Agreement. No subsequent agreement, representation or promise made by either party hereto, or by or to any employee, officer, agent or representative of either patty, will be of any effect unless it is in writing and executed by the party to be bound thereby. No person is authorized to make, and by execution hereof EMWD and the City acknowledge that no person has made, any representation, warranty, guaranty or promise except as set forth herein; and no such agreement, statement, representation or promise that is not contained herein will be valid or binding on EMWD or the City. e. Successors and Assigns. This Agreement will be binding upon and inure to the benefit of the heirs, executors, administrators, successors and assigns of the parties hereto. ' f Time of Essence. The parties acknowledge that time is of the essence in this Agreement. g. Counterparts and Facsimile and Electronic Signatures. This Agreement may be executed simultaneously in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. For purposes of this Agreement, facsimile and electronic signatures will be deemed to be original signatures. It. Remedies Not Exclusive and Waivers. No remedy conferred by any of the specific provisions of this Agreement is intended to be exclusive of any other remedy and each and every remedy will be cumulative and will be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or otherwise. The election of any one or more remedies will not constitute a waiver of the right to pursue other available remedies. i. Interpretation and Construction. Each party has reviewed this Agreement and each has had the opportunity to have its respective counsel and real estate advisors review and revise this Agreement and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not apply in the interpretation of this Agreement or any amendments or exhibits thereto. In this Agreement the neuter gender includes the feminine and masculine, and singular number includes the plural, and the words "person" and ' "party" include corporation, partnership, firm, trust, or association wherever the context so requires. The recitals and captions of the Sections and Subsections of this Agreement are for In i toss- aoaa\n is rn v ].doc ' convenience and reference only, and the words contained therein will in no way be held to explain, modify, amplify or aid in the interpretation, construction or meaning of the provisions of this Agreement. j. Attorneys' Fees. If either party hereto incurs attorneys' fees in order to enforce, defend or interpret any of the terms, provisions or conditions of this Agreement or because of a breach of this Agreement by the other party, the prevailing party, whether by suit, negotiation, arbitration or settlement will be entitled to recover reasonable attorneys' fees from the other party. k. Severability. If any part, term or provision of this Agreement is held by a court of competent jurisdiction to be illegal or in conflict with any law, the validity of the remaining provisions will not be affected, and the rights and obligations of the parties will be construed and enforced as if this Agreement did not contain the particular part, term or provision held to be invalid. 1. Exhibits. The exhibits and schedules attached hereto are incorporated in this Agreement by reference herein. IN WITNESS WHEREOF, this Agreement is effective as of the day and year first written above. I[Signatures on Next Page] i 11086. 0004 \1714171vt.dm MI L—. BUYER EASTERN MUNICIPAL WATER DISTRICT, a public agency of the State of California Dated: 2 It L ATTEST: i Rosemarie V. oward. Secret of the Eastern Municipal Water District and the Board of Directors thereof 11086 -000a\ m a n 1 v i. a« By: Paul D. Jo es II, P.E. General Nknager -10- ISELLER CITY OF TEMECULA, a municipal corporation Dated: ATTEST: Randi Johl- Olson, JD, MMC City Clerk Approved as to form: ' RICHARDS, WATSON & GERSHON u Peter M. Thorson, City Attorney 1 1086 -0004\ 171417 IV I,doc Maryann Edwards, Mayor EXHIBIT "A" EASTERN MUNICIPAL WATER DISTRICT SEWER EASEMENT W.O. 12839 APN: 922- 100-031 GRANTOR: CITY OF TEMECULA, A GENERAL LAW CITY LEGAL DESCRIPTION THAT PORTION OF PARCEL 1 AND OF LOT "C' OF PARCEL MAP 7674, IN THE CITY OF TEMECULA, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS SHOWN ON THE MAP THEREOF FILED IN BOOK 86 OF PARCEL MAPS AT PAGES 50 AND 51, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS: BEGINNING AT THE MOST NORTHERLY CORNER OF SAID PARCEL 1, BEING THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHERLY AND HAVING A RADIUS OF 40.00 FEET, TO WHICH A RADIAL LINE BEARS NORTH 45 °29'34" WEST; ' THENCE NORTHEASTERLY ALONG SAID CURVE AND THE NORTHERLY LINE OF SAID LOT 'C" THROUGH A CENTRAL ANGLE OF 46 °26'25', AN ARC DISTANCE OF 32.42 FEET; THENCE LEAVING SAID NORTHERLY LINE AND NON - TANGENT FROM SAID CURVE, SOUTH 22 028'31" WEST 73.96 FEET TO THE SOUTHERLY LINE OF THE LAND DESCRIBED AS "PARCEL C' IN THAT CERTAIN FINAL ORDER OF CONDEMNATION RECORDED MAY 8, 1998 AS INSTRUMENT NO. 182245 IN THE OFFICIAL RECORDS OF SAID COUNTY; THENCE ALONG SAID SOUTHERLY LINE SOUTH 79 °18'52° WEST 33.55 FEET TO THE BEGINNING OF A CURVE CONCAVE SOUTHERLY AND HAVING A RADIUS OF 327.00 FEET; THENCE CONTINUING WESTERLY ALONG SAID SOUTHERLY LINE AND SAID CURVE THROUGH A CENTRAL ANGLE OF 06 00832" AN ARC DISTANCE OF 35.06 FEET TO THE NORTHWESTERLY LINE OF SAID PARCEL 1, BEING THE CUSP OF A CURVE CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 100.00 FEET, TO WHICH A RADIAL LINE BEARS NORTH 58 034'54" WEST; THENCE NORTHEASTERLY ALONG SAID CURVE AND SAID NORTHWESTERLY LINE THROUGH A CENTRAL ANGLE OF 13 °05'20" AN ARC DISTANCE OF 22.84 FEET; Page 1 of 2 ' EMWD EXHIBIT'A ": SEWER EASEMENT APN: 922 - 100.031 THENCE CONTINUING ALONG SAID NORTHWESTERLY LINE NORTH 44 °30'26" EAST 74.28 FEET TO THE POINT OF BEGINNING. THE ABOVE DESCRIBED PARCEL CONTAINS APPROXIMATELY 2857 SQUARE FEET. EXHIBIT 'B" ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF. THIS REAL PROPERTY DESCRIPTION HAS BEEN PREPARED BY ME, OR UNDER MY DIRECTION, IN CONFORMANCE WITH THE PROFESSIONAL LAND SURVEYORS' ACT. exander E. Gonzalez P.L.S. 7692 Date o 2d 14— 1 u} 7 LS 7692 ' CK �.EXP. 'Z•sr• Page 2 of 2 40 0 40 Scale 1' — 40 n M1 =WTO M�APON1011 aF PM 1 MID IDT C A4 SNO811 011 PAR= WV 787+ RID N W01f PMaFS 50 MD SAY 64111 aF lb ® BASIS OF BEARING Ta B.se of ffMlers FOR Tle PW s TIE 7IE OENIOORE v Emr s00 1 n slow W PARI'R YMP I0. 1 M ON f1[ N BOOM W. Pm 50 MID 81 CF PMRm Y1P3, Sao U S ll RM]ISDE CO W* OYiONM SIID IlE BF:tltf MORM KSDYB' EA51 Ott) N M 0110=D 0N11 PER itwv, ORDER OF 001NOBU710I BY 11E COY W T dn" PER Duc 1 RELORNT 5-Bi8 MB tBTWRWNf I 182245. 0A (IM N m REpORO am PER PMRCEL YM No. 7874. ON m N BOOK a4 PMOEB SO mu 51 OF PARCEL WPB. R0001✓QS w RNEIt90E C01N1Y. CAIi01MM EXHIBIT "B" o� He 999/40 °44 P.O.B. MOST IOR11MY CODFR OF PARM 1-. S') IrEv (S 7SW2Y E 65.10- R1 k R2) APN: 2-100-0]1 4 A59 RI) \ PARdF -L 1 4ri7. ,y O PM 7674 F no 992/23 86/50 -51 NR2 UNDeR MY DIREOTIOM Lvkc7r,TL7e o Iieaae EXPRiE�� 12/ ORtN3 6-_71/15 111 �p LAND g P !_1O �W�M m IE I N0.5fY- 7KJl —N08 EASTERN MUNICIPAL WATER DISTRICT Rs Q m O . CY1FNNu F1pv.r m nn v iomaw. + anoK uv c.n City :.PN 922- 100 -031 Exhibit "C" City APN 922 - 100 -031 The City parcel consists of Lot C & Lot 1 as highlighted. The EMWD legal description and plat (Exhibits A & B) must include both Lots. CIS Sq. Ft. = 3100 +/- A.E. Gonzalez, PLS 7692 EMWD Right of Way Program Manager hup Pareprod I /espnel_client/FS It1/WebADF /PrintTaskl.ayoufl emplateVdefault. htmj I I/N201 3 1 .0324 PM( Exhibit "D" ' RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Eastern Municipal Water District P.O. Box 8300 Penis, CA 92572 -8300 Attn: Right of Way Department This Document Must Be Signed in Presence of Notary & Notarized. W.O.: 12839 RB- 5682 No Recording Fee Required Pursuant to Government Code Section 27383 GRANT OF EASEMENT FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, CITY OF TEMECULA, A GENERAL LAW CITY, (hereinafter referred to as "Grantor") does hereby grant to EASTERN MUNICIPAL WATER DISTRICT, a public agency of the State of California, its successors and assigns (hereinafter referred to as "Grantee") a perpetual non- exclusive easement and right of way to construct, enlarge, reconstruct, remove and replace, operate, inspect, maintain, repair, improve and relocate, sewage transmission and collection facilities, including, but not limited to, gravity pipelines, pressure pipelines, manholes, connections, and appurtenant equipment for the collection and transmission of sewage, in, on, over, under, upon, along, through and across the property hereinafter described, together with reasonable right of access to and from said easement for the purpose of exercising the rights granted in said easement. Said easement shall be in, under, over and across that certain property situated in the County of Riverside, State of California, described as follows: (SEE EXHIBITS °A" AND 'B" ATTACHED HERETO AND MADE A PART HEREOF) The foregoing easement shall include: (a) The temporary use of such adjacent land of Grantor as is necessary to install the facilities provided for under the term of the easement granted herein: and (b) The right to enter upon and pass and repass over and along said strip or strips of land, and to deposit tools, Implements and other materials thereon by Grantee, its officers, agents and employees, and by persons under contract to construct said pipeline or pipelines, and their employees, whenever and wherever necessary for the purpose of exercising the rights herein granted. Grantor retains the right to the use of the land described herein except as to any use in derogation of the easement contained herein, and specifically agrees that no trees shall be planted thereon and no buildings or other structures of any kind will be placed, constructed or maintained over the real property described herein. Any work by Grantor, or any one working through or under Grantor, affecting the surface or subsurface of the ground subject to this easement shall be performed only after giving written notice by certified mail, postage paid, addressed to Grantee at ' Grantee's office setting forth the proposed changes in detail. Such notice is to be given to the Grantee at least thirty (30) business days prior to commencement of such work and is subject to approval by Grantee. Form: SEWER Page 1 of ' It is understood that the permanent easements and the rights of way above described shall be acquired subject to the rights of the Grantor, Grantor's successors, heirs and assigns, to use the surface of the real property within the boundaries of such easements and rights of way. It is also understood that the permanent easements and rights of way above described are subject to any encumbrances and easements of record as of the date of execution of this Grant of Easement. It is further understood that any use of the surface rights by Grantor, and Grantor's successors, heirs and assigns, shall be deemed a continuing permissive use allowed by Grantee, its successors, heirs and assigns, and each successor -in- interest of the Grantor, by acceptance of a conveyance of said property or interest therein admits and agrees that any such use is a continuing permissive use. It is understood that each and every right and privilege hereby granted is free and alienable. Notwithstanding the foregoing, it is understood and agreed that this Grant of Easement shall not be construed as a Grant of Fee Title. Grantee, its successors and assigns, shall restore, or cause to be restored, the surface or subsurface of the real property hereinabove described to the condition said property was in as of the time of performance of any enlargement, construction, reconstruction, removal and replacement, operation, inspection, maintenance, repair, improvement and relocation, and such restoration shall be performed with due diligence and dispatch. IN WITNESS WHEREOF, this instrument has been executed this day of 20 GRANTOR: CITY OF TEMECULA, A GENERAL LAW CITY DATE: BY: (TYPE OR PRINT NAME & TITLE) DATE: BY: (TYPE OR PRINT NAME & TITLE) Form: SEWER Page 2 of 3 11 ACKNOWLEDGMENT State of California County of On before me, , (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/hentheir authorized capacity(ies), and that by his/herttheir 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) ICERTIFICATE OF ACCEPTANCE u This is to certify that the interest In real property conveyed by Grant of Easement dated 20 from: CITY OF TEMECULA, A GENERAL LAW CITY to the EASTERN MUNICIPAL WATER DISTRICT, a public agency of the State of California, is hereby accepted by the undersigned officer or agent on behalf of the Board of Directors pursuant to authority conferred by Resolution No. 80 of the Board of Directors adopted on January 14, 1953, and the Grantee consents to the recordation thereof by its duly authorized officer or agent. EASTERN MUNICIPAL WATER DISTRICT DATE: BY: Rosemarie V. Howard, Secretary Of the Eastern Municipal Water District And the Board of Directors thereof (SEAL) Form: SEWER Page 3 of 3