Contract - Rutter - 2006-04-19 Recorded in Official Records, Orange County
• EXEMPT RECORDING Tom Daly Clerk-Recorder
II IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIINO FEE
REQUESTED PURSUANT TO
SECTION 6103, GOVERNMENT 2006000589224 10:33am 09/01/06
CODE 121 159 Al2 7
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AND WHEN RECORDED MAILTO-
Costa Mesa Sanitary District
Joan Revak
Board Secretary Program Manager/
Clerk of the District -11
628 W 19th Street
Costa Mesa, CA 92627 2716 THIS SPACE FOR RECORDER'S USE ONLY 1J�
SEWER AGREEMENT
This Agreement is made and entered into this 16114' day of_Apia 2006,
by and between Rutter Development Corporation, a California corporation,
hereinafter referred to as `FILTH-ER' and the Costa Mesa Sanitary District, a
• special district established under the Sanitary District Act of 1923, hereinafter
referred to as `DISTRICT'
Recitals
045
WHEREAS, RUTTER desires to constructer residential town homes on
the property at 1901 Newport Blvd. Costa Mesa, and desires to receive sanitary
sewer service from the DISTRICT the local sewer agency and
WHEREAS, the property at 1901 Newport Blvd is already developed to its
master planned density containing a 125,000 square foot commercial building on
a site that allows a maximum 122,000 square foot commercial building under the
City of Costa Mesa's 1990 General Plan and
WHEREAS the DISTRICT's Sewer Master Plan adopted the City of Costa
Mesa's 1976 level of development and does not provide sewer capacity for
developments such as RUTTER'S development that are above said master
planned density and
WHEREAS, the DISTRICT must consider that other commercial
developments on the sewer systems serving 1901 Newport Blvd. may also
request increased densities above the master planned level; and
•
1
• WHEREAS DISTRICT's Operations Code Sections 7 06 010 and
7.06 020 require developers to participate in the cost of providing additional
sewer capacity for developments above master planned levels, said code
sections being based on the concept that the developers of the projects with
increased densities are responsible for the cost of providing additional sewer
capacity not the existing property owners; and
WHEREAS, RUTTER's civil engineer Hunsaker & Associates prepared a
Sewer Capacity Study dated October 15 2002, that recommended subject
development sewer to the existing DISTRICT sewer system in Newport Blvd.
Southbound rather than to the system in Bernard Street due to excess sewer
capacity being available in DISTRICT's system in Newport Blvd. Southbound;
and
WHEREAS, at a Special Meeting held November 20 2002, DISTRICT's
Board of Directors accepted said sewer capacity study and approved the sewer
tie in of said development to the existing sewer system in Newport Blvd.
Southbound without the requirement of additional construction or in-lieu fees due
to the availability of excess sewer capacity. and
WHEREAS RUTTER subsequently became aware that tie in to said
existing sewer system in Newport Blvd Southbound requires the acquisition of an
off-site sewer easement at a cost that is excessive to RUTTER; and
• WHEREAS RUTTER now desires to connect said development to the
existing sewer system in Bernard Street, said system including sewers in
Hamilton Street, Thurin Avenue and Victoria Street that are projected to flow at
approximately full capacity upon future build out of the area, and
WHEREAS, the Regional Water Quality Control Board (RWQCB) has
adopted Waste Discharge Requirements (WDR) that seek to limit sewer systems
that flow above design capacity— design capacity being approximately one-half
of full capacity— in order to decrease sewer spills that may contaminate waters of
the State, and
WHEREAS the RWQCB may institute notice of violations and significant
fines for sewer spills; and
WHEREAS, District has adopted a Sewer System Management Plan to
comply with the WDR; and
WHEREAS, DISTRICT is planning on freeing up capacity in said sewers
in Hamilton Street, Thurin Avenue, and Victoria Street through its capital project
identified as Project No. 101 Westside Pumping Station Abandonment, said
project being a lengthy multi-year multi-million dollar project; and
•
2
• WHEREAS RUTTER agrees to pay DISTRICT in-lieu fees of $100 000 as
its contribution to said Project #101 instead of constructing the necessary sewer
improvements;
Now therefore, RUTTER and DISTRICT agree as follows:
1 Recitals. The above written Recitals state reasons that are germane to
this Agreement and are hereby made a part of this Agreement.
2. Property Subiect To This Agreement. The property subject to this
Agreement (hereinafter sometimes referred to as 'Said Property") is described in
Exhibit A, attached hereto and incorporated herein as if set out in full.
3. Capacity Fees. The in lieu fees paid by RUTTER are in the nature of
capacity fees and are in addition to the normal sewer plan check fees, inspection
fees, Orange County Sanitation District connection charges, and fixture fees
collected by DISTRICT
4 Fees Paid Nonrefundable. Said in-lieu fees are non-refundable and will be
used to support engineering fees, environmental studies, legal fees in preparing
this Agreement and construction of the improvements contemplated in said
• Project No 101 Said in-lieu fees and all other fees are due prior to the approval
of the sewer plans for said development at 1901 Newport Blvd.
5. No Reimbursement. The capacity fees paid pursuant to this Agreement
and District Operations Code Chapter 7 06 fairly approximate the additional
impact of the project on District's system and RUTTER is not paying for over
sizing to benefit other property Accordingly RUTTER shall not be eligible for
reimbursement from other developers of property
6. Acceptance Of Benefits Waives Right To Challenge. The acceptance of
the right of connection pursuant to this Agreement waives the right to challenge
the provisions of this Agreement.
7 Indemnification. RUTTER agrees to indemnify defend and hold the
DISTRICT harmless from any and all claims or liability arising out of DISTRICT's
approval of this Agreement or RUTTER's connection and subsequent use of
DISTRICT's sewer line, including any sewer spills caused by their negligent
construction. Said indemnification, defense and hold harmless obligations shall
extend to any enforcement actions brought by government agencies, to the
extent not prohibited by law
8. Binding On Successors. These rights and obligations shall inure to the
successors in interest of RUTTER and be binding on its heirs, successors and
• assigns and to future owners and persons having an interest in said Property
3
• 9 Recording. This Agreement shall be recorded on the property with the
County Clerk and the obligations and rights shall run with the land.
10 Authority Each party signing represents and warrants that he/she has the
authority to enter into this agreement and to bind the entity on whose behalf
he/she signs.
Rutter Development Corporation Costa Mesa Sanitary District
tat
sidont
Title _p l__jS,�t Zk'
Secretary
• Title:
•
4
• Exhibit "A"
Legal Description of Rutter Development Property
Lots 1 and 2 of Tract No 16382 in the City of Costa Mesa, County of
Orange State of California, as shown on a map thereof recorded in
Book 863 pages 33-37 of Miscellaneous Maps, records of Orange
County
•
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
I
State of California
Pt ii. ss.
1ICounty of Orange
On April 20,l 2006 before me, Joan Revak, Notary Public
p Date Name nd Title of Offic (e g 'Ja Do Notary Public')
D
ip personally appeared James Ferryman and Arthur Perry
pi 1 Name(s)of Sign r(s)
1 E personally known to me 3
❑ proved to me on the basis of satisfactory 4
evidence b'
3
to be the person& whose name& is/1 ''
A subscribed to the within instrument and
acknowledged to me that he/she/ef executed ''
the same in his/her hei authorized
•
capacity,(t j) and that by his/her thei 1
JOAN y signature on the instrument the person(), or 3'
f' ,L. CommWbn01525560 the entity upon behalf of which the persons e
PA "ct•.tr Notary Pubic Canaria _ acted, executed the instrument. n
ip
.*- dome County I'.
My Comm.6rpWS Dec B.2000 WITNESS my hand and official seal.
Cf'PlPla Notary Seal Abov aellielewi t o of Notary Publs II'�I
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document 1
Description of Attached Document 1
I' Title or Type of Document: Sewer Agreement between CMSD & Rutter Development Corp.
I Document Date. April 19, 2006 Number of Pages: 5 4'
Signer(s) Other Than Named Above: Ray Rutter �1
1
Capacity(ies) Claimed by Signer
Signer's Name. James Ferryman & Arthur Perry RIGHTTHUNEPRINT
El Individual ToPO�F'SIGNERB
P ❑ Corporate Officer—Ttle(s): 1
❑ Partner—❑ Limited ❑ General
1 ❑ Attorney in Fact
pi El Trustee
❑ Guardian or Conservator
l Other President & Secretary of the Costa Mesa Sanitary
District
�; Signer Is Representing: Costa Mesa Sanitary District
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•
ACKNOWLEDGMENT
State of California
County of orange
On 8-23-06 before me, Carol A . Lustig , a Notary
(here insert name and title of the officer)
personally appeared Ray Rutter
•
personally known to me (= - - - - - - - - - - - - • ' - - - - ' - - ° - ' - to be
the persons) whose name(s) isfacs subscribed to the within instrument and
acknowledged to me that he/stratlieth executed the same in his/had-their-authorized
• capacity(ies), and that by his/,err signature(s) on the instrument the person(s.),
or the entity upon behalf of which the person(*) acted executed the instrument.
WITNESS my hand and official seal. aR�
y �{�, qon N 1J92699
tit :i Notary CaYromia
`.r._^ orange County
Signature L )L►S L .t. . . A.. „it
AAyCarnai.Ezpres Wn 6,200
gill
(Seal)
•