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Contract - Canadian Indemnity - 1980-12-17 Recording requested by 40758 B K 1 4 0 0 1 PG 10 9 8 Fto.rine T Reichle Vita t0 Assistant Secretary EXEMPT RECORDED IN OFFICIAL RECORDS OF ORANGE COUNTY CALIFORNIA Costa Mesa Sanitary District C2 P.O. Box 1200 -425 PM MAR30 '81 Costa Mesa, CA 92623REEMENT AND RESTRICTIVE COVENANT LEE A. BRANCH. County Recorder THIS AGREEMENT made and entered into this / 7-7 day of Pee eM brf , 1980 by and between the COSTA MESA SANITARY DISTRICT, a public agency organized and existing under and by virtue of the Sanitary District Act of 1923 , hereinafter called "DISTRICT" and United California Bank. Trustee under Deed of Trust executed by The Canadian Indemnity Company for the benefit of the hereinafter called OWNER policyholders of The Canadian Indemnity Company within the United States, W I T N E S S E T H T H A T WHEREAS DISTRICT is a public agency engaged in the collec- tion , transportation and disposition of liquid waste disposal in its network of underground sewer installations in accordance with its powers to levy taxes annex property and perform the public service of collection, transportation and disposition of liquid waste all as set forth in said Act and WHEREAS OWNER is the applicant for services as provided for by DISTRICT on real property currently being developed or proposed to be developed with improvements which will require sanitary sewer service, as said property is described in Exhibit A attached hereto and WHEREAS, DISTRICT policy is to annex OWNER' S real property to DISTRICT resulting in the imposition of a tax to generate a portion of the income needed by DISTRICT for its operation and WHEREAS , after the passage of Assembly Bill 8 , Assembly Bill 1019 , Assembly Bill 2212 Assembly Bill 2376 , and Senate Bill 180 , taxes due to DISTRICT on completed annexations have been impounded by the County of Orange and BK 1400 it Po 1099 WHEREAS , pending an agreement between the County of Orange and all of the special districts within the County as to the methods and formulae to be followed in exchange of property tax between the affected districts and the County , as required by these legislative acts the Local Agency Formation Commission for the County of Orange has declined to approve certain annexations for a necessary act preceding annexation by DISTRICT, until the question of tax exchange has been resolved and WHEREAS , DISTRICT has declined to process annexations or applications for service without receipt of a portion of the property tax and has declined to operate DISTRICT at a financial loss and WHEREAS dependence upon a portion of the property tax to be allocated at the sole discretion of the County of Orange is deemed by DISTRICT as an unreliable source of revenue for DISTRICT operations and not in keeping with good planning and sound fiscal practices and WHEREAS, DISTRICT finds and declares that methods available to it for funding of the maintenance , repair, upkeep and replace- ment of its network of underground liquid waste collecting trans- porting and disposal system consists of two ( 2 ) , to wit interim service contracts with OWNER and persons or entities in like situations and ultimately an assessment district to insure suffi- cient revenue for DISTRICT' S operation and WHEREAS , DISTRICT, in following sound planning and respon- sible fiscal practices , must annex OWNER' S property to DISTRICT in order that said property may be in the assessment district and -2- BK 14001 PG 1' 100 WHEREAS , DISTRICT must require , as a condition to providing service as requested herein, compliance with all its ordinances rules , regulations and policies and must provide for methods and means for the effective administration of this AGREEMENT and for guarantees that periodic payments will be made and WHEREAS, the parties hereto desire to set forth their rights and obligations in connection herewith NOW, THEREFORE for and in consideration of the covenants herein contained performed and to be performed the parties hereto agree as follows I It is understood and agreed that OWNER, as used in this AGREEMENT shall mean the owner of the fee title at the time of the execution of this AGREEMENT any purchaser of the fee title from OWNER, or any other successor in interest of OWNER or pur- chaser from OWNER, a condominium or cooperative homwowner' s association providing its bylaws and CC&R' s authorize it to encumber real property for the purposes as expressed in this AGREEMENT or lessee of property having a ground lease of twenty- five (25 ) years or more OWNER as used in this AGREEMENT shall not include a lessee of land or improvements of less than twenty- five (25 ) years , a month-to-month tenant, a mortgagee or bene- ficiary under trust deed, a tenant by sufferance, or trespasser DISTRICT may, in its discretion, require a re-execution of this AGREEMENT by subsequent purchasers of the property from OWNER herein and OWNER agrees that if required by DISTRICT, it will condition any sale of the property subject to this AGREEMENT -3- BK 14001 PG 1 ' 01 upon the re-execution of this AGREEMENT by the purchaser if DISTRICT so requires II It is understood and agreed by and between the parties hereto that the terms and conditions as set forth herein shall be applicable and effective to any sanitary sewer service pro- vided by DISTRICT outside the jurisdictional limits of the DISTRICT but within the geographical limits of the City of Costa Mesa and within the zone of influence of the City of Costa Mesa but not otherwise in the territory of the County of Orange III DISTRICT proposes to provide collection, transportation and disposition of liquid waste disposal from OWNER' S property into the mains of DISTRICT in the public right-of-way under terms and conditions and for the considerations as shall be hereinafter set forth This AGREEMENT does not include the pickup and disposal of solid waste materials which must be arranged for separately by OWNER IV It is understood and agreed that the cost of construction of collecting laterals , including manholes and pump stations, if any, on OWNER' S property and to the connection to DISTRICT' S mains in the public right-of-way and the repair, maintenance and upkeep of collecting laterals, manholes and pump stations , if any, shall be borne by persons or entities other than DISTRICT DISTRICT agents shall nevertheless have the right to inspect the laterals constructed on OWNER' S property prior to connection with DISTRICT' S mains in the public right-of-way to insure that said construction -4- BK14001PG1102 meets all of the engineering standards and specifications of DISTRICT No connection with DISTRICT mains in the public right- of-way will be authorized unless and until DISTRICT Engineer certifies that on-site construction meets the DISTRICT' S engineer- ing standards and specifications All facilities on private prop- erty shall be owned by OWNER as defined herein V It is understood and agreed that acquisition of right-of- way , if any, shall be by persons or entities other than DISTRICT and shall be without cost to DISTRICT Proof of acquisition of right-of-way shall be provided to DISTRICT at the time of the DISTRICT Engineer' s inspection as set forth herein and prior to connection with DISTRICT' S mains in the public right-of-way VI It is understood and agreed that prior to the approval of DISTRICT for a connection to DISTRICT mains in the public right- of-way, OWNER shall have met the following conditions 1 The posting of inspection and administrative fees with DISTRICT as provided for in DISTRICT Ordinance No 14 2 Application for annexation to DISTRICT and the payment of the fees in connection therewith all as provided for in DISTRICT Ordinance No 14 3 Payment to DISTRICT of fees and charges as required by DISTRICT Ordinances No 6 and No 7 to the extent that the same are applicable to development proposed by OWNER, 4 Payment in advance of the first and second years ' service charge hereinafter provided for adjusted to a July 1/ June 30 fiscal year -5- BK 1 4 0 0 1 1 0 n 5 Issued permit from the local agency having jurisdic- tion for street excavation 6 Deposit with DISTRICT offices , Orange County Sanita- tion District, acreage and unit fees , if any 7 Proof that OWNER has obtained or caused to be obtained all necessary building and construction permits from any govern- mental agency having jurisdiction over OWNER S project, including the Coastal Conservation Commission, if applicable 8 Prepare or cause to be prepared and filed with the offices of DISTRICT such environmental impact report or reports or negative declarations as shall be required by any governmental agency having jurisdiction over the project The above set forth conditions imposed by DISTRICT before sanitary service will be provided may be made conditions on any subdivision map, parcel map approval of conditional use permit or approval of variance by any local agency having jurisdiction over improvements contemplated by OWNER on the property to be served as provided for in this AGREEMENT DISTRICT may decline service to OWNER herein until such time as the local agency having jurisdiction over subdivision maps, parcel maps , condi- tional use permits or variances as certified to the DISTRICT in writing that conditions relating to sanitary sewers as set out herein have been met VII It is understood and agreed by and between the parties hereto that in addition to the fees and charges required to be paid to DISTRICT prior to connection with DISTRICT' S mains in public right-of-ways , all as heretofore provided, there shall be -6- BK 1 4 0 0 1 PG 1 1 04 imposed a service charge payable annually adjusted to the fiscal year as heretofore provided and payable the first two ( 2 ) years in advance which said service charge is reasonably calculated to provide for OWNER' S share of DISTRICT administration costs repair , maintenance , upkeep replacement and catastrophe contin- gent funds on DISTRICT' S main line , laterals , pump stations, force mains , alarm systems and all other facilities maintained by DISTRICT in connection with the collection transportation and disposal of liquid waste The annual service charge as herein- after set forth will be adjusted annually in accordance with the United States Department of Labor, Bureau of Labor Statistics Consumer Price Index for All Urban Consumers for the Los Angeles/ Long Beach Average ( 1967=100) VIII The charge as heretofore provided for shall be on an annual basis with the initial payment to be for the first and second year in advance adjusted to the July 1/June 30 fiscal year and based upon the fixture units provided for in Ordinance No 6 or No 7 shall be as follows $ per single family dwelling $ per twenty (20) fixture units for commer- cial/light industrial $ /S, -frX per twenty ( 20 ) fixture units for profes- sional/administrative $ per one thousand ( 1 ,000) cubic feet for manufacturing/heavy industrial $ per twenty ( 20 ) fixture units for all other uses not included above -7- BK14001PG1105 Ix Subsequent to the payments made in advance as provided for in the previous paragraphs OWNER shall be billed quarterly in advance for services provided for in this AGREEMENT with advance billings to be for the following quarters First Quarter - July , August September Second Quarter - October, November December Third Quarter - January , February March Fourth Quarter - April, May , June X It is understood and agreed that invoices for services as provided for in this AGREEMENT will be mailed to OWNER at the address set forth hereinafter in this AGREEMENT or to any new mailing address provided to DISTRICT in writing at least fifteen (15 ) days before the beginning of each quarter Unless DISTRICT is notified of a change of address in writing , mailings shall be presumed completed when deposited, postage prepaid to the address set forth in this AGREEMENT Payments required for services as provided for in this AGREEMENT shall be due on the first day of each quarter and shall be mailed or delivered to DISTRICT' S head- quarters as the address as hereinafter set forth in this AGREEMENT Any payment not received in DISTRICT' S office by the fifteenth day of the first month of the quarter shall be deemed delinquent Any payment delinquent as set forth herein shall be subject to a late charge of five percent ( 5% ) of said payment XI It is understood and agreed that the service charge pro- vided for herein shall become on the first day of each quarter a lien upon the entire property subject of this AGREEMENT as here- tofore provided and shall be extinguished only upon the payment -8- BK 14001 PG 1 106 of service charge as provided for herein A certificate executed and acknowledged by a majority of the Board of Directors of DISTRICT stating the indebtedness is secured by a lien on the real property subject to this AGREEMENT shall be conclusive upon the Board and OWNER as to the amount of such indebtedness as of the date of the certificate in favor of all persons who rely thereon in good faith and such certificate shall be furnished to OWNER upon request at a reasonable fee not to exceed Fifteen Dollars ( $15 00 ) XII Any such lien may be foreclosed by an appropriate action in a court or in a manner provided by law for the foreclosure of liens under power of sale Any action in court brought to fore- close such a lien shall be commenced within one hundred and eighty ( 180 ) days following the recording of the certificate evidencing a lien In the event the foreclosure is under a power of sale , as in the case of a mortgage the Board of DISTRICT or any person designated by it in writing shall be deemed to be acting as the agent of the lienor and shall be entitled to actual expenses and such fees as may be allowed by law or as may be prevailing at the time the sale is conducted Such sale shall be conducted in accordance with the provisions of Section 2924 , sub-Sections (a) , ( b) and (c ) , of California Civil Code appli- cable to the exercise of power of sale of mortgages and deeds of trust, or any other manner permitted by law XIII It is further understood and agreed that OWNER will require its contractor constructing any portion of its laterals in the -9- BK14001PG1107 public right-of-way to comply with Sections 6500 , through and including 6707 of the Labor Code Section 42105 of the Govern- ment Code the Davis/Bacon Act and such of the laws rules and regulations as are applicable federal state and local, to the construction of the said facility XIV OWNER hereby agrees to protect defend , indemnify and hold DISTRICT, its elective board and officers and agents and employees harmless from and against any and all attorneys fees , costs expenses or damages of any nature by reason of injury sustained by any person , including death at any time, resulting therefrom or by reason of loss of use of , injury to or destruction of property , including consequential damages of any nature, result- ing therefrom arising out of the performance of this AGREEMENT by or on behalf of OWNER including damages occasioned by or allegedly occasioned by joint or contributory negligence or omission or affirmative action in connection with supervision or direction of the work by DISTRICT, its elective or appointed boards, officers , agents or employees This indemnity and hold-harmless AGREEMENT shall not apply to damages occasioned by the sole negligence of DISTRICT it elective boards officers , agents or employees , but shall extend to any and all obligations and liabilities under any statutes , laws or regulations pertaining to provisions of a safe place for employment of workers or any similar statures , laws or regulations with respect to injury sustained, including death at any time resulting therefrom by any employee of OWNER OWNER'S contractors or subcontractors or others performing under this AGREEMENT or behalf of OWNER OWNER may insure against the losses -10- BK14001PG1108 as provided for in this paragraph however DISTRICT does not and shall not waive any rights against OWNER which he may have by reason of the aforesaid hold-harmless agreement because of the acceptance by DISTRICT of the deposit with DISTRICT by OWNER of any insurance policy obtained for this purpose XV OWNER shall maintain or cause any contractor or subcon- tractor doing work in the public right-of-way pursuant to this AGREEMENT to take out and maintain, during the life of any con- struction project workers ' compensation insurance and OWNER agrees to require contractor and subcontractors , if any to indemnify DISTRICT for any damage resulting to it from failure of either OWNER or OWNER' S contractor or subcontractors to take out and maintain such insurance For that portion of any work to be done in the public right-of-way said workers compensation insurance shall name DISTRICT as an additional insured and said policy shall provide that the insurance provided for therein may not be cancelled without thirty ( 30) days advance notice of such cancellation to DISTRICT XVI The term of this AGREEMENT shall be from the date hereof until DISTRICT has initiated and completed an assessment district and OWNER' S property is placed on the assessment roll for the imposition of a real property tax to pay for the services rendered by DISTRICT in this AGREEMENT This AGREEMENT shall not be ter- minated by annexation of the property to DISTRICT and the eventual development of a formula for the exchange of property tax between DISTRICT and the County of Orange, provided, however that in the -11- BK 14001 P6 1 109 event DISTRICT is allocated some property tax under any exchange formula developed with the County said tax if imposed against OWNER herein, shall he credited against the annual service charge provided for in this AGREEMENT XVII ti All notice required to be given under this AGREEMENT shall be deemed given if mailed with prepaid postage or delivered personally to the parties hereto at the following addresses OWNER United California Bank, Trustee for The Canadian Indemnity Company P. 0. Box 3667 Terminal Annex _ Los Angeles , Ca. 90051 _ Attention W F Lewis W9-4 DISTRICT Costa Mesa Sanitary District 77 Fair Drive Costa Mesa California 92626 V. XVIII This AGREEMENT shall be deemed as a covenant running with the land, and the duties and obligations provided for herein cannot be assigned or otherwise conveyed in any manner that will excuse the peformance of this AGREEMENT by OWNER or its successors in interest XIX In the event of legal action, including suit arbitration, administrative hearing , or other legal proceeding the prevailing party shall be entitled to legal costs , including reasonable attorneys ' fees to be determined by the presiding officer or judge in any of said proceedings -12- BK14001P @1110 IN WITNESS WHEREOF , we have hereunto placed our hands and seals on the day and year first above written COSTA MESA SANITARY DISTRICT 1 \ J Presi•ent ATTEST Assistant Secretary OWNER United California Bank Trustee under Deed of Trust executed by The Canadian Indemnity Company for the benefit of the policyholders of The Cana.iam Indemnity Company within the it•i States APPROVED AS TO FORM Ilk ,, By , t ii. • V . —u- t.- Vice resident At�torn y or the DISTRICT By � /� Trust Cicer —13— BK 1 4 0 0 1 P6 1 1 1 1 STATE OF CALIFORNIA ) SS COUNTY OF Los Angeles ) On December 17,_19R0 before me the undersigned a Notary Public in and for said State, personally appeared James E. Hanna , known to me to be the Vice President, and W. F. Lewis known to me to be the Trust Officer Mxt( OXy of the corporation that executed the within instrument, and known to me to be the persons who executed the within instrument on behalf of the corporation therein named and acknowledged to me that such corporation executed the within instrument pursuant to its bylaws or a resolution of its board of directors WITNESS my hand and official seal OFFICIAL SEAL Signa �__." —�j 4 y S'HEILAH D MORRIS ..� NOT RY PUBLIC CALIFORNIA � o PRINCIPAL OFFICE IN i.ter LOS ANGELES COUNTY Name (Typed or Printed) My Commission Expires Dec. 30, 1982 BK14 (Dal P61112 STATE OF CALIFORNIA ) ) SS COUNTY OF ORANGE On December 31, 1980 before me the undersigned a Notary Public in and for said State personnaly appeared James A Wahner known to me to be xxxx President and Florine T Reichle known to me to be the Assistant Secretary of the Costa Mesa Sanitary District that executed the within Instrument on behalf of the District therein named and acknowledged to me that such District executed the within Instrument pursuant to its bylaws or a resolution of its Board of Directors WITNESS my and offic ' a = 1 c•:y OFFICIALSBAL • 74�t ELENOR NI.EVANS • !; -• +.1 NOTARY PUBLIC CALIFORNIA G ORANGE COUNTY Signature ? , My Comm' Expires May 9.1983 • • . • _ . �Vvwwww^ Eleanor P1 Evans Name (Typed or Printed) (Seal) or BK14001P61113 The land referred to herein is described as follows: PARCEL A PARCEL 1, IN THE CITY OF COSTA MESA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 149 PAGES 29 AND 30 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY EXCEPTING THEREFROM WATER, WATER RIGHTS, CLAIMS OR TITLES TO WATER ALSO EXCEPT ALL OIL, GAS, AND OTHER HYDROCARBONS AND MINERALS NOW AND HEREAFTER IN, ON OR UNDER THAT PART OF THE PROPERTY LYING BELOW A DEPTH OF 500 VERTICAL FEET BELOW THE SURFACE OF THE PROPERTY, BUT WITHOUT ANY RIGHT OF ENTRY UPON SAID LAND OR 'WITHIN THE TOP 500 FEET THEREOF FOR 4NY PURPOSES WHATSOEVER AS RESERVED IN THE DEED FROM C J SEGERSTROM & SONS, A CALIFORNIA GENERAL PARTNERSHIP RECORDED AUGUST 28, 1980 PARCEL B RECIPROCAL EASEMENT FOR A COMMON DRIVEWAY, INGRESS, EGRESS AND PUBLIC UTILITY PURPOSES; ACCESS EASEMENTS TO SOUTH COAST DRIVE AND INCIDENTAL PURPOSES, ALL AS MORE PARTICULARLY SET FORTH IN THAT CERTAIN EASEMENT AGREEMENT RECORDED AUGUST 28, 1980 EXCEPTING ANY PORTION INCLUDED WITHIN PARCEL A ABOVE Exhibit A _, _. . _:. ;:• ✓....I'i< ='r' c".f., .�+tea++