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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 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 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 • • 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 x.2-c ct-.=cc:.c- cc,,K. u.;c,vc,- crc>ec>c<.,•c.cccevcc,,cc c.crc^c_.cevc.c,ccri,cc.7ct. r •cc.ux:cx--c'�,,c4 '.e.c.c-0.,.a, • ®1999 National No ary Assooatm 9350 Do Solo Av PO Bo 2402•Cha wan,CA 91313-2402•www rationale ary org Prod No 5907 Reome Call Toll-Free 1-0We76-682 • 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) •