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Contrat - McLain - 1980-12-19 ,RECO9DJNG REQUESTED pY AND MAIL TO BK ► 3.93 ° PO 709 4974 RECORDED ORANGE IN UNTYI AtIFORNIA Cos- s,1/4 SNNITP.-tr -bIS-uRtcT I EXEMPT I 'cam taco 2s C5 • s PM. FEB 4 '81 CcF=-Tis• M-�s� , CP. ?2&2& a A BRANCH,County Recorder AGREEMENT AND RESTRICTIVE COVENANT THIS AGREEMENT made and entered into this 19th day of December , 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 WIMBLEDON ASSOCIATES, a limited partnership, and WIMBLEDON VILLAGE ASSOCIATION, a nonprofit corporation, hereinafter called OWNER' E 'S S -E T -H t T_H- A- T WHEREAS DISTRICT is a public agency engaged in the collection, 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 per- form the public service of collection, transportation and dis- position and liquid waste, all as set forth in said Act and WHEREAS, OWNER is the applicant for services as provided for by DISTRICT on teal property currently being developed or proposed to be developed with improvements which will require sanitary sewer service, as said property is described in Ex- hibit 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 -1- BK .r 3 � u. u.r6 7 i 0 WHEREAS DISTRICT, in following sound planning and responsible fiscal practices must annex OWNER' s property to DISTRICT in order that that said property may be in the assess- ment district and WHEREAS , DISTRICT must require, as a condition to pro- viding 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 purchaser from OWNER, a condominium or cooperative homeowners 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 -3- BK ' � J 'JBFU 7 1 • or beneficiary under trust deed a tenant by sufferance or trespasser II It is understood and agreed by and between the partied hereto that the terms and conditions as set forth herein shall be applicable and effective to any sanitary sewer service provided 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 collections trans- portation 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 con- sideration as shall be hereinafter set forth This AGREE- MENT 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 the upkeep of collecting laterals manholes and pump stations if -4- BC 3938 n o - L. 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 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 onsite construction meets the DISTRICT s engineering standards and specifications All facili- ties in the public right-of-way shall be owned by DISTRICT and all facilities on private property 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 -5- I BK i � Quuru i i S with DISTRICT as provided for in DISTRICT Ordinance No 14 2 Application for annexation to DISTRICT and the pay- ment 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 Issued permit from the local agency having juris- diction for street excavation 6 Deposit with DISTRICT offices Orange County Sani- tation 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 governmental 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-setforth 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 -6- BK v v`I (� '> b nr 7 i ■ V f r 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 conditional 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 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 administra- tion costs repair maintenance upkeep replacement and catastrophe contingent 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 trans- portation and disposal of liquid waste The annual service charge as hereinafter set forth will be adjusted annually in accordance with cost calculations furnished by the Director of Finance of the DISTRICT based upon DISTRICT s annual budget 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 calculated as follows subject to annual budget adjustments as heretofore provided -7- un 1C, 9 08 pc 717 1 A minimum of Fifteen ($15 00) Dollars per single family unit 2 A minimum of Fifteen ($15 00) Dollars per thirty (30) fixture unit for commercial light industrial profes- sional administrative and all other uses not provided for herein 3 A minimum of $ per thousand (1 000) cubic foot capacity for manufacturing and heavy industrial The basic Fifteen ($15 00) Dollar charge set forth above and the charge for thousand (1 000) cubic feet set forth above is a minimum charge irrespective of the number of fixture units or cubic feet of capacity 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 -8- Qr 1 'J938ro 716 headquarters at 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 (5%) percent of said payment XI In the event that it becomes necessary for the COSTA MESA SANITARY DISTRICT to collect sewer service charges after the first two (2) years then the HOMEOWNERS ASSOCIATION agrees that the amount of such service charges attributed to each individual lot in Tract No 10275 shall be subjected to a special assessment lien to secure the payment of such charge The ASSOCIATION agrees to collect and remit such charges to the DIS- TRICT In the event of non-payment of such special assessment such lien will be subject to foreclosure as provided in Sec- tion 2924 of the California Civil Code XII It is further understood and agreed that OWNER will require its contractor constructing any portion of its laterals in the 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 XIII OWNER hereby agrees to protect, defend, indemnity and hold DISTRICT its elective board and officers and agents and employees, -9- BK i 3928pU i 1 7 harmless from and against any and all attorneys fees costs , ex- penses 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, resulting there- from arising out of the performance of this AGREEMENT by or on behalf of OWNER, including damages occasi,oned 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 , offi- cers agents or employees This indemnity and hold-harmless AGREE- MENT shall not apply to damages occasioned by the sole negligence of DISTRICT its 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 statutes 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 on behalf of OWNER OWNER may insure against the losses 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 XIV OWNER shall maintain or cause any contractor or subcon- tractor doing work in the public right-of-way, pursuant to this -10- .1 9-9nn 7 18 BK i 9 u ru 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 indemnity 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 can- celled without thirty (30) days ' advance notice of such cancella- tion to DISTRICT XV 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 event DISTRICT is allocated some property tax under any exchange formula developed with the County, said tax, if imposed against OWNER herien shall be credited against the annual service charge provided for in this AGREEMENT XVI All notice required to be given under this AGREEMENT shall be deemed given if mailed with prepaid postage or delivered -11- BK 1 .392813 ; 19 personally to the parties hereto at the following addresses OWNER WIMBLEDON ASSOCIATES 1470 Jamboree Road Newport Beach California 92660 DISTRICT Costa Mesa Sanitary District 77 Fair Drive Costa Mesa California 92626 XVII 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 performance of this AGREEMENT by OWNER or its successors in interest XVIII 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 attor- neys ' fees , to be determined by the presiding officer or judge in any of said proceedings IN WITNESS WHEREOF, we have hereunto placed our hands and seals on the day and year first above written COSTA MESA SANITARY DISTRICT Q ATTEST 1 President Secretary -12- . BK 13Q 720 guru OWNER WIMBLEDON ASSOCIATES , a limited partner- ship BY McLAIN DEVELOPMENT CO General Partner By "_ i_ / 4-,i . t_ -- Ralph 0 Arnesen , Executive Vice President WIMBLEDON VILLAGE ASSOCIATION . A California nonprofit corporation By � . C ^. resident , John P Cotton WIMBLEDON VILLAGE ASSOCATION ATTEST 1 p Y ldeL It. , 41 /-•-zh/ Secretary Paula Llanes APPROVED AS TO FORM to ey : he DISTRICT -1z- BK 1W93 & is i21 STATE OF CALIFORNIA) ) SS COUNTY OF ORANGE On December 19 , 1980 , before, the undersigned a Notary Public in and for said State personally appeared Ralph 0 Arnesen known to me to the Executive Vice President of McLAIN DEVELOPMENT CO the corporation that executed the within instrument and known to me to be the person who executed the within instrument on behalf of said corporation said corporation being known to me to be one of the partners of WIMBLEDON ASSOCIATES the partnership that executed the within instrument and acknowledged to me that such corporation executed the same as such partner and that such partnership executed the same WITNESS my hand and official seal -- --- / / 4 a;;,, a, OFFICIAL SE: _L j) � Si nature Zi+� - MILDRED i- McNEll ))} g / m�° NOTARY PUBLIC CALIFORNIA I -.Cr ORANGE COUNTY 4¢euM My Comm. expires JUL 23 1981 V Name typed or printed (seal) sic 13935 BPC 722 STATE OF CALIFORNIA ) ) ss COUNTY OF ORANGE On December 19 1980 before me the undersigned a Notary Public in and for said State personally appeared John P Cotton known to me to be the xxxxx President and Paula Lianas known to me to be the xxxx Secretary 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 if • • OFFICIAL SE. t Si naure / /,/ �� _ .e MILDRED .I. McNEI!IY Signature / waits NOTARY PUBLIC CALIFORNIA 1 - * 7 ORANGE MN My comm. expires JUL 28, 1981 Name (Typed or Printed) (This area for official notarial seal) BK 13938pc 723 STATE OF CALIFORNIA ) ss COUNTY OF ORANGE On December 30 1980 before me the undersigned a Notary Public in and for said State personally appeared James A Wahner known to me to be the xxxx president and Elvin Hutchison known to me to be the xxxx Secretary 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 � FLORINS REICHLE Signature_ tr 4��� NOTARY PUBLIC CALIFORNIA i PRINCIPAL OFFICE IN `;@,rf ORANGE CuUNTY My Commission Expires March 23, 1984 Florine T Reichle Name (Typed or Printed) (This area for official notarial seal) Ex h ,b,t " N. 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