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Water & Sewer Allocations - Pacific Coast Iron and MetalsRECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City Clerk City of Gilroy 7351 Rosanna Street Gilroy, CA 95020 DOCUMENT: 21667285 Pages 9 Fees.... 39.00 Taxes.. Copies. AMT PAID 39.00 REGINA ALCOMENDRAS SANTA CLARA COUNTY RECORDER Recorded at the request of Recording Service SPACE ABOVE THIS LINE FOR RECORDER'S USE AGREEMENT FOR WATER USE AND SEWER USE ALLOCATIONS FOR THE PROPERTY LOCATED AT 320 AND 340 OBATA COURT (New Service) RDE # 007 5/14/2012 1031 AM This Agreement is made and entered into by and between CITY OF GILROY, a municipal corporation ("CITY'), in the County of Santa Clara, California, and Pacific Coast Iron and Metals, Inc., a California corporation ( "OWNER "). Upon the signature of CITY and OWNER, this Agreement shall be deemed to have taken effect as of 8/26/10 (`EFFECTIVE DATE "). RECITALS: WHEREAS, CITY operates the municipal water supply system and the municipal sewer treatment plant and said water supply system and sewer treatment plant have a finite capacity to provide service; and . WHEREAS, City Ordinance No. 2009 -01 and City Ordinance No. 2009 -02 ( "ORDINANCES "), now codified, respectively, in the Gilroy City Code at Chapter 27, sections 27.76 through 27.80, and Chapter 19, section 19.115 through 19.119, established water use and sewer use allocation programs, respectively; and WHEREAS, the ORDINANCES require CITY to establish "daily water use allocations" in gallons per day (gpd) and "daily sewer use' allocations" in gpd, for all parcels of commercial and industrial real property that are connected to CITY's municipal water and/or sewer systems; and WHEREAS, the real property located at 320 and 340 Obata Court, Gilroy, CA, 95020, APNs 841- 79-004 and 841 -79 -005, which is more fully described in Exhibit "A," (attached and incorporated herein) (the "PROPERTY "), is commercial or industrial real property that is connected to CITY's municipal water and sewer systems; and WHEREAS, the PROPERTY is owned by OWNER; and WHEREAS, OWNER has requested a daily water use allocation of 70 gpd for the PROPERTY at a cost to OWNER of $574.56 and a daily sewer use allocation of 65 gpd for the PROPERTY at a cost to OWNER of $2,577.90. 1MD OLING E 811035007.2 022312-04706091 NOW, THEREFORE, in consideration of the mutual promises contained herein, CITY and OWNER agree as follows: full. Section 1. Incorporation of Recitals. The above Recitals are incorporated as if set forth in Section 2. Daily Water and Sewer Use Allocations. a. CITY agrees to allocate to OWNER a daily water use allocation of 70 gpd for use at the PROPERTY at a cost to OWNER of $574.56, and CITY agrees to allocate to OWNER a daily sewer use allocation of 65 gpd for use at the PROPERTY at a cost to OWNER of $2,577.90, for a total cost of $3,152.46. Payments are due immediately, and OWNER's failure to make such payments immediately shall constitute cause for CITY's immediate termination of this Agreement. b. Upon execution of this Agreement and full payment of the sums identified in Section 2(a), above, OWNER will possess, pursuant to the terms and conditions stated herein, a cumulative total daily water use allocation of 70 gpd, with a cumulative value of $574.56, and a cumulative total daily sewer use allocation of 65 gpd, with a cumulative value of $2,577.90. C. Upon payment in full, the daily water use and daily sewer use allocations set forth above shall run with the land, unless and until the allocations are terminated, rescinded, or otherwise modified pursuant to this Agreement or any amendment hereto, the ORDINANCES, or other provisions of law. Section 3. Rescission of Water and Sewer Use Allocations. a. Pursuant to the ORDINANCES, in the event that the PROPERTY's daily water use, as determined by CITY, is consistently less than the daily water use allocation specified in Section 2 of this Agreement, then CITY may, in its discretion, rescind all or part of the PROPERTY's daily water use allocation. b. Pursuant to the ORDINANCES, in the event that the PROPERTY's daily sewer use, as determined by CITY, is consistently less than the daily sewer use allocation specified in Section 2 of this Agreement, then CITY may, in its discretion, rescind all or part of the PROPERTY's daily sewer use allocation. C. Pursuant to the ORDINANCES, prior to and as a condition of CITY's rescission of any water or sewer use allocation, or portion thereof, and unless otherwise provided by the ORDINANCES: (i) CITY shall provide the then current owner of the PROPERTY (at the name and address maintained by the Santa Clara County Assessor's Office) written notification of CITY's determination of such underuse, which determination is subject to appeal; and (ii) CITY shall not make a rescission determination earlier than ninety (90) days after or later than one (1) year after CITY's mailing of the notification of underuse. Written notice shall be made pursuant to the ORDINANCES.. 1M OLINGEM1035007.2 2 022312-04706091 Section 4. Overuse, Charges and Penalties. a. Pursuant to the ORDINANCES, OWNER shall be subject to charges and penalties in the form of higher water and sewer rates for any actual water use and/or sewer use on the PROPERTY in excess of the allocations specified in Section 2 of this Agreement. b. Pursuant to the ORDINANCES, if the PROPERTY's average daily water use or average daily sewer use over a period of thirty -six (36) consecutive billing periods exceeds its total daily water or sewer use allocation for that period, CITY may require the owner of the PROPERTY to enter into a new water /sewer use allocation agreement reflecting the PROPERTY's actual and expected average daily water use and /or its actual and expected average daily sewer use. Failure of OWNER to enter into a new water /sewer use allocation agreement shall subject the PROPERTY to the overuse rates. Section S. Duties of Owner. In consideration of the daily water use and daily sewer use allocations specified in Section 2 of this Agreement, OWNER agrees to do all of the following: a. OWNER shall insert written notification of the terms and conditions of this Agreement, and any amendments thereto, in all deeds, leases and contracts it enters into that. affect any right, title or interest in the PROPERTY, including the rights to use and /or possess the PROPERTY; b. Any deed executed by OWNER to transfer the PROPERTY shall include language under which the transferee agrees to assume all of OWNER's obligations under this Agreement, and any amendment thereto, and consents to the enforcement of such obligations against the transferee by CITY as a third -party beneficiary; C. With respect to any future agreement OWNER enters into for the leasing, use or possession of the PROPERTY (including any amendment or addendum to an existing agreement), OWNER shall secure in writing from any and all lessees, licensees, occupants and/or users of the PROPERTY their agreement not to exceed the daily water use and daily sewer use allocations stated in Section 2 of this Agreement; and d. OWNER shall investigate, and consult with CITY about, the possible use of internal reclamation systems and water - saving devices on the PROPERTY. Section 6. Increased Allocations. Should OWNER desire an increase in the daily water use allocation and/or the daily sewer use allocation for the PROPERTY, or any portion thereof, it shall submit a written application to CITY, and shall provide CITY with all information CITY deems necessary to evaluate and confirm the OWNER's reasonable expected need for the increased allocations that are being applied for. CITY shall determine, in its sole discretion, whether and the degree to which additional allocations are available. To the extent CITY determines additional allocations are available, then CITY shall give OWNER the option to acquire additional allocations at CITY's then - current published rates and fees, and subject to OWNER and CITY entering into an amendment to this Agreement or a new agreement to supersede this Agreement, in a form provided by CITY. Section 7. Termination. The terms and conditions of this Agreement shall remain in full force and effect until this Agreement is modified or terminated by the written, mutual consent of both parties, or at the option of CITY, upon OWNER's breach of any of the provisions of this Agreement or failure to IMDOLINGER11035007.2 3 022312 - 04706051 pay monthly water or sewer use charges as invoiced by CITY. Notwithstanding anything to the contrary herein, CITY reserves the right to exercise any and all remedies available in law or in equity upon such breach or failure to pay invoiced water and /or sewer charges and /or water and /or sewer allocation fees. The daily water use and daily sewer use allocations conferred on the PROPERTY pursuant to Section 2 of this Agreement, above, shall be mill and void upon the termination of this Agreement for any reason. Section 8. Amendments To The Ordinances. Any references in this Agreement to the ORDINANCES, or to any specific section of Gilroy City Code Chapter 27, sections 27.76 through 27.80, or Chapter 19, section 19.115 through 19.119, shall be deemed to include the most recent versions of the ORDINANCES, and the most recent corresponding sections of the Gilroy City Code, as they may be amended from time to time. Section 9. Binding Effect. The tenns and conditions of this Agreement shall be enforceable by and against CITY, and by and against OWNER and all subsequent owners, assigns, and successors in interest of and to the PROPERTY, in perpetuity until such time as this Agreement is amended, superseded, terminated or cancelled in accordance with the terms of this Agreement. This Agreement shall be recorded in the Santa Clara County Office of the Clerk- Recorder: Section 10. Allocations Not Transferable. The daily water use allocations and daily sewer use allocations that are the subject of this Agreement shall only be used on or for activities and operations on the PROPERTY, and they shall not be sold, purchased, assigned or otherwise transferred to any person or entity except to subsequent owners of the PROPERTY for use on the PROPERTY. Section 11. No Warranty. CITY neither represents nor warrants that the water and sewer capacity necessary to satisfy the daily water use allocations and daily sewer use allocations specified in Section 2 of this Agreement will be available at all times. CITY expressly reserves the right to provide less water and/or less sewer capacity than is allocated herein, and/or to temporarily reduce or delay the provision of water and /or sewer capacity, in order to address operational or legal issues, including but not limited to: service, maintenance, drought, water rationing, rainy weather, fire department uses, regulatory orders, changes in state law, and conditions beyond CITY's control: Such reductions or delays in water supply and/or sewer capacity shall not be deemed to constitute violations of this Agreement, and shall not entitle OWNER to a refund of daily water use or daily sewer use allocation fees, in whole or in part. Section 12. - Force Maieure. CITY shall not be in breach or default of this Agreement, or be liable to OWNER or any other party, for any delay in or failure of performance under this Agreement that directly or indirectly results from: governmental action (other than by CITY), including an order, regulation or restriction of federal or state governmental, military or lawfully established civilian authorities; acts of public enemies or terrorists; riot; insurrection; rebellion; revolution; state of war (declared or undeclared), war conditions similar to a state of war, or preparation to a state of war, or preparation for war; sabotage; blockade; embargo; fire; explosion; earthquake; nuclear accident; flood; strike; lockout; plague or other epidemics; chemical, biological or nuclear catastrophe; power blackout; hurricane, tropical storm, tornado or unusually severe weather condition; or other causes beyond CITY's reasonable control. The time for CITY's performance under this Agreement shall be extended for a reasonable period of delay resulting from any such cause. Section 13. Owner's Representations. OWNER represents that it has reviewed the ORDINANCES (specifically including but not limited to the sections addressing the calculations of the daily water use allocation and daily sewer use allocation), and it has reviewed CITY's Schedule of Pees, WDOLINGEM1035007.2 4 022312- 04706091 and has been advised by CITY to consult with legal counsel concerning those calculations and the effect of the ORDINANCES and entering into this Agreement. Section 14. Entire Agreement. This Agreement and amendments hereto constitute the final, complete, and exclusive statement of the terms of the Agreement by and between CITY and OWNER and supersedes all prior and contemporaneous understandings or agreements with respect to the matters, herein set forth. Neither CITY nor OWNER has been induced to enter into this Agreement by, and neither party is relying on, any representation or warranty outside those expressly set forth in this Agreement. Section 15. Partial Invalidity. If a court of competent jurisdiction or arbitrator holds any provision of this Agreement to be void, invalid or unenforceable in whole or in part for any reason, the validity and enforceability of the remaining provisions, or portions of them, shall not be affected. Section 16. No Waiver. No waiver by either party of any provision hereof shall be deemed a waiver of any other provision hereof or of any subsequent breach by the other party of the same or any other provision. Section 17. Captions. The captions and headings of the Sections of this Agreement are for convenience of reference only and shall not be deemed to define or limit the provisions thereof. Section 18. Attorneys' Fees. In the event of any litigation or arbitration proceeding between CITY and OWNER arising out of this Agreement as the same may be amended from time to time, including but not limited to failure to make payments when due, the prevailing party shall be entitled to recover its reasonable attorneys' fees and costs incurred in any such action or proceeding. Section 19. Applicable'Law, Jurisdiction; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflict of laws provisions of any jurisdiction. The parties specifically agree that the exclusive jurisdiction and venue with respect to any and all disputes arising hereunder shall be in the State courts of the State of California located in Santa Clara County, California. IN WITNESS WHEREOF, CITY has executed this agreement as of , 2012. OWNER: PACIFIC C A ND METALS, INC. By: Date: az120� 2- Carl President and Treasurer l"1 ATTEST: CLERK WDOLINGEM1035007.2 5 022312 - 04706091 OF GILROY Thomas J. Haglund CITY ADMINISTRATOR APPROVED AS TTOO ,FORM: t� Linda Callon CITY ATTORNEY 1NOOLI N G ER11035007.2 022312 -04706091 CALIFORNIA ALL - PURPOSE CERTIFICATE OF ACKNOWLEDGMENT State of California County of 2� M 0 d�PQ On per who proved to me on the basis of satisfactory evidence to be the person($whose na i Subscribed to the within instrument and cknowledged to me tha he 0*/i executed the same 'n his r authorized capacity(0 ,wand that b his / signature`4on the instrument the perso or the entity upon behalf of which the persort� cted, 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. DANA BAILEY Comm *1795686 > WITNESS my hand and official seal. ?; Notary Public•Catitomia ` Santa Ova County cz��INNL'� . My Comm. UP. 461 18, 2012 (Notary Seal) Signature 67-Notary Pu ADDITIONAL OPTIONAL INFORMATION DESCRIPTION OF THE ATTACHED DOCUMENT (Title or description of attached document) (Title or description of attached document continued) Number of Pages Document Date (Additional information) CAPACITY CLAIMED BY THE SIGNER ❑ Individual (s) ❑ Corporate Officer (Title) ❑ Partner(s) ❑ Attorney -in -Fact ❑ Trustee(s) ❑ Other 2008 Version CAPA v12.10.07 800 - 873 -9865 www.NotaryClasses.com INSTRUCTIONS FOR COMPLETING THIS FORM Any acknowledgment completed in California must contain verbiage exactly as appears above in the notary section or a separate acknowledgment form must be properly completed and attached to that document. The only exception is if a document is to be recorded outside of California. In such instances, any alternative acknowledgment verbiage as may be printed on such a document so long as the verbiage does not require the notary to do something that is illegal far a notary in California (i.e. certifying the authorised capacity of the signer). Please check the document carefully for proper notarial wording and attach this form if required. • State and County information must be the State and County where the document signer(s) personally appeared before the notary public for acknowledgment. • Date of notarization must be the date that the signer(s) personally appeared which must also be the same date the acknowledgment is completed. • The notary public must print his or her name as it appears within his or her commission followed by a comma and then your title (notary public). • Print the name(s) of document signer(s) who personally appear at the time of notarization. • Indicate the correct singular or plural forms by crossing off incorrect forms (i.e. #4e /she /tkie3 - is /are ) or circling the correct forms. Failure to correctly indicate this information may lead to rejection of document recording. • The notary seal impression must be clear and photographically reproducible. Impression must not cover text or lines. If seal impression smudges, re -seal if a sufficient area permits, otherwise complete a different acknowledgment form. • Signature of the notary public must match the signature on file with the office of the county clerk. Additional information is not required but could help to ensure this acknowledgment is not misused or attached to a different document. Indicate title or type of attached document, number of pages and date. Indicate the capacity claimed by the signer. If the claimed capacity is a corporate officer, indicate the title (i.e. CEO, CFO, Secretary). • Securely attach this document to the signed document EXHIBITA LEGAL DESCRIPTION All that portion of lots 4 and 5, Tract No. 9342, in the City of Gilroy, County of Santa Clara, State of California, as shown on map filed for record in Book 756, page(s) 23 -24 of Maps, on December 19, 2002, File #16697133, in the office of the County Recorder of said county. APN: 841 -79 -004 and 841 -79 -005 • CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of f o (k_ Y%Ck, D.Ck M On 1`J QC) 1c Date personally appeared INGA ALONZO Commission #E 1931989 < -ri Notary Public - California z Z Santa Clara County 3 My Comm Expires Apr 15.2015 Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be the person( whose name(,,*aaw subscribed to the Lwithin instrument and acknMeMigeir ed to me that e-) limey executed the same authorized capacity(ift , and that by i9 / eFAheir signaturew on the instrument the personoo, or the entity upon behalf of which the person(o 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. 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