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Water & Sewer Allocations - Alvarez, Donato R.RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City Clerk City of Gilroy 7351 Rosanna Street Gilroy, CA 95020 DOCUMENT: 220074 3 Pages: 10 AMT PAID �42.00 REGINA ALCOMENDRAS SANTA CLARA COUNTY RECORDER Recorded at the request of City RDE # 024 12/17/2012 2 :49 PM SPACE ABOVE THIS LINE FOR RECORDER'S USE AGREEMENT FOR WATER USE AND SEWER USE ALLOCATIONS FOR THE PROPERTY LOCATED AT 5717 Obata Way ALLOCATION NO. AA -12 -01 (New Facility Or New Commercial Or Industrial Use At Existing Facility) 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 Donato R. Alvarez, ( "OWNER "). Upon the signature of CITY and OWNER, this Agreement shall be deemed to have taken effect as of r _ , 2012 ( "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. 200-'02 (collectively, the "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 5717 Obata Way, Gilroy, CA, 95020, APN 841 -76 -014, 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 1MDOLINGER11035040.2 1 080212 - 04706091 WHEREAS, OWNER has requested a daily water use allocation of 193 gpd for the PROPERTY at a cost to OWNER of $1,559.52 and a daily sewer use allocation of 26 gpd for the PROPERTY at a cost to OWNER of $1,031.16; and WHEREAS, the water and sewer use allocations set forth herein are entitlements that benefit the PROPERTY and are intended to run with the land subject to the conditions set forth herein. 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 193 gpd for use at the PROPERTY at a cost to OWNER of $1,581.41, and CITY agrees to allocate to OWNER a daily sewer use allocation of 26 gpd for use at the PROPERTY at a cost to OWNER of $1,031.16, for a total cost of $2,560.68. 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 payment in full and upon the recording of this Agreement in the Office of the Santa Clara County Clerk- Recorder, the daily water use and daily sewer use allocations set forth in this Agreement are entitlements that run with the land and shall be binding upon and run to the benefit of all persons having or acquiring any right, title or interest in the PROPERTY or any part thereof, without the payment of additional compensation. Notwithstanding the above, these allocations may be terminated or rescinded as provided in this Agreement or the ORDINANCES. C. This Agreement is intended to supersede all prior water and sewer allocation agreements between CITY and OWNER or OWNER's predecessor in interest for the PROPERTY as of the EFFECTIVE DATE. However, this Agreement shall not release OWNER or OWNER's successor in interest from any defaults of any prior water and sewer allocation agreement applicable to the PROPERTY or from any water or sewer fees or charges applicable to the PROPERTY that are otherwise owed to CITY. Section 3. Underuse; 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. 1MDOLINGER11035040.2 2 080212 - 04706091 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. d. In its discretion, CITY may rescind all or part of the PROPERTY's daily water use or daily sewer use allocation as otherwise provided in the ORDINANCES. 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 5. Duties of Owner. a. In the event of any potential sale or other conveyance of the PROPERTY: (i) prior to the close of escrow, OWNER shall present the transferee with a copy of this Agreement (as fully- executed and recorded), and notify the transferee in writing that transferee will be subject to the daily water and sewer use allocations, fees and charges set forth in this Agreement unless the transferee negotiates modified water or sewer use allocations with CITY, and that any changes in use of the PROPERTY may require transferee to enter into a new or modified water and sewer allocation agreement with CITY. b. Any sale or other conveyance of the PROPERTY shall include as a condition of any such sale or conveyance OWNER's assignment to the transferee, and the transferee's express written acceptance of the assignment, of this Agreement (including any amendments and /or partial rescissions hereto), under which the transferee consents to the enforcement of all OWNER's duties and obligations under the Agreement by CITY. As a condition of escrow, OWNER shall record any such assignment in the Office of the Santa Clara County Clerk- Recorder, and shall mail a copy of the recorded assignment to CITY. All duties and obligations of this Agreement shall be binding on OWNER's successor in interest to the PROPERTY notwithstanding OWNER's failure to enter into or record an assignment of this Agreement. WDOLINGE11035040.2 3 080212 - 04706091 C. OWNER shall attach a copy of this Agreement (as fully- executed and recorded), or otherwise insert written notification of the terms and conditions of this Agreement, and any amendments and /or partial rescissions hereto, 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. d. 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. C. 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. CITY may terminate this Agreement upon OWNER's breach of any of the provisions of this Agreement or OWNER's failure to pay monthly water or sewer use charges or fees as invoiced by CITY. Notwithstanding any other terms of this Agreement, 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. All daily water use and daily sewer use allocations conferred on the PROPERTY pursuant to Section 2 of this Agreement, above, or pursuant to any previous agreement with CITY, shall be null and void upon the termination of this Agreement for any reason, in which case CITY shall have no obligation to refund or otherwise compensate OWNER for the terminated allocations. Section 8. Measurement of Sewer Effluent. CITY does not measure actual sewer flow from the PROPERTY. The daily sewer use allocation set forth in Section 2 of this Agreement, above, is based on OWNER's estimate that the sewer flow on the PROPERTY will be approximately 16% of daily water use on the PROPERTY. Thus, monthly sewer use charges, as shown on CITY's utility bill to OWNER, will assume an average daily sewer flow that is 16% of the PROPERTY's actual water use. Nonetheless, OWNER shall be liable for actual sewer flow from the PROPERTY, as follows: a. No later than 120 days from the EFFECTIVE DATE of this Agreement or from the commencement of operations at the PROPERTY, whichever is later, OWNER shall develop and implement a sewer effluent measuring and reporting program, at its own expense, to measure the actual volume of sewer effluent from the PROPERTY, which program must be submitted to CITY for approval. OWNER shall have the option of measuring sewer effluent by: IMDOLINGER11035040.2 4 080212 - 04706091 1. Installing and maintaining a sewer effluent meter, which meter shall comply with all standards and specifications required by CITY; 2. Contracting for a sewer flow measuring program to be developed and implemented by a qualified and experienced consultant. The proposed contractor, and its proposed sewer flow measuring methods and program, shall be submitted to CITY for approval prior to its implementation; or 3. Contracting for a sewer flow measuring program to be developed and implemented by CITY. b. Notwithstanding the requirements of subsection 8.a., above, no later than 120 days from the EFFECTIVE DATE of this Agreement or from the commencement of operations at the PROPERTY, whichever is later, OWNER shall measure and verify its actual average daily sewer flow reflecting a minimum period of thirty (30) days ( "Initial Sewer Verification "), and report these results to CITY. If OWNER fails to do so, then CITY will assume that the actual sewer flow from the PROPERTY, retroactive to the EFFECTIVE DATE, is and has been the same as the actual water consumption at the PROPERTY as measured by the water meter for the same period, in which case, additional impact and /or use fees may be due and payable according to this Agreement, the ORDINANCES, and /or CITY's Schedule of Fees. If the Initial Sewer Verification shows that the PROPERTY's actual average daily sewer flow is greater than the daily sewer use allocation set forth in Section 2 of this Agreement, then OWNER shall report this discrepancy to CITY immediately, pay CITY use charges for this overuse (retroactive to the EFFECTIVE DATE), apply for and pay for an increased daily sewer use allocation, as set forth in Section 6 of this Agreement, and amend this Agreement accordingly. C. Subsequent to the Initial Sewer Verification, to the extent the PROPERTY's sewer flows, based on actual sewer flow measurements, exceed the daily sewer use allocation set forth in Section 2, above, then OWNER agrees to report this discrepancy to CITY immediately and to pay CITY for the overuse (retroactive to the most recent sewer effluent measurement that did not exceed the daily sewer use allocation set forth in Section 2). OWNER shall otherwise be subject to overuse charges and penalties and /or additional impact fees, as required by this Agreement, the ORDINANCES, and /or CITY's Schedule of Fees. Section 9. 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 10. Binding Effect. The terms 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 11. 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 IMDOLINGER11035040.2 5 080212 - 04706091 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 12. 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 13. 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 14. 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 Fees, 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 15. 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 16. 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 17. 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 18. 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. IMDOLINGEM1035040.2 6 080212 - 04706091 Section 19. 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 20. 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 Avmgw- , 2012. Is UM11) By: Donato R. Alvarez Owner ATTEST: r' Sha na Freels CITY CLERK APPROVED AS TO FORM: Linda Callon CITY ATTORNEY Date: //l O`Z �'? 0 ( Z 1MDOLINGER11035040.2 7 080212 - 04706091 OF GILROY Thomas J. Hag and CITY ADMINISTRATOR EXHIBIT A LEGAL DESCRIPTION Real property in the City of Gilroy, County of Santa Clara, State of California, described are follows: Lot 1 as shown on the map for record in Book 543, pages 39 of maps, on May 23, 1985 in the office of the County Recorder of said county. APN 841 -76 -014 1MDOLI NGER11035040.2 080212 - 04706091 CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT State of California County of ` So r 4-a C, in iC^ CIVIL CODE § 1189 On k!", vol 1) e 612- before me, < I r 4 ,fir !. i V Ct ; i ; t1-i + 4 P1 fC. Date Here Insert Name and Title of the Officer personally appeared �u h - /�'l it `i r e 7- Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(6) whose name(s) is /ar6 subscribed to the within instrument and acknowledged to me that he /s fe /ttl,ey executed the same in his/her/their authorized capacity; ice, and that by his /h.e00&q r signature(g) on the instrument the SANDRA E. MAYA personJg), or the entity upon behalf of which the comrtIllissw s 1908181 person(s') acted, executed the instrument. Nowy Poetic - CWort" Sao CW& cowl I certify under PENALTY OF PERJURY under the Illb Cwm. ft" tin 11 2014 laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature: a- e".._--. Place Notary Seal Above Signature of Notary Public 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. Description of Attached Document Title or Type of Document: �t;�T�c � ���Fi "t) '� c- W&4(7 'r YP Y f f .ft��Wr %r 11'' t_ , r t -t 7i r; y Document Date:' T' 1D Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer— Title(s): ❑ Individual ❑ Partner — ❑ Limited ❑ General Top of thumb here ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Signer's Name: ❑ Corporate Officer— Title(s): ❑ Individual ❑ Partner — ❑ Limited ❑ General Top of thumb here ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: 0 2010 National Notary Association - NationalNotary.org - 1- 800 -US NOTARY (1- 800 - 876 -6827) Item #5907 CALIFORNIA • ACKNOWLEDGMENT State of California County of 7 _A p� 0G_V_CA_ _ On k l :-->t Date personally appeared INGA ALONZO Commission # 1931989 = Notary Public - California Santa Clara County Comm. Ex Tres Apr 15, 2015 Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be the person( whose name(goare subscribed to the within instrument and acknowledged to me that e shefthrey executed the same in isrMir authorized capacity(i)6, and that by &her/their signature0o on the instrument the person(, or the entity upon behalf of which the person(s'(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. WITNES my hand and off pal seal. Signature ignature of Notary P kc 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. Description of Attached Document Title or Type of C Document Date: Signer(s) Other Than Named Above: Iv) I-P"-- Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Individual ❑ Corporate Officer —Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact • ❑ Trustee Top of thumb here ❑ Guardian or Conservator ❑ Other: Signer Is Representing: ©2007 National Notary Association- 9350 De Soto Ave., P.O. Box 2402 - Chatsworth, CA 91313 -2402 - www.NationalNotary.org Item #5907 Reorder: Call Toll -Free 1- 800 - 876 -6827 IA