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Water & Sewer Allocations - Gilroy Plaza, LLC DOCUMENT: 19492056 Pages 6 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: 1111111111I III/I Fees Taxes Caples AMT PAID 22 00 City Clerk City of Gilroy 7351 Rosanna Street Gilroy, CA 95020 22 00 PEGINA ALCOMENDRAS SANTA CLARA COUNTY RECORDER Recorded at t~e request of City ,QDE ** 009 7/02/2007 2 05 P~1 SPACE ABOVE THIS LINE FOR RECORDER'S USE AGREEMENT FOR WATER USE AND SEWER TREATMENT PLANT CAPACITY ALLOCATIONS This Agreement is made and entered into this 14th day of May ,2007, by and between the CITY OF GILROY, a municipal corporation, in the County of Santa Clara, California ("CITY"), and Gilroy Plaza, LLc, a ("DEVELOPER/OWNER"), A, The CITY agrees that DEVELOPER/OWNER will receive under the terms and conditions stated herein for the property at 7777 Monterey Road, Gilroy, CA, 95020, APN 799-03-066, the amount of 15,000 gpd sewer and water allocation described as follows: 775 maximum gallons per day sewer treatment plant capacity allocation at a cost to DEVELOPER/OWNER in the amount of $ 30, 101: and (Grandfathered) 9,000 maximum gallons per day sewer treatment plant capacity allocation at a cost to DEVELOPER/OWNER in the amount of $ 324,720: and (Downtown Waiver as of 8/05, the date of the permits) 5,225 maximum gallons per day sewer treatment plant capacity allocation at a C0St to DEVELOPER/OWNER in the amount of $ 202,939: and (Downtown Waiver and as negotiated 5/8/07) 1,233 maximum gallons per day peak water use allocation at a cost to DEVELOPER/OWNER in the amount of $ 9,011.00: and (Grandfathered) 9,000 maximum gallons per day peak water use allocation at a cost to DEVELOPER/OWNER in the amount of $ 48,879: and (Downtown Waiver as of 8/05, the date of the permits) 4,767 maximum gallons per day peak water use allocation at a cost to DEVELOPER/OWNER in the amount of $ 34,837. (Downtown Waiver and as negotiated 5/8/07) For the tenant space identified as Suite 110, currently proposed as a Laundromat, this usage will be monitored quarterly by the CITY for two (2) years from the date of issuance of a Temporary Certificate of Occupancy or a Certificate of Occupancy for the Laundromat, whichever occurs first. If the usage is over 15,000 gallons per day of water within the two year period, additional water and sewer allocation impact fees equal to the actual increase in usage over 15,000 gallons per day of water will he waived up to a maximum of 1,500 additional gallons per day of water and sewer use at no cost to the DEVELOPER/OWNER. For usage exceeding 16,500 gallons per day of water and sewer use during the two year monitoring period the DEVELOPER/OWNER shall pay one half of any additional allocation required, as demonstrated by actual usage, at the water and sewer impact fee rate in effect at the time of payment. After the two year period, if further monitoring by the City reveals the usage is over the original 15,000 gallons per day of water and sewer use due to increased usage in the tenant space identified as Suite 110, and the additional 1,500 gallons per day of water and sewer has not been previously allocated, the cost for the additional 1,500 gallons per day for sewer and water shall be waived. There is no time limit to obtain the additional 1,500 gallons per day for sewer and water. Any addition allocation required over 16,500 gallons per day for sewer and water use after the two year monitoring period will be paid IN FULL by the DEVELOPER/OWNER at the cost in place at the time of purchase. Nothing in this agreement precludes the DEVELOPER/OWNER from obtaining additional allocations, subject to the Ordinances and Policies in place at the time of request, for any tenant space at the PROPERTY PENAL TY: DEVELOPER/OWNER shall be charged and penalized for any use of sewer treatment plan capacity and/or peak water in excess of the above maximum allocations as provided under the ordinances, rules and regulations adopted by the Gilroy City Council. B. In consideration for the above sewer treatment plant capacity and peak water use allocations, DEVELOPER/OWNER agrees to make the above-referenced payments prior to connection with the CITY's sewer and water delivery systems and agrees to the following: I. DEVELOPER/OWNER shall insert in all deeds, leases or contracts made relative to the PROPERTY, improvements thereon, or any part thereof. written notification of the terms and conditions of this Agreement. 2. DEVELOPER/OWNER will secure in wntmg from any and all present and future occupants or users of said PROPERTY with whom DEVELOPER/OWNER enters into a lease or contract relative to the PROPERTY, or any part of or any improvements to the PROPERTY, an agreement not to exceed the allocations stated in Section A. 3. Should DEVELOPER/OWNER desire an increased sewer treatment plant capacity allocation and/or per day peak water use allocation, DEVELOPER/OWNER shall notify CITY. CITY then shall give DEVELOPER/OWNER the option to purchase additional allocations, if such allocations arc then available, at the then-current published rates and fees. 4. Should DEVELOPER/OWNER consistently use less sewer treatment plant capacity or per day peak water use at the PROPERTY than the allocation purchased, as determined by CITY, DEVELOPER/OWNER may sell the excess capacity back to the CITY at the original purchase price, or retain the excess capacity amount for growth or expansion with the exception that the DEVELOPER/OWNER has waived any and all rights to sell back to CITY the 9,000 and 5,225 gallons per day of waived sewcr allocation and the 9,000 and 4,767 gallons per day of waived water allocation. The original price paid by DEVELOPER/OWNER for the waived allocations is zero ($0) dollars. 5. DEVELOPER/OWNER shall investigate and consult with CITY as to thc possible usc of internal reclamation systcms and water-saving devices. C. The terms and conditions of this Agreement shall rcmam 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 DEVELOPER/OWNER's breach of any of the provIsIOns of this Agreemcnt or failure to pay monthly water or sewcr use chargcs as invoiced by CITY. Notwithstanding anything to the contrary herein. CITY reserves the right to exercise any and all remedies available at law or in equity upon such breach or failure to pay invoiced charges. Thc sewer treatment plant capacity and/or peak water use allocation allotted to DEVELOPER/OWNER pursuant to Section "A" above shall be null and void upon the termination of this Agreement for any reason. D. DEVELOPER/OWNER shall have the option of measuring sewer effluent by: I. Installing and paying for a sewer efflucnt meter, which meter shall comply with the CITY's standards and specifications. 2. Measuring the water consumption at the PROPERTY in a manner acceptable to CITY. E. The terms and conditions of this Agreement shall run with the land, and apply to and bind DEVELOPER/OWNER and each of DEVELOPER/OWNER's heirs, assigns, successors and successors-in-interest, and all subsequent owners of the PROPERTY. This Agrcement shall be recor I e Clerk-Recorder of Santa Clara County, California. DEVELOP~N~ BY:~~\ ------ John Burks ~ Its: (]; AI (]f' C~/rLA/ r I Its: Member, Gilroy Plaza, LLC B~~ Bruce F. Rhett Its: Member . Gilroy Pl i'l7.i'I , r ,r [" \'\\ -'I By: ~ \Ai(~ ~(W\- Sharis Rhett . \ Its: Mcmber , Gilroy Plaza. LLC personally known 10 me -OR- proved to me on Ihe basis of satisfaclory evidence 10 be the persony1 whose name(ll6/rrt subscribed 10 the wilhin instrument and acknowledged to me that ~~y executed Ihe same in ~/~ir aulhonzed capaClty~. and thaI by (@;J.P6~lr signature(,ll on the inslrumenl the person~. or Ihe enllly upon behal f of whIch the person!..... acted, ~ .-. .-.. .-. ..-. ...-... ..-.... .-. .-. ...-... ...-... .-. ..-. J v' KELLEY l. AU executed the Instrument. ~ CommlAlon II 1630703 $ Notary PublIc . CoIIforr<<I I WITNESS my hand and official seal. ~ Monterey County - - J 'Or ~ _ ~:a:n~~o.:l~~ ST^ TE OF CALIFORNIA COUNTY OF c~'vttClCJ1.A"b On ::Ju..rt( li Idl'U'T . before me. (1ohV\ bl,.{lts } " if n l\. . ^. .U~"'-1 ~u.'o\:c...... l:'X (0i L. .tf1-'\ . personall y appeared ~/~~ SIG~rURE OF NOT ARY CAPACITY CLAIMED BY SIGNER TIHlugh statute docs not require the Notary to fill in the data helow. doing so may prove invaluahle to persnns relying nn the dneume::!. INDIVID!lAL CORPORATE OFFIC 'ERS( S) Title(s) PARTNER(S) LIMITED CiENERAL ATTORNEY.IN.FACT TRlISTEE(S) C,lIARDIAl\i/CONSERV A TOR OTHER SIGNER IS REPRESE:-'-TI;'IIG: Name of Person(s) or Entity(ies) CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT ;(>o('..c<'..c<'..c<'..c<'..c<'..c<'..c<'..c<'..c<'..c<'.c<'.c<'..c<'..c<'..c<'..c<'..c<'..c<'..c<'..c<'..c<'..c<'..c<'..c<'..c<'..c<'..c<'..c<'..c<'..c<' ..c<'..c<'..c<'..c<'..c<'..c<'..c<'..c<'..c<'..c<'..c<'..c<'..c<'.o;' State of California County OfSc:,..~_)'~~ -z..... On lue...i)\3 ~ 2J.:01 personally appeared P1drp ~ J.:JliHV :j('dl ..\t), ,''''fo } 55 before me. _~.l-f .n~~\e...-\-Ic "'(~~4-)~, CI....Jo\(l -\ ~'-~ ~\ C- -\.~-Hll(> rind T;'I" nt Officer IP qJeHlP 0, Notcuy PublIC I B-{\AC~f'-m~~~d~_ 5k~Vl~__'l2.h€.<\ \ NiHl1C1SI ,! ')ICjllerlsl ~ i personally known to me ~roved to rnA on the basis of satisfactory evidence to be the person@;whose nam~ is/@ subscribed to the within in,trument and acknowledged to me that he/she/t~ pxecuted the same in his/her/t~ authorized c(lpacit~ and that by his/her/t~ signature(@r)1 the instrument the persor@ or the entity upon br:half of which the person~cted. executed the instrument. WITNESS m~! hand and official seal. S,qnilllH(: nt Nr)tary P\JtJ I( Though the information below IS not reqUIred by law. It may prove valuahle to persons relying on the document and could prevent fraudulent removal and reattachment of thi, form to another document OPTIONAL Description of Attache~ Docu~n.t ~ '-' '-::. . Title or Type of Document ~~-.\O\I~l..L.')e.J[d~~~~fl4......;.t_~~ Document Date: Signer(s) Other Than Named Above: 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: Number of Pages: Signer's Name: Individual Corporate Officer - Title(s): Partner - Limited General Attorney in Fact Trustee Guardian or Conservator Other Signer Is Representing: :sx-;:.i.(<';:.i<-;:.i<Y;<Z-<<~;0:.i.('7.i.(Y.i.(<~'6<.-'<'Z~'<'Z4-o:..~;<<,(.i&:.i.(<;:i6:.i{'7.i{~~~;&:.i'&:'i{'7.i{'7.i<X;6<.i<<;:;<y:;-o:'i0<;Ov-o:..Ov~~~~;o:;-<<'&.. 2004 National Notary Assoclallon . 9350 De Solo Ave POBox 2402 . Chillsworth CA g 1:] 1 :].2402 Item No "gOl Reorder Call Toll.Free '.ROO.Rl6.6R2l STATE OF CALIFORNIA ) )ss. COUNTY OF SANTA CLARA ) TITLE OF DOCUMENT: Agreement for Water Use and Sewer Treatment Plant Capacity Allocations - Gilroy Plaza, LLC, 7777 Monterey Street, Gilroy, California, APN: 799-03-066 On June 21,2007, before me, Rhonda Pellin, Notary Public, personally appeared Jay Saksa personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. ~..., .1;/JZdA .eel < I l~~~~~~~~~~~~J ~ RHONDA PHUN .-. Commission 1/ 1581056 ~ ' -. Notary Public - California ~ ~. Santa Clara County ~ MyConvn. ExplresJun 19, 2 ----------------- Signature of Notary Public per GC Sec. 40814; CC Sec. 1181 (Notary Seal)