Loading...
HomeMy WebLinkAboutMidway City Sanitary District - VF Outdoor, Inc. (Vans) - 2012-06-04y& y4,4 GC , & A6 Cj L� <-/. ICJ cL- ,, Council/Agency Meeting Held: Deferred/Continued to: )App oved ❑ Conditionally Approved ❑ Denied . Lze Ci C erk's ignat Council Meeting Date: August 20, 2012 Departmen Number: ED 12-33 CITY OF HUNTINGTON BEACH REQUEST FOR CITY COUNCIL ACTION SUBMITTED TO: Honorable Mayor and City Council Members SUBMITTED BY: Fred A. Wilson, City Manager PREPARED BY: Bob Hall, Deputy City Manager/Director of Economic Development SUBJECT: Approve and authorize execution of the Agreement for Provision of Sewer Services and Covenant Agreement between Midway City Sanitary District and the City for the proposed Vans Skate Park Statement of Issue: Approve the Agreement for Provision of Sewer Services between Midway City Sanitary District and the City of Huntington Beach for the proposed Vans Skate Park located on City owned property between McFadden Avenue and Center Avenue, east of Gothard, as amended on June 19, 2012, by Midway City Sanitary District. Financial Impact: No Fiscal Impact Recommended Action: Motion to: A) Approve and authorize the Mayor and City Clerk to execute the "Agreement for Provision of Sewer Services" between Midway City Sanitary District and the City of Huntington Beach to provide sewer services to City owned property; and, B) Approve and authorize the recordation and execution of the "Covenant and Agreement for Provision of Sewer Service;" and, C) Authorize the City Manager to sign all necessary documents to effectuate the Agreement. Alternative Action(s): Do not approve the Agreement and direct staff accordingly. HB -221 - Item 14. - I REQUEST FOR COUNCIL ACTION MEETING DATE: 8/20/2012 DEPARTMENT ID NUMBER: ED 12-33 Analysis: On June 4, 2012, City Council approved an Agreement for Provision of Sewer Services between Midway City Sanitary District and the City of Huntington Beach to provide sewer services to City owned property, the location of the proposed Vans Skate Park. The Agreement would allow VF Outdoor, Inc. (Vans) to connect to the Sanitary District's sewer line located along McFadden Avenue, as recommended by the City. On June 19, 2012, the Agreement was reviewed by the Midway City Sanitary District Board of Directors. At that time, although District staff had drafted the agreement, the Board requested some minor edits. The Sanitary District Board of Directors approved the revised Agreement contingent on the City agreeing to not exceed the discharge volume of the proposed skate park use. Sanitary District Counsel amended the Agreement which has been approved by the Huntington Beach Attorney's Office. Staff is requesting Council approval of the amended Sewer Agreement. Since the Midway City Sanitary District has already approved and executed the agreement, staff does not anticipate any additional modifications. Environmental Status: Project was EIR certified on March 27, 2012 Strategic Plan Goal: Enhance economic development Attachment(s): 1 "Agreement for Provision of Sewer Services" between Midway City Sanitary District and the City of Huntington Beach, including "Covenant and Agreement for Provision of Sewer Service" Item 14. - 2 xB -222- ATTACHMENT #1 AGREEMENT FOR PROVISION OF SEWER SERVICES APN 142-073-03 Vans Skate Park Parcel Between McFadden Avenue and Center Avenue, East of Gothard Street, Huntington Beach, California THIS AGREEMENT is made and entered into this 17th day of July, 2012, by and between the Midway City Sanitary District ("District") and City of Huntington Beach ("Owner"). District and Owner shall collectively referred to herein as the "Parties". RECITALS WHEREAS, Owner owns the property legally described on Exhibit "A" hereto, which is located approximately between McFadden Avenue and Center Avenue, East of Gothard Street, in the City of Huntington Beach, County of Orange, State of California, and which consists of Assessor's Parcel Number 142-073-03 ("the Property"); and WHEREAS, Owner is considering leasing the property in conjunction with a proposed project to construct a skate park on the Property (the "Vans Skate Park Project"); and WHEREAS, in the event the Vans Skate Park Project is approved and constructed, Owner wishes to receive sewer service for the Property; and WHEREAS, the District is a sanitary district formed under the Sanitary District Act of 1923, which provides sewer services to all customers within its jurisdiction; and WHEREAS, the Property is located within the jurisdictional boundaries of the City of Huntington Beach for purposes of sewer service; however, the District's sewer lines are in close proximity to the Property, and it is more convenient and economical for the Owner to connect the Property to the District's sewer lines than the City of Huntington Beach's sewer lines; and WHEREAS, Owner has requested and District has agreed to provide sewer services to the Property subject to the provisions of this Agreement; and WHEREAS, Owner has agreed to pay the fees and charges of the District in connection with the provision of sewer services; and WHEREAS, the District finds that it is in the public interest to permit the Owner to connect to the District's sewer lines. AGREEMENT NOW, THEREFORE, the Parties agree as follows: 772996.5 Section 1. Construction of Facilities A. In the event the Vans Skate Park Project is approved and construction of said project commences, in conjunction with said project construction, Owner or Owner's agent or assignee shall construct and own all sewer facilities, which are necessary to connect to the District's sewer system. All building connections, street laterals and appurtenances thereto shall be maintained in a safe and sanitary condition, and all devices or safeguards which are required by District regulations shall be maintained in good working order. All such building connections, street laterals, appurtenances, and devices shall be maintained by Owner. B. Any public collector or main sewer line required to be constructed or extended to connect the Property to District's sewer system shall be constructed and paid for by Owner or Owner's assignee at Owner's sole cost (including the cost of any associated rights -of -way, easements, licenses, permits, etc.) then upon completion the same shall be dedicated to, and accepted by the District. District accepts all liability arising out of the ownership of said sewer facilities subsequent to District's acceptance thereof, except for liability directly caused by Owner. C. Prior to construction of the sewer facilities, Owner shall submit plans and specifications for construction of all sewer facilities and connection to the District's sewer system for approval by the District. District shall have the right to inspect at any time all such construction and require changes the District deems necessary consistent with the approved plans for proper connection to the District's sewer system. Section 2. Provision of Sewer Services District agrees to provide sewer services to Owner consisting of permitting connection to the District's sewer system for the transport of sewage from the Property to sewer trunk lines owned and operated by the Orange County Sanitation District ("OCSD). Furthermore, Owner and any subsequent owners, successors -in -interest or assigns, shall comply with all applicable District, OCSD, and State laws, regulations, rules, and procedures pertaining to dischargers and discharges into, and the use of, District's facilities. Section 3. Fees and Charges A. Exhibit "B" hereto is a list of the fees and charges applicable for the services of the District to the Property (the," Schedule of Fees"), which is incorporated herein by this reference. Owner or Owner's assignee shall pay to District the fees and charges described on the Schedule of Fees, and as of the date of this Agreement, Owner or Owner's assignee has deposited with the District a portion of such fees and charges in the amount of five thousand four hundred eighty and 49/100 dollars ($5,480.49), which shall be applied in accordance with Exhibit "B". Owner or Owner's assignee shall pay additional fees and charges within thirty (30) days of written notice by the District that additional fees and charges have become due in accordance with Exhibit "B". Owner acknowledges and agrees 2 772996.5 that Exhibit "B" is an estimate of actual fees and the Schedule of Fees may be subject to revision by the District due to actual costs incurred or fee adjustments applicable in subsequent fiscal years. B. In addition to the fees identified in the Schedule of Fees, the Owner agrees, for itself and any subsequent owners, successors -in -interest or assigns, to pay the District in each year following the commencement of services by District to the Property, an in -lieu fee in the amount of 3% of 1 % of the assessed valuation of the Property, which corresponds to the tax rate paid by properties within the District's jurisdiction. In addition, the rate of the in -lieu fee will be subject to an automatic two percent (2%) annual increase in each year of service under this Agreement. C. Owner agrees, for itself and any subsequent owners, successors -in - interest or assigns, that the District shall have the right to collect the fees either directly on the Orange County property tax bill or by invoice to the owner of record for the Property or any portion thereof. The Owner shall undertake the obligation to notify any purchaser of the Property or any portion thereof, or any successor -in -interest or assignee of the Owner with respect to the Property or any portion thereof, of the obligation under this Agreement for the fee payments. D. In the event that the Owner, or any subsequent owner, successor -in - interest or assignee fails to make payment of the fees upon request, then District shall be under no obligation to continue sewer service and the District may discontinue all services to the Property or any portion thereof pursuant to Section 5 below, in addition to any other remedy available to District for such breach, including, but not limited to, all reasonable attorney's fees and costs should District be required to file a legal action to recover amounts due and owing hereunder. E. Any payment received by the District that is later than thirty days (30) following the date of notice of payment due by the District shall incur a one time penalty of ten percent (10%) and shall accrue interest at the rate of three and one-half percent (3'/2%) per month. Section 4. Hold Harmless Except for damages or injuries arising out of the District's sole negligence or its willful acts or omissions, Owner agrees, for itself and any subsequent owners of the Property or any portion thereof, or successors -in -interest or assigns, to indemnify, defend (at Owner's sole cost and expense) and hold the District, its directors, officers, agents and employees harmless from any and all claims, suits, causes of action liabilities, or losses for personal injury, death, or property damage arising out of or in connection with this Agreement or the construction and installation of sewer facilities by Owner or Owner's agent or lessee, the connection or disconnection of the Propertyto the District's sewer system, orthe provision of sewer services to the Property or any portion thereof by the District. 3 772996.5 Section 5. Term and Termination A. Term. Unless earlier terminated by the District as provided below, this Agreement shall remain in full force and effect until the Owner or any subsequent owners of the Property determine that the sewer services of the District are no longer necessary and the Property has been disconnected from the District's sewer system. B. Termination by District. The District may terminate this Agreement, including the provision of sewer service, for any material breach of this Agreement, including delinquent payment by Owner or any subsequent owner of any portion of the Property, or any successor -in -interest or assignee of the Owners. District shall provide Owner or the owner of record of any portion of the Property with written notice of any material breach of this Agreement. The Owner or the owner of record of any portion of the Property shall have thirty (30) days from the date of notice to cure the breach to the satisfaction of the District. In the event of the District's termination of services under this Agreement for delinquency in payment or other breach, the Owner, the successor -in -interest to the Owner or the owner of record of any portion of the Property shall be responsible for disconnecting the Property from the District's sewer system. The party responsible for making the disconnection shall pay all costs associated with the disconnection and shall submit plans for District approval prior to disconnecting from the District's system. C. Termination by Owner. Owner or any subsequent owners of the Property may terminate this Agreement at any time upon thirty (30) days advance notice to District. However, termination of this Agreement shall only become effective upon disconnection of the Property from the District's sewer system by Owner or the then current owner or owners of the Property. The party responsible for making the disconnection shall pay all costs associated with the disconnection and shall submit plans for District approval prior to disconnecting from the District's system. Section 6. Assignment The rights and obligations under this Agreement may not be assigned without notice to District and written consent of District to the assignment, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, District agrees that Owner may assign certain rights and obligations under this Agreement to any lessee of the Property, provided, however, that Owner's obligations to District pursuant to Section 4 of this Agreement shall continue and survive such assignment. To the extent that an assignment occurs, the assignee(s) shall be obligated to comply with all terms and conditions of this Agreement. Section 7. Subsequent Owners At the time Owner makes a conveyance of the Property or any portion thereof to a purchaser, Owner shall notify the purchaser of this Agreement and Owner shall notify the District in writing of the name and address of the purchasing party and the portion of the Property conveyed. Each subsequent owner shall be obligated to comply with all terms and 4 772996.5 conditions of this Agreement. Section 8. Interpretation and Governing Law This Agreement shall be construed according to its fair meaning and as if prepared by both parties hereto. This Agreement shall be construed in accordance with the laws of the State of California in effect at the time of the execution of this Agreement. Section 9. No Waiver No waiver of any provision of this Agreement shall be effective unless in writing and ;signed by a duly authorized representative of the party against whom enforcement of a waiver is sought. No waiver of any right or remedy in respect to any occurrence or event shall be deemed a waiver of any right or remedy in respect to any other or subsequent occurrence of event. Section 10. Entire Agreement This Agreement contains the entire agreement between the parties with respect to the matters provided for herein. No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties hereto, and no oral understanding or agreement not incorporated herein shall be binding on any of the parties hereto. Section 11. Severability If any part of this Agreement is held, determined or adjudicated to be illegal, void or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be given effect to the fullest extent reasonably possible. Section 12. Notices All notices required to be given under this Agreement shall be deemed given upon deposit in the United States mail, if mailed with prepaid postage, or upon personal delivery to the parties hereto at the following addresses: Owner City of Huntington Beach Attn.: City Manager 2000 Main Street P.O. Box 190 Huntington Beach, CA 92648 District Midway City Sanitary District Attn.: General Manager 14451 Cedarwood Street Westminster, CA 92683 5 772996.5 Section 13. Due Authorization Each of the persons executing this Agreement on behalf of Owner and District warrant and represent that they are duly authorized having full power and legal authority to bind their respective parties to the terms of this Agreement, and each respective party has the full right, power, capacity and authority to enter into this Agreement and perform all of its provisions and obligations. Section 14. Miscellaneous A. If the parcel that is the subject of this Agreement is subsequently divided into additional parcels, the parties hereto acknowledge and agree that a separate agreement for the provision of sewer services between District and Owner, or any of Owner's successors -in -interest or assigns, will be required as a prerequisite to any sewer services being provided by District for such additional parcels. B. If (i) any use beyond those uses indentified on the site plan attached hereto as Exhibit "C" is established; or (ii) the scope of uses identified on such site plan is substantially modified, the parties acknowledge and agree that a new agreement for the provision of sewer services between District and Owner shall be required prior to commencement of any sewer discharge to District facilities from such new or modified use or uses. A modification to any use identified on Exhibit "C" shall be deemed substantial if it results in an increase of ten percent (10%) or more in size of any use identified on Exhibit "C." Such new agreement shall, at a minimum, require payment to District of any District fees and charges otherwise applicable to such new or increased use or uses, as such fees and charges may be periodically adjusted. At no time shall Owner cause, permit or allow the discharge into or through the facilities constructed pursuant to this Agreement to exceed the design capacity of such facilities, as determined by District. IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed on the date and year set forth above. DISTRICT OWNER MIDWAY CITY SANITARY DISTRICT CITY OF HUNTINGTON B ACH Margie L. a Don Hansen President Mayor ATTEST: JOV L. Neugebauer Secretary ATTP:-qT- 6 772996.5 APPROVED AS TO FORM: B: Y Thomas F. Nix General Coun el INITIATED AND APPROVED: Director of Economic Development IF" AN D....• APPROVED AS TO FORM: 1 V, 4C0it4yAt0to_r_ney IYW _ 772996.5 EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY All that certain real property situated in the County of Orange, State of California, described as follows: Parcels 1 and 2 of Parcel Map No. 90-327, in the City of Huntington Beach, County of Orange, State of California, as per map recorded in Book 279 Page 33 and 34 of Parcel Maps, in the Office of the County Recorder of said County. Assessor's Parcel Number: 142-073-03 772996.5 EXHIBIT "B" SCHEDULE OF FEES AND CHARGES CONNECTION FEES Connection fee ($806 per unit non-residential) Park Bathroom $806.00 3000 sq. ft. retail building $806.00 USER CHARGES AND IN -LIEU FEES �l Sewer user fees in the amount of the then $265.91 current District fees per unit of service per year Adjustable �l The amount in lieu of the reallocation of an $261.58 increment of the property taxes for the Property Adjustable subject to sewer services (3% of 1 % of the assessed valuation) per year. Assessed value for FY ending 6/30/2010 is $871,930. �l Sewer Capacity Fees collected on behalf of the $3,341.00 OCSD. 9 772996.5 ME I oil This Document was electronically recorded by City of Huntington Beach Recorded at the request of and mail to: Midway City Sanitary District 14451 Cedarwood Street Westminster, CA 92683 Fee Exempt Per Govt. 61 APN: 142-073-03 Recorded in Official Records, Orange County Tom Daly, Clerk -Recorder IIIIIIII �� 1111111111111111111111111111111111111111111111111 IIIIIINO FEE 2012000497303 11:01 am 08/28/12 65 404 Al2 C38 2 COVENANT AND AGREEMENT FOR PROVISION OF SEWER SERVICE City of Huntington Beach ("Owner'!) hereby certifies that it is the owner of real property located in the City of Huntington Beach, State of California, Assessor's Parcel Number 142-073-03, which is legally described as follows: SEE LEGAL DESCRIPTION ATTACHED HERTO AT EXHIBIT "A". Owner hereby agrees and covenants with the Midway City Sanitary District ("District") that the above legally - described property, which is outside the District's jurisdictional boundaries, shall receive sewer service by the District subject to the attached Agreement for Provision of Sewer Services and subject to all applicable regulations of the District and all applicable laws thereto, as they may be amended from time to time. This covenant and agreement shall run with all of the above -described land and shall be binding upon the Owner, and all future owners, encumbracers, their successors, heirs or assignees and shall continue in effect until released by the authority of the Board of Directors of the District subject to all applicable fees and evidence that this Covenant and Agreement is no longer required by regulation, law, or agreement. Authorized Signaturesf Donald F. Hansen Jr. Name Mayor, City of Huntington Beach This dwxyxmt Title �solely �� cWdft busIrmw of ft Gty of Hun&Kfton as contemplated under ammrttent Code Sec. 6103 acid Dated this day of 4.C.6 It S 1 , 2012. fta be reewded fm of dwp. NOTARY ACKNOWLEDGEMENT STATE OF CALIFORNIA, ) COUNTY OF ORANGE On US-r % , before me f L - , Notary Public personally appeared- D F S ,Js&rV J2 • , who proved to me on the basis of satisfactory evidence to be the person($) whose name(s)Is ) subscribed to the within instrument and acknowledged to me that/sbotloy executed same in(gYheA4heir authorized capacity, and that by(Fii hogtheir signature on the instrument the person, or the entity upon behalf of which the person acted, execute the instrument. WITNESS my hand and official seal. P. L. ESPAR2A Commission # 1857021 (seal) z ;.� Notary Public - California i Z Orange County My Comm. Expires Aug4, 2013 Signature: 1 772996.5 Exhibit "A" Legal Description of Property All that certain real property situated in the County of Orange, State of California, described as follows: Parcels 1 and 2 of Parcel Map No. 90-327, in the City of Huntington Beach, County of Orange, State of California, as per map recorded in Book 279 Page 33 and 34 of Parcel Maps, in the Office of the County Recorder of said County. Assessor's Parcel Number: 142-073-03 2 772996.5 Council/Agency Meeting Held: Deferred/Continued to: %A proved Q Condi ionall Appr ved ❑ Denied 7 4 ity Jerk' Sign to e Council Meeting Date: June 4, 2012 Department ID Number: ED 12-22 CITY OF HUNTINGTON BEACH REQUEST FOR CITY COUNCIL ACTION SUBMITTED TO: Honorable Mayor and City Council Members SUBMITTED BY: Fred A. Wilson, City Manager PREPARED BY: Bob Hall, Deputy City Manager/Director of Economic Development SUBJECT: Authorize execution and approve provision for Sewer Services Agreements between Midway City Sanitary District, VF Outdoor, Inc. (Vans), and the City of Huntington Beach for the proposed Skate Park located on City owned property between McFadden Avenue and Center Avenue, east of Gothard, APN 142-073-03 Statement of Issue: Approve provision for Sewer Services Agreements between Midway City Sanitary District, VF Outdoor, Inc. (Vans), and the City of Huntington Beach for the proposed skate park located on City owned property. Financial Impact: No Fiscal Impact Recommended Action: Motion to: A) Approve the "Agreement for Provision of Sewer Services" between Midway City Sanitary District and the City of Huntington Beach to provide sewer services to City owned property; and, B) Approve the "Agreement Between the City of Huntington Beach and VF Outdoor, Inc. for Sewer Services at Vans Skate Park Parcel" for the proposed skate park project; and, C) Authorize the Mayor and City Clerk to execute the Agreements and all other related documents to finalize the Agreements-, and, D) Authorize the City Manager to sign all necessary documents to effectuate the Agreements. Alternative Action(s): Do not approve the Agreements and direct staff accordingly. Item 5. - 1 HB -54- REQUEST FOR COUNCIL ACTION MEETING DATE: 6/4/2012 DEPARTMENT ID NUMBER: ED 12-22 Analysis On March 27, 2012, the Planning Commission certified an Environmental Impact Report (EIR 10-009) for the VF Outdoor, Inc. (Vans) proposed skate park development on City owned property. After completing a conceptual site plan, staff and Vans determined the most economically feasible public sewer tie location is on McFadden Avenue which is located in Midway City Sanitary District's jurisdiction. Vans has requested to connect to the District's sewer line. In order to do so, the District requires that the City, and not Vans, enter into an Agreement for Provision of Sewer Services between Midway City Sanitary District and the City of Huntington Beach. In response, Vans has agreed to pay all fees and charges of the District and assume all liability in connection with the provision of sewer services assumed by the contract between the City and District via an Agreement for Provision of Sewer Services between VF Outdoor, Inc. and the City of Huntington Beach. Staff is requesting Council approval of both Sewer Agreements. If City Council approves the Agreements, the item will be placed on the next Midway City Sanitation District Board of Directors agenda for final approval. Both Agreements have been approved to form by the Huntington Beach Attorney's Office. Environmental Status: Project was EIR certified on March 27, 2012 Strategic Plan Goal: Enhance economic development Attachment(s): 1. I"Agreement for Provision of Sewer Services" between Midway City Sanitary District and the City of Huntington Beach 2. I"Agreement Between the City of Huntington Beach and VF Outdoor, Inc. for Sewer Services at Vans Skate Park Parcel" xB -55- Item 5. - 2 i ATTACHMENT #1 AGREEMENT FOR PROVISION OF SEWER SERVICES APN 1 42-073-03 Vans Skate Park Parcel Between McFadden Avenue and Center Avenue, East of Gothard Street, Huntington Beach, California .JIMOO THIS AGREEMENT is made and entered into this day of may, 2012, by and between the Midway City Sanitary District ("District") and City of Huntington Beach ("Owner"). District and Owner shall collectively referred to herein as the "Parties". RECITALS WHEREAS, Owner owns the property legally described on Exhibit "A" hereto, which is located approximately between McFadden Avenue and Center Avenue, East of Gothard Street, in the City of Huntington Beach, County of Orange, State of California, and which consists of Assessor's Parcel Number 142-073-03 ("the Property"); and WHEREAS, Owner is considering leasing the property in conjunction with a proposed project to construct a skate park on the Property (the "Vans Skate Park Project"); and WHEREAS, in the event the Vans Skate Park Project is approved and constructed, Owner wishes to receive sewer service for the Property; and WHEREAS, the District is a sanitary district formed under the Sanitary District Act of 1923, which provides sewer services to all customers within its jurisdiction; and WHEREAS, the Property is located within the jurisdictional boundaries of the City of Huntington Beach for purposes of sewer service; however, the District's sewer lines are in close proximity to the Property, and it is more convenient and economical for the Owner to connect the Property to the District's sewer lines than the City of Huntington Beach's sewer lines; and WHEREAS, Owner has requested and District has agreed to provide sewer services to the Property subject to the provisions of this Agreement; and WHEREAS, Owner has agreed to pay the fees and charges of the District in connection with the provision of sewer services; and WHEREAS, the District finds that it is in the public interest to permit the Owner to connect to the District's sewer lines. AGREEMENT NOW, THEREFORE, the Parties agree as follows: 772996.3 Section 1. Construction of Facilities A. In the event the Vans Skate Park Project is approved and construction of said project commences, in conjunction with said project construction, Owner or Owner's agent or assignee shall construct and own all sewer facilities, which are necessary to connect to the District's sewer system. All building connections, street laterals and appurtenances thereto shall be maintained in a safe and sanitary condition, and all devices or safeguards which are required by District regulations shall be maintained in good working order. All such building connections, street laterals, appurtenances, and devices shall be maintained by Owner. B. Any public collector or main sewer line required to be constructed or extended to connect the Property to District's sewer system shall be constructed and paid for by Owner or Owner's assignee at Owner's sole cost, then upon completion the same shall be dedicated to, and accepted by the District. District accepts all liability arising out of the ownership of said sewer facilities subsequent to District's acceptance thereof, except for liability directly caused by Owner. C. Prior to construction of the sewer facilities, Owner shall submit plans and specifications for construction of all sewer facilities and connection to the District's sewer system for approval by the District. District shall have the right to inspect at any time all such construction and require changes the District deems necessary consistent with the approved plans for proper connection to the District's sewer system. Section 2. Provision of Sewer Services District agrees to provide sewer services to Owner consisting of permitting connection to the District's sewer system for the transport of sewage from the Property to sewer trunk lines owned and operated by the Orange County Sanitation District ("OCSD). Furthermore, Owner and any subsequent owners, successors -in -interest or assigns, shall comply with all applicable District, OCSD, and State laws, regulations, rules, and procedures pertaining to dischargers and discharges into, and the use of, District's facilities. Section 3. Fees and Charges A. Exhibit "B" hereto is a list of the fees and charges applicable for the services of the District to the Property (the "Schedule of Fees"), which is incorporated herein by this reference. Owner or Owner's assignee shall pay to District the fees and charges described on the Schedule of Fees, and as of the date of this Agreement, Owner or Owner's assignee has deposited with the District a portion of such fees and charges in the amount of five thousand four hundred eighty and 49/100 dollars ($5,480.49), which shall be applied in accordance with Exhibit "B". Owner or Owner's assignee shall pay additional fees and charges within thirty (30) days of written notice by the District that additional fees and charges have become due in accordance with Exhibit "B". Owner acknowledges and agrees that Exhibit "B" is an estimate of actual fees and the Schedule of Fees may be subject to 772996.3 revision by the District due to actual costs incurred or fee adjustments applicable in subsequent fiscal years. B. In addition to the fees identified in the Schedule of Fees, the Owner agrees, for itself and any subsequent owners, successors -in -interest or assigns, to pay the District in each year following the commencement of services by District to the Property, an in -lieu fee in the amount of 3% of 1% of the assessed valuation of the Property, which corresponds to the tax rate paid by properties within the District's jurisdiction. In addition, the rate of the in -lieu fee will be subject to an automatic two percent (2%) annual increase in each year of service under this Agreement. C. Owner agrees, for itself and any subsequent owners, successors -in - interest or assigns, that the District shall have the right to collect the fees either directly on the Orange County property tax bill or by invoice to the owner of record for the Property or any portion thereof. The Owner shall undertake the obligation to notify any purchaser of the Property or any portion thereof, or any successor -in -interest or assignee of the Owner with respect to the Property or any portion thereof, of the obligation under this Agreement for the fee payments. D. In the event that the Owner, or any subsequent owner, successor -in - interest or assignee fails to make payment of the fees upon request, then District shall be under no obligation to continue sewer service and the District may discontinue all services to the Property or any portion thereof pursuant to Section 5 below, in addition to any other remedy available to District for such breach, including, but not limited to, all reasonable attorney's fees and costs should District be required to file a legal action to recover amounts due and owing hereunder. E. Any payment received by the District that is later than thirty days (30) following the date of notice of payment due by the District shall incur a one time penalty of ten percent (10%) and shall accrue interest at the rate of three and one-half percent (3'/2%) per month. Section 4. Hold Harmless Except for damages or injuries arising out of the District's sole negligence or its willful acts or omissions, Owner agrees, for itself and any subsequent owners of the Property or any portion thereof, or successors -in -interest or assigns, to indemnify, defend (at Owner's sole cost and expense) and hold the District, its directors, officers, agents and employees harmless from any and all claims, suits, causes of action liabilities, or losses for personal injury, death, or property damage arising out of or in connection with this Agreement or the construction and installation of sewer facilities by Owner or Owner's agent or lessee, the connection or disconnection of the Property to the District's sewer system, or the provision of sewer services to the Property or any portion thereof by the District. Section 5. Term and Termination 772996.3 A. Term. Unless earlier terminated by the District as provided below, this Agreement shall remain in full force and effect until the Owner or any subsequent owners of the Property determine that the sewer services of the District are no longer necessary and the Property has been disconnected from the District's sewer system. B. Termination by District. The District may terminate this Agreement, including the provision of sewer service, for any material breach of this Agreement, including delinquent payment by Owner or any subsequent owner of any portion of the Property, or any successor -in -interest or assignee of the Owners. District shall provide Owner or the owner of record of any portion of the Property with written notice of any material breach of this Agreement. The Owner or the owner of record of any portion of the Property shall have thirty (30) days from the date of notice to cure the breach to the satisfaction of the District. In the event of the District's termination of services under this Agreement for delinquency in payment or other breach, the Owner, the successor -in -interest to the Owner or the owner of record of any portion of the Property shall be responsible for disconnecting the Property from the District's sewer system. The party responsible for making the disconnection shall pay all costs associated with the disconnection and shall submit plans for District approval prior to disconnecting from the District's system. C. Termination by Owner. Owner or any subsequent owners of the Property may terminate this Agreement at any time upon thirty (30) days advance notice to District. However, termination of this Agreement shall only become effective upon disconnection of the Property from the District's sewer system by Owner or the then current owner or owners of the Property. The party responsible for making the disconnection shall pay all costs associated with the disconnection and shall submit plans for District approval prior to disconnecting from the District's system. Section 6. Assignment The rights and obligations under this Agreement may not be assigned without notice to District and written consent of District to the assignment, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, District agrees that Owner may assign certain rights and obligations under this Agreement to any lessee of the Property, provided, however, that Owner's obligations to District pursuant to Section 4 of this Agreement shall continue and survive such assignment. Section 7. Subsequent Owners At the time Owner makes a conveyance of the Property or any portion thereof to a purchaser, Owner shall notify the purchaser of this Agreement and Owner shall notify the District in writing of the name and address of the purchasing party and the portion of the Property conveyed. Section 8. Interpretation and Governing Law This Agreement shall be construed according to its fair meaning and as if prepared by both parties hereto. This Agreement shall be construed in accordance with the laws of the 4 772996.3 State of California in effect at the time of the execution of this Agreement. Section 9. No Waiver No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom enforcement of a waiver is sought. No waiver of any right or remedy in respect to any occurrence or event shall be deemed a waiver of any right or remedy in respect to any other or subsequent occurrence of event. Section 10. Entire Agreement This Agreement contains the entire agreement between the parties with respect to the matters provided for herein. No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties hereto, and no oral understanding or agreement not incorporated herein shall be binding on any of the parties hereto. Section 11. Severability If any part of this Agreement is held, determined or adjudicated to be illegal, void or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be given effect to the fullest extent reasonably possible. Section 12. Notices All notices required to be given under this Agreement shall be deemed given upon deposit in the United States mail, if mailed with prepaid postage, or upon personal delivery to the parties hereto at the following addresses: Owner City of Huntington Beach Attn.: City Manager 2000 Main Street P.O. Box 190 Huntington Beach, CA 92648 District Midway City Sanitary District Attn.: General Manager 14451 Cedarwood Street Westminster, CA 92683 Section 13. Due Authorization Each of the persons executing this Agreement on behalf of Owner and District warrant and represent that they are duly authorized having full power and legal authority to bind their respective parties to the terms of this Agreement, and each respective party has the full right, power, capacity and authority to enter into this Agreement and perform all of its 772996.3 provisions and obligations. IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed on the date and year set forth above. DISTRICT MIDWAY CITY SANITARY DISTRICT Margie L. Rice President ATTEST: Joy L. Neugebauer Secretary APPROVED AS TO FORM: in Thomas F. Nixon General Counsel CITY OF HUNTINGTON BEACH Don Hansen Mayor ATTEST: INITIA ED AND APPROVED: Director of Economic Development �G��---• ,IJT�1 . - APPROVED AS TO FORM: J c B Cit y Attorney 5•l'1'12 6 772996.3 "EXHIBIT A" LEGAL DESCRIPTION OF PROPERTY All that certain real property situated in the County of Orange, State of California, described as follows: Parcels 1 and 2 of Parcel Map No. 90-327, in the City of Huntington Beach, County of Orange, State of California, as per map recorded in Book 279 Page 33 and 34 of Parcel Maps, in the Office of the County Recorder of said County. Assessor's Parcel Number: 142-073-03 7 772996.3 "EXHIBIT B" SCHEDULE OF FEES AND CHARGES CONNECTION FEES �l Connection fee ($806 per unit non-residential) Park Bathroom $806.00 3000 sq. ft. retail building $806.00 USER CHARGES AND IN -LIEU FEES �l Sewer user fees in the amount of the then $265.91 current District fees per unit of service per year Adjustable �l The amount in lieu of the reallocation of an $261.58 increment of the property taxes for the Property Adjustable subject to sewer services (3% of 1 % of the assessed valuation) per year. Assessed value for FY ending 6/30/2010 is $871,930. �l Sewer Capacity Fees collected on behalf of the $3,341.00 OCSD. 772996.3 Recorded at the request of and mail to: Midway City Sanitary District 14451 Cedarwood Street Westminster, CA 92683 Fee Exempt Per I►����cy��rx��x3 COVENANT AND AGREEMENT FOR PROVISION OF SEWER SERVICE City of Huntington Beach ("Owner') hereby certifies that it is the owner of real property located in the City of Huntington Beach, State of California, Assessor's Parcel Number 142-073-03, which is legally described as follows: SEE LEGAL DESCRIPTION ATTACHED HERTO AT EXHIBIT "A". Owner hereby agrees and covenants with the Midway City Sanitary District ("District") that the above legally - described property, which is outside the District's jurisdictional boundaries, shall receive sewer service by the District subject to the attached Agreement for Provision of Sewer Services and subject to all applicable regulations of the District and all applicable laws thereto, as they may be amended from time to time. This covenant and agreement shall run with all of the above -described land and shall be binding upon the Owner, and all future owners, encumbracers, their successors, heirs or assignees and shall continue in effect until released by the authority of the Board of Directors of the District subject to all applicable fees and evidence that this Covenant and Agreement is no longer required by regulation`, law, or agreement. Authorized Signature(s) Name Title Dated this day of 2012. NOTARY ACKNOWLEDGEMENT STATE OF CALIFORNIA, ) COUNTY OF ORANGE On before me, Notary Public personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is(are) subscribed to the within instrument and acknowledged to me that he/she/they executed same in his/her/their authorized capacity, and that by his/her/their 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. Signature: (seal) 772996.3 Exhibit "A" Legal Description of Property All that certain real property situated in the County of Orange, State of California, described as follows: Parcels 1 and 2 of Parcel Map No. 90-327, in the City of Huntington Beach, County of Orange, State of California, as per map recorded in Book 279 Page 33 and 34 of Parcel Maps, in the Office of the County Recorder of said County. Assessor's Parcel Number: 142-073-03 2 772996.3 I _ --� - - _ - - - - - - _ t.- - _ _ S `III ,. �� .. a � _ � ,'�� — -- I' — — — --- ;'�� AGREEMENT BETWEEN THE CITY OF HUNTINGTON BEACH AND VF OUTDOOR INC., FOR SEVER SERVICES AT VANS SKATE PARK PARCEL THIS AGREEMENT is made and entered into this, day of --V&AA� 2012, by and between the City of Huntington Beach ("City") and VF Outdoor Inc. a Delaware corporation ("Vans"); City and Vans shall sometimes be referred to collectively as the "Parties." RECITALS WHEREAS, Vans wishes to receive sewer services for the property legally described on Exhibit "A" attached hereto, which is located approximately between McFadden Avenue and Center Avenue, East of Gothard Street, in the City of Huntington Beach, County of Orange, State of California, and which consists of Assessor's Parcel Number 142-073-03 ("the Property"); and The Midway City Sanitary District ("District") is a sanitary district formed under the Sanitary District Act of 1923, which provides sewer services to all customers within its jurisdiction; and The Property is located within the jurisdictional boundaries of the City for purposes of sewer service; however, the District's sewer lines are in close proximity to the Property, and it is more convenient and economical for Vans to connect the Property to the District's sewer lines than the City's sewer lines; and Vans has requested and City has agreed to allow Vans to connect to the District line, however, the District required the City and not Vans to enter into an Agreement with the District to provide sewer services to the Property; and Vans has agreed to pay all fees and charges of the District and assume certain liability in connection with the provision of sewer services assumed by the contract between the City and District; and The City finds that it is in the public interest to permit Vans to connect to the District's sewer lines. AGREEMENT NOW, THEREFORE, the Parties agree as follows: Section 1. Construction of Facilities A. Vans shall construct and own all sewer facilities, which are necessary to connect to the District's sewer system. All building connections, street laterals and appurtenances thereto shall be maintained in a safe and sanitary condition, and all devices 1 11-2992/79469 or safeguards which are required by District regulations of the City shall be maintained in good working order by Vans. All such building connections, street laterals, appurtenances, and devices shall be maintained by Vans. B. Any public collector or main sewer line required to be constructed or extended to connect the Property to District's sewer system shall be constructed and paid for by Vans at Vans sole cost, then upon completion the same shall be dedicated to, and accepted by the District pursuant to the contract between the City and District. Once accepted by District, District accepts all liability arising out of the ownership of said sewer facilities subsequent to District's acceptance thereof, except for liability directly caused by Vans as provided in the agreement between the City and District. C. Prior to construction of the sewer facilities, Vans shall submit plans and specifications for construction of all sewer facilities and connection to the District's sewer system for approval by the City and the District. City and the District shall have the right to inspect at any time all such construction and require changes the District deems necessary consistent with the approved plans for proper connection to the District's sewer system (except to the contributory extent of the negligence or wrongful acts of the District, the City or other third parties). Section 2. Provision of Sewer Services District has agreed to provide sewer services to City consisting of permitting connection to the District's sewer system for the transport of sewage from the Property to sewer trunk lines owned and operated by the Orange County Sanitation District ("OCSD). Furthermore, City has agreed that any subsequent owners, successors -in -interest or assigns, shall comply with all applicable District, OCSD, and State laws, regulations, rules, and procedures pertaining to dischargers and discharges into, and the use of, District's facilities. As such, Vans specifically agrees that it will comply with the above requirements. Section 3. Fees and Charges A. City and District agreed to a list of the fees and charges applicable for the services of the District to the Property (the "Schedule of Fees"), which is attached as Exhibit B and incorporated herein by this reference. Vans shall pay to the City which will then be passed on to the District the fees and charges described on the Schedule of Fees, and as of the date of this Agreement. Vans will provide to the City a portion of such fees and charges in the amount of Five Thousand Four Hundred Eighty Three and 12/100 dollars ($5,483.12), which shall be applied in accordance with Exhibit "B" which will then be passed on to District. Vans shall pay additional fees and charges within thirty (30) days of written notice by the City that additional fees and charges have become due in accordance with Exhibit "B." Vans acknowledges and agrees that Exhibit "B" is an estimate of actual fees and the Schedule of Fees may be subject to revision by the District due to actual costs incurred or fee adjustments applicable in subsequent fiscal years. B. In addition to the fees identified in the Schedule of Fees, Vans agrees, for itself and any subsequent owners, successors -in -interest or assigns, to pay the City in each year following the commencement of services by District to the Property, an in -lieu 2 11-2992/79469 fee in the amount of 3% of 1% of the assessed valuation of the Property, which corresponds to the tax rate paid by properties within the District's jurisdiction. In addition, the rate of the in -lieu fee will be subject to an automatic two percent (2%) annual increase in each year of service under this Agreement. This fee will be passed on to the District as required in separate agreement between the City and District. C. Vans agrees, for itself and any subsequent owners, successors -in -interest or assigns, that the District or the City shall have the right to collect the fees either directly on the Orange County property tax bill or by invoice to the owner of record for the Property or any portion thereof. Vans shall undertake the obligation to notify any purchaser of the Property or any portion thereof, or any successor -in -interest or assignee of Vans with respect to the Property or any portion thereof, of the obligation under this Agreement for the fee payments. D. In the event that Vans, or any subsequent owner, successor -in -interest or assignee fails to make payment of the fees upon request, then the City and District shall be under no obligation to continue sewer service and the District may discontinue all services to the Property or any portion thereof pursuant to Section 5 below, in addition to any other remedy available to City or District for such breach, including, but not limited to, all reasonable attorney's fees and costs should District be required to file a legal action to recover amounts due and owing hereunder. E. If the payment required by this section is not received by City's Finance Department within ten (10) calendar days after the end of the month for which the payment is paid, or the next business day if the tenth day falls on a weekend or holiday, the following late charge and penalty: 1) a late charge of ten percent (10%) shall be applied to any outstanding balance after any payment hereunder is due but unpaid; and 2) one and one-half percent (1-1/2%) penalty per month shall be added for each month such payment hereunder is due but unpaid. All payment to City shall be remitted to P.O. Box 711, Huntington Beach, CA 92648-0711. Section 4. Hold Harmless Except for damages or injuries arising out of the City's sole negligence or its willful acts or omissions, Vans agrees, for itself and any subsequent owners of the Property or any portion thereof, or successors -in -interest or assigns, to indemnify, defend (at Vans sole cost and expense) and hold the City, its directors, officers, agents and employees harmless from any and all claims, suits, causes of action liabilities, or losses for personal injury, death, or property damage arising out of or in connection with this Agreement or the construction and installation of sewer facilities by Vans, the connection or disconnection of the Property to the District's sewer system, or the provision of sewer services to the Property or any portion thereof by the District. 3 11-2992/79469 Section 5. Term and Termination A. Term. Unless earlier terminated by the City as provided below, this Agreement shall remain in full force and effect until the Vans or any subsequent owners of the Property determine that the sewer services of the District are no longer necessary and the Property has been disconnected from the District's sewer system. B. Termination by City. City or any subsequent owners of the Property may terminate this Agreement at any time upon thirty (30) days advance notice to Vans. However, termination of this Agreement shall only become effective upon disconnection of the Property from the District's sewer system by Vans or the then current owner or owners of the Property. The party responsible for making the disconnection shall pay all costs associated with the disconnection and shall submit plans for District approval prior to disconnecting from the District's system. Section 6. Assi nment The rights and obligations under this Agreement may not be assigned without notice to District and written consent of District to the assignment, which consent shall not be unreasonably withheld. Section 7. Notices All notices required to be given under this Agreement shall be deemed given upon deposit in the United States mail, if mailed with prepaid postage, or upon personal delivery to the parties hereto at the following addresses: If to City If to Vans City of Huntington Beach VF Outdoor Inc., Attn: Director of Economic Development 6550 Katella Ave 2000 Main Street Cypress, CA 90363 Huntington Beach, CA 92647 Attn: Doug Palladini Section 8. Interpretation and Governing Law This Agreement shall be construed according to its fair meaning and as if prepared by both parties hereto. This Agreement shall be construed in accordance with the laws of the State of California in effect at the time of the execution of this Agreement. Section 9. No Waiver No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom enforcement of a waiver is sought. No waiver of any right or remedy in respect to any occurrence or event 4 11-2992/79469 shall be deemed a waiver of any right or remedy in respect to any other or subsequent occurrence of event. Section 10. Entire Agreement This Agreement contains the entire agreement between the parties with respect to the matters provided for herein. No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties hereto, and no oral understanding or agreement not incorporated herein shall be binding on any of the parties hereto. Section 11. Severability If any part of this Agreement is held, determined or adjudicated to be illegal, void or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be given effect to the fullest extent reasonably possible. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their authorized offices the day, month and year first above written. VF Outdo r Inc. a D laware corporation CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California B print name ITS: (circle one) Chairman/President/Vice President Mayor AND n B City Cler < .,Vc4y L,-i rJ print name INI I AND APPROVED: ITS: (circle one) Secretary/Chief Financial Officer/Asst. Secretary - Treasurer hp REVIE D APPROVED: C y Manager Director of Economic Development ROVED AS TO FORM: 4 City Attorney �r_ 7 t� ,. 11-2992/79469 "EXHIBIT A" LEGAL DESCRIPTION OF PROPERTY All that certain real property situated in the County of Orange, State of California, described as follows: Parcels 1 and 2 of Parcel Map No. 90-327, in the City of Huntington Beach, County of Orange, State of California, as per map recorded in Book 279 Page 33 and 34 of Parcel Maps, in the Office of the County Recorder of said County. Assessor's Parcel Number: 142-073-03 "EXHIBIT B" SCHEDULE OF FEES AND CHARGES CONNECTION FEES Connection fee ($806 per unit non-residential) Park Bathroom $806.00 3000 sq. ft. retail building $806.00 USER CHARGES AND IN -LIEU FEES Sewer user fees in the amount of the then $265.91 current District fees per unit of service per year Adjustable �I The amount in lieu of the reallocation of an $261.58 increment of the property taxes for the Property Adjustable subject to sewer services (3% of 1 % of the assessed valuation) per year. Assessed value for FY ending 6/30/2010 is $871,930. �I Sewer Capacity Fees collected on behalf of the $3,341.00 OCSD.