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Sewer Cost Share Loan & Repayment Agreement And Notice of Lien APN xxx-xxx-xxx 1 of 10 Recording Requested by: City of Modesto Return to: P.O. Box 642 Modesto, CA 95353 APN: Address: SEWER COST SHARE LOAN AND REPAYMENTAGREEMENT AND NOTICE OF LIEN This Sewer Cost Share Loan and Repayment Agreement and Notice of Lien (“Agreement”) is made, entered into and is effective on the day of by and between the CITY OF MODESTO, a municipal corporation (“City”) and WHEREAS, Owner owns certain real property located within the City of County of Stanislaus, State of California, more particularly described on Exhibit attached hereto and incorporated herein by reference (“Property”); and WHEREAS, Owner desires to repair the sewer lateral that delivers sewage from the private residence to the sewer main; and ---PAGE BREAK--- Sewer Cost Share Loan & Repayment Agreement And Notice of Lien APN xxx-xxx-xxx 2 of 10 WHEREAS, Owner acknowledges that the sewer lateral located from the property line to the sewer main is located within the City right-of-way; and WHEREAS, Owner desires to participate in the City’s Sewer Cost Share Program (“SCSP”) that assists property owners when repairing or replacing the private sewer line located within the public right-of-way to offset the cost for the removal and replacement of City-owned street improvements (pavement, curb, sidewalks) (“Cost Share Repairs”); and WHEREAS, City has approved the Owner’s application, inspected the sewer lateral, and approved three contracted written quotes for Cost Share Repairs; and WHEREAS, City has approved the lowest written quote in the amount of for Cost Share Repairs by of CA (“Contractor”; and WHEREAS, Owner is responsible for fifty percent (50%) of the lowest quoted cost for the Cost Share Repairs; and WHEREAS, Owner desires to exercise a loan in the amount of (fifty percent (50%) of the lowest quoted bid for the Cost Share Repairs); and WHEREAS, the City has determined that it is appropriate to exercise a Sewer Cost Share Program loan pursuant to Modesto City Council Resolution No. 2014-514, adopted on December 2, 2014. NOW, THEREFORE, in consideration of the mutual covenants, promises and agreements herein contained, the parties hereto agree as follows: ---PAGE BREAK--- Sewer Cost Share Loan & Repayment Agreement And Notice of Lien APN xxx-xxx-xxx 3 of 10 1. Owner agrees to pay an administration fee of TWO HUNDRED FIFTY DOLLARS and 00/100 ($250.00) to process the Agreement, and agrees that the City has no duty to proceed with issuance of an encroachment permit until the administration fee is paid. 2. Owner agrees to pay a Title Guarantee fee of ONE-HUNDRED DOLLARS and 00/100 ($100.00) to verify the ownership of the Property. 3. Owner agrees to pay a recording fee of TWENTY DOLLARS and 00/100 ($20.00) to remove the lien with the final loan payment. 4. City accepts the lowest approved quote of as submitted by Contractor for Cost Share Repairs; 5. City agrees to pay fifty percent (50%) towards the cost of the Cost Share Repairs; 6. City shall advance Owner the remaining fifty percent (50%) of the Cost Share Repairs on the terms and conditions set forth in this Agreement; 7. Upon completion of work, City shall remit payment of directly to Contractor; 8. Owner’s desire to exercise a Sewer Cost Share Loan and Repayment Agreement (“Cost Share Loan”) for the Cost Share Repairs is authorized by City Council Resolution No. 2014-514, adopted on December 2, 2014. 9. Owner shall pay the loan in accordance with the following schedule: a. Owner shall pay fifty percent (50%) of the Cost Share Repairs, plus interest, in no more than 4 installments 6 installments 8 installments ---PAGE BREAK--- Sewer Cost Share Loan & Repayment Agreement And Notice of Lien APN xxx-xxx-xxx 4 of 10 10 installments 12 installments However, the final installment shall be in the amount of the outstanding balance then due under this Agreement, including all interest accrued and collection costs incurred. A Repayment Schedule is attached as Exhibit B. b. Each installment shall be placed on the Owner’s Stanislaus County Tax Roll, however, the final installment shall be in the amount of the outstanding balance then due under this Agreement, including all interest accrued and collection costs incurred. A Loan Payment Schedule is attached as Exhibit B. c. Notwithstanding the foregoing, the remaining unpaid balance of the Sewer Cost Share Loan, including interest, shall immediately become due and payable on the sale, transfer or refinancing of the Property. d. Notwithstanding the foregoing, in the event Owner is fifteen (15) or more business days delinquent with respect to any installment payment, the outstanding balance of the Sewer Cost Share Loan shall be immediately become due and payable. 8. The annual interest rate shall be equal to the Wall Street Journal Prime Rate on the date this Agreement is fully executed (see Exhibit Interest accrual shall commence on that date and be compounded annually until all amounts due under this Agreement are paid in full. 9. Owner and each successive owner shall notify City of any sale or pending escrow to ensure timely payment of the Sewer Cost Share Loan. ---PAGE BREAK--- Sewer Cost Share Loan & Repayment Agreement And Notice of Lien APN xxx-xxx-xxx 5 of 10 10. As security for payment of the remaining balance of the Sewer Cost Share Loan, plus interest, Owner hereby consents to having the Sewer Cost Share Loan added to and collected with the annual real property tax assessment on the Property. Owner understands, acknowledges, and agrees that all the procedures and remedies provided by law for nonpayment and/or late payment which apply to real property tax collection shall likewise apply to the collection of the remaining balance of the Sewer Cost Share Loan in the event the City does so elect. Owner understands and agrees that the County of Stanislaus may charge a fee to City for collecting and disbursing to City the Sewer Cost Share Loan. Owner agrees to pay said fees, if any, along with the annual installments provided for in Paragraph 7. 11. In the event the City does not elect the procedure set forth in Paragraph 10, above, Owner agrees to make all payments required hereunder directly to City. If Owner fails to make any payment due herein, this Agreement is breached and, in addition to the procedures and remedies provided by law for the collection of real property taxes, the City shall have every other remedy entitled to it by law for the collection of liens, including but not limited to, withholding or revoking the certificate of occupancy, foreclosure on the Property, and recovering the unpaid balance plus interest as a personal obligation of Owner. 12. Owner agrees for it, and all subsequent owners of or parties who shall acquire any property interest in the Property (Owner assumes a duty to notify of this provision of this agreement) that City may cut off utility services to the Property to compel payment of the Sewer Cost Share Loan after City provides fifteen (15) calendar days’ notice to Owner and to any parties know to City to have an interest in the Property, of breach of this Agreement, and fifteen (15) days for cure to be made to the City’s sole satisfaction. City may require reasonable interest to be paid on Sewer Cost Share Loan amounts owed either in a lump sum with interest, if any, or ---PAGE BREAK--- Sewer Cost Share Loan & Repayment Agreement And Notice of Lien APN xxx-xxx-xxx 6 of 10 arrange further payment terms in its sole discretion. Owner agrees to hold City harmless from and defend it from any proceeding, claim cost, loss or damage whatsoever arising out of or relating to City’s exercise of its rights under this or any other provision of this agreement. 13. This Agreement shall be executed by the parties and recorded prior to the issuance of an encroachment permit. The following are the addresses of the parties: CITY: City of Modesto Attn: Infrastructure Financing Programs P.O. Box 642 Modesto, CA 95353 [PHONE REDACTED] (phone) [PHONE REDACTED] (fax) OWNER: 14. This Agreement shall be recorded against the Property, at the expense of Owner, and shall constitute notice to all successors and assigns of the title to the Property and of the obligations herein set forth herein. The provisions of this Agreement shall constitute covenants which shall run with the Property and the benefits and burdens hereof shall bind and inure to all successors in interest to the parties hereto. 15. All claims, controversies, or disputes arising out of, or relating to the formation of this Agreement, or the breach, termination execution, enforcement, interpretation, or validity of this Agreement, including the determination of the scope or applicability of this contract provision shall be determined by binding arbitration in Modesto, California, by one arbitrator, except as otherwise specified in this Agreement. The American Arbitration Association shall administer the arbitration under its Arbitration Rules then in effect, subject to the modifications of those rules contained in this paragraph. This agreement to arbitrate shall be specifically ---PAGE BREAK--- Sewer Cost Share Loan & Repayment Agreement And Notice of Lien APN xxx-xxx-xxx 7 of 10 enforceable under the prevailing law of any court having jurisdiction, and the award rendered by the arbitrator may be entered in any court having jurisdiction. The appropriate venue for any arbitration or court proceeding relating to or arising out of this provision shall be in Stanislaus County, California. This paragraph is not intended to and does not waive the claim filing requirements found in California Government Code section 900 et seq. In the event that a timely and legally sufficient, arbitrable claim is filed by Owner with City, and the claim is rejected in whole or in part by City, this paragraph shall result in the conclusive, final, and binding resolution of all the issues presented in the claim by Owner so long as any issues presented by the claim are arbitrable. Claims rejected by City or by operation of law, shall be submitted by Owner to arbitration pursuant to the Arbitration Rules of the American Arbitration Association within ninety (90) days after mailing of the written rejection by City to Owner. Otherwise, the claim or claims shall be deemed waived in their entirety. The “fast track’ rules of the American Arbitration Association shall apply to any claim or counterclaim less than ONE HUNDRED FIFTY THOUSAND AND 00/100 ($150,000.00) DOLLARS. In arbitration not proceeding under the “fast track” rules, the arbitrator shall have the power to order that depositions be taken and other discovery be made. Both City and Owner shall have the right, upon written notice, to take no more than three depositions of the other as a matter of right in an arbitration proceeding under the “fast track” rules. Whether or not City and Owner may be engaged in interstate commerce, any controversy or dispute mentioned above shall be determined by, and the parties shall be bound ---PAGE BREAK--- Sewer Cost Share Loan & Repayment Agreement And Notice of Lien APN xxx-xxx-xxx 8 of 10 by, the substantive law of the State of California, and not the Federal Arbitration Act at 9 USC Section 1 et seq. The arbitrator may grant any remedy or relief deemed by the arbitrator just and equitable under the circumstances, whether or not such relief could be awarded in a court of law. The arbitrator shall be empowered to award monetary sanctions against a party for failure of cooperation in the arbitration. The arbitrator shall, in written award, allocate all the costs of the arbitration, including the fees of the arbitrator and the reasonable attorney fees of the prevailing party, against the party who did not prevail. The prevailing party shall be the party in whose favor the majority of the central issues in the case are resolved. Notwithstanding anything in this provision to the contrary, the arbitrator shall have no power to award punitive damages or other damages not measured by the party’s actual damages (excluding litigation costs and fees) against any party. This limitation of the arbitrator’s powers under this Agreement shall not operate as an exclusion of the issue of punitive damages from this Agreement to Arbitrate sufficient to vest jurisdiction in a court with respect to that issue. Owner shall include in all subcontracts a specification whereby the subcontractor consents to being joined in an arbitration between City and Owner involving the work of the subcontractor to be joined. Owner’s failure to do so shall be a breach of this Agreement. The parties hereby waive any rights provided by Title 9.2 of the California Code of Civil Procedure, Section 1296. The arbitrator’s award shall be deemed final, conclusive and binding to the fullest extent allowed by California law. ---PAGE BREAK--- Sewer Cost Share Loan & Repayment Agreement And Notice of Lien APN xxx-xxx-xxx 9 of 10 16. This Agreement shall be binding on the heirs, successors, and assigns of the parties hereto. This Agreement may be amended or modified only by written instrument signed by all parties. Any Amendment shall expressly refer to this Agreement. 17. The waiver of any action, obligation or commitment required by this Agreement shall be in writing and shall not constitute a waiver of any other or subsequent action, obligation or commitment required by this Agreement, unless specifically stated in writing. 18. This Agreement shall be governed according to the laws of California. 19. The language of all paragraphs, terms, or provisions of this Agreement shall be interpreted as a whole, according to its fair meaning, and not for or against any party hereto. 20. Time is of the essence in the performance of all actions required pursuant to this Agreement. 21. This Agreement will terminate and be of no further force, effect or benefit to Owner if Owner fails to obtain an encroachment permit for the Property within one year from the effective date of this Agreement. ---PAGE BREAK--- Sewer Cost Share Loan & Repayment Agreement And Notice of Lien APN xxx-xxx-xxx 10 of 10 IN WITNESS WHEREOF, City has authorized the execution of this Agreement, in duplicate, by its City Manager and attestation by its City Clerk, on the day of and Owner has caused this Agreement to be executed in duplicate. CITY OF MODESTO, a municipal corporation By: JOSEPH P. LOPEZ, City Manager ATTEST: By: DIANE NAYARES-PEREZ, City Clerk (SEAL) APPROVED AS TO FORM: By: JOSE M. SANCHEZ, City Attorney OWNER: By: (signature) (print name) By: (signature) (print name)