13-1001_COVE ESTATES, LLC_Agenda Report D510/1/2013
illl'\'¥6t'
·~·
05
City of San Jua Capistrano
Agen · · 'e ,art
/
Karen P. Brust, City ~ TO:
FROM: Keith Van Der Maaten, P. · 1., Public Works and Utiljties:: ·
Prepared by: Joe Mankawich, Associate Engine~:("",(>~
/:/'~/"#'-4'/'
October 1 , 2013 ?~:;,/ DATE:
SUBJECT: Consideration of Approval of Subdivision Improvement Agreement for
Tract 16168, Via Flor, LLC. (Village Alipaz, 4 Residential Lots)
RECOMMENDATION:
By Motion:
1. Authorize the Mayor and City Clerk to execute and deposit into Escrow the
Subdivision improvement Agreement with Via Flor, LLC ("Developer"), and
accept the corresponding Security Instruments; and,
2. Execute and deposit into Escrow (i) a termination document ('Termination") in
a recordable form acceptable to the City Attorney, terminating the existing
Subdivision Improvement Agreement with First American Title Company,
including all extensions, and (ii) a document exonerating the corresponding
First American Bonds; and,
3. Providing all applicable documents and Security Instruments have been
deposited into Escrow, instruct the escrow officer for the Escrow to do the
following concurrently with the Developer's acquisition of fee title to the
Property: (i) record the new Subdivision Improvement Agreement with the
Developer; (ii) record the Termination; (iii) release to the bonding company of
the First American Bonds the document exonerating the First American
Bonds; and (iv) release the Developer replacement Security Instruments to
the City.
City Council Agenda Report
October 1, 2013
Page 2 of4
EXECUTIVE SUMMARY:
First American Title Company ("First American") is the current owner of the
approximately one acre vacant land subdivision located within the existing gated Village
Alipaz community, accessible from Alipaz Street, across from South Coast Farms
("Property"), upon which it is contemplated will be developed for four residential homes.
Via F.lor, LLC ("Developer") is in escrow to purchase the Property from First American.
A condition to the closing of the sale of the Property from First American to the
Developer is the termination of the existing Subdivision Improvement Agreement for the
Property between First American and the City and the exoneration of the corresponding
bonds ("First American Bonds"). In order to approve such termination and exoneration,
the City requires that the Developer enter into a . new Subdivision Improvement
Agreement with the City and provide replacement security. In order for the new
Subdivision Improvement Agreement and replacement security to become operative,
the Developer must acquire fee title to the Property. All of the foregoing events
("Events") are interdependent and must occur simultaneously with the Developer's
acquisition of the Property. Accordingly, the Events must be effectuated through an
escrow ("Escrow") to allow for such a simultaneous occurrence. The consummation of
the Events through the Escrow is referred to herein as the "Closing." The Developer
has submitted a new Subdivision Improvement Agreement for Final Tract Map 16168
for City Council consideration and approval.
The Final Map was approved by the City Council in February 2011. The improvement
plans have been previously approved by the City Engineer and were found to be in
substantial conformance with the Tentative Tract Map and the Subdivision Map Act. As
a condition to the Closing, the City will require that all appropriate replacement bonds
have been approved by the City and placed into the Escrow with an instruction that the
bonds are to be released to the City on the Closing. The Developer has signed the
Subdivision Improvement Agreement (Attachment 1). All applicable conditions of
approval set forth in Resolution 05-11-01-04 for Tentative Tract Map 16168, (available
at the City Clerk's office for review) have been met.
DISCUSSION/ANALYSIS:
On November 1, 2005, the City Council adopted Resolution No. 05-11-01-04
conditionally approving Vesting Tentative Tract Map 16168, consisting of 4 residential
lots on 1 acre of land subdivision for Village Alipaz LLC.
On February 11, 2011, the City Council approved the Final Map and the Subdivision
Improvement Agreement for Tract 16168 which was submitted by First American Title
Company who took title of the property from Village Alipaz LLC.
Per State law and Municipal Code, the City Council is required to consider and approve
the Final Map and accompanying Agreements if it finds that all requirements of the
previously conditionally approved Tentative Map have been satisfied and adequate
City Council Agenda Report
October 1, 2013
Page 3 of 4
financial security provisions have been made to guarantee compliance with those
requirements.
The map and all project related improvement plans for Tract 16168 have been
previously reviewed and approved by the City Engineer. The City's Development
Services Director has approved the covenants, conditions and restrictions (CC&R's).
The final items listed below have been reviewed and found to be in substantial
compliance with the requirements of the Final Tract Map:
1. Applicable Subdivision fees
2. Subdivision Improvement Agreement signed by the Developer
Prior to and as a condition to the Closing, Faithful Performance and Labor and Material
bonds for the following in such form as approved by the City, securing the Developer's
obligations under the Subdivision Improvement Agreement, will be deposited into the
Escrow and released to the City at the Closing ("Security Instruments"):
1. Private Street and Storm Drain Improvements
2. Public Sewer Improvements
3. Survey Monumentation (Performance Bond only)
4. Water Improvements
5. Landscape and Irrigation (Final plans to be approved prior to first building permit
issuance)
FISCAL IMPACT:
Not applicable.
ENVIRONMENTAL IMPACT:
Environmental approvals were obtained as a condition of approval of the Tentative Tract
Map.
PRIOR CITY COUNCIL REVIEW:
• On November 1, 2005, the City Council adopted Resolution No. 05-11-01-04
conditionally approving Vesting Tentative Tract Map 16168, consisting of four (4)
residential lots on 1 acre of land subdivision for Village Alipaz LLC.
• On February 11, 2011, the City Council approved the Final Map and the
Subdivision Improvement Agreement for Tract 16168 which was submitted by
First American Title Company who took title of the property from Village Alipaz
LLC.
City Council Agenda Report
October 1, 2013
Page 4 of 4
COMMISSION/COMMITTEE/BOARD REVIEW AND RECOMMENDATIONS:
Not applicable.
NOTIFICATION:
Louis Moreno, Via Flor LLC
ATTACHMENT(S):
Attachment 1 -Vicinity Map
Attachment 2-Subdivision Improvement Agreement for Final Tract Map 16168
SUBDIVISION IMPROVEMENT AGREEMENT
SUBJECT: TRACT MAP 16168
THIS AGREEMENT is made this __ day of 2013 between the CITY
OF SAN JUAN CAPISTRANO, a municipal corporation, State of California,
hereinafter referred to as "City" and Via Flor, LLC, a California Limited Liability
Company, whose mailing address is 1105 Quail Street, Newport beach, California
92660, hereinafter referred to as "Subdivider":
WHEREAS, Vesting Tentative Tract Map 16168, previously owned by First
American Title Company, was conditionally approved by the City Council of the City by
Resolution No. 05-11-01-04 and Final Tract Map 16168 was approved by the City Council
of the City on February 15, 2011 and recorded with the County Recorder on May 19, 2011
as Instrument No. 2011 000250069; and
WHEREAS, Subdivider is the current owner of that certain parcel of land situated in
the City of San Juan Capistrano, Orange County, generally described as Tract Map 16168,
and Subdivider proposes to do and perform certain work of improvement thereon as
hereinafter set forth; and
WHEREAS, City desires to assure that said proposed improvements will be done in
a good workmanlike manner and in accordance with the laws now in force and effect in the
City of San Juan Capistrano, California, the terms and conditions of which are incorporated
herein by reference; and
WHEREAS, Subdivider declares that he is familiar with the pertinent regulations
contained in the City Code and in the Subdivision Map Act (Government Code Sections
66410 to 66500) and agrees to comply therewith.
NOW THEREFORE, in consideration of the approval and acceptance by the City
Council of City of said work of improvement ar:1d the acceptance of easements therein
offered for dedication for street and other public purposes and the covenants herein
contained, the parties hereto mutually covenant and agree as follows:
1. General Requirements:
Subdivider shall comply with all the conditions of approval set forth in City Council
Resolution No. 05-11-01-04 for Tentative Tract Map 16168 and shall, at his own
cost and expense, provide all required tests, design work, equipment, materials and
labor in order to complete all of the works of improvement (the "Works of
Improvement"), set forth in Exhibit "A", to the satisfaction of the City Engineer. Such
works of improvement shall include but not be limited to the placement of curb
markers at all proposed street catch basin inlet structures in accordance with the
applicable National Pollution Discharge Elimination System (NPDES) requirement.
1
ATTACHMENT 1
2. Security:
A. Subdivider shall, at all times beginning with the execution of this agreement,
guarantee Subdivider's performance of this agreement by providing City with
the following security instruments (the "Security Instruments"), as required by
the State Subdivision Map Act, on forms approved by City for the purposes
and in the amounts as follows:
(i) A Faithful Performance Bond to ensure faithful performance of this
agreement in regard to said improvements in the amount of 1 00% of
the estimated cost of construction of the improvements and 11 0% of
the estimated cost of the water improvements; and
(ii) A Labor and Materials Bond to secure payment to any contractor,
subcontractor, persons renting equipment or furnishing labor or
materials for the improvements required to be constructed or installed
pursuant to this agreement in the additional amount of 100% of the
estimated cost of construction of the improvements and 11 0% of the
estimated cost of the water improvements; and
(iii) A Subdivision Monument Bond in the amount of 100% of the
estimated cost of setting subdivision monuments as shown in Exhibit
"A".
B. In order to guarantee and warranty the Works of Improvement and in
addition to the security instruments referenced in Paragraph 2(A) above,
Subdivider shall provide to City the following Security Instruments:
(i) Prior to the City's final acceptance of the Works of Improvement and
recordation of a Notice of Completion, Subdivider shall provide to City
a Warranty Bond for Works of Improvement warranting the accepted
Works of Improvement for a period of one (1) year following said
acceptance against any defective work or labor done or defective
material furnished. The amount of such Warranty Bond for Works of
Improvement shall be equal to twenty-five percent (25%) of the
estim~ted construction cost set forth in Exhibit "A", or a suitable
amount determined by the City Engineer.
(ii) Prior to the City's final acceptance of the landscape and irrigation
Works of Improvement, Subdivider shall provide a Landscape and
Irrigation Warranty Bond warranting the landscape and irrigation
Works of Improvement for a period of (1) year following said
acceptance against any defective work or labor done or defective
material furnished for any reason other than improper maintenance.
The amount of such Landscape and Irrigation Warranty Bond shall be
equal to twenty percent (20%) of the landscape architect's estimated
2
construction cost, or a suitable amount determined by the City
Engineer. The Landscape and Irrigation Warranty Bond shall be held
by the development's Homeowners' Association ("HOA").
All Security Instruments required by this agreement, with the exception of the
Landscape and Irrigation Warranty Bond, which is submitted to the development's
HOA, shall be kept on file with the City Clerk. The terms of the Security
Instruments required by this agreement are hereby incorporated in this agreement
by reference.
City Engineer shall release the Faithful Performance Bond upon Subdivider's
written request following acceptance by City of the Works of Improvement and
Subdivider's delivery to City of the Warranty Bond for Works of Improvement.
City Engineer shall release the Labor and Materials Bond upon Subdivider's written
request and following acceptance by City of the Works of Improvement and after
expiration of the time within which lien claims are required to be made pursuant to
Article 3 (commencing with Section 3114) of Chapter 2 of Title 15 of Part 4 of
Division Third of the California Civil Code. If lien claims have been timely filed, City
shall hold the Labor and Materials Bond until (a) such claims have been resolved,
(b) Subdivider has provided a statutory bond, or otherwise as required by
applicable law.
City Engineer shall release the Warranty Bond for Works of Improvement upon
Subdivider's written request following the expiration of the warranty period,
provided no claims are outstanding at that time regarding defective work.
The release of the Landscape and Irrigation Warranty Bond held by the HOA will
be determined by a separate agreement between the developer and the HOA.
2.1 Form of Security Instruments. All Security Instruments shall meet the
following minimum requirements and otherwise shall be in a form
acceptable to the City Attorney:
(i) Any insurance company acting as surety shall have a minimum
rating of A-IX, as rated by the current edition of Best's Key
Rating Guide published by A.M. Best's Company, Oldwick,
New Jersey, 08858; any bank acting as surety shall have a
minimum rating of AA, as rated by Moody's or Standard &
Poor's;
(ii) Payments under the Security Instruments shall be required to
be made (and, with respect to bonds, litigation shall be
required to be instituted and maintained) in the County of
Orange, State of California;
3
(iii) Each of the Security Instruments shall have a minimum term of
one (1) year after the deadline for Subdivider's completing the
Works of Improvement, in accordance with paragraph 3 herein;
(iv) The Security Instruments shall reference Subdivider's
obligations under this Agreement, shall be irrevocable, and
shall · include as an additional obligation secured the
responsibility to compensate City for all of the City's attorneys'
fees and litigation expenses reasonably incurred enforcing its
rights under the Security Instruments.
3. Time of Completion:
All of the Works of Improvement shall be completed within twenty-four (24)
months from the effective date of this Agreement. The time for completion
may be administratively extended by the City Engineer, in writing, for good
cause shown by the Subdivider. Subdivider shall compensate the City for all
costs reasonably incurred in having its authorized representatives perform
the usual and customary engineering services during said extension as
specified in Paragraph 19 below. In the event that Subdivider fails to
complete the Works of Improvement within said period or any approved
extension, the City may complete said work and shall be entitled to recover
the full cost and expenses thereof from Subdivider, or his surety as herein
provided. The City may require Subdivider, or his surety, to pay the City in
advance, sufficient monies to cover the City's cost in completing construction
of said Works of Improvement.
3.1 Force Majeure: Notwithstanding the provisions of paragraph 3 herein,
Subdivider's time for completion of the Works of Improvement shall
be extended for the period of any enforced delay caused due to
circumstances beyond the control and Without the fault of Subdivider,
including to the extent applicable adverse weather conditions, flood,
earthquakes, strikes, lockouts, acts or failures to act of a public
agency (including City), required changes to the Scope of Work
required by City, and similar causes; provided, however, that the
period of any enforced delay hereunder shall not include any period
longer than thirty (30) days prior to City's receipt of a written notice
from Subdivider or its contractor detailing the grounds for Subdivider's
claim to a right to extend its time for performance hereunder.
3.2 Continuous Work: After commencement of construction of the Works
of Improvement (or separable portion thereof), Subdivider shall cause
such work to be diligently pursued to completion, and shall not
abandon the work for a consecutive period of more than thirty (30)
days, events of force majeure excepted.
4
3.3 Reversion to Acreage: In addition to whatever other rights City may
have due, to Subdivider's failure to timely perform its obligations
hereunder, Subdivider recognizes that City reserves the right to revert
the Property to acreage subject to the limitations and requirements
set forth in California Government Code Sections 66499.11-66499.20-
3/4. In this regard, Subdivider agrees that if none of the Works of
Improvement referenced herein have been made within the specified
"Time of Completion" referenced in paragraph 3 above or within the
time allowed herein, whichever is the later, and if City thereafter
initiates proceedings to revert the Property to acreage, any
improvements made by or on behalf of Subdivider after the date City
initiates such action shall not be considered in determining City's
authority to revert the Property to acreage.
4. Effective Date of Agreement:
This Agreement shall not become effective unless and until it has been
approved by the City Council and also accepted for recordation by the
County Recorder of the County of Orange.
5. Utility Deposits-Statement:
Prior to the commencement of any work to be performed within the area
delineated on the Final Map, the Subdivider must file a written statement with
the City Clerk and City Engineer, signed by the Subdivider, to the effect that
Subdivider has made all deposits legally required by such public utility
corporation for the connection of any and all public utilities to be supplied by
such public utility corporation within the subdivision.
6. Permits -Compliance with Law:
Subdivider shall, at Subdivider's expense, obtain all necessary permits and
licenses for the construction of required improvements, give all necessary
notices and pay all fees and taxes required by law.
7. Definitions and Ownership of Improvements:
The term "improvements" means: grading, paving, curbs and gutters,
pathways, storm drains, sanitary sewers, domestic and non-domestic water,
utilities, such as electric, telephone and cable TV, conduits, gas lines,
drainage facilities, traffic controls, landscaping and irrigation, street lights,
and all other required facilities as shown in detail upon plans, profiles and
specifications which have been prepared or are now in final preparation by
engineers acting for Subdivider subject to approval by the City Engineer. No
work on said improvements shall be commenced until plans and profiles
therefore have been submitted to, approved and permitted by the City
5
Engineer. All required public improvements constructed or installed pursuant
to this Agreement shall become the sole exclusive property of the City,
without payment therefore, upon acceptance of said improvements by the
City Council.
8. Obligations of Subdivider:
Notwithstanding the fact that Subdivider's plans and specifications,
completion of the work, and other acts are subject to approval of the City, it is
understood and agreed that any approval by the City thereof shall in no way
relieve Subdivider of satisfactorily performing said work or the related
obligations hereunder. The construction shall be done strictly in accordance
with the plans and specifications including supplementals and revisions
prepared by Subdivider or its registered engineer, and as approved by the
City as being consistent with the City Code and Standards. Subdivider
warrants that its plans and specifications conform as a minimum to said
codes and standards and that they are adequate to accomplish the work in a
good workmanlike manner and in accordance with responsible construction
practices.
In addition to the foregoing, Subdivider shall satisfy all the conditions of
approval set forth on the City approved tentative map for the Property.
Subdivider shall also perform all work and furnish all materials necessary, in
the opinion of the City Engineer and on his order, to complete the Works of
Improvement in accordance with the plans and specifications on file as
hereinbefore specified, or with any changes required or ordered by said
Engineer which, in his opinion, are necessary or required to complete this
work.
9. Intent of Plans and Specifications
The intent of the plans and specifications referenced above is to prescribe a
complete work of improvement, which Subdivider shall perform, or cause to
be performed in a manner acceptable to the City Engineer (or designee) and
in full compliance with all codes and the terms of this Agreement. Subdivider
shall complete a functional or operable improvement or facility, even though
the plans and specifications may not specifically call out all items of work
required for the contractor to complete its tasks, incidental appurtenances,
materials, and the like. If any omissions are made of information necessary
to carry out the full intent and meaning of the plans and specifications,
Subdivider or its contractor shall immediately notify its design engineer who
will seek approval of the City Engineer for furnishing of detailed instructions.
In the event of any doubt or question arising regarding the true meaning of
any of the plans, specifications, or related documents, reference shall be
made to the City Engineer whose decision thereon shall be final.
6
10. Superintendence by Subdivider:
Subdivider shall give personal superintendence to the Works of
Improvement, or have a competent foreman or superintendent, satisfactory
to the City Engineer, on the work at all times during progress, with authority
to act for Subdivider. In the event the Subdivider is not exercising
satisfactory superintendence, the City Engineer may order suspension of all
work within the subdivision until the deficiency is adequately corrected.
11. Repair and Replacements:
Subdivider shall replace, or have replaced, or repair, or have repaired, as the
case may be, or pay to the owner the entire cost of replacement or repairs,
for all survey monuments or for any and all property damaged or destroyed
by reason of any work done hereunder, whether such property be owned by
the United States or any agency thereof, or the State of California, or any
agency or political subdivision thereof, or by the City or by any public or
private corporation, or by any person whomsoever or by combination of such
owners. Any such repair or replacement shall be completed in a reasonable
manner and subject to the approval of the City Engineer and affected
property owner.
12. Inspection by City:
Subdivider shall at all times maintain proper facilities and provide safe
access for inspection by City to all parts of the work and to the shops where
the work is in preparation. The Subdivider shall pay the cost of inspections.
City's inspector shall have the authority to stop any and all work not in
accordance with the requirements contained or referenced in this
Agreement.
The inspection of the work by City shall not relieve Subdivider or the
contractor of any obligations to fulfill this Agreement as herein provided, and
unsuitable materials or work may be rejected notwithstanding that such
materials or work may have been previously overlooked or accepted.
No inspection or acceptance pertaining to specific parts of the Works of
Improvement shall be construed as final acceptance of any part until the
overall final acceptance by City is made. Final acceptance shall not
constitute a waiver by City of defective work subsequently discovered.
The date on which the Works of Improvement will be considered as complete
shall be that date on which the City Council accepts the improvements and
authorizes the City Clerk to file a Notice of Completion with respect thereto.
7
13. Authority of the City Engineer:
All required improvements shall be constructed under the inspection of and
subject to approval of the City Engineer. Therefore, it is mutually agreed by
the parties hereto that the City Engineer shall have the right to reject any or
all of the work to be performed under this contract if such work does not
conform with City Codes and Standards and the plans and specifications
mentioned herein, including subsequent revisions that may have been
previously overlooked during the plan review process. Any damage to the
improvements (existing or new) that occurs during or after installation of work
performed under this Agreement shall be repaired or replaced, by the
Subdivider, to the satisfaction of the City Engineer before the final
acceptance of completed work and release of security. In addition to the
authority granted to the City Engineer elsewhere in this Agreement, the City
Engineer shall have the authority to make a final decision in regard to all
questions which may arise as to the quality and acceptability of materials
furnished and work performed, and all questions as to the satisfactory and
acceptable fulfillment of the terms of this Agreement by Subdivider and
Subdivider's contractor(s).
14. Changes in the Work:
The City Engineer, without invalidating this Agreement and without
notification to any of the sureties referenced in paragraph 2, may order extra
work or may make changes by altering or deleting any portion of the Works
of Improvement as specified herein or as deemed necessary or desirable by
the City Engineer to accomplish the purposes of this Agreement and to
protect the public health, safety, and welfare. It is mutually understood that it
is inherent in the nature of the work contemplated by this Agreement that
some changes in the plans and specifications and related documents may
be necessary during the course of construction to adjust them to field
conditions and to assure the protection of the public health, safety, and
welfare. The City Engineer shall notify Subdivider or Subdivider's
contractor(s) in writing (by Correction Notice) at the time a determination has
been made to require changes in the Works of Improvement. No field
changes performed or proposed by Subdivider or its contractor(s) shall be
binding on City unless approved in writing by the City Engineer.
15. No Warranty by City:
The plans and specifications and related documents for the Works of
Improvement have been prepared by or on behalf of Subdivider or its
consultants or contractors, and City makes no representation or warranty,
express or implied, to Subdivider or to any other person regarding the
adequacy of the plans or specifications or related documents.
8
16. Liability for Performance. Injury or Damage:
Neither the City nor any of its officers or agents shall be liable to Subdivider
or its contractors for any error or omission arising out of or in connection with
any work to be performed under this contract. Additionally, the City shall not
be liable to the Subdivider or to any other person, firm, or corporation
whatsoever, for any injury or damage that may result to any person or
property by or from any cause whatsoever in, on, or about the subdivision of
said land covered by this Agreement, or any part thereof.
17. Indemnifications and Release:
Prior to the commencement of any work pursuant to this contract,
Subdivider's contractors shall furnish to City satisfactory evidence of an
insurance policy written upon a form and by a company (which meets with
the approval of City) insuring City, its officers, agents, and employees against
loss or liability which may arise during the work or which may result from any
of the work herein required to be done, including all costs of defending any
claim arising as result thereof. Minimum liability and property damage
insurance shall be not less than $500,000 for all damages arising out of
bodily injury to or death of one person and not less than $1,000,000 for all
damages arising out of bodily injuries to or death of more than one person in
any one occurrence; and not less than $500,000 for all damages and/or
destruction of property in any one occurrence and not less than $750,000 for
all damages and/or destruction of property during the policy period. Said
policy shall be in favor of Subdivider or its contractors and of the City, its
officers, agents, and employees and shall be maintained in full force and
effect during the life of this Agreement, including extensions. Said policy
shall state by its terms and by an endorsement that it shall not be canceled
until City shall have had at least ninety (90) days' notice in writing of such
cancellation.
The Subdivider hereby releases and agrees to defend, indemnify and hold
the City harmless from and against any and all injuries to and deaths of
persons and injuries to property, and all claims, demands, costs, loss,
damage and liability, howsoever the same may be caused and whensoever
the same may appear, resulting directly or indirectly from the performance or
nonperformance of any or all work to be done in and upon the subject
property and the premises adjacent thereto pursuant to this Agreement, and
also from any and all injuries to and deaths of persons and injuries to
property or other interests and all claims, demands, costs, loss, damage, and
liability, howsoever the same may be caused and whensoever the same may
appear, either directly or indirectly made or suffered by the Subdivider, the
Subdivider's agents, employees, and subcontractors, while engaged in the
performance of said work.
18. Liability of Subdivider:
9
The Subdivider agrees that the use for any purpose and by any person of
any and all of the streets, easements and improvements herein specified
shall be at the sole and exclusive risk of the Subdivider at all times prior to
final acceptance by the City of the completed street and other improvements
thereon and therein; provided that acceptance by the City shall in no way
eliminate or lessen any of the Subdivider's obligations or undertakings
contained in this Agreement. The issuance of any occupancy permits (if
granted) by the City for buildings located within said subdivision shall not be
construed in any manner to constitute an acceptance and approval of any or
all of the required improvements in said subdivision.
19. Subdivider's Expenses:
The Subdivider shall pay these additional expenses:
a. The Subdivider shall cause to be made and/or pay for soil tests made
by a reputable Geotechnical consultant/firm to determine stability,
gradation, bearing, and resistance value of soils within the subdivision
from which to determine the nature and design of appropriate
improvements. The Subdivider shall also pay for all compaction and
related tests necessary to determine that all fill work and the utility
trench backfill has been satisfactorily placed.
b. All service (including plan check and inspection), impact and
connection fees as established by City shall be paid for each lot in the
subdivision in accordance with the City Code.
c. All actual costs for, design, plan check, development process and
inspection incurred by the City in evaluating any proposed or agreed
upon change in work. In no event shall Subdivider be entitled to
additional inspections or final inspection and acceptance of any of the
Works of Improvement until all City fees and charges have been fully
paid, including, without limitation, charges for applicable penalties and
additional required inspections.
Subdivider shall compensate the City for all actual costs reasonably
incurred in having its authorized representatives make the usual and
customary engineering services beyond the specified "Time of
Completion" referenced in paragraph 3 above. Said actual costs
include: inspection of Works of Improvement, engineer design
review, plan check and project development process. Subdivider
agrees to pay the cost of said City services within forty-five (45) days
of invoice date, or as determined by the City Engineer.
20. Relationship of Contractors:
10
It is hereby mutually covenanted and agreed by the parties hereto that
Subdivider's contractors are not agents of the City, and that the contractors'
relations to City, if any, are those of independent contractors.
21. Certification of Satisfactory Completion:
Upon the satisfactory completion of the Works of Improvement by the
Subdivider, the City Engineer shall certify that the Works of Improvement
have been satisfactorily completed.
22. Repairs or Reconstruction of Defective Work:
If, within a period of one year after City Council acceptance of the
improvement work performed under this Agreement, any of the
improvements or work done under this Agreement fails to fulfill any of the
requirements of this Agreement, or the specifications referred to herein,
Subdivider shall without delay and without any cost to the City (upon receipt
of written notice from the City), repair or replace or reconstruct any defective
or otherwise unsatisfactory part or parts of the work or structure. Should
Subdivider fail to act promptly or in accordance with this requirement, or
should the exigencies of the case require repairs or replacements to be
made before Subdivider can be notified, City may, at its option, make the
necessary repairs or replacements or perform the necessary work and
Subdivider shall pay to City the actual cost of such repairs plus an amount
equivalent to the current general City overhead costs.
23. Warranty:
Without limiting the foregoing, Subdivider warrants and guarantees:
materials used and workmanship performed on said work for a period of one
( 1) year after completion and acceptance thereof by the City, the setting of all
required Final Map monuments and agrees to maintain all required
landscaping in a vigorous and thriving condition for a period of twelve (1)
year after completion and written acceptance thereof by the Public Works
Director and by the Homeowner's Association respectively. Only the
warranty security for the landscape improvement shall be posted with the
Homeowner's Association. All other security instruments shall be submitted
to the City in accordance with Section 2 above. The warranty provided
herein shall not be in lieu of, but shall be in addition to, any warranties or
other obligations otherwise imposed by law.
24. Default:
24.1 Remedies Not Exclusive: In any case where this Agreement provides
a specific remedy to City for a default by Subdivider hereunder, such
11 '
remedy shall be in addition to, and not exclusive of, City's right to
pursue any other administrative, legal, or equitable remedy to which it
may be entitled.
24.2 City Right to Perform Work: In addition to whatever other rights or
remedies it may have for Subdivider's default hereunder, in the event
Subdivider shall fail to timely perform any work required to be
performed under this Agreement and such failure shall continue for a
period of thirty (30) days after receipt of written notice of default from
City, or thereafter Subdivider shall fail to diligently pursue the cure of
any such default to completion, City shall have the right to enter into
the Property and perform any of the uncompleted work by force
account or contract or both and thereupon recover from Subdivider
and the surety company, or both, the full cost and expense thereby
incurred by City.
24.3 Attorney's Fees and Costs:
In the event of any litigation arising out of Subdivider's performance of
its obligations under this Agreement or under any of the Security
Instruments referenced herein, the prevailing party in such action, in
addition to any other relief which may be granted, shall be entitled to
recover its reasonable attorney's fees and costs. Such attorney's fees
and costs shall include fees and costs on any appeal, and in addition
a party entitled to attorney's fees and costs shall be entitled to all
other reasonable costs incurred in investigating such action, taking
depositions and discovery, retaining expert witnesses, and all other
necessary and related costs with respect to the litigation. All such
fees and costs shall be deemed to have accrued on commencement
of the action and shall be enforceable whether or not the action is
prosecuted to judgment.
25. Notice of Completion:
Upon approval of the Works of Improvement by the City Engineer and
acceptance by the City Council, the Subdivider shall file with the Orange
County Recorder a Notice of Completion of the improvements herein
specified.
26. Filing of Improvement Plans:
Upon completion of the job and prior to final acceptance of the Works of
Improvement by the City, the Subdivider shall submit to the City Engineer for
review and approval, one Mylar (4 mils) set of "record" drawings as well as
digital copies of all improvement plans in accordance with the latest edition of
the City of San Juan Capistrano Digital Submission Standards. These
12
drawings shall be certified and shall reflect the job as actually constructed,
with all changes incorporated therein.
27. Assignment:
This agreement shall not be assignable by Subdivider without written consent
of City Engineer and City Attorney.
IN WITNESS WHEREOF, two (2) identical counterparts of this agreement, each of
which shall for all purposes be deemed an original thereof, have been duly executed by the
Subdivider herein named on the __ day of , 2013, the name and corporate
seal of each corporate party being hereto affixed and these presents duly signed by its
undersigned representative(s) pursuant to authority of its governing body.
Via Flor, LLC
(a California limited liability company)
By: CAMEO HOMES
a California Corporation
Its Managing Member
. By: ____________ _
David Gianulias, President
(Attach Notary Acknowledgement)
Attachment: Exhibit "A"
CITY OF SAN JUAN CAPISTRANO
By:. ___________ _
John Taylor, Mayor
ATTEST:
Maria Morris, CMC, City Clerk
APPROVED AS TO FORM:
Hans Van Ligten, City Attorney
13
SUBDIVISION IMPROVEMENT AGREEMENT-TRACT 16168
EXHIBIT "A"
WORKS OF IMPROVEMENT
Grading
Erosion and Silt Control
Street and Related appurtenances
Storm Drain
Sanitary Sewer
Water and related appurtenances
(11 0% of Improvement Cost)
Total above Improvements
Landscaping and Irrigation
14
Estimated Construction Cost
Or Bond Amount
Processed through Building
Division
Processed through Building
Division
$37,000
$ 18,424
$23,350
$ 29,414
$108,188
$ 31,335