15-0421_LV PACIFIC POINT LLC_Amd #1 & Rnstmt to Subdiv Imprvmt Agr RECORDING REQUESTED BY:
32400 Paseo Adelanto Recorded in Official Records, Orange County
Hugh Nguyen, Clerk-Recorder/
San Juan Capistrano, CA 92675 I1II11i IRIIIII III 1E1114I1I)IIII1111(III1III)1I i 111 NO FEE
AND WHEN RECORDED, MAIL TO; 0 7 9 0 1 9 9 2 *
2015000225899 8:10 am 05/01/15
Maria Morris, CMC, City Clerk 47 411 A17 23
City of San Juan Capistrano 0.00 0.00 0.00 0.00 66.00 0.00 0.00 0.00
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Exempt from Recording Fees:
Gov Code 27383 & 6103
City of San Juan Capistrano
This Space for Recorder's Use Only rj/ rx
II�.V
AMENDMENT#1 AND REINSTATEMENT TO SUBDIVISION IMPROVEMENT
AGREEMENT
(Subdivision Improvement Agreement Tentative Tract Map 15687)
This AMENDMENT #1 AND REINSTATEMENT TO SUBDIVISION •
IMPROVEMENT AGREEMENT for Tentative Tract Map 15687 ("Amendment") is dated
as of a , 2015, and entered into by and between LV Pacific Point LLC,
a Delaware Limited Liability Company ("Owner"), whose mailing address is 3121
Michelson Drive, Suite 200, Irvine, CA 92612 and the City of San Juan Capistrano, a
California municipal corporation ("City").
RECITALS:
WHEREAS, SJD PARTNERS, LTD., a California limited partnership ("Former
Subdivider") entered into a Subdivision Improvement Agreement Tentative Tract Map
15687 with the City dated December 6, 2005, and recorded in the Official Records of
Orange County, California ("Official Records") on December 29, 2005, as Instrument
No. 2005001036234 ("Original Agreement"), which provides for Former Subdivider to
construct certain Works of Improvement and perform other obligations relating to the
filing of a Final Map of Tract 15687; and,
WHEREAS, Owner is the successor-in-interest to Former Subdivider and the
owner of that certain parcel of land situated in the City of San Juan Capistrano, Orange
County, generally described as Vested Tentative Tract Maps 14196 and 15609; and,
WHEREAS, the Owner was assigned and assumed the responsibility to perform
that certain Work of Improvement thereon as hereinafter set forth and as identified
within the Original Agreement for Tentative Tract Map 15687; and,
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WHEREAS, Owner proposes to do and perform certain Works of Improvement
thereon as hereinafter set forth; and,
WHEREAS, Owner has requested, and City has agreed, to extend the time
period for Owner to complete the Works of Improvement required under the Original
Agreement, as set forth herein; and,
WHEREAS, Owner has requested, and City has agreed, to replace the existing
Performance and Material and Labor Bonds ("Bonds") with new Bonds for 100% of the
remaining Works of Improvement as defined within this Amendment in the amounts
shown on Exhibit"A" attached here to; and,
WHEREAS, By this Amendment, City and Owner propose to restate and amend
the Original Agreement in its entirety as set forth herein. All terms not otherwise defined
or amended herein shall have the meaning ascribed in the Original Agreement.
NOW THEREFORE, in consideration of the mutual covenants and agreements
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
AGREEMENT
1. General Requirements:
Owner shall comply with all the remaining requirements specified in the (a)
"AMENDMENT TO IMPROVEMENT AND REIMBURSEMENT
AGREEMENT (ASSESSOR'S PARCELS #666-301-01, 666-301-09, 675-
361-01, 675-361-03, 675-361-04, 675-361-05, 675-081-03, 675-081-04,
675-081-10, and 675-081-14)" dated November 15, 2005, and its
subsequent amendment and restatement dated 20_,
(Collectively referred to herein as the "Improvement and
Reimbursement Agreement"); (b) the "WATER FACILITIES
AGREEMENT — SUNCAL PROPERTIES", dated September 2, 2003, its
subsequent amendment dated March 16, 2004 (collectively referred to
herein as the "Water Facilities Agreement"); (c) the "AGREEMENT FOR
MODIFICATIONS TO WATER FACILITIES TO SERVE TRACT 14196",
dated May 4, 1999, and its subsequent amendment dated
, 20_, (Collectively referred to herein as the "Water Facilities to
Serve Tract 14196 Agreement") and (d) the applicable Conditions of
Approval set forth in City Council Resolution No. 92-6-16-04 (for Tentative
Tract Map 14196) and all applicable Conditions of Approval set forth in
City Council Resolution No. 03-09-16-06 (for Tentative Tract Map 15609)
and shall, at its 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"
hereto and as defined within the approved Improvement 'Plans for Tract
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15687, to the satisfaction of the City Engineer. Such Works of
Improvement shall include, but not be limited to, the undergrounding of the
overhead utilities, the placement of curb markers at all proposed street
catch basin inlet structures in accordance with the National Pollution
Discharge Elimination System (NPDES) requirement, and the construction
of all required off-site infra-structure and circulation improvements as set
forth in Paragraphs 1.2 and 1.4 below to the satisfaction of the City
Engineer.
1.1 Fair-Share Circulation Improvement Participation. Prior to the issuance of
the first (1st) building permit, other than model homes, the applicant shall
financially contribute for the project's fair share traffic generation for the
existing La Novia Avenue Improvement, from Valle Road to 2500 feet east
(15% fair share), which are included within the Improvement and
Reimbursement Agreement, as well as, any improvements not included in
the Capistrano Circulation Fee Program (CCFP), as identified in the
approved Environmental Impact Report (EIR) traffic impact analysis. This
financial participation shall be in addition to paying CCFP fees. The
applicant's financial participation shall include right-of-way acquisition,
design, and construction including, but not limited to, grading, streets,
sidewalks, landscaping, retaining walls, drainage structures, utility
relocation, and traffic signal improvements in accordance with the City's
Master Plan of Streets and Highways.
Additionally, prior to the issuance of the first (1st) building permit, other
than model homes, the applicant shall financially contribute for the
project's fair share traffic generation on the following improvements. The
final cost estimate shall be reviewed and determined by the City Engineer:
Ortega Highway& 1-5 Southbound Ramps:
Improvements: Construct an additional southbound right-turn
lane and re-stripe existing center lane to a
left/thru lane.
Fair share: 7.3%
Ortega Highway& 1-5 Northbound Ramps:
Improvements: Construct westbound free right turn lane.
Fair share: 0.8%
Furthermore, prior to the issuance of the one hundred and fifty-first (151st)
building permit, other than model homes, the applicant shall financially
contribute for the project's fair share traffic generation on the following
improvements which are included within the Improvement and
Reimbursement Agreement. The final cost estimate shall be reviewed and
determined by the City Engineer:
•
La Novia Widening Nalle Road Project to 2500 feet east
Improvements: Widening to secondary standards.
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Fair share: 15%
Signalization San Juan Creek at Valle Road Project
Improvements: Signals and intersection improvements.
Fair share: 38%
1.2 Off-Site Circulation Improvement Construction. Prior to the issuance of
the 1st Certificate of Occupancy, the applicant shall design and construct
the off-site improvement listed below to its ultimate standard
configurations in accordance with the City's Master Plan of Streets and
Highways, in accordance with the provisions within the Improvement and
Reimbursement Agreement, and to the satisfaction the City Engineer. All
easements, right-of-way acquisitions, dedications and permits needed
from any agency to accommodate said improvement shall be obtained by
the applicant, with City's assistance. Any deferral in the timing of this
condition, due to unforeseen delays, shall be subject to review and
approval by the City Engineer.
Camino Las Rambles & Via California:
Improvements: Install a traffic signal and construct a separate
southbound right-turn lane.
Fair Share: 94%
1.3 Construction of Avenida CalifomiaMsta Marina. Prior to issuance of the
one hundred fifty-first (151st) Residential Building Permit within Vesting
Tentative Tract Maps 14196 and/or 15609, the applicant shall complete, to
the satisfaction of the City Engineer, the construction of Avenida
California and Vista Marina Street, from the extension of,Via California, all
the way to its intersection with Valle Road. For any phases of
development prior to issuance of the 151st Residential Building Permit any
section of Avenida California Street and Vista Marina leading to a
developed subdivision phase, within Tentative Tract Map 15609 and/or
14196, shall be completed from Via California to that phase, prior to
issuance of the first building.permit of such phase. Any deviation shall be
subject to review and approval by the City Engineer.
1.4 Off-Site Circulation Improvement Construction. Prior to the completion of
Avenida Califomia/ ista Marina, or the issuance of the 151st Building
Permit, whichever comes first, the applicant shall design and construct the
off-site improvements listed below to their ultimate standard configurations
in accordance with the City's Master Plan of Streets and Highways, in
accordance with the provisions within the Improvement and
Reimbursement Agreement, and to the satisfaction the City Engineer. All
easements, right-of-way acquisitions, dedications and permits needed
from any agency to accommodate said improvements listed below shall be
obtained by the' applicant, with City's assistance. Any deferral in the
timing of this condition, due to unforeseen delays caused by the City or
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outside regulatory agencies, shall be subject to review and approval by
the City Engineer.
Valle Road& San Juan Creek Road:
Improvements: Construct a northbound left-turn lane.
Fair Share: 8.4%
Valle Road from San Juan Creek Road to La Novia Avenue:
• Improvements: Widen Valle Road to a two-lane divided
roadway including traffic signal and power pole
relocations, necessary grading, retaining walls,
curb gutter and sidewalks, and slope
landscaping improvements pursuant to the
approved improvement plans.
Fair Share: 38%
Valle Road from 1-5 to Forester Ranch Road:
Improvements: Widen Valle Road to commuter standards,
including necessary grading, retaining walls,
curb gutter and sidewalks, and slope
landscaping improvements pursuant to the
approved improvement plans.
Fair Share: 72%
La Novia Avenue& Valle Road/I-5 Northbound Ramps:
Improvements: Construct the La Novia Avenue approach,
Valle Road approaches, and the 1-5 NB Ramps
as part of a circular one-lane with shoulders
round-a-bout pursuant to the approved
improvement plans.
Fair Share: 37%
2. Security:
A. Owner shall, at all times, beginning with the execution of this
Amendment, guarantee Owner's performance of this Amendment 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 Amendment in regard to the Works of Improvement
be installed by Owner in the amount of 100% of the
estimated cost of construction of such Works of
Improvements (110% for the . remaining water related
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1 ,
improvements to be installed by Owner) as shown in Exhibit
"A" attached hereto; and,
(ii) A Labor and Materials Bond to secure payment to any
contractor, subcontractor, persons renting equipment or
furnishing labor or materials for the Works of Improvements
required to be constructed or installed pursuant to this
Amendment in the additional amount of 100% of the
estimated cost of construction of the Works of Improvement
to be installed by Owner(110% for the remaining water
related improvements to be installed by Owner) as shown in
Exhibit"A" attached hereto; 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 Article 2(A),
Owner 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,
Owner 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 estimated 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, Owner shall provide a
Landscape and Irrigation Warranty Bond warranting the
landscape and irrigation Works of Improvement for a period
of one (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 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").
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All Security Instruments required by this Amendment, 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 Amendment are hereby
incorporated in this Amendment by reference.
City shall release the Faithful Performance Bond upon Owner's written
request following acceptance by City of the Works of Improvement and
Owner's delivery to.City of the Warranty Bond for Works of Improvement.
City shall release the Labor and Materials Bond upon Owner'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) Owner has provided a
statutory bond, or otherwise as required by applicable law.
City Engineer shall release the Warranty Bond for Works of Improvement
upon Owner'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;
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(iii) Each of the Security Instruments shall have a minimum term
of one (1) year after the deadline for Owner's completing the
Works of Improvement, in accordance with Article 3 herein;
(iv) The Security Instruments shall reference Owner's obligations
under this Amendment, 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 no later than January
16, 2017. The time for completion may be extended by the City Engineer,
in writing, for good cause shown by the Owner. Owner 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 Article 19. In the event that Owner
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 Owner, or his surety as
herein provided. The City may require Owner, 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 Article 3 herein,
Owner'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 Owner,
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 Owner or its contractor detailing the grounds for
Owner'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), Owner 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.
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3.3 Reversion to Acreage: In addition to whatever other rights City may
have due to Owner's failure to timely perform its obligations
hereunder, Owner 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, Owner agrees that if none of the
Works of Improvement referenced herein have been made within
the specified "Time of Completion" referenced in Article 3 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 Owner 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 Amendment shall be effective on the date that the Amendment is
recorded by the County of Orange in the Official Records.
5. Utility Deposits - Statement:
Prior to the commencement of any work to be performed under this
Amendment within an area delineated on a Final Map, the Owner must file
a written statement with the City Clerk and City Engineer, signed by the
Owner, to the effect that Owner 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:
Owner shall, at Owner's expense, obtain all necessary permits and
licenses for the construction of required improvements, give all necessary
notices and pay ail 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 Owner subject to approval by the City
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Engineer. No work on said improvements shall be commenced until plans
and profiles therefore have been'submitted to, approved and permitted by
the City Engineer. All required public improvements constructed or
installed pursuant to this Amendment shall' become the sole exclusive
property of the City, without payment therefore, upon acceptance of said
improvements by the City Council.
8. Obligations of Owner:
Notwithstanding, the fact that Owner'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 Owner of satisfactorily performing said work or the related
obligations hereunder. The construction shall be done strictly in
accordance with the plans and specifications including supplements and
revisions prepared by Owner or its registered engineer, and as approved
by the City as being consistent with the City Code and Standards. Owner
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, Owner shall satisfy all the conditions of
approval set forth on the City approved tentative map for the Property.
Owner 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 Owner 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.
• Owner 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, Owner or its contractor shall immediately notify its
design engineer who will seek approval of the City Engineer for furnishing
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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.
10. Superintendence by Owner:
Owner 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
Owner. In the event the Owner 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:
Owner 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:
Owner 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 Owner 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 Owner or the
contractor of any obligations to fulfill this Amendment as herein provided;
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.
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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.
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 shall be repaired or replaced, by
the Owner, 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 Amendment by
Owner and Owner's contractor.
14. Changes in the Work:
The City Engineer, without invalidating this Amendment and without
notification to any of the sureties referenced in Article 2 of this
Amendment, 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 Amendment 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 Amendment 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 Owner or Owner's contractor in writing (by Correction Notice)
at the time a determination has been made to require changes in the
Works tof Improvement. No field changes performed or proposed by
Owner or its contractor shall be binding on City unless approved in writing
by the City Engineer.
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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 Owner or its
consultants or contractors, and City makes no representation or warranty,
expressed or implied, to Owner or to any other person regarding the
adequacy of the plans or specifications or related documents.
16. Liability for Performance, Iniury or Damage:
Neither the City nor any of its officers or agents shall be liable to Owner 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 Owner 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 Agreement,
Owner (if performing work itself)or Owner's contractors shall furnish to the
City satisfactory evidence of an insurance policy written upon a form and
by a company (which meets with the approval of the City) insuring the
City, its officers, elected and appointed officers, agents, and employees as
additional insureds 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 general liability insurance shall be not less than $2,000,000 per
occurrence and not less than $4,000,000 aggregate. Said policy shall be
in favor of Owner or its contractors, as primary insureds, and of the City,
its officers, elected and appointed officers, agents, and employees, as
additional insureds, 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 the City
shall have had at least ninety (90) days' notice in writing of such
cancellation.
The Owner hereby releases and agrees to defend (with legal counsel
selected by Owner and reasonably acceptable to the City), 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
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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 Owner, the Owner's agents, employees, and
subcontractors, while engaged in the performance of said work.
18. Liability of Owner:
The Owner 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 Owner 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 Owner'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. Owner's Expenses:
The Owner shall pay these additional expenses:
a. The Owner 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 Owner 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 Owner 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.
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Amendment#1 and Reinstatement of SIR
Tr 15687
•
Owner 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 Article 3. Said actual costs include:
inspection of Works of Improvement, engineer design review, plan
check and project development process. Owner 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:
It is hereby mutually covenanted and agreed by the parties hereto that
Owner'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
Owner, 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 (1) year after City Council acceptance of the
improvement work performed under this Amendment, any of the
improvements or work done under this Amendment fails to fulfill any of the
requirements of this Amendment, or the specifications referred to herein,
Owner 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 Owner 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
Owner can be notified, City may, at its option, make the necessary repairs
or replacements or perform the necessary work and Owner 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, Owner 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
-I5-
Amendment#1 and Reinstatement of SIA
Tr 15687
landscaping in a vigorous and thriving condition for a period of twelve (12)
months after completion and written acceptance thereof by the Director of
Public Works and Utilities Department and by the HOA. Only the
warranty security for the landscape improvement shall be posted with the
HOA. All other security instruments shall be submitted to the City in
accordance with Article 2. 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 Amendment
provides a specific remedy to City for a default by Owner
hereunder, such 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 Owner's default hereunder, in the event
Owner shall fail to timely perform any work required to be
performed under this Amendment and such failure shall continue
for a period of thirty (30) days after receipt of written notice of
default from City, or thereafter Owner 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
Owner 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 Owner's performance of its obligations under this Amendment 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.
•
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Amendment#1 and Reinstatement of SIA
Tr 15687
•
25. Notice of Completion:
Upon approval of the Works of Improvement by the City Engineer and
acceptance by the City Council, the Owner shall file in the Official Records
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 Owner 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 drawings shall be certified and shall reflect the job as actually
constructed, with all changes incorporated therein.
27. Assignment:
This Amendment shall not be assignable by Owner without written
consent of City.
28. Grading Surety Agreement Superseded:
City acknowledges and agrees that the obligations set forth in this
Amendment supersede that certain Surety Agreement dated September
18, 1997, by and between City and Former Subdivider.
•
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Amendment#1 and Retnstatement of SIA
Tr 15887
IN WITNESS WHEREOF, tis Amendment has peen duly executed by the
Owner herein named on the day of r\ , 2019, 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.
OWNER CITY OF SAN JUAN CAPISTRANO
LV Pacific Point LLC,
A Delaware Limited Liability Company
6r)1111Ak PLUAA
By: o �=�, By:
Derek Reeve, Mayor
Jonas Stiklorius
Name: Authorized Signatory
Its: /
tT
F i
1
i
\
.ri.\ orris,.City Cp
APPROVED AS TO FORM:
Hans Va ten, City Attorney
(Attach Notary Acknowledgement)
Attachment: Exhibit A
-18-
Amendment#1 and Reinstatement of SIA
Tr 15687
•
PUBLIC AGENCY FORM OF ACKNOWLEDGEMENT
A notary public or other officer completing this certificate
verifies only the identity of the individual who signed the
document, to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California )
County of Orange ) ss.
City of San Juan Capistrano )
(Gov't Code 40814 & Civil Code 1181)
On April 23, 2015, before me, Maria Morris, City Clerk, personally appeared
Derek Reeve, Mayor and Hans Van Litten, City Attorney, who proved to me on the basis of
satisfactory evidence to the be person(s) whose name(s) is/are subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies),
and that by his/her/there signature on the instrument the person(s),or the entity upon behalf of which
the person(s) acted, executed the instrument.
1 certif}'under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct. f
(SEAL) .
WITNES.. r . id and official seal.
Maria M• s,\'i' C rk '
OPTIONAL
Capacity Claimed by Signers Description of Attached Document
Title or Type of Document
Mayor
City Attorney Amendment #I and Reinstatement to Subdivision
Improvement Agreement(Tentative"Tract Map 15687)
Title t.,v Pacific Point LLC
Signer is Representing
City of San Juan Capistrano
OWNER
ACKNOWLEDGMENT
•
STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK )
•
On the jam. day of,gpfl,L in the year 2015 before me, the undersigned, a Notary
Public in and for said State, personally appeared a2nti,3____*.z12(!q4personally
known to me or proved to me on the basis of satisfactory evidence to be the individual
whose name is subscribed to the within instrument and acknowledged to me that he
executed the same in his capacity, and that by his signature on the instrument, the
individual, or the person upon behalf of which the individual acted, executed the
instrument.
(Notarial
Seal) 4,L,cJ 4 qy
Notary Public
LISA A.PHELAN
Notary Public.State of New York
Qualified in New York County
Reg No 01PH6292618
Commission Expires November 4,2017
-19-
Amendment#1 and Reinstatement of SIA
Tr 15687
• •
• Exhibit A
WORKS OF IMPROVEMENT
CERTIFICATION OF PARTIAL COMPLETION OF SUBDIVISION IMPROVEMENTS
Final Tract Map 15687
I hereby certify that the following improvements in Pacifica San Juan Final Tract Map
("FTM") 15687 have been completed, to wit:
Schedule of Improvements Total Amount Percent Complete Remaining Amount
or Bond Amount
•
Street Improvements $1,180,000 100% $0
Water Improvements
-Avenida California $303,509 • 100% $0
-Avenida California $644,506 100% $0
Sewer.Improvements $280,000 100% $0
Drainage Improvements $529,000 100% $0
Landscape and Irrigation $157,551 90% $15,755
Monumentation • $10,500 0% $10,500
Grading $740,554 9% $662,146
Off-site Public Improvements (1) (1)
Total Works of Improvement $3,845,619 83% $688,401
(1) With Improvement and Reimbursement Agreement
Street Improvements
The Performance Bond is for the amount of
Zero Dollars ($ 0 ). (100 % of Column 4)
The Laborers and Materialmens Bond is for the amount of
Zero Dollars ($ 0 ). (100 % of Column 4)
Water Improvements
The Performance Bond is for the amount of Zero Dollars
($ 0 ). (100 % of Column 4)
The Laborers and Materialmens Bond is for the amount of Zero -
Dollars ($ 0 ). (100 % of Column 4)
Subdivision improvements Agreement
Pacifica San Juan,FTM 15687 1 of 3
Exhibit A
Sewer Improvements
The Performance Bond is for the amount of Zero
Dollars ($ 0 ). (100 % of Column 4)
The Laborers and Materialmens Bond is for the amount of
Zero Dollars ($ 0 ). (100 % of Column 4)
Drainage Improvements
The Performance Bond is for the amount of Zero Dollars
0 ). (100 % of Column 4)
The Laborers and Materialmens Bond is for the amount of Zero Dollars
($ 0 ), (100 % of Column 4)
Landscape and Irrigation
The Performance Bond is for the amount of Fifteen Thousand Seven Hundred Fifty Five Dollars
($ 15,755 ). (100 % of Column 4) (100 % of Column 4)
The Laborers and Materialmens Bond is for the amount of Fifteen Thousand Seven Hundred Fifty
Five Dollars ($ • 15,755 ). (100 % of Column 4)
Monumentation
The Performance Bond is for the amount of Ten Thousand Five Hundred Dollars
($ 10,500 ). (100 % of Column 4)
The Laborers and Materialmens Bond is for the amount of Ten Thousand Five Hundred Dollars
($ 10,500 ). (100 % of Column 4)
Grading
The Performance Bond is for the amount of Six Hundred Sixty Two Thousand One Hundred Forty
Six Dollars ($ 662,146 ). (100 % of Column 4)
The Laborers and Materialmens Bond is for the amount of Six Hundred Sixty Two Thousand One
Hundred Forty Six Dollars ($ 662,146 ). (100 % of Column 4)
Subdivision Improvements Agreement
Pacifica San Juan, FTM 15687 2 of 3
Exhibit A
•
Off-site Public Improvements .
The Performance Bond is for the amount of Zero Dollars
($. 0 ). (100 % of Column 4)
The Laborers and Materialmens Bond is for the amount of Zero Dollars
($ 0 ). (100 % of Column 4)
SUBMITTED BY ENGINEER OF RECORD
I estimate the total cost of completing the remainder of the in-Tract FTM 15687 improvements,
agreed to be performed by the Owne, .. ivider to be
Six Hundred Eighty Eight Thous- • 0440 :Dne Dollars ($688,401)
"S>' <1"\
c1
r y w a No.36796 G!ri
DATED: `� ., . Exp,3/31 !
c ?e-
Doug
Doug Staey(RCE N . 38796)
Op
1 President e
5ssociates Irvine, Inc.
Hug 's
ACCEPTED BY CITY Irvine, CA 92618
i
DATED:
= K••yman, P.E.
A.•ista t Public Works Director
•
Subdivision improvements Agreement
Pacifica San Juan,FTM 15687 3 of 3
Exhibit A