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06-1017_SJD PARTNERS, LTD_D5_Agenda Report
X00.33 �",., AGENDA REPORT 10/17/2006 D5 TO: Dave Adams, City Manager FROM: Nasser Abbaszadeh, Director of Engineering & Building SUBJECT: Consideration of Approval of Final Maps and Subdivision Improvement Agreements for Tracts 16747, 16751, 16752 and 15609 Pacifica San Juan (SJD PARTNERS, LTD.). RECOMMENDATION By motion; 1. Approve the Final Tract Maps No. 16747, 16751, 16752 and 15609 as they conform to the requirements set forth in the Subdivision Map Act and the conditions of approval for Vesting Tentative Tract Maps 14196 and 15609; and, 2. Authorize the City Engineer and the City Clerk to execute the Final Maps 3. Authorize the Mayor and City Clerk to execute the corresponding Subdivision Improvement Agreements and accept the corresponding securities. 4. Direct the City Clerk to forward the Maps and corresponding Subdivision Improvement Agreements to the County Recorder. SITUATION A. Summary and Recommendation SJD PARTNERS, LTD.,(SJD) Developer / Subdivider of Tentative Tract Maps No. 14196 and 15609, has submitted the last four Final Maps within the boundaries of said tentative maps for City Council consideration and approval. Final Tract Map, No. 16747, includes the majority of proposed Avenida California, a 6.4 -acre parcel for a proposed residential condominium site, a one - acre parcel for a proposed recreational center and a 1.3 -acre parcel for a proposed RV parking lot. The other three Final Tract Maps, Nos. 16751, 16752 and 15609, are proposed to provide 137 residential single family homes within gated communities, on approximately 75.68 acres of land subdivisions. The four maps, as well as related grading and improvement plans, have been reviewed by the Engineering Division and were found to be in substantial conformance with the Tentative Tract Maps and the Subdivision Map Act. All appropriate bonds and fees have been submitted and paid respectively to the Agenda Report Page 2 October 17, 2006 City. The developer has signed the four Subdivision Improvement Agreements (Attachments 1, 2; 3 and 4). All applicable conditions of approval required by Resolutions 92-6-16-4 and 03-09-16-06 for Tentative Tract Maps 14196 and 15609 respectively, which are filed with the City Clerk, have been met. B. Background On June 16, 1992, and September 16, 2003, the City Council adopted Resolutions No. 92-6-16-4 and 03-09-16-06 conditionally approving SJD's Vesting Tentative Tract Maps 14196 and 15609 respectively, which allowed for the construction of a maximum of 416 residential dwelling units. SJD wishes to divide these two tentative tracts (excluding the north R & D site) into nine final tract maps. Five final tract maps have been already approved and recorded. The last four final maps, recommended for approval on tonight's agenda are as follows: Tract 16747 A residential condominium site on a 4 -acre parcel, A recreational center on a one -acre parcel, A Recreational Vehicle parking lot on a 1.3 -acre parcel; and, The majority of proposed Avenida California Tract 16751 22 residential lots on 9.788 acres Tract 16752 82 residential lots on 43.537 acres Tract 15609 23 residential lots on 22.358 acres These maps, as well as all related improvement plans and studies, have been reviewed by the City Engineer. The City Attorney and Planning Director have reviewed the covenants, conditions and restrictions (CC&R's). The final items listed below have been reviewed and found to be in compliance with the requirements of the final tract maps: 1. Applicable Subdivision fees 2. Subdivision Improvement Agreements executed in duplicate 3. Faithful Performance and Labor and Material bonds for the following improvements, which may be reduced or exonerated by the City Engineer upon a successful completion: a. Street Improvement b. Storm Drain Improvement c. Sewer Improvements d. Water Improvement e. Landscape and Irrigation Improvements f. Survey Monumentation (performance bond) Agenda Report October 17, 2006 Paae 3 COMMISSION/BOARD REVIEW AND RECOMMENDATIONS The Tentative Maps have been previously reviewed by the Environmental Review Board, Transportation Commission, and Planning Commission and approved by City Council. FINANCIAL CONSIDERATIONS All applicable fees have been paid and the required sureties posted with the City. PUBLIC NOTIFICATION SJD PARTNERS, LTD. * Hunsaker and Associates * Agenda report included RECOMMENDATION By motion; 1. Approve the Final Tract Maps No. 16747, 16751, 16752 and 15609 as they conform to the requirements set forth in the Subdivision Map Act and the conditions of approval for Vesting Tentative Tract Maps 14196 and 15609; and, 2. Authorize the City Engineer and the City Clerk to execute the Final Maps. 3. Authorize the Mayor and City Clerk to execute the corresponding Subdivision Improvement Agreements and accept the corresponding securities. 4. Direct the City Clerk to forward the Maps and corresponding Subdivision Improvement Agreements to the County Recorder. Respectfully submitted, Preparefi by, Nasser Abbaszadeh, P.E.a oucair Director of Engineering & Building S nior Engineer Attachments: 1. Subdivision Improvement Agreement for final tract map 16747 2. Subdivision Improvement Agreement for final tract map 16751 3. Subdivision Improvement Agreement for final tract map 16752 4. Subdivision Improvement Agreement for final tract map 15609 5. Location Map ss RECORDING REQUESTED BY: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 AND WHEN RECORDED, MAIL TO Margaret R. Monahan, City Clerk City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Exempt from Recording Fees: Gov Code 27383 & 6103 City of San Juan Capistrano Title of Document: I This Space for Recorder's Use Only SUBDIVISION IMPROVEMENT AGREEMENT FINAL TRACT MAP 16747 ATTACHMENT Recording Requested by and When Recorded Mail To: City of San Juan Capistrano Attention: City Clerk 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Margaret R. Monahan, City Clerk City of San Juan Capistrano SUBDIVISION IMPROVEMENT AGREEMENT SUBJECT: FINAL TRACT MAP 16747 THIS AGREEMENT is made this _day of 2006, between the CITY OF SAN JUAN CAPISTRANO, a municipal corporation, State of California, hereinafter referred to as "City" and SJD PARTNERS, LTD., a California limited partnership, whose mailing address is 1250 Corona Pointe Court, Suite 210, Corona CA 92879, hereinafter referred to as "Subdivider": WHEREAS, the tentative map application was conditionally approved by Resolution No 92-6-16-4; and, WHEREAS, Subdivider is 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 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; and WHEREAS, a Final Map of said subdivision prepared in accordance with the City's Subdivision Ordinance, has been filed by Subdivider with City for approval by the City Council. NOW THEREFORE, in consideration of the approval and acceptance by the City Council of City of said Final Map and the acceptance of easements therein offered for - 1 - ATTACHMENT dedication for street and other public purposes and the covenants herein contained, the parties hereto mutually covenant and agree as follows: General Requirements: Subdivider shall comply with all the requirements specified in the "AMENDMENTTO IMPROVEMENTAND 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, the WATER FACILITIES AGREEMENT- - SUNCAL PROPERTIES, dated September 2, 2003 and its subsequent amendment dated March 16, 2004, the conditions of approval set fort in City Council Resolution No. 92-6-16-4 (for Tentative Tract Map 14196) and all applicable conditions of approval set fort in City Council Resolution No. 03- 09-16-06 (for Tentative Tract Map 15609) 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 work 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 to the satisfaction of the City Engineer. 1.1 Fair -Share Circulation Improvement Participation. Prior to the issuance of the first (1 5) 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, 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 (1 st) 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 -tum lane and re -stripe existing center lane to a left/thru lane. Fair share: 7.3% -2- Ortega Highway & 1-5 Northbound Ramps: Improvements: Construct westbound free right turn lane Fair share: 0.8% 1.2 Off -Site Circulation Improvement Construction. Prior to the issuance of the 15 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 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 Ramblas & Via California: Improvements: Install a traffic signal and construct a separate southbound right -turn lane. 1.3 Construction of Avenida California. Prior to issuance of the 151 st 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 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 1515 Residential Building Permit any section of Avenida California Street 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 California, or the issuance of the 1515 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 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 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 -tum lane -3- La Novia Avenue & Valle Road/I-5 Northbound Ramps: Improvements: Realign La Novia Avenue and the 1-5 NB Ramps and install a traffic signal. Valle Road from San Juan Creek Road to La Novia Avenue: Improvements: Widen to a two-lane divided roadway. 1.5 Jerwel Parcel/Storm Drain & Avenida California (c)_Valle Rd. Improvements. Final Map 16747 presently depicts a public easement for a storm drain line and a section of a dedicated public Road (Avenida California @ Valle Road) to be located on the AP # 666-301-11 ("the Property"). However, City holds only an easement to the Property for road widening purposes. Subdivider therefore must acquire an additional real property right (Le, fee interest) to authorize both the construction and maintenance of these public facilities on this Property. City agrees to cooperate with Subdivider by lending its power of eminent domain, if necessary, to acquire Fee title to the Property. Subdivider agrees to pay for all costs associated with the eminent domain process, if necessary, as follows: 1) Subdivider shall pay for costs incurred in retaining an appraiser to appraise the value of the subject real property interest; 2) after City has adopted a resolution of necessity, the Subdivider shall then assume the obligation of retaining legal counsel to act as special counsel for the City in filing and completing an eminent domain action to acquire and pay for a fee title interest to the subject property. Subdivider shall be solely responsible for paying all legal fees and costs, and the award of the court for the total value of the property. Subdivider agrees and understands that City will not permit Subdivider's construction of the storm drain line or construction of the segment of Avendia California until Subdivider has either: i) acquired fee from the Property Owner on a voluntary basis, or, ii) acquired at least an eminent domain order of immediate possession ("OIP") based upon a complaint in eminent domain requesting acquisition of fee title. 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 100% of the estimated cost of construction of the improvements (110% for water related improvements); and -4- (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 (110% for water related 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 h addition to the security instruments referenced in Paragraph 2(A) above, Subdivider shall provide to City the following Security Instruments: (i) Prior to the Citys 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 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, 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 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. -5- City shall release the Faithful Performance Bond upon Subdivider's written request following acceptance by City of the Works of Improvement and Subdividers delivery to City of the Warranty Bond for Works of Improvement. City shall release the Labor and Materials Bond upon Subdividers 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 Subdividers 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 & Poors; (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; (iii) Each of the Security Instruments shall have a minimum term of one (1) year after the deadline for Subdividers completing the Works of Improvement, in accordance with paragraph 3 herein; (iv) The Security Instruments shall reference Subdividers 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' WE 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 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. 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 rightto revert the Property to acreage subject to the limitations and requirements set forth in California Government Code Sections 66499.11-66499.20- 314. 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 -7- 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 Citys authority to revert the Property to acreage. 4. Effective Date of Agreement: This Agreement shall not become effective unless and until the subdivision map 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 r 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 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. 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; 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. 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 -10- 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. 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 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 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. 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. SEE 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: 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 -12- 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. d. 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: 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. -13- 21 22. 23. 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. 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. 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 bythe 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 (12) months after completion and written acceptance thereof by the Director of Engineering and Building and by the Homeowner's Association. 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. 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 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. MER 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 attorneys fees and costs shall include fees and costs on any appeal, and in addition a party entitled to attorneys 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 drawings shall be certified and shall reflect the job as actually constructed, with all changes incorporated therein. 27. Assiqnment: This agreement shall not be assignable by Subdivider without written consent of City. -15- 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 15 th day of 2006, the name and corporate seal of each corporate party being hereto affix d and these presents duly signed by its undersigned representative(s) pursuant to authority of its governing body. SJD PARTNERS, LTD., A California Limited Partnership By: Name: Bruce V. CooK Its: Gcneral Counsel (Attach Notary Acknowledgement) Attachment: Exhibit A -16- CITY OF SAN JUAN CAPISTRANO David M. Swerdlin, Mayor ATTEST: Margaret R. Monahan, City Clerk APPROVED AS TO FORM: Joh w, City Attorney CALIFORNIA ALL - PV"OSE ACKNOWLEDGMENT State of California County of Orange On September 1:1, 2006 before me, personally appeared ® Personally known to me - or - ❑ ------------- •Iitit'�• , i Susan E. MoraleslNotary Public NAME, TITLE OF OFFICER Bruce V. Cook NAME OF SIGNER(S) Proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. �!T nam '-r 0 , men / n rYA (SIGNATURE OFNOTAR)) OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER ❑ INDIVIDUAL/OWNER ❑ CORPORATE OFFICER TITLE(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ❑ MANAGING MEMBER ® GENERAL COUNSEL SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTITY(IES) SJD Partners, Ltd DESCRIPTION OF ATTACHED DOCUMENT Subdivision Agreement - Tract #16747 TITLE OR TYPE OF DOCUMENT 16 NUMBER OF PAGES 09/15/06 DATE OF DOCUMENT SUBDIVISION IMPROVEMENT AGREEMENT - TRACT 16747 EXHIBIT 'W' WORKS OF IMPROVEMENT Tvpe of Improvements: Grading Erosion and Silt Control Off-site Circulation Obligations Street and Related appurtenances Storm Drain Sanitary Sewer Landscaping and Irrigation Street Monuments Water and related appurtenances Exhibit A Estimated Construction Cost Or Bond Amount Processed through BLDG. Division Processed through BLDG. Division Bonds were processed separately $ 1,639,486 $ 1,537,973 $434,156 $ 923,526 $ 18,500 $763,671 RECORDING REQUESTED BY: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 AND WHEN RECORDED, MAIL TO: Margaret R. Monahan, City Clerk City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Exempt from Recording Fees: Gov Code 27383 & 6103 City of San Juan Capistrano Title of Document: This Space for Recorder's Use Only SUBDIVISION IMPROVEMENT AGREEMENT FINAL TRACT MAP 16751 Recording Requested by and When Recorded Mail To: City of San Juan Capistrano Attention: City Clerk 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Margaret R. Monahan, City Clerk City of San Juan Capistrano SUBDIVISION IMPROVEMENT AGREEMENT SUBJECT: FINAL TRACT MAP 16751 THIS AGREEMENT is made this _day of 2006, between the CITY OF SAN JUAN CAPISTRANO, a municipal corporation, State of California, hereinafter referred to as "City" and SJD PARTNERS, LTD., a California limited partnership, whose mailing address is 1250 Corona Pointe Court, Suite 210, Corona CA 92879, hereinafter referred to as "Subdivider": WHEREAS, the tentative map application was conditionally approved by Resolution No 92-6-16-4; and, WHEREAS, Subdivider is 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 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; and WHEREAS, a Final Map of said subdivision prepared in accordance with the City's Subdivision Ordinance, has been filed by Subdivider with City for approval by the City Council. NOW THEREFORE, in consideration of the approval and acceptance by the City Council of City of said Final Map and the acceptance of easements therein offered for - 1 - ATTACHMENT dedication for street and other public purposes and the covenants herein contained, the parties hereto mutually covenant and agree as follows: General Requirements: Subdivider shall comply with all the requirements specified in the "AMENDMENTTO IMPROVEMENTAND REIMBURSEMENT AGREEMENT (ASSESSOR'S PARCELS #666-301-01, 666 -301-09,675-361-01,675-361- 03, 66-301-09,675-361-01,675-361- 03, 675-361-04, 675-361-05,675-081-03, 675-081-04, 675-081-10, and 675- 081-14)" dated November 15, 2005, the WATER FACILITIES AGREEMENT — SUNCAL PROPERTIES, dated September 2, 2003 and its subsequent amendment dated March 16, 2004, the conditions of approval set fort in City Council Resolution No. 92-6-16-4 (for Tentative Tract Map 14196] and all applicable conditions of approval set fort in City Council Resolution No. 03- 09-16-06 (for Tentative Tract Map 15609) 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 work 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 to the satisfaction of the City Engineer. 1.1 Fair -Share Circulation Improvement Participation. Prior to the issuance of the first (15) 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, 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 (15t) 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 Hiahwav & 1-5 Southbound Ramvs Improvements: Construct an additional southbound right -turn lane and re -stripe existing center lane to a left/thru lane. Fair share: 7.3% -2- Ortega Highway & 1-5 Northbound Ramps: Improvements: Construct westbound free right turn lane Fair share: 0.6% 1.2 Off -Site Circulation Improvement Construction. Prior to the issuance of the 15 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 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 Ramblas & Via Califomia: Improvements: Install a traffic signal and construct a separate southbound right -turn lane. 1.3 Construction of Avenida California. Prior to issuance of the 151 st 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 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 151 st Residential Building Permit any section of Avenida California Street 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 California, or the issuance of the 151 s 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 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 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 -3- La Novia Avenue & Valle Road11-5 Northbound Ramps: Improvements: Realign La Novia Avenue and the 1-5 NB Ramps and install a traffic signal. Valle Road from San Juan Creek Road to La Novia Avenue: Improvements: Widen to a two-lane divided roadway. 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 100% of the estimated cost of construction of the improvements (110% for water related 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 (110% for water related 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 h 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 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, Subdivider shall provide a ME 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 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 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 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 meetthe 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 56Z 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; (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 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 -6- 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. 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 Citys authority to revert the Property to acreage. 4. Effective Date of Agreement: This Agreement shall not become effective unless and until the subdivision map 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- 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 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 Engineerfor 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. 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; 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. 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. 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 Subdividers contractor 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 shall be binding on City unless approved in writing by the City Engineer. -10- 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. 16. Liability for Performance, Iniury 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 - 11 - 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: 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. -12- d. 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, engineerdesign 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: 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 (12) -13- months after completion and written acceptance thereof by the Director of Engineering and Building and by the Homeowner's Association. 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 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. -14- 25 M 27 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. Filinq 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 Engineerfor 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. Assignment: This agreement shall not be assignable by Subdivider without written consent of City. -15- 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_j!a_th day of ,2006, the name and corporate seal of each corporate party being hereto affix6d and these presents duly signed by its undersigned representative(s) pursuant to authority of its governing body. SJD PARTNERS, LTD., A California Limited Partnership By: Its: Gve )e;ral Counsel (Attach Notary Acknowledgement) Attachment: Exhibit A -16- CITY OF SAN JUAN CAPISTRANO By: David M. Swerdlin, Mayor ATTEST: Margaret R. Monahan, City Clerk APPROVED AS TO FORM: Jon , City Attorney CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT State of California County of Orange On September 15, 2006 before me, Susan E. Morales/Notary Public NAME, TITLE OF OFFICER personally appeared Bruce V. Cook NAME OF SIGNER(S) ® Personally known to me - or - ❑ Proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER ❑ INDIVIDUAL/OWNER ❑ CORPORATE OFFICER TITLE(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ❑ MANAGING MEMBER ® GENERAL COUNSEL ❑ OTHER: SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTrrY(IES) SJD Partners. Ltd. DESCRIPTION OF ATTACHED DOCUMENT Subdivision Agreement - Tr. #16751 TITLE OR TYPE OF DOCUMENT 16 NUMBER OF PAGES 09/15/06 DATE OF DOCUMENT SUBDIVISION IMPROVEMENT AGREEMENT - TRACT 16751 EXHIBIT "A' WORKS OF IMPROVEMENT Type of Improvements: Grading Erosion and Slit Control Off-site Circulation Obligations Street and Related appurtenances Storm Drain Sanitary Sewer Landscaping and Irrigation Street Monuments Water and related appurtenances U Exhibit A Estimated Construction Cost Or Bond Amount Processed through BLDG. Division Processed through BLDG. Division Bonds were processed separately $ 219,070 $ 78,031 $ 83,952 $ 141,578 ' $ 14,000 $53,215 RECORDING REQUESTED BY: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 AND WHEN RECORDED, MAIL TO Margaret R. Monahan, City Clerk City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Exempt from Recording Fees: Gov Code 27383 & 6103 City of San Juan Capistrano Title of Document: This Space for Recorder's Use Only SUBDIVISION IMPROVEMENT AGREEMENT FINAL TRACT MAP 16752 Recording Requested by and When Recorded Mail To: City of San Juan Capistrano Attention: City Clerk 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Margaret R. Monahan, City Clerk City of San Juan Capistrano SUBDIVISION IMPROVEMENT AGREEMENT SUBJECT: FINAL TRACT MAP 16752 THIS AGREEMENT is made this _day of 2006, between the CITY OF SAN JUAN CAPISTRANO, a municipal corporation, State of California, hereinafter referred to as "City" and SJD PARTNERS, LTD., a California limited partnership, whose mailing address is 1250 Corona Pointe Court, Suite 210, Corona CA 92879, hereinafter referred to as "Subdivider": WHEREAS, the tentative map application was conditionally approved by Resolution No 92-6-16-4; and, WHEREAS, Subdivider is 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 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; and WHEREAS, a Final Map of said subdivision prepared in accordance with the City's Subdivision Ordinance, has been filed by Subdivider with City for approval by the City Council. NOW THEREFORE, in consideration of the approval and acceptance by the City Council of City of said Final Map and the acceptance of easements therein offered for -1- ATTACHMENT dedication for street and other public purposes and the covenants herein contained, the parties hereto mutually covenant and agree as follows: General Requirements: Subdivider shall comply with all the requirements specified in the "AMENDMENTTO IMPROVEMENTAND 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, the WATER FACILITIES AGREEMENT — SUNCAL PROPERTIES, dated September 2, 2003 and its subsequent amendment dated March 16, 2004, the conditions of approval set fort in City Council Resolution No. 92-6-16-4 (for Tentative Tract Map 14196) and all applicable conditions of approval set fort in City Council Resolution No. 03- 09-16-06 (for Tentative Tract Map 15609) and shall, at his own cost and expense, provide ail 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 work 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 to the satisfaction of the City Engineer. 1.1 Fair -Share Circulation Improvement Participation. Prior to the issuance of the first (1s) 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, 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: Orteaa Hiahwav & 1-5 Southbound Ramos: Improvements: Construct an additional southbound right -turn lane and re -stripe existing center lane to a left/thru lane. Fair share: 7.3% -2- Ortega Highway & 1-5 Northbound Ramps: Improvements: Construct westbound free right turn lane Fair share: 0.8% 1.2 Off -Site Circulation Improvement Construction. Prior to the issuance of the 15 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 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 Ramblas & Via California: Improvements: Install a traffic signal and construct a separate southbound right -turn lane. 1.3 Construction of Avenida California. Prior to issuance of the 151 st 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 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 1515 Residential Building Permit any section of Avenida California Street 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 California, or the issuance of the 1515 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 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 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 -3- La Novia Avenue & Valle Road/1-5 Northbound Ramps: Improvements: Realign La Novia Avenue and the 1-5 NB Ramps and install a traffic signal. Valle Road from San Juan Creek Road to La Novia Avenue: Improvements: Widen to a two-lane divided roadway. 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 100% of the estimated cost of construction of the improvements (110% for water related 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 (110% for water related 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 h 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 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, 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 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 shall release the Faithful Performance Bond upon Subdividers written request following acceptance by City of the Works of Improvement and Subdividers delivery to City of the Warranty Bond for Works of Improvement. City shall release the Labor and Materials Bond upon Subdividers 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 Subdividers 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 -5- 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 Moodys 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; (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 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 -6- 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. 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 the subdivision map 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- 7. Definitions and Ownership of Improvements: The term "improvements" means: grading, paving, curbs and gutters, pathways, storm drains, sanitarysewers, 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 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. 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. 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; unsuitable materials or work may be rejected notwithstanding that such materials or work may have been previously overlooked or accepted. INE 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. 13. Authority of the City Enqineer: 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. 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 Subdividers contractor 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 shall be binding on City unless approved in writing by the City Engineer. -10- 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. 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 - 11 - 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, howsoeverthe same may be caused and whensoeverthe 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: 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. -12- d. 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: 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 (12) -13- months after completion and written acceptance thereof by the Director of j-ngineering and Building and by the Homeowner's Association. 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 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. -14- 25. 26. 27 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. 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 Engineerfor 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. Assignment: This agreement shall not be assignable by Subdivider without written consent of City. -15- 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 bythe Subdivider herein named on the_15_th day of g, 2006, the name and corporate seal of each corporate party being hereto affix and these presents duly signed by its undersigned representative(s) pursuant to authority of its governing body. SJD PARTNERS, LTD., A California Limited Partnership By: Name: Br(ACe' V. COQK MWAKA2T2W-% W (Attach Notary Acknowledgement) Attachment: Exhibit A -16- CITY OF SAN JUAN CAPISTRANO David M. Swerdlin, Mayor ATTEST: Margaret R. Monahan, City Clerk APPROVED AS TO FORM: ql�-- - Jo aw, City Attorney CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT State of California County of Orange On September 15, 2006 before me, Susan E. MoraleslNotary Public NAME, TrFLE OF OFFICER personally appeared ® Personally known to me - or - ❑ Bruce Y. Cook NAME OF SIGNER(S) Proved to me on the basis of satisfactory 'evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. -j&Z4am .-X. Ma7� (SIGNATURE OF NOTARY) OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER ❑ INDIVIDUAL/OWNER ❑ CORPORATE OFFICER TITLE(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ❑ MANAGING MEMBER ® GENERAL COUNSEL ❑ OTHER: SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTITY(IES) SJD Partners, Ltd DESCRIPTION OF ATTACHED DOCUMENT Subdivision Agreement -Tract #16752 TITLE OR TYPE OF DOCUMENT 16 NUMBER OF PAGES 09/15/06 DATE OF DOCUMENT SUBDIVISION IMPROVEMENT AGREEMENT -TRACT 16752 EXHIBIT "A" WORKS OF IMPROVEMENT Type of Improvements: Estimated Construction Cost Or Bond Amount Grading Processed through BLDG. Division Erosion and Silt Control Processed through BLDG. Division Off-site Circulation Obligations Bonds were processed separately Street and Related appurtenances $ 710,192 Storm Drain $ 476,943 Sanitary Sewer $ 364,676 Landscaping and Irrigation 1,898,601 Street Monuments $ 38,500 Water and related appurtenances $262,073 Exhibit A RECORDING REQUESTED BY: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 AND WHEN RECORDED, MAIL TO: Margaret R. Monahan, City Clerk City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Exempt from Recording Fees: Gov Code 27383 & 6103 City of San Juan Capistrano Title of Document: This Space for Recorder's Use Only SUBDIVISION IMPROVEMENT AGREEMENT FINAL TRACT MAP 15609 Recording Requested by and When Recorded Mail To: City of San Juan Capistrano Attention: City Clerk 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Margaret R. Monahan, City Clerk City of San Juan Capistrano SUBDIVISION IMPROVEMENT AGREEMENT SUBJECT: FINAL TRACT MAP 15609 THIS AGREEMENT is made this _day of 2006, between the CITY OF SAN JUAN CAPISTRANO, a municipal corporation, State of California, hereinafter referred to as "City" and SJD PARTNERS, LTD., a California limited partnership, whose mailing address is 1250 Corona Pointe Court, Suite 210, Corona CA 92879, hereinafter referred to as "Subdivider": WHEREAS, the tentative map application was conditionally approved by Resolution No 92-6-16-4; and, WHEREAS, Subdivider is 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 S u bd ivider '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; and WHEREAS, a Final Map of said subdivision prepared in accordance with the City's Subdivision Ordinance, has been filed by Subdivider with City for approval by the City Council. NOW THEREFORE, in consideration of the approval and acceptance by the City Council of City of said Final Map and the acceptance of easements therein offered for - 1 - ATTACHMENT dedication for street and other public purposes and the covenants herein contained, the parties hereto mutually covenant and agree as follows: General Requirements: Subdivider shall comply with all the requirements specified in the "AMENDMENTTO IMPROVEMENT AND REIMBURSEMENT AGREEMENT (ASSESSOR'S PARCELS #666 -301 -01,666 -301 -09,675 -361-01,675-361- 03, 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, the WATER FACILITIES AGREEMENT — SUNCAL PROPERTIES, dated September 2, 2003 and its subsequent amendment dated March 16, 2004, the conditions of approval set fort in City Council Resolution No. 92-6-16-4 (for Tentative Tract Map 14196) and all applicable conditions of approval set fort in City Council Resolution No. 03- 09-16-06 (for Tentative Tract Map 15609) 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 work of improvement shall include but not be limited to the undergfotinding 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 to the satisfaction of the City Engineer. 1.1 Fair -Share Circulation Improvement Participation. Prior to the issuance of the first 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, 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 (15t) 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: Orteoa Hiohwav & 1-5 Southbound RamvS Improvements: Construct an additional southbound right -turn lane and re -stripe existing center lane to a left1thru lane. Fair share: 7.3% -2- Ortega Highway & 1-5 Northbound Ramps: Improvements: Construct westbound free right turn lane Fair share: 0.8% 1.2 Off -Site Circulation Improvement Construction. Prior to the issuance of the 15 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 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 Ramblas & Via Califomia: Improvements: Install a traffic signal and construct a separate southbound right -turn lane. 1.3 Construction of Avenida California. Prior to issuance of the 151 st 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 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 15151 Residential Building Permit any section of Avenida California Street 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 California, or the issuance of the 1515 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 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 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 -3- La Novia Avenue & Valle Roadll-5 Northbound Ramps: Improvements: Realign La Novia Avenue and the 1-5 NB Ramps and install a traffic signal. Valle Road from San Juan Creek Road to La Novia Avenue: Improvements: Widen to a two-lane divided roadway. 2. Securi : 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 100% of the estimated cost of construction of the improvements (110% for water related 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 (110% for water related 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 i 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 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, 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 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 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 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 meetthe 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 -5- 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; (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 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 -6- 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. 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 the subdivision map 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. 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- 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 N, 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 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. 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; 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 Improvementwill 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 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 Subdividers contractor. 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 Subdividers contractor 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 shall be binding on City unless approved in writing by the City Engineer. -10- 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. 16. Liability for Performance, Iniury 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 - 11 - 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 whensoeverthe 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: 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. Mips 20 21 22. 23. d. 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. Relationship of Contractors: 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. 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. 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. Warrantv: 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 (12) -13- months after completion and written acceptance thereof by the Director of Engineering and Building and by the Homeowner's Association. 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 remedy shall be in addition to, and not exclusive of, City's right to pursue any other administrative, legal, or equitable remedyto 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. -14- 25. 26. 27 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. 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 drawings shall be certified and shall reflect the job as actually constructed, with all changes incorporated therein. Assignment: This agreement shall not be assignable by Subdivider without written consent of City. -15- 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__L5__th day of S e� 2006, the name and corporate seal of each corporate party being hereto of iixe and these presents duly signed by its undersigned representative(s) pursuant to authority of its governing body. SJD PARTNERS, LTD., A California Limited Partnership By: © By: Name: Bruce V. COOK Its: Q e P-r4k C oun5CA 13 (Attach Notary Acknowledgement) Attachment: Exhibit A -16- CITY OF SAN JUAN CAPISTRANO David M. Swerdlin, Mayor ►_11r:6,9 Margaret R. Monahan, City Clerk APPROVED AS TO FORM: Johj Shaw, City Attorney CALIFORNIA ALL - PUPWO E ACKNOWLEDGMENT State of California County of Orange On September 15, 2006 before me, Susan E. Morales/Notary Public NAME, TITLE OF OFFICER personally appeared Bruce Y. Cook NAME OF SIGNER(S) ® Personally known to me - or - ❑ Proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. (SIGNATURE OF NOTARY) OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER ❑ INDIVIDUAL/OWNER ❑ CORPORATE OFFICER TITLE(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ❑ MANAGING MEMBER M GENERAL COUNSEL SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTITY(IES) SJD Partners, Ltd DESCRIPTION OF ATTACHED DOCUMENT Subdivision Agreement - Tract #15609 TITLE OR TYPE OF DOCUMENT 16 NUMBER OF PAGES 09/15/06 DATE OF DOCUMENT a SUBDIVISION IMPROVEMENT AGREEMENT - TRACT 15609 EXHIBIT "A" WORKS OF IMPROVEMENT Type of Improvements: Grading Erosion and Silt Control Off-site Circulation Obligations Street and Related appurtenances Storm Drain Sanitary Sewer Landscaping and Irrigation Street Monuments Water and related appurtenances Exhibit A Estimated Construction Cost Or Bond Amount Processed through BLDG. Division Processed through BLDG. Division Bonds were processed separately $ 319,287 $ 343,468 $378,797 $ 678,850 $ 15,500 $114,291 1MENT 5