14-0717_LV PACIFIC POINT_Operating MemorandumReemiding Requested Ur.
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RECORDING REQUESTED BY:
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
AND WHEN RECORDED, MAIL TO:
Maria Morris, 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
Recorded in Official Records, Orange County
Hugh Nguyen, Clerk -Recorder
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AGREEMENT
BETWEEN THE CITY OF SAN JUAN CAPISTRANO AND
LV PACIFIC POINT LLC
(OPERATING MEMORANDUM FOR AMENDED AND
RESTATED DEVELOPMENT AGREEMENT FOR
THE PACIFICA SAN JUAN PROJECT)
RECORDING REQUESTED BY AND WHEN RECORDED,
MAIL TO:
City Clerk
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
AGREEMENT
(OPERATING MEMORANDUM FOR AMENDED AND RESTATED DEVELOPMENT AGREEMENT
FOR THE PACIFICA SAN JUAN PROJECT)
This Operating Memorandum (the "Operating Memorandum") is entered into between the City of San
Juan Capistrano, a municipal corporation ("City"), and LV Pacific Point LLC, a Delaware limited
liability company ("Owner"). City and Owner are referred to within this Amendment as the "Parties."
RECITALS
A. Owner owns the real property within the City (the "Property") which is the subject of the Amended
and Restated Development Agreement for the Pacifica San Juan Project (the "DA").
B. Section 11.11 of the DA allows the Parties to enter into an Operating Memorandum to modify the
details of either Party's performance under the DA, unless such a modification is otherwise
contrary to law.
C. The Parties have agreed to this Operating Memorandum to address issues related to a portion of
the Property identified as Lot 1 of Tract 15687 ("Lot 1 "). Lot 1 is presently undergoing a surcharge
program and is, therefore, an active construction site. Lot 1 is described on Exhibit A and depicted
on Exhibit B, the "Phase 1 - Maintenance Exhibit" (the "Maintenance Exhibit").
D. The Parties have agreed to a three-phase program to enhance the appearance of Lot 1 while it
serves as a construction site and until grading begins for the ultimate development of Lot 1 (the
"Program").
AGREEMENT
The Parties agree as follows:
1. Program Phases. The phases of the Program will be as follows:
Phase 1: Initial Maintenance. The components of Phase 1 are depicted on the Maintenance
Exhibit. Those components consist of the following Action Items:
a. Weed removal on the entire lot. Soil disturbance shall be kept to a minimum.
b. Application of a high quality bonded fiber material on the entire lot, including slopes.
The material shall be SprayMatt® or equivalent.
C. Removal of existing chain link fence and gates at drive entrance on Avenida
California.
d. Removal of temporary power poles on Lot 1 and on Avenida California.
e. Removal of 4 foot chain link fencing along bike path and replace with 6' chain link
fence and gate on perimeter of temporary drainage basin.
f. Repair and/or replace existing chain link fencing along the property frontage of
Camino Las Ramblas with 6 foot green screen chain link fencing.
g. Repair and/or replace the existing 6 foot high chain link fencing along the property
frontage of Via De Agua with green screen chain link fencing.
h. Replace the chain link fencing described in Action Item g above with 6 foot cedar
fencing or equivalent.
Schedule: Phase 1 Action Items a -g shall be complete within 45 days of the signing of this
Operating Memorandum by both Parties, subject to force majeure. With respect to Action
Item h, Owner will complete construction of that fencing by August 1, 2014, or within 30 days
of receiving all required permits for the construction, whichever comes later, except as
provided' below.
Notwithstanding the forgoing, Owner may delay the installation of the fencing required by
Action Item h subject to the following: If by August 1,'2014 it is determined by Owner and
City that the surchargelcompaction of the soil on the western portion of Lot 1 is complete,
then so long as Owner applies to the City by September 1, 2014 for all grading and other
permits required for Action Item a of Phase 2 below, Owner shall be required to Install the
fencing required by Action Item h at the same time that it installs the fencing required by
Action Item b of Phase 2.
Phase 2: Surcharge Removal / Grading I Additional Fencing. The components of Phase 2
consist of the following Action Items:
a. The surcharge material located on the western portion of Lot 1 shall be removed and
associated grading work and soils compaction will occur in accordance with a
remedial grading plan incorporating the geotechnical recommendations of the Project
geotechnical engineer and as approved by the City Engineer. All work shall be
performed in accordance with all applicable City, state, and federal regulations. The
grading plan submitted to the City shall include before and after contours of the site,
identify a haul route if soil is to be exported, provide detention basin calculations, and
include a drainage plan identifying ouMow. Wh.ere and if needed, an encroachment
permit may be required by the City.
b. Obtain a City permit for and install 6 foot cedar or equivalent fencing along Camino
Las Ramblas and Avenida California pursuant to plans and permit issued by City.
Schedule: Phase 2 Action Item a shall be completed by Owner within 90 days after approval
by the City of all plans and permits necessary to perforin Action ]tem a. Action Item b shall be
completed within the later of 30'days after the completion of Action Item a and the issuance
by the City of the permit for the installation of the fencing.
Phase 3: Ongoing Site Maintenance. Lot 1 shall be subject to an ongoing maintenance plan,
in accordance with City's municipal code requirements, until the issuance of grading permits for
the development of Lot 1. The components of Phase 3 consist of the following Action Items:
a. Weed control.
Bonded fiber material maintenance.
C. Drainage maintenance.
d. Enclosure/fence maintenance.
e. SWPPP and BMP maintenance.
2
Schedule: Phase 3 Action Items, including the steps necessary to obtain any required
governmental approvals, shall commence immediately after the completion of Phase 2 Action
Items.
2. Expiration of Obligations. The obligations created by the Operating Memorandum shall expire
upon the issuance of the first grading permit for the ultimate development of Lot 1 (as opposed to
any grading permit issued to implement the Program).
3. Obligations Run With the Land. It is the intent of the Parties that the obligations created by this
Operating Memorandum shall be those of the record owner of title to Lot 1 at the time that the
obligations are to be performed and shall run with the land. For that reason, this Operating
Memorandum may be recorded by either Party with the Recorder of the County of Orange.
4. Enforced Delay I Extension of Time. Section 9.4 of the DA shall apply to all acts to be
performed under this Operating Memorandum,
5. Modification of Performance. For good cause, the Development Services Director may waive
the performance or timing of performance of any acts to be performed by Owner under this
Operating Memorandum.
This Operating Memorandum has been signed by Owner and the Planning Director of City on the
dates indicated next to their respective signatures below.
ldcity"
City of San Juan Capistrano,
a municipal corporation
By:
Name: Charles View
Title: Development Services Director
I approve tie form A this Operating
City Attorney
ATTEST:
Maria MordsANI , Litt' Clerk
3
"Owner"
LV PACIFIC POINT LLC,
a Delaware limited liability company
By: PAM[ LLC,
Its Managing Member
By .
Name;j,, ,,)s Stiklnria,c _
Title:
PUBLIC AGENCY FORM OF ACKNOWLEDGEMENT
State of California )
County of Orange ) ss.
City of San Juan Capistrano )
(Gov't Code 40814 & Civil Code 118 1)
On .tune 18 2013, before me, Maria Morris,_ City Clerk, personally appeared
Charlie View, Development Services Director and Hans Van Lutea, City Attorney, who
proved to me on the basis of satisfactory evidence to the be person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity, and that by his/her/there signature on the instrument the person(s),
or the entity upon behalf of which the person(s) acted, executed the instrument .
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
(SEAL)
Capacity Claimed by Signers
OPTIONAL
DEVELOPMENT SERVICES DIRECTOR
CITY ATTORNEY
Title
Signer is Representing
City of San Juan Capistrano
Description of Attached Document
Title or Type of Document
Operating Memorandum between the City of
San Juan Capistrano and LV Pacific Point
LLC for the Amended and Restated
Development Agreement for the Pacifica San
Juan Project.
Number of Pages: 7
EXHIBIT A
Legal Description of Lot 1
Lot 1 of Tract No. 15687, as per map recorded in Book 875, Pages 1 through 5, inclusive, of
miscellaneous maps in the Office of the County Recorder of the County of Orange.
Exhibit A - 1
EXHIBIT B
Maintenance Exhibit
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Exhibit B - 1
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Exhibit B - 1