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06-0703_WHISPERING HILLS, LLC_D17_Agenda Report. 7/3/2006 D17 AGENDA REPORT TO: Dave Adams, City Manager FROM: Nasser Abbaszadeh, Director of Engineering & Building SUBJECT: Consideration of Approval of Final Map and Subdivision Improvement Agreement for Tract 16634 Whispering Hills Estates (Whispering Hills LLC.). RECOMMENDATION By motion; Approve the Final Tract Map No. 16634 as it conforms to the requirements set forth in the Subdivision Map Act and the conditions of approval for Vesting Tentative Tract Map 16634; and, 2. Authorize the City Engineer and the City Clerk to execute the Final Map. 3. Authorize the Mayor and City Clerk to execute the corresponding Subdivision Improvement Agreement and accept the corresponding securities. 4. Direct the City Clerk to forward the Map and corresponding Subdivision Improvement Agreement to the County Recorder. SITUATION A. Summary and Recommendation Whispering Hills LLC., Owner/Developer of 155 residential homes, within gated communities, on approximately 310.2 acres of land subdivision in Tract 16634, has submitted the Final Map for City Council consideration and approval. The map, as well as the grading and improvement plans, have been reviewed by the Engineering Division and were found to be in conformance with the Tentative Tract Map and the Subdivision Map Act. All appropriate bonds and fees have been submitted and paid to the City and the developer has signed the City's Subdivision Improvement Agreement (Attachment 1). All applicable conditions of approval required by Resolution 04-07-20-01 for Tentative Tract Map 16634 (Available at City Clerk's office for review) have been met. Agenda Report Paae 2 B. Backaround • 0 July 3, 2006 On July 20, 2001, the City Council adopted Resolution No. 04-07-20-01, conditionally approving Whispering Hills LLC's Vesting Tentative Tract Map16634, which allowed for the development of the land. The map, 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 Agreement 3. Faithful Performance and Labor and Material bonds for the following improvements, which may be reduced or exonerated by the City Engineer upon a satisfactory completion: a. Street Improvement b. Storm Drain Improvement c. Sewer Improvement d. Water Improvement e. Landscape and Irrigation Improvements f. Survey Monumentation (performance bond only) g. Off-site Sewer Improvement COMMISSION/BOARD REVIEW AND RECOMMENDATIONS The Tentative Map has 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 Whispering Hills LLC. * Pardue, Cornwell & Associates * Agenda report included Agenda Report • Paoe 3 By motion; July 3, 2006 1. Approve the Final Tract Map No. 16634 as it conforms to the requirements set forth in the Subdivision Map Act and the conditions of approval for Vesting Tentative Tract Map 16634; and, 2. Authorize the City Engineer and the City Clerk to execute the Final Map. 3. Authorize the Mayor and City Clerk to execute the corresponding Subdivision Improvement Agreement and accept the corresponding securities. 4. Direct the City Clerk to forward the Map and corresponding Subdivision Improvement Agreement to the County Recorder. Respectfully submitted, Nasser Abbaszadeh, P.E. Director of Engineering & Building Prepared by: ,6arry6nouGalr Senior Engineer Attachments: 1. Subdivision Improvement Agreement for Tract 16634 2. Location Map 0 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 E This Space for Recorder's Use Only Title of Document: SUBDIVISION IMPROVEMENT AGREEMENT TENTATIVE TRACT MAP 16634 ATTACHMENT E 0 SUBDIVISION IMPROVEMENT AGREEMENT SUBJECT: VESTING TENTATIVE TRACT MAP 16634 THIS AGREEMENT is between the CITY OF SAN JUAN CAPISTRANO, a municipal corporation, State of California, hereinafter referred to as "City" and WHISPERING HILLS, LLC, a Delaware Limited Liability Company whose mailing address is 19700 Fairchild Road, Suite 120, Irvine, California 92612, hereinafter referred to as "Subdivider": WHEREAS, the vesting tentative map application was conditionally approved by Resolution No. 04-07-20-01; 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 Vesting Tentative Tract Map 16634 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 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 conditions of approval set fort in City Council Resolution No. 04-07-20-01 for Vesting Tentative Tract Map 16634 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 i 0 works of improvement shall include but not be limited to the undergrounding of the overhead utilities, the placement of curb markers at all proposed street catch basin inlet structures in accordance with the National Pollution Discharge Elimination System (NPDES) requirement. Subdivider shall comply with the following: A. Prior to issuance of the construction permit for, and commencement of construction on Vista Montana ("A" Street), Subdivider shall submit to the City Engineer and Planning Director for their review and processing through the City's Design Review Committee (DRC) and shall obtain approval for, landscape and irrigation plans for the median and parkways on Vista Montana. Said plans shall include but not be limited to planting, decorative hardscape, lighting and signage. B. Subdivider shall comply with the following requirements pertaining to the private park: 1. Prior to the issuance of the first building permit for the east canyon (other than model homes), Subdivider shall record a lot line adjustment to create a separate lot for the private park site, and shall dedicate an easement over said lot stating that lot is for park purposes only to be maintained by the Homeowner's Association. 2. Prior to the issuance of the first building permit for the east canyon (other than model homes), or prior to release of the first model home in the east canyon for model home use, whichever occurs last, Subdivider shall improve the private park. The improvements shall be in accordance with final plans which shall be prepared by Subdivider and approved by the Parks, Recreation and Equestrian Commission, and may consist of but shall not necessarily be limited to: grading, turf, trees, shrubs, groundcover, irrigation, picnic benches and tables, play equipment for young children, walkways, and other hardscape. 3. A minimum 6 -foot wide pedestrian path from the "E" Street cul-de-sac to the private park shall be improved by Subdivider to the satisfaction of the Planning Director per the following schedule: temporary unpaved surfacing prior to issuance of the first building permit for lots 13 and 14, and final paved surfacing prior to release of performance securities for the east canyon area. C. Prior to the issuance of the first building permit for the east canyon (other than model homes), Subdivider shall submit to the Planning Director, for review and shall obtain approval for, development plans which shall include grading plans (unless previously approved by the City), preliminary site and landscape plans, architectural elevations, wall/fence plans, project entry and gate plans, sample material boards, and other plans as specified by the Planning Director. The landscaping plans shall provide at least one street tree per residential lot in the east canyon residential area. Architectural elevations will not be required for West Canyon homes if the Planning Director confirms that the West Canyon will consist of custom home development only. D. Prior to the issuance of the first building permit forthe west canyon, Subdivider shall submit to the Planning Director, for review and shall obtain approval for, development plans which shall include grading plans (unless previously approved by the City), landscape plans of common areas, wall/fence plans, of common areas, project entry and gate plans and other plans as specified by the Planning Director. Architectural elevations will not be required for West Canyon homes if the Planning Director confirms that the West Canyon will consist of custom home development only. E. Prior to issuance of the construction permit for Vista Montana ("A" Street), Subdivider of the residential project in the East Canyon shall submit, for review and shall obtain city approval for backbone water and sewer improvement plans prepared by a registered Civil Engineer. Said plans shall ascertain that the backbone water and sewer infrastructure will provide the required fire flow to connect to the San Juan Hills High School site and enough sewer capacity down stream to service the subdivision and the San Juan Hills high school respectively. Any improvement to the down stream sewer system, (based on Tetra Tech study and subsequent modifications), as determined by the City Engineer, shall be constructed at Subdivider's cost, priorto the issuance of the first Building Permit for other than model homes and the fifteen custom lots in the West Canyon, if the proposed adjacent public high school is opened to the students and operational, or prior to the issuance of the seventieth Building Permit for other than model homes and the fifteen custom lots in the West Canyon, if the proposed adjacent public high school has not yet opened to the students and is not operational. Any changes deferral in the timing of this condition, caused by unforeseen delays, shall be subject to review and approval by the City Engineer. F. Prior to the recordation of the conservation easement, the Subdivider shall grant the City a 30 -foot wide easement for ingress/egress purposes and the construction and maintenance of a water pipeline and public facilities, as shown on the final map, and 20 -foot wide easements for ingress/egress purposes over public trails, as shown on the final map, and for construction and maintenance of the public trails and facilities. Any final recorded conservation easement shall not impede in any manner the use or maintenance of the ingress/egress easements, water pipeline and public facilities easements, and public trail easements. Participation towards Potential Future Offsite Sewer Repairs/Improvements Prior to final map approval, Subdivider shall pay $100,000 to cover in full any and all potential future costs related to repairs and/or improvements for the sewer line along the extension of Camino Lacouague. Subdivider shall post the necessary sureties for this sewer line in accordance with section 2 below of this agreement. Said sureties shall remain in full force at the City for a period of five years from the 3 date of completion and acceptance. Subdivider shall not be responsible thereafter for any additional costs associated with said section of sewer line. Offsite Improvement Obligation and Participation. Prior to issuance of the first (1 s) building permit, other than model homes and the fifteen custom lots in the West Canyon, the Subdivider shall pay for the project's pro -rata share of traffic generated, as determined in the City -approved traffic study, for the following improvement. This financial participation shall be in addition to paying Capistrano Circulation Fee Program (CCFP) fees. The applicant's financial participation, shown in the table below, includes the cost of right-of-way acquisition, design, and construction including, 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: Location Improvement Financial Participation Ortega Highway, Construction of an $784,800, (which represents Via Cordova/Hunt additional eastbound 12%, based on a total Club Drive to and westbound lane construction cost of $6,540,000). Avenida La Pata and appurtenances Ortega Highway Construction of an $93,581.88, (which represents @ 1-5 additional eastbound 21 %, based on a total Southbound right -turn lane construction cost of $403,397) Ramps 1-5 Northbound Construction of an $84,713.37, (which represents Off -Ramp @ additional lane on the 21 %, based on a total Ortega Highway off -ramp construction cost of $445,628) Ortega Highway, Installation of a signal $160,000, (which was determined from 1-5 to La coordination and by the City Engineer, based on a Novia Avenue surveillance system total construction cost of $320,000 2. Securitv: A. Subdivider shall, at all times beginning with the execution of this agreement, guarantee Subdivider's performance of this agreement by providing Citywith 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: 0 (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 and 110% of the estimated cost of the water improvements; and (ii) A Labor and Materials Bond to secure payment to any contractor, subcontractor, persons renting equipment or furnishing labor or materials forthe improvements required to be constructed orinstailed pursuant to this agreement in the additional amount of 100% of the estimated cost of construction of the improvements and 110% of the estimated cost of the water improvements; and (iii) A Subdivision Monument Bond in the amount of 100% of the estimated cost of setting subdivision monuments as shown in Exhibit „A„ B. In order to guarantee and warranty the Works of Improvement and in addition to the security instruments referenced in Paragraph 2(A) above, Subdivider shall provide to City the following Security Instruments: (i) Prior to the City's final acceptance of the Works of Improvement and recordation of a Notice of Completion, Subdivider shall provide to City a Warranty Bond for Works of Improvement warranting the accepted Works of Improvement for a period of one (1) year following said acceptance against any defective work or labor done or defective material furnished. The amount of such Warranty Bond for Works of Improvement shall be equal to twenty-five percent (25%) of the 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(s) ("HOA[s]"). 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 0 0 Instruments required by this agreement are hereby incorporated in this agreement by reference. City Engineer shall release the Faithful Performance Bond upon Subdivider's written request following acceptance by City of the Works of Improvement and Subdivider's delivery to City of the Warranty Bond for Works of Improvement. City Engineer shall release the Labor and Materials Bond upon Subdivider's written request and following acceptance by City of the Works of Improvement and after expiration of the time within which lien claims are required to be made pursuant to Article 3 (commencing with Section 3114) of Chapter 2 of Title 15 of Part 4 of Division Third of the California Civil Code. If lien claims have been timely filed, City shall hold the Labor and Materials Bond until (a) such claims have been resolved, (b) Subdivider has provided a statutory bond, or otherwise as required by applicable law. City Engineer shall release the Warranty Bond for Works of Improvement upon Subdivider's written request following the expiration of the warranty period, provided no claims are outstanding at that time regarding defective work. The release of the Landscape and Irrigation Warranty Bond held by the HOA(s) will be determined by a separate agreement between the developer and the HOA(s). 2.1 Form of Security Instruments. All Security Instruments shall meet the following minimum requirements and otherwise shall be in a form acceptable to the City Attorney: (i) Any insurance company acting as surety shall have a minimum rating of A -IX, as rated by the current edition of Best's Key Rating Guide published by A.M. Best's Company, Oldwick, New Jersey, 08858; any bank acting as surety shall have a minimum rating of AA, as rated by Moody's or Standard & Poor's; (ii) Payments under the Security Instruments shall be required to be made (and, with respect to bonds, litigation shall be required to be instituted and maintained) in the County of Orange, State of California; (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 M 0 3. Time of Completion: 9 responsibility to compensate City for all of the City's attorneys' fees and litigation expenses reasonably incurred enforcing its rights under the Security Instruments. 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 Acreaoe: 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. 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. 0 0 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 pians 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. 0 9 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 Citv: 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 contractorof any obligations to fulfill this Agreement as herein provided, and unsuitable materials or work may be rejected notwithstanding that such materials or work may have been previously overlooked or accepted. No inspection or acceptance pertaining to specific parts of the Works of Improvement shall be construed as final acceptance of any part until the overall final acceptance by City is made. Final acceptance shall not constitute a waiver by City of defective work subsequently discovered. The date on which the Works of Improvement will be considered as complete shall be that date on which the City Council accepts the improvements and authorizes the City Clerk to file a Notice of Completion with respect thereto. 10 9 0 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 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. 11 0 0 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 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. 12 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: 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. 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. 13 9 0 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) 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. 14 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. 25. Notice of Comoletion: 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. 15 0 0 26. Filing of Improvement Plans: Upon completion of the job and prior to final acceptance of the Works of Improvement bythe City, the Subdividershall submitto 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. 27. Assignment: This agreement shall not be assignable by Subdivider without written consent of City. 114 0 0 IN WITNESS WHEREOF, two (2) identical counterparts of this agreement, each of which shall for all purposes be deed an original thereof, have been duly executed by the Subdivider herein named on the cad day of )t 4A Q/ , 2006, the name and corporate seal of each corporate party being hereto affixed and these presents duly signed by its undersigned representative(s) pursuant to authority of its governing body. WHISPERING HILLS, LLC, A Delaware Limited Liability Company Name: Dm h. b l.i'l/ MtR It hloporing Hills, LLC, 014WAN-RmIted 6I. -bill" ', Gemp" ®y, Conoorde Development, L.P., e Calilornie limited partnership bit parrerl Investments, Cai(t©raia corporation, General Partner (Attach Notary Acknowledgement) Attachment: Exhibit "A" 17 0 CITY OF SAN JUAN CAPISTRANO David M. Swerdlin, Mayor ATTEST: Margaret R. Monahan, City Clerk APPROVED AS TO FORM: John Sha , City Attorney CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT STATE OF CALIFORNIA ss. COUNTY OF ORANGE On June 22, 2006, before me, D. Harvey, a Notary Public in and for said State, personally appeared Dennis Gage, personally known to me to be the person whose name is subcribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. L%�Myco U HARVEYComminlon # 1516988 Notary Yub#c • caltfornlq Orange county mm. EzpRea Oct 1, 2008 (seal) Though the information below is not required by law, R may prove voivabie to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: _Track Map 16634 subdivision Improvement Agreement Document Date: Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer(s) Signer's Name: _Dennis ❑ Individual El Corporate Officer ❑Title(s): rtner --sited --❑ General Attorney -in -Fact ❑Trustee ❑Guardian or Conservator ❑Other: Signer is Representing: Number of Pages Capacity(les) Claimed by Signer(s) Signer's Name: ❑ Individual ❑Corporate Officer ❑Title(s): []Partner -- El Limited --❑ General ❑ Attorney -i n -Fact ❑Trustee El Guardian or Conservator ❑ Other: Signer is Representing: 0 0 SUBDIVISION IMPROVEMENT AGREEMENT - TRACT 16634 EXHIBIT "A" WORKS OF IMPROVEMENT Type of Improvement Estimated Construction Cost or Bond Amount 140 Lots — East Canyon 15 Lots — West Canyon Grading Processed through Building Processed through Building Division Division Erosion and Silt Control Processed through Building Processed through Building Division Division Street and Related $1,902,000 $476,000 appurtenances in -tract Major Access Street and N/A Related Appurtenances $621,000 (including in -street sewer and water Storm Drain $1,492,000 $356,000 Sanitary Sewer $596,000 $168,000 Off-site Sanitary Sewer $88,000 extension Off-site Sewer Impact $795,000 Mitigation / U sizin Landscaping and Irrigation $1,343,000 $499,000 Water Improvements $563,000 $201,000 Water Improvement $100,000 N/A Vista Montana Off-site Water $1,473,000 N/A Improvements Monumentation $30,000 $4,000 m 0 6 VICINITY MAP N.T.S. ATTACHMENT 2