05-1115_WHISPERING HILLS LLC_D9_Agenda Report • • 11/15/2005
D9
AGENDA REPORT
TO: Dave Adams, City Manager
FROM: Amy Amirani, Public Works Director
SUBJECT: Consideration of Reclaimed Water Reservoir Site Agreement for the 550
E Reservoir (Whispering Hills Development)
RECOMMENDATION:
By motion, approve a Reclaimed Water Reservoir Site Agreement for the construction
of the 550 E Reservoir.
SITUATION:
A. Summary and Recommendation
As part of the Conditions of Approval for the Whispering Hills Development, the
Developer, Whispering Hills LLC, is required to enter into an agreement with the City of
San Juan Capistrano to allow the construction of a reclaimed water reservoir, namely,
the 550 E Reservoir. The proposed 550 E Reservoir is an essential part of the City's
Non-Domestic Water Master Plan and will serve non-domestic water to the Whispering
Hills Development as well as neighboring communities in the southeastern portion of
the City.
The Agreement will include provisions for determination of a viable site for the proposed
reservoir, valuation and sale of the reservoir site to the City, mitigation of view impacts,
and coordination of grading and construction activities to facilitate construction of the
reservoir. Staff recommends approval of the Agreement.
COMMISSION/BOARD REVIEW AND RECOMMENDATIONS:
The Water Advisory Commission has reviewed this item at their October 25, 2005,
meeting. The Commission recommended approval of the Agreement.
FINANCIAL CONSIDERATIONS:
Approval of the Reclaimed Water Reservoir Site Agreement has no impact on the FY
2005-2006 CIP Budget.
Agenda Report November 15, 2005
Page 2
NOTIFICATION:
Whispering Hills, LLC.
RECOMMENDATION:
By motion, approve a Reclaimed Water Reservoir Site Agreement for the construction
of the 550 E Reservoir.
Respectfully submitted, Prepared by,
oLMI C"Vw'CL'VL-
Amy Amirani 4tel o
Public Works Director ivil ngineer
Attachments: 1. Reclaimed Water Reservoir Site Agree
RECORDED AT THE REQUEST OF
AND RETURN TO:
City of San Juan Capistrano
City Clerk's Department
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
[Exempt from Recording Fees/G.C. Sec. 61031
RECLAIMED WATER RESERVOIR SITE AGREEMENT
Vesting Tentative Map No. 16634
(Assessor's Parcel No. , County of Orange)
This Agreement is entered into this day of 2005, by and between
the City of San Juan Capistrano (hereinafter"City"), and Whispering Hills LLC (hereinafter
"Developer").
RECITALS:
Whereas, City approved Developer's tentative map application for subdivision tract
16634 on July 20, 2004, and
Whereas, condition 1.39 of Vesting Tentative Map No. 16634 requires developer to enter
into an agreement with City for the purpose of providing a non-domestic water reservoir site,
within the Tentative Map boundaries, for use by the City prior to final map approval, and
Whereas, this agreement is intended by the parties to implement condition 1.39, which
condition reads as follows:
"Non-Domestic Reservoir. Prior to approval of the first final map, the
applicant/subdivider shall enter into an agreement with the City to provide a site for a
non-domestic reservoir within the tentative map boundaries. The agreement may include
the following provisions:
a. Reimbursement and/or fee credit to the applicant/subdivider based on fair
market value of the reservoir site.
b. Site area and location.
C. Grading.
d. Mitigation of view impacts, such as partial or complete burial of the tank
berming, tank color, landscaping, etc.
e. Access road/easement.
f Reservoir construction routes.
ATTACHMENT
The City shall be responsible for processing land use entitlements and environmental
approvals for the reservoir. The applicant/subdivider shall not be required to design or
build the reservoir. The applicantlsubdivider shall agree to share with City all available
site data on proposed reservoir locations, such as environmental, soils, drainage, or
other studies previously completed for the subdivision, and to cooperate with the City to
facilitate the property acquisition process without undue delay. The applicant/subdivider
shall agree to coordinate construction ofthe reservoir with construction ofthe
subdivision improvements to the extent feasible and reasonable. "
Now, Therefore, City and Developer hereby mutually agree as follows:
Section 1. Developer Sale of Property to City for Non-Domestic Water Reservoir
Site.
(a) Developer agrees to sell and City agrees to buy approximately one
(1)acre of real property within an area of property which shall be
selected by City from one of two locations identified on the site
plan attached as Exhibit 1 to this Agreement, and incorporated
herein by this reference. The final reservoir site shall,to the
greatest extent practicable,be located approximately entirely
within the land area of one of these two locations. The transfer of
the property to City is for the purpose of constructing a
City-owned one million gallon non-domestic water reservoir
facility and related improvements. The exact location and size of
the property to be acquired by City for this purpose will be
determined at such time as a preliminary design study including
geotechnical and environmental evaluation for the area is
completed by the City. All Resource Agency consultations,
approvals and/or permitting will be the obligation of City, as set
forth in Vesting Tentative Map condition 1.39.
(b) Developer agrees to dedicate at no cost to City and any affected
third party municipal utility-required temporary and permanent
easements for utility lines and access roadways serving the
reservoir site. Utility lines include,but shall not be limited to
feeder pipelines, storm drains,reservoir drains, and electrical and
telecommunications lines. Such temporary or permanent
easements shall provide construction access over the lettered lots
within tract 16634.
(c) Developer agrees to coordinate construction of the subdivision
improvements with the construction of the reservoir to the extent
reasonably feasible, including provision of access and construction
of staging areas by mutual consent of the parties.
2
(d) City's purchase of the one acre land is contingent upon completing
to City's satisfaction certain studies establishing that the subject
property is geologically adequate for the project;that the site meets
other applicable environmental constraints;that all required
utilities for the proposed reservoir can be supplied to the site; and
that all City zoning and site access requirements are satisfied. City
shall be responsible for and shall prepare such studies. If the site is
deemed to be unsuitable,Developer and City agree to explore
other areas of open space within TTM 16634 for a suitable site.
(e) All environmental impacts, including but not limited to visual
impacts, will be addressed through future environmental and
design review,as approved by the City. Visual impact mitigation
may include but not be limited to partial or complete burial of the
tank, berming, tank color, landscaping,etc.
Section 2. Valuation of Reservoir Site to be Conveyed to Citv.
In establishing the monetary value of the Reservoir Site described in
section 1,City shall select a certified MAI appraiser of its choice to conduct the appraisal. The
parties acknowledge and agree that the subject property has been designated as open space land.
Accordingly the appraiser shall be instructed to assess the value of the land in relation to the
value of other open space lands in the neighboring vicinity.
If Developer and City cannot reach agreement on price based upon the
City's appraisal,then Developer and City shall mutually select a second certified MAI appraiser.
Developer shall bear the cost of this appraisal. If the parties are unable to reach agreement on
price based upon both appraisal figures, then the parties agree Developer shall immediately
convey title to the property upon receiving formal notice of impasse from City. The parties shall
then initiate an appropriate form of binding arbitration to establish price. Costs of the arbitration
shall be split evenly between the parties.
Developer agrees to share with City all available data on open space
property to be purchased, including but not limited to, environmental, sols, drainage,or other
studies previously completed for the subdivision.
Section 3. Agreement Runs With the Land.
This Agreement shall run with the land and be binding upon all of
Developer's successors and assigns in perpetuity.
Section 4. Defaults/Disputes and Attorney's Fees.
(a) Failure or delay by any party to perform any term or provision of
this Agreement constitutes a default under this Agreement. The
party who so fails or delays must immediately commence to cure,
correct, or remedy such failure or delay,and shall complete such
cure, correction or remedy with reasonable diligence. The injured
3
party shall give written notice of default to the party in default,
specifying the default complained of by the injured party. If the
cure of default is not commenced and completed within 30 days
after service of default,the defaulting party shall be liable for
damages or other applicable relief caused by such default,and the
non-defaulting party may thereafter commence an action for
damages or specific performance of this Agreement,with respect
to such default.
(b) If either party incurs an expense, including actual costs of
collection,reasonable attorney's fees, expenses of discovery,
preparation for litigation, expert witness fees, and litigation
expenses and costs, in connection with any action or proceeding
instituted by either party by reason of any default or alleged default
of the other parry hereunder,the party prevailing in such action or
proceeding shall be entitled to recover its reasonable expenses
from the other party.
(c) Any other dispute arising under this agreement shall be resolved by
first conducting a meet and confer process for a period of at least
30 days before commencement of any action brought by either
party. Any dispute which cannot be resolved or cured by a meet
and confer process shall then be subject to binding arbitration
under the auspices of JAMS/Endispute or equivalent thereof.
Section 5. Force Majeure,
In the event the performance by either party of any of its obligations
hereunder is delayed by reason of the act or neglect of the other party, act of God,stormy or
inclement weather, strike, labor dispute,boycott, lockout or other like defensive action by such
party, inability to obtain labor or materials,governmental restrictions,riot, insurrection,war,
catastrophe, casualty, act of the public enemy, or any other cause, whether similar or dissimilar,
beyond the reasonable control of the party from whom such performance is due,the period for
the commencement or completion thereof shall be extended for a period equal to the period
during which performance is so delayed.
Section 6. Notices.
All notices, requests,demands, consents and other communication shall be
in writing, including telex and facsimile transmission and shall be deemed to have been duly
given on the date of service if served personally by telex or facsimile transmission or 48 hours
after mailing if mailed by first class mail as follows:
To: City of San Juan Capistrano
Attn: City Clerk
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
4
To: Whispering Hills LLC
Attn: Dennis Gage
19700 Fairchild Rd., Suite 120
Irvine, CA 92612
Section 8. Entire Aereement.
This Agreement contains the entire agreement between the parties hereto
and supersedes any prior concurrent written or oral agreement between said parties concerning
the subject matter contained herein. There are no representations, agreements, arrangements or
undertakings, oral or written,between or among the parties hereto relating to the subject matter
contained in this Agreement which have not been fully expressed herein.
In Witness Whereof, the parties hereto have executed this Agreement on the date
above written.
City of San Juan Capistrano:
By:
Wyatt Hart, Mayor
Approved as to Form:
By:
John R. Shaw, City Attorney
WHISPERING HILLS,LLC, a Delaware limited liability
Company
By: Concorde Development, L.P.,
a California limited partnership
By: Ferrari Investments,
a California corporation,
General Partner
By:
enm ge
anaging Member
5
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
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County of
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Del. '�,,,, � /� Name and Ttla of 00. e.'3ene Doe.rotary Pubk)
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signatureo on the instrument the person(a),or I
the entity upon behalf of which the person(ar
acted, executed the instrument.
WITNESS~ and official seal.
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Plac.Notary Seal Ahove lura. IIXery II
OPTIONAL
Though the information bebw is not required by law,it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached.09cutneilrit t
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Signer Is Representing:
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