04-0120_EICHLER, GLENN AND KATHY, RICK AND DIANN_Financial AgreementRECORDING 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
Recorded in Official Records, County of Orange
Tom Daly, Clerk -Recorder
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Title of Document: Financial agreement for right-of-way acquisition in exchange for
construction of public improvements at 31810 and 31812 San Juan Creek Road, Glenn
Eichler (Assessor Parcel Number: 666-048-12 & 13
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FINANCIAL AGREEMENT FOR RIGHT-OF-WAY ACQUISITION
IN EXCHANGE FOR CONSTRUCTION OF PUBLIC IMPROVEMENTS
AT 31810 AND 31812 SAN JUAN CREEK ROAD, GLENN EICHLER,
(ASSESSOR PARCEL NUMBER: 666-048-12 & 13)
THIS FINANCIAL AGREEMENT ("Agreement") is made and entered into this 20th
day of January, 2004, by and between the City of San Juan Capistrano, a Municipal
Corporation, hereinafter referred to as the "City" and Glenn and Kathy Eichler, and Rick
and Diann Eichler, whose mailing address is 30448 Rancho Viejo Road, Suite 110, San
Juan Capistrano, California 92675, herein referred to as "Developer".
WITNESSETH
WHEREAS, in connection with development of its land, Developer has applied for
and was granted a Lot Line Adjustment to accommodate two single family detached
residential homes located on 31810 and 31812 San Juan Creek Road respectively; and,
WHEREAS, the City has an interest in facilitating the street widening and
appurtenances on San Juan Creek Road along the frontage of the subject properties,
specifically referred to as Assessor Parcel Numbers 666-048-12 and 13 respectively; and,
WHEREAS, the Developer has an interest in reducing the width of an existing
public drainage/equestrian trail easement on Developer's south westerly side of property
and has agreed to design and construct, at Developer's cost, certain modifications to an
existing storm drain channel located within said easement; and,
WHEREAS, the City requires that the design and construction of said modification
to the existing storm drain channel within the drainage/equestrian trail easement would
continue to provide, at minimum, a 12 foot wide equestrian trail/maintenance access; and,
WHEREAS, the Developer has agreed to dedicate to the City the necessary public
right-of-way for ultimate street width and utilities purposes and to construct, to the
satisfaction of the City Engineer, street improvements and all related appurtenances along
said properties' frontages, based upon City payment of $109,050, of which $73,750.00 are
for right-of-way acquisition and $35,300 for partial financial participation towards the
relocation of an existing drainage culvert which would be interfering with the proposed
widened street, and also based upon City waving the following fees:
Any in-house plan check and inspection fees for the street widening and drainage
improvement. (Third party review of Soils Reports, Drainage Improvement Plans
and Hydrology Hydraulic Studies shall be subject to fee payment);
2. City processing fees for abandonment of section of drainage easement;
3. City processing fees for acceptance of public right -of way for San Juan Creek Road.
WHEREAS, the $73,750.00, described above, represents the City approved
appraisal amount for the subject right-of-way acquisition, paid to the City by Citibank
(Formerly Glendale Federal Savings and Loan) in order to meet the conditions of approval
set forth in City Council Resolution 86-6-17-4, for the development of Tentative Tract Map
12633 by the Subdivider, Dividend Development Company; and,
WHEREAS, City desires to assure that said proposed street widening and channel
improvements will be done per City approved plans and in a good workmanlike manner
and in accordance with the codes now in force and effect in the City of San Juan
Capistrano, California, the terms and conditions of which are incorporated herein by
reference.
NOW, THEREFORE, in consideration of the premises and promises hereinafter
contained, City and Developer agree as follows:
SECTION 1. PAYMENT AGREEMENT.
Upon receiving the following items from the Developer, the City shall then process, for
payment to the Developer, the amount of $73,750.00 for the right-of-way dedication along
the street frontages of Assessor Parcel Numbers 666-048-12 and 666-048-13.
The proper right-of-way dedication documentation
2. City approved Street & Storm Drain Improvement Plans, as specified in
Section 2 below
3. Sureties for all the works of improvement, as specified in Section 3 below.
SECTION 2. DEVELOPER'S OBLIGATIONS.
Developer shall dedicate to the City, for ultimate street width (to back of
proposed sidewalk along San Juan Creek Road) and utility purposes, the
necessary public right-of-way along Developer properties' frontages to
accommodate, to the satisfaction of the City Engineer, a secondary Arterial
Highway.
Developer 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 construction of street widening
improvements, sidewalk, curb and gutter, relocation of an inlet culvert
structure and all related appurtenances. The Encroachment Permit and
Street Improvement Plans, which further defines the improvements in Exhibit
"A", are on file in the office of the City Engineer, and all documents
referenced in Exhibit "A" are incorporated herein by reference.
SECTION 3. DEVELOPER'S SECURITY.
Developer shall, at all times beginning with the execution of this agreement,
guarantee Developer's performance of this agreement by providing City with the following
security instruments (the "Security Instruments"), on forms approved by City for the
purposes and in the amounts as follows:
(1) 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
(ii) A Labor and Materials Bond to secure payment to any contractor,
subcontractor, persons renting equipment orfurnishing 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;
In order to guarantee and warranty the Works of Improvement and in addition to the
security instruments referenced in Paragraph 3 above, Developer shall provide to City the
following Security Instruments:
(1) Prior to the City's final acceptance of the Works of Improvement, Developer
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.
SECTION 4. INDEMNITY AND HOLD HARMLESS.
Developer shall indemnify, defend and hold harmless the City of San Juan
Capistrano and their respective officers, officials, employees and agents from and against
any and all liability, loss, damage, expense, costs (including without limitation, attorneys'
fees and costs, and fees of litigation) of every nature arising out of or in connection with
Developer's use of this Agreement and Developer's performance of work hereunder or its
failure to comply with any of its obligations contained in this Agreement.
SECTION 5. TERM.
This Agreement shall continue in full force and effect until all work is complete and
accepted by the City Engineer. Upon completion and acceptance of work, this Agreement
shall terminate and all obligations of the City and the Developer will be considered met
provided the City or the Developer is not in default hereunder or under the terms of the
Note.
SECTION 6. ATTORNEY'S FEES.
In the event of any litigation between the parties arising out of or related to this
Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and costs,
in addition to whatever other relief such party may be granted.
SECTION 7. FORCE MAJEURE.
None of the parties hereto shall be deemed to be in default if performance of the
obligations required by this Agreement is delayed or becomes impossible because of any
act of God, earthquake, fire, strike, sickness, accident, civil commotion, epidemic, act of
government, its agencies or officers, or any legitimate cause beyond the control of the
parties.
SECTION 8. NOTICES.
All notices required to be delivered under this Agreement or by law shall be
delivered by one of the following means: (i) by personal delivery, (ii) by a reputable
document delivery service that provides a receipt showing date and time of delivery, (iii)
by United States mail, prepaid, certified, return receipt requested, or (iv) by facsimile
transmission, if a fax number is listed below, and so long as the original of the notice is
concurrently delivered by one of the other acceptable methods. Notices shall be addressed
18
as follows:
If to City: City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Attn: City Clerk
Telephone Number: (714) 493-1171
Fax Number: (714) 493-1053
If to Developer: Glenn and Rick Eichler
30448 Rancho Viejo Road, Suite 110
San Juan Capistrano, CA 92675
Telephone Number: (949) 248-5459
Fax Number: (949) 248-0889
Notices delivered by personal delivery, reputable document delivery service, or
facsimile transmission in accordance with the terms of this Section shall be effective upon
receipt. Notices delivered by mail shall be effective at the earlier of (i) actual receipt, or (ii)
if not deliverable, the date of first attempted delivery. The parties hereto may from time to
time designate such other address or addresses for receipt of notices by giving notice in
accordance with the terms of this Section.
SECTION 9. NO ASSIGNMENT.
Developer shall not assign or transfer this Agreement to any person, firm, or entity
without the prior written consent of City, which consent City may give or withhold in its sole
and absolute discretion.
SECTION 10. ENTIRE AGREEMENT.
This Agreement contains the entire agreement and understanding of the parties
concerning the subject matter herein. This Agreement constitutes the entire understanding
and agreement of the parties, integrates all of the terms and conditions mentioned herein
or incidental hereto, and supersedes all negotiations or previous agreements between the
parties with respect to all or any part of the subject matter hereof.
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
Developer herein named on the day of , 2004, 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.
DEVELOPER
By:
Tqbn Eichler,
By:
Kathy Pchler,
By:, Zit' <'r'L�--- -
Rick Eichler,
By:
Diann Eichler,
(Attach Notary Acknowledgment)
Attachment: Exhibit "A"
C.
CITY OF SAN JUAN CAPISTRANO
0
CITY CLERK
APPROVED AS TO FORM
TYATTORNEY
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
ss.
County of
On 11 c, hJ &M before me, QN-- c . L,�,M
Date Name and Title of Officer (e.g., 'Jane Doe. Notill7
personally appeared Yf L c'b
❑ pgrsonally known to me
proved to me on the basis of satisfactory
evidence
to be the person(s) whose name(s) ire
subscribed to the within instrument and
acknowledged to me that b zft/they executed
the same in bis/he l7their authorized
capacity(ies), and that by ,bis/b9frtheir
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.
Place Notary Seal Above Signature of Notary Public
OPTIONAL
Though the information below 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 Document
Title or Type of Document:
Document Date:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer's Name:
❑ Individual
C Corporate Officer—Title(s):
,_1 Partner — C Limited ❑ General
❑ Attorney in Fact
❑ Trustee
C Guardian or Conservator
❑ Other:
Signer Is Representing:
Number of Pages:
RIGHT THUMBPRINT
OF SIGNER
01999 National Nolary Association • 9350 De Soto Ave., GO. lox 2002 • CGatswodh. CA 913132002 • w ,nat,onalmt org Prod No. 5907 Reorder. Call TollFree1-Boo-8]6682]
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
ss.
County of �����i
On tS before me, NA4o,,`_r
Date Name and Ttle of Officer (e.g.,'Jane Doe. Notary Public'
personally appeared
4�_=_
,� onally known to me
�J proved to me on the basis of satisfactory
evidence
to be the person(s) whose name(s) ire
subscribed to the within instrument and
acknowledged to me thatlhetatfe/they executed
the same in Itis/htsfrtheir authorized
capacity(ies), and that by t W er/their
signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s)
acted, executed the instrument.
WIT'//r I�/ESS my hand and official seal.
Place Notary Seal Above Signature of Notary Public
OPTIONAL
Though the information below 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 Document
Title or Type of Document:
Document Date:
Signer(s) Other Than Named Above:
Capacity(les) Claimed by Signer
Signer's Name:
❑ Individual
❑
L
iJ
f�
El
Corporate Officer —
Partner —❑ Limited
Attorney in Fact
Title(s): _
❑ General
Trustee
Guardian or Conservator
Other:
Signer Is Representing:
Number of Pages:
RIGHT THUMBPRINT
OF SIGNER
®1999 Na anal Naar, AsaxAalion • 9350 CA Sao Ave., P.C. flax 2602-Cbatavwah, CA 91313,24C2- wwwra xv,akvva,o Nvd, Na. 590T PeoMet-. Gall Tall -Ree 1-99 877%27
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 January 20, 2004, before me, Margaret R. Monahan, City Clerk, personally appeared Joe Soto,
Mayor , personally known tome to be the person whose name is subscribed 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.
(SEAL)
WITNESS my hand and official seal.
it
R. Monahan, City Clerk
OPTIONAL
Capacity Claimed by Signers Description of Attached Document
Financial Agreement for right of way
Mayor acquisition.....(31810 & 31812 San Juan
Creek Road, Eichler— APN 666-048-12 & 13
Title Title or Type of Document
Signers are Representing
City of San Juan Capistrano January 20, 2004
Date of Document
PUBLIC IMPROVEMENT AGREEMENT
ASSOCIATED WITH THE DEVELOPMENT OF
ASSESSOR PARCEL NUMBER: 666-048-12 $ 13
AT 31810 AND 31812 SAN JUAN CREEK ROAD
Type of Improvements:
EXHIBIT "A"
WORKS OF IMPROVEMENT
Estimated Construction Cost
Or Bond Amount
Street and Appurtenant Improvements $25,800
Storm Drain Channel Improvements
and Trail / Maintenance Road $46,600