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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 IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIINO FEE 200400007828101:59pm 02102/04 200 91 Al2 11 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 i This Space for Recorder's Use Only 1� 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 Gr 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