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04-1109_FRIESS COMPANY BUILDERS, INC._Agreement for Deferral of ImprovementsRECORF)ING 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 Title of Document: Recorded in Official Records, Orange County Tom Daly, Clerk -Recorder IIIIIIIIIIIIIIIIIIIIIIIIillllllllliilllllllllilllllllllllllllllllllllllllllNO FEE 200400105176211:42am 11124104 117 92 Al2 7 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 This Space for Recorder's Use Only AGREEMENT FOR DEFERRAL OF IMPROVEMENTS Architectural Control (AC) 00-06r Serra Vista Office Building between THE CITY OF SAN JUAN CAPISTRANO a California municipal corporation and Friess Company Builders, Inc. Prepared on: November 9, 2004 Agreement for Deferral of Improvements M Agreement for Deferral of Improvements November p, 2004 I. PARTIES AND DATE. Friess Company Page 2 of 5 This Agreement for the Deferral of Improvements ("Agreement") is entered into as of this 8th day of November, 2004, by and between the City of San Juan Capistrano, a California municipal corporation ("City") and, Friess Company Builders, Inc. (a corporation) with its principal office located at 31658 Rancho Viejo Road, Suite B ("Developer"). City and Developer are hereinafter individually referred to as "Parry" and hereinafter collectively referred to as the "Parties." Il. RECITALS. 1. On October 24, 2000 the City of San Juan Capistrano Planning Commission adopted PC Resolution No. 00-10-24-1 approving Architectural Control (AC) 00-06, Zone Variance 00-05, and Rezone 00-03. This project approval became effective on November 7, 2000 and includes the property located at 31658 Rancho Viejo Road, Suite B comprised of .9 acres and precisely referred to as APN 649-361-07. 2. The application has been approved for construction of a 10,328 square foot commercial office building. 3. Developer has constructed certain improvements on the Project Site in accordance with the approval granted by PC Resolution 00-10-24-1, 4. Developer desires to obtain a Temporary Conditional Certificate of Occupancy for a 10,328 square foot Commercial Office Building on the Project Site in order to allow utility connections and occupancy of the building. 5. Developer desires to defer the installation of shrubs and groundcover along the parking lot edge at Camino Capistrano, and the installation of the Historic Depiction program, and City agrees to such deferment in accordance with the terms contained herein as agreed to by developer. III. EXPIRATION OF AGREEMENT. 1. EXPIRATION. This agreement shall expire upon the completion of all the project improvements required by Resolution PC 00-10-24-1 and issuance of a Final Certificate of Occupancy, or May 9, 2005, whichever occurs first. IV. TERMS. 1. AGREEMENT BINDING agreement is an instrument affecting t described in Section 11.1 above. Upon Exhibit 1, the terms of this Agreement owner of each parcel shall succeed to Agreement. he title to or possessior sale or division of the shall apply separately to the obligations imposed INTEREST. This of the real property property described in each parcel, and the on Developer by this Agreement for Deferral of Improvements November 9, 2004 Friess Company Page 3 of 5 2. INCOMPLETE IMPROVEMENTS TO BE DEFERED. Prior to issuance of a FINAL Certificate of Occupancy for the Project Site, but no later than May 9, 2005, whichever occurs first, the following improvements shown on the approved site plan and established by PC Resolution 00-10-24-1 shall be completed subject to approval of City: 2.1 Installation of shrubs and groundcover along the parking lot edge at Camino Capistrano which consists of 1 gallon (42) and 5 gallon (145) shrubs and groundcover from flats and a Historic Depiction Program. In the event said improvements have not been completed by the expiration date of this agreement, developer shall be in default of this agreement and shall be subject to code enforcement action to ensure completion of the improvements. 3. CASH DEPOSIT. The Cash Deposit for faithful performance, labor, and materials for improvements submitted by Developer to City in the amount of $7,275.00 shall be deemed by City as adequate surety to ensure completion of improvements as specified in this Agreement. Upon the completion of all improvements cited in Section 2 of this agreement by Developer, and on demand of "Developer" shall process and refund deposited monies provided herein. The refunded amount shall be equal to the original deposit amount less the cost of any City completed improvements. 4. INSURANCE. Insurance required herein shall be provided by Admitted Insurers in good standing with the State of California and having a minimum Best's Guide Rating of A- Class VII or better. 4.1 Comprehensive General Liability. Throughout the term of this Agreement, Developer shall maintain in full force and effect Comprehensive General Liability coverage in the following minimum amounts: $500,000 property damage; $500,000 injury to one person/any one occurrence/not limited to contractual period; $1,000,000 injury to more than one person/any one occurrence/not limited to contractual period. 4.2 Comprehensive Automobile Liability. Throughout the term of this Agreement, Developer shall maintain in full force and effect Comprehensive Automobile Liability coverage, including owned, hired and non -owned vehicles in the following minimum amounts: Agreement for Deferral of Improvements Friess Company November 9, 2004 Page 4 of 5 $500,000 property damage; $500,000 injury to one person/any one occurrence/not limited to contractual period; $1,000,000 injury to more than one personlany one occurrence/not limited to contractual period 4.3 Worker's Compensation. If Developer intends to employ employees to perform services under this Agreement, Developer shall obtain and maintain, during the term of this Agreement, Worker's Compensation Employer's Liability Insurance in the statutory amount as required by state law. 4.4 Proof of Insurance Requirements/Endorsement. Prior to beginning any work under this Agreement, Developer shall submit the insurance certificates, including the deductible or self -retention amount, and an additional insured endorsement to the Consultant's general liability and umbrella liability policies using ISO form CG 20 10 11 85 (in no event with an edition date later than 1990) to the City's General Counsel for certification that the insurance requirements of this Agreement have been satisfied. 4.5 Notice of Cancellation/Term!nation of Insurance. The above policy/policies shall not terminate, nor shall they be cancelled, nor the coverage reduced, until after thirty (30) days' written notice is given to City, except that ten (10) days' notice shall be given if there is a cancellation due to failure to pay a premium. Notice shall be provided, by hand -delivery or first-class mail (return receipt requested), to: Molly Bogh, Planning Director 32400 Paseo Adelanto San Juan Capistrano, CA 92675 5. INDEMNIFICATION. Developer agrees to protect, defend and hold harmless City, its elected and appointed officials and employees from any and all claims, liabilities, expenses or damages of any nature, including attorneys' fees, for injury or death of any person or damage to property or interference with use of property and for errors and omissions committed by Developer arising out of or in connection with the work, operation or activities of Developer, its agents, employees and subcontractors in carrying out its obligations under this Agreement. Agreement for Deferral of Improvements Friess Company November 9, 2004 Page 5 of 5 6. QUALITY OF WORK. All improvements as described in the Agreement shall be constructed and installed pursuant to City review and approval. The construction plans and specifications for the improvements shall be prepared in accordance with all applicable federal, state and local laws, ordinances, regulations and other requirements. In addition, the improvements shall be completed in accordance with all maps, plans and specifications on file with City, as well as all applicable federal, state and local laws, ordinances, regulations and other requirements. It is understood and agreed that all work and improvements done pursuant to this Agreement shall conform to the standards applicable at the time work is actually commenced. V. DEMAND TO PERFORM. 1. DEMAND TO PERFORM. Upon default of any obligation hereunder, and at any time after any such default, City may make written demand upon Developer or its surety, or both, to immediately remedy the default or complete the improvements. If the required work is not substantially commenced within ten (10) days of such demand, or if it is not thereafter diligently prosecuted to a completion acceptable to City within the time frame contained in the demand, City may then complete all remaining work, manage for the completion of all remaining work, and/or conduct such remedial activity as in its sole and absolute discretion it believes is required. All such work or remedial activity shall be at the sole and absolute expense and obligation of Developer and its surety, without the necessity of giving any further notice to Developer or surety. City's right to take such actions shall in no way be limited by the fact that Developer or its surety may have constructed any of the required improvements at the time of City's demand for performance. In the event City elects to complete or arrange for completion of the remaining work and improvements, City may require all work by Developer or its surety to cease in order to permit adequate coordination by City. In addition, City may revoke the Temporary Conditional Certificate of Occupancy for the model building, and/or withhold issuance of any future certificate of occupancy, until the default is remedied to the satisfaction of City. THE CITY OF SAN JUAN CAPISTRANO By: Planning Director Date: November 9, 2004 FRIESS COMP Y BUILDERS INC. By: Daniel L. Friess Date: November 9, 20 Approved as to form: rsta ATTEST: V"n mi-oetwai of t 4Monahan, John haw,City Attorney Marg ret .ity Clerk CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California ss. County of ©t'0.t, Q On ! f 1 ! b IDW before me, _SQ UA_+.Nt_ (:�� 14x6 Data Name and Tba 01 Olrber (e.g., -Jane Doe, Notary POW) L . personally appeared Iw- personally known to me proved to me on the basis of satisfactory evidence to be the 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(ies), and that by his/her/their 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.- p 2 4LA119_ r� �LA�O�c Signature of N01ary Pudic 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: Pf el t p_ V1\'Q '`A 40 r beA V -M( Of 1�or011t{0.1Qrit Document Date: It 8104 Number of Pages: 5 Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: ❑ Individual Top of momb Here ❑ Corporate Officer — Title(s): ❑ Partner — ❑Limited El General ❑ Attorney -in -Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: 01999 Natmal Notary Assoaabon • 9350 De Sob Ave., PO. Box 2002 • Chalswodh, CA 913132402 • w .maoonalmaaryorg Prod. N. 5907 Reorder: Call Toll -Free 180M7e-092Y PUBLIC AGENCY FORM OF ACKNOWLEDGEMENT State of California ) County of Orange ) ss. City of San Juan Capistrano ) (Gov't Code 40814 & Civil Code 1181) On October 6, 2004 before me, Margaret R. Monahan, City Clerk personally appeared MollyBogh, Planning Director, personally known to me to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacity, and that by their signatures on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument. Capacity Claimed by Signers Planning Director Title Signers are Representing WITNESS my hand and official seal. R. Monahan, City Clerk OPTIONAL Description of Attached Document Agreement for deferral of improvements AC 00-06 — Serra Vista Office Building Title or Type of Document November 9, 2004 City of San Juan Capistrano Date of Document