06-1017_SJD PARTNERS, LTD._Subdivision Improvement Agr (2)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
Title of Document:
Recorded in official Records, orange County
Tom Daly, Clerk -Recorder
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SUBDIVISION IMPROVEMENT AGREEMENT
FINAL TRACT MAP 16747
Recording Requested by and
When Recorded Mail To:
City of San Juan Capistrano
Attention: City Clerk
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Margaret R. Monahan, City Clerk
City of San Juan Capistrano
SUBDIVISION IMPROVEMENT AGREEMENT
SUBJECT: FINAL TRACT MAP 16747
THIS AGREEMENT is made this 1]& -ay of(2006, between the
CITY OF SAN JUAN CAPISTRANO, a municipal corporation, State of California,
hereinafter referred to as "City" and SJD PARTNERS, LTD., a California limited
partnership, whose mailing address is 1250 Corona Pointe Court, Suite 210,
Corona CA 92879, hereinafter referred to as "Subdivider":
WHEREAS, the tentative map application was conditionally approved by Resolution
No 92-6-16-4; 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 Vested Tentative Tract
Maps 14196 and 15609 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
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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 requirements specified in the
"AMENDMENTTO IMPROVEMENTAND REIMBURSEMENT AGREEMENT
(ASSESSOR'S PARCELS #666-301-01, 666 -301-09,675-361-01,675-361-
03,
66-301-09,675-361-01,675-361-
03, 675-361-04, 675-361-05, 675-081-03, 675-081-04, 675-081-10, and 675-
081-14)" dated November 15, 2005, the WATER FACILITIES AGREEMENT
— SUNCAL PROPERTIES, dated September 2, 2003 and its subsequent
amendment dated March 16, 2004, the conditions of approval set fort in City
Council Resolution No. 92-6-16-4 (for Tentative Tract Map 14196) and all
applicable conditions of approval set fort in City Council Resolution No. 03-
09-16-06 (for Tentative Tract Map 15609) 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 work 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 and the
construction of all required off-site infra -structure and circulation
improvements to the satisfaction of the City Engineer.
1.1 Fair -Share Circulation Improvement Participation. Prior to the issuance of
the first (1S) building permit, other than model homes, the applicant shall
financially contribute for the project's fair share traffic generation for the
existing La Novia Avenue Improvement, from Valle Road to 2500 feet east,
as well as any improvements not included in the Capistrano Circulation Fee
Program (CCFP), as identified in the approved Environmental Impact Report
(EIR) traffic impact analysis. This financial participation shall be in addition
to paying CCFP fees. The applicant's financial participation shall include
right-of-way acquisition, design, and construction including, but not limited to,
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.
Additionally, prior to the issuance of the first (1s) building permit, other than
model homes, the applicant shall financially contribute for the project's fair
share traffic generation on the following improvements. The final cost
estimate shall be reviewed and determined by the City Engineer:
Ortega Highway & 1-5 Southbound Ramns:
Improvements: Construct an additional southbound right -turn
lane and re -stripe existing center lane to a
left/thru lane.
Fair share: 7.3%
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Ortega Highway & 1-5 Northbound Ramps:
Improvements: Construct westbound free right turn lane
Fair share: 0.8%
1.2 Off -Site Circulation Improvement Construction. Prior to the issuance of the
15 Certificate of Occupancy, the applicant shall design and constructthe off-
site improvement listed below to its ultimate standard configurations in
accordance with the City's Master Plan of Streets and Highways and to the
satisfaction the City Engineer. All easements, right-of-way acquisitions,
dedications and permits needed from any agency to accommodate said
improvement shall be obtained by the applicant, with City's assistance. Any
deferral in the timing of this condition, due to unforeseen delays, shall be
subject to review and approval by the City Engineer.
Camino Las Ramblas & Via California:
Improvements: Install a traffic signal and construct a separate
southbound right -turn lane.
1.3 Construction of Avenida California. Prior to issuance of thel51 st Residential
Building Permit within Vesting Tentative Tract Maps 14196 and/or 15609,
the applicant shall complete, to the satisfaction of the City Engineer, the
construction of Avenida California Street, from the extension of Via
California, all the way to its intersection with Valle Road. For any phases of
development prior to issuance of the 1515 Residential Building Permit any
section of Avenida California Street leading to a developed subdivision
phase, within Tentative Tract Map 15609 and/or 14196, shall be completed
from Via California to that phase, priorto issuance of the first building permit
of such phase. Any deviation shall be subject to review and approval by the
City Engineer.
1.4 Off -Site Circulation Improvement Construction. Prior to the completion of
Avenida California, or the issuance of the 151 s Building Permit, whichever
comes first, the applicant shall design and construct the off-site
improvements listed below to their ultimate standard configurations in
accordance with the City's Master Plan of Streets and Highways and to the
satisfaction the City Engineer. All easements, right-of-way acquisitions,
dedications and permits needed from any agency to accommodate said
improvements listed below shall be obtained by the applicant, with City's
assistance. Any deferral in the timing of this condition, due to unforeseen
delays caused by the City or outside regulatory agencies, shall be subject to
review and approval by the City Engineer.
Valle Road & San Juan Creek Road:
Improvements: Construct a northbound left -turn lane
Isle
La Novia Avenue & Valle Road/1-5 Northbound Ramps:
Improvements: Realign La Novia Avenue and the 1-5 NB Ramps
and install a traffic signal.
Valle Road from San Juan Creek Road to La Novia Avenue:
Improvements: Widen to a two-lane divided roadway.
1.5 Jerwel Parcel/Storm Drain & Avenida California (a)Valle Rd. Improvements.
Final Map 16747 presently depicts a public easement for a storm drain
line and a section of a dedicated public Road (Avenida California @ Valle
Road) to be located on the AP # 666-301-11 ("the Property").
However, City holds only an easement to the Property for road widening
purposes. Subdivider therefore must acquire an additional real property right
(i.e, fee interest) to authorize both the construction and maintenance
of these public facilities on this Property. City agrees to cooperate with
Subdivider by lending its power of eminent domain, if necessary, to acquire
Fee title to the Property.
Subdivider agrees to pay for all costs associated with the eminent domain
process, if necessary, as follows: 1) Subdivider shall pay for costs incurred
in retaining an appraiser to appraise the value of the subject real property
interest; 2) after City has adopted a resolution of necessity, the Subdivider
shall then assume the obligation of retaining legal counsel to act as special
counsel for the City in filing and completing an eminent domain action to
acquire and pay for a fee title interest to the subject property. Subdivider
shall be solely responsible for paying all legal fees and costs, and the award
of the court for the total value of the property.
Subdivider agrees and understands that City will not permit Subdivider's
construction of the storm drain line or construction of the segment of
Avendia California until Subdivider has either: i) acquired fee from the
Property Owner on a voluntary basis, or, ii) acquired at least an eminent
domain order of immediate possession ("OIP") based upon a complaint in
eminent domain requesting acquisition of fee title.
2. Security:
A. Subdivider shall, at all times beginning with the execution of this
agreement, guarantee Subdivider's performance of this agreement by
providing City with 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:
(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 (110% for water related improvements); and
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(ii) A Labor and Materials Bond to secure payment to any
contractor, subcontractor, persons renting equipment or
furnishing 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 (110% for water related
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 h
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
("HOA).
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 Instruments required by this agreement are hereby incorporated
in this agreement by reference.
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City shall release the Faithful Performance Bond upon Subdivider's written
request following acceptance by City of the Works of Improvement and
Subdivider's deliveryto City of the Warranty Bond for Works of Improvement.
City 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 bythe HOA
will be determined by a separate agreement between the developer and the
HOA.
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
responsibility to compensate City for all of the City's attorneys'
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fees and litigation expenses reasonably incurred enforcing its
rights under the Security Instruments.
3. Time of Completion:
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 Acreage: 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 rightto 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
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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.
6. 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.
7. 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.
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
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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 plans 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.
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 City:
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
contractor of any obligations to fulfill this Agreement as herein provided;
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.
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
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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. Chanoes 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.
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.
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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 whensoever the 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.
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
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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:
a. 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.
b. 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.
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.
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22.
23.
24.
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.
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.
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.
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.
NCE
25
I•-:
27
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.
Notice of Completion:
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.
Filing of Improvement Plans:
Upon completion of the job and prior to final acceptance of the Works of
Improvement by the City, the Subdivider shall submit to 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.
Assignment:
This agreement shall not be assignable by Subdivider without written consent
of City.
-15-
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 bythe
Subdivider herein named on the I S th day ofSepj.m heg- 2006, the name and
corporate seal of each corporate party being hereto affixffix db and these presents duly signed
by its undersigned representative(s) pursuant to authority of its governing body.
SJD PARTNERS, LTD.,
A California Limited Partnership
By:
Name: Bruce V. CooK
Its: General Counsel
(Attach Notary Acknowledgement)
Attachment: Exhibit A
-16-
CITY OF SAN JUAN CAPISTRANO
By:Lc i
David M. Sw rdlin, Mayor
APPROVED AS TO FORM:
Joh w, City Attorney
CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT
State of California
County of OranPe
On September 15, 2006 before me, Susan E. Morales/IVotary Public
NAME, TITLE OF OFFICER
personally appeared
Bruce Y. Cook
NAME OF SIGNER(S)
® Personally known to me - or - ❑ 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
- - - -+su�N t:. MoaAt�s person(s), or the entity upon behalf of which the person(s)
7cn 1632049 acted, executed the instrument.
Notary PUNIC - Callomla
Orange county
@Mymnco.F.>pMoec2s,2oo9 WITN/EpSS my hand and official seal.
(SIGNATURE OF NOTARY)
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER
❑ INDIVIDUAL/OWNER
❑ CORPORATE OFFICER
TITLE(S)
❑ PARTNER(S) ❑ LIMITED
❑ GENERAL
❑ MANAGING MEMBER
® GENERAL COUNSEL
❑ OTHER:
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
SJD Partners, Ltd.
DESCRIPTION OF ATTACHED DOCUMENT
Subdivision Agreement - Tract #16747
TITLE OR TYPE OF DOCUMENT
16
NUMBER OF PAGES
09/15/06
DATE OF DOCUMENT
SUBDIVISION IMPROVEMENT AGREEMENT - TRACT 16747
EXHIBIT "A"
WORKS OF IMPROVEMENT
Type of Improvements:
Grading
Erosion and Silt Control
Off-site Circulation Obligations
Street and Related appurtenances
Storm Drain
Sanitary Sewer
Landscaping and Irrigation
Street Monuments
Water and related appurtenances
Exhibit A
Estimated Construction Cost
Or Bond Amount
Processed through BLDG. Division
Processed through BLDG. Division
Bonds were processed separately
$ 1,639,486
$ 1,537,973
$434,156
$ 923,526
$ 18,500
$763,671
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 17, 2006 before me, Maria Morris, Deputy City Clerk, personally appeared
David M. Swerdlin personally known to me to be the person whose name is subscribed
to the within instrument and acknowledged to me that he/she/they 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(s) acted, executed the instrument.
(SEAL)
OPTIONAL
Capacity Claimed by Signer
Municipal Corporate Officer
Mayor
Title
Signer is Representing
City of San Juan Capistrano
Description of Attached
Document
Subdivision Improvement Agreement
— Final Tract Map 16747 (SJD
Partners, LTD)
Date: October 17, 2006