05-1206_SJD PARTNERS, LTD._Subdivision Improvement Agr (3)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
Recorded in Official Records, Orange County
Tom Daly, Clerk -Recorder
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Title of Document: SUBDIVISION IMPROVEMENT AGREEMENT
TENTATIVE TRACT MAP 16748
AN
IV] I
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: TENTATIVE TRACT MAP 16748
THIS AGREEMENT is made this tom day of;2005, 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
"AMENDMENTTOIMPROVEMENTANDREIMBURSEMENTAGREEMENT
(ASSESSOR'S PARCELS #666 -301 -01,666 -301 -09,675 -361-01,675-361-
03,
666-301-01,666-301-09,675-361-01,675-361-
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 (15) 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 CUP 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:
Orteoa Hiohwav & 1-5 Southbound RamDs:
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 Building Permit, the applicant shall design and construct the 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 Califomia:
Improvements: Install a traffic signal and construct a separate
southbound right -turn lane.
1.3 Construction of Avenida California. Prior to issuance ofthel51 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, prior to 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 1515 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
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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.
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
(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
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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.
City shall release the Faithful Performance Bond upon Subdivider's written
request following acceptance by City of the Works of Improvement and
Subdivider's delivery to 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 by the 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,
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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'
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
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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
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.
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 statementwith
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.
SD
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.
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
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
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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.
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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
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. Changes 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.
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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, Injury or Damaqe:
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.
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 orwhich 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
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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
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.
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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.
21. 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.
22. 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.
23. 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)
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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.
24. 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.
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.
SD -14-
25. 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.
26. 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.
27. Assignment:
This agreement shall not be assignable by Subdivider without written consent
of City.
SD -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 by the
Subdivider herein named on the_L,,2_th day of December, 2005, 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.
SJD PARTNERS, LTD.,
A California Limited Partnership
By:
. 6A=
Name: &o_ �, � k
Its: Gkj Gv�_j
(Attach Notary Acknowledgement)
Attachment: Exhibit "A"
SD -16-
CITY OF SAN JUAN CAPISTRANO
, W'om'la
AW
01- 40
01 M -4r,
ATTEST:
Mardare0k. Monah, City Clerk
APPROVED AS TO FORM:
qe
Johnhaw, City Attorney
STATE OF CALIFORNIA
� ss.
COUNTY OF � '�.� )
r
On
Ahki d1whitel
�uL£ t". Ocf and
known to me
„1iC S- before me,
personally appeared
personally
sfaetary Evidence) to be the person(s4
whose name�s)r5)' (are) subscribed tot within instrument and acknowledged to me that
OIs(she) (they) executed the same in is7 (her) (their) authorized capacityoej, and that by
(her) (their) signature,61 on the instrument the person(s), or the entity upon behalf off
which the personWacted, executed the instrument.
WITNESS my hand and official seal.
NIKI WHITNEY
(SEAL) _ Commission # 1426145
-� Notary Public • California
Orange County
My Comm. Expires Jun 23, 2007
SD
Notary Public in a f r said State
SUBDIVISION IMPROVEMENT AGREEMENT - TRACT 16748
EXHIBIT "A"
WORKS OF IMPROVEMENT
Type of Improvements:
Grading
Erosion and Silt Control
Off-site Circulation Obligations
Street and Related appurtenances
Storm brain
Sanitary Sewer
Landscaping and Irrigation
Street Monuments
Water Improvements
SD
Estimated Construction Cost
Or Bond Amount
Processed through BLDG. Division
Processed through BLDG. Division
Bonds were processed separately
$ 161,000
$ 45,000
$ 51,000
$ 471,928
$ 20,000
$ 117,043
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 December 6, 2005 before me, Mitzi Ortiz, Deputy City Clerk, personally appeared David M.
Swerdlin, Mayor, personally known to me 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.
Capacity Claimed by Signers
Mayor
Title
Signers are Representing
City of San Juan Capistrano
Sp
WITNESS my hand and official seal.
OPTIONAL
Description of Attached Document
Subdivision Improvement Agreement —
Tentative Tract Map 16748 (SJD Partners)
Title or Type of Document
December 6, 2005
Date of Document
None
Signer(s) Other Than Named Above
BOND ISSUED IN THREE COUNTERPARTS
BOND NUMBER: SU5018420
PREMIUM: $4,719.00
SUBDIVISION FAITHFUL PERFORMANCE BOND
(GOVERNMENT CODE 66499.1)
WHEREAS, the City Council of the City of San Juan Capistrano, State of
California, and SJD PARTNERS, LTD., A CALIFORNIA LIMITED PARTNERSHIP
(hereafter designated as "Principal"), have entered into a Subdivision Agreement
whereby Principal agrees to install and complete certain designated public
improvements, which said Agreement dated .20
and made a part hereof; and
WHEREAS, said Principal is required, under the terms of said Agreement, to
furnish a bond for the faithful performance of said Agreement to guarantee certain work,
more particularly described as follows:
TRACT 16748 - LANDSCAPE
NOW, THEREFORE, we, the Principal and ARCH INSURANCE COMPANY
as Surety, are held firmly bound unto the
City of San Juan Capistrano hereafter called "Obligee"), in the sum of
FOUR HUNDRED SEVENTY-ONE THOUSAND NINE HUNDRED
TWENTY-EIGHT & NO/100--- Dollars, ($ 471,928.00-- )
lawful money of the United States, for the payment of which sum well and truly to be
made, we bind ourselves, our heirs, successors, executors and administrators, jointly
and severally, firmly by these presents.
NOW, THEREFORE, the condition of this obligation is such that if Principal shall
promptly and faithfully perform said improvements, then the obligation shall be null and
void; otherwise it shall remain in full force and effect. Surety waives any rights, if there
be any, to require that a demand be made first against the Principal in the event of
default.
BE IT FURTHER RESOLVED:
t. As a part of the obligation secured hereby, and in addition to the face
amount specified, there shall be included costs and reasonable expenses and fees,
including reasonable attorneys fees, incurred by City in successfully enforcing such
obligation, all to be taxed as costs and included in any judgment rendered.
2. Said Surety, for value received, hereby stipulates and agrees that no
change, extension of time, alteration, or modification of the contract documents or of the
work to be performed thereunder, shall in any way affect its obligations or this bond, and
it does hereby waive notice of any such change, extension of time, alteration, or
modification of the contract documents or of work to be performed thereunder.
Executed this 21ST day of NOVEMBER ,
20 05 ,at ORANGE
APPROVED
By
John R. Phaw, City Attomey
California.
PRINCIPAL
SJD PARTNERS, LTD.,
A CALIFORNIA LIMITED PARTNERSHIP
BY: SJD DEVELOPEMENT CORP.,
A CALIF =ON, AS GENERAL PARTNER
BY:
(NOTARIZATION AND SEAL)
SURETY
ARCH INSU�R�ANC�EI
BY: I U 11 7(A
(O rAR ARINAAND SEAL -FACT
CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT
State of California
County of Los Angeles
On November 28, 2005 before me, Susan E. Morales/Notary Public
NAME, TITLE OF OFFICER
personally appeared Brucey Cook
NAME OF SIGNER(S)
® Personally known to me - or - ❑
kd b"6
SUSAN E. MORALES
COMM41332202
m
Notary Public -California (P
L ,
LOS ANGELES COUNTY
My Comm. Exp. Dec 25, 2005
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.
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
❑ ATTORNEY-IN-FACT
❑ TRUSTEE(S)
❑ GUARDIAN/CONSERVATOR
® OTHER: General Counsel
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
SJD Partners, LTD
DESCRIPTION OF ATTACHED DOCUMENT
TITLE OR TYPE OF DOCUMENT
NUMBER OF PAGES
11/21/05
DATE OF DOCUMENT
CALIFvnnrA Al LWUnrvan Avnn
State of CALIFORNIA
County of ORANGE
On NOVEMBER 21, 2005 before me, CYNTHIA S. WOZNEY, NOTARY PUBLIC
DATE NNAE, TME OF WMR E.G.. WE DOE. NOTARY PUBLIC
personally appeared TODD M. ROHM
NAWR OF SIG CFXS) '
® personally known to me - OR-#xkpue� �Yd�Aiitsb
to be the person(s) whose name(s) istam
subscribed to the within instrument and ac-
knowledged to me that he/ske* eyC executed
the same in his/hadAbialt authorized
capacityWm), and that by his/ nix
signature(s) on the instrument the person(s),
or the entity upon behalf of which the
' personM acted, executed the instrument.
WITNESS my hand and official seal.
OPTIONAL
Though ft data below Is not required by law, It may prove valuable to persons relit on the doamTent and could prevent
fraudulent reattachment of Ihis form.
CAPACITY CLAIMED BY SIGNER
■
❑ PARTNER(S) ❑ LIMITED
❑ GENERAL
® ATTORNEY-IN-FACT
❑ TRUSTEE(S)
❑ GUARDWVCONSERVATOR
❑ OTHER-
SIGNER
THER
SIGNER IS REPRESENTING:
NM@of mooNn OPENmYrim
ARCH INSURANCE COMPANY
DESCRIPTION OF ATTACHED DOCUMENT
PERFORMANCE BOND
TITLE OR TYPE OF DOCUMENT
NUMBER OF PAGES
NOVEMBER 21, 2005
DATE OF DOCUMENT
SIGNER(S) OTHER THAN NAMED ABOVE
POWER OF ATTORNEY
Know All Men By These Presents:
That the Arch Insurance Company, a corporation organized and existing under the laws of the State of Missouri, having its
principal office in Kansas City, Missouri (hereinafter referred to as the "Company') does hereby appoint
Todd M. Rohm, Cathy S. Kennedy, Sejal P. Lange, D. J. Picard and Beata A. Sensi of Orange, CA (EACH)
its true and lawful Attomey(syIn-Fact, to make, execute, seal, and deliver from the date of issuance of this power for and
on its behalf as surety, and as its act and deed:
Any and all bonds and undertakings
EXCEPTION: NO AUTHORITY is granted to make, execute, seal and deliver bonds or undertakings that guarantee the
payment or collection of any promissory note, check, draft or letter of credit.
This authority does not permit the same obligation to be split Into two or more bonds in order to bring each such bond
within the dollar limit of authority as set forth herein.
The Company may revoke this appointment at any time.
The execution of such bonds and undertakings in pursuance of these presents. shall be as:binding upon the said
Company as fully and amply to all intents and purposes, as t the same had Doled dtily exeCUted and acknowledged by its
regularly elected officers at its principal office In Kansas City, Missouri.
This Power of Attorney is executed by authority of resolutions adopted by unanimous consent of the Board of Directors of
the Company on March 3, 2003, true and accurate copies of which are hereinafter set forth and are hereby certified to by
the undersigned Secretary as being in full force and effect:
"VOTED. That the Chairman of the Board, the President, or any Vice President, or their appointees designated in writing
and filed with the Secretary, or the Secretary shall have the power and authority to appoint agents and atomeys-in-fact,
and to aut1wrize them to execute on behalf of the Company, and attach the seal of the Company thereto, bonds and
undertakings, recognizances, contracts of indemnity and other writings, obligatory In the nature thereof, and any such
officers of the Company may appoint agents for acceptance of process."
This Power of Attorney is signed, sealed and certified by facsimile under and by authority of the following resolution
adopted by the unanimous. consent of the Board of Directors of the Company on March 3, 2003:
VOTED, That the signature of the Chairman of the Board, the President, or any Vice President, or their appointees
designated in writing and filed with the Secretary, and the signature of the Secretary, the seal of the Company, and
certifications by the Secretary, may be affixed by facsimile on any power of attorney or bond executed pursuant to the
resolution adopted by the Board of Directors. on March 3, 2003, and any such power so executed, sealed and certified
with respect to any bond or undertaking to which it is attached, shall continue to be valid and binding upon the Company.
00ML0013 00 03 03
Page 1 of 2 Printed in U.S.A.
In Testimony Whereof, the Company has caused this instrument to be signed and its corporate seal to be affixed by their
authorized officers, this 1st day of April '2003
Arch Insurance Company
Attested and Certified
ranee C
c c
Illsioud
oxrourr 34
ren f
Joseph S. 1-491, Corporate Secretary Thomas P. Luckstone, Vice President
STATE OF CONNECTICUT SS
COUNTY OF FAIRFIELD SS
I Melissa B. Gilligan, a Notary Public, do hereby certify that Thomas P. Luckstone and Joseph S. Labell personally known
to me to be the same persons whose names are respectively as Vice President and Corporate Secretary of the Arch
Insurance Company, a Corporation organized and existing under the laws of the State of Missouri, subscribed to the
foregoing instrument, appeared before me this day in person and severally acknowledged that they being thereunto duly
authorized signed, sealed with the corporate seal and delivered the said instrument as the free and voluntary act of said
corporation and as their own free and voluntary acts for the uses and purposes therein set forth.
OFFOk SM
MBJSS'' B. GILLKaA", "°tart' p&k �nn'L fi�
SWO(cmrad;drt Melissa B. Gfli an, No Public
Ca m is" Fedu 28'2005 1
My commission expires2 2605
CERTIFICATION
1, Joseph S. Labell. Corporate Secretary of the Arch Insurance Company, do hereby certify that the attached Power of
Attorney dated April 1, 2003 on behalf of the person(s) as listed above is a true and correct copy and that
the same has been in full force and effect since the date thereof and is In full force and effect on the date of this certificate;
and I do further certify that the said Thomas P. Luckstone, who executed the Power of Attorney as Vice President, was on
the date of execution of the attached Power of Attorney the duly elected Vice President of the Arch Insurance Company.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed the corporate seal of the Arch Insurance
Company on this 21ST day of NOVEMBER , 20 05 .
Joseph S eli, Corporate Secretary
This Power of Attorney limits the acts of those named therein to the bonds and undertakings specifically named therein
and they have no authority to bind the Company except in the manner and to the extent herein stated.
Home Office: Kansas City, MO
00ML0013 00 03 03
Page 2 of 2 Printed in U.S.A.
BOND ISSUED IN THREE COUNTERPARTS
BOND NUMBER: SU5018420
PREMIUM CHARGED IS INCLUDED
IN PERFORMANCE BOND
SUBDIVISION LABOR AND MATERIAL BOND
(GOVERNMENT CODE 66499.2)
WHEREAS, the City Council of the City of San Juan Capistrano, State of
California, and SJD PARTNERS, LTD., A CALIFORNIA LIMITED PARTNERSHIP
(hereafter designated as "Principal"), have entered into a Subdivision Agreement
whereby Principal agrees to install and complete certain designated public
improvements more particularly described as follows:
TRACT 16748 - LANDSCAPE
WHEREAS said Agreement dated —
Is hereby referred to made a part hereof; and
20
WHEREAS, said Principal is required, under the terms of said Agreement, to
furnish a bond for the faithful perfomlance of said Agreement;
NOW, THEREFORE, we, the Principal and ARCH INSURANCE COMPANY
as Surety, are held firmly bound unto the
FO HUNDRED SEVENTCYa ONE TnR6US�Dr� HMID -Clty" In the penal sum Of
TWENTY-EIGHT & N0/100--- Dollars, ($ 471,928.00---�
lawful money of the United States, for the payment of which sum well and truly to be
made, we bind ourselves, our heirs, successors, executors and administrators, jointly
and severally, firmly by these presents.
NOW, THEREFORE, the condition of this obligation is such that if the above
bound Principal, his or its heirs, executors, administrators, successors or assigns, shall
in all things stand to and abide by and well and truly keep and perform the covenants,
Page 1 of 3
conditions and provisions in the said agreement and any alteration thereof made as
therein provided, on his or their part, to be kept and performed at the time and in the
manner therein specified, and in all respects according to their true intent and meaning,
and shall indemnify and save harmless the City, its offers, agents and employees as
therein stipulated, then this obligation shall become null and void; otherwise it shall be
and remain in full force and effect.
Surety waives any rights, K there be any, to require that a demand be made first against
the Principal in the event of default.
BE IT FURTHER RESOLVED:
t. As a part of the obligation secured hereby, and in addition to the face
amount specked therefor, there shall be included costs and reasonable expenses and
fees, including reasonable attorney's fees, incurred by City in successfully enforcing
such obligation, all to be taxed as costs and included in any judgment rendered.
2. Said Surety hereby stipulates and agrees that no change, extension of
time, alteration, or modification of the terms of the agreement or of the work to be
performed thereunder, shall, in any way affect its obligations or this bond, and it does
hereby waive notice of any such change, extension of time, alteration or modification of
the terms of the agreement or of the work or to the specifications.
IN WITNESS WHEREOF, three (3) identical counterparts of this instrument, each
of which shall for all purposes be deemed an original thereof, have been duly executed
by the Principal and Surety herein named on the 21ST day of
NOVEMBER , 20 05 , the name and corporate seal of each corporate
party being hereto affixed and these presents duly signed by its undersigned
representatives pursuant to authority of its governing body.
Page 2 of 3
APPROVED AS TO FORM:
By Q �&u
John R. 8haw, City Attorney
NOTE: Please Attach
Acknowledgement and
Power of Attorney
PRINCIPAL
SJD PARTNERS, LTD.,
A CALIFORNIA LIMITED PARTNERSHIP
BY: SJD DEVELOPMENT CORP.,
A CALIn JIA C DRAT ON, AS GENERAL PARTNER
BY •
(NOTARIZATION AND SEAL)
SURETY
ARCH INSURANCE COMP
BY:
TODD M. -ROHM, ATTORNEY-IN-FACT
(NOTARIZATION AND SEAL)
Page 3 of 3
CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT
State of California
County of Los Angeles
On November 28, 2005 before me, Susan E. Morales/Notary Public
NAME, TITLE OF OFFICER
personally appeared Bruce V. Cook
NAME OF SIGNER(S)
® Personally known to me -or-0 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),
SUSAN E.MORALE5 and that by his/her/their signature(s) on the instrument the
i COMM.#1332202 n person(s), or the entity upon behalf of which the person(s)
U am NotaryPublic-California acted, executed the instrument.
s , LOS ANGELESCOUNT�
My Comm. Exp• Dec 25, 2005
WITNpESS my hand and�oofffiseal.
ss/a/�l.
J�1 i,n n m / � / . J/
02 _ eYt
(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
❑ ATTORNEY-IN-FACT
❑ TRUSTEE(S)
❑ GUARDIAN/CONSERVATOR
® OTHER: General Counsel
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
SJD Partners, LTD
DESCRIPTION OF ATTACHED DOCUMENT
Bond
TITLE OR TYPE OF DOCUMENT
NUMBER OF PAGES
11/21/05
DATE OF DOCUMENT
CALIFORNIA
State of _
County of
CALIFORNIA
ORANGE
On NOVEMBER 21, 2005 before me, CYNTHIA S. WOZNEY, NOTARY PUBLIC
DAZE NAME. IME OF OFROM-E.e.,'JANE DOE. NOTARY PUBLIC
personally appeared
TODD M. ROHM
NAME($$) OF SMEAR
® personally known to me - OR-#xlcpxatftaft Iiitttl'(tT�dfit4A
to be the person(st) whose name(s) is/am
subscribed to the within instrument and ac-
knowledged to me that he/sem executed
the same in his/�a)ftla�( authorized
ZNEY capacity({), and that i hi uthorized21:FM
59 M signature(s) on the instrument the person(o,
ifornia N
NTY or the entity upon behalf of which the
�ftZfMyComm. Exp. June 25,2M6 person(W acted, executed the instrument.
WITNESS my hand and official seal.
SMNA OF NOTARY
U I
OPTIONAL
Though the data below is not required by law, It may prove valuable to persons re"v on the document and could prevent
fraudulent reattadwnent of dils form.
CAPACITY CLAIMED BY SIGNER
❑ PARTNER(S) ❑ LIMITED
❑ GENERAL
® ATTORNEYdN-FACT
❑ TRUSTEE(S)
❑ GUARDWVOONSERVATOR
❑ OTHER:-
SIGNER
THER
SIGNER IS REPRESENTING:
Nw.tE of Paso"M on ENmrr"
ARCH INSURANCE COMPANY
DESCRIPTION OF ATTACHED DOCUMENT
LABOR AND MATERIAL BOND
TITLE OR TYPE OF DOCUMENT
3
NUMBER OF PAGES
NOVEMBER 21, 2005
DATE OF DOCUMENT
SIGNER(S) OTHER THAN NAMED ABOVE
POWER OF ATTORNEY
Know All Men By These Presents:
That the Arch Insurance Company, a corporation organized and existing under the laws of the State of Missouri, having its
principal office in Kansas City, Missouri (hereinafter referred to as the "Company') does hereby appoint
Todd M. Rohm, Cathy S. Kennedy, Sejal P. Lange, D. J. Picard and Beata A. Sensi of Orange, CA (EACH)
its true and lawful Attomey(s}in-Fact, to make, execute, seal, and deliver from the date of issuance of this power for and
on Its behalf as surety, and as its act and deed:
Any and all bonds and undertakings
EXCEPTION: NO AUTHORITY is granted to make, execute, seal and deliver bonds or undertakings that guarantee the
payment or collection of any promissory note, check, draft or letter of credit
This authority does not permit the same obligation to be split into two or more bonds in order to bring each such bond
within the dollar limit of authority as set forth herein.
The Company may revoke this appointment at any time.
The execution of such bonds and undertakings in pursuance of these presents shall be as: binding upon the said
Company as fully and amply to all intents and purposes, as if die same had"beeri duty executed and acknowledged by its
regularly elected officers at its principal office in Kansas City, Missouri.
This Power of Attorney is executed by authority of resolutions adopted by unanimous consent of the Board of Directors of
the Company on March 3, 2003, true and accurate copies of which are hereinafter set forth and are hereby certified to by
the undersigned Secretary as being in full force and effect:
"VOTED. That the Chairman of the Board, the President, or any Vice President, or their appointees designated in writing
and filed with the Secretary, or the Secretary shall have the power and authority to appoint agents and attorneysan-fact,.
and to authorize them to execute on behalf of the Company, and attach the seal of the Company thereto, bonds and
undertakings, recognlzances, contracts of indemnity and other writings, obligatory in the nature thereof, and any such
officers of the Company may appoint agents for acceptance of process.'
This Power of Attorney is signed, sealed and certified by facsimile under and by authority of the following resolution
adopted by the unanimous. consent of the Board of Directors of the Company on March 3, 2003:
VOTED, That the signature of the Chairman of the Board, the President, or any Vice President, or their appointees
designated in writing and filed with the Secretary, and the signature of the Secretary, the seal of the Company, and
certifications by the Secretary, may be affixed by facsimile on any power of attorney or bond executed pursuant to the
resolution adopted by the Board of Directors. on March 3, 2003, and any such power so executed, sealed and certified
with respect to any bond or undertaking to which it is attached, shall continue to be valid and binding upon the Company.
OOML0013 00 03 03
Page 1 of 2 Printed in U.S.A.
In Testimony Whereof, the Company has caused this instrument to be signed and its corporate seal to be affixed by their
authorized officers, this 1st day of April , 20 03
Arch Insurance Company
Attested and Certified
SVtance C
c �
mndwtr �q
,sn �
Ilstond
Joseph S. 1-641, Corporate Secretary
STATE OF CONNECTICUT SS
COUNTY OF FAIRFIELD SS
Thomas P. Luckstone, Vice President
I Melissa B. Gilligan, a Notary Public, do hereby certify that Thomas P. Luckslone and Joseph S. Labell personally known
to me to be the same persons whose names are respectively as Vice President and Corporate Secretary of the Arch
Insurance Company, a Corporation organized and existing under the laws of the State of Missouri, subscribed to the
foregoing instrument, appeared before me this day in person and severally acknowledged that they being thereunto duly
authorized signed, sealed with the corporate seal and delivered the said instrument as the free and voluntary act of said
corporation and as their own free and voluntary acts for the uses and purposes therein set forth.
OFFKXN-SEAL
MEUSSAS a. dcu
of Camat" �
FftM 28.2005 Melissa . Gilligan, Notary Public -
My commission expires 2-2"5
CERTIFICATION
I, Joseph S. Labell; Corporate Secretary of the Arch Insurance Company, do hereby certify that the attached Power of
Attorney dated April 1, 2003 on behalf of the person(s) as listed above Is a true and correct copy and that
the same has been in full force and effect since the date thereof and is In full force and effect on the date of this certificate;
and I do further certify that the said Thomas P. Luckstone, who executed the Power of Attorney as Vice President, was on
the date of execution of the attached Power of Attorney the duly elected Vice President of the Arch Insurance Company.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed the corporate seal of the Arch Insurance
Company on this 21ST day of NOVEMBER 20 05 .
Joseph S ell, Corporate Secretary
This Power of Attorney limits the acts of those named therein to the bonds and undertakings specifically named therein
and they have no authority to bind the Company except in the manner and to the extent herein stated.
Home Office: Kansas City, MO
00ML0013 00 03 03
Page 2 of 2 Printed in U.S.A.
�r
ARCH Insurance Company
NOTICE — DISCLOSURE OF TERRORISM PREMIUM
ARCH Surety
In accordance with the Terrorism Risk Insurance Act of 2002, we are providing this
disclosure notice for bonds on which Arch Insurance Company is the surety.
DISCLOSURE OF PREMIUM
The portion of the premium attributable to coverage for terrorist acts certified under the
Act is Zero Dollars ($0.00).
DISCLOSURE OF FEDERAL PARTICIPATION IN PAYMENT OF TERRORISM
LOSSES
The United States will pay ninety percent (90%) of covered terrorism losses exceeding
the applicable insurer deductible.
32400 PASEO ADEI ANTO
SAN JUAN CAPISTRANO, CA 92675
(949) 493-1171
(949) 493-1053 FAX
www.sanjuancapistrano.org
December 9, 2005
Clerk Recorder's Office
County of Orange
P.O. Box 238
Santa Ana, CA 92701
Re: Documents for Recording
SENT VIA CERTIFIED MAIL
The following documents are enclosed for recording:
MEMBERS OF THE CITY COUNCIL
SAM ALLEVATO
DIANE BATHGATE
WYATT HART
JOE SOTO
DAVID M. SWERDLIN
• Notice of Completion — Public Library Phase I: Site Work Capital Improvement
Project (Belaire-West)
• Easement for Street and Utility Purposes — James E. Rich
Easement for Sewer Purposes — James E. Rich
Subdivision Improvement Agreement —Tract 15867 (SJD Partners)
• Subdivision Improvement Agreement—Tract 14196 (SJD Partners)
• Subdivision Improvement Agreement — Tract 16748 (SJD Partners)
• Subdivision Improvement Agreement — Tract 16749 (SJD Partners)
When placed of record, please return the recorded document to this office.
Thank you for your assistance.
Sincerely,
���
Deputy City Clerk
Cc: Brian Perry, Senior Civil Engineer
Tony Foster, Engineering Assistant
Sam Shoucair, Senior Engineer
San Juan Capistrano: Preserving the Past to Enhance the Future
ij
y Primed on recYded paper
SUBDIVISION IMPROVEMENT AGREEMENT - TRACT 16748
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 Improvements
Estimated Construction Cost
Or Bond Amount
Processed through BLDG. Division
Processed through BLDG. Division
Bonds were processed separately
$ 161,000
$ 45,000
$ 51,000
$ 471,928
$ 20,000
$ 117,043
25. 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.
26. 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.
27. 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 by the
Subdivider herein named on the_th day of December, 20_ , 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.
SJD PARTNERS, LTD.,
A California Limited Partnership
CITY OF SAN JUAN CAPISTRANO
By: By:
Mayor
Name: 4
Its:
(Attach Notary Acknowledgement)
Attachment: Exhibit "A"
-16-
ATTEST:
Margaret R. Monahan, City Clerk
APPROVED AS TO FORM:
Ag' -
John IShaw, City Attorney
STATE OF CALIFORNIA
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WITNESS my hand and official seal.
NIKI WHITNEY
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SUBDIVISION IMPROVEMENT AGREEMENT - TRACT 14196
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 Improvements
Exhibit A
Estimated Construction Cost
Or Bond Amount
Processed through BLDG. Division
Processed through BLDG. Division
Bonds were processed separately
$ 296,000
$ 220,000
$ 103,000
$ 620,766
$ 26,500
$ 243,350
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: TENTATIVE TRACT MAP 16748
THIS AGREEMENT is made this day of 2005, 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
- 1 - ATTACHMENT 3
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 & I-5 Southbound Ramps:
Improvements: Construct an additional southbound right -turn
lane and re -stripe existing center lane to a
left/thru lane.
Fair share: 7.3%
-2-
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 Building Permit, the applicant shall design and construct the 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 thel 51 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, prior to 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 1515 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
-3-
La Novia Avenue & Valle Roadll-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.
2. Securit :
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
(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 i
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
-4-
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.
City shall release the Faithful Performance Bond upon Subdivider's written
request following acceptance by City of the Works of Improvement and
Subdivider's delivery to 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 meetthe
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,
-5-
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'
fees and litigation expenses reasonably incurred enforcing its
rights under the Security Instruments.
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
-6-
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
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 Aqreement:
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-
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
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 supplementais 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
-8-
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.
WOE
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 CitV 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
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. Changes 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.
-10-
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 Inlury 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.
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
- 11 -
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
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.
-12-
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
Subdividers contractors are not agents of the City, and that the contractors'
relations to City, if any, are those of independent contractors.
21. 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.
22. 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 necessarywork and Subdivider shall payto City
the actual cost of such repairs plus an amount equivalent to the current
general City overhead costs.
23. 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)
-13-
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.
24. 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.
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.
-14-
25. 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.
26. Filing of Improvement Plans:
Upon completion of the job and prior to final acceptance of the Works of
Improvement bythe City, the Subdividershall submitto 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.
27. 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 by the
Subdivider herein named on the_th day of December, 20_, 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.
SJD PARTNERS, LTD.,
A California Limited Partnership
By:
Name:
(Attach Notary Acknowledgement)
Attachment: Exhibit "A"
-16-
CITY OF SAN JUAN CAPISTRANO
Mayor
ATTEST:
Margaret R. Monahan, City Clerk
APPROVED AS TO FORM:
John haw, City Attorney
STATE OF CALIFORNIA
) ss.
COUNTY OF )
On AltPuan 7.e' -�-g , SDS- before me,
' 1 /'k I Goof 4,41 I personally appeared
2cee. U, OaOL and , personally
known to me ( ) to be the personW
whose nameV' I ' (are) subscribed to t within instrument and acknowledged to me that
(she) (they) executed the same in� (her) (their) authorized capacity&a -�f, and that by
I � (her) (their) sigpature,,(�s`j' on the instrument the person(s), or the entity upon behalf of
which the person acted, executed the instrument.
WITNESS my hand and official seal.
NIKI WHITNEY
(SEAL)_QMy
Commission # 1426145
Notary Public - CaliforniaOrange County
Comm. Expires Jun 23, 2007
Notary Public in a f r said State
SUBDIVISION IMPROVEMENT AGREEMENT - TRACT 16748
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 Improvements
Estimated Construction Cost
Or Bond Amount
Processed through BLDG. Division
Processed through BLDG. Division
Bonds were processed separately
$ 161,000
$ 45,000
$ 51,000
$ 471,928
$ 20,000
$ 117,043
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: TENTATIVE TRACT MAP 16749
THIS AGREEMENT is made this _day of 2005, 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
- 1 - ATTACHMENT 4
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
"AMENDMENT TOIMPROVEMENT ANDREIMBURSEMENTAGREEMENT
(ASSESSOR'S PARCELS #666 -301 -01,666 -301 -09,675 -361-01,675-361-
03,
666-301-01,666-301-09,675-361-01,675-361-
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 (15) 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 CUP 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 (1') 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 Hiphwav & 1-5 Southbound Ramps:
Improvements: Construct an additional southbound right -turn
lane and re -stripe existing center lane to a
left/thru lane.
Fair share: 7.3%
-2-
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
15f Building Permit, the applicant shall design and construct the 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 ofthel51 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, prior to 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 1515 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
-3-
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.
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
(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.
City shall release the Faithful Performance Bond upon Subdivider's written
request following acceptance by City of the Works of Improvement and
Subdivider's delivery to 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 Chapter2 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 meetthe
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,
-5-
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'
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 Maieure: 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
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-
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
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
'.Et�J
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 pians 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
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. Changes 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.
-10-
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 Injury 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, orabout the subdivision of
said land covered by this Agreement, or any part thereof.
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
-11-
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
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.
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.
-12-
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.
21. 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.
22. 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 necessarywork and Subdivider shall payto City
the actual cost of such repairs plus an amount equivalent to the current
general City overhead costs.
23. 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)
-13-
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.
24. 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.
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.
-14-
25. 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.
26. Filing of Improvement Plans:
Upon completion of the job and prior to final acceptance of the Works of
Improvement bythe City, the Subdividershall submitto 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.
27. 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_th day of December, 20_ , 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.
SJD PARTNERS, LTD., CITY OF SAN JUAN CAPISTRANO
A California Limited Partnership
By: o By:
(� Mayor
Name: C< v M o C
Its:
(Attach Notary Acknowledgement)
Attachment: Exhibit "A"
-16-
ATTEST:
Margaret R. Monahan, City Clerk
APPROVED AS TO FORM:
Joh Shaw, City Attorney
STATE OF CALIFORNIA )
�) ss.
COUNTY OF fJ/'� )
On , MvP,vvbe- X57 2�n�— before me,
/VlfLt (,wilt nzl td I personally appeared
-WDLL CEck and personally
known to me he baG48 ) to be the person
wh se namev s (are) subscribed to t within instrument and acknowledged to me that
e (she) (they) executed the same iriJ' (her) (their) authorized capacity�i , and that by
(her) (their) si ature,(sfon the instrument the person(s), or the entity upon behalf of
ich the oersonfal acted executed the instrument.
WITNESS my hand and official seal.
,G� L
Notary Public in an r said State
(SEAL) NIKI WHIiNEy
Commission # 1426145
' ro Notary Public - California
Orange County
, Comm. Expires
Jun 23, 2007
SUBDIVISION IMPROVEMENT AGREEMENT - TRACT 16749
EXHIBIT "A"
WORKS OF IMPROVEMENT
Type of Improvements:
Grading
Erosion and Silt Control
Off-site Circulation Obligations
Estimated Construction Cost
Or Bond Amount
Processed through BLDG. Division
Processed through BLDG. Division
Bonds were processed separately
The improvements for street, storm drain, sewer, water, street monuments and all
related appurtenances fronting this tract, belong to tract 15867
Landscaping and Irrigation
$ 342,692
Monumentation $ 14,500
HMENT 5
32400 PASEO ADEI ANTO
SAN JUAN CAPISTRANO, CA 92675
(949) 493-1171
(949) 493-1053 FAx
www.sat?lttancapistrano.org
December 9, 2005
NOTIFICATION OF ACTION BY THE
CITY COUNCIL OF SAN JUAN CAPISTRANO
MEMBERS OF THE CITY COUNCIL
SAM ALLEVATO
DIANE BATHGATE
WYATT HART
JOE SOTO
DAVID M. SWERDLIN
On December 6, 2005 the City Council of San Juan Capistrano met regarding:
"Consideration of Approval of Final Maps and Subdivision Improvement
Agreements for Tracts 14196, 15867, 16748 and 16749 Pacifica San Juan (SJD
Partners, Ltd.)" Item No. H2a.
The following action was taken at the meeting: Final Tract Maps No. 15687, 14196;
16748, and 16749 approved as they conform to the requirements set forth in the
Subdivision Map Act and the conditions of approval for Vesting Tentative Tract
Maps 14196 and 15609; the City Engineer and the City Clerk authorized to execute
the Final Maps; the Mayor and City Clerk authorized to execute the corresponding
Subdivision Improvement Agreements and accept the corresponding securities;
and the City Clerk directed to process recording of the maps and corresponding
Subdivision Improvement Agreements.
If you have any questions regarding this action, please contact Sam Shoucair, Senior
Engineer at 443-6355 for more detailed information.
Thank you,
Mitzi Ortiz
Deputy City Clerk
Cc: SJD Partners, Ltd.*; Hunsaker and Associates*; Nasser Abbaszadeh,
Engineering & Building Director; Sam Shoucair, Senior Engineer
San Juan Capistrano: Preserving the Past to Enhance the Future
r
32400 PASEQ ADELANTO
SAN JUAN CAPISTRANO, CA 92675
(949) 493-1171
(949) 493-1053 FAx
www.saTuancapsfrano.O g
MEMBERS OF THE CITY COUNCIL
NOTIFICATION OF MEE-Tnq r'UF POTENTIAL INTEREST
OF THE SAN JUAN CAPISTRANO CITY COUNCIL
SAM ALLEVATO
DIANE BATHGATE
WYATT HART
JOE SOTO
DAVID M. SWERDLIN
The City Council of San Juan Capistrano will meet at 7:00 p.m. on December 6, 2005 in
the City Council Chamber in City Hall, to consider: "Consideration of Approval of
Final Maps and Subdivision Improvement Agreements for Tracts 14196, 15867,
16748 and 16749 Pacifica San Juan (SJD Partners, Ltd.)" — Item No. H2a.
If you have specific thoughts or concerns regarding this item, you are encouraged to
participate in this decision making process. You can communicate with the City Council
through correspondence addressed to the Council and/or by attending the meeting and
speaking to the Council during the public meeting.
Correspondence related to this item must be received at the City Clerk's office by 5:00
p.m, on Monday, December 5, 2005 to allow time for the Council to consider its content.
If you would. like to speak at the meeting, please complete a yellow "Request to Speak"
form found inside the entrance to the Council Chamber. This form is turned in at the
staff table, just in front of the Council dais. You will be called to speak by the Mayor
when the item is considered.
You have received this notice at the request of the City staff member Sam Shoucair,
Senior Engineer. You may contact that staff member at (949) 443-6355 with any
questions.
The agenda, including agenda reports, is available to you on our web site:
www.san*uancapistrano.org. If you would like to subscribe to receive a notice when
agendas are posted to the web site, please make that request by sending an e-mail to;
council-aaendas(a)sanivancapistrano.org.
Meg Monahan, CMC
City Clerk
cc: SJD Partners, Ltd.*; Hunsaker and Associates*; Nasser Abbaszadeh,
Engineering & Building Director; Sam Shoucair, Senior Engineer
* Received staff report
San Juan Capistrano. Preserving the Past to Enhance the Future
12/6/2oo5
H 2a
AGENDA REPORT
TO: Dave Adams, City Manager �
FROM: Nasser Abbaszadeh, Director of Engineering & Building
SUBJECT: Consideration of Approval of Final Maps and Subdivision Improvement
Agreements for Tracts 14196, 15867, 16748 and 16749 Pacifica San Juan
(SJD PARTNERS, LTD.).
RECOMMENDATION
By motion;
1. Approve the Final Tract Maps No. 15687, 14196, 16748 and 16749 as they
conform to the requirements set forth in the Subdivision Map Act and the
conditions of approval for Vesting Tentative Tract Maps 14196 and 15609; and,
2. Authorize the City Engineer and the City Clerk to execute the Final Map.
3. Authorize the Mayor and City Clerk to execute the corresponding Subdivision
Improvement Agreements and accept the corresponding securities.
4. Direct the City Clerk to forward the Maps and corresponding Subdivision
Improvement Agreements to the County Recorder.
SITUATION
A. Summary and Recommendation
SJD PARTNERS, LTD.,(SJD) Developer / Subdivider of Tentative Tract Maps
No. 14196 and 15609, has submitted the first four Final Maps within the
boundaries of said tentative maps for City Council consideration and approval.
The first Final Tract Map, No. 15687, includes a 7.29 -acre parcel for a future
elementary school site and a 9.23 -acre parcel for a proposed multi -family site.
The other three Final Tract Maps, No. 14196, 16748 and 16749, are proposed to
provide 114 residential single family homes within gated communities, on
approximately 39.86 acres of land subdivisions.
A companion agenda item titled "Consideration of Interpretation of Foster
Canyon Comprehensive Development Plan (CDP 81-01) to Determine Lot
Requirements for Pacifica San Juan (SunCal)" from the Planning Director will first
Agenda Report
Paae 2
December 6, 2005
require discussion on lot counts, minimum lot areas and frontage dimensions.
The outcome of said companion agenda item on those issues may affect City
Council action on this item.
The four maps, as well as related grading and improvement plans, have been
reviewed by the Engineering Division and were found to be in substantial
conformance with the Tentative Tract Maps and the Subdivision Map Act. All
appropriate bonds and fees have been submitted and paid respectively to the
City. The developer has signed the four Subdivision Improvement Agreements
(Attachments 1, 2, 3 and 4). All applicable conditions of approval required by
Resolutions 92-6-16-4 and 03-09-16-06 (Attachments 5 and 6) for Tentative
Tract Maps 14196 and 15609 respectively have been met.
B. Background
On June 16, 1992, and September 16, 2003, the City Council adopted
Resolutions No. 92-6-16-4 and 03-09-16-06 conditionally approving SJD's
Vesting Tentative Tract Maps 14196 and 15609 respectively, which allowed for
the construction of a maximum of 416 residential dwelling units.
SJD wishes to divide these two tentative tracts (excluding the north R & D site)
into nine final tract maps. The first four final tract maps, recommended for
approval on tonight's agenda are as follows:
Tract 14196 44 residential lots on 20.76 acres
Tract 16748 41 residential lots on 10.93 acres
Tract 16749 29 residential lots on 8.17 acres
Tract 15687 2 parcels (One is for a proposed elementary school
and the other is for a proposed condominium site), a
section of Avenida California and the entire Via La
Jolla.
These maps, as well as all related improvement plans and studies, have been
reviewed by the City Engineer. The City Attorney and Planning Director have
reviewed the covenants, conditions and restrictions (CC&R's). The final items
listed below have been reviewed and found to be in compliance with the
requirements of the final tract maps:
1. Applicable Subdivision fees
2. Subdivision Improvement Agreements executed in duplicate
3. Faithful Performance and Labor and Material bonds for the following
improvements, which may be reduced or exonerated by the City Engineer
upon a successful completion:
a. Street Improvement
b. Storm Drain Improvement
Agenda Report December 6, 2005
Page 3
c. Sewer Improvements
d. Water Improvement
e. Landscape and Irrigation Improvements
f. Survey Monumentation (performance bond)
g. Off-site Circulation Improvement
The remaining final maps and related improvement plans and studies, currently
being reviewed by the City, will be processed separately.
COMMISSION/BOARD REVIEW AND RECOMMENDATIONS
The Tentative Maps have been previously reviewed by the Environmental Review
Board, Transportation Commission, and Planning Commission and approved by City
Council.
FINANCIAL CONSIDERATIONS
All applicable fees have been paid and the required sureties posted with the City.
PUBLIC NOTIFICATION
SJD PARTNERS, LTD. *
Hunsaker and Associates
* Agenda report included
Agenda Report
Paae 4
RECOMMENDATION
By motion;
December 6, 2005
1. Approve the Final Tract Maps No. 15687, 14196, 16748 and 16749 as they
conform to the requirements set forth in the Subdivision Map Act and the
conditions of approval for Vesting Tentative Tract Maps 14196 and 15609; and,
2. Authorize the City Engineer and the City Clerk to execute the Final Map.
3. Authorize the Mayor and City Clerk to execute the corresponding Subdivision
Improvement Agreements and accept the corresponding securities.
4. Direct the City Clerk to forward the Maps and corresponding Subdivision
Improvement Agreements to the County Recorder.
Respectfully submitted, Prepared by:
Nasser Abbaszadeh, P.E. oucair
Director of Engineering &Building enior Engineer
Attachments: 1.
Subdivision Improvement Agreement for final tract map 15687
2.
Subdivision Improvement Agreement for final tract map 14196
3.
Subdivision Improvement Agreement for final tract map 16748
4.
Subdivision Improvement Agreement for final tract map 16749
5.
Location Map
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: TENTATIVE TRACT MAP 15687
THIS AGREEMENT is made this _day of 2005, 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
- 1 - ATTACHMENT
dedication for street and other public purposes and the covenants herein contained, the
parties hereto mutually covenant and agree as follows:
1. General Requirements:
Subdivider shall comply with all the requirements specified in the
"AMENDMENT TO IMPROVEMENT AND REIMBURSEMENTAGREEMENT
(ASSESSOR'S PARCELS #666 -301 -01,666 -301 -09,675 -361-01,675-361-
03,
666-301-01,666-301-09,675-361-01,675-361-
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 CUP 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 & I-5 Southbound Ramps:
Improvements: Construct an additional southbound right -turn
lane and re -stripe existing center lane to a
left/thru lane.
Fair share: 7.3%
-2-
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 Building Permit, the applicant shall design and construct the 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 thel51st 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, prior to 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 1515 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
-3-
La Novia Avenue & Valle Roadll-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.
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
(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 i
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.
City shall release the Faithful Performance Bond upon Subdivider's written
request following acceptance by City of the Works of Improvement and
Subdivider's delivery to 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,
-5-
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'
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 Maieure: 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 right to 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
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-
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
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
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. Changes 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.
-10-
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.
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 ordeath 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
_11_
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 whensoeverthe 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
construed in any mannerto 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.
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.
-12-
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.
21. 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.
22. 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 payto City
the actual cost of such repairs plus an amount equivalent to the current
general City overhead costs.
23. 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)
-13-
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.
24. 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.
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.
-14-
25
26.
27
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 bythe 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_th day of December, 20_ , 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.
SJD PARTNERS, LTD.,
A California Limited Partnership
CITY OF SAN JUAN CAPISTRANO
By: By:
Mayor
Name:
Its: l
(Attach Notary Acknowledgement)
Attachment: Exhibit "A"
-16-
ATTEST:
Margaret R. Monahan, City Clerk
APPROVED AS TO FORM:
JohnjShaw, City Attorney
STATE OF CALIFORNIA
ss.
COUNTY OF )
On I�WGYYI°l
�l i'
lure 0 ex z and
known to me (
w qse named)is' (are) subscribed
Ale) (they) executed the same
)' (her) (their) s9i nature() on the
which the persoty(t) acted, executed
22"`�S` before me,
personally appeared
personally
sfactory--evidenee) to be the personal
to t within instrument and acknowledged to me that
in is) (her) (their) authorized capacitypesf, and that by
instrument the person(s), or the entity upon behalf of
the instrument.
WITNESS my hand and official seal.
NIKI WHITNEY
Commisslon # 1426145
(SEAL) z
Q1MV
Notary Public - California
Orange County
Comm. Expires Jun 23,2007
Ida
Notary Public in and (o? aid State
SUBDIVISION IMPROVEMENT AGREEMENT - TRACT 15687
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
Estimated Construction Cost
Or Bond Amount
Processed through BLDG. Division
Processed through BLDG. Division
Bonds were processed separately
$ 1,180,000
$ 529,000
$ 280,000
$ 157,551
$ 10,500
Water Improvements $ 644,506
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: TENTATIVE TRACT MAP 14196
THIS AGREEMENT is made this _day of 2005, 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 mannerand 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
- 1 - ATTACHMENT 2
dedication for street and other public purposes and the covenants herein contained, the
parties hereto mutually covenant and agree as follows:
1. 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 (15t) 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 Ramps:
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 Hiphway & 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 Building Permit, the applicant shall design and construct the 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 ofthe151stResidential
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, prior to 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 1515 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:
oad.Improvements: Construct a northbound left -turn lane
392
La Novia Avenue & Valle Roadll-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.
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
(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.
City shall release the Faithful Performance Bond upon Subdivider's written
request following acceptance by City of the Works of Improvement and
Subdivider's delivery to 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 Chapter2 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 by the HOA
will be determined by a separate agreement between the developer and the
HOA.
2.1 Form of Security Instruments. All Security Instruments shall meetthe
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,
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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'
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 Maieure: 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
a"
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 right to 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
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.
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91
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.
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
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.
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
M
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 forfurnishing 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 Improvementwill 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
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. Changes 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.
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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 Injury 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.
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
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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, howsoeverthe same may be caused and whensoeverthe 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
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.
G. 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.
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20.
21
f►�:
23.
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.
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.
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)
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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.
24. 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.
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.
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