Loading...
21-1207_LENNAR HOMES OF CALIFORNIA INCORPORATED_Subdivision Improvement AgreementSUBDIVISION IMPROVEMENT AGREEMENT SUBJECT: TENTATIVE TRACT MAP 19063 THIS AGREEMENT is made this =day of teaJo1kC 2021 between the CITY OF SAN JUAN CAPISTRANO, a municipal corporation, State of California, hereinafter referred to as "City" and LENNAR HOMES OF CALIFORNIA INCORPORATED whose mailing address is 15131 Alton Parkway, Suite 365, Irvine California 92618, hereinafter referred to as "Subdivider": WHEREAS, a Development Agreement, No. 18-001, by and between the City and Subdivider was approved by the City Council on May 15, 2018 and was entered into on July 12, 2018 (the "Development Agreement"); and, WHEREAS, in connection with the Development Agreement, a tentative map application for the proposed development of a 169 single-family detached, residential home subdivision on 35 acres was conditionally approved by Resolution No. 20-07-07-01 and is currently valid and in force as Vesting Tentative Tract Map 19063 ("VTTM 19063"); and, WHEREAS, Subdivider is the owner of that certain parcel of land situated in the City of San Juan Capistrano, Orange County, generally described in VTTM 19063 (the "Property"), and Subdivider proposes to construct and develop both onsite and offsite improvements thereon as hereinafter set forth; and WHEREAS, due to construction timing constraints and to minimize the impacts to the adjacent school districts, the Subdivider entered into a Public Improvement Agreement (PIA) which outlined offsite public improvements required by the VTTM 19063 Conditions. The PIA was approved by City Council on June 1, 2021 to construct and install the offsite improvements prior to entering into a Subdivision Improvement Agreement (SIA) or obtaining approval of a Final Map; and WHEREAS, City desires to assure that proposed onsite improvements will be done in a good workmanlike manner and in accordance with the laws now in force and in 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 it is familiar with the pertinent regulations contained in the City's Municipal Code and in the Subdivision Map Act (Government Code Sections 66410 to 66500) (the "State Subdivision Map Act") and agrees to comply therewith; and WHEREAS, Subdivider acknowledges there exists certain easements for ingress/egress and water pipeline purposes, sanitary sewer purposes, and drainage purposes, on the Property. These existing easements contain active utility lines, all to the benefit of the City of San Juan Capistrano. The Developer proposes to install new utility improvements throughout the Property and outside the Property in public streets, to replace the current existing utility lines. The new utility improvements will be within proposed easements being dedicated to the City on Final Tract Map No. 19063, or within the existing public right-of-way. The existing and proposed utility easements are shown on Final Tract Map No. 19063, and the Developer agrees to retain the existing utility easements and not interfere with the operation of the existing utilities within said easements, until the proposed new utility improvements are in place and operational. The City acknowledges there may be some operational interruptions where proposed utilities connect to the existing utilities. Once replacement facilities within recorded easements are constructed and operational Subdivider shall work with Santa Margarita Water District to quit claim easements via separate instrument. 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 said Final Map and the acceptance of easements therein offered for dedication for street and other public purposes and the covenants herein contained, the parties hereto mutually covenant and agree as follows: General Recquirements: Subdivider shall comply with all the conditions of approval set forth in City Council Resolution No. 20-07-07-01 for Vesting Tentative Tract Map 19063 and shall, at its 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" attached hereto and incorporated herein by reference, to the satisfaction of the City Engineer. Such Works of Improvement shall include but not be limited to the placement of curb markers at all proposed street catch basin inlet structures in accordance with National Pollution Discharge Elimination System (NPDES) requirements, which requirements shall be implemented and complied with throughout the duration of construction. 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 as shown in Exhibit "A" and 100% of the estimated cost of the water and sewer 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 as shown in Exhibit "A" and 100% of the estimated cost of the water and sewer 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 in 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 Engineer 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. Notwithstanding the foregoing, City shall release the security to the extent required by the Subdivision Map Act. City Engineer 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 set forth in Section 2(13)(i), 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 SecurityI istruments. All Security Instruments shall meet the following minimum requirements and otherwise shall be in a form reasonably acceptable to the City Attorney: (i) Any insurance company acting as surety shall have a minimum rating of A -IX, as rated by the current edition of Best's Key Rating Guide published by A.M. Best's Company, Oldwick, New Jersey, 08858; any bank acting as surety shall have a minimum rating of AA, as rated by Moody's or Standard & Poor's; (ii) Payments under the Security Instruments shall be required to be made (and, with respect to bonds, litigation shall be required to be instituted and maintained) in the County of Orange, State of California; (iii) Each of the Security Instruments shall have a minimum term of one (1) year after the deadline for Subdivider's completing the Works of Improvement, in accordance with paragraph 3 herein; (iv) The Security Instruments shall reference Subdivider's obligations under this Agreement, shall be irrevocable, and shall include as an additional obligation secured the responsibility to compensate City for all of the City's attorneys' fees and litigation expenses reasonably incurred enforcing its rights under the Security Instruments. 2.2 Security Devices In -Lieu of Bonds. Subject to City's approval, which may be withheld in the City's sole discretion, Subdivider may elect to substitute an irrevocable letter of credit or certificate of deposit to secure all obligations under this Agreement and as otherwise specified to be secured by the Security Instruments. Such irrevocable letter of credit or certificate of deposit shall be provided on City approved forms. 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 the term of this Agreement, including any approved extension, as specified in Section 19 of this Agreement. 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 its surety as herein provided. The City may require Subdivider, or its surety, to pay the City in advance, sufficient monies to cover the City's cost in completing construction of said Works of Improvement. The City agrees that any bond proceeds paid to City that are not expended to complete the Works of Improvement shall be refunded to Subdivider or the surety, as applicable. 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 and without limiting the generality of the foregoing, adverse weather conditions, fire, flood, earthquakes, acts of God, epidemics, pandemics, moratoria, war, insurrection, embargos, 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: Subject to the foregoing paragraph, 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. 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 Section 3 of this Agreement 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 A reement: This Agreement shall not become effective unless and until the Final 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 any applicable 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 - Comoliance with Law: Subdivider shall, at Subdivider's expense, obtain all necessary permits and licenses for the construction of the required Works of Improvement, give all necessary notices and pay all fees and taxes required by law. 7. Definitions and Ownership of Improvements: The term "improvements" means: grading, paving, curbs and gutters, pathways, storm drains, sanitary sewers, domestic and non-domestic water, utilities, such as electric, telephone and cable TV, conduits, gas lines, drainage facilities, traffic controls, landscaping and irrigation, street lights, and all other required facilities as shown in detail upon plans, profiles and specifications which have been prepared or are now in final preparation by engineers acting for Subdivider subject to approval by the City Engineer. No work on said improvements shall be commenced until plans and profiles therefor 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 Engineer, it is understood and agreed that any approval by the City Engineer 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 Engineer as being consistent with the City Code and Standards. Subdivider warrants that its plans and specifications conform at 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 vesting tentative map for the Property. Subdivider shall also perform all work and furnish all materials necessary, in the reasonable 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 reasonable 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 or any portion of 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, per the most current standards as outlined by the County of Orange Surveyor, and subject to the approval of the City Engineer and affected property owner. 12. Inspection by City: 0 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, and 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(s). 14. Changes in the Work: The City Engineer, without invalidating this Agreement and without notification to any of the sureties referenced in Section 2 of this Agreement, may order extra work or may make changes by altering or deleting any portion of the Works of Improvement as specified herein or as reasonably 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(s) 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(s) shall be binding on City unless approved in writing by the City Engineer. 15. No Warranty by City: The plans and specifications and related documents for the Works of Improvement have been prepared by or on behalf of Subdivider or its consultants or contractors, and City makes no representation or warranty, express or implied, to Subdivider or to any other person regarding the adequacy of the plans or specifications or related documents. 16. Uability for Performance, Injury or Dama e: 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, except to the extent resulting from the negligence or willful misconduct of the City, its offers, agents, or employees. 17. Insurance, Indemnifications and Release: Prior to the commencement of any work pursuant to this contract, Subdivider (if performing work itself) or 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. a. Commercial General Liability 10 The Subdivider shall take out and maintain, during the performance of all work under this Agreement, in amounts not less than specified herein, Commercial General Liability Insurance, in a form and with insurance companies rated A- VII or better by AM Best. Coverage for Commercial General Liability insurance shall be at least as broad as the following: 1) Insurance Services Office Commercial General Liability coverage (Occurrence Form CG 00 01) or exact equivalent. iii. Commercial General Liability Insurance must include coverage for the following: (1) Bodily Injury and Property Damage (2) Personal Injury/Advertising Injury (3) Premises/Operations Liability (4) Products/Completed Operations Liability (5) Aggregate Limits that Apply per Project (6) Explosion, Collapse and Underground (UCX) exclusion deleted (7) Contractual Liability with respect to this Contract (8) Broad Form Property Damage (9) Independent Subdivider/Consultants Coverage iv. The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; (3) products/completed operations liability; or (4) contain any other exclusion contrary to the Agreement. v The policy shall give City, its officials, officers, employees, agents and City designated volunteers additional insured status using ISO endorsement forms CG 20 10 10 01 and 20 3710 01, or endorsements providing the exact same coverage. vi The general liability program may utilize either deductibles or provide coverage excess of a self-insured retention, subject to reasonable approval by the City, and provided that such deductibles shall not apply to the City as an additional insured. b. Automobile Liabi i At all times during the performance of the work under this Agreement, the Subdivider shall maintain Automobile Liability Insurance for bodily injury and property damage including coverage for owned, non -owned and hired vehicles, in a form and with insurance companies rated A- VII or better by AM Best. ii Coverage for automobile liability insurance shall be at least as broad as Insurance Services Office Form Number CA 00 01 covering automobile liability (Coverage Symbol 1, any auto). iii The policy shall give City, its officials, officers, employees, agents and City designated volunteers additional insured status. 11 iv Subject to reasonable approval by the City, the automobile liability program may utilize deductibles, provided that such deductibles shall not apply to the City as an additional insured, but not a self-insured retention. c. Workers' Compensation/Employer's Liability i Subdivider certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement. ii To the extent Subdivider has employees at any time during the term of this Agreement, at all times during the performance of the work under this Agreement, the Subdivider shall maintain full compensation insurance for all persons employed directly by him/her to carry out the work contemplated under this Agreement, all in accordance with the "Workers' Compensation and Insurance Act," Division IV of the Labor Code of the State of California and any acts amendatory thereof, and Employer's Liability Coverage in amounts indicated herein. Subdivider shall require all subconsultants/subcontractors to obtain and maintain, for the period required by this Agreement, workers' compensation coverage of the same type and limits as specified in this section. d. Pollution Liability At all times during the performance of the work under this Agreement the Subdivider shall maintain Pollution Liability insurance appropriate to its profession, in a form and with insurance companies reasonably acceptable to the City and in an amount indicated herein and shall be written on a policy form coverage specifically designed to protect against any pollution generated by the Subdivider and it's Contractors. e. Minimum Policy Limits Required i. The following insurance limits are required for the Agreement: Commercial General Liability $7,500,000 per occurrence and in the aggregate. $10,000,000 aggregate limit for products/completed operations. Automobile Liability $5,000,000 combined single limit Employer's Liability $1,000,000 per accident or disease Worker's Compensation Statutory Limit Pollution Liability $5,000,000 per occurrence 12 Professional Liability $1,000,000 per claim and aggregate (errors and omissions) ii Within the exception of the Professional Liability policy, defense costs shall be payable in addition to the limits. iii Requirements of specific coverage or limits contained in this section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. Any available coverage shall be provided to the parties required to be named as Additional Insured pursuant to this Agreement. f. Evidence Required Prior to execution of the Agreement, the Subdivider shall file with the City evidence of insurance from an insurer or insurers certifying to the coverage of all insurance required herein. Such evidence shall include original copies of the ISO CG 00 01 (or insurer's equivalent) signed by the insurer's representative and Certificate of Insurance (Acord Form 25-S or equivalent), together with required endorsements. All evidence of insurance shall be signed by a properly authorized officer, agent, or qualified representative of the insurer and shall certify the names of the insured, any additional insureds, where appropriate, the type and amount of the insurance, the location and operations to which the insurance applies, and the expiration date of such insurance. g. Policy Provisions Required i Subdivider shall provide the City at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Subdivider shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Subdivider shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to the City at least ten (10) days prior to the effective date of cancellation or expiration. ii The Commercial General Liability Policy and Automobile Policy shall each contain a provision stating that Subdivider's policy is primary insurance and that any insurance, self-insurance or other coverage maintained by the City or any named insureds shall not be called upon to contribute to any loss. iii The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Subdivider shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Subdivider shall purchase a one (1) year extended reporting IN period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims -made policy with a retroactive date subsequent to the effective date of this Agreement. iv. Worker's compensation insurance coverages shall contain or be endorsed to waiver of subrogation in favor of the City, its officials, officers, employees, agents, or shall specifically allow Subdivider or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Subdivider hereby waives its own right of recovery against City and shall require similar written express waivers and insurance clauses from each of its subconsultants/subcontractor. v The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relieve the Subdivider from liability in excess of such coverage, nor shall it limit the Subdivider's indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law. h. Qualifying Insurers i. All policies required shall be issued by acceptable insurance companies, as reasonably determined by the City, which satisfy the following minimum requirements - 1 ) equirements:1) Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VII and admitted to transact in the business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law. Additional Insurance Provisions i. The foregoing requirements as to the types and limits of insurance coverage to be maintained by Subdivider, and any approval of said insurance by the City, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Subdivider pursuant to this Agreement, including but not limited to, the provisions concerning indemnification. ii. If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has 14 the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Subdivider or City will withhold amounts sufficient to pay premium from Subdivider payments. In the alternative, City may cancel this Agreement. iii The City requires evidence that the Subdivider and their Subcontractors have insurance policies in effect throughout the duration of the Project, and the City is named as an additional insured. iv Neither the City nor any of its officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement. Subcontractor Insurance Requirements. Subdivider shall not allow any subcontractors or subconsultants to commence work on any subcontract until they have provided evidence satisfactory to the City that they have secured all insurance required under this section. Policies of commercial general liability insurance provided by such subcontractors or subconsultants shall be endorsed to name the City as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by Subdivider, City may approve different scopes or minimum limits of insurance for particular subcontractors or subconsultants. 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 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, including liability arising out of sudden, accidental, and gradual pollution events, howsoever the same may be caused and whensoever the same may appear, resulting directly or indirectly from the performance or nonperformance of any or all work to be done in and upon the subject property and the premises adjacent thereto pursuant to this Agreement, and also from any and all injuries to and deaths of persons and injuries to property or other interests and all claims, demands, costs, loss, damage, and liability, to the extent the same may be caused directly or indirectly by the Subdivider, the Subdivider's agents, employees, and subcontractors, while engaged in the performance of said work. 15 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 completion of the Works of Improvement and dedication thereof -and 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. Subdividers _Expenses: The Subdivider shall pay these additional expenses: a. The Subdivider shall cause to be made and/or pay for soil tests made by a reputable Geotechnical consultant/firm to determine stability, gradation, bearing, and resistance value of soils within the subdivision from which to determine the nature and design of appropriate improvements. The Subdivider shall also pay for all compaction and related tests necessary to determine that all fill work and the utility trench backfill has been satisfactorily placed. b. All service (including plan check and inspection), impact and connection fees as established by City shall be paid for each lot in the subdivision in accordance with the City Code. C. All actual costs for, design, plan check, development process and inspection incurred by the City in evaluating any proposed or agreed upon change in work. In no event shall Subdivider be entitled to additional inspections or final inspection and acceptance of any of the Works of Improvement until all City fees and charges have been fully paid, including, without limitation, charges for applicable penalties and additional required inspections. d. Subdivider shall compensate the City for all actual costs reasonably incurred in having its authorized representatives make the usual and customary engineering services beyond the specified "Time of Completion" referenced in Section 3 of this Agreement. Said actual costs include: inspection of Works of Improvement, engineer design review, plan check and project development process. Subdivider Ml 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 Works of Improvement 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 Council, 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 one (1) year after completion and written acceptance thereof by the City Engineer and by the Homeowner's Association respectively. 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 of the Agreement. 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. 17 24 25. 26 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. 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: 18 Upon completion and prior to final acceptance of the Works of Improvement by the City, the Subdivider shall submit to the City Engineer for review and approval, one Mylar (4 mils) set of "record" drawings as well as digital (pdf and AutoCAD) 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, provided that this Agreement may be assigned by Subdivider to any successor in interest to the Property upon written notice to the City within ten (10) days of such assignment, provided that Subdivider shall not by virtue of such assignment be relieved of its obligations hereunder. 28. Good Faith Improver, Waiver: Developer hereby agrees that if the Agreement is terminated for any reason other than Developer's termination pursuant to a default of City, Developer waives, to the maximum legal extent, any rights it may have under Code of Civil Procedure Sections 871.1 through 871.5, inclusive, and Code of Civil Procedure Section 741 and all other state or federal statutes or judicial decisions of similar effect. With regard only to the matters being released herein, Developer waives the provisions of Section 1542 of the California Civil Code, and any other similar statute, rule or case law. Developer has read and understands Section 1542, and has consulted with counsel regarding its terms. Section 1542 provides as fol lows: A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have mater' lly affected his or her settlement with the debtoror released party. A (Initials) 29. Phase I Residential Buildina Permits. Notwithstanding anything to the contrary herein, the City hereby authorizes the City Building Department to issue to Subdivider building permits for residential units in Phase 1 of the subdivision to be developed within the Property, prior to recordation of the Final Map, provided that (a) all other conditions to the issuance of such building permits has been met, including 19 but not limited to the approval of the Production Precise Grading Plans and grading pad certification for all pads within Phase 1 of the subdivision; (b) Subdivider shall not enter into any binding purchase agreements for the sale of such Phase I residential units with the homebuying public until such Final Map is recorded; and (c) no certificates of occupancy shall be issued for such residential units until the Final Map is recorded. Subdivider hereby agrees to indemnify, defend, and hold harmless the City against any claims to the extent arising from the issuance of such building permits prior to recordation of the Final Map. [Signatures on following page] 20 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 23 day of 2021, the name and corporate seal of each corporate party being hereto affixed and these presents duly signed by its undersigned representative(s) pursuant to authority of its governing body. DEVELOPER Its: (Attach Notary Acknowledgement) ATTEST: Attachment: Exhibit "A" 21 CITY OF SAN JUAN CAPISTRANO ,C By: Benamin Siegel, dity Manager APPROVED AS TO FORM: Jeffrelfi C. Ballinger, City Attomey BEST BEST & KRIEGER LLP A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) On g r 1 , 2021, before me, _ Brittne_y Antonielli , Notary Public, personally appeared Brett Hamara , who proved to me on the basis of satisfactory evidence 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. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature: (Seal) L47_x BRI'iTM�EY AFk !!LyNotary Public • California Orange County CommissionNo86 z2025Ay COMM. Expires SUBDIVISION IMPROVEMENT AGREEMENT - TRACT 19063 EXHIBIT "A" WORKS OF IMPROVEMENT Improvement Type of Improvements Estimated Construction Cost or Bond Amount Schedule I.D. Exhibit 1 Grading, Drainage, Retaining Walls, Processed through the Erosion and Sediment Control Build in Division Processed Under Separate Off -Site Public Street Improvements for Alipaz Street (SIP20-006) Bond and Public Improvement A reement _ _ Off -Site Public Street Improvements for Processed Under Separate Del Obispo Street (SIP20-007) Bond and Public On -Site Streets SIP 20-004 Improvement Agree ent $2,740,293.00 Exhibit 2 Exhibit 3 On -Site Storm Drain SIP20-004 $4,666,622.00 Exhibit 4 Monumentation $40,000.00 Exhibit 5 Landscaping and Irri ation $1,792,358.50 Processed through Utilities Exhibit J Sanitary Sewer Division Under Separate Agreement and Bond $9,239,273.50 _ Total Works of Improvement Each estimate shall include a line item for inspection, material testing, administration, survey, and construction management. Prepared by - Engineer of Record l `A SUBDIVISION IMPROVEMENT AGREEMENT - TRACT 19063 EXHIBIT "A" cont. SUMMARY Performance Street (100%) $2,740,293.00 Storm Drain (100%) $4,666,622.00 Landscape (100%) $1,792,358.50 Monumentation (100%) $40,000.00 Total Performance $9,239,273.50 Labor & Material Street (100%) $2,740,293.00 Storm Drain (100%) $4,666,622.00 Landscape (100%) $1,792,358.50 Monumentation (100%) $40,000.00 Total - Labor & Material $9,239,273.50 TOTAL SECURITY 23