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:
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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
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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.
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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
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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
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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:
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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
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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]
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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
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