05-1104_WHISPERING HILLS LLC_Reclaimed Water Reservoir Site Agreement Recorded in Official Records, Orange County
RECORDED AT THE REQUEST OF Tom Daly, Clerk-Recorder
AND RETURN TO: !IIII!IIII!IIIIIIINIIillllllllllll!IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIINO FEE
2005000945595 08:06am 11/28/05
211 96 Al2 8
City of San Juan Capistrano 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
City Clerk's Department
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
[Exempt from Recording Fees/G.C. Sec. 6103]
RECLAIMED WATER RESERVOIR SITE AGREEMENT
Vesting Tentative Map No. 16634
(Assessor's Parcel No.174f2z3-¢5; County of Orange)
This Agreement is entered into this _Athq _day of MCM`IXh _2005, by and between
the City of San Juan Capistrano (hereinafter"City"), and Whispering Hills LLC (hereinafter
"Developer").
RECITALS:
Whereas, City approved Developer's tentative map application for subdivision tract
16634 on July 20, 2004, and
Whereas, condition 1.39 of Vesting Tentative Map No. 16634 requires developer to enter
into an agreement with City for the purpose of providing a non-domestic water reservoir site,
within the Tentative Map boundaries, for use by the City prior to final map approval, and
Whereas,this agreement is intended by the parties to implement condition 1.39,which
condition reads as follows:
"Non-Domestic Reservoir. Prior to approval of the first final map, the
applicant/subdivider shall enter into an agreement with the City to provide a site for a
non-domestic reservoir within the tentative map boundaries. The agreement may include
the following provisions:
a. Reimbursement andlor fee credit to the applicant/subdivider based on fair
market value of the reservoir site.
b. Site area and location.
C. Grading.
d. Mitigation of view impacts, such as partial or complete burial of the tank
berming, tank color, landscaping, etc.
e. Access roadleasement.
f Reservoir construction routes.
SD
The City shall be responsible for processing land use entitlements and environmental
approvals for the reservoir. The applicant/subdivider shall not be required to design or
build the reservoir. The applicant/subdivider shall agree to share with City all available
site data on proposed reservoir locations, such as environmental, soils, drainage, or
other studies previously completed for the subdivision, and to cooperate with the City to
facilitate the property acquisition process without undue delay. The applicant/subdivider
shall agree to coordinate construction of the reservoir with construction of the
subdivision improvements to the extentfeasible and reasonable. "
Now, Therefore, City and Developer hereby mutually agree as follows:
Section 1. Developer Sale of Propertyto City for Non-Domestic Water Reservoir
Site.
(a) Developer agrees to sell and City agrees to buy approximately one
(1) acre of real property within an area of property which shall be
selected by City from one of two locations identified on the site
plan attached as Exhibit 1 to this Agreement, and incorporated
herein by this reference. The final reservoir site shall, to the
greatest extent practicable, be located approximately entirely
within the land area of one of these two locations. The transfer of
the property to City is for the purpose of constructing a
City-owned one million gallon non-domestic water reservoir
facility and related improvements. The exact location and size of
the property to be acquired by City for this purpose will be
determined at such time as a preliminary design study including
geotechnical and environmental evaluation for the area is
completed by the City. All Resource Agency consultations,
approvals and/or permitting will be the obligation of City, as set
forth in Vesting Tentative Map condition 1.39.
(b) Developer agrees to dedicate at no cost to City and any affected
third party municipal utility-required temporary and permanent
easements for utility lines and access roadways serving the
reservoir site. Utility lines include, but shall not be limited to
feeder pipelines, stone drains, reservoir drains, and electrical and
telecommunications lines. Such temporary or permanent
easements shall provide construction access over the lettered lots
within tract 16634.
(c) Developer agrees to coordinate construction of the subdivision
improvements with the construction of the reservoir to the extent
reasonably feasible, including provision of access and construction
of staging areas by mutual consent of the parties.
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(d) City's purchase of the one acre land is contingent upon completing
to City's satisfaction certain studies establishing that the subject
property is geologically adequate for the project; that the site meets
other applicable environmental constraints; that all required
utilities for the proposed reservoir can be supplied to the site; and
that all City zoning and site access requirements are satisfied. City
shall be responsible for and shall prepare such studies. If the site is
deemed to be unsuitable, Developer and City agree to explore
other areas of open space within TTM 16634 for a suitable site.
(e) All environmental impacts, including but not limited to visual
impacts, will be addressed through future environmental and
design review, as approved by the City. Visual impact mitigation
may include but not be limited to partial or complete burial of the
tank, berming, tank color, landscaping, etc.
Section 2. Valuation of Reservoir Site to be Conveyed to City.
In establishing the monetary value of the Reservoir Site described in
section 1, City shall select a certified MAI appraiser of its choice to conduct the appraisal. The
parties acknowledge and agree that the subject property has been designated as open space land.
Accordingly the appraiser shall be instructed to assess the value of the land in relation to the
value of other open space lands in the neighboring vicinity.
If Developer and City cannot reach agreement on price based upon the
City's appraisal, then Developer and City shall mutually select a second certified MAI appraiser.
Developer shall bear the cost of this appraisal. If the parties are unable to reach agreement on
price based upon both appraisal figures, then the parties agree Developer shall immediately
convey title to the property upon receiving formal notice of impasse from City. The parties shall
then initiate an appropriate form of binding arbitration to establish price. Costs of the arbitration
shall be split evenly between the parties.
Developer agrees to share with City all available data on open space
property to be purchased, including but not limited to, environmental, sols, drainage, or other
studies previously completed for the subdivision.
Section 3. Agreement Runs With the Land.
This Agreement shall run with the land and be binding upon all of
Developer's successors and assigns in perpetuity.
Section 4. Defaults/Disputes and Attorney's Fees.
(a) Failure or delay by any party to perform any term or provision of
this Agreement constitutes a default under this Agreement. The
party who so fails or delays must immediately commence to cure,
correct, or remedy such failure or delay,and shall complete such
cure, correction or remedy with reasonable diligence. The injured
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party shall give written notice of default to the party in default,
specifying the default complained of by the injured party. If the
cure of default is not commenced and completed within 30 days
after service of default,the defaulting party shall be liable for
damages or other applicable relief caused by such default, and the
non-defaulting party may thereafter commence an action for
damages or specific performance of this Agreement, with respect
to such default.
(b) If either party incurs an expense, including actual costs of
collection,reasonable attorney's fees, expenses of discovery,
preparation for litigation, expert witness fees, and litigation
expenses and costs, in connection with any action or proceeding
instituted by either party by reason of any default or alleged default
of the other party hereunder, the party prevailing in such action or
proceeding shall be entitled to recover its reasonable expenses
from the other party.
(c) Any other dispute arising under this agreement shall be resolved by
first conducting a meet and confer process for a period of at least
30 days before commencement of any action brought by either
party. Any dispute which cannot be resolved or cured by a meet
and confer process shall then be subject to binding arbitration
under the auspices of JAMS/Bndispute or equivalent thereof.
Section 5. Force Majeure.
In the event the performance by either party of any of its obligations
hereunder is delayed by reason of the act or neglect of the other party, act of God, stormy or
inclement weather, strike, labor dispute,boycott, lockout or other like defensive action by such
party, inability to obtain labor or materials, governmental restrictions, riot, insurrection, war,
catastrophe, casualty, act of the public enemy, or any other cause,whether similar or dissimilar,
beyond the reasonable control of the party from whom such performance is due, the period for
the commencement or completion thereof shall be extended for a period equal to the period
during which performance is so delayed.
Section 6. Notices.
All notices, requests, demands, consents and other communication shall be
in writing, including telex and facsimile transmission and shall be deemed to have been duly
given on the date of service if served personally by telex or facsimile transmission or 48 hours
after mailing if mailed by first class mail as follows:
To: City of San Juan Capistrano
Attn: City Clerk
32400 Pasco Adetanto
San Juan Capistrano, CA 92675
4
To: Whispering Hills LLC
Attn: Dennis Gage
19700 Fairchild Rd., Suite 120
Irvine, CA 92612
Section 8. Entire Agreement.
This Agreement contains the entire agreement between the parties hereto
and supersedes any prior concurrent written or oral agreement between said parties concerning
the subject matter contained herein. There are no representations, agreements, arrangements or
undertakings, oral or written, between or among the parties hereto relating to the subject matter
contained in this Agreement which have not been fully expressed herein.
In Witness Whereof, the parties hereto have executed this Agreement on the date
above written.
City of San Juan Capistrano:
By:
ATTEST: Wya art, Mayor
Approved as to
Form:
JMargR. Monahan, City Clerk By: `- *L,
Jolih R. Shaw, City Attorney
WHISPERING HILLS,LLC, a Delaware limited liability
Company
By: Concorde Development, L.P.,
a California limited partnership
By: Ferrari Investments,
a California corporation,
General Partner
By, — a --
enm ge
anaging Member
5
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
— ss.
County of
On II�YIXX �( U'O , before me,
DaleOn,
r - Name antl Title of Officer g.,"Jane Doe,Notary Public')
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personally appeared _ Ait(AW
i Name(s)of Signer(s)
Y,0.ersonally known to me
71 proved to me on the basis of satisfactory
evidence
{ to be the persol) whose narrl is/;vfl"
It
F' . RIM subscribed to t e within instrument and
Conilill #1516965 acknowledged to me that he/sbeflhegexecuted
Hofty F rc•Camnlo the same in his/heritheira authorized
OmwCO1Moy ca acit y HeFAI--'-
MttConwn EnptesOctt P y(IAs)` and that b his/ncl,l rfct>-+
signature;4 on the instrument the person(sj, or
the entity upon behalf of which the person(a)-
acted, executed the instrument.
WITNESMand official seal.
Place Notary Seal Above Sok.re opNoor,P li 1
� OPTIONAL
cl Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached cul
Title or Type of Document: c& 5►k
Document Dater (`�,,,,, G, Number of Pages:
Signer(s) Other Than Named Above:Jbh l_S)h"-MK kbYVAA.1AQA1hY
1 Capacity(les) Claimed by S1 er
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Signer's Name:
= Individual rop onnomb Here
Ll Corporate Officer—Title(s):
Partner—Ll Limited Ll General .1
1 Attorney in Fact
1' , Trustee 1
I 1 Guardian or Conservator
1-1 Other:
Signer Is Representing: t
I
®1999 National Notary Association•9350 Oe Soto Ave.,P.O.Box 2402•Cbatsworlh,CA91013 2402-w .nauonaMmury rg Protl.N.5907 ReraCer',Call To14Free 1 Boa-575-6821
PUBLIC AGENCY FORM OF ACKNOWLEDGEMENT
State of California )
County of Orange ) ss.
City of San Juan Capistrano )
(Gov't Code 40814 & Civil Code 118 1)
On November 15, 2005, before me, Margaret R. Monahan, City Clerk,personally appeared Wyatt
Hart personally known tome 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.
(SEAL)
WITNESS my hand and official seal.
l�
M g t . Monahan, City Clerk
PTIONAL
Capacity Claimed by Signers Description of Attached Document
Mayor Water Reservoir Site Agreement (VTM
16634)
Title
Date: November 4, 2005
Signers are Representing
City of San Juan Capistrano
Potential Locations for Reclaimed Water Reservoir;
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