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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. 2 (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 3 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') � � O 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 t I 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; APN 124 223 45 F \\" jPotential Re1.,., •2 pPen me Development N DIE Es..esemen New Easemenn t y, E �'VTTM Pa .I.\ I - Parcels S j D�� Feet I EXHIBIT 1