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04-1207_NDA DEVELOPMENT LLC_AgreementAGREEMENT FOR CONSTRUCTION OF WATER FACILITIES THIS AGREEMENT, dated this December 7, 2004, by and between NDA DEVLOPMENT, LLC, a California Limited Company, hereinafter called "Developer', and CITY SAN JUAN CAPISTRANO, hereinafter called "City". WITNESSETH: WHEREAS, Developer wishes to obtain water services from the CITY OF SAN JUAN CAPISTRANO, hereinafter called "CITY" for property known as TRACT 15924, Dana Point, CA, and City requires the construction and dedication of water facilities by Developer as a condition of providing said water services; and WHEREAS, Developer has prepared and submitted to City a set of improvement plans for said water facilities, and WHEREAS, City desires to insure that said water facilities are installed in accordance with City's water standards and specifications. NOW, THEREFORE, it is hereby agreed by and between Developer and City that: I. CONSTRUCTION AND COMPLETION 1. Developer shall, at its sole cost and expense, construct and install within twenty-four (24) months from the effective date of this Agreement, all of the water facilities shown and delineated upon the improvement plans entitled "SEWER AND WATER IMPROVMENT PLANS FOR TRACT NO. 15924" as approved by the Water Engineering Manager of the City and on file with said City and by reference made a part of this Agreement as though fully set forth herein. If construction has not started within the terms of this agreement, the developer may request a permit extension in accordance with section 300.13.3 and section 300.13.3.1 with discretionary by the City. 2. Developer shall construct said water facilities in accordance with the Agreement for Construction of Water Facilities NDA Development, LLC December 7, 2004 approved plans, City's water standard specifications and under City's inspection, and shall indemnify and hold harmless all officers, employees and agents of the City from and against all claims, damages, losses and expenses, including attomeys' fees, arising out of or resulting from the performance of the work, and caused in whole or in part by any negligent act or omission of Developer, Contractor, or any Subcontractor, anyone directly or indirectly employed by any of them, or anyone for whose acts any of them may be liable, regardless of whether or not it is caused in part by a party indemnified hereunder. 3. If Developer has not completed the work within twenty-four (24) months from the effective date of this Agreement, City has the right to call the security for faithful performance and complete the work. Any work performed after said twenty-four (24) months, whether by Developer, City, or others, shall be in accordance with City's standard specifications in effect as of the time the work is performed. 4. The security shall remain in effect for a minimum of 365 consecutive calendar days after all the water facilities have been completed and accepted by City, and shall continue in effect until exonerated in writing by City. It shall be incumbent upon the developer to renew the security prior to its expiration. ll. USE OF WATER 1. Developer hereby expressly agrees that no water shall be used by Developer, or by Contractor or any Subcontractor, for construction purposes except through a meter provided by City. Developer acknowledges that Section 499 of the California Penal Code provides that unauthorized use of water is a misdemeanor, and City hereby states its intent to strictly enforce said Penal Code Section. AGREEMENT - Page 2 Agreement for Construction of Water Facilities NDA Development, LLC December 7, 2004 2. In addition to any criminal penalties, and not as a substitute therefore, City will charge Developer, and Developer agrees to promptly pay City, $504.00 per day for unmetered use of City's water by Developer, Contractor, or any Subcontractor, anyone directly or indirectly employed by any of them, or anyone for whose acts anyone of them may be liable. 3. Temporary construction meters shall be provided to Developer by City at the rental rate existing at the time such meters are provided. The use of "jumpers" is expressly prohibited. 4. Developer shall notify City as soon as it is reasonably practical to install any permanent meter, and City shall provide and install same as soon thereafter as reasonably possible. The foregoing notwithstanding, the City may install any meter when City determines it is desirable to do so. III. FEES, CHARGES, AND SECURITIES 1. Developer shall, prior to the permanent water service being provided to said property, pay City the following sums: (a) $4,691.63 for the costs of City's plan review, inspection of construction and the control thereof, and for the testing of materials which sum is based upon the estimated construction cost of $65,774. (b) $2,200 for the furnishing and installation by City of all permanent water meters which sum is based upon the following number and size of meter: seven (7) 1 -inch domestic and one (1) 1- inch irrigation. (c) $12,762 for Capital Improvement Charges based upon six (6) dwelling units and one (1) irrigation services at the rate of $2,127 per dwelling unit or meter. A credit was applied for two (2) existing water services that are to be removed during AGREEMENT - Page 3 Agreement for Construction of Water Facilities NDA Development, LLC December 7, 2004 construction. (d) $8,898 for Water Storage Charges based upon six (6) dwelling units and one (1) irrigation services at the rate of $1,483 per dwelling unit or meter. A credit was applied for two (2) existing water services that are to be removed during construction (e) $14,688 for Water Capacity Charge for providing additional water supply to serve the additional demand generated by the project, determined by the rate $2,448 per equivalent dwelling unit (EDU). 2. In addition to the above sums, a surety bond to secure the faithful performance of this Agreement in the sum of $72,351.40 is hereby approved. 3. When additional buildings on this property are constructed, Capital Improvement Charges, Water Storage Charges, Meter Fees, and any other applicable charges for the additional development shall be paid prior to additional service being provided. IV. GUARANTEE Developer hereby guarantees the materials and the workmanship of the water facilities for a period ending 365 consecutive calendar days after the acceptance of said water facilities by City, and hereby agrees to reimburse City for all costs associated with the accomplishment of necessary repairs to said water facilities which may have been made by City within the aforesaid guarantee period. V. GENERAL 1. Developer hereby offers to dedicate to City the water facilities AGREEMENT - Page 4 Agreement for Construction of Water Facilities NDA Development, LLC December i, 2004 together with necessary easements. 2. Upon completion of the construction in accordance with the improvement plans and specifications and the dedication of the necessary easements, City agrees to accept the water facilities, whereupon said water facilities shall become property of City. 3. The terms of this Agreement shall inure to the benefit of and be binding upon the successors and assigns of the parties hereto. 4. Should either party be required to enforce any of the terms of this Agreement, it is agreed that the prevailing party shall be entitled to costs and reasonable attorneys' fees. Vl. INSURANCE AND INDEMNIFICATION 1. Comprehensive General t_iabili Developer shall, during the construction period and until accepted, maintain in full force and effect comprehensive general liability coverage, including premises operations, products/compieted operations, broad form property damage and blanket contractual liability in the following minimum amounts: $500,000 property damage; • $500,000 injury to one person/any occurrence/not limited to contractual period • $1,000,000 injury to more than one person/any one occurrence/not limited to contractual period. 2. Comprehensive Automobile t_iability AGREEMENT - Page 5 Agreement for Construction of Water Facilities NDA Development, LLC December 7, 2004 Developer shall, during the construction period and until accepted, maintain in full force and effect comprehensive automobile liability coverage, including owned, hired and non -owned vehicles in the following minimum amounts: $500,000 property damage; • $500,000 injury to one person/any occurrence/not limited to contract. • $1,000,000 injury to more than one person/any one occurrence/not limited to contractual period. 3. Worker's Compensation If Developer employs employees to perform services under this Agreement, Developer shall obtain and maintain, during the construction period and until accepted, Worker's Compensation Employer's Liability Insurance in the statutory amount as required by state law. These policies shall not terminate, nor shall they be canceled nor the coverage reduced until after 30 days written notice is given to the City. Developer shall provide an endorsement to City establishing that City has been legally added as an additional insured to the insurance policies required under this Agreement. Developer shall indemnify and hold City harmless from any and all claims, demands, actions, attorney's fees, costs, and expenses based upon or arising out of errors, omissions, or negligent acts of Developer, its associates, employees, subcontractors, or other agents while performing services under this Agreement. In the event an action is commenced by a party to this Agreement against any other party or AGREEMENT - Page 6 Agreement for Construction of Water Facilities NDA Development, LLC December 7, 2004 parties hereto to enforce its rights or obligations arising from this Agreement, the prevailing party in such action, in additional to any other relief and recovery awarded by the court, shall be entitled to recover all statutory costs plus reasonable attorney's fees. VII. CITY BUSINESS LICENSE Developer will maintain a business license to do business in the City of San Juan Capistrano. VIII. INDEPENDENT AGENT At all times during the term of this Agreement, Developer shall be an independent agent and shall not be an employee of the City. City shall have the right to control Engineer only insofar as the results of Developer's services rendered pursuant to the Agreement; however, City shall not have the right to control the means by which Developer accomplishes services rendered pursuant to this Agreement. IX. INDEMNITY Developer shall be responsible for all injuries to persons and for damages to real or personal property of the City, caused by or resulting from any activity or operation of Developer, its employees or its agents during the progress of or connected with the rendition of services hereunder. Developer shall defend and hold harmless and indemnify City and all officers and employees of the City from all costs and claims for damages to real or personal property or personal injury to any third party resulting from the activity of itself, employees or its agents. X. DEVELOPER NOT AN AGENT Except as City may specify in writing, Developer shall have no authority, AGREEMENT - Page 7 Agreement for Construction of Water Facilities NDA Development, LLC December 7, 2004 express or implied, to act on behalf of the City in any capacity as an agent. Developer shall have no authority, express or implied, pursuant to this Agreement, to bind City to any obligation. AGREEMENT - PW 8 Agreement for Construction of Water Facilities NDA Development, LLC IN WITNESS WHEREOF, the parties hereto have executed this Agreement, consisting of nine pages, on the above date. - DEVELOPER NDA DEVELOPMENT, LLC PO BOX 1636 Santa Monica, CA 90406 Ph. (310) 513.1670 _ 00 By: AHMAD NEMOVI, OWNER ATTEST: ET R. MONAHAN, CITY CLERK APPROVED AS TO FORM: Q '�� � JOHN R. S , CITY ATTORNEY W:IENGIDVLPITRCTS1159241WTRAGMT. DOC CITY OF SAN JUAN CAPISTRANO By: a4a& "-/- MAYOR AGREEMENT - Paee 9 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California ss. County of _ �N On �4(ue 2�, zoo before me, 2(t Y N°!�§, NV CfA Ah/f C- Date N me and Title of1bffioer (e.g., "Jane Dod, Notary Public") personally appeared kj A4,1 Q N a i Name(s) of Signers) YOUNG YEI HONG m Commission #1392227 m U NOTARY PUBLIC -CALIFORNIA -i m ORANGE COUNTY CA) MM. Expires Dec. 29, 20561 ❑ personally known to me Y,proved to me on the basis of satisfactory evidence to be the persons whose name�s)glare subscribed to the within instrument and acknowledged to me that 6_e_�helthey executed the same in ii /her/their authorized capacity(i and that by Oherltheir signature(O on the instrument the person(,), or the entity upon behalf of which the persor),(s) acted, executed the instrument. WITNESS my hand and Qfficiai seal. Place Notary Seal Above ignature of Notary Pubric OPTIONAL 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 Document Title or Type of Document: 4R-��1 eij GDNS7X_ Q C -V 064 D� WAi,-V aGr Ll Document Date: SUAje >- >0Number of Pages: Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer Signer's Name: ❑ Individual Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee El Guardian or Conservator ❑ Other. Signer Is Representing: RIGHT THUMBPRINT OF SIGNER Top of thumb here 0 1999 National Notary Assodatlon -9360 N Soto Ave., P.O. Bo. 2402 - Chatsworth, CA 91313-2492 - w .natlonalnotary.org Prod. No. 5907 Reorder. Call Tall -Free 1-810.876-6827 ASSIGNMENT OF RIGHTS IN .AGREEMENT FOR CONSTRUCTION OF WATER FACILITIES (Subdivision Tract 15924, Counter of Orange) — Del Avion Gardens -- The undersigned, NDA Development, LLC (collectively referred to herein as "ASSIGNOR" and/or "DEVELOPER"), a California Limited Liability Company, hereby agrees to absolutely and unconditionallyassign, convey, transfer to CA Development, LLC ("ASSIGNEE"), a Nevada Limited Liability Company licensed to do business in California, all of ASSIGNOR'S rights, obligations, title and interest in and to that certain Agreement for Construction of Water Facilities ("AGREEMENT") between NDA Development, LLC, as DEVELOPER, and the City of San Juan Capistrano, a municipal corporation, (as CITY"), which is dated December 7, 2004, with the exception of the surety bonds and security instruments previously posted by ASSIGNOR to the CITY totaling $72,351.40, which shall be released by the CITY and returned to ASSIGNOR. NDA Development, LLC. a California Limited Liability Company P.O. Box Santa Monica, CA, 90406 Phone: (310 513-1670 By:.. ...,,...Oil, Date Name.V,,,, e J a Its: This Assignment is hereby accepted by CA Development, LLC, as ASSIGNEE, and ASSIGNEE hereby assumes for the benefit of CITY and ASSIGNOR all obligations of ASSIGNOR under the AGREEMENT. P CA Development, LLC a Nevada Limited Liability Company 24771 Jessica Place Laguna Niguel, CA. 92677 Phone: (817) 557-2224 y Date Name: Theresa Pham Its: President CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of ---. ) On t>1 VM 15 before me, Date Nam + f lane �D.ea personally appeared VIINO -1 ............... Name(5) of Signer(s) �al 51Y Cc # A�f) Notary put)lic - C(.,�Tofnra ^ 10 Orange C_0� nty tAVCo mm Expiles Oct 17, 2004� Place Notary Sea€ Above I. ` personally known to me L_- roved to me on the basis of satisfactory evidence to be the persot�) whose namoke) is/afe-subscribed to the within instrument and acknowledged to me that he/&hefth,ey executed the same in his/fir authorized capacity( 4e4 and that by his/hem signature(-&- the instrument the persor(-4 or the entity upon behalf of which the person(sr-acted, executed the instrument. WITNESS my jSignature . .... . OPTIONAL 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 Document Title or Type of Document: .. .............................................. Document Date! Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ....................... ............. . ... .... .. .... .. .... . ... ... ........ ... Individual I J Corporate Officer----- Title(s): ........- I ........I 1 Partner -- Ii Limited General WHOM I Attorney in Fact Top -'f thUmh iie r> t Trustee 1 Guardian or Conservator I Other: ................... ...... Signer Is Representing: . T.... Number of Pages; Signer's Name: . . . ....... .......... ...... .... ........ ........... I Individual 1 Corporate Officer --- Title(s): ... ... ........... . . .. . . . .. . .................... .. .... .. Partner — 'A Limited 1i General L.J Attorney in Fact Tr.4) c)f th:Jirb how Trustee i Guardian or Conservator D Other Signer Is Representing: .. ... ... .. .. `<, 2064 National Notary Association - 9350 De, Solo Ave , RO 14OX 2402 - Chatsworth, CA 913 13-2402 Item No 5907 Reorder- (;all loll -Free 1-800-876-6827 State of Texas County of Tarrant swor ands ed before tie on: the � v a� CASEY LO WTHER r..../ n Esc * � SATE (1F TEXAS uy OF h F t B.2009 BOND NO. 7218825 $2,171.00 premium is for a term of 2 years Subject to Renewal KNOW ALL MEN BY THESE PRESENTS: That we, CA DEVELOPMENT, LLC as Principal, and INDEMNITY COMPANY OF CALIFORNIA Corporation, created, organized, and existing and by virtue of the taws of the State of California , duty licensed to transact a general surety business in the State of California, as surety, are held and firmly bound to the CITY OF SAN JUAN CAPISTRANO, County of ©range, State of California, in the sum of $ 72,351,40 DOLLARS, lawful money of the United States of America, to be paid to the said City for which payment well and truly to be made we hind ourselves, our heirs, executors and successors, jointly and severally. THE CONDITION OF THE FOREGOING OBLIGATION is such that whereas the above bounden Principal has agreed to do and perform the following, to -wit: Construct and install all of the water facilities pursuant to Agreement for 1217104 b . Assignment CYYe 'CT C7 tECiiT 2if �iV I r I TLIL " 'nYLi Gl TiEiQ fn 0�. 2007, bj% aiwd-15etween CITY OF SAN JUAN CAPISTRANO, and CA DEVELOPMENT, LLC , a copy of which is attached hereto and made a part hereof. 1. As a part of the obligation secured hereby, and in addition to the face amount specified, there shall be included costs and reasonable expenses and fees, including reasonable attorney's fees, incurred by City of San Juan Capistrano in successfully enforcing such obligation, all to be taxed as costs and included in any judgment rendered. 2. Said surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration, or modification of the contract documents or of the work to be performed thereunder, shall in any way affect its obligations or this bond, and it does hereby waive notice of any such change, extension of time, alterations or mod cations of the contract documents or of work to be performed thereunder. NOW, THEREFORE, the condition of this obligation is such that if the bounden Principal shall, to the satisfaction of the CTIY OF SAN JUAN CAPISTRANO faithfully and properly perform all of the work described in said Agreement and in accordance with the plans and specifications approved for said work and shall pay all sums due for all damages suffered by said City by reason of faulty or defective work or the carelessness or negligence of said Principal and for the completion of any work not satisfactorily or properly performed in accordance with the Agreement between City and TRACT NO. 15924 BOND NO, 7218825 DATE November 21, 2007 Principal, and guarantee all work for a period of one year after acceptance in accordance with said Agreement, then, at the expiration of said guarantee period, this obligation shall be null and void; otherwise to remain in full force and effect. IN WITNESS WHEREOF said Principal and Surety have caused this bond to be execrated by their officers thereunto duly authorized this 21 st � day of November 2007. (SEAL) (SF:1AL) PRINCIPAL: By: CA DEVELOPMENT, LLC �1 i'VI �1 sea .«n� �s L4'! SURETY: INDEM TY COMPANY O CALIFOR. I, By: ) �� Attorney In Fact Susan E. Barrett The premium on this bond is Mailing Address of Surety - 171 .00 urety: 171.00 APPROVE© AS TO FORM Jahn S aw, City Attorney (Executed in Triplicate) 2999 Oak Road, Suite 420 Walnut Creek, CA 94597 ACKNOWLEDGMENT i State of California County of Orange On . c ly z-vcq before me, Hansa A. Saysani, Notary Public (here insert name and title of the officer) personally appeared peT--ee-nafly-knGwn-to- (or proved to me on the basis of satisfactory evidence) to be the person(f) whose name('&ap6 subscribed to the within instrument and acknowledged to me that/s#/tl)ey executed the same in hi ih r/thf it authorized capacity(), anti that lay hi /h�/tl�ir signature( on the instrument the person, or the entity upon behalf of which the person( acted, executed the instrument. I WITNESS my hand and official seal. GAtIFO RY PUBLIC - ('.NiA 1i01A 1PN # 1`1'35A ORA G' GOUN 4V 2011 .Oct. Signature c' r r c (Seal) POW EaR OF AT'f'ORNE Y FOR DEVELOPERS SURETY AND INDEMNITY CONIPANY INDE:AINITY COMPANY OF CALIFORNIA PC? BOX 11)725, I RV INt::_ CA 92621 (949) 261-3308 KNOW ALL MiiN BY THLSE PRLSENTS, €hat except as expressly limited, DLVELOPLRS SL.IRE TY AND INDEMNITY COMPANY .and INDFAINITY COMPANY OF CALIFORNIA, do each, hereby make,constitute and appoint: ***Nip Pham, Susan E, Barrett, jointly or severally*** as their true and lawful Attorney(s)-in-Fact, to make, execute, deliver and acknowledge, for and on behalf of said corpor t6ons, as sureties, bands, undertakings and contracts of suretyshils giving and granting unto said Attorney(s)-in-Fact full power and awhority to do anti to perforin every act necessary- requisite or proper to be done in connection therewith as each ofsaid corporations could do, btl€ reserviity to each of said corporations full power of substinnion and revocation, and all of the acts of said Attorneys) -in -Fact, pursuant to these presents, are hereby ratified and Confirmed. This Power ofArtorney is granted and is signed by facsimile under and by authority of the following resoltttionc adopted by the respective Board of Directors of I1EVFLOPERS SURF..TY AND IND€':MNITY ('OMPANY and INDEMNITY COMPANY OF CALIFORNIA, effective as ofNovember 1. 2000: RESOLVED, that the Chairman oftate Board, the ['resident and any Vice Presidenr of rhe eorporaiion be, and that each of them hereby is, anthorized to execute powers orAtiorasev, qualifying the atiorney(s) named in the Powers ofA«orney to execute, on behalfofthe cuipora€inns, bonds, undertakings and contracts of suretyship; and that the Secretary or any Assistant Secretary of the corporations be, and cacti of them hereby is, authorized to arrest the execution of arty such Power of Attoviiey: RLSOLVED, FLtRTH[?it, that the signatures of such officers may Lie affixed to any such Power ofAttorney or to any certificale relating; thereto by facsimile, and any such Power of Attorney or certificate hearing such facsimile signatures shall be valid and binding upon the corporation when so affixed and in The future will) respect to any bond, undertaking or conlrae€. of suretyshils to which it iS a€€ached. IN WI•I NL SS WHEREOF, DCVELOPEItS SURF FY AND 1ND1,WNITY COMPANY and INDFMINITY COMPANY OF CALIFORNIA have severally caused these presents to be signed by their respective Lxecutive Vice President and anested by ilicir respective Secretary this Ise day of December, 2005- fav: David H. Rhodes, FsxMitive Vice -President Walter A. Crowell, Secretary S .NFF OF CALIFORNIA COUNTY O€a OR.ANGL r�J:.OpPORq, ,4- :p `: _ = OCT. OCT. s 1967 0 1936 C, IFOO On December 1, 2(N)5 before me. Gina L. Gamer, Notary Public (here insert name and title of the officer), personally appeared David It Rhodes and 'A'altot- A. Cruwcal, personally known to me (or Proved to me on the basis ofsatisfactory evidence) to be tfre person(s) whose namc(s) is,are subscribed w the within instrument and acknowledgd to nee theat . he/she/they executed the same in hlsrlierAheir authorized capacity(res), and that by hisiher/dicir signaillrre(s) on the illStiltiilcilt the person(sl, or the: end y upon hehalt' ot'which the person(s) acted, executed the instrument. WITNESS my hand and official seal. signature �_ Y GiNA L. GARNER a COMM. ## 1569561 (SEAL) NOTARY PUBLIC CAL] ORANGE COUNTY _�!!Y..camm, expires May 13, 2009 CERTIF1C.-VI-E The itndeasigned,a5 Assistant Secretary, of DEVF.LOPI`RS SURETY AND INDEMNITY COMPANY and INDFMNIT Y COMPANY OF CALIFORNIA, does hereby certify that the. foregoing Power ofAttomcy remains in full force and has not been revoked, and furthermore, that the provisions of the resolutions of the respective Boards of Directors of said corporations set forth in the Power of Attorney, are in force as of elle date of this Certificate, "rhis Certificate is executed in the City of Irvine, C alifbrnia. the Z 1 S dray uf___UaVej Le_r _ 2_afy7 .. By Albert Hillebrand, Assistant Secretary I D-1380 (Rev, 12/05) CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Santa Clara On _ before me, sham, notary public D TE NA'M'E. TI'?'LE OF OFFICER - E, G 'JANE DOE. NOTARY FtuELIC" personally appeared Susan E._ Barrett NAMEIS, OF SIGNERS) ki personally known to me - OR - ❑ proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and ac- knowledged to me that he/she/they executed N. PHAM the same in his/her/their authorized Commis -1659458 i Notary Public ^ California capacity(ies), and that by his/her/their Santa Clara County signature(s) on the instrument the person(s), My Comm. Expires Apr 18, 20 t Q or the e tity upon behalf of which the person(sYlacted, executed the instrument. WITNESS hy hand and off i(�ial seal. TUNE OF NOkARY OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER ❑ INDIVIDUAL ❑ CORPORATE OFFICER 'TITLE(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ATTORNEY-IN-FACT ❑ TRUSTEE(S) GUARDIAN/CONSERVATOR OTHER: SIGNER IS REPRESENTING: NAME Or: PERSON(S) OR ENI 'TITY(PES) BD -1133 3/94 DESCRIPTION OF ATTACHED DOCUMENT TITLE OR TYPE OF DOCUMENT NUMBER OF PAGES DATE OF DOCUMENT SIGNER(S) OTHER THAN NAMED ABOVE Lid. PawerioTAURmay ..James 1_Q,j,Cw& RIty. a Lev_ ht,. Agent Theresa Xj:anPParra, P;!ndpai Khrilt t Tft0T0-S0XQaUft2M/ CA De = I US Hometand.LLC ("principal" thereby appoint.- James Le I �C*asWl Realty and Development Inc. as .my nan-exclusive Athmay-in-Fact CAgenr). My.Aged fls out.honzed to ad independently andforjointly with Principal's other .Pugin %,,. andsh-atl bave' full -power and authority to act onmy behalf in the foil owing Matter. TRANSACTION&CONG-EFWNG PROPERTY LOCATED AT [)ANA POINT, 'CALIFORNIA, Which is currently owned by the Prindpal. (,Prop",,) 1 - POWERS- L4y Agent shall have the following limited power - To obtain .-i4formation: from, and to prepare, sign, and file applications and dodumerft With governmental bodes or agencies havirg authoCay over the deveto Pment of the PROPERTY, including Building, Zoning and regulatory agen.cies within and including. the City of Dana Point, County of Orange, arra to provide -information, and perform any oilier act reasonably requested or required, by gi3vernmentai .agencies in connectin on with the Propefty.. 2, U.MITATIONS- This Power of Attoffwy shag be construed as a Limited Power Of Attomey, Authority fo act on matters not stated or reasonably inferred, by this document is not. granted, 3. IMPUTATIONS. Any grower or auMority granted to my Agent under this dOcumeytt shall be liffRed to the extent , necassaw to prevent Ws Power of Attorney frOm causing- @ my income to be fa ble to my Agent or (5) my Agent to have any incidents ref ovmershipAft Fespect to any property that 1: may own Agent. 4. AGENT LIABILITY. My Agent shafl, not be triable for any loss that results from. a judgrr e,nt efror that was: made in, good: faith. However., my Agent shall ba -liable for. MT ful rn isconduct carp the failure to act in good faith while acting under the authoTity of this Power of Aft orney. A successor Agent shall not be liable for ancts of a prior Agent - 5, [NDEMNI-9CAtTION C -F7 -11-HPD- F1ARTTj_=S-. T'he PrincipW herebv kwili hall ha",i an- -FN'Md P atty wnc�L accepzs and cis under the i .P - imftedaut'hod-W this doc;ument, who has riot receivers, writter-f notice provided in paragraph SX - 6. EFFECTIVE DATE,, This Power of Attorney shall. become effective lrn.nTediately page I Of 2r Ltd., Povief ofAftamey James Le/ Costal, Rlty4 & DevAnr, Agent The esa:XuanPham. Prin6pal and shall :expire on January 1, 2009, This Power of Attorney may be revoked by me at any fibie by providing wr&,,en notice to my Agent and all entities known to the principal. who may have relied upon the representations of myAgent- For CA Development LLC I US Homeland LLC By Theroset;i Pham M Date6 STATE OF TEX"�' - COUNTY OF The Ibregoing instrument 5was al:*Pawledglcf before me this Cloy 0 .2007 -71 , who is personally. knovin to me o! who has produced bY as lider44aafion. Natwy NEbIT"t, Slate of Texas Qr' LAAS N e'k ted Nctar7z 7o kiy :o-m-4—ssioitexwes Pogo 2 of 2 " 12/7/2004 E 7 AGENDA REPORT TO: Dave Adams, City Manager 0K. FROM: Amy Amirani, Public Works Director SUBJECT: Consideration of Acceptance of Water Rights, Water Easements, and an Agreement for Construction of Water Facilities (NDA Development, LLC) (Camino Del Avion and Del Obispo) (Tract 15924) RECOMMENDATION: By Motion, accept the dedication of water rights and water easements as presented on the Final Map forTract15924; authorize the City Clerk to sign the Certificate of Acceptance on behalf of the City of San Juan Capistrano; approve the Agreement for Construction of Water Facilities with NDA Development, LLC; and authorize the Mayor and City Clerk to execute the Agreement for Construction of Water Facilities. SITUATION: NDA Development, LLC, the current owner/developer, has submitted the subject map to subdivide a 2.10 -acre site into six single-family residential lots. The project (Tract 15924) is within the City of Dana Point located at the southwest corner of Camino Del Avion and Del Obispo, and the site currently has one single-family residence (Attachment 1). This area is served water by the City of San Juan Capistrano (City) through a water service area agreement between South Coast Water District (SCWD) and the City. In order for the City to serve water to said tract, NDA Development, LLC must process an Agreement for Construction of Water Facilities (Attachment 3). In order for the City Council of the City of Dana Point to approve the Tract Map, the map must have prior acceptance by the City Council of the City of San Juan Capistrano. The Final Map (Attachment 2) has been reviewed by the Engineering Division for the City of Dana Point and was found to be in conformance with the Tentative Tract Map, the Subdivision Map Act, and all City of Dana Point requirements for subdivision. The developer has dedicated to the City of San Juan Capistrano all necessary water easements to provide water service to the project, as well as the water rights. NDA Development, LLC is submitting the Final Map for Tract 15924 for City Council acceptance of water easements and water rights. In addition to the dedication of water Agenda Report December 7, 2004 Page 2 NDA Development, LLC is submitting the Final Map for Tract 15924 for City Council acceptance of water easements and water rights. In addition to the dedication of water easements and water rights, NDA Development, LLC is processing an Agreement for the Construction of Water Facilities. Staff, therefore, recommends acceptance of the water easements and water rights as shown and dedicated on the Final Map for Tract 15924, as well as the approval of the Agreement for the Construction of Water Facilities. COMMISSION/BOARD REVIEW, RECOMMENDATIONS: Not Applicable. FINANCIAL CONSIDERATIONS: All applicable fees have been paid and the required sureties posted with the City. There is no cost to the City associated with the construction of the public water system. NOTIFICATION: NDA Development, LLC RECOMMENDATION: By Motion, accept the dedication of water rights and water easements as presented on the Final Map for Tract 15924; authorize the City Clerk to sign the Certificate of Acceptance on behalf of the City of San Juan Capistrano; approve the Agreement for Construction of Water Facilities with NDA Development, LLC; and authorize the Mayor and City Clerk to execute the Agreement for Construction of Water Facilities. Respectfully Submitted, Amy Amirani Public Works Director AA/CLH: mp Attachments: 1. Location Map 2. Final Tract Map 3. Agreement Prepared By, a 02r/- t Craig L. 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MAWNA Nab MA 9"w Ln W 4NVAW a goM doom 0 CAA411V() L,;S M605 a now* Attachment 2 Final Tract Map 15924 Due to the size of this attachment, it has available for public and Council review ir Works Department of the City of San Juan located at 32450 Paseo Adelanto, San Juan CA 92675 been made the Public Capistrano, Capistrano, ATTACHMENT 2 AGREEMENT FOR CONSTRUCTION OF WATER FACILITIES THIS AGREEMENT, dated this December 7, 2004) by and between NDA DEVLOPMENT, LLC, a California Limited Company, hereinafter called "Developer", and p CITY SAN JUAN CAPISTRANO, hereinafter called "City". WITNESSETH: WHEREAS, Developer wishes to obtain water services from the CITY OF SAN JUAN CAPISTRANO, hereinafter called "CITY" for propertyknown as TRACT 15924 , Dana Point, CA, and City requires the construction and dedication of water facilities by Developer as a condition of providing said water services; and WHEREAS, Developer has prepared and submitted to City a set of improvement p plans for said water facilities, and WHEREAS, City desires to insure that said water facilities are installed in accordance with City's water standards and specifications. NOW, THEREFORE, it is hereby agreed by and between Developer and Cit that: p Y I. CONSTRUCTION AND COMPLETION 1. Developer shall, at its sole cost and expense, construct and install within twenty-four (24) months from the effective date of this Agreement, all of the e water facilities shown and delineated upon the improvementlans entitled "SEWER WER AND WATER IMPROVMENT PLANS FOR TRACT NO. 15924" as approved b pp y the Water Engineering Manager of the City and on file with said City and by reference made a part of this Agreement as though fully set forth herein. If construction has not started within the terms of this agreement, the developer may a request permit extension in q p accordance with section 300.13.3 and section 300.13.3.1 with discretionary y y b the City. ATTACHMENT 3 2. Developer shall construct said water facilities in accordance with the Agreement for Construction of Water Facilities NDA Development, LLC December 7, 2004 approved plans, City's water standard specifications and under City's inspection, and shall indemnify and hold harmless all officers, employees and City agents of the Ci from and g against all claims, damages, losses and expenses, including attorneys' fees, arising out of or resulting from the performance of the work and caused in whole or in part by any negligent act or omission of Developer, Contractor, or any Subcontractor, anyone directly Y or indirectly employed by any of them, or anyone for whose acts any may of them be Y liable, regardless of whether or not it is caused in part by a party indemnified hereunder. 3. If Developer has not completed the work within twenty-four (24) months from the effective date of this Agreement, City has the right to call the security for faithful performance and complete the work. Any work performed after said twenty-four (24) months, whether by Developer, City, or others, shall be in accordance with City's standard specifications in effect as of the time the work is performed. 4. The security shall remain in effect for a minimum of 365 consecutive calendar days after all the water facilities have been completed and accepted by City, and shall continue in effect until exonerated in writing by City. It shall be incumbent upon the developer to renew the security prior to its expiration. II. USE OF WATER 1. Developer hereby expressly agrees that no water shall be used by Developer, or by Contractor or any Subcontractor, for constructionoses u t p � except through a meter provided by City. Developer acknowledges that Section 499 of g the California Penal Code provides that unauthorized use of water is a misdemeanor, and City hereby states its intent to strictly enforce said Penal Code Section. AGREEMENT - Page 2 Agreement for Construction of Water Facilities NDA Development, LLC December 7, 2004 2. In addition to any criminal penalties, and not as a substitute therefore, City will charge Developer, and Developer agrees to promptly tl pay Cit $500.00 p Y� per day for unmetered use of City's water by Developer, Contractor, or an Subcontractor, , C anyone directly or indirectly employed by any of them, or anyone for whose acts anyone of them may be liable. 3. Temporary construction meters shall be provided to Developer b p Y City at the rental rate existing at the time such meters are provided. The use of "jumpers" P is expressly prohibited. 4. Developer shall notify City as soon as it is reasonably practical to install any permanent meter, and City shall provide and install same as soon thereafter as reasonably possible. The foregoing notwithstanding, the City may install any meter when City determines it is desirable to do so. III. FEES, CHARGES, AND SECURITIES 1. Developer shall, prior to the permanent water service being provided to said property, pay City the following sums: (a) $4,691.63 for the costs of City's plan review, inspection of construction and the control thereof, and for the testing of materials which sum is based upon the estimated construction cost of $65,774. (b) $2,200 for the furnishing and installation by City of all permanent water meters which sum is based upon the following number and size of meter: seven (7) 1 -inch domestic and one (1) 1 -inch irrigation. (c) $12,762 for Capital Improvement Charges based upon six (6) dwelling units and one (1) irrigation services at the rate of $2,127 per dwelling unit or meter. A credit was applied for two (2) existing water services that are to be removed during AGREEMENT - Page 3 Agreement for Construction of Water Facilities NDA Development, LLC December 7, 2004 construction. (d) $8,898 for Water Storage Charges based upon six (6) dwelling units and one (1) irrigation services at the rate of $1,483 per dwelling unit or meter. A credit was applied for two (2) existing water services that are to be removed during construction (e) $14,688 for Water Capacity Charge for providing additional water supply to serve the additional demand generated by the project, determined by the rate $2,448 per equivalent dwelling unit (EDU). 2. In addition to the above sums, a surety bond to secure the faithful performance of this Agreement in the sum of $72,351.40 is hereby approved. 3. When additional buildings on this property are constructed, Capital Improvement Charges, Water Storage Charges, Meter Fees, and any other applicable charges for the additional development shall be paid prior to additional service being provided. IV. GUARANTEE Developer hereby guarantees the materials and the, workmanship of the water facilities for a period ending 365 consecutive calendar days after the acceptance of said water facilities by City, and hereby agrees to reimburse City for all costs associated with the accomplishment of necessary repairs to said water facilities which may have been made by City within the aforesaid guarantee period. V. GENERAL 1. Developer hereby offers to dedicate to City the water facilities AGREEMENT - Page 4 Agreement for Construction of Water Facilities NDA Development, LLC December 7, 2004 together with necessary easements. 2. Upon completion of the construction in accordance with the improvement plans and specifications and the dedication of the necessary easements, City agrees to accept the water facilities, whereupon said water facilities shall become ome property of City. 3. The terms of this Agreement shall inure to the benefit of and be binding upon the successors and assigns of the parties hereto. 4. Should either party be required to enforce any of the terms of this Agreement, it is agreed that the prevailing party shall be entitled to costs and reasonable attorneys' fees. VI. INSURANCE AND INDEMNIFICATION 1. Comprehensive General Liability Developer shall, during the construction period and until accepted, maintain in full force and effect comprehensive general liability coverage, including 9 premises operations, products/completed operations, broad form property damage a and blanket contractual liability in the following minimum amounts: • $500,000 property damage; • $500,000 injury to one person/any occurrence/not limited to contractual period • $1,000,000 injury to more than one person/any one occurrence/not limited to contractual period. 2. Comprehensive Automobile Liability AGREEMENT - Page 5 Agreement for Construction of Water Facilities NDA Development, LLC December 7, 2004 Developer shall, during the construction period and until accepted, maintain in full force and effect comprehensive automobile liability coverage, including owned, hired and non -owned vehicles in the following minimum amounts: 0 • $500,000 property damage; • $500,000 injury to one person/any occurrence/not limited to contract. • $1,000,000 injury to more than one person/any one occurrence/not limited to contractual period. 3. Worker's Compensation If Developer employs employees to perform services under this Agreement, Developer shall obtain and maintain, during the constructionp eriod and until accepted, Worker's Compensation Employer's Liability Insurance in the statutory amount as req u i red by state law. These policies shall not terminate, nor shall they be canceled nor the coverage reduced until after 30 days written notice is given to the City. Developer shall provide an endorsement to City establishing that City has been legally added as an additional insured to the insurance olicies required under p this Agreement. Developer shall indemnify and hold City harmless from any and all claims, demands, actions, attorney's fees, costs, and expenses based or upon arising out p g of errors, omissions, or negligent acts of Developer, its associates, employees, subcontractors, or other agents while performing services under this Agreement. In the event an action is commenced by a party to this Agreement against any party other a or AGREEMENT - Page 6 Agreement for Construction of Water Facilities NDA Development, LLC December 7, 2004 parties hereto to enforce its rights or obligations arising from this Agreement, the prevailing party in such action, in additional to any other relief and recovery awarded by the court, shall be entitled to recover all statutory costs plus reasonable attorney's fees. VII. CITY BUSINESS LICENSE Developer will maintain a business license to do business in the City of San Juan Capistrano. VIII. INDEPENDENT AGENT At all times during the term of this Agreement, Developer shall be an independent agent and shall not be an employee of the City. City shall have the right to control Engineer only insofar as the results of Developer's services rendered pursuant to the Agreement; however, City shall not have the right to control the means by which Developer accomplishes services rendered pursuant to this Agreement. IX. INDEMNITY Developer shall be responsible for all injuries to persons and for damages to real or personal property of the City, caused by or resulting from any activity or operation of Developer, its employees or its agents during the progress of or connected with the rendition of services hereunder. Developer shall defend and hold harmless and indemnify City and all officers and employees of the City from all costs and claims for damages to real or personal property or personal injury to any third party resulting from the activity of itself, employees or its agents. X. DEVELOPER NOT AN AGENT Except as City may specify in writing, Developer shall have no authority, Y AGREEMENT - Page 7 Agreement for Construction of Water Facilities NDA Development, LLC December 7, 2004 express or implied, to act on behalf of the City in any capacity as an agent. Developer shall have no authority, express or implied, pursuant to this Agreement, to bind City ty to any obligation. AGREEMENT - Page 8 Agreement for Construction of Water Facilities NDA Development, LLC IN WITNESS WHEREOF, the parties hereto have executed this Agreement, consisting of nine pages, on the above date. - DEVELOPER NDA DEVELOPMENT, LLC PO BOX 1636 Santa Monica, CA 90406 Ph. (310) 513.1670 00 AHMAD NEMOVI, OWNER ATTEST: MARGARET R. MONAHAN, CITY CLERK APPROVED AS TO FORM: JOHN R. QSAU, CITY ATTORNEY W:\ENG\DVLP\TRCTS\15924\WTRAGMT. DOC CITY OF SAN JUAN CAPISTRANO mon MAYOR AGREEMENT - Pa2e 9 CALIFORNIA ALL=PURPOSE ACKNOWLEDGMENT State of California County of 0A4N),P— ss. On .-TUVe, , 240 , before me, al y-el"Holv-5/V0 % 4- c— Date N me and Title of fficer (e.g., "Jane Doe, Notary Public") personally appeared A4t� 0 A a i Name(s) of Signer(s) ' ❑personally known to me C?� proved to me on the basis of satisfactory evidence to be the person(g) whose name(s)(-gi/are subscribed to the within instrument and acknowledged to me that 6e'bhe/they executed YOUNG YEI HONG03the same in i /her/their authorized w . Commission #1392227 0 capacity(ie and that by t9her/their � > NOTARY PUBLIC -CALIFORNIA W signature() on the instrument the person(g), or ORANGE COUNTY h �,� the emit upon behalf of which the erso ,* My Comm. Expires Dec. 29,1CG Y p p nA) acted, executed the instrument. L WITNESS my hand and official seal. I Place Notary Seal Above Signature of Notary Public i OPTIONAL 1. 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. l. Description of Attached Document 1 Title or Type of Document: &R,C-CWS7X_ ,C c7- f L -j4^ 0)t Document Date: SUS e - Number of Pages: i. I' Signer(s) Other Than Named Above: i Capacity(ies) Claimed by Signer Signer's Name: ❑ Individual • - Top of thumb here ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: ® 1999 National Notary Association - 9350 De Soto Ave., P.O. Box 2402 - Chatsworth, CA 91313-2402 - www.nabonainotary.org Prod. No. 5907 Reorder. Call Toll -Free 1-840-876-6827 1/5/2005 D 2b MINUTES DECEMBER 7, 2004 SAN JUAN CAPISTRANO CITY COUNCIL REGULAR MEETING CLOSED SESSION (610.85): None Mayor Soto called the regular meeting of the City Council of the City of San Juan Capistrano to order at 7:06 p.m. in the City Council Chamber. Kyle Pickell, San Juan Capistrano Boy Scout Troop 12 member, led the Pledge of Allegiance and Council Member Swerdlin gave the invocation. ROLL CALL COUNCIL MEMBERS PRESENT: Sam Allevato, Diane Bathgate, David M. Swerdlin, Mayor pro tem Wyatt Hart, and Mayor Joe Soto. COUNCIL MEMBERS ABSENT: None STAFF PRESENT: David Adams, City Manager, William M. Huber, Assistant City Manager; Cynthia L. Russell, Administrative Services Director; John Shaw, City Attorney; Meg Monahan, City Clerk; Molly Bogh, Planning Director; Nasser Abbaszadeh, Engineering and Building Director; Amy Amirani, Public Works Director; Al King, Jr., Community Services Director; Lt. J. B. Davis, Chief of Police Services; Douglas D. Dumhart, Economic Development Manager; Michael Cantor, Senior Management Analyst; William Ramsey, Principal Planner; Larry Lawrence, Planning Consultant; William Cunningham, Consulting Project Manager; and Eileen White, Recording Secretary. ANNOUNCEMENT OF CLOSED SESSION ACTIONS: None CITY COUNCIL COMMENTS AND ORAL REPORTS: Council Member Allevato complemented staff for coordinating the annual Tree Lighting Ceremony. Council members concurred. Council Member Swerdlin reported that the Transportation Corridor Agencies recently seated William Woollett, Jr. as Interim Chief Executive Office; and the Vector Control Agency has increased its efforts to eradicate the Imported Red Fire Ant. Council Member Bathgate reported attending a recent meeting of the South Orange County Wastewater Authority. ANNOUNCEMENTS OF COMMUNITYWIDE INTEREST Al King, Jr., Community Services Director, announced the "Lunch with Santa" event hosted by the Youth Advisory Board, this Saturday, December 11 t" at 11:00 a.m. 12-7-04 INTRODUCTIONS, PRESENTATIONS, AND DONATIONS 1. CERTIFICATE OF APPRECIATION PRESENTED TO AL KING. (610.40) William M. Huber, Assistant City Manager, recognized Al King, outgoing Community Services Director, for his 14 years of loyal service to the City; and Mayor Soto presented Mr. King with a Certificate of Appreciation. 2. PRESENTATION REGARDING GRAND JURY APPOINTMENTS BY JUDGE FRANCISCO F. FIRMAT. (610.40) Judge Francisco F. Firmat presented information concerning the Grand Jury appointment process and encouraged community members to apply. 3. INTRODUCTION OF COMMISSIONERS PRESENT AT MEETING (110.10) Mayor pro tem Hart introduced the following persons in attendance: Sheldon Cohen and Gene Ratcliffe, Planning Commission; Angela Duzich, Lori Porter, and Don Tryon, Cultural Heritage Commission; Marie Buckner and Joann de Guevara, Housing Advisory Committee; Les Blair, Council Liaison to the San Juan Seniors; Roger Evans, and Kathy Hooper, Parks, Recreation and Equestrian Commission; Phillip Schwartze, former Mayor; Brad Gates, Retired Orange County Sheriff; Scott Pickell, Troop Leader and 15 members of San Juan Capistrano Boy Scout Troop 12. JOINT MEETING: CITY COUNCIL AND COMMUNITY REDEVELOPMENT AGENCY REORGANIZATION 1. WYATT HART SELECTED AS MAYOR AND DAVID M. SWERDLIN SELECTED AS MAYOR PRO TEM FOR TERM ENDING DECEMBER 6, 2005. (630.20) Mayor Soto thanked colleagues, family members, and the community for their support during his term as Mayor. Meg Monahan, City Clerk, called for nominations for the office of Mayor. Council Action: Moved by Council Member Bathgate, seconded by Council Member Swerdlin, and carried unanimously, 5-0, to select Wyatt Hart as Mayor for the term ending December 6, 2005. On behalf of the City, Mayor Hart recognized outgoing Mayor Soto with a plaque commemorating his service and presented flowers to his wife, Carol Soto, for her support during his term. 2 12-7-04 Mayor Hart stated that it was an honor and privilege to serve as Mayor and thanked his family and fellow Council Members for their support and endorsement. Meg Monahan, City Clerk, called for nominations for the office of Mayor pro tem. Council Action: Moved by Mayor Hart, seconded by Council Member Allevato and carried unanimously, 5-0, to select David M. Swerdlin as Mayor pro tem for the term ending December 6, 2005. 2. RESOLUTION NO. 04-12-07-01 ADOPTED AUTHORIZING CURRENT OFFICERS TO MAKE DEPOSITS AND INVESTMENTS ON BEHALF OF CITY. (320.10) Description: The Resolution authorizes the current officers of the City to invest funds and draw checks on City bank accounts. Written Communications: Report dated December 7, 2004, by Meg Monahan, City Clerk. Council Action: Moved by Council Member Bathgate, seconded by Council Member Soto, and carried unanimously, 5-0, to adopt Resolution No. 04-12-07- 01, entitled " A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, DELEGATING TO THE CITY TREASURER AUTHORITY TO DEPOSIT CITY FUNDS AND TO INVEST OR REINVEST CITY FUNDS, AUTHORIZING SIGNATURES AND REPEALING RESOLUTION NO. 03-12-02-01." 3. JOE SOTO SELECTED AS CHAIRMAN AND SAM ALLEVATO SELECTED AS VICE CHAIRMAN OF THE COMMUNITY REDEVELOPMENT AGENCY FOR TERM ENDING DECEMBER 6, 2005. (400.10) Meg Monahan, Agency Secretary, called for nominations for the office of Chairman. Board Action: Moved by Director Bathgate, seconded by Director Hart and carried unanimously, 5-0, to select Joe Soto as Chairman for the term ending December 6, 2005. Meg Monahan, Agency Secretary, called for nominations for the office of Vice Chairman. Board Action: Moved by Director Hart, seconded by Director Swerdlin, and carried unanimously, 5-0, to select Sam Allevato as Vice Chairman for the term ending December 6, 2005. 3 12-7-04 4. RESOLUTION NO. CRA 04-12-07-01 ADOPTED AUTHORIZING CURRENT OFFICERS TO MAKE DEPOSITS AND INVESTMENTS ON BEHALF OF THE COMMUNITY REDEVELOPMENT AGENCY. (320.10) Description: The Resolution authorizes the deposits and investments of funds by current officers. Written Communications: Report dated December 7, 2004, by Meg Monahan, Agency Secretary. Board Action: Moved by Director Swerdlin, seconded by Director Allevato and carried unanimously, 5-0, to adopt Resolution No. CRA 04-12-07-017 entitled "A RESOLUTION OF THE SAN JUAN CAPISTRANO REDEVELOPMENT AGENCY DELEGATING TO THE AGENCY FINANCE OFFICER AUTHORITY TO DEPOSIT AGENCY FUNDS AND TO INVEST AND REINVEST AGENCY FUNDS, AUTHORIZING SIGNATURES, AND REPEALING RESOLUTION NO. CRA 04-03-16-01." ORAL COMMUNICATIONS William Drews, City resident, recommended installation of safety railings along the pedestrian crossing at the Ortega Highway interchange with Interstate 5. Dave Adams, City Manager, indicated that staff would contact Mr. Drews concerning the matter. Ben Poliquin, City resident, suggested construction of a skate board park to provide youth activities. Al King, Jr., Community Services Director, reported that staff would contact Mr. Poliquin regarding his suggestion. Tony Brown, City resident, inquired into the progress of the Mission Hill/Mission Flats urgency ordinance. Molly Bogh, Planning Director, reported that a public workshop concerning the issue was scheduled for January 17, 2005. She expected completion of the matter prior to the April 2005 deadline. John Zelco, City resident, commemorated today's date, the anniversary of the attack on Pearl Harbor, December 7, 1941. CONSENT CALENDAR Council Action: Moved by Council Member Soto seconded by Council Member Allevato and carried unanimously, 5-0, to approve items 1, 2, 4 through 9, & 12 as recommended by staff. 1. MOTION TO READ ORDINANCES BY TITLE ONLY APPROVED. 2. MINUTES OF THE REGULAR MEETING OF NOVEMBER 2, 2004 APPROVED AS SUBMITTED. 4 12-7-04 3. ACCOUNTS PAYABLE WARRANTS DATED NOVEMBER 11, 2004, IN THE AMOUNT OF $726,263.35; AND PAYROLL WARRANTS DATED NOVEMBER 19, 2004, IN THE AMOUNT OF $267,236.18, RECEIVED AND FILED. (300.30) This item was removed to allow Council Member Bathgate to abstain. Council Action: Moved by Council Member Soto, seconded by Council Member Allevato, and carried 4-0-1, with Council Member Bathgate abstaining, to receive and file Accounts Payable Warrants dated November 11, 2004, in the amount of $726,263.35; and Payroll Warrants dated November 19, 2004, in the amount of $267,236.18. ROLL CALL AYES: COUNCIL MEMBERS: Allevato, Soto, Swerdlin, Mayor Hart NOES: COUNCIL MEMBERS: None ABSTAIN: COUNCIL MEMBERS Bathgate 4. REPORT OF INVESTMENTS — MONTH ENDING OCTOBER 31, 2004, RECEIVED AND FILED. (350.30) 5. CASH BALANCES BY FUND — OCTOBER 31, 2004, RECEIVED AND FILED. (330.50) 6. RESOLUTION NO. 04-12-07-02, ENTITLED "A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, REVISING ITS CONFLICT OF INTEREST CODE AND INCORPORATING THE STANDARD CONFLICT OF INTEREST CODE PROMULGATED BY THE CALIFORNIA FAIR POLITICAL PRACTICES COMMISSION," ADOPTED. (640.40) 7. DEDICATION OF WATER RIGHTS AND WATER EASEMENTS AS PRESENTED ON THE FINAL MAP FOR TRACT 15924 (CAMINO DEL AVION AND DEL OBISPO) APPROVED; THE CITY CLERK AUTHORIZED TO SIGN THE CERTIFICATE OF ACCEPTANCE ON BEHALF OF THE CITY; AGREEMENT FOR CONSTRUCTION OF WATER FACILITIES WITH NDA DEVELOPMENT, LLC APPROVED; AND THE MAYOR AUTHORIZED TO EXECUTE THE AGREEMENT. (600.30) 8. BUDGET AMENDMENT TO THE 2004-2005 CAPITAL IMPROVEMENT BUDGET APPROVED, TRANSFERRING THE FOLLOWING FUNDS TO RESURFACING DOHENY PARK ROAD AND CAMINO CAPISTRANO 5 12-7-04 PROJECT IN COORDINATION WITH THE CITY OF DANA POINT: A) CAPITAL IMPROVEMENT PROJECT (CIP NO 101 —DEL OBISPO STREET DRIVEWAY ($13,000); B) CIP NO 107 —HIGHLAND DRIVE MONITORING ($7,000); C) CIP NO. 120 — JUNIPERO SERRA ROAD RECONSTRUCTION ($22,000); D) CIP NO. 127 —ARTERIAL STREET REHABILITATION ($35,000); AND E) CIP NO. 135 — CAMINO CAPISTRANO BUS TURN OUT ($35,000); AND REIMBURSEMENT AGREEMENT FOR RESURFACING DOHENY PARK ROAD AND CAMINO CAPISTRANO WITH THE CITY OF DANA POINT FOR A COST NOT TO EXCEED $105,000, APPROVED. (600.30) 9. PRECONSTRUCTION AGREEMENT WITH STEVE OEDEKERK, ESTABLISHING TERMS AND RIGHTS RELATED TO UUD 99-01 APPROVED; AND CONSTRUCTION LICENSE AGREEMENT WITH STEVE OEDEKERK, MODIFYING A BOUNDARY WALL TO ALLOW FORA SIDEWALK AND LIGHTING RELATED TO UUD 99-01, APPROVED. (CIP NO. 144) (600.30) 10. PERSONAL SERVICES AGREEMENT WITH AKM CONSULTING ENGINEERS TO UPDATE THE RECYCLED WATER MASTER PLAN AND FINANCIAL PLAN APPROVED. (600.30) Council Member Swerdlin requested that items 10 & 11 be removed for clarification. Council Member Swerdlin ascertained that the water from the J. B. Latham Plant was non -potable. Council Action: Moved by Council Member Swerdlin, seconded by Council Member Allevato, and carried unanimously, 5-0, to approve the Personal services agreement with AKM Consulting Engineers to update the Recycled Water Master Plan and Financial Plan, in an amount not to exceed $76,600; and $40,000 appropriated from the Recycled Water Capital Improvement Fund to Capital Improvement Project No. 778 11. SECOND AMENDMENT TO THE AGREEMENT WITH REDFLEX TRAFFIC SYSTEMS, INC. APPROVED. (600.30) Council Member Swerdlin ascertained that the number of citations issued by the red light traffic cameras at the intersection of Del Obispo Street and Camino del Avion do not warrant the camera installation. Council Action: Moved by Council Member Swerdlin, seconded by Council Member Allevato, and carried unanimously, 5-0, to approve the Second Amendment to the Agreement with Redflex Traffic Systems, Inc., in the amount of $72,000, for the term of January 1, 2005 to December 31, 2005; and staff to provide accident report for the intersection of Del Obispo Street and Camino del Avion in six months. 6 12-7-04 12. EXECUTION OF A MILLS ACT CONTRACT WITH MR. T. J. MEADOWS FOR THE MAINTENANCE AND PRESERVATION OF THE STROSCHEIN HOUSE AT 31682 EL CAMINO REAL APPROVED. (600.30) PUBLIC HEARINGS 1. RESOLUTION NO. 04-12-07-03 ADOPTED APPROVING THE GENERAL PLAN AMENDMENT (GPA 04-01); AND INTRODUCTION OF AN ORDINANCE APPROVING THE PRE -ZONING CONCERNING WHISPERING HILLS ESTATES UNINCORPORATED TERRITORY ANNEXATION. (440.25/460.20) Description: Conditions of approval attached to the Whispering Hills project, approved by the City Council in July 2004, require annexation of the strip of land between the present City boundary and La Pata Avenue. One of the Local Agency Formation Commission's (LAFCO) requirements is that the property be pre -zoned by the annexing city. A General Plan Amendment is required to ensure the annexed property has the same "Planned Community" designation to maintain consistency with the land uses designated for the area in the Whispering Hills Comprehensive Development Plan. Staff recommended approval of the Resolution and Ordinance. Written Communications: Report dated December 7, 20041 by Molly Bogh, Planning Director. Presentation: Larry Lawrence, Consulting Case Planner, reviewed the staff recommendation. Phillip Schwartze, 31682 EI Camino Real, representing the applicant, briefly described the annexation proposal. Mayor Hart opened the public hearing and there being no public testimony, closed the public hearing. Meg Monahan, City Clerk, read the title of the Ordinance, entitled "AN ORDINANCE OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, APPROVING PREZONING FOR UNINCORPORATED TERRITORY LOCATED ON THE WEST SIDE OF LA PATA AVENUE, APPROXIMATELY ONE MILE SOUTH OF ORTEGA HIGHWAY (WHISPERING HILLS ESTATES - RZ 04-05)." Council Action: Moved by Council Member Swerdlin, seconded by Council Member Allevato and carried unanimously, 5-0, to adopt Resolution No. 04-12- 07-03, entitled "A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, APPROVING A GENERAL PLAN AMENDMENT FOR UNINCORPORATED TERRITORY LOCATED ON THE WEST SIDE OF LA PATA AVENUE APPROXIMATELY ONE MILE SOUTH OF 7 12-7-04 ORTEGA HIGHWAY (WHISPERING HILLS ESTATES — GPA 04-01);" and approve first reading and introduction of an Ordinance approving the pre -zoning. 2. INTRODUCTION OF AN ORDINANCE APPROVING AND ADOPTING A DEVELOPMENT AGREEMENT FOR THE HONEYMAN RANCH -RANCHO MADRINA PROJECT -TRACT MAP 16221 (APN 650-141-01,04, & 14; 650-152- 09; 650-552-03, 04, 06, & 07) (WILLIAM LYON COMPANY, INC.) (600.30) Description: The William Lyon Company requested the City approve a Development Agreement for the Honeyman Ranch -Rancho Madrina project - Tract Map 16221 to develop 119 single-family detached (SFD) lots on a 78.6 acre parcel located along the east side of Rancho Viejo Road and about 200 feet north of Ortega Highway, to guarantee the Lyon Company could develop the subdivision under City requirements in effect at the time the map received final approval; and have assurances that building permits will be issued concurrently with the provision of infrastructure through project build out. Staff recommended Council adopt an Ordinance approving the Agreement. Written Communications: Report dated December 7, 20047 by Molly Bogh, Planning Director. Presentation: William A. Ramsey, Principal Planner, presented the staff recommendation. Public Testimony: Robert Reiss, City resident, was opposed to approving the development agreement due to project -associated drainage and grading problems affecting his property; damage to the eucalyptus trees on the adjacent horse trails; and lack of access to the horse trails for maintenance purposes. Dick Gottroin, City resident, opposed the development agreement due to lack of tree maintenance along a city -owned horse trail adjacent to his property, resulting in dangerous conditions and potential fire and safety hazards. Michael Mosich, City resident, spoke regarding the project associated drainage and grading problems affecting his property. Tom Grable, William Lyon Company, 4490 Von Karman, Newport Beach, requested approval of the development agreement as it is unrelated to drainage concerns expressed by the neighbors. Dave Adams, City Manager, indicated that staff would work with the developer and neighbors affected by drainage and maintenance issues to resolve the problems prior to the Ordinance returning to Council for a second reading and adoption. 8 12-7-04 Meg Monahan, City Clerk, read the title of the Ordinance, entitled "AN ORDINANCE OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, APPROVING AND ADOPTING A DEVELOPMENT AGREEMENT FOR THE HONEYMAN RANCH -RANCHO MADRI NA PROJECT (WILLIAM LYON COMPANY, INC.). )I Council Action: Moved by Mayor Hart, seconded by Council Member Allevato and carried unanimously, 5-0, to approve first reading and introduction of an Ordinance adopting a Development Agreement for Tract Map 16221, Rancho Madrina-Honeyman Ranch. 3. RESOLUTION NO. 04-12-07-04 ADOPTED APPROVING THE MITIGATED NEGATIVE DECLARATION; AND INTRODUCTION OF AN ORDINANCE APPROVING REZONE (RZ) 04-06 AND COMPREHENSIVE DEVELOPMENT PLAN (CDP) 04-01 (ORTEGA RANCH, LLC) (APN 650-142-04 & 650-151-11 & 22) (460.20/420.40) Description: The Ortega Ranch project is located at Avenida Los Cerritos and Rancho Viejo Road and consists of 160,000 square feet of commercial uses and shared parking. The Planning Commission approved Architectural Control (AC 02-04) and Conditional Use Permit (CUP 04-10) at their meeting on November 9, 2004, and recommended Council approval of the zoning actions. The discretionary review process for the project includes changing the zone district designation from Office Commercial to Planned Community; adoption of a Comprehensive Development Plan (CDP 04-01); and approval of the associated Mitigated Negative Declaration. Staff recommended Council adopt the Resolution approving the Mitigated Negative Declaration and approve first reading and introduction of the Ordinance amending the Zoning Map and approving CDP 04- 01. Written Communications: Report dated December 7, 20041 by Molly Bogh, Planning Director. Presentation: William Cunningham, Consulting Project Manager, summarized the staff recommendation. Phillip Schwartze, 31682 EI Camino Real, representing the applicant, provided a project description Steve Sandland, Centra Realty, responded to questions regarding landscape amenities. Mayor Hart opened the public hearing and there being no public testimony, closed the public hearing. 9 12-7-04 . Meg Monahan, City Clerk, read the title of the Ordinance, entitled "AN ORDINANCE OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, AMENDING THE OFFICIAL ZONING MAP AND ADOPTING A COMPREHENSIVE DEVELOPMENT PLAN FOR AN EXISTING 17.8 ACRE PARCEL LOCATED ALONG THE WEST SIDE OF RANCHO VIEJO ROAD, NORTH OF ORTEGA HIGHWAY (APN 650-142-04,650-151-11 & 22)." Council Actions: Moved by Council Member Soto, seconded by Council Member Swerdlin, and carried unanimously, 5-0, to adopt Resolution No. 04-12-07-04, entitled "A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, APPROVING THE MITIGATED NEGATIVE DECLARATION FOR ORTEGA RANCH BUSINESS PARK, A PROPOSED OFFICE COMPLEX ON APPROXIMATELY 18 ACRES OF LAND LOCATED ON THE WEST SIDE OF RANCHO VIEJO ROAD NORTH OF ORTEGA HIGHWAY (APN 650-142-04, 650-151-11 &22)." Moved by Council Member Allevato, seconded by Council Member Swerdlin, and carried unanimously, 5-0, to approve first reading and introduction of an Ordinance amending the Official Zoning Map for the subject property from "OC" (Office Commercial) to "PC" (Planned Community) and approving Comprehensive Development Plan (CDP) 04-01. 4. INTRODUCTION OF ORDINANCE APPROVING REZONE 04-07, AMENDING THE FORSTER CANYON COMPREHENSIVE DEVELOPMENT PLAN, APPROVED. (CENTRA REALTY) (NORTH R&D SITE, 14196, PACIFIC POINT) (460.20/420.40) Description: Centra Realty requested approval of an amendment to the Forster Canyon Comprehensive Development Plan (CDP) 81-01, "R&D" (Research & Development -Office) District Regulations, Section V.D.10.f., Development Standards, to amend subsection 3(a) to allow discretion in maintaining an appropriate proportion between wall plane height and roof height to allow an 8'-0" roof height instead of the 10'0" minimum required; and to amend subsection 8, which requires a minimum landscaped width of 10'0" for single -story and 150" for two-story buildings, to allow less than the minimum required width provided the landscaped area would result in at least equal or greater total landscaped area. Staff has concluded the proposed text amendments are consistent with the purpose and intent of the District and design guidelines; and recommended approval of the Ordinance amending CDP 81-01. Written Communications: Report dated December 7, 20047 by Molly Bogh, Planning Director. Presentation: William A. Ramsey, Principal Planner, summarized the staff report. 10 12-7-04 Steve Sandland, representing Centra Realty, requested approval of the amendments. Mayor Hart opened the public hearing and there being no public testimony, closed the public hearing. Meg Monahan, City Clerk, read the title of the Ordinance, entitled, "AN ORDINANCE OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, AMENDING COMPREHENSIVE DEVELOPMENT PLAN (CDP) 81-017 FORSTER CANYON PLANNED COMMUNITY, "R&D" (RESEARCH AND DEVELOPMENT — OFFICE) DISTRICT STANDARDS." Council Action: Moved by Council Member Bathgate, seconded by Council Member Soto and carried unanimously, 5-0, to approve first reading and introduction of an Ordinance amending Comprehensive Development Plan (CDP 81-01), Forster Canyon Planned Community, "R&D" (Research & Development - Office) District, Section V. D.10.f., Development Standards. RECESS AND RECONVENE Council recessed at 8:47 p.m. to convene to the San Juan Capistrano Community Redevelopment Agency meeting and reconvened at 8:50 p.m. ADMINISTRATIVE ITEMS H1. CITY MANAGER a. 2005 SCHEDULE FOR STREET BANNERS AT DEL OBISPO STREET AND CAMINO CAPISTRANO APPROVED. (410.40) Description: City Council Policy #419 requires City Council approval of the street banner schedule each year. Staff has compiled a list of the requests received from community groups to hang banners at the intersection of Camino Capistrano and Del Obispo. Staff recommended Council approve the 2005 Schedule for Street Banners. Written Communications: Report dated December 7, 20049 by Douglas D. Dumhart, Economic Development Manager. Presentation: Douglas D. Dumhart, Economic Development Manager, reviewed the staff recommendation. Public Comment: Roger Evans, City resident, suggested installation of a stationary community events display board. 11 12-7-04 Douglas D. Dumhart, Economic Development Manager, advised that there may be an opportunity to consider installing a stationary board at the time Camino Capistrano and Del Obispo intersection improvements are considered. Council Member Bathgate ascertained that staff will consult with John Shaw, City Attorney, regarding the insurance requirement and bring back his opinion for Council consideration. Council Action: Moved by Council Member Soto, seconded by Council Member Allevato and carried unanimously, 5-0, to approve the 2005 Schedule for the Street Banners at Del Obispo and Camino Capistrano. b. STAFF DIRECTED TO PROVIDE MORE DETAILED INFORMATION CONCERNING SHORT LISTED OFFERS FOR THE SDG&E TROUBLESMAN'S COTTAGE DISPOSITION. (670.70) Description: Subsequent to the Council declaring the SDG&E Troublesman's Cottage as "surplus" property, the City has received 7 written letters of interest for the cottage. Staff has analyzed the offers received and recommended selection of Offer #3, from Bob and Charlene Goetz, as the preferred party to receive the Troublesman's Cottage. Written Communications: Report dated December 7, 20049 by Douglas Dumhart, Economic Development Manager. Presentation: Douglas Dumhart, Economic Development Manager, reviewed the staff recommendation. Public Comment: Angela Duzich, City resident, supported offer #2 and provided a personal reference for the Bak-Boychuk family. Christy and Greg Bak-Boychuk, Laguna Niguel residents, requested consideration of their offer #2. Council Members discussed several of the offers received with respect to moving and site preparation costs; required relocation permit fees; Los Rios area property costs; relocation impacts on the Los Rios Park design; and financial issues. Council Members asked staff to provide additional information on Offers #2, #3, #5, & #6 and bring back to Council for further consideration. Council Action: Moved by Council Member Soto, seconded by Council Member Swerdlin, and carried unanimously, 5-0, to direct staff to provide more detailed information regarding short-listed offers #2, #37 #5, and #6. 12 12-7-04 ORDINANCES - None COUNCILMANIC ITEMS - None ADJOURNMENT There being no further business, Mayor Soto adjourned the meeting at 9:30 p.m. to Tuesday, January 4, 2005, at 5:30 p.m. for Closed Session and 7:00 p.m. for the Public Business Section, in the City Council Chamber. Respectfully submitted, MARGARET R. MONAHAN, CITY CLERK Approved: January 5, 2005 ATTEST: WYATT HART, MAYOR 13 12-7-04