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13-1105_COVE ESTATES, LLC_Subdivision Improvement Agreement Tract 16168"W'tAvilly nVl{YV.—W Y. first American Title Compony National Homebuilder Servicq suwvisi w Deporbnem RECORDING REQUESTED BY: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 AND WHEN RECORDED, MAIL TO: Maria Morris, City Clerk City of San Juan Capistrano 32400 Paseo Adelanto Sal I Juan I Capistrano, o, \.+r'% .7GuIli Exempt from Recording Fees: Gov Code 27383 & 6903 Benefits/Requested by: City of San Juan Capistrano Recorded in Official Records, Orange County Hu�IIII�I9II��� I@ 60.w 20130006304698.40vn 1111511 232 403 Al2 F13 18 0.00 0.00 0.00 0.00 51.00 0.00 0.00 0.00 This Space for Recorder's Use Only SUBDIVISION IMPROVEMENT AGREEMENT TRACT 16168 COVE ESTATES, LLC Recarding Requested By: First American Title Company National Homebuilder ServiM Subdivision 06parenent RECORDING REQUESTED BY: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 AND WHEN RECORDED, MAIL TO: Maria Morris, City Clerk City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Exempt from Recording Fees: Gov Code 27383 & 6103 Benefits/Requested by: City of San Juan Capistrano This Space for Recorder's Use Only SUBDIVISION IMPROVEMENT AGREEMENT TRACT 16168 COVE ESTATES, LLC SUBDIVISION IMPROVEMENT AGREEMENT SUBJECT: TRACT MAP 16168 THIS AGREEMENT is made this day of Wiz°- a ° 2013 between the CITY OF SAN JUAN CAPISTRANO, a municipal corporation, State of California, hereinafter referred to as "City" and Cove Estates, LLC, a California Limited Liability Company, whose mailing address is 1105 Quail Street, Newport beach, California 92660, hereinafter referred to as "Subdivider": WHEREAS, Vesting Tentative Tract Map 16168, previously owned by First American Title Company, was conditionally approved by the City Council of the City by Resolution No. 05-11-01-04 and Final Tract Map 16168 was approved by the City Council of the City on February 15, 2011 and recorded with the County Recorder on May 19, 2011 as Instrument No. 2011000250069; and WHEREAS, Subdivider is the current owner of that certain parcel of land situated in the City of San Juan Capistrano, Orange County, generally described as Tract Map 16168, and Subdivider proposes to do and perform certain work of improvement thereon as hereinafter set forth; and WHEREAS, City desires to assure that said proposed improvements will be done in a good workmanlike manner and in accordance with the laws now in force and effect in the City of San Juan Capistrano, California, the terms and conditions of which are incorporated herein by reference; and WHEREAS, Subdivider declares that he is familiar with the pertinent regulations contained in the City Code and in the Subdivision Map Act (Government Code Sections 66410 to 66500) and agrees to comply therewith. NOW THEREFORE, in consideration of the approval and acceptance by the City Council incil of City of said work of improvement and the acceptance of easements therein offered for dedication for street and other public purposes and the covenants herein contained, the parties hereto mutually covenant and agree as follows: 1. General Requirements: Subdivider shall comply with all the conditions of approval set forth in City Council Resolution No. 05-11-01-04 for Tentative Tract Map 16168 and shall, at his own cost and expense, provide all required tests, design work, equipment, materials and labor in order to complete all of the works of improvement (the "Works of Improvement"), set forth in Exhibit "A", to the satisfaction of the City Engineer. Such works of improvement shall include but not be limited to the placement of curb markers at all proposed street catch basin inlet structures in accordance with the applicable National Pollution Discharge Elimination System (NPDES) requirement. be equal to twenty percent (20%) of the landscape architect's estimated construction cost, or a suitable amount determined by the City Engineer. The Landscape and Irrigation Warranty Bond shall be held by the development's Homeowners' Association ("HOA"). All Security Instruments required by this agreement, with the exception of the Landscape and Irrigation Warranty Bond, which is submitted to the development's HOA, shall be kept on file with the City Clerk. The terms of the Security Instruments required by this agreement are hereby incorporated in this agreement by reference. City Engineer shall release the Faithful Performance Bond upon Subdivider's written request following acceptance by City of the Works of Improvement and Subdivider's delivery to City of the Warranty Bond for Works of Improvement. City Engineer shall release the Labor and Materials Bond upon Subdivider's written request and following acceptance by City of the Works of Improvement and after expiration of the time within which lien claims are required to be made pursuant to Article 3 (commencing with Section 3114) of Chapter 2 of Title 15 of Part 4 of Division Third of the California Civil Code. If lien claims have been timely filed, City shall hold the Labor and Materials Bond until (a) such claims have been resolved, (b) Subdivider has provided a statutory bond, or otherwise as required by applicable law. City Engineer shall release the Warranty Bond for Works of Improvement upon Subdivider's written request following the expiration of the warranty period, provided no claims are outstanding at that time regarding defective work. The release of the Landscape and Irrigation Warranty Bond held by the HOA will be determined by a separate agreement between the developer and the HOA. 2.1 Form of Security Instruments. All Security Instruments shall meet the following minimum requirements and otherwise shall be in a form acceptable to the City Attorney: (i) Any insurance company acting as surety shall have a minimum rating of A -IX, as rated by the current edition of Best's Key Rating Guide published by A.M. Best's Company, Oldwick, New Jersey, 08858; any bank acting as surety shall have a minimum rating of AA, as rated by Moody's or Standard & Poor's; (ii) Payments under the Security Instruments shall be required to be made (and, with respect to bonds, litigation shall be 3 3.2 Continuous Work: After commencement of construction of the Works of Improvement (or separable portion thereof), Subdivider shall cause such work to be diligently pursued to completion, and shall not abandon the work for a consecutive period of more than thirty (30) days, events of force majeure excepted. 3.3 Reversion to Acreage: In addition to whatever other rights City may have due to Subdivider's failure to timely perform its obligations hereunder, Subdivider recognizes that City reserves the right to revert the Property to acreage subject to the limitations and requirements set forth in California Government Code Sections 66499.11-66499.20-3/4. In this regard, Subdivider agrees that if none of the Works of Improvement referenced herein have been made within the specified "Time of Completion" referenced in paragraph 3 above or within the time allowed herein, whichever is the later, and if City thereafter initiates proceedings to revert the Property to acreage, any improvements made by or on behalf of Subdivider after the date City initiates such action shall not be considered in determining City's authority to revert the Property to acreage. 4. Effective Date of Agreement: This Agreement shall not become effective unless and until it has been approved by the City Council and also accepted for recordation by the County Recorder of the County of Orange. 5. Utility Deposits - Statement: Prior to the commencement of any work to be performed within the area delineated on the Final Map, the Subdivider must file a written statement with the City Clerk and City Engineer, signed by the Subdivider, to the effect that Subdivider has made all deposits legally required by such public utility corporation for the connection of any and all public utilities to be supplied by such public utility corporation within the subdivision. 6. Permits - Compliance with Law: Subdivider shall, at Subdivider's expense, obtain all necessary permits and licenses for the construction of required improvements, give all necessary notices and pay all fees and taxes required by law. 7. Definitions and Ownership of Improvements: The term "improvements" means: grading, paving, curbs and gutters, pathways, storm drains, sanitary sewers, domestic and non-domestic 5 its tasks, incidental appurtenances, materials, and the like. If any omissions are made of information necessary to carry out the full intent and meaning of the plans and specifications, Subdivider or its contractor shall immediately notify its design engineer who will seek approval of the City Engineer for furnishing of detailed instructions. In the event of any doubt or question arising regarding the true meaning of any of the plans, specifications, or related documents, reference shall be made to the City Engineer whose decision thereon shall be final. 10. Superintendence by Subdivider: Subdivider shall give personal superintendence to the Works of Improvement, or have a competent foreman or superintendent, satisfactory to the City Engineer, on the work at all times during progress, with authority to act for Subdivider. In the event the Subdivider is not exercising satisfactory superintendence, the City Engineer may order suspension of all work within the subdivision until the deficiency is adequately corrected. 11. Repair and Replacements: Subdivider shall replace, or have replaced, or repair, or have repaired, as the case may be, or pay to the owner the entire cost of replacement or repairs, for all survey monuments or for any and all property damaged or destroyed by reason of any work done hereunder, whether such property be owned by the United States or any agency thereof, or the State of California, or any agency or political subdivision thereof, or by the City or by any public or private corporation, or by any person whomsoever or by combination of such owners. Any such repair or replacement shall be completed in a reasonable manner and subject to the approval of the City Engineer and affected property owner. 12. Inspection by City: Subdivider shall at all times maintain proper facilities and provide safe access for inspection by City to all parts of the work and to the shops where the work is in preparation. The Subdivider shall pay the cost of inspections. City's inspector shall have the authority to stop any and all work not in accordance with the requirements contained or referenced in this Agreement. The inspection of the work by City shall not relieve Subdivider or the contractor of any obligations to fulfill this Agreement as herein provided, and unsuitable materials or work may be rejected notwithstanding that such materials or work may have been previously overlooked or accepted. 7 proposed by Subdivider or its contractor(s) shall be binding on City unless approved in writing by the City Engineer. 15. No Warranty by City: The plans and specifications and related documents for the Works of Improvement have been prepared by or on behalf of Subdivider or its consultants or contractors, and City makes no representation or warranty, express or implied, to Subdivider or to any other person regarding the adequacy of the plans or specifications or related documents. 16. Liability for Performance, Injury or Damage: Neither the City nor any of its officers or agents shall be liable to Subdivider or its contractors for any error or omission arising out of or in connection with any work to be performed under this contract. Additionally, the City shall not be liable to the Subdivider or to any other person, firm, or corporation whatsoever, for any injury or damage that may result to any person or property by or from any cause whatsoever in, on, or about the subdivision of said land covered by this Agreement, or any part thereof. 17. Indemnifications and Release: Prior to the commencement of any work pursuant to this contract, Subdivider's contractors shall furnish to City satisfactory evidence of an insurance policy written upon a form and by a company (which meets with the approval of City) insuring City, its officers, agents, and employees against loss or liability which may arise during the work or which may result from any of the work herein required to be done, including all costs of defending any claim arising as result thereof. Minimum liability and property damage insurance shall be not less than $500,000 for all damages arising out of bodily injury to or death of one person and not less than $1,000,000 for all damages arising out of bodily injuries to or death of more than one person in any one occurrence; and not less than $500,000 for all damages and/or destruction of property in any one occurrence and not less than $750,000 for all damages and/or destruction of property during the policy period. Said policy shall be in favor of Subdivider or its contractors and of the City, its officers, agents, and employees and shall be maintained in full force and effect during the life of this Agreement, including extensions. Said policy shall state by its terms and by an endorsement that it shall not be canceled until City shall have had at least ninety (90) days' notice in writing of such cancellation. The Subdivider hereby releases and agrees to defend, indemnify and hold the City harmless from and against any and all injuries to and deaths of V1 of any of the Works of Improvement until all City fees and charges have been fully paid, including, without limitation, charges for applicable penalties and additional required inspections. Subdivider shall compensate the City for all actual costs reasonably incurred in having its authorized representatives make the usual and customary engineering services beyond the specified "Time of Completion" referenced in paragraph 3 above. Said actual costs include: inspection of Works of Improvement, enqineer design review, plan check and project development process. Subdivider agrees to pay the cost of said City services within forty-five (45) days of invoice date, or as determined by the City Engineer. 20. Relationship of Contractors: It is hereby mutually covenanted and agreed by the parties hereto that Subdivider's contractors are not agents of the City, and that the contractors' relations to City, if any, are those of independent contractors. 21. Certification of Satisfactory Completion: Upon the satisfactory completion of the Works of Improvement by the Subdivider, the City Engineer shall certify that the Works of Improvement have been satisfactorily completed. 22. Repairs or Reconstruction of Defective Work: If, within a period of one year after City Council acceptance of the improvement work performed under this Agreement, any of the improvements or work done under this Agreement fails to fulfill any of the requirements of this Agreement, or the specifications referred to herein, Subdivider shall without delay and without any cost to the City (upon receipt of written notice from the City), repair or replace or reconstruct any defective or otherwise unsatisfactory part or parts of the work or structure. Should Subdivider fail to act promptly or in accordance with this requirement, or should the exigencies of the case require repairs or replacements to be made before Subdivider can be notified, City may, at its option, make the necessary repairs or replacements or perform the necessary work and Subdivider shall pay to City the actual cost of such repairs plus an amount equivalent to the current general City overhead costs. 23. Warranty: 11 deemed to have accrued on commencement of the action and shall be enforceable whether or not the action is prosecuted to judgment. 25. Notice of Completion: Upon approval of the Works of Improvement by the City Engineer and acceptance by the City Council, the Subdivider shall file with the Orange County Recorder a Notice of Completion of the improvements herein specified. 26. Filing of Improvement Plans: Upon completion of the job and prior to final acceptance of the Works of Improvement by the City, the Subdivider shall submit to the City Engineer for review and approval, one Mylar (4 mils) set of "record" drawings as well as digital copies of all improvement plans in accordance with the latest edition of the City of San Juan Capistrano Digital Submission Standards. These drawings shall be certified and shall reflect the job as actually constructed, with all changes incorporated therein. 27. Assignment: This agreement shall not be assignable by Subdivider without written consent of City Engineer and City Attorney. IN WITNESS WHEREOF, two (2) identical counterparts of this agreement, each of which shall for all purposes be deemed an original thereof, have been duly executed by the Subdivider herein named on the '' day of 3`F s:;�, , 2013, the name and corporate seal of each corporate party being hereto affixed and these presents duly signed by its undersigned representative(s) pursuant to authority of its governing body. THE COVE ESTATES, LLC a California limited liability company By: Three G Development, LLC a Nevada limited liability company Its Managing Member By: Davi atlas, Its Manager 13 go CITY OF SAN JUAN CAPISTRANO PUBLIC AGENCY FORM OF ACKNOWLEDGEMENT State of California ) County of Orange ) ss. City of San. Juan Capistrano ) (Gov't Code 40814 & Civil Code 1181) On November 5, 2013, before me, Maria Morris, City Clerk, personally appeared John Taylor, Mayor and Hans Van Ligten, City Attorney, who proved to me on the basis of satisfactory evidence to the be person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity, and that by his/her/there signature on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument . I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. (SEAL) OPTIONAL Capacity Claimed by Signers Description of Attached Document Title or Type of Document Mayor and City Attorney Subdivision Improvement Agreement —Tract Map 16168, Cove Estates LLC Title Signers are Representing City of San Juan Capistrano CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of 04011C CIVIL CODE § 1189 On Oyw 6j before me, �V_t3 Mp`o , riovey�- Date Here Insert Nafne and Title of the Officer personally appeared NJIA 0 A S -` Name(s) of Sioner(s) who proved to me on the basis of satisfactory evidence to be the person) whose name is subscribed to the within instrument and acknowledged to me that he/ efttTey executed the same in �/I n"- authorized capacityW, and that by i signature,(,$) o ffie instrument the persono, or the entity upon behalf of which the person�gJ acted, executed the instrument. 4 B�YUN M� AGEE I certify under PENALTY OF PERJURY under the Commission #► 2009675 Notary Public - California laws of the State of California that the foregoing Oranp County F, paragraph is true and correct. Comm. Ex ires Mar�201 i -` WITNESS my hand and official seal. Signature: Place Notary Seal AboveSignature of y Public 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: ❑ Corporate Officer — Title(s): ❑ Individual ❑ Partner — ❑ Limited ❑ General Top of thumb here ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing Number of Pages: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Individual ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing RIGHT THUMBPRINT OF SIGNER Top of thumb here © 2010 National Notary Association • National Notary.org • 1 -800 -US NOTARY (1-800-876-6827) Item #5907 SUBDIVISION IMPROVEMENT AGREEMENT - TRACT 16168 EXHIBIT "A" WORKS OF IMPROVEMENT Type of Improvements: Grading Erosion and Silt Control Street and Related appurtenances Storm Drain Sanitary Sewer Water and related appurtenances (110% of Improvement Cost) Total above Improvements Landscaping and Irrigation 15 Estimated Construction Cost Or Bond Amount Processed through Building Division Processed through Building Division $ 37,000 $ 18,424 $ 23,350 $ 29,414 $ 31,335