15-0421_Amd 1 Mod to Water Facilities_LV Pacific Point_TTM 14196RECORDING REQUESTED BY:
32400 Paseo Adelanto
San Juan Capistrano, OA 92675
AND WHEN RECORDED, MAIL TO:
Maria M. Morris, CMC, City Clerk
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Exempt from Recording Fees:
Gov't Code 27383 & 6103
City of San Juan Capistrano
Recorded In Official Records, Orange County
Hugh Nguyen, Clerk-Recorder
NO FEE
*$R0007490204$*
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This Space for Recorder's Use Only
AMENDMENT #1 TO THE AGREEMENT FOR MODIFICATIONS TO WATER
FACILITIES TO SERVE TRACT 14196
THIS AMENDMENT #1 TO THE AGREEMENT FOR MODIFICATIONS TQ, WATER
FACILITIES TO SERVE TRACT 14196 ("Amendment") dated the .0-1 '^dav of Pvipvl\, is entered into by and between LV PACIFIC POINT LLC, a
Delaware limited liability company, whose mailing address is 3121 Michelson Drive,
Suite 200, Irvine, CA 92612, the owner of property known as Pacifica San Juan
Subdivision, specifically referred to under Vested Tentative Tract 14196 and 15609 in
the City of San Juan Capistrano, County of Orange, State of California hereinafter
referred to as "Owner" and the City of San Juan Capistrano, hereinafter referred to as
"City".
RECITALS
WHEREAS, On June 16, 1992, the City granted approvals for Tentative Tract 14196
(Resolution No. 92-6-16-4) which would be divided into multiple final
maps; and
WHEREAS, that certain "AGREEMENT FOR MODIFICATIONS TO WATER
FACILITIES TO SERVE TRACT 14196" ("Original Agreement"), was
entered into by SJD PARTNERS, LTD., a California limited partnership
("Former Owner") and the Capistrano Valley Water District ("District")
and approved by the Capistrano Valley Water District Board on May 4,
1999; and
WHEREAS, The Original Agreement required the Former Owner to design and
construct various alternative water facilities modifications which are over
and beyond the scope of work specified in the original "Water Facilities
Construction and Service Agreement" dated November 3, 1992 in order to
serve Tract 14196 and to compensate for the removal of the 160,000
gallon reservoir at McCracken Hill; and
WHEREAS, Former Owner has completed, and the District has accepted, the
required water facilities modifications stated within the Original
Agreement and as defined within the plans entitled "Pacific Point Water
Facilities Interim Pipeline - McCracken Hill Avenida Calita to Forster
Ranch Road" approved by the District Engineer and the City Engineer of
the City of San Juan Capistrano dated May 5, 1999 (the "Original
Improvement Plans"), with the exception of the 8-inch waterline
replacement with associated improvements as depicted on Sheet 3 of said
Original Improvement Plans; and
WHEREAS, City is the successor agency to the District; and
WHEREAS, City requires that those certain remaining waterline improvements, as
outlined hereafter, be designed and constructed pursuant to City
standards and in coordination with the owner of certain adjacent property
identified as Assessor Parcel Nos. 675-331-(18-21) and 675-341-(09 and
11) (collectively, the "Neely Property"); and
WHEREAS, Owner is the successor-in-interest to Former Owner and the owner of that
certain parcel of land situated in the City of San Juan Capistrano, Orange
County, generally described as Vested Tentative Tract Maps 14196 and
15609; and
WHEREAS, Owner has assumed all of Former Owner's rights and responsibilities
pursuant to the Original Agreement; and
WHEREAS, Owner has requested, and City has agreed, to replace the existing
Performance and Material and Labor Bonds pursuant to the Original
Agreement ("Bonds") with cash security for 100% of the cost of the
remaining waterline improvements as defined within this Amendment;
and
WHEREAS, City and Owner propose to amend the Original Agreement as set forth
herein. All terms not otherwise defined or amended herein shall have the
meaning ascribed in the Original Agreement.
Amendment # 1 To Agreement for
Modifications to Water Facilities To
Serve Tract 14196
Page I 2
NOW THEREFORE, in consideration of the mutual covenants and agreements
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged. City and Owner hereto agree to amend
the following Sections of the Original Agreement as follows:
AGREEMENT
I. CONSTRUCTION AND COMPLETION
1. As set forth below. Owner shall, at its sole cost and expense,
update the Original Improvement Plans (such update, the "Updated
Improvement Plans"), including all remaining waterline facilities not
constructed as required by the Original Improvement Plans. The City
shall provide written notice to Owner (the "Notice") that it shall prepare the
Updated Improvement Plans either in accordance with i) a proposed land
plan submitted by the owner of and related to the Neely Property (the
"Neely Land Plan") or ii) the alignment prescribed in the Original
Improvement Plans, and directing Owner to commence preparation of the
Updated Improvement Plans . The Notice shall include the updated
design parameters and specifications related to the required waterline
improvements. Owner shall, at its sole cost and expense, commence
preparation of the Updated Improvement Plans within thirty (30) days
following receipt of the Notice and use commercially reasonable best efforts
to complete and submit the Updated Improvement Plans to the City
Engineer and Utilities Engineer for review and approval as soon as possible
thereafter. Owner shall, at its sole cost and expense, commence
construction of the remaining waterline improvements as depicted on the
Updated Improvement Plans and as approved by the City Engineer and
Utilities Engineer no later than thirty (30) days from the issuance of all
necessary permits, dedications, easements and supporting documentation
necessary to construct the waterline improvements and shall use
commercially reasonable best efforts to complete the construction of the
waterline improvements as soon as possible thereafter, but in no event later
than January 16, 2017. In the event such Notice is not provided by City to
Owner by January 16, 2016, the City shall provide relief to the Owner
under this Agreement. The City Engineer shall have the delegated
authority to oversee and approve the implementation of this condition,
including any exceptions to or deviations from this condition.
Amendment # 1 To Agreement for
Modifications to Water Facilities To
Serve Tract 14196
Page I 3
2. City shall accept the remaining waterline and waterline facilities as
depicted within the Updated Improvement Plans when inspected and
approved to the satisfaction of the City Engineer and Utilities Engineer, in
accordance with the plans and specifications. Owner agrees to assume full
responsibility for certifying or obtaining certification of the compaction of
backfill within all pipe trench work.
3. Owner shall provide City a traffic control plan, haul route and
access plan, and staging and storage plan as part of the Updated
Improvement Plans. Construction access to the McCracken Hill area shall
be limited to the temporary construction road from the Pacifica San Juan
Project property unless otherwise approved by the City Engineer.
4. This Amendment shall be binding upon and inure to the benefit of
the successors and assigns of Owner and City.
5. In the event of any declaratory or other legal or equitable action
instituted between Owner and City in connection with this Amendment, the
prevailing party shall be entitled to recover from the losing party all of its
costs and expenses, including court costs and reasonable attorneys' fees.
6. Owner shall construct said water facilities in accordance with the
Updated Improvement Plans, City's standard specifications applicable to
all similar public works projects, and under City's inspection.
7. If Owner has not completed the installation and construction of the
remaining waterline work in accordance with the terms of this Amendment,
City has the right to utilize the security described in Article VI below and
complete the work. All work shall be in accordance with City's standard
specifications in effect as of the time the work is performed.
8. Upon acceptance of the permanent water facilities by the City
Engineer and as approved by the City through the filing of the Notice of
Acceptance, the surety amount may be reduced to 50 percent of the original
amount to cover the warranty period of 365 consecutive calendar days from
the date of recordation of the Notice of Acceptance by the County of
Orange. The surety shall be exonerated upon final acceptance of the
permanent water facilities barring any claims arising from the Owner's,
Contractor's, or Subcontractor's work. It shall be incumbent upon Owner to
renew the security prior to its expiration, if applicable.
Amendment #1 To Agreement for
Modifications to Water Facilities To
Serve Tract 14196
Page I 4
II. USE OF WATER
1. Owner hereby expressly agrees that Contractor or any
Subcontractor shall obtain a water meter from the City for any water use for
construction purposes. Owner further 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.
2. In addition to any criminal penalties, and not as a substitute
therefore. City will charge Owner, and Owner agrees to promptly pay City,
$500.00 per day for unmetered use of City's water by Owner, Contractor, or
any Subcontractor, anyone directly or indirectly employed by any of the
above, or anyone for whose acts anyone of them may be liable.
3. Temporary construction meters shall be provided to Owner by City
at the rental rate existing at the time that such meters are provided.
Accounts for the use of jumpers during the construction of the individual
residential units are to be established with City.
4. Owner 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. Notwithstanding the foregoing, the
City will not grant approval for a certificate of occupancy until the permanent
meter in installed.
III. FEES AND CHARGES
Owner shall pay for all applicable required City fees for plan review,
inspection, meters, etc. at the rates specified within the City adopted rate
schedule at the time of the work.
IV. GUARANTEE
Owner hereby guarantees the materials and the workmanship of the water
facilities for a period ending 365 consecutive calendar days after the
acceptance of said permanent water facilities by City. If repairs are
necessary. City shall notify Owner and if Owner declines or is unable to
perform as required by City, Owner 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.
Amendment #1 To Agreement for
Modifications to Water Facilities To
Serve Tract 14196
Page I 5
V. GENERAL
1. Owner herby offers to dedicate to City the water facilities together
with easements as may be reasonably necessary to access such water
facilities.
2. Upon completion of the construction in accordance with the
improvement plans and specifications and the dedication of the easements
set forth in Section V(1), City agrees to accept the water facilities,
whereupon said water facilities shall become property of City.
3. Should either party be required to enforce any of the terms of this
Amendment, it is agreed that the prevailing party shall be entitled to costs
and reasonable attorneys' fees.
VI. SECURITY
Owner shall post a cash security equal to 100% of the cost of the remaining
work estimated at $150,000 as depicted within Exhibit A. The security
described in this Article VI shall be subject to the City's rights set forth in
Article I, Section 7.
VII. COMPLIANCE WITH PUBLIC CONTRACTS LAW
The City is a California municipal corporation in the State of California and is
subject to the provisions of California State law relating to public works
contracts. Therefore, the Owner acknowledges and agrees that all
provisions of California State law applicable to public works contracts are a
part of this Agreement to the same extent as though set forth herein and will
be complied by Contractor or Subcontractors.
VIII. INSURANCE AND INDEMNIFICATION
1. Prior to the commencement of any work pursuant to this
Agreement, Owner (if performing work itself) or Owner's contractors shall
furnish to the City satisfactory evidence of an insurance policy written upon
a form and by a company (which meets with the approval of the City)
insuring the City, its officers, elected and appointed officers, agents, and
employees as additional insureds 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 general liability insurance shall be not less than $2,000,000 per
occurrence and not less than $4,000,000 aggregate. Said policy shall be in
Amendment #1 To Agreement for
Modifications to Water Facilities To
Serve Tract 14196
Page I 6
favor of Owner or its contractors, as primary insureds, and of the City, its
officers, elected and appointed officers, agents, and employees, as
additional insureds, 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 the City
shall have had at least ninety (90) days' notice in writing of such
cancellation.
2. The Owner hereby releases and agrees to defend (with legal
counsel selected by Owner and reasonably acceptable to the City),
indemnify and hold the City harmless from and against any and all injuries
to and deaths of persons and injuries to property, and all claims, demands,
costs, loss, damage and liability, howsoever the same may be caused and
whensoever the same may appear, resulting directly or indirectly from the
performance or nonperformance of any or all work to be done in and upon
the subject property and the premises adjacent thereto pursuant to this
Agreement, and also from any and all injuries to and deaths of persons and
injuries to property or other interests and all claims, demands, costs, loss,
damage, and liability, howsoever the same may be caused and whensoever
the same may appear, either directly or indirectly made or suffered by the
Owner, the Owner's agents, employees, and subcontractors, while
engaged in the performance of said work.
IX. CITY BUSINESS LICENSE
Owner will maintain and pay all fees associated with a business license in
the City of San Juan Capistrano.
X. INDEPENDENT AGENT
1. At all times during the term of this Agreement, Owner shall be an
independent agent and shall not be an employee of the City. City shall have
the right to control Owner only insofar as the results of Owner's services
rendered pursuant to the Agreement; however City shall not have the right
to control the means by which Owner accomplishes services rendered
pursuant to this Agreement.
2. Except as City may specify in writing. Owner shall have no
authority, express or implied, to act on behalf of the City in any capacity as
an agent. Owner shall have no authority, express or implied, pursuant to
this Agreement, bind City to any obligation.
XI. Section XI. of the Original Agreement is deleted in its entirety.
Amendment #1 To Agreement for
Modifications to Water Facilities To
Serve Tract 14196
Page I 7
IN WITNESS WHEREOF, tl^^^ Amendment has been duly executed by the
Owner herein named on the_^2_l__day of AOy i \, 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.
OWNER CITY OF SAN JUAN CAPISTRANO
LV PACIFIC POINT LLC,
a Delaware limited liability company
Bv: ^^^/^p*t^
Name:
Its:
T
Anthony Barsanli
Autnofized stgiMMory
By
Derek Reeve, Mayor
Maria
APPROVED AS TO FORM:
Hans Van Ligten, City Attorney
(Attach Notary Acknowledgement)
Attachment: Exhibit A
PUBLIC AGENCY FORM OF ACKNOWLEDGEMENT
A notary public or other officer completing this certificate
verifies only the identity of the individual who signed the
document, to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of Orange
)
) ss.
City of San Juan Capistrano )
(Gov't Code 40814 & Civil Code 1181)
On April 23, 2015, before me, Maria Morris, City Clerk, personally appeared
Derek Reeve, 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 exeeuted the same in his/her/their authorized capacity (ies),
and that by his/her/there signature on the instrument the person(s), or the entity upon behalf of whieh
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) /\
Maria Morm,N(Zr|y Cferk
WITNESSW
OPTIONAL
Capacity Claimed by Signers Description of Attached Document
Title or Type of Document
Mayor
City Attorney Amendment #1 to the Agreement for Modifications to
Water Facilities to Serve Tract 14196
Title LV Pacific Point LLC
Signer is Representing
City of San Juan Capistrano
OWNER
ACKNOWLEDGMENT
STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK )
On the^ day of -hpFtA^v^ the year 2015 before xp&, the undersigned, a Notary Pu
and for said State, personally appeared yf)__f7)nz7^ /Oz:^/'5^/^j6personallv known to
Public in
me or
proved to me on the basis of satisfactory evidence to be the individual whose name is
subscribed to the within instrument and acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument, the individual, or the person upon behalf
of which the individual acted, executed the instrument.
(Notarial Seal) _/ y f ^Ji ^ U-^ n Jyi^^
Notary Public
LISAA. PHELAN
Notary Public State of New York Qualifieo m New York County RegNo. 01PH6292618 Comfnission Expires Novemtjer 4,2017
Exhibit A
WORKS OF iMPROVEMENT
CERTIFICATION OF PARTIAL COMPLETiON OF IMPROVEiVIENTS
Amendment #1 to the Agreement for Modifications to Water Faculties to Serve Tract 14196
I hereby certify that the following improvements for Pacifica San Juan required by Amendment
#1 to the Agreement for Modifications to Water Facilities to Serve Tract 14196 have been completed to wit:
Schedule of Improvements Total Amount Percent Complete Remaining Amount
or Bond Amount
Water Improvements (McCracken Hills Water
Line) $150,000 0% $150,000
$150,000 0% $150,000
Water Improvements (McCracken Hills Water Line)
The Cash Security is for the amount of One Hundred Fifty Thousand Dollars
( $150,000 ). (100% of Column 4) ^^g^qfESgAT^
SUBMITTED BY ENGINEER OF RECORD
I estimate the total cost of completing the modifications to water facilities to serve Tract 14196 agreed to be
performed by the Owner and Subdividerto be One Hundred Fifty Dollars ($150,000).
DATED: 7:
ACCEPTED BY CITY
DATED:
^ ^
Dotfg Staley (RC^No. 38796)
President
Hunsaker & Associates Irvine, Inc.
HugTT^
Irviri^, CA 92618
'e Kooyman, P.E.
.ssistant Public Works Director
Amendment #1 to the Agreement for Modification to Water Facliltles to Serve Tract 14196
Pacifica San Juan 1 off
Exhibit A