04-1108_FRIESS COMPANY BUILDERS_Deferral of Improvements Agreement RECORDING ;REQUESTED BY:
City of San Juan Capistrano Recorded in Official Records, Orange County
32400 Paseo Adelanto Torte Daly, Clerk-Recorder
San Juan Capistrano, CA 92675 I!�I 1111111111 111111111111111 11F 11111li 111111111 111 NO FEE
AND WHEN RECORDED, MAIL TO: 266400105176211:42am 11/24164
117 92 Al2 7
Margaret R. Monahan, City Clerk 4.903 4.44 0.40 0.04 0.00 0.00 0.00 0.00
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Exempt from Recording Fees:
Gov Code 27383 & 6103
City of San Juan Capistrano
This Space for Recorder's Use Only
Title of Document:
AGREEMENT FOR DEFERRAL. OF IMPRO'V'EMENTS
Architectural Control (4C) 00-06
Serra Vista Office Building
between
THE CITY OF SAN JUAN CAPISTRANO
a California municipal corporation
and
Friess Company Builders, Inc.
Prepared on: November 9, 2004
Agreement for Deferral of Improvements
Agreement for Deferral of improvements Friess Company
November 9, 2004 Page 2 of 5
I. PARTIES AND DATE.
This Agreement for the Deferral of Improvements ("Agreement") is entered into
as of this 8th day of November, 2004, by and between the City of San Juan
Capistrano, a California municipal corporation ("City") and, Friess Company
Builders, Inc. (a corporation) with its principal office located at 31658 Rancho Viejo
Road, Suite S ("Developer"). City and Developer are hereinafter individually referred
to as "Party" and hereinafter collectively referred to as the "Parties."
II. RECITALS.
1. On October 24, 2000 the City of San Juan Capistrano Planning
Commission adopted PC Resolution No. 00-10-24-1 approving Architectural Control
(AC) 00-06, Zone Variance 00-05, and Rezone 00-03. This project approval became
effective on November 7, 2000 and includes the property located at 31658 Rancho
Viejo Road, Suite B comprised of .9 acres and precisely referred to as APN 649-361-07.
2. The application has been approved for construction of a 10,328 square
foot commercial office building.
3. Developer has constructed certain improvements on the Project Site in
accordance with the approval granted by PC Resolution 00-10-24-1,
4. Developer desires to obtain a Temporary Conditional Certificate of
Occupancy for a 10,328 square foot Commercial Office Building on the Project Site in
order to allow utility connections and occupancy of the building.
5. Developer desires to defer the installation of shrubs and groundcover
along the parking lot edge at Camino Capistrano, and the installation of the Historic
Depiction program, and City agrees to such deferment in accordance with the terms
contained herein as agreed to by developer.
III. EXPIRATION OF AGREEMENT.
1. EXPIRATION. This agreement shall expire upon the completion of all the
project improvements required by Resolution PC 00-10-24-1 and issuance of a Final
Certificate of Occupancy, or May 9, 2005, whichever occurs first.
IV. TERMS.
1. AGREEMENT BINDING ON SUCCESSOR IN INTEREST. This
agreement is an instrument affecting the title to or possession of the real property
described in Section 11.1 above. Upon sale or division of the property described in
Exhibit 1, the terms of this Agreement shall apply separately to each parcel, and the
owner of each parcel shall succeed to the obligations imposed on Developer by this
Agreement.
Agreement for Deferral of improvements Friess Company
November 9, 2004 Page 3 of 5
2. INCOMPLETE IMPROVEMENTS TO BE DEFERED. Prior to issuance of
a FINAL Certificate of Occupancy for the Project Site, but no later than May 9, 2005,
whichever occurs first, the following improvements shown on the approved site plan and
established by PC Resolution 00-10-24-1 shall be completed subject to approval of City:
2.1 Installation of shrubs and groundcover along the parking lot
edge at Camino Capistrano which consists of 1 gallon (42) and
5 gallon (145) shrubs and groundcover from flats and a
Historic Depiction Program. In the event said improvements
have not been completed by the expiration date of this
agreement, developer shall be in default of this agreement and
shall be subject to code enforcement action to ensure
completion of the improvements.
3. CASH DEPOSIT. The Cash Deposit for faithful performance, labor, and
materials for improvements submitted by Developer to City in the amount of $71275 00
shall be deemed by City as adequate surety to ensure completion of improvements as
specified in this Agreement. Upon the completion of all improvements cited in Section 2
of this agreement by Developer, and on demand of "Developer" shall process and
refund deposited monies provided herein. The refunded amount shall be equal to the
original deposit amount less the cost of any City completed improvements.
4. INSURANCE. Insurance required herein shall be provided by Admitted
Insurers in good standing with the State of California and having a minimum Best's
Guide Rating of A- Class VII or better.
4.1 Comprehensive General liability.
Throughout the term of this Agreement, Developer shall maintain in full
force and effect Comprehensive General Liability coverage in the following minimum
amounts:
$500,000 property damage;
$500,000 injury to one person/any one occurrence/not limited to
contractual period;
$1 ,000,000 injury to more than one person/any one occurrence/not limited
to contractual period.
4.2 Comprehensive Automobile Liability.
Throughout the term of this Agreement, Developer shall maintain in full
force and effect Comprehensive Automobile Liability coverage, including owned, hired
and non-owned vehicles in the following minimum amounts:
Agreement for Deferral of improvements Friess Company
November 9, 2004 Page 4 of 5
$500,000 property damage;
$500,000 injury to one person/any one occurrence/not limited to
contractual period,
$1,000,000 injury to more than one person/any one occurrence/not limited
to contractual period
4.3 Worker's Compensation.
If Developer intends to employ employees to perform services under this
Agreement, Developer shall obtain and maintain, during the term of this Agreement,
Worker's Compensation Employers liability Insurance in the statutory amount as
required by state law.
4.4 Proof of Insurance Requirements/Endorsement.
Prior to beginning any work under this Agreement, Developer shall submit
the insurance certificates, including the deductible or self-retention amount, and an
additional insured endorsement to the Consultant's general liability and umbrella liability
policies using ISO form CG 20 10 11 85 (in no event with an edition date later than
1990) to the City's General Counsel for certification that the insurance requirements of
this Agreement have been satisfied.
4.5 Notice of Cancel ation/Termination of Insurance.
The above policy/policies shall not terminate, nor shall they be cancelled,
nor the coverage reduced, until after thirty (30) days' written notice is given to City,
except that ten (10) days' notice shall be given if there is a cancellation due to failure to
pay a premium. Notice shall be provided, by hand-delivery or first-class mail (return
receipt requested), to:
Molly Bogh, Planning Director
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
5. INDEMNIFICATION. Developer agrees to protect, defend and hold
harmless City, its elected and appointed officials and employees from any and all
claims, liabilities, expenses or damages of any nature, including attorneys' fees, for
injury or death of any person or damage to property or interference with use of property
and for errors and omissions committed by Developer arising out of or in connection
with the work, operation or activities of Developer, its agents, employees and
subcontractors in carrying out its obligations under this Agreement.
Agreement for Deferral of improvements Friess Company
November 9, 2004 Page 5 of 5
6. QUALITY OF WORK, All improvements as described in the Agreement
shall be constructed and installed pursuant to City review and approval. The
construction plans and specifications for the improvements shall be prepared in
accordance with all applicable federal, state and local laws, ordinances, regulations and
other requirements. In addition, the improvements shall be completed in accordance
with all maps, plans and specifications on file with City, as well as all applicable federal,
state and local laws, ordinances, regulations and other requirements. It is understood
and agreed that all work and improvements done pursuant to this Agreement shall
conform to the standards applicable at the time work is actually commenced.
V. DEMAND TO PERFORM.
1. DEMAND TO PERFORM. Upon default of any obligation hereunder, and at any
time after any such default, City may make written demand upon Developer or its
surety, or both, to immediately remedy the default or complete the improvements. if the
required work is not substantially commenced within ten (10) days of such demand, or if
it is not thereafter diligently prosecuted to a completion acceptable to City within the
time frame contained in the demand, City may then complete all remaining work,
manage for the completion of all remaining work, and/or conduct such remedial activity
as in its sole and absolute discretion it believes is required. All such work or remedial
activity shall be at the sole and absolute expense and obligation of Developer and its
surety, without the necessity of giving any further notice to Developer or surety. City's
right to take such actions shall in no way be limited by the fact that Developer or its
surety may have constructed any of the required improvements at the time of City's
demand for performance. In the event City elects to complete or arrange for completion
of the remaining work and improvements, City may require all work by Developer or its
surety to cease in order to permit adequate coordination by City. In addition, City may
revoke the Temporary Conditional Certificate of Occupancy for the model building,
and/or withhold issuance of any future certificate of occupancy, until the default is
remedied to the satisfaction of City.
THE CITY OF SAN JUAN CAPISTRANO
By: , Planning Director Date: November 9, 2004
FRIESS COMPANY BUILDERS INC.
By: �-- , Daniel L. Friess Date: November 9,
20
Approved as to form: lista ATTEST: agreement-Deferral of
Aj UV
John gl aw, City Attorney Margret Z. Monahan, City Clerk
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
p,.
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County of
On �C � ������' before me,
Date _ Name and Title of Otfloer(e.g.,"Jans Doe,Notary Public')
personally appeared €
Namo,(e)of Signers)
personally known to me
roved to me on the basis of satisfactory
evidence
SUZANNE QUESADA to be the persons) whose names) is/are
CommWill#1474259 subscribed to the within instrument and
Notary Pubtic-Cadittmfp acknowledged to me that he/she/they executed
Char®County the same in his/her/their authorized
My Comm.Expires Mar 4,2008 capacity(ies), and that by his/her/their
signatures) on the instrument the person(s), or
the entity upon behalf of which the person(s)
acted, executed the instrument. i
WITNESS my hand and official seal,
Signature of Notary PuWlc
OPTIONAL
Though the information below is not required bylaw,it may prove valuable to persons retying 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: _ `C'.6 XV fi'.4e.il
Document Date: i t Number of Pages:
Signers) Other Than Named Above:
Capacity(les) Claimed by Signer
Signer's Name:
0
11 Individual 1 Top of m-0m here
❑ Corporate Officer—Title(s):
❑ Partner—❑ Limited 17 General
LJ Attorney-in-Fact
❑ Trustee
❑ Guardian or Conservator
a ❑ Other:
Signer Is Representing:
C�1999 Na ma€Notary Association•9354 Do Soto Ave.,RD.Box 24-02•Ghs%wodh.GA 91373-2402•www.rationair3otary.org Prod.No.5907 Reardar:Call Toll-Free t-800,876.6B27
PUBLIC AGENCY FORM OF ACKNOWLEDGEMENT
State of California )
County of Orange ) ss.
City of San Juan Capistrano )
(Gov't Code 40814 &Civil Code 118 1)
On October 6,2004 before me,Margaret R. Monahan City Clerk personally appeared Molly Bogh
Planning Director, personally known to me to be the persons whose names are subscribed to the
within instrument and acknowledged to me that they executed the same in their authorized capacity,
and that by their signatures on the instrument the persons, or the entity upon behalf of which the
persons acted, executed the instrument.
L)
u WITNESS my hand and official seal.
IR(pStBIMtfC
1A.
e a� vlargaret R. Monahan, City Clerk
OPTIONAL
Capacity Claimed by Signers Description of Attached Document
Planning Director Agreement for deferral of improvements AC
00-06—Serra Vista Office Building
Title Title or Type of Document
Signers are Representing
November 9, 2004
City of San Juan Capistrano Date of Document