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15-1103_PACIFIC POINT DEVELOPMENT PARTNERS, LLC_Agenda Report_F16TO: FROM: DATE: SUBJECT: City of San Juan Capistrano Agenda Report Honorable Mayor and Members of the City Council Thom Coughran, P.E., Acting Public Works and Utilities Director Sergio Klotz, Acting Development Service Dire;tor ~ Prepared by: Charles View, Project Manager ijJ' November 3, 2015 11/3/2015 F16 Consideration of Water Facilities Reimbursement Agreement and Amendment #2 and Termination of the Agreement for Modifications to Water Facilities to Serve Tract 14196, Pacific Point Development Partners LLC (Vested Tentative Tract Maps 14196 and 15609) (Neely Family Trust and Pacific Point Development Partners LLC) RECOMMENDATION: By motion: 1. Approve Amendment #2 to and Termination of the Agreement for Modifications to Water Facilities to Serve Tract 14196 for the Pacifica San Juan Project; and approve Water Facilities Reimbursement Agreement. 2. Direct the City Clerk to process the recordings of the Agreements with the Orange County Recorder. EXECUTIVE SUMMARY: Pacific Point Development Partners LLC ("Owner/Developer") (PPDP) is the current owner of the 416 lot 257-acre Pacifica San Juan/Point Residential Property Development ("Pacifica San Juan Project") associated with Vested Tentative Tract Maps 14196 and 15609. Mr. Jerry W. Neely and Ms. Nancy C. Neely, as Trustees of the Neely Family Trust, own the property known as the "Neely Property" (Assessor Parcel Nos. 675-331-(18-21) and 675-341-(09 and 11). On May 4, 1999, the former developer of the Pacifica San Juan project entered into an Agreement for Modifications to Water Facilities to Serve Tract 14196 ("McCracken Hill Agreement") with the Capistrano Valley Water District (District). This agreement provided for various interim and permanent water facilities modifications to the TTM 14196 water system due to the sites geological failures. The City is the successor agency to the District. On April 21, 2015, the City approved Amendment #1 to the Agreement for Modifications to Water Facilities to Serve Tract 14196 (McCracken Hill Agreement). ' City Council Agenda Report November 3, 2015 Pa e 2 of 7 The City and PPDP are entering into Amendment #2 to and Termination of the Agreement for Modifications to Water Facilities to Serve Tract 14196 (the "Second Amendment") (Attachment 1). This Amendment and Termination Agreement facilitates payment of a One Hundred Fifty Thousand Dollars ($150,000) cash deposit held by the City to the Neely Family Trust. The City and Neely Family are entering into the Water Facilities Reimbursement Agreement (Attachment 2). In exchange for its receipt of the One Hundred Fifty Thousand Dollars ($150,000) from the City, Neely has agreed to fully release the City, PPDP and all other "Release Parties" from and against any and all "Released Claims" arising from, directly or indirectly, any Landslide Damage, the construction of the Remaining Waterline Improvements, or any other obligations of the City, PPDP or any other party set forth in the Water Facilities Agreement. DISCUSSION/ANALYSIS: The project site is generally located in the area bounded by lnterstate-5 to the west, the San Juan Meadows General Location: project to the north, the Lomas San Juan neighborhood , to the east and Camino Las Ramblas to the south (Attachment 5) General Plan Land Use Planned Community (PC) _l)e~nation: Zoning Map Designation: Planned Community (PC) Property: Tract Maps 14196 and 15609; and Assessor Parcel No's. 1 675-331-18, 19, 20 and 21 and 675-341-09 and 11 Owner: Pacific Point Development Partners LLC, a Delaware Limited ~iability Company Surrounding General Plan Designations, Zoning Designations, and Existing Land Uses: Direction General Plan Land Use Zoning Use North Planned Community (PC) . Planned Community (F'_C) Residential South NA NA Public StreeUFreeway __j -Medium Low Density ' East Single Family Residential Residential Residential West NA -NA 1-5 Freeway The Pacifica San Juan Project ("Project") was entitled in June 1992 for the development of 350 dwelling units on 257 acres including single-family residential and multiple-family residential housing as well as ancillary uses within Tentative Tract Map 14196 ("TTM 14196") with Pacific Point Partners, L.P. Additionally Pacific Point Partners, L.P. entered into a Development Agreement with the City as approved by City Ordinance No. 706 on August 6, 1992. Subsequent to the approval of these entitlements, Pacific Point Partners, L.P. transferred all rights, titles, and interest in the Project to SJD Partners, Ltd. ("Former Developer"). City Council Agenda Report November 3, 2015 Pa e 3 of 7 In 2002, the City approved an Amended Development Agreement due to market conditions, site challenges and other factors which delayed the full build-out of the site. Subsequent to this action on September 16, 2003, the Pacifica San Juan Project was divided into two Vested Tentative Tract Maps (VTTM 14196 and VTTM 15609) pursuant to City Resolution 03-09-16-06 with associated Supplemental Environmental Impact Report. This Resolution also approved a rezone entitlement which amended a portion of the Forster Canyon Panned Community Comprehensive Development Plan and modified the existing development and zoning standards and permits up to 416 dwelling units. The revised maps for VTTM 14196 and VTTM 15609 also included the creation of a landslide catch basin to mitigate geotechnical impacts of the project resulting from the prior landslides. During the mid-1990's the Former Developer completed various mass grading efforts within the Pacifica San Juan Project boundary inclusive of slope stabilization work for the active Window Hill landslide area. In the spring of 1998, the area outside the Tract 14196 boundary experienced several major geological failures that altered various slopes surrounding the development. One slide, which occurred on the east-facing slope of the off-site Neely Property, resulted in a settlement agreement between the Former Developer and the Neely Family Trust which required the Former Developer to obtain the necessary grading permits and approvals from the City to repair and restore the property. On May 4, 1999, the Former Developer entered into an Agreement for Modifications to Water Facilities to Serve Tract 14196 ("McCracken Hill Agreement") with the Capistrano Valley Water District (District). This agreement provided for various interim and permanent water facilities modifications to the TTM 14196 water system due to the sites geological failures. The City is the successor agency to the District. In April 2012, LV Pacific Point LLC gained control of the 416 lot remaining 257 acres of the 292-acre Pacifica San Juan/Point Residential Property Development ("Pacifica San Juan Project") associated with Vested Tentative Tract Maps 14196 and 15609 from Former Developer through bankruptcy proceedings. On May 6, 2014, the City approved an Amendment to the Amended and Restated Development Agreement for the Pacifica San Juan Project which extended the term of the agreement to January 16, 2017. On April 21, 2015, the City approved Amendment #1 to the Agreement for Modifications to Water Facilities to Serve Tract 14196 (McCracken Hill Agreement) (Attachment 3) for the development. This amendment served to confirm completion and acceptance of certain water facility improvements and establishing the requirement for completion of the last remaining improvement and posting of a cash deposit in the amount of $150,000 as surety for the remaining improvement, an eight (8) inch waterline replacement for the Neely Property. On May 5, 2015 the City approved the assignment and assumption of various agreements for the Pacifica San Juan Project from LV Pacific Point, LLC to Pacific Point Development Partners, LLC (PPDP). City Council Agenda Report November 3, 2015 Pa e 4 of 7 Over the years, the Neely family has replanted an avocado orchard on the Neely Property which would be negatively impacted by construction of the eight (8) inch waterline. In addition, the Neely family has an approved Development Agreement for their property that could result in the future placement of this waterline in an alternate location. Given these circumstances, the Neely's and the City agree that the Neely family or their successors are in the best position to complete the installation of the waterline on their own schedule in lieu of PPDP completing the installation. This transfer of responsibility requires the execution of two agreements: • AMENDMENT #2 TO AND TERMINATION OF THE AGREEMENT FOR MODIFICATIONS TO WATER FACILITIES TO SERVICES TRACT 14196 between the City and Pacific Point Development Partners, LLC (Attachment 1) • WATER FACILITIES REIMBURSEMENT AGREEMENT between the City and the Neely Family Trust (Attachment 2) The City and PPDP are entering into Amendment #2 to and Termination of the Agreement for Modifications to Water Facilities to Serve Tract 14196 (the "Second Amendment"). PPDP has agreed to release the One Hundred Fifty Thousand Dollars ($150,000) (the "Reimbursement Amount") the City currently holds upon the execution of the Amendment No. 2 document. This release will facilitate payment of the One Hundred Fifty Thousand Dollars ($150,000) by the City to the Neely Family Trust (Neely) as reimbursement in full for any existing or future costs or damages incurred by Neely in connection with the Landslide Damage and/or Neely's construction of the Remaining Waterline Improvements in lieu of PPDP. The City and Neely are entering into the Water Facilities Reimbursement Agreement. In exchange for its receipt of the One Hundred Fifty Thousand Dollars ($150,000) from the City, Neely has agreed to fully release the City, PPDP and all other "Release Parties" from and against any and all "Released Claims" arising from, directly or indirectly, any Landslide Damage, the construction of the Remaining Waterline Improvements, or any other obligations of the City, PPDP or any other party set forth in the Water Facilities Agreement. The execution of these two (2) documents will terminate the City's and PPDP's responsibilities to the Neely property. The City Attorney has reviewed and approved the Amendment No. 2 Agreement and the Water Facilities Agreement. FISCAL IMPACT: The release of the $150,000 cash deposit to the Neely Family Trust terminates City obligations regarding the uncompleted eight (8) inch water line. Pacific Point Development Partners has paid the fees to process the two agreements being considered by the City Council at tonight's meeting. City Council Agenda Report November 3, 2015 Pa e 5 of 7 ENVIRONMENTAL IMPACT: This project has been reviewed in accordance with the California Environmental Quality Act (CEQA) and the City's Environmental Administrator has determined that the project is exempt from further review pursuant to Section 15061(b)(3) of the CEQA Guidelines. The execution of the two agreements does not have the potential to cause significant effects on the environment. PRIOR CITY COUNCIL REVIEW: • On June 16, 1992, the City Council conditionally approved amendments to Comprehensive Development Plan (COP) 81-02, Forster Canyon, and conditionally approved Vesting Tentative Tract Map (TTM) 14196 by City Resolution No. 92-6-16-4, Pacific Point (TMC) to allow the development of 350 dwelling units/lots on the 292 acre site. • On August 6, 1992, the City Council approved a ten year Development Agreement for the project effective through August 6, 2002. • On May 4, 1999, the Capistrano Valley Water District (former water Agency to the City), approved an Agreement for Modifications to Water Facilities to Serve Tract 14196 with SJD Partners, Ltd. • On July 14, 1999, the City Council approved an Improvement and Reimbursement Agreement with SJD Partners, Ltd. • On July 2, 2002, the City Council approved an extension of the 1992 Development Agreement extending the term of the agreement to November 6, 2005. • On September 16, 2003, the City Council conditionally approved amendments to Comprehensive Development Plan (COP) 81-02, Forster Canyon, and conditionally approved Vesting Tentative Tract Map 15609 by City Resolution No. 03-09-16-06, Pacifica San Juan for a portion of the Forster Canyon Planned Community to allow a total of 416 dwelling units on the SunCal portion of the development site. • On September 2, 2003, the City Council approved a Water Facilities Agreement with SJD Partners, Ltd. • On March 16, 2004, the City Council approved an Amendatory Agreement to the Water Facilities Agreement with SJD Partners, Ltd. City Council Agenda Report November 3, 2015 Pa e 6 of7 • On June 15, 2004, the City Council approved the Amended and Restated Development Agreement effective July 16, 2004-July 16, 2014. The extension was to allow for the completion of the construction of the approved residential units and completion of the planned public improvements serving the development. • On July 3, 2004, the City Council approved the Special 4(d) Interim Habitat Loss Implementation Agreement Tentative Tract Map 16750 with SJD Partners Ltd. • On November 1, 2005, the City Council approved the Agreement Establishing Soils Subsidence Remediation Program with SJD Partners Ltd. and the Pacifica San Juan Community Association. • On November 15, 2005, the City Council approved an Amendment to the Improvement and Reimbursement Agreement with SJD Partners Ltd. • On December 6, 2005, the City Council approved the Subdivision Improvement Agreements for Tract Map 14196, 15687, and 16749 with SJD Partners LTD. • On October 17, 2006, the City Council approved the Subdivision Improvement Agreements for Tract Map 15609, 16747, 16750, 16751, and 16752 with SJD Partners Ltd. • On May 6, 2014, the City Council approved the Amendment to the Amended and Restated Development Agreement for the Pacifica San Juan Project between the City and LV Pacific Point LLC to extend it until January 16, 2017. • On April 21, 2015, the City Council approved Amendment #1 and Reinstatement to the Subdivision Improvement Agreements (Tract Maps 14196, 15609, 15687, 16747, 16749, 16750, 16751, and 16752), Amendment #2 and Reinstatement to the Improvement and Reimbursement Agreement, and Amendment #1 to the Agreement for Modifications to Water Facilities to Serve Tract 14196. • On May 5, 2015, the City Council approved the Assignment and Assumption of the Development Agreement, Water Facilities Agreement, Special 4(d) Interim Habitat Loss Implementation Agreement, the Soils Subsidence Remediation Agreement, and Amendment #1 and Reinstatement to Subdivision Improvement Agreements. NOTIFICATION: Neely Family Trust Pacific Point Development Partners LLC City Council Agenda Report November 3, 2015 Pa e 7 of7 ATTACHMENT(S): Attachment 1 -Amendment #2 to and Termination of The Agreement for Modification to Water Facilities to Service Tract 14196 Attachment 2 -Water Facilities Reimbursement Agreement Attachment 3 -Amendment #1 to the Agreement for Modifications to the Water Facilities to Serve Tract 14196 Attachment 4 -Location Map RECORDING REQUESTED BY: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 AND WHEN RECORDED, MAIL TO: MariaM. Morris, CMC, City Clerk City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 1!-xemptfrom Recording Fees: Gov't Code 27383 & 6103 City of San Juan Capistrano This Space for Recorder's Use Only AMENDMENT #2 TO AND TERMINATION OF THE AGREEMENT FOR MODIFICATIONS TO WATER FACILITIES TO SERVE TRACT 14196 THIS AMENDMENT #2 TO AND TERMINATION OF THE AGREEMENT FOR MODIFICATIONS TO WATER FACILITIES TO SERVE TRACT 14196 ("Amendment") dated the day of , 201_ is entered into by and between PACIFIC POINT DEVELOPMENT PARTNERS LLC, a Delaware limited liability company, whose mailing address is I 00 Spectrum Center Drive, Suite 1450, Irvine, CA 92618, 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 "PPDP", and the City of San Juan Capistrano, hereinafter referred to as the "City". WHEREAS, WHEREAS, 073181\7047545v5 RECITALS that certain "AGREEMENT FOR MODIFICATIONS TO WATER FACILITIES TO SERVE TRACT 14196" (the "Original Agreem<mt"), was entered into by SJD PARTNERS, LTD., a California limited partnership ("Former Owner"), and the Capistrano Valley Water District (the "District") and approved by the Capistrano Valley Water District Board on May 4, 1999; and The Original Agreement required 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 ATTACHMENT 1 WHEREAS, Former Owner has completed, and the District has accepted, the required water facilities modifications described within the Original Agreement and as defined within the Original Improvement Plans, with the sole exception of the 8-inch waterline replacement and associated improvements (the "Remaining Waterline Improvements"), as depicted on Sheet 3 of said Original Improvement Plans; and WHEREAS, City is the successor agency to the District; and WHEREAS, City and LV Pacific Point LLC, a Delaware limited liability company ("Fm·mer Owner II"), as successor-in-interest to Fonner Owner, entered into that certain Amendment #I to the Agreement for Modifications to Water Facilities to Serve Tract 14196 (the "First Amendment" and together with the Original Agreement, the "Agreement") dated as of the 21st clay of April, 2015 and recorded on the ls1 clay of May, 2015 as Instrument No. 2015000225901 in the Orange County Recorder's Office, requiring Former Owner II to design and construct the Remaining Waterline Improvements pursuant to City standards and in coordination with Jerry W. Neely and Nancy C. Neely, as trustee of the Neely Family Trust of March 3, 1989 ("Neely"), the owner of the Neely Property; and WHEREAS, Former Owner II, in accordance with Section VI of the First Amendment, replaced the then existing Bonds with cash security in the amount of One Hundred Fifty Thousand Dollars ($150,000) (the "Cash Deposit") to cover the cost of constructing the Remaining Waterline Improvements; and WHEREAS, PPDP is the successor-in-interest to Former Owner II 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 more particularly described on Exhibit ":/:1" attached he:reto (the "J>JPDI.' Property"); and WHEREAS, because Neely has replanted an avocado orchard on the Neely Property, Neely, the City and PPDP agree that Neely is in the best position to complete the Remaining Waterline Improvements, in lieu ofPPDP; and WHEREAS, City and PPDP agree that, in exchange for the termination of the Agreement and the full release of PPDP's obligations under this Agreement including, without limitation, the completion of the Remaining Waterline Improvements, PPDP will contribute the entirety of the Cash Deposit to the City for use by the City to reimburse Neely for any and all existing or future costs, expenses and/or damages incurred by Neely in connection wilth Neely's construction of the Remaining Waterline Improvements in lieu of PPDP (collectively, the "Remaining Waterline Costs"); and WHEREAS, City and PPDP propose to an1end and then tenninate the Agreement as set forth herein. All terms not otherwise defined or amended herein shall have tbe meaning ascribed in the Agreement. 073181\7047545v5 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 PPDP hereto agree to amend the Agreement as follows: AGREEMENT I. REIMBURSEMENT AGREEMENT; CASH DEPOSIT TO NEELY 1. The City shall execute, and shall use reasonable and diligent efforts to cause Neely to execute, that certain Water Facilities Reimbursement Agreement (the "Reimbursement Agreement") in the form attached hereto as Exhibit "B" or otherwise mutually agreed upon by the City and PPDP and delivrcr a fully-executed original of the same to PPDP as soon as reasonably possible. 2. The City and PPDP hereby acknowledge and agree that, immediately upon PPDP's receipt of the fully-executed Reimbursement Agreement, (A) the City shall no longer require that the Cash Deposit be held to secure PPDP's obligations under the Agreement and shall be automatically deemed to have released such security, (B) PPDP shall be automatically deemed to have released the Cash Deposit to the City for the sole purpose of reimbursing Neely for all Remaining Waterline Costs, (C) the City shall within thirty (30) days of execution of the Reimbursement Agreement deliver the entirety of the Cash Deposit to Neely and deliver written confirmation of the same to PPDP, and (D) this Agreement shall automatically terminate in accordance with Section II below. The City's obligation to deliver the Cash Deposit to Neely pursuant to subsection (C) above shall survive the termination of the Agreement. II. TERMINATION 1. The Agreement shall automatically terminate upon PPDP's receipt of the fully- executed Reimbursement Agreement; provided that those provisions of the Agreement whieh expressly state that they survive a termination of the Agreement (collectively, the "Surviving Obligations") shall continue and remain in full force and effect, which provisions include, without limitation, Sections Il(2), Ill and IV of this Amendment. 2. Notwithstanding anything to the contrary provided in the Agreement, upon the automatic termination of the Agreement, the PPDP Property shall be automatically released from the encumbrance, lien, agreements, requirements and obligations of this Agreement without the need for joinder by any pruiy or execution or recordation of any additional document, release, termination, consent, or approval from the City and notwithstanding any failure by the City to deliver the Cash Deposit to Neely in accordance with subsection (C) of Section I(2) above. Upon its receipt of a fully- executed copy of the Reimbursement Agreement, any title insurance company, any title agency and any escrow agent may fully rely on this Section II for purposes of closing transactions and issuing title insurance in order to not include this Agreement as an exception in a title report or title policy. Notwithstanding the foregoing, without affecting the automatic release of the PPDP Prope1iy as provided herein, within seven (7) business days after written request from PPDP or a title company, closing agent or 073181 17047545v5 3 escrow agent, the City shall execute and deliver to PPDP or to a closing escrow for such resale, a release in recordable form acceptable to !'PDP and its title insurance company and instructions to release the Agreement with respect to the PPDP Property, releasing the !'PDP Property from the encumbrance, lien, agreements, requirements, obligations and terms and provisions of the Agreement, notwithstanding any actual or alleged default by !'PDP. This Section II(2) shall survive the termination of the Agreement. Ill. RELEASE 1. The City, for itself, successors-in-interest, assigns, employees, agents, officers, directors, attorneys, representatives and predecessors-in-interest hereby releases, waives, abandons and forever discharges PPDP and their successors··in-interest, partners, members, assigns, affiliates, employees, agents, officr~rs, directors, trustees, attorneys, representatives and predecessors-in-interest (collectively, the "Released Parties") from any requirement to perfonn any further work, including, without limitation, with respect to the Remaining Waterline Improvements, or fulfill any further obligations under the Agreement, and also release, waive, abandon and forever discharge the Released Parties from any and all liabilities, obligations, actions, suits, liens, claims, counterclaims, losses, rights, demands, debts, costs, agreements, damages, controversies, causes of action, expenses and compensation of any kind or nature whatsoever, in law or in equity, known or unknown, fixed or contingent, including without limitation, attorneys' fees and costs, which City may have had or claim to have had, or now have or claim to have, or hereafter may have or assert to have, on account of, or by reason of, or in any way arising out of or resulting directly or indirectly from the Agreement and any documents or agreements referenced therein. Notwithstanding anything to the contrary in this Section III, the releases set forth in this Section shall not release any party from any Surviving Obligations. 2. The City expressly understands and acknowledges that it is possible that unknown losses or claims exist or that present losses may have been underestimated in amount or severity with respect to the matters expressly released by this Amendment, and the City represents and warrants that this uncertainty was taken into account in determining the consideration to be paid for the giving of this Amendment, and that a portion of said consideration having been bargained for between the parties with the knowledge of the possibility of such unknown claims was given in exchange for full accord, satisfaction and discharge of all such claims. The City specifically acknowledges that it is £1miliar with the provisions of California Civil Code Section 1542 which provides as follows: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER, MUST HAVE MATERIAL!. Y AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." City Initials 07318 !\7047545v5 4 The City, being aware of said code section and represented by counsel, hereby expressly waives any right it may have under said code section, as well as under any other statutes or common law principles of similar effect. Notwithstanding the foregoing, the waivers set forth in this Section III shall not (a) release any party from the Surviving Obligations or (b) apply to any claim for fraudulent representation, fraudulent inducement, or similar claim for fraud. This Section III shall survive the termination of the Agreement. IV. NO PRIOR ASSIGNMENT The parties warrant that none of the claims or causes of action covered hereby have been sold, assigned, transferred, or otherwise set over, in whole or in part, to any other person or entity, and that they have the sole right and exclusive authority to execute this Amendment, and each party agrees to indemnify, defend and hold harmless the other parties for any claims advanced in contravention of this warranty. This Section IV shall survive the termination of the Agreement. V. NO ADMISSION OF LIABILITY The performance of any terms of this Amendment shall not be construed as an admission of liability on the part of any of the parties hereto. VI. REPRESENTATION BY COUNSEL Each party to this Amendment hereby confim1s and admits that it has read and understands this Amendment, that it has been fully advised and represented by independent legal counsel with respect to this Amendment and all negotiations giving rise to this Amendment, that it has fully discussed this Amendment and all of its terms, consequences and ramifications with its respective counsel. VII. EXECUTION IN COUNTERPART This Amendment may be executed in several counterparts, and all so executed shall constitute one agreement binding on all parties hereto, notwithstanding that all parties are not signatories to the original or the same counterpart. There shall be no commitment or agreement between the parties until all parties hereto have executed the exact same version of this Amendment. VIII. CONFLICT In the event of any conflict or discrepancy between the Agreement and this Amendment, the provisions of this Amendment shall control. [SIGNATURE PAGE TO FOLLOW] 073!8!17047545v5 5 IN WITNESS WHEREOF, this Amendment has been duly executed by the parties herein named on the day of , 2015, 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. PPDP P AC!FIC POINT DEVELOPMENT PARTNERS LLC, a Delaware limited liability company By: Taylor Monison Pacific Point Holdings, LLC, a Delaware limited liability company Its: Managing Member By: ~ Name: ~a,~,\r.,'L_ Its: \> (Attach Notary Aclmowledgment) Attachment: Exhibit A Exhibit B 07318 I \7047545v5 CITY OF SAN JUAN CAPISTRANO By:----,---------- Derek Reeve, Mayor ATTEST: Maria Morris, City Clerk APPROVED AS TO FORM: ACKNOWLEDGMENT 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 on October 19, 2015 before me, Ashley Jean Moelter, Notary Public (insert name and title of the officer) personally appeared _;_T~o~m~B~a~i~n:e_:::;:============:=~~~-=~-==··-=~· ~·=::;: who proved to me on the basis of satisfactory evidence to be the personjsJ· whose name~ is/?'(e subscribed to the within instrument and acknowledged to me that he/sj;le/tooy executed the same in his/~r/~ir authorized capacily(ies'), and that by his/h¢/thEfir signa!ure(s{on the instrument the person (g), or the entity upon behalf of which the person(!>} 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. WITNESS my hand and official seal. I ' Signature ___ _,':c"\'fV'=:--· _-_~_-""'~, ~----'v = (Seal) 07318117047545v5 Exhibit A Legal Description of PPDP Property [See attached] EXHIBIT "A" Legal Description of the Grantee Property Real property in the City of San Juan Capistrano, County of Orange, State of California, described as follows: PARCEL 1: (APN'S: 675-085-39, 675-085-01 THROUGH 675-085-38, 675-085-47, 675- 085-48, 675-081-19, 675-085-45 AND 675-085-46) LOTS 1, 7 THROUGH 44, INCLUSIVE, AND LETTERED LOTS A THROUGH E, INCLUSIVE, OF TRACT NO. 14196, AS PER MAP RECORDED IN BOOK 875, PAGES 16 THRU 21 INCLUSIVE, OF MISCELLANEOUS MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, AMENDED PURSUANT TO THAT CERTAIN CERTIFICATE OF CORRECTION RECORDED DECEMBER 22, 2008 AS INSTRUMENT NO. 2008000584708 OF OFFICIAL RECORDS. ALSO EXCEPT THEREFROM, AN UNDIVIDED ONE-HALF INTEREST IN ALL THE OIL, GAS AND OTHER HYDROCARBON SUBSTANCES, IN, UPON AND UNDER SAID LAND, TOGETHER WITH THE INCOME ACCRUING HEREFROM, AS RESERVED BY HOWARD L. KRUM AND FAY WILSON KRUM, HUSBAND AND WIFE, BY DEED RECORDED JUNE 6, 1956, IN BOOK 3538, PAGE 550 OF OFFICIAL RECORDS, AND RERECORDED JULY 20, 1956, IN BOOK 3584, PAGE 339, OF OFFICIAL RECORDS. ALSO EXCEPT THEREFROM ALL WATER RIGHTS AS DEDICATED TO THE CITY OF SAN JUAN CAPISTRANO ON THE MAP OF TRACT NO. 14196. PARCEL 2: (APN'S: 675-444-01 THROUGH 675-444-23, 675-444-24, 675-444-25, 675- 442-05 THROUGH 675-442-07) LOTS 1 THROUGH 23, INCLUSIVE, AND LETTERED LOTS A, B, AND D THROUGH F, INCLUSIVE, OF TRACT NO. 15609, AS PER MAP RECORDED IN BOOK 885, PAGES 37 THRU 44 INCLUSIVE, OF MISCELLANEOUS MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. EXCEPT THEREFROM ALL WATER RIGHTS AS DEDICATED TO THE CITY OF SAN JUAN CAPISTRANO ON THE MAP OF TRACT NO. 15609. PARCEL 3: (APN'S: 675-081-17,675-081-20, 675-081-22, 675-411-74, 675-081-21,675- 081-23, 675-411-72, 675-081-18) LOTS 1 AND 2, INCLUSIVE, AND LETTERED LOTS A THROUGH E, INCLUSIVE, OF TRACT NO. 15687, AS PER MAP RECORDED IN BOOK 875, PAGES 1 THRU 5, INCLUSIVE, OF MISCELLANEOUS MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. ALSO EXCEPT THEREFROM, AN UNDIVIDED ONE-HALF INTEREST IN ALL THE OIL, GAS AND OTHER HYDROCARBON SUBSTANCES, IN, UPON AND UNDER SAID LAND, TOGETHER WITH THE INCOME ACCRUING HEREFROM, AS RESERVED BY HOWARD L. KRUM AND FAY WILSON KRUM, HUSBAND AND WIFE, BY DEED RECORDED JUNE 6, 1956, IN BOOK 3538, PAGE 550 OF OFFICIAL RECORDS, AND RERECORDED JULY 20, 1956, IN BOOK 3584, PAGE 339, OF OFFICIAL RECORDS. 07318117082795v2 1 ALSO EXCEPT THEREFROM ALL WATER RIGHTS AS DEDICATED TO THE CITY OF SAN JUAN CAPISTRANO ON THE MAP OF TRACT NO. 15687. PARCEL 4: (APN'S: 675-443-02, 675-443-01, 675-441-01, 675-443-03, 675-442-04, 675- 441-05, 675-442-01, 675-441-03, 675-441-02) LOTS 1 AND 2, INCLUSIVE, AND LETTERED LOTS A, B, AND D THROUGH H, INCLUSIVE, OF TRACT NO. 16747, AS PER MAP RECORDED IN BOOK 885, PAGES 10 THRU 18 INCLUSIVE, OF MISCELLANEOUS MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. ALSO EXCEPT THEREFROM ALL WATER RIGHTS AS DEDICATED TO THE CITY OF SAN JUAN CAPISTRANO ON THE MAP OF TRACT NO. 16747. PARCEL 5: (APN'S: 675-411-75 AND 675-411-71) LETTERED LOTS A AND B, INCLUSIVE, OF TRACT NO. 16748, AS PER MAP RECORDED IN BOOK 875, PAGES 6 THRU 10 INCLUSIVE, OF MISCELLANEOUS MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. ALSO EXCEPT THEREFROM, AN UNDIVIDED ONE-HALF INTEREST IN ALL THE OIL, GAS AND OTHER HYDROCARBON SUBSTANCES, IN, UPON AND UNDER SAID LAND, TOGETHER WITH THE INCOME ACCRUING HEREFROM, AS RESERVED BY HOWARD L. KRUM AND FAY WILSON KRUM, HUSBAND AND WIFE, BY DEED RECORDED JUNE 6, 1956, IN BOOK 3538, PAGE 550 OF OFFICIAL RECORDS, AND RERECORDED JULY 20, 1956, IN BOOK 3584, PAGE 339, OF OFFICIAL RECORDS. ALSO EXCEPT THEREFROM ALL WATER RIGHTS AS DEDICATED TO THE CITY OF SAN JUAN CAPISTRANO ON THE MAP OF TRACT NO. 16748. PARCEL 6: (APN'S: 675-421-07 THROUGH 675-421-13, 675-431-18 THROUGH 675-431- 33, 675-431-38, 675-421-19, 675-431-39, 675-431-34 THROUGH 675-431-37, 675-421- 16, 675-421-18 AND 675-351-17) LOTS 16 THROUGH 38, INCLUSIVE, AND LETTERED LOTS A THROUGH J, INCLUSIVE, OF TRACT NO. 16750, AS PER MAP RECORDED IN BOOK 883, PAGES 1 THRU 10 INCLUSIVE, OF MISCELLANEOUS MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. ALSO EXCEPT THEREFROM, AN UNDIVIDED ONE-HALF INTEREST IN ALL THE OIL, GAS AND OTHER HYDROCARBON SUBSTANCES, IN, UPON AND UNDER SAID LAND, TOGETHER WITH THE INCOME ACCRUING HEREFROM, AS RESERVED BY HOWARD L. KRUM AND FAY WILSON KRUM, HUSBAND AND WIFE, BY DEED RECORDED JUNE 6, 1956, IN BOOK 3538, PAGE 550 OF OFFICIAL RECORDS, AND RERECORDED JULY 20, 1956, IN BOOK 3584, PAGE 339, OF OFFICIAL RECORDS. ALSO EXCEPT THEREFROM ALL WATER RIGHTS AS DEDICATED TO THE CITY OF SAN JUAN CAPISTRANO ON THE MAP OF TRACT NO. 16750. PARCEL 7: (APN'S: 675-451-01 THROUGH 675-451-22, 675-451-25, 675-451-26, 675- 451-28 THROUGH 675-451-31) LOTS 1 THROUGH 22, INCLUSIVE, AND LETTERED LOTS A, B, D, E, G AND H, OF TRACT 073181\7082795v2 2 NO. 16751, AS PER MAP RECORDED IN BOOK 885, PAGES 19 THRU 23 INCLUSIVE, OF MISCELLANEOUS MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. EXCEPT THEREFROM ALL WATER RIGHTS AS DEDICATED TO THE CITY OF SAN JUAN CAPISTRANO ON THE MAP OF TRACT NO. 16751. PARCEL 8: (APN'S: 675-471-01 THROUGH 675-471-41, 675-461-01 THROUGH 675-461- 52) LOTS 1 THROUGH 82, INCLUSIVE, AND LETTERED LOTS A THROUGH I, INCLUSIVE, OF TRACT NO. 16752, AS PER MAP RECORDED IN BOOK 885, PAGES 24 THRU 36 INCLUSIVE, OF MISCELLANEOUS MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. ALSO EXCEPT THEREFROM, AN UNDIVIDED ONE-HALF INTEREST IN ALL THE OIL, GAS AND OTHER HYDROCARBON SUBSTANCES, IN, UPON AND UNDER SAID LAND, TOGETHER WITH THE INCOME ACCRUING HEREFROM, AS RESERVED BY HOWARD L. KRUM AND FAY WILSON KRUM, HUSBAND AND WIFE, BY DEED RECORDED JUNE 6, 1956, IN BOOK 3538, PAGE 550 OF OFFICIAL RECORDS, AND RERECORDED JULY 20, 1956, IN BOOK 3584, PAGE 339, OF OFFICIAL RECORDS. ALSO EXCEPT THEREFROM ALL WATER RIGHTS AS DEDICATED TO THE CITY OF SAN JUAN CAPISTRANO ON THE MAP OF TRACT NO. 16752. 07318l\7082795v2 3 073!8!\7047545v5 Exhibit B Form of Reimbursement Agreement [See attached] 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 City of San Juan Capistrano Title of Document: EXHIBIT B This Space for Recorder's Use Only WATER FACILITIES REIMBURSEMENT AGREEMENT between Jerry W. Neely and Nancy C. Neely, as Trustees of the Neely Family Trust of March 3, 1989 and City of San Juan Capistrano (Assessor Parcel Numbers: 675-331-19, 20, 21 & 22 and 675-341-08, 09, 10 & 11) ATTACHMENT 2 WATER FACILITIES REIMBURSEMENT AGREEMENT THIS WATER FACILITIES REIMBURSEMENT AGREEMENT (the "Agreement") is made as of , 2015, by and between Jerry W. Neely and Nancy C. Neely, as Trustees of the Neely Family Trust of March 3, 1989 ("Neely"), and the City of San Juan Capistrano (the "City"). Neely and the City may be referred to herein individually as a "Party" and collectively as the "Parties". RECITALS This Water Facilities Reimbursement Agreement is made and entered into on the basis of the following facts and understandings of the parties hereto: WHEREAS, Neely owns that certain real property in the City of San Juan Capistrano, County of Orange, State of California, identified as Assessor Parcel Nos. 675-331-(19 - 22) and 675-341-(08-II) (collectively, the "Neely Property"); and WHEREAS, portions of the Neely Property were damaged due to a landslide in the area, including, without limitation, a certain 8-inch waterline and associated improvements that had serviced the Neely Property (collectively, the "Landslide Damage"); and WHEREAS, the Capistrano Valley Water District (the "District"), as predecessor-in-interest to the City, and S.TD PARTNERS, LTD., a California limited partnership ("Former Owner") entered into that certain "AGREEMENT FOR MODIFICATIONS TO WATER FACILITIES TO SERVE TRACT 14196" (the "Original Agreement"), which was approved by the Capistrano Valley Water District Board on May 4, 1999, in order to, among other matters, address the repair of the Landslide Damage on the Neely Property; and WHEREAS, Former Owner has completed, and the District has accepted, the required water facilities modifications stated within the Original Agreement, with the exception of an 8-inch waterline replacement and associated improvements (the "Remaining Waterline Improvements"); and WHEREAS, the City, as successor-in-interest to the District, and LV Pacific Point LLC, a Delaware limited liability company ("Former Owner II"), as successor-in- interest to Former Owner, entered into that certain Amendment #I to the Agreement for Modifications to Water Facilities to Serve Tract 14196 (the "First Amendment") dated as of the 21 51 date of April, 2015, and recorded on the I st day of May, 2015, as Instrument No. 2015000225901 in the Orange County Recorder's Office, requiring Former Owner II to design and construct the Remaining Waterline Improvements pursuant to City standards and in coordination with Neely; and WHEREAS, because Neely has replanted an avocado orchard on the Neely Property, Neely and the City agree that Neely is in the best position to complete the Remaining 073181\7053458v3 S-1 Waterline Improvements on its own schedule in lieu of Pacific Point Development Partners LLC, a Delaware limited liability company ("PPDP"), as successor-in-interest to Former Owner II; and WHEREAS, the City and PPDP entered into that certain Amendment #2 to and Termination of the Agreement for Modifications to Water Facilities to Serve Tract 14196 (the "Second Amendment" and together with the Original Agreement and the First Amendment, collectively, the "Water Facilities Agreement"), pursuant to which PPDP has agreed· to release One Hundred Fifty Thousand Dollars ($150,000) (the "Reimbursement Amount") to the City upon its receipt of a fully-executed original of this Agreement, in order to facilitate payment of the Reimbursement Amount by the City to Neely as reimbursement in full for any existing or future costs or damages incurred by Neely in connection with the Landslide Damage and/or Neely's construction of the Remaining Waterline Improvements in lieu ofPPDP; and WHEREAS, in exchange for its receipt of the Reimbursement Amount from the City, Neely has agreed to fully release the City, PPDP and all other "Release Parties" (as defined below) from and against any and all "Released Claims" (as defined below) arising from, directly or indirectly, any Landslide Damage, the construction of the Remaining Waterline Improvements, or any other obligations of the City, PPDP or any other party set forth in the Water Facilities Agreement. NOW, THEREFORE, in consideration of the mutual promises contained herein, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereto hereby agree as follows: AGREEMENT I. CONSTRUCTION OF THE REMAINING WATERLINE IMPROVEMENTS; ACCEPTANCE OF REIMBURSEMENT AMOUNT Neely acknowledges and agrees that, notwithstanding anything to the contrary set forth in the Water Facilities Agreement, Neely shall be solely responsible for constructing the Remaining Waterline Improvements, in lieu of PPDP or any other party, at its sole cost and expense; provided, however, within thirty (30) business days of Neely's execution and delivery of this Agreement to the City, the City shall deliver the Reimbursement Amount to Neely in immediately available funds for purposes of reimbursing Neely for any existing or future costs or damages incurred by Neely in connection with the Landslide Damage or the construction of the Remaining Waterline Improvements. Notwithstanding the amount of any actual costs or damages incurred by Neely in connection the Landslide Damage or the construction of the Remaining Waterline Improvements (the "Actual Costs Amount"), whether the Actual Costs Amount is ultimately higher or lower than the Reimbursement Amount, Neely hereby acknowledges and agrees Neely shall only be entitled to such Reimbursement Amount and shall be expressly prohibited from seeking any further reimbursement or damages amounts from the City or PPDP in connection with the Landslide Damage or the construction of the Remaining Waterline Improvements as shown in Exhibits A and B attached hereto .. 073181\7053458v3 S-2 II. RELEASE A. Neely, for itself, successors-m-mterest, partners, members, assigns, affiliates, employees, agents, officers, directors, trustees, attorneys, representatives and predecessors-in-interest hereby releases, waives, abandons and forever discharges the City and PPDP and their successors-in-interest, partners, members, assigns, affiliates, employees, agents, officers, directors, trustees, attorneys, representatives and predecessors-in-interest (collectively, the "Released Parties") from any requirement to perform any further construction work or fulfill any further obligations under the Water Facilities Agreement, including, without limitation, completing the Remaining Waterline Improvements, and also release, waive, abandon and forever discharge the Released Parties from any and all liabilities, obligations, actions, suits, liens, claims, counterclaims, losses, rights, demands, debts, costs, agreements, damages, controversies, causes of action, expenses and compensation of any kind or nature whatsoever, in law or in equity, known or unknown, fixed or contingent, including without limitation, attorneys' fees and costs, which Neely may have had or claim to have had, or now have or claim to have, or hereafter may have or assert to have, on account of, or by reason of, or in any way arising out of or resulting directly or indirectly from any Landslide Damage, the construction of the Remaining Waterline Improvements, or any other obligations set forth in the Water Facilities Agreement and any documents or agreements referenced therein (collectively, the "Released Claims"). B. Neely expressly understands and acknowledges that it is possible that unknown losses or claims exist or that present losses may have been underestimated in amount or severity with respect to the matters expressly released by this Agreement, and said party represents and warrants that this uncertainty was taken into account in determining the consideration to be paid for the giving of this Agreement, and that a portion of said consideration having been bargained for between the parties with the knowledge of the possibility of such unknown claims was given in exchange for full accord, satisfaction and discharge of all such claims. Neely specifically acknowledges that it is familiar with the provisions of California Civil Code Section 1542 which provides as follows: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER, MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." Neely Initials Trustee Neely Family Trust Initials __ _ All of the parties, being aware of said code section and represented by counsel, hereby expressly waives any right it may have under said code section, as well as under any other statutes or common law principles of similar effect. Notwithstanding the foregoing, the waivers set forth in this Section II shall not (a) release any party from any claim 073 I 8 J\7053458v3 S-3 arising out of a violation of this Agreement; or (b) apply to any claim for fraudulent representation, fraudulent inducement, or similar claim for fraud. III. NO PRIOR ASSIGNMENT The parties warrant that none of the claims or causes of action covered hereby have been sold, assigned, transferred, or otherwise set over, in whole or in part, to any other person or entity, and that they have the sole right and exclusive authority to execute this Agreement, and each party agrees to indemnifY, defend and hold harmless the other parties for any claims advanced in contravention of this warranty. IV. NO ADMISSION OF LIABILITY The performance of any terms of this Agreement shall not be construed as an admission ofliability on the part of any of the parties hereto. V. REPRESENTATION BY COUNSEL Each party to this Agreement hereby confirms and admits that it has read and tmderstands this Agreement, that it has been fully advised and represented by independent legal counsel with respect to this Agreement and all negotiations giving rise to this Agreement, that it has fully discussed this Agreement and all of its terms, consequences and ramifications with its respective counsel. VI. INTEGRATION CLAUSE This Agreement contains the entire agreement and understanding between the Parties concerning its subject matter and integrates and supersedes all other agreements of any kind relating to the subject matter of this Agreement. Each of the undersigned warrants that no promise or inducement has been offered to him or her except as set forth herein. This Agreement is executed without reliance upon any statement or representation by the Released Parties, or their representatives, concerning the nature and extent of injuries, damages, or legal liability therefor. This Agreement may only be amended and/or modified in writing and only after unanimous written consent by all affected Settling Parties. VII. COMPLETE DEFENSE This Agreement may be asserted as a complete defense to any claim that may be brought relating to any matter released herein. Vlll. ENFORCEMENT COSTS If any action in law or in equity, including an action for declaratory or injunctive relief, is brought to enforce or interpret the provisions of this Agreement, the prevailing party shall be entitled to all of its reasonable attorneys' fees and litigation costs in prosecuting or defending that action. 07318117053458v3 S-4 IX. CALIFORNIA LAW This Agreement shall be construed according to the laws of the State of California. X. EXECUTION IN COUNTERPART This Agreement may be executed in several counterparts, and all so executed shall constitute one agreement binding on all parties hereto, notwithstanding that all parties are not signatories to the original or the same counterpart. There shall be no commitment or agreement between the parties until all parties hereto have executed the exact same version of this Agreement. [SIGNATURE PAGE TO FOLLOW] 07318l\7053458v3 S-5 IN WITNESS WHEREOF, this Agreement has been duly executed by the Parties herein named on the date set forth on the first page above, and duly signed by its undersigned representative(s) pursuant to authority of its governing body. 073 J 8 J\7053458v3 CITY OF SAN JUAN CAPISTRANO By:_-::--.--.--...,--,------ Derek Reeve, Mayor ATTEST: Maria Morris, City Clerk APPROVED AS TO FORIVI: JeffreyS. Ballinger, City Attorney [SIGNATURES CONTINUED ON FOLLOWING PAGE] S-1 NEELY NEELY FAMILY TRUST OF MARCH 3, 1989 By: ----::-:c-:--::-::-------::-:--c:-::--:----:-,---::::-----::c:-::----:----:----:-:- Jerry W. Neely, as trustee of the Neely Family Trust of March 3, 1989 By :---c-----:-:-:----:-----::----:---:---:::-----:-=---c:c:--::---:-:---:--::-::-Nancy C. Neely, as trustee of the Neely Family Trust of March 3, 1989 Jerry W. Neely and Nancy C. Neely each hereby expressly acknowledge that this Agreement is bonding on each such Party in his or her individual capacity as the sole settlors of the Neely Family Trust of March 3, 1989 By: _____ c-----,----:---,--- Jerry W. Neely, an individual By: ____________ _ Nancy C. Neely, an individual 07318117053458v3 S-2 Exhibit A WOI!'I:KS OF IMPROVEMENT CERTIFICATION OF PARTIAL COMPLETION OF IMF'ROVI:M.ENTS I hereby certify that the improvements Pa<>illc:a San Juan Amendment #1 to the Agreement for Modifications to Water Facilities to Serve 14198 have been completed to wit: Schedule of Improvements Total Amount Percent Complete Remaining Amount or Bond Amount Water Improvements (McCracken Hills Water Une) $150,000 0% $150,000 $150,000 0% $150 000 Water Improvements (McCracken Hilll!i Water Line) The Security is for the amount of ( $150,000 ). {100% of ENGINEER OF RECORD I estimate the total coat completing the modifications to water to serve Tract 14196 agreed to be performed by the OWner and Subdivider to be One Hundred Fifty Oollam DATED Pa-cif~ San Juan President Hunsaker & Associates ~19\lgftes lrvi ,CA 92618 Inc. 1 on Exhibit A EXHIBIT B LOT SIJM!lifARY ~ ~ ~ l ~ t I 1 ,.,. rr [ ..• lr ,,,. '.' "-'<·_,._ ~ -· ""'' "'"'"""" 3.2~ St:-GfiOH A-A sml<>f9-< :'t:s~ ~SlDT ~ .... -~ PREPARED BY: NEB. y FAMI.. y Neely Development Plan '""''"" ''"~''"''' ~~~~~~ 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 City of San Juan Capistrano Title of Document: This Space for Recorder's Use Only WATER FACILITIES REIMBURSEMENT AGREEMENT between Jerry W. Neely and Nancy C. Neely, as Trustees of the Neely Family Trust of March 3, 1989 and City of San Juan Capistrano (Assessor Parcel Numbers: 675-331-19, 20, 21 & 22 and 675-341-08, 09, 10 & 11) ATTACHMENT 2 WATER FACILITIES REIMBURSEMENT AGREEMENT THIS WATER FACILITIES REIMBURSEMENT AGREEMENT (the "Agreement") is made as of , 2015, by and between Jerry W. Neely and Nancy C. Neely, as Trustees of the Neely Family Trust of March 3, 1989 ("Neely"), and the City of San Juan Capistrano (the "City"). Neely and the City may be referred to herein individually as a "Party" and collectively as the "Parties". RECITALS This Water Facilities Reimbursement Agreement is made and entered into on the basis of the following facts and understandings of the parties hereto: WHEREAS, Neely owns that certain real property in the City of San Juan Capistrano, County of Orange, State of California, identified as Assessor Parcel Nos. 675-331-(19 - 22) and 675-341-(08-II) (collectively, the "Neely Property"); and WHEREAS, portions of the Neely Property were damaged due to a landslide in the area, including, without limitation, a certain 8-inch waterline and associated improvements that had serviced the Neely Property (collectively, the "Landslide Damage"); and WHEREAS, the Capistrano Valley Water District (the "District"), as predecessor-in-interest to the City, and SJD PARTNERS, LTD., a California limited partnership ("Former Owner") entered into that certain "AGREEMENT FOR MODIFICATIONS TO WATER FACILITIES TO SERVE TRACT 14196" (the "Original Agreement"), which was approved by the Capistrano Valley Water District Board on May 4, 1999, in order to, among other matters, address the repair of the Landslide Damage on the Neely Property; and WHEREAS, Former Owner has completed, and the District has accepted, the required water facilities modifications stated within the Original Agreement, with the exception of an 8-inch waterline replacement and associated improvements (the "Remaining Waterline Improvements"); and WHEREAS, the City, as successor-in-interest to the District, and LV Pacific Point LLC, a Delaware limited liability company ("Former Owner II"), as successor-in- interest to Former Owner, entered into that certain Amendment #I to the Agreement for Modifications to Water Facilities to Serve Tract 14196 (the "First Amendment") dated as of the 21st date of April, 2015, and recorded on the !51 day of May, 2015, as Instrument No. 2015000225901 in the Orange County Recorder's Office, requiring Former Owner II to design and construct the Remaining Waterline Improvements pursuant to City standards and in coordination with Neely; and WHEREAS, because Neely has replanted an avocado orchard on the Neely Property, Neely and the City agree that Neely is in the best position to complete the Remaining 07318!17053458v3 S-1 Waterline Improvements on its own schedule in lieu of Pacific Point Development Partners LLC, a Delaware limited liability company ("PPDP"), as successor-in-interest to Former Owner II; and WHEREAS, the City and PPDP entered into that certain Amendment #2 to and Termination of the Agreement for Modifications to Water Facilities to Serve Tract 14196 (the "Second Amendment" and together with the Original Agreement and the First Amendment, collectively, the "Water Facilities Agreement"), pursuant to which PPDP has agreed to release One Hundred Fifty Thousand Dollars ($150,000) (the "Reimbursement Amount") to the City upon its receipt of a fully-executed original of this Agreement, in order to facilitate payment of the Reimbursement Amount by the City to Neely as reimbursement in full for any existing or future costs or damages incurred by Neely in connection with the Landslide Damage and/or Neely's construction of the Remaining Waterline Improvements in lieu of PPDP; and WHEREAS, in exchange for its receipt of the Reimbursement Amount from the City, Neely has agreed to fully release the City, PPDP and all other "Release Parties" (as defined below) from and against any and all "Released Claims" (as defined below) arising from, directly or indirectly, any Landslide Damage, the construction of the Remaining Waterline Improvements, or any other obligations of the City, PPDP or any other party set forth in the Water Facilities Agreement. NOW, THEREFORE, in consideration of the mutual promises contained herein, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereto hereby agree as follows: AGREEMENT I. CONSTRUCTION OF THE REMAINING WATERLINE IMPROVEMENTS· ACCEPTANCE OF REIMBURSEMENT AMOlJNT Neely acknowledges and agrees that, notwithstanding anything to the contrary set forth in the Water Facilities Agreement, Neely shall be solely responsible for constructing the Remaining Waterline Improvements, in lieu of PPDP or any other party, at its sole cost and expense; provided, however, within thirty (30) business days of Neely's execution and delivery of this Agreement to the City, the City shall deliver the Reimbursement Amount to Neely in immediately available funds for purposes of reimbursing Neely for any existing or future costs or damages incurred by Neely in cmmection with the Landslide Damage or the construction of the Remaining Waterline Improvements. Notwithstanding the amount of any actual costs or damages incurred by Neely in connection the Landslide Damage or the construction of the Remaining Waterline Improvements (the "Actual Costs Amount"), whether the Actual Costs Amount is ultimately higher or lower than the Reimbursement Amount, Neely hereby acknowledges and agrees Neely shall only be entitled to such Reimbursement Amount and shall be expressly prohibited from seeking any further reimbursement or damages amounts from the City or PPDP in connection with the Landslide Damage or the construction of the Remaining Waterline Improvements as shown in Exhibits A and B attached hereto .. 073 I 8J\7053458v3 S-2 II. RELEASE A. Neely, for itself, successors-m-mterest, partners, members, assigns, affiliates, employees, agents, officers, directors, trustees, attorneys, representatives and predecessors-in-interest hereby releases, waives, abandons and forever discharges the City and PPDP and their successors-in-interest, partners, members, assigns, affiliates, employees, agents, officers, directors, trustees, attorneys, representatives and predecessors-in-interest (collectively, the "Released Parties") from any requirement to perform any further construction work or fulfill any further obligations under the Water Facilities Agreement, including, without limitation, completing the Remaining Waterline Improvements, and also release, waive, abandon and forever discharge the Released Parties from any and all liabilities, obligations, actions, suits, liens, claims, counterclaims, losses, rights, demands, debts, costs, agreements, damages, controversies, causes of action, expenses and compensation of any kind or nature whatsoever, in law or in equity, known or unknown, fixed or contingent, including without limitation, attorneys' fees and costs, which Neely may have had or claim to have had, or now have or claim to have, or hereafter may have or assert to have, on account of, or by reason of, or in any way arising out of or resulting directly or indirectly from any Landslide Damage, the construction of the Remaining Waterline Improvements, or any other obligations set forth in the Water Facilities Agreement and any documents or agreements referenced therein (collectively, the "Released Claims"). B. Neely expressly understands and acknowledges that it is possible that unknown losses or claims exist or that present losses may have been underestimated in amount or severity with respect to the matters expressly released by this Agreement, and said party represents and warrants that this uncertainty was taken into account in determining the consideration to be paid for the giving of this Agreement, and that a portion of said consideration having been bargained for between the parties with the knowledge of the possibility of such unknown claims was given in exchange for full accord, satisfaction and discharge of all such claims. Neely specifically acknowledges that it is familiar with the provisions of California Civil Code Section 1542 which provides as follows: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER, MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." Neely Initials Trustee Neely Family Trust Initials ____ _ All of the parties, being aware of said code section and represented by counsel, hereby expressly waives any right it may have under said code section, as well as under any other statutes or common law principles of similar effect. Notwithstanding the foregoing, the waivers set forth in this Section II shall not (a) release any party from any claim 073181\7053458v3 S-3 arising out of a violation of this Agreement; or (b) apply to any claim for fraudulent representation, fraudulent inducement, or similar claim for fraud. III. NO PRIOR ASSIGNMENT The parties warrant that none of the claims or causes of action covered hereby have been sold, assigned, transferred, or otherwise set over, in whole or in part, to any other person or entity, and that they have the sole right and exclusive authority to execute this Agreement, and each party agrees to indemnify, defend and hold harmless the other parties for any elaims advanced in contravention of this warranty. IV. NO ADMISSION OF LIABILITY The performance of any terms of this Agreement shall not be construed as an admission of liability on the part of any of the parties hereto. V. REPRESENTATION BY COUNSEL Each party to this Agreement hereby confirms and admits that it has read and understands this Agreement, that it has been fully advised and represented by independent legal counsel with respect to this Agreement and all negotiations giving rise to this Agreement, that it has fully discussed this Agreement and all of its terms, consequences and ramifications with its respective counsel. VI. INTEGRATION CLAUSE This Agreement contains the entire agreement and understanding between the Parties concerning its subject matter and integrates and supersedes all other agreements of any kind relating to the subject matter of this Agreement. Each of the undersigned warrants that no promise or inducement has been offered to him or her except as set forth herein. This Agreement is executed without reliance upon any statement or representation by the Released Parties, or their representatives, concerning the nature and extent of injuries, damages, or legal liability therefor. This Agreement may only be amended and/or modified in writing and only after unanimous written consent by all affected Settling Parties. VII. COMPLETE DEFENSE This Agreement may be asserted as a complete defense to any claim that may be brought relating to any matter released herein. VIII. ENFORCEMENT COSTS If any action in law or in equity, including an action for declaratory or injunctive relief, is brought to enforce or interpret the provisions of this Agreement, the prevailing party shall be entitled to all of its reasonable attorneys' fees and litigation costs in prosecuting or defending that action. 073181 17053458v3 S-4 IX. CALIFORNIA LAW This Agreement shall be construed according to the laws of the State of California. X. EXECUTION IN COUNTERPART This Agreement may be executed in several counterparts, and all so executed shall constitute one agreement binding on all parties hereto, notwithstanding that all parties are not signatories to the original or the same counterpart. There shall be no commitment or agreement between the parties until all parties hereto have executed the exact same version of this Agreement. [SIGNATURE PAGE TO FOLLOW] 073181 17053458v3 S-5 IN WITNESS WHEREOF, this Agreement has been duly executed by the Parties herein named on the date set forth on the first page above, and duly signed by its undersigned representative(s) pursuant to authority of its governing body. CITY OF SAN JUAN CAPISTRANO By: ____________ _ Derek Reeve, Mayor ATTEST: Maria Morris, City Clerk APPROVED AS TO FOlli'\1: Jeffrey S. Ballinger , City Attorney [SIGNATURES CONTINUED ON FOLLOWING PAGE] 073181\7053458v3 S-1 NEELY NEELY FAMILY TRUST OF MARCH 3, 1989 By: _____________________ _ Jerry W. Neely, as trustee of the Neely Family Trust of March 3, 1989 Nancy C. Neely, as trustee of the Neely Family Trust of March 3, 1989 Jerry W. Neely and Nancy C. Neely each hereby expressly acknowledge that this Agreement is bonding on each such Party in his or her individual capacity as the sole settlors of the Neely Family Trust of March 3, 1989 By: ____________ _ Jerry W. Neely, an individual Nancy C. Neely, an individual 073181\7053458v3 S-2 i I I i Exhibit A WORKS OF IMPROVEMENT CERTIFICATION OF PARTIAL COMPLETION OF IMPROVEMENTS 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 ) $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) SUBMITTED BY ENGINEER OF RECORD I estimate the total cost of completing the modifications to water faclli!ies to serve Tract 14196 agreed to be performed by the Owner and Subdivider to be One Hundred Fifty Dollars {$150,000). DATED ACCEPTED BY CITY DATED: Pacifica San Ju en President Hunsaker & Associates Irvine, Inc. ~trugn~ !'c, lrviry=,cA 92618 \ l '4v.~ ~Steve Ko¢yman, P.E. 't<,ssistantl Public Works Director ,~~ ' ..._._, 1 of! Exhibit A EXHIBIT B LOT SUMMARY l I PIIEPARED BY: Neely Development Plan '"'''"''•"'"'·""' ~-~~~~~~ ---"" RECORDING REQUESTED BY: 32400 Paseo Adelanto San Juan Capistrano, CA 92675 AND WHEN RECORDED, MAIL TO: Marla M. Morris, CMC, City Clerk City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Exempt from Recording Fees: Recorded in Official Records, Orange County Hugh Nguyen, Clerk-Recorder IIIII i •1111111111111111111111 !II II IIIII :111111111 :1111111111111! 111111 N ° • I R 0 0 0 7 4 9 0 2 0 4 I • 20150002259018:10 am 05101115 47 411 A17 11 0.00 0.00 0.00 0.00 30.00 0.00 0.00 0.00 Gov't Code 27383 & 6103 City of San Juan Capistrano -------------J....-T.:.h:.:;;is~Sii:la::::c;;;,e.:,:fo~r~R~e~co"'r:::;de~r.:.'s~U:,s~e.;;O::,:n::.~l _______ 1~ AMENDMENT #1 TO THE AGREEMENT FOR MODIFICATIONS TO WATER FACILITIES TO SERVE TRACT 14196 THIS AMENDMENT #1 TO THE AGREEMENT FOR MODIFICATIONS TQ,WATER F,I\CIL!TIES TO SERVE TRACT 14196 ("Amendment") dated the ~~ ~day of 1\oyi\ , 2015, is entered into by and between LV PACIFIC POINT LLC, a Del~ware 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 ATTACHMENT 3 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# l To Agreement for Modifications to Water Facilities To Serve Tract 14196 Page 12 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 I. 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 13 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 14 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. Ill. 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 15 V. GENERAL I. 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# I To Agreement for Modifications to Water Facilities To Serve Tract 14196 Page 16 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. INDEPENDENTAGENT 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 # l To Agreement for Modifications to Water Facilities To Serve Tract 14196 Page 17 IN WITNESS WHEREOF, ltQi;? Amendmep{ ha\ been duly executed by the Owner herein named on the {:} -"'"' day of ·· ·\)l: \ , 2015, 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 LV PACIFIC POINT LLC, a Delaware limited liability company (Attach Notary Acknowledgement) Attachment Exhibit A CITY QF SAN JUAN CAPISTRANO By~ Derek Reeve, Mayor ED AS TO FORM: Hans Van Uglen, City Attorney PUBLIC AGKNCY FORM OF ACKNOWLEDG:Ii:JVIENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document, to which this certi!icatc is attached, and not the truthfulness, accuracy, or validity of that document. State of Califomia ) Cmmty of Orange ) ss. City San Juan Capistrano ) (Gov't Code 40814 & Civil Code 1181) On April 23, 2015, hefi1re me, Maria Morris, Citv Clerk, personally appeared Derek Reeve, Mayor and Hans Van Ligten, Citv Attorney, who proved to me on the basis of satisfactory evidence to the be pcrson(s) whose namc(s) is/arc subscribed to the within instrument and acknowledged lome that he/she/they executed 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 which the person(s) acted, executed the instrument l certify under PENALTY OF PERJURY under the laws oCtbe State of California that the foregoing paragraph is true and correct. (SEAL) Capacity Claimed by Signers Mayor Attorney Tit.le Signer is Representing City of San ,I uan Capistrano OPTIONAL Description of Attached Document Tltte or of Document Amendment !fl to the Agreement for Modifications to Water Facilities to Serve Tract 14 J 96 LV Pacilic Point LLC OWNER ACKNOWLEDGMENT STATE OF NEW YORK ) ) ss. COUNTY OF NEW YORK ) On the~ day of ltp~n the year 2015 before %• the undersigned. a Notary Public in and for said State, personally appeared /b..(hoo'144:?£ ~ersonally known to 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. qL,fl jv. rPftda ~ (Notarial Seal) Notary Public LISA A. PHELAN Notary Public. State of New York Qualified m New York County ~----~~~-No.01PH6292618 _,.,......., Expi!88. November 4, 2017 Exhibit A WORKS OF IMPROVEMENT CERTIFICATION OF PA.RTIAL COMPLETION OF IMPROVEMENTS Amendment#1 to the Agreementfor Modifications to Water Fa<:u!ties to Serve Trect 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 Fif(y Thousand Dollars L-----'~~~). (100% of Column 4) SUBMinED 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 Subdivider to be One Hundred Fifty Dollars ($150,000). DATED President Hunsaker & Associates Irvine, Inc, ACCEPTED BY CITY DATED: Amendment #1 to the Agtacement for Modifk.a:tlon to Wat~r Fooilfth~s to Sarve Tract 14196 Pacifica San Juan 1 of 1 Exhibit A Aerial Photo ATTACHMENT 4