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15-1103_PACIFIC POINT DEVELOPMENT PARTNERS, LLC_Amd 2 & Term. Agr for Water FacilitiesRECORDING REQUESTED BY: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 AND WHEN RECORDED, MAIL TO: Maria M. Monis, CMC, City Clerk City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Exempt from Recording Fees: Gov 't Code 27383 & 6103 City of San Juan Capistrano Recorded in Official Records, Orange County Hugh Nguyen, Clerk-Recorder 11111111 111111111111111111111111111111111111111 111/lllll/l/lllllll ! 11111111 NO FEE * $ R 0 0 0 7 9 7 2 6 1 4 $ * 2015000593892 10:31 am 11/18/15 7 410 T02 23 0.00 0.00 0.00 0.00 66.00 0.00 0.00 0.00 This S ace for Recorder's Use Onl 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 Oro day of tfNg_~ 2016 is entered into by and between PACIFIC POINT DEVELOPMENT PARTNERS LLC, a Delaware limited liability company, whose mailing address is 100 Spectrum Center Drive, Suite 1450, Irvine, CA 92618, the owner of property known as Pacifica San Juan Subdivision, specifically refened 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". RECITALS WHEREAS, that certain "AGREEMENT FOR MODIFICATIONS TO WATER FACILITIES TO SERVE TRACT 14196'' (the "Original Agreement"), 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 WHEREAS, 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 073 18117047545v5 WHEREAS, Former Owner has completed, and the District has accepted, the required water facilities modifications described within the Original Agreement and as defmed 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 ("Former Owner II"), as successor-in-interest to Former Owner, entered into that certain Amendment #1 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 day of April, 2015 and recorded on the 1st 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 Jerry W. Neely and Nancy C. Neely, as trustee ofthe Neely Family Trust ofMarch 3, 1989 ("Neely"), the owner ofthe Neely Property; and WHEREAS, Former Owner II, in accordance with Section VI of the First Amendment, replaced the then existing Bonds with cash security :iri 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 "A" attached hereto (the "PPDP 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 with Neely's construction of the Remaining Waterline Improvements in lieu of PPDP (collectively, the "Remaining Waterline Costs"); and WHEREAS, City and PPDP propose to amend and then terminate the Agreement as set forth herein. All terms not otherwise defined or amended herein shall have the 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. REIMJ3URSEMENT 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 Agreemenf') in the form attached hereto as Exhibit "B" or otherwise mutually agreed upon by the City and PPDP and deliver 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 I. The Agreement shall automatically terminate upon PPDP's receipt of the fully- executed Reimbursement Agreement; provided that those provisions of the Agreement which 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 II(2), III 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 party 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 Reimoursement Agreement, any title insurance company, any title agency and any escrow agent may fully rely on this Secti.on 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 Property as provided herein, within seven (7) business days after written request from PPDP or a title company, closing agent or 073181\7047545v5 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 PPDP and its title insurance company and instructions to release the Agreement with respect to the PPDP Property, releasing the PPDP Propetty from the encumbrance, lien, agreements, requirements, obligations and tenns and provisions of the Agreement, notwithstanding any actual or alleged default by PPDP. This Section 11(2) shall survive the termination of the Agreement. III. RELEASE 1. The City, for itself, successors-m-mterest, assigns, employees, agents, officers, directors, attomeys, representatives and predecessors-in-interest hereby releases, waives, abandons and forever discharges PPDP and their successors-in-interest, partners, members, assigns, affiliates, employees, agents, officers, directors, trustees, attomeys, representatives and predecessors-in-interest (collectively, the "Released Parties") from any requirement to perform any further work, including, without limitation, with respect to the Remaining Waterline Improvements, or fulfill any futther obligations under the Agreement, and also release, waive, abandon and forever discharge the Released Pmties 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 patty 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 familiar with the provisions ofCalifomia 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 MA TERJALL Y AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." City Initials 073181 \7047545v5 4 The City, being aware of said code section and repre~ented 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 ASSIGN:MENT 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 confmns 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 col11111,itment 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] 073181\7047545v5 5 IN \VITNESS WJ:UfREOF, this Amendment has been duly executed by the pmties herein named on the 9 day of NtJVetnWJr , 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 goveming body. PPDP PACIFIC POINT DEVELOPMENT PARTNERS LLC, a Delaware limited liability company By: Taylor Morrison Pacific Point Holdings, LLC, a Delaware limited liability company Its: Managing Member By: ___ =~ok--'---.·~---=--- N ame: __ --J~L.....>o<:....:"""--=--=------'~=...a."'-="\r..,__,_,~.___ Its: ____ '\_.,.f_V;:...__ ____ _ (Attach Notary Acknowledgment) Attachment: Exhibit A Exhibit B 073181\7047545v5 1 CITY OF SAN JUAN CAPISTRANO f) \ I ., uJ_ By:--'--.::.=..._JV...._~_· -+1 \...J:..J.._------ Derek Reeve, Mayor ATTEST: APPROVED AS TO FORM: PUBLIC AGENCY FORM OF ACKNOWLEDGEMENT A notary public or other officer completing this ce1tificate verifies only the identity of the individual who signed the document, to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California ) County of Orange ) ss. City of San Juan Capistrano ) (Gov't Code 40814 & Civil Code 1181) On November 9, 2015, before me, Christy Jakl, Deputy City Clerk, personally appeared Derek Reeve, Mayor and Jeffrey Ballinger, City Attorney, who proved to me on the basis of satisfactory evidence to the be person whose name is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity, and that by his/her/there signature on the instrument the person, 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. (SEAL) Capacity Claimed by Signers Mayor City Attorney Title Signer is Representing City of San Juan Capistrano WITNESS my hand and official seal. OPTIONAL Description of Attached Document Water Facilities Reimbursement Agreement Neely Family Trust of March, 3, 1989 APN 675-331-19, 20, 21 & 22 and 675-341-08, 09, 10 &11 · . . · 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 Tom Baine , who proved to me on the basis of satisfactory evidence to be the perso# whose name~ is/9(6 subscribed to the within instrument and acknowledged to me that he/sp€/tp.e'y executed the same in his/~r/~ir authorized capacity(ieS), and that by his/h¢/!J;leir signature(p?on the instrument the perso~, or the entity upon be'half of which the personM 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. Signature ----t~-"'~'1----........_=~----(Seal) ·}·~--~~~W~·~~;;~~\'~-:::~:~~ 'si;':t ·:?\~~ .. .Exhibit A LegalD.escription ofPJ>))P Property ·[See attached] -1# 07J181\7o47545v5 EXHIBIT "A" Legal Description ofthe Grantee Property Real property in the City of San Juan Capistrano1 County of Orange1 State of California1 described as follows: PARCEL 1: (APN'S: 675-085-391 675-085-01 THROUGH 675-085-381 675-085-471 675- 085-481 675-081-191 675-085-45 AND 675-085-46) LOTS 11 7 THROUGH 441 INCLUSIVE1 AND LETTERED LOTS A THROUGH E1 INCLUSIVE1 OF TRAer NO. 14196, AS PER MAP RECORDED IN BOOK 8751 PAGES 16 THRU 21 INCLUSIVE1 OF MISCELLANEOUS MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY1 AMENDED PURSUANT TO THAT CERTAIN CERTIFICATE OF CORRECITON RECORDED DECEMBER 22, 2008 AS INSTRUMENT NO. 2008000584708 OF OFFICIAL RECORDS. ALSO EXCEPT THEREFROM1 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 HEREFROM1 AS RESERVED BY HOWARD L. KRUM AND FAY WILSON KRUM, HUSBAND AND WIFE1 BY DEED RECORDED JUNE 6, 1956, IN BOOK 3538, PAGE 550 OF OFFICIAL RECORDS1 AND RERECORDED JULY 20, 19561 IN BOOK 35841 PAGE 3391 OF OFFICIAL RECORDS. ALSO EXCEPT THEREFROM ALL WATER RIGHTS AS DEDICATED TO THE CITY OF SAN JUAN CAPISTRANO ON THE MAP OF TRAer NO. 14196. PARCEL 2: (APN'S: 675-444-01 THROUGH 675-444-231 675-444-241 675-444-25, 675- 442-05 THROUGH 675-442-07) LOTS 1 THROUGH 231 INCLUSIVE1 AND LETTERED LOTS A1 B1 AND D THROUGH F1 INCLUSIVE1 OF TRACf NO. 156091 AS PER MAP RECORDED IN BOOK 8851 PAGES 37 THRU 44 INCLUSIVE1 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 TRAer NO. 15609. PARCEL 3: (APN'S: 675-081-171 675-081-20, 675-081-22, 675-411-741 675-081-211 675- 081-231 675-411-72/ 675-081-18) LOTS 1 AND 2, INCLUSIVE1 AND LETTERED LOTS A THROUGH E, INCLUSIVE, OF TRACf NO. 156871 AS PER MAP RECORDED IN BOOK 8751 PAGES 1 THRU 51 INCLUSIVE1 OF MISCELLANEOUS MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. ALSO EXCEPTTHEREFROM1 AN UNDIVIDED ONE-HALF INTEREST IN ALL THE OIL1 GAS AND OTHER HYDROCARBON SUBSTANCES1 IN1 UPON AND UNDER SAID LAND1 TOGETHER WITH THE INCOME ACCRUING HEREFROM1 AS RESERVED BY HOWARD L. KRUM AND FAY WILSON KRUM1 HUSBAND AND WIFE1 BY DEED RECORDED JUNE 61 1956, IN BOOK 3538, PAGE 550 OF OFFICIAL RECORDS, AND RERECORDED JULY 201 19561 IN BOOK 35841 PAGE 3391 OF OFFICIAL RECORDS. 073181\7082795v2 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, INCLUSNE, AND LETTERED LOTS A, B, AND D THROUGH H, INCLUSNE, 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, INCLUSNE, 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 UNDNIDED 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, INCLUSNE, 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 COUNIY RECORDER OF SAID COUNIY. EXCEPT THEREFROM ALL WATER RIGHTS AS DEDICATED TO THE CIIY 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 COUNIY RECORDER OF SAID COUNIY. 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 339J OF OFFICIAL RECORDS. ALSO EXCEPT THEREFROM ALL WATER RIGHTS AS DEDICATED TO THE CIIY OF SAN JUAN CAPISTRANO ON THE MAP OF TRACT NO. 16752. 073181\7082795v2 3 •.. .i.::.. 073 fSl \'io47545v5 E~hibitB Forni of ReimlitirseJ.llent :A'gltel~lJ;l~nt [See attached] --' ...... :.-.. RECORDING REQUESTED BY: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 EXHIBIT 8 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) .. · . 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 ofthe Neely Family Trust ofMarch 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 ofthe 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-(08-11) (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 SID 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 #1 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 1st 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-in-interest, 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 t9 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 .. I 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 PRJ OR 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. N. 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 VIII. This Agreement may be asserted as a complete defense to any claim that may be brought relating to any matter released herein. 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\7053458v3 S-4 ; . IX. CALIFORNIA LAW This Agreement shall be construed according to the laws ofthe State of California. X. EXECUTION IN COUNTERPART This Agreement m_ay 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\7053458v3 S-5 i • 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 FORM: JeffreyS. Ballinger, City Attorney [SIGNATURES CONTINUED ON FOLLOWING PAGE] 073181\7053458v3 S-1 i : NEELY NEELY FAMILY TRUST OF MARCH 3, 1989 By: ____________________________________________ __ Jeny W. Neely, as trustee of the Neely Family Trust of March 3, 1989 By: ______________________________________________ __ Nancy C. Neely, as trustee oftheNeely Family Trust ofMarch 3, 1989 Jeny W. Neely and Nancy C. Neely each hereby expressly aclrn.owledge that thls Agreement is bonding on each such Party in his or her individual capacity as the sole settlors of the Neely Family Trust ofMarch 3, 1989 By: ________________________ _ Jeny W. Neely, an individual By: _______________________ _ Nancy C. Neely, an individual 073181\7053458v3 S-2 Exhibit A WORKS OF IMPROVEMENT CERTIFICATION OF PARTIAL COMPLETION OF IMPROVEMENTS I hereby certify that the following improvements for Pacifica San Juan requ ired 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 Ltne) $150,000 0% $150,000 $150,000 0% $150,000 Water Improvements (McCracken Hills Water Line) The Cash Security is for the amount of One Hundred Fifty Thousand Dollars ...l,_ ____ __:_$_15;;..;0;..:.., 0;;..;0;_;_0 ) . ( 1 00 % of Column 4) SUBMITIED BY ENGINEER OF RECORD DATED: ACCEPTED BY CITY DATED: Y{t1/tC Pacrfica San Juan Doiig Staley (RCE'No. 38796) President '- Hunsaker & Associates Irvine, Inc. ugh~ lrvi , CA 92618 1 of 1 Exhibit A .. ·: /·. I . '. 1' .i.: I . i ( / ' / / .' ...... I.OT SUMMARY " ~--:.:'\!.__ •11;"! -~~;~~------·-t - lt)lt' IOI.Mf,Y,f'1'10:~'7'1'-'\ol:t'tf"t •.Jb,.." l.>o1•l'\fr .... :~ l"t /.,.., 'I".K>V>,l / · ... .,. t. 'r <:,._1 ~·-""' •' - r ' .:·:·.·· .. ( SCCTIOII A-A ."'.t.:m&T ~(:--" EXHIBIT 8 J f ~-""' l I. .. .~I If,, .. .. ~ ' -~· .... "'""'· .... : ...... um ~·-SEl:'IN* .... &JIIRil5. SJIMT Neely Development Plan /.'' IO&I.YF~Y . I I ' t ' ·/ I \ 1'. r' I ~ • •\ PREPAPED BY: