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16-0118_DEVELOPMENT SOLUTIONS OAK, LLC_Agenda Report_E1aCity of San Juan Capistrano Agenda Report TO : Honorable Mayor and Members of the City Council FROM : Jeffrey S. Ballinger, City Attorney 'fA""'-~C 56 DATE: January 18, 2016 1/18/2016 E1a SUBJECT: Consideration of Amendment No. 1 to Subdivision Improvement Agreement (Final Tract 17441) (Development Solutions OAK, LLC) RECOMMENDATION: By motion, approve the Amendment No. 1 to Subdivision Improvement Agreement with Development Solutions OAK, LLC, for Final Tract 17441. EXECUTIVE SUMMARY: At the November 17, 2015, City Council meeting, the City Council determined to allow the subdivider of Tract 17441 (The Oaks) to obtain its building permits and certificates of occupancy, pending the City's final determination of whether and what Trail and Bikeway improvements would be required, if any. The City Council also directed that the matter be brought back to the City Council for a determination of whether and what trail and bikeway improvements would be required, if any. Since that meeting, the subdivider has proposed that the subdivider be relieved of any obligation to construct and install trail and bikeway improvements, as originally conditioned, and instead place a cash deposit with the City, so that the City may (if the City wishes) use such deposit to construct whatever trail and bikeway improvements that the City Council ultimately determines are warranted at that location. The accompanying Amendment to the Subdivision Agreement accomplishes this arrangement. DISCUSSION/ANALYSIS: At its January 6, 2014, meeting the Open Space Trails and Equestrian Commission (OSTEC) unanimously approved the proposed trail improvements for Tentative Tract 17441 (The Oaks) (OSTEC Minutes, Attachment 1). The alignment approved placed the bikeway adjacent to the development, with the equestrian/multi-use trail closest to the creek (Attachment 2). City Council Agenda Report January 18, 2016 Page 2 of6 At its January 14, 2014, meeting the Planning Commission approved a Mitigated Negative Declaration, Tentative Tract Map, Rezone, Tree Removal Permit and Grading Plan Modification for the Project. At that meeting staff presented a change in alignment, with the equestrian/multi-use trail located closest to the development and the bikeway closest to the creek and was approved (Attachment 3). Based on the recommendations from the former Open Space, Trails and Equestrian Commission and the Planning Commission, the City Council on February 18, 2014, adopted City Council Resolution No.14-02-18-03. The resolution approved Tentative Tract Map 17 441 for the Oaks Development, and included construction of a Class I paved bike trail and an unpaved Multi-use Hiking/Biking/Equestrian Trail, which completed the gap in the San Juan Creek Trail. The resolution conditioned the City Council's approval on the developer's construction of a Class I paved bike trail and an unpaved Multi-use Hiking/Biking/Equestrian Trail, which would complete the gap in the San Juan Creek Trail. Specifically, Condition 1.22 reads as follows: "Trail and Bikeway Dedications. Prior to approval of each final map, the applicant/subdivider shall design to City trail standards, improve, and dedicate, at no cost to the City, the trails listed below and shall show the easement dedications on the final map . Any deviation from the trail requirements shall be subject to prior review and approval by the City Engineer. Trails shall be improved and easements dedicated to the City for all public hiking, equestrian and bicycle trails located within parcels belonging to the Homeowner's Association or within parcels which are privately owned. Trails within existing or proposed City-owned parcels and/or open space do not require separate trail easements. Said dedicated trails shall include: • Class 1 Paved Bike Tail, and • Multi-Use Hiking/Biking/Equestrian Trail (Unpaved) The applicant/subdivider shall construct all street and trail improvements within the preceding dedications in accordance with the applicable City Standards and Trail Design Manual or to the satisfaction of the City Engineer, subject to the limitations imposed by outside agencies for habitat preservation and/or by mitigation requirements, as approved by the City Engineer. The bike trail shall be constructed adjacent to San Juan Creek and shall include a minimum of a 3' wide bio-swale, or other design feature as approved by the City Engineer to provide separation from the multi-use trail." City Council Agenda Report January 18, 2016 Page 3 of 6 At its meeting on March 17, 2015, the City Council considered the Final Map for Tract 17741 (The Oaks), and the related Subdivision Improvement Agreement. During discussion of the approval for the Final Map, a letter from a concerned Trails and Equestrian Commissioner, and public comment led to discussion regarding the development of the trail. The City Council requested the Trails and Equestrian commission review the placement of the equestrian trail and bring back a recommendation for City Council approval. The developer's representative, present at the meeting, stated that he would be open to considering moving the alignment back to the one previously approved by the OSTEC. The City Council approved Final Map 17441 (The Oaks) and the Subdivision Improvement Agreement. The Subdivision Improvement Agreement is an agreement that is contemplated by the California Subdivision Map Act. If, at the time of approval of the final map by the City Council, any public improvements required by the City have not been completed and accepted, the City Council, as a condition to the approval of the final map, must require the subdivider to enter into an agreement with the City to complete the improvements at the subdivider's expense. (Cal. Gov. Code 66462.) In this case, the Subdivision Improvement Agreement obligated the subdivider to complete the public improvements that were conditions of approval of obtaining the Oaks final map, including the trail and bikeway improvements. Following the City Council's approval of the final map, the Trails and Equestrian Commission considered the trail and bikeway improvements. That consideration lead to the City Council's November 17, 2015, consideration of the trail and bikeway improvements. At that meeting, the City Council voted to table the issue of the trails construction, but allow the subdivider to move forward with other entitlements, including building permits, grading permits and certificates of occupancy. The City Council also voted to bring the matter back to the January 19, 2016, meeting (which was changed to January 18, 2016). Following the November 17, 2015, meeting, the subdivider proposed that the City allow the subdivider to obtain further entitlements (i.e., building permits, certificates of occupancy), but require the subdivider to provide a cash deposit to the City, sufficient to cover the costs of whatever trail and bikeway improvements (if any) that the City wishes to install. The proposed amendment to the Subdivision Improvement Agreement accomplishes this. Specifically, the proposed amendment provides for the following: • The subdivider's required "Works of Improvement" is amended to remove those Trail and Bikeway improvements that are listed as Condition No. 1.22 (Trail and Bikeway Dedications) in the Conditions of Approval for Tentative Tract Map 17 441 . • Subdivider will be under no legal obligation to install and/or construct such Trail and Bikeway improvements. City Council Agenda Report January 18 , 2016 Page 4 of 6 • At the same time as Subdivider's execution of the Amendment, Subdivider must deposit with the City a cash deposit in the amount of One Hundred Forty Thousand Dollars ($140,000.00) ("In Lieu Amount"), which the Parties estimate to be the reasonably estimated cost of constructing and installing the Trail and Bikeway improvements. This Amendment will not be effective until that date (the "Effective Date") that Subdivider pays such In Lieu Amount to the City. Upon payment of said In Lieu Amount, the City Engineer will take any and all steps necessary to reduce the Faithful Performance Bond and Labor and Materials Bond by Seventy Thousand Three Hundred Fifty Seven Dollars ($70,357 .00). • City will hold the In Lieu Amount for a period of ten (1 0) years following the Effective Date of this Amendment. City may, but is not obligated to, use the In Lieu Amount for Trail and Bikeway improvements. The City may not use the In Lieu Amount for anything other than trail improvements at the location previously required by Condition 1.22. Nothing contained in the Amendment will be construed as obligating the City to construct any or all of the Trail and Bikeway improvements. • Other than the In Lieu Amount, Subdivider will not be obligated to pay for or contribute to the cost of any Trail and Bikeway improvements constructed by the City, even if those costs exceed the In Lieu Amount. It is the intention of the City and Subdivider that the In Lieu Amount will satisfy any and all obligations of Subdivider with respect to any such improvements. • If and to the extent that the City has not, before the end of the ten (1 0) year period referenced above , used the In Lieu Amount (or any unused portion thereof), the City will remit the In Lieu Amount (or any unused portion) to Subdivider. Prior to any change in its corporate organization (including, ceasing to exist), Subdivider will notify City, in writing, of the appropriate successor in interest to Subdivider's rights to reimbursement under this section. FISCAL IMPACT: There are not expected to be any significant impacts to the City's budget. The developer is providing funding for the development, if any, of the trail and bike. Trail maintenance costs will be the only outlay required by the City. City Council Agenda Report January 18, 2016 Page 5 of6 ENVIRONMENTAL IMPACT : The City's Environmental Administrator has reviewed and filed a Mitigated Negative Declaration Notice of Determination for this project on November 15, 2013. The City received no comments on this filing. PRIOR CI TY COUNCIL REVIEW : • On February 18, 2014, the City Council approved Tentative Tract Map 17441. The resolution approving the tract included a condition to construct a Class 1 bikeway and equestrian trail along the City-owned berm adjoining the Oaks property. • On March 17, 2015, the City Council approved Final Tract Map 17441 (The Oaks) and requested the Trails and Equestrian Commission to review the equestrian trail and to report back to the City Council with a recommendation. • On November 17, 2015, the City Council considered the trail and bikeway improvement options, and tabled the matter until January, 2016. COMMISSIONJCOMMITTEE/BOARD REVIEW AND RECOMMENDATIONS: • At its January 6, 2014, meeting the Open Space Trails and Equestrian Commission approved the trail improvements for Tract 17441 (The Oaks). • At its January 14, 2014, meeting the Planning Commission approved a Mitigated Negative Declaration, Tentative Tract Map, Rezone, Tree Removal Permit and Grading Plan Modification for the Project. • At its June 3, 2015, Equestrian and Trails Commission meeting, the Commission held an onsite tour of the San Juan Creek Trail Extension. • On September 2, 2015, the Equestrian and Trails Commission directed staff to review the possibility of changing the design of the approved and conditioned trail plans. • On October 5, 2015, the Equestrian and Trails Commission requested additional information regarding the bikeway gates at Reata Park prior to finalizing their recommendations for the San Juan Creek Trail Extension. • At its November 5, 2015, Equestrian and Trails Commission meeting the Commission voted on a 3-1 vote, with one abstention, to recommend to City Council the construction of the San Juan Creek Trail Extension with the Class I Bikeway being aligned adjacent to the Oaks development, elimination of the mulch buffer, grading of the multi-use/equestrian trail kept to a minimum and installation of a bio-swale on the outer edge of the trail, closest to the creek. City Council Agenda Report January 18, 2016 Page 6 of 6 NOTIFICATION : Trails and Equestrian Commission Tim O'Grady, Davidson Communities Tom Osten sen A TT ACHMENT(S): Attachment 1-OSTEC Minutes January 6, 2014 Attachment 2-Trail Section showing bikeway adjacent to development (Per original OSTEC approval January 6, 2014) Attachment 3-Trail Section showing equestrian trail adjacent to the development (Per Planning Commission approval January 14, 2014) Attachment 4-Trail Section showing bikeway adjacent to development and elimination of the mulch buffer as approved by TEC on November 5, 2015 Attachment 5-Location Map Attachment 6-Subdivision Improvement Agreement (dated February 3, 2015) Attachment 7-Amendment No.1 to Subdivision Improvement Agreement 32400 PASEO ADELANTO SAN JUAN CAPISTRANO, CA 92675 (949) 493-1171 (949) 493·1053 FAX www.sanjuancapistrano.org REGULAR MEETING MINUTES MEMBERS OF THE CITY COUNCIL SAM Al.LEVATO ROY L. BYRNES, M.D. I.ARAY KRAMER DEREK REEVE ~OHNTAYLOR OPEN SPACE, TRAILS & EQUESTRIAN COMMISSION January 6, 2014 A. ORGANIZATION: 1. CALL TO ORDER: The Vice-Chair called the meeting of the Open Space, Trails and Equestrian Commission to order at 6:30 p.m. 2. PLEDGE ·OF ALLEGIANCE: The Vice-Chair led the Commission and audience in the Pledge of Allegiance. 3. RQLL CALL: COMMISSIONERS PRESENT: Rob Ferguson, Chairman AI King, Vice-Chair lise 6yrnes Elliott Levenson COMMISSIONERS ABSENT: Tom Ostensen STAFF PRESENT: William Ramsey, AICP, Assistant Director Nelson Miller, Interim Dev. Services Director Nick Taylor, Associate Planner Cynthia Alexander, Comm. Service Director B. ORAL COMMUNICATIONS: None. C. CONSENT CALENDAR 1. Open Space. Trails & Equestrian Commission October 7. 2013 Meeting Minutes: On motion duly made and passed, the Commission approved the subject meeting minutes as submitted. D. UNFI~ISHED BUSINESS: 1. Continued Consideration of a Proposed Revenue-Generating and Maintenan·ce Strategy for the City-Owned Rancho Mission Viejo (RMV) San Juan Capistrano: Preserving the Past to Enhance the FutvrP (') Printed on 100% recycled paper • ATTACHMENT 1 QSTEC Minute~ 2 Januarv 6. 2014 Riding Park at San Juan Capistrano and Open Space Lands Funding (Project Manager: Finance Working Group-Chair Ferguson and Commissioner · Levenson). E. NEW BUSINESS: 1. Consideration of Tentative Tract Map ffiM) 17441, Rezone (RZ) 13-003, Architectural Contr61 CAC) 13-018. Tree Removal Permit (TRPl 13-052. Grading Plan Modification (GPM) 13-002. Conditional Use Permit (CUP) 13-006, and Zone Variance CZV> 13-002. The Oaks: a Proposed 32-lot Subdivision for Single-family Detached Residential Homes. and Modifications to an Existing Commercial Equestrian Facility on a 20.25 Acre Project Site Located at 31000 Avenida Slega. Generally Located East of the Southern Terminus of Avenida Siega. and South of Ortega Highway approximately 3.400 feet west of La Pata Avenue (Applicant: Oavidsgn Communities)(Project Manager: Nick Taylor, Associate Planner). Chair Ferguson made a motion, seconded by Commissioner Levenson, to recommend that the Planning Commission and City Council approve the proposed trail improvements. The motion passed unanimously. 2. Wgrksession on Updating the Open Space. Trails and Equestrian Cgmmisslon COSTEC) Priorities for 2014 {Project Manager: William Ramsey. AICP. Assistant Development Services Director). Mr. Ramsey made a brief presentation to the Commission and provided background on the Commission's priority setting process. He noted that the 2013 priorities, provided as an attachment to the agenda report, were now available for review and updating by the Commission. By motion duly made and seconded, the Commission continued consideration to their February 3 meeting. F. INFORMATION ITEMS: 1. Verbal Update on North West Open Space Sewer Connection and Phase 1 plan Status. Mr. Miller provided an update indicating that the Public Works & Utilities Department had completed the preliminary design. Mr. Ramsey noted that the City had retained a California Environmental Quality Act (CEQA) consultant (Keeton Kreitzer Consulting) to conduct the environmental review of the project which was under preparation. 2. Verbal Status on Equestrian Trail Plan through Rancho Mission Viejo Riding Park CRMVRP). Mr. Ramsey advised the Commission that the 'staff ·had completed conceptual design alternatives for this trail connection, had provided those to Rancho Mission Viejo (RMV) for review, and were awaiting comments and recommendations to assure that the alignment would connect seamlessly with the Sendero Trail at the Ortega Highway (SR 7 4) under-crossing. O§TEC Minutes 3 January 6, 2014 3. Verbal Status on Alternative Trail Connection between North West Open Space and Saddleback Trail . This item was continued to the February 3 meeting. G. COMMITTEE REPORTS: To assure compliance with the Brown Act, Committee reports are only for the purpose of the Committee chair to provide a verbal update. Should the Commission want to discuss any Committee work item, those would need to be agendized for the next, regularly scheduled Commission meeting. Chair Ferguson noted that there was no need at this time to provide Working Group reports on the following: 1. Northwest Open Space Working Group (King. Ostensen). 2. Trails Working Group (Levenson. Byrnes). 3. Finance Working Group (Ferguson . Levenson}. 4. Reata ~ark & Event Center Working Group (Ferguson. King}. H. ADJOURNMENT: The Chairman adjourned the Open Space, Trails, and Equestrian Commission meeting to the next regularly schedule meeting for Monday, February 3, 2014 at 6:00 p.m. in the Council Chambers. Approved: f I I I =r u c 0 ·-......, u Q) V) ~ . 9 M ~~ ·- i~ ro 0 i~ !...... "' I-N ~ ~ -o ... lO Q) > > 0 !...... II ro !...... 0.. ~ c.. c a~ <( ro --, -Ia u LJ.J t- V) 0 • ~~ •i J. ATTACHMENT 2 i I z I ! I I -·-ro !........ 1- -o ~ c QJ M 0 >o -eN ·u c.. ... c ~ C..~ :J M <(~ 0 0 >u N c !........ > ... oro......,oo ·-:J ·-M Vlcu .~ ro > ~ E -.... ..c ro E I -c 2 0 c QJ ..c u 0 > QJ ·-0 LL tlO......, !........ c u c.. ·-QJ c.. § V'l <( ro -a.. ATTACHMENT 3 1' I I I '! h c 0 ·-~ u Ln QJ ~ l/) 0 -N ·-ro .... ~ Ln ~ ""0 QJ QJ ..c > E 0 ~ QJ c. > c.. 0 ~ wj <( z II u LU I- ATTACHMENT 4 c 0 ·-(./) c Q) ......, X UJ -·-ro ~ 1- ~ Q) Q) ~ u c ro ~ ....., c ro (./) ATTACHMENT 5 ' ' RECORDING REQUESTED BY: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 AND WHEN RECORDED, MAIL TO: Maria Morris, CMC, 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 Recorded in Official Records, Orange County Hull! I~ I ~~ll!lililli\[lililill iiill1~11ii~Mi Ill ml I I II ~II N ° FEE ~ $ R O 0 Q 7 4 2 2 6 3 0 $ 2015000175811 8:21am 04/07115 47 411 A12 24 0.00 0.00 0.00 0.00 69.00 0.00 0.00 0.00 This Space for Recorder's Use Only .V ----------------------~------------~------~~~- SUBDIVISION IMPROVEMENT AGREEMENT SUBJECT: FINAL MAP of TRACT N0.17441 THIS AGREEMENT is made this 3rd day of February 2015, between the CITY OF SAN JUAN CAPISTRANO, a municipal corporation, State of California, hereinafter referred to as "City" and Development Solutions OAK, LLC, duly qualified to conduct business in the State of California, whose principal place of business is 1302 Camino Del Mar, Del Mar, CA 92014 (hereinafter referred to as "Subdivider"), concerning Final Map of Tract 17441 for the OAKS SUBDIVISION (hereinafter referred to as ~Su bdivision"); the Final Map of which was filed with the County of Orange on the [t + day of 1Mo,rc.h , 2015. RECITALS WHEREAS, the application by Tim O'grady of Davidson Communities Inc. for approval ofT entative Tract Map No. 17 441 were conditionally approved on February 18, 2014, by City Council Resolution No. 14-02-18-03; and, WHEREAS, Subdivider is the owner the land depicted in Tentative Tract Map No. 17 441, generally described as that certain parcel of land situated in the City of San Juan Capistrano, Orange County, set forth on the Final Map of Tract No 17441 (hereinafter, the" Property"), and Subdivider proposes to do and perform certain works of improvement on the Property within the Subdivision as hereinafter set forth; and, WHEREAS, City desires to assure that said proposed improvements will be done in a good and workmanlike manner and in accordance with the laws now in force and effect in the City of San Juan Capistrano, California, the terms and conditions of which are incorporated herein by reference; and, ' ATIACHMENT 6 WHEREAS, Subdivider declares that it is familiar with the pertinent regulations contained in the City's Municipal Code and in the Subdivision Map Act (Government Code Sections 66410 to 66500) and agrees to comply therewith; and, WHEREAS, the Final Map of Tract No . 17441 prepared in accordance with the City's Subdivision Ordinance, has been filed by Subdivider with City for approval by the City Council; and, NOW THEREFORE, in consideration of the approval and acceptance by the City Council of City of said Final Map of Tract No. 17 441 and the acceptance of easements therein offered for dedication for street and other public purposes and the covenants herein contained, the parties hereto mutually covenant and agree as follows: AGREEMENT 1. General Requirements: Owner/Subdivider shall comply with all the conditions of approval that are applicable to the Final Map of Tract No. 17441 set forth in City Council Resolution No. 14-02-18-03 and shall, at its own cost and expense, provide all required tests, design work, equipment, materials and labor in order to make or cause to be made all those works of improvement in the Subdivision required by Title 9 Sections 9-4.101 through 9-4.405 (Subdivisions) of the City Municipal Code (hereinafter referred to as "Code") and shown or described in the improvement plans, specifications and cost estimates entitled, "The Oaks-Phase 3 Street Improvement Plans and Storm Drain Plans Tentative Tract 17 441" and "The Oaks-In Tract Phase 3 Domestic Water Plans and Sanitary Sewer Plans Tract 17441" which were approved by the City Engineer on February 2, 2015, and the "The Oaks: Landscape Plans for Shared Entry, Residential, and Ortega," a private plan set accepted by the City Engineer on February 2, 2015. The Improvements within said Improvement Plans with the associated costs of improvements set forth in Exhibit "A" (collectively, the "Works of Improvement"), shall be completed to the satisfaction of the City Engineer. Such Works of Improvement shall include all items depicted within Exhibit "A'', and include, the placement of curb markers at all proposed street catch basin inlet structures in accordance with the National Pollution Discharge Elimination System (NPDES) requirement. Attached hereto are Exhibit "A", marked "Works of Improvement Certification of Partial Completion of Subdivision Improvements;" Exhibit B, marked "Schedule of Street Improvements;" Exhibit C, marked "Schedule of Water Improvements;" Exhibit D, marked "Schedule of Sewer Improvements;" Exhibit E, marked "Schedule of Drainage Improvements;" Exhibit F, marked "Schedule of Landscape and Irrigation Improvements;" and Exhibit G, marked "Schedule of Monumentaion;" all of which Exhibits are incorporated herein and made by reference a part hereof. The Exhibits describe quantities, units and costs associated with the improvements to be made. 2. Security: A . Subdivider shall, at all times beginning with the execution of this agreement, guarantee Subdivider's performance of this agreement by providing the City with the following security instruments (the "Security Instruments"), as 2 required by the State Subdivision Map Act, on forms approved by the City for the purposes and in the amounts as follows: (i) A Faithful Performance Bond to ensure faithful performance of this agreement in regard to said improvements in the amount of 100% of the estimated cost of construction of the improvements as shown in Exhibit "A"; and (ii) A Labor and Materials Bond to secure payment to any contractor, subcontractor, persons renting equipment or furnishing labor or materials for the improvements required to be constructed or installed pursuant to this agreement in the additional amount of 100% of the estimated cost of construction of the improvements as shown in Exhibit "A"; and (iii) A Subdivision Monument Bond in the amount of 1 00% of the estimated cost of setting subdivision monuments as shown in Exhibit ''A." B. In addition to the security instruments referenced in Paragraph 2(A) above, Subdivider shall provide to the City the following Security Instruments: (i) Prior to th e City's final acc eptance of the Works of Improvement and recordation of a Notice of Comple.tion , Subdivider shall provide to the City a Warranty Bond for Works of Improvement warranting the accepted Works of Improvement for a period of one (1) year following said accepta nce against any defective work or labor done or defective material furnished. The amount of such Warranty Bond for Works of Improvement shall be equal to twenty-five percent (25%) of the estimated construction cost set forth in Exhibit "A," or a suitable amount determined by the City Engineer. (ii) Prior to the City's final acceptance of the landscape and irrigation Works of Improvement, Subdivider shall provide to the City a Landscape and Irrigation Warranty Bond warranting the landscape and irrigation Works of Improvement for a period of (1) year following said acceptance against any defective work or labor done or defective material furnished for any reason other than improper maintenance. The amount of such Landscape and Irrigation Warranty Bond shall be equal to twenty percent (20%) of the landscape architect's estimated construction cost, or a suitable amount determined by the City Engineer. All Security Instruments required by this Agreement, shall be kept on file with the City Clerk. The terms of the Security Instruments required by this agreement are hereby incorporated in this agreement by reference. 3 City Engineer shall release the Faithful Performance Bond upon Subdivider's written request following acceptance by the City of the Works of Improvement and Subdivider's delivery to the City of the Warranty Bond for Works of Improvement. City Engineer shall release the Labor and Materials Bond upon Subdivider's written request and following acceptance by the City of the Works of Improvement and after expiration of the time within which lien claims are required to be made pursuant to Article 3 (commencing with Section 3114) of Chapter 2 of Title 15 of Part 4 of Division Three of the California Civil Code. If lien claims have been timely filed, the City shall hold the Labor and Materials Bond until (a) such claims have been resolved, (b) Subdivider has provided a statutory bond, or otherwise as required by applicable law . City Engineer shall release the Warranty Bond for Works of Improvement upon Subdivider's written request following the expiration of the warranty period, provided no claims are outstanding at that time regarding defective work. City Engineer shall release the Landscape and Irrigation Warranty Bond upon Subdivider's written request following the expiration of the warranty period, provided the City reasonably determines the landscaping is consistent with the requirements of the warranty and the irrigation system is operable. 2.1 Form of Security Instruments. All Security Instruments shall meet the following minimum requirements and otherwise shall be in a form reasonably acceptable to the City Attorney: (i) Any insurance company acting as surety shall have a minimum rating of A-IX, as rated by the current edition of Best's Key Rating Guide published by A.M. Best's Company, Oldwick, New Jersey, 08858; any bank acting as surety shall have a minimum rating of AA, as rated by Moody's or Standard & Poor's; (ii) Payments under the Security Instruments shall be required to be made (and, with respect to bonds, litigation shall be required to be instituted and maintained) in the County of Orange, State of California; (iii) Each of the Security Instruments shall have a minimum term of one (1) year after the deadline for Subdivider's completing the Works of Improvement, in accordance with paragraph 3 herein; (iv) The Security Instruments shall reference Subdivider's obligations under this Agreement, shall be irrevocable, and shall include as an additional obligation secured the responsibility to compensate City for all of the City's attorneys' 4 3. Time of Completion : fees and litigation expenses reasonably incurred enforcing its rights under the Security Instruments. All of the Works of Improvement shall be completed within twenty-four (24) months from the effective date of this Agreement. The time for completion may be extended by the City Engineer, in writing, for good cause shown by the Subdivider. Subdivider shall compensate the City for all costs reasonably incurred in having its authorized representatives perform the usual and customary engineering services during said extension as specified in Section 19 of this Agreement. In the event that Subdivider fails to complete the Works of Improvement within said period or any approved extension, the City may complete said Works of Improvement and shall be entitled to recover its reasonable cost and expenses thereof from its surety as herein provided. The City may require its surety, to pay the City in advance, sufficient monies to cover the City's cost in completing construction of said Works of Improvement. 3.1 Force Majeure : Notwithstanding the provisions of paragraph 3 herein, Subdivider's time for completion of the Works of Improvement shall be extended for the period of any enforced delay due to circumstances reasonably beyond the control and without the fault of Subdivider, including to the extent applicable adverse weather conditions, flood, earthquakes, strikes, lockouts, acts or failures to act of a public agency (including City), required changes to the Works of Improvement requ ired by City, and similar causes ; provided , however, that the period of any enforced delay hereunder shall not include any period longer than sixty (60) days prior to City's receipt of a written not ice from Subdivid e r or its contractor detailing the grounds for Subdivider's claim to a right to extend its time for performance hereunder. 3.2 Continuous Work: After commencement of construction of the Works of Improvement (or separable portion thereof), Subd ivider shall cause such work to be diligently pursued to completion , and shall not abandon the work for a consecutive period of more than thirty (30) days, events of force majeure excepted. 3.3 Reversion to Acreage: In addition to whatever other rights City may hav:e due to Subdivider's failure to timely perform its obligations hereunder, Subdivider recognizes that City reserves the right to revert the Property to acreage subject to the limitations and requirements set forth in California Government Code Sections 66499.11-66499.20- 3/4. In this regard, Subdivider agrees that if none of the Works of Improvement referenced herein have been completed within the specified "Time of Completion" referenced in paragraph 3 above or within the time allowed herein , whichever is the later, and if City 5 thereafter initiates proceedings to revert the Property to acreage, any improvements made by or on behalf of Subdivider after the date City in itiates such action shall not be considered in determining City's authority to revert the Property to acreage. 4. Effective Date of Agreement: This Agreement shall not become effective unless and until the Final Map of Tract No. 17441 has been approved by the City Council and also accepted for recordation by the County Recorder of the County of Orange. 5. Util ity Deposits -Statement: Prior to the commencement of any work to be performed within the area delineated on the Final Map of Tract No. 17441, the Subdivider must file a written statement with the City Clerk and City Engineer, signed by the Subdivider, to the effect that Subdivider has made all deposits legally required by any public utility corporation for the connection of any and all public utilities to be supplied by such public utility corporation within the subdivision. 6. Permits -Compliance with Law: Subdivider shall, at Subdivider's expense, obtain all necessary permits and licenses for the construction of required Works of Improvement, give all necessary notices and pay all fees and taxes required by applicable law. 7. Definitions and Ownership of Work of Improvements: The term "Work of Improvements" includes all of the following, to the extent required by the approved plans, specifications, and cost estimates within Exhibit "A" through Exhibit "G" to this Agreement: on-site and offsite grading, paving, curbs and gutters, pathways, storm drains, sanitary sewers, domestic and non -domestic water, utilities, such as electric, telephone and cable TV, conduits, gas lines, drainage facilities, traffic controls, landscaping and irrigation, and all other required facilities as shown in detail upon the plans and specifications which have been prepared by the Engineer of Record, RBF Consultants acting for Subdivider as approved by the City Engineer. No work on sai d Work of Improvements shall be commenced until this Agreement has been executed by the City. All required public Work of Improvements constructed or installed pursuant to this Agreement shall become the sole exclusive property of the City, without payment therefor, upon acceptance of said Work of Improvements by the City Council. 6 8. Obligations of Subdiv ider: Notwithstanding the fact that Subdivider's plans and specifications, completion of the Works of Improvement, and other acts are subject to approval of the City, it is understood and agreed that any approval by the City thereof shall in no way relieve Subdivider of satisfactorily performing said Works of Improvement or Subdivider's related obligations, if any, under this Agreement. The construction shall be done strictly in accordance with the plans and specifications, including supplementals and revisions prepared by Subdivider or its registered engineer, and as approved by the City as being consistent with the City's Municipal Code and Standards. Subdivider warrants to the City that its plans and specifications comply with said code and standards and that they are adequate to enable the Works of Improvement to be constructed and/or installed in a good and workmanlike manner and in accordance with responsible construction practices. In addition to the foregoing, Subdivider shall satisfy all the conditions of approval set forth on the City approved Tentative Map No. 17441 that are applicable to the property set forth on Final Map of Tract No. 17 441. Subdivider shall also perform all work and furnish all materials necessary, in the opinion of the City Engineer and on his order, to complete the Works of Improvement in accordance with the plans and specifications on file as hereinbefore specified , or with any changes required or ordered by said Engineer which , in his opinion, are reasonably necessary or required to complete this work. Subdivider shall notify the City regarding any property conveyance. Subdivider shall also provide the City wi th the California Bureau of Real Estate approved CC&R documents prior to recordation by the County of Orange. 9. Intent of Plans and Specific·ations : The intent of the plans and specifications referenced above is to prescribe a complete work of improvement, which Subdivider shall perform , or cause to be performed in a manner reasonably acceptable to the City Engineer (or designee) and in full com ·pliance with all applicable codes and the terms of this Agreement. Subdivider shall complete a functional or operable improvement or facility, even though the plans and specifications may not specifically call out all items of work required for a cont ractor to complete its tasks, incidental appurtenances, materials, and the like. If any om issions are made of information necessary to carry out the full intent and meaning of the plans and specifications, Subdivider or its contractor shall immediately notify its design engineer, who will seek approval of the City Engineer for furnishing of detailed instructions. In the event of any doubt or question arising regarding the true meaning of any of the plans, specifications, or related 7 documents, reference shall be made to the City Engineer, whose decision thereon shall be final. 10 . Su perin ten de nce by Subd ivide r: Subdivider shall supervise the Works of Improvement, or have a competent foreman or superintendent, satisfactory to the City Engineer, at the Subdivision at all times during the performance of the Works of Improvement, with authority to act for Subdivider. In the event the Subdivider is not properly supervising the Works of Improvement, the City Engineer may order suspension of all work within the Subdivision until the deficiency is adequately corrected. 11. Re p air and Re pl acem ents : Subdivider shall replace, or have replaced, or repair, or have repaired, as the case may be, or pay to the owner the entire cost of replacement or repairs, for all survey monuments or for any and all property damaged or destroyed by reason of any work done hereunder, whether such property be owned by the United States or any agency thereof, or the State of California, or any agency or political subdivision thereof, or by the City or by any public or private corporation, or by any person whomsoever or by combination of such owners . Any such repair or replacement shall be completed in a reasonable manner and subject to the reasonable approval of the City Engineer and affected property owner. 12 . Inspectio n by t he Cit y: Subdivider shall at all times maintain proper facilities and provide safe access for inspection by the City to all parts of the work. The Subdivider shall pay the cost of inspections. The City's inspector shall have the authority to stop any and all work not in accordance with the requirements contained or referenced in this Agreement. The inspection of the work by the City shall not relieve Subdivider of any obligations to fulfill its obligations under this Agreement, and unsuitable materials or work may be rejected notwithstanding that such materials or work may have been previously overlooked or accepted. No inspection or acceptance pertaining to specific parts of the Works of Improvement shall be construed as final acceptance of any part until the overall final acceptance by the City is made. Final acceptance shall not constitute a waiver by the City of defective work subsequently discovered. The date on which the Works of Improvement will be considered as complete shall be that date on which the City Council accepts the improvements and authorizes the City Clerk to file a Notice of Completion with respect thereto. 8 13. Authority of the City Engineer: All required improvements shall be constructed under the inspection of and subject to the reasonable approval of the City Engineer. Therefore, it is mutually agreed by the parties hereto that the City Engineer shall have the right to reasonably reject any or all of the work to be performed under this Agreement if such work does not conform with the City Codes and Standards and the plans and specifications mentioned herein, including subsequent revisions that may have been previously overlooked during the plan review process. Any damage to the improvements (existing or new) that occurs during or after installation of work performed under this Agreement shall be repaired or replaced, by the Subdivider, to the reasonable satisfaction of the City Engineer before the final acceptance of completed work and release of , security. In addition to the authority granted to the City Engineer elsewhere in this Agreement, the City Engineer shall have the authority to make a final decision in regard to all questions which may arise as to the quality and acceptability of materials furnished and work performed, and all questions as to the satisfactory and acceptable fulfillment of the terms of this Agreement by Subdivider and Subdivider's contractor(s). 14. Changes in the Work: The City Engineer, without invalidating this Agreement and without notification to any of the sureties referenced in Section 2 of this Agreement, may order extra work or may make changes by altering or deleting any portion of the Works of Improvement as specified herein or as deemed reasonably necessary or desirable by the City Engineer to accomplish the purposes of this Agreement and to protect the public health, safety, and welfare. It is mutually understood that it is inherent in the nature of the work contemplated by this Agreement that some changes in the plans and specifications and related documents may be necessary during the course of construction to adjust them to field conditions and to assure the protection of the public health, safety, and welfare. The City Engineer shall notify Subdivider or Subdivider's contractor(s) in writing (by Correction Notice) at the time a determination has been made to require changes in the Works of Improvement. No field changes performed or proposed by Subdivider or its contractor(s) shall be binding on the City unless approved in writing by the City Engineer. 15. No Warranty bv Ci ty : The. plans and specifications and related documents for the Works of Improvement have been prepared by or on behalf of Subdivider or its consultants or contractors, and City makes no representation or warranty, express or implied, to Subdivider or to any other person regarding the adequacy of the plans or specifications or related documents. 9 16 . Liability tor Performance , Injury or Damage: Neither the City nor any of its officers or agents shall be liable to Subdivider or its contractors for any error or omission arising out of or in connection with any work to be performed under this Agreement. Additionally, the City shall not be liable to the Subdivider or to any other person, firm , or corporation whatsoever, for any injury or damage that may result to any person or property by or from any cause whatsoever in, on, or about the subdivision of said land covered by this Agreement, or any part thereof. 17. Ind e mn if icatio ns and Relea se : Prior to the commencement of any work pursuant to this Agreement, Subdivider (if performing work itself) or Subdivider'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 favor of Subdivider 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 . The Subdivider hereby releases and agrees to defend (with legal counsel selected by Subdivider 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 Subdivider , the Subdivider's agents, employees , and subcontractors, while engaged in the performance of said work. 18. Li ability of Subdivid er: The Subdivider agrees that the use for any purpose and by any person of any and all of the streets, easements and improvements herein specified 10 shall be at the sole and exclusive risk of the Subdivider at all times prior to final acceptance by the City of the completed street and other improvements thereon and therein; provided that acceptance by the City shall in no way eliminate or lessen any of the Subdivider's obligations or undertakings contained in this Agreement. The issuance of any occupancy permits (if granted) by the City for buildings located within said subdivision shall not be construed in any manner to constitute an acceptance and approval of any or all of the required improvements in said subdivision. 19. Subdivider's Expenses: The Subdivider shall pay these additional expenses: a. The Subdivider shall cause to be made and/or pay for soil tests made by a reputable Geotechnical consultant/firm to determine stability, gradation , bearing , and resistance value of soils within the subdivision from which to determ i ne the nature and design of appropriate improvements. The Subdivider shall also pay for all compaction and related tests necessary to determine that all fill work and the utility trench backfill has been satisfactorily placed. b. All service (including plan check and inspection), impact and connection fees as established by City shall be paid for each lot in the subdivision in accordance with the City Code. c. All actual costs for , design , plan check , development process and inspection incurred by the City in evaluating any proposed or agreed upon change in work. In no event shall Subdivider be entitled to additional inspections or final inspection and acceptance of any of the Works of Improvement until all the City fees and charges have been . fully paid, Including, without lim it ation , charges for appl icable penalties and additional required inspections. d. Subdivider shall compensate the City for all actual costs reasonably incurred in having its authorized representatives make the usual and customary engineering services beyond the specified "Time of Completion" referenced in paragraph 3 above. Said actual costs include: inspection of Works of Improvement, engineer design review, plan check and project development process. Subdivider ·agrees to pay the cost of said the City services within forty-five ( 45) days of invoice date, or as determined by the City Engineer. 20. Relationship nf Contractors: It is hereby mutually covenanted and agreed by the parties hereto that Subdivider's contractors are not agents of the City, and that the contractors' relations to the City, if any, are those of independent contractors. 21. Certification of Satisfactory Completion: Upon the satisfactory completion of the Works of Improvement by the Subdivider, the City Engineer shall certify that the Works of Improvement have been satisfactorily completed. 22 . Repairs or Reconstruction of Defective Work: If, within a period of one year after the City Council acceptance of the improvement work performed under this Agreement, any of the improvements or work done under this Agreement fail to fulfill any of the requirements of this Agreement, or the specifications referred to herein, Subdivider shall without delay and without any cost to the City (upon receipt of written notice from the City), repair or replace or reconstruct any defective or otherwise unsatisfactory part or parts of the work or structure. Should Subdivider fail to act promptly or in accordance with this requirement after receipt of written notice from the City, or should the exigencies of the case require repairs or replacements to be made before Subdivider can be notified in writing, the City may, at its option, make the necessary repairs or replacements or perform the necessary work and Subdivider shall pay to the City the actual reasonable cost of such repairs plus an amount equivalent to the current general the City overhead costs. 23. Warranty: Without limiting the foregoing, Subdivider warrants and guarantees: materials used and workmanship performed on said Works of Improvement for a period of one (1) year after completion and acceptance thereof by the City, the setting of all required Final Map monuments and agrees to maintain or cause to be maintained all required landscaping in a healthy condition for a period of one (1) year after completion and written acceptance thereof by the Director of Public Works and Utilities. All security instruments shall be submitted to the City in accordance with Section 2 of this Agreement. The warranty provided herein shall not be in lieu of, but shall be in addition to, any warranties or other obligations otherwise imposed by 1aw. 24. Default: 24.1 Remedies Not Exclusive: In any case where this Agreement provides a specific remedy to the City for a default by Subdivider hereunder, such remedy shall be in addition to , and not exclusive of, the City's right to pursue any other administrative , legal , or equitable remedy to which it may be entitled. 24.2 City's Right to Perform Work: In addition to whatever other rights or remedies it may have for Subdivider's default hereunder, in the event 12 Subdivider shall fail to timely perform any work required to be performed under this Agreement and such failure shall continue for a period of thirty (30) days after receipt of written notice of default from the City, or thereafter Subdivider shall fail to diligently pursue the cure of any such default to completion, the City shall have the right to enter into the Property and perform any of the uncompleted work by force account or contract or both and thereupon recover from Subdivider and the surety company, or both , the full cost and expense thereby incurred by the City. 24.3 Attorney 's Fees and Costs: In the event of any litigation arising out of Subdivider's performance of its obligations under this Agreement or under any of the Security Instruments referenced herein , the prevailing party in such action , in addition to any other relief which may be granted, shall be entitled to recover its reasonable attorney's fees and costs. Such attorney's fees and costs shall include fees and costs on any appeal, and in addition a party entitled to attorney's fees and costs shall be entitled to all other reasonable costs incurred in investigating such action, taking depositions and discovery , retaining expert witnesses, and all other necessary and related costs with respect to the litigation. All such fees and costs shall be deemed to have accrued on commencement of the action and shall be enforceable whether or not the action is prosecuted to judgment. 25. Notice of Completion: Upon approval of the Works of Improvement by the City Engineer and acceptance by the City Council, the Subdivider shall file with the Orange County Recorder a Notice of Completion of the improvements herein specified. 26. Filing of Improvement Plans: Upon completion of the job and prior to final acceptance of the Works of Improvement by the City, the Subdivider shall submit to th e City Engineerfor review and approval, one Mylar (4 mils) set of "record" drawings as well as digital copies of all improvement plans in acco rdance with the latest edition of the City of San Juan Capistrano Digital Submission Standards. These drawings shall be certified and shall reflect the job as actually constructed, with all changes incorporated therein. 27 . Notices: All notices to be given by the parties hereto shall be in writing and served by depositing same in the United States Post Office, postage prepaid and return receipt requested. 13 Notices to the City shall be in duplicate and addressed as follows: City of San Juan Capistrano City Clerk's Office 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn.: City Clerk or to such other location as City directs. Notices to Subdivider shall be addressed as follows: Development Solutions OAK, LLC 1302 Camino Del Mar, Del Mar, CA 92014 Attn.: Tim O'Grady, Title: Executive Vice President, Land Development or to such other location as Subdivider directs . 28. Assignment: This Agreement shall not be assignable by Subdivider without written consent of the City, which consent shall not be unreasonably withheld. 29 . Enforcement; No Third Party Beneficiaries: This Agreement may be enforced solely by the City and Subdivider or its assignee. There are no third party beneficiaries of this Agreement. 14 IN WIT NESS WHEREOF, two (2) identical counterparts of this Agreement, each of which shall for all purposes be deemed an orig [MI th ereo f, have been duly executed by the Subdivider herein named on t he ~day of frfLG.H , 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. -CITY OF SAN JUAN CAPISTRANO- ~..(,L-C-t Dev e f~~ol, OAK , LLC By ~~ / Name: Judd GUstS Vice President Its : ---------------------Authorized Signatory (Attach Notary Acknowledgement) -SUBDIVIDER-- t ~~s:2._ Kevin J. Hiniker _......_L.,.,...U!J__d}J~---'--'-"1J-->.._..._~;l~ __ Jce...t:!:esident Att a~h ments: Exhibit "A"-Exhibit "G" 15 PUBLIC AGENCY FORM OF ACKNOWLEDGEMENT State of California ) County of Orange ) ss. City of San Juan Capistrano ) (Gov't Code 40814 & Civil Code 1181) On March 24, 2015 , before me, hri ty Jal<l, De-puty City Clt'rk, personally appeared Derek Reeve, Ma or and Han Van igtcn, C ity Attorncv, who proved to me on the basis of satisfactory evidence to the be person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity, and that by his/her/there signature on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. (SEAL) Capacity Claimed by Signers Mayor City Attorney Title Signe.r is Representing City of San Juan Capistrano WITNESS my hand and official seal. OPTIONAL Description of Attached Document Title or Type of Document Subdivision Improvement Agreement~ Final Tract Map 17 441 SUBDIVIDER ACKNOWLEDGMENT A notary public or other office 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 G-aHf-Gfnia-tl\.lrvfl!..~r~ County of Wt.."'"'~'"'"' On '3 I.=~E 1..ot_s-before me, l-IAIJ>SP\1 -Tsc t.t--L.i"> r:r (here insert name and title of the officer) personally appeared ....\~D G-IlA's who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct WITNESS my hand and official seal. Signatur(fiw~hviA 16 Exhibit A WORKS OF IMPROVEMENT CERTIFICATION OF PARTIAL COMPLETION OF SUBDIVISION IMPROVEMENTS Final Tract Map 17441 I hereby certifiy that the following improvements in the Oaks Subdivision Final Tract Map 17 441 have been completed, to wit: Schedule of Improvements Total Amount Percent Complete Remaining Amount or Bond Amount Exhibit B Street Improvements $ 262,000.00 0% $ 262,000.00 Exhibit C Water Improvements $ 580,000.00 0% $ 580,000.00 Exhibit D Sewer Improvements $ 490,000.00 0% $ 490,000.00 Exhibit E Drainage Improvements $ 169,000.00 0% $ 169,000.00 Exhibit F Landscape and Irrigation $ 879 ,000.00 0% $ 879 ,000.00 Exhibit G Monumentation $ 30,000.00 0% $ 30,000.00 Total Works of Improvement $ 2,410,000.00 The Performance Bond is for the amount of Two Million Four Hundred Ten Thousand dollars 1 $ 2,410 ,000.00 ).(100% of Column 4) ------- The Laborers and Materialmens Bond is for the amount o Two Million Four Hundred Ten Thousand dollars 1 $ 2.410.000.00 ).(100% of Column 4) ------- SUBMITTED BY ENGINEER OF RECORD Two Million Four Hundred Ten Thousand dollars ! ! DATED: ;!:_ /?:, fr>· ) ; ACCEPTED BY CITY •'"/1-i l f' DATED: /. Y/l' '. -· --_ ... -I ! ( I I ''I ($ 2,410,000 ). Victoria G Whitaker, RCE Number 65009 RBF Consulting 14725 Alton Parkway Irvine, CA 92675 / /' ' { 1 Steve Kooyman, P.E. Assistant Public Works Director Subdivision Improvement Agreement Oaks SubdivisiorJ. FTM 17441 1 of ·1 Exhibit A Exhibit B SCHEDULE OF STREET IMPROVEMENTS Owner and Subdivider agree to improve all streets and roads within the Final Tract Map 17441 of the Oaks Subdi~lslon as required by the City in accordance with the plans and speciflcalions entitled "The Oaks-Phase 3 Street Improvement Plans and Storm Drain Plans Tentative Tract No. 17441" thereof by the City Engineer on February 2, 2015, and as set forth in the following Schedule of Street Improvements: Item Description Quantity Units 4"AC over a• AS 61 '180 SF Concrete Strip 4,950 LF Subtotal Street Improvement Cost (rounded 1 ,000) 10% Contingency Unit Cost $ 2 .75 $ 10 .00 10% Soft Cost (CM.Insp, Survey, Admin) Total Street Improvement Cost Sub<!Mslon lmprO"ement&·Aa•eem""l Oa-ks SubdiVIsion, FTM 17441 Total Cost $ 166,2~5.00 $ 49 ,500 .00 $ 218,000.00 s 2 1.600.00 s 2 1,800.00 $ 262,000.00 1 ol 1 E>/1ib~B Exhibit C SCHEDULE OF WATER IMPROVEMENTS Owner and Subdivider agree to instalf the Water distribution system within the Final Tract 17441 of the Oaks Subdivision as required by the City in accordance with the plans and specifications entitled "The Oaks-In Tract Phase 3 Domestic Water Plans and Sanitary Sewer Plans Tract No. 17441" thereof by the City Engineer on February 2, 2015, and as set forth in the following Schedule of Water Improvements: Item Description Quantity 8" Mainline, w/Bedding & Backfill 2,605 8" Valve, including 1 Raise 12 Fire Hydrant Assembly, Complete 5 1" Air Vacuum/Air Release Valve 1 1" Private Water Service 32 Connect to Existing Line Including Valve 1 Thrust Block 24 8" Cap 1 8" Fixtures 21 Remove 2" Blow-off 1 Backflow Preventer Service 1 Casing 40 Flex Coupling 2 Subtotal Water Improvement Cost (rounded 1,000) 1 0% Contingency Units LF EA EA EA EA EA EA EA EA EA EA LF EA 10% Soft Cost (CM, lnsp, Survey, Admin) Total Water Improvements Cost Subdivision Improvements Agreement Oaks Subdivision. FTM 17441 Unit Cost $ 120.00 $ 3,500.00 $ 10,000.00 $ 3,000.00 $ 1,100.00 $ 18,000.00 $ 400.00 $ 150.00 $ 250.00 $ 200.00 $ 5,000 .00 $ 40.00 $ 250.00 $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ Total Cost 312,600.00 42,000.00 50,000.00 3,000.00 35,200.00 18,000.00 9 ,600 .00 150.00 5,250.00 200.00 5,000.00 1.600.00 500.00 483,100.00 48,310.00 48,310.00 580,000.00 1 of 1 Exhibit c Exhibit D SCHEDULE OF SEWER IMPROVEMENTS Owner and Subdivider agree to install the sewer collection and disposal system within the 17441 of the Oaks Subdivision as required by the City in accordance with the plans and specifications entitled "The Oaks-In Tract Phase 3 Domestic Water Plans and Sanitary Sewer Plans Tract No. 17441" thereof by the City Engineer on February 2, 2015, and as set forth in the following Schedule of Sewer Improvements: Item Description ll" PVC Main Line with Bedding and Backfill 48" Standard Manhole 4" Sewer Lateral 60" Standard Manhole Concrete Encasement 2 Sack Concrete Slurry 8" Plug SUB· TOTAL SEWER IMPROVEMENTS 10% Contin!Jency Quantity 2,365 14 496 1 1 2 2 10% Soft Cost (CM, Insp. Survey, Admin) TOTAL SEWER IMPROVEMENTS Subdivision lmprovoments Agreement Ollks Subdivision, FTM 17441 Unit LF EA LF EA EA EA EA Unit Price $ 120.00 $ 7,500.00 $ 18.00 $ 10,000 00 $ 200.00 $ 50.00 $ 100.00 $ $ $ $ $ $ $ $ $ Total Cost 283,800 .00 105,000.00 8,928.00 10,000.00 200.00 100.00 200.00 408,223.00 $40,822.80 $40,822.80 490,000.00 1 ol1 Exhibit D Exhibit E SCHEDULE OF DRAINAGE IMPROVEMENTS Owner and Subdivider agree to install the Drainage improvements within the Final Tract Map 17 441 of the Oaks Subdivision as required by the City in accordance with the plans and specifications entitled "The Oaks-Phase 3 Street Improvement Plans and Storm Drain Plans Tentative Tract No . 17441" thereof by the City Engineer on February 2, 2015, and as set forth in the following Schedule of Street Improvements : Item Description Quantity 18" HDPE, w/Bedding & Sand Backfill 230 24" HDPE, w/Bedding & Sand Backfill 895 36" HDPE, w/Bedding & Sand Backfill 160 Area Drain 1 Concrete Collar 2 Modified Inlet Type I 4 Remove Brick & Mortar Plug 2 Junction structure Type I 5 Modified Junction structure Type t 1 Inlet Type V 2 30" RCP Sleeve 12 2 Sack Slurry 3 SUB-TOTAL STORM DRAIN IMPROVEMENTS 10% Contingency 10% Soft Cost (CM, lnsp, Survey, Admin) TOTAL STORM DRAIN IMPROVEMENTS Subdivision Improvements Agr~ment Oaks Subdivision, FTM 17441 Unit LF LF LF EA EA EA EA EA EA EA LF EA Unit Price $ 65.00 $ $ 70.00 $ $ 85 .00 $ $ 250.00 $ $ 1,300.00 $ $ 4,000.00 $ $ 300 .00 $ $ 4 ,000.00 $ $ 5,000.00 $ $ 2 ,000.00 $ $ 80.00 $ $ 50.00 $ $ $ $ $ Total Cost 14,950.00 62,650.00 13.600.00 250.00 2 ,600.00 16,000.00 600 .00 20,000 .00 5,000.00 4.000.00 960.00 150.00 140,760.00 14,076.00 14,076.00 169,000.00 1 ol1 Exhibit E Exhibit F SCHEDULE OF LANDSCAPE AND IRRIGATION IMPROVEMENTS Owner and Subdivider agre e to install the Landscape and Irrigation improvements within the Final Tract Map 17441 of the Oaks Subdivision as required by the City in accordance with th e plans a nd specifications entitled " The Oak s: Landscape Plans f o r Shared Entry , Residential , and Orteg a thereof approved by the City Engineer on February 2 , 2015 , and as set forth in the following Schedule of L a ndscape and Irrigation Improvements: Item Description Quantity Units Unit Cost Total Cost Construction Hardscape AC Bike Path at SJC Trail 20,102 SF Stabilized Decomposed Granite Walk 3,700 SF Walls 6 ' Slump Blo c k Wa ll with Sack Finish 1 ,057 LF E.V.A. Gate 1 EA Retaining Wall at Ortega 605 LF Construction Total Landscape Trees Trees (15 Gallon) 9 Trees (24" box) 17 Trees (36" box) 13 Trees (48" box ) 21 Trees (60" box) 15 Trees (96" box ) 1 Relocate Boxed Oaks 12 Shrubs -1 gallon 7,082 Shrubs-5 gallon 1 '191 Shrubs· 15 gallon 415 Ground Covers 1,065 Bark Mulch 80,30 3 Automatic Irrigation Shrub Irrigation (spray-he ad) 90 ,195 180 Day Maintenance 90 ,195 Fine Grading and Soil Preparati on 80,303 Landscape Total Subtotal Landscape and Irrigation Improvements Cost 10% Contingency 10% Soft Cost (CM , Insp . Survey, Admin) Total landscape and Irrigation Improvements Cost Subdivision lmprovem&nts Agr&oment Oaks Subdiv ision , FTM 17441 EA EA EA EA EA EA EA EA EA EA SF S F SF SF SF $ 3.50 $ 70,357.00 $ 4 .00 $ 14,800.00 $ 100 .00 $ 105.700.00 $ 2,500 .00 $ 2,500 .00 $ 35 .00 $ 21 '175 .00 $ 214,532.00 $ 125.00 $ 1,125.00 $ 200 .00 $ 3,400.00 $ 700 .00 $ 9,100.00 $ 1,250 .00 $ 26,250.00 $ 2 ,500 .00 $ 37,500 .00 $ 8,500 .00 $ 8,500.00 $ 12,000.00 $ 144,000 .00 $ 7.50 $ 53,115.00 $ 25.00 $ 29,775.00 $ 60 .00 $ 24,900.00 $ 0 50 $ 532 .50 $ 0 .25 $ 20 ,075 .75 $ 1.50 $ 135,292.50 $ 0 .12 $ 10 ,823.40 $ 0 .18 $ 14,454.54 $ 517,716.69 $ 732,250.69 $ 73 ,225.07 $ 73,225 .07 $ 879,000.00 1 o11 E.xhlblt F Exhibit G SCHEDULE OF MONUMENTATION Owner and Subdivider agree to install the Survey Monuments within the Final Tract Map 17 441 of the Oaks Subdivision as required by the City in accordance with the Final Tract 17 441 as approved by the City on February 2, 2015, and as set forth fn the following Schedule of Monumentation: Item Description Quantity Units Unit Cost Total Cost Monumentation Subtotal Monumentatlon Cost 10% Contingency 1 10% Soft Cost {CM, lnsp, Survey, Admin) Total Monumentation Cost Subdivision Improvements Agreement Oaks Subdivision, FTM 17441 LS $25,000.00 $ $ $ $ $ 25,000.00 25,000.00 2,500.00 2,500.00 30,000.00 1 of 1 ExhlbltG RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Recording Requested by and When Recorded Mail To: City of San Juan Capistrano Attention: City Clerk 32400 Paseo Adelanto San Juan Capistrano, CA 92675 APN(s): '------------' SPACE ABOVE THIS LINE FOR RECORDER'S USE EXEMPT FROM RECORDING FEES PURSUANT TO GOV. CODE § 27383 AMENDMENT NO. 1 TO SUBDIVISION IMPROVEMENT AGREEMENT FINAL TRACT NO. 17441 between THE CITY OF SAN JUAN CAPISTRANO a California municipal corporation AND DEVELOPMENT SOLUTIONS, OAK, LLC a Delaware limited liability company ATIACHMENT7 AMENDMENT NO. TO SUBDIVISION IMPROVEMENT AGREEMENT FINAL TRACT NO. 17441 1. Parties and Date. This Amendment No. 1 to Subdivision Improvement Agreement Final Tract No. 17 441 ("Amendment") is made and entered is as of this 18th day of January, 2016, by and between the City of San Juan Capistrano, a municipal organization organized under the laws of the State of California, with its principal place of business at 32400 Paseo Adelanto, San Juan Capistrano, CA 92675 ("City") and Development Solutions Oak, LLC, a Delaware limited liability company, with its principal place of business at 1302 Camino Del Mar, Del Mar, CA 92015 ("Subdivider"). City and Subdivider are sometimes individually referred to as "Party" and collectively as "Parties". 2. Recitals. 2.1 Agreement. The City has conditioned the approval of the final map for Tract No. 17441, real property located within the City, a legal description of which is attached hereto as Exhibit "A" and incorporated herein by reference (the "Property"), on the timely construction of completion of public improvements as set forth in the Subdivision Improvement Agreement Final Tract No. 17441 dated February 3, 2015, by and between City and Subdivider ("Agreement"). 2.2 Amendmen t Purpose. The City and Subdivider desire to amend the Agreement in order to remove certain improvement obligations of the Subdivider and provide for the payment by the Subdivider to the City of a cash deposit in order to allow the City to provide such improvements, should the City determine to do so. 3. Terms. 3.1 New Section 1.1. A new Section 1.1 of the Agreement is hereby added to read as follows: "1.1 Removal of Trail and Bikeway Obligations/Deposit In Lieu . A. The term "Works of Improvement" is hereby amended to remove those Trail and Bikeway improvements that are listed as Condition No. 1.22 (Trail and Bikeway Dedications) in the Conditions of Approval for Tentative Tract Map 17441. Subdivider shall be under no legal obligation to install and/or construct such Trail and Bikeway improvements. B. Concurrently with Subdivider's execution of this Amendment, Subdivider shall deposit with the City a cash deposit in the amount of One Hundred Forty Thousand Dollars ($140,000.00) ("In Lieu Amount"), which the Parties estimate to be the reasonably estimated cost of constructing and installing the Trail and Bikeway improvements. This Amendment shall not be effective until that date (the "Effective Date") that Subdivider pays 2 such In Lieu Amount to the City. Upon payment of said In Lieu Amount, the City Engineer shall take any and all steps necessary to reduce the Faithful Performance Bond and Labor and Materials Bond by Seventy Thousand Three Hundred Fifty Seven Dollars ($70,357.00). C. City shall hold the In Lieu Amount for a period of ten (1 0) years following the Effective Date of this Amendment. City may, but is not obligated to, use the In Lieu Amount for Trail and Bikeway improvements; provided that the City may not use the In Lieu Amount for anything other than trail improvements at the location previously required by Condition 1.22. Nothing contained in this Amendment shall be construed as obligating the City to construct any or all of the Trail and Bikeway improvements. D. Other than the In Lieu Amount, Subdivider shall not be obligated to pay for or contribute to the cost of any Trail and Bikeway improvements constructed by the City, even if those costs exceed the In Lieu Amount, it being the intention of the City and Subdivider that the In Lieu Amount shall satisfy any and all obligations of Subdivider with respect to any such improvements. E. If and to the extent that the City has not, before the end of the ten (1 0) year period referenced above, used the In Lieu Amount (or any unused portion thereof), the City shall remit the In Lieu Amount (or any unused portion) to Subdivider. Prior to any change in its corporate organization (including, ceasing to exist), Subdivider shall notify City, in writing, of the appropriate successor in interest to Subdivider's rights under this section (D)." 3.2 Contin uin g Effect of Agreement. Except as amended by this Amendment, all other provisions of the aforementioned Agreement remain in full force and effect. From and after the date of this Amendment, whenever the term "Agreement" appears in the Agreement, it shall mean the Agreement as amended by this Amendment. 3.3 Adequate Consideration. The Parties hereto irrevocably stipulate and agree that they have each received adequate and independent consideration for the performance of the obligations they have undertaken pursuant this Amendment. 3.4 Counterparts. This Amendment may be executed in counterpart originals, which taken together, shall constitute one and the same instrument. [SIGNATURES ON FOLLOWING PAGE] 3 SIGNATURE PAGE TO AMENDMENT N0.1 TO SUBDIVISION IMPROVEMENT AGREEMENT FINAL TRACTS NO. 17441 CITY OF SAN JUAN CAPISTRANO, a DEVELOPMENT SOLUTIONS, OAK, LLC, California municipal corporation a Delaware Limited Liability Company By : By: Pam Patterson, Mayor Judd Gilats, Vice President Dated : Dated : ATTEST: By : By: Maria Morris, City Clerk Kevin J. Hiniker, Vice President Dated : Dated : APPROVED AS TO LEGAL FORM : By: Jeffrey S. Ballinger, City Attorney Dated : 4 EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY TRACTS NO. 17441 Real Property in the City of San Juan Capistrano, County of Orange, State of California described as follows: [INSERT L~GAL DESCRIPTION] APN(s) .._ ________ ____. 5