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15-0421 PACIFICA Amd 1 SIA TR 16749 - RECORDEDRECORDING REQUESTED BY: 32400 Paseo Adelanto San Juan Capistrano, OA 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 Hunh w"''0^^"ge County Hugh Nguyen, Clerk-RecordPr ^ NO FEE * I R 0 0 D ? 4 9 0 1 9 fl 2015000225898 8:10 am 05/01/15 47 411 A17 23 0.00 0.00 0.00 0.00 66.00 0.00 0.00 0.00 This Space for Recorder's Use Only r AMENDMENT #1 AND REINSTATEMENT TO SUBDIVISION IMPROVEMENT AGREEMENT {Subdivision Improvement Agreement Tentative Tract Map 16749) This AMENDMENT #1 AND REINSTATEMENT TO SUBDIVISION IMPROVEMENT AGREEMENT for Tentative Tract Map 16749 {"Amendment") is dated as of ny)r\ Pi\ 2015, and entered into by and between LV PACIFIC POINT LLC, a Delaware Limited Liability Company ("Owner"), whose mailing address is 3121 Michelson Drive, Suite 200, Irvine, CA 92612 and the City of San Juan Capistrano, a California municipal corporation ("City"). RECITALS: WHEREAS, SJD PARTNERS, LTD., a California limited partnership ("Former Subdivider") entered into a Subdivision Improvement Agreement Tentative Tract Map 16749 with the City dated December 6, 2005, and recorded in the Official Records of Orange County, California ("Official Records") on December 29, 2005, as Instrument No. 2005001036237 ("Original Agreement"), which provides for Former Subdivider to construct certain Works of Improvement and perform other obligations relating to the filing of a Final Map of Tract 16749; and, WHEREAS, Cwner is the successor-in-interest to Former Subdivider and the owner of that certain parcel of land situated in the City of San Juan Capistrano, Crange County, generally described as Vested Tentative Tract Maps 14196 and 15609; and, WHEREAS, the Cwner was assigned and assumed the responsibility to perform that certain Work of Improvement thereon as hereinafter set forth and as identified within the Criginal Agreement for Tentative Tract Map 16749; and, -1- Amendment #1 and Reinstatement of SIA Tr16749 WHEREAS, Owner proposes to do and perform certain Works of Improvement thereon as hereinafter set forth; and, WHEREAS, Owner has requested, and City has agreed, to extend the time period for Owner to complete the Works of Improvement required under the Original Agreement, as set forth herein; and, WHEREAS, Owner has requested, and City has agreed, to replace the existing Performance and Material and Labor Bonds ("Bonds") with new Bonds for 100% of the remaining Works of Improvement as defined within this Amendment in the amounts shown on Exhibit "A" attached hereto; and, WHEREAS, By this Amendment, City and Cwner propose to restate and amend the Criginal Agreement in its entirety as set forth herein. All terms not otherwise defined or amended herein shall have the meaning ascribed in the Criginal Agreement. 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, the parties hereto agree as follows: AGREEMENT 1. General Requirements: Owner shall comply with all the remaining requirements specified in the (a) "AMENDMENT TC IMPROVEMENT AND REIMBURSEMENT AGREEMENT (ASSESSOR'S PARCELS #666-301-01, 666-301-09, 675- 361-01, 675-361-03, 675-361-04. 675-361-05, 675-081-03, 675-081-04, 675-081-10, and 675-081-14)" dated November 15, 2005, and its subsequent amendment and restatement dated , 20 , (Collectively referred to herein as the "Improvement and Reimbursement Agreement"); (b) the "WATER FACILITIES AGREEMENT - SUNCAL PROPERTIES", dated September 2, 2003, its subsequent amendment dated March 16, 2004 (collectively referred to herein as the "Water Facilities Agreement"); (c) the "AGREEMENT FOR MCDIFICATICNS TC WATER FACILITIES TC SERVE TRACT 14196", dated May 4, 1999, and its subsequent amendment dated , 20 , (Collectively referred to herein as the "Water Facilities to Serve Tract 14196 Agreement") and (d) the applicable Conditions of Approval set forth in City Council Resolution No. 92-6-16-04 (for Tentative Tract Map 14196) and all applicable Conditions of Approval set forth in City Council Resolution No. 03-09-16-06 (for Tentative Tract Map 15609) and shall, at its own cost and expense, provide all required tests, design work, equipment, materials and labor in order to complete all of the works of improvement (the "Works of Improvement") set forth in Exhibit "A" -2- Amendmenl #1 and Reinstatement of SIA Tr16749 hereto and as defined within the approved Improvement Plans for Tract 16749, to the satisfaction of the City Engineer. Such Works of Improvement shall include, but not be limited to, the undergrounding of the overhead utilities, the placement of curb markers at all proposed street catch basin inlet structures in accordance with the National Pollution Discharge Elimination System (NPDES) requirement, and the construction of all required off-site infra-structure and circulation improvements as set forth in Paragraphs 1.2 and 1.4 below to the satisfaction of the City Engineer. 1.1 Fair-Share Circulation Improvement Participation. Prior to the issuance of the first (1st) building permit, other than model homes, the applicant shall financially contribute for the project's fair share traffic generation for the existing La Novia Avenue Improvement, from Valle Road to 2500 feet east (15% fair share), which are included within the Improvement and Reimbursement Agreement, as well as, any improvements not included in the Capistrano Circulation Fee Program (CCFP), as identified in the approved Environmental Impact Report (EIR) traffic impact analysis. This financial participation shall be In addition to paying CCFP fees. The applicant's financial participation shall include right-of-way acquisition, design, and construction including, but not limited to, grading, streets, sidewalks, landscaping, retaining walls, drainage structures, utility relocation, and traffic signal improvements in accordance with the City's Master Plan of Streets and Highways. Additionally, prior to the issuance of the first (1st) building permit, other than model homes, the applicant shall financially contribute for the project's fair share traffic generation on the following improvements. The final cost estimate shall be reviewed and determined by the City Engineer: Ortega Highway & 1-5 Southbound Ramps: Improvements: Construct an additional southbound right-turn lane and re-stripe existing center lane to a left/thru lane. Fair share: 7.3% Ortega Highway & 1-5 Northbound Ramps: Improvements: Construct westbound free right turn lane. Fair share; 0.8% Furthermore, prior to the issuance of the one hundred and fifty-first (151st) building permit, other than model homes, the applicant shall financially contribute for the project's fair share traffic generation on the following improvements which are included within the Improvement and Reimbursement Agreement. The final cost estimate shall be reviewed and determined by the City Engineer: La Novia Widening Naile Road Proiect to 2500 feet east -3- Amendment #1 and Reinstatement of SIA Tr16749 Improvements: Widening to secondary standards. Fair share: 15% Sianalization San Juan Creek at Valle Road Proiect Improvements: Signals and intersection improvements. Fair share: 38% 1.2 Off-Site Circulation Improvement Construction. Prior to the issuance of the 1^' Certificate of Occupancy, the applicant shall design and construct the off-site improvement listed below to its ultimate standard configurations in accordance with the City's Master Plan of Streets and Highways, in accordance with the provisions within the Improvement and Reimbursement Agreement, and to the satisfaction the City Engineer. All easements, right-of-way acquisitions, dedications and permits needed from any agency to accommodate said improvement shall be obtained by the applicant, with City's assistance. Any deferral in the timing of this condition, due to unforeseen delays, shall be subject to review and approval by the City Engineer. Camino Las Ramblas & Via California: Improvements: Install a traffic signal and construct a separate southbound right-turn lane. Fair Share: 94% 1.3 Construction of Avenida CaliforniaA/ista Marina. Prior to issuance of the one hundred fifty-first {151st) Residential Building Permit within Vesting Tentative Tract Maps 14196 and/or 15609, the applicant shall complete, to the satisfaction of the City Engineer, the construction of Avenida California and Vista Marina Street, from the extension of Via California, all the way to its intersection with Valle Road. For any phases of development prior to issuance of the 151^* Residential Building Permit any section of Avenida California Street and Vista Marina leading to a developed subdivision phase, within Tentative Tract Map 15609 and/or 14196, shall be completed from Via California to that phase, prior to issuance of the first building permit of such phase. Any deviation shall be subject to review and approval by the City Engineer. 1.4 Off-Site Circulation Improvement Construction. Prior to the completion of Avenida CaliforniaA/ista Marina, or the issuance of the 151^^ Building Permit, whichever comes first, the applicant shall design and construct the off-site improvements listed below to their ultimate standard configurations in accordance with the City's Master Plan of Streets and Highways, in accordance with the provisions within the Improvement and Reimbursement Agreement, and to the satisfaction the City Engineer. All easements, right-of-way acquisitions, dedications and permits needed from any agency to accommodate said improvements listed below shall be -4- Amendment #1 and Reinstatement of SIA Tr16749 obtained by the applicant, with City's assistance. Any deferral in the timing of this condition, due to unforeseen delays caused by the City or outside regulatory agencies, shall be subject to review and approval by the City Engineer. Valle Road & San Juan Creek Road: Improvements: Construct a northbound left-turn lane. Fair Share: 8.4% Valle Road from San Juan Creek Road to La Novia Avenue: Improvements: Widen Valle Road to a two-lane divided roadway including traffic signal and power pole relocations, necessary grading, retaining walls, curb gutter and sidewalks, and slope landscaping improvements pursuant to the approved improvement plans. Fair Share: 38% Valle Road from 1-5 to Forester Ranch Road: Improvements. Widen Valle Road to commuter standards, including necessary grading, retaining walls, curb gutter and sidewalks, and slope landscaping improvements pursuant to the approved improvement plans. Fair Share: 72% La Novia Avenue & Valle Road/1-5 Northbound Ramos: Improvements: Construct the La Novia Avenue approach, Valle Road approaches, and the 1-5 NB Ramps as part of a circular one-lane with shoulders round-a-bout pursuant to the approved improvement plans. Fair Share: 37% 2. Security: A. Owner shall, at all times, beginning with the execution of this Amendment, guarantee Owner's performance of this Amendment by providing City with the following security instruments (the "Security Instruments"), as required by the State Subdivision Map Act, on forms approved by City for the purposes and in the amounts as follows: (i) A Faithful Performance Bond to ensure faithful performance of this Amendment in regard to the Works of Improvements be installed by Owner in the amount of 100% of the estimated cost of construction of such Works of Amendment #1 and Reinstatement of SIA Tr16749 -5- Improvements (110% for remaining water related improvements to be installed by Owner) as shown in Exhibit "A" attached hereto; and, (11) A Labor and Materials Bond to secure payment to any contractor, subcontractor, persons renting equipment or furnishing labor or materials for the Works of Improvements required to be constructed or installed pursuant to this Amendment in the additional amount of 100% of the estimated cost of construction of the Works of Improvements to be installed Owner (110% for the remaining water related improvements to be installed by Owner) as shown in Exhibit "A" attached hereto; and, (iii) A Subdivision Monument Bond in the amount of 100% of the estimated cost of setting subdivision monuments as shown in Exhibit "A". B. In order to guarantee and warranty the Works of improvement and in addition to the security instruments referenced in Article 2(A), Owner shall provide to City the following Security Instruments: (i) Prior to the City's final acceptance of the Works of Improvement and recordation of a Notice of Completion, Owner shall provide to City a Warranty Bond for Works of Improvement warranting the accepted Works of Improvement for a period of one (1) year following said acceptance 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. (11) Prior to the City's final acceptance of the landscape and irrigation Works of Improvement, Owner shall provide a Landscape and Irrigation Warranty Bond warranting the landscape and irrigation Works of Improvement for a period of one (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. The Landscape and Amendment #1 and Reinstatement of SIA Tr 16749 -6- Irrigation Warranty Bond shall be held by the development's Homeowners' Association ("HOA"). All Security Instruments required by this Amendment, with the exception of the Landscape and Irrigation Warranty Bond, which is submitted to the development's HOA, shall be kept on file with the City Clerk. The terms of the Security Instruments required by this Amendment are hereby incorporated in this Amendment by reference. City shall release the Faithful Performance Bond upon Owner's written request following acceptance by City of the Works of Improvement and Owner's delivery to City of the Warranty Bond for Works of Improvement. City shall release the Labor and Materials Bond upon Owner's written request and following acceptance by 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 Third of the California Civil Code. If lien claims have been timely filed, City shall hold the Labor and Materials Bond until (a) such claims have been resolved, (b) Owner has provided a statutory bond, or otherwise as required by applicable law. City Engineer shall release the Warranty Bond for Works of Improvement upon Owner's written request following the expiration of the warranty period, provided no claims are outstanding at that time regarding defective work. The release of the Landscape and Irrigation Warranty Bond held by the HOA will be determined by a separate agreement between the developer and the HOA, 2.1 Form of Security Instruments. All Security Instruments shall meet the following minimum requirements and otherwise shall be in a form 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; (11) Payments under the Security Instruments shall be required to be made (and, with respect to bonds, litigation shall be Amendment #1 and Reinstatement of SIA Tr16749 -7- 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 0\A/ner's completing the Works of Improvement, in accordance with Article 3 herein; (iv) The Security Instruments shall reference Owner's obligations under this Amendment, shall be irrevocable, and shall include as an additional obligation secured the responsibility to compensate City for all of the City's attorneys' fees and litigation expenses reasonably incurred enforcing its rights under the Security Instruments. 3. Time of Completion: All of the Works of Improvement shall be completed no later than January 16, 2017. The time for completion may be extended by the City Engineer, in writing, for good cause shown by the Owner. Owner 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 Article 19. In the event that Owner fails to complete the Works of Improvement within said period or any approved extension, the City may complete said work and shall be entitled to recover the full cost and expenses thereof from Owner, or his surety as herein provided. The City may require Owner, or his 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 Article 3 herein, Owner's time for completion of the Works of Improvement shall be extended for the period of any enforced delay caused due to circumstances beyond the control and without the fault of Owner, 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 Scope of Work required by City, and similar causes; provided, however, that the period of any enforced delay hereunder shall not include any period longer than thirty (30) days prior to City's receipt of a written notice from Owner or its contractor detailing the grounds for Owner'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), Owner shall Amendment #1 and Reinstatement of SIA -8- 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 have due to Owner's failure to timely perform its obligations hereunder. Owner 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. Owner agrees that if none of the Works of Improvement referenced herein have been made within the specified "Time of Completion" referenced in Article 3 above or within the time allowed herein, whichever is the later, and if City thereafter initiates proceedings to revert the Property to acreage, any improvements made by or on behalf of Owner after the date City initiates such action shall not be considered in determining City's authority to revert the Property to acreage. 4. Effective Date of Agreement: This Amendment shall be effective on the date that the Amendment is recorded by the County of Orange in the Official Records. 5. Utility Deposits - Statement: Prior to the commencement of any work to be performed under this Amendment within an area delineated on a Final Map, the Owner must file a written statement with the City Clerk and City Engineer, signed by the Owner, to the effect that Owner has made all deposits legally required by such 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: Owner shall, at Owner's expense, obtain all necessary permits and licenses for the construction of required improvements, give all necessary notices and pay all fees and taxes required by law. 7. Definitions and Ownership of Improvements: The term "improvements" means: 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, street -9- Amendment #1 and Reinstatement of SIA lights, and all other required facilities as shown in detail upon plans, profiles and specifications which have been prepared or are now in final preparation by engineers acting for Owner subject to approval by the City Engineer. No work on said improvements shall be commenced until plans and profiles therefore have been submitted to, approved and permitted by the City Engineer. All required public improvements constructed or installed pursuant to this Amendment shall become the sole exclusive property of the City, without payment therefore, upon acceptance of said improvements by the City Council. 8. Obligations of Owner: Notwithstanding, the fact that Owner's plans and specifications, completion of the work, 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 Owner of satisfactorily performing said work or the related obligations hereunder. The construction shall be done strictly in accordance with the plans and specifications including supplements and revisions prepared by Owner or its registered engineer, and as approved by the City as being consistent with the City Code and Standards. Owner warrants that its plans and specifications conform as a minimum to said codes and standards and that they are adequate to accomplish the work in a good workmanlike manner and in accordance with responsible construction practices. In addition to the foregoing, Owner shall satisfy all the conditions of approval set forth on the City approved tentative map for the Property. Owner 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 necessary or required to complete this work. 9. Intent of Plans and Specifications: The intent of the plans and specifications referenced above is to prescribe a complete work of improvement, which Owner shall perform, or cause to be performed in a manner acceptable to the City Engineer (or designee) and in full compliance with all codes and the terms of this Agreement. Owner 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 the contractor to complete its tasks, incidental appurtenances, materials, and the like. If any omissions are made of Amendment #1 and Reinstatement of SIA Tr16749 -10- information necessary to carry out the full intent and meaning of the plans and specifications, Owner 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 documents, reference shall be made to the City Engineer whose decision thereon shall be final. 10. Superintendence bv Owner: Owner shall give personal superintendence to the Works of Improvement, or have a competent foreman or superintendent, satisfactory to the City Engineer, on the work at all times during progress, with authority to act for Owner, In the event the Owner is not exercising satisfactory superintendence, the City Engineer may order suspension of all work within the subdivision until the deficiency is adequately corrected. 11. Repair and Replacements: Owner 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 approval of the City Engineer and affected property owner. 12. Inspection bv Citv: Owner shall at all times maintain proper facilities and provide safe access for inspection by City to all parts of the work and to the shops where the work is in preparation. The Owner shall pay the cost of inspections. 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 City shall not relieve Owner or the contractor of any obligations to fulfill this Amendment as herein provided," unsuitable materials or work may be rejected notwithstanding that such materials or work may have been previously overlooked or accepted. Amendmenl #1 and Reinslatemenl of SIA Tr16749 -11- 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 City is made. Final acceptance shall not constitute a waiver by 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. 13. Authority of the Citv Engineer: All required improvements shall be constructed under the inspection of and subject to approval of the City Engineer. Therefore, it is mutually agreed by the parties hereto that the City Engineer shall have the right to reject any or all of the work to be performed under this contract if such work does not conform with 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 shall be repaired or replaced, by the Owner, to the 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 Amendment by Owner and Owner's contractor. 14. Changes in the Work: The City Engineer, without invalidating this Amendment and without notification to any of the sureties referenced in Article 2 of this Amendment, 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 necessary or desirable by the City Engineer to accomplish the purposes of this Amendment 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 Amendment 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 Cwner or Cwner's contractor 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 -12- Amendment #1 and Reinstatement of SIA Owner or its contractor shall be binding on City unless approved in writing by the City Engineer. 15. No Warranty bv Citv: The plans and specifications and related documents for the Works of Improvement have been prepared by or on behalf of Owner or its consultants or contractors, and City makes no representation or warranty, expressed or implied, to Owner or to any other person regarding the adequacy of the plans or specifications or related documents. 16. Liability for Performance. Injury or Damage: Neither the City nor any of its officers or agents shall be liable to Owner or its contractors for any error or omission arising out of or in connection with any work to be performed under this contract. Additionally, the City shall not be liable to the Owner 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. Indemnifications and Release: Prior to the commencement of any work pursuant to this Agreement, Owner (if performing work itself) or Owner's contractors shall furnish to the City satisfactory evidence of an insurance policy written upon a form and by a company (which meets with the approval of the City) insuring the City, its officers, elected and appointed officers, agents, and employees as additional insureds against loss or liability which may arise during the work or which may result from any of the work herein required to be done, including all costs of defending any claim arising as result thereof. Minimum general liability insurance shall be not less than $2,000,000 per occurrence and not less than $4,000,000 aggregate. Said policy shall be in favor of Cwner 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 Owner hereby releases and agrees to defend (with legal counsel selected by Cwner 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. Amendment #1 and Reinstatement of SIA Tr16749 -13- damage and liability, howsoever the same may be caused and whensoever the same may appear, resulting directly or indirectly from the performance or nonperformance of any or all work to be done in and upon the subject property and the premises adjacent thereto pursuant to this Agreement, and also from any and all injuries to and deaths of persons and injuries to property or other interests and all claims, demands, costs, loss, damage, and liability, howsoever the same may be caused and whensoever the same may appear, either directly or indirectly made or suffered by the Owner, the Owner's agents, employees, and subcontractors, while engaged in the performance of said work. 18. Liability of Owner: The Owner agrees that the use for any purpose and by any person of any and all of the streets, easements and improvements herein specified shall be at the sole and exclusive risk of the Owner 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 Owner'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, Cwner's Expenses: The Cwner shall pay these additional expenses: a. The Owner 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 determine the nature and design of appropriate improvements. The Cwner 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. 0. 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 Owner be entitled to additional inspections or final inspection and acceptance of any of the Works of Improvement until all City fees and charges have -14- Amendment #1 and Reinstatement of SIA Tr16749 been fully paid, including, without limitation, charges for applicable penalties and additional required inspections. Owner 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 Article 3. Said actual costs include; inspection of Works of Improvement, engineer design review, plan check and project development process. Owner agrees to pay the cost of said City services within forty-five (45) days of invoice date, or as determined by the City Engineer. 20. Relationship of Contractors: It is hereby mutually covenanted and agreed by the parties hereto that Owner's contractors are not agents of the City, and that the contractors' relations to City, if any, are those of independent contractors. 21. Certification of Satisfactory Completion: Upon the satisfactory completion of the Works of Improvement by the Owner, 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 (1) year after City Council acceptance of the improvement work performed under this Amendment, any of the improvements or work done under this Amendment fails to fulfill any of the requirements of this Amendment, or the specifications referred to herein, Owner 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 Owner fail to act promptly or In accordance with this requirement, or should the exigencies of the case require repairs or replacements to be made before Owner can be notified, City may, at its option, make the necessary repairs or replacements or perform the necessary work and Owner shall pay to City the actual cost of such repairs plus an amount equivalent to the current general City overhead costs. Amendment #1 and Reinstatement of SIA Tr16749 -15- 23. Warranty: Without limiting the foregoing, Owner warrants and guarantees: materials used and workmanship performed on said work 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 all required landscaping in a vigorous and thriving condition for a period of twelve (12) months after completion and written acceptance thereof by the Director of Public Works and Utilities Department and by the HOA. Only the warranty security for the landscape improvement shall be posted with the HOA. All other security instruments shall be submitted to the City in accordance with Article 2. The warranty provided herein shall not be in lieu of, but shall be in addition to, any warranties or other obligations otherwise imposed by law. 24. Default: 24.1 Remedies Not Exclusive: In any case where this Amendment provides a specific remedy to City for a default by Owner hereunder, such remedy shall be in addition to, and not exclusive of, City's right to pursue any other administrative, legal, or equitable remedy to which it may be entitled. 24.2 Citv Right to Perform Work: In addition to whatever other rights or remedies it may have for Owner's default hereunder, in the event Owner shall fail to timely perform any work required to be performed under this Amendment and such failure shall continue for a period of thirty (30) days after receipt of written notice of default from City, or thereafter Owner shall fail to diligently pursue the cure of any such default to completion. 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 Owner and the surety company, or both, the full cost and expense thereby incurred by City. 24.3 Attorney's Fees and Costs: In the event of any litigation arising out of Owner's performance of its obligations under this Amendment 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 -16- Amendment #1 and Reinstatement o1 SIA Tr16749 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 Owner shall file in the Official Records 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 Owner shall submit to the City Engineer for review and approval, one Mylar (4 mils) set of "record" drawings as well as digital copies of all improvement plans in accordance 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. Assignment: This Amendment shall not be assignable by Owner without written consent of City. Amendment #1 and Reinstatement of SIA Tr16749 -17- IN WITNESS WHEREOF, ^tbis Amendment has been duly executed by the Owner herein named on the day of Hnrv V , 20 jSTthe name and corporate seal of each corporate party being hereto affixed and these presents duly signed by its undersigned representative(s) pursuant to authority of its governing body. OWNER CITY OF SAN JUAN CAPISTRANO LV PACIFIC POINT LLC A Delaware Limited Liability Company Name: Jonas Stiklorius Authorized Signatory Bv: faut Derek Reeve, Mayor Its: (Attach Notary Acknowledgement) Attachment: Exhibit A APPROVED AS TO FORM: Hans Van Ligten, City Attorney Amendment #1 and Reinstatement of SIA Tr16749 -18- PUBLIC AGENCY FORM OF ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document, to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. City of San Juan Capistrano ) (Gov't Code 40814 i& Civil Code 1181) On April 23, 2015. be fore me, Maria Morris, Cit\ Clerk, personal ly appeared Derek Rccvc, Mavor and Hans Van Ligten, Citv Attorney, who proved to me on the basis of satisfactory evidence to the be pcrson(s) whose namc(s) is/are subscribed to the within instrument and acknowledged to me that he/shc/thcy executed the same in his/her/their authorized capacity (ies), and that by his/her/there signature on the instrument the pcrson(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OP PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. (SEAL) A ^ \ State of California County of Orange ) ss. OPTIONAL Capacity Claimed by Signers Description of Attached Document Title or Type of Document Mayor City Attorney Amendment U\d Reinstatement to Subdivision Improvement Agreement (Tentative Tract Map 16749) Title LV Pacillc Point LLC Signer is Representing City of San Juan Capistrano OWNER ACKNOWLEDGMENT STATE OF NEW YORK ) ) ss COUNTY OF NEW YORK ) On the-' day of pp^U^ in the year 2015 before me, the undersigned, a Notary Public in and for said State, personally appeared cJg)/>y9<, <^7^it^^gV7.^ personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument. (Notarial Seal) Notary Public LISA A. PHELAN Notary Public State of New York Qualities NeiA vork County Reg Nu. 01PH6292618 Commission Expires November 4,2017 Amendment #1 and Reinstatement of SIA Tr16749 -19- Exhibit A WORKS OF IMPROVEMENT CERTIFICATION OF PARTIAL COMPLETION OF SUBDIVISION IMPROVEMENTS Final Tract Map 16749 I hereby certify that the following improvements in Pacifica San Juan Final Tract Map ("FTM") 16749 have been completed, to wit: Schedule of Improvements Total Amount Percent Complete Remaining Amount or Bond Amount Street Improvements $0 NA $0 Water improvements $0 NA $0 Sewer Improvements $0 NA $0 Drainage Improvements $0 NA $0 Landscape and irrigation $342,692 75% $85,673 Monumentation $14,500 0% $14,500 Off-site Public improvements (1) NA (1) Total Works of Improvement $357,192 72% $100,173 (1) With Improvement and Reimbursemen t Agreement Street Improvements The Performance Bond is for the amount of Zero Dollars 0 ). (100 % of Column 4) The Laborers and Materialmens Bond Is for the amount of Zero Dollars {$ 0 ). (100 % of Column 4) Water Improvements The Performance Bond is for the amount of Zero Dollars _{$ 0 ). (100 % of Column 4) The Laborers and Materialmens Bond is for the amount of Zero Dollars ($ 0 ). (100 % of Column 4) Sewer Improvements The Performance Bond is for the amount of Zero Dollars 1$ 0 ). (100 % of Column 4) Subdivision Improvements Agreement Pacifica San Juan, FTM 16749 1 of 3 Exhibit A The Laborers and Materialmens Bond is for the amount of X$ 0 ). (100 % of Column 4) Zero Dollars Drainage Improvements The Performance Bond is for the amount of Zero Dollars ^$ 0 ). (100 % of Column 4) The Laborers and Materialmens Bond is for the amount of Zero Dollars ^$ 0 ). (100 % of Column 4) Landscape and Irrigation The Performance Bond is for the amount of Eighty Five Thousand Six Hundred Seventy Three Dollars _($ $85,673 ). (100 % of Column 4) The Laborers and Materialmens Bond is for the amount of Eighty Five Thousand Six Hundred Seventy Three Dollars _[$ $85,673 ). (100 % of Column 4) Monumentation The Performance Bond is for the amount of Fourteen Thousand Five Hundred Dollars $14,500 )• (100 % of Column 4) The Laborers and Materialmens Bond is for the amount of Fourteen Thousand Five Hundred Dollars _[$ $14,500 ), (100 % of Column 4) Off-site public Improvements The Performance Bond is for the amount of Zero Dollars {$ 0 ). (100 % of Column 4) The Laborers and Materialmens Bond is for the amount of Zero Dollars ($ 0 )- (100 % of Column 4) Subdivision Improvements Agreement Pacifica San Juan, FTM 16749 2 of 3 Exhibit A SUBMITTED BY ENGINEER OF RECORD I estimate the total cost of completing the remainder of the in-Tract FTM 16749 improvements, agreed to be performed by the Owner and Subdivider to be One Hundred Thousand One Hundred Sev DATED: ACCEPTED BY CITY DATED: 41 Dollars ($100,173) A^ Doug Staley (RCE No. 38796) President Hunsaker & /Associates Irvine, inc. 3 HugtlT Irvinl CA 92618 Assi|tanf,PbbHc Works Director Subdivision Improvements Agreement Pacifica San Juan, FTM 16749 3 of 3