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15-0421 PACIFICA Amd 2 Reinstatement & Reimbursement - NOT RECORDED RECORDING REQUESTED BY: 32400 Paseo Adelanto San Juan Capistrano, CA 92675 AND WHEN RECORDED, MAIL TO: Maria M. Morris, CMC, City Clerk City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Exempt from Recording Fees: Gov Code 27383 8 6103 City of San Juan Capistrano This Space for Recorder's Use Only AMENDMENT#2 AND REINSTATEMENT TO THE IMPROVEMENT AND REIMBURSEMENT AGREEMENT THIS AMENDMENT #2 AND REINSTATEMENT TO THE 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) ('Amendment') dated the 21 day ofAwa 20� is entered into by and between LV PACIFIC POINT LLC, a Delaware Limited Liability Company, whose mailing address is 3121 Michelson Drive, Suite 200, Irvine, CA 92612, the developer of property known as Pacifica San Juan Subdivision, specifically referred to under Vested Tentative Tract 14196 and 15609 in the City of San Juan Capistrano, of the County of Orange, in the State of California hereinafter referred to as ("Developer') and the City of San Juan Capistrano, hereinafter referred to as ("City"). RECITALS WHEREAS, On June 16, 1992, the City granted approvals for Tentative Tract 14196 (Resolution Nos. 92-6-164) which would be divided into multiple final maps; and, WHEREAS, Conditions of Approval required Developer to enter into an Agreement with the City to provide for the construction of certain off-site traffic improvements; and, WHEREAS, Said Agreement, entitled "IMPROVEMENT AND REIMBURSEMENT AGREMENT (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) ("Original Agreement") which is also described as Vested Tentative Tracts 14196 and 15609, was entered into by SJD PARTNERS, LTD., a California limited partnership ("Former Developer") and approved by the City Council on July 20, 1999 and recorded in the Official Records of Orange County, California ("Official Records") on August 9, 1999, as Instrument No. 19990581258; and, WHEREAS, City requires that those certain improvements, as outlined hereafter, be constructed concurrently with Developer's development; and, WHEREAS, Said Original Agreement, was amended and approved by the City Council on November 15, 2005 and recorded in the Official Records on November 28, 2005, as Instrument No. 2005000945594; and, WHEREAS, Developer is the successor-in-interest to Former Developer and the Owner of that certain parcel of land situated in the City of San Juan Capistrano, Orange County, generally described as Vested Tentative Tract Maps 14196 and 15609; and, WHEREAS, Developer has assumed all of Former Developer's rights and responsibilities pursuant to the Original Agreement; and, WHEREAS, City and Developer propose to restate and amend the Original Agreement as set forth herein. All terms not otherwise defined or amended herein shall have the meaning ascribed in the Original Agreement; and, WHEREAS, Developer has requested, and City has agreed, to replace the existing Performance and Material and Labor Bonds ("Bonds") with new Bonds for 100% of the cost of the remaining off-site improvements as defined within this Amendment; and, WHEREAS, the Amendment shall continue to require Developer to design and construct the remaining off-site improvements concurrently with his development, as conditioned, and would provide the developer the needed additional time to process the permit approvals for the remaining off-site improvements as listed within Attachment "A" of the Original Agreement, through Caltrans and the City. NOW, THEREFORE, in consideration of the premises hereinafter set forth, CITY and Developer mutually agree as follows: Amendment#2 and Reinstatement To The Improvement and Reimbursement Agreement Page 12 AGREEMENT Section 1. Scope of Improvements/Pro-rata Share Obligations. The Developer shall design and construct and be initially responsible for all the costs of the remaining off-site improvements listed within Table 1 herein and as indicated in Attachment A, Section 1, and as depicted in Exhibit "A" to their ultimate standard configurations in accordance with the City standard specifications 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, if applicable, shall be obtained by the Developer, with City's assistance, at no initial cost to the City. The Developer shall provide performance bonds/securities as well as labor and materials bonds/securities for 100 percent of each estimated remaining improvement costs as depicted within Exhibit "A" as prepared by a Registered Civil Engineer and approved by the City Engineer, on standard City forms as approved by the City Attorney. Any deferral in the timing of this condition, due to unforeseen delays caused by outside regulatory agencies, shall be subject to review and approval by the City Engineer. The Developers pro-rata share obligations for said improvements shall be as set forth within Table 1 which was based on the Developer's project's proportionate traffic generation at each improvement location per the traffic study prepared for the project's Environmental Impact Report. TABLE 1 —DEVELOPER OFF-SITE IMPROVEMENT OBLIGATIONS 3 Completion Developer's Developer's Date(4) Estimated Share Cost:Value of Improvement Cost(1,2) Improvement 1. Camino Las Ramblas 0.Via California: Install a traffic signal and construct a Prior to 1 st separate southbound right-tum Residential lane C of O 232,125 94 218,198 2. Valle Road North— Valle Road Prior to 151st from San Juan Creek Road to Residential ,La Novia Avenue: Widen to a Building two-lane divided roadway Permit 1,153,973 38 438,509 . Valle Road South—Valle Road from La Novia Avenue to Prior to 1 st Forster Ranch Road:Widen to Residential 1,911,572 72 1,376,332 commuter roadway C of O Amendment#2 and Reinstatement To The Improvement and Reimbursement Agreement Page 13 % Developer's Completion Developer's Cost:Value of Date(4) Estimated Share Improvement Improvement Cost(1,2) (5) 4. La Novia Avenue 0 Valle Prior to 151 st Roadll-5 Northbound Ramps: Residential Realign La Novia Avenue and Building the 1-5 northbound ramps and Permit construct a one lane circular round-a-bout 1,682,000 37 622,340 Prior to 151 st 5. Camino Capistrano 0 San Residential Juan Creek Road:Add Building additional northbound right- Permit tum lane 197,038 40 78,815 Prior to 151 st Residential 5. Camino Capistrano fcD_ Building Southbound 1-5 Ramps: Permit Improve intersection and modify signals 92,723 42 38,944 7. Valle Road 8 San Juan Creek Priorto ?51st Road: Residential Construct a northbound left- Building turn lane. Permit 12,200 8.4 1,025 Less Right-of-Way Acquisition costs associated with completed off-site improvements (500,000) 4,781,631 2,774,163 Total Notes 1 - Cost Estimates for improvements 1, 2, 3, 5, and 6 were based on 2002 costs within the CCFP Suncal Development document dated September 30, 2002. 2 - Cost Estimate for improvement 4 is based on a conceptual plan cost estimate for the proposed round-a-bout dated April 22, 2014. 3 - Exhibit°A" depicts the remaining costs of the Off-Site circulation improvements with associated percent completion. 4—See Attachment A for full completion compliance criteria. 5—The total reimbursement amount to the Developer for the listed improvements within Table 1 is $2,507,468. Amendment#2 and Reinstatement To The Improvement and Reimbursement Agreement Page 14 Pursuant to the Conditions of Approval Resolution No. 03-09-16-06, item #4.4, the Developer, upon written request at any time following the execution of this Amendment, can apply the pro-rata share costs associated with the improvements listed in Table 1 as a credit against the Capistrano Circulation Fee Program ("CCFP") Fees due from the Developer at the time of the building permit issuance. The total Developer's cost as depicted within Table 1 of $2,774,163 shall be applied as a credit against the City's current adopted fees due under the CCFP effective as of July 1, 2012, with no further adjustments to the total cost in Table 1 allowed unless approved by the City. As of the date of this Amendment, the total CCFP fees paid to the City from the Developer is $251,158. Therefore, based on the total residential units vested within VTTM 14196 and VTTM 15609 of 416 and the total cost of the improvements listed in Table 1 applied as CCFP fee credits, there could be a potential CCFP fee credit balance owed the Developer. If this credit balance is realized, the Developer may request in writing to apply this towards other CCFP fees due for other residential or non-residential development within the Vested Tentative Tract Maps 14196 and 15609 or request in writing a refund of the CCFP fee credit balance from the City. The City will refund said CCFP fee balance 30 days upon receipt of the written request from the Developer. Section 2. Fair-Share Circulation Improvement Participation. The Developer shall pay its "fair share" of the improvement costs as identified within Table 2 herein and as indicated in Attachment B, Section II, in accordance with the schedule therein, and costs as depicted within Exhibit "B". The fair-share financial contribution amount for each such improvement is based on the project's proportionate traffic generation at each improvement location per the traffic study prepared for the project Environmental Impact Report. This financial participation shall be in addition to paying the CCFP fees. The costs shall include all right-of-way acquisition, design, and construction costs associated with the fair share circulation improvements. The associated costs and status of "Fair Share" payment for the circulation improvements is depicted within Exhibit"B." TABLE 2 — DEVELOPER "FAIR SHARE" CIRCULATION IMPROVEMENT PARTICIPATION 2 Completion % Developer's Date Estimated Developers "Fair Share" Improvement Cost(1) Share Cost Prior to 1 st 1. Existing La Novia.Valle Road Residential to 2500 feet east;existing La Building Novia improvements Permit $2,427,000 15 $364,050 Prior to 151st 2. La Novia Avenue from Valle Residential Road 2500 easterly: Widen to Building secondary standards Permit $1,500,000 1 15 $225,000 Amendment#2 and Reinstatement To The Improvement and Reimbursement Agreement Page 15 Completion Developer's Developer's Date Estimated Share "Fair Share" Improvement Cost(1) Cost Prior to 151 st 3. Intersection of San Juan Residential Creek Road and Valle Road: Building signals and intersection Permit improvements $280,000 38 $106,400 Prior to 1 st 4. Ortega Highway&1-5 Residential Southbound Ramus:additional Building southbound right-tum lane and Permit re-stripe existing center lane to left/thru lane 1,054,507 7.3 $76,979 Prior to 1 st Residential 5. Ortega Highway& 1-5 Building Northbound Rams: Permit westbound free right turn lane 325,500 0.8 $2,604 Total 5,587,007 775,033 Notes 1 - Cost Estimates for improvements were based on 2002 costs within the CCFP Suncal Development document dated September 30, 2002 and Original Agreement. 2 - Exhibit"B" depicts the remaining costs of the Off-Site circulation improvements with associated percent completion. Section 3. Design Plans. Developer designed plans shall be submitted to the City Engineer for his review and approval prior to construction. Section 3A. Performance and Labor and Material Bonds Security. Developer shall, at all times, beginning with the execution of this Amendment, guarantee Developer'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 said remaining off-site improvements in the amount of 100% of the estimated cost of the improvements as depicted on Exhibit"A"; and, Amendment#2 and Reinstatement To The Improvement and Reimbursement Agreement Page 16 (ii) A Labor and Materials Bond to secure payment to any contractor, subcontractor, persons renting equipment or furnishing labor or materials for the remaining off-site improvements required to be constructed or installed pursuant to this Amendment in the additional amount of 100% of the estimated cost of the improvements as depicted on Exhibit"A"; and, (iii) In order to guarantee and warranty the remaining off-site improvements and in addition to the security instruments referenced in this Article 3(A), Developer shall provide to City the following Security Instruments: Prior to the City's final acceptance of the remaining off-site improvements and recordation of a Notice of Completion, Developer shall provide to City a Warranty Bond for the remaining off-site Improvements warranting the accepted Improvements 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 the remaining off-site Improvements shall be equal to twenty-five percent(25%) of the estimated costs set forth in Exhibit "A", or a suitable amount determined by the City Engineer. All Security Instruments required by this Amendment 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 Developer's written request following acceptance by City of the remaining off-site Improvements and Developer's delivery to City of the Warranty Bond for remaining off-site Improvements. City shall release the Labor and Materials Bond upon Developer's written request and following acceptance by City of the remaining off-site Improvements 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 the Third Division 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) Developer has provided a statutory bond, or otherwise as required by applicable law. City Engineer shall release the Warranty Bond for the remaining off-site Improvements upon Developer's written request following the expiration of the warranty period, provided no claims are outstanding at that time regarding defective work. 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 Amendment#2 and Reinstatement To The Improvement and Reimbursement Agreement Page 17 surety shall have a minimum rating of AA, as rated by Moody's or Standard & Poor's; and, (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; and, (iii) Each of the Security Instruments shall have a minimum term of one (1) year after the Notice of Completion is filed by the City for the Developer's completion of the remaining off-site Improvements; and, (iv) The Security Instruments shall reference Developer'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. Section 4. Reimbursement to Developer. Pursuant to the development approvals given to Developer, Developer will be reimbursed a portion of the total cost of the off- site circulation improvements. Developer shall be reimbursed for the costs of the total off-site circulation improvements as depicted within Table 1 of this Amendment over a period of fifteen (15) years from the completion of the last off-site circulation improvement in Section 1 as provided within this Amendment. Timing of reimbursement payments will be according to actual proration contributions based on traffic generation from other developers in the area who develop their property within the time period specified in Section 5 of this Amendment. Section 5. Terre of Agreement. This Amendment shall run for a period of fifteen (15) years from the completion of the last improvement in Section1. An extension of five (5) years may be granted by the City upon written request of the Developer. Section 6. Time Frame for Repayment to Developer. The City shall cause such other Developers to make their pro-rata contribution upon the earlier of issuance of a building permit or approval of a Final Map. Section 7. Liability/Indemnification/Insurance. Neither the City nor any of its officers or agents shall be liable to Developer or its contractors for any error or omission arising out of or in connection with any work to be performed under this Amendment. Additionally, the City shall not be liable to the Developer 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 Amendment, or any part thereof. Developer agrees to maintain liability insurance in the following amounts: Amendment#2 and Reinstatement To The Improvement and Reimbursement Agreement Page 18 I. Prior to the commencement of any work pursuant to this Amendment, Developer (if performing work itself) or Developer'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 Developer 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 Developer hereby releases and agrees to defend (with legal counsel selected by Developer 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 whenever 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 Amendment, 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 whenever the same may appear, either directly or indirectly made or suffered by the Developer, the Developers' agents, employees, and subcontractors, while engaged in the performance of said work. II. Worker's Compensation. If Developer employs employees or subcontractors to perform services under this Agreement, Developer shall obtain and maintain, during the life of this Agreement, Worker's Compensation Employer's Liability Insurance in the statutory amount as required by State law. These above stated policies shall not terminate nor shall they be canceled nor the coverage reduced until after 90 days'written notice is given to the City. Developer shall provide an endorsement to City establishing that City has been legally added as an additional insured to the liability policy required under this Agreement. Amendment#2 and Reinstatement To The Improvement and Reimbursement Agreement Page 19 Section 8. Force Majeure. None of the parties hereto shall be deemed to be in default if performance of the obligations required by this Amendment is delayed or becomes impossible because of any act of God, earthquake, fire, strike, sickness, accident, civil commotion, epidemic, act of government, its agencies or officers, or any legitimate cause beyond the control of the parties. Section 9. Notices. All notices, requests, demands, consents and other communications under this Agreement shall be in writing, including telex and facsimile transmission and shall be deemed to have been duly given on the date of service if served personally by telex or facsimile transmission or 48 hours after mailing if mailed by first class mail, registered, or certified, postage prepaid, return receipt requested, and properly addressed as follows: TO: LV PACIFIC POINT LLC Attention: Eric Hoffman 3121 Michelson Drive, Suite 200 Irvine, CA 92612 TO: CITY OF SAN JUAN CAPISTRANO Attention: City Clerk 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Section 10. Agreement Runs with the Land. This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective representatives, assigns and successors in interest. Section 11. Entire Agreement. This Amendment contains the entire agreement between the parties hereto and supersedes any prior or concurrent written or oral agreement between said parties concerning the subject matter contained herein. There are no representations, agreements, arrangements or undertakings, oral or written, between or among the parties hereto relating to the subject matter contained in this Amendment which have not been fully expressed herein. Amendment#2 and Reinstatement To The Improvement and Reimbursement Agreement Page 110 IN WITNESS WHEREOF, this Amendment has been duly executed by the Developer herein named on the_ �)k _day of 1yri 1 , 201�r , 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. DATE 7/�� DEVELOPER By: LV PACIFIC POINT LLC a Delaware limited liability company By: Jonas Stiklorius Its: A..the;iz4d Sign-too DATE CITY OF SAN JUAN C�A�^PISTRANO By: x 6 `` A st APPROVED AS TO F RM CI Y CITY ATTORNEY (Attach Notary Acknowledgement) Attachments: Exhibit"A" and Exhibit"B" Attachment"A" and Attachment"B" Amendment N2 and Reinstatement To The Improvement and Reimbursement Agreement Page II 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. State of California ) County of Orange ) ss. City of San Juan Capistrano ) (Gov't Code 40814& Civil Code 1181) On May 5, 2015, before me, Maria Morris, City Clerk, personally appeared Derek Reeve, Mayor and Hans Van Ligten. City Attorney, 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 lies), 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) W1 S y hand and official seal. Maria s, vty C erk OPTIONAL Capacity Claimed by Signers Description of Attached Document Title or Type of Document Mayor City Attorney Amendment H?and Reinstatement to the Improvement and Reimbursement Agreement Title LV Pacific Point LLC Signer is Representing City of San Juan Capistrano SUBDIVIDER ACKNOWLEDGMENT STATE OF NEW YORK ) ) SS. COUNTY OF NEW YORK ) On the/`�day of&, / in the year 2015 before me, the undersigned, a Notary Public in and for said State, personally appearedNdniac 5bk-Jorleg, 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) Q-::4.4 g2 — 'LIC -_ Notary Public LISA A.PHELAN Notary Public.State of New York Oualiflod in New York County Reg No.01 PH6292618 Commission Expires November 4,2017 Amendment#2 and Reinstatement To The Improvement and Reimbursement Agreement Page 112 ATTACHMENT A SECTION 1 - SCOPE OF IMPROVEMENTS/PRO-RATA SHARE OBLIGATIONS IMPROVEMENTS TO BE DESIGNED AND CONTRUCTED BY DEVELOPER (CONDITION OF APPROVAL CITY RESOLUTIONS 92-6-96-4 AND 03-09-96-06) 1. Camino Las Ramblas 0- Via California: Intersection improvements to design and construct a separate southbound right-turn lane and install a traffic signal, with associated grading and landscaping. To be constructed by the Developer prior to issuance of the 1st residential Certificate of Occupancy. 2. Valle Road North —Valle Road from San Juan Creek Road to La Novia Avenue: Widen to a two-lane divided roadway, with associated grading and landscaping. To be constructed by the Developer prior to the completion and City acceptance of the proposed Avenida California/Vista Marina connection between Via California and Valle Road or prior to the issuance of the,151 st building permit within Vesting Tentative Tract Maps 14196 and 15609, whichever occurs first. 3. Valle Road South—Valle Road from La Novia Avenue to Forster Ranch Road:Widen to a commuter standard road, with associated grading, retaining walls, and landscaping. To be constructed by the Developer prior to the issuance of the 15'Certificate of Occupancy in the North R&D site or prior to completion and City acceptance of the proposed connection of Vista Marina to Valle Road,whichever occurs first. 4. La Novia Avenue Ca) Valle Road/1-5 Northbound Ramos: Intersection improvements to realign La Novia Avenue and the 1-5 northbound ramps and construct a one lane circular round-a-bout with associated grading, retaining walls, and landscaping. To be constructed by the Developer prior to the completion and City acceptance of the proposed Avenida California/Vista Marina connection between Via California and Valle Road or prior to the issuance of the 1518t Residential Building Permit within Vested Tentative Tract Maps 14196 or 15609,whichever occurs first. 5. Camino Capistrano 0 San Juan Creek Road: Add additional northbound right-tum lane subject to Caltrans and in coordination with the City's Capital Improvement Program Project("CIP" 07117). To be constructed concurrently and in coordination with the City's CIP Project. 6. Camino Capistrano Ca) Southbound 1-5 Ramos: Improve intersection and modify signals. To be constructed and completed•by Developer prior to the completion and City acceptance of the proposed Avenida California/Vista Marina connection between Via California and Valle Road. 7. Valle Road & San Juan Creek Road: Construct a northbound left-tum lane. To be constructed by the Developer prior to the issuance of the 1 at Certificate of Occupancy in the North R&D site or prior to completion and City acceptance of the proposed connection of Vista Marina to Valle Road,whichever occurs first. Amendment#2 and Reinstatement To The Improvement and Reimbursement Agreement Exhibit A OFFSITE CIRCULATION IMPROVEMENT CERTIFICATION OF PARTIAL COMPLETION OF OFF-SITE IMPROVEMENTS Amendment#2 and Reinstatement of Improvement and Reimbursement Agreement I hereby certify that the following off-site circulation improvements for Pacifica San Juan Development as required by the Conditions of Approval, Improvement and Reimbursement Agreement dated July 20, 1999, the Amendment to the Improvement and Reimbursement Agreement dated November 15, 2005, and this Amendment have been completed to wit: Schedule of Improvements Total Remaining Estimated Cost Amount or Bond Percent Complete Amount Table 1 Off-site Circulation Improvements 1. Camino Las Rambles @ Via California: Install a traffic signal and construct a separate southbound right-turn lane $ 232,125 100% $ 2. Valle Road North —Valle Road from San Juan Creek Road to La Novia Avenue: Widen to a two- lane divided roadway $ 1,153,973 40% $ 692,000 3. Valle Road South—Valle Road from La Novia Avenue to Forster Ranch Road: Widen to a commuter roadway $ 1,911,572 100% $ 4. La Novia Avenue @ Valle Road/1-5 Northbound Ramps: Realign La Novia Avenue and the 1-5 northbound ramps and construct a one lane circular round-a-bout $ 1,682,000 0% $ 1,682,000 5. Camino Capistrano @ San Juan Creek Road: Add additional northbound right-tum lane ° $ 197,038 0% $ 197,000 6. Camino Capistrano @ Southbound 1-5 Ramps: Improve intersection and modify signals $ 92,723 100% $ 7. Valle Road & San Juan Creek Road: Construct a northbound left-tum lane $ 12,200 100% $ Less Right-of-Way Acquisition costs associated with completed off-site improvements $ 500 000 100% $ Total $ 4,781,631 689/6 $ 2,571,000 ` Bond Amounts rounded to the nearest$1,000. Amendment#2 and Reinstatement to the Improvement and Reimbursement Agreement Pacifica San Juan of] e,n,tA n 1. Signal @ Las Ramblas &Via California The Performance Bond is for the amount of Zero Dollars ($ so ). (100% of Column 4) The Laborers and Materialmens Bond is for the amount of Zero Dollars ($ so ). (100 % of Column 4) 2. Valle Road North-Valle Road from San Juan Creek Road to La Novia Avenue The Performance Bond is for the amount of Six Hundred Ninety-two Thousand Dollars ($ 692,000. ). (100 % of Column 4) The Laborers and Materialmens Bond is for the amount of Six Hundred Ninety-two Thousand Dollars ($ 692,000 ). (100 % of Column 4) 3. Valle Road South—Valle Road from La Novia Avenue to Forster Ranch Road The Performance Bond is for the amount of Zero Dollars ($ $0 ). (100% of Column 4) The Laborers and Materialmens Bond is for the amount of Zero Dollars ($ so ). (100% of Column 4) 4. La Novia Avenue @ Valle Roadl1-5 Northbound Ramps (Round-a-Bout) The Performance Bond is for the amount of One Million Six Hundred Eight Two Thousand Dollars ($ 1,682,000 ). (100 % of Column 4) The Laborers and Materialmens Bond is for the amount of One Million Six Hundred Eighty Two Thousand Dollars ($ 1,682,000 ). (100 % of Column 4) 5. Camino Capistrano @ San Juan Creek Road, Add Northbound Right Turn Lane The Performance Bond is for the amount of One Hundred Ninety Seven Thousand Dollars ($ 197,000 ). (100 % of Column 4) The Laborers and Materialmens Bond is for the amount of One Hundred Ninety Seven Thousand Dollars ($ 197,000 ). (100 % of Column 4) 6. Camino Capistrano @ Southbound 1-5 Ramps The Performance Bond is for the amount of Zero Dollars ($ so.). (100 % of Column 4) Amendment#2 and Reinstatement to the Improvement and Reimbursement Agreement Pacifica San Juan 2 of 3 Exhibit A The Laborers and Materialmens Bond is for the amount of Zero Dollars ($ so ). (100 % of Column 4) 7. Valle Road &san Juan Creek Road The Performance Bond is for the amount of Zero Dollars ($ $0 ). (100 % of Column 4) The Laborers and Materialmens Bond is for the amount of Zero Dollars ($ so ). (100 % of Column 4) SUBMITTED BY ENGINEER OF RECORD I estimate the total cost of completing the remainder of the Off-site VTTM 14196 and VTTM 15609, improvements agreed to be performed by the Owner and Developer to be Two Million Five Hundred Seventy-one Thousand Dollars ($ $2,671,000 ). (100 e S . 0 Am y DATED: ��/5 No. 33 < X D N gyp'3/3 �¢ Doug Staley RCE No. 3 96) '9l C 1 V t President QFC TeA Inc. ACCEPTED BY CITY 618 DATED: lur 111 e o an, P.E. 2g st nt ublic Works Director Amendment p2 and Reinstatement to the Improvement and Reimbursement Agreement Pacifica San Juan 3 of 3 Exhibit A 1.i j t �CV., U47 Ali, . _ � •n .- �S.^.ry ,moi ii t .._ .i•j+taf j� ATTACHMENT B SECTION 2- FAIR-SHARE CIRCULATION IMPROVEMENT PARTICIPATION IMPROVEMENTS REQUIRING DEVELOPER TO PAY A "FAIR SHARE" OF COST BASED ON DEVELOPERS PROPORTIONATE TRAFFIC GENERATION TO EACH PROJECT (CONDITION OF APPROVAL CITY RESOLUTIONS 92-6-16-4 AND 03-09-16-06) 1. Existing La Novia, Valle Road to 2500 feet east: Existing La Novia improvements "Fair Share" to be paid by the Developer prior to issuance of the I" residential Building Permit. 2. La Novia Avenue from Valle Road 2500 eastedv: Widen to secondary standards. "Fair Share" to be paid by the Developer prior to the issuance of the 151" building permit within Vesting Tentative Tract Maps 14196 and 15609. 3. Intersection of San Juan Creek Road and Valle Road. Signals and intersection improvements. "Fair Share" to be paid by the Developer prior to the issuance of the 151st building permit within Vesting Tentative Tract Maps 14196 and 15609. 4. Ortega Highway & 1-5 Southbound Ramos: Additional southbound right-tum lane and re-stripe existing center lane to left/thru lane. "Fair Share" to be paid by the Developer prior to the issuance of the I"building permit within Vesting Tentative Tract Maps 14196 and 15609. 5. Orte_aa Highway & 1-5 Northbound Ramps: Westbound free right turn lane. "Fair Share" to be paid by the Developer prior to the issuance of the 1st building permit within Vesting Tentative Tract Maps 14196 and 15609. Amendment#2 and Reinstatement To The Improvement and Reimbursement Agreement SUBDIVISION FAITHFUL PERFORMANCE BOND (GOVERNMENT CODE 66499.2) Bond No: SUR20000348 KNOW ALL MEN BY THESE PRESENTS, that LV Pacific Point LLC (hereafter designated as "Principal"), and Ironshore Indemnity Inc., as Surety (hereinafter called "Surety") agree to install and complete certain designated public improvements as conditioned by City Council Resolution No's.92-6-16-4 and 03-09-16- 06. WHEREAS, said Principal is required to furnish a bond pursuant to Municipal Code Section 9-5.101 and 9-5.109 et seq., for the faithful performance to guarantee certain work, more particularly described as follows: Off-Site Circ. subdivision improvements within Tract NIA as defined within Amendment #1 and Reinstatement of the Subdivision Improvement Agreement for Tract NIA. NOW, THEREFORE, we, the Principal and Surety are held firmly bound unto the City of San Juan Capistrano, (hereafter called "Obligee") in the penal sum of Two Million Five Hundred Seventy One Thousand and 001100 Dollars, ($2,571,000) lawful money of the United States, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, successors, executors and administrators,jointly and severally, firmly by these presents. NOW, THEREFORE, the condition of this obligation is such that, if Principal shall promptly and faithfully perform said improvement obligations within the fully executed and recorded subdivision improvement agreement, then the obligation shall be null and void; otherwise it shall remain in full force and effect. Page 1 of 3 BE IT FURTHER RESOLVED: 1. As a part of the obligation secured hereby, and in addition to the face amount specified, there shall be included costs and reasonable expenses and fees, including reasonable attorney's fees, incurred by City in successfully enforcing such obligation, all to be taxed as costs and included in any judgment rendered. 2. Said Principal, for value received, hereby stipulates and agrees that no change, extension of time, alteration, or modification of the contract documents or of the work to be performed thereunder, shall in any way affect its obligations or this bond, and it does hereby waive notice of any such change, extension of time, alteration, or modification of the contract documents or of work to be performed thereunder. IN WITNESS WHEREOF, this instrument has been duly executed by the Principal herein named on the 24th day of March , 2015, the name and corporate seal of each corporate party being hereto affixed and these presents duly signed by its undersigned representatives pursuant to authority of its governing body. PRINCIPAL: LV Pacific Point LLC A Delaware Limited Liability Company (NOTARIZATION AND SEAL) By: PAMI LLC, its Managing Member By: �I Its: Jonas Stiklorius Authorzed ry SURETY: Ironshore In mnity Inc. (NOTARIZATION AND SEAL) B Christopher L. Dobbs-Attorney-in-Fact Page 2 of 3 APPROVED AS TO FORM: By, Hans Van Ligten, City ,tsrney NOTE: Please attach Acknowledgement and Power of Attorney Page 3 of 3 POWER OF ATTORNEY 111- 20000348 Ironshore Indemnity Inc. KNOW ALL MEN BY THESE PRESENTS,that IRONSHORE INDEMNITY INC.,a Minnesota Corporation,with Its principal office In New York,NY does hereby constitute and appoint:Chris Dobbs,Jalene Brown,and Tracy L.Cantle its true and lawful Attorney(s)-In-Fact to make,execute,seal and deliver for,and on Its behalf as surety,any and all bonds,undertakings or other writings obligatory In nature of a bond. This authority is made under and by the authority of a resolution which was passed by the Board of Directors of IRONSHORE INDEMNITY INC.on the 22n°day of April,2013 as follows: Resolved,that the Director of the Company Is hereby authorized to appoint and empower any representative of the company or other person or persons as Attomey-In-Fact to execute on behalf of the Company any bonds,undertakings,policies,contracts of Indemnity or other writings obligatory in nature of a bond not to exceed$7,500,000 dollars,which the Company might execute through its duty elected officers,and affix the seal of the Company thereto. Any said execution of such documents by an Attorney-inFact shall be as binding upon the Company as If they had been duly executed and acknowledged by the regularly elected officers of the Company.Any AttorneMlmFact,so appointed,may be removed for good cause and the authority so granted may be revoked as specified in the Power of Attorney. Resolved,that the signature of the Director and the seal of the Company may be affixed by facsimile on any power of attorney granted,and the signature of the Secretary, and the seal of the Company may be affixed by facsimile to any certificate of any such power and any such power or certificate beating such facsimile signature and seal shall be valid and binding on the Company.Any such power so executed and sealed and certificate so executed and sealed shall,with respect to any bond of undertaking to which it is attached,continue to be valid and binding on the Company. IN WITNESS THEREOF,IRONSHORE INDEMNITY INC has caused this Instrument to be signed by its Director,and its Corporate Seal to be affixed this 7°i day of August,2013 IRONSHORE INDEMN17Y INC. By: Di 8 L.Sus n mss° Director AMOWtEOGEMENT On this 7w Day of August,2013,before me,personally came Daniel L Sussman to me known,who being duly swam,did depose and say that he is the Director of Ironshore Indemnity, Inc,the corporation described In and which executed the above Instn mem;that he executed said Instrument can behalf of the corporation by authority of his office under the By-laws of said corporation. NOT PUBLIC-STATE OF NEW Y RK ,x No. 01666222764 kC (S QUIlllad In NOW York CountV J emr MY Cpnlningin EgpkM JINI,01, 2014 Nobry Peak CERTIFICATE I,the undersigned,Secretary of IRONSHORE INDEMNITY INC,a Minnesota Company,DO HEREBY CERTIFY that the original Power of Attorney of which the foregoing is a true and cW tect copy,is In full force and effect and has not been revoked and the resolutions as set forth are now in force. Signed and Sealed at this tam Oay of Num 201s ^NARNING:Any person who knowingly and with Intent to defraud any Inwrance company or other person,Was and application for Insurance or statement or claim containing any materially false Information, or conceals for We purpose of misleading information concerning any fan material thereto, commits a fraudulent hsurame act which Is a crime and subjects such person to criminal and civil penaltlea. SUBDIVISION LABOR AND MATERIAL BOND (GOVERNMENT CODE 66499.2) Bond No: SUR20000348 KNOW ALL MEN BY THESE PRESENTS, that LV Pacific Point LLC (hereafter designated as "Principal"), "), and Ironshore Indemnity Inc. , as Surety (hereinafter called "Surety') agree to install and complete certain designated public improvements as conditioned by City Council Resolution No's.92-6-16-4 and 03-09-16-06. WHEREAS, said Principal is required to furnish a bond pursuant to Municipal Code Section 9-5.101 and 9-5.109 et seq., for the faithful performance to guarantee certain work, more particularly described as follows: Off-Site Circ. subdivision improvements within Tract NIA as defined within Amendment #1 and Reinstatement of the Subdivision Improvement Agreement for Tract NIA. NOW, THEREFORE, we, the Principal and Surety are held firmly bound unto the City of San Juan Capistrano, (hereafter called "Obligee") in the penal sum of Two Million Five Hundred Seventy Two Thousand and 001100 Dollars, ($2,572,000.00) lawful money of the United States, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, successors, executors and administrators, jointly and severally, firmly by these presents. NOW, THEREFORE, the condition of this obligation is such that if the above bound Principal, his or its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by and well and truly keep and perform the covenants, conditions and provisions per City Council Resolution No's. 92-6-16-04 and 03-09-16- 06, on his or their part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their true intent and meaning, and shall indemnify and save harmless the City, its offers, agents and employees as therein stipulated, and, as necessary enter into a Subdivision Agreement, then this obligation shall become null and void; otherwise it shall be and remain in full force and effect. Page 1 of 3 BE IT FURTHER RESOLVED: 1. As a part of the obligation secured hereby, and in addition to the face amount specified therefore, there shall be included costs and reasonable expenses and fees, including reasonable attorney's fees, incurred by City in successfully enforcing such obligation, all to be taxed as costs and included in any judgment rendered. 2. Said Principal hereby stipulates and agrees that no change, extension of time, alteration, or modification of the terms of the agreement or of the work to be performed thereunder, shall in any way affect its obligations or this bond, and it does hereby waive notice of any such change, extension of time, alteration or modification of the terms of the agreement or of the work or to the specifications. IN WITNESS WHEREOF, this instrument has been duly executed by the Principal herein named on the 24th day of March 2015, the name and corporate seal of each corporate party being hereto affixed and these presents duly signed by its undersigned representatives pursuant to authority of its governing body. PRINCIPAL: LV Pacific Point LLC A Delaware Limited Liability Company (NOTARIZATION AND SEAL) By: PAMI LLCM, its Managing Member By: f:]?r�i�.� onas tiklorius Its: Authorized Signatory SURETY: Ironshore Indemnity Inc. (NOTARIZATION AND SEAL) B : Chnstopt er bs -Att mey-in-Fact Page 2 of 3 ... . '.,. . . . ,�� '', .. _ ,.,� ` . �' t,, -. '� . .. - � ., ' - .. ---_- ' _ .: �.., �. .. .: �. ' .. � � - r � .. :. � �O - � . t' t, _ - i -_ �.,,,pr�i�� . -,, c- -� , APP VE AS TO FORM: sy Hans Van Ligten, City Attorney NOTE: Please see attached Acknowledgement and Power of Attorney Page 3 of 3 POWER OF ATTORNEY III- 20000348 Imnshore Indemnity Inc KNOW ALL MEN BY THESE PRESENTS,that IRONSHORE INDEMNITY INC.,a Minnesota Corporator,with its principal office In New York,NY does hereby constitute and appoint:Chris Dobbs,Jalene Brown,and Tracy L Cadile its true and lawful Attorneylsl-m-Fact to make,execute,seal and deliver for,and on Its behalf as surety,any and all bonds,undertakings or other writings obligatory In nature of a bond. This authority Is made under and by the authority of a resolution which was passed by the Board of Directors of IRONSHORE INDEMNITY INC.on the 22ntl day of April,2013 as follows: Resolved,that the Director of the Company Is hereby authorized to appoint and empower any representative of the company or other person or persons as Attomey-IrvFatt to execute on behalf of the Company any bonds,undertakings,policies,contracts of Indemnity or other writings obligatory In nature of a bond not W exceed$7,500,000 dollars,which the Company might execute through its duly elected officers,and affix the seal of the Company thereto. Any said execution of such documents by an Attomey In-Fact shall be as binding upon the Company as If they had been duly executed and acknowledged by the regularly elected officers of the Company.Any Attorney-In-Fact,so appointed,may be removed for good cause and the authority so granted may be revoked as specified in the Power of Attorney. Resolved,that the signature of the Director and the seal of the Company may be affixed by facsimile on any Power of attomey granted,and the signature of the Secretary, and the seal of the Company may be affixed by facsimile to any certificate of any such power and any such power or certificate bearing such facsimile signature and seal shall be valid and binding on the Company.Any such Power so executed and sealed and certificate so executed and sealed shall,with respect to any bond of undertaking to which It is attached,continue to be valid and binding on the Company. IN WITNESS THEREOF,IRONSHORE INDEMNITY INC has caused this instrument to be signed by Its Director,and Its Corporate Seal to be affixed this 76 day of August,2013 IRONSHORE INDEMNITY INC. Ox4erLo n Director AaNOWIEOGEMENT On this 7"Day of August,2013,before me,personally came Daniel L.Sussman to me known,who being duly swom,did depose and say that he is the Director of Imnshore Indemnity,Ino,the corporation described in and which executed the above Instrument;that he executed mid instrument on behalf of the corporation by authority of his office under the By-laws of said corporation. NOT PUBLIC-STATE OF NEW Y RK No. OIDE6222764 I Cu lifted In NOW York Court J erger My CommWE lon xphes June 01, 2014 Nabry Pubec CERTIFICATE I,the undersigned,Secretary of IRONSHORE INDEMNITY INC,a Minnesota Company, DO HEREBY CERTIFY that the original Power of Attorney of which the foregoing is a true and correct copy,is In full force and effect and has not been revoked and the resolutions as set forth are now In farce. Signed and Sealed at this tam pay of Mayo, .301 Y sa=suy 1yARNING:Any person who knowingly and with Intent to defraud any Insurance company or other person,Oks and application for Insurance or statement of claim containing any materially false information, or comeals for the purpose of misleading information concerning any fact material thereto, commits a fuudukot insurance act which is a Wine and subjects such person us criminal and civil penaln s.- ;•��.r��.�l l .�t• �� : j �. •r� /1/(: Acknowledgement of Surety State of Tennessee County of Wilson On this, 24th day of March, 2015, located in and for said County and State, before me personally came Christopher L. Dobbs,to me known, who, being by me duly sworn, did depose and say that he resides in Mt.Juliet, TN; that he is the Attorney in Fact dully appointed for Ironshore Indemnity Inc., the corporation described in and which executed the above instrument; and that he signed his name thereto by authority of the board of directors of said corporation to the Subdivision Faithful Performance, Labor & Material Bond for LV Pacific Point I.I.C. In Witness hereof, I here unto set my hand and official seal. (3&iL Notary Public Jalene Brown County of Residence: Sumner My Commission Expires: May 25, 2016 SEAL: N.Om1.�Lmm wm uw�rm uaw mrmmm mmw wa.m..m:.. +amens w�wa...anw:Nnm. nwwbmwagwwN owwnWaemwu.rl+l �OQ/0 mma.w4mnmmmuam Ar..rarmml4FarrwYm.a.a WLw mmMrmynYm��m Um}y �mw.M.4.rmu.Y:an.. 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OO�Weq,i YpmhYanM1:.Wlvmun ALYM TUPoaONR NMsu Prue.stated Naw%rk No.017118004614OLuffied pq Camdmk0 Expuw j*141010 STATE OF NEW YORK ) ) ss.. COUNTY OF NEW YORK ) On the 1 st day of April in the year 2015 before me, the undersigned, personally appeared Jonas Stiklorius, 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/she executed the same in his/her capacity, and that by his/her signature on the instrument, the individual, or the person or entity upon behalf of which the individual acted, executed the instrument. 4 'Lx"'o ' (? 4"Z'4"� Signature and Office of individual taking acknowledgment LISA A.PHELAN Nota-y Pwitc,State of New York Quanf eo in New York County Reg No.UlPH6292618 Commission Expires November 4,2017