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04-0302_WILLIAM LYON HOMES, INC._Surety AgreementSURETY AGREEMENT THIS AGREEMENT is made by and between the CITY OF SAN JUAN CAPISTRANO, a municipal corporation, hereinafter referred to as the "City" and William Lyon Homes, Inc., a California Corporation, referred to as "Developer". WITNESSETH WHEREAS, City will issue Grading Permit No.47796 to Developer to construct certain designated improvements, more particularly described in Exhibit "A" attached and incorporated herein by reference, which said improvements constitute a portion of that real property at the location of Rancho Viejo Road, APN 650-141-01, 04 & 650-152-09, 04, 06 & 07, commonly referred to as Honeyman Ranch Tract 16221. WHEREAS, San Juan Capistrano Municipal Codes Section 8-2.08 requires the posting offinancial security to secure the faithful performance and laborand materialsforthe grading and installation of improvements connected with issuance of grading permits including the construction of drainage and protection devices and any other corrective work to remove and eliminate engineering and geological hazards. WHEREAS, San Juan Capistrano Municipal Code Section 8-2.09 authorizes the Building Official to require additional bonding as securityto ensure against adverse aesthetic impacts arising from incomplete grading and/or improvements from development projects which have not been completed. WHEREAS, the Building Official finds thatthe proposed project site is highly prominent and visible to the community, has unique topographic features or involves substantial grading of slope areas. NOW, THEREFORE, in consideration of the premises and promises hereinafter contained, City and Developer agree as follows: 1. Developer's Improvements Obligations. Developer shall, at its sole cost and expense, provide and furnish all labor, materials and equipment for the installation of improvements set forth in Exhibit "A". The grading permit and plans, which further defines the improvements in Exhibit "A", are on file in the office of the City's Building Official, and all documents referenced in Exhibit "A" are incorporated herein by reference. 2. Developer's Security. Developer shall provide a Performance Bond by duly authorized corporate surety, Bond Number SU5004461 subject to the approval of the City Attorney, to secure Developer's improvement obligations required under this agreement. The amount of the bond shall be $635,590.00 for that work described in Exhibit "A". This security of $635,590.00 shall also serve as security for restoration of the site. A copy of the surety instrument, as approved by the City Attorney, is attached as Exhibit "D". 3. Completion of Improvements. To ensure the protection of the public safety, health and welfare, Developer shall construct the improvements described in Exhibit "A" in accordance with the schedule as set forth in Exhibit "B", and the conditions as set forth in Exhibit "C". 4. Developer Default. In the event Developer does not complete the required improvements, including erosion and silt control measures within the time required, using Best Management Practices (BMP) in implementing a Water Quality Management Plan in full compliancewith Orange County National Pollutant Discharge Elimination System (NPDES) Storm Water Implementation Agreementand San Juan Capistrano Municipal Code Section 8-14, or abandons the project site, or suspends work for more than twentyworking days other than previously prescribed, City shall have the right to immediately declare a default and to make demand on the surety for performance. 5. Restoration of Site. San Juan Capistrano Municipal Code Section 8-2.09 allows the City to require bonding as security to ensure against adverse aesthetic impacts arising from uncompleted grading, drainage and/or improvements which includes illicit non - storm drain water discharge. The purpose of this bonding shall be to restore the property to its original condition if the Developer defaults. This restoration shall include but not be limited to the following: A. Dismantle and/or demolish improvements; B. Grade property to its original contours as shown on the grading plan referred to in Exhibit "A"; C. Remove all debris and construction materials from the site; and D. Install erosion and silt control devices, including hydroseeding, to insure a uniform vegetative cover, or equivalent stabilization measures which include the use of such Best Management Practices as blankets, fiber matrices, catch basin filters, orother erosion resistant soil coverings or treatments to satisfaction of the Director of Engineering and Building. 6. Attomey's Fees. Developer agrees to pay City such sum as the court mayjudge as reasonable forthe legal services of an attorney representing the City in an action brought to enforce or interpret the obligations of this agreement, and such sum shall be made apart of anyjudgment in such action against Developer if such action is determined in favor of said City. 7. Developer's Work in Safe Condition. Developer shall perform all work in a safe workmanlike manner and shall take such precautions as may be necessary to warn and protect the public from any dangerous condition caused by the construction of said improvements. 8. Liability. Developer shall hold City, its officers, and employees harmless from any and all claims, demands, causes of action, liability or loss of any sort because of, or arising out of, the acts or omissions of Developer, his contractor, subcontractors, agents or employees in the performance of this agreement. In witness whereof, the parties have executed this agreement as of Z--, 2004 at San Juan Capistrano, California. Developer Willia7Lyo es, c. By: Thomas Grable Assistant Secretary Approv as to Form: By: Joh Shaw City Attorney City of San Juan Capistrano Daniel Building Official EXHIBIT "A" Honeyman Ranch—William Lyon Homes, Inc. Tract 16221 Item 1: Construction of all on-site grading (cut, fill and slope stabilization) operations in accordance with Grading Permit No. 47796 and the Developer's plans and supporting documents as listed below: (A) Grading Plan for Honeyman Ranch—Tract 16221, dated February 25, 2004, prepared by RBF Consulting, Fabio Escobar, Jr. , RCE No. 45662. (B) Geotechnical Report for Honeyman Ranch—Tract 16221, dated September 18, 2003, prepared by Petra Geotechnical, Inc., Siamak Jafroudi GE No. 2024. Item 2: Construction of all on-site improvements in accordance with Grading Permit No. 47796 and Developer's grading plans referenced in Item 1 above, including, but not limited to: driveways, parking areas, retaining walls, erosion and silt control, terrace drains, down drains, sub -drains, area drainage systems, and private storm drain systems not a part of Developer's Improvement Plans filed with the City Engineer. EXHIBIT "B" SCHEDULE FOR COMPLETION OF IMPROVEMENTS Completion Date June 1, 2004 June 1, 2004 Task Rough Grade Certification Landscape Irrigation (Erosion Control) June 1, 2004 Landscape Planting (Erosion Control) EXHIBIT "C" CONDITIONS FOR COMPLETION OF IMPROVEMENTS A. The grading forthis project shall be in strict conformance with the grading plans and related documents as described in Exhibit "A" and Grading Permit No. 47796. B. Grading operationsshall commence within fourteen (14) calendar days after issuance of Grading Permit No. 47796. Winter grading will be conducted in strict accordance with the dynamic erosion and silt control plan submitted bythe Developer, and approved bythe City. This erosion and silt control plan reflects erosion and silt mitigation measures for expected grading conditions as the work progresses through the winter season and shall not be amended except with the permission of the City. In the event Developer does not wish to implement winter grading, or permission for winter grading is rescinded, static erosion and silt control plans reflecting current conditions of grading shall be submitted within ten (10) days of cessation of work. These plans shall: 1. Identify all pollutant sources including sources ofsedimentthat mayaffectthe quality of storm water discharges associated with the construction activity. 2. Include the erosion and sediment control planting and hydroseeding to insure a uniform vegetative cover or equivalent stabilization measures which include the use of such Best Management Practices as blankets, fiber matrices, catch basin filters or other erosion resistant soil covering or treatments to the satisfaction of the City Engineer. C. The supervising civil engineer and soils engineer shall file biweekly progress reports of all grading operations with the Building Official. An interim compaction report, for that work completed atthe time work is suspended forthe rainy season, shall be filed with the Building Official. This interim report shall conform to the grading code requirements for final compaction reports. D. Contractor shall control dust to the satisfaction of the Building Official or his deputy. During grading, Contractor shall keep water truck on site and dampen work area, grounds, and loaded trucks. E. Grading operations suspended during the rainy season shall be resumed no laterthan 15 days from date of suspension termination. F. Developershall provide approved on-site archaeological monitor during all phases of grading and foundation excavation and submita final archaeological reporttothe City upon completion of the grading. G. The grading forthis projeGtshall bein substantial conformance to the grading concepts of Tract Map No. 16221 as approved by City Council Resolution No. 03-5-20-2, and in strict conformance with the grading plans and related documents as described in Exhibit "A" and Grading Permit No. 47796. H. A building construction phasing plan shall be submitted for review by the Planning Department. Said plan must be approved prior to issuance of any building permits for any structures within the boundaries of this project. Installation of final erosion and sediment control devices, planting, landscaping and irrigation, as required by City Council Resolution No. 03-5-20-2, Conditions of Approval, shall be commenced within seven (7) calendar days after Rough Grade Certification has been approved, or at anytime at the discretion of the Building Official. Street trees and erosion and sediment control devices, planting, landscaping, if applicable, shall be installed in accordance with City Council Resolution No. 03-5-20-2. J. Installation of interim erosion and sediment control devices and systems shall commence within seven (7) days after rough grade certification has been approved by the Building Official and must be completed within fifteen (15) days of rough grade certification. Final erosion and sediment control devices, planting, landscaping and irrigation systems shall be installed prior to final inspection of the grading permit. K. All work shall be performed in strict observation of the Hours of Operation in accordance with San Juan Capistrano Municipal Code Section 8-1.03. L. Contractor shall adhere to conditions of haul route permit and encroachment permit issued by the City Engineer. M. No construction trucks are to stop or stand on Rancho Viejo Road. N. Parking for construction crew is to be on-site. O. Construction and grading equipment traffic shall takeaccessfrom RanchoViejo Road. Developer shall provide all traffic control measures as required for safe vehicular movement and shall secure an encroachment (haul -route) permitfrom the Engineering Department prior to issuance of the grading permit. Bond IISU5004461 Premium: $4,767.00 PERFORMANCE BOND KNOW ALL MEN BY THESE PRESENTS, that William Lyon Homes, Inc. as Principal (hereinafter called "Contractor"), and Arch Insurance Company as Surety (hereinafter called "Surety"), are held and firmly bound unto the City of San Juan Capistrano, as obligee (hereinafter called "City"), in the amount of six Hundred Thirty Five Thousand Five Hundred Ninety and No/100ths Dollars($635,590.00 ) for payment: whereof Contractor and Surety bind themselves, their heirs, executors, administratcrs, successors and assigns, jointly and severally, fairly by these presents. WHEREAS, Contractor has, by written agreement dated entered into a (describe agreement): TR 1116221 Honeyman Ranch - Rough Grading which contract is, by reference, made a, part hereof. NOVI, THEREFORE, the condition of this obligation is such that, if Contractor shall promptly and faithfully perform said agreement, then this obligation shall be null and void; otherwise it shall remain in full force and effect. Surety waives whatever legal right it may have to require that a demand be made first against the Contractor in the event of default. BE IT FURTHER RESOLVED, that: 1. As a part of the obligation secured hereby, and in addition to the face amount specked, -there shall be included costs and reasonable expenses and fees, including reasonable: attome)(s fees, incurred by City in successfully enforcing such obligation, all to be taxed as costs and included in any judgment rendered. c:unyniesVomi;APerformanceBond.wpd -1- 05110/00 2. Said Surety, forvalue 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 herebywaive notice of any such change, extension of time, alteration or modification of the contract documents or of work to be performed thereunder. Execvtedthis 3rd dayof_ January 200_4_, at Irvine_ APPROVE'] AS TO FORM: By John R. Sh City Attorney California. PRINCIPAL WILLIAM77 (NOTARIZATION AND SEAL) Thomas G. Grable Assistant Sec aWy SURETY ARCH INSURANCE COMPANY udnAhWn' (NOTARIZATION AND SAL) Victoria M Campbell, Attorney -in -Fact aVnyfiles\fomis%PerfoamancaBand.wpd -2- 05+0100 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) On February 11, 2004 before me, Susan E Menard, Notary Public, personally appeared THOMAS G. GRABLE personally known to me — OR — proved to me 9R the bas's of satisfaGtGry evidenGe to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature Susan E Menard, Notary Public Commission #1447352 Commission Expires October 26, 2007 -..-1 14 OFFICIAL SEAL SUSAN E. MENARD NOTARY PUBLIC -CALIFORNIA m m COMMISSION # 1447352 ORANGE COUNTY My Commission Exp. October 26, 2007 STATE OF California } SS. COUNTY OF Orange J FEB U 3 MOn ,before me, Janina Monroe, Notary Public PERSONALLY Victoria M Campbell personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowl- edged to me that he/she/they executed the same in his/ her/their authorized capacity(ies), and that by his/her/ their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature OPTIONAL --a,� JANNAMONROE A . Cornmiss;nn:t_v�aa.as Notary Public - California Oranga? county PAY Camp ExPr%' Jun 2S, 70M This area for Official Notarial Seal Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER ❑ INONIOUAL ❑ CORPORATE OFFICER TRLE(s) ❑ PARTNER(S) C1 LIMITED ❑ GENERAL Ni ATTORNEY-IN-FACT ❑ TRUSTEE(S) ❑ GUARDIAWCONSERVATOR ❑ OTHER: SIGNER IS REPRESENTING: NAME OF PERSON(5) OR ENTRY(IES) DESCRIPTION OF ATTACHED DOCUMENT TITLE OR TYPE OF DOCUMENT NUMBER OF PAGES DATE OF DOCUMENT SIGNER(S) OTHER THAN NAMED ABOVE ID -081 Rev. 6/94 ALL-PURPOSE ACKNOWLEDGEMENT ARCH Insurance Company NOTICE — DISCLOSURE OF TERRORISM PREMIUM ARCH Surety In accordance with the Terrorism Risk Insurance Act of 2002, we are providing this disclosure notice for bonds on which Arch Insurance Company is the surety. DISCLOSURE OF PREMIUM The portion of the premium attributable to coverage for terrorist acts certified under the Act is Zero Dollars ($0.00). DISCLOSURE OF FEDERAL PARTICIPATION IN PAYMENT OF TERRORISM LOSSES The United States will pay ninety percent (90%) of covered terrorism losses exceeding the applicable insurer deductible. POWER OF ATTORNEY Know All Men By These Presents: That the Arch Insurance Company, a corporation organized and existing under the laws of the State of Missouri, having its principal office in Kansas City, Missouri (hereinafter referred to as the "Company") does hereby appoint Victoria M. Campbell, Thomas G. McCall and Janina Monroe of Irvine, CA (EACH) its true and lawful Attorney(s)-in-Fact, to make, execute, seal, and deliver from the date of issuance of this power for and on its behalf as surety, and as its act and deed: Any and all bonds and undertakings EXCEPTION: NO AUTHORITY is granted to make, execute, seal and deliver bonds or undertakings that guarantee the payment or collection of any promissory note, check, draft or letter of credit. This authority does not permit the same obligation to be split into two or more bonds in order to bring each such band within the dollar limit of authority as set forth herein. - The Company may revoke this appointment at any time. The execution of such bonds and undertakings in pursuance of these presents shall be as binding upon the said Company as fully and amply to all intents and purposes, as if the same had been duly executed and acknowledged by its regularly elected officers at its principal office in Kansas City, Missouri. This Power of Attorney is executed by authority of resolutions adopted by unanimous consent of the Board of Directors of the Company on March 3, 2003, true and accurate copies of which are hereinafter set forth and are hereby certified to by the undersigned Secretary as being in full force and effect: "VOTED, That the Chairman of the Board, the President, or any Vice President, or their appointees designated in writing and filed with the Secretary, or the Secretary shall have the power and authority to appoint agents and attorneys -in -fact, and to authorize them to execute on behalf of the Company, and attach the seal of the Company thereto, bonds and undertakings, recognizances, contracts of indemnity and other writings, obligatory in the nature thereof, and any such officers of the Company may appoint agents for acceptance of process." This Power of Attorney is signed, sealed and certified by facsimile under and by authority of the following resolution adopted by the unanimous consent of the Board of Directors of the Company on March 3, 2003: VOTED, That the signature of the Chairman of the Board, the President, or any Vice President, or their appointees designated in writing and filed with the Secretary, and the signature of the Secretary, the seal of the Company, and certifications by the Secretary, may be affixed by facsimile on any power of attorney or bond executed pursuant to the resolution adopted by the Board of Directors on March 3, 2003, and any such power so executed, sealed and certified with respect to any bond or undertaking to which it is attached, shall continue to be valid and binding upon the Company. 0GML0013 00 03 03 Page 1 of 2 Printed in U.S.A. In Testimony Whereof, the Company has caused this instrument to be signed and its corporate seal to be affixed by their authorized officers, this 21 st day of March, 2003. Arch Insurance Company Attested and Certified Jos Labell, Corporate Secretary "r' t Thomas P. Luckstone, ice President STATE OF CONNECTICUT SS COUNTY OF FAIRFIELD SS I Melissa B. Gilligan, a Notary Public, do hereby certify that Thomas P. Luckstone and Joseph S. Labell personally known to me to be the same persons whose names are respectively as Vice President and Corporate Secretary of the Arch Insurance Company, a Corporation organized and existing under the laws of the State of Missouri, subscribed to the foregoing instrument, appeared before me this day in person and severally acknowledged that they being thereunto duly authorized signed, sealed with the corporate seal and delivered the said instrument as the free and voluntary act of said corporation and as their own free and voluntary acts for the uses and purposes therein set forth. CERTIFICATION ?22Z,aOLl'&ff_1 /j/-ril-"0 Melissa B. Gilfigan, Notary Pub My commission expires 2-28-05 1, Joseph S. Labell, Corporate Secretary of the Arch Insurance Company, do hereby certify that the attached Power of Attorney dated March 21, 2003 ori. behalf_of the person(s) as listed above is a true and correct copy and that the same has been in full force and effect since the date thereof and is in full force and effect on the date of this certificate; and I do further certify that the said Thomas P. Luckstone, who executed the Power of Attorney as Vice President, was on the date of execution of the attached Power of Attorney the duly elected Vice President of the Arch Insurance Company. IN TESTIMONY WHEREOF, I have here to ubscribed my name and affixed the corporate seal of the Arch Insurance Company on this day of ref � 3 2004 20_ JlospjKX Labell, Corporate Secretary This Power of Attorney limits the acts of those named therein to the bonds and undertakings specifically named therein and they have no authority to bind the Company except in the manner and to the extent herein stated. Home Office: Kansas MO cq C 0 C0uoaare 00ML0013 00 03 03 srx Page 2 of 2 "�' h Printed in. U.S.A.