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1997-0116_SAN JUAN VILLAS L.P._AgreementRECORDING REQUESTED BY: First American Title Insurance Co. WHEN RECORDED MAIL TO: City of San Juan Capistrano City Clerk's Office 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Recorded in the County of Orange, California Gary L. Granville, Clerk/Recorder 67.00 19970024396 11; 22am 01/16/97 008 11002739 11 14 R12 21 7.00 60.00 0.00 0.00 0.00 0.00 Space above this line for Recorder's use only AGREEMENT ESTABLISHING SLOPE DISPLACEMENT WARRANTY PROGRAM This Agreement Establishing Slope Displacement Warranty Program ("Agreement") is entered into as of lig�a✓aL7Pi✓ 3 , 1.996, by and among SAN JUAN VILLAS, L.P., a California limited partner- ship ("Developer"), OCEAN POINTE HOMEOWNERS' ASSOCIATION ("Association") and the CITY OF SAN JUAN CAPISTRANO ("City"), and pertains to that certain real property more particularly described on Exhibit "All attached hereto and incorporated herein by this reference ("Property"). R E C I T A L S This Agreement is made with reference to the following facts: A. Developer is in the process of developing the Property as a residential project including open space lots ("Project"), in the City of San Juan Capistrano. B. On September 15, 1987, the City Council ("Council") of the City passed, approved and adopted Ordinance No. 605 ("Basic Ordinance"), requiring that certain residential developments in the City include a slope displacement warranty program. C. On April 6, 1993 the Council passed, approved and adopted Resolution No. 93-4-6-5 ("Original Resolution"), approving vesting Tentative Tract Map No. 14398 and certain other matters. On January 21, 1995, the Council passed, approved and adopted Resolution No. 95-2-21-2 ("Amending Resolution"), amending the Original Resolution. Developer has been required by the City to implement a Soils Warranty Program ("Slope Displacement Warranty Program") with respect to Tract No. 14398. D. The Association is a California non-profit mutual benefit corporation which will own the common area lots within the Project and will serve as the homeowners' association for Tract No. 14398. 068/022154-0010/2131149.8 all/01/96 E. By this Agreement, Developer satisfies in full (i) all conditions of subdivision approval relating to the Slope Displacement Warranty Program (including without limitation Planning Condition A-14 as set forth in the Original Resolution as amended by the Amending Resolution), (ii) all requirements of the Basic ordinance, and (iii) all conditions and requirements of the City in any way relating to any soils subsidence remediation programs at any time implemented by the City. ►Cef 7 onrw"I Definitions. Defined terms whose initial letters are capitalized herein shall have the meanings given to such terms as set forth in this Agreement, including on Exhibit "B" attached hereto. 2. Slope Displacement Warranty Program. 2.1 Slope Displacement Warranty Program and Term. Developer's subdivision approvals for Tract 14398 require that Developer's Project include a "Slope Displacement Warranty Program". This Agreement sets forth the above referenced Slope Displacement Warranty Program. The term or period of the Slope Displacement Warranty Program shall be for a period of ten (10) years after the date of the final grading approval for Tract 14398 ("Slope Displacement Warranty Period"). 2.2 Developer Liability Period. During Developer's Liability Period only, Developer shall make or cause to be made, at Developer's expense, all Covered Repairs necessitated by Slope Displacements of the nature referred to herein as Catastrophic Slope Displacements and/or Surficial Slope Displacements. 2.3 Liability for Certain Catastrophic Slope Displacements. If a Catastrophic Slope Displacement occurs during the portion of the Slope Displacement Warranty Period following expiration of the Developer's Liability Period, the Association shall make or cause to be made the Covered Repairs necessitated by such Catastrophic Slope Displacement. In the event the GHAD elects to make or cause such Covered Repairs to be made, the GHAD and not the Association shall make or cause such Covered Repairs to be made, and the GHAD shall bear the entire cost of the Covered Repairs necessitated by such Catastrophic Slope Displacement. The cost of Covered Repairs paid by either the Association or the GHAD shall be subject to the right to assert claims against responsible persons or entities as and to the extent provided for in Section 2.5 hereof. 149.8 all/01/96 —2— 2.4 Liability for Certain Surficial Slope Displacements. If a Surficial Slope Displacement occurs at any time after the expiration of the Developer Liability Period, the Association shall make or cause to be made, all Covered Repairs necessitated by such Surficial Slope Displacement, at the Association's expense subject to the right to assert claims against responsible persons or entities as and to the extent provided for in Section 2.5 hereof. 2.5 Reserved Rights. Developer, the GHAD as such term is defined in Section 2.6 below and the Association reserve the right to assert claims against any person or entity responsible in whole or in part, by reason of negligence or wilful misconduct of the person or entity against whom the claim is asserted, for displacement of soil on the slopes, whether covered by the Slope Displacement definition or not, including without limitation claims against one another. These reserved rights are subject to all applicable statutes of limitation, including without limitation the ten (10) year limitations period provided by Section 337.15 of the California Code of Civil Procedure. 2.6 GRAD Formation. As a requirement of the City, as soon as practicably possible after full execution and delivery of this Agreement, Developer shall use reasonable and diligent efforts to cause a Geologic Hazard Assessment District ("GHAD") to be created as authorized under Section 26500, et seq. of the California Public Resources Code. The GHAD boundary shall encompass the boundaries of the Property and the GHAD shall be activated upon occurrence of a Catastrophic Slope Displacement. The City shall cooperate to the fullest extent reasonably and legally possible in order to expedite prompt formation of the GHAD at the time herein contemplated and also to expedite its prompt activation upon the occurrence of a Catastrophic Slope Displacement. Further, if permitted by the California Department of Real Estate ("DRE"), all final subdivision public reports for the Project as issued by the DRE shall contain a disclosure as to the nature and existence of the GRAD. The form of grant deed used in conveying residential lots within the Project to third parties shall contain a statement disclosing the formation and existence of the GHAD. It is understood and agreed that Declarant makes no warranty or representation as to the efficacy of the GHAD or its use for the purposes for which it is intended as expressed in this Agreement. Claims Procedures and Adiustments. During the Developer's Liability Period, the Slope Displacement Warranty Program shall be administered by the Developer and thereafter said program shall be administered by the Association. In the event any party receives notice of a claim that a Slope Displacement has occurred, such party shall give all other parties (and the GHAD if it has requested such notice and 068/022154-0010/2131149.8 all/01/96 —3— provided its address to the parties to this Agreement) written notice of such claim setting forth the name and address of the claimant and the nature and extent of the claim to the extent such information is available. Within fifteen (15) days after receipt of any such notice, the person or entity then administering the Slope Displacement Warranty Program shall select an independent and reputable claims adjusting service, geologist and/or soils engineer (duly licensed to the extent required) with experience in handling soils and slope displacement matters (referred to herein as a "Claims Adjuster"). Any Claims Adjuster so selected shall be subject to approval by the other parties to this Agreement, which approval shall not be unreasonably withheld, delayed or conditioned. Any disapproval of the selected Claims Adjuster shall be given in writing to the then administrator of the Slope Displacement Warranty Program and to the other parties to this Agreement within ten (10) days following receipt by the disapproving party of written notice of the selection of the proposed Claims Adjuster. If such written disapproval or a written approval are not given within said ten (10) day period, then approval of the proposed Claims Adjuster shall be deemed to have been timely and properly given. If the proposed Claims Adjuster is properly and time disapproved as contemplated above, then the selection of the Claims Adjuster shall be made by an arbitrator in connection with an arbitration conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association as then in effect. Any such arbitration shall be held and conducted in Orange County, California before one arbitrator who shall be selected by mutual agreement of the parties to this Agreement within fifteen (15) days after any party to this Agreement has notified the other parties that it has commenced or desires to commence an arbitration proceeding for the purpose of selecting a Claims Adjuster. If the parties to the Agreement cannot or do not mutually agree upon an arbitrator within the said fifteen (15) day period, then any party to this Agreement may thereafter request in writing that the presiding Judge of the Superior Court of Orange County, California select and appoint the arbitrator, and any person so selected and appointed by such Judge shall serve as the arbitrator hereunder upon his/her acceptance of such appointment. The arbitrator appointed must be independent and have experience in dealing with soils and slope displacement matters. Final decision by the arbitrator must be made within ninety (90) days from the date the arbitrator is appointed. The parties to this Agreement may submit the names and resumes of proposed Claims Adjusters to the arbitrator, but the arbitrator shall be free to select any Claims Adjuster he or she wishes to select so long as the Claims Adjuster is independent, duly licensed to the extent required,and has experience in handling soils and slope displacement matters. Each party to this Agreement shall bear its own attorneys' fees, costs and expenses incurred in connection with the arbitration. The costs and fees of the arbitrator shall be borne equally by the parties to this Agreement. The decision of the arbitrator in selecting a Claims Adjuster shall be final and judgment may be entered on it in accordance with applicable law in any court having jurisdiction over the matter. 068/022154-0010/2131149.8 all/01/96 —4— The Claims Adjuster selected by the arbitrator as aforesaid shall be deemed the "approved" Claims Adjuster. The approved Claims Adjuster shall be promptly engaged by the party then administering the Soils Displacement Warranty Program, and the Claims Adjuster so engaged shall be responsible for promptly investigating, allocating responsibility for and adjusting all claims which allege that a Slope Displacement has occurred that is within the coverage of the Slope Displacement Warranty Program. After reasonably appropriate investigation and analysis, the approved Claims Adjuster shall determine, among other things: (a) whether the claim is covered by the Slope Displacement Warranty Program and if so then the scope and estimated cost of the Covered Repairs, (b) who has responsibility under this Agreement for actually performing the Covered Repairs or causing them to be performed, and (c) who has under this Agreement the financial responsibility for the requisite Covered Repairs. The person or entity having the ultimate financial responsibility for the Covered Repairs under this Agreement shall also bear the cost of the Claims Adjuster and all investigation costs reasonably incurred by the Claims Adjuster. The Claims Adjuster shall complete his/its analysis as soon as reasonably possible and shall thereupon issue a written report to all of the parties to this Agreement (and to the GHAD if it has requested such notice and provided its address to the parties hereto), which written report shall set forth its findings on the issues referred to above and such other matters as the Claims Adjuster deems appropriate. The parties agree that they shall promptly comply with the decisions and findings of the Claims Adjuster as set forth in such report. The parties intend that the decisions and findings of the Claims Adjuster shall be deemed binding upon them and shall be enforceable against them by a court of competent jurisdiction and any party failing to comply with such decisions and findings of the Claims Adjuster as they affect such party shall be liable for damages and all other relief as may be determined appropriate by a court of competent jurisdiction. 4. Grace Period. A party shall only be deemed in default under this Agreement if such party fails to perform any of its duties or obligations under this Agreement and such failure is not cured within thirty (30) days after written notice of such failure has been given to such party. If such failure cannot reasonably be cured within thirty (30) days after the giving of such notice, then said party shall not be deemed in default under this Agreement if such party commences to cure the failure within said thirty (30) day period and thereafter diligently and in good faith continues to prosecute such curative action to completion. The notice of failure referred to in this Section 4 above shall specify the alleged failure in detail. 068/022154-0010n131149.8 su/01/96 -5- 5. Security for Developer's Obligations - Developer's Security Fund and Developer's Security Fund Account. 5.1 Cash or Bond. Developer will, as soon as practically possible following full execution and delivery of this Agreement, provide the Association with the sum of Eighty -Two Thousand Seven Hundred Sixty -Four Dollars ($82,764) ("Developer's Security Amount") or a bond ("Developer's Security Bond") or other collateral reasonably satisfactory to the City in like amount assuring Developer's performance of its obligation to make certain Covered Repairs under certain circumstances as provided in this Agreement. Such cash, bond or other reasonably satisfactory collateral held by the City shall be referred to herein as "Developer's Security" and/or "Developer's Security Fund". The Association shall promptly upon request, confirm its receipt of the Developer's Security and from time to time, upon request, provide the City and Developer with the then current status of the Developer's Security. If Developer posts the Developer's Security Bond, Developer agrees to report to the Association and the City on each renewal of the Developer's Security Bond or on issuance of a new Developer's Security Bond. If Developer posts any cash as security, the Association shall place such cash in an interest bearing account ("Developer's Security Fund Account") that is insured by the Federal Deposit_ Insurance Corporation or other agency reasonably satisfactory to Developer and all interest accruing with respect to such cash shall inure to the benefit of Developer and may be drawn by Developer periodically (but not more frequently than semi-annually). 5.2 Form of Bond. If Developer elects to post the Bond, the surety and the form of the Bond will be subject to the approval of the City, which approval will not be unreasonably withheld. 5.3 Substitute Security. Developer may provide a substitute form of security legally acceptable to the City, the approval of which will not be unreasonably withheld by the City. To the full extent that the Association has received approved substitute security from Developer, the Association shall promptly release the security for which substitution has been made. 5.4 Insurance. At any time, Developer may, at its sole option, satisfy its security requirement set forth in this Section 5 by providing the Association and the City with evidence of insurance against Slope Displacement for which Developer is financially responsible, provided any such insurance shall be subject to the approval of the City or its authorized representatives, which approval shall not be unreasonably withheld, delayed or conditioned; and provided further that Developer agrees to promptly re-establish Developer's Security Fund to its proper level should such 068/022154-OO10/2131149.8 slv01i96 —6— r insurance expire or sooner terminate or otherwise become non- qualifying. 5.5 Return of Developer's Security. 5.5.1 From time to time during the Developer's Liability Period, upon Developer's written request accompanied by reasonable substantiating evidence, the Association shall release, exonerate and/or return the Developer's Security to Developer, as appropriate, to pay for or reimburse Developer for costs incurred or to be incurred to implement Covered Repairs for which Developer is financially responsible under this Agreement. Notwithstanding the foregoing provisions of this Section 5.5.1, during the Developer's Liability Period, the Developer's Security remaining in the hands of the Association, when added to the current balance of the Association's Restricted Assessment Account (the sum of said addition being referred to herein as the "Sum") shall not be reduced below seventy-five percent (75%) of the Developer's Security Amount, and if during such period, said Sum falls below seventy-five percent (75%) of the Developer's Security Amount, then upon receipt of a written request from the City, Developer shall promptly post with the Association sufficient additional Developer's Security to restore such shortfall and bring the Sum up to seventy-five percent (75%) of the Developer's Security Amount. 5.5.2 If at the time of the expiration of the Developer's Liability Period, the Sum (as such term is defined in Section 5.5.1 above) is less than seventy-five percent (75%) of the Developer's Security Amount, then upon receipt of a written request from the City, Developer shall post with the Association sufficient additional Developer's Security to restore such shortfall and bring the Sum up to seventy-five percent (75%) of the Developer's Security Amount. If, on the other hand, at the time of the expiration of the Developer's Liability Period, the Sum (as such term is defined in Section 5.5.1 above) is greater than seventy-five percent (75%) of the Developer's Security Amount, then upon written request from Developer, the Association shall promptly release, exonerate and/or return to Developer a sufficient amount of Developer's Security to eliminate such excess and bring the Sum equal to seventy-five percent (75%) of the Developer's Security Amount. Nothing to the contrary in this Agreement withstand- ing, following the expiration of the Developer's Liability Period, the Association shall promptly release, exonerate and/or return to Developer all of the Developer's Security still held by the Association, as 149.8 all/01/96 —7— 6 0 and when the amount that was in the Association's Restricted Assessment Account as of the expiration of the Developer's Liability Period, plus the aggregate amount of all assessments levied and collected by the Association for the Association's Restricted Assessment Fund following expiration of the Developer Liability Period equals one hundred percent (1001c) or more of the Developer's Security Amount. 6. Homeowner Association Assessments to Fund the Association's Restricted Assessment Fund. 6.1 Association to Levy and Collect Monthly Assessments. Each month, commencing as hereinafter provided, the Association shall levy and collect homeowner assessments with respect to each residential lot in Tract 14398 (then subject to assessment] on a Dollar ($ ) per residential lot basis, commencing with all such residential lots [then subject to assessment], upon the close of escrow and conveyance of the first residential lot within the Project to be sold and conveyed to a member of the public under the auspices of a final subdivision public report issued by the DRE for any portion of the Project (the "Association's Restricted Assessment Fund"). The Association's Restricted Assessment Fund, consisting of assessment payments and interest thereon, is intended to grow to a total of Eighty -Two Thousand Seven Hundred Sixty -Four Dollars ($82,764) by the end of the Slope Displacement Warranty Period or earlier. The Association's Restricted Assessment Fund shall be established and maintained by the Association as a restricted reserve fund so that the funds therein shall be available to the Developer or the Association for payment or reimbursement of costs for Covered Repairs implemented or to be implemented by the Developer and/or the Association as the party responsible therefor in accordance with the provisions of this Agreement. Monies constituting the Association's Restricted Assessment Fund and interest thereon shall be deposited and retained in a restricted reserve account ("Association's Restricted Assessment Account") to be established by the Association in its name as soon as practicably possible following the later of full execution and delivery of this Agreement or the issuance by the DRE of the initial final subdivision public report covering any residential lots within the Project. Monies in the Association's Restricted Assessment Account shall only be withdrawn and used for the purposes contemplated in this Section 6.1 above. 6.2 Cessation of Assessments Under Certain Circumstances. Except as otherwise provided in this Agreement, the Association may cease levying and collecting assessments as contemplated in Section 6.1 above when the total balance of the Association's Restricted Assessment Account reaches Eighty -Two Thousand Seven Hundred Sixty -Four Dollars ($82,764). 068/022154-0010/2131149.8 all/01/96 —8— 6.3 Replenishment of the Association's Restricted Assessment Account. In the event the Association's Restricted Assessment Account is depleted by the cost of making Covered Repairs, as contemplated by this Agreement, the Association will, by regular or special assessments, restore the total amount in the Association's Restricted Assessment Account to Eighty -Two Thousand Seven Hundred Sixty -Four Dollars ($82,764) within a reasonable period of time. 6.4 Responsibilitv of the Association and its Board of Directors. The Association and its Board of Directors shall be responsible for establishing and maintaining the Association's Restricted Assessment Fund and the Association's Restricted Assessment Account as herein provided, and for levying and using best efforts to collect assessments to fund the Association's Restricted Assessment Fund as herein provided. 6.5 Approval RecLuired for Chancres in Assessments Levied by the Association Pursuant to Section 6. Changes in the amount of, or cessation of, the assessments to be levied by the Association, pursuant to the provisions of this Section 6 shall require the approval of the City and the Developer, which approvals shall not be unreasonably withheld. The City may enforce the provisions of this Section 6. 6.6 Insurance. At any time, Association may, at its sole option, satisfy the Association's Restricted Assessment Fund requirements set forth in this Section 6 by providing the City with evidence of insurance against Slope Displacement for which it is financially responsible; provided any such insurance shall be subject to the approval of the City or its authorized representatives, which approval shall not be unreasonably withheld, delayed or conditioned; and provided further that the Association agrees to promptly reestablish the Association's Restricted Assessment Fund to its proper level should such insurance expire or sooner terminate or otherwise become non -qualifying. 7. Miscellaneous. 7.1 Additional Limitations on Slope Displacement Warranty Program. Nothing to the contrary in this Agreement withstanding, it is agreed that: 7.1.1 The Slope Displacement Warranty Program provided herein expressly excludes slope displacement or any other soils or earth movement or failure of slopes, regardless of cause, not expressly referred to herein, and any and all resulting damage, whether arising out of covered Slope Displacement or not. 068/022154-0010/2131149.8 all/01/96 —9— 7.1.2 In no event will performance of repair work by any person or entity or any other circumstances extend the period of the Slope Warranty provided herein. 7.2 License and Right to Enter. 7.2.1 Appropriate provision in the CC&Rs and in the grant deeds will give Developer and its successors and the Association, a license and right to enter onto the common areas and individually -owned lots within the Project so that Developer or its successors and the Association and their agents may (a) inspect all landscaping, irrigation and drainage devices, and all other natural and artificial conditions which affect or might affect the integrity of the slopes which are the subject of the Slope Warranty, and (b) perform the duties of Developer to the full extent provided for herein. 7.2.2 Appropriate provisions in the CC&R's and in the grant deeds will grant the Association a license and right to enter onto the common areas and individually -owned lots of the Project so that the Association or its agents may inspect, maintain and repair the slopes within the Project to the full extent provided for herein. 7.3 Review and Aooroval by Association. Any proposed alterations by homeowners or any other person or entity to the landscaping, grading, irrigation or drainage on the individually -owned property or common areas will be subject to review and approval by the Board of the Association and/or by its Architectural Committee. 7.4 Reference in Deeds and CC&R's. The grant deeds and the CC&R's will reference this Agreement and the Slope Displacement Warranty Program provided herein. The provisions of this Agreement constitute covenants running with the land and an equitable servitude as to the real property referenced herein. 7.5 Collection and Reporting. The Board of the Association will be responsible for the collection of homeowner assessments for the Association's Restricted Assessment Fund and accounting for such assessments and interest thereon. The Board of the Association will report to Developer and to the City the incidence of covered and non - covered claims, as well as the balance in the Association's Restricted Assessment Fund as of the date of the report. Such reports will be made on or before January 31 and July 31 of each year. The Board will also provide to Developer at its request, and to the City at the City's request, any further information, documentation and/or cooperation as is reasonably necessary to effectuate the purposes of this Agreement. 068/022154-0010/2131149.8 all/01/96 _10— 0 0 7.6 Further Acts. The parties to this Agreement agree to perform such other and further acts and execute such other and further documents as are necessary to effectuate the intent of this Agreement. 7.7 Headings. The headings in this Agreement are inserted for convenience and identification only and are in no way intended to describe, define or limit the scope, intent or interpretation of this Agreement or any provisions hereof. 7.8 No Representations. No party or any agent, employee, representative, or attorney of or for any party has made any statement or representation to any other party regarding any fact relied upon in entering into this Agreement, and no party relies upon any statement, representation or promise of any other party or of any agent, employee, representative or attorney of any other party, in executing this Agreement, or making this settlement provided for herein, except as expressly stated in this Agreement. 7.9 Entire Agreement. This Agreement is the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous oral and written agreements and discussions. This Agreement may be amended only by an agreement in writing among Developer (or its successors in interest or assignees), the City, and the Association. 7.10 Binding Upon Successors. This Agreement is binding upon and shall inure to the benefit of the parties hereto, their respective successors and assigns. 7.10.1 The Original Resolution as amended by the Amending Resolution and as embodied in this Agreement is binding upon Developer's successors in interest or assignees as to the Project, and any or all of them. 7.10.2 Effective upon the sale or other conveyance of Tract 14398 or any portion thereof in bulk, Developer will be relieved of its obligations under this Agreement as to the real property so sold or conveyed, to the extent that such obligations are assumed in writing by Developer's successors in interest or assignees, including without limitation the obligation to provide security for the Slope Warranty herein. Upon the City's receipt of reasonably adequate substitute security from any assuming party, the Developer's Security or the appropriate prorata portion thereof shall be appropriately released, exonerated and/or released to Developer by the City. 7.11 Construction of Agreement. Each party has cooperated in the drafting and the preparation of this Agreement. Hence, in any construction to be made of this O68/022154-0010/2131149.8 alv01/96 —11— 0 Agreement, the same shall not be construed against any party. This Agreement shall be construed under California law. 7.12 Counterparts. This Agreement may be executed in counterparts, and when each party has signed and delivered to the other at least one such counterpart, each counterpart shall be deemed and original, and when taken together with the other signed counterparts, shall constitute one agreement, which shall be binding upon and effective as to all parties. 7.13 Severability and No Waiver. The invalidity or unenforceability of any provision of this Agreement shall not invalidate or render unenforceable any of the other provisions of this Agreement. No wavier of any provision of this Agreement shall constitute a waiver of any other provision, nor shall any such waiver constitute a continuing waiver unless otherwise agreed in writing. 7.14 Termination. Unless otherwise agreed among the parties, this Agreement shall automatically terminate upon expiration of the Slope Displacement Warranty Period at which time the obligations on the part of Developer (or its successors in interest or assignees) will automatically terminate and the unused cash, Bond or other Developer Security provided by Developer (or its successors in interest or assignees) which is still held by the City and/or by the Association, if any, shall be promptly and appropriately returned to Developer, exonerated and/or released from any further obligation, and upon such termination, the requirement that the Association maintain reserves in the Association's Restricted Assessment Fund shall be deemed likewise terminated. Nothing to the contrary herein withstanding, this Agreement shall not be deemed terminated as provided in this Section 7.14 above as to obligations and liabilities arising because of Slope Displacements occurring prior to the expiration of the Slope Displacement Warranty Period so long as a good faith written claim with respect to such Slope Displacement has been received by the parties prior to expiration of the Slope Displacement Warranty Period. 7.15 Attorneys' Fees. In the event of any dispute between the parties to this Agreement or any action or proceeding to enforce any provision of this Agreement or to seek a declaration of rights under this Agreement, the prevailing party or parties shall be entitled to recover from the other party or parties all expenses, fees and costs of such matter, including without limitation reasonable attorneys' fees and any costs of appeal, investigation, preparation and professional or expert consultation or testimony incurred in connection with the matter. Moreover, if any party hereto without fault is made a party to any litigation instituted by or against any other party hereto, such other party shall indemnify such innocent party against and save him harmless from all costs and expenses, including 068/022154-0010/2131149.8 all/01/96 —12— reasonable attorneys' and experts' fees and costs incurred by him in connection therewith. 7.16 Exculpation and waiver. The City and the Association acknowledge that the State of California Public Employees Retirement System ("System") is a limited partner of the limited partner of Developer. Notwithstanding any other term or provision of this Agreement, System's liability hereunder is solely that of a limited partner of the limited partner of Developer and no personal or direct liability shall at any time be asserted or enforceable against System, its Board of Directors, any member thereof, or any employee or agent of System on account of or arising out of any obligations arising out of or related to this Agreement. City and the Association hereby waive any claim against the partners of the limited partner of Developer including the System, irrespective of the compliance or non-compliance now or in the future with any requirements relating to the limitation of liability of limited partners. 7.17 Notices. Any notice which either party may desire to give to the other party must be in writing and may be given by personal delivery, by mailing the same by registered or certified mail, return receipt requested, postage prepaid, or by Federal Express or other reputable overnight delivery service, or by telecopier or other reliable electronic type mail system to the party to whom the notice is directed at the address of such party hereinafter set forth, or such other address and to such other persons as the parties may hereafter designate. Any such notice shall be deemed given upon receipt if by personal delivery, forty-eight (48) hours after deposit in the United States mail, if sent by mail pursuant to the foregoing, or twenty-four (24) hours after deposit with Federal Express or other reputable overnight delivery service, or twenty-four (24) hours after transmission by telecopier or other reliable electronic type mail system. To Developer: San Juan Villas, L.P. c/o Cameo Homes P.O. Box 2990 Newport Beach, California 92658 Telecopier: (714) 250-8574 Copy to: San Juan Villas, L.P. 19752 MacArthur Boulevard, Suite 240 Irvine, California 92715 Telecopier: (714) 833-0477 To Association: Ocean Pointe Homeowners' Association Telecopier: (_) 149.8 aui01/96 -13- To the City: The City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, California 92675 Attn.: Director of Engineering and Building Telecopier: (714) 493-1053 The City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, California 92675 Attn: City Attorney Telecopier: (714) (y.') _- IN WITNESS WHEREOF, this Agreement was executed on the date first above written. Attest: L CITY: THE CITY OF SAN JUAN CAPISTRANO DEVELOPER: SAN JUAN VILLAS L.P., a California limited partnership By: SAN JUAN COMPANY, LLC, a California limited liability company, as general partner By: CAMEO HOMES, a California corporation a, managing [Signatures continued on following page] 149.6 x10/01/96 -14- 0 0 By: CONCORDE DEVELOPMENT, L.P., a California limited partnership as a member By: FERRARI INVESTMENTS, a California corporation, g artner B Dennis age, President ASSOCIATION: OCEAN POINTE HOMEOWNERS' ASSOCIATION, a California non- profit mutual benefit corporation By: Its: as to formcontent day of Lt n , 1996 CAtX Attorney City of San Juan Capistrano 068/022154-00102131149.6 a10101196 -15- STATE OF CALIFORNIA ss. COUNTY OF ORANGE On October 15, 1996 , before me, personally appeared J- C_ riAnIlliaq Jacklyn C. Watson, Notary personally known to me (or proved to me on the basis of satisfac- tory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. Notary PiVIic ff [SEAL] STATE OF CALIFORNIA ss. COUNTY OF ORANGE. ------------------- JACKLYN C. WATSON COMM. #1083983 NOTARY PUBLIC • CALIFORNIA ORANGE COUNTY r My CMMWBiOn E*M January 21, 2000 j On October 15, 1996 , before me, Jacklyn C. Watson, Notary Public personally appeared Dennis Gave personally known to me (or proved to me on the basis of satisfac- tory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. dam.1 Notary VIblic JACKLYN C. WATSON i COMM. #1083983 [SEAL] 'w NOTARY PUBLIC • CALIFORNIA ORANGE COUNTY 068/022154-001012131149.6 a10/01/96 -16- t - Comff EXPIM January 21,2000 i STATE OF CALIFORNIA ) ) ss. COUNTY OF 02RN4 ) On /�icernheT 3. /99d , before me, (�h a/Jo%ri5on.�.�r, v/e personally appeared —� r if personally known to me p-Qved t^ T *r ha &f F c- tc_,-_.__ence) to be the person(s4—whose name{ -s) is/are subscribed to the within instrument and acknowledged to me that he/s+- t ey executed the same in his/..__,'_____r authorized capacity (4 -es), and that by his/he�ir signature(ai-on the instrument the person Fs or the entity upon behalf of which the person4-s acted, executed the instrument. Witness my hand and official seal. 068/022154-0010/2131169.8 all/01/96 —17— 0 EXHIBIT "A" LEGAL DESCRIPTION OF THE PROPERTY That certain real property located in the City of San Juan Capistrano, County of Orange, State of California, described as follows: Lots 1 through 79, inclusive, and Lots A through G, inclusive, of Tract No. 14398 as shown on a map recorded in Book 738, Pages 1 through 7, inclusive, of Maps in the Office of the County Recorder of said County. EXHIBIT "A" TO AGREEMENT ESTABLISHING SLOPE DISPLACEMENT WARRANTY PROGRAM 068/022154-0010/2131149.8 all/01/96 EXHIBIT "B" DEFINITIONS 0 The defined terms set forth below shall have the definitions given to them herein: "Amending Resolution" shall have the definition given to such term in Paragraph C of the Recitals to the Agreement. "Association" shall mean Ocean Pointe Homeowners' Association, a California non-profit mutual benefit corporation. "Association's Restricted Assessment Fund" shall have the meaning given to it in Section 6.1 of the Agreement. "Association's Restricted Assessment Account" shall have the meaning given to it in Section 6.1 of the Agreement. "Basic Ordinance" shall have the meaning given to such term in Paragraph B of the Recital to the Agreement. "Board" shall mean the Board of Directors of the Association. "Catastrophic Slope Displacement" shall mean displacement of a manufactured or natural Covered Slope at a depth greater than three (3) feet with a vertical movement of one (1) foot or more, regardless of cause except for Excluded Coverage Items. "City" means the City of San Juan Capistrano, California. "Claims Adjuster" shall have the meaning given to such term in Section 3 of the Agreement. "Covered Repairs" shall mean all repairs to correct any damage to individual lots and structures or common/public improvements located within the Covered Slopes of the Project and arising due to a specified type of Slope Displacement occurrence, but specifically excluding the Excluded Coverage Items. "Covered Slopes" means the following slopes within the Project: (a) All designated common area landscape slopes to be maintained by the Association pursuant to the provisions of the Master Declaration; (b) All manufactured slopes having a minimum height of five (5) feet in vertical height; EXHIBIT "B" TO AGREEMENT ESTABLISHING SLOPE DISPLACEMENT WARRANTY PROGRAM 068/022154-0OI012131149.8 all/01/96 (c) All natural slopes within two hundred (200) feet of individual lots or all natural slopes within one hundred fifty (150) feet of individual lots to the extent that such natural slopes are within a fuel modification zone within the Project. "Developer" means San Juan Villas, L.P., a California limited partnership. "Developer Liability Period" shall mean the period commencing with completion and acceptance by the City of rough grading for the Project and expiring on the last to occur of (a) expiration of the first three (3) years after completion and acceptance of rough grading of those portions of the Property to be rough graded in connection with the development of the Project, or (b) the close of escrow for the sale of the last unsold residential lot within the Project. "Developer's Security Amount" shall have the meaning given to it in Section 5.1 of this Agreement. "Developer's Security" and "Developer's Security Bond" shall have the meanings given to such terms Section 5.1 of this Agreement. "Developer's Security Fund" shall have the meaning given to it in Section 5.1 of this Agreement. "Developer's Security Fund Account" shall have the meaning given to it in Section 5.1 of this Agreement. "DRE" shall have the meaning given to it in Section 2.6 of this Agreement. "Excluded Coverage Items" means surface cracking and fissures, including without limitation desiccation cracks or erosion, defined as the wearing away of the surface of the slope, as opposed to movement of the slope, resulting from the force of water, wind, persons or vehicles moving over the surface, unless erosion ultimately results in a Slope Displacement, as defined herein, (ii) displacement of soil caused solely by earthquake or seismic activity of significant intensity. "GRAD" shall mean a Geologic Hazard Abatement District established in accordance with the provisions of Public Resources Code Section 26500, et seq. "Original Resolution" shall have the meaning given to it in Paragraph C of the Recitals to this Agreement. "Project" shall have the meaning given to it in Paragraph A of the Recitals to this Agreement. -2- 068/022154-0010/2131149.8 all/01/96 "Property" means that certain real property more particularly described on Exhibit "A" attached hereto, which real property is the subject of Vesting Tentative Map 14398. "Slope Displacement" means Surficial Slope Displacement (as defined herein) and Catastrophic Slope Displacement (as defined herein), but excludes the Excluded Coverage Items and all other slope and soils displacements not specifically included within the definitions of Surficial Slope Displacement and/or Catastrophic Slope Displacement. "Slope Displacement Warranty Period" has the meaning given to it in Paragraph 2.1 of this Agreement. "Slope Displacement Warranty Program" shall have the meaning given to it in Paragraph C of the Recitals and in Paragraph 2.1 of this Agreement. "Sum" shall have the meaning given to such term in Section 5.5.1 of this Agreement. "Surficial Slope Displacement" shall mean a displacement of a manufactured Slope which qualifies as a Covered Slope at a depth of up to three (3) feet with a vertical movement of one (1) foot or more, regardless of cause excepting Excluded Coverage Items. "System" shall have the meaning given to such term in Section 7.16 of this Agreement. -3- 068/022154-0010/2131149.8 all/01/96 :� �J=o 'L�ilj :r' I W.0= CITY CLEAR M flail µLNT Dated : 6/26/2001 C: 1 r o.= :;Arl JUAN C,a; „If:1N To: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 RE : San Juan Villas, L.P. P.O. Box 2990 Newport Beach, CA 92658 Bond # : 3SM 887 019 00 Desc.: Miscellaneous Bond Amount: $82,764.00 Org. Eff. Date : 5/16/1996 You are hereby notified that American Motorists Insurance Company hereby reinstates the bond captioned above and revokes the prior Notice of Cancellation on this bond. This bond is to remain in full force until further notice. Sincerely , 6. ow Attorney -In -Fact, Christina A. Clarkson cc : San Juan Villas, L.P. Lockton Insurance Brokers (Orange) JUN 2 7 2001 I� 7470 N. FIGUEROA, P.O. Box 41375, Los ANGELES, CA 90041 • LIc. # 0426198 • (323) 257-8291 • FAX (323) 256-7218 WT 7n, �'Lqgj L'91 :� �;j " I � �:ilj :I-,' I, 'LIMA 40�ej 6LIM Dated: 06/04/01 Sent Via: F To: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 RE : San Juan Villas, L.P. P.O. Box 2990 Newport Beach, CA 92658 Bond # : 3 S 887 019 00 Desc.: Miscellaneous Bond Amount: $82,764.00 Org. Eff. Date: 5/16/1996 REASON FOR CANCELLATION: Non Payment (If this bond was canceled for Non -Payment it may be Reinstated upon receipt of $828.00 premium + $15.00 reinstatement fee.) M You are hereby notified that American Motorists Insurance Company elects to cancel the bond captioned above in its entirety, in accordance with the terms of said bond. This cancellation will take effect 30 days after the receipt of this notice. Sincerely , KkMPIER. 7470 N. FiGUEROA, P.O. Box 41375, Los ANGELES, CA 90041 • Lic. # 0426198 • (323) 257-8291 . FAX (323) 256-7218 Attorney -In -Fact, rn -S C) Christina A. Clarkson <-, o m cc : San Juan Villas, L.P. City of San Juan Capistrano 0 KkMPIER. 7470 N. FiGUEROA, P.O. Box 41375, Los ANGELES, CA 90041 • Lic. # 0426198 • (323) 257-8291 . FAX (323) 256-7218 American Insurance Compan,qp �= PREMIUM BASED ON FINAL WNTRACT PRICE Bond Number: 3SM 887 019 00 Premium : $828.00/Year PERFORMANCE BOND KNOW ALL MEN BY THESE PRESENTS: That, San Juan Villas. L.P., as Principal, and American Motorists Insurance Company, a Corporation organized and existing older the laws of the State of Illinois and authorized to transact Surety business in the State of California, as Surety, are held and firmly bound unto The City of San Juan Capistrano, as Obligee, in the sum of Eighty -Two Thousand Seven Hundred Sixty -Four Dollars and no/100 ($82,764.00) for which the payment whereof, will and truly be made, said Principal and Surety bind themselves, their heirs, administrators, successors and assigns, jointly and severally, firmly by these presents. CONDITION OF THE FOREGOING OBLIGATION is such that, whereas the above bound Principal has entered into a Contract/Agreement dated , with the Obligee and Ocean Point Homeowners Association ("Association") to do and perform the following work; Slppe Displacement TR #14398 NOW THEREFORE if the above bound Principal shall well and truly perform the work contracted to be performed under said Contract/Agreement then this obligation shall be null and void; otherwise to remain in full force and effect. AS FURTHER UNDERSTOOD AND AGREED the Surety may cancel this bond by written notice served by certified mail upon the City of San Juan Capistrano to the attention of Director of Engineering and Building, at 32400 Paseo Adelanm, San Juan Capistrano, California 92675. Cancellation, which in no event shall be less than thirty (30) days after date of receipt of Surety's notice of cancellation, by the Obligee. This bond is initially effective; 05/16/96 through 05/16/97 and is not transferable nor automatically renewable; however, if all parties agree, the bond shall be renewed annually. The Surety's total aggregate liability shall not exceed Eighty -Two Thousand Seven Hundred Sixty -Four Dollars and no/100 ($82,764.00) including costs and attorneys' fees. In the event of default of Principal, the Obligee will first look to the Association's assessment fund to satisfy or cure the default prior to making demand upon Surety. In the event the Contractors shall be, and declared by Owner to be in default under the contract referenced above, the Obligee having performed Obligee's obligations thereunder, and demand has been duly made upon to Associations' assessment fund, Surety may promptly remedy the default, or shall promptly: 1. Complete the Contract/Agreement in accordance with its terms and conditions or, 2. Determine for itself the amount for which it is liable to the Obligee. In the event, any monies have been received by the Obligee from the Association's assessmentfund, Surety will receive a credit for said amount aced pay the Obligee its difference as soon as practical. SIGNED, SEALED, DATED: 5116/96 * See attached exculpation provision San Juan Villas, L.P. *See attached signaturerpage) By: American Motorists Insurance Company (Surety) By:adW6:8,0aRibLH Victoria M. Campbell, Attrney In Fact In DIRECT CORRESPONDENCE TO: LOU JONES & ASSOCIATES, PO BOX 41375, 7470 N. FIGUEROA ST., LOS ANGELES, CA 90041 PHONE (213) 257-8291 • FAX (213) 256-7218 ..,I State of County of On California Orange DATE 17J before me, K. R. Viodes, Notary Public NAME, TITLE OF OFFICER - E.G., 'JANE DOE,§ OTARY PUBIIQ ' personally appeared Victoria M. Campbell *********** NAME(S) OF SIGNER(S) 0 personally known to me - to be the person(%) whose nameoQ is/aa subscribed to the within instrument and acknowledged to me that to/she/tdeyr executed the same in NW/her/#W authorized capacity(Imb), and that byAtis/her/*ahKsignature Q4 on the instrument the K. R. VIODES F personQ, or the entity upon behalf of which the person ) COMM. --X1019554 acted, executed the instrument. .F -•:i' MOIL, r 'UO:JC CALIFORNIA ORANCE COUNTY MY COMMISSION EXPIRES MAY 4_1998 I WITNESS, my hand_ and official seal. OPTIONAL Though the data below is not required by law, it may prove valuable to persons retying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER ❑INDIVIDUAL ❑CORPORATE OFFICER Tm.E(S) ❑PARTNER(S) ❑LIMITED ❑GENERAL ❑x ATTORNEY-IN-FACT ❑TRUSTEE(S) ❑GUARDIAN/CONSERVATOR ❑OTHER: DESCRIPTION OF ATTACHED DOCUMENT TITLE OR TYPE OF DOCUMENT NUMBER OF PAGES DATE OF DOCUMENT SIGNER IS REPRESENTING: SIGNER(S) OTHER THAN NAMED ABOVE NAME OF PERSON(S) OR ENTITY(IES) (i • SIGNATURE BLOCK San Juan Villas, L.P., a California Limited Partnership By: San Juan Company, LLC, a California limited liability company, as general partner By: Cameomes, a ifornia corpor ion as naging Membe By: C 1 Gianulias, P 1dent By: Concorde Development, L.P., a California.limited parntership, a Member By: Ferrari investments, a California corporation, as r e, President CALIFORNIA ALL•PURPOCKNOWLEDGMENT • State ofc i County of Axa w C_ )/t t ao,�97G before me, %J/A�� tiE�sC 1loi��X P�l3t+c, / DATE NAME. TITLE OF OFFICER E.G.. VANE DOE, NOTARY PUBLIC' personally appeared -T_ 1,7 NAME($) OF SIGNER(S) 12 personally known to me - OR - ❑ proved to me on the basis of satisfactory evidence to be the person(s) whose name( is/are subscribed to the within instrument and ac- knowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature( on the instrument the person L), +F.»EssE or the entity upon behalf of which the M4 C=M.t1027238 = erson/s acted, executed the instrument. s'o Notary Public — California p U ORANGE COUNTY Ir My Comm. EAMee MAY 22, 1996 WITNESS my hand and official seal. SIGNATURE OF NOTARY l OPTIONAL 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 No. 5907 ❑ INDIVIDUAL ❑ CORPORATE OFFICER TITLE(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ❑ ATTORNEY-IN-FACT ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTHER: SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTITY(IES) DESCRIPTION OF ATTACHED DOCUMENT r / TITLE OR TYPE O � DOCUML44T NUMBER OF PAGES DATE OF DOCUMENT SIGNER(S) OTHER THAN NAMED ABOVE 01993 NATIONAL NOTARY ASSOCIATION • 8236 Remmet Ave., P.O. Box 7184 • Canoga Park, CA 91309-7184 ADDEW6 70 CONTRA(VAGREENIENT t. Exculvation and Waiver The parties to this contract/agreement acknowledge that the State of California Public Retirement System ("CALPERS") is a limited partner in >HP Investment Fund I, L.P., a California Limited Partnership, which is the Limited Partner of San Juan Villas, L.P., a California Limited Parmership. As such, notwithstanding anything to the contrary in this contract/agmement, the parties to this contract/agreement hereby (a) acknowledge and agree that CALPERS' liability hereunder is solely that of a limited partner in the Limited Partner and no personal, or direct liability shall at any time be asserted or enforceable against CALPERS, its board, any member thereof, or any employee or agent of CALPERS on account of or arising out of any obligations arising out of or related to this contractlagreement, and (b) waives any claim against the parmers in the Limited Partner, including, without limitation, CALPERS, irrespective of the compliance or noncompliance now or in the future. with any requirements. relating to the liability of limited partners. This contract/agreement would not be entered into except for the acknowledgment by the parties to the above. aZ&mw AMERICAN MOTORISTS A OANCE COMPANY • Home, Off lee: Lay Grove, IL 6004 POWER OF ATTORNEY Know All Men By These Presents: �reuart That the American Motorists Insurance Company, a corporation organized and existing under the laws of the State of Illinois, and 'having its principal office in Long Grove, Illinois, does hereby appoint VICTORIA M CAMPBELL its true and lawful agent(s) and atiorney(s)-in-fact, to make, execute, sal, and deliver during the period beginning with the date of issuance of this power and ending December 31, 1997, unless sooner revoked for and on its behalf as surety, and as its act and dead: Name of Principal: SAN JUAN VILLAS, L.P. Bond No.: 3SM 887 01900 Penal Sum: $ 82,764.00 Name of Obligee: CITY OF SAN JUAN CAPISTRANO Description: SLOPE DISPLACEMENT TRACT 1114398 EXCEPTION: NO AUTHORITY is granted to make, execute, seal and deliver any bond or undertaking which guarantees the payment or collection of any promissory note, cheek, draft or letter of credit. This authority does not -permit the saes obligation to be split into two or more bonds in order to bring each such bond within the dollar limit of authority as set forth herein. This appointment ay be revoked at any time by the American Motorists Insurance Company. The execution of such bonds and undertakings in pursuance of these presents shall be as binding upon the said American Motorists Insurance 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 Long Grove, Illinois. THIS APPOINTMENT SHALL CEASE AND TERMINATE WITHOUT NOTICE As OF DECEMBER 31, 1997. This Power of Attorney is executed by authority of a resolution adopted by the Executive Committee of the Board of Directors of said American Motorists Insurance Company on February 23, 1988 at Long Grove, Illinois, a trua and accurate copy of which is hereinafter set forth and is hereby certified to by the undersigned Secretary as Wing in full force and effect: ^VOTED, Tha', the C,lairnan of the Hoard, the President, or any Vice President, or their appointees dasignated 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 then 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 my 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 Executive Committee of the Board of Directors of the Company at a meeting duly called and hold on the 23rd day of February, 1988: "VOTED, That the signature of the Chairman of the Board, the President, 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, an certifications by the Secretary, may W affixed by facsimile on any power of attorney or bond executed pursuant to resolution adopted by the Executive Committee of the Bard of Directors on February 23, 1988 and any such power so executed, sealed and certified with respect to any bond or undertaking to which it is attached, shall continue to b valid and binding upon the Company. - In Testimony Whereof, the American Motorists Insurance Company has caused this instrument to be signed and its corporate seal to be affixed by its authorized officers, this 16th day of May , 19 96 . Attested and Certified: W. A. Grauzas, AMERICAN MOTORISTS INSURANCE COMPAP by J. S Kemper, III, Exec. Vice Presidi NOTE: ANY ERASURES OR WHITE OUT WILL VOID THIS POWER OF ATTORNEY. 8� STATE OF ILLINOIS COUNTY OF LAKE Ss I, Irene Klewer, a Notary Public, do hereby certify that J. S. Kemper, III and F. C. McCullough personally known to ma to be the sane persons whose names are respectively as Exec. Vice President and Secretary of the American Motorists Insurance Company, a Corporation of the State of Illinois, 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 act for the uses and purposes therein set forth. My commission expires: 1-28-98 iw i. Irene Kleiver, Notary Public { "OFFICIAL SEAL" ► f Irene Klewer NO 4 Notary Public, Sure of Illinois ► 4 w Csmmisdee Expires tawae No CERTIFICATION I, N. J. 2arida, Secretary of the American Motorists Insurance Company, do hereby certify that the attached Power of Attorney dated July 26, 1993 on behalf of the person(s) as listed on the reverse side is a true and correct copy and that the same has been in full fora and effect since the data thereof and is in full force and effect on the data of this certificate/ and I do further certify that the said J. S. Kemper, III and N. A. Grouzas who executed the Power of Attorney as Exec. Via President and Secretary respectively were on the data of the execution of the attached Power of Attorney the duly elected Exac. Vice President and Secretary of the American Motorists Insurance Company. IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed the corporate seal of the American Motorists Insurance Company on this 16th day of MaY , 19 96 il. u_•�2 N.J.Zarede, 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 heroin stated. TO VERIFY THIS POWER OF ATTORNEY, CALL (7093 320-2160. FM 362-10 5-91 PRINTED IN U.S.A. Power of Attorney - Tern 0 January 6, 1997 Mr. Dennis Gage Concorde Development 19752 MacArthur Boulevard, Suite 240 Irvine, California 92715 Re: Slope Displacement Warranty Program Dear Mr. Gage: 0 MEMBERS OF THE CITY COUNCIL COLLENE CAMPBELL JOHN GREINER WYATT HART GIL JONES DAVID M. SWERDLIN CITY MANAGER GEORGESCARBOROUGH At their meeting of December 3, 1996, the City Council of the City of San Juan Capistrano approved the "Agreement Establishing Slope Displacement Warranty Program" for Tract 14398, San Juan Villas, L.P. Two copies of the signed Agreement are enclosed, one for Concorde Development and one for Ocean Pointe Homeowners Association. The City's copy has been forwarded to the Orange County Recorder's Office. The recording information will be forwarded to you once we have received the document back in this office. Very truly yours, X�Y/ Y� CherylJohnson9 City Clerk Enclosure cc: Engineering and Building Director 32400 PASEO ADELANTO. SAN JUAN CAPISTRANO. CALIFORNIA 92675 0 (714) 493-1171 O U'3 a r r 0 0 0 r 0 r Ln 0 0 0 W X r 171 0 ro< z P O 0 m .il O .0 � o "m � om m m m 0 m z T, mn m M m f7 0 � { # O T D 2 P O� D z D n Q � P N M_ M m W D z 0 o 0 N -n M N EQM n0 W o1mo c Zw DW 90 <F r DN O : Zxom m as 1� T DN�0 .0o m� a yNN a n o D am Z G IM z = o m a, K) mai o >0 TI m m J M z N Cl) uJ . m � I: nim m m o 2 LJt0 .z n n, n3.mz a3az ;nC oma ado mom. —o' m o 0 ' r m N m n N W J O D N m Olio P z O C a N X N P � W r 0 O j `- 0 ro< z P O 0 m .il O .0 � o "m � om m m m 0 m z T, mn m M m f7 0 � { # O T D 2 C D z D n Q � P Zyi m W D z 0 o 0 0 City of San Juan Capistrano CHECK REQUEST ADMINISTRATIVE SERVICES DEPARTMENT Address Check to: Name: Clerk -Recorder's Office Address: County of Orange P. O. Box 238 Santa Ana, California 92701 Check Amount Requested: $68.00 Check Total: $68.00 Invoice Number: n/a Account12-62168-4703-132 Invoice Date: n/a Check stub to contain the following: Recording Fee for Slope Displacement WarrantyAgreement (Concorde) Check Requested By: Employee: Cheryl Johnson Department: City Manager Date: December 16, 1996 Department Approval: Transmittal Instructions: Return Check To: ❑ Mail With Attached: OOther (specify): FOR ADMINISTRATIVE SERVICES USE ONLY Vendor Number: Warrant Number: Approved: Date: 2. 3. The 9 'of Demands and filed. 0 20, 1996, in�the total amount of $112,61 As set fo in the Report dated D cember 3, 1996, from the Ci Attorney, the License Agree nt for Use of Public Pr perty was approved with Dogimic Nitti to establish and m/nt a garden on a port n of the Swanner property for the one-year period of O1,199b, through S tember 30, 1997. The May was authorized to execute the LAgreement on be f of the City. —� 4. APPROVAL OF AGREEMENT FOR SURFICIAL SOILS REMEDIATION PROGRAM VILLAS. L.P./OCEAN - TRACT 14398. CONCORDE POINT HOMEOWNERS DEVELOPMENT ASSOCIATION) (SAN JUAN (600.30) As set forth in the Report dated December 3, 1996, from the Engineering and Building Director, the Agreement Establishing Slope Displacement Warranty Program was approved with San Juan Villas, L.P. and Ocean Pointe Homeowners' Association establishing a Surficial Soils Remediation Program, as provided by Municipal Code Section 9-10. The following items were removed from the Consent Calendar and voted on separately at the request of Council Member Jdnes. report dated Decemb r 3, 1996, from the irector of Engineering d Building, recommending that F Map 92-123 to subdi ' e a 2.5 5_a lot into four cels at 31711 and 31741 Los at treet be approved. One arcel will encompass the a sting parking area for the Montanez Adobe, another will cr to a separate parcel fort Rodman House, the third will be a' ga lot for future devel ment, and the fourthpar l is presently the Solag Disposal site. It was ved by Council Final ap 92-123 to sub Rios treet be approved, Sub ivision Map Act at 92 1-17-3 and 96-8-6-10. F. nal Map, and the City ( d# Campbell, seconded b Council Member Swe lin, that a 2.595 -acre lot into foxir parcels at 31711 an 1741 Los d on the finding that e Map is in conform ce with the e conditions set fo by City Council R olutions Nos. City Engineer and C' y Clerk were authoriz d to execute the was directed to re ord the Map with the ounty Recorder. City coumit Mioutus -3- 12/3/96 00NF0R1AtV 1:.:,'` :e3 Compared ►Kitts Or;gir,4, January 6, 1997 Clerk -Recorder's Office County of Orange P. O. Box 238 Santa Ana, California 92701 40 MEMBERS OF THE CITY COUNCIL COLLENE CAMPBELL JOHN GREINER WYATT HART GIL JONES DAVID M. S W ERDLIN CITY MANAGER GEORGESCARBOROUGH Recorded in the county of orange, California ,,11,1,�� Gary L. Granville Clerk/Recorder 61.00 006 1,002736 11 119910024396 11:22am 01/16/91 R12 21 7.00 60.00 0.00 0.00 0.00 0.00 R. o 1' l 1.' n" 1 M707 .. I VE' 11 Gentlemen: The following document is enclosed for recordation: Agreement Establishing Slope Displacement Warranty Program When placed of record, please return said document to this office. A check in the amount of $68.00 is enclosed to cover recording and conformed copy fees. A duplicate copy of this letter is enclosed. Please stamp Document Number and date of recording on the letter and return it to this office in the enclosed, stamped, self-addressed envelope at your earliest convenience. Thank you for your cooperation. Very truly yours, ChLJohns"4 City Clerk Enclosure Document Number Date 32400 PASEO ADELANTO, SAN JUAN CAPISTRANO. CALIFORNIA 92675 • (714) 493-1171 ✓` • COPY 32400 PASEO ADEIANTO SAN JUAN CAPISTRANO, CA 92675 (949) 493-1171 (949) 4931053 FAX www.sanjuancapistrano.org June 3, 2005 1➢IRRRRRAXFR � FSIAIIISX[B I 1961 1776 American Motorists insurance Company 1 Kemper Drive Long Grove, IL 60049-0001 A Performance Bond was received by the City of San Juan Capistrano BOND NO. #3SM 887 019 00 AMOUNT $82,764.00 RE Slope Displacement Tract #14389 MEMBERS OF THE CITY COUNCIL SAM ALLEVATO DIANE BATHGATE WYATT HART JOE SOTO DAVID M. SWERDLIN This bond was formally released by the City Council at their meeting of March 15, 2005. The City of San Juan Capistrano hereby fully and forever releases and discharges American Motorists Insurance Company from any and all liability under the abovementioned bond number -- per instruction of the City Council. The original — released — document is attached. If you have any questions, please do not hesitate to call me at (949) 443-6308. Very truly Meg M9a�ijhan, CMC — as noted cc: Sam Shoucair, Senior Engineer Nasser Abbaszadeh, Engineering & Building Director Concord Development (19700 Fairchild Road, Ste 120, Irvine, CA 92612) San Juan Villas, LP (19752 MacArthur Blvd, Ste 240, Irvine, CA 92715 & PO Box 2990, Newport Beach, CA 92658) San Juan Capistrano: Preserving the Past to Enhance the Future 0 Pnntetl on recvcletl pacer 7-1 to�7 M• Dated: 6/10/98 To: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 RE : San Juan Villas, L.P. P.O. Box 2990 Newport Beach, CA 92658 Bond # : 3SM88701900 Desc.: Miscellaneous Bond Amount : $82,764.00 Org. Eff. Date: 5/16/96 RELEA SL J You are hereby notified that American Motorists Insurance Company hereby reinstates the bond captioned above and revokes the prior Notice of Cancellation on this bond. This bond is to remain in full force until further notice. Sincerely , Attorney -In -Fact, z Christina A. Clarkson — '.n N cc : San Juan Villas, L.P. o� AON Risk Services/Irvine 4n =x� b KemPeR. 7470 N. FIGUEROA, P.O. Box 41375, LOS ANGELES, CA 90041 • Lic. # 0426198 • (213) 257-8291 • FAx (213) 256-7218 Dated: 05/26/98 Sent Via: F To : City of San Juan Capistrano 32400 Paseo Adelanto a San Juan Capistrano, CA 92675 a C - K- < rn v RE : San Juan Villas, L.P. P.O. Box 2990 Newport Beach, CA 92658 coo Bond # : 3SM88701900 Dese.: Improvements �1.� ✓ U L4l��t �.1� CCL i �1 ��r� f Bond Amount: $82,764.00 Org. Eff. Date : 5/16/96 " �� / L U, REASON UC REASON FOR CANCELLATION: Principal's Request (If this bond was canceled for Non -Payment it may be Reinstated upon receipt of $ 828.00 premium + $15.00 reinstatement fee.) You are hereby notified that American Motorists Insurance Company elects to cancel the bond captioned above in its entirety, in accordance with the terms of said bond. This cancellation will take effect 30 days after the receipt of this notice. Sincerely , j G. ow Attorney -In -Fact, Christina A. Clarkson cc : San Juan Villas, L.P. AON Risk Services/Irvine 14&nwem 7470 N. FIGUEROA, P.O. Box 41375, Los ANGELES, CA 90041 • LIC. # 0426198 • (213) 257-8291 • FAx (213) 256-7218 American Motorists _nsurance Company PREMIUM BASED ON FINAL CONTRACT PRICE Bond Number: 3SM 887 019 00 Premium: $828.00/Year PERFORMANCE BOND KNOW ALL MEN BY THESE PRESENTS: That, San Juan Villas, L.P., as Principal, and American Motorists Insurance Company, a Corporation organized and existing under the laws of the State of Illinoisand authorized to transact Surety business in the State of California, as Surety, are held and firmly bound unto The City of San Juan Capistrano, as Obligee, in the sum of F' htV.Two Thousand Seven Hundred Sixty -Four Dollars and no/100 ($62;764:00)for which the payment whereof, will and truly be made, said Principal and Surety bind themselves, their heirs, administrators, successors and assigns, jointly and severally, firmly by these presents. CONDITION OF THE FOREGOING OBLIGATION is such that, whereas the above bound Principal has entered into a Contract/Agreement dated with the Obligee and Ocean Point Homeowners Association ("Association") to do and perform the following work; Slope-]2japiacement TRr..#14398' NOW THEREFORE if the above bound Principal shall well and truly perform the work contracted to be performed under said Contract/Agreement then this obligation shall be null and void; otherwise to remain in full force and effect. AS FURTHER UNDERSTOOD AND AGREED the Surety may cancel this bond by written notice served by certified mail upon the City of San Juan Capistrano to the attention of Director of Engineering and Building, at 32400 Paseo Adelanto, San Juan Capistrano, California 92675. Cancellation, which in no event shall be less than thirty (30) days after date of receipt of Surety's notice of cancellation, by the Obligee. This bond is initially effective; 05/16/96 through 05/16/97 and is not transferable nor automatically renewable; however, if all parties agree, the bond shall be renewed annually. The Surety's total aggregate liability shall not exceed Eighty -Two Thousand Seven Hundred Sixty -Four Dollars and no/100 ($82,764.00) including costs and attorneys' fees. In the event of default of Principal, the Obligee will first look to the Association's assessment fund to satisfy or cure the default prior to making demand upon Surety. In the event the Contractors shall be, and declared by Owner to be in default under the contract referenced above, the Obligee having performed Obligee's obligations thereunder, and demand has been duly made upon the Associations' assessment fund, Surety may promptly remedy the default, or shall promptly: I. Complete the ContracUAgreement in accordance with its terms and conditions or; 2. Determine fpr itself the amount for which it is liable to the Obligee. In the event, any monies have been received by the Obligee from the Association's assessment fund, Surety will receive a credit for said amount and pay the Obligee its difference as soon as practical. SIGNED, SEALED, DATED: 5/16/96 * See attached REL§,ASEf exculpation provision San Juan Villas, L.P. (Principal) attached signature page DATE 511� American Motorists Insurance Company (Surety) Victoria M. Campbell, Att rney In Fact DIRECT CORRESPONDENCE TO: I Im LOU JONES & ASSOCIATES, PO BOX 41375, 7470 N. FIGUEROA ST., LOS ANGELES, CA 90041 PHONE (213) 257-8291 • FAX (213) 256-7218 State of County of On California Orange • before me, K. R. Viodes, Notary.Public NAME, TITLE OF OFFICER - E.G.. 'JANE DOE. NOTARY PUBLIC' personally appeared Victoria M. Campbell *********** NAME(S) OF SIGNER(S) Fal personally known to me - OR - ❑ pcoarelot>tr>erscxs�tsasotisEasi�oyrfer4sa to be the person(s) whose nameN is/at!lal: subscribed to the within instrument and acknowledged to me that )he/she/lbi* executed the same in Wher/4fiW authorized capacity(M), and that by*ks/her/fthx signature M on the instrument the person", or the entity upon behalf of which the person% acted, executed the instrument. WITNESS, my hand and official seal. Though the data below is not required by law, it may fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER ❑INDIVIDUAL ❑CORPORATE OFFICER TIT E(S) ❑PARTNER(S) ❑LIMITED ❑GENERAL ATTORNEY-IN-FACT ❑TRUSTEE(S) ❑GUARDIAN/CONSERVATOR ❑OTHER: SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTITY(IES) OF NOTARY OPTIONAL prove valuable to persons relying on the document and could prevent DESCRIPTION OF ATTACHED DOCUMENT TITLE OR TYPE OF DOCUMENT NUMBER OF PAGES DATE OF DOCUMENT SIGNER(S) OTHER THAN NAMED ABOVE K. R. VIODES I� � N COMM. #k1019554 � C �" '� �^° ill NOIR PUBLIC -CALIFORNIA 12Y \4k k`'� ORANGE COUNTY MY COMMISSION EXPIRES MAY 4, 1998 pcoarelot>tr>erscxs�tsasotisEasi�oyrfer4sa to be the person(s) whose nameN is/at!lal: subscribed to the within instrument and acknowledged to me that )he/she/lbi* executed the same in Wher/4fiW authorized capacity(M), and that by*ks/her/fthx signature M on the instrument the person", or the entity upon behalf of which the person% acted, executed the instrument. WITNESS, my hand and official seal. Though the data below is not required by law, it may fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER ❑INDIVIDUAL ❑CORPORATE OFFICER TIT E(S) ❑PARTNER(S) ❑LIMITED ❑GENERAL ATTORNEY-IN-FACT ❑TRUSTEE(S) ❑GUARDIAN/CONSERVATOR ❑OTHER: SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTITY(IES) OF NOTARY OPTIONAL prove valuable to persons relying on the document and could prevent DESCRIPTION OF ATTACHED DOCUMENT TITLE OR TYPE OF DOCUMENT NUMBER OF PAGES DATE OF DOCUMENT SIGNER(S) OTHER THAN NAMED ABOVE SIGNATURE BLOCK San Juan Villas, L.P., a California Limited Partnership By: San Juan Company, LLC, a California limited liability company, as general partner By: Cameo mes, a ifornia corpor ion as Waging Membe „% M Gianulias, C ident By: Concorde Development, L.P., a California limited parntership, a Member By: Ferrari Investments, a California corporation, as a r e, President CALIFORNIA ALL-PURPOSE"ACKNOWLEDGMENT State of • No. 5907 County of u On ao before me, /ylff/� ��1�ssc , ®tloT,4�� DATE NAME, TITLE OF OFFICER �E.G.,'JANE DOE, NOTARY PUBLIC - personally appeared S T),Fu)7U / S (2 Lz- NAME(S) OF SIGNER(S) L- personally known to me - OR - ❑ proved to me on the basis of satisfactory evidence to be the persons) whose name( is/are subscribed to the within instrument and ac- knowledged to me that he/shefttny executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s� on the instrument the personL), MARY F. HESSE or the entity upon behalf of which the _ COMM. i 1027238 z -p, NotoryPubUc— California > person(§) acted, executed the instrument. ORANGE COUNTY Ir 0My Comm. Expirm MAY 22,1998 WI NESS my hand and official seal. SIGNATURE OF NOTARY OPTIONAL 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 DESCRIPTION OF ATTACHED DOCUMENT El INDIVIDUAL 0"-�� 4�c.�-� x5a� ❑ CORPORATE OFFICER . SM yS, 9oo ' ..a.. TITLE(S)TITLE OR TYPE 00 DOCUMONT ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ❑ ATTORNEY-IN-FACT ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTHER: SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTnY(IES) M NUMBER OF PAGES DATE OF DOCUMENT SIGNER(S) OTHER THAN NAMED ABOVE 01993 NATIONAL NOTARY ASSOCIATION - 8236 Remmet Ave., P.O. Box 7184 - Canoga Park, CA 91309-7184 ADDENDUM TO CONTRACT/AGREEMENT Exculpation and Waiver The parties to this contract/agreement acknowledge that the State of California Public Retirement System ("CALPERS") is a limited partner in kHP Investment Fund L L.P., a California Limited Partnership, which is the Limited Partner of San Juan Villas, L.P., a California Limited Partnership. As such, notwithstanding anything to the contrary in this contractlagreement, the parties to this contract/agreement hereby (a) acknowledge and agree that CALPERS' liability hereunder is solely that of a limited partner in the Limited Partner and no personal, or direct liability shall at any time be asserted or enforceable against CALPERS, its board, any member thereof or any employee or agent of CALPERS on account of or arising out of any obligations arising out of or related to this contract(agreement, and (b) waives any claim against the partners in the Limited Partner, including, without limitation, CALPERS, irrespective of the compliance or noncompliance now or in the future with any requirements relating to the liability of limited partners. This contract/agreement would not be entered into except for the acknowledgment by the parties to the above. namwm AMERICAN MOT61LISTS INCE COMPANY Home Office: Long Grove, IL 60049 POWER OF ATTORNEY Know All Men By These Presents: That the American Motorists Insurance Company, a corporation organized and existing under the laws of the State of Illinois, and having its principal office in Long Grove, Illinois, does hereby appoint VICTORIA M CAMPBELL its true and lawful agmt(s) and attorney(s)-in-fact, to Broke, execute, seal, and deliver during the period beginning with the date of issuance of this power and ending December 31, 1997, unless sooner revoked for and on its behalf as surety, and as its act and deed: Name of Principal: SAN JUAN VILLAS, L.P. Bond No.: 3SM 887 01900 Penal Sum: $ 82,764.00 Name of Obligee: CITY OF SAN JUAN CAPISTRANO Description: SLOPE DISPLACEMENT TRACT 1114398 EXCEPTION: NO AUTHORITY is granted to maks, execute, seal and deliver any bond or undertaking which guarantees the payment or collection of any promissory tote, 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 bond within the dollar limit of authority as set forth herein. This appointment nay be revoked at any time by the American Motorists Insurance Company. The execution of such bonds and undertakings in pursuance of these presents shall be as binding upon the said American Motorists Insurance Company as fully and amply to all intents and purposes, as if the sane had been duly executed and acknowledged by its regularly elected officers at its principal office in Long Grove, Illinois. THIS APPOINTMENT SHALL CEASE AND TERMINATE WITHOUT NOTICE AS OF DECEMBER 31, 1997. This Power of Attorney is executed by authority of a resolution adopted by the Executive Committee of the Board of Directors of said American Motorists Insurance Company on February 23, 1988 at Long Grove, Illinois, a true and accurate copy of which is hereinafter set forth and is 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 tiled 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 Executive Committee of the Board of Directors of the Company at a meeting duly called and held on the 23rd day of February, 1988: -VOTED, That the signature of the Chairman of the Board, the President, 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, my be affixed by facsimile on any power of attorney or bond executed pursuant to resolution adopted by the Executive Committee of the Board of Directors on February 23, 1988 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. - In Testimony Whereof, the American Motorists Insurance Company has caused this instrument to be signed and its corporate seal to be affixed by its authorized officers, this 16th day of May , 19 96 . Attested and Certified: J� W. A. Grauzas, AMERICAN MOTORISTS INSURANCE COMPAN by NOTE: ANY ERASURES OR WHITE OUT WILL VOID THIS POWER OF ATTORNEY. J. S. Kemper, III, Exec. Vice Preside umah[e mwan!a • u That the American Motorists Insurance Company, a corporation organized and existing under the laws of the State of Illinois, and having its principal office in Long Grove, Illinois, does hereby appoint VICTORIA M CAMPBELL its true and lawful agmt(s) and attorney(s)-in-fact, to Broke, execute, seal, and deliver during the period beginning with the date of issuance of this power and ending December 31, 1997, unless sooner revoked for and on its behalf as surety, and as its act and deed: Name of Principal: SAN JUAN VILLAS, L.P. Bond No.: 3SM 887 01900 Penal Sum: $ 82,764.00 Name of Obligee: CITY OF SAN JUAN CAPISTRANO Description: SLOPE DISPLACEMENT TRACT 1114398 EXCEPTION: NO AUTHORITY is granted to maks, execute, seal and deliver any bond or undertaking which guarantees the payment or collection of any promissory tote, 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 bond within the dollar limit of authority as set forth herein. This appointment nay be revoked at any time by the American Motorists Insurance Company. The execution of such bonds and undertakings in pursuance of these presents shall be as binding upon the said American Motorists Insurance Company as fully and amply to all intents and purposes, as if the sane had been duly executed and acknowledged by its regularly elected officers at its principal office in Long Grove, Illinois. THIS APPOINTMENT SHALL CEASE AND TERMINATE WITHOUT NOTICE AS OF DECEMBER 31, 1997. This Power of Attorney is executed by authority of a resolution adopted by the Executive Committee of the Board of Directors of said American Motorists Insurance Company on February 23, 1988 at Long Grove, Illinois, a true and accurate copy of which is hereinafter set forth and is 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 tiled 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 Executive Committee of the Board of Directors of the Company at a meeting duly called and held on the 23rd day of February, 1988: -VOTED, That the signature of the Chairman of the Board, the President, 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, my be affixed by facsimile on any power of attorney or bond executed pursuant to resolution adopted by the Executive Committee of the Board of Directors on February 23, 1988 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. - In Testimony Whereof, the American Motorists Insurance Company has caused this instrument to be signed and its corporate seal to be affixed by its authorized officers, this 16th day of May , 19 96 . Attested and Certified: J� W. A. Grauzas, AMERICAN MOTORISTS INSURANCE COMPAN by NOTE: ANY ERASURES OR WHITE OUT WILL VOID THIS POWER OF ATTORNEY. J. S. Kemper, III, Exec. Vice Preside June 3, 2005 American Motorists insurance Company 1 Kemper Drive Long Grove, IL 60049-0001 Re: Release of Bond — Performance Bond # 3SM 887 019 00 (San Juan Villas, LY/Slope Displacement #14298 A Performance Bond was received by the City of San Juan Capistrano BOND NO. #3SM 887 019 00 AMOUNT $82,764.00 RE Slope Displacement Tract #1431 This bond was formally released by the City Council at their meeting of March 15, 2005. The City of San Juan Capistrano hereby fully and forever releases and discharges American Motorists Insurance Company from any and all liability under the abovementioned bond number -- per instruction of the City Council. The original — released — document is attached. If you have any questions, please do not hesitate to call me at (949) 443-6308. Very truly Meg Morahan, CMC — as noted cc: Sam Shoucair, Senior Engineer Nasser Abbaszadeh, Engineering & Building Director Concord Development (19700 Fairchild Road, Ste 120, Irvine, CA 92612) San Juan Villas, LP (19752 MacArthur Blvd, Ste 240, Irvine, CA 92715 & PO Box 2990, Newport Beach, CA 92658) San Juan Capistrano: Preserving the Past to Enhance the Future n r,,, Printed on recycled DaDer 32400 PASEO AOELANTO MEMBERS OF THE CITY COUNCIL SAN JUAN CAPISTRANO, CA 92675 ILLS DAM AL (949) 493-1171 �,y 1=5' IAfOAioARIfA DIANE BATH6ATE ATHG (949) 493-1053 FAX [Stuum[A I IBB) MATT HART www.sanjziancapistrano.org 1771 JOE SOTO • • DAVID M. SWERDLIN June 3, 2005 American Motorists insurance Company 1 Kemper Drive Long Grove, IL 60049-0001 Re: Release of Bond — Performance Bond # 3SM 887 019 00 (San Juan Villas, LY/Slope Displacement #14298 A Performance Bond was received by the City of San Juan Capistrano BOND NO. #3SM 887 019 00 AMOUNT $82,764.00 RE Slope Displacement Tract #1431 This bond was formally released by the City Council at their meeting of March 15, 2005. The City of San Juan Capistrano hereby fully and forever releases and discharges American Motorists Insurance Company from any and all liability under the abovementioned bond number -- per instruction of the City Council. The original — released — document is attached. If you have any questions, please do not hesitate to call me at (949) 443-6308. Very truly Meg Morahan, CMC — as noted cc: Sam Shoucair, Senior Engineer Nasser Abbaszadeh, Engineering & Building Director Concord Development (19700 Fairchild Road, Ste 120, Irvine, CA 92612) San Juan Villas, LP (19752 MacArthur Blvd, Ste 240, Irvine, CA 92715 & PO Box 2990, Newport Beach, CA 92658) San Juan Capistrano: Preserving the Past to Enhance the Future n r,,, Printed on recycled DaDer Dated : 6/10/98 To : City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 RE : San Juan Villas, L.P. P.O. Box 2990 Newport Beach, CA 92658 Bond # : 3SM88701900 Desc.: Miscellaneous Bond Amount : $82,764.00 Org. Eff. Date : 5/16/96 1 COMPANY RELEASL..- You are hereby notified that American Motorists Insurance Company hereby reinstates the bond captioned above and revokes the prior Notice of Cancellation on this bond. This bond is to remain in full force until further notice. Sincerely , Attorney -In -Fact, x Christina A. Clarkson — N cc : San Juan Villas, L.P. co AON Risk Services/Irvine �n �a ra KemPER. 7470 N. FIGUEROA, P.O. Box 41375, LOS ANGELES, CA 90041 • Lic. # 0426198 - (213) 257-8291 - Fax (213) 256-7218 C :7_11711 F• Dated : 05/26/98 Sent Via: F To: City of San Juan Capistrano 32400 Paseo Adelanto a San Juan Capistrano, CA 92675Co ry ` o RE : San Juan Villas, L.P. Y P.O. Box 2990 _Y Newport Beach, CA 92658 m Bond N : 3SM88701900 Desc.: Improvements �/`U L C(, Bond Amount : $82,764.00 G( i 6 t )(f Org. Eff. Date : 5/16/96 REASON FOR CANCELLATION: Principal's Request (/f this bond was canceled for Non -Payment it may be Reinstated upon receipt of $ 828.00 premium + $15.00 reinstatement fee.) You are hereby notified that American Motorists Insurance Company elects to cancel the bond captioned above in its entirety, in accordance with the terms of said bond. This cancellation will take effect 30 days after the receipt of this notice. Sincerely , j G. ow Attorney -In -Fact, Christina A. Clarkson cc : San Juan Villas, L.P. AON Risk Services/Irvine K@IIIP@R. 7470 N. FIGUEROA, P.O. Box 41375, LOS ANGELES, CA 90041 • LIC. # 0426198 • (213) 257-8291 • FAx (213) 256-7218 American MotoristOnsurance Company PREMIUM BASED ON FINAL CONTRACT PRICE Bond Number : 3SM 887 019 00 Premium : $828.00/Year PERFORMANCE BOND KNOW ALL MEN BY THESE PRESENTS: That, San Juan Villas, L.P., as Principal, and American Motorists Insurance Company, a Corporation organized and existing under the laws of the State of Illinois and authorized to transact Surety business in the State of California, as Surety, are held and firmly bound unto The City of San Juan Capistrano, as Obligee, in the sum of Eighty -Two Thousand Seven Hundred Sixty -Four Dollars and no/100 ($82,764.00) for which the payment whereof, will and truly be made, said Principal and Surety bind themselves, their heirs, administrators, successors and assigns, jointly and severally, firmly by these presents. CONDITION OF THE FOREGOING OBLIGATION is such that, whereas the above bound Principal has entered into a Contract/Agreement dated , with the Obligee and Ocean Point Homeowners Association ("Association") to do and perform the following work; Slope Displacement TR #14398 NOW THEREFORE if the above bound Principal shall well and truly perform the work contracted to be performed under said Contract/Agreement then this obligation shall be null and void; otherwise to remain in full force and effect. AS FURTHER UNDERSTOOD AND AGREED the Surety may cancel this bond by written notice served by certified mail upon the City of San Juan Capistrano to the attention of Director of Engineering and Building, at 32400 Paseo Adelanto, San Juan Capistrano, California 92675. Cancellation, which in no event shall be less than thirty (30) days after date of receipt of Surety's notice of cancellation, by the Obligee. This bond is initially effective; 05116196 through 05/16/97 and is not transferable nor automatically renewable; however, if all parties agree, the bond shall be renewed annually. The Surety's total aggregate liability shall not exceed Eighty -Two Thousand Seven Hundred Sixty -Four Dollars and no/100 ($82,764.00) including costs and attorneys' fees. In the event of default of Principal, the Obligee will first look to the Association's assessment fund to satisfy or cure the default prior to making demand upon Surety. In the event the Contractors shall be, and declared by Owner to be in default under the contract referenced above, the Obligee having performed Obligee's obligations thereunder, and demand has been duly made upon the Associations' assessment fund, Surety may promptly remedy the default, or shall promptly: 1. Complete the Contract/Agreement in accordance with its terms and conditions or; 2. Determine for itself the amount for which it is liable to the Obligee. In the event, any monies have been received by the Obligee from the Association's assessment fund, Surety will receive a credit for said amount and pay the Obligee its difference as soon as practical. SIGNED, SEALED, DATED: 5/16/96 * See attached exculpation provision San Juan Villas, L.P. (Principal) ..1$p„p attached signature page DATE L American Motorists Insurance Company 1 `(�`�� 1 //►" 'Sur e ty) By: `LlA d f LSdI l� l I, l fl X Victoria M. Campbell, Att rney In Fact I 0 V DIRECT CORRESPONDENCE TO: I LOU JONES 8 ASSOCIATES, PO BOX 41375, 7470 N. FIGUEROA ST., LOS ANGELES, CA 90041 PHONE (213) 257-8291 • FAX (213) 256-7218 State Of California • County Of Orange On before me, K. R. Viodes, Notary,Public ' DATE NAME. TITLE OF OFFICER - E.G., 'JANE DOE. NOTARY PUBLIC personally appeared Victoria M. Campbell *********** NAME(S) OF SIGNER(S) ❑ personally known to me - OR - ❑ to be the person(s) whose name" is/axx subscribed to the within instrument and acknowledged to me that )he/she/tbW executed the same in 140er/WW authorized capacity(M), and that byxfxis/her/tlmtcsignature M on the instrument the 1, h R. VIODFS F personoo, or the entity upon behalf of which the person'W o ( �I.I COMM.r1019554 V Po01, / I U0, acted, executed the instrument. L � L", CALIFORNIA ORANGE COUNTY j� MY COMMISSION LxalRts MAY a, I998�� WITNESS, my hand and official seal. SIGNATURE OF NOTARY OPTIONAL Though the data below is not required by law, 4 may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER ❑INDIVIDUAL ❑CORPORATE OFFICER TITLES) ❑PARTNER(S) ❑LIMITED ❑GENERAL ATTORNEY-IN-FACT ❑TRUSTEE(S) ❑GUARDIAN/CONSERVATOR ❑OTHER: SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTITY(IES) DESCRIPTION OF ATTACHED DOCUMENT TITLE OR TYPE OF DOCUMENT NUMBER OF PAGES DATE OF DOCUMENT SIGNER(S) OTHER THAN NAMED ABOVE 0 0 SIGNATURE BLOCK San Juan Villas, L.P., a California Limited Partnership By: San Juan Company, LLC, a California limited liability company, as general partner By: Cameomes, a ifornia torpor ion as Waging Membe By: 41 C Gianulias, P ident By: Concorde Development, L.P., a California limited parntership, a Member By: Ferrari Investments, a California corporation, as r e, President CALIFORNIA ALL-PURPOSAKNOWLEDGMENT • State of County of Ck a -Y C_, On 6 before me, �fJ&Ssc 9VoT � AU/3� Ic DATE NAME, TITLE OF OFFICER �E. G.. "JANE DOE, NOTARY PUBLIC" personally appeared S �2 . (�Z 119A) U 1- f/,u b IAF NAME($) OF SIGNER(S) P personally known to me - OR - ❑ proved to me on the basis of satisfactory evidence to be the person(s) whose name( is/are subscribed to the within instrument and ac- knowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature( on the instrument the person(s), MARY F. HESSE or the entity upon behalf of which the COMM.s1ffI7238 Z arson//s acted, executed the instrument. Not PLlblic —California n p J ORANGE COUNTY My Comm. F1pirm MAY 22, 1998 WITNESS my hand and official seal- e4e. SIGNATURE OF NOTARY OPTIONAL No. 5907 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 ❑ INDIVIDUAL ❑ CORPORATE OFFICER TITLES) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ❑ ATTORNEY-IN-FACT ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTHER: SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTITY(IES) �DESCRIPTION OF ATTACHED (DOCUMENT JSm5f8%61900 414 TITLE OR TYPE 00 DOCUM�NT NUMBER OF PAGES DATE OF DOCUMENT SIGNER(S) OTHER THAN NAMED ABOVE 01993 NATIONAL NOTARY ASSOCIATION • 8236 Remmet Ave., P.O. Box 7184 • Canoga Park, CA 91309-7184 ADDENDA TO CONTRACT/AGREEMENT Exculpation and Waiver The parties to this contract/agreement acknowledge that the State of California Public Retirement System C'CALPERS") is a limited partner in U -1P Investment Fund L L.P., a California Limited Partnership, which is the Limited Partner of San Juan Villas, L.P., a California Limited Partnership. As such, notwithstanding anything to the contrary in this contractlagreement, the parties to this contractlagreement hereby (a) acknowledge and agree that CALPERS' liability hereunder is solely that of a limited partner in the Limited Partner and no personal, or direct liability shall at any time be asserted or enforceable against CALPERS, its board, any member thereof; or any emp"oyee or agent of CALPERS on account of or arising out of any obligations arising out of or related to this contract/agreement, and (b) waives any claim against the partners in the Limited Partner, including, without limitation, CALPERS, irrespective of the compliance or noncompliance now or in the future. with any requirements relating to the liability of limited partners. This contract/agreement would not be entered into except for the acknowledgment by the parties to the above. q,da,m, AMERICAN MOTORISTS INS*.NCE COMPANY Home Office: Long Grove, IL 60049 POWER OF ATTORNEY Know All Men By These Presents: That the American Motorists Insurance Company, a corporation organized and existing under the laws of the State of Illinois, and having its principal office in Long Grove, Illinois, does hereby appoint VICTORIA M CAMPBELL its true and lawful agents) and attorney(s)-in-fact, to maks, execute, seal, and deliver during the period beginning with the date of issuance of this power and ending December 31, 1997, unless sooner revoked for and on its behalf as surety, and as its act and dead: Name of Principal: SAN JUAN VILLAS, L.P. Bond No.: 3SM 887 01900 Penal Sum: $ 82,764.00 Name of Obligee: CITY OF SAN JUAN CAPISTRANO Description: SLOPE DISPLACEMENT TRACT 1114398 EXCEPTION: NO AUTHORITY is granted to risks, execute, seal and deliver any bond or undertaking which guarantees the payment or collection of any promissory note, check, draft or letter of credit. This authority does not -permit the some obligation to be split into two or more bonds in order to brims each such bond within the dollar limit of authority as set forth herein. This appointment nay be revoked at any time by the American Motorists Insurance Company. The execution of such bonds and undertakings in pursuance of these presents shall be as binding upon the said American Motorists Insurance 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 Long Grove, Illinois. THIS APPOINTMENT SMALL CEASE AND TERMINATE WITHOUT NOTICE AS OF DECEMBER 31, 1997. This Power of Attorney is executed by authority of a resolution adopted by the Executive Committee of the Board of Directors of said American Motorists Insurance Company on February 23, 1988 at Long Grove, Illinois, a true and accurate copy of which is hereinafter set forth and is 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 Executive Committee of the Board of Directors of the Company at a meeting duly called and held on the 23rd day of February, 1988: "VOTED, That the signature of the Chairman of the Board, the President, 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 resolution adopted by the Executive Committee of the Board of Directors on February 23, 1988 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. - In Testimony Whereof, the American Motorists Insurance Company has caused this instrument to be signed and its corporate seal to be affixed by its authorized officers, this 16th day of May , 19 96 Attested and Certified: AMERICAN MOTORISTS INSURANCE COMPAN W. A. Grauzas, by J. S. Kemper, III, Exec, Vice Preside NOTE: ANY ERASURES OR WHITE OUT WILL VOID THIS POWER OF ATTORNEY. (OVER) nmanx mil OLNMf6 • �J That the American Motorists Insurance Company, a corporation organized and existing under the laws of the State of Illinois, and having its principal office in Long Grove, Illinois, does hereby appoint VICTORIA M CAMPBELL its true and lawful agents) and attorney(s)-in-fact, to maks, execute, seal, and deliver during the period beginning with the date of issuance of this power and ending December 31, 1997, unless sooner revoked for and on its behalf as surety, and as its act and dead: Name of Principal: SAN JUAN VILLAS, L.P. Bond No.: 3SM 887 01900 Penal Sum: $ 82,764.00 Name of Obligee: CITY OF SAN JUAN CAPISTRANO Description: SLOPE DISPLACEMENT TRACT 1114398 EXCEPTION: NO AUTHORITY is granted to risks, execute, seal and deliver any bond or undertaking which guarantees the payment or collection of any promissory note, check, draft or letter of credit. This authority does not -permit the some obligation to be split into two or more bonds in order to brims each such bond within the dollar limit of authority as set forth herein. This appointment nay be revoked at any time by the American Motorists Insurance Company. The execution of such bonds and undertakings in pursuance of these presents shall be as binding upon the said American Motorists Insurance 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 Long Grove, Illinois. THIS APPOINTMENT SMALL CEASE AND TERMINATE WITHOUT NOTICE AS OF DECEMBER 31, 1997. This Power of Attorney is executed by authority of a resolution adopted by the Executive Committee of the Board of Directors of said American Motorists Insurance Company on February 23, 1988 at Long Grove, Illinois, a true and accurate copy of which is hereinafter set forth and is 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 Executive Committee of the Board of Directors of the Company at a meeting duly called and held on the 23rd day of February, 1988: "VOTED, That the signature of the Chairman of the Board, the President, 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 resolution adopted by the Executive Committee of the Board of Directors on February 23, 1988 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. - In Testimony Whereof, the American Motorists Insurance Company has caused this instrument to be signed and its corporate seal to be affixed by its authorized officers, this 16th day of May , 19 96 Attested and Certified: AMERICAN MOTORISTS INSURANCE COMPAN W. A. Grauzas, by J. S. Kemper, III, Exec, Vice Preside NOTE: ANY ERASURES OR WHITE OUT WILL VOID THIS POWER OF ATTORNEY. (OVER) 0 0 3/15/2005 1 AGENDA ITEM TO: Dave Adams, City Manager @*, FROM: Nasser Abbaszadeh, Engineering & Building Director SUBJECT: Consideration of Release of the Surety Associated with the Slope Displacement Warranty Program Agreement (Tentative Tract 14398) (Concorde Development/San Juan Villas, L.P.) RECOMMENDATION By motion: Authorize the release of the Performance Bond associated with the Agreement Establishing Slope Displacement Warranty Program for Tentative Tract 14398 (Concorde Development/San Juan Villas, L.P.). SITUATION A. Summary and Recommendation Tentative Tract No. 14398 (Concorde Development/San Juan Villas, L.P.) was conditioned to establish, by agreement (Attachment 1), a Slope Displacement Warranty Program which required the developer to post an initial performance bond with the City in an amount of $82,764.00 to cover the repair costs of slope displacement within the tract boundaries for a certain period of time. The Agreement states, "termination of the bond would occur when the monthly fees, collected by the Homeowners' Association (HOA) from the homeowners for this particular purpose, reaches 75% of the initial bond." The developer and the HOA have confirmed that the dues collected from the homeowners have now exceeded the required amount and therefore are requesting the City to exonerate the bond in accordance with Section 7.14, Termination. Staff has reviewed the developer's request (Attachment 2), which was also endorsed by the HOA, and therefore recommends the release of corresponding bond No. 3SM 877 019 000, issued by American Motorist Insurance Company on May 16, 1996. 0 Agenda Report Page 2 0 COMMISSION/BOARD REVIEW AND RECOMMENDATIONS Not applicable. FINANCIAL CONSIDERATIONS No City costs are anticipated. NOTIFICATION The following parties received notification of this Council agenda item: Concorde Development " Ocean Point Homeowners Association (HOA) 'Agenda report included RECOMMENDATION By motion: March 15, 2005 Authorize the release of the Performance Bond associated with the Agreement Establishing Slope Displacement Warranty Program for Tentative Tract 14398 (Concorde Development/San Juan Villas, L.P.). Respectfully submitted, Nasser Abbaszadeh, P.E. Engineering & Building Director NA/SS:jcr Prepared by: Senior Engineer Attachment: 1. Agreement Establishing Slope Displacement Warranty Program for Tentative Tract 14398. 2. Concorde's Letter, requesting the bond release. RECORDING REQUESTED BY: First American Title Insurance Co. WHEN RECORDED MAIL TO: City of San Juan Capistrano City Clerk's Office 3,24©0 Paseo Adelanto ,`an Juan Capistrano, CA 92675 __ Recorded in io County of Orange, California Gary L. Granville, Clerk/Recorder INIB USI IIIA VIII II I IIIII SII IIIII M 111111111111 Jill 67.00 19910024396 11;22am 01/16/91 008 11002739 11 14 R12 21 7.00 60.00 0.00 0.00 0.00 0.00 Space above this line for Reco'rder's use only AGREEMENT ESTABLISHING SLOPE DISPLACEMENT WARRANTY PROGRAM This Agreement Establishing Slope Displacement Warranty Program ("Agreement") is entered into as of g_, 1996, by and among SAN JUAN VILLAS, L.P., a California limited partner- ship ("Developer"), OCEAN POINTE HOMEOWNERS' ASSOCIATION ("Association") and the CITY OF SAN JUAN CAPISTRANO ("City"), and pertains to that certain real property more particularly described on Exhibit "A" attached hereto and incorporated herein by this reference ("Property"). R E C I T A L S This Agreement is made with reference to the following facts: A. Developer is in the process of developing the Property as a residential project including open space lots ("Project"), in the City of San Juan Capistrano. B. On September 15, 1987, the City Council ("Council") of the City passed, approved and adopted Ordinance No. 605 ("Basic Ordinance"), requiring that certain residential developments in the City include a slope displacement warranty program. C. On April 6, 1993 the Council passed, approved and adopted Resolution No. 93-4-6-5 ("Original Resolution"), approving vesting Tentative Tract Map No. 14398 and certain other matters. On January 21, 1995, the Council passed, approved and adopted Resolution No. 95-2-21-2 ("Amending Resolution"), amending the Original Resolution. Developer has been required by the City to implement a Soils Warranty Program ("Slope Displacement Warranty Program") with respect to Tract No. 14398. D. The Association is a California non-profit mutual benefit corporation which will own the common area lots within the Project and will serve as the homeowners' association for Tract No. 14398. 068/022154-0010/2131149.8 ail/01/96 ATTACHMENT i1 2iF 3r! 0 n u E. By this Agreement, Developer satisfies in full (i) all conditions of subdivision approval relating to the Slope Displacement Warranty Program (including without limitation Planning Condition A-14 as set forth in the Original Resolution as amended by the Amending Resolution), (ii) all requirements of the Basic Ordinance, and (iii) all conditions and requirements of the City in any way relating to any soils subsidence remediation programs at any time implemented by the City. AGREEMENT Definitions. Defined terms whose initial letters are capitalized herein shall have the meanings given to such terms as set forth in this Agreement, including on Exhibit "B""attached hereto. Slope Displacement Warranty Program. 2.1 Slope Displacement Warranty Program and Term. Developer's subdivision approvals for Tract 14398 require that Developer's Project include a "Slope Displacement Warranty Program". This Agreement sets forth the above referenced Slope Displacement Warranty Program. The term or period of the Slope Displacement Warranty Program shall be for a period of ten (10) years after the date of the final grading approval for Tract 14398 ("Slope Displacement Warranty Period"). 2.2 Developer Liability Period. During Developer's Liability Period only, Developer shall make or cause to be made, at Developer's expense, all Covered Repairs necessitated by Slope Displacements of the nature referred to herein as Catastrophic Slope Displacements and/or Surficial Slope Displacements. 2.3 Liability for Certain Catastrophic Slope Displacements. If a Catastrophic Slope Displacement occurs during the portion of the Slope Displacement Warranty Period following expiration of the Developer's Liability Period, the Association shall make or cause to be made the Covered Repairs necessitated by such Catastrophic Slope Displacement. In the event the GHAD elects to make or cause such Covered Repairs to be made, the GHAD and not the Association shall make or cause such Covered Repairs to be made, and the GHAD shall bear the entire cost of the Covered Repairs necessitated by such Catastrophic Slope Displacement. The cost of Covered Repairs paid by either the Association or the GRAD shall be subject to the right to assert claims against responsible persons or entities as and to the extent provided for in Section 2.5 hereof. 068/022154-0010/2131149.8 all/01/96 —2— 0 0 2.4 Liability for Certain Surficial Slope Displacements. If a Surficial Slope Displacement occurs at any time after the expiration of the Developer Liability Period, the Association shall make or cause to be made, all Covered Repairs necessitated by such Surficial Slope Displacement, at the Association's expense subject to the right to assert claims against responsible persons or entities as and to the extent provided for in Section 2.5 hereof. 2.5 Reserved Rights. Developer, the GHAD as such term is defined in Section 2.6 below and the Association reserve the right to assert claims against any person or entity responsible in whole or in part, by reason of negligence or wilful misconduct of the person or entity against whom the claim is asserted, for displacement of soil on the slopes, whether covered by the Slope Displacement definition or not, including without limitation claims against one another. These reserved rights are subject to all applicable statutes of limitation, including without limitation the ten (10) year limitations period provided by Section 337.15 of the California Code of Civil Procedure. 2.6 GHAD Formation. As a requirement of the City, as soon as practicably possible after full execution and delivery of this Agreement, Developer shall use reasonable and diligent efforts to cause a Geologic Hazard Assessment District ("GRAD") to be created as authorized under Section 26500, et seq. of the California Public Resources Code. The GHAD boundary shall encompass the boundaries of the Property and the GHAD shall be activated upon occurrence of a Catastrophic Slope Displacement. The City shall cooperate to the fullest extent reasonably and legally possible in order to expedite prompt formation of the GHAD at the time herein contemplated and also to expedite its prompt activation upon the occurrence of a Catastrophic Slope Displacement. Further, if permitted by the California Department of Real Estate ("DRE"), all final subdivision public reports for the Project as issued by the DRE shall contain a disclosure as to the nature and existence of the GRAD. The form of grant deed used in conveying residential lots within the Project to third parties shall contain a statement disclosing the formation and existence of the GRAD. It is understood and agreed that Declarant makes no warranty or representation as to the efficacy of the GHAD or its use for the purposes for which it is intended as expressed in this Agreement. Claims Procedures and Adiustments. During the Developer's Liability Period, the Slope Displacement Warranty Program shall be administered by the Developer and thereafter said program shall be administered by the Association. In the event any party receives notice of a claim that a Slope Displacement has occurred, such party shall give all other parties (and the GHAD if it has requested such notice and 068/022154-0010/2171149.8 all/01/96 —3— 0 0 provided its address to the parties to this Agreement) written notice of such claim setting forth the name and address of the claimant and the nature and extent of the claim to the extent such information is available. Within fifteen (15) days after receipt of any such notice, the person or entity then administering the Slope Displacement Warranty Program shall select an independent and reputable claims adjusting service, geologist and/or soils engineer (duly licensed to the extent required) with experience in handling soils and slope displacement matters (referred to herein as a "Claims Adjuster"). Any Claims Adjuster so selected shall be subject to approval by the other parties to this Agreement, which approval shall not be unreasonably withheld, delayed or conditioned. Any disapproval of the selected Claims Adjuster shall be given in writing to the then administrator of the Slope Displacement Warranty Program and to the other parties to this Agreement within ten (10) days following receipt by the disapproving party of written notice of the selection of the proposed Claims Adjuster. If such written disapproval or a written approval are not given within said ten (10) day period, then approval of the proposed Claims Adjuster shall be deemed to have been timely and properly given. If the proposed Claims Adjuster is properly and time disapproved as contemplated above, then the selection of the Claims Adjuster shall be made by an arbitrator in connection with an arbitration conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association as then in effect. Any such arbitration shall be held and conducted in Orange County, California before one arbitrator who shall be selected by mutual agreement of the parties to this Agreement within fifteen (15) days after any party to this Agreement has notified the other parties that it has commenced or desires to commence an arbitration proceeding for the purpose of selecting a Claims Adjuster. If the parties to the Agreement cannot or do not mutually agree upon an arbitrator within the said fifteen (15) day period, then any party to this Agreement may thereafter request in writing that the presiding Judge of the Superior Court of Orange County, California select and appoint the arbitrator, and any person so selected and appointed by such Judge shall serve as the arbitrator hereunder upon his/her acceptance of such appointment. The arbitrator appointed must be independent and have experience in dealing with soils and slope displacement matters. Final decision by the arbitrator must be made within ninety (90) days from the date the arbitrator is appointed. The parties to this Agreement may submit the names and resumes of proposed Claims Adjusters to the arbitrator, but the arbitrator shall be free to select any Claims Adjuster he or she wishes to select so long as the Claims Adjuster is independent, duly licensed to the extent required,and has experience in handling soils and slope displacement matters. Each party to this Agreement shall bear its own attorneys' fees, costs and expenses incurred in connection with the arbitration. The costs and fees of the arbitrator shall be borne equally by the parties to this Agreement. The decision of the arbitrator in selecting a Claims Adjuster shall be final and judgment may be entered on it in accordance with applicable law in any court having jurisdiction over the matter. 068/022154-0010/2171149.8 all/01/96 —4— The Claims Adjuster selected by the arbitrator as aforesaid shall be deemed the "approved" Claims Adjuster. The approved Claims Adjuster shall be promptly engaged by the party then administering the Soils Displacement Warranty Program, and the Claims Adjuster so engaged shall be responsible for promptly investigating, allocating responsibility for and adjusting all claims which allege that a Slope Displacement has occurred that is within the coverage of the Slope Displacement Warranty Program. After reasonably appropriate investigation and analysis, the approved Claims Adjuster shall determine, among other things: (a) whether the claim is covered by the Slope Displacement Warranty Program and if so then the scope and estimated cost of the Covered Repairs, (b) who has responsibility under this Agreement for actually performing the Covered Repairs or causing them to be performed, and (c) who has under this Agreement the financial responsibility for the requisite Covered Repairs. The person or entity having the ultimate financial responsibility for the Covered Repairs under this Agreement shall also bear the cost of the Claims Adjuster and all investigation costs reasonably incurred by the Claims Adjuster. The Claims Adjuster shall complete his/its analysis as soon as reasonably possible and shall thereupon issue a written report to all of the parties to this Agreement (and to the GRAD if it has requested such notice and provided its address to the parties hereto), which written report shall set forth its findings on the issues referred to above and such other matters as the Claims Adjuster deems appropriate. The parties agree that they shall promptly comply with the decisions and findings of the Claims Adjuster as set forth in such report. The parties intend that the decisions and findings of the Claims Adjuster shall be deemed binding upon them and shall be enforceable against them by a court of competent jurisdiction and any party failing to comply with such decisions and findings of the Claims Adjuster as they affect such party shall be liable for damages and all other relief as may be determined appropriate by a court of competent jurisdiction. Grace Period. A party shall only be deemed in default under this Agreement if such party fails to perform any of its duties or obligations under this Agreement and such failure is not cured within thirty (30) days after written notice of such failure has been given to such party. If such failure cannot reasonably be cured within thirty (30) days after the giving of such notice, then said party shall not be deemed in default under this Agreement if such party commences to cure the failure within said thirty (30) day period and thereafter diligently and in good faith continues to prosecute such curative action to completion. The notice of failure referred to in this Section 4 above shall specify the alleged failure in detail. 068/022154-0010/2131149.8 all/01/% —5— r� 5. Security for Developer's Obligations - Developer's Security Fund and Developer's Security Fund Account. 5.1 Cash or Bond. Developer will, as soon as practically possible following full execution and delivery of this Agreement, provide the Association with the sum of Eighty -Two Thousand Seven Hundred Sixty -Four Dollars ($82,764) ("Developer's Security Amount") or a bond ("Developer's Security Bond") or other collateral reasonably satisfactory to the City in like amount assuring Developer's performance of its obligation to make certain Covered Repairs under certain circumstances as provided in this Agreement. Such cash, bond or other reasonably satisfactory collateral held by the City shall be referred to herein as "Developer's Security" and/or "Developer's Security Fund". The Association shall promptly upon request, confirm its receipt of the Developer's Security and from time to time, upon request, provide the City and Developer with the then current status of the Developer's Security. If Developer posts the Developer's Security Bond, Developer agrees to report to the Association and the City on each renewal of the Developer's Security Bond or on issuance of a new Developer's Security Bond. If Developer posts any cash as security, the Association shall place such cash in an interest bearing account ("Developer's Security Fund Account") that is insured by the Federal Deposit_ Insurance Corporation or other agency reasonably satisfactory to Developer and all interest accruing with respect to such cash shall inure to the benefit of Developer and may be drawn by Developer periodically (but not more frequently than semi-annually). 5.2 Form of Bond. If Developer elects to post the Bond, the surety and the form of the Bond will be subject to the approval of the City, which approval will not be unreasonably withheld. 5.3 Substitute Security. Developer may provide a substitute form of security legally acceptable to the City, the approval of which will not be unreasonably withheld by the City. To the full extent that the Association has received approved substitute security from Developer, the Association shall promptly release the security for which substitution has been made. 5.4 Insurance. At any time, Developer may, at its sole option, satisfy its security requirement set forth in this Section 5 by providing the Association and the City with evidence of insurance against Slope Displacement for which Developer is financially responsible, provided any such insurance shall be subject to the approval of the City or its authorized representatives, which approval shall not be unreasonably withheld, delayed or conditioned; and provided further that Developer agrees to promptly re-establish Developer's Security Fund to its proper level should such 068/022154-0010/2131149.8 all/01/96 —6— insurance expire or sooner terminate or otherwise become non- qualifying. 5.5 Return of Developer's Security. 5.5.1 From time to time during the Developer's Liability Period, upon Developer's written request accompanied by reasonable substantiating evidence, the Association shall release, exonerate and/or return the Developer's Security to Developer, as appropriate, to pay for or reimburse Developer for costs incurred or to be incurred to implement Covered Repairs for which Developer is financially responsible under this Agreement. Notwithstanding the foregoing provisions of this Section 5.5.1, during the Developer's Liability Period, the Developer's Security remaining in the hands of the Association, when added to the current balance of the Association's Restricted Assessment Account (the sum of said addition being referred to herein as the "Sum") shall not be reduced below seventy-five percent (75%) of the Developer's Security Amount, and if during such period, said Sum falls below seventy-five percent (75%) of the Developer's Security Amount, then upon receipt of a written request from the City, Developer shall promptly post with the Association sufficient additional Developer's Security to restore such shortfall and bring the Sum up to seventy-five percent (75%) of the Developer's Security Amount. 5.5.2 If at the time of the expiration of the Developer's Liability Period, the Sum (as such term is defined in Section 5.5.1 above) is less than seventy-five percent (75%) of the Developer's Security Amount, then upon receipt of a written request from the City, Developer shall post with the Association sufficient additional Developer's Security to restore such shortfall and bring the Sum up to seventy-five percent (7516) of the Developer's Security Amount. If, on the other hand, at the time of the expiration of the Developer's Liability Period, the Sum (as such term is defined in Section 5.5.1 above) is greater than seventy-five percent (75%) of the Developer's Security Amount, then upon written request from Developer, the Association shall promptly release, exonerate and/or return to Developer a sufficient amount of Developer's Security to eliminate such excess and bring the Sum equal to seventy-five percent (75%) of the Developer's Security Amount. Nothing to the contrary in this Agreement withstand- ing, following the expiration of the Developer's Liability Period, the Association shall promptly release, exonerate and/or return to Developer all of the Developer's Security still held by the Association, as 149.8 all/01/96 -7- 0 0 and when the amount that was in the Association's Restricted Assessment Account as of the expiration of the Developer's Liability Period, plus the aggregate amount of all assessments levied and collected by the Association for the Association's Restricted Assessment Fund following expiration of the Developer Liability Period equals one hundred percent (10016) or more of the Developer's Security Amount. 6. Homeowner Association Assessments to Fund the Association's Restricted Assessment Fund. 6.1 Association to Levy and Collect Monthly Assessments. Each month, commencing as hereinafter provided, the Association shall levy and collect homeowner assessments with respect to each residential lot in Tract 14398 (then subject to assessment] on a Dollar ($ ) per residential lot basis, commencing with all such residential lots (then subject to assessment], upon the close of escrow and conveyance of the first residential lot within the Project to be sold and conveyed to a member of the public under the auspices of a final subdivision public report issued by the DRE for any portion of the Project (the "Association's Restricted Assessment Fund"). The Association's Restricted Assessment Fund, consisting of assessment payments and interest thereon, is intended to grow to a total of Eighty -Two Thousand Seven Hundred Sixty -Four Dollars ($82,764) by the end of the Slope Displacement Warranty Period or earlier. The Association's Restricted Assessment Fund shall be established and maintained by the Association as a restricted reserve fund so that the funds therein shall be available to the Developer or the Association for payment or reimbursement of costs for Covered Repairs implemented or to be implemented by the Developer and/or the Association as the party responsible therefor in accordance with the provisions of this Agreement. Monies constituting the Association's Restricted Assessment Fund and interest thereon shall be deposited and retained in a restricted reserve account ("Association's Restricted Assessment Account") to be established by the Association in its name as soon as practicably possible following the later of full execution and delivery of this Agreement or the issuance by the DRE of the initial final subdivision public report covering any residential lots within the Project. Monies in the Association's Restricted Assessment Account shall only be withdrawn and used for the purposes contemplated in this Section 6.1 above. 6.2 Cessation of Assessments Under Certain Circumstances. Except as otherwise provided in this Agreement, the Association may cease levying and collecting assessments as contemplated in Section 6.1 above when the total balance of the Association's Restricted Assessment Account reaches Eighty -Two Thousand Seven Hundred Sixty -Four Dollars ($82,764). 068/022154-0010/2131149.8 all/01/96 —8— 0 • 6.3 Replenishment of the Association's Restricted Assessment Account. In the event the Association's Restricted Assessment Account is depleted by the cost of making Covered Repairs, as contemplated by this Agreement, the Association will, by regular or special assessments, restore the total amount in the Association's Restricted Assessment Account to Eighty -Two Thousand Seven Hundred Sixty -Four Dollars ($82,764) within a reasonable period of time. 6.4 Responsibility of the Association and its Board of Directors. The Association and its Board of Directors shall be responsible for establishing and maintaining the Association's Restricted Assessment Fund and the Association's Restricted Assessment Account as herein provided, and for levying and using best efforts to collect assessments to fund the Association's Restricted Assessment Fund as herein provided. 6.5 Approval Required for Changes in Assessments Levied by the Association Pursuant to Section 6. Changes in the amount of, or cessation of, the assessments to be levied by the Association, pursuant to the provisions of this Section 6 shall require the approval of the City and the Developer, which approvals shall not be unreasonably withheld. The City may enforce the provisions of this Section 6. 6.6 Insurance. At any time, Association may, at its sole option, satisfy the Association's Restricted Assessment Fund requirements set forth in this Section 6 by providing the City with evidence of insurance against Slope Displacement for which it is financially responsible; provided any such insurance shall be subject to the approval of the City or its authorized representatives, which approval shall not be unreasonably withheld, delayed or conditioned; and provided further that the Association agrees to promptly reestablish the Association's Restricted Assessment Fund to its proper level should such insurance expire or sooner terminate or otherwise become non -qualifying. 7. Miscellaneous. 7.1 Additional Limitations on Slope Displacement Warranty Procrram. Nothing to the contrary in this Agreement withstanding, it is agreed that: 7.1.1 The Slope Displacement Warranty Program provided herein expressly excludes slope displacement or any other soils or earth movement or failure of slopes, regardless of cause, not expressly referred to herein, and any and all resulting damage, whether arising out of covered Slope Displacement or not. 068/022154-0010/2131149.8 alt/01/96 —9— 0 • 7.1.2 In no event will performance of repair work by any person or entity or any other circumstances extend the period of the Slope Warranty provided herein. 7.2 License and Right to Enter. 7.2.1 Appropriate provision in the CC&Rs and in the grant deeds will give Developer and its successors and the Association, a license and right to enter onto the common areas and individually -owned lots within the Project so that Developer or its successors and the Association and their agents may (a) inspect all landscaping, irrigation and drainage devices, and all other natural and artificial conditions which affect or might affect the integrity of the slopes which are the subject of the Slope Warranty, and (b) perform the duties of Developer to the full extent provided for herein. 7.2.2 Appropriate provisions in the CC&R's and in the grant deeds will grant the Association a license and right to enter onto the common areas and individually -owned lots of the Project so that the Association or its agents may inspect, maintain and repair the slopes within the Project to the full extent provided for herein. 7.3 Review and Approval by Association. Any proposed alterations by homeowners or any other person or entity to the landscaping, grading, irrigation or drainage on the individually -owned property or common areas will be subject to review and approval by the Board of the Association and/or by its Architectural Committee. 7.4 Reference in Deeds and CC&R's. The grant deeds and the CC&R's will reference this Agreement and the Slope Displacement warranty Program provided herein. The provisions of this Agreement constitute covenants running with the land and an equitable servitude as to the real property referenced herein. 7.5 Collection and Reporting. The Board of the Association will be responsible for the collection of homeowner assessments for the Association's Restricted Assessment Fund and accounting for such assessments and interest thereon. The Board of the Association will report to Developer and to the City the incidence of covered and non - covered claims, as well as the balance in the Association's Restricted Assessment Fund as of the date of the report. Such reports will be made on or before January 31 and July 31 of each year. The Board will also provide to Developer at its request, and to the City at the City's request, any further information, documentation and/or cooperation as is reasonably necessary to effectuate the purposes of this Agreement. 068/022154-0010/2131149.8 all/01/96 —10— 0 7.6 Further Acts. The parties to this Agreement agree to perform such other and further acts and execute such other and further documents as are necessary to effectuate the intent of this Agreement. 7.7 Headings. The headings in this Agreement are inserted for convenience and identification only and are in no way intended to describe, define or limit the scope, intent or interpretation of this Agreement or any provisions hereof. 7.8 No Representations. No party or any agent, employee, representative, or attorney of or for any party has made any statement or representation to any other party regarding any fact relied upon in entering into this Agreement, and no party relies upon any statement, representation or promise of any other party or of any agent, employee, representative or attorney of any other party, in executing this Agreement, or making this settlement provided for herein, except as expressly stated in this Agreement. 7.9 Entire Agreement. This Agreement is the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous oral and written agreements and discussions. This Agreement may be amended only by an agreement in writing among Developer (or its successors in interest or assignees), the City, and the Association. 7.10 Binding Upon Successors. This Agreement is binding upon and shall inure to the benefit of the parties hereto, their respective successors and assigns. 7.10.1 The Original Resolution as amended by the Amending Resolution and as embodied in this Agreement is binding upon Developer's successors in interest or assignees as to the Project, and any or all of them. 7.10.2 Effective upon the sale or other conveyance of Tract 14398 or any portion thereof in bulk, Developer will be relieved of its obligations under this Agreement as to the real property so sold or conveyed, to the extent that such obligations are assumed in writing by Developer's successors in interest or assignees, including without limitation the obligation to provide security for the Slope Warranty herein. Upon the City's receipt of reasonably adequate substitute security from any assuming party, the Developer's Security or the appropriate prorata portion thereof shall be appropriately released, exonerated and/or released to Developer by the City. 7.11 Construction of Agreement. Each party has cooperated in the drafting and the preparation of this Agreement. Hence, in any construction to be made of this 0 1022154-00i0mma9.a aui0v% -11- 0 0 Agreement, the same shall not be construed against any party. This Agreement shall be construed under California law. 7.12 Counterparts. This Agreement may be executed in counterparts, and when each party has signed and delivered to the other at least one such counterpart, each counterpart shall be deemed and original, and when taken together with the other signed counterparts, shall constitute one agreement, which shall be binding upon and effective as to all parties. 7.13 Severability and No Waiver. The invalidity or unenforceability of any provision of this Agreement shall not invalidate or render unenforceable any of the other provisions of this Agreement. No wavier of any provision of this Agreement shall constitute a waiver of any other provision, nor shall any such waiver constitute a continuing waiver unless otherwise agreed in writing. 7.14 Termination. Unless otherwise agreed among the parties, this Agreement shall automatically terminate upon expiration of the Slope Displacement Warranty Period at which time the obligations on the part of Developer (or its successors in interest 'Or assignees) will automatically terminate and the unused cash, Bond or other Developer Security provided by Developer (or its successors in interest or assignees) which is still held by the City and/or by the Association, if any, shall be promptly and appropriately returned to Developer, exonerated and/or released from any further obligation, and upon such termination, the requirement that the Association maintain reserves in the Association's Restricted Assessment Fund shall be deemed likewise terminated. Nothing to the contrary herein withstanding, this Agreement shall not be deemed terminated as provided in this Section 7.14 above as to obligations and liabilities arising because of Slope Displacements occurring prior to the expiration of the Slope Displacement Warranty Period so long as a good faith written claim with respect to such Slope Displacement has been received by the parties prior to expiration of the Slope Displacement Warranty Period. 7.15 Attorneys' Fees. In the event of any dispute between the parties to this Agreement or any action or proceeding to enforce any provision of this Agreement or to seek a declaration of rights under this Agreement, the prevailing party or parties shall be entitled to recover from the other party or parties all expenses, fees and costs of such matter, including without limitation reasonable attorneys' fees and any costs of appeal, investigation, preparation and professional or expert consultation or testimony incurred in connection with the matter. Moreover, if any party hereto without fault is made a party to any litigation instituted by or against any other party hereto, such other party shall indemnify such innocent party against and save him harmless from all costs and expenses, including 068/022154-0010/2131149.8 alu01/96 —12— 0 • reasonable attorneys' and experts' fees and costs incurred by him in connection therewith. 7.16 Exculpation and Waiver. The City and the Association acknowledge that the State of California Public Employees Retirement System ("System") is a limited partner of the limited partner of Developer. Notwithstanding any other term or provision of this Agreement, System's liability hereunder is solely that of a limited partner of the limited partner of Developer and no personal or direct liability shall at any time be asserted or enforceable against System, its Board of Directors, any member thereof, or any employee or agent of System on account of or arising out of any obligations arising out of or related to this Agreement. City and the Association hereby waive any claim against the partners of the limited partner of Developer including the System, irrespective of the compliance or non-compliance now or in the future with any requirements relating to the limitation of liability of limited partners. 7.17 Notices. Any notice which either party may desire to give to the other party must be in writing and may be given by personal delivery, by mailing the same by registered or certified mail, return receipt requested, postage prepaid, or by Federal Express or other reputable overnight delivery service, or by telecopier or other reliable electronic type mail system to the party to whom the notice is directed at the address of such party hereinafter set forth, or such other address and to such other persons as the parties may hereafter designate. Any such notice shall be deemed given upon receipt if by personal delivery, forty-eight (48) hours after deposit in the United States mail, if sent by mail pursuant to the foregoing, or twenty-four (24) hours after deposit with Federal Express or other reputable overnight delivery service, or twenty-four (24) hours after transmission by telecopier or other reliable electronic type mail system. To Developer: San Juan Villas, L.P. c/o Cameo Homes P.O. Box 2990 Newport Beach, California 92658 Telecopier: (714) 250-8574 Copy to: San Juan Villas, L.P. 19752 MacArthur Boulevard, Suite 240 Irvine, California 92715 Telecopier: (714) 833-0477 To Association: Ocean Pointe Homeowners' Association Telecopier: (_) 068/022154-0010/2131149.8 alu01/96 —13— To the City: The City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, California 92675 Attn.: Director of Engineering and Building Telecopier: (714) 493-1053 The City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, California 92675 Attn: City Attorney Telecopier: (714) (4_') IN WITNESS WHEREOF, this Agreement was executed on the date first above written. Attest: L CITY: THE CITY OF SAN JUAN CAPISTRANO DEVELOPER: SAN JUAN VILLAS L.P., a California limited partnership By: SAN JUAN COMPANY, LLC, a California limited liability company, as general partner By: CAMEO HOMES, a California corporrtion as, managing (Signatures continued on following page] 068/022154-0010/2131149.6 40/01196 -14- By: CONCORDE DEVELOPMENT, L.P., a California limited partnership as a member By: FERRARI INVESTMENTS, a California corporation, g artner B Dennis age, President ASSOCIATION: OCEAN POINTE HOMEOWNERS' ASSOCIATION, a California non- profit mutual benefit corporation By: Its: Appr ed as to form an content thixlav day of , 1996 City of San Juan Capistrano 068/022154-0010/2131149.6 a10/01/96 —15— 0 • STATE OF CALIFORNIA ss. COUNTY OF ORANGE On October 15, 1996 , before me, Jacklyn C. Watson, Notary Public personally appeared T_ C_ Gian„Tiaa personally known to me (or proved to me on the basis of satisfac- tory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. Notary Plwlic ff [SEAL] STATE OF CALIFORNIA SS. COUNTY OF ORANGE JACKLYN C. WATSON i GOMM. #1083983 3 NOTARY PUBLIC • CAUFORNIA ORANOECOUNTY r , My CamMs M EXOU January 21, 2000 j On October 15, 1996 , before me, Jacklyn C. Watson, Notary Public personally appeared Dennis cage personally known to me (or proved to me on the basis of satisfac- tory evidence) to be the persons) whose names) 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. V Notary Vfaic - JACKLYNC. WATSON - COMM. #1083983 (SEAL] ; NOTARY PUBUc-CALIFORNIA ORANGE COUNTY E 068/022154-0010/1131149.6 a10/01/96 -16- '---------------1�,,2000 21 I a STATE OF CALIFORNIA ss. COUNTY OF ✓�2RNCi ) On (�icerrbva 3[996 ,before me, �h �4/To �`�ty/C personally appeared --_ i,� v a ii ttfr-rte i personally known to me (ate--preveate c- ,__, _.___nce) to be the person(s-Y whose namel-s) is/awe subscribed to the within instrument and acknowledged to me that he/she -/t ey executed the same in his/herit h- r authorized capacity(4-es) , and that by his/h--/ it signature (&-)- on the instrument the personFsj or the entity upon behalf of which the personfigl acted, executed the instrument. Witness my hand and official seal. 068/022154001012131149.8 a111011% —17— 0 EXHIBIT "A" LEGAL DESCRIPTION OF THE PROPERTY That certain real property located in the City of San Juan Capistrano, County of Orange, State of California, described as follows: Lots 1 through 79, inclusive, and Lots A through G, inclusive, of Tract No. 14398 as shown on a map recorded in Book 738, Pages 1 through 7, inclusive, of Maps in the Office of the County Recorder of said County. EXHIBIT "A" TO AGREEMENT ESTABLISHING SLOPE DISPLACEMENT WARRANTY PROGRAM 068/022154-0010/2131149.8 all/01/96 0 EXHIBIT "B" • The defined terms set forth below shall have the definitions given to them herein: "Amending Resolution" shall have the definition given to such term in Paragraph C of the Recitals to the Agreement. "Association" shall mean Ocean Pointe Homeowners' Association, a California non-profit mutual benefit corporation. "Association's Restricted Assessment Fund" shall have the meaning given to it in Section 6.1 of the Agreement. "Association's Restricted Assessment Account" shall have the meaning given to it in Section 6.1 of the Agreement. "Basic Ordinance" shall have the meaning given to such term in Paragraph B of the Recital to the Agreement. "Board" shall mean the Board of Directors of the Association. "Catastrophic Slope Displacement" shall mean displacement of a manufactured or natural Covered Slope at a depth greater than three (3) feet with a vertical movement of one (1) foot or more, regardless of cause except for Excluded Coverage Items. "City" means the City of San Juan Capistrano, California. "Claims Adjuster" shall have the meaning given to such term in Section 3 of the Agreement. "Covered Repairs" shall mean all repairs to correct any damage to individual lots and structures or common/public improvements located within the Covered Slopes of the Project and arising due to a specified type of Slope Displacement occurrence, but specifically excluding the Excluded Coverage Items. "Covered Slopes" means the following slopes within the Project: (a) All designated common area landscape slopes to be maintained by the Association pursuant to the provisions of the Master Declaration; (b) All manufactured slopes having a minimum height of five (5) feet in vertical height; EXHIBIT "B" TO AGREEMENT ESTABLISHING SLOPE DISPLACEMENT WARRANTY PROGRAM 149.8 all/01/96 (c) All natural slopes within two hundred (200) feet of individual lots or all natural slopes within one hundred fifty (150) feet of individual lots to the extent that such natural slopes are within a fuel modification zone within the Project. "Developer" means San Juan Villas, L.P., a California limited partnership. "Developer Liability Period" shall mean the period commencing with completion and acceptance by the City of rough grading for the Project and expiring on the last to occur of (a) expiration of the first three (3) years after completion and acceptance of rough grading of those portions of the Property to be rough graded in connection with the development of the Project, or (b) the close of escrow for the sale of the last unsold residential lot within the Project. "Developer's Security Amount" shall have the meaning given to it in Section 5.1 of this Agreement. "Developer's Security" and "Developer's Security Bond" shall have the meanings given to such terms ,Section 5.1 of this Agreement. "Developer's Security Fund" shall have the meaning given to it in Section 5.1 of this Agreement. "Developer's Security Fund Account" shall have the meaning given to it in Section 5.1 of this Agreement. "DRE" shall have the meaning given to it in Section 2.6 of this Agreement. "Excluded Coverage Items" means surface cracking and fissures, including without limitation desiccation cracks or erosion, defined as the wearing away of the surface of the slope, as opposed to movement of the slope, resulting from the force of water, wind, persons or vehicles moving over the surface, unless erosion ultimately results in a Slope Displacement, as defined herein, (ii) displacement of soil caused solely by earthquake or seismic activity of significant intensity. "GRAD" shall mean a Geologic Hazard Abatement District established in accordance with the provisions of Public Resources Code Section 26500, et seq. "Original Resolution" shall have the meaning given to it in Paragraph C of the Recitals to this Agreement. "Project" shall have the meaning given to it in Paragraph A of the Recitals to this Agreement. -2- 0 (022154-00102131149.8 z111011% 0 0 "Property" means that certain real property more particularly described on Exhibit "A" attached hereto, which real property is the subject of Vesting Tentative Map 14398. "Slope Displacement" means Surficial Slope Displacement (as defined herein) and Catastrophic Slope Displacement (as defined herein), but excludes the Excluded Coverage Items and all other slope and soils displacements not specifically included within the definitions of Surficial Slope Displacement and/or Catastrophic Slope Displacement. "Slope Displacement Warranty Period" has the meaning given to it in Paragraph 2.1 of this Agreement. "Slope Displacement Warranty Program" shall have the meaning given to it in Paragraph C of the Recitals and in Paragraph 2.1 of this Agreement. "Sum" shall have the meaning given to such term in Section 5.5.1 of this Agreement. "Surficial Slope Displacement" shall mean a displacement of a manufactured Slope which qualifies as a Covered Slope at a depth of up to three (3) feet with a vertical movement of one (1) foot or more, regardless of cause excepting Excluded Coverage Items. "System" shall have the meaning given to such term in Section 7.16 of this Agreement. -3- Oa/022154-W1012131149.9 a11/011% SEP -27-2004 16:19 WICORDE DEVELOPME14T is 9498330477 P.01i01 CONCORDE DEVELOPMENT 19700 FAIRCHILD RD. SUITE 120. IRVINE, CA 92612 (949) 033-1100 FAX (949) 833-0477 September 27, 2004 Mr. George Gustave TSG independent Property Management 27129 Calle Arroyo Suite 1802 San Juan Capistrano, CA 92675 RE: Ocean Pointe -Slope Displacement Bond Track 9 14398 Dear George: At the beginning of development of the Ocean Pointe project, we as the developer were required by the City to put up a Slope Displacement Bond until the Homeowners Warranty Cash reserve reached in excess of $84,000.00. When I spoke with you on September 23rd, you were under the impression that the Homeowners Warranty Cash reserve was indeed in excess of $84,000.00. I would hereby like to formally request in writing for the Homeowners Association Board to release us (as Developer) from the bond so that we may request our deposit back. If you have any questions or require further assistance with a letter, please feel free to call me at 949-833-1100 ext. 24. Thank you for your assistance in is matter. Sincerely, Deanna Harve Concorde Development Cc: Dennis Gage Ocean Pointe Homeowners Association does hereby release San Juan Villas L.P. from the Slope Displace ent Bond, due to Ocean Pointe Homeowners Association has reached it's minimum of $84,00 c .geserve Ocean Pointe Homeowners Association Gylle� ( /(Sa�f�s Print Name & Title ATTACHMENT 32400 PASEO ADEI—ANTO SAN JUAN CAPISTRANO, CA 92675 (949) 493-1171 (949) 493-1053 FAx www, sanjuancaplstrano. org March 17, 2005 1] I • ESIRIX[RFPO RPifO ffi ARIISXfO 1961 1776 NOTIFICATION OF ACTION BY THE CITY COUNCIL OF SAN JUAN CAPISTRANO MEMBERS OF THE CITY COUNCIL SAM ALLEVATO DIANE BATHGATE MATT HART JOE SOTO DAVID M. SWERDLIN On March 15, 2005 the City Council of San Juan Capistrano met regarding: "Consideration of Release of the Surety Associated with the Slope Displacement Warranty Program Agreement (Tentative Tract 14398) (Concorde Development/San Juan Villas, L.P.)" Item No. D4. The following action was taken at the meeting: Performane bond associated with the agreement establishing slope displacement warranty program for Tentative Tract 14398, with Concorde Development/San Juan Villas, L.P., authorized for release If you have any questions regarding this action, please contact Sam Shoucair, Senior Enqineer at.443-6365 for more detailed information. City Enclosed: Cc: Concorde Development*; Ocean Point HOA; Nasser Abbaszadeh, Engineer & Building Director; Sam Shoucair, Senior Engineer San Juan Capistrano: Preserving the Past to Enhance the Future 0 Pooled on 1e1di d peter E 32400 PASEO ADELANTO SAN JUAN CAPISTRANO, CA 92675 (949) 493-1171 (949) 493-1053 FAX www.sanjuancapstrano. org 0 MEMBERS OF THE CITY COUNCIL NOTIFICATION OF MEETIN-G OF POTENTIAL INTEREST OF THE SAN JUAN CAPISTRANO CITY COUNCIL SAM ALLEVATO DIANE BATHGATE VJYATT HART JOE SOTO DAVID M. SWEBDLIN The City Council of San Juan Capistrano will meet at 7:00 p.m. on March 15, 2005 in the City Council Chamber in City Hall, to consider: "Consideration of Release of the Surety Associated with the Slope Displacement Warranty Program Agreement (Tentative Tract 14398) (Concorde Development/San Juan Villas, L.P.)" — Item No. D4. If you have specific thoughts or concerns regarding this item, you are encouraged to participate in this decision making process. You can communicate with the City Council through correspondence addressed to the Council and/or by attending the meeting and speaking to the Council during the public meeting. Correspondence related to this item must be received at City Hall by 5:00 p.m. on Monday, March 14, 2005 to allow time for the Council to consider its content. If you would like to speak at the meeting, please complete a blue 'Request to Speak" form found inside the entrance to the Council Chamber. This form is turned in at the staff table, just in front of the Council dais. You will be called to speak by the Mayor when the item is considered. You have received this notice at the request of the City staff member Sam Shoucair, Senior Engineer. You may contact that staff member at (949) 443-6355 with any questions. The agenda, including agenda reports, is available to you on our web site: www.sanivancapistrano.org. If you would like to subscribe to receive a notice when agendas are posted to the web site, please make that request by sending an e-mail to: council-apendasasanivancapistrano.org. Meg Monahan, CMC City Clerk cc: Concorde Development*; Ocean Point HOA; Nasser Abbaszadeh, Engineer & Building Director; Sam Shoucair, Senior Engineer * Received staff report San Juan Capistrano: Preserving the Past to Enhance the Future 0 Pl.nIed o, 1.1d.d Daae, r AGENDAITEM TO: FROM: SUBJECT: December 3, 1996 George Scarborough, City Manager William M. Huber, Director of Engineering & Building Consideration of Agreement for Surficial Soils Remediation Program - Tract 14398, Concorde Development (San Juan Villas, L.P.) RECOMMENDATION It is recommended that the City Council approve the "Agreement Establishing Slope Displacement Warranty Program" for Tract 14398, Concorde Development (San Juan Villas, L.P.). SITUATION A. Summary and Recommendation Tract 14398, Concorde Development, is required to establish by agreement a Surficial Soils Remediation Program as provided by City Municipal Code Section 9-10. The agreement provided in Attachment 1 provides the mechanism to establish the program. The agreement has been reviewed and found to be consistent with the provisions of the Code. Staff is, therefore, recommending its approval. B. Background History On August 15, 1995, City Council adopted Ordinance 768 adding Municipal Code Section 9, Chapter 10, "Soils Subsidence Remediation Program". This program consists of two parts: 1) Surficial Soils Displacement Element and 2) Catastrophic Soils Displacement Element. On February 21, 1995, City Council held a public hearing for Vesting Tentative Tract Map 14398 (Concorde) to consider their request for relief from conditions for soils subsidence insurance. Attachment 2 provides a copy of the staff report approving resolution and Council minutes regarding the issues and discussion at the February 21 meeting. rOR CITY C0U.4CIL AC D6 0 0 AGENDA ITEM -2- December 3, 1996 Three issues were discussed and conditioned during that meeting. They are as follows: 1. ane Stability During Construction Adjacent to the Connemara Development. Residents in Connemara were concerned with potential slope displacement adjacent to their homes during construction of the canyon grading operations. Conditions were levied on the developer for a construction mitigation program which would include: a. Continuous monitoring during the construction period; b. A $5,000,000 surety for any damages resulting from the grading operations; c. A preconstruction survey, where possible, of all existing homes as a benchmark to determine whether any movement occurs. The conditions have been met and the work completed in an acceptable manner. 2. Soils Subsidence Warranty Program. The developer is conditioned to provide a soils subsidence warranty program. The program covers surficial slope displacement. Surficial slope displacement is generally minor displacement of shallow depth and can be remedied at a relatively low cost. The program is targeted to benefit the new homeowners in the subdivision and covers only those slopes within the tract boundaries. 3. Geologic Hazard Abatement District (GHAD). A GHAD is to be formed per the conditions for all lots within the subdivision. At the Council Meeting of February 21, 1995, a resident questioned whether the district would encompass areas outside the district. The resident was told that the district would be for the new subdivision homes only. (Refer to Page 6, Item (4) of the February 21, 1995 Council Minutes.) The GRAD is in the process of being formed concurrent with the Slope Warranty Program. This staff report deals with the first element, surficial soils displacement. The Surficial Soils Displacement Element is directed at minor slope displacement, defined by the Municipal Code as not exceeding three feet in depth. The program provides for the developer to deposit an initial amount of funds based on the slope areas maintained by the HOA. As residents move into the development, a portion of their monthly fees would be put into this fund. Once the residents' deposits reached 75% or more of the developer's initial deposit, then that deposit would be released back to the developer. 0 0 AGENDA ITEM -3- December 3, 1996 Concorde Agreement The Agreement (Attachment 1) has been drafted and reviewed by staff and City Attorney and found to be consistent with the Municipal Code requirements. Important elements provided in the agreement include: 1) Developer's liability for any slope failure within the first three-year period. 2) Surficial slope damages could be paid for using the Geologic Hazard Abatement District if the costs exceed the amount in the Surficial Slope Damage Program fund. 3) Return of developer's funds consistent with the requirements of the San Juan Municipal Code. 4) Homeowner assessments to special fund. The City Attorney has provided a detailed review of this Agreement and found it to be consistent with the City's Municipal Code requirements and other applicable provisions of law. Staff believes the Agreement is, therefore, now ready for acceptance and approval by the City Council. FINANCIAL CONSIDERATIONS There is no cost impact to the City's General Fund. PUBLIC NOTIFICATION Mr. Dennis Gage, Concorde Development ALTERNATE ACTIONS Approve the "Agreement Establishing Slope Displacement Warranty Program" for Tract 14398, Concorde Development (San Juan Villas, L.P.). Do not approve Agreement. Return to staff for additional information. AGENDA ITEM -4- December 3, 1996 RECOMMENDATION It is recommended that the City Council approve the "Agreement Establishing Slope Displacement Warranty Program" for Tract 14398, Concorde Development (San Juan Villas, L.P.). Respectfully submitted, William M. Huber Director of Engineering & Building WMH:ch Attachment: 1. Agreement Establishing Slope Displacement Warranty Program 2. Staff Report Dated February 21, 1995, Regarding Tract Map 14398 STAFF REPORT DATED FEBRUARY 21, 19955 REGARDING TRACT MAP 14398 ATTACHMENT 2 �) • t. AGENDA ITEM February 21, 1995 TO: George Scarborough, City Manager FROM: Thomas Tomlinson, Planni to SUBJECT: Vesting Tentative Tract Map 14398 Concorde) Request for relief from Soil Subsidence Insuranc s - an RECOMMENDATION By Motion, Adopt the Attached Draft Resolution to Rescind Conditions H-1 and H-3 and Modify Conditions A-6, A-14, C-19 and H-2 of City Council Resolution 93-4-6-5 to Require a Soils Subsidence Warranty Program, Establish a Hazard Abatement District, Require $5,000,000 Surety for Adjacent Homes During Deep Canyon Grading, Require Continuous Monitoring for Slope Slippage, and to Require Continuous Deep Canyon Grading for Vesting Tentative Tract Map 14398 (Concorde). SITUATION A. Applicant Concorde Development 19752 MacArthur Blvd., Suite 240 Irvine, CA 92715 B. Summary and Recommendation The applicant has requested Council reconsideration of conditions required on Vesting Tentative Tract Map 14398, a 79 -lot residential subdivision located on 99 acres of land at the northerly terminus of Camino Las Ramblas which was approved on April 6, 1993. The specific conditions requested for reconsideration set standards for the amount, term and carrier for soil subsidence insurance with the objective of protecting the City, future subdivision lot owners and adjacent Connemara property owners from liability in the event of a catastropic slope failure. This item was agendized and continued several times in the past six months and most recently tabled indefinitely on October 18, 1994 to allow the applicant to conduct a construction -level geotechnical analysis to determine the probability of a slope failure FOR CrrY COUNCIL AGEND#t `/ of the Connemara slope. In addition, the complexity of the insurance industry required specialized knowledge to adequately analyze the applicant's proposal in relation to both City interests and fairness to the applicant. Therefore, staff has consulted with the City's Home Warranty adjuster (Day & Martinez, Inc.) who verified applicant's contention that the required insurance was not obtainable (Attachment 2). The construction -level geotechnical analysis included soil borings and was verified by a City geotechnical consultant (Attachment 3). The analysis establishes the current slope stability of the Connemara slope and the ability to accomplish the proposed grading within industry safety standards. The City's geotechnical consultant has stated that the overall construction grading will further reduce the risk from slope failure from that of the existing natural condition. He also concurs that the greatest probability of a failure is limited to the canyon clean-out of unconsolidated material when an over - steepened slope is created. It is during this part of the grading operation that it is recommended that a surety mechanism in the amount of $5,000,000 be in place to insure against any damage to homes located above the cut in Connemara. It should be noted that the grading contractor will be precluded from opening a cut the full length below the homes but be required to open only a small segment at any time. It is estimated that this remedial work will take approximately one to two weeks. In response to this new information, staff recommends modifications to the present conditions using a three -fold approach to address the potential costs associated with a soils failure during and after project completion. First, the developer will be required to establish a soils subsidence warranty program with sufficient front-end funds to repair minor surficial soil slumps. Applicable provisions would be incorporated into the Homeowners Association CC&R's to insure the integrity and maintenance of the fund in years subsequent to an initial ten-year period guaranteed by developer funding. The second layer of addressing the issue of a soils failure is the creation of a Geological Hazard Abatement District. Such a district, if activated, would provide a source of immediate funding to correct a catastropic soils failure. The third area is a program to assure continuous safety during grading through monitoring with geotechnical instruments to detect slope movement in time to take preventative action and bonding to insure against damage to existing homes and to assure a continuous operation once grading begins. In conclusion, staff recommends that the City Council revise conditions related to Construction Mitigation and Soils Warranty Programs to improve specificity and rescind conditions requiring special slope stability insurance. C. Staff Analvsis 1. Insurance Availability. The present conditions of approval for insurance coverage require comprehensive general liability, including soil subsidence, in an amount not less than one million dollars per lot and per occurrence. In addition, the approved conditions require the insurer to provide California insurance to remain in force for 20 years (Attachment 4). At the time the • • AGENDA ITEM -3- February 21, 1995 condition was drafted, the rationale for requiring one million dollars per lot was based on an estimate of the cost to replace a typical house in the event of a catastrophic slope failure. The intent of the requirement for each lot of the subdivision to have one million dollars of insurance was to be sure that a catastrophic failure(s) involving multiple residences would not exceed limits of coverage. Another aspect of concern which the condition was designed to address was potential damage to adjacent residences in the Connemara subdivision. Several lots of that project overlook the Concorde site and are supported by a slope with the toe extending into the site. However, under the present language- of the condition, damage due to construction activities or improvements related to the subdivision may not be covered. The applicant has reported that the required level of insurance is not available and staff has verified that through the City's insurance consultant who noted that soils subsidence insurance at any level has become difficult to obtain in southern California because of the recent Northridge earthquake and the general state of the insurance market (Attachments 2 and 3). Currently it is very difficult to get general homeowners insurance due to the number of insurance companies that have suspended writing new policies. 2. Geological Hazard Abatement District. The level of security that has been traditionally established for slope displacement warranty programs is appropriate to repair only surficial slumps which usually do not involve destruction of houses or destabilization of building pads. Recent hillside subdivision approvals, including Concorde, have included a condition requiring the developer to form a Geological Hazard Abatement District which would be activated in the event of a catastrophic soils fadlure that would be beyond the funding capacity of a slope displacement warranty program. The District would be enabled to finance repairs by selling bonds that would become the obligation of all subdivision lot owners to retire. This mechanism will provide for the long- term assurance that lots within the subdivision can be rebuilt immediately, prior to litigation being completed to determine cause and liability. 3. Impact to Adjacent Residents. Adequacy of insurance for slope failures was a particular concern of adjacent property owners in the Connemara subdivision. Several Connemara residences are situated on lots supported by a slope with a toe that extends into the area that would be graded for the Concorde project. Residents are concerned that grading, which involves removal of some existing soil and replacement with compacted fill, could jeopardize the stability of their homes. Several letters expressing this concern have been received in response to the previous public hearing notice prepared for this item (Attachment 7). AGENDA ITEM -4- February 21, 1995 In order to address the concerns of the ajacent residents to this issue, a construction level geotechnical study was conducted on the site which included soil borings to a sufficient depth to determine the structure of soils underlying the Connemara slope. Four borings were done to establish the materials and angle of repose of bedding planes to predict slope failure potential. The City's Geotechnical Consultant reviewed all information and confirmed that the methods proposed and the calculations used to support conclusions and recommendations are within acceptable "geotechnical standards of care and practice", and recommended that the City accept and approve the slope stability evaluation. According to the City consultant, during the proposed construction, removal of unsuitable earth materials in the canyon bottom will create a factor of safety that is less than that of the existing condition, but still acceptable from a geotechnical "standard of care" or "standard of practice" perspective. The actual increase in level of risk to the upslope homeowners is very low, and the recommended construction techniques will minimize both the duratrion of exposure and the area of removals. Ultimately, the proposed construction will result in a slope which has a much higher factor of safety than the existing condition. The proposed canyon fill will act to buttress a currently unsupported natural slope. the existing unsupported slope is approximately 150 feet high which will be reduced to about 70 feet after construction. Lowering the overall slope height by placing canyon fill is one of the simplest and most effective means of increasing slope stability. As this agenda item was being prepared a -report was received from the geotechnical consultant advising Connemara homeowners (Attachment 8). The report raises technical questions about the sufficiency of data used for the geotechnical study. The report has been referred to the City's geotechnical consultant who will be available to respond during Council consideration of this item. 4. Construction Mitigation (Provisions for Continuous Monitoring and Grading Operations) - As mentioned previously, potential risk to adjacent residences could occur during the canyon clean-out of unconsolidated materials when the bottom is undergoing remedial grading operations and an over - steepened slope is temporarily created. Because the grading technique involved requires sequential removal and replacement of sections of the slope support soils, minimizing the amount of exposure, it is recommended that the revised tentative map conditions require a $5,000,000 surety be secured against damage to existing homes during this portion of the overall grading operation. In addition it is important that, once started, the process continues to conclusion. The following revision of condition C-19 would ensure that bonding 9 0 AGENDA ITEM -5- February 21, 1995 requirements specifically guarantee against property damage to existing homes and continuity of that aspect of grading. C-19. Submit required securities or bonds to guarantee project completion including construction of all improvements approved and required to complete the subdivision per City of San Juan Capistrano standards and developer agreements per the Engineer's estimate. Securities or bonds shall specifically require grading at the base of the northern slope of Deep Canyon which affect slope stability to be completed in a continuous operation. As additional measures of protection for adjacent homeowners are proposals for continuous monitoring for slope slippage during grading and a pre -construction survey of the condition of homes so that any damage that occurs as a result of grading will be documented. Survey instruments (slope inclinometers or tilt meters) can be established at various locations and monitored to detect any slope movement in time to take preventative action. The following revision to Condition A-6 would establish such a requirement. A-6. Construction Mitigation Program - The applicant shall prepare and adhere to a construction mitigation program. The construction mitigation program shall be approved by the Director of Planning and Director of Engineering and Building prior to issuance of grading permits and contain the following controls: a. Grading - Continuous monitoring with slope inclinometers or tilt meters for slope slippage on the north slope of Deep Canyon. b. Surety for damage to existing homes - A minimum of $5,000,000 surety instrument approved by the City Attorney and Building Official shall be in place during grading operations for Deep Canyon clean-out of unconsolidated materials and until all over - steepened slopes created by that operation are eliminated. A detailed construction phasing and timing plan shall be included and made a part of this program. C. Pre -construction Survey - Permission from homeowners on Dongarvin Lane and the east side of Kinkerry Lane shall be solicited to conduct a pre -construction survey. If permission is obtained, floor level surveys and crack mapping shall be documented for comparison to conditions after completion of grading. 0 AGENDA ITEM -6- February 21, 1995 5. Conclusion. The lack of availability of soil subsidence insurance on the market renders the current conditions on the Concorde subdivision impractical. In addition, a construction -level geotechnical analysis has determined the structural integrity of the existing supporting slope below the Connemara homes and the lack of slope failure potential during the proposed grading. Staff recommends that the City Council approve the following approach to provide adequate and appropriate methods for the correction of any subsidence that occurs or is created by the subdivision construction and improvements. The recommended approach includes: a. Establishment of a Soils Subsidence Warranty Program with an initial deposit of twenty cents per square foot of manufactured or natural slope greater than 3:1 and four feet in height for a maximum ten year period, similar to that developed for other subdivisions in the City. This program would be created by applicable provisions in the CC&R's controlled by a Homeowner's Association. Association members would be required to deposit monthly funds into the restricted account, with the developer having the ability to recover this initial deposit at the end of the ten year period (Condition A-14). b. Establishment of a Hazard Abatement District that encompasses all lots within the subject subdivision (Tract 14389). This condition has already been included in the original action of the Council as Condition C-11. c. Modification to condition A-6 to include language for continuous monitoring for slope slippage on the north slope of Deep Canyon and to establish a $5,000,000 surety to be secured against damage to existing homes during Deep Canyon clean-out phase of grading. Also included is a requirement for a pre -construction survey of existing homes for documentation of any damages that might occur. d. Modification to condition C-19 requiring specific language be incorporated into the subdivision and developer standard agreement to require grading at the base of Deep Canyon to be completed in a continuous operation. 0 0 AGENDA ITEM -7- February 21, 1995 COMMISSIONBOARD REVIEW AND RECOMMENDATIONS None FINANCIAL CONSIDERATIONS No unique financial considerations have been identified. As is the case in California in general, catastrophic soils failures will not be fully covered by a soil subsidence warranty program. In the event of a catastrophic soils failure, a Geologic Hazard Abatement District would be activated to finance repairs through bond sales that would become the obligation of project lot owners to retire. PUBLIC NOTIFICATION The public hearing was noticed and advertised in the Capistrano Valley News consistent with Council Policy and the public notification requirements of State Law. In addition the property was posted and notices were sent to all residents within 300 feet and the Connemara, Alto Capistrano, and Meredith Canyon HOA's. A copy of this agenda report was provided to the applicant. ALTERNATIVE ACTIONS Revise the conditions of tentative tract 14398 to establish soil subsidence program standards, construction mitigation standards and rescind special insurance requirements. 2. Revise the conditions of tentative tract 14398 to establish soil subsidence program standards with modifications. 3. Continue consideration of this item and direct staff to return with additional information on specific issues. • RESOLUTION NO. 95-y5 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN 1UAN CAPISTRANO, CALIFORNIA, APPROVING VESTING TENTATIVE TRACT MAP 14398, HILLSIDE MANAGEMENT REVIEW 91-7, RIDGELIKE EXCEPTION 93-1 AND GROWTH MANAGEMENT REVIEW 91-1 (CONCORDE DEVELOPMENT) WHEREAS, the applicant, Concorde Development, t9752 MacArthur Boulevard, Suite 240, Irvine. California 91714, submitted Tentative Tract klap 14399. that proposed to subdivide approximately 99 acres of land into 87 residential :ors and three open space lou located at the northerly terminus of Camino Las Ramolas and described as Assessor's Parcel Numpers iii4-9$}-�r,6�j-;}t.Qt, and 675-321-41; and, �� ;tit-ebi•3S WHEREAS, the City's Environmental Review Board determined that the proposed protect may have a significant effect on the environment and has accordingly required preparation of a Subsequent Environmental Impact Report and a Mitigation Monitoring Program and has otherwise carried out all requirements of the California Environmental Quality Act; and, WHEREAS, the City's Cultural Heritage Commission, Parks and Recreation Commission, Equestrian and Recreational Trails Commission and Traffic and Transportation Commission have reviewed the proposed project and forwarded recommendations of approval; and, WHEREAS, the Planning Commission held duly -noticed public hearings on December 8, 1992, January 12, 1993, and February 9, 1993; and, WHEREAS, the Planning Commission, during the course of public hearings identified a subdivision design alternative that is superior to the originally -submitted proposed project and amended the Draft Environmental Impact Report to include the design alternative; and, WHEREAS, on February 24, 1993, the applicant submitted a revised plan that was a variation to the design alternative recommended by the Planning Commission for 79 residential lots an approximately 36 acres white retaining approximately 63 acres as permanent open spacelhabitat area; and, WHEREAS, the City Council considered both the applicant's alternative and Ptartrring Commission recommendation, and referred the applicant's plan back to the Planning Commission for review and recommendations; and, WHEREAS, the Planning Commission conducted a duly -noticed public hearing on March 23, 1993, to receive and consider public testimony on the revised design; and, WHEREAS, the City Council held a duly -noticed public hewing on March 2, 1993, which was continued to April 6, 1993. ATTACHMENT 4 NOW, T•REFORE, BE IT RESOLVED, by tmCity Counctt of the C,ty of San Juan Capistrano as follows, I. The City Council approves vesting Tentative Tract Map +398 :i subdivide approximately 99 acres into 79 residential lots and three open space lou cased upon the fact that the proposed subdivision, together with the provisions of its aesign and improvements, is consistent with the General Plan of the City because it accompusnes the following policy and criteria of the Community Design Element of the General Plan (pp. 15L -i56): •i. Policy - Promote Conservation of the natural envirormert, including riegeiine preservation. The proposed subdivision design would preserve tr,e General Plan Major Ridgeline on the property in its entirety. B. Criteria - 5ensitive treatment of the natural topography .r.c:ucirg ridgelines. Alt of the successive spur ridges on the property would be preserved by :ne proposed subdivision design. C. Criteria - Preservation of natural topographic features. The proposed subdivision design would preserve approximately 63 of 99 acres of natural topographic features. 2. vesting Tentative Tract Map 14398 is approved with the following conditions: A. Planning Conditions 1. Ex "ration - In accordance with the State Subdivision Map Act, the tentative map shall expire 24 months from the date of tentative map approval by the City Council. 2. Gradin - Prior to approval of a final Map, a grading plan shall be reviewed and approved by the Planning Commission and City Council, which snail not encroach into the General Plan -designated ridgeline, nor shill any structure be located within 100 feet of the General Plan ridgdine. Multiple cross-sections snail establish that silhouetting of structures shall not occur above the ridgeline. Contour grading shall be used in alL manufactured slope areas exceeding 20 vertical feet and downdrains shall be placed at angles to the slope wherever passible and earthtone-colored &unite shall be used for all concrete drainage swales. Native topsoil shall be stockpiled for reapplication to manufactured slopes to promote re-establishment of native habitat. The grading plan shall identify phasing and stockpiling if applicable. 3. Housin ortunitie Pro am - The applicant shall provide a minimum 10 percent of finished lou or participation in this program. This represents the project's fair sham allocation for satisfying the regional housing needs as identified by the City's Housing Element. The distribution of these designated too shall not be concentrated in any one sector, but integrated into the overall project so as to maintain diversity of residents. a. Owner -occupied - 1. Developer may elect to construct residences on Lots and offer designated units under Section 8 new construction. -2- 2. Developer may elect to construct residences :- tots and sell units to public agency �hicn subsidizes first resale and controls sudsecuent resales. b. Program -Noprovai - The developer shall submit a proposed program consistent with tr.e provisions of this condition to be processed prior :o or concurrent a th :ne final map. As an alternative to the provisions provided above, :re developer may contribute an ,n -lieu fee of $2,000/unit for all protect units co a housing trust fund created by the City's non-profit housing corporation for assisting the creat,on of very low, law, and moderate income housing opportunities within the City. 4. Dedications a. Open Space Easement Development and Rights Dedication - An open space easement and ail development rights on all portions of the site not approved for residential lots, including all of Lot #6 located above the 491 -foot contour elevation, public improvements, fuel modification zones or manufactured slopes shall be dedicated to the City., t.ses shall be limited to natural open space with no structures of any kind permitted. Ail property thus restricted, with the exception of Lot 116, shall be retained under Homeowner Association ownership. b. Prior to final map, revisions shall be made to include: 1. Identification of lettered lots, dedications and General Plan ridgeline, including 200 -foot ridgeline protection zone. 2. The configuration of Lot N6 revised to exclude the General Plan rtdgeline and 200 -foot rtdgeline protection zone. 3. Street, sewer and storm drain easements throughout the project as required by the City Engineer. 4. Equestrian facilities easements as required by the City Engineer. S. Access easements for maintenance of drainage facilities and fuel modification zones within the homeowners association jurisdiction as required by the City Engineer. C. Conveyance of dedicated property, referenced in 4a above, to the Homeowner Association strait not occur until all required improvements including landscaping have been accepted by the City. 3. CC&Rs - The applicant shall submit a set of Conditions, Covenants and Restrictions�he project. Said CC&Rs shall be approved by the Planning Commission prior to approval of a final map. The CC&Rs shall be recorded in conjunction with the final map and shall include at a minimums 52 i 0 a. Provision for maintenance of common open space, on- site drainage facilities, project entries, and manufactured slopes by the Homeowners Association after conveyance from developer. b. Criteria for maintenance of private drainage facilites, landscaping of manufactured and natural slopes and fuel modification zones within ;ne project by the Homeowners ,association. C. Prohibition of building construction or ornamental landscaping within the drainage facility/fuel modification areas. d. Notification to lot owners that :his subdtvtsion ;s surrounded by cndeveloped natural open space for which no maintenance, improvements or irrigation is planned and for which public access is prohibited in accordance with mitigation Measure 9. e. Prohibition of radio or television antennae projecting above any roof eaves per Section 9-3.609 of the Municipal Code. f. A stipulation that all homes built within the project shall incorporate use of low -flow plumbing fixtures. S. Standards to define colors/materials to blend buildings with the landscape, limit the mass of structures and require designs to incorporate varied setbacks and varied heights for portions of buildings. h. A stipulation that CC&R provisions shall not be altered without prior review by the Planning Commission and approval of the City Council. 6. Construction Mitigation Pro am - The applicant shall prepare and adhere to a construction mitigation program. a construction mitigation program shall be approved by the Director of Planning and Director of Engineering and Building prior to issuance of grading permits and contain the following controls., a. Grading - Movement on and off the site of heavy earth- moving equipment. - Location of equipment storage and service areas and limits of fours of operation. Daily access to the site by workers including hours of work* limits on noise and dust and soil import. - Compliance with approved precise grading plan. - Compliance with environmental mitigation measures 23-34 and 3E-0. -4- • b. Enforcement • - The Planntrig Director may modify :r.e construction mitigation program standards if on-site observations indicate teat construction activities aro creating a nuisance to adjacent residential property. - The City shall retain and the applicant snail pay for :ne cost of acquiring a pro ect enforcement officer to ensure compliance with the construction mitigation program. - If it is determined that the ceve:ooer :s .n violation of the approved construction mitigation program, the Planning 2xecwr .s authorized to shut down the project by reason of said violation. 7. Equestrian Staxinit Area - Prior to approval of a final mate. the applicant shall design an equestrian staging area for review and recommendation oy the Equestrian and Recreational Trails Commission and review and approval by the Planning Commission concurrently with grading plans as required in A(2) above. Prior to City certification of rough grading, the applicant shall install the equestrian staging area. 8. Final Landscape Plans - Prior to approval of a final map, final landscape plans including slope landscaping and erosion control, irrigation, street trees, tree removal, equestrian facilities and screen landscaping of trees on the north side of lots 14-20 and 26-29 shall be approved by the Planning Commission. Landscape plans shall include a vegetation suitability and soil fertility analysis which responds to the boron and salt content of the soil and necessary remedial measures relative to providing adequate slope stability and hydro -base suitable for planting and erosion control. 9. Fuel .Modification - A fuel modification plan and program shall be submitted in conjunction with the final landscape plats of condition 8 above in accordance with Section 9-3.628 of the Municipal Code and mitigation measure 4. 10. Landscape Installation - Landscaping shall be installed by the applicant as followst A. Installation of erosion -control landscaping and irrigation for all manufactured slopes shall be approved by the Director of Engineering and Building and installed immediately after City certification of rough grading. Conveyance of dedicated property as referred to in Planning Condition A.4.c shall not occur until erosion control landscaping achieves 90% coverage as approved by the Director of engineering and building. b. installation of street trees and all no"rosion control landscaping and irrigation shall be approved by the Director of Enginsering and Building prior to the first occupancy. At the same time, fuel modification zones shall be established and approved by the Director of Engineering and Building and the County Fire Marshal. All lots and pads shall be hydroseeded with California Poppy or equivalent immediately following finish grade certification. 11. Landscatle Maintenance - The applicant shall be responsible for adequately installing and maintaining all landscape and fuel modification zones until -3- such maintenance assumed by the homeowners association. The developer a, prepare, for approval by the Director of Engineering and Building prior to final —ao approval, criteria for the maintenance of manufactured slopes, natural slopes and f.ei modification zones by the homeowners association. 12. Project and Street Names - The name of the project and aii street names shall be proposed by the applicant and approved by the Director of Planning prior to approval of a final map. 13. Parks - Prior to approval of final map, the applicant srail satisfy the public parkland requirements by paying an in -lieu fee in accordance w i.n Municipal Code Section 9-4.308. 14. Soli Subsidence - The applicant shall implement a io_s subsidence and warranty program for all residential lots. The program snail be approved by the Director of Engineering and Building prior to approval of final map. 15. Environmental Review Fee - in accordance with Assematy Bill 3158, Chapter 1706 of the State Statutes, the developer is required to pay 5875.00 to the State Office of Planning and Research (plus a $23.00 processing fee to the County Clerk) for review of the Environmental impact Report by the State Department of Fish and Game. The fee must be paid at the time of filing of a Notice of Determination for the project to be considered final. 16. Environmental Miti ation Measures - All Environmental mitigation measures of Section 4 0, the itigation Monitoring Program shall be accomplished. Prior to the approval of the final map, the applicant shall be required to pay for the cost of implementing the Mitigation Monitoring Program. This may include the cost of hiring personnel to monitor the project and report to the City througnout the project development. B. Engineering and Building Conditions - General 1. The tract/parcel map shall be developed in full compliance with the State of California Subdivision Map Act and the City of San Juan Capistrano Municipal Code, except as authorized by the City Council and/or Planning Commission. The attention of the developer and his engineer is directed to Section 9-2.3 and 9-4 of the Municipal Code. 2. Submit improvement plans, prepared by a Civil Engineer, for streets per City Master Plan of Highways and Standards and City of San Juan Capistrano Municipal Code Section 9-4.103. 3. Participation in public improvements per City of San Juan Capistranot Municipal Code Section 9-4. LGXdll3). 4. Driveways, pedestrian ways, utility undergrounding, street lights, traffic signals and drainage facilities shall be located and constructed per City of San Juan Capistrano Municipal Code Section 9-4.1. 3. Sewer improvements stall be per City of San Juan Capistrano Municipal Code Section 9-4.111. -6- 9 0 6. eater system improvements shall be per City of San :-an Capistrano Municipal Code Section 9-4.109. 7. Developer snail provide a soil report pursuant to Section 9-4.504 of the Municipal Code. 8. All manufactured slopes snail be designed and constructed per Citv of San ]uan Capistrano Municipai Code Section 9-3.505 and 9-4.1 l2. All such slopes snail be 2:1 or flatter. 9. The aeveloper shall take all necessary precautions :o avo a creating any drainage problems for properties adjacent to or in the vicinity of :ne proposed development. If any such drainage problems are evident, or do occur. a shall to the responsibility of the developer to provide and implement a solution acceptable to :ne City Engineer at no cost to the City, and to submit a recorded instrument to ensure t^e future of the solution. Slopes draining common areas shall not drain across lot pads. 10. Maintain the site in a 'wet -down" Condition to the degree necessary to prevent excessive dust. Periodically remove spillage from the public right- of-way by sweeping or sprinkling. However, watering that results in mud on public streets is not permitted as a substitute for other cleaning methods. C. Prior to Final Mao Approval by City Council I. Fulfill fee requirements as set forth in San Juan Capistrano Municipal Code Section 9-2.316 prior to approval of final map. 2. Provide a trust deed form which includes identification of ail City building permit fees for approval by the Director of Engineering and Building. The approved trust deed form shall be used for all lot sales. 3. Any off-site grading will require written permission of the property owner affected. Said written notice shall be notarized and filed with the City Engineer. 4. Any connections to City storm drains from private on-site drains must be approved by the City Engineer. A recorded instrument is required for private storm drain connections to City storm drain facilities and must be filed with the City Engineer. J. The elevations shown on all plaits shall be on Orange County benchmark datum. 6. Two copies of the final map and traverse closure calculations shall be submitted to the City of San Juan Capistrano Engineering Division for checking. 7. An updated copy of the title search shall be submitted. 9. Submit a Soil Repart/Geotechnical Feasibility Study prepared by a Registered Civil Engineer or a geologist to determine the seismic safety and soils stability of all proposed grading and development within the project and preliminary -7- pavement sectlo•and substructure beddingibackfill requirements. The studv sraii precisely delineate the nature, extent, and orientation of the inactive fault identuf,eil on the property. 4. Soil Report/Geotecmmcal Feasibility Study small be reviewed by a City- employed, independent consultant financed by the applicant. The report shall be approved by the City Engineer and the Building and Safety Manager prior to approval of a final map. l0. Submit grading dans prepared by a Registered C;vd Engineer. The extent of topography on these plans small be sufficient enough to determine drainage impacts w adjacent properties. 11. The applicant shall submit to the City Engineer for review and obtain approval for the formation of a Geological Hazard Abatement District. 12. Submit improvement plans prepared by a Registered Civil Engineer that show street, storm drain, sewer and water improvements. Provide the following requirements to these plans. a. Sidewalks on both sides of all streets. No obstruction shall be allowed in any sidewalk or parkway which reduces the width to less than four feet. b. A sight distance on Camino Las Ramblas of at least 30 miles per hour for all intersecting streets. C. All driveways/knuckles designed to have the ability for vehicular turnaround (outside the standard width of Camino Las Ramblas) so as to provide forward egress onto Camino Las Ramblas. d. No cross gutters will be allowed in this development unless approved by the City Engineer. e. Sidewalks on the northerly side of Camino Las Rambias from its existing terminus to the easterly proposed tia= boundary, and on the southerly side of Camino Las Ramblas from Avenida Pescadw to the easterly proposed tract boundary, provide a concept plat for a meandering asphalt path in order to evaluate the feasibility of installation as determined by the City Engineer. f. Right-of-way width of 94 feet (plus ten feet at right turn pockets) and curb -to -curb width of 64 feet (plus ten few at right turn pockets) on Camino Las Ramblas from its present terminus to the easterly proposed tract boundary or as approved by the City Engineer. S. Streets that may serve as potential gated entries shall be designed wide enough and in accordance with Municipal Code Sections 8-13.101 et seq., to preclude denials of such improvement application in the future. Poles. h. Street lights shaU be Mission Bell fixtures an marbelite 4- • i. A maximum of 4 percent approach grade on ani streets for 166 feet from the beginning of curo returns of streets intersecting Camino Las Ramblas unless otherwise permitted by the City Engineer. L3. Submit traffic improvement plans prepared by a Registered Traffic Engineer, showing all striping and signage. These plans shall also include ire following: a. Right -turn pockets on Camino Las Rambias for a,1 intersecting streets. b. Continuous teft-turn picket on Camino Las Ramc,as from Via California to the easterly proposed tract boundary. C. "No Stopping" signs or red curo paint awng :r.e designated no stopping areas of Camino Las Ramblas. 14. Submit a deposit for design and construction of a traffic signal at Camino Las Ramblas and Via California. Level of participation shall be based on traffic generation and shall be determined by the City Engineer in conjunction with a traffic study submitted by the developer. 13. Fulfill fee requirements including Advanced Energy Fee for street lights and bonding. 16. Submit a preliminary utility design prepared by a Registered Civil Engineer prior to improvement plan approval. 17. Submit an estimate of quantity and construction cost, stamped and signed by a Civil Engineer, with the improvement plans. Said estimate shall include costs for installation of all street improvements, traffic signals, signing and striping, landscaping and irrigation, sewers and storm drains. LL Submit to the County Surveyor, a digital -graphics file of the final map prepared by a Registered Land Surveyor/Civil Engineer which shall also tie the boundary of the final map into the Horizontal Control System established by the County Surveyor, all in accordance with the Orange County Subdivision Manual, Sub -Article 18 and the Orange County Subdivision Code, Sections 7-9.930 and 7-9.337. 19. Submit required securities or bands to guarantee project completion including construction of all the improvements approved and required to complete the subdivision per City of San Juan Capistrano standards and developer agreements per the Engineer's estimate. 20. Grading plan and sewer, water, traffic signal, storm drain and street improvement plan approval must be obtained from the City Engineer. 21. Electrical, gas, telephone and cable television improvements shall meet the approval of the respective owners and the City Engineer. 22. Water improvements shall meet the approval of the Capistrano Valley Water District, the Orange County Fire Marshal and the City Engineer. -9- 0 0 23. Submit improvement plans prepared by a Registerec C.vu Engineer. 24. 'he final map off-site Improvements required to be mace �r installed by the developer shalt meet the approval of the City Engineer. 25. Approval of a tentative map does not include approvai of :re rate of grades for the streets. This rate of graces shall be approved prior to fir.ai map approval. 26. Drainage facilities where required shall be in accorcarce . kcn the Blaster Plan of Drainage and City standards and meet the approval of ;ne C. -Y, Engineer. 27. An agreement shall be executed and approves :or maintenance and liability insurance for water and utility easements on the southeast s.ce of Camino Las Ramblas. 23. Drainage facilities shall be within the right-of-way. if facilities are proposed in easements, said easements shall be placed in lettered :ots maintained by the homeowners association and will be subject to the City Engineer's approval. 29. Dedicate appropriate easements to City for emergency and public security ingress and egress purposes. 30. Sewer facilities shall be provided with necessary easements for mainline facilities. 31. The applicant shall submit to the City Engineer for review and obtain approval for a Storm Runoff Study prepared by a registered Civil Engineer showing existing and proposed facilities, hydraulic and hydrologic calculations and methods of draining on site and tributary areas without exceeding the capacity of any affected street or facility. Said study shall be consistent with the City's Master Drainage Plan in accordance with all applicable City regulations, Orange County Environmental Management Agency design criteria, and standards (Engineering). D. L. Submit a permit application and security deposit :o Engineering Division prior to any on-site or off-site work to ensure the integrity of remaining and adjacent improvements due to construction ingress/egress. 2. Submit a program to comply with the requirements of ere California Integrated Waste Management Act of 1939 to reduce construction and demolition debris through recycling. 3. Submit an appropriate storm water pollution control program related to the development`s structural and non-structural Best Management Practices in accordance with the requwements of the National Pollutant Discharge Elimination System Program and The Clean Water Act of 1990. -10- 0 0 4. Obtain an Industrial Storm Water Runoff Permit due :,) development of greater than five acres in accordance with the requirements of :-e National Pollutant Discharge Elimination System Program and the Clean Water Act 1990. S. Haul routes must be approved by the City of San _uan Capistrano Engineering Division. E. Prior to the Issuance of Certificate of occupancy 1. The applicant snail complete, to the satisfaction of :ne C.:. Engineer, all facility improvements necessary to serve the development in acc�raance with the approved plan and approved exceptions. F. Prior to Acceptance of Improvement and Release of Performance Securities 1. All street construction performed as a part of this development shall present a new and uniform appearance prior to the acceptance of the improvements oy the City. 2. Remove any existing drives and/or curb depressions that will not be used and replace with full height curb and sidewalk. 3. Construct electrical, gas, telephone and cable television improvements as shown on respective installation plans. 4. The applicant shall submit to the City Engineer for review and obtain approval for the reproducible "As Built• plans prepared by a Registered Civu Engineer of all improvement works completed and accepted. G. Water District Conditions L. The existing l2 -inch water main traversing the prosect is to be relocated to within the alignment of Camino Las Ramblas. 2. The Connemara Booster Station must be improved to support the additional demands of the protect to the specifications of the Capistrano valley Water District. H. Insurance Conditions Prior to Final Map: 1. Developer shall provide proof of soil subsidence insurance for each lot in the subdivision in an amount approved by the City Attorney and not less than one million dollars per lot, with an insurer approved to provide insurance in California, in a policy approved by the City Attorney and the Director of Engineering and Building. Such insurance shall remain in full force and effect for a period of not less than twenty (20) years. -11- 2. Developer shall defend, indemnify, and hold harmless the City and its employees, elected and appointed officials, and subordinate agencies, from any and all claims and liabilities arising out of City's approval of any entitlement granted for this project. Developer shall execute an indemnity agreement implementing this condition of approval within 20 days from the date of final approval of the protect. Failure to do so shall, at the City's option, render null and void the entitlements authorizing the developer to construct the protect. 3. Deveioper and developer's heirs, assigns, legal representatives, and successors in interest, shall maintain in full force and effect Comprehensive general liability insurance coverage, including premises liability and soil subsidence coverage, in an amount approved by the City Attorney and not less than one million dollars ($1,000,000) per occurrence, at all times during grading and construction and for a period of not less than ten years from the date of first sale of any and all lots within the subdivision. Said insurance coverage shall name the City of San Juan Capistrano as an additional insured. This condition shall run with the land and oe recorded with all conveyances of property within the subdivision. No building permit or other city permit or entitlement shall issue upon any lot within this subdivision unless the applicant shall provide proof of current insurance meeting this requirement. 3. The City Council approves Hillside Management Review 91-7 based upon the following findings: A. The protect, as conditioned, provides for the preservation of over 60 percent of natural topographic features and treats disturbed areas by means of land sculpturing so as to blend manufactured slopes into the natural topography. B. The protect, as conditioned, provides for the preservation of natural topographic features and appearances through restrictions on successive padding and terracing of building sites in hillside areas. The project, as conditioned, provides for the retention of the General Plan Major Ridgeline and all of the successive spur ridges on the western portion of the site. Two large knolls will not be preserved on the site. These features are not being lost through successive padding, but simply being graded away to provide fill material for Deep Canyon and in the process creating a relatively level area to cluster development on the site. However, that is a trade-off for clustering the proposed development at one end of the site in order to preserve mare than 60 percent of the site in its natural condition. Since the site is entirely composed of natural topographic features, the design preserves a majority of those features. C. The project, as conditioned, provides for the retention of major natural skyline profiles so as to avoid abrupt changes in grades by preserving the General Plan Major RldlgeGne and conditioning the project to prevent silhouetting of structures (Planning Candition MD. D. The project, as conditioned, provides for the preservation and enhancement of prominent landmark features, such as natural rack outcroppings, prominent trees and plant materials, and other areas of special natural beauty. The site is without natural rock outcropping ar prominent trees and is generally covered with coastal sage which is only prominent tram the standpoint of -12- • • providing gnatcatcoer habitat. The entire site, however, is composed of natural :,eauc, of topography which is preserved by over 60 percent by clustering development at one end of the site. E. The protect, as conditioned, provides for :he design and arrangement of building sites, uulizcng increased tot sizes, greater settacks and setoacK variauons, and reduced residential densities on steeper terrain so as to :unit the extent of grading alterations. The subcivision will have minimum 10,000-square-foot-:ot sizes and s arranged to limit site grading to approximately a third of the site. F. The protect, as conditioned, provides for :he .tuuzat:on if clustered sites and buildings and increased densities on more gently swoirg terrain w reduce grading alterations on steeper natural terrain. The protect design creates gently sloping terrain on :ne only portion of the site that is wide enough and clusters development there in order to preserve the rest of the site. G. The protect, as conditioned, provides for the utilization of varying setbacks, building heights, innovative building techniques, and compatible building forms, materials and colors which serve to blend all buildings into the terrain. Since the proposed project is a custom lot subdivision, this objective is not applicable. H. The project, as conditioned, provides for the utilization of building designs, locations, and arrangements which serve to avoid a continuous intrusive skyline effect and which afford view privacy and protection. The location of project development more than 40 feet below the lowest elevation of the General Plan Major Ridgeline on the southeast boundary with San Clemente affords view privacy and protection. 1. The project, as conditioned, provides for the preservation and introduction of plant materials to protect slopes from soil erosion and slippage and minimize the visual effects of grading and construction on hillside areas. A planting plan has been provided which is adequate to protect slopes from soil erosion and minimize visual effects of grading. J. The project, as conditioned, provides for the introduction and utilization of permanent full coverage irrigation systems adequate to sustain existing and developed slope plantings and to protect against potential hazards due to fire. -�n irrigated vegetation fuel modification plan has been submitted and will be approved by the Fire Marshal prior to project permits. K. The project, as conditioned, provides for the utilization of street designs and improvements which serve to minimize grading alternations and harmonize with the natural contours and character of the hillside. - 13- • As pointed out in discussion of other obiectives. since the site .5 composed of 100 percent steep topography, there was little opportunity to harmonize with the natural contours anywhere on the site. The alternative chosen for ;he project design involves a trade-off of grading one third of the site to create a relatively flat area in order to preserve the balance of the site from the need to do any grading for streets. 4. The City Council approves Ridgeline Exception 93-1 based upon :he following findings: A. The proposed project as conditioned, does not encroach into a designated ridgeline (Planning Condition A(21). B. The proposed project, which includes grading, streets arc .,;Is which encroach into the 200 -foot horizontal buffer adjacent to the designated r;cge:tne on the site has been condition to (Planning Condition AL21h 1. Prevent structures from visually encroaching :pon :ne rtdgeline profile from Camino Las Ramblas. 2. Be contoured to provide a natural appearance by using variable slope gradients, rounaing of tops and toes of slopes, and blending of contours with the natural topography. C. The project is compatible with all provisions of the Open Space and Conservation Element of the General Plan due to project design which preserves more than 60 percent of the project site in natural open space. Conservation related to the following applicable priorities of the Open Space and Conservation Element (p. 47) has been accomplished through project design and environmental mitigation measures: Priority Grou Ridgeline Preservation Plant and Wildlife Habitats Equestrian and Hiking Trails Greenbelt Corridors Significant Archaeological.Sites J. The City Council approves Growth Management Review 91-1 at a point rating of 47.9 based upon the following ranking of evaluation criterias Ratina Criteria Evaluation Points 1. Proximity of nearest Acu Park is developed with a 3 dewed public park children's play area, a grassy area and multi-purpose fields and is located 2,310 feet from the nearest boundary of the most distant lot. 2. Proximity of nearest Palisades Elementary School is 0 elementary school, approximately 3 miles from the nearest boundary of the most distant lot. -14- Rating Criteria • 3. Project site located in attendance area served by overcrowded elementary, junior high or high school Evaluation The proposed project is located within the Palisades, Shoreciiffs and San Clemente school attendance areas. The following CLAD statistics show one of the three levels overcrowded: Palisades Capacity, 690; Enrollment, 746: 5horecliffs - Capacity, 930; Enrollment 87: San Clemente - Capacity, 2,240; nroilment, ,027. Points 3 4. Project requires extension of Camino Las Ramblas, a secondary 5 commuter or arterial road for arterial road currently accesses access. the site. The road will be extended through the site as part of the project. 5. Project provides dual access The project is served by cul-de- 0 to development. sacs from Camino Las Ramblas. Dual access is not provided. 6. Variances requested to No variances have been requested. 4 accommodate project. 7. GPA required for project. The project does not require a +5 GPA to relocate a protected ridgeline. S. Consumption of land The entire site is GP designated 6.3 designated for Resource Resource Conservation. Conservation in GP (% of Approximately 63% of site is site) proposed to remain in a natural state. 9. Landform alteration Approximately 63% of site is 6.3 proposed to remain ungraded. 10. Provision for public or Approximately 63% of site is 6.3 private open area. proposed to remain in open area. 11. Provision of private No private recreation facilities 0 recreation facilities. are proposed. U. Reduction of 50% or more GP density is onelacre or 99 0 below GP density units. The proposed 37 units is 12% below GP density. -15- Rating Criteria • Evaluation • Points 13. Architectural design quality. The project is a subdivision for N/A custom lot sales. No architecture is proposed. 14. Unusual public benefit. The proposed project would 7 improve access to public open space by filling Deep Canyon and provide an equestrian staging area in addition to preserving 63 acres of natural open space. Total 4 PASSED, APPROVED, AND ADOPTED this of Noril 1993. T �._MAYOR ATTEST: STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ser CITY OF SAN JUAN CAPISTRANO ) 6th day 1, CHERYL JOHNSON, City Clerk of the City of San Juan Capistrano,. California, DO HEREBY CERTIFY that the foregoing is a true and correct copy of Resolution No. 93-4-6-3 adopted by the City Council of the City of San Juan Capistrano, California, at a regular meeting thereof held on the 6th day of AD Ti 1 . 1993, by the following vote: AYES, Council Members Nash, Hausdorfer, Campbell and Mayor Jones NOEbs Council Member Vasquez A['iSTAU* None ABSENT, none (SEAL) CHERYL JQW015W, CITY CLERA -16- •070 The following item was removed from the Consent Calendar at the request of Mayor Nash: It was moved by Council Member Jones, seconded by Council Member Swerdlin, and unanimously carried that the Minutes of the Regular Meeting of January 17, 1995, be approved as modified by Mayor Nash as follows: page 11, the last sentence, was set out as an additional item in the motion to read: "(3) The developer shall consider vehicular access from Forster Street to Ortega Highway via EI Camino Real." PUBLIC HEARINGS t!:_' •: • � • *I • � I ; \ _ ' X11\L • � SII • ar-AWMIMIUM904 • •' I 1 •1 Proposal: Consideration of a request by Concorde Development for relief from Soil Subsidence Insurance conditions imposed on Vesting Tentative Tract Map 14398 by City Council Resolution No. 93-4-6-5, specifically, to rescind Conditions H-1 and H-3 and modify Condition A-6, A-14, C-19, and H-2. These conditions set standards for the amount, term, and carrier for soils subsidence insurance with the objective of protecting the City, fixture subdivision lot owners, and adjacent Connemara property owners from liability in the event of a catastrophic slope failure. This item had been considered on October 18, 1994, and tabled indefinitely at that time to allow the applicant to conduct a construction -level geotechnical analysis to determine the probability of a slope failure. The project is a 79 -lot, 99 -acre residential subdivision located at the northerly terminus of Camino Las Ramblas. Applicant: Concorde Development 19752 MacArthur Blvd., Suite 240 Irvine, CA 92715 Written Communications: (l) Report dated February 21, 1995, from the Planning Director, noting that City staff verified the applicant's contention that the required soil subsidence insurance was not obtainable. The geotechnical analysis concluded that the Connemara slope was stable and that the proposed grading could be accomplished within industry safety standards. The only probability of slope failure was limited to the proposed clean-out of unconsolidated material from Deep Canyon. The draft Resolution included conditions requiring that: 1) a $5 million surety mechanism be in place to ensure against damage to Connemara homes located above the Deep Canyon clean-out; 2) permission from homeowners on Dungarvin Lane and on the east side of K rikerry Lane be solicited to conduct a pre -construction survey; 3) a Soils Warranty Program be implemented for all lots prior to approval of the Final Map; 4) required securities or bonds be City Council Minutes -4- 2/21/95 U/1 submitted to guarantee project completion; and, 5) the developer defend, indemnify, and hold harmless the City from any liabilities. (2) Letter dated February 6, 1995, from Kenneth H. Combs, 27662 Dungarvin Lane, requesting that the applicant's geotechnical consultant, Leighton & Associates, bore another hole in the center of the slope beneath the Connemara homes to obtain sufficient geologic information and to ensure the stability of the hillside below the Connemara development. (3) Memorandum dated February 21, 1995, from the Council Services Administrator, forwarding again for Council information, a letter dated October 19, 1994, from Mr. and Mrs. Ernie Burnett, 27672 Dungarvin Lane, requesting the project not be approved until additional geotechnical analyses and methods for safe construction are presented. Exhibits were on display, and Dick Bobertz, Planning Manager, made an oral presentation. He recommended that a modification be made to proposed Condition A6(b) to protect against slope failure and soil subsidence. The modification would require that the $5 million surety instrument remain in effect until all grading bonds for the subdivisions were released, to occur no less than six months after completion of grading. Applicant's Comments Dennis Gage, President of Concorde Development, spoke regarding the firm's experience with grading operations and ensuring the safety of slopes. He commended the City's efforts in verifying the geotechnical reports for this development and concurred with the recommendations and modifications proposed by staff. Public Hearine: Notice having been given as required by law, Mayor Nash opened the Public Hearing, and the following persons responded: (1) Dennis Hannan, President and Principal Engineering Geologist of Hannan Geotechnical, Inc., spoke on behalf of the Connemara residents. He stated he had reviewed the first preliminary soils report prepared on the project and the supplemental report prepared by Leighton and Associates. He stated that the boring done by Irvine Soils between the two holes bored on the hillside by Leighton & Associates below the Connemara development was still of concern since Irvine Soils did not provide sufficiently detailed drawings; further, there was no proof that weaknesses in that area did not exist. He noted that Leighton & Associates had stated the borings were reasonably comparable; however, Connemara residents wanted the same level of detail on the Irvine Soils boring as was available from the Leighton & Associates borings. He stated that if the hole drilled between the two drilled by Leighton & Associates showed no clay seams or potential weakness they would be satisfied. City Council Minutes -5- 2/21/95 '072 0 0 (2) Ernie Burnett, 27672 Dungarvin Lane, noted his letter dated October 19, 1994, to then Mayor Collene Campbell expressing his concerns regarding the potential for a catastrophic slope failure in the area below the Connemara development. In the letter Mr. Burnett referenced comments made by Hannan Geotechnical, Inc. and provided estimates of costs to repair the hillside should a slope failure occur. He requested that a thorough geotechnical analysis be performed for the entire project before grading commenced to ensure slope stability. (3) Ken Combs, 27662 Dungarvin Lane, expressed concern that removing the toe of the natural slope, as proposed by the applicant, could impact the stability of the hillside below the Connemara development. He urged that the data submitted by Irvine Soils be completed. He discussed the unavailability of insurance for this type of project and the problems with selling bonds to finance the proposed Geologic Hazard Abatement District. He urged that one more hole drilled to allow proper analysis of the crucial part of the slope. (4) Gale Darter, 33781 Limerick Lane, inquired whether the proposed Geological Hazard Abatement District would be established for the 79 new homes or if it would include other areas. Mr. Tomlinson advised that the Geological Hazard Abatement District would be for the new subdivision homes only. Mr. Darter inquired how the Geological Hazard Abatement District would cover a slope failure since the hillside is shared by both the Connemara and Concorde developments. Mr. Huber stated that the proposed Geological Hazard Abatement District would cover a slope failure based on cause and location of the failure. Mr. Darter expressed concern with determining the cause of a slope failure. There being no further input, the hearing was declared closed with the right to reopen at any time. In response to Council questions, Stephen Jensen, Vice President and Principal Geologist of Petra Geotechnical South, Inc., who performed the third -party geotechnical review of the hillside at the request of the City, summarized the standards and guidelines established for addressing specific problems and solutions regarding slope failures. He agreed with the recommendation by Hannan Geotechnical that additional work should be performed to address the specific area of concern below the Connemara development. He noted that the work performed by Leighton & Associates met all of the City's requirements and industry standards. He stated that although additional areas of review would be necessary at the engineering stage during grading operations, he felt the project was ready to move forward. Mr. Tomlinson recommended that a new Condition A6(d) be added to address the concerns of the Connemara residents. The new condition would require an additional boring and geotechnical analysis of the area between the two borings made by Leighton & Associates to be performed by the applicant prior to consideration of the final grading plan to ensure slope stability. If the results of the previous geotechnical investigations were not conclusively supported by the new analysis, the project and study would be returned to the City Council City Council Minutes -6- 2/21/95 for further consideration. Mr. Tomlinson advised that this condition would allow additional testing to occur prior to the City Council releasing the project for Final Map. In response to Council questions, Dennis Gage, project applicant, felt there was sufficient information on the borings. Mike Stewart of Leighton & Associates explained the boring procedure, and a cross-section of the area in question was drawn and submitted. He advised that the borings made by Leighton & Associates in the critical area concluded there was no instability. Council Discussion: Council Member Jones felt that the geotechnical analyses performed by the applicant were adequate and that the modified conditions recommended by staff would address the concerns of the Connemara residents. Council Member Hart agreed that the project should move forward while the additional geotechnical analysis of the middle location of the slope was conducted. He noted that with the modified conditions recommended by staff, any problems uncovered by the additional analysis would be brought back to the Council for consideration prior to approval of the Final Map. Council Member Campbell indicated that her initial concerns with the geotechnical aspects of the project had been addressed. Council Member Swerdlin stated he had visited the site several times over the past month and a half and concurred with the recommendations proposed by staff. Mayor Nash stated that although she preferred that soil subsidence insurance be obtained by the applicant, she felt the modified conditions proposed by staff were adequate to address everyone's concerns. Adoption of Resolution Rescinding and Modifying Conditions of Resolution No 93-4-6-5 for Concorde Development: It was moved by Council Member Campbell, seconded by Council Member Jones, that the following Resolution be adopted, with the following modifications: (1) Condition A6(b) was modified, as follows: "Surety for Damage to Existing Homes - A minimum of $5,000,000 surety instrument approved by the City Attorney and Building Official shall be in place during grading operations and shall remain in effect until the release of allrg ading bonds for the subdivision. However. in no instance shall this be less than six (6) months after completion of allrg ading work." (2) New Condition A6(d) was added, as follows: "Prior to consideration of the final grading plan (prior to Final Map), prepared in accordance with Condition No. A-2 of City Council Resolution No. 93-4-6-5, a Geotechnical Analysis shall be submitted by the developer, to include a further test boring between LB -8 and LB -9 to verify the temporary slope stability conclusions submitted to the City in the Leighton and Associates Supplemental Geotechnical Investigation dated December 19, 1994. Said report shall be reviewed by the City's Geotechnical Consultant, who shall prepare and submit a report on their findings and recommendations concurrent with the grading plan. If the conclusions of the Geotechnical Investigation are not conclusively supported by the results of the test boring, the project and study shall be returned to the City Council for further consideration." City Council Minutes _7. 2/21 /95 ',074 • RESOLUTION NO. 95-2-21-2- APPROVING MODIFICATIONS TO RESOLUTION NO 93-4-6-5 VESTING TENTATIVE TRACT MAP 14398 (CONCORDE DEVELOPMENT) - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, RESCINDING CONDITIONS H-1 AND H-3 AND MODIFYING CONDITIONS A-6, A-14, C-19, AND H-2 OF RESOLUTION NO. 93-4-6-5 TO APPROVE VESTING TENTATIVE TRACT MAP 14398 (CONCORDE DEVELOPMENT) The motion carried by the following vote: AYES: Council Members Campbell, Hart, Jones, Swerdlin, and Mayor Nash NOES: None ABSENT: None RECESS AND RECONVENE Council recessed at 8:10 p.m. and reconvened at 8:18 p.m. PUBLIC HEARINGS (continued) 1 1 - Proposal: Consideration of a request by Kinoshita Enterprises, L.P., a California limited partnership, to issue one Replacement Note to Kinoshita Enterprises, L. P., with a date of March 6, 1991, in the amount of $3,916,450.71, to replace three Notes issued on March 6, 1991, to Shigeru Kinoshita, in the amount of $21,393.19; Shigeru Kinoshita Family Trust, in the amount of $3,177,958.95; and, Shigeru Kinoshita Children's Trust, in the amount of $717,098.57. The Replacement Note will maintain the same terms and conditions of the original Notes. Applicant Kinoshita Enterprises, L.P. 28901 Via Hacienda San Juan Capistrano, CA 92675 Written Communication: Report dated February 21, 1995, from the Administrative Services Director, recommending that one Replacement Note be issued in exchange for the three Original Notes for the same amount and with the same terms and conditions as the Original Notes. City Council Minutes -8- 2/21/95