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1991-0716_LUSK COMPANY, THE_AgreementRECEIVED SEP 30 1 25 PM '41 CITY CLFf K DEPA4TmN,T CITY OF SA,y JUAN Ci; lSiiHNJ REQUESTED BY, AND 91=49638.5 RECORDED IN OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA 4:00 p.m. SEP 12 1991 a. clvRecorder WHEN RECORDED RETURN TO: Recording'fees exempt e to Govt Code 6103. ocumen ry Transfer tax City of San Juan Capistrano No co siderati n 32400 Paseo Adelanto San Juan Capistrano, CA 92678 Attn: Cheryl Johnson, City Clerk Cheryl Jo sft GitClerx San Jua Cnpigtr-no 2675 AGREEMENT ESTABLISHING SLOPE DISPLACEMENT WARRANTY PROGRAM THIS AGREEMENT ESTABLISHING SLOPE DISPLACEMENT WARRANTY PROGRAM ("Agreement") is entered into as of July 16, 1991 1991, by and between THE LUSK COMPANY, a California corporation ("Lusk"), on the one hand, and THE CITY OF SAN JUAN CAPISTRANO ("City"), on the other hand. A. Lusk is the developer of Parcels C and D of the Lomas San Juan residential development located in the City of San Juan Capistrano. B. On June 6, 1989, the City Council of the City of San Juan Capistrano ("Council") passed, approved and adopted Resolution No. 89-6-6-4, approving Vesting Tentative Tract Map 13436. Pursuant to said Vesting Tentative Tract Map, Lusk proposed to subdivide approximately seventy-eight (78) acres of land located in the Lomas San Juan planned community into seventy-six (76) lots to provide for the construction of 286 attached dwelling units. C. The Council approved Vesting Tentative Tract Map 13436 subject to certain conditions, including: 1. Home Warranty: The provisions of Chapter 8-6 of the Municipal Code (Home Warranty Ordinance) shall apply to any person, firm or corporation selling or offering for sale within the project three or more dwelling units - not previously occupied for residential purposes - during any 12 -month period. 13. Sloye W, arranty: The developer shall participate in the City's Slope Warranty Program. 7/10/91R12rf183-8 -1- D. On June 6, 1989, the City Council of the City of San Juan Capistrano passed, approved and adopted Resolution No. 89-6-68, approving Vesting Tentative Tract Nap 13437. B. Pursuant to Vesting Tentative Tract Map 13437, Lusk proposed to subdivide approximately one hundred forty-six (146) acres of land located in the Lomas San Juan planned community into two hundred sixty-six (266) lots. F. The Council approved Vesting Tentative Tract Map 13437, subject to certain conditions, including: 1. Rome Warranty: The provisions of Chapter 8-6 of the Municipal Code (Rome Warranty Ordinance) shall apply to any person, firm or corporation selling or offering for sale within the project three or more dwelling units - not previously occupied for residential purposes - during any 12 -month period. 13. Slope Warranty: The developer shall participate in the City's Slope Warranty Program. G. By this Agreement, Lusk shall satisfy in full Condition 13 of the above -referenced resolutions. H. By this Agreement, Lusk shall also satisfy its obligations under Section 8-9.04 of the Municipal Code of the City pertaining to financial security with regard to the City's Home Warranty Program. NOW, THEREFORE, in consideration of the premises and promises hereinafter contained, Lusk and City agree as follows: 1.1 Warranty. Lusk warrants for a period of ten (10) years after the date of final grading approval for each tract within Parcels C and D, the manufactured slopes within each such tract against slope displacement, as defined herein. 1.2 (a) displacement two feet (2') or more, regardless involved, or (b) with vertical mo area of at least depth and regard Definition. "Slope Displacement" is defined as of soil on a manufactured slope at a depth of more with vertical movement of one foot (1') or of cause, and regardless of the square footage displacement of soil on a manufactured slope vement of one foot (1') or more and involving an nine hundred (900) square feet, regardless of less of cause. 1.3 Exclusions. Slope Displacement does not include: 1.3.1 Surface cracking and fissures, including without limitation desiccation cracks. -2- 1.3.2 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 Slope Displacement. 1.4 Reserved Rights. Lusk reserves the right to assert claims against any person or entity responsible in whole or in part for displacement of soil on the slopes, whether covered by this definition or not. This Agreement also reserves the right of the homeowners associations for tracts within Parcels C and D to assert claims against any person or entity, including without limitation Lusk, responsible in whole or in part for displacement of soil, whether covered by this definition or not. These reserved rights are subject to any applicable statutes of limitation, including without limitation the ten (10) -year limitations period provided by California Code of Civil Procedure Section 337.15. 1.5 Covered Repairs. During the first five (5) years of the warranty program, Lusk will make or cause to be made all repairs to correct Slope Displacement. These repairs will be made at Lusk's sole expense. After the end of the fifth (5th) year of the warranty program, repairs for Slope Displacement will be financed out of the Homeowner Assessment Fund, defined below. If the amount financed out of the Homeowner Assessment Fund is insufficient to cover the cost of such repairs, Lusk shall finance the remainder of said repair work not covered by the Homeowner Assessment Fund out of its assets. In the event Lusk fails to perform as provided herein, the City may draw upon Lusk's security as provided hereinbelow. 1.8 Penalty. If, during the first five (5) years of the warranty, or the second five (5) years as provided in Section 1.5 above, Lusk (or its successor) fails to make reasonably necessary covered repairs, the City Attorney will provide written notice to Lusk of such failure and provide Lusk with an opportunity to pure. "Cure" will be defined as commencement of reasonably necessary covered repairs by or on behalf of Lusk (or its successor) within fifteen (15) calendar days of receipt by Lusk (or its successor) of the notice. If Lusk (or its successor) fails to oommence performance of such repair work within fifteen (15) calendar days of Lusk's (or its suooessor's) receipt of written notice of the condition as to which the repair work is to be performed, from the City Attorney, then the Council may, by resolution or other official Council action, after a noticed public hearing, authorize the Director of Engineering and Building ("Director") to draw upon Lusk's Slope Security, as defined herein, to perform such work as is reasonably necessary to remedy the condition as to which the repair work is to be performed (the "Authorized Monies"). Lusk's Slope Security will be vested such that the Director can access the funds after such -3- Council action and any judicial reference regarding such action, pursuant to Section 1.8 below. 1.7 Public Hearing. Lusk (or its successor) will be entitled to reasonable notice of such public hearing, will have the right to appear at the hearing where the Council action is considered, and will be entitled to assert any and all defenses which Lusk (or its successor) may possess as to such Council action, including without limitation a claim that the work proposed to be performed is not within the scope of Lusk's obligations under this Agreement or is not reasonably necessary. 1.8 Dispute Resolution. In the event of a dispute between the City and Lusk (or its successor) involving any aspect of the penalty provided for herein, including without limitation the propriety of the Council action provided for herein, such dispute shall be resolved by a judicial reference pursuant to Section 4.8 below. 1.9 Deemed Reduction in L•usk's Contribution. Lusk agrees and acknowledges that if such Council action is taken properly, pursuant to this Agreement and under the laws of the State of California, then as a penalty for the nonperformance by Lusk (or its successor), Lusk's Slope Security will be deemed (for purposes of the timing of recovery of Lusk's Slope Security only) to have been reduced by an amount equal to the amount of the Authorized Monies. Under those circumstances, Lusk's recovery of its funding from the program will be delayed until the homeowner assessments build sufficiently to compensate for the deemed reduction in Lusk's Slope Security. 2. Security and Funding for the Slope warranty Program. Lusk shall secure its slope displacement warranty obligations as provided herein by posting a form of security acceptable to the City in a form approved by the City, in the amount of $464,000, with the City within five (5) days following Lusk's receipt of final grading approval from the City covering all of the tracts located within Parcels C and D. Total funding and security for the slope warranty program will be $964,000, consisting of Lusk's security in the amount of $464,000 ("Lusk's Slope Security") plus $500,000 in anticipated homeowner assessments and interest thereon. The homeowner assessments and interest thereon shall be referred to as the "Homeowner Assessment Fund." The homeowner assessments will commence on a per -lot basis as esorows for the lots close, consistent with the regulations of the California Department of Real Estate. The security described in this Section shall be in addition to the security required by Section 3 of this Agreement. 2.1 Release of Lusk's Slope Security. Lusk's Slope Security covering the slope warranty program will be immediately released by City upon the expiration of the ten (10) year warranty period. -4- W to reduce the amount of security posted to an amount acceptable 'to the City prior to the expiration of the warranty period covering the last unit sold by Lusk. The deposit of said cash into the Home Warranty Account or the posting of said security (collectively referred to herein as the "Home Warranty Security"), shall satisfy Lusk's obligations under Section 8-9.04 of the City's Municipal Code. The security described in this Section 3 shall be in addition to the security required by Section 2 of this Agreement. �.�w7rdr-w4 : • . 4.1 The slope warranty provided herein will apply only to manufactured slope areas within the boundaries of the final tracts within Parcels C and D, prepared by or on behalf of Lusk. The warranty expressly excludes slope displacement or any other soils movement or failure of slopes, regardless of cause, on or from the ridge line area. 4.2 Appropriate provisions in the Covenants, Conditions and Restrictions ("CC&R's") and in the deeds will grant Lusk an exclusive license and right to enter onto common areas and individually -owned lots so that Lusk or its agents can maintain and 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 warranty. 4.3 City shall determine the scope of repair work under this Agreement and Lusk shall direct the work. Such work will be performed by an entity selected by Lusk and compensated during the first five (5) years of the slope warranty by Lusk and during years six through ten (6-10) of the slope warranty from the Homeowner Assessment Fund. 4.4 Any proposed alterations by homeowners to the landscaping, grading, irrigation or drainage on their individually -owned property will be subject to review by the board of the appropriate homeowners associations. 4.5 In years six through ten (8-10) of the warranty, an independent claims adjusting service, selected by Lusk and the City and compensated from the Homeowner Assessment Fund, will adjust all claims for work which are claimed to be within the coverage of the warranty. Claims asserted to be within the coverage of the warranty will be processed by forms provided by the board of the homeowners associations and filed with the independent adjuster, who will promptly adjust such claims after obtaining from Lusk an analysis of the scope and cost of necessary repair work. go 2.2 Deposited Funds. The Homeowner Assessment Fund will be maintained with a financial institution mutually agreed upon by Lusk and City. However, the homeowners associations will be permitted to move the Homeowner Assessment to another institution at their option after the homeowners take control of the associations and Lusk's control of the associations has ceased, pursuant to the regulations of the California Department of Real Estate. 3. Security for the City Home Warranty Prodr m, Lusk shall secure its obligation under the City Home Warranty Program, as provided herein, by posting cash or other security acceptable to the City, in amounts equivalent to one percent (1%) of the aggregate valuation used to determine building permit fees of those dwelling units subject to the City Home Warranty Program. More specifically, prior to the City's issuance of a Certificate of Occupancy pertaining to a particular unit, Lusk shall deposit cash equivalent to one percent (1%) of said unit's building permit valuation into an account established with a financial institution selected by Lusk and approved by City ("Home Warranty Account"). Each deposit made into the Home Warranty Account shall remain there for the duration of the three (3) year warranty period of the subject unit. At the termination of the three (3) year warranty period for a particular unit the amount deposited into the Home Warranty Account with regard to said unit shall be immediately released to Lusk, until such time that there are 100 units still within the 3 -year warranty period and covered by the Home Warranty Agreement between Lusk and the respective buyer of each unit, at which time no further money shall be released from the Home Warranty Account until such time as the 3 - year warranty period has expired for all of the remaining units within Lusk's development. The Home Warranty Account shall constitute a revolving fund from which the City may withdraw funds should Lusk default in its obligations pursuant to a "Home Warranty Agreement" entered into by Lusk and each buyer of a unit subject to the City Home Warranty Program. In the event the Home Warranty Account is established as an interest-bearing account, all interest earned shall belong to Lusk. In the event Lusk determines to post security with the City, as opposed to the cash deposits referenced above, said security, which shall be in a form acceptable to the City, shall be posted prior to the issuance by the City of a Certificate or Certificates of Occupancy pertaining to a particular unit or units. The amount of said security shall be equivalent to one percent (1%) of the aggregate building permit valuation of the unit or units to be covered by the security to be posted. Said security shall remain in place until the expiration of the three (3) year warranty period covering all of the units within Lusk's development, unless the City permits Lusk ILE 4.6 Individual purchaser deeds and the CC&R's will reference the slope warranty provided herein. 4.7 During the period of Lusk's control of the homeowners associations, Lusk will be responsible for the collection of assessments and placement of such assessments into the accounts referenced herein. During such period, Lusk will report to the Director of Engineering and Building of the City of San Juan Capistrano the incidence of covered and noncovered claims, as well as the balances in the account containing the Homeowner Assessment Fund as of the date of the report. Lusk will make such reports on or before March 31 and September 30 of each year in which Lusk retains control of the homeowners associations. Thereafter, the collection and reporting responsibilities with respect to the Homeowner Assessment Fund will devolve upon the board of directors of the involved homeowners associations. After Lusk's control of each homeowners association has ceased, the board of each such association will report to Lusk the incidence of covered and noncovered claims, as well as the balance in the Homeowner Assessment Fund as of the date of the report. Such reports will be made on or before March 31 and September 30 of each year. Each such board will also provide to Lusk at Lusk's request any further information and documentation as is reasonably necessary to effectuate the purposes of this Agreement. 4.8 Dispute Resolution. Any dispute arising out of this Agreement shall be heard by a reference"pursuant to the provisions of California Code of Civil Procedure Section 638 et sea., for a determination to be made which shall be binding upon the parties as if tried before a court or jury. 4.8.1 Within five (8) business days after service of a demand by a party hereto, the parties shall agree upon a single referee who shall then try all issues, whether of fact or law, then report a finding and judgment thereon. If the parties are unable to agree upon a referee, either party may seek to have one appointed, pursuant to California Code of Civil Procedure Section 640, by the presiding judge of the Orange County Superior Court. 4.8.2 The compensation of the referee shall be such charge as is customarily charged by the referee for like services. The cost of such proceedings shall initially be borne equally by the parties. However, the prevailing party in such proceedings shall be entitled, in addition to all other attorney's fees and costs, to recover its contribution for the cost of the reference as an item of recoverable costs. 4.8.3 The referee shall apply all California rules of procedure and evidence and shall apply the substantive law of the State of California in deciding the issues to be heard. -7- 4.9 The parties to this Agreement agree to perform such other and further ants and execute such other and further documents as are necessary to effectuate the intent of this Agreement. 4.10 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 provision hereof. 4.11 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. 4.12 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. 4.13 This Agreement is binding upon and shall inure to the benefit of the parties hereto, their respective agents, employees, representatives, assigns, heirs, and successors in interest. 4.14 Each party has cooperated in the drafting and the preparation of this Agreement. Hence, in any construction to be made of this Agreement, the same shall not be construed against any party. This Agreement shall be construed under California law. 4.15 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 an 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. 4.16 All notices given pursuant to this Agreement and all documents to be transmitted shall be sent by United States mail, postage prepaid, certified return receipt requested, as follows: ffm , 0 4 - To Lusk: The Lusk Company 17880 Gillette Avenue P.O. Box C-19860 Irvine, CA 92713 Attn: David Steffensen Associate General Counsel To City: The City of San Juan Capistrano (Slope Warranty 32400 Paseo Adelanto Program) San Juan Capistrano, CA 92675 Irvine, California 92713 Attn: Director of Engineering and Building To City: The City of San Juan Capistrano (Home Warranty 32400 Paseo Adelanto Program) San Juan Capistrano, CA 92678 Irvine, California 92713 Attn: Director of Administrative Services 8. Substitution of Insurance Policy. Lusk reserves the right to request, during the term of both the ten-year slope warranty period and the three-year Home Warranty period, substituting an insurance program to meet its slope warranty and/or Home Warranty obligations, as provided herein. Said insurance program shall be subject to the review and approval of City prior to its implementation. IN WITNESS WHEREOF, the parties hereto have executed this Agreement Establishing Slope Displacement Warranty Program as of the date and year first above written. Dated: July 16, 1991 THE CITY OF SAN JUAN CAPISTRANO By Kennethh. Friess,/Mayor City Cler Dated: July 5, 1991 APPRGVED i THE LIISK P LEGAL DEPT. f a Cali 0 p ra n j ;y' Oi9IiER By: 7 TE 1 Thomas By: Assistant Secretary CORPORATE ACKNOWLEDGMENT State of California County of Orange ISS. OFFICIAL SEAL CHERYL A. JOHNSON " NOTARY PUBLIC - CALIFORNIA OMGE COIMTY MY comm, expires DEC i3, 1993 On this the 16th day of Cheryl A Johnson the undersigned Notary Public, personally appeared 19—q1L, before me, ----"-- Kenneth E. Friess--`---- gi personally known to me proved to me on the basis of satisfactory evidence to be the person( c �x t in the Within in ruer Mo, — $� an JUan �apiE named, and WITNESS my hand and official seal. ATTENTION NOTARY: Although the mfomlatm requested below M OPTIONAL, it could prevent fmuWIwt attachment of thl9 certificate to another daamtent THIS CERTIFICATE Title or Type of Document Slope Displacement Wnrrnnt-y program MUST BE ATTACHED Number of Pages 9 Date of Document JulY 16, 1991 TO THE DOCUMENT DESCRIBED AT RIGHT: Signer(s) Other Than Named Above The Lusk Company In. CAT. NO. NNO0737 TO 1945 CA (8-84) (Corporation) STATE OF CALIFORNIA NO. a72 o rWIONALNOVkRYAS4O17gN•8Zl RNM*Am.•P.O. Bin 7184-CWgpa PWk,CA 91301-1184 dP TICOR TITLE INSURANCE COUNTY OF ORANGE 1 SS' On July 5, 1991 before me, the undersigned, a Notary Public in and for said State, personally appeared 1 lalll R. Brasher personally known to me or proved to me on the basis of satisfactory evidence to be the pergon who executed the within instrument as the Vice President, and Donald D. Steffensen personally known to me or proved to me on the basis of satisfactory evidence to be the ersop who executed the within instrument as the Xsslstant OFFICIAL SEAL. Secretary of the Corporation ROBIN ELISE HERNDON that executed the within instrument and acknowledged 40 NOTARY PUBLIC-CAUPONAA to me that such corporation executed the within instru- ORANGE COUNTY ment pursuant to its by-laws or a resolution of its *Caao. E'PM Aug. 19,1491 board of directors. WITNESS tg1d official YC9j. area for official notuW scall 0 As set forth in the Report dated June 6, 1995, from the Director of Engineering and Building, the plans and specifications were approved for the installation of drainage on Calle Delgado. Staff was authorized to call for bids. 4. RESOLUTION ASSIGNING THE IMPROVEMENT AGREEMENTS FOR TRACTS 13436. 13437. 13865_ AND 13866 (=LENFED AREAS C AND D) FROM THE LUSK CONVANY TO GLENDALF FEDFRAL RANK (GLENFED) (600.30) As set forth in the Report dated June 6, 1995, from the Engineering and Building Director, the following Resolution was adopted: 1) assigning the Improvement Agreements from the Lusk Company to Glendale Federal Bank for Tracts 13436, 13437, 13865, and 13866, and 2) approving the substitution of the Lusk Company bonds with equivalent sureties from Glenfed: 1 03 *161 R INr M ► ► • ►1u17)eI • I kVj I W MILTV45171►Y uI:IeI vmwI•m :L61% t:2Q 1; wa,91:13 rrIII r Cal ♦ • MAIN P 1 1 •• "• 1 I 171 • 1 1" • 1 • THE SURETY SUBSTITUTIONTO TRANSFER ALL • •• 7171' :. :.. � The Report advised that through foreclosure the land had been returned to Glendale Federal Bank and the improvement work would be their responsibility until sale of the land to Taylor - Woodrow Homes is completed. The Assignment of interests will be forwarded to the Orange County Recorder's Office for recordation, • • r.l • .: 0 • "Wr.l • rr. ; • Written Communications: (1) the Report dated June 6, 1995, from the Director of Engineering and Building, advising that as a member of SERRA, the City must approve the Authority's 1995-96 annual budget and adopt the city's proportionate share of that budget. City Council Minutes -3- 6/6/95 Applicant: • f Mr. Paul Farber • Franciscan Plaza Investment Group 31831 Camino Capistrano, Suite 100 San Juan Capistrano, CA 92675 Written Communication: Report dated April 18, 1995, from the Administrative Services Director, recommending that this item be tabled indefinitely at the request of the applicant. Motion to Table Item: It was moved by Council Member Campbell, seconded by Council Member Hart, and unanimously carried that this item be tabled at the request of the applicant. Council recessed at 7:34 p.m. to convene the San Juan Capistrano Community Redevelopment Agency, and reconvened at 8:35 p.m. as the City Council. .sut t► .ter t t •� ' • Nti �r Report dated April 18, 1995, from the Planning Director, recommending that the proposed modifications to the Soils Warranty Program for Lomas San Juan Areas C and D be approved, based on the findings that the modified program provides the same safeguards as the original schedule and will not result in a decrease in the amount of initial funds available to the Homeowners Association. The report noted that Area C-1 did not contain slope areas within the subdivision and would not be required to participate in the program The amount of contributions would not be changed by the exclusion of Area C-1, since contributions were based on the amount of manufactured slopes within the various development areas. The developments required to participate in the program were located within Areas C-2, D-1 and D-2. Mr. Tomlinson gave an oral presentation. He recommended that proposed Condition #7 be modified to delete the words "as a result of improper design or construction" in the first sentence. 0 City Council Minutes -7- 4/18/95 Approval of Modified Implementation Program for Gle fed Areas C and D: It was moved by Council Member Hart, seconded by Council Member Jones, and unanimously carried that the modified implementation program for Glenfed Areas C and D be approved, with the modification to Condition #7 deleting the words "as a result of improper design or construction" in the first sentence. PDXXORNIFAILIN4WIN W11 ' •• • 0 RANTIOTll • • J l •' 1r� Written Communication: Report dated April 18, 1995, from the Public Lands and Facilities Director, recommending that a request to name the tot lot portion of a proposed park at San Juan Creek Road and Camino Lacouague "Honey Tot Lot" in memory of Jack Gottfried's dog, Honey, be approved, and that Mr. Gottfhed's donation to the park construction fund in the amount of $5,000 be accepted. Jack Galaviz, Maintenance Superintendent, made an oral presentation. Approval of Name for Tot Lot and Acceptance of Donation: It was moved by Council Member Jones, seconded by Council Member Swerdlin, and unanimously carried that the tot lot portion of a proposed park at San Juan Creek Road and Camino Lacouague be named "Honey Tot Lot" in memory of Jack Gottfried's dog, Honey, and that Mr. Gottfried's donation to the park construction fund in the amount of $5,000 be accepted. 2. CITY CONTRACT EXTENSIONS FOR- (60030) a. City Building and Facilities Janitorial Services (Saddleback Community Enterprises) b. City Park Restroom Janitorial Services (Saddleback Community Enterprises) C. Sanitary Sewer Line Maintenance (Empire Pipe Cleaning & Equipment) d. City Street Light Maintenance and Repair (C.B. Electric) Written Communication: Report dated April 18, 1995, from the Public Lands and Facilities Director, recommending that the existing contracts for specified janitorial services, sanitary sewer line maintenance and street light maintenance be extended for a two-year period beginning July 1, 1995, and ending June 30, 1997, at no increase in costs to the City. Approval of Contract Extensions: It was moved by Council Member Jones, seconded by Council Member Hart, and unanimously carried that the following maintenance contracts with the City be extended for a two-year period beginning July 1, 1995, and ending July 1, 1997: City Council Minutes -8- 4/18/95 � 4. • f 60o'Jd RESOLUTION NO, 91-7-16-5. ACCEPTANCE OF RIGHT-OF- WAY DEDICATION. SAN JUAN CREEK ROAD BETWEEN FORSTER CANYON ROAD AND LA NOVIA - TRACTS 13436, 13437, 13865 AND 13866, AREAS C AND D (GLENFED/LUSK COMPANY/TORSON PACIFIC) - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, DECLARING ACCEPTANCE OF RIGHT-OF-WAY FOR SAN JUAN CREEK ROAD ON THE SOUTH SIDE FROM FORSTER CANYON ROAD EAST 253' AND THE NORTH SIDE ADJACENT TO THE SAN JUAN HILLS GOLF COURSE (GLENFED/LUSK/TORSON PACIFIC) The motion carried by the following vote: AYES: Councilmen Jones, Buchheim, Vasquez, and Mayor Friess NOES: None ABSENT: Councilman Hausdorfer The City Clerk was directed to record the documents with the Orange County Recorder's Office. � � rl' : • I�vl �M :. �Iyi �M : � � � : w : ' 4� : Y Z Written Communication: Report dated July 16, 1991, from the Director of Engineering and Building, advising that the Final Maps were found to be in compliance with the approved Tentative Tract Maps and recommending that the Improvement Agreements and Final Maps be approved for Tracts 13436, 13437, 13865 and 13866. The report also forwarded for approval a Construction Cost Apportionment and Reimbursement Agreement to insure construction of off-site improvements and a Slope Displacement Warranty Program Agreement providing for a combined homeowner/developer surety of $946,000 for any repairs necessary due to slope displacement. Donald Steffenson, The Lusk Company, P. O. Box C-19560, Irvine, was present to answer questions and introduced Scott Kelly, project manager. The Director of Engineering and Building made an oral presentation. The City Attorney stated that since the City was unable to reach an agreement with Glenfed regarding the -12- 7/16/91 0 i dedication of the river bottom property by quitclaim, Glenfed has indicated they would provide the City with a Letter of Credit in the amount of $1,636,335 by July 19, 1991, which would satisfy the parkland dedication requirement. Before October 15, 1991, the City and Glenfed would attempt to reach agreement regarding conveyance of the land. In the event an acceptable agreement was not reached, the City would draw on the Letter of Credit and the park and recreation fee obligation would be satisfied. He provided a letter and draft Letter of Credit both dated July 16, 1991, setting forth the provisions relative to the park land dedication and amended the recommendation listed in the staff report. Approval of Program. Agreements. and Final Mans: It was moved by Councilman Buchheim, seconded by Councilman Jones, and unanimously carried to approve the Slope Displacement Warranty Program, Construction Cost Apportionment and Reimbursement Agreement, the Improvement Agreements and, subject to a condition subsequent to approval and condition precedent to recordation that Glendale Federal Bank provide to the City an unconditional irrevocable letter of credit in favor of the City in the amount of $1,636,335 to secure satisfaction of the condition for park land dedication or payment of in -lieu fees as more specifically set forth in the letter dated July 16, 1991, executed by Richard R. Rebal, Executive Vice President, Glendale Federal Bank and substantially in the form of the letter of credit attached thereto, the Final Maps for Tract 13436, 13437, 13865 and 13866 (G1enFed/Lusk). The Mayor and City Clerk were authorized to execute the agreements and the City Engineer and City Clerk were authorized to execute the Final Maps subject to the conditions stated above. The City Clerk was directed to record all documents with the Orange County Recorder's Office upon satisfaction of the above -stated condition to provide the City an unconditional irrevocable letter of credit. Written Communication: Report dated July 16, 1991, from the Director of Community Services, providing an overview of the various activities associated with the Open Space Master Plan and Measure D. Mark Clancey, 31982 Via de Linda, representing Friends of Historic San Juan Capistrano, expressed concern that three of the four alternatives presented by the Keith French Group at the last Open Space workshop proposed a City maintenance -13- 7/16/91 • �� • AGENDA ITEM i July 16, 1991 TO: Stephen B. Julian, City Manager FROM: William M. Huber, Director of Engineering do Building SUBJECT: Approval of Slope Displacement Warranty Program, Improvement Agreement, Construction Cost Apportionment and Reimbursement Agreement and Final Maps, Tracts 13436, 13437, 13865, 13866; G1enFed/Lusk, Areas C do D, 1000' South of La Novia/San Juan Creek Road SITUATION The subject maps have been reviewed and checked by the Engineering Division and are ready for City Council consideration. The maps have been found to be in substantial conformance with Tentative Tract Maps 13436 and 13437 and the Subdivision Map Act. All necessary conditions of approval required prior to Final Map approval by Council Resolutions (Attachments #2 and #3) have been met. All fees, except Park and Recreation, and sureties have been paid and submitted to the City. Due to discrepancies in the final amount of usable dedicated parkland acreage and the amount of acreage reviewed by Park and Recreation and Planning Commissions, the developer has submitted bonding equal to 125% of the required fee. Said bond shall be held by the City until resolution of the land dedication. The Improvement Agreement (Attachment #4) binds the developer and his successors to complete all street, sewer, storm drain and recreational trail improvements. The attached Construction Cost Apportionment and Reimbursement Agreement (Attachment #5) insures off-site improvements (La Novia Bridge widening and signalization of San Juan Creek Road/Valle Road) as conditioned by approval of the Tentative Maps. Installation deadlines are described in Section 3 of the Agreement. The Slope Displacement Warranty Program (Attachment #6) provides a combined homeowner/developer surety of $964,000 for slope repair. NOTIFICATION G lenFed Development (Louise Larson) Lusk Company (David Steffensen) Lockman and Associates, Project Engineers (Lee Johnson) Adjacent Homeowners Associations COMMISSION/BOARD REVIEW, RECOMMENDATIONS These tracts have been previously reviewed by Parks and Recreation, Equestrian, Traffic and Transportation and Planning Commissions and the City Council. FOR CRS• COUNCIL AGEN41 H 3 AGENDA ITEM • • July 16, 1991 Page 2 FINANCIAL CONSIDERATIONS All required fees have been paid and sureties posted except as noted under Situation. ALTERNATE ACTIONS 1. By motion approve agreements and final maps. 2. Do not approve the agreements or maps. 3. Request additional information from Staff. RECOMMENDATION By motion, approve the Slope Displacement Warranty Program, Construction Cost Apportionment and Reimbursement Agreement, the Improvement Agreement and Final Maps for Tracts 13436, 13437, 13865 and 13866 (G1enFed/Lusk). Authorize the Mayor and City Clerk to execute the agreements and the City Engineer and City Clerk to execute the Final Maps. Direct the City Clerk to record all documents with the Orange County Recorder's Office. Respectfully submitted, William M. Huber, P.E. W MH/RAF:cI Attachments: 1. Location Map 2. Resolution 89-6-6-4, Tentative Tract 13436, Area C �-- 3. Resolution 89-6-6-5, Tentative Tract 13437, Area D - 4. Improvement Agreement 5. Construction Cost Apportionment and Reimbursement Agreement 6. Slope Displacement Warranty Program I:. G D Twa Y saga aw Y Yan aY11 Y YfY I )� I Ai vile ATTOCHMENT J ale PROJECT LOCATION nln C ATTACHIVfJN7 #2 RESOLUTION NO. 89-6-6-4 APPROVING VESTING TENTATIVE TRACT MAP 13436 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, APPROVING VESTING TENTATIVE TRACT MAP 13436 (GLENFED DEVELOPMENT) X11 WHEREAS, the applicant, Glenfed Development Corporation, California, has submitted Tentative Tract Map 13436, proposing to subdivide approximately 78 acres of land into 26 lots, described as a portion of Sections 7 and 8, T8S, R8W, of the San Bernardino Meridian, City of San Juan Capistrano, County of Orange; and, WHEREAS, the City's Environmental Review Board has determined that the proposed project will have a significant effect on the environment, has required the preparation of an environmental impact report, which report has been certified as final by the City Council, and has otherwise carried out all requirements of the California Enviromental Quality Act; and, WHEREAS, the City Planning Commission has forwarded the Vesting Tentative Tract Map to the City Council recommending approval; and, WHEREAS, a public hearing has been duly advertised and held to review and receive public testimony on the application; and, WHEREAS, the City Council of the City of San Juan Capistrano finds and determines as follows: 1. The proposed project, as conditioned, and its design and improvements are consistent with the PC designation on the General Plan map and is otherwise consistent with all other elements of the General Plan. 2. The proposed project, as conditioned, conforms to all applicable requirements of Title 9 of the City's Municipal Code (Land Use) and is consistent with the approved residential concept plan. 3. The project site is physically suitable for the type and density of the proposed development. 4. The design and improvements of the proposed project will not cause substantial environmental damage; nor will said design or improvements avoidably injure wildlife or their habitat. 3. The design or improvements of the proposed project will not cause serious public health problems. 6. The design or improvements of the proposed project will not conflict with easements acquired by the public at large for access through or use of property within the proposed project. -I- 102 v� 7. The design or improvements of the proposed project will not interfere with the maintenance of preservation of an historical site. NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of San Juan Capistrano, does hereby approve Vesting Tentative Tract Map 13436, subject to the following conditions: 1. Home Warrant - The provisions of Chapter 8-6 of the Municipal Code Home Warranty Ordinance) shall apply to any person, firm or corporation selling or offering for sale within the project three or more dwelling units --not previously occupied for residential purposes --during any 12 -month period. 2. CC&R's - A set of Conditions, Covenants and Restrictions (CC&R's) shall be prepared and implemented for the project. The CC&R's shall include at a minimum: a. Provisions on the use and maintenance, by the homeowners' association, of recreation areas, other common areas, and slopes. b. The prohibition of radio or television antennas projecting above any roof eaves (pursuant to Section 9-3.609 of the Municipal Code). The CC&R's shall be approved by the City Attorney prior to approval of a final map. Future modifications to the CC&R's shall be submitted to the City for review and approval. 3. Grading Plan - A preliminary grading plan for the project shall be y approved by the Planning Commission prior to approval of a final map. Said plan shall be designed to conform to the following criteria: a. The grading plan shall incorporate variable slopes on all major manufactured slopes which simulate natural topography. b. Tops and toes of slopes shall be meandering such that straight edges are not created. C. Tops and toes of slopes shall be vertically rounded. The major landform features shall be reflected in the grading plan. d. When blending manufactured slopes to natural topography, the grading plan shall emphasize the underlying natural area. For example, if a cut slope is across a knoll, the graded slope contours shall be bent to simulate the previous natural element (knoll); with ravines, the manufactured slope shall use conclave contouring that would visually simulate a ravine. 4 Architecture - Architectural elevations shall be approved by the Planning omZ�miss'ron prior to approval of a final map. -2- • • 1U5 S. Landscape and Wall Plans -Landscape, street tree, and fence/wall plans shall be prepared and implemented for the entire project. Preliminary landscaping, street tree, fence/wall plans shall be approved by the --� Planning Commission prior to approval of a final map. Following such plan approval, final working drawings shall be approved by the Director of Community Planning and Development. 6. Landscaping Installation - Landscaping shall be installed as follows: (1) Erosion -control landscaping for all manufactured slopes shall be installed immediately after the certification of rough grading by the City. (2) Street trees and all other non -erosion -control landscaping shall be installed in accordance with a landscape phasing plan approved by the Director of Community Planning and Development. No final building inspection shall be conducted for any dwelling unit within a given phase until all landscaping has been installed for that phase and approved by the Department of Community Planning and Development. Landape Maintenance and Maintenance Easements -The developer shall scbe responsible for adequately installing and maintaining all landscaping until such maintenance may be assumed by the homeowners' association. An open space maintenance easement shall be created over all major slopes that are within residential lots. Landscaping on said slopes shall be maintained by the homeowners' association. 8. Street Names - Street names shall be approved by the Director of ommunity tanning and Development prior to approval of a final map. 9. Vehicular Access Rights - Vehicular access rights to all primary, secondary, and commuter highways shall be released and relinquished to the City except at street intersections. 10. Public Streets - The following public streets shall be designed, constructed, and dedicated in accordance with Section 9-4.103 of the Municipal Code: "A" Street 11. Private Streets - The following private streets shall be designed and constructed in accordance with Section 9-4.103 of the Municipal Code: 12. "B," "C," "D," "E," "F," and "G" Streets. -3- the PPIy 104 • • 13. Slo a Warrant - The developer shall participate in the City's Slope Warranty Program. PASSED, APPROVED, AND ADOPTED this of Jane , 1989. ATTEST: 6th day STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss CITY OF SAN JUAN CAPISTRANO ) I, MARY ANN HANOVER, 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. 89-6-6-4 adopted by the City Council of the City of San Juan Capistrano, California, at a regular meeting thereof held on the 6th day of June , 1989, by the following vote: AYES: Councilmen Schwartze, Friess, Bland and Mayor Hausdorfer NOES: None ABSENT: Councilman Buchheim -4- • • STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. AFFIDAVIT OF POSTING CITY OF SAN JUAN CAPISTRANO ) MARY ANN HANOVER, being first duly sworn, deposes and says: 105 That she is the duly appointed and qualified City Clerk of the City of San Juan Capistrano; That in compliance with State laws of the State of California and in further compliance with City Resolution No. 83-12-20-3 and on the 13th day Of June , 1989, she caused to be posted: RESOLUTION NO. 89-6-6-4 , being: APPROVING VESTING TENTATIVE TRACT MAP 13436 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, APPROVING VESTING TENTATIVE TRACT MAP 13436 (GLENFED DEVELOPMENT) in three (3) public places in the City of San Juan Capistrano, to wit: City Hall; Old Fire Station Recreation Complex; Orange County Public Library. ORD. NO. CHECK LIST RES. NOSY MARY ANWqANOVER, CITY CLERK ian Juan L%pistrano, California / Mayor has signed i Clerk has signed City Seal stamped L All blanks typed,} "Absent" lam+ "Noes" ,Y "Abstain" low Copies sent to post rd. dist. file mail cer i ned Legal Publicat,on ordered to be published (date) No. Printed copies required e_ Remarks �4—j -S- #41 1 ft%on r.1v 1-#� J s. 0 RESOLUTION NO. 89-6-640 APPROVING VESTING TENTATIVE TRACT MAP 13437 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, APPROVING VESTING TENTATIVE TRACT MAP 13437 (GLENFED) 1 WHEREAS, the applicant, Glenfed Development Corp, California, has submitted Tentative Tract Map 13437, proposing to subdivide approximately 146 acres of land into 266 lots, described as a portion of Sections 7, 8, 17 & 18, T8S, R8W, of the San Bernardino Meridian, City of San Juan Capistrano, County of Orange; and, WHEREAS, the City's Environmental Review Board has determined that the proposed project will (will not) have a significant effect on the environment, has required the preparation of an environmental impact report, which report has been certified as final by the City Council, and has otherwise carried out all requirements of the California Environmental Quality Act; and, WHEREAS, the City Planning Commission has forwarded the Vesting Tentative Tract Map to the City Council recommending approval; and, WHEREAS, a public hearing has been duly advertised and held to review and receive public testimony on the application; and, WHEREAS, the City Council of the City of San Juan Capistrano finds and determines as follows: 1. The proposed project, as conditioned, and its design and improvements are consistent with the PC designation on the General Plan map and is otherwise consistent with all other elements of the General Plan. 2. The proposed project, as conditioned, conforms to all applicable requirements of Title 9 of the City's Municipal Code (Land Use) and is consistent with the approved residential concept plan. 3. The project site is physically suitable for the type and density of the proposed development. 4. The design and improvements of the proposed project will not cause substantial environmental damage; nor will said design or improvements avoidably injure wildlife or their habitat. 3. The design or improvements of the proposed project will not cause serious public health problems. 6. The design or improvements of the proposed project will not conflict with easements acquired by the public at large for access through or use of property within the proposed project. -1- 7. The design or improvements of the proposed project will not interfere with the maintenance of preservation of an historical site. NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of San Juan Capistrano, does hereby approve Vesting Tentative Tract Map 13437, subject to the following conditions: 1. Home Warrant - The provisions of Chapter 8-6 of the Municipal Code Home Warranty Ordinance) shall apply to any person, firm or corporation selling or offering for sale within the project three or more dwelling units --not previously occupied for residential purposes—during any 12 -month period. 2. CC&R's - A set of Conditions, Covenants and Restrictions (CC&R's) shall be prepared and implemented for the project. The CC&R's 'shall include at a minimum: (1) Provisions on the use and maintenance, by the homeowners' association, of recreation areas, other common areas, and slopes. (2) The prohibition of radio or television antennas projecting above any roof eaves (pursuant to Section 9-3.609 of the Municipal Code). The CC&R's shall be approved by the City Attorney prior to approval of a final map. Future revisions to the CC&R's shall be submitted to the City for review and approval. 3. Grading - A preliminary grading plan for the project shall be �j Said plan shall be designethe d o0 conform tmmission o the follior to owing criteria: oval of a final map. a. The grading plan shall incorporate variable slopes on all major manufactured slopes which simulate natural topography. b. Tops and toes of slopes shall be meandering such that straight edges are not created. C. Tops and toes of slopes shall be vertically rounded. The major landform features shall be reflected in the grading plan. d. When blending manufactured slopes to natural topography, the grading plan shall emphasize the underlying natural area. For example, if a cut slope is across a knoll the graded slope contours shall be bent to simulate the previous natural element (knoll); with ravines, the manufactured slope shall use conclave contouring that would visually simulate a ravine. Architecture - Architectural elevations shall be approved by the Planning ommission prior to approval of a final map. S. Landscape and Wall Plans - Landscape, street tree, and fence/wall plans shall be prepared and implemented for the entire project. Preliminary -2- JL V 07 9 • landscaping, street tree, fence/wall plans shall be approved by the ---"P Planning Commission prior to approval of a final map. Following such plan approval, final working drawings shall be approved by the Director of Community Planning and Development. 6. Landscaping Installation - Landscaping shall be installed as follows: a. Erosion -control landscaping for all manufactured slopes shall be installed immediately after the certification of rough grading by the City. b. Street trees and all other non -erosion -control landscaping shall be installed in accordance with a landscape phasing plan approved by the Director of Community Planning and Development. No final building inspection shall be conducted for any dwelling unit within a given phase until all landscaping has been installed for that phase and approved by the Department of Community Planning and Development. Landsca a Maintenance and Maintenance Easements - The developer shall responsible for adequately installing and. maintaining all landscaping until such maintenance may be assumed by the homeowners' association. An open space maintenance easement shall be created over all major slopes that are within residential lots. Landscaping on said slopes shall be maintained by the homeowners' association. —> 8. Street Names - Street names shall be approved by the Director of ommunity Tanning and Development prior to approval of a final map. 9. Vehicular Access Rights - Vehicular access rights to all primary, secondary, and commuter highways shall be released and relinquished to the City except at street intersections. 10. Public Streets - The following public streets shall be designed, constructed, and dedicated in accordance with Section 9-4.103 of the Municipal Code: "A" Street 11. Private Streets - The following private streets shall be designed and constructe m accordance with Section 9-4.103 of the Municipal Code: "H"r 01"r "J", "K", "K-1", "L", "M"r "N", ro", "P". "Q"+ "R", "5", "T", "U", "V", "W", "X", "Y", and "Z" Streets. 12. Validation of Approval - All conditions of approval of C gx-y len ed and the Arun/Composite De_ veloment Plan for Area D shall apply to this Vesting Tentative Tract Map appro�. -3- 110 E F 13. Slope Warrant - The developer shall participate in the City's Slope Warranty Program. PASSED, APPROVED, AND ADOPTED this 6th day of June , 1989. ATTEST: STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss CITY OF SAN JUAN CAPISTRANO ) I, MARY ANN HANOVER, 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. 89-6-6-5 adopted by the City Council of the City of San Juan Capistrano, California, at a regular meeting thereof held on the 6th day of June , 1989, by the following vote: AYES: Councilmen Schwartze, Friess, Bland and Mayor Hausdorfer NOES: None ABSENT:, Councilman Buchheim (SEAL) MARY AN , CITY L K -4- "WWI � - -wwm STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss CITY OF SAN JUAN CAPISTRANO ) I, MARY ANN HANOVER, 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. 89-6-6-5 adopted by the City Council of the City of San Juan Capistrano, California, at a regular meeting thereof held on the 6th day of June , 1989, by the following vote: AYES: Councilmen Schwartze, Friess, Bland and Mayor Hausdorfer NOES: None ABSENT:, Councilman Buchheim (SEAL) MARY AN , CITY L K -4- 0 0 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. AFFIDAVIT OF POSTING CITY OF SAN JUAN CAPISTRANO ) MARY ANN HANOVER, being first duly sworn, deposes and says: 111 That she is the duly appointed and qualified City Clerk of the City of San Juan Capistrano; That in compliance with State laws of the State of California and in further compliance with City Resolution No. 83-12-20-3 and on the 13th day Of ,T„ne. , 1989, she caused to be posted: RESOLUTION NO. 89-6-6-5 , being: APPROVING VESTING TENTATIVE TRACT MAP 13437 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, APPROVING VESTING TENTATIVE TRACT MAP 13437 (GLENFED) in three (3) public places in the City of San Juan Capistrano, to wit: City Hall; Old Fire Station Recreation Complex; Orange County Public Library. ORD. NO. Cl-ECK LIST RES. NOO I-G_G- 5 Mayor has signed Clerk has signed City Seal stamped —77' All blanks typed y� "Absent" "Noes" "Abstain" Copies sent to p� Qrd. dist. file mailcern ied 0,nVL(d- Legal Publication ordered to be published (date) No. Printed copies required /0 Remarks MARY ANN Ai VER, CITY CLF -RK c -n Juan C pistrano, California -5-