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21-1005_LENNAR HOMES OF CALIFORNIA, INC_Grading Surety AgreementL) ORIGINAL GRADING SURETY AGREEMENT THIS AGREEMENT is made by and between the CITY OF SAN JUAN CAPISTRANO, a municipal corporation, hereinafter referred to as the "City," and LENNAR HOMES OF CALIFORNIA, INC, hereinafter referred to as "Developer." WITNESSETH WHEREAS, City will issue Precise Grading Permit No 821-0669 to Developer to construct certain designated improvements upon a portion of that real property located at 32442 Combine Drive, San Juan Capistrano, CA, such work being commonly referred to as THE FARM ("Project'). WHEREAS, San Juan Capistrano Municipal Code Section 8-2.08 requires the posting of financial security to secure the faithful performance for the grading and installation of related improvements connected with issuance of grading permits including the construction of drainage and protection devices and any other corrective work to remove and eliminate engineering and geological hazards. WHEREAS, San Juan Capistrano Municipal Code Section 8-2.09 authorizes the Building Official to require additional bonding as security to ensure against adverse aesthetic impacts arising from incomplete grading and/or improvements from development projects which have not been completed. WHEREAS, the Building Official finds that the proposed Project site is highly prominent and visible to the community, has unique topographic features or involves 'substantial grading of slope areas. NOW, THEREFORE, in consideration of the premises and promises hereinafter contained, City and Developer agree as follows: 1. Developer's Improvements Obligations. Developer shall, at its sole cost and expense, provide and furnish all labor, materials and equipment for the Project depicted on the plans entitled "Precise Grading Plan for the Farm Tract 19063 (HARVEST PARK)" as approved by the City Engineer, on September 27, 2021. The grading permit and plans, which describe all the work to be constructed pursuant to this Agreement, are on file in the office of the City's Building Official. Grading Surety Agreement, ,Permit #1321-0669 Page 1 of 10 61147.021001248357412 2. Developer's Security. Developer shall provide a cash deposit, irrevocable letter of credit, certificate of deposit or a bond by a duly authorized corporate surety subject to the approval of the City Attorney, or as approved by the City Engineer, to secure Developer's improvement obligations required under this Agreement ("Security"). The amount of the Security shall be $69,294 for all onsite grading improvements as approved by the City Engineer. This Security shall also serve as security for restoration of the Project site. A copy of the performance bond form, as approved by the City Attorney, is attached hereto as Exhibit "C" and incorporated herein by this reference. Copies of approved irrevocable letter of credit forms and certificate of deposit form are available upon request. 3. Completion of Improvements. To ensure the protection of the public safety, health and welfare, Developer shall construct the Project in accordance with the schedule as set forth in Exhibit "A", and the conditions as set forth in Exhibit "B". Exhibits "A" and "B" are attached hereto and incorporated herein by this reference. 4. Developer Default. In the event Developer does not complete the required improvements, including erosion and silt control measures within the time required, using Best Management Practices (BMP) in implementing a Water Quality Management Plan in full compliance with Orange County National Pollutant Discharge Elimination System (NPDES) Storm Water Implementation Agreement and San Juan Capistrano Municipal Code Section 8-14, or abandons the Project site, or suspends work for more than twenty (20) working days without written approval of the City, City shall have the right to immediately declare a default and to make demand on Developer's surety for performance of all obligations under this Agreement. 5. Restoration of Site. San Juan Capistrano Municipal Code Section 8-2.09 allows the City to require bonding as security to ensure against adverse aesthetic impacts arising from incomplete grading, drainage and/or improvements which includes illicit non - storm drain water discharge. The purpose of this security shall be to restore the property to a safe and acceptable condition in the event the Developer defaults. This restoration shall include but not be limited to the following: A. Dismantle and/or demolish improvements; B. Grade property to its original contours as shown on the approved grading plans. C. Remove all debris and construction materials from the site; and Grading Surety Agreement, Permit #B21-0669 Page 2 of 10 61147.02100124835741.2 D. Install erosion and silt control devices, including hydroseeding, to insure a uniform vegetative cover, or equivalent stabilization measures which include the use of such Best Management Practices as blankets, fiber matrices, catch basin filters, or other erosion resistant soil coverings or treatments to satisfaction of the Director of Engineering and Building. E. Protection and repair of existing public street, water, sewer and storm drain system(s). 6. Attorney's Fees. Developer agrees to pay City such sum as the court may judge as reasonable for the legal services of an attorney representing the City in an action brought to enforce or interpret the obligations of this agreement, and such sum shall be made a part of any judgment in such action against Developer if such action is determined in favor of the City. 7. Develoaer's Work in Safe Condition. Developer shall perform all work in a safe workmanlike manner and shall take such precautions as may be necessary to warn and protect the public from any dangerous condition caused by the Project. 8. Liability City, its officials, officers, employees, agents, and volunteers shall not be liable for any injury to persons or property occasioned by reason of the acts or omissions of Developer, its agents or employees in the performance of this Agreement. Developer further agrees to protect, indemnify, and hold harmless City, its officials, officers, employees, agents, and volunteers from any and all claims, demands, causes of action, liability or loss of any sort, because of, or arising out of, the alleged acts or omissions of Developer, its agents or employees in the performance of this Agreement, including all claims, demands, causes of action, liability, or loss because of, or arising out of, in whole or in part, the design or construction of the Project. This indemnification and agreement to hold harmless shall extend to injuries to persons and damages or taking of property resulting from the design or construction of said Project, and in addition, to adjacent property owners as a consequence of the diversion of waters from the design or construction of drainage systems, streets and other improvements. SIGNATURES ON FOLLOWING PAGE Grading Surety Agreement, Permit #B21-0669 Page 3 of 10 61147.02100\248357412 SIGNATURE PAGE TO GRADING SURETY AGREEMENT BETWEEN THE CITY OF SAN JUAN CAPISTRANO AND LENNAR HOMES OF CALIFORNIA, INC IN WITNESS WHEREOF, the parties have executed this Agreement as of UL-bbel( � 20-;J� CITY OF SAN 4UAN CAPISTRANO LENNA OF CALIFORNIA, INC Ronald Shanks, Building Official Printed Name Dated: ��/ 5 �7� ''1I Title �t�}},c�lzc� A!�-- Approved as to Form: By: 3 By:— City ttomey Printed Grading Surety Agreement, Permit #B21-0669 Page 4 of 10 61147.02100124835741.2 EXHIBIT"A" SCHEDULE FOR COMPLETION OF IMPROVEMENTS Task Completion Date 1. Complete rough grading 2. Start installation of onsite Storrs drain work 3. Start & Finish Soil Stabilization work 4. Curb & Gutter work 5. Walks, Railings & Fences 6. A/C Paving Grading Surety Agreement, Permit #B21-0669 Page 5 of 10 61147.021001248357412 October 29, 2021 May 19, 2021 September 15, 2021 November 30, 2021 August 15, 2024 December 31, 2021 EXHIBIT "B" CONDITIONS FOR COMPLETION OF IMPROVEMENTS The grading for this project shall be in strict conformance with the grading plans as well as the San Juan Capistrano Municipal Code. 2. Grading operations shall commence within sixty (60) calendar days after issuance of Grading Permit Winter grading will be conducted in strict accordance with the dynamic erosion and silt control plan submitted by the Developer, and approved by the City. This erosion and silt control plan reflects erosion and silt mitigation measures for expected grading conditions as the work progresses through the winter season and shall not be amended except with the permission of the City. In the event Developerdoes not wish to implementwinter grading, or permission for winter grading is rescinded, static erosion and silt control plans reflecting current conditions of grading shall be submitted within ten (10) days of cessation of work. These plans shall: 1. Identify all pollutant sources including sources of sediment that may affect the quality of storm water discharges associated with the construction activity. 2. Include the erosion and sediment control planting and hydroseeding to insure a uniform vegetative cover or equivalent stabilization measures which include the use of such Best Management Practices as blankets, fiber matrices, catch basin filters or other erosion resistant soil covering or treatments to the satisfaction of the City Engineer. 3. Suspension in excess of twenty (20) working days of work authorized by approved grading plans and grading permit for subject property, including erosion and sediment control measures and landscaping and irrigation, shall constitute default of this agreement unless Developer has received approval from the City authorizing a suspension in excess of twenty (20) days. 4. The supervising civil engineer and soils engineer shall file biweekly progress reports of all grading operations with the Building Official. An interim compaction report, for that work completed at the time work is suspended for the rainy season, shall be Grading Surety Agreement, Permit #B21-0669 Page 6 of 10 61147.021001248357412 filed with the Building Official. This interim report shall conform to the grading code requirements for final compaction reports. 5. Contractor shall control dust to the satisfaction of the Building Official or his deputy. During grading, Contractor shall keep water truck on site and dampen work area, grounds, and loaded trucks. 6. Grading operations suspended during the rainy season shall be resumed no later than 15 days from date of suspension termination unless the Developer has received approval from the City authorizing a suspension in excess of fifteen (15) days. 7. Installation of interim erosion and sediment control devices and systems shall commence within seven (7) days after rough grade certification has been approved by the Building Official and must be completed within fifteen (15) days of rough grade certification. Final erosion and sediment controls devices, planting, landscaping and irrigation systems shall be installed prior to final inspection of the grading permit. 8. All work shall be performed in strict observation of the Hours of Operation in accordance with San Juan Capistrano Municipal Code Section 8-1.03. 9. Contractor shall adhere to conditions of haul route permit and encroachment permit issued by the City Engineer. 10. Parking for construction crew is to be on-site. 11. Exoneration of Security: Developer's security shall be reduced to 90% upon signoff of precise grading permit. The remaining 10% of the security given by Developer shall not be released until the expiration of the warranty period and until any claims filed during the warranty period have been settled. Nothing herein shall limit the City's rights or the Developer or surety's obligations under this Agreement 12. Warranty Period: 1 year from permit signoff by City. Grading Surety Agreement, Permit #B21-0669 Page 7 of 10 61147.02100'248357412 i BOND NO. 800117916 INITIAL PREMIUM: $151.001 annum SUBJECT TO RENEWAL The Farm (Harvest Park) B21-0669 GRADING SURETY AGREEMENT PERFORMANCE BOND KNOW ALL MEN BY THESE PRESENTS: WHEREAS the City of San Juan Capistrano ("City") and Lennar Homes of California, Inc. ("Principal"), have executed an agreement for work consisting of, but not limited to, the furnishing of all labor, materials, tools, equipment, services, and incidentals for all grading and installation of related improvements for Tract Map Nos. 19063 ("the Work"); WHEREAS, the Work to be performed by Principal is more particularly set forth in that certain Grading Surety Agreement dated 20 21 ("Agreement"), which Agreement is incorporated herein by this reference; and WHEREAS, Principal is required by the Agreement to provide a good and sufficient bond for performance of the Agreement, and to guarantee and warranty the Work performed thereunder. NOW, THEREFORE, Principal and Atlantic Specialty Insurance Company as surety ("Surety"), a corporation organized and existing under the laws ofthe State of New York , and duly authorized to transact business under the laws of the State of California, are held and firmly Sbdy thousand two hundred bound unto City in the sum of ninety-four and 001100 dollars (Uo,294.00), for which amount well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors or assigns, jointly and severally, firmly by these presents. THE CONDITION OF THIS OBLIGATION is such, that if Principal, his or its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions, agreements, guarantees, warranties and provisions in the Agreement and any alteration thereof made as therein provided, on his or their part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their intent and meaning, and shall indemnify and save harmless City, its officers, employees, and agents, as therein stipulated in the Agreement, then this obligation shall become null and void; otherwise it shall be and remain in full force and effect. As part of the obligation secured hereby, and in addition to the face amount specified therefor, there shall be included costs and reasonable expenses and fees, including reasonable attorney's fees, incurred by City in successfully enforcing such obligation, all to be taxed as costs and included in anyjudgment rendered. Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration, or addition to the terms of the Agreement, or to any plans, profiles, and specifications related thereto, or to the Work to be performed thereunder, shall in any way affect its Grading Surety Agreement, Permit #B21-0517 Page 8 of 10 61147.02100X24835741.2 obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration, or addition to the terms of the Agreement, or to the Work or to the specifications. IN WITNESS WHEREOF, the seal, if any, and signature of the Principal is hereto affixed, and the corporate seal and the name of the Surety is hereto affixed and attested by its duly authorized Attomey-in-Fact at Irvine. California this 15th day of September 2021 . Lennar Homes of California, Inc., a Califomia corporation Principal By: V `� - V vcc6 President Atlantic Specialty Insurance Company Surety By: " 4) Attorney -in -Fact Mechelle Larkin (print name) (print name) NOTE: APPROPRIATE NOTARIAL ACKNOWLEDGMENTS OF EXECUTION BY PRINCIPAL AND SURETY, AND A COPY OF THE POWER OF ATTORNEY TO LOCAL REPRESENTATIVES OF THE SURETY MUST BE ATTACHED TO THIS BOND. Grading Surety Agreement, Permit #B21-0517 Page 9 of 10 61147.02100124835741.2 CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA ) COUNTY OF ORANGE ) On September 20, 2021 before me, Peggy R. Yazloff, Notary Public, personally appeared Brian K. Bencz who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. PEGGY R.YAZLGFF WITNESS my hand and official seal. b%My COMM. #2323881 A Notary Public - California _ Orange County � /�j Comm. Expires Mar. 12, 2024 Signature 7.�/,g,�,� K, U,a.!`a�A/ (Seal) CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Orange On SEP 15 1011 before me, Kathy R. Mair, Notary Public DATE [Name of Notary Public and Title "Notary Public'I personally appeared Mechelle Larkin ---------------------------------- [Name($) of S,gner($)I who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/theif authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(), or the entity upon behalf of which the person(&) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. .�, RI.TW R. µAIR Notary Public • California Orange County Commission M 2355508 sty Comm. Expires µay 22, 2025 Place Notary Seal Above WITNESS my hand and official seal. V�ebq- VA, Signature of tary Public OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Number of Pages: Signer's Name: Mechelle Larkin Signer's Name: ❑ Corporate Officer — Title(s): ❑ ❑ Partner — ❑ Limited ❑ General ❑ ❑ Individual ® Attorney -in -Fact ❑ ❑ Trustee ❑ Guardian or Conservator ❑ ❑ Other: ❑ Signer Is Representing: Corporate Officer — Title(s): Partner — ❑ Limited ❑ General Individual ❑ Attorney -in -Fact Trustee ❑ Guardian or Conservator Other: Signer is Representing: One Beacon I NSU RANCE GROUP Power of Attorney KNOW ALL MEN BY THESE PRESENTS, that ATLANTIC SPECIALTY INSURANCE COMPANY, a New York corporation with its principal office in Plymouth, Minnesota, does hereby constitute and appoint: Kari Davis, Tenzer V. Cunningham, Brenda Wong, Martha Gonzales, Joaquin Perez, My Hua, Michelle Larkin, Kathy R. Mair, each individually if there be more than one named, its true and lawful Anomey-in-Fact, to make, execute, seal and deliver, for and on its behalf as surety, any and all bonds, recognizances, contracts of indemnity, and all other writings obligatory in the nature thereof; provided that no bond or undertaking executed under this authority shall exceed in amount the sum of: sixty million dollars ($60,000,000) and the execution of such bonds, recognizances, contracts of indemnity, and all other writings obligatory in the nature thereof in pursuance of these presents, shall be as binding upon said Company as if they had been fully signed by an authorized officer of the Company and sealed with the Company seal. This Power of Attorney is made and executed by authority of the following resolutions adopted by the Board of Directors of ATLANTIC SPECIALTY INSURANCE COMPANY on the twenty-fifth day of September, 2012: Resolved: That the President, any Senior Vice President or Vice -President (each an "Authorized Officer") may execute for and in behalf of the Company any and all bonds, recognizances, contracts of indemnity, and all other writings obligatory in the nature thereof, and affix the seal of the Company thereto; and that the Authorized Officer may appoint and authorize an Attomey-in-Fact to execute on behalf of the Company any and all such Instruments and to affix the Company seal thereto; and that the Authorized Officer may at any time remove any such Attorney -in -Fact and revoke all power and authority given to any such Attomey-m- Fact. Resolved: That the Attomey-in-Fact may be given full power and authority to execute for and in the name and on behalf of the Company any and all bonds, recognizances, contracts of indemnity, and all other writings obligatory in the nature thereof, and any such instrument executed by any such Attomey-in-Fact shall be as binding upon the Company as if signed and sealed by an Authorized Officer and, further, the Attomey-in-Fact is hereby authorized to verify any affidavit required to be attached to bonds, necognizances, contracts of indemnity, and all other writings obligatory in the nature thereof. This power of attorney is signed and sealed by facsimile under the authority of the following Resolution adopted by the Board of Directors of ATLANTIC SPECIALTY INSURANCE COMPANY on the twenty-fifth day of September, 2012: Resolved: That the signauue of an Authorized Officer, the signature of the Secretary or the Assistant Secretary, and the Company seal may be affixed by facsimile many power of attorney or many certificate relating thereto appointing an Attomey-in-Fact for purposes only of executing and sealing any bond, undertaking, recognizance or other written obligation in the nature thereof, and any such signature and seal where so used, being hereby adopted by the Company as the original signature of such officer and the original seal of the Company, to be valid and binding upon the Company with the same force and effect as though manually affixed. IN WITNESS WHEREOF, ATLANTIC SPECIALTY INSURANCE COMPANY has Caused these presents to be signed by an Authorized Officer and the seal of the Company to be affixed this twenty-ninth day of April, 2019. „^�ZY INS"•.. aaG�GGPPOAgIre9n: ="t SEAL m= ///,,/t��/t,�O o By STATE OF MINNESOTA •'••.1b"'*.. ". Paid J. Brehm, Senior Vice President HENNEPIN COUNTY µ' On this twenty-ninth day of April, 2019, before me personally came Paul J. Brehm, Senior Vice President of ATLANTIC SPECIALTY INSURANCE COMPANY, to me personally known to be the individual and officer described in and who executed the preceding instrument. and he acknowledged the execution of the same, and being by me duly swom, that he is the said officer of the Company aforesaid, and that the seal affixed to the preceding instrument is the seal of said Company and that the said seal and the signature as such officer was duly affixed and subscribed to the said instrument by the authority and at the direction of the Company. r MANDALY ANN LAMERE NOTARY PUBLIC • MINNESOTA My Commission Expires January 31, 2023 Notary Public L the undersigned, Secretary of ATLANTIC SPECIALTY INSURANCE COMPANY, a New York Corporation, do hereby certify that the foregoing power of attorney is in full force and has not been revoked, and the resolutions set forth above are now in force. Signed and sealed. Dated 15th day of September 2021, This Power of Attorney expires January 31, 2023 Em: SEAL •.m' .iy6 ryFW YO?.}.ay�° yaL7 Christopher V. Jerry, Secretary