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15-0317_TNHC SAN JUAN, LLC_Agenda Report_D13
3/17/2015 D13nfi City of S n uan Capistrano A Report TO: Karen P. Br u C er FROM: Keith Van Der Maa en, P.E., Public Works and Utilities Director Prepared by: Steve Kooyman, P. E., Assistant Public Works Director O�'L DATE: March 17, 2015 SUBJECT: Consideration of Approval of a Final Map, Subdivision Improvement Agreement, and Agreement Establishing a Soils Subsidence Remediation Program for Tract 16146 (A Portion of Tentative Tract Map 16146) and Tract 17655 (The New Home Company) (Oliva Housing Tract, Tract 16146, 9 Residential Lots and Tract 17655, 9 Residential Lots) RECOMMENDATION: By motion, 1. Approve the Final Map for Tract No.16146 (a portion of Tentative Tract Map 16146) and Tract 17655 as both maps conform to the requirements set forth in the Subdivision Map Act and the approved Tentative Tract Map 16146 and 17655 conditions; and, 2. Authorize the City Engineer and the City Clerk to execute the Final Map for Tract 16146 (a portion of Tentative Tract Map 16146) and the Final Map for Tract 17655; and, 3. Authorize the Mayor to execute the Subdivision Improvement Agreements for the Final Map for Tract 16146 (a portion of Tentative Tract Map 16146) and Final Map for Tract 17655 and accept the corresponding securities; and, 4. Direct the City Clerk and City Engineer to forward the Subdivision Improvement Agreements and Final Maps for Tract 16146 (a portion of Tentative Tract Map 16146) and Tract 17655 respectively to the County of Orange Recorder's office for recordation; and, 5. Approve the Agreements Establishing a Soils Subsidence Remediation Program with TNHC San Juan LLC of Tracts 16146 and 17655; and, 6. Direct the City Clerk to forward the Agreements Establishing a Soils Subsidence Remediation Program for Tracts 16146 and 17655 to the County Recorder's office for recordation. City Council Agenda Report March 17, 2015 Page 2 of 6 EXECUTIVE SUMMARY: The Oliva Subdivision is comprised of two (2) Tentative Tract Maps 16146 (31 lots) and 17655 (9 lots) for a total of 40 residential lots, located at 32281 Del Obispo Street (Attachment 1),. On September 2, 2014, the City Council approved a Final Map for Tract 17713 (a portion of TTM 16146) for the first 22 lots. The applicant/subdivider in conjunction with the Scalzo 2003 Trust (Owner) is requesting an approval of the remaining 9 lots of TTM 16146 as Final Map of Tract 16146 (Enclosure 1) and approval of the 9 lots of the Final Map of Tract 17655 (Enclosure 2). The applicant/subdivider has signed the two (2) Subdivision Improvement Agreements (Attachments 2 and 3) for each Tract, posted the proper bonds, paid the appropriate engineering and impact fees, and has signed the two (2) Agreements Establishing Soils Subsidence Remediation Program (Attachment 4 and 5) for each Final Tract Map. Additionally, the applicant/subdivider has submitted a request to change the timing of the recordation for the Covenants, Conditions and Restrictions (CC&R's) to prior to the conveyance of any portion of the Final Tract Map versus with the Final Map recordation. Staff and the City Attorney have reviewed the requested change and have determined that the language provides the same level of compliance with the TTM 16146 and TTM 17655 conditions. This modified language is provided within the Subdivision Improvement Agreements (Attachment 2 and 3) and is further described within the Discussion/Analysis section of this report. The grading and subdivision improvement plans, as well as the two (2) Final Tract Maps, have been reviewed by the City Engineer and were found to be in substantial conformance with the TTM 16146, TTM 17655, and the Subdivision Map Act. Furthermore, all applicable conditions of approval set forth in the City Council Resolution No. 05-12-20-02 with subsequent modifications, clarifications, and amendments by City Council Resolution Nos. 06-07-03-07, 06-11-21-03, 07-04-17-03, 08-09-16-05, 09-03-17-07, and 14-08-19-03 for TTM 16146 and City Council Resolution No. 14-08-19-02 for TTM 17655 have been met (Resolutions available at the City Clerk's office for review). Therefore, based on the findings mentioned above, staff recommends 1) Approving the two (2) Final Tract Maps; 2) Authorizing the City Engineer and the City Clerk to execute the two (2) Final Tract Maps; 3) Authorizing the Mayor to execute the two (2) Subdivision Improvement Agreements for the Final Tract Maps and accept the corresponding securities; 4) Directing the City Clerk and City Engineer to forward the Subdivision Improvement Agreements and Final Tract Maps respectively to the County Recorder's office; 5) Approving the twa (2) Agreements Establishing a Soils Subsidence Remediation Program with TNHC San Juan LLC of Tract 16146 and 17655; and 6) Directing the City Clerk to forward the two (2) Agreements Establishing a Soils Subsidence Remediation Program to the County Recorder's office for recordation. City Council Agenda Report March 17, 2015 Page 3 of 6 DISCUSS[ON/ANALYSIS: On December 20, 2005, the City Council adopted Resolution No. 05-12-20-02 conditionally approving Vesting Tentative Tract Map 16146 for a 31 lot residential subdivision on 17 acres of land which was owned by the Martin R. Scalzo 2003 Trust (Scalzo 2003 Trust). The New Home Company (applicant/subdivider) purchased a portion of the Tentative Tract Map (TTM) 16146 known as the Belladonna Estates in 2013, from the Scalzo 2003 Trust. On September 2, 2014, the City Council approved a Final Map for Tract 17713 (a portion of TTM 16146) for the first 22 lots of TTM 16146. The applicant/subdivider in conjunction with the Scalzo 2003 Trust (Owner) has now requested an approval of the remaining 9 lots of TTM 16146 as Final Map of Tract 16146 (Enclosure 1). Lots 1-4 within Tract Map 16146 are currently owned by the Scalzo 2003 Trust with an option to sell the lots to The New Home Company and Lots 5-9 are owned by the New Home Company. On August 19, 2014, the City Council approved a modification to TTM 16146 with an Addendum to the 2005 City Council adopted Mitigated Negative Declaration (MND) by Resolution No. 14-08-19-03 which deleted several conditions from TTM 16146. There are no modifications required on the Final Map of Tract 16146 from the recently approved City Council Resolution No. 14-08- 19-03. On August 19, 2014, the City Council adopted Resolution No. 14-08-19-02 conditionally approving TTM 17655 for a 9 lot residential subdivision on 4.5 acres of land which was owned by the Scalzo 2003 Trust and the Bullock -Goldstein Family Trust. The Scalzo 2003 Trust owns Lot A, and Lots1-4 and the New Home Company owns Lots 5-9 of TTM 17655. The applicant/subdivider in conjunction with the owner has requested an approval of the 9 lot Final Map of Tract 17655 (Enclosure 2). The Final Map and all project related improvement plans have been reviewed and approved by the City Engineer, which are referenced and included within the Subdivision Improvement Agreements (Attachments 2 and 3). The Development Services Director, City Engineer, and City Attorney have approved the Covenants, Conditions and Restrictions (CC&R's) for Tracts 16146 and 17655 pursuant to the requirements within the Conditions of Approval for both Tentative Tract Maps. However, the applicant/subdivider has requested an administrative change to the timing for the recordation of the CC&R's within the City Council Resolution 05-12-20-02, Condition No. 69 and within City Council Resolution 14-08-19-02, Condition No. 2.22 as follows: Original Language: CC&R's. Prior to final map approval, the applicant shall submit to the Planning Director, City Engineer, and City Attorney for review, and shall obtain the approval for, a set of Covenants, Conditions and Restrictions (CC&R's). Said CC&R's shall be recorded with the final map and shall include, but not be limited to, the following. (ENG) City Council Agenda Report March 17, 2015 Page 4 of 6 Modified Lan ua e: CC&R's. Prior to final map approval, the applicant shall submit to the Director of Development Services, City Engineer, and City Attorney for review, and shall obtain the approval for, a set of Covenants, Conditions and Restrictions (CC&R's). Said CC&R's shall be recorded "prior to the conveyance of any portion of the Final Tract Map" and shall include, but not be limited to, the following: (ENG) This updated language related to the CC&R's is included within the two (2) Subdivision Improvement Agreements. The applicant/developer will provide the final CC&R document to the City prior to submittal to the County for recordation. All other sections within the original City Resolution No. 05-12-20-02 and as modified by City Resolution No. 14-08-19-03, and within City Resolution 14-08-19-02 shall remain in effect. The items listed below have been reviewed and found to be in substantial compliance with the requirements of the Final Tract Maps for Tract 16146 and 17655: 1. Applicable Subdivision fees paid. 2. Final Maps signed by The New Home Company and Scalzo 2003 Family Trustee (Enclosures 1 and 2). 3. Subdivision Improvement Agreements signed by The New Home Company and Martin R. Scalzo, Trustee of The Scalzo Family 2003 Trust (Attachments 2 and 3). 4. Faithful Performance and Labor and Material bonds in the amount of 100% of the costs for: a. Public Water Improvements b. Private Street and Storm Drain Improvements c. Public Sewer Improvements d. Private Landscape and Irrigation Improvements e. Survey Monumentation 5. Two (2) Agreements Establishing Soils Subsidence Remediation Program signed by The New Home Company (Attachments 4 and 5). The City Engineer will sign the Final Map if approved by the City Council and forward the Final Map to the City Clerk for signature and submittal to the County of Orange Recorders office for final County Surveyor processing, signature, and recordation. FISCAL IMPACT: Pursuant to the Tentative Tract Map 16146 Conditions of Approval No. 50, 76, and 80 of the City Resolution 05-12-20-02 and Conditions of Approval No. 2.3 of City Resolution 14-08-19-02, all engineering fees ($33,225) domestic and non-domestic water impact fees ($201,122) and park in -lieu development impact fees ($208,800) totaling $443,147 have been paid. Also, pursuant to Tentative Tract Map 16146 Conditions of Approval No. 71 and 79 of the City Resolution No. 05-12-20-02 and Conditions of Approval No. 2.16 of City Resolution 14-08-19-02, Performance Bonds and Labor and Materials Bonds in the amount of 100% of the Final Map of Tract 16146 (a portion of TTM 16146) and Final Map of Tract 17655 Subdivision Improvements have been posted equaling $1,667,000 under Bond No's. P1302497500201-206. City Council Agenda Report March 17, 2016 Page 5 of 6 ENVIRONMENTAL IMPACT: On December 20, 2005, the City Council approved Tentative Tract Map (TTM) 16146 by City Resolution No. 05-1220-02 with a Mitigated Negative Declaration (MND) for the Belladonna Estates subdivision. On August 19, 2014, the City Council approved a Modification to TTM 16946 with an Addendum to the 2005 City Council adopted Mitigated Negative Declaration (MND) by Resolution No. 14-08-19-03 for the Oliva Subdivision (formerly known as Belladonna Estates). On August 19, 2014, the City Council adopted a MND by Resolution 14-08-19-02 for the Tentative Tract Map 17655 portion of the Oliva Subdivision. This project has been reviewed in accordance with the California Environmental Quality Act (CEQA) requirements and the City's Environmental Administrator has determined that the processing of the two (2) Final Tract Maps with associated Subdivision Improvement Agreements and related items is consistent with the City Council -adopted MND and Addendum for TTM 16146 and MND for TTM 17655. PRIOR CITY COUNCIL REVIEW: Tract Map 16146 • On December 20, 2005, the City Council adopted Resolution No. 05-12-20-02 conditionally approving Vesting Tentative Tract Map 16146, consisting of 31 residential lots on 17 acres of land subdivision for the Belladonna Estates. • On July 3, 2006, the City Council adopted Resolution No. 06--07-03-07, which related to extending time to meet and confer on the conditions of approval for the southwesterly access road responsibilities between the developer, City and adjacent land owners. • On November 21, 2006, the City Council adopted Resolution No. 06-11-21- 03, which closed the meet and confer condition and deleted this from the TTM 16146 conditions. • On April 17, 2007, the City Council adopted Resolution No. 07-04-17-03, which modified some of the conditions of approval, approved a memorandum of understanding between the City and the Scalzo Family Trust, and provided a one year extension to the TTM 16146. • On September 16, 2008, the City Council adopted Resolution No. 08-09-16- 05, which modified several conditions of approval for TTM 16146. • On March 17, 2009, the City Council adopted Resolution No. 09-03-17--07, which clarified condition 77 of the TTM 16146. + On August 19, 2014, the City Council adopted Resolution No. 14-08-19-03, which deleted several conditions from TTM 16146. City Council Agenda Report March 17, 2015 Page 6 of 6 Tract Map 17655 ® On August 19, 2014, the City Council adopted Resolution No. 14-08-19-02, conditionally approving Tentative Tract Map 17655, consisting of 9 residential lots on 4.5 acres of land subdivision for the Oliva Subdivision. COMMISSION/COMMITTEE/BOARD REVIEW AND RECOMMENDATIONS: On July 8, 2014, the Planning Commission adopted a Resolution recommending the City Council adoption of a Mitigated Negative Declaration Addendum, approval of a modification to Tentative Tract Map (TTM) 16146, and approval of a modification to Architectural Control (AC) 13-028. On July 8, 2014, the Planning Commission adopted a Resolution recommending the City Council adoption of a MND, approval of a TTM 17655, and approval of an Architectural Control (AC) 13-03. NOTIFICATION: The New Home Company Donna M. Ostermiller and Frederick Scalzo County of Orange, Surveyors Office Hunsaker and Associates ATTACHMENTS: Attachment 1 — Vicinity Map Attachment 2 — Subdivision Improvement Agreement for Tract 16146 Attachment 3 — Subdivision Improvement Agreement for Tract 17655 Attachment 4 —Agreement Establishing Soils Subsidence Remediation Program for Tract 16146 Attachment 5—Agreement Establishing Soils Subsidence Remediation Program for Tract 17655 ENCLOSURES: Enclosure 1 — Final Map of Tract 16146 Enclosure 2 — Final Map of Tract 17655 VIA 0 o fS7•ELITA Qs 9 QPS Q U� 2�OP at` V�q0 Cq o. CALLE R CA DO p lF9l��s�'Fq �PooS FCA`�(gN TRACT 17655 eP�\T < r �° F0 JSP C TRACT 17713 QP5``o.>a PP TRACT 16146 ° Legend 'OggfC S'( Road Class 0 — M.11.1 sv.m 3p NgKFR Fpm V0�\Se L-1 Si et DR �Q. � miers�.m '� � cny Douna.ry Dd e ao C MPq ss 0 iso 3W s.0 G VIq I V POSITIVA w Nf2 r t P�RPL ;4 PSAGELN Pie° _ i D c�( 0 CHARRO DR c o w \\c � PRaeci iounory w} U Q O Y DWA DEVELOPMENT TRACTS COMNO DE1AMON "' a z a CAMINO DEL AVION w o sra„e 1 e �•-r• 4�IJ Q� AVENIDA_CABRILLO_.____¢ OLIVA DEVELOPMENT TRACTS VICINITY MAP ATTACHMENT RECORDING REQUESTED BY: City of San Jean Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Maria Morris, CMC, City Clerk City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Exempt from Recording Fees: Gov Code 27383 & 6103 City of San Juan Capistrano This Space for Recorder's Use Only SUBJECT: FINAL MAP of TRACT NO. 16146 (A PORTION OF TENTATIVE TRACT MAP 16146) THIS AGREEMENT is made this " day of March 2015, between the CITY OF SAN JUAN CAPISTRANO, a municipal corporation, State of California, hereinafter referred to as "City" and Donna M. Ostermiller and Frederick Scalzo as co -trustees of the Martin R. Scalzo Family 2003 Trust, duly qualified to conduct business in the State of California, whose principal place of business is 19480 Calle Teresa, Murrieta, CA 92562 (hereinafter referred to as "Owner") and TNHC SAN JUAN LLC, a Delaware limited liability company, duly qualified to conduct business in the State of California, whose principal place of business is 85 Enterprise, Suite 450, Aliso Viejo, CA 92656, (hereinafter referred to as "Subdivider"), concerning Final Map of Tract 16146 (a portion of Tentative Tract Map 16146) for the OLIVA SUBDIVISION (hereinafter referred to as "Subdivision"); the Final Map of which was filed with the County of Orange on the day of , 2015. -cif WHEREAS, the application by the Scalzo Family Trust for approval of Tentative Tract Map No. 16146 was conditionally approved on December 20, 2005, by City Council Resolution No. 05-12-20-02, as modified or amended by City Council Resolution Nos, 06- 07-03-07, 06-11-21-03, 07-04-17-03, 08-09-16-05 and 09-03-17-07; and, WHEREAS, Owner is the owner of a portion of the land depicted in Tentative Tract Map No. 16146, generally described as that certain parcel of land situated in the City of San Juan Capistrano, Orange County, set forth on the Final Map of Tract No. 16146 (Lot 1, ATTACHMENT 2 and the majority of lots 2-4) being that portion of Parcel 4 entitled "The Remainder Parcel" of Parcel Map No. 97-225 per map filed in book 315 pages 21 through 23, (hereinafter, the "Owner Property"), and Subdivider proposes to do and perform certain works of improvement on the Owner Property within the Subdivision as hereinafter set forth; and, WHEREAS, Subdivider is the owner of a portion of the land depicted in Tentative Tract Map No. 16146, generally described as that certain parcel of land situated in the City of San Juan Capistrano, Orange County, set forth on the Final Map of Tract No. 16146 (north-easterly portion of Lots 2-4) being that portion of Parcel 4 of Parcel Map No. 97-225 per map filed in book 315 pages 21 through 23, (hereinafter, the "Subdivider Property"), and Subdivider proposes to do and perform certain works of improvement on the Subdivision Property within the Subdivision as hereinafter set forth; and, WHEREAS, Subdivider and Owner have entered into a Sales Agreement and Escrow Instructions dated March 4, 2013, for the Subdivision; and, WHEREAS, City desires to assure that said proposed improvements will be done in a good and workmanlike manner and in accordance with the laws now in force and effect in the City of San Juan Capistrano, California, the terms and conditions of which are incorporated herein by reference; and, WHEREAS, Subdivider declares that it is familiar with the pertinent regulations contained in the City's Municipal Code and in the Subdivision Map Act (Government Code Sections 66410 to 66500) and agrees to comply therewith; and, WHEREAS, the Final Map of Tract No. 16146 prepared in accordance with the City's Subdivision Ordinance, has been filed by Subdivider with City for approval by the City Council; and, WHEREAS, the application by TNHC San Juan LLC, a Delaware limited liability company for modifications to Tentative Tract Map No. 16146 was conditionally approved on August 19, 2014, by City Council Resolution No. 14-08-19-03 which deleted previously - imposed Conditions of Approval No's. 54, 60, 69 g, and 69 h of City Resolution No. 05-12- 20-02, and Conditions of Approval No's. 7 and 8 of City Resolution No. 07-04-17-03; and; WHEREAS, the timing for the recordation of the Covenents, Conditions, and Restrictions (CC&R's) within City Resolution No. 05-12-20-02 Condition of Approval No. 69 was changed from prior to the Final Map to prior to the conveyance of any portion of the Final Tract Map as conditionally approved on September 2, 2014, by the City Council, NOW THEREFORE, in consideration of the approval and acceptance by the City Council of City of said Final Map of Tract No, 16146 and the acceptance of easements therein offered for dedication for street and other public purposes and the covenants herein contained, the parties hereto mutually covenant and agree as follows: IN AGREEMENT 1. General Requirements: Subdivider shall comply with all the conditions of approval that are applicable to the Final Map of Tract No. 16146 set forth in City Council Resolution No. 05-12-20-02, as modified or amended by Resolution Nos. 06-07-03-07, 06-11-21-03, 07-04-17-03, 08-09-16-05, 09- 03-17-07, 14-08-19-03, and the modification to Condition No. 69 of City Resolution 05-12- 20-02., which changes the timing of the recordation of the CC&R's to prior to the conveyance of any portion of the Final Tract Map and shall, at its own cost and expense, provide all required tests, design work, equipment, materials and labor in order to make or cause to be made all those works of improvement in the Subdivision required by Title 9 Sections 9-4.101 through 9-4.405 (Subdivisions) of the City Municipal Code (hereinafter referred to as "Code") and shown or described in the improvement plans, specifications and cost estimates entitled, "Improvement Plan Tract No. 17655 for Street Improvements, which were approved by the City Engineer on March 2, 2015, and "Improvement Plan Tract No.17655 for Sewer and Water Improvements", which were approved by the City Engineer on February 24, 2015, and the "Landscape Construction Documents for Oliva" accepted by the City Engineer on January 7, 2015. The Improvements within said Improvement Plans with the associated costs of improvements set forth in Exhibit "A" (collectively, the "Works of Improvement"), shall be completed to the satisfaction of the City Engineer. Such Works of Improvement shall include all items depicted within Exhibit "A", and include, the placement of curb markers at all proposed street catch basin inlet structures in accordance with the National Pollution Discharge Elimination System (NPDES) requirement. Attached hereto is Exhibit "A", marked "Works of Improvement Certification of Partial Completion of Subdivision Improvements which is incorporated herein and made by reference a part hereof. The Exhibits describe quantities, units and costs associated with the improvements to be made. Furthermore, said cost of the Works of Improvement are included within the Subdivision Improvement Agreement Exhibit `A' for Final Map of Tract 17655 which is incorporated herein and made by reference a part hereof. 1.1 Off -Site Improvements — Del Obispo Widening Subdivider shall comply with Resolution No. 05-12-20-02 Condition No. 1 for TTM 16146 with respect to the design and construction of Del Obispo Street Widening and Improvements. If the Subdivider desires to receive credit against the project's fees required for the Capistrano Circulation Fee Program (CCFP) for the applicable CCFP costs, he/she shall provide a written request for such condition prior to recordation of the Final Tract Map 16946. Furthermore, if the Subdivder provides the written request to invoke the CCFP credit he/she shall provide full payment documentation of the construction costs associated with the Works of Improvement as described within the Subdivision Improvement Agreement for Final Map of Tract 17713 (a portion of Tentative Tact Map 16146) Exhibit H and as depicted within the plans entitled "Improvement Plans for Street Improvements (Public) Widening of Del Obispo Street" to the City Engineer for review and acceptance. No CCFP fee credit will be approved until the construction payment documents have been reviewed and accepted by the City Engineer. The maximum CCFP fee credit that can be received by the Subdivider for this Final Map of Tract 16146 is based on 9 lots multiplied by the current CUP fee for a single DU at $7,387 (pursuant to City Resolution 02-05-21-02). 2. Security: A. Subdivider shall, at all times beginning with the execution of this agreement, guarantee Subdivider's performance of this agreement by providing the City with the following security instruments (the "Security Instruments"), as required by the State Subdivision Map Act, on forms approved by the City for the purposes and in the amounts as follows: (i) A Faithful Performance Bond to ensure faithful performance of this agreement in regard to said improvements in the amount of 100% of the estimated cost of construction. of the improvements as shown in Exhibit "A"; and (ii) A Labor and Materials Bond to secure payment to any contractor, subcontractor, persons renting equipment or furnishing labor or materials for the improvements required to be constructed or installed pursuant to this agreement in the additional amount of 100% of the estimated cost of construction of the improvements as shown in Exhibit °A"; and (iii) A Subdivision Monument Bond in the amount of 100% of the estimated cost of setting subdivision monuments as shown in Exhibit "A." B. In addition to the security instruments referenced in Paragraph 2(A) above, Subdivider shall provide to the City the following Security Instruments: (i) Prior to the City's final acceptance of the Works of Improvement and recordation of a Notice of Completion, Subdivider shall provide to the City a Warranty Bond for Works of Improvement warranting the accepted Works of Improvement for a period of one (1) year following said acceptance against any defective work or labor done or defective material furnished. The amount of such Warranty Bond for Works of Improvement shall be equal to twenty-five percent (25%) of the estimated construction cost set forth in Exhibit 'A" or a suitable amount determined by the City Engineer. (ii) Prior to the City's final acceptance of the landscape and irrigation Works of Improvement, Subdivider shall provide to the City a Landscape and Irrigation Warranty Bond warranting the landscape and irrigation Works of Improvement for a period of (1) year following said acceptance against any defective work or labor done or defective material furnished for any reason other than improper maintenance. The amount of such landscape and Irrigation Warranty Bond shall be equal to twenty percent (20%) of the landscape architect's estimated construction cost, or a suitable amount determined by the City Engineer. The Subdivision Faithful Performance Bonds and Subdivision Labor and Material Bonds in the total amount of $1,66.7,000, which equals 100% of the Works of Improvement Costs depicted within the Subdivision Improvement Agreement for Final Map of Tract 17655, as issued for the Works of Improvement, shall be incorporated herein pursuant to the Endorsement. All Security Instruments required by this Agreement, shall be kept on file with the City Clerk. The terms of the Security Instruments required by this agreement are hereby incorporated in this agreement by reference. City Engineer shall release the Faithful Performance Bond upon Subdivider's written request following acceptance by the City of the Works of Improvement and Subdividers delivery to the City of the Warranty Bond for Works of Improvement. City Engineer shall release the Labor and Materials Bond upon Subdividers written request and following acceptance by the City of the Works of Improvement and after expiration of the time within which lien claims are required to be made pursuant to Article 3 (commencing with Section 3114) of Chapter 2 of Title 15 of Part 4 of Division Three of the California Civil Code. If lien claims have been timely filed, the City shall hold the Labor and Materials Bond until (a) such claims have been resolved, (b) Subdivider has provided a statutory bond, or otherwise as required by applicable law. City Engineer shall release the Warranty Bond for Works of Improvement upon Subdivider's written request following the expiration of the warranty period, provided no claims are outstanding at that time regarding defective work. City Engineer shall release the Landscape and Irrigation Warranty Bond upon Subdivider's written request following the expiration of the warranty period, provided the City reasonably determines the landscaping is consistent with the requirements of the warranty and the irrigation. system is operable. 2.1 Form of Security Instruments. All Security Instruments shall meet the following minimum requirements and otherwise shall be in a form reasonably acceptable to the City Attorney: (i) Any insurance company acting as surety shall have a minimum rating of A -IX, as rated by the current edition of Best's Key Rating Guide published by A.M. Best's Company, Oldwick, New Jersey, 08858; any bank acting as surety shall have a minimum rating of AA, as rated by Moody's or Standard & Poor's; (ii) Payments under the Security Instruments shall be required to be made (and, with respect to bonds, litigation shall be required to be instituted and maintained) in the County of Orange, State of California; (iii) Each of the Security Instruments shall have a minimum term of one (1) year after the deadline for Subdivider's completing the Works of Improvement, in accordance with paragraph 3 herein; (iv) The Security Instruments shall reference Subdivider's obligations under this Agreement, shall be irrevocable, and shall include as an additional obligation secured the responsibility to compensate City for all of the City's attorneys' fees and litigation expenses reasonably incurred enforcing its rights under the Security Instruments. 3. Time of Completion: All of the Works of Improvement shall be completed within twenty-four (24) months from the effective date of this Agreement. The time for completion may be extended by the City Engineer, in writing, for good cause shown by the Subdivider. Subdivider shall compensate the City for all costs reasonably incurred in having its authorized representatives perform the usual and customary engineering services during said extension as specified in Section 19 of this Agreement. In the event that Subdivider fails to complete the Works of Improvement within said period or any approved extension, the City may complete said Works of Improvement and shall be entitled to recover its reasonable cost and expenses thereof from its surety as herein provided. The City may require its surety, to pay the City in advance, sufficient monies to cover the City's cost in completing construction of said Works of Improvement. 3.1 Force Maieure: Notwithstanding the provisions of paragraph 3 herein, Subdivider's time for completion of the Works of Improvement shall be extended for the period of any enforced delay due to circumstances reasonably beyond the control and without the fault of Subdivider, including to the extent applicable adverse weather conditions, flood, earthquakes, strikes, lockouts, acts or failures to act of a public agency (including City), required changes to the Works of Improvement required by City, and similar causes; provided, however, that the period of any enforced delay hereunder shall not include any period longer than sixty (60) days prior to City's receipt of a written notice from Subdivider or its contractor detailing the grounds for rd 5 Subdivider's claim to a right to extend its time for performance hereunder. 3.2 Continuous Work: After commencement of construction of the Works of Improvement (or separable portion thereof), Subdivider shall cause such work to be diligently pursued to completion, and shall not abandon the work for a consecutive period of more than thirty (30) days, events of force majeure excepted. 3.3 Reversion to Acreage: In addition to whatever other rights City may have due to Subdivider's failure to timely perform its obligations hereunder, Subdivider recognizes that City reserves the right to revert the Property to acreage subject to the limitations and requirements set forth in California Government Code Sections 66499.11-66499.20- 314. In this regard, Subdivider agrees that if none of the Works of Improvement referenced herein have been completed within the specified "Time of Completion" referenced in paragraph 3 above or within the time allowed herein, whichever is the later, and if City thereafter initiates proceedings to revert the Property to acreage, any improvements made by or on behalf of Subdivider after the date City initiates such action shall not be considered in determining City's authority to revert the Property to acreage. Effective Date of Agreement'. This agreement shall not become effective unless and until the Final Map of Tract No. 16146 has been approved by the City Council and also accepted for recordation by the County Recorder of the County of Orange. Utility Deposits - Statement; Prior to the commencement of any work to be delineated on the Final Map of Tract No. 16146, written statement with the City Clerk and City Subdivider, to the effect that Subdivider has required by any public utility corporation for the public utilities to be supplied by such public ut subdivision. 6. Permits - Compliance with Law: performed within the area the Subdivider must file a Engineer, signed by the made all deposits legally connection of any and all ility corporation within the Subdivider shall, at Subdivider's expense, obtain all necessary permits and licenses for the construction of required Works of Improvement, give all necessary notices and pay all fees and taxes required by applicable law. 7. Definitions and Ownership of Work of Improvements: The term "Work of Improvements" includes all of the following, to the extent required by the approved plans, specifications, and cost estimates within Exhibit "A" to this Agreement: on-site and offsite grading, paving, curbs and gutters, pathways, storm drains, sanitary sewers, domestic and non-domestic water, utilities, such as electric, telephone and cable TV, conduits, gas lines, drainage facilities, traffic controls, landscaping and irrigation, street lights, and all other required facilities as shown in detail upon the plans and specifications which have been prepared by the Engineer of Record, Hunsaker and Associates Irvine, Inc. acting for Subdivider as approved by the City Engineer. No work on said Work of Improvements shall be commenced until this Agreement has been executed by the City. All required public Work of Improvements constructed or installed pursuant to this Agreement shall become the sole exclusive property of the City, without payment therefor, upon acceptance of said Work of Improvements by the City Council. 8. Obligations of Subdivider: Notwithstanding the fact that Subdivider's plans and specifications, completion of the Works of Improvement, and other acts are subject to approval of the City, it is understood and agreed that any approval by the City thereof shall in no way relieve Subdivider of satisfactorily performing said Works of Improvement or Subdivider's related obligations, if any, under this Agreement. The construction shall be done strictly in accordance with the plans and specifications, including supplementals and revisions prepared by Subdivider or its registered engineer, and as approved by the City as being consistent with the City's Municipal Code and Standards. Subdivider warrants to the City that its plans and specifications comply with said code and standards and that they are adequate to enable the Works of Improvement to be constructed and/or installed in a good and workmanlike manner and in accordance with responsible construction practices. In addition to the foregoing, Subdivider shall satisfy all the conditions of approval set forth on the City approved Tentative Map No. 16146 that are applicable to the property set forth on Final Map of Tract No. 16146. Subdivider shall also perform all work and furnish all materials necessary, in the opinion of the City Engineer and on his order, to complete the Works of Improvement. in accordance with the plans and specifications on file as hereinbefore specified, or with any changes required or ordered by said Engineer which, in his opinion, are reasonably necessary or required to complete this work. Subdivider shall notify the City regarding any property conveyance. Subdivider shall also provide the City with the California Bureau of Real Estate approved CC&R documents prior to recordation by the County of Orange. 9. Intent of Plans andSpecifications: The intent of the plans and specifications referenced above is to prescribe a complete work of improvement, which Subdivider shall perform, or cause to be performed in a manner reasonably acceptable to the City Engineer (or designee) and in full compliance with all applicable codes and the terms of this Agreement. Subdivider shall complete a functional or operable improvement or facility, even though the plans and specifications may not specifically call out all items of work required for a contractor to complete its tasks, incidental appurtenances, materials, and the like. If any omissions are made of information necessary to carry out the full intent and meaning of the plans and specifications, Subdivider or its contractor shall immediately notify its design engineer, who will seek approval of the City Engineer for furnishing of detailed instructions. In the event of any doubt or question arising regarding the true meaning of any of the plans, specifications, or related documents, reference shall be made to the City Engineer, whose decision thereon shall be final. 10. Superintendence by Subdivider: Subdivider shall supervise the Works of Improvement, or have a competent foreman or superintendent, satisfactory to the City Engineer, at the Subdivision at all times during the performance of the Works of Improvement, with authority to act for Subdivider. In the event the Subdivider is not properly supervising the Works of Improvement, the City Engineer may order suspension of all work within the Subdivision until the deficiency is adequately corrected. 11. Repair and -Replacements : Subdivider shall replace, or have replaced, or repair, or have repaired, as the case may be, or pay to the owner the entire cost of replacement or repairs, for all survey monuments or for any and all property damaged or destroyed by reason of any work done hereunder, whether such property be owned by the United States or any agency thereof, or the State of California, or any agency or political subdivision thereof, or by the City or by any public or private corporation, or by any person whomsoever or by combination of such owners. Any such repair or replacement shall be completed in a reasonable manner and subject to the reasonable approval of the City Engineer and affected property owner. 12. Inspection „by, the City: Subdivider shall at all times maintain proper facilities and provide safe access for inspection by the City to all parts of the work. The Subdivider shall pay the cost of inspections. The City's inspector shall have the authority to stop any and all work not in accordance with the requirements contained or referenced in this Agreement. The inspection of the work by the City shall not relieve Subdivider of any obligations to fulfill its obligations under this Agreement, and unsuitable materials or work may be rejected notwithstanding that such materials or work may have been previously overlooked or accepted. No inspection or acceptance pertaining to specific parts of the Works of Improvement shall be construed as final acceptance of any part until the overall final acceptance by the City is made. Final acceptance shall not constitute a waiver by the City of defective work subsequently discovered. The date on which the Works of Improvement will be considered as complete shall be that date on which the City Council accepts the improvements and authorizes the City Clerk to file a Notice of Completion with respect thereto. 13. Authority of the City Engineer: All required improvements shall be constructed under the inspection of and subject to the reasonable approval of the City Engineer. Therefore, it is mutually agreed by the parties hereto that the City Engineer shall have the right to reasonably reject any or all of the work to be performed under this Agreement if such work does not conform with the City Codes and Standards and the plans and specifications mentioned herein, including subsequent revisions that may have been previously overlooked during the plan review process. Any damage to the improvements (existing or new) that occurs during or after installation of work performed under this Agreement shall be repaired or replaced, by the Subdivider, to the reasonable satisfaction of the City Engineer before the final acceptance of completed work and release of security. In addition to the authority granted to the City Engineer elsewhere in this Agreement, the City Engineer shall have the authority to make a final decision in regard to all questions which may arise as to the quality and acceptability of materials furnished and work performed, and all questions as to the satisfactory and acceptable fulfillment of the terms of this Agreement by Subdivider and Subdivider's contractor(s). 10 1 4. Changes in the Work: The City Engineer, without invalidating this Agreement and without notification to any of the sureties referenced in Section 2 of this Agreement, may order extra work or may make changes by altering or deleting any portion of the Works of Improvement as specified herein or as deemed reasonably necessary or desirable by the City Engineer to accomplish the purposes of this Agreement and to protect the public health, safety, and welfare. It is mutually understood that it is inherent in the nature of the work contemplated by this Agreement that some changes in the plans and specifications and related documents may be necessary during the course of construction to adjust them to field conditions and to assure the protection of the public health, safety, and welfare. The City Engineer shall notify Subdivider or Subdivider's contractor(s) in writing (by Correction Notice) at the time a determination has been made to require changes in the Works of Improvement. No field changes performed or proposed by Subdivider or its contractor(s) shall be binding on the City unless approved in writing by the City Engineer. 1. No Warranty by City: The plans and specifications and related documents for the Works of Improvement have been prepared by or on behalf of Subdivider or its consultants or contractors, and City makes no representation or warranty, express or implied, to Subdivider or to any other person regarding the adequacy of the plans or specifications or related documents. 15. Liability for Performance,, I„njury or Damage: Neither the City nor any of its officers or agents shall be liable to Subdivider or its contractors for any error or omission arising out of or in connection with any work to be performed under this Agreement. Additionally, the City shall not be liable to the Subdivider or to any other person, firm, or corporation whatsoever, for any injury or damage that may result to any person or property by or from any cause whatsoever in, on, or about the subdivision of said land covered by this Agreement, or any part thereof. 17. Indemnifications and Release: Prior to the commencement of any work pursuant to this Agreement, Subdivider (if performing work itself) or Subdivider's contractors shall furnish to the City satisfactory evidence of an insurance policy written upon a form and by a company (which meets with the approval of the City) insuring the City, its officers, elected and appointed officers, agents, and employees as 11 additional insureds against loss or liability which may arise during the work or which may result from any of the work herein required to be done, including all costs of defending any claim arising as result thereof. Minimum general liability insurance shall be not less than $2,000,000 per occurrence and not less than $4,000,000 aggregate. Said policy shall be in favor of Subdivider or its contractors, as primary insureds, and of the City, its officers, elected and appointed officers, agents, and employees, as additional insureds, and shall be maintained in full force and effect during the life of this Agreement, including extensions, Said policy shall state by its terms and by an endorsement that it shall not be canceled until the City shall have had at least ninety (90) days' notice in writing of such cancellation. The Subdivider hereby releases and agrees to defend (with legal counsel selected by Subdivider and reasonably acceptable to the City), indemnify and hold the City harmless from and against any and all injuries to and deaths of persons and injuries to property, and all claims, demands, costs, loss, damage and liability, howsoever the same may be caused and whensoever the same may appear, resulting directly or indirectly from the performance or nonperformance of any or all work to be done in and upon the subject property and the premises adjacent thereto pursuant to this Agreement, and also from any and all injuries to and deaths of persons and injuries to property or other interests and all claims, demands, costs, loss, damage, and liability, howsoever the same may be caused and whensoever the same may appear, either directly or indirectly made or suffered by the Subdivider, the Subdivider's agents, employees, and subcontractors, while engaged in the performance of said work. The Subdivider further hereby releases and agrees to defend the City (with legal counsel selected by Subdivider and reasonably acceptable to the City) pursuant the following: Existing Drainage Line Indemnification Subdivider shall hold harmless, indemnify, and defend the City and its officers, employees, agents, contractors, and representatives (collectively, "Indemnified Parties") from and against any and all liabilities, damages, expenses, causes of actions, claims, or judgments (each a "Claim" and collectively, "Claims"), arising from or in any way connected with injury to or the death of any person, or physical damages to property, resulting from a break or other failure of the existing storm drain line ("Drain") located along the southwest property line of TTM 16146 and 17655 as well as the proposed relocation of a portion of that Drain adjacent to Lots 1 and 2 of TTM 17655; provided, however, that this indemnification shall be inapplicable to an Indemnified Party with respect to any Claim due to the negligence of the Indemnified Party or any of its employees. If any action or proceeding is brought against any of the Indemnified Parties by reason of any such Claim, Declarant shall, at the election of and upon written notice from the City, 12 defend such action or proceeding by counsel reasonably acceptable to City or reimburse the City for attorneys' fee and for all charges incurred for services of an attorney in defending the action or proceeding. 18. Liabili of Subdivider: The Subdivider agrees that the use for any purpose and by any person of any and all of the streets, easements and improvements herein specified shall be at the sole and exclusive risk of the Subdivider at all times prior to final acceptance by the City of the completed street and other improvements thereon and therein; provided that acceptance by the City shall in no way eliminate or lessen any of the Subdivider's obligations or undertakings contained in this Agreement. The issuance of any occupancy permits (if granted) by the City for buildings located within said subdivision shall not be construed in any manner to constitute an acceptance and approval of any or all of the required improvements in said subdivision. 19. Subdivider's Expenses: The Subdivider shall pay these additional expenses: a. The Subdivider shall cause to be made and/or pay for soil tests made by a reputable Geotechnical consultant/firm to determine stability, gradation, bearing, and resistance value of soils within the subdivision from which to determine the nature and design of appropriate improvements. The Subdivider shall also pay for all compaction and related tests necessary to determine that all fill work and the utility trench backfill has been satisfactorily placed. b. All service (including plan check and inspection), impact and connection fees as established by City shall be paid for each lot in the subdivision in accordance with the City Code. C. All actual costs for, design, plan check, development process and inspection incurred by the City in evaluating any proposed or agreed upon change in work. In no event shall Subdivider be entitled to additional inspections or final inspection and acceptance of any of the Works of Improvement until all the City fees and charges have been fully paid, including, without limitation, charges for applicable penalties and additional required inspections. d. Subdivider shall compensate the City for all actual costs reasonably incurred in having its authorized representatives make the usual and customary engineering services beyond the specified "Time of Completion" referenced in Section 3 above. Said actual costs 13 include: inspection of Works of Improvement, engineer design review, plan check and project development process. Subdivider agrees to pay the cost of said the City services within forty-five (45) days of invoice date, or as determined by the City Engineer. 20. Relationship of Contractors: It is hereby mutually covenanted and agreed by the parties hereto that Subdivider's contractors are not agents of the City, and that the contractors` relations to the City, if any, are those of independent contractors. 21. Ceiification of Satisfactor Completion - Upon the satisfactory completion of the Works of Improvement by the Subdivider, the City Engineer shall certify that the Works of Improvement have been satisfactorily completed. 22. Repairs or Reconstruction of Defective Work: If, within a period of one year after the City Council acceptance of the improvement work performed under this Agreement, any of the improvements or work done under this Agreement fail to fulfill any of the requirements of this Agreement, or the specifications referred to herein, Subdivider shall without delay and without any cost to the City (upon receipt of written notice from the City), repair or replace or reconstruct any defective or otherwise unsatisfactory part or parts of the work or structure. Should Subdivider fail to act promptly or in accordance with this requirement after receipt of written notice from the City, or should the exigencies of the case require repairs or replacements to be made before Subdivider can be notified in writing, the City may, at its option, make the necessary repairs or replacements or perform the necessary work and Subdivider shall pay to the City the actual reasonable cost of such repairs plus an amount equivalent to the current general the City overhead costs. 23. Warranty: Without limiting the foregoing, Subdivider warrants and guarantees: materials used and workmanship performed on said Works of Improvement for a period of one (1) year after completion and acceptance thereof by the City, the setting of all required Final Map monuments and agrees to maintain or cause to be maintained all required landscaping in a healthy condition for a period of one (1) year after completion and written acceptance thereof by the Director of Public Works and Utilities. All security instruments shall be submitted to the City in accordance with Section 2 of this Agreement. The 14 warranty provided herein shall not be in lieu of, but shall be in addition to, any warranties or other obligations otherwise imposed by law. 24. Default: 24.1 Remedies Not Exclusive: In any case where this Agreement provides a specific remedy to the City for a default by Subdivider hereunder, such remedy shall be in addition to, and not exclusive of, the City's right to pursue any other administrative, legal, or equitable remedy to which it may be entitled. 24.2 City's Right to Perform Work: In addition to whatever other rights or remedies it may have for Subdivider's default hereunder, in the event Subdivider shall fail to timely perform any work required to be performed under this Agreement and such failure shall continue for a period of thirty (30) days after receipt of written notice of default from the City, or thereafter Subdivider shall fail to diligently pursue the cure of any such default to completion, the City shall have the right to enter into the Property and perform any of the uncompleted work by force account or contract or both and thereupon recover from Subdivider and the surety company, or both, the full cost and expense thereby incurred by the City. 24.3 Attorney's Fees and Costs: In the event of any litigation arising out of Subdivider's performance of its obligations under this Agreement or under any of the Security Instruments referenced herein, the prevailing party in such action, in addition to any other relief which may be granted, shall be entitled to recover its reasonable attorney's fees and costs. Such attorney's fees and costs shall include fees and costs on any appeal, and in addition a party entitled to attorney's fees and costs shall be entitled to all other reasonable costs incurred in investigating such action, taking depositions and discovery, retaining expert witnesses, and all other necessary and related costs with respect to the litigation. All such fees and costs shall be deemed to have accrued on commencement of the action and shall be enforceable whether or not the action is prosecuted to judgment. 25. Notice of Completion: 15 Upon approval of the Works of Improvement by the City Engineer and acceptance by the City Council, the Subdivider shall file with the Orange County Recorder a Notice of Completion of the improvements herein specified. 26. Filing of Improvement Plans: Upon completion of the job and prior to final acceptance of the Works of Improvement by the City, the Subdivider shall submit to the City Engineer for review and approval, one Mylar (4 rails) set of "record" drawings as well as digital copies of all improvement plans in accordance with the latest edition of the City of San Juan Capistrano Digital Submission Standards. These drawings shall be certified and shall reflect the job as actually constructed, with all changes incorporated therein. 27. Assignment: This Agreement shall not be assignable by Subdivider without written consent of the City, which consent shall not be unreasonably withheld. 28. Enforcement No Third Party Beneficiaries. This Agreement may be enforced solely by the City and Subdivider or its assignee. There are no third party beneficiaries of this Agreement. 16 IN WITNESS WHEREOF, two (2) identical counterparts of this Agreement, each of which shall for all purposes be deemed an original thereof, have been duly executed by the Subdivider herein named on the day of , 2015, the name and corporate seal of each corporate party being hereto affixed and these presents duly signed by its undersigned representative(s) pursuant to authority of its governing body. CITY OF SAN ,JUAN CAPISTRANO By: Derek Reeve, Mayor "City" A TIT EST: By: Maria Morris, City Clerk APPROVED AS TO FORM: By - Hans Van Ligten, City Attorney --OWNER-- Scalzo, Trustee of The Scalzo Family 2003 Trust Its: Authorized Signatory (Attach Notary Acknowledgement) ATTEST: Attachments: Exhibit "A" 17 --SUBDIVIDER-- Name: :So w%, �:,. ate.. its: 14 v . , 5 Lt. 0, Authorized Signatoty (Attach Notary Acknowledgement) ATTEST: CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE 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 f County of On c/ Date personally appeared before me, Here Insert Name and Title of the Officer T 51ijz_-o Names) of 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/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. i3l1LCE DANIELLE�BARKERCommission 0 2 Notary Public - California z Orange County m M Comm. E fres Feh 12, 2019 �. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature SignatAot tary Public Place Notary Seal Above QP7'6(]iVe4L 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: Number of Pages: __ Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Corporate Officer — Title(s): Ll Partner — �! Limited ❑ General Individual l: :_E Attorney in Fact Trustee ❑ Guardian or Conservator 0 Other: _ Signer Is Representing: Signer's Name: .] Corporate Officer — Title(s): FI Partner -- U Limited [7 General Individual Attorney in Fact 0 Trustee L1 Guardian or Conservator Fj, Other: Signer Is Representing: ©2014 National Notary Association • www. National Notary, org • 1 -800 -US NOTARY (1-800-876-6827) Item #5907 CALIFORNIAALL—PURPOSE s Dr D: § 1189 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 ' On r ,'-20 7� before me, ! �t ?bl) - Date Here Insert Name and Title of the Offi r personally appeared NameXof Signe 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/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. DUCCE DANIELLE OARKH Commission # 2099918 Z .��" Notary Public • California z Z Orange County A M Comm, Ex 'res Feb 12, 2019 I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. i Signature SigiVre of Notary Public Place Notary Seal Above 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: Number of Pages:. Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name:_ C..-, Corporate Officer - Title(s): F71 Partner - :' ; Limited DiGeneral J Individual I i Attorney in Fact E Trustee 7' Guardian or Conservator - Other: Signer Is Representing: ______ Signer's Name: Dl Corporate Officer -- Titie(s): C Partner - i.:. Limited Ll General Individual i Attorney in Fact E.i Trustee CI Guardian or Conservator 1- Other: Signer Is representing: 02014 National Notary Association ^ www.NationalNotary.org , 1 -800 -US NOTARY (1-800-876-6827) Item 45907 Exhibit A WORKS OF IMPROVEMENT CERTIFICATION OF PARTIAL COMPLETION OF SUBDIVISION IMPROVEMENTS FTM 16146 I hereby certifiy that the following improvements in the Oliva Subdivision Final Tract Map 16146 have been completed, to wit: Schedule of Improvements Percent Remaining Amount or Complete Bond Amount Exhibit B Street Improvements Bonds Included within Subdivision Improvement Agreement for Final Ma of Tract 17665 Exhibit C Water Improvements Bands included within Subdivision Improvement Agreement for Final Map of Tract 17655 Exhibit D Sewer improvements Bonds Included within Subdivision Improvement Agreement for Final Map of Tract 17655 Exhibit E Drainage Improvements Bonds Included within Subdivision Improvement Agreement for Final Map of Tract 17655 Exhibit F Landscape and Irrigation Bands Included within Subdivision Improvement Agreement for Final Map of Tract 17655 Exhibit G Monumentation Bonds Included within Subdivision. Improvement Agreement for Final Map of Tract 17655 Total Works of Improvement SUBMITTED BY ENGINEER OF RECORD 1 estimate the total cost of completing the remainder of the in -Tract FTM 17655 improvements which are made a part of FTM 16146 by reference herein agreed to be performed by the Owner and Subdivider to be One million, six hundred and sixty-seven thousand and no/100 dollars $ 1,667,000.00 The Bonds are Included within the Subd DATED; ACCEPTED BY CITY DATED: ..�_ i Subdivision Improvements Agreement Oliva Subdivision, FTM 1614$ for f=inal Map of Tract 17655. A e__1 No. R E 3 796 Exp. 3!311 Exp. 03631/16 `Hunsaker and Assoicates, Inc. T-:hree..Hughes Irvine, GA 92618 Steve Kooym E! Assistant Poli orks Director I Of 1 Exhibit A RECORDING REQUESTED BY: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 AND WHEN RECORDED, MAIL TO: Maria Morris, CMC, City Clerk City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Exempt from Recording Fees: Gov Code 27383 & 6103 City of San Juan Capistrano This Space for Recorder's Use Only SUBJECT: FINAL MAP of TRACT NO. 17655 THIS AGREEMENT is made this day of March 2015, between the CITY OF SAN JUAN CAPISTRANO, a municipal corporation, State of California, hereinafter referred to as "City" and Donna M. Ostermiller and Frederick Scalzo as co -trustees of the Martin R. Scalzo Family 2003 Trust, duly qualified to conduct business in the State of California, whose principal place of business is 19480 Calle Teresa, Murrieta, CA 92562 (hereinafter referred to as "Owner") and TNHC SAN JUAN LLC, a Delaware limited liability company, duly qualified to conduct business in the State of California, whose principal place of business is 85 Enterprise, Suite 450, Aliso Viejo, CA 92656, (hereinafter referred to as "Subdivider"), concerning Final Map of Tract 17655 for the OLIVA SUBDIVISION (hereinafter referred to as "Subdivision"); the Final Map of which was fled with the County of Orange on the day of , 2015. RECITALS WHEREAS, the application by the New Home Company for approval of Tentative Tract Map No. 17655 was conditionally approved on August 19, 2014, by City Council Resolution No. 14-08-19-02,; and, WHEREAS, Owner is the owner of a portion of the land depicted in Tentative Tract Map No. 17655, generally described as that certain parcel of land situated in the City of San Juan Capistrano, Orange County, set forth on the Final Map of Tract No. 17655 (Lots A, 1, and 2) being that portion of Parcel 4 entitled "The Remainder Parcel" and (Lots 3, 4 and a portion of B) being that portion of Parcel 3 of Parcel Map No. 97-225 per map filed in book 315 pages 21 through 23, (hereinafter, the "Owner Property") and Subdivider ATTACHMENT 3 proposes to do and perform certain works of improvement on the Owner Property within the Subdivision as hereinafter set forth; and, WHEREAS, Subdivider is the owner of a portion of the land depicted in Tentative Tract Map No. 17655, generally described as that certain parcel of land situated in the City of San Juan Capistrano, Orange County, set forth on the Final Map of Tract No. 17655 (Lots 5-9) being that portion of Parcel 1 and 2 of Parcel Map No. 97-225 per map filed in book 315 pages 21 through 23, (hereinafter, the "Subdivider Property") and Subdivider proposes to do and perform certain works of improvement on the Subdivision Property within the Subdivision as hereinafter set forth; and, WHEREAS, Subdivider and Owner have entered into a Sales Agreement and Escrow Instructions dated March 4, 2013, for the Subdivision; and, WHEREAS, City desires to assure that said proposed improvements will be done in a good and workmanlike manner and in accordance with the laws now in force and effect in the City of San Juan Capistrano, California, the terms and conditions of which are incorporated herein by reference; and, WHEREAS, Subdivider declares that it is familiar with the pertinent regulations contained in the City's Municipal Code and in the Subdivision Map Act (Government Code Sections 66410 to 66500) and agrees to comply therewith; and, WHEREAS, the Final Map of Tract No. 17655 prepared in accordance with the City's Subdivision Ordinance, has been filed by Subdividerwith City for approval by the City Council; and, WHEREAS, TNHC requested and the City agrees to modify the timing of City Resolution No. 14-08-19-02 Condition of Approval No. 2.22 (CC&R's) recordation from prior to the Final Map to prior to the conveyance of any portion of the Final Tract Map. NOW THEREFORE, in consideration of the approval and acceptance by the City Council of City of said Final Map of Tract No. 17655 and the acceptance of easements therein offered for dedication for street and other public purposes and the covenants herein contained, the parties hereto mutually covenant and agree as follows: AGREEMENT General Requirements: Subdivider shall comply with all the conditions of approval that are applicable to the Final Map of Tract No. 17666 set forth in City Council Resolution No. 14-08-19-02 and the modification to Condition No. 2.22 of City Resolution 14-08-19-02, which changes the timing of the recordation of the CC&R's to prior to the conveyance of any portion of the Final Tract Map and shall, at its own cost and expense, provide all required tests, design work, equipment, materials and labor in order to make or cause to be made all those works of improvement in the Subdivision required by Title 9 Sections 9-4.101 through 9-4.405 N (Subdivisions) of the City Municipal Code (hereinafter referred to as "Code") and shown or described in the improvement plans, specifications and cost estimates entitled, "Improvement Plan Tract No. 17555 for Street Improvements which were approved by the City Engineer on March 2, 2015, and "Improvement Plan Tract No. 17555 for Sewer and Water Improvements", which were approved by the City Engineer on February 24, 2015, and the "Landscape Construction Documents for Oliva" accepted by the City Engineer on January 7, 2015. The Improvements within said Improvement Plans with the associated costs of improvements set forth in Exhibit "A" (collectively, the "Works of Improvement"), shall be completed to the satisfaction of the City Engineer. Such Works of Improvement shall include all items depicted within Exhibit "A" and include, the placement of curb markers at all proposed street catch basin inlet structures in accordance with the National Pollution Discharge Elimination System (NPDES) requirement. Attached hereto are Exhibit "A", marked "Works of Improvement Certification of Partiai Completion of Subdivision Improvements;" Exhibit B, marked "Schedule of Street Improvements;" Exhibit C, marked "Schedule of Water Improvements;" Exhibit D, marked "Schedule of Sewer Improvements;" Exhibit E, marked "Schedule of Drainage Improvements;" Exhibit F, marked "Schedule of Landscape and Irrigation Improvements;" and Exhibit G, marked "Schedule of Monumentaion;" all of which Exhibits are incorporated herein and made by reference a part hereof. The Exhibits describe quantities, units and costs associated with the improvements to be made. 2. Security: A. Subdivider shall, at all times beginning with the execution of this agreement, guarantee Subdivider's performance of this agreement by providing the City with the following security instruments (the "Security Instruments"), as required by the State Subdivision Map Act, on forms approved by the City for the purposes and in the amounts as follows: (i) A Faithful Performance Bond to ensure faithful performance of this agreement in regard to said improvements in the amount of 100°/a of the estimated cost of construction of the improvements as shown in Exhibit "A"; and (ii) A Labor and Materials Bond to secure payment to any contractor, subcontractor, persons renting equipment or furnishing labor or materials for the improvements required to be constructed or installed pursuant to this agreement in the additional amount of 100% of the estimated cost of construction of the improvements as shown in Exhibit "A"; and (iii) A Subdivision Monument Bond in the amount of 100% of the estimated cost of setting subdivision monuments as shown in Exhibit "A 11 B. In addition to the security instruments referenced in Paragraph 2(A) above, Subdivider shall provide to the City the following Security Instruments: (i) Prior to the City's final acceptance of the Works of Improvement and recordation of a Notice of Completion, Subdivider shall provide to the City a Warranty Bond for Works of Improvement warranting the accepted Works of Improvement for a period of one (1) year following said acceptance against any defective work or labor done or defective material furnished. The amount of such Warranty Bond for Works of Improvement shall be equal to twenty-five percent (25%) of the estimated construction cost set forth in Exhibit 'A" or a suitable amount determined by the City Engineer. (ii) Prior to the City's final acceptance of the landscape and irrigation Works of Improvement, Subdivider shall provide to the City a Landscape and Irrigation Warranty Bond warranting the landscape and irrigation Works of Improvement for a period of (1) year following said acceptance against any defective work or labor done or defective material furnished for any reason other than improper maintenance. The amount of such Landscape and Irrigation Warranty Bond shall be equal to twenty percent (20%) of the landscape architect's estimated construction cost, or a suitable amount determined by the City Engineer, All Security Instruments required by this Agreement, shall be kept on file with the City Clerk. The terms of the Security Instruments required by this agreement are hereby incorporated in this agreement by reference. City Engineer shall release the Faithful Performance Bond upon Subdivider's written request following acceptance by the City of the Works of Improvement and Subdivider's delivery to the City of the Warranty Bond for Works of Improvement. City Engineer shall release the Labor and Materials Bond upon Subdivider's written request and following acceptance by the City of the Works of Improvement and after expiration of the time within which lien claims are required to be made pursuant to Article 3 (commencing with Section 3114) of Chapter 2 of Title 15 of Part 4 of Division Three of the California Civil Code. If lien claims have been timely filed, the City shall hold the Labor and Materials Bond until (a) such claims have been resolved, (b) Subdivider has provided a statutory bond, or otherwise as required by applicable law. City Engineer shall release the Warranty Bond for Works of Improvement upon Subdivider's written request following the expiration of the warranty period, provided no claims are outstanding at that time regarding defective work. City Engineer shall release the Landscape and Irrigation Warranty Bond upon Subdivider's written request following the expiration of the warranty period, 4 provided the City reasonably determines the landscaping is consistent with the requirements of the warranty and the irrigation system is operable. 2.1 Form of Security Instruments. All Security Instruments shall meet the following minimum requirements and otherwise shall be in a form reasonably acceptable to the City Attorney: (i) Any insurance company acting as surety shall have a minimum rating of A -IX, as rated by the current edition of Best's Key Rating Guide published by A.M. Best's Company, Oldwick, New Jersey, 08858; any bank acting as surety shall have a minimum rating of AA, as rated by Moody's or Standard & Poor's; (ii) Payments under the Security Instruments shall be required to be made (and, with respect to bonds, litigation shall be required to be instituted and maintained) in the County of Orange, State of California; (iii) Each of the Security Instruments shall have a minimum term of one (1) year after the deadline for Subdivider's completing the Works of Improvement, in accordance with paragraph 3 herein; (iv) The Security Instruments shall reference Subdivider's obligations under this Agreement, shall be irrevocable, and shall include as an additional obligation secured the responsibility to compensate City for all of the City's attorneys' fees and litigation expenses reasonably incurred enforcing its rights under the Security instruments. 3. Time of Completion: All of the Works of Improvement shall be completed within twenty-four (24) months from the effective date of this Agreement. The time for completion may be extended by the City Engineer, in writing, for good cause shown by the Subdivider. Subdivider shall compensate the City for all costs reasonably incurred in having its authorized representatives perform the usual and customary engineering services during said extension as specified in Section 19 of this Agreement. In the event that Subdivider fails to complete the Works of Improvement within said period or any approved extension, the City may complete said Works of Improvement and shall be entitled to recover its reasonable cost and expenses thereof from its surety as herein provided. The City may require its surety, to pay the City in advance, sufficient monies to cover the City's cost in completing construction of said Works of Improvement. 3.1 Force Majeure: Notwithstanding the provisions of paragraph 3 herein, Subdividers. time for completion of the Works of Improvement shall be extended for the period of any enforced delay due to circumstances reasonably beyond the control and without the fault of Subdivider, including to the extent applicable adverse weather conditions, flood, earthquakes, strikes, lockouts, acts or failures to act of a public agency (including City), required changes to the Works of Improvement required by City, and similar causes; provided, however, that the period of any enforced delay hereunder shall not include any period longer than sixty (60) days prior to City's receipt of a written notice from Subdivider or its contractor detailing the grounds for Subdivider's claim to a right to extend its time for performance hereunder. 3.2 Continuous Work: After commencement of construction of the Works of Improvement (or separable portion thereof), Subdivider shall cause such work to be diligently pursued to completion, and shall not abandon the work for a consecutive period of more than thirty (30) days, events of force majeure excepted. 3.3 Reversion to Acreage: In addition to whatever other rights City may have due to Subdivider's failure to timely perform its obligations hereunder, Subdivider recognizes that City reserves the right to revert the Property to acreage subject to the limitations and requirements set forth in.California Government Code Sections 66499.11-66499.20- 3/4. In this regard, Subdivider agrees that if none of the Works of Improvement referenced herein have been completed within the specified "Time of Completion" referenced in paragraph 3 above or within the time allowed herein, whichever is the later, and if City thereafter initiates proceedings to revert the Property to acreage, any improvements made by or on behalf of Subdivider after the date City initiates such action shall not be considered in determining City's authority to revert the Property to acreage. 4. Effective Date of Agreement: This Agreement shall not become effective unless and until the Final Map of Tract No. 17655 has been approved by the City Council and also accepted for recordation by the County Recorder of the County of Orange. 5. Utility,Deposits - Statement: Prior to the commencement of any work to be performed within the area delineated on the Final Map of Tract No. 17655, the Subdivider must file a written statement with the City Clerk and City Engineer, signed by the Subdivider, to the effect that Subdivider has made all deposits legally required by any public utility corporation for the connection of any and all public utilities to be supplied by such public utility corporation within the subdivision. 6. Permits -.Compliance with Law: Subdivider shall, at Subdivider's expense, obtain all necessary permits and licenses for the construction of required Works of Improvement, give all necessary notices and pay all fees and taxes required by applicable law. 7. Definitions and Ownership of Work of Improvements: The term "Work of Improvements" includes all of the following, to the extent required by the approved plans, specifications, and cost estimates within Exhibit "A" through Exhibit "G" to this Agreement: on-site and offsite grading, paving, curbs and gutters, pathways, storm drains, sanitary sewers, domestic and non-domestic water, utilities, such as electric, telephone and cable TV, conduits, gas lines, drainage facilities, traffic controls, landscaping and irrigation, street lights, and all other required facilities as shown in detail upon the plans and specifications which have been prepared by the Engineer of Record, Hunsaker and Associates Irvine, Inc. acting for Subdivider as approved by the City Engineer. No work on said Work of Improvements shall be commenced until this Agreement has been executed by the City. All required public Work of Improvements constructed or installed pursuant to this Agreement shall become the sole exclusive property of the City, without payment therefor, upon acceptance of said Work of Improvements by the City Council. 8. Obligations of Subdivider: Notwithstanding the fact that Subdivider's plans and specifications, completion of the Works of Improvement, and other acts are subject to approval of the City, it is understood and agreed that any approval by the City thereof shall in no way relieve Subdivider of satisfactorily performing said Works of Improvement or Subdivider's related obligations, if any, under this Agreement. The construction shall be done strictly in accordance with the plans and specifications, including supplementals and revisions prepared by Subdivider or its registered engineer, and as approved by the City as being consistent with the City's Municipal Code and Standards. Subdivider warrants to the City that its plans and specifications comply with said code and standards and that they are adequate to enable the Works of Improvement to be constructed and/or installed in a good and workmanlike manner and in accordance with responsible construction practices. 0 In addition to the foregoing, Subdivider shall satisfy all the conditions of approval set forth on the City approved Tentative Map No_ 17655 that are applicable to the property set forth on Final Map of Tract No. 17655. Subdivider shall also perform all work and furnish all materials necessary, in the opinion of the City Engineer and on his order, to complete the 'Works of Improvement in accordance with the plans and specifications on file as hereinbefore specified, or with any changes required or ordered by said Engineer which, in his opinion, are reasonably necessary or required to complete this work. Subdivider shall notify the City regarding any property conveyance. Subdivider shall also provide the City with the California Bureau of Real Estate approved CC&R documents prior to recordation by the County of Orange. Intent of Plans and Specifications: The intent of the plans and specifications referenced above is to prescribe a complete work of improvement, which Subdivider shall perform, or cause to be performed in a manner reasonably acceptable to the City Engineer (or designee) and in full compliance with all applicable codes and the terms of this Agreement Subdivider shall complete a functional or operable improvement or facility, even though the plans and specifications may not specifically call out all items of work required for a contractor to complete its tasks, incidental appurtenances, materials, and the like. If any omissions are made of information necessary to carry out the full intent and meaning of the plans and specifications, Subdivider or its contractor shall immediately notify its design engineer, who will seek approval of the City Engineer for furnishing of detailed instructions. In the event of any doubt or question arising regarding the true meaning of any of the plans, specifications, or related documents, reference shall be made to the City Engineer, whose decision thereon shall be final. 10. Superintendence bV Subdivider: Subdivider shall supervise the Works of Improvement, or have a competent foreman or superintendent, satisfactory to the City Engineer, at the Subdivision at all times during the performance of the Works of Improvement, with authority to act for Subdivider, In the event the Subdivider is not properly supervising the Works of Improvement, the City Engineer may order suspension of all work within the Subdivision until the deficiency is adequately corrected. 11. Repair and Replacements: Subdivider shall replace, or have replaced, or repair, or have repaired, as the case may be, or pay to the owner the entire cost of replacement or repairs, for all survey monuments or for any and all property damaged or destroyed by reason of any work done hereunder, whether such property be owned by the United States or any agency thereof, or the State of California, or any agency or political subdivision thereof, or by the City or by any public or private corporation, or by any person whomsoever or by combination of such owners. Any such repair or replacement shall be completed in a reasonable manner and subject to the reasonable approval of the City Engineer and affected property owner. 12. Inspection by the City: Subdivider shall at all times maintain proper facilities and provide safe access for inspection by the City to all parts of the work. The Subdivider shall pay the cost of inspections. The City's inspector shall have the authority to stop any and all work not in accordance with the requirements contained or referenced in this Agreement. The inspection of the work by the City shall not relieve Subdivider of any obligations to fulfill its obligations under this Agreement, and unsuitable materials or work may be rejected notwithstanding that such materials or work may have been previously overlooked or accepted. No inspection or acceptance pertaining to specific parts of the Works of Improvement shall be construed as final acceptance of any part until the overall final acceptance by the City is made. Final acceptance shall not constitute a waiver by the City of defective work subsequently discovered. The date on which the Works of Improvement will be considered as complete shall be that date on which the City Council accepts the improvements and authorizes the City Clerk to file a Notice of Completion with respect thereto. 13. Authority o„ theCi,,,tyEngineer: All required improvements shall be constructed under the inspection of and subject to the reasonable approval of the City Engineer. Therefore, it is mutually agreed by the parties hereto that the City Engineer shall have the right to reasonably reject any or all of the work to be performed under this Agreement if such work does not conform with the City Codes and Standards and the plans and specifications mentioned herein, including subsequent revisions that may have been previously overlooked during the plan review process. Any damage to the improvements (existing or new) that occurs 0 during or after installation of work performed under this Agreement shall be repaired or replaced, by the Subdivider, to the reasonable satisfaction of the City Engineer before the final acceptance of completed work and release of security. In addition to the authority granted to the City Engineer elsewhere in this Agreement, the City Engineer shall have the authority to make a final decision in regard to all questions which may arise as to the quality and acceptability of materials furnished and work performed, and all questions as to the satisfactory and acceptable fulfillment of the terms of this Agreement by Subdivider and Subdivider's contractor(s). 14. Changes in the Work: The City Engineer, without invalidating this Agreement and without notification to any of the sureties referenced in Section 2 of this Agreement, may order extra work or may make changes by altering or deleting any portion of the Works of Improvement as specified herein or as deemed reasonably necessary or desirable by the City Engineer to accomplish the purposes of this Agreement and to protect the public health, safety, and welfare. It is mutually understood that it is inherent in the nature of the work contemplated by this Agreement that some changes in the plans and specifications and related documents may be necessary during the course of construction to adjust them to field conditions and to assure the protection of the public health, safety, and welfare. The City Engineer shall notify Subdivider or Subdivider's contractor(s) in writing (by Correction Notice) at the time a determination has been made to require changes in the Works of Improvement. No field changes performed or proposed by Subdivider or its contractor(s) shall be binding on the City unless approved in writing by the City Engineer. 15, No Warranty y City: The plans and specifications and related documents for the Works of Improvement have been prepared by or on behalf of Subdivider or its consultants or contractors, and City makes no representation or warranty, express or implied, to Subdivider or to any other person regarding the adequacy of the plans or specifications or related documents. 16. Liability for Performance. Iniury or Damaae: Neither the City nor any of its officers or agents shall be liable to Subdivider or its contractors for any error or omission arising out of or in connection with any work to be performed under this Agreement. Additionally, the City shall not be liable to the Subdivider or to any other person, firm, or corporation whatsoever, for any injury or, damage that may result to any person or property by or from any cause whatsoever in, on, or about the subdivision of said land covered by this Agreement, or any part thereof. 10 17. Indemnifications and Release: Prior to the commencement of any work pursuant to this Agreement, Subdivider (if performing work itself) or Subdivider's contractors shall furnish to the City satisfactory evidence of an insurance policy written upon a form and by a company (which meets with the approval of the City) insuring the City, its officers, elected and appointed officers, agents, and employees as additional insureds against loss or liability which may arise during the work or which may result from any of the work herein required to be done, including all costs of defending any claim arising as result thereof. Minimum general liability insurance shall be not less than $2,000,000 per occurrence and not less than $4,000,000 aggregate, Said policy shall be in favor of Subdivider or its contractors, as primary insureds, and of the City, its officers, elected and appointed officers, agents, and employees, as additional insureds, and shall be maintained in full force and effect during the life of this Agreement, including extensions. Said policy shall state by its terms and by an endorsement that it shall not be canceled until the City shall have had at least ninety (90) days' notice in writing of such cancellation. The Subdivider hereby releases and agrees to defend (with legal counsel selected by Subdivider and reasonably acceptable to the City), indemnify and hold the City harmless from and against any and all injuries to and deaths of persons and injuries to property, and all claims, demands, costs, loss, damage and liability, howsoever the same may be caused and whensoever the same may appear, resulting directly or indirectly from the performance or nonperformance of any or all work to be done in and upon the subject property and the premises adjacent thereto pursuant to this Agreement, and also from any and all injuries to and deaths of persons and injuries to property or other interests and all claims, demands, costs, loss, damage, and liability, howsoever the same may be caused and whensoever .the same may appear, either directly or indirectly made or suffered by the Subdivider, the Subdivider's agents, employees, and subcontractors, while engaged in the performance of said work. The Subdivider further hereby releases and agrees to defend the City (with legal counsel selected by Subdivider and reasonably acceptable to the City) pursuant the following: Existing Drainage Line Indemnification Subdivider shall hold harmless, indemnify, and defend the City and its officers, employees, agents, contractors, and representatives (collectively, "Indemnified Parties") from and against any and all liabilities, damages, expenses, causes of actions, claims, or judgments (each a "Claim" and collectively, "Claims"), arising from or in any way connected with injury to or the death of any person, or physical damages to property, resulting from 11 a break or other failure of the existing storm drain line ("Drain") located along the southwest property line of TTM 16146 and 17655 as well as the proposed relocation of a portion of that Drain adjacent to Lots 1 and 2 of TTM 17655; provided, however, that this indemnification shall be inapplicable to an Indemnified Party with respect to any Claim due to the negligence of the indemnified Party or any of its employees. If any action or proceeding is brought against any of the Indemnified Parties by reason of any such Claim, Declarant shall, at the election of and upon written notice from the City, defend such action or proceeding by counsel reasonably acceptable to City or reimburse the City for attorneys' fee and for all charges incurred for services of an attorney in defending the action or proceeding. 18. Liability of Subdivider: The Subdivider agrees that the use for any purpose and by any person of any and all of the streets, easements and improvements herein specified shall be at the sole and exclusive risk of the Subdivider at all times prior to final acceptance by the City of the completed street and other improvements thereon and therein; provided that acceptance by the City shall in no way eliminate or lessen any of the Subdivider's obligations or undertakings contained in this Agreement. The issuance of any occupancy permits (if granted) by the City for buildings located within said subdivision shall not be construed in any manner to constitute an acceptance and approval of any or all of the required improvements in said subdivision. 19. Subdivider's Expenses: The Subdivider shall pay these additional expenses: a. The Subdivider shall cause to be made and/or pay for soil tests made by a reputable Geotechnical consultant/firm to determine stability, gradation, bearing, and resistance value of soils within the subdivision from which to determine the nature and design of appropriate improvements. The Subdivider shall also pay for all compaction and related tests necessary to determine that all fill work and the utility trench backfill has been satisfactorily placed. b. All service (including plan check and inspection), impact and connection fees as established by City shall be paid for each lot in the subdivision in accordance with the City Code. C, All actual costs for, design, plan check, development process and inspection incurred by the City in evaluating any proposed or agreed upon change in work. In no event shall Subdivider be entitled to additional inspections or final inspection and acceptance of any of the 12 Works of Improvement until all the City fees and charges have been fully paid, including, without limitation, charges for applicable penalties and additional required inspections. d. Subdivider shall compensate the City for all actual costs reasonably incurred in having its authorized representatives make the usual and customary engineering services beyond the specified "Time of Completion" referenced in Section 3 above. Said actual costs include: inspection of Works of Improvement, engineer design review, pian check and project development process. Subdivider agrees to pay the cost of said the City services within forty-five (45) days of invoice date, or as determined by the City Engineer, 20. Relationship of Contractors: It is hereby mutually covenanted and agreed by the parties hereto that Subdivider's contractors are not agents of the City, and that the contractors' relations to the City, if any, are those of independent contractors. 21. Certification of Satisfactory Completion: Upon the satisfactory completion of the Works of Improvement by the Subdivider, the City Engineer shall certify that the Works of Improvement have been satisfactorily completed. 22. Repairs or Reconstruction of Defective Work: If, within a period of one year after the City Council acceptance of the improvement work performed under this Agreement, any of the improvements or work done under this Agreement fail to fulfill any of the requirements of this Agreement, or the specifications referred to herein, Subdivider shall without delay and without any cost to the City (upon receipt of written notice from the City), repair or replace or reconstruct any defective or otherwise unsatisfactory part or parts of the work or structure. Should Subdivider fail to act promptly or in accordance. with this requirement after receipt of written notice from the City, or should the exigencies of the case require repairs or replacements to be made before Subdivider can be notified in writing, the City may, at its option, make the necessary repairs or replacements or perform the necessary work and Subdivider shall pay to the City the actual reasonable cost of such repairs plus an amount equivalent to the current general the City overhead costs. 13 23. Warran : Without limiting the foregoing, Subdivider warrants and guarantees: materials used and workmanship performed on said Works of Improvement for a period of one (1) year after completion and acceptance thereof by the City, the setting of all required Final Map monuments and agrees to maintain or cause to be maintained all required landscaping in a healthy condition for a period of one (1) year after completion and written acceptance thereof by the Director of Public Works and Utilities. All security instruments shall be submitted to the City in accordance with Section 2 of this Agreement. The warranty provided herein shall not be in lieu of, but shall be in addition to, any warranties or other obligations otherwise imposed by law. 24. Default: 24.1 Remedies Not Exclusive: In any case where this Agreement provides a specific remedy to the City for a default by Subdivider hereunder, such remedy shall be in addition to, and not exclusive of, the City's right to pursue any other administrative, legal, or equitable remedy to which it may be entitled. 24.2 City's Right to Perform Work: In addition to whatever other rights or remedies it may have for Subdivider's default hereunder, in the event Subdivider shall fail to timely perform any work required to be performed under this Agreement and such failure shall continue for a period of thirty (30) days after receipt of written notice of default from the City, or thereafter Subdivider shall fail to diligently pursue the cure of any such default to completion, the City shall have the right to enter into the Property and perform any of the uncompleted work by force account or contract or both and thereupon recover from Subdivider and the surety company, or both, the full cost and expense thereby incurred by the City. 24.3 Attorney's l=ees and Costs: In the event of any litigation arising out of Subdivider's performance of its obligations under this Agreement or under any of the Security Instruments referenced herein, the prevailing party in such action, in addition to any other relief which may be granted, shall be entitled to recover its reasonable attorney's fees and costs. Such attorney's fees and costs shall include fees and costs on any appeal, and in addition a party entitled to attorney's fees and costs shall be entitled to all other reasonable costs incurred in investigating such action, taking depositions and discovery, retaining expert witnesses, and all other necessary and related costs with respect to the litigation, All such fees and costs shall be deemed to have accrued on commencement 14 of the action and shall be enforceable whether or not the action is prosecuted to judgment. 25. Notice of Completion, Upon approval of the Works of Improvement by the City Engineer and acceptance by the City Council, the Subdivider shall file with the ®range County Recorder a Notice of Completion of the improvements herein specified. 26. Filing_of lmprovement Plans: Upon completion of the job and prior to final acceptance of the Works of Improvement by the City, the Subdivider shall submit to the City Engineer for review and approval, one Mylar (4 mils) set of "record" drawings as well as digital copies of all improvement plans in accordance with the latest edition of the City of San Juan Capistrano Digital Submission Standards. These drawings shall be certified and shall reflect the job as actually constructed, with all changes incorporated therein. 27. Assignment:_ This Agreement shall not be assignable by Subdivider without written consent of the City, which consent shall not be unreasonably withheld. 28. Enforcement- No Third Party Beneficiaries, This Agreement may be enforced solely by the City and Subdivider or its assignee. There are no third party beneficiaries of this Agreement. 15 IN WITNESS WHEREOF, two (2) identical counterparts of this Agreement, each of which shall for all purposes be deemed an original thereof, have been duly executed by the Subdivider herein named on the day of , 2015, the name and corporate seal of each corporate party being hereto affixed and these presents duly signed by its undersigned representative(s) pursuant to authority of its governing body. CITY OF SAN JUAN CAPISTRANO By: Derek Reeve, Mayor "City" ATTEST: Maria Morris, City Clerk APPROVED AS TO FORM: Hans Van Ligten, City Attorney --OWNER-- Scalzo, Trustee of The Scalzo Family 2003 Trust Name its: Authorized Signatory (Attach Notary Acknowledgement) ATTEST: Attachments: Exhibit "A" - Exhibit "O„ 16 --SUBDIVIDER-- TNHC SAN JUAN LLC, Delaware Limited Liability Company 5651=r8.8F-4� By: Name: T-aow I-Tz its. r, 7a 614 "14 Authorized Signatory (Attach Notary Acknowledgement) ATTEST: CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 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 On --before me, Date ' Here Insert Name and Title of the Office personally appeared . ___1 G I • JGG�( Name of Signer} 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/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. Dt1LCE DANIELLE BARKER Commission # 2099918 =ai Notary Public - California Orange County comm. Exgras,,Feb 12, 2019 I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official. seal. Signature of Notary Public Place Notary Seal Above ®PTIONAL. 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: Number of Pages: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: L Corporate Officer — Title(s): _ '__' Partner --- El Limited ( General Individual i- Attorney in t=act L Trustee Cl Guardian or Conservator F_: Other: Signer Is Representing: Signer's Name: I: Corporate Officer — Title(s):__ Partner Limited €_= ii General Individual I Attorney in Pact Trustee D Guardian or Conservator Ll Other: Signer Is Representing: ®2014 National Notary Association • www,NationaiNotary.org ° 1 -800 -US NOTARY (1-800-876-6827) Item #5987 ZALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 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 __ ) On before me, Cr A/0 /u lfG . I Date Here Insert Name and rtle of the Officerli personally appeared .__-_____ Nam&X of Signer 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/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. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. DULGE DANIELLE i,T,A ER WITNESS my hand and official seal. Commission 2p99918 Z , rotary gr - California z Orange Cauasty > Signature � My Comm. Expires Feb 12, 2019 Signa u e of Notary Public Place Notary Seal Above 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 Attaches! Document Title or Type of Document: Number of Pages: _ Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: L. Corporate Officer — Title(s):___ ;J Partner — "mi Limited -1 General F. Individual LAttorney in Fact Trustee C Guardian or Conservator D Other: Signer Is Representing:_-� Signer's Name: W Corporate Officer -- Title(s): 7 Partner — %....:'. Limited ❑General Ll Individual Attorney in Fact F] Trustee Guardian or Conservator -I Other: Signer Is Representing: ___ 02014 National Notary Association • www.NationalNotary.org 4 1 -800 -US NOTARY (1-800-876-6827) Item #5907 Exhibit A WORKS OF IMPROVEMENT CERTIFICATION OF PARTIAL COMPLETION OF SUBDIVISION IMPROVEMENTS FTM 17656 I hereby certifiy that the following improvements in the Oliva Subdivision Final Tract Map 17655 have been completed, to wit: Schedule of Improvements Percent Complete Remaining Amount or Bond Amount Exhibit B Street Improvements $ 204,000.00 0,0% $ 204,000.00 Exhibit C Water Improvements $ 142,000.00 0.0% $ 142,000,00 Exhibit 0 Sewer Improvements $ 143,000.00 0.0% $ 143,000.00 Exhibit E Drainage Improvements $ 247,000.00 0.0% $ 247,000.00 Exhibit F Landscape and Irrigation $ 918,000.00 0.0% $ 918,000.00 Exhibit G Monumentation $ 13,000,00 0.0% $ 13,000.00 Total Works of Improvement $ 1,667,000.00 $ 1,667,000.00 Exhibit B Street Improvements The Performance Bond is for the amount of Two hundred and four thousand and no/100 dollars $ 204,000,00 The Laborers and Materialmens Bond is for the amount of no/100 dollars Exhibit C Water Improvements Two hundred and four thousand and $ 204, 000.00 The Performance Bond is for the amount of One hundred and forty-two thousand and noll00 dollars $ 142,000.00 The Laborers and Materialmens Bond is for the amount of and no1100 dollars Exhibit D Sewer Improvements One hundred and forty-two thousand $ 142, 000.00 The Performance Bond is for the amount of One hundred and forty-three thousand and no/100 dollars $ 143,000.00 The Laborers and Materialmens Bond is for the amount of and no/100 dollars Subdivision Improvements Agreement QWa Subdivision, FTM 17655 One hundred and forty-three thousand $ 143,000.00 1 of 9 Exhibd A Exhibit E Drainage Improvements The Performance Bond is for the amount of Two hundred and forty-seven thousand and nol100 dollars $ 247,000,00 The Laborers and Materialmens Band is for the amount of Two hundred and forty-seven thousanc and no/100 dollars $ 247,000.00 Exhibit F Landscape and irrigation The Performance Bond is for the amount of Nine hundred and eighteen thousand and no/100 dollars $ 918,000.00 The Laborers and Materialmens Bond is for the amount of Nine hundred and eighteen thousand and no/100 dollars $ 918,0€ &00 Exhibit G Monumentation The Performance Bond is for the amount of Thirteen thousand and no/100 dollars $ 13,000.00 The Laborers and Materialmens Bond is for the amount of Thirteen thousand and nof100 dollars $ 13,000.00 SUBMITTED BY ENGINEER OF RECORD I estimate the total cost of completing the remainder of the in -Tract FTM 17655 improvements, agreed to be performed by the Owner and Subdivider to be One million, six hundred and sixty-woamkw and no1100 dollars $ 1,667,000.00 DATE: f f: Exp. 03/31115 C1V� ACCEPTED BY CITY q'� OF 0 AU DATED: � t Staley, RCE'38796 Exp. 3/31Il15 ,.. Hunsaker and Assoicates, Inc. Three Hughes Irvine, CA 92618 Fr ,J L. Stezv6, Woyrnan, P. E, AspjstyAt PuG lic Works Director r1 a Subdivision improvements Agreement Oliva SubdMsion, FTM 17655 2 of 9 xhib;i A Exhibit B SCHEDULE OF STREET IMPROVEMENTS Owner and Subdivider agree to improve all streets and roads within the Final Tract Map 17655 of the Oliva Subdivision as required by the City in accordance with the plans and specifications entitled "Improvement Plans for Tract 17655, Street Plan" thereof approved by the City Engineer on February 26, 2015, and as set forth in the following Schedule of Street improvements: Item Description Quantity Units Breit Cost Total Cost 4" AC 28,930 SF $ 2,00 $ 57,860.00 8, AS 28,930 SI" $ 1.50 $ 43,395.00 4" ROLLED CURB & GUTTER 1,095 LF $ 15.50 $ . 16,972.50 4" P.C.C, SIDEWALK 5,812 SF $ 4,08 ' $ 23,712.96 6" CURB & GUTTER 360 LF $ 20.00 $ 7,200.00 4" ROLLED CURB & 12" CONCRETE= BAND 214 LF $ 15.50 $ 3,317.00 CONCRETE ROLLED CURB TRANSITION 8 EA $ 150.00 $ 1,200.00 "BEGIN NO PARKING FIRE LANE" SIGN 2 EA $ 200.00 $ 400,00 "END NO PARKING FIRE LANE" SIGN 2 EA $ 200.00 $ 400.00 LOCAL DEPRESSION STD 360 5 EA $ 1,400.00 $ 7,000.00 STREET LIGHT 3 EA $ 2,513.00 $ 7,539.00 STREET NAME SIGN 1 EA $ 300.00 $ 300.00 4" THERMOPLASTIC DOUE3LE YELLOW WITH "CHEVRON MARKINGS" 50 LF $ 5,00 $ 250.00 REMOVE TEMP. 2"X6" REDWOOD HEADER 28 LF $ 2.50 $ 70.00 Subtotal Street Improvement Cast (rounded 1,000) 10% Contingency 10% Soft Cost (CM, Insp, Survey, Admin) Total Street Improvement Cost Subdivision Improvements Agreement Oliva Subdivision, FTM 17855 $ 170,000.00 $ 17,000,00 $ 17,000.00 $ 204,0€10.00 3of9 Exhibit B Exhibit C SCHEDULE OF WATER IMPROVEMENTS Owner and Subdivider agree to install the Water distribution system within the Final Tract reap 17655 of the Oliva Subdivision as required by the City in accordance with the plans and specifications entitled "Improvement Plans for Tract 17655, Water and Severer Flan" thereof approved by the City Engineer on February 24, 2015, and as set forth in the following Schedule of Water Improvements: item Description w ua� tity units Unit Cast Tota! Cost FURNISH AND INSTALL. 8" PVC WATER PIPE 648 LF $ 120,00 $ 77,760.00 INSTALL 1" WATER SERVICE 11 EA $ 650.00 $ 7,150.00 INSTALL 1" WATER SE=RVICE W/ TRAFFIC LID 3 EA $ 750.00 $ 2,250.00 THRUST BLOCK 3 EA $ 300.00 $ 900.00 REMOVE TEMPORARY PLUG AND JOIN 1 EA $ 500.00 $ 500.00 INSTALL 1" AIR & VACUUM RELIEF VALVE 1 EA $ 3,000.00 $ 3,000.00 INSTALL 8" RESILIENT WEDGE GATT= VALVE 3 EA $ 5,500.00 $ 16,500.00 INSTALL 8"X8"X8" DIP TEE 1 EA INCL $ 1.00 INSTALL FIRE HYDRANT 1 EA $ 5,000.00 $ 5,000.00 INSTALL 2" BLOW -OFF 1 EA $ 4;000.00 $ 4,000,00 PLUG END 2 EA $ 500.00 $ 1,000.00 $ Subtotal Water improvement Cost (rounded 1,000) 10% Contingency 10% Soft Cost (CM, Insp, Survey, Admin) Total Water Improvements Cast Subdivision improvements Agreement Oliva Subdivision, FTM 17665 118,000.00 11,800.00 $ 11,800.00 $ 142,OQd.00 dof9 Exhibit C Exhibit D SCHEDULE OF SEWER IMPROVEMENTS Owner and Subdivider agree to install the sewer collection and disposal system within the Final Tract Map 17655 of the Oliva Subdivision as required by the City in accordance with the plans and specifications entitled "Improvement Plans for Tract 17655, Water and Sewer Plan" thereof approved by the City Engineer on Febraury 24, 2015, and as set forth in the Schedule of of Sewer Improvements: Item Description Quantity Unit unit Price Total Cost SEWER IMPROVEMENTS 8" PVC SDR 35 687 LF $ 80.00 $ 54,960.00 48" STANDARD MANHOLE 5 EA $ 10,000.00 $ 50,000.00 4" PVC SEWER SDR 35 LATERAL 467 LF $ 34.00 $ 14,010.00 REMOVE EXISTING PLUG AND JOIN 1 EA $ 500.00 $ 600.00 $ - $ - SUB -TOTAL SEWER IMPROVEMENTS $ 119,000.00 10% Contingency $11,900.00 10% Soft Cost (CM, Insp, Survey, Admin) $11,900.00 TOTAL SEWER IMPROVEMENTS $ 143,000.04 Subdivision Improvements Agreement 5 of 9 Oliva Subdivision. FTM 17655 Exhibit D SCHEDULE OF DRAINAGE IMPROVEMENTS Owner and Subdivider agree to install the Drainage improvements within the Final Tract Map 17655 of the Oliva Subdivision as required by the City in accordance with the pians and specifications entitled "Improvement Plans for Tract. 17655, Drainage Plan" thereof approved by the City Engineer on February 26, 2015, and as set forth in the following Schedule of Drainage Improvements: Item Description (quantity Unit Unit Price ictal Cost STORM DRAIN IMPROVEMENTS 12" PVC 781 LF $ 40.00 $ 31,240.00 24" RCP 296 LF $ 60.00 $ 17,760.00 18" RCP 166 LF $ 50.00 $ 8,300.00 JUNCTION STRUCTURE TYPE 4 6 EA $ 3,000.00 $ 18,000.00 CONCRETE COLLAR 5 EA $ 750.00 $ 3,750.00 36" RCF 272 LF $ 70.00 $ 19,040.00 CATCH BASIN INLET TYPE II (14) 1 EA $ 7,000.00 $ 7,000,00 CATCH BASIN INLET TYPE II (21) 1 EA $ 8,000.00 $ 8,000.00 CATCH BASIN INLET TYPE 11 (T) 1 EA $ 6,000.00 $ 6,000.00 STD. CLEAN-OUT 35 EA $ 800.00 $ 28,000.00 6" PVC 185 LF $ 20.00 $ 3,700.00 8" PVC 332 LF $ 30,00 i $ 9,960.00 STEEL PLATE 1 EA $ 750.00 $ 750.00 PVC 8"X8"X6" TEE 3 EA $ 500.00 $ 1,500.00 PVC TO C.B. CONNECTION 6 EA $ 750.00 $ 4,500.00 PVC 30° ELBOW 3 EA $ 500.00 $ 1,500.00 PVC 12"X12"X6" TEE 6 EA $ 1,000.00 $ 6,000.00 CATCH BASIN INLET TYPE (21') 1 EA $ 8,000.00 $ 8,000.00 MODIFIED INLET PER SPPWC STD. PLAN NO, 300-3 1 EA $ 8,000.00 $ 8,000,00 12" PVC CONNECTION TO 18" RCP 1 EA $ 750.00 $ 750,00 BLANKET PROTECTION FOR PIPE 2 EA $ 475.00 $ 950.00 REMOVE PLUG AND JOIN 3 EA $ 500.00 $ 1,500.00 DRAIN PIPE AND RISER 1 EA $ 5,000.00 $ 5,000,00 R1P-RAP 100 8F $ 10.00 $ 1,000.00 HEADWALL 2 EAT$ 3,000.00 1 $ 6,000.00 SUB -TOTAL STORM DRAIN IMPROVEMENTS 10% Contingency 10% Soft Cost (CM, insp, Surrey, Admin) TOTAL STORM DRAIN IMPROVEMENTS Subdivision Improvements Agreement Oliva Subdivision, PPM 17655 206,000.40 20,600.00 20,600.00 247,000.00 6of9 Exhibit E Exhibit F SCHEDULE OF LANDSCAPE AND IRRIGATION IMPROVEMENTS Owner and Subdivider agree to install the Landscape and Irrigation improvements within the Final Tract Map 17655 of the Oliva Subdivision as required by the City in accordance with the plans and specifications entitled "Improvement Plans for Tract 17655, Landscape and Irrigation Plan" thereof accepted by the City Engineer on January 7, 2015, and as set forth in the following Schedule of Landscape and Irrigation Improvements. Item Description Quantity Units Unit Cost Total Cost Construction Hardscape ! 17 EA $ 200.00 $ 3,400.00 Trees (36" box) 0 SF $ - $ _ Decomposed Granite 1,385 SF $ 6.00 $ 8,310.00 Concrete Sidewalks 7,120 SF $ 6.00 $ 42,720,00 Walls/ Fences 0 EA $ - $ _ Perimeter Wali - Slump with Brick Cap 1,248 LF $ 200.00 $ 249,600.00 Transformer Retaining Walls 161 LF $ 100.00 $ 15,100.00 Sideyard Wall Slurnp with Slump Cap 2,442 LF $ 80.00 $ 195,360,00 Tubular Steel Fence 749 LF $ 20.00 $ 14,980.00 Three Rail Fence at Basin 196 LF $ 200.00 $ 39,200.00 Glass Wall 4' on 18" Slump Wall 393 EA $ 65.00 $ 25,545,00 Pilaster- Slump Black Brick Cap 23 EA $ 850.00 $ 19,550.00 Pilaster - Slump Block Slump Cap 19 EA $ 400.00 $ 7,600.00 Site Features Metal E.V.A. Gates Vehicular 1 ALLOW $ 5,000.00 $ 5,000.00 $ - $ Construction Total $ 622,966.00 Landscape Trees Trees (24" box) ! 17 EA $ 200.00 $ 3,400.00 Trees (36" box) 32 EA $ 700,00 $ 22,400.00 Trees (48" box) 0 EA $ - $ - Trees (60" box) 2 EA $ 4,800.00 $ 9,600.00 Trees (72" box) 0 EA $ - $ _ Trees (108° box) 0 EA $ _ $ - Shrubs - 1 gallon 59 EA $ 7.50 $ 442.50 .Shrubs - 5 gallon 176 EA $ 2.5.00 $ 4,400.00 Subdivision Improvements Agreosnent 7 of 9 0ffva Subdivision, FTM 17655 Exhibit F Shrubs - 15 gallon 49 EA $ 60.00 $ 2,940.00 Ground Covers 41,000 SF $ 0.35 $ 14,350.00 Bark Mulch 41,000 SF $ 0.25 $ 10,250.00 Automatic Irrigation Shrub Irrigation. (spray -head) 41,000 SF $ 1.50 $ 61,500.00 180 Day Maintenance 41,000 SF $ 0.12 $ 4,920,00 Fine Grading and Soil Preparation 41,000 SF $ 0.18 $ 7,380.00 Landscape Total $ 141,682.50 Subtotal Landscape and Irrigation Improvements Cost $ 766,000.00 1.0% Contingency $ 76,500.00 10% Soft Cast (CM, Insp, Survey, Admin) $ 76,500.00 Total Landscape and Irrigation Improvements Cost $ 918,U0o.00 Subdivision Improvements Agreement B of 9 Oliva Subdivision, FTM 17655 Exhibit F Exhibit G SCHEDULE OF MONUMENTATION Owner and Subdivider agree to install the Survey Monuments within the Finai Tract Map 17655 of the Oliva Subdivision as required by the City in accordance with the Final Tract Map 17655 as approved by the City on March 17, 2015 and as set forth in the following Schedule of Monumentatiom Item Description Quantity units limit Cost Total Coast Monumentation Bond Amount Tr. 17655 1 LS $ $,850.00 $ 8,850.00 Monumentation Bond Amount Tr. 16146 1 LS $ 2,400.00 $ 2,400.00 � W Subtotal Monumentation Cast $ 1.1,000.00 10% Contingency $ 1,100.00 10% Soft Cost (CM, Insp, Survey, Admin) $ 1,100.00 Total Monumentation Cost $ 13,000 00 Subdivision improvements Agreement 9 of 9 Oliva Subdivision, FTM 17655 Exhibit G recording REQUESTED BY: City of San Juan Capistrano WHEN RECORDED MAIL TO: City of San Juan Capistrano Attn: City Clerk 52400 Paseo Adelanto San Juan Capistrano, CA 92675 SPACE ABOVE THIS LINE FCR. RECORDER'S USE ONLY [EXEMPT FROM RECORDER'S FEE PURSUANT TO GOVERNMENT CODE SECTION 273631 AGREEMENT ESTABLISHING SOILS SUBSIDENCE REMEDIATION PROGRAM THIS AGREEMENT ESTABLISHING SOILS SUBSIDENCE REMEDIATION PROGRAM ("Agreement") is entered into as of Mi.xc 14 11D , 2015 ("Effective Date"), by and among TNHC SAN JUAN LLC, a Delaware limited liability company ("Developer"), Oliva Maintenance Corporation., a California nonprofit mutual benefit corporation ("Association") and the CITY OF SAN JUAN CAPISTRANO ("City"), (Developer, Association and the City are each a "Party" and collectively, the 'Parties"), and pertains to that certain real property more particularly described on Exhibit "A" attached hereto and incorporated herein by this reference ("Property") RECITALS This Agreement is made with reference to the following facts: A. Developer is in the process of developing the Property as a common interest development, more particularly described in Section 4175 of the California Civil Code as a "planned devel- opment" (hereinafter referred to as the "Project"), consisting of single-family detached homes, landscaped areas and other improve- ments, in the City of San Juan Capistrano, County of Orange, State of California. References in this Agreement to "Lots" or "residential Lots" or "individually owned Lots" shall mean and refer to a Lot for residential purposes described and or depicted on a final map for the Property, and defined in the Declaration. References to "Common Area" or "Common Area lots or parcels" in this Agreement shall mean and refer to .real property designated "Common Area" or "Association Maintenance Areas" in the Declaration defined below. ATTACHMENT 4 B. On September I5, 1987, the City Council ("Council") of the City passed, approved and adopted Ordinance No. 605 ("Original Ordinance"), requiring that certain residential development in the City include a Soils Subsidence Remediation Program. On November 15, 2002, the Council passed, approved and adopted Ordinance No. 869 ("Amended Ordinance"), amending Title 9 of the San Juan Capistrano Municipal Code to add Section 9-3.545, entitled "Soils Subsidence Remediation Program" and deleting Title 8, Chapter 1.0 of the San Juan Capistrano Municipal Code as established by the Original Ordinance. C. The City approved Tentative Tract Map No. 16146 (e.g., Final Tract Map 16146) and all applicable conditions of approvals associated with such map, i.e., City Council Resolution No. 14-07- 08-2. D. The Association is a California nonprofit mutual benefit corporation which will own the Common Area within the Property and will serge as the homeowners, association for the residents of the Property. E. In compliance with Title 9, Section 9--3.545 of the San Juin Capistrano Municipal Code, Developer is required to establish and the Association is required to operate a Soils Subsidence Remediation Program. The City also requires the Developer and the Association to enter into this Agreement. This Agreement shall set forth the terms for the implementation of a Soils Subsidence Remediation Program ("Soils Subsidence Remediation Program") with respect to the Property. F. In addition, the Property will be subject to the terms of that certain Declaration of Covenants, Conditions, Restrictions and Reservation of Easements for Oliva recorded substantially concurrently herewith ("Declaration"). G. The Parties hereto desire to enter into this Agreement as it relates to the Soils Subsidence Remediation Program only and as it relates solely to the Property, to, among other things, more clearly set forth the rights and obligations of the Parties with respect to the Soils Subsidence Remediation Program. H. By entering into and recording this Agreement, Developer satisfies in full with respect to the Property (i) all conditions of approval relating to the Soils Subsidence Remediation Program, (ii) all requirements of the Amended 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. I AGREEMENT 1. 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 (if not already defined in the text of this Agreement or the Declaration.). Soils Subsidence Remediation Program. 2.1 Soils Subsidence Remediation Program and Term. Developer is required to impose on the Property a Soils Subsidence Remediation Program. This Agreement sets forth the above w -referenced Soils Subsidence Remediation Program as it relates to the Property. 2.2 Developer. Repair. Period. Pursuant to Municipal Code Section 9-3.S4S c(1)C, Developer shall be responsible for making all "Covered Repairs" necessitated by Soils Subsidences (as defined in Exhibit "B") at its sole expense during the "Developer Repair Period,"' which commences on the date of completion of rough grading of the entire site, and continues until the later of the third anniversary of completion of rough grading, or the date of the last close of escrow for the sale by Developer of a Lot in the Property. Notwithstanding this foregoing, Developer shall have the right to reduce or set off its payment obligation for any Covered Repair to the extent the Covered Repair is caused by the negligence or willful act of the City, the Association, members or the Association, Owners of Lots in the Property, or guests and invitees of Owners. in such event Developer shall have every remedy available under this Agreement and applicable law to cause the City, the Association, or the responsible owner (as applicable) or individual to contribute to the actual costs of making the Covered Repair, to the extent the damage is caused by the City, Association or the responsible owner, as applicable. if, during the Developer Repair Period, the Developer fails to make Covered Repairs as provided herein, then the City shall have the remedies provided in Section 6.3 below (subject to notice and hearing and dispute resolution processes described in'Section 6), including the right to draw upon the Developer Repair Period Security to pay the actual costs of making Covered Repairs. 2.3 Long -Term Covered Re airs; Administration After Developer Repair Period. Upon the expiration of the Developer Repair Period and continuing through the Soils Subsidence Remediation Period, the Association shall assume and perform all its obligations under this Agreement, and the Developer shall have no further obligations under this Agreement. in addition: W (a) Covered Repairs necessitated by Soils Subsidences occurring between the expiration of the Developer Repair Period and the end of the Soils Subsidence Remediation Period are "Long -Term Covered Repairs," the actual cost of which shall be paid from the Surficial Soils Subsidence Fund (defined in Section 2.4) to the extent funds are available; and (b) As of the date of this Agreement, the City is considering the formation of a Geologic Hazard Assessment District ("GFIADOF) for the Property, which, if formed, will have responsibility for performing or causing the performance of such Long -Term Covered Repairs. If the CHAD is formed, it shall, in accordance with Municipal Code Section 9-3.545{c)(1)(A), be activated on the first Long -Term Covered Repair, and the GHAD's actual costs incurred in making such Long -Term Covered Repairs shall be paid from the Surficial Soils Subsidence Fund. 2.4 Surficial Soils Subsidence Fund. No later than the expiration of the Developer Repair Period, Developer shall establish and fund a restricted reserve account in the name of the Association ("Surficial. Soils Subsidence Fund"). The Surficial Soils Subsidence Fund shall be regulated, funded and used as follows: (a) In accordance with Section 9.3-545 of the San Juan Capistrano Municipal Code, Developer shall deposit in the Surficial Soils Subsidence Fund good funds in the amount of the Project Fuad Amount as defined in Exhibit '1B,:1 and the City shall concurrently exonerate the Developer Repair Period Security described in Section 6 below; (b) Funds deposited in the Surficial Soils Subsidence Fund shall be applied only to actual costs incurred in making Long -Term Covered Repairs, and to the reasonable costs incurred by the Association's Claims Adjuster (as defined in Section 4.2) in reviewing claims for Long -Term Covered Repair's. (c) The Surficial Soils Subsidence Fund shall be put under the control of the Association to be managed and funded by it as a restricted reserve fund; (d) The Association shall maintain the balance of the Surficial Soils Subsidence Fund at no less than the Project Fund Amount. Subject to Section 7.1 below, the Association shall levy Special Assessments against the Lots as necessary to maintain the balance of Surficial Soils Subsidence Fund and to pay for Long - Term Covered Repairs to the extent funds in the Surficial Soils Subsidence Fund are insufficient to cover the actual costs thereof; 2.5 Applicability of Soils Subsidence Remediation Program. The slopes which are subject to the Soils Subsidence 4 Remediation Program ("Covered Slopes") are shown on Exhibit "C" attached hereto. 2.6 Reserved Rights. Developer 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 willful misconduct of the person or entity against whore the claim is asserted, for displacement of soil on the slopes, whether covered by the Soils Subsidence 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 and the Right to Repair Law provided in Title 7, Section 895 to 945.5 of the California Civil Code. 2.7 Inspection and Repair Rights. The Association and GRAD (if formed) shall have licenses or nonexclusive easements to enter onto Common Area and individual Lets to inspect and repair (if necessary) all landscaping, irrigation and drainage devices, and all other natural and artificial conditions which affect or might affect the integrity of Covered Slopes. 2.8 Prior Review of Owner Improvements. Any proposed alterations by Owners to the landscaping, grading, irrigation or drainage installed on Covered Slopes on individually owned bots shall be subject to prior review and approval by the Association and the City. 3. Claims Procedures and Adjustments During Developer Repair Period. During the Developer Repair Period, the Soils Subsidence Remediation Program shall be administered by the Developer. 4. Claims Procedures and Adjustments After Ex iration of Developer Repair Period. After expiration of the Developer Repair Period and continuing through the Soils Subsidence Remediation Period, the Soils Subsidence Remediation Program shall be administered by the Association. The Association shall retain the services of an independent Claims Adjuster (defined below) for all Long -Term Covered Repairs in accordance with the requirements set forth in Section 4.2 below_ The Claims Adjuster shall be responsible to adjust all claims for work which are claimed to be within the coverage of this program. Claims asserted to be within the coverage of this program will be processed on forms substantially in the form attached hereto as Exhibit I'D" and filed with the Claims Adjuster, who will promptly adjust such claims after obtaining an analysis on the scope and cost of completing all necessary repairs. Funds in the Surficial Soils Subsidence Fund shall be applied to the cost of the Claims Adjuster's services. 4.1 Notice of Claim. In the event any Party receives notice of a claim that a Soils Subsidence has occurred, such Party shall give all other Parties 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. 4.2 Claims Adjuster. Within fifteen (15) days after receipt of any such notice, the Association 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 Soils Subsidence matters (referred to herein as a "Claims Adjuster"). (a) The Claims Adjuster shall be responsible for promptly investigating, allocating responsibility for, and adjusting all claims which allege that a Soils Subsidence has occurred that is within the coverage of the Soils Subsidence Remediation Program. After reasonably appropriate investigation and analysis, the approved Claims Adjuster shall determine, among other things. (i) whether the claim is covered by the Soils Subsidence Remediation Program and if so, then the scope and estimated cost of the Covered Repairs, (ii) who has responsibility under this Agreement for actually performing the Covered Repairs or causing them to be performed, and (iii) who has under this Agreement the financial responsibility for the requisite Covered Repairs. (b) The Claims Adjuster shall complete its analysis as soon as reasonably possible and shall thereupon issue a written report to all of the Parties to this Agreement, which written report shall set forth its findings on the issues referred to above and such other matters as the Claims Adjuster deems appropriate. (c) 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. 5. 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 5 shall specify the alleged failure in detail. 6. Securit for Developer's Obligations. 6.1 Developer Repair Perim Security. Developer shall guaranty and secure performance of its obligations under Section 2.2 above by one of the following alternatives (each, "Developer Repair Period Security"), at the option of Developer with the approval of the City: (a) Corporate sureties in form reasonably approved by the City Attorney with a face amount of the lesser of $15,1.08.90 or $0.30 per square foot of the Covered Slopes, representing the fully funded amount of the Surficial Soils Subsidence Fund, together with funds representing premiums for annual renewal of the security during the three-year term of the Developer Repair Period; or (b) A deposit of cash in the amount of $15,108.90, either with a responsible escrow agent or trust company, of money or negotiable bonds of the kind approved for securing deposits of public moneys; or (c) An instrument of credit in the face amount of $15,108.90, from one or more financial institutions subject to .regulation by the state or federal government, pledging that the funds necessary to carry out the Soils Subsidence Remediation Program during the Developer Repair Period are on deposit and guaranteed for payment. 6.2 Release of Developer Re air Period Security. T h e Developer Repair Period Security is subject to release pursuant to the requirements and procedure set forth in Municipal Code Section 9-3.545c(2)D(ii). 6.3 Rights of City ;Won ,Default. If Developer, during the Developer Repair Period in accordance with Section 2.2 above, or the Association, during the period subsequent to the Developer Repair Period pursuant to the terms of Section 2.3 above, fails to perform its obligations as required under those Sections, the City Attorney shall provide written notice to Developer or the Association (as applicable) of such failure and provide Developer or the Association (as applicable) with an opportunity to cure in accordance with Section 5, above. In the event Developer or the W Association (as applicable) does not cure its failure of performance within the cure period, then the Council may, by resolution or other official Council action, after a noticed public hearing, authorize the Public Works Director ("Director") to draw upon the Developer Repair Period Security (in the case of a Developer default during the Developer Repair Period) or the Surficial Soils Subsidence Fund (in the case of an Association default) to pay for the required work or otherwise cure the default hereunder ("Authorized Monies"). The Surficial Soils Subsidence Fund and the Developer Repair Period Security shall be vested such that the Director can access such funds or security after such council action and submittal to dispute resolution (if requested by a Party) pursuant to Section. 6.5 below. 6.4 Public Hearing. Developer or the Association (as applicable) 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 Developer or the Association (as applicable) 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 this Agreement or is not reasonably necessary. 6.5 Dis ute Resolution. In the event of a dispute between the City and Developer or the Association (as applicable) 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 B below. 7. Special Assessments to Replenish the Surficial Soils Subsidence Fund. Following the expiration of the Developer Repair Period and the concurrent initial funding by Developer of the Surficial Soils Subsidence Fund, the Association shall automatically assume responsibility for administration of the Soils Subsidence Remediation Program and the Surficial Soils Subsidence Fund. The Association's obligations include the ongoing obligation throughout the remainder of the Soils Subsidence Remediation Period to assess the Dots and Owners in the Property as necessary to maintain at least the Project Fund Amount in the Surficial Soils Subsidence Fund. Notwithstanding anything in this Agreement to the contrary, the Association shall be under no obligation to impose any special assessment to pay for a Long -Term Covered Repair except in accordance with provisions in the Declaration or applicable section of the California Civil Code statutes. 7.1 Re lenishment Following Lon -Term Covered Repairs. If payments for Long -Term Covered Repairs cause the balance in the Surficial Soils Subsidence Fund to fall below the Project Fund Amount described in Exhibit 11B,11 then, within a reasonable period determined by the Board in exercise of its business judgment and with the consent of the City (all subject to the provisions of the Declaration and, California Civil Code Section 5600 et seq. and successor statutes), the. Association shall restore the total amount in the Association's Surficial Soils Subsidence Fund to the Project Fund Amount by assessing the Owners and their Lots. 7.2 Special Assessment to make Long -Term Covered Repairs. In the event a Long -Term Covered Repair is determined by the Claims Adjuster (described below) to be necessary, but funds available in the Surficial soils Subsidence Fund are insufficient to cover the cost of such Long -Term Covered Repair, theta. the Association shall specially assess the Owners at a rate sufficient to cover the cost of such Long -Term Covered Repair within a reasonable period determined by the Board in exercise of its business judgment and with the consent of the City (all subject to the provisions of the Declaration and California Civil Code Section 5600 et seq. and successor statutes). In the alternative, the Association's Board may, in the exercise of its business judgment and with the consent of the City, elect to defer such Long -Term Covered Repair to the extent necessary to first accumulate within a reasonable period of time (determined by the Board in exercise of its business judgment and subject to the provisions of the Declaration and California Civil Code Section 5600 et seq. and successor statutes) sufficient funds to cover the costs thereof and then to replenish the balance of the Surficial Soils Subsidence Fund to at least the Project Fund Amount. 7.3 Cessation of S ecial Assessments when Project Fund Amount Reached. Except in the event that the estimated cost of Long -Term Covered Repairs exceed the Project Fund Amount, the Association may cease levying and collecting special assessments when the total balance of the Association's Surficial Soils Subsidence Fund reaches the Project Fund Amount. 7.4 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 Surficial Soils Subsidence Fund as herein provided, and for levying and using best efforts to collect special assessments to restore the balance of the Surficial Soils Subsidence Fund as herein provided. 8. Dispute Resolution. Any dispute arising out of this Agreement, but excluding any construction defect claims or right to repair claims made under Sections 895 to 945.5 of the California Civil Code, shall be resolved in accordance with the article in the Declaration entitled "Dispute Resolution." 9. Miscellaneous. 9.1 Additional Limitations on Soils Subsidence Remediation Program. Nothing to the contrary in this Agreement withstanding, it is agreed that: (a) The Soils Subsidence Remediation Program provided herein expressly excludes Soils Subsidence 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 Soils Subsidence or not. (b) In no event will performance of repair work by any person or entity or any other circumstances extend the Developer Repair Period provided herein. 9.2 Reservations of License and Ricxht to Enter (a) There is hereby reserved for the benefit of Developer and its successors, and the Association, and their respective contractors and agents, a license and right to enter onto the Common Areas and individually -owned Lots within the Property so that Developer or its successors and the Association and their respective contractors and agents may (i) inspect all landscaping, irrigation and drainage devices, and all other natural and artificial conditions which affect or might affect the integrity of the Covered Slopes, and (ii) perform the duties of Developer (during the Developer Repair Period) and the Association (after the Developer Repair Period.) to the full extent provided for herein. (b) Appropriate provisions in the grant deeds will grant the Developer and the Association and their respective contractors and agents a license and right to enter onto the Common Areas and individually -owned Lots of the Property so that the Developer, the Association and their respective contractors and agents may inspect, maintain and repair the Covered Slopes to the full extent provided for herein. 9.3 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 residential Lots or Common Areas will be subject to review and approval by the Board of the Association and/or by its Architectural Review Committee. 9.4 Reference in Deeds. The grant deeds for the residential Lots will reference this Agreement and the Soils Subsidence Remediation 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. 9.5 Collection and Reporting. The Board of the Association will be responsible for the imposition and collection of special assessments to replenish the Surficial Soils Subsidence Fund, and for accounting for such special 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 during the 10 reporting period, as well as the balance in the Association's Surficial Soils Subsidence 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 Boards will also provide to Developer at its request, and to the City at the City's request, any further information, documentation and cooperation as is reasonably necessary to effectuate the purposes of this Agreement. 9.6 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. 9.7 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. 9.8 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. 9.9 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. 9.10 Binding Upon Successors. This Agreement is binding upon and shall inure to the benefit of the Parties hereto, their respective successors and assigns. (a) This Agreement is binding upon Developer's successors in interest or assignees as to the Property, and any or all of them. (b) Effective upon the sale or other conveyance of the Property 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 Developer Repair Period herein. Upon the City's receipt of reasonably adequate substitute security from any assuming Party, the Developer's Security or the appropriate pro rata portion 11 thereof shall be appropriately released and exonerated to Developer by the City. 9.11 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 Agreement, the same shall not be construed against any Party. This Agreement shall be construed under California law. 9.12 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 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. 9.1.3 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 waiver 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. 9.14 Termination. Unless otherwise agreed among the Parties, this Agreement shall automatically terminate upon expiration of the Soils Subsidence Remediation Period, at which time the obligations on the part of the Association (or its successors in interest or assignees) will automatically terminate, and any unused funds remaining in the Surficial Soils Subsidence Fund shall be applied to such purposes as the Association deems necessary or desirable in the business judgment of its Board. This Agreement shall, not be deemed terminated as provided in this Section 9.14 as to obligations and liabilities arising because of Slope Subsidence occurring prior to the expiration of the Soils Subsidence Remediation Period so long as a good faith written claim with respect to such Slope Subsidence has been received by the Parties prior to the expiration of the Soils Subsidence Remediation Period, 9.1.5 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 facsimile 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 12 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 facsimile or other reliable electronic type mail system. To Developer: TNHC SAN JUAN LLC c/o The New Home Company 95 Enterprise, Suite 325 Aliso Viejo, CA 92656 Attention: David J. Mello, Jr., Senior Project Manager Copy To: Gallagher & Moore 2 Park Plaza, Suite 680 Irvine, CA 92614 Attention: Fred Moore To the City: The City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: Public Works Director Facsimile: (949) 493-1251 To Association: Oliva Maintenance Corporation Copy To: The City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: City Attorney 13 IN WITNESS WHEREOF, this Agreement was executed on the date first above written. Citi The City of San Juan Capistrano BY: Name: Attest BY: Developer: TNHC SAN JUAN LLC, a Delaware Limited liability company By: The New Home Company Southern California LLC, a Delaware Limited liability company Its: Manager BY: Name: Title: Authorized Signatory Association: Oli-ra Maintenance Corporation a California nonprofit mutual benefit corporation By Name: Title; _... d'✓���� By: __._..._ .. Name: Title: al e f --S 14 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 ) ) ss. COUNTY OF ORANGE ) `/ L,. On �a , 2015, before me,/.�Ce �� t��� �/nryPic� -� Name and Title of Officer personally appeared ��i�/q� 0��0 �/� 7PM& , who proved to me on the basis of satis actory evidence to be the person(/) whose name(,K are subscribed to the within instrument and acknowledged to me that he/she/tbdy executed the same in his/ /th r authorized capacity( s), and that by his/h,�/thy signature( on the instrument, the persons or the entities 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. WITNESS my hand and official seal. DULCE DANIELLE BARKER Commission # 2099918 ,'� Notary PubiiC - California x Orange County IMy Comm. Expires Feb 12, 2019 Signatur of Notary Public [SEAL] 16 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 ) ) ss. COUNTY OF ORANGE ) On � �fD , 2015, before me, &1�e pQ%7/�&'10-Mr, �110#�� /0' wo� Nam and Title of Officer personally appeared ! Q(,( DOG�Gf/�ILi� I , who proved to me on the basis of satisfactory evidence to be the person( whose name(/' are subscribed to the within instrument and acknowledged to me that he/sVe/tidy executed the same in has/ly�r/th,g,ir authorized capacity (l/s) , and that by his/h/r/thq,ir signature(') on the instrument, the persons or the entities 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. WITNESS my hand and official seal. DULCE DANIELLE BARKER commission #F 2099918 Notary Public - Catitornia z Z Orange County n My Comm. -Expires Feb 12, 2019 Signatur of Notary Public [SEAL] 17 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 ) ss. COUNTY OF ORANGE } On Cry 2015, before me; Name and Title of Officer personally appeared�__/�i( oClzG)/7G�7��7i1 who proved to me on the basis of satisfactory evidence,/to be the person. (96 whose name (�e) are subscribed to the within instrument and acknowledged to ane that he/s�/e/tVy executed the same in his/h r/th ,ir authorized capacity (iA) , and that by his/Vr/th/r signature on the instrument, the persons or the entities upon behalf of which the person(,X) 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. WITNESS my hand and official. seal.. DULCE DANIELLE BARKER Commission # 2099918 Notary Public • California Orange County My Comm. Ex ires Feb 12, 2019[ Signature,/6f Notary Public [,SEAL] 15 EXHIBIT "A" LEGAL DESCRIPTION OF THE PROPERTY The Property is more particularly described as that certain real property located in the City of San Juan Capistrano, County of Orange, State of California, more generally described as: Tract No. 16146, in the City of San Juan Capistrano, State of California, as per map recorded in Book , Pages through , inclusive, of Miscellaneous Maps, in the Office of the County Recorder of said County. 18 EXHIBIT "B" DEFINITIONS The defined terms set forth below shall have the definitions given to them herein: "Amended Ordinance" shall have the meaning given to such terra. in Paragraph B of the Recital to the Agreement. "Amending Resolution" shall have the definition given to such term in Paragraph C of the Recitals to the Agreement. "Association" shall mean Oliva Maintenance Corporation, a California nonprofit mutual benefit corporation. "Authorized Monies" shall have the meaning given to it in Section 6.3 of the Agreement. "Board" shall mean the Board of Directors of the Association. "City" means the City of San Juan Capistrano, California. "Claims Adjuster" shall have the meaning given to such term in Section 4.2 of the Agreement. "Common Area" shall have the meaning given it in Preamble Paragraph A. "Council" shall have the meaning given to it in Paragraph "B" of Recitals of the Agreement. "Covered Repairs" shall mean repair of damage to Lots, structures, Common Area or public/private improvements necessitated by Soils Subsidences. "Covered Slopes" means certain slopes described in Section. 2.5 of the Agreement and shown on Exhibit "C" attached hereto. "Declaration" shall have the meaning given to it in Paragraph "E" of Recitals of the Agreement. "Developer" means TNHC SAN JUAN LLC, a Delaware limited liability company and its successors (as described in Section 9.10). "Developer Repair Period" shall have the meaning given it in Section 2.2. "Developer Repair Period Security" shall have the meaning given it in Section 6.1. 19 "Director" shall have the meaning given to it in Section 6.3 of the Agreement. "Effective Date" is defined in the first paragraph of this Agreement. "Geologic Hazard Assessment District" or "GRAD°1 has the meaning given it in Section 2.3(b). "Lang -Term Covered Repair" shall have the meaning given it in Section 2.3 (a) . "Lot" or "residential Lot" shall have the meaning given it in Preamble Paragraph A. "Project Fund Amount" means $11,331.68, which is 75% of the fully -funded Surficial Soils Subsidence Fund balance. "Property" means that certain real property more particularly described on Exhibit "A" attached hereto. "Soils Subsidence" is defined in San Juan Capistrano Municipal Code Section 9.3- 545 (c) (2) (A) as a catastrophic displacement of a Covered Slope at a depth up to three feet with a vertical movement of one foot or more, regardless of cause. Soils Subsidence does not include surface cracking and fissures, including desiccation cracks, or erosion (defined as the wearing away of 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 displacement). Surficial damage shall be considered catastrophic if due to the extent of movement, funds in the Surficial Soils Subsidence Fund are not sufficient to repair the damage. "Sails Subsidence Remediation, Program" shall have the meaning given to it in Paragraph C of the Recitals. "Soils Subsidence Remediation Period" means the period of time commencing on the Effective Date and ending on the 10th year thereafter. "Surficial Soils Subsidence Fund" is defined in Section 2.4 of this Agreement. The fully -funded balance of the Surficial Sails Subsidence Fund is $15,108.90, which is attributable to 50,363 square feet of Covered Slopes at the City --determined reserve amount of $0.30 per square foot of Covered Slopes. 20 LEGEND r ® TRACT 1614E 50,363 5G. q. NQ THE DFPJCTIONS HEREON ARE FOR 4LU5TRA7-TVF PURPOSES ONLY AND THE AS -BUILT CGNDMON BY DECLARANT SHALL BE CONTROLLING Jun. 3G, 10;4 08,05:40 AM FILE' `,\D"!3C\ErigVneere:g\;;IL F6I AS\E.h HOF\Cch C_15156-slo l- Exhibit C HOA MAINT"AINE"D SLOPES & SLOPE'S GREATER THAN YIN HEIGHT TRACT 16146 I' R 7,76 1! O� . I i LOTS f -ZZ ' TR 76746 LOTS 23.37 TR 16746 LOTS 23.31 x .. r, ',. J. TR 17713 LOTS 1-11 F d LEGEND r ® TRACT 1614E 50,363 5G. q. NQ THE DFPJCTIONS HEREON ARE FOR 4LU5TRA7-TVF PURPOSES ONLY AND THE AS -BUILT CGNDMON BY DECLARANT SHALL BE CONTROLLING Jun. 3G, 10;4 08,05:40 AM FILE' `,\D"!3C\ErigVneere:g\;;IL F6I AS\E.h HOF\Cch C_15156-slo l- EXHIBIT "D" NOTICE OF CLAIM FOR LONG-TERM COVERED REPAIR OLIVA NOTICE OF CLAIM UNDER SOILS SUBSIDENCE REMEDIATION PROGRAM TO: FROM: CLAIMS ADJUSTER (Name) (Address) (Name) (Address of Claim Property) (City, Zip) (Mailing Address if different from above) (Phone) This Notice of Claim is made in accordance with the terms of the Agreement Establishing Soils Subsidence Remediation Program ("Slope Agreement") governing the remediation of certain Covered Slopes in the Oliva community in the City of San Juan Capistrano. Owners are advised that the Soils ,Subsidence Remediation Program applies only to "Covered Slopes" identified on ;Exhibit C to the Slope Agreement. Claims for damage unrelated to Covered Slopes, Claims otherwise found to be outside the coverage of the Slope Agreement, and Claims for damage found to be caused by the Owner through negligence or willful act will be rejected. Owner agrees to cooperate with requests for entry made by the Claims Adjuster, Developer and CHAD personnel (as applicable) in connection with the investigation of this Claim and any and all remediation work that may be ordered in connection therewith. Capitalized terms used in this Notice of Claim are defined in the Slope Agreement, if not otherwise defined herein. The above-named Owner hereby requests the Claims Adjuster to investigate, allocate responsibility for, and adjust the following claim in connection with a "Soils Subsidence," as defined in San Juan Capistrano Municipal Code Section 9.3-545 (c) (2) (A) . Description of Claim (attach extra pages, including damage estimates, if necessary): Location of Claimed Damage (attach extra pages or maps if necessary): NN Owner Signatures: Date: Date: Signature Print Name Signature Print Name NOTE: There are additional pages attached to this Notice of Claim. 23 recording REQUESTED BY: City of San Juan Capistrano WHEN RECORDED MAIL TO: City of San Juan. Capistrano Attn: City Clerk 32400 Paseo Adelanto San Juan Capistrano, CA 92675 SPACE ABOVE THIS LINE FOR RECORDER'S USE ONLY [EXEMPT FROM RECORDER'S FEE PURSUANT TO GOVERNMENT CODE SECTION 273831 AGREEMENT ESTABLISHING SOILS SUBSIDENCE REMEDIATION PROGRAM THIS AGREEMENT ESTABLISHING SOILS SUBSIDENCE REMEDIATION PROGRAM ("Agreement") is entered into as of MAR -Cif ../0 , 2015 ("Effective Date"), by and among TNHC SAN JUAN LLC, a Delaware limited liability company ("Developer"), Oliva Maintenance Corporation, a California nonprofit mutual benefit corporation ("Association") and the CITY OF SAN JUAN CAPISTRANO ("City"), (Developer, Association and the City are each a "Party" and collectively, the "Parties"), and pertains to that certain real property more particularly described on Exhibit "A" attached hereto and incorporated herein by this reference ("Property"). RECITALS This Agreement is made with reference to the following facts: A. Developer is in the process of developing the Property as a common interest development, more particularly described in Section 4175 of the California Civil Code as a "planned devel- opment" (hereinafter referred to as the "Project"), consisting of single-family detached homes, landscaped areas and other improve- ments, in the City of San Juan Capistrano, County of Orange, State of California. References in this Agreement to "Lots" or "residential Lots" or "individually owned Lots" shall mean and refer to a Lot for residential purposes described and or depicted on a final map for the Property, and defined in the Declaration. References to "Common Area" or "Common Area lots or parcels" in this Agreement shall mean and refer to real property designated "Common Area" or "Association Maintenance Areas" in the Declaration defined below. -22556.FCM 030315 B. On September 15, 1987, the City Council ("Council") of the City passed, approved and adopted Ordinance No. 605 ("Original Ordinance"), requiring that certain residential development in the City include a Soils Subsidence Remediation Program. On November 15, 2002, the Council passed, approved and adopted Ordinance No. 869 ("Amended Ordinance"), amending Title 9 of the San Juan Capistrano Municipal Cade to add Section 9-3.545, entitled "Soils Subsidence Remediation Program" and deleting Title 8, Chapter 10 of the San Juan Capistrano Municipal Code as established by the Original Ordinance. C. The City approved Tentative Tract Map No. 17655 (e.g., Final Tract Map 17655) and all applicable conditi AGREEMENT 1. 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 (if not already defined in the text of this Agreement or the Declaration). 2. Soils Subsidence Remediation Program. 2.1 Soils Subsidence Remediation Program and Term. Developer is required to impose on the Property a Soils Subsidence Remediation Program. This Agreement sets forth the above -referenced Soils Subsidence Remediation Program as it relates to the Property. 2.2 Developer Repair Period. Pursuant to Municipal Code Section 9-3.545 c(1)C, Developer shall be responsible for making all "Covered Repairs" necessitated by Soils Subsidences (as defined in Exhibit "B") at its sole expense during the "Developer Repair Period," which commences on the date of completion, of rough grading of the entire site, and continues until the later of the third anniversary of completion of rough grading, or the date of the last close of escrow for the sale by Developer of a Lot in the Property. Notwithstanding this foregoing, Developer shall have the right to reduce or set off its payment obligation for any Covered Repair to the extent the Covered Repair is caused by the negligence or willful act of the City, the Association, members or the Association, Owners of Lots in the Property, or guests and invitees of Owners. In such event Developer shall have every remedy available under this Agreement and applicable law to cause the City, the Association, or the responsible Owner (as applicable) or individual to contribute to the actual costs of making the Covered Repair, to the extent the damage is caused by the City, Association or the responsible Owner, as applicable. If, during the Developer Repair Period, the Developer fails to make Covered Repairs as provided herein, then the City shall have the remedies provided in Section 6.3 below (subject to notice and hearing and dispute resolution processes described in Section 6), including the right to draw upon the Developer Repair Period Security to pay the actual costs of making Covered Repairs. 2.3 Long -Term Covered Repairs; Administration After Developer Repair Period. Upon the expiration of the Developer Repair Period and continuing through the Soils Subsidence Remediation Period, the Association shall assume and perform all its obligations under this Agreement, and the Developer shall have no further obligations under this Agreement. In addition: -22558.FCM 030315 3 (a) Covered Repairs necessitated by Soils Subsidences occurring between the expiration of the Developer Repair Period and the end of the Soils Subsidence Remediation Period are "Long -Term Covered Repairs," the actual cost of which shall be paid from. the Surficial Soils Subsidence Fund (defined in Section 2.4) to the extent funds are available; and (b) As of the date of this Agreement, the City is considering the formation of a Geologic Hazard Assessment District ('IGITADIf) for the Property, which, if formed, will have responsibility for performing or causing the performance of such Long -Term Covered Repairs. If the CHAD is formed, it shall, in accordance with Municipal Code Section 9-3.545{c)(1)(A), be activated on the first Long -`Perm Covered Repair, and the GHAD's actual costs incurred in making such Long -Term Covered Repairs shall be paid from the Surficial Soils Subsidence Fund. 2.4 Surficial. Soils Subsidence Fund. No later than the expiration of the Developer Repair Period, Developer shall establish and fund a restricted reserve account in the name of the Association ("Surficial Soils Subsidence Fund"). The Surf ficial. Sails Subsidence Fund shall be regulated, funded and used as follows: (a) In accordance with Section 9.3-545 of the San Juan Capistrano Municipal Code, Developer shall deposit in the Surficial Soils ,Subsidence Fund goad funds in the amount of the Project Fund Amount as defined in Exhibit "B," and the City shall concurrently exonerate the Developer Repair Period Security described in Section 6 below; (b) Funds deposited in the Surficial Soils Subsidence Fund shall be applied only to actual costs incurred in making Long --Term Covered Repairs, and to the reasonable costs incurred by the Association's Claims Adjuster (as defined in Section. 4.2) in reviewing claims for Long -Term Covered Repairs. (c) The Surficial Soils Subsidence Fund shall be put under the control of the Association to be managed and funded by it as a restricted reserve fund; (d) The Association shall maintain the balance of the Surficial Soils Subsidence Fund at no less than the Project Fund Amount. Subject to Section 7.1 below, the Association shall levy Special Assessments against the Lots as necessary to maintain the balance of Surficial Soils Subsidence Fund and to pay for Long - Term Covered Repairs to the extent funds in the Surficial Soils Subsidence Fund are insufficient to cover the actual costs thereof; 2.5 Applicability of Soils Subsidence Remediation Program. The slopes which are subject to the Soils Subsidence 22558.FCM 030315 4 Remediation Program ("Covered Slopes") are shown on Exhibit "CII attached hereto. 2.6 Reserved Rights. Developer 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 willful misconduct of the person or entity against whom the claim is asserted, for displacement of soil on the slopes, whether covered by the Soils Subsidence 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 and the Right to Repair Law provided in Title 7, Section. 8.95 to 945.5 of the California Civil Code. 2.7 ins ection and Re air Ri hts. The Association and CHAD (if formed) shall have licenses or nonexclusive easements to enter onto Common Area and individual Lots to inspect and repair (if necessary) all landscaping, irrigation and drainage devices, and all other natural and artificial conditions which affect or might affect the integrity of Covered Slopes. 2.8 .Prior Review of Owner Im rovements. Any proposed alterations by Owners to the landscaping, grading, irrigation or drainage installed on Covered Slopes on individually owned Lots shall be subject to prior review and approval by the Association and the City. 3. Claims Procedures and Adjustments During.Develo er Repair Period. During the Developer Repair Period, the Soils Subsidence Remediation Program shall be administered by the Developer. 4. Claims Procedures and Adjustments After Expiration of Developer Repair Period. After expiration of the Developer Repair Period and continuing through the Soils Subsidence Remediation Period, the Soils ,Subsidence Remediation Program shall be administered by the Association. The Association shall retain the services of an independent Claims Adjuster (defined below) for all Long -Term Covered Repairs in accordance with the requirements set forth in Section 4.2 below, The Claims Adjuster shall be responsible to adjust all claims for work which are claimed to be within the coverage of this program. Claims asserted to be within the coverage of this program will be processed on forms substantially in the fora attached hereto as Exhibit "D" and filed with the Claims Adjuster, who will promptly adjust such claims after obtaining an analysis on the scope and cost of completing all necessary repairs. Funds in the Surf icial Soils Subsidence Fund shall be applied to the cost of the Claims Adjuster's services. -22558.FCM 030315 5 4.1 Notice of Claim. In the event any Party receives notice of a claim that a Soils Subsidence has occurred, such Party shall give all other Parties 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. 4.2 Claims Adjuster. Within fifteen (15) days after receipt of any such notice, the Association 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 Soils Subsidence matters (referred to herein as a "Claims Adjuster"). (a) The Claims Adjuster shall be responsible for promptly investigating, allocating responsibility for, and adjusting all claims which allege that a Soils Subsidence has occurred that is within the coverage of the Soils Subsidence Remediation Program. After reasonably appropriate investigation and analysis, the approved Claims Adjuster shall determine, among other things: (i) whether the claim is covered by the Soils Subsidence Remediation Program and if so, then the scope and estimated cost of the Covered Repairs, (ii) who has responsibility under this Agreement for actually performing the Covered Repairs or causing them to be performed, and (iii) who has under this Agreement the financial responsibility for the requisite Covered Repairs. (b) The Claims Adjuster shall complete its analysis as soon as reasonably possible and shall thereupon issue a written report to all of the Parties to this Agreement, which written report shall set forth its findings on the issues referred to above and such other matters as the Claims Adjuster deems appropriate. (c) 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. 5. 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 -22558.F'CM 09C3!5 6 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 5 shall specify the alleged failure in detail.. 6. Security for Developer's Obligations. 6.1 Developer Repair Period Security. Developer shall guaranty and secure performance of its obligations under Section 2.2 above by one of the following alternatives (each, "Developer Repair Period Security"), at the option of Developer with the approval of the City: (a) Corporate sureties in form reasonably approved by the City Attorney with a face amount of the lesser of $2,902.80 or $0.30 per square foot of the Covered Slopes, representing the fully funded amount of the Surficial Soils Subsidence Fund, together with funds representing premiums for annual renewal of the security during the three-year term of the Developer Repair Period; or (b) A deposit of cash in the amount of $2,902.80, either with a responsible escrow agent or trust company, of money or negotiable bonds of the kind approved for securing deposits of public moneys; or (c) An instrument of credit in the face amount of $2,902.80, from one or more financial institutions subject to regulation by the state or federal government, pledging that the funds necessary to carry out the Soils Subsidence Remediation Program during the Developer Repair Period are on deposit and guaranteed for payment. 6.2 Release of Developer Repair Period Security. T h e Developer Repair Period Security is subject to release pursuant to the requirements and procedure set forth in Municipal Code Section 9-3.545c(2)D(ii) . 6.3 Rights of City Upon Default. If Developer, during the Developer Repair Period in accordance with Section 2.2 above, or the Association, during the period subsequent to the Developer Repair Period pursuant to the terms of Section 2.3 above, fails to perform its obligations as required under those Sections, the City Attorney shall provide written notice to Developer or the Association (as applicable) of such failure and provide Developer or the Association (as applicable) with an opportunity to cure in accordance with Section 5, above. In the event Developer or the -22558.FCM 930315 7 Association (as applicable) does not cure its failure of performance within the cure period, then the Council may, by resolution or other official Council action, after a noticed public hearing, authorize the Public Works Director ("Director") to draw upon the Developer Repair Period Security (in the case of a Developer default during the Developer Repair Period) or the Surficial Soils Subsidence Fund (in the case of an Association default) to pay for the required work or otherwise cure the default hereunder ("Authorized Monies"). The Surficial Soils Subsidence Fund and the Developer Repair Period Security shall be vested such that the Director can access such funds or security after such Council action and submittal to dispute resolution (if requested by a Party) pursuant to Section 6.5 below. 6.4 Public Hearing. Developer or the Association (as applicable) 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 Developer or the Association (as applicable) 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 this Agreement or is not reasonably necessary. 6.5 Dispute Resolution. In the event of a dispute between the City and Developer or the Association (as applicable) 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 8 below. 7. Special Assessments to Replenish the Surficial Soils Subsidence Fund. Following the expiration of the Developer Repair Period and the concurrent initial funding by Developer of the Surficial Soils Subsidence Fund, the Association shall automatically assume responsibility for administration of the Soils Subsidence Remediation Program and the Surficial Soils Subsidence Fund. The Association's obligations include the ongoing obligation throughout the remainder of the Soils Subsidence Remediation Period to assess the Lots and Owners in the Property as necessary to maintain at least the Project Fund Amount in the Surficial Soils Subsidence Fund. Notwithstanding anything in this Agreement to the contrary, the Association shall be under no obligation to impose any special assessment to pay for a Long -Term Covered Repair except in accordance with provisions in the Declaration or applicable section of the California Civil Code statutes. 7.1 Re lenishment Following Lon -Term Covered Repairs. If payments for Long -Term Covered Repairs cause the balance in the Surficial Soils Subsidence Fund to fall below the Project Fund Amount described in Exhibit 11B," then, within a reasonable period determined by the Board in exercise of its business judgment and with the consent of the City (all subject to the provisions of the -22558.PCM 030315 Declaration and California Civil Code Section 5600 et seq. and successor statutes), the Association shall restore the total amount in the Association's Surficial Soils Subsidence Fund to the Project Fund Amount by assessing the Owners and their Lots. 7.2 Special Assessment to Make Lona -Tarin Covered Repairs. In the event a Long -Term Covered Repair is determined by the Claims Adjuster (described below) to be necessary, but funds available in the Surficial Soils Subsidence Fund are insufficient to cover the cost of such Long -Term Covered Repair, then the Association shall specially assess the Owners at a rate sufficient to cover the cost of such bong -Term Covered Repair within a reasonable period determined by the Board in exercise of its business judgment and with the consent of the City (all subject to the provisions of the Declaration and California Civil Code Section 5600 et seq. and successor statutes). In the alternative., the Association's Board may, in the exercise of its business judgment and with the consent of the City, elect to defer such Long -Term Covered Repair to the extent necessary to first accumulate within a reasonable period of time (determined by the Board in exercise of its business judgment and subject to the provisions of the Declaration and California Civil Code Section 5600 et seq. and successor statutes) sufficient funds to cover the costs thereof and then to replenish the balance of the Surficial Soils Subsidence Fund to at least the Project Fund Amount. 7.3 Cessation of Special Assessments when Project Fund Amount Reached. Except in the event that the estimated cost of Long -Term Covered Repairs exceed the Project Fund Amount, the Association may cease levying and collecting special assessments when the total balance of the Association's Surficial Soils Subsidence Fund reaches the Project Fund Amount. 7.4 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 Surficial Soils Subsidence Fund as herein provided, and for levying and using best efforts to collect special assessments to restore the balance of the Surficial Soils Subsidence Fund as herein orovided. 8. Dispute Resolution. Any dispute arising out of this Agreement, but excluding any construction defect claims or right to repair claims made under Sections 895 to 945.5 of the California Civil Code, shall be resolved in accordance with the article in the Declaration entitled "Dispute Resolution.{ 9. Miscellaneous. 9.1 Additional. Limitations on Soils Subsidence Remediation Program. Nothing to the contrary in this Agreement withstanding, it is agreed that! -22558.FCM 030315 (a) The Soils Subsidence Remediation Program provided, herein expressly excludes Soils Subsidence 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 Soils Subsidence or not. (b) In no event will performance of repair work by any person or entity or any other circumstances extend the Developer Repair Period provided herein. 9.2 Reservations of License and Right to Enter. (a) There is hereby reserved for the benefit of Developer and its successors, and the Association, and their respective contractors and agents, a license and right to enter onto the Common Areas and individually -owned Lots within the Property so that Developer or its successors and the Association and their respective contractors and agents may (i) inspect all landscaping, irrigation and drainage devices, and all other natural and artificial conditions which affect or might affect the integrity of the Covered Slopes, and (ii) perform the duties of Developer (during the Developer Repair Period) and the Association (after the Developer Repair Period) to the full extent provided for herein. (b) Appropriate provisions in the grant deeds will grant the Developer and the Association and their respective contractors and agents a license and right to enter onto the Common Areas and individually -owned Lots of the Property so that the Developer, the Association and their respective contractors and agents may inspect, maintain and repair the Covered Slopes to the full extent provided for herein. 9.3 Review and LARproval by Association. Any proposed alterations by homeowners or any other person or entity to the landscaping, grading, irrigation or drainage on the residential Lots or Common Areas will be subject to review and approval by the Board of the Association and/or by its Architectural Review Committee, 9.4 Reference in Deeds. The grant deeds for the residential Lots will reference this Agreement and the Soils Subsidence Remediation 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. 9.5 Collection and Reporting. The Board of the Association will be responsible for the imposition and collection of special assessments to replenish the Surficial Soils Subsidence Fund, and for accounting for such special 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 during the . 22558,FCM 030315 10 reporting period, as well as the balance in the Association's Surficial Soils Subsidence Fund as of the date of the report. Such reports will be trade on or before January 31 and July 31 of each year. The Boards will also provide to Developer at its request, and to the City at the City's request, any further information, documentation and cooperation as is reasonably necessary to effectuate the purposes of this Agreement. 9.6 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. 9.7 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. 9.8 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. 9.9 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. 9.10 Binding Upon Successors. This Agreement is binding upon and shall inure to the benefit of the Parties hereto, their respective successors and assigns. (a) This Agreement is binding upon Developer's successors in interest or assignees as to the Property, and any or all of them. (b) Effective upon the sale or other conveyance of the Property 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 Developer Repair Period herein. Upon the City's receipt of reasonably adequate substitute security from any assuming Party, the Developer's Security or the appropriate pro rata portion -22558,PCM 030315 11 thereof shall be appropriately released and exonerated to Developer by the City. 9.11 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 Agreement, the same shall not be construed against any Party. This Agreement shall be construed under California law. 9.12 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 an original, and when taken together with the other signed counterparts, shall constitute one agreement, which shall be banding upon and effective as to all Parties. 9.13 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 waiver 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. 9.14 Termination. Unless otherwise agreed among the Parties, this Agreement shall automatically terminate upon expiration of the Soils Subsidence Remediation Period, at which time the obligations on the part of the Association (or its successors in interest or assignees) will automatically terminate, and any unused funds remaining in the Surficial Soils Subsidence Fund shall be applied to such purposes as the Association deems necessary or desirable in the business judgment of its Board. This Agreement shall not be deemed terminated as provided in this Section 9.14 as to obligations and liabilities arising because of Slope Subsidence occurring prior to the expiration of the Soils Subsidence Remediation Period so long as a good faith written claim with respect to such Slope Subsidence has been received by the Parties prior to the expiration of the Soils Subsidence Remediation Period. 9.15 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 facsimile 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 -22558.FCM 030315 12 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 facsimile or other reliable electronic type mail system. To Developer: TNHC SAN JUAN LLC c/o The New Home Company 95 Enterprise, Suite 325 Aliso Viejo, CA 92656 Attention: David J. Mello, Jr., Senior Project Manager Copy To: Gallagher & Moore 2 Park Plaza, Suite 680 Irvine, CA 9261.4 Attention: Fred Moore To the City: The City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: Public Works Director Facsimile: (949) 493-1251 To Association: Oliva Maintenance Corporation Copy To: The City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: City Attorney -22558.PCM 030215 13 IN WITNESS WHEREOF, this Agreement was executed on the date first above written. City: The City of San Juan Capistrano BY - Name - Y:Name: Attest BY: Develo er- TNHC SAN JUAN LLC, a Delaware limited liability company By: The New Home Company Southern California LLC, a Delaware limited liability company Its: Manager BY: Name: 1Z'aDW 4 `9' Z,. Title: Authorized Signatory Association: Oliva Maintenance Corporation a California nonprofit mutual benefit corporation Name: 04j,4- J, Title: /%-'XI �R 3y- ,,,Name y - ,,,Name„ Tit1e': u a -22558.FCM 030315 4 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 } ss. COUN'T'Y OF ORANGE ) On211,5, before me,00_��1 rc �G���/ .Al•�����r� � Name and Title of Officer personally appeared IUj moi' who proved to me on the basis of satisfactory evidenc& to b9 -the person(/) whose name V) are subscribed to the within instrument and acknowledged to me that he/s/e/thAy executed the same in his/h,o�r/they./r authorized capacity(i/s), and that by his/hgr/thp.%ir signature (?0 on the instrument, the persons or the entities 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. WITNESS my hand and official seal. _ m OUi.CE l)AN1EL{.lr BARKER Commission 2©99918 zro"-o Notary public - California z ZOrange County r My Comm. Expires Feb 12, 2019 Signature of Notary Public [SEAT,] -2255a.FCM 030315 16 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 } ) ss. COUNTY OF ORANGE } On0C. , /0 , 20I5, before me,,Da/ee Da -111d ,/ N me and Title of Officer Da - personally appeared 111 J -x1 ej101T f ��y W who proved to me on the basis of satisfactory evidence to be the personV) whose name(/ are subscribed to the within instrument and acknowledged to me that he/se/they executed the same in his/h/r/tWir authorized capacity(i/s), and that by his/l/r/thgZr signature( X) on the instrument, the persons or the entities upon behalf of which the person(K 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. WITNESS my hand and official seal.. pl1LCE DANIELLE BARKER Commission 0 2099916 =aw Notary Public - Calilorrnia p �} z Orange Courtty fMy Comm. Expires Feb 12 2019 Signature of Notary Public [SEAL] -225583 FCM 030315 16 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 ) ) ss. COL7NTTY OF ORANGE ) Ong 2015, before me, �I�J� l��l Gtre�°il a f►i-�7 P401� - Name and Title of Officer personally appeared Q a5 OOd0aa , 124 P who proved to me on the .. asis of satisfatory evidence to be the person(/) whose name (�) are subscribed to the within instrument and acknowledged to me that he/sKe/t�6y executed the same in his/hA/th�r authorized capacity (Vs) , and that by his/(r/t it signature () on the instrument, the persons or the entities 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. WITNESS my hand and official seal. DUL.CE DANIELLE BARKER Commissinrr #' 2©99918 Notary Public: - California z 16 Z Orarsge County4eln v (,?.rl p My Comm. Expires. Feb 12.2019 Signature of Notary Public [SEALS] -22558.KM 030315 17 EXHIBIT "A" LEGAL DESCRIPTION OF THE PROPERTY The Property is more particularly described as that certain real property located in the City of San Juan Capistrano, County of Orange, State of California, more generally described as: Tract No. 17555, in the City of San Juan Capistrano, State of California, as per map recorded in Book Pages through inclusive, of Miscellaneous Maps, in the Office of the County Recorder of said County. _22558.PCM 030315 18 EXHIBIT "B" DEFINITIONS The defined terms set forth below shall have the definitions given to them herein: "Amended Ordinance" shall have the meaning given to such term in Paragraph B of the Recital to the Agreement. "Amending Resolution" shall have the definition given to such term in Paragraph C of the Recitals to the Agreement. "Association" shall mean Oliva Maintenance Corporation, a California nonprofit mutual benefit corporation.. "Authorized Monies" shall have the meaning given to it in Section 6.3 of the Agreement. "Board" shall mean the Board of Directors of the Association. "City" means the City of San Juan Capistrano, California. "Claims Adjuster" shall have the meaning given to such term in Section 4.2 of the Agreement. "Common Area" shall have the meaning given it in Preamble Paragraph A. "Council" shall, have the meaning given to it in Paragraph "B" of Recitals of the Agreement. "Covered Repairs" shall mean repair of damage to Lots, structures, Common, Area or public/private improvements necessitated by Soils Subsidences. "Covered Slopes" means certain slopes described in Section 2.5 of the Agreement and shown on Exhibit "C" attached hereto. "Declaration" shall have the meaning given to it in Paragraph "Ell of Recitals of the Agreement. "Developer" means TNHC SAN JUAN LLC, a Delaware limited liability company and its successors (as described in Section 9.10). "Developer Repair Period" shall have the meaning given it in Section 2.2. "Developer Repair Period Security" shall have the meaning given it in Section 6.1. -22558.FCM 030315 .9 "Director" shall have the meaning given to it in Section. 6.3 of the Agreement. "Effective Date" is defined in the first paragraph of this Agreement. "Geologic Hazard Assessment District" or "GRAD" has the meaning given it in Section. 2.3(b). "Long -Term Covered Repair" shall have the meaning given it in Section 2.3(a) "Lot" or "residential Lot" shall have the meaning given it in Preamble Paragraph A. "Project Fund Amount" means $2,177.10, which is 75% of the fully -funded Surficial Soils Subsidence Fund balance. "Property" means that certain real property more particularly described on Exhibit "A" attached hereto. "Soils Subsidence" is defined in San Juan Capistrano Municipal Code Section 9.3- 545 (c) (2) (A) as a catastrophic displacement of a Covered Slope at a depth up to three feet with a vertical movement of one foot or more, regardless of cause. Soils Subsidence does not include surface cracking and fissures, including desiccation cracks, or erosion (defined as the wearing away of 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. displacement). Surficial damage shall be considered catastrophic if due to the extent of movement, funds in the Surficial Soils Subsidence Fund are not sufficient to repair the damage. "Soils Subsidence Remediation Program" shall have the meaning given to it in Paragraph C of the Recitals. "Soils Subsidence Remediation Period" means the period of time commencing on the Effective Date and ending on the 10th year thereafter. "Surficial Soils Subsidence Fund" is defined in Section 2.4 of this Agreement. The fully -funded balance of the Surficial Soils Subsidence Fund is $2,902.80, which is attributable to 9,676 square feet of Covered Slopes at the City -determined reserve amount of $0.30 per square foot of Covered Slopes. . 22558.FCM 030315 20 LEGEND A: TWT 17655 9,676 SO. FT. fN NO THE DEPICDONS HEREON ARE FOR 1LLUSTRATIV PURPOSES ONLY ANO THE AS -BUILT CONDITION BY DECLARANT SHALL BE CONTROLLINC EXHIBIT "D" NOTICE OF CLAIM FOR LONG-TERM COVERED REPAIR OLIVA NOTICE OF CLAIM UNDER SOILS SUBSIDENCE REMEDIATION PROGRAM TO: CLAIMS ADJUSTER (Name) (Address) (City, ZIP) (Name) (Address of Claim Property) (Mailing Address if different from above) (Phone) This Notice of Claim is made in accordance with the terms of the Agreement Establishing Soils Subsidence Remediation Program ("Slope Agreement") governing the remediation of certain Covered Slopes in the Oliva community in the City of San Juan Capistrano. Owners are advised that the Soils Subsidence Remediation Program applies only to "Covered Slopes" identified on Exhibit C to the Slope Agreement. Claims for damage unrelated to Covered Slopes, Claims otherwise found to be outside the coverage of the Slope Agreement, and Claims for damage found to be caused by the Owner through negligence or willful act will be rejected. Owner agrees to cooperate with requests for entry made by the Claims Adjuster, Developer and GHAD personnel (as applicable) in connection with the investigation of this Claim and any and all remediation work that may be ordered in connection therewith. Capitalized terms used in this Notice of Claim are defined in the Slope Agreement, if not otherwise defined herein. The above-named Owner hereby requests the Claims Adjuster to investigate, allocate responsibility for, and adjust the following claim in connection with a "Soils Subsidence," as defined in San Juan Capistrano Municipal Code Section 9. 3-545 (c) (2) (A) . Description of Claim (attach extra pages, including damage estimates, if necessary): Location of Claimed Damage (attach extra pages or maps if necessary): -22558.FCM 030315 22 Owner Signatures: Date: Date: Signature Print Name Signature Print Name NOTE: There are additional pages attached to this Notice of claim. -22558.Fr- 0303is 23