Loading...
04-0921_RANCHO MADRINA COMMUNITY ASSOCIATION_AgreementRECORDING 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 Recorded in Official Records, Orange County Tom Daly, Clerk -Recorder IIIIIIIIIII!Illilllllllllllilllllll!IIIIIIIIIIIIIIIIIIIIII!!IIIIIIIIIIIIIIINO FEE 2004000896693 01:39pm 10106104 11792Al2 22 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 Iv. Space above this line for Recorder's use only � rN 2 AGREEMENT ESTABLISHING SOILS SUBSIDENCE REMEDIATION PROGRAM This Agreement Establishing Soils Subsidence Remediation Program and Reservation of Easements ("Agreement') is entered into as of a"t( , 2004, by and among WILLIAM LYON HOMES, INC., a California corporation ("Developer'), RANCHO MADRINA COMMUNITY ASSOCIATION ("Association') and the CITY OF SAN JUAN CAPISTRANO ("City'l, 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 Tract No. 16221 as a residential project including open space lots ("Project's, in the City of San Juan Capistrano, County of Orange, State of California. B. On September 15, 1987, the City Council ("Council's of the City passed, approved and adopted Ordinance No. 605 ("Original Ordinance'), requiring that certain residential developments in the City include a Soils Subsidence Remediation Program. On August 15, 1995, the Council passed, approved and adopted Ordinance No. 768 ("Amended Ordinance'l, amending Title 9 of the San Juan Capistrano Municipal Code to add Chapter 10 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. On June 3, 2003, the Council passed, approved and adopted Resolution No. 03-06-03- 01, approving Tentative Tract Map No. 16221 and certain other matters. The City has required, as part of the conditions of approval for the Project, that Developer establish and the Association operate a Soils Subsidence Remediation Program in compliance with Title 9, Chapter 10 of the San Juan Capistrano Municipal Code. The City has also required the Developer and the Association to enter into this Agreement Establishing Soil Subsidence 31705\S LM294 W GRM T\536274.3 09/08/04 SM Remediation Program. This Agreement shall set forth the terms for the implementation by Developer of a Soil Subsidence Remediation Program ("Soil Subsidence Remediation Program'I with respect to Tract No. 16221. D. The Association is a California nonprofit mutual benefit corporation which will own the common area lots within the Project and will serve as the homeowners' association for the Project. E. In addition, Tract 16221 will be subject to the terms of that certain Declaration of Covenants, Conditions, Restrictions and Reservation of Easements for Rancho Madrina (the "Declaration'. F. The parties hereto desire to enter into this Agreement as it relates to the Soils Subsidence Remediation Program only (and not with respect to the "City Home Warranty Program", as defined therein) and as it relates solely to the Project, to, among other things, more clearly set forth the rights and obligations of the parties with respect to the Soils Subsidence Remediation Program. G. By entering into and recording this Agreement, Developer satisfies in full with respect to the Project (i) all conditions of subdivision 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. AGREEMENT Definitions. Defined terms whose initial letters are capitalized herein shall have the meanings given to such terms as set forth in this Agreement, including on Exhibit "B" attached hereto. 2. Soils Subsidence Remediation Program. 2.1 Soils Subsidence Remediation Program and Term. Developer's subdivision approvals for Tentative Tract No. 16221 require that Developer's Project include a "Soils Subsidence Remediation Program". This Agreement sets forth the above -referenced Soils Subsidence Remediation Program as it relates to Final Tract No. 16221. The term of the Soils Subsidence Remediation Program shall be in perpetuity. 2.2 Developer Repair Period. Developer is responsible for making or causing to be made all repairs to correct any damage to Lots, structures or public/private improvements due to Soils Subsidence at Developer's sole expense commencing on the first close of escrow of a residential lot in the Project and continuing for a three (3) year period following the last close of escrow for all Lots within the Project. In the event Developer fails to perform as provided herein, the City shall have the right to draw upon Developer's security posted under the terms of Section 5.1, below, as provided in Section 5.3, below. If the amount in the Surficial Soils Subsidence Fund is less than the minimum amount as specified in Section 2.4(b) and (c) at the conclusion of the Developer Repair Period, then the Developer shall deposit sufficient funds to meet the minimum requirements. 31705\S LM294MRMTl536274.3 09/08/04 W 2.3 Long Term Covered Repairs. After the expiration of the Developer Repair Period, if a Soils Subsidence occurs within the Tract, the Association shall make or cause to be made the Covered Repairs necessitated by such Soils Subsidence ("Long Term Covered Repairs' to the extent funds are available out of the Association's Surficial Soils Subsidence Fund. In the event funds available in the Association's Surficial Soils Subsidence Fund is insufficient to cover the cost of all such Covered Repairs, the Association shall levy and collect special assessments against the owners of the residential lots to restore the Surficial Soils Subsidence Fund to the minimum seventy-five percent (75%) level as often as necessary. 2.4 Surficial Soils Subsidence Fund. The Association is required to collect and maintain a restricted fund to correct damage to individual Lots, structures, or public/private improvements due to soils displacement occurrences. This restricted fund is called a Surficial Soils Subsidence Fund. Developer is required to deposit an initial amount determined by the City into the Surficial Soils Subsidence Fund. Regulation and use of the Surficial Soils Subsidence Fund shall be in accordance with the following: (a) Funds deposited in the Surficial Soils Subsidence Fund can only be used for actual costs associated with correcting Soils Subsidence. The initial security for the Surficial Soils Subsidence Fund shall be in such form and manner as to guarantee and secure the performance of the Developer and shall consist of one of the options set forth in Section 5.2 below. (b) Special Assessments shall be applied to all Lots within the Project. Said Special Assessments shall commence on the first Close of Escrow of a Lot in the Project pursuant to the regulations of the California Department of Real Estate. Said Special Assessments shall be collected by the Association until the Surficial Soils Subsidence Fund reaches a predetermined minimum as established by the City. Developer shall be able to withdraw its initial deposit provided the Surficial Soils Subsidence Fund does not fall below seventy-five percent (75%) of the predetermined minimum. If a claim occurs during the period the Developer is responsible, and the Surficial Soils Subsidence Fund drops below the seventy-five percent (75%) level, the Developer shall restore such fund to the minimum seventy-five percent (75%) level. After the end of the Developer Repair Period (and after any deposit required by Developer at that time pursuant to Section 18.8.3 below), the Association shall levy Special Assessments against the Owners to restore the Surficial Soils Subsidence Fund to the minimum seventy-five percent (75%) level as often as necessary. (c) If the amount in the Surficial Soils Subsidence Fund is less than the minimum amount as specified in Section 5.1 at the conclusion of the Developer Repair Period, then the Developer shall deposit sufficient funds to meet the minimum requirements. (d) Developer has reserved an exclusive license for the benefit of the Association to enter onto Common Area and individual Lots to allow the Association to maintain and inspect all landscaping, irrigation and drainage devices, and all other natural and artificial conditions which affect or might affect the integrity of slopes which are subject to the provisions of this program. (e) 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 31705\SLM294\AGRM'R536274.3 09/08/04 2.5 Applicability of Soils Subsidence Remediation Program. Slopes subject to the soils subsidence remediation program are shown on Exhibit C attached hereto and defined by the City as follows ("Covered Slopes'): (a) Common Area Slopes. All designated common area landscape slopes maintained by the Association pursuant to the Declaration or any notice of addition or supplemental declaration. (b) Manufactured Slopes. All manufactured slopes having a minimum height of five (5) feet in vertical height. (c) Natural Slopes Within 200 Feet of Individual Lots. All natural slopes within two hundred (200) feet of individual Lots, or within 150 feet if within a fuel modification zone to the subdivision, whichever occurs first. 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 895 to 945.5 of the California Civil Code. 3. Claims Procedures and Adiustments. 3.1 During the Developer's Liability Period for the Tract, the Soils Subsidence Remediation Program shall be administered by the Developer. Thereafter, said program shall be administered by the Association. The Association shall retain the services of an independent claims adjusting service for all Long Term Covered Repairs in accordance with the requirements set forth in Section 3.2 below. The service 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 by forms provided by the Association and filed with the independent adjuster, who will promptly adjust such claims after obtaining an analysis on the scope and cost of completing all necessary repairs. The Surficial Soils Subsidence Fund will compensate for the cost of the independent claims adjusting service. 3.2 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. 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"). Any Claims Adjuster so selected shall be subject to approval by the other parties to this Agreement, which approval shall not be unreasonably withheld, delayed or conditioned. Any disapproval of the selected Claims Adjuster shall be given in writing to the administrator of the Soils Subsidence Remediation Program at the time of the claim and to the other parties to this Agreement within ten (10) days following receipt by the disapproving party of written notice of the 4 31705\S LM294W GRMT%536274.3 09/08/04 selection of the proposed Claims Adjuster. If such written disapproval or a written approval are not given within said ten (10) day period, then approval of the proposed Claims Adjuster shall be deemed to have been timely and properly given. If the proposed Claims Adjuster is properly and timely disapproved as contemplated above, then the selection of the Claims Adjuster shall be made by an arbitrator in connection with an arbitration conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association as then in effect. Any such arbitration shall be held and conducted in Orange County, California before one arbitrator who shall be selected by mutual agreement of the parties to this Agreement within fifteen (15) days after any party to this Agreement has notified the other parties that it has commenced or desires to commence an arbitration proceeding for the purpose of selecting a Claims Adjuster. If the parties to the Agreement cannot or do not mutually agree upon an arbitrator within the said fifteen (15) day period, then any party to this Agreement may thereafter request in writing that the presiding Judge of the Superior Court of Orange County, California select and appoint the arbitrator, and any person so selected and appointed by such Judge shall serve as the arbitrator hereunder upon his/her acceptance of such appointment. The arbitrator appointed must be independent and have experience in dealing with soils and Soils Subsidence matters. Final decision by the arbitrator must be made within ninety (90) days from the date the arbitrator is appointed. The parties to this Agreement may submit the names and resumes of proposed Claims Adjusters to the arbitrator, but the arbitrator shall be free to select any Claims Adjuster he or she wishes to select so long as the Claims Adjuster is independent, duly licensed to the extent required, and has experience in handling soils and Soils Subsidence matters. Each party to this Agreement shall bear its own attorneys' fees, costs and expenses incurred in connection with the arbitration. The costs and fees of the arbitrator shall be borne equally by the parties to this Agreement. The decision of the arbitrator in selecting a Claims Adjuster shall be final and judgment may be entered on it in accordance with applicable law in any court having jurisdiction over the matter. The Claims Adjuster selected by the arbitrator as aforesaid shall be deemed the "approved" Claims Adjuster. The approved Claims Adjuster shall be promptly engaged by the party then administering the Soils Displacement Warranty program, and the Claims Adjuster so engaged shall be responsible for promptly investigating, allocating responsibility for and adjusting all claims which allege that a 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: (a) whether the claim is covered by the Soils Subsidence Remediation Program and if so then the scope and estimated cost of the Covered Repairs, (b) who has responsibility under this Agreement for actually performing the Covered Repairs or causing them to be performed, and (c) who has under this Agreement the financial responsibility for the requisite Covered Repairs. The Claims Adjuster shall complete his/its analysis as soon as reasonably possible and shall thereupon issue a written report to all of the parties to this Agreement, which written report shall set forth its findings on the issues referred to above and such other matters as the Claims Adjuster deems appropriate. The parties agree that they shall promptly comply with the decisions and findings of the Claims Adjuster as set forth in such report. The parties intend that the decisions and findings of the Claims Adjuster shall be deemed binding upon them and shall be enforceable against them by a court of competent jurisdiction and any party failing to comply with such decisions and findings of the Claims Adjuster as they affect such party shall be liable for damages and all other relief as may be determined appropriate by a court of competent jurisdiction. 5 31705\SLM294 W GRM7'536274.3 09/08/04 4. Grace Period. A party shall only be deemed in default under this Agreement if such party fails to perform any of its duties or obligations under this Agreement and such failure is not cured within thirty (30) days after written notice of such failure has been given to such party. If such failure cannot reasonably be cured within thirty (30) days after the giving of such notice, then said party shall not be deemed in default under this Agreement if such party commences to cure the failure within said thirty (30) day period and thereafter diligently and in good faith continues to prosecute such curative action to completion. The notice of failure referred to in this Section 4 above shall specify the alleged failure in detail. 5. Security for Developer's Obligations. 5.1 Security for Developer's Obligations During Developer Repair Period. Within fifteen (15) days from the date hereof, Developer shall provide a surety bond or labor and material bond to secure Developer's performance of its obligations under Section 2.2, above. Such security shall be in an amount equal to the sum of Two Hundred Thousand and No/100 Dollars ($200,000.00) times seventy-five percent (75%) as set forth in Section 9-10-03(b)(4)(ii) of the Soils Subsidence Remediation Program. The surety and the form of any bond posted pursuant to this Section shall be subject to the approval of the City, which approval shall not unreasonably be withheld. The security posted pursuant to this Section for the Tract shall be released immediately upon the expiration of the Developer Repair Period for such Tract. 5.2 Security for Developer Repair Period. (a) Deposit of Funds. Within fifteen (15) days from the date hereof, Developer shall deposit into the Association's Surficial Soils Subsidence Fund cash in an amount equal to Two Hundred Thousand and No/100 Dollars ($200,000.00) times seventy-five percent (75%) as set forth in Section 9-10-03(b)(4)(ii) of the Soils Subsidence Remediation Program. (b) Security in Lieu of Cash Deposit(s). In lieu of the cash deposit(s) by Developer into the Association's Surficial Soils Subsidence Fund as provided above, Developer shall have the option to guaranty and secure performance of its obligations under Section 2.3, above, by one of the following alternatives, at the option of Developer with the approval of the City Council: (i) Corporate sureties approved by the City Attorney; (ii) A deposit, 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 (iii) An instrument of credit, from one or more financial institutions subject to regulation by the state or federal government, pledging that the funds necessary to carry out the warranty program are on deposit and guaranteed for payment. (c) Release of Security. The security posted pursuant to this Section 5.2 shall be immediately released by the Association and/or the City, as the case may be, upon the 31705\SLM294 W GRMT536274.3 09/08/04 expiration of the Developer Repair Period, in accordance with Section 2.4(b) above. In addition to the foregoing, subject to the terms of Section 5.6, below, at such time as the balance of the Association's Surficial Soils Subsidence Fund is equal to or greater than the sum of Two Hundred Thousand and No/100 ($200,000.00) times seventy-five percent (75%) as set forth in Section 9- 10-03(b)(4)(ii) of the Soils Subsidence Remediation Program (a) all additional funds collected through assessments pursuant to the terms of Section 6. 1, below, shall be released to Developer, to the extent Developer has deposited cash in the Association's Surficial Soils Subsidence Account pursuant to the terms of Section 5.2(a), above, or (b) in the event Developer has posted security in lieu of cash deposits pursuant to the terms of Section 5.2(b), above, the amount of such security required to be maintained by Developer shall be reduced on a dollar per dollar basis, until Developer has been reimbursed for all of Developer's cash and/or Developer's security has been reduced to zero. 5.3 Rights of City Upon Developer's Default. If during the Developer Repair Period, in accordance with Section 2.2., above, or the period subsequent to the Developer Repair Period pursuant to the terms of Section 2.3, above, Developer (or its successor) fails to perform its obligations as required under those Sections, the City Attorney shall provide written notice to Developer of such failure and provide Developer with an opportunity to cure in accordance with Section 4, above. In the event Developer 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 Director of Engineering and Building ("Director's to draw upon the security posted by Developer pursuant to this Section 5 to perform such work or otherwise cure Developer's default hereunder (the "Authorized Monies'. The Association's Surficial Soils Subsidence Fund and any security provided by Developer pursuant to this Section 5 shall be vested such that the Director can access such funds or security after such Council action and any judicial reference regarding such action pursuant to Section 5.5, below. 5.4 Public Hearing. Developer (or its successor) will be entitled to reasonable notice of such public hearing, will have the right to appear at the hearing where the Council action is considered, and will be entitled to assert any and all defenses which Developer (or its successor) may possess as to such Council action including, without limitation, a claim that the work proposed to be performed is not within the scope Developer's obligation under this Agreement or is not reasonably necessary. 5.5 Dispute Resolution. In the event of a dispute between the City and Developer (or its successor) involving any aspect of the penalty provided for herein including, without limitation, the propriety of the Council action provided for herein, such dispute shall be resolved by a judicial reference pursuant to Section 7, below. 5.6 Deemed Reduction in Developer's Contribution. Developer agrees and acknowledges that if such Council action is taken properly pursuant to this Agreement and under the laws of the State of California, then as a penalty for nonperformance by Developer (or its successor) under the terms of Section 2.3, above, the security posted by Developer pursuant to Section 5.2 shall be deemed (for purposes of timing of recovery of Developer's security only) to have been reduced by an amount equal to the amount of the Authorized Monies. Under those circumstances, Developer's recovery of its funding or posting of security pursuant to Section 5.2 will be delayed until deposits by the Association into the Association's Surficial Soils Subsidence Fund pursuant to Section 6.1, below, build sufficiently to offset the deemed reduction in Developer's deposits or security. 7 31705\SLM294 W GRMTM6274.3 09/08/04 6. Homeowner Association Assessments to Fund the Association's Surficial Soils Subsidence Fund. 6.1 Association to Levy and Collect Monthly Assessments. The Association shall levy and collect homeowner assessments (the "Annual Assessment") with respect to each residential lot in the Project then subject to assessment each month in an amount as provided in the Association's annual budget as approved by the DRE for the Project (the "Budget"), commencing upon the first day of the month following the first close of escrow and conveyance of a residential lot in a DRE Phase (defined below) within the Project that is sold and conveyed to a member of the public under a final subdivision public report issued by the DRE. A "DRE Phase" consists of a group of residential lots, and may include common area lots, that are set forth in the Budget as a phase, approved by the DRE and covered by a single final subdivision public report. A portion of the Annual Assessment shall be designated to fund the Association's obligations under Section 2.3 as provided in the Budget (the "Association's Surficial Soil Subsidence Fund'). In no event shall the Association's Budget and the resulting Annual Assessment be changed to provide for the funding of less than Thirty -Four and 72/100 Dollars ($34.72) per month per residential lot then subject to assessment into the Association's Surficial Soil Subsidence Fund without the prior approval of the City and the Developer, which approval shall not be unreasonably withheld. Notwithstanding the foregoing, the Association shall have the right to change the Budget and/or the Annual Assessment pursuant to the terms of the Declaration without the consent of the City or the Developer (except as otherwise required under the terms of the Declaration) provided any such change does not result in the funding of less than Thirty -Four and 72/100 Dollars ($34.72) per month per residential lot then subject to assessment into the Association's Surficial Soils Subsidence Fund. The Association's Surficial Soils Subsidence Fund, consisting of assessment payments and interest thereon, is intended to grow to a total of an amount (the "Project Fund Amount'l equal to the sum of Two Hundred Thousand and No/100 Dollars ($200,000.00) times seventy-five percent (75%) as set forth in Section 9-10-03(b)(4)(ii) of the Soils Subsidence Remediation Program, by the end of the Soils Subsidence Warranty Period or earlier. The Association's Surficial Soils Subsidence Fund shall be established and maintained by the Association as a restricted reserve fund so that the funds therein shall be available to the Developer, the Association or the City for payment or reimbursement of costs for Covered Repairs implemented or to be implemented by the Developer and/or the Association as the party responsible therefor in accordance with the provisions of this Agreement. Monies constituting the Association's Surficial Soils Subsidence Fund and interest thereon shall be deposited and retained in a restricted reserve account ("Association's Surficial Soils Subsidence Account") to be established by the Association in its name as soon as practicably possible following the later of full execution and delivery of this Agreement or the issuance by the DRE of the final subdivision public report covering the first phase of development of any residential lots within the Project. Monies in the Association's Surficial Soils Subsidence Account shall only be withdrawn and used for the purposes contemplated in this Agreement. 6.2 Cessation of Assessments Under Certain Circumstances. Except as otherwise provided in this Agreement, the Association may cease levying and collecting assessments as contemplated in Section 6.1 upon the last to occur of (a) when Developer has been fully reimbursed pursuant to Section 5, or (b) when the total balance of the Association's Surficial Soils Subsidence Account reaches the Project Fund Amount. 8 31705\SLM294 W GRM71536274.3 09/08/04 6.3 Replenishment of the Association's Surficial Soils Subsidence Account. In the event the Association's Surficial Soils Subsidence Account is depleted by the cost of making Covered Repairs, as contemplated by Section 2.4 of this Agreement, the Association will, by regular or special assessments, restore the total amount in the Association's Surficial Soils Subsidence Account to the lesser of (a) the balance of such fund immediately prior to such depletion or (b) the Project Fund Amount, within a reasonable period of time. 6.4 Responsibility of the Association and its Board of Directors. The Association and its Board of Directors shall be responsible for establishing and maintaining the Association's Surficial Soils Subsidence Fund and the Association's Surficial Soils Subsidence Account as herein provided, and for levying and using best efforts to collect assessments to fund the Association's Surficial Soils Subsidence Fund as herein provided. 7. Dispute Resolution. Any dispute arising out of this Agreement, but excluding any construction defect claims or right to repair claims made under Section 895 to 945.5 of the California Civil Code, shall be submitted to general judicial reference pursuant to California Code of Civil Procedure Sections 638 and 641-645.1 or any successor statutes thereto. Construction defect claims or right to repair claims made under Section 895 to 945.5 of the California Civil Code, shall be resolved in accordance with Article XIX of the Declaration. Within ten (10) days of receipt by any party of a written request to resolve any such dispute, the parties shall agree upon a single referee. If the parties are unable to agree upon a referee within such ten (10) day period, then any party may thereafter seek to have a referee appointed under the California Code of Civil Procedure Sections 638 and 640. If the referee is appointed by the Court, the referee shall be a retired judge from JAMS, the American Arbitration Association ("AAA') or similar mediation/arbitration entity. The proposed referee may be challenged for any of the grounds listed in Section 641 of the California Code of Civil Procedure. The parties shall cooperate in good faith to ensure that all necessary and appropriate parties are included in the judicial reference proceeding. If a dispute involves parties other than those listed above, this provision shall be interpreted to bring those third -party disputes into the general reference procedure prescribed herein to the extent permitted by law. All parties shall cooperate in good faith to ensure that all necessary and appropriate parties are included in the judicial reference proceeding. 7.1 The parties shall use the procedures adopted by JAMS for judicial reference (or any other entity offering judicial reference dispute resolution procedures as may be mutually acceptable to the parties), provided that the following rules and procedures shall apply in all cases unless the parties agree otherwise: (a) If the Developer is a party to such judicial reference proceedings, any fee to initiate such proceedings shall be advanced by the Developer; however, the fees and costs of the judicial reference proceedings (e.g., the fee for the referee and all expert witness fees and costs, etc., but excluding all attorneys' fees) shall ultimately be borne as determined by the referee. In all cases, each party shall bear its own attorneys' fees at its sole cost and expense; (b) The proceedings shall be heard in the County in which the Project is located, unless all parties agree to a different location; 9 31705\SLM294 W GRM1\536274.3 09/08/04 (c) The referee shall have the power to decide all issues of fact and/or law, and to report a statement of decision to the court on such issues, and to issue all recognized remedies available at law or in equity for any cause of action that is before the referee; (d) The referee may require one or more pre -hearing conferences; (e) The parties shall be entitled to discovery, and the referee shall oversee discovery and may enforce all discovery orders in the same manner as any trial court judge; (f) A stenographic record of the proceedings shall be made; (g) The referee's statement of decision shall contain findings of fact and conclusions of law to the extent applicable and shall stand as the decision of the court; (h) The referee shall have the authority to rule on all post -hearing motions in the same manner as a trial judge; (i) The parties shall promptly and diligently cooperate with one another and the referee, and shall perform such acts as may be necessary to obtain a prompt and expeditious resolution of the dispute; and 0) The statement of decision of the referee upon all of the issues considered by the referee shall be binding upon the parties, and upon filing of the statement of decision with the clerk of the court, or with the judge where there is no clerk, judgment may be entered thereon in the same manner as if the action had been tried by the court. The decision of the referee shall be appealable as if rendered by the court. 7.2 WAIVER OF COURT AND JURY TRIAL. AS TO ALL DISPUTES SUBJECT TO THE ALTERNATIVE DISPUTE RESOLUTION PROVISIONS SET FORTH OR REFERENCED IN SECTION 7, EACH PARTY WAIVES ANY RIGHTS TO JURY TRIAL, APPEAL AND OTHER CIVIL LITIGATION PROCEEDINGS FOR SUCH DISPUTES, EXCEPT AS OTHERWISE EXPRESSLY SET FORTH OR REFERENCED HEREIN. IN THE EVENT ANY OF THE PROCEDURES SET FORTH OR REFERENCED HEREIN ARE DETERMINED TO BE INVALID OR UNENFORCEABLE, IN WHOLE OR IN MATERIAL PART, SUCH THAT THE RESOLUTION OF THE DISPUTE SHALL PROCEED BY WAY OF CIVIL LITIGATION PROCEEDINGS, EACH PARTY NONETHELESS WAIVES THE RIGHT TO JURY TRIAL WITH RESPECT TO SUCH DISPUTE. 8. Miscellaneous. 8.1 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. to 3 l 705\S LM 294 W GRM T\53 6274.3 09/08/04 (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. 8.2 Reservation of License and Right to Enter. (a) There is hereby reserved for the benefit of Developer and its successors and the Association, a license and right to enter onto the common areas and individually -owned lots within the Project so that Developer or its successors and the Association and their agents may (a) inspect all landscaping, irrigation and drainage devices, and all other natural and artificial conditions which affect or might affect the integrity of the slopes which are the subject of the Slope Warranty, and (b) perform the duties of Developer to the full extent provided for herein. (b) Appropriate provisions in the grant deeds will grant the Association a license and right to enter onto the common areas and individually -owned lots of the Project so that the Association or its agents may inspect, maintain and repair the slopes within the Project to the full extent provided for herein. 8.3 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. 8.4 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. 8.5 Collection and Reporting. The Board of the Association will be responsible for the collection of homeowner assessments for the Association's Surficial Soils Subsidence Fund and accounting for such assessments and interest thereon. The Board of the Association will report to Developer and to the City the incidence of covered and non -covered claims, as well as the balance in the Association's 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 Board 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. 8.6 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. 8.7 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. 8.8 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, 31705lSLM294 W GRMTR536274.3 09/08/04 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. 8.9 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, except Article XVIII of the Declaration, which was prepared in accordance with City conditions of approval for Tract No. 16221 and is consistent with this Agreement. 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. 8.10 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 Project, and any or all of them. (b) Effective upon the sale or other conveyance of Tract 16221 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 prorata portion thereof shall be appropriately released and exonerated to Developer by the City. 8.11 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. 8.12 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. 8.13 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. 8.14 Termination. Unless otherwise agreed among the parties, this Agreement shall continue in perpetuity. 8.15 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 telecopier or other reliable electronic type mail system to the party to whom the notice is directed at the address of such party hereinafter set forth, or such other 12 31705\SLM294W GRMTR536274.3 09/08/04 address and to such other persons as the parties may hereafter designate. Any such notice shall be deemed given upon receipt if by personal delivery, forty-eight (48) hours after deposit in the United States mail, if sent by mail pursuant to the foregoing, or twenty-four (24) hours after deposit with Federal Express or other reputable overnight delivery service, or twenty-four (24) hours after transmission by telecopier or other reliable electronic type mail system. To Developer: William Lyon Homes, Inc. 4490 Von Karman Avenue Newport Beach, California 92660 Attention: Tom Grable Copy To: Sheri L. Marvin, Esq. Jackson, DeMarco, Peckenpaugh 2030 Main Street, Suite 1200 Irvine, California 92614 To Association: Rancho Madrina Community Association c/o W,'Jliam LV,,,,, %lames Inc. H�-140 Idrs:� %:ar�rrtla� 411ok4oi t RrotA , Gsl 9 2666 To the City: The City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: Director of Engineering and Building Telecopier: (714) 493-1171 The City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: City Attorney Telecopier: (714) 493-1171 13 31705\SLM294\AGRMTM6274.3 09/08/04 IN WITNESS WHEREOF, this Agreement was executed on the date first above written. CITY: CITY OF SAI�YJYIAN CAPISTRANO By: Joe Its:� R. Monahan, City Clerk DEVELOPER: WILLIAM LYON HOMES, INC., a California corporation By: Name: Thomas G Grable Its: AssistnM Secratary ASSOCIATION: RANCHO MADRINA COMMUNITY ASSOCIATION, California no t utua enefit corporation By: Name: 11wnw 6. Its: President Approves to for / and cont nt Thi s__ay of 004 John Shawj lCity Attorney City of San Juan Capistrano 14 31705\SLM294 W GRM'R536274.3 09/08/04 PUBLIC AGENCY FORM OF ACKNOWLEDGEMENT State of California ) County of Orange ) ss. City of San Juan Capistrano ) (Gov't Code 40814 & Civil Code 1181) On September 22, 2004 before me, Margaret R. Monahan, City Clerk, personally appeared Joe Soto personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. (SEAL) Capacity Claimed by Signers Mayor Title Signers are Representing City of San Juan Capistrano OPTIONAL Description of Attached Document Agreement Establishing Soils Subsidence Remediation Program STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE 1 On September 29, 2004 before me, Paula Leslie Gruner, Notary Public, personally appeared, Thomas G. Grable, personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. vauia Leslie Gruner, rvorary-Pupuc Commission Expires June 4, 2008 .,r �..^..> .d �iMM11..NRillpklinp10�1�tE `'S':'�'3 4 .a.._t STATE OF CALIFORNIA ) ss. COUNTY OF ORANGE On September 29. 2004 before me, Paula Leslie Gruner, Notary Public, personally appeared, Thomas G. Grable and Matt Zaist, personally known to me to be the person(s) whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities, and that by their signatures on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. , WITNESS my hand and official seal. Si 'Paula Leslie Gruner, Notary Public Commission Expires June 4, 2008 ------------ ---------- - Mqco 47,�Pl� Aw=e:U AAM 9UqYAATO" EXHIBIT A LEGAL DESCRIPTION OF PROPERTY That certain real property located in the City of San Juan Capistrano, County of Orange, State of California, described as follows: Tract No. 16221, as shown on a Subdivision Map, Filed on , 2004, in Book , Pages _ to , inclusive, of Miscellaneous Maps, in the Office of the Orange County Recorder. 3I705\SLM294\AGRM71536274.3 09/08/04 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. "Annual Assessment" shall have the meaning given to it in Section 6.1 of the Agreement. "Association" shall mean Rancho Madrina Community Association, a California nonprofit mutual benefit corporation. "Association's Surficial Soils Subsidence Fund" shall have the meaning given to it in Section 6.1 of the Agreement. "Association's Surficial Soils Subsidence Account" shall have the meaning given to it in Section 6.1 of the Agreement. "Authorized Monies " shall have the meaning given to it in Section 5.3 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 3 of the Agreement. "Council" shall have the meaning given to it in Paragraph `B" of Recitals of the Agreement. "Covered Repairs" shall mean Damage to Lots, structures or public/private improvements due to soil displacement occurrences occurring after the Developer Repair Period shall be corrected by the Geologic Hazard Assessment District with funds from the Surficial Soils Subsidence Fund. The costs of performing the Covered Repairs shall be deemed surficial soils subsidence expenses and shall be paid from the Surficial Soils Subsidence Fund. "Covered Slopes" means the slopes within the Property 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 William Lyon Homes, Inc., a California corporation. 31705\SLM294W,GRMT%536274.3 09/08/04 "Developer Repair Period" shall mean the three (3) year period that Developer will be required make or cause to be made all repairs to correct any damage to Lots, structures or public/private improvements due to soils displacement at Developer's sole expense. The three (3) year period shall commence on the last close of escrow for all Lots within the Project. "Director" shall have the meaning given to it in Section 5.3 of the Agreement. "DRE" shall mean the California Department of Real Estate and any successor thereto. "Project" shall have the meaning given to it in Paragraph A of the Recitals to this Agreement. "Project Fund Amount" shall have the meaning given to it in Section 6.1 of the Agreement. "Property" means that certain real property more particularly described on Exhibit "A" attached hereto. "Soils Subsidence" means is defined as displacement of a manufactured slope at a depth of up to three (3) 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, sufficient funds as required under Section 5.1 herein are not available to repair the damage. "Soils Subsidence Remediation Program" shall have the meaning given to it in Paragraph C of the Recitals and in Paragraph 2.1 of this Agreement. "Tract" means Tract No. 16221, as more particularly described on Exhibit "A" attached hereto. 31705\SLM294W GRMl1536274.3 09/08/04 EXHIBIT C x2400 PASEO ADELANTO SAN JUAN CAPISTRANO, CA 92675 (949) 4931171 (949) 4931053 FAX www.sanjuancapistrano. org September 30, 2004 Clerk -Recorder's Office County of Orange P.O. Box 238 Santa Ana, California 92701 Re: SENT VIA CERTIFIED MAIL The noted document is enclosed for recording: MEMBERS OF THE CITY COUNCIL When placed of record, please return the recorded document to this office. SAM ALLEVATO DIANE L. BATHGATE WYATT HART JOE SOTO DAVID M. SWERDLIN A duplicate copy of this letter is enclosed. Please stamp Document Number and date of recording on the duplicate letter and return it to this office in the enclosed, stamped, self-addressed envelope at your earliest convenience. Thank you for your assistance. Very truly yours / �/i � � / / / �� ► �---civ �' R. Monahan ./ S,atn Shoucair, Senior Engineer t! . ,:Ray Holland, Interim Engineering & Building San Juan Capistrano: Preserving the P 7001 2510 0007 3835 9/21/2004 AGENDA REPORT D8 TO: Dave Adams, City Manager PJ(^" FROM: Ray Holland, Interim Director of Engineering & Building SUBJECT: Consideration of Agreement Establishing Soils Subsidence Remediation Program; (Tract 16221, William Lyon Homes, Inc.)(Rancho Madrina Community Association) RECOMMENDATION By motion; approve the Agreement Establishing Soils Subsidence Remediation Program with Rancho Madrina Community Association and William Lyon Homes, Inc. for Tract 16221, for William Lyon Homes, Inc. SITUATION A. Summary and Recommendation Tentative Tract No. 16221, William Lyon Homes, is required to establish by agreement, a Soils Subsidence Remediation Program as provided by City Municipal Code Section 9-3-545, and as conditioned by Resolution No. 03-06-03- 01, page 18, Condition 1.27 (Attachment 1). The agreement, provided in Attachment 2, provides the mechanism to establish such program. The agreement has been reviewed by the City Attorney and found to be consistent with the provisions of the Code. Staff is, therefore, recommending its approval. B. Background On June 3, 2003, the City Council approved William Lyon Homes' Tentative Tract Map 16221, which allowed the subdivision of a 78.54 acre parcel, into 119 residential lots (Attachment 3). One of the conditions of approval requires the developer to provide a Soils Subsidence Remediation Program. The final map was submitted to the City in February of 2004, and is currently in its final review process. On August 15, 1995, the City Council passed, approved and adopted Ordinance No. 768, codifying into the Municipal Code Section 9-3.545, Soils Subsidence Remediation Program of Title 9, Article 5, "Land Use Remediation Program of Title 9, Article 5, "Land Use". Agenda Report September 21, 2004 Paae 2 This program consists of two parts: Surficial Soils Displacement Element: Directed at minor slope displacement, defined by the Municipal Code as not exceeding three feet in depth. The program provides for the developer to deposit an initial amount of funds based on the slope areas maintained by the HOA. As residents move into the development, a portion of their monthly fees would be put into this fund. Once the residents' deposits reached 75% or more of the developer's initial deposit, then that deposit would be released back to the developer. 2. Catastrophic Soils Displacement Element: Requires the formation of a Geologic Hazard Abatement District (GHAD). The GHAD provides a mechanism by which any major slope failure could be abated by assessment to the property owners. It is intended to provide for repairs in the long term beyond the developer's obligation. This Agenda Report deals only with the Surficial Soils Displacement Element. The Catastrophic Soils Displacement Element is concurrently being formed and processed separately as it requires City Council authorization to initiate the District, followed by a public hearing process. William Lyon Homes Inc. Agreement The Agreement (Attachment 2) has been drafted and reviewed by City staff and the City Attorney and found to be consistent with the Municipal Code requirements. Important elements provided in the agreement include: Developer's liability for any slope failure within the first three-year period. Surficial slope damages could be paid for using the Geologic Hazard Abatement District if the costs exceed the amount in the Surficial Slope Damage Program fund. 3. Return of developer's funds consistent with the requirements of the San Juan Municipal Code. 4. Homeowner assessments to special fund. The City Attorney has reviewed this Agreement and found it to be consistent with the City's Municipal Code requirements and other applicable provisions of law. Staff believes the Agreement is acceptable and recommends approval by the City Council. Agenda Report Paae 3 FINANCIAL CONSIDERATIONS There is no cost impact to the City's General Fund. PUBLIC NOTIFICATION William Lyon Homes, Inc. * Rancho Madrina Community Association (HOA) * Agenda report included RECOMMENDATION September 21, 2004 By motion; approve the Agreement Establishing Soils Subsidence Remediation Program with Rancho Madrina Community Association and William Lyon Homes, Inc. for Tract 16221, for William Lyon Homes, Inc. Respectfully submitted, Ray Holland Interim Director of Engineering & Building SS:jcr Prepared by: r 1&t « Sam ucair senior Engineer Attachments: 1. Resolution No: 03-06-03-01, Approving Tentative Tract Map 16221 2. Agreement Establishing Slope Displacement Warranty Program 3. Vicinity Map CAMyFiles\Agenda\Tracts\Tr 16221 Rancho Madrina\2- Soils -Agenda Approving Soils Subsidence Agreementl.doc RESOLUTION NO. 03-06-03-01 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, APPROVING A TENTATIVE TRACT MAP AND HILLSIDE MANAGEMENT APPLICATION FORTHE DEVELOPMENT OF 124 SINGLE-FAMILY DETACHED HOME LOTS ON AN EXISTING 78.6 ACRE PARCEL LOCATED ALONG THE EAST SIDE OF RANCHO VIEJO ROAD NORTH OF ORTEGA HIGHWAY (ASSESSOR'S PARCEL NUMBERS 650-141-01, 04, & 14; 650-152-09; 650-552-03, 04, 06, & 07)(HONEYMAN RANCH -WILLIAM LYON HOMES, INC.)(TTM 16221, HM 01-02) Whereas, the William Lyon Company requests approval of planning entitlements for an existing 78.60 acre site located along the east side of Rancho Viejo Rd. north of Ortega Highway to develop one -hundred and twenty-four (124) single-family detached home lots. The proposed zone change application would change the zoning district designation from "HR" (Hillside Residential) to "PC" (Planned Community) and establish a Comprehensive Development Plan (CDP) forthe property. The f roperty is General Plan - designated "VLD" (Very Low Density Residential 0-1.0 du/ac), "LD" (Low Density Residential 1.0-2.0 du/ac), "MLD" (Medium Low Density Residential 2.0-3.5 du/ac), "MD" (Medium Density Residential 3.5-5.0 du/ac), and a General Plan -designated "major ridgeline° bisects a portion of the site; and, Whereas, the proposed project has been processed pursuant to Section 9-2.345, Development Review of the Land Use Code; and, Whereas, the Environmental Administrator has required preparation of an environmental impact report pursuantto Section 15081 of those Guidelines; has issued the Notice of Preparation (NOP) pursuant to Section 15082 of those guidelines, has overseen the preparation of the Draft Environmental Impact Report (DEIR) prepared pursuant to Section 15084 of those Guidelines, has issued a Notice of Completion pursuant to Section 15085 of those Guidelines, and has otherwise complied with all applicable provisions of the California Environmental Quality Act (CEQA); and all mitigation measures will be included in the final approving resolution as conditions of approval; and, Whereas, the Cultural Heritage Commission conducted a duly -noticed public meeting on Tuesday, November 26, 2002 pursuant to the provisions of Administrative Policy 409, and Planning Department Policy 510 to consider public testimony and recommended conditional approval of the proposed project including relocation of the Arley Leck House; and, Whereas, the Parks, Recreation, & Equestrian Commission conducted a duly - noticed public meeting on Monday, November 18, 2002 and December 16, 2002 pursuant to the provisions of Administrative Policy 409, and Planning Department Policy 510 to -I- ATTACHMENT 1 review the proposed project and consider public testimony, and recommended conditional approval of the proposed project; and, Whereas, the Transportation Commission conducted a duly -noticed public meeting on Wednesday, December 11, 2002 and Wednesday, January 8, 2003 pursuant to the provisions of Administrative Policy 409, and Planning Department Policy 510 to review the proposed project and consider public testimony, and recommended denial ofthe proposed project; and, Whereas, the Design Review Committee conducted public meetings on February 20 and March 20, 2003 to review the proposed project and consider public testimony, recommended approval of the proposed architectural and landscape concept, and forwarded the Committee's comments on broader site planning issues to the Planning Commission for consideration; and, Whereas, the Planning Commission conducted duly -noticed public hearings on March 11, and April 8, 2003 pursuant to the provisions of Section 9-2.335 of the Title 9, If Land Use Code, Administrative Policy 409, and Planning Department Policy 510 to consider public testimony. NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of San Juan Capistrano does hereby make the following findings: 1. The proposed project is consistent with the policies and objectives of the General Plan Land Use Element because the project will result in the development of residential land uses and structures consistentwith the density limits established by the Land Use Element designations and the City's slope density policy; and, 2. The proposed project is consistent with the policies and objectives of the General Plan Circulation Element because the project includes provisions for improving Rancho Viejo Road consistent with the "Master Plan of Streets and Highways (MPSH)"; and, 3. The proposed project is consistent with the policies and objectives of the General Plan Circulation Element because the project includes provisions for providing emergency vehicle access to that neighborhood; and, 4. The proposed project is consistent with the policies and objectives of the General Plan Circulation Element because the project includes provisions for providing alternative access to the Ortega Highway neighborhood thereby improving general traffic safety by reducing subdivision street traffic on Ortega Highway; and, 5. The proposed project is consistent with Title 8, Article 13 of the Municipal Code which establishes design standards forgate-guarded neighborhoods subjectto the conditions of approval contained herein; and, -2- SP 6. The proposed project is consistent with the policies and objectives of the General Plan Circulation Element because the project includes provisions for establishing trails and recommended conditions of approval would provide for feeder trails to existing residential neighborhoods which would result in transportation alternatives; and, 7. The proposed project is consistent with the policies and objectives of the General Plan Conservation and Open Space Element because the project includes provisions for establishing the "Belford-Marbella Trail" through the proposed tract; and, 8. The proposed project is consistent with the policies and objectives of the General Plan Parks & Recreation Element because the project is not designated for public land dedication and does not propose public parkland dedication. The conditions of approval herein include provisions for payment of park in -lieu fees; and, 9. The proposed project is consistent with Section 9-4.106, Bicycle and equestrian trails because conditions of approval incorporatethe requirLd trail design standards; and, 10. The proposed project is consistent with Article 9-4.3, Parkland Land Requirements because conditions of approval require payment of in -lieu fees consistent with the methodology established by these provisions. 11. The proposed project will be consistent with the General Plan Cultural Resources Element because preservation of the Arley Leck House is consistent with Cultural Resources Goal 1 which states that the City will "preserve and protect historical, archaeological, and paleontological resources." 12. The proposed project will be consistent with the General Plan Cultural Resources Element preservation on-site, or through relocation of the Arley Leck House is consistent with Policy 1.1 which states that the City will "balance the benefits of development with the project's potential impacts to existing cultural resources"and Policy 1.2 which states that the City will 'identify, designate, and protect buildings and sites of historic importance." NOW, THEREFORE, BE IT FURTHER RESOLVED, thatthe City Council of the City of San Juan Capistrano hereby approves the project subject to the following conditions of approval: Parks & Recreation Commission conditions of approval (note: trail improvements= related conditions are included in the Engineering & Building conditions ofapprovall P-1. Prior to the City releasing any final map for recordation, the project shall pay the applicable park in -lieu fees consistent with the provisions of Article 9-4, Park Land -3- 11P Requirements of Title 9, Land Use Code (i.e., 126 lots/units x 3.2 residents per unit x 5 acres/1000 residents x $725,000/acre = $1,461,600). i Planning Department conditions of approval L-1 Prior to final map approval, the project shall secure approval of a preliminary site plan to relocate and rehabilitate the Arley Leck House off-site (note: relocation of the Ariey Leck House to the Los Rios "SP" Specific Plan area requires approval of a Site Plan Review and Landmark Alteration application by the Cultural Heritage Commission and the Planning Commission). I n conjunction with grading operations, the project shall relocate the Leck House to the approved off-site location. L-2 The project shall install an electronic -operated gate located along the existing private access easement that provides the "Ortega Highway Neighborhood" with access via Ortega Highway. The gate shall be controlled through a proprietary card reader system which shall be managed by the Honeyman Ranch Homeowners Association property management company. The conditions, covenants, and restrictions shall include a provision restricting the issuance of gate cards for the Ortega Neighborhood gate to the seven (7) Ortega property owners only and shall prohibit issuance to all Honeyman Ranch residents. The final location and specific design of the gate shall be subject to the review and approval of the City Engineer or his designee. The gate shall be installed and operational concurrently with the opening and availability of Street "G" access to the neighborhood While it is the City's intent that the gate be used primarily for the purpose of emergency and service access only to the Ortega Highway Neighborhood, the City recognizes that the Ortega Highway Neighborhood property owners retain the right to use the gate for general access purposes. The project shall establish appropriate provisions and legal documentation for maintenance of the gate by the Honeyman Ranch homeowner's association in a manner acceptable to the City Attorney or his designee. The gate shall be maintained closed at all times to prevent access by any party other than Ortega Highway Neighborhood property owners. L-3 Prior to or with the submission of the first final subdivision map, the project will prepare and submit a preliminary design plan for the Rancho Viejo Road Corridor which includes the proposed location and design of the following elements: gate - guarded (including paving, control boxes, project identification sign, gates, etc.), street and slope landscaping, privacy walls, retaining walls, utility vaults and which shall be subject to review and approval by the Design Review Committee for consistency with the approved conceptual plan and design guidelines. Prior to approval of the first final subdivision map, the project shall submit final improvement plans for the Rancho Viejo Road corridor which shall be subject to 131 SP review and approval by the Planning Director or his designee. Lots along Rancho Viejo Road shall be developed with a combination of one and two-story residences. Prior to approval of the first final subdivision map, the project shall submit model home architectural plans, and a materials and color board which shall be subject to Design Review Committee (DRC) review and approval. L-4 Prior to issuance of building permits, the project will prepare and submit preliminary site plans for proposed Lots 118-123 which shall be subject to Planning Director review and approval for compliance with the City's Conservation and Open Space Element and specifically, hillside development guidelines. The Planning Director may refer such plans to the Planning Commission for review and action. L-5 The Design Guidelines shall be revised to require that the landscape plan incorporate a native plant palette for those manufactured slopes directly adjoining undisturbed areas subject to the review and approval of the Design Review Committee. 4 L-6 Prior to approval of any final map, the project shall record a legal instrument providing for the relocation (vacation and dedication) of the private access easement which presently serves the Maddy and Bill Waters property located at 31050 Avenida Los Cerritos (650-552-05). A certified copy of the recorded instrument shall be provided to the City. Otherwise, the project shall prepare and submit a modified tentative tract map for City review and approval. The Planning Director may approve the modified tentative tract map pursuant to Section 9- 2.3.03(a)(9) of Title 9, Land Use Code. Otherwise, the modified tentative tract map shall be subject to Planning Commission review and City Council approval. L-7 Prior to approval of any final map, the project shall record a legal instrument providing for the necessary vacation and dedication of private access easements which presently serve properties along Woods Lane. A certified copy of the recorded instrument shall be provided to the City. Otherwise, the project shall prepare and submit a modified tentative tract map for City review and approval. The Planning Director may approve the modified tentative tract map pursuant to Section 9-2.103(a)(9) of Title 9, Land Use Code. Otherwise, the modified tentative tract map shall be subject to Planning Commission review and City Council approval. L-8 Prior to approval of any final map, the project shall record a legal instrument providing forthe necessary vacation and/or dedication of private access easements for the Ortega Highway neighborhood which are necessary to implement proposed Street "J". A certified copy of the recorded instrument shall be provided to the City. Otherwise, the project shall prepare and submit a modified tentative tract map for City review and approval. The Planning Director may approve the modified tentative tract map pursuant to Section 9-2.3.03(a)(9) of Title 9, Land Use Code. Otherwise, the modified tentative tract map shall be subject to Planning Commission review -5- 3P and City Council approval. Should the project pursue an alternative tract map design which eliminates access forthe Ortega neighborhood via Streets "G" and "J, " the requirement for modifications to the private access easements shall become null and void. L-9 Prior to approval of any final tract map, the project shall submit preliminary design plans for the gate -guarded entrance including all signage, hardscape and landscaping, which shall be subject to review and approval by the Design Review Committee. The proposed gate -guarded entrance shall be re -designed to align with the existing centerline of the Avenida los Cerritos intersection subject to the review and approval of the City Engineer or his designee. L-10 Adequate space shall be accommodated for on-site source separation of solid waste during both pre -construction and post -construction activity. Also, all building site plans shall provide an area for recycling space allocation as required by Land Use Code Section 9-3.629. Prior to the issuance of grading permits, the applicant shall submit a written waste management plan and site plan depicting the location of solid waste receptacle(s) to accumulate on-site generated solid waste for recycling purposes. Prior to issuance of the final Certificate of Occupancy, the applicant shall submit solid waste generation, disposal, and recycling records. L-11 Prior to final map approval, the improvements plans shall provide for development of passive, "vest pocket" parks throughout the proposed project. The number and location of passive, "vest pocket" parks shall be as indicated on the approved tentative tract map. The "vest pocket" parks shall provide passive open space and may include benches, paths, ornamental landscaping and similar improvements, but shall not include any active recreation facilities. The final map landscape plans shall include a landscape palette which incorporates an orange grove element. Engineering & Building conditions of approval THE FOLLOWING CONDITIONS SHALL BE SATISFIED PRIOR TO APPROVAL OF THE FIRST FINAL MAP OR EACH FINAL MAP BY THE CITY COUNCIL: 1.1. Street -and Development Names. Prior to approval of each final map within the boundaries of this Tentative Tract Map, the applicant shall submit to the City's Planing Director for review, and shall obtain approval for, the name of the development or developments and the names of all proposed streets within the tentative tract's boundaries. All approved street names shall be indicated on the Final Map. (Ping. & Engr.) 1.2. Compliance with Mao Act and Municipal Code. Prior to approval of each final map, the tract map shall be prepared and submitted in full compliance with the State of California Subdivision Map Act and the City of San Juan Capistrano Municipal Code, except as authorized by the City Council and/or Planning Commission. The am SP attention of the applicant and his engineer are directed to Section 9-2.3 and 9-4 of the Municipal Code. (Engr.) 1.3. Payment of Fees and Posting of Sureties. Prior to approval of each final map the applicant shall fulfill all applicable engineering fee requirements in accordance with the City Municipal Codes, as last revised, the Capistrano Valley Water District Schedules of Rates and Charges, as last revised, and post securities to insure satisfaction performance of proposed on-site and off-site improvements, including but not limited to, grading, drainage, landscape and irrigation, erosion and sediment control, sewer, water, street, traffic circulation and all appurtenant improvements. (Engr.) 1.4. Storm Runoff. Hydraulic/hydrology Calculations. Prior to approval of each final map or issuance of any grading permit, whichever occurs first, the applicant shall submit to the City Engineer for review, and shall obtain approval for, a Storm Runoff Management Plan prepared by a Registered Civil Engineer. The Runoff Management Plan shall show existing and proposed facilities, shall provide for acceptance of historic drainage from adjacent upstrearA properties, shall show hydraulic and hydrology studies and calculations and the methods of draining on- site and tributary areas without exceeding the capacity of any impacted street or facility and without affecting existing downstream drainage system. Said study shall be consistent with the City's Master Drainage Plan and in accordance with all applicable City regulations and Orange County Public Facilities & Resources Department (PF&RD)design criteria, and standards. (Engr.) 1.5. Soils/Geology. Prior to approval of each final map or grading permit, whichever occurs first, the applicant shall submit to the City Engineer and Building Official for their review, and shall obtain approval for, a Soils Report/Geotechnical Feasibility Study prepared by a Registered Geologist and Soils Engineer to determine the seismic safety and soils stability of all proposed development improvements for the project and any affected adjacent properties and to provide preliminary pavement sections and substructure bedding/backfill recommendations. (Engr.) 1.6. Wastewater Study. Prior to first final map approval, the applicant shall submit to the City Engineer for review, and shall obtain approval for, a Wastewater Feasibility Study, prepared by a Registered Civil Engineer, which evaluates the proposed development project and mitigates its anticipated impact on the existing Wastewater facilities system. Said study shall be consistent with the City's Master Plan of Wastewater Facilities and the Special Provisions for the Construction of Sanitary Sewers. (Engr.) 1.7. Grading Plans. Prior to approval of the first final map or issuance of any grading permit, whichever occurs first, the applicant shall submit to the Planning Directorfor City review and approval, Mass Grading Plans for the entire project site. Prior to grading permit issuance, City staff shall prepare a grading impact assessment and -7- >P impose appropriate conditions of approval on the grading permit consistent with City Council Policy 422, Standards for Grading Projects to Minimize Impacts. Such grading plans shall be in substantial conformance with the grading concept shown on the approved tentative map and consistent with the requirements of the Comprehensive Development Plan and that all graded slopes throughout the project are blended into the natural terrain. Following City approval of the mass grading plans, and prior to approval of each final map, the applicant shall submit to the City Engineer and Building Official for their review, and shall obtain approval for, final grading plans prepared by a Registered Civil Engineer consistent with the approved mass grading plan. These plans shall demonstrate that all existing overhead power poles within the project property and along its frontage with Rancho Viejo Road will be undergrounded. The plans shall also show, at minimum, the limits of grading, the removal of all overhead utility poles, vacation of corresponding easements and the exact location of proposed underground utilities as approved by the utility agency. Additionally, the plans shall also show the drainage improvement, the private retention/detention basin, sewer, water, trails, parkways, streets and all appurtenant improvements. The extent of the topography shall be extended sufficiently beyond the tract's boundaries to determine the geological and drainage impacts to adjacent properties. A minimum of two feet, measured horizontally shall be maintained between the toe of slopes and the back of sidewalk. The elevations shall correspond with the Orange County benchmark datum. All drainage must be properly conveyed to City approved drainage facilities in accordance with the requirements of the California Regional Water Quality Control Board, San Diego Region. Runoff from Lot "H" shall be intercepted and conveyed onto a drainage system to minimize impact on down- stream adjoining properties. All grading plans shall be subject to review by a third - party Geotechnical consultant retained by the City to ensure adequate Geotechnical stability to the satisfaction of the City Engineer. Any exception shall be subject to review and approval by the City Engineer (Ping. & Engr.) 1.8. Drainage Barrier Between Slopes and Streets. Prior to approval of each final map or issuance of any grading permit, whichever occurs first, the grading and street improvement plans shall show that all street sections located within 20 feet or less from the toe of a slope of 10 feet or more in height are protected from underground water seepage by provision of a positive drainage barrier system, at the applicant's cost, in accordance with City Standard Drawing No. 350. Any exception shall be subject to review and approval by the City Engineer. (Engr.) 1.9. Water Quality/National Pollutant Discharge Elimination System (NPDES). Prior to the issuance of any grading or building permits for projects that will result in soil disturbance of five or more acres of land, the applicant shall demonstrate that coverage has been obtained under California's General Permit for Stormwater Discharges Associated with Construction Activity by providing a copy of the Notice of Intent (NOI) submitted to the State Water Resources Control Board and a copy SP of the subsequent notification of the issuance of a Waste Discharge Identification (WDI) Number. Projects subject to this requirement shall prepare and implement a Stormwater Pollution Prevention Plan (SW PPP). A copy of the current SW PPP shall be kept at the project site and be available for City review on request. Prior to issuance of any grading and/or right-of-way improvement permits, the applicant shall submit to the City Engineer and Building Official for their review, and shall obtain approval for, Erosion/Sediment Control Plans and programs, prepared by a Registered Civil Engineer, for the regulation and control of pollutant run-off by using Best Management Practices (BMP's). These plans shall show all temporary and permanent erosion control devices, effective planting of graded slopes, practical accessibility for maintenance purposes and proper precautions and fences to prevent public trespass onto certain areas where impounded water may create a hazardous condition. In order to control pollutant run-off, the applicant shall demonstrate to the satisfaction of the City Engineer and Building Official that all water quality best management practices incorporated into the development of this land subdivision shall be designed in accordance with the NPDES standards, and the requirements of Sections F.1.b(2)(b) and F.1.b(2)(c) ofthe San Diego Regional Water Quality Control Board Order No. R9-2002-0001 and the City's water quality ordinance and Local Implementation Plan. Prior to the issuance of any grading or building permits and/or prior to recordation upon subdivision of land, the applicant shall submit to the City for review and approval a Water Quality Management Plan (WQMP) that: • Addresses Site Design BMP's such as minimizing impervious areas, maximizing permeability, minimizing directly connected impervious areas, creating reduced or "zero discharge areas, and conserving natural areas • Incorporates the applicable Routine Source Control BMPs as defined in the DAMP • Incorporates Treatment Control BMPs as defined in the DAMP • —Generally describes the long-term operation and maintenance requirements for the Treatment Control BMPs, • Identifies the entity that will be responsible for long-term operation and maintenance of the Treatment Control BMPS, and • Describes the mechanism for funding the long-term operation and maintenance of the Treatment Control BMPs. Prior to grading or building permit close-out and/or the issuance of a certificate of use or a certificate of occupancy, the applicant shall: 0 3P • Demonstrate that all structural best management practices (BMPs) described in the projects WQMP have been constructed and installed in conformance with approved plans and specifications, • Demonstrate that applicant is prepared to implement all non-structural BMPs described in the projects WQMP, • Demonstrate that an adequate number of copies of the projects approved WQMP are available onsite, • Submit for review and approval by the City an Operations and Maintenance (•&M) Plan for all structural BMPs. Any deviation from above requirements shall be subject to City Engineer review and approval. (Engr.) 1.10. Erosion Landscape & Irrigation Plans. Prior to approval of each final map or issuance of any grading permit, whichever occurs first, the applicant shall submit to the City Engineer for review, and shall obtain approval for, landscape and irrigation plans prepared by a Landscape Architect. Said plans shall specify that all plants be drought tolerant and have low fertilizer requirements. The plans shall also specify that all irrigation be controlled to minimize runoff.(Engr.) 1.11. Drainage Improvement Plans. Prior to approval of each final map or issuance of any grading permit, whichever occurs first, the applicant shall submit to the City Engineer for review, and shall obtain approval for, Drainage Improvement Plans specific to the project, which reflect consistency with the City's Drainage Master Plan. These plans shall show locations of all existing and proposed facilities. Detention/retention basins shall be designed to accommodate the 100 -year storm flow with an engineered secondary overflow devices. A secondary overflow shall be also provided for storm drain systems designed with sump conditions to preclude flooding of adjoining private an public properties. All proposed street catch basins shall be lined with curb inlet filters or equal devices which meet the National Pollutant Discharge Elimination System (NPDES) requirements and the City Engineer. Storm drain junction structures and catch basins shall be provided with access manholes as deemed necessary by the City Engineer. All drainage must be properly conveyed to a City approved drainage facility. If an existing downstream drainage facility is inadequate, or in the opinion of the City Engineer, is unsafe to properly carry the existing discharge and the anticipated discharge generated by this project, the applicant shall then, at applicant cost, design and implement alternative methods of improvement to properly convey such cumulative discharge, free of debris, in a manner acceptable to the City Engineer. Any deviation from such requirements shall be subject to City Engineer review and approval. Every proposed drainage system shall be placed within its proper easement and appropriately dedicated. (Engr.) -10- WM 1.12 Public Facility Easement in Lettered Lot Maintained by HOA. Prior to approval of each final map, the applicant shall demonstrate to the satisfaction of the City Engineer that public facilities, such as drainage, sewer and water, are designed to be located within the right-of-way. Any deviation shall require prior authorization from the City Engineer. If facilities are proposed in easements, said easements shall be placed in lettered lots and their surfaces shall be maintained by the Homeowner's Association. Any exception shall be subject to review and approval by the City Engineer. (Engr.) 1.13 Connection to Public Drains must be Documented and Filed. Prior to approval of each final map, the applicant shall demonstrate to the satisfaction of the City Engineer that any proposed connections to existing public drainage system, from on-site drains, must be approved by the City Engineer. (Engr.) 1.14 Dry Utilities (Electric. Telephone. Cable TV, Gas) Prior to approval of each final map, the applicant shall submit to the City Engineer for review, and shall obtain approval for, Electrical, Gas, Telephone and Cable Television installation plans to ensure compatibility with existing and proposed improvefents. All utility facilities shall be underground. Vaults, transformers, juncture boxes, or any similar devices shall not be permitted above ground. Any proposal for above -ground utilities shall be subject to City Engineer review and approval. (Engr.) 1.15 Sewer and Water Plans. Prior to approval of each final map, the applicant shall submit to the City Engineer for review, and shall obtain approval for, sewer and water plans prepared by a Registered Civil Engineer. These plans shall be specific to the project and shall reflect consistency with the City's Sewer and Water Master Plans, City standards, specifications and codes, and the Capistrano Valley Water District. The sewer plans shall indicate that all proposed sewer manholes shall be lined with polyurethane, or equal approved material, at the applicant's cost to the satisfaction of the City Engineer(Engr.) 1.16 Street Improvement Plans. Prior to approval of each final map, the applicant shall submit to the City Engineer for review, and shall obtain approval for, street improvement plans prepared by a Registered Civil Engineer. These plans shall show -all existing and proposed improvements including, but not limited to, traffic calming devices, side walk, curb & gutter, handicapped ramp, striping, signage, signalization, storm drain, subdrain barrier interceptor, sewer, water and all related appurtenances. Any encroachment into adjacent properties shall require applicant to provide, in writing, all necessary recorded easement documentation and authorization. The street improvement plans shall conform to the City Standards and to the following requirements. a. Street Widths Measurement. Street widths with standard curb & gutter are measured form curb face to curb face. Street widths with rolled curb are measured form flow line to flow line. -11- ER b. Catch Basins and Gutters. For street sections with grades less than or equal to five percent, the maximum distance between catch basins shall not exceed one 1000 feet. For streets sections with grades greater than five percent, the maximum distance between catch basins shall not exceed 750 feet. Catch basins shall be located so that there is no driveway within 20 feet upstream of the catch basin and such that the catch basin will function as intended. Cross gutters shall not be allowed at street intersections if a storm drain is within 300 feet. C. Sidewalks. Sidewalks shall be constructed on both sides of the main spine street but shall not be required along any residential cul-de-sac. Along cul- de-sac streets, the project shall design and install a grassy swale, in compliance with NPDES clean water requirements. d. No Obstructions in Sidewalks. In compliance with the American with Disabilities Act (ADA) requirements, there shall be no obstruction in any sidewalk or parkway which reduces the width to less than four feet. e. Potential Gated Entries. Streets that may serve as potential gated entries shall be designed in accordance with Municipal Codes 8-13.101 et seq. to accommodate such improvements in conformance with City standards. There shall be a minimum of two lanes at the call box, entering into the project, with a minimum width of 14 feet each. There shall be a minimum of two lanes at the call box, exiting the project, a combined left -turn and through lane, and a right -turn lane. The turn -around radius shall be a minimum 30 feet. A minimum of 100 feet shall be provided between the projection of the cross -street curb face and the proposed call box. Street Lights. Street lights shall be provided, with Mission Bell fixtures on marbelite poles. g. Decorative pavement Noise. The applicant shall use decorative pavers which shall be "non -raised" so as to prevent pavement noise impacts and control vehicular tire noise. Pavement treatment shall be subject to the review and -approval of the City Engineer. h. Ganado Road Connection to Street "F. The subject street connection shall be designed, constructed, and maintained so as to provide emergency access only between the proposed project and the Ganado-Galano neighborhood. Rancho Vieio Road Improvement and Widening. the applicant shall submit to the City Engineer for review, and shall obtain approval for, separate street improvement plans for Rancho Viejo Road, prepared by a Registered Civil Engineer. These plans shall show all existing and proposed right-of-way, -12- SP street improvements and widening to a secondary arterial standard including but not limited to the provision of a north -bound right turn deceleration lane and a south -bound left turn lane, concrete side walk, bicycle path, curb & gutter, handicapped ramp, equestrian trail, striping, signage, signalization, storm drain, subdrain barrier interceptor, sewer, water and all related appurtenances. The street improvement plans shall conform to the City Standards and requirements. Any exception or deviation from the above requirements shall be subject to review and approval by the City Engineer (Engr.) 1.17 Traffic Improvement Plans. Prior to approval of the first final map, the applicant shall submit to the City Engineer, for review, and shall obtain approval of, traffic improvement plans prepared by a Registered Traffic Engineer. These plans shall show the striping, signage, signalization and all related appurtenances. Accompanying Traffic Control Plans shall be required prior to commencement of any street improvement work. Any exception ordeviation to the above requirements shall be subject to review and approval by the City Engin€er. (Engr.) 1.18 Tentative Map Compliance and Closure Calculations. Prior to approval of each final map, the applicant shall submit to the City Engineer for review, and shall obtain approval of, a final map in substantial compliance with the approved tentative map. Said map shall be accompanied with traverse closure calculations, a plotted American Land Title Association (ALTA) survey and an updated Title Search Report. Any exception or deviation to the above requirements shall be subject to review and approval by the City Engineer. (Engr.) 1.19 Homeowners Association -Maintained Improvements. Prior to approval of each final map, the applicant shall indicate on the final map that all improvements, including but not limited to, streets, drainage, street lights, street signage, striping improvements, lettered lots, graded slopes, landscaping, and irrigation facilities within the interior of this subdivision, designated as private, shall be maintained by the master association and/or sub -association or shall make other provisions for maintenance to be approved by the City. (Engr.) 1.20 Dedications and Maintenance Responsibility. Prior to approval of each final map, the applicant shall indicate on the final map, to the satisfaction of the City Engineer, all appropriate dedication and access rights, stating their purposes and their maintenance responsibilities. (Engr.) 1.21 Public Land Dedications. The applicant shall dedicate, at no cost to the City, and indicate on the Final Map, the ultimate right-of-way for Rancho Viejo Road in accordance with the Master Plan of Arterial Highways which shall also accommodate a thirteen foot (13'-0") wide deceleration lane designed to City Standards and per City -approved plans (Engr.). -13- EP 1.22 Access Release. Prior to first final map approval, the applicant shall release and relinquish to the City, on the Final Map, all vehicular access rights to Rancho Viejo Road except at street intersections and City approved driveway locations. (Engr.). 1.23 Trail and Bikeway Dedications. Prior to approval of the applicable final map(s), the applicant shall dedicate the required trail and bikeway easements on the final map or maps. Any deviation to the trail requirements shall be subject to review and approval by the City Engineer. The applicant shall construct all bikeway and trail improvements, at no cost to the City, in accordance with the applicable City Standards and the Equestrian/Hiking Trail Design Manual or to the satisfaction of the City Engineer. Trails are to be fenced and motorcycle barriers provided wherever vehicular access is possible. Sureties shall be provided for 100% of the construction cost of the trails and bikeway. Trail and bikeway grades shall not exceed 8% except at street crossings where they shall not exceed 5%. Prior to approval of the first final map, the developer shall provide evidence of SDG&E approval of the proposed trail and private street improvement plans located within the existing SDG&E easement, and any corresponding public trail easements to be conveyed to the City. Belford-Marbella General Plan Trail: Prior to approval of the applicable final map(s), the applicant shall submit improvement plans for the proposed Belford-Marbella Trail. Said trail, within Lots N, G and J of Tentative Tract 16221, shall be graded to connect to the existing trails within Lots 55 and 56 of Tract 9382 and Lot D of Tract 12954. Said trail shall be improved to a 20' width, except within cross -slope areas exceeding 15% wherein the trail shall be designed to a 10' width. However, all General Plan trail easements shall be 20' wide and dedicated on the applicable final map to the City. Prior to grading plan or final map approval, the proposed alignment within Lot J, shall be staked in the field and reviewed and approved by the City Engineer. The type of paving at street crossings shall be reviewed and approved by the City Engineer. Prior to approval of the applicable final map(s), the applicant shall provide surety for construction of the Belford-Marbella Trail. Said trail shall be graded during the mass grading of the site. Within -two years of issuance of the first building permit or prior to issuance of the final occupancy permit for Lots 76-87, whichever occurs first, the applicant shall complete construction of the entire "Belford-Marbella" Trail improvements. If deemed necessary by the City Engineer, improvements at the two street crossings may be postponed until the street improvements are installed. Woods Lane Feeder Trail: Priorto applicable final map approval, the applicant shall submit improvement plans for the Woods Lane Feeder Trail, connecting the Woods Lane neighborhood to the Marbella-Belford General Plan Trail. The trail shall extend from Lot M, though Lot J of Tentative Tract Map 16221, connecting to the -14- Marbella-Belford General Plan Trail. The feeder trail shall be 10' in width, within a 10' wide easement, dedicated on the Final Map to the City. Rancho Viejo Road Feeder Trail: Prior to applicable final map approval, the applicant shall submit improvement plans for the Rancho Viejo Road Feeder Trail, within Lots A and M of Tentative Tract 16221, extending from Ganado Road, north to the Woods Lane Feeder Trail. The feeder trail shall be incorporated within the 13'-0" multi-purpose trail easement. Ortega Neighborhood Feeder Trail: Prior to applicable final map approval, the applicant shall submit improvement plans forthe Ortega Neighborhood Feeder Trail located between Lots 54 and 55 and within Lots 67 and N of Tentative Tract 16221. The feeder trail shall connect Street G to the Marbella-Belford General Plan Feeder Trail. The feeder trail shall be 10' in width within a 10' easement dedicated on the applicable final map to the City. The following maintenance provisions shall be included within the CC&R's for Tentative Tract Map 16221 and shall apply to all GenerAl Plan trails and feeder trails: a. Provision for maintenance of the Belford-Marbella General Plan Trail and all Feeder Trails within the tract (or tracts) by all Homeowner's Associations within Tentative Tract 16221. Provision requiring City approval of any amendment to the CC&R's that will, in any manner, affect the integrity of the General Plan or Feeder Trail design standards or level of maintenance. C. Provision requiring that all trail maintenance conform to the maintenance standards per the City's adopted Equestrian/Hiking Trail Design Manual. Provision within the CC&R's that gives the City the right to assume maintenance of the equestrian/hiking trails if the City determines that the Homeowner's Association has not maintained the trails at the minimum —standard, as defined bythe Equestrian/Hiking Design Manual. Furthermore, if the City assumes maintenance of the trail system, all costs, including administration, shall become a lien on each property or residential lot within the subdivision. Rancho Viejo Bikeway: The applicant shall dedicate realigned easements at street intersections on the applicable final map. Realignment of the Bikeway and replacement of the existing asphalt bikeway with concrete shall be shown on the Street Improvement plans. Striping and signage for the bikeway shall be included on the Striping Improvement Plan. -15- �r 1.24 CC & R's. Prior to approval of each final map, the applicant shall submit 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: Creation of a Homeowner Association(HOA) and/or a Sub -Association for the purpose of providing for control over the uniformity of boundary fencing, and the perpetual maintenance responsibility of areas including, but not limited to, all common areas, open space, project entries, the equestrian trail along Rancho Viejo frontage, slopes, fuel modification zones, private medians and greenbelts, irrigation systems, landscaped areas, detention basins, walls, driveways, parking areas, structures, private streets, street lights, drainage facilities, and all other areas to be owned and maintained by the HOA and/or Sub -association. All improvements, including but not limited to, streets, drainage, street lights, street signage, striping improvements, parks, graded slopes, landscaping, and irrigation fa%ilities within the interior of the subdivision designated as private shall remain private and shall be maintained by the HOA and/or Sub -association, or shall make other provision'for maintenance, as approved by the City Council. (Engr.) b. The establishment of setback and height requirements for additions and accessory structures conforming to the development standards of the Comprehensive Development Plan for the project and the San Juan Capistrano Land Use Code. (Ping.) C. A statement indicating that open space (as provided in the lettered lots on the tentative map) shall be retained as indicated on the final map by the Homeowners Association, or other entity approved by the City, as designated open space with no structures allowed in perpetuity and maintained by a Homeowner Association and/or the Sub -association or other entity approved by the City, and that no development or encroachment shall be permitted within the designated open space, except as permitted for the Open Space district in the project's Comprehensive Development Plan. (Ping.) d. A statement indicating that proposed amendments to any of the CC&R's shall be submitted for review to the Planning Director and that, if the Director determines that the amendment affects any project conditions of approval or other City regulations or requirements, the amendment will then require City Council approval prior to the amendment becoming valid. (Ping.) Fire prevention and defense provisions including: 1) a fire lane map, if required by the Fire Chief; 2) provisions which prohibit parking in fire lanes and a method of enforcement; 3) provisions for maintenance of fuel modification zones including the removal of all dead and dying vegetation -16- SP and the inspection and correction of any deficiencies in the irrigation system three times a year; 4) a method for keeping fire protection access easements unobstructed; and 5) a requirement for approval of the Fire Chief for modifications such as installation of speed humps or bumps, control gate changes, or parking changes. (Fire) f. Criteria for maintenance of and prohibition of building construction or ornamental landscaping within private drainage facility easements, slopes and fuel modification zones within the project by the HOA (Engr.) g. A Surficial Soil Remediation Program consistent with the Title 9, Chapter 10 of the Municipal Code. (Engr.) Provisions for maintenance by the homeowners association of all private drainage facilities, including retention/detention basins, that are made a part of the National Pollutant Discharge Elimination System (NPDES) permit issued by the City, and for inspection of open channels and catch basins annually. In addition, a provision shall be includtd which establishes a separate fund for the sole purpose of maintaining such facilities. (Engr.) A provision that gives the City the right to assume maintenance of any NPDES facilities, if the City determines that the homeowners association has not maintained said facilities in accordance with the permit requirements, and that, in such event, the homeowners association shall be financially responsible to pay City for the costs the City incurs in such maintenance role. (Engr.) j. A provision that requires City approval of any amendment to the CC&R's that will, in any manner, affect the maintenance, function, or integrity of NPDES facilities. (Engr.) k. A statement indicating that by October first of every year, annual fiscal year reports will be furnished to the City in compliance with the reporting requirements of codes and ordinances adopted by the City with respect to -the NPDES program. (Engr.) 1.25 Construction Cost Estimates. Prior to approval of each final map, the applicant shall submit to the City Engineer for review, and shall obtain approval for, an estimate of quantities and construction costs prepared by a Registered Civil Engineer of all proposed improvements associated with this development. Said estimates shall include, but not be limited to, the costs for construction of all street improvements, signing and striping, traffic signals, street lights, on-site and off-site storm drains, water and sewers, landscape, irrigation systems, recreational trails, and the setting of survey monuments and centerline ties. Any exception to or deviation from this condition shall be subject to review and approval by the City Engineer. (Engr.) �P 1.26 Bonding and Securities. Prior to approval of each final map, the applicant shall execute a Subdivision Improvement Agreement with the City and shall provide performance bonds/securities for 100 percent of each estimated improvement cost, as prepared by a Registered Civil Engineer and approved by the City Engineer and City Attorney for improvements including, but not limited to, street improvements, signing, signalization, striping and street lights; storm drains, sewer, recreational trails, landscaping and irrigation in rights-of-way, private slopes, and open space. In addition, the applicant shall provide labor and materials bonds/securities for 100 percent of the above estimated improvement costs, as determined by the City Engineer. (Engr.) 1.27 Soils Subsidence Remediation Program. Prior to approval of the first final map, the applicant shall comply with the provisions of Title 9, Chapter 10, Soils Subsidence Remediation Program to the satisfaction of the City Engineer. Said program shall include the formation of a Geological Hazard Abatement District, for any catastrophic soil displacement. The program shall also include the incorporation into the Conditions, Covenants and Restrictions (CC&R'V of the Master Home Owners Association or sub -associations, the remediation to surficial soil displacement, as required by separate condition, herein. (Engr.) 1.28 Submission of Digital Map. Prior to recordation of the Final Map, the applicant shall submit for review, and shall obtain approval from the Orange County surveyor, of a digitized map pursuant to Orange County Ordinance 3809 of January 28, 1991. The applicant shall pay for all cost of said digital submittal, including supplying digital copies to the City, of the final County Surveyor approved digital map in DXF format. In addition, the applicant shall provide the City with digitized copies of all improvement (as -built) plans. (Engr.) THE FOLLOWING CONDITIONS SHALL BE SATISFIED PRIOR TO ISSUANCE OF THE GRADING AND/OR RIGHT-OF-WAY IMPROVEMENT PERMITS: 2.1 Permits Required. Prior to the commencement of anykind of grading orconstruction activity, a permit shall be required. All improvement work, whether performed on-site or off-site, shall require a permit to ensure the integrity and safety of all existing and propoged improvements affected by the permit's construction activities. (Engr.) 2.2 Mylar of Final Map. Prior to issuance of grading and right-of-way improvement permits subsequent to final map recordation, the applicant shall submit to the City Engineer a reproducible copy/mylar of the project's recorded final map. The applicant shall also submit for review, and shall obtain approval of, the Orange County surveyor of a digital Map pursuant to Orange County Ordinance 3809 of January 28, 1991. the applicant shall pay for all costs of said digital submittal, including supplying digital copies to the City of the final County Surveyor -approved digital map in DXF format. All Digital Submissions shall conform to the latest edition of the City of San Juan Capistrano Digital Submission Standards. (Engr.) so SP 2.3 Source Reduction and Recycling Act of 1989 (CIWMB) Prior to the issuance of grading permits, the applicant shall submit a written waste management plan, in a form acceptable to the City, and show on the grading/site plans, the location of receptacle(s) to accumulate on-site generated solid waste for recycling purposes. The project shall provide adequate space to accommodate on-site source separation of solid waste during both pre and post -construction activity. Prior to issuance of any building permits, the building permit site plans shall depict the areas for recycling space allocation consistent with Section 9-3.537 of Title 9, Land Use Code. Prior to issuance of any Certificate of Occupancy the applicant shall submit solid waste generation, disposal, and recycling records for constriction -generated waste. (Engr./C.M.) 2.4 Grading Access and Haul Route Plan. Prior to issuance of mass grading and right- of-way improvement permits, the applicant shall submit to the City Engineer for review, and shall obtain approval of: 4 (Engr.) a. An on-site plan showing location of the access point, for the earth moving and grading equipments and for workers' vehicles entering and exiting the site. b. An off-site haul route plan for soil importation/exportation circulation and for heavy construction related deliveries. The haul route plan shall specify the dates and times and headways for hauling activities in compliance with all applicable City standards. The City Engineer may require a security deposit in conjunction with approval of the haul route plan. 2.5 Mitigation of Drainage and Grading Problems. Prior to issuance of grading and right-of-way improvement permits, the applicant shall adhere to the following conditions during the entire grading and construction operation (Engr.): a. If any drainage problem is anticipated or occurs during construction, the —applicant shall provide and implement a solution acceptable to the City Engineer, at no cost to the City, and shall submit a recorded instrument to insure the durability of the solution b. Any grading work beyond the limits of grading shown on the approved grading plans shall require a written approval from the City Engineering and Building Director and shall be subject to a supplemental Geotechnical Soils Report and additional fees. 2.6 Construction Phasing and Mitigation Program. Prior to issuance of grading and right-of-way improvement permits, the applicant shall pay a cash deposit for erosion -19- iP control and clean up purposes in an amount to be determined by the Building Official, and shall prepare and adhere to a Construction Phasing and Mitigation Program, approved bythe Planning Directorand Building Official containing, butnot limited to, the following controls: (Engr. & Ping.) a. Grading Activity: Haul route for the movement of on and off-site of heavy earth -moving equipment. 2. Location of assembly and storage/service areas for heavy earth- moving equipment and limits of hours of operation. 3. Control of worker access to site, including hours of work, limits on noise sources, and dust and soil import/export. 4. Compliance with environmental mitigation measures, including stockpiles and dust impacts. 5. Compliance with the City policyon grading impacts, including "Impact Analysis" and a landscape schedule to insure early implementation of planting along existing residential frontages 6. A schedule and the method of performing the grading, stockpiling and construction of all improvements in each phase. b. Enforcement: The Planning Director and Engineering and Building Director may modify the Construction Phasing and Mitigation program standards if on-site observations indicate that construction activities are creating a nuisance to adjacent property. 2. The applicant shall hire a project enforcement person approved by the Engineering and Building Director to ensure compliance with the Construction Phasing and Mitigation Program. 3. If the City determines that the applicant is in violation of the approved construction Phasing and mitigation program, the Planning Director and/or the Engineering and Building Director are authorized to shut down the project by reason of said violation. THE FOLLOWING CONDITION SHALL BE SATISFIED PRIOR TO ISSUANCE OF BUILDING PERMITS: -20- SP 3.1 Payment of Fees . Prior to the issuance of Building Permits (other than model homes), the applicant shall fulfill all applicable engineering fee requirements, including but not limited to the Capistrano Circulation Fee Program, Sewer Capacity Fees, Agricultural Preservation Fees in accordance with the City Municipal Codes and Policies as last revised. (Engr.) 3.2 Fair -Share Circulation Improvement Participation for Rancho Vieio Road -Ortega Highway. In accordance with the executed Subdivision Improvement Agreement, and prior to issuance of the first (15) building permit, other than model homes, the applicant shall pay for the project's pro -rata share of traffic generated, as determined in the City -approved traffic study, for the following improvement. This financial participation shall be in addition to paying Capistrano Circulation Fee Program (CCFP) fees. The applicant's financial participation shall include right-of- way acquisition, design, and construction including, but not limited to, grading, streets, sidewalks, landscaping, retaining walls, drainage structures, utility relocation, and traffic signal improvements in accordance with the City's Master Plan of Streets and Highways. This condition is necessary because the Environmental Impact Report (EIR) traffic impact analysis identified this improvement as a cumulative impact mitigation measure but the improvement has not been anticipated by or included in the Capistrano Circulation Fee Program (CCFP) program. (Engr.). Location: Rancho Viejo Road @ Ortega Highway: Financial Participation: towards the construction of a second northbound left -turn lane on Rancho Viejo Road. 3.3 Off -Site Circulation Improvement Construction Requirements (subject to partial financial reimbursement). In accordance with a schedule established by the executed Subdivision Improvement Agreement, and priorto issuance of the building permit indicated in the table below, for other than model homes, the applicant shall design and construct and be initially responsible for all the cost of the off-site improvements listed below to their ultimate standard configurations in accordance with the City's Master Plan of Streets and Highways and to the satisfaction the City Engineer. All easements, right-of-way acquisitions, dedications and permits needed from any agency to accommodate said improvements listed below shall be obtained by the applicant, with City's assistance, at no initial cost to the City. Upon a written request from the applicant, the City will enter into a Partial Financial Compensation Agreement to partially repay the applicant from the Capistrano Circulation Fee Program (CCFP) over a period of time after the completion of the last improvement of the items listed below in accordance with the CCFP's Methodology & Developer Financial Compensation Policy, as implemented and last revised. The applicant shall provide performance bonds/securities for 100 percent of each estimated improvement cost as prepared by a Registered Civil Engineer and approved by the City Engineer and City Attorney. In addition, the applicant shall provide labor and materials bonds/securities for 100 percent of the above estimated improvement -21- �P costs as determined by the City Engineer. Any deferral in the timing of this condition, due to unforseen delays caused by outside regulatory agencies, shall be subject to review and approval by the City Engineer. (Engr.) Location Improvement Timing of Improvements a. Ortega Construct an eastbound The applicant shall apply for Highway @ 1-5 right -turn lane on Ortega Caltrans encroachment permit Southbound Highway for traffic within thirty (30) days following Ramps movement from Ortega approval of any final map. Highway eastbound to 1-5 southbound. Complete construction of improvements prior to issuance of the seventy-sixth (76") building permit. b I - 5 Construct an additional The applicant shall apply for Northbound Off- northbound lane on the 1-5 Caltrans encroachment permit Ramp @ Ortega Off -Ramp and restripe to within thirty (30) days following Highway: provide two right turn approval of the project's final lanes. map. Complete construction of improvements prior to issuance of the seventy-sixth (761") building permit. c. Ortega Construct an eastbound Begin construction of Highway @ Del right -turn lane on Ortega improvements prior to the Obispo Street: Highway for traffic issuance of the first (1s`) building movements from Ortega permit. Complete construction of eastbound to Del Obispo improvements prior to issuance southbound. of the thirty-eighth (38t') building permit. THE FOLLOWING CONDITIONS SHALL BE SATISFIED PRIOR TO ISSUANCE OF CERTIFICATES OF OCCUPANCY 4.1 Filing of Property Corner Survey Records. Prior to issuance of a certificate of occupancy for the first home within the project (other than model homes), the applicant's surveyor shall file the appropriate property comer survey records with the County Surveyor and show written confirmation indicating compliance with the County Recorder, as required by Section 8771 of the Business and Professions Code. Any deviation from this condition shall be subject to approval by the City Engineer. (Engr.) -22- SP 4.2 Completion of all Improvements to the City's Satisfaction. Prior to issuance of a certificate of occupancy (C of •) for the first home within each construction phase of the project (other than model homes), the applicant shall complete, to the satisfaction of the City Engineer, all facility improvements required of this development to serve each construction phase, including the undergrounding of overhead utility in accordance with City -approved improvement plans. All construction shall be completed in accordance with the City approved Construction Phasing and Mitigation Program. Any deferral in the timing of this condition shall be subject to review and approval of the City Engineer. (Engr.) Prior to final map approval, the applicant shall provide a cash bond for the cost of resurfacing the entire Rancho Viejo Road street section along the full frontage of Tract 16221. Following completion of all project construction, the City Engineer shall inspect the pavement condition of Rancho Viejo Road. If the City Engineer determines that the road requires resurfacing, the applicant shall resurface the entire Rancho Viejo Road street section fronting Tract 16221. (Engr.) THE FOLLOWING CONDITIONS SHALL BE SATISFIED PRIOR TO ACCEPTANCE OF IMPROVEMENTS AND RELEASE OF PERFORMANCE SECURITIES 5.1 Provide As -Built Mylars. Prior to acceptance of the works of improvements and release of performance securities, the applicant shall submit to the City Engineer for review, and shall obtain approval of, the reproducible "as -built" mylar plans of all on-site and off-site improvement works completed and accepted. Said plans shall be prepared by a Registered Civil Engineer. Also, the applicant shall submit digital copies of all as -built plans that call out any deviations from the City approved plans, including all domestic water system, non-domestic water system, and the landscape irrigation system in accordance with the latest edition of the "City of San Juan Capistrano Digital Submission Standards" (Engr.) 5.2 Videotape of Sewers and Storm Drain Pipes. Prior to acceptance of improvements and release of performance securities, the applicant shall submit to the City Engineer for review, and shall obtain approval for, a video tape, filmed in the presence of a City Staff representative/inspector, of all sewer and drainage improvements. The videotape shall become the property of the City. (Engr.) 5.3 Monumentation and Corner Records. Prior to acceptance of improvements and release of performance securities, the applicant's surveyor shall set all required monumentation and re-establish any damaged or destroyed monumentation during construction. Monumentation, street centerline ties and appropriate corner records shall be submitted to the City Engineer and filed with the County Surveyor in compliance with AB 1414 and Sec. 8771 of the Business and Professions Code. (Engr.) -23- >P THE FOLLOWING CONDITIONS SHALL BE ONGOING UNTIL SATISFIED: 6.0 Legal Defense. The applicant, its agents, and assignees shall defend, indemnify and hold harmless the City of San Juan Capistrano, its elected and appointed officials and employees, and its contract consultants, from any claim, action or proceeding to attack, set aside, void, or annul any land use approval associated with this project, including but not limited to environmental impact report requirements under CEQA, rezoning approvals, subdivision map approvals, orother applicable City Municipal Code Title 9 land use approvals. Upon notice provided by City to the applicant, its agents, or assignees, of service of process of such claims or actions, the project proponent, its agents, and assignees, shall immediately act to provide an appropriate defense to such claims or actions. (Ping. & Engr.) Public Works (water facility conditions of approval PRIOR TO FINAL MAP APPROVAL BY CITY COUNCIL: 1.1 The applicant shall pay all applicable Domestic and Non -Domestic (Recycled) Water Development Charges, as last revised, and post the required securities in compliance to Capistrano Valley Water District (CVWD) standard specifications. 1.2 The applicant shall be responsible to dedicate all water rights, public water facilities, and any required water easements to CVWD at no cost to CVWD, in accordance CVWD standard specifications. These water rights, public water facilities, and water easements shall be dedicated to CVWD on the Final Map. 1.3 The applicant shall be responsible to dedicate Lot 125 to CVWD at no cost to CVWD, for a proposed water Booster Pump Station and a water Pressure Reducing Station and/or other water related facilities. The minimum pad area shall be a least 50' wide x 65' deep. 1.4 The applicant shall be responsible to dedicate a water 50 -foot wide easement to CVWD, at no cost to CVWD, from Rancho Viejo Road through the open space lot to Lot 125 and from said lot to proposed Street B and Lot M. 1.5 The applicant shall be responsible to dedicate a water easement to CVWD, at no cost to CVWD, through Lot M. 1.6 The applicant shall be responsible to obtain a minimum of 20 -foot wide water easements from the affected property owners for a high pressure water main from Golf Club Drive to the subject tract. The alignment shall be in a paved road, or in undeveloped areas with a slope of less than 1:4 (rise:run), or other condition acceptable to CVWD Engineer. -24- SP 1.7 The applicant shall be responsible to dedicate a water easement to CVWD, at no cost to CVWD, from Street H to Street J. 1.8 The applicant shall be responsible to dedicate a water easement to CVWD, at no cost to CVWD, from Street F and through Lot F to existing Ganado Road. 1.9 The applicant shall dedicate Lot 125 (booster pump station) to the City/CVWD free and clear of any encumbrances and Lot 125 shall be exempt of conditions of the HOA CCR's. PRIOR TO ISSUANCE OF GRADING AND RIGHT-OF-WAY IMPROVEMENT PERMITS: 2.1 The applicant shall be responsible to obtain, from the Orange County Fire Authority the required fire flow demands and fire protection requirements to service said Tentative Tract Map (TTM) 16221. 2.2 The applicant shall be responsible for the design and permitting of domestic and non-domestic (recycled) water systems in accordance with CVWD standard specifications, and professionally -accepted engineering principles and practices. 2.3 The applicant shall be responsible to provide two sources of water supply for all of the proposed TTM 16221 water pressure zones. The proposed water system shall integrate with the surrounding water systems. 2.4 The applicant shall be responsible for the design of water improvements necessary to provide for domestic water facilities adequate to provide the required fire protection water facilities and domestic water demands. The applicant shall submit a hydraulic analysis which supports said water demands. 2.5 During grading operations the applicant shall be responsible to construct any necessary water main caps or plugs with thrust blocks and temporary water mains in compliance with CVWD standard Specifications that would be necessaryto avoid a disruption of water service to existing customers related to the proper removal and legal disposal of any conflicting water main pipelines. 2.6 The applicant shall submit to the City Engineer and CVWD Engineer, for review and obtain approval for the Sewer and Water Plans prepared by a Registered Civil Engineer. These plans shall include, but not limited to the requirements related to water improvements. 2.7 The applicant shall enter into an improvement and reimbursement agreement for the reconstruction of surrounding offsite water facilities related to the improvements for TTM 16221. -25- 3P GENERAL WATER DISTRICT ISSUES 3-1. The water main pipelines for both domestic and non-domestic (recycled) water facilities within the tract's improvements shall have a minimum diameter of 8 -inch for looped systems and 12 -inch diameter for single source water systems, unless otherwise determined by the CVWD Engineer. 3-2. All water main pipelines, through open space areas, shall be fully welded steel water mains that are cement mortar lined & coated (CML&C) with a suitable cathodic protection corrosion resistant water system as approved by the CVWD Engineer. 3-3. The applicant shall responsible to design the following domestic water main connections and pipelines, unless otherwise determined by the CVWD Engineer: a) The applicant shall be responsible for the design of water improvements to serve the domestic water facilities that are adequatelto provide the required fire protection water facilities and domestic water demands. The applicant shall submit a hydraulic analysis which supports the ability to provide said water demands. . b) The applicant shall be responsible to design water improvements and connections to Rancho Viejo Road through Lot M, TTM 16221. c) The applicant shall be responsible to design the water mains, connections, and provide the required water easements from the north end of Ganado Road and along easterly boundary of proposed TTM 16221 with water main connections to the proposed TTM 16221 water system. d) The applicant shall be responsible to design water facilities that will require a connection to the 575 Hydraulic Gradient (HGL) pressure zone at Golf Club Drive and Via Festivo. The applicant shall provide a hydraulic analysis and calculations to validate the suitability of the proposed water system. e) -The applicant shall be responsible to design all required pressure reducing stations (PRS) with the necessary piping and appurtenances required to serve an acceptable range of water pressure. This shall include, but shall not be limited to, the following: i) A PRS between the existing 575 HGL and the proposed 450 HGL to be located at Golf Club Drive and Via Festivo. A PRS between the properties upper and lowerwater pressure zones. -26- SPI iii) A PRS between the proposed TTM 16221 lower water pressure zone and the existing 314 HGL to be located in Lot F, TTM 16221, near the northern terminus of Ganado Road. NOW DOMESTIC (RECYCLED) WATER IMPROVEMENTS 4-1. The applicant shall be responsible to design the following non-domestic (recycled) water main connections and pipelines, unless otherwise determined by the CVWD Engineer: a) The landscape/irrigation improvements shall be in accordance to the municipal code for Water Conservation Landscape, section 9-3.617 and CVWD's "Rules and Regulations For Users of Non -Domestic Water'. b) A 12 -inch non-domestic (recycled) water main pipeline to serve the irrigated slopes and landscape areas with individual private booster pumps installed after the certain water meters that are to serve landscape areas above 250' in elevation. c) A suitably sized Reduced Pressure Principal Assembly connection from the proposed domestic water main pipeline to the proposed non-domestic (recycled) water main pipeline. a) Construct a connection to the existing non-domestic (recycled) water main located in Rancho Viejo Road and connect to the proposed non-domestic (recycled) water system to serve TTM 16221. 4-2. For Lot 127, the applicant shall be responsible for designing a 6 -inch sewer lateral with clean out for the future site improvements, unless other wise determined by the CVWD Engineer. PRIOR TO ISSUANCE OF BUILDING PERMITS: 5.1 The applicant shall complete all design, construction, dedication of property and easements, and comply with the terms of any Developer Agreements and detailed in prior sections of the resolution. If a water improvement construction phasing plan is to be implemented, the phasing plan shall be submitted to the City Engineer and CVWD Engineer for approval. PRIOR TO ISSUANCE OF CERTIFICATE OF OCCUPANCY: 6.1 Prior to the acceptance of water improvements and release of performance securities, the applicant shall submit to the City Engineer and CVWD Engineer for review and obtain approval for reproducible "Record Drawing" Mylar Plans that call out any deviations from the signed plans of all the domestic water system, non- -27- 3hP domestic (recycled) water system, the landscape irrigation system, and Lot 127, TTM 16221 improvements. These "Record Drawings" are also required to be provided to the City and CVW D in digital format, in accordance with the "City of San Juan Capistrano Digital Submission Standards". Orange County Fire Authority conditions of approval F-1. Prior to the recordation of a final map, the applicant shall submit to the Fire Chief evidence thatthe location of the nearest fire hydrant is in compliance with applicable requirements. F-2. Prior to the issuance of a building permit, the applicant shall provide evidence of adequate fire flow. The Orange County Fire Authority Water Availability for Fire Protection form shall be signed by the applicable water district and submitted for approval to the Orange County Fire Authority. If sufficient water to meet fire flow requirements is not available, an automatic fire extinguishing system may be required in each structure affected by insufficient fire flow., F-3 Prior to the recordation of a final, a note shall be placed on the map stating that all multifamily residential structures; all single-family structures exceeding 5,500 square feet per amendment; and all structures exceeding fire department access requirements shall be protected by an automatic fire sprinkler system, in a manner meeting the approval of the Fire Chief. F-4 Prior to the issuance of a building permit, the applicant shall submit plans for any required automatic fire sprinkler system in any structure to the OCFA for review and approval. F-5 Prior to the issuance of a certificate of use and occupancy, this system shall be operational in a manner meeting the approval of the Fire Chief. F-6 Prior to the recordation of a final map, the applicant shall obtain approval of the Fire Chief for all fire protection access easements and shall dedicate them to the County. F-7 Prior to the issuance of any grading permits, the applicant shall submit and obtain approval of plans for all roads, streets and courts, public or private, from the Fire Chief in consultation with the City Staff. The plans shall include the plan view, sectional view, and indicate the grade and width of the street or court measured flow line to flow line. All proposed fire apparatus turnarounds shall be approved by the Fire Chief and if needed, clearly marked when a dead-end street exceeds 150 feet or when otherwise required. Applicable CC&R's, or other approved documents, shall contain provisions which prohibit obstructions such as speed bumps/humps, control gates or other modifications within said easement or access road unless prior approval of the Fire Chief is granted. 101 SP F-8 Prior to the issuance of a building permit, the applicant shall submit plans and obtain approval from the Fire Chief for fire lanes on required fire access roads less than 36 feet in width. The plans shall indicate the locations of red curbing and signage. A drawing of the proposed signage with the height, stroke and color of lettering and the contrasting background color shall be submitted to and approved by the Fire Chief. F-9 Prior to the issuance of any certificate of use and occupancy, the fire lanes shall be installed in accordance with the approved fire lane plan. The CC&R's, or other approved documents, shall contain a fire lane map and provisions which prohibit parking in the fire lanes. The method of enforcement shall be documented. F-10 Prior to the issuance of a preliminary grading permit, the applicant shall obtain the approval of the Fire Chief, in consultation with the City Staff, of a conceptual fuel modification plan and program. F-11 Prior to the issuance of any precise grading permit, the applicant shall obtain the approval of the Fire Chief, in consultation with the Malhager, Subdivision and Grading Services, of a precise fuel modification plan and program. The plan shall indicate the proposed means of achieving an acceptable level of risk to structures by vegetation. F-12 Prior to the issuance of a building permit, the developer shall have completed, under the supervision of the Fire Chief, that portion of the approved fuel modification plan determined to be necessary by the Fire Chief before the introduction of any combustible materials into the project area. Approval shall be subject to on-site inspection. F-13 Prior to the issuance of any certificate of use and occupancy, the fuel modification shall be installed and completed under the supervision of the Fire Chief. Further, the installed fuel modification plant pallet shall be established to a degree meeting the approval of the Fire Chief. The CC&R's, or other approved documents, shall contain provisions for maintaining the fuel modification zones including the removal of all dead and dying vegetation subject to triennial inspections. F-14 Prior to the issuance of any grading permits, the applicant shall submit and obtain the Fire Chiefs approval for the construction of any gate across required fire authority access roads/drives. Contact the Orange County Fire Authority at (714) 744-0499 for a copy of the "Guidelines for Design and Installation of Emergency Access Gates and Barriers." F-15 Prior to the issuance of a building permit for combustible construction, the builder shall submit a letter on company letterhead stating that water for fire -fighting purposes and the all weather fire protection access roads shall be in place and -29- operational before any combustible material is placed on-site. Approval shall be subject to an on-site inspection prior to the issuance of a building permit. i PASSED, APPROVED AND ADOPTED this 3`d day of une 2003. n / ATTEST: R. MONAHAN, CITY CLERK KI STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF SAN JUAN CAPISTRANO ) I, MARGARET R. MONAHAN, appointed City Clerk of the City of San Juan Capistrano, do hereby certify that the foregoing Resolution No. 03-06-03-01 was duly adopted by the City Council of the City of San Juan Capistrano at a regular meeting thereof, held the 3rtl day of June 2003, by the following vote: AYES: NOES: ABSTAIN COUNCIL MEMBERS: COUNCIL MEMBERS: L MEMBERS: /) kt R. MONAHAN, City Clerk Hart, Swerdlin, and Mayor pro tem Soto Bathgate and Mayor Gelff None -30- M DRAFT AGREEMENT ATTACHED (Approved by City Attorney) Final agreement will be provided in final City Council Report. ATTACHMENT 2 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 AGREEMENT ESTABLISHING SOILS SUBSIDENCE REMEDIATION PROGRAM This Agreement Establishing Soils Subsidence Remediation Program and Reservation of Easements ("Agreement') is entered into as of 2004, by and among WILLIAM LYON HOMES, INC., a Califo oration ("Developer'), RANCHO MADRINA COMMUNITY ASSOCIATION ("Associa the CITY OF SAN JUAN CAPISTRANO ("City'), and pertains to that certain real prop o particularly described on Exhibit "A" attached hereto and incorporated herein by this ref "Property'). RECITALS This Agreement is made with reference to the following facts: A. Developer is in the process of developing Tract No. 16221 as a residential project including open space lots ("Project"), in the City of San Juan Capistrano, County of Orange, State of California. 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 developments in the City include a Soils Subsidence Remediation Program. On August 15, 1995, the Council passed, approved and adopted Ordinance No. 768 ("Amended Ordinance'), amending Title 9 of the San Juan Capistrano Municipal Code to add Chapter 10 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. On June 3, 2003, the Council passed, approved and adopted Resolution No. 03-06-03- 01, approving Tentative Tract Map No. I6221 and certain other matters. The City has required, as part of the conditions of approval for the Project, that Developer establish and the Association operate a Soils Subsidence Remediation Program in compliance with Title 9, Chapter 10 of the San Juan Capistrano Municipal Code. The City has also required the Developer and the Association to enter into this Agreement Establishing Soil Subsidence 31705\SLM294\AGRM'n 536274.2 06/15/04 ATTACHMENT 2 Remediation Program. This Agreement shall set forth the terms for the implementation by Developer of a Soil Subsidence Remediation Program ("Soil Subsidence Remediation Program' with respect to Tract No. 16221. D. The Association is a California nonprofit mutual benefit corporation which will own the common area lots within the Project and will serve as the homeowners' association for the Project. E. In addition, Tract 16221 will be subject to the terms of that certain Declaration of Covenants, Conditions, Restrictions and Reservation of Easements for Rancho Madrina (the "Declaration 1D. F. The parties hereto desire to enter into this Agreement as it relates to the Soils Subsidence Remediation Program only (and not with respect to the "City Home Warranty Program", as defined therein) and as it relates solely to the Project, to, among other things, more clearly set forth the rights and obligations of the parties with respect to the Soils Subsidence Remediation Program. G. By entering into and recording this Agreement, Developer satisfies in full with respect to the Project (i) all conditions of subdivision 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. /Vl AGREEMEN�4&p I 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. 2. Soils Subsidence Remediation Program. 2.1 Soils Subsidence Remediation Program and Term. Developer's subdivision approvals for Tentative Tract No. 16221 require that Developer's Project include a "Soils Subsidence Remediation Program". This Agreement sets forth the above -referenced Soils Subsidence Remediation Program as it relates to Final Tract No. 16221. The term of the Soils Subsidence Remediation Program shall be in perpetuity. 2.2 Developer Repair Period. Developer is responsible for making or causing to be made all repairs to correct any damage to Lots, structures or public/private improvements due to Soils Subsidence at Developer's sole expense commencing on the first close of escrow of a residential lot in the Project and continuing for a three (3) year period following the last close of escrow for all Lots within the Project. In the event Developer fails to perform as provided herein, the City shall have the right to draw upon Developer's security posted under the terms of Section 5.1, below, as provided in Section 5.3, below. If the amount in the Surficial Soils Subsidence Fund is less than the minimum amount as specified in Section 2.4(b) and (c) at the conclusion of the Developer Repair Period, then the Developer shall deposit sufficient funds to meet the minimum requirements. 31705\SLM294\AUFAM 536274.2 06/15/04 2.3 Lona Term Covered Repairs. After the expiration of the Developer Repair Period, if a Soils Subsidence occurs within the Tract, the Association shall make or cause to be made the Covered Repairs necessitated by such Soils Subsidence ("Long Term Covered Repairs") to the extent funds are available out of the Association's Surficial Soils Subsidence Fund. In the event funds available in the Association's Surficial Soils Subsidence Fund is insufficient to cover the cost of all such Covered Repairs, the Association shall levy and collect special assessments against the owners of the residential lots to restore the Surficial Soils Subsidence Fund to the minimum seventy-five percent (75%) level as often as necessary. 2.4 Surficial Soils Subsidence Fund. The Association is required to collect and maintain a restricted fund to correct damage to individual Lots, structures, or public/private improvements due to soils displacement occurrences. This restricted fund is called a Surficial Soils Subsidence Fund. Developer is required to deposit an initial amount determined by the City into the Surficial Soils Subsidence Fund. Regulation and use of the Surficial Soils Subsidence Fund shall be in accordance with the following: (a) Funds deposited in the Surficial Soils Subsidence Fund can only be used for actual costs associated with correcting Soils Subsidence. The initial security for the Surficial Soils Subsidence Fund shall be in such form and manner as to guarantee and secure the performance of the Developer and shall consist of one of the options se in Section 5.2 below. (b) Special Assessments shAV40§4o all Lots within the Project. Said Special Assessments shall commence on the first Close of 17stro& of a Lot in the Project pursuant to the regulations of the California Department of Real Estate. Said Special Assessments shall be collected by the Association until the Surficial Soils Subsidence Fund reaches a predetermined minimum as established by the City. Developer shall be able to withdraw its initial deposit provided the Surficial Soils Subsidence Fund does not fall below seventy-five percent (75%) of the predetermined minimum. If a claim occurs during the period the Developer is responsible, and the Surficial Soils Subsidence Fund drops below the seventy-five percent (75%).level, the Developer shall restore such fund to the minimum seventy-five percent (75%) level. After the end of the Developer Repair Period (and after any deposit required by Developer at that time pursuant to Section 18.8.3 below), the Association shall levy Special Assessments against the Owners to restore the Surficial Soils Subsidence Fund to the minimum seventy-five percent (75%) level as often as necessary. (c) If the amount in the Surficial Soils Subsidence Fund is less than the minimum amount as specified in Section 5.1 at the conclusion of the Developer Repair Period, then the Developer shall deposit sufficient funds to meet the minimum requirements. (d) Developer has reserved an exclusive license for the benefit of the Association to enter onto Common Area and individual Lots to allow the Association to maintain and inspect all landscaping, irrigation and drainage devices, and all other natural and artificial conditions which affect or might affect the integrity of slopes which are subject to the provisions of this program. (e) 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 31705\SLM294\AM\M 536274.2 06/15/04 2.5 Applicability of Soils Subsidence Remediation Program. Slopes subject to the soils subsidence remediation program are shown on Exhibit C attached hereto and defined by the City as follows ("Covered Slopes'): (a) Common Area Slopes. All designated common area landscape slopes maintained by the Association pursuant to the Declaration or any notice of addition or supplemental declaration. (b) Manufactured Slopes. All manufactured slopes having a minimum height of five (5) feet in vertical height. (c) Natural Slopes Within 200 Feet of Individual Lots. All natural slopes within two hundred (200) feet of individual Lots, or within 150 feet if within a fuel modification zone to the subdivision, whichever occurs first. 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 t year limitations period provided by Section 337.15 of the California Code of Civil Procedurt to Repair Law provided in Title 7, Section 895 to 945.5 of the California Civil Code. T 3. Claims Procedures and Adjustments. 3.1 During the Developer's Liability Period for the Tract, the Soils Subsidence Remediation Program shall be administered by the Developer. Thereafter, said program shall be administered by the Association. The Association shall retain the services of an independent claims adjusting service for all Long Term Covered Repairs in accordance with the requirements set forth in Section 3.2 below. The service 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 by forms provided by the Association and filed with the independent adjuster, who will promptly adjust such claims after obtaining an analysis on the scope and cost of completing all necessary repairs. The Surfrcial Soils Subsidence Fund will compensate for the cost of the independent claims adjusting service. 3.2 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. 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"). Any Claims Adjuster so selected shall be subject to approval by the other parties to this Agreement, which approval shall not be unreasonably withheld, delayed or conditioned. Any disapproval of the selected Claims Adjuster shall be given in writing to the administrator of the Soils Subsidence Remediation Program at the time of the claim and to the other parties to this Agreement within ten (10) days following receipt by the disapproving party of written notice of the 4 31705\SLM294\AGRhM 536274.2 06/15/04 selection of the proposed Claims Adjuster. If such written disapproval or a written approval are not given within said ten (10) day period, then approval of the proposed Claims Adjuster shall be deemed to have been timely and properly given. If the proposed Claims Adjuster is properly and timely disapproved as contemplated above, then the selection of the Claims Adjuster shall be made by an arbitrator in connection with an arbitration conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association as then in effect. Any such arbitration shall be held and conducted in Orange County, California before one arbitrator who shall be selected by mutual agreement of the parties to this Agreement within fifteen (15) days after any party to this Agreement has notified the other parties that it has commenced or desires to commence an arbitration proceeding for the purpose of selecting a Claims Adjuster. If the parties to the Agreement cannot or do not mutually agree upon an arbitrator within the said fifteen (15) day period, then any party to this Agreement may thereafter request in writing that the presiding Judge of the Superior Court of Orange County, California select and appoint the arbitrator, and any person so selected and appointed by such Judge shall serve as the arbitrator hereunder upon his/her acceptance of such appointment. The arbitrator appointed must be independent and have experience in dealing with soils and Soils Subsidence matters. Final decision by the arbitrator must be made within ninety (90) days from the date the arbitrator is appointed. The parties to this Agreement may submit the names and resumes of proposed Claims Adjusters to the arbitrator, but the arbitrator shall be free to select any Claims Adjuster he or she wishes to select s as the Claims Adjuster is independent, duly licensed to the extent required, and has experi soils and Soils Subsidence matters. Each party to this Agreement shall bear its own atto s ees, costs and expenses incurred in connection with the arbitration. The costs and fees of the arbitrator shall be borne equally by the parties to this Agreement. The decision of the arbitrator in selecting a Claims Adjuster shall be final and judgment may be entered on it in accordance with applicable law in any court having jurisdiction over the matter. The Claims Adjuster selected by the arbitrator as aforesaid shall be deemed the "approved" Claims Adjuster. The approved Claims Adjuster shall be promptly engaged by the party then administering the Soils Displacement Warranty program, and the Claims Adjuster so engaged shall be responsible for promptly investigating, allocating responsibility for and adjusting all claims which allege that a 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: (a) whether the claim is covered by the Soils Subsidence Remediation Program and if so then the scope and estimated cost of the Covered Repairs, (b) who has responsibility under this Agreement for actually performing the Covered Repairs or causing them to be performed, and (c) who has under this Agreement the financial responsibility for the requisite Covered Repairs. The Claims Adjuster shall complete his/its analysis as soon as reasonably possible and shall thereupon issue a written report to all of the parties to this Agreement, which written report shall set forth its findings on the issues referred to above and such other matters as the Claims Adjuster deems appropriate. The parties agree that they shall promptly comply with the decisions and findings of the Claims Adjuster as set forth in such report. The parties intend that the decisions and findings of the Claims Adjuster shall be deemed binding upon them and shall be enforceable against them by a court of competent jurisdiction and any party failing to comply with such decisions and findings of the Claims Adjuster as they affect such party shall be liable for damages and all other relief as may be determined appropriate by a court of competent jurisdiction. s 31705\SLM294WGRM1M 536274.2 06/15/04 4. Grace Period. A party shall only be deemed in default under this Agreement if such party fails to perform any of its duties or obligations under this Agreement and such failure is not cured within thirty (30) days after written notice of such failure has been given to such party. If such failure cannot reasonably be cured within thirty (30) days after the giving of such notice, then said party shall not be deemed in default under this Agreement if such party commences to cure the failure within said thirty (30) day period and thereafter diligently and in good faith continues to prosecute such curative action to completion. The notice of failure referred to in this Section 4 above shall specify the alleged failure in detail. 5. Security for Developer's Obligations. 5.1 Security for Developer's Obligations During Developer Repair Period. Within fifteen (15) days from the date hereof, Developer shall provide a surety bond or labor and material bond to secure Developer's performance of its obligations under Section 2.2, above. Such security shall be in an amount equal to the sum of Dollars ($ ) times seventy-five perce (75%) as set forth in Section 9-10-03(b)(4)(ii) of the Soils Subsidence Remediation Progra surety and the form of any bond posted pursuant to this Section shall be subject to the app kkt i ity, which approval shall not unreasonably be withheld. The security posted pursuantit i ection for the Tract, shall be released immediately upon the expiration of the Developer Repair Period for such Tract. 5.2 Security for Developer Repair Period. (a) Deposit of Funds. Within fifteen (15) days from the date hereof, Developer shall deposit into the Association's Surfrcial Soils Subsidence Fund cash in an amount equal to Dollars ($ ) times seventy-five percent (75%) as set forth in Section 9-10-03(b)(4)(ii) of the Soils Subsidence Remediation Program. (b) Security in Lieu of Cash Deposit(s). In lieu of the cash deposit(s) by Developer into the Association's Surficial Soils Subsidence Fund as provided above, Developer shall have the option to guaranty and secure performance of its obligations under Section 2.3, above, by one of the following alternatives, at the option of Developer with the approval of the City Council: (i) Corporate sureties approved by the City Attorney; (ii) A deposit, 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 (iii) An instrument of credit, from one or more financial institutions subject to regulation by the state or federal government, pledging that the funds necessary to carry out the warranty program are on deposit and guaranteed for payment. (c) Release of Security. The security posted pursuant to this Section 5.2 shall be immediately released by the Association and/or the City, as the case may be, upon the expiration of the Developer Repair Period, in accordance with Section 2.4(b) above. In 6 31705lSLMNAAGRM'n 536274.2 06/15/04 addition to the foregoing, subject to the terms of Section 5.6, below, at such time as the balance of the Association's Surficial Soils Subsidence Fund is equal to or greater than the sum of ($ ) times seventy-five percent (75%) as set forth in Section 9-10-03(b)(4)(ii) of the Soils Subsidence Remediation Program (a) all additional funds collected through assessments pursuant to the terms of Section 6. 1, below, shall be released to Developer, to the extent Developer has deposited cash in the Association's Surficial Soils Subsidence Account pursuant to the terms of Section 5.2(a), above, or (b) in the event Developer has posted security in lieu of cash deposits pursuant to the terms of Section 5.2(b), above, the amount of such security required to be maintained by Developer shall be reduced on a dollar per dollar basis, until Developer has been reimbursed for all of Developer's cash and/or Developer's security has been reduced to zero. 5.3 Rights of City Unon Developer's Default. If during the Developer Repair Period, in accordance with Section 2.2., above, or the period subsequent to the Developer Repair Period pursuant to the terms of Section 2.3, above, Developer (or its successor) fails to perform its obligations as required under those Sections, the City Attorney shall provide written notice to Developer of such failure and provide Developer with an opportunity to cure in accordance with Section 4, above. In the event Developer does not cure its failure of performance within the cure period, then the Council r resolution or other official Council action, after a noticed public hearing, authorize the c Engineering and Building ("Director's to draw upon the security posted by Developer p rtl' �t� this Section 5 to perform such work or otherwise cure Developer's default hereunder he "Authorized Monies'). The Association's Surficial Soils Subsidence Fund and any security provided by Developer pursuant to this Section 5 shall be vested such that the Director can access such funds or security after such Council action and any judicial reference regarding such action pursuant to Section 5.5, below. 5.4 Public Hearing. Developer (or its successor) will be entitled to reasonable notice of such public hearing, will have the right to appear at the hearing where the Council action is considered, and will be entitled to assert any and all defenses which Developer (or its successor) may possess as to such Council action including, without limitation, a claim that the work proposed to be performed is not within the scope Developer's obligation under this Agreement or is not reasonably necessary. 5.5 Dispute Resolution. In the event of a dispute between the City and Developer (or its successor) involving any aspect of the penalty provided for herein including, without limitation, the propriety of the Council action provided for herein, such dispute shall be resolved by a judicial reference pursuant to Section 7, below. 5.6 Deemed Reduction in Developer's Contribution. Developer agrees and acknowledges that if such Council action is taken properly pursuant to this Agreement and under the laws of the State of California, then as a penalty for nonperformance by Developer (or its successor) under the terms of Section 2.3, above, the security posted by Developer pursuant to Section 5.2 shall be deemed (for purposes of timing of recovery of Developer's security only) to have been reduced by an amount equal to the amount of the Authorized Monies. Under those circumstances, Developer's recovery of its funding or posting of security pursuant to Section 5.2 will be delayed until deposits by the Association into the Association's Surficial Soils Subsidence Fund pursuant to Section 6.1, below, build sufficiently to offset the deemed reduction in Developer's deposits or security. 7 31705\SLM294\AGRMT 536274.2 06/15/04 6. Homeowner Association Assessments to Fund the Association's Surficial Soils Subsidence Fund. 6.1 Association to Levy and Collect Monthly Assessments. The Association shall levy and collect homeowner assessments (the "Annual Assessment") with respect to each residential lot in the Project then subject to assessment each month in an amount as provided in the Association's annual budget as approved by the DRE for the Project (the "Budget"), commencing upon the first day of the month following the first close of escrow and conveyance of a residential lot in a DRE Phase (defined below) within the Project that is sold and conveyed to a member of the public under a final subdivision public report issued by the DRE. A "DRE Phase" consists of a group of residential lots, and may include common area lots, that are set forth in the Budget as a phase, approved by the DRE and covered by a single final subdivision public report. A portion of the Annual Assessment shall be designated to fund the Association's obligations under Section 2.3 as provided in the Budget (the "Association's Surficial Soil Subsidence Fund'. In no event shall the Association's Budget and the resulting Annual Assessment be changed to provide for the funding of less than Dollars ($) per month per residential lot then subject to assessment into the Association's Surficial Soil Subsidence Fund without the prior approval of the City and the Develo4er,hich approval shall not be unreasonably withheld. Notwithstanding the foregoing, the Asn shall have the right to change the Budget and/or the Annual Assessment pursuant to the terma aration without the consent of the City or the Developer (except as otherwise required un� SjPrms of the Declaration) provided any such change does not result in the funding of less than Dollars ($ ) per month per residential lot then subject to assessment into the Association's Surficial Soils Subsidence Fund. The Association's Surficial Soils Subsidence Fund, consisting of assessment payments and interest thereon, is intended to grow to a total of an amount (the "Project Fund Amount') equal to the sum of Dollars ($ ) times seventy-five percent (75%) as set forth in Section 9-10-03(b)(4)(ii) of the Soils Subsidence Remediation Program, by the end of the Soils Subsidence Warranty Period or earlier. The Association's Surficial Soils Subsidence Fund shall be established and maintained by the Association as a restricted reserve fund so that the funds therein shall be available to the Developer, the Association or the City for payment or reimbursement of costs for Covered Repairs implemented or to be implemented by the Developer and/or the Association as the party responsible therefor in accordance with the provisions of this Agreement. Monies constituting the Association's Surficial Soils Subsidence Fund and interest thereon shall be deposited and retained in a restricted reserve account ("Association's Surficial Soils Subsidence Account") to be established by the Association in its name as soon as practicably possible following the later of full execution and delivery of this Agreement or the issuance by the DRE of the final subdivision public report covering the first phase of development of any residential lots within the Project. Monies in the Association's Surficial Soils Subsidence Account shall only be withdrawn and used for the purposes contemplated in this Agreement. 6.2 Cessation of Assessments Under Certain Circumstances. Except as otherwise provided in this Agreement, the Association may cease levying and collecting assessments as contemplated in Section 6.1 upon the last to occur of (a) when Developer has been fully reimbursed pursuant to Section 5, or (b) when the total balance of the Association's Surficial Soils Subsidence Account reaches the Project Fund Amount. a 31705\SLM294WGRMn 536274.2 06/15/04 6.3 Replenishment of the Association's Surficial Soils Subsidence Account. In the event the Association's Surficial Soils Subsidence Account is depleted by the cost of making Covered Repairs, as contemplated by Section 2.4 of this Agreement, the Association will, by regular or special assessments, restore the total amount in the Association's Surficial Soils Subsidence Account to the lesser of (a) the balance of such fund immediately prior to such depletion or (b) the Project Fund Amount, within a reasonable period of time. 6.4 Responsibility of the Association and its Board of Directors. The Association and its Board of Directors shall be responsible for establishing and maintaining the Association's Surficial Soils Subsidence Fund and the Association's Surficial Soils Subsidence Account as herein provided, and for levying and using best efforts to collect assessments to fund the Association's Surficial Soils Subsidence Fund as herein provided. 7. Dispute Resolution. Any dispute arising out of this Agreement, but excluding any construction defect claims or right to repair claims made under Section 895 to 945.5 of the California Civil Code, shall be submitted to general judicial reference pursuant to California Code of Civil Procedure Sections 638 and 641-645.1 or any successor statutes thereto. Construction defect claims or right to repair claims made under Section 895 to 945.5 of the California Civil Code, shall be resolved in accordance with Article XIX oft Declaration. Within ten (10) days of receipt by any party of a written request to resolve any such i the parties shall agree upon a single referee. If the parties are unable to agree upon a referee �ji ten (10) day period, then any party may thereafter seek to have a referee appointed under the Code of Civil Procedure Sections 638 and 640. If the referee is appointed by the Court, the refer a shall be a retired judge from JAMS, the American Arbitration Association ("AAA's or similar mediation/arbitration entity. The proposed referee may be challenged for any of the grounds listed in Section 641 of the California Code of Civil Procedure. The parties shall cooperate in good faith to ensure that all necessary and appropriate parties are included in the judicial reference proceeding. If a dispute involves parties other than those listed above, this provision shall be interpreted to bring those third -party disputes into the general reference procedure prescribed herein to the extent permitted by law. All, parties shall cooperate in good faith to ensure that all necessary and appropriate parties are included in the judicial reference proceeding. 7.1 The parties shall use the procedures adopted by JAMS for judicial reference (or any other entity offering judicial reference dispute resolution procedures as may be mutually acceptable to the parties), provided that the following rules and procedures shall apply in all cases unless the parties agree otherwise: (a) If the Developer is a party to such judicial reference proceedings, any fee to initiate such proceedings shall be advanced by the Developer; however, the fees and costs of the judicial reference proceedings (e.g., the fee for the referee and all expert witness fees and costs, etc., but excluding all attorneys' fees) shall ultimately be borne as determined by the referee. In all cases, each party shall bear its own attorneys' fees at its sole cost and expense; (b) The proceedings shall be heard in the County in which the Project is located, unless all parties agree to a different location; 31705\SLM29441GRMn 536274.2 06/15/04 (c) The referee shall have the power to decide all issues of fact and/or law, and to report a statement of decision to the court on such issues, and to issue all recognized remedies available at law or in equity for any cause of action that is before the referee; (d) The referee may require one or more pre -hearing conferences; (e) The parties shall be entitled to discovery, and the referee shall oversee discovery and may enforce all discovery orders in the same manner as any trial court judge; (I) A stenographic record of the proceedings shall be made; (g) The referee's statement of decision shall contain findings of fact and conclusions of law to the extent applicable and shall stand as the decision of the court; (h) The referee shall have the authority to rule on all post -hearing motions in the same manner as a trial judge; (i) The parties sha mptly and diligently cooperate with one another and the referee, and shall perform such acts necessary to obtain a prompt and expeditious resolution of the dispute; and (j) The statement of decision of the referee upon all of the issues considered by the referee shall be binding upon the parties, and upon filing of the statement of decision with the clerk of the court, or with the judge where there is no clerk, judgment may be entered thereon in the same manner as if the action had been tried by the court. The decision of the referee shall be appealable as if rendered by the court. 7.2 WAIVER OF COURT AND JURY TRIAL. AS TO ALL DISPUTES SUBJECT TO THE ALTERNATIVE DISPUTE RESOLUTION PROVISIONS SET FORTH OR REFERENCED IN SECTION 7, EACH PARTY WAIVES ANY RIGHTS TO JURY TRIAL, APPEAL AND OTHER CIVIL LITIGATION PROCEEDINGS FOR SUCH DISPUTES, EXCEPT AS OTHERWISE EXPRESSLY SET FORTH OR REFERENCED HEREIN. IN THE EVENT ANY OF THE PROCEDURES SET FORTH OR REFERENCED HEREIN ARE DETERMINED TO BE INVALID OR UNENFORCEABLE, IN WHOLE OR IN MATERIAL PART, SUCH THAT THE RESOLUTION OF THE DISPUTE SHALL PROCEED BY WAY OF CIVIL LITIGATION PROCEEDINGS, EACH PARTY NONETHELESS WAIVES THE RIGHT TO JURY TRIAL WITH RESPECT TO SUCH DISPUTE. 8. Miscellaneous. 8.1 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. 10 31705lSLM294WGRM7� 536274.2 06/15/04 (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. 8.2 Reservation of License and Right to Enter. (a) There is hereby reserved for the benefit of Developer and its successors and the Association, a license and right to enter onto the common areas and individually -owned lots within the Project so that Developer or its successors and the Association and their agents may (a) inspect all landscaping, irrigation and drainage devices, and all other natural and artificial conditions which affect or might affect the integrity of the slopes which are the subject of the Slope Warranty, and (b) perform the duties of Developer to the full extent provided for herein. (b) Appropriate provisions in the grant deeds will grant the Association a license and right to enter onto the common areas and individually -owned lots of the Project so that the Association or its agents may inspect, maintain and repair the slopes within the Project to the full extent provided for herein. 8.3 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 sub' c review and approval by the Board of the Association and/or by its Architectural Review 'F 8.4 Reference in Deeds. The grant deeds fdi 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. 8.5 Collection and Reporting. The Board of the Association will be responsible for the collection of homeowner assessments for the Association's Surfrcial Soils Subsidence Fund and accounting for such assessments and interest thereon. The Board of the Association will report to Developer and to the City the incidence of covered and non -covered claims, as well as the balance in the Association's 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 Board 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. 8.6 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. 8.7 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. 8.8 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, u 31705%SLM294WGRM'n 536274.2 06/15/04 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. 8.9 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, except Article XVIII of the Declaration, which was prepared in accordance with City conditions of approval for Tract No. 16221 and is consistent with this Agreement. 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. 8.10 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 Project, and any or all, of them. (b) Effective upon a saleor other conveyance of Tract 16221 o r any portion thereof in bulk, Developer will be re e f its obligations under this Agreement as to the real property so sold or conveyed, to the ex aobligations are assumed in writing by Developer's successors in interest or assignees, i 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 prorata portion thereof shall be appropriately released and exonerated to Developer by the City. 8.11 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. 8.12 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. 8.13 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. 8.14 Termination. Unless otherwise agreed among the parties, this Agreement shall continue in perpetuity. 8.15 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 telecopier or other reliable electronic type mail system to the party to whom the notice is directed at the address of such party hereinafter set forth, or such other 12 31705\SLM294WGRM'n 536274.2 06/15/04 address and to such other persons as the parties may hereafter designate. Any such notice shall be deemed given upon receipt if by personal delivery, forty-eight (48) hours after deposit in the United States mail, if sent by mail pursuant to the foregoing, or twenty-four (24) hours after deposit with Federal Express or other reputable overnight delivery service, or twenty-four (24) hours after transmission by telecopier or other reliable electronic type mail system. To Developer: William Lyon Homes, Inc. 4490 Von Karman Avenue Newport Beach, California 92660 Attention: Tom Grable Copy To: Sheri L. Marvin, Esq. Jackson, DeMarco, Peckenpaugh 2030 Main Street, Suite 1200 Irvine, California 92614 To Association: Rancho Madrina Community Association c/o To thThe City of San Juan Capistrano Fr 32400 Paseo Adelanto Ok4 San Juan Capistrano, CA 92675 Attn: Director of Engineering and Building Telecopier: (714) 493-1171 The City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: City Attorney Telecopier: (714) 493-1171 13 31705\SLM294\WGRM'n 536274.2 06/15/04 IN WITNESS WHEREOF, this Agreement was executed on the date first above written. Attest: City Clerk CITY: THE CITY OF SAN JUAN CAPISTRANO By: Its: DEVELOPER: WILLIAM LYON HOMES, INC., a California corporation ®V44 By:— �70 Name: Its:_ ASSOCIATION: RANCHO MADRINA COMMUNITY ASSOCIATION, a California nonprofit mutual benefit corporation By:_ Name: Its: By:_ Name: Its: Approved as to form and content This day of 2004 City Attorney City of San Juan Capistrano 14 317051SLM294WGRNM 536274.2 06/15/04 STATE OF CALIFORNIA ) ss. COUNTY OF On personally appeared personally known to before me, ®R'qF r and 31705\SLM294W.GRN M 536274.2 06/15/04 ATTACHMENT 32400 PASEO ADELANTO SAN JUAN CAPISTRANO, CA 92675 (949) 493-1171 (949) 493-1053 FAx wwwsan/ Ivan capstran o. org September 22, 2004 NOTIFICATION OF ACTION BY THE CITY COUNCIL OF SAN JUAN CAPISTRANO MEMBERS OF THE CITY COUNCIL SAM ALLEVATO DIANE L. BATHGATE WYATT HART JOE SOTO DAVID M. SWERDLIN On September 21, 2004 the City Council of San Juan Capistrano met regarding: "Consideration of Agreement Establishing Soils Subsidence Remediation Program; (Tract 16221, William Lyon Homes, Inc.)(Rancho Madrina Community Association)" Item No. D8. The following action was taken at the meeting: Agreement establishing soils subsidence remediation program with Rancho Madrina Community Association and William Lyon Homes, Inc. for tract 16221, for William Lyon Homes, Inc., approved. The following documents are in the process of being executed: Agreement. If you have any questions regarding this action, please contact Sam Shoucair, Senior Engineer at 443-6355 for more detailed information. Thank you, Mitfi Ort Deputy City Clerk Cc: William Lyon Homes, Inc.'; Rancho Madrina Community Association'; Ray Holland, Interim Engineering & Building Director; Sam Shoucair, Senior Engineer San Juan Capistrano: Preserving the Past to Enhance the Future 32400 PASEO ADELANTO SAN JUAN CAPISTRANO, CA 92675 (949) 493-1171 (949) 493-1053 FAx rx ww.sanlnancaplstrano. org MEMBERS OF THE CITY COUNCIL NOTIFICATION OF MEETWO-CIVIPOTENTIAL INTEREST OF THE SAN JUAN CAPISTRANO CITY COUNCIL SAM ALLEVATO DIANE L. SATHGATE WYATT HART JOE SOTO DAVID M. SWERDLIN The City Council of San Juan Capistrano will meet at 7:00 p.m. on September 21, 2004 in the City Council Chamber in City Hall, to consider: "Consideration of Agreement Establishing Soils Subsidence Remediation Program; (Tract 16221, William Lyon Homes, Inc.)(Rancho Madrina Community Association)" — Item No. D8 If you have specific thoughts or concerns regarding this item, you are encouraged to participate in this decision making process. You can communicate with the City Council through correspondence addressed to the Council and/or by attending the meeting and speaking to the Council during the public meeting. Correspondence related to this item must be received at City Hall by 5:00 p.m. on Monday, September 20, 2004 to allow time for the Council to consider its content. If you would like to speak at the meeting, please complete a blue 'Request to Speak" form found inside the entrance to the Council Chamber. This form is turned in at the staff table, just in front of the Council dais. You will be called to speak by the Mayor when the item is considered. You have received this notice at the request of the City staff member Sam Shoucair, Senior Engineer. You may contact that staff member at (949) 443-6355 with any questions. The agenda, including agenda reports, is available to you on our web site: www.sanivancaoistrano.or-g. If you would like to subscribe to receive a notice when agendas are posted to the web site, please make that request by sending an e-mail to: council-agendasa-sanivancaoistrano.org. Meg Monahan, CMC City Clerk cc: William Lyon Homes, Inc.*; Rancho Madrina Community Association*; Ray Holland, Interim Engineering & Building Director; Sam Shoucair, Senior Engineer * Received staff report San Juan Capistrano: Preserving the Past to Enhance the Future