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12-0209_TAYLOR MORRISON OF CALIFORNIA, LLC._Grading Surety AgreementORIGINAL GRADING SURETY AGREEMENT THIS AGREEMENT is made by and between the CITY OF SAN JUAN CAPISTRANO, a municipal corporation, hereinafter referred to as the "City" and Taylor Morrison of California,LLC a Limited Liability Company referred to as "Developer". WITNESSETH WHEREAS, City will issue Grading Permit No B10-0710 to Developer to construct certain designated improvements which constitute a portion of that real property at the location of Tract 13436, commonly referred to as San Juan Hills C-2. WHEREAS, San Juan Capistrano Municipal Codes Section 8-2.08 requires the posting of financial security to secure the faithful performance and labor and materials for the grading and installation of improvements connected with issuance of grading permits including the construction of drainage and protection devices and any other corrective work to remove and eliminate engineering and geological hazards. WHEREAS, San Juan Capistrano Municipal Code Section 8-2.09 authorizes the Building Official to require additional bonding as security to ensure against adverse aesthetic impacts arising from incomplete grading and/or improvements from development projects which have not been completed. WHEREAS, the Building Official finds that the proposed project site is highly prominent and visible to the community, has unique topographic features or involves substantial grading of slope areas. NOW, THEREFORE, in consideration of the premises and promises hereinafter contained, City and Developer agree as follows: 1. Developer's Improvements Obligations. Developer shall, at its sole cost and expense, provide and furnish all labor, materials and equipment for the construction of grading improvements as approved by the City Engineer. The grading permit and plans, which describe all the work to be constructed per this agreement, are on file in the office of the City's Building Official. 2. Developer's Security. Developer shall provide a cash deposit, Certificate of Deposit or a bond by a duly authorized corporate surety subject to the approval of the City Attorney, or as approved by the City Engineer, to secure Developer's improvement obligations required under this agreement. The amount of the bond shall be $ 240,000.00 for all onsite grading improvements as approved by the City Engineer. This security shall also serve as security for restoration of the site. A copy of the surety instrument, as approved by the City Attorney. 3. Completion of Improvements. To ensure the protection of the public safety, health and welfare, Developer shall construct all said improvements in accordance with the schedule as set forth in Exhibit "A", and the conditions as set forth in Exhibit "B". 4. Developer Default. In the event Developer does not complete the required improvements, including erosion and silt control measures within the time required, using Best Management Practices (BMP) in implementing a Water Quality Management Plan in full compliance with Orange County National Pollutant Discharge Elimination System (NPDES) Storm Water Implementation Agreement and San Juan Capistrano Municipal Code Section 8-14, or abandons the project site, or suspends work for more than twenty working days other than previously prescribed, City shall have the right to immediately declare a default and to make demand on the surety for performance. 5. Restoration of Site. San Juan Capistrano Municipal Code Section 8-2.09 allows the City to require bonding as security to ensure against adverse aesthetic impacts arising from uncompleted grading, drainage and/or improvements which includes illicit non - storm drain water discharge. The purpose of this bonding shall be to restore the property to a safe and acceptable condition if the Developer defaults. This restoration shall include but not be limited to the following: A. Dismantle and/or demolish improvements; B. Grade property to its original contours as shown on the approved grading plans. C. Remove all debris and construction materials from the site; and D. Install erosion and silt control devices, including hydroseeding, to insure a uniform vegetative cover, or equivalent stabilization measures which include the use of such Best Management Practices MA as blankets, fiber matrices, catch basin filters, or other erosion resistant soil coverings or treatments to satisfaction of the Director of Engineering and Building. 6. Attorney's Fees. Developer agrees to pay City such sum as the court may judge as reasonable for the legal services of an attorney representing the City in an action brought to enforce or interpret the obligations of this agreement, and such sum shall be made a part of any judgment in such action against Developer if such action is determined in favor of said City. 7. Developer's Work in Safe Condition. Developer shall perform all work in a safe workmanlike manner and shall take such precautions as may be necessary to warn and protect the public from any dangerous condition caused by the construction of said improvements. 8. Liability. Developer shall hold City, its officers, and employees harmless from any and all claims, demands, causes of action, liability or loss of any sort because of, or arising out'of, the acts or omissions of Developer, his contractor, subcontractors, agents or employees in the performance of this agreement. In witness whereof, the parties have executed this agreement as of F{19 • q , 2012— Developer oIZ Developer By: (Signe) z (Title) Approved as to Form: By: Nasser Abbaszadeh, Public Works Director PIN STATE OF CALIFO NIA )SS COUNTY OF (/O k) ) On Cfbcuof� a, ?D12, Public, personally appeared Notary who proved to me on the basis of satisfactory evidence to be the person() whose name Rare subscribed to the within Instrument and acknowledged to me that t%she/they executed the same in t�s heytheH authorized capacity(Ilp4, and that by weir signature(,sj'on e instrument the person(, or the entity upon behalf of which the person(!'acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. a 4 My Commission Expires: �` NotaryName: VvaI nrf�-LL Notary Registration Number: S�b49S _ LORI MICHEL COMM#7858485 !II r Naw Puaac.claa. W n nuxct Ccuxrr Cartm. Fa JULY TO ?J77 .. This area for official notarial seal NotaryPhone:�a4(. (aV I County of Principal Place of Business: EXHIBIT "A" SCHEDULE FOR COMPLETION OF IMPROVEMENTS Completion Date Task 3/31/2012 Rough Grade Certification 12131/2013 Landscape Irrigation 12/31/2013 Landscape Planting EXHIBIT "B" CONDITIONS FOR COMPLETION OF IMPROVEMENTS The grading for this project shall be in strict conformance with the grading plans as well as the San Juan Capistrano Municipal Code. 2. Grading operations shall commence within fourteen (14) calendar days after issuance of Grading Permit. Winter grading will be conducted in strict accordance with the dynamic erosion and silt control plan submitted by the Developer, and approved by the City. This erosion and silt control plan reflects erosion and silt mitigation measures for expected grading conditions as the work progresses through the winter season and shall not be amended except with the permission of the City. In the event Developer does not wish to implement winter grading, or permission for winter grading is rescinded, static erosion and silt control plans reflecting current conditions of grading shall be submitted within ten (10) days of cessation of work. These plans shall: 1. Identify all pollutant sources including sources of sediment that may affect the quality of storm water discharges associated with the construction activity. 2. Include the erosion and sediment control planting and hydroseeding to insure a uniform vegetative cover or equivalent stabilization measures which include the use of such Best Management Practices as blankets, fiber matrices, catch basin filters or other erosion resistant soil covering or treatments to the satisfaction of the City Engineer. 3. Suspension in excess of twenty (20) working days of work authorized by approved grading plans and grading permit for subject property, including erosion and sediment control measures and landscaping and irrigation, shall constitute default of this agreement. 4. The supervising civil engineer and soils engineer shall file biweekly progress reports of all grading operations with the Building Official. An interim compaction report, for that work completed at the time work is suspended for the rainy season, shall be filed with the Building Official. This interim report shall conform to the grading code requirements for final compaction reports. 5. Contractor shall control dust to the satisfaction of the Building Official or his deputy. During grading, Contractor shall keep water truck on site and dampen work area, grounds, and loaded trucks. 6. Grading operations suspended during the rainy season shall be resumed no later than 15 days from date of suspension termination. 7. Installation of interim erosion and sediment control devices and systems shall commence within seven (7) days after rough grade certification has been approved by the Building Official and must be completed within fifteen (15) days of rough grad certification. Final erosion and sediment controls devices, planting, landscaping and irrigation systems shall be installed prior to final inspection of the grading permit. 8. All work shall be performed in strict observation of the Hours of Operation in accordance with San Juan Capistrano Municipal Code Section 8-1.03. 9. Contractor shall adhere to conditions of haul route permit and encroachment permit issued by the City Engineer. 10. Parking for construction crew is to be on-site. Bond No. 1071734 PERFORMANCE BOND KNOW ALL MEN BY THESE PRESENTS, that Taylor Morrison of California. LLC ,as principal (hereinafter called "contractor", and L.exon Insurance Company as Surety (hereinafter called "Surety"), are held and firmly bound unto the City of San Juan Capistrano, as oblige (hereinafter called "ciity"), in the amount of Two Hundred Forty. Thousand and 001100 ------------------- —------ ---------- Dollars($ �4�, 00 0-0iZ------_______—) for payment whereof Contractor and Surety bind themselves, their heirs, executors, administrators, successors and assigns, jointly and severally, fairly by these presents. WHEREAS, contractor has, by written agreement dated , entered into a (describe agreement): naanilla at San Juan Hills - Gradinq improvements at Tract 13436, , which contact is, by reference, made a part hereof. NOW, THEREFORE, the condition of this obligation is such that, if contractor shall promptly and faithfully perform said agreement then this obligation shall be null and void; otherwise it shall remain in full force and effect. Surety waives whatever legal right it may have to require that a demand be made first against the -Contractor in-the-eventofdefaultz- BE IT FURTHER RESOLVED, that: 1. As a part of the obligation secured hereby, and in addition to the face amount, specified, there shall be included costs and reasonable expenses and fees, including reasonable attorney's fees, incurred by the City in successfully enforcing such obligation, all to be taxed as costs and included in any judgment rendered. 2. Said Surety, for value received, hereby stipulates and agrees that no change, or extension of time, alteration, or modification of the contract documents, or of the work to be performed thereunder, shall in any way affect its obligation or this bond, and it does hereby waive the notice of any such change, extension of time, alteration or modification of the contract documents or of work the be performed thereunder. February 2012 Executed this 3rd day of Fe4006, At - Tampa, Floridaralifomia, Taylor Morrison of Califomia, LLC ,�(�,{/p\� PRINCIPAL (NOTARIZATION AND SEAL) LexInsurance�ompany ` By: t♦v_�>-- _ J Anett Cardinale SURETY Attomev-in-Fact / (NOTARIAZATION AND SEAL) - Madanella Bamola NOTARY PUBLIC -STATE OF FLORIDA ' ' Marianella Bamola Commissioa #DD755998 -;� Expires: MAY 05, 2012 90NTM ID RU AMNMC e=1NG CO., V(C CAN WILLIS OF FLORIDA 3000 BAYPORT DRIVE, #300 TAMPA, FL 33807 INQUIRIES: (813) 281-2085 U POWER OF ATTORNEY `J Lx- 044331 Lexon Insurance Company KNOW ALL MEN BY THESE PRESENTS, that LEXON INSURANCE COMPANY, a Texas Corporation, with its principal office in Louisville, Kentucky, does hereby constitute and appoint: Carol H. Hermes, David H. Carr, Anett Cardinale * * * * * * its true and lawful Atiorney(s)-In-Fact to make, execute, seal and deliver for, and on its behalf as surety, any and all bonds, undertakings or other writings obligatory in nature of a bond. This authority is made under and by the authority of a resolution which was passed by the Board of Directors of LEXON INSURANCE COMPANY on the 1st day of July, 2003 as follows: Resolved, that the President of the Company is hereby authorized to appoint and empower any representative of the Company or other person or persons as Attorney -In -Fact to execute on behalf of the Company any bonds, undertakings, policies, contracts of indemnity or other writings obligatory in nature of a bond not to exceed $ 2,000,000.00 Two million dollars ••••'••'••••••••'••"••••'•'"""•'•'••'•"••""•""""" dollars, which the Company might execute through its duly elected officers, and affix the seal of the Company thereto. Any said execution of such documents by an Attorney -In -Fact shall be as binding upon the Company as if they had been duly executed and acknowledged by the regularly elected officers of the Company. Any Attorney -In -Fact, so appointed, may be removed for good cause and the authority so granted may be revoked as specified in the Power of Attorney. Resolved, that the signature of the President and the seal of the Company may be affixed by facsimile on any power of attorney granted, and the signature of the Vice President, and the seal of the Company may be affixed by facsimile to any certificate of any such power and any such power or certificate bearing such facsimile signature and seal shall be valid and binding on the Company. Any such power so executed and sealed and certificate so executed and sealed shall, with respect to any bond of undertaking to which it is attached, continue to be valid and binding on the Company. IN WITNESS THEREOF, LEXON INSURANCE COMPANY has caused this instrument to be signed by its President, and its Corporate Seal to be affixed this 21st day of September, 2009. LEXON INSURANCE COMPANY JINSURANCE BY David E. Campbell President ACKNOWLEDGEMENT On this 21st day of September, 2009, before me, personally came David E. Campbell to me known, who being duly sworn, did depose and say that he is the President of LEXON INSURANCE COMPANY, the corporation described in and which executed the above instrument; that he executed said instrument on behalf of the corporation by authority of his office under the By-laws of said corporation. "OFFICIAL SEAL" MAL-REEN K- AYE Notary Public, State of Illinoisl� My Commission Expires 09/21/13 Maureen K. Aye CERTIFICATE Notary Public I, the undersigned, Secretary of LEXON INSURANCE COMPANY, A Texas Insurance Company, DO HEREBY CERTIFY that the original Power of Attorney of which the foregoing is a true and correct copy, is in full force and effect and has not been revoked and the resolutions as set forth are now in force. Signed and Sealed at Woodridge, Illinois this 3rd Day of February , 2012 A ; TEXAS = INSURANCE COMPANY Y Donald D. Buchanan Secretary "WARNING: Any person who knowingly and with intent to defraud any Insurance company or other person, files an application for Insurance or statement of claim containing any materially false Information, or conceals for the purpose of misleading, information concerning any fact materi- al thereto, commits a fraudulent Insurance act, which Is a crime and subjects such person to criminal and civil penalties:' LX2 t�� STATE OF CA FORNIA )SS COUNTY OF MCL On Public, personally appeared ry who proved to me on the basis of satisfactory evidence to be the person( whose name/ subscribed to the within instrument and acknowledged to me that teMln�strument ecuted the same in her�eir authorized capacity(jas'f, and that by Ci4i" /her/tbeir signature(,e'f on the person(, or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph Is true and correct. WITNESS my hand and official seal. Si re- i My Commission Expires: LORI MICHEL COMM #1858495 u�NOWYa�� Gxrtm JULY 2013 This area for ofdal notarial seal Notary Name: �� 6\L Notary Phone: "` C 3 i , �� 1 Notary Registration Number: S County of Principal Place of Business: c�ix-tfi�� MEMORANDUM February 13, 2012 TO: Maria Moms, City Clerk % L - FROM: Deena Berens, Senior Permit Technician G SUBJECT: Performance Bond, Rough Grading for San Juan Hills - C-2 Tract 13436 ----------------- ----------------------------- Please find attached for your records, the original Grading Surety Agreement and Performance Bond # 1071734 in the amount of $240,000.00 forthe placement of bond forthe purpose of grading for San Juan Hills C-2 Area- Rough Grading for Taylor -Morrison Tract 13436. Attachment