00-0121_DMB LADERA, LLC_Grant Deed (Recorded)�1
32400 PASEO ADELANTO
SAN JUAN (:APISTRANO, CA 92675
(949)493-1171
(949) 493-1053 (FAX)
December 6, 1999
Clerk -Recorder's Office
County of Orange
P. O. Box 238
Santa Ana, California 92701
Re: Grant Deed - DMB Ladera, LLC
Gentlemen:
MEMBERS OF THE CITY COUNCIL
COLLENE CAMPBELL
JOHN GREINER
WYATT HART
GIL JONES
DAVID M. SWEROUN
CIN MANAGER
GEORGE SCARBOROUGH
Recorded in the County of Orange, California
Gary L Granville, Clerk/Recorder
No Fee
20000038238 10:58AM 01/21/00
004 00047146 107 23
587 36 0 Non Dis 0.00 0.00 0.00 0.00 0.00
0.00 0.00
Doc Types: 587
The following document is enclosed for recordation:
CONFORMED COPY
Not Compared with Original
Grant Deed from DMB Ladera, LLC to the City to facilitate repair of landslide damage
When placed of record, please return said document to this office.
A duplicate copy of this letter is enclosed. Please stamp Document Number and date of
recording on the letter and return it to this office in the enclosed, stamped, self-addressed
envelope at your earliest convenience.
Thank you for your cooperation.
Very truly yours,
Cheryl John on
City Clerk
Enclosure
Document Number
Date
onuo use
1s
San Juan Capistrano: Preserving the Past to Enhance the Future
•
RECORDING REQUESTED BY:
CITY OF SAN YUAN CAPISTRANO,
a municipal corporation
WHEN RECORDED, MAIL TO:
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Attn: George Scarborough
John Shaw, Esq.
L
Recorded in the County of Orange, California
Gary L Granville, Clerk/Recorder
IIIIIIIIIIIIIIIIIIIIIIlljllllllllI No Fee
20000038238 10;68RM 01/21/00
004 00047146 107 23
587 36 0 Non Dis 0.00 0.00 0.00 0.00 0.00
0.00 0.00
Doc Types: 587
GRANT DEED
FOR A VALUABLE CONSIDERATION, receipt of which is hereby
acknowledged, DMB LADERA, LLC, a Delaware limited liability company ("Ladera"), hereby
grants to THE CITY OF SAN YUAN CAPISTRANO, a municipal corporation ("The Ci ") that
certain real property ("Property") located in the County of Orange, State of California, more
particularly described on Exhibit A attached hereto.
MAIL TAX STATEMENTS TO ADDRESS ABOVE
C-)
0 0
A. EXCEPTING THEREFROM, as reserved in the Grant Deed recorded
December 10, 1996 as Instrument No. 19960624029, in the Official Records of the County of
Orange, State of California, the oil, oil rights, minerals, mineral rights, natural gas rights and
other hydrocarbon rights, together with the water, water rights or interests therein appurtenant or
relating thereto.
B. FURTHER EXCEPTING AND RESERVING unto Ladera, its successors
and assigns, together with the right to grant and transfer all or a portion of the same, as follows:
1. Telecommunications: TechnoloQv. The right to place on, under or
across the Property, transmission lines and other facilities for a community telecommunication
and/or other technology communications, data transfer and similar systems and thereafter to own
and convey such lines and facilities, and the right to enter upon the Property to service, maintain,
repair, reconstruct and replace said lines and facilities.
2. Public Utilities. Nonexclusive easements in gross on, over and
under the Property for the construction, installation, repair, replacement and maintenance of
electric, gas, telephone, water, sewer, drainage and other utility facilities; provided, except as
such easements have been conveyed to a utility company or other public or quasi -public entity,
said easements in favor of Ladera shall automatically terminate and be of no further force or
effect as to any portion of the Property upon the conveyance thereof to a buyer or other
transferee who is entitled to receive by reason of such conveyance a subdivision public report
pursuant to California Business and Professions Code Section 11018.2 or any similar statute
hereafter in effect or upon conveyance to an association whose members consist in whole or in
part of such buyers or other transferees.
3. Surface Runoff. Permanent, nonexclusive easements in gross on,
over and under the Property for the purposes of accepting surface runoff (including runoff of
reclaimed or other water used for irrigation) from the adjacent slope (but not from the areas at
the top of slope); provided, however, that the use of such easement shall be subject to the
requirement that the owner of such slope (if other than the owner of that portion of the Property
adjacent thereto) shall take reasonable care to keep such slope vegetated so as to reasonably
minimize the runoff therefrom.
C. FURTHER SUBJECT TO:
1. Taxes and Assessments. General and special real property taxes
and assessments and supplemental assessments, if any, for the current fiscal year.
2. Open Space Conservation Easement Agreement. That certain open
space conservation easement agreement by and between Ladera and The Ladera Land
Conservancy, a California non-profit corporation, a copy of which is attached hereto as Exhibit
B and the covenants, conditions, restrictions, rights, reservations, benefits and burdens therein
contained ("Open Space Conservation Easement Agreement"), each and all of which are
hereby expressly incorporated herein by this reference.
3. Record Interests. All other covenants, conditions, restrictions,
reservations, rights, rights -of -ways, dedications, offers of dedication and easements of record or
apparent.
D. General Purpose and Provisions.
L Purpose. Ladera is the master developer of the Ladera Ranch
planned community in accordance with the Ladera Development Agreement recorded January
17, 1997 in the Official Records of Orange County, California as Instrument No. 19970027386.
Among the distinguishing characteristics of this master -planning is the clear delineation of use
areas throughout the Ladera Ranch so as to ensure both harmonious growth and development and
the maximization of the value of the remaining portion of the Ladera Ranch. Accordingly,
Ladera desires that the use of the Property be clearly restricted in accordance with the Open
Space Conservation Easement Agreement.
2. Covenants Run with Property. The Open Space Conservation
Easement Agreement is hereby declared and agreed to be part of a general plan for the purpose
of assuring the enhancement and protection of the value, desirability and attractiveness of the
Ladera Ranch. The Open Space Conservation Easement Agreement shall run with the Property
and be binding upon and burden The City and all persons having or acquiring any right, title or
interest therein during their ownership of such interest or any part thereof, together with their
successors and assigns. Every person or entity who now or hereafter owns or acquires any right,
title or interest in or to any portion of the Property or any improvements thereon is and shall be
conclusively deemed to have consented and agreed to every covenant, condition and restriction
contained herein contained or referenced, whether or not any reference to this instrument is
contained in the instrument by which such person acquired an interest in the Property or any such
improvements.
3. Termination or Amendment. Except as specifically provided in the
Open Space Conservation Easement Agreement, the Open Space Conservation Easement
Agreement may be validly terminated, amended, modified or extended, in whole or in part, only
by recordation with the Orange County Recorder of a proper instrument which has been duly
executed and acknowledged by Ladera and The Ladera Land Conservancy.
4. Costs of Enforcement. In the event any legal or equitable action or
proceeding shall be instituted to enforce any provision of this instrument, the party prevailing in
such action shall be entitled to recover from the losing party all of its costs, including court costs
and reasonable attorneys' fees.
5. Invalidity of Provision. If any provision of this instrument as
applied to any party or to any circumstance shall be adjudged by a court of competent
jurisdiction to be void or unenforceable for any reason, the same shall in no way affect (to the
maximum extent permissible by law) any other party or other provision under circumstances
different from those adjudicated by the court, or the validity of enforceability of this instrument
as a whole.
0 0
6. Notices. Any notice to be given or other document to be delivered
by any party to the other or others hereunder, and any payments from The City to Ladera, may be
delivered in person to an officer of any party, or may be delivered by Federal Express, private
commercial delivery or courier service for next business day delivery or may be deposited in the
United States mail in the County of Orange, State of California, duly certified or registered,
return receipt requested, with postage prepaid, and addressed to the party for whom intended, as
follows:
If to Ladera: DMB Ladera, LLC
c/o Rancho Mission Viejo, LLC
28811 Ortega Highway
San Juan Capistrano, California 92675
Attn: Development Administration Director
Fax No. (949)488-2676
With copy to:
If to The City:
Brobeck, Phleger & Harrison LLP
38 Technology Drive
Irvine, CA 92618
Attn: Drew Jones, Esq.
Mr. George Scarborough
City Manager
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
With copy to: John Shaw, Esq.
City Attorney
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Notice may also be given by facsimile transmission ("Fax") to any party at the respective Fax
number given above and marked "RUSH - PLEASE DELIVER IMMEDIATELY," provided
receipt of such transmission shall be confirmed by follow-up notice within seventy-two (72)
hours by another method authorized above. Any party hereto may from time to time, by written
notice to the other, designate a different address which shall be substituted for the one above
specified. If any notice or other document is sent by mail as aforesaid, the same shall be deemed
served or delivered seventy-two (72) hours after the mailing thereof as above provided. Notice
by any other method shall be deemed served or delivered upon actual receipt at the address or
Fax number listed above.
P
rj
IN WITNESS WHEREOF, Ladera has executed this Grant Deed on the day and
year hereafter written.
"LADERA"
DMB LADERA, LLC, a
Delaware limited liability company
October 3'1� Iggq
By: RANCHO MISSION VIEJO, LLC, a
Delaware limited liability company,
its agent and manager
By:
Donald L. Vodra
Chief Operating Officer
By. I
Tom Staley
Vice President
ACCEPTANCE:
The City hereby accepts this Grant Deed on the terms and conditions herein stated
and agrees for itself and its successors and assigns to perform all the obligations of The City
herein.
"THE CITY"
THE CITY OF SAN JUAN CAPISTRANO,
0 0
STATE OF CALIFORNIA )
)ss
COUNTY OF ORANGE )
On ORole 2 Z Z_ , 1999 before me,
L- \/odin a-. LA
personally appeared
_ personally known to
me ( to be the peAon(s) whose name(s)
,islare subscribed to the within instrument and acknowledged to me that husks/they executed the
same in her/their authorized capacity(ies), and that by lamer/their signature(s) on the
instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the
instrument.
WITNESS my hand and seal.
Signature
STATE OF CALIFORNIA )
)ss
COUNTY OF ORANGE )
City of San Juan )
Capistrano
(Govt Code 40814 & Civil Code 1181)
On
1999 before me,
AM T. BM®t
Cmnbdoe# moms
rbwvncAC—caoft
Cmroe County
6MV0orMEq*MAug29.20M r
Cheryl Johnson, City Clerk personally appeared
George Scarborough_ personally known to
me (ofpmvedltffme- ox -the -basis-o€ satin€actor-y-evidence) to be the person(* whose named*
is/acre subscribed to the within instrument and acknowledged to me that he/sem executed the
same in his/heir authorized capacity, and that by his/ham signature(s) on the
instrument the person(A) or the entity upon behalf of which the person( acted, executed the
instrument.
WITNESS my hand and seal.
Signature _.
• Description of the Property 0
LEGAL DESCRIPTION
A portion of Rancho Mission Viejo in the County of Orange, State of California as shown on a
Record of Survey filed in Book 9, Pages 15 through 25, inclusive, of Record of Surveys, in the office
of the County Recorder of said County, described as follows:
Beginning at a point in the Northeasterly boundary of Tract No. 6381 as shown on a map filed in
Book 433, Pages 5 through 15, inclusive, of Miscellaneous Maps, in the office of said County
Recorder, South 52°57'27" East 60.50 feet along said boundary, from the most Northerly comer of
Lot 47 of said Tract; thence North 37°02'33" East 43.00 feet; thence North 44°01'45" East 102.76
feet; thence North 56°21'04" East 145.17 feet; thence South 71°38'04" East 149.89 feet; thence South
33°40'38" East 181.71 feet; thence South 43°17'03" East 267.81 feet; thence South 52°28'19" East
236.01 feet; thence South 33°42'02" West 137.23 feet; thence South 86°03'43" West 131.14 feet to
said boundary; thence, along said boundary, North 52°57'27" West 783.02 feet to the True Point of
Beginning.
As more particularly shown on Exhibit "B" attached hereto and by this reference made a part
hereof.
Rory S. Williams, L.S. No. 6654
License Expires: December 31, 1999
V--- 1 ..f 9
\-AN D
Rory S. Williams
Exp. 12/31/99
s
No 6654
OF CALIF%
September 9, 1999
Page 1 of I
W.O. 2426-1T
H&A Legal No. 4806
Prepared by: V. Edge
Checked by: R. Williams/d
0 EXHIBIT "B"
Sketch to Accompany Legal Description
60 50'727"E
_ N37°02'33'E
43.00'
-102.
137 73'
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HUNSAKER & ASSOCIATES EASEMENT FOR
I R V I N E• I N C SLOPE REPAIR PURPOSES
PUNNING • ENGINEERING SURVEYING
Epee H,{ • 1e . U92618 " Pre (949) M3 W10 •0, (w9) M30759 UNINCORPORATED TERRITORY OF THE COUNTY OF ORANGE. STATE OF CALIFORNIA
DATE.9-9-99 1 ','v, - - - V. Edge CK ° R. Willioms SCALE: 1-- 150 W.O. 2426-1T
`"E` I:\ST0NERIDGE\LD\4806\SHT0I.DWG „°G ACAD-MC H&A LEGAL No. 48061 SHEET 1 OF 1
Page 2 of 2
M
Exhibit E
RECORDING REQUESTED BY:
DMB Ladera, LLC,
a Delaware limited liability company
WHEN RECORDED, MAIL TO:
Brobeck, Phleger & Harrison LLP
38 Technology Drive
Irvine, California 92618
Attention: Bryan Ngo, Esq.
DECLARi%TION OF COVENANTS,
CONDITIONS AND RESTRICTIONS
(Stoneridge Development)
By and Between
DML ',ADERA, LLC,
a Delaware Limited Liability Company,
as "Ladera"
and
S.C. SLIDE, INC.,
a California non-profit mutual benefit corporation
and
THE CITY OF SAN JUAN CAPISTRANO,
a municipal corporation
Effective Date: 1999
::01)MATCDOM000L IB IA 8912 1 \3
DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS
(Stoneridge Development)
THIS DECLARATION OF COVENANTS, CONDITIONS AND
RESTRICTIONS (the "Declaration") is made this _ day of , 1999, by
and between DMB LADERA, LLC, a Delaware limited liability company, its successors and
assigns (Madera") and S.C. SLIDE, INC., a California non-profit mutual benefit corporation
and THE CITY OF SAN JUAN CAPISTRANO, a municipal corporation.
THIS DECLARATION is based upon the following facts, intentions and
understandings:
(a) Ladera is the master developer of the Ladera Ranch planned community in
accordance with the Ladera Development Agreement recorded January 17, 1997 in the Official
Records of Orange County, California as Instrument No. 19970027386 ("Development
Agreement").
(b) In furtherance of the Development Agreement, Ladera intends to dedicate
certain portions of Parcel 2 of Lot Line Adjustment LL 96-026 (the "Adjacent Property") in the
unincorporated territory of the County of Orange, State of California, as shown on exhibit "B"
attached to that certain document recorded on November 11, 1996 as Instrument No.
19960587414 in the official records of said county, for open space and other purposes in
accordance with the Development Agreement and an open space agreement with the County of
Orange.
(c) SC is a California non-profit mutual benefit corporation whose members
are the Stoneridge Owners who own residential properties in the Stoneridge development
("Stoneridge Properties") located in the City of San Juan Capistrano as more particularly
described in Exhibit A attached hereto.
(d) The Stoneridge Owners have experienced land subsidence problems on
the Stoneridge Properties. In order to assist the Stoneridge Owners and SC in curing the land
subsidence problems on the Stoneridge Properties ("Land Subsidence Problem"), the City has
indicated a desire and intention to acquire, via condemnation or transfer in lieu of condemnation,
certain property (the "Property") more particularly described in Exhibit B attached hereto
which is adjacent to the Stoneridge Properties and is currently a part of the Adjacent Property.
(e) In lieu of compelling the City to condemn or otherwise take the Property
by means of eminent domain, Ladera has indicated a desire to acquiesce to the transfer of the
Property to the City.
t
OCOLIBI\BN2\189111 03(4IXM31 DOC)
otherwise), permits, orders and any other requirements of governmental authorities and agencies
having proper jurisdiction.
(2) "Lily" means the City of San Juan Capistrano, a municipal corporation.
(3) "Coun " means, if the context denotes a location, Orange County,
California, and, if the context denotes an entity, the County of Orange, a political subdivision of
the Sate of California.
(4) "Ladera" means DMB Ladera, LLC, a Delaware limited liability
company, its successors and any person or entity to whom Ladera assigns its rights under this
Declaration.
(5) "Land Transfer Agreement" means that certain land transfer agreement
dated October , 1999 by and between Ladera, SC and Stoneridge Owners.
(6) "Open Space Conservation Easement Agreement" means that certain
open space conservation easement agreement by and between Ladera and The Ladera Land
Conservancy, a California non-profit corporation, a copy of which is attached hereto as Exhibit
D.
(7) "Person" means any individual, partnership, corporation, limited liability
company, trust or other entity to which reference is made un6er this Declaration.
(8) "Restrictions" mean the covenants, conditions, restrictions and other
limitations set forth in this Declaration.
(9) "SC" means S.C. Slide, Inc., a California non-profit mutual benefit
corporation, consisting of individual owners who own individual residential properties in the
Stoneridge development located in the City.
(10) "Stoneridge Owners" mean those persons as referenced in the Land
Transfer Agreement and all future owners of record who own Stoneridge Properties and are or
shall become members of SC.
(11) "Stoneridge Party" means the City and SC.
(12) "Stoneridge Properties" mean those residential properties within the
Stoneridge development which are owned by Stoneridge Owners and which are more
particularly identified and described on Exhibit A attached hereto.
1. DECLARATONS. Ladera and the Stoneridge Party hereby covenant,
agree and declare the following:
(a) The Property shall be subject to the terms, conditions and
covenants of that certain Open Space Conservation Easement Agreement;
OCOLIBI iN2\18912103(01% 3-D )
(b) Each Stoneridge Party shall not construct any structures or
improvements on the Property without the prior written consent of Ladera, which consent shall
not be unreasonably withheld;
(c) The open space within the Property shall be preserved, maintained,
and protected, and any and all fuel modification requirements affecting the Property shall be
complied with in accordance with all Applicable Laws; and
(c) The Property shall not be used in any manner which shall impact
or disturb the Adjacent Property, including but not limited to, subjecting the Adjacent Property to
any fuel modification requirements under Applicable Laws.
2. RELEASE OF LADERA AND RMV.
Stoneridge Party hereby releases and forever discharges Ladera and Rancho
Mission Viejo, LLC, a Delaware limited liability company ("RMV"), together with each
member of Ladera and RMV and any affiliated or subsidiary partnership, limited liability
company and/or corporation and their collective officers, directors, shareholders, employees,
agents, attorneys, insurers and partners (collectively "Ladera Indemnitees") of and from any
and all actions, causes of action, claims, rights, demands, debts, liens, damages, obligations,
liabilities, costs, expenses, fees, including, without limitation, attorneys' fees, breach of contract,
acts, charges or accountings of any nature whatsoever, whether known or unknown, fixed or
contingent, which Stoneridge Party has or may hereafter have against any of the same arising out
of or related to and prior, current or future condition on, about, under or otherwise affecting the
Property, the Adjacent Property, the Stockpile Area and/or of the Stoneridge Properties,
including as intended to be addressed by the Repair (and any condition of the Property and/or the
Stoneridge Properties necessitating the same) or otherwise caused thereby (collectively, the
"Condition"). Stoneridge Party agrees and represents that it may have claims against one or
more of the i.adera Indemnitees of which it has uc ,mowledge at the time of the execution of this
Agreement, but that this Agreement is specifically intended to and does extend to any and all
claims in any way based upon, connected with, or related to the Condition and all actions taken
in connection therewith, including the negotiation of this Agreement, whether known or
unknown, claimed or suspected as of the date of the execution of the Agreement. As further
consideration and inducement, Stoneridge Party hereby waives the provision of California Civil
Code § 1542, which provides as follows:
A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have materially
affected the settlement with the debtor.
3. RELEASE OF THE CITY. SC hereby releases and forever discharges
the City, together with its council members, staff, employees, (collectively "City Indemnitees")
of and from any and all actions, causes of action, claims, rights, demands, debts, liens, damages,
OCOUBI\BN2\18912103(4IXM31 DOC)
obligations, liabilities, costs, expenses, fees, including, without limitation, attorneys' fees, breach
of contract, acts, charges or accountings of any nature whatsoever, whether known or unknown,
fixed or contingent, which SC has or may hereafter have against any of the same arising out of or
related to the Condition on, about, under or otherwise affecting the Property, the Adjacent
Property, the Stockpile Area, and/or any of the Stoneridge Properties. SC agrees and represents
that it may have claims against one or more of the City Indemnitees of which it has no
knowledge at the time of the execution of this Agreement, but that this Agreement is specifically
intended to and does extend to any and all claims in any way based upon, connected with, or
related to the Condition and all actions taken in connection therewith, including the negotiation
of this Agreement, whether known or unknown, claimed or suspected as of the date of the
execution of the Agreement. As further consideration and inducement, SC hereby waives the
provision of California Civil Code § 1542, which provides as follows:
A general release does not extend to claims which the creditor does not know or
suspect to exist in his favor at the time of executing the release, which if known by him
must have materially affected the settlement with the debtor.
4. INDEMNITY.
Stoneridge Party shall indemnify and hold harmless Ladera, Ladera Indemnitees,
the City and any other City Indemnitees from and against any liability, loss, damage, injury or
claim of any kind or character to any person or property caused by or relating to, with or without
fault, and arising from any of the following (and the phrase "if and to the extent it affects" the
Condition and/or the Property and/or Adjacent Property, including the Stockpile Area or words
to that effect shall mean if and to the extent it affects, arises out of or relates to the Condition, the
Property and/or Adjacent Property, including the Stockpile Area or any improvement constructed
thereon):
a. The failure to perform the Repair or otherwise correct the
Condition in accordance with the Plans (as defined in the Land Transfer
Agreement) and the requirements of applicable law and regulations and the
generally accepted standards of such profession or similar services required
thereby;
b. Any acts or omissions of any Stoneridge Party or the agents or
representatives of Stoneridge Party in the performance of the Repair or associated
work or services;
C. The breach by any Stoneridge Party of any of its obligations under
this Agreement, including any violation or alleged violation by of any applicable
law: and
d. Any damage, liability, fine, penalty, punitive damages, costs or
expenses arising from or out of the presence or existence of any hazardous
OCOLIBI\BN2\I89121.03(41XM31 DOC)
substances in, on or about the Property and/or Adjacent Property, including the
Stockpile Area or any surrounding land arising from the Repair, the Condition or
any Stoneridge Party's acts or omissions with respect thereto, including any
claim, action, suit or proceeding for personal injury (including sickness, disease or
death), tangible or intangible property damage, compensation for lost wages,
business income, profits or other economic loss, damage to the natural resources
or the environment, nuisance, pollution, contamination, leak, spill, release or other
adverse effect upon the environment arising from the act or omission of any
Stoneridge Party in the performance of the Repair.
5. ENFORCEMENT.
a. General. Ladera and the "Successor Ladera" (as that term is
defined below) and their successors alone shall have the right to enforce by proceedings at law or
in equity, all restrictions, conditions, covenants and reservations, now or hereafter imposed by
the provisions of this Declaration or any amendment thereto, including the right to prevent the
violation of any such restrictions, conditions, covenants or reservations and the right to recover
damages or other dues for such violation. Failure by Ladera to enforce any covenant, condition,
or restriction herein contained in any certain instance or on any particular occasion shall not be
deemed a waiver of such right on any future breach of the same or any other covenant, condition
or restriction by Stoneridge Party. All rights, options and remedies of Ladera under this
Declaration are cumulative; and no one of them shall be exclusive of any other; and Ladera shall
have the right to pursue any one or all of such rights, options and remedies or any other remedy
or relief which may be provided by law, whether or not stated in this Declaration.
b. Successor Ladera. Ladera may assign any of its rights and powers
under this Declaration to any other person or entity so long as such person or entity in writing
agrees to assume the duties of Ladera pertaining to the particular rights and powers assigned;
and, upon the recordation of such writing accepting such assignn; -;_, and assuming such duties,
such assignee (the "Successor Ladera"), to the extent of such assignment, shall have the same
rights and powers and be subject to the same obligations and duties as are given to and assumed
by Ladera herein and Ladera shall be released and relieved of such rights and obligations. If and
to the extent specifically assigned in writing as provided in this subsection, the Successor Ladera
shall be a third party beneficiary of this Declaration. Y
6. CAPTIONS. The captions used herein are for convenience only and are
not a part of this Declaration and do not in any way limit or amplify the terms and provisions
hereof.
7. GOVERNING LAW AND VENUE. This Declaration shall be governed
by and construed under the laws of the State of California. In the event of any legal action to
enforce or interpret this Declaration, the sole and exclusive venue shall be a court of competent
jurisdiction located in the County; and Stoneridge Party shall submit to the jurisdiction of such
court.
6
000LIBI\BN2189121.0$41XW31 DOC)
8. ATTORNEYS' FEES. In the event any action shall be instituted in
connection with this Declaration, the party prevailing in such action shall be entitled to recover
from the other party all of its costs and expenses incurred therein, including without limitation
reasonable attorneys' fees.
9. SEVERABILITY. In the event that any portion of this Declaration shall
become illegal, null or void or against public policy, for any reason, or shall be held by any court
of competent jurisdiction to be illegal, null or void or against public policy, the remaining
portions of this Declaration shall not be affected thereby and shall remain in force and effect to
the full extent permissible by law.
10. GENDER AND NUMBER. In this Declaration (unless the context
requires otherwise), the masculine, feminine and neuter genders and the singular and the plural
include one another.
11. COVENANTS TO RUN WITH THE LAND, TERM.
a. Restrictions. The Property made subject to this Declaration from
time to time shall be held, developed, conveyed, hypothecated, encumbered, leased, rented, used
and occupied subject to the Restrictions. The Restrictions are intended and shall be construed as
covenants and conditions running with and binding such portions of the Property and equitable
servitudes thereupon and every part thereof; and all and each of the Restrictions shall be binding
upon and burden all persons having or acquiring any right, title or interest in such portions of the
Property (during their ownership of such interest), or any part thereof, and their successors and
assigns. Subject to the provisions in the immediately following subsection below, the
Restrictions shall inure to the benefit of the Adjacent Property referenced above, the owners
thereof and their successors and assigns; and the Restrictions shall be enforceable by Ladera and
its successors and assigns, all upon the terms, provisions and conditions set forth herein.
b. Term. This Declaration shall continue in full force and effect for a
term of sixty (60) years from the date the same is recorded in the Office of the County Recorder.
C. Termination. Notwithstanding the foregoing:
(1) Reacquired Property. This Declaration, together with the
Restrictions set forth or otherwise incorporated herein, shall, upon recordation in the Office of
the County Recorder of a notice of termination executed by Ladera, automatically terminate and
be of no further force or effect as to any portion of the Property reacquired by Ladera (as to
which Ladera has not assigned its rights and obligations hereunder to a Successor Ladera),
whether by grant deed, lot line adjustment or otherwise, but the Restrictions shall continue to
apply as to the remainder of the Property.
(2) Transferred Property. In the event that any portion of the
Adjacent Property which has been made a benefitted or dominant tenement of this Declaration is
conveyed by Ladera to a third party (each Property thereof so transferred is hereinafter referred
to as a "Transferred Property"), the Restrictions shall cease to benefit such Transferred
0C0LIBI\BNN8912L03(41XM31 o )
Property unless Ladera expressly assigns to the transferee of the Transferred Property the
benefits of all or a portion of the Restrictions, either concurrently with conveyance of the
Transferred Property or at any time thereafter, in either case, by a recorded assignment document
executed by Ladera and specifically referencing this Declaration (and general references to
appurtenances or rights related to the acquired land will not suffice). Any merger of Ladera with
or into another entity or any acquisition of all or a portion of the equity of Ladera by a third party
will not be deemed a transfer of the Adjacent Property subject hereto triggering the applicability
of this subsection.
d. Assignees. Stoneridge Party shall, and shall cause any person or
entity holding any interest in the Property subject hereto by, through or under Stoneridge Party
(including, but not limited to, any trustee, beneficiary or mortgagee under a deed of trust or
mortgage executed by Stoneridge Party and encumbering the Property or any part thereof or
interest therein) to execute or otherwise consent to this Declaration.
12. NOTICES. Any notice to be given or other document to be delivered by
any party to the other or others hereunder, and any payments from Stoneridge Party to Ladera,
may be delivered in person to an officer of any party, or may be delivered by Federal Express,
private commercial delivery or courier service for next business day delivery or may be
deposited in the United States mail in the County of Orange, State of California, duly certified or
registered, return receipt requested, with postage prepaid, and addressed to the party for whom
intended as provided under the Land Transfer Agreement. Notice may also be given by
facsimile transmission ("Fax") to any party at the respective Fax number given above and
marked "RUSH - PLEASE DELIVER IMMEDIATELY," provided receipt of such transmission
shall be confirmed by follow-up notice within seventy-two (72) hours by another method
authorized above. Any party hereto may from time to time, by written notice to the other,
designate a different address which shall be substituted for the one above specified. If any notice
or other doc -ment is sent by mail as aforesaid, the same shall be deemed served or delivered
seventy-two (72) hours atter the mailing thereof as above provided. Notice by any other method
shall be deemed served or delivered upon actual receipt at the address or Fax number listed in the
Land Transfer Agreement.
13. EFFECT OF DECLARATION. This Declaration is made for the
purposes set forth in the Recitals to this Declaration and Ladera makes no warranties or
representations, express or implied, as to the binding effect or enforceability of all or any portion
of this Declaration, or as to the compliance of any of these provisions with public laws,
ordinances and regulations applicable thereto.
14. WAIVER OF JURY TRIAL. LADERA AND STONERIDGE PARTY
HAVE EACH ACKNOWLEDGED THAT IT HAS HAD THE ADVICE OF COUNSEL OF
ITS CHOICE WITH RESPECT TO RIGHTS TO TRIAL BY JURY UNDER THE
CONSTITUTIONS OF THE UNITED STATES AND THE STATE OF CALIFORNIA. BOTH
LADERA AND STONERIDGE PARTY EXPRESSLY AND KNOWINGLY WAIVE AND
RELEASE ALL SUCH RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM BROUGHT BY EITHER PARTY AGAINST THE OTHER ON ANY
OCOLIBI1 N2V8912103(41XW31 DOC)
MATTERS ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS
DECLARATION, STONERIDGE PARTY'S USE OR DEVELOPMENT OF THE
PROPERTY, ADJACENT PROPERTY OR ANY ADJOINING PROPERTY AND/OR ANY
CLAIM FOR INJURY OR DAMAGE.
IN WITNESS WHEREOF, the parties have executed this instrument the day and
year first hereinabove written.
"Ladera"
DMB LADERA, LLC,
a Delaware limited liability company
By: RANCHO MISSION VIEJO, LLC, a
Delaware limited liability company,
its agent and manager
By:
Donald L. Vodra,
Chief Operating Officer
By:
Melissa M. Freese,
Vice President
"Stoneridge Party"
THE CITY OF SAN JUAN CAPIS—RANO,
a Municipal corporation
SC SLIDE, INC., a California non-profit
mutual benefit corporation
0C0LI8I\BNZ189131.03(41XM31 WC)
By:
—
Its:
SC SLIDE, INC., a California non-profit
mutual benefit corporation
0C0LI8I\BNZ189131.03(41XM31 WC)
Exhibit A
Description of the Stoneridge Properties
Gregory & Linda Fryling
29802 Highview Circle
San Juan Capistrano, CA 92675
Lot #47
James and Nancy Scanlon
27351 Silver Creek Dr.
San Juan Capistrano, CA 92675
Lot #50
Charles and Elizabeth Cawthorne
27371 Silver Creek Dr.
San Juan Capistrano, CA 92675
Lot #51
Choon and Kazue Tanaka
27381 Silver Creek Dr.
San Juan Capistrano, CA 92675
Lot #52
John and Angela Heinaman
27391 Silver Creek Dr.
San Juan Capistrano, CA 92675
Lot #53
John and Linda Petersen
27401 Silver Creek Dr.
San Juan Capistrano, CA 92675
Lot #54
Jack and Kay Hockema
San Juan Capistrano, CA 92675
Lot #
Exhibit B
Description of the Property
LEGAL DESCRIPTION
EASEMENT FOR SLOPE REPAIR PURPOSES
A portion of Rancho Mission Viejo in the County of Orange, State of California as shown on a
Record of Survey filed in Book 9, Pages 15 through 25, inclusive, of Record of Surveys, in the office
of the County Recorder of said County, described as follows:
Beginning at a point in the Northeasterly boundary of Tract No. 6381 as shown on a map filed in
Book 433, Pages 5 through 15, inclusive, of Miscellaneous Maps, in the office of said County
Recorder, South 52°57'27" East 60.50 feet along said boundary, from the most Northerly corner of
Lot 47 of said Tract; thence North 37°02'33" East 43.00 feet; thence North 44°01'45" East 102.76
feet; thence North 56°21'04" East 145.17 feet; thence South 71°38'04" East 149.89 feet; thence South
33°40'38" East 181.71 feet; thence South 43°17'03" East 267.81 feet; thence South 52°28'19" East
236.01 feet; thence South 33°42'02" West 137.23 feet; thence South 86°03'43" West 131.14 feet to
said boundary; thence, along said boundary, North 52°5727" West 783.02 feet to the True Point of
Beginning.
As more particularly shown on Exhibit `B" attached hereto and by this reference made a part
hereof.
Rory S. Williams,-L.S. No. 6654
License Expires: December 31, 1999
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Rory S. Williams\ �
Exp. 12/31/99
J� No. 6654
�TFOF CAL�FO�a
September 9, 1999
Page I of I
W.O. 2426-1T
H&A Legal No. 4806
Prepared by: V. Edge
Checked by: R. Williams/tl
4�
EXHIBIT "B°
Sketch to Accompany Legal Description
120
G\�G�-� '-160.50'7'27"E
_ N37°02'33"E
43.00'
102.
l �S3342�02�W
137.23' \_
HUNSAKER & ASSOCIATES EASEMENT FOR
IP. V I N E c
PUNSLOPE REPAIR PURPOSES
PLANNING • ENGINEERING • SURVEYING
Twee 14nho • h., U 91mE •Plc (9,9) 5E3-1010 • FX Iw91 bL]0159 UNINCORPORATED TERRITORY OF THE COUNTY OF ORANGE, STATE OF CALIFORNIA
°AR.9-9-99 o:rc — — — e:` V. Edge er° R. Williams SCALE: 1"= 150' W.O. 2426-1T
F"E. 1:\STONERIDGE\LD\4806\SHT01 .DWG „°L ACAD-MC H&A LEGAL No. 48061 SHEET 1 OF 1
Page 2 of 2
Exhibit C
Description of the Stockpile Area --.-
LEGAL DESCRIPTION
EASEMENT FOR DIRT STOCK PILE PURPOSES
A portion of Rancho Mission Viejo in the County of Orange, State of California as shown on a
Record of Survey filed in Book 9, Pages 15 through 25, inclusive, of Record of Surveys, in the office
of the County Recorder of said County, described as follows:
Commencing at a point in the Northeasterly boundary of Tract No. 6381 as shown on a map filed in
Book 433, Pages 5 through 15, inclusive, of Miscellaneous Maps, in the office of said County
Recorder, South 52057'27" East 60.50 feet along said boundary, from the most Northerly comer of
Lot 47 of said Tract; thence North 37°02'33" East 43.00 feet; thence North 44°01'45" East 102.76
feet; thence North 56°21'04" East 145.17 feet; thence South 71°38'04" East 149.89 feet to the True
Point of Beginning; thence South 33°40'38" East 181.71 feet; thence South 43°17'03" East 267.81
feet; thence South 52°28'19" East 236.01 feet; thence North 88°55'59" East 115.04 feet; thence South
80°49'29" East 98.41 feet; thence North 27°38'06" East 171.30 feet; thence North 53°46'55" West
278.03 feet; thence North 49°02'06" West 175.41 feet; thence North 55°30'09" West 225.22 feet;
thence South 45054'01" West 155.86 feet; thence North 63°53'35" West 121.24 feet to the True Point
of Beginning
As more particularly shown on Exhibit "B" attached hereto and by this reference made a part
hereof.
WAD Si,\
I � S
Rory S, Wdliams, L.S. No. 6654
License Expires: December 31. 1999
Rory S. Williams
Exp. 721310
(p No.6654 \P
\OF CA��FO��
Page 1 of 2
September 9, 1999
Page I of I
W.0.2426 -IT
H&A Leeal No. 4807
Prepared bv: V. Edse
_ EXHIBIT "B"
Sketch to Accompany Legal Description
S52°57'27"E
%160.50'
N37002'33"E
43.00'
'102.76'- T X561!
N44°01'45'E lq5 j��f
®HUNSAKER & ASSOCIATES TEMPORARY EASEMENT
• ' " I ` FOR DIRT STOCK PILE PURPOSES
PUNNING ENGINEERING SURVEYING
Three Nu(ha • Imx, U 93618 • PM: (949) 981W10 •f%: 19.91 5E]-0)59 UNINCORPORATED TERRITORY OF THE COUNTY OF ORANGE, STATE OF CALIFORNIA
°A 9-9-99 o rz - - - e.` V. Edge ey' R. Williams SCALE: 1"= 150' W.O. 2426-1T
"`O :\ST0NERIDCE\LD\4807\SHT0I.DWC „00 ACAD-MC H&A LEGAL No. 48071 SHEET 1 OF 1
Exhibit C Page 2 of 2
WHEN RECORDED, MAIL TO:
Rancho Mission Viejo
P.O. Box 9
San Juan Capistrano, California 92693
(Space Above For Recorder's Use)
OPENSPACE
CONSERVATION EASEMENT
(Ladera Ranch)
DMB LADERA, LLC,
a Delaware limited liability company,
as Grantor
To
THE LADERA LAND CONSERVANCY,
a California non-profit corporation,
as Conservancy
Effective Date: December _ 1998
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1
2.
3.
0
5.
Grant of Conservation Easement.........................................................
a. Policy, Goals & Purpose..........................................................
b. Performance Criteria................................................................
(1) Termination of Corporate Existence ............................
(2) Event of Default...........................................................
C. General Grant...........................................................................
d. Initial Conservation Easement Area ........................................
e. Annexation of Additional Conservation Easement Area.........
General Costs and Liabilities...............................................................
Permitted Use of Conservancy.............................................................
a. Irrigation..................................................................................
b. Access......................................................................................
(1) Enforce.........................................................................
(2) Observe........................................................................
(3) Routes..........................................................................
(4) Interference..................................................................
c Protect E-;,oin & Restore
1M
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4
, .......................................................................................
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E, ................................................................................................................ 7
(1) Resource Management Plan ........................................................................ 7
M. Signage....................................................................................................................7
n. Additional Easements and Rights........................................................................... 7
d.
Enforce .............................
e.
Construct Fencing............
f.
Construct Improvements..
(1) Approval ......................................................................
(2) No Interference............................................................
Approvals; Compliance.......................................................................
a. Licenses & Permits..................................................................
b. Laws........................................................................................
Enumerated Reserved Uses of Grantor ................................................
a. Roads........................................................................................
b. Grazing.....................................................................................
C. Utilities; Public Improvements ...............................................
d. Existing Easements..................................................................
e. Flood Control..........................................................................,
f. Hiking and Riding Trails.........................................................
g. Prescribed Fires; Access..........................................................
h. Community Events.................................................................
i. Scientific Research..................................................................
j. Grading...................................................................................
k. Communication.......................................................................
I Miti ation
C:\windows\TEMP VjtP06!.dm
OPEN SPACE
CONSERVATION EASEMENT
(Ladera Ranch)
THIS OPEN SPACE CONSERVATION EASEMENT (the "Easement") is made
and entered into as of the _day of December, 1998, by DMB LADERA, LLC, a Delaware
limited liability company ("Grantor"), and THE LADERA LAND CONSERVANCY, a
California non-profit corporation ("Conservancy").
THE PARTIES ENTER INTO THIS EASEMENT based upon the following
facts, understandings and intentions:
A. Grantor and the County of Orange ("County") entered into (i) that certain
Ladera Development Agreement dated December 3, 1996, which was recorded in the official
records of the County of Orange on January 17, 1997, as Instrument Number 19970027386
("Development Agreement") and (ii) that certain Regional Open Space Agreement dated June
12, 1998 ("Open Space Agreement") in furtherance and implementation of the requirements of
the Development Agreement.
B. Grantor is the owner and master developer of certain real property (the
"Project") in Orange County, California, which is subject to the Development Agreement; and,
in accordance therewith, certain areas of such real property established in accordance with the
Open Space Agreement and described below or otherwise hereafter annexed and made subject
hereto (collectively, the "Conservation Easement Area) have been designated for, among other
uses, open space, conservation and related uses as more particularly described in this Easement.
C. Conservancy has been organized to preserve and enhance natural areas for
aesthetic, scientific, charitable and educational purposes; and Conservancy is qualified under
California Civil Code Section 815.3 to acquire and hold conservation easements.
D. The Conservation Easement Area is currently in a substantially
undisturbed and natural state and has significant ecological, scientific and aesthetic value and
provides significant, relatively natural habitat for plants and wildlife.
E. The Conservation Easement Area is comprised of lands formerly a part of
the Rancho Mission Viejo and which are managed by Rancho Mission Viejo, LLC, a Delaware
limited liability company ("RMV").
F. The Conservation Easement Area's natural elements, ecological, scientific
and aesthetic values are (i) of great importance to the people of the State of California, the people
of the County of Orange, Grantor, Conservancy and RMV and (ii) are worthy of protection and
preservation.
G. Grantor owns and wishes to convey the rights to preserve and protect in
perpetuity the natural ecosystems, natural elements and the great scientific and aesthetic values
of the Conservation Easement Area.
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H. This Easement has been reviewed and approved by County as satisfying
Exhibit D (Table D-1 and Section II) and Exhibit F (Section 4, GPA 9) of the Development
Agreement, together with associated Land Use Element (LUE), zoning and General Plan
Amendment (GPA) Condition of Approval 9, and the requirements of the Open Space
Agreement with respect to the subject matter thereof.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt of which is hereby acknowledged, and
pursuant to the laws of the State of California and, in particular, Section 815 et.seq. of the
California Civil Code, Grantor hereby grants and conveys to Conservancy, its successors and
assigns forever, a perpetual, irrevocable conservation easement in gross over and across the
Conservation Easement Area in accordance with the terms and conditions hereafter set forth:
Grant of Conservation Easement.
a. Policy. Goals & Purpose. The parties desire and intend that (i) the
Conservation Easement Area's ecological elements and scientific and aesthetic features and
values be preserved and maintained in perpetuity by the continuation of such uses in the
Conservation Easement Area as may be conducted consistent with the conservation values
protected herein and otherwise consistent with the Southern Subregion Natural Communities
Conservation Plan ("NCCP") or, in the absence thereof, a Habitat Conservation Plan ("HCP"),
(ii) the existing conservation values of the Conservation Easement Area be preserved and
maintained by the continuation of land use. patterns that do not significantly impair or interfere
with the conservation and related uses more particularly described and permitted herein and (iii)
the Conservation Easement Area shall be retained forever in an open space condition (subject to
the uses permitted under this Easement) and to prevent any use of the Conservation Easement
Area that will impair or interfere with the conservation values of the Conservation Easement
Area.
o. Performance Criteria. For purposes of determining whether
Conservancy is satisfying the policy, goals and purpose of this Easement, the occurrence of any
of the following conditions shall be deemed a material default by Conservancy hereunder:
(1) Termination of Corporate Existence. The termination of
Conservancy's corporate existence by any of the following methods and the failure of
Conservancy to assign this Easement and the rights granted to Conservancy hereunder either (i)
to another corporation which has been organized to preserve and enhance natural areas for
aesthetic, scientific, charitable and educational purposes and is qualified under California Civil
Code Section 815.3 or is otherwise legally permitted to acquire and hold conservation easements
or (ii) in accordance with Section 14 of this Easement:
(a) VoluntaQE Dissolution. Voluntary dissolution
evidenced by either (i) the filing of a certificate of dissolution pursuant to California
Corporations Code Section 6615 or (ii) a superior court order declaring the Conservancy wound -
up and dissolved pursuant to California Corporations Code Section 6617; or
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(b) Involuntary Dissolution. Involuntary dissolution
evidenced by a superior court order declaring the Conservancy wound -up and dissolved pursuant
to California Corporations Code Section 6518; or
(2) Event of Default. The existence of any of the following
conditions which is not cured within ninety (90) days following service upon each of the
Conservancy directors of written notice from the County that such condition exists:
(a) Insolvencv. The Conservancy shall be or otherwise
be deemed insolvent;
(b) Failure of Board to Meet. The repeated failure of
the Board of Directors of Conservancy to meet following a call made in accordance with the
bylaws of Conservancy; or
(c) Policy. Goals & Purpose. The failure of
Conservancy to comply with the NCCP or, in the absence thereof, a HCP or, in the absence
thereof, this Easement, including to identify, preserve, manage and protect in perpetuity and to
restore the open space and significant, relatively natural, ecological features and values of the
Conservation Easement Area.
C. General Grant. Grantor hereby conveys and grants to Conservancy
a non-exclusive easement and right to use the surface of the Conservation Easement Area for the
"Permitted Use" (as hereafter defined): provided, the use of the surface of the Conservation
Easement Area for the Permitted Use is the exclusive use by Conservancy of this Easement and
the Conservation Easement Area; and, in addition to the specific rights reserved to Grantor
hereunder and specifically with respect to the subsurface of the property comprising the
Conservation Easement Area, Grantor retains the right to reasonable access to and use thereof so
long as Grantor's exercise of such retained and reserved rights does not materially disturb,
disrupt or interfere ,v ith the Permitted Use
d. Initial Conservation Easement Area. The initial Conservation
Easement Area is more particularly described on Exhibit A attached hereto and incorporated
herein by this reference.
C. Annexation of Additional Conservation Easement Area. All or any
part of the property designated as, or otherwise determined to be, Conservation Easement Area in
accordance with the Open Space Agreement shall be annexed to and become subject to this
Easement without the approval, assent or vote of Conservancy; provided, a spreader of easement
covering the portion of the property to be annexed (and which shall subject such additional property
then being annexed to the terms, covenants and conditions of this Easement) shall be executed and
recorded by Grantor. The recordation of said spreader of easement shall constitute and effectuate
the annexation of the said property described therein, malting said property subject to this Easement;
and, thereafter, said annexed property shall be part of the Conservation Easement Area. For
purposes of this Easement, a spreader of easement shall be a writing in recordable form which
annexes property to the burdens and covenants of this Easement and which incorporates by
reference all of the covenants, conditions, restrictions and other provisions of this Easement without
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'two r
any approval or other action by or of any other party. In no event, however, shall any such spreader
of easement revoke, modify or add to the covenants established by this Easement with respect to the
existing property then subject hereto. Nothing provided herein shall in any way obligate Grantor to
annex any property to this Easement or to impose any similar or dissimilar covenants, conditions or
restrictions on any of its other property, and such other property shall not become part of the
Conservation Easement Area which is subject to this Easement unless and until Grantor shall have
recorded a spreader of easement as aforesaid.
2. General Costs and Liabilities. Conservancy shall have all responsibility
and shall bear all costs and liabilities of any kind related to the ownership of this Easement and
the operation, maintenance and use of the Conservation Easement Area by Conservancy in
accordance with this Easement.
3. Permitted Use of Conservancy. Conservancy (and no other entity, person
or organization) shall identify, preserve, manage and protect in perpetuity and restore the open
space and significant, relatively natural, ecological features and values of the Conservation
Easement Area in accordance with the NCCP or, in the absence thereof, a HCP or, in the absence
thereof, this Easement; and Conservancy shall have the following rights which shall be exercised
in accordance with this Easement so long as the same shall be consistent with the NCCP or, in
the absence thereof, a HCP, and any applicable governmental laws, ordinances, statutes, orders
and regulations with respect thereto (the "Pem3itted Use"):
a. Irrigatio . To irrigate the surface of the Conservation Easement
Area relative to restoration activities, revegetation and conservation of natural resource values.
b. Access. To enter upon the Conservation Easement Area for the
following purposes and subject to the following limitations:
(1) Enforee. To enforce the rights herein granted;
(2) Obserye. To generally observe, study and make scientific
observations of the Conservation Easement Area ecosystem;
(3) Routes. Access shall be by means of existing roads and
trails or other routes and access points as may be reasonably approved by Grantor and RMV
from time to time; and
(4) Interference. Access shall not unreasonably interfere with
the purpose and intent of this Easement.
C. Protect. Enjoin & Restore. To determine whether the use of the
Conservation Easement Area is in compliance with the terms of this Easement and, if not, to seek
to protect the Conservation Easement Area and/or otherwise enjoin any activity on, or use of, the
Conservation Easement Area which is inconsistent with the provisions of this Easement.
d. Enforce. To enforce the terms and provisions of this Easement
which are for the benefit of the Conservancy and/or the protection and preservation of the
Conservation Easement Area in accordance with this Easement, including to restore such areas
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4
or features of the Conservation Easement Area as may be damaged by activities which are
prohibited hereunder.
e. Construct Fencine. To construct and install fencing as may be
necessary to protect areas of scientific research from environmental degradation.
f. Construct Improvements. To construct such improvements as may
be necessary to protect the conservation values or maintain the resources protected by this
Easement so long as:
(1) Approval. Conservancy has received Grantor's prior
written approval for such improvements, which shall not be unreasonably withheld or delayed;
and
(2) No Interference. Such improvements do not interfere with
Grantor's continued use of the Conservation Easement Area (which uses shall not be inconsistent
with the uses required or permitted hereunder).
4. Approvals: Compliance. Conservancy's use of the Conservation Easement
Area shall be conditioned upon Conservancy, at its sole cost and expense:
a. Licenses & Permits. Maintaining all necessary licenses and/or
permits from all appropriate public and/or governmental agencies with respect to the Permitted
Use; and
b. Laws. Complying with each and every federal, state or local law,
regulation, standard, decision of court, ordinance, rule, code, order, decree, directive, guideline,
permit or permit condition, together with any declaration of covenants, conditions and
restrictions which have been recorded in any official or public records with respect to the
Conservation Easement Arc,. , _ any p:.-' - )n thereof, each as currently existing and as amended,
enacted, issued or adopted in the future which are or become applicable to the Conservation
Easement Area and/or the property underlying or otherwise subject to the same.
5. Enumerated Reserved Uses of Grantor. The following specific rights, uses
and practices ("Enumerated Reserved Uses"), though not an exhaustive recital of consistent uses
and practices permitted and reserved by Grantor, are specifically reserved by Grantor from the
grant of this Easement; and these rights, uses and practices, as well as all others which do not
unreasonably interfere with this Easement, shall not be precluded, prevented or otherwise limited
only so long as the same shall be consistent with the NCCP or, in the absence thereof, a HCP or,
in the absence thereof, this Easement, together with any applicable governmental laws,
ordinances, statutes, orders and regulations with respect thereto: _
a. Roads. To maintain, repair and/or replace public and privately
owned and maintained trails and roads in the Conservation Easement Area.
b. Wig. Livestock grazing in accordance with a grazing
management plan approved by the Director of the Planning and Development Services
Department of the County in consultation with the Director of the Public Facilities and
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Resources Department of the County prior to any grazing activities in the Conservation
Easement Area.
C. Utilities• Public Improvements. To grant, and otherwise determine
the location of, utilities and public improvements within existing and/or new easements,
including, but not be limited to, for above -ground and below -ground electrical transmission
facilities, fuel and gas pipeline facilities, water, water reservoirs and pipelines, sewer, telephone,
video and data transmission, cable television and other uses and other pipelines and appurtenant
facilities, in one or more consolidated utilities corridors (consistent with such utilities to the
extent practical), maintenance of and access to such facilities and roads on and across the
Conservation Easement Area as may be necessary to serve land within or outside the
Conservation Easement Area but only so long as the same shall be consistent with this
Easement and the NCCP or, in the absence thereof, a HCP and any applicable governmental
laws, ordinances, statutes, orders and regulations with respect thereto as reasonably reviewed,
approved and determined by the Conservancy (as a condition and prior to any such grant
thereof), including that the same do not conflict with the permitted mitigation areas.
d. Existine Easements. To continue the use of the Conservation
Easement Area for purposes of any easements of record prior to the date such underlying
property comprising the same was annexed to or otherwise made subject to this Easement,
including, without limitation, to consolidate and/or relocate any such easements into one or more
utility corridors.
e. Flood Control. To locate and maintain flood control and ancillary
and appurtenant facilities.
f. Hiking and Riding Trails. To construct and/or maintain, or
otherwise permit the same, one or more regional and/or community hiking and/or equestrian
trails in accordance with the Development Agreement and the Open Space Agreements, any and
all of which shall have rights which are superior and senior to any and all rights under this
Easement.
g. Prescribed Fires; Access. To conduct prescribed fires in
accordance with the requirements, direction, authorization or recommendation of the local fire
authority for purposes of the health and/or safety of surrounding properties and populations
and/or otherwise in order to further the intentions of this Easement and otherwise to have any
and all access to the Conservation Easement Area in order to fight or otherwise mitigate fires.
h. Community Events. To hold and otherwise conduct community
events which are consistent with goals and objectives of this Easement or are not otherwise
inconsistent with the other uses permitted and/or reserved hereunder.
i. Scientific Research. To conduct scientific research;
j. Gradine. To perform remedial grading with revegetated slopes
utilizing native species;
C:\windows\TEMP'3jtp06!.dm
k. Communication. To locate, operate and maintain (and to grant
such rights to any and all third parties) communication facilities;
1. Mitigation. Grantor (or any member or partner thereof or any
person or party affiliated therewith or any member or partner thereof) shall have the right to
satisfy the requirements of any public agency in regards to environmental, geological,
hydrological, archaeological, paleontological and/or any other environmental or similar land use
related mitigation and/or restoration measures, commitments and conditions (collectively,
"Mitigation Actions") with respect to the development of the Project (including any projects
undertaken by the County in accordance with the Development Agreement or otherwise pursuant
to an agreement with Grantor in order to satisfy the requirements or conditions of the
Development Agreement) and/or any other land and/or area commonly referred to as the Rancho
Mission Viejo or any portion thereof (whether or not related to the Development Agreement) by
means of actions, or other encumbrances upon the Conservation Easement Area (and any and all
other such mitigation measures and activities may so burden the Conservation Easement Area)
so long as the same are not inconsistent with the Enumerated Reserved Uses, the goals and
policies of this Easement and either the NCCP or an HCP;
(1) Resource Management Plan. The requirements of the
Resource Management Plan, including the need for on-site monitoring confirmation studies,
shall be accommodated within the Conservation Easement Area;
in. Signage. To place or locate temporary signage appurtenant to the
Project and which is within 30 feet of curbs or other road improvements and is otherwise in
accordance with a County -approved signage program;
n. Additional Easements and Rights. To grant or permit additional
easements, licenses or other rights over, on or through the Conservation Easement Area and the
property underlying or otherwise subject to the same provided, however, that any such future
grant or permission shall not unreasonably :..wrfere with the Permitted Use on the Conservation
Easement Area and otherwise only so long as the same shall be consistent with this Easement
and the NCCP or, in the absence thereof, a HCP and any applicable governmental laws,
ordinances, statutes, orders and regulations with respect thereto as reasonably reviewed,
approved and determined by the Conservancy (as a condition and prior to any such grant
thereof); and
o. Other. Any and all such other uses which are consistent with the
Enumerated Reserved Uses, this Easement and as otherwise approved by the Conservancy.
6. General Limitation on Permitted Use. This Easement and the rights
granted hereunder are limited solely to the Permitted Use; and Grantor reserves any and all other
rights to use the Conservation Easement Area so long as such use will not unreasonably interfere
with or otherwise prohibit the Permitted Use and is not otherwise prohibited hereunder.
7. Limitations on Public Use. No use of the Conservation Easement Area by
the general public is authorized by this Easement; and any and all such general public use shall
be limited to the use of the regional and community hiking and/or riding trails which are
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described on recorded easements or other public record documents unless such use is with the
express prior written consent, and otherwise subject to the supervision, of the Conservancy and
within the boundaries of specified hiking and/or riding trails delineated and described as such.
Neither Grantor nor Conservancy shall encourage or permit the general public to use or enter
upon the Conservation Easement Area except as expressly provided herein. For purposes hereof,
the term "general public" shall not include persons accompanied by either Grantor or
Conservancy, or any of their employees, agents, representatives, contractors or subcontractors,
entering onto the Conservation Easement Area for, respectively, any reserved use (as to Grantor)
or any Permitted Use (as to Conservancy).
8. Specific Prohibited Uses on Conservation Easement Area. The following
uses and practices on the Conservation Easement Area are inconsistent with the purposes of this
Easement and shall be prohibited unless upon the unanimous written consent of Grantor,
Conservancy, RMV and County (as determined by the Director of Planning and Development
Services in consultation with the Director of Public Facilities and Resources Department):
a. Commercial Crops; Exotic Species. Planting of commercial
agricultural crops or the conversion of native vegetation to new or exotic species.
or animal species.
b. Non -Native Plants and Animals. Introduction of non-native plant
C. Hunting or Trapping. Hunting or trapping.
d. Commercial Use. Commercial, retail or industrial development;
e. Farming. Plowing, drilling seed or any other farming activity
which would disturb the soil surface.
f. Trash. Dumping & Ihzardous Materials Storage. Dumping of
ashes, trash, garbage or other unsightly, offensive or toxic material or the storage or use of
biocides and agricultural chemicals except as such biocides and/or chemicals may be necessary
to protect the native vegetation which is of conservation value and threatened by the invasion of
exotic material from outside the Conservation Easement Area.
g. Topgmphy Changes. Changing of the topography through the
placing of soil, dredging soils, landfill or other material, including filling, excavating, dredging,
mining, drilling or removal of topsoil, sand, gravel, rock, minerals or other materials unless the
same is ancillary to or otherwise defined as an Enumerated Reserved Use.
9. Liens. Conservancy shall not permit to exist or otherwise to be enforced
against the Conservation Easement Area and/or the property underlying or otherwise subject to
the same any mechanics', materialmen's, contractors' or other liens arising out of the acts or
omissions of Conservancy; and Conservancy shall promptly pay or cause to be paid all of such
liens, claims or demands related thereto before any action is brought to enforce the same.
10. Taxes. Grantor agrees to pay any and all real property taxes and
assessments levied by competent authority on the fee interest of the Conservation Easement
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Area; provided, Grantor shall have no obligation to pay any taxes or assessments which may be
levied against this Easement itself and Conservancy shall pay ,on or before delinquency, any and
all real property taxes and assessments (including any fees or amounts in lieu of real estate taxes
and assessments) and other governmental charges, general and special, ordinary and
extraordinary, unforeseen as well as foreseen, which are assessed, levied, confirmed, imposed or
become a lien against or upon this Easement and/or the Conservation Easement Area as a result
of this Easement, the Permitted Use and/or any improvements constructed or developed on the
Conservation Easement Area by Conservancy.
11. Insurance. Conservancy shall maintain comprehensive general liability
insurance, including automobile coverage and blanket contractual liability coverage, with respect
to the Conservation Easement Area, ingress to and egress therefrom and the activities of or on
behalf of Conservancy on or about the Conservation Easement Area, including personal injury
and property damage for not less than One Million Dollars ($1,000,000) combined single limit
bodily injury, death and property damage liability per occurrence, or the current limit of liability
carried, whichever is greater, and worker's compensation insurance to protect Conservancy and
Grantor (together with its agent) from any claim made or action brought by any person or entity
arising out of or related to Conservancy's use of the Conservation Easement Area or arising out
of or connected in any way with the acts of Conservancy or any other person claiming any
interest or right through or under Conservancy undertaken pursuant to this easement.
Conservancy shall provide that the policy or policies of insurance shall be primary and shall
name Grantor (together with its agent) as an additional insured, with the provision that any other
insurance carried by Grantor (and its agent) shall be noncontributing and shall waive all rights of
subrogation. Prior to entering upon the Conservation Easement Area, Conservancy shall famish
Grantor with a Certificate of Insurance and Additional Insured Endorsement as evidence of such
policy or policies. Both the Certificate of Insurance and Additional Insured Endorsement shall
name Grantor (together with its agent) as additional insureds and contain language that
specifically states that each policy or policies of Comprehensive or Commercial General
Liability Insurance shall be primary and noncont�'buting with any insurance carried by Grantor
(and its agent).
12. Remedies. In addition to any and all other remedies available at law or in
equity, the following remedies shall be available:
a. Conservancy: Notice of Violation. If Conservancy determines
that Grantor or any other person or party is in violation of this Easement with respect to the
Conservation Easement Area or that a violation is threatened on the Conservation Easement
Area, Conservancy shall give written notice to Grantor (or such other party) thereof and request
action sufficient to cure or prevent the violation and, where such violation involves injury to an
area resulting from any use or activity inconsistent with the provisions of this Easement, to
restore the protection or condition of the area so injured. — -
b. Cure by Conservancy. If Grantor (or such other party) fails to cure
the violation within thirty (30) days after receipt of notice thereof (or, if such violation cannot be
cured within such time, if such party fails to begin curing the same within the aforesaid thirty
(30) day period and thereafter fails to continue diligently to cure such violation until finally
cured), Conservancy may:
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(1) Action to Enforce. Bring an action in law to enforce the
restoration of that portion of the Conservation Easement Area affected by such activity to the
condition that existed prior to the undertaking of such unauthorized activity; and/or
(2) Restoration. Enter upon the Conservation Easement Area
and restore that portion thereof affected by such activity to the condition that existed prior to the
undertaking of such activity; provided, such action by Conservancy shall not prejudice any
subsequent judicial proceeding nor shall such improvement preclude Conservancy from
obtaining reimbursement for the restoration costs.
C. Enforcement by Grantor. Grantor, any "Successor Grantors" (as
defined below) and their successors shall have the right to enforce by proceedings at law or in
equity, all restrictions, conditions, covenants and reservations, now or hereafter imposed by the
provisions of this Easement or any amendment thereto, including the right to specific enforcement
and otherwise to prevent the violation of any such restrictions, conditions, covenants or conditions
and any right to be indemnified hereunder (in accordance with the terms and conditions hereof);
provided, Grantor shall not have the right to terminate this Easement. Grantor may assign any of its
rights and powers under this Easement to any other person or entity so long as such person or entity
in writing agrees to assume the duties of Grantor pertaining to the particular rights and powers
assigned; and, upon the recordation of such writing accepting such assignment and assuming such
duties, such assignee (the "Successor Grantor"), to the extent of such assignment, shall have the
same rights and powers and be subject to the same obligations and duties as are given to and
assumed by Grantor herein and Grantor shall be released and relieved of such rights and obligations.
13. Notices.
a. DeliverX. Any notice called for, required or delivered under this
Easement shall be sent by hand delivery or by registered or certified US mail to the address set
forth below; provided, any such address may be changed to such other address as such party may
inform the other of from time to time in writing; and notice shall be deemed to be received on the
date evidenced by hand delivery, registered mail or certified mail receipt:
Grantor: DMB Ladera, LLC
c/o Rancho Mission Viejo, LLC
P.O. Box 9
San Juan Capistrano, California 92693
Conservancy: The Ladera Land Conservancy
c/o Rancho Mission Viejo, LLC
P.O. Box 9
San Juan Capistrano, California 92693
RMV: Rancho Mission Viejo, LLC
P.O. Box 9
San Juan Capistrano, California 92693
County: Director
Planning and Development Services Department
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P.O. Box 4048
Santa Ana, California 92702
and
Director
Public Facilities and Resources Department
P.O. Box 4048
Santa Ana, California 92702
b. Notice of Request. Whenever express agreement, consent or other
action is required, desired or requested under the terms and conditions of this Easement by or
from Grantor, Conservancy, County, RMV or any other person or party, the initiating party shall
give written notice and detailed information to the other party by registered or certified mail.
The receiving party shall have thirty (30) days from the receipt of such first notice to review the
proposed activity and to notify the initiating party of any objections thereto; provided, (i) upon
the failure of the initiating party to receive any response thereto from the party to whom such
notice was directed within such thirty (30) days of the forwarding of said first notice, then such
initiating party shall thereafter give a second written notice (which shall contain the same
information as the first such notice — or otherwise include the first such notice -- and state that
the same is the second such notice) and (ii) the failure of such party to whom said notice was
directed to object to any of the terms and/or conditions provided therein within thirty (30) days
of the forwarding of said second notice shall constitute consent to the proposed activity. No
agreement or consent with respect thereto shall be unreasonably withheld, conditioned or
delayed; and any objections to activities proposed by such notice shall be set forth in a written
response to any such notice. Permission to carry out, or failure to object to, any proposed use or
activity shall not constitute consent for any subsequent use or activity of the same or a different
nature.
14. Assignment. This Easement and the rights granted to Conservancy
hereunder are "easements in gross" and are therefore personal to Conservancy; and the same are
not assignable and may not be assigned to any person, entity or governmental body without
Grantor's prior written consent (which may be withheld in Grantor's sole discretion); provided,
(i) Conservancy may assign this Easement and the rights and obligations hereunder to a regional
conservation plan entity or to any entity in conformance with an NCCP-approved plan of
conservation with Grantor's reasonable consent and (ii) in the event that Conservancy dissolves
and if Conservancy fails to assign the same to a regional conservation plan entity or to any entity
in conformance with an NCCP-approved plan of conservation or to offer this Easement to
County, this Easement shall thereupon become the property of and vested in County without the
necessity of recording any further instrument of conveyance so long as County accepts the same
in a written instrument. — -
15. Indemnity. Conservancy shall save, indemnify and hold harmless Grantor
(and all of their officers, directors, stockholders, partners, members, agents, representatives,
managers and employees, including RMV) against any liability, loss, cost, damage and expense
caused by or arising from (i) an act(s) or omission(s) of Conservancy, its employees, agents,
contractors, licensees, permitees, successors and assigns, (ii) the construction, location and
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existence of any improvements owned by Conservancy, whether defective or otherwise,
including, but not limited to, any loss, cost, damage, liability and expense arising from damage to
or destruction of injury to or death of any person and/or (iii) any exercise of the Permitted Use by
or on behalf of or otherwise derived from Conservancy.
16. Condemnation. In the event of any condemnation or sale of the
Conservation Easement Area or any property encumbered thereby or otherwise subject thereto,
Grantor shall be entitled to all of the condemnation proceeds attributable thereto or otherwise
arising therefrom.
a. General. Grantor may transfer its fee interest in the property
encumbered by or otherwise subject to this Easement, by sale, assignment or otherwise, in the
sole and absolute discretion of Grantor, including, without limitation, to any entity in
conformance with an NCCP-approved plan of conservation.
b. Transfer to Conservancy. To the extent permitted by applicable
law, Grantor shall have the right to quitclaim to Conservancy the fee interest in the property
encumbered by or otherwise subject to this Easement (and otherwise in a manner to preserve the
policies, covenants, conditions and protections of this Easement) while concurrently reserving
easements and such other then -existing interests in order to continue existing uses permitted to
Grantor hereunder.
C. Transfer to County. In the event that Conservancy is in material
default under the terms and conditions of this Easement as set forth under Section 1.b of this
Easement on or after the date which is twenty (20) years after the date the Development
Agreement was first recorded, then the County shall have the right to cause Grantor and
Conservancy to transfer fee title and all right, title and interest under this Easement to the County
for tho- c portions of the Conservation Easement Are:. over which this Easement has been
recorded and otherwise such that the condition of title to such property shall be acceptable to the
Director, Public Facilities and Resources Department and shall be delivered subject only to such
title exceptions and encumbrances which are consistent with the Enumerated Reserved Rights,
the NCCP or, in the absence thereof, an HCP.
d. Credits and Mitigation Rights. Except as previously granted to
County for purposes of mitigating the impacts of the construction of Antonio Parkway, Grantor
may transfer, by sale, assignment or otherwise, in the sole discretion of Grantor, any credits or
similar rights associated with the property encumbered by or otherwise subject to this Easement
in order to offset impacts of development under Federal, State and/or local endangered species or
similar laws and/or regulations or otherwise to satisfy any Mitigation Action so long as the same
does not materially interfere with the Permitted Use and is otherwise in compliance with Section
5.1 of this Easement. Unless otherwise provided under a NCCP-approved plan of conservation
enacted subsequent to the date hereof with respect to all or any portion of the Conservation
Easement Area expressly applicable thereto, Grantor shall have the exclusive right to determine
the price and any other consideration or conditions concerning any such transfer and shall be
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entitled to all such consideration derived or otherwise arising therefrom (and Conservancy shall
not be entitle to any portion of the same).
18. Covenant Running With Land. The easements and covenants contained
herein are (i) imposed upon the property encumbered by or otherwise subject to this Easement,
(ii) shall run with and against the same and shall be a charge and burden thereon for the benefit
of Conservancy and/or the current holder of this Easement and (iii) are perpetual and irrevocable.
19. Waiver of Jury Trial. THE PARTIES HERETO EXPRESSLY AND
KNOWINGLY WAIVE AND RELEASE ALL SUCH RIGHTS TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY PARTY AGAINST
THE OTHER ON ANY MATTERS ARISING OUT OF OR IN ANY WAY CONNECTED
WITH THIS EASEMENT, THE USE OF THE OPEN SPACE EASEMENT AREA OR ANY
ADJOINING PROPERTY AND/OR ANY CLAIM FOR INJURY OR DAMAGE WITH
RESPECT THERETO.
20. No Rights in General Public. Nothing herein contained shall be deemed to
be a gift or dedication of any portion of the Conservation Easement Area or any of the property
encumbered thereby or otherwise subject thereto to or for the general public; and the parties
hereto and any other entity otherwise obtaining any interest herein acknowledge the intention
that this Easement shall be strictly limited to and for the purposes herein set forth.
21. Amendment Inconsistency. Except as expressly hereinafter provided, this
Easement may be modified only by written instrument executed by the record owner of the
property encumbered hereby, the then -holder of this Easement and County (as determined by the
Director of Planning and Development Services in consultation with the Director of Public
Facilities and Resources Department) and, in each event, provided that such modification is
otherwise consistent with the terms, policies and goals hereof. Notwithstanding the foregoing
to the contrary, Grantor shall have the unilateral right (without the consent or approval of
any party, beneficiary or other person) to amend or otherwise revise this Easement (except
for Section 17.c hereof) in order to conform the same, or otherwise to be consistent, with
the NCCP or, in the absence thereof, a HCP: and, in the event of any inconsistency between
this Easement and the NCCP, the NCCP (or, in the absence thereof, a HCP) shall control.
22. Miscellaneous. This Easement shall be binding on the successors, assigns
and legal representatives of each of the parties hereto. This Easement represents the entire
agreement between the parties hereto and supersedes all prior negotiations, representations or
agreements, either written or oral. Time is of the essence of each provision of this Easement.
This Easement shall be governed by and construed in accordance with the laws of the State of
California. If any suit or action is brought to enforce or construe any provision of this Easement,
the prevailing party shall be entitled to recover its costs and expenses arising out of such
litigation, including attorneys' fees and court costs, from the non -prevailing party; and each party
hereto waives any and all rights to a trial by jury with respect to any dispute or action hereunder
or otherwise to enforce or construe this casement. No delay on the part of any party hereto in
exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any
waiver on the part of any party hereto of any right, power or privilege hereunder operate as a
waiver of any other right, power or privilege hereunder, nor shall any single or partial exercise of
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any right, power or privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder. If any provision of this Easement or
the application of any such provision shall be held by a court of competent jurisdiction to be
invalid, void or unenforceable to any extent, the remaining provisions of this Easement and the
application thereof shall remain in full force and effect and shall not be affected, impaired or
invalidated. This Easement may be executed in two or more counterparts, which shall, in the
aggregate, be deemed executed by all parties.
23. Third Party Beneficiarv. The County shall be deemed, and is hereby, a
third party beneficiary of this Easement.
IN WITNESS WHEREOF, Grantor and Conservancy have executed this
Easement as of the _ day of December, 1998.
"Grantor"
DMB LADERA, LLC,
a Delaware limited liability company
By: Rancho Mission Viejo, LLC,
a Delaware limited liability company,
as agent and manager
By:
Donald L. odra,
r in ficer
i2
By:
Richard Broming,
Vice P,..:ident
"Conservancy"
THE LADERA LAND CONSERVANCY,
a
B
B
APPROVED AS TO FORM:
Thomas 13. Mathews,
Director, Planning and Development Services Department,
County of Orange
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STATE OF CALIFORNIA
COUNTY OF ORANGE
On NOVEMBER 23, 1998 before me, TINA T. BAKER, Notary Public, personally
appeared RICHARD BROMING and TOM STALEY, personally known to me to be the
persons 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 persons, or the entity upon behalf of which the persons acted, executed the
instrument.
WITNESS my hand and official seal.
Signature of Notary
STATE OF CALIFORNIA
COUNTY OF ORANGE
On NOVEMBER 23, 1998 before me, TINA T. BAKER, Notary Public, personally
appeared DONALD L. VODRA and RICHARD BROMING, personally known to me to be
the persons 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 persons, or the entity upon behalf of which the persons acted, executed the
instrument.
WITNESS my hand and official seal.
Signature of Notary
I
HUIT ZOLLARS
Huitl-Zellars, Inc. 115101 Red Hill Avenue/ Tustin. California 92780-6500/ Phone (714) 259-7900/Fax (714) 259-0210
10-0367-10(A)
10-01-98
Revised
11-16-98
LADERA OPEN SPACE DEDICATION
PHASE 1
Those portions of Parcel 2 of Lot Line Adjustment LL 96-026, in the Unincorporated Territory of
the County of Orange, State of California, recorded November 21, 1996 as Instrument No.
19960587414 of Official Records in the office of the County Recorder of said County, described
as follows:
Parcel A:
Beginning at the Northeasterly corner of said Parcel 2; thence along the Westerly line of said
Parcel 2, the following courses: South 18°37'25" West 430.00 feet, South 13°50'25" East
1495.51 feet, South 32°41'47" West 766.05 feet, and South 25050'45" East 711.76 feet; thence
leaving said Westerly line South 86°08'33" West 494,77 feet to the general Easterly line of Parcel
1 of said Lot Line Adjustment LL 96-026, said point being the beginning of a non -tangent curve
concave Northerly having a radius of 3000.00 feet, a radial line of said curve to said point bears
North 7015'58" West; thence along said general Easterly line, the following courses: Westerly
243.64 feet through a central angle of 4°39'11", North 5001'10" West 1323.46 feet, and South
74°04'22" West 834.44 feet to the Easterly right of way of Antonio Parkway as described in that
certain document recorded April 30, 1998 as Instrument No. 19980260407 of said official
records, said point being the beginning of a non -tangent curve concave Southwesterly having a
radius of 2162.00 "__, ; radial line of said curve to said point bears North 65°56'17" East; thence
along said Easterly right of way of Antonio Parkway, the following courses: Northwesterly
730.50 feet along said curve through a central angle of 19°21'33", North 43°25'16" West 400.00
feet to the beginning of a tangent curve concave Northeasterly having a radius of 1738.00 feet,
and Northerly 1689.32 feet along said curve through a central angle of 55°41'27" to the Northerly
line of said Parcel 2; thence leaving said right of way Antonio Parkway and along the Northerly
line of said Parcel 2, the following courses: South 41°43'07" East 216,00 feet, and South
85°42'35" East 2515.63 feet to the point of beginning.
EXCEPTING therefrom that portion of said Parcel 2, described as follows:
Commencing at the Southeasterly terminus of that certain course shown as having a
bearing and distance of "N 41043'07" W 1149.65' " for a portion of the genefal Northerly
line of Parcel 2; thence North 41°43'07" West 26.96 feet along said general Northerly
line to the TRUE POINT OF BEGINNING; thence continuing along said general
Northerly line North 41°43'07" West 189.04 feet to the Easterly right of way of Antonio
Parkway as described in that certain document recorded April 30, 1998 as Instrument No.
19980260407 of said Official Records, said point being the beginning of a non -tangent
curve concave Easterly having a radius of 1738.00 feet, a radial line of said curve to said
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nasi- i r..n pin..n r un, ronin r FI pacn I Phrorn. I Tn51•n I Ontario I Albuoueraue I Seattle I Tacoma
LADERA OPEN SPACE DEDICATION
PHASE 1
PAGE
10-0367-10(A)
-01-98
.evised
11-16-98
point bears North 77°43'49" West; thence along said Easterly right of way, the following
courses: Southerly 1689.32 feet along said curve through a central angle of 55041'27",
South 43025'16" East 400.00 feet to the beginning of a tangent curve Southwesterly
having a radius of 2162.00 feet, and Southerly 730.50 feet through a central angle of
19°21'33" to the general Easterly line of Parcel 1 of said Lot Line Adjustment LL 96-026;
thence leaving said Easterly right of way line of Antonio Parkway North 74°04'22" East
78.76 feet along said general Easterly line to the beginning of a non -tangent curve
concave Southwesterly having a radius of 2240.00 feet, a radial line of said curve to said
point bears North 6611324" East; thence Northwesterly 768.00 feet along said curve
through a central angle of 19138'40'; thence North 43'25'16" West 400.00 feet to the
beginning of a tangent curve concave Easterly having a radius of 1660.00 feet; thence
Northerly 1451.87 feet along said curve through a central angle of 50°06'44'; thence
North 80°54'23" East 45.82 feet; thence North 48°16'53" East 41.46 feet to the true point
of beginning.
Containing an area of 124.675 acres, more or less.
Subject to covenants, conditions, reservations, restrictions, rights of way and easements, if any, of
record.
Parcel 13:
Commencing at the Southerly terminus of that certain course shown as "N 13°00'19" W
1822.23' " for a portion of the Westerly line of said Parcel 2; thence North 13°00'19" West 907.16
feet along the Westerly line of said Parcel 2; thence leaving said Westerly line South 76°59'41"
West 426.07 feet to the TRUE POINT OF BEGINNING; thence South 343.59 feet; thence West
253.55 feet; thence North 343.59 feet; thence East 253.55 feet to the true point of beginning.
Containing an area of 2.000 acres, more or less.
Subject to covenants, conditions, reservations, restrictions, rights of way and easements, if any, of
record.
Parcel C:
Commencing at the Southeasterly corner of said Parcel 2; thence West 1829.32 feet along the
Southerly line of said Parcel 2 to the Easterly right of way of Antonio Parkway as described in
that certain document recorded April 30, 1998 as Instrument No. 19980260407 of said official
records, said point being the beginning of a non -tangent curve concave Southwesterly having a
radius of 2412.00 feet, a radial line of said curve to said point bears North 70°08'23" East; thence
Northerly along said right of way 814.76 feet through a central angle of 19°21'15" to the TRUE
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LADERA OPEN SPACE DEDICATION 10-0367-10(A)
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PAGE 3 .Revised
11-16-98
POINT OF BEGINNING; thence leaving said Easterly right of way of Antonio Parkway North
51052'09" East 925.42 feet; thence North 32000'08" West 116.75 feet; thence North 15°07'34"
West 1085.78 feet; thence North 34° 11'46" West 367.45 feet; thence North 20005'33" East 845.96
feet; thence South 72°44'29" West 138.42 feet; thence South 76010'38" West 264.59 feet; thence
South 5705'22" West 250.00 feet; thence North 32°54'38" West 530.00 feet; thence North
37°05'22" East 400.00 feet; thence North 200.00 feet; thence North 57°05'29" West 230.00 feet;
thence South 39042'31" West 961.05 feet; thence South 27°5645" East 787.11 feet; thence South
49°06'24" West 102.53 feet; thence South 24035'59" East 501.79 feet; thence South 59058'17"
West 474.91 feet; thence South 49038'57" West 219.47 feet to said Easterly right of way of
Antonio Parkway, said point being the beginning of a non -tangent curve concave Northeasterly
having a radius of 2288.00 feet, a radial line of said curve to said point bears North 64142'53"
East; thence along said Easterly right of way of Antonio Parkway, the following courses:
Southeasterly 671.75 feet along said curve through a central angle of 16°49'18", South 42°06'25"
East 914.94 feet to the beginning of a tangent curve concave Southwesterly and having a radius
of 2412.00 feet, and Southerly 121.77 feet along said curve through a central angle of 2°53'34" to
the true point of beginning.
Containing an area of 75.637 acres, more or less.
Subject to covenants, conditions, reservations, restrictions, rights of way and easem-nts, if any, of
record.
m/roan/ 10.0367.10/1/pha I/JM/r
NO. 555.'
DCP. 9/30/01
\mss ,
N77'43'49"W
4�;26.96
N80'S4'23"E
45.82'O.C.
122
A
= 55'41'27"
R =
1738.00'
L =
1689.32'
EXCEPTION
AREA
N85'42'35"W
1 p=50'06'44"
R=1660.00'
�g L=1451.87'
\ •
N43'25'16"Wf \\
400.00'
A = 19'21'33"
R = 2162.00'.
L = 730.50'
SHEET 1 OF 3
P. 0. B.
NE'LY CORNER PCL. 2
2515.63'
VA
N43'25'16"W PARCEL A
400.00'
724.675 ac.
A = 19'38'40"
R = 2240.00'
L = 768.00'
E'LY R/W ANTONIO PARKWAY I� 4 / t
PER INST. NO.19980260407 O.R. g34'`1 2 E o
1a�6 N74042 0
N65'56'17"E ;
RAD.- J \ GENERAL z
N66'13'24"E -i' ' ELY LINE
RAD. PCL. 1
I;
<",; p = 4'39'11"
/ R = 3000.00
L = 243.64'
H U ITT -ZOLIAIZS
Huitt-Zolars, Inc.
15101 Red Hil Avenue, Tustin, CA 92780
SKETCH TO ACCOMPANY
A LEGAL DESCRIPAON
N18'37'25"E
430.00'
y
N86'08'32
494.7
REI/.• 11
CAGE 1..
RAW BY
JRD
JOB Na
10-0367-10
G.\10036710\EX\£X036721.DWG
SHEET 2 OF 3
r�
Z
m
n
r
N
Z
w
o f`lj
EAST N�42607'--
(� 253.55'
> r-
to Q �(!�/ to LA
o.t ,S,C!- o� :t l;� O N
ZMQ ZM W
EAST iii J
253.55'
( ) = RECORD PER LL96-026
PARCEL B - 2000 ac.
HUITT-ZOLLARS
Huitt-ZoDara, Inc.
15101 Rad HUI Avenue, Tustin, CA 92780
(714> 250-7900
P.O.C.
SKETCH TO ACCOMPANY
A LEGAL DESCRIPTION
PA K;a B
L�iXR4rS^OPSV SPACE
DEDCATli�14/ - PHASE 1
1011198
iva
10-0367-10
G.\10036710\EX\EX0Jb1L;.uwu
\ N49'06'24"E
\\ 102.53'
Z
�Z\\ Q�cP.
Q_
N57 -05'29"W
230.00--< \
,F
200.00'
NORTH
® N76'10'38"E
264.59'
PARCEL C
75.637 ac.
V59'58'17"E
474.91'
0 = 16'49'18"
R = 2288.00'
L = 671.75'
E'LY R/W �' `�
ANTONIO PARKWAY
INST. NO. 19980260407 O.R.
10 A = 2'53'34"
R = 2412.00'
L = 121.77'
02 N57'05'22"E
03 N32'54'38"W
® N37'05'22"E
N 72'44'29"E
138.42'
N34'11'46"W
367.45'
0="
1 \'i
250.00' n, = 19'21'15\\ '
R = 2412.00'
530.00' L = 814.76'
400.00' N70_08'23"E
RAO.
HUITr-ZOLLARS
Huitt-Zolars, Inc.
15101 Red H1I Avenue, Tustin, CA 92780
C7f4) 259-7.200
SHEET 3 OF 3
32'00'08"W
116.75'
EAST
S'LY LINE PCL. 2
.C.
SE'LY CORNER P.OPCL 2---�
SKETCH TO ACCOMPANY
A LEGAL DESCRIPTION
1829.32
Xma
10-0367-10
G. \10036710\EX\£X036721.Vwc
Exhibit F
RULES AND REGULATIONS
1. No keys to locks, gates, fences and/or other structures shall be made or otherwise installed
without the consent of Rancho Mission Viejo, LLC ("RMV"); and a copy of each key to any such lock,
gate, fence or structure which is not installed by RMV shall be delivered to RMV prior to the utilization
thereof.
2. Any key which is provided by RMV shall be returned on the same date of delivery.
3. All gates, doors and similar access and control points shall be closed immediately upon passage
through the same.
4. No access and/or use of property shall be permitted or otherwise undertaken except after 7:30
A.M. and before 5:00 P.M., Monday through Friday, without the prior written consent of RMV.
5. All trash and debris shall be removed from the property.
6. Vehicle speed shall not exceed 25 miles per hour.
7. All entrants upon the property shall be subject to being stopped by RMV security personnel and
shall cooperate with such security personnel, including providing personal and company identification
together with an original of an entry permit executed by RMV.
S. None of the following shall be permitted on the property: drugs or narcotics (except subject to a
written medical prescription therefore and which is evidenced thereon); alcohol; hunting; fishing; and
firearms.
9. Transit to and from the permitted site or use shall be limited to RMV -delineated roads; and no
off-road travel and/or use is permitted except in accordance with the written consent or written use
agreement executed by RMV.
10. No removal of anything (e.g. citrus, artifacts, etc.) found or located upon the property except in
accordance with the written consent or written use agreement executed by RMV.
11. No storage or dumping of anything upon the property except in accordance with the written
consent or written use agreement executed by RMV.
12. Any and all use is limited to "official' (and not "personal') purposes.
13. No photographs, video or other imagery (electronic, chemical or otherwise) for commercial,
resale or payment, directly or indirectly, is permitted except with the written consent or written use
agreement executed by RMV.
21
Exhibit G
RECORDING REQUESTED BY:
DMB Ladera, LLC,
a Delaware limited liability company
WHEN RECORDED, MAIL TO:
Brobeck, Phleger & Harrison LLP
38 Technology Drive
Irvine, California 92618
Attention: Bryan Ngo, Esq.
DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS
(Stoneridge Development)
By and Between
DMB L.,—)ERA, LLC,
a Delaware Limited Liability Company,
as "Ladera"
and
STONERIDGE OWNERS (as defined herein)
Effective Date:
::ODMAAPCDOCSAOCOLIB 1\1 89114\3
DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS
(Stoneridge Development)
THIS DECLARATION OF COVENANTS, CONDITIONS AND
RESTRICTIONS (the "Declaration") is made this _ day of
by and between DMB LADERA, LLC, a Delaware limited liability company, its successors and
assigns ("Ladera") and the Stoneridge Owners.
THIS DECLARATION is based upon the following facts, intentions and
understandings:
(a) Ladera is the master developer of the Ladera Ranch planned community in
accordance with the Ladera Development Agreement recorded January 17, 1997 in the Official
Records of Orange County, California as Instrument No. 19970027386 ("Development
Agreement").
(b) In furtherance of the Development Agreement, Ladera intends to dedicate
certain portions of Parcel l of Lot Line Adjustment LL 96-026 (the "Adjacent Property") in the
unincorporated territory of the County of Orange, State of California, as shown on exhibit "B"
attached to that certain document recorded on November 11, 1996 as Instrument No.
19960587414 in the official records of said county, for open space and other purposes in
accordance with the Development Agreement and an open space agreement with the County of
Orange.
(c) SC is a California non-profit mutual benefit corporation whose members
are the Stoneridge Owners who own residential properties in the Stoneridge development
("Stoneridge Properties") located in the City of San Juan Capistrano as more particularly
described in Exhibit A attached hereto.
(d) The Stoneridge Owners have experienced land subsidence problems on
the Stoneridge Properties. In order to assist the Stoneridge Owners and SC in curing the land
subsidence problems on the Stoneridge Properties ("Land Subsidence Problem"), the City has
indicated a desire and intention to acquire, via condemnation or transfer in lieu of condemnation,
certain property (the "Property") more particularly described in Exhibit B attached hereto
which is adjacent to the Stoneridge Properties and is currently a part of the Adjacent Property.
(e) In lieu of compelling the City to condemn or otherwise take the Property
by means of eminent domain, Ladera has indicated a desire to acquiesce to the transfer of the
Property to the City.
000LIOI\OrvTi8911403(41X 03' DOC)
(f j Upon receipt of title to the Property, the City intends to convey the
Property to SC in order to permit SC to perform the necessary work (the "Repair") to rectify the
Land Subsidence Problem.
(g) In order to decrease the costs and expenses of the Repair, SC and the
Stoneridge Owners have requested that Ladera permit SC to utilize another portion of the
Adjacent Property (the "Stockpile Area") described on Exhibit C attached hereto to serve as the
designated area for stockpiling dirt and other related uses during the Repair.
(h) The Plans (as defined in the Land Transfer Agreement) for the Repair are
hereby incorporated by reference; provided, the City shall be responsible for reviewing and
approving the Plans and Ladera shall have no responsibility with respect thereto and/or the
adequacy of the Repair inasmuch as Ladera does not believe that the Stoneridge Properties
should have been developed due to the inherent soil problems in this area.
(i) The parties agree that no action or inaction of the current or prior land
owner(s), including Ladera, and/or their agents, including Rancho Mission Viejo, LLC, has
contributed to the condition of the Property or the necessity of the Repair.
0) The parties intend that, upon completion of the Repair and the satisfaction
of all of the conditions as set forth in the Land Transfer Agreement, the portion of the Property
abutting each of the Stoneridge Properties shall become the property of each of the respective
Stoneridge Owners.
(k) Ladera and Stoneridge Owners desire to subject the Property to this
Declaration setting forth certain obligations owing to Ladera from the Stoneridge Owners
concerning the activities of the Stoneridge Owners in connection with the use of the Property for
the purpose of (i) enhancing and protecting the value, desirability and attractiveness of the
Property, (ii) protecting and defending Ladera ::.,m any claims or liabilities that may arise from
the use of the ,?roperty by the Stoneridge Owners, and (iii) preventing any disturbance or impact
to the Adjacent Property caused by the manner of use of the Property by the Stoneridge Owners.
NOW, THEREFORE, Ladera and Stoneridge Owners hereby covenant, agree and
declare that all right, title and interest of Ladera with respect to the Property shall be held and
conveyed subject to the following covenants, conditions and restrictions; these covenants,
conditions and restrictions shall run with the Property until released as provided herein and shall
be binding upon all parties having or acquiring any right or title in the Property or any part
thereof and shall inure to the benefit of Ladera and are imposed upon the Property as a servitude
in favor of the Adjacent Property owned by Ladera as the dominant tenement or tenements.
1. DEFINED TERMS. The following terms shall have the meaning set
forth thereafter:
(1) "Applicable Laws" mean all present and future federal, state or local
laws, ordinances, rules, regulations (whether under common law, statute, rule, regulation or
2
OCOLIB I\ N2\I8911503(4IX603i WC)
otherwise), permits, orders and any other requirements of governmental authorities and agencies
having proper jurisdiction.
(2) "CLq" means the City of San Juan Capistrano, a municipal corporation.
(3) "County" means, if the context denotes a location, Orange County,
California, and, if the context denotes an entity, the County of Orange, a political subdivision of
the Sate of California.
(4) "Ladera" means DMB Ladera, LLC, a Delaware limited liability
company, its successors and any person or entity to whom Ladera assigns its rights under this
Declaration.
(5) "Land Transfer Agreement' means that certain land transfer agreement
dated , 1999 by and between Ladera, SC and Stoneridge Owners.
(6) "Open Space Conservation Easement Agreement' means that certain
open space conservation easement agreement by and between Ladera and The Ladera Land
Conservancy, a California non-profit corporation, a copy of which is attached hereto as Exhibit
D.
(7) "Person" means any individual, partnership, corporation, limited liability
company, trust or other entity to which reference is made under this Declaration.
(8) "Restrictions" mean the covenants, conditions, restrictions and other
limitations set forth in this Declaration.
(9) "SC" means S.C. Slide, Inc., a California non-profit mutual benefit
corporation, consisting of individual owners who own individual residential properties in the
Stoneridge development located in the City.
(10) "Stoneridge Owners" mean means the following persons:
who own the Property or portion thereof or interest in the Stoneridge development located in the
City of San Juan Capistrano and who are or shall become members of SC;
(11) "Stoneridge Properties" mean those residential properties within the
Stoneridge development which are owned by the Stoneridge Owners and which are more
particularly identified and described on Exhibit A attached hereto.
1. DECLARATONS. Ladera and Stoneridge Owners hereby covenant,
agree and declare the following:
(a) The Property shall be subject to the terms, conditions and
covenants of that certain Open Space Conservation Easement Agreement;
OCOLIBI�N2"89I14.03(41W3 WC)
(b) Stoneridge Owners shall not construct any structures or
improvements on the Property without the prior written consent of Ladera, which consent shall
not be unreasonably withheld;
(c) Stoneridge Owners shall preserve, maintain and protect the open
space within the Property and shall comply with any and all fuel modification requirements in
the use of the Property in accordance with Applicable Laws; and
(d) Stoneridge Owners shall not use the Property in any manner which
shall impact or disturb the Adjacent Property, including but not limited to, subjecting the
Adjacent Property to any fuel modification requirements under Applicable Laws.
2. RELEASE OF LADERA AND RMV.
Stoneridge Owners hereby release and forever discharge Ladera and Rancho
Mission Viejo, LLC, a Delaware limited liability company ("RMV"), together with each
member of Ladera and RMV and any affiliated or subsidiary partnership, limited liability
company and/or corporation and their collective officers, directors, shareholders, employees,
agents, attorneys, insurers and partners (collectively "Ladera Indemnitees") of and from any
and all actions, causes of action, claims, rights, demands, debts, liens, damages, obligations,
liabilities, costs, expenses, fees, including, without limitation, attorneys' fees, breach of contract,
acts, charges or accountings of any nature whatsoever, whether known or unknown, fixed or
contingent, which Stoneridge Owners have or may hereafter have against any of the same arising
out of or related to and prior, current or future condition on, about, under or otherwise affecting
the Property, the Adjacent Property, the Stockpile Area and/or of the Stoneridge Properties,
including as intended to be addressed by the Repair (and any condition of the Property and/or the
Stoneridge Properties necessitating the same) or otherwise caused thereby (collectively, the
"Con.:ition"). Stoneridge Owners agree and represent that they may have claims against one or
more .;: the Ladera Indemnitees of which they have no knowledge at the time of the execution of
this Agreement, but that this Agreement is specifically intended to and does extend to any and all
claims in any way based upon, connected with, or related to the Condition and all actions taken
in connection therewith, including the negotiation of this Agreement, whether known or
unknown, claimed or suspected as of the date of the execution of the Agreement. As further
consideration and inducement, Stoneridge Owners hereby waive the provision of California Civil
Code § 1542, which provides as follows:
A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have materially
affected the settlement with the debtor.
3. RELEASE OF THE CITY. Stoneridge Owners hereby release and
forever discharge the City, together with its council members, staff, employees, (collectively
"City Indemnitees") of and from any and all actions, causes of action, claims, rights, demands,
000DUI\6NS\189114.0)(41 %6031, DOC)
debts, liens, damages, obligations, liabilities, costs, expenses, fees, including, without limitation,
attorneys' fees, breach of contract, acts, charges or accountings of any nature whatsoever,
whether known or unknown, fixed or contingent, which Stoneridge Owners have or may
hereafter have against any of the same arising out of or related to the Condition. Stoneridge
Owners agree and represent that they may have claims against one or more of the City
Indemnitees of which they have no knowledge at the time of the execution of this Agreement,
but that this Agreement is specifically intended to and does extend to any and all claims in any
way based upon, connected with, or related to the Condition and all actions taken in connection
therewith, including the negotiation of this Agreement, whether known or unknown, claimed or
suspected as of the date of the execution of the Agreement. As further consideration and
inducement, Stoneridge Owners hereby waive the provision of California Civil Code § 1542,
which provides as follows:
A general release does not extend to claims which the creditor does not know or
suspect to exist in his favor at the time of executing the release, which if known by him
must have materially affected the settlement with the debtor.
4. INDEMNITY.
Stoneridge Owners shall indemnify and hold harmless Ladera, Ladera
Indemnitees, the City and any other City Indemnitees from and against any liability, loss,
damage, injury or claim of any kind or character to any person or property caused by or relating
to, with or without fault, and arising from any of the following (and the phrase "if and to the
extent it affects" the Condition and/or the Property and/or Adjacent Property, including the
Stockpile Area, or words to that effect shall mean if and to the extent it affects, arises out of or
relates to the Condition, the Property and/or Adjacent Property, including the Stockpile Area, or
any improvement constructed thereon):
a. The failure to perform the Repair or otherwise correct the
Condition in accordance with the Plans (as defined in the Land Transfer
Agreement) and the requirements of applicable law and regulations and the
generally accepted standards of such profession or similar services required
thereby;
b. Any acts or omissions of Stoneridge Owners, SC or the agents or
representatives of Stoneridge Owners and/or SC in the performance of the Repair
or associated work or services;
C. The breach by SC and/or any Stoneridge Owners of any of their
obligations under this Agreement, including any violation or alleged violation by
of any applicable law; and
d. Any damage, liability, fine, penalty, punitive damages, costs or
expenses arising from or out of the presence or existence of any hazardous
substances in, on or about the Property and/or Adjacent Property, including the
5
OCOL191\BN2\I89114 0)(41X6031 DOQ
Stockpile Area, or any surrounding land arising from the Repair, the Condition
and/or Owners' or SC's acts or omissions with respect thereto, including any
claim, action, suit or proceeding for personal injury (including sickness, disease or
death), tangible or intangible property damage, compensation for lost wages,
business income, profits or other economic loss, damage to the natural resources
or the environment, nuisance, pollution, contamination, leak, spill, release or other
adverse effect upon the environment arising from the act or omission of SC or
Stoneridge Owners in the performance of the Repair.
5. ENFORCEMENT.
a. General. Ladera and the "Successor Ladera" (as that term is
defined below) and their successors alone shall have the right to enforce by proceedings at law or
in equity, all restrictions, conditions, covenants and reservations, now or hereafter imposed by
the provisions of this Declaration or any amendment thereto, including the right to prevent the
violation of any such restrictions, conditions, covenants or reservations and the right to recover
damages or other dues for such violation. Failure by Ladera to enforce any covenant, condition,
or restriction herein contained in any certain instance or on any particular occasion shall not be
deemed a waiver of such right on any future breach of the same or any other covenant, condition
or restriction by Stoneridge Owners. All rights, options and remedies of Ladera under this
Declaration are cumulative; and no one of them shall be exclusive of any other; and Ladera shall
have the right to pursue any one or all of such rights, options and remedies or any other remedy
or relief which may be provided by law, whether or not stated in this Declaration.
b. Successor Ladera. Ladera may assign any of its rights and powers
under this Declaration to any other person or entity so long as such person or entity in writing
agrees to assume the duties of Ladera pertaining to the particular rights and powers assigned;
and, upon the recordation of such writing accepting such assignment and assuming such duties,
such as !-:ice (the "Successor Ladera"), to the extent of such assignment, shall have the same
rights and powers and be subject to the same obligations and duties as are given to and assumed
by Ladera herein and Ladera shall be released and relieved of such rights and obligations. If and
to the extent specifically assigned in writing as provided in this subsection, the Successor Ladera
shall be a third party beneficiary of this Declaration.
6. CAPTIONS. The captions used herein are for convenience only and are
not a part of this Declaration and do not in any way limit or amplify the terms and provisions
hereof.
7. GOVERNING LAW AND VENUE. This Declaration shall be governed
by and construed under the laws of the State of California. In the event of any legal action to
enforce or interpret this Declaration, the sole and exclusive venue shall be a court of competent
jurisdiction located in the County; and Stoneridge Owners shall submit to the jurisdiction of such
court.
6
OCOLIBIIB142\I8911403(4IX6 31 DOC)
8. ATTORNEYS' FEES. In the event any action shall be instituted in
connection with this Declaration, the party prevailing in such action shall be entitled to recover
from the other party all of its costs and expenses incurred therein, including without limitation
reasonable attorneys' fees.
9. SEVERABILITY. In the event that any portion of this Declaration shall
become illegal, null or void or against public policy, for any reason, or shall be held by any court
of competent jurisdiction to be illegal, null or void or against public policy, the remaining
portions of this Declaration shall not be affected thereby and shall remain in force and effect to
the full extent permissible by law.
10. GENDER AND NUMBER. In this Declaration (unless the context
requires otherwise), the masculine, feminine and neuter genders and the singular and the plural
include one another.
11. COVENANTS TO RUN WITH THE LAND, TERM.
a. Restrictions. The Property made subject to this Declaration from
time to time shall be held, developed, conveyed, hypothecated, encumbered, leased, rented, used
and occupied subject to the Restrictions. The Restrictions are intended and shall be construed as
covenants and conditions running with and binding such portions of the Property and equitable
servitudes thereupon and every part thereof; and all and each of the Restrictions shall be binding
upon and burden all persons having or acquiring any right, title or interest in such portions of the
Property (during their ownership of such interest), or any part thereof, and their successors and
assigns. Subject to the provisions in the immediately following subsection below, the
Restrictions shall inure to the benefit of the Adjacent Property referenced above, the Stoneridge
Owners thereof and their successors and assigns; and the Restrictions shall be enforceable by
Ladera and its successors and assigns, all upon the terms, provisions and conditions set forth
here;,. -
b. Term. This Declaration shall continue in full force and effect for a
term of sixty (60) years from the date the same is recorded in the Office of the County Recorder.
C. Termination. Notwithstanding the foregoing:
(1) Reacquired Property. This Declaration, together with the
Restrictions set forth or otherwise incorporated herein, shall, upon recordation in the Office of
the County Recorder of a notice of termination executed by Ladera, automatically terminate and
be of no further force or effect as to any portion of the Property reacquired by Ladera (as to
which Ladera has not assigned its rights and obligations hereunder to a Successor Ladera),
whether by grant deed, lot line adjustment or otherwise, but the Restrictions shall continue to
apply as to the remainder of the Property.
(2) Transferred Property. In the event that any portion of the
Adjacent Property which has been made a benefitted or dominant tenement of this Declaration is
conveyed by Ladera to a third party (each Property thereof so transferred is hereinafter referred
0C0LJB1\BN2\18911403(4[X6031 MQ
to as a "Transferred Property"), the Restrictions shall cease to benefit such Transferred
Property unless Ladera expressly assigns to the transferee of the Transferred Property the
benefits of all or a portion of the Restrictions, either concurrently with conveyance of the
Transferred Property or at any time thereafter, in either case, by a recorded assignment document
executed by Ladera and specifically referencing this Declaration (and general references to
appurtenances or rights related to the acquired land will not suffice). Any merger of Ladera with
or into another entity or any acquisition of all or a portion of the equity of Ladera by a third party
will not be deemed a transfer of the Adjacent Property subject hereto triggering the applicability
of this subsection.
d. Assignees. lees. Stoneridge Owners shall cause any person or entity
holding any interest in the Property subject hereto by, through or under Stoneridge Owners
(including, but not limited to, any trustee, beneficiary or mortgagee under a deed of trust or
mortgage executed by Stoneridge Owners and encumbering the Property or any part thereof or
interest therein) to execute or otherwise consent to this Declaration.
12. NOTICES. Any notice to be given or other document to be delivered by
any party to the other or others hereunder, and any payments from Stoneridge Owners to Ladera,
may be delivered in person to an officer of any party, or may be delivered by Federal Express,
private commercial delivery or courier service for next business day delivery or may be
deposited in the United States mail in the County of Orange, State of California, duly certified or
registered, return receipt requested, with postage prepaid, and addressed to the party for whom
intended as provided under the Land Transfer Agreement. Notice may also be given by
facsimile transmission ("Fax") to any party at the respective Fax number given above and
marked "RUSH - PLEASE DELIVER IMMEDIATELY," provided receipt of such transmission
shall be confirmed by follow-up notice within seventy-two (72) hours by another method
authorized above. Any party hereto may from time to time, by written notice to the other,
designate a different address which shall be substituted for the ( -bove specified. If any notice
or other documen.., sent by mail as aforesaid, the same shall be seemed served or delivered
seventy-two (72) hours after the mailing thereof as above provided. Notice by any other method
shall be deemed served or delivered upon actual receipt at the address or Fax number listed in the
Land Transfer Agreement.
13. EFFECT OF DECLARATION. This Declaration is made for the
purposes set forth in the Recitals to this Declaration and Ladera makes no warranties or
representations, express or implied, as to the binding effect or enforceability of all or any portion
of this Declaration, or as to the compliance of any of these provisions with public laws,
ordinances and regulations applicable thereto.
14. RIGHTS OF MORTGAGEES.
a. No Impairment. The breach of any covenants, conditions or
restrictions herein contained shall not defeat, invalidate nor impair the obligation or priority of
any mortgage or deed of trust now or hereafter executed and constituting a lien upon the Property
or any portion thereof which is made in good faith and for value; provided, however, that any
OCOLIB I\BN2U991140)(4 IX60Y DOC)
party, including the holder of the mortgage or deed of trust, who acquires title through private or
judicial foreclosure, trustee's sale or deed in lieu of foreclosure (a "Foreclosure -Purchaser")
and all successors and assigns of such Foreclosure -Purchaser shall take title subject to all of the
covenants, conditions and restrictions contained in this Declaration.
b. Foreclosure -Purchaser. A Foreclosure -Purchaser shall not be
liable for damages arising from the breach of any covenants, conditions or restrictions performed
or which were to have been performed prior to the time such Foreclosure -Purchaser acquires title
to all or any portion of the Property; provided, such Foreclosure -Purchaser shall have until the
later of (i) six (6) months after acquisition of title to all or a portion of the Property or (ii) the
times reasonably required under the construction/inventory schedules contained in the applicable
development and acquisition agreements to commence or continue construction of improvements
and/or to repair or replace any improvements which were constructed in violation of any
requirements. The schedules and time for construction of improvements shall be extended as
reasonably necessary to be consistent with the foregoing sentence. Any improvements
commenced or continued by Foreclosure -Purchaser after acquisition of title to all or any portion
of the Property shall be diligently pursued once commenced and otherwise in accordance with
this Declaration.
15. WAIVER OF JURY TRIAL. LADERA AND STONERIDGE
OWNERS HAVE EACH ACKNOWLEDGED THAT IT HAS HAD THE ADVICE OF
COUNSEL OF ITS CHOICE WITH RESPECT TO RIGHTS TO TRIAL BY JURY UNDER
THE CONSTITUTIONS OF THE UNITED STATES AND THE STATE OF CALIFORNIA.
BOTH LADERA AND STONERIDGE OWNERS EXPRESSLY AND KNOWINGLY WAIVE
AND RELEASE ALL SUCH RIGHTS TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER PARTY AGAINST THE
OTHER ON ANY MATTERS ARISING OUT OF OR IN ANY WAY CONNECTED WITH
THIS DECLARATION, OWNERS' TJSE OR DEVELOPMENT OF THE PROPERTY,
ADJACENT PROPERTY OR ANY ADJOINING PROPERTY AND/OR ANY CLAIM FOR
INJURY OR DAMAGE.
si nature naize to followl
OCOLIBI\UN2\19911401(41XWP WC)
IN WITNESS WHEREOF, the parties have executed this instrument the day and
year first hereinabove written.
"Ladera"
DMB LADERA, LLC,
a Delaware limited liability company
By: RANCHO MISSION VIEJO, LLC, a
Delaware limited liability company,
its agent and manager
By:
Donald L. Vodra,
Chief Operating Officer
By:
Melissa M. Freese,
Vice President
"Stoneridge Owners"
10
OCOLiB"BN1\ 189114 03(41 X60]-OOQ
Description of the Stoneridge Properties
Gregory & Linda Fryling
29802 Highview Circle
San Juan Capistrano, CA 92675
Lot #47
James and Nancy Scanlon
27351 Silver Creek Dr.
San Juan Capistrano, CA 92675
Lot #50
Charles and Elizabeth Cawthome
27371 Silver Creek Dr.
San Juan Capistrano, CA 92675
Lot #51
Choon and Kazue Tanaka
27381 Silver Creek Dr.
San Juan Capistrano, CA 92675
Lot #52
John and Angela Heinaman
27391 Silver Creek Dr.
San Juan Capistrano, CA 92675
Lot #53
John and Linda Petersen
27401 Silver Creek Dr.
San Juan Capistrano, CA 92675
Lot #54
Jack and Kay Hockema
San Juan Capistrano, CA 92675
Lot #
Exhibit 11
Description of the Property
LEGAL DESCRIPTION
EASEMENT FOR SLOPE REPAIR PURPOSES
A portion of Rancho Mission Viejo in the County of Orange, State of California as shown on a
Record of Survey filed in Book 9, Pages 15 through 25, inclusive, of -Record of Surveys, in the office
of the County Recorder of said County, described as follows:
Beginning at a point in the Northeasterly boundary of Tract No. 6381 as shown on a map filed in
Book 433, Pages 5 through 15, inclusive, of Miscellaneous Maps, in the office of said County
Recorder, South 52°57'27" East 60.50 feet along said boundary, from the most Northerly comer of
Lot 47 of said Tract; thence North 37°02'33" East 43.00 feet; thence North 44°01'45" East 102.76
feet; thence North 56°21'04" East 145.17 feet; thence South 71°38'04" East 149.89 feet; thence South
33°40'38" East 181.71 feet; thence South 43°17'03" East 267.81 feet; thence South 52°28'19" East
236.01 feet; thence South 33°42'02" West 137.23 feet; thence South 86°03'43" West 131.14 feet to
said boundary; thence, along said boundary, North 52°57'27" West 783.02 feet to the True Point of
Beginning.
As more particularly shown on Exhibit "B" attached hereto and by this reference made a part
hereof.
�I<o ,��
Rory S. Williams, L.S. No. 6654
License Expires: December 31, 1999
D--- 1 -F �
�AN D
Rory S. Williams
Exp. 12/31/99
J� No. 6654 \Q
'9TFOF CAL\F��a
September 9, 1999
Page I of 1
W.O. 2426-1T
H&A Legal No. 4306
Prepared by: V. Edge
Checked by: R. Williams/t]
EXHIBIT "B"
Sketch to Accompany Legal Description
",-160.50' 7 27"E ..
N37°02'33"E
43.00'
102.76'-" N56?,,,
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®HUNSAKER & ASSOCIATES EASEMENT FOR
• ' R V I N E G SLOPE REPAIR PURPOSES
PLANNING • ENGINEERING • SVRVEYING
ThHughes • I.. CA 9361E • M (949) NU 1010 • flC (9 91 5530)59 UNINCORPORATED TERRITORY OF THE COUNTY OF ORANGE, STATE OF CALIFORNIA
ee
O" ` 9-9-99 o s - - - ,, V. Edge ey° R. Williams SCALE: 1"= 150' W.O. 2426-1T
"`L I:\STONERIDGE\LD\4806\SHT01 .DWG �a ACAD-MC H&A LEGAL No. 48061 SHEET 1 OF 1
Page 2 of 2
Exhibit C
Description of the Stockpile Area
LEGAL DESCRIPTION
EASEMENT FOR DIRT STOCK PILE PURPOSES
A portion of Rancho Mission Viejo in the County of Orange, State of California as shown on a
Record of Survey filed in Book 9, Pages 15 through 25, inclusive, of Record of Surveys, in the office
of the County Recorder of said County, described as follows:
Commencing at a point in the Northeasterly boundary of Tract No. 6381 as shown on a map filed in
Book 433, Pages 5 through 15, inclusive, of Miscellaneous Maps, in the office of said County
Recorder, South 52°57'27" East 60.50 feet along said boundary, from the most Northerly corner of
Lot 47 of said Tract; thence North 37°02'33" East 43.00 feet; thence North 44°01'45' East 102.76
feet; thence North 56°21'04" East 145.17 feet; thence South 71°38'04" East 149.89 feet to the True
Point of Beginning; thence South 33°40'38" East 181.71 feet; thence South 43°17'03" East 267.81
feet; thence South 52°28'19" East 236.01 feet; thence North 88°55'59" East 115.04 feet; thence South
80049'29" East 98.41 feet; thence North 27038'06" East 171.30 feet; thence North 53°46'55" West
278.03 feet; thence North 49°02'06" West 175.41 feet; thence North 55030'09" West 225.22 feet;
thence South 45°54'01" West 155.86 feet; thence North 63°53'35" West 121.24 feet to the True Point
of Beginning
As more particularly shown on Exhibit "B" attached hereto ane by this reference made a part
hereof.
� S
Rory S. Nlkliams, L.S. No. 6654
License Expires: December 31. 1999
Page 1 of 2
Rory S. Williams
Ezp. 12131/99
No 6654
OF ra-\F
September 9, 1999
Page 1 of 1
W.0.2426 -1T
H&A Lczal No. 4807
Prcnarcd bv: V. Edi -,e
J
EXHIBIT "B"
Sketch to Accompany Legal Description
S52°57'27"E
%160.50'
43.00' '33"E
43.00'
I56?1O�
N44°01'45"E �4 �,f
®HUIVSAKER & ASSOCIATES TEMPORARY EASEMENT
• I R V I N E ` FOR DIRT STOCK PILE PURPOSES
PLANNING • ENGINEERING • SURVEYING
Thee Hu{ha • Inr¢, U 92n1e PH (9°9) seaimo • fx: (9°9) 5e34759 UNINCORPORATED TERRITORY OF THE COUNTY OF ORANGE STATE OF CALIFORNIA
DAM 9-9-99 0 - - - °e V. Edge B ' R. Wllioms SCALE: 1"= 150' W.O. 2426-1T
`"` I:\STONERIDGE\LD\4807\SHT0I.DWG N° ACAD-MC H&A LEGAL No. 48071 SHEET 1 OF 1
Exhibit C Page 2 of 2
WHEN RECORDED, MAIL TO:
Rancho Mission Viejo
P.O. Box 9
San Juan Capistrano, California 92693
(Space Above For Recorder's Use)
OPENSPACE
CONSERVATION EASEMENT
(Ladera Ranch)
M
DMB LADERA, LLC,
a Delaware limited liability company,
as Grantor
To
THE LADERA LAND CONSERVANCY,
a California non-profit corporation,
as Conservancy
Effective Date: December. 1998
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Sectio
Page
1.
Grant of Conservation Easement........................................................................................
2
a. Policy, Goals & Purpose.........................................................................................
2
b. Performance Criteria...............................................................................................
2
(1) Termination of Corporate Existence...........................................................
2
(2) Event of Default..........................................................................................
3
C. General Grant..........................................................................................................
3
d. Initial Conservation Easement Area.......................................................................
3
e. Annexation of Additional Conservation Easement Area ........................................
3
2.
General Costs and Liabilities..............................................................................................
4
3.
Permitted Use of Conservancy............................................................................................
4
a. Irrigation.................................................................................................................
4
b. Access.....................................................................................................................4
(1) Enforce........................................................................................................4
(2) Observe.......................................................................................................4
(3) Routes.........................................................................................................4
(4) Interference.................................................................................................4
C. Protect, Enjoin & Restore.......................................................................................
4
d. Enforce....................................................................................................................4
e. Construct Fencing...................................................................................................
5
f. Construct Improvements.............................:...........................................................
5
(1) Approval.....................................................................................................5
(2) No Interference...........................................................................................
5
4.
Approvals; Compliance......................................................................................................
5
a. Licenses & Permits.................................................................................................
5
b. Laws........................................................................................................................5
5.
Enumerated Reserved Uses of Grantor...............................................................................
5
a. Roads.......................................................................................................................5
b. Grazing....................................................................................................................5
C. Utilities; Public Improvements...............................................................................
6
d. Existing Easements.................................................................................................
6
e. Flood Control..........................................................................................................
6
f. Hiking and Riding Trails........................................................................................
6
g. Prescribed Fires; Access.........................................................................................
6
h. Community Events.................................................................................................
6
i. Scientific Research..................................................................................................
6
j. Grading............................................................ :...............................
- ..................... 6
k. Communication.......................................................................................................7
1. Mitigation................................................................................................................7
(1) Resource Management Plan ........................................................................
7
M. Signage....................................................................................................................7
n. Additional Easements and Rights...........................................................................
7
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OPENSPACE
CONSERVATION EASEMENT
(Ladera Ranch)
THIS OPEN SPACE CONSERVATION EASEMENT (the "Easement") is made
and entered into as of the _day of December, 1998, by DMB LADERA, LLC, a Delaware
limited liability company ("Grantor" ), and THE LADERA LAND CONSERVANCY, a
California non-profit corporation ("Conservancy").
THE PARTIES ENTER INTO THIS EASEMENT based upon the following
facts, understandings and intentions:
A. Grantor and the County of Orange ("County") entered into (i) that certain
Ladera Development Agreement dated December 3, 1996, which was recorded in the official
records of the County of Orange on January 17, 1997, as Instrument Number 19970027386
("Development Agreement") and (ii) that certain Regional Open Space Agreement dated June
12, 1998 ("Open Space Agreement') in furtherance and implementation of the requirements of
the Development Agreement.
B. Grantor is the owner and master developer of certain real property (the
"Project") in Orange County, California, which is subject to the Development Agreement; and,
in accordance therewith, certain areas of such real property established in accordance with the
Open Space Agreement and described below or otherwise hereafter annexed and made subject
hereto (collectively, the "Conservation Easement Area) have been designated for, among other
uses, open space, conservation and related uses as more particularly described in this Easement.
C. Conservancy has been organized to preserve and enhance natural areas for
aesthetic, scientific, charitable and educational purposes; and Conservancy is qualified under
California Civil Code Section 815.3 to acquire and hold conscrvation easements.
D. The Conservation Easement Area is currently in a substantially
undisturbed and natural state and has significant ecological, scientific and aesthetic value and
provides significant, relatively natural habitat for plants and wildlife.
E. The Conservation Easement Area is comprised of lands formerly a part of
the Rancho Mission Viejo and which are managed by Rancho Mission Viejo, LLC, a Delaware
limited liability company ("RMV").
F. The Conservation Easement Area's natural elements, ecological, scientific
and aesthetic values are (i) of great importance to the people of the State of California, the people
of the County of Orange, Grantor, Conservancy and RMV and (ii) are worthy of protection and
preservation.
G. Grantor owns and wishes to convey the rights to preserve and protect in
perpetuity the natural ecosystems, natural elements and the great scientific and aesthetic values
of the Conservation Easement Area.
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H. This Easement has been reviewed and approved by County as satisfying
Exhibit D (Table D-1 and Section II) and Exhibit F (Section 4, GPA 9) of the Development
Agreement, together with associated Land Use Element (LUE), zoning and General Plan
Amendment (GPA) Condition of Approval 9, and the requirements of the Open Space
Agreement with respect to the subject matter thereof.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt of which is hereby acknowledged, and
pursuant to the laws of the State of California and, in particular, Section 815 et.seq. of the
California Civil Code, Grantor hereby grants and conveys to Conservancy, its successors and
assigns forever, a perpetual, irrevocable conservation easement in gross over and across the
Conservation Easement Area in accordance with the terms and conditions hereafter set forth:
a. Policy Goals & Puroose. The parties desire and intend that (i) the
Conservation Easement Area's ecological elements and scientific and aesthetic features and
values be preserved and maintained in perpetuity by the continuation of such uses in the
Conservation Easement Area as may be conducted consistent with the conservation values
protected herein and otherwise consistent with the Southern Subregion Natural Communities
Conservation Plan ("NCCP") or, in the absence thereof, a Habitat Conservation Plan ("HCP"),
(ii) the existing conservation values of the Conservation Easement Area be preserved and
maintained by the continuation of land use patters that do not significantly impair or interfere
with the conservation and related uses more particularly described and permitted herein and (iii)
the Conservation Easement Area shall be retained forever in an open space condition (subject to
the uses permitted under this Easement) and to prevent any use of the Conservation Easement
Area that will impair or interfere with the conservation values of the Conservation Easement
Area.
b. Performance Criteria. For purposes of determining whether
Conservancy is satisfying the policy, goals and purpose of this Easement, the occurrence of any
of the following conditions shall be deemed a material default by Conservancy hereunder:
(1) Termination of Corporate Existence. The termination of
Conservancy's corporate existence by any of the following methods and the failure of
Conservancy to assign this Easement and the rights granted to Conservancy hereunder either (i)
to another corporation which has been organized to preserve and enhance natural areas for
aesthetic, scientific, charitable and educational purposes and is qualified under California Civil
Code Section 815.3 or is otherwise legally permitted to acquire and hold conservation easements
or (ii) in accordance with Section 14 of this Easement:
(a) Voluntary Dissolution. Voluntary dissolution
evidenced by either (i) the filing of a certificate of dissolution pursuant to California
Corporations Code Section 6615 or (ii) a superior court order declaring the Conservancy wound -
up and dissolved pursuant to California Corporations Code Section 6617; or
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(b) Involuntary Dissolution. Involuntary dissolution
evidenced by a superior court order declaring the Conservancy wound -up and dissolved pursuant
to California Corporations Code Section 6518; or
(2) Event of Default. The existence of any of the following
conditions which is not cured within ninety (90) days following service upon each of the
Conservancy directors of written notice from the County that such condition exists:
(a) Insolvency. The Conservancy shall be or otherwise
be deemed insolvent;
(b) Failure of Board to Meet. The repeated failure of
the Board of Directors of Conservancy to meet following a call made in accordance with the
bylaws of Conservancy; or
(c) Policy, Goals & Purpose. The failure of
Conservancy to comply with the NCCP or, in the absence thereof, a HCP or, in the absence
thereof, this Easement, including to identify, preserve, manage and protect in perpetuity and to
restore the open space and significant, relatively natural, ecological features and values of the
Conservation Easement Area.
C. General Grant. Grantor hereby conveys and grants to Conservancy
a non-exclusive easement and right to use the surface of the Conservation Easement Area for the
"Permitted Use" (as hereafter defined): provided, the use of the surface of the Conservation
Easement Area for the Permitted Use is the exclusive use by Conservancy of this Easement and
the Conservation Easement Area; and, in addition to the specific rights reserved to Grantor
hereunder and specifically with respect to the subsurface of the property comprising the
Conservation Easement Area, Grantor retains the right to reasonable access to and use thereof so
long as Grantor's exercise of such retained and reserved rights does not materially disturb,
disrupt or interfere with the Permitted Use
d. Initial Conservation Easement Area. The initial Conservation
Easement Area is more particularly described on Exhibit A attached hereto and incorporated
herein by this reference.
e. Annexation of Additional Conservation Easement Area. All or any
part of the property designated as, or otherwise determined to be, Conservation Easement Area in
accordance with the Open Space Agreement shall be annexed to and become subject to this
Easement without the approval, assent or vote of Conservancy; provided, a spreader of easement
covering the portion of the property to be annexed (and which shall subject such additional property
then being annexed to the terms, covenants and conditions of this Easement) shall be executed and
recorded by Grantor. The recordation of said spreader of easement shall constitute and effectuate
the annexation of the said property described therein, making said property subject to this Easement;
and, thereafter, said annexed property shall be part of the Conservation Easement Area. For
purposes of this Easement, a spreader of easement shall be a writing in recordable form which
annexes property to the burdens and covenants of this Easement and which incorporates by
reference all of the covenants, conditions, restrictions and other provisions of this Easement without
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any approval or other action by or of any other party. In no event, however, shall any such spreader
of easement revoke, modify or add to the covenants established by this Easement with respect to the
existing property then subject hereto. Nothing provided herein shall in any way obligate Grantor to
annex any property to this Easement or to impose any similar or dissimilar covenants, conditions or
restrictions on any of its other property; and such other property shall not become part of the
Conservation Easement Area which is subject to this Easement unless and until Grantor shall have
recorded a spreader of easement as aforesaid.
2. General Costs and Liabilities. Conservancy shall have all responsibility
and shall bear all costs and liabilities of any kind related to the ownership of this Easement and
the operation, maintenance and use of the Conservation Easement Area by Conservancy in
accordance with this Easement.
3. Permitted Use of Conservancy. Conservancy (and no other entity, person
or organization) shall identify, preserve, manage and protect in perpetuity and restore the open
space and significant, relatively natural, ecological features and values of the Conservation
Easement Area in accordance with the NCCP or, in the absence thereof, a HCP or, in the absence
thereof, this Easement; and Conservancy shall have the following rights which shall be exercised
in accordance with this Easement so long as the same shall be consistent with the NCCP or, in
the absence thereof, a HCP, and any applicable governmental laws, ordinances, statutes, orders
and regulations with respect thereto (the "Permitted Use"):
a. Irrigation. To irrigate the surface of the Conservation Easement
Area relative to restoration activities, revegetation and conservation of natural resource values.
b. Access. To enter upon the Conservation Easement Area for the
following purposes and subject to the following limitations:
(:) Enforce. To enforce the rights herein granted;
(2) 9bsg vt_e. To generally observe, study and make scientific
observations of the Conservation Easement Area ecosystem;
(3) Routes. Access shall be by means of existing roads and
trails or other routes and access points as may be reasonably approved by Grantor and RMV
from time to time; and
(4) Interference. Access shall not unreasonably interfere with
the purpose and intent of this Easement.
C. Protect, Enjoin & Restore. To determine whether the use -of the
Conservation Easement Area is in compliance with the terms of this Easement and, -if not, to seek
to protect the Conservation Easement Area and/or otherwise enjoin any activity on, or use of, the
Conservation Easement Area which is inconsistent with the provisions of this Easement.
d. Enforce. To enforce the terms and provisions of this Easement
which are for the benefit of the Conservancy and/or the protection and preservation of the
Conservation Easement Area in accordance with this Easement, including to restore such areas
C:\window \TEMMjtpW.dx 4
or features of the Conservation Easement Area as may be damaged by activities which are
prohibited hereunder.
e. Construct Fencing. To construct and install fencing as may be
necessary to protect areas of scientific research from environmental degradation.
f. Construct Improvements. To construct such improvements as may
be necessary to protect the conservation values or maintain the resources protected by this
Easement so long as:
(1) Approval. Conservancy has received Grantor's prior
written approval for such improvements, which shall not be unreasonably withheld or delayed;
and
(2) No Interference. Such improvements do not interfere with
Grantor's continued use of the Conservation Easement Area (which uses shall not be inconsistent
with the uses required or permitted hereunder).
4.Approvals: Compliance. Conservancy's use of the Conservation Easement
Area shall be conditioned upon Conservancy, at its sole cost and expense:
a. Licenses & Permits. Maintaining all necessary licenses and/or
permits from all appropriate public and/or governmental agencies with respect to the Permitted
Use; and
b. Laws. Complying with each and every federal, state or local law,
regulation, standard, decision of court, ordinance, rule, code, order, decree, directive, guideline,
permit or permit condition, together with any declaration of covenants, conditions and
restrictions which have been recorded in any official or public records with respect to the
Conservation Easement Area or any portion thereof, each as currently existing ana a� amended,
enacted, issued or adopted in the future which are or become applicable to the Conservation
Easement Area and/or the property underlying or otherwise subject to the same.
5. Enumerated Reserved Uses of Grantor. The following specific rights, uses
and practices ("Enumerated Reserved Uses"), though not an exhaustive recital of consistent uses
and practices permitted and reserved by Grantor, are specifically reserved by Grantor from the
grant of this Easement; and these rights, uses and practices, as well as all others which do not
unreasonably interfere with this Easement, shall not be precluded, prevented or otherwise limited
only so long as the same shall be consistent with the NCCP or, in the absence thereof, a HCP or,
in the absence thereof, this Easement, together with any applicable governmental laws,
ordinances, statutes, orders and regulations with respect thereto:
a. Roads. To maintain, repair and/or replace public and privately
owned and maintained trails and roads in the Conservation Easement Area.
b. Grazin . Livestock grazing in accordance with a grazing
management plan approved by the Director of the Planning and Development Services
Department of the County in consultation with the Director of the Public Facilities and
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Resources Department of the County prior to any grazing activities in the Conservation
Easement Area.
C. Utilities* Public Improvements. To grant, and otherwise determine
the location of, utilities and public improvements within existing and/or new easements,
including, but not be limited to, for above -ground and below -ground electrical transmission
facilities, fuel and gas pipeline facilities, water, water reservoirs and pipelines, sewer, telephone,
video and data transmission, cable television and other uses and other pipelines and appurtenant
facilities, in one or more consolidated utilities corridors (consistent with such utilities to the
extent practical), maintenance of and access to such facilities and roads on and across the
Conservation Easement Area as may be necessary to serve land within or outside the
Conservation Easement Area but only so lone as the same shall be consistent with this
Easement and the NCCP or, in the absence thereof, a HCP and any applicable governmental
laws, ordinances, statutes, orders and regulations with respect thereto as reasonably reviewed,
approved and determined by the Conservancy (as a condition and prior to any such grant
thereof), including that the same do not conflict with the permitted mitigation areas.
d. Existing Easements. To continue the use of the Conservation
Easement Area for purposes of any easements of record prior to the date such underlying
property comprising the same was annexed to or otherwise made subject to this Easement,
including, without limitation, to consolidate and/or relocate any such easements into one or more
utility corridors.
e. Flood Control. To locate and maintain flood control and ancillary
and appurtenant facilities.
f. Hiking and Riding Trails. To construct and/or maintain, or
otherwise permit the same, one or more regional and/or community hiking and/or equestrian
trails in accordance with the Development Agreement and the Open Space Agreements, any and
all of which shall have rights which are superior and senior to any and all rights under this
Easement.
g. Prescribed Fires; Access. To conduct prescribed fires in
accordance with the requirements, direction, authorization or recommendation of the local fire
authority for purposes of the health and/or safety of surrounding properties and populations
and/or otherwise in order to further the intentions of this Easement and otherwise to have any
and all access to the Conservation Easement Area in order to fight or otherwise mitigate fires.
h. Community Events. To hold and otherwise conduct community
events which are consistent with goals and objectives of this Easement or are not otherwise
inconsistent with the other uses permitted and/or reserved hereunder. _
Scientific Research. To conduct scientific research;
Gradine. To perform remedial grading with revegetated slopes
utilizing native species;
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k. Communication. To locate, operate and maintain (and to grant
such rights to any and all third parties) communication facilities;
1. Miti ag tion. Grantor (or any member or partner thereof or any
person or party affiliated therewith or any member or partner thereof) shall have the right to
satisfy the requirements of any public agency in regards to environmental, geological,
hydrological, archaeological, paleontological and/or any other environmental or similar land use
related mitigation and/or restoration measures, commitments and conditions (collectively,
"Mitigation Actions") with respect to the development of the Project (including any projects
undertaken by the County in accordance with the Development Agreement or otherwise pursuant
to an agreement with Grantor in order to satisfy the requirements or conditions of the
Development Agreement) and/or any other land and/or area commonly referred to as the Rancho
Mission Viejo or any portion thereof (whether or not related to the Development Agreement) by
means of actions, or other encumbrances upon the Conservation Easement Area (and any and all
other such mitigation measures and activities may so burden the Conservation Easement Area)
so long as the same are not inconsistent with the Enumerated Reserved Uses, the goals and
policies of this Easement and either the NCCP or an HCP;
(1) Resource Management Plan. The requirements of the
Resource Management Plan, including the need for on-site monitoring confirmation studies,
shall be accommodated within the Conservation Easement Area;
in. Signage. To place or locate temporary signage appurtenant to the
Project and which is within 30 feet of curbs or other road improvements and is otherwise in
accordance with a County -approved signage program;
n. Additional Easements and Rights. To grant or permit additional
easements, licenses or other rights over, on or through the Conservation Easement Area and the
property underlying or otherwise subject to the same provided, however, that any such future
grant or permission shall not unreasonably interfere with the Permitted Use on the Conservation
Easement Area and otherwise only so long as the same shall be consistent with this Easement
and the NCCP or, in the absence thereof, a HCP and any applicable governmental laws,
ordinances, statutes, orders and regulations with respect thereto as reasonably reviewed,
approved and determined by the Conservancy (as a condition and prior to any such grant
thereof); and
o. Other. Any and all such other uses which are consistent with the
Enumerated Reserved Uses, this Easement and as otherwise approved by the Conservancy.
6. General Limitation on Permitted Use. This Easement and the rights
granted hereunder are limited solely to the Permitted Use; and Grantor reserves any and all other
rights to use the Conservation Easement Area so long as such use will not unreasonably interfere
with or otherwise prohibit the Permitted Use and is not otherwise prohibited hereunder.
7. Limitations on Public Use. No use of the Conservation Easement Area by
the general public is authorized by this Easement; and any and all such general public use shall
be limited to the use of the regional and community hiking and/or riding trails which are
C:\windows\THMP\3jipO6!.dm
described on recorded easements or other public record documents unless such use is with the
express prior written consent, and otherwise subject to the supervision, of the Conservancy and
within the boundaries of specified hiking and/or riding trails delineated and described as such.
Neither Grantor nor Conservancy shall encourage or permit the general public to use or enter
upon the Conservation Easement Area except as expressly provided herein. For purposes hereof,
the term "general public" shall not include persons accompanied by either Grantor or
Conservancy, or any of their employees, agents, representatives, contractors or subcontractors,
entering onto the Conservation Easement Area for, respectively, any reserved use (as to Grantor)
or any Permitted Use (as to Conservancy).
8. Specific Prohibited Uses on Conservation Easement Area. The following
uses and practices on the Conservation Easement Area are inconsistent with the purposes of this
Easement and shall be prohibited unless upon the unanimous written consent of Grantor,
Conservancy, RMV and County (as determined by the Director of Planning and Development
Services in consultation with the Director of Public Facilities and Resources Department):
a. Commercial Cropsi Exotic Species. Planting of commercial
agricultural crops or the conversion of native vegetation to new or exotic species.
or animal species.
b. Non -Native Plants and Animals. Introduction of non-native plant
C. Hunting or Trapping. Hunting or trapping.
d. Commercial Use. Commercial, retail or industrial development;
C. Farmin . Plowing, drilling seed or any other farming activity
which would disturb the soil surface.
f. Trash Dumping & Hazardous Materials Storage. Dumping of
ashes, trash, garbage or other unsightly, offensive or toxic material or the storage or use of
biocides and agricultural chemicals except as such biocides and/or chemicals may be necessary
to protect the native vegetation which is of conservation value and threatened by the invasion of
exotic material from outside the Conservation Easement Area.
g. TopographChanges. Changing of the topography through the
placing of soil, dredging soils, landfill or other material, including filling, excavating, dredging,
mining, drilling or removal of topsoil, sand, gravel, rock, minerals or other materials unless the
same is ancillary to or otherwise defined as an Enumerated Reserved Use.
9. Liens. Conservancy shall not permit to exist or otherwise to be enforced
against the Conservation Easement Area and/or the property underlying or otherwise subject to
the same any mechanics', materialmen's, contractors' or other liens arising out of the acts or
omissions of Conservancy; and Conservancy shall promptly pay or cause to be paid all of such
liens, claims or demands related thereto before any action is brought to enforce the same.
10. Taxes. Grantor agrees to pay any and all real property taxes and
assessments levied by competent authority on the fee interest of the Conservation Easement
CAwindow kTEMP\3jtpO6!.dm
Area; provided, Grantor shall have no obligation to pay any taxes or assessments which may be
levied against this Easement itself and Conservancy shall pay ,on or before delinquency, any and
all real property taxes and assessments (including any fees or amounts in lieu of real estate taxes
and assessments) and other governmental charges, general and special, ordinary and
extraordinary, unforeseen as well as foreseen, which are assessed, levied, confirmed, imposed or
become a lien against or upon this Easement and/or the Conservation Easement Area as a result
of this Easement, the Permitted Use and/or any improvements constructed or developed on the
Conservation Easement Area by Conservancy.
11. Insurance. Conservancy shall maintain comprehensive general liability
insurance, including automobile coverage and blanket contractual liability coverage, with respect
to the Conservation Easement Area, ingress to and egress therefrom and the activities of or on
behalf of Conservancy on or about the Conservation Easement Area, including personal injury
and property damage for not less than One Million Dollars ($1,000,000) combined single limit
bodily injury, death and property damage liability per occurrence, or the current limit of liability
carred, whichever is greater, and worker's compensation insurance to protect Conservancy and
Grantor (together with its agent) from any claim made or action brought by any person or entity
arising out of or related to Conservancy's use of the Conservation Easement Area or arising out
of or connected in any way with the acts of Conservancy or any other person claiming any
interest or right through or under Conservancy undertaken pursuant to this easement.
Conservancy shall provide that the policy or policies of insurance shall be primary and shall
name Grantor (together with its agent) as an additional insured, with the provision that any other
insurance carried by Grantor (and its agent) shall be noncontributing and shall waive all rights of
subrogation. Prior to entering upon the Conservation Easement Area, Conservancy shall furnish
Grantor with a Certificate of Insurance and Additional Insured Endorsement as evidence of such
policy or policies. Both the Certificate of Insurance and Additional Insured Endorsement shall
name Grantor (together with its agent) as additional insureds and contain language that
specifically states that each policy or policies of Comprehensive or Commercial General
Liability Insurance shall be primary and noncontributing with any insurance carried by Grantor
(and its agent).
12. Remedies. In addition to any and all other remedies available at law or in
equity, the following remedies shall be available:
a. Conservancy: Notice of Violation. If Conservancy determines
that Grantor or any other person or party is in violation of this Easement with respect to the
Conservation Easement Area or that a violation is threatened on the Conservation Easement
Area, Conservancy shall give written notice to Grantor (or such other party) thereof and request
action sufficient to cure or prevent the violation and, where such violation involves injury to an
area resulting from any use or activity inconsistent with the provisions of this Easement, to
restore the protection or condition of the area so injured.
b. Cure by Conservancy. If Grantor (or such other party) fails to cure
the violation within thirty (30) days after receipt of notice thereof (or, if such violation cannot be
cured within such time, if such party fails to begin curing the same within the aforesaid thirty
(30) day period and thereafter fails to continue diligently to cure such violation until finally
cured), Conservancy may:
CAwindox \TEMP\7jtp06!.dm
(1) Action to Enforce. Bring an action in law to enforce the
restoration of that portion of the Conservation Easement Area affected by such activity to the
condition that existed prior to the undertaking of such unauthorized activity; and/or
(2) Restoration. Enter upon the Conservation Easement Area
and restore that portion thereof affected by such activity to the condition that existed prior to the
undertaking of such activity; provided, such action by Conservancy shall not prejudice any
subsequent judicial proceeding nor shall such improvement preclude Conservancy from
obtaining reimbursement for the restoration costs.
C. Enforcement by Grantor. Grantor, any "Successor Grantors" (as
defined below) and their successors shall have the right to enforce by proceedings at law or in
equity, all restrictions, conditions, covenants and reservations, now or hereafter imposed by the
provisions of this Easement or any amendment thereto, including the right to specific enforcement
and otherwise to prevent the violation of any such restrictions, conditions, covenants or conditions
and any right to be indemnified hereunder (in accordance with the terms and conditions hereof);
provided, Grantor shall not have the right to terminate this Easement. Grantor may assign any of its
rights and powers under this Easement to any other person or entity so long as such person or entity
in writing agrees to assume the duties of Grantor pertaining to the particular rights and powers
assigned; and, upon the recordation of such writing accepting such assignment and assuming such
duties, such assignee (the "Successor Grantor"), to the extent of such assignment, shall have the
same rights and powers and be subject to the same obligations and duties as are given to and
assumed by Grantor herein and Grantor shall be released and relieved of such rights and obligations.
13. Notices.
a. Delive . Any notice called for, required or delivered under this
Easement shall be sent by hand delivery or by registered or certified US mail to the address set
forth below; provided, any such address may be changed to such other address as such party may
inform the other of from time to time in writing; and notice shall be deemed to be received on the
date evidenced by hand delivery, registered mail or certified mail receipt:
Grantor: DMB Ladera, LLC
c/o Rancho Mission Viejo, LLC
P.O. Box 9
San Juan Capistrano, California 92693
Conservancy: The Ladera Land Conservancy
c/o Rancho Mission Viejo, LLC
P.O. Box 9
San Juan Capistrano, California 92693 _
RMV: Rancho Mission Viejo, LLC
P.O. Box 9
San Juan Capistrano, California 92693
County: Director
Planning and Development Services Department
CAwindow \TEMP\3jtp06!.doc 10
P.O. Box 4048
Santa Ana, California 92702
and
Director
Public Facilities and Resources Department
P.O. Box 4048
Santa Ana, California 92702
b. Notice of Request. Whenever express agreement, consent or other
action is required, desired or requested under the terms and conditions of this Easement by or
from Grantor, Conservancy, County, RMV or any other person or party, the initiating party shall
give written notice and detailed information to the other party by registered or certified mail.
The receiving party shall have thirty (30) days from the receipt of such first notice to review the
proposed activity and to notify the initiating party of any objections thereto; provided, (i) upon
the failure of the initiating party to receive any response thereto from the party to whom such
notice was directed within such thirty (30) days of the forwarding of said first notice, then such
initiating party shall thereafter give a second written notice (which shall contain the same
information as the first such notice — or otherwise include the first such notice -- and state that
the same is the second such notice) and (ii) the failure of such party to whom said notice was
directed to object to any of the terms and/or conditions provided therein within thirty (30) days
of the forwarding of said second notice shall. constitute consent to the proposed activity. No
agreement or consent with respect thereto shall be unreasonably withheld, conditioned or
delayed; and any objections to activities proposed by such notice shall be set forth in a written
response to any such notice. Permission to carry out, or failure to object to, any proposed use or
activity shall not constitute consent for any subsequent use or activity of the same or a different
nature.
14. Assi m nt. This Easement anu the rights granted to Conservancy
hereunder are "easements in gross" and are therefore personal to Conservancy; and the same are
not assignable and may not be assigned to any person, entity or governmental body without
Grantor's prior written consent (which may be withheld in Grantor's sole discretion); provided,
(i) Conservancy may assign this Easement and the rights and obligations hereunder to a regional
conservation plan entity or to any entity in conformance with an NCCP-approved plan of
conservation with Grantor's reasonable consent and (ii) in the event that Conservancy dissolves
and if Conservancy fails to assign the same to a regional conservation plan entity or to any entity
in conformance with an NCCP-approved plan of conservation or to offer this Easement to
County, this Easement shall thereupon become the property of and vested in County without the
necessity of recording any further instrument of conveyance so long as County accepts the same
in a written instrument.
15. Indemnity. Conservancy shall save, indemnify and hold harmless Grantor
(and all of their officers, directors, stockholders, partners, members, agents, representatives,
managers and employees, including RMV) against any liability, loss, cost, damage and expense
caused by or arising from (i) an act(s) or omission(s) of Conservancy, its employees, agents,
contractors, licensees, permitees, successors and assigns, (ii) the construction, location and
CAWindow \TEMNj tp06!.dc : I I
existence of any improvements owned by Conservancy, whether defective or otherwise,
including, but not limited to, any loss, cost, damage, liability and expense arising from damage to
or destruction of injury to or death of any person and/or (iii) any exercise of the Permitted Use by
or on behalf of or otherwise derived from Conservancy.
16. Condemnation. In the event of any condemnation or sale of the
Conservation Easement Area or any property encumbered thereby or otherwise subject thereto,
Grantor shall be entitled to all of the condemnation proceeds attributable thereto or otherwise
arising therefrom,
17. Sale of Fee or Similar Interest.
a. General. Grantor may transfer its fee interest in the property
encumbered by or otherwise subject to this Easement, by sale, assignment or otherwise, in the
sole and absolute discretion of Grantor, including, without limitation, to any entity in
conformance with an NCCP-approved plan of conservation.
b. Transfer to Conservancy. To the extent permitted by applicable
law, Grantor shall have the right to quitclaim to Conservancy the fee interest in the property
encumbered by or otherwise subject to this Easement (and otherwise in a manner to preserve the
policies, covenants, conditions and protections of this Easement) while concurrently reserving
easements and such other then -existing interests in order to continue existing uses permitted to
Grantor hereunder.
C. Transfer to County. In the event that Conservancy is in material
default under the terms and conditions of this Easement as set forth under Section Lb of this
Easement on or after the date which is twenty (20) years after the date the Development
Agreement was first recorded, then the County shall have the right to cause Grantor and
Conservancy to transfer fee title and all right, title and interest under this Easement to the County
for those portions of the Conservation Easement Area over which this Easement has been
recorded and otherwise such that the condition of title to such property shall be acceptable to the
Director, Public Facilities and Resources Department and shall be delivered subject only to such
title exceptions and encumbrances which are consistent with the Enumerated Reserved Rights,
the NCCP or, in the absence thereof, an HCP.
d. Credits and Mitigation Rights. Except as previously granted to
County for purposes of mitigating the impacts of the construction of Antonio Parkway, Grantor
may transfer, by sale, assignment or otherwise, in the sole discretion of Grantor, any credits or
similar rights associated with the property encumbered by or otherwise subject to this Easement
in order to offset impacts of development under Federal, State and/or local endangered species or
similar laws and/or regulations or otherwise to satisfy any Mitigation Action so long as the same
does not materially interfere with the Permitted Use and is otherwise in compliance with Section
5.1 of this Easement. Unless otherwise provided under a NCCP-approved plan of conservation
enacted subsequent to the date hereof with respect to all or any portion of the Conservation
Easement Area expressly applicable thereto, Grantor shall have the exclusive right to determine
the price and any other consideration or conditions concerning any such transfer and shall be
CAwindow \iEMP\3jtpO6!.dm 12
entitled to all such consideration derived or otherwise arising therefrom (and Conservancy shall
not be entitle to any portion of the same).
18. Covenant Running With Land. The easements and covenants contained
herein are (i) imposed upon the property encumbered by or otherwise subject to this Easement,
(ii) shall run with and against the same and shall be a charge and burden thereon for the benefit
of Conservancy and/or the current holder of this Easement and (iii) are perpetual and irrevocable.
19. Waiver of Jury Trial. THE PARTIES HERETO EXPRESSLY AND
KNOWINGLY WAIVE AND RELEASE ALL SUCH RIGHTS TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY PARTY AGAINST
THE OTHER ON ANY MATTERS ARISING OUT OF OR IN ANY WAY CONNECTED
WITH THIS EASEMENT, THE USE OF THE OPEN SPACE EASEMENT AREA OR ANY
ADJOINING PROPERTY AND/OR ANY CLAIM FOR INJURY OR DAMAGE WITH
RESPECT THERETO.
20. No Rights in General Public. Nothing herein contained shall be deemed to
be a gift or dedication of any portion of the Conservation Easement Area or any of the property
encumbered thereby or otherwise subject thereto to or for the general public; and the parties
hereto and any other entity otherwise obtaining any interest herein acknowledge the intention
that this Easement shall be strictly limited to and for the purposes herein set forth.
21. Amendment Inconsistency. Except as expressly hereinafter provided, this
Easement may be modified only by written instrument executed by the record owner of the
property encumbered hereby, the then -holder of this Easement and County (as determined by the
Director of Planning and Development Services in consultation with the Director of Public
Facilities and Resources Department) and, in each event, provided that such modification is
otherwise consistent with the terms, policies and goals hereof. Notwithstanding the foregoing
to the contrary, Grantor shall have the unilateral right (without the consent or approval of
any party, beneficiary or other person) to ameud or others, ise revise this Easement (except
for Section 17.c hereof) in order to conform the same, or otherwise to be consistent, with
the NCCP or, in the absence thereof, a HCP: and, in the event of any inconsistency between
this Easement and the NCCP, the NCCP (or, in the absence thereof, a HCP) shall control.
22. Miscellaneous. This Easement shall be binding on the successors, assigns
and legal representatives of each of the parties Hreto. This Easement represents the entire
agreement between the parties hereto and supersedes all prior negotiations, representations or
agreements, either written or oral. Time is of the essence of each provision of this Easement.
This Easement shall be governed by and construed in accordance with the laws of the State of
California. If any suit or action is brought to enforce or construe any provision of this Easement,
the prevailing party shall be entitled to recover its costs and expenses arising out of such
litigation, including attorneys' fees and court costs, from the non -prevailing party; and each party
hereto waives any and all rights to a trial by jury with respect to any dispute or action hereunder
or otherwise to enforce or construe this easement. No delay on the part of any party hereto in
exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any
waiver on the part of any party hereto of any right, power or privilege hereunder operate as a
waiver of any other right, power or privilege hereunder, nor shall any single or partial exercise of
CAwindo"\TEMP\3jtp06!.dw 13
any right, power or privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder. If any provision of this Easement or
the application of any such provision shall be held by a court of competent jurisdiction to be
invalid, void or unenforceable to any extent, the remaining provisions of this Easement and the
application thereof shall remain in full force and effect and shall not be affected, impaired or
invalidated. This Easement may be executed in two or more counterparts, which shall, in the
aggregate, be deemed executed by all parties.
23. Third Party Beneficiary. The County shall be deemed, and is hereby, a
third party beneficiary of this Easement.
IN WITNESS WHEREOF, Grantor and Conservancy have executed this
Easement as of the _ day of December, 1998.
"Grantor"
DMB LADERA, LLC,
a Delaware limited liability company
By: Rancho Mission Viejo, LLC,
a Delaware limited liability company,
as agent and mana er
By: -
Donald L. odra,
r in icer
By:
Richard Broming,
Vice President
"Conservancy"
THE LADERA LAND CONSERVANCY,
0
0
APPROVED AS TO FORM:
Thomas B. Mathews,
Director, Planning and Development Services Department,
County of Orange
CAwindows\TEMP\3jtp06!.da 14
STATE OF CALIFORNIA
COUNTY OF ORANGE
On NOVEMBER 23, 1998 before me, TINA T. BAKER, Notary Public, personally
appeared RICHARD BROMING and TOM STALEY, personally known to me to be the
persons 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 persons, or the entity upon behalf of which the persons acted, executed the
instrument.
WITNESS my hand and official seal.
jvri
Signature of Notary
STATE OF CALIFORNIA
COUNTY OF ORANGE
On NOVEMBER 23, 1998 before me, TINA T. BAKER, Notary Public, personally
appeared DONALD L. VODRA and RICHARD BROMING, personally known to me to be
the persons 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 persons, or the entity upon behalf of which the persons acted, executed the
instrument.
WITNESS my hand and official seal.
jj' ., J.
Signature of Notary
I
HU ITF ZOLLARS �-
Huitt-2ollars. Inc. 1 15101 Red Hill Avenue 1 Tustin. Calita nia 92700-65001 Phone (714) 259-7900/FU(714)259-0210
10-0367-10(A)
10-01-98
Revised
11-16-98
LADERA OPEN SPACE DEDICATION
PHASE 1
Those portions of Parcel 2 of Lot Line Adjustment LL 96-026, in the Unincorporated Territory of
the County of Orange, State of California, recorded November 21, 1996 as Instrument No.
19960587414 of Official Records in the office of the County Recorder of said County, described
as follows:
Parcel A:
Beginning at the Northeasterly corner of said Parcel 2; thence along the Westerly line of said
Parcel 2, the following courses: South 18037`25" West 430.00 feet, South 13050'25" East
1495.51 feet, South 32141'47" West 766.05 feet, and South 25050'45" East 711.76 feet; thence
leaving said Westerly line South 86°08'33" West 494.77 feet to the general Easterly line of Parcel
1 of said Lot Line Adjustment LL 96-026, said point being the beginning of a non -tangent curve
concave Northerly having a radius of 3000.00 feet, a radial line of said curve to said point bears
North 7°15'58" West; thence along said general Easterly line, the following courses: Westerly
243.64 feet through a central angle of 4°39'11", North 5°01'10" West 1323.46 feet, and South
74004'22" West 834.44 feet to the Easterly right of way of Antonio Parkway as described in that
certain document recorded April 30, 1998 as Instrument No. 19980260407 of said official
records, said point being the beginning of a non -tangent curve concave Southwesterly having a
radius of 2162.00 feet, a radial line of said curve to said point bears North 65°56'17" East thence
along said Easterly right of way of Antonio Parkway, the following courses: Northwesterly
730.50 feet along said curve through a central angle of 19°21'33", North 43°25'16" West 400.00
feet to the beginning of a tangent curve concave Northeasterly having a radius of 1738.00 feet,
and Northerly 1689.32 feet along said curve through a central angle of 55°41'27" to the Northerly
line of said Parcel 2; thence leaving said right of way Antonio Parkway and along the Northerly
line of said Parcel 2, the following courses: South 41°43'07" East 216.00 feet, and South
85°42'35" East 2515.63 feet to the point of beginning.
EXCEPTING therefrom that portion of said Parcel 2, described as follows:
Commencing at the Southeasterly terminus of that certain course shown as having a
bearing and distance of "N 41 °43'07" W 1149.65' " for a portion of the general Northerly
line of Parcel 2; thence North 41 °43'07" West 26.96 feet along said general Northerly
line to the TRUE POINT OF BEGINNING; thence continuing along said general
Northerly line North 41'43'07" West 189.04 feet to the Easterly right of way of Antonio
Parkway as described in that certain document recorded April 30, 1998 as Instrument No.
19980260407 of said Official Records, said point being the beginning of a non -tangent
curve concave Easterly having a radius of 1738.00 feet, a radial line of said curve to said
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LADERA OPEN SPACE DEDICATION
PHASE 1
PAGE 2
10-0367-10(A)
'0-01-98
evised
11-16-98
point bears North 77°43'49" West; thence along said Easterly right of way, the following
courses: Southerly 1689.32 feet along said curve through a central angle of 55041'27",
South 43°25'16" East 400.00 feet to the beginning of a tangent curve Southwesterly
having a radius of 2162.00 feet, and Southerly 730.50 feet through a central angle of
19021'33" to the general Easterly line of Parcel 1 of said Lot Line Adjustment LL 96-026;
thence leaving said Easterly right of way line of Antonio Parkway North 74°04'22" East
78.76 feet along said general Easterly line to the beginning of a non -tangent curve
concave Southwesterly having a radius of 2240.00 feet, a radial line of said curve to said
point bears North 66°13'24" East; thence Northwesterly 768.00 feet along said curve
through a central angle of 1938'40"; thence North 43°25'16" West 400.00 feet to the
beginning of a tangent curve concave Easterly having a radius of 1660.00 feet; thence
Northerly 1451.87 feet along said curve through a central angle of 50°06'44'; thence
North 80°54'23" East 45.82 feet; thence North 48016'53" East 41.46 feet to the true point
of beginning.
Containing an area of 124.675 acres, more or less.
Subject to covenants, conditions, reservations, restrictions, rights of way and easements, if any, of
record.
Parcel B:
Commencing at the Southerly terminus of that certain course shown as "N 13°00'19" W
1822.23' " for a portion of the Westerly line of said Parcel 2; thence North 13'00'19" West 907.16
feet along the Westerly line of said Parcel 2; thence leaving said Westerly lin. South 76059'41"
West 426.07 feet to the TRUE POINT OF BEGINNING; thence South 343.�P9 Leet; uience West
253.55 feet; thence North 343.59 feet; thence East 253.55 feet to the true point of beginning.
Containing an area of 2.000 acres, more or less.
Subject to covenants, conditions, reservations, restrictions, rights of way and easements, if any, of
record.
Parcel C:
Commencing at the Southeasterly comer of said Parcel 2; thence West 1829.32 feet along the
Southerly line of said Parcel 2 to the Easterly right of way of Antonio Parkway as described in
that certain document recorded April 30, 1998 as Instrument No. 19980260407 oi'said official
records, said point being the beginning of a non -tangent curve concave Southwesterly having a
radius of 2412.00 feet, a radial line of said curve to said point bears North 70°08'23" East; thence
Northerly along said right of way 814.76 feet through a central angle of 19°21'15" to the TRUE
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LADERA OPEN SPACE DEDICATION
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POINT OF BEGINNING; thence leaving said Easterly right of way of Antonio Parkway North
51°52'09" East 925.42 feet; thence North 32000'08" West 116.75 feet; thence North 15°07'34"
West 1085.78 feet; thence North 34° 11'46" West 367.45 feet; thence North 20°05'33" East 845.96
feet; thence South 72044'29" West 138.42 feet; thence South 76010'38" West 264.59 feet; thence
South 57°05'22" West 250.00 feet; thence North 32°54'38" West 530.00 feet; thence North
37005'22" East 400.00 feet; thence North 200.00 feet; thence North 57°05'29" West 230.00 feet;
thence South 39°42'31" West 961.05 feet; thence South 27°56'45" East 787.11 feet; thence South
4900624" West 102.53 feet; thence South 24°3559" East 501.79 feet; thence South 59058'17"
West 474.91 feet; thence South 49°38'57" West 219.47 feet to said Easterly right of way of
Antonio Parkway, said point being the beginning of a non -tangent curve concave Northeasterly
having a radius of 2288.00 feet, a radial line of said curve to said point bears North 64°42'53"
East; thence along said Easterly right of way of Antonio Parkway, the following courses:
Southeasterly 671.75 feet along said curve through a central angle of 16°49'18", South 4210625"
East 914.94 feet to the beginning of a tangent curve concave Southwesterly and having a radius
of 2412.00 feet, and Southerly 121.77 feet along said curve through a central angle of 2°53'34" to
the true point of beginning.
Containing an area of 75.637 acres, more or less.
Subject to covenants, conditions, reservations, restrictions, rights of way and easements, if any, of
record.
m/ Nsn/16dl69-00 /1/ph+acl/�'d/rk
SHEET 1 OF 3
P.O.B.
NE'LY CORNER PCL. 2
N77'43'49"W
---------------
26.96"
RAD.
N80'54'23"E
N85'42'35"W
2515.63'
45.82'
P•O.C. EXCEP710N
Ny
GENERAL N"LY
47 876•
46. S3
LINE PCL. 2
�
F
122'
p=50'06'44"
R=1660.00'
�g
L=1451.87'
A = 55'41'27"
R = 1738.00' �h0
�ti
' % �•i
L = 1689.32'
EXCEPTION
N43'25'16"W
PARCEL A
AREA
400.00'
124 675
N43'25'16"W
400.00'
!'N = 19'21'33"
R = 2162.00'
L = 730.50' \
E'LY R/W ANTONIO PARKWAY
PER INST. NO.19980260407 O.RB3�
N 65'56' 17"E
.. J
L
N0. 5557 v o
a EXP. 9/30/01
or cµo
SC.
A = 19'38'40"
R = 2240.00'
L = 768.00'
RAD. ! �1 GENERAL
N66'13'24_E J' I E'LY LINE —
RAD. PCL. 1
I;
I�
<;; p = 4'39'11"
0, / R = 3000.00
L = 243.64'
N18*37'25"E
430.00'
rr
r�
m
N86'08'33" F
494.77
Hi iIT T^ r 7Or L� SKETCH TO ACCOMPANY "" 1 "=600"
(� U 1 1 l L L A LEGAL DESCRIPTION weAm By JRD
Huitt-Zolars, Inc. UTECKED er
15101 Red Hl Avenue, Tustin, CA 92780 P���a �AJFG
�p
(714) 259-0900 OMW SPACE DATE
Avco 10/1/98
DIe�VA:Zv4 MV — PHASE 1 av ma
10-0367-10
G:\10036710\EX\EX036721.0WG
SHEET 2 OF 3
() = RECORD PER LL96-026
PARCEL B 2000 ac.
i i ITF —ZOLL RS
Hultt-Zollsrs, Inc.
15101 Rad KU Avenue, Tustin. CA 92780
(714) 2W-7000
P.O.C.
SKETCH TO ACCOMPANY
A LEGAL DESCRIP71ON
PAACM B
LADE RA OPEN SPACE
DEMATM - PHASE f
1---.300' 1
,x va
10-0367-10
G. \10036710\EX\EXOJ61LI.uw�
4-
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r
Z
-o
0-
0
c
EAST
N� 426.0
253.55'
-
%S
T. P. O. B.
=m
a co
ty
O .
it !\
to
l/
EAST
253.55'
�iiJ
o
() = RECORD PER LL96-026
PARCEL B 2000 ac.
i i ITF —ZOLL RS
Hultt-Zollsrs, Inc.
15101 Rad KU Avenue, Tustin. CA 92780
(714) 2W-7000
P.O.C.
SKETCH TO ACCOMPANY
A LEGAL DESCRIP71ON
PAACM B
LADE RA OPEN SPACE
DEMATM - PHASE f
1---.300' 1
,x va
10-0367-10
G. \10036710\EX\EXOJ61LI.uw�
62
N49'06'24"E
\\102.53'-
x \
02.53'\\ Arcp.
rn s�
A,
V
N57'05'29"W
230.00'
'A/ NORTH
200.00'
®� N76'10'38"E
// 2.64.59'
59.
PARCEL C
75.637 ac.
N59'58'17"E
474.91'
= 16'49'18" c
R = 2288.00'
L = 671.75' <S' J'
E'LY R/W
ANTONIO PARKWAY Ashy �e'
INST. NO. 19980260407 O.R.
Q7 0 = 2'53'34"
R = 2412.00'
L = 121.77'
02
N57'05'22"E
03
N32'54'38"W
®
N37'05'22"E
250.00' L = 19'21'15"
R = 2412.00'
530.00' L = 814.76'
400.00' N70_08'23"E
RAD.
HUITT~ZOLLARS
Hunt-Zolars, Inc.
15101 Red Hill Avenue, Tustin, CA 92780
(774) 259-7900
N 72'44' 29"E
138.42'
N34'11'46"W
367.45'
SHEET 3 OF 3
32'00'08"W
116.75'
S'LY LINE PCL. 2
P.O.C.
rSE'LY CORNER PCL
EAST -1829.32'
SKETCH TO ACCOMPANY
A LEGAL DESCRIPTION
tae ma
10-0367-10
G. \10036710\EX\EX036721.DWG
Exhibit G
RECORDING REQUESTED BY:
DMB Ladera, LLC,
a Delaware limited liability company
WHEN RECORDED, MAIL TO:
Brobeck, Phleger & Harrison LLP
38 Technology Drive
Irvine, California 92618
Attention: Bryan Ngo, Esq.
DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS
(Stoneridge Development)
By and Between
DMB LADERA, LLC,
a Delaware Limited Liability Company,
as "Ladera"
and
STONERIDGE OWNERS (as defined herein)
Effective Date: ,
C;\windows\TEMP\Stoneridge CCR(owmer)2.doc
DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS
(Stoneridge Development)
THIS DECLARATION OF COVENANTS, CONDITIONS AND
RESTRICTIONS (the "Declaration") is made this _ day of
by and between DMB LADERA, LLC, a Delaware limited liability company, its successors and
assigns ("Ladera") and the Stoneridge Owners.
THIS DECLARATION is based upon the following facts, intentions and
understandings:
(a) Ladera is the master developer of the Ladera Ranch planned community in
accordance with the Ladera Development Agreement recorded January 17, 1997 in the Official
Records of Orange County, California as Instrument No. 19970027386 ("Development
Agreement").
(b) In furtherance of the Development Agreement, Ladera intends to dedicate
certain portions of Parcel 2 of Lot Line Adjustment LL 96-026 (the "Adjacent Property") in the
unincorporated territory of the County of Orange, State of California, as shown on exhibit "B"
attached to that certain document recorded on November 11, 1996 as Instrument No.
19960587414 in the official records of said county, for open space and other purposes in
accordance with the Development Agreement and an open space agreement with the County of
Oru..ac.
(c) SC is a California non-profit mutual benefit corporation whose members
are the Stoneridge Owners who own residential properties in the Stoneridge development
("Stoneridge Properties") located in the City of San Juan Capistrano as more particularly
described in Exhibit A attached hereto.
(d) The Stoneridge Owners have experienced land subsidence problems on
the Stoneridge Properties. In order to assist the Stoneridge Owners and SC in curing the land
subsidence problems on the Stoneridge Properties ("Land Subsidence Problem"), the City has
indicated a desire and intention to acquire, via condemnation or transfer in lieu of condemnation,
certain property (the "Property") more particularly described in Exhibit B attached hereto
which is adjacent to the Stoneridge Properties and is currently a part of the Adjacent Property.
(e) In lieu of compelling the City to condemn or otherwise take the Property
by means of eminent domain, Ladera has indicated a desire to acquiesce to the transfer of the
Property to the City.
(f) Upon receipt of title to the Property, the City intends to convey the
Property to SC in order to permit SC to perform the necessary work (the "Repair') to rectify the
Land Subsidence Problem.
(g) In order to decrease the costs and expenses of the Repair, SC and the
Stoneridge Owners have requested that Ladera permit SC to utilize another portion of the
Adjacent Property (the "Stockpile Area") described on Exhibit C attached hereto to serve as the
designated area for stockpiling dirt and other related uses during the Repair.
(h) The Plans (as defined in the Land Transfer Agreement) for the Repair are
hereby incorporated by reference; provided, the City shall be responsible for reviewing and
approving the Plans and Ladera shall have no responsibility with respect thereto and/or the
adequacy of the Repair inasmuch as Ladera does not believe that the Stoneridge Properties
should have been developed due to the inherent soil problems in this area.
(i) The parties agree that no action or inaction of the current or prior land
owner(s), including Ladera, and/or their agents, including Rancho Mission Viejo, LLC, has
contributed to the condition of the Property or the necessity of the Repair.
0) The parties intend that, upon completion of the Repair and the satisfaction
of all of the conditions as set forth in the Land Transfer Agreement, the portion of the Property
abutting each of the Stoneridge Properties shall become the property of each of the respective
Stoneridge Owners.
(k) Ladera and Stoneridge Owners desire to subject the Property to this
Declaration setting forth certain obligations owing to Ladera from the Stoneridge Owners
concerning the activities of the Stoneridge Owners in connection with the use of the Property for
the purpose of (i) enhancing and protecting the value, desirability and attractiveness of the
Property, (ii) protecting and defending Ladera from any claim:: - - liab�! that may arise from
the use of the Property by the Stoneridge Owners, and (iii) preventing any disturbance or impact
to the Adjacent Property caused by the manner of use of the Property by the Stoneridge Owners.
NOW, THEREFORE, Ladera and Stoneridge Owners hereby covenant, agree and
declare that all right, title and interest of Ladera with respect to the Property shall be held and
conveyed subject to the following covenants, conditions and restrictions; these covenants,
conditions and restrictions shall run with the Property until released as provided herein and shall
be binding upon all parties having or acquiring any right or title in the Property or any part
thereof and shall inure to the benefit of Ladera and are imposed upon the Property as a servitude
in favor of the Adjacent Property owned by Ladera as the dominant tenement or tenements.
1. DEFINED TERMS. The following terms shall have the meaning set
forth thereafter:
(1) "Applicable Laws" mean all present and future federal, state or local
laws, ordinances, rules, regulations (whether under common law, statute, rule, regulation or
otherwise), permits, orders and any other requirements of governmental authorities and agencies
having proper jurisdiction.
(2) "Ejjy" means the City of San Juan Capistrano, a municipal corporation.
(3) "Coun " means, if the context denotes a location, Orange County,
California, and, if the context denotes an entity, the County of Orange, a political subdivision of
the Sate of California.
(4) "Ladera" means DMB Ladera, LLC, a Delaware limited liability
company, its successors and any person or entity to whom Ladera assigns its rights under this
Declaration.
(5) "Land Transfer Agreement" means that certain land transfer agreement
dated 1999 by and between Ladera, SC and Stoneridge Owners.
(6) "Open Space Conservation Easement Agreement" means that certain
open space conservation easement agreement by and between Ladera and The Ladera Land
Conservancy, a California non-profit corporation, a copy of which is attached hereto as Exhibit
D.
(7) "Person" means any individual, partnership, corporation, limited liability
company, trust or other entity to which reference is made under this Declaration.
(8) "Restrictions" mean the covenants, conditions, restrictions and other
limitations set forth in this Declaration.
(9) "SC" means S.C. Slide, Inc., a California non-profit mutual benefit
corporation, consistin. ,f individual owners who own individual residential properties in the
Stoneridge development located in the City.
(10) "Stoneridge Owners" mean means the following persons:
who own the Property or portion thereof or interest in the Stoneridge development located in the
City of San Juan Capistrano and who are or shall become members of SC;
(11) "Stoneridge Properties" mean those residential properties within the
Stoneridge development which are owned by the Stoneridge Owners and which are more
particularly identified and described on Exhibit A attached hereto.
1. DECLARATONS. Ladera and Stoneridge Owners hereby covenant,
agree and declare the following:
(a) The Property shall be subject to the terms, conditions and
covenants of that certain Open Space Conservation Easement Agreement;
(b) Stoneridge Owners shall not construct any structures or
improvements on the Property without the prior written consent of Ladera, which consent shall
not be unreasonably withheld;
(c) Stoneridge Owners shall preserve, maintain and protect the open
space within the Property and shall comply with any and all fuel modification requirements in
the use of the Property in accordance with Applicable Laws; and
(d) Stoneridge Owners shall not use the Property in any manner which
shall impact or disturb the Adjacent Property, including but not limited to, subjecting the
Adjacent Property to any fuel modification requirements under Applicable Laws.
2. RELEASE OF LADERA AND RMV.
Stoneridge Owners hereby release and forever discharge Ladera and Rancho
Mission Viejo, LLC, a Delaware limited liability company ("RMV"), together with each
member of Ladera and RMV and any affiliated or subsidiary partnership, limited liability
company and/or corporation and their collective officers, directors, shareholders, employees,
agents, attorneys, insurers and partners (collectively "Ladera Indemnitees") of and from any
and all actions, causes of action, claims, rights, demands, debts, liens, damages, obligations,
liabilities, costs, expenses, fees, including, without limitation, attorneys' fees, breach of contract,
acts, charges or accountings of any nature whatsoever, whether known or unknown, fixed or
contingent, which Stoneridge Owners have or may hereafter have against any of the same arising
out of or related to and prior, current or future condition on, about, under or otherwise affecting
the Property, the Adjacent Property, the Stockpile Area and/or of the Stoneridge Properties,
including as intended to be addressed by the Repair (and any condition of the Property and/or the
Stoneridge Properties necessitating the same) or otherwise caused thereby (collectively, the
"Condition"). Stoneridge Owners agree and represent that they may have claims against one or
more of the Ladera Indemnitees of which they have no knowledge at th., ,..nz of the execution of
this Agreement, but that this Agreement is specifically intended to and does extend to any and all
claims in any way based upon, connected with, or related to the Condition and all actions taken
in connection therewith, including the negotiation of this Agreement, whether known, or
unknown, claimed or suspected as of the date of the execution of the Agreement. As further
consideration and inducement, Stoneridge Owners hereby waive the provision of California Civil
Code § 1542, which provides as follows:
A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have materially
affected the settlement with the debtor.
3. RELEASE OF THE CITY. Stoneridge Owners hereby release and
forever discharge the City, together with its council members, staff, employees, (collectively
"City Indemnitees") of and from any and all actions, causes of action, claims, rights, demands,
debts, liens, damages, obligations, liabilities, costs, expenses, fees, including, without limitation,
attorneys' fees, breach of contract, acts, charges or accountings of any nature whatsoever,
whether known or unknown, fixed or contingent, which Stoneridge Owners have or may
hereafter have against any of the same arising out of or related to the Condition. Stoneridge
Owners agree and represent that they may have claims against one or more of the City
Indemnitees of which they have no knowledge at the time of the execution of this Agreement,
but that this Agreement is specifically intended to and does extend to any and all claims in any
way based upon, connected with, or related to the Condition and all actions taken in connection
therewith, including the negotiation of this Agreement, whether known or unknown, claimed or
suspected as of the date of the execution of the Agreement. As further consideration and
inducement, Stoneridge Owners hereby waive the provision of California Civil Code § 1542,
which provides as follows:
A general release does not extend to claims which the creditor does not know or
suspect to exist in his favor at the time of executing the release, which if known by him
must have materially affected the settlement with the debtor.
4. INDEMNITY.
Stoneridge Owners shall indemnify and hold harmless Ladera, Ladera
Indemnitees, the City and any other City Indemnitees from and against any liability, loss,
damage, injury or claim of any kind or character to any person or property caused by or relating
to, with or without fault, and arising from any of the following (and the phrase "if and to the
extent it affects" the Condition and/or the Property and/or Adjacent Property, including the
Stockpile Area, or words to that effect shall mean if and to the extent it affects, arises out of or
relates to the Condition, the Property and/or Adjacent Property, including the Stockpile Area, or
any improvement constructed thereon):
a. The failure to perform the Repair or otherwise correct the
Condition in accordance with the Plans (as defined in the Land Transfer
Agreement) and the requirements of applicable law and regulations and the
generally accepted standards of such profession or similar services required
thereby;
b. Any acts or omissions of Stoneridge Owners, SC or the agents or
representatives of Stoneridge Owners and/or SC in the performance of the Repair
or associated work or services;
C. The breach by SC and/or any Stoneridge Owners of any of their
obligations under this Agreement, including any violation or alleged violation by
of any applicable law; and
d. Any damage, liability, fine, penalty, punitive damages, costs or
expenses arising from or out of the presence or existence of any hazardous
substances in, on or about the Property and/or Adjacent Property, including the
Stockpile Area, or any surrounding land arising from the Repair, the Condition
and/or Owners' or SC's acts or omissions with respect thereto, including any
claim, action, suit or proceeding for personal injury (including sickness, disease or
death), tangible or intangible property damage, compensation for lost wages,
business income, profits or other economic loss, damage to the natural resources
or the environment, nuisance, pollution, contamination, leak, spill, release or other
adverse effect upon the environment arising from the act or omission of SC or
Stoneridge Owners in the performance of the Repair.
5. ENFORCEMENT.
a. General. Ladera and the "Successor Ladera" (as that term is
defined below) and their successors alone shall have the right to enforce by proceedings at law or
in equity, all restrictions, conditions, covenants and reservations, now or hereafter imposed by
the provisions of this Declaration or any amendment thereto, including the right to prevent the
violation of any such restrictions, conditions, covenants or reservations and the right to recover
damages or other dues for such violation. Failure by Ladera to enforce any covenant, condition,
or restriction herein contained in any certain instance or on any particular occasion shall not be
deemed a waiver of such right on any future breach of the same or any other covenant, condition
or restriction by Stoneridge Owners. All rights, options and remedies of Ladera under this
Declaration are cumulative; and no one of them shall be exclusive of any other; and Ladera shall
have the right to pursue any one or all of such rights, options and remedies or any other remedy
or relief which may be provided by law, whether or not stated in this Declaration.
b. Successor Ladera. Ladera may assign any of its rights and powers
under this Declaration to any other person or entity so long as such person or entity in writing
agrees to assume the duties of Ladera pertaining to the particular rights and powers assigned;
and, upon the recordation of such writing accepting such assignment and assuming such duties,
such assignee (the "Successor Ladera"), to the extent of such assignment, shall have the . -.ne
rights and powers and be subject to the same obligations and duties as are given to and assumed
by Ladera herein and Ladera shall be released and relieved of such rights and obligations. If and
to the extent specifically assigned in writing as provided in this subsection, the Successor Ladera
shall be a third party beneficiary of this Declaration.
6. CAPTIONS. The captions used herein are for convenience only and are
not a part of this Declaration and do not in any way limit or amplify the terms and provisions
hereof.
7. GOVERNING LAW AND VENUE. This Declaration shall be governed
by and construed under the laws of the State of California. In the event of any legal action to
enforce or interpret this Declaration, the sole and exclusive venue shall be a court of competent
jurisdiction located in the County; and Stoneridge Owners shall submit to the jurisdiction of such
court.
8. ATTORNEYS' FEES. In the event any action shall be instituted in
connection with this Declaration, the party prevailing in such action shall be entitled to recover
from the other party all of its costs and expenses incurred therein, including without limitation
reasonable attorneys' fees.
9. SEVERABILITY. In the event that any portion of this Declaration shall
become illegal, null or void or against public policy, for any reason, or shall be held by any court
of competent jurisdiction to be illegal, null or void or against public policy, the remaining
portions of this Declaration shall not be affected thereby and shall remain in force and effect to
the full extent permissible by law.
10. GENDER AND NUMBER. In this Declaration (unless the context
requires otherwise), the masculine, feminine and neuter genders and the singular and the plural
include one another.
11. COVENANTS TO RUN WITH THE LAND; TERM.
a. Restrictions. The Property made subject to this Declaration from
time to time shall be held, developed, conveyed, hypothecated, encumbered, leased, rented, used
and occupied subject to the Restrictions. The Restrictions are intended and shall be construed as
covenants and conditions running with and binding such portions of the Property and equitable
servitudes thereupon and every part thereof; and all and each of the Restrictions shall be binding
upon and burden all persons having or acquiring any right, title or interest in such portions of the
Property (during their ownership of such interest), or any part thereof, and their successors and
assigns. Subject to the provisions in the immediately following subsection below, the
Restrictions shall inure to the benefit of the Adjacent Property referenced above, the Stoneridge
Owners thereof and their successors and assigns; and the Restrictions shall be enforceable by
Ladera and its successors and ace�gns, all upon the terms, provisions and conditions set forth
herein.
b. Term. This Declaration shall continue in full force and effect for a
term of sixty (60) years from the date the same is recorded in the Office of the County Recorder.
C. Termination. Notwithstanding the foregoing:
(1) Reacquired Property. This Declaration, together with the
Restrictions set forth or otherwise incorporated herein, shall, upon recordation in the Office of
the County Recorder of a notice of termination executed by Ladera, automatically terminate and
be of no further force or effect as to any portion of the Property reacquired by Ladera (as to
which Ladera has not assigned its rights and obligations hereunder to a Successor Ladera),
whether by grant deed, lot line adjustment or otherwise, but the Restrictions shall continue to
apply as to the remainder of the Property.
(2) Transferred Pronerty. In the event that any portion of the
Adjacent Property which has been made a benefitted or dominant tenement of this Declaration is
conveyed by Ladera to a third party (each Property thereof so transferred is hereinafter referred
to as a "Transferred Property"), the Restrictions shall cease to benefit such Transferred
Property unless Ladera expressly assigns to the transferee of the Transferred Property the
benefits of all or a portion of the Restrictions, either concurrently with conveyance of the
Transferred Property or at any time thereafter, in either case, by a recorded assignment document
executed by Ladera and specifically referencing this Declaration (and general references to
appurtenances or rights related to the acquired land will not suffice). Any merger of Ladera with
or into another entity or any acquisition of all or a portion of the equity of Ladera by a third party
will not be deemed a transfer of the Adjacent Property subject hereto triggering the applicability
of this subsection.
d. Assignees. Stoneridge Owners shall cause any person or entity
holding any interest in the Property subject hereto by, through or under Stoneridge Owners
(including, but not limited to, any trustee, beneficiary or mortgagee under a deed of trust or
mortgage executed by Stoneridge Owners and encumbering the Property or any part thereof or
interest therein) to execute or otherwise consent to this Declaration.
12. NOTICES. Any notice to be given or other document to be delivered by
any party to the other or others hereunder, and any payments from Stoneridge Owners to Ladera,
may be delivered in person to an officer of any party, or may be delivered by Federal Express,
private commercial delivery or courier service for next business day delivery or may be
deposited in the United States mail in the County of Orange, State of California, duly certified or
registered, return receipt requested, with postage prepaid, and addressed to the party for whom
intended as provided under the Land Transfer Agreement. Notice may also be given by
facsimile transmission ("Fax") to any party at the respective Fax number given above and
marked "RUSH - PLEASE DELIVER IMMEDIATELY," provided receipt of such transmission
shall be confirmed by follow-up notice within seventy-two (72) hours by another method
authorized above. Any party hereto may from time to time, by written notice to the other,
designate a different addresa which :..:;1 be substituted for the one above specified. If any notice
or other document is sem mail c,. ' )resaid, the same shall be deemed served or delivered
seventy-two (72) hours after the mailing thereof as above provided. Notice by any other method
shall be deemed served or delivered upon actual receipt at the address or Fax number listed in the
Land Transfer Agreement.
13. EFFECT OF DECLARATION. This Declaration is made for the
purposes set forth in the Recitals to this Declaration and Ladera makes no warranties or
representations, express or implied, as to the binding effect or enforceability of all or any portion
of this Declaration, or as to the compliance of any of these provisions with public laws,
ordinances and regulations applicable thereto.
14. RIGHTS OF MORTGAGEES.
a. No Impairment. The breach of any covenants, conditions or
restrictions herein contained shall not defeat, invalidate nor impair the obligation or priority of
any mortgage or deed of trust now or hereafter executed and constituting a lien upon the Property
or any portion thereof which is made in good faith and for value; provided, however, that any
party, including the holder of the mortgage or deed of trust, who acquires title through private or
judicial foreclosure, trustee's sale or deed in lieu of foreclosure (a "Foreclosure -Purchaser")
and all successors and assigns of such Foreclosure -Purchaser shall take title subject to all of the
covenants, conditions and restrictions contained in this Declaration.
b. Foreclosure -Purchaser. A Foreclosure -Purchaser shall not be
liable for damages arising from the breach of any covenants, conditions or restrictions performed
or which were to have been performed prior to the time such Foreclosure -Purchaser acquires title
to all or any portion of the Property; provided, such Foreclosure -Purchaser shall have until the
later of (i) six (6) months after acquisition of title to all or a portion of the Property or (ii) the
times reasonably required under the construction/inventory schedules contained in the applicable
development and acquisition agreements to commence or continue construction of improvements
and/or to repair or replace any improvements which were constructed in violation of any
requirements. The schedules and time for construction of improvements shall be extended as
reasonably necessary to be consistent with the foregoing sentence. Any improvements
commenced or continued by Foreclosure -Purchaser after acquisition of title to all or any portion
of the Property shall be diligently pursued once commenced and otherwise in accordance with
this Declaration.
15. WAIVER OF JURY TRIAL. LADERA AND STONERIDGE
OWNERS HAVE EACH ACKNOWLEDGED THAT IT HAS HAD THE ADVICE OF
COUNSEL OF ITS CHOICE WITH RESPECT TO RIGHTS TO TRIAL BY JURY UNDER
THE CONSTITUTIONS OF THE UNITED STATES AND THE STATE OF CALIFORNIA.
BOTH LADERA AND STONERIDGE OWNERS EXPRESSLY AND KNOWINGLY WAIVE
AND RELEASE ALL SUCH RIGHTS TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER PARTY AGAINST THE
OTHER ON ANY MATTERS ARISING OUT OF OR IN ANY WAY CONNECTED WITH
THIS DECLARATION, OWNERS' USE OR DEVELOPMENT OF THE PROPERTY,
ADJACENT PROPERTY OR ANY ADJOINING PROPERTY AND/OR ANY CLAIM FOR
INJURY OR DAMAGE.
[sienature aaize to follow]
IN WITNESS WHEREOF, the parties have executed this instrument the day and
year first hereinabove written.
"Ladera"
DMB LADERA, LLC,
a Delaware limited liability company
By: RANCHO MISSION VIEJO, LLC, a
Delaware limited liability company,
its agent and manager
Un
0
Donald L. Vodra,
Chief Operating Officer
Melissa M. Freese,
Vice President
"Stoneridge Owners"
10