05-1101_SJD PARTNERS, LTD._Agr Est. Soils Subs Remediation Prgrma
r
"RECORDING REQUESTED BY:
City of San Juan Capistrano
32400 Paseo Adelanto
Recorded in Official Records, orange County
San Juan Capistrano, CA 92675
Tom Daly, clerk -Recorder
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AND WHEN RECORDED, MAIL TO:
2005000903228 01:48pm 11109105
Margaret R. Monahan, City Clerk
211 109 Al2 35
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Ci of San Juan Capistrano
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32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Exempt from Recording Fees:
Gov Code 27383 & 6103
City of San Juan Capistrano
This Space for Recorder's Use Only
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Title of Document:
Jit
Agreement Establishing
Soils Subsidence Remediation Program
I
RECORDING REQUESTED BY:
City of San Juan Capistrano
WHEN RECORDED MAIL TO:
City of San Juan Capistrano
Attn: City Clerk
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Space above this line for Recorder's use only
AGREEMENT ESTABLISHING
SOILS SUBSIDENCE REMEDIATION PROGRAM
This Agreement Establishing Soils Subsidence Remediation Program and Reservation of
Easements ("Agreement') is entered into as of Ncgy k- \-)&,r \ , 2005, by and among SJD
Partners Ltd. ("Developer'), Pacifica San Juan Community Association ("Association') and the
CITY OF SAN JUAN CAPISTRANO ("City'), and pertains to that certain real property more
particularly described on Exhibit "A" attached hereto and incorporated herein by this reference
("Property').
RECITALS
This Agreement is made with reference to the following facts:
A. Developer is in the process of developing Tract Nos. 14196 and 15609 as a residential
project including open space lots ("Project's, in the City of San Juan Capistrano, County of
Orange, State of California.
B. On September 15, 1987, the City Council ("Council') of the City passed, approved
and adopted Ordinance No. 605 ("Original Ordinance'), requiring that certain residential
developments in the City include a Soils Subsidence Remediation Program. On November 15,
2002, the Council passed, approved and adopted Ordinance No. 869 ("Amended Ordinance'),
amending Title 9 of the San Juan Capistrano Municipal Code to add Section 9-3.545, entitled
"Soils Subsidence Remediation Program" and deleting Title 8, Chapter 10 of the San Juan
Capistrano Municipal Code as established by the Original Ordinance.
C. On June 16, 1992 and September 16, 2003, the Council passed, approved and adopted
Resolution Nos. 92-6-16-4 and 03-09-16-06, approving Tentative Tract Map Nos. 14196 and
156909, respectively, and certain other matters. The City has required, as part of the
conditions of approval for the Project, that Developer establish and the Association operate a
Soils Subsidence Remediation Program in compliance with Title 9, Section 9-3.545 of the
San Juan Capistrano Municipal Code. The City has also required the Developer and the
Association to enter into this Agreement Establishing Soil Subsidence Remediation Program.
This Agreement shall set forth the terms for the implementation by Developer of a Soil Subsidence
Remediation Program ("Soil Subsidence Remediation Program') with respect to Tract Nos.
14196 and 15609.
D. The Association is a California nonprofit mutual benefit corporation which will
own the common area lots within the Project and will serve as thehomeowners' association for
the Project.
E. In addition, Tracts 14196 and 15609 will be subject to the terms of that certain
Declaration of Covenants, Conditions, Restrictions For Pacifica San Juan Community Association
and Establishment of Delegate District No. 1(the "Declaration').
F. The parties hereto desire to enter into this Agreement as it relates to the Soils
Subsidence Remediation Program only (and not with respect to the "City Home Warranty
Program", as defined therein) and as it relates solely to the Project, to, among other things, more
clearly set forth the rights and obligations of the parties with respect to the Soils Subsidence
Remediation Program.
G. By entering into and recording this Agreement, Developer satisfies in full with
respect to the Project (i) all conditions of subdivision approval relating to the Soils Subsidence
Remediation Program, (ii) all requirements of the Amended Ordinance, and (iii) all conditions
and requirements of the City in any way relating to any soils subsidence remediationprograms at
any time implemented by the City.
ICO77*TJUY
1. Definitions.
Defined terms whose initial letters are capitalized herein shall have themeanings
given to such terms as set forth in this Agreement, including on Exhibit `B" attached hereto.
2. Soils Subsidence Remediation Program
2.1 Soils Subsidence Remediation Program and Term. Developer's subdivision
approvals for Tentative Tract Nos. 14196 and 15609 require that Developer's Project include a
"Soils Subsidence Remediation Program". This Agreement sets forth the above -referenced Soils
Subsidence Remediation Program as it relates to said Tracts. The term of the Soils Subsidence
Remediation Program shall be in perpetuity.
2.2 Developer Repair Period. Pursuant to Municipal Code section 9-3.545(c)(1)(c),
Developer shall be responsible for making all repairs to correct any damage to lots and structures, or
common/public improvements due to soils displacement at its sole expense for thefirst three (3) years
after completion of rough grading of the entire site or the close of escrow for all lots within the entire
project, whichever is later. If the Developer fails to perform as provided herein, the City shall have the
right to draw upon Developer's security posted under the terms of sections 5.1 and 5.3. If the amount
in the Surficial Soils Subsidence Fund is less than the minimum amount as specified in section 2.4 at
the conclusion of the Developer Repair Period, then the Developer shall deposit sufficient funds to
meet the minimum requirements.
2.3 Long Term Covered Repairs. After the expiration of the Developer Repair
Period, if a Soils Subsidence occurs within the Tract, the Association shall make or cause to be
made the Covered Repairs necessitated by such Soils Subsidence ("Long Term Covered
Repairs') to the extent funds are available out of the Association's Surfrcial Soils Subsidence
Fund. In the event funds available in the Association's Surficial Soils Subsidence Fund is
insufficient to cover the cost of all such Covered Repairs, the Association shall levy and
collect special assessments against the owners of the residential lots to restore the Surficial Soils
Subsidence Fund to the minimum seventy-five percent (75%) level as often as necessary.
2.4 Surficial Soils Subsidence Fund. The Association is required to collect and
maintain a restricted fund to correct damage to individual Lots, structures, or public/private
improvements due to soils displacement occurrences. This restricted fund is called a Surficial Soils
Subsidence Fund. Developer is required to deposit an initial amount determined by the City into the
Surficial Soils Subsidence Fund. Regulation and use of the Surficial Soils Subsidence Fund shall be
in accordance with the following:
(a) Funds deposited in the Surficial Soils Subsidence Fund can only be used
for actual costs associated with correcting Soils Subsidence. The initial security for the Surficial Soils
Subsidence Fund shall be in such form and manner as to guarantee and secure the performance of the
Developer and shall consist of one of the options set forth in Section 5.2 below.
(b) Special Assessments shall be applied to all Lots within the Project. Said
Special Assessments shall commence on the first Close of Escrow of a Lot in the Project pursuant to
the regulations of the California Department of Real Estate. Said Special Assessments shall be
collected by the Association until the Surficial Soils Subsidence Fund reaches a predetermined
minimum as established by the City. Developer shall be able to withdraw its initial deposit provided
the Surficial Soils Subsidence Fund does not fall below sevent}-five percent (75%) of the
predetermined minimum. If a claim occurs during the period the Developer is responsible, and the
Surficial Soils Subsidence Fund drops below the seventy-five percent (75%) level, the Developer shall
restore such fund to the minimum seventy-five percent (75%) level. After the end of the Developer
Repair Period (and after any deposit required by Developer at that time pursuant to Section 18.8.3
below), the Association shall levy Special Assessments against the Owners to restore the Surficial
Soils Subsidence Fund to the minimum sevent}-five percent (75%) level as often as necessary.
(c) If the amount in the Surficial Soils Subsidence Fund is less than the
minimum amount as specified in Section 5.1 at the conclusion of the Developer Repair Period, then
the Developer shall deposit sufficient funds to meet the minimum requirements.
(d) Developer has reserved an exclusive license for the benefit of the
Association to enter onto Common Area and individual Lots to allow the Association to maintain and
inspect all landscaping, irrigation and drainage devices, and all other natural and artificial conditions
which affect or might affect the integrity of slopes which are subject to the provisions of this program.
(e) Any proposed alterations by Owners to the landscaping, grading,
irrigation or drainage installed on Covered Slopes on individually owned Lots shall be subject to prior
review and approval by the Association and the City.
2.5 Applicability of Soils Subsidence Remediation Program Slopes subject to the
soils subsidence remediation program are shown on Exhibit Cattached hereto and defined by the City
as follows ("Covered Slopes'):
(a) Common Area Slopes. All designated common area landscape slopes
maintained by the Association pursuant to the Declaration or any notice of addition or supplemental
declaration.
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(b) Manufactured Slopes. All manufactured slopes having a minimum
height of five (5) feet in vertical height.
(c) All natural slopes within two hundred (200) feet of individual lots, or
within our hundred fifty (150) feet if within the fuel modification zone.
2.6 Reserved Riahts. Developer and the Association reserve the right to assert
claims against any person or entity responsible in whole or in part, by reason of negligence or
willful misconduct of the person or entity against whom the claim is asserted, for displacement of
soil on the slopes, whether covered by the Soils Subsidence definition or not, including without
limitation, claims against one another. These reserved rights are subject to all applicable statutes
of limitation, including without limitation, the ten (10) year limitations period provided by Section
337.15 of the California Code of Civil Procedure and the Right to Repair Law provided in Title 7,
Section 895 to 945.5 of the California Civil Code.
3. Claims Procedures and Adiustments.
3.1 During the Developer's Liability Period for the Tract, the Soils Subsidence
Remediation Program shall be administered by the Developer. Thereafter, said program shall be
administered by the Association. The Association shall retain the services of an independent claims
adjusting service for all Long Term Covered Repairs in accordance with the requirements set forth in
Section 3.2 below. The service shall be responsible to adjust all claims for work which are claimed to
be within the coverage of this program. Claims asserted to be within the coverage of this program will
be processed by forms provided by the Association and filed with the independent adjuster, who will
promptly adjust such claims after obtaining an analysis on the scope and cost of completing all
necessary repairs. The Surficial Soils Subsidence Fund will compensate for the cost of the
independent claims adjusting service.
3.2 In the event any party receives notice of a claim that a Soils Subsidence has
occurred, such party shall give all other parties written notice of such claim setting forth the mme and
address of the claimant and the nature and extent of the claim to the extent such information is
available. Within fifteen (15) days after receipt of any such notice, the Association shall select an
independent and reputable claims adjusting service, geologist and/or soils engineer (duly licensed to
the extent required) with experience in handling soils and Soils Subsidence matters (referred to herein
as a "Claims Adjuster"). Any Claims Adjuster so selected shall be subject to approval by the other
parties to this Agreement, which approval shall not be unreasonably withheld, delayed or conditioned.
Any disapproval of the selected Claims Adjuster shall be given in writing to the administrator of the
Soils Subsidence Remediation Program at the time of the claim and to the other parties to this
Agreement within ten (10) days following receipt by the disapproving party of written notice of the
selection of the proposed Claims Adjuster. If such written disapproval or a written approval are not
given within said ten (10) day period, then approval of the proposed Claims Adjuster shall be deemed
to have been timely and properly given. If the proposed Claims Adjuster is properly and timely
disapproved as contemplated above, then the selection of the Claims Adjuster shall be made by an
arbitrator in connection with an arbitration conducted in accordance with the Commercial Arbitration
Rules of the American Arbitration Association as then in effect. Any such arbitration shall be held
and conducted in Orange County, California before one arbitrator who shall be selected by mutual
agreement of the parties to this Agreement within fifteen (15) days after any party to this Agreement
has notified the other parties that it has commenced or desires to commence an arbitration proceeding
for the purpose of selecting a Claims Adjuster. If the parties to the Agreement cannot or do not
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mutually agree upon an arbitrator within the said fifteen (15) day period, then any party to this
Agreement may thereafter request in writing that the presiding Judge of the Superior Court of Orange
County, California select and appoint the arbitrator, and any person so selected and appointedby
such Judge shall serve as the arbitrator hereunder upon his/her acceptance of such appointment. The
arbitrator appointed must be independent and have experience in dealing with soils and Soils
Subsidence matters. Final decision by the arbitrator must be made within ninety (90) days from the
date the arbitrator is appointed. The parties to this Agreement may submit the names and resumes
of proposed Claims Adjusters to the arbitrator, but the arbitrator shall be free to select any
Claims Adjuster he or she wishes to select so long as the Claims Adjuster is independent, duly
licensed to the extent required, and has experience in handling soils and Soils Subsidence matters.
Each party to this Agreement shall bear its own attorneys' fees, costs and expenses incurred in
connection with the arbitration. The costs and fees of the arbitrator shall beborne equally by the
parties to this Agreement. The decision of the arbitrator in selecting a Claims Adjuster shall be
final and judgment may be entered on it in accordance with applicable law in any court having
jurisdiction over the matter. The Claims Adjuster selected by the arbitrator as aforesaid shall be
deemed the "approved" Claims Adjuster.
The approved Claims Adjuster shall be promptly engaged by the party then
administering the Soils Displacement Warranty program, and the Claims Adjusterso engaged
shall be responsible for promptly investigating, allocating responsibility forand adjusting all claims
which allege that a Soils Subsidence has occurred that is within the coverage of the Soils
Subsidence Remediation Program After reasonably appropriate investigation and analysis, the
approved Claims Adjuster shall determine, among other things: (a) whether the claim is covered by
the Soils Subsidence Remediation Program and if so then the scope and estimated cost of the
Covered Repairs, (b) who has responsibility under this Agreement for actually performing the
Covered Repairs or causing them to be performed, and (c) who has under this Agreement the
financial responsibility for the requisite Covered Repairs.
The Claims Adjuster shall complete his/its analysis as soon as reasonably possible
and shall thereupon issue a written report to all of the parties to this Agreement, which written
report shall set forth its findings on the issues referred to above and such other mattersas the Claims
Adjuster deems appropriate. The parties agree that they shall promptly comply with the
decisions and findings of the Claims Adjuster as set forth in such report. The parties intend
that the decisions and findings of the Claims Adjuster shall be deemed binding upon them and
shall be enforceable against them by a court of competent jurisdiction and any party failing to comply
with such decisions and findings of the Claims Adjuster as they affect such party shall be liable
for damages and all other relief as may be determined appropriate by a court of competent
jurisdiction.
4. Grace Period.
A party shall only be deemed in default under this Agreement if such party fails
to perform any of its duties or obligations under this Agreement and such failure is not cured
within thirty (30) days after written notice of such failure has been given to such party. If such
failure cannot reasonably be cured within thirty (30) days after the giving of such notice, then said
party shall not be deemed in default under this Agreement if such party commences to cure the
failure within said thirty (30) day period and thereafter diligently and in good faith continues to
prosecute such curative action to completion. The notice of failure referred to in this Section 4
above shall specify the alleged failure in detail.
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5. Security for Developer's Obligations.
5.1 Security for Developer's Obligations During Developer Repair Period. Prior to
the issuance of a fine grading permit for any lot within the project, the Developer shall provide a
surety bond to secure Developer's performance of its obligations under section 2.2. Such security
shall be in an amount equal to the sum of Five Hundred Thirty Five Thousand One Hundred
Thirty Four Dollars ($535,134.00). The form of the Surety shall be approved by the Office of
the City Attorney. The security posted pursuant to this section shall be released by City Council
action at such time that the Developer Repair Period set forth in section 2.2 has been determined
to have expired.
5.2 Security for Developer Repair Period.
(a) De posit of Funds. Prior to the issuance of a fine grading permit for any
lot within the project, Developer shall deposit into the Association's Surficial Soils Subsidence Fund
cash in an amount equal to Five Hundred Thirty Five Thousand One Hundred Thirty Four
Dollars ($535,134.00).
(b) Security in Lieu of Cash Deposit(s). In lieu of the cash deposit(s) by
Developer into the Association's Surficial Soils Subsidence Fund as provided above, Developer
shall have the option to guaranty and secure performance of its obligations under Section 2.2, above,
by one of the following alternatives, at the option of Developer with the approval of the City
Council:
(i) Corporate sureties approved by the City Attorney;
(ii) A deposit, either with a responsible escrow agent or trust
company, of money or negotiable bonds of the kind approved for securing deposits of public moneys;
or
(iii) An instrument of credit, from one or more financial institutions
subject to regulation by the state or federal government, pledging that the funds necessary to carry out
the warranty program are on deposit and guaranteed for payment.
(c) Release of Security. The Developer's security is subject to release
pursuant to the requirements and procedure set forth in Municipal Code section 9-3.545 ( c) (2) (D)
(ii).
5.3 Rights of City Upon Developer's Default If during the Developer Repair
Period, in accordance with Section 2.2., above, or the period subsequent to the Developer Repair
Period pursuant to the terms of Section 2.3, above, Developer (or its successor) fals to perform
its obligations as required under those Sections, the City Attorney shall provide written notice
to Developer of such failure and provide Developer with an opportunity to cure in accordance
with Section 4, above. In the event Developer does not cure its failure of performance within
the cure period, then the Council may, by resolution or other official Council action, after a
noticed public hearing, authorize the Director of Engineering and Building ("Director) to draw
upon the security posted by Developer pursuant to this Section 5 to perform such work or
otherwise cure Developer's default hereunder (the "Authorized Monies'). The Association's
Surficial Soils Subsidence Fund and any security provided by Developer pursuant to this
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Section 5 shall be vested such that the Director can access such funds or security after such
Council action and any judicial reference regarding such action pursuant to Section 5.5, below.
5.4 Public Hearing. Developer (or its successor) will be entitled to reasonable
notice of such public hearing, will have the right to appear at the hearing where the Council action is
considered, and will be entitled to assert any and all defenses which Developer (or its
successor) may possess as to such Council action including, without limitation, a claim that the
work proposed to be performed is not within the scope Developer's obligation under this
Agreement or is not reasonably necessary.
5.5 Dispute Resolution. In the event of a dispute between the City and
Developer (or its successor) involving any aspect of the penalty provided for herein including,
without limitation, the propriety of the Council action provided for herein, such dispute shall be
resolved by a judicial reference pursuant to Section 7, below.
5.6 Deemed Reduction in Developer's Contribution. Developer agrees and
acknowledges that if such Council action is taken properly pursuant to this Agreement and under the
laws of the State of California, then as a penalty for nonperformance by Developer (or its
successor) under the terms of Section 2.2, above, the security posted by Developer pursuant to Section
5.2 shall be deemed (for purposes of timing of recovery of Developer's security only) to have been
reduced by an amount equal to the amount of the Authorized Monies. Under those circumstances,
Developer's recovery of its funding or posting of security pursuant to Section 5.2 will be delayed
until deposits by the Association into the Association's Surficial Soils Subsidence Fund
pursuant to Section 6. 1, below, build sufficiently to offset the deemed reduction in Developer's
deposits or security.
6. Homeowner Association Assessments to Fund the Association's Surficial Soils
Subsidence Fund.
6.1 Association to Levy and Collect Monthly Assessments. The Association shall
levy and collect homeowner assessments (the "Annual Assessment") with respect to each residential
lot in the Project then subject to assessment each month in an amount as provided in the
Association's annual budget as approved by the DRE for the Project (the `Budget") commencing
upon the first day of the month following the first close of escrow and conveyance of a residential lot in
a DRE Phase (defined below) within the Project that is sold and conveyed to a member of the
public under a final subdivision public report issued by the DRE. A "DRE Phase" consists of a
group of residential lots, and may include common area lots, that are set forth in the Budget as a
phase, approved by the DRE and covered by a single final subdivision public report A portion of
the Annual Assessment shall be designated to fund the Association's obligations under Section
2.3 as provided in the Budget (the "Association's Surficial Soil Subsidence Fund'). In no event
shall the Association's Budget and the resulting Annual Assessment be changed to provide for
the funding of less than Fifty and 00/100 Dollars ($50.00) per month per residential lot then
subject to assessment into the Association's Surficial Soil Subsidence Fund without the prior
approval of the City and the Developer, which approval shall not be unreasonably withheld.
Notwithstanding the foregoing, the Association shall have the right to change the Budget and/or the
Annual Assessment pursuant to the terms of the Declaration without the consent of the City or the
Developer (except as otherwise required under the terms of the Declaration) provided any such
change does not result in the funding of less than Fifty and 00/100 Dollars ($50.00) per month
per residential lot then subject to assessment into the Association's Surficial Soils Subsidence
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Fund. The Association's Surficial Soils Subsidence Fund shall be established and maintained by the
Association as a restricted reserve fund so that the funds therein shall be available to the Developer,
the Association or the City for payment or reimbursement of costs for Covered Repairs
implemented or to be implemented by the Developer and/or the Association as the party
responsible therefor in accordance with the provisions of this Agreement. Monies constituting
the Association's Surficial Soils Subsidence Fund and interest thereon shall be deposited and
retained in a restricted reserve account ("Association's Surficial Soils Subsidence Account') to
be established by the Association in its name as soon as practicably possible following the
later of full execution and delivery of this Agreement or the issuance by the DRE of the final
subdivision public report covering the first phase of development of any residential lots within
the Project. Monies in the Association's Surficial Soils Subsidence Account shall only be
withdrawn and used for the purposes contemplated in this Agreement.
6.2 Cessation of Assessments Under Certain Circumstances. Except as otherwise
provided in this Agreement, the Association may cease levying and collecting assessments as
contemplated in Section 6.1 upon the last to occur of (a) when Developer has been fully
reimbursed pursuant to Section 5, or (b) when the total balance of the Association's Surficial
Soils Subsidence Account reaches the Project Fund Amount.
6.3 Replenishment of the Association's Surficial Soils Subsidence Account In the
event the Association's Surficial Soils Subsidence Account is depleted by the cost of making
Covered Repairs, as contemplated by Section 2.4 of this Agreement, the Association will, by regular
or special assessments, restore the total amount in the Association's Surficial Soils Subsidence Account
to the lesser of (a) the balance of such fund immediately prior to such depletion or (b) the Project
Fund Amount, within a reasonable period of time.
6.4 Responsibility of the Association and its Board of Directors The Association
and its Board of Directors shall be responsible for establishing and maintaining the
Association's Surficial Soils Subsidence Fund and the Association's Surficial Soils Subsidence
Account as herein provided, and for levying and using best efforts to collect assessments to fund the
Association's Surficial Soils Subsidence Fund as herein provided.
7. Dispute Resolution. Any dispute arising out of this Agreement, but excluding any
construction defect claims or right to repair claims made under Section 895 to 945.5 of the California
Civil Code, shall be submitted to general judicial reference pursuant to California Code of Civil
Procedure Sections 638 and 641-645.1 or any successor statutes thereto. Construction defect claims
or right to repair claims made under Section 895 to 945.5 of the California Civil Code, shall be
resolved in accordance with Article XIX of the Declaration. Within ten (10) days of receipt by any
party of a written request to resolve any such dispute, the parties shall agree upon a single referee. If
the parties are unable to agree upon a referee within such ten (10) day period, then any party may
thereafter seek to have a referee appointed under the California Code of Civil Procedure Sections 638
and 640. If the referee is appointed by the Court, the referee shall be a retired judge from JAMS, the
American Arbitration Association ("AAA') or similar mediation/arbitration entity. The proposed
referee may be challenged for any of the grounds listed in Section 641 of the California Code of Civil
Procedure. The parties shall cooperate in good faith to ensure that all necessary and appropriate
parties are included in the judicial reference proceeding. If a dispute involves parties other than those
listed above, this provision shall be interpreted to bring those thirdparty disputes into the general
reference procedure prescribed herein to the extent permitted by law. All parties shall cooperate in
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good faith to ensure that all necessary and appropriate parties are included in the judicial reference
proceeding.
7.1 The parties shall use the procedures adopted by JAMS for judicial reference (or
any other entity offering judicial reference dispute resolution procedures as may be mutually
acceptable to the parties), provided that the following rules and procedures shall apply in all cases
unless the parties agree otherwise:
(a) If the Developer is a party to such judicial reference proceedings, any
fee to initiate such proceedings shall be advanced by the Developer; however, the fees and costs of the
judicial reference proceedings (e.g., the fee for the referee and all expert witness fees and costs, etc.,
but excluding all attorneys' fees) shall ultimately be borne as determined by the referee. In all cases,
each party shall bear its own attorneys' fees at its sole cost and expense;
(b) The proceedings shall be heard in the County in which the Project is
located, unless all parties agree to a different location;
(c) The referee shall have the power to decide all issues of fact and/or law,
and to report a statement of decision to the court on such issues, and to issue all recognized remedies
available at law or in equity for any cause of action that is before the referee;
(d) The referee may require one or more pre -hearing conferences;
(e) The parties shall be entitled to discovery, and the referee shall oversee
discovery and may enforce all discovery orders in the same manner as any trial court judge;
(f) A stenographic record of the proceedings shall be made;
(g) The referee's statement of decision shall contain findings of fact and
conclusions of law to the extent applicable and shall stand as the decision of the court;
(h) The referee shall have the authority to rule on all post -hearing motions
in the same manner as a trial judge;
(i) The parties shall promptly and diligently cooperate with one another and
the referee, and shall perform such acts as may be necessary to obtain a prompt and expeditious
resolution of the dispute; and
0) The statement of decision of the referee upon all of the issues
considered by the referee shall be binding upon the parties, and upon filing of the statement of
decision with the clerk of the court, or with the judge where there is no clerk, judgment may be
entered thereon in the same manner as if the action had been tried by the court. The decision of the
referee shall be appealable as if rendered by the court.
7.2 WAIVER OF COURT AND JURY TRIAL. AS TO ALL DISPUTES
SUBJECT TO THE ALTERNATIVE DISPUTE RESOLUTION PROVISIONS SET FORTH OR
REFERENCED IN SECTION 7, EACH PARTY WAIVES ANY RIGHTS TO JURY TRIAL,
APPEAL AND OTHER CIVIL LITIGATION PROCEEDINGS FOR SUCH DISPUTES, EXCEPT
AS OTHERWISE EXPRESSLY SET FORTH OR REFERENCED HEREIN. IN THE EVENT ANY
OF THE PROCEDURES SET FORTH OR REFERENCED HEREIN ARE DETERMINED TO BE
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INVALID OR UNENFORCEABLE, IN WHOLE OR IN MATERIAL PART, SUCH THAT THE
RESOLUTION OF THE DISPUTE SHALL PROCEED BY WAY OF CIVIL LITIGATION
PROCEEDINGS, EACH PARTY NONETHELESS WAIVES THE RIGHT TO JURY TRIAL WITH
RESPECT TO SUCH DISPUTE.
8. Miscellaneous.
8.1 Additional Limitations on Soils Subsidence Remediation ProNothing to
the contrary in this Agreement withstanding, it is agreed that:
(a) The Soils Subsidence Remediation Program provided herein expressly
excludes Soils Subsidence or any other soils or earth movement or failure of slopes, regardless of
cause, not expressly referred to herein, and any and all resulting damage, whether arising out of
covered Soils Subsidence or not.
(b) In no event will performance of repair work by any person or entity or
any other circumstances extend the Developer Repair Period provided herein.
8.2 Reservation of License and Right to Enter.
(a) There is hereby reserved for the benefit of Developer and its successors
and the Association, a license and right to enter onto the common areas and individually -owned
lots within the Project so that Developer or its successors and the Association and their agents may (a)
inspect all landscaping, irrigation and drainage devices, and all other natural and artificial conditions
which affect or might affect the integrity of the slopes which are the subject of the Slope Warranty,
and (b) perform the duties of Developer to the full extent provided for herein.
(b) Appropriate provisions in the grant deeds will grant the Association a
license and right to enter onto the common areas and individuall}-owned lots of the Project so that the
Association or its agents may inspect, maintain and repair the slopes within the Project to the full
extent provided for herein.
8.3 Review and Approval by Association. Any proposed alterations by
homeowners or any other person or entity to the landscaping, grading, irrigation or drainage on the
residential lots or common areas will be subject to review and approval by the Board of the
Association and/or by its Architectural Review Committee.
8.4 Reference in Deeds. The grant deeds for the residential lots will reference this
Agreement and the Soils Subsidence Remediation Program provided herein. The provisions of this
Agreement constitute covenants running with the land and an equitable servitude as to the real
property referenced herein.
8.5 Collection and Reporting. The Board of the Association will be responsible
for the collection of homeowner assessments for the Association's Surficial Soils Subsidence Fund
and accounting for such assessments and interest thereon. The Board of the Association will
report to Developer and to the City the incidence of covered and non -covered claims, as well as the
balance in the Association's Surficial Soils Subsidence Fund as of the date of the report. Such
reports will be made on or before January 31 and July 31 of each year. The Board will also
provide to Developer at its request, and to the City at the City's request, any further information,
10
documentation and cooperation as is reasonably necessary to effectuate the purposes of this
Agreement.
8.6 Further Acts. The parties to this Agreement agree to perform such other and
further acts and execute such other and further documents as are necessary to effectuate the intent
of this Agreement.
8.7 Headings. The headings in this Agreement are inserted for convenience and
identification only and are in no way intended to describe, define or limit the scope, intent or
interpretation of this Agreement or any provisions hereof.
8.8 No Representations. No party or any agent, employee, representative, or
attorney of or for any party has made any statement or representation to any other party regarding
any fact relied upon in entering into this Agreement, and no party relies upon any statement,
representation or promise of any other party or of any agent, employee, representative or attorney of
any other party, in executing this Agreement, or making this settlement provided for herein, except
as expressly stated in this Agreement.
8.9 Entire Agreement. This Agreement is the entire agreement between the
parties with respect to the subject matter hereof and supersedes all prior and contemporaneous oral
and written agreements and discussions. This Agreement may be amended only by an agreement in
writing among Developer (or its successors in interest or assignees), the City, and the Association.
8.10 Binding Upon Successors. This Agreement is binding upon and shall inure to
the benefit of the parties hereto, their respective successors and assigns.
(a) This Agreement is binding upon Developer's successors in interest or
assignees as to the Project, and any or all of them.
(b) Effective upon the sale or other conveyance of Tract Nos. 14196 and
15609 or any portion thereof in bulk, Developer will be relieved of its obligations under this
Agreement as to the real property so sold or conveyed, to the extent that such obligations are
assumed in writing by Developer's successors in interest orassignees, including without limitation
the obligation to provide security for the Developer Repair Period herein. Upon the City's receipt
of reasonably adequate substitute security from any assuming party, the Developer's Security or
the appropriate prorata portion thereof shall be appropriately released and exonerated to Developer
by the City.
8.11 Construction of Agreement. Each party has cooperated in the drafting and the
preparation of this Agreement. Hence, in any construction to be made of this Agreement, the same
shall not be construed against any party. This Agreement shall be construed under California law.
8.12 Counterparts. This Agreement may be executed in counterparts, and when each
party has signed and delivered to the other at least one such counterpart, each counterpart shall be
deemed an original, and when taken together with the other signed counterparts, shall constitute one
agreement, which shall be binding upon and effective as to all parties.
8.13 Severability and No Waiver. The invalidity or unenforceability of any provision
of this Agreement shall not invalidate or render unenforceable any of the other provisions of this
Agreement. No waiver of any provision of this Agreement shall constitute a waiver of any other
M
provision, nor shall any such waiver constitute a continuing waiver unless otherwise agreed in
writing.
8.14 Termination. Unless otherwise agreed among the parties, this Agreement
shall continue in perpetuity.
8.15 Notices. Any notice which either party may desire to give to the other party
must be in writing and may be given by personal delivery, by mailing the same by registered or
certified mail, return receipt requested, postage prepaid, or by Federal Express or other reputable
overnight delivery service, or by telecopier or other reliable electronic type mail system to the party
to whom the notice is directed at the address of such party hereinafter set forth, or such other
address and to such other persons as the parties may hereafter designate. Any such notice shall be
deemed given upon receipt if by personal delivery, forty-eight (48) hours after deposit in the United
States mail, if sent by mail pursuant to the foregoing, or twenty-four (24) hours after deposit with
Federal Express or other reputable overnight delivery service, or twentgfour (24) hours after
transmission by telecopier or other reliable electronic type mail system.
To Developer: SJD Partners, Ltd.
2392 Morse Avenue
Irvine, CA 92614
To Association: Pacifica San Juan Community Association
c/o Suncal Companies
2392 Morse Avenue
Irvine, CA 92614
To the City: The City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Attn: Director of Engineering and Building
Telecopier: (714) 493-1171
The City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Attn: City Attorney
Telecopier: (714) 493-1171
12
IN WITNESS WHEREOF, this Agreement was executed on the date first abovewritten.
Attest,
Cit C14-
DEVELOPER:
l c
CITY:
THE CITY OF SAN JUAN CAPISTRANO
By:
Its:
-
DEVELOPER:
SID Partners, Ltd.
a California limited partnership
By:
Naz
Its:
ASSOCIATION:
Pacifica San Juan Community Association, a
California no/profltfiutual benefit corporation
By: . 1''v.
Name: vw.(Ie
Its: GOro-41U K C,
By:�,l�
Name:w
Its: �y1t Lv
Approv�Kas to form and content
This " day of Ocro P*P� 2005
— si—,
City Att ney
City of San Juan Capistrano
13
PUBLIC AGENCY FORM OF ACKNOWLEDGEMENT
State of California )
County of Orange ) ss.
City of San Juan Capistrano )
(Gov't Code 40814 & Civil Code 118 1)
On November 1, 2005 before me, Mitzi Ortiz, Deputy City Clerk, personally appeared Wyatt Hart,
Mayor, personally known tome to be the person whose name is subscribed to the within instrument
and acknowledged to me that he executed the same in his authorized capacity, and that by his
signature on the instrument the person, or the entity upon behalf of which the person acted, executed
the instrument.
WITNESS my hand and official seal.
Mitdortizooeputy City Clea
OPTIONAL
Capacity Claimed by Signers Description of Attached Document
Mayor Agreement Establishing Soils Subsidence
Title
Remediation Program
Title or Type of Document
Signers are Representing
November 1, 2005
City of San Juan Capistrano Date of Document
None
Signer(s) Other Than Named Above
STATE OF CALIFORNIA )
)ss.
COUNTY OF ORANGE )
On October 17 , 2005 before me, Cynthia Oster personally
appeared Bruce Elieff personally known to me (er proved We txe ex
the basss of s tisfa tet=, e viaenee) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf
of which the person(s) acted, executed the instrument.
WITNES!
Signature
CYNTHIAOSTER
Commission $1325M0
Notary public - California
Orange County
My Comm. 6Vires Nov 5, 2005
STATE OF CALIFORNIA )
)ss.
COUNTY OF ORANGE )
On October 17 2005 before me, Cynthia Oster personally
appeared Bruce V. Cook personally known to me (of proved
t me eii the basis of satis eter , evidenee ) to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that
by his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNES:
Signature
CYNTHIA OSTER
COmnaesion / 1328680
Notary Pubile - California i
�zOrange County
L.%MYC"M EXPtree Nov 6, 2005
STATE OF CALIFORNIA )
)ss.
COUNTY OF ORANGE )
On October 17 , 2005 before me, Cynthia Oster personally
appeared Ron Freeman personally known to me (or preved to the on
the basis „v sati,.a.,.tefy evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf
of which the person(s) acted, executed the instrument.
WITNES:
Signature
C\M-'HLA LISTER
Commission it t3
Notary Public - California
Orange County
vn, Expinn Nov
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
That certain real property located in the City of San Juan Capistrano, County of
Orange, State of California, described as follows:
Portions of Tract Nos. 14196 and 15609, as described herein
• EXHIBIT "A"
LEGAL DESCRIPTION FOR GEOLOGIC
HAZARD ABATEMENT DISTRICT BOUNDARY
Those portions of Lots 5 and 8, in the City of Sart Juan Capistrano, County of Orange, State of
California, as shown on a map fled in Book 4, Page 15 of Record of Surveys in the Office of the
County Recorder of Orange County, California, described as follows:
PARCEL A
PARCEL A-1
Beginning at the intersection of the Northeasterly line of that certain parcel of land described
as Parcel 8, in the City of San Juan Capistrano, County of Orange, State of California, in the
Deed recorded October 6, 1930 in Book 428, Page 75 of Official Records, with the centerline of
the California State Highway (100 feet wide), as described in the Quitclaim Deed recorded
December 29, 1944 in Book 1287, Page 462 of Official Records; thence from said point of
• beginning, South 64°06'40" East along said Northeasterly line, 947.49 feet to a point; thence
South 25°53'20" West 380.84 feet to a point; thence North 76°24'40" West 663.39 feet to a
point; thence South 47034'20" West 119.84 feet to a point; thence North 20044' %fest 432.01
feet to a point in the centerline of said California State Highway; thence North 35°49'02" East
along said centerline, 341.93 feet to the point of beginning, being a portion of Lot 8 as shown
on a licensed surveyor's map filed in Book 4, Page 15 of Record of Surveys-, in the office of the
County recorder of Orange County, California.
Excepting therefrom that portion lying Northwesterly of the following described line:
Beginning at the most Southerly comer of the land described in Deed to the State of California,
recorded June 13, 1967 in Book 8277, Page 568 of official records of said County: thence
Northeasterly along the Southeasterly line of said land, to its intersection with the
• Octotxr 12, 1998
Page I of 11
NCO. 1890-14 196
ElkA Legal No. 4588
Prepared By: It. Foss
Ck'd By: R. Williams/ti
EXHIBIT A
• Southeasterly line of the land described in Deed to the State of California, recorded May 16,
1958 in Book 4287, Page 239 of Official Records; thence Northeasterly along said last
mentioned Southeasterly line, to the intersection with the Northeasterly line of the above
described land.
Also excepting therefrom that portion lying Northerly and Westerly of the following described
line;
Beginning at the intersection of the Northeasterly line of that certain parcel of land described
as Parcel 8, in the City of San Juan Capistrano, County of Orange, State of California, in the
Deed recorded October 6, 1930 in Book 428, Page 75 of Official Records, with the centerline of
the California State Highway ( 100 feet wide), as described in the Quitclaim Deed recorded
December 29, 1944 in Book 1287, Page 462 of Official Records; thence from said Point of
Beginning, North 35°49'02" East along the centerline of the California State Highway, 295.04
feet to a point North 54019'50" West of the most Westerly corner of the 37.10 acre parcel of
• land described as Parcel I in the Deed dated, November 12, 1947 from Marco F. Forster and
wife, to Rosenbaum Rancho Co., recorded December 30, 1947 in Book 1613, Page 219 of
Official Records; thence South 54'19'50" Fast 427.04 feet; thence North 810 10' East 385.20 feet;
thence North 35002'20" East 497.17 feet; thence South 22003'10" East 1386.08 feet to the
Northerly line of said Lot 8; thence North 20007'04" West 293.57 feet along last mentioned
course (on a different basis of hearings) to the TRUE. POINT OF BEGINNING ; thence North
54'25 '03" West 151.70 feet; thence North 4842'00" West 538.26 feet; thence North 8718'00"
West 155.28 feet; thence South 6'55'00" West 181.47 feet; North 87040'00" West 619.21 feet;
thence South 14032'00" West 379.19 feet to the course cited as, "North 76°24'40" W 663.39 feet"
herein above.
• October 12, 1998
Page 2 of 11
W.O. 1890-14196
H8u\ Legal No. 4588
Prepared By: H. Foss
Ck'd By: R. Williamsitj
• Parcel A-2
Beginning at a point which bears South 64006"40' East (record South 64003'45" East) 947.49 feet
from the intersection of the Northeasterly line of a certain parcel of land described as Parcel 8
in the Deed recorded October 6, 1930 in Book 428, Page 75 of Official Records, with the
centerline of the California State Highway (100 feet wide), as described in the Quitclaim Deed
recorded December 29, 1944 in Book 1287, Page 4672 of Official Records, said point of
beginning being the most Easterly corner of the land described in Parcel A-1 herein; thence
from said point of beginning, South 25°53'20" West 380.84 feet; thence South 76°2440" East
504.26 feet; thence South 25°51'40" East 222.39 feet ; thence South 500740" East 1629.59 feet
to a point in the Easterly line of Lot 8 as shown on a Licensed Surveyor's Map filed in Book 4,
Page 15 of Record of Surveys in the Office of the County Recorder of Orange County,
California; thence North 22°45' East 1810.42 feet to the Easterly corner of said Lot 8; thence
North 64°06'40" West (Record North 64'03'45" West) 1407.90 feet to the Point of Beginning.,
• PARCEL A-3
Beginning at the intersection of the Northeasterly line of that certain parcel of land described
as Parcel 8, in the Cin` of San Juan Capistrano, County of Orange, State of California, in the
Deed recorded October 6, 1930 in book 428, Page 75 of Official Records, with the centerline of
the California State Highway ( 100 feet wide), as described in the Quitclaim Deed recorded
December 29, 1944 in Book 1287, Page 462 of Official Records; thence from said point of
beginning, North 35°49'02" Fast along the centerline of the California State Highway, 295.04
feet to a point North 54°19'50" West of the most Westerly corner of the 37.10 acre parcel of
land described as Parcel 1 in the Deed dated, November 12. 1947 from Marco F. Forster and
wife, to Rosenbaum Rancho Co., recorded December 30, 1947 in Book 1613, Page 219 of
Official Records; thence South 54°19'50" East 427.04 feet; thence North 81010' East 385.20 feet;
• October 12. 1998
Page 3 of I l
W.O. 1890-14196
H&A Legal No. 4588
Prepared By: H. Foss
Ck'd By: R. Williansly
• thence North 35002'20" East 497.17 feet; thence South 22003'10" East 1386.08 feet; thence
North 6400640" West (Record North 84003'45" West) 1896.49 feet to the point of Beginning.
Excepting therefrom, all that portion of said land lying Westerly of the following described line,
being the Easterly line of the land described in a Deed to the State of California, recorded May
10, 1958 in Book 4287, Page 239 of Official Records.
Beginning at the intersection of the Southwesterly line of the land above described, with the
Easterly line of said land to the State of California; thence North 14°00'59" East along said
Easterly line of the State of California, to an angle point therein; thence North 35°49'02" East
along said Easterly line, to the intersection of said Easterly line with the Northeasterly line of
said land above described.
Also excepting therefrom that portion lying Northerly of the following described line;
• Beginning at a point distant North 20007'04" West 243.57 feet (on a different basis of bearings)
from Southerly terminus of course described as, "S 22°03'10" E 1386.08 feet" above; thence
North 54025'03" West 151.70 feet; thence North 48°42'00" West 538.26 feet; thence North
87°18'00" West 155.28 feet; thence South 6055'00" West 181.47 feet; North 87040'00" West
619.21 feet; thence South 14°32'00" West 379.19 feet to the course cited as, "North 76°24'40" W
663.39 feet" herein above.
PARCEL B
That portion of Lot 8, in the City of San Juan Capistrano, County of Orange, State of
California, as shown on a map filed in Book 4. Page 15 of Record of Surveys, in the office of the
County recorder of Orange County, California, described as follows:
• October 12. 1998
Page 4 of I 1
W.0. 1890-14196
HBcA Legal No. 4588
Prepared By: 11. Foss
Ck'd By: R. Williarns/tj
• Commencing at the intersection of the Northeasterly line of that certain parcel of land
described as Parcel 8 in the deed recorded October 6. 1930 in Book 428, Page 75 of Official
Records, with the centerline of the California State Highway (100.00 feet wide), as described in
the quitclaim deed recorded December 19, 1944 in Book 1287, Page 462 of Official Records;
thence South 35049'02" West along the centerline of said highway, 341.93 feet to the TRUE
POINT OF BEGINNING of this description; thence South 20°44' East 432.01 feet, thence
South 10026'40" Fast 251.43 feet; thence South 21°29'20" West 634.52 feet, thence South
59019'20" East 1185.00 feet; thence North 49°59'20" East 706.11 feet; thence South 5°07'40"
East 1032.12 feet; thence South 22045' 11%est 233.36 feet; thence South 74020' Nest 617.11 feet;
thence South 62030'45" West 1127.52 feet; thence South 61°04' West 1300.17 feet; thence South
76° West 755.38 feet to a point in the Easterly line of the California State Highway; thence
North 05°01'30" East along said line of said highway, 238 feet, more or less, to the intersection
with the Easterly line of said prior Homestead; thence along said Easterly line of said prior
Homestead, North 27°53'30" East 89.98 feet; thence North 05°30' Fast 1047.16 feet; thence
North 13°32' East 431.67 feet to the intersection of said Pryor Homestead with the centerline of
• said California State Highway; thence Northerly along said centerline, along a curve thereof,
382.72 feet to the Northerly end of said curve; thence continuing along the centerline of said
highway, North 38054' East 1565.30 feet to the Engineers Station 454+71.88 thereof; thence
continuing Northerly along the centerline of said highway, along a curve thereof 218.17 feet to
the Northerly end of said curve at Engineers Station 456+90.05; thence continuing along the
centerline of said highway, North 26024' East 710.97 feet to Engineer's Station 464+01.02;
thence Southeasterly to the TRUE POINT OF BEGINNING.
Excepting therefrom, the following parcels of land:
(A) beginning at a point in the Southwesterly line of that certain parcel of land described as
Parcel 1 in the Deed from Marco F. Forster and Elizabeth Forster to Wendell K. McCraken and
Helen V. McCraken. Recorded in Book 1603. Page 298 of Official Records, Records of Orange
County, California, Said point being South 59019'20" East 459.10 feet from the most Westerly
• October 12, 1998
Page 5 of I I
W.O. 1890-14196
H&A Irgal No. 4588
Prepared By: H. Foss
Ck'd By: R. Williants/tj
corner thereof; thence South 59019'20" East 257.58 feet; thence South 2°38'20" West 208.06
• feet; thence South 17051'20" West 182.71 feet to the beginning of a curve concave to the
Northwest and having a radius of 150.00 feet and a central angle of 54°00'40'; thence a
Southwesterly direction along the arc of above mentioned curve, 141.40 feet; the South
71 °52'00" Nest 239.97 feet to the beginning of a curve concave to the North and having a radius
of 300 feet and a central angle of 23°07'54'; thence in a Westerly direction along the arc of the
above mentioned curve, 121.12 feet; thence North 85°00'06" West 401_33 feet; thence North
73°30'02" West 16.62 feet; thence North 39015'40" East 1039.24 feet to the Point of Beginning.
(B) Beginning at the intersection of the Northeasterly line of that certain parcel of land
described as Parcel 8 in the Deed recorded October 6, 1930 in Book 428, Page 75 of Official
Records, with the centerline of the California state Highway (100 feet wide), as described in a
Quitclaim Deed recorded December 29, 1944 in Book 1287, Page 462 of Oficial Records,
thence South 35049'02" West 341.93 feet; thence South 20°44' East 432.01 feet; thence South
10°26'40" East 251.43 feet; thence South 21°29'20" West 634.52 feet; thence South 27°59'50"
• West South 86.56 feet to the beginning of a carve concave to the Northwest, having a central
angle of 11"47' and a radius of 400 feet; thence in a Southwesterly direction along the arc of the
above mentioned curve, 82.26 feet; thence South 39°4650" West 102.53 feet to the beginning of
a curve concave to the Southeast, having a central angle of 28°16'50" and a radius of 200 feet;
thence Southwesterly and Southerly along the arc of the last mentioned curve, 98.72 feet;
thence South 11°30'00" West 136.18 feet to the beginning of a curve concave to the Northeast,
having a central angle of 85°00'02" and a radius of 100 feet; thence Southeasterly along the arc
of the last mentioned curve, 148.35 feet; thence South 73°30'02" Ease 74.01 feet to a point, said
point being the TRUE POINT OF BEGINNING of the herein described land; thence from said
TRUE POINT OF BEGINNING, South Tj*30'02" East 71.67 feet; thence South 85°00'06" East
200.15 feet; thence South 40017'40" East 158.73 feet; thence South 3°04'20" West 149.85 feet;
thence South 51°07'20" West 146.40 feet; thence South 63°12'20" West 69.65 feet; thence South
83007'20" West 127.60 feet; thence North 7104740" West 110.65 feet, thence North 1022'20"
• October 12, 1998
Page 6 of I I
W.0.1890-14196
II&1 Legal No. 4588
Prepared By: H. Foss '.
Ck'd By: R. Williams/tj
- _ _ _ __- _....._J
East 251.90 feet; thence North 13°42'10" East 165.39 feet to the TRUE POINT OF
• BEGINNING.
(C) Beginning at a point which bears South 49°59'20" Nest 706.11 feet, and thence North
59059'20" West 70ti.11 feet, and thence North 59019'20" West 167.89 feet from the most
Easterly corner of Parcel I of the land described in the Deed to Wendell K. McCraken and
others, recorded December 30, 1947 in Book 1603, Page 298 of Official Records; running
thence from said point of beginning, North 59019'20" West 301.23 feet; thence South 2038'20"
West 208.06 feet; thence South 17°21'40" East 153.30 feet; thence North 17°51'20" East 29.42
feet to the beginning of a curve concave to the East, having a centerline radius of 150.00 feet,
and central angle of 36°48'30"; thence in a Northerly direction, along the arc of the above
mentioned curve, 96.36 feet; thence North 54°39'50" East 91.28 feet; thence North 62°38'20"
East 93.90 feet to the Point of Beginning.
(D) Commencing at the intersection of the Northeasterly line of that certain parcel of land
• described in Parcel 8 in the Deed recorded October 6, 1930 in Book 428, Page 75 of Official
Records in said office, (also being die Northeasterly line of said Lot 8), with the centerline of the
California State Highway (100 feet wide), as described in Deed recorded in Book 1298, Page
372 of said Official Records; thence along said centerline, South 36°37'34" West 341.93 feet to
•
the TRUE POINT OF BEGINNING of this description; thence South 19°5528" East 134.41
feet; thence South 56°33'06" West 9.71 feet; thence North 53022'26" West 30.00 to a point on a
line parallel with and distant Southeasterly 79.00 feet, measured at right angles front said
centerline said point being opposite Engineers Station 461+46.90; thence along said parallel
line, South 36'37'34" West 1500.00 feet to a point opposite Engineer's Station 446+90 of said
centerline; thence leaving said parallel line, South 31°19'36" XVest 1018.78 feet; thence South
16055'16" West 137.47 feet; thence South 53°28'47" East 467.53 feet: thence South 15°38'32"
1Vest 259.62 feet; thence South 47028'28" West 685.78 feet; thence South 5°15'42" West 380.21
feet; thence South 3302542" East 350.49 feet to a point on the line described in the Deed to
Marco F. Forster and Elizabeth J. Forster. recorded in Book 856, Page 70 of said Official
October 12. 1998
Page 7 of I I
W.0.1890-14196
H&4 Legal No. 4588
Prepared By: Ii. Foss
Ck'd By: R. Williams/it
Records, as having a bearing South 76°West, distant Easterly 515.82 feet from the Westerly
• terminus of said line; thence along said line, South 76048'32" West 515.82 feet to a point in the
Easterly line of the California State Highway, as shown on said map; thence along said Easterly
line, North 5°50'02" East 238.00 feet, more or less, to the intersection with the Easterly line of
the Pryor Homestead, as described in decree recorded in Book 7, Page 31 of Homesteads in the
Office of the County Recorder of Los Angeles County, California; thence along said Easterly
line of said Pryor Homestead, in a general Northerly direction to the intersection of said
Easterly line with the centerline of the California State Highway, as shown on said map; thence
in a general Northeasterly direction, along said last mentioned centerline to Engineer's Station
464+01.02; thence Southeastern• to the Point of Beginning.
(E) Commencing at the most Southerly corner of Parcel 13, as shown on the Record of Survey
Map recorded in Book 49, Page 24 of Record of Surveys in the Office of the County Recorder of
Orange County, California; thence North 59019'20" West 167.89 feet along the Southwesterly
boundary of said Parcel 13; thence South 1609'20" East 133.47 feet; thence South 29°:14'20" East
. 114.93 feet; thence North 79042'40" East 62.64 feet; thence North 9°03'50" West 70.39 feet;
thence North 26054'40" East 74.81 feet to the Point of Beginning.
(F) Beginning at the Northeasterly terminus of that certain course described in the Deed to the
State of California, recorded in Book 4248, Page 286, Official Records, in said office, as having
a bearing and distance of "South 31019'36" West, 1018.78 feet"; thence along said certain
course, South 31019'36" West 100.43 feet: thence North 39°54'08" Fast 100.16 feet; thence
North 38003'30" East 200.06 feet-, thence North 35°11'38" East 400.12 feet; thence North
36°37'34" East 359.76 feet to the Easterly line of a 60.00 foot strip of land as described in the
Deed to the State of California, recorded in Book 281, Page 243 of Deeds in said office; thence
along said Easterly line North 27012'32" East 61.11 feet to that certain course described in Gist
mentioned Deed as having a bearing and distance of "South 3603734" West, 1500.00 feet";
thence along last mentioned certain course, South 363734" West 1020.05 feet to the Point of
Beginning.
. October 12, 1998
Page 8 of 1 l
W.O. 1890-14196
H&A Legal No. 4588
Prepared By: 11. toss _
Ck'd By: R. Williamshj I ..
III
• Excepting therefrom that portion included within the land conveyed in said deed to the State of
California, recorded in Book 4800, Page 195, Official Records.
(G) Beginning at a point in said certain course described in Parcel (£) above as having a
distance of 1018.78 feet, distant thereon North 31 ° 19'36" East 96.42 feet from the Southwesterly
terminus of said last mentioned certain course: thence North 38°37'52" East 193.79 feet; thence
North 16039'26" East 97.29 feet to said last mentioned certain course; thence along said last
mentioned certain course, South 31019'36" Nest 286.34 feet to the Point of Beginning.
(H) Beginning at the Northwesterly terminus of that certain course described in said Deed
recorded in said Book 4248, Page 286, as having a bearing and distance of "South 3302542"
East, 350.49 feet"; thence along said last mentioned certain course, South 33°25'42" Fast 27.40
feet; thence North 4°4 f55" East 218.15 feet; thence North 3044'43" lvest 95.73 feet to a point
in that certain course described in last said Deed as having a bearing and distance of "South
• 1542" west, 380.21 feet'; distance thereon North 5'15'42" East 291.29 feet from the Point of
Beginning; thence along said last mentioned certain course, South 5°1542" West 291_29 feet to
the Point of Beginning
(I) That portion of said land conveyed to the State of California by Deed recorded August 30,
1971 in Book 9782, Page 185, Official Records.
0) That portion of said land conveyed to Jerry W. Neely and Nancy C. Neely, husband and wife,
by Deed recorded October 20, 1977 in Book 12423, Page 126, Official Records.
Also excepting therefrom that portion lying Northerly of the following described line:
Beginning at the Westerly terminus of the course described as "N71°47'40" W 110.65 feet' in
exception "(B)" mentioned above: thence North 78°09'48" West 190.36 feet; thence South
October 12. 1998
•
Page 9 of 1 I
W.0.1890-14196
H&A Legal No. 4588
Prepared By: H. Foss
Ck'd By: R. Williams'tj
72024'27" West 360.92 feet; thence North 62°41'06" West 148.75 feet to a point on the course
• described as "S15038'32" W 259.62 feet" in exception "(D)" described above.
PARCEL C
Parcel 2, in the City of San Juan Capistrano, County of Orange, State of California, as shown on
a map filed in Book 153, Pages 12 to 14 inclusive of Parcel Maps, in the Office of the County
Recorder of said County, California.
PARCEL D
That portion of Lots 7 and 13, in the City of San Juan Capistrano, County of Orange, State of
California, as shown on a map filed in Book 4, Page 15 of Record of Surveys, in the Office of
County Recorder of said County, described as follows:
Beginning at the true point of beginning described in a Deed to Darmi, Inc., recorded January
• 9, 1962 as Instrument No. 5572, in Book 5969, Page 672, Official Records of said County, said
point of beginning being the Southerly terminus of a course described as South 22°4500" West
2043.78 feet in said Deed, said point also being an angle point in the Northerly line of said Lot
7; thence South 74020'00" West 617.11 feet to the Northeasterly corner of said Lot 13; thence
62"30'45" West 1127.52 feet; thence South 61°04'00" West 1300.17 feet; thence South 76"00'00"
West 239.56 feet to the Northeasterly corner of the land described in Deed to the State of
California, recorded October 19, 1955 in Book 3250, Page 470, Official Records of said Orange
County; thence entering said Lot 13, along the boundary line of the land described in said Deed
to said State of California, South 34'14'14" East 251.45 feet; thence South 41"11'00" East 438.72
•
feet; thence South 25030'17" East 293.69 feet, more or less, to a point in the line that is the most
Westerly angle point in the boundary of land Deeded to DARMI, Inc., a California Corporation.
in Deed recorded January 9, 1962 as Instrument No. 5572, in Book 5969, Page 672, Official
Records of said County; thence along said DRMI, Inc. boundary line, the following courses and
October 12, 1998
Page 10 of 1 I
W.O. 1890-14196
H8c4 Legal No. 4588
Prepared By: H. Foss
Ck'd BY: R. Wilhims/tj
• distances: North 78000'00" East 2200.00 feet, and North 22000'00" East 1900.00 feet; thence
leaving said DARMI, Inc. Deed line, North 17°40'41" Nest 637.14 feet, more or less, to the
Point of Beginning.
•
Except therefrom that portion described in the Deed to the City of San Juan Capistrano,
recorded July 30, 1970 in Book 9361, Page 34 of Official Records.
Note: The above legal description is being provided to describe an Assessment District only.
October 12,19%
Page I 1 of 1 I
W.O. 1890- 14 196
H&A Legal No. 4588
Prepared By: H. Foss
Ck'd By: R. Williamvtj
EXHIBIT `B"
DEFINITIONS
The defined terms set forth below shall have the definitions given to them
herein:
"Amended Ordinance" shall have the meaning given to such term in Paragraph
B of the Recital to the Agreement.
"Amending Resolution" shall have the definition given to such term in
Paragraph C of the Recitals to the Agreement.
"Annual Assessment" shall have the meaning given to it in Section 6.1 of the
Agreement.
"Association" shall mean Pacifica San Juan Community Association, a
California nonprofit mutual benefit corporation.
"Association's Surficial Soils Subsidence Fund" shall have the meaning given
to it in Section 6.1 of the Agreement.
"Association's Surficial Soils Subsidence Account" shall have the meaning
given to it in Section 6.1 of the Agreement.
"Authorized Monies " shall have the meaning given to it in Section 5.3 of the
Agreement.
"Board" shall mean the Board of Directors of the Association. "City" means the
City of San Juan Capistrano, California.
"Claims Adjuster" shall have the meaning given to such term in Section 3 of the
Agreement.
"Council" shall have the meaning given to it in Paragraph `B" of Recitals of the
Agreement.
"Covered Repairs" shall mean Damage to Lots, structures or public/private
improvements due to soil displacement occurrences occurring after the Developer Repair
Period shall be corrected by the Geologic Hazard Assessment District with funds from the
Surficial Soils Subsidence Fund. The costs of performing the Covered Repairs shall be
deemed surficial soils subsidence expenses and shall be paid from the Surficial Soils
Subsidence Fund.
"Covered Slopes" means the slopes within the Property described in Section 2.5 of
the Agreement and shown on Exhibit "C" attached hereto.
"Declaration" shall have the meaning given to it in Paragraph "E" of Recitals of
the Agreement.
"Developer" means SJD Partners, Ltd., a California limited partnership
"Developer Repair Period" shall mean the period that Developer will be required
to make or cause to be made all repairs to correct any damage to Lots, structures or
public/private improvements due to soils displacement at Developer's sole expense. The
period shall commence on the first sale of land within the Project.
"Director" shall have the meaning given to it in Section 5.3 of the Agreement.
"DRE" shall mean the California Department of Real Estate and any successor
thereto.
"Project" shall have the meaning given to it in Paragraph A of the Recitals to
this Agreement.
"Project Fund Amount" shall have the meaning given to it in Section 6.1 of the
Agreement.
"Property" means that certain real property more particularly described on
Exhibit "A" attached hereto.
"Soils Subsidence" means is defined as displacement of a manufactured slope at a
depth of up to three (3) feet with a vertical movement of one foot or more, regardless of
cause. Soils Subsidence does not include surface cracking and fissures, including
desiccation cracks, or erosion (defined as the wearing away of surface of the slope, as
opposed to movement of the slope, resulting from the force of water, wind, persons, or
vehicles moving over the surface, unless erosion ultimately results in displacement).
Surficial damage shall be considered catastrophic if due to the extent of movement,
sufficient funds as required under Section 5.1 herein are not available to repair the damage.
"Soils Subsidence Remediation Program' shall have the meaning given to it in
Paragraph C of the Recitals and in Paragraph 2.1 of this Agreement.
"Tract" means Tract Nos. 14196 and 15609, as more particularly described on
Exhibit "A" attached hereto.
EXHIBIT C
COVERED SLOPES
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