Loading...
05-1101_SJD PARTNERS, LTD._Agenda Report_D611/1/2005 AGENDA REPORT D6 TO: Dave Adams, City Manager 9**' FROM: Nasser Abbaszadeh, Engineering & Building Director SUBJECT: Consideration of Agreement Establishing Soils Subsidence Remediation Program; Tentative Tracts 14196 and 15609 (excepting therefrom Tract 15686), (SJD Partners, Ltd.) (Pacifica San Juan) RECOMMENDATION By motion; approve the Agreement Establishing Soils Subsidence Remediation Program with Pacifica San Juan Community Association and SJD Partners, Ltd. for Tentative Tracts 14196 (excepting therefrom Tract 15686) and 15609 for SJD Partners, Ltd. SITUATION A. Summary and Recommendation Tentative Tracts No. 14196 (excepting therefrom Tract 15686) and 15601, Pacifica San Juan, previously known as Pacific Point, is required to establish by agreement, a Soils Subsidence Remediation Program as provided by City Municipal Code Section 9-3-545, and as conditioned by Resolutions No. 92-6-16- 4, condition 1(c) and No. 03-09-16-06, condition 2.17(g) respectively (Attachments 1-A & 1-B). The agreement, provided in Attachment 2, provides the mechanism to establish such program. The agreement has been reviewed by the City Attorney and found to be consistent with the provisions of the Code. Staff is, therefore, recommending its approval. B. Background On June 6, 1992, the City Council approved Pacific Point, Tentative Tract Map 14196, which allowed the subdivision of a 256 acre parcel in accordance with the Forster Canyon Comprehensive Development Plan (CDP 81-1) for the Forster Canyon Planned Community. On September 16, 2003, the City Council approved Pacifica San Juan's Tentative Tract Map 15609, a portion of Tentative Tract Map 14196, which allowed a rezone entitlement to amend a portion of the Forster Canyon Planned Community to modify existing development and zoning standards and permit up to 416 dwelling units within the Pacifica San Juan portion of the Planned Agenda Report November 1, 2005 Page 2 Community. The conditions of approval mentioned in the summary require the developer to provide a Soils Subsidence Remediation Program. The final maps associated with both tentative tract maps have been submitted to the City and are currently in map review process. On August 15, 1995, the City Council passed, approved and adopted Ordinance No. 768, codifying into the Municipal Code Section 9-3.545, Soils Subsidence Remediation Program of Title 9, Article 5, "Land Use Remediation Program of Title 9, Article 5, "Land Use". This program consists of two parts: 1. Surficial Soils Displacement Element: Directed at minor slope displacement, defined by the Municipal Code as not exceeding three feet in depth. The program provides for the developer to deposit an initial amount of funds based on the slope areas maintained by the HOA. As residents move into the development, a portion of their monthly fees would be put into this fund. Once the residents' deposits reach 75% or more of the developer's initial deposit, then that deposit would be released back to the developer. 2. Catastrophic Soils Displacement Element: Requires the formation of a Geologic Hazard Abatement District (GHAD). The GHAD provides a mechanism by which any major slope failure could be abated by assessment to the property owners. It is intended to provide for repairs in the long term beyond the developer's obligation. This Agenda Report deals only with the Surficial Soils Displacement Element. The Catastrophic Soils Displacement Element is concurrently being formed and processed separately as it requires City Council authorization to initiate the District, followed by a public hearing process. SJD Partners, Ltd. Agreement: The Agreement (Attachment 2) has been drafted and reviewed by City staff and the City Attorney and found to be consistent with the Municipal Code requirements. Important elements provided in the agreement include: 1. Developer's liability for any slope failure within the first three-year period. 2. Surficial slope damages could be paid for using the Geologic Hazard Abatement District if the costs exceed the amount in the Surficial Slope Damage Program fund. Agenda Report November 1, 2005 Page 3 3. Return of developer's funds consistent with the requirements of the San Juan Municipal Code. 4. Homeowner assessments to special fund. The City Attorney has reviewed this Agreement and found it to be consistent with the City's Municipal Code requirements and other applicable provisions of law. Staff believes the Agreement is acceptable and recommends approval by the City Council. FINANCIAL CONSIDERATIONS There is no cost impact to the City's General Fund. PUBLIC NOTIFICATION SJD Partners, Ltd.* Pacifica San Juan Community Association (HOA) * Agenda report included RECOMMENDATION By motion; approve the Agreement Establishing Soils Subsidence Remediation Program with Pacifica San Juan Community Association and SJD Partners, Ltd. for Tentative Tracts 14196 and 15609 (excepting therefrom Tract 15686), for SJD Partners, Ltd. Respectfully submitted, Prepay by: Nasser Abbaszadeh, P.E. a ucair Engineering & Building Director ' r Engineer SS Attachments: 1-A. Condition of approval 1(c) of Resolution No: 92-6-16-4, for Tentative Tract Map 14196 1-B. Condition of approval 2.17(g) of Resolution No: 03-09-16-06 for Tentative Tract Map 16634 2. Agreement Establishing Slope Displacement Warranty Program 3. Vicinity Map a) The equestrian trail design, including supporting documentation of all necessary easements; shall be approved by the City Engineer. b) A preservation and protection plan shall be submitted for approval by the Director of Planning. It shall address trees, limits of grading and areas of construction activities, project site access, etc. c) A soil subsidence insurance or warranty program shall be approved by the City Council. construction mitigation program that complies with Section Y1 -G of the CDP shall be approved by the Director of Planning and the Director of Engineering and Building and Safety. e. The natural open space boundary shall be delineated on site to be readily identifiable to construction workers for approval by the Director of Planning. Fencing may be required as determined by the Director of Planning. f. Any off-site grading will require written permission of the property owner affected. Said written notice shall be notarized and filed with the City Engineer. 2. Prior to final map approval, the subdivider shall complete the following: a. CC&R's shall be approved by the City Council to establish a Homeowners Association to provide for the maintenance of all recreational facilities; landscaping and common areas. Landscape maintenance standards shall comply with the City's severe tree trimming standards, Section 9-3.625 of the Municipal Code. b. Rolled curbs and drainage swales may be approved by the City Engineer for Streets C, J, K, L, M, N, O; P, R do S, subject to review of storm water runoff containment in the streets and protection of parkway improvements. Where adverse conditions occur, standard curb and gutter shall be provided. C. A Geologic Hazard Abatement District shall be formed and approved by the City Engineer. d. Sewer improvements shall include provisions for servicing of McCracken Hill' area which is presently using septic facilities. Sewer improvements shall be gravity flow at all locations. ' e. The design for the grass -lined channel adjacent to the west side of "A" Street shall be subject to review and approval by the City Engineer. Where adverse conditions occur, standard storm drain shall be designed and constructed. -3- ATTACHMENT 1-A interior of the subdivision designated as private shall remain private and shall bemaintained by the HOA and/or Sub -association, or shall make other provision for maintenance, as approved by the City Council. (Engr.) b. The establishment of setback and height requirements for additions and accessory structures conforming to the development standards of the Comprehensive Development Plan for the project and the San Juan Capistrano Land Use Code. (Ping.) C. A statement indicating that open space (as provided in the lettered lots on f the tentative map) shall be retained as indicated on the final map by the Homeowners Association, or other entity approved by the City, as designated open space with no structures allowed in perpetuity and maintained by a Homeowner Association and/or the Sub -association or other entity approved by the City, and that no development or encroachment shall be permitted within the designated open space, except as permitted for the Open Space district in the project's Comprehensive Development Plan. (Ping.) d. A statement indicating that proposed amendments to any of the CC&R's shall be submitted for review to the Planning Director and that, if the Director determines that the amendment affects any project conditions of approval or other City regulations or requirements, the amendment will then require City Council approval prior to the amendment becoming valid. (Ping.) .. .e. Fire prevention and defense provisions including: 1) a fire lane map, if required by the Fire Chief; 2) provisions which prohibit parking in fire lanes and a method of enforcement; 3) provisions for maintenance of fuel modification zones including the removal of all dead and dying vegetation and the inspection and correction of any deficiencies in the irrigation system three times a year; 4) a method for keeping fire protection access easements unobstructed; and 5) a requirement for approval of the Fire Chief for modifications such as installation of speed humps or bumps, control gate changes, or parking changes. (Fire) f Criteria for maintenance of and prohibition of building construction or ornamental landscaping within private drainage facility easements, slopes and fuel modification zones.within the project by the HOA (Engr.) h. Provisions for maintenance by the homeowners association of all private drainage facilities, including retention/detention basins, that are made a part of the National Pollutant Discharge Elimination System (NPDES) 20 09-16-20^" ATTACHMENT 1 -13 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's is entered into as of , 2005, by and among SJD Partners Ltd. ("Developer"), Pacifica San Juan Community Association ("Association") and the CITY OF SAN JUAN CAPISTRANO ("City's, 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"), in the City of San Juan Capistrano, County of Orange, State of California. B. On September 15, 1987, the City Council ("Council's of the City passed, approved and adopted Ordinance No. 605 ("Original Ordinance'), requiring that certain residential developments in the City include a Soils Subsidence Remediation Program. On 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. ATTACHMENT 2 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 the homeowners' 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 remediation programs at any time implemented by the City. AGREEMENT 1. Definitions. Defined terms whose initial letters are capitalized herein shall have the meanings given to such terms as set forth in this Agreement, including on Exhibit `B" attached hereto. 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 the first 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 Surficial Soils Subsidence N Fund. In the event funds available in the Association's Surficial Soils Subsidence Fund is insufficient to cover the cost of all such Covered Repairs, the Association shall levy and collect special assessments against the owners of the residential lots to restore the Surficial Soils Subsidence Fund to the minimum seventy-five percent (75%) level as often as necessary. 2.4 Surficial Soils Subsidence Fund. The Association is required to collect and maintain a restricted fund to correct damage to individual Lots, structures, or public/private improvements due to soils displacement occurrences. This restricted fund is called a Surficial Soils Subsidence Fund. Developer is required to deposit an initial amount determined by the City into the Surficial Soils Subsidence Fund. Regulation and use of the Surficial Soils Subsidence Fund shall be in accordance with the following: (a) Funds deposited in the Surficial Soils Subsidence Fund can only be used for actual costs associated with correcting Soils Subsidence. The initial security for the Surficial Soils Subsidence Fund shall be in such form and manner as to guarantee and secure the performance of the Developer and shall consist of one of the options set forth in Section 5.2 below. (b) Special Assessments shall be applied to all Lots within the Project. Said Special Assessments shall commence on the first Close of Escrow of a Lot in the Project pursuant to the regulations of the California Department of Real Estate. Said Special Assessments shall be collected by the Association until the Surficial Soils Subsidence Fund reaches a predetermined minimum as established by the City. Developer shall be able to withdraw its initial deposit provided the Surficial Soils Subsidence Fund does not fall below seventy-five percent (75%) of the predetermined minimum. If a claim occurs during the period the Developer is responsible, and the Surficial Soils Subsidence Fund drops below the seventy-five percent (75%) level, the Developer shall restore such fund to the minimum seventy-five percent (75%) level. After the end of the Developer Repair Period (and after any deposit required by Developer at that time pursuant to Section 18.8.3 below), the Association shall levy Special Assessments against the Owners to restore the Surficial Soils Subsidence Fund to the minimum seventy-five percent (75%) level as often as necessary. (c) If the amount in the Surficial Soils Subsidence Fund is less than the minimum amount as specified in Section 5.1 at the conclusion of the Developer Repair Period, then the Developer shall deposit sufficient funds to meet the minimum requirements. (d) Developer has reserved an exclusive license for the benefit of the Association to enter onto Common Area and individual Lots to allow the Association to maintain and inspect all landscaping, irrigation and drainage devices, and all other natural and artificial conditions which affect or might affect the integrity of slopes which are subject to the provisions of this program. (e) Any proposed alterations by Owners to the landscaping, grading, irrigation or drainage installed on Covered Slopes on individually owned Lots shall be subject to prior review and approval by the Association and the City. 2.5 Applicability of Soils Subsidence Remediation Program. Slopes subject to the soils subsidence remediation program are shown on Exhibit C attached hereto and defined by the City as follows ("Covered Slopes': (a) Common Area Slopes. All designated common area landscape slopes maintained by the Association pursuant to the Declaration or any notice of addition or supplemental declaration. (b) Manufactured Slopes. All manufactured slopes having a minimum height of five (5) feet in vertical height. (c) All natural slopes within two hundred (200) feet of individual lots, or within onr hundred fifty (150) feet if within the fuel modification zone. 2.6 Reserved Rights. Developer and the Association reserve the right to assert claims against any person or entity responsible in whole or in part, by reason of negligence or willful misconduct of the person or entity against whom the claim is asserted, for displacement of soil on the slopes, whether covered by the Soils Subsidence definition or not, including without limitation, claims against one another. These reserved rights are subject to all applicable statutes of limitation, including without limitation, the ten (10) year limitations period provided by Section 337.15 of the California Code of Civil Procedure and the Right to Repair Law provided in Title 7, Section 895 to 945.5 of the California Civil Code. 3. Claims Procedures and Adjustments. 3.1 During the Developer's Liability Period for the Tract, the Soils Subsidence Remediation Program shall be administered by the Developer. Thereafter, said program shall be administered by the Association. The Association shall retain the services of an independent claims adjusting service for all Long Term Covered Repairs in accordance with the requirements set forth in Section 3.2 below. The service shall be responsible to adjust all claims for work which are claimed to be within the coverage of this program. Claims asserted to be within the coverage of this program will be processed by forms provided by the Association and filed with the independent adjuster, who will promptly adjust such claims after obtaining an analysis on the scope and cost of completing all necessary repairs. The Surficial Soils Subsidence Fund will compensate for the cost of the independent claims adjusting service. 3.2 In the event any party receives notice of a claim that a Soils Subsidence has occurred, such party shall give all other parties written notice of such claim setting forth the name and address of the claimant and the nature and extent of the claim to the extent such information is available. Within fifteen (15) days after receipt of any such notice, the Association shall select an independent and reputable claims adjusting service, geologist and/or soils engineer (duly licensed to the extent required) with experience in handling soils and Soils Subsidence matters (referred to herein as a "Claims Adjuster"). Any Claims Adjuster so selected shall be subject to approval by the other parties to this Agreement, which approval shall not be unreasonably withheld, delayed or conditioned. Any disapproval of the selected Claims Adjuster shall be given in writing to the administrator of the Soils Subsidence Remediation Program at the time of the claim and to the other parties to this Agreement within ten (10) days following receipt by the disapproving party of written notice of the 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 4 mutually agree upon an arbitrator within the said fifteen (15) day period, then any party to this Agreement may thereafter request in writing that the presiding Judge of the Superior Court of Orange County, California select and appoint the arbitrator, and any person so selected and appointed by such Judge shall serve as the arbitrator hereunder upon his/her acceptance of such appointment. The arbitrator appointed must be independent and have experience in dealing with soils and Soils Subsidence matters. Final decision by the arbitrator must be made within ninety (90) days from the date the arbitrator is appointed. The parties to this Agreement may submit the names and resumes of proposed Claims Adjusters to the arbitrator, but the arbitrator shall be free to select any Claims Adjuster he or she wishes to select so long as the Claims Adjuster is independent, duly licensed to the extent required, and has experience in handling soils and Soils Subsidence matters. Each party to this Agreement shall bear its own attorneys' fees, costs and expenses incurred in connection with the arbitration. The costs and fees of the arbitrator shall be borne equally by the parties to this Agreement. The decision of the arbitrator in selecting a Claims Adjuster shall be final and judgment may be entered on it in accordance with applicable law in any court having jurisdiction over the matter. The Claims Adjuster selected by the arbitrator as aforesaid shall be deemed the "approved" Claims Adjuster. The approved Claims Adjuster shall be promptly engaged by the party then administering the Soils Displacement Warranty program, and the Claims Adjuster so engaged shall be responsible for promptly investigating, allocating responsibility for and adjusting all claims which allege that a Soils Subsidence has occurred that is within the coverage of the Soils Subsidence Remediation Program. After reasonably appropriate investigation and analysis, the approved Claims Adjuster shall determine, among other things: (a) whether the claim is covered by the Soils Subsidence Remediation Program and if so then the scope and estimated cost of the Covered Repairs, (b) who has responsibility under this Agreement for actually performing the Covered Repairs or causing them to be performed, and (c) who has under this Agreement the financial responsibility for the requisite Covered Repairs. The Claims Adjuster shall complete his/its analysis as soon as reasonably possible and shall thereupon issue a written report to all of the parties to this Agreement, which written report shall set forth its findings on the issues referred to above and such other matters as the Claims Adjuster deems appropriate. The parties agree that they shall promptly comply with the decisions and findings of the Claims Adjuster as set forth in such report. The parties intend that the decisions and findings of the Claims Adjuster shall be deemed binding upon them and shall be enforceable against them by a court of competent jurisdiction and any party failing to comply with such decisions and findings of the Claims Adjuster as they affect such party shall be liable for damages and all other relief as may be determined appropriate by a court of competent jurisdiction. 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. s 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) Deposit 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 pon Developer's Default. If during the Developer Repair Period, in accordance with Section 2.2., above, or the period subsequent to the Developer Repair Period pursuant to the terms of Section 2.3, above, Developer (or its successor) fails to perform its obligations as required under those Sections, the City Attorney shall provide written notice to Developer of such failure and provide Developer with an opportunity to cure in accordance with Section 4, above. In the event Developer does not cure its failure of performance within the cure period, then the Council may, by resolution or other official Council action, after a noticed public hearing, authorize the Director of Engineering and Building ("Director") 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 6 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 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 third -party disputes into the general reference procedure prescribed herein to the extent permitted by law. All parties shall cooperate in 8 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 01 INVALID OR UNENFORCEABLE, IN WHOLE OR IN MATERIAL PART, SUCH THAT THE RESOLUTION OF THE DISPUTE SHALL PROCEED BY WAY OF CIVIL LITIGATION PROCEEDINGS, EACH PARTY NONETHELESS WAIVES THE RIGHT TO JURY TRIAL WITH RESPECT TO SUCH DISPUTE. 8. Miscellaneous. 8.1 Additional Limitations on Soils Subsidence Remediation Program. Nothing to the contrary in this Agreement withstanding, it is agreed that: (a) The Soils Subsidence Remediation Program provided herein expressly excludes Soils Subsidence or any other soils or earth movement or failure of slopes, regardless of cause, not expressly referred to herein, and any and all resulting damage, whether arising out of covered Soils Subsidence or not. (b) In no event will performance of repair work by any person or entity or any other circumstances extend the Developer Repair Period provided herein. 8.2 Reservation of License and Right to Enter. (a) There is hereby reserved for the benefit of Developer and its successors and the Association, a license and right to enter onto the common areas and individually -owned lots within the Project so that Developer or its successors and the Association and their agents may (a) inspect all landscaping, irrigation and drainage devices, and all other natural and artificial conditions which affect or might affect the integrity of the slopes which are the subject of the Slope Warranty, and (b) perform the duties of Developer to the full extent provided for herein. (b) Appropriate provisions in the grant deeds will grant the Association a license and right to enter onto the common areas and individually -owned lots of the Project so that the Association or its agents may inspect, maintain and repair the slopes within the Project to the full extent provided for herein. 8.3 Review and Approval by Association. Any proposed alterations by homeowners or any other person or entity to the landscaping, grading, irrigation or drainage on the residential lots or common areas will be subject to review and approval by the Board of the Association and/or by its Architectural Review Committee. 8.4 Reference in Deeds. The grant deeds for the residential lots will reference this Agreement and the Soils Subsidence Remediation Program provided herein. The provisions of this Agreement constitute covenants running with the land and an equitable servitude as to the real property referenced herein. 8.5 Collection and Re op rting. 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 or assignees, including without limitation the obligation to provide security for the Developer Repair Period herein. Upon the City's receipt of reasonably adequate substitute security from any assuming party, the Developer's Security or the appropriate prorata portion thereof shall be appropriately released and exonerated to Developer by the City. 8.11 Construction of Agreement. Each party has cooperated in the drafting and the preparation of this Agreement. Hence, in any construction to be made of this Agreement, the same shall not be construed against any party. This Agreement shall be construed under California law. 8.12 Counterparts. This Agreement may be executed in counterparts, and when each party has signed and delivered to the other at least one such counterpart, each counterpart shall be deemed an original, and when taken together with the other signed counterparts, shall constitute one agreement, which shall be binding upon and effective as to all parties. 8.13 Severability and No Waiver. The invalidity or unenforceability of any provision of this Agreement shall not invalidate or render unenforceable any of the other provisions of this Agreement. No waiver of any provision of this Agreement shall constitute a waiver of any other 0 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 twenty-four (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: City Clerk CITY: THE CITY OF SAN JUAN CAPISTRANO By: Its: DEVELOPER: SJD Partners, Ltd. a California limited partnership By: (JI tj Name. Its: ASSOCIATION: Pacifica San Juan Community Association, a California noMrofltpputual benefit corporation By: Name: Its: By: - Name: Its: /1/1,-e— Apprr1day as to form and content This of OLID 3� , 2005 City Att ney City of San Juan Capistrano 13 STATE OF CALIFORNIA ) )ss. COUNTY OF ORANGE ) On October 17 , 2005 before me, Cynthia Oster personally appeared Bruce Elieff personally known to me (or pr-eved to me on the basis of satin f ,.*efy evide ee) 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. WITNESS my hand an ci se 1. CYNrrlaosTE 2Commission # 1 328680 1 Notary Public - California :z Signature orange County My Comm. Expires Nov 6, 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 (or- pFeved to me the b o f tis f eter is �) to be the person(s) whose name(s) V Vll 411V UN1U Vl J(1�1U141V 4V1,' VYI[1V1iV �i 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 CASTER Commission 11328680 z Notary Public - California z ®range County > W Comm, EXPI S 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 (^r . a , fne ^„ the basis of satisf etevy 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. WITNESI Signature CYNTHLAOSMR Commission # 1328680 z Notary Public - California zz Orange County My Comm, moires Nov 6, 2006 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 filed 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 2553'20" West 380.84 feet to a point; thence North 76024'40" West 663.39 feet to a point; thence South 47034'20" West 119.84 feet to a point; thence North 20°44' West 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 Survevs, 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 corner 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 • October 12, 1998 Page lofll W.O. 1890-14196 H&r\ Legal No_ 4388 Prepared By: It. Foss Ck'd Bv: R. Williatns/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 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 1611 Page 219 of Official Records; thence South 54019'50" East 427.04 feet; thence North 81°10' East 385.20 feet; thence North 35°02'20" East 497.17 feet; thence South 22003'10" East 1386.0 8 feet to the Northerly line of said Lot 8; thence North 20°07'04" West 293.57 feet along last mentioned course (on a different basis of bearings) 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 87°18'00" Vest 155.28 feet; thence South 6°55'00" West 181.47 feet; North 87°40'00" West 619.21 feet; thence South 14°32'00" West 379.19 feet to the course cited as, "North 76024'40" W 663.39 feet" herein above. October 12, 1998 Page 2 of I 1 W.O. 1890-14196 H&A Legal No. 4588 Prepared By: H. Foss CkA By: R. Williamsltj • Parcel A-2 Beginning at a point which bears South 64°06"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 462 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 76024'40" East 504.26 feet; thence South 25°51'40" East 222.39 feet ; thence South 5°0740" 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 tlhe 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 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 frorn said point of' beginning, North 35°49'02" East 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 3 7. 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" East 427.04 feet; thence North 81°10' East 38520 feet; • October 12. 1998 Page 3 of I 1 W.O. 1890-14196 H&.<\ Legal No. 4588 Prepared By: H. Foss Ck'd By: R. Williams/tj thence North 35002'20" East 497.17 feet; thence South 22°03'10" East 1386.08 feet; thence North 64106'40" West (Record North 84°03'45" West) 1896.49 feet to the point of Beginning. I Excepting therefrom, all that portion of said land lying I-Vesterly 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 14100'59" 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 20°07'04" 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 54°25'03" West 151.70 feet; thence North 48°42'00" West 538.26 feet; thence North 87'18'00" West 155.28 feet; thence South 6°55'00" 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 7602440" 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 reap 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 I W.O. 1890-14196 H&1 Legal No. 4588 Prepared By. 11. Foss Ck'd By: R. Williams/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 35°49'02" 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 10°26'40" East 251.43 feet; thence South 21°29'20" West 634.52 feet, thence South 59°19'20" East 1185.00 feet; thence North 49°59'20" East 706.11 feet; thence South 5007'40" East 1032.12 feet; thence South 22°45' X1'est 233.36 feet; thence South 74°20' West 617.11 feet; thence South 62030'45" West 1127.52 feet; thence South 61°04' Nest 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 0590' East 1047.16 feet; thence North 13°32' East 431.67 feet to the intersection of said Pryor Homesteadwith the centerline of • said California State Highwav; 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 38°54' East 1565.30 feet to the Engineers Station 454+711.88 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 Engineer's Station 456+90.05; thence continuing along the centerline of said highway, North 26°24' 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 frorn Marco F. Forster and Elizabeth Forster to Wendell K. McCraken and Helen V. McCraken, Recorded in Book 1603. Page 298 of Oficial Records, Records of Orange County, California, Said point being South 59°19'20" East 459.10 feet from the most Westerly • October 12, 1998 Page 5 of 1 1 W.0.1890-14196 Li&A Legal No. 4588 Prepared By: H. Foss Ck'd By: R. Williams/y 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 5400010"; thence a Southwesterly direction along the arc of above mentioned curve, 141.40 feet; the South 71052'00" 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 23007'54'; 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 39°15'40" 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 Official Records, thence South 35°49'02" 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 6134.52 feet; thence South 27°59'50" Nest South 86.56 feet to the beginning of a curve concave to the Northwest, having a central I 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"46'50" 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 11030'00" 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" East 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 73°,30'02" Fast 71.67 feet; thence South 85°00'06" East 200.15 feet; thence South 40°17'40" East 158.73 feet; thence South 3°04'20" Nest 149.8:5 feet: thence South 51007'20" West 146.40 feet; thence South 63°12'20" West 69.65 feet; thence South 83°07'20" Nest 127.60 feet; thence North 71'47'40" Nest 110.65 feet; thence North 1 °22'20" October 12, 1998 • Page 6 of 1 I W.O. 1890-14196 H&A Legal No. 4588 Prepared By: H. Foss 5 Ck'd By: R. Williatns/ij East 251.90 feet; thence North 13°4210" 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 59°59'20" West 706.11 feet, and thence North 59019120" 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; ntnning thence from said point of beginning, North 59019'20" I'Vest 301.23 feet; thence South 2°38'20" West 208.06 feet; thence South 17°21'40" East 153.30 feet; thence North 17051'20" 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 tutee, 96.36 feet; thence North 54°39'50" Fast 91.28 feet; thence North 62038'20" 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 the 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°55'28" East 134.41 feet; thence South 56°33'06" West 9.71 feet; thence North 53°22'26" West 30.00 to a point on a line parallel with and distant Southeasterly 79.00 feet, measured at right angles from said centerline said point being opposite Engineer's 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" West 1018.78 feet; thence South 16°55'16" West 137.47 feet; thence South 53128'47" East 467.53 feet; thence South 15°38'32" West 259.62 feet; thence South 47028'28" West 685.78 feet; thence South 5'15'42" West 380.21 feet; thence South 33°25'42" 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.O. 1890-14196 H&A Legal No. 4588 Prepared By: H. Foss Ck'd By: R. Willianis/ij 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 76648'32" 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 Southeasterly 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 59'19'20" West 167.89 feet along the Southwesterly boundary of said Parcel 13; thence South 1109'20" East 133.47 feet, thence South 29°54'20" East . 114.93 feet; thence North 79042'40" East 62.64 feet; thence North 9003'50" 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 31°19'36" West, 1018.78 feet"; thence along said certain course, South 31°19'36' West 100.43 feet: thence North 39°54'08" East 100.16 feet; thence North 38°03'30" East 200.06 feet; thence North 35011'38" 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 27°12'32" Fast 61.11 feet to that certain course described in fist. mentioned Deed as having a bearing and distance of "South 36°37'34" West, 1500.00 feet"; thence along last mentioned certain course. South 3637'34" West 1020.05 feet to the Point of Beginning. • October 12, 1998 Page 8 of 11 V.O. 1890-14196 I -I&A Legal No. 4588 Prepared By: H. Foss Ck'd By: R. Williams/tj • 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 (F) above as having a distance of 1018.78 feet, distant thereon North 31019'36" East 96.42 feet from the Southwesterly terminus of said last mentioned certain course: thence North 3803752" East 193.79 feet; thence North 16°39'26" East 97.29 feet to said last mentioned certain course; thence along said last mentioned certain course, South 31019'36" West 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 33°25'42" East, 3:50.49 feet"; thence along said last mentioned certain course, South 33°2:5'42" East 27.40 feet; thence North 4041'55" East 218.15 feet; thence North 3044'43" West 95.73 feet to a point in that certain course described in last said Deed as having a bearing and distance of "South 5°15'42" West, 380.21 feet"; distance thereon North 5015'42" East 291.29 feet from the Point of Beginning; thence along said last mentioned certain course, South 5015'42" 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. U) 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 78009'48" West 190.36 feet; thence South • October 12. 1998 Page 9 of 1 I W.O. 1890-14196 I -I&A Legal No. 4588 Prepared By: H. Foss Ck'd By: R. Willian►slij 72°24'27" West 360.92 feet; thence North 62°41'06" West 148.75 feet to a point on. the course described as "S 15°38'32" 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°4:1'00" West 2043.78 feet. in said Deed, said point also being an angle point in the Northerly line of said Lot 7; thence South 74°20'00" West 617.11 feet to the Northeasterly corner of said Lot 13; thence 62"30'45" West l 127.52 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 I.ot 13, along the boundary line of the land described in said Deed to said State of California, South 3,1114'14" East 251.45 feet; thence South 41° 11'00" East 438.72 • feet; thence South 25°30'17" 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 D.ARMI, Inc., a California Corporation. in Deed recorded January 9, 1962 as Instrument No. 5572, in Book 5969, Page 672. Oficial Records of said County; thence along said DRMI, Inc. boundary line, the following courses and October 12, 1998 Page 10 of I I W.O. 1890-14196 H&A Legal No. 4388 Prepared By: H. Foss Ck'd By: R. Williams/tj ........... .......... . . .... . .......... . distances: North 78'00'00" East 2200.00 feet, and North 22'00'00" East 1200.00 feet; thence • leaving said DARMI, Inc. Deed line, North 17040'41" West 637.14 feet, more or less, to the Point of Beginning. Except therefrom that portion described in die 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. � 0 • October 12, 1998 Page 11 of 11 W.O. 1890-14196 H&,-'% Legal No. 4588 Prepared By: H. Foss Ck'd By: R. Willianisitj 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 EXHIBIT B "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. ESM g S N O F" 6 V O- VICINITY MAP SCALE: N.T.S. z U O U LLU Q d ATTACHMENT 3