1999-1027_DMB LADERA, LLC_Land Transfer AgreementLAND TRANSFER AGREEMENT copy
THIS LAND TRANSFER AGREEMENT ("Agreement") is entered into as of October
1999 by and between DMB LADERA, LLC, a Delaware limited liability company
("Ladera"), S.C. SLIDE, INC., a California corporation ("SC"), CHARLES and ELIZABETH
CAWTHORNE, JOHN and ANGELA HEINAMAN, GREGORY and LINDA FRYLING,
JOHN and LINDA PETERSON, J.P. and NANCY SCANLON, JACK and KAY HOCKEMA
and KAZUE and CHOON TANAKA (individually as "Stoneridge Owner" or collectively as
"Stoneridge Owners") and THE CITY OF SAN JUAN CAPISTRANO, a municipal
corporation ("The Ci "), who agree as follows:
RECITALS
a. Ladera is the master developer of the Ladera Ranch planned community in
accordance with the Ladera Development Agreement recorded January 17, 1997 in the Official
Records of Orange County, California as Instrument No. 19970027386 ("Development
Agreement").
b. In furtherance of the Development Agreement, Ladera intends to dedicate
certain portions of Parcel 2 of Lot Line Adjustment LL 96-026 (the "Adjacent Property") in the
unincorporated territory of the County of Orange, State of California, as shown on exhibit 'B"
attached to that certain document recorded on November 11, 1996 as Instrument No.
19960587414 in the official records of said county, for open space and other purposes in
accordance with the Development Agreement and an open space agreement with the County of
Orange.
c. SC is a California non-profit mutual benefit corporation whose members are
the Stoneridge Owners who own residential properties in the Stoneridge development
("Stoneridge Properties") located in the City of San Juan Capistrano as more particularly
described in Exhibit A attached hereto.
d. The Stoneridge Owners have experienced land subsidence problems on the
Stoneridge Properties. In order to assist the Stoneridge Owners and SC in curing the land
subsidence problems on the Stoneridge Properties ("Land Subsidence Problem"), The City has
indicated a desire and intention to acquire, via condemnation or transfer in lieu of condemnation,
certain property (the "Property") more particularly described in Exhibit B attached hereto
which is adjacent to the Stoneridge Properties and is currently a part of the Adjacent Property.
e. In lieu of compelling The City to condemn or otherwise take the Property by
means of eminent domain, Ladera has indicated a desire to acquiesce to the transfer of the
Property to The City.
f Upon receipt of title to the Property, The City intends to convey the Property
to SC in order to permit SC to perform the necessary work ("The Repair") to rectify the Land
Subsidence Problem.
g. In order to decrease the costs and expenses of The Repair, SC and the
Stoneridge Owners have requested that Ladera permit SC to utilize another portion of the
Adjacent Property (the "Stockpile Area") described on Exhibit C attached hereto to serve as the
designated area for stockpiling dirt and other related uses during The Repair.
h. The plans and specifications ("Plans") for The Repair are attached as Exhibit
D to this Agreement and are hereby incorporated by reference; provided, The City shall be
responsible for reviewing and approving the Plans and Ladera shall have no responsibility with
respect thereto and/or the adequacy of The Repair inasmuch as Ladera does not believe that the
Stoneridge Properties should have been developed due to the inherent soil problems in this area.
i. The parties agree that no action or inaction of the current or prior land
owner(s), including Ladera, and/or their agents, including Rancho Mission Viejo, LLC, has
contributed to the condition of the Property or the necessity of The Repair.
j. The City, SC and the Stoneridge Owners intend that, upon completion of The
Repair and the satisfaction of all of the conditions as set forth in this Agreement, the portion of
the Property abutting each of the Stoneridge Properties shall become the property of each of the
respective Stoneridge Owners.
k. It is the further intent of The City, SC and the Stoneridge Owners that in
implementing the provisions of this Agreement, there shall be no cost, expense or liability to
Ladera or its agents or The City or its agents.
In consideratio_. )f the mutual covenants, agreements, representations, and
warranties contained in this Agreement, the parties further agree as follows:
1. Transfer of Property to SC. Upon completion of the transfer of the Property by
Ladera to The City, (i) The City shall promptly record a grant deed ("Grant Deed") in form and
substance reasonably satisfactory to SC by which The City grants the Property to SC and (ii) SC
shall immediately cause the concurrent recordation of the declaration of covenants ("SC
Covenants") in the form attached hereto as Exhibit E. All costs associated with the preparation
and recordation of the Grant Deed and SC Covenants shall be paid by SC or, if paid by The City,
shall be reimbursed by SC to The City within ten (10) days of SC's receipt of a statement from
The City.
2. Annexation of Property. Upon completion of the transfer from The City to SC, SC or
the Stoneridge Owners shall promptly apply to The City for annexation of the Property into The
City ("Annexation"). The City shall then process the application for Annexation in a prompt
and reasonable manner.
2.1 Costs of Annexation. All reasonable costs of the Annexation
("Annexation Costs") incurred by The City, including but not limited to staff time, shall be paid
by SC to The City.
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OCOLBI�N2\1891MAR41l 051.D )
2.2 SC Deposit to The City. Upon execution of this Agreement, SC shall pay to
The City the amount of Five Thousand Dollars ($5,000.00) ("SC Deposit") from which The City
may reimburse itself for the Annexation Costs as they are incurred by The City. At such time as
The City reimburses itself from the SC Deposit, The City will deliver to SC an accounting
showing in reasonable detail the amount and nature of the Annexation Costs. If the Annexation
Costs exceed the SC Deposit, SC shall pay the difference to The City within ten (10) days of
receipt by SC of a statement showing the amount due and reasonably adequate detail supporting
the amount due.
3. The Repair. The Repair shall be implemented and constructed as follows:
3.1 Approval of Plans. By their execution of this Agreement, The City has
approved the Plans; provided, however, there shall be no changes or modifications to the Plans
that will cause The Repair to disturb or impact any land owned by Ladera without the prior
written consent of Ladera, which consent shall not be unreasonably withheld or delayed.
3.2 -Qonstruction of The Repair. After this Agreement has been fully executed,
the transfer of the Property by The City to SC has been completed and SC has recorded the SC
Covenants, SC shall promptly commence construction of The Repair. Construction of The
Repair shall be undertaken in a good and workmanlike manner and in compliance with all
applicable laws, codes, ordinances, and regulations in effect at the time of commencement of
The Repair. The Repair shall be performed within the boundaries of the Property and/or the
Stoneridge Properties and shall not in any way disturb or impact any land owned by Ladera
without the prior written consent of Ladera, which consent shall not be unreasonably withheld or
delayed.
3.3 Access for The Repair. Ladera grants to SC a nonexclusive revocable license
and permission to enter upon the Adjacent Property and the Stockpile Area (collectively,
"Access Areas"), to perform The Repair the PropE :-ty in accordance with the Plans and to
store dirt and related materials relating to The Repair on or about the Stockpile Area and for no
other purpose and otherwise subject to SC's strict compliance with this Agreement, including the
following terms and conditions:
a. This permission is solely a license and SC has no rights as owner,
purchaser or tenant solely by virtue hereof.
b. The term of this license shall commence on the date that SC
obtains title to the Property from The City and shall continue until
the earlier of the completion of The Repair, the expiration or other
termination of this Agreement and/or October 1, 2000; and, in such
event, SC shall vacate all portions of the Access Areas.
C. SC shall maintain in full force and effect the insurance required
under this Agreement.
d. All access points and/or roadways proposed to be utilized by SC in
furtherance of The Repair shall be approved by Ladera prior to any
use thereof.
C. SC shall provide written notice to Ladera 24 -hours prior to any
entry upon the Access Areas of the names of any persons utilizing
the license granted under this Agreement and the general locations
on the Access Areas thereof.
f. SC shall comply with the rules and regulations of the Access Areas
("Rules and Regulations"), a copy of the current edition of which
is attached hereto as Exhibit F provided, Ladera shall have the
right to revise and modify the same from time to time at the
discretion of Ladera and SC shall comply therewith upon receipt of
a copy thereof
4. Transfer of Property to Stoneridge Owners. Upon completion of The Repair in
accordance with the Plans, (i) SC shall transfer the Property to the Stoneridge Owners (the
"Transfer") by immediately recording one or more grant deeds (collectively, the "SC Grant
Deed") in form and substance reasonably satisfactory to SC by which SC grants to each of the
Stoneridge Owners that portion of the Property which is adjacent to the property of such
Stoneridge Owner, provided, as a condition to any such transfer and/or the recordation of any SC
Grant Deed, the Stoneridge Owners must have caused the subordination of any and all deeds of
trust, mortgages, ground leases or other instruments of security which encumber any portion of
the Stoneridge Properties of the Stoneridge Owners or any interest of such Stoneridge Owners
therein (collectively, the "Existing Liens") and (ii) SC and the Stoneridge Owners shall
immediately execute and cause the concurrent recordation, with the SC Grant Deed, of the
declaration of covenants ("Stoneridge Covenants") in the form attached hereto as Exhibit G. If
the Stoneridge Owners shall fail or neglect to effect the subordination of the Existing Liens
(including obtaining the consent and agreement of the holder of the Existing Liens) and
otherwise to execute, acknowledge and promptly deliver any such instrument or certificate
required in connection therewith, Ladera may, in aduriion to any other remedies that Ladera may
have, as agent and attorney-in-fact of thr-ionerid< wirers, execute, acknowledge, deliver and
effect to cause the same, and each Stoneridge Owner hereby irrevocably appoints Ladera as each
Stoneridge Owner's agent and attorney-in-fact for such purpose (including obtaining all
necessary consents and agreements of the holder(s) regarding the subordination of the Existing
Liens). SC and each Stoneridge Owner shall fully reimburse Ladera for all sums advanced and
expenses, including but not limited to attorneys' fees, incurred by Ladera for taking such action.
All costs associated with the preparation and recordation of the SC Grant Deed and Stoneridge
Covenants shall be paid by SC and/or the Stoneridge Owners. Notwithstanding anything to the
contrary in this Agreement, Ladera has the right to commence and maintain an action in any
court of competent jurisdiction for specific performance of the covenants and agreements
contained in this Section, and may obtain the aid and direction of the court in the performance of
any of the covenants and agreements contained herein.
5. Structures on Ladera Land. Except for any public or utility easements, including but
not limited to public riding trails and improvements thereto and notwithstanding any other
ordinance, rule, regulation or approval to the contrary, The City, SC and the Stoneridge Owners
shall not construct any structures or improvements on the Property without the prior written
consent of Ladera, which consent shall not be unreasonably withheld.
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6. Release of Ladera and RMV. SC and each Stoneridge Owner (collectively the
"StoneridEe Party" or "Stoneridge Parties'), together with The City, hereby release and
forever discharge Ladera and Rancho Mission Viejo, LLC ("RMV"), together with each member
of Ladera and RMV and any affiliated or subsidiary partnership, limited liability company and/or
corporation and their collective officers, directors, shareholders, employees, agents, attorneys,
insurers and partners (collectively "Ladera Indemnitees") of and from any and all actions,
causes of action, claims, rights, demands, debts, liens, damages, obligations, liabilities, costs,
expenses, fees, including, without limitation, attorneys' fees, breach of contract, acts, charges or
accountings of any nature whatsoever, whether known or unknown, fixed or contingent, which
any Stoneridge Party and/or The City has or may hereafter have against any of the same arising
out of or related to and prior, current or future condition on, about, under or otherwise affecting
the Property, the Access Areas (including the Adjacent Property) and/or any of the Stoneridge
Properties, including as intended to be addressed by The Repair (and any condition of the
Property and/or the Stoneridge Properties necessitating the same) or otherwise caused thereby
(collectively, the "Condition"). Each of the Stoneridge Parties and The City agrees and
represents that it may have claims against one or more of the Ladera Indemnitees of which it has
no knowledge at the time of the execution of this Agreement, but that this Agreement is
specifically intended to and does extend to any and all claims in any way based upon, connected
with, or related to the Condition and all actions taken in connection therewith, including the
negotiation of this Agreement, whether known or unknown, claimed or suspected as of the date
of the execution of the Agreement. As further consideration and inducement, each of the
Stoneridge Parties and The City hereby waive the provision of CElifomia Civil Code § 1542,
which provides as follows:
A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing
the release, which if known by him must have materially affected
the settlement with the debtor.
7. Release of The City. The Stoneridge Parties hereby release and forever discharge
The City, its council members, staff, employees and agents (collectively, "City Indemnitees") of
and from any and all actions, causes of action, claims, rights, demands, debts, liens, damages,
obligations, liabilities, costs, expenses, fees, including, without limitation, attorneys' fees, breach
of contract, acts, charges or accountings of any nature whatsoever, whether known or unknown,
fixed or contingent, which the Stoneridge Parties have or may hereafter have against any of the
same arising out of or related to the Condition. Each of the Stoneridge Parties agrees and
represents that it may have claims against one or more of the City Indemnitees of which it has no
knowledge at the time of the execution of this Agreement, but that this Agreement is specifically
intended to and does extend to any and all claims in any way based upon, connected with, or
related to the Condition and all actions taken in connection therewith, including the negotiation
of this Agreement, whether known or unknown, claimed or suspected as of the date of the
execution of the Agreement. As further consideration and inducement, each of the Stoneridge
Parties hereby waives the provision of California Civil Code §1542, which provides as follows:
A general release does not extend to claims which the creditor does not know or
suspect to exist in his favor at the time of executing the release, which if known
by him must have materially affected the settlement with the debtor.
8. Indemnity. Each Stoneridge Party shall indemnify and hold harmless Ladera, Ladera
Indemnitees, The City and any other City Indemnitees from and against any liability, loss,
damage, injury or claim of any kind or character to any person or property caused by or relating
to, with or without fault, and arising from any of the following (and the phrase "if and to the
extent it affects the Condition and/or the Property and/or the Access Areas , including the
Adjacent Property, or words to that effect shall mean if and to the extent it affects, arises out of
or relates to the Condition, the Property, the Access Areas, including the Adjacent Property, or
any improvement constructed thereon):
a. The failure to perform The Repair or otherwise correct the
Condition in accordance with the Plans and the requirements of applicable
law and regulations and the generally accepted standards of such
profession or similar services required thereby;
b. Any acts or omissions of any Stoneridge Party or any Stoneridge
Party's agents or representatives in the performance of The Repair or
associated work or services;
C. The breach by any Stoneridge Party of any of its obligations under
this Agreement, including any violation or alleged violation by of any
applicable law; and
d. Any damage, liability, fine, penalty, punitive damages, costs or
expenses arising from or out of the presence or existence of any hazardous
substances in, on or about the Property and/or the Access Areas, including
the Adjacent Property, or any surrounding land arising from The Repair,
the Condition and/or any Stoneridge Party's acts or omissions with respect
thereto, including any claim, action, suit or proceeding for personal injury
(including sickness, disease — death), tangible or intangible property
damage, compensation for lost wages, business income, profits or other
economic loss, damage to the natural resources or the environment,
nuisance, pollution, contamination, leak, spill, release or other adverse
effect upon the environment arising from the act or omission of any
Stoneridge Party in the performance of The Repair.
9. Insurance. SC shall satisfy the insurance requirements attached hereto as Exhibit i -I
("Insurance Requirements") and otherwise maintain such insurance in full force until the
completion of the Repair in accordance with the Plans and the transfer of the Property to the
individual Stoneridge Owners in accordance with this Agreement. SC shall submit a true and
complete copy of all such insurance policies, together with certificates of such insurance
confirming the foregoing, to Ladera prior to the transfer of the Property to SC (and as such
policies are renewed, replace and/or modified) and otherwise upon request; and such insurance
shall provide that it may not be canceled without thirty (30) days prior written notice to Ladera.
All commercial general liability insurance for completed operations shall be maintained for ten
(10) years following completion of The Repair. On any policy required by the Insurance
Requirements, SC shall have Ladera, RMV and The City named as additional insureds.
a. SC hereby waives all rights against Ladera for damages caused by
fire and other perils and any other risk to the extent covered by SC's
policies of insurance or required to be covered by SC's policies of
insurance which are required to be carred in accordance with this
Agreement.
b. Nothing contained in these insurance requirements is to be
construed as limiting the type, quality or quantity of insurance SC should
maintain or the extent of SC's responsibility for payment of damages
resulting from its operations.
C. If SC fails to obtain and deliver to Ladera evidence of the
insurance required to be maintained by SC under this Agreement or, once
acquired, should any policy expire or be canceled before the expiration of
this Agreement or such later period as SC is required to carry such
insurance as set forth herein and SC fails immediately to procure other
insurance as specified, Ladera shall have the right after 10 days' written
notice to SC, but no obligation, to procure such insurance or any portion
thereof and to charge SC one hundred ten percent (110%) of the cost to
Ladera of procuring such insurance and such amount shall be due and
payable to Ladera within the earlier of ten (10) days of a request therefor
by Ladera.
d. SC shall not permit any subcontractor, materialmen or any other
person or party retained by SC to commence or continue work on or
relating to the Property, including the Repair and/or any component
thereof, until such parties have complied with the Insurance Requirements.
SC shall also include Ladera. in any indemnity provisions with such parties
for defense and indemnification to the same extent SC is defended and
indemnified.
10. Performance of Repair & Lien Protection.
a. SC shall (i) furnish all labor, materials, tools, equipment, supplies
and all necessary transportation of the foregoing, together with competent
supervision, insurance, permits, licenses, certificates and all other items
which are necessary or required for the performance and completion of
The Repair in accordance with the Plans and (ii) promptly pay all charges
for materials, labor or other items incurred by SC in connection with or
arising out of The Repair except to the extent that such charges are
disputed by SC.
b. SC shall, at its sole cost and expense, cause the removal of all
exceptions to title on the Access Areas, including the Adjacent Property,
and otherwise pay and discharge all mechanics', materialmen's,
contractors' or subcontractors' or other liens or claims, or possible liens or
claims or similar exceptions arising from The Repair which affect the
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Access Areas, including the Adjacent Property, or Ladera and/or the acts
and/or omissions of SC. In the event any lien has been recorded or filed
upon Ladera, the Access Areas, including the Adjacent Property, and/or
the by any contractor, subcontractor, materialmen or other person retained
by SC and/or any contractor retained by SC with respect to The Repair,
SC and each Stoneridge Owner shall completely protect Ladera from any
and all loss, damage or expense therefrom until such claim or lien has
been adjusted by SC to the reasonable satisfaction of Ladera.
C. Upon request by Ladera, SC shall provide to Ladera copies of all
receipted invoices or vouchers and any other documentation that Ladera
deems necessary to establish that SC has made full payment of the labor,
materials, equipment and other costs for which SC has applied for
payment.
d. SC shall comply, and shall otherwise perform and complete The
Repair in accordance, with all applicable laws and the Plans. SC shall be
responsible for initiating, maintaining, and supervising all safety
precautions and programs in connection with The Repair and other
activities of SC on the Property and all other surrounding property. SC
shall give Ladera immediate written notice of any violation, potential
violation or non-compliance of The Repair and/or the Property with any
applicable laws.
e. SC shall, at its sole cost and expense, repair and restore any
damage or destruction done to the Access Areas, including the Adjacent
Property, by SC or any contractor, subcontractor, materialmen or other
persons retained by SC with respect thereto, including, without limitation,
any damage, destruction or casualty to any improvements, fixtures and/or
installations, soil, plants, crops, fences, timber, habitat, livestock and/or
any other natural resources on or about the Access Areas, including the
Adjacent Property, arising in the performance of The Repair or any other
act or omission by SC hereunder.
Upon any default of SC hereunder, including the failure by SC to
complete The Repair in accordance with the Plans,
(i) The City shall have the right, after 10 days' written notice to
SC and SC's failure to commence performance within that time period, to
complete all or any portion of The Repair or otherwise perform any other
obligation of SC under this Agreement, as SC's attomey-in-fact, under
such arrangements with third parties as the City shall determine
appropriate. In taking any such action, The City shall charge the cost and
expense of completing The Repair, including any compensation paid or
allocated by The City for managerial, administrative or supervisorial
services (collectively, "Repair Costs"), to SC; and such cost and expense
shall be immediately due and payable by SC and each Stoneridge Owner
in an amount equal to each Stoneridge Owner's proportionate interest in
SC to The City; and SC and each Stoneridge Owner shall immediately
fiilly reimburse The City for the Repair Costs. If SC and each Stoneridge
Owner should fail to promptly reimburse The City for the Repair Costs,
The City shall have the option to forfeit any bonds tendered by SC in
connection with the performance of The Repair and apply the proceeds
from such bonds ("Bond Proceeds") to fully reimburse The City for the
Repair Costs; SC and each Stoneridge Owner shall be responsible for and
shall promptly pay The City any amount of deficiency if the Repair Costs
exceed the Bond Proceeds; and
(ii) if The City should elect not to complete all or any portion of
The Repair or otherwise fail to complete the same or otherwise complete
any other obligation of SC under this Agreement, then Ladera shall have
the right, but without any obligation, to complete all or any portion of The
Repair or otherwise perform any other obligation of SC and/or The City
under this Agreement, as SC's attomey-in-fact, under such arrangements
with third parties as Ladera, in its sole reasonable discretion, shall
determine appropriate. In taking any such action, Ladera shall charge the
Repair Costs to SC; and such cost and expense shall be immediately due
and payable by SC and each Stoneridge Owner in an amount equal to each
Stoneridge Owner's proportionate interest in SC to Ladera; and SC and
each Stoneridge Owner shall immediately pay such amount to Ladera.
g. Without limiting the generality of the foregoing, Ladera shall not
be liable to any contractor, subcontractor, supplier, laborer, architect,
engineer or any other party for services performed or materials supplied or
for any causes of action arising out of or in connection with SC's
performance of The Repair. Ladera shwa .ot be 1: ble for any debts or
claims accruing in favor of any such parties against SC and/or any
Stoneridge Owner. SC is not and shall not be an agent of Ladera for any
purposes. Ladera shall not be deemed to be in privity of contract with any
contractor or provider of services to SC, nor shall any payment of funds
directly to a contractor, subcontractor or provider of services be deemed to
create any third party beneficiary status or recognition of same by Ladera.
h. Any approvals granted or elections taken by Ladera for any matters
covered under this Agreement shall be construed to be solely for the
benefit of Ladera. Further, any reviews, observations, inspections and
testing relating to The Repair by Ladera or its consultants shall be solely
for the benefit of Ladera and shall not be deemed to create any third party
beneficiary status for any other third party.
11. Negative Covenants. SC covenants and agrees that, so long as title of the Property or
any portion thereof remains with SC prior to the Transfer, SC shall not create, incur, assume, or
permit to exist, directly or indirectly, any lien of any kind on or with respect to the Property or
any portion thereof, without the prior written consent of Ladera.
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12. Consent to Ladera. Neither SC nor any Stoneridge Owner (i) shall oppose the
development of the land owned by Ladera ("Ladera Ranch") in accordance with the Ladera
Development Agreement recorded January 17, 1997 in the Official Records of Orange County,
California as Instrument No. 19970027386, together with Resolution No. 96-860 of the Board of
Supervisors of Orange County, California, December 3, 1996, Making CEQA Findings &
Approving Ladera Develop. Agreement D96-01; & Approve Ladera Sports Park Operating
Amendment., including as the same may be modified or amended from time to time with the
consent and/or approval of Orange County (collectively, the "Ladera Development
Approvals") and (ii) shall file any written or oral protest or opposition of any kind to the
development of Ladera Ranch in accordance with the Ladera Development Approvals; and SC
and each Stoneridge Owner shall (a) consent to, or if an election is called, cast its vote in favor of
the development of Ladera Ranch in accordance with the Ladera Development Approvals and
(b) shall execute such proxies, waivers, ballots, certificates and other documents and agreements
requested by Ladera in connection therewith or arising therefrom. Neither SC nor any
Stoneridge Owner shall take any action which would in any way interfere with the development
of Ladera Ranch in accordance with the Ladera Development Approvals.
13. General Provisions.
13.1 Counterparts. This Agreement may be executed in counterparts, each of
which, taken together, shall constitute one and the same instrument.
13.2 Entire Agreement. This Agreement contains the entire agreement between
the parties respecting the subject matter of the Agreement, and supersedes all prior
understandings and agreements, whether oral or in writing, between the parties, respecting the
subject matter of this Agreement.
13.3 Legal Advice; Neutral Interpretation; Headings. Each party to this
Agreement has received independent legal advice from its attorneys with respect to the
advisability of executing this Agreement and the meaning of the provisions hereof, or has had the
opportunity to obtain such advice and has determined to proceed without it. The provisions of
this Agreement shall be construed as to their fair meaning, and not for or against any party based
upon any attribution to such party as the source of the language in question. Headings used in
this Agreement are for the convenience of reference only and shall not be used in construing this
Agreement.
13.4 Choice of Law. This Agreement shall be governed by the laws of the
State of California and venue for any action or arbitration shall take place in the County of
Orange.
13.5 Severability. If any term, covenant, condition or provision of this
Agreement, or the application thereof to any person or circumstance, shall to any extent be held
by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the
terms, covenants, conditions or provisions of this Agreement, or the application thereof to any
person or circumstance, shall remain in full force and effect and shall in no way be affected,
impaired or invalidated thereby.
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13.6 Waiver. The waiver by one party of the performance of any covenant or
condition under this Agreement shall not invalidate this Agreement nor shall it be considered a
waiver by it of any other covenant or condition under this Agreement. The waiver by any party
and/or all parties of the time for performing any act under this Agreement shall not constitute a
waiver of the terms for performing any other act or an identical act required to be performed at a
later time.
13.7 Exhibits. All exhibits to which reference is made in this Agreement are
deemed incorporated in this Agreement, whether or not actually attached.
13.8 Amendment. This Agreement may be amended at any time only by the
written agreement of the parties. All amendments, changes, revisions and discharges of this
Agreement, in whole or in part, and from time to time, shall be binding upon the parties despite
any lack of legal consideration, so long as the same shall be in writing and executed by all
parties.
13.9 No Third Party Benefit. Except for the Stoneridge Owners, Ladera
Indemnitees and City Indemnitees as otherwise set forth herein, this Agreement is intended to
benefit only the parties hereto, and no other person or entity has or shall acquire any rights
hereunder.
13.10 Time of the Essence. Time shall be of the essence as to all dates and times
of performance.
13.11 Further Acts. Each party hereby agrees that it shall, upon request of the
other, execute and deliver such further documents (in form and substance reasonably acceptable
to the party to be charged) and to do such other acts and things as are reasonably necessary and
appropriate to effectuate the terms and conditions of this Agreement, without cost.
13.12 Successors and Assigns. This Agreemer t shall be binding upon,
enforceable by, and shall inure to the benefit of the successors and assigns of the parties.
13.13 Manner of GivingNotice. All notices and demands which each party is
required or desires to give to the other shall be given in writing by United States mail, first class
postage prepaid; by personal delivery; or express courier service to the address set forth below
for the respective party, provided that if any party gives notice of a change of name or address,
notices to that party shall thereafter be given as demanded in that notice. All notices and
demands given by mail shall be effective on the third day after mailing; all notices and demands
otherwise given as provided above shall be effective upon receipt by the party to whom notice or
demand is being given.
To Ladera:
DMB Ladera, LLC
28811 Ortega Highway
San Juan Capistrano, CA 92675
Attn: Tom Staley
With copy to:
Drew Jones, Esq.
Brobeck, Phleger & Harrison LLP
38 Technology Drive
Irvine, CA 92618
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To The City:
Mr. George Scarborough
City Manager
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
To SC and the Stoneridge Owners:
SC Slide, Inc.
c/o Mr. John Heinaman
27391 Silver Creek Dr.
San Juan Capistrano, CA 92675
With copy to:
John Shaw, Esq.
City Attorney
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
With copy to:
Richard Spence Wordes, Esq.
Wordes, Wilshin, Goren & Conner, LLP
31 Journey Street, Suite 120
Aliso Viejo, CA 92656-3334
13.14 Full Performance Required. Performance of any duty imposed on any
party by this Agreement is conditioned on the other party's full performance of all duties
imposed on it in this Agreement.
13.15 Authority. Each individual executing this Agreement on behalf of one or
more of the parties hereto represents and warrants that he or she has full and complete authority
to bind such party to this Agreement and the provisions hereof.
13.16 Consents. Except as specifically stated otherwise in this Agreement, any
consents required by this Agreement shall not be unreasonably withheld or delayed by the party
required to give such consent.
13.17 Non -Exclusive Remedies. Each party shall have available to it any and all
remedies available at law or in equity, and the specific inclusion of any remedy shall be in
addition to, and not in limitation of, any other remedy.
13.18 Arbitration. In the event of any dispute regarding this Agreement, the
dispute shall be submitted to binding arbitration before and under the rules of JAMS/Endispute,
Inc. or its successor entity. Such arbitration shall take place in the County of Orange. The
decision of such arbitrator shall be final and binding upon the parties and may be entered as a
judgment or order of court in the Superior Court of the County of Orange.
13.19 Litigation Costs. If any legal action, arbitration or other proceeding is
brought for the enforcement or interpretation of this Agreement, or because of an alleged dispute,
breach, default, or misrepresentation in connection with any of the provisions of this Agreement,
the successful or prevailing party or parties shall be entitled to recover reasonable attorneys' fees
and other costs incurred in that action or proceeding, in addition to any other relief to which it or
they may be entitled.
12
r
13.20 Waiver of Jury Trial. Each party hereby acknowledges that it has had the
advice of counsel of its choice with respect to rights to trial by jury under the constitutions of the
United States and the State of California. Each party expressly and knowingly waives and
releases all such rights to trial by jury in any action, proceeding or counterclaim brought by
either party against the other on any matters arising out of or in any way connected with this
Agreement and/or any claim for injury or damage with respect thereto and/or or the Property
and/or the Access Areas.
[signature page to follow]
13
H-U1-UU1'IA90 VRUM. HAN1HU M I s b ! U N ,!1 j1 !U Mail J . 1/ 11
0
E
IN WITNESS WHEREOF, the paltics lhercto have r ,reined this Agreement as of
the date first written above.
"LADERA'.
DMR LADERA, LI.C', a
Delaware limited liability company
13y, RANCHO MISSION VIEJO, LLC, a
Delawar_ limited liability company,
its agent and manager
Donald L. Vodra
Chief Operating Officer
By:
Tom titaloy _.
Vice President
"'I'I I I{ CITY"
I l II. CITY OF, SAN It IAN CAPISTRANO,
:i Municipal CmT)4 a1jon
13y:
hs:
SC SIJDR, INC., a California non-profit
1111141,] henetil CoToralion
13y
14
John I fulWl min, President
M
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
14
"LADERA"
DMB LADERA, LLC, a
Delaware limited liability company
By: RANCHO MISSION VIEJO, LLC, a
Delaware limited liability company,
its agent and manager
By:
Donald L. Vodra
Chief Operating Officer
Lz
Tom Staley
Vice President
"THE CITY"
THE CITY OF SAN JUAN CAPISTRANO,
a Municinal corooratione
By:
Its:
"SC"
SC SLIDE, INC., a California non-profit
mutual benefit corporation
0
o ei , President
Charles Cawthorne
0
J
GregorXfryhg
Ja ockema
"STONERIDGE OWNERS"
Elizab h Cawthome
Angela Heinaman
--_Jw Lt
Linda Fryl' g
15
Linda Petersen �P•
a
Hockema
Exhibit A
Description of the Stoneridge Properties
Gregory & Linda Fryling
29802 Highview Circle
San Juan Capistrano, CA 92675
Lot #47
James and Nancy Scanlon
27351 Silver Creek Dr.
San Juan Capistrano, CA 92675
Lot #50
Charles and Elizabeth Cawthome
27371 Silver Creek Dr.
San Juan Capistrano, CA 92675
Lot #51
Choon and Kazue Tanaka
27381 Silver Creek Dr.
San Juan Capistrano, CA 9.2675
Lot #52
John and Angela Heinaman
27391 Silver Creek Dr.
San Juan Capistrano, CA 92675
Lot #53
John and Linda Petersen
27401 Silver Creek Dr.
San Juan Capistrano, CA 92675
Lot #54
Jack and Kay Hockema
San Juan Capistrano, CA 92675
Lot #
Exhibit B
Description of the Property
LEGAL DESCRIPTION
EASEMENT FOR SLOPE REPAIR PURPOSES
A portion of Rancho Mission Viejo in the County of Orange, State of California as shown on a
Record of Survey filed in Book 9, Pages 15 through 25, inclusive, of Record of Surveys, in the office
of the County Recorder of said County, described as follows:
Beginning at a point in the Northeasterly boundary of Tract No. 6381 as shown on a map filed in
Book 433, Pages 5 through 15, inclusive, of Miscellaneous Maps, in the office of said County
Recorder, South 52°57'27" East 60.50 feet along said boundary, from the most Northerly comer of
Lot 47 of said Tract; thence North 37°02'33" East 43.00 feet; thence North 44°01'45" East 102.76
feet; thence North 56°21'04" East 145.17 feet; thence South 71°38'04" East 149.89 feet; thence South
33°40'38" East 181.71 feet; thence South 43°17'03" East 267.81 feet; thence South 52028'19" East
236.01 feet; thence South 33042'02" West 137.23 feet; thence South 86°03'43" West 131.14 feet to
said boundary; thence, along said boundary, North 52°57'27" West 783.02 feet to the True Point of
Beginning.
As more particularly shown on Exhibit "B" attached hereto and by this reference made a part
hereof.
o)4 X
Rory S. Wibr*a' ms, L.S. No. 6654
License Expires: December 31, 1999
SND
Rory S. Williams
Exp. 12/31/99 I
�TNo. 6654
\OF Dp��rO�a\P
September 9, 1999
Page I of 1
W.O. 2426 -IT
H&A Legal No. 4506
Prepared by: V. Edge
Checked by: R. Williams/t1
1111EXHIBIT "B°
Sketch to Accompany Legal Description
552°57'27"E
%60.50'
N37°02'33"E
43.00'
45 E 145 Ji f . .
N �/�.
o H
m
3.
O
n
N
% Oi�'
.. .. �// Vim.. '.� �:.
r 533°42'02"w
137.23' \_
�HUNSAKER & ASSOCIATES EASEMENT FOR
' " v I N E ` SLOPE REPAIR PURPOSES
PUNNING • ENGINEERING • SURVEYING
Tree Hu6hn •Irvin, U 9261e •Pre (949) Serww F%19w1 SEYo15g UNINCORPORATED TERRITORY OF THE COUNTY OF ORANGE, STATE OF CALIFORNIA
UAR, 9-9-99 1 ." , - - - B, V. Edge B'' R. Williams SCALE: 1"= 150' W.O. 2426-1T
rI`E' I:\ST0NERIDGE\LD\4806\SHT01 .DWG „°G ACAD-MC H&A LEGAL No. 48061 SHEET 1 OF 1
Page 2 of 2
Exhibit C
Description of the Stockpile Are:,. ,
LEGAL DESCRIPTION
EASEMENT FOR DIRT STOCK PILE PURPOSES
A portion of Rancho Mission Viejo in the County of Orange, State of California as shown on a
Record of Survey filed in Book 9, Pages 15 through 25, inclusive, of Record of Surveys, in the office
of the County Recorder of said County, described as follows:
Commencing at a point in the Northeasterly boundary of Tract No. 6381 as shown on a map filed in
Book 433, Pages 5 through 15, inclusive, of Miscellaneous Maps, in the office of said County
Recorder, South 52057'27" East 60.50 feet along said boundary, from the most Northerly corner of
Lot 47 of said Tract; thence North 37°02'33" East 43.00 feet; thence North 44°01'45" East 102.76
feet; thence North 56021'04" East 145.17 feet; thence South 71°38'04" East 149.89 feet to the True
Point of Beginning; thence South 33°40'38" East 181.71 feet; thence South 43°17'03" East 267.81
feet; thence South 52°28'19" East 236.01 feet; thence North 88°55'59" East 115.04 feet; thence South
80°49'29" East 98.41 feet; thence North 27°38'06" East 171.30 feet; thence North 53°46'55" West
278.03 feet; thence North 49002'06" West 175.41 feet; thence North 55°30'09" West 225.22 feet;
thence South 45°54'01" West 155.86 feet; thence North 63°53'35" West 121.24 feet to the True Point
of Beginning
As more particularly shown on Exhibit "B" attached hereto and by this reference made a part
hereof.
.nU Si._
Rory S. Wdliams, L.S. No. 6654
License Expires: December 31. 1999
Rory S. Williams
Exp. 12/31/99
J� No. 6654 \P
\OF CAL�FO��
Page 1 of 2
September 9, 1999
Page 1 of 1
W.0.2426 -1T
H&A Lc_al No. 4507
Prenarcd bv: V. Edi -,e
R EXHIBIT "B"
Sketch to Accompany Legal Description
S52057'27"E
60.50'
N37°02'33"E
43.00'
2"0
01'45"E 1qs 17 4'F
®HUNSAKER & ASSOCIATES TEMPORARY EASEMENT
•
IRV I N E ` FOR DIRT STOCK PILE PURPOSES
PUNNING ENGINEERING SURVEYING
Tlvae Nucha In4q U 926le PH: Iw91 9ai9mo EY (991 Se3 0759 UNINCORPORATED TERRITORY OF THE COUNTY OF ORANGE, STATE OF CALIFORNIA
°^M 9-9-99 o a - - - e;° V. Edge Z4 R. N411iams SCALE: 1"= 150W.O. 2426-1T
"L° I:\STONERIDGE\LD\4807\SHT01.DW G ;°` ACAD-MC H&A LEGAL No. 48071 SHEET 1 OF 1
Exhibit C Page 2 of 2
Exhibit H
Insurance Requirements
1. Certificate Holder: The "named insured", for "All operations", must state
(with an address as set forth in this Agreement therefore):
DMB Ladera, LLC, a Delaware limited liability company
Rancho Mission Viejo, LLC, a Delaware limited liability company
City of San Juan Capistrano, a municipal corporation
2. The following types and amounts of insurance shall be maintained by SC
and all subcontracts and persons responsible thereto under this Agreement:
a. Comprehensive general liability insurance coverage in the amounts
and with the deductible set forth below and with the following coverage:
h..;..—ities.
(1) Amounts:
Per Occurrence:
$1,000,000.00
Personal & Advertising Injury:
$1,000,000.00
Products & Completed Operations:
$2,000,000.00
General Aggregate/Umbrella:
$2,000,000.00
(2) Deductible:
$25,000.00
(3) Waiver of subrogation for the benefit of Ladera and all
(4) Policy to include liability arising out of subcontractors.
(5) Deletion of any limitations or exclusions relating to and/or
arising out of: (i) liability arising out of explosion, collapse or underground hazards, (ii) bodily
injury or property damage arising out of subsidence or soil or earth movement or (iii) type or use
of structure or building.
(6) Insurer to have duty to defend all insureds and defense
costs are paid in addition to and do not deplete any of insurance limits.
b. Automobile liability insurance for all motor vehicles operated by
SC, including owned, hired and non -owned automobiles, with minimum combined single limit
for bodily injury and property damage of $1,000,000.00 per occurrence.
C. Workers compensation insurance to cover statutory limits of
workers compensation laws of the state in which the Services is being performed and the state in
which the employee is hired. Workers compensation coverage shall extend to any individual,
including owners, directors, officers and employees, who will be performing work hereunder
23
regardless of any ability under state law to reject workers compensation coverage. This coverage
shall include a waiver of subrogation which satisfies the requirements above with respect to any
such waiver; and, if any class of employees engaged in the Services is not protected by such
workers compensation statute, then SC shall provide special insurance for the protection of such
employees not otherwise protected and which is similar to the coverage required above.
d. Employer's liability coverage in an amount not less than
$1,000,000.00/accident, $1,000,000.00 disease policy limit; and $1,000,000.00 disease each
employee.
3. The following requirements apply to all insurance policies required
hereunder;
a. All liability policies shall be on an occurrence basis; provided,
such coverage may be provided by a "blanket/multi-location" policy so long as such policy
provides a separate aggregate limit per occurrence in the amounts required hereunder for the
benefit of the Indemnities.
b. All policies required hereunder shall (i) name the required parties
hereunder as "additional insured" utilizing an ISO endorsement in a form approved by Ladera,
(ii) provide than any proceeds shall be paid to Ladera, (iii) be issued by an insurer and otherwise
in a form approved by Ladera and (iv) provide that such policies shall not be cancelled or non -
renewed, nor shall any material change be made to the same, without at least thirty (30) days
prior written notice to Ladera.
C. All insurers shall be rated A -VII or better by Best's.
24