1996-1218_ESTATES AT SAN JUAN CAPISTRANO HOA_AgreementRECORDING REQUESTED BY: Recorded in the County of Orange, California
CITY OF SAN JUAN CAPISTRANO Gary L. Granville Clerk/Recorder
12, 00
006 ,55355,5 119980362119 10;29am 06/10/98
WHEN RECORDED MAIL TO:
City Clerk q 1 p 23 6.00 66.00 0 . 00 0 . 00 0 . 55 5 pp
City of San .Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Space above this line for Recorder's use only
AGREEMENT ESTABLISHING SLOPE
DISPLACEMENT WARRANTY PROGRAM
This Agreement Establishing Slope Displacement Warranty Program
("Agreement") is entered into as of December 18, 1996, by and among
ESTATES AT SAN JUAN CAPISTRANO,L.P., a California limited partnership
("Developer"), ESTATES AT SAN JUAN CAPISTRANO HOMEOWNERS ASSOCIATION
("Association") and the CITY OF SAN JUAN CAPISTRANO ("City"), and
pertains to that certain real property more particularly described on
Exhibit "A" attached hereto and incorporated herein by this reference
("Property").
B E C I I B L a
This Agreement is made with reference to the following facts:
A. Developer is in the process of developing the Property as
a residential project including open space lots ("Project"), in the
City of San Juan Capistrano.
B. On September 15, 1987, the City Council ("Council") of the
City passed, approved and adopted Ordinance No. 605 ("Basic
Ordinance"), requiring that certain residential developments in the
City include a slope displacement warranty program.
C. On June 18, 1991 the Council passed, approved and adopted
Resolution No. 91-6-18-4 ("Original Resolution"), approving vesting
Tentative Tract Map No. 13726 and certain other matters. Developer has
been required by the City to implement a Soils Warranty Program
("Slope Displacement Warranty Program") with respect to Tract No.
13726.
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D. The Association is a California non-profit mutual benefit
corporation which will own the common area lots within the Project
and will serve as the homeowners' association for Tract No. 13726.
E. By this Agreement, Developer satisfies in full (i) all
conditions of subdivision approval relating to the Slope Displacement
Warranty Program, (ii) all requirements of the Basic 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
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.
..-
1.1 Slope Displacement Warranty Program and Term.
Developer's subdivision approvals for Tract 13726 require that
Developer's Project include a "Slope Displacement Warranty
Program". This Agreement sets forth the above referenced Slope
Displacement Warranty Program. The term or period of the Slope
Displacement Warranty Program shall be for a period of ten (10)
years after the date of the final grading approval for Tract
13726 ("Slope Displacement Warranty Period").
1.2 Developer Liability Period. During Developer's
Liability Period only, Developer shall make or cause to be made,
at Developer's expense, all Covered Repairs necessitated by
Slope Displacements of the nature referred to herein as
Catastrophic Slope Displacements and/or Surficial Slope
Displacements.
1.3 Liability for Certain Catastronhic Slope
12isplacements. If a Catastrophic Slope Displacement occurs
during the portion of the Slope Displacement Warranty Period
following expiration of the Developer's Liability Period, the
Association shall make or cause to be made the Covered Repairs
necessitated by such Catastrophic Slope Displacement. In the
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event the GRAD elects to make or cause such Covered Repairs to
be made, the GRAD and not the Association shall make or cause
such Covered Repairs to be made, and the GHAD shall bear the
entire cost of the Covered Repairs necessitated by such
Catastrophic Slope Displacement. The cost of Covered Repairs
paid by either the Association or the GHAD shall be subject to
the right to assert claims against responsible persons or
entities as and to the extent provided for in Section 1.5
hereof.
1.4 Liability for Certain S=fir.ial S1ni)e nioulacements.
If a Surficial Slope Displacement occurs at any time after the
expiration of the Developer Liability Period, the Association
shall make or cause to be made, all Covered Repairs necessitated
by such Surficial Slope Displacement, at the Association's
expense subject to the right to assert claims against
responsible persons or entities as and to the extent provided
for in Section 1.5 hereof.
1.5 Reserved Rights. Developer, the GHAD as such term is
defined in Section 1.6 below 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 wilful
misconduct of the person or entity against whom the claim is
asserted, for displacement of soil on the slopes, whether
covered by the Slope Displacement 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.
1.6 GHAD Formation. As a requirement of the City, as soon
as practicably possible after full execution and delivery of
this Agreement, Developer shall use reasonable and diligent
efforts to cause a Geologic Hazard Assessment District (FIGHAD")
to be created as authorized under Section 26500, et seq. of the
California Public Resources Code. The GHAD boundary shall
encompass the boundaries of the Property and the GHAD shall be
activated upon occurrence of a Catastrophic Slope Displacement.
The City shall cooperate to the fullest extent reasonably and
legally possible in order to expedite prompt formation of the
GRAD at the time herein contemplated and also to expedite its
prompt activation upon the occurrence of a Catastrophic Slope
Displacement. Further, if permitted by the California
Department of Real Estate ("DRE"), all final subdivision public
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reports for the Project as issued by the DRE shall contain a
disclosure as to the nature and existence of the GRAD. The form
of grant deed used in conveying residential lots within the
Project to third parties shall contain a statement disclosing
the formation and existence of the GRAD. It is understood and
agreed that Declarant makes no warranty or representation as to
the efficacy of the GRAD or its use for the purposes for which
it is intended as expressed in this Agreement.
During the Developers Liability Period, the Slope
Displacement Warranty Program shall be administered by the Developer
and thereafter said program shall be administered by the Association.
In the event any party receives notice of a claim that a Slope
Displacement has occurred, such party shall give all other parties
(and the GRAD if it has requested such notice and provided its
address to the parties to this Agreement) 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 person or entity then administering the Slope
Displacement Warranty Program 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 slope displacement 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 then administrator of the Slope Displacement Warranty Program
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 time 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
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commence an arbitration proceeding for the purpose of selecting a
Claims Adjuster. If the parties to the Agreement cannot or do not
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 slope displacement 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 slope displacement 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 Slope Displacement has occurred that is within
the coverage of the Slope Displacement Warranty Program. After
reasonably appropriate investigation and analysis, the approved
Claims Adjuster shall determine, among other things: (a) whether the
claim is covered by the Slope Displacement Warranty 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 person or entity having the ultimate financial
responsibility for the Covered Repairs under this Agreement shall
also bear the cost of the Claims Adjuster and all investigation costs
reasonably incurred by the Claims Adjuster. The Claims Adjuster
shall complete his/its analysis as soon as reasonably possible and
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shall thereupon issue a written report to all of the parties to this
Agreement (and to the GHAD if it has requested such notice and
provided its address to the parties hereto), 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.
- •.
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 3 above shall specify the alleged failure in detail.
4.1 Cash or Bond. Developer will, as soon as practically
possible following full execution and delivery of this
Agreement, provide the Association with the sum of One Hundred
Ten Thousand Six Hundred Forty Two Dollars ($110,642)
("Developer's Security Amount") or a bond ("Developer's Security
Bond") or other collateral reasonably satisfactory to the City
in like amount assuring Developer's performance of its
obligation to make certain Covered Repairs under certain
circumstances as provided in this Agreement. Such cash, bond or
other reasonably satisfactory collateral held by the City shall
be referred to herein as "Developer's Security" and/or
"Developer's Security Fund". The Association shall promptly
upon request, confirm its receipt of the Developer's Security
and from time to time, upon request, provide the City and
Developer with the then current status of the Developer's
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Security. If Developer posts the Developer's Security Bond,
Developer agrees to report to the Association and the City on
each renewal of the Developer's Security Bond or on issuance of
a new Developer's Security Bond. If Developer posts any cash as
security, the Association shall place such cash in an interest
bearing account ("Developer's Security Fund Account") that is
insured by the Federal Deposit Insurance Corporation or other
agency reasonably satisfactory to Developer and all interest
accruing with respect to such cash shall inure to the benefit of
Developer and may be drawn by Developer periodically (but not
more frequently than semi-annually).
4.2 Form of Bond. If Developer elects to post the Bond,
the surety and the form of the Bond will be subject to the
approval of the City, which approval will not be unreasonably
withheld.
4.3 Substitute Security. Developer may provide a
substitute form of security legally acceptable to the City, the
approval of which will not be unreasonably withheld by the City.
To the full extent that the Association has received approved
substitute security from Developer, the Association shall
promptly release the security for which substitution has been
made.
4.4 Insurance. At any time, Developer may, at its sole
option, satisfy its security requirement set forth in this
Section 4 by providing the Association and the City with
evidence of insurance against Slope Displacement for which
Developer is financially responsible, provided any such
insurance shall be subject to the approval of the City or its
authorized representatives, which approval shall not be
unreasonably withheld, delayed or conditioned; and provided
further that Developer agrees to promptly re-establish
Developer's Security Fund to its proper level should such
insurance expire or sooner terminate or otherwise become non-
qualifying.
M • R - ..- -
4.5.1 From time to time during the Developer's
Liability Period, upon Developer's written request
accompanied by reasonable substantiating evidence, the
Association shall release, exonerate and/or return the
Developer's Security to Developer, as appropriate, to pay
for or reimburse Developer for costs incurred or to be
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incurred to implement Covered Repairs for which Developer
is financially responsible under this Agreement.
Notwithstanding the foregoing provisions of this
Section 4.5.1, during the Developer's Liability Period, the
Developer's Security remaining in the hands of the
Association, when added to the current balance of the
Association's Restricted Assessment Account (the sum of
said addition being referred to herein as the "Sum") shall
not be reduced below seventy-five percent (75%) of the
Developer's Security Amount, and if during such period,
said Sum falls below seventy-five percent (75%) of the
Developer's Security Amount, then upon receipt of a written
request from the City, Developer shall promptly post with
the Association sufficient additional Developer's Security
to restore such shortfall and bring the Sum up to seventy-
five percent (750) of the Developer's Security Amount.
4.5.2 If at the time of the expiration of the
Developer's Liability Period, the Sum (as such term is
defined in Section 4.5.1 above) is less than seventy-five
percent (751.) of the Developer's Security Amount, then upon
receipt of a written request from the City, Developer shall
post with the Association sufficient additional Developer's
Security to restore such shortfall and bring the Sum up to
seventy-five percent (75%) of the Developer's Security
Amount. If, on the other hand, at the time of the
expiration of the Developer's Liability Period, the Sum (as
such term is defined in Section 4.5.1 above) is greater
than seventy-five percent (75%) of the Developer's Security
Amount, then upon written request from Developer, the
Association shall promptly release, exonerate and/or return
to Developer a sufficient amount of Developer's Security
to eliminate such excess and bring the Sum equal to
seventy-five percent (75%) of the Developer's Security
Amount.
Nothing to the contrary in this Agreement withstand-
ing, following the expiration of the Developer's Liability
Period, the Association shall promptly release, exonerate
and/or return to Developer all of the Developer's Security
still held by the Association, as and when the amount that
was in the Association's Restricted Assessment Account as
of the expiration of the Developer's Liability Period, -plus
the aggregate amount of all assessments levied and
collected by the Association for the Association's
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n
Restricted Assessment Fund following expiration of the
Developer Liability Period equals one hundred percent
(100`--) or more of the Developer's Security Amount.
-. - "-r I.
5.1 Association to Levy and Collect Monthly Assessments
Each month, commencing as hereinafter provided, the Association
shall levy and collect homeowner assessments with respect to
each residential lot in Tract 13726 (then subject to assessment]
on a Fourteen and 64/100 Dollar ($14.64) per residential lot
basis, commencing with all such residential lots [then subject
to assessment], upon the close of escrow and conveyance of the
first residential lot within the Project to be sold and conveyed
to a member of the public under the auspices of a final
subdivision public report issued by the DRE for any portion of
the Project (the "Association's Restricted Assessment Fund").
The Association's Restricted Assessment Fund, consisting of
assessment payments and interest thereon, is intended to grow to
a total of One Hundred Ten Thousand Six Hundred Forty Two
Dollars ($110,642) by the end of the Slope Displacement Warranty
Period or earlier. The Association's Restricted Assessment 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 or the Association 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 Restricted
Assessment Fund and interest thereon shall be deposited and
retained in a restricted reserve account ("Association's
Restricted Assessment 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 initial final
subdivision public report covering any residential lots within
the Project. Monies in the Association's Restricted Assessment
Account shall only be withdrawn and used for the purposes
contemplated in this Section 5.1 above.
5.2 Cessation of Assessments find rtain Circumstances.
Except as otherwise provided in this Agreement, the Association
may cease levying and collecting assessments as contemplated in
Section 5.1 above when the total balance of the Association's
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Restricted Assessment Account reaches One Hundred Ten Thousand
Six Hundred Forty Two Dollars ($110,642).
5.3 Replenishment of t -hp Association'str; ed
Assessment Account. In the event the Association's Restricted
Assessment Account is depleted by the cost of making Covered
Repairs, as contemplated by this Agreement, the Association
will, by regular or special assessments, restore the total
amount in the Association's Restricted Assessment Account to One
Hundred Ten Thousand Six Hundred Forty Two Dollars ($110,642)
within a reasonable period of time.
5.4 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
Restricted Assessment Fund and the Association's Restricted
Assessment Account as herein provided, and for levying and using
best efforts to collect assessments to fund the Association's
Restricted Assessment Fund as herein provided.
5.5 Anoroval Reauired for_Chanses--in Assessments Levied
by the Association Pursuant o section S. Changes in the amount
of, or cessation of, the assessments to be levied by the
Association, pursuant to the provisions of this Section 5 shall
require the approval of the City and the Developer, which
approvals shall not be unreasonably withheld. The City may
enforce the provisions of this Section 5.
5.6 Insurance. At any time, Association may, at its sole
option, satisfy the Association's Restricted Assessment Fund
requirements set forth in this Section 5 by providing the City
with evidence of insurance against Slope Displacement for which
it is financially responsible; provided any such insurance shall
be subject to the approval of the City or its authorized
representatives, which approval shall not be unreasonably
withheld, delayed or conditioned; and provided further that the
Association agrees to promptly reestablish the Association's
Restricted Assessment Fund to its proper level should such
insurance expire or sooner terminate or otherwise become non-
qualifying.
6.1 Additional L;mi a 'on on Slope Displacement Warranty
Program. Nothing to the contrary in this Agreement
withstanding, it is agreed that:
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6.1.1 The Slope Displacement Warranty Program
provided herein expressly excludes slope displacement 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 Slope Displacement or not.
6.1.2 In no event will performance of repair work
by any person or entity or any other circumstances extend
the period of the Slope Warranty provided herein.
6.2.1 Appropriate provision in the CC&Rs and in
the grant deeds will give 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.
6.2.2 Appropriate provisions in the CC&R's and 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.
6.3 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
individually -owned property or common areas will be subject to
review and approval by the Board of the Association and/or by
its Architectural Committee.
6.4 Reference in 12eeds and The grant deeds and
the CC&R's will reference this Agreement and the Slope
Displacement Warranty 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.
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6.5 Coli ion and Report ing. The Board of the
Association will be responsible for the collection of homeowner
assessments for the Association's Restricted Assessment 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 Restricted Assessment 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, documentation and/or
cooperation as is reasonably necessary to effectuate the
purposes of this Agreement.
6.6 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.
6.7 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.
6.8 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.
6.9 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.
6.10 Binding Upon Successors. This Agreement is binding
upon and shall inure to the benefit of the parties hereto, their
respective successors and assigns.
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6.10.1 The original Resolution as amended by the
Amending Resolution and as embodied in this Agreement is
binding upon Developer's successors in interest or
assignees as to the Project, and any or all of them.
6.10.2 Effective upon the sale or other conveyance
of Tract 13726 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 Slope
Warranty 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, exonerated and/or
released to Developer by the City.
6.11 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.
6.12 Counteroarts. 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 and 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.
6.13 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 wavier of any provision of this Agreement
shall constitute a waiver of any other provision, nor shall any
such waiver constitute a continuing waiver unless otherwise
agreed in writing.
6.14 Termination. Unless otherwise agreed among the
parties, this Agreement shall automatically terminate upon
expiration of the Slope Displacement warranty Period at which
time the obligations on the part of Developer (or its successors
in interest or assignees) will automatically terminate and the
unused cash, Bond or other Developer Security provided by
Developer (or its successors in interest or assignees) which is
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still held by the City and/or by the Association, if any, shall
be promptly and appropriately returned to Developer, exonerated
and/or released from any further obligation, and upon such
termination, the requirement that the Association maintain
reserves in the Association's Restricted Assessment Fund shall
be deemed likewise terminated. Nothing to the contrary herein
withstanding, this Agreement shall not be deemed terminated as
provided in this Section 6.14 above as to obligations and
liabilities arising because of Slope Displacements occurring
prior to the expiration of the Slope Displacement Warranty
Period so long as a good faith written claim with respect to
such Slope Displacement has been received by the parties prior
to expiration of the Slope Displacement Warranty Period.
6.15 Attorneys' Fees. In the event of any dispute between
the parties to this Agreement or any action or proceeding to
enforce any provision of this Agreement or to seek a declaration
of rights under this Agreement, the prevailing party or parties
shall be entitled to recover from the other party or parties all
expenses, fees and costs of such matter, including without
limitation reasonable attorneys' fees and any costs of appeal,
investigation, preparation and professional or expert
consultation or testimony incurred in connection with the
matter. Moreover, if any party hereto without fault is made a
party to any litigation instituted by or against any other party
hereto, such other party shall indemnify such innocent party
against and save him harmless from all costs and expenses,
including reasonable attorneys' and experts' fees and costs
incurred by him in connection therewith.
6.16 Exculpation and Waiver. The City and the Association
acknowledge that the State of California Public Employees
Retirement System ("System") is a limited partner of the limited
partner of Developer. Notwithstanding any other term or
provision of this Agreement, System's liability hereunder is
solely that of a limited partner of the limited partner of
Developer and no personal or direct liability shall at any time
be asserted or enforceable against System, its Board of
Directors, any member thereof, or any employee or agent of
System on account of or arising out of any obligations arising
out of or related to this Agreement. City and the Association
hereby waive any claim against the partners of the limited
partner of Developer including the System, irrespective of the
compliance or non-compliance now or in the future with any
requirements relating to the limitation of liability of limited
partners.
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6.17 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: Estates at San Juan Capistrano, L.P.
2100 W. Orangewood, Suite #180
Orange, Ca. 92668
Telecopier: (714) 935-0700
Attn: James W. Boyd
Copy To: TSG Independent Property Management, Inc.
P.O. Box 7027
Laguna Niguel, Ca. 92607
Attn: Sally M. Waller
To Association: Estates at San Juan Capistrano Homeowners
Association
2100 W. Orangewood, Suite #180
Orange, Ca. 92668
Attn: James F. Sattler
068/022154-0010/2131149.8 .04/10/98 -is-
0
To the City: The City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, California 92675
Attn.: Director of Engineering and
Building
Telecopier: (714) 493-1053
The City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, California 92675
Attn: City Attorney
Telecopier: (714) 493-1053
IN WITNESS WHEREOF, this Agreement was executed on the date
first above written.
At st:
City Clerk
CITY:
THE CITY OF SAN JUAN CAPISTRANO
B�- _Uj�
nes
Its: Mayor
DEVELOPER:
ESTATES AT SAN JUAN CAPISTRANO, L.P.,
a California Limited partnership
By: TOLL CA GP CORP., a California
corporation - /I A
""m
MM
Title V lr_'rz' Pglt ,glogx! /
ASSOCIATION:
ESTATES AT SAN JUAN CAPISTRANO
HOMEOWNERS'ASSOCIATION, a
California non -Profit
corporation
068/022154-0010/2131149.8 a04/10/98 -16-
0
By:
Name
Title
Approve as to f and content
this day of 1997
City Atto
City of An Juan Capistrano
068/022154-0010/2131149.8 a04/10/98 - 17 -
STATE OF CALIFORNIA
COUNTY OF
On APRIL 14, 1998
personally
)
ss.
)
before me,
Rppeared.4 :•
is
JULIE R. YOUNG
personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person(/) whose name(A) is ar subscribed to the
within instrum nt and acknowledged to me that she/they executed
tsame in authorized capacity (i/s), and that by
i /her/their signature() on the instrumenp the person(/) or the
entity upon behalf of which the person(:V)acted, executed the
instrument.
Witness my hand and official seal.
U
Not V
Public
[SEAL]
STATE OF CALIFORNIA )
ss.
COUNTY OF )
On 1511 'qJ
personally appeared _
JANILVOWS
cmNaftwom
Nd" RM-O�
nj
ire me, � iHH IE
personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed
the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s) or the
entity upon behalf of which the person(s) acted, executed the
instrument.
Witness my hand and official seal.
9 �a:
.
Mycaee►a'°e *nAM3L=
Aad K' y
Notar ublic
068/022154-0010/2131149.8 .04/10/98 -18-
0llOMA3lAt,
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CMIO'P } 3IIl<
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STATE OF CALIFORNIA )
COUNTY OF )
City of San Juan Capistrano
Gov't Code 40814/Civil Code 1181
On April 20, 1998
personally appeared - - -Gil
0
ss.
before me, Cheryl Johnson, City Clerk
personally known to me (e}x-poired-to-ine-oa-t�xe-Basis -o€-sans€acTt-0y
-evidence) to be the person(g) whose name(g) isAaT*2 subscribed to the
within instrument and acknowledged to me that he/fsW�t executed
the same in his/24 /,?§1-T authorized capacity(kas3, and that by
his/h*--W A,iK signatureQ4Y on the instrument the person(XO or the
entity upon behalf of which the person(s) acted, executed the
instrument.
Witness my hand and official seal.
/M _ w „I
.. ! /
r
[SEAL]
068/022154-0010/2131149.8 a04/10/98 -19-
0
EXHIBIT "A"
•
LEGAL DESCRIPTION OF THE PROPERTY
That certain real property located in the City of San Juan
Capistrano, County of Orange, State of California, described as
follows:
in the City of San Juan Capistrano, County of Orange, State
of California, being all of Tract No. 13726 as per map
filed in Book 734, Pages 5 through 12, inclusive, of Maps
in the Office of the County Recorder of said County.
EXHIBIT "A"
TO AGREEMENT ESTABLISHING SLOPE
DISPLACEMENT WARRANTY PROGRAM
068/022154-0010/2131149.8 a04/10/98
EXHIBIT "B"
DEFINITIONS
The defined terms set forth below shall have the definitions
given to them herein:
"Amending Resolution" shall have the definition given to such
term in Paragraph C of the Recitals to the Agreement.
"Association" shall mean Estates at San Juan Capistrano
Homeowners' Association, a California non-profit corporation.
"Association's Restricted Assessment Fund" shall have the
meaning given to it in Section 5.1 of the Agreement.
"Association's Restricted Assessment Account" shall have the
meaning given to it in Section 5.1 of the Agreement.
"Basic Ordinance" shall have the meaning given to such term in
Paragraph B of the Recital to the Agreement.
"Board" shall mean the Board of Directors of the Association.
"Catastrophic Slope Displacement" shall mean displacement of a
manufactured or natural Covered Slope at a depth greater than three
(3) feet with a vertical movement of one (1) foot or more, regardless
of cause except for Excluded Coverage Items.
"City" means the City of San Juan Capistrano, California.
"Claims Adjuster" shall have the meaning given to such term in
Section 2 of the Agreement.
"Covered Repairs" shall mean all repairs to correct any damage
to individual lots and structures or common/public improvements
located within the Covered Slopes of the Project and arising due to
a specified type of Slope Displacement occurrence, but specifically
excluding the Excluded Coverage Items.
"Covered Slopes" means the following slopes within the Project:
(a) All designated common area landscape slopes to be
maintained by the Association pursuant to the provisions of the
Master Declaration;
EXHIBIT "B"
TO AGREEMENT ESTABLISHING SLOPE
DISPLACEMENT WARRANTY PROGRAM
06e/022154-0010/2131149.6 a04/10/9e
0 0
(b) 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 all natural slopes within one hundred fifty
(150) feet of individual lots to the extent that such natural
Slopes are within a fuel modification zone within the Project.
"Developer" means Estates at San Juan Capistrano, L.P., a
California limited partnership.
"Developer Liability Period" shall mean the period commencing
with completion and acceptance by the City of rough grading for the
Project and expiring on the last to occur of (a) expiration of the
first three (3) years after completion and acceptance of rough
grading of those portions of the Property to be rough graded in
connection with the development of the Project, or (b) the close of
escrow for the sale of the last unsold residential lot within the
Project.
"Developer's Security Amount" shall have the meaning given to it
in Section 4.1 of this Agreement.
"Developer's Security" and "Developer's Security Bond" shall
have the meanings given to such terms Section 4.1 of this Agreement.
"Developer's Security Fund" shall have the meaning given to it
in Section 4.1 of this Agreement.
"Developer's Security Fund Account" shall have the meaning given
to it in Section 4.1 of this Agreement.
"DRE" shall have the meaning given to it in Section 1.6 of this
Agreement.
"Excluded Coverage Items" means surface cracking and fissures,
including without limitation desiccation cracks or erosion, defined
as the wearing away of the 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 a Slope Displacement, as defined herein, (ii)
displacement of soil caused solely by earthquake or seismic activity
of significant intensity.
"GHAD" shall mean a Geologic Hazard Abatement District
established in accordance with the provisions of Public Resources
Code Section 26500, et seq.
'00riginal Resolution" shall have the meaning given to it in
Paragraph C of the Recitals to this Agreement.
-2-
068/02215A-0010/2131149.8 a04/10/98
"Project" shall have the meaning given to it in Paragraph A of
the Recitals to this Agreement.
"Property" means that certain real property more particularly
described on Exhibit "A" attached hereto, which real property is the
subject of Tract Map 13726.
"Slope Displacement" means Surficial Slope Displacement (as
defined herein) and Catastrophic Slope Displacement (as defined
herein), but excludes the Excluded Coverage Items and all other slope
and soils displacements not specifically included within the
definitions of Surficial Slope Displacement and/or Catastrophic Slope
Displacement.
"Slope Displacement Warranty Period" has the meaning given to it
in Paragraph 1.1 of this Agreement.
"Slope Displacement Warranty Program" shall have the meaning
given to it in Paragraph C of the Recitals and in Paragraph 1.1 of
this Agreement.
"Sum" shall have the meaning given to such term in Section 4.5.1
of this Agreement.
"Surficial Slope Displacement" shall mean a displacement of a
manufactured Slope which qualifies as a Covered Slope at a depth of
up to three (3) feet with a vertical movement of one (1) foot or
more, regardless of cause excepting Excluded Coverage Items.
"System" shall have the meaning given to such term in Section
6.16 of this Agreement.
-3-
ose/"t2is4-ooio/2131149." a04/ID/98
Brian Johnson
COPY
Real Estate Development Consultant
August 1, 1996
Mr. William Huber
Engineering & Building Director
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
RE: CAPISTRANO ESTATES - TRACT #13726 - LETTER OF CREDIT
Dear Mr. Huber:
In compliance with TITLE 9 -CHAPTER 10 SOILS SUBSIDENCE REMEDIATION
PROGRAM of the City Code, specifically item (i) of (4) Covered Repairs (Long Term) of
(b) Surficial Soil Displacement Remediation Program Element, please find enclosed
herewith a copy of an Irrevocable Standby Letter of Credit in the amount of
$110,642.00 issued to the Estates at San Juan Capistrano Homeowners Association.
The original Letter of Credit has been submitted to the Association and will be retained
by the management company.
If any questions arise in relation to this matter, please do not hesitate to contact me.
Sincerely,
Brian J nson
Enclosure
C: Sam Shoucair-w/enc.
Jim Boyd-w/enc.
Rob Frakes-w/enc.
28382 Chat Drive - Laguna Niguel, CA 92677
Telephone/Fax: (714) 643-2186
BANQUE PARIBAS
LOS ANGELES AGENCY
IRREVOCABLE STANDBY LETTER OF CREDIT
No. 030149
July 31, 1996
Estates at San Juan Capistrano
Homeowners Association
2100 West Orangewood Avenue, Suite 180
Orange, CA. 92668
Amount: US$110,642.00
(UNITED STATES DOLLARS: ONE HUNDRED TEN THOUSAND
SIX HUNDRED FORTY TWO AND 00/100)
Expiry Date: July 31, 1997 at the counters of Banque Paribas Los Angeles Agency
Ladies & Gentlemen:
We hereby establish our Irrevocable Letter of Credit No. 030149 in favor of Estates at San Juan
Capistrano Homeowners Association, a California mutual benefit corporation formed to act as
Homeowners Association (`Beneficiary") by order and for the account of Estates at San Juan
Capistrano, L.P., c/o First Huntingdon Finance Corp. up to an aggregate principal amount of
United States Dollars: One Hundred Ten Thousand Six Hundred Forty Two and 00/100
(USD 110,642.00) available by your sight draft(s) drawn on Banque Paribas, Los Angeles (The
"Bank") accompanied by the following:
1/ A certificate issued by a civil engineer indicating they are licensed in the State of California,
and setting forth the type of damages and the estimated costs of repair in connection with a soils
displacement event involving the Estates at San Juan Capistrano Homeowners Association.
2/ A written statement purportedly signed by the President and the Secretary of the beneficiairy
certifying as follows:
"The undersigned are the duly elected and presently acting President and Secretary of Estates at
San Juan Capistrano Homeowners Association. A soils displacement event occurred on the
_day of (insert date). The association requires funds to repair the subject damages and
2029 CENTURY PARK EAST, SUITE 3900 - LOS ANGELES. CALIFORNIA 90067 - TEL (310) 551-7300 - FAX (310) 556-8759 - TELEX WU 194802 PARIBAS LSA 4
4 n •
Page 2 of 3
L/C 030149
Estates at San Juan Capistrano Homeowners Association
hereby certify that the accompanying certificate is an estimate by a civil engineer licensed in the
State of California setting forth the type of damages and the estimated costs of repair. The total
amount is the sum of insert amount) , written demand has been sent to the Estates at San
Juan Capistrano, L.P. (The "Declarant") at least ten (10) days in advance of the date of this
certificate and declarant has failed to repair or commence the repair of the damages or provide
funds for the repair of the damages. Therefore, the undersigned, on behalf of beneficiary, hereby
demand payment by the bank against the principal amount of this letter of credit in the sum set
forth above. All capitalized terms set forth above and elsewhere in Letter of Credit Number
030149 issued by Banque Paribas Los Angeles have the same definitions as set forth in the
Estates at San Juan Capistrano CC&R's which were recorded the 19th day of July 1996 in the
official records of Orange County, California as instrument No. 19960367581 ".
It is a condition of this letter of credit that it shall be extended for an additional period of one
year from the present or future expiration date hereof unless sixty (60) days prior to such date we
shall notify you in writing by registered or certified mail, return receipt requested at the Estates at
San Juan Capistrano Homeowners Association, 2100 West Orangewood Avenue, Ste 180,
Orange, CA. 92668 that we elect not to renew this letter of credit for such additional period.
Upon receipt by you of such notice you may draw hereunder by means of your draft on us at
sight accompanied by your written statement purportedly signed by the President and Secretary
of Estates at San Juan Capistrano Homeowners Association as follows:
"The undersigned are duly elected and presently acting President and Secretary of Estates at San
Juan Capistrano Homeowners Association and do hereby certify that we have received notice
from Banque Paribas Los Angeles of their intention not to extend Letter of Credit Number
030149 beyond the current expiration date. The letter of credit by this term will expire within
sixty (60) days from the date of this certificate and that the Estates at San Juan Capistrano, L.P.
has failed to provide a replacement letter of credit with terms acceptable to ourselves from
another financial institution and we are therefore entitled to the amount drawn".
Draft(s) drawn under this letter of credit must be marked "Drawn under Banque Paribas Los
Angeles Letter of Credit No. 030149 dated July 31, 1996" and accompanied by the original letter
of credit for proper endorsement.
This letter of credit sets forth in full the terms of our undertaking and such undertaking shall not
in any way be modified, amended or amplified by reference to any document, instrument or
agreement referred to herein or in which this letter of credit is referred to or to which this letter
of credit relates, and any such reference shall not be deemed to incorporate herein by reference
any document, instrument or agreement.
4
4 n
Page 3 of.3
L/C 030149
Estates at San Juan Capistrano Homeowners Association
0
We hereby engage with you that the draft(s) drawn and presented strictly in compliance with the
terms of this Credit shall be duly honored by us if presented on or before the expiry date shown
above (as it may have been extended as provided herein) at our office at the address shown
above.
Partial drawings are permitted but the aggregate of all drawings may not exceed the principal
amount hereof.
Except so far as expressly stated herein, this Credit is subject to the Uniform Customs and
Practice for Documentary Credits (1993 Revision) International Chamber of Commerce
Publication No. 500. This letter of credit shall be deemed to be issued under the laws of the State
of California and shall as to matters not governed by said uniform customs and practice be
governed by and construed in accordance with the laws of the State of California.
Authorized Signature
Authorized Signature
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December 9, 1997
Clerk -Recorder's Office
County of Orange
P. O. Box 238
Santa Ana, California 92701
Gentlemen:
din �
Innelo 1961
1776
The following document is enclosed for recordation:
MEMBERS OF THE CITY COUNCIL
COLLENE CAMPBELL
JOHN GREINER
WYATT HART
GIL JONES
DAVID M. S W ERDLIN
CITY MANAGER
GEORGESCARBOROUGH
Agreement Establishing Slope Displacement Warranty Program for Tract 13726,
Toll Brothers, Inc.
A check in the amount of $76.00 is enclosed to cover recording and conformed copy fees. When
placed of record, please return said document to this office.
A duplicate copy of this letter is enclosed. Please stamp Document Number and date of recording
on the letter and return it to this office in the enclosed, stamped, self-addressed envelope at your
earliest convenience.
Thank you for your cooperation.
Ve
ry
truly
yours,
Cheryl Johnson
City Clerk
Enclosure
Document Number
Date
32400 PASEO ADELANTO, SAN JUAN CAPISTRANO, CALIFORNIA 92675 9 (714) 493-1171
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December 9, 1997
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Mr. Jim Sattler
Toll Brothers, Inc.
2100 West Orangewood Avenue, Suite 180
Orange, California 92668
Re: Agreement Establishing Slope Displacement Warranty Program
Dear Mr. Sattler:
MEMBERS OF THE CITY COUNCIL
COLLENE CAMPBELL
JOHN GREINER
WYATT HART
GIL JONES
DAVID M. SWERDLIN
CITY MANAGER
GEORGESCARBOROUGH
At their meeting of December 2, 1997, the City Council of the City of San Juan Capistrano
approved the "Agreement Establishing Slope Displacement Warranty Program", which was
a condition of approval for Tract 13726.
As the signer on behalf of the Estates at San Juan Capistrano Homeowners' Association,
a fully -executed copy of the Agreement is enclosed. A copy has been forwarded to the
Orange County Recorder for recordation.
Please feel free to contact Sam Shoucair at 443-6355 if you have any questions.
Very truly yours,
Cheryl Johnson, CMC
City Clerk
Enclosure
CC] Engineering and Building Director (with copy of Agreement)
Sam Shoucair (with copy of Agreement)
32400 PASEO ADELANTO, SAN JUAN CAPISTRANO. CALIFORNIA 92675 0 (714) 493-1171
C:
December 9, 1997
IIto Imp I
mMmuo 1961
1776
It
Mr. James Boyd
Toll Brothers, Inc.
2100 West Orangewood Avenue, Suite 180
Orange, California 92668
Re: Agreement Establishing Slope Displacement Warranty Program
Dear Mr. Boyd:
MEMBERS OF THE CITY COUNCIL
COLLENE CAMPBELL
JOHN GREINER
WYATT HART
GIL JONES
DAVID M. SWEROLIN
CITY MANAGER
GEORGESCARBOROUGH
At their meeting of December 2, 1997, the City Council of the City of San Juan Capistrano
approved the "Agreement Establishing Slope Displacement Warranty Program", which was
a condition of approval for Tract 13726.
As the signer on behalf of the Estates at San Juan Capistrano, L.P., a fully -executed copy
of the Agreement is enclosed. A copy has been forwarded to the Orange County Recorder
for recordation.
Please feel free to contact Sam Shoucair at 443-6355 if you have any questions.
Very truly yours,
Cheryl Johnson, CMC
City Clerk
Enclosure
cc: Engineering and Building Director (with copy of Agreement)
Sam Shoucair (with copy of Agreement)
32400 PASEO ADELANTO, SAN JUAN CAPISTRANO, CALIFORNIA 92675 0 (714) 493-1171
0 0
gent District for Tr 13726, Toll Brothers (Estates at San an Capistrano, L.P.) and
a Public Hearing Da%97-
e meeting of January 6, 1998:
-2-2 "GROLOGIC HAZARD %AB TEMENT - A RESOL ION OF THE CITY COUNCIL OF SAN
AN CAPISTRANO, CALIF DECLARING THAT OF
THE
SXk4 JUAN CAPISTRANO I UBJECT TO THE PROVISIO OF
P IC RESOURCES CODE, VISION 17, "GEOLOGIC H kZ
ABATISMENT DISTRICTS"
ITRAC
6 A
RESOLUTION THE CITY COUNCIL OF&AN JUAN CAPISTRANO,
CALIFORNIA DE ARING SUFFICIENCY OF PIiTITION, DIRECTING
NOTICES TO BE ED AND SETTING A T AND DATE FOR
PUBLIC HEARING F FORMATION OF A GE OGIC HAZARD
ABATEMENT DISTRIC URSUANT TO THE REQ MENTS OF
PUBLIC RESOURCES CO OF THE STATE OF C ORNIA,
DIVISION 17 "GEOLOGIC ARD ABATEMENT DIS CTS"
(TRACT 13726)
6. CONSIDERATION OF AGREEMENT FOR SURFICIAL SOILS REMEDIAL
PROGRAM, TRACT 13726. ESTATES AT SAN JUAN CAPISTRANO- T. P
(TOLL(600.30
As set forth in the Report dated December 2, 1997 from the Director of Engineering and
Building, the Agreement establishing Slope Displacement Warranty Program for Tract 13726,
Toll Brothers (Estates at San Juan Capistrano, L.P.) was approved.
590 50)
set forth in the Report da d December 2, 1997 from the Director of,,Engineering and
lding, the following Resolut n was adopted approving installation o stop signs for
Zound and westbound traffic o Via Rueda at Calle San Remo:
- A RESOLUTI OF THE CITY COUNCIL OF
THE CNONA
SAN JUAN CAPISTRAN , ALIFORNIA, APPROVING
THE LATION OF EASTBOUND WESTBOUND STOP
SIGNSRUEDA AT CALLE SAN RE
8. IDERA I F PS R TMR
NORTH A I 600 70)
As set forth in the Report dated Dece er 2, 1997 from the Public orks Director, the
Personal Services Agreement with Richard . Sla`d\e & Associates for hydro ologic services,
City Council Minutes -6- 12/2/97
AGENDAITEM
TO:
FROM:
SUBJECT:
0 0
December 2, 1997
George Scarborough, City Manager
William M. Huber, Director of Engineering & Building
Consideration of Agreement for Surficial Soils Remediation Program ;
Tract 13726, Toll Brothers (Estates at San Juan Capistrano, L.P. ).
It is recommended that the City Council approve the "Agreement Establishing Slope Displacement
Warranty Program" for Tract 13726, Toll Brothers (Estates at San Juan Capistrano, L.P. ).
SITUATION
A. Summary and Recommendation
Tract 13726, Toll Brothers, is required to establish by agreement a Surficial Soils
Remediation Program as provided by City Municipal Code Section 9-10. The agreement
provided in Attachment 1 provides the mechanism to establish the program. The agreement
has been reviewed and found to be consistent with the provisions of the Code. Staff is,
therefore, recommending its approval.
B. Background
History
On June 18, 1991, the City Council approved Glenfed Vesting Tentative Tract Map
13726, located at the south easterly end of Camino La Ronda, which allowed the
subdivision of a 46 -acres parcel, known as Area H, into 63 custom home lots. One of the
conditions of approval requires the developer to provide a soils subsidence warranty
program. When Toll Brothers purchased Area H from Glenfed in December of 1994,
they requested to change the custom home concept to production homes and to privatize
/ gate their community. On March 5, 1996, the Final Map and Subdivision Improvement
Agreement were approved by the City Council.
On August 15, 1995, City Council adopted Ordinance 768 adding Municipal Code
Section 9, Chapter 10, "Soils Subsidence Remediation Program". This program consists
FOR CITY COUNCIL ACS— �6
0 0
AGENDA ITEM -2- December 2, 1997
of two parts: 1) Surficial Soils Displacement Element which is 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 reached
75% or more of the developer's initial deposit, then that deposit would be released back
to the developer and: 2) Catastrophic Soils Displacement Element which requires the
formation of a Geologic Hazard Abatement District (GRAD). 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 Item deals only with the Surficial Soils Displacement Element. The
Catastrophic Soils Displacement Element is concurrently being formed and processed
separately as it requires Council authorization to initiate the District, then conduct a
public hearing.
Estates at San Juan Capistrano, L.P. Agreement
The Agreement (Attachment 1) has been drafted and reviewed by staff and 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.
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 provided a detailed review of 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, therefore, now ready for acceptance and
approval by the City Council.
1 -CLIC Lei WUNWIJ ►_
There is no cost impact to the City's General Fund.
0
AGENDA ITEM -3-
PUBLIC NOTIFICATION
Mr. James W. Boyd, Toll Brothers Development
Mr. Jim Sattler, Estates at San Juan Capistrano
ALTERNATE ACTIONS
0
December 2, 1997
Approve the "Agreement Establishing Slope Displacement Warranty Program" for Tract
13726, Toll Brothers (Estates at San Juan Capistrano, L.P. ).
Do not approve Agreement.
Return to staff for additional information.
It is recommended that the City Council approve the "Agreement Establishing Slope Displacement
Warranty Program" for Tract 13726, Toll Brothers (Estates at San Juan Capistrano, L.P. ).
Respectfully submitted,
G� "0, A (, " -
William M. Huber
Director of Engineering & Building
WMH/SS:ch
Attachment:
xagendw\soilToll.ss
Prepared by:
amcair
Senior Engineer
1. Agreement Establishing Slope Displacement Warranty Program