1992-0915_WARMINGTON SAN JUAN ASSOCIATES, L.P._Second Restated Agreement0 0
WAR LINGTON
N,N�E ,gtie HOMES
February 5, 1993
City of San Juan Capistrano
CITY CLERKS OFFICE
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Re: Tract #12633/#13027 - Recorded Copy of Slope Displacement
Warranty Program
Dear Sirs:
Enclosed please find a copy of the Second Restated Agreement
Establishing Slope Displacement Warranty Program, recorded
October 1, 1992.
Should you have any questions, please contact us.
Thank you.
WARMINGTON HOMES
Edgcomb, 6'Cj'--
Vice President,
O.C./S.D. Division
LJE/ddr
3090 Pullman Street, Suite A, Costa Mesa. California 92626 (714) 557-5511 - FAX (714) 641-9337
COMPLETE THIS INFORMRTION:
(IRECORDING (REQUESTED BY:
FIND WHEN RECORDED MRIL T0:
92-66529E
Recorded at the request of
FIRST AMERICAN TITLE INS. CO.
1
pm. OCT 11992
P. M.
Official Recoras
C4C4County, C lifornia
Q.c Recorder
THIS SPRCE FOR RECORDER'S USE ONLY
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THIS PRGE RDOED TO PROUIDE RDEOURTE SPRCE FOR RECORDING INFORMRTION
(Rdditional recording fee applies)
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RECORDING REQUESTED BY:
FIRST AMERICAN TITLE INSURANCE CO.
WHEN RECORDED MAIL TO:
Cynthia B. Paulsen, Esq.
Palmieri, Tyler, Wiener,
Wilhelm & Waldron
2603 East Main
East Tower, Suite 1300
Irvine, California 92714-6228
ORIGINAL
;Recording fee -Exempt due to Gov't
;Code §6103
;Documentary Transfer Tax - Exempt
No onsideration
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Ci y Cler of
;City of San Juan Capistrano
Space above this line for RecoRe s Use only
SECOND RESTATED AGREEMENT ESTABLISHING SLOPE
DISPLACEMENT WARRANTY PROGRAM
This Second Restated Agreement Establishing Slope Displacement
Warranty Program ("Second Restated Agreement") is entered into as
of September 15, 1992, by and among Warmington San Juan Associates,
L.P., a California limited partnership ("Warmington San Juan"), San
Juan Creek Homeowners Association ("Association") and the City of
San Juan Capistrano ("City"), and restates and replaces as to that
certain real property more particularly described on Exhibit "A"
attached hereto and incorporated herein by this reference, that
certain Restated Agreement Establishing Slope Displacement Warranty
Program ("Restated Agreement") entered into as of September 6, 1988
and recorded on September 13, 1988, by and among Rancho San Juan,
a California joint venture ("Rancho San Juan"), RSJ Association,
RSJ Estates Association and the City, which said Restated Agreement
restated and replaced that certain Agreement Establishing Slope
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Displacement Warranty Program ("Original Agreement") entered into
as of July 22, 1988, by and among Dividend Development Corporation,
the Rancho San Juan Homeowners Association, the Rancho San Juan
Estates Homeowners Association and the City.
R E C I T A L S:
A. This Second Restated Agreement is entered into by the
parties referenced above in order to reflect the ownership of
affected properties and creation of a new non-profit corporation
which will maintain slopes within the property owned by Warmington
San Juan.
B. On June 17, 1986, the City Council of the City of San
Juan Capistrano ("Council") passed, approved and adopted Resolution
No. 86-6-17-4, approving Tentative Tract No. 12633.
C. Thereafter, Rancho San Juan further divided Tentative
Tract 12633 into Tracts 13025, 13026, 13027, 13101 and 12633.
D. On September 15, 1987, the City Council passed, approved
and adopted Ordinance No. 605 of the City of San Juan Capistrano
("Ordinance"), requiring that certain developments in the City
include a slope displacement warranty program.
E. Warmington San Juan purchased from Rancho San Juan that
certain real property more particularly described on Exhibit "A"
attached hereto and incorporated herein by this reference
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("Warmington Property"). Only the Warmington Property is burdened
by this Second Restated Agreement.
F. San Juan Creek Association, a California non-profit
mutual benefit corporation, is the homeowners association formed to
manage and operate the Warmington Property pursuant to that certain
Declaration of Covenants, Conditions and Restrictions ("CC&Rs")
which will be recorded against the Warmington Property.
G. By this Agreement, Warmington San Juan will satisfy the
requirements of the Ordinance.
1. Slope Displacement Warranty
1.1 Warranty. The Ordinance requires that the
Warmington San Juan development include a slope displacement
warranty program ("Slope Warranty") for a period of ten years after
the date of the final grading approval for the Tract 13027 and
12633. From the time of the acquisition of the Warmington Property
within Tracts 13027 and 12633 until July 1, 1998, ten years from
the date upon which final grading was completed for Tracts 13027
and 12633, Warmington San Juan warrants the manufactured slopes
within each such tract against slope displacement, as defined
herein.
1.1.1 The Slope Warranty provided herein will
apply only to manufactured slopes which were prepared by or on
behalf of Rancho San Juan, within the precise boundaries of the
Tract 13027 and Tract 12633 shown on Exhibit "B" to this Agreement.
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1.1.1(i) "Slope Displacement" Definition.
"Slope Displacement" is defined as (a) displacement of soil on a
manufactured slope at a depth of two feet or more with vertical
movement of one foot or more, regardless of cause, and regardless
of the square footage involved, or (b) displacement of soil on a
manufactured slope with vertical movement of one foot or more and
involving an area of at least 900 square feet, regardless of depth
and regardless of cause.
include:
1.2 Exclusions. Slope Displacement does not at any time
1.2.1 Surface cracking or fissures, including
without limitation desiccation cracks.
1.2.2 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 Slope
Displacement, as defined above.
1.2.3 Displacement of soil caused solely by
earthquake or seismic activity.
1.3 Reserved Richts. Warmington San Juan and the
Association reserve the right to assert claims against any person
or entity responsible in whole or in part for displacement of soil
on the slopes, whether covered by this definition or not, including
without limitation claims against one another.
1.4 Covered Repairs. During the term of the Slope
Warranty, Warmington San Juan will make or cause to be made all
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repairs to correct Slope Displacement, as defined above in section
1.1.1(1), at Warmington San Juan's sole expense.
2. claims Procedures
2.1 If a Slope Displacement event occurs, the
Association will at its expense obtain a report from a qualified
consultant retained by the Association, as to the extent of damage
and coverage by the Slope Warranty, causation, and the nature and
cost of recommended repairs. If the damage is covered by the Slope
Warranty, Warmington San Juan will repair the damage or cause it to
be repaired. Warmington San Juan will in its sole discretion
determine the scope of repair work and will direct the work,
subject to the requirements of the applicable building code. Such
work will be performed by persons or entities selected and
compensated by Warmington San Juan.
2.2 If the damage is not covered by the Slope Warranty,
the Association will be responsible for repairs. The Association
will, under those circumstances, determine the scope of repair work
and will direct the work. Such work will be performed by persons
or entities selected and compensated by the Association.
2.3 In the event of a dispute between Warmington San
Juan and the Association as to responsibility for the repairs,
Warmington San Juan and the Association will exercise good faith
and cooperation to negotiate the matter. If Warmington San Juan
and the Association are unable to resolve the dispute, it will be
resolved pursuant to section 3, below.
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2.4 Emergencies
2.4.1 "Emergency" is defined for purposes of this
Agreement as slope displacement which presents an imminent threat
to human safety or the structural integrity of a residence.
2.4.2 In the event of an Emergency, the Association
will repair the damage or cause it to be repaired. If the damage
is covered by the Slope Warranty, Warmington San Juan will
reimburse the Association for the cost of the repair work. Any
dispute will be resolved pursuant to section 2.3, above.
3. Remedies
3.1 If, during the period of the Slope Warranty,
Warmington San Juan fails to make reasonably necessary repairs
which are covered by the Slope Warranty, the Association may notify
the City Attorney, who will provide written notice to Warmington
San Juan of such failure and provide Warmington San Juan with an
opportunity to cure. "Cure" will be defined as commencement of
reasonably necessary covered repairs by or on behalf of Warmington
San Juan within thirty calendar days of receipt by Warmington San
Juan of the notice, unless it is unreasonable or impractical to do
so, in which case such reasonably necessary covered repairs shall
be commenced within a reasonable time (the "Cure Period").
3.2 If Warmington San Juan fails to commence, or cause
to be commenced, performance of reasonably necessary covered
repairs during the Cure Period, then the Director of Community
Planning and Development of the City ("Director") may declare a
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default under this Second Restated Agreement. However, a default
cannot be declared until the Cure Period has expired.
3.3 If such default occurs, then the City may proceed
with a judicial reference to obtain a judgment (a) that Warmington
San Juan is obligated to make or cause to be made the reasonably
necessary covered repairs or (b) that the City may resort to the
security provided by Warmington San Juan.
4. Security for the Slope Warranty
4.1 Bond. Warmington San Juan will provide the City
with a bond or bonds in the total amount of $20,000 (the "Bond")
assuring Warmington San Juan's performance of its obligations under
the Slope Warranty. Warmington San Juan agrees to report to the
Director each renewal of the Bond or issuance of a new Bond.
4.2 If the Bond is subjected to covered claims which
diminish or exhaust the Bond, Warmington San Juan will, upon
request of the City, post a new or additional Bond in the amount
necessary to secure the Slope Warranty at the level of $20,000.
4.3 The surety and the form of the Bond will be subject
to the approval of the City, which approval will not be
unreasonably withheld.
4.4 Alternatively, Warmington San Juan may provide a
substitute form of security acceptable to both Warmington San Juan
and to the City, the approval of which will not be unreasonably
withheld by the City.
4.5 At any time during the period of the Slope Warranty,
either Warmington San Juan or the Association may, at their sole
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option, satisfy the security requirement herein by providing the
City with evidence of insurance against Slope Displacement, as
defined in section 1.1.1(1), above.
5. Homeowner Assessment Fund
5.1 The Association will collect homeowner assessments
each month on a five dollar per lot basis, commencing upon the
close of escrow for each lot to a member of the public (the "Slope
Fund"). The Slope Fund, consisting of assessment payments and
interest thereon, is intended to grow to a projected total of
$20,000 by the end of the Slope Warranty period, or earlier. The
Slope Fund will be available to the Association to pay all repair
costs not covered by the above definitions of Slope Displacement.
5.2 Assessment payments for lots in Tracts 13027 and
12633 will be collected by the Association. The assessments to the
Association may cease when the total of the Association's Slope
Fund reaches $20,000.
5.3 In the event the Slope Fund is depleted by
reasonably necessary repair costs, as contemplated by this Second
Restated Agreement, the Association will, by special assessments,
restore the total amount in the Slope Fund to $20,000 within a
reasonable period of time.
5.4 Changes in the amount of, or cessation of, the
assessments by the Association shall require the approval of the
City Council, which approval shall not be unreasonably withheld.
The City may enforce the provisions of this section 5.
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6. Miscellaneous
6.1 Additional Limitations on Slope Warranty
6.1.1 The Slope Warranty 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 License and Right to Enter
6.2.1 Appropriate provisions in the grant deeds
will give Warmington San Juan and its successors a license and
right to enter onto the common areas and individually -owned lots
within the Warmington Property so that Warmington San Juan or its
successors and their agents may 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.
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 so that the
Association or its agents may inspect and maintain the slopes
within the Warmington Property.
6.3 Review and Approval by Association. Any proposed
alterations by homeowners or any other person or entity to the
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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.
6.4 Reference in Deeds and CC&R's. The grant deeds and
the CC&R's will reference the Slope Warranty provided herein. The
provisions of this Second Restated Agreement constitute covenants
running with the land and an equitable servitude as to the real
property referenced herein. ,
6.5 Collection and Reporting. The Board of the
Association will be responsible for the collection of homeowner
assessments for the Slope Fund and accounting for such assessments
and interest thereon. The Board of the Association will report to
Warmington San Juan and to the Director the incidence of covered
and non -covered claims, as well as the balance in the Slope Fund as
of the date of the report. Such reports will be made on or before
January 30 and July 30 of each year. The Board will also provide
to Warmington San Juan at Warmington San Juan's request, and to the
Director at the Director's request, any further information,
documentation and/or cooperation as is reasonably necessary to
effectuate the purposes of this Second Restated Agreement.
6.6 Dispute Resolution. Any dispute arising out of this
Second Restated Agreement shall be heard by a referee pursuant to
the provisions of California Code of Civil Procedure section 638
et. seq., for a determination to be made which shall be binding
upon the parties as if tried before a court or jury.
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6.6.1 Within five (5) business days after service
of a demand by a party hereto, the parties shall agree upon a
single referee who shall then try all issues, whether of fact or
law, then report a finding and judgment thereon. If the parties
are unable to agree upon a referee, either party may seek to have
one appointed, pursuant to California Code of Civil Procedure
section 640, by the presiding judge of the Orange County Superior
Court.
6.6.2 The compensation of the referee shall be such
charge as is customarily charged by the referee for like services.
The cost of such proceedings shall initially be borne equally by
the parties. However, the prevailing party in such proceedings
shall be entitled, in addition to all other attorney's fees and
costs, to recover its contribution for the cost of the referee as
an item of recoverable costs.
6.6.3 The referee shall apply all California rules
of procedure and evidence and shall apply the substantive law of
the State of California in deciding the issues to be heard.
6.6.4 The referee's decision under California Code
of Civil Procedure section 644 shall stand as the judgment of the
court, subject to appellate review as provided by the laws of the
State of California.
6.6.5 The parties agree that any such dispute shall
be decided as soon as practicably possible. The date of hearing
for any proceeding shall be determined by agreement of the parties
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and the referee, or if the parties cannot agree, then by the
referee.
6.6.6 The referee shall have the power to award
damages and all other relief.
6.7 Further Acts. The parties to this Second Restated
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 Second Restated Agreement.
6.8 Headings. The headings in this Second Restated
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 Second Restated Agreement or any
provision hereof.
6.9 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 Second Restated 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 Second Restated
Agreement, or making this settlement provided for herein, except as
expressly stated in this Second Restated Agreement.
6.10 Entire Agreement. This Second Restated 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 Second Restated
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Agreement may be amended only by an agreement in writing among
Warmington San Juan (or its successors in interest or assignees),
the City, and the Association, acting by and through its Board of
Directors.
6.11 Binding Upon Successors. This Second Restated
Agreement is binding upon and shall inure to the benefit of the
parties hereto, their respective agents, employees,
representatives, assigns, heirs, and successors in interest.
6.11.1 The Ordinance is binding upon Warmington San
Juan's successors in interest or assignees as to the Warmington
Property, and any or all of them.
6.11.2 Effective upon the sale or other conveyance
of Tracts 13027 and 12633, and any or all of them, Warmington San
Juan will be relieved of its obligations under this Second Restated
Agreement as to such tracts, which obligations are assumed by
Warmington San Juan's successors in interest or assignees, pursuant
to section 6. 11, above, including without limitation the obligation
to provide security for the Slope Warranty herein. Such security
will be subject to the approval of the City, which approval will
not be unreasonably withheld.
6.12 ' Construction of Agreement. Each party has
cooperated in the drafting and the preparation of this Second
Restated Agreement. Hence, in any construction to be made of this
Second Restated Agreement, the same shall not be construed against
any party. This Second Restated Agreement shall be construed under
California law.
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6.13 Counterparts. This Second Restated Agreement may
be executed in counterparts, and when each party has signed and
delivered to the other at least one such counterpart, each
counterpart shall be deemed an original, and when taken together
with the other signed counterparts, shall constitute one agreement,
which shall be binding upon and effective as to all parties.
6.14 Severability and No Waiver. The invalidity or
unenforceability of any provision of this Second Restated Agreement
shall not invalidate or render unenforceable any of the other
provisions of this Second Restated Agreement. No waiver of any
provision of this Second Restated Agreement shall constitute a
waiver of any other provision, nor shall any such waiver constitute
a continuing waiver unless otherwise agreed in writing.
6.15 Termination. Unless otherwise agreed among the
parties, this Second Restated Agreement will terminate as provided
in section 1.1, above, at which time the obligations on the part of
Warmington San Juan (or its successors in interest or assignees)
will automatically terminate and the Bond or other security
provided by Warmington San Juan (or its successors in interest or
assignees) will be automatically exonerated and/or released from
any further obligation.
6.16 Notices. All notices given pursuant to this Second
Restated Agreement and all documents to be transmitted shall be
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sent by United States mail, postage prepaid, certified return
receipt requested, as follows:
To Warmington San Juan:
Warmington San Juan Associates, L.P.,
a California limited partnership
3090 Pullman Street
Costa Mesa, California 92626
Attention: L.J. Edgcomb
With a copy to:
Cynthia B. Paulsen, Esq.
Palmieri, Tyler, Wiener, Wilhelm & Waldron
2603 Main Street, Suite 1300
Irvine, California 92714
To San Juan Creek:
San Juan Creek Homeowners Association
3090 Pullman St., Ste. A
Costa Mesa, CA 92626
Attention: Judi Reid
To the City:
The City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, California 92675
Attention: Mr. Tom Tomlinson
Director of Planning Services
The City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, California 92675
Attention: Richard Dunhalter, Esq.
City Attorney
6.17 Affect on First Restated Agreement. Neither
Warmington San Juan, the Warmington Property or San Juan Creek
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Homeowners Association shall have any further liability of any kind
or nature under the Original Agreement or Restated Agreement.
IN WITNESS WHEREOF, this Second Restated Agreement was
executed on the date first above written.
THE CITY OF SAN JUAN CAPISTRANO
By:
Attest: T
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as to form
Citanhalter
City Attorney
City of San Juan Capistrano 7
WARMINGTON SAN JUAN ASSOCIATES, L.P.,
a California limited partnership
By: Warmington Homes, General Partner
By
Its:
SAN JUAN CREEK HOMEOWNERS
ASSOCIATION, a California non-profit
mutual benefit corporation
By
Its:
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STATE OF CALIFORNIA
On
9
me,
personally known to me (or proved
to me on the basis of satisfactory evidence) to be the personl7 whose name(?f islawsubscnbed to the within
instrument and acknowledged to me that t"Ishe/tf y executed the same in pts/her/ttoeIr authorized capaciry(iK,
and that by *her/thleir signature(s) on the instrument the
person acted, executed the instrument.
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WITNESS my nd and tial seal.
Signature
person or the entity upon behalf of which the
OFFICIAL SEAL
SAUNDRA RANiZ
Notts Publo-CoMmlo
ORANGE COUNTY
MV Common EIQ*41
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(This area for official notarial seal)
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STATEOFCALIFO
FALIFORNIA i
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. befor me. the undersigned a Notary Public in and far
_y said State, pe na11Y aPPeare L _------_.�_
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Personally known to me (or proved to me on the
om basis of satisfactory evidence) to be the persons who executed the within instrument
c O President s^a ry, on belieN
a. °' the corporation therein named, and acknowledged to me that said
m ti
corporation executed the within instrument pursuant to its by -
c laws ora resolution of its board of directors, said corporation beino
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known to me to be the general partner of a r lr1 n -O I
-----
OFFICIAL SERI
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5 a �—i 7\�r�_ to S
" SAUNDRA RANK
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the limited partnership that executed the within instrument, and
N01efy Public-CaQfomlra
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acknowledged tomethatSuch Corporation executed the Same as
ORANGE COUNTY
a
such partner and that such partnership ex ted the sam
My Commfsslon EXOGS
All" 5, 1994
WITNESS my ha4 and nfrtta serr
O Signature _ J
n (This area for official notarial seal)
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EXHIBIT "A"
WARMINGTON PROPERTY
That certain real property located in the City of San Juan
Capistrano, County of Orange, State of California, described as
follows:
Lots 1 through 68 and Common Area Lots B, C, D, E, F and G of Tract
No. 13027, as per map recorded in Book 587, Pages 46 through 50 of
Miscellaneous Maps, Records of Orange County, California.
Lots 1 through 52 and Common Area Lots C, D, E and F of Tract No.
12633, as per map recorded in Book 588, Pages 7 through 10 of
Miscellaneous Maps, Records of Orange County, California.
EXHIBIT B