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1996-0802_SAN JOAQUIN HILLS TRANSPORTATION CORRIDOR_Decl. of Covenants, Conditions and Restrictions CAPISTRANO UNIFIED SCHOOL DISTRICT San Juan Capistrano, California June 24, 1996 TO: Dr. James A. Fleming, Superintendent FROM: Terri E. Lunine, Deputy Superintendent Administration Daniel J. Crawford, Assistant Superintendent Operational Services SUBJECT: SAN JOAQUIN HILLS TRANSPORTATION CORRIDOR SOUNDWALL ------------------------------------------------------------------------- BACKGROUND INFORMATION The southbound portion of the San Joaquin Hills Transportation Corridor is expected to be completed in Summer 1996. As a condition of construc- tion, the Transportation Corridor Agency (TCA) is required to provide noise mitigation by constructing a soundwall . To minimize the height of the wall necessary to meet noise standards, the City of San Juan Capistrano has asked the District to approve a revised mitigation plan. CURRENT CONSIDERATIONS District and City of San Juan Capistrano staffs have been developing a Declaration of Covenants, Conditions and Restrictions (CC&Rs) required by the State of California. The CC&Rs spell out City of San Juan Capistrano and District responsibilities. The District's responsibility is limited to removal of graffiti on the District side of the soundwall . Exhibit A is the proposed Declaration of Covenants, Conditions and Re- strictions required by the State of California. FINANCIAL IMPLICATIONS There would be no financial impact from approving the Declaration. STAFF RECOMMENDATION It is respectfully recommended that the Board of Trustees approve the Declaration of Covenants, Conditions, and Restrictions. FAULTER/SOUNDWAL DECLARATION OF COVENANTS_ CONDITIONS AND RESTRICTIONS THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS ("Declaration") is made this 24th day of June, 1996, by Capistrano Unified School District ("District") for the benefit of San Joaquin Hills Transportation Corridor Agency, a California joint powers agency ("Agency") . A. Agency holds record title to certain land located in the County of Orange, State of California, depicted in Attachment 1 attached hereto and incorporated herein by this reference, and any improvements located thereon (collectively, "Corridor Property") . Agency's contractor, California Corridor Constructors ("CCC") , is currently constructing the San Joaquin Hills Transportation Corridor ("Corridor") on Corridor Property. Upon completion of construction, Agency shall transfer record title to Corridor Property to the State of California, Department of Transportation ("Caltrans") , and Caltrans shall operate Corridor, a toll limited access highway, thereon. Agency shall continue to operate the toll facilities located on Corridor. B. District is the fee owner of certain land located in the City of San Juan Capistrano ("City") , County of Orange, State of California, more particularly described in Attachment 2 attached hereto and incorporated herein by this reference (collectively "District's Property") . District's Property is immediately adjacent to Corridor Property. C. Mitigation Measure 5.1 of Final Environmental Impact Report/TCA EIR 1 Volume 1-Final EIR dated March, 1991 suggests that noise barriers be installed to attenuate sound impacts from Corridor Property on District's Property. These attenuation are voluntary. D. City has entered into an AGREEMENT ESCROW AND CONSTRUCTION OF SOUNDWALL ON PUBLIC PROPERTY, dated April 2, 1996 ("Agreement") , wherein, for mutual good and valuable consideration, City has elected to assume responsibility for construction and maintenance of the Soundwall (as described in the Agreement) necessary to mitigate Corridor traffic noise and prevent unauthorized access to Corridor. District has also agreed to release Agency, CCC and Caltrans from any future responsibility with regard to mitigation of the sound impact on District's Property from operations of Corridor on Corridor Property. NOW, THEREFORE, in mutual consideration of the foregoing, District hereby declares that District's Property, and every portion of it, shall be subject to the following declarations, limitations, covenants, conditions and restrictions, all of which are imposed as equitable servitude and run with the land: 1. Assumption of Responsibility and Release of Claim and Future Claims. City hereby forever assumes responsibility for the Soundwall including but not limited to cosmetic appearance, structural integrity, Exhibit A Page 1 of 3 Declaration, page 2 maintenance, and graffiti removal (District will assume on District side of wall - reference "D" above) . City and District further forever release CCC, Agency, Caltrans, and any assigns, successors, officers, directors, agents, representatives, employees, insurers, and partners of any of them, including without limitation any successor-in-interest to Corridor Property or any part of it (collectively, "Released Parties") , from any and all rights, interests, claims, demands, causes of action, indebtedness, liabilities and obligations of every kind and nature, known and unknown, which District may own or hold against Released Parties, arising prior to and after the date hereof and/or in any way related to any event surrounding of concerning the design and construction of the Soundwall , or noise generated by the operation of Corridor at a level not greater than that set forth in the EIR. 2. Rights of Caltrans. Owner's Agent (City) pursuant to the Agreement in Recital "D, " shall obtain a permit from Caltrans prior to any entry onto Corridor Property. Should Owner's Agent fail to comply with the terms of Declaration, Caltrans may, five (5) days after providing written notice of the default to Owner's Agent, perform Owner's Agent's obligations at Owner's Agent's cost to be reimbursed to Caltrans by Owner's Agent. However, no notice shall be required for matters relating to or impacting safety and/or access control . Additionally, Caltrans shall have the right to control access to Corridor at all times through fencing or any other appropriate means. 3. General Release. In connection with City and District agreements and the releases contained in paragraph 1 of Declaration, City and District hereby waive and relinquish all rights and benefits which they may have under Section 1542 of the California Civil Code, which provides as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in its favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. " 4. Indemnification. City and District understand and agree to indemnify and hold harmless Released Parties from all liability in connection with the Soundwall and Agreement Escrow and Construction of Soundwall on Public Property. 5. Enforcement. The covenants, conditions and restrictions contained in and/or provided by Declaration may be enforced by any and all available remedies by Agency or by Caltrans or by their successors and/or assigns. Failure to enforce any provisions of Declaration shall in no event be deemed to constitute a waiver of the right at any time thereafter to enforce such provisions or any other provision contained in Declaration. Exhibit A Page 2 of 3 0 Declaration, Page 3 6. Successors and Assigns. The terms and conditions of Declaration shall bind the successors and assigns of Agency and District, shall inure to the benefit of the successors and assigns of Agency (including without limitation Caltrans) , shall burden the successors and assigns of District, shall attach to and run with Corridor Property and District's Property, shall be appurtenant to Corridor Property, and shall be covenants running with the land. 7. Compliance with California Law. The obligations and benefits contained herein are covenants that run with the land and shall bind the successors, heirs, and assigns in interest of the parties hereto as to their respective parcels. Without limiting the generality of the foregoing, City and District intend Declaration to comply with all relevant provisions of California law regarding covenants that run with the land including without limitation California Civil Code Section 1468. 8. Severability. Each term and provision of Declaration" is intended to be severable and shall continue in full force and effect although other provisions herein may be determined invalid or void for any reason. IN WITNESS WHEREOF, City and District have executed Declaration as of the date first above written. CAPISTRANO UNIFIED SCHOOL DISTRICT CITY OF SAN JUAN CAPISTRANO Signature gna re Assistant Su erintendent, Operational Wyatt dart, Mayor It e Services It e June 24, 1996 August 2, 1996 ateat—� Sr5cty.NP.0:dK0vM.da 6-12-96 Exhibit A Page 3 of 3 CALIFORNIA ALL-PURPO& ACKNOWLEDGMENT • State of County of I � fn� On alltiL .�GR� before me, I— Da / Name and itle of Offic r(e.g.,'Jane Doe, olery Public") personally appeared 10/Af]I � 11 A."IJ -11 Names)of Signer(s) ❑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), PAUTAJ.BOIZ or the entity upon behalf of which the person(s) acted, COMM.i 1027921 33 Notary Pubic–Caiiforria g executed the instrument. ORANGE COUNN comm. 1'MAY p'1098 WITNESS my hand and official seal. - VSignature of No ublic OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: beo I n(2{'f rm d Coueno nk O t)n6b hrms a Reside f,avis Document Date: 0IUAQ �y i Ig4(o Number of Pages: J3 Signer(s) Other Than Named Above: 1004-ft oV SI Qk M h,1 Capacity(ies) Claimed by Signer(s) Signer's Name: 111 pi MILLF y-3 Signer's Name: ❑ Individual ❑ Individual QXorporate Officer ❑ Corporate Officer Title(s): Title(s): ❑ Partner—❑ Limit de General ❑ Partner—❑ Limited ❑ General ❑ Attorney-in-Fact ❑ Attorney-in-Fact ❑ Trustee ❑ Trustee ❑ Guardian or Conservator ❑ Guardian or Conservator ❑ Other: Tap of thumb here ❑ Other: Top of thumb here Signer Is Representing: Signer Is Representing: C 1994 National Notary Association•8238 Hammet Ave.,P.O.Box 7184"Canoga Park,CA 91309-7184 Prod.No.5907 Reorder:Call Toll-Free 1-8110-87&8827 PUBLIC AGENCY FORM OF ACKNOWLEDGEMENT State of California ) County of Orange ) ss. City of San Juan Capistrano ) (Gov't Code 40814 & Civil Code 1181) On August 2. 1996 , before me, Cheryl Johnson City Clerk, personally appeared Wyatt Hart personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. (SEAL) WITNESS my hand and official seal. City Clerk OPTIONAL Capacity Claimed by Signer Description of Attached Document Municipal Corporate Officer CC&R's - San Joaquin Hills Transportation Mayor Corridor Soundwall Title Title or Type of Document Signer is Representing Three Number of Pages City of San Juan Capistrano June 24, 1996 Date of Document Daniel Crawford. CUSD Signer(s)Other Than Named Above CapAtrano UnifieAchool District Excellence in Education Y 32972 Calle Perfecto, San Juan Capistrano, California 92675 Telephone(714) 489-7000/FAX 240-6241 5 7 CAPISTRANO% urarwn uwao�wmrcr f July 31, 1996 BOARD OF TRUSTEES SHEILA J.BENECKE President William M. Huber MARLENE M.DRAPER Director of Engineering & Building Vice President City of San Juan Capistrano PETER J. 32400 Paseo Adelanto ESPINOSA,Ed.D. San Juan Capistrano, CA 92675 Clerk DORSEY BRAUSE,Ph.D. Subject: Declaration of Covenants, Conditions and Member Restrictions for San Joaquin Hills Transportation PAUL B.HASEMAN Corridor Soundwal 1 Member CRYSTAL Dear Mr. Huber: KOCHENDORFER Member At their meeting of June 24, 1996, the Board of Trustees MILDRED DALEY approved the Declaration of Covenants, Conditions and PAGELOW, Ph.D. Restrictions (CC&Rs) between the District and the City relating Member to the San Joaquin Hills Transportation Corridor Soundwall . SUPERINTENDENT JAMES A.FLEMING,D.P.A. I have enclosed two signed agreements. Upon obtaining the required signature from your City official , please forward a DIVISION OF signed original to my office. ADMINISTRATION TERRI E.LUNINE,J.D. Thank you for your assistance to this matter. If you have any Deputy Superintendent questions, please feel free to contact me at 489-7293. CARLEEN WING CHANDLER Associate Superintendent, Business/Fiscal Services DANIEL J.CRAWFORI) Assistant Superintendent, a Dixon, Director Operational Services Maintenance and Operations DAVID A.DOOMEY Assistant Superintendent, JD:yc Facilities Planning WILMA J.HARVEY Enclosures Executive Director, Personnel Services Stscty:wp.c:CC&RSanJ.Itr Serving the Southern California communities of Aliso Viejo•Coto de Caza•Dana Point•Laguna Niguel•Mission Viejo•Rancho Santa Margarita•San Clemente•San Juan Capistrano / MEMBERS 0THE CRU CITY COL COLIENE CAMPBELL WYA7T NMT �✓�i R0.10I1III GILJONES unnmG 1961 OMOLYN NASH 1776 DAVID SWEROUN • • CITY MANAGER GEORGE SCARBOROUGH August 5, 1996 Mr. Joe Dixon, Director Maintenance and Operations Capistrano Unified School District 32972 Calle Perfecto San Juan Capistrano, California 92675 Re: Declaration of Covenants. Conditions and Restrictions for San Joaquin Hills Hills Transportation Corridor SoundwallCorridor Soundwall Dear Mr. Dixon: The Declaration of Covenants, Conditions and Restrictions between the District and the City relating to the San Joaquin Hills Transportation Corridor Soundwall has been signed by Mayor Hart and, as requested, a copy is enclosed for your files. Please feel free to contact William Huber, Engineering and Building Director, at 443-6336 is you need any additional information. Very truly yours, Cheryl Johnson City Clerk Enclosure cc: Engineering and Building Director 32400 PASEO ADELANTO. SAN JUAN CAPISTRANO, CALIFORNIA 92675 0 (714) 493.1171