15-0310_TNHC SAN JUAN, LLC_Soils Subsidence Remediation Program Agreementrecording REQUESTED BY:
City of San Juan Capistrano
WHEN RECORDED MAIL TO:
City of San Juan Capistrano
Attn: City Clerk
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Recorded in Official Records, Orange County
Hugh Nguyen, Clerk -Recorder
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SPACE ABOVE THIS LINE FOR RECORDER'S USE ONLY,
(EXEMPT FROM RECORDER'S FEE PURSUANT TO GOVERNMENT CODE SECTION 273831
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AGREEMENT ESTABLISHING �(
SOILS SUBSIDENCE REMEDIATION PROGRAM
THIS AGREEMENT ESTABLISHING SOILS SUBSIDENCE REMEDIATION
PROGRAM ("Agreement") is entered into as of M,+g4y lo , 2015
("Effective Date"), by and among TNHC SAN JUAN LLC, a Delaware
limited liability company ("Developer"), Oliva Maintenance
Corporation, a California nonprofit mutual benefit corporation
("Association") and the CITY OF SAN JUAN CAPISTRANO ("City"),
(Developer, Association and the City are each a "Party" and
collectively, the "Parties"), and pertains to that certain real
property more particularly described on Exhibit "A" attached hereto
and incorporated herein by this reference ("Property").
RECITALS
This Agreement is made with reference to the following facts:
A. Developer is in the process of developing the Property as
a common interest development, more particularly described in
Section 4175 of the California Civil Code as a "planned devel-
opment" (hereinafter referred to as the "Project"), consisting of
single-family detached homes, landscaped areas and other improve-
ments, in the City of San Juan Capistrano, County of Orange, State
of California. References in this Agreement to "Lots" or
"residential Lots" or "individually owned Lots" shall mean and
refer to a Lot for residential purposes described and or depicted
on a final map for the Property, and defined in the Declaration.
References to "Common Area" or "Common Area lots or parcels" in
this Agreement shall mean and refer to real property designated
"Common Area" or "Association Maintenance Areas" in the Declaration
defined below.
-22558.FCM 030315
i
B. On September 15, 1987, the City Council ("Council") of
the City passed, approved and adopted Ordinance No. 605 ("Original
Ordinance"), requiring that certain residential development in the
City include a Soils Subsidence Remediation Program. On November
15, 2002, the Council passed, approved and adopted Ordinance No.
869 ("Amended Ordinance"), amending Title 9 of the San Juan
Capistrano Municipal Code to add Section 9-3.545, entitled "Soils
Subsidence Remediation Program" and deleting Title 8, Chapter 10 of
the San Juan Capistrano Municipal Code as established by the
Original Ordinance.
C. The City approved Tentative Tract Map No. 17655 (e.g.,
Final Tract Map 17655) and all applicable conditions of approvals
associated with such map, i.e., City Council Resolution No. 14-07-
08-1.
D. The Association is a California nonprofit mutual benefit
corporation which will own the Common Area within the Property and
will serve as the homeowners' association for the residents of the
Property.
E. In compliance with Title 9, Section 9-3.545 of the San
Juan Capistrano Municipal Code, Developer is required to establish
and the Association is required to operate a Soils Subsidence
Remediation Program. The City also requires the Developer and the
Association to enter into this Agreement. This Agreement shall set
forth the terms for the implementation of a Soils Subsidence
Remediation Program ("Soils Subsidence Remediation Program") with
respect to the Property.
F. In addition, the Property will be subject to the terms of
that certain Declaration of Covenants, Conditions, Restrictions and
Reservation of Easements for Oliva recorded substantially
concurrently herewith ("Declaration").
G. The Parties hereto desire to enter into this Agreement as
it relates to the Soils Subsidence Remediation Program only and as
it relates solely to the Property, to, among other things, more
clearly set forth the rights and obligations of the Parties with
respect to the Soils Subsidence Remediation Program.
H. By entering into and recording this Agreement, Developer
satisfies in full with respect to the Property (i) all conditions
of approval relating to the Soils Subsidence Remediation Program,
(ii) all requirements of the Amended Ordinance, and (iii) all
conditions and requirements of the City in any way relating to any
soils subsidence remediation programs at any time implemented by
the City.
.-22558.FCM 030315 2
AGREEMENT
1. Definitions.
Defined terms whose initial letters are capitalized
herein shall have the meanings given to such terms as set forth in
this Agreement, including on Exhibit "B" attached hereto (if not
already defined in the text of this Agreement or the Declaration).
2. Soils Subsidence Remediation Program.
2.1 Soils Subsidence Remediation Program and Term.
Developer is required to impose on the Property a Soils Subsidence
Remediation Program. This Agreement sets forth the above -referenced
Soils Subsidence Remediation Program as it relates to the Property.
2.2 Developer Repair Period. Pursuant to Municipal Code
Section 9-3.545 c(1)C, Developer shall be responsible for making
all "Covered Repairs" necessitated by Soils Subsidences (as defined
in Exhibit "B") at its sole expense during the "Developer Repair
Period," which commences on the date of completion of rough grading
of the entire site, and continues until the later of the third
anniversary of completion of rough grading, or the date of the last
close of escrow for the sale by Developer of a Lot in the Property.
Notwithstanding this foregoing, Developer shall have the right to
reduce or set off its payment obligation for any Covered Repair to
the extent the Covered Repair is caused by the negligence or
willful act of the City, the Association, members or the
Association, Owners of Lots in the Property, or guests and invitees
of Owners. In such event Developer shall have every remedy
available under this Agreement and applicable law to cause the
City, the Association, or the responsible Owner (as applicable) or
individual to contribute to the actual costs of making the Covered
Repair, to the extent the damage is caused by the City, Association
or the responsible Owner, as applicable. If, during the Developer
Repair Period, the Developer fails to make Covered Repairs as
provided herein, then the City shall have the remedies provided in
Section 6.3 below (subject to notice and hearing and dispute
resolution processes described in Section 6), including the right
to draw upon the Developer Repair Period Security to pay the actual
costs of making Covered Repairs.
2.3 Long -Term Covered Repairs; Administration After
Developer Repair Period. Upon the expiration of the Developer
Repair Period and continuing through the Soils Subsidence
Remediation Period, the Association shall assume and perform all
its obligations under this Agreement, and the Developer shall have
no further obligations under this Agreement. In addition:
-22558.PCM 030315 3
(a) Covered Repairs necessitated by Soils
Subsidences occurring between the expiration of the Developer
Repair Period and the end of the Soils Subsidence Remediation
Period are "Long -Term Covered Repairs," the actual cost of which
shall be paid from the Surficial Soils Subsidence Fund (defined in
Section 2.4) to the extent funds are available; and
(b) As of the date of this Agreement, the City is
considering the formation of a Geologic Hazard Assessment District
("GHAD") for the Property, which, if formed, will have
responsibility for performing or causing the performance of such
Long -Term Covered Repairs. If the GHAD is formed, it shall, in
accordance with Municipal Code Section 9-3.545(c)(1)(A), be
activated on the first Long -Term Covered Repair, and the GHAD's
actual costs incurred in making such Long -Term Covered Repairs
shall be paid from the Surficial Soils Subsidence Fund.
2.4 Surficial Soils Subsidence Fund. No later than the
expiration of the Developer Repair Period, Developer shall
establish and fund a restricted reserve account in the name of the
Association ("Surficial Soils Subsidence Fund"). The Surficial
Soils Subsidence Fund shall be regulated, funded and used as
follows:
(a) In accordance with Section 9.3-545 of the San
Juan Capistrano Municipal Code, Developer shall deposit in the
Surficial Soils Subsidence Fund good funds in the amount of the
Project Fund Amount as defined in Exhibit "B," and the City shall
concurrently exonerate the Developer Repair Period Security
described in Section 6 below;
(b) Funds deposited in the Surficial Soils
Subsidence Fund shall be applied only to actual costs incurred in
making Long -Term Covered Repairs, and to the reasonable costs
incurred by the Association's Claims Adjuster (as defined in
Section 4.2) in reviewing claims for Long -Term Covered Repairs.
(c) The Surficial Soils Subsidence Fund shall be
put under the control of the Association to be managed and funded
by it as a restricted reserve fund;
(d) The Association shall maintain the balance of
the Surficial Soils Subsidence Fund at no less than the Project
Fund Amount. Subject to Section 7.1 below, the Association shall
levy Special Assessments against the Lots as necessary to maintain
the balance of Surficial Soils Subsidence Fund and to pay for Long -
Term Covered Repairs to the extent funds in the Surficial Soils
Subsidence Fund are insufficient to cover the actual costs thereof;
2.5 Applicability of Soils Subsidence Remediation
Program. The slopes which are subject to the Soils Subsidence
.-22558.FCM 030315 4
Remediation Program ("Covered Slopes") are shown on Exhibit "C"
attached hereto.
2.6 Reserved Rights. Developer and the Association
reserve the right to assert claims against any person or entity
responsible in whole or in part, by reason of negligence or willful
misconduct of the person or entity against whom the claim is
asserted, for displacement of soil on the slopes, whether covered
by the Soils Subsidence definition or not, including without
limitation, claims against one another. These reserved rights are
subject to all applicable statutes of limitation, including without
limitation, the ten (10) year limitations period provided by
Section 337.15 of the California Code of Civil Procedure and the
Right to Repair Law provided in Title 7, Section 895 to 945.5 of
the California Civil Code.
2.7 Inspection and Repair Rights. The Association and
GRAD (if formed) shall have licenses or nonexclusive easements to
enter onto Common Area and individual Lots to inspect and repair
(if necessary) all landscaping, irrigation and drainage devices,
and all other natural and artificial conditions which affect or
might affect the integrity of Covered Slopes.
2.8 Prior Review of Owner Improvements. Any proposed
alterations by Owners to the landscaping, grading, irrigation or
drainage installed on Covered Slopes on individually owned Lots
shall be subject to prior review and approval by the Association
and the City.
3. Claims Procedures and Adjustments During Developer Repair
Period. During the Developer Repair Period, the Soils Subsidence
Remediation Program shall be administered by the Developer.
4. Claims Procedures and Adiustments After Expiration of
Developer Repair Period. After expiration of the Developer Repair
Period and continuing through the Soils Subsidence Remediation
Period, the Soils Subsidence Remediation Program shall be
administered by the Association. The Association shall retain the
services of an independent Claims Adjuster (defined below) for all
Long -Term Covered Repairs in accordance with the requirements set
forth in Section 4.2 below. The Claims Adjuster shall be
responsible to adjust all claims for work which are claimed to be
within the coverage of this program. Claims asserted to be within
the coverage of this program will be processed on forms
substantially in the form attached hereto as Exhibit "D" and filed
with the Claims Adjuster, who will promptly adjust such claims
after obtaining an analysis on the scope and cost of completing all
necessary repairs. Funds in the Surf icial Soils Subsidence Fund
shall be applied to the cost of the Claims Adjuster's services.
-22558.FCM 030315 5
4.1 Notice of Claim. In the event any Party receives
notice of a claim that a Soils Subsidence has occurred, such Party
shall give all other Parties written notice of such claim setting
forth the name and address of the claimant and the nature and
extent of the claim to the extent such information is available.
4.2 Claims Adiuster. Within fifteen (15) days after
receipt of any such notice, the Association shall select an
independent and reputable claims adjusting service, geologist
and/or soils engineer (duly licensed to the extent required) with
experience in handling soils and Soils Subsidence matters (referred
to herein as a "Claims Adjuster").
(a) The Claims Adjuster shall be responsible for
promptly investigating, allocating responsibility for, and
adjusting all claims which allege that a Soils Subsidence has
occurred that is within the coverage of the Soils Subsidence
Remediation Program. After reasonably appropriate investigation and
analysis, the approved Claims Adjuster shall determine, among other
things:
(i) whether the claim is covered by the Soils
Subsidence Remediation Program and if so, then the scope and
estimated cost of the Covered Repairs,
(ii) who has responsibility under this Agreement for
actually performing the Covered Repairs or causing them to be
performed, and
(iii) who has under this Agreement the financial
responsibility for the requisite Covered Repairs.
(b) The Claims Adjuster shall complete its analysis as
soon as reasonably possible and shall thereupon issue a written
report to all of the Parties to this Agreement, which written
report shall set forth its findings on the issues referred to above
and such other matters as the Claims Adjuster deems appropriate.
(c) 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.
5. Grace Period. A Party shall only be deemed in default
under this Agreement if such Party fails to perform any of its
duties or obligations under this Agreement and such failure is not
.-22SS8.FCM 030315 6
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 5 shall specify the alleged failure in
detail.
6. Security for Developer's Obligations.
6.1 Developer Repair Period Security. Developer shall
guaranty and secure performance of its obligations under Section
2.2 above by one of the following alternatives (each, "Developer
Repair Period Security"), at the option of Developer with the
approval of the City:
(a) Corporate sureties in form reasonably approved by
the City Attorney with a face amount of the lesser of $2,902.80 or
$0.30 per square foot of the Covered Slopes, representing the fully
funded amount of the Surf icial Soils Subsidence Fund, together with
funds representing premiums for annual renewal of the security
during the three-year term of the Developer Repair Period; or
(b) A deposit of cash in the amount of $2, 902.80, either
with a responsible escrow agent or trust company, of money or
negotiable bonds of the kind approved for securing deposits of
public moneys; or
(c) An instrument of credit in the face amount of
$2,902.80, from one or more financial institutions subject to
regulation by the state or federal government, pledging that the
funds necessary to carry out the Soils Subsidence Remediation
Program during the Developer Repair Period are on deposit and
guaranteed for payment.
6.2 Release of Developer Repair Period Security. T h e
Developer Repair Period Security is subject to release pursuant to
the requirements and procedure set forth in Municipal Code Section
9-3.545c(2)D(ii).
6.3 Rights of City Upon Default. If Developer, during
the Developer Repair Period in accordance with Section 2.2 above,
or the Association, during the period subsequent to the Developer
Repair Period pursuant to the terms of Section 2.3 above, fails to
perform its obligations as required under those Sections, the City
Attorney shall provide written notice to Developer or the
Association (as applicable) of such failure and provide Developer
or the Association (as applicable) with an opportunity to cure in
accordance with Section 5, above. In the event Developer or the
-22558.FCM 030315 7
Association (as applicable) does not cure its failure of
performance within the cure period, then the Council may, by
resolution or other official Council action, after a noticed
public hearing, authorize the Public Works Director ("Director") to
draw upon the Developer Repair Period Security (in the case of a
Developer default during the Developer Repair Period) or the
Surficial Soils Subsidence Fund (in the case of an Association
default) to pay for the required work or otherwise cure the default
hereunder ("Authorized Monies"). The Surficial Soils Subsidence
Fund and the Developer Repair Period Security shall be vested such
that the Director can access such funds or security after such
Council action and submittal to dispute resolution (if requested by
a Party) pursuant to Section 6.5 below.
6.4 Public Hearing. Developer or the Association (as
applicable) will be entitled to reasonable notice of such public
hearing, will have the right to appear at the hearing where the
Council action is considered, and will be entitled to assert any
and all defenses which Developer or the Association (as applicable)
may possess as to such Council action including, without
limitation, a claim that the work proposed to be performed is not
within the scope of this Agreement or is not reasonably necessary.
6.5 Dispute Resolution. In the event of a dispute
between the City and Developer or the Association (as applicable)
involving any aspect of the penalty provided for herein including,
without limitation, the propriety of the Council action provided
for herein, such dispute shall be resolved by a judicial reference
pursuant to Section 8 below.
7. Special Assessments to Replenish the Surficial Soils
Subsidence Fund. Following the expiration of the Developer Repair
Period and the concurrent initial funding by Developer of the
Surficial Soils Subsidence Fund, the Association shall
automatically assume responsibility for administration of the Soils
Subsidence Remediation Program and the Surficial Soils Subsidence
Fund. The Association's obligations include the ongoing obligation
throughout the remainder of the Soils Subsidence Remediation
Period to assess the Lots and Owners in the Property as necessary
to maintain at least the Project Fund Amount in the Surficial Soils
Subsidence Fund. Notwithstanding anything in this Agreement to
the contrary, the Association shall be under no obligation to
impose any special assessment to pay for a Long -Term Covered Repair
except in accordance with provisions in the Declaration or
applicable section of the California Civil Code statutes.
7.1 Replenishment Following Long -Term Covered Repairs.
If payments for Long -Term Covered Repairs cause the balance in the
Surficial Soils Subsidence Fund to fall below the Project Fund
Amount described in Exhibit "B," then, within a reasonable period
determined by the Board in exercise of its business judgment and
with the consent of the City (all subject to the provisions of the
.-22558.FCM 030315 8
Declaration and California Civil Code Section 5600 et seq. and
successor statutes), the Association shall restore the total amount
in the Association's Surficial Soils Subsidence Fund to the Project
Fund Amount by assessing the Owners and their Lots.
7.2 Special Assessment to Make Lona -Term Covered
Repairs. In the event a Long -Term Covered Repair is determined by
the Claims Adjuster (described below) to be necessary, but funds
available in the Surficial Soils Subsidence Fund are insufficient
to cover the cost of such Long -Term Covered Repair, then the
Association shall specially assess the Owners at a rate sufficient
to cover the cost of such Long -Term Covered Repair within a
reasonable period determined by the Board in exercise of its
business judgment and with the consent of the City (all subject to
the provisions of the Declaration and California Civil Code Section
5600 et seq. and successor statutes). In the alternative, the
Association's Board may, in the exercise of its business judgment
and with the consent of the City, elect to defer such Long -Term
Covered Repair to the extent necessary to first accumulate within
a reasonable period of time (determined by the Board in exercise of
its business judgment and subject to the provisions of the
Declaration and California Civil Code Section 5600 et seq. and
successor statutes) sufficient funds to cover the costs thereof and
then to replenish the balance of the Surficial Soils Subsidence
Fund to at least the Project Fund Amount.
7.3 Cessation of Special Assessments when Proiect Fund
Amount Reached. Except in the event that the estimated cost of
Long -Term Covered Repairs exceed the Project Fund Amount, the
Association may cease levying and collecting special assessments
when the total balance of the Association's Surficial Soils
Subsidence Fund reaches the Project Fund Amount.
7.4 Responsibility of the Association and its Board of
Directors. The Association and its Board of Directors shall be
responsible for establishing and maintaining the Association's
Surficial Soils Subsidence Fund as herein provided, and for
levying and using best efforts to collect special assessments to
restore the balance of the Surficial Soils Subsidence Fund as
herein provided.
S. Dispute Resolution. Any dispute arising out of this
Agreement, but excluding any construction defect claims or right
to repair claims made under Sections 895 to 945.5 of the
California Civil Code, shall be resolved in accordance with the
article in the Declaration entitled "Dispute Resolution."
9. Miscellaneous.
9.1 Additional Limitations on Soils Subsidence
Remediation Program. Nothing to the contrary in this Agreement
withstanding, it is agreed that:
-22558.FCM 030315 9
(a) The Soils Subsidence Remediation Program provided
herein expressly excludes Soils Subsidence or any other soils or
earth movement or failure of slopes, regardless of cause, not
expressly referred to herein, and any and all resulting damage,
whether arising out of covered Soils Subsidence or not.
(b) In no event will performance of repair work by any
person or entity or any other circumstances extend the Developer
Repair Period provided herein.
9.2 Reservations of License and Right to Enter.
(a) There is hereby reserved for the benefit of
Developer and its successors, and the Association, and their
respective contractors and agents, a license and right to enter
onto the Common Areas and individually -owned Lots within the
Property so that Developer or its successors and the Association
and their respective contractors and agents may (i) inspect all
landscaping, irrigation and drainage devices, and all other natural
and artificial conditions which affect or might affect the
integrity of the Covered Slopes, and (ii) perform the duties of
Developer (during the Developer Repair Period) and the Association
(after the Developer Repair Period) to the full extent provided for
herein.
(b) Appropriate provisions in the grant deeds will grant
the Developer and the Association and their respective contractors
and agents a license and right to enter onto the Common Areas and
individually -owned Lots of the Property so that the Developer, the
Association and their respective contractors and agents may
inspect, maintain and repair the Covered Slopes to the full extent
provided for herein.
9.3 Review and Approval by Association. Any proposed
alterations by homeowners or any other person or entity to the
landscaping, grading, irrigation or drainage on the residential
Lots or Common Areas will be subject to review and approval by the
Board of the Association and/or by its Architectural Review
Committee.
9.4 Reference in Deeds. The grant deeds for the residential
Lots will reference this Agreement and the Soils Subsidence
Remediation Program provided herein. The provisions of this
Agreement constitute covenants running with the land and an
equitable servitude as to the real property referenced herein.
9.5 Collection and Reporting. The Board of the Association
will be responsible for the imposition and collection of special
assessments to replenish the Surficial Soils Subsidence Fund, and
for accounting for such special 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 during the
.-22558.FCM 030315 10
reporting period, as well as the balance in the Association's
Surficial Soils Subsidence Fund as of the date of the report. Such
reports will be made on or before January 31 and July 31 of each
year. The Boards will also provide to Developer at its request, and
to the City at the City's request, any further information,
documentation and cooperation as is reasonably necessary to
effectuate the purposes of this Agreement.
9.6 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.
9.7 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.
9.8 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.
9.9 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.
9.10 Binding Upon Successors. This Agreement is binding upon
and shall inure to the benefit of the Parties hereto, their
respective successors and assigns.
(a) This Agreement is binding upon Developer's
successors in interest or assignees as to the Property, and any or
all of them.
(b) Effective upon the sale or other conveyance of the
Property or any portion thereof in bulk, Developer will be relieved
of its obligations under this Agreement as to the real property so
sold or conveyed, to the extent that such obligations are assumed
in writing by Developer's successors in interest or assignees,
including without limitation the obligation to provide security for
the Developer Repair Period herein. Upon the City's receipt of
reasonably adequate substitute security from any assuming Party,
the Developer's Security or the appropriate pro rata portion
.-22558.PCM 030315 11
thereof shall be appropriately released and exonerated to Developer
by the City.
9.11 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.
9.12 Counterparts. This Agreement may be executed in
counterparts, and when each Party has signed and delivered to the
other at least one such counterpart, each counterpart shall be
deemed an original, and when taken together with the other signed
counterparts, shall constitute one agreement, which shall be
binding upon and effective as to all Parties.
9.13 Severability and No Waiver. The invalidity or
unenforceability of any provision of this Agreement shall not
invalidate or render unenforceable any of the other provisions of
this Agreement. No waiver of any provision of this Agreement shall
constitute a waiver of any other provision, nor shall any such
waiver constitute a continuing waiver unless otherwise agreed in
writing.
9.14 Termination. Unless otherwise agreed among the
Parties, this Agreement shall automatically terminate upon
expiration of the Soils Subsidence Remediation Period, at which
time the obligations on the part of the Association (or its
successors in interest or assignees) will automatically terminate,
and any unused funds remaining in the Surficial Soils Subsidence
Fund shall be applied to such purposes as the Association deems
necessary or desirable in the business judgment of its Board. This
Agreement shall not be deemed terminated as provided in this
Section 9.14 as to obligations and liabilities arising because of
Slope Subsidence occurring prior to the expiration of the Soils
Subsidence Remediation Period so long as a good faith written claim
with respect to such Slope Subsidence has been received by the
Parties prior to the expiration of the Soils Subsidence Remediation
Period.
9.15 Notices. Any notice which either Party may desire to
give to the other Party must be in writing and may be given by
personal delivery, by mailing the same by registered or certified
mail, return receipt requested, postage prepaid, or by Federal
Express or other reputable overnight delivery service, or by
facsimile 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
-22558.FCM 030315 12
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 facsimile
or other reliable electronic type mail system.
To Developer:
TNHC SAN JUAN LLC
c/o The New Home Company
95 Enterprise, Suite 325
Aliso Viejo, CA 92656
Attention: David J. Mello, Jr., Senior Project Manager
Copy To:
Gallagher & Moore
2 Park Plaza, Suite 680
Irvine, CA 92614
Attention: Fred Moore
To the City:
The City of San Juan Capistrano 32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Attn: Public Works Director
Facsimile: (949) 493-1251
To Association:
Oliva Maintenance Corporation
Copy To:
The City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Attn: City Attorney
.-22558.FCM 030315 13
IN WITNESS WHEREOF, this Agreement was executed on the date first
above written.
City:
The City
ofSan Ju/an� Capistrano
Name: re-� Veeue, UaIC)
Attest '
BY: MiI V VAN
Developer
TNHC SAN JUAN LLC, a Delaware limited liability company
By: The New Home Company Southern
California LLC, a Delaware
limited liability company
Its: Manager
BY:
Name: Fom IZraDw:TL
Title: Authorized Signatory
Association:
Oliva Maintenance Corporation
a California nonprofit mutual
benefit corporation
By:
Name: D,+.)Lr J. M�4o Sze.
Title: /',c�ies✓I
By -,
�Name "rte S� w�
Titl 1,, LMs 1.-�oe9 woad
.-32550.PCM 030315 14
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 March 24, 2015, before me, Maria Morris, City Clerk, personally appeared
Derek Reeve, Mayor, who proved to me on the basis of satisfactory evidence to the be 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, and that by his/her/there signature on the
instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.
1 certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
(SEAL)
OPTIONAL
Capacity Claimed by Signers Description of Attached Document
Title or Type of Document
Mayor
Title
Signer is Representing
City of San Juan Capistrano
Soils Subsidence Agreement- TR 17655
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document, to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA )
} ss.
COUNTY OF ORANGE )
On 0 2015, before me, &je4,Da/11? UQ%G/ ,A10 b��L
Name and Titlp of Officer
personally appeared 70-m lemLOI& / *r ,
who proved to me on the basis of satisfactory eviden a to b4 -the
person� V j whose name(A are subscribed to the within instrument and
acknowledged to me that he/sp(e/tt6y executed the same in
his/h�&/the,,d.'r authorized capacity(i/s) , and that by his/hdr/thlir
signature( on the instrument, the persons or the entities upon
behalf of which the person �K) acted executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the
State of California that the foregoing paragraph is true and
correct.
-------------
WITNESS my hand and official seal. DULCE DANIELLE BARKER
Commission # 2099918
Z Notary Public • Calllomia D
Z Orange County
Mv Comm. Expires Feb 12 2019+
Signature of Notary Public
[SEAL]
-22558.FCM 030315 16
AMFIAO 3JJ31V.?,q DAN;
V I it ,SI del avlox j Jfllno�
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document, to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA )
) as.
COUNTY OF ORANGE )
On Nwck /0 , 2015, beforeme,l fi!ex oailCiiGBWJJ4- MO?knl/AL G
Ni�Jand Title of Officer
De a
personally appeared Jia✓id TMeIlvJr. /',r;S 6t;6 ,
who proved to me on the basis of satisfactory evidence to be the
person(/) whose name( are subscribed to the within instrument and
acknowledged to me that he/sjte/tp{ey executed the same in
his/hp(r/tWir authorized capacity(i/s), and that by his/V.,r/thgerr
signature( on the instrument, the persons or the entities upon
behalf of which the person(V9 acted executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the
State of California that the foregoing paragraph is true and
correct.
WITNESS my hand and official seal.
.,r,.rs DULCE DANIELLE BARKER
4(4 Nommiselon • YD➢B91D [
otary Public - California
Countymm..Declines
�1J CoIrp Feb 12 1 2019
Signature f Notary Public
(SEAL]
-zzsse.ew moats 16
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�.
Slf X911}6:: :1o�air+� �rtLloY
t; �:,,:
P.6u" St del zet 3 .+nmol �A1
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document, to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA )
) ss.
COUNTY OF ORANGE )
On 2 015, before me , Nlez Dahl/ 1& 4Q, M-, Alo&nd,
Name and Title of Officer
personally appeared 0061 A05010diI)Wd! , llCe
who proved to me on the Cbasis of satisfa tory evidence to be the
person () whose name () are subscribed to the within instrument and
acknowledged to me that he/s)r%/tl6y executed the same in
his/hA/th?' r authorized capacity(iAs) , and that by his/Yir/tit
signature (Aon the instrument, the persons or the entities dpon
behalf of which the person () acted executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the
State of California that the foregoing paragraph is true and
correct.
WITNESS my hand and official seal.
OULCE OMIIELLE BARKER
Comedaalon • 2099918
Notary Public - California D
Orange County
Mv Comm. EjjM.Feb 12 2019
Signature of Notary Public
(SEAL)
.-22558.FCM 030315 17
R3)'I,A8 3IJ31HAO I..)J'%)O
EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
The Property is more particularly described as that certain real
property located in the City of San Juan Capistrano, County of
Orange, State of California, more generally described as:
Tract No. 17655, in the City of San Juan Capistrano,
State of California, as per map recorded in Book ,
Pages through , inclusive, of Miscellaneous
Maps, in the Office of the County Recorder of said
County.
-22558.FCM 030315 18
EXHIBIT "B"
DEFINITIONS
The defined terms set forth below shall have the definitions
given to them herein:
"Amended Ordinance" shall have the meaning given to such term
in Paragraph B of the Recital to the Agreement.
"Amending Resolution" shall have the definition given to such
term in Paragraph C of the Recitals to the Agreement.
"Association" shall mean Oliva Maintenance Corporation, a
California nonprofit mutual benefit corporation.
"Authorized Monies" shall have the meaning given to it in
Section 6.3 of the Agreement. "Board" shall mean the Board of
Directors of the Association.
"City" means the City of San Juan Capistrano, California.
"Claims Adjuster" shall have the meaning given to such term in
Section 4.2 of the Agreement.
"Common Area" shall have the meaning given it in Preamble
Paragraph A.
"Council" shall have the meaning given to it in Paragraph "B"
of Recitals of the Agreement.
"Covered Repairs" shall mean repair of damage to Lots,
structures, Common Area or public/private improvements necessitated
by Soils Subsidences.
"Covered Slopes" means certain slopes described in Section 2.5
of the Agreement and shown on Exhibit "C" attached hereto.
"Declaration" shall have the meaning given to it in Paragraph
"E" of Recitals of the Agreement.
"Developer" means TNHC SAN JUAN LLC, a Delaware limited
liability company and its successors (as described in Section
9.10).
"Developer Repair Period" shall have the meaning given it in
Section 2.2.
"Developer Repair Period Security" shall have the meaning
given it in Section 6.1.
-22558.FCM 030315 19
"Director" shall have the meaning given to it in Section 6.3
of the Agreement.
"Effective Date" is defined in the first paragraph of this
Agreement.
"Geologic Hazard Assessment District" or "GRAD" has the
meaning given it in Section 2.3(b).
"Long -Term Covered Repair" shall have the meaning given it in
Section 2.3(a).
"Lot" or "residential Lot" shall have the meaning given it in
Preamble Paragraph A.
"Project Fund Amount" means $2,177.10, which is 75% of the
fully -funded Surficial Soils Subsidence Fund balance.
"Property" means that certain real property more particularly
described on Exhibit "A" attached hereto.
"Soils Subsidence" is defined in San Juan Capistrano Municipal
Code Section 9.3- 545(c) (2) (A) as a catastrophic displacement of
a Covered Slope at a depth up to three feet with a vertical
movement of one foot or more, regardless of cause. Soils Subsidence
does not include surface cracking and fissures, including
desiccation cracks, or erosion (defined as the wearing away of
surface of the slope, as opposed to movement of the slope,
resulting from the force of water, wind, persons, or vehicles
moving over the surface, unless erosion ultimately results in
displacement). Surficial damage shall be considered catastrophic
if due to the extent of movement, funds in the Surficial Soils
Subsidence Fund are not sufficient to repair the damage.
"Soils Subsidence Remediation Program" shall have the meaning
given to it in Paragraph C of the Recitals.
"Soils Subsidence Remediation Period" means the period of time
commencing on the Effective Date and ending on the 10th year
thereafter.
"Surficial Soils Subsidence Fund" is defined in Section 2.4 of
this Agreement. The fully -funded balance of the Surficial Soils
Subsidence Fund is $2,902.80, which is attributable to 9,676 square
feet of Covered Slopes at the City -determined reserve amount of
$0.30 per square foot of Covered Slopes.
. 22558.FCM 030315 20
Exhibit C
HOA MAINTAINED SLOPES
& SLOPES GREATER THAN 5' IN HEIGHT
TRACT 17655
TRS 19
LOTS F9
55
LOT�Il TR 16746'_ ------- �/ \
(0T513J1 TR 16146
LOTS 233U
LEGEND
® WT F7M 9,676 Sa 9.
dam
THE DEPICTIONS HEREON ARE FOR ILLUSRUTNE
PURPOSES ONLY AND ME AS -BUILT GONORION
BY DECLARANT SHALL Be CONMLUNG
EXHIBIT "D"
NOTICE OF CLAIM FOR LONG-TERM COVERED REPAIR
OLIVA
NOTICE OF CLAIM UNDER SOILS SUBSIDENCE
REMEDIATION PROGRAM
TO:
CLAIMS ADJUSTER
(Name)
(Address)
(City, ZIP)
FROM:
(Name)
(Address of Claim Property)
(Mailing Address if different
from above)
(Phone)
This Notice of Claim is made in accordance with the terms of
the Agreement Establishing Soils Subsidence Remediation Program
("Slope Agreement") governing the remediation of certain Covered
Slopes in the Oliva community in the City of San Juan Capistrano.
Owners are advised that the Soils Subsidence Remediation Program
applies only to "Covered Slopes" identified on Exhibit C to the
Slope Agreement. Claims for damage unrelated to Covered Slopes,
Claims otherwise found to be outside the coverage of the Slope
Agreement, and Claims for damage found to be caused by the Owner
through negligence or willful act will be rejected. Owner agrees to
cooperate with requests for entry made by the Claims Adjuster,
Developer and GHAD personnel (as applicable) in connection with the
investigation of this Claim and any and all remediation work that
may be ordered in connection therewith. Capitalized terms used in
this Notice of Claim are defined in the Slope Agreement, if not
otherwise defined herein.
The above-named Owner hereby requests the Claims Adjuster
to investigate, allocate responsibility for, and adjust
the following claim in connection with a "Soils
Subsidence," as defined in San Juan Capistrano Municipal
Code Section 9.3-545 (c) (2) (A) .
Description of Claim (attach extra pages, including
damage estimates, if necessary):
Location of Claimed Damage (attach extra pages or maps if
necessary):
.-2255$.FCM 030315 2 2
Owner Signatures:
Date:
Date:
Signature
Print Name
Signature
Print Name
NOTE: There are additional pages attached to this Notice of
Claim.
.-22558.FCM 030315 23