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::: COMMUNITY NEWS Text of draft Mutual Benefit Agreement
October 18, 2002 Dear Resident, Attached is the Draft Mutual Benefit Agreement (MBA) for your review and comment. Please remember that this document is a draft, and it has not yet been voted on by the Board of Directors. Several RMA Boards of Directors have devoted the better part of three years negotiating this Agreement with Murieta Holdings and the Pension Trust Fund of the Operating Engineers (PTF). It has been a long and difficult process and, as with any negotiated agreement, none of the parties to the agreement got everything they wanted. The Board feels that this is a “pretty good” Agreement; it’s not perfect, it doesn’t have everything the Board wanted, but it has a lot of those things. We are now at the point in the process where we would like community input. To that end, the Board will hold a special meeting on Tuesday, November 19, 2002 at 6:30 p.m. at the RMA Building to hear comments from the community. After reviewing the comments from the residents, the Board will schedule another meeting to vote on the MBA. Residents may attend that meeting or write letters to the Board with their comments. Copies of the Agreement may be obtained at the RMA office and it is posted on www.ranchomurieta.com and www.ranchomurieta.org. Thank you for taking the time to review this Agreement. Sincerely, Jack Copeland
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TABLE OF CONTENTS
ARTICLE
I DEFINITIONS 2 ARTICLE
II RANCHO MURIETA NORTH ASSOCIATION 7 ARTICLE
V OTHER DEVELOPMENT CONDITIONS 17 ARTICLE
VIII TRAILS; CONSTRUCTION ACCESS; UTILITES; MAINTENANCE ARTICLE
X NO ASSUMPTION OF PRIOR DEVELOPER LIABILITY 23 ARTICLE
XI RANCHO MURIETA ASSOCIATION’S REPRESENTATIONS AND COVENANTS
24 ARTICLE
XIII OTHER GRANT OF EASEMENTS 25
WHEN RECORDED
MAIL TO SPACE ABOVE THIS LINE FOR RECORDER’S USE MUTUAL BENEFIT AGREEMENT FOR RANCHO MURIETA MUTUAL BENEFIT
AGREEMENT This Mutual Benefit Agreement ("Mutual Benefit Agreement") is made as of this ____ day of ___________, 2002, between RANCHO MURIETA ASSOCIATION, a California nonprofit mutual benefit corporation ("Rancho Murieta Association"), and RANCHO NORTH PROPERTIES LLC, a California limited liability company ("Rancho North"), and PTF for Operating Engineers, LLC, a Delaware limited liability company ("PTF"). Rancho Murieta Association, Rancho North, and PTF are collectively referred to herein as the "parties." This Mutual Benefit Agreement is made with respect to the following facts. A. Rancho Murieta Association is an association, as defined in Civil Code Section 1351(a), created under and governed by the RMA Declaration (as defined in Section 1.34, below). B. Rancho North Properties LLC is the owner of all of the real property described in Exhibit "A", excepting the Park Sites (as defined in Section 1.18, below). The Park Sites that were within that real property were conveyed to Rancho Murieta Association on the day this Mutual Benefit Agreement was Recorded. Exclusive of the Park Sites, the property described in Exhibit "A" is referred to herein as the "Rancho North Property". C. PTF is the owner of all the real property located within Rancho Murieta more particularly described in Exhibit "B" (the "Golf Course Property"), which property is leased to Rancho Murieta Country Club for the purpose of operating golf courses and related facilities. D. Rancho Murieta Association currently owns the following facilities, hereafter referred to as the "Recreational Facilities," located in Rancho Murieta:
E. The Recreational Facilities are part of the Association Common Facilities (as defined in the RMA Declaration) of the Rancho Murieta Association. F. On the day this Mutual Benefit Agreement is Recorded, Rancho North and Rancho Murieta Association caused the Grant of Easements Agreement, attached hereto as Exhibit "D", to be Recorded in the Official Records of the County of Sacramento, California. G. Rancho North no longer possesses unilateral rights to annex the Rancho North Property to the Rancho Murieta Association pursuant to the RMA Declaration. Furthermore the plan of phased development contemplated by this Mutual Benefit Agreement (and the Exhibits attached hereto), the New Master Declaration and the other Governing Documents of the Rancho Murieta North Association do not contemplate annexation of the Rancho North Property to the Rancho Murieta Property at any time while the Rancho North Property is being made available for development by Rancho North and is being developed and marketed by Subdividers. Nevertheless, in order to facilitate and coordinate the development of all lands comprising Rancho Murieta as a part of a unified planned development consistent with the Rancho Murieta Planned Development Ordinance, the parties have entered into this Mutual Benefit Agreement. The parties believe this Mutual Benefit Agreement, and the covenants and equitable servitudes it imposes, provide substantial advantages and benefits to all parties, and fairly and equitably accommodates their different needs, with respect to Rancho North, its holding as an investment of land, and with respect to the others, the development, use, and enjoyment of all lands and improvements within the Rancho Murieta Planned Development Ordinance. H. It is not intended, nor will, the obligations of Rancho North Properties LLC constitute development activities. Rather, Rancho North Properties LLC is entering into this Agreement to gain the benefits outlined in Section 4.01(a) among the other benefits included in this Agreement and to further protect and enhance its investment in the Rancho North Property, based on the County of Sacramento plan that Rancho Murieta be one cohesive planned development community pursuant to the Rancho Murieta Planned Development Ordinance. It is Rancho North Properties LLC’s intent that any and all development activities be conducted by Subdividers who may acquire all or portions of the Rancho North Property currently owned by Rancho North Properties, LLC. NOW, THEREFORE, in consideration of the mutual promises set forth herein and for other good and valuable consideration, receipt of which is acknowledged, and expressly for the benefit of the parties to this Mutual Benefit Agreement and their respective successors in interest who acquire any portion of the real properties described herein or in any Exhibit attached hereto, the foregoing recitals being incorporated herein, the parties agree as follows: As used herein, the following terms shall have the following meanings: Section 1.01. "Basic Cable Service" means the minimum cable service or comparable programming that was provided to Members of the Rancho Murieta Association as a component of the Association’s Regular Assessment as of December 1, 2001. Basic Cable Service does not include purchased premium programs (premium channels), shopping channels, converter services, pay-for-view, and internet/broadband and telephone services. Section 1.02. "Basic Cable Service Expenses" means the actual out-of-pocket costs incurred by Rancho Murieta Association during each calendar year during the term of this Mutual Benefit Agreement that are required to provide Basic Cable Service to the Members of Rancho Murieta Association, including an equitable share of costs to maintain cable facilities and capital replacement reserves for those facilities that are owned, leased and maintained by Rancho Murieta Association to provide only Basic Cable Service (calculated in the same manner as members of Rancho Murieta Association are assessed for capital replacement reserves). Section 1.03. "Cable Service" means all cable and telephone services, if any, provided, from time to time, by Rancho Murieta Association to its members. Cable Service includes Basic Cable Service and any other services broadcast or transmitted over the Rancho Murieta Association cable system now existing or later contrived or implemented. Section 1.04. "Clementia Community Park" means the approximately 20 acre site shown on Exhibits F-1 and F-2 of the Park Development Agreements, copies of which exhibits are attached hereto as Exhibit "E". The Clementia Community Park is located within the Rancho North Property. Section 1.05. "Declaration" means any declaration, as defined in Civil Code section 1351(h), that is Recorded against any portion of Rancho Murieta, including, without limitation, the RMA Declaration, the New Master Declaration and any Supplemental Declaration Recorded in the chain of title to any portion of the Rancho North Property. Section 1.06. "District" means the Rancho Murieta Community Services District, a California special district formed pursuant to California Government Code §66100 et seq., and any successor governmental unit that succeeds to District’s authority and responsibilities. Section 1.07. "Gate Facilities" is defined in Section 3.01(a), below. "Gate Facilities Payment" shall be the amount that Rancho North has agreed to contribute to the Gate Facilities project pursuant to Section 3.01(b), below. Section 1.08. "Governing Documents" shall be as defined in California Civil Code § 1351. Section 1.09. "Grant of Easements Agreement" means the agreement, entitled "Grant of Easements Agreement" recorded on the same day as this Mutual Benefit Agreement is recorded and attached hereto as Exhibit "D". Section 1.10. "Improved Roads" means all roads and streets within Rancho Murieta that are shown on a Recorded Subdivision Map, whether now existing or hereafter constructed, that have been improved so that they are reasonably usable for their intended purpose (including, without limitation, all roads identified in the Grant of Easements Agreement, as amended from time to time) and all roads within the Golf Course Property. "Improved Roads" shall not include any roads that may be subsequently located within any gated community that may be subsequently developed in any portion of the Rancho North Property. Section 1.11. "Individual Contribution Amount" means that portion of the RMA Contribution allocable to each Lot in the Rancho North Property, all as more particularly provided in Section 4.04, below. Section 1.12. "Lot" means any parcel of real property designated by a number on any Subdivision Map for any portion of the Rancho North Property and intended for residential use and development, excluding any common area and any open space parcel that may be designated as a lot on a Subdivision Map. Section 1.13. "Lot Owners", "Owner" and "Owners" means any person, firm, trust, corporation or other legal entity that owns a fee simple interest in any Lot in the Rancho North Property. Lot Owners shall be members of the Rancho Murieta North Association and of any other Rancho North Association that is given jurisdiction over the Owner’s Lot pursuant to a Recorded Supplemental Declaration. Section 1.14. "Mutual Benefits Plans" is defined in the first paragraph of Section 3.01, below. Section 1.15. "New Master Declaration" means the Declaration that, pursuant to this Mutual Benefit Agreement, will be Recorded against all lands comprising the Rancho North Property, thereby imposing equitable servitudes on the Rancho North Property, while at the same time: (i) permitting the modification of those servitudes as applied to various Subdivision Phases (subject to the limitations described in Section 2.02, below); and (ii) permitting the future annexation of any other portion of Rancho Murieta to the Rancho North Property that is subsequently developed in accordance with the Rancho Murieta Planned Development Ordinance and annexed in the manner permitted by the Regulations of the California Department of Real Estate. The New Master Declaration shall provide for establishment of the Rancho Murieta North Association, and shall include the provisions set forth in Exhibit "F". In the event of any conflict between the New Master Declaration, as amended from time to time, and this Mutual Benefit Agreement (and its Exhibits), the terms of this Mutual Benefit Agreement shall prevail. Section 1.16. "Parks Access Easements" or, individually, "Park Access Easement" means the easements described in Section 7.01, below, and in Exhibit "C". Section 1.17. "Park Development Agreements" means (i) the Park Development Agreement Dated as of September 19, 1990 (recorded Nov. 8, 1990 at page 720) by and among Rancho Murieta Association and Winncrest Homes, Inc., F.N. Projects, Inc. and N.T. Hill, Inc. and Rancho Murieta Community Services District; (ii) the Park Development Agreement-Dated as of February 20, 1991 (recorded Feb. 21, 1991 at page 1274) by and among Rancho Murieta Association, RMPI, CBC Builders and SHF Acquisitions and (iii) the Park Development Agreement-Dated as of June 28th 1991 (recorded Nov. 25, 1991, at page 1295) by and among Rancho Murieta Association, the District and First Interstate Bank of California, a California corporation, as Corporate Co-Trustee for Pension Trust Fund for Operating Engineers. Section 1.18. "Park Sites" means the real property conveyed to District and from District to Rancho Murieta Association under the grant deeds recorded concurrently with the Recordation of this Mutual Benefit Agreement in the official records of Sacramento County, California, consisting of Calero Park (3.144± acres), Clementia Lakeside Park (9.474± acres), the Murieta South Remote Park (1.87± acres), and the Stonehouse Park site (26± acres). In addition, Rancho North conveyed Murieta Parkway Park Site (11.034± acres) to the District under a grant deed recorded concurrently with the Recordation of this Mutual Benefit Agreement in the official records of Sacramento County, California, without any limitation that such property become part of the Common Area of Rancho Murieta Association, thus facilitating the exchange of park sites contemplated by Section 9.01, below. Further, the Murieta South Park (7.57± acres) may become one of the Park Sites, as described in this Section 1.18. Rancho Murieta Association agrees to accept conveyance of the Murieta South Remote Park, subject to water quality basin and storm drain easements in favor of District, which drainage easements shall be maintained by the District. Section 1.19. "PTF" means and refers to the PTF for Operating Engineers, LLC, a Delaware limited liability company. Section 1.20. "Public Report" means any subdivision Public Report issued by the California Department of Real Estate pursuant to Business & Professions Code section 11010.2 which pertains to any portion of the Rancho North Property. Section 1.21. "Rancho Murieta" means all lands included within the Rancho Murieta Planned Development Ordinance, whether or not annexed to the Rancho North Property or to the Rancho Murieta Property. Section 1.22. "Rancho Murieta Association" means Rancho Murieta Association, a California nonprofit mutual benefit corporation, its successors and assigns. Rancho Murieta Association is the association with jurisdiction and authority within the Rancho Murieta Property pursuant to the RMA Declaration. Section 1.23. "Rancho Murieta North Association" means an association, as defined in Civil Code Section 1351(a), whose members will be comprised of all of the Lot Owners within the Rancho North Property and any subsequent real property that is annexed to the Rancho North Property and subjected to the jurisdiction of the Rancho Murieta North Association pursuant to the annexation provisions of the New Master Declaration. Section 1.24. "Rancho Murieta Planned Development Ordinance" means the ordinance adopted by the Sacramento County Board of Supervisors entitled "Rancho Murieta Planned Development Ordinance", which Ordinance is numbered for reference purposes as Ordinance No. 77-PD-10, as amended through the date of this Agreement. Section 1.25. "Rancho Murieta Property" shall mean all real property that is subject to the RMA Declaration, including any real property subsequently annexed to the RMA Declaration. The term "Rancho Murieta Property" does not include any real property that has not been annexed to the RMA Declaration and the jurisdiction of the Rancho Murieta Association, except Recreational Facilities, Park Sites, Parks Access Easements and the trail system described in the Park Development Agreements located in areas of Rancho Murieta that are not annexed to the Rancho Murieta Association. On the date of this Mutual Benefit Agreement, none of the Rancho North Property is part of the Rancho Murieta Property. Section 1.26. "Rancho North" means Rancho North Properties LLC, a California limited liability company, its successors and assigns. Section 1.27. "Rancho North Associations" is a collective term which means and refers to the Rancho Murieta North Association and any other association (as defined in Civil Code section 1351(a)) that is given jurisdiction within any Subdivision Phase(s) of the Rancho North Property pursuant to a Recorded Supplemental Declaration. Section 1.28. "Rancho North Property" means the real property described in Exhibit "A", excluding the Park Sites and other conveyances described in Section 1.18, above and Section 9.01, below, that were made concurrently with the recordation of this Mutual Benefit Agreement. "Rancho North Property" shall also include any other property not owned by Rancho North that subsequently becomes subject to the New Master Declaration, this Mutual Benefit Agreement and the Grant of Easements Agreement by annexation in accordance with Section 2.02, below. Section 1.29. "Recreational Facilities" is a term that is defined in Recital "D," above. The Recreational Facilities shall also include any additional facilities acquired by Rancho Murieta Association pursuant to Articles IX and X of this Mutual Benefit Agreement. Section 1.30. "Record", "Recorded", "Recording", and "Recordation" means the recording or recordation of any document in the Official Records of the Office of the Sacramento County Recorder, State of California. Section 1.31. "Resource Protection Area" means the property described in Section 9.02, below. Section 1.32. "Resource Protection Area Agreement " means the agreement between the County of Sacramento and Rancho Murieta Properties, Inc. dated December 27, 1978, which agreement was Recorded on October 25, 1979 in Book 79-10-25, Page 1092. Section 1.33. "RMA Contribution" means the total amount, calculated on an annual basis in accordance with Section 4.02, below, and periodically adjusted as required by subparagraph (c) of Section 4.02, that the Rancho Murieta North Association is obligated to remit to the Rancho Murieta Association pursuant to Article IV, below, and corresponding provisions of the New Master Declaration. Section 1.34. "RMA Declaration" means the Second Restated Declaration of Covenants, Conditions and Restrictions recorded on September 26, 1996 as Instrument No. 1996092661353 and re-recorded on February 10, 1998 as Instrument No. 199802100773, as amended by the First Amendment of Second Restated Declaration of Covenants, Conditions and Restrictions recorded on February 13, 1998 as Instrument No. 199802130883, and as the same may be further amended from time to time; provided, however, that in the event that any subsequent amendment of the RMA Declaration is in conflict with this Mutual Benefit Agreement, the terms of this Mutual Benefit Agreement shall prevail. Section 1.35. "RMA Regular Assessment" has the same meaning as set forth in Article IV, Section 2, of the RMA Declaration. Section 1.36. "Subdivider" means any person or entity that acquires any part of the Rancho North Property for purpose of development and resale for which a Department of Real Estate Public Report is required pursuant to Business & Professions Code §11010. For purposes of this Mutual Benefit Agreement, the term "Subdivider" also includes Rancho North if a Public Report is required for its development and sale of any portion of the Rancho North Property. Section 1.37. "Subdivision Map" means a final subdivision map for any portion of the Rancho North Property. Section 1.38. "Subdivision Phase" means (i) any portion of the Rancho North Property that is designated by Rancho North or any successor declarant to be a Subdivision Phase, which is intended to be conveyed to a Subdivider and then subdivided into Lots (with, in some instances, appurtenant common area parcels); or (ii) the real property included in any Public Report issued by the California Department of Real Estate. Section 1.39. "Supplemental Declaration" means any Declaration supplementing the New Master Declaration and affecting solely a particular Subdivision Phase or Phases of the Rancho North Property, all as more particularly described in Section 2.02, below. Section 1.40. "Tree Mitigation Areas" means those areas in Rancho Murieta that have been selected for tree mitigation purposes during the course of development of the Rancho North Property pursuant to an approved mitigation plan.
Section 2.01. Formation of Rancho Murieta North Association. Rancho North agrees to form the Rancho Murieta North Association as a California nonprofit mutual benefit corporation and to Record the New Master Declaration against the Rancho North Property prior to or coincident with the first transfer or conveyance of the initial Subdivision Phase to a Subdivider. The New Master Declaration shall include, among other provisions deemed necessary or appropriate by Rancho North, or its assignee or other declarant, in its sole discretion, the following:
Section 2.02 Authority For Recordation of Supplemental Declarations. Although all of the Rancho North Property will be encumbered by this Mutual Benefit Agreement and the New Master Declaration, the New Master Declaration will include provisions authorizing Supplemental Declarations to be Recorded with respect to Subdivision Phases. A Supplemental Declaration may modify or amend the equitable servitudes created by Recordation of the New Master Declaration, as applicable to lands within the Subdivision Phase to which the Supplemental Declaration pertains in order to address matters that are unique to the development plan for the Subdivision Phase to which the Supplemental Declaration pertains. For example (but not by way of limitation), Supplemental Declarations may provide different or additional property use restrictions, or create new Rancho North Associations with jurisdiction limited to Lots within the Subdivision Phase, or create a subordinate architectural review commmittee with jurisdiction over improvement projects within the Subdivision Phase (so long as any such committee’s project approval is in addition to approval by the committee formed pursuant to the provisions described in Section 2.01(c), above). However, under no circumstances shall a Supplemental Declaration (i) alter, delegate, or eliminate the obligations of Rancho Murieta North Association under Article IV, below, and any corresponding provisions of the New Master Declaration, or (ii) alter, amend or delete any of the provisions required by subparagraphs (c) and (d), above. Section 2.03 Authority for Future Annexations to the Rancho North Property. Real property other than Rancho North Property may be annexed to the Rancho Murieta North Association and the New Master Declaration, provided the property is within Rancho Murieta and the requirements for the annexation of property under the New Master Declaration and the Regulations of the California Department of Real Estate are satisfied. Section 3.01. Upgrade of North Rancho Murieta Gate and Lago Entrances.
Section 3.02. Release of Liability in Favor of Rancho North Regarding The Gate Facilities Project. Rancho North, its agents or representatives and their respective directors, members, officers and employees ("Rancho North Parties") shall not be liable for any claims, injury, defect, damage or loss ("Damages") suffered or claimed by anyone arising out of, related to, or as a consequence of, (i) any defect in the Mutual Benefit Plans or Gate Facilities, whether or not the Gate Facilities were constructed in accordance with the Mutual Benefit Plans, and (ii) the design, construction, operation, repair and maintenance of the Gate Facilities. Provided, however, Rancho North is not released from its obligation to pay, and shall be responsible for, mechanic’s liens recorded against Rancho Murieta Property or property of the District arising out of Rancho North’s construction of the Gate Facilities as required under Section 3.01, above. Rancho Murieta Association and District each agrees that it will bring no action or suit against Rancho North Parties with respect to the Damages. Upon completion of the Gate Facilities, Rancho North shall assign to Rancho Murieta Association and District jointly a non-exclusive interest in all of Rancho North’s existing and future claims (including claims under warranties) against any architect, engineer, and design professional involved in the preparation of the Mutual Benefit Plans and any contractor and sub-contractor involved in the construction of the Gate Facilities. Rancho Murieta Association and District agree to indemnify, protect, hold harmless and defend all Rancho North Parties from and against all Damages asserted against Rancho North Parties by any person or entity. Rancho North Parties are hereby released from all responsibility and liability to Rancho Murieta Association and District regarding the Damages. In that connection, Rancho Murieta Association and District, on behalf of themselves, their successors, assigns and successors-in-interest and such other persons and entities, waives the benefit of California Civil Code Section 1542, which provides as follows:
Section 3.03. Payment for Passive Entry System. Rancho Murieta Association, at its sole cost and expense, shall install a passive entry system for the north gate entrance to Rancho Murieta at Lago Drive and at the south gate entrance to Rancho Murieta no later than the completion of construction of the Gate Facilities. Section 3.04. Escuela Gate. Rancho North agrees to contribute to Rancho Murieta Association the lesser of (a) the actual cost of construction or (b) the sum of Seventy-Five Thousand Dollars ($75,000.00) for construction of a vehicle and pedestrian gate on Escuela Drive (the "Escuela Gate Facilities"). However, this contribution by Rancho North shall not be due or payable until both conditions (a) and (b), below, have occurred.
If condition (b) has not occurred within three (3) years from the date of the approval of the vesting tentative map for Murieta Hills, then Rancho North shall no longer have any obligation to make the contribution to Rancho Murieta Association for Gate Facilities on Escuela Drive, as set forth above. If and when conditions (a) and (b) have been satisfied, Rancho North shall tender its payment to Rancho Murieta Association within ten (10) business days. Rancho Murieta Association shall be solely responsible for construction of the Escuela Gate Facilities. If the County of Sacramento requires Stonehouse Road to be improved or any other improvements to be made solely as a result of the installation of a gate on Escuela Drive, Rancho Murieta Association shall be solely responsible for the cost and construction of those improvements. Rancho North and the Subdividers shall have no obligation to comply with any condition imposed by the County of Sacramento or any other governmental or quasi-governmental entity by reason of installation of the Escuela Gate Facilities, including, without limitation, any obligation to improve or pay for the improvement of Stonehouse Road.
Section 4.01. Contribution to the Rancho Murieta Association.
Section 4.02. Calculation, Commencement and Periodic Adjustment of the RMA Contribution.
Section 4.04. The Individual Contribution Amount.
Section 4.05. Estoppel Certificate. The Rancho Murieta North Association, or its appointed manager shall, on not less than thirty (30) days prior written request, execute, acknowledge and deliver to any Lot Owner, or any holder, insurer or guarantor of a first mortgage Recorded with respect to the Owner’s Lot, making such request, a statement in writing stating whether or not, to the knowledge of the Rancho Murieta North Association, the requesting Lot Owner is in default in the payment of the Owner’s Individual Contribution Amount allocable to his or her Lot; the amount of any Individual Contribution Amount paid by the Owner during the fiscal year the request is received; and the amount of any delinquent Individual Contribution Amount, interest, attorneys’ fees and other reasonable costs of collection (if any) on the Owner’s Lot. The Rancho Murieta North Association, or its designated manager, may charge the requesting party a reasonable fee to recover its actual costs in preparing the statement. Any estoppel certificate delivered pursuant to this Section may be relied upon by any prospective purchaser or first mortgagee of such Lot, but such reliance may not extend to any default involving the payment of Individual Contribution Amounts and associated interest, costs and expenses of which the party executing the certificate had no actual knowledge. If any holder, insurer or guarantor of a first mortgage Recorded with respect to the Owner’s Lot also wants an estoppel certificate from Rancho Murieta Association with respect to the status of payments of RMA Contributions by the Rancho Murieta North Association, Rancho Murieta Association agrees to provide such an estoppel certificate at a charge which shall not exceed the actual expense incurred by Rancho Murieta Association (as reasonably determined by that Association) to prepare and deliver the estoppel certificate to the requesting party. Section 4.06. Rancho Murieta North Association Audit Rights. The Rancho Murieta North Association shall be entitled, in its discretion and at its sole expense, to examine, inspect, audit, and copy the records of Rancho Murieta Association regarding any and all of the following: (i) items and expenses that are included in the Rancho Murieta Association’ s Regular Assessment for Cable Television Service, including Basic Cable Service and (ii) items and expenses that are required to be excluded from the Rancho Murieta Association’s Regular Assessment pursuant to section 4.02(a), above, for purposes of determining the RMA Contribution ("Audit"). Any review of records of the Rancho Murieta Association shall be conducted at the Rancho Murieta Association’s principal office during normal business hours. The Rancho Murieta North Association may conduct an Audit until six (6) months have expired following the end of the respective fiscal year. Unless the Rancho Murieta North Association takes written exception to any item or sum included within the RMA Contribution within six (6) months following completion of an Audit, the RMA Contribution for that fiscal year shall be considered as final and accepted by the Rancho Murieta North Association and the Rancho Murieta Association. If the Rancho Murieta North Association requests an Audit, that Association agrees diligently to pursue and complete (or to drop) any Audit once it has commenced, and the Rancho Murieta Association agrees it shall not unreasonably interfere with the execution of the Rancho Murieta North Association’s Audit rights. All fees and costs of any Audit conducted by Rancho Murieta North Association pursuant to this Section shall be borne exclusively by that Association. If, upon completion of any Audit, it is found that Rancho Murieta North Association is entitled to a credit for overpayment of the RMA Contribution, such sums shall be subtracted from future payments of the Rancho Murieta North Association’s RMA Contribution until the entire credit is recovered.
Section 5.01. Advance Funding for Park and Recreational Facilities. The Park Financing Plan fees (as defined in the Park Development Agreements) that are payable by Subdividers for the Lots within a Subdivision Phase of the Rancho North Property shall be payable upon Recordation of the final Subdivision Map for the Subdivision Phase. Rancho Murieta Association’s contribution for its share of the Park Financing Plan fees will be made thirty (30) days after the Park Financing Plan fee is paid by a Subdivider. Section 5.02. Conveyance of Cable Television Site and Provision of Cable Service to Rancho North Property. The Cable Television Agreement (as defined in Section 4.02(a), above) provides that fee simple title to the cable television site, as depicted in the Cable Television Agreement, shall be conveyed to Rancho Murieta Association when the parcel can be legally transferred. In order to complete the transfer, the lessor and lessee must pay certain closing costs as set forth in the lease. The cable television site is part of Rancho North Property. Rancho North agrees that the option to acquire the cable television site remains in full force and effect in accordance with the terms of the Cable Television Agreement as modified by this Section 5.02. As part of any transfer of the cable television site to Rancho Murieta Association, the Elk Grove Unified School District bonds, the Improvement District No. 1 bonds and Community Facilities District No. 2 bonds that encumber the cable television site shall be reallocated to the remaining portion of the Subdivision Phase of which the cable television site is a part at the cost of Rancho North. In accordance with Sections 7 and 8 of the Cable Television Agreement, Rancho Murieta Association agrees to provide Basic Cable Service throughout the boundaries of Rancho North Property at the same rate charged to subscribers within Rancho Murieta Property. Rancho North may reserve an easement from the conveyance of the Cable Television Site for the installation of telecommunication system facilities and related improvements, including, without limitation, conduits, for the benefit of Rancho North and its successors (the Rancho Murieta North Association and its members). The Rancho Murieta Association will make reasonable efforts to accommodate Rancho North’s telecommunication system’s needs as applicable to this site. Section 5.03. Reconveyance of Option to Acquire Clementia Park. Rancho Murieta Association relinquishes and releases all of its right, title and interest to acquire the Clementia Community Park under the terms set forth in the Park Development Agreements. Section 5.04. Consent to Development. Rancho Murieta Association endorses and will support development of the Rancho North Property in a manner that is consistent with Exhibit "H". Except as provided in Article III, above, nothing in this Mutual Benefit Agreement shall be deemed to require construction of or expenditure of any costs for a second entrance to the north portion of Rancho Murieta along Stonehouse Road or at any other point in connection with the development of the Rancho North Property consistent with Exhibit "H".
Section 6.01. Maintenance Responsibilities. Rancho Murieta Association, at its cost, shall maintain all Recreational Facilities in good condition and repair and in accordance with the provisions of the Park Development Agreements, the RMA Declaration and this Mutual Benefit Agreement, subject to the delegation to the District by Rancho Murieta Association of the obligation to maintain the lakes and any related water facilities. Section 6.02. Open Space; Limited Uses. Except for any improvements constructed in accordance with the park matrix in the Park Development Agreements as such matrix exists on the day this Mutual Benefit Agreement is recorded, Recreational Facilities shall be preserved as open space and used for those service or recreational purposes originally planned by the original subdivider or subsequently installed by Rancho Murieta Association or by a subdivider of any phases of the Rancho Murieta Property in accordance with the provisions of the Park Development Agreements, the RMA Declaration and this Mutual Benefit Agreement. Section 6.03. Rancho North Owners’ Non-Exclusive Easements of Enjoyment. Lot Owners in the Rancho North Property (and their families, lessees and guests) shall have the same rights and easements as Rancho Murieta Association members (and their families, lessees and guests) to the use and enjoyment of the Recreational Facilities, which rights and easements shall be appurtenant to and shall pass with the title to each Lot in the Rancho North Property. Section 6.04. Application of Rancho Murieta Association Rules to Use of Recreational Facilities. The rules and regulations of the Rancho Murieta Association pertaining to access to or use of Recreational Facilities shall be applied uniformly to Rancho Murieta Association members and to Lot Owners in the Rancho North Property. Section 6.05. Other Recreational and Cultural Programs. Rancho Murieta Association agrees to make available to Lot Owners in the Rancho North Property (and their families, lessees and guests) on the same basis it makes available to its own members (and their families, lessees and guests) all recreational, cultural and civic programs and/or activities sponsored by Rancho Murieta Association. If access to or participation in such programs by members (and their families, lessees and guests) of Rancho Murieta Association requires payment of a fee in addition to the RMA Regular Assessment, the Rancho North Property Lot Owners and their families, lessees and guests shall be entitled to the same right of access and participation upon payment of the same fees. Such programs include, without limitation: (i) activities, events, programs and day care services that currently exist or are hereafter created; and (ii) Cable Services other than Basic Cable Service in accordance with Sections 7 and 8 of the 1989 Cable Television Agreement. Among other things, those sections require either the developers of subdivisions within any portion of the Service Area that is not within the Rancho Murieta Property (or homeowners associations within those Service Areas) to pay the cost of extending the physical cables and other equipment and facilities necessary to extend the Cable Service to portions of the Service Area outside of the Rancho Murieta Property.
Section 7.01. Grant of Temporary Park Access Easements. Rancho North grants to Rancho Murieta Association and its members (and their families, lessees and guests) and to the District and its agents and contractors easements of ingress and egress over and across the Parks Access Easements more particularly described in Exhibit "C" for vehicular and pedestrian access and movement among, within and between the Park Sites and Rancho Murieta Property. Rancho North also grants to Rancho Murieta Association and its respective service providers, agents, employees, contractors, delivery persons and invitees easements of ingress and egress over and across the Park Access Easements for vehicular and pedestrian access and movement among, within and between the Park Sites and Rancho Murieta Property for the purpose of improving and maintaining the Park Access Easements in accordance with this Mutual Benefit Agreement and improving and maintaining the Park Sites. No roadway has been constructed within the Park Access Easement serving the Murieta South Remote Park. Until reasonable alternative access to the Park Sites has been provided, (i) Rancho North agrees that Rancho Murieta Association, at its sole discretion and expense, may construct a graded and graveled roadway within the Park Access Easement serving the Murieta South Remote Park (upon obtaining the consent of any party other than Rancho North that is required prior to commencement of such construction), (ii) Rancho Murieta Association, at its sole discretion and expense, shall maintain all Parks Access Easements unless construction of reasonable alternative access to any Park Site interferes with the continuing use of a Park Access Easement and (iii) Rancho Murieta Association may improve the roadways within the Parks Access Easements, at its sole discretion and expense, but subject to the provisions of this Mutual Benefit Agreement and the Park Development Agreements (to the extent the Park Development Agreements are not inconsistent with this Mutual Benefit Agreement). Rancho North shall have no obligation to maintain or improve the Parks Access Easements. Rancho Murieta Association consents to the temporary interruption of its use of the Parks Access Easements caused by construction of reasonable alternative access to the Park Sites. Notwithstanding the foregoing provisions of this Section 7.01, road access to Clementia Swim Park shall be maintained without interruption due to such construction activities between May 1 and October 1. Such roadway access to the Clementia Swim Park may be subject to typical construction controls, such as flagmen temporarily halting traffic on the temporary roads, but reasonable use of the Clementia Swim Park and access over temporary roads shall not be blocked. Section 7.02. Maintenance of Temporary Park Access Roadways. The existing roadways within the Parks Access Easements are graded and graveled. Any roadway that is constructed, improved or maintained by Rancho Murieta Association within any Park Access Easement, as required or permitted in Section 7.01, above, shall be constructed, improved and maintained to the same condition as the roadways serving the Calero Park and Clementia Lakeside Park on the date of this Mutual Benefit Agreement. Rancho Murieta Association may grade and re-gravel all such roadways to provide a well maintained graveled surface, but shall not pave or permanently improve or oil seal the roadways. Rancho Murieta Association may add gravel and an environmentally protective dust control product not containing asphalt or petroleum or petroleum fractions, such as a resin modified emulsion ("Dust Control Product"). Rancho Murieta Association shall remove, at its sole cost, promptly following termination of its right to use the Park Access Easement any gravel or Dust Control Product added by Rancho Murieta Association. Section 7.03. Insurance; Indemnification. Rancho Murieta Association shall maintain insurance against claims from Rancho Murieta Association’s and its members use of the Park Access Easements in amounts, coverages and companies at least equivalent to the insurance amounts, coverages and companies covering the roadways in Rancho Murieta Property owned by Rancho Murieta Association. Rancho Murieta Association indemnifies and shall defend and hold Rancho North and their successors in interest, including, without limitation, any grantee and successor holder of an interest in the Rancho North Property, harmless from any losses, damages, expenses, liabilities, claims, mechanic’s liens, demands and causes of action (together with any reasonable legal fees and other expenses incurred by such parties) to the extent arising from or connected with use of the Parks Access Easements by Rancho Murieta Association or any person permitted by Rancho Murieta Association to use such easements. Section 7.04. No Further Restrictions. Rancho North, future Subdividers of any portion of the Rancho North Property and the Rancho Murieta North Association shall have no right to impose restrictions on the use of the Parks Access Easements and reasonable alternative access within the Rancho North Property that are inconsistent with the rights and easements granted under this Mutual Benefit Agreement to Rancho Murieta Association and the District pursuant to Section 7.01, above. Section 7.05. Termination of Parks Access Easements. Any Park Access Easement that is included within a Subdivision Phase shall automatically terminate after reasonable alternative access to the Park Site has been provided without necessity of further action on the part of any party to this Mutual Benefit Agreement. Without limiting the foregoing, the parties agree that "reasonable alternative access" shall conclusively be presumed to include any Improved Roads that provide access to the Park Sites. At the request of the Subdivider, Rancho Murieta Association shall quitclaim to the Subdivider and otherwise extinguish any rights under this Mutual Benefit Agreement to use any applicable Parks Access Easement for which an Improved Road to the Park Site has been established.
Section 8.01. Trails. To the extent such trails, walkways and paths have been established pursuant to the Park Development Agreements, Rancho North and Rancho Murieta Association mutually grant to each other, to the members of Rancho Murieta Association and of Rancho Murieta North Association and their respective families, lessees, guests, easements of ingress and egress over and across all pedestrian and bicycle trails, walkways and paths now existing or hereafter created within Rancho Murieta Property and Rancho North Property for bicycle and pedestrian access and movement among, within and between Rancho Murieta Property and Rancho North Property. Section 8.02. Temporary Construction Access. Any Subdivider of any part of the Rancho North Property that is constructing any dwelling, common area improvement or public improvement shall cause their contractors and their contractor’s subcontractors construction vehicles and construction equipment to use available roadways solely within Rancho North Property for access to and from construction, storage and yard sites whenever possible. If reasonable access is not available within the roadways of Rancho North Property, a Subdivider may permit their contractors and subcontractors to use roadways within Rancho Murieta Property to obtain access to and from construction, storage and yard sites provided the Subdivider pays a road mitigation fee to Rancho Murieta Association of $0.20 per square foot of living space including garage as established by the plans for the permitted dwelling units in the Subdivider’s Subdivision Phase, which fee shall be paid to Rancho Murieta Association at the time the permit is issued. The amount of the road mitigation fee imposed by this Section 8.02 shall be adjusted annually in an amount based on the ENR Construction Cost Index for the San Francisco Region. Prior to commencement of construction, the Subdivider shall pay for the cost of a road survey to determine the condition of the roads within the Rancho Murieta Property to be used for access. The Subdivider will also pay to periodically monitor those roads during construction. Rancho Murieta Association agrees that the road mitigation fee shall be full compensation to it for any deterioration or damage to its roads caused by or related to such use. Provided, however, the foregoing shall not be deemed to relieve any Subdivider or its contractors or subcontractors from liability for negligent or willful conduct or from any responsibility to Rancho Murieta Association for damages to the roads over and above the reasonable wear and tear caused by the use of the roads by the Subdivider or its agents, contractors and subcontractors. Use of the private roads within Rancho Murieta shall be subject, at all times, to observance by the vehicle operator of all published or posted traffic rules and regulations. Section 8.03. Underground Utilities. Rancho Murieta Association grants Subdividers and their agents and contractors the right to install underground improvements in the streets owned by Rancho Murieta Association. Any such installation shall be subject to the following conditions: (i) such work shall be coordinated with appropriate management and personnel of the Rancho Murieta Association; (ii) no installation or work within any portion of the Rancho Murieta Association Common Areas shall be permitted if the installation or work will adversely affect the development or the intended use and enjoyment of the affected Common Areas; and (iii) any damage to Rancho Murieta Association roads resulting from the installation or work shall be repaired and the roads or Common Area shall be reasonably restored to its pre-existing condition at the sole expense of the Subdivider. Any repair or restoration work shall be undertaken in compliance with Rancho Murieta Association’s published improvement standards dated 2001 and currently entitled "Rancho Murieta Association Permit Procedure, Fees and Specifications For Repair and Restoration of Street Surfaces and Facilities." Among other provisions, those improvement standards authorize and empower Rancho Murieta Association to collect a deposit from Subdividers to assure their compliance with the conditions stated in this Section 8.03.
Section 9.01. Exchange Park Site.
Section 9.03. Acceptance of Tree Mitigation Areas. Provided no fee or consideration is charged for such conveyance, Rancho Murieta Association agrees to accept one or more conveyances of the Tree Mitigation Areas that Rancho North or any Subdivider shall elect, at such person’s sole discretion, to convey to Rancho Murieta Association. Any Tree Mitigation Area shall be available for the sole use of Rancho North and the designees of Rancho North for tree mitigation purposes. Unless otherwise agreed in writing by Rancho Murieta Association, no Tree Mitigation Area shall be conveyed to Rancho Murieta Association until such area is a separate parcel under the Subdivision Map Act. Any conveyance of a Tree Mitigation Area shall be free of any assessments, including, but not limited to assessments for the Elk Grove School District Community Facilities District No. 1, for Rancho Murieta Community Services District Community Facilities District No. 1 (Mello-Roos Bonds) and for Rancho Murieta I.D. #1 (1915 Act Bonds), which bonds may be allocated to the remainder of the parcel of which the Tree Mitigation Area was a part before the parcel was subdivided. The cost of such reallocation shall be borne by Rancho North. The Tree Mitigation Areas shall become Common Area of Rancho Murieta Association. With the prior consent of Rancho Murieta Association, Subdividers may elect to utilize the replacement tree services of Rancho Murieta Association. If a Subdivider so elects and Rancho Murieta Association so consents, Rancho Murieta Association may impose its regular tree mitigation fee on Subdividers’ use of the Tree Mitigation Areas. Such regular tree mitigation fee shall not be included within, and shall be a charge in addition to, the RMA Contribution. Section 9.04. Approval of Future Park Sites. Except for the Recreational Facilities described in Recital C and those areas identified in Sections 9.01 and 9.02, above, no costs for any other Recreational Facilities or common areas shall be payable by Rancho Murieta North Association as part of the RMA Contribution until (i) the Rancho Murieta North Association, by majority vote of its Board of Directors and, if applicable, a vote of the Rancho Murieta North Association’s members approves such construction, acquisition or addition, such approval not to be unreasonably withheld, and (ii) all Lot Owners in the Rancho North Property are provided adequate access to such new areas. Adequate access may be provided by amendment of this Mutual Benefit Agreement or by other means reasonably approved by Rancho Murieta North Association and Rancho Murieta Association. A vote by members of the Rancho Murieta North Association to reject any proposal that the Association contribute to the Cost of new Recreational Facilities or common areas pursuant to this Section 9.04 shall not be considered as an unreasonable withholding as approval, so long as the Board of Directors of Rancho Murieta North Association has provided reasonable procedures in conducting the member vote.
Section 10.01. Murieta South Remote Park. The requirement in paragraph 2B, page 2, of the Park Development Agreement recorded in Book 9011-8, at page 0720, that N. T. Hill shall convey, not later than issuance of the 140th building permit, to Rancho Murieta Association the Murieta South Remote Park in a developed condition (a) is not an obligation of either Rancho North or the owner of The Greens, (b) does not run with the Rancho North Property, The Greens or any part thereof and (c) does not bind any successors in interest of the current owners of such property, including, without limitation, any grantee or successor holder of an interest in any of that property. Neither Rancho North nor the current owner of the Rancho Murieta Remote Park has any obligation to construct any facilities on, or make any improvements whatsoever to that Park Site or any Recreational Facility by reason of this Mutual Benefit Agreement. No waiver of any claims or rights Rancho Murieta Association may have to seek contributions for the construction of facilities on that Park Site from a person other than Rancho North and its successors and assigns, including, without limitation, any grantee or successor holder of an interest in the Rancho North Property, shall be implied from the foregoing sentences of this Section 10.01. Section 10.02. Murieta South Park. Rancho Murieta Association has accepted the condition of Murieta South Park as constructed and completed in accordance with the requirements of the Park Development Agreements. In the event Rancho North or Pension Trust Fund for Operating Engineers acquires title to Murieta South Park pursuant to the pending action to foreclose against Parcel 6 (which parcel includes Murieta South Park) and conveys Murieta South Park to District and District conveys the property to Rancho Murieta Association, Murieta South Park shall be included within the terms "Park Sites" and "Recreational Facilities" as used in this Mutual Benefit Agreement. |
