USACM Liquidating Trust v. Placer County Land Speculators, LLC et al

Filing 687

ORDER Granting 677 MOTION for an Order Authorizing Receiver to Enter Into a Professional Service Agreement With Johas and Associates, Inc., and a Grazing Lease Agreement. Signed by Judge Kent J. Dawson on 12/1/2011. (Copies have been distributed pursuant to the NEF - SLR)

Case 2:08-cv-01276-KJD-RJJ Document 683

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PAUL J. PASCUZZI, CA State Bar No. 148810
FELDERSTEIN FITZGERALD
WILLOUGHBY & PASCUZZI LLP
400 Capitol Mall, Suite 1450
Sacramento, CA 95814
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Elli M. A. Mills, J.D., MBA, Receiver

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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USACM LIQUIDATING TRUST,
Plaintiff,

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v.

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Civil Action No. 2:08-cv-01276-KJD-RJJ

PLACER COUNTY LAND
SPECULATORS, LLC, aka PLACER
COUNTY LAND INVESTORS, LLC; et
al,

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Date:
Time:
Judge:

November 29, 2011
9:00 a.m.
Hon. Kent J. Dawson

Defendants

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ORDER AUTHORIZING RECEIVER TO ENTER INTO A PROFESSIONAL
SERVICE AGREEMENT WITH JOHAS AND ASSOCIATES, INC.,
AND A GRAZING LEASE AGREEMENT

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Upon consideration of the Motion of Receiver for an Order Authorizing Receiver to Enter

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Into a Professional Service Agreement with Johas and Associates, Inc., and a Grazing Lease

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Agreement [Docket No. 677] (the “Motion”), after a hearing on proper notice, the Court having

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considered the Motion and arguments, and good cause appearing,

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IT IS ORDERED that:

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1.

The Motion is granted;

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1.

The Receiver is authorized to enter into the Professional Service Agreement with

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///

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///
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ORDER AUTHORIZING RECEIVER TO ENTER
INTO A PROFESSIONAL SERVICE AGREEMENT
AND A GRAZING LEASE AGREEMENT

Case 2:08-cv-01276-KJD-RJJ Document 683

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Johas and Associates, Inc. on the terms specified in the Motion; and
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The Receiver is authorized to enter into the Lease Agreement attached hereto as

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Exhibit A.

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December 1
Dated: __________________, 2011

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________________________________
United States District Court Judge
District of Nevada

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ORDER AUTHORIZING RECEIVER TO ENTER
INTO A PROFESSIONAL SERVICE AGREEMENT
AND A GRAZING LEASE AGREEMENT

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EXHIBIT A

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GRAZING LEASE
This LEASE is made and entered into this 1st day of November, 2011_ by and
between Elli A. Mills Court Appointed Receiver, Placer 1 Owners’ Receivership C/o
Johas & Associates, Inc. hereinafter referred to as "LESSOR", and Tenant hereinafter
referred to as "LESSEE".
I
The Premises
LESSOR hereby leases to LESSEE, and LESSEE hereby hires from LESSOR, on the
terms and conditions set forth in this LEASE, all that certain real property
(hereinafter referred to as the "PREMISES") situated in Placer County County, State
of California, and including such improvements as may now be located thereon as are
owned by LESSOR.
The PREMISES are more particularly described in Exhibit "A", attached hereto
and incorporated herein by this reference. The parties agree that the PREMISES
shall be deemed to contain 338 acres without regard to the actual acreage and
commonly known as follows: Elli A. Mills Court Appointed Receiver, Placer 1 Owners’
Receivership.
II
Disclaimer of Warranty - Soil & Water Suitability
LESSOR makes no warranty of the soil or water suitability for any purpose
whatsoever. LESSOR makes no warranty as to supply of water.
III
Lease subject to Existing Rights of Owners
This LEASE is subject to:
A. All existing easements, servitudes, licenses, and rights-of-way for
canals, ditches, levees, roads, highways, and telegraph, telephone, and electric
power lines, railroads, pipelines and other purposes, whether recorded or not.
B. The rights of other lessees under any existing or future oil, gas and
mineral lease or leases from LESSOR affecting the entire or any portion of the
PREMISES, whether recorded or not.
IV
Utilities
LESSEE shall pay for all water, power, utility company charges and for all
other services supplied to the PREMISES, for livestock grazing purposes.
V
TERM
The initial term of this LEASE shall commence as of November 1, 2011 and
continue through June 30, 2012, and shall terminate on, June 30, 2012 subject to the
Right of Termination contained in Paragraph XIX hereof.
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VI
Abandonment
LESSEE shall not vacate or abandon the PREMISES at any time during the term
hereof. If LESSEE does abandon, vacate or surrender the PREMISES, or if LESSEE is
dispossessed by process of law or otherwise, any personal property belonging to
LESSEE and left on the PREMISES shall be kept for a reasonable time by LESSOR, but
in no event longer than fifteen (15) days after LESSOR gives LESSEE notice to remove
such property from the PREMISES, after which time, if it has not been reclaimed by
LESSEE, it may be treated by LESSOR as abandoned.
VII
Consideration
LESSEE shall pay LESSOR as rental for the use and occupation of the PREMISES
the sum of Seven Thousand and Ninety Eight Dollars and no/100 ($7,098), payable in
advance, with the rent being payable on execution of this LEASE.
VIII
Use of the Premises
The PREMISES are leased to LESSEE for the purposes of grazing and pasturing
cattle and for no other purpose.
LESSEE agrees to carry on all of its operations hereunder in accordance with
good husbandry and the best grazing practices of the county in which the PREMISES
are located and shall not permit the PREMISES or any part thereof to be overgrazed.
IX
Compliance with Law
In all operations hereunder, LESSEE shall, at his sole expense, promptly
comply with any and all laws, ordinances, rules, regulations, requirements and
orders of any nature whatever, present or future, for all national, state, county or
municipal governments, which may in any way apply to the use, maintenance or
occupation of, or operations upon, the PREMISES. Firebreak is to be provided by
Tenant. Firebreak is to be 40’ wide at its narrowest point and shall comply will
government standards as to construction and maintenance.
X
Taxes
LESSEE shall pay all taxes assessed against LESSEE'S personal property upon
the PREMISES. Lessor is responsible for annual property taxes.
XI
Indemnification
LESSOR shall not at any time, nor to any extent whatsoever, be liable,
responsible, or in any way accountable, for any loss, injury, death or damages to
persons or property from any cause or causes whatsoever, which at any time may be
suffered or sustained by LESSEE or by any other person who may at any time during
the term of this LEASE be using, occupying, or visiting the PREMISES, and LESSEE
shall indemnify and save LESSOR harmless from any and all claims, liabilities,
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losses, damages, costs and expenses whatsoever arising out of any loss, injury,
death or damages, however occurring, to any person or property and resulting from
any contact with the PREMISES or from LESSEE'S use thereof. LESSEE shall promptly
reimburse LESSOR, or other owner or LESSEE, as the case may be, for all damages to
property adjoining the leased PREMISES, and to crops growing thereon, suffered by
reason of any encroachment thereon by LESSEE'S livestock.
XII
Insurance
A.

LESSEE, at his sole expense shall procure and maintain in full force and
effect insurance as a minimum as follows:
1.

2.

B.

All required Worker’s Compensation Insurance relating to LESSEE’S
business: and
Public Liability Insurance with limits of not less than ONE MILLION
DOLLARS ($1,000,000.00) per person, ONE MILLION DOLLARS ($1,000,000.00)
per occurrence, and ONE MILLION DOLLARS ($1,000,000.00) for property
damage, insuring against any and all liability of LESSEE and LESSOR
with respect to the PREMISES or arising out of the maintenance, use or
occupancy thereof.

All insurance policies shall be issued by companies and in form satisfactory
to LESSOR, shall name LESSOR and Johas and Associates, Inc. as an
additionally insured, and shall expressly provide that the insurance company
shall notify LESSOR in writing at least (30) days prior to any alteration or
cancellation thereof. Each such policy or appropriate evidence thereof,
together with evidence that the premium thereon has been paid, shall be
delivered to LESSOR forthwith on execution of this LEASE.
XIII
Maintenance and Repairs

The LESSEE agrees that he will, at all times during the term hereof, keep and
maintain all fences, corrals, cattle guards, tank platforms, troughs, and all other
improvements used by LESSEE on said PREMISES in as good a condition and state of
repair as the same are now in, at his own expense and without any expense whatsoever
to LESSOR, except as herein otherwise specifically provided, and that he will
furnish and pay for all labor required for such repairs and maintenance, and that he
will pay all bills incurred in connection with his operation of said demised
PREMISES.
A.

LESSEE shall bear all other expenses specifically including, but not limited
to all utility charges for light and power. Lessee is responsible for all
maintenance and repair of fences as well as any vandalism, which may occur.
XIV
Liens

A.

B.

LESSEE shall keep the PREMISES and the improvements thereon free and clear of
all liens arising out of or claimed by reason of any work performed, material
furnished or obligations incurred by or at the instance of LESSEE and
indemnify and save LESSORS and the PREMISES and the improvements upon the
PREMISES harmless of all such liens or claims of lien and all attorney’s fees
and other costs and expenses incurred by reason thereof.
LESSEE shall not create, or cause to be created, any document or conveyance
affecting the title of the leased PREMISES.
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XV
Insolvency
In the event any proceedings under the Bankruptcy Act or any amendment thereto be
commenced by or against LESSEE, or in the event LESSEE be adjudged insolvent or make
an assignment for the benefit of its creditors, or if a writ of attachment or
execution be levied on the leasehold estate hereby created and not be released or
satisfied within thirty (30) days thereafter, any such event shall constitute a
breach of the LEASE by LESSEE and, at the option of LESSORS and without notice of
entry or other action of LESSOR, shall terminate this LEASE and all rights of LESSEE
hereunder.
XVI

Entry by Lessor
A.
LESSOR shall have the right to enter the PREMISES at all reasonable
times to inspect the same, to determine whether LESSEE is performing his obligations
under this LEASE, or to exercise any of his rights hereunder.
B.
LESSOR, its engineers and agents shall have access to the leased
PREMISES at all reasonable times during the term of this LEASE for the purpose of
conducting studies, surveys, soil tests, engineering tests and similar purposes.
All such tests shall be performed at LESSOR's sole cost and expense. LESSOR shall
repair any damage covered by such activity.
XVII
Surrender at End of Term
Upon the expiration of this LEASE, LESSEE shall peaceably and quietly leave
and surrender the PREMISES in good and clean condition, order and repair, reasonable
wear and tear excepted. On or before the expiration or prior termination of this
LEASE, LESSEE shall have the right to remove all trade fixtures and removable
personal property which may theretofore have been placed upon the PREMISES by
LESSEE; provided that LESSEE shall repair all damage to the PREMISES caused by such
removal. Any property of LESSEE not so removed may, at the option of Lessor, be
deemed surrendered and forfeited to LESSOR as additional rent hereunder.
XVIII
Default
If LESSEE shall fail to pay any part of the rental herein provided, or any
other sum required by this LEASE to be paid by LESSEE, at the times or in the manner
provided, or if default shall be made in any of the other covenants or conditions on
its part to be performed, then LESSOR, beside such other rights or remedies it may
have by law, may recover the worth at the time of the award of the amount by which
the unpaid rent for the balance of the term after the award exceeds the amount of
such rental loss for the same period that the LESSEE proves could be reasonably
avoided. Any rent or other sum payable by LESSEE that is not paid when due, shall
bear interest at the rate of fourteen percent (14%) per annum from the due date
until paid. Provided however, said interest shall not exceed the maximum rate
permitted by law.

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XIX
Termination
At any time during the term of this LEASE, LESSOR may, at its option,
exercised by written notice to LESSEE, terminate this LEASE with respect to all or
any portion of the PREMISES. Such notice of termination shall specify the
termination date and the acreage affected thereby and shall be delivered to LESSEE
not less than forty-five (45) days in advance of such date. LESSEE shall thereupon
be allowed a proportionate credit against the rent payable hereunder. If such
termination date is other than the end of an annual period during the LEASE term,
the rental credit shall be prorated in a reasonable manner.
XX
Waiver of Breach
No waiver by LESSOR of its rights to enforce any provisions hereof after any
default on the part of LESSEE shall be deemed a waiver of its right to enforce each
and all of the provisions hereof upon any further or other default on the part of
LESSEE.
XXI
Attorneys' Fees
Should either party hereto institute any action or proceeding to enforce any
provision hereof or for damages by reason of an alleged breach of any provision
hereof, the party prevailing in such action or proceeding shall be entitled to
recover reasonable attorney's fees.
XXII
Notices
All notices and demands to LESSEE provided for herein shall be deemed to have
been served only when such notice in writing is personally served on LESSEE or has
been deposited in the United States mail by registered or certified mail addressed
to the LESSEE at the demised PREMISES or such other place as LESSEE so advises
LESSOR in writing. All notices and demands to LESSOR provided for herein shall be
deemed to have been served only when such notice in writing is personally served on
LESSOR or has been delivered by registered or certified mail to LESSOR at the
address provided for the payment of rent to LESSOR or at such other place as LESSOR
so advises LESSEE in writing.
XXIII
Successors and Assignment
The terms, covenants and conditions contained herein shall bind and inure to
the benefit of LESSOR and LESSEE and their respective heirs, executors,
administrators, legal representatives, successors and assigns, provided that LESSEE
shall not assign its interest hereunder without the prior written consent of LESSOR.
No such consent shall be deemed consent to any further assignment. Any sale of the
PREMISES by LESSOR to a party that assumes LESSOR's obligations hereunder shall
thereupon relieve LESSOR of any further personal liability hereunder.

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XXIV
Conditions of Premises
LESSEE accepts the demised PREMISES in their "as is" condition without any
representations or warranties whatsoever. LESSEE shall maintain all improvements,
and shall return the property to LESSOR in the same condition as when the lease
started.
XXV
Alterations and Improvements
The PREMISES shall not be altered or changed without LESSOR's written consent.
Unless otherwise agreed in writing, all alterations, improvements and changes shall
be done either by or under the direction of LESSOR, but at the cost of LESSEE, and
shall be the property of LESSOR, and shall remain upon and be surrendered with the
PREMISES. LESSEE shall have the right, but not the obligation to repair, replace or
construct new fencing, as the LESSEE deems necessary to contain and restrain
LESSEE's cattle.
XXVI
Utilities
LESSEE shall pay for all water, gas, heat, light, power, telephone service,
and for all other services supplied to the PREMISES except as otherwise provided in
this LEASE.
XXVII
Oil, Gas and Mineral Rights
All rights in all minerals, oil, gas and other hydrocarbons located on or
under the leased PREMISES are particularly reserved to LESSOR and are particularly
excepted from the property covered by the terms of this LEASE. LESSEE expressly
grants to LESSOR, and to lessees of these oil, gas and mineral rights, and to
LESSOR's agents and licensees, a right of entry and a right-of-way for ingress and
egress in and to, over and on, the leased PREMISES during the term of this LEASE for
the exploration, drilling, and mining of minerals, oil, gas and other hydrocarbons
on the leased PREMISES; provided that LESSOR shall reimburse LESSEE for any
reasonable damages that LESSEE sustains as a result of any interference with the
agricultural operations conducted on the leased PREMISES under the terms of this
LEASE arising from exploration, drilling, or mining operations.
XXVIII
Hunting Rights
All hunting rights and privileges on the leased PREMISES are particularly
reserved to LESSOR; provided that no damage shall be done by LESSOR or those
claiming under him to any growing crops of LESSEE or other property rights of LESSEE
under this LEASE.

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XXIX
Timber Rights
All timber rights, of every kind and character, in the leased PREMISES are
reserved to LESSOR, who has the right to cut and remove the timber, or otherwise
exercise all timber rights, at all times during the term of this LEASE; provided
that no damage shall otherwise be done by LESSOR or those claiming under him to any
growing crops of LESSEE or other property rights of LESSEE under this LEASE.
XXX
Destruction of Premises
If a partial destruction of the PREMISES has occurred, from any cause, during
the term of the LEASE, LESSEE shall forthwith make necessary repairs. If the repairs
are not made within sixty (60) days, LESSOR has the right, at his option, to make
the repairs. LESSEE becomes responsible to reimburse LESSOR for repairs made. If
LESSOR does not make the repairs in sixty (60) days, or if the repairs cannot be
made under the current laws, rules, and regulations, this LEASE may be terminated at
the option of LESSOR.
XXXI
Condemnation
If a part of the PREMISES is condemned for a public use, and the remaining
part is susceptible of occupation by LESSEE, this LEASE shall terminate, as to the
part taken, on the date title vests in the condemnor. The rent payable under this
LEASE shall be adjusted so that LESSEE shall be required to pay for the remainder of
the term only the portion of the rent that the value of the part remaining after the
condemnation bears to the value of the entire PREMISES at the date of valuation for
condemnation purposes; but, in this event, LESSOR shall have the option to terminate
this LEASE as of the date that a certified copy of the final order of condemnation
is filed in the office of the County Recorder. All expenses necessary to restore
fences and to replace access roads lost by the condemnation shall be borne by
Lessor. If the entire or a part of the leased PREMISES is taken or condemned so
that there does not remain a portion capable of occupation by LESSEE, this LEASE
shall terminate on the date title vests in the condemnor.
If the entire or a part of the leased PREMISES is taken or condemned, all
compensation awarded on condemnation shall go to LESSOR, with LESSEE having no claim
to compensation; LESSEE irrevocably assigns and transfers to LESSOR any right to
compensation or damages to which LESSEE may become entitled during the term of this
LEASE by the condemnation of the entire or a part of the leased PREMISES.
XXXII
Subordination
This LEASE shall be subordinate to any mortgages or deeds of trust that may
subsequently be placed on the PREMISES, to all advances made under them, to the
interest on all obligations secured by them, and to all renewals, replacements, and
extensions of them.

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XXXIII
Recordation
Neither this LEASE nor any memorandum hereof shall be recorded.
XXXIV
Entire Agreement
This LEASE constitutes the entire agreement between the parties. Each party to
this LEASE hereby acknowledges that the other party has made no warranties,
representations, covenants or agreements expressed or implied to such party other
than those expressly set forth herein, including specifically any representations as
to the size of the PREMISES or the character of the improvements thereon.
XXXV
Construction
Whenever the content of any provision shall require it, the singular number
shall be held to include the plural number and vice versa. The neuter gender
includes the masculine and feminine. The captions at the beginning of each paragraph
of this LEASE are for convenience only and are not a part of this LEASE and do not
in any way limit or amplify the terms and provisions of this LEASE.

IN WITNESS THEREOF, the parties hereto have executed this LEASE as of the
1st day of November 2010.

LESSOR:

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Elli A. Mills Court Appointed Receiver
C/o Johas & Associates, Inc.
10537 Calvine Road
Sacramento, CA 95830

By:___________________________

Date______________

LESSEE:

Tenant
James Riolo
2660 Vineyard Road
Roseville, Ca 95747
916 992-9200
By:___________________________
Date______________

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