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1 Golf-course
Crossings Agreement
(Shorecliffs)
This Golf-course Crossings Agreement (“Agreement”), effective _____________________, 2023 (“Effective Date”), is between the City of San Clemente, a municipal corporation (“City”) and GC-8, LLC, a California limited liability company (“GC-8” or “Golf Course”). The City and Golf Course are sometimes referred to collectively as the “Parties” and each individually as a “Party.”
BACKGROUND
A. Owner. GC-8 owns most of the parcels comprising the Shorecliffs golf course in San Clemente, California.
B. Project. On March 6, 2019, the City’s Planning Commission approved Architectural Permit 14-430, Site Plan Permit 17-339, and Conditional Use Permit 17-338 in connection with plans to demolish the Shorecliffs golf clubhouse and construct a 150-unit four-story senior apartment complex and a new golf clubhouse at 501 Avenida Vaquero (the “Project”).
C. Golf Course. The Shorecliffs golf course is open to the public and extends both north and south of the Interstate 5 highway.
D. Street Dedications (Easements). When the golf course was built in the 1960s by the developer of the Shorecliffs community, the developer dedicated certain easement interests to the City for public road and street purposes. The underlying fee interest in the street rights-of-way remained with the owner–developer of the golf course.
E. Crossings. When traveling between holes or to and from the clubhouse, golfers, visitors, and employees of the Shorecliffs golf course at times cross City rights-of-way. Such crossings include: “at-grade” crossings over City streets and “below-grade” crossings under City streets through Golf Course-owned culverts and one City-owned culvert. The at-grade and below-grade crossings that are the subject of this Agreement are referred to collectively herein as the “Crossings” and are depicted in Exhibit A. Each is described below.
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2 • 1. Crossing 1 is a below-grade crossing through a culvert that passes under the public street Via Montego. The culvert is owned by the Golf Course. The crossing is not used to convey stormwater. The crossing was constructed approximately 57 years ago as part of the initial development of the golf course and the adjacent residential tract and has been used and maintained by the Golf Course since then. • 2a. Similar to Crossing 1, Crossing 2a is a below-grade crossing under the public street Avenida Vaquero. The crossing structure itself is owned by the Golf Course.
The crossing is not used to convey stormwater. The crossing was constructed approximately 57 years ago as part of the initial development of the golf course and the adjacent residential tract and has been used and maintained by the Golf Course since then.
• 2b. Crossing 2b is an above-grade crossing over the public street Avenida Vaquero.
The crossing has been used by the Golf Course to allow certain maintenance vehicles to cross that are too large to use Crossing 2a and as a backup for golfers, employees, contractors, and other guests and invitees of the Golf Course to cross when Crossing 2a is not usable.
• 3a. Crossing 3a is a below-grade culvert under the public street Avenida Vaquero.
The culvert itself is privately owned by the Golf Course. The culvert also conveys stormwater from Calle Vista Torito and Caltrans right-of-way. The crossing was constructed approximately 57 years ago as part of the initial development of the golf course and the adjacent residential tract and has been used, maintained, and modified by the Golf Course since then.
• 3b. Crossing 3b is an above-grade crossing over the public street Avenida Vaquero.
The crossing has been used by the Golf Course to allow certain maintenance vehicles to cross that are too large to use Crossing 3a and as a backup for golfers, employees, contractors, and other guests and invitees of Golf Course to cross when Crossing 3a is not usable.
• 4a. Crossing 4a is a below-grade culvert under the public street Avenida Vaquero.
The culvert was conveyed to the City and is used to convey stormwater from the MO1 (Prima Deshecha) watershed. The culvert was designed to accommodate crossings under Avenida Vaquero by golfers, employees, contractors, and other guests and invitees of the Golf Course when such use is not rendered unsafe due to the presence of stormwater). The Golf Course has been using it as a crossing since its completion approximately 40 years ago. This culvert is part of a FEMA Zoned Flood Zone.
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3 • 4b. Crossing 4b is an above-grade crossing over the public street Avenida Vaquero.
The crossing has been used by the Golf Course to allow certain maintenance vehicles to cross that are too large to use Crossing 4a and as a backup for golfers, employees, contractors, and other guests and invitees of Golf Course when Crossing 4a is not usable.
• 5. Crossing 5 is an above-grade crossing over the public street Calle Vista Torito.
The crossing has been used by the Golf Course since its completion in the 1960s to allow golfers, employees, contractors, and other guests and invitees of Golf Course to cross from one hole of the golf course to the next.
F. Memorializing and Enhancing Crossings. The City and Golf Course desire to memorialize their rights and obligations with respect to the Crossings, including risk allocation and indemnification and right to enhance certain Crossings.
G. Condition. The Planning Commission imposed the following condition of approval: “Prior to the issuance of any permits, the golf course property owner(s) shall submit and obtain approval of access and encroachment easements, and/or hold harmless/indemnity agreements for golf course improvements and activities which are located in the public street right of ways and/or easements along the entire golf course. Current improvements and activities include the golf course cart/pedestrian path crossings above and below grade, tunnel improvements, etc. The golf course property owners shall agree to defend and hold harmless the City and its employees for any and all actions related to golf course and its customer’s activities within the street right of way or City easement areas.”1 H. Timing. Originally, the Golf Course was required to satisfy Condition 3.25 before any permit may be issued for the Project. Subsequently, the City agreed to defer satisfaction of Condition 3.25 to the Certificate of Occupancy for the new Golf Course Clubhouse.
I. Satisfaction. This Agreement is intended to satisfy Condition 3.28 as to the Crossings. The Parties intend to address general golf-course stormwater issues separately.
TERMS AND CONDITIONS
1. Privately Owned Crossings Under City Streets (Crossings 1, 2a, 3a)
1.1 The City hereby recognizes and ratifies the ongoing use by the Golf Course of Crossings 1, 2a, and 3a under dedicated City streets, where Golf Course owns the underlying fee interest.
1 Reso. No. PC 19-006, Condition of Approval No. 3.28.
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4 1.2 The Golf Course is solely responsible for the crossing structures at 1, 2a, and 3a, including maintenance of these Crossings. The Golf Course acknowledges its obligation to maintain and use the Crossings in a way that does not interfere with the City’s public right-of-way easement. This includes ensuring that use of the Crossings does not undermine physical support of or interfere with the public street, with public utilities, or with other public improvements that are consistent with the scope and purpose of the City’s easement.
1.3 The Golf Course recognizes that Crossing 3a currently conveys stormwater (though there is no public or private storm drain easement in place at this time).
2. Unimproved Crossings Over City Streets (Crossings 2b, 3b, 4b)
2.1 These at-grade Crossings may only be used by the following:
(A) The Golf Course’s maintenance vehicles that cannot use the corresponding below-grade Crossing (1, 2a, 3a, and 4b, respectively) and (B) Golfers, employees, contractors and other invitees of the Golf Course, as permitted by law, when the corresponding below-grade Crossing is not useable, whether because of flooding, maintenance activities, or some other cause.
2.2 Nothing in this Agreement authorizes the Golf Course or any other person to improve Crossing 2b, 3b, or 4b with striping, lights, or any other demarcation in the public right-of-way. These crossings are only for limited, occasional use as described above.
3. Improved Crossing Over City Street (Crossing 5)
3.1 Crossing 5 may continue to be used regularly by golfers, employees, contractors and other invitees of the Golf Course.
3.2 Before April 1, 2023, unless otherwise extended by the City Engineer, the Golf Course or its designee will secure an encroachment permit from the City and design and construct at-grade crossing improvements at this Crossing that include the following:
(A) A lighted crosswalk.
(B) Advanced-warning signage.
(C) Golf cart and pedestrian detection/activation system. 55452.07100\41007201.10
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5 3.3 If the San Clemente City Engineer deems changes to the crossing improvements to be reasonably necessary to ensure health, safety, or welfare of the public based on then-current industry practice or the City’s established Technical Engineering Standards, the Golf Course will make the requested changes within a reasonable time, at its expense and to the reasonable satisfaction of the City Engineer. If the Golf Course disagrees with the City Engineer’s determination of necessary crossing improvements, the Golf Course may appeal the City Engineer’s decision in accordance with the City’s municipal code.
4. City-owned Culvert (Crossing 4a)
4.1 The City recognizes and ratifies the ongoing use of Crossing 4a by golfers, employees, contractors and other invitees of the Golf Course.
4.2 The Golf Course may not modify Crossing 4a in any way without securing the prior written approval of the City Engineer. The Golf Course will apply for and obtain an encroachment permit from the City before making any modification. The Golf Course acknowledges that its use of Crossing 4a is secondary to and must not interfere with or disturb the City’s or City-approved use of the culvert’s stormwater- conveyance and flood-control functions.
5. Hold Harmless.
5.1 The Golf Course will defend and hold the City and its employees harmless from any claim, expense, or other damage arising from or related to use of the Crossings by golfers, employees, contractors or other invitees of the Golf Course or related to the condition of the below-grade private crossings owned by Golf Course. This provision survives termination or expiration of this Agreement.
5.2 Section 5.1 does not apply to any claim, expense, or other damage to the extent that it arises from the active or gross negligence or willful misconduct of the City or its employees.
6. General Provisions
6.1 Counterparts. This Agreement may be executed in one or more counterparts, each of which is deemed an original, but all of which together constitute one and the same instrument.
6.2 Authority to Execute Agreement. The Parties represent that the individuals signing this Agreement have full right and authority to bind their respective parties to this Agreement. Each individual signing this Agreement on behalf of a Party 55452.07100\41007201.10
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6 represents and warrants that they are duly authorized by their Party to execute this Agreement on the Party’s behalf.
6.3 Attorney Fees. If a Party institutes any action or proceeding against any other Party with regard to this Agreement, the prevailing Party is entitled to recover from the non-prevailing Party (in addition to all other remedies provided by law) its reasonable attorneys’ fees and costs incurred in the action or proceeding, including all appeals and remanded proceedings.
6.4 Successors and Assigns. This Agreement binds and inures to the benefit of the Parties and their respective heirs, legal representatives, successors, and assigns. But no Party may assign its rights or obligations under this Agreement without the written consent of the other Parties.
6.5 Entire Agreement. This Agreement contains the entire agreement between the Parties with respect to the subject matter hereof and supersedes all proposals, negotiations, conversations, discussions, other agreements, and representations, whether oral or written, between the Parties relating to the subject matter of this Agreement.
6.6 Governing Law. This Agreement has been executed in and is governed by the laws of the State of California. Venue lies exclusively in courts of competent jurisdiction in Orange County, California.
6.7 Severability. If any provision of this Agreement is for any reason held to be unenforceable by a court of competent jurisdiction, such unenforceability has no effect on any other provision of this Agreement, and this Agreement must be construed as if such unenforceable provision or provisions had never been contained herein.
6.8 Notices. All notices and demands must be given in writing by personal delivery or first-class mail, postage prepaid. Notices must be addressed as appears below for the respective Party; provided that, if any Party gives notice of a change of name of address, notices to the giver of that notice must thereafter be given as demanded in that notice. Notices are deemed received 72 hours after deposit in the United States mail.
(A) To the City:
City of San Clemente
Attention: Public Works Director-City Engineer
910 Calle Negocio, Suite 100
San Clemente, CA 92672
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7 With Copy to:
City Clerk of the City of San Clemente
910 Calle Negocio, Suite 100
San Clemente, CA 92673
(B) To GC-8:
GC-8, LLC
Attn: Golf Course Manager or Owner
501 Avenida Vaquero
San Clemente, CA 92672
6.9 Waiver. Lack of enforcement by a Party of a breach of any term, covenant, or condition of this Agreement is not a waiver of the term, covenant, or condition or of any subsequent breach of the same or of any other term, covenant, or condition.
No delay or omission in the exercise of any right or remedy of a Party impairs such right or remedy or may be construed as a waiver of any default of the other Party.
Consent to or approval of any act by a Party requiring consent or approval of the other Party does not waive or render unnecessary such consent to or approval of any subsequent act. A waiver must be in writing, signed by the Party against whom enforcement is sought, and does not waive any other matter concerning the same or any other provision of this Agreement.
6.10 Amendment. No provision of this Agreement may be modified, amended, or added except by a writing signed by the Parties.
6.11 Joint drafting. Both Parties acknowledge and agree that they were each involved in the drafting of this Agreement, had the opportunity for their counsel to review it, and the rule that an agreement is to be interpreted against the drafter shall not apply to the interpretation of this Agreement.
(Signatures on following pages)
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8 IN WITNESS WHEREOF, the Parties have executed this Agreement as indicated below.
CITY:
CITY OF SAN CLEMENTE
By:
Andy Hall, City Manager
Date:
Attested By:
______________________________
City Clerk
APPROVED AS TO FORM:
______________________________
Elizabeth A. Mitchell, City Attorney
Date:
(Signatures continue on following page)
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9 GOLF COURSE:
GC-8, LLC,
a California limited liability company:
By:
Fah Sean Leong
Date:
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10 EXHIBIT A
CROSSINGS
(Follows this page)
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!!
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CAM CAPISTRANO
CAM
CAP
SI
TRANO
EBB TIDE DR
PALM DR
SEA BREEZE DR
VIA SENDA
VIA MONTEC
VIA SANT
VIA VISTOSA
VIA VERBEN
AV
E
VA
Q
U
E
RO
VIA MONTEGO
VIA BANDITA
VIA LADO
VIA MONTECITO
VIA MONTEG
MONTE
VIS
VIA CASCAD
SH
ITA
ELL DR
BAY DR
PACIFIC DR
OCEAN
DR
VIA
N
A
DA
3a
2a
1 3b
2b
I
Shorecliffs Golf Course
Golf Cart Accessible Culverts
!! Private Road - Private Cart Crossing
!! Public Road - Cart Crossing
!! Public Road - Private Culvert Cart Path
!! Public Road - Drainage and Cart Parth
!! City Owned - Drainage and Cart Path
!! !!
CAMPANILLA
CAM DE LOS MARES
CLE GUADALAJA
AVE
M
C
L
E
VA
L
LA
RTA
C
L
E
A
M
A
B
L
E
C
L
E
B
RISA
CAMPANILLA
CANTILENAVIA
TUNAS
CLE
VICENTE
CLE
CANASTA
VIA GOLET
CLE BARANDA
CLE GA
CLE JUAREZ
VIA JUAREZ
AVE VAQUERO
VIA
SAN
GORGONIO
CLE GRANDE VIS
CLE ARCO
CLE
CAMPANA
CLE HI
4a
4b
I
Shorecliffs Golf Course
Golf Cart Accessible Culverts
!! Private Road - Private Cart Crossing
!! Public Road - Cart Crossing
!! Public Road - Private Culvert Cart Path
!! Public Road - Drainage and Cart Parth
!! City Owned - Drainage and Cart Path
!!
!!
!!
!!
!!
VIA ARBOLED
VIA
A
MONTECITO
VIA SANTO TOMAS
VIA CASA LOMA
VIA VERBENA
VIA MONTEZUMA
VIA MONTECITO
CLE VISTA TORITO
VIA MONTEGO
CLE JUAREZ
CLE SOR
CLE FR
VIA SAN
GORGONIO
VIA
SAN
JACINTO
VIA CORBINA
3a
2a
5 3b
I
Shorecliffs Golf Course
Golf Cart Accessible Culverts
!! Private Road - Private Cart Crossing
!! Public Road - Cart Crossing
!! Public Road - Private Culvert Cart Path
!! Public Road - Drainage and Cart Parth
!! City Owned - Drainage and Cart Path