Attachment 2Attachment 2
Attachment 2
Attachment 2
TEMPORARY RIGHT OF ENTRY, CONSTRUCTION, AND MAINTENANCE AGREEMENT This TEMPORARY RIGHT OF ENTRY, CONSTRUCTION AND MAINTENANCE AGREEMENT (the “Agreement”) is entered into as of this day of , 2025, by and between Rancho San Clemente Community Association (sometimes referred to as "Grantor") and the CITY OF SAN CLEMENTE, a municipal corporation ("Grantee" or “City”). Grantor and Grantee are collectively referred to herein as the "Parties".
R E C I T A L S
WHEREAS, Grantor is a duly organized and existing California non-profit corporation and an association within the meaning of California Civil Code section 4080 (hereinafter the “Master Association”) with a mailing address of 5050 Ave. Encinas, Suite 160, Carlsbad, California, and is the owner of certain real property situated in the City of San Clemente, County of Orange, State of California, commonly known as Rancho San Clemente, San Clemente, California 92008, APN 690-531-07, hereinafter referred to as “Site”; and WHEREAS, Grantee is a California municipal corporation and public agency (the “City”), with a mailing address of 910 Calle Negocio, San Clemente, California 92673; and WHEREAS, the Parties desire Grantee and its officers, agents, employees, contractors, subcontractors, permittees, lessees and licensees to obtain access and construction rights on, over, under, and across the Site in the area depicted on the map attached hereto as Exhibit A and incorporated fully herein by this reference (the “Premises”).
A G R E E M E N T
NOW, THEREFORE, in consideration for the mutual promises, covenants and conditions contained herein and other good and valuable consideration, which the Parties hereby acknowledge is sufficient, the Parties agree as follows:
Grant of Right to Enter. Grantor hereby grants to Grantee and its officers, agents, employees, contractors, subcontractors, permittees, lease holders, licensees and representatives (collectively, “Grantee Parties”) a temporary right of entry and right-of-way on, under, over, and across the Premises with rights of ingress and egress, for the purposes referred to in this Agreement ("Right-of-Entry"). Grantor and each person executing this Agreement on behalf of Grantor represents and warrants to Grantee that Grantor is the owner in fee of the Site; that Grantor has the authority to enter into and perform its obligations set forth in this Agreement, including without limitation the right to convey this Right-of-Entry to Grantee; that Grantor’s grant of this Right-of-Entry does not breach any contractual or other obligation of Grantor to any third person or entity; that this Agreement has been properly approved by Grantor, including Grantor's members; that the persons executing this Agreement on behalf of Grantor are authorized to do so; that this Agreement, when so executed, constitutes a valid and binding obligation of Grantor in accordance with its terms; and that Grantor and each person executing this Agreement on behalf of Grantor will defend and indemnify the Grantee should any of the foregoing representations prove false.
Construction and Maintenance Work. Grantee Parties will install, construct, maintain, repair and replace to the Grantee’s sole satisfaction underground and surface improvements located on, under, over and across the Premises for waterline, communications, utilities, monitoring and public purposes (collectively, the “Work”). Improvements by the Grantee Parties shall be owned by them and shall not interfere with the Ridgeline Trail use or the rights of the Grantee.
Term. The term of this Agreement commences on the Effective Date and shall remain in full force and effect until the earlier of: (i) the date that is twenty (20) years after the Effective Date, (ii) the date that a permanent access easement is recorded allowing the Grantee Parties rights similar to those set forth in this Agreement to the approximate area depicted on Exhibit A, or (iii) the date that the Grantee provides written notice that it will no longer perform the Work (the “Term”).
Permanent Easement. Grantor hereby agrees to cooperate in good faith with Grantee and grant a permanent easement ("Easement") to Grantee similar to the rights granted in this Agreement. Grantee will prepare and record the Easement and provide and process all the other right-of-way documents and processing at no cost to Grantor. Similarly, the granting of the Easement by Grantor will be at no cost to Grantee. Each of the Parties shall bear their own costs, including attorney fees, in connection with preparation and granting of the Easement.
Coordination of Work. Grantee Parties are not required to coordinate with the Grantor regarding the timing of access or work. Grantor hereby approves the Work being performed according to the Grantee Parties’ standards and sole satisfaction.
Parties’ Maintenance Obligations. The Grantee will be responsible for the maintenance of the asphalt surface improvements to keep the Premises accessible for vehicle and pedestrian use. Grantee Parties shall be responsible for the Work at their sole cost and expense during the Term of this Agreement.
Repair of Damage. Grantee shall repair and restore any improvements damaged by the Grantee Parties’ construction to, as near as the same condition as existed prior to such damage as is practicable.
Rancho San Clemente Community Association’s Representations. Grantor represents and warrants that it is the owner of the Premises. Grantor further represents and warrants that it has full power and authority to grant to the Grantee Parties the rights set forth in this Agreement, and that no other person has any rights in the Premises that conflict with the Grantee Parties’ rights under this Agreement.
Insurance. For the duration of the Agreement, Grantee shall maintain, at Grantee’s sole cost and expense, (i) commercial general liability insurance, including Property Damage, Bodily Injury and contractual liability insurance subject to standard insurance carrier exclusions, in the amount of $2,000,000 each occurrence, $4,000,000 aggregate covering damages to the Premises to the extent caused by acts of Grantee, (ii) Auto Liability, including Bodily Injury and property damage in the amount of $1,000,000 each accident, and (iii) workers’ compensation insurance to comply with California law. For the duration of the Agreement, the Grantor shall maintain, at the Grantor’s sole cost and expense, (i) commercial general liability insurance, including Property Damage, Bodily Injury and contractual liability insurance subject to standard insurance carrier exclusions, in the amount of $2,000,000 each occurrence, $4,000,000 aggregate covering damages to the Premises to the extent caused by acts of the Grantor, (ii) Auto Liability, including Bodily Injury and property damage in the amount of $1,000,000 each accident, and (iii) workers’ compensation insurance to comply with California law.
City’s Indemnification. To the fullest extent permissible by law, Grantee agrees to indemnify, defend and hold Grantor harmless from and against any and all claims, damages, liabilities, penalties, fines, costs and expenses (including reasonable attorneys’ fees) arising from third party claims for bodily injury, including death, to persons or damage to tangible property caused by or resulting from City’s acts or omissions during the performance of the Work, except to the extent caused by the Grantor or its officers, agents, employees, contractors, subcontractors, permittees, lease holders, licensees, members or representatives (collectively, “Grantor Parties”). These obligations shall survive the expiration of this Agreement.
Grantor’s Indemnification. To the fullest extent permissible by law, Grantor agrees to indemnify, defend and hold Grantee Parties harmless from and against any and all claims, damages, liabilities, penalties, fines, costs and expenses (including reasonable attorneys’ fees), including third party claims for bodily injury, including death, to persons or damage to tangible property, arising out of or related to any act or omission of the Grantor Parties on or in connection with the Premises. These obligations shall survive the expiration of this Agreement.
Liens. Grantee shall not permit to be enforced against the Site or any portion thereof any mechanics', materialmens', contractors' or other liens arising from, or any claims for damages growing out of, any use herein authorized or otherwise arising, except from the actions of Grantor Parties, and Grantee shall pay or cause to be paid all of said liens and claims before any action is brought to enforce the same against Grantor or the Site; and Grantee agrees to indemnify and hold Grantor and the Site free and harmless from all liability for any and all such liens and claims and all costs and expenses in connection therewith.
Entire Agreement; Amendments. This Agreement constitutes the entire agreement between the Parties with respect to, and supersedes all prior agreements, promises and understandings, whether oral or written, with respect to, the subject matter contained herein except to the extent that anything herein relates to that certain Ridgeline Trail Easement Agreement between the Parties which was recorded in the Orange County Official Records as document number 95-0011241 on January 10, 1995 and subsequently amended as document number 95-0011242 on January 10, 1995, which agreement remains in full force and effect. This Agreement shall not be modified, amended, supplemented or revised, except by a written document signed by both Parties.
Governing Law and Venue. This Agreement and all matters relating to it shall be governed by the laws of the State of California and any action brought relating to this Agreement shall be held exclusively in a state court in the County of Orange. Rancho San Clemente Community Association hereby waives the right to remove any action from Orange County as is otherwise permitted by California Code of Civil Procedure Section 394.
Drafting Ambiguities. The Parties agree that they are aware that they have the right to be advised by counsel with respect to the negotiations, terms and conditions of this Agreement, and the decision of whether or not to seek advice of counsel with respect to this Agreement is a decision that is the sole responsibility of each Party. This Agreement shall not be construed in favor of or against either Party by reason of the extent to which each Party participated in the drafting of the Agreement Severability. In the event that any part of this Agreement is found to be illegal or unenforceable under the law as it is now or hereafter in effect, either Party will be excused from performance of such portion or portions of this Agreement as shall be found to be illegal or unenforceable without affecting the remaining provisions of this Agreement.
Counterparts and Electronic Signatures. This Agreement may be signed in several counterparts, each of which will be fully effective as an original and all of which together will constitute one and the same instrument. This Agreement may be signed electronically and signatures may be transmitted by facsimile or email, any of which will be deemed the equivalent of an original signature.
Signatories. Each signatory and Party hereto hereby warrants and represents to the other Party that it has legal authority and capacity and direction from its principal to enter into this Agreement, and that all resolutions or other actions have been taken so as to enable it to enter into this Agreement. [SIGNATURES ON FOLLOWING PAGE]
WITNESS WHEREOF, the Parties have executed this on the dates set forth below their respective signatures, with this Agreement effective upon execution by both Parties as of the date first indicated above.
City of San Clemente
Rancho San Clemente Community Association
By:
By:
Andy Hall, City Manager
Vonne Barnes, RSCCA Board President
Date:
Date:
APPROVAL AS TO FORM:
Elizabeth A. Mitchell, City Attorney
Date
ATTEST:
Laura Campagnolo, City Clerk
Date
Exhibit A
2 A