RIGHT OF ENTRY AND MAINTENANCE AGREEMENT
This RIGHT OF ENTRY AND MAINTENANCE AGREEMENT (the “Agreement”) is made by and between Rancho San Clemente Community Association, (Grantor) a 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 owning the real estate commonly known as Rancho San Clemente, San Clemente, California 92008, APN 688-091-08 (hereinafter the “Property”) and the City of San Clemente, (Grantee) a California municipal corporation and public agency (the “City”), with a mailing address of 910 Calle Negocio, San Clemente, California 92673. This Agreement commences on the later of the execution dates set forth below the signatures (hereinafter the “Effective Date”). City and Master Association may individually be referred to as a "Party" or collectively as the "Parties.” THE PARTIES AGREE AS FOLLOWS:
1. Right of Entry. In consideration of the mutual benefits and obligations set forth herein, HOA hereby authorizes City and its officers, agents, employees, contractors, and subcontractors to enter upon the Property in the area depicted on the map attached hereto as Exhibit A and incorporated fully herein by this reference (the “Premises”), in connection with the following work (the “Work”):
City will trim and maintain to its sole satisfaction the first row of trees in the areas indicated on Exhibit A hereto and as identified in Exhibit B hereto, which Exhibits are fully incorporated herein by this reference. The City also has the right, but not the obligation, to remove any diseased tree identified in Exhibit B and may, but is not required to, replace any such tree so removed.
For reference and clarification, the City will maintain to its sole satisfaction trees in the public right-of-way as indicated in Exhibit C. The schedule for tree maintenance as identified in Exhibit B and C is intended by the City to be based in its sole discretion upon available funding, determination of need for trimming (condition of the trees), and regulatory mandated trimming based on fire prevention, which the City is currently analyzing citywide and is subject to change from time to time depending upon regulatory requirements, including state and local law.
2. 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 ten (10) years after the Effective Date, or (iii) the date that the City provides written notice that it will no longer perform the Work (the “Term”).
3. Coordination of Work. City will coordinate with Master Association regarding the timing of the Work. The Master Association hereby approves the Work being performed according to the City’s standards and sole satisfaction.
4. Master Association’s Representations. Master Association represents and warrants that it is the Owner of the Premises. Master Association further represents and warrants that it has full power and authority to grant to City the rights set forth in this Agreement, and that no other person has any rights in the Premises that conflict with City’s rights under this Agreement.
5. Parties’ Maintenance Obligations. Except for the Work, the Master Association, at its sole cost and expense, shall be responsible for all trimming, maintenance, upkeep, repair and replacement of trees, landscaping and anything else on the Premises and for keeping the Premises in a safe condition. City shall be responsible for the Work at its sole cost and expense during the Term of this Agreement.
6. Insurance. For the duration of the Agreement, City shall maintain, at City’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 City, (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 Master Association shall maintain, at the Master Association’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 Master Association, (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.
7. City’s Indemnification. To the fullest extent permissible by law, City agrees to indemnify, defend and hold Master Association 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 Master Association. These obligations shall survive the expiration of this Agreement.
8. Master Association’s Indemnification. To the fullest extent permissible by law, Master Association agrees to indemnify, defend and hold City 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 the condition of the Premises or the existence or validity of this Agreement or any decision in connection therewith, or any negligent act or omission of the Master Association in connection with the Premises. These obligations shall survive the expiration of this Agreement.
9. 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. This Agreement shall not be modified, amended, supplemented or revised, except by a written document signed by both Parties.
10. 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. Master Association hereby waives the right to remove any action from Orange County as is otherwise permitted by California Code of Civil Procedure Section 394.
11. 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.
12. 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.
13. 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.
14. 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.
IN 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
RANCHO SAN CLEMENTE COMMUNITY ASSOCIATION TREE RIGHT-OF-ENTRY AREA
EXHIBIT B
IDENTIFICATION OF TREES WITHIN MASTER ASSOCIATION PROPERTY
EXHIBIT C
REFERENCE OF CITY TREES WITHIN THE PUBLIC RIGHT-OF-WAY
Attachment 3