22-0920_PEPPERTREE BEND HOA_Encroachment and Maintenance AgreementRECORDING REQUESTED BY:
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
AND WHEN RECORDED, MAIL TO:
Maria Morris, City Clerk
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Exempt from Recording Fees:
Gov Code 27383
City of San Juan Capistrano
Title of Document:
61147.00310\40426060.2
Recorded in Official Records, Orange County
Hugh Nguyen, Clerk -Recorder
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ENCROACHMENT AND MAINTENANCE AGREEMENT
BY AND BETWEEN
THE CITY OF SAN JUAN CAPISTRANO
AND
PEPPERTREE BEND HOMEOWNERS' ASSOCIATION
REGARDING
THE CONSTRUCTION AND MAINTENANCE OF A
MONUMENT SIGN WITHIN
PUBLIC RIGHTS-OF-WAY AT THE INTERSECTION OF
PEPPERTREE BEND AND CALLE ASPERO
ENCROACHMENT AND MAINTENANCE AGREEMENT
PARTIES AND DATE
This Encroachment and Maintenance Agreement ("Agreement") is made and entered
into as of _ �� fat_ by and between the City of San Juan
Capistrano, a rriunicipal corporation organized and operating under the laws of the State
of California with its principal place of business at 32400 Paseo Adelanto, San Juan
Capistrano, CA 92675 ("City"), and PEPPERTREE BEND HOMEOWNERS'
ASSOCIATION, a California nonprofit mutual benefit corporation, whose mailing
address is 1900 E. Warner Ave., #'1 P, Santa Ana, CA 90705 ( "HOA"). The City and the
HOA are sometimes individually referred to as "Party" and collectively as "Parties" in
this Agreement.
RECITALS
A. The HOA is the homeowner's association of that certain community of single-
family homes located generally adjacent to Peppertree Bend Road, San Juan
Capistrano, CA 92675 (the "Community").
B. The HOA desires to construct, install, and maintain an externally illuminated
single -sided monument sign (the "Sign") at the entrance to the Community on
that certain landscaped median located at Calle Aspero and Peppertree Bend
Road, which is within the public right of way ("Median" and the right of way, the
"Right of Way"). The Sign and the Median are generally depicted in the Sign
Plans and Proposed Hardscape Improvements attached collectively hereto as
Exhibit A and incorporated herein by reference.
C. Besides the Sign, the HOA seeks to perform and maintain landscaping, including
the planting of vegetation and removal of existing vegetation, and removal of
cobble rock border inside the Median's curb, as well as normal upkeep such as
debris and litter removal, watering and trimming vegetation, and weed removal
("Landscaping") on the Median, which would require the HOA to enter upon the
Median (the "Permitted Activities"). The HOA is currently responsible for, and
performs, all landscape maintenance activities on the Median.
D. On or about April 25, 2022, the Santa Margarita Water District ("SMWD") issued
Encroachment Permit No. 22-020 ("Encroachment Permit") to Pacific Sign Center
Corp., a California corporation, ("PSC") allowing PSC, on behalf of the HOA, to
install the Sign on the Median above SMWD's underground facilities subject to
certain conditions. The Encroachment Permit is attached hereto as Exhibit B
and incorporated herein by reference.
E. The purpose of this Agreement is to set forth the terms and conditions of the
HOA's encroachment on, installation of, and maintenance of the Sign and the
Median to conduct the Permitted Activities, as required by the City.
TERMS
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1. Effective Date. Once executed, this Agreement shall be effective from the date of
its recordation ("Effective Date"). This Agreement shall be recorded only after the
installation of the Sign on the Median is complete and is accepted by the City.
2. Term. The term of this Agreement shall take effect upon the Effective Date and
shall continue until either Party terminates this Agreement per Section 12.
3. Sian and Median Maintenance. The HOA shall maintain the Sign and the Median
in accordance with the City's Municipal Code as well as in accordance with any
conditions imposed by the Encroachment Permit. The HOA is responsible to
ensure maintenance activities are in compliance with State and Federal
regulations as it relates to the use of pesticides and/or herbicides. The HOA shall
ensure appropriate water quality best management practices (BMPs) are
implemented during all installation and/or maintenance operations to mitigate
pollutants from entering the storm drain system.
4. Encroachment
4.1. Encroachment Granted. City grants to the HOA a non-exclusive right to
encroach upon the Median during the term of this Agreement for the
purpose of conducting the Permitted Activities. No change to the scope of
Permitted Activities is allowed except upon written permission of the City's
Engineer or duly authorized representative.
4.2. Permit Application and Fee. City acknowledges and agrees that this
Agreement, once executed, does not eliminate the need for the HOA to
complete City's Encroachment Permit Application. The HOA shall be
required to complete and file an annual Encroachment Permit and submit
applicable traffic control plan(s) in connection with conducting Permitted
Activities within the Median and/or Right of Way. The City's Encroachment
Permit will be issued as a no -fee permit provided the activities are limited
to routine maintenance. Any encroachment permit issued by the City does
not relieve the HOA of the responsibility to obtain approval and applicable
permits from SMWD or any other agency that may be impacted by the
Permitted Activities.
4.3. Non -Exclusive Use. The rights granted to the HOA hereunder shall include
non-exclusive access to the Median. By executing this Agreement, City
does not agree to restrict the number of right-of-way permits/agreements
to be executed in favor of other third parties that may cover or overlap with
the Right of Way or Median.
4.4. Coordination with Other Permittees. To the extent reasonably feasible and
not unduly interfering with the HOA's obligations contained herein, the
HOA shall coordinate its Permitted Activities with other parties known by
the HOA to be working in the City's public rights-of-way, including the
Right -of -Way and Median, from time to time.
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4.5. Work Hours in the Public Right -of -Way. The HOA's Permitted Activities
shall be limited to the hours between 7:30AM and 4:30PM, Monday
through Friday only, and no work on weekends or Federal Holidays except
for Emergency Response Activities as described in Section 6.1 below or
as specifically permitted in writing by the City's Engineer or duly
authorized representative.
4.6. Standard of Care. The HOA shall use and exercise due care, caution, skill
and expertise in performing all Permitted Activities under this Agreement
and shall take all reasonable steps to safeguard any work site area. Any
damage caused to City's infrastructure by the HOA or its agents,
employees, volunteers and contractors shall be replaced or repaired by
the HOA at its sole expense to the satisfaction of the City.
4.7. Protection of Traffic. The HOA shall perform the Permitted Activities in the
manner that results in the least amount of traffic disruption. The HOA shall
utilize the latest edition of the Work Area Traffic Control Handbook
(WATCH) to help ensure a safe work zone in connection with the
performance of any Permitted Activities.
5. Failure to Perform.
5.1. Notice to Cure.
5.1.1. Should the HOA violate any provision of this Agreement or fail to
perform under this Agreement in any way, the City shall provide the
HOA with written notice describing the violation or failure to perform
("Notice of Violation").
5.1.2. The HOA shall diligently work to cure the violation within ten (10)
business days of the date of the Notice of Violation. The City, at its
discretion, may at any time extend the time period to cure. Any
work performed by the HOA within the Median and/or Right -of -Way
will require an encroachment permit and traffic control measures as
needed before performing said work. Work performed by the HOA
within the public right of way shall only be performed by Contractors
with appropriate State Licenses. Work performed by the HOA within
the Right of Way and Median shall only be performed by
Contractors with appropriate State Licenses. The HOA will be
responsible for 100% of the repair costs within the Median,
including any repair costs within public property, the public right of
way, or adjacent private property that are caused or created by
improper installation and/or maintenance of the Sign and/or
Landscaping and any related improvements in the Median or Right
of Way.
5.1.3. In the event there is a violation or correction that requires
immediate attention to protect and/or prevent a public health and
safety concern and/or damage to adjacent public or private
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property, the HOA shall diligently work to cure the violation or
correction within 48 hours of notification from City.
5.2. City Performance.
5.2.1. If the HOA fails to cure any violation or correction per Section 5.1.2
or 5.1.3, or, following the commencement of any cure efforts, fails
to diligently and in good faith continue to cure such violation to
completion per Section 5.1.2 or 5.1.3, then, at the HOA's sole
expense, the City may undertake to perform the HOA's obligations
by providing written notice to the HOA.
5.2.2. The City shall invoice the HOA for the City's costs to perform the
obligations. The HOA shall pay the City's invoice within thirty (30)
days of the City's issuance of the invoice.
5.3. Lien. If the HOA fails to cure any violation per Section 5.1 or fails to pay
the City's invoices per Section 5.2.2, then the City has the right to
establish and enforce a lien or other encumbrance against the Property to
recover.
6. Permitted Activities
6.1. The HOA is authorized to perform the following activities for the
construction, installation, and maintenance of the Sign, and the
performance, care, and maintenance of the Median:
6.1.1. Construction and Installation — Construction and installation of an
externally illuminated, single -sided monument sign on
approximately 15 square feet of the Median with a footing
extending approximately 3 -feet below the surface, including
potholing existing water and sewer facilities; performance of
Landscaping on the Median.
6.1.2. General Inspections — Evaluations conducted at regularly
scheduled intervals to indicate the need for maintenance of the
Sign and Landscaping.
6.1.3, Routine Maintenance Activities — Activities conducted at regularly
scheduled intervals to maintain the appearance and integrity of the
Sign and the health and appearance of the Landscaping.
Landscaping shall not impede the line of site within the intersection
of Peppertree Bend and Calle Aspero.
6.1.4. Corrective (Major) Maintenance Activities — Replacement or
rehabilitation of the Sign and any or all of the Landscaping at the
end of their useful life as well as other activities conducted to
resolve major issues that are not anticipated.
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6.1.5. Emergency Response Activities — Activities conducted to address
public health and safety concerns arising from an emergency.
7. Compliance with Laws. The HOA's rights hereunder shall be conditioned upon
the HOA's compliance with each and every federal, state and local law,
regulation, standard, court decision, ordinance, rule, code, order, decree,
directive, and guideline, together with any conditions and restrictions that are
recorded in any official or public records with respect to the Right of Way and
Median or any portion thereof, each as currently existing and as amended,
enacted, issued or adopted from time to time, that are applicable to the Permitted
Activities to be performed within the Median.
8. Indemnification.
8.1. Indemnification of the City by the HOA. The HOA shall defend, indemnify
and hold the City, its officials, officers, employees, and agents (the
"Indemnified Parties") free and harmless from any and all liability from
loss, damage, or injury to property or persons, including wrongful death, in
any manner arising out of or incident to acts, omissions, and/or operations
by the HOA, its officials, officers, personnel, employees, invitees, licenses,
guests, contractors, and/or subcontractors as well as its contractors'
and/or subcontractors' officials, officers, employees, and agents on or
about the Median, unless solely caused by the gross negligence or willful
misconduct of the City, its officers, employees, or agents. Further, the
HOA shall defend at its own expense, including reasonable attorneys'
fees, the Indemnified Parties in any legal action based upon such acts,
omissions and/or operations.
8.2. The HOA's Obligations. The HOA's obligations under this Section 8 shall
apply to all damages and claims for damages of every kind suffered, or
alleged to have been suffered, regardless of whether or not the City has
prepared, supplied, or approved any plans or for the uses allowed by this
Agreement, and regardless of whether or not such insurance policies shall
have been determined to be applicable to any of such damages or claims
for damages.
8.3. The City's Rights. The City does not and shall not waive any rights against
the HOA that the City may have under the indemnification provision in this
Section 8 because of the City's acceptance of any security deposits or
insurance policies.
8.4. Survival. The indemnification provision in this Section 8 shall survive the
termination or expiration of this Agreement.
9. Insurance. The HOA shall maintain and provide commercial general liability
insurance, with coverage at least as broad as Insurance Services Office form CG
00 01, in an amount not less than $1,000,000 per occurrence, $2,000,000
general aggregate, for bodily injury, personal injury, and property damage. All
insurance policies shall be issued by an insurance company that is currently
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authorized by the Insurance Commissioner to transact business of insurance or
that is on the List of Approved Surplus Line Insurers in the State of California,
with an assigned policyholders' Rating of A- (or higher) and Financial Size
Category Class VII (or larger) in accordance with the latest edition of Best's Key
Rating Guide. Grantee shall also maintain Worker's Compensation Insurance for
its employees in accordance with the laws of the State of California, Section
3700 of the Labor Code. A certificate of insurance evidencing the HOA's required
coverages shall be provided to the City prior to the start of any Permitted
Activities under this Agreement. The City is to be named as an additional insured
with an endorsement in favor of the City. The HOA agrees to oblige its insurance
agent or broker and insurers to provide City with a thirty (30) day notice of
cancellation (except for nonpayment for which a ten (10) day notice is required)
or nonrenewal of coverage for each required coverage.
10. Insurance Indemnifications and Release:
Prior to the commencement of any work pursuant to this contract, HOA (if
performing work itself) or HOA contractors shall furnish to City satisfactory
evidence of an insurance policy written upon a form and by a company (which
meets with the approval of City) insuring City, its officers, agents, and employees
against loss or liability which may arise during the work or which may result from
any of the work herein required to be done, including all costs of defending any
claim arising as result thereof.
10.1. Commercial General Liability
10.1.1. The HOA shall take out and maintain, during the
performance of all work under this Agreement, in amounts not less
than specified herein, Commercial General Liability Insurance, in a
form and with insurance companies rated A- VII or better by AM
Best.
10.1.2. Coverage for Commercial General Liability insurance shall
be at least as broad as the following:
10.1.2.1. Insurance Services Office Commercial General
Liability coverage (Occurrence Form CG 00 01) or exact
equivalent.
10.1.3. Commercial General Liability Insurance must include
coverage for the following:
a. Bodily Injury and Property Damage
b. Personal Injury/Advertising Injury
c. Premises/Operations Liability
d. Products/Completed Operations Liability
e. Aggregate Limits that Apply per Project
f. Explosion, Collapse and Underground (UCX) exclusion deleted
g. Contractual Liability with respect to this Contract
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h. Broad Form Property Damage
i. Independent HOA /Consultants Coverage
10.1.4. The policy shall contain no endorsements or provisions
limiting coverage for (1) contractual liability; (2) cross liability
exclusion for claims or suits by one insured against another; (3)
products/completed operations liability; or (4) contain any other
exclusion contrary to the Agreement.
10.1.5. The policy shall give City, its officials, officers, employees,
agents and City designated volunteers additional insured status
using ISO endorsement forms CG 20 10 10 01 and 20 37 10 01, or
endorsements providing the exact same coverage.
10.1.6. The general liability program may utilize either deductibles or
provide coverage excess of a self-insured retention, subject to
reasonable approval by the City, and provided that such
deductibles shall not apply to the City as an additional insured.
10.2. Automobile Liability
10.2.1. At all times during the performance of the work under this
Agreement, the HOA shall maintain Automobile Liability Insurance
for bodily injury and property damage including coverage for
owned, non -owned and hired vehicles, in a form and with insurance
companies rated A- VII or better by AM Best.
10.2.2. Coverage for automobile liability insurance shall be at least
as broad as Insurance Services Office Form Number CA 00 01
covering automobile liability (Coverage Symbol 1, any auto).
10.2.3. The policy shall give City, its officials, officers, employees,
agents and City designated volunteers additional insured status.
10.2.4. Subject to reasonable approval by the City, the automobile
liability insurance policy may require deductibles (but not a self-
insured retention), provided that such deductibles shall not apply to
the City as an additional insured. Automobile liability limits shall be
increased at the sole discretion of the City when lane closures are
required for traffic control.
10.3. Workers' Compensation/Employer's Liability
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10.3.1. HOA certifies that he/she is aware of the provisions of
Section 3700 of the California Labor Code which requires every
employer to be insured against liability for workers' compensation
or to undertake self-insurance in accordance with the provisions of
that code, and he/she will comply with such provisions before
commencing work under this Agreement.
10.3.2. To the extent HOA has employees at any time during the
term of this Agreement, at all times during the performance of the
work under this Agreement, the HOA shall maintain full
compensation insurance for all persons employed directly by
him/her to carry out the work contemplated under this Agreement,
all in accordance with the "Workers' Compensation and Insurance
Act," Division IV of the Labor Code of the State of California and
any acts amendatory thereof, and Employer's Liability Coverage in
amounts indicated herein. HOA shall require all
subconsultants/subcontractors to obtain and maintain, for the
period required by this Agreement, workers' compensation
coverage of the same type and limits as specified in this section.
10.4. Minimum Policy Limits Required
10.4.1. The following insurance limits are required for the
Agreement:
Commercial General Liability $1,000,000 per occurrence and in the
aggregate. $2,000,000 aggregate limit for products/completed operations.
Automobile Liability $1,000,000 combined single limit
Employer's Liability $1,000,000 per accident or disease
Worker's Compensation Statutory Limit
10.4.2. Defense costs shall be payable in addition to the limits.
10.4.3. Requirements of specific coverage or limits contained in this
section are not intended as a limitation on coverage, limits, or other
requirement, or a waiver of any coverage normally provided by any
insurance. Any available coverage shall be provided to the parties
required to be named as Additional Insured pursuant to this
Agreement.
10.5. Evidence Required
Prior to execution of the Agreement, the HOA shall file with the City evidence of
insurance from an insurer or insurers certifying to the coverage of all insurance
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required herein. Such evidence shall include original copies of the ISO CG 00 01
(or insurer's equivalent) signed by the insurer's representative and Certificate of
Insurance (Acord Form 25-S or equivalent), together with required
endorsements. All evidence of insurance shall be signed by a properly authorized
officer, agent, or qualified representative of the insurer and shall certify the
names of the insured, any additional insureds, where appropriate, the type and
amount of the insurance, the location and operations to which the insurance
applies, and the expiration date of such insurance.
10.6. Policy Provisions Required
10.6.1. HOA shall provide the City at least thirty (30) days prior
written notice of cancellation of any policy required by this
Agreement, except that the HOA shall provide at least ten (10) days
prior written notice of cancellation of any such policy due to non-
payment of premium. If any of the required coverage is cancelled or
expires during the term of this Agreement, the HOA shall deliver
renewal certificate(s) including the General Liability Additional
Insured Endorsement to the City at least ten (10) days prior to the
effective date of cancellation or expiration.
10.6.2. The Commercial General Liability Policy and Automobile
Policy shall each contain a provision stating that HOA's policy is
primary insurance and that any insurance, self-insurance or other
coverage maintained by the City or any named insureds shall not
be called upon to contribute to any loss.
10.6.3. The retroactive date (if any) of each policy is to be no later
than the effective date of this Agreement. HOA shall maintain such
coverage continuously for a period of at least three years after the
completion of the work under this Agreement. HOA shall purchase
a one (1) year extended reporting period A) if the retroactive date is
advanced past the effective date of this Agreement; B) if the policy
is cancelled or not renewed; or C) if the policy is replaced by
another claims -made policy with a retroactive date subsequent to
the effective date of this Agreement.
10.6.4. Worker's compensation insurance coverages shall contain or
be endorsed to waiver of subrogation in favor of the City, its
officials, officers, employees, agents, or shall specifically allow HOA
or others providing insurance evidence in compliance with these
specifications to waive their right of recovery prior to a loss. HOA
hereby waives its own right of recovery against City and shall
require similar written express waivers and insurance clauses from
each of its subconsultants/subcontractor.
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10.6.5. The limits set forth herein shall apply separately to each
insured against whom claims are made or suits are brought, except
with respect to the limits of liability. Further the limits set forth
herein shall not be construed to relieve the HOA from liability in
excess of such coverage, nor shall it limit the HOA's indemnification
obligations to the City and shall not preclude the City from taking
such other actions available to the City under other provisions of
the Agreement or law.
10.7. Qualifying Insurers
10.7.1. All policies required shall be issued by acceptable insurance
companies, as reasonably determined by the City, which satisfy the
following minimum requirements:
Each such policy shall be from a company or companies with a
current A.M. Best's rating of no less than A:VII and admitted to
transact in the business of insurance in the State of California, or
otherwise allowed to place insurance through surplus line brokers
under applicable provisions of the California Insurance Code or any
federal law.
10.8. Additional Insurance Provisions
10.8.1. The foregoing requirements as to the types and limits of
insurance coverage to be maintained by HOA, and any approval of
said insurance by the City, is not intended to and shall not in any
manner limit or qualify the liabilities and obligations otherwise
assumed by the HOA pursuant to this Agreement, including but not
limited to, the provisions concerning indemnification.
10.8.2. If at any time during the life of the Agreement, any policy of
insurance required under this Agreement does not comply with
these specifications or is canceled and not replaced, City has the
right but not the duty to obtain the insurance it deems necessary
and any premium paid by City will be promptly reimbursed by HOA
or City will withhold amounts sufficient to pay premium from HOA
payments. In the alternative, City may cancel this Agreement.
10.8.3. The City requires evidence that the HOA and their
Subcontractors have insurance policies in effect throughout the
duration of the Project, and the City is named as an additional
insured.
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10.8.4. Neither the City nor any of its officials, officers, employees,
agents or volunteers shall be personally responsible for any liability
arising under or by virtue of this Agreement.
10.9. Subcontractor Insurance Requirements.
HOA shall not allow any subcontractors or subconsultants to commence work on
any subcontract until they have provided evidence satisfactory to the City that
they have secured all insurance required under this section. Policies of
commercial general liability insurance provided by such subcontractors or
subconsultants shall be endorsed to name the City as an additional insured using
ISO form CG 20 38 04 13 or an endorsement providing the exact same
coverage. If requested by HOA, City may approve different scopes or minimum
limits of insurance for particular subcontractors or subconsultants.
Said policy shall be in favor of HOA or its contractors and of the City, its officers,
agents, and employees and shall be maintained in full force and effect during the
life of this Agreement, including extensions. Said policy shall state by its terms
and by an endorsement that it shall not be canceled until City shall have had at
least ninety (90) days' notice in writing of such cancellation.
11. Liability of HOA:
12. The HOA hereby agrees to defend, indemnify and hold the City, its elected
and appointed officials, officers, employees, and agents harmless from and
against any and all injuries to and deaths of persons and injuries to property, and
all claims, demands, costs, loss, damage and liability, including liability arising
out of sudden, accidental, and gradual pollution events, howsoever the same
may be caused and whensoever the same may appear, resulting directly or
indirectly from the performance or nonperformance of any or all work to be done
in and upon the subject property and the premises adjacent thereto pursuant to
this Agreement, and also from any and all injuries to and deaths of persons and
injuries to property or other interests and all claims, demands, costs, loss,
damage, and liability, to the extent the same may be caused directly or indirectly
by the HOA, the HOA 's agents, employees, contractors, and subcontractors,
while engaged in the performance of said work.
The HOA agrees that the use for any purpose and by any person of any and all
of the streets, easements and improvements herein specified shall be at the sole
and exclusive risk of the HOA at all times prior to final acceptance by the City of
the completed Works of Improvement thereon and therein; provided that
acceptance by the City shall in no way eliminate or lessen any of the HOA's
obligations or undertakings contained in this Agreement.
13. Recordation. The HOA shall cause this Agreement to be recorded with the Office
of the Recorder of the County of Orange within thirty (30) days of receipt of
written City acceptance of the Sign and Landscaping in the Median.
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14. Amendment. This Agreement may be amended, in whole or in part, only by a
written instrument executed by the Parties in the same manner as this
Agreement and recorded pursuant to Section 10. No supplement, modification,
and/or amendment of this Agreement shall be binding unless executed as
provided in this Section 11.
15. Cancellation. The Parties may terminate this Agreement by amending it in
accordance with Section 11. Either Party shall have the right to unilaterally
terminate this Agreement with or without cause by giving the other Party 30 days'
advance written notice of termination.
16. Notices. All notices to be given hereunder shall be in writing and may be made
either by personal delivery (effective as of the same day as delivery), nationally
recognized overnight delivery (effective as of the following business day), or by
registered or certified mail, postage prepaid, return receipt requested (effective
as of three (3) business days after deposit into the U.S. mail). Mailed notices
shall be addressed to the parties at the addresses listed below, but each party
may change the address by written notice in accordance with this Section 13.
To City: To HOA:
City of San Juan Capistrano PEPPERTREE BEND
32400 Paseo Adelanto ASSOCIATION
San Juan Capistrano, CA 92675 1900 E. Warner Ave., #'1 P
Attn: City Manager Santa Ana, CA 90705
Attn: Evonne Morton
17. Attorneys' Fees. If any legal action or proceeding arising out of or relating to this
Agreement is brought by either party to this Agreement, the prevailing party shall
be entitled to receive from the other party, in addition to any other relief that may
be granted, the reasonable attorneys' fees, costs, and expenses incurred in the
action or proceeding by the prevailing party.
18. Governing Law and Venue. This Agreement shall be governed by the laws of the
State of California. Venue shall be in Orange County.
19. No Waiver. The City's failure to insist upon strict compliance with any provision of
this Agreement or to exercise any right or privilege provided herein, or the City's
waiver of any breach hereunder, shall not relieve the HOA of any of its
obligations hereunder, whether of the same or similar type. The foregoing shall
be true whether the City's actions are intentional or unintentional. Further, the
HOA agrees to waive as a defense, counterclaim, or setoff any and all defects,
irregularities, or deficiencies in the authorization, execution, or performance of
this Agreement as well as any laws, rules, regulations, ordinances, or resolutions
of the City with regard to this Agreement.
20. Construction, References, and Captions.
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20.1. Simple Construction. It being agreed the Parties or their agents have
participated in the preparation of this Agreement, the language of this
Agreement shall be construed simply, according to its fair meaning, and
not strictly for or against any Party.
20.2. Section Headings. Section headings contained in this Agreement are for
convenience only and shall not have an effect in the construction or
interpretation of any provision.
20.3. Calendar Days. Any term referencing time, days, or period for
performance shall be deemed calendar days and not work days.
21. Entire Agreement. This Agreement contains the entire Agreement of the parties
with respect to the subject matter hereof, and supersedes all prior discussions,
negotiations, understandings or agreements, either written or oral, express or
implied. No alteration or variation of this Agreement shall be valid or binding
unless made in writing and signed by the parties hereto.
22. Severability. The invalidity in whole or in part of any provision of this Agreement
shall not void or affect the validity of any other provision of this Agreement.
23. Third Parties. This Agreement is made and entered into for the sole protection
and benefit of the Parties and their successors and assigns, and no other person
or entity is a third -party beneficiary of, or has any direct or indirect cause of
action or claim in connection with the Agreement or any other related document
to which that person or entity is not a party.
24. Binding on Successors and Assigns. The covenants, benefits, restrictions, and
obligations contained in this Agreement shall be deemed to run with the land and
shall be binding upon and inure to the benefit of all successors and assigns in
interest of the HOA.
25. Authority. If the HOA signs as a corporation or a partnership, each of the persons
executing this Agreement on behalf of the HOA does hereby covenant and
warrant that such entity is a duly authorized and existing entity, that such entity
has and is qualified to do business in California, that the HOA has full right and
authority to enter into this Agreement, and that each and all of the persons
signing on behalf of the HOA are authorized to do so. Each party represents and
warrants to the other that the execution and delivery of this Agreement and the
performance of such party's obligations hereunder have been duly authorized
and that the Agreement is a valid and legal agreement binding on such .parties
and enforceable in accordance with its terms.
26. Signatures. This Agreement may be signed and dated in parts.
Signatures on next page.
13
4849-6082-5077, v.1
61147.00310\40426060.2
SIGNATURE PAGE TO
�L�Od�ft'g,{rj: MAINTENANCE AGREEMENT
BY AND BETWEEN THE CITY OF SAN JUAN CAPISTRANO
AND erPP F,� 77R F25-
��o/tj .Z� o W/IUCK.55 ' .4,006TI4T�revv
In witness thereof, the Parties here to have executed this Agreement:
City of San Juan Capistrano
y�
City,Manger
ATTEST
I
By:
City Clerk
APPROVED AS TO FORM:
By:
City Att me
HOA
PEPPERTREE BEND ASSOCIATION
a California nonprofit mutual benefit
corporation
By:
Its:
By:
Its:
Signed in Counterpart
14
4849-6082-5077, v. 1
61147.00310\40426060.2
PUBLIC AGENCY FORM OF ACKNOWLEDGEMENT
A notary public or other officer completing this certificate
verifies only the identity of the individual who signed the
document, to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California )
County of Orange ) ss.
City of San Juan Capistrano )
(Gov't Code 40814 & Civil Code 118 1)
On March 14, 2023, before me, Maria Morris, City Clerk, personally appeared
Beniamin Siegel, City Manager and Jeffrey Ballinger, City Attorney, who proved to me on the
basis of satisfactory evidence to the be person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity (ies), and that by his/her/there signature on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
(SEAL)
Capacity Claimed by Signers
City Manager
City Attorney
Title
Signer is Representing
City of San Juan Capistrano
OPTIONAL
Description of Attached Document
Title or Type of Document
Encroachment and Maintenance Agreement
Peppertree Bend HOA
Construction and Maintenances of Monument Sign
within ROW
64(AX M $ SIGNATURE PAGE TO
I=ArN )St"A `E MAINTENANCE AGREEMENT
BY AND BETWEEN THE CITY OF SAN JUAN CAPISTRANO
AND ?�P�FK?� � ge-luD
N DM E -OW N.C/2$' ,# 55 oG.,l of 7,4-0.A)
In witness thereof, the Parties here to have executed this Agreement:
City of San Juan Capistrano
By:
City Manager
HOA
PEPPERTREE BEND ASSOCIATION
a California nonprofit mutual benefit
corporation
By:
Print Name: 0 Af C)A)
Signature:
Its: AoA- e. __c-- q.& TA
ATTEST:
By:
City Clerk
APPROVED AS TO FORM:
By:
City Attorney
By:
Print Name:
Signature:
Its:
Signed in Counterpart
14
4849-6082-5077, v. 1
61147.00310\40426060.2
ALL- PURPOSE
CERTIFICATE OF ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the
identity of the individual who signed the document to which this certificate
is attached, and not the truthfulness, accuracy, or validity of that document.
State of California
County of Orange }
On ���, ��},� before me, F. Rodriguez Hernandez Notary Public
(Here insert name and title of the officer)
personally appearedEvnn08 V $ Qvl
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
F. ODRIGUEZ HERNANDEZ
WITNE my n and official seal. ZO-01Public �iifnrn;a
-I Orange County
Commission X 2393721
My Comm. Expires Mar 10, 2026
nature (Notary Public Seal)
AL OPTIONAL INFORMATION
DESCRIPTION OF THE ATTACHED DOCUMENT
(Title or description of attached document)
(Tie r description of attached document continued)
Number of Pages Document Date
CAPACITY CLAIMED BY THE SIGNER
❑ Individual (s)
❑ Corporate Officer
(Title)
❑ Partner(s)
❑ Attorney -in -Fact
❑ Trustee(s)
❑ Other
2015 Version www. Not@ryClasses, corn 800..873-9865
INSTRUCTIONS FOR COMPLETING THIS FORM
This form complies with current California statutes regarding notary wording and,
if needed, should be completed and attached to the document Acknolwedgents from
other states may be completed for documents being sent to that state so long as the
wording does not require the California notary to violate California notary lair.
• State and County information must be the State and County where the document
signer(s) personally appeared before the notary public for acknowledgment.
• Date of notarization must be the date that the signer(s) personally appeared which
must also be the same date the acknowledgment is completed.
• The notary public must print his or her name as it appears within his or her
commission followed by a conuna and then your title (notary public).
• Print the name(s) of document signer(s) who personally appear at the time of.
notarization.
• Indicate the correct singular or plural forms by crossing off incorrect forms (i.e.
lie/she/they, is /are ) or circling the correct forms. Failure to correctly indicate this
information may lead to rejection of document recording.
• The notary seal impression must be clear and photographically reproducible.
hnpression must not cover text or lines. If seal impression smudges, re -seal if a
sufficient area permits, otherwise complete a different acknowledgment form.
• Signature of the notary public must match the signature on file with the office of
the county clerk.
Additional information is not required but could help to ensure this
acknowledgment is not misused or attached to a different document.
Indicate title or type of attached document, number of pages and date.
Indicate the capacity claimed by the signer. If the claimed capacity is a
corporate officer, indicate the title (i.e. CEO, CFO, Secretary).
• Securely attach this document to the signed document with a staple.
EXHIBIT A
SIGN PLANS AND PROPOSED HARDSCAPE IMPROVEMENTS
A-1
4849-6082-5077, v.1
61147.00310\40426060.2
36"
Pacific
24422 Uel Prado, Ste 2
Dana Point, CA 92629
949.2.48.7474
All artwork & designs are
the exclusive property of
Pacific Sign Center.
Unauthorized use of artwork
or designswithout the written
permission from
Pacific Sign Center
may result in legal action.
Project
Peppertree Bend HOA
Sign Type
Monument Sign Panel
Sign Notes:
- 16" deep S/F Monument Sign
- CMU with river rock stone face/back
- Tile cap and base
SIGN:
- 114" reverse cut-out aluminum plate
- Painted rust powdercoat
- White aluminum backer panel
- Blind stud mount
Draft Created By Draft # Design Approval
Ohan Filhanessian 3
Client Sales Person I Approval Date
i
Stan Braden !'
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EXHIBIT B
SANTA MARGARITA WATER DISTRICT ENCROACHMENT PERMIT NO. 22-020
4849-6082-5077, v. 1
61147.00310\40426060.2
2, 3 LULL
Submit Application to: Engcounter@smwd.com or call 949.459.6505
Watera Disfaict 22-020
26111 Antonio Parkway ENCROACHMENT PERMIT No °
Rancho Santa Margarita, Ca 92688
Applicants Please Complete Items 1-7, Read and Initial at the Bottom of Wage 2
1. Location of work
.'GL 7 fs rt ti
Tract: Lot: Est. Start Date: `?� ,, ,` ,z- Est. Completion Date: .)d-7,-
2. Property Owner: 'Z /Adess: City:
3. Applicant&r ? i --z Address: �. � J< •.�. _City:, .� c—�.. tri
6'(1114,1mail: �� ISL;
Contact: r `�f �� .S :� i F_ <_-_ Phone: ) r u j//°
C_,X
4. Required Documents 5. This work effects: (Choose All Applicable)
al Set of Plans & Paving Schedule ❑ Domestic Water ❑ Non -Domestic
[]Copy of Liability Insurance Certificate ❑ Sewer ❑SMWD Easement ❑
[320 Fee {{
Of Work:
6. Description G++,.4
rh _�
Permittee shall contact SMMWD Inspection (i� 949/459-6505 and DizAlert 'tai) 811 at least 2 days prior to
commencing any work. Failure to obtain proper inspection may cause permit refection. This permit and approved
plans must be on the job and available to District>•ep s tatives at all times. In consideration of granting this
permit the applicant acknowledges that he ha§ r`6ad and grees to all the terms and conditions attached to this
form. 7. / : ' / f /_: = -----._ Date:
SMWD Use: Permit Fee S$320 Issue Date: 04/25/22 Expires: 10/25/22 CE Approvalf'ablo Marti
8. Special Conditions of Approval:
Pothole existing water and sewer utilities. Protect water and sewer utilities in place. Existing water and sewer plans have
been attached to this EP as reference.
Provide 12" minimum vertical clearance from bottom of footing to conflicting utility (if applicable).
This permit is only for the sign monument that have been submitted on the attached plans. It is prohibited to install other
facilities above or near SMWD (District) facilities without District's approval through an additional Encroachment Permit.
If the District needs to access the water/sewer utilities for any reason (e.g. repair of sewer/water main, installation of new
facilities, etc.), the District may need to demolish the proposed monument. The District is not responsible for damage to
or replacement of the improvements to be installed by the permittee (applicant).
A pre -construction meeting must be scheduled with the property permittee, contractor, and inspector prior to
commencing work. A post -construction meeting must be scheduled with the inspector after all above ground work has
been completed, unless otherwise noted by the SMWD inspector.
�j Certificate of inspection:
T:::Inspection Assigned to 4 i hereby certify that the work allowed by this
7permit has been constructed according to the
Date Remarks plans and specifications and i hereby accept the
work in this manner.
I By:__Date:
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Encroachment Permit Terms and Conditions
1. By acceptance of this permit, permittee acknowledges and assumes all responsibility for compliance with
requirements of other regulatory governing agencies including but not limited to zoning regulations, applicable
ordinances and laws, etc. of the County of Orange, the State of California, or others having regulatory control over
the use granted herein.
Z. Should any damage or injury to District facilities occur, either through the acts of agents, servants or employees of
Pennittee or by any independent contractor of Permittee in the exercise of the rights herein granted, Permittee shall
immediately, upon the written demand of District, restore such works to the condition of same on the date of the
occurrence of said damage or injury at Permittec's cost or expense. Any questions as to whether or not any such
damage or injury has been caused to District Facilities shall be determined by the Chief Engineer of the District and
the determination shall be final.
3. District reserves the right unto itself to perform any work upon any portion or all of the area covered by this permit,
or to do any other work necessary at any time. Such work may be performed without incurring any liability of any
nature whatsoever to the Permittee. It is further understood and agreed that District reserves unto itself the right of
ingress over any or all portions of the subject area.
4. Permittee further agrees that all operations within District Property and/or easements shall be subject to inspection
and/or review at any time by District personnel and/or or any other authorized persons under District control. All
work is to be done to the satisfaction of the District Inspector.
5. This permit may be immediately revoked for reasons in the best interest of the District including violation of permit
provisions or other applicable rules and regulations or for the creation of a nuisance upon notice given by the Chief
Engineer of the District or authorized representative. In the event of such revocation, Permittee shall immediately
cease all operations and restore District Property and/or easements as directed by assigned inspector.
6. Pennittee agrees to perform all work in accordance with the Standard Specifications for Public Works Construction
(latest edition); Standard Special. Provisions and Standard Drawings of the District; special provisions; and all
applicable laws and ordinances.
7, Permittee agrees that the work site shall be kept clean and free of rubbish, debris and dust throughout all phases of
construction.
8. District will provide inspection during normal working hours only (7:00 a.m. - 3:30 p.m., Monday — Friday).
4. 'T'renches exceeding five (5) feet in depth require a permit fi-om the Divisions of industrial Safety, State of California.
10. Permittee shall pay for all Structural Engineer compaction and materials tests deemed necessary by the District.
11. Access to fire hydrants shall be maintained at all times.
12. Permittee agrees to save District, including its officers, agents or employees, harmless from any and all penalties,
liabilities or loss resulting from claims or court actions, arising directly or indirectly out of any damage or injury to
person or property by reason of the acts or omissions of Permittee, its agents, employees or independent contractors,
in exercising any of the privileges herein granted or in consequence thereof.
13. Pennittee shall contact the District's inspector for final inspection prior to the finalization of the permit and /or
release for occupancy.
July 2021
Applicant Initials:-' . r