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1997-0121_TOP NOTCH TREE SERVICE_Hold Harmless Agr• mquiyffl�„i .r THIS HOLD HARMLESS AGREEMENT is made this 21st day of January, 1997, by and between the SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY (hereinafter called the "Agency") and Mr. Rick Fodor, owner of "Top Notch Tree Service", located in Dana Point, California (hereinafter called "Fodor"). WITNESSETH: WHEREAS, Fodor maintains a storage operation for pre-cut firewood, trucks, and tree -trimming equipment on 1.62 acres of real property identified as Assessor Parcel Number 121- 253-13 within the City of San Juan Capistrano; and WHEREAS, after a review by staff it appears that the site is suitable for the aforesaid use and is consistent with the intended land uses established in the City's Land Use Code 9-3.423, Growth Management District; and WHEREAS, conditional approval has been granted administratively by the City Planning Director to use the site under a Temporary Use Permit; and WHEREAS, staff has determined that access to the site should be limited to a north - south roadway atop the levee of the Orange County flood control channel and an east -west road across Agency property; and follows: NOW, THEREFORE, it is hereby agreed by and between the parties hereto as Section 1. AGREEMENT TO USE. Agency agrees to allow Fodor to use the Agency -owned property to gain access to the County levee. Such access shall be strictly limited to that section of the property running east -to - west along the southern -most property he and having a width of fifty feet. It is understood that such access will be limited to daylight hours ("sunrise to sunset"). Section 2. TEMPORARY USE AND ACCESS. Fodor agrees that the permitted use, as well as ingress and egress to the site over Agency -owned property, are temporary and will cease at such time as this agreement expires or is terminated. 0 • Hold Harmless Agreement -2- January 21 1997 Section 3 TERMINATION OFAGREEMENT Agency may, without cause, terminate this agreement at any time. This agreement will terminate, without compensation, within 72 hours of notice provided to Fodor by the Agency. Notice of termination of this agreement shall be given in writing to Fodor and shall be considered complete when same is deposited in the U.S. Mail, First -Class postage prepaid. Section 4, EXPIRATION OF AGREEMENT Fodor and the City agree that this Hold Harmless Agreement will expire concurrently with the expiration date for the attendant Temporary Use Permit. Fodor aknowledges that the temporary, earthen ramp providing access to the site across Agency -owned property is unimproved and substandard. Section b. RESTORATION OF PROPERTY. Fodor agrees, at the end of the term of approved use, to restore the Agency -owned property described herein to the same condition it was in prior to his obtaining approval to access the site. Additionally, Fodor agrees to immediately repair any damage to the property, including but not limited to erosion, defoliation, or landform alteration, which results from periodic travel across the site. Section 7. INSURANCE. Fodor shall maintain, in full force, general comprehensive liability and property damage insurance in the sum of ONE MILLION DOLLARS ($1, 000, 000) per occurrence. Fodor shall provide an endorsement to Agency establishing that Agency has been legally added as an additional insured. Fodor agrees to hold the Agency, its elected and appointed officials, employees and agents, harmless from any claims or liability whatsoever arising out of Fodor's use of Agency owned land to gain access to the County levee while conducting business on behalf of Top Notch Tree Service. Hold Harmless Agreement -3- January 21 1997 Section 9. INDEMNITY Fodor shall be responsible for all injuries to persons and for damages to real or personal property of Agency, caused by or resulting from any activity or operation of Top Notch Tree Service, its employees or its agents during the progress of or connected with the rendition of services hereunder. Fodor shall defend and hold harmless and indemnify Agency and all officers and employees of the Agency from all costs and claims for damages to real or personal property or personal injury to any third party resulting from the activity of itself, employees or its agents. IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first above written. SAN APPROVED AS TO FORM: 4 Pk# Richard K. Denhalter �� X97 Agency Counsel CAWP WIN60\CORRENnTOPNOTCH.HHA Rick Fodor dba U AGENCY Top No Tree Se 'ce By: Director its: ('J Yv v-� P !^ E MEMORANDUM TO: Memo to File FROM: Dawn M. Schanderl, Deputy City Clerk DATE: July 15, 1997 SUBJECT: Topnotch Insurance F Per conversation this morning with Mary Laub, Management Analyst II, Mary has been informed by the City Manager's office not to pursue insurance required by contract for Topnotch. 0 0 MEMORANDUM May 13, 1997 TO: Tom Tomlinson, Planning Director FROM: Mary Laub, Management Analyst II SUBJECT: Top Notch Tree Services: Contract Insurance Requirements The CRA has an agreement with Top Notch Tree Services which requires Top Notch to provide verification of insurance coverage. They are to provide verification of general liability coverage, a general liability policy endorsement and verification of worker's compensation for all employees and/or volunteers. Top Notch has not complied with these requirements and should not be conducting activities under the executed contract until such time as the insurance verifications are in place. Please contact Top Notch and require them to cease activities until the insurance is in place. ML cc: Cin y Pendleton awn Schanderl Douglas Dumhart $ R 's m� gni Imnrmmn E I" or vw MA' cnrissmo• San Juan Capistrano Community Redevelopment Agency January 24, 1997 Rick Fodor Top Notch Tree Service 33855 ElEncanto Dana Point, California 92629 Re: Hold Harmless Agreement Dear Mr. Fodor: At their meeting of January 21, 1997, the Sa OcIal I �OVIOLlai IU VUIIIF[ IUI IILy RCUCVCIUIJIIICI IL Agency Board of Directors approved a Hold Harmless Agreement, as required by your Temporary Use Permit to store pre-cut firewood, trucks and tree -trimming equipment on property located north of Stonehill Drive between the levee and the railroad tracks. A fully - executed copy of the Agreement is enclosed for your files. The Agreement requires general liability insurance in the amount of $1,000,000 and endorsement form establishing the Agency as an additional insured. State law requires Workers Compensation. The Agency has not received the required insurance. I am enclosing a Liability Endorsement Form for your use in meeting that particular requirement. Please feel free to contact Dawn Schanderl, Deputy City Clerk at 443-6310, if you have any questions regarding the insurance requirements. Very truly yours, Cheryl Joh on Agency Secretary Enclosure cc: Deputy Director 32400 Paseo Adelanto San Juan Capistrano California 92675 714 - 493-1171 0 0 2. RECEIVE AND FILE WARRANTS OF DECEMBER 31 1996 (300.30) The List of Demands dated December 31, 1996, in the total amount of $7,083.31 was received and filed. 3. RECEIVE AND FILE CASH BALANCES BY FUND FOR NOVEMBER 1996 (330 50) The Finance Officer's Report of Cash Fund Balances for the month of November 1996 in the total amount of $47,001.48 was received and filed. 4. RECEIVE AND FILE FINANCE OFFICER'S REPORT OF INVESTMENTS AS OF DECEMBER 31. 1996(350.30) The Finance Officer's Report of Investments as of December 31, 1996, in the total amount of $1,285,157.54 was received and filed. 1� 5. APPROVAL OF HOLD -HARMLESS AGREEMENT FOR TEMPORARY USE PERMIT 96-06 FOR ACCESS TO STORAGE SITE ACROSS PROPERTY OWNED BY COMMUNITY REDEVELOPMENT AGENCY - STONEHILL DRIVE TOP NOTCH TREE SERVICE) (600.40) T As set forth in the Report dated January 21, 1997, from the Deputy Director, the Hold Harmless Agreement was approved, in satisfaction of Condition 3 of Temporary Use Permit 96-06, between the Agency and Top Notch Tree Service to permit access for the storing of pre-cut firewood, trucks, and tree -trimming equipment on 1.62 acres of Agency -owned property located just north of Stonehill Drive. The Executive Director was authorized to execute the Agreement on behalf of the Agency. BOARD ACTIONS None. CLOSED SESSION (610.85) The Board recessed to the Council meeting at 8:07 p.m, and reconvened in Closed Session at 8:27 p.m. for: Conference with Real Property Negotiator per Government Code Section 54956.8 for property known as Assessor's Parcel Nos. 121-240-020 and 121-240-139, with Tarr as the negotiating party, to consider price and terms of payment, 2. Conference with Legal Counsel, Existing Litigation, per Government Code Section 54956.9(a), for the case known as McLaughlin, et al v. San Juan Capistrano, et al; and CRA Minutes -2- 1/21/97 0 0 AGENDA ITEM January 21, 1997 TO: George Scarborough, Executive Director FROM: Tom Tomlinson, Deputy Director SUBJECT: Consideration of a Hold Harmless Agreement for Temporary Use Permit (TUP) 96-06, Top Notch Tree Service; for access to a storage site across property owned by the San Juan Capistrano Community Redevelopment Agency (Stonehill Drive). RECOMMENDATION By Motion: approve the Hold Harmless Agreement as required by Condition 3 of Temporary Use Permit (TUP) 96-06. SITUATION A. Applicant Rick Fodor/Top-Notch Tree Service. 33855 El Encanto Dana Point, California 92629 B. Summwry and Recommendation Mr. Rick Fodor, representing Top -Notch Tree Service, has an approved Temporary Use Permit (TUP 96-06) to store pre-cut firewood, trucks, and tree -trimming equipment on 1.62 acres of property located just north of Stonehill Drive, between the levee and railroad tracks. The site is designated as APN #121-253-13. The use involves approximately one acre dedicated to the storage of firewood with the remainder used as a parking area for five large trucks. As a condition of approval, the applicant was required to secure access to Stonehill Drive from the Orange County Flood Control District. Due to the topography of the site, it will also be necessary to use a portion of the Agency's property (Lower Rosan) to comply with this condition. Access will be limited to a north -south roadway atop the levee of the Orange County Flood Control channel and a secured easement east -west across Community Redevelopment Agency property. Staff recommends that the City Council approve the Hold Harmless agreement, which is a condition of approval for the proposed project, which would allow access over Agency property to the Orange County Flood Control access road. (Attachment 1, Draft Hold Harmless Agreement). FOR CITY COUNCIL AGEND 8-6 0 0 CC Agenda -2- January 21 1997 C. Back rg ound The Top Notch Tree Service has maintained a storage operation on this site for the past two years. Approximately seven months ago, residents in a nearby mobile home park complained that noise and dust were being produced in the area and they asked City code enforcement staff to investigate. This revealed the presence of the storage yard and other uses being conducted on the property. The current use by Top Notch Tree Service represents a use similar to that permitted under present zoning. After discussions with planning staff regarding Code compliance, Mr. Fodor presented an application for a Temporary Use Permit which was approved by the Planning Director on July 19, 1996. All other uses not complying with the zoning have been discontinued or are in the process of being discontinued from the site. 1. General Plan Designation: "4.1, Quasi -Industrial". 2. Zoning Designation: "GM", "Growth Management". 3. Environmental Processing: The Environmental Administrator has determined that the project is a ministerial action (Section 15300.1) subject to the approval of the Planning Director and has issued a Categorical Exemption (Attachment 2, Categorical Exemption). 4. Community Redevelopment Agency: The project is not within the Community Redevelopment Agency project area. It is adjacent to CRA -owned Lower Rosan Ranch. The Temporary Use Permit recommends that the applicant utilize a portion of Agency property to access the OCFCD levee for ingress and egress. This right to access does not impede the Agency's use or plans for its property. The Hold Harmless Agreement is revokable at any time with notice. 5. Prior Entitlements: On March 1, 1994, the City Council approved Capital Improvement Project (CIP) 94-C30, a Mitigated Negative Declaration with conceptual grading and improvement plans for the construction of an access road (Paseo Alagar) from Stonehill Drive to the Lower Rosan Ranch site. On July 19, 1996, the Planning Director administrative approved a Temporary Use Permit (TUP 96-06), with conditions, to store firewood and tree -trimming equipment on the site. 6. Commission/Board Review: None. 0 0 CC Agenda -3- January 21 1997 E. Issues Staff analysis focused on issues of right-of-way across property owned by the County of Orange and the San Juan Capistrano Community Redevelopment Agency. F. Staff Analysis The applicant currently maintains legal access to the property via a private easement over the Southern California Regional Rail Authority (SCRRA) railroad. In light of recent complaints by local residents regarding noise and dust in the area, planning staff determined that the applicant should use an alternative method of gaining access to the property. The most practical option involves routing trucks and equipment north along the access road atop the Orange County flood control levee and eastward across property owned by the Community Redevelopment Agency. The applicant will need to obtain permission from both the County and Agency to access the site. The applicant, through discussion with the County Flood Control District, has received preliminary approval. The Temporary Use Permit was granted based on the following conditions of approval: The applicant's access to the property shall be restricted to use of the Orange County Flood Control access road and across the Community Redevelopment Agency property. 2. The applicant shall enter into and/or secure a public property encroachment permit from the County of Orange for rights to access the flood control levee. 3. The applicant shall enter into a Hold Harmless Agreement with the Community Redevelopment Agency for rights to use the agency propertyfor access to the levee. This agreement will be scheduled for Community Redevelopment Agency/City Council review following notification of adjacent property owners. Applicant shall coordinate with the Community Redevelopment Agency grading contractor for locks on the access gates. 4. Access shall be restricted to daylight hours only (sunrise to sunset). 5. All necessary agreements and permits from the City and the County of Orange shall be obtained as expeditiously as possible, but no later than September 3, 1996 6. This temporary use permit will expire one year from the approval date. Approval of the agreement would comply with Condition #3 of the TUP Approval. 0 CC Agenda -4- January 21, 1997 COMMISSIONBOARD REVIEW AND RECOMMENDATION None. FINANCIAL CONSIDERATION None. PUBLIC NOTIFICATION The public notice has been mailed to adjacent property owners pursuant to public notice requirements of the City Council Policy, Land Use Code Section 9-2.312(c). Copies of the staff report were mailed to the applicants and their representative. ALTERNATE ACTIONS 1, Approve the proposed Hold Harmless Agreement for Temporary Use Permit (TUP) 96-06, Top Notch Tree Service. 2, Deny the proposed Hold Harmless Agreement for Temporary Use Permit (TUP) 96-06, Top Notch Tree Service. 3, Continue the public meeting to a specific date and direct staff and/or the applicant to provide additional information on specific issues. RECOMMENDATION By Motion: approve the Hold Harmless Agreement referenced in Condition 3 of Temporary Use Permit (TUP) 96-06. Respectfully submitted, (W( (1�1 Thomas Tomlinson Planning Director C% JG:hs Attachments: Attachment 1, Draft Hold Harmless Agreement Attachment 2, Categorical Exemption Prepared by, John Grace Assistant Planner C: \WPW INWCURRENTITOPNOTCH. CCA 0 ® se NOTICE OF EXEMPTION city of san Juan Capistrano, california 0 Date Posted: 07-2-5-1(a Posting Removal: 0$- 25 4 b (30 days) 1. APPLICANT: Top -Notch Tree Service, Attn. Rick Fodor 2. ADDRESS: 33855 El Encanto, Dana Point, California 92629 3. PHONE NUMBER: (714) 240-2310 4. LEAD AGENCY/PROJECT MGR: City of San Juan CapistranoW_m Grace, Assistant Planner 5. PROJECT TITLE: Hold Harmless Agreement for Temporary Use Permit (TUP) 96-06, Top Notch Tree Service. 6. DESCRIPTION: The project consists of a hold harmless agreement to protect the City from potential liability associated with a private business accessing their site across CRA - owned property. Top -Notch Tree Service has received conditional approval of a temporary use permit to store pre-cut firewood, trucks, and tree -trimming equipment on 1.62 acres of property located just north of Stonehill Drive, between the levee and railroad tracks, designated as APN #121-253-13. Site access would be limited to a north -south roadway atop the levee of the Orange County Flood Control District (OCFCD) channel and via a secured easement east -west across Community Redevelopment Agency property. ADMINISTRATIVE DETERMINATION: The Planning Department staff have completed a preliminary review of this project in accordance with the City of San Juan Capistrano's adopted guidelines for implementing the California Environmental Quality Act (CEQA) of 1970. Based on that review, the Environmental Administrator finds that the proposed project could not possibly cause a significant effect on the environment. Therefore, the Environmental Administrator has determined that further environmental evaluation is not required because: [ ] The project does not constitute a "project" per CEQA (Section 15378); or, [ ] The project is ministerial (Section 15300.1); or, [ ] The project is a declared emergency (Section 15269); or, [ ] The project is categorically exempt, Class _, <name> (Section 15301-15329). [ ] The project is statutorily exempt, Section ( Section 15260-15277) [X] The project could not possibly cause a significant effect on the environment (Section 15061(6)(3)). - Date: July 25, 1996 William Ramsey, CP, Seniorer Environmental Coordinator (C:\WPWIN60\CP\TUP9606C.CE) ATTACHMENT 2