23-0801_GANAHL LUMBER_E14_Agenda ReportCity of San Juan Capistrano
Agenda Report
TO: Honorable Mayor and Members of the City Council
FROM: Benjamin Siegel, City Manager
SUBMITTED BY: Thomas Toman, Public Works Director
PREPARED BY: Joe Parco, P.E., City Engineer
Jeremy Hohnbaum, P.E., Senior Civil Engineer
DATE: August 1, 2023
SUBJECT: Landscape Maintenance Agreement Between the City and Ganahl
Lumber for Construction and Maintenance of Improvements Within
Public Right-of-Way Adjacent to The Ganahl Lumber Development,
Tract 18161 (Applicant: Ganahl Lumber Company, a California
Corporation); and, Finding Said Action is Categorically Exempt from
the California Environmental Quality Act Pursuant to State CEQA
Guidelines, Section 15301
RECOMMENDATION:
1.Approve and authorize the City Manager to execute a Landscape Maintenance
Agreement with Ganahl Lumber Company for the construction and maintenance
of landscape and irrigation improvements located within the public right-of-way
adjacent to Tract 18161;
2.Direct the City Clerk to record the Landscape Maintenance Agreement with the
County of Orange; and,
3.Find that the recommended action is categorically exempt from the California
Environmental Quality Act (CEQA) pursuant to State CEQA Guidelines, Section
15301.
8/1/2023
E14
City Council Agenda Report
August 1, 2023
Page 2 of 4
EXECUTIVE SUMMARY:
In December 2020 the Ganahl Lumber Company purchased the 17-acre City-owned
Lower Rosan property located at 25865 Stonehill Drive. A map showing the project’s
location is included as Attachment 1. As part of the project, landscape improvements
have been constructed adjacent to the southerly boundary of the tract, adjacent to
Stonehill Drive. The subject improvements are proposed to be maintained by the
developer under the provisions of the proposed Landscape Maintenance Agreement
(Attachment 2).
DISCUSSION/ANALYSIS:
On June 2, 2020, the City Council approved Tentative Tract Map (TTM) No. 18161 by
Resolution No. 20-06-02-03. On February 7, 2023, the City Council approved the Final
Tract Map No. 18161. Ganahl Lumber Company has substantially constructed the
project, including beginning off-site improvements (landscaping) within the public right-of-
way.
The exterior perimeter of the project site is being improved to enhance the aesthetic
appearance of the development. These improvements extend from the private
development onto the public right-of-way as shown in Exhibit A of the Landscape
Maintenance Agreement. The improvements will be maintained by the developer under
the provisions of the proposed agreement. Additionally, existing utilities have been
protected in place and will also be maintained by their respective owners. The subject
improvements have been approved and are permitted through the City’s Building
Department.
Consequently, staff recommends that the City Council approve and authorize the City
Manager to execute the proposed Landscape Maintenance Agreement and find that the
action is exempt from the California Environmental Quality Act.
FISCAL IMPACT:
The Public Works Department is currently responsible for the maintenance of public right-
of-way areas within the limits of the proposed Landscape Maintenance Agreement. With
approval of the proposed agreement, the developer would become the responsible party
for maintenance of this area, resulting in minor cost savings to the City with respect to
any irrigation, landscape, weed abatement, and tree trimming maintenance. Additionally,
Ganahl Lumber would be required to provide general liability insurance and name the City
as an additional insured on an annual basis.
City Council Agenda Report
August 1, 2023
Page 3 of 4
ENVIRONMENTAL IMPACT:
In accordance with the California Environmental Quality Act (CEQA) the recommended
action is categorically exempt from CEQA per Section 15301, Existing Facilities, and
specifically maintenance of existing landscaping. Establishing a maintenance agreement
with Ganahl Lumber to maintain improvements within the public right-of-way, previously
reviewed and approved through TTM No. 18161 (Final Environmental Impact Report
(SCH #2019050015)), is categorically exempt from CEQA.
PRIOR CITY COUNCIL REVIEW:
• On February 7, 2023, the City Council approved the Final Tract Map for Tract
No.18161 and authorized the City Engineer and the City Clerk to execute the Final
Tract Map for Tract No. 18161; and, directed the City Clerk and City Engineer to
execute and forward the Final Tract Map for Tract No. 18161 to the County of
Orange for recordation.
• On December 7, 2020, City Council approved Resolution 20-12-07-02 for the
Purchase and Sale Agreement with the City and Ganahl Lumber for the sale of the
Lower Rosan Property.
• On June 2, 2020, the City Council adopted three Resolutions related to the project:
Resolution 20-06-02-02 certified the project’s Final EIR, adopted a Mitigation
Monitoring Reporting Program and adopted CEQA Findings of Fact and Statement
of Overriding Considerations; Resolution 20-06-02-03 approved a Flood Plain
Land Use Permit and Tentative Tract Map; and, Resolution 20-06-02-04 approved
a Resolution of Intention declaring the City’s intent to sell the 17-acre City-owned
Lower Rosan property to Ganahl Lumber Company for development of the Ganahl
Lumber Project.
COMMISSION/COMMITTEE/BOARD REVIEW AND RECOMMENDATIONS:
• On May 20, 2020, the Planning Commission reviewed the project and
recommended certification of the EIR and approval of the project to the City
Council.
• On April 23, 2020, the Design Review Committee reviewed the proposed
development design plans and forwarded the project to the Planning Commission
for consideration with a recommendation of approval.
• On September 13, 2018, the Design Review Committee conducted a work session
to review the conceptual development design plans.
City Council Agenda Report
August 1, 2023
Page 4 of 4
NOTIFICATION:
Dan Delany, Ganahl
Joseph G. Truxaw L.S., Joseph C. Truxaw and Associates, Inc.
Interested Party Notification List
ATTACHMENT(S):
Attachment 1: Project Location Map
Attachment 2: Landscape Maintenance Agreement
Project Location Map
ATTACHMENT 1
ATTACHMENT 1, Page 1 of 1
RECORDING 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 & 6103
City of San Juan Capistrano
This Space for Recorder’s Use Only
Title of Document:
LANDSCAPE MAINTENANCE AGREEMENT
BY AND BETWEEN
THE CITY OF SAN JUAN CAPISTRANO
AND
GANAHL LUMBER COMPANY, A CALIFORNIA CORPORATION
REGARDING
TRACT NO. 18161
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LANDSCAPE MAINTENANCE AGREEMENT
BY AND BETWEEN THE CITY OF SAN JUAN CAPISTRANO
AND
GANAHL LUMBER COMPANY, A CALIFORNIA CORPORATION
REGARDING TRACT NO. 18161
PARTIES AND DATE
This Landscape Maintenance Agreement (“Agreement”) is made and entered into as of
by and between the City of San Juan Capistrano, a municipal
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 Ganahl Lumber Company, a California corporation, whose mailing address
is 1220 East Ball Road Anaheim, CA 92805 (collectively, “Owner”). The City and the
Owner are sometimes individually referred to as “Party” and collectively as “Parties” in
this Agreement.
RECITALS
A. The Owner is the Owner of that certain property located near the intersection of
Stonehill Drive and San Juan Creek, San Juan Capistrano, CA 92675 (Tract Map
No. 18161) (“Property”). The Property is intended for commercial development.
B. Adjacent to the Property and within public rights-of-way of Stonehill Drive are
landscaped areas (collectively, the “Landscape Area”). The Landscape Area is
highlighted in the Landscape Maintenance Area Map included as Exhibit A and
incorporated herein.
C. On June 2, 2020, the City of San Juan Capistrano City Council adopted
Resolution No. 20-06-02-03, which conditionally approved Tentative Tract Map
(“TTM 18161”). On February 7, 2023, the City Council approved the Final Map
for Tract 18161 and authorized it for execution and recordation.
D. The purpose of this Agreement to set forth the terms and conditions of the
installation and maintenance improvements within the public right of way and to
serve as the “Landscape Maintenance Agreement” required by the City.
TERMS
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 landscaping in the Landscape Area is complete and is accepted by
the City.
2. Term. The term of this Agreement shall run with the land until cancelled by the
City per Section 11.
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3.Landscape Maintenance. The Owner desires to install and maintain
improvements within the Landscape Areas as shown in Exhibit A. Said
improvements are associated with the Ganahl Lumber Project and include
irrigation and landscaping, hardscape, and a future monument sign (hereinafter,
“Permitted Activities” and the improvements themselves, the “Improvements”) as
required by the Entitlements and/or shown on the proposed improvement plans
under Building Permit numbers B20-0398 and B20-0400 (“Building Permit”), and
incorporated herein as well as in accordance with any other TTM 18161 condition
of approval. The Owner 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 Owner a non-exclusive right to
encroach upon the Landscape Area 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 Owner to complete City’s
Encroachment Permit Application if work within the public right of way
encroaches beyond the Landscape Area. If any work requires obstruction of the
pedestrian or vehicular access the Owner shall be required to complete and file
an Encroachment Permit and submit applicable traffic control plan(s) in
connection with conducting Permitted Activities within the sidewalk and/or street.
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 Owner 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. Coordination with Other Permittees. To the extent reasonably feasible and not
unduly interfering with the OWNER's obligations contained herein, the Owner
shall coordinate its Permitted Activities with other parties known by the Owner to
be working in the City’s public rights-of-way, including the sidewalk and/or street,
from time to time.
4.4. Standard of Care. The Owner 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 Owner or its agents, employees, volunteers and
contractors shall be replaced or repaired by the Owner at its sole expense to the
satisfaction of the City.
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4.5. Protection of Traffic. The Owner shall perform the Permitted Activities in the
manner that results in the least amount of traffic disruption. The Owner 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 Owner violate any provision of this Agreement or fail to
perform under this Agreement in any way, the City shall provide the
Owner with written notice describing the violation or failure to perform
(“Notice of Violation”).
5.1.2. The Owner shall diligently work to cure the violation within seven (7) 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 in the public right
of way will require an encroachment permit and traffic control measures as
needed before performing said work. Work performed by the Owner within
the public right of way shall only be performed by Contractors with
appropriate State License. Owner will be responsible for 100% of the
repair costs within Landscape Areas including any repair costs within
public property, the public right of way, or adjacent private property that
are caused or created by infrastructure and/or improvements on the
Owner’s Property and/or Landscape Areas.
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,
compliance with the Multiple Separate Storm Sewer System (MS4) Permit,
and/or damage to adjacent public or private property, the Owner shall
diligently work to cure the violation or correction within 24 hours of
notification from City.
5.2. City Performance.
5.2.1. If the Owner fails to cure any violation or correction per Section 4.1.2 or
4.1.3, then, at the Owner’s sole expense, the City may undertake to
perform the Owner’s obligations by providing written notice to the Owner.
5.2.2. The City shall invoice the Owner for the City’s costs to perform the
obligations. The Owner shall pay the City’s invoice within thirty (30) days
of the City’s issuance of the invoice.
5.3. Lien. If the Owner fails to cure any violation per Section 5.1 or fails to pay the
City’s invoices per Section 5.2, then the City has the right to establish and
enforce a lien or other encumbrance against the Property to recover.
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6. Indemnification.
6.1. Indemnification of the City by the Owner. The Owner 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 illness and/or wrongful death, in any manner to
the extent arising out of or incident to acts, omissions, and/or operations by the
Owner, its officials, officers, personnel, employees, invitees, licensees, guests,
contractors, and/or subcontractors as well as its contractors’ and/or
subcontractors’ officials, officers, employees, and agents. Further, the Owner
shall defend at its own expense, including attorneys’ fees, the Indemnified
Parties in any legal action to the extent such action arises from or is in any way
connected with such acts, omissions and/or operations.
6.2. The Owner’s Obligations. The Owner’s obligations under this Section 6 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 any insurance policies shall have been determined to be
applicable to any of such damages or claims for damages.
6.3. The City’s Rights. The City does not and shall not waive any rights against the
Owner that the City may have under the indemnification provision in this Section
6 because of the City’s acceptance of any security deposits or insurance policies.
6.4. Survival. The indemnification provision in this Section 6 shall survive the
termination or expiration of this Agreement.
7. Insurance. The Owner 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
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 Owner’s
required coverages shall be provided to the City prior to the start of any
Permitted Activities under this Agreement. The City of San Juan Capistrano, its
officials, officers, employees, and agents is to be named as an additional insured
with an endorsement in favor of the City. The Owner 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.
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8. Insurance, Indemnifications and Release:
Prior to the commencement of any work pursuant to this contract, Owner (if
performing work itself) or Owner 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 officials, 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.
8.1. Commercial General Liability
8.1.1. The Owner 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.
8.1.2. Coverage for Commercial General Liability insurance shall be at least as
broad as the following:
Insurance Services Office Commercial General Liability coverage
(Occurrence Form CG 00 01) or exact equivalent.
8.1.3. 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
h. Broad Form Property Damage
i. Independent Owner /Consultants Coverage
8.1.4. 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.
8.1.5. 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.
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8.1.6. 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.
8.2. Automobile Liability
8.2.1. At all times during the performance of the work under this Agreement, the
Owner shall maintain Automobile Liability Insurance for bodily injury and
property damage including coverage for owned, non-owned, rented, and
hired vehicles, in a form and with insurance companies rated A- VII or
better by AM Best.
8.2.2. 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).
8.2.3. The policy shall give City, its officials, officers, employees, agents and City
designated volunteers additional insured status.
8.2.4. 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.
8.3. Workers’ Compensation/Employer’s Liability
8.3.1. Owner 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.
8.3.2. To the extent Owner has employees at any time during the term of this
Agreement, at all times during the performance of the work under this
Agreement, the Owner 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. Owner shall require all
subconsultants/subcontractors to obtain and maintain, for the period
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required by this Agreement, workers’ compensation coverage of the same
type and limits as specified in this section.
8.4. Minimum Policy Limits Required
8.4.1. 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
8.4.2. Defense costs shall be payable in addition to the limits.
8.4.3. 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.
8.5. Evidence Required
Prior to execution of the Agreement, the Owner shall file with the City evidence of
insurance from an insurer or insurers certifying to the coverage of all insurance 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.
8.6. Policy Provisions Required
8.6.1. Owner shall provide the City at least thirty (30) days prior written notice of
cancellation of any policy required by this Agreement, except that the
Owner 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 Owner shall deliver renewal certificate(s) including the
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General Liability Additional Insured Endorsement to the City at least ten
(10) days prior to the effective date of cancellation or expiration.
8.6.2. The Commercial General Liability Policy and Automobile Policy shall each
contain a provision stating that Owner’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.
8.6.3. The retroactive date (if any) of each policy is to be no later than the
effective date of this Agreement. Owner shall maintain such coverage
continuously for a period of at least three years after the completion of the
work under this Agreement. Owner 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.
8.6.4. 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 Owner or others providing
insurance evidence in compliance with these specifications to waive their
right of recovery prior to a loss. Owner 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.
8.6.5. 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 Owner from liability in excess of such coverage, nor shall it limit
the Owner’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.
8.7. Qualifying Insurers
8.7.1. 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.
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8.8. Additional Insurance Provisions
8.8.1. The foregoing requirements as to the types and limits of insurance
coverage to be maintained by Owner, 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 OWNER pursuant
to this Agreement, including but not limited to, the provisions concerning
indemnification.
8.8.2. 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 Owner or City will withhold amounts
sufficient to pay premium from Owner payments. In the alternative, City
may cancel this Agreement.
8.8.3. The City requires evidence that the Owner and their Subcontractors have
insurance policies in effect throughout the duration of the Project, and the
City is named as an additional insured.
8.8.4. 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.
8.9. Subcontractor Insurance Requirements.
8.9.1. Owner 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 of
San Juan Capistrano, its officials, officers, employees, and agents as an
additional insured using ISO form CG 20 38 04 13 or an endorsement
providing the exact same coverage. If requested by Owner, City may
approve different scopes or minimum limits of insurance for particular
subcontractors or subconsultants.
8.9.2. Said policy shall be in favor of Owner 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.
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9. Recordation. The Owner 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 landscaping in the Landscape Area.
10. 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 9. No supplement, modification,
and/or amendment of this Agreement shall be binding unless executed as
provided in this Section 10.
11. Cancellation. The City may cancel this Agreement if, at the City’s discretion, this
Agreement is no longer necessary to fulfil the purpose of the TTM 18161
Conditions of Approval.
12. Notices. All notices to be given hereunder shall be in writing and may be made
either by personal delivery or by registered or certified mail, postage prepaid,
return receipt requested. 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 12.
To City:
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Attn: City Manager
To Owner:
Ganahl Lumber Company
1220 E. Ball Road
Anaheim, CA 92805
Attn: Chief Financial Officer
13. 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.
14. Governing Law and Venue. This Agreement shall be governed by the laws of the
State of California. Venue shall be in Orange County.
15. 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 Owner 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
Owner 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.
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16. Construction, References, and Captions.
16.1. 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.
16.2. 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.
16.3. Calendar Days. Any term referencing time, days, or period for performance shall
be deemed calendar days and not workdays.
17. Entire Agreement. This Agreement contains the entire Agreement of the parties
with respect to the subject matter hereof, and supersedes all prior negotiations,
understandings or agreements, either written or oral, express or implied.
18. 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.
19. 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.
20. Binding on Successors and Assignment. 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
of the Owner. Owner shall be entitled to assign this Agreement to a
management association established for the Property, and, upon such
assignment, Owner shall be released from liability hereunder.
21. Authority. If the Owner sign as a corporation or a partnership, each of the
persons executing this Agreement on behalf of the Owner 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 Owner has full
right and authority to enter into this Agreement, and that each and all of the
persons signing on behalf of the Owner are authorized to do so.
22. Signatures. This Agreement may be signed and dated in parts.
Signatures on next page.
12
SIGNATURE PAGE TO
LANDSCAPE MAINTENANCE AGREEMENT
BY AND BETWEEN THE CITY OF SAN JUAN CAPISTRANO
AND GANAHL LUMBER COMPANY, A CALIFORNIA CORPORATION
REGARDING TRACT NO. 18161
In witness thereof, the Parties hereto have executed this Agreement:
City of San Juan Capistrano Owner
By: _____________________________
GANAHL LUMBER COMPANY, a
California corporation
By:
Benjamin Siegel, City Manager Daniel Delaney, Chief Financial Officer
ATTEST:
By: ____________________________ By: ______________________________
Maria Morris, City Clerk
Print Name:
Title:
APPROVED ASAS TOTO FORM:
By: _____________________________
Jeffrey S. Ballinger, City Attorney
13
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 )
On ________ __, 2022, before me, ____________________________________,
a Notary Public, personally appeared ______________________________________, 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.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature ______________________________
(SEAL)
B-1
EXHIBIT A
LANDSCAPE MAINTENANCE AREA MAP