17-1205_MOUNTAIN PINES CHRISTMAS TREE FARM_F21_Agenda ReportTO :
FROM :
SUBMITTED BY:
DATE :
SUBJECT:
City of San Juan Capistrano
Agenda Report
Honorable Mayor and Members of the City
~jamin Siegel, City Manager
Joel Rojas, Development Services Directo ~
December 5, 2017
12/5/2017
F21
Consideration of License Agreement with Mountain Pines
Christmas Tree Farm for the City-Owned Property Located on
Camino Capistrano (APN 650-023-08 and APN 650-023-09)
RECOMMENDATION:
Approve and authorize the City Manager to execute a ten-year License Agreement
(Attachment 1 ), with an additional ten-year option to renew, with Mountain Pines
Christmas Tree Farm for use of City-owned property located on Camino Capistrano
(APN 650-023-08 and APN 650-023-09).
EXECUTIVE SUMMARY:
Since 2006, the City has had License Agreements with Mountain Pines Christmas Tree
Farm ("Mountain Pines") to operate a Christmas Tree Farm and conduct Halloween
pumpkin sales on a 2.31-acre City-owned property. The current five-year License
Agreement was entered into in 2013 and is set to expire in March 2018. Mountain
Pines is seeking to extend the current Agreement for a longer term since they plan to
make several permanent improvements to the property at their expense. In addition,
Mountain Pines seeks to expand the scope of the new Agreement to include year-round
use of the property for community gardens and farmers markets. Mountain Pines has
been a very responsible operator, abiding by the current Agreement's terms, properly
maintaining the property and gradually increasing gross sales over the last few years.
As a result, staff is recommending that the City Council approve a new License
Agreement with Mountain Pines.
DISCUSSION/ANALYSIS :
The City acquired the subject property in 1992 as a remnant parcel that was part of the
Swanner House property acquisition. The property is located across the street from the
City Council Agenda Report
December 5, 2017
Page 2 of 4
Swanner House, between Camino Capistrano and the 1-5 Freeway, just north of
Trabuco Creek (Attachment 2). The property consists of two separate parcels, identified
as Area A and Area B in the Agreement, that total 2.31 acres in size. Area A is 2.04
acres and is the location of the Christmas Tree farm, Christmas Tree sales, and
Halloween pumpkin sales. Area B is 0.27 acres in size and functions solely as an
unpaved parking lot. The property is zoned General Open Space (GOS) and the 2006
Open Space Master Plan establishes policies consistent with continuation of a "tree
farm" use.
The subject property has operated as a Christmas Tree farm, under different owners
and operators, since the mid 1960s. Mountain Pines began their operations under a
License Agreement with the City in 2006. In 2008, the City Council approved a five-year
License Agreement with Mountain Pines, which extended the term through 2013. In
2010, the City Council assigned the Agreement to the current operators, Tom Tolmasoff
and Tanya Farmakis-Tolmasoff. In 2013, the City Council approved another five-year
Agreement (the current License Agreement), extending the term through March 2018.
Under the current Agreement (Attachment 3), Mountain Pines is allowed to operate a
Christmas Tree farm which provides live, fresh cut Christmas Trees during the holiday
season, and also a pumpkin patch during the fall season. Mountain Pines is also
permitted to grow strawberries, vegetables, run a vendor fruit stand and import cut trees
to supplement their inventory of trees grown on the property. Mountain Pines is required
to replant at least one quarter of the tree farm with new pine trees each year and pay all
operational costs, including water usage, for the farm use.
Given that the current Agreement is set to expire in March 2018, Mountain Pines is
seeking a new Agreement with an initial ten-year term and a ten-year extension option,
which would amount to a new twenty-year Agreement. Staff supports the proposed
long-term lease because it provides Mountain Pines with the surety to make several
permanent improvements to the City's property at no cost to the City. Specifically,
Mountain Pines proposes the following improvements within the next few years:
• Construction of a new barn to replace the current fruit stand. The barn would
serve as storage for vehicles and farm equipment, and include restrooms
(estimated cost: $75,000).
• Installation of a sound wall along the freeway to decrease freeway noise
(estimated cost: $18,000).
• Electrical/lighting upgrades (estimated cost: $15,000).
• Construction of a community garden area (estimated cost: $12,000).
• Landscape improvements, including new fruit trees, vegetable gardens, corn
fields and various other plants and flowers (estimated cost: $8,000).
Under the extended Agreement, Mountain Pines would be responsible for paying for all
application and permit fees and for all costs associated with construction of the
City Council Agenda Report
December 5, 2017
Page 3 of 4
improvements. Furthermore, any improvements constructed by Mountain Pines would
remain the property of the City when the lease terminates.
In addition, the new Agreement allows Mountain Pines the ability to conduct year-round
activities on the property. Specifically, year-round community gardens, farmers markets
and the sale of fruits and vegetables grown on the property. Staff believes these
activities are ancillary to the historical agricultural use of the property, and thus
consistent with the General Open Space zoning of the property.
FISCAL IMPACT:
The current Agreement requires Mountain Pines to pay the City an annual payment of
6% of total annual gross sales, or $1,500, whichever is greater. Under the current
Agreement, the City received $4,347 in 2013, $5,454 in 2014, $8,994 in 2015 and
$11,915 in 2016. Given this trend, staff is proposing to leave the annual payment to the
City as 6% of total gross sales, but with a minimum payment of $8,000. With the new
year-round activity and permanent improvements to the property that will be paid for by
Mountain Pines, staff expects the total gross sales to continue to increase, along with
the annual payments to the City.
ENVIRONMENTAL IMPACT :
In accordance with the California Environmental Quality Act (CEQA) the recommended
action is exempt from CEQA per Section 15061 (b)(3), the general rule that the CEQA
applies only to projects which have the potential for causing a significant effect on the
environment. Where it can be seen with certainty that there is no possibility that the
activity in question may have a significant effect on the environment, the activity is not
subject to CEQA.
PRIOR CITY COUNCIL REVIEW:
• On May 20, 2008, the City Council approved a five-year License Agreement with
Mountain Pines.
• On April 6, 2010, the City Council agreed to assign the Mountain Pines License
Agreement to the current operators, Tom Tolmasoff and Tanya Farmakis-
Tolmasoff.
• On March 5, 2013, the City Council approved a five-year License Agreement (the
current Agreement) with Mountain Pines, extending the term until March 2018.
COMMISSION/COMMITTEE/BOARD REVIEW AND RECOMMENDATIONS :
Not applicable .
City Council Agenda Report
December 5, 2017
Page 4 of 4
NOTIFICATION :
Tom Tolmasoff and Tanya Farmakis-Tolmasoff
Hamilton Oaks Winery (Swanner House Operator)
Jim Adam (Hidden Creek Estates)
ATTACHMENT(S):
Attachment 1 -Proposed License Agreement
Attachment 2 -Aerial Location Map
Attachment 3 -Current License Agreement
LICENSE AGREEMENT
BY AND BETWEEN THE CITY OF SAN JUAN CAPISTRANO
AND MOUNTAIN PINES
PARTIES AND DATE
This License Agreement ("Agreement") is entered into as of December 5, 2017 ("Effective
Date") by and between the City of San Juan Capistrano, a California municipal corporation (the
"City") and Tom Tolmasoff and Tanya Farmakis-Tolmasoff, a general partnership, doing
business as Mountain Pines (the "Licensee"). City and Licensee are sometimes hereinafter
individually referred to as "Party" and hereinafter collectively referred to as the "Parties."
RECITALS
A. The City is the owner of certain real property situated in City of San Juan Capistrano of
County, California (the "Property"), and more particularly in Exhibit "A" and
incorporated herein:
1. A parcel of 2.04 acres located at 29932 Camino Capistrano [APN: 650-023-09]
identified as Area A in Exhibit A; and
ii. A parcel of 0.27 acres located at 29936 Camino Capistrano [APN: 650-023-08]
identified as Area B in Exhibit A.
B. The City acquired the property in 1992 as part of the City's acquisition of the Swanner
House property. At the time the City acquired the Property, the Property was operated as
a Christmas Tree Farm that was identified by the City as a use to be continued at the
Property. Since City's acquisition of the property, the City has approved leases with
various entities to operate a Christmas Tree Farm on the Property. The current lease
approved by the City on March 6, 2013 to operate a Christmas Tree Farm and conduct
Halloween pumpkin sales on the Property terminates on March 5, 2018.
C. The Licensee desires to use the Property as for purposes of growing and selling
Christmas trees, Halloween pumpkin sales, periodic farmers markets and year round
community gardens.
D. The Parties desire to enter into this Agreement to allow the Licensee to use the Property
for the above-stated purpose in accordance with the terms and conditions set forth in this
agreement.
TERMS
1. Grant of License.
1.1. Scope. The City grants to Licensee a license to use the Property as follows
described below:
1.1.1. Christmas Tree Farm and Sales. Licensee is required to plant and maintain
pine trees within Area A. Each year, Licensee is required to re-plant at
least one quarter (1/4) of the pine trees located within Area A. During the
61147.00310\30140153.4 1
ATTACHMENT 1
Christmas season of each year, which is defined here as the day after
Thanksgiving through December 24, the Licensee is permitted to sell trees
grown on the property and trees imported to the property. In conjunction
with said tree sales, the Licensee is allowed to conduct related concession
stand sales, events and activities during the Christmas season only. All
such sales, events and activities are limited to Area A of the property.
Prior to such temporary tents, sales, events or activities, a Special
Activities Permit shall be obtained from the City on an annual basis.
1.1.2. Halloween Pumpkin Sales. During the Halloween season of each year,
which is defined here as October 1 through October 31, the Licensee is
permitted to sell pumpkins grown on the property and pumpkins imported
to the property. In conjunction with said pumpkin sales, the Licensee is
permitted to erect temporary tents and conduct related concession stand
sales, events and activities during the Halloween season only. All such
sales, events and activities are limited to Area A of the property. Prior to
such temporary tents, sales, events or activities, a Special Activities Permit
shall be obtained from the City on an annual basis.
1.1.3 . Farmers Market. Licensee is permitted to conduct a Fanners Market on
Area A of the Property no more than once a week. All parking for sellers
and buyers associated with the Farmers Market must be contained on the
Property.
1.1.4. Commtmity Gardens. Licensee is permitted to sub-lease portions of Area
A to individuals for use as a community garden on a year-round basis.
1.1.5. Fruit Stand. Licensee is permitted to grow fruits and vegetables on Area A
of the Property and sell such products to the public from a fruit stand
located within Area A on a year-round basis. With exception of the
weekly Fanners Market, Licensee is not permitted to import fruits or
vegetables for sale on the Property.
1.1.6. City Tractor. Licensee is permitted to use the City owned tractor that is on
the Property in conjunction with all the permitted activities and sales
described in this agreement. Licensee shall not change or modernize the
historic appearance of the City owned tractor. The tractor will remain the
property of the City when this lease terminates.
1.1. 7. Parking. Licensee is permitted to use Area B of the Property for parking
only during the Halloween season and Christmas Season defined above.
Licensee js not permitted to sub-lease Area B to any adjoining landowner
for parking purposes, without first obtaining City approval. No other uses,
other than parking, shall be allowed in Area B. Licensee shall ensure that
any gravel, fill or mulch placed in the parking area of Area B does not
slough onto the adjacent public trail or City Street.
1.1.8. Site Improvements. Licensee is permitted to seek the appropriate City
planning approvals and building permits for the following improvements
61147.00310\30140153.4 2
to the Property: A new barn to replace the existing fruit stand which will
be used for vehicle/equipment storage and contain public restrooms; a
sound wall along the freeway; landscaping improvements involving new
fruit trees, vegetable gardens, corn fields, and various other plants and
flowers; electrical/lighting upgrades; and commtmity garden
improvements. Licensee will be responsible for paying all the applicable
application and permit fees. Any improvements that are constructed will
remain the property of the City when this lease terminates.
1 .2. Other Uses. The Licensee may not use the Property for any other purpose or
business not described in Section 1.1 (Scope) without obtaining the City's prior
written consent
2. Term. This Agreement shall be effective for ten (10) years commencing on the Effective
Date, except as otherwise provided in this Agreement. The Agreement shall
automatically renew for a new 1 0-year term unless Licensee provides City written notice
of its intention not to renew not less than thirty (30) days prior to expiration of the
original 1 0-year term.
3. Compensation. As consideration for use of the Property, Licensee shall pay the City six
percent (6%) of the total annual gross sales, or Eight Thousand Dollars ($8,000),
whichever is greater. This payment shall be made on or before January 31 of each year in
the form of a check payable to the City. Licensee shall provide an accounting of all sales
made on the Property when the check is submitted to the City and make available all
financial records of all operations to the City, if requested, for the purposes of conducting
an audit to ensure compliance with this Section.
4. Condition of the Property.
4. 1. Acceptance of Condition. Licensee accepts the Property in its present condition
upon execution of this Agreement.
4.2. The Licensee's Obligations to the Condition. Licensee agrees, at Licensee's
expense, to use reasonable care to keep the Property clean of weeds, trash, debris,
and rubbish as well as to keep the Property's landscaping, fences, ditches, and
borders in good condition and repair at all times, reasonable wear and tear
expected.
4.3. Tree Maintenance and Lan dscaping.
4.3.1. Generally. Licensee shall be wholly responsible for the performance and
costs of maintenance of all trees and landscaping on the Property, except
as provided in Section 4.3.2 (Eucalyptus Tree Grove).
4.3.2. Eucalyptus Tree Grove. Within the initial one hundred twenty (120) -day
period from the Effective Date of this Agreement, Licensee shall trim or
remove of any dead or diseased trees within the Eucalyptus Tree Grove
located on the Property. During this initial one hundred twenty (120) -day
period, the City shall pay for half the total cost of the any tree trimming or
removal in the Eucalyptus Tree Grove.
61147.00310\30140153 .4 3
4.3.3. Tree Removal Ordinance. Licensee shall at all times be responsible for
ensuring that any tree removal on the property is completed in accordance
with the City's Tree Removal Ordinance (San Juan Capistrano Municipal
Code section 9-2.349).
4.4. Maintenance and Repair by the City. A duly authorized representative of City
may enter upon the Property at a reasonable time for the purposes of inspection
and to perform any necessary maintenance or repair.
4.5. Water.
4.5.1. Water is available to Licensee at the property from a privately owned
agricultural well. Licensee is required to pay its pro-rata share of all costs
required in keeping the water system operational, including but not limited
to power, repairs, and on-going maintenance.
4.5.2. Licensee also has water available through the City's water system and is
required to pay on a timely basis for any water billed through this meter at
the agricultural rate currently in effect at the time the water is used.
4.6. Road Widening. If the City ever undertakes the widening of Camino Capistrano
where it abuts the Property, the City reserves the right to take possession of any
Property deemed necessary to accomplish the road widening during the term of
this agreement without any compensation or adjustment due to the Licensee. City
will provide a minimum of one (1) year advance notice of City's intent to utilize
the needed property.
5. Termination of Occupancy. On or before the termination or expiration of this Agreement,
the Licensee shall remove all of Licensee's personal property from the Property and shall
surrender possession of the Property to the City in good order and repair to the
satisfaction of the City, normal wear and tear excepted.
6. Default.
6.1. Notice to Cure. In the event of a default by the Licensee, the City shall give the
Licensee thirty (30) days' written notice to cure the default. The notice shall
specify in reasonable detail the nature and extent of the default. If the default is
not cured by the Licensee within the 30 days' notice period, then the City may
immediately terminate this Agreement.
6.2. Additional Time to Cure. If the nature of Licensee's obligation is such that more
than thirty (30) days are required for performance, then the Licensee shall not be
deemed to be in default if it commences the cure within the thirty (30) day notice
period provided in Section 6.1 (Notice to Cure) and thereafter diligently
prosecutes the same to completion. If the default is not cured by Licensee in a
reasonable amount of time, then the City may immediately terminate this
Agreement
7. Indemnification.
61147.00310\30140153.4 4
7.1. lndemnit1cation of the City by the Licensee. The Licensee 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 Licensee, its
officials, officers, personnel, employees, contractors, and/or subcontractors as
well as its contractors' and/or subcontractors' officials, officers, employees, and
agents. Further, the Licensee shall defend at its own expense, including attorneys'
fees , the Indemnified Parties in any legal action based upon such acts, omissions
and/or operations.
7.2. The L icensee 's Obligations . The Licensee's obligations under this Section 7
(Indemnification) 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.
7.3. The City's Rights. The City does not and shall not waive any rights against the
Licensee that the City may have under the indemnification provision in this
Section 7 (Indemnification) because of the City's acceptance of any security
deposits or insurance policies.
7.4. Survival. The indemnification provision in this Section 7 (Indemnification) shall
survive the termination or expiration of this Agreement.
8. Insurance.
9.
8.1. Coverage and Amount. The Licensee agrees to maintain in full force during the
term of this Agreement, at Licensee's own expense, a policy of comprehensive
liability insurance, including property damage, which will insure Licensee and the
City against liability for injury to persons, damage to property, and death of any
person occurring in or about the Property. The City shall be named as an
additional insured on the policy. The insurance shall be not less than $2,000 ,000
per occurrence and a $3,000,000 aggregate. The Licensee's insurance policy shall
be the primary insurance while the City's insurance is non-contributory. Other
terms and conditions, including cancellation provisions and endorsement forms,
shall be reviewed and approved by the Office of the City Attorney.
8.2. Copy of Policy and Endorsements. The Licensee shall provide the City with a
copy of the policy, including an endorsement that states that the policy will not be
cancelled except after ten (10) days' notice in writing to the City.
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.
61147.0031013 01 40153.4 5
10. Governing Law and Venue. This Agreement shall be governed by the laws ofthe State of
California. Venue shall be in Orange County.
11. 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 Licensee 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 Licensee 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.
12. Supplement. Modification, and Amendment. No supplement, modification, and/or
amendment of this Agreement shall be binding unless executed in writing and signed by
both Parties.
13. Assignment or T ransfer.
13.1. No Assignment without the City's Consent. The Licensee shall not assign,
hypothecate, or transfer, either directly or by operation of law, this Agreement or
any interest herein without prior written consent of the City. Any attempt to do so
shall be null and void, and any assignee, hypothecatee, or transferee shall acquire
no right or interest by reason of such attempted assignment, hypothecation, or
transfer. Unless specifically stated to the contrary in the City's written consent,
any assignment, hypothecation, or transfer shall not release or discharge the
Licensee from any duty or responsibility under this Agreement.
13.2. Merger. The transfer of a majority of the ownership interests in the Licensee,
however accomplished, and whether in a single transaction or in a series of related
or unrelated transactions, or the merger of the Licensee into any other entity in
which the Licensee is not the surviving entity, or the sale of all or substantially all
of the Licensee's assets, shall be deemed an assignment of the Licensee's rights
hereunder subject to the requirements of Section 13.1 (No Assignment without the
City's Consent).
14. Construction. References, and Captions.
14.1. 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.
14.2. 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.
14.3. Calendar Days. Any term referencing time, days, or period for performance shall
be deemed calendar days and not work days.
61147.0 0310\30140153.4 6
14.4. References to the City. All references to the City shall include, but shall not be
limited to, City Council, City Manager, City Attorney, City Engineer, or any of
their authorized representatives. The City shall have the sole and absolute
discretion to determine which public body, public official or public employee may
act on behalf of the City for any particular purpose.
14.5. References to the Licensee. All references to the Licensee shall include all
officials, officers, personnel, employees, agents, contractors, and subcontractors
of Licensee, except as otherwise specified in this Agreement
15 . Relationship Between the Parties. The Parties hereby mutually agree that neither this
Agreement, nor any other related entitlement, permit, or approval issued by the City for
the Property shall operate to create the relationship of partnership, joint venture, or
agency between the City and the Licensee. The Licensees' contractors and subcontractors
are exclusively and solely under the control and dominion of the Licensee. Nothing
herein shall be deemed to make the Licensee or its contractors or subcontractors an agent
or contractor of the City.
16. Not i.c es. AU 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
16 (Notkes). Notices delivered personally will be deemed communicated as of actual
receipt; mailed notices will be deemed communicated as of two (2) days after mailing.
To City:
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Attn: City Manager
17 . E ntire Agreement and Severa bility.
To Mountain Pines:
Mountain Pines
27222 Cordero Lane
Mission Viejo, CA 92691
17 .1. 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.
17 .2. 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.
18. Binding E ffect.
18 .1. The Parties. Each and all of the terms and conditions of this Agreement shall be
binding on and shall inure to the benefit of the Parties, and their successors, heirs,
personal representatives, or assigns.
18.2. Successors and Assigns. This Agreement shall be binding on the successors and
assigns of the Parties.
61147.00310\30140153.4 7
18.3. Recordation. The Licensee acknowledges and agrees that the City may cause a
copy of this Agreement to be recorded in the Orange County Recorder's Office.
18.4. Not Authorization to Assign. This Section 18 (Binding Effect) shall not be
construed as an authorization for any Party to assign any right or obligation under
this agreement other than as provided in Section 13 (Assignment or Transfer).
Signatures on next page.
61147.00310\30140153-4 8
SIGNATURE PAGE TO LICENSE AGREEMENT
BY AND BETWEEN THE CITY OF SAN JUAN CAPISTRANO
AND MOUNTAIN PINES
In witness thereof: the Parties here to have executed this Agreement:
City of San Juan Capistrano Mountain Pines
By: ________________________ __
City Manager ~~
ArrEsT:
By: __________________________ __
City Clerk
APPROVED AS TO FORM:
By: __________________________ _
City Attorney
61147 00310\30140153.4 9
-
61147 .00310\30140153.4
EXHIBIT "A"
DESCRIPTION OF PROPERTY
A-1
30291
Area B-Special Event
Parking Only
APN: 650~23~8
EXHIBIT A
Aerial Photo
ATTACHMENT 2
LICENSE AGREEMENT
This License Agreement is entered into this 6th day of March 2013, by and between
the City of San Juan Capistrano (hereinafter "Ci ty "), and Frank Bayo , Tom Tolmasoff, and
Tanya Farmakis-Tolmasoff, a general partnership, doing bus iness as Mountain Pines
Christmas Tree Farm (hereinafter collectively "Licensee").
RECITALS
WHEREAS, the City is the owner of APN 650-023-09, approximately 2 .04 acres and
APN 650-023-08, approximately 0 .27 ac res of property located in the City of San Juan
Capistrano , which property was acquired to be maintained as open space within the City ; and
WHEREAS, at the time of acquisition, the property included an existing Christmas
Tree Farm that was identified as a use to be continued on this property; and
WHEREAS, the Licensee desires to use the approximate 1.5 acre portion located at
the north end of APN 650-023-09 (Exhibit A-"Area A-Tree Farm") (hereinafter "Area A")
to continue the existing use as a Christmas tree farm; and
WHEREAS, the Licensee desires to use the southerly 0.54 acre portion of APN 650-
023-09 and APN 650-023-08 (Exhibit A-"Area B-Special Event Parking Only")(hereinafter
"Area B") for parking only during special events as approved by the City.
NOW, THEREFORE, City and Licensee hereby mutually agree as follows:
Section I. Scope of License .
City hereby grants to Licensee a license to establish and maintain a Christmas tree
farm on that certain property located in the City of San Juan Capistrano, California, as
depicted on the site plan attached hereto as Exhibit "A" and incorporated herein by reference
(the "Property"). Licensee agrees each year during the term of this Agreement to replant at
least one quarter ( 1/4) of Area A-Tree Farm with new pine trees. Licensee agrees to pay all
operational costs for Christmas tree farm purposes.
Section 2. Water.
Water is available to the LICENSEE at the Property from an agricultural well.
Licensee is required to pay its pro-rata share of all costs required in keeping the water
system operational, including but not limited to power, repairs and on-going maintenance.
LICENSEE also has water available through the City's water system and is required to pay
for any water billed through this meter at the agricultural rate currently in effect at the time
the water is used.
ATTACHMENT 3
Section 3. Additional Uses.
Area A -Licensee shall be permitted to grow strawberries, pumpkins, squash and
other vegetables and conduct vendor fruit stand activities on Area A. However, the
installation and site plan layout of the fruit stand shall first be subject to written approval by
the City.
Licensee shall be allowed to conduct Halloween and Christmas Season events annually as
outlined in this section. In order to conductthese events, the Licensee shall submit a special
activities permit application, covering the period from the first Friday in October through
December 24 of each year . no later than July 1 of each year. Such application must be
deemed complete by the City, otherwise no events shall occur.
Halloween Season -The Halloween Season shall begin the first Friday in October and
continue through October 31 of each year. During this time, the Licensee may conduct a
pumpkin patch or seasonal event on Area A after having been issued a special activities or
other required permit by the City.
Christmas Season -The Christmas Season shall begin the day after Thanksgiving and
continue through December 24 of each year. During this time, the Licensee may conduct a
Christmas or seasonal event on Area A, including the sale of trees grown on the Property
after having been issued a special activities permit by the City.
Licensee shall be allowed to use the fruit stand on the Property for purposes of selling items .
The Licensee shall be allowed to have a temporary tent erected during the period of time
covered by the Special Activities Permit. However, no special activities, other than clean-up,
and set-up shall occur from November 1 through Thanksgiving Day . Additionally, should
Licensee desire to import pumpkins for sale during the Halloween Season or Christmas trees
for sale during the Christmas Season on the Property, such importation and sale shall be
subject to written approval by the City .
Area B -Licensee shall be permitted to use the southerly portion of the Area B
located on APN 650-023-08 for parking purposes only during special events that have been
issued a Special Activities Permit by the City. No parking shall be allowed in this area at any
other time. The portion of Area B located on APN 650-023-09 shall be for pedestrian access
only to and from the event parking area. No other uses shall be allowed on Area B .
Section 4. Co mp e nsa ti o n.
As consideration for use of the Property, Licensee shall pay the City six percent (6%)
of the tot al annual gro ss sales, o r $1,500 whichever is greater. On January 1, 2014, the
base payment amoun t will be increased by 5% ($1,575); on each January 151 thereafter,
beginning on January 1, 2015, the base will be increased based on the Consumer Price
Index (CPI)-All Urban Consumers for Los Angeles-Riverside-Orange County, CA area from
March to March . This payment shall be made in January of each year in the form of a check
made payable to the City. Licensee shall provide an accounting of all sales made on the
Property when the check is submitted to the Licensor and make available all financial
records of all operations to the Licensor, if requested, for purposes of conducting an audit to
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ensure compliance with this Section. Records shall be presented to the City Finance
Department within ten (1 0) business days.
Section 5. Term.
The term of this Agreement shall be effective from the date of execution of the
Agreement until March 5, 2018.
Section 6. Default.
In the event of a default by Licensee, Licensor shall give Licensee thirty (30) days'
written notice to cure the default. The notice shall specify in reasonable detail the nature
and extent of the default. If the nature of Licensee's obligation is such that more than thirty
(30) days are required for performance, then Licensee shall not be deemed to be in default if
it shall commence such performance within such thirty (30) day period and thereafter
diligently prosecute the same to completion. If the default is not cured by licensee, then
Licensor may immediately terminate this Agreement.
Section 7. City 's Camino Capistrano Road Widening Project.
City has plans to widen Camino Capistrano as it abuts the Property. This road
widening project may necessitate the City utilizing a portion of the Property (more
particularly, approximately thirty feet (30') in width running the full length of the Property
along Camino Capistrano) during the term of this Agreement. Accordingly; the City reserves
the right to take possession of any of the Property deemed necessary to accomplish the
road widening during the term of this agreement without any compensation or adjustment
due to Licensee . City will provide a minimum of sixty (60) calendar days advance notice of
City's intent to utilize the needed property.
Section 8 . Condition of Property.
Licensee accepts the Property in its present condition upon execution of this
Agreement. Licensee agrees, at Licensee's expense, to use reasonable care to control all
weeds growing on Property; keep the Property clean of trash, debris and rubbish; and to
keep fences, ditches and borders of the Property in good condition and repair at all times,
reasonable wear and tear expected. The duly authorized representative of City may enter
upon the Property at a reasonable time for the purposes of inspection and to perform any
necessary maintenance or repair.
Section 9. Site Modifications.
Any modifications to the Property, including removal of trees other than the
Licensee's stock, or expansion into the currently unused portion of the Property, will require
prior City Council approval.
Section 10. Insurance .
Licensee shall maintain at all times during the term of this Agreement comprehensive
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general liability and property damage insurance in the amount of not less than One Million
Dollars ($1,000,000) combined single limit. City shall be named as an additional insured on
said policies. Other terms and conditions, including cancellation provisions and
endorsement forms, shall be reviewed and approved by the Office of the City Attorney.
Section 11. Indemnity.
Licensee shall defend, indemnify and hold harmless City, its elected and appointed
officials, officers, employees and agents from and against any and all claims, demands,
suits, actions and proceedings, of any kind or nature, for damages to property or injuries to
or death of any persons arising out of Licensee's actions and activities as Licensee of the
subject Property.
Section 12. No Assignments .
Licensee shall not assign its rights under this Agreement to any third party without the
advance written consent of the City.
Section 13. Notices.
All notices, demands, consents, or other communications required to be given under
this Agreement shall be accomplished by first class mail, postage prepaid, and deposited in
the U.S. mails, or personally served upon the other party.
Licensor:
City Manager
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Section 15 . Attorney's Fees .
Licensee:
Tom Tolmasoff and
Tanya F armakis-Tolmasoff
27222 Cordero Lane
Mission Viejo, CA 92691
Frank Bayo
387 Magnolia Ave., 103-524
Corona, CA 92879
In the event any legal action or proceeding is commenced to interpret or enforce the
terms of, or obligations arising out of this Agreement, or to recover damages for the breach
thereof, the party prevailing in any such action or proceeding shall be entitled to recover
from the non-prevailing party all reasonable attorney's fees, costs and expenses incurred by
the prevailing party.
Section 16 . Entire Agreement.
This agreement contains the entire Agreement of the parties hereto with respect to
the matters covered hereby, and no other previous agreement, statement or promise made
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by any party hereto which is not contained herein shall be binding or valid.
Section 17. Taxes.
Pursuantto Revenue & Taxation Code §107 .7, the property interest created herein, if
any, may be subject to property taxation and LICENSEE may be subject to property taxes
levied on such interest, if any. In no event shall LICENSOR be liable for any taxes owed as
a result of this License or Licensee's use of the Premises.
Section 18. No Relocation Benefits.
This License is not intended to convey a property interest but to permit Licensee to
use the Premises as provided for herein. Licensee acknowledges the rights granted by
State and/or Federal Relocation Assistance Laws and regulations and, notwithstanding any
other provision of this License, expressly waives all such present and future rights, if any, to
which Licensee might otherwise be entitled from Licensor or the City of San Juan Capistrano
with regard to this License and the business operated on the Premises. Licensee shall not
be entitled to relocation assistance, relocation benefits, or compensation for loss of goodwill
upon the termination of this License.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
ATTEST:
By:
APPROVED A~Tr:
By. ()k(/ C2
Hans Van Ligten, City Attorney
CITY OF SAN JUAN CAPISTRANO
By:
i
I
C<lpYriqhl ;woe. FARES. Cllll\'olnGt Otta . Oigi!lal Map Produab.
Exhibit A