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17-1205_MOUNTAIN PINES CHRISTMAS TREE FARM_License AgreementLICENSE 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: i. 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 terns and conditions set forth in this agreement. TERMS 1. Grant of License. I.I. Ste. 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 61147.003 10\30140153.4 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 Farmers 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. Community Gardens. Licensee is permitted to sub -lease portions of Area A to individuals for use as a community garden on a year-round basis. U.S. 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 Farmers 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 is 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 61147.00310130140153A 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 community 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. Tern. 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 10 -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 10 -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 Landscaping. 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. 61147.00310130140153.4 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 Ci1y. 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. 61147.00310X30140153.4 4 7.1. Indemnification 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 Licensee'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. 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 tends 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. 9. 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. 61147.00310130140153.4 5 10. Governing Law and Venue. This Agreement shall be governed by the laws of the 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 Transfer. 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. 61147.0031030140153.4 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. 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 16 (Notices). Notices delivered personally will be deemed communicated as of actual receipt; mailed notices will be deemed communicated as of two (2) days after mailing. 17. 18. To City: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: City Manager Entire Agreement and Severability. To Mountain Pines: Mountain Pines 27222 Cordero Lane Mission Viejo, CA 92691 17.1. Entire Afreement. 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. Binding Effect. 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. 61147.00310530140153.4 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. 61147.00310130140153.4 8 SIGNATURE PAGE TO LICENSE AGaEEMENi' BV AND BETWEEN THE CITV 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 M ger Tom Tolmasoff ATTEST: By: City Clerk T aFar ' -fo ff APPROVED AS TO FORM: City Attorney 61147,WII00e1401534 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:B City M er Tom Tolmasoff ATTEST: �\ I1 By: a : al Cl Jerk T a Fa - o a IT APPROVED AS TO FORM: By: City Attorney 51147,M310V01401534 EXHIBIT A