18-0821_THE ECOLOGY CENTER_License Agreement LICENSE AGREEMENT
BY AND BETWEEN THE CITY OF SAN JUAN CAPISTRANO
AND ECOCENTER, INC., DBA THE ECOLOGY CENTER FOR THE PROPERTY
LOCATED AT 32681 ALIPAZ STREET, SAN JUAN CAPISTRANO
PARTIES AND DATE
This License Agreement ("Agreement") is entered into as of this 21 day of August,
2018 ("Effective Date") by and between the City of San Juan Capistrano, a California
municipal corporation (the "City") and Ecocenter, Inc., dba The Ecology Center, a
California nonprofit public benefit corporation (the "Licensee"). City and Licensee are
sometimes hereinafter individually referred to as "Party" and hereinafter collectively
referred to as the "Parties."
RECITALS
A. Licensee is a nonprofit organization whose mission is to provide creative
solutions for thriving on planet earth. Licensee believes everyone should have
access to the tools, knowledge, and skills that promote healthy communities and
an abundant future for all.
B. City is the owner of a 28.225 acre farm located at 32681 Alipaz Street, San Juan
Capistrano, California, which was acquired by the City to be maintained as open
space.
C. Licensee desires to conduct farming operations on approximately 27.475 acres
of the property, with 0.50 acres set aside for City use.
D. Licensee has farming expertise and experience and desires to manage the
maintenance and operations of the agricultural activities on the property.
TERMS
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Grant of License.
1 .1 . Scope. The City grants to Licensee a license to manage, maintain and
operate a fruit and vegetable farm on 27.475 acres of the property located
at 32681 Alipaz Street, San Juan Capistrano (herein after "Property") as
described below:
1 .1.1. The Property subject to this Agreement is specifically depicted in
the Site Plan attached hereto as Exhibit "A" and is incorporated
hereby this reference.
1 .1 .2. The Joel Congdon House is not subject to this Agreement, but is
subject to a separate license agreement between City and
Licensee dated May 4, 2016.
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1 .1 .3. All crops harvested on the Property during the term of this
Agreement shall be the sole property of Licensee.
1 .1.4. City makes no warranty of the suitability of the Property for the
growing of crops.
2. Term. This Agreement shall commence on //// , 2018 ("Commencement
Date") and shall be effective for three (3) years ("Initial Term"), except as
otherwise provided in this Agreement. This Agreement may be extended for two
(2) additional one (1) year terms, upon the written request of the Licensee. Such
notice of the extension shall be submitted to the City in writing no less than thirty
(30) days before the expiration of the Term.
3. License Fees.
3.1. License Fees. In consideration of Licensee's nonprofit status and mission
as well as the terms of this Agreement, the Licensee agrees to annually
pay the license fees to City as follows:
3.1 .1. Twenty-five thousand ($25,000) dollars annually for the use of the
Property for the Initial Term.
3.1 .2. Should Licensee exercise the additional one (1) year extension(s)
pursuant to Section 2 of the Agreement, then the Licensee agrees
to pay City the fee amount of thirty-five thousand ($35,000) dollars
annually for the use of the Property for each extension year.
3.2. The initial payment of the annual License fee shall be due within five (5)
working days of the Commencement Date. Each subsequent payment of
the License fee shall be due annually on each anniversary of the
Commencement Date.
4. Licensee obligations.
4.1 . Licensee shall comply with all applicable laws, ordinances, codes and
regulations of federal, state and local government.
4.2. Operation of Farm. Licensee shall be responsible for the supervision and
management of every aspect of running a farming operation of produce for
human consumption on the Property in a business-like manner.
Supervision and maintenance obligations, shall be performed at no cost to
the City, and include but are not limited to:
4.2.1. The employment, supervision and direction of all employees
engaged in the farming operation.
4.2.2. Providing for the maintenance of all equipment and supervising its
use in a safe and prudent manner.
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4.2.3. Soil preparation, planting, fertilizing, irrigating, pesticide and
herbicide applications, and the harvesting of all crops.
4.2.4. The marketing and sale of crops.
4.2.5. Maintenance of records and accounting for all revenues and
expenditures, including employee payroll and related records.
4.2.6. Purchasing of all seeds, plants, fertilizers, herbicides, pesticides,
and other materials and supplies, such as boxes and packaging
materials, required for marketing and sale of the crops.
4.2.7. All operations shall be performed in a competent manner,
consistent with the standards of the industry and in accordance with
all applicable Federal, State and local regulations, including the
City's Municipal Code.
4.2.8. Licensee shall farm the Property in a manner that protects the soil
in accordance with sound agricultural practices commensurate with
the custom and practice within Orange County, California. Should
Licensee desire to implement any unique agricultural practices, the
Licensee shall seek written approval from the City in advance of
implementing the unique agricultural practices.
4.2.9. Licensee shall not plant or grow Cannabis otherwise known as
Marijuana ("Marijuana").
4.3. Maintenance of Property. Licensee shall be responsible for the
management and maintenance of all on-site improvements, at no cost to
the City.
4.3.1 . Temporary housing is subject to City's approval based on all
applicable provisions of the City's Land Use Code.
4.3.2. Licensee agrees to accept the Property in its present condition as
of the date of execution of this Agreement. Licensee may use the
buildings and existing structures on the Property for Licensee's use
in farming operations.
4.3.3. Licensee shall use reasonable care to control all weeds, noxious or
otherwise, growing on the Property, including those growing in
drainage ditches.
4.3.4. Licensee shall reasonably control all rodents, insects, and other
pests on the Property.
4.3.5. Licensee shall keep fences, ditches and borders of the Property in
good condition and repair.
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4.3.6. Licensee shall maintain, at Licensee's expense, the Property,
including all existing structures and all equipment owned and
furnished by Licensee, in a reasonable state of repair and working
order.
4.3.6.1. Licensee may plant fruit trees on the Property and
shall be responsible for properly maintaining all trees
including removal of all tree debris.
4.3.6.2. Licensee understands that the shrubs on the
Premises block the wind, limit road dust, and reduce the
amount of debris entering the Property. Licensee shall
sufficiently maintain the shrubs in order to keep harmful
elements away from the crops.
4.3.7. Licensee agrees that "The Letter Agreement Regarding Delinquent
Water Bill for the Property located at 32681 Alipaz Street, San Juan
Capistrano" ("Letter Agreement") datedbetween City and
Licensee was a material inducement for ity entering into this
Agreement with Licensee and, as such, any breach of the Letter
Agreement shall be considered a breach of this Agreement.
4.4. Retail Stand.
4.4.1. The existing retail stand may be utilized by Licensee solely for retail
sales of agricultural products. Related merchandise may be
allowed however, sales shall be primarily agricultural products and
City reserves the right to prohibit certain merchandise.
4.4.2. Licensee shall not sell Marijuana, Marijuana products or Marijuana
accessories as those terms are defined in the San Juan Capistrano
Municipal Code that may be amended from time to time.
4.4.3. Licensee is also permitted to allow members of the public to pick
their own produce. Sufficient parking on site shall be provided for
the retail stand.
4.4.4. Any expansion, regardless of size or scope, is prohibited under this
Agreement unless Licensee obtains written approval of the City.
4.5. Improvements: Licensee shall receive written approval from City prior to
making any improvements or alterations to the Property and/or facilities. If
a permit is required the Licensee shall submit to the Development
Services Department, in writing, any desired changes/improvements to the
Property and/or facilities. It is the responsibility of Licensee to determine if
a permit(s) is required. All required permits must be obtained prior to
commencing any improvement work.
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4.5.1. All improvements undertaken by Licensee shall be the sole
financial responsibility of Licensee unless Licensee and City enter
into a cost sharing agreement.
4.5.2. The total cost of all improvements shall not exceed ninety thousand
dollars ($90,000) during the Initial Term of this License Agreement.
4.6. Domestic and Irrigation Water, Electrical, Gas, Telephone,
Television/Cable/ Wireless Services. Licensee shall be solely responsible
for any and all expenses related to any and all utilities, including but not
limited to domestic and irrigation water, electrical, gas, telephone,
television/cable/wireless services, for the Property. Property shall be
repaired by Licensee if any damage is done to the Property due to the
installation or removal of the utilities and services.
4.7. Access Road. The access road as shown in Exhibit "A" attached hereto
and incorporated here shall be accessible for use by the representatives
of the wireless phone company to gain access to the antenna site located
on the sports park field adjacent to the Property. In addition, a gate and
corresponding locks shall be added and maintained at no cost to City.
4.8. Licensee shall, at all times, keep City advised of the name, address, and
telephone number of the person(s) responsible for the operation of the
Property.
4.9. On or before the termination or expiration of this Agreement, the Licensee
at their sole expense 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, in substantially the same condition at the time of
entry into this Agreement, to the satisfaction of the City. Licensee shall
leave Property free and clear of all rubbish and debris. Licensee shall not
remove any fruit trees or approved improvements at the termination of the
Agreement.
5. Multi-Use Trail Project. Licensee shall cooperate with the City, and City shall
involve Licensee, during the design, environmental review, and construction of a
multi-use trail project (hereinafter "Trail") through the Kinoshita Farms site
connecting the adjacent Vermeulen property, located north of Via Positiva, to the
Joel Congdon House located in the southeast quadrant of the Kinoshita Farm
property. Licensee shall not be liable for any costs associated with the Trail.
Licensee hereby agrees that the City and the contractors of the Trail shall have
access to the Property as necessary for the construction of the Trail. Upon
completion of the Trail, Licensee hereby agrees that City and members of the
public shall have access to the Trail.
6. Event Parking. Licensee shall provide, on-site vehicle parking for any event held
at the Property that exceeds one hundred (100) participants.
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7. Reservations to City
7.1. City reserves the right to enter the Property at any reasonable time for the
purpose of inspection. Any rights herein reserved shall, moreover, not be
exercised in any manner which will unreasonably interfere with Licensee's
use and occupancy of the Property for the purposes stated in this
Agreement.
7.2. City also reserves the right to enter the Property for purposes of
maintenance, which may include the need for Licensee to vacate Property
for a reasonable temporary period to be specified at that time, with
provision of ninety (90) days' notice, except for repairs deemed to be for
emergency/public safety reasons no notice shall be required.
7.3. Fourth of July Celebration. City shall have use and access to the Property
at no cost to the City in order to host the fireworks celebration for the
Community from the Property each July 4th on an annual basis throughout
the term of this Agreement. This access shall include, but is not limited to,
all set up, coordination, and take-down activities necessary for the annual
fireworks display. City shall clean up and return the Property to its
ordinary state at the conclusion of such event.
8. Indemnification.
8.1 . Indemnification of City by Licensee. The Licensee shall defend (with
counsel approved by City), indemnify and hold the City, its officials,
officers, employees, and agents (the "City 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.
8.2. Indemnification of Licensee by City. The City shall defend (with counsel
approved by Licensee), indemnify and hold the Licensee, its officials,
officers, employees, and agents (the "Licensee 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 (i) the construction, operation, use, or maintenance of the
Trail on the Property, (ii) any other acts, omissions, and/or operations on
the Property by the City (including, but not limited to, any activities
conducted pursuant to Section 7) by City's officials, officers, personnel,
employees, contractors, and/or subcontractors as well as its contractors'
and/or subcontractors' officials, officers, employees, and agents.
8.3. The Parties' obligations under this Section 8 (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,
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supplied, or approved any plans or for the uses allowed by this
Agreement, and regardless of whether or not such insurance policies shall
have been determined to be applicable to any of such damages or claims
for damages.
8.4. 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 8 (Indemnification) because of the City's acceptance of any
security deposits or insurance policies.
8.5. Survival. The indemnification provision in this Section 8 (Indemnification)
shall survive the termination or expiration of this Agreement.
9. Insurance
9.1. On or before beginning any of the services or work called for by any term
of this Agreement, Licensee, at its own cost and expense, shall carry,
maintain for the duration of the Agreement, and provide proof thereof that
is acceptable to City, the insurance specified below with insurers and
under forms of insurance satisfactory in all respects to the City. Insurance
required herein shall be provided by Admitted Insurers in good standing
with the State of California and having a minimum Best's Guide Rating of
A-Class VII or better.
9.1 .1 . Throughout the term of this Agreement, Licensee at Licensee's sole
cost and expense, shall maintain in full force and effect the
following insurance against liabilities arising out of Licensee's
activities on the Property:
9.1 .1 .1 . Comprehensive General Liability coverage in an
amount not less than two million dollars ($2,000,000), per
occurrence combined single limit coverage, and three million
dollars ($3,000,000) aggregate;
9.1 .1.2. Worker's Compensation in an amount not less than
one million ($1 ,000,000) per accident and to include a
Waiver of Subrogation;
9.1 .1.3. Automobile Insurance covering all owned, non-owned
and hired vehicles with a limit of one million dollars
($1 ,000,000) each accident for bodily injury and property
damage; and,
9.1 .1.4. The insurance coverage required herein shall be
primary insurance as respects the City, its officials,
employees, and volunteers. Any insurance or self-insurance
maintained by the City, its officials, employees, or volunteers
shall be in excess of the insurance required herein and shall
not contribute with it; and
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9.1 .1.5. The City, its officials, employees, and volunteers are
to be covered as additional insureds, and the coverage shall
contain no special limitations on the scope of the protection
afforded to the City, its officials, employees, or volunteers.
9.1.2. Proof of Insurance Requirements/Endorsement: Licensee shall
submit the insurance certificates, including the deductible or self-
retention amount, and an additional insured endorsement naming
City, its officers, employees, agents, and volunteers as additional
insured as respects each of the following: liability arising out of
activities performed by or on behalf of Licensee, including the
insured's general supervision of Licensee; products and completed
operations of Licensee; or premises owned, occupied or used by
Licensee. The coverage shall contain no special limitations on the
scope of protection afforded City, its officers, employees, agents, or
volunteers.
9.1.3. Notice of Cancellation/Termination of Insurance: The above
policy/policies shall not terminate, nor shall they be canceled, nor
the coverages reduced, until after thirty (30) days' written notice is
given to City, except that ten (10) days' notice shall be given if there
is a cancellation due to failure to pay a premium.
9.2. 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.
10. Termination. This Agreement may be terminated upon the default of one of the
Parties if such default is not cured within ninety (90) days following written notice
of such default from non-defaulting Party. In the event of a dispute between the
Parties, City and Licensee shall meet and confer regarding the matter. If the
dispute cannot be resolved through a meet and confer session, then the
Agreement may be terminated by the non-defaulting Party
10.1 . In the event Licensee files for bankruptcy or is found to be in a state of
insolvency, then City shall have the right to terminate this Agreement and
all further rights and obligations thereunder by ten (10) days' written notice
to Licensee. Upon the expiration of the ten (10) days' notice this
Agreement shall automatically terminate.
11 . Possessory Interest Tax Notice. Licensee hereby recognizes and understands
that this Agreement may create a possessory interest subject to property
taxation, and that Licensee may be subject to the payment of property taxes
levied on such interest. Any such imposition of a possessory interest tax shall be
a tax liability of Licensee solely, notwithstanding any provision of this Agreement
to the contrary. Licensee shall promptly notify City of any possessory interest tax
imposed against Licensee's interest in the License Area, and shall provide City
with a copy of any bill or assessment imposing the possessory interest tax.
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Licensee shall remit to the taxing agency the amount of the possessory interest
tax imposed against Licensee, and shall notify City in writing of the payment.
Licensee acknowledges that City, in accordance with California Revenue and
Taxation Code Section 107.6, has given notice to Licensee that Licensee may be
subject to property taxation, and that Licensee may be subject to the payment of
property taxes levied on the possessory interest created by this Agreement and
license. Licensee shall be fully responsible for the payment of all possessory
interest taxes levied and/or assessed during the term of this Agreement
regarding the license.
12. 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.
13. Governing Law and Venue. This Agreement shall be governed by the laws of the
State of California. Venue shall be in Orange County.
14. 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.
15. 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.
16. Assignment or Transfer.
16.1 . 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.
16.2. 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
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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 16.1 (No Assignment without the City's Consent).
17. No Relocation Benefits. This Agreement is not intended to convey a property
interest but to permit the Licensee to use the property as provided for herein. The
Licensee acknowledges the rights granted by State and/or Federal Relocation
Assistance Laws and regulations and, notwithstanding any other provision of this
Agreement, expressly waives all such present and future rights, if any, to which
the Licensee might otherwise be entitled from the City with regard to this
Agreement and the business operated on the property. The Licensee shall not be
entitled to relocation assistance, relocation benefits, or compensation for loss of
goodwill upon the termination of this Agreement.
18. Construction, References, and Captions.
18.1. 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.
18.2. 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.
18.3. Calendar Days. Any term referencing time, days, or period for
performance shall be deemed calendar days and not work days.
18.4. 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.
18.5. 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
19. 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.
20. 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
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addresses listed below, but each Party may change the address by written notice
in accordance with this Section 20 (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.
To City: To Licensee:
City of San Juan Capistrano Evan Marks, Executive Director
32400 Paseo Adelanto The Ecology Center
San Juan Capistrano, CA 92675 32701 Alipaz Street
Attn: City Manager San Juan Capistrano, CA 92675
21 . Entire Agreement and Severability.
21.1 . 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.
21 .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.
22. Binding Effect.
22.1 . 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.
22.2. Successors and Assigns. This Agreement shall be binding on the
successors and assigns of the Parties.
22.3. Not Authorization to Assign. This Section 22 (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 16
(Assignment or Transfer).
Signatures on next page.
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SIGNATURE PAGE TO LICENSE AGREEMENT
LICENSE AGREEMENT
BY AND BETWEEN THE CITY OF SAN JUAN CAPISTRANO
AND ECOCENTER, INC., DBA THE ECOLOGY CENTER FOR THE
PROPERTY LOCATED AT 32681 ALIPAZ STREET, SAN JUAN CAPISTRANO
In witness thereof, the Parties here to have executed this Agreement
City of San Juan Capistrano Ecocenter, Inc.
A California municipal corporation
By. C -
By.
AMIG EVAN MARKS,
ity Mana er Executive Director
ATTEST'
M C
MO" r ,
City Clerk
APPROVED AS TO FORM:
By:
JEF A gER
City Attorney
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EXHIBIT "A"
SITE PLAN
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