06-0801_PHILIP, JOSEPH/KENDRA & TOLMASOFF, JOHN/ERIN_License Agreement• a
LICENSE AGREEMENT
This License Agreement is entered into this day of August, 2006, by and
between the City of San Juan Capistrano (hereinafter "City'), and Joseph and Kendra Philip,
as husband and wife; and John and Erin Tolmasoff, as husband and wife, a general
partnership, doing business as Mountain Pines Christmas Tree Farm (hereinafter
"Licensee").
RECITALS
WHEREAS, the City is the owner of APN 650-023-09 which is approximately 2.04
acres 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 the property to continue the existing use as a Christmas tree farm;
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 the Property with new pine trees. Licensee agrees to pay all
operational costs, including water usage, for Christmas tree farm purposes.
Section 2. Additional Uses.
Licensee shall be permitted to grow strawberries, pumpkins, squash and other
vegetables and conduct vendor fruit stand activities on the Property. However, the
installation and site plan layout of the fruit stand shall first be subject to written approval by
the City. In addition, should Licensee desire to import Christmas trees for sale on the
Property during the Christmas season, such importation and sale shall be subject to written
approval by the City.
Section 3. Compensation.
Licensee shall keep all proceeds from the sale of Christmas trees and produce grown
on the Property. In exchange for use of the Property, Licensee shall pay the City six
percent (6%) of two-thirds (2/3) of the total annual gross sales derived from the Christmas
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tree farm. This payment shall be made in January of each year in the form of a check made
payable to the City. Licensee shall make available all financial records of the Christmas
tree farm operation to the City if requested for purposes of conducting an audit to ensure
compliance with this Section. Records shall be presented to City Auditors within ten (10)
business days.
Section 4. Term.
The term of this Agreement shall be effective from the date of execution of the
Agreement until January 31, 2011.
Section 5. 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 6. City's Camino Capistrano Road Widening Proiect.
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, 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. City will provide a minimum of sixty (60)
calendar days advance notice of City's intent to utilize the needed property.
Section 7. 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, 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 8. 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.
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Section 9. Insurance.
Licensee shall maintain at all times during the term of this Agreement comprehensive
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 10. 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 11. No Assignments.
Licensee shall not assign its rights under this Agreement to any third party without
the written consent of the City.
Section 12. 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:
Dave Adams, City Manager
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Section 13. Attorney's Fees
Licensee:
Joseph and Kendra Philip
Husband and wife
28241 Crown Valley Pkwy, #F-174
Laguna Niguel, CA 92677
John and Erin Tomalsoff
Husband and wife
#31 Rosings
Mission Viejo, CA 92692
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.
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Section 14. Entire Aoreement.
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
by any party hereto which is not contained herein shall be binding or valid.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
CITY OF SAN JUAN CAPISTRANO
By: 0to � 46z'`
David M. Sw rdlin, Mayor
By: &r `&
Erin Tolmasoff
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Not t z p a r I o I t he lime,
EXHIBIT A