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07-1016_TOLMASOFF, JOHN & ERIN_License AgreementAMENDED LICENSE AGREEMENT This Amended License Agreement is entered into this /61�day of October 2007, 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, approximately 2.04 acres and APN 650-023-08, approximately 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 (ExhibitA - "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, including water usage, for Christmas tree farm purposes. Section 2. 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. 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. 0 0 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 event 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 special event parking area. No other uses shall be allowed on Area B. 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 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 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, 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. 0 0 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. 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. 0 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. Section 14. 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 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. ATTE; so APPROVED T FORM: By: John R. SAW, City Attorney By: J, Jo Phili C� 0 0 • 26221 9832 1 28802 298 ?6 29812 .T 29831 29622 26241 29801 26252 29811 6231 29922 26242 29821 29831 26232 29912 29847 29902 29851 - 29911 /Q - 29861 / 0 29871 aY' 'J'O 29881 Area A - Tree Farn O APN: 650-023-09 30291 1 Area B - Special Event Parking Only APN: 650-023-08 Copyright 2006. FARES. Customer Data. Digital Map Products, E.\cjaoobsWXD1Cindy_Rua H\EWbd0l.pdt • 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 0 0 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 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, 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. 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. Indemnitv. 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. 0 Section 14. 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 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: 0"to David M. Sw rdlin, Mayor By: &» &4ii1,1. Erin Tolmasoff fell 0 0 EXHIBITA 32400 PASEO ADELANTO SAN JUAN CAPISTRANO, CA 92675 (949) 493.1171 (949) 493-1053 FAX www. sanjuancapistrano. org TRANSMITTAL TO: Joseph and Kendra Philip Mountain Pines Christmas Tree Farm 28241 Crown Valley Pkwy, # F-174 Laguna Niguel, CA 92677 John and Erin Tomalsoff Mountain Pines Christmas Tree Farm 31 Rosings Mission Viejo, CA 92692 DATE: October 18, 2007 FROM: Maria Morris, Deputy City Clerk tnuuuR 1961 1776 RE: Amended License Agreement — City Tree Farm An original amended license agreement is enclosed for your records. Cc: Cindy Russell, Assistant City Manager MEMBERS OF THE CITY COUNCIL San Juan Capistrano: Preserving the Past to Enhance the Future ^J Printed on 100% recycled paper SAM ALLEVATO THOMAS W. HRIBAR MARK NIELSEN JOE SOTO DR. LONDRES USO 32400 PASEO ADELANTO SAN JUAN CAPISTRANO, CA 92675 (949) 4931171 (949) 493-1053 EAx www.sanjuancapistrano.org August 2, 2006 Joseph and Kendra Philip Mountain Pines Christmas Tree Farm 28241 Crown Valley Pkwy, # F-174 Laguna Niguel, CA 92677 Dear Mr. & Mrs. Philip MEMBERS OF THE CITY COUNCIL SAMALLEVATO DIANE BATHGATE VIYATT HART JOE SOTO DAVID M. SWERDLIN A fully executed, original License Agreement related to use of 1.5 acre portion of open space for use as a Christmas Tree Farm is enclosed for your records. , Thank you for forwarding documentation confirming current compliance with the terms of insurance under your agreement with the city. You may proceed with work under this agreement in coordination with the project manager, Cindy JRussell, Administrative Services Director (949) 443-6301. Clerk cc: Cindy Russell, Administrative Services Director; John and Erin Tomalsoff; Charles Petzler San Juan Capistrano: Preserving the Past to Enhance the Future Printed on 100% Recycled Paper 0 0 IRESOLUTION NO, 06-08-01-0 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, (TERMINATING THE LICENSE AGREEMENT FOR THE CHRISTMAS TREE FARM WITH PELTZER FARMS DATED OCTOBER 21, 2003 AND APPRWING THE LICENSE AGREEMENT WITH MOUNTAIN PINES CHRISTMAS TREE FARM WHEREAS, On October 21, 2003, the City of San Juan Capistrano (City) entered into a License Agreement with Peltzer Farms for use of land located within the Northwest Open Space Property for the operations of a Christmas Tree Farm and pumpkin patch; and WHEREAS, Peltzer Farms has notified the City that they wish to sell the operation and Mountain Pines Christmas Tree Farms wishes to acquire the operations; and, WHEREAS, it is the desire of the City Council to terminate the license agreement with Peltzer Farms dated October 17, 2003 and approve a license agreement with Mountain Pines Christmas Tree Farm to continue the agricultural operation of a Christmas Tree Farm and pumpkin patch at this location. ' NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of San Juan Capistrano does hereby terminate the license agreement with Peltzer Farms dated October 17, 2003 and approves a license agreement with Mountain Pines Christmas Tree Farm. PASSED, APPROVED, AND ADOPTED this 1$' day of August 2006. 0-4� DAVID M. S ER LIN, MAYOR ATTEST; CII Y CLtRK Page 1 of 1 811P2006 0 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) Ss. CITY OF SAN JUAN CAPISTRANO ) E I, MARGARET R. MONAHAN, appointed City Clerk of the City of San Juan Capistrano, do hereby certify that the foregoing Resolution No. 06-08-01-02 was duly adopted by the City Council of the City of San Juan Capistrano at a Regular meeting thereof, held the 1" day of August 2006, by the following vote: AYES: COUNCIL MEMBERS: Hart, Bathgate, Allevato, Soto and Mayor Swerdlin NOES: COUNCIL MEMBER: None ABSENT: COON IL MEMBER: None G RET R. MONAHAN, City Clerk • AGENDA REPORT TO: Dave Adams, City Manager 1� FROM: Cindy Russell, Assistant City Manager 0 10/16/2007 SUBJECT: Consideration of an Amended License Agreement for the City Tree Farm (Mountain Pines Christmas Tree Farm) RECOMMENDATION: By motion, adopt a Resolution approving the Amended License Agreement with Mountain Pines Christmas Tree Farm to provide for use of the adjacent property for parking during City -permitted special events only, and authorize the Mayor to execute the agreement on behalf of the City. SITUATION: The City -owned Northwest Open Space includes a small parcel between Camino Capistrano and Interstate 5, north of Trabuco Creek that has been operated as a live Christmas Tree Farm since the mid-1960s. The Northwest Open Space Master Plan identified this use to be on-going. Currently, Mountain Pines Christmas Tree Farm (Mountain Pines) operates a Christmas Tree Farm and Pumpkin Patch on the property. They are permitted to grow strawberries, vegetables, run a vendor fruit stand and bring in cut trees to supplement their inventory on the property subject to written approval by the City. The agreement requires that the Licensee's replant new pine trees on at least one quarter (1/4) of the property each year, and to pay all operational costs, including water usage, for the farm purposes. As part of the annual pumpkin patch and Christmas tree sales event, Mountain Pines conducts a City approved special event which includes children's rides and activities, pony rides, lights, etc. These events have been very successful and are well attended. However, the property identified in the existing license agreement does not provide for sufficient parking during these special events. Visitors to the City's agricultural area are faced with parking along Camino Capistrano and turning in and out of the small Tree Farm along a curved part of the road with limited visibility. In an effort to provide a safe access for visitors during the special events, Mountain Pines has proposed to use the remainder of the Tree Farm property and the City's adjacent property for parking and safe pedestrian access during these events only. These areas would not be used during the remainder of the year for any purpose. Agenda Report Page 2 0 October 16, 2007 The amended license agreement includes language allowing access to these areas for the special event parking only. The remainder of the license agreement contains the same terms and conditions as the current license agreement with the term running through January 31, 2011. Staff recommends approval of the amended license agreement with Mountain Pines Christmas Tree Farm. COMMISSION/BOARD REVIEW AND RECOMMENDATIONS: Not Applicable FINANCIAL CONSIDERATIONS: The City currently receives approximately $750 rent annually from this license agreement and has no associated costs. It is anticipated that this rent level will continue to occur. NOTIFICATION: Joe and Kendra Philip, Mountain Pines Christmas Tree Farm* John and Erin Tomalsoff, Mountain Pines Christmas Tree Farm* * Agenda Report included RECOMMENDATION: By motion, adopt a Resolution approving the Amended License Agreement with Mountain Pines Christmas Tree Farm to provide for use of the adjacent property for parking during City -permitted special events only, and authorize the Mayor to execute the agreement on behalf of the City. Respectfully submitted,` C.c/k-- Cind�ll Assistant City Manager Attachments: 1. Resolution 2. Amended License Agreement 3. Location Map 0 0 RESOLUTION NO. 07-10-16-xa- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, APPROVING AN AMENDED LICENSE AGREEMENT WITH MOUNTAIN PINES CHRISTMAS TREE FARM WHEREAS, On August 1, 2006, the City of San Juan Capistrano (City) entered into a License Agreement with Mountain Pines Christmas Tree Farms (Mountain Pines) for the use of land located within the Northwest Open. Space Property for the operations of a Christmas Tree Farm and pumpkin patch; and WHEREAS, Mountain Pines conducts City -permitted special events during the fall and holiday season each year in conjunction with the sale of pumpkins and trees requiring parking and safe pedestrian access for visitors to the site; and, WHEREAS, the property identified in the current license agreement does not provide for sufficient parking during these special events resulting in visitors parking on Camino Capistrano and walking along the shoulder of the road; and, WHEREAS, it is the desire of the City Council to allow Mountain Pines to use of the additional City property during these special events only for the purpose of visitor parking and on-site pedestrian access to the site. NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of San Juan Capistrano does hereby approve an amended license agreement with Mountain Pines Christmas Tree Farm. PASSED, APPROVED, AND ADOPTED this 16`h day of October 2007. SAM ALLEVATO, MAYOR ATTEST: MARGARET R. MONAHAN, CITY CLERK ATTACHMENT 0 0 AMENDED LICENSE AGREEMENT This Amended License Agreement is entered into this day of October 2007, 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, approximately 2.04 acres and APN 650-023-08, approximately 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 1. 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, including water usage, for Christmas tree farm purposes. Section 2. 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. 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. ATTACHMENT 2 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 event 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 special event parking area. No other uses shall be allowed on Area B. 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 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 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, 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. 0 0 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 B. 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 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 parry 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. E Licensor: Dave Adams, City Manager City of San Juan Capistrano 32400 Paseo Adelanto. San Juan Capistrano, CA 92675, Section 13. Attorney's Fees. C� 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. Section 14. 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 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. ATTEST: By: Meg Monahan, City Clerk APPROVED T FORM: By: John R. SNW, City Attorney CITY OF SAN JUAN CAPISTRANO i - 0 Sam Allevato, Mayor Joseph C� • By: Kendra Philip By: John Tolmasoff By: Erin Tolmasoff 29943 26221 y� aaw, 29802 2982 63 29612 ? 29831 29622 26241 / 29801 26252 29811 6231 29922 26242 29821 29831 26232 29912 298429851 29902 29911 /A 29861 �� 29817 �'O 29681 Area A -Tree Farn L/4(:�� O� 1 c� 30291 APN: 650-023-09 Area B - Special Event Parking Only APN: 650-023-08 Copyright 2006. FARES. Customer Data. D191W Map Products. E:$4aa Exhibit A 0 0 ATTACHMENT 0 32400 PASEO ADELANTO SAN JUAN CAPISTRANO, CA 92675 (949) 493.1171 (949) 493.1053 FAX www.sanjuancapistrano.org JVAM / / II[IIIIllIFI • �n„/usH1 I 1961 1776 MEMBERS OF THE CITY COUNCIL SAM ALLEVATO THOMAS W. HRISAR MARK NIELSEN JOE SOTO DR. LONORES USO NOTIFICATION OF MEETING OF POTENTIAL INTEREST OF THE SAN JUAN CAPISTRANO CITY COUNCIL The City Council of San Juan Capistrano will meet at 7:00 p.m. on Tuesday, October 16, 2007 in the City Council Chamber in City Hall, to consider: "Consideration of an Amended License Agreement for the City Tree Farm (Mountain Pines Christmas Tree Farm)" - Item No. D9. If you have specific thoughts or concerns regarding this item, you are encouraged to participate in this decision making process. You can communicate with the City Council through correspondence addressed to the Council and/or by attending the meeting and speaking to the.Council during the public meeting. Correspondence related to this item must be received at the City Clerk's office by 5:00 p.m. on Monday, October 15, 2007 to allow time for the Council to consider its content. If you would like to speak at the meeting, please complete a yellow "Request to Speak" form found inside the entrance to the Council Chamber. This form is turned in at the staff table, just in front of the Council dais. You will be called to speak by the Mayor when the item is considered. You have received this notice at the request of the City staff member Cindy Russell, Assistant City Manager. You may contact that staff member at (949) 443-6301 with any questions. The agenda, including agenda reports, is available to you on our web site: www.sanmuancai)istrano.org. If you would like to subscribe to receive a notice when agendas are posted to the web site, please make that request by sending an e-mail to: cityclerk(cD san ivancapistrano.org. Meg Monahan, MMC City Clerk cc: John & Erin Tomalsoff; Joseph & Kendra Philip; Cindy Russell, Assistant City Manager * Received staff report San Juan Capistrano: Preserving the Past to Enhance the Future A �, Printed on 100%recycletl paper RESOLUTION NO. 07-10-16- o l A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, APPROVING AN AMENDED LICENSE AGREEMENT WITH MOUNTAIN PINES CHRISTMAS TREE FARM WHEREAS, On August 1, 2006, the City of San Juan Capistrano (City) entered into a License Agreement with Mountain Pines Christmas Tree Farms (Mountain Pines) for the use of land located within the Northwest Open Space Property for the operations of a Christmas Tree Farm and pumpkin patch; and WHEREAS, Mountain Pines conducts City -permitted special events during the fall and holiday season each year in conjunction with the sale of pumpkins and trees requiring parking and safe pedestrian access for visitors to the site; and, WHEREAS, the property identified in the current license agreement does not provide for sufficient parking during these special events resulting in visitors parking on Camino Capistrano and walking along the shoulder of the road; and, WHEREAS, it is the desire of the City Council to allow Mountain Pines to use of the additional City property during these special events only for the purpose of visitor parking and on-site pedestrian access to the site. NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of San Juan Capistrano does hereby approve an amended license agreement with Mountain Pines Christmas Tree Farm. PASSED, APPROVED, AND ADOPTED this 61h day of October 2007. AM ALLEVATO, MAYOR ATTEST: 4_061A� /400 R. MONAHAN. CITY Page 1 of 1 10/16/2007 0 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF SAN JUAN CAPISTRANO ) I, MARGARET R. MONAHAN, appointed City Clerk of the City of San Juan Capistrano, do hereby certify that the foregoing Resolution No. 0740-1"1 was duly adopted by the City Council of the City of San Juan Capistrano at a Regular meeting thereof, held the le day of October 2007, by the following vote: AYES: COUNCIL MEMBERS: Nielsen, Hribar, Uso, Soto, and Mayor Allevato NOES: COUNCIL MEMBER: None ABSEABSE/COU CIL MEMBER: None 1 P,, (� MARGARET R. MONAHAN. Citv Clerk r- 81112006 AGENDA REPORT D16 TO: Dave Adams, City Manager FROM: Cindy Russell, Administrative Services Director SUBJECT: Consideration of Termination of License Agreement (Peltzer Farms), and Approval of License Agreement (Mountain Pines Christmas Tree Farm) RECOMMENDATION: By motion, adopt a Resolution terminating the License Agreement with Peltzer Farms dated October 21, 2003 and approving the License Agreement with Mountain Pines Christmas Tree Farm for the Christmas Tree Farm located on the Northwest Open Space Property, and authorize the Mayor to execute the agreement on behalf of the City. SITUATION: The City -owned Northwest Open Space includes a small parcel between Camino Capistrano and Interstate 5, north of Trabuco Creek that has been operated as a live Christmas Tree Farm since the mid-1960s. The Northwest Open Space Master Plan identified this use to be on-going. Currently, Peltzer Farms operates a Christmas Tree Farm and Pumpkin Patch on the property. Additionally, they are permitted to grow strawberries, vegetables, run a vendor fruit stand and bring in cut trees to supplement their inventory on the property subject to written approval by the City. The agreement requires that the Licensee's replant new pine trees on at least one quarter (1/4) of the property each year, and to pay all operational costs, including water usage, for the farm purposes. The current licensee, Peltzer Farms has sold the operation to Mountain Pines Christmas Tree Farm. In order to continue this agricultural operation on the City open space it is necessary to terminate the existing license agreement with Peltzer Farms and enter into a new agreement with Mountain Pines Christmas Tree Farm. The license agreement contains the same terms and conditions as the previous agreement with the term running through January 31, 2011. Staff recommends the termination of the license agreement with Peltzer Farms and the approval of the license agreement with Mountain Pines Christmas Tree Farm. Agenda Report Page 2 COMMISSION/BOARD REVIEW AND RECOMMENDATIONS: Not Applicable FINANCIAL CONSIDERATIONS: August 1, 2006 The City currently receives approximately $750 rent annually from this license agreement and has not associated costs. It is anticipated that this rent level will continue to occur. NOTIFICATION: Charlie Peltzer, Peltzer Farms" Joe and Kendra Philip, Mountain Pines Christmas Tree Farm" John and Erin Tomalsoff, Mountain Pines Christmas Tree Farm' Agenda Report included RECOMMENDATION: By motion, adopt a Resolution terminating the License Agreement with Peltzer Farms dated October 21, 2003 and approving the License Agreement with Mountain Pines Christmas Tree Farm for the Christmas Tree Farm located on the Northwest Open Space Property, and authorize the Mayor to execute the agreement on behalf of the City. Respectfully submitted, &� Cindy Russell Administrative Services Director Attachments: 1. Resolution 2. License Agreement 3. Location Map 0 RESOLUTION NO. 06-roc-xx- 0 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, (TERMINATING THE LICENSE AGREEMENT FOR THE CHRISTMAS TREE FARM WITH PELTZER FARMS DATED OCTOBER 21, 2003 AND APPROVING THE LICENSE AGREEMENT WITH MOUNTAIN PINES CHRISTMAS TREE FARM WHEREAS, On October 21, 2003, the City of San Juan Capistrano (City) entered into a License Agreement with Peltzer Farms for use of land located within the Northwest Open Space Property for the operations of a Christmas Tree Farm and pumpkin; and, WHEREAS, Peltzer Farms has notified the City that they wish to sell the operation and Mountain Pines Christmas Tree Farms wishes to acquire the operations; and, WHEREAS, it is the desire of the City Council to terminate the license agreement with Peltzer Farms dated October 17, 2003 and <approve a license agreement with Mountain Pines Christmas Tree Farm to continue the agricultural operation of a Christmas Tree Farm and pumpkin patch at this location. NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of San Juan Capistrano does hereby terminate the license agreement with Peltzer Farms dated October 17, 2003 and approves a license agreement with Mountain Pines Christmas Tree Farm. PASSED, APPROVED, AND ADOPTED this 15` day of August 2006. DAVID M. SWERDLIN, MAYOR ATTEST: MARGARET R. MONAHAN, CITY CLERK ATTACHMENT 0 0 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 ATTACHMENT 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 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, 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. 0 0 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. 0 Section 14. 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 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. ATTEST: Meg Monahan, City Clerk APPROVED AS TO F M: By: 4" / John R. 9haw, City Attorney CITY OF SAN JUAN CAPISTRANO 0 31 David M. Swerdlin, Mayor John Tolmasoff Z'0'40 a&4& 0 0 EXHIBIT A 0 9 ATTACHMENT 32400 PASEO ADELAN'TO SAN JUAN CAPISTRANO, CA 92675 (949) 493-1171 (949) 493-1053 FAX www.sanjuancapi.vtrano.org ii lo[oevoKITED Bunnem f961 1776 MEMBERS OF THE CIN COUNCIL NOTIFICATION OF MEETING OF POTENTIAL INTEREST OF THE SAN JUAN CAPISTRANO CITY COUNCIL SAM ALLEVATO DIANE BATHGATE WYATT HART JOE SOTO DAVID M. SWERDLIN The City Council of San Juan Capistrano will meet at 7:00 p.m. on August 1, 2006 in the City Council Chamber in City Hall, to consider: "Consideration of Termination of License Agreement (Peltzer Farms), and Approval of License Agreement (Mountain Pines Christmas Tree Farm)" — Item No. D16. If you have specific thoughts or concerns regarding this item, you are encouraged to participate in this decision making process. You can communicate with the City Council through correspondence addressed to the Council and/or by attending the meeting and speaking to the Council during the public meeting. Correspondence related to this item must be received at the City Clerk's office by 5:00 p.m. on Monday, July 31, 2006 to allow time for the Council to consider its content. If you would like to speak at the meeting, please complete a yellow "Request to Speak" form found inside the entrance to the Council Chamber. This form is turned in at the staff table, just in front of the Council dais. You will be called to speak by the Mayor when the item is considered. You have received this notice at the request of the City staff member Cindy Russell, Administrative Services Director. You may contact that staff member at (949) 949-443- 6301 with any questions. The agenda, including agenda reports, is available to you on our web site: www.sanivancapistrano.org. If you would like to subscribe to receive a notice when agendas are posted to the web site, please make that request by sending an e-mail to: council-agendascouncil-agendas a(bsanivancapistrano.org. Meg Monahan, CMC City Clerk cc: Charlie Peltzer, Peltzer Farms`; Joe and Kendra Philop, Mountian Pines Christmas Tree Farm*; John and Erin Tomalsoff, Moutain Pines Christmas Tree Farms'; Cindy Russell, Administrative Services Director Received staff report San Juan Capistrano: Preserving the Past to Enhance the Future �� Printed on 100% Recycled Paper Today's Date: July 25, 2006 CONTRACT TRANSMITTAL CIP No. (if any): Transmittal Routing (Check All That Apply) ❑ City Attorney ❑ City Manager ® City Clerk Project Manager's Last Name: Russell Phone Extension: 6302 Council or CRA Meeting Date (if applicable): August 1 2006 APPROVING AUTHORITY: (Check One) `U Mayor ❑ CRA Chair ❑ City Manager Provide (1) executed original contract for each signing party, including the City. If the agreement is to be recorded — only (1) original will be recorded with certified copies going to other parties. Please provide the mailing address of any party to receive an agreement — unless the mailing address is included within the body of the agreement: Names Street I city I St I zip Charles Petzler 8415 E Cha man Ave I orange ICA 192869 Joseph and Kendra Philip 28241 Crown Valley Pkwy, X-174 Laguna Ni uel Ca 92677 John and Erin Tomalsoff 31 Rosins Mission Viejo Ca 92692 Form Date: 01-2004 D-7 Ll RESOLUTION NO. 06-08-01-0 2 r A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, (TERMINATING THE LICENSE AGREEMENT FOR THE CHRISTMAS TREE FARM WITH PELTZER FARMS DATED OCTOBER 21, 2003 AND APPROVING THE LICENSE AGREEMENT WITH MOUNTAIN PINES CHRISTMAS TREE FARM WHEREAS, On October 21, 2003, the City of San Juan Capistrano (City) entered into a License Agreement with Peltzer Farms for use of land located within the Northwest Open Space Property for the operations of a Christmas Tree Farm and pumpkin patch; and WHEREAS, Peltzer Farms has notified the City that they wish to sell the operation and Mountain Pines Christmas Tree Farms wishes to acquire the operations; and, WHEREAS, it is the desire of the City Council to terminate the license agreement with Peltzer Farms dated October 17, 2003 and approve a license agreement with Mountain Pines Christmas Tree Farm to continue the agricultural operation of a Christmas Tree Farm and pumpkin patch at this location. NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of San Juan Capistrano does hereby terminate the license agreement with Peltzer Farms dated October 17, 2003 and approves a license agreement with Mountain Pines Christmas Tree Farm. AT PASSED, APPROVED, AND ADOPTED this 15t day of August 2006. y � DAVID M. S ERDLIN, MAYOR MONAHAN. CITY CLERK Page 1 of 1 8/1/2006 STATE OF CALIFORNIA ) COUNTY OF ORANGE CITY OF SAN JUAN CAPISTRANO ) I, MARGARET R. MONAHAN, appointed City Clerk of the City of San Juan Capistrano, do hereby certify that the foregoing Resolution No. 06-08-01-02 was duly adopted bythe City Council of the City of San Juan Capistrano at a Regular meeting thereof, held the 18` day of August 2006, by the following vote: AYES: COUNCIL MEMBERS: Hart, Bathgate, Allevato, Soto and Mayor Swerdlin NOES: COUNCIL MEMBER: None ABSENT: COUN IL MEMBER: None , City Clerk