08-0506_SOUTH COAST FARMS_License Agreement (2)0 0
LICENSE AGREEMENT
This License Agreement ("Agreement') is made this Qom— day of'008, by and
between the City of San Juan Capistrano, a municipal corporation, and the n Juan
Capistrano Community Redevelopment Agency, a public body, corporate ari politic (known
jointly hereinafter as the "LICENSOR"), and South Coast Farms ("LICENSEE").
RECITALS
WHEREAS, LICENSOR is the owner of the 28.225 acre farm in the City of San Juan
Capistrano, California, generally located at the northwest corner of Alipaz Street and Camino
Del Avion, which property was acquired to be maintained as open -space within the City; and
WHEREAS, LICENSEE desires to conduct farming operations on 27.725 acres of the
property, with 0.50 acres set aside for City use; and
WHEREAS, LICENSEE has farming expertise and experience and desires to manage
the maintenance and operations of all agricultural activities on the property; and
WHEREAS, LICENSEE and LICENSOR had entered into a Lease Agreement dated
June 15, 1999 for a term of 10 years, which was subsequently revised by a Lease Agreement
dated June 6, 2000, which the parties wish to terminate in return for the grant of license and
the terms and conditions herein.
LICENSE
NOW, THEREFORE, LICENSOR and LICENSEE do hereby mutually agree as
follows:
Section 1. Grant of License/Term.
(a) Grant of License. LICENSOR hereby grants to LICENSEE a License to manage,
maintain, and operate a fruit and vegetable farm on the property, as depicted on the
site plan attached hereto as Exhibit "A" and incorporated herein by reference
(hereinafter referred to as the "Premises'). Provided, however, that this License does
not include the Joel Congdon Residence area as depicted in Exhibit "A," which is
subject to a separate license. LICENSEE shall provide the expertise, supervision and
management over the farm operations, and LICENSEE shall own all crops produced
on the Premises.
(b) Term. The term of this Agreement with regard to the Premises, shall be for a period of
ten (10) years, commencing upon the date first above written unless sooner
terminated by mutual consent of LICENSOR and LICENSEE.
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Section 2. License Fee.
(a) LICENSOR shall receive from LICENSEE a license fee of twenty-five thousand dollars
($25,000) annually, to be paid on a quarterly basis, based on calendar year quarters
and prorated accordingly, for the first full five (5) years of the license term.
(b) Ninety days prior to the end of the fifth year of the license term, the license fee shall be
renegotiated between LICENSOR and LICENSEE with the intent being that the agreed
upon license fee for the subsequent five-year term of the license shall match the
market rate for similarly situated properties, provided that in no case shall the license
fee be reduced as a result of the negotiations.
(c) In the event that the parties cannot come to agreement within forty-five (45) days of
commencement of license fee negotiations, either party may call for a binding
arbitration process wherein each side selects an arbitrator and a third arbitration panel
member is then chosen by the two selected arbitrators. The three-person panel shall
then conduct an informal hearing to receive evidence and argument regarding the
appropriate license fee. The panel shall render a final and binding decision within
thirty (30) days of convening the panel. LICENSEE shall continue to pay the license
fee in subsection (a) during the pendency of the proceedings subject to retroactive
adjustment upon the establishment of the new fee pursuant to this subsection.
Section 3. Nature of Uses Permitted Under the License and Maintenance of Premises.
(a) Operation of Farm. LICENSEE shall be responsible for the supervision and
management of every aspect of running a produce farming operation for human
consumption on the Premises in a business like manner.
The existing retail stand may be utilized by LICENSEE for produce retail sales only.
Any expansion, regardless of size or scope, is not permitted under this Agreement
unless LICENSOR's written approval is first obtained.
LICENSEE's supervision and maintenance shall include, but not be limited to:
the employment, supervision and direction of all employees engaged in the
farming operation;
providing for the maintenance of all equipment and supervising its use in a
safe and prudent manner;
iii. soil preparation, planting, fertilizing, irrigating, pesticide and herbicide
applications, and the harvesting of all crops;
iv. the marketing and sale of crops;
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maintenance of records and accounting for all revenues and expenditures,
including employee payroll and related records;
vi. 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;
vii. management and maintenance of all on-site improvements, provided that any
temporary housing is subject to City's approval based on all applicable
provisions of the City's Land Use Code.
LICENSEE shall perform all operations 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.
(b) Maintenance of Premises. LICENSEE agrees to accept the Premises in its present
condition as of the date of execution of this Agreement. Except for the Congdon
Residence, LICENSEE may use the buildings and existing structures on the Premises
for LICENSEE's use in farming operations. LICENSEE shall maintain, at LICENSEE's
expense, the Premises, including all existing structures and all equipment owned and
furnished by LICENSEE, in a reasonable state of repair and working order.
LICENSEE's maintenance requirements shall include, but shall not be limited to the
following:
i. Fruit Trees. LICENSEE shall plant fruit trees on the Premises and shall be
responsible for properly maintaining them. There is not a restriction regarding
the height of the fruit trees; however, LICENSEE shall be consistent and make
efforts to keep the trees at a height that will not hinder or disrupt views into the
farm or surrounding areas.
Shrubs. The shrubs on the Premises block the wind, limit road dust, and
reduce the amount of debris entering the Premises. LICENSEE is responsible
for sufficiently maintaining the shrubs in.order to keep harmful elements away
from the crops.
(c) Marketing and Sale of Crops. LICENSEE shall be responsible for the marketing and
sale of crops produced on the Premises. Crops will be sold at retail at the retail stand
located on the Premises and to commercial produce wholesalers and distributors.
LICENSEE shall provide a schedule to LICENSOR of proposed days and hours of
operation of the on-site retail location.
Importing Items from outside vendors. LICENSEE, in an effort to ensure that
business stays consistent, even in particularly bad years, shall have the
authority to purchase certain produce items from outside vendors to sell at
retail at the Premises.
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(d) Condition of Premises. LICENSEE accepts the Premises in its present condition upon
execution of this License. LICENSOR makes no warranty of the suitability of the
Premises for growing crops. LICENSEE agrees, at LICENSEE's expense, to use
reasonable care to control all weeds, noxious or otherwise, growing on the Premises,
including those growing in drainage ditches. LICENSEE shall furnish all labor and
materials required to eliminate and otherwise reasonably control all rodents, insects
and other pests on the Premises. LICENSEE agrees to farm the Premises in a
manner reasonably calculated to protect the soil and maintain the fertility through the
use of fertilizers and chemicals in accordance with good farming practices as generally
followed and recognized in Orange County, California. LICENSEE agrees, at
LICENSEE's expense, to keep fences, ditches and borders of the Premises in good
condition and in repair at all times, reasonable wear and tear excepted. The duly
authorized representative of LICENSOR may enter upon the Premises and all
structures and buildings thereon, or any portion thereof, at a reasonable time for the
purposes of inspection.
(e) Access Road. The access road as shown in Exhibit "A," shall be accessible for use by
representatives of the wireless phone company to gain access to the antenna site
located on the Sports Park field adjacent to the Premises. The foundation of the road
shall be comprised of gravel at no cost to LICENSEE. In addition, a gate and
corresponding locks shall be added and maintained at no cost to LICENSEE.
(f) Fourth of July Celebration. LICENSOR shall have use and access to the Premises in
order to host the fireworks celebration for the community from the Premises each July
4th on an annual basis throughout the term of this License. This access shall include,
but not be limited to, all set up, coordination, and take-down activities necessary to fire
the fireworks from the Premises.
Section 4. No Assignments.
LICENSEE shall not assign this License or any interest herein, or sublet the Premises
or any part thereof, or license the use of all or any portion of the Premises or business
conducted therein or thereon, or encumber or hypothecate the Premises or this
License, without first obtaining the written consent of LICENSOR. Any assignment,
subletting, licensing, encumbering, or hypothecating of the Premises or this License
without such prior written consent of LICENSOR, shall be void and shall be cause for
cancellation of this License by LICENSOR at its option.
Section 5. Water.
An existing water well and backbone irrigation system may be available to LICENSEE
for irrigation uses, with LICENSOR being responsible for the maintenance of the well.
The LICENSOR is responsible for providing a source of supply to LICENSSEE, which
may include well water, recycled water, or domestic water. LICENSEE is required to
pay for water at no more then the current agricultural rate, and any costs required in
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keeping the irrigation system operational, regardless of the source of supply.
LICENSEE will not be obligated to pay for differences in water rate costs. LICENSEE
agrees to work cooperatively with LICENSOR to coordinate watering schedules
between the Premises and the City Sports Park. LICENSEE shall not be responsible
for water costs for the City Sports Park.
Section 6. Utilities.
Subject to Section 5 above, LICENSEE is fully and solely responsible for providing any
utility service required for the farm maintenance and operation.
Section 7. Time of the Essence.
Time is of the essence of each and every provision, covenant, and condition herein
contained and on the part of LICENSEE to be done and performed.
Section 8% Default.
(a) If LICENSEE defaults in the payment of the license fee, or any additional
applicable license payments, or defaults in the performance of any of the other
covenants or conditions hereof, LICENSOR may give LICENSEE notice of such
default and if LICENSEE does not cure any such default within three (3) days, or
such other time period as specified in the notice of default, after the giving of such
notice, then LICENSOR may terminate this license on not less than ten (10) days'
notice to LICENSEE. On the date specified in such notice the term of this license
shall terminate, and LICENSEE shall then quit and surrender the Premises to
LICENSOR, but LICENSEE shall remain liable as hereinafter provided. If this
license shall have been so terminated by LICENSOR, LICENSOR may at any time
thereafter resume possession of the Premises by any lawful means and remove
LICENSEE or other occupants and their effects.
(b) If LICENSEE breaches any covenant or condition of this license, LICENSOR may,
on reasonable notice to LICENSEE (except that no notice need be given in case
of emergency), cure such breach at the expense of LICENSEE. The reasonable
amount of all expenses, including attorney's fees, incurred by LICENSOR in so
doing shall be deemed additional fees payable on demand.
Section 9. Termination Due to Bankruptcy or insolvency.
In the event proceedings in bankruptcy are commenced by LICENSEE, or LICENSEE
is found to be in a state of insolvency, then in such event, LICENSOR shall have the
right to terminate this Agreement and all further rights and obligations thereunder, by
ten (10) days' notice in writing to LICENSEE, in which event, on the expiration of the
ten (10) days from mailing of the notice, this License shall automatically terminate.
Section 10. Notices.
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Any notice required to be given under this Agreement shall be in writing and shall be
deemed to have been duly given and received if and when personally served, or forty-
eight (48) hours after being deposited in the United States mail, first class, postage
prepaid, addressed to the intended party at:
LICENSOR:
City of San Juan Capistrano/Redevelopment Agency
City Manager/Executive Director
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
LICENSEE:
George Kibby
South Coast Farms
2268 E. Sandalwood Place,
Anaheim, CA 92806
Section 11. Attorneys' Fees.
If either party commences action against the other party arising out of or in connection
with this License, the prevailing party shall be entitled to have and recover from the
other party reasonable attorney's fees and costs of suit.
Section 12. Surrender of Premises.
LICENSEE shall, at the termination of this License, vacate the Premises in as good
condition as they are in at the time of entry thereon by LICENSEE. Upon vacating,
LICENSEE shall leave Premises free and clear of all rubbish and debris.
Section 13. Insurance.
LICENSEE shall pay for and maintain insurance throughout the life of this License with
general liability coverage of one million Dollars ($1,000,000) minimum coverage per
occurrence, and fire and all risk property damage insurance, insuring all of
LICENSEE's equipment and trade fixtures located on the Premises for full
replacement cost. Said policy shall name LICENSOR as additional insured by
endorsement to the policy and shall be in a form satisfactory to LICENSOR.
LICENSEE will furnish LICENSOR with proof of insurance issued by an insurer
approved by LICENSOR showing the coverage to be in force. LICENSEE's insurance
coverage shall be primary coverage. LICENSOR and LICENSEE each waive the
rights of subrogation that may arise against the other because of any act covered by
insurance. The policy shall provide that modification or cancellation of the policy shall
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not occur without thirty (30) days advance written notice provided by the insurer to
LICENSOR.
Section 14. Indemni .
LICENSEE shall defend, indemnify, and hold harmless LICENSOR, and their
respective elected officials, officers, employees, and agents, from and against any and
all actions, claims, demands, losses, costs, expenses, including legal costs and
attorney's fees, for death or injury to persons or damage to property or the Premises,
or for the pollution thereof and cleanup costs, arising out of or related to LICENSEE's
use of the Premises, except to the extent of such loss as may be caused by
LICENSOR's own negligence, including that of their respective officials, officers,
employees and agents. LICENSOR shall not be held accountable for any preexisting
soil contamination, including those identified in the report dated January 28, 1990,
prepared by Chem Risk, and the report dated December 18, 1990, prepared by South
Coast Geological Services, Inc.
Section 15. Taxes.
Pursuant to Revenue & Taxation Code §107.7, the property interest created herein
may be subject to property taxation and LICENSEE may be subject to property taxes
levied on such interest. In no event shall LICENSOR be liable for any taxes owed as a
result of this License or LICENSEE's use of the Premises.
Section 16. No Relocation Benefits.
This License is not intended to convey a property interest but to permit LICENSEE to
use the Premises as provided for herein. LICENSEE acknowledges the rights granted
by State and/or Federal Relocation Assistance Laws and regulations and,
notwithstanding any other provision of this License, expressly waives all such present
and future rights, if any, to which LICENSEE might otherwise be entitled from
LICENSOR or the City of San Juan Capistrano with regard to this License and the
business operated on the Premises. LICENSEE shall not be entitled to relocation
assistance, relocation benefits, or compensation for loss of goodwill upon the
termination of this License.
Section 17. Entire Agreement.
The terms in this License constitutes the entire understanding and agreement between
the Parties and supersedes all previous negotiations between them pertaining to the
subject matter thereof.
Section 18. Termination of Past Leases. Licenses and Agreements.
This License and the terms and conditions hereof supersede and shall terminate the
leases entered into by the parties dated June 15, 1999 and June 6, 2000, and
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any other leases, licenses, agreements or understandings pertaining to the subject
matter hereof.
IN WITNESS WHEREOF, LICENSOR and LICENSEE have caused this License
to be executed on the date and year first written above.
LICENSEE:
SOUTHCOAST
By:.� . )J&
LICENSOR:
CITY OF SAN JUAN CAPISTRANO,
A California municipal corporation
IN
0
APPROVED AS TO FORM:
bov, f0a.o��
Omar Sandoval, City Attorney
[ADDITIONAL SIGNATURE PAGE FOLLOWS]
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SAN JUAN CAPISTRANO COMMUNITY
REDEVELOPMENT AGENCY,
a public body corporate and politic
By:
Mak Nielsen, Cha& man
AtT ;
if
Marg -161 R. Mon n, A6&ncy cretary
APPROVED AS TO FORM:
Omar Sn val, Agency Co nsel
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KINOSHITA FARM
I CityGIS 6.0
i'
Copyright O 2006 All Rights Reserved. The information contained herein is the proprietary property of the
contributor supplied under license and may not be approved except as licensed by Digital Map Products.
EXHIBIT A
9
32400 PASEO AOELANTO
SAN JUAN CAPISTRANO, CA 92675
(949) 493.1171
(949) 493.1053 FAx
www.sanjuancapistrano.org
TRANSMITTAL
TO:
George Kibby
South Coast Farms
2268 E. Sandalwood Place
Anaheim, CA 92806
DATE: May 14, 2008
FROM: Maria Morris, Deputy City Clerk (949) 443-6309
RE: License Agreement — Kinoshita Farm
MEMBERS OF THE CITY COUNCIL
SAM ALLEVATO
THOMAS W. HRIBAR
MARK NIELSEN
JOE SOTO
DR. LONDRES USO
Thank you for maintaining documentation confirming compliance with the terms of the
agreement related to insurance.
Please keep in mind this documentation must remain current with our office during the term of
this agreement. If you have questions related to insurance requirements, please contact
me at (949) 443-6309.
If you have questions concerning the agreement, please contact Michelle Perea, Management
Analyst at (949) 487-4313.
An original agreement is enclosed for your records.
Cc: Michelle Perea, Management Analyst
San Juan Capistrano: Preserving the Past to Enhance the Future
«prinletl on 100%recydetl paper
5/6/2008
CRA
AGENDA REPORT B 6
TO: Dave Adams, Executive Director
FROM: Cindy Russell, Interim Public Works Director
SUBJECT: Consideration of a License Agreement for the Kinoshita Farm (South
Coast Farms)
1. By motion, approve the license agreement with South Coast Farms; and,
2. Authorize the Chairman to execute the agreement on behalf of the Community
Redevelopment Agency.
SITUATION:
The City and the San Juan Capistrano Community Redevelopment Agency are owners
of a 28.225 acre farm on the corner of Alipaz and Del Avion, which was acquired to be
maintained as open space within the City (Exhibit A, Attachment 1). South Coast
Farms, the current operator of the farm, has renegotiated with the City to continue to
farm 27.725 acres, with the remaining acreage set aside for future City use. Please
note that the City entered into a separate license agreement on August 8, 2006, with the
San Juan Family Farm Museum (an affiliate of South Coast Farms), for the
maintenance and use of the Joel Congdon House also at this location.
As part of the proposed license agreement (Attachment 1) for farm operations, South
Coast Farms shall continue to maintain a fully functioning farm, as well as a fruit and
vegetable stand over the 10 -year term of the license agreement. At the end of the fifth
year, the annual license rate of $25,000 may be renegotiated. In addition to the annual
license fee, the agreement provides for South Coast Farms to pay the current
agricultural rate for water. South Coast Farms shall own all crops produced at the
property, and shall continue to provide the supervision and management over the farm
operations.
Changes to the agreement include the following items. 1) The farm will be responsible
for paying the current agricultural rate for water. 2) The license agreement specifies
that South Coast Farms will allow for use of the access road, with the City maintaining
the road and gate. 2) Language was added to allow the City to continue to access the
property to host the annual Fourth of July Celebration throughout the term of the
agreement. 3) The previous agreement called for an annual payment of $50,000, but it
was re -negotiated in 2002 to $25,000 after further analysis of costs associated with
being 100% certified organic and increased water costs, as well as evaluating
comparison rents.
AGENDA REPORT •
Paae 2
• April 1, 2008
Since beginning operations on this property in 1999, South Coast Farms has proven to
be a successful farm operator with 100% of its operations being organic. This type of
organic farm means that the residents of San Juan Capistrano are not exposed to any
of the herbicides and pesticides that normal farm operations utilize, while being offered
healthier foods to enjoy. South Coast Farms is well-known for such produce as
strawberries, tomatoes, leafy greens, pumpkins, etc. Additionally, South Coast Farms
has become a part of the community providing educational opportunities for our schools
and residents as well.
Staff recommends that the Community Redevelopment Agency approve the proposed
license agreement with South Coast Farms for continued operation of the farm property.
NOTIFICATION:
George Kibby, South Coast Farms
COMMISSION/BOARD REVIEW, RECOMMENDATIONS:
Not Applicable.
FINANCIAL CONSIDERATIONS:
The proposed license agreement with South Coast Farm provides for a $25,000 per
annum payment. The proposed license agreement requires South Coast Farms to pay
the current agricultural rate for water. The previous agreement called for an annual
payment of $50,000, and it was later re -negotiated to $25,000.
RECOMMENDATION:
1. By motion, approve the license agreement with South Coast Farms; and,
2. Authorize the Chairman to execute the agreement on behalf of the Community
Redevelopment Agency.
Respectfully submitted,
Cindy Russell
Interim Public Works Director
Attachments: 1. License Agreement
Prepared by,
44Y�_
Michelle Perea
Management Analyst
0 0
LICENSE AGREEMENT
This License Agreement ("Agreement') is made this day of _, 2008, by
and between the City of San Juan Capistrano, a municipal corporation, and the San Juan
Capistrano Community Redevelopment Agency, a public body, corporate and politic
(known jointly hereinafter as the "LICENSOR"), and South Coast Farms ("LICENSEE").
RECITALS
WHEREAS, LICENSOR is the owner of the 28.225 acre farm in the City of San
Juan Capistrano, California, generally located at the northwest corner of Alipaz Street
and Camino Del Avion, which property was acquired to be maintained as open -space
within the City; and
WHEREAS, LICENSEE desires to conduct farming operations on 27.725 acres of
the property, with 0.50 acres set aside for City use; and
WHEREAS, LICENSEE has farming expertise and experience and desires to
manage the maintenance and operations of all agricultural activities on the property;
WHEREAS, LICENSEE and LICENSOR had entered into a Lease Agreement
dated June 15, 1999 for a term of 10 years, which was subsequently revised by a Lease
Agreement dated June 6, 2000, which the parties wish to terminate in return for the grant
of license and the terms and conditions herein.
LICENSE
NOW, THEREFORE, LICENSOR and LICENSEE do hereby mutually agree as
follows:
Section 1. Grant of License/Term.
(a) Grant of License. LICENSOR hereby grants to LICENSEE a License to manage,
maintain, and operate a fruit and vegetable farm on the property, as depicted on
the site plan attached hereto as Exhibit "A" and incorporated herein by reference
(hereinafter referred to as the "Premises"). Provided, however, that this License
does not include the Joel Congdon Residence area as depicted in Exhibit "A,"
which is subject to a separate license. LICENSEE shall provide the expertise,
supervision and management over the farm operations, and LICENSEE shall own
all crops produced on the Premises.
(b) Term. The term of this Agreement with regard to the Premises, shall be for a
period of ten (10) years, commencing upon the date first above written unless
sooner terminated by mutual consent of Licensor and Licensee.
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Section 2. License Fee.
(a) LICENSOR shall receive from LICENSEE a license fee of twenty-five thousand
dollars ($25,000) annually, to be paid on a quarterly basis, based on calendar year
quarters and prorated accordingly, for the first full five (5) years of the license term.
(b) Ninety days prior to the end of the fifth year of the license term, the license fee
shall be renegotiated between LICENSOR and LICENSEE with the intent being
that the agreed upon license fee for the subsequent five-year term of the license
shall match the market rate for similarly situated properties, provided that in no
case shall the license fee be reduced as a result of the negotiations.
(c) In the event that the parties cannot come to agreement within forty-five (45) days
of commencement of license fee negotiations, either party may call for a binding
arbitration process wherein each side selects an arbitrator and a third arbitration
panel member is then chosen by the two selected arbitrators. The three-person
panel shall then conduct an informal hearing to receive evidence and argument
regarding the appropriate license fee. The panel shall render a final and binding
decision within thirty (30) days of convening the panel. LICENSEE shall continue
to pay the license fee in subsection (a) during the pendency of the proceedings
subject to retroactive adjustment upon the establishment of the new fee pursuant
to this subsection.
Section 3. Nature of Uses Permitted Under the License and Maintenance of Premises.
(a) Oneration of Farm. LICENSEE shall be responsible for the supervision and
management of every aspect of running a produce farming operation for human
consumption on the Premises in a business like manner.
The existing retail stand may be utilized by LICENSEE for produce retail sales
only. Any expansion, regardless of size or scope, is not permitted under this
Agreement unless LICENSOR's written approval is first obtained.
LICENSEE's supervision and maintenance shall include, but not be limited to:
i. the employment, supervision and direction of all employees engaged in
the farming operation;
ii. providing for the maintenance of all equipment and supervising its use in
a safe and prudent manner;
iii. soil preparation, planting, fertilizing, irrigating, pesticide and herbicide
applications, and the harvesting of all crops;
iv. the marketing and sale of crops;
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maintenance of records and accounting for all revenues and
expenditures, including employee payroll and related records;
vi. 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;
vii. management and maintenance of all on-site improvements, provided that
any temporary housing is subject to City's approval based on all
applicable provisions of the City's Land Use Code.
LICENSEE shall perform all operations 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.
(b) Maintenance of Premises. LICENSEE agrees to accept the Premises in its
present condition as of the date of execution of this Agreement. Except for the
Congdon Residence, LICENSEE may use the buildings and existing structures on
the Premises for LICENSEE's use in farming operations. LICENSEE shall
maintain, at LICENSEE's expense, the Premises, including all existing structures
and all equipment owned and furnished by LICENSEE, in a reasonable state of
repair and working order.
LICENSEE's maintenance requirements shall include, but shall not be limited to
the following:
i. Fruit Trees. LICENSEE shall plant fruit trees on the Premises and shall
be responsible for properly maintaining them. There is not a restriction
regarding the height of the fruit trees; however, LICENSEE shall be
consistent and make efforts to keep the trees at a height that will not
hinder or disrupt views into the farm or surrounding areas.
ii. Shrubs. The shrubs on the Premises block the wind, limit road dust, and
reduce the amount of debris entering the Premises. LICENSEE is
responsible for sufficiently maintaining the shrubs in order to keep harmful
elements away from the crops.
(c) Marketing and Sale of Crops. LICENSEE shall be responsible for the marketing
and sale of crops produced on the Premises. Crops will be sold at retail at the
retail stand located on the Premises and to commercial produce wholesalers and
distributors. LICENSEE shall provide a schedule to LICENSOR of proposed days
and hours of operation of the on-site retail location.
Importing Items from outside vendors. LICENSEE, in an effort to ensure
that business stays consistent, even in particularly bad years, shall have
the authority to purchase certain produce items from outside vendors to
sell at retail at the Premises.
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(d) Condition of Premises. LICENSEE accepts the Premises in its present condition
upon execution of this License. LICENSOR makes no warranty of the suitability of
the Premises for growing crops. LICENSEE agrees, at LICENSEE's expense, to
use reasonable care to control all weeds, noxious or otherwise, growing on the
Premises, including those growing in drainage ditches. LICENSEE shall furnish all
labor and materials required to eliminate and otherwise reasonably control all
rodents, insects and other pests on the Premises. LICENSEE agrees to farm the
Premises in a manner reasonably calculated to protect the soil and maintain the
fertility through the use of fertilizers and chemicals in accordance with good
farming practices as generally followed and recognized in Orange County,
California. LICENSEE agrees, at LICENSEE's expense, to keep fences, ditches
and borders of the Premises in good condition and in repair at all times,
reasonable wear and tear excepted. The duly authorized representative of
LICENSOR may enter upon the Premises and all structures and buildings thereon,
or any portion thereof, at a reasonable time for the purposes of inspection.
(e) Access Road. The access road as shown in Exhibit "A," shall be accessible for
use by representatives of the wireless phone company to gain access to the
antenna site located on the Sports Park field adjacent to the Premises. The
foundation of the road shall be comprised of gravel at no cost to LICENSEE. In
addition, a gate and corresponding locks shall be added and maintained at no cost
to LICENSEE.
(f) Fourth of July Celebration. LICENSOR shall have use and access to the
Premises in order to host the fireworks celebration for the community from the
Premises each July 4th on an annual basis throughout the term of this License.
This access shall include, but not be limited to, all set up, coordination, and take-
down activities necessary to fire the fireworks from the Premises.
Section 4. No Assignments.
LICENSEE shall not assign this License or any interest herein, or sublet the
Premises or any part thereof, or license the use of all or any portion of the
Premises or business conducted therein or thereon, or encumber or hypothecate
the Premises or this License, without first obtaining the written consent of
LICENSOR. Any assignment, subletting, licensing, encumbering, or
hypothecating of the Premises or this License without such prior written consent of
LICENSOR, shall be void and shall be cause for cancellation of this License by
LICENSOR at its option.
Section 5. Water.
An existing water well and backbone irrigation system is available to LICENSEE
for irrigation uses. LICENSEE is required to pay for water at the current
agricultural rate for water and any costs required in keeping the irrigation system
operational. LICENSOR is responsible for the maintenance of the well. In the
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event LICENSOR closes the well, LICENSOR will be required to provide another
source of water. In this event, LICENSOR will not be obligated to pay for
differences in water rate costs. LICENSEE agrees to work cooperatively with
LICENSOR to coordinate watering schedules between the Premises and the City
Sports Park. LICENSEE shall not be responsible for water costs for the City
Sports Park.
Section 6. Utilities.
Subject to Section 5 above, LICENSEE is fully and solely responsible for providing
any utility service required for the farm maintenance and operation.
Section 7. Time of the Essence.
Time is of the essence of each and every provision, covenant, and condition
herein contained and on the part of LICENSEE to be done and performed.
Section 8. Default.
(a) If LICENSEE defaults in the payment of the license fee, or any additional
applicable license payments, or defaults in the performance of any of the other
covenants or conditions hereof, LICENSOR may give LICENSEE notice of
such default and if LICENSEE does not cure any such default within three (3)
days, or such other time period as specified in the notice of default, after the
giving of such notice, then LICENSOR may terminate this license on not less
than ten (10) days' notice to LICENSEE. On the date specified in such notice
the term of this license shall terminate, and LICENSEE shall then quit and
surrender the Premises to LICENSOR, but LICENSEE shall remain liable as
hereinafter provided. If this license shall have been so terminated by
LICENSOR, LICENSOR may at any time thereafter resume possession of the
Premises by any lawful means and remove LICENSEE or other occupants and
their effects.
(b) If LICENSEE breaches any covenant or condition of this license, LICENSOR
may, on reasonable notice to LICENSEE (except that no notice need be given
in case of emergency), cure such breach at the expense of LICENSEE. The
reasonable amount of all expenses, including attorney's fees, incurred by
LICENSOR in so doing shall be deemed additional fees payable on demand.
Section 9. Termination Due to Bankruotcv or Insolvency.
In the event proceedings in bankruptcy are commenced by LICENSEE, or
LICENSEE is found to be in a state of insolvency, then in such event, LICENSOR
shall have the right to terminate this Agreement and all further rights and
obligations thereunder, by ten (10) days' notice in writing to LICENSEE, in which
event, on the expiration of the ten (10) days from mailing of the notice, this License
shall automatically terminate.
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Section 10. Notices.
Any notice required to be given under this Agreement shall be in writing and shall
be deemed to have been duly given and received if and when personally served,
or forty-eight (48) hours after being deposited in the United States mail, first class,
postage prepaid, addressed to the intended party at:
LICENSOR:
City of San Juan Capistrano/Redevelopment Agency
City Manager/Executive Director
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
LICENSEE:
George Kibby
South Coast Farms
2268 E. Sandalwood Place
Anaheim, CA 92806
Section 11. Attorneys' Fees.
If either party commences action against the other party arising out of or in
connection with this License, the prevailing party shall be entitled to have and
recover from the other party reasonable attorney's fees and costs of suit.
Section 12. Surrender of Premises.
LICENSEE shall, at the termination of this License, vacate the Premises in as
good condition as they are in at the time of entry thereon by LICENSEE. Upon
vacating, LICENSEE shall leave Premises free and clear of all rubbish and debris.
Section 13. Insurance.
LICENSEE shall pay for and maintain insurance throughout the life of this License
with general liability coverage of one million Dollars ($1,000,000) minimum
coverage per occurrence, and fire and all risk property damage insurance, insuring
all of LICENSEE's equipment and trade fixtures located on the Premises for full
replacement cost. Said policy shall name LICENSOR as additional insured by
endorsement to the policy and shall be in a form satisfactory to LICENSOR.
LICENSEE will furnish LICENSOR with proof of insurance issued by an insurer
approved by LICENSOR showing the coverage to be in force. LICENSEE's
insurance coverage shall be primary coverage. LICENSOR and LICENSEE each
waive the rights of subrogation that may arise against the other because of any act
covered by insurance. The policy shall provide that modification or cancellation of
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the policy shall not occur without thirty (30) days advance written notice provided
by the insurer to LICENSOR.
Section 14. Indemnity.
LICENSEE shall defend, indemnify, and hold harmless LICENSOR, and their
respective elected officials, officers, employees, and agents, from and against any
and all actions, claims, demands, losses, costs, expenses, including legal costs
and attorney's fees, for death or injury to persons or damage to property or the
Premises, or for the pollution thereof and cleanup costs, arising out of or related to
LICENSEE's use of the Premises, except to the extent of such loss as may be
caused by LICENSOR's own negligence, including that of their respective officials,
officers, employees and agents. LICENSOR shall not be held accountable for any
preexisting soil contamination, including those identified in the report dated
January 28, 1990, prepared by Chem Risk, and the report dated December 18,
1990, prepared by South Coast Geological Services, Inc.
Section 15. Taxes.
Pursuant to Revenue & Taxation Code §107.7, the property interest created herein
may be subject to property taxation and LICENSEE may be subject to property
taxes levied on such interest. In no event shall LICENSOR be liable for any taxes
owed as a result of this License or LICENSEE's use of the Premises.
Section 16. No Relocation Benefits.
This License is not intended to convey a property interest but to permit LICENSEE
to use the Premises as provided for herein. LICENSEE acknowledges the rights
granted by State and/or Federal Relocation Assistance Laws and regulations and,
notwithstanding any other provision of this License, expressly waives all such
present and future rights, if any, to which LICENSEE might otherwise be entitled
from LICENSOR or the City of San Juan Capistrano with regard to this License
and the business operated on the Premises. LICENSEE shall not be entitled to
relocation assistance, relocation benefits, or compensation for loss of goodwill
upon the termination of this License.
Section 17. Entire Agreement.
The terms in this License constitutes the entire understanding and agreement
between the Parties and supersedes all previous negotiations between them
pertaining to the subject matter thereof.
Section 18. Termination of Past Leases. Licenses and Agreements.
This License and the terms and conditions hereof supersede and shall terminate
the leases entered into by the parties dated June 15, 1999 and June 6, 2000, and
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any other leases, licenses, agreements or understandings pertaining to the subject
matter hereof.
IN WITNESS WHEREOF, LICENSOR and LICENSEE have caused this License
to be executed on the date and year first written above.
LICENSEE:
SOUTH CO ST FARMS
By:
orge Kibby
ATTEST:
Margaret R. Monahan, City Clerk
APPROVED AS TO FORM:
Omar Sandoval, City Attorne
552413,1
LICENSOR:
CITY OF SAN JUAN CAPISTRANO,
A California municipal corporation
M
Joe Soto, Mayor
[ADDITIONAL SIGNATURE PAGE FOLLOWS]
Page 8 of 9
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SAN JUAN CAPISTRANO COMMUNITY
REDEVELOPMENT AGENCY,
a public body corporate and politic
la
ATTEST:
Mark Nielsen, Chairman
Margaret R. Monahan, Agency Secretary
APPROVED AS TO FORM:
ME
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NOTIFICATION 0F7'M8ETTNGAbFPPbnNTIAL INTEREST
SAN JUAN CAPISTRANO REDEVELOPMENT AGENCY
The Board of Directors of San Juan Capistrano Community Redevelopment Agency will
meet at 6:30 p.m. on Tuesday, May 6, 2008, in the City Council Chamber in City Hall, to
consider: "Consideration of a License Agreement for the Kinoshita Farm (South
Coast Farms)" — Item No. 136.
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 Board of
Directors through correspondence addressed to the Board and/or by attending the
meeting and speaking to the Board 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, May 5, 2008 to allow time for the Board 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 Chairman
when the item is considered.
You have received this notice at the request of the City staff member Michelle Perea,
Management Analyst. You may contact that staff member at (949) 487-4315 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:
cityclerk(&sanivancapistrano.org.
Meg Monahan, MMC
City Clerk
cc: George Kibby, South Coast Farms; Michelle Perea, Management Analyst
Received staff report
32400 Paseo Adelanto • San Juan Capistrano • California 92675 (949) 493.1171
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SUPPLEMENTARY AGENDA REPORT
TO: Dave Adams, Executive Director 0
FROM: Cindy Russell, Interim Public works Director
• CRA 4/1/2008
SUBJECT: Consideration of a License Agreement for the Kinoshita Farm (South
Coast Farms)
SITUATION:
This Item has been withdrawn by staff from the Agenda. It will be placed on the April 15,
2008, Community Redevelopment Agency Meeting.
Respectfully submitted,
a
Cindy Ru�ell
Interim Public Works Director
Prepared by,
Michelle Perea
Management Analyst
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April 2, 2008
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NOTIFICATION OF ACTION BY THE
SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY
On April 1, 2008 the San Juan Capistrano Community Redevelopment Agency met
regarding: "Consideration of a License Agreement for the Kinoshita Farm (South
Coast Farms)" Item No. (132).
The following action was taken at the meeting: Item withdrawn from the agenda by
staff.
If you have any questions regarding this action, please contact Michelle Perea,
Management Analyst at 487-4315 for more detailed information.
Thank you,
,MMC
cy
Cc: George Kibby, South Coast Farms; Cindy Russell, Interim Public Works Director;
Michelle Perea, Management Analyst
32400 Paseo Adelanto • San Juan Capistrano • California 92675 (949) 493.1171
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AGENDA REPORT
TO: Dave Adams, Executive Director�l
FROM: Cindy Russell, Interim Public Works Director
• CRA 4/1/2008
SUBJECT: Consideration of a License Agreement for the Kinoshita Farm (South
Coast Farms)
RECOMMENDATION:
1. By motion, approve the license agreement with South Coast Farms for $25,000
annually; and,
2. Authorize the Chairman to execute the agreement on behalf of the Community
Redevelopment Agency.
SITUATION:
The City and the San Juan Capistrano Community Redevelopment Agency are owners
of a 28.225 acre farm on the corner of Alipaz and Del Avion, which was acquired to be
maintained as open space within the City (Exhibit A, Attachment 1). South Coast
Farms, the current operator of the farm, has renegotiated with the City to continue to
farm 27.725 acres, with the remaining acreage set aside for future City use. Please
note that the City entered into a separate license agreement on August 8, 2006, with the
San Juan Family Farm Museum (an affiliate of South Coast Farms), for the
maintenance and use of the Joel Congdon House also at this location.
As part of the proposed license agreement (Attachment 1) for farm operations, South
Coast Farms shall continue to maintain a fully functioning farm, as well as a fruit and
vegetable stand over the 10 -year term of the license agreement. At the end of the fifth
year, the annual license rate of $25,000 may be renegotiated. In addition to the annual
license fee, the agreement provides for South Coast Farms to pay the current
agricultural rate for water. South Coast Farms shall own all crops produced at the
property, and shall continue to provide the supervision and management over the farm
operations.
There is an antenna site located at the Sports Park field, which is adjacent to the farm.
The license agreement specifies that South Coast Farms will allow for use of the access
road (Exhibit A, Attachment 1), with the City maintaining the road and gate. In addition,
the City will continue to access the property to host the annual Fourth of July
Celebration throughout the term of the agreement.
AGENDA REPORT • • April 1, 2008
Page 2
Since beginning operations on this property in 1999, South Coast Farms has proven to
be a successful farm operator with 100% of its operations being organic. This type of
organic farm means that the residents of San Juan Capistrano are not exposed to any
of the herbicides and pesticides that normal farm operations utilize, while being offered
healthier foods to enjoy. South Coast Farms is well-known for such produce as
strawberries, tomatoes, leafy greens, pumpkins, etc. Additionally, South Coast Farms
has become a part of the community providing educational opportunities for our schools
and residents as well.
Staff recommends that the Community Redevelopment Agency approve the proposed
license agreement with South Coast Farms for continued operation of the farm property.
NOTIFICATION:
George Kibby, South Coast Farms
COMMISSION/BOARD REVIEW, RECOMMENDATIONS:
Not Applicable.
FINANCIAL CONSIDERATIONS:
The proposed license agreement with South Coast Farm provides for a $25,000 per
annum payment. The proposed license agreement requires South Coast Farms to pay
the current agricultural rate for water.
RECOMMENDATION:
1. By motion, approve the license agreement with South Coast Farms for $25,000
annually; and,
2. Authorize the Chairman to execute the agreement on behalf of the Community
Redevelopment Agency.
Respectfully submitted,
Cindy Russ�ll
Interim Public Works Director
Attachments: 1. License Agreement
Prepared by,
Mic elle Perea
Management Analyst
LICENSE AGREEMENT
This License Agreement ("Agreement') is made this day of , 2008, by and
between the City of San Juan Capistrano, a municipal corporation, and the San Juan
Capistrano Community Redevelopment Agency, a public body, corporate and politic (known
jointly hereinafter as the "LICENSOR"), and South Coast Farms ("LICENSEE").
RECITALS
WHEREAS, LICENSOR is the owner of the 28.225 acre farm in the City of San Juan
Capistrano, California, generally located at the northwest corner of Alipaz Street and Camino
Del Avion, which property was acquired to be maintained as open -space within the City; and
WHEREAS, LICENSEE desires to conduct farming operations on 27.725 acres of the
property, with 0.50 acres set aside for City use; and
WHEREAS, LICENSEE has farming expertise and experience and desires to manage
the maintenance and operations of all agricultural activities on the property; and
WHEREAS, LICENSEE and LICENSOR had entered into a Lease Agreement dated
June 15, 1999 for a term of 10 years, which was subsequently revised by a Lease Agreement
dated June 6, 2000, which the parties wish to terminate in return for the grant of license and
the terms and conditions herein.
LICENSE
NOW, THEREFORE, LICENSOR and LICENSEE do hereby mutually agree as
follows:
Section 1. Grant of License/Term.
(a) Grant of License. LICENSOR hereby grants to LICENSEE a License to manage,
maintain, and operate a fruit and vegetable farm on the property, as depicted on the
site plan attached hereto as Exhibit "A" and incorporated herein by reference
(hereinafter referred to as the "Premises"). Provided, however, that this License does
not include the Joel Congdon Residence area as depicted in Exhibit "A," which is
subject to a separate license. LICENSEE shall provide the expertise, supervision and
management over the farm operations, and LICENSEE shall own all crops produced
on the Premises.
(b). Term. The term of this Agreement with regard to the Premises, shall be for a period of
ten (10) years, commencing upon the date first above written unless sooner
terminated by mutual consent of LICENSOR and LICENSEE.
552413 1 Page 1 of 9 ATTACHMENT 1
.
9 0
Section 2. License Fee.
(a) LICENSOR shall receive from LICENSEE a license fee of twenty-five thousand dollars
($25,000) annually, to be paid on a quarterly basis, based on calendar year quarters
and prorated accordingly, for the first full five (5) years of the license term.
(b) Ninety days prior to the end of the fifth year of the license term, the license fee shall be
renegotiated between LICENSOR and LICENSEE with the intent being that the agreed
upon license fee for the subsequent five-year term of the license shall match the
market rate for similarly situated properties, provided that in no case shall the license
fee be reduced as a result of the negotiations.
(c) In the event that the parties cannot come to agreement within forty-five (45) days of
commencement of license fee negotiations, either party may call for a binding
arbitration process wherein each side selects an arbitrator and a third arbitration panel
member is then chosen by the two selected arbitrators. The three-person panel shall
then conduct an informal hearing to receive evidence and argument regarding the
appropriate license fee. The panel shall render a final and binding decision within
thirty (30) days of convening the panel. LICENSEE shall continue to pay the license
fee in subsection (a) during the pendency of the proceedings subject to retroactive
adjustment upon the establishment of the new fee pursuant to this subsection.
Section 3. Nature of Uses Permitted Under the License and Maintenance of Premises.
(a) Operation of Farm. LICENSEE shall be responsible for the supervision and
management of every aspect of running a produce farming operation for human
consumption on the Premises in a business like manner.
The existing retail stand may be utilized by LICENSEE for produce retail sales only.
Any expansion, regardless of size or scope, is not permitted under this Agreement
unless LICENSOR's written approval is first obtained.
LICENSEE's supervision and maintenance shall include, but not be limited to:
the employment, supervision and direction of all employees engaged in the
farming operation;
ii. providing for the maintenance of all equipment and supervising its use in a
safe and prudent manner;
iii. soil preparation, planting, fertilizing, irrigating, pesticide and herbicide
applications, and the harvesting of all crops;
iv. the marketing and sale of crops;
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v. maintenance of records and accounting for all revenues and expenditures,
including employee payroll and related records;
vi. 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;
vii. management and maintenance of all on-site improvements, provided that any
temporary housing is subject to City's approval based on all applicable
provisions of the City's Land Use Code.
LICENSEE shall perform all operations 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.
(b) Maintenance of Premises. LICENSEE agrees to accept the Premises in its present
condition as of the date of execution of this Agreement. Except for the Congdon
Residence, LICENSEE may use the buildings and existing structures on the Premises
for LICENSEE's use in farming operations. LICENSEE shall maintain, at LICENSEE's
expense, the Premises, including all existing structures and all equipment owned and
furnished by LICENSEE, in a reasonable state of repair and working order.
LICENSEE's maintenance requirements shall include, but shall not be limited to the
following:
Fruit Trees. LICENSEE shall plant fruit trees on the Premises and shall be
responsible for properly maintaining them. There is not a restriction regarding
the height of the fruit trees; however, LICENSEE shall be consistent and make
efforts to keep the trees at a height that will not hinder or disrupt views into the
farm or surrounding areas.
ii. Shrubs. The shrubs on the Premises block the wind, limit road dust, and
reduce the amount of debris entering the Premises. LICENSEE is responsible
for sufficiently maintaining the shrubs in.order to keep harmful elements away
from the crops.
(c) Marketing and Sale of Crops. LICENSEE shall be responsible for the marketing and
sale of crops produced on the Premises. Crops will be sold at retail at the retail stand
located on the Premises and to commercial produce wholesalers and distributors.
LICENSEE shall provide a schedule to LICENSOR of proposed days and hours of
operation of the on-site retail location.
Importing Items from outside vendors. LICENSEE, in an effort to ensure that
business stays consistent, even in particularly bad years, shall have the
authority to purchase certain produce items from outside vendors to sell at
retail at the Premises.
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(d) Condition of Premises. LICENSEE accepts the Premises in its present condition upon
execution of this License. LICENSOR makes no warranty of the suitability of the
Premises for growing crops. LICENSEE agrees, at LICENSEE's expense, to use
reasonable care to control all weeds, noxious or otherwise, growing on the Premises,
including those growing in drainage ditches. LICENSEE shall furnish all labor and
materials required to eliminate and otherwise reasonably control all rodents, insects
and other pests on the Premises. LICENSEE agrees to farm the Premises in a
manner reasonably calculated to protect the soil and maintain the fertility through the
use of fertilizers and chemicals in accordance with good farming practices as generally
followed and recognized in Orange County, California. LICENSEE agrees, at
LICENSEE's expense, to keep fences, ditches and borders of the Premises in good
condition and in repair at all times, reasonable wear and tear excepted. The duly
authorized representative of LICENSOR may enter upon the Premises and all
structures and buildings thereon, or any portion thereof, at a reasonable time for the
purposes of inspection.
(e) Access Road. The access road as shown in Exhibit "A," shall be accessible for use by
representatives of the wireless phone company to gain access to the antenna site
located on the Sports Park field adjacent to the Premises. The foundation of the road
shall be comprised of gravel at no cost to LICENSEE. In addition, a gate and
corresponding locks shall be added and maintained at no cost to LICENSEE.
(f) Fourth of July Celebration. LICENSOR shall have use and access to the Premises in
order to host the fireworks celebration for the community from the Premises each July
4th on an annual basis throughout the term of this License. This access shall include,
but not be limited to, all set up, coordination, and take-down activities necessary to fire
the fireworks from the Premises.
Section 4. No Assignments.
LICENSEE shall not assign this License or any interest herein, or sublet the Premises
or any part thereof, or license the use of all or any portion of the Premises or business
conducted therein or thereon, or encumber or hypothecate the Premises or this
License, without first obtaining the written consent of LICENSOR. Any assignment,
subletting, licensing, encumbering, or hypothecating of the Premises or this License
without such prior written consent of LICENSOR, shall be void and shall be cause for
cancellation of this License by LICENSOR at its option.
Section 5. Water.
An existing water well and backbone irrigation system may be available to LICENSEE
for irrigation uses, with LICENSOR being responsible for the maintenance of the well.
The LICENSOR is responsible for providing a source of supply to LICENSSEE, which
may include well water, recycled water, or domestic water. LICENSEE is required to
pay for water at no more then the current agricultural rate, and any costs required in
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552413.1
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keeping the irrigation system operational, regardless of the source of supply.
LICENSEE will not be obligated to pay for differences in water rate costs. LICENSEE
agrees to work cooperatively with LICENSOR to coordinate watering schedules
between the Premises and the City Sports Park. LICENSEE shall not be responsible
for water costs for the City Sports Park.
Section 6. Utilities.
Subject to Section 5 above, LICENSEE is fully and solely responsible for providing any
utility service required for the farm maintenance and operation.
Section 7. Time of the Essence.
Time is of the essence of each and every provision, covenant, and condition herein
contained and on the part of LICENSEE to be done and performed.
Section 8, Default.
(a) If LICENSEE defaults in the payment of the license fee, or any additional
applicable license payments, or defaults in the performance of any of the other
covenants or conditions hereof, LICENSOR may give LICENSEE notice of such
default and if LICENSEE does not cure any such default within three (3) days, or
such other time period as specified in the notice of default, after the giving of such
notice, then LICENSOR may terminate this license on not less than ten (10) days'
notice to LICENSEE. On the date specified in such notice the term of this license
shall terminate, and LICENSEE shall then quit and surrender the Premises to
LICENSOR, but LICENSEE shall remain liable as hereinafter provided. If this
license shall have been so terminated by LICENSOR, LICENSOR may at any time
thereafter resume possession of the Premises by any lawful means and remove
LICENSEE or other occupants and their effects.
(b) If LICENSEE breaches any covenant or condition of this license, LICENSOR may,
on reasonable notice to LICENSEE (except that no notice need be given in case
of emergency), cure such breach at the expense of LICENSEE. The reasonable
amount of all expenses, including attorney's fees, incurred by LICENSOR in so
doing shall be deemed additional fees payable on demand.
Section 9. Termination Due to Bankruptcy or Insolvency.
In the event proceedings in bankruptcy are commenced by LICENSEE, or LICENSEE
is found to be in a state of insolvency, then in such event, LICENSOR shall have the
right to terminate this Agreement and all further rights and obligations thereunder, by
ten (10) days' notice in writing to LICENSEE, in which event, on the expiration of the
ten (10) days from mailing of the notice, this License shall automatically terminate.
Section 10. Notices.
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Any notice required to be given under this Agreement shall be in writing and shall be
deemed to have been duly given and received if and when personally served, or forty-
eight (48) hours after being deposited in the United States mail, first class, postage
prepaid, addressed to the intended party at:
LICENSOR:
City of San Juan Capistrano/Redevelopment Agency
City Manager/Executive Director
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
LICENSEE:
George Kibby
South Coast Farms
2268 E. Sandalwood Place,
Anaheim, CA 92806
Section 11. Attorneys' Fees.
If either party commences action against the other party arising out of or in connection
with this License, the prevailing party shall be entitled to have and recover from the
other party reasonable attorney's fees and costs of suit.
Section 12. Surrender of Premises.
LICENSEE shall, at the termination of this License, vacate the Premises in as good
condition as they are in at the time of entry thereon by LICENSEE. Upon vacating,
LICENSEE shall leave Premises free and clear of all rubbish and debris.
Section 13. Insurance.
LICENSEE shall pay for and maintain insurance throughout the life of this License with
general liability coverage of one million Dollars ($1,000,000) minimum coverage per
occurrence, and fire and all risk property damage insurance, insuring all of
LICENSEE's equipment and trade fixtures located on the Premises for full
replacement cost. Said policy shall name LICENSOR as additional insured by
endorsement to the policy and shall be in a form satisfactory to LICENSOR.
LICENSEE will furnish LICENSOR with proof of insurance issued by an insurer
approved by LICENSOR showing the coverage to be in force. LICENSEE's insurance
coverage shall be primary coverage. LICENSOR and LICENSEE each waive the
rights of subrogation that may arise against the other because of any act covered by
insurance. The policy shall provide that modification or cancellation of the policy shall
Page 6 of 9
552413.1
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not occur without thirty (30) days advance written notice provided by the insurer to
LICENSOR.
Section 14. Indemnity.
LICENSEE shall defend, indemnify, and hold harmless LICENSOR, and their
respective elected officials, officers, employees, and agents, from and against any and
all actions, claims, demands, losses, costs, expenses, including legal costs and
attorney's fees, for death or injury to persons or damage to property or the Premises,
or for the pollution thereof and cleanup costs, arising out of or related to LICENSEE's
use of the Premises, except to the extent of such loss as may be caused by
LICENSOR's own negligence, including that of their respective officials, officers,
employees and agents. LICENSOR shall not be held accountable for any preexisting
soil contamination, including those identified in the report dated January 28, 1990,
prepared by Chem Risk, and the report dated December 18, 1990, prepared by South
Coast Geological Services, Inc.
Section 15. Taxes.
Pursuant to Revenue & Taxation Code §107.7, the property interest created herein
may be subject to property taxation and LICENSEE may be subject to property taxes
levied on such interest. In no event shall LICENSOR be liable for any taxes owed as a
result of this License or LICENSEE's use of the Premises.
Section 16. No Relocation Benefits.
This License is not intended to convey a property interest but to permit LICENSEE to
use the Premises as provided for herein. LICENSEE acknowledges the rights granted
by State and/or Federal Relocation Assistance Laws and regulations and,
notwithstanding any other provision of this License, expressly waives all such present
and future rights, if any, to which LICENSEE might otherwise be entitled from
LICENSOR or the City of San Juan Capistrano with regard to this License and the
business operated on the Premises. LICENSEE shall not be entitled to relocation
assistance, relocation benefits, or compensation for loss of goodwill upon the
termination of this License.
Section 17. Entire Agreement.
The terms in this License constitutes the entire understanding and agreement between
the Parties and supersedes all previous negotiations between them pertaining to the
subject matter thereof.
Section 18. Termination of Past Leases, Licenses and Agreements.
This License and the terms and conditions hereof supersede and shall terminate the
leases entered into by the parties dated June 15, 1999 and June 6, 2000, and
Page 7 of 9
552413.1
0 0
any other leases, licenses, agreements or understandings pertaining to the subject
matter hereof.
IN WITNESS WHEREOF, LICENSOR and LICENSEE have caused this License
to be executed on the date and year first written above.
LICENSEE:
SOUTH COAST FARMS
By:
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eorge I ibb
LICENSOR:
CITY OF SAN JUAN CAPISTRANO,
A California municipal corporation
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ATTEST:
Margaret R. Monahan, City
APPROVED AS TO FORM:
batal OW661
Omar Sandoval, City Attorney
Joe Soto, Mayor
[ADDITIONAL SIGNATURE PAGE FOLLOWS]
Page 8 of 9
552413 1
0 0
SAN JUAN CAPISTRANO COMMUNITY
REDEVELOPMENT AGENCY,
a public body corporate and politic
Mark Nielsen, Chairman
ATTEST:
Margaret R. Monahan, Agency Secretary
APPROVED AS TO FORM:
AAA /I
Omar Snlbval, Agency Co nsel
Page 9 of 9
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x KINOSHITA FARM 300ft
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NOTIFICATION OF MEETING OF POTENTIAL INTEREST
SAN JUAN CAPISTRANO REDEVELOPMENT AGENCY
The Board of Directors of San Juan Capistrano Community Redevelopment Agency will
meet at 6:30 p.m. on Tuesday, April 1, 2008 in the City Council Chamber in City Hall, to
consider: "Consideration of a License Agreement for the Kinoshita Farm (South
Coast Farms)" — Item No. B2.
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 Board of
Directors through correspondence addressed to the Board and/or by attending the
meeting and speaking to the Board 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, March 31, 2008 to allow time for the Board 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 Chairman
when the item is considered.
You have received this notice at the request of the City staff member Michelle Perea,
Management Analyst. You may contact that staff member at (949) 487-4315 with any
questions.
The agenda, including agenda reports, is available to you on our web site:
www.sanivancapistrano.orq. 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:
cityclerkasan'uancapistrano.org.
Meg Monahan, MMC
City Clerk
cc: George Kibby, South Coast Farms; Cindy Russell, Interim Public Works Director;
Michelle Perea, Management Analyst
* Received staff report
32400 Paseo Adelanto • San Juan Capistrano a California 92675 (949) 493.1171
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NOTIFICATION OF ACTION BY THE
SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY
On May 6, 2008 the San Juan Capistrano Community Redevelopment Agency met
regarding: "Consideration of a License Agreement for the Kinoshita Farm (South
Coast Farms)" Item No. (136).
The following action was taken at the meeting: License agreement with South Coast
Farms, in the amount of $25,000 annually for a period of 10 years with South
Coast Farms, approved; and the Chairman authorized to execute the agreement
on behalf of the Community Redevelopment Agency
If you have any questions regarding this action, please contact Michelle Perea,
Management Analyst at 487-4315 for more detailed information.
Thank you,
Meg Vonah4, MMC
Cc: George Kibby, South Coast Farms; Michelle Perea, Management Analyst
32400 Paseo Adelanto • San Juan Capistrano • California 92675 (949) 493.1171
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