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05-1018_PELTZER FARMS_License Agreement0 0 LICENSE AGREEMENT This License Agreement is entered into thisa(.e! y of October, 2005, by and between the City of San Juan Capistrano (hereinafter "City"), and Peltzer Farms (hereinafter "Licensee' RECITALS WHEREAS, City is the owner of approximately 31.28 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, Licensee desires to use a portion of the property to establish and maintain 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 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. SD Section 4. Term. The term of this Agreement shall be effective for two (2) years from the date of execution of the Agreement. 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 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. Licensor: Dave Adams, City Manager City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Section 13. Attorney's Fees. Licensee: Charles Peltzer Peltzer Farms 40275 Calle Contento Temecula, CA 92591 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: eg Ponahan, City Clerk AS TO FORM: By: _ a 5�� John R. Shaw, City Attorney EI CITY OF SAN JUAN CAPISTRANO 0 32400 PASEO ADELANTO SAN JUAN CAPISTRANO, OA 92675 (949) 493-1171 (949) 493-1053 FAx www.sanjuancapistrano.org October 21, 2005 Charles Peltzer Peltzer Farms 40275 Calle Contento Temecula, CA 92591 Dear Mr. Peltzer: MEMBERS OF THE CITY COUNCIL SAM ALLEVATO DIANE BATHGATE WYATT HART JOE SOTO DAVID M. SWERDLIN The City Council approved a license agreement related to establishment and maintenance of a Christmas tree farm on October 18, 2005. A fully executed, original agreement is enclosed for your records. Thank you for maintaining documentation confirming current compliance with the terms of insurance under your agreement with the city. Please keep in mind that should this documentation lapse, all work under this agreement must stop and all payments will be withheld until we receive proper evidence of insurance. You may proceed with work under this agreement in coordination with the project manager, Cynthia L. Russell, Administrative Services Director (949) 443-6301. Thank you, L. Russell, Administrative Services Director San Juan Capistrano: Preserving the Past to Enhance the Future I Pnnt.d nn rewdetl nano, 10/18/2005 AGENDA REPORT D11 TO: Dave Adams, City Manager FROM: Cindy Russell, Administrative Services Director Y'6 SUBJECT: Consideration of Renewal of the License Agreement for the Christmas Tree Farm on the Northwest Open Space (Peltzer Farms) RECOMMENDATION: By motion, approve the renewal of the license agreement with Peltzer Farms for the Christmas Tree Farm on the Northwest Open Space, and authorize the Mayor to execute the agreement on behalf of the City. SITUATION: The City has had a license agreement with Charles Peltzer to operate a Christmas tree farm and pumpkin patch on property adjacent to Camino Capistrano in the northwest open space for a number of years. Under the terms of the agreement, Mr. Peltzer is required to 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. Additionally, Mr. Peltzer is permitted to grow strawberries and other vegetables during the year, and, subject to written approval by the City, may erect a fruit stand on the property. The tree farm is well established and Mr. Peltzer has maintained the property in good condition. Staff recommends renewal of the license agreement with Peltzer Farms for a two year period COMMISSION/BOARD REVIEW AND RECOMMENDATIONS: Not Applicable. FINANCIAL CONSIDERATIONS: Peltzer Farms will pay the City six percent (6%) of two-thirds (2/3) of the total annual gross sales derived from the Christmas tree farm. Payment is due in January of each year. Agenda Report • Page 2 NOTIFICATION: Charles Peltzer RECOMMENDATION: E October 18, 2005 By motion, approve the renewal of the license agreement with Peltzer Farms for the Christmas Tree Farrm on the Northwest Open Space, and authorize the Mayor to execute the agreement on behalf of the City. Respectfully submitted, Cindyell Administrative Services Director Attachment(s): 1. License Agreement 2. Location Map Prepared by: iane Regier Management nalyst I 0 0 LICENSE AGREEMENT This License Agreement is entered into this day of October, 2005, by and between the City of San Juan Capistrano (hereinafter "City"), and Peltzer Farms (hereinafter "Licensee"). RECITALS WHEREAS, City is the owner of approximately 31.28 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, Licensee desires to use a portion of the property to establish and maintain 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 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. ATTACHMENT Section 4. Term. The term of this Agreement shall be effective for two (2) years from the date of execution of the Agreement. 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 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 0 0 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: Charles Peltzer Peltzer Farms 10189 Overhill Drive Santa Ana, CA. 92706 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 forthe 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. 9 0 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written. CITY OF SAN JUAN CAPISTRANO By: Wyatt Hart, Mayor ATTEST: By: Meg Monahan, City Clerk APPROVED AS TO FORM: By: John R. Shaw, City Attorney By: Peltzer Farms 4 'i THE CITY OF SAN JUAN CAPISTRANO 14 A Peltzer Farms s O �, Visas f. c 0 3000 6000 9000 Feet ATTACHMENT 2 32400 PASEO ADEI-ANTO SAN JUAN CAPISTRANO, CA 92675 (949) 493-1171 (949) 493-1053 FAX www"sonquancaprstrano. org 11 LJ ff- Inil AP KlliFO 15H0 1961 1776 MEMBERS OF THE CITY COUNCIL NOTIFICATION OF MEETING OF POTENTIAL INTEREST OF THE SAN JUAN CAPISTRANO CITY COUNCIL SAM ALLEVATO DIANE BATHGATE MATT HART JOE SOTO DAVID M. SWERDLIN The City Council of San Juan Capistrano will meet at 7:00 p.m. on October 18, 2005 in the City Council Chamber in City Hall, to consider: "Consideration of Renewal of the License Agreement for the Christmas Tree Farm on the Northwest Open Space (Peltzer Farms)" — Item No. D11. 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 17, 2005 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 Diane Regier, Management Analyst. You may contact that staff member at (949) 443-6304 with any questions. The agenda, including agenda reports, is available to you on our web site: www.sanivancapistrano.ong. 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-aoendasesanivancapistrano.org. Meg Monahan, CMC City Clerk cc: Charles Peltier; Cindy Russell, Administrative Services Director; Diane Regier, Management Analyst Received staff report San Juan Capistrano: Preserving the Past to Enhance the Future 0 Printed on recycled paper 40 32400 PASEO ADELANTO SAN JUAN CAPISTRANO, CA 92675 (949) 493-1171 (949) 493-1053 FAX www.sanjuancapistrano.org September 19, 2006 Charlie Peltzer Peltzer Farms 10189 Overhill Drive Santa Ana, CA 92705 L��(���"!, IA(IIIOIIIEI r WISH t961 In6 MEMBERS OF THE CITY COUNCIL RE: Compliance with Insurance Requirements — Christmas Tree Farm License Agreement The following insurance documents are due to expire: ✓ General Liability Certificate 10/1/2006 SAM ALLEVATO DIANE BATHGATE WYATT HART JOE SOTO DAVID M. SWERDLIN ✓ General Liability Endorsement Form naming the City of San Juan Capistrano as additional insured. Please submit updated documentation by the above expiration dates to the City of San Juan Capistrano, attention City Clerk's office, 32400 Paseo Adelanto, San Juan Capyy'��,trano, CA W675 or fax to (949) 493-1053. If you have any questions, please coy(tabt mo at () 443-6309. cc: 0 printed .0100% ReeycleJ Paper Regier, Management Analyst I 301 ?V1 XWelpe San Juan Capistrano: Preserving the Past to nhance the Future