08-0520_TOLMASOFF, JOHN & ERIN_License Agreement Amd AMENDED LICENSE AGREEMENT
This Amended License Agreement is entered into this /0 day of May 2008, 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(ExhibitA—"Area B—Special Event Parking Only")(hereinafter
"Area Be)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(114)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.
1
$76]94.1
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 all sales of Christmas trees and other produce
grown and/or sold 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
all sales on the property. 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 all
operations to the City if requested for purposes of conducting an audltto 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, 2013.
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.
fr Section 6. City's Camino Capistrano Road Widenina Proiect.
City has plans to widen Camino Capistrano as it abuts the Property. This road
widening project may necessitate the City utilizing a portion of the Property (more
particularly, approximately thirty feet (30') in width running the full length of the Property
along Camino Capistrano)during the term of this Agreement. Accordingly,City reserves the
right to take possession of any of the Property deemed necessary to accomplish the road
widening during the term of this agreement. City will provide a minimum of sixty (60)
calendar days advance notice of City's intent to utilize the needed property.
2
576374.1
Section 7. Condition of Prooertv.
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 bonders 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 perforin 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 underthis Agreement to any third partywithoutthe
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: Licensee:
Dave Adams, City Manager Joseph and Kendra Philip
City of San Juan Capistrano Husband and wife
32400 Paseo Adelanto 28241 Crown Valley Pkwy, #F-174
San Juan Capistrano, CA 92675 Laguna Niguel,.CA 92677
3
576374.1
John and Erin Tolmasoff
Husband and wife
#31 Rosings
Mission Viejo, CA 92692
Section 13. Attorney's Fees.
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.
Section 15. Taxes.
Pursuant to Revenue&Taxation Code§107.7,the property interest created herein,if
any, may be subject to property taxation and LICENSEE may be subject to property taxes
levied on such interest, if any. 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.
[SIGNATURE PAGE FOLLOWS]
4
576374 I
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
CITYOF S U PISTRANO
1 By.
Joe oto, Mayor
ATTEST: I
By;
MegM60ap4n, City qle
APPROVED AS TAlli�IAO
OFORM: `
By: /C1 f
Omar Sandoval, City Attorney
By:
Jo Philip
By.
By:
ohn Tolmasoff
By: —
Erin Tolmasoff
5
596374.1
AMENDED LICENSE AGREEMENT
This Amended License Agreement is entered into this qday 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 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.
1
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.
2
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.
3
Licensor: Licensee:
Dave Adams, City Manager Joseph and Kendra Philip
City of San Juan Capistrano Husband and wife
32400 Paseo Adelanto 28241 Crown Valley Pkwy, #F-174
San Juan Capistrano, CA 92675 Laguna Niguel, CA 92677
John and Erin Tomalsoff
Husband and wife
#31 Rosings
Mission Viejo, CA 92692
Section 13. Attorney's Fees.
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.
CITY OF SAN AN CAPISTRANO
By:
am Allevato, Mayor
ATTEST:
By: l
Me n han, Cit erk
APPROVED T FORM:
By:
John R. S , City Attorney
By:
Jo Phili
4
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Erin Tolmasoff
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29801 26252
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Area B-Special Ev
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APN: 650-023-08
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Copyright 2006.FARES.Customer Data,Digital Map Products. E:Igacobs\MXD\Cindy_Russell\Exhibit0l.pdf
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 Tolmasoft, 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
1
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.
2
9 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: Licensee:
Dave Adams, City Manager Joseph and Kendra Philip
City of San Juan Capistrano Husband and wife
32400 Paseo Adelanto 28241 Crown Valley Pkwy, #F-174
San Juan Capistrano, CA 92675 Laguna Niguel, CA 92677
John and Erin Tomalsoff
Husband and wife
#31 Rosings
Mission Viejo, CA 92692
Section 13. Attorney's Fees.
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.
3
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: `
David M. Sw rdlin, Mayor
ATTEST:
By: AD d)l
g on n, Ciy lerk
APPROVED AS F M:
By:
John R. a , City Attorney
By: Af
p ii
By.
Kendra Phil'
By.
hn Tolmasoff
By: �if�»
Erin Tolmasoff iKI
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EXHIBIT A
' RESOLUTION NO. 06-08-01-0 Z
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 APPRG'VING 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 s` day of August 2006.
c
/ DAVID M. S ER LIN, MAYOR
ATTEST'
MARGA . MO AHA , CITY CLERK
Page 1 of 1 8/1/2006
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.06-06-01-02 was duly adopted bythe 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: COUN IL MEMBER: None
7'R. MONAHAN, City Clerk
Jin
32400 PASEO ADELANTO / MEMBERS OF THE CRV COUNCIL
SAN JUAN CAPIST ANO,CA 92675 SAMALLEVATO
(949)493.1171 IOunllRn THOMAS W.HRIBAR
(949)493-1053 FAX a III I 1961 MARK NIELSEN
wwwsanjuancapistrano.org 1776 JOE SOTO
• • DR.LONDRES USO
TRANSMITTAL
TO:
Joseph & Kendra Philip
28241 Crown Valley Pkwy., F-174
Laguna Niguel, CA 92677
John and Erin Tolmasoff
31 Rosings
Mission Viejo, CA 92692
DATE: September 18, 2008
FROM: Maria Morris, Deputy City Clerk (949)443-6309
RE: Amendment to License Agreement— City Tree Farm
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 call me at
(949) 443-6309.
If you have questions concerning the agreement, please contact Cindy Russell, Assistant City
Manager at (949) 443-6301.
An original amendment is enclosed for your records.
Cc: Cindy Russell, Assistant City Manager
San Juan Capistrano: Preserving the Past to Enhance the Future
�.� Pnmea m 100x,ewaee aece.
32400 PASEO ADELANTO MEMBERS OF THE CITY COUNCIL
SAN JUAN CAPISTRANO,CA 92675 /
TO
(949)4931171 ,�,(� SAM
(949)4931053 FAX • t� IIIIIII THOMAASSWW..HRIBAR
O1Ru51U I 1961 MARK NIELSEN
www.sanjuancapistrano.org 1776 JOESOTO
�'� • DR LONDRES USO
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
RE: Amended License Agreement— City Tree Farm
An original amended license agreement is enclosed for your records.
Cc: Cindy Russell, Assistant City Manager
San Juan Capistrano: Preserving the Past to Enhance the Future
�� Printed on 100%recycled paper
32400 PASEO ADELANTO v �� � MEMBERS OF THE CITY COUNCIL
SAN JUAN CAPISTRANO,CA 92675 ,
(949)493.1171 SAM ALLEVATO
(949)493.1053 FAXIA[11v°HIO DIANE BATHGATE
TT
www.sanjuancapistrat7o.org 11177610 I 1961 JOE SOTART
JOE 5070
• • DAVID M.SWERDLIN
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:
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
*tity
ssell, Administrative Services Director (949) 443-6301.
cc: Cindy Russell, Administrative Services Director; John and Erin Tomalsoff;
Charles Petzler
San Juan Capistrano: Preserving the Past to Enhance the Future
�Privded on'109°A Rerycletl Paper
5/20/2008
AGENDA REPORT DS
TO: Dave Adams, City Manager'
FROM: Cindy Russell, Assistant City Manager
SUBJECT: Consideration of an Amended License Agreement for the City Tree Farm
(Mountain Pines Christmas Tree Farm)
RECOMMENDATION:
By motion, approve the Amended License Agreement with Mountain Pines Christmas
Tree Farm to amend the term of the license agreement through January 31, 2013
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.
Mountain Pines has been operating the Christmas Tree Farm and replanted all the dead
trees and has replanted annually as required under the license agreement. The most
recent planting occurred in early 2008. These trees would be ready to sell during the
2012 Christmas season. Mountain Pines has requested an amended license
agreement to allow them to harvest these trees.
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.
Agenda Report
Page 2 May 20, 2008
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, approve the Amended License Agreement with Mountain Pines Christmas
Tree Farm to amend the term of the license agreement through January 31, 2013
Respectfully bmitt
Cindy Russell
Assistant City Manager
Attachments:
1. Amended License Agreement
2. Location Map
AMENDED LICENSE AGREEMENT
This Amended License Agreement is entered into this day of May 2008, 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 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.
576174.1 ATTACHMENT 1
•
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, 2013.
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.
2
5101)4 1
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 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.
Licensor: Licensee:
Dave Adams, City Manager Joseph and Kendra Philip
City of San Juan Capistrano Husband and wife
32400 Paseo Adelanto 28241 Crown Valley Pkwy, #F-174
San Juan Capistrano, CA 92675 Laguna Niguel, CA 92677
3
576374 1
John and Erin Tomalsoff
Husband and wife
#31 Rosings
Mission Viejo, CA 92692
Section 13. Attorney's Fees.
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.
Section 15. Taxes.
Pursuant to Revenue&Taxation Code§107.7, the property interest created herein, if
any, may be subject to property taxation and LICENSEE may be subject to property taxes
levied on such interest, if any. 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.
[SIGNATURE PAGE FOLLOWS]
4
576174 1
10 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:
Joe Soto, Mayor
ATTEST:
By:
Meg Monahan, City Clerk
APPROVED AS TO FORM:
By:
Omar Sandoval, City Attorney
By:
Joseph Philip
By:
Kendra Philip
By:
John Tolmasoff
By.
Erin Tolmasoff
5
till THE CITY OF
SAN JUAN CAPISTRANO
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CaPpi0M 2009.FARES.Cusft w ORB.019M Map Pm900b. E:1 R
Jac*
32400 PASEO ADELANTO � � E� A MEMBERS OF THE CITY COUNCIL
SAN JUAN CAPISTRANO.CA 92675 /,l� GL1 SAMALLEVATO
(949)493-1171yi II1U1IOIITR THOMAS W.HRIBAR
(949)493.1053 FAx uunnlle 1961 MARK NIELSEN
,,wSanjuancapisfrana.otg 1776 JOE SOTO
0'� • DR.LONDRES USO
NOTIFICATION OF MEETING OF POTENTIAL INTEREST
OF THE SAN JUAN CAPISTRANO CITY COUNCIL
The City Council of San Juan Capistrano will meet at 6:30 p.m. on Tuesday, May 20,
2008 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. D8.
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, May 19, 2008 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.sanivanca�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�sa n i uancepistra no.oran i uancai)istra no.ora.
Meg Monahan, MMC
City Clerk
cc: Joe and Kendra Philip, Mountain Pines Christmas Tree Farm`; John and Erin
Tomalsoff, Mountain Pines Christmas Tree Farm'; Cindy Russell, Assistant City
Manager
Received staff report
San Juan Capistrano: Preserving the Pact to Enhance the Future
IBJ ann,ea on ioow,re<yciea paper
1011612007
AGENDA REPORT D9
TO: Dave Adams, City Manager 8�
FROM: Cindy Russell, Assistant City Manager
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 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 suubbmiitted,
Cindy Rus ell WJ-9 —
Assistant City Manager
Attachments:
1. Resolution
2. Amended License Agreement
3. Location Map
0 0
RESOLUTION NO. 07-10-16-xx-
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 16th day of October 2007.
SAM ALLEVATO, MAYOR
ATTEST:
MARGARET R. MONAHAN, CITY CLERK
ATTACHMENT
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 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.
1
ATTACHMENT
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 perfo(mance 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.
2
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 parry.
3
Licensor: Licensee:
Dave Adams, City Manager Joseph and Kendra Philip
City of San Juan Capistrano Husband and wife
32400 Paseo Adelanto 28241 Crown Valley Pkwy, #F-174
San Juan Capistrano, CA 92675. Laguna Niguel, CA 92677
John and Erin Tomalsoff
Husband and wife
#31 Rosings
Mission Viejo, CA 92692
Section 13. Attorney's Fees.
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.
CITY OF SAN JUAN CAPISTRANO
By:
Sam Allevato, Mayor
ATTEST:
By:
Meg Monahan, City Clerk
APPROVED T FORM:
By:
John R. S64W City Attorney
By:
Joseph Philip
4
By:
Kendra Philip
By:
John Tolmasoff
By:
Erin Tolmasoff
5
go
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26221 31 21 2984
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Copyright 2006.FARES.Customer Data.Digital Map Products. E:tjaa
Exhibit A
a. THE CITY OF
/ SAN JUANa R a
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Site Location
it
r
-
�t��n 'NF's ..�' �► ':S
000 6000 9000 Feet
• �son •
32400 PASEO ADELANTO _ (A� A MEMBERS OF THE CITY COUNCIL
SAN JUAN CAPISTRANO,CA 82675 /i L!! lupi
(849)4931171 SAM ALLEVATO
(849)4931053 FAX 1% II[e110t1IF1 THOMAS W.HRIBAR
fSI110f1f1 1961 MARK NIELSEN
www.sanjuancapistrano.org 1776 JOE SOTO
• •
DR LONDRES 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.sanivancaoistrano.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(cDsanivancaoistrano.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
Q* printed on 100%recycletl paper
RESOLUTION NO. 07-10-16- o 1
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 Cityof 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
I 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 46th day of October 2007.
AM ALLEVATO, MAYOR
ATTEST: ���
MA ET R. MONAHAN, CITY CLERK
Page 1 of 1 10/16/2007
STATE OF CALIFORNIA )
COUNTY OF ORANGE
CITY OF SAN JUAN CAPISTRANO )
1, MARGARET R.MONAHAN,appointed City Clerk of the City of San Juan Capistrano,do hereby certify that
the foregoing Resolution No. 07-10-16-01 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: COU CIL MEMBER: None
ABSENT: COU CILEMBER: None
MET R
.. MONAHAN, City Clerk
a
r
8/1/2006
AGENDA REPORT 016
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 August 1, 2006
COMMISSION/BOARD REVIEW AND RECOMMENDATIONS:
Not Applicable
FINANCIAL CONSIDERATIONS:
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
RESOLUTION NO. O6-roc-xx-
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 1s' day of August 2006.
DAVID M. SWERDLIN, MAYOR
ATTEST:
MARGARET R. MONAHAN, CITY CLERK
ATTACHMENT
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 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 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
1
ATTACHMENT 2
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 ail
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.
2
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: Licensee:
Dave Adams, City Manager Joseph and Kendra Philip
City of San Juan Capistrano Husband and wife
32400 Paseo Adelanto 28241 Crown Valley Pkwy, #F-174
San Juan Capistrano, CA 92675 Laguna Niguel, CA 92677
John and Erin Tomalsoff
Husband and wife
#31 Rosings
Mission Viejo, CA 92692
Section 13. Attorney's Fees.
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.
3
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:
David M. Swerdlin, Mayor
ATTEST:
By:
Meg Monahan, City Clerk
APPROVED AS TO F M:
By: 4
John R. haw, City Attorney
By: Ai
Jo ip
By.
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By: �
John TolmassoQff - d/
Erin Tolmasoff
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32400 PASEO ADELANTO MEMBERS OF THE CITY COUNCIL
SAN JUAN CAPISTRANO,CA 92675 /% I6L�'
(949)493-1171 SAM ALLEVATO
(949)493.1053 FAX • f:�J m[oAvoArtFB DIANE BATHGATE
[SIF/lBX1G I (96( WYATT HART
www.sanjuancapistrano.arg 1778
JOE SOTO
•
DAVID M.SWERDLIN
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 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.san'uancapistrano.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-agendas(a)sanivancapistrano.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
4,1 Printed on l00%Recycled Paper
Today's Date: July 25, 2006 Transmittal Routing
(Check All That Apply)
❑ City Attorney
❑ City Manager
® City Clerk
CONTRACT TRANSMITTAL
CIP No. (if any):
Project Manager's Last Name: Russell Phone Extension: 6302
Council or CRA Meeting Date (if applicable): August 1, 2006
APPROVING AUTHORITY: (Check One)
`E 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 Cit St Zi
Charles Petzler 8415 E Chapman Ave Orange CA 92869
Joseph and Kendra Philip28241 Crown Valle Pkwy, #f-174 Laguna Ni uel Ca 92677
John and Erin Tomalsoff 31 Rosins Mission V--o Ca 92692
OTHER INSTR CTIONS:
'K
Form Date'01-2004 D -7
RESOLUTION 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 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.
PASSED, APPROVED, AND ADOPTED this 1s` day of August 2006.
c
DAVID M. S ERDLIN, MAYOR
-i7
ATTEST,'
MARGA�fff k. MO f AHA ' , CITY CLERK
Page 1 of 1 8/1/2006
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.06-08-01-02 was dulyadopted bythe City Council of the Cityof 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: COUN IL MEMBER: None
M G RET R. MONAHAN, City Clerk