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21-1019_FARMAKIS FARMS, LLC_Agenda Report_E6City of San Juan Capistrano Agenda Report TO: Honorable Mayor and Members of the City FROM: Benjamin Siegel, City Manager SUBMITTED BY: Joel Rojas, Development Services Director DATE: October 19, 2021 SUBJECT: Amended and Restated License Agreement with Farmakis Farms, LLC for the City-Owned Property Located at 29932 Camino Capistrano (APN 650-023-08 and APN 650-023-09) RECOMMENDATION: Approve and authorize the City Manager to execute an Amended and Restated License Agreement (Attachment 1) with Farmakis Farms, LLC for use of City-owned property located at 29932 Camino Capistrano. EXECUTIVE SUMMARY: The City’s acquisition of the Northwest Open Space property in 1992 included approximately 2.6 acres of property located between Camino Capistrano and the I-5 Freeway, commonly referred to as the Christmas Tree Parcel. Since acquisition, the City has executed license agreements allowing various tenants to operate a Christmas tree farm on the subject property. In 2010, the City Council assigned the License Agreement (“Agreement”) to the current operators, Tom Tolmasoff and Tanya Farmakis-Tolmasoff, doing business as “Mountain Pines.” The current ten-year Agreement with Mountain Pines was approved by the City Council in 2017 and expires in 2027. In 2019, Mountain Pines changed its name to Farmakis Farms. Farmakis Farms is requesting that the current Agreement be amended to increase the number of allowed Farmers Market events on the property from one per week to two per week. In addition to this change, the current Agreement is proposed to be amended to remove language that is no longer applicable and address issues that have arisen since approval of the Agreement in 2017. Farmakis Farms has been a very responsible operator, abiding by the current Agreement’s terms, properly maintaining the property and gradually increasing gross sales over the last few years. As a result, staff is 10/19/2021 E6 City Council Agenda Report October 19, 2021 Page 2 of 4 recommending that the City Council approve an Amended and Restated Agreement with Farmakis Farms. DISCUSSION/ANALYSIS: The City acquired the Christmas Tree Parcel in 1992 as a remnant parcel that was part of the adjacent Northwest Open Space acquisition. The subject property is located across Camino Capistrano from the Swanner House, between Camino Capistrano and the I-5 Freeway, just north of Trabuco Creek (Attachment 2). The property consists of two separate parcels that total 2.62 acres in size. The property is zoned General Open Space (GOS) and the City’s 2006 Open Space Master Plan establishes policies for the property consistent with a "tree farm" use. A Christmas tree farm has operated on the property since the mid-1960s. Since City acquisition of the property in 1992, the City has executed license agreements allowing various tenants to operate a Christmas tree farm on the property. In 2006, the City Council approved an Agreement with an operator known as “Mountain Pines.” In 2008, the City Council extended the Mountain Pines Agreement to 2013 and expanded uses on the property to include Halloween pumpkin sales. In 2010, the City Council assigned the Agreement to the current operators, Tom Tolmasoff and Tanya Farmakis-Tolmasoff. In 2013, the City Council extended the Agreement with Mountain Pines to 2018. In 2017, the City Council extended the Agreement with Mountain Pines to 2027. In 2019, Mountain Pines changed its name to Farmakis Farms. Under the current Agreement (Attachment 3), Farmakis Farms is allowed to conduct the following activities and improvements: • A Christmas tree farm and sales • Halloween pumpkin sales • One Farmers Market event per week • The sub-leasing of community gardens • Operation of a fruit stand • Construction of a new barn (completed) • Construction of a sound wall along the freeway (completed) • Landscaping improvements • Electrical/lighting upgrades Earlier this year, Farmakis Farms requested that they be allowed to conduct Farmers Market events two days per week and be allowed to have small outdoor/indoor events, arts and crafts fairs and food truck events on the property (Attachment 4). Farmakis Farms was informed that the current Agreement could be amended to increase the number of Farmers Market events per week and that individual Special Activities Permits would need to be obtained for the other requested events. City Council Agenda Report October 19, 2021 Page 3 of 4 In addition to increasing the number of weekly Farmers Market events, the current Agreement is proposed to be updated to remove language that is no longer applicable and include new language to better address issues that have arisen since approval of the current Agreement in 2017. The proposed amended Agreement includes the following clean-up amendments: • The inclusion of site plans and conditions of approval for the Christmas tree farm/sales, pumpkin sales and Farmers Market events • Clarification of the allowed animal keeping on the property • Clarification of the allowed parking on the property • Clarification that City approval is needed before bringing any materials onto the property • An update of the list of allowed improvements on the property since some have been completed • Clarification of the tenant’s water and sewer service responsibilities • Clarification of the tenant’s water quality responsibilities • Clarification of the tenant’s maintenance responsibilities • Clarification of the vehicular circulation on the property The updated Agreement has been reviewed and approved by the City’s Public Works Department, Utilities Department and the City Attorney’s office, and agreed to by Farmakis Farms. As a result, staff is recommending that the City Council approve and authorize the City Manager to execute the Amended and Restated Agreement with Farmakis Farms for use of City-owned property located at 29932 Camino Capistrano. FISCAL IMPACT: The current Agreement requires Farmakis Farms to pay the City an annual payment of 6% of total annual gross sales on the property, or $8,000, whichever is greater. No change to the required compensation is being made. ENVIRONMENTAL IMPACT: In accordance with the California Environmental Quality Act (CEQA) the recommended action is exempt from CEQA per Section 15061(b)(3), the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA. PRIOR CITY COUNCIL REVIEW: • On December 5, 2017, the City Council approved a ten-year Agreement with Mountain Pines, extending the term to March 2027. City Council Agenda Report October 19, 2021 Page 4 of 4 • On March 5, 2013, the City Council approved a five-year License Agreement with Mountain Pines, extending the term to March 2018. • On April 6, 2010, the City Council agreed to assign the Mountain Pines License Agreement to the current operators, Tom Tolmasoff and Tanya Farmakis- Tolmasoff. • On May 20, 2008, the City Council approved a five-year License Agreement with Mountain Pines. COMMISSION/COMMITTEE/BOARD REVIEW AND RECOMMENDATIONS: Not applicable. NOTIFICATION: The following individuals have been notified about this item: Farmakis Farms Hamilton Oaks Winery (Swanner House Operator) Jim Adam (Hidden Creek Estates) ATTACHMENT(S): Attachment 1 – Proposed Amended License Agreement Attachment 2 – Aerial Location Map Attachment 3 – Current License Agreement Attachment 4 – Farmakis Farms Request 61147.00310\34442927.1 61147.00310\30140153.4 AMENDED AND RESTATED LICENSE AGREEMENT BY AND BETWEEN THE CITY OF SAN JUAN CAPISTRANO AND FARMAKIS FARMS, LLC PARTIES AND DATE This Amended and Restated License Agreement (“Agreement”) is entered into as of October 19, 2021 (“Effective Date”) by and between the City of San Juan Capistrano, a California municipal corporation (the “City”) and Farmakis Farms, LLC, a California limited liability company (the “Licensee”). City and Licensee are sometimes hereinafter individually referred to as “Party” and hereinafter collectively referred to as the “Parties.” RECITALS A. The City is the owner of certain real property situated in the City of San Juan Capistrano of County, California (the “Property”), and more particularly described in Exhibit “A” and incorporated herein: i. A parcel of 2.04 acres located at 29932 Camino Capistrano [APN: 650-023-09] identified as Area A in Exhibit A; and ii. A parcel of 0.58 acres located at 29936 Camino Capistrano [APN: 650-023-08] identified as Area B in Exhibit A. B. At the time the City acquired the Property in 1992, the Property was operated as a Christmas Tree Farm that was identified by the City as a use to be continued at the Property. Since the City’s acquisition of the property, the City has approved licenses with various entities to operate a Christmas Tree Farm on the Property. The current license is with Licensee, which license was approved by the City on December 5, 2017 to operate a Christmas Tree Farm, conduct Halloween pumpkin sales and year-round community gardens on the Property terminates on December 5, 2027 (the “Current License”). C. The Licensee desires to continue to use the Property for purposes of growing and selling Christmas trees, Halloween pumpkin sales, weekly farmers markets and year-round community gardens. D. The Parties desire to enter into this amended and restated license agreement to allow the Licensee to use the Property for the above-stated purposes with additional days of farmers markets and to clarify and update other provisions of the Current License in accordance with the terms and conditions set forth in this Agreement. TERMS 1. Grant of License. ATTACHMENT 1 61147.00310\34442927.1 61147.00310\30140153.4 1.1. Scope. The City grants to Licensee a license to use the Property as follows described below: 1.1.1. Christmas Tree Farm and Sales. Licensee is required to plant and maintain pine trees within Area A as identified on Exhibit A. Each year, Licensee is required to re-plant at least one quarter (1/4) of the pine trees located within Area A. During the Christmas season of each year, which is defined here as the Sunday before Thanksgiving Day through December 24, the Licensee is permitted to sell trees grown on the property and trees imported to the Property. In conjunction with said tree sales, the Licensee is allowed to conduct related concession stand sales, events and activities during the Christmas season only. All such sales, events and activities are limited to the area of the Property shown on the site plan attached hereto as Exhibit B and subject to the conditions listed in Exhibit E, attached hereto. Any deviations from this site plan or conditions must be approved in advance by the City Manager. 1.1.2. Halloween Pumpkin Sales. During the Halloween season of each year, which is defined here as October 1 through October 31, the Licensee is permitted to sell pumpkins grown on the property and pumpkins imported to the property. In conjunction with said pumpkin sales, the Licensee is permitted to erect temporary tents and conduct related concession stand sales, events and activities during the Halloween season only. All such sales, events and activities are limited to the area of the property shown on the site plan attached as Exhibit C and subject to the conditions listed in attached Exhibit E. Any deviations from this site plan or conditions must be approved in advance by the City Manager. 1.1.3. Farmers Market. Licensee is permitted to conduct a Farmers Market on the Property no more than two days per week in accordance with the site plan attached as Exhibit D and subject to the conditions listed in attached Exhibit E. All parking for sellers and buyers associated with the Farmers Market must be contained on the Property. 1.1.4. Community Gardens. Licensee is permitted to sub-license portions of Area A to individuals for use as community gardens on a year-round basis. All parking associated with the community gardens must be contained on the Property. 1.1.5. Fruit Stand. Licensee is permitted to grow fruits and vegetables on Area A of the Property and sell such products to the public from a fruit stand located on the Property on a year-round basis. With the exception of the Farmers Market identified in Section 1.1.3 above, Licensee is not permitted to import fruits or vegetables for sale from the Fruit Stand on the Property. 1.1.6. City Tractor. Licensee is permitted to use the City owned tractor that is on the Property in conjunction with all the permitted activities and sales described in this Agreement. Licensee shall not change or modernize the historic appearance of the City owned tractor. The tractor will remain the property of the City when this Agreement terminates. 1.1.7. Grazing animals. Licensee is permitted to maintain certain grazing animals on the Property as an accessory use to the primary farming use. Only the following grazing animals are allowed to be maintained on the Property: goats, sheep, chickens, and cows. With exception of household pets (dogs and cats), Licensee is not permitted to bring any other animals onto the Property. The 61147.00310\34442927.1 61147.00310\30140153.4 permitted grazing animals shall be maintained in accordance with the operation and maintenance descriptions contained on the site plans attached as Exhibits B, D and E. 1.1.8. Parking. Licensee is permitted to use the Property for parking only during the events identified above or during special events approved through a Special Activities Permit by the City. Licensee is not permitted to sub-license any portion of the Property to any other party for parking purposes, without first obtaining City approval. No other uses, other than event parking, shall be allowed in Area B of the Property. Licensee shall ensure that City approval is obtained before importing any gravel, fill or mulch onto the Property and that any gravel, fill or mulch brought onto the Property does not slough onto the adjacent public trail or city street. 1.1.9. Site Improvements. Licensee is permitted to seek the appropriate City planning approvals and building permits for only the following improvements to the Property: Modifications to the existing barn; a new or modified sound wall along the freeway; landscaping improvements; electrical/lighting upgrades; and community garden improvements. Licensee is responsible for paying all the applicable application and permit fees associated with these improvements. Licensee is solely responsible for the cost of constructing and operating said improvements. Any improvements that are constructed will remain the property of the City when this Agreement terminates. 1.2. Other Uses. The Licensee may not use the Property for any other purpose or business not described in Section 1.1 (Scope) without obtaining the City’s prior written consent. 2. Term. This Agreement shall be effective for ten (10) years commencing on December 5, 2017, except as otherwise provided in this Agreement. The Agreement shall automatically renew for a new 10-year term unless Licensee provides City written notice of its intention not to renew not less than thirty (30) days prior to expiration of the original 10-year term. 3. Compensation. As consideration for use of the Property, Licensee shall pay the City six percent (6%) of the total annual gross sales that occur on the Property, or Eight Thousand Dollars ($8,000), whichever is greater, less the annual difference in water service charges for a 1-inch water meter and a 2-inch water meter for the calendar year preceding the payment date below. This payment shall be made on or before January 31 of each year in the form of a check payable to the City. Licensee shall provide an accounting of all sales made on the Property when the check is submitted to the City and make available all financial records of all operations to the City, if requested, for the purposes of conducting an audit to ensure compliance with this Section. 4. Condition of the Property. 4.1. Acceptance of Condition. Licensee accepts the Property in its present condition upon execution of this Agreement. 4.2. The Licensee’s Obligations to the Condition. Licensee agrees, at Licensee’s expense, to use reasonable care to keep the Property clean of weeds, trash, debris, and rubbish as well as to keep the Property’s landscaping, fences, ditches, and borders in good condition and repair at all 61147.00310\34442927.1 61147.00310\30140153.4 times, reasonable wear and tear expected. It is the Licensee’s responsibility to ensure that any activities conducted on the Property are conducted in compliance with the National Pollution Discharge Elimination Standards (NPDES) most recently adopted by the City and the San Diego Regional Water Control Board. 4.3. Maintenance of Property. 4.3.1. Licensee shall be wholly responsible for the performance and for all costs associated with maintaining the Property, including maintaining all trees and landscaping on the Property. The City will not contribute to the costs of maintaining the Property unless explicitly articulated in this Agreement. 4.3.2 Licensee shall be responsible for ensuring that any necessary tree removal on the Property is completed in accordance with the City’s Tree Removal Ordinance (San Juan Capistrano Municipal Code section 9-2.349). Licensee shall be responsible for all costs associated with obtaining a Tree Removal Permit and removing any trees. 4.3.3 Licensee shall ensure that any trees or shrubs on the Property are maintained to provide adequate site distance at the Property’s vehicular exits. No vegetation on the Property is allowed to exceed 30 inches in height within a 25-foot triangular area adjacent to each driveway. Licensee is not responsible for maintaining any vegetation located within the public right-of-way. 4.3.4 Licensee shall provide lids/covers for all trash cans throughout the Property. 4.3.5 Licensee shall ensure that the southernmost vehicular access gate identified on the attached site plans is used for entrance only and that the vehicular access gate located next to the barn on the attached site plans is used for exit only. At the southernmost gate, Licensee shall install and maintain an “ENTRANCE ONLY” sign that is clearly visible from the street and an “ENTRANCE ONLY” sign that is clearly visible from the interior of the Property. At the gate next to the barn, Licensee shall install and maintain “EXIT ONLY” and “DO NOT ENTER” signs that are clearly visible from the street and an “EXIT ONLY” sign that is clearly visible from the interior of the Property. These required signs must be 18” x 24” with black lettering on a white background. No signage is allowed to be placed within the public right-of-way. 4.4. Property Access by the City. A duly authorized representative of City may enter upon the Property during working hours of 8:00 am to 5:00 pm Monday through Friday for the purposes of inspection and to perform any necessary maintenance or repair of City facilities. The Licensee must be notified prior to City entering the Property. 4.5. Water and Sewer Service. 4.5.1. Water is available to Licensee at the property from a privately owned agricultural well. Any costs associated with use of the private well by the Licensee, including but not limited to power, repairs, on-going maintenance or redevelopment of the private well, compliance reporting associated with the operation, repair, redevelopment of the well, and any legal costs related to 61147.00310\34442927.1 61147.00310\30140153.4 defending the Licensee’s use of the well shall be the responsibility of the Licensee and the owner of the private well. 4.5.2. Licensee may purchase from the City water system and pay for on a timely basis any water obtained from the City water system, at the landscape rate in effect at the time the water is used and the monthly water meter service charge in effect or as may be adopted at any time during the term of this License. If Licensee connects to a City gravity sewer, the water billed through the meter will be changed to the Commercial rate then in effect. 4.5.3. If Licensee requires any other changes to the water service system in place, Licensee agrees to pay all design, construction, permit, and other costs of making such changes. 4.5.4. The Property is not served by sewer service. Licensee is responsible for ensuring that adequate restroom facilities are provided to the visiting public. Licensee has the sole cost responsibility of providing the onsite wastewater effluent holding system that currently consists of an effluent tank that is regularly emptied by a sewer disposal service. If Licensee desires sewer service, Licensee shall be responsible for all costs of design, permitting, and construction of revised sewer systems for the Property. 4.6. Road Widening. If the City ever undertakes the widening of Camino Capistrano where it abuts the Property, the City reserves the right to take possession of any Property deemed necessary to accomplish the road widening during the term of this Agreement without any compensation or adjustment due to the Licensee. City will provide a minimum of one (1) year advance notice of City’s intent to utilize the needed property. 5. Termination of Occupancy. On or before the termination or expiration of this Agreement, the Licensee shall remove all of Licensee’s personal property from the Property and shall surrender possession of the Property to the City in good order and repair to the satisfaction of the City, normal wear and tear excepted. 6. Default. 6.1. Notice to Cure. In the event of a default by the Licensee, the City shall give the 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 default is not cured by the Licensee within the 30 days’ notice period, then the City may immediately terminate this Agreement. 6.2. Additional Time to Cure. If the nature of Licensee’s obligation is such that more than thirty (30) days are required for performance, then the Licensee shall not be deemed to be in default if it commences the cure within the thirty (30) day notice period provided in Section 6.1 (Notice to Cure) and thereafter diligently prosecutes the same to completion. If the default is not cured by Licensee in a reasonable amount of time, then the City may immediately terminate this Agreement 7. Indemnification. 61147.00310\34442927.1 61147.00310\30140153.4 7.1. Indemnification of the City by the Licensee. The Licensee shall defend, indemnify and hold the City, its officials, officers, employees, and agents (the “Indemnified Parties”) free and harmless from any and all liability from loss, damage, or injury to property or persons, including wrongful death, in any manner arising out of or incident to acts, omissions, and/or operations by the Licensee, its officials, officers, personnel, employees, contractors, and/or subcontractors as well as its contractors’ and/or subcontractors’ officials, officers, employees, and agents. Further, the Licensee shall defend at its own expense, including attorneys’ fees, the Indemnified Parties in any legal action based upon such acts, omissions and/or operations. 7.2. The Licensee’s Obligations. The Licensee’s obligations under this Section 7 (Indemnification) shall apply to all damages and claims for damages of every kind suffered, or alleged to have been suffered, regardless of whether or not the City has prepared, supplied, or approved any plans or for the uses allowed by this Agreement, and regardless of whether or not such insurance policies shall have been determined to be applicable to any of such damages or claims for damages. 7.3. The City’s Rights. The City does not and shall not waive any rights against the Licensee that the City may have under the indemnification provision in this Section 7 (Indemnification) because of the City’s acceptance of any security deposits or insurance policies. 7.4. Survival. The indemnification provision in this Section 7 (Indemnification) shall survive the termination or expiration of this Agreement. 8. Insurance. 8.1. Coverage and Amount. The Licensee agrees to maintain in full force during the term of this Agreement, at Licensee's own expense, a policy of comprehensive liability insurance, including property damage, which will insure Licensee and the City against liability for injury to persons, damage to property, and death of any person occurring in or about the Property. The City shall be named as an additional insured on the policy. The insurance shall be not less than $2,000,000 per occurrence and a $3,000,000 aggregate. The Licensee’s insurance policy shall be the primary insurance while the City’s insurance is non-contributory. Other terms and conditions, including cancellation provisions and endorsement forms, shall be reviewed and approved by the Office of the City Attorney. 8.2. Copy of Policy and Endorsements. The Licensee shall provide the City with a copy of the policy, including an endorsement that states that the policy will not be cancelled except after ten (10) days’ notice in writing to the City. 9. Attorneys’ Fees. If any legal action or proceeding arising out of or relating to this Agreement is brought by either party to this Agreement, the prevailing party shall be entitled to receive from the other party, in addition to any other relief that may be granted, the reasonable attorneys’ fees, costs, and expenses incurred in the action or proceeding by the prevailing party. 61147.00310\34442927.1 61147.00310\30140153.4 10. Governing Law and Venue. This Agreement shall be governed by the laws of the State of California. Venue shall be in Orange County. 11. Waiver. The City’s failure to insist upon strict compliance with any provision of this Agreement or to exercise any right or privilege provided herein, or the City’s waiver of any breach hereunder, shall not relieve the Licensee of any of its obligations hereunder, whether of the same or similar type. The foregoing shall be true whether the City’s actions are intentional or unintentional. Further, the Licensee agrees to waive as a defense, counterclaim, or setoff any and all defects, irregularities, or deficiencies in the authorization, execution, or performance of this Agreement as well as any laws, rules, regulations, ordinances, or resolutions of the City with regard to this Agreement. 12. Supplement, Modification, and Amendment. No supplement, modification, and/or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 13. Assignment or Transfer. 13.1. No Assignment without the City’s Consent. The Licensee shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without prior written consent of the City. Any attempt to do so shall be null and void, and any assignee, hypothecatee, or transferee shall acquire no right or interest by reason of such attempted assignment, hypothecation, or transfer. Unless specifically stated to the contrary in the City’s written consent, any assignment, hypothecation, or transfer shall not release or discharge the Licensee from any duty or responsibility under this Agreement. 13.2. Merger. The transfer of a majority of the ownership interests in the Licensee, however accomplished, and whether in a single transaction or in a series of related or unrelated transactions, or the merger of the Licensee into any other entity in which the Licensee is not the surviving entity, or the sale of all or substantially all of the Licensee’s assets, shall be deemed an assignment of the Licensee’s rights hereunder subject to the requirements of Section 13.1 (No Assignment without the City’s Consent). 14. Construction, References, and Captions. 14.1. Simple Construction. It being agreed the Parties or their agents have participated in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. 14.2. Section Headings. Section headings contained in this Agreement are for convenience only and shall not have an effect in the construction or interpretation of any provision. 14.3. Calendar Days. Any term referencing time, days, or period for performance shall be deemed calendar days and not work days. 61147.00310\34442927.1 61147.00310\30140153.4 14.4. References to the City. All references to the City shall include, but shall not be limited to, City Council, City Manager, City Attorney, City Engineer, or any of their authorized representatives. The City shall have the sole and absolute discretion to determine which public body, public official or public employee may act on behalf of the City for any particular purpose. 14.5. References to the Licensee. All references to the Licensee shall include all officials, officers, personnel, employees, agents, contractors, and subcontractors of Licensee, except as otherwise specified in this Agreement 15. Relationship Between the Parties. The Parties hereby mutually agree that neither this Agreement, nor any other related entitlement, permit, or approval issued by the City for the Property shall operate to create the relationship of partnership, joint venture, or agency between the City and the Licensee. The Licensees’ contractors and subcontractors are exclusively and solely under the control and dominion of the Licensee. Nothing herein shall be deemed to make the Licensee or its contractors or subcontractors an agent or contractor of the City. 16. Notices. All notices to be given hereunder shall be in writing and may be made either by personal delivery or by registered or certified mail, postage prepaid, return receipt requested. Mailed notices shall be addressed to the parties at the addresses listed below, but each party may change the address by written notice in accordance with this Section 16 (Notices). Notices delivered personally will be deemed communicated as of actual receipt; mailed notices will be deemed communicated as of two (2) days after mailing. To City: To Farmakis Farms, LLC : City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: City Manager Farmakis Farms 28081 Marguerite Pkwy, #2424 Mission Viejo, CA 92690 17. Entire Agreement and Severability. 17.1. Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements, either written or oral, express or implied. 17.2. Severability. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement. 18. Binding Effect. 18.1. The Parties. Each and all of the terms and conditions of this Agreement shall be binding on and shall inure to the benefit of the Parties, and their successors, heirs, personal representatives, or assigns. 61147.00310\34442927.1 61147.00310\30140153.4 18.2. Successors and Assigns. This Agreement shall be binding on the successors and assigns of the Parties. 18.3. Recordation. The Licensee acknowledges and agrees that the City may cause a copy of this Agreement to be recorded in the Orange County Recorder’s Office. 18.4. Not Authorization to Assign. This Section 18 (Binding Effect) shall not be construed as an authorization for any Party to assign any right or obligation under this Agreement other than as provided in Section 13 (Assignment or Transfer). Signatures on next page. 61147.00310\34442927.1 61147.00310\30140153.4 SIGNATURE PAGE TO LICENSE AGREEMENT BY AND BETWEEN THE CITY OF SAN JUAN CAPISTRANO AND FARMAKIS FARMS, LLC In witness thereof, the Parties here to have executed this Agreement: City of San Juan Capistrano Farmakis Farms, LLC By: _________________________________ By: _________________________________ City Manager Tom Farmakis-Tolmasoff ATTEST: By: _________________________________ By: _________________________________ City Clerk Tanya Farmakis-Tolmasoff APPROVED AS TO FORM: By: _________________________________ City Attorney Are a B - Spe ci al Event Par king O nl y Area A - Tree Fa rm APN: 650-023-09 APN: 650-023-08TRABUCO CREEK RDC A MIN O CAPIST RA N O R A N C H O VIEJ O R D 29861 29802 29881 29901 29943 30291 29891 29841 29902 29931 29871 29851 29911 EXHIBIT A EXHIBIT B EXHIBIT C EXHIBIT D EXHIBIT E Conditions of Approval that apply to Christmas Tree Farm, Pumpkin Patch and Farmers Markets events. 1. No event setup may take place prior to the event time frames identified in the License Agreement. All event-related items must be removed from the property within two weeks of the conclusion of the event. 2. Event signage is limited to the banners and signs approved pursuant to Sign Program (SP) 20-015. 3. Any canopies/tents must comply with all requirements of Orange County Fire Authority. 4. The serving, sales, and consumption of alcohol on site is prohibited. 5. All food vendors on the property must obtain approval by the Orange County Health Care Agency. 6. Any music shall comply with the noise standards identified in Municipal Code Section 9- 3.531 and shall be directed away from any neighboring residences or businesses. 7. All exterior lighting shall be directed inward to the property and be turned off by 9:00 p.m. nightly. All lighting shall comply with the standards identified in Municipal Code Section 9- 3.529. 8. The site shall be maintained clean from trash and debris. 9. If an event creates a parking demand that cannot be accommodated onsite, the ability to have similar events in the future may be revoked by the City Manager. 10. All vendors on the property must obtain a City Business License prior to doing business. 11. Approval from Orange County Animal Care Services must be obtained for any on-site animal exhibitions. PAGE 1 OF 2 Farmakis Farms January 27, 2021 City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Dear Mayor Taylor, Mayor Pro Tem Reeve, and City Councilmembers: We hope you and your families are doing well, healthy, and staying safe. My name is Tanya Farmakis, my husband Tom and I are the proud owners of Farmakis Farms. We would like to request a renegotiation of our lease agreement and want to take this opportunity to share our goals for the future of our farm. We’ve been working closely with Joel Rojas who will be presenting this to all of you sometime in February. However, I’d like to explain why we are looking to renegotiate our lease. There are a few items we would like added to our lease agreement to help us conduct business at the farm throughout the year, rather than only Nov/Dec, and a once-a-week farmers' market. This year COVID-19 hit our business hard and we felt the negative impact and financial loss. We were unable to open our annual pumpkin patch, we significantly decreased the number of trees we typically sell during Christmas season, and were unable to launch the farmers market earlier than we planned. Here are the requested additions: 1.Add an additional day to conduct a second farmers' market. The feedback from customers and vendors has been so positive and after surveying them, there is a high demand for a weekend market to accommodate the many working folks that cannot attend the Friday market. o Our goal is to stay true to a Certified Farmers' Market. We DO NOT want this to become any type of flea market/swap meet type of event. We turn away so many vendors who want to join because they do not meet our criteria. We are purposely selective on who we bring into the market, keeping it primarily food and produce with only a few other vendors sprinkled in. We pride ourselves in our farmers’ market consisting of quality and not quantity. ATTACHMENT 4 229932 CAMINO CAPISTRANO SAN JUAN CAPISTRANO, CA 92675 FARMAKISFARMS@GMAIL.COM 2.The ability to hold small, outdoor and/or indoor events (maximum size 100 people). We receive requests on a regular basis for small events such as birthday parties, corporate lunches, bridal showers, etc. We currently have ample parking to support the amount of people. Drawings or site plan will be provided upon request. 3.Monthly or quarterly craft/art fairs or markets. The community of SJC has an extremely strong appreciation of the arts. We've been asked many times to hold an art or craft fair. The demand is there, and it is our way to support local, small businesses that have been negatively impacted by COVID-19. o We held our first craft market in November, and it was a huge success. However, part of holding the craft market meant we had to give up our pumpkin season dates because we would've been over the allowed number of days to conduct an event. 4.Food truck event. Arrange for various food trucks to come to the farm and allow folks to come and eat and take food to go. This would be held for approximately 3-4 hours. This is something for the future when it is safe and free and clear of COVID-19 restrictions related to social gatherings. We have been extremely good tenants of the city. We are in compliance with all of the city's rules and regulations and always obtain the necessary permits to operate. In no way are we looking to make additions that would have a negative effect on the city. We completely understand the city’s desire to preserve its culture and history. That’s what sets us apart from other cities. We're looking to enhance our farm and its offerings, generate more revenue for our farm and for the city, and continue to bring people in from outside cities to experience the uniqueness, history, and charm of San Juan Capistrano. I sincerely thank you for your time and consideration of our requests. I look forward to hearing your decision and what the future holds for our farm. Kindest regards, Tanya Farmakis