22-1019_FARMAKIS FARMS, LLC_Amended Restated License Agreement61147.00310\34442927.1
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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.
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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
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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
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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
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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.
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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.
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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 th e 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.
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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.
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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.
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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