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13-0306_TOLMASOFF, TOM & TANYA/ BAYO, FRANK_License AgreementLICENSE AGREEMENT This License Agreement is entered into this 6th day of March 2013, by and between the City of San Juan Capistrano (hereinafter "City"), and Frank Bayo, Tom Tolmasoff, and Tanya Farmakis-Tolmasoff, a general partnership, doing business as Mountain Pines Christmas Tree Farm (hereinafter collectively "Licensee"). RECITALS WHEREAS, the City is the owner of APN 650-023-09, approximately 2.04 acres and APN 650-023-08, approximately 0.27 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 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 (114) of Area A —Tree Farm with new pine trees. Licensee agrees to pay all operational costs for Christmas tree farm purposes. Section 2. Water. Water is available to the LICENSEE at the Property from an agricultural well. Licensee is required to pay its pro -rata share of all costs required in keeping the water system operational, including but not limited to power, repairs and on-going maintenance. LICENSEE also has water available through the City's water system and is required to pay for any water billed through this meter at the agricultural rate currently in effect at the time the water is used. Section 3. 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. Licensee shall be allowed to conduct Halloween and Christmas Season events annually as outlined in this section. In order to conduct these events, the Licensee shall submit a special activities permit application, covering the period from the first Friday in October through December 24 of each year. no later than July 1 of each year. Such application must be deemed complete by the City, otherwise no events shall occur. Halloween Season — The Halloween Season shall begin the first Friday in October and continue through October 31 of each year. During this time, the Licensee may conduct a pumpkin patch or seasonal event on Area A after having been issued a special activities or other required permit by the City. Christmas Season — The Christmas Season shall begin the day after Thanksgiving and continue through December 24 of each year. During this time, the Licensee may conduct a Christmas or seasonal event on Area A, including the sale of trees grown on the Property after having been issued a special activities permit by the City. Licensee shall be allowed to use the fruit stand on the Property for purposes of selling items. The Licensee shall be allowed to have a temporary tent erected during the period of time covered by the Special Activities Permit. However, no special activities, other than clean-up, and set-up shall occur from November 1 through Thanksgiving Day. Additionally, should Licensee desire to import pumpkins for sale during the Halloween Season or Christmas trees for sale during the Christmas Season on the Property, such importation and sale shall be subject to written approval by the City. 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 Activities 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 event parking area. No other uses shall be allowed on Area B. Section 4. Compensation. As consideration for use of the Property, Licensee shall pay the City six percent (6%) of the total annual gross sales, or $1,500 whichever is greater. On January 1, 2014, the base payment amount will be increased by 5% ($1,575); on each January 1St thereafter, beginning on January 1, 2015, the base will be increased based on the Consumer Price Index (CPI) —All Urban Consumers for Los Angeles -Riverside -Orange County, CA area from March to March. This payment shall be made in January of each year in the form of a check made payable to the City. Licensee shall provide an accounting of all sales made on the Property when the check is submitted to the Licensor and make available all financial records of all operations to the Licensor, if requested, for purposes of conducting an audit to 2 ensure compliance with this Section. Records shall be presented to the City Finance Department within ten (10) business days. Section 5. Term. The term of this Agreement shall be effective from the date of execution of the Agreement until March 5, 2018. Section 6. 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 7. 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, the 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 without any compensation or adjustment due to Licensee. City will provide a minimum of sixty (60) calendar days advance notice of City's intent to utilize the needed property. Section 8. 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; keep the Property clean of trash, debris and rubbish; 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 9. 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 10. 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 11. 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 12. No Assignments. Licensee shall not assign its rights under this Agreement to any third party without the advance written consent of the City. Section 13. 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: City Manager City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Section 15. Attorney's Fees. Licensee: Tom Tolmasoff and Tanya Farmakis-Tolmasoff 27222 Cordero Lane Mission Viejo, CA 92691 Frank Bayo 387 Magnolia Ave., 103-524 Corona, CA 92879 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 16. 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 4 by any party hereto which is not contained herein shall be binding or valid. Section 17. 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 18. 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] IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written. ATTEE 0 APPRIwwr0 i rvrtrvi. By: Hans Van Ligten, City Attorney CITY OF SAN JU*N CAPISTRANO M I r,, , �I 4 •NV� Arse A- Tree Fem �() APN: 650-02309 3Ml Area 8 - cki8pedai E1�ent Pang Only sL APN- 66O-023-08 Ca q*M 7009. FARES. Cu%Wnw Daft. Dlobd WsP Pm&4b. EtidsoobsVd3�CbidYJty kOLpdr Exhibit A Today's Date: March 5, 2013 Transmittal Routing (Check All That Apply) City Attorney City Manager ❑✓ City Clerk FINAL CONTRACT TRANSMITTAL COUNCIL MEETING DATE (if applicable): March 5 ❑✓ Reviewed as to form by City Attorney and date approved Project Manager's Last Name: Salcedo CIP No. (if any): APPROVING AUTHORITY: (Check One) Phone Extension: 6317 ❑✓ Mayor ❑ SACRA Chair ❑ City Manager ❑ Oversight Board Chair ❑ SJCHA Chair 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 parry to receive an agreement — unless the mailing address is included within the body of the agreement: Names Street city St Zi Mountain Pines ChrisVnaa Tree Fann 27222 CorAem Lane Mission Yep CA 92991 OTHER INSTRUCTIONS: Christmas Tree Farm agreement Farm Dale: 92012 D-7 a ` 3/5/2013 `'JtiFloxti�' D 6 City of San Juan Capistrano Agenda Report TO: Honorable Mayor and City un Members FROM: Karen P. Brust, City n Prepared by: Cathy alc ecutive Services Manager DATE: March 5, 2013 SUBJECT: Consideration of a Five -Year License Agreement for the City -Owned Property Located at the north end of APN 650-023-09 and 0.54 acre portion of APN 650-023-09 and APN 650-023-08 (Mountain Pines Christmas Tree Farm) RECOMMENDATION: By motion, approve a new five-year License Agreement with an additional five-year option to renew with Mountain Pines Christmas Tree Farm. EXECUTIVE SUMMARY: The Mountain Pines Christmas Tree Farm has indicated that they wish to extend their current License Agreement for the approximately 1.5 usable acres of City -owned property located at the north end of APN 650-023-09 (Area A — tree farm) and 0.54 acre portion of APN 650-023-09 and APN 650-023-08 (Area B - special event parking) (Attachment 1, Exhibit A). The new Agreement would be for a period of five years, expiring in March 2018. The current Agreement expires in 2015 (Attachment 2); however, the Lessees are in the annual process of purchasing seedlings for growth in the upcoming calendar years and would like to enact a new, longer Agreement to accommodate its investment. As part of the evaluation for an extended Agreement, staff has evaluated the current use and zoning for the property. The property is a remnant parcel, approximately two (2) acres alongside the 1-5 Freeway. The usable portion for growing Christmas trees is approximately 1.5 acres. The property is zoned as General Open Space (GOS) and the 2006 Open Space Master Plan establishes policies consistent with permitting the continuation of the "tree farm" use. Other allowed uses in the GOS Zone District are attached (Attachment 3) and include archery ranges; cemeteries; church; religious or fraternal facility; driving range; equestrian facilities; passive recreation facilities; and nature studies. The current use is much less intensive than other permitted GOS uses consistent with the Open Space Master Plan. City Council Staff Report March 5, 2013 Page 2 of 3 DISCUSSION/ANALYSIS: The City's acquisition of the site in 1992 included the Christmas tree farm parcel. It has been utilized for this purpose since then under two other operators. In 2006, the City Council approved a license agreement with Mountain Pines Christmas Tree Farm. Mountain Pines has been current in its lease payments and has maintained the property appropriately. The current Agreement requires that the Licensee replant at least one quarter of the tree farm with new pine trees each year and pay all operational costs, including water usage, for the farm purposes. The current use is a live Christmas Tree Farm which provides live, fresh cut Christmas trees during the Christmas holiday season and also a fall pumpkin patch during the Halloween/fall holiday time to residents in the City and surrounding areas. The Mountain Pines Christmas Tree Farm owners have been utilizing the property for the intended purpose, abiding by City rules and regulations, and would like to expand to sell fresh fruits and vegetables via a farmer's market type of fruit/vegetable stand, which is permitted on the property and subject to written approval of the site plan by the City. FISCAL IMPACT: The current Agreement requires a 6% of total annual gross sales or $1,500 derived from all sales on the property, whichever is greater to be paid to the City. Under the new Agreement, the base price of $1,500 would be increased by 5% effective for calendar year 2014; with an annual 5% increase thereafter. The City received a total of $3,940.00 as its share of gross sales for calendar year 2012; a total of $10,017.60 has been received by the City for its share of gross sales for calendar years 2010, 2011, and 2012. ENVIRONMENTAL IMPACT: Not applicable. PRIOR CITY COUNCIL REVIEW: • On April 6, 2010, the City Council approved the current License Agreement. COMMISSION/COMMITTEE/BOARD REVIEW AND RECOMMENDATIONS: Not applicable. NOTIFICATION: Tom Tolmasoff and Tanya Farmakis-Tolmasoff John and Erin Tolmasoff Frank Bayo J 1 049' fam smqG salloW h bemp! hnuuW bns Sam! 6; M MoTm ...l juss Q Wyn; osynaoh ad! Tod! askupsi 1myssn"A 10, lOncqS1SqO to yy Me isay Ase assf mul mk =1 rM eel YA to iensu(,• nompy nns! WknA On ukdo W less ju Vol, evil qVil 3r jidv: ile-t F, no�;;sez 1c"I tz""flj "J" bosqxc Ot Vieiol -1 -A1.4 -iv :)FIE;',? 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City Council Staff Report March 5, 2013 Page 3 of 3 ATTACHMENT(S): Attachment 1 — Draft License Agreement Attachment 2 — Current License Agreement Attachment 3 — City Municipal Code Section 9-3.309 — Open Space Districts LICENSE AGREEMENT This License Agreement is entered into this 6th day of March 2013, by and between the City of San Juan Capistrano (hereinafter "City"), and Frank Bayo, Tom Tolmasoff, and Tanya Farmakis-Tolmasoff, a general partnership, doing business as Mountain Pines Christmas Tree Farm (hereinafter collectively "Licensee"). RECITALS WHEREAS, the City is the owner of APN 650-023-09, approximately 2.04 acres and APN 650-023-08, approximately 0.27 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 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 (114) of Area A— Tree Farm with new pine trees. Licensee agrees to pay all operational costs for Christmas tree farm purposes. Section 2. Water. Water is available to the LICENSEE at the Property from an agricultural well. Licensee is required to pay its pro -rata share of all costs required in keeping the water system operational, including but not limited to power, repairs and on-going maintenance. LICENSEE also has water available through the City's water system and is required to pay for any water billed through this meter at the agricultural rate currently in effect at the time the water is used. ATTACHMENT 1 Section 3. 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. Licensee shall be allowed to conduct Halloween and Christmas Season events annually as outlined in this section. In order to conduct these events, the Licensee shall submit a special activities permit application, covering the period from the first Friday in October through December 24 of each year. no later than July 1 of each year. Such application must be deemed complete by the City, otherwise no events shall occur. Halloween Season — The Halloween Season shall begin the first Friday in October and continue through October 31 of each year. During this time, the Licensee may conduct a pumpkin patch or seasonal event on Area A after having been issued a special activities or other required permit by the City. Christmas Season — The Christmas Season shall begin the day after Thanksgiving and continue through December 24 of each year. During this time, the Licensee may conduct a Christmas or seasonal event on Area A, including the sale of trees grown on the Property after having been issued a special activities permit by the City. Licensee shall be allowed to use the fruit stand on the Property for purposes of selling items during these events. The Licensee shall be allowed to have a temporary tent erected during the period of time covered by the Special Activities Permit. However, no events or activities, other than clean-up, and set-up shall occur from November 1 through Thanksgiving Day. Additionally, should Licensee desire to import pumpkins for sale during the Halloween Season or Christmas trees for sale during the Christmas Season on the Property, such importation and sale shall be subject to written approval by the City. 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 Activities 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 event parking area. No other uses shall be allowed on Area B. Section 4. Compensation. As consideration for use of the Property, Licensee shall pay the City six percent (6%) of the total annual gross sales, or $1,500 whichever is greater. On January 1, 2014, the base payment amount will be increased by 5% ($1,575); on each January 1" thereafter, beginning on January 1, 2015, the base will be increased based on the Consumer Price Index (CPI) —All Urban Consumers for Los Angeles -Riverside -Orange County, CA area from March to March. This payment shall be made in January of each year in the form of a check made payable to the City. Licensee shall provide an accounting of all sales made on the Property when the check is submitted to the Licensor and make available all financial records of all operations to the Licensor, if requested, for purposes of conducting an audit to E ensure compliance with this Section. Records shall be presented to the City Finance Department within ten (10) business days. Section 5. Term. The term of this Agreement shall be effective from the date of execution of the Agreement until March 5, 2018. Section 6. 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 7. City's Camino Capistrano Road Widening Protect. 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, the 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 without any compensation or adjustment due to Licensee. City will provide a minimum of sixty (60) calendar days advance notice of City's intent to utilize the needed property. Section 8. 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; keep the Property clean of trash, debris and rubbish; 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 9. 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 10. Insurance. Licensee shall maintain at all times during the term of this Agreement comprehensive Kj 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 11. Indemnily. 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 12. No Assignments. Licensee shall not assign its rights under this Agreement to any third party without the advance written consent of the City. Section 13. 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: City Manager City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Section 15. Attorney's Fees. Licensee: Tom Tolmasoff and Tanya Farmakis-Tolmasoff 27222 Cordero Lane Mission Viejo, CA 92691 Frank Bayo 387 Magnolia Ave., 103-524 Corona, CA 92879 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 16. Entire A-greement. 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 4 by any party hereto which is not contained herein shall be binding or valid. Section 17. 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 18. 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] 5 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written. ATTEST: By: Maria Morris, City Clerk APPROVED AS TO FORM: By: , City Attorney CITY OF SAN JUAN CAPISTRANO By: John Taylor, Mayor By: Tom Tolmasoff By: Tanya Farmakis-Tolmasoff By: Frank Bayo .10 All �t Area 8 - special Event Parking Only ,, APN:660-023-08 cor,11012009. FARES. Cwftn r Oso+. C41W Aftp Pm&cb. E.Aaodb*AMV:Indr—Rq• t.pa Exhibit A LICENSE: AGREEMENT This License Agreement is entered Into this �t.t. day of April 2010, by and between the City of San Juan Capistrano (hereinafter "City"), and John and Erin Tolmasoff, as husband and wife; and Tom Tolmasoff and Tanya Farm a kls-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 0.27 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 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. Scone 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, for Christmas tree farm purposes. Section 2. Water. Water is available to the LICENSEE at the Property from an agricultural well. Licensee is required to pay their pro -rata share of all costs required in keeping the water system'operational, including but not limited to power, repairs and on-going maintenance. LICENSEE also has water available through the City's water system and is required to pay for any water billed through this meter at the agricultural rate currently in effect at the time the water is used. ATTACHMENT 2 Section 3. 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. The Licensee shall be allowed to conduct Halloween and Christmas Season events annually as outlined in this section. In order to conduct these events, the Licensee shall submit a special activities permit application, covering the period from the first Friday in October through December 24 of each year. no later than July 1 of each year.. Such application must be deemed complete by the City, otherwise no events shall occur. Halloween Season -- The Halloween Season shall begin the first Friday in October and continue through October 31 of each year. During this time, the Licensee may conduct a pumpkin patch or seasonal event on Area A after having been issued a special activities or other required permit by the City. Christmas Season — The Christmas Season shall begin the day after Thanksgiving and continue through December 24 of each year. During this time, the Licensee may conduct a Christmas or seasonal event on Area A, including the sale of trees grown on the Property after having been issued a special activities permit by the City. The Licensee shall be allowed to use the fruit stand on the Property for purposes of selling items during these events. The Licensee shall be allowed to have a temporary tent erected during the period of time covered by the SAP. However, no events or activities, other than clean-up, and set-up shall occur from November 1 through Thanksgiving Day. Additionally, should Licensee desire to import pumpkins for sale during the Halloween Season or Christmas trees for sale during the Christmas Season on the Property, such importation and sale shall be subject to written approval by the City. 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 4. 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 the total annual gross sales, or $1,500 derived from the all sales on the property, whichever is greater. This payment shall be made in January of each year in the form of a check made payable to the City. Licensee shall provide an accounting of all sales made on the Property and make available all financial records of all operations 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 5. Term. The term of this Agreement shall be effective from the date of execution of the Agreement until January 31, 2015. Section 6. Defaul . 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 7. 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 8. Condition of Progertx. 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; keep the Property clean of trash, debris and rubbish; 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 9. 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 10. Compliance with Law: E -Verify. 10.1. Compliance with Law. Licensee shall comply with all applicable laws, ordinances, codes and regulations of federal, state and local government, including the City. 10.2. E -Verify. If Licensee is not already enrolled in the U.S. Department of Homeland Security's E - Verify program, Licensee shall enroll in the E -Verify program within fifteen days of the effective date of this Agreement to verify the employment authorization of new employees assigned to perform work hereunder. Licensee shall verify employment authorization within three days of hiring a new employee to perform work under this Agreement. Information pertaining to the E -Verify program can be found at htto://vwvw.uscis.gov, or access the registration page at htti)s://www.vis-dhs.com/emgloverregistration. Licensee shall certify its registration with E -Verify and provide its registration number within sixteen days of the effective date of this Agreement. Failure to provide certification will result in withholding payment until full compliance is demonstrated. Section 11. 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 12. 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 13. No Assignments. Licensee shall not assign its rights underthis Agreement to any third partywithoutthe written consent of the City. Section 14. 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. 4 Licensor: Joe Tait, City Manager City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Section 15. Attorney's Fees. Licensee: Tom Tolmasoff and Tanya Farmakis-Tolmasoff Husband and wife 27222 Cordero Lane Mission Viejo, CA 92691 John and Erin Tolmasoff Husband and wife #31 Rosings Mission Viejo, CA 92692 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 16. 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 17. 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 18. 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] IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written. CITY OF SAN JUAN CAPISTRANO By: ")e e--'. C� a.T TZ Joe Tait, City Manager ATTEST: By: . r ".- ��P W. , Maria Morris, Co APPROVED AS TO FORM: By: VVIVy/ Jill MkI&I Omar Sandoval, City Attor y 6 Municode http://libnuy.municode.com/print.aspx?h=&clientlD=l 6607&HTMRequ... Sec. 9-3.309. - Open space districts. (a) Purpose and intent. The following -eight open space districts have been established for the following purpose and intent: (1) General Open Space (GOS) District. The purpose and intent of the General Open Space (GOS) District is to provide for the possible combined development of several of the uses or the Individual development of one of the uses specifically allowed by the other open space districts in accordance with the General Plan. (2) Open Space Recreation (OSR) District. The purpose and intent of the Open Space Recreation (OSR) District is to provide for the provision of outdoor recreational facilities in accordance with the General Plan. (3) Neighborhood Park (NP) District. The purpose and intent of the Neighborhood Park (NP) District is to provide for well distributed small neighborhood parks to serve residential areas in the immediate area in accordance with the General Play. (4) Community Park (CP) District. The purpose and intent of the Community Park (CP) District is to provide for major active recreation sites in accordance with the General Plan. (5) Specialty Park (SP) District. The purpose and intent of the Specialty Park (SP) District is to provide for unique or specialized forms of recreational activities in accordance with the General Plan. (6) Regional Park (RP) District. The purpose and intent of the Regional Park (RP) District is to provide for the future use of the Prima Deshecha landfill as phases are closed and available for active and passive recreational development in accordance with the General Plan. (7) Natural Open Space (NOS) District. The purpose and intent of the Natural Open Space (NOS) District is to provide for natural open space land that separates developed areas from one another, preserves natural features like creeks, ridgelines, or hillsides, or includes natural hazards like landslides in accordance with the General Plan. (8) Recreation Commercial (RC) District. The purpose and intent of the Recreation Commercial (RC) District is to provide for Indoor and outdoor recreational activities in accordance with the General Plan. (b) Uses regulations. (1) Table 3-10 identifies the uses permitted in the General Open Space (GOS), Open Space Recreation (OSR), Neighborhood Park (NP), Community Park (CP), Specialty Park (SP), Regional Park (RP), Natural Open Space (NOS), and Recreation Commercial (RC) Districts. (2) Uses listed as conditionally permitted uses are subject to the review requirements and conditions contained in Section 9-2.317 Conditional Use Permit. Accessory use are subject to the review requirements and conditions contained in Section 9-3.501 Accessory Uses and Structures. (3) The "notes and exceptions" column of Table 3-10 indicates more precisely the use regulations for specific uses or operating characteristics. The notes and exceptions must be reviewed in conjunction with the other information for the class of use. (4) Certain permitted uses and conditionally permitted uses may be subject to special conditions regarding location, operation, or the design of the use. The sections of this title governing these uses are identified in the "notes and exceptions" column of Table 3-10. Table 3-10 Uses In Open Space Districts (please refer to end of table for notes) 1 of ATTACHMENT 3 Municode http://library.municode.conVprint.aspx?h=&cl icntI D-16607&HTMRequ... se GOS DSR NP CP SP RP NOS RC Notes and Exceptions ccessory uses and tructures incidental o the operation of a permitted use1 Archery range Bed and breakfasts C C C C C C ubjectto ection 9-3.509 ed and reakfasts Beer, wine, and liquor licenses, on -sale, for alcohol consumed on remises amping facilities P aretaker residences A 4 A A A A A A ubjectto (temporary and ection 9.3.511 aretaker ermanent) esidences and ection 9-3.553 emporary ses and tructures Cemeteries Church, religious, or Includes fraternal agogues, emples, osques, and ther buildings sed for the urposes erein but xcludes day are centers, nd private nd/or econdary ducational acilities. stands ancing and live 1oncession ntertainment rivingranges — — ating and drinking A a. Drive•thru stablishments not allowed. . Must be ncidental to nd integrated ith a rincipal use nd a onditional use ermit is approved by he Planning Commission if lcohol is to be 2 of 6 2/12/2013 5:05 PM Municode http://library.municode.con/print.aspx?h=&clicnti13=16607&HTMRequ... 3 of 2/12/2013 5:05 PM consumed on the premises o if there is to b dancing or live entertainment Equestrian facilities C C — — — C — C Subject to (commercial and Section 3.515 noncommercial) Equestrian Standards. Game machines (3 or A A — — — — A be less) JMust accessory to a primary use. Game machine C — — — — — — C center Grazing, animal P 1P P — indoor recreational P — — — — P Includes activities bowling, cinemas, gymnasiums, i and similar activities. Farming (crop and P — — P P — tree Golf course C C — — — C — C The outdoor (regulation or par 3) night lighting of golf courses shall not be permitted unless a conditional use I permits approved by the City. Golf course C — — — — — C miniature Passive recreation — C — — — — — C Includes facilities museums, private clubs and lodges, libraries, and I� theaters (except drive-ins aintenance/suppo A A A A A facilities Use GOS OSR NP CP SP RP NOS RC Notes and Exceptions Mining, oil drilling, C C C C C C C C Includes and other resource necessary extraction incidental buildings and laDDurtenances. Multi-purpose sports P P — P P P — P fields and courts (large) Nature study center P — — — P P — — for similar educational center 3 of 2/12/2013 5:05 PM Municodc httpg/library.municode.com/print.aspx?h=&clientiD=16607&HT MRequ... Outdoor P - - - IP - - am hitheater Outdoor recreational P P - - - P a. Includes facilities (public and private) swimming schools and tennis clubs. b. The outdoor night lighting of such recreational uses shall not be permitted unless a conditional use permit is approved by the City. Picnic area P P 1P P P P P P Pro -accessory shop A A - A - A Must be Incidental to a principal use. Public facilities and P P P P P P P P utilities Radio and television C C C C C C C C Subject to towers and Section 9.3.50 Antennas. Installations, radar installations, microwave relay stations, and cellula towers and Installations commercial Recycling facilities - - - - - - - P Subject to Section 9-3.53 Recycling Facilities. Section 9.3.53 Recycling j Facilities Identifies the specific allowed re clip uses. Sports arenas and C - - - - - - C stadiums Sports fields and P P P P P P - P courts small Tot lots 1P P P 1P 1P 1P P P = Principal use permitted by right - - Not permitted - Accessory use permitted by right (subject to Section 9.3.501 Accessory Uses and Structures) C - Conditional use permit required sub ect to Section 9.2.317 Conditional Use Permit Note: 1 IncludIng any accessory uses or strictures permitted In conjunction YAM approval of an applicable tentative map or other entitlement granted by the City on or before November 15. 2M. (c) Development standards. Table 3-11 identifies the development standards for the General Open 4 or6 2/12/2013 5:05 PM Municode http://Iibrary.municode.com/print.aspx?h=&client]D--1 6607&HTMRequ... Space (GOS), Open Space Recreation (OSR), Neighborhood Park (NP), Community Park (CP), Specialty Park (SP), Regional Park (RP), Natural Open Space (NOS), and Recreation Commercial (RC) Districts. Table 3-11 Development Standards for Open Space Districts District Min. Lot in. ne Sta Two Sto Floor Area Ratio in. Front Yd2 In. Side Yd."' in Rear d.2,4 Min. Front in. Side d."3 in. Rear 1 st d2,4 r/Lot 2nd Fir olst Flr Bldg Hgt Area treet rontaget Yd.' Area OS 0 acre 00 ft. 50 ft. 0 ft. 0 ft. 50 ft. 0 ft. 0 ft. .10 5% 5 ft. SR acre 00 ft 0 ft. ft. 5 ft. 0 ft. 10 ft. 5 ft. .10 0% 5 ft. P ,200 sq. ft. 0 ft. ft. 5 ft. 0 ft. ft. 5 ft. .10 0% 5 ft. t. P acres 150 ft. 0 ft. 0 ft. 0 ft. 0 ft. 0 ft. 0 ft. .05 0% 5 ft. P 200 sq. 0 ft. ubject to development and approval of a Specific Plan and development review per �tl. ection 9.2.337 Public Improvement Plans and Outside en Development Review. PJ1,,200 ubject to development and approval of a Specific Plan and development review per Section 9.2.337 Public rovement Plans and OutsideAgencyDevelo ment Review. C sq. ft. 0 ft. 5 ft. 5 ft. 0 ft. 10 ft. 5 ft. P.40 5% 5 ft. . Note: Min. -Minimum DUaDwellin Unit Yd -Yard, Rr-Floor, Bldg -Building, and H t-Hei ht 1 Lots with street frontages below the minimum set forth in this table may be permitted without the approval of a variance if all of the following conditions are met: (a) The lot's street frontage remains a minimum of 20 feet; (b) The lot is designed such that the reduced width portion constitutes an access corridor to the buildable portion, which is set back away from the street; (c) The minimum width of the buildable portion of the lot conforms to the requirements of this table; and (d) The Planning Commission determines that adequate visitor parking will be provided on the lot to compensate for he loss of street frontage parking. he actual creation of reduced frontage lots shall be subject to normal City approval of required tract or parcel maps. he reduced frontage portion of such lots shall not be included in the computation of lot area (see Section 9-4.315 Irregular and Cul -de -Sac Lots). The criteria for measuring setbacks on irregularly-shaped and cul-de-sac lots are set forth In Section 9-4.315 Irregular and Cul -de -Sac Lots. Architectural projections may extend into required side yards no more than 40 percent of the applicable district equirement, or more than 3 feet whichever is greater. On lots with an existing building setback encroachment into a required rear yard, structural additions having the ame said encroachments shall be permitted without the approval of a variance. However, no new encroachment in xcess of that existing, nor any new encroachment may be permitted without the approval of a variance (see Section -3.533 Nonconforming Uses Lots and Structures). (d) Development review. Projects proposed within the General Open Space (GOS), Open Space Recreation (OSR), Neighborhood Park (NP), Community Park (CP), Specialty Park (SP), Regional Park (RP). Natural Open Space (NOS), and Recreation Commercial (RC) Districts shall be subject to applicable review procedures as set forth in Article 3 Development Review Procedures of Chapter 2 of this title. (e) Supplementary district and temporary use regulations. For sign, parking, fence, swimming pool, and similar regulations for the General Open Space (GOS), Open Space Recreation (OSR), Neighborhood Park (NP), Community Park (CP), Specialty Park (SP), Regional Park (RP), Natural Open Space (NOS), and Recreation Commercial ORO Districts, see Article 5 Supplemental District Regulations of this chapter. 5 of 6 2/12/2013 5:05 PM Municode http://Iibrary.municode.com/print.aspx?h=&clicntlD=16607&1 ITMRequ... (f) Environmental overlay standards. Standards related to management of project effects on sensitive natural resources (i.e. floodplains, ridgelines, etc.) shall he as set forth in Article 4 Environmental Overlay Districts of this chapter. (§ 2, Ord. 869, as amended by § 2 (part), Ori, 939, o.. August 17, 2008) (Ord. No. 995, § 2.b., 6-19-2012) 6 of 6 2/12/2013 5:05 PM 32400 PASEO AOELANTO SAN JUAN CAPBTRANO, CA 92675 (949)4931171 (949) 49}10W PAX v,ncsnnj+mncaprsfranunrg MEMBERSOFTHECMY000N L $ AJXVAM ROY L BYRNES. MD. LARRY KRAMER OEREK REEVE JOHN TAYLOR NOTIFICATION OF MEETING OF POTENTIAL INTEREST OF THE SAN JUAN CAPISTRANO CITY COUNCIL The City Council of San Juan Capistrano will meet at 6:00 p.m. on Tuesday, March 5, 2013, in the City Council Chamber in City Hall, to consider: "Consideration of a Five - Year License Agreement for the City -Owned Property Located at the north end of APN 650-023.09 and 0.54 acre portion of APN 650.023.09 and APN 650-023-06 (Mountain Pines Christmas Tree Farm)" — Item No. D6. 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, March 4, 2013, 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 Cathy Salcedo, Executive Services Manager. You may contact that staff member at (949) 443-6317 with any questions. The agenda, including agenda reports, is available to you on our web site: www.sanivancapistrano.org. If you would like to subscribe to receive a notice when agendas are posted to the web site, please make that request by sending an e-mail to: citvclerk(a)sani uancaoistra no. orq. Maria Morris, CMC City Clerk cc: Tom Tolmasoff and Tanya Farmakis-Tolmasoff; John and Erin Tolmasoff; Frank Bayo .San Atan Capisirano: Arserving the Pas! m Enhance the Funny 32400 PASEO ADELANTO SAN JUAN CAPISTRANO. CA 92675 (949) 493.1171 (949) 493.1053 FAx www.sanjuancapistrano. org TRANSMITTAL TO: Tom Tolmasoff and Tanya Farmakis-Tolmasoff Mountain Pines Christmas Tree Farm 27222 Cordero Lane Mission Viejo, CA 92691 DATE: March 25, 2013 FROM: Manny Ruelas, Office Assistant (949) 443-6308 MEMBERS OF THE CITY COUNCIL SAM ALLEVATO ROY L. BYRNES. M.D. LARRY KRAMER DEREK REEVE JOHN TAYLOR RE: License Agreement — City -Owned Property Located at the north end of APN 650-023-09 and 0.54 acre portion of APN 650-023-09 and APN 650-023-08. Enclosed: (1) License Agreement for City -Owned Property Located at the north end of APN 650-023- 09 and 0.54 acre portion of APN 650-023-09 and APN 650-023-08. If you have questions concerning the agreement, please contact Cathy Salcedo, Executive Services Manager at (949) 443-6317. Cc: Cathy Salcedo, Executive Services Manager San Juan Capistrano.- Preserving the Pasl to Enhance the Future �, Printed on 100% recycled paper 32400 PASEO ADEL.ANTO SAN JUAN CAPISTRANO. CA 92675 (949) 493.1171 (949) 493.1053 FAx ww%v.sagJuancapis1rano. arg TRANSMITTAL TO: Frank Bayo Mountain Pines Christmas Tree Farm 387 Magnolia Ave., 103-524 Corona, CA 92879 DATE: March 25, 2013 FROM: Manny Ruelas, Office Assistant (949) 443-6308 MEMBERS OF THE CITY COUNCIL SAM ALLE VATO ROY L. BYRNES, M.D. LARRY KRAMER DEREK REEVE JOHN TAYLOR RE: License Agreement — City -Owned Property Located at the north end of APN 650-023-09 and 0.54 acre portion of APN 650-023-09 and APN 650-023-08. Enclosed: (1) License Agreement for City -Owned Property Located at the north end of APN 650-023- 09 and 0.54 acre portion of APN 650-023-09 and APN 650-023-08. If you have questions concerning the agreement, please contact Cathy Salcedo, Executive Services Manager at (949) 443-6317. Cc: Cathy Salcedo, Executive Services Manager San Juan Capistrano: Preserving the Past to Enhance the Future 10 Printed on 100% recycled paper