22-1213_THE ECOLOGY CENTER_Agenda Report_G1aCity of San Juan Capistrano
Agenda Report
TO: Honorable Mayor and Members of the City Council
FROM: Benjamin Siegel, City Manager
SUBMITTED BY: Thomas Toman, Public Works Director
DATE: December 13, 2022
SUBJECT: License Agreement Between the City and Ecocenter, Inc. (The
Ecology Center) for the Use of Farming Operations and
Environmental Education at the City Property Located at 32701
Alipaz Street (Assessor Parcel Number: 121-190-57) (Kinoshita
Farm and Joel Congdon House); and, Finding Said Action is
Categorically Exempt from the California Environmental Quality Act
(CEQA) Section 15301
RECOMMENDATION:
1. Approve and authorize the City Manager to execute a License Agreement with
Ecocenter, Inc. to conduct farming operations and environmental education on
28.225 acres of land located at 32701 Alipaz Street, commencing on January 1,
2023, for a 20-year term that may be extended for two additional 10-year terms
upon the written request of the Licensee; and,
2.Find that the proposed License Agreement with Ecocenter, Inc. is categorically
exempt from the California Environmental Quality Act (CEQA) per Section 15301.
EXECUTIVE SUMMARY:
The City and The Ecology Center have been working cooperatively toward a long-term
License Agreement that would preserve the agricultural and educational use of the City-
owned Kinoshita Farm site and historic Joel Congdon House under The Ecology Center’s
operation. A location map of the property is included as Attachment 1. Since August
2018, The Ecology Center has operated both the Kinoshita Farm site and historic
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December 13, 2022
Page 2 of 5
Congdon House, incorporating both into a nationally recognized environmental education
and agricultural center. The agreement for the use of the Kinoshita Farm site expires in
September 2023, and the agreement for the use of the Joel Congdon House expires in
May 2036. The proposed License Agreement would consolidate the two existing
agreements into a single long-term agreement, modify the fee structure and provide a
foundation for continued partnership between the City and The Ecology Center as
discussed further in this report.
DISCUSSION/ANALYSIS:
The former Community Redevelopment Agency (Agency) of San Juan Capistrano
purchased the approximately 56-acre Kinoshita Farm site in 1991 to fulfill an obligation of
the Agency to the Capistrano Unified School District (CUSD) to provide a replacement
site for CUSD facilities displaced by the Agency. Ultimately, the Agency provided CUSD
with seven acres of land for construction of the Kinoshita Elementary School.
Subsequently, the City purchased 45 acres from the Agency using Measure D Open
Space Bond funding. Four acres occupied by the Sports Park, Community Center, and
Boys and Girls Club were retained by the Agency until the 2012 statewide dissolution of
redevelopment. All property owned by the dissolved Agency was transferred to the City
in conjunction with the Long-Range Property Management Plan approved by the State in
2015.
Existing License Agreements
Since October 2010, The Ecology Center has operated the Joel Congdon House and
adjacent grounds as an environmental educational center and museum. The Joel
Congdon House is located adjacent to the Kinoshita Farm site at 32701 Alipaz Street. On
May 3, 2016, the City Council approved a 20-year License Agreement with The Ecology
Center for the purpose of managing and maintaining The Ecology Center within the
Congdon House property (Attachment 2). Under the Congdon House License
Agreement, the City receives $2,000 monthly in license fee payments plus annual
Consumer-Price Index (CPI) increases, which equates to approximately $2,500 per
month in 2022, or $30,000 annually.
In August 2018, The Ecology Center assumed farming operations on the Kinoshita Farm
site. The initial term of the License Agreement for the Kinoshita Farm site was for three
years, with options to extend for two additional one-year terms (Attachment 3). The
Ecology Center is currently in its second and final term extension of the License
Agreement. Under the Kinoshita Farm License Agreement, the City receives $35,000
annually in license fee payments and $10,000 annually toward the delinquent water
statement of the former Kinoshita Farm site operator. Since the City’s water utility
(including Water Fund) was transferred to the Santa Margarita Water District in November
2021, the payment associated with the delinquent water statement is tendered to SMWD.
In total, the City currently receives approximately $65,000 in annual revenue from the
Joel Congdon House and Kinoshita Farm License Agreements.
City Council Agenda Report
December 13, 2022
Page 3 of 5
Proposed License Agreement
The proposed License Agreement, provided as Attachment 4, combines the Joel
Congdon House and Kinoshita Farm License Agreements into one new License
Agreement with a 20-year initial term that may be extended for two additional ten-year
terms upon the written request of The Ecology Center. The proposed agreement provides
that The Ecology Center would pay the City $125,000 annually for the use of the property
in years 1 – 5; $150,000 annually in years 6-10; $175,000 annually in years 11-15; and,
$200,000 annually in years 16-20. Should The Ecology Center exercise the additional
10-year extension(s), payment would increase to $225,000 annually for the use of the
property in years 21-30, and $250,000 annually for years 31-40.
The proposed License Agreement provides that The Ecology Center shall not intensify
use on the property without first seeking and obtaining all necessary permits or approvals
from the City, including compliance with the California Environmental Quality Act. This
provision is applicable in the event The Ecology Center seeks to advance elements of its
“Transformative Community Farm” concept, introduced in 2018 and elements of which
are currently under review by staff after prior City Council initiation of potential future
amendment to the Specific Plan. For the time being, The Ecology Center remains
focused on its farming and educational efforts, which do not include many of the activities
previously envisioned as part of the “Transformative Community Farm” concept. With
that in mind, if The Ecology Center ultimately advances (and the City Council considers)
possible intensification of operations, either by conducting additional activities or
increasing the frequency of existing activities, the proposed License Agreement secures
the City’s ability to increase the abovementioned license fee payments.
As the City will be considering options for location of a future skatepark in 2023, should
the City Council determine that a portion of the Kinoshita Farm site be the preferred
location, under the proposed License Agreement The Ecology Center must cooperate
with the City during the design, environmental review and construction phases of the
project. Additionally, The Ecology Center would acknowledge that any modification of the
property and/or license area to accommodate a future skatepark would not re-open
negotiation of the License Agreement or the agreed-upon license fee payments.
The proposed License Agreement also memorializes the City’s intent to fund and
construct new, high-quality perimeter fencing around the entire Kinoshita Farm/Congdon
House property to enhance the appearance of the site from adjacent roadways. The
proposed agreement provides that the City would cover the cost of the fencing, with The
Ecology Center funding only those portions of perimeter fencing that include access gates
and/or doors to the property.
FISCAL IMPACT:
Under the proposed License Agreement with The Ecology Center, the City would receive
$3,250,000 in revenue during the initial 20-year term. The City would receive an
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December 13, 2022
Page 4 of 5
additional $2,250,000 for the first 10-year term extension, and $2,500,000 for the second
10-year term extension.
ENVIRONMENTAL IMPACT:
In accordance with the California Environmental Quality Act (CEQA), the recommended
action is exempt from CEQA per Section 15301, consists of operation, repair,
maintenance, permitting, leasing, licensing, or minor alteration of existing public or private
structures, facilities, mechanical equipment, or topographical features, involving
negligible or no expansion of use beyond that existing at the time of the lead agency’s
determination. This license agreement extends the term during which the licensor may
use the property. All uses are consistent with existing uses and do not expand or intensify
the existing use of the property.
None of the exceptions to the categorical exemptions identified in CEQA Guidelines,
section 15300.2 apply. There is nothing unusual about the project site or the project itself
that would lead to a potentially significant impact. And, even if an unusual circumstance
did exist (one does not), there is no reasonable possibility that the project would have a
significant effect on the environment. The project site is already developed with a
production farm and an education center that provides adequate access and provides
adequate off-street parking. Further, the project will not result in damage to scenic
resources within a highway officially designated as a state scenic highway; the closest
officially designated state scenic highway is located near Anaheim and therefore the
project will not result in damage to scenic resources within or near such highway. Further,
the project is not located on a site which is included on any list compiled pursuant to
Government Section 65962.5; the project site has not been designated as a hazardous
waste site. Further, the project will not cause a substantial adverse change in the
significance of a historic resource; specifically, there would be no substantial adverse
change in the significance of the Joel Congdon House for the reasons outlined in this
report and staff’s presentation. Thus, the Class 1 categorical exemption applies.
Should a future development project proposed by The Ecology Center move forward for
discretionary actions, the appropriate environmental documentation will be prepared
consistent with CEQA.
CITY COUNCIL REVIEW:
• On September 18, 2018, the City Council initiated an Amendment to the Kinoshita
Farm Specific Plan, thereby directing the Development Services Department to
conduct an appropriate study of a proposal to allow The Ecology Center’s proposed
commercial farm development project referred to as the “Transformative Community
Farm.”
• On August 21, 2018, the City Council approved and authorized the City Manager to
execute a License Agreement with Ecocenter, Inc. to conduct farming operations on
27 acres of land located at 32701 Alipaz Street, commencing on August 21, 2018, for
City Council Agenda Report
December 13, 2022
Page 5 of 5
a three-year term that may be extended for two additional one-year terms upon the
written request of the Licensee.
• On May 4, 2016, the City Council approved a 20-year License Agreement for the use
of the Joel Congdon House and an approximately 0.75-acre area located at
32701 Alipaz Street with The Ecology Center, for a monthly fee of $2,000.
COMMISSION/COMMITTEE/BOARD REVIEW AND RECOMMENDATIONS:
This item does not require commission, committee, or board review.
NOTIFICATIONS:
Evan Marks, Executive Director, The Ecology Center
Interested Parties List
ATTACHMENTS:
Attachment 1: Location Map
Attachment 2: License Agreement for Joel Congdon House
Attachment 3: License Agreement for Kinoshita Farm Site
Attachment 4: Proposed License Agreement
ATTACHMENT 1, PAGE 1 OF 1
LOCATION MAP
LICENSE AGREEMENT
BY AND BETWEEN THE CITY OF SAN JUAN CAPISTRANO
AND ECOCENTER, INC., DBA THE ECOLOGY CENTER FOR THE PROPERTY
LOCATED AT 32681 ALIPAZ STREET, SAN JUAN CAPISTRANO
PARTIES AND DATE
This License Agreement ("Agreement") is entered into as of this 21 day of August,
2018 ("Effective Date") by and between the City of San Juan Capistrano, a California
municipal corporation (the "City") and Ecocenter, Inc., dba The Ecology Center, a
California nonprofit public benefit corporation (the "Licensee"). City and Licensee are
sometimes hereinafter individually referred to as "Party" and hereinafter collectively
referred to as the "Parties."
RECITALS
A. Licensee is a nonprofit organization whose mission is to provide creative
solutions for thriving on planet earth. Licensee believes everyone should have
access to the tools, knowledge, and skills that promote healthy communities and
an abundant future for all.
B. City is the owner of a 28.225 acre farm located at 32681 Alipaz Street, San Juan
Capistrano, California, which was acquired by the City to be maintained as open
space.
C. Licensee desires to conduct farming operations on approximately 27.475 acres
of the property, with 0.50 acres set aside for City use.
D. Licensee has farming expertise and experience and desires to manage the
maintenance and operations of the agricultural activities on the property.
TERMS
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Grant of License.
1 .1 . Scope. The City grants to Licensee a license to manage, maintain and
operate a fruit and vegetable farm on 27.475 acres of the property located
at 32681 Alipaz Street, San Juan Capistrano (herein after "Property") as
described below:
1 .1.1. The Property subject to this Agreement is specifically depicted in
the Site Plan attached hereto as Exhibit "A" and is incorporated
hereby this reference.
1 .1 .2. The Joel Congdon House is not subject to this Agreement, but is
subject to a separate license agreement between City and
Licensee dated May 4, 2016.
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1 .1 .3. All crops harvested on the Property during the term of this
Agreement shall be the sole property of Licensee.
1 .1.4. City makes no warranty of the suitability of the Property for the
growing of crops.
2. Term. This Agreement shall commence on //// , 2018 ("Commencement
Date") and shall be effective for three (3) years ("Initial Term"), except as
otherwise provided in this Agreement. This Agreement may be extended for two
2) additional one (1) year terms, upon the written request of the Licensee. Such
notice of the extension shall be submitted to the City in writing no less than thirty
30) days before the expiration of the Term.
3. License Fees.
3.1. License Fees. In consideration of Licensee's nonprofit status and mission
as well as the terms of this Agreement, the Licensee agrees to annually
pay the license fees to City as follows:
3.1 .1. Twenty-five thousand ($25,000) dollars annually for the use of the
Property for the Initial Term.
3.1 .2. Should Licensee exercise the additional one (1) year extension(s)
pursuant to Section 2 of the Agreement, then the Licensee agrees
to pay City the fee amount of thirty-five thousand ($35,000) dollars
annually for the use of the Property for each extension year.
3.2. The initial payment of the annual License fee shall be due within five (5)
working days of the Commencement Date. Each subsequent payment of
the License fee shall be due annually on each anniversary of the
Commencement Date.
4. Licensee obligations.
4.1 . Licensee shall comply with all applicable laws, ordinances, codes and
regulations of federal, state and local government.
4.2. Operation of Farm. Licensee shall be responsible for the supervision and
management of every aspect of running a farming operation of produce for
human consumption on the Property in a business-like manner.
Supervision and maintenance obligations, shall be performed at no cost to
the City, and include but are not limited to:
4.2.1. The employment, supervision and direction of all employees
engaged in the farming operation.
4.2. 2. Providing for the maintenance of all equipment and supervising its
use in a safe and prudent manner.
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4.2.3. Soil preparation, planting, fertilizing, irrigating, pesticide and
herbicide applications, and the harvesting of all crops.
4.2.4. The marketing and sale of crops.
4.2.5. Maintenance of records and accounting for all revenues and
expenditures, including employee payroll and related records.
4.2. 6. Purchasing of all seeds, plants, fertilizers, herbicides, pesticides,
and other materials and supplies, such as boxes and packaging
materials, required for marketing and sale of the crops.
4.2.7. All operations shall be performed in a competent manner,
consistent with the standards of the industry and in accordance with
all applicable Federal, State and local regulations, including the
City's Municipal Code.
4.2.8. Licensee shall farm the Property in a manner that protects the soil
in accordance with sound agricultural practices commensurate with
the custom and practice within Orange County, California. Should
Licensee desire to implement any unique agricultural practices, the
Licensee shall seek written approval from the City in advance of
implementing the unique agricultural practices.
4.2.9. Licensee shall not plant or grow Cannabis otherwise known as
Marijuana ("Marijuana").
4.3. Maintenance of Property. Licensee shall be responsible for the
management and maintenance of all on-site improvements, at no cost to
the City.
4.3.1 . Temporary housing is subject to City's approval based on all
applicable provisions of the City's Land Use Code.
4.3.2. Licensee agrees to accept the Property in its present condition as
of the date of execution of this Agreement. Licensee may use the
buildings and existing structures on the Property for Licensee's use
in farming operations.
4.3.3. Licensee shall use reasonable care to control all weeds, noxious or
otherwise, growing on the Property, including those growing in
drainage ditches.
4.3.4. Licensee shall reasonably control all rodents, insects, and other
pests on the Property.
4.3.5. Licensee shall keep fences, ditches and borders of the Property in
good condition and repair.
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4.3.6. Licensee shall maintain, at Licensee's expense, the Property,
including all existing structures and all equipment owned and
furnished by Licensee, in a reasonable state of repair and working
order.
4.3.6.1. Licensee may plant fruit trees on the Property and
shall be responsible for properly maintaining all trees
including removal of all tree debris.
4.3.6.2. Licensee understands that the shrubs on the
Premises block the wind, limit road dust, and reduce the
amount of debris entering the Property. Licensee shall
sufficiently maintain the shrubs in order to keep harmful
elements away from the crops.
4.3.7. Licensee agrees that "The Letter Agreement Regarding Delinquent
Water Bill for the Property located at 32681 Alipaz Street, San Juan
Capistrano" ("Letter Agreement") datedbetween City and
Licensee was a material inducement for ity entering into this
Agreement with Licensee and, as such, any breach of the Letter
Agreement shall be considered a breach of this Agreement.
4.4. Retail Stand.
4.4.1. The existing retail stand may be utilized by Licensee solely for retail
sales of agricultural products. Related merchandise may be
allowed however, sales shall be primarily agricultural products and
City reserves the right to prohibit certain merchandise.
4.4.2. Licensee shall not sell Marijuana, Marijuana products or Marijuana
accessories as those terms are defined in the San Juan Capistrano
Municipal Code that may be amended from time to time.
4.4.3. Licensee is also permitted to allow members of the public to pick
their own produce. Sufficient parking on site shall be provided for
the retail stand.
4. 4. 4. Any expansion, regardless of size or scope, is prohibited under this
Agreement unless Licensee obtains written approval of the City.
4.5. Improvements: Licensee shall receive written approval from City prior to
making any improvements or alterations to the Property and/or facilities. If
a permit is required the Licensee shall submit to the Development
Services Department, in writing, any desired changes/improvements to the
Property and/or facilities. It is the responsibility of Licensee to determine if
a permit(s) is required. All required permits must be obtained prior to
commencing any improvement work.
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4.5.1. All improvements undertaken by Licensee shall be the sole
financial responsibility of Licensee unless Licensee and City enter
into a cost sharing agreement.
4.5.2. The total cost of all improvements shall not exceed ninety thousand
dollars ($90,000) during the Initial Term of this License Agreement.
4.6. Domestic and Irrigation Water, Electrical, Gas, Telephone,
Television/Cable/ Wireless Services. Licensee shall be solely responsible
for any and all expenses related to any and all utilities, including but not
limited to domestic and irrigation water, electrical, gas, telephone,
television/cable/wireless services, for the Property. Property shall be
repaired by Licensee if any damage is done to the Property due to the
installation or removal of the utilities and services.
4.7. Access Road. The access road as shown in Exhibit "A" attached hereto
and incorporated here shall be accessible for use by the representatives
of the wireless phone company to gain access to the antenna site located
on the sports park field adjacent to the Property. In addition, a gate and
corresponding locks shall be added and maintained at no cost to City.
4.8. Licensee shall, at all times, keep City advised of the name, address, and
telephone number of the person(s) responsible for the operation of the
Property.
4.9. On or before the termination or expiration of this Agreement, the Licensee
at their sole expense 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, in substantially the same condition at the time of
entry into this Agreement, to the satisfaction of the City. Licensee shall
leave Property free and clear of all rubbish and debris. Licensee shall not
remove any fruit trees or approved improvements at the termination of the
Agreement.
5. Multi-Use Trail Project. Licensee shall cooperate with the City, and City shall
involve Licensee, during the design, environmental review, and construction of a
multi-use trail project (hereinafter "Trail") through the Kinoshita Farms site
connecting the adjacent Vermeulen property, located north of Via Positiva, to the
Joel Congdon House located in the southeast quadrant of the Kinoshita Farm
property. Licensee shall not be liable for any costs associated with the Trail.
Licensee hereby agrees that the City and the contractors of the Trail shall have
access to the Property as necessary for the construction of the Trail. Upon
completion of the Trail, Licensee hereby agrees that City and members of the
public shall have access to the Trail.
6. Event Parking. Licensee shall provide, on-site vehicle parking for any event held
at the Property that exceeds one hundred (100) participants.
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7. Reservations to City
7.1. City reserves the right to enter the Property at any reasonable time for the
purpose of inspection. Any rights herein reserved shall, moreover, not be
exercised in any manner which will unreasonably interfere with Licensee's
use and occupancy of the Property for the purposes stated in this
Agreement.
7. 2. City also reserves the right to enter the Property for purposes of
maintenance, which may include the need for Licensee to vacate Property
for a reasonable temporary period to be specified at that time, with
provision of ninety (90) days' notice, except for repairs deemed to be for
emergency/public safety reasons no notice shall be required.
7.3. Fourth of July Celebration. City shall have use and access to the Property
at no cost to the City in order to host the fireworks celebration for the
Community from the Property each July 4th on an annual basis throughout
the term of this Agreement. This access shall include, but is not limited to,
all set up, coordination, and take-down activities necessary for the annual
fireworks display. City shall clean up and return the Property to its
ordinary state at the conclusion of such event.
8. Indemnification.
8.1 . Indemnification of City by Licensee. The Licensee shall defend (with
counsel approved by City), indemnify and hold the City, its officials,
officers, employees, and agents (the "City 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.
8.2. Indemnification of Licensee by City. The City shall defend (with counsel
approved by Licensee), indemnify and hold the Licensee, its officials,
officers, employees, and agents (the "Licensee 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 (i) the construction, operation, use, or maintenance of the
Trail on the Property, (ii) any other acts, omissions, and/or operations on
the Property by the City (including, but not limited to, any activities
conducted pursuant to Section 7) by City's officials, officers, personnel,
employees, contractors, and/or subcontractors as well as its contractors'
and/or subcontractors' officials, officers, employees, and agents.
8. 3. The Parties' obligations under this Section 8 (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,
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ATTACHMENT 3, PAGE 6 OF 13
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.
8.4. 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 8 (Indemnification) because of the City's acceptance of any
security deposits or insurance policies.
8. 5. Survival. The indemnification provision in this Section 8 (Indemnification)
shall survive the termination or expiration of this Agreement.
9. Insurance
9.1. On or before beginning any of the services or work called for by any term
of this Agreement, Licensee, at its own cost and expense, shall carry,
maintain for the duration of the Agreement, and provide proof thereof that
is acceptable to City, the insurance specified below with insurers and
under forms of insurance satisfactory in all respects to the City. Insurance
required herein shall be provided by Admitted Insurers in good standing
with the State of California and having a minimum Best's Guide Rating of
A-Class VII or better.
9.1 .1 . Throughout the term of this Agreement, Licensee at Licensee's sole
cost and expense, shall maintain in full force and effect the
following insurance against liabilities arising out of Licensee's
activities on the Property:
9.1 .1 . 1 . Comprehensive General Liability coverage in an
amount not less than two million dollars ($2,000,000), per
occurrence combined single limit coverage, and three million
dollars ($3,000,000) aggregate;
9.1 .1.2. Worker's Compensation in an amount not less than
one million ($1 ,000,000) per accident and to include a
Waiver of Subrogation;
9.1 .1.3. Automobile Insurance covering all owned, non-owned
and hired vehicles with a limit of one million dollars
1 ,000,000) each accident for bodily injury and property
damage; and,
9.1 . 1.4. The insurance coverage required herein shall be
primary insurance as respects the City, its officials,
employees, and volunteers. Any insurance or self-insurance
maintained by the City, its officials, employees, or volunteers
shall be in excess of the insurance required herein and shall
not contribute with it; and
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9.1 .1.5. The City, its officials, employees, and volunteers are
to be covered as additional insureds, and the coverage shall
contain no special limitations on the scope of the protection
afforded to the City, its officials, employees, or volunteers.
9.1.2. Proof of Insurance Requirements/Endorsement: Licensee shall
submit the insurance certificates, including the deductible or self-
retention amount, and an additional insured endorsement naming
City, its officers, employees, agents, and volunteers as additional
insured as respects each of the following: liability arising out of
activities performed by or on behalf of Licensee, including the
insured's general supervision of Licensee; products and completed
operations of Licensee; or premises owned, occupied or used by
Licensee. The coverage shall contain no special limitations on the
scope of protection afforded City, its officers, employees, agents, or
volunteers.
9.1.3. Notice of Cancellation/Termination of Insurance: The above
policy/policies shall not terminate, nor shall they be canceled, nor
the coverages reduced, until after thirty (30) days' written notice is
given to City, except that ten (10) days' notice shall be given if there
is a cancellation due to failure to pay a premium.
9.2. 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.
10. Termination. This Agreement may be terminated upon the default of one of the
Parties if such default is not cured within ninety (90) days following written notice
of such default from non-defaulting Party. In the event of a dispute between the
Parties, City and Licensee shall meet and confer regarding the matter. If the
dispute cannot be resolved through a meet and confer session, then the
Agreement may be terminated by the non-defaulting Party
10.1 . In the event Licensee files for bankruptcy or is found to be in a state of
insolvency, then City shall have the right to terminate this Agreement and
all further rights and obligations thereunder by ten (10) days' written notice
to Licensee. Upon the expiration of the ten (10) days' notice this
Agreement shall automatically terminate.
11 . Possessory Interest Tax Notice. Licensee hereby recognizes and understands
that this Agreement may create a possessory interest subject to property
taxation, and that Licensee may be subject to the payment of property taxes
levied on such interest. Any such imposition of a possessory interest tax shall be
a tax liability of Licensee solely, notwithstanding any provision of this Agreement
to the contrary. Licensee shall promptly notify City of any possessory interest tax
imposed against Licensee's interest in the License Area, and shall provide City
with a copy of any bill or assessment imposing the possessory interest tax.
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Licensee shall remit to the taxing agency the amount of the possessory interest
tax imposed against Licensee, and shall notify City in writing of the payment.
Licensee acknowledges that City, in accordance with California Revenue and
Taxation Code Section 107.6, has given notice to Licensee that Licensee may be
subject to property taxation, and that Licensee may be subject to the payment of
property taxes levied on the possessory interest created by this Agreement and
license. Licensee shall be fully responsible for the payment of all possessory
interest taxes levied and/or assessed during the term of this Agreement
regarding the license.
12. 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.
13. Governing Law and Venue. This Agreement shall be governed by the laws of the
State of California. Venue shall be in Orange County.
14. 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.
15. 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.
16. Assignment or Transfer.
16.1 . 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.
16.2. 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
9
ATTACHMENT 3, PAGE 9 OF 13
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 16.1 (No Assignment without the City's Consent).
17. No Relocation Benefits. This Agreement is not intended to convey a property
interest but to permit the Licensee to use the property as provided for herein. The
Licensee acknowledges the rights granted by State and/or Federal Relocation
Assistance Laws and regulations and, notwithstanding any other provision of this
Agreement, expressly waives all such present and future rights, if any, to which
the Licensee might otherwise be entitled from the City with regard to this
Agreement and the business operated on the property. The Licensee shall not be
entitled to relocation assistance, relocation benefits, or compensation for loss of
goodwill upon the termination of this Agreement.
18. Construction, References, and Captions.
18.1. 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.
18. 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.
18.3. Calendar Days. Any term referencing time, days, or period for
performance shall be deemed calendar days and not work days.
18.4. 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.
18.5. 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
19. 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.
20. 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
I0
ATTACHMENT 3, PAGE 10 OF 13
addresses listed below, but each Party may change the address by written notice
in accordance with this Section 20 (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 Licensee:
City of San Juan Capistrano Evan Marks, Executive Director
32400 Paseo Adelanto The Ecology Center
San Juan Capistrano, CA 92675 32701 Alipaz Street
Attn: City Manager San Juan Capistrano, CA 92675
21 . Entire Agreement and Severability.
21.1 . 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.
21 .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.
22. Binding Effect.
22.1 . 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.
22.2. Successors and Assigns. This Agreement shall be binding on the
successors and assigns of the Parties.
22.3. Not Authorization to Assign. This Section 22 (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 16
Assignment or Transfer).
Signatures on next page.
11
ATTACHMENT 3, PAGE 11 OF 13
SIGNATURE PAGE TO LICENSE AGREEMENT
LICENSE AGREEMENT
BY AND BETWEEN THE CITY OF SAN JUAN CAPISTRANO
AND ECOCENTER, INC., DBA THE ECOLOGY CENTER FOR THE
PROPERTY LOCATED AT 32681 ALIPAZ STREET, SAN JUAN CAPISTRANO
In witness thereof, the Parties here to have executed this Agreement
City of San Juan Capistrano Ecocenter, Inc.
A California municipal corporation
By.
C -
By.
AMIG EVAN MARKS,
ity Mana er Executive Director
ATTEST'
MC MO" r ,
City Clerk
APPROVED AS TO FORM:
By:
JEF AgER
City Attorney
12
ATTACHMENT 3, PAGE 12 OF 13
EXHIBIT "A"
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ATTACHMENT 3, PAGE 13 OF 13
61147.80007\40783575.1
1
LICENSE AGREEMENT
BY AND BETWEEN THE CITY OF SAN JUAN CAPISTRANO
AND ECOCENTER, INC., DBA THE ECOLOGY CENTER FOR THE PROPERTY
LOCATED AT 32701 ALIPAZ STREET, SAN JUAN CAPISTRANO
PARTIES AND DATE
This License Agreement (“Agreement”) is entered into as of this ___ day of ___________,
2022 (“Effective Date”) by and between the City of San Juan Capistrano, a California
municipal corporation (the “City”) and Ecocenter, Inc., dba The Ecology Center, a
California nonprofit public benefit corporation (the “Licensee”). City and Licensee are
sometimes hereinafter individually referred to as “Party” and hereinafter collectively
referred to as the “Parties.”
RECITALS
A.Licensee is a nonprofit organization whose mission is to provide creative solutions
for thriving on planet earth. Licensee believes everyone should have access to
the tools, knowledge, and skills that promote healthy communities and an
abundant future for all.
B.City is the owner of a 28.225 acre farm in the City of San Juan Capistrano,
California, located at 32701 Alipaz Street; and
C.Licensee desires to conduct farming operations and environmental education and
related uses on approximately 27.475 acres of the property in and around the Joel
Congdon House (“House”), with 0.50 acres set aside for an existing access road.
D.Licensee has farming and environmental education expertise and experience and
desires to manage the maintenance and operations of the agricultural activities on
the property.
E.This Agreement supersedes and replaces in their entirety that certain License
Agreement dated May 4, 2016 and that certain License Agreement dated August
21, 2018 (together the “Prior Licenses”).
TERMS
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:
1.Grant of License.
1.1. Scope. The City grants to Licensee a license to manage and maintain the
House and to operate a fruit and vegetable farm on 27.475 acres of the
property located at 32701 Alipaz Street, San Juan Capistrano (herein after
“License Area”) as described below:
1.1.1. The License Area is specifically depicted in the Site Plan attached
hereto as Exhibit “A” and is incorporated hereby this reference.
ATTACHMENT 4, PAGE 1 OF 17
61147.80007\40783575.1
2
1.1.2. The House is subject to this Agreement.
1.1.3. All crops harvested on the License Area during the term of this
Agreement shall be the sole property of Licensee.
1.1.4. City makes no warranty of the suitability of the License Area for the
growing of crops.
1.2. City Right to Modify. City shall have the right, at the City’s sole and absolute
discretion, to reduce the License Area upon thirty (30) days’ advance written
notice to Licensee should the City determine that a Skatepark and Multi-use
Trail Project should be constructed on the License Area. Licensee
acknowledges and agrees that modification of the License Area to
accommodate the Skatepark and Multi-use Trail Project, shall not reduce or
permit Licensee to renegotiate the License Fee set forth in Section 3, below.
The City’s right to modify the License Area shall be for the exclusive
purpose of a potential Skatepark and Multi-use Trail Project.
2. Term. This Agreement shall commence on _________________, 2022
(“Commencement Date”) and shall be effective for twenty (20) years (“Initial
Term”), except as otherwise provided in this Agreement. This Agreement may be
extended for two (2) additional ten (10) year terms, upon the written request of the
Licensee. Such notice of the extension shall be submitted to the City in writing no
less than sixty (60) nor more than ninety (90) days before the expiration of the
Term.
3. License Fees.
3.1. License Fees – Initial Term. Licensee agrees to annually pay the license
fees to City as follows:
License Years License Fee
1-5 $125,000.00
6-10 $150,000.00
11-15 $175,000.00
16-20 $200,000.00
3.2. License Fees – Option Terms. Should Licensee exercise one or more of
the options to extend the term of this Agreement as outlined in Section 2 of
this Agreement, then Licensee shall pay annually the license fees to the
City as follows:
License Years License Fee
21-30 $225,000.00
31-40 $250,000.00
3.3. Payment of License Fee. The initial payment of the annual License fee shall
be due within five (5) working days of the Commencement Date. Each
ATTACHMENT 4, PAGE 2 OF 17
61147.80007\40783575.1
3
subsequent payment of the license fee shall be due annually on each
anniversary of the Commencement Date.
3.4. Intensification of Use – Fee Increase. In the event Licensee expands the
approved land uses or intensifies its use of the License Area pursuant to
Section 3.5, below, City shall have the right, upon advance notice to
Licensee, to increase the License fees payable by Licensee to City
hereunder.
3.5. Intensification of Use – Required Approval. Licensee shall not intensify its
use of the License Area beyond what is existing at the time of this License
Agreement or what is allowed in the approved CUP and Specific Plan 85-
01 without first seeking and obtaining all necessary permits or approvals
from the City for the intensification of land uses, including compliance with
the California Environmental Quality Act.
4. Licensee obligations.
4.1. Compliance with Laws. Licensee shall comply with all applicable laws,
ordinances, codes and regulations of federal, state and local government.
4.2. Operation of Farm. Licensee shall be responsible for the supervision and
management of every aspect of running a farming operation of produce for
human consumption on the License Area in a business-like manner.
Supervision and maintenance obligations shall be performed at no cost to
the City, and include but are not limited to:
4.2.1. The employment, supervision and direction of all employees
engaged in the farming operation.
4.2.2. Providing for the maintenance of all equipment and supervising its
use in a safe and prudent manner.
4.2.3. Soil preparation, planting, fertilizing, irrigating, pesticide and
herbicide applications, and the harvesting of all crops.
4.2.4. The marketing and sale of crops.
4.2.5. Maintenance of records and accounting for all revenues and
expenditures, including employee payroll and related records.
4.2.6. Purchasing of all seeds, plants, fertilizers, herbicides, pesticides, and
other materials and supplies, such as boxes and packaging
materials, required for marketing and sale of the crops.
4.2.7. All operations shall be performed in a competent manner, consistent
with the standards of the industry and in accordance with all
applicable federal, state and local regulations, including the City’s
Municipal Code.
ATTACHMENT 4, PAGE 3 OF 17
61147.80007\40783575.1
4
4.2.8. Licensee shall farm the License Area in a manner that protects the
soil in accordance with sound agricultural practices commensurate
with the custom and practice within Orange County, California.
Should Licensee desire to implement any unique agricultural
practices, the Licensee shall seek written approval from the City in
advance of implementing the unique agricultural practices.
4.2.9. Licensee shall not plant or cultivate, or permit to be planted or
cultivated, Cannabis otherwise known as Marijuana (“Marijuana”).
4.3. Joel Congdon House
4.3.1. Maintenance, Repair, and Custodial Responsibilities: Licensee shall
be responsible for, but is not limited to, the following items:
4.3.1.1. Interior maintenance and janitorial functions including
solid waste and recycling disposal;
4.3.1.2. Appliance repair and replacement;
4.3.1.3. Maintenance of the heating/cooling system, smoke
detectors and interior plumbing, including repair or
replacement of deteriorated equipment/fixtures due to aging;
4.3.1.4. Care and maintenance of interior flooring, walls,
ceilings, including painting/wallpaper, and built-ins. Repair or
like-for-like replacement of materials shall be in compliance
with the Secretary of the Interior's Standards for Treatment of
Historic Properties due to ordinary wear and tear/aging;
4.3.1.5. Repair and maintenance of interior furnishings;
4.3.1.6. Repair and maintenance of interior and exterior light
fixtures, including replacement of bulbs and like-for-like
replacement of fixtures due to aging or malfunction;
4.3.1.7. Exterior grounds maintenance and repair, including
ensuring adequate drainage to prevent deterioration of
historic building foundations; irrigation; utility laterals;
landscape (except historic tree trimming), parking and drive
aisles; and hardscape in compliance with the Secretary of the
Interior's Standards for Treatment of Historic Properties;
4.3.1.8. Pest Control;
4.3.1.9. Exterior building(s) upkeep and minor repair, including
minor wall, window and door repair; exterior painting of the
House, outbuilding, and water tower per Secretary of the
Interior's Standards for Treatment of Historic Properties;
ATTACHMENT 4, PAGE 4 OF 17
61147.80007\40783575.1
5
4.3.1.10. House, outbuilding, water tower roof shingle
repair/replacement and exterior character-defining feature
replacement, repair, maintenance as determined by the City
Manager or designee;
4.3.1.11. No alterations to the House or any other facility located
on the License Area shall occur without prior written approval
by the City;
4.3.1.12. Repair or replacement of House electrical system due
to aging of structure consistent with the Secretary of the
Interior's Standards for Treatment of Historic Properties;
4.3.1.13. Periodic trimming and maintenance as determined
necessary by the City for the three pre-existing historic trees
(palm and citrus southeast of, and palm in front of the House);
4.3.1.14. Interior repair and maintenance of water tower and it's
components if proposed to be used for program, office or any
related uses by Licensee with prior City approval;
4.3.1.15. Maintenance (sanitation pipe cleaning and clog
removal, minor leaks) of water/sewer mains and storm drains
external to the site that serves the License Area.
4.3.2. Additional Conditions of Operation. The House shall be used for
environmental education and museum functions in accordance with
the provisions of this Agreement and CUP 15-006 including the
specific conditions therein, as amended from time to time and
incorporated herein by reference.
4.3.2.1. Any holes or other defacement of the walls, roof or
ceiling of the House shall be repaired and restored back to
original condition by Licensee in accordance with the
Secretary of the Interior's Standards for Treatment of Historic
Properties. No structural or other changes of any kind shall be
made to the House or any other improvement on the License
Area unless prior written approval is obtained from the City.
The House floor shall be maintained in its original condition,
with no permanent alterations; only temporary coverings (e.g.,
rugs) that do not need to be affixed to the floor are allowed.
4.3.2.2. Licensee shall ensure that the House remains secure
at all times.
4.3.2.3. Licensee shall, at all times, ensure that the operation
and use of the License Area does not adversely affect the
public health, safety and welfare.
ATTACHMENT 4, PAGE 5 OF 17
61147.80007\40783575.1
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4.3.2.4. Licensee shall submit a performance report annually
on or before March 31st to the City Manager per City Council
Policy 014 including the following:
(i) Number of visitors receiving benefits from activities
including tours, meetings, and classes.
(ii) The city of residence of citizens receiving benefits.
(iii) Proof of the organization's continued nonprofit status.
(iv) Disclosure of all activities being conducted on the
License Area, including tours, meetings, and classes.
(v) Description of maintenance of Property and
information on the total revenue received by the
Licensee in conjunction with the operation of the
License Area under this Agreement during the
reporting period and disclosure of the sources of that
revenue
4.4. Maintenance of Property. Licensee shall be responsible for the
management and maintenance of all on-site improvements, at no cost to
the City.
4.4.1. Caretaker’s residence is subject to City’s approval based on all
applicable provisions of Specific Plan 85-01 . No more than one
caretaker unit shall be installed/constructed on the License Area .
4.4.2. Licensee agrees to accept the License Area in its present condition
as of the date of execution of this Agreement. Licensee may use the
buildings and existing structures on the License Area for Licensee’s
use in farming operations.
4.4.3. Licensee shall use reasonable care to control all weeds, noxious or
otherwise, growing on the License Area, including those growing in
drainage ditches.
4.4.4. Licensee shall reasonably control all rodents, insects, and other
pests on the License Area.
4.4.5. Licensee shall maintain all fences, gates, ditches, and borders of the
License Area in good condition and repair.
4.4.6. Licensee shall maintain, at Licensee’s expense, the License Area,
including all existing structures and all equipment owned and
furnished by Licensee, in a reasonable state of repair and working
order.
ATTACHMENT 4, PAGE 6 OF 17
61147.80007\40783575.1
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4.4.6.1. Licensee may plant fruit trees on the License Area and
shall be responsible for properly maintaining all trees
including removal of all tree debris.
4.4.6.2. Licensee understands that the shrubs on the Premises
block the wind, limit road dust, and reduce the amount of
debris entering the License Area. Licensee shall sufficiently
maintain the shrubs in order to keep harmful elements away
from the crops.
4.5. Retail Stand.
4.5.1. The existing retail stand may be utilized by Licensee solely for retail
sales of agricultural products and related agricultural products that
support the ecological mission of Licensee. Related merchandise
may be allowed; however, sales shall be primarily agricultural
products and City reserves the right to prohibit the sale of certain
merchandise.
4.5.2. Licensee shall not sell Marijuana, Marijuana products or Marijuana
accessories as those terms are defined in the San Juan Capistrano
Municipal Code that may be amended from time to time.
4.5.3. Licensee is also permitted to allow members of the public to pick their
own produce. Sufficient parking on site shall be provided for the
retail stand.
4.5.4. Any expansion, regardless of size or scope, is prohibited under this
Agreement unless Licensee obtains written approval of the City.
4.6. Improvements: Licensee shall receive written approval from City prior to
making any improvements or alterations to the License Area and/or
facilities. If a permit is required, the Licensee shall submit to the
Development Services Department, in writing, any desired
changes/improvements to the License Area and/or facilities. It is the
responsibility of Licensee to determine if a permit(s) is required. All required
permits, including environmental review, must be obtained prior to
commencing any improvement work.
4.6.1. All improvements undertaken by Licensee shall be the sole financial
responsibility of Licensee unless Licensee and City enter into a cost
sharing agreement.
4.7. Domestic and Irrigation Water, Electrical, Gas, Telephone,
Television/Cable/ Wireless Services. Licensee shall be solely responsible
for any and all expenses related to any and all utilities, including but not
limited to domestic and irrigation water, electrical, gas, telephone,
television/cable/wireless services, for the License Area. The License Area
ATTACHMENT 4, PAGE 7 OF 17
61147.80007\40783575.1
8
shall be repaired by Licensee if any damage is done to the License Area
due to the installation or removal of the utilities and services.
4.8. Access Road. The access road as shown in Exhibit “A” attached hereto
and incorporated herein shall be accessible for use by the representatives
of the wireless phone company to gain access to the antenna site located
on the sports park field adjacent to the License Area. In addition, a gate
and corresponding locks shall be added and maintained by Licensee, at no
cost to City, consistent with Section 4.4.5 above.
4.9. Responsible Party. Licensee shall, at all times, keep City advised of the
name, address, and telephone number of the person(s) responsible for the
operation of the License Area.
4.10. Personal Property. On or before the termination or expiration of this
Agreement, the Licensee at their sole expense shall remove all of
Licensee’s personal property from the License Area and shall surrender
possession of the License Area to the City in good order and repair, in
substantially the same condition at the time of entry into this Agreement, to
the satisfaction of the City. Licensee shall leave Property free and clear of
all rubbish and debris. Licensee shall not remove any fruit trees or
approved improvements at the termination of the Agreement.
4.11. Prevailing Wages. Licensee acknowledges that City has made no
representation, express or implied, to Licensee or any person associated
with Licensee regarding whether or not laborers employed relative to the
construction and installation of any improvements to City-owned property
must be paid the prevailing per diem wage rate for their labor classification,
as determined by the State of California, pursuant to California Labor Code
section 1720 et seq. Licensee understands and agrees that Licensee shall
assume the responsibility and be solely responsible for determining whether
or not laborers employed relative to any construction on the Property must
be paid the prevailing per diem wage rate for their labor classification, as
determined by the State of California, pursuant to Labor Code section 1720
et seq. Except in the case of City’s or its employees’, council members’,
officers’, agents’, and/or contractors’ gross negligence or intentional
misconduct, Licensee shall additionally indemnify City, in accordance with
the provisions of Section 8 below, against any claims pursuant to California
Labor Code section 1781 arising from the date of mutual execution of this
Agreement or the construction or installation by Licensee of any
improvements on the Property in accordance with this Agreement.
Notwithstanding any other provision of this Agreement, City shall have no
duty to monitor or ensure the compliance of Licensee with any State of
California labor laws, including without limitation, prevailing wage laws.
4.12. Hazardous Materials & Underground Storage Tanks Not Permitted.
Licensee covenants that it will not handle or store Hazardous Materials on
the License Area, and that it will not install or use any underground storage
tanks on or about the License Area. As used in this Agreement, “Hazardous
ATTACHMENT 4, PAGE 8 OF 17
61147.80007\40783575.1
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Materials” means any chemical, substance or material which is now or
becomes in the future listed, defined or regulated in any manner by any
Environmental Law based upon, directly or indirectly, its properties or
effects. As used in this preceding sentence, “Environmental Law” means
any federal, state or local environmental, health and/or safety-related laws,
regulations, standards, decisions of the courts, permits or permit conditions,
currently existing or as amended or adopted in the future which are or
become applicable to the Licensee or the Property.
5. Skatepark, Multi-Use Trail, and Perimeter Fence Project. As the City considers
options for an approximate 1-acre skatepark location and an approximate 35,000
SF multi-use trail, if the City determines that a portion of the License Area is the
preferred location for said improvements, Licensee shall cooperate with the City,
and City shall include Licensee, during the design, environmental review, and
construction of a Skatepark, Multi-Use Trail, and Perimeter Fence Project(s).
Licensee shall not be liable for any costs associated with the Skatepark and Trail.
Licensee hereby agrees that the City (and its contractors) shall have access to the
Property as necessary for the construction of the Skatepark and Trail. Additionally,
the City will construct perimeter fencing around the entirety of the License Area in
conjunction with the Skatepark and Trail Project, should the project be approved
in this location. Licensee will fund or reimburse City for those portions of perimeter
fencing that include access gates and/or doors to the Property. If a Skatepark
and/or Trail is not constructed on the License Area, the perimeter fencing will be a
standalone City project with the Licensee funding or reimbursing the City for those
portions of perimeter fencing that include access gates and/or doors to the
property.
6. Event Parking. Licensee shall provide, on-site vehicle parking for all workshops,
classes and events held at the License Area. For events that exceed the onsite
parking capacity, Licensee shall secure written approval from the City Engineer for
parking on the west side of Alipaz Street (from Via Positiva to Camino del Avion)
and Camino del Avion..
7. Reservations to City
7.1. Inspection Rights. City reserves the right to enter the License Area at any
reasonable time for the purpose of inspection. Any rights herein reserved
shall, moreover, not be exercised in any manner which will unreasonably
interfere with Licensee’s use and occupancy of the License Area for the
purposes stated in this Agreement.
7.2. Maintenance. City also reserves the right to enter the License Area for
purposes of maintenance, which may include the need for Licensee to
vacate Property for a reasonable temporary period to be specified at that
time, with provision of ninety (90) days’ notice, except for repairs deemed
to be for emergency/public safety reasons no notice shall be required.
7.3. Fourth of July Celebration. City shall have use and access to the License
Area at no cost to the City in order to host the fireworks celebration for the
ATTACHMENT 4, PAGE 9 OF 17
61147.80007\40783575.1
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community from the License Area each July 4th on an annual basis
throughout the term of this Agreement. This access shall include, but is not
limited to, all set up, coordination, and take-down activities necessary for
the annual fireworks display. City shall clean up and return the License
Area to its ordinary state at the conclusion of such event.
8. Indemnification.
8.1. Indemnification of City by Licensee. The Licensee shall defend (with
counsel approved by City), indemnify and hold the City, its officials, officers,
employees, and agents (the “City 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. Furthermore, Licensee shall defend (with counsel approved by
City), indemnify and hold the City Indemnified Parties free and harmless
from any and all claims brought to challenge this Agreement under all laws
including but not limited to the California Environmental Quality Act and the
Planning and Zoning Law.
8.2. Indemnification of Licensee by City. The City shall defend (with counsel
approved by Licensee), indemnify and hold the Licensee, its officials,
officers, employees, and agents (the “Licensee 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 negligent acts, omissions, and/or operations on the License
Area by the City (including, but not limited to, any activities conducted
pursuant to Section 7) by City’s officials, officers, personnel, employees,
contractors, and/or subcontractors as well as its contractors’ and/or
subcontractors’ officials, officers, employees, and agents.
8.3. Scope of Section. The Parties’ obligations under this Section 8
(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.
8.4. 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 8 (Indemnification) because of the City’s acceptance of any
security deposits or insurance policies.
8.5. Survival. The indemnification provision in this Section 8 (Indemnification)
shall survive the termination or expiration of this Agreement.
ATTACHMENT 4, PAGE 10 OF 17
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9. Insurance
9.1. On or before beginning any of the services or work called for by any term of
this Agreement, Licensee, at its own cost and expense, shall carry, maintain
for the duration of the Agreement, and provide proof thereof that is
acceptable to City, the insurance specified below with insurers and under
forms of insurance satisfactory in all respects to the City. Insurance required
herein shall be provided by Admitted Insurers in good standing with the
State of California and having a minimum Best’s Guide Rating of A-Class
VII or better.
9.1.1. Throughout the term of this Agreement, Licensee at Licensee’s sole
cost and expense, shall maintain in full force and effect the following
insurance against liabilities arising out of Licensee’s activities on the
License Area:
9.1.1.1. Comprehensive General Liability coverage in an
amount not less than two million dollars ($2,000,000), per
occurrence combined single limit coverage, and three million
dollars ($3,000,000) aggregate;
9.1.1.2. Worker’s Compensation in an amount not less than
one million ($1,000,000) per accident and to include a Waiver
of Subrogation;
9.1.1.3. Automobile Insurance covering all owned, non-owned
and hired vehicles with a limit of one million dollars
($1,000,000) each accident for bodily injury and property
damage; and,
9.1.1.4. The insurance coverage required herein shall be
primary insurance as respects the City, its officials,
employees, and volunteers. Any insurance or self-insurance
maintained by the City, its officials, employees, or volunteers
shall be in excess of the insurance required herein and shall
not contribute with it; and
9.1.1.5. The City, its officials, employees, and volunteers are to
be covered as additional insureds, and the coverage shall
contain no special limitations on the scope of the protection
afforded to the City, its officials, employees, or volunteers.
9.1.2. Proof of Insurance Requirements/Endorsement: Licensee shall
submit the insurance certificates, including the deductible or self-
retention amount, and an additional insured endorsement naming
City, its officers, employees, agents, and volunteers as additional
insured as respects each of the following: liability arising out of
activities performed by or on behalf of Licensee, including the
insured’s general supervision of Licensee; products and completed
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operations of Licensee; or premises owned, occupied or used by
Licensee. The coverage shall contain no special limitations on the
scope of protection afforded City, its officers, employees, agents, or
volunteers.
9.1.3. Notice of Cancellation/Termination of Insurance: The above
policy/policies shall not terminate, nor shall they be canceled, nor the
coverages reduced, until after thirty (30) days' written notice is given
to City, except that ten (10) days' notice shall be given if there is a
cancellation due to failure to pay a premium.
9.2. 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.
10. Termination. This Agreement may be terminated upon the default of one of the
Parties if such default is not cured within ninety (90) days following written notice
of such default from non-defaulting Party. In the event of a dispute between the
Parties, City and Licensee shall meet and confer regarding the matter. If the
dispute cannot be resolved through a meet and confer session, then the
Agreement may be terminated by the non-defaulting Party
10.1. In the event Licensee files for bankruptcy or is found to be in a state of
insolvency, then City shall have the right to terminate this Agreement and
all further rights and obligations hereunder by ten (10) days’ written notice
to Licensee. Upon the expiration of the ten (10) days’ notice this Agreement
shall automatically terminate.
11. Possessory Interest Tax Notice. Licensee hereby recognizes and understands
that this Agreement may create a possessory interest subject to property taxation,
and that Licensee may be subject to the payment of property taxes levied on such
interest. Any such imposition of a possessory interest tax shall be a tax liability of
Licensee solely, notwithstanding any provision of this Agreement to the contrary.
Licensee shall promptly notify City of any possessory interest tax imposed against
Licensee’s interest in the License Area, and shall provide City with a copy of any
bill or assessment imposing the possessory interest tax. Licensee shall remit to
the taxing agency the amount of the possessory interest tax imposed against
Licensee, and shall notify City in writing of the payment. Licensee acknowledges
that City, in accordance with California Revenue and Taxation Code Section 107.6,
has given notice to Licensee that Licensee may be subject to property taxation,
and that Licensee may be subject to the payment of property taxes levied on the
possessory interest created by this Agreement and license. Licensee shall be fully
responsible for the payment of all possessory interest taxes levied and/or
assessed during the term of this Agreement regarding the license.
12. 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
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action or proceeding by the prevailing Party. If any legal action or proceeding
arising out of or relating to this Agreement is brought by a third party, the Parties
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 in accordance with the Indemnification provisions of
Section 8, above.
13. Governing Law and Venue. This Agreement shall be governed by the laws of the
State of California. Venue shall be in Orange County.
14. 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.
15. 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.
16. Assignment or Transfer.
16.1. 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, hypothecate,
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.
16.2. 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 16.1 (No Assignment without the City’s Consent).
17. No Relocation Benefits. This Agreement is not intended to convey a property
interest but to permit the Licensee to use the License Area as provided for herein.
The Licensee acknowledges the rights granted by State and/or Federal Relocation
Assistance Laws and regulations and, notwithstanding any other provision of this
Agreement, expressly waives all such present and future rights, if any, to which
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the Licensee might otherwise be entitled from the City with regard to this
Agreement and the business operated on the License Area. The Licensee shall
not be entitled to relocation assistance, relocation benefits, or compensation for
loss of goodwill upon the termination of this Agreement.
18. Construction, References, and Captions.
18.1. Simple Construction. The Parties agree that , the language of this
Agreement shall be construed simply, according to its fair meaning, and not
strictly for or against any Party.
18.2. 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.
18.3. Calendar Days. Any term referencing time, days, or period for performance
shall be deemed calendar days and not work days.
18.4. 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
19. 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 License Area 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.
20. 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 20 (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 Licensee:
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Attn: City Manager
Evan Marks, Executive Director
The Ecology Center
32701 Alipaz Street
San Juan Capistrano, CA 92675
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21. Entire Agreement and Severability.
21.1. 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.
21.2. 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.
22. Binding Effect.
22.1. 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.
22.2. Successors and Assigns. This Agreement shall be binding on the
successors and assigns of the Parties.
22.3. Not Authorization to Assign. This Section 22 (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 16 (Assignment or
Transfer).
Signatures on next page.
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SIGNATURE PAGE TO LICENSE AGREEMENT
LICENSE AGREEMENT
BY AND BETWEEN THE CITY OF SAN JUAN CAPISTRANO
AND ECOCENTER, INC., DBA THE ECOLOGY CENTER FOR THE
PROPERTY LOCATED AT 32701 ALIPAZ STREET, SAN JUAN CAPISTRANO
In witness thereof, the Parties here to have executed this Agreement:
City of San Juan Capistrano
A California municipal corporation
Ecocenter, Inc.
By:
________________________________
_
By:
________________________________
_
BENJAMIN SIEGEL
City Manager
EVAN MARKS,
Executive Director
ATTEST:
By:
________________________________
_
APPROVED AS TO FORM:
By:
________________________________
_
JEFF BALLINGER,
City Attorney
ATTACHMENT 4, PAGE 16 OF 17
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EXHIBIT “A”
SITE PLAN
ATTACHMENT 4, PAGE 17 OF 17