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16-1201_MISSION VOLKSWAGEN, INC._Assignment of License AgreementASSIGNMENT OF LICENSE AGREEMENT AND CONSENT TO ASSIGNMENT: NON-EXCLUSIVE LICENSE FOR TEMPORARY VEHICLE STORAGE THIS ASSIGNMENT OF LICENSE AGREEMENT AND CONSENT TO ASSIGNMENT ("Assignment") is made as of this 1 day of December, 2016 ("Effective Date"), by and among the City of San Juan Capistrano, a California municipal corporation ("City"), Imperlo Motors, LLC dba Imperio Nissan of San Juan Capistrano ("Nissan Assignor"), Komex Motors, LLC dba Imperio KIA of San Juan Capistrano ("Kia Assignor" and, together with the Nissan Assignor, the "Assignors") and Mission Volkswagen, Inc. dba Capistrano VW and Capistrano Mazda ("Assignee"). City, Assignors and Assignee may be individually referred to herein as a "party," and collectively referred to as the "parties RECITALS A. City and Assignors have entered into an License Agreement for temporary vehicle storage on the Lower Rosan Ranch property (APN 121-240-73; 121-253- 15) dated June 16, 2015 ("License Agreement"). A copy of the License Agreement is attached hereto as Exhibit A and incorporated herein by reference. B. On November 15, 2016, the City Council modified Section 13 of the License Agreement to allow assignment of the License Agreement with the consent of the City Manager. C. Assignors now desire to assign to Assignee all of their rights, duties, and obligations in, to, and under the Agreement ("Assignment"). D. Assignors and Assignee desire to obtain City's consent to the Assignment and City is willing to consent to the Assignment on the following terns and conditions. AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants contained In this Assignment, and for valuable consideration, the receipt and sufficiency of which are acknowledged by the parties, the parties agree as follows. I. Assignment. Assignors hereby assign, sell, transfer, convey and deliver to Assignee all of Assignors' rights, title and Interest in and to the License Agreement as of the Effective Date. 2. Acceptance by Assignee. Assignee hereby accepts such assignment as of the Effective Date. 3. Acceptance by City. Pursuant to the November 15, 2016 action of the City Council to modify Section 13 of the License Agreement to allow the Assignment, City 61147.00310129381882.1 hereby consents to Assignors' assignment of all Assignors' rights, Title and interest under the License Agreement to Assignee as of the Effective Date. 4. Assumption. Assignee hereby assumes and agrees to perform all the terms, covenants and conditions imposed upon Assignors under the License Agreement occurring or arising on or after the Effective Date. 5. License Modifications. The License Agreement has not been modified, changed, altered or amended in any respect, except for the modification of Section 13 approved by the City Council on November 15, 2016, as described above. 6. City's Default. As of the Effective Date, City is not in default in the performance of any of the terms and conditions of the License Agreement and has not committed any breach of the License Agreement_ 7. Pending Actions. There are no actions, whether voluntary or otherwise, pending against the Assignors or Assignee under the bankruptcy laws of the United States or any similar debtor protection laws of any state thereof. 8. Assignors to Remain Liable. Assignors shall remain obligated to City for the remainder of the term of the License Agreement, pursuant to Section 1 of the License Agreement, for the full performance of all covenants, conditions, obligations and duties required of Assignors under the License Agreement and shall not be relieved of any such performance thereunder as a result of this Assignment. 9. Waiver. Nothing in this Assignment shall be deemed to waive or modify any of the provisions- of the License Agreement. 10. Counterparts. This Assignment may be executed in counterparts, each of which shall be deemed an original, but all of which together, shall constitute one and the same instrument. 11. Binding Effect. This Assignment shall be binding upon and inure to the benefit of the successors, assignees, personal representatives, heirs and legatees of all the respective parties hereto. 12. Interpretation. This Assignment shall be governed by, interpreted under, and construed and enforceable in accordance with, the laws of the State of California. [SIGNATURES ON THE FOLLOWING PAGE] 61147.003101293 81682.1 IN WITNESS WHEREOF, City, Assignors and Assignee have executed and delivered this Assignment as of the Effective Date. CITY: City of San Juan Capistrano, a California municipal corporation ,,-�"VoKbty Manager ASSIGNEE: Mission Volkswagen, Inc. dba Capistrano VW and Capistrano Mazda M�a<� M 11, e-5 � 9QAArD Onv'OP 11-F: APPROVED AS TO FORM: Jeff B (linger, City Attrney el 147.00310%29381602.1 ASSIGNORS: Impedo Motors, LLC dba lmpedo Nissan of San Juan Capistrano Komex Motors, LLC dba Imperio KIA of San Juan Capistrano ASSIGNMENT OF LICENSE AGREEMENT AND CONSENT TO ASSIGNMENT: NON-EXCLUSIVE LICENSE FOR TEMPORARY VEHICLE STORAGE THIS ASSIGNMENT OF LICENSE AGREEMENT AND CONSENT TO ASSIGNMENT ("Assignment") is made as of this 1 day of December, 2016 ("Effective Date"), by and among the City of San Juan Capistrano, a California municipal corporation ("City"), Imperio Motors, LLC dba Imperio Nissan of San Juan Capistrano ("Nissan Assignor"), Komex Motors, LLC dba Imperio KIA of San Juan Capistrano ("Kia Assignor" and, together with the Nissan Assignor, the "Assignors") and Mission Volkswagen, Inc. dba Capistrano VW and/Capistrano Mazda ("Assignee"). City, Assignors and Assignee may be individually referred to herein as a "party," and collectively referred to as the "parties." RECITALS A. City and Assignors have entered into an License Agreement for temporary vehicle storage on the Lower Rosan Ranch property (APN 121-240-73; 121-253- 15) dated June 16, 2015 ("License Agreement"). A copy of the License Agreement is attached hereto as Exhibit A and incorporated herein by reference. B. On November 15, 2016, the City Council modified Section 13 of the License Agreement to allow assignment of the License Agreement with the consent of the City Manager. C. Assignors now desire to assign to Assignee all of their rights, duties, and obligations in, to, and under the Agreement ("Assignment'). D. Assignors and Assignee desire to obtain City's consent to the Assignment and City is willing to consent to the Assignment on the following terms and conditions. AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants contained in this Assignment, and for valuable consideration, the receipt and sufficiency of which are acknowledged by the parties, the parties agree as follows. 1. Assignment. Assignors hereby assign, sell, transfer, convey and deliver to Assignee all of Assignors' rights, title and interest in and to the License Agreement as of the Effective Date. 2. Acceptance by Assignee. Assignee hereby accepts such assignment as of the Effective Date. 3. Acceptance by City. Pursuant to the November 15, 2016 action of the City Council to modify Section 13 of the License Agreement to allow the Assignment, City 61147.00310129381682.1 hereby consents to Assignors' assignment of all Assignors' rights, title and interest under the License Agreement to Assignee as of the Effective Date. 4. Assumption. Assignee hereby assumes and agrees to perform all the terms, covenants and conditions imposed upon Assignors under the License Agreement occurring or arising on or after the Effective Date. 5. License Modifications. The License Agreement has not been modified, changed, altered or amended in any respect, except for the modification of Section 13 approved by the City Council on November 15, 2016, as described above. 6. City's Default. As of the Effective Date, City is not in default in the performance of any of the terms and conditions of the License Agreement and has not committed any breach of the License Agreement. 7. Pending Actions. There are no actions, whether voluntary or otherwise, pending against the Assignors or Assignee under the bankruptcy laws of the United States or any similar debtor protection laws of any state thereof. 8. Assignors to Remain Liable. Assignors shall remain obligated to City for the remainder of the term of the License Agreement, pursuant to Section 1 of the License Agreement, for the full performance of all covenants, conditions, obligations and duties required of Assignors under the License Agreement and shall not be relieved of any such performance thereunder as a result of this Assignment. 9. Waiver. Nothing in this Assignment shall be deemed to waive or modify any of the provisions of the License Agreement. 10. Counterparts. This Assignment may be executed in counterparts, each of which shall be deemed an original, but all of which together, shall constitute one and the same instrument. 11. Bindina Effect. This Assignment shall be binding upon and inure to the benefit of the successors, assignees, personal representatives, heirs and legatees of all the respective parties hereto. 12. Interpretation. This Assignment shall be governed by, interpreted under, and construed and enforceable in accordance with, the laws of the State of California. [SIGNATURES ON THE FOLLOWING PAGE] 61147.00310129381682.1 IN WITNESS WHEREOF, City, Assignors and Assignee have executed and delivered this Assignment as of the Effective Bate. CITY: City of San Juan Capistrano, a California municipal corporation B j in y Manager ASSIGNEE: Mission Volkswagen, Inc. dba Capistrano VW and Capistrano Mazda ASSIGNORS: imperio Motors LLC dba Imperio�?Ssj1 of Komex Motors, LLC dba Imperio KIA of San Juan Capistrano APPROVED AS TO FORM: 0 417 /3 Jeff allinger, City Al&rney 81147.003 10129381882.1 M EXHIBIT A LICENSE AGREEMENT [Attached Behind This Page] 61147.0031=93816OZI LICENSE AGREEMENT FOR TEMPORARY VEHICLE STORAGE THIS LICENSE AGREEMENT ("Agreement") is made and entered into as of June , 2015, by and between the City of San Juan Capistrano, a California municipal corporation ("Licensor"), Imperio Motors, LLC dba Imperio Nissan of San Juan Capistrano, ("Nissan Licensee") and Komex Motors, LLC dba Imperio KIA of San Juan Capistrano ("Kia Licensee" and, together with the Nissan Licensee, the "Licensees"). The City and Licensees are sometimes referred to together herein as the "Parties." WITNESSETH WHEREAS, Licensor is the owner of certain unimproved real property located between the Orange County Transportation Authority railroad tracks and the Orange County flood control channel and north of Stonehill Drive in the City of San Juan Capistrano, County of Orange, State of California, commonly referred to as APN 121-240-73; 121-253-13, and 121-253-15, hereinafter, ("Lower Rosan Site"); and WHEREAS, Licensees have a need for a temporary storage yard for vehicle inventory; and WHEREAS, Licensees desire to use portions of the Lower Rosan Site and more particularly described in Exhibit "A" attached hereto and incorporated herein by reference ("Property"), for the temporary storage of inventory for the automobile dealerships operated by Licensees, as described in more detail in Section 1(d) below (referred to herein as the "Permitted Activities"); and WHEREAS, Licensor desires to grant Licensees permission to engage in said Permitted Activities upon the Property, subject to Licensees obtaining the Required Approvals described below; and NOW THEREFORE, in consideration of the mutual covenants and obligations of the parties herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: Section 1. Establishment of License Provisions. (a) Grant of License. On the terms and subject to the conditions set forth in this Agreement, Licensor hereby grants to Licensees and their representatives and agents a non-exclusive, revocable license to enter upon the Property for the sole purpose of conducting the "Permitted Activities" described in Section 1(d) below. This Agreement is intended to create a temporary license and shall not be deemed to grant or convey an easement, irrevocable license, lease or fee interest in the Licensor's Property. (b) Planning and Land Use Entitlements; Governmental Approvals as Condition Precedent. The use of the property by the Licensees for Permitted Activities pursuant to this Agreement is subject to Licensees obtaining a Temporary Use Permit and any other applicable land use permits required under the San Juan Capistrano Municipal Code (collectively, "City Approvals"), including compliance with the California Environmental Quality Act ("CEQA" ), and any other required approvals from federal and state regulatory agencies (together with the City Approvals and ATTACHMENT 1 - Page 1 of 8 CEQA compliance, the "Required Approvals"). Licensees shall be solely responsible for any costs associated with the obtaining of required permits and the City's compliance with CEQA. (c) Term of License Agreement. This Agreement shall take effect upon the date of approval first above written and shall terminate two (2) years thereafter, unless earlier terminated as provided in Sections 2(a) or 2(b) below. (d) Permitted Activities. Licensees are authorized to prepare the land to receive and store new vehicle inventory subject to securing all Required Approvals as noted above. Preparation of the site includes, but is not limited to, minor grading for earthen access ramp, creating a level useable 2 acre pad, and proper drainage. Temporary improvements include, but are not limited to, gravel base for inventory parking area and access ramp, security fencing and limited lighting, and minor directional signage for delivery personnel. On-going operational activities are limited to the transport, drop-off and pick-up of new vehicle inventories from 8:00 am to 8:00 pm Monday through Sundays and Federal Holidays. Large transport vehicle drop-off activity on-site shall be limited to the hours between 8:00 am to 5:30 pm Monday through Saturday only. No transport deliveries shall occur on Sundays or Holidays. Dealership preparation, wash down and/or detailing is not a permitted activity. The use is exclusively limited to the storage of new vehicle inventory; no other use, including storage of used vehicle inventory or storage of vehicles being held for repair or service, is permitted. (e) Consideration/Fee for License. The Licensees shall pay to Licensor a license fee totaling two thousand dollars ($2,000.00) per month from the effective date through November 30, 2015, from December 1, 2015 through May 31, 2016 Licensees shall pay to Licensor a license fee totaling three thousand dollars ($3,000.00) per month, and thereafter totaling three thousand five hundred dollars ($3,500.00) per month through the remaining term of the Agreement which shall be split equally between the Licensees as follows: Nissan Time period Licensee KIA — Licensee Total Effective Date through November 30, 2015 $1,000.00 $1,000.00 $2,000.00 December 1, 2015, through May 31, 2016 $1,500.00 $1,500.00 $3,000.00 June 1, 2016, through the end of the Agreement _ $1,750.00 $1,750.00 $3,500.00 Payment shall be made on the first day of each month. Licensees' failure to pay license fee by the 10th day of the month will result in a late charge of 10% of the late payment amount. License fee and other payments shall be paid by Licensees to Licensor at Licensor's notice address set forth herein. Section 2. Termination, Default, & Restoration of Land to Original Condition. (a) Termination Without Cause. This Agreement may be ternunated by Licensor without cause by giving ninety (90) days written notice to Licensees. Either of the Licensees may terminate its participation in this Agreement without cause by giving ninety (90) days written notice to Licensor. (b) Default and Cure Provisions: Termination For Cause. In addition to the rights described in Section 2(a), Licensor shall have the right to terminate this Agreement immediately upon Licensees' Default. "Default" means the failure of Licensees to perform or violation of any 2 ATTACHMENT 1 - Page 2 of 8 term, condition, covenant or agreement of this Agreement, and the continuation of such failure or violation for a period of ten (10) days after Licensor shall have given Licensees written notice specifying the same, or in the case of a situation in which the default cannot reasonably be cured within ten (10) days, if Licensees shall not promptly, within ten (10) days after receipt of such notice, commence to remedy the situation by a means that can reasonably be expected to remedy the situation within a reasonable period of time, not to exceed thirty (30) days from the notice of Default, and diligently pursue the same to completion. In the event of any Default by Licensees, including expiration of any applicable cure period, Licensor may terminate the Agreement and remove Licensees and their property from the Property by any lawful means available in law or equity. (c) Restoration of Land to Original Condition Upon License Termination. Upon termination of the Agreement, Licensees shall be responsible for removing all improvements the Licensees placed upon the land, unless Licensor elects in writing to accept some or all of said improvements. Any improvements accepted by Licensor will be at no cost to Licensor. Licensees shall promptly initiate and exercise due diligence in removing said improvements until all improvements have been removed, which shall be completed within not more than thirty (30) days following termination of this Agreement. (d) Effect of Termination. Termination of this Agreement shall in no way prejudice any of the rights and remedies available to Licensor at law or in equity, and Licensees acknowledge and agree that all of the obligations and responsibilities of Licensees under this Agreement shall continue and survive such termination. Section 3. Compliance with Laws. Licensees' rights hereunder shall be conditioned upon, and Licensees shall, at their sole cost and expense, comply with each and every federal, state and local law, regulation, standard, court decision, ordinance, rule, code, order, decree, directive, guideline, permit and permit condition, together with any declaration of covenants, conditions and restrictions that are recorded in any official or public records with respect to the Property or any portion thereof; each as currently existing and as amended, enacted, issued or adopted from time to time, that are applicable to the construction and use of the parking lot on the Property. Nothing herein shall be construed to give Licensees any approvals normally required under the City's ordinances or local regulations, including the City Approvals. Without limiting the generality of the foregoing, any approvals normally required for any lighting, grading, drainage, or other issues shall be processed by Licensees and City pursuant to City's normal procedures and the Municipal Code. Section 4. No Duty to Warn. Licensor has no duty to inspect the Property and no duty to warn Licensees or any person of any other latent or patent defect, condition or risk that might be incurred in entering the Property. Licensees have inspected or will inspect the Property and hereby accept the condition of the Property "AS IS." Licensees acknowledge that neither Licensor nor any employee, agent or representative of Licensor has made representations or warranties concerning the condition of the Property. All persons entering the Property under this Agreement do so at their own risk. ATTACHMENT 1 - Page 3 of 8 Section 5. Permits and Anurovals. Standard of Work. At its sole cost and expense, Licensees shall obtain all Required Approvals required in order to engage in the Permitted Activities. Licensees shall comply, and shall cause their agents and representatives to comply, with all laws, codes, rules, regulations and permits applicable to the Permitted Activities. All Permitted Activities shall be performed in accordance with the highest standards and practices in the industry. Section 6. Indemnification. Licensees shall indemnify, defend, protect and hold the City of San Juan Capistrano and its elected and appointed officials and employees, and any of their agents harmless from and against all claims, causes of action, damages, losses, liabilities, costs and expenses (including, without limitation, reasonable attorneys' and consultants' fees and costs) caused by or arising in connection with the Permitted Activities and the entry onto the Property by Licensees and/or their guests, invitees, agents, and representatives. Licensees' indemnification and defense obligations pursuant to the foregoing shall apply to, without limitation: (i) personal injury, property damage and nuisance; (ii) any liens, claims, demands, actions or suits arising from the Permitted Activities; and (iii) any costs of enforcement of any provision of this Agreement. Section 7. Liability for Damage. With respect to Licensees' rights under this Agreement, Licensees shall be responsible for any damage done to any person, or to the Property or any other property, caused by Licensees, their officers, directors, employees, agents, independent contractors, insurers, lenders, representatives, successors or permitted assigns of Licensees, and the other users. Section $. Insurance Coverage Required. Each Licensee shall maintain in effect during the entire term of this Agreement each of the following: A. Comprehensive General Liability Insurance which affords coverage including completed operations and contractual liability, with limits of liability of not less than $2,000,000 per occurrence and $4,000,000 annual aggregate for liability arising out of Licensee performance of this Agreement. The limits shall be provided by either a single primary policy or combination of policies. If limits are provided with excess and/or umbrella coverage the lunits combined with the primary will equal the minimum limits set forth above. If written with an aggregate, the aggregate shall be double the each occurrence limit. Such insurance shall be endorsed to: (1) Name the City of San Juan Capistrano and its employees, representatives, officers and agents (collectively hereinalier "City and City Personnel") as additional insured for claims arising out of Licensees' performance of this Agreement. (2) Provide that the insurance is primary and non-contributing with any other valid and collectible insurance or self-insurance available to City. A statement on an insurance certificate will not be accepted in lieu of the actual endorsement. 4 ATTACHMENT 1 - Page 4 of 8 B. Automobile Liability Insurance with a limit of liability of not less than 51,000,000 each occurrence and $2,000,000 annual aggregate. The limits shall be provided by either a single primary policy or combination of policies. If limits are provided with excess and/or umbrella coverage the limits combined with the primary will equal the minimum limits set above. Such insurance shall include coverage for all "owned," "hired" and "'non -owned" vehicles, or coverage for "any auto." Such insurance shall be endorsed to: (l) Name the City and City Personnel as additional insured for claims arising out of Licensee performance of this Agreement. (2) Provide that the insurance is primary and non-contributing with any other valid and collectible insurance or self-insurance available to City. A statement on an insurance certificate will not be accepted in lieu of the actual endorsement. C. Workers' Compensation Insurance in accordance with the Labor Code of California and covering all employees of the Licensee providing any service in the performance of this agreement. Such insurance shall be endorsed to: Waive the insurer's right of Subrogation against the City and City Personnel. A statement on an insurance certificate will not be accepted in lieu of the actual endorsement. D. Evidence of Insurance: Licensee shall provide to City a Certificate(s) of Insurance evidencing such coverage together with copies of the required policy endorsements at least fifteen (15) business days prior to the expiration of any policy. Coverage shall not be suspended, voided, cancelled, reduced in coverage or in limits, non -renewed, or materially changed for any reason, without thirty (30) days prior written notice thereof given by the insurer to City by U.S. mail, or by personal delivery, except for nonpayment of premiums, in which case ten (10) days prior notice shall be provided. Signed insurance certificates, endorsements and the general liability declaration page must be sent via email from Licensee's insurance broker/agent to the City at mmorris@sanjuancapistrano.org. Certificate Holder: City of San Juan Capistrano, California 32400 Paseo Adelanto San Juan Capistrano, CA 92675 E. Endorsements: A statement on an insurance certificate will not be accepted in lieu of the actual endorsement. Insurance policies shall not be in compliance if they include any limiting provision or endorsement that has not been submitted to the City for approval. Additional Insured Endorsements shall not: 1. Be limited to "Ongoing Operations" 2. Exclude "Contractual Liability" 3. Restrict coverage to the "Sole" liability of Licensee 4. Contain any other exclusion contrary to the Agreement. 5 ATTACHMENT 1 - Page 5 of 8 F. Acceptability of Insurers. Each policy shall be from a company with current A.M. Best's rating of A VII or higher and authorized to do business in the State of California or approved in writing by the City. Section 9. Liens. Licensees shall not permit to be placed against the Property, or any part thereof, any design professionals', mechanics', materialmen's, contractors' or subcontractors' liens due to Licensee's construction activities thereon or use thereof. Licensees shall indemnify, defend and hold Licensor harmless from all liability for any and all liens, claims and demands, together with the costs of defense and reasonable attorneys' fees, related to same. In addition to and not in limitation of Licensor's other rights and remedies under this Agreement, should Licensees fail either to discharge any lien or claim related to Licensees' construction activities on or use of the Property or to bond for any lien or claim to the reasonable satisfaction of Licensor, or to indemnify, hold harmless and defend Licensor from and against any loss, damage, injury, liability or claim arising out of Licensee use of the Property, then Licensor, at its option, may elect to pay any lien, claim, loss, demand, injury, liability or damages, or settle or discharge any action or satisfy any judgment and all costs, expenses and attorneys' fees incurred in doing so shall be paid to Licensor by Licensees upon written demand, together with interest thereon at the rate of ten percent (10%) per annum from the date incurred or paid through and including the date of payment by Licensee. Section 10. Notices. Any notices required to be given under this License Agreement shall be sent to the following parties by either fax transmission or first class mail postage prepaid as follows: To LICENSOR: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: Karen Brust, City Manager Section 11. Entire Aareement. To LICENSEES: Imperio Motors, LLC dba Imperio Nissan of San Juan Capistrano 33633 Camino Capistrano San Juan Capistrano, CA 92675 Attn: Tommy Morgan Komex Motors, LLC dba Imperio KIA of San Juan Capistrano 33011 Camino Capistrano San Juan Capistrano, CA 92675 Attn: Tommy Morgan This Agreement sets forth the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior discussions, negotiations, understandings or agreements relating thereto. 6 ATTACHMENT 1 - Page 6 of 8 Section 12. No Oral Modification. No alteration or variation of this Agreement shall be valid or binding unless made in writing and signed by the parties hereto. Section 13. Assignnment. Licensees may not assign any of their rights under this Agreement, either voluntarily or by operation of law. Section 14. Governing Law. This Agreement shall be construed in accordance with and governed by the laws of the State of California. Section 15. Authoz7 . Each signatory hereto warrants to the other party its authority to sign on behalf of the party for whom its purports to sign. [Signatures on next page] 7 ATTACHMENT 1 - Page 7 of 8 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date above first written. Attest: Maria Morris, City Clerk Approved as to Form: Jeff Ballinger, City Attorney LICENSOR: City of San Juan Capistrano, a California municipal corporation Derek Reeve, Mayor LICENSEE: Imperio Motors, LLC dba In rio Nissan of San Juan Capistrano .�J LICENSEE: Komex Motors, LLC dba Imperio KIA of San Juan Capistrano 8 ATTACHMENT 1 - Page 8 of 8