Loading...
08-1104_SUPERIOR AUTO OF SJC DBA TOYOTA/SCION OF SJC_Asgmt & Assump of License Agr0 0 ASSIGNMENT AND ASSUMPTION OF LICENSE AGREEMENT FOR TEMPORARY VEHICLE STORAGE This Assignment and Assumption of License Agreement for Temporary Vehicle Storage ("Assumption Agreement") is entered into as of November 4, 2008 by and among SUPERIOR AUTO OF SJC, LLC d.b.a. Toyota/Scion of San Juan Capistrano ("Assignor"), and HOGAN SKR, a California Corporation ("Assignee"), with reference to the following: Whereas, on September 4, 2007 the Assignor entered into the License Agreement for Temporary Vehicle Storage, as amended on March 4, 2008 (License Agreement) with the San Juan Capistrano Community Redevelopment Agency (Agency) for Assignor's use 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; Whereas, Section 13 of said License Agreement provides that Assignor may not assign any of its rights under the License Agreement except with the written consent of the Agency; Whereas, Assignor has requested the Agency's consent to assign the License Agreement to Assignee pursuant to this Assumption Agreement. NOW, THEREFORE, in consideration of the above -referenced facts and the covenants of the parties contained below in this Assumption Agreement, and for other good and valuable consideration, the receipt and sufficiency of which the parties hereby agree as follows: 1. Assignment and Assumption. Assignor hereby assigns and transfers to Assignee, as of the Closing Date, as defined in that certain Asset Purchase Agreement between Assignor and Assignee dated October 13, 2008 (Effective Date), all of Assignor's right, title and interest in, to and under the License Agreement, and Assignee hereby accepts from Assignor all of such right, title and interest, upon the terms and conditions set forth in this Assumption Agreement. In the event there is no Closing, as defined in the Asset Purchase Agreement between Assignor and Assignee, this Agreement shall be null and void. 2. Assumption of Obligations. Assignee hereby expressly and unconditionally assumes and agrees to perform and fulfill, from and after the Effective Date, all the duties, terms, covenants, conditions and obligations required to be fulfilled and performed by Assignor after the Effective Date under the License Agreement. Assignment and Assumption of License Agreement Page 1 of 4 • 3. Indemnity by Assignee. Assignee hereby agrees to indemnify and hold harmless Assignor, Assignor's agents and their respective successors and assigns from and against any and all claims, losses, liabilities and expenses, including reasonable attorney fees, suffered or incurred by Assignor by reason of any breach by Assignee from and after the Effective Date of any of Assignee's duties, terms, covenants, conditions and obligations under the License Agreement. 4. Indemnity by Assignor. Assignor hereby agrees to indemnify and hold harmless Assignee, Assignee's agents and their respective successors and assigns from and against any and all claims, losses, liabilities and expenses, including reasonable attorney fees, suffered or incurred by Assignee by reason of any breach by Assignor prior to the Effective Date of any of Assignor's duties, terms, covenants, conditions and obligations under the License Agreement. 5. Representations and Warranties. Assignor represents and warrants to Assignee that (a) Assignor is not in default of the License Agreement; (b) the execution of this Assignment by Assignor and the Assignment itself have been authorized and no further authorization is necessary on the part of Assignor; (c) the License Agreement has not been amended. modified or rescinded and remains in full force and effect. 6. Attorney Fees. In the event of the bringing of any action or suit by a party hereto against another party hereunder by reason of any breach of any of the covenants, conditions, agreements or provisions on the part of the other party arising out of this Assumption Agreement, then in that event the party who is determined to be the prevailing party shall be entitled to have and recover of and from the other party all costs and expenses of the action or suit, including reasonable attorney fees. 7. Successors and Assigns: Entire Agreement. This Assumption Agreement shall be binding upon and inure to the benefit of the successors, assignees, personal representatives, heirs and legatees of all the respective parties hereto. This Assumption Agreement constitutes the entire understanding among the parties with respect to the subject matter hereof. 8. Governing Law. This Assumption Agreement shall be governed by, interpreted under, and construed and enforceable in accordance with the laws of the State of California. 9. Counterparts. This Assumption Agreement may be executed in multiple counterparts (each of which is to be deemed an original for all purposes). Assignment and Assumption of License Agreement Page 2 of 4 0 IN WITNESS WHEREOF, Assignor and Assignee have executed and delivered this Assumption Agreement as of the day and year first above written. "ASSIGNOR" "ASSIGNEE" Superior Auto of SJC LLC Hogan SKR dba Toyota/ i of �r Juan Capistrano A California Corporation By: Mike Kahn, President o er ogan, President [Agency Consent Follows] Assignment and Assumption of License Agreement Page 3 of 4 9 0 AGENCY CONSENT TO ASSIGNMENT AND ASSUMPTION OF LICENSE AGREEMENT FOR TEMPORARY VEHICLE STORAGE The San Juan Capistrano Community Redevelopment Agency hereby acknowledges that, pursuant to Section 13 of the License Agreement dated September 4, 2007 as amended on March 4, 2008, and maintained as a public record in the office of the Secretary of the Agency and City Clerk of the City of San Juan Capistrano, California, Superior Auto of SJC, LLC ("Assignor") may assign its right, title and interest in and to, and all obligations under said License Agreement, subject to the Agency's consent. By its signature below, the Agency hereby consents to the foregoing Assignment and Assumption Agreement whereby Assignor has assigned its right, title and interest in and to, and all obligations under the terms of the Agreement to Assignee, and Assignee has expressly and unconditionally assumed same. Provided, however, that in the event there is no Closing, as defined in the Asset Purchase Agreement between Assignor and Assignee identified in the foregoing Assumption Agreement, this Consent shall be null and void. SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY, a public body corporate and politic November 4, 2008 -T Go* -^,- Dave Adams, Executive Director Attest: Approved as to Form: IVU U2 "2a Omar Sandoval, City Attorney Assignment and Assumption of License Agreement Page 4 of 4 n 32400 PASEO AOEI-ANTO SAN JUAN CAPISTRANO, CA 92675 (949) 493.1171 (949) 493-1053 FAX www san/uancapistrano. org TRANSMITTAL TO: Claremont Toyota Atten: Roger Hogan 508 Auto Center Drive Claremont, CA 91711 And Superior Automotive Group Atten: Mike Kahn 610 Newport Center Dr, Ste 840 Newport Beach, CA 92660 FROM: Meg Monahan, MMC — City Clerk (949) 443-6308 MEMBERS OF THE CITY COUNCIL SAM ALLEVATO THOMAS W. HRIBAR MARK NIELSEN JOE SOTO DR. LONDRES USO RE: Assignment and Assumption of License Agreement for Temporary Vehicle Storage Gentlemen: Enclosed for each of you: (1) Executed, original agreement as noted. If you have any questions regarding the agreement, please contact Douglas Dumhart, Economic Development Manager, (949) 443-6316 Thank you, Cc: Douglas Dumhart, Economic Development Manager San Juan Capistrano: Preserving the Past to Enhance the Future 0 Printed on 100% recyGetl paper CRA 1114/2008 AGENDA REPORT B3 TO: Dave Adams, Executive Director � FROM: Douglas D. Dumhart, Economic Development Manager SUBJECT: Consideration of Assignment of License Agreement for Temporary Vehicle Storage — Lower Rosan Ranch (Superior Auto of SJC) (Hogan SKR) RECOMMENDATION: By motion, approve the assignment of license agreement for temporary vehicle storage from Superior Auto of SJC, LLC d.b.a. Toyota/Scion of San Juan Capistrano to Hogan SKR and authorize the Executive Director to execute. SUMMARY: On September 4, 2007, Toyota of San Juan entered into the License Agreement for Temporary Vehicle Storage, as amended on March 4, 2008 (License Agreement), with the San Juan Capistrano Community Redevelopment Agency. The Agreement authorized Toyota of San Juan's use 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. On October 17, 2008, the Agency received written request from Superior Auto of SJC, LLC d.b.a. Toyota/Scion of San Juan Capistrano seeking the Agency's consent to assign the License Agreement to Mr. Roger Hogan, future successor -in -interest of Toyota of San Juan store. The request is provided as Attachment 1 to this report. Section 13 of the License Agreement provides that Licensee may not assign any of its rights under the License Agreement except with the written consent of the Agency. Mr. Hogan's qualifications include 31 -years in the car dealer business and being current owner of Claremont Toyota a dealership recognized by the manufacturer as a leader among its franchisees. Staff has prepared an Assignment and Assumption of License Agreement for the Board of Directors consideration. The Assignment is provided as Attachment 2 to this report. COMMISSION/BOARD REVIEW AND RECOMMENDATIONS: N/A Agenda Report • • Page 2 FINANCIAL CONSIDERATIONS: ►G7m NOTIFICATION: Mike Khan, Superior Automotive Group Roger Hogan, Claremont Toyota Warren Watkins, CVME owner Tom Gronewald, CVME HOA President RECOMMENDATION: November 4, 2008 By motion, approve the assignment of license agreement for temporary vehicle storage from Superior Auto of SJC, LLC d.b.a. Toyota/Scion of San Juan Capistrano to Hogan SKR and authorize the Executive Director to execute. Respec Ily submitted, Douglas D. umhart Economic Development Manager Attachment(s): 1. Letter from Superior dated 10-17-2008. 2. Draft Assignment and Assumption. Superior Auto of SJC, LLC dba Toyota -Scion of San Juan Capistrano 610 Newport Center Drive, Suite 840 Newport Beach, CA 92660 Telephone — (949) 467-2763 October 17, 2008 VIA EMAIL DELIVERY Mr. Douglas Dumhart Economic Development Manager City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 RE: Request for Assignment of License Agreement & Amendment for Temporary Vehicular Storage from Superior Auto of SJC, LLC ("Superior") to Hogan SKR, a CA corporation ("Hogan") Dear Mr. Dumhart: Per Section 13 of the License Agreement for Temporary Vehicular Storage dated September 4, 2007 and amended , Superior formally requests that the City of San Juan Capistrano approve as Hogan as Successor -In -Interest to said Agreement. This entity is owned by Mr. Roger Hogan, a current Toyota dealer in LA County (Claremont Toyota) and resident of Orange County, CA. I have attached a brief bio/history of achievements for Mr. Hogan. Hogan SRK is more than qualified to takeover this lease, he has been in the car business for thirty-one (3 1) years. Please add this request to the November 4, 2008 Agenda for Board action, as time is of the essence. Feel free to contact me at (949) 467-2763 if you need anything further. If you need to contact Mr. Hogan, let me know and I will provide his information. Since ly, ick onoptsos EVP ATTACHMENT 0 0 ASSIGNMENT AND ASSUMPTION OF LICENSE AGREEMENT FOR TEMPORARY VEHICLE STORAGE This Assignment and Assumption of License Agreement for Temporary Vehicle Storage ("Assumption Agreement") is entered into as of November 4, 2008 by and among SUPERIOR AUTO OF SJC, LLC d.b.a. Toyota/Scion of San Juan Capistrano ("Assignor"), and HOGAN SKR, a California Corporation ("Assignee"), with reference to the following: Whereas, on September 4, 2007 the Assignor entered into the License Agreement for Temporary Vehicle Storage, as amended on March 4, 2008 (License Agreement) with the San Juan Capistrano Community Redevelopment Agency (Agency) for Assignor's use 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; . Whereas, Section 13 of said License Agreement provides that Assignor may not assign any of its rights under the License Agreement except with the written consent of the Agency; Whereas, Assignor has requested the Agency's consent to assign the License Agreement to Assignee pursuant to this Assumption Agreement. NOW, THEREFORE, in consideration of the above -referenced facts and the covenants of the parties contained below in this Assumption Agreement, and for other good and valuable consideration, the receipt and sufficiency of which the parties hereby agree as follows: 1. Assignment and Assumption. Assignor hereby assigns and transfers to Assignee, as of the Closing Date, as defined in that certain Asset Purchase Agreement between Assignor and Assignee dated October 13, 2008 (Effective Date), all of Assignor's right, title and interest in, to and under the License Agreement, and Assignee hereby accepts from Assignor all of such right, title and interest, upon the terms and conditions set forth in this Assumption Agreement. In the event there is no Closing, as defined in the Asset Purchase Agreement between Assignor and Assignee, this Agreement shall be null and void. 2. Assumption of Obligations. Assignee hereby expressly and unconditionally assumes and agrees to perform and fulfill, from and after the Effective Date, all the duties, terms, covenants, conditions and obligations required to be fulfilled and performed by Assignor after the Effective Date under the License Agreement. Assignment and Assumption of License Agreement Page 1 of 4 ATTACHMENT 2 0 0 3. Indemnity by Assignee. Assignee hereby agrees to indemnify and hold harmless Assignor, Assignor's agents and their respective successors and assigns from and against any and all claims, losses, liabilities and expenses, including reasonable attorney fees, suffered or incurred by Assignor by reason of any breach by Assignee from and after the Effective Date of any of Assignee's duties, terms, covenants, conditions and obligations under the License Agreement. 4. Indemnity by Assignor. Assignor hereby agrees to indemnify and hold harmless Assignee, Assignee's agents and their respective successors and assigns from and against any and all claims, losses, liabilities and expenses, including reasonable attorney fees, suffered or incurred by Assignee by reason of any breach by Assignor prior to the Effective Date of any of Assignor's duties, terms, covenants, conditions and obligations under the License Agreement. 5. Representations and Warranties. Assignor represents and warrants to Assignee that (a) Assignor is not in default of the License Agreement; (b) the execution of this Assignment by Assignor and the Assignment itself have been authorized and no further authorization is necessary on the part of Assignor; (c) the License Agreement has not been amended, modified or rescinded and remains in full force and effect. 6. Attorney Fees. In the event of the bringing of any action or suit by a party hereto against another party hereunder by reason of any breach of any of the covenants, conditions, agreements or provisions on the part of the other party arising out of this Assumption Agreement, then in that event the party who is determined to be the prevailing party shall be entitled to have and recover of and from the other party all costs and expenses of the action or suit, including reasonable attorney fees. 7. Successors and Assigns; Entire Agreement. This Assumption Agreement shall be binding upon and inure to the benefit of the successors, assignees, personal representatives, heirs and legatees of all the respective parties hereto. This Assumption Agreement constitutes the entire understanding among the parties with respect to the subject matter hereof. 8. Governing Law. This Assumption Agreement shall be governed by, interpreted under, and construed and enforceable in accordance with the laws of the State of California. 9. Counterparts. This Assumption Agreement may be executed in multiple counterparts (each of which is to be deemed an original for all purposes). Assignment and Assumption of License Agreement Page 2 of 4 0 0 IN WITNESS WHEREOF, Assignor and Assignee have executed and delivered this Assumption Agreement as of the day and year first above written. "ASSIGNOR" Superior Auto of SJC LLC dba Toyota/ oio�� Juan Capistrano By: Mike Kahn, President "ASSIGNEE" Hogan SKR A California Corporation 0 Roger Hogan, President [Agency Consent Follows] Assignment and Assumption of License Agreement Page 3 of 4 IN WITNESS WHEREOF, Assignor and Assignee have executed and delivered this Assumption Agreement as of the day and year first above written. "ASSIGNOR" Superior Auto of SJC, LLC dba Toyota/Scion of San Juan Capistrano By: Mike Kahn, President "ASSIGNEE" Hogan SM S �K A California Corporation By: - Roger Ho an President [Agency Consent Follows] Assignment and Assumption of License Agreement Page 3 of 4 0 L AGENCY CONSENT TO ASSIGNMENT AND ASSUMPTION OF LICENSE AGREEMENT FOR TEMPORARY VEHICLE STORAGE The San Juan Capistrano Community Redevelopment Agency hereby acknowledges that, pursuant to Section 13 of the License Agreement dated September 4, 2007 as amended on March 4, 2008, and maintained as a public record in the office of the Secretary of the Agency and City Clerk of the City of San Juan Capistrano, California, Superior Auto of SJC, LLC ("Assignor") may assign its right, title and interest in and to, and all obligations under said License Agreement, subject to the Agency's consent. By its signature below, the Agency hereby consents to the foregoing Assignment and Assumption Agreement whereby Assignor has assigned its right, title and interest in and to, and all obligations under the terms of the Agreement to Assignee, and Assignee has expressly and unconditionally assumed same. Provided, however, that in the event there is no Closing, as defined in the Asset Purchase Agreement between Assignor and Assignee identified in the foregoing Assumption Agreement, this Consent shall be null and void. SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY, a public body corporate and politic November 4, 2008 Dave Adams, Executive Director Attest: Meg Monahan, Secretary Approved as to Form: Omar Sandoval, City Attorney Assignment and Assumption of License Agreement Page 4 of 4 0 U CITY OF SAN JUAN CAPISTRANO NOTIFICATION OF MEETING OF POTENTIAL INTEREST SAN JUAN CAPISTRANO REDEVELOPMENT AGENCY The Board of Directors of San Juan Capistrano Community Redevelopment Agency will meet at 6:30 p.m. on Tuesday November 4, 2008, in the City Council Chamber in City Hall, to consider: "Consideration of Assignment of License Agreement for Temporary Vehicle Storage - Lower Rosan Ranch (Superior Auto of SJC)(Hogan SKR)" — Item No. B3. If you have specific thoughts or concerns regarding this item, you are encouraged to participate in this decision making process. You can communicate with the Board of Directors through correspondence addressed to the Board and/or by attending the meeting and speaking to the Board during the public meeting. Correspondence related to this item must be received at the City Clerk's office by 5:00 p.m. on Monday, November 3, 2008 to allow time for the Board to consider its content. If you would like to speak at the meeting, please complete a yellow "Request to Speak" form found inside the entrance to the Council Chamber. This form is turned in at the staff table, just in front of the Council dais. You will be called to speak by the Chairman when the item is considered. You have received this notice at the request of the City staff member Douglas D. Dumhart, Economic Development Manager. You may contact that staff member at (949) 443-6316 with any questions. The agenda, including agenda reports, is available to you on our web site: www.san'uancapistrano.org. If you would like to subscribe to receive a notice when agendas are posted to the web site, please make that request by sending an e-mail to: cityclerk5sanivancaoistrano.org. Meg Monahan, MMC City Clerk cc: Mike Khan, Superior Automotive Group; Roger Hogan, Claremont Toyota; Warren Watkins, CVME Owner; Tom Gronewald, CVME HOA President; Douglas D. Dumhart, Economic Development Manager 32400 Paseo Adelanto • San Juan Capistrano • California 92675 (949) 493.1171 01ann1eJ an 100% ncydatl paper 3 3 U < .. ....... 2 loan nn 5Sen ....... .ny Red -111P-1 Agency . K W O W < > R_ O O z 3 r m y t D i "M.I l M,4 r4 Gmmidimx m s CITY OF SAN JUAN CAPISTRANO K NOTIFICATION OF MEETING OF POTENTIAL INTEREST SAN JUAN CAPISTRANO REDEVELOPMENT AGENCY The Board of Directors of San Juan Capistrano Community Redevelopment Agency will meet at 6:30 p.m. on Tuesday November 4, 2008, in the City Council Chamber in City Hall, to consider: "Consideration of Assignment of License Agreement for Temporary Vehicle Storage - Lower Rosan Ranch (Superior Auto of SJC)(Hogan SKR)" — Item No. B3. If you have specific thoughts or concerns regarding this item, you are encouraged to participate in this decision making process. You can communicate with the Board of Directors through correspondence addressed to the Board and/or by attending the meeting and speaking to the Board during the public meeting. Correspondence related to this item must be received at the City Clerk's office by 5:00 p.m. on Monday, November 3, 2008 to allow time for the Board to consider its content. If you would like to speak at the meeting, please complete a yellow "Request to Speak" form found inside the entrance to the Council Chamber. This form is turned in at the staff table, just in front of the Council dais. You will be called to speak by the Chairman when the item is considered. You have received this notice at the request of the City staff member Douglas D. Dumhart, Economic Development Manager. You may contact that staff member at (949) 443-6316 with any questions. The agenda, including agenda reports, is available to you on our web site: www.san'uancapistrano.org. If you would like to subscribe to receive a notice when agendas are posted to the web site, please make that request by sending an e-mail to: cityclerk5sanivancaoistrano.org. Meg Monahan, MMC City Clerk cc: Mike Khan, Superior Automotive Group; Roger Hogan, Claremont Toyota; Warren Watkins, CVME Owner; Tom Gronewald, CVME HOA President; Douglas D. Dumhart, Economic Development Manager 32400 Paseo Adelanto • San Juan Capistrano • California 92675 (949) 493.1171 01ann1eJ an 100% ncydatl paper