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11-0215_HOGAN SRK DBA CAPISTRANO TOYOTA SCION_License Agreement LICENSE AGREEMENT FOR TEMPORARY VEHICLE STORAGE THIS LICENSE AGREEMENT ("Agreement") is made and entered into as of February 15, 2011 by and between the San Juan Capistrano Community Redevelopment Agency, a public body corporate and politic, hereinafter, ("Licensor"), and Hogan SRK dba Capistrano Toyota-Scion ("Licensee"), sometimes referred to together 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, ("Property'); and, WHEREAS, Licensee is an auto dealership that anticipates the development of permanent improvements at its respective auto dealership and will require the displacement of vehicle inventory during construction; and, WHEREAS, Licensee has a need for a temporary storage yard for vehicle inventory; and, WHEREAS, Licensee desires to use a portion of the Property and more particularly described in Exhibit"A"attached hereto and incorporated herein by reference,to facilitate the temporary storage of inventory, hereinafter, ("Permitted Activities") as described in Section 1 (d.) below; and, WHEREAS, Licensor desires to grant Licensee permission to engage in said Permitted Activities upon its Property, subject to Licensee obtaining required City of San Juan Capistrano ("City) land use and CEQA environmental approvals; 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 Licensee and its representatives and agents a non- exclusive revocable license to enter upon the Property for"Permitted Activities" subject to the conditions set forth in this Agreement. This Agreement is intended to create a temporary license and shall not be deemed to create an easement, irrevocable license, lease or a fee interest in the Licensor's Property. (b) Planning Land Use Entitlements as Condition Precedent. The use of the Property Page 1 of 9 under the "permitted uses" provision of this Agreement is subject to Licensee obtaining a Use Permit and any other applicable land use permits under City's zoning title of the Municipal Code. Further, Licensee shall be subject to compliance with the California Environmental Quality Act through the City's processing of the required land use entitlements applicable to the permitted uses authorized under this agreement. (c) Term of License Agreement. This Agreement shall take effect upon the date of approval first above written. Thereafter, Licensee shall have a period of one (1) year to secure applicable City land use approvals and other federal and state regulatory agencies. Licensee may request extensions of time from the Agency Board based upon a showing of necessity for obtaining more time to complete regulatory processing requirements. The request for an extension of time shall not be unreasonably withheld. When Licensee has secured all necessary governmental approvals and completed the improvements necessary to begin operation of permitted uses, the maximum period of time Licensee shall have to conduct the permitted uses shall be for a period of twenty-four (24) months. Upon conclusion of the twelfth month of operation, Licensor shall have the right to unilaterally terminate the license agreement without cause by giving Licensee advance 30 days written notice of termination. Termination of the Agreement shall in no way prejudice any of the rights and remedies available to Licensor at law or in equity, and Licensee acknowledges and agrees that all of the obligations and responsibilities of Licensee under this Agreement shall continue and survive such termination. (d) Permitted Activities. Licensee is authorized to prepare the land to receive and store new vehicle inventory subject to securing all requisite governmental permits as noted above. Preparation of the site includes, but are not limited to, minor grading for earthen access ramp, creating a level useable 1.5 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 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. (e) Consideration/Fee for License. The Licensee shall pay to Licensor a monthly license fee thereafter totaling one thousand five hundred ($1,500.00) dollars per month beginning on March 1, 2011. Payment shall be made within five (5) days of the first of each month. Licensee's failure to pay license fee by the 10th day of the month will result in a late charge of 10%. License fee and other payments shall be paid by Licensee to Licensor at Licensor's notice address set forth herein. (f) County Property Encroachment Permit Provisions. Licensee shall be responsible Page 2 of 9 and will be accountable for, and shall comply with all terms, conditions, and provisions of the County Property Encroachment Permit. Section 2. Termination Default & Restoration of Land to Original Condition. (a) Termination Without Cause. As set forth in Section 1(c), this Agreement may be terminated by Licensor without cause upon expiration of the twelve month period of Licensee's usage of the Property for authorized permitted uses described in section 1(d). Licensee may terminate this Agreement without cause upon thirty (30) days notice to Licensor. (b) Default and Cure Provisions. In addition, Licensor shall have the right to terminate this Agreement upon Licensee's default. "Default" means the failure of Licensee to perform any term, condition, covenant or agreement of this Agreement, and the continuation of such failure for a period of ten (10) days after Licensor shall have given Licensee written notice specifying the same, or in the case of a situation in which the default cannot reasonably be cured within thirty (30) days, if licensee shall not promptly, within thirty(30) 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, and diligently pursue the same to completion. In the event of any default by Licensee, including expiration of any applicable cure period, Licensor may terminate the Agreement by any lawful means available in law or equity. These same provisions shall apply in the event of default by Licensor. (c) Restoration of Land to Original Condition Upon License Termination. Upon termination of the Agreement, Licensee shall be responsible for removing all improvements it has placed upon the land in instituting its permitted uses, unless Licensor elects to accept some or all of said improvements. Any improvements accepted by Licensor, will be at no cost to Licensor, licensee shall promptly initiate and exercise due diligence in removing said improvements until all improvements have been removed. Section 3. Compliance with Laws. Licensee's rights hereunder shall be conditioned upon, and Licensee shall, at its 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 Licensee any approvals normally required underthe City's ordinances or local regulations. Any approvals normally required for any lighting, grading, drainage, or other issues shall be processed by Licensee and City as otherwise handled. Page 3 of 9 Section 4. No Duty to Warn. Licensor has no duty to inspect the Property and no duty to warn Licensee or any person of any other latent or patent defect, condition or risk that might be incurred in entering the Property. Licensee has inspected or will inspect the Property and hereby accepts the condition of the Property "As is." Licensee acknowledge that neither Licensee nor any employee, agent or representative of Licensee has made representations or warranties concerning the condition of the Property. All persons entering the Property under this License do so at their own risk. Section 5. Permits and Approvals;ovals; Standard of Work. At its sole cost and expense, Licensee shall obtain all governmental permits and authorizations required in order to engage in the Permitted Activities. Licensee shall comply, and shall cause its 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. Licensee shall indemnify, defend, protect and hold San Juan Capistrano Community Redevelopment Agency, its appointed officials and employees, 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 Licensee and/or its guests, invitees, agents, and representatives. Licensee 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 Licensee's rights under this Agreement, Licensee shall be responsible for any damage done to any person, or to the Property or any other Property, caused by Licensee, the officers, directors, employees, agents, independent contractors, insurers, lenders, representatives, successors or permitted assigns of Licensee, and the other users. Section 8. Insurance. 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. Page 4 of 9 i) Comprehensive Genera[ Liability. Throughout the term of this License, Licensee shall maintain in full force and effect Comprehensive General Liability coverage in the following minimum amounts: $1,000,000 property damage; $1,000,000 injury to one person/any one occurrence/not limited to contractual period; $2,000,000 injury to more than one person/any one occurrence/not limited to contractual period. ii) Proof of Insurance Requirements/Endorsement. Prior to beginning any work under this License, Licensee shall submit the insurance certificates, including the deductible or self-retention amount, and an additional insured endorsement to the Licensee's general liability and umbrella liability policies to the Licensor's General Counsel for certification that the insurance requirements of this License have been satisfied. iii) 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 San Juan Capistrano Community Redevelopment Agency, except that ten (10)days'notice shall be given if there is a cancellation due to failure to pay a premium. Section 9. Liens. Licensee 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. Licensee 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 Licensee fail either to discharge any lien or claim related to Licensee's 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's 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 Licensee 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. Page 5 of 9 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: To LICENSEE: San Juan Capistrano Hogan SRK Community Redevelopment Agency dba Capistrano Toyota-Scion Attn: Agency Executive Director Attn. Roger Hogan 32400 Paseo Adelanto 33395 Camino Capistrano San Juan Capistrano, CA 92675 San Juan Capistrano, CA 92675 Fax Number (949) 488-3874 Section 11. Entire A reement. 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. 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 1 3. Successors and Assigns. Licensee may not assign any of its rights under this Agreement, either voluntarily or by operation of law, without Licensor's prior written consent. No assignment by Licensee shall release Licensee from any liability under this Agreement unless otherwise provided by written agreement of the parties. Section 14. Governing Law. This Agreement shall be construed in accordance with and governed by the laws of the State of California. Section 15. Authorily. Each signatory hereto warrants to the other party its authority to sign on behalf of the party for whom its purports to sign. Page 6 of 9 Section 16. Prior Licenses Terminated. All licenses, agreements or understandings between the Parties pertaining to the Property are hereby terminated. [Signatures on next page] Page 7 of 9 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date above first written. LICENSOR: At � San Juan Capistrano Community t I 'g Redevelopment Agency, a public body corporate and politic AkA M 'a ris, Age qcy Vecretary Laura re envy Chair"' ........ Approved as to Farm: LICENSEE! Hogan SRK dba Capistrano 6VDA 0o 1/1 Toyota-Scion Omar San ova , Agency Co sel ------- oger Hogan, President Page 8 of 9 7FU CL CL rmo }�{� 1 f'T� P 14f LI� V+ tt�'iy� ti � 1 ff'ykf � �4 f i t j U3col ts r W %SZ F a 4 # u 10 hf f t dk s }ry}a kSa f f UJ Q� �! Pu`iig a� � lp 8�ly Z U) Cz I�q F •(` CL ce) �p W & f 3y .; -� _., ...";. Lo N W �, � c N � z3 f. f`'') fn Cpl c (nt IlJ rj D N y 1 3 > l w{ t/1 Q CL 32400 PASEO A0ELANTcs MEMBERS OF THE CITY cOUP�ctL SAN JUAN CAPISTRANO,CA 92675 SAM ALLEVATO (949)493-1171 � �IRICH"6ATU LAURAFREESE (949)493-1053 FAX (STRWAO i I�6@ LARRY KRAMER www.san j uancapistrana org 1776 DEREK REEVE ® JOHN TAYLOR dr TRANSMITTAL TO: Hogan SRK Dba Capistrano Toyota Scion Attn: Roger Hogan 33395 Camino Capistrano San Juan Capistrano, CA 92675 DATE: March 7, 2011 FROM: Christy Jakl, Deputy City Clerk (949) 443-6310 RE: License Agreement —Temporary Vehicle Storage Thank you for providing documentation confirming compliance with the terms of the agreement related to insurance. Please keep in mind this documentation must remain current with our office during the term of this agreement. If you have questions related to insurance requirements, please call me at (949) 443-6310. If you have questions concerning the agreement, please contact Cindy Russell, Chief Financial Officer/Treasurer, at (949) 443-6301. An original agreement is enclosed for your records. Cc: Cindy Russell, Chief Financial Officer/Treasurer Sufi Juan Capistrano: r ese�-ving the .Poet to Enhance the T-u.Iure Printed on 900%recyded paper Today's Date: 2/3/11 Transmittal Routing (check All That Apply) ❑ City Attorney ❑ City Manager ❑ City Clerk CONTRACT TRANSMITTAL CIP No. (if any): Project Manager's Last Name: Russell Phone Extension: 6301 Council or CRA Meeting Date (if applicable): 2/15111 APPROVING AUTHORITY: (Check roe) Ll Mayor CRA Chair City Manager Provide (1) executed original contract for each signing party, including the City. If the agreement is to be recorded --only (1) original will be recorded with certified copies going to other parties. Please provide the mailing address of any party to receive an agreement — unless the mailing address is included within the body of the agreement: Name(s) Street City St Zi Attn: Roger Hogan 33395 Camino Capistrano San Juan CA 92675 Capistrano OTHER INSTRUCTIONS: Form Date:01-2004 D -7 CRA 2/15/2011 AGENDA REPORT B6 TO: Joe Tait, Executive Directo FROM: Cindy Russell, Finance Officer SUBJECT: Consideration of License Agreement for Temporary Vehicle Storage on Lower Rosan Ranch (TCAG, INC.,. a California Corporation, and Hogan SRK dba Capistrano Toyota •Scion) (APN 121-240-73, 121-253-13 & 15) RECOMMENDATION: By motion, approve: 1. A License Agreement by and between the San Juan Capistrano Community Redevelopment Agency and TCAG, INC. (TCAG) a California Corporation; and 2. A License Agreement by and between the San Juan Capistrano Community Redevelopment Agency and Hogan SRK dba Capistrano Toyota•Scion (Capistrano Toyota•Scion); and 3. A reduction in license fees to Hogan SRK dba Capistrano Toyota•Scion for the months of January and February 2011 for licensed property occupied by the City. SITUATION: Summary and Recommendation: On October 19, 2010, the Agency Board of Directors entered into an Agreement Regarding Operating Covenant and Restrictive Covenants with Tuttle Click Automotive Group, INC., a California Corporation (TCAG), to open and operate a Ford dealership as Tuttle Click's Capistrano Ford. The agreement benefited the project area, specifically and the City, generally by retaining the Capistrano Ford store, which was scheduled to close on December 1, 2010 due to the Costco expansion, relocating the franchise to existing vacant auto dealership sites (former Nissan and Dodge/Chrysler stores) on Camino Capistrano and causing a portion of the existing vacant dealership properties (approximately two (2) acres) to be assembled with the existing Capistrano Toyota•Scion store for their expansion to fulfill corporate acreage requirements. The agreement was approved to further the Agency's business retention and expansion efforts and the re-tenanting of auto dealerships as outlined in the Agency's five-year implementation Both TCAG and Hogan SRK dba Capistrano Toyota•Scion (Capistrano Toyota•Scion) anticipate the development of permanent improvements at each respective auto dealership which will require the displacement of vehicle inventory during construction. Agenda Report Page 2 February 15, 2011 The Agency currently has an existing license agreement with Capistrano Toyota-Scion e. for a temporary storage yard for vehicle inventory consisting of a total of 4 acres on the Lower Rosan Ranch. The history of this vehicle storage area is provided in the background section of this report. TCAG and Capistrano Toyota-Scion have approached the Agency regarding the continued use of the property for temporary vehicle storage during construction. The purpose of the extending the license agreement is to provide for continued vehicle sales and sales tax generation to the community during construction. Both dealers have proposed a monthly fee of $1,000 per acre or a total of $4,000 per month for the property. The term of the agreement would be for twenty-four (24) months of operations after obtaining required approvals and could be terminated without cause by the Agency after twelve months or by either dealer at any time with thirty (30) days' notice. Staff supports the Licensee termination clause in an effort to encourage the expeditious completion of the improvements. Additionally, on August 2, 2010, the City Council directed the temporary relocation of its dirt processing and storage operations to the Lower Rosan Ranch property and to locate the operation as far as possible from residential areas. Therefore, the City operation was located directly adjacent to the north side of the car storage area. Since Capistrano Toyota-Scion was only paying $1,500 monthly for the use of I '/z acres from February 2010 through December 31, 2010, the City was able to use the remainder of the property. However,. on January 1, 2011, the license fee due under the current agreement reverted to the original $2,000 per acre for the entire four (4) acres or.$8,000 per month fee. Due to the winter rains and subsequent mud, the dirt operation was not able to be moved within the 90-day period to the City's Eastern Open Space area. Capistrano Toyota-Scion is currently paying rent for the entire 4-acres, and is requesting pro-rated rent on the 2 acres that has been accessible to them during the months of January and February 2011. Staff has prepared two License Agreements, one between the Agency and TCAG, INC., and one between the Agency and Hogan SRK dba Capistrano" Toyota-Scion and recommends the Agency Board of Directors approve the Agreements for Temporary Vehicle Storage on Lower Rosan Ranch (Attachment I and Attachment 2), effective immediately. Additionally, staff recommends the Agency Board of Directors authorize a reduction of rent in recognition of the City's use of the property to $4,000 per month for Capistrano Toyota-Scion from January 1, 2011 through the effective date of the new agreement with Capistrano Toyota-Scion under the current agreement. Background: Currently, the Redevelopment Agency has a License Agreement with Hogan SRK dba. Capistrano Toyota-Scion (Capistrano Toyota-Scion). The License Agreement is consistent with direction provided by the Agency Board of Directors on August 7, 2007 to support the interim use of the property to aid the City's car dealers with their request for vehicle storage needs. The Planning Commission adopted PC Resolution No. 07-11- 13-2 7-11-13-2 (Attachment 6) approving Temporary Use Permit 07-008 on November 13, 2007 Agenda Report Page 3 February 15, 2011 authorizing the development and operation of a temporary vehicle storage facility on four (4) acres of the Lower Rosan Ranch property. A License Agreement with Superior Auto, LLC (dba Capistrano Toyota/Scion of San Juan Capistrano, the predecessor of Capistrano Toyota-Scion) was approved by the Agency Board of Directors on September 4, 2007(Attachment 3), and contained the terms and conditions for their use of approximately four acres of the Lower Rosan Ranch property for temporary storage of vehicle inventory. The site required over $100,000 of prep work to make it useable for temporary storage. In consideration of improvements Superior Auto, LLC made to the Property, no fee payment was required for the first eighteen months of the agreement. The license agreement included a minimum period of 18 months of operations at a rate of $8,000 per month. A License Agreement Amendment was authorized by the Agency Board of Directors on March 4, 2008, so that the Licensee would be accountable to comply with the Orange County Flood Control District's Encroachment Permit (Attachment 4). On February 2, 2010, Capistrano Toyota-Scion (the successor entity to Superior Auto, LLC) was granted a Second Amendment to the License Agreement by the Agency Board of Directors (see Attachment 5). Due to the deteriorating economic climate and declining automotive market, Capistrano Toyota-Scion was using less than half of the area stipulated in the terms of the agreement. Therefore, the Agency Board approved a monthly fee of $1,500 per month from February 1, 2010 through December 31, 2010 for one and one half (1 Y2) acres, or approximately $1,000.00 per acre, of the permitted four (4) acres for the purpose of vehicle storage. Pursuant to the Second Amendment to the License Agreement for Temporary Vehicle Storage, the monthly fee of $8,000 was reinstated on January 1, 2011. COMMISSION/lBOARD REVIEW AND RECOMMENDATIONS: N/A FINANCIAL CONSIDERATIONS- Capistrano Toyota-Scion is currently required to pay a monthly license fee of eight thousand ($8,000.00) dollars per month, or a total of $2,000 per acre, for four acres. The Second Amendment to the License Agreement for Temporary Vehicle Storage required payment of $1,000.00 per acre, through December 2010, with an increase of rent to $2,000.00 per acre starting in January 2011. As stated earlier, Capistrano Toyota-Scion and TCAG have approached the Agency and requested the continuation of payment for $1,000 per acre. Under the new License Agreement TCAG would pay $2,500 per month in license fees for 2.5 acres of Lower Rosan Ranch, and Capistrano Toyota•Scion would pay $1,500 per month in license fees for 1.5 acres of the Lower Rosan Ranch property. Agenda Report Page 4 February 15, 2011 The license fees for the current license agreement were not included in the Community Redevelopment Agency FY 2014111 budget. Staff recommends that fees generated from the current license agreement and any subsequently approved license agreements be included in the mid-year adjusted budget and used to offset interest payments on the Agency's note on the Lower Rosan Ranch property. The total proposed license fee of $4,000 per month or $48,000 annually would offset approximately 16% of the interest paid on the property. NOTIFICATION: Roger Mogan, Capistrano Toyota-Scion Christopher Cotter, TCAG, INC. Capistrano Valley Mobile Estates RECOMMENDATION: By motion, approve: 1, A License Agreement by and between the San Juan Capistrano Community Redevelopment Agency and TCAG, INC. a California Corporation; and 2. A License Agreement by and between the San Juan Capistrano Community Redevelopment Agency and Hogan SRK dba Capistrano Toyota-Scion; and 3. A reduction in license fees to Hogan SRK dba Capistrano Toyota-Scion for the months of January and February 2011 for licensed property occupied by the City. Respectfully submitted, Prepared by: .R LAAA w,aAtwz- d i E/F �f., Cindy Russell arise C. Rojas-Norto'n� Finance Officer Administrative Specialist Attachment(s): 1. License Agreement for Temporary Vehicle Storage between the Agency and TCAG, INC. 2. License Agreement for Temporary Vehicle Storage between the Agency and Hogan SRK dba Capistrano Toyota-Scion 3. License Agreement for Temporary Vehicle Storage dated September 4, 2007 4. License Agreement Amendment for Temporary Vehicle Storage dated March 4, 2008 5. Second Amendment to the License Agreement for Temporary Vehicle Storage dated February 2, 2010 6. PC Resolution 07-11-13-2 Temporary Use Permit 07-008 LICENSE AGREEMENT FOR TEMPORARY VEHICLE STORAGE THIS LICENSE AGREEMENT ("Agreement") is made and entered into as of February 15, 2011 by and between the San Juan Capistrano Community Redevelopment Agency, a public body corporate and politic, hereinafter, ("Licensor"), and TCAG, INC., a California Corporation or an affiliate ("Licensee"), sometimes referred to together 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, ("Property"); and, WHEREAS, Licensee is an auto dealership that anticipates the development of permanent improvements at its respective auto dealership and will require the displacement of vehicle inventory during construction; and, WHEREAS, Licensee has a need for a temporary storage yard for vehicle inventory; and, WHEREAS, Licensee desires to use a portion of the Property and more particularly described in Exhibit"A"attached hereto and incorporated herein by reference,to facilitate the temporary storage of inventory, hereinafter, ("Permitted Activities") as described in Section 1 (d.) below; and, WHEREAS, Licensor desires to grant Licensee permission to engage in said Permitted Activities upon its Property,subject to Licensee obtaining required City of San Juan Capistrano ("City") land use and CEQA environmental approvals; 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 Licensee and its representatives and agents a non- exclusive revocable license to enter upon the Property for"Permitted Activities" subject to the conditions set forth in this Agreement. This Agreement is intended to create a temporary license and shall not be deemed to create an easement, irrevocable license, lease or a fee interest in the Licensor's Property. Page 1 of 9 ATTACHMENT (b)Planning Land Use Entitlements as Condition Precedent. The use of the Property under the "permitted uses" provision of this Agreement is subject to Licensee obtaining a Use Permit and any other applicable land use permits under City's zoning title of the Municipal Code. Further, Licensee shall be subject to compliance with the California Environmental Quality Act through the City's processing of the required land use entitlements applicable to the permitted uses authorized under this agreement. (c) Term of License Agreement. This Agreement shall take effect upon the date of approval first above written. Thereafter, Licensee shall have a period of one (1) year to secure applicable City land use approvals and other federal and state regulatory agencies. Licensee may request extensions of time from the Agency Board based upon a showing of necessity for obtaining more time to complete regulatory processing requirements. The request for an extension of time shall not be unreasonably withheld. When Licensee has secured all necessary governmental approvals and completed the improvements necessary to begin operation of permitted uses, the maximum period of time Licensee shall have to conduct the permitted uses shall be for a period of twenty-four (24) months. Upon conclusion of the twelfth month of operation, Licensor shall have the right to unilaterally terminate the license agreement without cause by giving Licensee advance 30 days written notice of termination. Termination of the Agreement shall in no way prejudice any of the rights and remedies available to Licensor at law or in equity, and Licensee acknowledges and agrees that all of the obligations and responsibilities of Licensee under this Agreement shall continue and survive such termination. (d) Permitted Activities. Licensee is authorized to prepare the land to receive and store new vehicle inventory subject to securing all requisite governmental permits as noted above. Preparation of the site includes, but are not limited to, minor grading for earthen access ramp, creating a level useable 2.5 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 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. (e) Consideration/Fee for License. The Licensee shall pay to Licensor a monthly license fee thereafter totaling two thousand five hundred ($2,500.00) dollars per month beginning on March 1, 2011. Payment shall be made within five(5)days of the first of each month. Licensee's failure to pay license fee by the 10th day of the month will result in a late charge of 10%. License fee and other payments shall be paid by Licensee to Licensor at Licensor's notice address set forth herein. Page 2 of 9 (f) County Property Encroachment Permit Provisions. Licensee shall be responsible and will be accountable for, and shall comply with all terms, conditions, and provisions of the County Property Encroachment Permit. Section 2. Termination, Default, & Restoration of Land to Original Condition. (a)Termination Without Cause. As set forth in Section 1(c), this Agreement may terminated by Licensor without cause upon expiration of the twelve month period of Licensee's usage of the Property for authorized permitted uses described in section 1(d). Licensee may terminate this Agreement without cause upon thirty (30) days notice to Licensor. (b) Default and Cure Provisions. In addition, Licensor shall have the right to terminate this Agreement upon Licensee's default. "Default" means the failure of Licensee to perform any term, condition, covenant or agreement of this Agreement, and the continuation of such failure for a period of ten (10) days after Licensor shall have given Licensee written notice specifying the same, or in the case of a situation in which the default cannot reasonably be cured within thirty (30) days, if Licensee shall not promptly, within thirty(30)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, and diligently pursue the same to completion. In the event of any default by Licensee, including expiration of any applicable cure period, Licensor may terminate the Agreement by any lawful means available in law or equity. These same provisions shall apply in the event of default by Licensor. (c) Restoration of Land to Original Condition Upon License Termination. Upon termination of the Agreement, Licensee shall be responsible for removing all improvements it has placed upon the land in instituting its permitted uses, unless Licensor elects to accept some or all of said improvements. Any improvements accepted by Licensor, will be at no cast to Licensor. Licensee shall promptly initiate and exercise due diligence in removing said improvements until all improvements have been removed. Section 3. Compliance with Laws. Licensee's rights hereunder shall be conditioned upon, and Licensee shall, at its 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 Licensee any approvals normally required under the City's ordinances or local regulations. Any approvals normally required for any lighting, grading, drainage, or other issues shall be processed by Licensee and City as otherwise handled. Page 3 of 9 Section 4. No Duty to Warn. Licensor has no duty to inspect the Property and no duty to warn Licensee or any person of any other latent or patent defect, condition or risk that might be incurred in entering the Property. Licensee has inspected or will inspect the Property and hereby accepts the condition of the Property "As is." Licensee acknowledge that neither Licensee nor any employee, agent or representative of Licensee has made representations or warranties concerning the condition of the Property. All persons entering the Property under this License do so at their own risk. Section 5. Permits and Approvals; Standard of Work. At its sole cost and expense, Licensee shall obtain all governmental permits and authorizations required in order to engage in the Permitted Activities. Licensee shall comply, and shall cause its 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 5. Indemnification. Licensee shall indemnify, defend, protect and hold San Juan Capistrano Community Redevelopment Agency, its appointed officials and employees, 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 Licensee and/or its guests, invitees, agents, and representatives. Licensee 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 Licensee's rights under this Agreement, Licensee shall be responsible for any damage done to any person, or to the Property or any other Property, caused by Licensee, the officers, directors, employees, agents, independent contractors, insurers, lenders, representatives, successors or permitted assigns of Licensee, and the other users. Section 8. Insurance. 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. Page 4 of 9 i) Comprehensive General Liability. Throughout the term of this License, Licensee shall maintain in full force and effect Comprehensive General Liability coverage in the following minimum amounts: $1,000,000 property damage; $1,000,000 injury to one person/any one occurrence/not limited to contractual period; $2,000,000 injury to more than one person/any one occurrence/not limited to contractual period. ii) Proof of Insurance Requirements/Endorsement. Prier to beginning any work under this License, Licensee shall submit the insurance certificates, including the deductible or self-retention amount, and an additional insured endorsement to the Licensee's general liability and umbrella liability policies to the Licensor's General Counsel for certification that the insurance requirements of this License have been satisfied. iii) 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 San Juan Capistrano Community Redevelopment Agency, except that ten(10)days'notice shall be given if there is a cancellation due to failure to pay a premium. Section 9. Liens. Licensee 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. Licensee 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 Licensee fail either to discharge any lien or claim related to Licensee's 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's 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 Licensee 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. Page 5 of 9 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: To LICENSEE: San Juan Capistrano TCAG, INC. Community Redevelopment Agency Attn: Christopher B. Cotter Attn. Agency Executive Director 40 Auto Center Drive 32400 Paseo Adelanto Irvine, CA 92860 San Juan Capistrano, CA 92675 Fax Number (949) 830-3981 Fax Number(949) 488-3874 Section 11. Entire Agreement. 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. 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. Successors and Assigns. Licensee may not assign any of its rights under this Agreement, either voluntarily or by operation of law,without Licensor's prior written consent. No assignment by Licensee shall release Licensee from any liability under this Agreement unless otherwise provided by written agreement of the parties. Section 14. Governing Law. This Agreement shall be construed in accordance with and governed by the laws of the State of California. Section 15. Authority. Each signatory hereto warrants to the other party its authority to sign on behalf of the party for whom its purports to sign. Page 6 of 9 Section 16. Prior Licenses Terminated. All licenses, agreements or understandings between the Parties pertaining to the Property are hereby terminated. [Signatures on next page] Page 7 of 9 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date move first written. LICENSOR: Attest: San Juan Capistrano Community Redevelopment Agency, a public body corporate and politic Maria Morris, Agency Secretary Laura Freese, Agency Chair Approved as to Form: LICENSEE: TCAG, INC., and California Corporation 6M 4�ej O ar an do ai, Agency C o u n s eY Chris r B. Cotter, President Rage 8 of 9 Exhibit "A" DESCRIPTION OF PROPERTY UNDER LICENSE Portions of APN 121-240-73; 121-253-13 and 121-253-15 consisting of approximately 2.5 acres as identified on the attached site plan. AM 6" g RF 16 \ x \ o . 1r � V A \ - 1 nLlcrkr i GORDON L.raOUNTJov Lower Rosan Ranch M RSS=A7F_S,MC, Er« nc aRvsirr6n os trs saxotans E k - '� nnnr wsaxra wdccrr�txca�ffsus :. A 7eaassro rnx¢na�asnsnso -- - 'fhe in€vrirariiarr sfm+'r i�fnr the soji•p[rr�nssr a3'o[[efs[nrrdri�af3�ruaieRr:rcr mre^as ul•u�v� Page 9 of 9 LICENSE AGREEMENT FOR TEMPORARY VEHICLE STORAGE THIS LICENSE AGREEMENT ("Agreement") is made and entered into as of February 15, 2011 by and between the San Juan Capistrano Community Redevelopment Agency, a public body corporate and politic, hereinafter, ("Licensor"), and Hogan SRK dba Capistrano Toyota-Scion ("Licensee"), sometimes referred to together 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 121240-73; 121-253-13, and 121-253-15, hereinafter, ("Property„); and, WHEREAS, Licensee is an auto dealership that 'anticipates the development of permanent improvements at its respective auto dealership and will require the displacement of vehicle inventory during construction; and, WHEREAS, Licensee has a need for a temporary storage yard for vehicle inventory; and, WHEREAS, Licensee desires to use a portion of the Property and more particularly described in Exhibit"A"attached hereto and incorporated herein by reference,to facilitate the temporary storage of inventory, hereinafter, ("Permitted Activities") as described in Section 1 (d.) below; and, WHEREAS, Licensor desires to grant Licensee permission to engage in said Permitted Activities upon its Property, subject to Licensee obtaining required City of San Juan Capistrano ("City") land use and CEQA environmental approvals; 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 Licensee and its representatives and agents a non- exclusive revocable license to enter upon the Property for"Permitted Activities" subject to the conditions set forth in this Agreement. This Agreement is intended to create a temporary license and shall not be deemed to create an easement, irrevocable license, lease or a fee interest in the Licensor's Property. (b) Planning Land Use Entitlements as Condition Precedent. The use of the Property Page 1 of 9 ATTACH ENT under the "permitted uses" provision of this Agreement is subject to Licensee obtaining a Use Permit and any other applicable land use permits under City's zoning title of the Municipal Code. Further, Licensee shall be subject to compliance with the California Environmental Quality Act through the City's processing of the required land use entitlements applicable to the permitted uses authorized under this agreement. (c) Term of License Agreement. This Agreement shall take effect upon the date of approval first above written. Thereafter, Licensee shall have a period of one (1) year to secure applicable City land use approvals and other federal and state regulatory agencies. Licensee may request extensions of time from the Agency Board based upon a showing of necessity for obtaining more time to complete regulatory processing requirements. The request for an extension of time shall not be unreasonably withheld. When Licensee has secured all necessary governmental approvals and completed the improvements necessary to begin operation of permitted uses, the maximum period of time. Licensee shall have to conduct the permitted uses shall be for a period of twenty-four (24) months. Upon conclusion of the twelfth month of operation, Licensor shall have the right to unilaterally terminate the license agreement without cause by giving Licensee advance 30 days written notice of termination. Termination of the Agreement shall in no way prejudice any of the rights and remedies available to Licensor at law or in equity, and Licensee acknowledges and agrees that all of the obligations and responsibilities of Licensee under this Agreement shall continue and survive such termination. (d) Permitted Activities. Licensee is authorized to prepare the land to receive and store new vehicle inventory subject to securing all requisite governmental permits as noted above. Preparation of the site includes, but are not limited to, minor grading for earthen access ramp, creating a level useable 1.5 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 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. (e) Consideration/Fee for License. The Licensee shall pay to Licensor a monthly license fee thereafter totaling one thousand five hundred ($1,500.00) dollars per month beginning on March 1, 2011. Payment shall be made within five(5)days of the first of each month. Licensee's failure to pay license fee by the 10th day of the month will result in a late charge of 10%. License fee and other payments shall be paid by Licensee to Licensor at Licensor's notice address set forth herein. (f) County Property Encroachment Permit Provisions. Licensee shall be responsible Page 2 of 9 and will be accountable for, and shall comply with all terms, conditions, and provisions of the County Property Encroachment Permit, Section 2. Termination, Default, & Restoration of Land to Original Condition. (a)Termination Without Cause. As set forth in Section 1(c), this Agreement may be terminated by Licensor without cause upon expiration of the twelve month period of Licensee's usage of the Property for authorized permitted uses described in section 1(d). Licensee may terminate this Agreement without cause upon thirty (30) days notice to Licensor. (b) Default and Cure Provisions. In addition, Licensor shall have the right to terminate this Agreement upon Licensee's default. `Default" means the failure of Licensee to perform any term, condition, covenant or agreement of this Agreement, and the continuation of such failure for a period of ten (10) days after Licensor shall have given Licensee written notice specifying the same, or in the case of a situation in which the default cannot reasonably be cured within thirty (30) days, if Licensee shall not promptly, within thirty(30) 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, and diligently pursue the same to completion. In the event of any default by Licensee, including expiration of any applicable cure period, Licensor may terminate the Agreement by any lawful means available in law or equity. These same provisions shall apply in the event of default by Licensor. (c) Restoration of Land to Original Condition Upon License Termination. Upon termination of the Agreement, Licensee shall be responsible for removing all improvements it has placed upon the land in instituting its permitted uses, unless Licensor elects to accept some or all of said improvements. Any improvements accepted by Licensor, will be at no cost to Licensor. Licensee shall promptly initiate and exercise due diligence in removing said improvements until all improvements have been removed. Section 3. Compliance with Laws. Licensee's rights hereunder shall be conditioned upon, and Licensee shall, at its 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 Licensee any approvals normally required under the City's ordinances or local regulations. Any approvals normally required for any lighting, grading, drainage, or other issues shall be processed by Licensee and City as otherwise handled. Page 3 of 9 Section 4. No Duty to Warn. Licensor has no duty to inspect the Property and no duty to warn Licensee or any person of any other latent or patent defect, condition or risk that might be incurred in entering the Property. Licensee has inspected or will inspect the Property and hereby accepts the condition of the Property "As is." Licensee acknowledge that neither Licensee nor any employee, agent or representative of Licensee has made representations or warranties concerning the condition of the Property. All persons entering the Property under this License do so at their own risk. Section 5. Permits and A rovals- Standard of Work. At its sole cost and expense, Licensee shall obtain all governmental permits and authorizations required in order to engage in the Permitted Activities. Licensee shall comply, and shall cause its 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. Licensee shall indemnify, defend, protect and hold San Juan Capistrano Community Redevelopment Agency, its appointed officials and employees, 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 Licensee and/or its guests, invitees, agents, and representatives. Licensee 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 Licensee's rights-,under this Agreement, Licensee shall be responsible for any damage done to any person, or to the Property or any other Property, caused by Licensee, the officers, directors, employees, agents, independent contractors, insurers, lenders, representatives, successors or permitted assigns of Licensee, and the other users. Section 8. Insurance. 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 Vll or better. Page 4 of 9 i) Comprehensive Genera[ Liability. Throughout the term of this License, Licensee shall maintain in full force and effect Comprehensive General Liability coverage in the following minimum amounts: $1,000,000 property damage; $1,000,000 injury to one person/any one occurrence/not limited to contractual period; $2,000,000 injury to more than one person/any one occurrence/not limited to contractual period. ii) Proof of Insurance Requirements/Endorsement. Prior to beginning any work under this License, Licensee shall submit the insurance certificates, including the deductible or self-retention amount, and an additional insured endorsement to the Licensee's general liability and umbrella liability policies to the Licensor's General Counsel for certification that the insurance requirements of this License have been satisfied. iii) 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 San Juan Capistrano Community Redevelopment Agency, except that ten(10)days'notice shall be given if there is a cancellation due to failure to pay a premium. Section 9. Liens. Licensee 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. Licensee 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 Licensee fail either to discharge any lien or claim related to Licensee's 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's 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 Licensee 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. Page 5 of 9 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: To LICENSEE: San Juan Capistrano Hogan SRK Community Redevelopment Agency dba Capistrano Toyota•Scion Attn: Agency Executive Director Attn: Roger Hogan 32400 Paseo Adelanto 33395 Camino Capistrano San Juan Capistrano, CA 92675 San Juan Capistrano, CA 92675 Fax Number (949) 488-3874 Section 11. Entire Agreement. 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. 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. Successors and Assigns. Licensee may not assign any of its rights under this Agreement, either voluntarily or by operation of law,without Licensor's prior written consent. No assignment by licensee shall release Licensee from any liability under this Agreement unless otherwise provided by written agreement of the parties. Section 14. Governing Law. This Agreement shall be construed in accordance with and governed by the laws of the State of California. Section 15. Authority. Each signatory hereto warrants to the other party its authority to sign on behalf of the party for whom its purports to sign. Page 6 of 9 Section 16. Prior Licenses Terminated. All licenses, agreements or understandings between the Parties pertaining to the Property are hereby terminated. [Signatures on next page] Page 7 of 9 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date above first written. LICENSOR: Attest: San Juan Capistrano Community Redevelopment Agency, a public body corporate and politic Maria Morris, Agency Secretary Laura Freese, Agency Chair Approved as to Form: LICENSEE:: Hogan SRK dba Capistrano OA J6W Toyota-Scion Omar Sando al, Agency Counse ager Hogan, President Page 8 of 9 v t 3/Zf y S E,S� f ' Ot QL - o!� W �.++ c 4.I 7My � �¢ .M ", -4 3 ft 5 4 f 1� n� - r FaEms i �� M �wz "ay ymn M LOa go � SSS: ` i� N If."h,- 5 Q F v C) ER Map cu 11 B LL � too CL t— , U) Lq LLJ Q ; o -v a c� LICENSE AGREEMENT FOR TEMPORARY VEHICLE STORAGE THIS LICENSE AGREEMENT ("Agreement") is made and entered into as of September 4, 2047 by and between the San Juan Capistrano Community Redevelopment Agency, a public body corporate and politic, hereinafter, ("Licensorfi), and Superior Auto of SJC, LLC, dba, .Toyota/Scion of San Juan Capistrano, hereinafter, ("Licensee") sometimes referred to together; s 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 cif$tonel ill 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 121-243-15, hereinafter, ("Property'); and, WHEREAS, Licensee anticipates the development of permanent improvements at his auto dealership which will require the displacement of vehicle inventory during construction; and, WHEREAS, Licensee has a need for temporary storage yard for new vehicle inventory; and, WHEREAS, Licensee desires using portions of the Property and more particularly described in Exhibit "A" attached hereto and incorporated herein by reference, to facilitate the temporary storage of inventory, hereinafter, ("Permitted Activities") as described in Section 1 (d.) below;:and, WHEREAS, Licensor desires to grant Licensee permission to engage in said Permitted Activities upon its Property, subject to Licensee obtaining required City of San Juan Capistrano ("City") land use and CEQA environmental approvals, NOW THEREFORE, in con.s. ideratidn.:Of the mutual covenants and obligations of the parties herein contained, acid 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 Licensee and its representatives and agents a non-exclusive revocable license to enter upon the Property for "Permitted Activities" subject to the conditions set forth in this Agreement. This Agreement is intended to create a temporary license and shall not be deemed to create an easement, irrevocable license, lease or a fee interest in the Licensor's Property. Page 1,of 8 D - ATTACtf ENT3 (b) Planning Land Use Entitlements as Condition Precedent. The use of the property under the "permitted uses" provision of this Agreement is subject to Licensee obtaining a Use Permit and any other applicable applicable land use permits under City's zoning title of the Municipal Code. Further, Licensee shall be subject to compliance with the California Environmental Quality Act through the City's processing of the required land use entitlements applicable to the permitted uses authorized under this agreement. (c) Term of License Agreement. This Agreement shall take effect upon the date of approval first above written. Thereafter, Licensee shall have a period of one (1) year to secure applicable City land use approvals and other federal and state regulatory agencies, Licensee may request extensions of time from the Licensee's Agency Board based upon a showing of necessity for obtaining more time to complete regulatory processing requirements. The request for an extension of time shall not be unreasonably withheld. When Licensee has secured all necessary governmental approvals and completed the improvements necessary to initiate begin operation of permitted uses, the minimum period of time Licensee shall have to conduct the permitted uses shall be for a period of eighteen (18) months. Upon conclusion of the eighteenth month of operation, Licenser shall have the right to unilaterally terminate the license agreement without cause by giving Licensee advance 30 days written notice of termination. 'Termination of the Agreement shall in no way prejudice any of the rights and remedies available to Licensor at law or in equity, and Licensee acknowledges and agrees that all of the obligations and responsibilities of Licensee under this Agreement shall continue and survive such termination. (d) Permitted Activities. Licensee is authorized to prepare the land to receive and store new vehicle inventory subject to securing all requisite governmental permits as noted above. Preparation of the site includes, but are not limited to, minor grading for earthen access ramp, creating a level useable 4 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 vehicle inventories from 81:00 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 apermitted activity. (e) Consideration/Fee for License. lr consideration of improvements Licensee shall make to ready the Property for there shall be no license fee for the first 18 months. The Licensee shall pay to Licenser a monthly license fee thereafter of eight thousand ($8,000.00) dollars per month beginning on the first day of the 19th month, Payment shall be made within five (5) days of the first of each month, Licensee's failure to pay license fee by the '10th day of the month will result in a late charge of 10%. License fee and other Page 2 of 8 payments shall be paid by Licensee to Licensor at Licensor's notice address set forth herein. Section 2, Termination Default & Restoration of Land to Ori incl Condition. (a) Termination Without Cause. As set forth in Section 1(c), this Agreement may be terminated by Licensor without cause .UpoIn* piration of the eighteenth month period of Licensee's usage of the property for authorized permitted uses described in section I(d). (b) Default and Cure Provisions. In addition, Licensor shall have the right to terminate this Agreement upon Licensee's default. "Default" means the failure of Licensee to perform any term, condition, covenant or agreement of this Agreement, and the continuation of such failure for a period of ten (10) days after Licensor shall have given Licensee written notice specifying the same, or in the case of a situation in which the default cannot reasonably be cured within thirty (30) days, if Licensee shall not promptly, within thirty (30) 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, and diligently pursue the same to completion. In the event of any default by Licensee, including expiration of any applicable cure period, Licensor may terminate the Agreement by any lawful means available in law or equity. These same provisions shall apply in the event of default by Licensor. (c) Restoration of Land to Original Condition Upon License Termination. Upon termination of the Agreement, Licensee shall,be, responsible for removing all improvements it has placed upon the land in instituting its permitted uses, unless Licensor elects to accept some.or:all,of said improvements. Any improvements accepted by Licenser, will be at no cost to Licensor.,,;Licensee shall promptly initiate and exercise due diligence in removing said improvements until all improvements have been removed. Section 3. Compliance with Laws. Licensee's rights hereunder shall be conditioned upon, and Licensee shall, at its 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 City Parcel 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 City Parcel. Nothing herein shall be construed to gime Licensee any approvals normally required under the'City's ordinances or local regulations. Any approvals normally required for any ligating,.grading, drainage, or other issues shall be processed by Licensee and City as otherwise handled. Section 4. No Du to Wam. Licensor has no duty to inspect the Property and no duty to warn Licensee or any person of any ether latent or patent defect, condition or risk that might be incurred in entering the Property. Licensee has inspected or will inspect the Property and hereby accepts the condition of the Property "As is;" Licensee acknowledges that neither Licensee nor any employee, agent or representative of Licensee has made representations or warranties concerning the condition of the Property. All persons entering the Property under this License do so at their own risk. Section 5. Permits and A rovals' Standard of Work. At its sole cost and expense, Licensee shall.obtain all governmental permits and authorizations required in order to engage in the Permitted Activities. Licensee shall comply, and shall cause its agents and representatives to comply, with all lays, 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 8. Indemnification. Licensee shall indemnify, defend, protect and bold San Juan Capistrano Community Redevelopment Agency its appointed officials and employees, 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 Licensee and/or its guests, invitees, agents, and representatives, Licensee's 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 Licensee's rights under this Agreement, Licensee shall be responsible for any damage done to any person, or to the City Parcel or any other property, caused by Licensee, the officers, directors, employees, agents, independent contractor's, insurers, lenders, representatives, successors or permitted assigns of Licensee, and the other users. Section 8, Insurance. 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. Page 4 of 8 i) Comprehensive General Liability. Throughout the term of this License, Licensee shall maintain in full force and effect Comprehensive General Liability coverage in the following minimum amounts: $1,000,000 property damage; $1,000,000 injury to one person/any one occurrence/not limited to contractual period; $2,000,000 injury to more than one person/any one occurrencelnot limited to contractual period. ii) Proof of Insurance Requirements/Endorsement. Prior to beginning any work under this License, Licensee shall submit the insurance certificates; including the deductible or self-retention amount, and an additional insured endorsement to the Licensee's general liability and umbrella liability policies to the Licensor's General Counsel for certification that the insurance requirements of this License have been satisfied. iii) 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 San Juan Capistrano Community Redevelopment Agency, except that ten (10) days' notice shall be given if there is a cancellation due to failure to pay a premium. Section 9. Liens. Licensee 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. Licensee 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 Licensee fail.either to discharge any lien or claim related to Licensee's 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's 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` feesincurred in doing so shall be paid to Licensor by Licensee 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. Page 5 of 8 Section 10 Notices. Any notices required to be given under this Incense Agreement shall be sent to the following parties by either fax transmission or first class.mail postage prepaid as follows: To LICENSOR; To, LICENSEE: San Juan Capistrano Superior Auto of SJC, LLC Community Redevelopment Agency dba Toyota/Scion of San Juan Capistrano Attn: Redevelopment Manager Attn: Mike Kahn or Nick Konopisos 32400 Paseo Adelanto 610 Newport Center [give, Suite 840 San Juan Capistrano, CA 92675 Newport Beach, CA 92660 Fax Number(949) 488-3874 Fax Number (949) 467-2773 Section 11. Entire A*rcf eeaent. 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. 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. Successors and Asaigns. Licensee may not assign any of its rights under.this Agreement, either voluntarily or by operation of law, without San Juan Capistrano Community Redevelopment Agency's prior written consent. No assignment by Licensee shall release Licensee from any liability under this Agreement unless otherwise provided by written agreement of the parties. Section 14. Governing_Law. This Agreement shall be construed in accordance with and governed by the laws of the State of California. Section 15. Authority. 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) Page'fi of 8 IN WITNESS WHEREOF,the parties have executed this Agreement as of the date above first written. LICENSOR, Attest: Sart Juan Capistrano Community Redevelopment Agency, f k",-- . a public body corporate an otitic Ii.-M rg t R. Morahan, Agency S creta Ma Isen, Chair n Approved as to Form: LICENSEE: Superior Auto of SJC, LLC dba: Toyota/S n of San an Capistran John Sh w, Agency Counsel Mike Kah , President Page 7 of a Exhibit "A" DESCRIPTION OF PROPERTY UNDER LICENSE Portions of APN 121-240-73; 121-253-13 and 121-253-15 consisting of approximately 4.0 acres as identified on the attached site plan. Page 8 of 8 � � ..,r�- �� r �, fs _� .:.;, :eras•...,.of _�, y�„� ��� �`"!, ""., �. "� 3��.�,� ,. n, r � � 4n •, n r ,.....,ate v 4 r<�ro� � � �' � �`� Lower Rolan Rand 15.03 acre site f e� f $ v 'tt' � , ��'}�✓ �" , .gip ;�' ;�� •'` �:� s;;=� "` � �e` � g�sKe�,�b �w r ar ��' '�.._ € , eppr®ximate Area under License Agreement g ? tlx ®nehil ®CiVe �y Site Plan s `...: N✓ ll .':;,; "'�'?�?:r. .. ;;,. k:.t a4° :,r�„ LICENSE.AGREEMENT AMENDMENT This License Agreement Amendment is entered into this 41h day of March 2008, by and between the San Juan Capistrano Community Redevelopment Agency (hereinafter the "Licensor") and the Superior Auto of SJC, LLC, dba, Toyota/Scion of San Juan Capistrano, (hereinafter the "Licensee") sometimes referred to together as the ("Parties"), RECITALS Whereas, Licensor and Licensee have entered into a license agreement with respect to real property awned by Licensor on September 4, 2007 for temporary storage of vehicle inventory, and, Whereas, the Licensee must use a driveway over County of Orange (hereinafter "County") property to access the licensed property; and, Whereas, Licenser acquired an encroachment permit from the County to use the driveway for the purpose of the License Agreement (Exhibit A); and, Whereas, the Licensee has agreed to remain accountable for all terms, conditions, and provisions of the County Property Encroachment Permit attached as Exhibit A. NOW, THEREFORE, Licensor and Licensee agree that Licensee shall be responsible and remain accountable for the County Property Encroachment Permit provisions as set forth in Exhibit A and Section 1(f) is hereby added to the License Agreement to read as follows: 1(f). County Property, Encroachment Permit Provisions Licensee shall be responsible and will be accountable for, and shall comply with all terms, conditions, and provisions of the County Property Encroachment Permit_ attached and incorporated herein as Exhibit A. [Signatures appear on following page] ATTACHMENT 4 Licensor San Juan Capistrano Community Redevelopment Agency, a public body corporate and politic I I M rk ielsen, haima i Alt st: M&Qar Monahan, C rk Attest as to Form: Omar Sandoval, City Attorney! Licensee Superior Auto o SJC, LLC, i dbe,Toyc on of San Ju C istrano, LLC i 41 Mike Kahn, President i I Exhibit A County of Grange Encroachment Permit Provisions CC#NTY PROPERTY PfMIT nape I of 2 2007-01799 ENCROACHMENT PERMIT 2/5/2008 Ng.,And), 9.5'1:43Ahf County of Orange Permit No: 2007-01799 INSPECTION PHONE RESOURCES&1DEVE[,OPMENT MANAGEMENT DEPARTMENT County Property Permits Effective Date: 2/5/2008 714-567"-6243 Main Office: 3010 North Flower Street,Room 122 12:00:00AM Inspection office shall be notified at least Santa Ana,California 92703-5001 TWO(2)WORK DAYS PRIOR to or P.O. ox 4048Santa AnaCalifornia 92742 40148 Expiration Date: 8/5/2009 commencing permitted use.FAILURE . , , Iz:(}f)MAM TO OBTAIN INSPECTION SHALL (714)834-3432 or(714)834-5738 VOID THIS PERMIT Fax:(714)835-7425 PERMITTEE FACILITY City of San Juan Capistrano lypg Facility 32400 Paseo Adelanto SAN JUAN CREED.CHANNEL L0I San Juan Capistrano,CA 92675 949-443-6316 Contact Person Douglas Du han Telephone No. 949443-6316 IM-grcd CITY OF SAN JUAN CAPISTRANO EW in Memorandum Self EaRiM 0913012008 PERMITTED USE: t.fser of County property is hereby authorized as follows,subject to provisions attached hereto Temporary access within a portion of the Orange County Flood Control District's Sate Juan Creek Channel(1.01)service road right-of-way,to access adjacent private property to store new commerical vehicles, per attached plans and provisions and to the satisfaction of County's assigned inspection personnel. PERMITTED USE NOT EFFECTIVE UNTIL APPROVED BY ASSIGNED INSPECTOR. THIS PERMIT IS NOT RENEWABLE AND IS VALID FOR A MAXIMUM OF 18 MONT & Cl✓€jA Code 1 SWPPP: No LOCATION OF WORK: San Juan Creek Channel (LO 1)at Stonehill Drive,adjacent private properties parcel#121-253-13, 121-253-15, 1211-240-73 Dimensionfrype: temp access Thomas Brothers: 972;A4 Area: San Juan Capistrano CONSIDERATION: ;lQ PV of armit Etc SurrAy EMWIY Totsil Total Fees: 5,271.€10 FT EF68010 5,271.00(2074) 0.00(2091) 0.00 5,271.00 vm at ima check Becelpg RI& Amount Total Payment: 5X%.001 Check 005676 R0901369 2/5120018 5,171,00 Check 3141 R0717198 10/18/2007 100.00 PE ITTEE'S ACC ANCE: COUNT' APPROVAL: Uribe,Carolyn 012/05/2008 PERMIT ANIS APPROVED PLANS SHALL BE MAINTAINED ON JOB SITE.PERMITTEE SHALL COMPLY WITH REGULATIONS PRINTED ON REVERSE SIDE OF PERMIT AND ATTACHMENTS.ALL UNDERGROUND WORK REQUIRES PRIOR'UNDERGROUND SERVICE ALERT'COMPLIANCE.THIS PERMIT IS NON-TRANSFERABLE. Note:Surety will not be refunded until Final Inspection is performed and submitted to County Property Permits 6f ` � r RESO ES& DEVELOPMENT MANAGEME DEPARTMENT 0 COUNTY PROPERTY PERMITS M Road Encroachment Permit e e SPECIAL PROVISIONS Permit No. 2007.00413 By acceptance of this permit,permittee agrees to the following: 1. All Orange County Flood Control District (hereinafter "District") improvements disturbed, damaged, vandalized or removed as a result of Permittee's activities within, upon, under or over District Right-of-Way(ROW) shall be repaired, restored or replaced at Permittee's expense in conformance with Resources and Development Management Department (hereinafter "RDMD") Standard Plans and to the satisfaction of the Director of RDMD or his designee (hereinafter "Director") within sixty(60) calendar days of the issuance of written notice by Director. If Permittee fails to repair, restore or replace District's improvements within. 60 calendar days, Director may, in his sole and absolute discretion, cause the repair, restoration or replacement of District's improvements to be completed by District personnel or outside contractors and Permittee shall be solely responsible for these costs and expenses. Permittee agrees that in an emergency situation which threatens the public's health, safety or welfare as determined by Director in his sale and absolute discretion, Director shall be permitted to cause the repair, replacement or restoration of District's improvements without prior notice to Permittee and Permittee shall be solely responsible for the cost of such repair, restoration or replacement in accordance with the procedures described above. 2. Permittee agrees that if any of Permittee's improvements are disturbed, damaged or removed by District during the course of District's operating, maintaining, repairing, improving, restoring, or enlarging District's improvements within, upon, over or under District's ROW Permittee shall be responsible for replacing, repairing, restoring or removing Permittee's improvements to the satisfaction of Director solely at Permittee's expense within sixty(60) calendar days of receiving written notice from Director. 3. Permittee, its assigns or successors shall be solely responsible for time operation, maintenance, repair and/or replacement of Permittee's improvements within District ROW. 4. Permittee agrees that it shalt indemnify, defend with counsel approved in writing by District, and hold District, the County of Orange, their elected and appointed officials, Officers, employees agents and contractors (hereinafter "District/County Indemnitees") hannless from any and all liability for injury or damage to third persons or property arising; from Permittee's activities and/or improvements placed within, upon, under or over District's ROS' unless such injury or damage is caused by the gross negligence or willful misconduct of District, County or the District/County Indemnitees. 5. Permittee shall ensure that all laws and regulations are enforced and obeyed during event by Permittee and all participants. Pagel of 4 6. Permittee acknowledges that the improvements installed within District ROW approved under the provisions of the pernnit are non-transferable. Therefore, the Permittee agrees that upon sale or transfer of the subject property the Permittee shall be required to remove improvements installed within the District's ROW and restore the District's ROW to an acceptable pre-existing condition meeting the satisfaction of the assigned District inspector. If the Permittee's assign and/or successor desires to continue to operate and maintain the approved permit improvements,the assign and/or successor will be required to obtain a new approved encroachment permit from RDMD/Engineering and Permit Smices/County Property Permits. 7. Pertinent sections of the encroachment permit special provisions and other relevant documents will be recorded by the County Clerk -- Recorder. Notice is hereby given to future assigns or successors that the above captioned encroachment permit is non- transferable (OCCO Sec. 3-2-80). Permittee acknowledges Permittee's responsibility to remove the encroachment permit improvements installed within the District's ROW and restore the ROW to an acceptable pre-existing condition meeting the satisfaction of the assigned District inspector. Upon Permitter's successful completion of removing the encroachment permit improvements from District ROW to the satisfaction of the assigned District inspector the Permittee may request the County Clerk - Recorder remove the tneroachment permit special provisions and other relevant documents from the Permittee's property title pending receiving the District's written concurrence. In such cases, the Permittee will be financially responsible for any costs incurred by the County Clerk—Recorder for clearing the Permittee's property title. IF PERMITTEE'S ASSIGN OR SUCCESSOR DESIRES TO CONTINUE TO OPERATE AND MAINTAIN THE PERMIT IMPROVEMENTS WITHIN THE DISTRICT'S ROW REFERENCED IN THE ABOVE CAPTIONED ENCROACHMENT PERMIT, PRIOR TO THE TRANSFER OF PROPERTY PERMITTEE'S ASSIGN OR SUCCESSOR SHALL BE REQUIRED TO OBTAIN A NEW ENCROACHMENT PERMIT FOR THE IMPROVEMENTS AND SATISFY THE DISTRICT'S CURRENT ENCROACHMENT PERMIT CRITERION. 8. If at anytime, District intends to modify, enlarge, reconstruct, repair and/or replace District facilities, Permittee agrees to remove and/or relocate interfering portions of Permittee's improvements within sixty(60) calendar days of the date of District's written notification to Permittee. Upon receipt of written notification. from District, Permittee shall obtain an encroachment permit from District covering Permittee's plans to remove and relocate Permittee's interfering improvements. District agrees to expedite review of Permittee's encroachment permit application. Permittee shall be responsible for all financial charges associated with satisfying this permit special provision, If Permittee fails to remove its interfering improvements within the time period required, Director, in his sole and absolute discretion, may cause the removal of Perrnittee's interfering improvement to be completed by District staff or by outside contractor. Permittee agrees that it shall be solely responsible for the cost of such removal and shall reimburse District for all of its casts and expenses within sixty (60) calendar days of the mailing of an invoice by Director. Page 2 of 9. Nothing in this Permit is intended nor shall anything in this permit be construed to transfer to District or its successors and assigns or to relieve Permittee:or their successors and assigns or predecessors in title of any responsibility or liability Permittee now has, has had, or comes to have with respect to human health or the environment, including, but not limited to responsibility or liability related to hazardous or toxic substances or materials (as such terms as those used in this sentence are defined by statute, ordinance, case law, governmental regulation other provision of the law). Furthermore,District may exercise its right under law to bring action, if necessary, to recover clean up costs and penalties paid, if any, from Permittee or any others who are ultimately determined to have responsibility for said toxic or hazardous materials. 10.No construction materials are to be stored in a way that impedes and/or interferes with bikeway use, channel inspection or maintenance operations. 11. PERMITTEE ACKNOWLEDGES THAT IT SHALL BE RESPONSIBLE FOR OBTAINING ALL APPLICABLE REGULATORY PERMIT AGREEMENTS AND SATISFYING ALL RESOURCE AGENCY REQUIREMENTS, FURTHERMORE, PERMITTEE ACKNOWLEDGES THAT NEITHER THE COUNTY OF ORANGE NOR THE DISTRICT SHALL BE CO-NAMED IN ANY REGULATORY PERMIT AGREEMENTS OR OBLIGATED TO SATISFY ANY OF THE TERMS, CONDITIONS, PROVISIONS, MITIGATION, OR MONITORING REQUIRED BY THE RESOURCE AGENCIES VIA THE REGULATORY PERMIT AGREEMENTS. PERMITTEE SHALL, PROVIDE RDMDfENGINEERING AND PERMIT SERVICESICOUNTY PROPERTY PERMITS WITH COPIES OF ALL REGULATORY PERMIT AGREEMENTS AND CONDITIONS AND MAINTAIN COPIES AT THE .TOB SIVE FOR INSPECTION PURPOSES. 12.In the event of an emergency, the Permittee acknowledges that the District retains the right at the District's sole and absolute discretion to remove sediment and debris, perform channel repairs or conduct other maintenance activities within the approved permit area. In such cases, Permittee acknowledges that the District will not be required to restore the Permittee's approved improvements within the District's ROW, nor will the District be obligated to satisfy any of the Permittee's regulatory permit agreement terms, conditions or mitigation requirements. 13. Permittee shall provide emergency access to Police, Fire and District personnel during permit period. 14. District access gates are to be immediately locked upon entering or exiting District channel ROW. 15. Vehicular speeds on District access roads shall not exceed a maximum of 10 MPH. 16.Permittee acknowledges that the use of earthen District access roads is prohibited during rainstorm conditions or when the District's earthen access roads are wet.. When District's earthen access roads are wet the Permittee's access will be limited to pedestrian access only. IN CASES WHEN THE EAR'T'HEN ACCESS ROAD BECOMES WET, AUTHORIZED VEHICULAR ACCESS SHALL NOT BE COMMENCED PRIOR TO THE EARTHEN ACCESS ROAD DRYING SUFFICIENTLY TO THE Page 3 of SATISFACTION OF THE ASSIGNED DISTRICT INSPECTOR. ANY DAMAGE TO DISTRICT EARTHEN ACCESS ROADS CAUSED BY PERMITTEE'S MISUSE OF SUCH ROADS SHALL BE REPAIRED PROMPTLY BY PERMITTEE AT ITS SOLE EXPENSE. IF PERMITTEE FAILS TO PROMPTLY REPAIR DISTRICT'S EARTHEN ACCESS ROADS, DIRECTOR, IN HIS SOLE AND ABSOLUTE DISCRETION, MAY CAUSE THE REPAIR OF THE DISTRICT'S EARTHEN ACCESS ROAD TO BE COMPLETED BY DISTRICT STAFF OR BY OU'T'SIDE CONTRACTOR. PERMITTEE AGREES THAT IT SHALL BE SOLELY RESPONSIBLE FOR THE COST OF SUCH REPAIR.AND SHALL REIMBURSE DISTRICT FOR ALL OF ITS COSTS AND EXPENSES WITHIN SIXTY (60) CALENDAR DAYS OF THE MAILING OF AN INVOICE BY DIRECTOR. 17.Any violation of the permit provisions by Permittee shall he adequate cause for immediate revocation of the permit by District. 18.Permittee shall comply with the requirements of State, County, and City Water Quality Ordinances and shall implement Best Management Practices (BMP's) to prevent all materials, including debris associated with the proposed project, from entering into the channel and/or District maintained areas. 19. PERMIT IS 'V'ALID UNTIL AUGUST 5, 2009 AND WILL NOT BE RENEWED. AT THAT TIME PERMITTEE SHALL OBTAINED ALTERNATIVE ACCESS INTO PRIVATE PROPERTY. Signature: Date: �Print Name: Page 4 of 4 CWJNTY PROPERTY P IT Pale I of 2 2007-01799 ENCROACHMENT PERMIT 2/5/2003 higo,Andy S.fA'44AM County of Orange Permit No: 2007-01799 INSPECTION PHONE RESOURCES&DEVELOPMENT MANAGEMENT DEPARTMENT County Property Permits Effective Date: 2/Sl2D08 714-567-6243 Main:Office:300 North Flower Street,Room 122 12:00:00AM Inspection office shall be notified at least Santa Ana,California 92703-5001 TWO(2)WORK DAYS PRIOR to or P.Q.Box 404x;Santa Ana,California 92702-4048 Expiration bate: 8/5/2009 cointnencing permitted use.FAILURE 12:OO:OOAM TO OBTAIN INSPECTION SHALL (714)834-3432 or(714)834-5738 VOID THIS PERMIT Fax:(714)835-7425 PERMITTEE FACILITY City of San Juan Capistrano Tyne EldfiU]tilt [V� 32400 Paseo Adelanto SAN JUAN CREEK CHANNEL L01 San Juan Capistrano,CA 92675 '949443-6316 Contact Person Douglas Dumhart Telephone No. 949443-6316 LuAUrgd CITY OF SAN JUAN CAPISTRANO k'alicv Memorandum Self Expires 0913012009 PERMITTED USE: User of County property is hereby authorized as follows,subject to provisions attached hereto: Temporary access within a portion of the Orange County Flood Control District's San Juan Creek Channel(L01)service road right-of-way,to access adjacent private property to store new commerical vehicles, per attached plans and provisions and to the satisfaction ofCounty's assigned inspection personnel. PERMITTER USE NOT EFFECTIVE UNTIL APPROVED BY ASSIGNED INSPECTOR. THIS PERMIT IS NOT RENEWABLE AND 1S VALID FOR A MAXIMUM OF 18 MONTHS. CEQA Code I SWPPP: No LOCATION OF WORK: San Juan Creek Channel(L01)at Stonehill Drive,adjacent private properties parcel#121-253-13, 121-253-15, 1211-240-73 Dimonsion/Type: temp access Thomas Brothers: 972;A4 Area: San Juan Capistrano CONSIDERATION- Tyner PWO# Perrui s Surety Penalty 121 Total Fees; 5,271.40 FT EF68010 5,271.00(2074) 0.00(2091) 0.00 5,271.00 Payment Trost Check R Pau AM090 Total Payment. 100.00 Check 3141 80717198 101I$12007 100.00 Surety Paid By: TUF Invoice Paid By: PERMITTEE'S ACCEPTANCE: COUNTY APPROVAL: T DRAFT PERMIT AND APPROVED PLANS SHALL BE MAINTAINED ON JOB SITE. PERMITTEE SHALL COMPLY WITH REGULATIONS PRINTED ON REVERSE.SIDE OF PERMIT AND ATTACHMENTS.ALL UNDERGPOUND WORK REQUIRES PK[OR*UNDERGROUND SERVICE ALERT COMPLIANCE.THIS PERMIT IS NON-TRANSFERABLE. Note,Surety will not be refunded until Final inspection is performed and submitted to Conray Property Permits � STANDARD PROVISIONS T Fee attached and made part of Permit Number 2007-01799 1. Permits issued by this Department are pursuant to the authority vested by the Board of Supervisors for the County of©range,Orange County Flood Control District,any one or all of which are hereinafter referred to as County. 2. Permittee agrees to save County,its agencies,districts, etc.,including its officers,agents or employees,harmless from any and all penalties,liabilities or loss resulting from claims or court actions,arising directly out of any damage or injury to persons or property by reason of the acts or omissions of Permittee, its agents,employees or independent contractors in exercising any of the privileges herein granted or in consequence thereof. The Permittee shall file a written accident report with the County of Orange for any property damage,death or injuries on project site within 48 hours after such incident occurs. The accident report shall include,but is not limited to,the following information, if available: time and date,location,nature of accident,names of people injured,description of property damage,police report number,and description of job site condition at the time of accident. Failure to file an accident report shall be considered a violation of the permit provisions and may cause revocation of this permit. Accident report shall be filed with the Inspection section assigned to the project. Contact can be made at the following telephone numbers: 6 Permit Inspection 714 567-7804 1152 E.Fruit Street Santa Ana,CA 92702 Operations Inspection 714 567-6300 10852 Douglass Road Anaheim,CA 9281 3. Should any damage or injury to County works occur during initial use and/or as a result of this permitted use,either through the ads of agents,servants,or employees of Permittee or by any independent contractor of Permittee in the exercise of the rights herein granted, Permittee shall immediately,upon the written demand of County,restore such works to the condition of same on the date of the occurrence of said damage or injury at Pe€mittee's cost or expense. The question as to whether or not any such damage or injury has been caused to the works shall be determined by the Director of the Resources and Development Management Department and his determination shall be final. In the event repair by County is necessary, Permiftee shall pay County the cost of such repairs. 4. County reserves the right unto itself to perform any work,upon any portion or all of the area covered by this permit,or to do any other work necessary at any time. Such work may be performed without incurring any liability of any nature whatsoever to the Permittee. It is further understood and agreed that County reserves unto itself the rights of Ingress over all or any portion of the subject area. 5. Neither this permit nor any of the rights herein granted shall be assigned without the prior written approval of time County. 6. By acceptance of this permit, Permittee acknowledges and assumes all responsibility for compliance with requirements of other regulatory governing agencies including,but not limited to,zoning regulations,applicable ordinances and laws,etc.,of the County of Orange,the State of California,or others having regulatory control over the use granted herein, T A copy of this permit and approved plans,if applicable,shall be maintained at the site of work and be shown to any authorized representative of the County or other regulatory governing agency upon request. 8. No access or work shall be performed within County rights of way without the full knowledge of County's inspector,who shall be given not less than two work days'advance notice of the initiation of permitted use. Failure of Permittee to obtain inspection shalt void this permit and necessitate reapplication by Permittee, 9. This permit may be immediately revoked for reasons in the best interest of the County,including violation of permit provisions or other applicable rules and regulations or for the creation of a nuisance upon notice given by the Director of the Resources and Development Management Departrnent or authorized representative, In the event of such revocation, Permittee shall immediately cease alt operations and restore County right of way as directed by County's inspector. 10. Any construction performed within County properties shalt be in accordance with Orange County Resources and Development Management Department Standard Plans and established criteria. Any deviation must be specifically detailed and highlighted on plans in a manner meeting the approval of County Property Permits. No uses other than that as stated on this permit shall be exercised. Public right of way shall not be used for administrative operations or storage of equipment,materials,supplies,etc, > ADDITIONAL STANDARD PROVISIONS (Codified Ordinances,Title 6,Section 5-1.1,et seq.,of the County of Orange) TO BE ATTACHED TO AND MADE A PART OF PERMIT NO. 2007-01799 11. RIGHT OF WAY RESERVATIONS: The permission granted hereby extends only to those which the County of Orange has in the real property and no warranty of any kind is made hereby that the said County possessed any or all of the rights of title necessary for Permittee to accomplish work sander this permit,and Permittee is cautioned to satisfy itself that it has obtained all necessary rights or permits prior to commencement of work. This permit shall not constitute a grant of any interest in or to real property belonging to the County of Orange or any other person or entity. References to Director signify the Director, Resources and Development Management Department(RDMD),or his assignees. 12. WORKING HOURS: All work shall be performed within working hours of Orange County RDMD permit inspection group, unless prior arrangements have been made with the inspection group. 13. SURVEY MONUMENTS: It is imperative that Permittees NOTIFY THE SURVEY OFFICE,telephone 714-834-3102,of Orange County RDMD at least 48 hours prior to removing or replacing any Survey monuments. All monuments shall be replaced at Perrnittee's expense and MUST be replaced in kind within 0.01 feet of their original horizontal and vertical location,unless otherwise specified in uniting. CONSTRUCTION REQUIREMENTS 14. RESURFACING BY PERMITTEE OR COUNTY SPECIFICATIONS: Temporary patching of trench is required on lateral cuts in surfaced streets immediately after backfilling. Permanent pavement.shall be placed within thirty(30)working days after completion of backfilling operations. All excavations shall be backfilled or covered or otherwise protected,in a manner meeting the approval of the inspector,at the end of each work day.The inspector may require any pavement removal to be patched with temporary AC immediately after backfilling. Where pavement or surfacing has been removed by acceptable method,as determined by inspector,and trench edges sawed, Permittee shall replace it with a structural section the same as that removed plus an additional one inch(1')of AC. In no case shall the replacement structural.section be less than 5"ACtNS or 3"ACf6"PMB per Standard Plans. The inspector shall approve all structural sections prior to placement. Where Portland Cement Concrete pavement is removed or damaged,it shall first be sawed at excavation limits,providing distance to the next joint is more than five(5)feet away;if not,then it shall be removed to next joint without damaging;adjacent pavement and subsequently replaced with Portland Cement Concrete, 15. LOCATION OF PIPES AND CONDUITS: All pipes and conduits laid parallel to the roadway at least five(5)feet from edge of the pavement or graded traveled roadway,unless otherwise authorized in writing by the Director. 16, MINIMUM COVER. The uppermost portion of any pipeline or other facility shalt be installed NOT LESS THAN thirty(30)inches below the lowest portion of the roadway surface or ditch,unless otherwise authorized in writing by the Director. 17. STANDARD SPECIFICATIONS: Unless otherwise indicated on permit,all work shah be done in accordance with Orange County Resources and Development Management Department Standard Plans and the Standard Specifications for Public Works Construction latest issues. 18. COUNTY PROJECTS: This permit DOES NOT give Permittee permission to delay or interfere with the construction of Coonty projects. Installation shall be subject to the approval of and at the convenience of County's contractor. Prior to any excavation,written permission must be obtained from said contractor and presented to resident engineer,stating that installation will NOT DELAY or interfere with said contractor's operation. If permission is DENIED,then work shall be delayed until completion of said contract. 19. TUNNELING OR BORING: All improved streets,as shown on Master Plan of Arterial Highways, MUST be bored or tunneled. All boring, tunneling and placing conduits,casing and pipelines shall be done in such a manner that the existing driving lanes will NOT be disturbed, If a easing is installed to receive conduit or pipeline,all voids between casing and conduit shall be filled with grout or sand. Bore pit shall not encroach within five(5)feet from edge of pavement. 20. OPEN CUT METHOD: Open cutting of local streets may be permitted. NOT more than one-half(112)of the width of a traveled way shall be disturbed at one time and the remaining width shall be kept open to traffic. Two-way traffic shall be maintained on pavement at all times. A. Minimum clearance of two(2)feet adjacent to any surface obstruction and a five(5)foot clearance between excavation and traveled way shall be maintained. B. Backfill material shall be subject to RDMD inspectors approval prior to placement. RDMD inspector may require 2-sack cement slurry backfill. PERMANENT A.C. PATCH shall be placed within thirty(30)working days alter completion of backfilling operations. 21. COMPACTION: All backfill replaced in excavation within road right of way shall be compacted until relative compaction is NOT LESS than ninety percent(90%),as determined by the Relative Compaction Test as specified in the Orange County Resources and Development Management Department Standard Plans. PM8(aggregate base)shall be compacted to a relative compaction of NOT LESS than ninety- five percent(959A). CONTINUED After compt000n of backfill and compaction operations and before permanent paving is replaced,contractor shall call for compaction teats to be performed and shall provide for test holes at locations and as directed by the inspector. In lieu of test holes as specified above, contractor may elect to call for compaction tests in successive lifts of backfill not to exceed two(2)feet vertically in time each lift of backfill is placed and compacted. 22. REPLACING ENTIRE DRIVING ANO/OR BIKE LANE: If surfacing or pavement within driving lanes of a highway,as shown on the Master Plan of Arterial Highways or within a bikeway,is removed or damagod by Permitlee's operation,existing surfacing or pavement for width of the driving or bike lame and for the length of the damaged surfacing shall be removed and replaced to a distance of not less than one hundred(100)feet. Such removal and replacement shall be to the satisfaction of the Director. 23, OIL-MIXFD SHOULDERS: Improved oil-mixed shoulders are to be remixed to minimum depth of four(4)inches with an approved oil-mixing machine using approximately%gallon to 21/1 gallons of SC 800 per square yard as determined by the'Director. In lieu of the former,the entire width of the shoulder may be removed to a minimum depth of two(2) inches and replaced with a minimum of two(2) inches of AC_ 24. CONCRETE SIDEWALK OR CURB: All concrete sidewalks or curbs shall be saws-cut to the nearest control joint and replaced in conformance with applicable provisions of the Orange County Resources and Development Management Department Standard Plans and Standard Specifications for Public Works Construction. Sidewalk removal and replacement shalt be to the satisfaction of the Inspector. 25. CARE OF DRAINAGE: If the work herein contemplated shall interfere with established drainage,ample provision shall be made by the Permittee to provide for it,as may be required by the Director. All roadside drainage ditches shall be restored to original grades,and inlet and outlet ends of all culverts shall be left free and clear. 26. COMPLIANCE WITH TERMS OF PERMIT: Permittee shall not make or cause to be made any excavation,or construct,place upon, maintain,or leave any obstruction or impediment to travel,or pile or place any material in or upon any highway,under the surface of any highway,at any location or in any manner other than that described in application as approved by the Director,or contrary to terms of permit or of any provision of the Ordinance hereinbefore referenced. Permittee agrees that if installation of any nature or kind placed in the excavation,fill or obstruction,for which permit is issued,which shall at any time in the future interfere with use,repair,improvements,widening or change of grade of highway, Permittee or his successors or assigns,with ten(14)days after receipt of written notice from the Director to do so,at his om expense.,either remove such installation sof relocate to a site which may be designated by the Director. Permittee hereby agrees to do all work and otherwise comply with provisions of Orange County Codified Ordinances Title 6,Section 6-1-1, et seq.,as amended,terms and conditions of this permit,and ail appticable rules and regulations of the County of Orange. Alt work shall be performed in accordance with provisions of this Ordinance and of all applicable laws,rules and regulations of Orange County and to the satisfaction of the Director. After work has been completed,all debris and excess material from excavation and backfill operations shall be removed from right of way and the roadway left in a neat and orderly condition. All approaches to private driveways and intersecting highways and streets shall be kept open to traffic at all times. Excess materials which adhere to roadway surfacing,as a result of construction operations,shall be removed by approved methods to the satisfaction of the Director_ TRAFFIC 27. ARTERIAL HIGHWAY TRAFFIC LANES: Two-way traffic shall be maintained at all times.At no time between the hours of 7.00 a.m.and 8:30 a.m.and between the hours of 4:00 p,m.and 6,00 p.m.,Monday through Friday(excluding legal holidays),shall there be any obstruction of an arterial highway traffic lane. Said restriction shall apply to vehicles,equipment,material,traffic control devices, excavation,stockpile or any other form of obstruction. Any exceptions must be approved specifically by a traffic control plan and by County-designated Supervising Construction Inspector. 28. PROTECTION OF TRAVELING PUBLIC: Permittee shall take adequate precautions for protection of the traveling public. Barricades, flashing amber lights and warning signs,together with flagmen,when necessary,shall be placed and maintained in accordance with the Federal Highway Administration's Manual of Uniform Traffic Control Devices,2003 Edition,until the excavation is refilled,the obstruction removed,and roadway is safe for use of traveling public. The Director may specify,as a condition of the issuance of the permit,safety devices or measures to be used by Permittee,but failure of Director to so specify the devices or measures to be used shall not relieve Permittee of his obligation hereunder. Trenching for installation across any intersecting roadway open to traffic shall be progressive. NOT more than one-half(1/2)of the width of a traveled way shall be disturbed at one time,and the remaining width shall be kept open to traffic by bridging or backfilling. CONTINUED 29. SIGNALIZE©INTERSECTION: Permittee shall notify Orange County RDMD/TrafTic Section at 714-834.5861,at least 72 hours In advance of any excavation within one hundred(100)feet of a signalized intersection. Permittee and/or his contractor shall assume cost and responsibility for maintaining existing and temporary stectrical systems or any other item or portion of work,as may the deemed necessary or advisable for protection of highway and traveling public and payment of all costs incurred by the County of Orange in repairing facilities damaged during construction. Applicant shall immediately repair or replace any damaged traffic control devices and/or striping facilities. PPRMITTI VS OBLIGATION 30. RESTORATION: APPLICANT SHALL RESTORE THE ROADWAY TO ITS ORIGINAL OR BETTER CONDITION AND CAUSE ANY PERMANENT PAVING TO BE COMPLETER AS SOON AS POSSIBLE. Immediately upon completion of the work necessitating the excavation or obstruction authorized by any permit issued pursuant to the aforementioned Ordinance,Permittee shall promptly.and in a workmanlike manner,refill the excavation or remove the obstruction to the satisfaction of the Director. If Permittee fails or refuses to refill any excavation which he has made or romove any obstruction which he has placed on any highway,the Director may do so and Permittee shall promptly reimburse County the cost thereof. If any anytime subsequent to first repair of a surface of a highway damaged or destroyed by any excavation or obstruction in such highway, it becomes necessary again to repair such surface due to settlement or any other cause directly attributable to such excavation or obstruction,Permittee shall pay to County the cost of such additional repairs made by the Director. Cost shall be computed by the Director as provided in Section 6-3-47 or Section 6-3-49 of the aforementioned Ordinance,whichever,in the judgment of the director,wilt most fairly compensate County for expenses incurred by it. 31. PERMITTEE TO PAY DEFICIENCY. if any deposit is insufficient to pay all fees and costs herein provided,Permittee shall, upon demand, pay to the Director an amount equal to the deficiency. 32. EFFECT OF FAILURE.TO PAY COSTS OF DEFICIENCY: If Permittee,upon demand,fails to pay any deficiency as provided in Section 6.3-77 of the afflremeMioned Ordinance,or shalt fail to pay any other costs due County hereunder for which no deposit has been made, County may recover same by an action in any court or competent jurisdiction. Until such deficiency or costs are paid in full,a permit hereunder shall not thereafter be issued to Permittee. 33. TAXABLE:POSSESSORY INTEREST: Permittee acknowledges that a taxable possessory interest may have been created by this permit and that Permittee may be subject to payment of property taxes levied on such interest. (Reference is made to California Revenue and Taxation Code,Sections 107, 107.4 and 107.6.) 34. ADDITIONAL CAST: Any additional cost incurred by permittee incidental to this work NOT shown on the face of the permit,shall be borne by Permittee. 35. COMPLIANCE: Any CONDITIONS shown in regulations,attachments,and/or provisions of Codified Ordinance and all applicable laws, rules and/or regulations of Orange County or any other regulatory governing agency pertinent to work on the face of this permit MUST be complied with. Section 6424 of the California Labor Cade requires contractors planning excavation or trench work to obtain a permit for such work from the State of Califamia,Department of Industrial Relations, DIVISION OF INDUSTRIAL SAFETY. CONDITION:ORANGE COUNTY RESOURCES AND DEVELOPMENT MANAGEMENT DEPARTMENT DOES NOT PERFORM ANY INSPECTION UNDER THIS PERMIT PERTAINING TO THE PROTECTION ANIS SAFETY OF PERSONNEL.OR EQUIPMENT, THIS IS THE RESPONSIBILITY OF PERMITTEE, The Director may,either at the time of the issuance of the permit or at any time thereafter until completion of the work,prescribe such additional conditions as he may deem reasonably necessary for the protection of the highway or for the prevention of undue interference with traffic or to assure the safety of persons using the highway. The Permittee shall make proper arrangements satisfactory to the Director for and bear time cost of relocating any structure,public utility, tree or shrub where such relocation Is made necessary by the proposed work for which a permit is issued. Permittee is aware of Ordinance No. 2717 concerning the registration and disclosure of lobbyists. Rsvised 6toS/07 SECOND AMENDMENT TO THE LICENSE AGREEMENT FOR.TEMPORARY VEHICLE STORAGE This Second Amendment to the Temporary Vehicle Storage License Agreement is made and entered into, this 2�h day of February 2010, by and between the San Juan Capistrano Community Redevelopment Agency (hereinafter the "Licensor") and Hogan SKR dba, Capistrano Toyota Scion, (hereinafter the "Licensee") sometimes referred to together as the ("Parties"). RECITALS Whereas, On September 4, 2007, the Licensor and Superior Auto of SJC, LLC,dba, Toyota/Scion of San Juan Capistrano (hereinafter the `'Original Licensee") entered into a License Agreement (hereinafter "License Agreement") with respect to a portion of real property owned by Licensor(commonly referred to as"Lower Rosan Ranch"APN 121-240- 73, 121-253-13, and 121-253-15) for temporary storage of vehicle inventory; and, Whereas, Original Licensee is permitted to use approximately four(4) acres of the Lower Rosan Ranch property to store vehicles in accordance with the terms of the license agreement; and, Whereas, On November 4, 2008, the Agency consented to a request from the Original Licensee to assign the License Agreement to Mr. Roger Hogan, future successor- in-interest of the Toyota store to be called"Capistrano Toyota . Scion" hereinafter"Current Licensee"; and, Whereas, Current Licensee is utilizing approximately one and one half(1 '/2)acres of the permitted four (4) acres for the purpose of vehicle storage due to the economic downturn; and, Whereas, Current Licensee has requested a fee waiver for the period between February 1, 2010 and December 31, 2010; and, Whereas, it is in the best interest of the community to help facilitate longterm and profitable operations of the automotive industry which is the city's largest segment of sales tax generation; and, Whereas, the Agency agrees to reduce the license fee in lieu of a fee waiver. NOW, THEREFORE, in consideration of the foregoing recitals, the Parties hereby agree as follows: A. Section 1(e) "Consideration/Fee.for License" is amended to establish the monthly license fee of one thousand five hundred ($1,500.00) dollars per month from February 1, 2010 thru December 31, 2010, On January 1, 2011, the $8,000.00 monthly license fee shall be reinstated. Page 1 of 2 ATTACHMENT 5 B. All other terms and conditions of the said Original Agreement and its First Amendment shall remain in full force and effect. IN WITNESS WHEREOF, the Parties have executed this Amendment as of the date and year first written above. Licensor: San ,Juan Capistrano Community Redevelopment Agency, a public body corporate and politic Laura Freese, Chairman tees —j Maria rrl; Agency ecretary Approved as to Form: ar an vat,'Ag'en'cy'(junset Licensee: Hogan SKR dba, Capistrano Toyota Scion ager Hogan, President Page 2 of 2 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, Assigner 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,Assigner. 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. S. 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 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/ of 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 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 ]Larch 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 Q,,;, C6/y, Dave Adams, Executive Director Attest: �1 4 Me Mon han, Secretary Approved as to Form: Omar Sandoval, City Attorney . Assignment and Assumption of License Agreement Page 4 of 4 I PC RESOLUTION NO. 07-11-13-2 TEMPORARY USE PERMIT 07-008 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF SAN JUAN CAPISTRANO,CALIFORNIA,APPROVING TEMPORARY USE PERMIT (TUP) 07-008 AUTHORIZING THE DEVELOPMENT AND OPERATION OF A TEMPORARY VEHICLE STORAGE FACILITY ON FOUR (4)ACRES OF A FIFTEEN ACRE VACANT LOT FOR TOYOTA OF SAN JUAN CAPISTRANO ON PROPERTY OWNED BY THE SAN JUAN CAPISTRANO REDEVELOPMENT AGENCY (LOWER ROSAN RANCH) ASSESSOR PARCEL NUMBERS '121-253-13, 121-253-1 SAND 121-240-73 IN THE Cell (COMMERCIAL MANUFACTURING) ZONE Whereas, the San Juan Capistrano Redevelopment Agency adopted a resolution authorizing vehicle storage as a temporary permitted use in the CM zone; and Whereas,the San Juan Capistrano Redevelopment Agency has approved a license agreement with Toyota of San Juan Capistrano leasing four acres of a fifteen acre parcel for a temporary vehicle storage facility and associated improvements, and, Whereas, the temporary vehicle storage facility is consistent with the General Plan Quasi-Industrial designation and.CM (Commercial Manufacturing) zoning; and, Whereas, the temporary vehicle storage facility is consistent with provisions set forth in the San Juan Capistrano Municipal Code to include but not be limited to 9-3.305 Industrial Districts, 9-3.553 Temporary Uses and Structures, and 9-2.323. Grading Flan Review; and Whereas, the project was reviewed in compliance with the California Environmental Quality Act(CEQA) Guidelines and the City's Environmental Administrator has determined that the project is Categorically Exempt from CEQA pursuant to Section 15304(x) Minor Alterations to Land; and Whereas, the Planning Commission conducted a duly noticed public hearing on November 13, 2007 pursuant to Section 9-2.335 of the Municipal Cade, City Council Policy 5, and Planning Department Policy 510 to consider public testimony on the proposed .amendment and has considered all relevant public comments. NOW. THEREFORE, BE IT RESOLVED, that the Planning Commission of the City of San Juan Capistrano hereby approves Temporary Use Permit(TUP) 07-008 subject to conditions set forth in the attached Exhibit "A". ATTACHMENT PC Resolution-TUP 07-008 2 November 13, 2007 PASSE®, APPROVED AND ADOPTED this 13t� day of November, 2007, by the following vote: AWES: Chairman Cardoza, Commissioners Ratcliffe and Kerr NOES: None ABSTAIN: Commissioner Cohen ABSENT: Commissioner Neely Robert CWT0za, Chairman Grant Taylor, i;��etaryy 1 1 t i PLANNING COMMISSION RESOLUTION #: 07-11-13-2 EXHIBIT "A" CONDITIONS OF APPROVAL Project Case #: Temporary Use Permit(TUP) 07-008 Project Name: 'Toyota of San Juan Capistrano, Temporary Vehicle Storage Facility E APPROVAL DATE: November 13, 2007 EFFECTIVE GATE: November 13, 2007 EXPIRATION DATE: May 28, 2003 (unless license agreement extended) These conditions of approval apply to Temporary Use Permit (TUP) 07-008 that authorize development and operation of a temporary vehicle storage facility and associated improvements to include grading,drainage, paving,fencing and lighting on four(4)acres of a fifteen (15) acre parcel owned by the San Juan Capistrano Community Redevelopment Agency(Lower Rosan Ranch) in the CM(Commercial Manufacturing)zone,Assessor Parcel Numbers 121-253-13, 121-253-15 and 121-240-73), located north of Stonehill Drive, south of the Capistrano Valley Mobile Estates, between the OCTA railroad tracks and Orange County flood control channel. GENERAL CONDITIONS 1. Temporary Use Permit(TUP)07-008 authorizes development and operation of a temporary vehicle storage facility with applicable improvements on four(4) acres of a fifteen (15) acre vacant parcel on property identified as Assessor Parcel Numbers 121-253-13, 121-253-15 and 121-240-73 known as Lower Rosan Ranch in the CM (Commercial Manufacturing) zone. This project approval is based on and subject to the designs in the application materials submitted by Toyota of San Juan Capistrano and plans prepared by Toal Engineering. The Planning Commission approval includes and is limited to development and operation of a temporary vehicle storage facility on four(4) acres of land near Stonehill Drive as specified on the approved plans. Minor modifications to this project approval may be approved by the Planning Director pursuant to Section 9-2.303, Administrative approvals of Title 9, Land Use Code. 2, Approval of this application does not relieve the applicant from complying with other applicable Pederai, State, County or City regulations or requirements. 3. All plans, specifications, studies, reports, calculations, maps, notes, legal documents, and designs shall be prepared, signed, and stamped (when required) only by those individuals legally authorized to do so. Page 1 of 4 4. The applicant shall be responsible for informing all subcontractors, consultants, engineers, or other business entities providing services related to the project of their responsibilities to comply with these conditions of approval and all pertinent requirements in the Sari duan Capistrano Municipal Code, including the requirement that a business license be obtained by all entities doing business in the City. 6. The use shall meet the standards and shall be developed within the limits established bythe Municipal Code as related to emissions of noise, odor,dust,vibration,wastes,fumes,or any public nuisances arising or occurring incidental to the establishment or operation. 6. The applicant shall pay all fees at the time fees are determined payable and comply with all requirements of the applicable federal, state, and local agencies. The duty of inquiry as to such requirements shall be upon the applicant. 7. The applicable approvals and clearance from other departments and agencies shall be on file with the Building and Safety Department prior to issuance of any permits, final inspections, utility releases and/or release of securities, as specified in these conditions. Temporary Parking Lot 8. The applicant shall provide a four-inch (4")minimum aggregate base throughout the parking lot and vehicle circulation areas. 9. The project shall demonstrate compliance with parking lot illumination standards set forth in San Juan Capistrano Municipal Code Section 9-3.829,Tables 3-22 and 3-23. A photometric plan may be required that demonstrates the number of lights, lighting levels,shielding, pole detail and height and specifications of the light fixtures. 10. All excess soil shall be placed on the north side of the lease area and may be laid out into a berm not to exceed eight feet t 8) in height. Vehicle Delivery 11. There shall be no deliveries or parking of transport trucks on Stonehill Drive at any time. Deliveries shall be made on-site at the temporary lot or at the dealership location only. 12. Toyota shall as part of is expansion plans,demonstrate that all delivery trucks are unloading on the property and not on Camino Capistrano- Access Driveway 13, The driveway shall consist of asphalt finish and the asphalt area shall be less than 4,996 square feet in area. 14. Vehicle access clearance shall be and minimum of twenty-feet (20') clear and shall be reviewed and approved by the©range County Fire Authority (®CFA). 16, Prior to any extension to the eighteen (18) month license agreement, Toyota may be requested toinstall a curb-cut with driveway apron per City standards at Stone Hill Drive and the access driveway. Page 2 of 4 { Public Works 16, Prior to grading provide the Public Works Department with calculations demonstrating the existing eight-inch (8") water main running through the project site will withstand loads or provide improvement designs for the eight-inch (8") ACP to be protected by a load dispersion device to prevent damage.. Engineering & Building 17. Any drainage and/or storm drain improvements shall be reviewed and approved by the Engineering and Building Department. 18. The applicant shall comply with provisions set forth in the Water Quality Management Plan (WQMP) as approved by the City. Planning 19. The applicant shall comply with all provisions set forth in the San Juan Capistrano Community Redevelopment Agency (GRA) license agreement. 24_ Fencing material, height and proposed barb wire shall be subject to approval by the Planning Commission, 21, Prior to installation, identify the location of directional sign(s), provide elevations, specifications, and obtain a sign permit, 22. Prior to installation, identify any portable toilets, structures,utilities or other improvements on the plans. 23. No washing of vehicles or repair activities shall be permitted on the property at any time. 24. The site shall be maintained in a neat and clean condition free of litter at all tunes. Other than vehicles, no outside storage shall be permitted. 25. The vehicle inventory lot activities shall be limited to the hours of 8:DO am to 8:94 pm Monday through Saturday and 10:00 am to 5:44 pm Sundays and holidays, 26. Should transport trucks use the site they shall be limited to the hours of 8:00 am to 5:30 ptn Monday through Saturday with no access Sundays and holidays. Added by Planning Commission 11/13/07 27. Exterior lighting shall be turned off no later than 8:30 pm and shall not be turned on until sunrise daily. 28. The applicant shall implement erosion control measures on the earthen berm to include but not be limited to hydroseeding. 29, The applicant shall implement dust control measures to include but not be limited to watering the site daily. Page 3 of 4 Applicant Acceptance of onditions of Approval: E Applicant Sign ` re Cate Applicant's Name (Print Page 4 of 4 Ei `of F090BL raS Xbj 1�CcN3SHW1 dH OF �a� y CIVY OP SAN AJAK (APiB'MANQQ� x Cams 7$Y�l Ah r ( r i ti;?29.991 i1FMPkT�I bi ' 4.t..4 7 , f:f3Y 191' Sr1iV i€.htd 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 6:00 p.m. on Tuesday, February 15, 2011, in the City Council Chamber in City Hall, to consider: "Consideration of License Agreement for Temporary Vehicle Storage on Lower Rosan Ranch (TCAG, Inc., a California Corporation, and Hogan SRK dba Capistrano Toyota - Scion) (APN 121-240-73, 121-253-13 & 15)" — Item No. 136. 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, February 14, 2011, 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 Karisa Rojas-Norton, Administrative Specialist. You may contact that staff member at (949) 234-4572 with any questions. The agenda, including agenda reports, is available to you on our web site: . www.sanjuancapistrano.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: cityclerk sanjuancap istrano.orq. Maria Morris, CMC City Clerk cc: Roger Hogan, Capistrano Toyota - Scion; Christopher Cotter, TCAG, Inc.; Capistrano Valley Mobile Estates 32400 Pease€a Adel anto a San Juan C a isfj,,I o a Califi)rnia 92675 (949)493.E.171