15-0616_IMPERIO MOTORS, LLC_License AgreementLICENSE AGREEMENT
FOR TEMPORARY VEHICLE STORAGE
THIS LICENSE AGREEMENT ("Agreement") is made and entered into as of June ,
2015, by and between the City of San Juan Capistrano, a California municipal corporation
("Licensor"), Imperio Motors, LLC dba Imperio Nissan of San Juan Capistrano, ("Nissan Licensee")
and Komex Motors, LLC dba Imperio KIA of San Juan Capistrano ("Kia Licensee" and, together
with the Nissan Licensee, the "Licensees"). The City and Licensees are sometimes referred to
together herein as the "Parties."
WITNESSETH
WHEREAS, Licensor is the owner of certain unimproved real property located between the
Orange County Transportation Authority railroad tracks and the Orange County flood control
channel and north of Stonehill Drive in the City of San Juan Capistrano, County of Orange, State of
California, commonly referred to as APN 121-240-73; 121-253-13, and 121-253-15, hereinafter,
("Lower Rosan Site"); and
WHEREAS, Licensees have a need for a temporary storage yard for vehicle inventory; and
WHEREAS, Licensees desire to use portions of the Lower Rosan Site and more particularly
described in Exhibit "A" attached hereto and incorporated herein by reference ("Property"), for the
temporary storage of inventory for the automobile dealerships operated hy Licensees, as described in
more detail in Section 1(d) below (referred to herein as the "Permitted Activities"); and
WHEREAS, Licensor desires to grant Licensees permission to engage in said Permitted
Activities upon the Property, subject to Licensees obtaining the Required Approvals described
below; and
NOW THEREFORE, in consideration of the mutual covenants and obligations of the parties
herein contained, and for other good and valuahle consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
Section 1. Establishment of License Provisions.
(a) Grant of License. On the terms and subject to the conditions set forth in this
Agreement, Licensor hereby grants to Licensees and their representatives and agents a non-exclusive,
revocable license to enter upon the Property for the sole purpose of conducting the "Permitted
Activities" described in Section 1(d) below. This Agreement is intended to create a temporary
license and shall not be deemed to grant or convey an easement, irrevocable license, lease or fee
interest in the Licensor's Property.
(b) Planning and Land Use Entitlements; Covemmental Approvals as Condition
Precedent. The use of the property by the Licensees for Permitted Activities pursuant to this
Agreement is subject to Licensees obtaining a Temporary Use Permit and any other applicable land
use peiTnits required under the San Juan Capistrano Municipal Code (collectively, "City Approvals"),
including compliance with the California Environmental Quality Act ("CEQA"), and any other
required approvals from federal and state regulatory agencies (together with the City Approvals and
CEQA compliance, the "Required Approvals"). Licensees shall be solely responsible for any costs
associated with the obtaining of required permits and the City's compliance with CEQA.
(c) Term of License Agreement. This Agreement shall take effect upon the date of
approval first above written and shall terminate two (2) years thereafter, unless earlier terminated as
provided in Sections 2(a) or 2(b) below.
(d) Permitted Activities. Licensees are authorized to prepare the land to receive and store
new vehicle inventory subject to securing all Required Approvals as noted above. Preparation of the
site includes, but is not limited to, minor grading for earthen access ramp, creating a level useable 2
acre pad, and proper drainage. Temporary improvements include, but are not limited to, gravel base
for inventory parking area and access ramp, security fencing and limited lighting, and minor
directional signage for delivery personnel. On-going operational activities are limited to the
transport, drop-off and pick-up of new vehicle inventories from 8:00 am to 8:00 pm Monday through
Sundays and Federal Holidays. Large transport vehicle drop-off activity on-site shall be limited to
the hours between 8:00 am to 5:30 pm Monday through Saturday only. No transport deliveries shall
occur on Sundays or Holidays. Dealership preparation, wash down and/or detailing is not a
permitted activity. The use is exclusively limited to the storage of new vehicle inventory; no other
use, including storage of used vehicle inventory or storage of vehicles being held for repair or
service, is permitted.
(e) Consideration/Fee for License. The Licensees shall pay to Licensor a license fee
totaling two thousand dollars ($2,000.00) per month from the effective date through November 30,
2015, from December 1, 2015 through May 31, 2016 Licensees shall pay to Licensor a license fee
totaling three thousand dollars ($3,000.00) per month, and thereafter totaling three thousand five
hundred dollars ($3,500.00) per month through the remaining term of the Agreement which shall be
split equally between the Licensees as follows:
Time period
Nissan
Licensee
KIA
Licensee Total
Effective Date through November 30, 2015 $1,000.00 $1,000.00 $2,000.00
December 1,2015, through May 31, 2016 $1,500.00 $1,500.00 $3,000.00
June 1, 2016, through the end of the Agreement $1,750.00 $1,750.00 $3,500.00
Payment shall be made on the first day of each month. Licensees' failure to pay license fee by the
10th day of the month will result in a late charge of 10% of the late payment amount. License fee
and other payments shall be paid by Licensees to Licensor at Licensor's notice address set forth
herein.
Section 2. Termination, Default. & Restoration of Land to Original Condition.
(a) Termination Without Cause. This Agreement may be terminated by Licensor without
cause by giving ninety (90) days written notice to Licensees. Either of the Licensees may terminate
its participation in this Agreement without cause by giving ninety (90) days written notice to
Licensor.
(b) Default and Cure Provisions; Termination For Cause. In addition to the rights
described in Section 2(a), Licensor shall have the right to terminate this Agreement immediately
upon Licensees' Default. "Default" means the failure of Licensees to perform or violation of any
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term, condition, covenant or agreement of this Agreement, and the continuation of such failure or
violation for a period of ten (10) days after Licensor shall have given Licensees written notice
specifying the same, or in the case of a situation in which the default carmot reasonably be cured
within ten (10) days, if Licensees shall not promptly, within ten (10) days after receipt of such notice,
commence to remedy the situation hy a means that can reasonably be expected to remedy the
situation within a reasonable period of time, not to exceed thirty (30) days from the notice of Default,
and diligently pursue the same to completion. In the event of any Default by Licensees, including
expiration of any applicable cure period, Licensor may terminate the Agreement and remove
Licensees and their property from the Property by any lawful means available in law or equity.
(c) Restoration of Land to Original Condition Upon License Termination. Upon
termination of the Agreement, Licensees shall be responsible for removing all improvements the
Licensees placed upon the land, unless Licensor elects in writing to accept some or all of said
improvements. Any improvements accepted by Licensor will be at no cost to Licensor. Licensees
shall promptly initiate and exercise due diligence in removing said improvements until all
improvements have been removed, which shall be completed within not more than thirty (30) days
following termination of this Agreement.
(d) Effect of Termination. Termination of this Agreement shall in no way prejudice any
of the rights and remedies available to Licensor at law or in equity, and Licensees acknowledge and
agree that all of the obligations and responsibilities of Licensees under this Agreement shall continue
and survive such termination.
Section 3. Compliance with Laws.
Licensees' rights hereunder shall be conditioned upon, and Licensees shall, at their sole cost
and expense, comply with each and every federal, state and local law, regulation, standard, court
decision, ordinance, rule, code, order, decree, directive, guideline, permit and permit condition,
together with any declaration of covenants, conditions and restrictions that are recorded in any
official or public records with respect to the Property or any portion thereof, each as currently
existing and as amended, enacted, issued or adopted from time to time, that are applicable to the
construction and use of the parking lot on the Property. Nothing herein shall be construed to give
Licensees any approvals normally required under the City's ordinances or local regulations,
including the City Approvals. Without limiting the generality of the foregoing, any approvals
normally required for any lighting, grading, drainage, or other issues shall be processed by Licensees
and City pursuant to City's normal procedures and the Municipal Code.
Section 4. No Dutv to Warn.
Licensor has no duty to inspect the Property and no duty to warn Licensees or any person of
any other latent or patent defect, condition or risk that might be incurred in entering the Property.
Licensees have inspected or will inspect the Property and hereby accept the condition of the Property
"AS IS.'" Licensees acknowledge that neither Licensor nor any employee, agent or representative of
Licensor has made representations or warranties concerning the condition of the Property. All
persons entering the Property under this Agreement do so at their own risk.
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Section 5. Permits and Approvals; Standard of Work.
At its sole cost and expense, Licensees shall obtain all Required Approvals required in order
to engage in the Pennitted Activities. Licensees shall comply, and shall cause their agents and
representatives to comply, with all laws, codes, rules, regulations and permits applicable to the
Permitted Activities. All Permitted Activities shall be performed in accordance with the highest
standards and practices in the industry.
Section 6. Indemnification.
Licensees shall indemnify, defend, protect and hold the City of San Juan Capistrano and its
elected and appointed officials and employees, and any of their agents harmless from and against all
claims, causes of action, damages, losses, liabilities, costs and expenses (including, without
limitation, reasonable attorneys' and consultants' fees and costs) caused by or arising in connection
with the Permitted Activities and the entry onto the Property hy Licensees and/or their guests,
invitees, agents, and representatives. Licensees' indemnification and defense obligations pursuant to
the foregoing shall apply to, without limitation: (i) personal injury, property damage and nuisance;
(ii) any liens, claims, demands, actions or suits arising from the Permitted Activities; and (iii) any
costs of enforcement of any provision of this Agreement.
Section 7. Liabilitv for Damage.
With respect to Licensees' rights under this Agreement, Licensees shall be responsible for
any damage done to any person, or to the Property or any other property, caused by Licensees, their
officers, directors, employees, agents, independent contractors, insurers, lenders, representatives,
successors or permitted assigns of Licensees, and the other users.
Section 8. Insurance Coverage Required.
Lach Licensee shall maintain in effect during the entire term of this Agreement each of the
following:
A. Comprehensive General Liability Insurance which affords coverage including
completed operations and contractual liability, with limits of liability of not less than $2,000,000 per
occurrence and $4,000,000 annual aggregate for liability arising out of Licensee performance of this
Agreement. The limits shall be provided by either a single primary policy or combination of
policies. If limits are provided with excess and/or umbrella coverage the limits combined with the
primary will equal the minimum limits set forth above. If written with an aggregate, the aggregate
shall be double the each occurrence limit. Such insurance shall be endorsed to:
(1) Name the City of San Juan Capistrano and its employees,
representatives, officers and agents (collectively hereinafter "City and City Personnel") as additional
insured for claims arising out of Licensees' performance of this Agreement.
(2) Provide that the insurance is primary and non-contributing with any
other valid and collectible insurance or self-insurance available to City.
A statement on an insurance certificate will not be accepted in lieu of the actual endorsement.
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B. Automobile Liability Insurance with a limit of liability of not less than
$1,000,000 each occurrence and $2,000,000 annual aggregate. The limits shall be provided by either
a single primary policy or combination of policies. If limits are provided with excess and/or
umbrella coverage the limits combined with the primary will equal the minimum limits set above.
Such insurance shall include coverage for all "owned," "hired" and "non-owned" vehicles, or
coverage for "any auto." Such insurance shall be endorsed to:
(1) Name the City and City Personnel as additional insured for claims
arising out of Licensee performance of this Agreement.
(2) Provide that the insurance is primary and non-contrihuting with any
other valid and collectible insurance or self-insurance available to City.
A statement on an insurance certificate will not he accepted in lieu of the actual endorsement.
C. Workers' Compensation Insurance in accordance with the Labor Code of
California and covering all employees of the Licensee providing any service in the performance of
this agreement. Such insurance shall be endorsed to: Waive the insurer's right of Subrogation
against the City and City Personnel.
A statement on an insurance certificate will not be accepted in lieu of the actual endorsement.
D. Lvidence of Insurance: Licensee shall provide to City a Certificate(s) of
Insurance evidencing such coverage together with copies of the required policy endorsements at least
fifteen (15) business days prior to the expiration of any policy. Coverage shall not be suspended,
voided, cancelled, reduced in coverage or in limits, non-renewed, or materially changed for any
reason, without thirty (30) days prior written notice thereof given hy the insurer to City by U.S. mail,
or by personal delivery, except for nonpayment of premiums, in which case ten (10) days prior notice
shall be provided.
Signed insurance certificates, endorsements and the general liability declaration page must be
sent via email from Licensee's insurance broker/agent to the City at mmorris@sanjuancapistrano.org.
Certificate Holder:
City of San Juan Capistrano, California
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
L. Lndorsements: A statement on an insurance certificate will not he accepted
in lieu of the actual endorsement. Insurance policies shall not be in compliance if they include any
limiting provision or endorsement that has not been submitted to the City for approval.
Additional Insured Lndorsements shall not:
1. Be limited to "Ongoing Operations"
2. Lxclude "Contractual Liability"
3. Restrict coverage to the "Sole" liability of Licensee
4. Contain any other exclusion contrary to the Agreement.
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F. Acceptability of Insurers. Fach policy shall be from a company with current
A.M. Best's rating of A VII or higher and authorized to do business in the State of California or
approved in writing by the City.
Section 9. Fiens.
Ficensees shall not permit to he placed against the Property, or any part thereof, any design
professionals', mechanics', materialmen's, contractors' or subcontractors' liens due to Ficensee's
construction activities thereon or use thereof. Licensees shall indemnify, defend and hold Licensor
harmless from all liability for any and all liens, claims and demands, together with the costs of
defense and reasonable attorneys' fees, related to same.
In addition to and not in limitation of Licensor's other rights and remedies under this
Agreement, should Licensees fail either to discharge any lien or claim related to Licensees'
construction activities on or use of the Property or to bond for any lien or claim to the reasonable
satisfaction of Licensor, or to indemnify, hold harmless and defend Licensor from and against any
loss, damage, injury, liability or claim arising out of Licensee use of the Property, then Licensor, at
its option, may elect to pay any lien, claim, loss, demand, injury, liability or damages, or settle or
discharge any action or satisfy any judgment and all costs, expenses and attorneys' fees incurred in
doing so shall be paid to Licensor hy Licensees upon written demand, together with interest thereon
at the rate of ten percent (10%) per annum from the date incurred or paid through and including the
date of payment hy Licensee.
Section 10. Notices.
Any notices required to be given under this License Agreement shall be sent to the following
parties hy either fax transmission or first class mail postage prepaid as follows:
Section 11. Lntire 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.
To LICLNSOR: To LICLNSLLS:
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Attn: Karen Brust, City Manager
Imperio Motors, LLC
dba Imperio Nissan of San Juan Capistrano
33633 Camino Capistrano
San Juan Capistrano, CA 92675
Attn: Tommy Morgan
Komex Motors, LLC
dba Imperio KIA of San Juan Capistrano
33011 Camino Capistrano
San Juan Capistrano, CA 92675
Attn: Tommy Morgan
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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. Assignment.
Licensees may not assign any of their rights under this Agreement, either voluntarily or by
operation of law.
Section 14. Governing Law.
This Agreement shall be construed in accordance with and governed by the laws of the State
of California.
Section 15. Authority.
Lach 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]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date above first
written.
Attest/ '"X
Maria Mo (Oil
y C erk
Approved as to Form:
LICENSOR:
City of San Juan Capistrano,
a California municipal corporation
Derek Reeve, Mayor
LICENSEE:
Imperio Motors, LLC
dba Imperio Nissan of San Juan Capistrano
LICENSEE:
Komex Motors, LLC
dba Imnerio KIA of San Juan Capistrano
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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.
A-1
EXHIBIT A - Page 1 of 2
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