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08-1104_SUPERIOR AUTO OF SJC DBA TOYOTA/SCION OF SJC_Agenda Report_B2 60o c, CRA. 2/2/2010 AGENDA REPORT B2 TO. Joe Tait, Executive Director FROM: Douglas D. Dumhart, Economic Development Manager SUBJECT: Consideration of Second Amendment to the License Agreement for Temporary Vehicle Storage on Lower Rosan Ranch (Hogan SKR dba Capistrano Toyota -Scion) (APN 121-24073, 121-253-13 & 15) RECOMMENDATION: By motion, approve the Second Amendment to the License Agreement by and between the San Juan Capistrano Community Redevelopment Agency and Hogan SKR dba Capistrano Toyota-Scion, SUMMARY; The Agency Board of Directors discussed various land use goals and objectives for Lower Rosan Ranch on July 3, 2007. The Board unanimously supported interim use of the property to aid the City's car dealers with their request for vehicle storage needs. To that end, the City Council adopted Resolution Number 07-08-07-08 on August 7, 2007, to permit the temporary storage of dealership inventories on the property for a period longer than 12 months. On September 4, 2007, the Agency Board of Directors approved a License Agreement with the Toyota dealership containing the terms and conditions for their use of a portion 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 Toyota made to the Property, no fee payment was required for the first eighteen months of the agreement. That eighteen month term has expired, and a monthly license fees of $8,000.00 is now required per the agreement terms. Toyota has made the January 2010 storage fee payment, and has submitted a written request provided as Attachment 7 requesting waiver of the storage lot fee for the remainder of 2010. Due to the deteriorating economic climate and declining automotive market, Toyota is utilizing less than half of the area stipulated in the terms of the agreement. Furthermore, Toyota has annual ongoing expenses associated with the temporary rental of security fencing, lighting, electricity and grounds maintenance. Staff finds a reduction of the monthly license fee warranted by the aforementioned conditions. Therefore, staff recommends amending the License Agreement to establish a reasonable monthly fee from February 1, 2010 to December 31, 2010. Agenda Report Page 2 February 2, 2010 BACKGROUND, On September 4, 2007, the San Juan Capistrano Community Redevelopment Agency ("Licensor") and Superior Auto of SJC, LLC, dba, Toyota/Scion of San Juan Capistrano ("Licensee") entered into a License Agreement ("Agreement") provided as Attachment 2. The relevant terms of the License Agreement are: 1. The initial period of use is for 18 months from the date of occupancy. Thereafter, the agreement may be terminated without cause by providing a 30 day notice of termination. Toyota is required to obtain applicable land use permits (e.g., Temporary Use Permit) from the City as a prerequisite to using the property. 2. Toyota is responsible for securing all permits, expenses, and temporary improvements to ready the property for vehicle storage. 3. Toyota shall pay no fee for the initial 18 months of use. Toyota will pay a fee of $8,000 per month thereafter. 4. Permitted activities are limited to the storage, transport drop-off and pick-up of vehicles. Hours of permitted activities are limited to 8:00 a.m. -- 8:00 p.m. Monday — Friday, 10:00 a.m. — 5:00 p.m. for Sundays and Federal Holidays. 5. Toyota will indemnify and insure the Agency and City in the amount of $2,000,000 per occurrence, and provide proof of insurance coverage through an endorsement. 6. Toyota shall not permit any contractors liens on the property due to temporary improvements made thereon. 7. Toyota shall remove all temporary improvements at the Agency's discretion. On March 4, 2008, the Board approved the First Amendment to the agreement which authorized staff to obtain an encroachment permit from the County of Orange ("County"). An encroachment permit was required because Lower Rosan Ranch was only accessible by a driveway located on County property, specifically the County's Flood Control District. A license amendment was necessary due to the County's policy which does not allow encroachment permits issued to private parties. Therefore, the Redevelopment Agency acquired the necessary permits and took on responsibility for all County permit provisions. Through the license amendment, the Licensee took on all accountability for the County's encroachment permit. On October 17, 2008, the Agency received written request from Superior Auto of SJC, LLC d.b.a. Toyota/Scion of San Juan Capistrano seeking the Agency's consent to Agenda Report Page 3 February 2, 2010 assign the License Agreement to Mr. Roger Hogan, future successor-in-interest of the San Juan Toyota store. The request was presented to the Agency Board on November 4, 2008, and the Board authorized the Executive Director to execute an Assignment and Assumption License Agreement provided as Attachment 3. A Second Amendment to the License Agreement provided as Attachment 4 has been prepared to reduce the monthly license fee and help facilitate a long term profitable operation for one of the City's largest municipal revenue producer. COMMISSION/BOARD REVIEW AND RECOMMENDATIONS: NIA FINANCIAL CONSIDERATIONS: The License Agreement identified a monthly license fee of eight thousand ($8,000.00) dollars per month to begin on the first day of the 19th month (January 2010) after all necessary governmental approvals and completed improvements necessary to begin operation of permitted uses. The Second Amendment to the License Agreement would reduce monthly license fee to $1,500. NOTIFICATION: Roger Hogan, Capistrano Toyota-Scion RECOMMENDATION: By motion, approve the Second Amendment to the License Agreement by and between the San Juan Capistrano Community Redevelopment Agency and Hogan SKR dba Capistrano Toyota-Scion. Respectfully submitted, Prepared by: Xixt Douglas D. Dumhart Joan Ross Economic Development Manager Administrative Coordinator Aftachment(s): 1. Letter from Capistrano Toyota Scion dated January 5, 2010 2. License Agreement for Temporary Vehicle Storage 3. Assignment and Assumption Agreement for Temporary Vehicle Storage 4. Second Amendment to the License Agreement for Temporary Vehicle Storage CAPSTKANO JAN - 7 2010 TOYOTA January 5, 2010 Mr. Douglas Dumhart Economic Development Manager City of San Juan Capistrano 32400 Paseo Aldelanto San Juan Capistrano, CA 92675 Dear Mr. Dumhart, Enclosed you will find the license fee in the amount of$8,000.00 for the month of January 2010. We make this payment in good faith per the assumed License Agreement for Temporary Vehicle Storage. As you are aware, this agreement was made during much different market conditions and long before the current economic collapse we presently find ourselves in. It would be very much appreciated if the City of San Juan Capistrano waived the license fees due for this storage lot for the remainder of 2010, enabling Capistrano Toyota to stay ahead of the economic downturn, which in tarn will ensure a long and profitable endeavor for the business and the City of San Juan Capistrano. Respectfully submitted, CAPISTRANO TOYOTA Roger oga "� --- - President RH/ge 33395 Camino Capistrano San Juan Capistrano, CA 92675 (949) 493-4100 E-mail. sales@capistranotoyotoscion.com Fax: (949) 276.8104 www.capistranotoyotascion.com ATTACHMENT 1 LICENSE AGREEMENT FOR TEMPORARY VEHICLE STORAGE THIS LICENSE AGREEMENT ("Agreement") is made and entered into as of September 4, 2007 by and between the San Juan Capistrano Community Redevelopment Agency, a public body corporate and politic, hereinafter, ("Licensor"), and Superior Auto of SJC, LLC, dba, Toyota/Scion of San Juan Capistrano, hereinafter, ("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 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 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 8 ATTACHMENT 2 (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, 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 small 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. ©n-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. In 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 Licensor 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 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 eighteenth month period of Licensee's usage of the property for authorized permitted uses described in section 1(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 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 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 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 8 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 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-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 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'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 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 wide 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 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 8 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 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 Drive, Suite 840 San Juan Capistrano, CA 92675 Newport Beach; CA 92660 Fax Number (949) 488-3874 Fax Number (949) 467-2773 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 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 6 of 8 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 publiW61air itic R. Monahan, Agency Ma Approved as to Form: LICENSEE: Superior Auto of SJC, LLC dba: ToyotCofSann Capistran JohVShw, ency Counsel Mike Kah , President Page 7 of 8 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 44x .�� 4 �,,:.�-: ..;w,;.. Y'x'qCE•.: �� Y.:.'ks � �:, _:,,.�, 4". 3 <s,.�t�.xF 'S� ""-yjPi�.' Ti."+ 'Vii. b-1, fe x ' h `Yd}iT i r 4' l 3.i a_ r � Lower s a c s15.03 acre site k E � Y il ! 1 t„y 3 � ':, ..... ... :-�. „4�',u is"."�:5� «� 'c�rs®a< .a;:.r :m y m ss.:u,3.. ���- -�`%.� � rr=• ,.4�'4', 33kk��� I �Y �b �• C t i W ` f E+ all Drive+ .%. � a; a :yam, F - .. ,' � s f c r�4 E E. �'� �- ; tea`' s ^�rdS � sb i� arp ✓fh s 5 a,..= a5,; a: E f �- S; -�' •t�.- 1.:.,r, Y �:z°�` s�.�.z '"srs�a nq�r _ �' I ,r 5 � .,y �,. S .: .:: 4 n,.,33sinq„f;, rr >se5 r✓ -i :);_�-..�i �:...2 � � „a.:fs.t' ° (✓z f 1 ° (1 ra(�.rf,'.: r `ten ¢y,;:, ::#.✓ r aF t 'qRN , "�>..e. E« ira:.J.�..,, �..'`:�£r:!,!.>s Aa:l�Gs�". o `1:�.1;;1. .,t n .a�s%`rsF,zt;.:. <3n ����sup:.. ��ck;; :�: *a".fie.,•°fv7a 'v,e ���.,:..,, ' ,..�s"t�a��� �' .,.ft, ;t:,... ASSIGNMENT AND ASSUMPTION OF LICENSE AGREEMENT FOR TEMPORARY VEHICLE STORAGE This Assignment and Assumption of License Agreement for Temporary Vehicle Storage ("Assumption Agreement") is entered into as of November 4, 2008 by and among SUPERIOR AUTO OF SJC, LLC d.b.a. Toyota/Scion of San Juan Capistrano ("Assignor"), and HOGAN SKR, a California Corporation ("Assignee"), with reference to the following: Whereas, on September 4, 2007 the Assignor entered into the License Agreement for Temporary Vehicle Storage, as amended on March 4, 2008 (License Agreement) with the San Juan Capistrano Community Redevelopment Agency (Agency) for Assignor's use of certain unimproved real property located between the Orange County Transportation Authority railroad tracks and the Orange County flood control channel and north of Stonehill Drive in the City of San Juan Capistrano, County of Orange, State of California, commonly referred to as APN 121-240-73; 121-253-13, and 121-253-15; Whereas, Section 13 of said License Agreement provides that Assignor may not assign any of its rights under the License Agreement except with the written consent of the Agency, Whereas, Assignor has requested the Agency's consent to assign the License Agreement to Assignee pursuant to this Assumption Agreement, NOW, THEREFORE, in consideration of the above-referenced facts and the covenants of the parties contained below in this Assumption Agreement, and for other good and valuable consideration, the receipt and sufficiency of which the parties hereby agree as follows: 1. Assignment and Assumption. Assignor hereby assigns and transfers to Assignee, as of the Closing Date, as defined in that certain Asset Purchase Agreement between Assignor and Assignee dated October 13, 2008 (Effective Date), all of Assignor's right, title and interest in, to and under the License Agreement, and Assignee hereby accepts from Assignor all of such right, title and interest, upon the terms and conditions set forth in this Assumption Agreement. In the event there is no Closing, as defined in the Asset Purchase Agreement between Assignor and Assignee, this Agreement shall be null and void. 2. Assumption of Obligations. Assignee hereby expressly and unconditionally assumes and agrees to perform and fulfill, from and after the Effective Date, all the duties, terms, covenants, conditions and obligations required to be fulfilled and performed by Assignor after the Effective Date under the License Agreement. Assignment and Assumption of License Agreement Page 1 of 4 ATTACHMENT 3 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 Assi nor. 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.interpreted under,and glaw. This Assumption Agreement shall be governed by, construed and enforceable in accordance with the laws of the State of California. 9. Counterparts. This Assumption Agreement may be executed in multiple counterparts (each of which is to be deemed an original for all purposes). Assignment and Assumption of License Agreement Fuge 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 S C Hogan SKR dba Toyota/S ' of S an Capistrano A California Corporation By Mike Kahn, President Roger Hogan, 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 March 4, 2008, and maintained as a public record in the office of the Secretary of the Agency and City Clerk of the City of San Juan Capistrano, California, Superior Auto of SJC, LLC ("Assignor') may assign its right, title and interest in and to, and all obligations under said License Agreement, subject to the Agency's consent. By its signature below, the Agency hereby consents to the foregoing Assignment and Assumption Agreement whereby Assignor has assigned its right, title and interest in and to, and all obligations under the terms of the Agreement to Assignee, and Assignee has expressly and unconditionally assumed same. Provided, however, that in the event there is no Closing, as defined in the Asset Purchase Agreement between Assignor and Assignee identified in the foregoing Assumption.Agreement, this Consent shall be null and void. SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY, a public body corporate and politic November 4, 2008 Dave Adams, Executive Director Attest: JMeg Secretary Approved as to Form: 4AC Omar Sandoval, City Attorney Assignment and Assumption of license Agreement Page 4 of 4 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 t 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 long-term 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 4 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 Attest. Maria Morris, Agency Secretary Approved as to Form: ar an a 6 vai, Agency Counsel Licensee: Hogan SKR dba, Capistrano Toyota Scion --Roger Hogan, President Page 2 of 2 ['YFY (W 5AW RIAN i APISSRAW)�; OP SAN' WAN CAVISIRA, � � d19L(]Hi3Kp Rnlcrciv,^mfa R�rs'Y.. i i C 7............. ............. e , 1tt`4;I47H'k"1 SN#13; 41� i4€NfIHfl434 NOTIFICATION OF MEETING OF POTENTIAL INTEREST SAN JUAN CAPISTRANO REDEVELOPMENT AGENCY The Board of Directors of San Juan Capistrano Community Redevelopment Agency will meet at 6:30 p.m. on Tuesday, February 2, 2010, in the City Council Chamber in City Hall, to consider: "Consideration of Second Amendment to the License Agreement for Temporary Vehicle Storage on Lower Rosan Ranch (Hogan SKR dba Capistrano Toyota Scion)(APN 121-240-73, 121-253-13 & 15)" — Item No. 132. 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 1, 2010 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 Joan Ross, Administrative Coordinator. You may contact that staff member at (949) 443-6315 with any questions. The agenda, including agenda reports, is available to you on our web site: www.sannivancapistrano.org. If you would like to subscribe to receive a notice when agendas are posted to the web site, please maize that request by sending an e-mail to: cityclerk __sanjuancapistrano.org. Maria Morris Acting City Clerk cc: Roger Hogan, Capistrano Toyota Scion 3140011nseoAddaoto San Juan Capistrano a Cafitbris W675 (M))493.1171 3 �}�A FFaSE€3 AE7EL ANTC9 MEMBERS OF THE CITY COUNCIL SAN JUAN CAPISTRANO,CA 92675 ' (9,49)493-1171 � L SAM ALL�vATo (949)493-1053 FAXe i1C¢flF¢AR1f¢ LAURAEREESE THOMAS W.HREBAR ia,tivA�saiijuaneoprstrcxno.org 1776 MARK NEELSEN DR.LONDRES UBO TRANSMITTAL To: Roger Hogan Capistrano Toyota President 33395 Camino Capistrano San Juan Capistrano, CA 92675 DATE: April 14, 2010 FROM: Christy Jakl, Deputy City Clerk (949) 443-6310 RE: Second Amendment to the License Agreement for Temporary Vehicle 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 terra 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 Douglas Dumhart, Economic Development Manager at (949) 443-6316. Cc: Douglas Dumhart, Economic Development Manager San ,Jua n Caj-7istrano: nese vin- the Past to `;,ih ince the Future Printed on 1 DD recyni©d paper Today's Date: January 21, 2010 y rY 1 C CONTRACT TRANSMITTAL CIP No, (if any): Project Manager's Last Name: Douglas Dumhart Phone Extension: X 6316 Council or CRA Meeting Date (if applicable): 02/02/10 APPROVING AUTHORITY: (Check One) Mayor CRA Chair Executive Director Provide (1) executed original contract for each signing party, including the Agency. 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: (Not necessary if information is included in the contract) Names Street C ity St Zip Capistrano Toyota-Scion, Attn; 33395 Camino Capistrano San Juan Capistrano CA 92675 Roger Hogan OTHER INSTRUCTIONS: 1. Please return a copy of executed agreements for our files. Christy Jakl From: Christy Jakl Sent: Friday, April 09, 2010 11:23 AM To: Douglas Dumhart Cc: Lori Fuentes Subject: RE: Toyota/Scion 2nd Amendment Importance: High Hi Douglas, I wanted to send you a quick reminder that our office has not received the Insurance Certificate for your 2nd Amendment to the License Agreement for Temporary Vehicle Storage with Mr. Hogan (Capistrano Toyota). Before we can finish executing the agreement we will need updated insurance documents as stated in original contract. Please let me know if you have any questions. Kindest Regards, �. Christi Jakl Deputy City Clerk City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 (949) 443-6310 1 (949) 493-1053 fax ................... ..._. . . From: Christy Jakl Sent: Monday, February 08, 2010 11:55 AM To: Douglas Dumhart Cc: Joan Ross; Maria Morris Subject: RE: Toyota/Scion 2nd Amendment Hi Douglas, This is just the endorsement. We need the insurance Certificate stating coverage. Please let me know if you have any questions. Thanks! Chrisl-� Jakl Administrative Specialist, City Clerk's Office City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 (949)°443 631p „„(949) 493 1053 fax _. _ ......... ____.� . .._._...... .,w..,...., �:�..� ._, , .................. From: Douglas Dumhart Sent: Monday, February 08, 2010 10:46 AM To: Christy Jakl Cc: Joan Ross; Maria Morris Subject: RE: Toyota/Scion 2nd Amendment h ri sty' The License is no longer with Superior. The current Licensee Capistrano Toyota has provided insurance. Douglas From. Christy Jakl Sent: Monday, February 08, 2010 9.21 AM To: Douglas Duhart Cc; Joan Ross; Maria Morris Subject. Toyota/Scion 2nd Amendment Good Morning Douglas, Our office will need to receive an update Certificate of Insurance for Superior Auto Group/Toyota Scion prior to fully executing the contract. Attached is the last Certificate we have received. You have provided a copy of the Garage Liability Endorsement but we will need the Certificate with the Garage Liability with a minimum coverage of $1,000,000. Once the certificate is received we will send out the agreement. Please let me know if you have any questions. Thank you! Christi JAI Administrative Specialist, City Clerk's Office City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 (949) 443-6310 1 (949) 493-1053 fax 2