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HomeMy WebLinkAbout1 - DDA CREVIER BMW AND MINI AT SA AUTO MALLREQUEST FOR COUNCIL/ AGENCY ACTION MEETING DATE: JUNE 22, 2011 TITLE: AMENDED DISPOSITION AND DEVELOPMENT AGREEMENT AND ASSIGNMENT AND ASSUMPTION AGREEMENTS FOR CREVIER BMW AND MINI AT THE SANTA ANA AUTO MALL �. CITY MANAGER J11TERIM EXECI} VE DIRECTOR RECOMMENDED ACTION CITY COUNCIL ACTION CLERK OF COUNCIL USE ONLY: APPROVED El El CONTINUED TO As Recommended As Amended Ordinance on 1 st Reading Ordinance on 2nd Reading Implementing Resolution Set Public Hearing For FILE NUMBER Adopt resolution making certain findings with respect to an Amended Disposition and Development Agreement for Crevier BMW and Mini at the Santa Ana Auto Mall. COMMUNITY REDEVELOPMENT AGENCY ACTION Adopt a resolution approving an Amended Disposition and Development Agreement for Crevier BMW and Mini at the Santa Ana Auto Mall. 2. Authorize the Executive Director and Agency Secretary to execute the attached Assignment and Assumption Agreement by and among PAG Santa Ana B1, Inc., a Delaware corporation ( "Assignee "), and Santa Ana Properties, LLC, a California limited liability company ( "Assignor ") for property located at 1500 Auto Mall Drive, including Agency consent and estoppel, subject to non - substantive changes approved by the Executive Director and Agency General Counsel. 3. Authorize the Executive Director and Agency Secretary to execute the attached Assignment and Assumption Agreement by and among PAG Santa Ana B1, Inc., a Delaware corporation ( "Assignee "), and Santa Ana Properties II, LLC, a California limited liability company ( "Assignor ") for property located at 1455 Auto Mall Drive, including Agency consent and estoppel, subject to non - substantive changes approved by the Executive Director and Agency General Counsel. 1 -1 Joint — Crevier BMW and Mini June 22, 2011 Page 2 DISCUSSION On July 19, 2004, the Community Redevelopment Agency (Agency) approved a Private Disposition and Development Agreement (DDA), and on April 18, 2005 a First Implementation Agreement, with Donald J. Crevier, as trustee of the Donald Crevier Trust, and Crevier Motors Inc. (Developer) for an approximate 4.23 acre expansion of the existing BMW /Mini Dealership at the Santa Ana Auto Mall. Additionally, the Agency entered into a DDA on March 17, 1997 for the sale of property for the construction and operation of the Jaguar dealership. The dealership has since closed and the property was purchased by Crevier last year for its Mini dealership. Crevier is currently negotiating the sale of its BMW & Mini dealerships, including Auto Mall properties, to the Penkse Automotive Group, which transaction requires certain Agency /City approvals. Specifically, Crevier is requesting the City's /Agency's approval in assigning all Developer and Assignor's right, title and interest in, under and to the DDA and First Implementation Agreement for 1500 Auto Mall Drive (existing Crevier BMW /Mini site) and for 1455 Auto Mall Drive (proposed Mini site) from Santa Ana Properties, LLC (also includes Donald J. Crevier, as Trustee of the Donald J. Crevier Trust and Crevier Motors, Inc.) to PAG West, LLC. The Penske Group will keep Crevier BMW (and its dealership name) at its present location and as intended by Crevier will complete the move of Mini over to the 1455 Auto Mall Drive site (Exhibit 1). Additionally, the DDA scope and schedule are being updated to reflect current conditions and requirements. As called for in the original Scope of Development for the Crevier expansion, 4.23 acres was conveyed and merged with existing 5.11 acres, and a substantial portion of the scope was completed, resulting in a significant increase in sales, generating much needed sales tax revenues for the city. Of the three phases in the DDA, Phase 1 (6 -tier parking structure) and associated site work was completed as well as a portion of Phase II that included storm drain installation, roadway dedication and improvement for the right hand turn lane on outbound Auto Mall Drive at Edinger Avenue, as well as common area landscaping along Auto Mall Drive and Edinger (exclusive of one brick paver area) and new auto mall entry-way monument sign. With the previous downturn in the economy and to allow Crevier time to explore various expansion options, the remaining portion of Phase II and all of Phase III were put on hold, and the Phase II portion of the property was temporarily improved for the parking of vehicles. The outstanding items from the scope of development for the property involve the construction of new showroom and office area for BMW dealership, the renovation /construction of a new Mini showroom, services, parts and office addition to the existing Crevier building, including all associated site work. However, with Crevier's recent purchase of the prior Jaguar facility at 1455 Auto Mall Drive, the provision for a new Mini showroom will be accomplished (3.2 acres, 30,298 square foot new dealership including showroom, offices, parts storage, and vehicle services), leaving BMW on -site with enough building space of its own. Thus, the scope is being revised to reflect this as well as ensure that Penske will improve the BMW site's temporary surface lot by 1 -2 Joint — Crevier BMW and Mini June 22, 2011 Page 3 raising the existing grade and providing landscaping and lighting improvements consistent with municipal code and other pertinent requirements and standards. Both Crevier and Penske are valued members of Santa Ana's business community, very reputable and community- oriented companies, and great assets to the Auto Mall. Penske owns Commonwealth Audi/VW and is in the process of relocating Audi into its own facility at the former Kia site, across from its current location. The project includes building renovation and a 10,000 square foot expansion. The Penske Group has also leased and is in the process of enhancing /expanding the former Saturn site for Commonwealth Audi/VW. Given the importance of this transaction to the City and the pending state threat to Redevelopment Agencies which could eliminate our ability to take action, it was necessary to call a special session of the Council /Agency to ensure escrow closure in early July. ENVIRONMENTAL COMPLIANCE In accordance with the California Environmental Quality Act, the proposed project is exempt from further review pursuant to Section 15061(b)(3), which is a general rule exemption applying to projects that have no possibility of having a significant effect on the environment. As this project consists of the assignment of an existing agreement to a new party, no effects on the environment will occur. Therefore, Categorical Exemption Environmental Review No. 2011 -51 will be filed for this project. FISCAL IMPACT There is no fiscal impact associated with this action Sandi Gottlieb Redevelopment Project Manager Community Development Agency NTE/VU /SG /mlr Exhibits: 1. Site Map 2. Council Resolution 3. CRA Resolution 4. Amended DDA 5. Assignment/Assumption Agreement — 1500 Auto Mall Drive 6. Assignment/Assumption Agreement — 1455 Auto Mall Drive 1 -3 1 -4 WILSHIREAV. Dealer Parking 2 AC. *(1305) SANTA ANA AUTO MALL SITE MAP Parking x(13 5) P6AC g q.T& pC FC0, x(1325) SF 6Cp IV A U pi Taw Vacant �� /� JL \3.38 5C .j(. (1405) O p * Address on Auto Mall Drive EXHIBIT 1 1 -5 r w = Saab 3.99 AC. (1330) VW /Audi F (Proposed) 3.0 AC. *0350) BORCHARDAV. DAN GURNEY C Volvo 5.02 AC. (1400 5. Dan Gurney Dr.) JL \3.38 5C .j(. (1405) O p * Address on Auto Mall Drive EXHIBIT 1 1 -5 1 -6 RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA CONSENTING TO ASSIGNMENT OF A PRIVATE DISPOSITION AND DEVELOPMENT AGREEMENT AND APPROVING AN AMENDMENT TO THE PRIVATE DISPOSITION AND DEVELOPMENT AGREEMENT BETWEEN THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA AND PAG SANTA ANA B1, INC. MAKING CERTAIN OTHER FINDINGS IN CONNECTION THEREWITH WHEREAS, the Community Redevelopment Agency of the City of Santa Ana ( "Agency ") entered into that Private Disposition and Development Agreement with Donald J. Crevier, as Trustee of the Crevier Trust and Crevier Motors, Inc., a corporation duly organized under the laws of the State of California, dated as of July 19, 2004, (the "Original Developer "), a copy of which is on file with the Agency, pursuant to which the Original Developer was to develop the Property located at 1500 Auto Mall Drive ( "Property "); and WHEREAS, the Agency and the Original Developer entered into that certain First Implementation Agreement, dated April 18, 2005; and WHEREAS, the Agency has concurrently herewith consented to an assignment of the Original DDA by Original Developer to PAG Santa Ana 131, Inc., a Delaware corporation ( "PAG "); and WHEREAS, the Agency and PAG now desire to amend the terms of the Original DDA as implemented by the First Implementation Agreement (collectively, the "Original DDA ") by modifying the Scope of Development and Schedule of Performance in accordance with the Amendment to the Private Disposition and Development Agreement ( "Amendment ") substantially in the form submitted herein (the Original DDA and Amendment are referred to herein as the "DDA, as amended "); and WHEREAS, the Agency has duly considered all terms and conditions of the Amendment and believes that the DDA, as amended is in the best interest of the Agency and the City of Santa Ana and the health, safety, and welfare of its residents, and in accord with the public purposes and provisions of applicable State and local laws requirements; and WHEREAS, the Developer has submitted to the Agency and the City Council of the City of Santa Ana ( "City Council ") copies of the DDA; as amended; and WHEREAS, all actions required by all applicable law with respect to the Amendment have been taken in an appropriate and timely manner; and EXHIBIT 2 DOCSOC/1495410v3/200272 -0006 1-7 WHEREAS, the Agency and the City Council have duly considered all the terms and conditions of the Amendment and believes that the redevelopment of the property pursuant to the DDA, as amended in the best interests of the City of Santa Ana and the health, safety, and welfare of its residents, and in accord with the public purposes and provisions of applicable state and local laws and requirements; and WHEREAS, the Agency is a community redevelopment agency duly organized and existing under the California Community Redevelopment Law, Health and Safety Code Section 33000, et seq. ( "CRL "), and has been authorized to transact business and exercise the power of a redevelopment agency pursuant to action of the City Council; and WHEREAS, the boundaries of the South Main Street Redevelopment Project (the "Project Area ") were duly established by various ordinances of the City Council, which ordinances approved a redevelopment plan. The Property is located within the South Main Street Redevelopment Project Area, which is now part of the Agency's Merged Project Area ( "Redevelopment Plan "); and for the South Main Street Redevelopment Project, ( "Redevelopment Plan "); and WHEREAS, Agency is vested with the power to implement the Redevelopment Plan and to carry out the goals and objectives of the Redevelopment Plan, including without limitation the goals and objectives adopted by the Agency's implementation plan ( "Implementation Plan ") pursuant to the CRL; and WHEREAS, the Agency is authorized and empowered by the CRL to enter into agreements for the acquisition, disposition and development of real property and otherwise to assist in the redevelopment of real property within a redevelopment project area in conformity with a redevelopment plan adopted for such area, to acquire real and personal property in redevelopment project areas, to receive consideration for the provision by the Agency of redevelopment assistance, to make and execute contracts and other instruments necessary or convenient to the exercise of its powers, and to incur indebtedness to finance or refinance redevelopment projects; and WHEREAS, PAG is a Delaware corporation duly organized, in good standing and qualified to do business under the laws of the State of California and experienced in the acquisition, construction, development, and operation of auto dealerships; and WHEREAS, in accordance with the California Environmental Quality Act ( "CEQA "), the proposed project is exempt from further review pursuant to Section 15O61(b)(3) of CEQA, which is a general rule exemption applying to projects that have no possibility of having a significant effect on the environment. As this project consists of the assignment of an existing agreement to a new party and a reduction in Scope of Development, no effects on the environment will occur. Therefore, Categorical Exemption Environmental Review No. 2011 -51 will be filed for this project; and WHEREAS, the Agency has adopted an Implementation Plan pursuant to CRL Section 33490, which sets forth the objectives of the Redevelopment Plan; and 2 DOCSOC/1495410v3/200272 -0006 1-8 WHEREAS, on June 22, 2011, the Agency considered the Amendment in at a public meeting in accordance with applicable law, at which time the Agency reviewed and evaluated all of the information, testimony, and evidence presented; and WHEREAS, the City Council has previously determined, in its adoption of the ordinance approving the Redevelopment Plan, that the Property, which is the subject of the DDA, as amended, is blighted; and WHEREAS, the DDA, as amended will assist in the elimination of blight by providing for the development and operation of a car dealership on the Property. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Santa Ana as follows: Section 1. Each of the foregoing recitals is true and correct. Section 2. The City Council hereby consents to the assignment of the Original DDA by Original Developer (and its affiliate Santa Ana Properties, LLC, a California limited liability company) to PAG Santa Ana B1, Inc., a Delaware corporation. Section 3. The City Council hereby finds and determines that the DDA, as amended is consistent with the provisions and goals of the Implementation Plan and hereby approves the Amendment. Section 4. In accordance with CEQA, the proposed Amendment is exempt from further review pursuant to Section 15061(b)(3) of CEQA, which is a general rule exemption applying to projects that have no possibility of having a significant effect on the environment. As this Amendment consists of the assignment of an existing agreement to a new party and a reduction in scope of development, no effects on the environment will occur. Therefore, Categorical Exemption Environmental Review No. 2011 -51 will be filed for this project. Section 5. The City Council acknowledges that the governing board of the Agency may authorize the Executive Director of the Agency (or his/her duly authorized representative) on behalf of the Agency, to implement the DDA, as amended, and make revisions to the DDA, as amended which do not materially or substantially increase the Agency's obligations thereunder or materially or substantially change the uses or development permitted on the Site, to sign all documents, to make all approvals and take all actions necessary or appropriate to carry out and implement the DDA, as amended and the administer the Agency's obligations, responsibilities and duties to be performed under the DDA, as amended and related documents. [Signature page follows] DOCSOC/1495410v3/200272 -0006 1-9 ADOPTED this day of , 2011. Miguel A. Pulido Mayor APPROVED AS TO FORM: By: AYES: Councilmembers: NOES: Councilmembers: ABSTAIN: NOT PRESENT: Councilmembers: Councilmembers: CERTIFICATION OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the City Council, do hereby attest to and certify the attached Resolution No. 2011- to be the original resolution adopted by the City Council of the City of Santa Ana on 52011. Date: DOCSOC/ 1495410v3 /200272 -0006 Clerk of the City Council City of Santa Ana 4 1 -10 RESOLUTION NO. A RESOLUTION OF THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA CONSENTING TO ASSIGNMENT OF A PRIVATE DISPOSITION AND DEVELOPMENT AGREEMENT AND APPROVING AN AMENDMENT TO THE PRIVATE DISPOSITION AND DEVELOPMENT AGREEMENT BETWEEN THE AGENCY AND PAG SANTA ANA B1, INC. AND THE AGENCY MAKING CERTAIN OTHER FINDINGS IN CONNECTION THEREWITH WHEREAS, the Community Redevelopment Agency of the City of Santa Ana ( "Agency ") entered into that Private Disposition and Development Agreement with Donald J. Crevier, as Trustee of the Crevier Trust and Crevier Motors, Inc., a corporation duly organized under the laws of the State of California, dated as of July 19, 2004, (the "Original Developer "), a copy of which is on file with the Agency, pursuant to which the Original Developer was to develop the Property located at 1500 Auto Mall Drive ( "Property "); and WHEREAS, the Agency and the Original Developer entered into that certain First Implementation Agreement, dated April 18, 2005; and WHEREAS, the Agency has concurrently herewith consented to an assignment of the Original DDA by Original Developer to PAG Santa Ana 131, Inc., a Delaware corporation ( "PAG "); and WHEREAS, the Agency and PAG now desire to amend the terms of the Original DDA as implemented by the First Implementation Agreement (collectively, the "Original DDA ") by modifying the Scope of Development and Schedule of Performance in accordance with the Amendment to the Private Disposition and Development Agreement ( "Amendment ") substantially in the form submitted herewith (the Original DDA and Amendment are referred to herein as the "DDA, as amended "); and WHEREAS, the Agency has duly considered all terms and conditions of the Amendment and believes that the DDA, as amended is in the best interest of the Agency and the City of Santa Ana and the health, safety, and welfare of its residents, and in accord with the public purposes and provisions of applicable State and local laws requirements; and WHEREAS, the Developer has submitted to the Agency and the City Council of the City of Santa Ana ( "City Council ") copies of the DDA, as amended; and WHEREAS, all actions required by all applicable law with respect to the Amendment have been taken in an appropriate and timely manner; and WHEREAS, the Agency and the City Council have duly considered all the terms and conditions of the Amendment and believes that the redevelopment of the Property pursuant to the EXHIBIT 3 DOCSOC/1495396v5/200272 -0006 1 -11 DDA, as amended in the best interests of the City of Santa Ana and the health, safety, and welfare of its residents, and in accord with the public purposes and provisions of applicable state and local laws and requirements; and WHEREAS, the Agency is a community redevelopment agency duly organized and existing under the California Community Redevelopment Law, Health and Safety Code Section 33000, et seq. ( "CRL "), and has been authorized to transact business and exercise the power of a redevelopment agency pursuant to action of the City Council; and WHEREAS, the boundaries of the South Main Street Redevelopment Project (the "Project Area ") were duly established by various ordinances of the City Council, which ordinances approved a redevelopment plan. The Property is located within the South Main Street Redevelopment Project Area, which is now part of the Agency's Merged Project Area ( "Redevelopment Plan "); and WHEREAS, Agency is vested with the power to implement the Redevelopment Plan and to carry out the goals and objectives of the Redevelopment Plan, including without limitation the goals and objectives adopted by the Agency's implementation plan ( "Implementation Plan ") pursuant to the CRL; and WHEREAS, the Agency is authorized and empowered by the CRL to enter into agreements for the acquisition, disposition and development of real property and otherwise to assist in the redevelopment of real property within a redevelopment project area in conformity with a redevelopment plan adopted for such area, to acquire real and personal property in redevelopment project areas, to receive consideration for the provision by the Agency of redevelopment assistance, to make and execute contracts and other instruments necessary or convenient to the exercise of its powers, and to incur indebtedness to finance or refinance redevelopment projects; and WHEREAS, PAG is a Delaware corporation duly organized, in good standing and qualified to do business under the laws of the State of California and experienced in the acquisition, construction, development, and operation of auto dealerships; and WHEREAS, in accordance with the California Environmental Quality Act ( "CEQA "), the proposed project is exempt from further review pursuant to Section 15061(b)(3) of CEQA, which is a general rule exemption applying to projects that have no possibility of having a significant effect on the environment. As this project consists of the assignment of an existing agreement to a new party and a reduction in Scope of Development, no effects on the environment will occur. Therefore, Categorical Exemption Environmental Review No. 2011 -51 will be filed for this project; and WHEREAS, the Agency has adopted an Implementation Plan pursuant to CRL Section 33490, which sets forth the objectives of the Redevelopment Plan; and WHEREAS, on June 22, 2011, the Agency considered the Amendment at a public meeting in accordance with applicable law, at which time the Agency reviewed and evaluated all of the information, testimony, and evidence presented; and 2 DOCSOC/1495396v5/200272 -0006 1-12 WHEREAS, the City Council has previously determined, in its adoption of the ordinance approving the Redevelopment Plan, that the Property, which is the subject of the DDA, as amended, is blighted; and WHEREAS, the DDA, as amended will assist in the elimination of blight by providing for the development and operation of a car dealership on the Property; and NOW, THEREFORE, BE IT RESOLVED by the Community Redevelopment Agency of the City of Santa Ana as follows: Section 1. Each of the foregoing recitals is true and correct. Section 2. Agency hereby consents to the assignment of the Original DDA by Original Developer (and its affiliate Santa Ana Properties, LLC, a California limited liability company) to PAG Santa Ana B1, Inc., a Delaware corporation. Section 3. The Agency hereby finds and determines that the DDA, as amended is consistent with the provisions and goals of the Implementation Plan. Section 4. In accordance with CEQA, the proposed Amendment is exempt from further review pursuant to Section 15061(b)(3) of CEQA, which is a general rule exemption applying to projects that have no possibility of having a significant effect on the environment. As this Amendment consists of the assignment of an existing agreement to a new party and a reduction in scope of development, no effects on the environment will occur. Therefore, Categorical Exemption Environmental Review No. 2011 -51 will be filed for this project. Section 5. The Agency hereby approves the Amendment between the Agency and Developer, in the form of the Amendment submitted herewith. Section 6. The Executive Director and the Agency Secretary are hereby authorized to execute and attest the Amendment, including any related attachments, on behalf of the Agency. Copies of the final form of the Amendment, when duly executed and attested, shall be placed on file in the office of the Agency Secretary. Section 7. The Executive Director (or his /her duly authorized representative) is further authorized to implement the DDA, as amended, and take all further actions and execute all documents referenced therein and/or necessary and appropriate to carry out the DDA, as amended. The Executive Director (or his /her duly authorized representative) is hereby authorized to the extent necessary during the implementation of the DDA, as amended to make technical or minor changes thereto after execution, as necessary to properly implement and carry out the DDA, as amended, provided the changes shall not in any manner materially affect the rights and obligations of the Agency. Section 8. The Agency Secretary shall certify to the adoption of this Resolution. [Signature page follows] 3 DOCS00 1495396v5/200272 -0006 1-13 ADOPTED this day of 52011. Miguel Pulido Chair APPROVED AS TO FORM: 0 AYES: NOES: ABSTAIN: NOT PRESENT Members: Members: Members: Members: CERTIFICATION OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Secretary of the Community Redevelopment Agency for the City of Santa Ana, do hereby attest to and certify the attached Resolution No. to be the original resolution adopted by the Community Redevelopment Agency for the City of Santa Ana on 52011. Date: Secretary DOCSOC/1495396v5/200272 -0006 1-14 AMENDMENT TO PRIVATE DISPOSITION AND DEVELOPMENT AGREEMENT This AMENDMENT TO PRIVATE DISPOSITION AND DEVELOPMENT AGREEMENT (this "Amendment ") is entered into as of , 2011 by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA, a public body, corporate and politic (the "Agency "), and PAG SANTA ANA 111, INC., a Delaware corporation (the "Developer "). RECITALS A. The Agency and Donald J. Crevier, as Trustee of the Donald J. Crevier Trust, and Crevier Motors, Inc., a California corporation (collectively, the "Original Developer ") entered into a Private Disposition and Development Agreement ( "DDA ") on July 19, 2004. B. The Agency and Original Developer further entered into that certain First Implementation Agreement dated as of April 18, 2005 ( "First Implementation Agreement "). The DDA and First Implementation Agreement are sometimes referred to herein as the "Original DDA, as amended "). C. Concurrently herewith, the Original Developer assigned all its rights and obligations under the Original DDA, as amended, to Developer and Agency consented thereto. D. The Agency and Developer now desire to amend the Scope of Development and Schedule of Performance as set forth in the Original DDA, as amended. NOW, THEREFORE, the parties hereby agree as follows: 1. Defined Terms as set forth in the Original DDA. All capitalized and defined terms used in this Amendment shall have the meaning given to them in the Original DDA. 2. All provisions relating to the conveyance of the Property have been fulfilled and are no longer applicable. 3. With respect to the improvements on the Property, Phase I has been completed. Phase II and Phase III are hereby eliminated and the DDA shall be amended as set forth in Exhibit A attached hereto and incorporated herein by reference. 4. The sale and leasing by Developer of MINI makes lines shall be moved from the Property to 1455 Auto Mall Drive, Santa Ana, California on or before July 2014. 5. Except as amended herein, the Original DDA, as amended shall remain in full force and effect in accordance with its terms. DOCSOC/ 1495465v3/200272 -0006 EXHIBIT 4 1 -15 IN WITNESS WHEREOF, the parties hereto have signed this Amendment as of the date set forth above. AGENCY: COMMUNITY REDEVELOPMENT AGENCY ATTEST: OF THE CITY OF SANTA ANA, a public body, corporate and politic Maria D. Huizar Secretary APPROVED AS TO FORM: I Lisa E. Storck Assistant General Counsel Nancy Edwards Interim Executive Director [Signature block continues on next page.] 2 DOCSOC/ 1495465v3/200272 -0006 1 -16 DOC SOC/ 1495465v3/200272 -0006 DEVELOPER: PAG SANTA ANA 111, INC., a Delaware corporation I'M 1 -17 George W. Brochick, Chairman 1 -18 EXHIBIT A Amendments to DDA 1. Sections 101(b)(i) and 101(b)(iii) of the DDA shall be deleted in their entirety. 2. Section 106 of the DDA shall be amended and restated in its entirety as follows: "Section 106. The Developer. The Developer is PAG Santa Ana B1, Inc., a Delaware corporation. The principal office of the Developer is located at 7015 East Chauncey Lane, Phoenix, AZ 85054." 3. Section 214 of the DDA shall be amended and restated in its entirety as follows: "Section 2.14. "Developer" shall mean PAG Santa Ana B1, Inc., a Delaware corporation." 4. Section 223 of the DDA shall be amended and restated in its entirety as follows: "Section 223. "Schedule of Performance" shall mean the time schedule for completion of the Project as set forth in the Scope of Development." 5. Section 224 of the DDA shall be amended and restated in its entirety as follows: "Section 224. "Scope of Development" shall mean the scope of development of the Property set forth in Attachment No. 3, as amended from time to time." 6. Section 301 of the DDA shall be amended and restated in its entirety as follows: "Section 301. Scope of Development. Developer agrees the Property shall be developed in accordance with and within the limitations specified in the Scope of Development attached hereto as Attachment No. 3 and incorporated herein by this reference, as Attachment No. 3. may be amended from time to time. The improvements to be developed on the Property shall include all improvements set forth in the Scope of Development, which improvements are hereinafter collectively referred to as the "Project ". 7. Section 304(B) of the DDA shall be deleted in its entirety. DMWEST #8324320 Q 1 -19 8. Section 901 of the DDA is amended by replacing the contact information for the Developer with the following: PAG Santa Ana B1, Inc. Attn: George W. Brochick, Chairman 7015 East Chauncey Lane Phoenix, AZ 85054 Fax: (480) 538 -6915 9. Attachment No. 3 to the DDA shall be amended and restated in its entirety as set forth in the Attachment No. 3 Revised Scope of Development and Schedule attached hereto as Exhibit 1. 10. Attachment No. 7 to the DDA shall be deleted in its entirety. DMWEST #8324320 v3 2 1 -20 ATTACHMENT NO. 3 REVISED SCOPE OF DEVELOPMENT AND SCHEDULE It is recognized that certain requirements specified in the original Scope of Development and General Conditions attached to the Private Disposition and Development Agreement as of July 19, 2004, have been completed or complied with. The only remaining requirements are as follows: Project Description The portion of the Property shown within the larger hash -lined area on the aerial photograph attached hereto, comprised of approximately 111,035 square feet, shall be improved pursuant to SD (Specific Development District) 60 standards, state, county and municipal codes and other applicable construction requirements. The portion of the Property shown within the cross hashed area on the aerial photograph attached hereto, comprised of approximately 54,114 square feet, shall be improved by raising the existing grade of such area to create a surface level with the remainder of the Property within the larger hash -lined area. This grading shall be accomplished to provide sufficient drainage and shall be performed in accordance with all state, county and municipal codes and other applicable construction requirements, including, but not limited to, requirements of the City of Santa Ana's National Pollution Discharge Elimination System permit. The concrete at the driveway located at the northwest most portion of the Property shall be repaired. Construction of such improvements shall be completed by July 1, 2016. The Developer shall secure all applicable approvals and permits. Refuse An enclosed refuse area or areas shall be provided at locations in accordance with the requirements of the City of Santa Ana. Refuse areas shall be designed with building materials compatible with those used for the other structures on the site. Signs All signage on the Site shall be only that which is permitted by the City of Santa Ana pursuant the applicable zoning under SD -60 and subject to approval of Agency's Executive Director. Utilities The Developer shall be responsible for all utility relocation or installations on the Property; and hookups to sewers, drains, water and gas distribution lines, electric, telephone and telegraph lines; and for hookup to all other public utility lines. All utility services on -site shall be installed underground or concealed within buildings and no mechanical equipment or meters shall be exposed at ground level as required by the Santa Ana Municipal Code. 1 -21 1 -22 i __++ tL • , s _ cif � . 7 3 � i m W W 9 cc v i `o E 0 5 1 -24 ASSIGNMENT AND ASSUMPTION AGREEMENT (1500 Auto Mall Drive, Santa Ana, California) This ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Assignment ") is hereby made as of this _ day of June, 2011, by and between PAG Santa Ana B1, Inc., a Delaware corporation ( "Assignee ") and Santa Ana Properties, LLC, a California limited liability company ( "Assignor "). RECITALS A. Assignor and the Community Redevelopment Agency of the City of Santa Ana ( "Agency ") are parties to a Private Disposition and Development Agreement, dated July 19, 2004, and a First Implementation Agreement, dated April 18, 2005, each between Assignor, as successor in interest to Donald J. Crevier, as Trustee of the Donald J. Crevier Trust, and Crevier Motors, Inc., a California corporation (together, the "Developer "), and Agency (the "DDA "). The DDA pertains to certain real property commonly known as 1500 Auto Mall Drive, Santa Ana, California (the "Property "). B. Assignor and /or its affiliates the Developer, Donald J. Crevier, an unmarried man, and Santa Ana Properties Il, LLC (collectively with Assignor, the "Seller Group ") have entered into agreements dated May 5, 2011, for the sale of the Property and other assets to Assignee (the "Transactions "). C. Assignor and Assignee desire to provide by this Assignment for Assignor to assign to Assignee all of its rights and obligations under the DDA, and for Assignee to accept such assignment and assume all rights and obligations under the DDA. D. The parties also desire for Agency to acknowledge, certify and agree to certain matters upon which the parties may rely with respect to the DDA, as more fully set forth in the Agency Estoppel Certificate attached hereto. NOW, THEREFORE, Assignor and Assignee hereby agree as follows: 1. Assignment and Assumption. Effective as of the Closing (as defined in Section 5), Assignor and the Developer hereby assign to Assignee all of their right, title and interest in and to the DDA, and, in reliance upon the Agency Estoppel Certificate and the amendment to the DDA attached thereto, Assignee hereby accepts such assignment and assumes performance of all remaining terms, covenants and conditions on the part of Assignor to be performed, occurring or arising under the DDA with respect to the Property from and after the Closing. From and after the Closing, as set forth in the Agency Estoppel Certificate, Assignor and each Seller Group member shall be released from and have no further obligations under the DDA with respect to the Property. 2. Successors and Assigns. This Assignment shall be binding upon and shall inure to the benefit of Assignor and Assignee, their respective successors and assigns and Agency as a third party beneficiary hereof. DOCSOC/ 1496602v2/200272 -0006 1 EXHIBIT 5 1 -25 3. Governing Law. This Assignment has been entered into, is to be performed entirely within, and shall be governed by and construed in accordance with the laws of the State of California. 4. Further Assurances. Each party hereto covenants and agrees to perform all acts and things, and to prepare, execute, and deliver such written agreements, documents, and instruments as may be reasonably necessary to carry out the terms and provisions of this Assignment. 5. Effective Date. The assignment and assumption of the DDA that are to be effected by this Assignment shall be effective upon, and are expressly conditioned upon, the closing of the Transactions (the "Closing "). In the event that that the Closing does not occur, this Assignment shall be void ab initio and shall be of no force or effective whatsoever, notwithstanding its execution by Assignor and Assignee. 6. Accommodation Party. Each member of Developer is a party hereto only as an accommodation for purposes of assigning any rights they may have in the DDA to Assignee. 7. Counterparts. This Assignment may be executed in two or more original or electronic counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument which shall be binding on the parties notwithstanding that all parties may not be signatories to the same counterpart or counterparts. DOC SOC/ 1496602v2/200272 -0006 [SIGNATURE PAGE FOLLOWS] 2 1 -26 IN WITNESS WHEREOF, the parties hereto have executed this Assignment as of the date set forth above. ASSIGNOR: SANTA ANA PROPERTIES, LLC a California limited liability company By: Donald J. Crevier, Manager DEVELOPER: DONALD J. CREVIER TRUST U61A Donald J. Crevier, Trustee CREVIER MOTORS, INC., a California corporation By Donald J. Crevier, President ASSIGNEE: PAG SANTA ANA B1, INC., a Delaware corporation am George W. Brochick, Chairman S -1 DOC SOC/ 1496602v2/200272 -0006 1 -27 AGENCY ESTOPPEL CERTIFICATE (1500 Auto Mall Drive, Santa Ana, California) Agency hereby acknowledges, certifies and agrees to each of the following, with the knowledge and understanding that each of Assignee and the Seller Group members, along with their respective successors and assignees, may rely: 1. That Agency hereby consents to the assignment of the DDA from Assignor to Assignee and the encumbrance of the Property with a mortgage by Assignee; 2. That from and after the Closing Assignee shall be the Developer, as defined in Sections 106 and 214 of the DDA; 3. That the Property has been conveyed from Agency to Assignor; 4. That the DDA will be amended as set forth in the amendment to the DDA attached hereto as Exhibit 1; 5. That from and after the Closing the provisions of Sections 401, 402 and 406 through 413 of the DDA shall no longer be of any force or effect and Assignee shall have no liability or obligations with respect to Sections 401, 402 or 406 through 413 of the DDA; and 6. That upon the Closing, Assignor and each member of the Seller Group shall be released from any further liability to Agency under the DDA. Agency acknowledges tht nothing herein, or related to the negotiation hereof, shall be deemed an admission by Assignor of any matter pertaining to the DDA if the Closing does not occur. COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA, a public body, corporate and politic C ATTEST: Agency Secretary Agency Counsel S -1 DOC SOC/ 1496602v2/200272 -0006 1 -28 Exhibit 1 REVISED SCOPE OF DEVELOPMENT AND SCHEDULE It is recognized that certain requirements specified in the original Scope of Development and General Conditions attached to the Private Disposition and Development Agreement as of July 19, 2004, have been completed or complied with. The only remaining requirements are as follows: Project Description The portion of the Property shown within the larger hash -lined area on the aerial photograph attached hereto, comprised of approximately 111,035 square feet, shall be improved pursuant to SD (Specific Development District) 60 standards, state, county and municipal codes and other applicable construction requirements. The portion of the Property shown within the cross hashed area on the aerial photograph attached hereto, comprised of approximately 54,114 square feet, shall be improved by raising the existing grade of such area to create a surface level with the remainder of the Property within the larger hash -lined area. This grading shall be accomplished to provide sufficient drainage and shall be performed in accordance with all state, county and municipal codes and other applicable construction requirements, including, but not limited to, requirements of the City of Santa Ana's National Pollution Discharge Elimination System permit. The concrete at the driveway located at the northwest most portion of the Property shall be repaired. Construction of such improvements shall be completed by July 1, 2016. The Developer shall secure all applicable approvals and permits. Refuse An enclosed refuse area or areas shall be provided at locations in accordance with the requirements of the City of Santa Ana. Refuse areas shall be designed with building materials compatible with those used for the other structures on the site. Signs All signage on the Site shall be only that which is permitted by the City of Santa Ana pursuant the applicable zoning under SD -60 and subject to approval of Agency's Executive Director. Utilities The Developer shall be responsible for all utility relocation or installations on the Property; and hookups to sewers, drains, water and gas distribution lines, electric, telephone and telegraph lines; and for hookup to all other public utility lines. All utility services on -site shall be installed underground or concealed within buildings and no mechanical equipment or meters shall be exposed at ground level as required by the Santa Ana Municipal Code. 1 -29 1 -30 •4P 4t -98 (T•; va I r - 14 Q 10 m W-7 L 14 Q 10 m 1 -32 ASSIGNMENT AND ASSUMPTION AGREEMENT (1455 Auto Mall Drive, Santa Ana, California) This ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Assignment ") is executed as of this _ day of June, 2011, by and between PAG Santa Ana BI, Inc., a Delaware corporation ( "Assignee "), and Santa Ana Properties II, LLC, a California limited liability company ( "Assignor "). RECITALS A. Assignor and the Community Redevelopment Agency of the City of Santa Ana ( "Agency ") are parties to a Disposition and Development Agreement, dated March 17, 1997, between Assignor, as successor in interest to Richard R. Bauer as Trustee of the 1988 Bauer Family Trust, and Agency (the "DDA "). The DDA pertains to certain real property commonly known as 1455 Auto Mall Drive, Santa Ana, California (the "Property "). B. Assignor and/or its affiliates Crevier Motors, Inc., a California corporation, dba Crevier BMW/MINI, Donald J. Crevier, Trustee of the Donald J. Crevier Trust, Donald J. Crevier, an unmarried man, and Santa Ana Properties, LLC (collectively with Assignor, the "Seller Group ") have entered into agreements dated May 5, 2011, for the sale of the Property and other assets to Assignee (the "Transactions "). C. Assignor and Assignee desire to provide by this Assignment for Assignor to assign to Assignee all of its rights and obligations under the DDA, and for Assignee to accept such assignment and assume all rights and obligations under the DDA. D. The parties also desire for Agency to acknowledge, certify and agree to certain matters upon which the parties may rely with respect to the DDA, as more fully set forth in the Agency Estoppel Certificate attached hereto. NOW, THEREFORE, Assignor and Assignee hereby agree as follows: 1. Assignment and Assumption. Effective as of the Closing (as defined in Section 5), Assignor hereby assigns to Assignee all of its right, title and interest in and to the DDA, and, in reliance upon the Agency Estoppel Certificate, Assignee hereby accepts such assignment and assumes performance of all remaining terms, covenants and conditions on the part of Assignor to be performed, occurring or arising under the DDA with respect to the Property from and after the Closing. 2. Successors and Assigns. This Assignment shall be binding upon and shall inure to the benefit of Assignor and Assignee, their respective successors and assigns and Agency as a third party beneficiary hereof. 3. Governing Law. This Assignment has been entered into, is to be performed entirely within, and shall be governed by and construed in accordance with the laws of the State of California. DOC SOC/ 1496597v 1/200272-0006 EXHIBIT 6 1 -33 4. Further Assurances. Each party hereto covenants and agrees to perform all acts and things, and to prepare, execute, and deliver such written agreements, documents, and instruments as may be reasonably necessary to carry out the terms and provisions of this Assignment. 5. Effective Date. The assignment and assumption of the DDA that are to be effected by this Assignment shall be effective upon, and are expressly conditioned upon, the closing of the Transactions (the "Closing "). In the event that that the Closing does not occur, this Assignment shall be void ab initio and shall be of no force or effective whatsoever, notwithstanding its execution by Assignor and Assignee. 6. Counterparts. This Assignment may be executed in two or more original or electronic counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument which shall be binding on the parties notwithstanding that all parties may not be signatories to the same counterpart or counterparts. [SIGNATURE PAGE FOLLOWS] 2 DOCSOC/ 1496597v 1/200272-0006 1 -34 IN WITNESS WHEREOF, the parties hereto have executed this Assignment as of the date set forth above. ASSIGNOR: SANTA ANA PROPERTIES II, LLC, a California limited liability company IM Donald J. Crevier, Manager ASSIGNEE: PAG SANTA ANA B1, INC., a Delaware corporation C George W. Brochick, Chairman S -1 DOCSOC/1496597v 1/200272 -0006 1 -35 AGENCY ESTOPPEL CERTIFICATE (1455 Auto Mall Drive, Santa Ana, California) Agency hereby acknowledges, certifies and agrees to each of the following, with the knowledge and understanding that each of Assignee and the Seller Group members, along with their respective successors and assignees, may rely: 1. That on October 16, 1998, a Certificate of Completion was recorded with respect to the Property pursuant to Section 317 of the DDA; 2. That Agency hereby consents to the assignment of the DDA from Assignor to Assignee and the encumbrance of the Property with a mortgage by Assignee; 3. That from and after the Closing Assignee shall be the Developer, as defined in Section 106 of the DDA, 4. That the Property has been conveyed and developed in accordance with the DDA and upon the Closing Assignor and each member of the Seller Group shall be released from any further liability to Agency under the DDA; and 5. That from and after the Closing the provisions of Articles II and III of the DDA shall no longer be of any force or effect and Assignee shall have no liability or obligations with respect to Articles II or III of the DDA. ATTEST: Agency Secretary Agency Counsel DOC SOC/ 1496597v 1/200272-0006 COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA, a public body, corporate and politic an 1 -36