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HomeMy WebLinkAboutDevelopment Agreement - DRAFTRECORDING REQUESTED BY ) AND WHEN RECORDED MAIL TO: ) City of Lake Elsinore ) 130 South Main Street ) Lake Elsinore, California 92530 ) Attention: City Clerk ) (Space above for Recorder's use.) (Exempt from Recording Fees Per Govt Code §27383.) DEVELOPMENT GREE Mohr Affinity Development Agreement 123014 imited liability company DEVELOPMENT AGREEMENT This Development Agreement (the "Agreement ") is made this 10th day of February, 2015, by and between the CITY OF LAKE ELSINORE, a municipal corporation organized and existing under the laws of the State of California (the "City "), and MOHR AFFINITY, LLC, a California limited liability company (the "Developer "). The City and the Developer are hereinafter sometimes referred to individually as a "Party" and collectively as the "Parties." In consideration of the mutual covenants and agreements contained in this Agreement, the Parties hereto agree as follows: RECITALS A. Government Code Sections 65864, t seq.� °; Statutes ") authorize the City to enter into an agreement with any a legal or equitable interest in real property rep 'the future B. Government Code Section 65864 Mates that process can result in a waste of resources and escai4t the e applicant through a development agr �;,�nent that the a lie accordance with existing policies, go regulatiori� �a �ewill strengthen the P ublic planning ura e r planning and reduce the economic costs nt. C. Pur: rules and regulatio agreements: Lake Agreement Procedures') accordancewttlZ :thy Devi Procedub� 1 � D The property; approx>matelyF6.5 acres co . as the Outletst L,�ke Elsino a General Plan laid ::use and ( "Specific Plan"). `- Description attached the "Development Agreement p rson or business entity having dev8Wpment of such property. lack of 66#ainty in the approval f development Assurance to the proceed in subject to conditions of approval, to participation in comprehensive rnment Cool Sectio,' the 6, has adopted the following ing procedures �quirem�ntMr consideration of development Mumoipal Code;%(lEMC) Chapter 19.12 (the "Development us Aement has -bzeen processed, considered and executed in pent` Agement` tatutes and the Development Agreement ch > the subject of this Agreement (the "Property ") consists of ised of 'Ns 389 -210 -063, 064 and 066 and commonly known ),mated at"..", 600 Collier Avenue in the City of Lake Elsinore with g designation of "Lake Elsinore Outlet Center Specific Plan" qty is more particularly described as set forth in the Legal hibit "A" and incorporated herein by reference. E. The DevelopeYis a California limited liability company authorized to do business in the State of California. The Developer is the fee owner of the Property. F. Through this Agreement, the Developer and the City intend to vest the General Plan, Specific Plan and land use regulations for the Property and applicable development impact fees primarily to bring certainty and stability to the City regulations applicable to the future expansion of the Outlets at Lake Elsinore consistent with this Agreement. This Agreement does not constitute approval of a development project for the expansion of the Outlets at Lake Elsinore and the Developer has not submitted applications to the City for such development. However, absent the certainty provided by the vesting of applicable City regulations, Mohr Affinity Development Agreement 123014 development costs could increase resulting in a strong likelihood that development would not occur on the Property and resulting in the loss of, or detrimental delay in, commercial services to the residents of the City and sales and property tax revenue to the City. In reliance upon the vested rights provided herein, the Developer agrees to submit applications for future commercial development of the Property consistent with the "Expansion Concept" depicted in Exhibit "B" to this Agreement. G. As consideration for the vested rights and certainty provided by this Agreement, the Developer shall pay certain "Development Agreement Fees ", complete certain improvements to the Property consistent with "Existing Approvals ", and complete certain public improvements consisting of Collier Avenue median improvements along the frontage of the Property and installation of a freeway identification bridge sign on the I -15 Freeway at Nichols Road in addition to compliance with conditions of approval that may be imposed on future commercial development of the Property in accordance with the "Applicable Rules ". H. This Development Agreement has been properly reviewed and assessed by the City pursuant to the California Environmental Quality Act (California Public Resources Code Section 21000 et seq.) and the "CEQA Guidelines" (Title 14, California Code of Regulations Section 15000 et seq.). At a duly noticed public hearing in June 1990, the Lake Elsinore City Council certified a Final Environmental Impact Report (the "FEIR ") for the Specific Plan. On July 9, 2013 the City Council approved Amendment No. 4 to the Specific Plan that included demolition of 60,936 square feet of building area, approval of a 40,000 square foot pad and signage. This Agreement is consistent with the Lake Elsinore General Plan, the Specific Plan, the LEMC and the findings and discussions contained in the FEIR and there are no significant environmental effects or substantial changes to the Property under this Agreement when viewed against the FEIR. This Agreement is categorically exempt from the requirements of CEQA pursuant to Class 2 — CEQA Guidelines section 15302, replacement or reconstruction, and Class 15 — CEQA Guidelines section 15315, minor land division. I. The City deems the approval and implementation of this Agreement to be in the public's best interest, consistent with the public health, safety and welfare, and intends that the adoption of this Agreement be considered an exercise of the City's police powers to regulate the Property. J. On January 6, 2015, the City Planning Commission held a duly noticed public hearing on the Developer's application for the Development Agreement and recommended to the City Council approval of this Agreement. K. On January 27, 2015, the City Council held a duly noticed public hearing on the Developer's application for the Development Agreement and on February 10, 2015, the City Council adopted Ordinance No. 2015 - approving this Agreement (the "Ordinance "). The Ordinance shall become effective on March 12, 2015 (the "Effective Date "). L. The Developer has applied to the City in accordance with applicable procedures for approval of this mutually binding Agreement. The Planning Commission and City Council of the City have given public notice of intention to consider this Agreement, have conducted public hearings thereon pursuant to the Development Agreement Statutes, have found that the Mohr Affinity Development Agreement 123014 2 provisions of this Agreement are consistent with, and fulfill the objectives of, the General Plan and the Specific Plan; and have made all of the other required findings, including, but not limited, the findings set forth in Section 19.12.080 of the LEMC. M. This Agreement will bind the City to the terms and obligations specified in this Agreement and will limit, to the degree specified in this Agreement and under State law, the future exercise of the City's ability to change the Applicable Rules, hinder, delay, postpone, preclude or regulate the development on the Property, except as provided for herein. THEREFORE, the Parties agree as follows: AGREEMENT 1. Definitions. In this Agreement, unless the context otherwise requires: 1.1. "Agreement" means this Development Agreement entered into between the City and the Developer as of the Effective Date and shall include all amendments properly approved and executed pursuant to Section 6.4 and all changes, adjustments or clarifications by Operating Memoranda as set forth in Section 7. 1.2. "Applicable Rules" means the "Existing Land Use Rules" and "Existing Development Impact Fees" defined in Section 3.1 of this Agreement which shall govern the future commercial development on the Property. 1.3. "Bridge Identification Sign" is defined in Section 5.4. 1.4. "City General Plan" or "General Plan" shall mean the General Plan of the City of Lake Elsinore. 1.5. "Collier Median Improvements" is defined in Section 5.3. 1.6. "Community Development Director" shall mean the Director of Community Development of the City of Lake Elsinore, or designee. 1.7 "Development Agreement Fees" shall mean the Initial DAG Fee and the Commercial DAG Fees as defined in Section 5.1 of this Agreement. 1.8. "Effective Date" is the effective date of this Agreement which is March 12, 2015, the date the Ordinance approving this Agreement becomes effective. 1.9. "Escrow" shall mean the escrow established with First American Title Company or other mutually agreed upon "Escrow Agent" in accordance with Section _ of this Agreement. 1.10. "Existing Approvals" shall mean the Lake Elsinore Outlet Center Specific Plan and the amendments thereto, including Amendment No. 2013 -01 — the Fourth Amendment which includes update and additional signage and additional site amenities such as outdoor living rooms, furnishings, water features and fireplaces and Uniform Sign Program No. 2013 -02 - Mohr Affinity Development Agreement 123014 3 amending the signage guidelines and standards to include the addition of a super graphics wall along the I -15 freeway as well as add graphic panels and banners to existing buildings on the Property. 1.11. "Expansion Concept" shall the proposed expansion of the Outlets at Lake Elsinore consisting of four building pads along Collier Avenue between the north end of the existing Outlet Center and the north Property line as depicted in the concept drawings attached hereto as Exhibit `B ". The proposed building pads may range in size between 2,000 square feet and 8,000 square feet and a total up to 20,000 square feet with not more than three (3) of the building pads with drive -thru lanes. 1.12. "Future Approvals" means any land use entitlement or permit, including without limitation, any applicable parcel map, commercial design review, conditional use permit, and building permit required by the Specific Plan and /or the LEMC for commercial development on the Property consistent with the Expansion Concept. 1.13. "Laws" or "Law," or any reference to "laws" or "law" in this Agreement includes all applicable federal and California statutes, regulations, and case law, and any City laws, ordinances, resolutions, rules, regulations, policies, mitigation measures, conditions, standards, specifications, dedications, fees, taxes (including without limitation general, special and excise taxes), assessments, liens, other exactions and impositions, or any other action, whether enacted or adopted by the City or its electorate through the initiative or referendum process. 1.14 "LEMC" mean the Lake Elsinore Municipal Code. 1.15. "Property" is the real property that is the subject of this Agreement identified in Recital D and described in Exhibit "A ". 1.16. "Specific Plan" is the "Lake Elsinore Outlet Center Specific Plan" as amended by Amendments No. 1 through No. 4 as of the Effective Date. 1.17. "Subsequent Rules" means any Law enacted after the Effective Date, including the Laws set forth in Section 2.7. 1.18. "Term" shall mean the term of this Agreement commencing on the Effective Date and expiring five (5) years thereafter subject to and as defined in Section 9. 2. General Provisions. 2.1. Agreement Personal to Developer. The qualifications and identity of the Developer are of particular concern to the City. Therefore, this Agreement and the vested rights conferred herein are personal to Developer and shall only inure to third parties acquiring an interest or estate in the Property or portion thereof consistent with the provisions of Section 11 of this Agreement. 2.2. Negation of Agency. The Parties acknowledge that, in entering into and performing under this Agreement, each is acting as an independent entity and not as an agent of Mohr Affinity Development Agreement 123014 4 the other in any respect. Nothing contained herein or in any document executed in connection herewith shall be construed as making the City and the Developer joint venturers, partners, agents of the other, or employer /employee. 2.3. Public Benefit and Consideration. The City has determined that entry into this Agreement will further the goals and objectives of the City's land use planning policies, by eliminating uncertainty in planning for the expansion of the Outlets at Lake Elsinore and completion of certain public improvements and payment Development Agreement Fees. The City has further determined that entry into this Agreement will provide the maximum effective utilization of the resources of the City, at the least economic cost to its citizens. In exchange for the vested rights and assurances provided by the City permitting the Developer to proceed with the planning, application and proposed expansion of the Outlets at Lake Elsinore in accordance with the Applicable Rules, the Developer shall pay certain Development Agreement Fees and complete certain public improvements consisting of Collier Avenue median improvements along the frontage of the Property and installation of a freeway bridge sign on the 1 -15 Freeway at Nichols Road. 2.4. Existing Use of the Property and Completion of Property Improvements. Developer proposes to continue to use the Property as the Outlets at Lake Elsinore in accordance with the Specific Plan and shall complete the improvements to the Property consistent with the Existing Approvals. 2.5. Agreement does not Authorize Development. The Parties agree and acknowledge that the Agreement itself does not authorize Developer to undertake any development of the Property, beyond what is currently authorized under the Existing Approvals. 2.6. City not Required to Approve any Development Application. The Agreement does not require the City to approve any development application for Future Approvals that may be submitted by Developer, but only obligates the City to process any Development application consistent with and pursuant to the Applicable Rules. 2.7. Enforcement of Agreement; Subsequent Rules. Except as provided in Section 3, this Agreement shall be enforceable by each Party or any successor(s) or assign(s) (as permitted in Section 11), in accordance with the Applicable Rules notwithstanding any rule, regulation or official policy adopted after the Effective Date relating to or effecting a change in or addition to the General Plan, Specific Plan, zoning, subdivision, land use, intensity of use, density, design, development standards, requirements to pay development impact fees, occupancy standards, requirements to provide public improvements, services or infrastructure (or contributions in lieu thereof) or dedications or reservations of property for public use, or any other conditions or exactions applicable to development of the Property (collectively, the "Subsequent Rules "). Mohr Affinity Development Agreement 123014 5 3. Development Standards for the Property; Applicable Rules. Developer's application for future commercial development and use of the Property shall be processed by the City in accordance with the land use and development standards and restrictions set forth in this Section, and shall constitute the Applicable Rules: 3.1. Rules, Regulations, Official Policies. Except as otherwise set forth in this Agreement, the City rules, regulations, ordinances, resolutions, orders, actions, laws, general plans, conditions of approval and official policies governing and all other conditions and exactions applicable to the development and use of the Property are expressly acknowledged and agreed by the Parties to be those in force and effect upon the Effective Date (the "Applicable Rules "): Rules: a. The following "Existing Land Use Rules" shall be part of the Applicable The City's General Plan and Map as it exists on the Effective Date; ii. The environmental impact report ( "EIR ") and subsequent environmental documents adopted in connection with the General Plan; iii. The Specific Plan and FEIR and subsequent environmental documents adopted in connection with the Specific Plan, as of the Effective Date; iv. The City's Zoning Code and Map, as it exists on the Effective Date; V. Such other laws, ordinances, resolutions, orders, actions, general plans, specific plans, conditions of approval and official policies governing permitted uses of the Property; zoning, subdivision, land use, intensity of use, density, design, development standards, requirements to pay development impact fees, occupancy standards, requirements to provide public improvements, services or infrastructure (or contributions in lieu thereof) or dedications or reservations of property for public use, or any other conditions or exactions applicable to development of the Property or on timing, sequence, and phasing of development are expressly acknowledged and agreed by the Parties to be those in force and effect upon the Effective Date; vi. Any subsequently enacted law, regulation or policy expressly agreed to by the Developer in writing to the City. b. During the first 30 months of the Term, the Applicable Rules governing development of the Property shall include only those City development impact fees in effect and in such amounts as applicable as of the Effective Date ( "Existing Development Impact Fees ") except as provided hereinbelow: i. The Developer shall be required to pay development impacts fees pursuant to LEMC Chapter 16.83 for the Western Riverside County Transportation Uniform Mitigation Fee (TUMF) Program and LEMC Chapter 16.85 for the Local Development Mitigation Fee for Funding the Preservation of Natural Ecosystems (MSHCP) in such amounts Mohr Affinity Development Agreement 123014 6 as in effect as of the issuance of building permits for development of the Property at any time throughout the Term. ii. Commencing September 12, 2017 and any time thereafter, development on the Property shall be subject to any and all development impact fees in effect as of the date of the issuance of building permits. iii. Notwithstanding the foregoing exceptions to the vesting of Existing Development Impact Fees set forth in (i) and (ii) above, at any time during the Term, the Developer may elect to pre -pay in whole or in part any development impact fees applicable to the proposed development of the Property in such amount as in effect at the time of payment. C. The following Laws shall not be part of the Applicable Rules: i. Regulations governing construction standards and specifications, including without limitation, the City's Building Code, Plumbing Code, Mechanical Code, Electrical Code and Fire Code; ii. Revisions and amendments to the Applicable Rules if the City determines that the failure of the City to make such revisions or amendments would place the residents of the City in a condition dangerous to their health and safety, or both; iii. Revisions and amendments to the Applicable Rules mandated by changes in laws, regulations, plans or policies to the extent that such changes are mandated and required by changes in state or federal laws or regulations; iv. Changes in citywide land use regulations, ordinances, policies, programs adopted after the Effective Date that are not in conflict with the Applicable Rules as provided herein; and V. Procedural regulations related to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals and any other matter of procedures not otherwise set forth herein. 4. Acknowledgments Agreements and Assurances on the Part of the City. In order to effectuate the provisions of this Agreement, the City hereby agrees and assures the Developer that the Developer will be permitted to plan, apply for and develop the Property in accordance with the Applicable Rules and applicable Future Approvals. Therefore, the City hereby agrees and acknowledges that: 4.1. Entitlement to Develop. The Developer is hereby granted the vested right to develop the Property to the extent and in the manner provided in this Agreement, subject to the Applicable Rules and the Future Approvals. 4.2. Subsequent Enactments. The Subsequent Rules which would, absent this agreement, otherwise be applicable to the Property, shall not be applied by the City to any part of the Property except as provided for herein. The Developer may, in its sole discretion, give the Mohr Affinity Development Agreement 123014 7 City written notice of its election to have any Subsequent Rule applied to Property in which case such Subsequent Rule shall be deemed to be an Applicable Rule. 4.3. Future Approvals. The Developer shall, within the Term of this Agreement, submit all applications for Future Approvals deemed necessary by the City under the Applicable Rules for the future commercial development of the Property consistent with the Expansion Concept. The Property may be used and developed consistent with any other future entitlements requested by the Developer and approved by the City, including but not limited to tentative and final parcel maps, general and specific plan amendments, zone changes, variances, conditional use permits, lot line adjustments, grading plans, building permits and certificates of occupancy. In accordance with Section 4.5.b., the Developer shall pay to the City all lawful application and processing fees. The City shall process applications for Future Approvals consistent with this Agreement, including without limitation the Applicable Rules, and the City shall have the right to conduct environmental review and impose conditions and /or mitigation measures in connection with such Future Approvals. 4.4. Timing of Development. Because the California Supreme Court held in Pardee Construction Co. v. City of Camarillo, 37 Cal.3d 465 (1984), that failure of the parties to provide for the timing of development resulted in a later adopted initiative restricting the timing of development to prevail over the parties' agreement, it is the intent of the Developer and the City to cure that deficiency by acknowledging that, except as otherwise provided for herein, the Developer shall have the right (without the obligation) to develop the Property at such rate and at such time as the Developer deems appropriate within the exercise of its subjective business judgment. 4.5. Fees and Exactions. This Agreement shall not be construed to limit the authority of City to: a. Charge and impose fees and exactions, including, without limitation, dedications, contributions, in lieu fees, reservations and any other fees or taxes (including excise, construction or any other taxes) relating to development or the privilege of developing the Property that are legal and authorized by the Applicable Rules; b. Charge application and processing fees in effect on a citywide basis on the Effective Date as may be amended for land use approvals, building permits, and other similar permits and entitlements, which fees are designed to reimburse the City's actual expenses attributable to processing such applications, provided, however, said application and processing fees shall not exceed the fees that are charged by the City generally to applicants, on a non - discriminatory basis for similar approvals, permits, or entitlements granted by City; or C. Impose or levy general or special taxes, including but not limited to, property taxes, sales taxes, transient occupancy taxes, business taxes, which may be applied to the Property or to businesses occupying the Property; provided, however, that the tax is of general applicability Citywide and does not burden the Property disproportionately when compared to the development of other institutional, residential, commercial, office or retail uses within the City. Nothing in this Agreement prohibits the adoption and application of a special tax approved by the City's voters, provided that such tax is imposed on a City wide basis. Mohr Affinity Development Agreement 123014 8 5. Acknowledgments Agreements and Assurances on the Part of the Developer. In order to effectuate the provisions of this Agreement, the Developer hereby agrees and assures the City that the Developer shall satisfactorily perform the following actions within the times and in accordance with the provisions of this Section 5: 5.1 Development Agreement Fees. a. Initial Development Agreement Fee. Pursuant to City Municipal Code Section 19.12.170, Developer shall pay City $50,000 (the "Initial DAG "). Payment of the Initial DAG shall be made on or before the Effective Date and may, at the Developer's discretion, be paid from the Escrow established in accordance with Section 5.6 of this Agreement. b. Commercial Development Agreement Fee. At the time of issuance of a commercial building permit for construction within the Property, the Developer shall pay to the City "Commercial DAG Fees" equal to $2.50 per square foot of commercial development. Owner may elect to prepay the Commercial DAG Fees at any time so long as such prepayment is for the entire proposed development and not just a portion thereof. The Commercial DAG Fee may, at the Developer's discretion, be paid from the Escrow established in accordance with Section 5.6 of this Agreement. The obligation to pay the Commercial DAG Fees shall survive the termination of this Agreement. 5.2 Completion of Property Improvements. As of the Effective Date, the Developer has made a significant investment to upgrade and improve the Property with additional site amenities such as outdoor living rooms, furnishings, water features and fireplaces and additional signage including a super graphics wall along the I -15 freeway as well as add graphic panels and banners to existing buildings consistent with Amendment No. 2013 -01 - Fourth Amendment to the Outlet Center Specific Plan and Uniform Sign Program No. 2013 -02. During the Term and prior to the close -out of the Escrow, the Developer shall complete the improvements to the Property in substantial conformance with Amendment No. 2013 -01 - Fourth Amendment to the Outlet Center Specific Plan and Uniform Sign Program No. 2013 -02. The Community Development Director shall upon request by the Developer confirm in writing a "punch list" of the improvements required to be completed and /or confirm satisfactory completion of such improvements. 5.3 Collier Avenue Median Improvements. Developer shall complete improvements to the Collier Avenue median between Nichols Road and Riverside Drive in conformance with the final design specifications approved by the City ( "Collier Median Improvements ") and subject to all applicable Laws, including any applicable nondiscrimination, labor standards, and prevailing wage rate requirements in accordance with the provisions of California Labor Code Section 1720 et seq. The final approved design specifications shall be substantially consistent with the preliminary design concept attached as Exhibit "C" to this Agreement. Developer shall be responsible for the construction of, and shall let contracts for (or cause contracts to be let for) the construction of the Collier Median Improvements. All costs incurred for any reason in constructing the Collier Median Improvements shall be at the sole cost Mohr Affinity Development Agreement 123014 9 and expense of the Developer and may be paid from the Escrow established in accordance with Section 5.5 of this Agreement. 5.4 Freeway Bridge Identification Sign. Developer shall complete the fabrication and installation of a freeway bridge sign on the I -15 Freeway at Nichols Road in conformance with the design specifications attached in preliminary form as Exhibit "C" to this Agreement and in such final form as approved by the City ( "Bridge Identification Sign ") and subject to all applicable Laws, including any applicable nondiscrimination, labor standards, and prevailing wage rate requirements in accordance with the provisions of California Labor Code Section 1720 et seq. The Developer shall be responsible for the construction of, and shall let contracts for (or cause contracts to be let for) the construction of the Bridge Identification Sign. All costs incurred for any reason in constructing and installing the Bridge Identification Sign shall be at the sole cost and expense of the Developer and may be paid from the Escrow established in accordance with Section 5.5 of this Agreement. 5.6 Escrow. On or before the Effective Date, the Developer shall deposit One Million Dollar ($1,000,000) into an Escrow established by City with First American Title Company or other mutually agreed upon Escrow Agent to secure payment of the Initial DAG and the Commercial DAG Fees and the satisfactory completion of the Collier Median Improvements and Bridge Identification Sign. Funds in such Escrow are subject to withdrawal for payment of such costs and for no other purpose in accordance with Escrow Instructions to be entered into by City, Developer and Escrow Agent in substantially the form attached hereto as Exhibit "D ". Upon payment of the Development Agreement Fees in accordance with Section 5.1.a. and 5.1.b. and completion by the Developer of the Property Improvements, the Collier Median Improvements and the Bridge Identification Sign in accordance with Section 5.2, 5.3 and 5.4 and acceptance thereof by the City, any remaining funds in the Escrow shall be disbursed to the Developer. Developer acknowledges and agrees that Developer is responsible for all Development Agreement Fees and all costs incurred in connection with such improvements and that the funds deposited in Escrow shall not constitute a cap limiting the Developer's financial responsibility and that the Escrow is established to provide security based upon the Parties' reasonable estimate of such costs, including reasonable contingencies. 6. Cooperation and Implementation. The City agrees that it will cooperate in good faith and fair dealing with the Developer to the fullest extent to implement this Agreement, including the following: 6.1. Further Assurances; Covenant to Sign Documents. Each Party shall take all actions and do all things, and execute, with acknowledgment or affidavit, if required, any and all documents and writings that may be necessary or proper to achieve the purposes and objectives of this Agreement. 6.2. Processing. The City hereby agrees that it will accept from the Developer for processing and review all applications for Future Approvals in accordance with this Agreement, provided that said applications are submitted in accordance with the Applicable Rules. To the fullest extent allowed by law, the City shall process all applications for Future Approvals as expeditiously as is commercially reasonable and complete at the earliest commercially reasonable time all steps necessary for the implementation of this Agreement and Mohr Affinity Development Agreement 123014 10 in accordance with applicable Laws, including without limitation the Permit Streamlining Act (Government Code Sections 65950 et seq.), including, but not limited to, the following: Future Approvals; a. The processing of applications for and the issuance of all the b. The holding of any required public hearings; C. With respect to all applications for the issuance of all Future Approvals, in particular ministerial approvals such as sign permits, grading plans, grading permits, improvement permits, wall permits, building and electrical permits, encroachment permits, temporary use permits, the City shall respond to the application in writing within thirty (30) days after the application is submitted to the City; and d. During the preparation of any drawings, plans, maps and related documents, staff of the City and the Developer shall hold regular progress meetings as needed to coordinate the preparation and review of such items, and the staff of the City and the Developer shall communicate and consult informally as frequently as is necessary to ensure that the formal submittal of any documents to the City can receive prompt and speedy attention. 6.3. Defense of Agreement and Processing During Third Party Litigation. In the event that a third party lawsuit relating to this Agreement is filed against the City or the Developer, the City or the Developer may elect to terminate this Agreement as provided by Section 7.3 provided, however, that the obligation set forth in this Section 6.3 shall survive such termination. Subject to the Developer's compliance with the preceding obligation, such lawsuit related to this Agreement shall not hinder, delay or stop the development, processing or approval of Future Approvals unless the third party obtains a court order preventing the activity and posts adequate security as required by law. If this Agreement or any Applicable Rule as applied to this Agreement is adjudicated or determined to be invalid or unenforceable, the City agrees, subject to the City's lawful discretion and all other legal requirements, to consider all modifications to this Agreement or the Applicable Rules which are necessary or required to render it valid and enforceable to the extent permitted by applicable law on the condition that Developer shall reimburse City for all costs and expense related thereto. 6.4. State Federal or Case Law. Where any state, federal or case law allows the City to exercise any discretion or to take any action with respect to that law, the City shall, in an expeditious and timely manner, at the earliest possible time, (i) exercise its discretion in such a way as to be consistent with, and carry out the terms of, this Agreement and (ii) take such other actions as may be necessary to carry out in good faith the terms of this Agreement. 6.5. Processing Cooperation. To the extent permitted by law, the City shall cooperate with and assist the Developer in securing any and all entitlements, authorizations, permits or approvals which may be required by any other governmental or quasi - governmental entity in connection with the Collier Median Improvements and the Bridge Identification Sign. The City shall cooperate with the Developer in any dealings with federal, state and other local governmental and quasi - governmental entities concerning issues affecting such improvements. Mohr Affinity Development Agreement 123014 11 7. Compliance; Termination; Modifications and Amendments. 7.1. Review of Compliance. Pursuant to Government Code Section 65865.1 and the Development Agreement Procedures, the City Council shall review this Development Agreement once each year, on or before each anniversary of the Effective Date ( "Periodic Review ") in order to review the extent of the good faith substantial compliance by the Developer with the terms and provision of this Agreement as well as the performance by the City of its obligations under this Agreement. The City shall provide Developer with written notice thirty (30) days prior to such Periodic Review. The City's failure to review at least annually compliance by the Developer with the terms and conditions of this Agreement shall not constitute or be asserted by any Party as a breach by any other Party of this Agreement, or of Developer's lack of compliance with this Agreement. 7.2 Events of Default. Subject to any written extension of time by mutual consent of the Parties, and subject to the provisions of Section 17 regarding permitted delays, the uncured failure of either Party to perform any material term or provision of this Agreement will constitute a default. On written notice to a Party of its failure of performance, such Party will have 30 days to cure such failure of performance; provided, however that if the nature of the failure of performance is such that it cannot be cured within such period, then the diligent prosecution to completion of the cure will be deemed to be cure within such period. Any notice of default given hereunder will be in writing and specify in detail the nature of the alleged default and the manner in which such default may be satisfactorily cured in accordance with this Agreement. During the time period herein be in writing and specified for the cure of a failure of performance, the Party charged with such failure of performance will not be considered to be in default for purposes of termination of this Agreement or for purposes of institution of legal proceedings with respect thereto and, if the Developer is the Party that has failed to perform, then the City will not be excused from its performance under this Agreement during that period. 7.3 Remedies. Upon the occurrence of a default under this Agreement and the expiration of any applicable cure period, the non - defaulting Party will have such rights and remedies against the defaulting Party as it may have at law or in equity including, without limitation, the right to terminate this Agreement. 7.4 No Waiver. The failure by a Party to insist on the strict performance of any of the provisions of this Agreement by the other Party will not constitute a waiver of such Party's right to demand strict performance by such other Party in the future. All waivers must be in writing to be effective or binding on the waiving Party and no waiver will be implied from any omission by a Party to take action. No express written waiver of any default will affect any other default or cover any other period of time except that specified in such express waiver. 7.5 Effect of Termination. Termination of this Agreement by one Party due to the default of the other Party will not affect any right or duty emanating from any then - existing City entitlement or approvals with respect to the Property, but the Developer's vested rights as to the Applicable Rules will otherwise cease as of the date of such termination. The obligations of Developer to pay complete the Collier Median Improvements and the Bridge Identification Sign shall survive termination of this Agreement and the City will retain any and all benefits including, without limitation, Development Agreement Fees and any public improvements, Mohr Affinity Development Agreement 123014 12 including the Collier Median Improvements and Bridge Identification Sign, and any undisbursed funds in Escrow as of the date of termination. 7.6. Modification or Amendment of Development Agreement. Subject to the notice and hearing requirements of the Development Agreement Statutes, this Agreement may be modified or amended from time to time only with the written consent of the Developer and the City or their successors and assigns in accordance with the provisions of the LEMC and Sections 65867 and 65868 of the Government Code. 8. Operating Memoranda. The provisions of this Agreement require a close degree of cooperation between the City and the Developer, including coordination with Caltrans and other state and local governmental entities. The construction process for the Collier Median Improvements and the Bridge identification Sign operations may demonstrate that clarifications to this Agreement and the Applicable Rules are appropriate with respect to the details of performance of the City and the Developer. To the extent allowable by law, the Developer shall retain a certain degree of flexibility as provided herein with respect to all matters, items and provisions covered in general under this Agreement, except for those which relate to the (i) term or (ii) permitted uses. When and if the Developer finds it necessary or appropriate to make changes, adjustments or clarifications to matters, items or provisions not enumerated in (i) through (ii) above, the Parties shall effectuate such changes, adjustments or clarifications through operating memoranda (the "Operating Memoranda ") approved by the Parties in writing which reference this Section 8. Operating Memoranda are not intended to constitute an amendment to this Agreement but mere ministerial clarifications; therefore public notices and hearings shall not be required. The City Manager shall be authorized, upon consultation with, and approval of, the Developer, to determine whether a requested clarification may be effectuated pursuant to this Section or whether the requested clarification is of such character to constitute an amendment to this Agreement which requires compliance with the provisions of Section 7.5 above. 9. Term of Agreement. This Agreement shall become operative and commence upon the Effective Date. It shall remain in effect until five (5) years from and after the Effective Date, unless this Agreement is terminated, modified, or extended upon mutual written consent of the Parties hereto or as otherwise provided in this Agreement. Following the expiration or termination of the term hereof, this Agreement shall be deemed terminated and of no further force and effect; provided, such expiration or termination shall not automatically affect any right or duty of the City or the Developer arising from City approvals or actions approved or issued prior to the expiration or termination of the term. Notwithstanding the termination or expiration of this Agreement, the term of the Escrow shall be governed by the mutually agreed upon and executed Escrow Instructions. 10. Estoppel Certificate. Either Party may at any time, and from time to time, deliver written notice to the other Party, requesting that the other Party certify in writing to the knowledge of the certifying Party that: (a) this Agreement is in full force and effect and is a binding obligation of the certifying Party; (b) this Agreement has not been amended or modified, except as expressly identified; (c) no default in the performance of the requesting Party's obligations pursuant to Agreement exists, except as expressly identified. A Party receiving a Mohr Affinity Development Agreement 123014 13 request hereunder will execute and return the requested certificate within 30 days after receipt of the request. 11. Transfers and Assignments. The rights and obligations of Developer hereunder shall not be assigned or transferred, except that on thirty (30) days written notice to City, Developer, may assign all or a portion of Developer's rights and obligations thereunder to any person or persons, partnership or corporation who purchases all or a portion of Developer's right, title and interest in the Sign, provided such assignee or grantee assumes in writing each and every obligation of Developer hereunder yet to be performed. The notice to City shall include the identity of any such assignee, evidence of the assignee's right, title and interest in the Sign and a copy of the written assumption of the assignor's obligations hereunder pertaining to the portion assigned or transferred. After such notice and the receipt of such consent, the assignor shall have no further obligations or liabilities hereunder. 12. Mortgagee Protection. The Parties hereto agree that this Agreement shall not prevent or limit the Developer, in any manner, at the Developer's sole discretion, from encumbering the Sign or Property or any portion thereof or any improvements thereon by any mortgage, deed of trust or other security device. The City acknowledges that the lender(s) providing such financing may require certain Agreement interpretations and modifications and agrees, upon request, from time to time, to meet with the Developer and representatives of such lender(s) to negotiate in good faith any such request for interpretation or modification. The City will not unreasonably withhold its consent to any such requested interpretation or modification provided such interpretation or modification is consistent with the intent and purposes of this Agreement. 13. Not a Public Dedication. Except as otherwise expressly provided herein, nothing herein contained shall be deemed to be a gift or dedication of the Property, or any portion thereof, to the general public, for the general public, or for any public use or purpose whatsoever, it being the intention and understanding of the Parties that this Agreement be strictly limited to and for the purposes herein expressed. 14. Notices. Except as provided otherwise in Section 3.7.c, all notices under this Agreement shall be in writing and shall be deemed delivered when personally received by the addressee, or within three (3) calendar days after deposit in the United States mail by registered or certified mail, postage prepaid, return receipt requested, to the following parties and their counsel at the addresses indicated below, provided, however, if any Party to this Agreement delivers a notice or causes a notice to be delivered to any other Party to this Agreement, a duplicate of that notice shall be concurrently delivered to each other Party and their respective counsel. To City: City of Lake Elsinore 130 South Main Street Lake Elsinore, CA 92530 Attention: City Manager Mohr Affinity Development Agreement 123014 14 With a Copy to: Barbara Zeid Leibold Leibold McClendon & Mann, P.C. 23422 Mill Creek Drive, Suite 105 Laguna Hills, CA 92653 To the Developer: Mohr Affinity, LLC 13457 Brooks Drive Baldwin Park, CA 91706 Attention: Johnny Mohr With a Copy to Athena Property Management 41 Corporate Park, Suite 260 Irvine, CA 92606 Attention: Mike Gardner Notice given in any other manner shall be effective when received by the addressee. The addresses for notices maybe changed by notice given in accordance with this provision. 15. Severability and Termination. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, or if any provision of this Agreement is superseded or rendered unenforceable according to any law which becomes effective after the Effective Date, the Developer may elect either (i) to have the remaining provisions of this Agreement remain in full force and effect and continue to be binding on both Parties, (ii) to propose an amendment of this Agreement, subject to the mutual consent of the Parties, or (iii) to declare that this Agreement shall become null and void as to all obligations then remaining unperformed and that this Agreement shall be terminated. 16. Time of Essence. Time is of the essence for each provision of this Agreement of which time is an element. 17. Force Ma e� ure. Any period of delay caused by acts of God; civil commotion; war; insurrection; riots; strikes; walk outs; picketing or other labor disputes; unavoidable shortages of materials or supplies; damages to work in progress by reason of fire, flood, earthquake or other casualty; litigation which prohibits or delays performance of the Agreement; moratoria; judicial decisions; or any other cause which is not within the reasonable control of the Parties may extend the duration of the Agreement. Each Party will promptly notify the other Party of any delay hereunder as soon as possible after the same has been ascertained, and the term of this Agreement will be extended by the period of any such delay. Notwithstanding Section 13.3, any claim for delay must be presented within 30 days of knowledge of the cause of such delay or any entitlement to time extension will be deemed waived. Notwithstanding the foregoing, in no event shall Owner be entitled to a permitted delay due to an inability to obtain financing or proceed with development as a result of general market conditions, interest rates, or other similar circumstances that make development impossible, commercially impracticable, or infeasible. Mohr Affinity Development Agreement 123014 15 18. Waiver. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the Party against whom enforcement of such waiver is sought. 19. No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the Developer and the City and their successors and assigns. No other person shall have any right of action based upon any provision of this Agreement. 20. Attorneys' Fees. If any Party commences any action for the interpretation, enforcement, termination, cancellation or rescission of this Agreement, or for specific performance for the breach hereof, the prevailing Party shall be entitled to its reasonable attorneys' fees, litigation expenses and costs. Attorneys' fees under this Section shall include attorneys' fees on any appeal as well as any attorneys' fees incurred in any post judgment proceedings to collect or enforce the judgment. 21. Incorporation of Exhibits. The following exhibits which are part of this Agreement are attached hereto and each of which is incorporated herein by this reference as though set forth in full: Exhibit "A" -- Property Legal Description Exhibit `B" -- Expansion Concept Exhibit "C" -- Preliminary Design — Collier Median and Bridge Identification Sign Improvements Exhibit "D" -- Escrow Instructions — Fund Control Agreement 22. Authority to Execute; Binding Effect. The City and the Developer each represents and warrants that it has the power and authority to execute this Agreement and, once executed, this Agreement shall be final and binding on the Parties. The Parties represent that the signatories to this Agreement are duly authorized to sign on behalf of the respective Party and bind such Party. 23. Entire Agreement; Conflicts. This Agreement represents the entire understanding and agreement of the Parties. This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the Parties with respect to all or any part of the subject matter hereof. Should any or all of the provisions of this Agreement be found to be in conflict with any other provision or provisions found in the Applicable Rules, then the provisions of this Agreement shall prevail. There are no oral or written representations, understandings, or ancillary covenants, undertakings or agreements which are not expressly contained herein. No testimony or evidence of any such representations, understandings or covenants shall be admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this Agreement. 24. Counterparts. The Parties may execute this Agreement on separate signature pages which, when attached hereto, shall constitute one complete Agreement. 25. Applicable Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California. Mohr Affinity Development Agreement 123014 16 26. Further Actions. Each Party shall cooperate with and provide reasonable assistance to the other Party to the extent contemplated in the performance of all obligations under this Agreement and the satisfaction of the conditions of this Agreement. Upon the request of either Party at any time, the other Party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary or desirable under the terms of this Agreement or to evidence or consummate the transactions contemplated by this Agreement. 26. Recording. The City Clerk shall cause a copy of this Agreement (including all Exhibits) to be executed by the City and recorded with the Office of the County Recorder of Riverside County, California within ten (10) days after passage by the City Council of the Ordinance approving this Agreement. IN WITNESS WHEREOF, the Parties have each executed this Agreement as of the date first written above. CITY OF LAKE ELSINORE, a California municipal corporation By: Its: ATTEST: City Clerk APPROVED AS TO FORM: City Attorney MOHR AFFINITY, LLC, a California limited liability company By: Its: Mohr Affinity Development Agreement 123014 17 EXHIBIT "A" PROPERTY LEGAL DESCRIPTION [To Be Attached] Mohr Affinity Development Agreement 123014 EXHIBIT "A" EXHIBIT "B" EXPANSION CONCEPT [To Be Attached] Mohr Affinity Development Agreement 123014 EXHIBIT "B" EXHIBIT "C" COLLIER MEDIAN IMPROVEMENTS and FREEWAY BRIDGE IDENTIFICATION SIGN ARY DESIGN Cl - • :- Mohr Affinity Development Agreement 123014 EXHIBIT "C" EXHIBIT "D" ESCROW INSTRUCTIONS — FUND CONTROL AGREEMENT [To Be Attached] Mohr Affinity Development Agreement 123014 EXHIBIT "D"