HomeMy WebLinkAboutOrd. No. 2015-1330ORDINANCE NO. 2015 -1330
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LAKE
ELSINORE, CALIFORNIA, APPROVING OF A DEVELOPMENT
AGREEMENT BETWEEN THE CITY OF LAKE ELSINORE AND MOHR
AFFINITY, LLC (LAKE ELSINORE OUTLET CENTER)
WHEREAS, Athena Property Management (the "Applicant "), filed a request on
behalf of Mohr Affinity LLC, (the "Property Owner "), with the City of Lake Elsinore
requesting approval of a Development Agreement for the Outlet Center Property
located at 17600 Collier Avenue (APN 389 - 210 -063, 063 & 066) (the "Property "); and
WHEREAS, the Development Agreement request is being processed pursuant
to California Government Code Sections 65864 - 65869.5 and Lake Elsinore Municipal
Code Chapter 19.12 to vest the General Plan, Specific Plan and land use regulations
governing the Property and applicable development impact fees primarily to bring
certainty and stability to the City regulations applicable to the future use and expansion
of the Outlet Center: and
WHEREAS, the Development Agreement will provide benefits and assurances
to both the City of Lake Elsinore and Mohr Affinity LLC in implementing mutually
desirable improvements; and
WHEREAS, Government Code section 65867 and LEMC 19.12.060 require
that the Planning Commission review the proposed Development Agreement and
make a recommendation to the City Council regarding approval of the Development
Agreement based upon certain findings including consistency with the City's General
Plan; and
WHEREAS, following a duly noticed public hearing on January 6, 2015, the
Planning Commission of the City of Lake Elsinore unanimously approved PC
Resolution No. 2015 -01 making certain findings and recommending approval of the
proposed Development Agreement by the City Council; and
WHEREAS, on January 27, 2015 at a duly noticed public hearing the City
Council accepted public oral and written testimony.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF LAKE
ELSINORE, CALIFORNIA, DOES HEREBY ORDAIN, DETERMINE AND ORDER AS
FOLLOWS:
SECTION 1, The City Council has considered the Development Agreement
and the main terms and conditions thereof, including the vesting of City rules,
regulations and official policies governing the future expansion of the Outlet Center
and the completion of Collier Avenue median improvements and installation of a
freeway bridge sign at the 1 -15 Freeway and Nichols Road and finds that the
Development 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 Outlet
CITY COUNCIL ORDINANCE NO. 2015 -1330
PAGE 2OF3
Center and completion of public improvements and that entry into the Development
Agreement is in furtherance of the goals, objectives and policies of the City's General
Plan and of benefit to the public.
SECTION 2. The City Council has considered the California Environmental
Quality Act (CEQA) Guidelines and that a Final Environmental Impact Report (FEIR)
was certified in June 1990 and that the Development Agreement is Categorically
Exempt pursuant to Class 2 — CEQA Guidelines Section 15302, Replacement or
Reconstruction, and Class 15 — CEQA Guidelines 15315, Minor Land Division.
SECTION 3. That based upon the staff report and the testimony received at the
public hearing, the City of Lake Elsinore City Council makes the following findings and
determinations for approval of the Development Agreement for the Outlet Center:
1. The Development Agreement is consistent with the objectives, goals, policies,
general land uses and programs specified in the General Plan and Outlet
Center Specific Plan.
2. The Development Agreement is compatible with the uses authorized in, and the
regulations prescribed for, the land use district in which the real property is
located.
3. The Development Agreement is in conformity with public convenience, general
welfare and good land use practices.
4. The Development Agreement will not be detrimental to the general health,
safety, comfort, or general welfare of persons residing or working within the
area, or injurious to property or improvements in the area or the City.
5. The Development Agreement will not adversely affect the orderly development
of property or the preservation of property values.
6. The Development Agreement is consistent with the provisions of Government
Code Sections 65864 through 65869.5.
7. The Development Agreement sets forth provisions and stipulations that will
provide mutual benefits and assurances to the City and property owner and
improve the area as a gateway to Lake Elsinore.
8. The property owner has made significant investment in improvements to the
Outlet Center and is cooperating and coordinating with the City on provisions
set forth in the Development Agreement.
SECTION 4. If any provision, clause, sentence or paragraph of this Ordinance
or the Development Agreement thereof to any person or circumstance shall be held
invalid, such invalidity shall not affect the other provisions of this Ordinance and are
hereby declared to be severable.
CITY COUNCIL ORDINANCE NO. 2015 -1330
PAGE 3 OF 3
SECTION 5. This Ordinance shall take effect thirty (30) days after the date of
its final passage. The City Clerk shall certify as to adoption of this Ordinance and
cause this Ordinance to be published and posted in the manner required by law.
PASSED, APPROVED, AND INTRODUCED at a regular meeting of the City
Council of the City of Lake Elsinore, California, on the 27th day of January, 2015, and
adopted at a regular meeting of the City Council f the City of Lake Elsinore, California
on the 10th day of February 2015. 77
ATTEST:
Mayor
Virginib�Dloom4Fity Clerk
D AS TO
id �eibold, City Attorney
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( km il.R'i
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Virginib�Dloom4Fity Clerk
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id �eibold, City Attorney
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss.
CITY OF LAKE ELSINORE )
I, Virginia Bloom, City Clerk of the City of Lake Elsinore, California, hereby certify
that Ordinance No. 2015 -1330 was introduced at the regular City Council
meeting of January 27, 2015, and adopted at the regular meeting of February 10,
2015, by the following roll call vote:
AYES: Council Member
Member Hickman
NOES: None
ABSENT: None
B TAIN None h�
Virginia . Bloo City Clerk
Johnson, Council Member Magee, Council
Mayor Pro Tern Tisdale, and Mayor Manos
RECORDING 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 AGREEMENT
by and between
CITY OF LAKE ELSINORE
and
MOHR AFFINITY, LLC, a limited liability company
Mohr Affinity Development Agreement 020215
TABLE OF CONTENTS
1.
Definitions .................................................................................................. ..............................3
2.
General Provisions ..................................................................................... ..............................4
2.1.
Agreement Personal to Developer ..................................................... ..............................4
2.2.
Negation of Agency ........................................................................... ..............................4
2.3.
Public Benefit and Consideration ...................................................... ..............................5
2.4.
Existing Use of the Properly and Completion of Property Improvements....... ...............
5
2.5.
Agreement does not Authorize Development .................................... ..............................5
2.6.
City not Required to Approve any Development Application ........... ..............................5
2.76
Enforcement of Agreement; Subsequent Rules ................................. ..............................5
3.
Development Standards for the Property; Applicable Rules ..................... ..............................6
3616
Rules, Regulations, Official Policies ................................................. ..............................6
4.
Acknowledgments, Agreements and Assurances on the Part of the City .. ..............................7
4.1.
Entitlement to Devel op ...................................................................... ..............................7
4.2.
Subsequent Enactments ..................................................................... ..............................7
4.3.
Future Approvals. ............................................................................................. 66 .......
8
4.4.
Timing of Development ..................................................................... ..............................8
4.5.
Fees and Exactions ............................................................................. ..............................8
5.
Acknowledgments, Agreements and Assurances on the Part of the Developer ......................9
5.1
Development Agreement Fees ........................................................... ..............................9
5.2
Completion of Property Improvements ............................................. ..............................9
5.3
Collier Avenue Median Improvements .............................................. ..............................9
5.4
Freeway Bridge Identification Sign. ........................... 6..6.6 .............................................
10
565
Escrow ............................................................................................... .............................10
6.
Cooperation and Implementation .............................................................. .............................10
6.1.
Further Assurances; Covenant to Sign Documents .......................... .............................10
6.2.
Processing .......................................................... ...........................6... ...............6.6...........11
6.3.
Defense of Agreement and Processing Entitlements During Third Party Litigation .....
11
76
Compliance; Termination; Modifications and Amendments .................... .............................12
7.1.
Review of Compliance ...................................................................... .............................12
7.2
Events of Default .............................................................................. .............................12
7.3
Remedies ........................................................................................... .............................12
7.4
No Waiver ................................................................................:........ .............................13
7.5
Effect of Termination ........................................................................ .............................13
7.6.
Modification or Amendment of Development Agreement ............... .............................13
8.
Operating Memoranda..... .................................. 66.66 ........................................... 6.6.6 ...............
13
9.
Tenn of Agreement ................................................................................... .............................14
10.
Estoppel Certificate ................................................................................... .............................14
11.
Transfers and Assignments ....................................................................... .............................14
12.
Mortgagee Protection ................................................................................ .............................14
13.
Not a Public Dedication ............................................................................ .............................15
14.
Notices ...................................................................................................... .............................15
15.
Severability and Termination .................................................................... .............................15
16.
Time of Essence ........................................................................................ .............................16
Mohr Affinity Development Agreement 020215
17. Force Majeure
18. Waiver ...................................................................... ...............................
19. No Third ratty Beneficiaries ................................... ...............................
20. Attorneys' Fees ........................................................ ...............................
21. Incorporation of Exhibits ......................................... ...............................
22. Authority to Execute; Binding Effect ...................... ...............................
23. Entire Agreement; Conflicts .................................... ...............................
24. Counter parts ............................................................. ...............................
25. Applicable Law ........................................................ ...............................
26. Further Actions ........................................................ ...............................
27. Recording ................................................................. ...............................
Mohr Affinity Development Agreement 020215
16
16
16
16
16
17
17
17
17
17
17
LIST OF EXHIBITS
EXHIBIT "A" PROPERTY LEGAL DESCRIPTION
EXHIBIT "B" EXPANSION CONCEPT
EXHIBIT "C" COLLIER MEDIAN IMPROVEMENTS AND
FREEWAY BRIDGE IDENTIFICATION SIGN
PRELIMINARY SITE PLAN & ELEVATIONS
EXHIBIT "D" ESCROW INSTRUCTIONS - FUND CONTROL AGREEMENT
Mohr Affinity Development Agreement 020215
tit
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, et seq. (the "Development Agreement
Statutes ") authorize the City to enter into an agreement with any person or business entity having
a legal or equitable interest in real property regarding the future development of such property.
B. Government Code Section 65864 states that the lack of certainty in the approval
process can result in a waste of resources and escalate the cost of development. Assurance to the
applicant through a development agreement that the applicant may proceed with development in
accordance with existing policies, rules and regulations, and subject to conditions of approval,
will strengthen the public planning process, encourage private participation in comprehensive
planning and reduce the economic costs of development.
C. Pursuant to Government Code Section 65865, the City has adopted the following
rules and regulations establishing procedures and requirements for consideration of development
agreements: Lake Elsinore Municipal Code (LEMC) Chapter 19.12 (the "Development
Agreement Procedures "). This Agreement has been processed, considered and executed in
accordance with the Development Agreement Statutes and the Development Agreement
Procedures.
D. The property which is the subject of this Agreement (the "Property ") consists of
approximately 46.5 acres comprised of APNs 389 - 210 -063, 064 and 066 and commonly known
as the Outlets at Lake Elsinore located at 17600 Collier Avenue in the City of Lake Elsinore with
a General Plan land use and zoning designation of "Lake Elsinore Outlet Center Specific Plan"
( "Specific Plan "). The Property is more particularly described as set forth in the Legal
Description attached hereto as Exhibit "A" and incorporated herein by reference.
E. The Developer is 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,
development costs could increase resulting in a strong likelihood that development would not
Mohr Affinity Development Agreement 020215
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 ".
Fl. 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.
1. 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 -1330 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
provisions of this Agreement are consistent with, and fulfill the objectives of, the General Plan
Mohr Aninily Development Agreement 020215
F)
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
Definitions.
In this Agreement, unless the context otherwise requires:
"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.
"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.
Lake Elsinore.
"Bridge Identification Sign" is defined in Section 5.4.
"City General Plan" or "General Plan" shall mean the General Plan of the City of
"Collier Median Improvements" is defined in Section 5.3.
"Community Development Director" shall mean the Director of Community
Development of the City of Lake Elsinore, or designee.
"Development Agreement Fees" shall mean the Initial DAG Fee and the
Commercial DAG Fees as defined in Section 5.1 of this Agreement.
"Effective Date" is the effective date of this Agreement which is March 12, 2015,
the date Ordinance No. 2015 -1330 approving this Agreement becomes effective.
"Escrow" shall mean the escrow established with a mutually agreed upon
"Escrow Agent" in accordance with Section 5.5 of this Agreement.
"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 -
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.
Mohr Affinity Development Agreement 020215
3
"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.
"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.
"LEMC" mean the Lake Elsinore Municipal Code.
"Property" is the real property that is the subject of this Agreement identified in
Recital D and described in Exhibit "A ".
"Specific Plan" is the "Lake Elsinore Outlet Center Specific Plan" as amended by
Amendments No. 1 through No. 4 as of the Effective Date.
"Subsequent Rules" means any Law enacted after the Effective Date, including
the Laws set forth in Section 2.7.
"Tern" shall mean the tern 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 1 I of this Agreement.
2.2. Negation of Agency.
"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.
"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.
"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.
"LEMC" mean the Lake Elsinore Municipal Code.
"Property" is the real property that is the subject of this Agreement identified in
Recital D and described in Exhibit "A ".
"Specific Plan" is the "Lake Elsinore Outlet Center Specific Plan" as amended by
Amendments No. 1 through No. 4 as of the Effective Date.
"Subsequent Rules" means any Law enacted after the Effective Date, including
the Laws set forth in Section 2.7.
"Tern" shall mean the tern 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 1 I of this Agreement.
2.2. Negation of Agency.
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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 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.
Mohr Affinity Development Agreement 020215
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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 I -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 ").
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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 "):
Applicable Rules:
a. The following "Existing Land Use Rules" shall be part of the
i. 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;
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
as in effect as of the issuance of building permits for development of the Property at any time
throughout the Tenn.
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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
as in effect as of the issuance of building permits for development of the Property at any time
throughout the Tenn.
Mohr Affinity Development Agreement 020215
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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 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.
Mohr Affinity Development Agreement 020215
7
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 020215
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 5.5 of this Agreement.
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 5.5 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 existing Collier Avenue
median between Nichols Road and Riverside Drive in conformance with the final design plans
and specifications approved by the City Engineer ( "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 plans and specifications shall be substantially
consistent with the preliminary site plan 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
Mohr Affinity Development Agreement 020215
constructing the Collier Median Improvements 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.
5.4 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 final design plans and
specifications approved by CALTRANS and the City Engineer ( "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 final approved design plans and specifications shall be
substantially consistent with the preliminary elevations attached as Exhibit "C" to this
Agreement. The Developer shall be responsible for the fabrication and installation of, and shall
let contracts for (or cause contracts to be let for) the fabrication and installation of the Bridge
Identification Sign. All costs incurred for any reason in fabricating 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.
5.5 Escrow.
On or before the Effective Date, the Developer shall deposit One Million
Dollar ($1,000,000) into an Escrow established by City with a 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. La. 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.
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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 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:
a. The processing of applications for and the issuance of all the
Future Approvals;
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 Entitlements 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 subject to Section 7.5 provided, however, that such lawsuit 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.
Mohr Affinity Development Agreement 020215
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.
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 raider 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.
Mohr Affinity Development Agreement 020215
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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 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 right to the Applicable Rules as to Future Approvals 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, 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.
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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 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.
Mohr Aninity Development Agreement 020215
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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.
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 palsies 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
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
Mohr Affinity Development Agreement 020215
15
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 Majeure.
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 tern of this
Agreement will be extended by the period of any such delay. Notwithstanding Section 7.4, 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.
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 successes 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 costa. 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:
Mohr Affinity Development Agreement 020215
16
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.
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.
27. 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,
Mohr Affinity Development Agreement 020215
17
California within ten (10) days after passage by the City Council of Ordinance No. 2015 -1330
approving this Agreement.
IN WITNESS WHEREOF, the Parties have each executed this Agreement as of the date
first written above.
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
CITY OF LAKE ELSINORE,
a California municipal corporation
By:
Steve Manes, Mayor
MOHR AFFINITY, LLC, a California limited
liability company
By:
Johnny Mohr, Managing Member
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A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA
County of
On
before me,
Notary Public, personally appeared who proved to me on
the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the
within instrument and acknowledged to me that he /she /they executed the same in his /her /their
authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct
WITNESS my hand and official seal.
Signature of Notary
(Affix seal here)
Mohr Affinity Development Agreement 020215
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA
County of
On , before me, a
Notary Public, personally appeared who proved to me on
the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the
within instrument and acknowledged to me that he /she /they executed the same in his /her /their
authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct
WITNESS my hand and official seal.
Signature of Notary
(Affix seal here)
Mohr Affinity Development Agreement 020215
EXHIBIT "A"
PROPERTY LEGAL DESCRIPTION
[Attached]
Mohr Affinity Development Agreement 020215
EXHIBIT "A"
LEGAL DESCRIPTION
EXHIBIT "A"
PARCEL 1
PARCEL 1 OF LOT LINE ADJUSTMENT 2008 -810, IN THE CITY OF LAKE ELSINORE, COUNTY OF RIVERSIDE,
STATE OF CALIFORNIA, RECORDED JANUARY 26, 2009 AS INSTRUMENT NO. 2009 -36445 OF OFFICIAL
RECORDS, WHICH IS DESCRIBED AS FOLLOWS:
THAT PORTION OF GOVERNMENT LOT 3 OF FRACTIONAL SECTION 25, TOWNSHIP 5 SOUTH, RANGE 5 WEST,
SAN BERNARDINO MERIDIAN, IN THE CITY OF LAKE ELSINORE, COUNTY OF RIVERSIDE, STATE OF
CALIFORNIA, DESCRIBED AS FOLLOWS:
COMMENCING AT THE INTERSECTION OF THE SOUTH LINE OF SAID FRACTIONAL SECTION 25 AND THE
RANCHO LA LAGUNA LINE OF BLOCK "A" OF THE RANCHO LA LAGUNA, AS SHOWN BY MAP RECORDED IN
BOOK 8, PAGE 377, OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY;
THENCE, NORTH 460 51' 59" WEST ALONG SAID RANCHO LA LAGUNA LINE, 3,424.79 FEET TO A POINT
THEREIN;
THENCE, NORTH 430 08' 01" EAST, 36.00 FEET FOR THE TRUE POINT OF BEGINNING;
THENCE, CONTINUING NORTH 430 08' Ol" EAST, 326.47 FEETTO A POINT IN THE SOUTHWESTERLY RIGHT
OF WAY LINE OF INTERSTATE HIGHWAY NO. 15, PER THE FINAL ORDER OF CONDEMNATION RECORDED
AUGUST 27, 1980 AS INS] UMENT NO. 155548, OFFICIAL RECORDS;
THENCE, NORTH 510 181081t WEST ALONG SAID SOUTHWESTERLY RIGHT OF WAY LINE, 91.49 FEETTOTHE
BEGINNING OF A TANGENT CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 1,000.00 FEET;
THENCE, NORTHWESTERLY ALONG SAID CURVE, TO THE RIGHT, THROUGH A CENTRAL ANGLE OF 000 32'
55", AN ARC DISTANCE OF 9.58 FELT TO A POINT IN THE SOUTH LINE OF THE NORTH HALF OF SAID
FRACTIONAL SECTION 25, THE RADIAL LINE AT SAID POINT BEARS SOUTH 390 14'47" WEST;
THENCE, NORTH 890 46113" WEST ALONG SAID SOUTH LINE, 466.90 FEET TO A POINT IN A NON- TANGENT
CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 750.00 FEET, THE RADIAL LINE AS SAID
POINT BEARS SOUTH 450 51' 35" WEST;
THENCE, SOUTHEASTERLY ALONG SAID CURVE, TO THE LEFT, THROUGH A CENTRAL ANGLE OF 020 43' 34 ",
AN ARC DISTANCE OF 35.68 FEET TO A POINT IN A LINE PARALLEL WITH AND DISTANT NORTHEASTERLY
36.00 FEET, MEASURED AT A RIGHT ANGLE, FROM SAID RANCHO lA LAGUNA LINE;
THENCE, SOUTH 460 51' 59" EAST ALONG SAID PARALLEL LINE, 407.11 FEET TO THE TRUE POINT OF
BEGINNING.
PARCEL 2:
PARCEL 2 OF LOT LINE ADJUSTMENT 2008-810, IN THE CITY OF LAKE ELSINORE, COUNTY OF RIVERSIDE,
STATE OF CALIFORNIA, RECORDED JANUARY 26, 2009 AS INSTRUMENT NO. 2009 -36445 OF OFFICIAL
RECORDS, WHICH IS DESCRIBED AS FOLLOWS:
THOSE PORTIONS OF GOVERNMENT LOTS 3, 41 AND 5 OF FRACTIONAL SECTION 25, TOWNSHIP 5 SOUTH,
RANGE 5 WEST, SAN BERNARDINO MERIDIAN, IN THE CITY OF LAKE ELSINORE, COUNTY OF RIVERSIDE,
STATE OF CALIFORNIA, BEING PORTIONS OF PARCELS 2 AND 3 OF LOT LINE ADJUSTMENT NO. 92 -07,
RECORDED MAY 20, 1993 AS INSTRUMENT NO. 189670 OF OFFICIAL RECORDS, DESCRIBED AS FOLLOWS:
COMMENCING AT THE INTERSECTION OF THE SOUTH LINE OF SAID FRACTIONAL SECTION 25 AND THE
RANCHO LA LAGUNA LINE OF BLOCK "A" OF THE RANCHO LA LAGUNA, AS SHOWN BY MAP RECORDED IN
BOOK 8, PAGE 377, OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY;
THENCE, NORTH 460 51' 59" WEST ALONG SAID RANCHO LA LAGUNA LINE, 3,424.79 FEET TO A POINT
THEREIN;
EXHIBIT "A" (continued)
THENCE, NORTH 430 08' Ol" EAST, 36.00 FEET FOR THE TRUE POINT OF BEGINNING;
THENCE, CONTINUING NORTH 430 08' Ol" EAST, A DISTANCE OF 326.47 FEET, TO A POINT IN THE
SOUTHWESTERLY RIGHT OF WAY LINE OF INTERSTATE HIGHWAY NO. 15 PER FINAL ORDER OF
CONDEMNATION RECORDED AUGUST 27, 1980 AS INSTRUMENT NO. 155548, OF OFFICIAL RECORDS OF
RIVERSIDE COUNTY, CALIFORNIA;
THENCE, SOUTH 510 18' 08" EAST ALONG SAID SOUTHWESTERLY RIGHT OF WAY LINE, A DISTANCE OF
1171.90 FEET TO AN ANGLE POINT THEREIN;
THENCE, SOUTH 510 14' 36" EAST ALONG SAID SOUTHWESTERLY RIGHT OF WAY LINE, A DISTANCE OF
457.95 FEET TO AN ANGLE POINT THEREIN;
THENCE, SOUTH 510 17' 11" EAST ALONG SAID SOUTHWESTERLY RIGHT OF WAY LINE, A DISTANCE OF
50.10 FEET TO A POINT THEREIN;
THENCE, SOUTH 380 43' 48" WEST, A DISTANCE OF 185.18 FEET;
THENCE, NORTH 510 16' 12" WEST, A DISTANCE OF 11.17 FEET;
THENCE, SOUTH 380 431-18" WEST, A DISTANCE OF 271.23 FEET TO A POINT IN A LINE PARALLEL WITH AND
DISTANT NORTHEASTERLY 36.00 FEET, MEASURED AT A RIGHT ANGLE, FROM SAID RANCHO LA LAGUNA
LINE;
THENCE, NORTH 460 51' 59" WEST, ALONG SAID PARALLEL LINE, 1698.86 FEET TO THE TRUE POINT OF
BEGINNING.
PARCEL 3
THOSE PORTIONS OF GOVERNMENT LOTS 4, 5 AND 6 OF FRACTIONAL SECTION 25,
TOWNSHIP 5 SOUTH, RANGE 5 WEST, SAN BERNARDINO MERIDIAN, IN THE CITY OF LAKE
ELSINORE, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL
PLAT THEREOF, DESCRIBED AS FOLLOWS:
COMMENCING AT THE INTERSECTION OF THE SOUTH LINE OF SAID FRACTIONAL SECTION 25,
AND THE RANCHO LA LAGUNA LINE OF BLOCK "A" OF THE RANCHO LA LAGUNA, AS PER MAP
RECORDED IN BOOK 8, PAGE 377, OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF
SAN DIEGO COUNTY;
THENCE, NORTH 890 24' 07" EAST ALONG SAID SOUTH LINE OF
FRACTIONAL SECTION 25, 52.08 FEET TO POINT IN A LINE PARALLEL WITH AND DISTANT
NORTHEASTERLY 36.00 FEET, MEASURED AT A RIGHT ANGLE, FROM SAID RANCHO LA LAGUNA
LINE FOR THE TRUE POINT OF BEGINNING, SAID POINT BEING IN THE SOUTH LINE OF
PARCEL A, AS CONVEYED TO HEARTLAND LAKE ELSINORE LIMITED PARTNERSHIP BY DEED
RECORDED AUGUST 17, 1990 AS INSTRUMENT NO. 306989, OFFICIAL RECORDS;
THENCE, CONTINUING NORTH 890 24107" EAST ALONG SAID SOUTH LINE OF FRACTIONAL SECTION 25,
AND ALONG SAID SOUTH LINE OF PARCEL At 910.06 FEET TO THE SOUTHEAST CORNER OF
SAID PARCEL A, SAID POINT BEING IN A NON- TANGENT CURVE, CONCAVE TO THE EAST,
HAVING A RADIUS OF 260.00 FEET, THE RADIAL LINE AT SAID POINT BEARS SOUTH 760 56'
45" WEST;
THENCE, NORTHERLY ALONG THE EASTERLY LINE OF SAID PARCEL A AND ALONG
SAID CURVE, TO THE RIGHT, THROUGH A CENTRAL ANGLE OF 120 30' 2911, AN ARC DISTANCE
OF 56.76 FEET TO A POINT IN THE SOUTHWESTERLY RIGHT OF WAY LINE OF INTERSTATE
HIGHWAY NO. 15, PER THE FINAL ORDER OF CONDEMNATION RECORDED AUGUST 27, 1980
AS INSTRUMENT NO. 155548, OFFICIAL RECORDS, THE RADIAL LINE AT SAID POINT BEARS
SOUTH 890 27' 14" WEST; THE FOLLOWING SEVEN (7) COURSES AND DISTANCES FOLLOW
THE SOUTHWESTERLY RIGHT OF WAY LINE OF INTERSTATE HIGHWAY NO. 15 PER SAID FINAL
ORDER OF CONDEMNATION RECORDED AS AFORESAID;
THENCE, NORTH 500 24' 25" WEST, 59.70 FEE1 TO THE BEGINNING OF A TANGENT CURVE,
EXHIBIT "A" (continued)
CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 2,500.00 FEET;
THENCE, NORTHWESTERLY ALONG SAID CURVE, TO THE LEFT, THROUGH A CENTRAL ANGLE
OF 040 4645", AN ARC DISTANCE OF 208.53 FEET" TO THE END THEREOF;
THENCE, NORTH 550 11' 10" WEST, 63.20 FEET TO THE BEGINNING OF A TANGENT CURVE,
CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 2,500.00 FEET;
THENCE, NORTHWESTERLY ALONG SAID CURVE, TO THE RIGHT, THROUGH A CENTRAL ANGLE
OF 020 56'39", AN ARC DISTANCE OF 128.46 FEET TO THE END THEREOF;
THENCE, NORTH 520 14' 31" WEST, 590.88 FEET TO AN ANGLE POINT THEREIN;
THENCE, NORTH 510 16' 12" WEST, 810.02 FEET TO AN ANGLE POINT THEREIN;
THENCE, NORTH 510 17' 11" WEST, 550.43 FEET TO A POINT THEREIN;
THENCE, SOUTH 380 43' 48" WEST, 185.18 FEET;
THENCE, NORTH 510 16' 12" WEST, 11.17 FEET;
THENCE, SOUTH 380 43' 48" WEST, 271,23 FEET TO A POINT IN A LINE PARALLEL WITH AND
DISTANT NORTHEASTERLY 36.00 FEET, MEASURED AT A RIGHT ANGLE, FROM SAID RANCHO
LA LAGUNA LINE;
THENCE, SOUTH 460 51'59" EAST ALONG SAID PARALLEL LINE, 811.38 FEET TO THE
BEGINNING OF A TANGENT CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF
38.00 FEET;
THENCE, SOUTHEASTERLY ALONG SAID CURVE, TO THE LEFT, THROUGH A CENTRAL ANGLE OF
140 51' 14 ", AN ARC DISTANCE OF 9.85 FEET TO THE END THEREOF;
THENCE, SOUTH 610 00' 29" EAST, 35.44 FEET TO THE BEGINNING OF A TANGENT CURVE,
CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 62.00 FEET;
THENCE, SOUTHEASTERLY ALONG SAID CURVE, TO THE RIGHT, THROUGH A CENTRAL ANGLE
OF 140 51' 14 ", AN ARC DISTANCE OF 16.07 FEET TO THE END THEREOF;
THENCE, SOUTH 460 51' 59" EAST, 110.00 FEET;
THENCE, NORTH 850 55155" EAST, 33.75 FEET;
THENCE, SOUTH 510 16' 12" EAST, 74.00 FEET;
THENCE, SOUTH 380 43' 48" WEST, 21.28 FEET;
THENCE, SOUTH 040 04' 05" EAST, 31.25 FEET TO A POINT IN A LINE PARALLEL WITH AND
DISTANT NORTHEASTERLY 36.00 FEET, MEASURED AT A RIGHT ANGLE, FROM SAID RANCHO
LA LAGUNA LINE;
THENCE, SOUTH 460 51159" EAST ALONG SAID PARALLEL LINE, 660.90 FEET TO THE TRUE
POINT OF BEGINNING.
PARCEL 4:
EASEMENTS FOR ROAD, PARKING, SIDEWALKS, COMMON AREA, UTILITIES, SIGNS AND
CONSTRUCTION AS MORE FULLY SET OUT IN THAT CERTAIN "MASTER DECLARATION AND
AGREEMENT OF EASEMENTS, COVENANTS, CONDITIONS, AND RESTRICTIONS" RECORDED
SEPTEMBER 8, 1994 AS INSTRUMENT NO. 347574, OFFICIAL RECORDS AND AS AMENDED BY
"FIRST AMENDMENT TO MASTER DECLARATION AND AGREEMENT OF EASEMENTS,
COVENANTS, CONDITIONS AND RESTRICTIONS" RECORDED MARCH 27, 1995 AS INSTRUMENT
NO. 92738, OFFICIAL RECORDS AND AS AMENDED BY "SECOND AMENDMENT TO MASTER
DECLARATION AND AGREEMENT OF EASEMENTS, COVENANTS, CONDITIONS AND
EXHIBIT "A" (continued)
RESTRICTIONS" RECORDED OCTOBER 12, 1995, AS INSTRUMENT NO. 340661, OFFICIAL
RECORDS.
EXHIBIT `B"
EXPANSION CONCEPT
[Attached]
MohrAffinity Development Agreement 020215
EXHIBIT "B"
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EXHIBIT "C"
COLLIER MEDIAN IMPROVEMENTS
and
FREEWAY BRIDGE IDENTIFICATION SIGN
PRELIMINARY SITE PLAN & ELEVATIONS
[Attached]
Mohr Affinity Development Agreement 020215
EXHIBIT "C"
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COLLIER MEDIAN IMPROVEMENTS
The Collier Avenue median improvements shall include the following minimum
specifications:
1) Two (2) Monument Signs (one at each end of the median project area).
2) Four (4) Artwork Pieces (one unit of artwork per median).
3) Water Efficient Irrigation
4) Drought Tolerant Landscaping Palette
NOTE: Irrigation
and Landscaping shall
be consistent
with Elsinore Valley
Municipal
Water District
Standards
as approved by
the City.
EXHIBIT "D"
ESCROW INSTRUCTIONS — FUND CONTROL AGREEMENT
[Attached]
Mohr Affinity Development Agreement 020215
EXHIBIT "D"
FUND CONTROL AGREEMENT
ESCROW AGENT:
OWNER: Mohr Affinity LLC FUNDAMOUNT: $11000,000
CITY: City of Lake Elsinore
PROJECT 17600 Collier Avenue
ADDRESS: Lake Elsinore, CA 92530
In connection with the obligations to pay Development Agreement Fees and complete certain improvements as
described in the Scope of Work attached to this Agreement (herein called the "Project ") the Owner shall deposit the
Fund Amount with you in accordance with this Agreement.
To induce Escrow Agent to handle said funds, City and Owner agree and instruct Escrow Agent as follows:
1. Escrow Agent shall not make payments to payees who do not provide tax identification numbers.
2. Escrow Agent shall disburse funds upon the approval and written order of one of the following Authorized
Representatives of City and one of the following Authorized Representatives of Owner, each of whom agrees to
order disbursements only in payment of expenses relatingto the Project which are due and payable.
City Authorized ' (Sign) Owner Authorized (Sign)
Representative Representative
City Authorized (Sign) Owner Authorized (Sign)
Representative Representative
NOTICE: BY SIGNING HERE, I ACKNOWLEDGE THAT I HAVE READ THIS AGREEMENT.
3. Escrow Agent shall conclusively presume any written order executed by an Authorized Representative is given in
accordance with the terms of this 'Agreement and that funds disbursed pursuant to said order are for the
purposes stated in the order.
4. Owner shall not assign any rights: hereunder or to funds held by Escrow Agent without City's written consent.
S. Should any claim or controversy arise regarding the Project or funds deposited, Escrow Agent shall not be
required to take any action, but may withhold all funds, without interest, until such claim or controversy is
resolved.
6. Except for the City of Lake Elsinore, each person signing this Agreement, whether as Owner, or as a person
authorized to order disbursements, jointly and severally, agrees to hold harmless Escrow Agent and each of its
officers, directors, employees, and shareholders from any and all claims, demands, liabilities and suits, including
those by any of the undersigned, made or brought for or on account of, or arising out of this Agreement.
7. Escrow Agent shall not be responsible for and does not guarantee (1) that the Project shall proceed, (2) that the
Project will be performed in accordance with contract requirements, or (3) that liens, stop notices or bond claims
will not be filed. Escrow Agent has no duty to determine that any labor and materials used in the job are in
accordance with the plans and specifications.
Notice: By initialing here, I acknowledge that 1 have read this page:
Owner's Initials: City's Initials:
FUND CONTROL AGREEMENT
PAGE
B. If there is no disbursement ordered for a continuous period of one hundred eighty days, Escrow Agent will inform
all parties of the inactivity.
9. The Escrow Agent fee will be paid by Owner or Contractor hen Escrow Agent is established or by deduction from
funds without further authorization.
10. ESCROW AGENT'S LIABILITY SHALL BE LIMITED TO THE AMOUNT OF ANY DISBURSEMENT (1) MADE WITHOUT
AUTHORIZATION OR (2) AS A RESULT OF ESCROW AGENT'S WILLFUL MISCONDUCT OR SOLE NEGLIGENCE.
ESCROW AGENT SHALL NOT BE LIABLE FOR ANY ACTS, OMISSIONS OR DAMAGES, FORSEEABLE OR
UNFORESEEABLE, OTHER THAN AS EXPRESSLY SET FORTH IN THIS PARAGRAPH.
11. These instructions cannot be revoked or modified without Escrow Agent's written consent.
12. The City of Lake Elsinore is a third -party beneficiary of this Agreement..
13. This is the entire Agreement and supersedes all prior agreements and understandings relating to the subject
matter hereof. The parties are not bound by an oral expression or representation by anyone purporting to act for
or on their behalf or by any agreement or arrangement not set forth herein. No waiver of any term or conditions
of this Agreement shall be a continuing waiver thereof.
14. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered
shall be deemed to be an original and all of which counterparts taken together shall constitute but one and the
same instrument. Signature pages may be detached from the counterparts and attached to a single copy of this
Agreement to physically form one document.
15. This agreement cannot be modified, including but not limited to terms, conditions, amendments, or other
stipulations without the written authorization from both the Owner and the City.
CITY AND OWNER ACKNOWLEDGE THAT: (1) BEFORE SIGNING THIS AGREEMENT, EACH RECEIVED AND READ A
LEGIBLE, COMPLETELY FILLED -IN COPY; (2) EACH UNDERSTANDS, APPROVES AND AGREES TO BE BOUND BY ALL OF
THE PROVISIONS HEREOF; (3) THAT ESCROW AGENT'S RESPONSIBILITIES UNDER THIS AGREEMENT ARE LIMITED
AND THAT IT WILL ACT IN ACCORDANCE WITH INSTRUCTIONS GIVEN TO IT BY THE PERSON(S) AUTHORIZED TO
ORDER DISBURSEMENTS.
By:
Owner (Date)
By:
City of Lake Elsinore (Date)