HomeMy WebLinkAboutItem No. 06 - 2nd Reading Ordinance Approv. 1st Amendment to DA Kind Delivery Co.City Council Agenda Report
City of Lake Elsinore 130 South Main Street
Lake Elsinore, CA 92530
www.lake-elsinore.org
File Number: ID# 21-357
Agenda Date: 10/12/2021 Status: Approval FinalVersion: 1
File Type: Council Consent
Calendar
In Control: City Council / Successor Agency
Agenda Number: 6)
Second Reading of the Ordinance Approving the First Amendment to the Development
Agreement with Kind Delivery Co.
Introduce by title only and waive further reading of AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF LAKE ELSINORE, CALIFORNIA, APPROVING THE FIRST AMENDMENT TO
DEVELOPMENT AGREEMENT NO. 2020-01 TO INCREASE THE TOTAL AREA FROM 3,754 SF TO
7,164.46 SF CANNABIS FACILITY WITHIN AN EXISTING BUILDING LOCATED AT 571 CRANE, UNIT H
(APN:377-410-032) AND 570 CENTRAL, UNIT G (APN:377-410-024).
Page 1 City of Lake Elsinore Printed on 10/7/2021
REPORT TO CITY COUNCIL
To: Honorable Mayor and Members of the City Council
From: Candice Alvarez, MMC, City Clerk
Date: October 12, 2021
Subject: Second Reading of the Ordinance Approving the First Amendment to the
Development Agreement with Kind Delivery Co.
Recommendation
Adopt by title only and waive further reading of AN ORDINANCE OF THE CITY COUNCIL OF
THE CITY OF LAKE ELSINORE, CALIFORNIA, APPROVING THE FIRST AMENDMENT TO
DEVELOPMENT AGREEMENT NO. 2020-01 TO INCREASE THE TOTAL AREA FROM 3,754
SF TO 7,164.46 SF CANNABIS FACILITY WITHIN AN EXISTING BUILDING LOCATED AT 571
CRANE, UNIT H (APN:377-410-032) AND 570 CENTRAL, UNIT G (APN:377-410-024).
Background
At its Regular meeting on September 28, 2021, the City Council introduced by title only and
waived further reading of the Ordinance.
Exhibit
Exhibit A – Ordinance
Exhibit B – Development Agreement
ORDINANCE NO. 2021-1461
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LAKE ELSINORE,
CALIFORNIA, APPROVING THE FIRST AMENDMENT TO DEVELOPMENT
AGREEMENT NO. 2020-01 TO INCREASE THE TOTAL AREA FROM 3,754 SF
TO 7,164.46 SF CANNABIS FACILITY WITHIN AN EXISTING BUILDING
LOCATED AT 571 CRANE STREET UNIT H (APN:377-410-032) AND 570
CENTRAL AVENUE UNIT G (APN:377-410-024)
Whereas, Kind Group Ventures, LLC has filed an application with the City of Lake Elsinore
(City) requesting approval of modifications to Development Agreement No. 2020-01 (Exhibit A)
and Conditional Use Permit No. 2020-01 that established a 3,754 SF Cannabis Facility within an
existing building (Project). The modified Project will increase the size by 3,410.46 SF for a total
Area of 7,164.46 SF. The total combined facility would include 2,050.1 SF of cultivation area,
1,942 SF of manufacturing space, 800.77 SF of retail dispensary space 1,395 SF of warehouse
and ancillary use space, 559.59 SF of common area and 417 SF of distribution space. The Project
is generally located at the northeast corner of the intersection Crane and Collier and more
specifically referred to as 571 Crane Street Unit H (APN:377-410-032) and 570 Central Avenue
Unit G (APN:377-410-024); and,
Whereas, Section 6.0 of the Western Riverside County Multiple Species Habitat
Conservation Plan (MSHCP) requires that all discretionary projects within a MSHCP Criteria Cell
undergo the Lake Elsinore Acquisition Process (LEAP) and Joint Project Review (JPR) to analyze
the scope of the proposed development and establish a building envelope that is consistent with
the MSHCP criteria; and,
Whereas, Section 6.0 of the MSHCP further requires that the City adopt consistency
findings demonstrating that the proposed discretionary entitlement complies with the MSHCP
Criteria Cell, and the MSHCP goals and objectives; and,
Whereas, pursuant to Chapter 19.12 (Development Agreements) of the Lake Elsinore
Municipal Code (LEMC) the Planning Commission (Commission) has been delegated with the
responsibility of reviewing and making a recommendation to the City Council (Council) whether
the development agreement is consistent with the City’s General Plan and whether to approve
the development agreement; and,
Whereas, on September 7, 2021, at a duly noticed Public Hearing, the Commission has
considered evidence presented by the Community Development Department and other interested
parties with respect to this item and took action to recommend approval of the project to the
Council; and,
Whereas, pursuant to Chapter 19.12 (Development Agreements), the Council has the
responsibility of making decisions to approve, conditionally approve, or disapprove
recommendations of the Commission for Development Agreements; and,
Whereas, on September 28, 2021, at a duly noticed Public Hearing, the Council has
considered the recommendation of the Commission as well as evidence presented by the
Community Development Department and other interested parties with respect to this item.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF LAKE ELSINORE DOES
ORDAIN AS FOLLOWS:
Ord. No. 2021-1461
Page 2 of 4
Section 1: That in accordance with the MSHCP, the Council makes the following findings
for MSHCP consistency:
1. The Project is not subject to the City’s LEAP and the Western Riverside County Regional
Conservation Authority’s (RCA) JPR processes as it is not located within a Criteria Cell.
2. The Project is consistent with the Riparian/Riverine Areas, Vernal Pools Guidelines, and
the Fuel Management Guidelines as the Project is wholly located within existing buildings
and does not include any earth disturbing activities therefore Sections 6.1.2 or 6.3.1 of the
MSHCP are not applicable.
3. The Project is consistent with the Protection of Narrow Endemic Plant Species Guidelines
and the Additional Survey Needs and Procedures because the project is not located within
any Narrow Endemic Plant Species Survey Areas or Critical Species Survey Areas.
4. The Project is consistent with the Fuels Management Guidelines because the Project site
is not within or adjacent to any MSHCP Criteria Cell or conservation areas.
5. The Project has been conditioned to pay any applicable MSHCP Local Development
Mitigation fees.
Section 2: The Council hereby finds and determines that the Project is categorically
exempt from California Environmental Quality Act (Cal. Publ. Res. Code §§21000 et seq. “CEQA”)
and CEQA Guidelines (14. Cal. Code Regs. §§15000 et seq.), specifically pursuant to Section
15301 (Class 1 – Existing Facilities), because the Project proposes to establish a Cannabis
Facility within an existing building. The site is fully developed, and only minor interior alterations
are planned in association with the proposed use.
Section 3: That in accordance with California Planning and Zoning Law and the Section
19.12.070 of the LEMC, the Council makes the following findings regarding modifications to
Development Agreement No. 2020-01:
1. It is consistent with the objectives, policies, general land uses and programs specified in
the General Plan and any applicable specific plan.
The proposed modifications to the Development Agreement will help to offset the potential
costs incurred by the City associated with the establishment of a Cannabis related facility
within an industrial district. The Project site’s General Plan Land Use designation is
Limited Industrial (LI). The proposed Project is consistent the LI land use designation and
with the objectives, policies, general land uses and programs specified in the General
Plan.
2. It is compatible with the uses authorized in, and the regulations prescribed for, the land
use district in which the real property is located.
The proposed modifications to the Development Agreement will facilitate the
establishment of the Cannabis related facility within an existing building. The Project is
located in the Limited Industrial (LI) General Plan Land use designation and the Limited
Manufacturing (M-1) Zoning designation, which is consistent with the applicable General
Plan Land Use Designation. The proposed use is a permitted use subject to the approval
of a Conditional Use Permit within the M-1 Zoning designation.
Ord. No. 2021-1461
Page 3 of 4
3. It is in conformity with public convenience, general welfare and good land use practices.
The proposed Cannabis facility which will be facilitated through the proposed modifications
to the Development Agreement were found to be a high value development which will
have beneficial impacts to the surrounding community. Furthermore, the Project has been
reviewed and conditioned by all applicable City departments to reduce the potential for
any adverse effects.
4. It will not be detrimental to the health, safety and general welfare.
The proposed modifications to the Development Agreement will facilitate the
establishment of a Cannabis related facility within an existing building. The proposed
Project has been reviewed and conditioned by all applicable City departments to reduce
the potential for any adverse effects to the health, safety and general welfare.
5. It will not adversely affect the orderly development of property or the preservation of
property values;
The proposed modifications to the Development Agreement will facilitate the expansion of
a Cannabis facility within existing buildings. The proposed use has been analyzed and
staff has determined that the proposed use meets all applicable sections of the LEMC and
will complement the existing uses. The Project was found not to adversely affect the
orderly development of property or the preservation of property values.
6. It is consistent with the provisions of Government Code Sections 65864 through 65869.5.
The proposed modifications to the Development Agreement includes all mandatory
provisions required by Government Code § 65865.2 and does not include any provisions
that are not authorized by the Development Agreement Act.
Section 4: Based upon the evidence presented, both written and testimonial, and the
above findings, the Council finds that the Project is consistent with the MSHCP.
Section 5: Based upon the evidence presented, the above findings, and the Conditions
of Approval imposed upon the Project, the Council hereby approves the first amendment to
Development Agreement No. 2020-01.
Section 6: Severability. If any provision of this Ordinance or its application is held
invalid by a court of competent jurisdiction, such invalidity shall not affect other provisions,
sections, or applications of the Ordinance which can be given effect without the invalid provision
or application, and to this end each phrase, section, sentence, or word is declared to be severable.
Section 7: Effective Date. This Ordinance shall become effective at 12:01 a.m. on
the thirty-first (31st) day after the date of adoption.
Section 8: Certification. The City Clerk shall certify to the passage of this Ordinance
and shall cause a synopsis of the same to be published according to law.
Ord. No. 2021-1461
Page 4 of 4
PASSED, APPROVED, AND ADOPTED at a regular meeting of the City Council of the
City of Lake Elsinore, California, on this 12th day of October 2021.
Robert E. Magee
Mayor
Attest:
Candice Alvarez, MMC
City Clerk
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss.
CITY OF LAKE ELSINORE )
I, Candice Alvarez, MMC, City Clerk of the City of Lake Elsinore, California, do hereby certify that
Ordinance No. 2021-1461 was introduced by the City Council of the City of Lake Elsinore,
California, at the Regular meeting of September 28, 2021 and adopted at the Regular meeting of
October 12, 2021 and that the same was adopted by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
Candice Alvarez, MMC
City Clerk
RECORDING R1`QUI STFD BY
AND WHEN RECORDED MAIL, TO:
City of Lake Elsinore
130 South Main Street
Lake Elsinore, CA 92530
Attn: City Clerl<
I )n clopmcnt Agmt - Kind 032720 (1 1 Word
DOC # 2020-0269458
06/23/2020 01:21 PM Fees: $0.00
Page 1 of 28
Recorded in Official Records
County of Riverside
Peter Aldana
Assessor -County Clerk -Recorder
This document was electronically submitted
to the County of Riverside for recording"
Receipted by: ALYCIA #778
Space Above. Line For Recorder's Use Only)
Exempt from Recording Fees Per Gov. Code § 27383)
DI:VL-:L,OPIyIIN"I AGIZEI MI_;N"h
BY ANIS 131_:"I'\VFI'N TIIE
CITY OF 1_AKE ELSINORE
AND
KIND GROUP V NTURLS LLC
DOC #2020-0269458 Page 2 of 28
RF( ORDIN(i RI:Q[JJ S'FFD BY
AND `VITEN RLICORDED MAIL TO:
City of Lake Elsinore
130 South Main Street
I akc Elsinore, CA 92530
Attn: City Clerk
Space Above Linc For Recorder's Use Only)
Exempt from Recording Fees Pe.r Gov. Code § 27383)
DI:VI:LOPMI_.N'1 AGRI:EIvII NT
BYANDI31"1NT]IE
C"ITY OF ELSINORE
AND
KIND GROUP VENTURES LLC
Uc%cIolmtcnt Agmt - Kind 03 `,i'O (I oId
DOC #2020-0269458 Page 3 of 28
DEVEL OPNJENT AGREEMENT
13Y AND BETWEEN THE CITY OF LAKE ELSINORE
AND KIND GIZOI_`f' V1,W1 i RES LLC
This Development Agreement ("Agreement"), dated for identification only as of April 1
1, 2020, is made by and between the City of Lake tdsinore, a California municipal corporation
City"), and Kind Group Ventures I.I.C. a California limited liability company ("Developer").
This Agreement shall take effect on the "Effective Date," as this term is hereafter defined. City
and Developer may each be referred to herein individually as a "Party" or collectively as the
Parties."
A. In 1996, the California Legislature approved Proposition 215, also known as the
Compassionate Use Act ("CUA"), \vhich was codified under Health and Safety Code section
11262.5 et sec., and was intended to enable persons in need of medical mariivana for specified
medical purposes, such as cancer, anorexia, AIDS, chronic pain, glaucoma and arthritis, to obtain
and use marijuana under limited circumstances and where recommended by a physician. The
CUA provides that "nothing in this section shall be construed or supersede legislation prohibiting
persons from engaging in conduct that endangers others, or to condone the diversion of
marijuana for non-medical purposes."
B. In 2004, the California Legislature enacted the Medical Marijuana Program Act
Health & Safety. Code, 5 11362.7 et seq-) ("MMP"), which clarified the scope of the CUA,
created a state-appro\ cd voluntary medical mariivana identification card program, and
authorized CitieS to rdopt and e111i01-ec rules and rr(1ulations consistent with the. MMP. Assembly
13111 2650 (2010) and :Assembly Bill 1300 (201 1) arcaded the 1\-1MP to expressly recognize the
authority of counties and cities to '`[aJdopt local ordinances that regulate the location, operation,
or establishment of a medical marijuana cooperative or collective" and to civilly and criminally
enforce such ordinances.
C. In September 2015, the California State Legislature enacted, and Governor Brown
signed into law three bills — Assembly Bill 243, Assembly Bill 266, and Senate Bill 643 -- which
together comprise the Medical Marijuana Regulation and Safety Act (the "MMRSA"). The
MMRSA created a comprehensive dual state licensing system for the cultivation, manufacture,
retail, sale, transport, distribution, delivery, and testing of medical cannabis.
D. The MMRSA was renamed the. Medical Cannabis Regulation and Safety Act (the
MCRSA"), under Senate 13111 837 in .lune 2016, which also made included substantive changes
to the applicable state laws, which affect the \ arious state agencies involved in regulating
cannabis businesses as well as potential llcerlsei's.
1". On November 8, 2016, the Control, Regulate, and Tax Adult Use of Marijuana
Act ('AVMA") was approved California voters as Proposition 64 and became effective on
November 9, 2016; pursuant to the CalifornN:I Constitution ((-.'al. Const., art. 1I, § 10(a).).
Proposition 64 legalized the nonmedical use of cannabis by persons 21 years of age and over,
and the personal cultivation of up to six (6) cannabis plants.
DOC #2020-0269458 Page 4 of 28
F. AUMA also created a state regulatory and licensing system governing the
commercial cultivation, testing, and distribution of nonmedical cannabis, and the manufacturing
of nonmedical cannabis products.
G=. On .lune 27. 2Ul Governor Brown signed the 1.coislature-approved Senate Bill
94. Senate Bill 9,l combined clen7cnts of the \ICRSA and A1111 y to establish a streamlined
singular regulatory and licensing structure l()r both medical and nonmedical cannabis activities.
file new consolidated provisions under Senate 13111 94 is now known as the Medicinal and Adult -
Use Cannabis Regulation and Safety Act ("MAUCRSA") to be governed by the California
Bureau of Cannabis Control. MAUCRSA refers to medical cannabis as "medicinal cannabis"
and nonmedical/recreational cannabis as "adult -[Ise cannabis."
11. On September 16, 2017, Governor Brown signed Assembly Bill 133 into law,
which provided cleanup and substantive changes to MAUCRSA, including the removal of the
requirement that licensed premises remain "separate and distinct" for each license type.
L MAUCRSA grants local jurisdictions discretion over whether businesses engaged
in commercial cannabis activity may operate in a particular jurisdiction and, if authorized, where
V!]thin SUCK j urlsdict1011.
J. On November 28, 2017.. the City Council approved Ordinance No. 1382
amending the Lake FlsinorC Municipal Code ("I.FMC") Chapter 17.156 to: (i) require all
Cannabis businesses in the City to have a State license and a City cannabis business permit; (ii)
establish procedures for the review and issuance of a cannabis business permit; (iii) to allow
cannabis dispensaries, cannabis distribution, indoor cannabis cultivation, cannabis manufacturing
and cannabis testing laboratories in M-1 (limited manufacturing) and M-2 (general
In all u1acturing) zoning districts; and (Iv) establish regulations related to such activities.
K. Ordinance No. 1382 allows persons to engage in a permissible "Cannabis
Business" upon the City's issuance of a "Cannabis Business Permit," which requires City
approval of a conditional use permit, development agreement, and other applicable approvals.
L. Developer has an equitable interest in that certain real property located at 571
Crane Street, Suite 11 in the. City of l.akc l"Isinore, County of Riverside. State. of California,
Assessor's Parcel Number 377-4 M-03'. which IS vv ithin a manufacturing zoning district (the
M. "hhe Site IS more particularly described in the legal description attached hereto as
Exhibit A, and the combined Site Plan and Floor Plan is attached hereto as Exhibit B.
N. Developer affirms that it has an equitable interest in the Site, evidenced in whiting
with the owner of the Site, Steven D. McNeil and Karin M. McNeil, Co -Trustees of the McNeil
Family Trust dated September 8, 1999 (the "Property Owner"). for the purpose of carrying out
the Projcet.
DOC #2020-0269458 Page 5 of 28
O. "T`he Property Owner (Developer's managing member) has provided notarized
written consent to the terms of this Agreement ind rhe recordation thereof, attached hereto as
Exhibit C.
P. Developer proposes to improve, develop, and use the Site for a Cannabis Business
as defined below), in accordance with California Cannabis Laws (as defined below) and the
LEMC, as each may be amended from time to time (the "Project").
Q. To strengthen the public planning process, encourage private participation in
comprehensive planning and reduce the economic risk of development, the California
Legislature adopted Government Code section 65864 et seq. (the "Development Agreement
Statute."), which authorizes the City and an individual with an interest in real property to enter
into a development agreement that establishes certain development rights in real property that is
subject to a development agreement application.
R. Consistent with the regLlirrements of the Development Agreement Statute, the City
adopted I..IMC. Chapter 19.12 ("Development :Agreement Ordinance") authorizing the use of
and establishing the procedures and requirements for the consideration of development
agreements within the City.
S. LEMC, Section 19.12.010 requires submittal of an application along with
information and supporting data as requested by the Director of Community Development for
consideration of any development agreement. Developer has satisf=ied this requirement.
T. On _-A tV_t 2020. the. City of L_al<e Elsinore Planning Commission held
a duly noticed public hearing to consider the Developer's application for this Agreement and
recommended to the City Council approval of this Agreement.
U. On g r I V2020. the City Council held a duly noticed public hearing
to consider this Agreement and bound and determined that this Agreement: (a) is consistent with
the objectives, policies, general land uses and progi-ams specified in the City's General Plan and
any applicable specific plan.. (b) is compatible with the uses authorized in, and the regulations
prescribed for the Site and the surrounding area and will not adversely affect the orderly
development of the Site or the preservation of property values; (c) is in conformity with public
convenience, general welfare and good land use practices; (d) will have an overall positive effect
on the health, safety and welfare of the residents of and visitors to the City; and (c) constitutes a
lawful, present exercise of the City's police power and authority under the Development
Agreement Statute and Development Agreement Ordinance.
V. Based on the findings set forth in Section I. I. the City Council entered into this
Agreement pursuant to and in compliance with the requirements of the Development Agreement
Statute and the Development Agreement Ordinance; and did therefore, in approving this
Agreement introduce for first reading Ordinance No. /U", the "Enabling Ordinance").
On2020, the City Council conducted the second reading of the Enabling
Ordinance thereby approving this Agrcemcnt, to become effective thirty, (30) days after the
adoption thereof.
3-
DOC #2020-0269458 Page 6 of 28
NOW, THEREFORE, in consideration of the mutual terms, obligations, promises,
covenants and conditions contained herein and for other valuable consideration, the sufficiency
of which is hereby acknowledged, the Parties., and each of them, agree as follows:
AGREEA'1ENT
ARTIC I,h: 1.
GF1,;R;ti: PROVISIONS
1.1. Findings. City hereby Finds and determines that entering into this Agreement
furthers the public health, safety, and general welfare and is consistent with the City's General
Plan.
1.2. 12ecitals. The Recitals above are true and correct and are hereby incorporated into
and made a part of this Agreement. ]n the event of any inconsistency between the Recitals and
the provisions of Articles 1 through 9 of this Agreement, the provisions of Articles 1 through 9
shall prevail.
1.3. Exhibits. The following "Exhibits" are attached to and incorporated into this
Agreement:
1:xhtblt A Lcgal Descrlpt1011
Exhibit I3 Site Plan and Floor Plan
Exhibit C Property Chvner Consent
1.4. Definitions. All following initially -capitalized words, terms, and phrases have the
meanings assigned to them below, unless the context indicates otherwise.
Additional Cite Approvals" means all ministerial and discretionary permits,
licenses. or other similar entitlements that must be secured by the Developer in order to develop
the Project on the Site, in addition to the Conditional Use Permit and the Cannabis Business
Permit.
hereto.
AMMitioiral Iiisui°eds" has the meaning set forth in Section 5.1.
Agreement" means this Development Agreement and all Exhibits attached
has the mcanim.t as sct firth in the Recitals, above.
California Building Stan(lartls Codes" means the California Building Code, as
amended from time to time, in Part 2, Volumes 1 and 2, as part of Title 24 of the California Code
of Regulations, as may be adopted by the LEMC.
4-
DOC #2020-0269458 Page 7 of 28
C'alifornia Cannabis Lents" McIticics yl `NIA, yIAUCRSA, CUA, the MMP,
and the regulations adopted and by the State Licensing Authorities pursuant to such
lath s, as such 1a\VS and rclytllatlolls may be 'u»ended from time to time.
Cannabis" means all parts of the plant Cannabis sativa Linnaeus, Cannabis
indica, or Cannabis ruderalis, whether growing or not; the seeds thereof, the resin, whether crude
or purified, extracted from any part of the plant; and every compound, manufacture, salt,
derivative, mixture, or preparation of the plant, its seeds, or resin. "Cannabis" also means the
separated resin, whether crude or purified. obtained from cannabis. "Cannabis" does not include
the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of
the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the
mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of
the plant which is incapable of germination. Por the purpose of this division, "cannabis" does not
mean "industrial hemp" as defined by Section 1 1018.5 of the Health and Safety Code. Cannabis
and the term "marijuana" may be used interchangeably.
Cannabis Business" includes cultivation, possession, n1anufacture> Processing,
storing, laboratory testing, labeling, transporting, distribution, delivery, or sale of cannabis or a
cannabis product that requires a state license pursuant to MAUCRSA.
Cannabis Business Permit" means the City permit established and authorized
by LEMC, Section 17.156.040, authorizing permissible Cannabis Business activity which can
only be issued upon City approval of a conditional use permit, development agreement, and
Additional City Approvals for each proposed Cannabis Business activity project.
City" means the City of Lake Elsinore, a municipal corporation.
City Council" means the City of Lake Elsinore City Council as described in
LEMC, Chapter 2.08.
Cit, Manager" means the City Manager of the City of Lake Elsinore, or
designee, as described in LEMC, Chapter 2.04.
Community Benefits" has the meaning set forth in Section 4.1 of this
Agreement.
Community Benefits Fees" has the meaning set forth in Section 4.2 of this
Agreement.
Concli-tional Use Permit" means a conditional use permit issued by the City to
Developer pertaining to Developer's development of the Project, pursuant to LEMC, Chapter
17.168. In the event that the Conditional Use Permit may not have been issued to the Developer
as of the Effective Date, the City hereby reserves its discretion under the police power to
approve, conditionally approve, or deny the issuance of the Conditional Use Permit.
CUA" has the mcanin'i as set forth in the. Recitals, above.
5-
DOC #2020-0269458 Page 8 of 28
Developer" means Kind Group Ventures LLC, a California limited liability
company.
Develoi)meut Agreement Ordinance" has the meaning as set forth in the
Recitals. above.
Develoj)tnent Agreement Statute" has the meaning as set forth in the Recitals,
above.
Development Regtclations" means the following regulations as they are in effect
as of the Effective I:)atc and to the extent they govern or regulate the development of the Site, but
excluding any anlendnlcnt or modification to the Development Regulations adopted, approved,
or imposed anter the Effective Date that impairs or restricts Developer's rights set forth in this
Agreement, unless such amendment or modification is expressly authorized by this Agreement
or is agreed to by Developer in writing: the City's General Plan, any existing Specific Plan that
include the Site, and, to the extent not expressly superseded by this Agreement, all other land use
and subdivision regulations governing the permitted uses, density and intensity of use for
obtaining required City permits and approvals for development, and similar matters that may
apply to development of the Project on the Site during the Term of this Agreement that are set
forth in Title 16 of the LEMC (Subdivisions), Title 17 of the LEMC (Zoning), and Title 19 of the
LEMC (Development). Notwithstanding the foregoing, the term "Development Regulations," as
used herein, does not include any City ordinance, resolution, code, rule, regulation or official
policy governing any of the following: (f) the conduct of businesses, professions, and
occupations; (ll) taxes and assessments. (111) the control and abatement of nuisances, (iv) the
granting of, encroachment permits and the conveyance of rights and interests which provide for
the use of or the entry upon public property: (v) the exercise of the powcr of eminent domain; or
vI) the Cahforma 13tuldLllg Stand irds Codes.
Effective Date" has the meaning as set forth in Section 1.6.
Exhibits" has the meaning set forth in Section 1.3.
Floor Area" means rentable interior floor area at the Site; rentable square
footage measured based oil I3ullding 0wricrs and Mau wcrs Association International IndLlstrial
building standards.
Marijuana" has the same meaning as cannabis and those terms may be used
interchangeably.
HA UCRSA"has the meaning as set forth in the Recitals, above..
11CRSA " has the meaning is set forth in the Recitals, above.
IMP" has the meaning is set forth in the. Recitals. above.
MMRSA"has the meaning as set forth in the Recitals, above.
Mortgage" has the meaning set forth in Article 6.
6-
DOC #2020-0269458 Page 9 of 28
Ilion -Payment Penalty" has the nncaning set forth in Section 4.3.
A'otice of';Von-Payment Penalty" has the meaning set forth in Section 4.3.
Project" has the nleaninsg as set tortll in the Recitals, above.
Property Owner" means the owner of record of the Site at the time this
Agreement is recorded in the official records of Riverside County. As of the identification date
of this Agreement, Collette Lnterprises, LLC, a California limited liability company, is the
owner of record, provided however, that the Site is currently subject to a contingent purchase
agreement in favor of Wildomar Valley Wood Products Inc., a California corporation, and the
Parties reasonably anticipate that Wildon -lar Valley Wood Products Inc., will be the owner of
record of the Site at the time this Agreement is recorded in the official records of Riverside
County.
Regulatory Pees" mean charges owed by the Developer- to the City for the
City's costs incurred in processing applications related to the Project, administering its cannabis -
related ordinance with regard to the Project, and monitoring legal compliance of the Project on
the Site, including, but not limited to building and safety-related inspections by the City.
Site" has the meaning as set forth in the Recitals, above.
State Cannabis Licett_ye" means a license. including a temporary license, to
conduct Cannabis BLrsiness activities issued by a State Licensing Authority to Developer for the
Development of the Project on the Site.
State Licensing Authority" means the state agency responsible for the
issuance, renewal, or reinstatement of State Cannabis Licenses, or the state agency
authorized to take disciplinary action against a business licensed under the California
Cannabis Laws.
Term "has the meaning described in Section 1.7.
Term Commencement Date" has the meaning described in Section 1.7.
1.5. Project is a Private Undertaking, Tlie Parties agree that the Project is a private
development and that City has no interest therein, cxccpt as authorized in the exercise of its
governmental functions. City shall not for any purpose be considered an agent of Developer or
the Project.
1.6. Effective Date of Agreement. This Agreement shall become effective (the
Effective Date") upon the date when all of the following conditions have been satisfied: (i) the
City ordinance approving this Agreement becomes effective; (ii) this Agreement has been fully
executed by the Parties; and (iii) the Developer have delivered evidence of insurance coverage in
favor of the City as set forth in Article > of this :agreement.
1.7. Term. The term of this Agreement (the "Term") shall be twenty (20) years
commencing from the issuance of the Cannabis Business License to Developer for the Project
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the "Term (-'ommcncenlent Date"). Nothing in this Section 1.7 shall prohibit or otherwise
restrict the tcrmination of this Agreement in accordance with Section 1.8.
1.8. Termination. This Agreement shall terminate upon the occurrence of any of the
following events:
a. the expiration of the Term;
b. the Developer no longer has a possessory, legal or other equitable interest
in the Site,
C . the Developer has ce lscd all operations reb ted to the Project on the Site
Ior a period of one year or more;
d. mutual written consent of the Parties,
C. abandonment of the Developer's Conditional Use Permit pursuant to
I_IMC:, Section 17.168.080 including the failure of the Developer to commence operation of the
Project on the Site within the time presented following the approval of the Conditional Use
Permit;
f. suspension or revocation of Developer's Conditional Use Permit pursuant
to LEMC, Section 17.168.110:
g. following the Term Commencement Date, the failure to have a valid
Cannabis Business Permit for the Project;
h. following the Term Commencement Date, the failure to have a valid
Developer's State Cannabis Permit for the Projcct; or
i. unauthorized assignment of interest of the Developer in the Project or in
the Site pursuant to Section 9.1 of this Agreement.
The rights and obtigations of the Parties set forth in Sections 4.2, 4.3, 4.4, 5.4. 9.2, 9.3,
9.4, and 9.6 of this Agreement and any right or obligation of the Parties in this Agreement, which
by its express terms or nature and context is intended to survive termination of this Agreement,
will survive any such termination.
1.9. Operating Memoranda; Amendment of Agreement.
a. Operating Memoranda. The provisions of this Agreement require a close
degree of cooperation between the City and the Developer. The Development of the Developer
Property may demonstrate that clarifications to this Agreement and the Existing Land Use
Regulations 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 Nvith respect to all matters, items and provisions covered in general
tinder this Agreement, except for those which relate to the (i) term; (ii) permitted uses; or
density or intensity of, use. Wheal and if the Developer finds it necessary or appropriate to make
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DOC #2020-0269458 Page 11 of 28
changes, a(J11stme11tS 01' clarifications to matters, Items or provisions not enumerated in (1)
through (iii) 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 1.9(a). 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 1.9(b) below.
b. Amendment. Subject to the notice and hearing requirements of the
Government Code, 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 Development Agreement Ordinance and the Development Agreement
Statute.
1.10. Fees. Developer agrees to pay all Regulatory Fees, Community Benefits Fee, and
any other applicable fees to the City related to Developer's development and operation of the
Project on the Site.
ARTICL E 2.
1) E VEI.OPNIEN"i Oh,I'IIF PROPERTY
2.1. Intent. Developer has expended and will continue to expend substantial amounts
of, time and money planning and preparing for development of the Projcet. Developer represents
and City acknowledges that Developer would not make these expenditures without this
Agreement, and that Developer is and will be making these expenditures in reasonable reliance
upon its vested rights to develop the Project as set forth in this Agreement.
2.2. Vested Right to Develop. During the Term, Developer shall have the vested
right to develop the Project on the Site, in accordance with the Agreement, the Conditional Use
Permit, Additional City Approvals if any, the Cannabis Business Permit, the City's Development
Regulations.
2.3. Permitted Uses and Operational Requirements. Developer shall be permitted
to develop, construct, and use the Site to carry out the Project, consistent with California
Cannabis Laws_ this A(_)reemcnt, the Conditional l_ise Permit, Additional City Approvals, the
Cannabis Business Permit, the I.FMC (as may be amended except for the Development
Regulations), and the State Cannabis License.
2.4. Additional Entitlements, Approvals, and Permits. Successful implementation
of the Project may require the Developer to obtain additional approvals and permits from City
and other local and state agencies. In connection with the consideration and issuance of any such
Additional City Approval which is not ministerial in nature, the City reserves its discretion under
the police power to approve, conditionally approve, or deny the issuance of each City Additional
Approval.
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2.5. Conditional Use Per -mit. Pursuant to LEMC, Chapter- 19.12, Developer shall not
engage in the permitted uses set forth above pertaining to the Project on the Site without first
obtaining the Conditional Circ Permit allowing for the operating of a "cannabis business" (as
defined in Section 17.1:16.030 of the 1,1 MC).
2.6. Cannabis Business Permit. Pursuant to LEMC, Section 17.156.040, no person
may engage in a "cannabis business" in the City without obtaining a Cannabis Business Permit.
2.7. State Cannabis License. Pursuant to California Cannabis Laws, Developer shall
not engagc in the permitted uses set forth above pertaining to the Project on the Site without first
obtaining a State Cannabis License necessary to conduct the type of Cannabis Business on the
Site as authorized by the Cannabis Business Permit.
ARTICLE 3.
APPLICABLE RULES, REGULATIONS, AND OFFICIAL POLICIES
3.1. Rules on Permitted uses. Unless otherwise provided in this Agreement, the
City's ordinances. rc.solutions, rules. regulations, and official policies governing the permitted
uses of the Site and the nnaximLIIII height, bulk. and sr/e of proposed buildings related to the
Project on the Site shall be those in force and effect at the time of the City's issuance of the
Cannabis Business Permit for the development of the Project at the Site.
3.2. Rules on Design and Construction. Unless otherwise provided in this
Agreement, the ordinances, resolutions, rules, regulations, and official policies governing the
design, improvement, and construction standards and specifications applicable to the Project
shall be those in force and effect at the time of the City's Issuance of the Cannabis Business
Permit for the development of the Project at the Site.
3.3. Uniform Codes Applicable. Unless otherwise provided in this Agreement, the
Project shall be improved and constructed in accordance with the provisions of the California
Building Standards Codes in effect at the time as of the time of the City's consideration of
approval of the relevant permit sought by Developer for the Project.
3.4. Changes by Federal or State Lawv. The Site and Project shall be
subject to subsequently enacted state or federal laws or regulations that may preernnpt the LEMC,
or mandate the adoption or amendment of local regulations, or are in conflict with this
Agreement or local rules or guidelines associated with City's Cannabis Uses (LEMC, Ch.
17.156) or Cannabis Business Permit. As provided in section 65869.5 of the Development
Agreement Statute, in the event state or federal laws or regulations enacted after the Effective
Date prevent or preclude compliance with one or more provisions of this Agreement, such
provisions shall be modified or suspended as may be necessary to comply with such state or
federal laws or regulations. Upon discovery of a subsequently enacted federal or state law
meeting the requirements of this Section, City or Developer shall provide the other Party with
written notice of the state or federal law or regulation, and a written statement of the conflicts
thereby raised with the provisions of the LEMC or this Agreement. Promptly thereafter, City and
Developer shall meet and confer in good faith in a reasonable attempt to modify this Agreennent,
as necessary, to comply with such federal or state law or regulation provided City shall not be
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DOC #2020-0269458 Page 13 of 28
obligated to agree to any modification materially Increasing its obligations or materially
adversely affecting its rights and benefits hereunder. In such discussions, City and Developer
will attempt to preserve the terms of this Agreement and the rights of Developer derived from
this Agreement to the maximum feasible extent while resolving the conflict. If City, in its
judgment, determines it necessary to modify this Agreement to address such conflict, City shall
have the right and responsibility to do so, and shall not have any liability to Developer for doing
so or be considered in breach or default of this Agreement. City also agrees to process, in
accordance with the provisions of this Agreement, Developer's proposed changes to the Project
that are necessary to comply with such federal or state law and that such proposed changes shall
be conclusively deemed to be consistent with this Agreement without further need for any
amendment to this Agreement,
3.5. Health and Safety Emergencies. In the event that any future public health and
safety emergencies arise with respect to the development contemplated by this Agreement, City
agrees that it shall attempt, if reasonably possible as determined by City in its discretion, to
address such emergency in a way that does not have a material adverse impact on the Project.
3.6. Reservation of Authority. Any other provision of this Agreement to the contrary
notwithstanding, the development of the Project shall be subject to new or modified ordinances,
resolutions, rules, regulations, and official policies related to the following:
a. Regulatory Fees imposed on the Developer by the City, which are charged
by the City to cover its actual and reasonable expenses incurred in processing permits, licenses,
and other entitlements related to the Project. administering its cannabis -related ordinance with
regard to the Project, and monitoring legal compliance of the Project on the Site, including, but
not limited to building and safety-related inspections by the City
b. Development impact fees or charges imposed by the City on and in
connection with a development or other similar fees or charges imposed by other governmental
entities regardless of whether the City is required to collect or assess such fees pursuant to
applicable laws (e.g., school district impact fees pursuant to Government Code Section 65995),
or general or special taxes and assessments.
C. Procedural regulations related to hearing bodies, petitions, applications,
notices, findings, records, hearings, reports, recommendations, appeals, and other similar
procedural matters; and
d. Regulations, including, but not limited to, the California Building
Standards Codes, necessary to protect the public health and safety so long as such regulations are
generally applicable and do not impose a severe and significant financial burden on the
Developer or materially delay the development or carrying out of the Project as contemplated in
this Agreement.
ARTICIA' 4.
COMMUNITY BENEFITS FEF:
4.1. Intent. The Parties acknowledge and agree that this Agreement confers
substantial private benefits on the Developer that will place significant burdens, including both
DOC #2020-0269458 Page 14 of 28
known costs and potential but currently unknown costs, on City infrastructure, services, and
neighborhoods and that the private benefits provided to the Developer should be balanced with
coimensr.n-ate public benefits for the comn1LI1101 ("Community Benefits"). Accordingly, City
and Developer recognize and agree that but for Developer's payments as provided herein. City
would not and could not approve use of the Site for the Project as provided by this Agreement.
City's approval of this Agreement is in reliance upon and in consideration of Developer's
agreement to slake the payments required hereunder.
4.2. Community Benefits Fee. In addition to Developer's obligation to pay the City
through its Regulatory Fees, Developer shall be obligated to provide Community Benefits as
follows, which shall be referred to as the "Community Benefits Fee":
a. Community Benefits Tee. Concurrent with the Term Commencement
Date, and on each anniversary thereafter, Developer shall make payment to the City pursuant to
the following fee schedule:
All Cannabis Business S 18.72 per square foot of Moor Area
activities annually
Notwithstanding the foregoing, Developer may elect, on a one-time basis, to make payment of
the Community Benefit Fee due on the Term Commencement Date in two equal installments, the
first one-half installment to be rade on the Teri Commencement Date and the second one-half'
installment to be due and payable on a date six (6) months from the Term Commencement Date.
b. Annual Increase. In order to account for the increasing cost of providing
City services, the Community Benefits Fee set forth in Section 4.2(a) shall be increased annually
commencing on each anniversary of the Term Commencement Date (each of which day shall be
referred to as an "Adjustment Date"). Each Adjustment Date shall be numbered in sequence
e.g., First Adjustment Date, Second Adjustment Date, Third Adjustment Date, etc.). Each such
annual increase in the Community Berretits Fee shall be determined as follows:
Four percent (4° o) of the amount of the Community Benefits Fee payable
immediately preceding such adjustment (For example and for illustration
purposes only, if Developer's Community Benefits Fee was $70,274.88
18.72 x 3,754 square feet of Floor Area] upon the initial issuance of a
Cannabis Business Permit on June 15. 2020, the Community Benefits Fee
due on the First Adjustment Date, that is. June 15, 2021, is the product of
70,274.88 times 1.04, in which case the Community Benefits Fee payable
on the First Adjustment Date would be $73,085.88).
4.3. Penalty. If Developer fails to make a payment of the Community Benefits Fee, as
required by this Agreement, the City may impose a "Non -Payment Penalty." A Non- Payment
Penalty of five percent (5°io) shall be applied to all past due Community Benefits Fees. The City
shall deliver to Developer a "Notice of Non -Payment Penalty." Payment of the Non- Payment
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DOC #2020-0269458 Page 15 of 28
Penalty and past due Community Benefits I-ees shall be in a single installment due on or before a
date fifteen (15) days following delivery of the Non -Payment Penalty.
4.4. Interest on Unpaid Non -Performance Penalty; Past Due Community Benefits
Fees. If Developer fails to pay the Non -Performance Penalty and all past due Community
13enclits Fees after Citv has delivered the Notice of Non -Performance Penalty, then, in addition
to the principal amount of the Non-performance Penalty and past due Community Benefit Fees,
Developer shall pay City interest at the rate of eighteen percent (18%) per annum, computed on
the principal amount of the Non -Performance Penalty and past due Community Benefit Fees,
from a date fifteen (15) days following delivery of the Notice of Non-performance Penalty.
Notwithstanding the foregoing provisions of this Section 4.4, in no event shall the rate of interest
payable by Developer exceed the maxirntrm rate of interest permitted to be charged under
applicable law.
ARTICLE 5.
INSURANCF AND INDEMNIFICATION
5.1. General Liability Insurance. Developer shall maintain comprehensive general
liability insurance issued by a California admitted insurance courier whose Best Insurance Guide,
current edition insurance rating is not less than "B+(vii)" with a per -occurrence combined single
limit Of not less than TWO million Dollars (52,000,000) with a claim deduction not more than One
Hundred Thousand Dollars (S100,000) per claim. Such insurance policy shall name the City and
City's elected and appointed councils, boards, commissions, legislative bodies, officials,
employees, and representatives as "Additional Insureds" by endorsement with respect to the
performance of this Agreement and shall include either a severability of interest clause or cross -
liability endorsement and other customary and reasonable endorsements and provisions approved
by the City's risk manager.
5.2. Workers' Compensation Insurance. Developer shall maintain workers'
C01111 ensation insurance for all its employees employed at or on the Project. Developer shall
require each contractor and subcontractor working at or on the Project to provide workers'
compensation insurance for its respective employees. Developer indemnification of City set forth
in Section 5.4 of this Agreement shall apply to Developer's failure to maintain any such
insurance.
5.3. Evidence of Insurance. Evidence of the insurance in favor of the City required
under Section 5.1 shall be provided to the City as of the EATective Date. Thereafter no Cannabis
Business Permit for the Project shall be valid unless and until Developer furnishes satisfactory
evidence of the other insurance required in Article 5 of this Agreement. In each case, the evidence
of insurance provided to the City shall include satisfactory evidence that the insurance carrier
shall give the City at least fifteen (15) days' prior notice of the cancellation or reduction in
coverage of each policy of insurance required in Article 5 of this Agreement,
5.4. Indemnification. 'file Developer agrees to indemnify, defend with counsel
acceptable to City, and hold harmless the City and City's elected and appointed councils, boards,
commissions, legislative bodies, officials, employees, and representatives from any and all claims,
costs (including legal fees and costs). or liabilities of any kind arising out of or connected to any
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DOC #2020-0269458 Page 16 of 28
act or omission of Developer or Developer's contractor, subcontractor, agent, or representative
related to its establishment or operation of the Project or arising out of or related to the approval
or issuance of any permit, license, or approval by the City for the Project, except to the extent
such claims, costs, and liabilities are caused by the sole negligence or Nvillful misconduct of the
City. The Developer agrees that it shall be responsible for all costs incurred by the City in the
event of a third -party challenge related to such claims, costs, or liabilities.
5.5. Failure. to Indemnify. The Developer's failure to indemnify the City, when
required by this Agreement, shall constitute a material breach of this Agreement and of any
applicable Conditional Use Permit, Cannabis Business Permit, and Additional City Approvals,
wl)iclr shall entitle the City to all rcntcdies available under law, including, but not limited to,
specific performance and damages. failure to indemnify shall constitute grounds upon which the
City may rescind its approval of any entitlement, permit, or license related to the Project, or any
portion thereof, and a waiver of Developer's right to file a claim, action, or proceeding against the
City and City's elected and appointed councils, boards, commissions, legislative bodies, officials,
employees, and representatives based upon the City's rescission or revocation of any applicable
Conditional Use Permit, Cannabis Business Permit, and Additional City Approvals, or City's
failure to defend any claim, action, or proceeding based upon Developer's failure to indemnify the
City.
5.6. Waiver of Damages; Referendum. Notwithstanding anything in this Agreement
to the contrary, the Parties acknowledge that City would not have entered into this Agreement had
it been exposed to liability for damages from the Developer and, therefore, the Developer hereby
waives all claims for damages against City for breach of this Agreement. The approvals
including development a(4recmcnts) must be approved by the City Council and that, under law.
the City Council's discretion to vote in any particular way may not be constrained by contract.
The Developer therefore waives all claims Ivor damages against City in the event that this
Agreement or any Project approval is: (1) not approved by the City Council or (2) is approved by
the City Council, but with new changes, amendments, conditions, or deletions to which Developer
is opposed. Developer further acknowledges that, as an instrument which must be approved by
ordinance, a development agreement is subject to referendum, and that, under- law, the City
C:ouncil's discretion to avoid a referendum by rescinding its approval of the underlying ordinance
may not be constrained by contract, and Developer waives all claims for damages against City in
this regard.
5.7. Bankruptcy. The obligations of this Agreement shall not be dischargeable in
bankruptcy.
ARTI CL F 6.
tIORTGAi;EE PROTECTION
This Agreement, once executed and recorded, shall be superior and senior to any lien
placed upon the Site or any portion thereof following recording of this Agreement, including the
lien of any deed of trust or mortgage ("Mortgage"). Notwithstanding the foregoing, no breach
hereof shall defeat, render invalid, diminish, or impair the lien of any Mortgage made in good
faith and for value. This Agreement shall immediately be deemed in default and immediately
terminate upon the foreclosure or transfer of any interest in the Site or Project, whether by
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DOC #2020-0269458 Page 17 of 28
operation of law or any other method of interest change or transfer, unless the City Manager has
authorized such change or transfer in advance. in writing.
ART1CLE 7.
PERIODIC REVIEW
City shall review this Agreement ('`Periodic Review") in accordance with the
Development Agreement Ordinance, including LLMC. Section 19.12.140 and the procedures set
forth in LEMC, Section 19.12.150. Notwithstanding the foregoing, the City's failure to review
the Developer's compliance with this Agreement, at least annually, will not constitute or be
asserted by either Party as a breach by the other Party.
ARTICLE 8.
DEFAULT
8.1. General Provisions. The failure of either Party to perform any obligation or duty
under this Agreement within the time required by this Agreement shall be a default and after the
giving of notice and the passage of the applicable amount Of time, such a default shall constitute
an event of default.
8.2. Notice. The "Complaining Party" may not assert that an event of default has
occurred against the "Defaulting Party" unless the Complaining Party has first given written
notice to the Defaulting Party, specifying the nature of the default and the manner in which the
default may be cured, if known to the Complaining Party. Any failure or delay by the
Complaining Party in giving such notice shall not waive such default or waive any of the
Complaining Party's remedies.
8.3. Cure. The Defaulting Party shall have thirty (30) days from the receipt of notice
to Cure the default except as provided in the next sentence. In the case of a monetary default
e.g. failure to rnnake the payments of lees regtllred Under this 01-dlnanCe), any Such default must
be cured by the payment of the amount demanded within such thirty (30) day period. In the case
of non -monetary defaults, if the default cannot be reasonably cured within such time, the default
shall be deemed cured if:
of notice,
a. The cine is commenced at the earliest practicable date following receipt
b. The cure is diligently prosecuted to completion;
C. At the earliest practicable date (but in no event later than thirty (30) days
after receiving the notice of default), the Defaulting Party provides written notice to the
Complaining Party that the cure cannot be reasonably completed within such thirty (30) day
period; and
d. The default is cured at the earliest practicable date, but in no event later
than sixty (60) days after receipt of the first notice of default.
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DOC #2020-0269458 Page 18 of 28
8.4. Remedies. If the Defaulting Party fails to cure a default in accordance with the
foregoing, an event of default shall be deemed to have occurred and the Complaining Party shall
have the right to seek all appropriate remedies, at law or in equity, including specific penalty or
termination of this Agreement without further or separate notice to the Defaulting Party.
8.5. Estoppel Certificates.
a. City shall, upon not less than thirty (30) days prior written notice,
execute, acknowledge, and deliver to Developer. Developer's lender, potential investors, or
assignees an estoppel Certificate In wrlting w'hlcll certifies that this Agrcemel7t Is In full force
and effect, Mat there are no breaches or delanits UidCr the Agreement except as described In
such estoppel certificate, and that the Agreement has not been modified or terminated and is
enforceable in accordance with its terms and conditions.
b. The City may recover its actual and reasonable costs and attorneys' fees
in connection with the timely dealing of ally such estoppel certificate, in an amount not to
exceed S2,500 per estoppel certificate.
ARTICLE 9.
OTHER GENERAL PROVISIONS
9.1. Assignment. 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 there under to any person or persons,
partnership or corporation who purchases all or a portion of Developer's right, title and interest
111 the Site, Ur PrOleCt, prOvlded SUCK assignee or grantee assumes In writing each and every
obligation of Developer hereunder yet to be performed, and further provided that Developer
obtains the written consent of City to the assignment, which consent shall not be unreasonably
withheld. Notwithstanding the foregoing provision concerning the written consent of City, and
provided that the assignment is to an affiliate of Developer (an entity which is controlled by,
controls, or is under common control with, Developer), the City shall in such cases provide its
written consent provided that all other requirements of this Section 9.1 are satisfied. The notice
to City shall include the identity of any such assignee 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. The City Manager may act on behalf of City regarding any actions concerning the
assignment of this Agreement.
9.2. Notices. Any notice shall be in writing and given by delivering the same in person
or by sending the same by registered, or certified trail, return receipt requested, with postage
prepaid, or by overnight delivery, to the respective- mailing addresses, as follows:
ilio City: City of 1_.ake Elsinore
130 S. Main Street
Lal<c Idsinorc, CA 92530
Attn: City Manager
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DOC #2020-0269458 Page 19 of 28
If to Developer: Kind Group Ventures LLC
29651 Sloop Drive
Canyon Lake, CA 92587
Altn: Mr. Jarrett 1 kale
Either City or Developer may change its mailing address at any time by giving written
notice of such change to the other in the manner provided herein at least ten (10) days prior to
the date such change is effected. All notices under this Agreement shall be deemed given,
received, made or communicated on the earlier of the date personal delivery is effected or on the
delivery date or attempted delivery date shown on the return receipt, or air bill.
9.3. Governing Law and Venue. This Agreement shall be interpreted and governed
according to the laws of the State of California. hri the event of litigation between the Parties,
venue, without exception, shall be in the Riverside County Superior Court of the State of
California. If, and only if, applicable law requires that all or part of any such litigation be tried
exclusively in federal court, venue, without exception, shall be in the Central District of
California located in the City of Riverside, California.
9.4. Severability. 11' this 1 Jrecmcnt in its entirety is determined by a court to be
invalid or unenforceable, this Agreement shall automatically terminate as of the date of final
entry of judgment. if any term or provision of this Agreement shall be determined by a court to
be invalid and unenforceable, or if any term or provision of this Agreement is rendered invalid or
unenforceable according to the terms of any federal or state statute, any provisions that are not
invalid or unenforceable shall continue in full force and effect and shall be construed to give
effect to the intent of this Agreement. The Parties expressly agree that each Party is strictly
prohibited from failing to perform any and all obligations under this Agreement on the basis that
this Agreement is invalid, unenforceable. or illegal. By entering into this Agreement, each Party
disclaims any right to tender an affirmative defense in any arbitration or court of competent
jurisdiction, that performance under this Agreement is not required because the Agreement is
invalid, unenforceable, or illegal.
9.5. Constructive Notice and Acceptance. Every person who after the Effective Date
and recording of this .A(-,rcement o\vns or ac(p.lires .my right, title, or interest to any portion of the
Site is and shall be conclusively deemed to have consented and agreed to every provision
contained herein, whether or not any reference to this Agreement is contained in the instrument
by which such person acquired an interest in the Site, and all rights and interests of such person
in the Site shall be subject to the terms, requirements, and provisions of this Agreement.
9.6. Reserved.
9.7. Waiver. A waiver by any Party of any breach of any term, covenant, or condition
herein contained or a waiver of any right or remedy of such Party available hereunder, at law Or-
in equity, shall not be deemed to be a waiver of any subsequent breach of the same or any other
term, covenant, or condition herein contained or of any continued or subsequent right to the same
right or remedy. No Party shall be deemed to have made any such waiver unless it is in writing
and signed by the Party so waiving.
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DOC #2020-0269458 Page 20 of 28
9.8. integration. This Agreement, together with its specific references, attachments,
and Exhibits, constitutes all of the agreements, understandings, representations, conditions,
warranties, and covenants made by and betwcen the Parties hereto. Unless set forth herein, no
Party to this Agreement shall be liable for any representations made, express or implied.
9.9. Captions. The captions of this Agreement are for convenience and reference only
and the words contained therein shall in no way be held to explain. modify, amplify, or aid in the
interpretation, construction, or meaning of the provisions of this Agreement.
9.10. 1N2andatory and Permissive. "Shall" and "will" and "agrees" are mandatory.
May" or "can" are permissive.
9.11. Counterparts. This Agreement may be executed Simultaneously and in several
counterparts, each of which shall be decmcd an original. but which together shall constitute one
and the same instrument.
9.12. Other Documents. The Parties agree that they shall cooperate in good faith to
accomplish the objectives of this Agreement and, to that end, agree to execute and deliver such
other instruments or documents as may be necessary and convenient to fulfill the purposes and
intentions of this Agreement.
9.13. Authority. All Parties to this Agreement warrant and represent that they have the
power and authority to enter into this Agreement.
9.14. Advice of Legal Counsel. Each Party acknowledges that it has reviewed this
Agreement with its own legal counsel and, based upon the advice of that counsel, freely entered
into this Agreement.
9.15. Attorneys' Fees and Costs. Unless otherwise provided in this Agreement, if any
action at law or in equity, including action hr declaratory relief, is brought to enforce or interpret
provisions of this Agreement, the prevailing Party shall be entitled to reasonable attorney's fees
and costs, which may be set by the court in the same action or in a separate action brought for
that purpose, in addition to any other relief to which such Party may be entitled.
9.16. Calculation of Time Period. All time referenced in this Agreement shall be
calendar days, unless the last day falls on a legal holiday, Saturday, or Sunday, in which case the
last day shall be the next business day.
9.17. Recordation of Development Agreement. The City Clerk shall cause a copy of
this Agreement to be recorded against title of the Site within ten (10) business days of the
Effective Date.
s/c; v r l c, i, "S o ,VL'.\Y P,4GE/
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DOC #2020-0269458 Page 21 of 28
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates set
forth below.
Date: U) -L -Lo
ATTEST:
City Clerk
Date: --
CITY OF L.AKI >- LSINORE,
a municipal corporatloll
13y:
Mayor
DI;VI`,I.OPLR"
KIND GROUT Vl NTURLS LLC,
a California limited liability company
By:
19-
ale, Manager
DOC #2020-0269458 Page 22 of 28
A notary, Public or other officer completing this
certrticate 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.
STATF OF CAI_,IFORNIA )
County of kw-u5tdc--- )
011 to _, be I -e 111 e, % ` /. ,a
Notary 1 ubhc, personally appeared___ 3'rt 4C who proved to me on
the basis of satisfactory evidence to be the person(,K) whose name()G/are subscribed to the
within instrument and acknowledged to Me that Q'shc'they executed the same inhcr/their
authorized capacity( . and that byhi; her11heir signature(] on the instru111ent the Person(, 01-
the rtheentityuponbehalfofwhichthePerson( acted. executed the instrument.
I certify under I'ENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct
WI`hNESS my hand and official seal.
a
Signature of Notary
S. M. WILLCUT
U COMM. # 231OS4S
r NOTARY PUBLIC • CALIFORNIAO
RIVERSIDE COUNTY t7
F PN COMM. EXPIRES OCT. 25,2023,'
Affix seal here)
DOC #2020-0269458 Page 23 of 28
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 111c, ___—_—_-- a
Notary Public, personally appeared _ who proved to nye 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.
1 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 oi'Notary
Affix seal here)
DOC #2020-0269458 Page 24 of 28
A notary public or other officer completing this
certificate verifies only the identity of the Hiclividual
who si<ned the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
STATL 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 helshelthcy executed the same in his/her/their
authorized capacity(ies), and that by hislher,%their signature(s) on the instrument the person(s), 01-
the rtheentityuponbehalfofwhichtheperson(s) acted, executed the instrument.
1 certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paJ-agraph is true and correct
ITNI SS my hand and official seal.
Signature of Notary
Affix seal here)
DOC #2020-0269458 Page 25 of 28
EXHIBIT A
LEG,AI, DESCRIPTION
The real property referred to herein is situated in the County of Riverside, City of Lake Elsinore,
State of California, and is described as follows:
PARCEL A:
PARCI?I_, 3? 01: PARCH. MAI' NO, 24751 AS S110\1'N 131' PARCEL. MAP IN THE
C'OUN'1_Y OF RIVI RSIDI STATI-' OF C'Al_.II OIZNIA. AS PER MAP RL;(-'.ORDF,D IN BOOK
164, PAGE(S) 64 T'IIROUGII 66, INCLUSIVI' OF MAPS, IN TI 1E OFFICIAL.. RECORDS OF
RIVERSIDE COUNTY,
1) A R CF L. 13:
A NON-EXCLUSIVE EASFMI NT FOR INGRESS AND I'GRESS AS SI:T FORTH AND
DESCRIBED IN DECLARATION OF COVENANTS, CONDI'T`IONS AND RESTRICTIONS
RECORDED MAY 31, 1990 AS INSTRUMENT NO. 199805, OF OFFICIAL RECORDS Oh
RIVERSIDE COUNTY, CALIFORNIA.
EXCEPTING FROM "PARCEL "A" THE NON-EXCLUSIVE EASEMENTS FOR INGRESS
AND EGRESS SET FORTH IN DECLARATION OF COVENANTS, CONDITIONS AND
RESTRICTIONS RECORDED MAY 31, 1990 AS INSTRUMENT NO. 199805, OF OFFICIAL
RECORDS OF RIVERSIDt COUNTY. ('AI:IFORNIA.
APN 377-410-032
Exhibit A
DOC #2020-0269458 Page 26 of 28
EXHIBIT B
SITE. PLAN AND FLOOR PLAN
The Site: Plan and Floor Plan is on file as a public record asci available for review at the City of
Lake F'Isinore's City Clerk's Office located i 30 South Main Street Lake Elsinore, CA. 92530.
Exhibit 13
DOC #2020-0269458 Page 27 of 28
Wildomar Valley Wood Products Inc., a California corporation, being the owner of the real
property described in Exhibit A to this Development Agreement by and between the City of
Lake Elsinore and Kind Group Ventures LLC, dated for identification as of April 1, 2020 (the
Agreement"), do hereby consent to the recordation of said Agreement in the Official Records of
the County of Riverside.
WILDOMAR VALLEY WOOD PRODUCTS
INC., a California corporation,
Date:
Robert V. Erdtsieck, CEO
notary required]
Exhibit C
DOC #2020-0269458 Page 28 of 28
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 )
1 )§
County of 3 ai i
On l , i`x before ine, ,..t C,.. a
Notary Public, personally appeared alb -
3 ` (
c, 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/sthey executed the same in his/hrn4heir
authorized capacity(, and that by his/l their signature('ston the instrument the person(; or
the entity upon behalf of which the persons) 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
WETNESS my hand and official seal.
Signature o Notary 11
55RA4.yp DOUGLAS DESJARDINS
3 . 21
NOTARYCOMMPUBLIC#-
CALIFOR39380
t
NIA
SAN DIEGO COUNTY
MY COMM. EXPIRES JANUARY
Affix seal here)