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2013/04/12 Agreement Apple Socal - Applebee's Restaurant DOC # 2014-0336008 09/04/2014 01:56P Fee:NC Page 1 of 17 Recorded in Official Records RECORDED AT THE REQUEST OF County of Riverside W City Clerk Larry W. Ward City ofMenifee 1 ��93essIII�� �� I I1I I III11111II Recorder1III111111 WHEN RECORDED RETURN TO City Clerk S R U PAGE1 SIZE I DA IMIS=SMF -�— Menifee,City of Menifee29714 Haun Road CA92584 M A L 465 426 PCOR I T: CTY UNI �� (Space above Line for Recorder's Use) C 711 ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT APPLE SOCAL LLC, a Delaware limited liability company Date: August 20, 2014 157129v5 ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT BETWEEN CITY OF MENIFEE And APPLE SOCAL LLC THIS ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT (the "Agreement") is entered into and effective on August 20, 2014 (the "Effective Date") by and between the City of Menifee, a California general law municipal corporation ("City"), and Apple ".. SoCal LLC, a Delaware limited liability company ("Operator"). C" R_E_CI_TA_LS 6i 7 A. Operator intends to operate a free standing restaurant building containing approximately 5,490 square feet ("Restaurant") to be located at 27750 Newport Road, Menifee, California, as legally described in Exhibit "A" attached hereto and made a part herein by this reference (the "Property"). Operator has entered into a ground lease of the Property dated April _ 12, 2013, as may be amended from time to time (the "Lease"), with the Property owner for the C operation of the Restaurant facility. The Property is part of the Newport Towne Square Development. B. Operator has requested City to enter into a sales tax revenue sharing agreement pursuant to the City's Economic Incentive Program under Chapter 16.01 of the Menifee Municipal Code. The purpose of the City's Economic Incentive Program is to provide economic incentives to encourage new businesses in the City. C. The City Council finds and determines that the Restaurant is likely to result in employment of City residents, increases in sales tax revenues to the City, help fulfill community's desire for more quality sit down restaurants in the City, and provide other amenities. City acknowledges the public benefit of such results and wishes to encourage the economic vitality and success of the Restaurant by providing financial assistance to be derived from future sales tax revenues generated by the Restaurant to encourage expansion of job opportunities in the City. D. City and Operator agree that the amount of sales tax revenue sharing provided for in this Agreement is a fair exchange for the consideration actually furnished to City and that each City payment to be made hereunder will not be made unless new sales tax revenues are realized from the Restaurant and that such payments have been calculated so that no payment will exceed the resources available to make the payment in the fiscal year in which it is due. In no event 1 E. The City Council finds and determines that the economic incentives provided under this Agreement meet the conditions set forth in Section 16.030.020 of the City of Menifee Municipal Code. NOW, THEREFORE, in consideration of the above Recitals and of the mutual covenants hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,the parties hereto do hereby agree as follows: 1. Definitions. In this Agreement, unless the context otherwise requires, the following words and phrases shall have the meaning set forth below: 1.1 "City" is the City of City of Menifee. mNw 1.2 "Operator" means Apple SoCal, LLC, the owner and party responsible s" for operating the Restaurant and all successors, transferees, or assigns thereof, �- 1.3 "Property" is described in Exhibit A attached hereto and incorporated _ herein by this reference. 1.4 "Reasonable Attorney's Fees" when used to describe attorney's fees to be paid by Operator to the City Attorney's law firm on behalf of or in defense of City shall mean the full private rate charged by the City Attorney's law firm to private clients in accord with the City's contract with that law firm. 1.5 "Restaurant" means Applebee's Neighborhood Grill and Bar or equivalent as the restaurant approved by the City and built in accordance with the Development Plan as set forth in Exhibit `B". 1.6 "Sales Tax Revenue" means that portion of taxes derived and received by the City and legally available for unrestricted use by the City's General Fund from the C imposition of the Bradley Burns Uniform Local Sales and Use Tax Law, commencing with Section 7200 of the Revenue and Taxation Code of the State of California, as amended, arising from all business conducted at the Restaurant in accordance herewith from time to time, which are subject to such Sales and Use Tax Law. 2. Interest of Operator. Operator represents that it has a leasehold interest in the Property. 3. Exhibits. The following documents are referred to in this Agreement attached hereto, incorporated herein, and made a part hereof by this reference: Exhibit Designation Description Exhibit A Property Legal Description -fmhibit$ De tom. 2 4. Term. 4.1 The term of this Agreement ("Term") shall commence on the Effective Date and shall extend for a period of five (5) years after the City's issuance of its initial certificate of occupancy for the Restaurant, unless this Agreement is terminated, modified, or extended as set forth in this Agreement or by mutual consent of the parties hereto. 4.2 This Agreement shall terminate and be of no force and effect upon: m 4 (a) the occurrence of the entry of a final judgment or issuance of a LL. final order after exhaustion of any appeals directed against the City as a result of any lawsuit filed against the City to set aside, withdraw, or abrogate the approval by the City Council of this s a Agreement; or s (b) the failure of Operator to operate the Restaurant in a manner that generates Sales Tax Revenue within Twelve (12) months of the Effective Date ("Operation Date"). The Operation Date may be extended in writing by the City Manager for up to an additional six (6) month period. Any extension of the Operation Date exceeding six (6) months must be approved by the City Council. 5. Public Benefits. City acknowledges as consideration for this Agreement that the Restaurant will result in significant public benefits, including without limitation, employment opportunities for local residents, additional sales tax revenues for the City, an additional sit down restaurant which is desired by the community and other amenities for the City. 6. Changes in Restaurant. No major change, modification, revision, or alteration may be made to the Restaurant or the Property as shown on the approved Development Plan without review and approval by those agencies of the City approving the Development Plan in the first instance. City may expand the permitted uses for the Restaurant without amending this Agreement by processing such changes through appropriate review and adoption procedures as may be legally required, so long as Operator or its successor retains its existing entitlements. 7. Operating Covenants. 7.1 Operator hereby covenants and agrees to develop the Restaurant consistent with the plans described in the Development Plan in attached Exhibit `B". The Operator agrees to operate the Restaurant for at least five (5) years. 7.2 Operator shall open and operate the Restaurant commencing no later than twelve (12) months after of the date of this Agreement unless such period is extended as set forth in Section 4.2(b). 7.3 During the operation of the Restaurant, Operator shall keep and maintain the Property and landscaping in a clean, sanitary and orderly condition reasonably free 3 from debris, graffiti and waste materials and in good order, repair and safe condition consistent with Operator's other thirty (30) restaurant locations in Southern California. The Restaurant shall be open at least six days per week (subject to "Permitted Closure" as defined in the Lease) and at least serve lunch and dinner. In addition, Operator shall observe and comply with all "Governmental Requirements", as that term is defined in Section 13 hereof, provided, however, that Operator does not waive its right to challenge the validity of applicability of any such Governmental Requirements 7.4 During the operation of the Restaurant, Operator shall use its best v efforts and good faith to employ qualified local residents for jobs at the Restaurant. 7.5 The foregoing Sections 7.1 through 7.4 are hereby collectively referred to as the "Covenants." Zo Si 8. Consideration for Covenants. 8.1 In consideration for Operator's agreement to be bound by the Covenants, City shall pay to Operator, in the manner provided in Section 8.4, an amount equal to fifty percent (50%) of the Sales Tax Revenue generated by the Restaurant for the period commencing upon issuance of the certificate of occupancy by the City and continuing for a period of five (5) years or until Operator has been paid an aggregate amount equal to Fifty Thousand Dollars ($50,000.00), whichever occurs first. 8.2 The amounts due to Operator hereunder("Payments") shall be payable from any source of funds legally available to the City. The determination of the source of funds for the City's Payments shall be in the sole and absolute discretion of the City. Operator C acknowledges that the City is not making a pledge of Sales Tax Revenue or any other particular source of funds. The definition of Sales Tax Revenue, as used herein, is used merely as a -- measure of the amount of Payments due hereunder and as a means of computing the City's Payments in consideration for the Covenants. 8.3 It is acknowledged that the City's obligation to make the Payments provided herein is specifically contingent upon receipt by the City of Sales Tax Revenue derived from operation of the Restaurant. The City shall not be obligated to make any Payments hereunder if Sales Tax Revenue are not received by the City which are derived from operations of the Restaurant. Further, in no event shall the amount of Payments hereunder exceed (a) Fifty Thousand Dollars ($50,000.00) in the aggregate during the Term, or (b) an amount equal to fifty percent (50%) of the amount of Sales Tax Revenue derived from such source in any full or partial fiscal year(July 1-June 30) in which such Payments are to be made. 8.4 The City's Payments to Operator hereunder shall be made annually, on or before October 3151 of each year during the payment period described herein. The amount 4 of the Payment due on each payment date shall be equal to fifty percent (50%) of the total Sales Tax Revenues generated from the Restaurant and received by the City during the applicable preceding annual period as confirmed by the report provided to the City by the State Board of Equalization and the sales tax returns filed by Operator. Operator, on its behalf, and on behalf of its successors-in-interest, hereby waives its right to protect against disclosure with other state agencies of the information contained in its sales tax returns to the extent necessary to comply with the terms of this Agreement and further authorizes the release of such information to the extent necessary to comply with the terms of this Agreement. In all other respects the information contained in Operator's sales tax returns is confidential and shall not be disclosed by the City or its attorneys to any third party except �M1 pursuant to a court order. tee.. N Operator shall use the Payments received from the City for operation costs of the m a Restaurant. The Payments shall not be used for any construction or building costs of the TI Restaurant. 8.5 The City and Operator acknowledge and agree that any Payments by the City shall only be made for those periods in which Operator is in compliance with the Covenants. Therefore, the failure of the City to make any Payment required by this Agreement because of the existence of any uncured default by Operator under the Covenants shall not cause the acceleration of any future Payments by the City to Operator beyond the date of such default; provided, however, that if any such default is cured, the amount of any Payment previously withheld on account thereof promptly shall be paid to Operator and the normal schedule of Payments shall resume. 9. Assignment. 9.1 Right to Assign. The Operator shall have the right to transfer or assign the Lease and the Restaurant in whole or in part (a "Transfer"), provided that no such partial Transfer shall violate the state or local laws as to any person, partnership,joint venture, firm, or corporation at any time during the Term of this Agreement; further provided, however, that any such Transfer shall include the assignment and assumption of the rights, duties and obligations of Operator arising under or from this Agreement and shall be made in strict compliance with the following conditions precedent: (a) No sale, transfer or assignment of any right or interest under this Agreement shall be made without the prior express written consent of the City, which consent shall not be unreasonably withheld, conditioned or delayed, and should such a sale, transfer or assignment occur without the prior consent of the City, the City, as its sole remedy, shall no longer be obligated to make Payments to Operator or any successor in interest. (b) Operator agrees to provide sixty (60) days' prior written notice to the City of any proposed Transfer. 5 (c) Concurrent with any such transfer of Operator's right, title, interest and obligations under this Agreement, or within fifteen (15) business days thereafter, the Operator shall notify City, in writing, of such transfer and shall provide City with a copy of the executed agreement, in a form reasonably acceptable to the City Attorney, by the transferee or assignee and providing therein that the transferee or assignee expressly and unconditionally assumes all the duties and obligations of the Operator under this Agreement from and after the effective date of such Transfer. 9.2 Release of Transferring Operator. Notwithstanding any Transfer described in Section 9.1, the transferring Operator ("Transferor") shall continue to be obligated under this Agreement unless such Transferor is given a release in writing by City, which release r shall be given by City upon the full satisfaction of ALL of the following conditions: 8 — �Nn ti (a) The Transferor no longer has a legal interest in all or any part of the Restaurant or Lease transferred or assigned. (b) The Transferor is not then in default under this Agreement. (c) The Transferor or transferee or assignee ("Assignee") has provided City with the notice and a copy of the executed agreement required under Section 9.1(c) above. 9.3 Subsequent Assignment. Any subsequent Transfer after an initial Transfer shall be made only in accordance with and subject to the terms and conditions of this Section. 10. Binding Effect of Agreement. The burdens of this Agreement bind and the benefits of the Agreement inure to the parties hereto and their respective successors and assigns C in accordance with the provisions of and subject to the limitations of this Agreement. 11. Restaurant as a Private Undertaking/Relationship of Parties. It is specifically understood and agreed by and between the parties hereto that the development of the Restaurant is a private development, that neither party is acting as the agent of the other in any respect hereunder, and that each party is an independent contracting entity with respect to the terms, covenants, and conditions contained in this Agreement. No partnership, joint venture, or other association of any kind is formed by this Agreement. The only relationship between City and Operator is that of a government entity regulating the development and land use of private property within the City. 12. Indemnity and Cost of Litigation. 12.1 Hold Harmless. Operator agrees to and shall indemnify, protect, defend, and hold City, its officers, employees, agents, and representatives harmless from liability for damage or claims for damage for personal injury, including death, and claims for property damage which may arise from the direct or indirect operations of the Operator or those of its contractor, subcontractor, employee, agent, or other person acting on its behalf which relate to 6 the Restaurant. Operator agrees to and shall indemnify, protect, defend, and hold harmless the City and its officers, employees, agents, and representatives from actions for damages caused or alleged to have been suffered by reason of the operations referred to in this paragraph, regardless of whether the City prepared, supplied, or approved plans or specifications for the Restaurant. This indemnification requirement shall survive the termination or expiration of this Agreement for the applicable statute of limitation. 12.2 Third Party Litigation Concerning Agreement. Operator, at its expense, shall indemnify, protect, defend and hold harmless the City, its officers and employees, or agents against any loss, cost, expense, including Reasonable Attorneys' Fees, claim, or counter-claim, complaint, or proceeding to attack, set aside, void, or annul the approval of this Agreement and/or any environmental determination made under the provisions of the California Environmental Quality Act (Pub. Res. Code § 21000 et sea.), or the approval of any permit granted pursuant to this Agreement brought by a third party. City shall notify Operator of any ©© such claim, action or proceeding, and City shall cooperate in the defense. If City fails to notify Operator of any such claim, action or proceeding, or if City fails to cooperate in the defense, Operator shall not thereafter be responsible to indemnify, protect, defend, or hold harmless City. City may in its discretion participate in the costs associated with the defense of any such claim, action, or proceeding. 12.3 Environmental Assurances. Operator shall indemnify, protect, defend with counsel approved by City, and hold harmless City, its officers, employees, agents, assigns, and any successor or successors to City's interest from and against all claims, actual damages (including but not limited to special and consequential damages), natural resources damages, punitive damages, injuries, costs, response remediation and removal costs, losses, demands, debts, liens, liabilities, causes of action, suits, legal or administrative proceedings, interest, fines, charges, penalties and expenses (including but not limited to Reasonable Attorneys' Fees and expert witness fees and costs incurred in connection with defending against any of the foregoing or in enforcing this indemnity) of any kind whatsoever paid, incurred, or suffered by, or asserted against, City or its officers, employees, or agents arising from or attributable to any repair, cleanup, or detoxification, or preparation and implementation of any removal, remedial, response, closure, or other plan (regardless of whether undertaken due to governmental action) concerning any Hazardous Substance or hazardous wastes at any place within the Restaurant which is the subject of this Agreement. The foregoing indemnity extends beyond the term of this Agreement for the applicable statute of limitation and is intended to operate as an agreement pursuant to Section 107(e) of the Comprehensive Environmental Response, Compensation, and Liability Act, "CERCLA," 42 U.S.C. Section 9667(e), and California Health and Safety Code Section 25364, and their successor statutes, to insure, protect, hold harmless, and indemnify City from liability. 12.4 Reservation of Approval Rights to Operator's Selection of Counsel. With respect to Sections 12.1 to 12.3 herein, City reserves the right to either (1) approve the attorney(s) which Operator selects, hires, or otherwise engages to defend City hereunder, which approval shall not be unreasonably withheld, or (2) conduct its own defense, provided, however, 7 that Operator shall reimburse City forthwith for any and all reasonable expenses incurred for such defense, including reasonable attorney's fees, upon billing and accounting therefor. 12.5 Survival. The provisions of this Section 12.1 to 12.3, inclusive, shall survive the expiration or termination of this Agreement. 12.6 Obligation to Refrain from Discrimination. Operator covenants and agrees for itself, its successors and assigns that there shall be no discrimination against or segregation of any person, or group of persons, on account of race, color, creed, national origin, sex, marital status, handicap, religion or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Restaurant nor shall Operator itself or any person R,v claiming under or through it establish or knowingly permit any such practice or practices of w discrimination or segregation with reference to the selection, location, number, use or occupancy s T of tenants, leases, subtenants, sublessees or vendees of the Restaurant. y Lii M Operator shall refrain from restricting the rental, sale or lease of the Restaurant on the basis of race, color, creed, ancestry, national origin, sex, marital status, handicap or religion of any person. All such leases with respect to the Restaurant or contracts with respect to the rental, MMM sale or lease of the Restaurant dated after the Effective Date shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: C In leases: "The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or through him or her, and this lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, national origin, sex, marital status, handicap, religion, or ancestry, in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the premises herein leased nor shall the lessee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants or vendees in the Restaurant." In contracts: "There shall be no discrimination against or segregation of, any person, or group of persons on account of race, color, creed, national origin, sex, religion, marital status, handicap, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Restaurant, nor shall the transferee himself or herself or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Restaurant." 12.7 Effect and Duration of Covenants. The covenants established in this Agreement shall, without regard to technical classification and designation, be binding on and 8 inure to the benefit of the parties hereto and their respective successors and assigns and any successor in interest to the Restaurant or any part thereof. The covenants contained in this Agreement against discrimination shall remain in perpetuity. 13. Compliance with Applicable Laws. Operator acknowledges and agrees that Operator is responsible for compliance with all state, federal and local laws and regulations, including without limitation, all applicable federal, state and local occupation, safety and health laws, rules, regulations and standards, the provisions of Labor Code Section 1720 et seq. (prevailing wage law), the Davis-Bacon Act, development standards (as they apply to the Restaurant), building, plumbing, mechanical and electrical codes as they apply to the Property and the Restaurant, and all other provisions of the City and all applicable disabled and 4 handicapped access requirements, including without limitation, the Americans with Disabilities Act (42 U.S.C. Section 12101, et seq.) and the Unruh Civil Rights Act, California Civil Code a " Section 51 et seq. (collectively "Governmental Requirements"). Operator acknowledges and I NF, agrees that City has made no representation that Operator is exempt from such laws and regulations. Operator agrees to comply with all applicable federal, state and local laws and to indemnify and hold City harmless for any failure on the part of Operator to achieve such compliance. 14. Legal Costs. The City and Operator each shall pay and be responsible for the selection and payment of their own legal fees, costs and expenses incurred in connection with the preparation, execution, delivery and adoption of this Agreement. 15. Periodic Review of Compliance with Agreement. The City may review this Agreement at least once during every six (6) month period from the Effective Date of this Agreement. In the event Operator is in default under this Agreement and such default has not been cured within the applicable cure period provided in Section 18.1, the City may terminate this Agreement by giving notice to that effect to Operator. Delay in giving a notice of default shall not constitute a waiver of the default. During each periodic review by City, the Operator is required to demonstrate compliance with the terms of this Agreement. The Operator agrees to furnish such evidence of compliance as City reasonably may require. 16. Amendment or Cancellation of Agreement. This Agreement may be amended or canceled in whole or in part only by mutual written consent of the parties. The provisions of this Section do not impact the right of either party to terminate this Agreement because of the failure of the other party to cure a Default (as defined in Section 18.1) under this Agreement within the Cure Period (as defined in Section 18.1). 17. Enforcement. Unless amended or canceled as herein provided, this Agreement is enforceable by any party to it notwithstanding a change in the applicable general or specific plan, zoning, subdivision, or building regulations adopted by the City which alter or amend the rules, regulations, or policies governing permitted uses of the land, density, design, improvement, and construction standards and specifications. 9 18. Default, Remedies and Termination. 18.1 Default. Either party's failure to perform any obligation required to be performed or observed by it under this Agreement constitutes a default under this Agreement. In the event of a default, the non-defaulting party shall give written "Notice of Default" to the defaulting party specifying the Default. Delay in giving such notice shall not constitute a waiver of the Default. If the defaulting party fails to cure the Default within thirty (30) days after receipt of the Notice of Default or, if such Default is not capable of being cured within thirty (30) days, then if such Default is not cured within such additional time as may be reasonably necessary to do so provided that the defaulting party commences such cure during the initial 30- u, day period and thereafter diligently and continuously pursues such cure to completion (the applicable time period being referred to as the "Cure Period"), then the defaulting party shall be y U liable to the non-defaulting party for any and all damages caused by such default. .rQ CJ m 18.2 Waiver. Failure or delay in giving Notice of Default shall not waive _ a party's right to give future notice of the same or any other Default. 0 19. Attorney's Fees and Costs. If legal action by either party is brought because of breach of this Agreement or to enforce a provision of this Agreement, the prevailing party is entitled to reasonable attorney's fees and court costs. 20. Notices. All notices required or provided for under this Agreement shall be in writing and sent by a party or its legal counsel and shall be delivered in person, sent by nationally recognized overnight courier or sent by U.S. certified mail, postage prepaid and shall be deemed to have been delivered upon the earliest of actual receipt, refusal or three (3) business days following deposit thereof in the United States Mail. Notices required to be given to City shall be addressed as follows: To City: City Manager City of Menifee 29714 Haun Road Menifee, California 92586 Attn: Rob Johnson With a copy to: Aleshire & Wynder LLP 3880 Lemon Street Riverside, California 92501 Attn: Julie H. Biggs, Esq. 10 Notices required to be given to Operator shall be addressed as follows: To Operator: Apple SoCal LLC 6200 Oak Tree Blvd., Suite 250 Independence, OH 44131 Attn: Controller With a copy to: Peter B. Loughman, Esq. 155 N. Michigan Avenue, Suite 636 Chicago, IL 60601 A party or any person entitled to receive copies of notices may change its address by giving Nnotice in writing to the other party and thereafter notices shall be addressed and transmitted to ` the new address. N� m Q 21. Cooperation. City agrees that it shall accept for processing and promptly take C action on all applications, provided they are in a proper from and acceptable for required processing for discretionary permits, tract or parcel maps, or other land use entitlement for development of the Restaurant in accordance with the provisions of this Agreement in order to ensure processing is completed in accord with all applicable statutory time limits and environmental requirements. City shall cooperate with Operator in providing expeditious review of any such applications, permits, or land use entitlement and, upon request and payment of any costs and/or extra fees associated therewith by Operator, City shall assign planner(s), building inspector(s), and/or other staff personnel as required to insure the timely processing of such applications and completion of the Restaurant. 22. Further Actions and Instruments. Each of the parties shall cooperate with and provide reasonable assistance to the other to the extent necessary to implement this Agreement. Upon the request of either party at any time, the other party shall promptly execute, with acknowledgement or affidavit if required, and file such reasonable instruments and writings and -- take any actions as may be reasonably necessary to implement this Agreement or to evidence or consummate the transactions contemplated by this Agreement. In the event, Operator or Operator's successor requires supplemental or additional agreements for purposes of securing financing or similar purposes, City will endeavor to assist in this respect, provided, however, Operator or Operator's successor shall reimburse the City within thirty (30) days of written request for any and all costs associated with processing,reviewing,negotiating, or acting on such agreements. 23. Rules of Construction and Miscellaneous Terms. 23.1 The singular includes the plural; the masculine gender includes the feminine; "shall" is mandatory, "may" is permissive. 23.2 If a party consists of more than one entity, their obligations are joint and several. 11 23.3 The time limits set forth in this Agreement may be extended by mutual written consent of the parties in accordance with the terms of this Agreement and the procedures for adoption of the Agreement. 23.4 This Agreement is made and entered into for the sole protection and benefit of the parties and their successors and assigns. No other person, including but not limited to third party beneficiaries, shall have any right of action based upon any provision of this Agreement. 24. Entire Agreement. This Agreement and the exhibits hereto contain the complete, final, entire, and exclusive expression of the agreement between the parties hereto, and LL are intended by the parties to completely state the agreement in full. Any agreement or representation respecting the matters dealt with herein or the duties of any party in relation Oj m thereto not expressly set forth in this Agreement shall be null and void. R 25. Counterparts. This Agreement may be executed in multiple counterparts, each of which so fully executed counterpart shall be deemed an original. No counterpart shall be deemed to be an original or presumed delivered unless and until the counterpart executed by the other party to this Agreement is in the physical possession of the party seeking enforcement thereof. 26. Authority to Execute. Each party hereto expressly warrants and represents to the other party that it has the authority to execute this Agreement, to perform it obligations hereunder and that the person signing this Agreement on its behalf has the authority to do so. C 12 IN WITNESS WHEREOF this Agreement has been executed by the authorized representatives of the parties hereto as of the day and year first above written. "CITY" City of Me By: Scott Mann, Mayor Attest: K�G Kathy Bennett, City Clerk ru m m Approved as to form: ie H. Biggs, Cit orney "OPERATOR" Apple SoCal LLC, a Delaware limited liability company s_ B _ Patricl J. Eul erg Vice President-Real Estat 13 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE y 11 Be State of California 1 County of ?N�V Q s:, o Jl Onptupl,ivat lLfbefore me, n Date Her lnseTI me and Title of t e nicer ' personally appeared Si an Name(s)of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(&) whose name(&) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in JENNIFER ALLEN his/her/their authorized �( ca aci y Commission# 1984645 P , and that b < : ® z his/hw/their signature(%) on the instrument the Notary Public-California z Riverside County ? person(a), or the entity upon behalf of which the My Comm. Expires Jul 9,2016 person(a) 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. SignatureiL _ Place Notary Sea OPTIONAL l Above '7 _ Sig d Notary Public Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: gcwodlc (]Pa/�libMnn Tnee4 C IacYa� mnn Document Date: Number of Pages: Signers) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Corporate Officer — Title(s): ❑Corporate Officer — Title(s): ❑ Individual ❑ Individual ❑ Partner —❑Limited ❑General Top of thumb here ❑Partner — ❑Limited ❑General Top of thumb here ❑ Attorney in Fact ❑Attorney in Fact ❑ Trustee ❑Trustee ❑ Guardian or Conservator ❑Guardian or Conservator ❑ Other: ❑Other: Signer Is Representing: Signer Is Representing: ©2010 National Notary Association•NationalNotary.org•1-800-US NOTARY(1-800-876-6827) Item#5907 11111111111111111111111111111111111111 1!III IIII r, rRa1 15 of 1F- ALL-PURPOSE ACKNOWLEDGMENT State of Ohio ) ss. County of Cuyahoga ) On Qv jug.f ab 2014,before me, FiarrttIL M. (- I, Notary Public, personally appeared Patrick J. Eulbere. Name of Signer(s) 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 Ohio that the foregoing paragraph is t e and correct. Witness my hand and official seal. ,t+tpttneq,�� , SIGNATU OF NOTARY • Garrett M Huth Notary Public,State of Ohio.Cuya.Cry. My Commission expires 08/19/2017 CAPACITY CLAIMED BY SIGNER [X] OFFICER(S) (TITLE[S]): Vice President-Real Estate SIGNER IS REPRESENTING: Name of person(s) or entity(ies): Apple SoCal LLC r,4. 14/ F14fF1 --FP EXHIBIT A PROPERTY LEGAL DESCRIPTION Leasehold Estate created by Ground Lease dated April 12, 2013, as amended from time to time, between Newport Towne Square, LLC, as landlord, and Apple SoCal LLC, as tenant, with respect to the following described real estate: In the City of Menifee, County of Riverside,State of California: a Being that portion of Parcel B of Notice of Lot Line Adjustment No. 13-004, per document recorded January 31,2014 as Instrument No.2014-0044597 of Official Records described as follows: 'n G 'w" Commencing at the northwesterly corner of Lot A of Parcel Map No. 22233, per map recorded in Book 187, pages 9 through 14 inclusive of Parcel Maps, records of said Riverside County; Thence North 0°35'38" West along the westerly line of said Parcel Map,a distance of 27.00 feet; Thence North 89°53'43" East,a distance of 5.05 feet to the True Point of Beginning; Thence continuing North 89°53'43" East, a distance of 74.19 feet; Thence North 0'06'17" West,a distance of 134.51 feet; MEM Thence South 89°53'36"West, a distance of 56.86 feet; Thence South 0°06'16" East, a distance of 19.76 feet; _ Thence South 89°53'43" West, a distance of 17.33 feet; Thence South 0'06'16" East, a distance of 114.75 feet to the True Point of Beginning. Containing 9,637.3 square feet, more or less. Prepared by me or under my supervisiono u.W78 Gordon D Edwards, PLS 6678 * iM•o-au-tap �Q A-1