2020/03/02 KB Home Coastal, Inc. First Amendment Hidden Hills DocuSign Envelope ID: F90BA16A-E9AO-43EC-AEEO-3EFA7C8FDB8A
RECORDED AT THE REQUEST OF
AND WHEN RECORDED RETURN TO:
CITY OF MENIFEE
City Hall
29844 Haun Road
Menifee, CA 92586
Attn: City Manager
(Space Above For Recorder's Use)
This First Amendment to Development Agreement
is recorded at the request and for the benefit of the
City of Menifee and is exempt from the payment of
a recording fee pursuant to Government Code
Sections 6103 and 27383.
FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
THIS FIRST AMENDMENT TO DEVELOPMENT AGREEMENT (this "First
Amendment") is effective as of the 2nd day of March, 2020 (hereinafter the "Effective
Date") by and among (i) the CITY OF MENIFEE, a California city (the "City"), and (ii) KB
HOME COASTAL INC., a California corporation ("Landowner"). City and Landowner are
sometimes hereinafter collectively referred to as the "Parties" and singularly as "Party."
RECITALS
A. On or about March 2, 2010, City and Landowner entered into that certain
Development Agreement, which was recorded on March 19, 2010, as Instrument
No. 2010-0126721, in the Official Records of Riverside County, California (the
"Development Agreement");
B. On March 26, 2020, the City Finance Commission held a duly noticed public
hearing and voted to recommend extending the term of the Development Agreement
between the City and Landowner and amend payment of Development Impact Fees; and
C. On September 23 , 2020, the Planning Commission held a duly noticed public
hearing and voted to recommend extending the term of the Development Agreement
between the City and Landowner and amend payment of Development Impact Fees; and
D. On December 2 , 2020, the City Council held a duly noticed public hearing
and voted to end the term of the Development Agreement between the City and
Landowner and amend payment of Development Impact Fees; and
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E. After reviewing the Project EIR in the context of the consideration and approval of
this First Amendment, the City Council has determined that none of the elements set forth
in Public Resources Code Section 21166 or its implementing regulations (14 Cal. Code
Regs. Section 15162) exist and therefore has determined, in accordance therewith, that
no subsequent or supplemental Environmental Impact Report or Mitigated Negative
Declaration is required to be prepared prior to adopting and approving this First
Amendment.
F. For purposes of ensuring the public record accurately reflects the revised payment
of Development Impact Fees and term of the Development Agreement, City and
Landowner now desire to update the Development Agreement to amend the term and
Development Impact Fees payment schedule.
NOW, THEREFORE, in consideration of the above Recitals, which are incorporated
herein by this reference, and of the mutual covenants hereinafter contained, and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, City and Landowner agree as follows:
1. Defined Terms. Capitalized terms that are not otherwise defined in this First
Amendment shall have the meaning assigned to those terms in the Development
Agreement.
2. Amendment.
2.1. Recital G. of the Development Agreement is amended to read:
G. As used in this Agreement, the term "City's DIF"shall be defined to mean
those development impact fees and exactions, including, without limitation,
dedications and any other fee or tax (including excise, construction or any
other tax) relating to development or the privilege of developing, which were
in effect on a City-wide basis immediately prior to the effective date of
Ordinance No. 2009-43. As consideration for the Civic Site Conveyance, in
addition to reductions in the City DIF accorded prior to March 2, 2020, City
has agreed that all lots within TTM 30142 shall (i) receive an eighty percent
(80%) reduction in the payment of City's DIF that is due and paid between
March 2, 2020 and March 1, 2022, and (ii) receive a fifty percent (50%)
reduction in the payment of the City's DIF for fees that are due and paid
from March 2, 2022 through March 1, 2025 (the foregoing reductions are
collectively referred to and defined in this Agreement as the "Development
Impact Fee Reductions") . A complete list of City's DIF is provided on
Exhibit C attached hereto.
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2.2. Exhibit C: Exhibit C to the Development Agreement shall be replaced with the
Exhibit C hereto.
2.3.County Public Facilities Fee: From and after the Effective Date of this First
amendment, the term "County Public Facilities Fee" shall be stricken from, and
shall have no further application under, the Development Agreement and its
Exhibits.
2.4.Section 6.2 Term: The Development Agreement is hereby amended from a period
of ten (10)years to a period of fifteen (15) years, thereby amending the termination
date of the Development Agreement from March 2, 2020, to March 2, 2025.
2.5.Section 7.2 Fees and Exactions. Section 7.2 of the Development Agreement is
hereby amended to read in full as follows: "As consideration for the Civic Site
Conveyance, City hereby agrees that all lots within TTM 30142 shall be entitled to
receive the Development Impact Fee Reductions (as applicable for the time
periods described in Recital G). Protection from any increases in any of the City's
DIF shall not include increases mandated by the County, the State of California,
the federal government, or any other entity that is outside the control of the City.
This section shall not be construed to limit the authority of the City to charge
Processing Fees."
3. Prevailing Wage Indemnity and Notice to Landowner of Labor Code Section 1781 .
In connection with, but without limiting, the indemnification obligations set forth in Section
25 of the Development Agreement, Landowner hereby expressly acknowledges and
agrees that the City is not by the Development Agreement and/or this First Amendment
affirmatively representing, and has not previously affirmatively represented, to the
Landowner or any contractor(s) of Landowner for any construction on or development on
or adjacent to the Property, in writing or otherwise, in a call for bids or in any agreement
or otherwise, that any work to be undertaken on the Property and/or to be undertaken in
connection with the development of the Project, as may be referred to in the Development
Agreement or construed under the Development Agreement and/or this First Amendment,
is not a "public work," as defined in Section 1720 of the Labor Code, or under any similar
existing or hereinafter enacted law or regulation, or that such work qualifies for one of the
exceptions set forth Section 1720 of the Labor Code, or under any similar existing or
hereinafter enacted law or regulation. The Parties agree that, in connection with the
development and construction (as defined by applicable law) of the Project, including,
without limitation, any and all public works (as defined by applicable law), Landowner
shall bear all risks of payment or non-payment of prevailing wages under California law
and/or federal law and/or the implementation of Labor Code Section 1781, as the same
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may be amended from time to time, and/or any other similar law. With respect to the
foregoing, Landowner shall be solely responsible, expressly or impliedly and legally and
financially, for determining and effectuating compliance with all applicable federal, state
and local public works requirements, prevailing wage laws, and labor laws and standards,
and City makes no representation, either legally and/or financially, as to the applicability
or non-applicability of any federal, state and local laws to the construction of the Project
as it may be amended pursuant hereto or otherwise
Without limiting the foregoing, Landowner shall indemnify, protect, defend and hold
harmless the City, any City agencies and their respective elected and appointed councils,
boards, commissions, officers, agents, employees, volunteers and representatives
(collectively, "City Parties"), with counsel reasonably acceptable to City, from and against
"increased costs" as defined in California Labor Code Section 1781 (including City's
reasonable attorneys' fees, court and litigation costs, and reasonable fees of expert
witnesses) in connection with the development or construction (as defined by applicable
law) of or on the Property and/or in connection with the development of the Project, that
results or arises in any way from (1) noncompliance by Landowner of the requirement, if
and to the extent applicable, to pay federal or state prevailing wages and hire apprentices;
or(2) failure by Landowner to provide any required disclosure or identification as required
by California Labor Code Sections 1720 et seq. including without limitation specifically
Section 1781 , as the same may be amended from time to time. The foregoing indemnity
shall survive the expiration or earlier termination of the Development Agreement as
amended by this First Amendment.
4. Indemnification Procedures. Wherever the Development Agreement and/or this
First Amendment requires Landowner to indemnify any City Party:
4.1.Prompt Notice. City shall promptly notify Landowner in writing of any claim,
demand, administrative action, or action at law or equity based on a loss, liability,
fine, penalty, forfeiture, cost, and/or in damage (whether in contract, tort or strict
liability, including but not limited to personal injury, death at any time, property
damage, and statutory claims or damages [including, without limitation, under
Labor Code section 1720 et seq]) that is alleged to have arisen out of or is in any
way related to (1) the approval of the Development Agreement and/or this First
Amendment and/or the Project Approvals; (2) and development or use of the
Property under the Development Agreement and/or the First Amendment and/or
the Project Approvals, and (3) any actions or inactions by the Landowner or its
contractors, subcontractors, agents, or employees in connection with the
construction or improvement of the Property and the Project, including off-site
Public Improvements (collectively, a "Claim").
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4.2. Cooperation. City shall reasonably cooperate with Landowner's defense, provided
Landowner reimburses City for actual reasonable out of pocket expenses
(including reasonable attorneys' fees and costs) of such cooperation.
4.3.Settlement. Any settlement shall require the prior written consent of both City and
Landowner, which consent shall not be unreasonably withheld if the settlement is
objectively financially reasonable.
5. Challenge to Enforceability of Specific Obligations. If a court of competent
jurisdiction finds invalid or unenforceable any provision of the Development Agreement
of this First Amendment that purports to supersede or otherwise render ineffectual any
federal, state, or local law, Landowner shall perform its obligations under such law or
regulation (or shall perform as otherwise specifically directed by a court of competent
jurisdiction), and the Development Agreement and this First Amendment shall otherwise
remain in full force and effect.
6. Effective Date of this First Amendment: The Effective Date of this First Amendment
shall be March 2, 2020, and any City's DIF paid by Landowner between March 2z 2020,
and the date this First Amendment is executed that is above and beyond what which is
agreed to in this First Amendment shall be refunded by the City.
7. Terms of Development Agreement. Except as modified by this First Amendment,
all of the terms and conditions of the Development Agreement shall remain in full force
and effect.
8. Counterparts. This First Amendment may be executed in counterparts, each of
which when executed and delivered shall be deemed to be an original and all such
counterparts together, shall constitute one and the same instrument.
[signatures on next page]
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IN WITNESS WHEREOF, City and Landowner have executed this First Amendment on
the day and year set forth in the preamble above.
"City"
CITY OF MENIFEE, a California city
DocuSigned by:
By: jq0V"_
Armando G. Villa, City Manager
ATTEST:
EDocuSigned by:
ara�, Q. hawwav-"
9 7MMAn199Ga!`R
Sarah A. Manwaring, City Clerk
APPROVED AS TO FORM:
RUTAN & TUCKER, LLP
DocuSigned by:
9 T: vtj, Gfy a+fbnt"
Je rey elching, City Attorney
KB HOME COASTAL INC., a California
corporation
By:
John P. Fenn, President
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EXHIBIT C
COMPLETE LIST OF CITY'S DEVELOPMENT IMPACT FEES
(REPLACING EXHIBIT C TO DEVELOPMENT AGREEMENT)
DocuSign Envelope ID: F90BA16A-E9AO-43EC-AEEO-3EFA7C8FDB8A
Exhibit"C"
MEN IFEE DIF FEE SCHEDULE—ADOPTED DECEMBER 6, 2017
RESIDENTIAL FEES EFFECTIVE JULY 1, 2018 (PER DWELLING UNIT)
Fee outside Fee w in Fee w in
MDP Encanto MDP South
South/Encanto Drive SD zone
Drive SD zones zone
Single Family Unit* $ 7,803 $ 8,839 $ 10,089
Multi-Family Unit* $ 5,567 1 $ 6,137 1 $ 6,825
Accessory Dwelling Unit* $ 3,510 $ 4,080 $ 4,768
Senior/Assisted Living* $ 3,020 $ 3,590 $ 4,278
*If subject to Quimby subtract Parks Land Acquisition Fee shown in Table E.1
below.
NON-RESIDENTIAL FEES EFFECTIVE JULY 1, 2018-JUNE 30,2019 (PER 1,000 SF)
50% of the Maximum Justified Fee
Fee outside
MDP Fee w/in Fee w/in
South/Encanto Encanto MDP South
SD areas SD Area Area
Retail Commercial $ 4,306.00 $ 4,673.50 $ 5,117.50
Service Commercial $ 3,545.50 $ 3,675.00 $ 3,831.00
Industrial/Business Park $ 2,183.00 $ 2,395.50 $ 2,651.50
NON-RESIDENTIAL FEES EFFECTIVE JULY 1, 2019 (PER 1,000 SF)
100%of the Maximum Justified Fee
Fee outside
MDP Fee w/in Fee w/in
South/Encanto Encanto MDP South
SD areas SD Area Area
Retail Commercial $ 8,612 $ 9,347 $ 10,235
Service Commercial $ 7,091 $ 7,350 $ 7,662
Industrial/Business Park $ 4,366 $ 4,791 $ 5,303
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