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 -1- DocuSign Envelope ID: F90BA16A-E9AO-43EC-AEEO-3EFA7C8FDB8A 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. -2- DocuSign Envelope ID: F90BA16A-E9AO-43EC-AEEO-3EFA7C8FDB8A 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 -3- DocuSign Envelope ID: F90BA16A-E9AO-43EC-AEEO-3EFA7C8FDB8A 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"). -4- DocuSign Envelope ID: F90BA16A-E9AO-43EC-AEEO-3EFA7C8FDB8A 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] -5- DocuSign Envelope ID: F90BA16A-E9AO-43EC-AEEO-3EFA7C8FDB8A 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 -6- DocuSign Envelope ID: F90BA16A-E9AO-43EC-AEEO-3EFA7C8FDB8A 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 i i I I i .• • •• . •1:` .` `1 1 IM . � � � � . . ' � � • _ "iel�c nit, at WE n .r.s..•lil -on• BIE■a��lfi'i•wl�ii��miiw:�■iuw•t ?T ■' I slut ati e, n as .�ra• asa® �awwr isM - :�aeww•ex+ ■w.�.w s�,`s`1r1.s-�M Itt■■■Ilrttrt_--- I ;7 A pt. 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