2019/07/30 MLC Holdings Indemification agreement, APN: 3721600-13, -06, -08, -07 & -03AGREEMENT TQ INDEMNIFY AND HOLD HARMLESS
This AGREEMENT TO INDEMNIFY AND HOLD HARMLESS ("Agreement") is made
and entered into on July3_6 , 2019 ("Effective Date") by and between the CITY OF MENIFEE
("City"), and MLC Holdings ("Developer"). The City and Developer are herein referred to
collectively as the "Parties" and individually as a "Party."
WHEREAS, Developer desires to submit development applications — including without
limitation — a Vesting Tentative Tract Map to subdivide 56.5 acres into 180 single family lots and
associated open space lots ("Entitlement Applications") — in order to obtain City approval for
the "Scott/Lindenberger Project", generally located at the intersection of Lindenberger and Scott
Roads (APNs 372160013, 372160006, 372160008, 372160007, and 372190003), in the City
of Menifee, CA ("Project"); and
WHEREAS, City is in the process of preparing a comprehensive update to its development
code ("Development Code Update") which is currently anticipated for consideration by the
Menifee Planning Commission ("Planning Commission"), followed by the City Council of the
City of Menifee ("City Council"), in the Fall and/or Winter of 2019; and
WHEREAS, the Parties acknowledge and understand that the Development Code Update
may be modified, revised, amended, delayed, and/or not adopted by the Planning Commission
and/or the City Council, and that after adoption the Development Code Update (as modified,
revised, or amended by the Planning Commission and/or the City Council) may be the subject of
litigation or other judicial or administrative action that could result in further changes or delays in
the effective date of the Development Code Update.
WHEREAS, Developer has requested permission from the City to commence staff -level
reviews and processing of the Entitlement Applications based on the assumption that the
Development Code Update will ultimately be adopted by the City Council without material
revisions to the current draft document; and
WHEREAS, Developer will incur significant costs in, among other expenses, paying for
all applicable and/or appropriate fees and charges, on a deposit basis and based on time and
materials spent, attendant to City's review of the Entitlement Applications.
WHEREAS, Developer has been informed and acknowledges that staff -level reviews and
processing of the Entitlement Applications based on the current draft of the Development Code
Update poses a risk, specifically that the Development Code Update may not be approved or may
be modified, revised, amended, or delayed and hereby agrees to assume that risk; and
WHEREAS, in the event that the Development Code Update is not approved and/or is
amended, Developer hereby agrees and acknowledges that it shall be solely responsible for
amending and/or resubmitting its Entitlement Applications and ensuring the Project conforms to
the provisions of the Development Code Update, if and as adopted; and
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WHEREAS, Developer has offered to, and hereby agrees that it will, indemnify and hold
the City harmless from any challenges arising from or related to proceeding with its Entitlement
Applications prior to approval and adoption of the Development Code Update.
NOW, THEREFORE, the City and Developer agree as follows:
1. Commencement of Processing of Entitlement Applications Prior to Avioroval
and Adoption of the Development Code Update. Subject to Developer's payment of all
applicable fees and costs to be incurred by the City in the review and processing of the Entitlement
Applications, City hereby grants Developer permission to proceed with the Entitlement
Applications and commence processing of same prior to approval and adoption of the
Development Code Update. Within seven (7) days of the Effective Date, Developer shall deliver
to the City an initial deposit ("Total Initial Deposit") of $28,000 ("Initial Deposit Amount")
which City shall use to for the costs (including without limitation staff and consultant time)
incurred by the City in processing the Entitlement Applications, that City will pay and deduct such
costs from the Deposit, and that at any time when the Deposit is reduced below fifty percent (50%)
of the Deposit Amount, Developer shall (upon receipt of notice from City) replenish the Deposit
to the Deposit Amount. This total deposit is for processing of the Tentative Tract Map ($20,000),
Landscape Plan review ($2,000), water quality management plan ($2,000), drainage study
($2,500), and Phase I Environmental Site Assessment (ESA) ($1,500) review. In addition, within
seven (7) days of the Effective Date, the Developer shall deliver to the City fixed fees in the amount
of $1,940 (for the environmental determination [$235] and geotechnical study review [$1,705]),
as well as a separate $549 made payable to the County of Riverside Department of Environmental
Health. Note the $28,000 and $1,940 can be combine in one check for a total payment of $29,940.
2. No Reliance by Developer, Developer accepts the City's permission to proceed
with its Entitlement Applications and commence processing of same prior to approval and
adoption of the Development Code Update with the understanding that neither City, nor any of its
officers, employees, agents or representatives, or any other person, has made any representation,
or promise concerning approval or adoption of the Development Code Update.
3. Developer Responsibility to Comply with Menifee Municipal Code as
UltimatelX Adolated by City Council. Developer hereby agrees to be solely responsible for
amending and/or resubmitting the Entitlement Applications and ensuring the Project conforms to
the provisions of the Menifee Municipal Code if the current draft of the Development Code Update
is not approved and/or is amended.
4. No Vested Right. Developer acknowledges and agrees that neither this Agreement
nor the filing and/or processing of the Entitlement Applications creates any vested right to receive
any City approval for or to complete construction of the Project; and
5. Indemnification and Hold Harmless. Developer agrees to hold the City, and its
officers, employees, agents or representatives, or any other person harmless from any liability for
damage or claims for damage which may arise in connection with proceeding with the Entitlement
Applications prior to approval and adoption of the Development Code Update.
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6. Assumption of Risk. Developer agrees to assume any and all risks, fees, and costs
associated with proceeding with its Entitlement Applications prior to approval and adoption of the
Development Code Update.
7. Waiver and Release. Developer hereby agrees to and accepts the City's
authorization to proceed with the staff -level review and processing of the Entitlement Applications
prior to approval and adoption of the Development Code Update on the basis set forth in this
Agreement and hereby forever releases, discharges and holds the City, together with its officers,
directors, agents, employees, representatives, affiliates and attorneys and each and all of their
respective successors and assigns (collectively, the "Released Parties") free and harmless from
any and all debts, claims, demands, damages, actions, causes of action, liabilities, losses,
judgments, costs and expenses arising out of any injury or damage suffered by Developer or to its
property, caused by or alleged to have been caused directly, indirectly or consequentially by
proceeding with the Entitlement Applications prior to approval and adoption of the Development
Code Update or by any incident whatsoever in connection therewith arising in strict liability or
otherwise (individually each a "Claim," and collectively, "Claims").
8. Covenant Not to Sue. Developer covenants not to sue or otherwise bring any
action in law or equity against the City for or on account of any Claim.
9. Covenant Running Witb Land. Developer agrees that the covenants set forth
herein shall run with the land (as associated with the Entitlement Applications) herein described
and shall be binding upon its heirs, executors, assigns, administrators, and successors.
10. Partial Invalidity. If any term, covenant, condition or provision of this Agreement
is held by a court of competent jurisdiction to be invalid, void, illegal, or unenforceable, the
remainder of the provisions of this Agreement shall remain in full force and effect and shall in no
way affect, impair or invalidate any other term, covenant, condition or provision contained in this
Agreement.
11. Material Reliance by City. Developer intends to be bound by the terms of this
Agreement and acknowledges that the City is materially relying on this Agreement in allowing
Developer to proceed with staff -level review and processing of the Entitlement Applications prior
to approval and adoption of the Development Code Update.
12. Counterparts. This Agreement may be executed in counterparts, such that each
original signature submitted by a Party shall become a portion of the final original Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date first
written above.
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"CITY":
CITY OF MENIFE,E�j .'
By: AHMANDO G. VILLA
Title: CITY MANAGER
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By: /I*TT14FW MAr-- A
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680/031858-0017
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