PC20-519RESOLUTION NO. PC20-_______
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF
MENIFEE, CALIFORNIA RECOMMENDING APPROVAL OF THE FIRST
AMENDMENT TO DEVELOPMENT AGREEMENT NO. PLN20-0075 BY
AND BETWEEN THE CITY OF MENIFEE AND KB HOME COASTAL INC
WHEREAS, the Development Agreement between the City of Menifee (“City”) and
KB Home Coastal, Inc. (“Applicant”) for the Hidden Hills residential development which
consists of 511 single-family residential lots, a 5.3 acre park, 3 detention basins totaling 2
acres, 11 acres of open space/regional trail and paseo lots, and a 3.3 acre hillside area
on an approximately 166 acre site within the City was set to expire on March 2, 2020
(“Development”); and
WHEREAS, on February 28, 2020, the Applicant filed a formal application with
the City for a first amendment to the Development Agreement (“First Amendment”) to
extend the expiration date of the Development Agreement from March 2, 2020, to March
2, 2025, and extend the allowable City Development Impact Fee (“DIF”) reductions for
the term of the Agreement; and
WHEREAS, the First Amendment does not intensify or otherwise change the
Development; and
WHEREAS, on October 26, 2004, prior to the City’s incorporation, the Board of
Supervisors of Riverside County certified that Environmental Impact Report No. 445,
which analyzed the environmental impacts that would result from the Development had
been prepared in full compliance with CEQA (the “EIR”); and
WHEREAS, on September 23, 2020, the Planning Commission, held a duly
noticed Public Hearing on the First Amendment, considered all public testimony as well
as materials in the staff report and accompanying documents, which hearing was publicly
noticed by a publication in The Press Enterprise (a newspaper of general circulation), an
agenda posting, notices placed on the Development site, and notice to property owners
within 300 feet of the Development boundaries, and to persons requesting public notice;
and
WHEREAS, the First Amendment has been prepared, processed, reviewed,
heard, and approved in accordance with applicable law, including but not limited to Section
65864 et seq. of the Government Code; and
NOW, THEREFORE, the Planning Commission of the City of Menifee resolves as
follows:
Section 1: The proposed First Amendment to the Development Agreement is consistent
with the objectives, policies, general land uses and programs specified in
the general plan and any applicable specific plan.
The General Plan land use designation of the site is 2.1-5 Residential (2.15-
R) and Open Space-Recreation. The 21.5-R designation is intended for
single-family detached and attached residences with a density range of 2 to
5 dwelling units per acre. The project is the First Amendment to a previously
approved Development Agreement for the Hidden Hills residential
development. The previous Development Agreement and the associated
tract map were found to be consistent with the underlying General Plan
designations in effect at the time the agreement and tract were originally
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approved. The current General Plan designations also allows similar
residential developments. The First Amendment to the Development
Agreement will only extend the expiration date of the agreement and the DIF
reductions for the Development, and will not alter any of the previously-
approved residential uses. Therefore, the proposed First Amendment is
consistent with the objectives, policies, general land uses, and programs
specified in the general plan and any applicable specific plan.
2. Consistency with the Zoning Code. The proposed First Amendment is compatible
with uses authorized in, and the regulations prescribed for, the zone in which the
real property will be located.
The zoning designation of the subject site is Low Density Residential – 2
(LDR-2) and Open Space-Recreation (OS-R). The project is the First
Amendment to a previously approved Development Agreement for the
Hidden Hills residential development. The previous Development Agreement
and the associated tract map were found to be consistent with the underlying
zoning designations in effect at the time the agreement and tract were
originally approved. The current zoning designation also allows similar
residential developments. The First Amendment will only extend the
expiration date of the Development Agreement and the DIF reductions for
the Development, and will not alter any of the previously-approved residential
uses. Therefore, the proposed First Amendment is compatible with uses
authorized in, and the regulations prescribed for, the zone in which the real
property is located.
3. The proposed First Amendment to the Development Agreement is in conformity
with and will promote public convenience, general welfare and good land use
practice.
The First Amendment would facilitate the construction of the Hidden Hills
Development, which includes residential and open space uses. The Development
is currently under construction and the residential uses proposed are similar to
existing development surrounding the Development site. The Development is
compatible with the surrounding land uses, general plan land use designations and
zoning classifications. The Development incorporates quality design, trails, parks,
landscaping, and other improvements which will enhance the area once
construction is complete. The proposed First Amendment does not change the
Development design or construction. It merely extends the term of the
Development Agreement and the previously-approved DIF reduction, and is
therefore in conformity with and will promote public convenience, general welfare
and good land use practice
4. The First Amendment will not create conditions materially detrimental to the public
health, safety and general welfare within the City.
The First Amendment will not result in conditions detrimental to the public health,
safety, or general welfare. The associated entitlements to the Development have
been reviewed and conditioned by the City of Menifee Community Development,
Engineering, Building and Safety, and Fire Departments to ensure that the
Development will not create conditions materially detrimental to the surrounding
uses. The associated tract map includes conditions of approval for substantial
landscaping and timing of required improvements to support the proposed
development. The Development is currently under construction and has completed
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the park and drainage improvements that will benefit the Development site and
surrounding areas.
In addition, environmental impacts resulting from the implementation of the
Development have been analyzed in a previous Environmental Impact Report
(“EIR”). The proposed First Amendment does not change the Development or
create any impacts not previously analyzed in the EIR, and therefore does not
contain any provisions that would create conditions materially detrimental to the
public health, safety and general welfare or injurious to or incompatible with other
properties or land uses in the Development vicinity and within the City.
5. Orderly Development. The First Amendment would not adversely affect the orderly
development of property and surrounding area or the preservation of property
values.
The proposed First Amendment would assist with and would not interfere with the
progress of the Hidden Hills Development. The project site has been under
construction and build out is anticipated within the term of the First Amendment.
The timing of infrastructure construction, including park construction (completed),
was carefully considered and coordinated consistent with the EIR for the
Development. The Amendment does not modify construction timing of
improvements. Therefore, the First Amendment would not adversely affect the
orderly development of the surrounding area. The proposed First Amendment
would not alter the land use designation for the site. The proposed First
Amendment would not cause the Development to conflict with surrounding existing
and planned land uses and would not have the potential to adversely affect property
values. The proposed First Amendment would continue to assist with the
implementation of the Hidden Hills Development. The improvements associated
with the Hidden Hills Development are anticipated to enhance and improve the
surrounding area and not adversely affect property values.
6. Encourage Development. The First Amendment would promote and encourage the
construction and progress of the proposed Development by providing a greater
degree of requisite certainty.
The proposed First Amendment provides assurances, such as the extension of the
expiration date of the original Development Agreement and extending of DIF
reductions for the Development, to the Applicant. Such assurances would provide
greater certainty and encourage progress of the Development as well as the
associated infrastructure, which is slated to serve the surrounding area.
7. The proposed First Amendment does not change the Development, which includes
a subdivision. Thus, any tentative map prepared for the subdivision will comply with
the provisions in Government Code Section 66473.7.
The First Amendment is associated with a previously-approved tract map that is
currently under construction. At the time the tract map was entitled, no significant
impacts occurred relating to Government Code Section 66473.7. No additional
subdivision is being proposed along with this First Amendment. Therefore, the First
Amendment complies with the provisions of Government Code Section 66473.7
8. Compliance with CEQA. Processing and approval of the First Amendment
application are in compliance with the requirements of the California Environmental
Quality Act.
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No further environmental documentation is required because: (a) all potentially
significant effects of the Development have been adequately analyzed in an earlier
Environmental Impact Report (EIR0045) adopted by the County of Riverside
pursuant to applicable legal standards; (b) all potentially significant effects of the
Development have been avoided or mitigated pursuant to that earlier EIR except
those for which a statement of overriding considerations was adopted; (c) the
proposed First Amendment will not result in any new significant environmental
effects not identified in the earlier EIR; (d) the proposed First Amendment will not
substantially increase the severity of the environmental effects identified in the
earlier EIR; (e) no considerably different mitigation measures have been identified;
and (f) no mitigation measures found infeasible have become feasible. Neither a
subsequent or supplemental EIR is required, because:
a. The proposed approval of the First Amendment contains no substantial changes
to the Development due to the involvement of new significant environmental
effects or a substantial increase in the severity of previously identified significant
effects requiring major revisions of the EIR;
b. No substantial changes have occurred with respect to the circumstances under
which the Development is undertaken requiring major revisions of the EIR;
c. There is no new information of substantial importance which was not known and
could not have been known with the exercise of reasonable diligence at the time
the EIR was certified; and
d. There are no newly feasible, or considerably different, mitigation measures or
alternatives which would substantially reduce one or more significant effects of
the Development but which the Development proponent declines to adopt.
NOW THEREFORE, the Planning Commission of the City of Menifee hereby
recommends to the City Council the following:
1. That the City Council determine that the “Findings” set forth above are true
and correct.
2. That the City Council finds that the facts presented within the public record
and within the Planning Commission Resolution provide the basis to adopt
an ordinance approving the First Amendment to Development Agreement
No. PLN20-0075 as attached to this Resolution.
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PASSED, APPROVED AND ADOPTED this the 23rd day of SEPTEMBER 2020
_________________________
Randy Madrid, Chair
Attest:
___________________________
Stephanie Roseen, Deputy City Clerk
Approved as to form:
______________________________
Thai Phan, Assistant City Attorney
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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 ______________, 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 ______________, 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 2, 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
By:_________________________
Armando G. Villa, City Manager
ATTEST:
_____________________________
Sarah Manwaring, City Clerk
APPROVED AS TO FORM:
RUTAN & TUCKER, LLP
_____________________________
Jeffrey T. Melching, City Attorney
KB HOME COASTAL INC., a California
corporation
By: ________________________
John P. Fenn, President
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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 Riverside )
On _________________________, before me, ,
(insert name and title of the officer)
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 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 California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
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 Riverside )
On _________________________, before me, ,
(insert name and title of the officer)
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 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 California that the foregoing paragraph is true and correct.
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WITNESS my hand and official seal.
Signature (Seal)
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 Riverside )
On _________________________, before me, ,
(insert name and title of the officer)
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 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 California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
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 Riverside )
On _________________________, before me, ,
(insert name and title of the officer)
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 he/she/they
DocuSign Envelope ID: CD0A4AB6-C3A2-4DED-86B7-2F52DBB53EE5
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 California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
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 Riverside )
On _________________________, before me, ,
(insert name and title of the officer)
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 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 California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
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EXHIBIT C
“Exhibit C”
Development Impact Fees 2020
1Fee includes MDP South Benefit Area
Notes:
A. Per the Quimby Agreement dated September 25, 2008, Tract No. 30142 has met its park obligations.
B. Per the Conditions Of Approval dated June 16, 2009, condition 67 and 82 the project is eligible for Traffic Signal Mitigation Fee credits for
the signals at Garbani/Murrieta and Craig/Murrieta.
C. Tract No. 30142 may be eligible for drainage credits for construction of MDP facilities as listed in Table 6.3 of the 2017 Development
Impact Fee Nexus Analysis adopted by the City of Menifee on December 6, 2017.
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STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss
CITY OF MENIFEE )
I, Stephanie Roseen, Deputy City Clerk of the City of Menifee, do hereby certify that the
foregoing Planning Commission Resolution No. PC20- was duly adopted by the Planning
Commission of the City of Menifee at a meeting thereof held on the 23rd day of
September 2020 by the following vote:
Ayes:
Noes:
Absent:
Abstain:
_______________________________
Stephanie Roseen, CMC
Deputy City Clerk
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None
None
None
519
Karwin, Phillips, Thomas, Diederich, Madrid