2014/07/16 D.R. Horton Los Angeles Holding Company, Inc. Facility Improvements for Development Impact Fee CreditPROJECT AGREEMENT
FACILITY IMPROVEMENTS
FOR DEVELOPMENT IMPACT FEE CREDIT/REIMBURSEMENT
THIS PROJECT AGREEMENT (this "Agreement"), entered into this 161h day of July,
2014, between the City of Menifee, a California municipal corporation, hereinafter referred to as
the "City," and D.R. Horton Los Angeles Holding Company, Inc., hereinafter referred to as the
"Developer."
RECITALS
WHEREAS, Developer presently owns a property, which has received development
approval from the County for Tract 28206, as shown in Exhibit A which is attached hereto and
incorporated herein (the "Property"); and
WHEREAS, as a condition of development of the Property, the Developer is required to
construct, contribute to or dedicate right of way for improvements and traffic signal installation
at Antelope Road and Garbani Road (the "Project"), as shown and described in Exhibit B which
is attached hereto and incorporated herein, to partially mitigate identified impacts resulting from
the residential development of the Property; and
WHEREAS, upon incorporation of the City of Menifee on October 1, 2008, the City of
Menifee adopted County Ordinance No. 659.7 establishing development impact fees
(respectively, the "Ordinance" and the "Developer Impact Fee") to be paid at the time a
certificate of occupancy is issued or upon final inspection, whichever occurs first within the City;
and
WHEREAS, Section 17 of the Ordinance provides general conditions under which a
credit against all or a portion of the Developer Impact Fee may earned; and
WHEREAS, components of the Developer Impact Fee include stated dollar amounts to
be utilized for acquisition of right of way, installation of traffic signalization and traffic control
signalization, respectively within the Sun City/Menifee Area Plan of the County of Riverside
("County"); and
WHEREAS, the City of Menifee incorporated on October 1, 2008 and assumed
administrative responsibilities for Sun City/Menifee Area Plan DIF within City boundaries; and
WHEREAS, the Developer and the City have negotiated that the Developer is eligible to
receive a fee credit for the actual cost of the project, but not to exceed maximum allowable
budget which is estimated to be approximately $311,500 as shown and described in Exhibit C
which is attached hereto and incorporated herein to Developer's construction of the Project; and
WHEREAS, the Developer and the City desire to enter into this Agreement to provide for
the Developer to pay to the City, the actual cost of the intersection signalization and the
acquisition of right of way for the project in return for fee credit to be earned by the Developer,
Mosaic Development— D.R. Horton, Tract 28206
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and the manner in which the fee credit is to be applied against the Development Impact Fee to be
paid by the Developer upon the development of the Property;
WHEREAS, this project is deemed eligible for fee credit or reimbursement based on the
criteria set out in Ordinance No. 659, Ordinance No. 748, and subsequent polices developed by
the City of Menifee.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration and the mutual promises
contained herein, it is agreed as follows:
Section 1. Purpose of the A reement: Following payment to the City in the amount
of $311,500 and execution of this Agreement, the Developer shall be relieved of the condition to
construct the intersection signalization and acquisition of adjacent right of way at Antelope Road
and Garbani Road. Upon acceptance of the payment of $311,500 by the City, the Developer will
have earned a fee credit in the dollar amount above consistent with the provisions of this
Agreement that is to be applied against the Development Impact Fee to be paid for the
development of the Property.
Section 2. Definitions: Unless otherwise specifically defined in this Agreement, all
terms will have the meaning ascribed to them by the Ordinance.
Section 3. Representations, Warranties and Covenants of the Developer: The
Developer makes the following representations, warranties and covenants for the benefit of the
City, as of the date hereof and as of the date of the Payment Request is delivered to the City
hereunder:
(a) Organization. The Developer represents and warrants that the Developer
is a limited partnership duly organized and validly existing under the laws of the State of
California, is in good standing under the laws of the State, and has the power and
authority to own its properties and assets and to carry on its business as now being
conducted and as now contemplated.
(b) Authority. The Developer represents and warrants that the Developer has
the power and authority to enter into this Agreement, and has taken all action necessary
to cause this Agreement to be executed and delivered, and this Agreement has been duly
and validly executed and delivered on behalf of the Developer.
(c) Binding Obligation. The Developer represents and warrants that this
Agreement is a valid and binding obligation of the Developer and is enforceable against
the Developer in accordance with its terms, subject to bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors' rights in
general and by general equity principles.
Section 5. Representations, Warranties and Covenants of City: City make the
following representations, warranties and covenants for the benefit of the Developer:
Mosaic Development D.R. Horton, Tract 28206
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(a) Authority. City represents and warrants that City has the power and
authority to enter into this Agreement, and has taken all action necessary to cause this
Agreement to be executed and delivered, and this Agreement has been duly and validly
executed and delivered on behalf of City.
(b) Binding Obligation. City represents and warrants that this Agreement is a
valid and blinding obligation of City and is enforceable against City in accordance with
its terms, subject to bankruptcy, insolvency, reorganization or other similar laws affecting
the enforcement of creditors' rights in general and by general equity principles.
(c) Com letion of the Improvements. The City covenants that it will use its
reasonable and diligent efforts to take expeditiously all actions that may be lawfully
required of it in issuing permits, processing and approving plans and specifications and
inspecting the Project in accordance with this Agreement.
Section 4. Indemnification: The Developer agrees to protect, indemnify, defend and
hold the City, and its respective officers, employees and agents, and each of them, harmless from
and against any and all claims, losses, expenses, suits, actions, decrees, judgments, awards,
attorney's fees, and court costs which the City, or its respective officers, employees and agents,
or any combination thereof, may suffer or which may be sought against or recovered or obtained
from the City, or its respective officers, employees or agents, or any combination thereof, as a
result of or by reason of or arising out of or in consequence of (a) the acquisition, construction,
or installation of the Project, (b) the untruth or inaccuracy of any representation or warranty
made by the Developer in this Agreement or in any certifications delivered by the Developer
hereunder, or (c) any act or omission of the Developer or any of its subcontractors, or their
respective officers, employees or agents, in connection with the Project. If the Developer fails to
do so, the City shall have the right, but not the obligation, to defend the same and charge all of
the direct or incidental costs of such defense, including any attorneys fees or court costs, to and
recover the same from the Developer. The parties acknowledge and agree that the Developer
shall be released from the indemnity obligation set forth herein upon the expiration of the
performance bond as described in Section 5(e).
Section 5. Other Agreements: Nothing contained herein shall be construed as
affecting the City's or the Developer's respective duty to perform its respective obligations under
other agreements, land use regulations or subdivision requirements relating to the development
of the Property, which obligations are and shall remain independent of the Developer's rights
and obligations, and the City's rights and obligations, under this Agreement; provided, however,
that the Developer shall use its reasonable and diligent efforts to perform each and every
covenant to be performed by it under any lien or encumbrance, instrument, declaration,
covenant, condition, restriction, license, order, or other agreement, the nonperformance of which
could reasonably be expected to materially and adversely affect the acquisition, construction and
installation of the Project.
Section 6. Entire Agreement. This Agreement contains the entire agreement
between the parties with respect to the matters herein provided for.
Mosaic Development— D.R. Horton, Tract 28206
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Section 7. Bindine on Successors and Assigns: Neither this Agreement nor the
duties and obligations of the Developer hereunder may be assigned to any person or legal entity
other than an affiliate of the Developer without the written consent of the City, which consent
shall not be unreasonably withheld or delayed. Neither this Agreement nor the duties and
obligations of the City hereunder may be assigned to any person or legal entity, without the
written consent of the Developer, which consent shall not be unreasonably withheld or delayed.
The agreements and covenants included herein shall be binding on and inure to the benefit of any
partners, permitted assigns, and successors -in -interest of the parties hereto.
Section 8. Amendments: This Agreement can only be amended by an instrument in
writing executed and delivered by the City and the Developer.
Section 9. Waivers: No waiver of, or consent with respect to, any provision of this
Agreement by a party hereto shall in any event be effective unless the same shall be in writing
and signed by such party, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which it was given.
Section 10. No Third Party Beneiliciaries: No person or entity, other than the City,
shall be deemed to be a third party beneficiary hereof, and nothing in this Agreement (either
express or implied) is intended to confer upon any person or entity, other than the City and the
Developer (and their respective successors and assigns), any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
Section 11. Notices: Any written notice, statement, demand, consent, approval,
authorization, offer, designation, request or other communication to be given hereunder shall be
given to the party entitled thereto at its address set forth below, or at such other address as such
party may provide to the other party in writing from time to time, namely:
DEVELOPER
D.R. Horton Los Angeles Holding Company, Inc.
2280 Wardlow Circle, Suite 100
Corona, CA 92880
Tel: (951) 739-5444
Email: DBoyd@drhorton.com
CITY
City of Menifee
29714 Haun Road
Menifee, CA 92586
Tele: (951) 672-6777
Email: jsmith@cityofinenifee.us
Each such notice, statement, demand, consent, approval, authorization, offer, designation,
request or other communication hereunder shall be deemed delivered to the party to whom it is
addressed (a) if personally served or delivered, upon delivery, (b) if given by electronic
communication, whether by telex, telegram or telecopy, upon the sender's receipt of an
appropriate answerback or other written acknowledgment, (c) if given by registered or certified
mail, return receipt requested, deposited with the United States mail postage prepaid, 72 hours
after such notice is deposited with the United States mail, (d) if given by overnight courier, with
courier charges prepaid, 24 hours after delivery to said overnight courier, or (e) if given by any
other means, upon delivery at the address specified in this Section.
Section 12. Jurisdiction and Venue: Each of the City and the Developer (a) agrees
that any suit action or other legal proceeding arising out of or relating to this Agreement shall be
Mosaic Development— D.R. Horton, Tract 28206
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brought in state or local court in the County of Riverside or in the Courts of the United States of
America in the district in which said City is located, (b) consents to the jurisdiction of each such
court in any suit, action or proceeding, and (c) waives any objection that it may have to the
laying of venue or any suit, action or proceeding in any of such courts and any claim that any
such suit, action or proceeding has been brought in an inconvenient forum. Each of the City and
the Developer agrees that a final and non -appealable judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any
other manner provided by law.
Section 13. Attorneys' Fees: If any action is instituted to interpret or enforce any of
the provisions of this Agreement, the party prevailing in such action shall be entitled to recover
from the other party thereto reasonable attorney's fees and costs of such suit (including both
prejudgment and post judgment fees and costs) as determined by the court as part of the
judgment.
Section 14. Governing Law: This Agreement and any dispute arising hereunder shall
be governed by and interpreted in accordance with the laws of the State of California.
Section 15. Usaee of Words: As used herein, the singular of any word includes the
plural, and terms in the masculine gender shall include the feminine.
Section 16. Interpretation. The parties to this Joint Community Funding Agreement
and their counsel have reviewed and revised this Joint Community Facilities Agreement, and the
normal rule of construction to the effect that any ambiguities in an agreement are to be resolved
against the drafting parties shall not be employed in the interpretation of this Joint Community
Facilities Agreement.
Section 17. Counterparts: This Agreement may be executed in counterparts, each of
which shall be deemed an original.
IN WITNESS HEREOF, the parties hereto have executed the Project Agreement to be
effective on the day and year first above written.
CITY OF M , IF
, i r
By:
Mayor, Menifee City Council
ATTEST:
Kathy Bennett, City Clerk
r-,
By: mg
City Clerk
Mosaic Development— D.R. Horton, Tract 28206
5
D.R. HORTON LOS ANGELES HOLDING
COMPANY, INC.
Approval as to Form:
Julie Biggs
City Attorney
By:
y Attorney
Mosaic Development D.R. Horton, Tract 28206
TRACT MAP 28
McKinley
Blue -Topped
Flnlshed Lots
Beazer
EXHIBIT A
Site Map
[Horton will complete northern portion " 2
street} of Oarban€ Road, along with the LIVID
landscaping and trail, along Tract 28206-1
ontana {krill install under Watra SIA/bond)
[Horton shall complete detention pas€n
improvements prior to occupancy of t'10°h
(per prior documentation, no bonds are
required to be Dosted)
Morton shall bond for In -tract improvements (Streets.
water. sewer) for Tract 28206-1 as required by City
1. 4 U .{w F
>. x.
li ETract2a206-3
ocumentation. will be
prior to 140th building
s part of Tract 28206-F or
7
iorton will complete western portion
1/2 street) of Palomar Road, along
dth the LIVID landscaping, along Tract
!820i'-1 frontage (will Install under
Mosaic Development D.R. Horton, Tract 28206
7
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EXHIBIT C
Fee Credit Estimate
Estimated budget to purchase right of way and construct and install
traffic signalization at the corner of Antelope Road and Garbani Road in
Menifee, CA
Conditions of Approval Cost
1. Traffic Si nalization 3-way)$165.000
2. Traffic Control for Si nalization $22,000
3. Right of Way A uisition $91._5.00
IFee Obligation/Construction Sub-
rotal $311,500
DIF Credit to be
assigned to the
Developer by the
following:
DIF Credit
Cost
1. Mosaic Tract
$77,776
2. Mahogany Tract
$233,72
Total DIF Credit
$311,50
Mosaic Development D.R. Horton, Tract 28206
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