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2021/05/24 Agreement First Amendment to Development Agreement, KB HOme Coastal Inc.Doc]rslgn Enwlope lO: FgOAAl6A-E9A0-|3EC-AEEG3€FA7C8FO88A RECORDED AT THE REQUEST OF AND WHEN RECORDED RETURN TO CITY OF MENIFEE City Hall 29844 Haun Road Menifee, CA 92586 Attn: Cig Manager DOC # 2021-0315860 0512412021 10:46 AM Fees: $0.00 Page 1 of 11 Recorded in Official Records County of Riverside Peter Aldana Assessor-County Clerk-Recorder "Thls documert was electronicaly submilted to the County ofRiverside for recording" Recaipled by TERESA #134 FIRST ATENDiIENT TO DEVELOPI'ENT AGREEMENT THIS FIRST AMENOMENT TO DEVELOPMENT AGREEMENT (this 'Flrst Amendment') is efiec,tive as of th€ 2d day ot March, 2020 (hereinafter the "Effectlve Date') by and among (i) the CITY OF MENIFEE, a Califomia dty 0h€ 'Clty), and (ii) KB HOME COASTAL lNC., a Califomia corporation ('L.ndowne/). City and Landownor are sometimes he.einafrsr colloctively refened to as ths 'Partlor' and singularly as "Party.' RECITALS A. On or about March 2, 2010, City and Landowner entercd into that certain Oevelopment Agreement, whidr was recorded on March 19, 2010, as lnstrument No. 2010-0126721, in the Ofiicial Records of Riwrsile County, Californh (the 'Devolopmont Agroemanf ); B. On March 26, 2!.20, ths City Fhanco Commi$ion held a duly noticed public hoaring and votod to rocommond extonding the term of the Devebprnent Agro€rnent betrye€n th€ City and Lendolvner and amend paynent of Developm€nt lmpec{ F€es; and C. On scptr*lr 2l 2020, the Planning Commission held a duly noticed public hearing and voted to rocommsnd extending th6 term of the D6velopmont Agr€oment bet*een the City and Lando,vner and amend peyment of Dordopm€nt lmpact F€os; and O. On Dcccrbcr 2 , 2020, th. City Council held a duly noticed public hearing and r/otod b ond tho term of tho Devebpmcnt A06ernont botw€cn the City and Landownor and arnond paymGflt of Doyclopment lmpact Foos; and -'t - (Spaco Abovo For Recorder's Use) This Firsl tunendment to Osvelopment Agregment is rocord€d at tho reque3t and ior the b€n€6t of th€ City ol i/taniho end b orompl ftom ths payment of a rBcording fee pursuanl to Govemmsnt Codo S€ctions 6103 and 27383- Oo(lisign Env€lop€ lD: F9OaA16A-E9AO-43EC-AEEG3EFATCSFOBBA Doc #2021-0315860 Page 2 of 11 E. Aft6r reviewing the Project EIR in the context of the consideration and approval of this First Amondrn€nt, th6 City Council has dotormined that none of the olemonts set forth in Public Resourcps Code Section 21166 or its implem€ntng regulations (14 Cal. Code Regs. Seclion 15162) exist and therefors has determinod, in accordance therewith, that no subsequsnl or supplemental Environmental lmpact Report or Mitigated Negative Declaratron is required to b€ prepar€d prior to adopting and approving this First Amondment. F. For purposes ofensuring the public record accurately reflec'ts the rsvised payment of D6vslopm6nt lmpact Fees and term of the Development Agrsement, City and Landowner now desirc to updato the Development Agre€mont lo amsnd the term and Dgvolopment lmpac.t Fees payment schodule. NOW, THEREFORE, in consideration of tho above Rocitals, which are incorporated hsroin by this ,aforsnco, and of th€ mutual @vonants her€inaffer contained, and for other good and valuable consi&.ation, the recoipt and sufficioncy of which is hereby acknowledged, City and Landorner a0r6€ as folbws: 1. Defin€d Terms. Capltalized torms that ars not othgrwiss defnod in this First Amendmenl shall have the meaning essigned to those terms in the Development Agreement. 2. Amendment. 2.1. Recital G. of the Develop.nent Agreoment is arnended to read: G. As used in this Agreernont, th€ term 'Clty't DIF' shall b€ defined to rnean those dewlopm€nl impact fees and exactions, induding, without limitation, dedicatbns and any o0ler fee or tax (indutling exciso, construclion or any other tax) relating to d€vebpment or the privil€ge of devebping, whicfi were in sficc{ on a Clty-wue ba3is immedlately prtcr to lho efiectlvs dat€ of Ordlnanca No. 2(n9-43. As consHeration for the Civic Site Conveyance, ln addltion to reduclions in tho City DIF accodod prior to March 2, 2020, City has agro€d that all lots withln TTM 30142 shall (i) rscoive an elghty percont (80%) rsdrction in the peyment of City's DIF that is dus and paid between March 2, 2o,z0 *d March 1, N2\ and (ii) rocaiw a ftfty porcont (5O%) r€ducliofl in tho payment of the City's DIF for teos thal are dus and paH fhom March 2, 2IJ.22 tro,'Jry,h March 1, 2025 (the brcgohg rsducibnc are collcc-tivcly rclbncd b and defin d in thic Agrccmrnt as th€ 'D.v.lopm.nt lmprct F.. Roducdonr') . A coflrdcte lbt of City'! DIF is prwidcd on Exhlblt C attadpd hercto. -2- DocuSign Envelope lDr F90BA'l6A-EgA043EC-AEE0-3EFA7C8FOB8A 2.2.Exhibit C: Exhibit C to the Development Agreement shall be replaced with the Exhibit G hereto. 2.3.Countv 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. 2.5. Section 7.2 Fees and Exactions. Section 7.2 ol lhe Developmont Agreemenl 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 lmpact 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. Prevailino Waoe lndemnitv and Notice to Landowner of Labor Code Section 1781. ln 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 othenrvise, in a call for bids or in any agreoment or othenrvise, that any work to be undertaken on the Properly and/or to be undertaken in connection wilh the development of the Prolect, 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 Pooct, 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 tho sams -3- 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. DocuSign Envelopo lO: F90BA1 6A-E9A0-43EC-AEEG3EFATC8FDBSA 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 Califomia Labor Code Section 1781 (including City's reasonable attomeys'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. lndemnification Procedures. Wherever the Development Agreement and/or this First Amendment requires Landowner to indemnify any City Party: 4.'l.Prompt Notice. City shall promptly notifo 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 Projoct 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 lmprovements (collectively, a "Claim"). 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, slate and local laws to the construction of the Project as it may be amended pursuant hereto or othenrise 4- 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. Challenqe to Enforceabilitv of Soecific Oblioations. lf a court of competent jurisdiction finds invalid or unenforceable any provision of the Development Agreement of this First Amendment that purports to supersede or otherurrise render ineffectual any federal, state, or local law, Landowner shall perform its obligations under such law or regulation (or shall perform as othenvise specifically directed by a court of competent jurisdiction), and the Development Agreemenl and this First Amendment shall othenrise 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 Aoreement. 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. Counteroarts. 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] Docusign Envelope lO: FgOBA16A-E940-43EC-AEEG3EFATC8FDBBA -5- DocuSign Envelope lO: F90BAl6A-EgA0-43EC-AEE0-3EFATCBFDBEA lN 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 Califomia ATTEST: APPROVED AS TO FORM: RUTAN & TUCKER, LLP By:C$n- Armando G. Villa, City Manager KB HOME COASTAL lNC., a California corporation By: John P. Fenn, President G ',i,l" t J -6- Sarah A. Manwaring, City Clerk az- P E- I CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT A notary public or other officer completing this certificate verifes only the identity of the individual who signed the document, to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Riverside on /llru l'. ),/ b"for" ," per$nittJ i/peared -'c\-X-who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the wlthin instrument and acknowledged to me that he/shelthey executed the same in his/he#their authorized capacity(ies), and that by his/he#the,i+ 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 PENALry OF PERJURY under the laws of the SQte of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. CTAUOIACAMORLINGA Nolrry Pubhc - Calilofid R&e6de Counly Com,nissiofl { 2223835 MyComm Expres Dec 1 2021 Claudia amo ga, Notary Public (SEAL) Claudia Camorlinoa, Notary Public, DocuSign Envelope lD: F90BA164-EgA043EC-AEE0-3EFATCBFDaBA EXHIBIT C COMPLETE LIST OF CITY'S DEVELOPMENT IMPACT FEES (REPLACTNG EXHtBtT C TO DEVELOPMENT AGREEMENT) Docusign Envelope lD: F90BA16A-E9A0-43EC-AEEO-3EFA7C8FDB8A Exhibit'C' MENIFEE DIF FEE SCHEDULE - ADOPTED DECEMBER 5, 2017 RES|DENTTA|- FEES EFFECflVE JUtY 1,2018 (pER DWETUNG UNrT) Fee outside MDP South/Encanto Drive SD zones Fee w/in MDP South zone Single Family Unit*s 7,803 S 8,83s S 10,089 Multi-Family Unitr S s,s67 S 6,137 s 5,82s Accessory Dwelling Unitr S s,sro S 4o8o 5 q,tae senior / Assisted Livingr S 3,020 S 3,s90 s 4,278 rlf subject to Quimby subtract Parks Land Acquisition Fee shown in Table E.1 below. Fee outside MDP South/Encanto SD areas Fee w/in Encanto SD Area Fee w/in MDP South Area Retail Commercial s 4,306.00 S 4G73.so S s,117.s0 Service Commercial S 3,s4s.so S 3,o7s.oo s 3,831.00 lndustrial/Business Park s 2,183.00 S 2,39s.s0 S z,6s1.so NON-RESTDENTTAT FEES EFFECTTVE lU![!.2919 (PER r,mo SF) 10096 of the Maxlmum Justlfled Fee Fee w/in MDP South Area Retail Commercial S 8,612 s gSqt S 10,23s Service Commercial s 7,(x)1 s 7,3s0 S 7,662 lndustrial/Eusiness Park s 4,366 S 4,7sr S s,303 Fee w/in Encanto Drive SD zone NON-RES|DENT|AL FEES EFFECTTVE JUtY 1, 2018-JUNE 30.2019 (PER 1,000 SFI 50% of the Maxlmum Justllled Fee Fee outside MDP South/Encanto SD areas Fee w/in Encanto SD Area DocuSign Envelope lD: F90BAl 6A-EgA0-43EC-AEEo-3EFA7C8FDBBA Figure 1: Menifee Storm Drain Fee Zones W Logcnd ! counrr Fee zone Boundories ! en."nto Drive zone Salt Creex Channel Zone No Fee Zon6 Murrigto Crack Warm Sgrinqs Valey Zona Honler3nC / Ronroland Lrne { - Zore I MDP Soulh Benefit Zone I t I J t. I a v i I I --Ii>,t t_E I N H E] :I'-:- Table E.l: Marimum Justmed Fee Su Llnd t !. hw hhccmcnt Fko Anim.l Gcncral Public Ur I Shcltcr Govcrnmcnt Facilitica Ma$r Planning PaIks. and Ncxus LibraryStorm Parks. Land Total . l,laxlmum Jultifcd o ca€ m g F.n e t! ?m t trl mtr m .'.Jo no @ Circulation Drai on lm Ana Faciliti.3 tdf/jd]f/-F€fNthtd//,[U t Sn& Fdnily lJx S mni-Ari!til Accesoy DrdrE tff sck r Assisted LnarE Ibnesti/P"nttd Der ,.0m So. Fl. CqmEcdi tutdl S ComEcd/SE*e/otco hdEtrid / 8l6iEss k F.r C!* n fc LfP Sqfi BEdt tula. Sec 4,670 $ 2,2S S 140 S316r r,258 l@ 1,878 r,fi8 nl,m 1,m 57 a1 s614S 169 152rm 320& I3S s,021 75) 532 s8 262 u2 12t s1n 560 208 151 $ 113 0 50 215 S r50 113 84 0,0s 6,825 4,768 4,278 661 487 w v51 s 66 18 34 26 58 n m SS7,736 S 1,68 S t?3 S5,9{6 5/1 lm 3,941 S7 S )s S 5$ 6 ,, s 10,235 7.662 5 303 5.5 i(.Eeqefl Arm fees Soucls:Taller 3.{.15.5.7.6.5.7.1,E.5.9.1. 10.7. ll..land 12.5. 23$ 11 12 I S