2017/11/15 Pardee Homes Pre-Payment for Development Impact FeesPRE-PAYMENT AGREEMENT FOR DEVELOPMENT IMPACT F'EES
TI{IS DEVELOPMENT IMPACT F'EES PRE-PAYMENT AGREEMENT
("Agreement") is executed this 15th day of November, 2017 ("Effective Date"), by and betw.een
the CITY OF MENII'EE, a California municipal corporarion ('City"), and PARDEE IIOMES,
a Califomia corporation ("Developer"). City and Developer may be referred to, individually or
collectively, as "ParW" or "Parties."
RECITALS
WHEREAS, on November 15,2017, the City Council held a duly noticed public headng
concerning the proposed adoption ofan ordinance and resolution establishing certain Development
Impact Fees ("DIFs") in accordance with the Mitigation Fee Act (Gov. Code gg 66000 et seq.),
and replacing the County of Riverside's Ordinance No. 659, wfuch initially set DIFs within the
City after the City was incorporated on October l, 2008; and
WIIEREAS, following the November | 5, 2017 public hearing, the City Council
authorized City staff to, between November 15,2017 and the effective date ofthe ordinance and
resolution establishing the DIFs, enter into DIF prepal.rnent agreements, which would allow
development applicants to pre-pay DIFs applicable to their projects at the fee rates established
pursuant to Ordinance No. 659, subject to qualifications and limitations (the ,,Prepayrnent
Motion"); and
WHEREAS, the City Council fi.rther directed in the Prepayment Motion that developers
shall only be eligible for DIF pre-payment if: (1) the amount and categories of pre-paid fees are
denonstrably consistent with existing entitlement (as shown, for example, in a tentative tract map,
tentative parcel map, plot plan, or conditional use permit), (2) such fees are paid to the City on a
non-refundable basis, (3) pre-payment ofsuch fees are otherwise permissible under and consistent
with existing agreements applicable to the development project, and (4) the prepayment offees is
made pursuant to a Pre-Payment Agreement in a form approved by the City Attomey; and
WHEREAS, on the l5th day of November,2017, an application was duly filed with rhe
City by Developer, with respect to real property described in Exhibit A, requesting approval of
Tructs 32277 -l,322'17 -2, and 32277 -3 with the application fi.rther necessitating City approval of:
A. Model Complex Precise Grade Plan
B. Model Complex, Minor Plot Plan
C. Final Site of Development, Minor Plot Plan
D. Wall and Fence Plan, Minor PIot Plan
E. Front Yard Tlpical, Minor Plot Plan
F. Architectural Construction Drawiugs
G. Building Permits
WHEREAS, the City has determined that, based on representations by Developer, at this
time Developer is eligible for DIF pre-payment pursuant to the Prepayment Motion; and
WHEREAS, the City intends by execution and delivery of this Agreement to accept the
pre-payment DIFs from Developer.
0r007.000sR66!99.1
NOW TIIEREf,'ORE, for the purposes set forth herein, and for good and valuable
considemtion, the adequacy of which is hereby acknowtedged, the Parties hereby agree as follows:
TERMS
1. Incorporation of Rccitals. The Parties hereby incorporate the Recitals as though
fully set forth herein.
2. DIF Prepayment Within twenty-four (24) hours after Effective Date, Developer
shall deliver One Million Eight Hundred Sixty-One Thousand Four Hundred Fifteen and 00/100
Dollars ($1,861,415.00) ("Prepaid DIF Amount") to the City in the form ofa cashiers' checkr or
by wire transfer date (pursuant to wire instructions given by the City to Developer). Deposit of
the Prepaid DIF Amount shatl fully satisfy Developer's obligation to pay DIF fees with regard to
Three Hundred Fifty Nine (359) Residential Units at the current rate of Five Thousand One
Hundred Eighty-Five and 00/100 Dollars ($5,185.00) per residential unit ("Prepaid Units"). DIF
Amount is determined on a per unit basis.
2.1 Excess Unit DIF Payments. Developer shall remain responsible for the
payment of DIFs for any development over and above the Prepaid Units ("Excess Units"). The
amount of DIF applicable to the Excess Units shall be the DIF rate in effect at the time DIF
payment for the Excess Units is tendered to the City.
2.2 No Right To Refund. Developer hereby agrees that the Prepaid DIF
Amount is paid to the City on a non-refundable basis. Developer waives its right to recover Prepaid
DIF Amounts from the City for any reason.
3. Discretionary. The detennination to authorize prepayment of DIFs pursuant to
this Agreement is a discretionary decision of the City. The City shalt have no obligation to enter
into additional DIF prepayment(s) agreements for this, or any other project.
4. City Release; Termination. This Agreement shall remain in effect for a period of
ten years from the Effective Date.
5.Indcmnification.
5.1 Indemnification and Hold Hamrless.
a. Non-liabilitv of Cilv. The Parties acknowledge that there may be
challenges to the legality, validity, and adequacy of this Agreement in the future; and if successful,
such challenges could delay or prevent the performance of this Agreement and the development
of the Project.
b. Participation in LitiAation: Indemdtv. Develo per agrees to
indemni$, protect, defend, and hold harmless the City and its officials, officers, employees,
agents, elected boards, commissions, departments, agencies, and instrumentalities thereof, from
any and all actions, suits, claims, demands, writs of mandamus, liabilities, Iosses, damages,
penalties, obligations, expenses, and any other actions or proceedings (whether legal, equitable,
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I See side letter of even date.
declaratory, administrative, or adjudicatory in nature), and alternative dispute resolution
procedures (including, but not limited to, arbitrations, mediations, and other such procedures)
asserted by third parties against the city that challenge, or seek to void, set aside, oi otherwise
modift or a.rurul, the action of, or any approval by, the City for or conceming this Ageemenl
(including, but not limited to, reasonable attomeys' fees and costs) (herein the "claims and
Liabilities") whether such Claims and Liabilities are arise out of under planning and zoning laws,
the Subdivision Map Act, code of civil Procedure sections 1085 or 1094.5, or any other federal,
state, or local statute, law, ordinance, rule, regulation, or any decision ofa competent jurisdiction.
In the event any action for any Claims and Liabitities are brought against the City and/or related
parties, upon city's notification to Developer ofthe pendency ofa claim or suit, Developer shall
make a minimum deposit sufficient to pay all of Developer's indemnification obligationi for the
following 90 days, which includes legal costs and fees anticipated to be incurred as reasonably
determined by the City. Developer shall make deposits required under this section within 5 days
of the city's written request. At no point during the pendency of such claim or suit, shall the
minimum balance ofthe deposit fall below fifteen thousand dollars ($15,000).
If Developer fails to timely pay such funds, the City may abandon the action without
liability to Developer and may recover from Developer any attorneys' fees and other costs for
which thc city may be liable as a result of abardonment of the action, It is expressly agreed that
the city shall have the right to utilize the city Attomey's offrce or use other Iegal counsel of its
choosing. Developer's obligation to pay the defense costs of the city shall extend until final
judgment, including any appeals. city agrees to fully cooperate u,ith Developer in the defense of
any matter in which Developer is defending andior holding the city harmless. The city may rnake
all reasonable decisions with respect to its representation in any legal proceeding, including its
inherent right to abandon or to settle any litigation brought against it in its sole and absolute
discretion.
c. Exception. The obligations ofDeveloper under this Section shall not
apply to aly claims, actions, or proceedings arising tluough the sole negligence or willful
misconduct of the City, its members, officers, or employees.
5.2 eriod of Indemnifi . The obligations for indemnity under this Section
5 shall begin upon the Effective Date and shall survive termination of this Agreement.
6. Relationship Betwccn the Partics. The parties hereby mutually agree that this
Agrcement shall not operate to create the relationship of partnership, joint venfure, or agenqy
between city and Developer. Nothing herein shall be deemed to make Developer an agent ofcity.
7. Authority to Entcr Agreemcnt. Developer hereby warrants ttrat it has the legal
capacity to enter into this Ageement. Each Party warrants that the individuals who have signed
this Agreement have the legal power, right, and authority to make this Agreement and bind iach
respective Party.
8. Notices. All notices, demands, invoices, and communications shall be in witing
and delivered to the following addresses or such other addresses as the Parties may designate by
written notice:
J
To City:City of Menifee
29714 Haun Road
Menifee, CA 92586
Attn: City Manager
Copy to:Rutan & Tucker, LLP
61 I Anton Blvd., Suite 1400
Costa Mesa, CA 92626
Attrt: Jeffiey T. Melching
To Developer:Pardee Homes
1250 Corona Pointe Cout, Suite 600
Corona CA 92879
Athr: Jeff Chambers
Copy to:Lewis, Brisbois, Bisgaard & Smith, LLP
28765 Single Oak Dr. Ste. 140
Temecula, CA 92590
Attn: Samuel C. Alhadeff
Depending upon the method of transmittal, notice shatl be deemed received as follows: by
facsimile, as of the date and time sent; by messenger, as of the date delivered; by U.S. Mail first
class postage prepaid, as of72 hours after deposit in the U.S. Mail; and by email, upon the sender's
receipt of an email from the recipient acknowledging receipt.
9. Cooperation; Further Acts. The Parties shall fully cooperate with one another,
and shall take any additional acts or sign any additional documents as may be necessary,
appropriate, or convenient to attain the purposes ofthis Agreement.
1 0. Amendment; Modification. No supplement, modification, or amendment of this
Agreement shalt be binding unless executed in wliting and signed by both Parties.
1 1. Waiver. No waiver of any default shall constitute a waiver of any other default or
breach. whether of the same or other covenant or condition. No waiver, benefit, privilege, or
service voluntarily given or performed by a Party shall give the other Party any contractual right
by custom, estoppel, or otherwise.
12. Binding Effect. Each a:rd all ofthe covenants and conditions shall be binding on
and shall inure to the benefit of the Parties, and their successors, heirs, personal representatives, or
assigns. This section shall not be construed as an authorization for any Party to assign any right or
obligation-
13. No Third Party Beneficiaries. There are no intended third party beneficiaries of
any right or obligation assumed by the Parties.
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14' Invalidify; Severability. If any portion of this Agreement is declared invalid,illegal, or otherwise unenforceable ty u
"ourt
on
"o*p.t"rrt;o.irai"Ioo, tn" remai;G;;;;".shall continue in full force and effect.
i.5: - Governing Law. This Agreement shal be construed in accordance with andgovemed by the laws of the State of Califomia.
. 16' counterparts. This-Agreement may be signed in counterparts, each ofwhich shallconstitute an original and which collectively slraU constifite one instrument.
17. . Entire Agrcement..This Agreement, along with its exhibits, contains the entireagreement between city and Deveroper and, supersedes iry prior ora o. ,*itt"n Jut",,.rts-o.agreements between city and Developer with respect to the Gect matt".
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IN wrrNEss WHEREOF, the parties hereto have executed this Agreement as of the dayand year first above written.
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ATTEST :"1 .,t 1
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EXHIBIT A
Lesal Desc riptio n of Pardee l{omes Pronerty
That certain real property situated in the City of Menifee, County ofRiverside, State of
Califomia, described as follows:
PARCEL 1 - TRACT 32277-1:
NORTHEAST QUARTER OF SECTION 12, TOWNSHIP 6 SOUTH, RANGE 3 WEST, IN
THE CITY OF MENIFEE, COL]NTY OF RIVERSIDE, STATE OF CALIFORNIA, SAN
BERNARDINO BASE AND MERIDIAN, ACCORDING TO THE RECORDED FINAL
TRACT MAP IN TIIE RIVERSIDE COUNTY ASSESSOR - COI.INTY CLERK-
RECORDERS OFFICE
PARCEL 2 -TRACT 32277-2:
NORTT{EAST QUARTER OF SECTION 12, TOWNSHIP 6 SOUTH, RANGE 3 WEST, IN
TFIE CITY OF MENIFEE, COUNTY OF RIVERSIDE, STATE OF CALIFORN]A, SAN
BERNARDINO BASE AND MEzuDIAN, ACCORDING TO THE RECORDED FINAL
TRACT MAP IN THE RTVERSIDE COLINTY ASSESSOR. COUNTY CLERK-
RECORDERS OFFICE
PARCEL 3 . TRACT 32277-3:
NORTHEAST QUARTER OF SECTTON 12, TOWNSHTP 6 SOUTH, RANGE 3 WEST, IN
THE CITY OF MENIFEE, COTJNTY OF zuVERSIDE, STATE OF CALIFORNIA, SAN
BERNARDINO BASE AND MERIDIAN, ACCORDING TO THE RECORDED FINAI
TRACT MAP IN THE RIVERSIDE COUNTY ASSESSOR - COTINTY CLERK-
RECORDERS OFFICE
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