Loading...
2020/12/01 Pulte Home Company, LLC Lindenberger Road Closure for Menifee Village Project Tracts 32102-1 and 32102-FDEPOSIT AND REIMBURSEMENT AGREEMENT Relating To: Lindenberger Road Closure for Menifee Village project Trac{s 32102-l and 32102-F _ This Deposit and Reimbursement Agreement (this ,,Agreement,,), dated as ofDecember 1, 2o2o, is made by and between the city of Menifee (t-he "city")'and pulte HomeCompany, LLC (the "Developer"). BACKGROUND The Developer has requested that the City allow the Developer to close down theentirety of Lindenberger Road to make off-site improvements ("lmprovements,,) related to itsdevelopment of rracts 32102-1 and 32102-F ("project"), as conditioned and approved by thePlanning commission of the City of Menifee on September 23, 2015. B. The Developer is willing to advance funds to the city to allow the city to repaveand/or repair/restore Lindenberger Road and chaparral Road (;Repairs") in tho event theDeveloper .fails to adequately improve the roads as conditioned in Reiolution pcls-232, abandons the Project or lmprovements, or the roads are otherwise left in a manner not meetingthe Grading Regulations contained in chapter 8.26 of the Menifee Municipal code by thEestimated completion of the replacement of Lindenberger Road as conditioned or by anotherdate as agreed to in writing by both the Developer and the City. _ c. The city and the Developer now desire to specify the terms of the advances offunds and reimbursement. AGREEMENT ln consideration of the mutual promises and covenants set forth herein, and for othervaluable consideration, the receipt and sufficiency of which are hereby acknowledged, the cityand the Developer agree as follows: 1. Advances. The Developer hereby agrees to make the following deposit for thepayment of City Costs. (a) Deposit of Citv Costs. Developer hereby agrees to deposit with the Cityan amount of Five Hundred and Twenty-Seven Thousand Dollars ($527,000) (the"Deposit"), in the form of cash or a check payable to the City, to be used by the City topay out of pocket City Costs (as defined below) related to the Repairs. The Developer shall deliver this amount to the city within five (5) business days after the execution of this Agreement As used in this Agreement, "out of pocket City Costs" means all costs incurred by the City in connection with the due diligence review necessary for consideration of searching for and selecting a contractor, negotiation, execution and consideration of the any agreement necessary, and the actual costs of repaving, fixing, and/or otherwise restoring Lindenberger Road to a usable condition as existed prior to Developer's closure of the road, including without limitation the following: ,| (i) the fees and expenses of any consultants to the City engaged by theCity in connection with the Repairs (such as legal couniel jnJ financial advisors); (ii) the costs of evaluations, studies and other reports necessary ordeemed advisable by City staff in connection with the Repairsi (iii) costs of publication of notices, preparation and mailing of noticesrelating to processing of all entitlements; or (iv) any and all other actual costs and expenses incurred by the City withrespecl to the construction, fixes, or repaving for the Repairs or the regulatory agreements. (b) The Deposit may be commingled with other funds of the City for purposes of investment and safekeeping, but the city shall at all times maintain recbrds as to thereceipt and expenditure of the Deposits. 2. credit or Reimbursement. The city shall not be obligated to advance any of itsown funds to pay City Costs. The City shall credit or reimburse the Developer for the Deposit made under this Agreement under the following conditions: (a) lf the City chooses not to initiate Repairs based upon the determination that no Repairs are required, such remaining Deposit shall be reimbursed to Developer within thirty (30) days after such determination if all costs required to be reimbursed orpaid have been fully paid; (b) lf the City chooses to initiate but not to complete the Repairs, any Deposit amount remaining shall be reimbursed to the Developer within thirty (30) days after such determination if all costs required to be reimbursed or paid have been fuily paid; (c) lf the City chooses to complete the Repairs, within thirty (30) days after completion of the Repairs any Deposit amount remaining shall be reimbursed to the Developer if all costs required to be reimbursed or paid have been fully paid; 3. Reimbursem ent of Other Developer Costs The Deposit shall not be used for reimbursement of other costs and expenses of the Developer other than the Repairs. 4. No Liabilitv for Abandonment of Proceedinos. The Developer acknowledges and agrees that initiation of the Repairs is at the sole discretion of the City. lf the City determinesthat the Repairs are necessary, prior to initiating the Repairs, the city shall provide written notice to the Developer and the City may only commence the Repairs if the Developer fails to complete the Repairs within thirty (30) days after receipt of written notice of such breach from the City; provided, however, that if the Repairs are not capable of being cured within such thirty(30) day period, no default shall be deemed to have occurred and the right of the City to commence the Repairs shall not commence provided the Developer commences to the Repairs within such thirty (30) day period and thereafter diligently and continuously prosecutes same to completion. No provision of this Agreement shall be construed as an agreement, promise or warranty of the City to initiate or complete the Repairs. The City shall have no liability under this Agreement, except as expressly stated herein, other than to return the full amount of the Deposit if the Repairs are not initiated within thirty (30) days after the determination not to 2 hitiate the Repairs or to return the balance of the Deposit for any actions taken in pursuit of theRepairs within thirty (30) days after completion of the Repairs. 5. Deoosit Aqreement Not Debt: Limitation of Liabilitv. This Agreement does notconslitute a debt or liability of the City. No member of the city council and no officer, employee,or agent of the City shall to any extent be personally liable hereunder. 6. lndemniflcation. The Developer hereby agrees to assume the defense of,indemnify and hold harmless the city, and each of its members, officers, employees, andagenls, from and against all actions, claims, or proceedings of every type and description towhich they or any of them may be subjected or put, by reason of, or to the extent arising out of,any acts or omissions of the Developer or any of rts members, officers, employees, coniractors,or agents in connection with the Repairs. The city shall promptly notify the Developer of any such claim, action, or proceeding, and the city shall cooperate in the defense thereof. The obligations of the Developer under this section 6 shall not apply to any claims, actions, orproceedings arising through the gross negligence or willful misconduct of the City, its members, officers, employees, or agents. Developer shall indemnify, hold harmless, and defend the City, its agents, officers, andemployees from any claim, action, proceeding, damages, costs, or liabilities against the city, itsagents, officers, or employees arising out of the actions taken by the city with respect to theRepairs. Further, Developer shall indemnify, hold harmless and defend the city, its agents, officers, and employees from any claim, action, proceeding, damages, or liabilitiei that miy bebrought by any person, entity, or group against the City, its agents, officers, or employees arising out of the action, inaction or negligence of the City, its agents, officers, employees in connection with this Agreement and/or that of Developer, its employees, officers, agents, contractors, subcontractors, successors or assigns in planning, engineering, constructing, or inany manner carrying out the Repairs. 7. Severabilitv. lf any part of this Agreement is held to be illegal or unenforceable bya court of competent jurisdiction, the remainder of this Agreement shall be given effect to the fullest extent reasonably possible. 8. Successors and Assiqns. This Agreement shall be binding upon and inure to thebenefit of the successors and assigns of the parties hereto. This Agreement may not be assigned by either of the parties thereto, except with the written agreement of all parties hereto. 9. Waiver. Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other party, or the failure by a party to exercise its rights upon the default of the other party, shall not constitute a waiver of such party's right to insist and demand strict compliance by the other party with the terms of this Agreement thereafter. 10. Amendments. Amendments to this Agreement shall be made only by written instrument executed by each of the parties hereto- 11. Notices. Any notice or demand pursuant to this Agreement shall be given in writing by (a) personal delivery, (b) reputable overnight delivery service with proof of delivery, (c) United States Mail, postage prepaid, registered or certified mail, return receipt requested, or (d) electronic mail sent to the intended addressee at the address set forth below, or to such other address or to the attention of such other person as the addressee shall have designated by written notice sent in accordance herewith. Notice sent by facsimile is not a valid means of 3 notice under this section 1'1. Unless changed in accordance with the preceding provisions, theaddresses for notices given pursuant to this Agreement shall be as follows: To the City: Any notice or communication shall be deemed to have been given and received on the earliest of the following: (i) on the date of transmission, if delivered by electronic mail transmission on orbefore 5:00 p.m., Pacific Time, on a business day, provided that written notice by one of theother approved methods of delivery is sent on the same day; (ii) on the next business day after transmission, if delivered by electronic mail transmission after 5:oo p.m., pacific Time, or on asaturday, Sunday or california state holiday, provided that written notice by one of the otherapproved methods of delivery is sent on the same day; (iii) on the date of d'elivery (or the first business day thereafter if delivered on a saturday, sunday or california state holiday), if hand d_elivered or sent by overnight courier, with a written acknowledgement of receipt; oi (iv; 6ree(3) business days after the date of mailing, if sent by registered or certified maii, return ieceiptrequested, postage prepaid. Notices given by legal counsel for any party hereto shall constitute notice from that party. ln order to expedite the transaction contemplated herein, signatures sentin a pdf document via email may be used in place of original signatures on this Agreement orany document delivered pursuanl hereto. The city and the Developer intend to be bound by the signatures on the pdf document, are aware that the other party will rely on such signaturesj andhereby waive any defenses to the enforcement of the terms of this Agreement based on theform of signature. City of Menifee 29844 Haun Road Menifee, CA 92586 Attention: Armando G. Villa, City Manager To the Developer: Pulte Home Company, LLC 27401 Los Altos, Suite 400 Mission Viejo, CA 9269'1 Attention: Steven J. Ford 12. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original. 13. Venue. Any action brought pursuant to this Agreement shall be subject to California law and venue shall be appropriate in the County of Riverside, California. S'GIVATURES ON NEXT PAGE 4 lN wrNEss WHEREOF, the parties have executed this Agreement as of the day andyear first-above written. CITY OF MENIFEE By: Name Title: ILLA PULTE limited li By: IIYMA NAG E FI HOME COMPANY , LLC, a Michigan compan OARREN WARRENName: Title:Ltno 5 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the documenl to which this certificate is attached, and not the truthfulness, accuracy, or validi of that document State of California County of ORANGE ) on DECEMBER 1,2020 before me, CRESIDA DIAZ, NOTARY PUBLIC (insert name and title of the officer) personally appeared DARREN WARREN who proved to me on the basis of satisfactory evidence to be the person(e) whose name(e) is/are subscribed to the within instrument and acknowledged to me that he/sh€lthey executed the same in his/he#the+r authorized capacity(res), and that by his/heCthe,i+ signature(€+on the instrument the personS), or the entity upon behalf of which the person(e) 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 CNESIDA DIAZ NotaryPublic California OranqeCounty Commielion 122.12345 MyComm. trpire! Feb 25,2022 Signature Z--z )(Seal)