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Agreement No. 24-33-103-00
RAILWAY CROSSING AGREEMENT
BETWEEN THE CITY OF MENIFEE, RIVERSIDE COUNTY TRANSPORTATION COMMISSION, AND KB HOME COASTAL INC.
This RAILWAY CROSSING AGREEMENT BETWEEN THE CITY OF MENIFEE,
RIVERSIDE COUNTY TRANSPORTATION COMMISSION, AND KB HOME COASTAL INC. ( “Railway Crossing Agreement ”) is entered into as of ___________, 2024 ( “Effective Date”), by and between the CITY OF MENIFEE, a California municipal c orporation (“City”), RIVERSIDE COUNTY TRANSPORTATION COMMISSION ( “RCTC”), and KB HOME
COASTAL INC
., a California corporation (“KB Home”). The City, RCTC, and KB Home may be referred to herein individually as a “Party,” or collectively as the “Parties.”
RECITALS
A. The existing railway right-of-way and associated improvement s, depicted in Exhibit “A,” attached hereto and incorporated herein by reference, is owned, and controlled by RCTC and traverses a portion of the City (“Railway”). The Railway within the City is maintained by and not currently in use by RCTC or any other person or enti ty. While the Railway is not currently active, it is certified with the U.S. Department of T ransportation Federal Railroad Administration and identified as Railway Crossing 027358A and C alifornia Public Utility Commission Crossing Number 002X-24.50.
B. KB Home desires to make short-term modifications to a rail crossing that traverses the Railway (“Railway Crossing”) and has submitted plans for such short-term modifications (“Short-term Railway Crossing Modifications ”) to the County of Riverside and the City (“Plans”). The Short -term Railway Crossing Modification Plans are attached hereto a s Exhibit “B” and are incorporated herein by reference. The Short-term Rail way Crossing Modification Plans have been approved by the County of Riverside and the City.
C. RCTC desires to preserve its rights to use, enhance, and impr ove the Railway right- of-way in the future, including potentially extending commuter and/or freight rail service through the City. In the event RCTC desires to use the Railway in the future, long-term modifications to the Railway Crossing will be necessary (“Railway Crossing Improvement Project”).
D. The Parties acknowledge and ag ree that the estimated cost of the Railway Crossing Improvement Project is Four Hundred Fifty Thousand Dollars ($450,000).
E. KB Home has agreed to deposit with RCTC funds in the amount of Four Hundred Fifty Thousand Dollars ($450,000) for the Railway Crossing Impr ovement Project as part of the consideration for this Agreement, and as required by RCTC, all as further detailed herein. 2774/031858-0006
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F. The Parties now desire to enter into this Railway Crossing A greement to set forth their mutual understanding and agreement with respect to the Sh ort-term Railway Crossing Modifications and the potential future Railway Crossing Improve ment Project, if such Railway Crossing Improvement is determined by RCTC to be necessary as a result of future use of the Railway.
AGREEMENT
NOW, THEREFORE, based upon the foregoing Recitals, which are in corporated herein by this reference, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
1. KB Home Agreements.
1.1 KB Home deposited the sum of Four Hundred Fifty Thousand Dollar s ($450,000) (“Railroad Improvement Funds”) with RCTC for the Railway Crossing Improvement Project.
RCTC agrees that the maximum contribution of funding by KB Home under this Railway Crossing Agreement shall be $450,000. This Section 1.1 does not prohibit RCTC from seeking grant funding for the Railway Crossing Improvement Project
1.2 Upon receipt of final approvals, including, without limitation, an accepted and approved GO-88 application submitted to the California Public U tility Commission (CPUC) by the City, KB Home hereby agrees to construct the Short-term Rai lway Crossing Modifications pursuant to the Plans in Exhibit “B,” which have been approved by the County of Riverside and by the City. Execution of this Railway Crossing Agreement constitutes RCTC approval of Plans as set for in Exhibit “B,” provided that any changes in the Plans as shown in Exhibit “B” shall be reviewed and approved by RCTC in writing and in its sole and ab solute discretion. Parties will work cooperatively to achieve plan approval within 30 days of execution of this Railway Crossing Agreement. KB Home shall cons truct the Short-term Railway Crossing Modifications within 60 days of approval of Plans, traffic control plans and issuance of the Right of Entry permit.
2. RCTC Agreements.
2.1 RCTC shall retain the Railroad Improvement Funds in the amou nt of Four Hundred Fifty Thousand Dollars ($450,000).
2.2 If RCTC determines in its sole and absolute discretion that the cost of the Railway Crossing Improvement Project will be less than Four Hundred Fifty Thousand Dollars ($450,000), RCTC shall present for payment the remainder of the Railroad Im provement Funds to KB Home following RCTC’s written notice to KB Homes that it has fully completed the Railway Crossing Improvement Project for a cost of less than $450,000.
2.3 In the event that RCTC determines in its sole and absolute disc retion the Railway Crossing Improvement Project is unnecessary, RCTC shall inform KB Homes in writing within a reasonable period of time that the Railway Crossing Improvement Project is unnecessary and RCTC shall present for payment the entirety of the Railroad Impr ovement Funds to KB Home within ten (10) business days of receipt of such notice from RCTC. 2774/031858-0006
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2.4 RCTC shall use reasonable, good f aith efforts, in its sole and absolute discretion, to require future applicants/developers of projects that RCTC a nticipates, in its sole and absolute discretion, will impact or benefit from Right of Entries within the Railway Crossing Improvement Project, to contribute a fair share fee toward the cost of the Right of Entry for the Railway Crossing Improvement Project in the event the Railway Crossing Improvement Project becomes necessary. (a) In the event fair share fees are collected from future applican ts/developers prior to implementation of the Railway Crossing Improvement Project, such fair share fees shall be contributed by future applicants/developers in the form of cash deposits, submitted to RCTC prior to issuance of a Right of Entry and shall be reta ined by RCTC for the purpose of implementing the Railway Crossing Improvement Project. In the event RCTC collects any such cash deposits from future applicants/develope rs, RCTC shall, within a reasonable period of time following receipt of any such cash deposits, notify KB Home of the amount collected and allow KB Home the opportunity to reduc e the then-existing Railroad Improvement Funds by the amount collected.
(b) In the event future fair share fees for Right of Entries wit hin the Railway Crossing Improvement Project are collected by RCTC from future applicants/developers following design and construction of the Railway Crossing Impro vement Project, all fair share fees collected for the Railway Crossing Improvement Proje ct shall be collected by RCTC and dispersed to KB Home within a reasonable period of time following collection of such fees.
2.5 In the event RCTC collects fair share fees for Right of Entries within the Railway Crossing Improvement Project and RCTC provides written notice a pproved by the RCTC Board of Directors, in its sole and absolute discretion, that RCTC ha s abandoned the Railway Crossing Improvement Project, RCTC shall present for payment the Railroa d Improvement Funds to KB Home and any other cash deposits from other applicants/develope rs collected for the purpose of the Railway Crossing Improvement Project within thirty (30) bus iness days of written notice by RCTC to KB Homes stating RCTC’s unequivocal intent to abandon the Railway Crossing Improvement Project.
2.6 RCTC hereby agrees to review and process the Right of Entry in accordance with its standard policy and timeframe, to allow KB Home to design a nd construct the Short-term Railway Crossing Modifications pursuant to the Plans in Exhibit “B,” which have been approved by the County of Riverside and by the City.
3. Indemnification and Release.
3.1 KB Home shall indemnify, defend, and hold harmless the City, an d its officers, officials, employees, agents, representatives, contractors, successors and assigns (collectively, the “City Indemnitees”) from and against any and all claims, demands, causes of action, obligations, setoffs, liabilities, losses, injuries and damages of any kind or nature whatsoever, whether known or unknown, suspected or unsuspected, foreseen or unforeseen, l iquidated or unliquidated (collectively, “Claims”) that may be asserted or claimed by any person or entity arisi ng in any way out of the City ’s activities under this Railway Crossing Agreement, whether or not there is concurrent passive negligence on the part of City Indemnitees, but excluding such Claims to the 2774/031858-0006
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extent they arise from the active negligence or willful misconduct of a City Indemnitees or the acts of independent third parties. KB Home shall indemnify, defend and hold harmless RCTC, and its officers, officials, employees, agents, representatives, contra ctors, successors and assigns (collectively, the “RCTC Indemnitees”) from and against any and all Claims that may be asserted or claimed by any person or entity arising in any way out of RCTC’s activities under this Railway Crossing Agreement, whether or not there is concurrent passive negligence on the part of RCTC Indemnitees, but excluding such Claims to the extent they arise from the active negligence or willful misconduct of a RCTC Indemnitees or the acts of independent third parties.
3.2 City shall indemnify, defend and hold harmless KB Home, and its officers, officials, employees, agents, representatives, contractors, suc cessors and assigns (collectively, “KB Home Indemnitees”) from and against any and all Claims that may be asserted or c laimed by any person or entity arising in any way out of the City’s activities under this Railway Crossing Agreement, whether or not there is concurrent passive negligence on the part of City Indemnitees, but excluding such Claims to the extent they arise from the active negligence or willful misconduct of City Indemnitee or the acts of independent third parties. City shall indemnify, defend and hold harmless RCTC Indemnitees from and against any and all Claims that may be asserted or claimed by any person or entity arising in any way out of the City’s activities under this Railway Crossing Agreement, whether or not there is concurrent passive negligence on the part of City Indemnitees, but excluding such Claims to the extent they arise from the active negligence or willful misconduct of City Indemnitees or the acts of independent third parties.
4. Miscellaneous
4.1 Notices. All notices, transmittals of documentation and other writings required or permitted to be delivered or transmitted to either of the parti es under this Railway Crossing Agreement shall be personally served or deposited in a United S tates mail depository, first class postage prepaid, and addressed as follows:
If to the City: City of Menifee
29844 Haun Road
Menifee, CA 92586
If to RCTC: Riverside County Transportation Commission
4080 Lemon Street, Third Floor
Riverside, CA 92501
If to KB Home: KB Home Coastal Inc.
Attn: Vernell Williams
36310 Inland Valley Drive, Suite 300
Wildomar, CA 92595
or such other addresses any Party may direct to the other Parti es in writing. All such notices and communications shall be deemed to have been duly given when del ivered by hand, if personally delivered. Except where service is by registered or certified mail, return receipt requested, service of any instrument or writing shall be deemed completed forty-eight (48) hours after deposit in the United States mail depository.
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4.2 Assignment. During the term of this Railway Crossing Agreement , any of the Party’s rights and obligations may be assigned, transferred, or other wise conveyed to any third party upon notice to the Parties, on condition that such assign ee or transferee agrees in writing to assume all of the obligations and requirements of the Party und er this Railway Crossing Agreement.
4.3 No Third Party Beneficiaries. Nothing expressed or mentioned i n this Railway Crossing Agreement is intended or shall be construed to give an y person, other than the Parties hereto and their respective authorized successors and assigns, any legal or equitable right, remedy or claim under or in respect to this Railway Crossing Agreement or any of the provisions contained herein. This Railway Crossing Agreement and each and every condition and provision hereof are intended to be for the sole and exclusive benefit of the Partie s and their respective authorized successors and assigns, and for the benefit of no other person or entity.
4.4 Governing Law. This Railway Crossing Agreement shall be govern ed by and construed in accordance with the laws of the State of Californi a applicable to agreements made and to be performed within the State.
4.5 Waiver; Remedies. No failure on the part of any Party hereto t o insist upon or demand the strict performance by any other Party of any covenan t, term, condition or promise of this Railway Crossing Agreement, or to exercise any right or re medy as a result of any breach of the Railway Crossing Agreement, shall constitute a continuing w aiver of any such breach or of any such covenant, term, condition, promise, right or remedy. No waiver of any breach shall in any way affect, alter, or modify this Railway Crossing Agreemen t, but each and every covenant, term, condition and promise of this Railway Crossing Agreement shall continue in full force and effect. No single or partial exercise of any right, remedy, po wer, or privilege under this Railway Crossing Agreement shall preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege under this Railway Crossing Agreement.
4.6 Status of the Parties. Nothing in this Railway Crossing Agreem ent shall be construed to make the Parties joint venturers or partners, or to create any relationship of principal and agent, and the Parties specifically disavow such relationships.
4.7 Interpretation. This Railway Crossing Agreement has been negot iated at arms ’ length between persons sophisticated and knowledgeable in the m atters addressed herein, and all Parties have had the opportunity to consult with legal counsel of each Party’s choosing regarding this Railway Crossing Agreement. Accordingly, any rule of law (including California Civil Code § 1654) or legal decision that would require interpretation of t his Railway Crossing Agreement against the drafter hereof is not applicable and is waived.
4.8 Entire Agreement. This Railway Crossing Agreement is intended by the Parties as a final expression of their agreement and is intended to be a c omplete and exclusive statement of the agreement and understanding of the Parties hereto with respect to the subject matter contained herein. There are no restrictions, promises, warranties, or un dertakings relating to the subject matter of this Railway Crossing Agreement, other than those set forth or referred to herein. 2774/031858-0006
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4.9 Warranty of Authority. Each officer of the Parties affixing hi s or her signature below thereby warrants and represents that he or she has the lu ll legal authority to bind his or her respective party to all of the terms, conditions and provisions of this Railway Crossing Agreement; that his or her respective party has the full legal right, powe r, capacity and authority to enter into this Railway Crossing Agreement and perform all the obligations herein; and that no other approvals or consents are necessary in connection therewith.
4.10 Modifications. Neither this Railway Crossing Agreement nor any provision hereof may be changed, waived, discharged, or terminated orally or in writing, except that any provision of this Railway Crossing Agreement may be amended by a writing signed by Parties.
4.11 Headings. The headings in this Railway Crossing Agreement are for convenience of reference only, and shall not limit or otherwise affect the meaning of this Railway Crossing Agreement.
4.12 Successors and Assigns. Subject to Section 5.2 above, this Rai lway Crossing Agreement shall inure to the benefit of, and be binding upon th e Parties and their respective successors and assigns.
4.13 Exhibits. This Railway Crossing Agreement contains exhibits, attached hereto and made a part hereof by this reference. Said exhibits are identified as follows:
A. Location of Railway
B. Short-term Railway Crossing Modifications Plans
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IN WITNESS
WHEREOF, the Parties hereto have entered into this Railway Crossing Agreement as of the date first written above.
CITY OF MENIFEE,
a California municipal corporation
By:
Armando G. Villa, City Manager
ATTEST:
Stephanie Roseen, Acting City Clerk
APPROVED AS TO FORM:
RUTAN & TUCKER, LLP
Jeffrey Melching, City Attorney, City of Menifee
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RIVERSIDE COUNTY TRANSPORTATION
COMMISSION
By:
APPROVED AS TO FORM:
By:
Best Best & Krieger LLP
Counsel to the Riverside County
Transportation Commission
KB HOME COASTAL, INC.,
a California Corporation
By: _____________________________________
Vernell Williams, Director, Forward Planning
ROVVVVEDEDDEDEDDDEDEDEDDDDEDEDEDDDDEEDEDDEEDEEEDDDEDEDDEDDDEEDDDDDDEEEDDDDEDDDD AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAS TOTOOTOTOTOTOOOTOTOTOTOTOOOTOTOOOTOOTOOTOTOOOOOOTOOOTOTOTOOTOOTTOTOOTTTTTTTTTTTTTTTTTTTTTT FFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFOROROROROROOROOROROOOROOOROOOROOOOROOOROOOORROORRORORRROORRROORRORRROOOORRORRROOOOROOOOOOOOOOOOOO M:MMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMM Williams, Vernell
Digitally signed by Williams, Vernell
DN: CN="Williams, Vernell", OU=PSync, OU=Office,
OU=Users, OU=Wildomar, OU=Southern-California,
OU=Pacific, DC=kbhc, DC=corp, DC=kbhome, DC=com
Reason: I am approving this document
Date: 2024.07.05 15:28:19-07'00'
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Exhibit A
Railway Location
105 ft
100 ft
10 ft
10 ft
Map Version 2 Date: 5/20/2021
Document Path: C:\Users\KelseyKaszas\OneDrive - Epic Land Solutions Inc\GIS\Projects\RCTC\Exhibit Map\KB_Homes_ROE.mxd
EXHIBIT 'A'
APN 331-250-004 & 331-280-002
Menifee, CA
²0 50 10025
Feet
KB Homes Right-of-Entry
RCTC R/W
This map was created using the best data available at the time of production. Epic Land Solutions Inc. assumes no responsibility for the accuracy of third party information. This map is intended for data visualization only and should not serve as the basis for any legal action or be used for engineering purposes.
Epic Land Solutions, Inc.
331-250-004
331-280-002
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Exhibit B
Plans for Short-term Railway Crossing