2015/09/28 O'Reilly Auto Enterprises, LLC Landscape Improvements PP2012-056 AGREEMENT
FOR LANDSCAPE IMPROVEMENTS
This AGREEMENT FOR LANDSCAPE IMPROVEMENTS ("Agreement") is made and
entered into as of the day of jPT4)J bCr , 2015, by and between the CITY OF
MENIFEE, a California municipal corporation, ("City") and OREILLY AUTO ENTERPRISES,
LLC, a Delaware limited liability company, ("Landowner").
WITNESSETH
1. Landowner, for and in consideration of the release of final occupancy for Building
Permit No. PT 12-1275 for that certain development plan known as "Plot Plan No. 2012-056 —
O'Reilly Auto Parts" (the "Property"), agrees, at Landowner's own cost and expense, to furnish
all labor,equipment,and material necessary to perform,complete,and maintain onsite landscaping
for a period of twelve (12) months after Building Permit final or as otherwise required by City's
Community Development Director in a good and workmanlike manner, all those landscape and
irrigation improvements in accordance with those landscape and irrigation plans for the
development of said entitlement which have been approved by City's Community Development
Director, and are on file in the Office of the City of Menifee Community Development
Department, and to do all work incidental thereto in accordance with the standards set forth in
Menifee Municipal Code Chapter 9.86 and Menifee Municipal Code Chapter 15.04, which are
expressly made a part of this Agreement (the "Work"). All of the Work shall be done under the
inspection of and to the satisfaction of City's Community Development Director and shall not be
deemed complete until approval of the final planting inspection is made by City's Community
Development Director. Approval of City's Community Development Director of the Work and of
the final planting shall be in writing. The estimated cost of the Work is FIFTY THREE
THOUSAND TWO HUNDRED AND NINETY THREE $5( 3.293).
2. Landowner agrees to pay to City the actual cost of such inspections of the Work as
may be required by City's Community Development Director. Landowner and City further agree
that if suit is brought upon this Agreement or any security guaranteeing the completion of the
Work, all reasonable costs, expenses, and fees incurred by City in successfully enforcing such
obligations shall be paid by Landowner including reasonable attorneys' fees, and that upon entry
of judgment, such costs, expenses, and fees shall be taxed as costs and included in any judgment
rendered.
1. To the fullest extent permitted by law (including, without limitation, California
Civil Code Sections 2782 and 2782.6), Landowner shall defend (with legal counsel reasonably
acceptable to City), indemnify, and hold free and harmless City and City's agents, officers, and
employees, (each,an"Indemnitee")from and against any and all claims, loss,cost,damage,injury
(including,without limitation, injury to or death of Landowner or any officers, agents,employees,
representatives, or subcontractors of Landowner [collectively, the "Landowner Entities"]),
expense, and liability of every kind, nature, and description (including, without limitation,
incidental and consequential damages, court costs, attorneys' fees, litigation expenses, and fees of
expert consultants or expert witnesses incurred in connection therewith and costs of investigation)
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that arise out of, pertain to, or relate to, directly or indirectly, in whole or in part, the negligence,
recklessness, or willful misconduct of Landowner, any of the Landowner Entities,anyone directly
or indirectly employed by any of them,or anyone that they control (collectively,the"Liabilities"),
with regard to the Work described in this Agreement. Such obligation to defend, hold harmless,
and indemnify any Indemnitee shall not apply to the extent that such Liabilities are caused in part
by the sole negligence or willful misconduct of such Indemnitee.
4. Landowner hereby grants to City, and to any agent or employee of City, the
irrevocable permission to enter upon the Property for the purpose of inspecting the Work or
determining compliance with this Agreement. This permission shall terminate in the event that
Landowner has completed the Work within the time specified or any extension thereof granted by
City's Community Development Director.
5. Landowner agrees at all times, up to the completion and written approval of the
Work by City's Community Development Director, to give good and adequate warning to the
traveling public of each and every dangerous condition caused by the Work, and to protect the
traveling public from such defective or dangerous conditions.
6. Landowner, or its agents and employees, shall give notice to City's Community
Development Director at least forty-eight(48)hours before beginning the Work and shall furnish
City's Community Development Director all reasonable facilities for obtaining full information
respecting the progress and manner of the Work.
7. Landowner shall comply with all applicable local, state, and federal laws and
regulations applicable to the performance of the Work. Landowner shall not hire or employ any
person to perform work within City or allow any person to perform the Work required under this
Agreement unless such person is properly documented and legally entitled to be employed within
the United States. Any and all work subject to prevailing wages, as determined by the Director of
Industrial Relations of the State of California, will be the minimum paid to all laborers, including
Landowner employees,contractors, and subcontractors. It is understood that it is the responsibility
of Landowner to determine the correct scale. The State Prevailing Wage Rates may be obtained
from the California Department of Industrial Relations ("DIR") pursuant to California Public
Utilities Code, Sections 465, 466, and 467 by calling 415-703-4774. Appropriate records
demonstrating compliance with such requirement shall be maintained in a safe and secure location
at all times, and readily available at City's request. Landowner shall obtain and maintain a City
of Menifee business license. Landowner shall require the same of all contractors and
subcontractors.
8. If Landowner, or its agents or employees,neglects, refuses,or fails to prosecute the
Work with such diligence as to insure its completion within the specified time, or within such
extensions of time as have been granted by City's Community Development Director, or if
Landowner violates,neglects, refuses,or fails to perform satisfactorily any of the provisions of the
plans and specifications,Landowner shall be in default of this Agreement and notice in writing of
such default may be served upon Landowner. City's Community Development Director shall have
the power to terminate all rights (granted by Plot Plan No. 2013-210 or Plot Plan No. 2015-132)
of Landowner due to such default. The determination of City's Community Development Director
of the question as to whether any of the terms of this Agreement or the plans and specifications
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have been violated or have not been performed satisfactorily shall be conclusive upon Landowner,
and any and all parties who may have any interest in this Agreement or any portion thereof. No
delay or omission in the exercise of any right or remedy by City shall impair such right or remedy
or be construed as a waiver. City's consent or waiver of one act or omission by Landowner shall
not be deemed to constitute a consent or waiver of City's rights with respect to any subsequent act
or omission by Landowner. Any waiver of any default shall be in writing. The foregoing
provisions of this Section shall be in addition to all rights and remedies available to City under
law.
9. Prior to the date this Agreement is executed, Landowner agrees to file with City
good and sufficient security as provided in subsections (1), (2), and (3) of subdivision (a) of
Section 66499 of the Government Code in any amount not less than the estimated cost of the Work
for the faithful performance of the terms and conditions of this Agreement, except that when the
estimated cost of said work is$2,500 or less,the security shall be a deposit of cash or its equivalent
as determined acceptable by City's Building Director. Landowner further agrees that if the
security is a bond and if the sureties on the faithful performance bond or the amount of said bonds
in the opinion of City's Community Development Director becomes insufficient, Landowner
agrees to renew each and every bond or bonds with good and sufficient sureties or increase the
amount of said bonds, or both, within ten (10) days after being notified by City's Community
Development Director that the sureties or amounts are insufficient. Notwithstanding any other
provision herein, if Landowner fails to take such action as is necessary to comply with said notice,
Landowner shall be in default of this Agreement unless all required work is completed within
ninety (90) days of the date on which City's Community Development Director notifies
Landowner of the insufficiency of the sureties or the amount of the bonds or both.
10. It is further agreed by and between the parties hereto, including the surety or
sureties on the bonds or the issuers of any instruments or letters of credit securing this Agreement,
that,in the event it is deemed necessary to extend the time of completion of the Work contemplated
to be done under this Agreement, extensions of time may be granted from time to time by City's
Community Development Director either at his/her option or upon request of Landowner,and such
extensions shall in no way affect the validity of this Agreement or release the surety or sureties on
said bonds. Landowner further agrees to maintain the aforesaid bond or bonds or the issuance of
any instruments or letters of credit in full force and effect during the term of this Agreement,
including any extensions of time as may be granted thereon.
L 1. Upon the satisfactory completion and written approval of the Work by City's
Community Development Director, the entire amount of the security shall be released or returned
by City to Landowner.
d2. This Agreement shall be binding upon Landowner and its heirs, executors,
administrators, successors, or assigns, all and each both jointly and severally.
13. With the exception of the specific provisions set forth in this Agreement,there are
no intended third-party beneficiaries under this Agreement and no such other third parties shall
have any rights or obligations hereunder.
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14. It is understood and agreed by the parties hereto that if any part,term, or provision
of this Agreement is held to be unlawful and void, the validity of the remaining portions shall not
be affected and the rights and obligations of the parties shall be construed and enforced as if this
Agreement did not contain the particular part,term, or provision held to be invalid. No waiver of
any term or condition of this Agreement shall be a continuing waiver thereof.
15. This Agreement may be executed in multiple counterparts, each of which shall be
an original and all of which together shall constitute one agreement.
16. Landowner shall not discriminate in any way, against any person on the basis of
race, color, religious creed, national origin, ancestry, sex, age, physical handicap, medical
condition or marital status in connection with or related to the performance of this Agreement.
17. The laws of the State of California shall govern this agreement. In the event of
litigation between the parties, venue in state trial courts shall lie exclusively in the County of
Riverside,California. In the event of litigation in a U.S.District Court,venue shall lie exclusively
in the Central District of California, in Los Angeles.
18. The person(s)executing this Agreement on behalf of the parties hereto warrant that
(a) such party is duly organized and existing, (b) they are duly authorized to execute and deliver
this Agreement on behalf of said parry, and (c) by so executing this Agreement, such parry is
formally bound to the provisions of this Agreement.
19. Any notice or notices required or permitted to be given pursuant to this Agreement
shall be served on the other party by mail,postage prepaid, at the following addresses:
City of Menifee
Community Development Department
To City: 29714 Haun Road
Menifee, CA 92584
O'Reilly Auto Enterprises, LLC
To Landowner: 233 S. Patterson
Springfield, MO 65802
[signatures on following page]
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IN WITNESS WHEREOF, Landowner and City have executed this Agreement as of the
date and year first above written.
(("Land
6 Dated: Cf 15 IS' By
(Signature for President or other Category 1 Officer)
SCA 9�i�AA�s
(Print Name)
VI Csi�YP�I r�Rvt,�
(Title)
41,&114
Dated: / Z / ' By
,p�uupq (S for Secretary or o tegory 2 Officer)
�j G �/,bwp��
w SEAL fi;a c (Print Name)
a'. O; 2014
'/'''�����►►.... ``` (Title)
CITY OF MENIFEE
("City")
Dated: By
obert A. B dy
terim Community evelopment Director
Approved as to Form:
r�elc ing
City Attorney
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A notary public or other officer completing this certificate
verifies 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.
ACKNOWLEDGMENT
OA 1554�
STATE OF C-Mn- 3A )
SS.
COUNTY OF CYIlRAA-0-- )
On � ,before me, PJA an - J / ,1—,Notary Public,
(her i ert Fe and title of the g
personally appeared cr� k�'du5+ CQ \WR4n'�L@ .�l`
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument,and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their 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 PENALTY OF PERJURY under the laws of the State of �s that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signal
ELIZRBF.TH A.DUGGER
[SE � Nowrf f jo1ic,state of Mlssour
Gn:isdan County
«r Came slion xt4398753
My ommissiur ms.rare 25,2018
2465/031858A006
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A notary public or other officer completing this certificate
verifies 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.
ACKNOWLEDGMENT
STATE OF� )
ss.
COUNTYOF
On c�I 5&�n) - e3p i before me, (&ALC 1 MO &I Notary Public,
(� (here insert name and title�f!j the officer)
personally appeared T�j p Ll- c1`54 2� f lea oov. 2 cS2P/[Aa .c!
who proved to me on the basis of satisfactory evidence to be the persons) whose name(s is/are
subscribed to the within instrument, and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their 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 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.
MINDI MoCOY
Notary SSTAIEP MISotary SOURI Signature
Christian
[SEA ?Ay Com"I"m E4,, J 24,2018
C.Ot111i1(f1tOf1 it 39
24651031858-0006
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PERFORMANCE BOND Bond#106357902
KNOW ALL BY THESE PRESENTS,That we, O'Reilly Auto Enterprises, LLC
233 S. Patterson Springfield.MO 65802
(hereinafter called the Principal),as Principal,and Travelers Casualty and Surety Company of America ,a corporation
duly organized under the laws of the State of Connecticut (hereinafter called the Surety),as Surety,are held and firmly
bound unto City of Menifee,Community Development Department
29714 Haun Road Menifee,CA 92586 ,(hereinafter called the Obligee),
in the sum of Fifty Three Thousand Two Hundred Ninety Three Dollars and No/100s
($ 53,293.00 )Dollars,for the payment of which sum well and truly
to be made, we, the said Principal and the said Surety, bind ourselves, our heirs, executors, administrators,successors and assigns,
jointly and severally,firmly by these presents.
Signed and sealed this 1st day of September 2015
WHEREAS,said Principal has entered into a written Contract with said Obligee,dated
for Landscaping
in accordance with the terms and conditions of said Contract,which is hereby referred to and made a part hereof as if fully set forth
herein:
NOW,THEREFORE,THE CONDITION OF THIS OBLIGATION IS SUCH,That if the above bounden Principal shall well and truly
keep,do and perform each and every, all and singular, the matters and things in said contract set forth and specified to be by said
Principal kept, done and performed, at the times and in the manner in said contract specified, or shalt pay over, make good and
reimburse to the above named Obligee,all loss and damage which said Obligee may sustain by reason of failure or default on the part
of said Principal so to do, then this obligation shall be null and void; otherwise shall remain in full force and effect.
NO SUIT, ACTION OR PROCEEDING by the Obligee to recover on this bond shall be sustained unless the same be commenced
within two(2)years following the date on which Principal ceased work on said Contract.
III O'Reilly Auto Enterpri es,LLC
Principal
By
Travelers Casualty and Surety Company of America
13Y71ASR ►.1-MES&&k
Tara W.Mealer Attorney-in-Fact
5 0757/GE 10199
XnP
WARNING:THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER
,01k POWER OF ATTORNEY j
TRAVELERSJ Farmington Casualty Company St.Paul Mercury Insurance Company
Fidelity and Guaranty Insurance Company Travelers Casualty and Surety Company
Fidelity and Guaranty Insurance Underwriters,Inc. Travelers Casualty and Surety Company of America
St.Paul Fire and Marine Insurance Company United States Fidelity and Guaranty Company
St.Paul Guardian Insurance Company
Attorney-In Fact No. 228538 Certificate No. 006238861
KNOW ALL MEN BY THESE PRESENTS: That Farmington Casualty Company,St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance
Company,St.Paul Mercury Insurance Company,Travelers Casualty and Surety Company,Travelers Casualty and Surety Company of America,and United States
Fidelity and Guaranty Company are corporations duly organized under the laws of the State of Connecticut,that Fidelity and Guaranty Insurance Company is a
corporation duly organized under the laws of the State of Iowa,and that Fidelity and Guaranty Insurance Underwriters,Inc.,is a corporation duly organized under the
laws of the State of Wisconsin(herein collectively called the"Companies"),and that the Companies do hereby make,constitute and appoint
Carolyn E.Wheeler,Novella M. Anderson,Loretta M.Jones,Mary Y.Volmar,Sandra Ward,Vicki Nobinger, Kellie A.Turner,Tara W.Mealer,and
Joy M.Williams
of the City of Knoxville ,State of Tennessee ,their true and lawful Attorney(s)-in-Fact,
each in their separate capacity if more than one is named above,to sign,execute,seal and acknowledge any and all bonds,recognizances,conditional undertakings and
other writings obligatory in the nature thereof on behalf of the Companies in their business of guaranteeing the fidelity of persons,guaranteeing the performance of
contracts and executing or guaranteeing bonds and undertakings required or permitted in any actions or.proceedings allowed by law.
t .
4t IN WITNESS WHEREOF,the Companies have caused this instmmenGtd"be ognewdand theidcorporate seals to be hereto affixed,this 17th
day of February 2015 55+ s,"�`
Farmington Casualty Company St.Paul Mercury Insurance Company
Fidelity and Guaranty`Insurance Company, 1Yavelers Casualty and Surety Company
Fidelity and Guaranty Insurance Underwriters,Inc. Travelers Casualty and Surety Company of America
St.Paul Fire and Marine Insurance Company United States Fidelity and Guaranty Company
St.Paul Guardian Insurance Company
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State of Connecticut By:
City of Hartford Ss. Robert L.Raney, enior Vice President
On this the 171h day of February 2015 before me personally appeared Robert L.Raney,who acknowledged himself to
be the Senior Vice President of Farmington Casualty Company, Fidelity and Guaranty Insurance Company,Fidelity and Guaranty Insurance Underwriters,Inc.,St.Paul
Fire and Marine Insurance Company,St.Paul Guardian Insurance Company,St.Paul Mercury Insurance Company,Travelers Casualty and Surety Company,Travelers
Casualty and Surety Company of America,and United States Fidelity and Guaranty Company,and that he,as such,being authorized so to do,executed the foregoing
instrument for the purposes therein contained by signing on behalf of the corporations by himself as a duly authorized officer.
In Witness Whereof,I hereunto set my hand and official seal. '
My Commission expires the 30th day of June,2016. #' p� 1p t vladc C lan-null.Vuwry PLIblic
58440-8-12 Printed in U.S.A.
WARNING:THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER
CALIFORNIA ALL-PURPOSE
CERTIFICATE OF ACKNOWLEDGMENT
State of Tennessee
County of Knox
On September 1, 2015 before me. Kellie A.Turner
(Here insert name and title of the officer)
personally appeared Tara W. Mealer
who proved to me on the basis of satisfactory evidence to be the person(s)whose name(s)is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity ties), and that by his/her/their 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 PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph
is true and correct.
`�. A. TV
WITNESS my hand and official seal. srATE
OF
y�✓,�r �� �� = TENNEBBEE
/`./�/vN. A � / _ NOTARY —
Al PUBnc
(Notary Seal) '
Signaure tNotaryPublic Kellie A.Turner
Commission Expires:2-1-2018
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