2017/01/18 Western Pacific Housing, Inc. Landscape Improvements PP2016-234 (6) AGREEMENT
FOR LANDSCAPE IMPROVEMENTS
This AGREEMENT FOR LANDSCAPE IMPROVEMENTS ("Agreement") is made and
entered into as of the I E-�) day of ) ' � , 2017, by and between the CITY OF
MENIFEE, a California municipal corporation, ("City") and Western Pacific Housing, Inc. a
Delaware Corporation dba D.R. Horton, America's Builder, ("Landowner").
WITNESSETH
1. Landowner, for and in consideration of the approval of a minor plot plan for
landscape approval and installation on that certain development plan known as"Retreat at Holiday
located on Chambers Avenue"Tract Map No.30507 and Plot Plan No.2016-234(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 within a basin (Lot 176) for a
period of twelve(12)months after landscaping 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 FORTY-FIVE THOUSAND EIGHT
HUNDRED FIFTY THREE AND 00/100 DOLLARS ($45,853.00).
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.
3. 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
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expert consultants or expert witnesses incurred in connection therewith and costs of investigation)
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 Tract Map No. 30507 and Plot Plan No. 2016-234) of
Landowner due to such default. The determination of City's Community Development Director
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of the question as to whether any of the terms of this Agreement or the plans and specifications
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 Community Development 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.
11. 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.
12. 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 party, and (c) by so executing this Agreement, such party 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:
To City: City of Menifee
Community Development Department
29714 Haun Road
Menifee, CA 92584
To Landowner: Western Pacific Housing, Inc. Delaware
Corporation dba D.R. Horton, America's Builder
2280 Wardlow Circle#100 Corona, CA 92880
[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.
Western Pacific Housing, Inc., a Delaware Corporation dba D.R. Horton, America's
Builder("Landowner")
Dated: By
(Signature for President or other Category 1 Officer)
m - &u tV74&lwk�
(Print Name)
(Title)
Dated: ( I B By
(Signa ure for Secre or other Category 2 Officer)
-TOM Rn K
(Print Name)
.Assrlion-� pinijed
(Title)
CITY OF MENIFEE
("City")
Dated: 2�11hBy '-�`—
eff, yman
Interim Community Development Director
Approved as to Form:
i
ffrey T. Melch' g
'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
STATE OF CALIFORNIA )
) SS.
COUNTY OF QI
On J4'V( 'j lr I !1 , before me, 111,160�111 �� �' 2 , Notary Public,
I^ (hek insert name and title of th o fice¢�
personally appeared ����1�U�`'c���1. b UrA KR I1.0 �("IT Pon ,
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 hi-s/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.
Signature N)�O" ,
[SEAL] J UV
ANGELYN GUTIERREZ
;, Commission#2060404 Z
Notary Public-California Z
Z
Z Riverside County n
y-..
My Comm. Expires Mar 8.2018
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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 CALIFORNIA )
) SS.
COUNTY OF )
On , before me, , Notary Public,
(here insert name and title of the officer)
personally appeared
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 California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
[SEAL]
2671/031858-0001
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SUBDIVISION BOND
Bond No.0204170
Western Pacific Housing, Inc., a Delaware
KNOW ALL MEN BY THESE PRESENTS,that we Corporation dba D.R. Horton,America's Builder
2280 Wardlow Circle, Suite 100, Corona, CA 92880
as Principal,and Berkley Insurance Company
authorized to do business in the State of CA ,as Surety,are held and firmly bound unto
City of Menifee
as Obligee,in the penal sum of Forty Five Thousand Eight Hundred Fifty Three Dollars and No Cents
($ 45,853.00 )DOLLARS,lawful money of
the United States of America, for the payment of which well and truly to be made, we bind ourselves, our heirs, executors,
administrators, successors and assigns,jointly and severally,firmly by these presents.
WHEREAS, Western Pacific Housing, Inc., a Delaware Corporation dba D.R. Horton,America's Builder
has agreed to construct in The Retreat at Holiday
the following improvements: Basin Landscape Improvement Plot Plan 2016-234
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION 1S SUCH, that if the said Principal shall
construct, or have constructed, the improvements herein described and shall save the Obligee harmless from any loss, cost or
damage by reason of its failure to complete said work, then this obligation shall be null and void; otherwise to remain in full
force and effect.
Signed,sealed and dated this 13th day of January , 2017
Western Pacific Housing, Inc., a Delaware
Corporation dba D.R. Horton,America's Builder
^, 1 Principal
By: I � L�•i��^-
Berkley Insurance Company
By: 3/Yl44 A AFL
Attorney-in-Fact
Margaret . Ginem
S-36891GEEF V98
Inquiries: (813) 281-2095
No. BI-7756f
POWER OF ATTORNEY
BERKLEY INSURANCE COMPANY
WILMINGTON, DELAWARE
NOTICE: The warning found elsewhere in this Power of Attorney affects the validity thereof. Please review carefully.
b KNOW ALL MEN BY THESE PRESENTS, that BERKLEY INSURANCE COMPANY (the "Company"), a corporation duly
organized and existing under the laws of the State of Delaware,having its principal office in Greenwich, CT, has made, constituted
and appointed, and does by these presents make, constitute and appoint: David H. Carr,Anett Cardinale; Margaret A. Ginem;
Eileen C. Heard; or Brandy L. Baich of Willis of Florida, Inc. of Tampa, FL its true and lawful Attorney-in-Fact, to sign its
E name as surety only as delineated below and to execute, seal, acknowledge and deliver any and all bonds and undertakings, with
= the exception of Financial Guaranty Insurance, providing that no single obligation shall exceed Fifty Million and 00/100 U.S.
Dollars (U.S.S50,000,000.00), to the same extent as if such bonds had been duly executed and acknowledged by the regularly
a elected officers of the Company at its principal office in their own proper persons.
i_
This Power of Attorney shall be construed and enforced in accordance with, and governed by, the laws of the State of Delaware,
without giving effect to the principles of conflicts of laws thereof. This Power of Attorney is granted pursuant to the following
o resolutions which were duly and validly adopted at a meeting of the Board of Directors of the Company held on January 25,2010:
yRESOLVED, that, with respect to the Surety business written by Berkley Surety Group, the Chairman of the Board,-Chief
oExecutive Officer, President or any Vice President of the Company, in conjunction with the Secretary or any Assistant
Secretary are hereby authorized to execute powers of attorney authorizing and qualifying the attorney-in-fact named therein
o to execute bonds, undertakings, recognizances, or other suretyship obligations on behalf of the Company, and to affix the
corporate seal of the Company to powers of attorney executed pursuant hereto; and said officers may remove any such
o c attorney-in-fact and revoke any power of attorney previously granted;and further
RESOLVED, that such power of attorney limits the acts of those named therein to the bonds, undertakings, recognizances,
or other suretyship obligations specifically named therein, and they have no authority to bind the Company except in the
s= manner and to the extent therein stated; and further
,2_ > RESOLVED, that such power of attorney revokes all previous powers issued on behalf of the attorney-in-fact named; and
.2 further
on RESOLVED, that the signature of any authorized officer and the seal of the Company may be affixed by facsimile to any
¢ c power of attorney or certification thereof authorizing the execution and delivery of any bond, undertaking, recognizance, or
other suretyship obligation of the Company; and such signature and seal when so used shall have the same force and effect as
though manually affixed. The Company may continue to use for the purposes herein stated the facsimile signature of any
person or persons who shall have been such officer or officers of the Company, notwithstanding the fact that they may have
°o ceased to be such at the time when such instruments shall be issued.
C71
—
IN WITNESS WHEREOF, the Company has cau edf these,presents to be signed and attested by its appropriate officers and its
o 0 corporate seal hereunto affixed this2J23rday of G"%,c�� ,2015.
Attest: Berkley Insurance Company
Ca
(Seal) By y By
0 Ira S. Lederman Je Hafter
o Senior Vice President& Secretary r V' e President
-ti o
-d :'YARNING: THIS POWER INVALID IF NOT PRINTED ON BLUE"BERKLEY"SECURITY PAPER.
._ STATE OF CONNECTICUT)
0 E ) ss:
N o COUNTY OF FAIRFIELD )
s Sworn to before me, a Notary Public in the State of Connecticut, this day of �/1�4L , 2015, by Ira S. Lederman and
Jeffrey M.Hafter who are sworn to me to be the Senior Vice President and Secretary, and the Senior Vice 3/re)ident,respectively, of
Berkley Insurance Company. MARIA C.RUNDBAKEN
c NOTARY PUBLIC
Q o MY COMMISSION EXPIRES No ary Public, State of Connecticut
APRIL 30,2019
Z CERTIFICATE
z 't I, the undersigned, Assistant Secretary of BERKLEY INSURANCE COMPANY, DO HEREBY CERTIFY that the foregoing is a
d true, correct and complete copy of the original Power of Attorney;that said Power of Attorney has not been revoked or rescinded
3 and that the authority of the Attorney-in-Fact set forth therein, who executed the bond or undertaking to which this Power of
Attorney is attached, is in full force and effect as of this date.
Given under my hand and seal of the Company,this /6 day of 20/7,
(Seal)
Andr MAT ma
ACKNOWLEDGEMENT BY SURETY
STATE OF FLORIDA
COUNTY OF HILLSBOROUGH I SS.
On this 13th day of January, 2017 before me, personally came
Margaret A. Ginem, who is personally known to me (or proved
to me on the basis of satisfactory evidence) to be the person
who executed the within Instrument as Attorney-In-Fact on
behalf of Berkley Insurance Company, and acknowledged to
me that he/she executed the within instrument on behalf of said
surety company and was duly authorized to do.
In witness whereof, I have signed and affixed my official seal on
the date in this certificate first above written.
Signature
Marianella Barnola
74,: MARIANELLA B�ARNOLA
:= Commission#FF 947761
Expires May 5,2020
P
Bonded Thru Troy Fain lneuenoe B00385-70I9
This area for Official Notarial Seal
Senate Bill 1050, amends Sections 1.1.89 and 1195. of the Civil. Code and Section 8202 of the
Government. Code, relating to notaries.public. The below physical format of the new disclosure
notice is an example, for purposes of illustration.
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.
State of California
County of RI 4e_
On"IRyauq I(PI '46Q 1 before me, &w1w 1 rez MoN Pub1 4here
insert name an title tle of officer); personally appeared I W Al. MWAKAL4, who
proved to me on the basis,of satisfactory evidence to be the persori'K whose name ishaKe subscribed to
the within instru��ts and acknowledged to me that �gshehlt� executed the. same in h/her/th�r
authorized capaci ),. and that by'his/her/>'i�eir signature on the instrument the person , or the
entity upon behalf of which the person acted, executed the instrument.
l certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct
WITNESS my nd and fficial seal.
SignatureV (Seal)
ANGELYN GUTIERREZ__.
= Commission#2060404
z ;i::�_ Notary Public-California z
z Riverside County
My Comm. Expires Mar 8,2018 .