2017/11/01 Brookfield Residential, Inc. Brookfield Residential TR36485-2 landscape improvements AGREEMENT FOR
LANDSCAPE IMPROVEMENTS
This AGREEMENT FOR LANBSCAPE IMPROVEMENTS ("Agreement") is made and
entered into as of the I day of NoV6mbet, , 2017, by and between the CITY OF
MENIFEE, a California municipal corporation, ("City") and BROOKFIELD RESIDENTIAL, a
California Corporation ("Landowner").
WITNESSETH
1. Landowner, for and in consideration of the approval of a minor plot plan to install
and maintain all landscape, including any additional landscape materials, related to Tract 36485-
2, Andalucia Way HOA-Maintained Landscape Area (and portion of described Right-of-Way as
shown on Exhibit L of Plot Plan 2017-132) on Andalucia Way, (the "Property"), agrees, at
Landowner's own cost and expense, to furnish all labor, equipment, and material necessary to
perform and complete all landscape, as it relates to the landscape and irrigation improvements,
Landowner also agrees that it shall maintain for a period of twelve(12) months after its Building
Permit has been issued 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, which are attached hereto as
Exhibit A to this Agreement. All of the Landscape 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 inspection is made by City's Community Development Director. The
estimated cost of the landscape installation and one year maintenance is TWO HUNDRED
SEVENTY-THREE THOUSAND, THREE HUNDRED FIFTY-SEVEN DOLLARS AND
SIXTY CENTS ($273,357.60).
2. Landowner agrees to pay to City the actual cost of such inspections of the
Landscape area 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 landscape area, 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
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 either the Landowner or Landowner Entities, or anyone that the
Landowner or Landowner Entities control (collectively, the"Liabilities"), in connection with the
implementation of this Agreement. Such obligation to defend, hold harmless, and indemnify any
Indemnitee shall not apply to the extent that such Liabilities are caused 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 landscape area
or determining compliance with this Agreement. This permission shall terminate in the event that
Landowner has completed the Landscape area within the time specified or any extension thereof
granted by City's Community Development Director, and upon the City's Community
Development Director's final approval of the landscaped area.
5. Landowner agrees at all times, up to the completion and written approval of the
Landscape area 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 landscape
area, 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 landscape area work.
Furthermore, Landowner shall provide City's Community Development Director with any and all
information or any other materials,deemed reasonably necessary by the Community Development
Director or its designee,to allow the City's Community Development Director or its designee the
ability to monitor, assess, and inspect the progress and manner of the landscape area work,
7. Landowner shall comply with all applicable local, state, and federal laws and
regulations applicable to the performance of the landscape area work. Landowner shall not hire
or employ any person to perform work within City or allow any person to perform the 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 and all
Landowner Entities 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
Landscape area with such diligence as to insure its completion within the specified time, or within
such extensions of time as have been, or may be, 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 TR36485-2 and/or Plot Plan 2017-
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 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.
2 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
Landscape area 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 Landscape area
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 Landscape area 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.
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 party is
formally bound to the provisions of this Agreement.
1_2 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: Brookfield Residential
3a.On' 9Qr1, CCnk-2r Dc., skz.16,0
Costa Mesa, CA 92626
[signatures on following page]
IN WITNESS WHEREOF, Landowner and City have executed this Agreement as of the
date and year first above written.
Brookfield Residential
("Landowner")
Dated: B
r l,L //(ram- <��? Y
(Signature for President or other Category 1 Officer)
(Print Name)
y:CQ-
(Title)
Dated: Qe-laGw' /k 2dr7 BY
(Signature for Secretary or other C tegory 2 Officer)
(Print Name)
C IFZ)
(Title)
CITY OF MENIFEE
("City")
Dated: i By
Cheryl Kit zero
Communit�H elopmen irector
Approved as to Form:
YZ-1
effrey T. Melchi
City Attorney
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 CkkW�,2jr-V:L before me, McA!S" p� ,Notary Public,
here insert n&he and title of the fficer)
personally appearedG{ ,
who proved to me on the basis of satisfactory evidence to be the per n(s) whose name(s)Ware
subscribed to the within instrument, and acknowledged to me that 4@4h&4they executed the same in
his,' their authorized capacity(ies), and that by hisf}tT 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]
MEAC3AN KNECHT
is �,*A
W ORAWE COUNTY +
Comb JUTE 29,2M