2017/12/22 Sutter Mitland 01, LLC Landscape improvements No2017-131 AGREEMENT
FOR LANDSCAPE IMPROVEMENTS
This AGREEMENT FOR LANDSCAPE IMPROVEMENTS ("Agreement") is made and
entered into as of the a'Q,. day of W, 2017, by and between the CITY OF
MENIFEE, a California municipal corporation, ("City") and SUTTER MITLAND 01 LLC, a
Delaware Limited Liability Company, ("Landowner").
WITNESSETH
1. Landowner, for and in consideration of the approval of a minor plot plan for
landscape approval and installation on that certain developi.ient plan known as "AMR Planning
Area 30 Paseo and Water Quality Basin"within Tract Map No. 36485-4 and Plot Plan No.2017-
131 (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 (Open Space Lot No. 107) 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 SEVEN
HUNDRED AND FOURTY SEVEN THOUSAND,NINE HUNDRED AND SEVENTY AND
56/100 DOLLARS ($747,970.56).
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,
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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 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.
$, 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. 36485-4 and Plot Plan No. 2017-131)
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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.
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.
1 . 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: Sutter Mitland 01 LLC
3200 Park Center Drive, Suite 1000
Costa Mesa, CA 92626
[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.
Sutter Mitland 01 LLC,
("Landowner")
Dated: ��c„ /� �0 r 7 By r'e
(Signature for President or other Category I Officer)
DGw e. �-
(Print Name)
� c,e- 51&4,,
(Title)
Dated: By lze�
(Signature for Secretary or otherx6ategory 2 Officer)
(?iicll�r:.r� T Wh�kne�
(Print Name)
(.
(Title)
CITY OF MENIFEE
("City")
A
Dated: By _
1 Cheryl Kit'er w
Communi evelopment for
Approved as to Form:
r
frey T. Melc n
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 ULt!qQ—, )
On 'bff-LYYVXC (OtU-1- , before me, M2��a,n �ir1eCLTfi ,Notary Public,
(here insert n e and title of the officer)
personally appeared G�t-e�cc tGke,�-C yV
who proved to me on the basis of satisfactory evidence to be the person(s) wh se name(s)is/are
subscribed to the within instrument, and acknowledged to me that he4he4hey executed the same in
464ief/their authorized capacity(ies), and that by hi0w4;(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]
MEAGAN KNECHT
COMM.#2117799 m
W NORANOE C
Comm.E .JUKE 29,2019
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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]
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