2017/07/18 Commerce Pointe II Menifee, Inc. Landscape Improvement Agreement LANDSCAPE IMPROVEMENT AGREEMENT
This AGREEMENT FOR LANDSCAPE IMPROVEMENTS ("Agreement") is made and
entered into as of the �_ day of jv)y , 2017, by and between the CITY OF
MENIFEE, a California municipal corporation, ("City") and COMMERCE POINTE II
MENIFEE, a California corporation ("Landowner" and "Developer").
WITNESSETH
1. Landowner and Developer, for and in consideration of the approval of a minor plot
plan for landscape approval and installation on that certain development plan known as
"Commerce Pointe 11" Planning Case No. 2009-006 (Entitlement Case) and Plot Plan No. 2016-
231(Landscape and Irrigation Plan) located south of Scott Road, north of Keller Road, east of
Zeiders Road and west of Bailey Park Boulevard, APN: 384-180-044 (the "Property"), agree, at
Landowner and Developer'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 FOUR HUNDRED SIXTY-EIGHT THOUSAND SIX HUNDRED
THIRTY-SIX DOLLARS AND THIRTY CENTS ($468 636 30)
2. Landowner and Developer agree 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/or
Developer 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 and/or Developer 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. Landowner's and Developer rights and
obligations under this provision are separate, and can be enforced by the City against either party.
3. To the fullest extent permitted by law (including, without limitation, California
Civil Code Sections 2782 and 2782.6), Landowner and Developer 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 Developer or
any officers, agents, employees, representatives, or subcontractors of Landowner or Developer
[collectively, the "Landowner and Developer 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 or Developer, any of the Landowner and Developer 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 and Developer hereby grant 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 and Developer have completed the Work within the time specified or any extension
thereof granted by City's Community Development Director.
5. Landowner and Developer agree 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 and Developer, or their 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 and Developer shall comply with all applicable local, state, and federal
laws and regulations applicable to the performance of the Work. Landowner and Developer 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 and Developer employees, contractors, and
subcontractors. It is understood that it is the responsibility of Landowner and Developer 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 Developer shall obtain and maintain a City of Menifee business
license. Landowner and Developer shall require the same of all contractors and subcontractors.
8. If Landowner or Developer, or their 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 or Developer violates, neglects, refuses, or fails to perform satisfactorily any of
the provisions of the plans and specifications, Landowner and Developer shall be in default of this
Agreement and notice in writing of such default may be served upon Landowner and Developer.
City's Community Development Director shall have the power to terminate all rights (granted by
Plot Plan 2016-231)of Landowner and Developer 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 Developer, 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 or Developer shall not be
deemed to constitute a consent or waiver of City's rights with respect to any subsequent act or
omission by Landowner or Developer. 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 and Developer agree 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 and Developer
further agree 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 and Developer agree 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 and Developer fail to take
such action as is necessary to comply with said notice, Landowner and Developer 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 and Developer 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 or
Developer, and such extensions shall in no way affect the validity of this Agreement or release the
surety or sureties on said bonds. Landowner and Developer further agree 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 or Developer.
12. This Agreement shall be binding upon Landowner and Developer and their 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 and Developer 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/ Commerce Pointe II Menifee, Inc
Developer: 2815 Townsgate Road, Suite 133
Westlake, CA 91361
[Signatures on following page]
IN WITNESS WHEREOF, Landowner, Developer, and City have executed this Agreement as of
the date and year first above written.
Commerce Pointe. If (v(eni(ce. Inc
(`Landowner/Deve10per!
By: Washington Capital Management, Inc.
Dated: a Washington corporation
Its: Manager/Authorized Agent
.i
j
I`
By:
L
Name: CC�fl i Cffi�C
Title:
Dated:
--i__r-- - By: Washington Capital Management, Inc.
a Washington corporation
Its: Manager/Authorized Agent
Name:
Patrick S. IN11allc:v
Title:
CITY QI iMENIFIEl
Dated: � L ---- By
f Cheryl l<iterow
Cmm11tunitv Dcve a ment DirecLor
Approved as to I"orm:
l
cl'frey'I'. \�lelcl�in ,
City Attorn'v
Commerce Pointe II Menifee, Inc
("Landowner/Developer")
Dated: 7 - 5-- 17 By: Washington Capital Management, Inc.
a Washington corporation
Its: Manager/A 4horized Agent
By:
Name: Gkzt,�5oc
Title: QSr1 ��1 Cet7
Dated: 7 �� /7
By: Washington Capital Management, Inc.
a Washington corporation
Its: Manager/Authorized Agent
By:
Name: trick alley
Title: Senior i President
CITY OF MENIFEE
("City")
Dated: By
Cheryl Kitzerow
Community Development Director
Approved as to Form:
Jeffrey T. Melching
City Attorney
STATE OF WASHINGTON
COUNTY OF KING
On this day personally appeared before me Patrick S. Malley,to me known to be the individual
described in and who executed the within and foregoing instrument, and acknowledged that he
signed the same as his free and voluntary act and deed, for the uses and purposes therein
mentioned.
Given under my hand and seal of office this-LL��day of I , 2017.
Notary�ublic residing at LQ-�-
Printed Name: �- D— . �� r C(5 FNOTARYPUBLIC
SA K. PARGAS
TE OF WASHW,'T(W
My Commission Expires: MMISSION EXPIRES
q-15-I 09-15-18
STATE OF WASHINGTON
COUNTY OF KING
On this day personally appeared before me Cory A. Carlson,to me known to be the individual
described in and who executed the within and foregoing instrument, and acknowledged that he
signed the same as his free and voluntary act and deed,for the uses and purposes therein
mentioned.
Given under my hand and seal of office this day of 2017.
LISA K. PARGAS
STATE OF WASHINGTON
J NOTARY PUBLIC
Notary Public residing at 1 r- MY COMMISSION EXPIRES
Printed Name: I�v !� �U rc�a 5 09-15-18
My Commission Expires:
15--1 C