2020/11/24 New Cingular Wireless PCS, LLC Landscape Agreement CUP 2019-016 APN 472-010-010AGREEMENT
FOR LANDSCAPE IMPROVEMENTS
This AGREEMENT FOR LANDSCAPE IMPROVEMENTS ("Agreement") is made and
entered into as of the Z\n* day of Nlrrr",.b.., ,2020, by and among the CITY OF
MENIFEE, a California municipal corporation, ("City"), Eastem Municipal Water District, a
public agency of the State of California (oolandowner"), and New Cingular Wireless PCS, LLC, a
Delaware limited liability company ("AT&T").
WITNESSETH
L AT&T for and in consideration of the approval of a minor plot plan for landscape
approval and installation on that certain development plan known as "AT&T CLS00345, EMWD"
(Conditional Use Permit No. 2019-016) located at 30245 Scott Road, Menifee, CA, APN: 472-
010-010 (the "Property"), agree, at AT&T's own cost and expense, to fumish all labor, equipment,
and material necessary to perform, complete, and install, 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 9.195 and Menifee Municipal Code Chapter 15.04,
which are expressly made apartof this Agreement (the "Work"). The estimated cost of the Work
is Fourteen Thousand Eisht Hundred Eieht Dollars ($14.808.00). Landowner agrees, at
Landowner's own cost and expense, to furnish all labor, equipment, and material necessary to
maintain the AT&T installed landscape and irrigation improvements as described in this paragraph
("Landscape Maintenance") for a period of twelve (12) months after Building Permit final in a
good and workmanlike manner. All of the Work and Landscape Maintenance shall be done under
the inspection of and to the reasonable satisfaction of City's Community Development Director in
accordance with the approved landscape and inigation plans, and shall not be deemed complete
until approval of the final planting inspection is made in writing by City's Community
Development Director, and such approval not to be unreasonably withheld, conditioned or delayed.
L Landowner or AT&T agrees to pay to City the actual cost of such inspections of
the Work as may be required by City's Community Development Director. AT&T and City agree
that if suit is brought upon 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 AT&T including reasonable attomeys' fees, and that ifjudgment is entered against AT&T, such
costs, expenses, and fees shall be taxed as costs and included in any judgment rendered.
L To the fullest extent permitted by law (including, without limitation, California
Civil Code Sections 2782 and 2782.6), AT&T shall defend (with legal counsel reasonably
acceptable to City), indemnif,,, 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 AT&T or any officers, agents, employees,
representatives, or subcontractors of AT&T (the "AT&T 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 or willful misconduct of AT&T, any
of the AT&T 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 AT&T hereby grant to City, and to any agent or employee of City,
upon not less than forry-eight (48) hours prior notice, the 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 AT&T has completed the Work within the time
specified or any extension thereof granted by City's Community Development Director.
5- AT&T 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.
L AT&T, 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, upon City's request, information respecting the
progress and manner of the Work.
L AT&T shall comply with all applicable local, state, and federal laws and regulations
applicable to the performance of the Work. AT&T 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 Califomia, 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 Caiifornia 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. AT&T shall obtain and maintain a City of Menifee business
license. Landowner shall require the same of all contractors and subcontractors.
& If AT&T, 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 AT&T
violates, refuses, or fails to perform satisfactorily any of the provisions of the plans and
specifications and fails to correct such violation, refusal, or failure within thirty (30) days after
receipt of notice of such violation, refusal, or failure from City, AT&T shall be in default of this
Agreement and notice in writing of such default may be served upon AT&T, provided however, if
the nature of the default is such that more than thirty (30) days is required to cure such default,
then no such default will be deemed to exist if AT&T has commenced to cure such default within
such thirty (30) day period and prosecutes such cure to completion with reasonable diligence.
City's Community Development Director shall have the power to terminate all rights of AT&T
under this Agreement due to such default. The determination of City's Community Development
Director of the question as to whether the Work and Landscape Maintenance have been performed
satisfactorily in accordance with the City-approved landscape and irrigation plans and
specifications 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 AT&T shall not be deemed to constitute a consent or waiver
of City's rights with respect to any subsequent act or omission by AT&T. 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 larv.
9. Within forty-five (45) days of the full execution of this Agreement, AT&T agrees
to file with City good and sufficient security as provided in subsections (l), (2), and (3) of
subdivision (a) of Section 66499 of the Govemment 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 reasonably acceptable by City's Building
Director. AT&T further agree that if the security is a bond and if the sureties on the faithful
performance bond or the amount of said bonds becomes insufficient, AT&T 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, provided such sureties does not exceed the estimated cost
of the Work. Notwithstanding any other provision herein, if AT&T fails to take such action as is
necessary to comply with said notice, AT&T 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 AT&T 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, with respect to 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 AT&T, and such
extensions shall in no way affect the validity of this Agreement or release the surety or sureties on
said bonds. AT&T 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 (as defined in Section l1
below) of this Agreement, including any extensions of time as may be granted thereon.
lL Upon the reasonably satisfactory completion and written approval of the Work by
City's Community Development Director ("Term"), such approval not to be unreasonably
withheld, conditioned or delayed, the entire amount of the security shall be released or returned by
City to AT&T.
!2, This Agreement shall be binding upon AT&T, City, Landowner, and their heirs,
executors, administrators, successors, or assigns, all and each both jointly and severally.
E 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.
It 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 AT&T 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.
lL 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, Califomia. In the event of litigation in a U.S. District Court, venue shall lie exclusively
in the Central District of California, in Los Angeles.
f& The person(s) executing this Agreement on behalf of the parties hereto warrant that
(a) such parry is duly organized and existing, (b) they are duly authorized to execute and deliver
this Agreement on behalf of said pafty, and (c) by so executing this Agreement, such party is
formally bound to the provisions of this Agreement.
19.- All notices, requests and demands hereunder will be given by first class certified or
registered mail, retum receipt requested, or by a nationally recognized overnight courier, postage
prepaid, to be effective when properly sent and received, refused or returned undelivered. Notices
will be addressed to the parties hereto as follows:
To City:City of Menifee
Community Development Department
29844 Haun Road
Menifee, CA92584
New Cingular Wireless PCS, LLC
Attn: Network Real Estate Administration
Re: Cell Site #: CSL00345; Cell Site Name
EMWD Menifee (CA)
Fixed Asset #: 13024081
1025 Lenox Park Blvd. NE, 3'd Floor
Atlanta, Georgia 30319
To AT&T:
With a copy to:
New Cingular Wireless PCS, LLC
Attn.: Legal Dept - Network Operations
Re: Cell Site #: CSL00345; Cell Site Name:
EMWD Menifee (CA)
Fixed Asset #: 13024081
208 S. Akard Street
Dallas, Tl{75202-4206
To Landowner:Eastern Municipal Water District
P.O. Box 8300
Perris, CA 92572-8300
The copy sent to the Legal Department is an administrative step which alone does not constitute
legal notice. Either party hereto may change the place for the giving of notice to it by thirty (30)
days' prior written notice to the other party hereto as provided herein.
IN WITNESS WHEREOF, AT&T, Landowner, and City have executed this Agreement as of the
date and year first above written.
New Cingular Wireless PCS, LLC, a Delaware limited liability company
By: AT&T Mobility Corporation
Its: Manager
("AT&T")
Dated: No.t 1, ZoZo
eUzt-at\opsE-
(Print Name)
04fi^ t-^pnJu<rt?6fr
(Title)
CITY OF MENIFEE, a California municipal corporation
("City")
By
Cheryl
Director
Dated: tZl $/Zoto
-
Eastern Municipal water District, a public agency of the State of California
("Landowner")
Dated:I 7tl u By
?wu Jor:aZ
(Print Name)
6trl,trfutl,t/rl6)AutR_
(Title)
Approved as to Form:
Jeffrey T. Melching
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
COUNTY OF L/ fn r,r r:-
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i I l,Alex rgOnbefore me,Notary Public,
personally appeared
(here insert name and title of the
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 @she/they executed the same in
fi]e/their authorized capacity(ie{), and that by@her/their sig-nature(s) on the instrument the
!6rson(v), or the entity upon behalf of which the person(y) acted, executed the instrument.
I certify under PENALTY OF PEzuURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
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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
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OF
On )4 vD ilt Notary Public,?officer)
who proved to me on the 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/treritheir 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 certifr under PENALTY OF PERruRY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
lsEALl
M. HERRINGTON
NolaryPublic California
lilyersrdc Collnlv
Commission # 222g443
My Comm. Expires Fcb 5, 2022
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