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2021/05/12 Western Pacific Housing, Inc. TR36484 GP21-001 GP21-002 GP21-003AGREEMENT FOR GRADING AND EROSION CONTROL PROJECTS cP2t -001, cP21 -O02, GP21 -003 This Agreement, made and entered into by and between the City of Menifee, State ofcalifornia, herein called city, and western Pacific Housing, lnc. hereinafter called Developer. WITNESSETH FIRST: Developer, for and in consideration of the approval of a grading plan and the issuance of a grading permit on that certain land division known as TR36484 , agrees, at Developer's own cost and expense, to furnish all labor, equipment, and material necessary to perform and complete, and within 24 months from the date this Agreement is executed, to perform and complete in a good and workmanlike manner, said grading in accordance with the grading plans for the development of said land division which have been approved by the, public works Director/ City Engrneer, and are on file in the City, and do all work incrdental thereto in accordance with the standards set forth in city-adopted ordinances, which are expressly made a part of this Agreement. At its sole discretion, City may extend the period of time for completion of the work byproviding written notice to Developer of said extension. To be effective such notice must beprovided by the Public Works Director / City Enginee Section Nineteenth or via electronic mail to Develop r. Such notice may be provided as s rhorton.comer at dioerni con pecified in All of the above required work shall be done under the inspection of and to the satisfaction of the Public works Director / city Engineer and shall not be deemed complete until approval of the grading project is made by the Public Works Director / City Engineer. The estimated cost of said work is the sum of lnlo Hundred Twenty Two Thousand and no/100 Dollars 222s 000.00 which covers trrough grading only, E precise (fine) grading only, D both rough and precise (fine) grading SECOND: Developer agrees to pay to the City the actual cost of such inspections of the work as may be required by the Public Works Director / City Engineer. Developer further agrees that if suit is brought upon thls Agreement or any security guaranteeing the completion of the work, all costs and reasonable expenses and fees incurred by the City in successfully enforcing such obligations shall be paid by Developer, including reasonable attorney's fees, and that upon entry of judgment, such costs, expenses, and fees shall be taxed as costs and included in any judgment rendered. THIRD' City shall not, nor shall any officer or employee of City, be liable or responsible for any accident, loss, injury, or damage happening or occurring to the works specified in this Agreement prior to the completion and acceptance thereof, nor shall City or any officer or employee thereof, be liable for any persons or property injured or damage by reason of the nature of the work, or by reason of the acts or omissions of Developer, its agents or employees, in the performance of the work, and all or said liabilities are assumed by Developer. Developer shall defend, indemnify, and hold harmless City, its elected officials, officers, employees, agents, and volunteers from any and all actual or alleged claims, demands, causes of action, liability, loss, administrative action of any federal, state, or local government body or agency, arising out of or incident to any acts, omissions, negligence, or willful misconduct of Developer, its personnel, employees, agents, or contractors in connection with or arising out of construction or maintenance of the work contemplated under this Agreement, or performance of this Agreement. This indemnificataon includes, without limitation, the payment of all penalties, fines, judgments, awards, decrees, attorneys'fees, and related costs or expenses, and the reimbursement of City, its elected officials, officers, employees, volunteers, and/or agents for all legal expenses, and cost incurred by each of them. This indemnification excludes only such portion of any claim, demand, cause of action, liability, loss, damage, penalty, fine, or injury, to property or persons, including wrongful death, which is caused by the negligence or willful misconduct of city as determined by a court or administration body of competent jurisdiction. Developer's obligation to indemnify shall survtve the expiration or termination of this Agreement, and shall not be restricted to insurance proceeds, if any, received by City, its elected officials, officers, employees, agents, or volunteers. FOURTH: The Developer hereby grants to the City, and to any agent or employee of the City, the irrevocable permission to enter, upon the lands of the above referenced land division for thepurpose of inspecting or completing the grading pro.iect. This permission shall terminate in the event that Developer has completed the work within the time specified or any extension thereof granted by the Public Works Director / City Engineer. Under such circumstances, Developer shall be responsible for any and all expenses, costs, liabilities, and fees (including attorneys'fees and litigation cost) ("Completion Costs") incurred by the City in conneclion with ensuring that the work contemplated by this Agreement is completed. Developer shall remit such Completion Costs to the City no more than thirty (30) days of the date that the City notifies Developer of such Completion Costs. Failure to remit the Completion Costs in a timely matter shall result in the City having the right to invoke any remedy provided by law including the encumbrance of the any property owned by Developer rn the amount equal to any unpaid Completion Costs. FIFTH: Developer agrees at all times, up to the completion and approval of the work by the Public Works Director/ City Engineer, to give good and adequate warning to the traveling public of each and every dangerous condition caused by the grading prolect, and to protect the traveling public from such defective or dangerous conditions in compliance with State law regulations and standards for traffic regulatory control methods, including, but not limited to, stop signs, regulatory signs or signals, barriers, or detours. SIXTH: Developer, or his agents and employees shall give notice to the Public Works Director / City Engineer at least 48 hours before beginning any work and shall furnish to the Public Works Director i City Engineer all reasonable facilities for obtaining full information respecting the progress and manner of work. SEVENTH: lf the Developer, or his agents or employees, neglects, refuses, orfails to prosecute the work with such diligence as to ensure its completion within the specified time, or within such extensions of time as have been granted by the Public Works Director / City Engineer, or if the Developer violates, neglects, refuses, or fails to perform satisfactorrly any of the provisions of the plans and specifications, he shall be in default of this Agreement. The Public Works Director / City Engineer shall have the power to terminate all rights ofthe Developer because of such default, but said termination shall not affect or terminate any rights of City as against Developer or any surety then existing or which thereafter accrue because of such default. The determination of the Public Works Director / City Engineer 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 the Developer, any surety, and any and all parties who may have any interest in the Agreement or any portion thereof. The foregoing provisions of this section shall be in addition to all rights and remedies available to the City under law or under this Agreement. The failure of the Developer to commence or complete construction shall not relieve the Developer or surety from completion of the work required by this Agreement. EIGHTH: The Developer agrees to file with City prior to the date this Agreement is executed a 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 Notwithstanding any other provision herein, if Developer fails to take such action as is necessary to comply with said notice, he shall be in default of this Agreement unless all required works completed within 90 days of the date on which the Public Works Director / City Engineer notifies the Developer of the insufficiency of the sureties or the amount of the bonds or both. TENTH: Upon the satisfactory completion and final approval of said work by the Public Works Director / City Engineer, $ 202.500.00 of the security applicable thereto shall be released or returned by the City to the Developer within 30 days. Of the remaining $19.500.00 security (for Erosion Control) shall be retained. The remainder security shall be held until the California Water Quality Control Board issues a Notice of Termination. ELEVENTH: This Agreement shall be binding upon the Developer and his heirs, executors, administrators, successors or assigns, all and each both jointly and severally. This Section shall not be construed as an authorization for any party to assign any right or obligation. TWELFTH: lt is understood and agreed by the parties hereto that if any part, term or provision of this Agreement is determined by the Courts to be unlaudul 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 the 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 continuing waiver thereof. THIRTEENTH: The grading operation will conform to the contract documents and City-adopted ordinances. Any conflict or discrepancy between the drawings and the City-adopted ordinances shall be brought to the attention of the Public Works Director / City Engineer, who will issue a ruling. FOURTEENTH: The grading operation shall obtain a Conskuction General Permitfrom the State of California Regional Water Quality Control Board and conform to all requirements. This permit shall override any conflicting requirements in the City-adopted ordinances. FIFTEENTH: The Developer shall provide geotechnical quality control of the grading operation in accordance with City-adopted ordinances. The geotechnical quality control will be under the supervision of a registered geotechnical engineer in the State of California. cost of said work is $2,500 or less, the security shall be a deposit of cash or its equivalent as determined acceptable by the Public Works Director / City Engineer. Developer further agrees that if in the opinion of the Public Works Director i City Engineer the security becomes insufficient, Developer agrees to renew each and every security with good and sufficient sureties or increase the amount of the security, within ten days after being notified by the Public Works Director / City Engineer that the sureties or amounts are insufficient. N INTH: lt 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 or 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 the public Works Director / City Engineer either at his own option or upon request of the Developer, and such extensions shall in no way affect the validity of this Agreement or release the surety or sureties on said bonds. Developer 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 terms of this Agreement, including any extensions of time as may be granted thereon. SIXTEENTH: The city may elect to perform geotechnical quality assurance of the grading operation, which will be compensated as provided in the SECOND paragraph. SEVENTEENTH: The Developer agrees to grant free access to the Public Works Director / City Engineer, his staff and consultants to perform inspections and quality assurance sampling and tests. EIGHTEENTH: 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 addresses listed below. SXY Develooer City of Menifee 29844 Haun Road Menifee, CA 92586 Western Pacific Housing, lnc. 2280 Wardlow Cir #100 Corona, CA, 92878 NINETEENTH: This Agreement contains the entire agreement of the parties as to the matters set forth herein. No watver of any term or condition of this Agreement shall be continuing waiver thereof. TWENTIETH: ln any action or proceeding arising out of this Agreement, or the transactions contemplated hereby, the prevailing party therein shall be entitled to recover from the other party thereto the reasonable attorneys' and paralegals' fees, court costs, filing fees, publication cost and other expenses incurred by the prevailing party in connection therewith, at trial and all appellate proceedings. TWENry-FIRST: Developer shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without prior written consent of City. Any attempt to do so shall be null and void, and any assignee, hypothecate, or transferee shall acquire no right or interest by reason of such attempted assignment, hypothecate, or transfer. Unless specifically stated to the contrary in City's written consent, any assignment, hypothecation, or transfer shall not release or discharge Developer from any duty or responsibility under this Agreement. ln the event that City consents in writing to such an assignment, any assignee, hypothecate, or transferee shall expressly assume Developer's obligations hereunder by a written agreement in a form, and containing such surety, as is reasonably acceptable to City. Any agreement, hypothecation, or transfer shall be to the satrsfaclion of the City Attorney and shall include provisions requiring the assignee to post bonds or submit anotherform offinancial security, satisfactory to City and approved by the City Attorney, to guarantee construction of the work covered by this Agreement. TWENTY-SECOND: This Agreement may be executed by the parties in counterparts, which counterparts shall be construed together and have the same effect as if all of the parties had executed lhe same instruments. TWENTY-THIRD: This Agreement is to be governed by the laws of the State of California IN WTNESS WHEREOF, DEVELOPER HAS AFFIXED HIS NAME, ADDRESS AND SEAL. Dated 2021 S RN PACIFIC HOUSING, INC Dated:,2021 CITY OF MENIFEE By Yol Macalalad, PE, QSD City grneer SIGNATURES OF OWNER MUST BE AKNOWLEDGED BY NOTARY AND EXECUTED IN TRIPLICATE a J: tl4lzozt