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2021/03/10 Jesus Alday GP 20-039 GradingAGREEMENT FOR GRADING AND EROSION CONTROL PROJECTS GP20.039 This Agreement, made and entered into by and between the City of Menifee, State of California, herein called City, and Jesus Alday, 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 AlCty_3eSiC$Cg, agrees, at Developeas own cost and expense, to furnish all labor equipment, and material necessary to perform and complete, and within Z[ 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 Engineer, and are on file in the City, and do all work incidental 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 by providing written notice to Developer of said extension. To be eftective such notice must be provided by the Public Works Director / City Engineer Such notice may be provided as specified in Section Nineteenth or via electronic mail to Developer at lilalday@glEtiLlgm. 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__Ni-neEg!.lbg!!a.0{j99yg! Hundred and Fiftv_ Dollars -Sl9 500.00 which covers a rough grading only a precise (fine) grading only, Xa 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 Oirector / City Engineer Developer further agrees that if suat as brought upon this 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 ot judgment, such costs, expenses, and fees shall be taxed as costs and included in any judgment rendered. THIRDT 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 rn 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 mntractors in mnnection with or arising out of construction or maintenance of the work contemplated under this Agreemant, or performance of this Agreement This indemnification includes, without limitation, the payment of all penalties, fines, ludgments, awards, decrees, attorneys' fees and related costs or expenses and the reimbursement of City, its elect€d officials, officers, employees, volunteers, and/or agents for all legal expenses, and cost incurred by each of them. This andemniflcation 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 survive the expiration or termination of this Agreement, and shall not be restricted to insurance proceeds, if any, received by City, its elected officials, ofiicers, empioyees, 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 the purpose of inspecting or completing the grading project. This permission shall terminate in the event that Developor 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 atl expenses. costs liabilities and fees (including attorneys'fees and litigation cost) ("Completion Costs") incurred by the City in connection with ensuring that the work contemplated by this Agreement is completed. Devetoper shall remit such Completion Costs to the City no more than thirty (30) days of the date that the City notfies 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 in 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 gjve good and adequate warning to lhe traveling public of each and every dangerous condition caused by the grading pro,ect, and toprotect 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 srgnals, barners, or detours. SIXTH Developer, or his agents and employees shall give notice to the public Works Director / City Engrneer at least 48 hours before beginning any work and shall furnish to the Public Works Director / 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, or fails to prosecute the work with such diligence as to ensure its completion within the specified time, orwithin such extensrons of time as have been granted by the Public Works Director / City Engineer, or if the Developer violates, neglects, refuses, or fails to perform satisfactorily any of the provisions of the plans and specifications, he shall be in default of this Agreement ThePublic Works Director / City Engineer shall have the power to terminate all rights of the 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 satisfaclorily shall be mndusive 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 ot this section shall be in addition to a 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 covernment 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 the Public Works Director / City Engineer Developer further agrees that if in the opinion of the Public Works Director / City Engineer th6 security becomes insutficient, 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 i City Engineer that the sureties or amounts are insufficient. 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 suretles or the amount of the bonds or both. NINTH: 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, extensjons of time may be granted from time to time by the Public Works Director / City Engineer either at his own option or upon request oI 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. TWENTY-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 hansfer. Unless specifically stated to the mntrary 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 satisfaction of the City Attorney and shall include provisions requiring the assignee to post bonds or submit another form of flnancial 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 elfect as if all of the parties had executed the same instruments TWENTY-THIRD This Agreement is to be governed by the laws of the State of California IN WITNESS WHEREOF, DEVELOPER HAS AFFIXED HIS NAME, ADDRESS AND SEAL. Dated ^- \'3 Dated 3lp ao.)l* ,ra\€ffi tr+{$tog By By CITY OF MENIFEE Macalalad, PE, QSD neer Yola City SIGNATURES OF OWNER MUST BE AKNOWLEDGED BY NOTARY AND EXECUTED IN TRIPLICATE TENTH: Upon the satisfactory completion and final approval of said work by the Public Works Director / City Engineer, 9_.1!.000.00 of the security applicable thereto shall be released or returned by the City to the Developer within 30 days. Of the remaining 915,500.00 security (for Erosion Controi) shall be retained. The remainder security shall be held until the California Water Quality Control Board issues a Notic€ 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. Thas 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 unlawful and void, the validity of the remaining portions shall not be affected and the rights and obllgations 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 Construction General Permit from the State of California Regional Water Quality Control Board and conform to all requirements. This permit shall override any conflicting requirements jn the C(y-adopted ordinances. FIFTEENTH. The Developer shall provide geotechnical quality control of the grading operation in accordance with City-adopted ordinances. The geotechnic€l quality control will be under the supervision of a registered geotechnical engineer in the State of California. 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. C itlt Developel City of Menifee 29844 Haun Road Jesus Alday Full Address Here City, State, Zip Code Menifee CA 92586 aB44 Qo)rrvc ilr Y\en,\w , L{\ \eOgl, NINETEENTH: This Agreement contains the entire agreement of the parties as to the matters setforth herein. No waiver of any term or condition ofthis 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, crurt costs, fling fees, publication cost and other expenses incurred by the prevailing party in connection therewith, at trial and all appellate proceedings. GALIFORNIA ALL. PURPOSE CERTIFIGATE OF ACKNOWLEDGMENT State of California ) County of Qi,,rn*lu ) On before me, personall y appea red sis of satisfactory dence 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. GEORGEANN CORREA WITNESS my hand and official seal.Commir3lon No. 2267Ot0 toT RY PUBllC.cAl.lFORl'llA FIVERSIOE COUNTY ir, c6ln Erri NOVEUAER 16 2022 -I ry Pub tc igna re (Notary Pubtic Seal) ADDITIONAL OPTIONAL INFORMATION INSTRUCTIONS FOR COMPLETING THIS FORM This form complies y)ith currcnt Calilornia stotutes rcgarding notary u)oftlingand, ifneeded, should be conpleted and attached to the docunent. Ackno' ledgnents lrcm other states mdy be conplered/or docunenrs being sent to that ttate so long as the wodin? does not rcquire lhe Calilornia nolory lo riolale Colilonia nolory . State and County infomation must be the State and County where the document signe(s) personally appeared before the notary public for acknowledgmenl.. Date ofnotarizltion mlst be the date that the signer(s) peBonally appeared which must also be thc same date $e aclorowledgment is completed.. The notary public must print his or her name as it appears within his or her commission follo\ ed by a comma and lhen your title (notary public).. Print the namqs) of document sign€(s) who personally appear al the time of notadzation-. Indicate the con€ct singular or plural forms by crossing off incorect forms (i.e. hdshe/th€yr is /e+o ) or circling the corrcct forms. Failure to conectly indicale this information may lead to rEjection of document recording.. The notary seal impression musl be clear and pholographically reptoducible. Ifiprcssion must not cover l€xt or lines. If seal impression smudges. re-seal if a suflicient arca permits, otherwise complete a differcnt acknowledgment form.. Si8naturc of the nota.y public must match the signature on file with the office of lhe county clerk..:. Additional information is nol requircd but could help to ensure lhis acknowl€dgm€nt is not misused or attached to a different documenl..1. Indicate title or type ofattached document, numbe. ofpages and date.* Indicate the capacity claimed by the signer. lf the claimed capacity is a corpomte olficer. indicarethe title (i.e. CEO, CFO, S€crelary).. Securely attach this dmument to the signed document with a staple.:l{.}1 I \je.ljioi vw..J t\iOtarya:lasse$ con-' lt0i.i^it?il^?605 (Title or n of attached document) Number of Pages Document Date (Title or of attached documenl continued) BY THE SIGNER (Title) Partne(s) Attorney-in-Fact Trustee(s) Other n tr ! D ! Corporate Officer CAPACITY CLAIM ! lndividual (s) 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. who proved to me on the oz DESCRIPTION OF THE ATTACHED DOCUMENT