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2021/06/09 Meritage Homes of California, Inc. TR 36485-6 GP20-049 Grading AgreementAGREEMENT FOR GRADING AND EROSION CONTROL PROJECTS GP 20-049 TR36485-6 This Agreement, made and entered into by and between the City of Menifee, State of California, herein called City, and Meritage Homes of California, 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 Tract Map 36485-6, GP20-049 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 pl,rns for the development of said land division which have been approved by the, Public Works Direetor i 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 Agreenrent. At rts sole discretion, City may extend the peflod of time for completion of the work by providing written notice to Developer of said extension. To be effective such notice must be provided Dy the Public Works Director / City Engineer. Such notice may be provided as specified in Section Nineteenth or via electronic mail to Develope r at efrem joelson@meritage homes.com. All c,f 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 gra ling project is made by the Public Works Director / City Engineer. The estimated cost of said work ri the sum ofEltlEight Ihousand Dollarg and no/100 Dollars $ 58,000.00 which covers trrough grading only, E precise (fine) grading only, tr both rough and precise (fine) grading. SECOND: Der eloper agrees to pay to the City the actual cost of such inspections of the work as may be require -l by the Public Works Director / City Engineer. Developer further agrees that if suit is brought upr n this Agreement or any security guaranteeing the completion of the work, all costs and reason.rble expenses and fees incurred by the City in successfully enforcing such obligations shall b. paid by Developer, including reasonable attorney's fees, and that upon entry of judgment, such cc its, expenses, and fees shall be taxed as costs and included in any judgment rendered. THIRD: Cit) shall not, nor shall any officer or employee of City, be liable or responsible for any accident, los:, injury, or damage happening or occurring to the works specified in this Agreement prior tc the completion and acceptance thereof, nor shall City or any officer or employee thereof, be liable ft r any persons or property injured or damage by reason ofthe nature ofthe 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 alieged claims, demands, causes of actron, 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 corrnection with or arising out of construction or maintenance of the work contemplated uncilr this Agreement, or performance of this Agreement. This indemnification includes, without.inritation, the payment of all penalties, fines, judgments, awards, decrees, attorneys'fees, an I related costs or expenses, and the reimbursement of City, its elected officials, officers, employee,i, volunteers, and/or agents for all legal expenses, and cost incurred by each of them. This inden.rr.r if ication excludes only such portion of any claim, demand, cause of action, liability, loss, dam:rge, penalty, fine, or injury, to property or persons, including wrongful death, which is caused L.,y the negligence or willful misconduct of City as determined by a court or administration bod y of competent jurisdiction. Developer's obligation to indemnify shall survive the expiration or termirration 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 the purpose of inspecring or completing the grading project. This permission shall terminate in the event that Develol,er has completed the work within the time specified or any extension thereof granted by the Pul- Iic Works Director / City Engineer. Under such circumstances, Developer shall be responsible for any and all expenses, costs, liabilities, and fees (including attorneys'fees and Iitigation cost) ("Completion Costs") incurred by the City in connection with ensuring that the work contemplated by tl ls 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 in thJ amount equal to any unpaid Completion Costs. FIFTH: De," eloper ag rees at all times, up to the com pletion 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 d;.ngerous condition caused by the grading project, and to protect the traveling public from such drfective or dangerous condrtrons in compliance with State law regulations and standards for traffii regulatory control methods, including, but not limited to, stop signs, regulatory signs or signals, barriers, or detours. SIXTH: De'.eloper, or his agents and employees shall give notice to the Public Works Director / City Eng,i.reer at least 48 hours before beginnrng any work and shall furnish to the Public Works Director / C ty Engineer all reasonable facilities for obtaining full information respecting the progress and mar rer of wo.k. SEVENTH: lf tt j Developer, or his agents or employees, neglects, refuses, or fails to prosecute the work wilh sucr, drligence as to ensure its completion within the specified time, or within such extensions of trme as have been granted by the Public Works Director / City Engineer, or if the Developer violates, neglects, refuses, or fails to perform satrsfactorily any of the provisions of the plans and specifiC,tions, he shall be in default of this Agreement. The Public Works Director / City Engineershall ha! e the power to terminate all rights ofthe Developer because ofsuch default, but said termination slrall not affect or terminate any rights of City as against Developer or any surety then existing or wl ich thereafter accrue because of such default. The determination of the Public Works Director / C ty 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 tl e Developer, any surety, and any and all pa(ies who may have any interest in the Agreement or r.ny portion thereof. The foregoing provisions of this sectlon shall be in addition to all rights and remeJies available to the City under law or under this Agreement. The failure of the Developer to comrnence or complete construction shall not relieve the Developer or surety from completion of the ,.vork requrred by this Agreement. EIG HTH: Th€- Developer agrees to file with City prior to the date this Agreement is executed a good and sufficienr security as provided in subsections (1), (2) and (3) of subdivision (a) of Section 66499 ofthe Gove nment Code in any amount not less than the estimated cost of theworkforthe Notwithstanding ar ry other provision herein, if Developer fails to take such action as is necessary to comply with said rrotice, he shall be in default of this Agreement unless all required works completed within 9J days of the date on which the Public Works Director / City Engineer notifies the Developer of the i|sufficiency of the sureties or the amount of the bonds or both. NINTH: lt is f urther ag reed by and betvveen the parties hereto, including the surety or sureties on the bonds or thr issuers of any instruments or letters or credit securing this Agreement that, in the event it is deerrred 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 / Clty 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. Devel-,per further agrees to maintain the aforesaid bond or bonds or the issuance of any instruments o' letters of credit in full force and effect during the terms of this Agreement, including any extertsions of time as may be granted thereon. TENTH: UpLn the satisfactory completion and final approval of said work by the Public Works Director / City Engineer, $ 52.200.00 of the security applicable thereto shall be released or returned by the C 1/ to the Developer within 30 days. Of the remaining $5,800.00 security (for Erosion Control) sirall be retained. The remainder security shall be held until the California Water Quality Control Bocrd issues a Notice of Termination. ELEVENTH: Thi; Agreement shall be binding upon the Developer and his heirs, executors, administrators, surcessors or assigns, all and each both jointly and severally. This Section shall not be construed as a r authorization for any party to assign any right or obligation. TWELFTH: lt is understood and agreed bythe parties hereto that if any part, term or provision of this Agreement is -letermined by the Courts to be unlawful and void, the validity of the remaining portions shall not ire affected and the rights and obligations of the parties shall be construed and enforced as if the rigreement did not contain the particular part, term or provision held to be invalid. No waiver of any tcrm or condition of this Agreement shall be continuing waiver thereof. THIRTEENTH: Tt,e 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 rhe attention of the Public Works Director/ City Engineer, who will issue a ruling. FOURTEENTH: 1 rre grading operation shall obtain a Construction General Permitfrom the State of California Regiona, Water Quality Control Board and conform to all requirements. This permitshall override any confl ctrng requirenrents 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 oi a registered geotechnical engineer in the State of California. faithful performance of the terms and conditions of this Agreement, except that when the estimated cost of said work rs $2,500 or less, the security shall be a deposit of cash or its equivalent as determined accept3ble by the Public Works Director/ City Engineer. Developer further agrees that if in the opinion ol the Public Works Director / City Engineer the security becomes insufficient, Developer agrees ro 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. SIXTEENTH: The City may elect to perform geotechnical quality assurance of the grading operation, which wrll be compensated as provided in the SECOND paragraph. SEVENTEENTH. The Developer agrees to grant free access to the Public Works Director / City Engineer, his stafr and consultants to perform inspections and quality assurance sampling and tests. Srly City of Menifee 29844 Haun Road Menifee, CA 92586 Meritage Homes of California, lnc 5 Peters Canyon Road, Suite 310 lrvine, Ca 92606 NINETEENTH: Th,s Agreement contains the entire agreement of the parties as to the matters set forth herein. No r,"raiver of any term or condition of this Agreement shall be continuing waiver thereof. TWENTIETH. In any action or proceeding ansing out of this Agreement, or the transactions contemplated hereby, the prevailing party therein shall be entitled to recover from the other party thereto the reason-rble 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. TWENTY-FIRST: Developer shall not assign, hypothecate, or transfer, either directly or by operation of law, tl)is Agreement or any interest herein without prior written consent of City. Any attempt to do so slrall be null and void, and any assignee, hypothecate, or transferee shall acquire no right or interesr 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 trarrsferee shall expressly assume Developels obligations hereunder by a written agreement in a furm, and containing such surety, as is reasonably acceptable to City. Any agreement, hypotltecation, or transfer shall be to the satisfaction of the City Attorney and shall include provisions eq uirrng the assig nee to post bonds or submit another form of financial security, satisfactory to Cit1, and approved by the City Attorney, to guarantee construction of the work covered by this Ag reement. 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 the samu instruments. EIGHTEENTH: Anr' 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. Develooer TWENTY-THIRD: This Agreement is to be governed by the laws of the State of Californra. IN WITNESS WHEREOF, DEVELOPER HAS AFFIXED HIS NAME, ADDRESS AND SEAL Dated:o ,2021 By t^,L.-4 S€ €2n4z,e 4 c-fo Dated b q ,2021 CITY OF MENIFEE By Yol a Macalalad, PE, QSD City ngrneer SIGNATURES OF OWNER MUST BE AKNOWLEDGED BY NOTARY AND EXECUTED IN TRIPLICATE c 4'1' l - ){4'tl4/,re L By: STATEOFARIZONA $ coUNTYoFMARICOPA $ On this day, February 10,2021. befbre me, Jennie Perez. a Notary Public in ar.rd for said County and State, residing therein, duly commissioned and sworn. personally appeared Glen A. Tulk. Senior Vice President - National Land and Hilla Sferruzza. Executive Vice President and CFO olMeritage Homes of Calilbrnia. Inc. , a Calilbrnia corporation. the company described herein. who both executed the foregoing instrument and are known to me to be the person who executed the said instrument on behalf of the said company, and who duly acknowledged to me that such company executed same. WITNESS my hand and olficial seal. My c"JirrioN*l] pires: February 3, 2025 @,CountY 595192 Elplree JEXNIE PERET 10253,Comn.