2021/09/30 Pulte Home Company, LLC TR 36658-1 GP17-073R Grading AgreementThis Agreement, made and entered into by and between the city of MeniJee, state ofcalifornia, herein called city, and pulte Home co. LLc, hereinafter called beveloper.
WITNESSETH
FIRST: Developer, lor and in consideration ol the approval ol a grading pran and theissuance of a grading permit on that certain land division known as rigoosi-i. agrees, atDeveloper's own cost and expense, to furnish aI rabor, equipment, anoiZGiiE-t nec6ssary topedorm and complete, and within 24 months from the date thisAgreement is executed, to perlormand complete in a good and workmanlike manner, said grading in accordance with the gradingplans lor the development ol said land division which have been approved by the, publicworki
Director/ City Engineer, and are on file in the City, and do all work incidental thereto in accordancewith the standards set forlh in city-adopted ordinances, which are expressly made a part oI thisAgreement. At its sole discretion, City may extend the period of time for comfiletion of ti-re work byproviding written notice to Developer ol said extension. To be effective such notice must beprovided by the Public Works Director / City Engineer.
Section Nineteenth or via electronic mail to Develop
AGBEEMENT
FOR GRADING AND EROSION CONTROL PROJECTS
FOR TR366s8-1
cPl7-073R
Such notice may be provided as specif ied in
er at lnput a licable email a ress forDeveloper contact. All of the above required work s
satisfaction of the Public Works Director / City Engi
approval of the grading project is made by the public
cost ol said work is the sum of Four Million Tw
hall be done under the inspection of and to the
neer and shall not be deemed complete until
Works Director / City Engineer. The estimatedo Hundred Seven Thousand and No/l00
Dollars $ 4.207.000.00 which covers E
rough and precise (fine) grading.
rough grading only, E precise (fine) grading only, tr both
SECOND: Developer agrees to pay to the City the actual cost ol 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 this Agreement or any security guaranteeing the completion of the work, allcosts and reasonable expenses and tees incurred by the City in successfully enforcing suchobligations shall be paid by Developer, including reasonable attorney's fees, and ihat upon entry ofjudgment, such costs, expenses, and fees shall be taxed as costs and included in any iudgmentrendered.
THIRD: City shall not, nor shall any oflicer or employee of City, be liable or responsible forany accident, loss, iniury, or damage happening or occurring to the works specilied 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 ol 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 Irom any
and all actual or alleged claims, demands, causes ol 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 ol construction or maintenance of the work
contemplated under this Agreement, or performance of this Agreement. This indemnirication
includes, without limitation, the payment of all penalties, fines, judgments, awards, decrees,
attorneys'fees, and related costs or expenses, and the reimbursement ol City, its elected otficials,
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officers, employees, volunteers, and/or agents for all legal expenses, and cost incurred by each of
them. This indemnilication excludes only such portion of any claim, demand, cause ol action,
liability, loss, damage, penalty, fine, or injury, to property or persons, rncluding 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 obligatron to indemnily shall survive the
expiration or termination o, 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 inspecting or completing the grading project. This permission shall terminate in the
event that Developer has completed the work within the time specified or any extension thereol
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") rncurred by the City in connection 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 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 give good and adequate warning to the traveling public of
each and every dangerous condition caused by the grading project, and to protect the kaveling
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 belore beginning any work and shall f urnish to the Public
Works Director / City Engineer all reasonable facilities ior obtaining full inlormation respecting the
progress and manner of work.
SEVENTH: lf the Developer, or his agents or employees, neglects, reluses, or lails to prosecute
the work with such diligence as to ensure its completion within the specilied time, or within such
extensions of time as have been granted by the Public Works Director / City Engineer, or if the
Developer violates, neglects, reJuses, or fails to perform satisfactorily any of the provisions ol the
plans and specifications, he shall be in default ol this Agreement. The Public Works Director / City
Engineer shall have the power to terminate all rights of the Developer because of such delault, but
said termination shall not aliect 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 whethel any of the terms of this Agreement or
the plans and specifications have been violated or have not been pedormed satislactorily shall be
conclusive upon the Developel, any surety, and any and all parties who may have any interest in
the Agreement or any portion thereol. The loregoing 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 ol the
Developer to commence or complete construction shall not relieve the Developer or surety from
completion ol the work required by this Agreement.
EIGHTH: The Developer agrees to file with City prior to the date thrs Agreement is executed a
good and sutficient security as provided in subsections (1), (2) and (3) of subdivision (a) ol Section
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66499 ol the Government Code in any amount not less than the estimated cost of the work for the
faithful performance of the terms and conditions ol lhis Agreement, except that when the estimated
cost ol said work is $2,500 or less, the security shall be a deposil of cash or its equivalent as
determined acceptable by the Public Works Director / City Engineer. Developer further agrees that
il in the opinion of the Public Works Director / City Engineer the security becomes insu{ficient,
Developer agrees to renew each and every security with good and sufficient sureties or increase
the amount ol the security, within ten days after being notified by the Public Works Director / City
Engineer that the sureties or amounts are insuff icient.
Notwithstanding any other provision herein, il Developer lails to take such action as is necessary to
comply with said notice, he shall be in delault ol this Agreemenl unless all required works
completed within 90 days of the date on which the Public Works Director/ City Engineer notifies the
Developer of the insutficiency oI the sureties or the amount ol the bonds or both.
NINTH: lt is lurther agreed by and between the parties hereto, including the surety or sureties
on the bonds or the issuers of any instruments or letters or credil securing this Agreement that, in
the event it is deemed necessary to extend the time of completion ol the work contemplated to be
done under this Agreement, extensions of time may be granted from time to time by the Public
Works Director/ City Engineer either at his own option or upon request of the Developer, and such
extensions shall in no way affect the validity of this Agreement or release the surety or sureties on
said bonds. Developer further agrees to maintain the aforesaid bond or bonds or the issuance of
any instruments or letters of credit in lull force and effect during the terms of this Agreement,
including any extensions of time as may be granted thereon.
TENTH: Upon the satisfactory completion and tinal approval ot said work bythe Public Works
Director / City Engineer,$ 3,748.000 of the security applicable thereto shall be released or returned
by the City to the Developer within 30 days. Of the remaining $459.000.00 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 lor 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 ol
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 obligations o, the parties shall be construed and
enlorced 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 conllict or discrepancy between the drawings and the City-adopted ordinances
shall be brought to the attention ol the Public Works Director/ City Engineer, who will issue a ruling.
FOURTEENTH: The grading operation shall obtain a Construction General Permit f rom the State ol
California Regional Water Quality Control Board and conlorm to all requirements. This permit shall
override any conflicting requirements in the Cily-adopted ordinances.
FIFTEENTH: The Developer shall provide geotechnical quality control ol 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.
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SIXTEENTH: The City may elect to perform geotechnical quality assurance of the grading
operataon, which will be compensated as provided in the SECOND paragraph.
SEVENTEENTH: The Developer agrees to grant lree 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 permined to be given pursuant to this Agreement
shall be served on the other party by mail, postage prepaid, at the addresses listed below.
Axy Developer
City of Menifee
29844 Haun Road
Menifee, CA 92586
Pulte Home Co. LLC
2740 1 Los Altos
Suite 400
Mission Viejo , CA 92691
NINETEENTH: This Agreement contains the entire agreement of the parties as to the matlers set
forth herein. No waiver 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.
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
atlempt to do so shall be null and void, and any assignee, hypothecate, or transleree shall acquire
no right or interest by reason of such attempted assignment, hypothecate, or transfer. Unless
specilically 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 lorm, and containing such surety, as is reasonably acceptable to City. Any
agreemenl, 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 oI financial security,
satisfactory to City and approved by the City Attorney, to guarantee constructlon ol 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 il all of the parties had
executed the same instruments.
TWENTY-THIRD: This Agreement is to be governed by the laws ol the State of California.
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IN WITNESS WHEREOF, DEVELOPER HAS AFFIXED HI AME, ADDRESS AND SEAL.
Dated:,?2021
By
DARREN WARREN
vlce rrestoenl LandAcouirhir. r. neir.k!|tEt
By
Dated:CITY OF MENIFEE
Daniel Padilla, City Engineer
SIGNATURES OF OWNER MUST BE AKNOWLEDGED BY NOTARY
AND EXECUTED IN TRIPLICATE
By
,2021
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