2021/09/30 Pulte Home Company, LLC TR 36658-5 GP17-073R GradingThis Agreement, made and entered into by and between the City of Menifee, State ol
California, herein called City, and Pulte Home Co. LLC hereinafter called Developer.
WITNESSETH
FIRST: Developer, for and in consideration o{ the approval of a grading plan and the
issuance of a grading permit on that certain land division known as TR36658-5, agrees, at
Developer's own cost and expense, to furnish all labor, equipment, and material necessary to
perform and complete, and within { 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 effective 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 lnput applicable email address for
Developer contact. AII of the above required work shall be done under the inspection ol and to the
satislaction of the Public Works Director / City Engineer and shall not be deemed complete until
approval of the grading prolect is made by the Public Works Director/ City Engineer. The estimated
cost ol said work is the sum ol One Million Ninety Seven Thousand Five Hundred and No/I00
Dollars $ 1.097,500.00 which covers Erough grading only, E precise (fine) grading only, O 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 lurther agrees that if
suit is 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, includrng reasonable altorney's fees, and that upon entryof
judgment, such costs, expenses, and fees shall be taxed as costs and included in any judgment
rendered.
AGREEMENT
FOR GHADING AND EROSION CONTHOL PROJECTS
FOR TR35558-5
GP t T-073R
THIRD: City shall not, nor shall any oflicer or employee oJ City, be liable or responsible lor
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 pedormance of
the work, and all or saad 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 ol 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 ol the work
contemplated under this Agreement, or performance ol this Agreement. This indemnilication
includes, without limitation, the payment of all penalties, fines, judgments, awards, decrees,
attorneys'{ees, and related costs or expenses, and the reimbursement of City, its elected ofiicials,
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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 aclion,
liability, loss, damage, penalty, fine, or injury, to property or persons, including wrongful death,
which is caused by the negligence or willf ul misconduct of City as determined by a court or
administration body of competent jurisdiction. Developer's obligation to indemnily 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, 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 relerenced land division lor the
purpose of inspecting or completing the grading prolect. 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'lees and
litigation cost) ("Completion Costs") incurred 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 ol such Completion
Costs. Failure to remrt 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 ot 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 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 belore 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, reluses, 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 satisfactorily any of the provisions of the
plans and specifications, he shall be in delault of this Agreement. The Public Works Director / City
Engineer shall have the power to terminate all rights of the Developer because ol such default, but
said termination shall not aJfect 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 ol the question as to whether any of the terms ol 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 thereot. The foregoing provisions ot 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) ol Section
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66499 of the Government Code in any amount not less than the estimated cost of the work for the
laithlul pedormance of the terms and conditions of this Agreement, except that when the estimated
cost ol said work is $2,500 or less, the security shall be a deposit ol cash or its equivalent as
determined acceptable by the Public Works Director / City Engineer. Developer lurther agrees that
il in the opinion of the Public Works Director / City Engineer the security becomes insufficient,
Developer agrees to renew each and every security with good and sufticient 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.
Notwithstanding any other provision herein, il Developer Jails to take such action as is necessary to
comply with said notice, he shall be in delault of this Agreement unless all required works
completed within 90 days of the date on which the Public Works Director / City Engineer notilies the
Developer of the insufficiency of the sureties 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 ol 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 o, 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 aloresaid bond or bonds or the issuance o{
any instruments or letters of credit in full force and eflect during the terms ol this Agreement,
including any extensions of time as may be granted thereon.
TENTH: Upon the satislactory completion and Iinal approval ol said work by the Public Works
Director / City Engineer, $ 814.500 of the security applicable thereto shall be released or returned
by the City to the Developer within 30 days. Of the remaining 5282,500.00 security (for Erosion
Control) shall be retained. The remainder security shall be held until the California Water Ouality
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 Ior 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 ot
this Agreement is determined by the Courts to be unlavyful 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 ol this Agreement shall be continuing waiver thereof.
THIRTEENTH: The grading operation will contorm 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 oi
California Regional Water Quality Control Board and conform to all requirements. This permit shall
override any con{iicting 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.
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SIXTEENTH: The City may elect to perlorm 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.
Arjy
City of Menifee
29844 Haun Road
Menifee, CA 92586
Pulte Home Co. LLC
27401 Los Altos
Suite 400
Mission Viejo, CA 92691
NINETEENTH: This Agreement contains the entire agreement of the parties as to the matters 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 transter, 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 ol such attempted assignment, hypothecate, or transfer. Unless
specilically stated to the contrary in City's written consent, any assignment, hypothecation, or
transler 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 transteree 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 ol the City Attorney and shall
include provisions requiring the assignee to post bonds or submit another form of financial security,
satislactory to City and approved by the City Attorney, to guarantee construction of the work
covered by this Agreement.
TWENTY-THIRD: This Agreement is to be governed by the laws of the State of Calilornia.
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.
Developer
TWENTY-SECOND: This Agreement may be executed by the parties in counterparts, which
counterparts shall be construed together and have the same effect as iJ all of the parties had
executed the same instruments.
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IN WITNESS WHEREOF, DEVELOPER HAS AFFIXED HI E, ADDRESS AND SEAL.
Dated:2021
WARREN
Vice President L.nd
By
Dated:2021 CITY OF MENIFEE
Daniel Padilla, City Engineer
SIGNATURES OF OWNER MUST BE AKNOWLEDGED BY NOTARY
AND EXECUTED IN TRIPLICATE
By
By:
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9/30/2021
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certifjcate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of ORANGE )
on SEPTEMBER 73,202L before me,CRESIDA DIAZ, NOTARY PUBLIC
(insert name and title of the officer)
personally appeared DARREN WARREN
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(6) is/a+e
subscribed to the within inslrument and acknowledged to me that hekh€Ah€y executed the same in
his/he#the# authorized capacity({es), and that by hisfte#thei+ signature{€}on the instrument the
person(9, 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.
CRtS DA DIAI
Notary!)ublr Calilornia
otulnqr tounLY
aommission f 2232345
,
(omn]. txPires Feb 25,2022
Signature A.-.2 2 (Seal)
WITNESS my hand and official seal.
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