2021/09/30 Pulte Home Company, LLC TR 36658-7 GP17-073R GradingAGREEMENT
FOR GRADING AND EROSION CONTROL PROJECTS
FOR TR366s8-7
GPl7-073R
This Agreement, made and entered into by and between the City of Menifee, State of
California, herein called City, and Pulte Home Co. LLC, hereinafter called Developer.
FIRST: Developer, Ior and in consideration of the approval of a grading plan and the
issuance of a grading permit on that certain land division known as TR36658-7. 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 developmenl of said land division which have been approved by the, Public WoIks
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 ol the work by
providing written notice lo Developer ol said extension. To be ef{ective such notice must be
provided by the Public Works Director / City Engineer. Such notice may be provided as specified inSectionNineteenthorViaelectronicmailtoDeVeloperat@
Developer contact. All of the above required work shall be done under the inspection of and to the
satislaction of the Public Works Director / City Engineer and shall not be deemed complete until
approval ol the grading proiect is made by the Public Works Director/ City Engineer. The estimated
cost of said work is the sum ol Seven Hundred Fiftv Eiqht Thousand Five Hundred and No/l0O
Dollars $ 758.500.00 which covers 8rough grading only, 0 precise (Iine) grading only, tr 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 il
suit is brought upon this Agreement or any security guaranteeing the completion oI the work, all
costs and reasonable expenses and lees incurred by the City in successfully enforcing such
obligations shall be paid by Developer, including reasonable attorney's lees, and that upon entry of
judgment, such costs, expenses, and fees shall be taxed as costs and included in any iudgment
rendered.
THIRD: City shall not, nor shall any officer or employee ol 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 thereol, 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 delend, indemnify,
and hold harmless City, its elected oflicials, officers, employees, agents, and volunteers from any
and all actual or alleged claims, demands, causes oI 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 willlul misconduct ol 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 ol all penalties, fines, iudgments, awards, decrees,
attorneys'fees, and related costs or expenses, and the reimbursement of City, its elected officials,
WITNESSETH
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officers, employees, volunteers, and/or agents Jor all legal expenses, and cost incurred by each of
them. This indemnification excludes only such portion oI 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 ol competent iurisdiction. Developer's obligation to indemnify shall survive the
expiration or termination of this Agreement, and shall not be restricted to insurance proceeds, il 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 ol 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 speciried 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 lees (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. Developer shall remit such Completion Costs to the
City no more than thirty (30) days o, 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 ot the work by the
Public Works Director / City Engineer, to give good and adequate warning to the traveling public ol
each and every dangerous condition caused by the grading proiect, 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 f urntsh to the Public
Works Director/ City Engineer all reasonable lacilities for obtaining full information respecting the
progress and manner ol work.
SEVENTH: lf the Developer, or his agents or employees, neglects, ref uses, or fails to prosecute
the work with such diligence as to ensure its completion within the specilied time, or within such
extensions ol time as have been granted by the Public Works Director / City Engineer, or if the
Developer violates, neglects, refuses, or fails to pedorm satislactorily any of the provisions of the
plans and specilications, he shall be in detault of this Agreement. The Public Works Director / City
Engineer shall have the power to terminate all rights ol the Developer because of such default, but
said termination shall not affect or terminate any rights ol City as against Developer or any surety
then existing or which thereafter accrue because of such delault. The determination o{ the Public
Works Director / City Engineer of the question as to whether any ol the terms of this Agreement or
the plans and specittcations have been violated or have not been perlormed 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 Ioregoing 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 ol the work required by this Agreement.
EIGHTH: The Developer agrees to f ile with City prior to the date thrs 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 lor the
faithf ul 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 lurther agrees that
if 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 sufficient sureties or increase
the amount oI the security, within ten days after being notified by the Public Works Director / City
Engineer that the sureties or amounts are insuffrcient.
Notwithstanding any other provision herein, if Developer fails to take such action as is necessary to
comply with said notice, he shall be in detault 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 amounl of the bonds or both.
NINTH: lt is f urther agreed by and betlveen 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 of time may be granted lrom 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 lurther 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 ol time as may be granted thereon.
TENTH: Upon the satislactory completion and final approval of said work by the Public Works
Director/ City Engineer, l]!ll!]Q[of the security applicable thereto shall be released or returned
by the City to the Developer within 30 days. Of the remaining lq!-Jq@:,gg 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 il any part, term or provision ol
this Agreement is determined by the Courts to be unlawJul and void, the validity of the remaining
portions shall not be affected and the rights and obligations ol 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 wrll 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 ot the Public Works Director / City Engineer, who will issue a ruling.
FOURTEENTH: The grading operation shall obtain a Construction General Permitfrom the State of
California Regional Water Quality Control Board and conlorm 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.
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SIXTEENTH: The City may elect to perform geotechnical qualrty assurance of the grading
operation, which will be eompensated 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.
Arly Developer
City of Meniiee
29844 Haun Road
Menijee, CA 92586
Pulte Home Co. LLC
27401 Los Altos
Suite 400
Mission Viejo, CA 92691
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 lees, 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
attempt to do so shall be null and void, and any assignee, hypothecate, or transteree shall acquire
no right or interest by reason of such attempted assignment, hypothecate, or transJer. 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 lorm, and containing such surely, 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 lorm of linancial 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 il all ol the parties had
executed the same instruments.
TWENTY-THIRD: This Agreement is to be governed by the laws ol the State of California
NINETEENTH: This Agreement contains the entire agreement ol the parties as to the matters set
forth herein. No waiver of any term or condition of this Agreement shall be continuing waiver
thereof.
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IN WITNESS WHEREOF, DEVELOPER HAS AFFIXED HI ME. ADDRESS AND SEAL.
Dated:*-t./9 ,2021
By
Dated:,2021 CITY OF MENIFEE
Daniel Padilla, City Engineer
SIGNATURES OF OWNER MUST BE AKNOWLEDGED BY NOTARY
AND EXECUTED IN TRIPLICATE
By
By
DARREN WARREN
Vica Pruidant Llndloq8Litom & ^rtlbFnG t
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