2021/08/24 Forestar (USA) Real Estate Group, Inc. Water Improvements TR36852 IP20-027AGREEMENT
TRACT 36852 ilP20-O27
FOR THE CONSTRUCTION OF WATER SYSTEM IMPROVEMENTS
WITNESSETH:
FIRST: Developer, as part of the City's consideration of the final map for that certain land division
known as TR 36852, hereby agrees, at Developer's own cost and expense, to furnish all labor, equipment and
materials necessary to perform and complete, within Seven Hundred and Thirtv Davs from the date this
Agreement is executed, in a good and workmanlike manner, a water distribution system, complete with all
necessary pipes, valves, fire hydrants, connections and appurtenances necessary to the satisfactory operation
of said distribution system, and, further, to extend main or mains from the existing supply system maintained
and operated by Eastern Municioal Water District, to connect with the distribution system described above
with all pipe laid at such a depth as to provide a fully{hirty six inch (36") minimum cover from the top of the
pipe to street grade, unless otheMise specified by the City Engineer, office of the City of Menifee Engineering
Department, and do all work incidental thereto in accordance with the standards set forth an Riverside County
Ordinance No.460 and City Standards and Specifications, as amended, or its successor, which are hereby
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 extensaon. To be effective such notice
must be provided by the City Engineer. Such notice may be provided as specified in Section Nineteenth or vraelectronicmailtoDeveloperat@,AlltheaboverequiredworkShallbedoneunder
the inspection of and to the satisfaction of the City Engineer and shall not be deemed complete until approved
and accepted in writing as complete by the City Engineer and accepted by the above named agency into its
sewer system. Developer further agrees to maintain the above required improvements for a period of one year
following acceptance by the City, and during this one year penod to repair or replace, to the satisfaction of the
City Engineer, any defective work or labor done or defective materials furnished. Developer further agrees that
all underground improvements covered by this Agreement shall be completed prior to the paving of any
roadway. The estimated cost of said work and imp rovements is the sum of Four Hundred Twentv Six
Thousand and no/i00, Dollars, S 426.000.00, ("Estimated Cost"). Prior to commencing any work, Developer
shall, at its sole cost, expense, and liability, obtain all necessary permits and licenses and give all necessary
and incidental notices required for the laudul construction of the work and performance of Developer's
obligations under this Agreement. Developer shall conduct the work in full complrance with the regulations,
rules, and other requirements contained in any permit or license issued to Developer.
SECOND: Developer agrees to pay to City the actual cost of such inspections of the work and
improvements as may be required by the City Engineer. Developer shall, at its sole cost, expense. and liability,
pay all fees, charges, and taxes arising out of constructjon of the work performed pursuant to this Agreement,
including, but not limited to fees for checking, filing, and processing of improvement plans and specifications
and for inspecting the construction of said work. These fees must be paid in full prior to approval of the final
map and improvement plans, unless such fees have not yet been assessed and are not yet due and payable.
The fees referred to the above are not necessarily the only City fees, charges, or other cost that have been or
will be imposed on the subdivision and its development, and this Agreement shall in no way exonerate or
relieve Developer from paying such other applicable fees, charges and/or cost. Developer further agrees that,
if suit is brought upon this Agreement or any bond guaranteeing the completion of the water distribution system
improvements, all costs and reasonable expenses and fees incurred by City in successfully enforcing such
obligations shall be paid by Developer, including reasonable attorney's fees, and that, upon entry ofjudgment,
all such costs, expenses and fees shall be taxed as costs and included in any judgment rendered. Developer,
not the City, shall be legally responsible for making any payment and/or taking any action required by any such
judgment.
This Agreement for Construction of Water System lmprovements ("Agreement") is made and entered
into by and between the City of Menifee, State of California, hereinafter called City, and Forestar (USA) Real
Estate Group. lnc., hereinafter called Developer.
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THIRD: 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 specrfied 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 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, arrsing 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 of construction or maintenance of the work contemplated under
this Agreement, or performance of this Agreement. This indemnification includes, without limitation, the
payment of all penalties, fines, judgments, awards, decrees, attorneys' fees, and related costs or expenses,
and the reimbursement of City, its elected officials, 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 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, officers, employees, agents, or volunteers.
FOURTH: The Developer hereby grants to City, or any agent or employee of City, the irrevocable
permission to enter without any additional consent upon the lands of the subject land divrsion for the purpose
of completing the improvements. This permission shall terminate in the event that Developer has completed
work within the time specified or any extension thereof granted by the City. Under such circumstances,
Developer shall be responsible for any and all 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. 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 Completions 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. The Developer shall provide adequate notice and warning to the traveling public of each and
every hazardous or dangerous condition caused or created by the construction of the works of improvement at
all times up to the completion and formal acceptance of the works of improvement. The Developer shall protect
all persons from such hazardous 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, its agents and employees, shall give written notice to the City Engineer at least forty
eight (a8) hours before beginning any work. Developer shall provide the City Engineer or his designee
reasonable access to facilaties for obtaining full information with respect to the progress and manner of work
and shall fully cooperate with any investigation regarding the same.
SEVENTH. lf Developer, its agents or employees, neglects, refuses, or fails to prosecute the work with
such diligence as to ensure its completion within the specified time, or within such extensions of time which
have been granted by City, or if Developer violates, neglects, refuses, or fails to perform satisfactorily any of
the provisions of the plans and specifications, Developer shall be in default of this Agreement and notice of
such default shall be served upon Developer. City shall have the power, on recommendation of the City
Engineer, to terminate all rights of Developer as a result 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 by the City Engineer of the question as to whether any of the terms
of the Agreement or specifications have been violated, or have not been performed satisfactorily, shall be
conclusive upon the Developer and any surety, and any and all parties who may have any interest in the
Agreement or any portion thereof. The foregoing provisions of this section shall be in addition to all other rights
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and remedies available to City under this Agreement or the law. The failure of the Developer to commence or
complete construction shall not relieve the Developer or surety from completion of the improvements required
by this Agreement.
EIGHTH: Developer agrees to file with City, prior to the date that this Agreement is executed, both a
good and sufficient improvement security in an amount not less than the Estimated Costs of the work and
improvements for the faithful performance of the terms and conditions of this Agreement, and good and
sufficient security for payment of labor and materials in the amount prescribed by Article XVll of Riverside
County Ordinance 460 as amended to secure the claims to which reference is made in Title 3 (commencing
with Section 9000) of Part 6 of Division 4 of the Civil Code of the State of California. Developer agrees to
renew each and every said bond or bonds with good and sufficient sureties or increase the amount of said
bonds, or both, within ten (10) days after being notified by the City Engineer that the sureties or amounts are
insufficient. Notwithstanding any other provisions herein, rf Developer fails to take such action as is necessary
to comply with said notice, Developer shall be in default of this Agreement unless all required improvements
are completed within ninety (90) days of the date on which the City Engineer notified Developer of the
insufficiency of the security 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 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 in writing, from
time to time, by City, either at its own option, or upon request of Developer, and such extensions shall in no
way affect the validity of this Agreement or release the surety or sureties on such bonds. Developer further
agrees to maintain the aforesaid bond or bonds in full force and effect during the terms of this Agreement,
including any extensions of time as may be granted therein.
ELEVENTH: 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 a continuing waiver thereof.
TWELFTH. ln any action or proceeding arising out of this Agreement, or the transactions contemplated
hereby, the prevai|ng 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.
THIRTEENTH: This Agreement may be amended at any time by the mutual consent of the parties by a
written instrument signed by both parties.
FOURTEENTH: The persons executing this Agreement on behalf of the parties hereto warrant that
they are duly authorized to execute this Agreement on behalf of said parties and that, by so executing this
Agreement, the parties hereto are formally bound to the provisions of this Agreement.
FIFTEENTH: Developer shall not assign, hypothecate, or transfer, either directly or by operation of law,
this Agreement or any interest herein wrthout 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 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 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 financial security, satisfactory to City and approved by
TENTH. lt is understood and agreed by the parties hereto that if any part, term or provision of this
Agreement is by the courts held to be unlaMul 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 that particular part, term or provision held to be invalid.
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the City Attorney, to guarantee construction of the work covered by this Agreement. The Agreement shall
survive the recordation of the Final Map and shall be recorded against each of the proposed lots to inform
successors and assigns of the required work covered by this Agreement to be constructed and their time frame
for constructron. Followrng any permitted assignment, hypothecation, or transfer of the work covered by this
Agreement, as set forth in this Section, City shall release Developer from its obligations so assigned and shall
release to Developer any bonds or other security posted to secure the work covered by this Agreement so
assigned; provided, however, that City shall not release any security or undertakings given to secure the
performance of any of the work covered by this Agreement not assigned, hypothecated, or transferred.
SIXTEENTH: Developer shall perform all work contemplated by this Agreement in accordance with all
approved maps, conditions, plans, specifications, standard drawings, and specral amendments thereto on file
with the City, as well as all applicable federal, state, and local laws, ordinances, regulations, codes, standards,
and other requirements. Developer and its contractors, if any, shall perform all work required to construct all
work performed pursuant to this Agreement in a skillful and workmanlike manner, and consistent with the
standards general recognized as being employed by professionals in the same discipline an the State of
California. Developer represents and maintains that it or its contractors shall be skilled in the professional
calling necessary to perform the work. Developer warrants that all of its employees and contractors shall have
sufficient skill and experience to perform the work assigned to them, and that they shall have all licenses,
permits, qualifications, and approvals shall maintained throughout the term of this Agreement.
SEVENTEENTH: 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 same
instruments.
NINETEENTH: 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 following addresses:
Erly Developer
City of Menifee
29844 Haun Road
Menifee, CA 92586
Forestar (USA) Real Estate Group, lnc
2221 E. Lamar Blvd, Suite 790
Arlington, TX 76006
TWENTIETH: City's failure to insist upon strict compliance with any provision of thrs
Agreement or to exercise any right or privilege provided herein, or City's waiver of any breach of this
Agreement, shall not relieve Developer of any of its obligations under this Agreement, whether of the
same or similar type. The foregoing shall be true whether City's actions are intentional or
unintentional.
TWENTY-FIRST: Each and all of the covenants and conditions shall be binding on and shall
inure to the benefit of the parties, and their successors, heirs, personal representatives, or assigns.
This Section shall not be construed as an authorization for any party to assign any right or obligation.
EIGHTEENTH: This Agreement is to be governed by the laws of the State of California.
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lN WITNESS WHEREOF, Developer has affixed his name, address and seal
Dated: AA*.-r a$t ,2021
NametA;/o o.H
Dated
CITY OF MENIFEE
,2021
Signature
L.'Vo
Title
CITY OF MENIFEE
Yolanda Macalalad, Acting City Engineer
By:
Bill Zimmerman, Mayor
ATTEST:
By
By
APPROVED AS TO FORM
By
Sarah Manwaring, City Clerk Jeffery T. Melching, CityAttorney
By: Forestar (USA) Real Estate Group, lnc.
l)c--n rp t C-- Sc^r-tt>L
I
SIGNATURES OF DEVELOPER MUST BE ACKNOWLEDGED BY NOTARY
AND EXECUTED IN TRIPLICATE
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lN WITNESS WHEREOF, Developer has affixed his name, address and seal
Dated: _,2021 By: Forester (USA) Real Estate Group
Dated:,2021 CITY OF MENIFEE
By
Daniel Padilla, City Engineer
CITY OF MENIFEE
By
Armando G. Villa, City Manager
ATTEST:
By
APPROVED AS TO FORM:
By
Sarah A. Manwaring, City Clerk Jeffrey T. Melching, CityAttorney
SIGNATURES OF DEVELOPER MUST BE ACKNOWLEDGED BY NOTARY
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