2023/01/23 Boulders Menifee LLC GP22-007 Grading and Erosion Control ProjectsThis Agreement, made and entered into by and between the City of Menifee, State of
California, herein called City, and Boulders Menifee LLC, hereinafter called Developer.
AGREEMENT
FOR GRADING AND EROSION CONTROL PROJECTS
GP22-007 -Menifee Boulders RGP
WITNESSETH
FIRST: Developer, for and in consideration of the approval of
issuance of a grading permit on that certain land division known as
a grading plan and the
cP22-007 - Menifee
Boulders RGP
and material neces
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 providrng 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
Rich@imwtruss.com. All of 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 grading project is made by the Public Works Director / City Engineer. The estimated
cost of said work is the sum of Eighty-Five Thousand Dollars and no/l00 Dollars $ 85,000.00
which covers Erough grading only, E precise (fine) 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 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, including reasonable attorney's fees, and that upon entry of
judgment, such costs, expenses, and fees shall be taxed as costs and included in any judgment
rendered.
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 specified in this
Agreement prior to the completion and acceptance thereof, nor shall City or any offlcer or employee
thereof, be liable for any persons or property injured or damage by reason of the 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 alleged claims, demands, causes of 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 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
agrees, at Develope/s own cost and expense, to furnish all labor, equipment,
sary to perform and complete, and within !! months from the date this
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 UoOy of competent jurisdiction. Developer's obligationto indemnify shall survive the
expiration ortermination of ihis 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 Developeihas completed the work within the time specified or any extension thereof
granted by the Pu6lic Works Director / City Engineer. Under such circumstances, Developer shall
6e 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 thin thirty (30) days of the date that the City notifies Developer of such Completion
Coits. 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 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 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, 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 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 default of this Agreement. The Public Works Director / City
Engineer shall have the power to terminate all rights ofthe Developer because 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 of the Public
Works Director / City 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 the Developer, 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 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 flle 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) of Section
66499 ofthe Government Code in any amount not less than the estimated cost of the work forthe
faithful 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 further agrees that
if in the opinion of the Public Works Director / City Engineer the security becomes insufficient,
Developei agrees to renew each and every security with good and sufficient sureties or increase
the amount 6f 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, if Developer fails to take such action as is necessary to
comply with siid notice, he shall be in default of this Agreement unless all .required works
completed within 90 days of the date on which the Public Works Director/ City Engineer notifies 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 orsureties
on the bonds or the issuers of 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 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 full 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 iinal approval of said work by the Public Works
Director / City Engineer, $ 9,500.00 of the security applicable thereto shall be released or returned
by the City io the Developer within 30 days. The remaining $75.500.00 security (for Erosion
Control) shall be retained, and 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 authonzation for 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 of
this Agreement is determined by the Courts to be unlaMul and void, the validity of the remaining
portions shall not be affected and the rights and obligations ofthe 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 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 the attention of the Public Works Director / City Engineer, whowill issue a ruling.
FOURTEENTH: The grading operation shall obtain a Construction General Permitfrom the State of
California Regional Water Quality Control Board and conform 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.
sIXTEENTH: The city may elect to perform 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.
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
Arlv De
City of Menifee
29844 Haun Road
Menifee, CA 92586
oer
Boulders Menifee LLC
15916 Bernardo Center Drive
San Diego, CA92127
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 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 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 offinancial security,
satisfactory to City and approved by the City Attorney, to guarantee constructlon 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 if all of the parties had
executed the same instruments.
TWENTY-THIRD: This Agreement is to be governed by the laws of the State of California
IN WITNESS WHEREOF, DEVELOPER HAS AFFIXED HIS NAME, ADDRESS AND SEAL.
o*ea' 2A"*hn ux ,2023
By.
By
| -71Dated ,2023 CITY OF MENIFEE
9J IJfuBy:
Daniel Padilla, City Engineer
SIGNATURES OF OWNER MUST BE AKNOWLEDGED BY NOTARY
AND EXECUTED IN TRIPLICATE
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subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s),
or the entity upon behalf of which the person(s) acted, executed the instrument.
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I certify under PENALry OF PERJURY under the laws
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is true and correct.
WITNESS my hand and official seal.
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gignature of Notary Public