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Image_523This Agreement for Construction of Road and Drainage lmprovements ("Agreement") is made and entered into by and between the City of Menifee, State of California, hereinafter called City, and Pulte Home Co.LLC , a Limited Liability Company, hereinafter called Developer. WITNESSETH: FIRST: Developer, as part of the City's consideration of the final map for that certain land division known as.@'herebyagrees,atDeveloper,SowncoStandexpenSe,tofurnisha|llabor,eguipment and materials necessary to perform and complete, within Seven Hundred and Thirtv Davs irom the date this Agreement is executed, in a good and workmanlike manner, all road and drainage improvements in accordance with those Road Plans for said land division which have been approved by the City Engineer, a copy ol which are on file in the office of the City of Meni{ee Engineering Department, and do all work incidental thereto in accordance with the standards set forth in 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. All the above required work shall be done under the inspection ol and to the satislaction of the City Engineer, and shall not be deemed complete until approved and accepted in writing as complete by the City Engineer. Developer lurther agrees to maintain the above required improvements lor a period of one year following acceptance by the City, and during this one year period to repair or replace, to the satisfaction of the City Engineer, any detective work or labor done or delective materials furnished. Developer further agrees that all underground improvements covered by this Agreement shall be completed prior to the paving of any roadway.TheeStimatedcoStofSaidworkandimproVementSiStheSumof@ Thousand and no/100 Dollars, $ 1.114,000.00, ("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 lor the lawful construction ol the work and perlormance of Developer's obligations under this Agreement. Developer shall conduct the work in tull compliance 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 construction ol the work performed pursuant to this Agreement, including, but not limited to fees for checking, filing, and processing of improvement plans and speciJications and for inspectlng the construction ol 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 relerred 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 ol the road and drainage improvements, all costs and reasonable expenses and fees incurred by City in successfully enforcing such obligatlons shall be paid by Developer, including reasonable attorney's fees, and that, upon entry of judgment, 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 lor making any payment ancl/or taking any action required by any suchjudgment. THIRD: City shall not, nor shall any officer or employee ol City, be liable or responsible for any accident, loss, injury, or damage happening or occurring to the works specilied in this agreement prior to the completion and acceptance thereo{, nor shall City or any officer or employee thereof, be liable lor any persons or property injured or damage by reason ol the nature of the work, or by reason ol the acts or omissions of Developer, iti 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 officials, officers, employees, agents, and volunteers from any and all actual or alleged claims, demands, causes of action, liability, loss, administrative action ol any federal, state, or local government body or agency, arising out of or incideni to any AGREEMENT TRACT 28206-3 FOR THE CONSTRUCTION OF ROAD/DRAINAGE IMPROVEMENTS 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 ol all penalties, fines, judgments, awards, decrees, attorneys'fees, and related costs or expenses, and the reimbursement of City, its elected oflicials, officers, employees, 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, liabilily, 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 .iurisdiction. Developer's obligation to indemnify shall survive the expiration or termination ol this Agreement, and shall not be restricted lo 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 division 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'lees and litigation cost) ("Completion Costs") incurred by the City in connation with ensuring that the work contemplated by this Agreement. 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 Cost. 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 Cost. FIFTH: The Developer shall provide adequate notice and warning to the kaveling public of each and every hazardous or dangerous condition caused or created by the conslruction of the works ol improvement at all times up to the completion and formal acceptance oI the works ol improvement. The Developer shall protect all persons lrom 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 lorty eight (48) hours before beginning any work. Developer shall provide the City Engineer or his designee reasonable access to facilities lor obtaining full intormation with respect to the progress and manner of work and shall f ully cooperate with any investigation regarding the same. SEVENTH: ll Developer, its agents or employees, neglects, refuses, or farls to prosecute the work with such diligence as to insure 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 pedorm satistactorily any of the provisions of the plans and specifications, Developer shall be in default of this Agreement and notice ol such default shall be served upon Developer. City shall have the power, on recommendation of the City Engineer, to terminate all rights oI Developer as a result of such default. The determination by the City Engineer of the question as to whether any of the terms ol the Agreement or specifications have been violated, or have not been performed satisfactorily, shall be conclusive upon the Developer, 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 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 ot the improvements required by this Agreement. EIGHTH: Developer agrees to file with City, prior to the date that this Agreement is executed, both agood and sufficient improvement security in an amount not less than the Estimated Costs o{ the work andimprovements for the faithtul pertormance of the terms and condittons of this Agreement, and good and suff icient security for payment of labor and materials in the amount prescribed by Article XVll of hiverside County Ordinance 460 as amended to secure the claims to which reference is made in Title 15 (commencing with Section 3082) of Part 4 ol Division 3 of the Civil Code ol the State ol California. Developer agrees torenew each and every said bond or bonds with good and suflicient sureties or increase the amounf 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, if 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 ol the bonds or both. NINTH: lt is further agreed by and between the parties hereto, including the surety oI 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 ol time may be granted in writing, lrom time to time, by City, either at its own option, or upon request of Developer, and such extensions shall in no way atlect 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 lull lorce and effect during the terms of this Agreement, including any extensions of time as may be granted therein. 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 unlawful 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. TWELFTH: ln any action or proceeding arising out of this Agreement, or the transaclions contemplated hereby, the prevailing party therein shall be entitled to recover from the other party thereto the reasonable attorneys'and paralegals' fees, courl 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 ol the parties hereto warrant that they are duly authorized to execute this Agreement on behalt 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 without prior written consent ol 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 transier. Unless specifically stated to the conkary 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 t 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. SIXTEENTH: Developer shall perform all work contemplated by this Agreement in accordance with all approved maps, conditions, plans, specifications, standard drawings, and special 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, il any, shall perform all work required to construct all work performed pursuant to this Agreement in a skilllul and workmanlike manner, and consistent with the standards general recognized as being employed by professionals in the same discipline in the State of Cali{ornia. Developer represenls and maintains that it or its contractors shall be skilled in the prolessional calling necessary to pedorm the work. Developer warrants that all of its employees and contractors shall have sufficient skill and experience to pedorm the work assigned to them, and that they shall have all licenses, permrts, qualifications, and approvals shall maintained throughout the term of this Agreement. The agreement, hypothecation, or transler shall be to the satislaction ol the City Attorney and shall include provisions requiring the assignee to post bonds or submit another lorm ol {inancial security, satisfactory to City and approved by the City Attorney, to guarantee construction ol the work covered by this Agreement. ELEVENTH: This Agreement contains the entire Agreement oJ the parties as to the matters set forth herein. No waiver of any term or condition ol this Agreement shall be a continuing waiver thereof. The Agreement shall survive the recordation of the Final Map and shall be recorded against each ol the proposed lots to inlorm successors and assigns of the requrred work covered by this Agreement to be constructed and their time frame for construction. Following 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 oi any of the work covered by this Agreement not assigned, hypothecated, or transferred. EIGHTEENTH: This Agreement is to be governed by the laws ol the State of California. 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 lollowing addresses: Axv City of Menifee 29714 Haun Road Menifee, CA 92586 Pulte Home Co. 27401 Los Altos, Suite 400 Mission Viejo, CA 92691 TWENTIETH: City's failure to insist upon strict compliance with any provision of this Agreement or to exercise any right or privilege provided herein, or City's waiver ol 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. SEVENTEENTH: This agreement may be executed by the parties in counterparts, which counterparts shall be construed together and have the same effect as il all of the parties had executed the same instruments. Developer 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. lN WITNESS WHEREOF, Landowner has affixed his name, address and seal oaeo, fitzD tb ,zon By: Sohail Bokhari Director of Land CITY OF MENIFEE athan G. Smith, Public orks Director/ ity Engineer ,201 q ?Dated: CITY OF IUENIFEE By BillZim ATTEST: B By: n, Mayor APPROVED AS TO FORM: By: h ManW tng, City Cler e lvleichin ity Attorney SIGNATURES OF DEVELOPER MUST BE ACKNOWLEDGED BY NOTABY AND EXECUTED IN TRIPLICATE ACKNOWLEDGMENT A notary public or other officer completing this certificate verrfies only the identity of the individual who signed the document lo which this certificate is attached, and not the truthfulness, accuracy, or va lid i of that document State of California County of Orange on 4116118 before me.Maziar Safie Soltani, Notary Public (insert name and title of the officer) personally appeared Sohail Bokhari who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscrabed 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. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal MAaAR SAflE SoLT ilt Nolary Public - Cai,ornia 0range County Commission # 216988( 2z z M Comrn. Ex rres 0c128.202fSignature(Seal) I