Image_535AGREEMENT
FOR GRADING AND EROSION CONTROL PROJECTS
FOR TB366s8-4
GP17-073R
This Agreement, made and entered into by and between the city of Menifee, state of
Calilornia, herein called City, and Pulte Home Co. LLC, hereina{ter called Developer.
WITNESSETH
FIRST: Developer, lor and in consideration ol the approval ol a grading plan and the
issuance of a grading permit on that certain land division known as TR36658-4. agrees, at
Developer's own cost and expense, to lurnish all labor, equipment, and material necessary to
perform and complete, and within Z! months from the date this Agreement is executed, to perform
and complete in a good and workmanlike manner, said grading in accorda nce with the grading
plans lor the development ol said land division which have been approved by the, Public Works
Director / City Engineer, and are on lile in the City, and do all work incidental thereto in accordance
with the standards set forth in City-adopted ordinances, which are express ly made a part of this
Agreement. At its sole discretion, City may extend the period ol time {or com pletion of the work by
providing written notice to Developer ol said extension. To be effective such notice must be
provided by the Public Works Director / City Engineer. Such notice may be provided as specilied in
Section Nineteenth or via electronic mail to Developer at lnput ap icable email ad ress for
Developer contact. 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 ol the grading project is made by the Public Works Director / City Engineer. The estimate d
$cost ol said work is the sum ol Four Million Nine Hundred Ninetv Nine and No/l00 Dollars
4,999,000.00 which covers Elrou gh grading only, tr precise (fine) grading only, tr both rough and
precise (fine) grading.
SECOND: Developer agrees to pay to the City the actual cost ol such inspections oI the work
as may be required by the Public Works Director / City Engineer. Developer turther agrees that iI
suit is brought upon this Agreement or any security guaranteeing the completion of the work, all
costs and reasonable expenses and lees incurred by the City in successfully enlorcing such
obligations shall be paid by Developer, including reasonable atlorney's lees, and that upon entry oI
judgment, such costs, expenses, and fees shall be taxed as costs and included in any judgment
rendered.
THIBD: 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 specified in this
Agreement prior to the completion and acceptance thereof , nor shall City or any oflicer or employee
thereof, be liable for any persons or property injured or damage by reason ol the nature of the work,
or by reason oI the acts or omissions of Developer, its agents or employees, in the perlormance of
the work, and all or said liabilities are assumed by Developer. Developer shall de{end, indemnify,
and hold harmless City, its elected officials, ofticers, employees, agents, and volunteers from any
and all actual or alleged claims, demands, causes of action, liability, loss, administrative action of
any lederal, state, or local government body or agency, arising out of or incident to any acts,
omissions, negligence, or willful misconduct ol Developer, its personnel, employees, agents, or
conlractors in connection with or arising out ol 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, iudgments, awards, decrees,
attorneys'lees, and related costs or expenses, and the reimbursement of City, its elected officials,
officers, employees, volunteers, and/or agents lor all legal expenses, and cost incurred by each ol
them. This indemnification excludes only such portion of any claim, demand, cause ol 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 o, this Agreement, and shall not be restricted to insurance proceeds, tf 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 for the
purpose of inspecting or completing the grading project. This permission shall terminate in the
event that Developei has completed the work within the time specified or any extension thereol
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 ol the date that the City notifies Developer ol such Completion
Costs. Failure to remit the Completron 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 Irom such delective 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 lurnish to the Public
Works Director / City Engineer atl reasonable facilities Ior obtaining full information respecting the
progress and manner ol work.
SEVENTH: ll the Developer, or his agents or employees, neglects, ref uses, or Jails to prosecute
the work with such diligence as to ensure its completion within the specilied time, or within such
extenstons of time as have been granted by the Public Works Director / City Engineer, or if the
Developer violates, neglects, refuses, or fails to pedorm 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 of the Developer because of such default, but
said termination shall not affect or terminate any rights oi 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 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 foregoing provisions of this section shall be in addition to
all rights and remedies available to the City under law or under this Agreemenl. The failure of the
Developer to commence or complete construction shall not relieve the Developer or surety lrom
completion of the work required by this Agreement.
EIGHTH: The Developer agrees to f ile 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 of the Government Code in any amount not less than the estimated cost ol the work for the
laithlul performance 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 o, cash or its equivalent as
determined acceptable by the Public Works Director / City Engtneer. Developer lurther agrees that
if in the opinion of the Cublic Works Director / City Engineer the security becomes insufficient,
Developei agrees to renew each and every security with good and suflicient sureties or increase
the amount 6l the security, within ten days after being notified by the Public Works Director / City
Engineer that the sureties or amounts are insuff icient.
Notwithstanding any other provision herein, if Developer fails to take such action as is necessary to
comply with said notice, he shall be in default of this Agreement unless all .required works
compllted 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 ol the bonds or both.
N INTH: lt is further agreed by and between the parties hereto, including the surety or sureties
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 ol completion ol 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 o, the Developer, and such
extensions shall in no way atfect the validity of this Agreement or release the surety or sureties on
said bonds. Developer lurther agrees to maintain the aloresaid bond or bonds or the issuance of
any instruments or letters ol credit in full force and effect during the terms of this Agreement,
including any extensions ol time as may be granted thereon.
TENTH: Upon the satislactory completton and final approval ol said work by the Public Works
Director / City Engineer, lLll!2lqqqof the security applicable thereto shall be released or returned
by the City to the Developer within 30 days. Of the remaining $457.000.00 security (for Erosion
Cbntrol) shall be retained. The remainder security shall be held until the Calilornia 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 if any part, term or provision of
this Agreement is determined by the Courts to be unlawful and vord, the validity of the remaining
portions shall not be aflected 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 heid to be invalid.
No waiver of any term or condition of this Agreement shall be continuing waiver thereof.
THIBTEENTH: 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 ol the Public Works Director / City Engineer, who will issue a ruling.
FOURTEENTH: The grading operation shall obtain a Construction General Permit from the State ol
California Regional Water Quality Control Board and conform to all requirements. This permit shall
override any conllicting requirements in the City-adopted ordinances.
FIFTEENTH: The Developer shall provide geotechnical quality control ot the grading operation in
accordance with City-adopted ordinances. The geotechnical quality control will be under the
supervision ol a registered geotechnical engineer in the State of California.
SIXTEENTH: The city may elect to perlorm geotechnical quality assurance ol 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 consuliants to perform inspections and quality assurance sampling and
tests.
EIGHTEENTH: Any notice or notices requrred 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.
aXy
City of Menifee
29844 Haun Road
Menifee, CA 92586
Developer
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
thereol.
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 lrom the other party
thereto the reasonable attorneys'and paralegals' lees, courl costs, filing {ees, publication cost and
olher 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 o{ 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
specilically 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 transleree shall expressly assume Developer's obligations hereunder by a written
agreement in a form, and contatning 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 Iinancial security,
satisfactory to City and approved by the City Attorney, to guarantee construction ol 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 ol the State of California.
Pulte Home Co. LLC
27401 Los Altos
Suite 400
Mission Viejo, CA 92691
DocuSign Envelope lO: 345C771F-D2E4-41D1-97E+A5F7169FCB89
IN WITNESS WHEREOF, DEVELOPEH HAS AFFIXED HIS NAME. ADDRESS AND SEAL
Dated., 2021
\caubdoN & Dsvelopm€ri
By
Dated:9/30 /2027 .2021 CITY OF MENIFEE
By
O^;rt tnkbBy:
n a.
SIGNATURES OF OWNER MUST BE AKNOWLEDGED BY NOTARY
AND EXECUTED IN TRIPLICATE
l^t
City Engineer
IN WITN
Dated:
Dated:
EREOF, DEVELOPER HAS AFFIXED E. ADDRESS AND SEAL.
l7 ,2021
By
Acqubi'enc & 9eyeloprnrnt
By:
2021 CITY OF IUENIFEE
By:
Daniel Padilla, City Engineer
SIGNATURES OF OWNER MUST BE AKNOWLEDGED BY NOTARY
AND EXECUTED IN TRIPLICATE
ACKNOWLEDGMENT
State of California
County of ORANGE
on SEPTEMBER 13,202L 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(€) islar€
subscribed to the within instrument and acknowledged to me that he/Eh€lth€y executed the same in
his.lh€#th€iiE authorized capacity(ies), and that by hislhe#thei+ signature(€)on the instrument the
person(s), or the entity upon behalf of which the person(€) 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 CNES ]A DIAl
Notary PubIc - Californla
Ornnq('(ounry
Commrsron { 22J2345
MyComm trpires Feb 25,2022
(Seal)
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validi of that document
)
Signature