Loading...
Image_541AGREEMENT FOR GRADING AND EROSION CONTROL PROJECTS FOR TRs6658-3 GP17-073R 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. THIRD: City shall not, nor shall any otficer or employee of 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 thereof , nor shall Crty or any officer or employee thereof, be liable for any persons or property injured or damage by reason ol 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, oflicers, employees, agents, and volunteers lrom 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 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 perlormance of this Agreement. This indemnification includes, without limitation, the payment ol all penalties, lines, judgments, awards, decrees, attorneys'fees, and related costs or expenses, and the reimbursement of City, its elected officials, WITNESSETH FIBST: Developer, for and in consideration of the approval of a grading plan and the issuance of a gradrng permit on that certain land division known as TR36658-3. 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 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 {or completion 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 notrce may be provided as specif ied in SectionNineteenthorviaelectroniCmailtoDeVeloperat@ 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 estimated cost ol said work is the sum oJ Six Hundred Thirtv Four Thousand Five Hundred and No/l00 Dollars $ 634.500.00 which covers Erough grading only, E precise (fine) grading only, EI both rough and precise (fine) grading. SECOND: Developer agrees to pay to the City the actual cost ol 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 Iees incurred by the City in successfully enlorcing such obligations shall be paid by Developer, including reasonable attorney's fees, and that upon entry of judgment, such costs, expenses, and Iees shall be taxed as costs and included in any judgment rendered. officers, employees, volunteers, and/or agents for all legal expenses, and cost incurred by each ol 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 wrong{ul death, which is caused by the negligence or willful misconduct of city as determined by a coud 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 ofticials, 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 oI 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 Public Works Director / City Engineer. 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 co;templated 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 Completion Coits. Failure to remii 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 traflic 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 f ull inlormation respecting the progress and manner of work. SEVENTH: lf the Developer, or his agents or employees, neglects, reluses, 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 perlolm 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 of City as against Developer or any surety then existing or which therealter accrue because of such default. The determination of the Public Works Director / City Engineer of the question as to whether any ol the terms of this Agreement or the plans and specifications have been violated or have not been per{ormed 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 provrsions ol 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 frle with City prior to the date this Agreement is executed a good and sufficient security as provided in subsections (1), (2) and (3) ol subdivision (a) of Section 66499 of the Government code in any amount not less than the estimated cost of the work for the faithful perlormance ol 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 depostt ol cash or its equivalent as determined acceptable by the Public works Director / city Engineer. Developer f urther agrees that it 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 alter being notified by the Public Works Director / City Engineer that the sureties or amounts are insuff icient. Notwithstanding any other provision herein, il Developer fails to take such action as is necessary to comply with siid notice, he shall be in default ol this Agreement unless all .required works completed within 9O days of the date on which the Public Works Director / City Engineer notifies the Developer ol the insufliciency of the sureties or the amount of the bonds or both' NINTH: lt is Jurther agreed by and between the parties hereto, including the surety or sureties on the bonds or the issuersbf any instruments or letters or credit securing this Agreement that, in the event it is deemed necessary to extend the time ol 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 / Ciiy Engineer either at his own option or upon request of the Developer, and such extensions shall in no wiy 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 eflect during the terms ol this Agreement, including any extensions ol time as may be granted thereon. TENTH: Upon the satisfactory completion and final approval of said work bythe Public Works Director/ City Engineer, $ 177.500 of the security applicable thereto shall be released or returned by the City to the-Developer within 30 days. Of the remaining $457.000.90 security.(for Erosion Cbntrol) shall be retained. The remainder security shall be held until the California Water Ouality 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. Thrs 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 unlav'rful and void, the validity ol the remaining portions shall not be aflected and the rights and obligations of the parties shall be construed and enforced as il 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, who will issue a ruling. FOURTEENTH: The grading operation shall obtain a Construction General Permit from the State of 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 geotechnrcal 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 perlorm 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. Erlv Develepel City of Menifee 29844 Haun Road Menilee, CA 92586 Pulte Home Co. LLC 2740.1 Los Altos Suite 400 Mission Viejo, CA 92691 NINETEENTH: This Agreement contains the entire agreement of the parties as to the matters set forth herein. No waiver o, any term or condition of this Agreement shall be continuing waiver thereof. TWENTIETH: ln any action or proceeding arising out ol this Agreement, or the lransactions contemplated hereby, the prevailing party therein shall be entitled to recover lrom the other party thereto the reasonable attorneys'and paralegals' fees, court costs, Iiling 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 oi 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 oJ such attempted assignment, hypothecate, or transfer. Unless specif ically stated to the contrary in City's written consent, any assignment, hypothecation, or transfer shall not release or discharge Developer lrom 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 lorm ol financial 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 etfect as if all of the parties had executed the same instruments. TWENTY-THIRD: This Agreement is to be governed by the laws o, the State ol Calilornia Docusign Envelope lD: 3A5C771F-D2El-41D1-97E8-A5F716gFCB89 IN WITNESS WHEREOF. DEVELOPER HAS AFFIXED HI E. ADDRESS AND SEAL Dated 5ap.rj . 2021 By rclu6tlo|r5{rrrlrrro',trEfc By Dated.9/30/2021,, 2021 CITY OF MENIFEE By 0^^j,L l^hu^ . City Engrneer SIGNATURES OF OWNEB MUST BE AKNOWLEDGED BY NOTABY ANO EXECUTEO IN TRIPLICATE IN WITNESS WHEHEOF, DEVELOPER HAS AFFIXED HIS E,ADDRESS AND SEAL. Dated:5€?,lf , 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 ACKNOWLEDGMENT A notary public or other off cer completing this certificate verifies only the identity of the individual who signed the document to which this certiflcate is attached, and not the truthfulness, accuracy, or validi State of California County of ORANGE on SEPTEMBER 13,2021 before me, CRESIDA DIAZ, NOTARY PUBUC personally appeared DARREN WARREN who proved to me on the basis of satisfactory evidence to be the person(e) whose name(€) is{ar€ subscribed to the within instrument and acknowledged to me that helGh€l{h€y executed the same in hisll+e#thei+ authorized capacity(i€€), and that by hisA€Ctheir signature(e)+n the instrument the person($, or the entity upon behalf of which the person(e) 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 cntslDA DlAl Nota,y PLrb|( - Califolnia OrilnqI CountY Cornmr!1ron ir 22J2145 My Comnr Irpires F0h 25,2022 ;a Signature A-**Z 2 of that document. ) (insert name and title of the officer) (Seal)