HomeMy WebLinkAboutAGENDA REPORT 1998 0603 CC REG ITEM 10H T
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CITY OF MOO"AW CALIFORNIA
AGENDA REPORT City Council Meeting
CITY OF MOORPARK of (p ' 'j -qg
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TO: THE HONORABLE CITY COUNCIL p rn rn end G i p rJ
FROM: DIRK LOVETT, ASSISTANT CITY ENGINEEjy: ,
Prepared by: David Grantham, Assistant Engineer
DATE: MAY 22, 1998 (CC MEETING OF JUNE 3, 1998)
SUBJECT: CONSIDER THE APPROVAL OF AN EARLY GRADING
AGREEMENT TO ALLOW CONSTRUCTION OF TENTATIVE
TRACT 4977 - LENNAR HOMES OF CALIFORNIA
BACKGROUND
On October 2, 1996,the City Council passed Resolution 96-1230 approving Tentative Tract Maps
4975,4976, 4977 and 4980, filed by C.T. Financial along with the respective conditions of
approval for each residential development. These tracts are located south of New Los Angeles
Avenue,north of Tierra Rejada Road,west of the 23 Freeway and east of Spring Road. A vicinity
map is attached for reference. C.T. Financial has since sold the land encompassing Tentative
Tracts 4975,4976,4977 and 4980 to Lennar Homes of California. Lennar Homes will be
constructing the residential developments in accordance with Resolution 96-1230.
The site improvement plans and the final maps are currently being plan checked by staff.
In an attempt to meet its construction schedule,Lennar has requested to commence with the
grading and construction of improvements prior to approval of the final map for Tentative Tract
4977.
DISCUSSION
It is the usual practice to approve and record an"Agreement for Construction of Subdivision
Improvements and Reimbursement" at the time the final map is approved by the City and is
recorded at the Ventura County's Recorders Office. This"Agreement for Construction of
Subdivision Improvements and Reimbursement"contractually obligates the developer to construct
the improvements required by the conditions of approval for that development.
Since, the final map is not able to be approved at this time, an "Agreement for Construction of
Subdivision Improvements and Reimbursement"cannot be recorded. Therefore, to allow Lennar
Homes to start construction,staff has prepared an "Early Grading Agreement" (Agreement) for
Council review and approval. This Agreement effectively replaces the"Agreement for
Construction of Subdivision Improvements and Reimbursement"until such time as an "Agreement
for Construction of Subdivision Improvements and Reimbursement"can be approved and
recorded. This Agreement also requires the improvement plans to be approved by all applicable
City departments and public agencies plus the submittal of surety to guarantee completion of the
improvements.
As stated in the Agreement, all conditions of approval for Tentative Tract 4977 are to be complied
with. This includes condition numbers 45 and 55 which relate to erosion control and ground
cover. These conditions state that all graded slopes visible off site are to be hydroseeded
immediately upon completion and all other graded slopes are to hydroseeded or planted within 30
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days of completion. All hydroseeding and erosion control must meet the approval of the Director
of Community Development and the City Engineer. Erosion control and hydroseeding costs have
been included in the improvement sureties.
It is important to note that as stated in the Agreement,neither the improvement plan review or the
geotechnical and geologic review have been completed. City approval of both from all applicable
department's is required prior to the issuance of the grading permit.
Approval of the Agreement will also approve the import of 45,000 cubic yards of soil from
Tentative Tract 4975 to Tentative Tract 4977. The conditions of approval for Tentative Tract 4977
state that City Council approval is required for importlexport operations in excess of 12 total truck
loads.
Attached is the proposed"Early Grading Agreement"for review and approval. The"Early
Grading Agreement'' was based on a similar agreement, "Improvement Agreement,"between the
City and Carlsberg as it related to the grading and development of the Mesa Verde school site prior
to recordation of Final Maps 4973 and 4974. The differences between this proposed Agreement
and the"Improvement Agreement" are due to the specific conditions and requirements relating to
each development and the addition of sections 20(H),20(I),20Q) and 20(K).
RECOMMENDATION:
1. Authorize the construction of improvements on Tentative Tract 4977, subject to all
conditions of approval and conformance with the approved Tentative Tract and "Early
Grading Agreement."
2. Authorize the Mayor to sign the"Early Grading Agreement."
3. Authorize the City Clerk to forward the"Early Grading Agreement", upon obtaining the
necessary signatures, to the County Recorder for recordation.
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Recording Requested by and Return to:
City Clerk
City of Moorpark
799 Moorpark Avenue
Moorpark,California 93021
CITY OF MOORPARK
EARLY GRADING AGREEMENT
This Early Grading Agreement(hereinafter"Agreement"), made and entered into this
day of , 1998,by and between LENNAR HOMES OF CALIFORNIA, INC. a
California corporation, the party of the first part(hereinafter referred to as "Developer"), and CITY
OF MOORPARK, a municipal corporation of the State of California,the party of the second part
(hereinafter referred to as "City").
WHEREAS,Developer is the owner of,and has prepared and submitted for plan review,
grading and improvement plans (Plan number 98-ML-10583 and 98-ML-10585) for the Lennar
Homes of California property in the City.
WHEREAS,Developer desires to obtain permission to perform construction on the site as
shown on Tentative Tract Map No. 4977 (Property)prior to the City's approval of the final map
for that portion of the improvement plans as described in Paragraph 1 below and shown in Exhibit
"A", and has agreed to enter into this Agreement; and
WHEREAS,the grading and improvement plans (98-ML-10583) and the geotechnical and
geologic reports for TTM 4977 have not yet been approved by the City, and as such may alter the
grading and improvement plans (98-ML-10583).
WHEREAS,the herein referenced Exhibit"A" shall be recorded as part of this Agreement.
NOW,THEREFORE, in consideration of the issuance of an early grading permit to Developer
by City,it is agreed by the by and between the parties hereto as follows:
1. GRADING AND CONSTRUCTION OF IMPROVEMENTS
Developer, at its sole cost and expense,may import 45,000 cubic yards of soil from TTM
4975, grade(including excavation, spreading and compacting) and construct those improvements
related to grading,street, storm drain, landscaping,habitat restoration and erosion and
sedimentation control shown on the grading and improvement plans numbered 98-ML-10583 and
98-ML-10585 (hereinafter referenced as Improvements) in the proposed improvement area(as
shown as crosshatched area in Exhibit "A"). Developer shall conform with all conditions of
grading and construction(prior to and during) as approved with TTM 4977 and this Agreement
except those conditions waived or deferred in writing by the City Manager and/or Mayor.
Prior to construction of Improvements,Developer shall pay all plan check and inspection fees,case
processing fees and deposits per the City's fee/deposit schedule. Developer shall also receive City,
County, State and all other public or private agency approvals and permits for any work to be
performed within their respective properties or areas of interest. City approval of the geotechnical
and geologic reports and Improvement plans are required prior to the issuance of an early grading
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permit. City approval of plans for Improvements does not warrant that other public agency
requirements or standards have been met. It is Developer's responsibility to satisfy all
requirements of all public agencies and provide verification of such prior to commencement of the
construction allowed by this Agreement.
2. CHANGES IN PLANS
All Improvements shall be constructed in accordance with the grading and improvement
(98-ML-10583 and 98-ML-10585)plans and Exhibit"A" as discussed in paragraph 1 above, all
applicable City standards and regulations and all accepted construction practices, as determined by
the City Engineer.
Developer warrants that the plans for Improvements,as originally submitted by Developer,
accomplish the work covered by this Agreement. However,the parties contemplate that certain
corrections and revisions to the originally submitted grading and improvement plans may be
necessary to comply with said City standards and regulations, conditions of approval, and said
accepted construction practices. Developer shall complete any such corrections and revisions prior
to final approval of any work by the City Engineer and shall conform all work performed under
this early grading permit to the finally approved plans for Improvements.
Should the grading and improvement plans prove to be inadequate in any respect, as
determined by City in its sole discretion, then Developer shall make such changes as are necessary
to ensure, to the satisfaction of the City Engineer,that such Improvements are constructed in
accordance with said City standards and regulations,said accepted construction practices, and
approved Conditions of TTM 4977.
3. SURETY BONDS
Prior to commencement of any work under this Agreement,Developer shall furnish to City
valid and sufficient bonds,executed by a corporation authorized to transact business in the State of
California on forms approved by City and with Developer as principal,for the completion and
maintenance of the Improvements in accordance with this Agreement. Should any bond amount
become insufficient in the opinion of the City, Developer shall increase said bond in an amount
satisfactory to City within ten(10)days after receiving written notice from City, which notice can
be given at any time by City.
Without notice and until exonerated by the City Council,each bond shall be renewed on a yearly
basis and shall be increased in amount equivalent to the Consumer Price Index--All Urban
Consumers--Greater Los Angeles Area for the twelve (12) months that end three (3)months prior
to the month in which the bond is renewed. All of the obligations of Developer under this
Agreement shall be met to the satisfaction of City prior to release of all of the bonds. All premiums
and costs related to provision of the bonds required by this Agreement shall be the responsibility of
Developer.
4. TIME FOR COMPLETION
Developer shall complete the grading and drainage portion of the Improvements no later than
fifteen(15)months from the City Council approval of this Agreement. All Improvements shall be
completed prior to City acceptance and reduction/exoneration of sureties.
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5. FINAL INSPECTION OF IMPROVEMENTS
The City Engineer or his duly authorized representative,upon request of Developer, shall
inspect the Improvements. As Improvements are determined to have been constructed in
accordance with the provisions of this Agreement,the City Engineer shall accept the final
inspection.
Developer agrees to pay for all inspection services performed on behalf of City and for the
consulting soils engineer and geologist hired by City for the area as shown in Exhibit"A".
Developer agrees that no final inspection will be made by the City Engineer until City receives full
payment for all related City inspection services,consulting soils engineer and geologist services
and any City administrative costs.
6. PROTECTION OF IMPROVEMENTS
At all times during the construction of Improvements,Developer shall take all such precautions
as may be necessary to protect the site from all members of the public and protect all public and
adjacent property from debris and damage.
7. GUARANTEE OF IMPROVEMENTS
Developer shall guarantee against defective labor and materials for a period of one year
following acceptance by City of the final inspection report pursuant to Paragraph 5.
In the event any such Improvements are determined to be defective within the time provided herein,
Developer shall repair, replace, or reconstruct the defect without delay and without cost or expense
to City and shall pay all City costs for plan check,inspection and administration related to this
requirement within thirty (30) days after receipt of City's invoice. Should Developer fail to act
promptly or in accordance with the requirements of this paragraph, or should the exigencies of the
situation require that repair, replacement or reconstruction work be performed before Developer
can be notified,City may, at its option,make or cause to be made the necessary repair,replacement
or reconstruction. Developer and its surety shall be obligated to pay City for the actual cost of such
work together with the cost of the time incurred by the City Engineer,City Attorney, Public Works
Director and other City staff in connection therewith plus fifteen percent(15%)of all such costs.
8. AS BUILT DRAWINGS
Developer shall keep accurate records on a set of blue lined prints of all City approved
additions to and deletions from the work, and of all changes in location,elevation and character of
the work,not otherwise shown or noted on the approved grading and improvement plans. Prior to
City's final inspection of the Improvements,Developer shall transfer this information to a final set
of"as builts" and deliver them to the City Engineer for approval and retention.
9. UTILITY ARRANGEMENTS
Prior to commencement of any work under this Agreement,Developer shall file with the City
Engineer a written statement signed by the Developer and each public utility serving TTM 4977,
stating that Developer has made all arrangements required and necessary to provide the public
utility service to TTM 4977. For purposes of this paragraph,the term "public utility" shall include,
but not necessarily be limited to, a company providing natural gas, water, sewer,electricity,
telephone, and cable television.
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10. AGREEMENT OBLIGATION COSTS
In the event that the Developer fails to perform any obligations hereunder,Developer agrees to
pay all costs and expenses incurred by the City in securing performance of such obligations, in
addition to cost of suit and reasonable attorney's fees as provided by Paragraph 20.17. hereof.
11. BINDING ON SUCCESSORS IN INTEREST
All provisions of this Agreement shall run with the land and shall be binding on the parties and
their executors, administrators, assigns and successors in interest.
12. DEVELOPER NOT AGENT OF CITY
Neither Developer nor any of Developer's officers, agents, servants or employees are or shall
be considered to be agents of City in connection with the performance of Developer's obligations
under this Agreement.
13. DEFEND INDEMNIFY AND HOLD HARMLESS
Developer shall defend with legal counsel selected by City,indemnify and hold harmless the
City and its officers,agents,servants and employees from any loss,claim or cause of action for
injury,including death, to any person whomsoever and for damage to any property whatsoever
resulting from, or connected with the performance of this Agreement,whether such performance
be by Developer or any of its officers, agents, servants or employees or by one or more persons
directly or indirectly employed by, or acting in concert with, any of Developer's agents or
servants.
City does not, and shall not be deemed to, waive any rights against Developer which it may
have by reason of this paragraph because of the acceptance by City, or the deposit with City by
Developer, of any of the insurance policies described in by Paragraph 14 hereof.
The provisions of this paragraph shall apply to all injuries and damages of every kind suffered,
or alleged to have been suffered,by reason of the aforesaid performance of this Agreement,
regardless of whether or not City or any of its officers,employees,servants or agents has
prepared, supplied or approved the plans for Improvements or inspected the Improvements and
regardless of whether or not any of the insurance policies described in Paragraph 14, hereof shall
have been determined to be applicable to any of such injuries or damages.
14. DEVELOPER'S INSURANCE
Prior to the commencement of any work under this Agreement, Developer shall have
obtained the following insurance coverage and insurance certificates reflecting coverages,
approved by City as to form, amount and carrier. Each policy shall include an endorsement
naming the City and its officers and employees and the City Engineer and City Attorney as
additional insured. Developer shall also concurrently furnish the City satisfactory evidence that
each carrier will notify City in writing,at least thirty (30) days prior to any policy cancellation or
coverage reduction.
a. General (Public) Liability not less than the following amounts:
$1,000,000 bodily injury, including wrongful death - each person; $5,000,000
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bodily injury- aggregate;$500,000 property damage-each occurrence;
$1,000,000 property damage - aggregate.
b. Auto (Comprehensive) Liability not less than the following amounts:
$1,000,000 bodily injury, including wrongful death-each person;
$5,000,000 bodily injury- aggregate; $200,000 property damage- each
occurrence; $5,000,000 property damage - aggregate.
c. Workers'Compensation Insurance as required by law.
Insurance coverage in the minimum amounts set forth herein shall not be construed to
relieve Developer of liability in excess of such coverage,nor shall it preclude City from taking
such actions against Developer as are available to it under any other provision of this Agreement
or otherwise in law or at equity. Developer shall maintain the insurance required by this
paragraph until all of the surety bonds required by Paragraph 3 hereof have been released in
accordance with the provisions of that paragraph. All insurance policies required herein shall be
written on an occurrence basis.
15. NO ASSIGNMENT WITHOUT CONSENT
Developer shall not have the right to assign or transfer this Agreement, or any part hereof,
without the prior written consent of City.
16. NOTICE OF BREACH AND DEFAULT
City may serve written notice upon Developer and Developer's surety of any breach of
any portion of this Agreement and the default of Developer if any of the following occur:
Developer refuses or fails to obtain prosecution of the work, or any severable part thereof,with
such diligence as will insure its completion within the time specified,or fails to obtain
completion of said work within the time;Developer is adjudged a bankrupt;Developer makes a
general assignment for the benefit of Developer's creditors, a receiver is appointed in the event
of Developer's insolvency; or Developer,or any of Developer's officers, agents, servants or
employees should violate any of the provisions of this Agreement.
17. BREACH OF AGREEMENT: PERFORMANCE BY SURETY OR CITY
In the event notice is given as specified in Paragraph 16 Developer's surety shall have the duty
to take over and complete the Improvements in accordance with all of the provisions of this
Agreement;provided,however, that if the surety, within five (5) days after the serving upon it of
such notice, does not give City written notice of its intention to so take over and complete the
Improvements or does not commence the performance thereof within twenty(20) days after notice
to City of such election,City may take over the work and prosecute the Improvements to
completion,by contract or by any other method City may deem advisable. In such event,City,
without any liability for so doing,may take possession of, and utilize in completing the
Improvements,such materials, tools,equipment and other property belonging to Developer as may
be on the site of the work and necessary therefore. Developer and its surety shall be obligated to
pay City the actual cost of such work together with the cost of the time incurred by the City
Engineer,City Attorney,Public Works Director and other City staff in connection therewith plus
fifteen percent(15%)of all such costs. The rights of City provided by this paragraph are in
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addition to and cumulative to any and all other rights of City as provided by law or equity, and any
election by City to proceed pursuant to the provisions of paragraphs 15 or 16 hereof shall not be
construed as being in lieu of any other such rights.
18. EFFECT OF WAIVER
No waiver of any provision of this Agreement shall be deemed, or shall constitute, a waiver of
any other provision, whether or not similar; nor shall any such waiver constitute a continuing or
subsequent waiver of the same provision. No waiver shall be binding,unless executed in writing
by the party making the waiver.
19. NOTICES
Unless otherwise provided, all notices or other documents herein required shall be in writing
and shall be delivered in person or by mail. Notices shall be deemed delivered and received upon
receipt by personal service or upon deposit in the United States mail;certified or registered, return
receipt requested with postage prepaid. Any party may change its address by notice in writing to
the other party and thereafter notices shall be addressed and transmitted to the new address.
Unless otherwise changed, notices required to be given to City shall be addressed as follows:
City Clerk
City of Moorpark
799 Moorpark Avenue
Moorpark,California 93021
Unless otherwise changed,notices required to be given to Developer shall be addressed as
follows:
Mr. Robert Santos, Vice-President
Lennar Domes of California,Inc.
15300 Ventura Blvd, Suite 500
Sherman Oaks,CA 91403
20. MISCELLANEOUS
A. This Agreement constitutes the entire agreement of the parties concerning the subject matter
hereof and all prior agreements or understandings, oral or written, are hereby merged herein. This
Agreement shall not be amended in any way except by a writing expressly purporting to be an
amendment, signed and acknowledged by the parties hereto.
B. City's failure to perform its obligations under this Agreement shall not constitute a default
under this Agreement if the nonperformance is the result of a court order. Developer's obligations
under this Agreement shall be abated during the period of such court order.
C. The position taken by City in any litigation brought by City against, or against City by a
third party shall not constitute a default under this Agreement,irrespective of the fact that City's
position may be adverse to Developer's rights under this Agreement.
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D. This Agreement is made,entered into, and executed in Ventura County,California, and any
court action arising from this Agreement shall be filed in the applicable court in Ventura County,
California.
E. Should interpretation of this Agreement, or any portion thereof, be necessary,it is deemed
that this Agreement was prepared by the parties jointly and equally and shall not be interpreted
against either party on the ground that the party prepared the Agreement or caused it to be prepared.
F. In the event any action, suit or proceeding is brought for the enforcement or declaration of
any right or obligation pursuant to this Agreement or as a result of any alleged breach of any
provision of this Agreement, the prevailing party shall be entitled to recover its costs of suit and
reasonable attorney's fees from the losing party, and any judgement or decree rendered in such a
proceeding shall include such an award.
G. If any term, covenant,condition or provision of this Agreement is found by a court of
competent jurisdiction to be invalid,void,or unenforceable the reminder of this Agreement shall
nonetheless remain in full force and effect to the full extent allowed by law.
H.This Agreement shall remain in full force an effect until all Improvements are accepted as
complete by the City Engineer.
I. In addition to the obligations of Developer as described elsewhere in this Agreement,
Developer shall make each required payment to the City within ten(10) days after receipt of City's
written invoice.
J. This Agreement shall be submitted to Surety or other guarantor in acknowledgement that this
Agreement is covered by an irrevocable Letter of Credit or Performance and Payment bonds in an
aggregate amount of:
Improvement Bond Type Amount 10%Contingency Total
Grading/Erosion Performance $1,150,150 $115,015 $1,265,165
Drainage Performance $589,129 $58,913 $648,042
Drainage Payment $589,129 $58,913 $648,042
Street Performance $677,096 $67,710 $744,806
Street Payment $677,096 $67,710 $744,806
Monuments Performance $75,434 $7,544 $82,978
Grand Total $3,758,034 $375,805 1 $4,133,839
K. All fees, deposits and bonds discussed herein are based on preliminary cost estimates and
are subject to change pursuant to the final approved plans.
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IN WITNESS THEREOF,the parties hereto have executed this Agreement as of the day and year
first above written.
LENNAR HOMES OF CALIFORNIA, INC., a California corporation
By :
(Robert Santos, Vice-President)
"DEVELOPER"
CITY OF MOORPARK,a municipal corporation of the State of California
By:
(Patrick Hunter, Mayor)
Attest:
CITY CLERK (Seal)
"CITY"
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