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HomeMy WebLinkAboutAGENDA REPORT 1999 0120 CC REG ITEM 10MCITY OF MOORPARK AGENDA REPORT ITIE-J I",D-* CITY OF MOORPARK, CALIFORNIA City Council Meeting of 1 " j 0 - -41.1 ACTION: Aurcwd BY: TO: The Honorable City Council FROM: Dirk Lovett, Assistant City Engineer (Prepared by Matt Gaspar, Engineering Department) DATE: January 8, 1999 (City Council meeting of January 20, 1999) SUBJECT: Consider the Approval of an Early Grading Agreement to Allow Construction of Tentative Tract 4980 - 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, including 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 grading /site improvement plan has been plan checked and is ready for approval. The final map has yet to be approved. In an attempt to meet its construction schedule, Lennar is requesting to commence with the grading and construction of improvements prior to approval of the final map for Tentative Tract 4980. 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 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. 0001.38 HONORABLE CITY COUNCIL EARLY GRADING AGREEMENT JANUARY 20, 1999 PAGE 2 Since, the final map is not ready for approval, an "Agreement for Construction of Subdivision Improvements and Reimbursement" cannot be recorded. Therefore, to allow Lennar Homes of California to start construction, staff has prepared an "Early Grading Agreement" (Agreement) for the Council's 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. Per the Agreement, all conditions of approval for Tentative Tract 4980 shall be complied with. This includes condition numbers 46 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 be hydroseeded or planted within 30 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. On May 22, 1998, the City Council approved an "Early Grading Agreement" to allow construction of Tentative Tract 4977. 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), 20(1) and 20(K). The additional section 20(H) states that the "Early Grading Agreement" shall remain in full force an effect until all improvements are accepted as completed by the City Engineer and all sureties are exonerated. Section 20(I) states that the Developer shall make each required payment to a City invoice within 10 days of receipt. Section 20(1) states that the Surety or other guarantor shall acknowledge the "Early Grading Agreement" covers an irrevocable bonds of determined amounts. Section 20(K) states that all fees, deposits, and bonds are based on preliminary cost estimates and are subject to change pursuant to the final approved plans. Attached is the proposed "Early Grading Agreement" for review and approval. 0001W) HONORABLE CITY COUNCIL EARLY GRADING AGREEMENT JANUARY 20, 1999 PAGE 3 STAFF RECOMUMDATION 1. Authorize the construction of improvements on Tentative Tract 4980, 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" subject to final language approval by the City Attorney and City Manager. 3. Authorize the City Clerk to forward the "Early Grading Agreement ", upon obtaining the necessary signatures, to the County Recorder for recordation. 0001.40 TEN TA TI VE TPA C T 4980 Tyav- -� 9977 EXHIBIT "A" Traci 9973 V/C/N/ T Y MAP NO SCALE T�ac+ 9q76 Trac% 015' '00" ��O`l '19* 0001.4. 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 , 1999 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 parry 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- 10584) 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. 4980 (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- 10584) have been approved by the City, and as such may alter the grading and improvement plans (98 -ML- 10584). 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 and between the parties hereto as follows: GRADING AND CONSTRUCTION OF IMPROVEMENTS Developer, at its sole cost and expense, may 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 -10584 (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 4980 and this Agreement. Prior to construction of Improvements, Developer shall pay all plan check and inspection fees, case processing fees and deposits for 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 permit. 0001.42 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- 10584) 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. Developer shall complete 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 4980. 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. The Developer shall file with the City, security for the faithful performance of the Improvements to be constructed by Developer pursuant to this Agreement and separate security (except for grading and monuments) for payment of laborers and materialmen who furnish labor or materials to those improvements. Each security shall be good and sufficient on forms approved by the City. 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. 0001.43 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. 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 4980 stating that Developer has made all arrangements required and necessary to provide the public utility service to TTM 4980. For purposes of this paragraph, the term "public utility" shall include, but not 0001.44 necessarily be limited to, a company providing natural gas, water, sewer, electricity, telephone, and cable television. 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.F. 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 0001.45 A. General (Public) Liability not less than the following amounts: $1,000,000 bodily injury, including wrongful death —each person; $5,000,000 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 0001,46 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 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 provisions 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 parry 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 Homes of California, Inc. 6767 Forest Lawn Drive, Suite 300 Los Angeles, California 90068 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 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. 6 000147 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. 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 parry 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 remainder 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 and effect until all Improvements are accepted as complete by the City Engineer, and until such time that all securities listed in Section 5 of this Agreement are completely exonerated by the City. 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 13% increase Total Grading/Erosion Performance $606,940 $60,694 $86,792 $754,426 Drainage Performance $685,622 $68,562 $98,043 $852,227 Drainage Payment $685,622 $68,562 $98,043 $852,227 Street Performance $793,622 $79,362 $113,487 $986,471 Street Payment $793,622 $79,362 $113,487 $986,471 Monuments Performance $101 ,710 $0 $13,222 $114,932 Trail Performance $23,000 $2,300 $3,289 $28,589 Trail Payment $23,000 $2,300 $3,289 J$28,589 Grand Total $3,713,138 $361,142 $529,652 1$4,603,932 600148 K. All fees, deposits and bonds discussed herein are based on preliminary cost estimates and are subject to change at the City's sole determination based on the final approved plans. 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 (Robert Santos, Vice President) "DEVELOPER" CITY OF MOORPARK, a municipal corporation of the State of California Attest: (Patrick Hunter, Mayor) (CITY CLERK) "CITY" (Seal) 000145 TEN TA TI VE TRACT 4980 rrac-� 9977 EXHIBIT "A" Trctc+ 9173 VICINI T Y MAP NO SCALE Trac +9876 -rr ac- 4975' '001" PPO "IN VOVlL�(+'