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HomeMy WebLinkAboutAGENDA REPORT 2000 0105 CC REG ITEM 11Ei CITY OF MOORPARK AGENDA REPORT - 112,1CO 0116) CITY OF MOORPARK, CALIFORNIA City Council Meeting of ACTT N• TO: The Honorable City Council FROM: Dirk Lovett, Assistant City Engineer Prepared by Rick Valte, Assistant Civil Engineer DATE: December 10, 1999 (CC meeting of 1/5/2000) SUBJECT: CONSIDER APPROVAL OF FINAL MAP TRACT 4977 (LENNAR HOMES /RICHMOND AMERICAN HOMES) BACKGROUND The subject tract is located south of Peach Hill Road and is bordered by Tierra Rejada Road to the south, Spring Road to the west and Science Drive to the east. A location map is attached for your reference (see Exhibit A). Tentative Tract Map 4977 was approved by the City Council on October 2, 1996. Street names for this tract were approved by the City Council on August 19, 1998. On June 3, 1998, Lennar Homes signed an Early Grading Agreement with the City which allowed them to commence construction on the site and obligated them to the conditions and improvements specified in the Tentative Map. Grading of the site commenced on August 5, 1998. DISCUSSION /CONCLUSION The final map for Tract 4977 represents a land division of 57.50 acres into 109 residential lots. There are fifteen (15) open space parcels (OS -1 through OS -15). Parcels designated OS -1 through OS -7 and OS -12 and OS -15 are offered for dedication to the City. The final map has been reviewed by City staff. The map is technically accurate and substantially conforms to the tentative map approved by the City Council. All conditions required for the recordation of this map have been satisfied. Iof4 000296 Subsequent to the commencement of grading, the property was purchased by Richmond American Homes. Lennar Homes has completed rough grading and will complete all grading work. Richmond American Homes will finish the site improvements (street, drainage, and monuments) and construct the houses. As such, Lennar Homes has requested that the original Early Grading Agreement, approved by the City Council on June 3, 1998, be amended such that Lennar Homes' responsibility on the project would be limited to grading. This division of responsibility for construction of this Tract may be accomplished by the following (similar to City action on the approval of the Final Map for Tract 4980): 1. Amending the Early Grading Agreement with Lennar Homes obligating them to bond for and complete all grading operations only, 2. Executing a Standard Agreement for Construction of Subdivision Improvements and Reimbursement with Richmond American Homes obligating them to bond for and construct all other improvements (with the exception of grading) specified in the Tentative Tract conditions of development, and as addressed in the Early Grading Agreement. 3. Releasing Lennar Homes of their obligations under the Early Grading Agreement and exonerating current bonds, except for grading. All obligations of the Early Grading Agreement will be transferred to the respective developers per the agreements listed in 1. and 2. above. 2of4 000298 Current bonds, which guarantee performance by Lennar Homes on file, are as follows: Type Amount Surety Company Bond No. The American Grading $1,265,165.00 Insurance 11133375284 Company The American Monuments $82,978.00 Insurance 11133375318 Company Drainage The American Improvements $648,042.00 Insurance 11133375292 (Performance) Company Drainage The American Improvements $648,042.00 Insurance 11133375292 (Labor & Company Material) Street The American Improvement $744,806.00 Insurance 11133375300 (Performance) Company Street The American Improvement $744,806.00 Insurance 11133375300 (Labor & Company Material) Attached are copies of: the draft amended Early Grading Agreement between the City of Moorpark and Lennar Homes titled "Early Grading Agreement for Lot 2 of Tract Map No. 4974 "; the "Agreement for Construction of Subdivision Improvement and Reimbursement" between the City of Moorpark and Richmond American Homes; and a "Partial Release of Covenant and Agreement" of the current Early Grading Agreement with Lennar Homes. A copy of the final map is on file at the City Clerk's office. STAFF RECOMMNDATION 1. Approve the Final Map for Tract 4977 along with the Agreement for Construction of Subdivision Improvements and Reimbursement between the City and Richmond American Homes of California, Inc.; 2. Approve the Early Grading Agreement for Lot 2 of Tract Map No. 4974 between the City and Lennar Homes of California, Inc.; 3. Approve the Partial Release of Covenant and Agreement for the Early Grading Agreement with Lennar homes; W4 000299 4. Authorize the Mayor and City Clerk to sign the Final Map Title Sheet, Agreement for Construction of Subdivision Improvements and Reimbursement, Early Grading Agreement for Tract 4977 and, the Partial Release of Covenant Agreement, and 5.Authorize recordation of the Final Map for Tract 4977, the Agreement for Construction of Subdivision Improvements and Reimbursements, Amended Early Grading Agreements and the Partial Release of Covenant and Agreement, subject to City Manager and City Attorney approval of the agreements. 444 000-360 EXMIT A NaLF,S �o Q z i REACH HILL ROAD 09 O TENTATIVE TRACT 4977 TENTATIVE TRACT 4975 BORROW SITE 00030.1 RECORDING REQUESTED BY: CITY OF MOORPARK WHEN RECORDED MAIL TO: City Clerk, City of Moorpark 799 Moorpark Avenue Moorpark, CA 93021 AGREEMENT FOR CONSTRUCTION OF SUBDIVISION IMPROVEMENTS AND REIMBURSEMENT This Agreement is entered into this day of , 1999, by and between, Richmond American Homes of California, Inc., hereinafter referred to as "Developer ", and the City Of Moorpark, California, a municipal corporation, hereinafter referred to as "City ": RECITALS: WHEREAS, Developer desires the City's approval of a final subdivision map for Tract No. 4977 ( "Final Map ") and commonly referred to as ( "Subject Tract "); and WHEREAS, City desires that, in the event the Final Map is approved, Developer be contractually obligated thereafter to construct certain improvements in and about the Subject Tract that are required by conditions of approval of the tentative subdivision map for Tract No. 4977 ( "Tentative Map "); NOW, THEREFORE, in consideration of City's approval of the Final Map prior to construction of the improvements required by the approved Tentative Map, the parties hereto agree as follows: Developer represents that Developer is the owner of the real property in the City of Moorpark, California comprising the Subject Tract. 2. Developer shall construct, at Developer's own expense, all streets, storm drains and monuments described in the plans and specifications under City Drawing No(s). 98 -ML -10583 , on file in the office of City's Public Works Director, all water and sewer systems described in Ventura County Drawing No(s). 63694 — 63709 , on file in the office of Ventura County's Public Works Director, Ventura, California, and all flood control work described in Ventura County Drawing No(s). , on file in the office of the Ventura County Flood Control District, Ventura., California (collectively "Improvements "). Said drawings, plans and specifications are incorporated herein by this reference and made a part of this Agreement as though set forth at length herein. 3. Developer shall complete the Improvements within fifteen (15) months after the approval of the Final Map by the City Council of City. If the time for completion of the Improvements is extended by City, the extension shall not affect the validity of this Agreement or release any security filed with City pursuant to Paragraph 5 hereof. Developer hereby acknowledges and agrees that any delay in the completion of the Improvements that is caused by delay in completion of the grading pursuant to that certain Early Grading Agreement made and entered into on , 1999 by and between Lennar Homes of California, Inc. and City shall not be deemed the fault of City and City shall have no obligation to extend the time for completion of the Improvements as a result of delay in the completion of the grading. Page 1 of 000302 CITY OF MOORPARK 4. Developer irrevocably offers the Improvements within City right of way and property, to City for public use, except the following: (a) All water and sewer systems described in Ventura County Drawings No(s). 63694 - 63709 , which are irrevocably offered to the Ventura County Water Works District. (b) All flood control work described in Ventura County Drawing No(s). which are irrevocably offered to the Ventura County Flood Control District. Prior to approval of the Final Map by the City Council of City, Developer shall file with City, in accordance with City's subdivision Ordinance and with the Subdivision Map Act, security for the faithful performance of the Improvements to be constructed by Developer pursuant to this Agreement and separate security (except for monuments) for the payment of laborers and materialmen who furnish labor or materials to those Improvements. Each security shall be good and sufficient securities on forms approved by City and shall be in an amount equal to one hundred percent (100 %) of the estimated cost to construct and complete the Improvements, which estimated cost (a) Streets - Performance and Payment, each $744,806.00 (b) Storm Drain - Performance and Payment, each $648,042.00 (c) Monuments — Performance $82,978.00 Total $1,475,826.00 Should the amounts of the securities become insufficient in the opinion of City, Developer shall renew said securities in amounts deemed sufficient by City within ten (10) days after receiving a demand from City therefore. 6. Developer warrants that the drawings, plans and specifications referred to in Paragraph 2 hereof are in accordance with the approved Tentative Map and any plan previously approved by the City Council of City for said subdivision. Developer further warrants that said drawings, plans and specifications are adequate to accomplish construction of the Improvements in a good and workmanlike manner and in accordance with accepted construction practices. Should any of said drawings, plans and specifications, at any time prior to acceptance of the Improvements as complete by the City Council of City, prove to be inadequate in any respect, then Developer shall make such changes are as necessary to complete said Improvements in a good and workmanlike manner and in accordance with accepted construction practices. 7. Developer shall construct the Improvements in a good and workmanlike manner, in accordance with accepted construction practices and to the satisfaction of the City Engineer of City. The Improvements shall not be deemed complete until they are accepted as complete by the City Council of City. Said acceptance shall constitute acceptance of the offers of the Improvements for public use as set forth in Paragraph 4 hereof. Page 2of5 000303 CITY OF MOORPARK A Soils Engineer acceptable to the City Engineer of City shall be employed and paid by Developer. The Soils Engineer shall perform materials testing, construction control testing, interpretation of test results, and pavement design for the street portion of the Improvements in accordance with the requirements set forth in Section 3, shown on Plates A -3 and A -3(a), of Ventura County Road Standards approved by City. The Soils Engineer shall provide City the reports containing the results of the testing, the interpretation of the results and the pavement design done in connection with this Agreement. With the last report filed, the Soils Engineer shall include a certificate that the testing, interpretation, and design have been done properly in accordance with the applicable Ventura County Road Standards and good engineering practices. All reports and the certificates shall be mailed or delivered to City. The street portion of the Improvements shall be constructed in accordance with the pavement design, and any modification thereto, that is approved by the City Engineer of City. At all times, from the acceptance by the City Council of City of the dedications offered on the Final Map until the Improvements are accepted as complete by the City Council of City, Developer shall take such precautions as may be necessary to protect the public from any dangerous condition caused by the construction of the Improvements. Developer shall have control of the grounds reserved for the Improvements and the streets in which they are to be placed as is necessary to allow Developer to carry out this Agreement. Developer shall pay for such permits and inspections of the Improvements as may be required by the City Engineer of City under the circumstances. 10. Developer shall guarantee the replacement and repair of the improvements for one (1) year after they are accepted as complete by the City Council of City. This guarantee shall not include routine maintenance or ordinary wear and tear. The securities required pursuant to Paragraph 5 hereof shall not be exonerated until a security guaranteeing the requirements of this Paragraph, in the amount of at least ten percent (10 %) of the sum shown in Paragraph 5 hereof, is accepted by the City Council of City. 11. Developer shall indemnify, defend with counsel approved by City and hold harmless City, Charles Abbott Associates, the County of Ventura ( "County ") and the Ventura County Flood Control District ( "District ") and their officers, employees, servants and agents from any claim, demand, damage, liability, loss, cost or expense for any damage whatsoever, including but not limited to death or injury to any person and injury to any property, resulting from, or in any way connected with, the performance of this Agreement, except such damage as is caused by the sole negligence of City, County or District or any of their officers, employees, servants or agent. 12. Developer is and shall at all times remain as to City a wholly independent contractor. Nothing contained in this Agreement shall be deemed, construed or represented by City or Developer to any third person to create the relationship of principal and agent, partnership, joint venture, or any other association of any kind or nature between City and Developer. 13. 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 writing expressly purporting to be such an amendment, signed and acknowledged by both of the parties hereto. Page 3 of 5 000304 CITY OF MOORPARK 14. 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. 15. 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. 16. In the event any action, suit or proceeding is brought for the enforcement of, or the 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 and expenses, including reasonable attorney's fees, from the losing party, and any judgement or decree rendered in such a proceeding shall include an award thereof. 17. Any demand to be given pursuant to this Agreement shall be in writing, and all such demands and any other document to be delivered shall be delivered by personal service or by deposit in the United States mail, certified or registered, return receipt requested, with postage prepaid, and addressed to the party for whom intended as follows: TO: City of Moorpark 799 Moorpark Avenue Moorpark, CA 93021 Attn: City Manager TO: Richmond American Homes of California, Inc. 16600 Sherman Way, Suite 180 Van Nuys, CA 91406 Attn: John Matthews Either party may, from time to time, by written notice to the other, designate a different address which shall be substituted for the one above specified. Demands and other documents shall be deemed delivered upon receipt by personal service or upon deposit in the United States mail. 18. This Agreement shall run with the land and shall bind and obligate, and inure to the benefit of, the successors and assigns of the parties hereto until such time that all the securities listed in Section 5 of this Agreement are completely exonerated by the City. Page 4 of 5 00030 CITY OF MOORPARK RICHMOND AMERICAN HOMES OF CALIFORNIA, INC. a Colorado Corporation (Signature) Richmond American Homes (Title) (Name) "DEVELOPER" (Date) Mayor, City of Moorpark (Seal) Attest: City Clerk (TO BE NOTARIZED) "CITY" Page 5 of 5 000306 Recording Requested by and Return to: City Clerk City of Moorpark 799 Moorpark Avenue Moorpark, California 93021 CITY OF MOORPARK EARLY GRADING AGREEMENT FOR LOT 2 OF TRACT MAP NO. 4974 This Amended Early Grading Agreement (hereinafter "Agreement "), made and entered into this day of , 1999, by and between LENNAR MOORPARK, L.L.C., a California Limited Liability Company, 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, an Early Grading Agreement was entered into by and between Developer and City on June 3, 1998 ( "the Initial Agreement ") for the property described as Lot 2 of Tract 4974 ( "the Property ") and shown on Exhibit "A ", attached hereto and incorporated herein by this reference; and WHEREAS, the Initial Agreement pre -dates the City's approval of the final map for the grading and improvement of the Property per Plan No. 98 -ML -10583 ( "the Plan"); and WHEREAS, Developer has transferred ownership of the Property to Richmond American Homes of California, Inc. ("'Richmond American Homes ") prior to the recordation of the final map for Tract 4977; and WHEREAS, Richmond American Homes has agreed to complete all of the improvements as shown on Plan No. 98 -ML- 10583, with the exception of grading operations and erosion and sedimentation control; and WHEREAS, Developer has agreed to complete all grading operations and erosion and sedimentation control as shown on Plan No. 98 -ML -10583 ( "the Grading Work ") and has requested that City agree to the same; and WHEREAS, the Initial Agreement has been released per that certain Release Of Covenant And Agreement recorded in the Office of the Recorder of Ventura County of even date with the recordation of this Agreement. L GRADING Developer, at its sole cost and expense, may perform the Grading Work on the Property (area outlined in Exhibit "A "). Developer shall conform with all conditions of grading (prior to and during) as approved with TTM 4977 and this Agreement. 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 plans for Grading 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 work allowed by this Agreement. Page 1 of 7 000307 2. CHANGES IN PLANS All Grading Work shall be performed in accordance with the Plan 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 Grading Work, as originally submitted by Developer, accomplish the work covered by this Agreement. Developer shall complete all work performed under this Agreement in accordance with the Plan. Should the Plan 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 Grading Work is performed in accordance with said City standards and regulations, said accepted construction practices, and approved Conditions of TTM 4977. 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 of Grading Work in accordance with this Agreement. The Developer shall file with the City, security for the faithful performance of the Grading Work pursuant to this Agreement. Security shall be good and sufficient on forms approved by the City. Should any surety become insufficient in the opinion of the City, Developer shall increase said surety, 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 surety shall be renewed on a yearly basis and shall be increased in amount equivalent to the increase, if any, in 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 exoneration 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 Grading Work no later than All Grading Work shall be completed prior to City acceptance and reduction /exoneration of sureties. FINAL GRADING INSPECTION The City Engineer or his duly authorized representative, upon request of Developer, shall inspect the Grading Work. When Grading Work is determined to have been performed in accordance with the provisions of this Agreement, the City shall accept the Grading Work as complete. 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 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 City's Administrative Costs "). Page 2 of 7 00030 8 6. PROTECTION OF PROJECT SITE At all times during the Grading Work, 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 private property from debris and damage. 7. GUARANTEE OF IMPROVEMENTS Developer shall guarantee against defective plans, labor and materials for a period of one year following City acceptance of the Grading Work as complete pursuant to Paragraph 5. In the event any of the Grading Work is 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 City's Administrative 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 Plans. Prior to City's final inspection of the Grading Work, Developer shall transfer this information to a final set of record drawings and deliver them to the City Engineer for approval and retention. 9. 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 18.F. hereof. 10. 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. H. 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, demand, cost, liability, claim or cause of action for injury, including death, to any person whomsoever and 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 officers, employees, 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 Paragraph 12 hereof. The provisions of this paragraph shall apply to all injuries and damages of every kind suffered, or alleged to Page 3 of 7 0000-09 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 Grading Work or inspected the Grading Work and regardless of whether or not any of the insurance policies described in Paragraph 12, hereof shall have been determined to be applicable to any of such injuries or damages. 12. 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 bodily injury - aggregate; $1,000,000 property damage - each occurrence; $5,000,000 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; $1,000,000 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. 13. 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, which consent shall be at the sole discretion of City. It is acknowledged and agreed by the parties that Developer is uniquely qualified to perform the Grading Work and that it is unique for the City to allow a person to grade land which it does not have an ownership interest. 14. 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 prosecute the Grading Work, or any severable part thereof, with such diligence as will insure its completion within the time specified, or fails to complete said work within the time; Developer is adjudged a bankrupt; Developer makes a general assignment for the benefit of Developer's Page 4 of 7 000310 creditors; a receiver is appointed in the event of Developer's insolvency; or Developer, or any of Developer's officers, agents, servants or employees violates any of the provisions of this Agreement. 15. BREACH OF AGREEMENT: PERFORMANCE BY SURETY OR CITY In the event notice is given as specified in Paragraph 14 Developer's surety shall have the duty to take over and complete the Grading Work in accordance with all of the provisions of this Agreement; provided, however, that if the surety, within five (5) days after delivery to of such notice, does not give City written notice of its intention to so take over and complete the Grading Work or does not commence the performance thereof within twenty (20) days after notice to City of such election, City may take over and prosecute the Grading Work 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 Grading Work, such materials, tools, equipment and other property belonging to Developer as may be on the site of the Grading Work and necessary therefore. Developer and its surety shall be obligated to pay City the actual cost of such work together with the City's Administrative 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 paragraph 7 hereof shall not be construed as being in lieu of any other such rights. 16. 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. 17. 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 Moorpark, L.L.C. 6767 Forest Lawn Drive, Suite 300 Los Angeles, CA 90068 18. 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. Page 5 of 7 000311 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 tolled during the period of such court order. C. The position taken by City in any litigation brought by or against City 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 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 Grading Work is accepted as complete by the City. I. Except as expressly provided, Developer shall make each required payment to the City within ten (10) days after receipt of City's written invoice. J. The surety bonds specified in paragraph 3 shall be in the aggregate amount of: Improvement Bond Type Total Grading/Erosion Performance $1,265,165.00 Grand Total $],265,165.00 In lieu of bonds, the City may, in its sole discretion, accept other forms of surety. K. All fees, deposits and bonds discussed herein are based on preliminary cost estimates and are subject to change pursuant to any changes, if any, to the approved plans. L. City has the right, but not the obligation, to enforce the provisions of this Agreement. Page 6 of 7 000312 IN WITNESS THEREOF, the parties hereto have executed this Agreement as of the day and year first above written. LENNAR MOORPARK, L.L.C., a California Limited Liability Company (Robert Santos, Vice - President) "DEVELOPER" CITY OF MOORPARK, a municipal corporation of the State of California am (Patrick Hunter, Mayor) (Seal) Attest: (CITY CLERK) "CITY" Richmond American Homes of California, Inc. A Colorado corporation, as owner of the Property herein above described does hereby consent to the recordation of this Early Grading Agreement. Page 7 of 7 0 0 0 a Ik,- ` TENTATIVE TRACT 4975 BORROW SITE 0000-1_-+ RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City Clerk City of Moorpark 766 Moorpark Avenue Moorpark, CA 93021 PARTIAL RELEASE OF COVENANT AND AGREEMENT KNOW ALL MEN BY THESE PRESENT: THAT CERTAIN COVENANT AND AGREEMENT (entitled "EARLY GRADING AGREEMENT") BY AND BETWEEN Lennar Homes of California, Inc. ( "Developer ") and the City of Moorpark, a municipal corporation ( "City "), which Recorded October 5, 1998 as Instrument No. 98- 171243, of Official records, County of Ventura, California, affecting certain real property including but not limited to the real property described below, is hereby partially released and terminated as to the obligations of the Grantor and City with respect to only the property described below: PROPERTY DESCRIPTION: BEING A SUBDIVISION OF LOT 2, TRACT NO. 4974, IN THE CITY OF MOORPARK, COUNTY OF VENTURA, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 130, PAGES 63 THROUGH 66 OF MISCELLANEOUS RECORDS (MAPS) IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. CITY OF MOORPARK, CA By: City of Moorpark 0003-115