HomeMy WebLinkAboutAGENDA REPORT 2000 0517 CC REG ITEM 11MTO:
FROM:
DATE:
CITY OF MOORPARK
AGENDA REPORT
The Honorable City Council
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CM, ,' OF MOORPARK, CALIFO12NU
City Ceunci.i Meeting
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ACTION:
BY.
Dirk Lovett, Assistant City Engineer
(Prepared by Scott Lawson, Engineering Department
May 9, 2000 (CC meeting Of May 17, 2000)
SUBJECT: CONSIDER THE APPROVAL OF AN EARLY GRADING AGREEMENT TO
ALLOW CONSTRUCTION OF TENTATIVE TRACT 4975 (LENN R
HOMES)
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 (Exhibit "A "). C.T. Financial has since
sold the land encompassing Tentative Tract 4975 to Lennar Homes of
California. Lennar Homes will be constructing the residential
development 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 4975.
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 the
Tentative Map.
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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 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
4975 shall be complied with. This includes condition numbers 46,
47 and 57 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.
Attached is the proposed "Early Grading Agreement" for review and
approval. This Agreement is of the same format as previous Early
Grading Agreements approved for Tracts 4976, 4977 and 4980.
STAFF RECOWMWMATIONS
1. Authorize the construction of improvements on Tentative Tract
4975, subject to all conditions of approval and conformance
with the "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 FOR LOT 5 OF TRACT MAP NO. 4974
(TENTATIVE TRACT 4975)
This Early Grading Agreement (hereinafter "Agreement "), made and entered into this d a y
of , 2000, 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
11Cityll).
WHEREAS, Developer is the owner of the property described as Lot 5 of Tract Map No. 4974
(hereinafter referenced as the "Property"); and
WHEREAS, Developer has prepared and submitted for plan review, grading and improvement plans No.
00 -ML -10616 (hereinafter referenced as "Plans ") for the Lennar Moorpark property in the City; and
WHEREAS, Developer desires to obtain permission to perform construction on the Property as shown
on Tentative Tract Map No. 4975 prior to the City's approval of the final map for that portion of the
improvement plans as described in paragraph 1 below and has agreed to enter into this Agreement; and
WHEREAS, the Plans have been approved by the City and Developer agrees to complete all of the
improvements as shown on the Plans; and
NOW, THEREFORE, in consideration of the issuance of an early grading permit to Developer by City, it is
agreed by and between the parties hereto as follows:
1. GRADING
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 00 -ML -10616 (hereinafter referenced as "Improvements ") on the
Property. Developer shall conform with all conditions of grading and construction (prior to and during) as
approved with TTM 4975 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 process and obtain 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 Plans 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.
2. CHANGES IN PLANS
All the Improvements shall be constructed in accordance with the Plans as discussed in paragraph 1 above, all
applicable City standards and regulations, all applicable conditions required for Tract 4975 and all accepted
construction practices, as determined by the City Engineer, without exception.
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Developer warrants that the Plans, 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 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 performed in accordance with said City standards and regulations in effect at the time
of City approval of TTM 4975, said accepted construction practices, and approved Conditions of TTM
4975.
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 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 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 an 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 the Improvements no later than 15 months from the City Council approval of
this agreement. All Improvements shall be completed to City's satisfaction prior to City acceptance and
reduction /exoneration of sureties.
5. FINAL INSPECTION
The City Engineer or his duly authorized representative, upon request of Developer, shall inspect the
Improvements. As Improvements are determined, by the City, to have been constructed in accordance with
the provisions of this Agreement, the City shall accept the Improvements 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. 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 ").
6. PROTECTION OF PROJECT SITE
At all times during the construction of Improvements, Developer shall take all such precautions as may
be necessary to limit access to the site to authorized persons only and to protect the site from all members
of the public and protect all public and adjacent private property from debris and damage.
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7. GUARANTEE OF IMPROVEMENTS
Developer shall guarantee against defective plans, labor and materials for a period of one year following
City acceptance of the Improvements as complete pursuant to Paragraph 5.
In the event any of the 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 the City's Administrative Costs 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 Plan. Prior to City's inspection and acceptance of the Improvements, Developer
shall transfer this information to a final set of record drawings and deliver them to the City Engineer for
final 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 4975 stating that the
Developer has made all arrangements required and necessary to provide the public utility service to TTM
4975. 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.
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
any resulting legal action and reasonable attorney's fees as provided by Paragraph 19.F. hereof.
11. 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.
12. 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
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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 13 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
the Improvements or inspected the completed work and regardless of whether or not any of the insurance
policies described in Paragraph 13, hereof shall have been determined to be applicable to any of such injuries
or damages.
13. 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.
14. 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 construct the Improvements.
15. 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:
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Developer refuses or fails to prosecute the 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 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.
16. BREACH OF AGREEMENT: PERFORMANCE BY SURETY OR CITY
In the event notice is given as specified in Paragraph 15 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 delivery to 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 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.
17. 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.
18. 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. Darin Hansen
Project Manager
Lennar Moorpark, L.L.C.
25129 The Old Road, #316
Stevenson Ranch, CA 91381
19. MISCELLANEOUS
A. This Agreement constitutes the entire agreement of the parties concerning the subject matter hereof
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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 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 and effect until all Improvements are accepted as complete
by the City and all sureties to guarantee the construction of the Improvements are fully exonerated by the
City.
I. Except as expressly provided in this Agreement, Developer shall make each required payment to
supplement initial fees and deposits 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 amounts of:
Improvement
Bond Type
Amount
10% contingency
Total
Grading/Erosion
Performance
$561,600.00
$56,160.00
$617,760.00
Drainage
Performance
$1,074,424.00
$107,442.00
$1,181,866.00
Drainage
Payment
$1,074,424.00
$170,442.00
$1,181,866.00
Street
Performance
$984,260.00
$98,426.00
$1,082,686.00
Street
Payment
$984,260.00
$98,426.00
$1,082,686.00
Trail
Performance
$17,750.00
$1,775.00
$19,525.00
Trail
Payment
$17,750.00
$1,775.00
$19,525.00
Monuments
Performance
$102,053.00
$10,205.00
$112,258.00
Grand Total
$4,816,521.00
$481,651.00
$5,298,172.00
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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.
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
BY LENNAR HOMES OF CALIFORNIA, INC a California Corporation
Its Manager
go
(Vice- President, Robert Santos)
(TO BE NOTARIZED)
"DEVELOPER"
CITY OF MOORPARK, a municipal corporation of the State of California
:
(Patrick Hunter, Mayor) (Seal)
Attest:
(CITY CLERK)
"CITY"
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