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HomeMy WebLinkAboutAGENDA REPORT 2019 0206 CC SPC ITEM 05ACITY OF MOORPARK, CALIFORNIA City Council Meeting of 2.6.2019 ACTION Approved staff recommendation. Adopted Reso No. 2019-3785 BY M. Benson A. Consider Resolution Approving an Agreement for the Acceptance of ORA Ashford Maintained Landscape Areas in the Meridian Hills Development into Assessment District AD 07-02, Payment for Certain Landscape Improvements, and Partial Termination of ORA Ashford’s Remaining Obligations under a Development Agreement. Staff Recommendation: Adopt Resolution No. 2019- 3785, approving an Agreement for the acceptance of ORA Ashford Maintained Landscape Areas in the Meridian Hills Development into Assessment District AD 07-02, payment for certain landscape improvements, and partial termination of ORA Ashford’s remaining obligations under a Development Agreement. Item: 5.A. MOORPARK CITY COUNCIL AGENDA REPORT TO: Honorable City Council FROM: Troy Brown, City Manager Jeremy Laurentowski, Parks and Recreation Director Kevin G. Ennis, City Attorney By: Kevin G. Ennis, City Attorney DATE: 02/06/2019 Special Meeting SUBJECT: Consider Resolution Approving an Agreement for the Acceptance of ORA Ashford Maintained Landscape Areas in the Meridian Hills Development into Assessment District AD 07-02, Payment for Certain Landscape Improvements, and Partial Termination of ORA Ashford’s Remaining Obligations under a Development Agreement INTRODUCTION City staff and representatives of The Resmark Companies, a finance and management company, acting on behalf of ORA Ashford 94, LLC, ORA Marquis 89, LLC, and ORA Brighton 17, LLC (collectively, “ORA Ashford”), have sought to resolve a series of outstanding issues with respect to the completion of Phase I Landscaping Improvements in certain open space lots in the Meridian Hills development. Discussions and meetings over this issue have occurred in the last few years and then more earnestly in the last three months. Those issues include: (1) ORA Ashford’s obligations to complete the landscape improvements; (2) the City’s responses to past attempts by ORA Ashford to undertake and complete the landscape improvements; (3) how much work needs to be done to repair, replace and complete the landscaping improvements and the estimated cost of that work; (4) the equitable allocation of that expense; (5) when will that work be undertaken and by whom; (6) whether certain funds currently held by the City for Landscape and Lighting Assessment District No. 07-02 (“AD 07-02”) will be used for this purpose; (7) whether certain amounts of unspent funds collected by prior assessments and placed into the AD 07-02 account will be reimbursed to ORA Ashford and when; (8) how certain lettered lots will be conveyed from the ORA Ashford to the Meridian Hills HOA; and (9) how to settle, resolve and document this arrangement in an agreement between the parties. Item: 5.A. 1 Honorable City Council 02/06/2019 Special Meeting Page 2 City staff is now ready to present a settlement agreement to the City Council that addresses these issues. That settlement agreement is entitled “Agreement for the Acceptance of ORA Ashford Maintained Landscape Areas in the Meridian Hills Development into Assessment District AD 07-02, Payment for Certain Landscape Improvements, and Partial Termination of ORA Ashford’s Remaining Obligations under a Development Agreement” (hereafter referred to as “Settlement Agreement.”) Staff is recommending approval of the Settlement Agreement. BACKGROUND & DISCUSSION West Pointe Homes was the original owner and developer of Tract 5187 and Tract 5405 (Meridian Hills). In 2007, West Pointe sold the project to William Lyons Homes (“WLH”). WLH was required to make certain improvements which included the Phase 1 Landscape Maintenance Areas (see Exhibit A of the attached Settlement Agreement) which were a requirement of the Conditions of Approval for the project. The Conditions of Approval also required that an assessment district be formed to fund City maintenance costs for these improvements, once accepted by the City, including certain areas within Tracts 5187 and 5405. In 2007, Landscaping and Lighting Maintenance Assessment District 07-02 (AD 07-02) was formed to fund the City maintenance costs for the landscape improvements installed in Tract 5187 5405. In 2008, WLH sold the development project to ORA Ashford 94, LLC, ORA Marquis 89, LLC, and ORA Brighton 17, LLC (collectively, “ORA Ashford”) and managed by The Resmark Companies. An implementation plan was drafted to ensure that certain improvements, including the landscape maintenance areas were completed. In 2014, ORA Ashford subsequently sold their interest in the project to K. Hovnanian, who is in the final stages of completion of the project. ORA Ashford retained the obligation to complete and maintain the Phase 1 Landscaping Improvements. ORA Ashford is now requesting that the City accept the Phase I Landscape Improvements in their current condition and take over the maintenance of these areas using funds collected from assessments of property owners and held in the account for AD 07-02. If the City Council approves the Settlement Agreement, then staff is also recommending, by separate and companion agenda item on tonight’s regular meeting agenda, that the City Council accept the Phase I Landscape Improvements into Assessment District AD 07-02 to facilitate City commencement of maintenance obligations for Phase I of these improvements as contemplated by the Settlement Agreement. 12853-0022\2261596v4.doc 2 Honorable City Council 02/06/2019 Special Meeting Page 3 SUMMARY OF TERMS OF THE SETTLEMENT AGREEMENT The Settlement Agreement provides that no later than March 1, 2019, ORA Ashford shall cause the full and complete conveyance of the remaining open space lettered lots owned by ORA Ashford over to the Meridian Hills HOA. On that same date (March 1, 2019), the City will accept the Phase I Improvements into AD 07-02 and commence the process of completing the improvements and maintaining them using funds in the AD 07-02 account. The City has received approximately $697,090 in assessments from ORA Ashford from property assessments in Assessment District No. 07-02 during Fiscal Years 2007/08, 2008/09, 2009/10, 2010/11, 2011/12, and 2012/13. Of this amount, the City and ORA Ashford have agreed that the City will retain $523,316.33 which is the estimated cost of completing the Phase I Landscape Improvements and return the balance of $173,773.67 to ORA Ashford by April 1, 2019. The City will competitively bid the Phase I Landscaping Improvement work and use the $523,316.33 to pay for those Improvements. City will use any other remaining funds in the Assessment District to pay for the full cost of the Improvements, to the extent the bids and work exceed the estimate. Currently, the City has approximately $175,445 in additional funds in the Assessment District account (above the $697,090.00). ORA Ashford and the City will release each other’s claims and causes of actions arising from the dispute and also from future liabilities except that the releases do not include the following: (1) defense and indemnity obligations, if any, owed to City by, or owed by the City to, ORA Ashford and/or K. Hovnanian at Meridian Hills, LLC, K. Hovnanian Companies of California, K. Hovnanian Companies of Southern California, and K. Hovnanian Communities, Inc. in that certain lawsuit entitled Glenn Reiff, et al. v. K. Hovnanian at Meridian Hills, LLC, et al. (Ventura County Superior Court Case No. 56- 2016-00480304-CU-PO-VTA); (2) any and all rights of the City, if any, under Section 16 of the Development Agreement regarding the condition of Meridian Hills Drive westerly of Breezy Glen Road within the boundaries of the Project; and (3) any potential claims of liability for bodily injury and/or property damage occurring on or before the date of this Agreement occurring on the Maintenance Areas and in the Project. FISCAL IMPACT AD 07-02 currently has approximately $872,535 in total funds available as of January 30, 2019. Of this amount, $523,316.23 is the current engineer’s estimate of the cost to complete the Phase 1 Landscape Improvements and $173,773.67 will be returned to ORA Ashford on April 1, 2019. This will leave approximately $175,445 as a balance to pay for increases in costs and maintenance costs. New assessment revenue will be received by the city through Fiscal Year 2019-2020 assessments that will be received in 12853-0022\2261596v4.doc 3 Honorable City Council 02/06/2019 Special Meeting Page 4 December 2019 and in January 2020 to pay for the anticipated $405,000 2019-2020 Fiscal Year maintenance costs of the Assessment District. STAFF RECOMMENDATION Adopt Resolution No. 2019-___, approving an Agreement for the Acceptance of ORA Ashford Maintained Landscape Areas in the Meridian Hills Development into Assessment District AD 07-02, Payment for Certain Landscape Improvements, and Partial Termination of ORA Ashford’s Remaining Obligations under a Development Agreement. Attachment: Resolution No. 2019-____ with Agreement for the Acceptance of ORA Ashford Maintained Landscape Areas in the Meridian Hills Development into Assessment District AD-07-02, Payment for Certain Landscape Improvements, and Partial Termination of ORA Ashford’s Remaining Obligations under a Development Agreement 12853-0022\2261596v4.doc 4 RESOLUTION NO. 2019- ____ A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MOORPARK, CALIFORNIA, APPROVING AN AGREEMENT FOR THE ACCEPTANCE OF ORA ASHFORD MAINTAINED LANDSCAPE AREAS IN THE MERIDIAN HILLS DEVELOPMENT INTO ASSESSMENT DISTRICT AD-07-02, PAYMENT FOR CERTAIN LANDSCAPE IMPROVEMENTS, AND PARTIAL TERMINATION OF ORA ASHFORD’S REMAINING OBLIGATIONS UNDER A DEVELOPMENT AGREEMENT WHEREAS, the City Council approved Residential Planned Development (RPD) 99-02 and Tracts 5187 which allowed West Pointe Homes to construct the Meridian Hills housing project, which later also included housing units in Tract 5405 (“Project”) within the City of Moorpark; and WHEREAS, The City and West Pointe entered into a Development Agreement, dated January 23, 2002, pursuant to which the Developer agreed to comply with the conditions of approval of the Tentative Map; and WHEREAS, subsequent to the approval of Tract 5187, West Pointe Homes, sold the Project to William Lyon Homes in 2003 and then William Lyon Homes sold the Project to ORA Ashford 94, LLC, ORA Marquis 89, LLC, and ORA Brighton 17, LLC (collectively, ORA Ashford), as managed by the Resmark Companies, in 2008; and WHEREAS, the conditions of approval of RPD 99-02 required construction of certain landscaping improvements within the tract and formation of an assessment district (Assessment District No. AD-07-02) within the tract to fund the costs of City maintenance of these landscape improvements at such time as the maintenance is taken over by the City; and WHEREAS, William Lyon Homes constructed some of the Landscape Improvements in Tract 5187 and in the later approved Tract 5405 prior to sale to ORA Ashford (Phase I Landscape Improvements); and WHEREAS, ORA Ashford was responsible for completing and maintaining those Phase I Landscape Improvements until the City deemed them complete and accepted them into the Assessment District No. AD-07-02; and WHEREAS, In Fiscal Years 2007/08, 2008/09, 2009/10, 2010/11, 2011/12, and 2012/13, the City levied and collected assessments to fund the LMD Services (the “Assessments”) under the LMD Act. The City levied and collected assessments from ORA Ashford as an owner of property in the LMD, in the amount of six hundred ninety- seven thousand ninety dollars ($697,090); and 5 Resolution No. 2019-____ Page 2 WHEREAS, in 2014 ORA Ashford sold the Project to K. Hovnanian Homes but retained the obligation to complete the Phase I Landscape Improvements; and WHEREAS, ORA Ashford have requested that City complete the required Phase I Landscape Improvements and take over the maintenance obligations for the Phase I Landscape Improvement areas using unspent funds collected from the Assessments; and WHEREAS, ORA Ashford and the City have negotiated a resolution of their respective disputes with the other over the completion, funding, timing and other aspects of the process by which the Phase I Landscape Improvements will be completed and the resolution of other outstanding disputes and issues between ORA Ashford and the City; and WHEREAS, by separate agenda item, if and when the Agreement, entitled “Agreement for the Acceptance of ORA Ashford Maintained Landscape Areas in the Meridian Hills Development into Assessment District AD-07002, Payment for Certain Landscape Improvements, and Partial Termination of ORA Ashford’s Remaining Obligations under a Development Agreement,” is approved by the parties, the City will then consider taking over the completion of the Phase I Landscaping Improvements and commence maintenance obligations for those Improvements using a specified amount of Assessments with the balance of ORA Ashford paid Assessments returned to ORA Ashford. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK DOES HEREBY RESOLVE AS FOLLOWS: SECTION 1. The City of Moorpark hereby approves the Agreement, entitled “Agreement for the Acceptance of ORA Ashford Maintained Landscape Areas in the Meridian Hills Development into Assessment District AD-07002, Payment for Certain Landscape Improvements, and Partial Termination of ORA Ashford’s Remaining Obligations under a Development Agreement,” attached hereto as Attachment 1, and authorizes the City Manager to execute that Agreement on behalf of the City. 6 Resolution No. 2019-____ Page 3 SECTION 2. The City Clerk shall certify to the adoption of this resolution and shall cause a certified resolution to be filed in the book of original resolutions. PASSED AND ADOPTED this 6th day of February, 2019. __________________________________ Janice S. Parvin, Mayor ATTEST: ___________________________________ Maureen Benson, City Clerk Attachment 1 – Agreement for the Acceptance of ORA Ashford Maintained Landscape Areas in the Meridian Hills Development into Assessment District AD- 07-02, Payment for Certain Landscape Improvements, and Partial Termination of ORA Ashford’s Remaining Obligations under a Development Agreement 7 12853-0022\2259033v10.doc AGREEMENT FOR ACCEPTANCE OF ORA ASHFORD MAINTAINED LANDSCAPE AREAS IN THE MERIDIAN HILLS DEVELOPMENT INTO ASSESSMENT DISTRICT NO. AD-07-02, PAYMENT FOR CERTAIN LANDSCAPE IMPROVEMENTS, AND PARTIAL TERMINATION OF ORA ASHFORD’S REMAINING OBLIGATIONS UNDER A DEVELOPMENT AGREEMENT This Agreement is made and entered this ____ day of February, 2019, by and between the CITY OF MOORPARK (“City”); on the one hand, and ORA ASHFORD 94, LLC., ORA MARQUIS 89, LLC, ORA BRIGHTON 17, LLC (collectively, “ORA Ashford”), on the other hand, (collectively, the “Parties”), for among, other things, memorializing terms and conditions for the City’s acceptance of certain landscape areas in the Meridian Hills Development into Assessment District No. AD-07-02, payment to ORA Ashford for certain landscape improvements (described herein). RECITALS A. West Pointe Homes, Inc. (“West Pointe”), was the original owner of the real property located in the City known as the “Meridian Hills” residential development (the “Project”) and subject of an approved tentative map (the “Tentative Map”) for Tract Map 5187. Pursuant to City Council Resolution No. 2002-1938, pertaining to the approval of the Tentative Map, the City determined that certain improvements, including landscaping and drainage improvements, described in the Resolution were to be constructed by West Pointe and maintained and serviced by the City. Condition No. 26, set forth in the Resolution, required West Pointe to submit a petition and waiver to the City for the establishment of an assessment district to fund future costs for the maintenance of these improvements. B. The City and West Pointe entered into a Development Agreement, dated January 23, 2002, pursuant to which the Developer agreed to comply with the conditions of approval of the Tentative Map. Pursuant to Section 6.13 of the Development Agreement, West Pointe agreed to submit and gain approval of an Implementation Plan that addresses the construction responsibilities of West Pointe for all improvements required by the Tentative Map. The Development Agreement provides that prior to the sale or any transfer of ownership of any portion of Tract 5187 (except individual lots after construction of houses); West Pointe shall seek City approval of an amendment to the Implementation Plan to address the responsibilities of each entity. Pursuant to Section 6.15 of the Development Agreement, West Pointe agreed to cast affirmative ballots for the formation of an assessment district. C. In 2003, William Lyon Homes, Inc. (“William Lyon”), purchased the Project from West Pointe and the Development Agreement was assigned to William Lyon pursuant to Section 3.2 thereof. Pursuant to Section 6.11 of the Development Agreement, William Lyon filed an application for tentative map for Tract Map 5405 (the “Affordable Housing Map”). Pursuant to City Council Resolution No 2003-2111, pertaining to approval of the Affordable Housing Map, the City determined that certain improvements including landscaping and drainage improvements would be constructed by William Lyon and maintained and serviced by the City. Condition No. 17, set forth in the Resolution, required William Lyon to submit a petition and waiver to the City for the establishment of an assessment district to fund future costs for the maintenance of the 8 -2- 12853-0022\2259033v10.doc landscape improvements. The assessment district could be a separate district or combined with the one for Tract 5187, so long as the lowest cost was provided to the homeowners of Tract 5405. Pursuant to Section 6.13 of the Development Agreement, William Lyon submitted and the City approved an Implementation Plan and pursuant to Condition No. 26 of Resolution 2002-1938 and Condition No. 17 of Resolution 2003- 2111, William Lyon filed a petition and waiver with the City requesting formation of an assessment district. D. In 2007, in accordance with the petition and waiver filed by William Lyon and pursuant to the Landscaping and lighting Act of 1972 (California Streets and Highways Code Section 22500 et seq. [the “LMD Act”]), the City formed Assessment District No. AD-07-02 (the “LMD”) to fund maintenance and servicing of certain improvements, as described in Exhibit B to the petition and waiver (the “LMD Services ”). E. Under that certain Mutual Release and Settlement Agreement, dated May 7, 2008, by and between the City and William Lyon, as predecessor in interest to ORA Ashford, William Lyon was obligated to construct certain public improvements in the LMD, however not all of the improvements were completed by William Lyon. F. In Fiscal Years 2007/08, 2008/09, 2009/10, 2010/11, 2011/12, and 2012/13, the City levied and collected assessments to fund the LMD Services (the “Assessments”) under the LMD Act. The City levied and collected assessments from ORA Ashford as an owner of property in the LMD, in the amount of six hundred ninety- seven thousand ninety dollars ($697,090). G. The City asserts that the LMD was properly established and that the Assessments were properly levied and collected to fund the LMD Services and that ORA Ashford was required to complete certain improvements to the City’s satisfaction, but because ORA Ashford failed to complete and thereafter maintain th ose improvements even as of the date of this Agreement, the City also asserts that it was precluded from accepting these improvements as complete and commencing the use of the Assessments to thereafter provide for the LMD Services. ORA Ashford asserts that it had satisfactorily completed these improvements and that the City should have accepted these improvements. H. The City further asserts that due to the failure of ORA Ashford to complete and maintain these certain improvements the City is authorized to use the Assessments to pay for the cost of acquiring and thereafter completing and correcting these certain improvements and fund the LMD Services. The location of these certain improvements are depicted on Exhibit A as Phase 1 Landscape Improvements (“Improvements”). ORA Ashford asserts that the City was not providing t he LMD Services because the City had not accepted the Improvements and therefore the City should not have levied and collected the Assessments to fund the LMD Services. ORA Ashford further asserts that it is entitled to a refund of Assessments in a minimum amount of $697,090. O RA Ashford asserts that (1) the City refused to accept the Improvements causing ORA Ashford to spend about $5,000,000 in maintenance for the last 10 years; and, (2) the City improperly required ORA Ashford to build the “hump trail” and the “ADA Retrofit Trail” that were not part of the Improvements, costing ORA Ashford about $500,000. In addition, ORA Ashford no longer has any interest in the Project, with the exception of three (3) open space lots located within the Project’s boundaries (i.e., Lots D (APN 513- 9 -3- 12853-0022\2259033v10.doc 0-140-255); F (APN 513-0-171-135; J (APN 513-0-130-115 (collectively, the “Open Space Lots”) that were to be conveyed to the HOA and additional maintenance areas that contain the Improvements (the Open Space Lots and additional mainten ance areas are referred to collectively “Maintenance Areas”.) Thus, ORA Ashford asserts that it has no longer any obligations under the Development Agreement; and, has satisfied the conditions for release of Grading and Improvements Bond No. 0611348 (“GI Bond”). The City disputes ORA’s Ashford contentions, and disputes ORA is entitled to any monies as further detailed in these Recitals. I. In connection with entering into this Agreement, ORA Ashford also desires to convey the Open Space Lots to the HOA. ORA Ashford will convey the Open Space Lots to the HOA consistent with the Declaration of Covenant, Conditions and Restrictions, etc. recorded against the HOA’s property. J. The Parties desire to enter into this Agreement to set forth the terms and conditions under which (1) the City will accept the Improvements into Assessment District No. AD-07-02, (2) the City will acquire and complete the Improvements and maintain them thereafter using LMD funds, and (3) the City’s and ORA Ashford’s respective rights as to the Assessments. The various claims set forth in the Recitals are collectively referred to herein as the “Dispute,” but none of the Parties concede any of assertions of any other Party as to the Dispute. TERMS In consideration of the matters set forth above, that are acknowledged as correct, and for a full and valuable consideration the Parties agree as follows: 1. ORA OBLIGATIONS, WARRANTIES, AND REPRESENTATIONS 1.1 ORA Ashford shall, as soon as practicable, but in no event no later than March 1, 2019, cause the full and complete conveyance of the Open Space Lots to the HOA, and promptly, thereafter, provide the City true and correct copies of any deeds evidencing conveyance, filed stamped by the County Recorder’s Office, as well as all agreements between ORA Ashford and the HOA relating to the conveyance of the Open Space Lots. 1.2 ORA Ashford shall indemnify, hold harmless and assume defense of, in any actions of law or in equity, the City, its officers, employees, agents, and elective and appointive boards from all claims, losses, damage, including property damage, personal injury, including death, and liability of every kind, nature and description, directly or indirectly arising from other property owners, their successors and assigns, including property owners in Assessment District No. AD-07-02, arising out of the City’s use of funds in Assessment District No. AD-07-02 to provide a refund of Assessments to ORA Ashford under this Agreement; the operations of ORA Ashford with respect to the Maintenance Areas, including its general contractor or any subcontractor, or of any person directly or indirectly employed by, or acting as agent for ORA Ashford, its general contractor or any subcontractor, but not including the sole or active negligence or willful misconduct of the City. This indemnification shall extend to claims, losses, damages, injury and liability for injuries occurring before the effective date of this Agreement. 10 -4- 12853-0022\2259033v10.doc 1.3 ORA Ashford warrants and represents that it is the sole entity(ies) entitled to the LMD Assessment Refund, and that it has not assigned, transferred, conveyed, or otherwise the rights to the Assessments, if any, to a third party. Other than the Action (defined in Section 3.4 hereof), ORA Ashford warrants and represents that it is unaware of any claims, or circumstances that may lead to the assertion of any claims by third parties for personal injury and/or bodily injury relating to the Project. 2. CITY OBLIGATIONS 2.1 After the full execution of this Agreement and up to March 1, 2019, the City, without any legal obligation to do so, will cooperate with ORA Ashford in facilitating communications, meetings and the sharing of documents with the HOA to assist in having the deeds recorded to convey the Open Space Lots to the HOA. ORA Ashford agrees that it has no claim against the City for damages or otherwise for alleged non - fulfillment of obligations under this subsection. 2.2 On March 1, 2019, the City shall accept the Improvements, as detailed on Exhibit A, into Assessment District No. AD-07-02. Once the Improvements have been accepted by the City, the Improvements will thereafter be maintained by Assessment District No. AD-07-02. 2.3 The City and ORA Ashford have prepared a list of incomplete improvements and deferred maintenance for the Improvemen ts, and from this list, the Parties have agreed upon a list of work, and have also agreed that, solely for the purposes of this Agreement, that the anticipated costs of completing the work is $523,316.33. The City will use the money from its LMD assessmen ts to complete the Improvements, the location of which are specified on the map attached hereto as Exhibit “A,” to be completed by its own work force, or by any third parties, at the City’s absolute discretion. 2.4 LMD Assessment Refund shall be calculated based upon the following formula: Description Amount LMD Assessments Paid by ORA Ashford $697,090.00 Agreed Work List (including Revised Estimate and Prevailing Wages) $523,316.33 LMD Assessment Refund $173,773.67 2.5 By no later than April 1, 2019, the City shall pay to ORA Ashford the LMD Assessment Refund of $173,773.67. 2.6 On or before April 1, 2019, the City shall release the GI Bond. Further, upon the satisfaction of all performance obligations of ORA Ashford under this Agreement, the City releases ORA Ashford from any further obligations under the Development Agreement, except as otherwise provided in Section 3.4 hereof. 11 -5- 12853-0022\2259033v10.doc 3. RELEASES 3.1 Subject to the limitations set forth in Section 3.4 hereof, upon the Parties’ full performance of its obligations in this Agreement, this Agreement shall serve as a full release and discharge by ORA Ashford on behalf of itself, its principals, officers, agents representatives, assigns, employees, subcontractors, laborer’s, materialmen, insurers, sureties, administrators, trustees, heirs, beneficiaries, and successors in interest, in consideration of the mutual covenants and promises contained herein, of the City of Moorpark, its officers, agents, representatives, assigns, employees, administrators, trustees, insurers, attorneys, heirs, beneficiaries and successors in interest, from all claims and all causes of action, including those for damages, refunds, compensation, attorney’s and expert’s fees and costs, and interest, or for demands, damages, refunds, debts, liabilities, reckonings, accounts, obligations, costs, expenses, liens, actions, causes and cause of action of whatever kind, at law or in equity, known or unknown, with respect to the Dispute. 3.2 Upon the Parties’ full performance of its obligations under this Agreement, and subject to the limitations set forth in Section 3.4 hereof, this Agreement shall serve as a full release and discharge by the City on behalf of itself, its principals, officers, agents representatives, assigns, employees, subcontractors, laborer’s, materialmen, insurers, sureties, administrators, trustees, heirs, beneficiaries, and successors in interest, in consideration of the mutual covenants and promises contained herein, of the ORA Ashford its officers, agents, owners, representatives, assigns, employees, administrators, trustees, insurers, attorneys, heirs, beneficiaries and successors in interest, from all claims and all causes of action, including those for damages, refunds, compensation, attorney’s and expert’s fees and costs, and interest, or for demands, damages, refunds, debts, liabilities, reckonings, accounts, obligations, costs, expenses, liens, actions, causes and cause of action of whatever kind, at law or in equity, known or unknown, with respect to the Dispute. 3.3 Subject to the limitations set forth in Section 3.4 hereof, each of the Parties acknowledge that it has fully read this release and knows the contents therein and hereby expressly waives any and all rights and benefits to which it may be entitled under section 1542 of the Civil Code, if any, which reads as follows: “1542. A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” 3.4 The releases set forth in this Agreement expressly do not include the following: (1) defense and indemnity obligations, if any, owed to City by, or owed by the City to, ORA Ashford and/or K. Hovnanian at Meridian Hills, LLC, K. Hovnanian Companies of California, K. Hovnanian Companies of Southern California, and K. Hovnanian Communities, Inc. in that certain lawsuit entitled Glenn Reiff, et al. v. K. Hovnanian at Meridian Hills, LLC, et al. (Ventura County Superior Court Case No . 56- 12 -6- 12853-0022\2259033v10.doc 2016-00480304-CU-PO-VTA) (hereinafter the "Action); (2) any and all rights of the City, if any, under Section 16 of the Development Agreement regarding the condition of Meridian Hills Drive westerly of Breezy Glen Road within the boundaries of the Project; and (3) any potential claims of liability for bodily injury and/or property damage occurring on or before the date of this Agreement occurring on the Maintenance Areas. 4. RIGHT TO INDEPENDENT COUNSEL The Parties acknowledge and represent that they have had the right to and benefit of consultation with independent legal counsel and expert consultants. The Parties have read and understand the entirety of this Agreement, and have been advised as to the legal effects of this Agreement, as to, for example, their rights and obligations, and hereby willingly and voluntarily agree to every term of this Agreement. 5. ENTIRE AGREEMENT This Agreement and the Exhibits attached hereto contain the entire understanding between the Parties relating to the obligations of the Parties described in this Agreement. All prior or contemporaneous agreements, understandings, representations, and statements, oral or written, are merged into this Agreement and shall be of no further force or effect. Each of the Parties is entering into this Agreement based solely upon the representations set forth herein and upon each party’s own independent investigation of any and all facts such party deems material. 6. TIME OF THE ESSENCE All Parties concur that time is of the essence with respect to this Agreement and each Party shall promptly take all actions required of that Party with respect to execution and approvals of this Agreement. 7. SEVERABILITY Should any provision of this Agreement be declared or determined by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the invalidity, illegality, or unenforceability shall not affect any other provision of the Agreement and the remainder of the Agreement shall be construed as if the invalid, illegal, or unenforceable provision had never been included. 8. VENUE AND GOVERNING LAW This Agreement is made, entered into, and executed in Ventura County, California, and any action filed in any court or for arbitration for the interpretation, enforcement or other action of the terms, conditions, or covenants referred to herein shall be filed in the applicable court in Ventura County, California. The Parties understand and agree that the laws of the State of California shall govern the rights, obligations, duties, and liabilities of the Parties to this Agreement and also govern the interpretation of this Agreement. 13 -7- 12853-0022\2259033v10.doc 9. AMENDMENTS Any amendment, modification, or var iation from the terms of this Agreement shall be in writing and shall be effective only upon approval by both Parties to this Agreement. 10. NO ADMISSION OF LIABILITY Nothing in this Agreement shall be construed as an admission of liability or wrongdoing by any of the Parties to this Agreement or an admission of any claim against any party hereto. 11. CAPTIONS OR HEADINGS The captions and headings of the various Articles, Paragraphs, and Exhibits of this Agreement are for convenience and identification only and shall not be deemed to limit or define the content of the respective Articles, Paragraphs, and Exhibits hereof. 12. COST RECOVERY 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 actual and reasonable costs and expenses, including attorney’s fees, from the losing party, and any judgment or decree rendered in such a proceeding shall include an award thereof. 13. AUTHORITY TO EXECUTE The person or persons executing this Agreement on behalf of each of the Parties warrants and represents that he/she has the authority to execute this Agreement on behalf of the signatory parties, and that all corporate, governmental, and other legal formalities necessary to enter into and be bound by this Agreement have taken place by each of the Parties.. IN WITNESS WHEREOF, the Parties hereto have caused th is Agreement to be executed the day and year first above written. CITY OF MOORPARK Troy Brown, City Manager Attest: Maureen Benson, City Clerk 14 -8- 12853-0022\2259033v10.doc ORA MARQUIS 89, LLC, ORA BRIGHTON 17, LLC, ORA ASHFORD 94, LLC Print Name: Title: 15 A-1 EXHIBIT A MAP DEPICTING PHASE 1 IMPROVEMENT AREA 16 EXHIBIT A - PHASE 1 LANDSCAPE IMPROVEMENTS17