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HomeMy WebLinkAboutAGENDA REPORT 2004 0901 CC REG ITEM 10PTO: e7V 9 DATE MOORPARK CITY COUNCIL AGENDA REPORT ITEM 100 P• CITY OF MOORPARK, CALIFORNIA City Council Meeting of q l -A00 4 ACTION: tf Honorable City Council J Barry K. Hogan, Community Development Director k J�i Prepared By: Joseph F. Fiss, Principal Planner July 19, 2004 (CC Meeting of 9/1/2004) SUBJECT: Consider Professional Services Agreement between the City of Moorpark and Christopher A. Joseph Associates and Agreement between the City of Moorpark and Toll Brothers, Inc. for the Preparation of an Initial Study Related to General Plan Amendment No. 2003 -04, Zone Change No. 2003 -03, Tentative Map Nos. 5463 and 5464, Residential Planned Development Permit No. 2003 -04, and Residential Planned Development Permit No. 1994- 01, Modification No. 6 BACKGROUND On December 23, 2003, Toll Brothers, Inc. submitted two (2) applications for an expansion of the Country Club Estates Project. The first, on 43.3 acres north of Championship Drive and east of Grimes Canyon Road, consists of 55 proposed single - family residential homes. The second, on 28.69 acres north of Championship Drive and west of Walnut Canyon Road, consists of 36 proposed single - family residential homes. Both applications propose a change in the General Plan designation from Rural Low Residential (RL) and Open Space -2 (OS -2) to Medium Low Density Residential (ML) and Open Space (OS) , as well as, a change in Zoning from RE (Rural Exclusive) -5 acre minimum lot size to Residential Planned Development (RPD). These applications are being processed as a single, proposed General Plan Amendment and Zone Change. 0'00241 Honorable City Council September 1, 2004 Page 2 DISCUSSION These applications are subject to environmental review under the California Environmental Quality Act (CEQA) . The first step in the environmental review process is the Initial Study, which determines whether a Negative Declaration, Mitigated Negative Declaration, or Environmental Impact Report will be prepared. Given the complexity of this project, a City- retained consultant is needed to prepare the Initial Study. A Request for Proposals (RFP) was sent out to several environmental consultants. Of the two (2) proposals received, the one by Christopher A. Joseph Associates (CAJA) is recommended by staff, as it demonstrates the knowledge, skills and experience necessary to properly prepare the Initial Study, along with a work program most responsive to the City's needs. The total cost of the work, including the City's administrative costs, is $83,088.00. Copies of the CAJA proposal are available in the Community Development Department. The City of Moorpark recovers costs associated with the preparation of CEQA documentation. When a consultant is used to prepare this documentation, an agreement between the City and applicant is needed to ensure that the applicant agrees to pay all necessary costs and comply with other relevant City policies. Toll Brothers, Inc. has already deposited funds needed to cover the Initial Study costs. Upon completion of the Initial Study staff will determine the level of environmental documentation necessary. The project will require a Negative Declaration, Mitigated Negative Declaration or an Environmental Impact Report. The initial selection process anticipated that if further environmental documentation was needed, that it would be done by Christopher A. Joseph Associates under an additional contract and budget. STAFF RECOMMENDATION Approve Professional Services Agreement for an amount not to exceed $83,088.00 with Christopher A. Joseph Associates and an Agreement with Toll Brothers, Inc. for the preparation of an Initial Study for General Plan Amendment No. 2003 -04 and related applications, subject to final language approval by the City 000242 Honorable City Council September 1, 2004 Page 3 Manager and City Attorney, and authorize the City Manager to sign the Agreement. Attachments: 1. Draft Professional Services Agreement between the City of Moorpark and Christopher A. Joseph Associates 2. Draft Agreement between the City of Moorpark and Toll Brothers, Inc. 000243 PROFESSIONAL SERVICES AGREEMENT BETWEEN CITY OF MOORPARK AND CHRISTOPHER A. JOSEPH & ASSOCIATES FOR ENVIRONMENTAL SERVICES THIS AGREEMENT, made and entered into this day of 2004, by and between the City of Moorpark, a municipal corporation located in the County of Ventura, State of California, hereinafter referred to as "CITY" and Christopher A. Joseph & Associates, an independent contractor, hereinafter referred to as "CONSULTANT." W I T N E S S E T H WHEREAS, City has the need for environmental services; and WHEREAS, City desires to contract for such services with a private consultant in anticipation that said private consultant can provide such services in a manner acceptable to the City; and WHEREAS, Consultant is experienced in providing such services and has the proper experience, certifications and background to carry out the duties involved; and NOW, THEREFORE, in consideration of the mutual covenants, benefits and premises contained herein, the parties hereto agree as follows: I. SCOPE OF WORK City does hereby retain Consultant in a contractual capacity to provide environmental services, as set forth in Exhibit A: Proposal to Provide Environmental Services, for the Moorpark Country Club Estates Expansion Project, which exhibit is attached hereto. Where said Scope of Work is modified by this Agreement, or in the event there is a conflict between the provisions of said Scope of Work and this Agreement, the language contained in this Agreement shall take precedence. II. COMPENSATION Compensation for the services to be performed by Consultant shall be in accordance with "Schedule of Costs" of Exhibit A, attached hereto. Compensation shall not exceed the rates or total contract value as stated in "Schedule of Costs" of Exhibit A ($72,250.00 total) without the written authorization by the CC ATTACHMENT 1 030244 Professional Services Agreement Page 2 City Manager of the City of Moorpark. Payment by City to Consultant shall be in accordance with the provisions of Article V, Paragraph K, of this Agreement. III. TERMINATION OR SUSPENSION This Agreement may be terminated or suspended, with or without cause, by City at any time with no less than ten (10) working days written notice of such termination or suspension. Consultant may terminate this Agreement only by providing City with written notice no less than thirty (30) days in advance of such termination. In the event of such termination or suspension, Consultant shall be compensated for such services up to the date of termination or suspension. Such compensation for work in progress shall be prorated as to the percentage of progress completed at the date of termination or suspension. IV. TERM OF AGREEMENT The term of the Agreement shall be from the date of execution to completion of the work identified in the Scope of Work and in conformance with `Performance Schedule" of Exhibit A, unless this Agreement is terminated or suspended pursuant to Article III herein. V. GENERAL CONDITIONS A. Consultant covenants that neither they nor any officer or principal of their firm, have any interests nor shall they acquire any interest, directly or indirectly, which will conflict in any manner or degree with the performance of their services hereunder. Consultant further covenants that in the performance of this Agreement, they shall employ no person having such interest as an officer, employee, agent, or subcontractor. Consultant further covenants that Consultant has not contracted with nor is performing any services directly or indirectly, with the developer(s) and /or property owner(s) and /or firm(s) and /or partnerships and /or public agency(ies), owning property and /or processing an entitlement application for property in the City or its Area of Interest, now or within the past one (1) year, and further covenants and agrees that Consultant and /or its subcontractors shall provide no service or enter into any contract with any developer(s) and /or property owner(s) and /or firm(s) and /or partnership(s) and /or public agency(ies), owning property and /or processing an entitlement application for property in the City or its Area of Interest, S: \Community Development \ADMIN \AGMTS\ Consultant\ Toll.CAJA.profservicesagmt.doc2 Professional Services Agreement Page 3 while under contract with the City of Moorpark and for a one (1) year time period following termination of this Agreement. B. City shall not be called upon to assume any liability for the direct payment of any salary, wage or other compensation to any person employed by Consultant performing services hereunder for City. C. Consultant is, and shall at all times, remain as to City, a wholly independent contractor. Neither the City nor any of its officers, employees, servants or agents, shall have control over the conduct of Consultant or of Consultants officers, employees or agents, except as herein set forth. Consultant shall not at any time or in any manner represent that it or any of its officers, employees or agents are in any manner employees of City. D. At the time of 1) termination of this Agreement; or 2) conclusion of all work, all original plans, documents, designs, drawings, reports, calculations, diskettes, computer files, notes, and other related materials, whether prepared by Consultant or their subcontractor(s), or obtained in the course of providing the services to be performed pursuant to this Agreement, shall become the sole property of City. Any word processing computer files provided to City shall use IBM compatible, Microsoft Word for Windows software. E. Consultant shall hold harmless, indemnify and defend City and its officers, employees, servants and agents and independent contractors, who serve in the role of City Manager, Assistant City Manager, Assistant to City Manager /City Clerk, Deputy City Manager, Director of Community Development, City Engineer, or City Attorney 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 by Consultant or City, except such damage as is caused by the sole negligence of City. City does not and shall not; waive any rights that it may have against Consultant by reason of Paragraph E, hereof, because of the acceptance by City or the deposit with City, of any insurance policy or certificate required pursuant to this Agreement. This hold harmless and indemnification provision shall apply regardless of whether or not said insurance policies are determined to be applicable to the claim, demand, damage, S: \Community Development \ADMIN \AGMTS\ Consultant\ Toll.CAJA.profservicesagmt.doc3 ,)00246 Professional Services Agreement Page 4 liability, loss, cost or expense described in Paragraph E hereof. F. Consultant shall secure from a good and responsible company or companies doing insurance business in the State of California, pay for, and maintain in full force and effect for the duration of this Agreement, the policies of insurance required by this paragraph and shall furnish to the City Clerk of the City, certificates of said insurance on or before the commencement of the term of this Agreement. Notwithstanding any inconsistent statement in any of said policies or any subsequent endorsement attached thereto, the protection offered by the policies shall: 1. Name City and its officers, employees, servants and agents and independent contractors serving in the role of City Manager, assistant City Manager, Assistant to City Manager /City Clerk, Deputy City Manager, Director of Community Development, City Engineer, or City Attorney, as additional insured with Consultant. 2. Bear an endorsement or have attached a rider whereby it is provided that in the event of cancellation or amendment of such policy for any reason whatsoever, City shall be notified by mail, postage prepaid, not less than thirty (30) days before the cancellation or amendment is effective. Consultant shall give City thirty (30) days written notice prior to the expiration of such policy. 3. Be written on an occurrence basis. G. Consistent with the provisions of Paragraph F, Consultant shall provide general public liability insurance, including automobile liability and property damage insurance, in an amount not less than one million dollars ($1,000,000.00) per occurrence and annual aggregate. H. Consistent with the provisions of Paragraph F, Consultant shall provide general public liability insurance as required by the California Labor Code. If any class of employees engaged by Consultant in work under this Agreement is not protected by the workers' compensation law, Consultant shall provide adequate insurance for the protection of such employees to the satisfaction of City. I. Consultant shall not assign this Agreement, or any of the rights, duties or obligations hereunder. It is understood S: \Community Development \ADMIN \AGMTS\ Consultant\ Toll.CAJA.profservicesagmt.doc4 Professional Services Agreement Page 5 and acknowledged by the parties that Consultant is uniquely qualified to perform the services provided for in this Agreement. J. The language contained in this Agreement shall take precedence over the language contained in any exhibit to this Agreement. K. Payment to Consultant shall be made by City within thirty (30) days of receipt of invoice, if the invoice is not contested or questioned by City. If City identifies a discrepancy between the invoice amount and the work tasks or products completed, City shall within fifteen (15) work days of receipt of the invoice, specify in writing the discrepancy. Consultant shall then either 1) provide support materials to satisfy City stated discrepancy; or 2) revise the invoice to reflect stated discrepancy. City shall then pay the revised or documented invoice within thirty (30) days of such revision or documentation. Each Consultant invoice must show details of hours and expenses and the project identification number(s) assigned by the Community Development Department in a format which is acceptable to City. L. City shall have the right to audit and inspect all payment and expense- related books and records kept by Consultant and any subcontractors in connection with the operation and services performed under this Agreement. Notification of audit shall be provided at least thirty (30) days before any such audit is conducted. M. Any notice to be given pursuant to this Agreement, shall be in writing and all such notices 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 Clerk City of Moorpark 799 Moorpark Avenue Moorpark, California 93021 To: Curtis Zacuto Christopher A. Joseph & Associates 31255 Cedar Valley Drive, Suite 222 Westlake Village, CA 91362 S: \Community Development \ADMIN \AGMTS\ Consultant\ Toll.CAJA.profservicesagmt.doc5 0.30248 Professional Services Agreement Page 6 Either party may, from time to time, by written notice to the other, designate a different address or contact person, which shall be substituted for the one above - specified. Notices, payments and other documents shall be deemed delivered, upon receipt by personal service or as of the second (2nd) day after deposit in the United States mail. N. Nothing contained in this agreement shall be deemed, construed or represented by City or Consultant or by any third person, to create the relationship of principal or agent, or of a partnership, or of a joint venture, or of any other association of any kind or nature between City and Consultant. 0. This Agreement constitutes the entire agreement of the parties concerning the subject matter hereof and all prior agreements or understanding, oral or written, are hereby merged herein. This Agreement shall not be amended in any way, except by a writing expressly purporting to be such an amendment, signed and acknowledged by both of the parties hereto. P. 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. Q. No waiver of any provisions of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any such waiver constitute a continuing or subsequent waiver of the same provision. No waiver shall be binding, unless executed in writing by the party making the waiver. R. In the event any action, lawsuit 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 judgment or decree rendered in such a proceeding shall include an award thereof. S. Cases involving a dispute between City and Consultant may be decided by an arbitrator, if both sides agree in writing, with costs proportional to the judgment of the arbitrator. S: \Community Development \ADMIN \AGMTS\ Consultant\ Toll.CAJA.profservicesagmt.doc6 0 ,00249 Professional Services Agreement Page 7 T. 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. U. 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. IV. RESPONSIBLE INDIVIDUAL The individual directly responsible for Consultant's overall performance of the Agreement provisions herein, above set forth and to serve as principal liaison between City and Consultant, shall be Curtis Zacuto, and no other individual may be substituted. The City's contact person in charge of administration of this Agreement, and to serve as principal liaison between Consultant and City, shall be the Director of Community Development or his /her designee. V. IMPLEMENTATION City shall provide Consultant with written notice in advance of the date at which these services are to be implemented, if different than the date of the Agreement. MR MR CITY OF MOORPARK: Steven Kueny, City Manager ATTEST: Deborah S. Traffenstedt City Clerk CHRISTOPHER A. JOSEPH & ASSOCIATES: Curtis Zacuto, Principal S: \Community Development \ADMIN \AGMTS\ Consultant\ Toll.CAJA.profservicesagmt.doc7 000250 Professional Services Agreement Page 8 Attachments: Exhibit A - Proposal to Provide Environmental Services for the Moorpark Country Club Estates Expansion Project, March 19, 2004. C: Barry K. Hogan, Community Development Director Joseph Fiss, Principal Planner Laura Stringer, Senior Management Analyst S: \Community Development \ADMIN \AGMTS\ Consultant\ Toll.CAJA.profservicesagmt.doc8 0- 0-0251 AGREEMENT BETWEEN CITY OF MOORPARK AND TOLL BROTHERS, INC. FOR COMPLETION OF AN INITIAL STUDY AND PROVISION OF RELATED SERVICES FOR THE TOLL BROTHERS, INC. PROJECT IN MOORPARK, CALIFORNIA. THIS AGREEMENT, made and entered into this day of , 2004, by and between the City of Moorpark, a municipal corporation, located in the County of Ventura, State of California ( "City ") and Toll Brothers, Inc., a California corporation ( "Toll Brothers, Inc. "). W I T N E S S E T H WHEREAS, Toll Brothers, Inc. controls property located in the City of Moorpark identified as Assessor's Parcel Numbers: 500 -0- 220 -085 and 500 -0- 240 -065; and WHEREAS, on December 23, 2003, Toll Brothers, Inc. submitted its formal application to the City for General Plan Amendment No. 2003 -04, Zone Change No. 2003 -03, Tentative Tract Map No. 5463, Tentative Tract Map No. 5464, Residential Planned Development Permit No. 2003 -04, and Modification No. 6 to Residential Planned Development Permit No. 1994 -01; and WHEREAS, the City and Toll Brothers, Inc., both jointly agree, that the Initial Study and related services required under the California Environmental Quality Act (CEQA) for these entitlement applications will be prepared for the City by Christopher A. Joseph & Associates; and WHEREAS, upon execution of the Agreement by City and Toll Brothers, Inc., City intends to enter into a Professional Services Agreement with Christopher A. Joseph & Associates, whereby Christopher A. Joseph & Associates shall be retained by City to complete the Initial Study and perform planning services for the City related to the Toll Brothers, Inc. entitlement applications, and the Christopher A. Joseph & Associates Professional Services Agreement ( "Christopher A. Joseph & Associates Agreement ") is attached hereto and incorporated herein as Exhibit "1 "; and WHEREAS, upon execution of this Agreement, Toll Brothers, Inc. shall be responsible for payment of all costs associated with the Christopher A. Joseph & Associates Agreement, as well as, costs for City administration of the Christopher A. Joseph & CC ATTACHMENT 2 0(-,)0 2 5 2 Development Services Agreement Page 2 Associates Agreement and related review of documents prepared pursuant to the Christopher A. Joseph & Associates Agreement, as identified herein and within Exhibit "1" of this Agreement; and WHEREAS, Toll Brothers, Inc. and the City acknowledge that the provisions of Chapter 4.5 of Division 1 of Title 7 of the Government Code (Section 65920 et seq.) are inapplicable, because approval of the requested project requires legislative actions by the City Council. NOW, THEREFORE, in consideration of the mutual covenants, benefits and premises contained herein, the parties agree as follows: I. PAYMENT TERMS Toll Brothers, Inc. shall pay City for one - hundred percent (1000) of any City costs related to administering, preparing, reviewing, and processing the Initial Study and entitlements requested for the Toll Brothers, Inc. project in Moorpark, California. Prior to City execution of the Christopher A. Joseph & Associates Agreement, Toll Brothers, Inc. shall submit to the City an initial deposit totaling $83,088.00. The total $83,088.00 deposit requirement is based on the estimated Christopher A. Joseph & Associates contract services totaling $72,250.00 and City contract overhead charge of fifteen percent (15%). Failure of Toll Brothers, Inc. to pay the total $83,088.00 initial deposit, referenced in the above paragraph, or to pay any additional deposit required to fund staff or contract staff services, within thirty (30) days of receipt of the City's written request for deposit, may result in the termination or suspension of work on the preparation and processing of the Initial Study and related entitlement applications, consistent with Article III of this Agreement, and would result in a change to the date for completion of the Initial Study, consistent with Article II of this Agreement. II. INITIAL STUDY COMPLETION The City and Toll Brothers, Inc. herein for completion of the Initial Study shall from the date of execution of this agreement the initial deposit, as required in Article be extended if additional information i applicant to complete the Initial Study. agree that the date be sixty (60) days and full payment of II. This date may S needed from the In no event or S: \Community Development \ADMIN \AGMTS\ Consultant \Tolldevservicesagmt.doc 030253 Development Services Agreement Page 3 circumstance, shall this Agreement be deemed to require City approval or certification of the environmental documentation to be prepared for the Toll Brothers, Inc. project or to require City approval of the requested entitlements. III. TERMINATION OR SUSPENSION This Agreement may be terminated by Toll Brothers, Inc. at any time and for any reason, upon giving the City notice of termination of this Agreement, and the City shall, within ten (10) working days of receipt of said notice from Toll Brothers, Inc., exercise its right to terminate the Professional Services Agreement with the Christopher A. Joseph & Associates. In the event Toll Brothers, Inc. exercises its right to terminate, Toll Brothers, Inc. agrees that it will compensate the City for all work completed in accordance with the Christopher A. Joseph & Associates Agreement, as well as, for all work performed by City staff, City contract employees and consultants, up to the date of termination of this Agreement and the Professional Services Agreement. Compensation for work in progress shall be prorated as to the percentage of progress completed at the date of termination. This Agreement may be terminated or suspended, with or without cause, by the City at any time with no less than ten (10) working days written notice of such termination or suspension. In the event of such termination or suspension, Toll Brothers, Inc. shall compensate the City for all work completed in accordance with the Christopher A. Joseph & Associates Agreement, as well as, for all work performed by City staff, City contract employees and consultants, up to the later date of termination or suspension of both this Agreement and the Christopher A. Joseph & Associates Professional Services Agreement. Compensation for work in progress shall be prorated as to the percentage of progress completed at the date of termination or suspension. IV. COPIES OF WORK PRODUCT Toll Brothers, Inc. shall have a right to receive from the City, at its sole discretion and cost, copies of all completed Christopher A. Joseph & Associates work products as identified in Exhibit "1," with the exception of draft staff reports. One copy of each final staff report will be provided to Toll Brothers, Inc. following distribution to the appropriate decision - making body for a scheduled public meeting or hearing. S: \Community Development \ADMIN \AGMTS\ Consultant \Tolldevservicesagmt.doc ®00*,54 Development Services Agreement Page 4 V. RESERVATION OF RIGHTS In no event or circumstance, shall this Agreement be deemed to limit or otherwise be deemed a waiver of any right, obligation, claim, cause of action, or defense that either party may have under any applicable California or federal law. VI. GOVERNING LAW This Agreement shall be governed by, and construed in accordance with the laws of the State of California. VII. ADDITIONAL DOCUMENTS Each party hereto agrees to execute any and all documents and writings which may be necessary or expedient to, and to do such further acts for, the purposes hereof. VIII. SUCCESSORS, ASSIGNS This Agreement shall be binding upon and inure to the benefit of all heirs, successors, and assigns. IX. TERM OF AGREEMENT The term of this Agreement shall be the time period required to complete all of the work tasks identified in Exhibit "1" of this Agreement, unless this Agreement is terminated or suspended pursuant to Article III herein. X. MISCELLANEOUS PROVISIONS A. Toll Brothers, Inc., including any affiliated company, partnership, or corporation, agrees not to hire Christopher A. Joseph & Associates, or any subcontractors retained by Christopher A. Joseph & Associates, or its affiliated companies, partnerships or corporation, in fulfillment of Christopher A. Joseph & Associates' Agreement with the City to perform any work during the term of this Agreement and for a one (1) year period following termination or suspension of this Agreement, without the prior written consent of the City. B. Toll Brothers, Inc. shall hold harmless, indemnify and defend the City and its officers, employees, servants, agents, and independent contractors who serve in the role of City Manager, Assistant City Manager, Assistant to City S: \Community Development \ADMIN \AGMTS\ Consultant \Tolldevservicesagmt.doc 0 02-1SS Development Services Agreement Page 5 Manager /City Clerk, Deputy City Manager, Director of Community Development, City Engineer, or City Attorney 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 misconduct, negligent acts, errors or omissions of Toll Brothers, Inc. or any of its officers, employees or agents in the performance of this Agreement, except such damage as is caused by the sole negligence of the City. Toll Brothers, Inc. shall also hold harmless the City and its officers, employees, servants, agents, and independent contractors who serve in the role of City Manager, Assistant City Manager, Assistant to City Manager /City Clerk, Deputy City Manager, Director of Community Development, City Engineer, or City Attorney 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 misconduct, negligent acts, errors or omissions of Christopher A. Joseph & Associates or any of its officers, employees or agents in the performance of the Christopher A. Joseph & Associates Agreement, except such damage as is caused by the sole negligence of the City. C. Any notice to be given pursuant to this Agreement shall be in writing, and all such notices 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 Clerk City of Moorpark 799 Moorpark Avenue Moorpark, CA 93021 To: Craig C. Messi Senior Project Manager Toll Brothers Inc. 920 -G Hampshire Road, Suite 15 Westlake Village, CA 91361 -2815 Either party may, from time to time, by written notice to the other, designate a different address or contact person, which shall be substituted for the one above specified. Notices, payments and other documents shall be deemed delivered upon receipt by personal service or as of the third (3rd) day after deposit in the United States mail. S: \Community Development \ADMIN \AGMTS\ Consultant \Tolldevservicesagmt.doc � L` Development Services Agreement Page 6 D. Nothing contained in construed or represented by the by any third person, to create agent, or of a partnership, or other association of any kind Toll Brothers, Inc. this Agreement shall be deemed, City, of Toll Brothers, Inc. or the relationship of principal or of a joint venture, or of any or nature between the City and E. 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 such an amendment, signed and acknowledged by both of the parties hereto. F. 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. G. 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. H. In the event any action, lawsuit 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 judgment or decree rendered in such a proceeding shall include an award thereof. I. Cases involving a dispute between the City and Toll Brothers, Inc. may be decided by an arbitrator, if both sides agree in writing, with costs proportional to the judgment of the arbitrator. J. 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. S: \Community Development \ADMIN \AGMTS\ Consultant \Tolldevservicesagmt.doc 0, 0025 7 Development Services Agreement Page 7 K. The captions and headings of the various Articles and Paragraphs of this Agreement are for convenience and identification only and shall not be deemed to limit or define the content of the respective Articles and Paragraphs hereof. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the day and year first above written. CITY OF MOORPARK: 11-30 Steven Kueny City Manager ATTEST: Deborah S. Traffenstedt City Clerk Exhibit l: Professional of Moorpark Associates TOLL BROTHERS, INC: Im XXXXXXXXXXX President, Chairman or CEO VP, Treasurer or CFO Services Agreement between City and Christopher A. Joseph & S: \Community Development \ADMIN \AGMTS\ Consultant \Tolldevservicesagmt.doc ()