HomeMy WebLinkAboutAGENDA REPORT 2023 0215 CCSA REG ITEM 10DCITY OF MOORPARK, CALIFORNIA
City Council Meeting
of February 15, 2023
ACTION APPROVED STAFF
RECOMMENDATIONS, INCLUDING
ADOPTION OF RESOLUTION NO. 2023-
4160. (ROLL CALL VOTE: UNANIMOUS)
BY A. Hurtado.
D. Consider Approval of Estoppel Certificate for Development Agreement by and
between the City of Moorpark, A-B Properties, and Burns Pacific Construction,
Inc.; Authorize the City Manager to Execute a Subdivision Improvement
Agreement between the City of Moorpark and Hecate Grid Gwent Land, LLC;
Terminate Subdivision Improvement Agreement between City of Moorpark and
Burns Pacific Construction, Inc.; and Consider Resolution Exonerating Surety
Bonds from Burns Pacific Construction, Inc. Staff Recommendation: 1) Authorize
the Mayor to execute the Estoppel Certificate; and 2) Authorize the City Manager
to execute the Subdivision Improvement Agreement with the buyer, subject to final
language and acceptance of the provided sureties for all improvements, as
required by the Subdivision Improvement Agreement; and 3) Upon execution of a
new Subdivision Improvement Agreement with the buyer, authorize the City
Manager to terminate the current Subdivision Improvement Agreement with Burns
Pacific Construction, Inc.; and 4) Adopt Resolution No. 2023-4160, exonerating
surety bond numbers 4418694, 4418695, 4418697, 4418698, 4444897, 4444898,
and 4444899; and 5) Direct the City Clerk to exonerate surety bond numbers as
shown in the agenda report and draft resolution after the Subdivision Improvement
Agreement between the City and the buyer is fully executed. (Staff: Daniel Kim,
City Engineer/Public Works Director) (ROLL CALL VOTE REQUIRED)
Item: 10.D.
MOORPARK CITY COUNCIL
AGENDA REPORT
TO: Honorable City Council
FROM: Daniel Kim, City Engineer/Public Works Director
DATE: 02/15/2023 Regular Meeting
SUBJECT: Consider Approval of Estoppel Certificate for Development
Agreement by and between the City of Moorpark, A-B Properties, and
Burns Pacific Construction, Inc.; Authorize the City Manager to
Execute a Subdivision Improvement Agreement between the City of
Moorpark and Hecate Grid Gwent Land, LLC; Terminate Subdivision
Improvement Agreement between City of Moorpark and Burns
Pacific Construction, Inc.; and Consider Resolution Exonerating
Surety Bonds from Burns Pacific Construction, Inc.
BACKGROUND
On February 15, 2013, the City and A-B Properties (now Burns Pacific Construction,
Inc.) entered into a Development Agreement for the future development of real property
that is now Tract 5906. On May 15, 2013, the City Council adopted Resolution No.
2013-3182, approving Tentative Tract Map No. 5906, to resubdivide 17 industrial lots on
34.7-acres with certain Conditions of Approval. On May 5, 2021, the City Council
adopted Resolution No. 2021-4005, approving Final Tract Map No. 5906, and entered
into a Subdivision Improvement Agreement with the subdivider to ensure compliance to
the requirements for phasing and construction responsibilities for Tentative Tract No.
5906; including sureties for performance for all grading, construction of storm drainage
facilities and utilities, private and public streets, and other private and public
improvements, both onsite and offsite.
DISCUSSION
Prior to filing Tract Map No. 5906 with the City Engineer, the developer/subdivider
entered into a Memorandum of Option Agreement for Purchase of Real Estate with
Hecate Grid Gwent Storage 1, LLC, a Delaware Limited Liability Company. As part of
the process to transfer Tract No. 5906 and all its obligations, per the Development
Agreement and Conditions of Approval for the Tentative Map, the prospective buyer,
Hecate Grid, is requesting an Estoppel Certificate from the City. Pursuant to Section 13
of the Development Agreement, Estoppel Certificate, the developer and its successors
Item: 10.D.
647
Honorable City Council
02/15/2023 Regular Meeting
Page 2
may request written notice certifying that the Agreement is in full force and effect, has
been or has not been amended, and if any party to the Agreement is in breach.
Attachment 1 contains the Estoppel Certificate and states and confirms the following:
1. The City acknowledges and agrees that the sellers (A-B Properties/Burns Pacific
Construction, Inc.) have the right the assign the Development Agreement to a
buyer on the terms and conditions set forth in the Development Agreement.
2. The sellers have fulfilled all obligations required to be satisfied under the
Development Agreement as of the Estoppel Certificate date.
3. The Development Agreement is currently in full force and effect and has not been
modified nor amended.
4. There has been no Event of Default, as defined in the Development Agreement.
As part of the transfer of obligations for Tract No. 5906, a new Subdivision Improvement
Agreement will need to be entered into with the buyer. Attachment 2 contains the draft
Subdivision Improvement Agreement with new owner information and replacement
sureties. Once the new Subdivision Improvement Agreement is entered by and
between the City and the buyer (Hecate Grid), the existing Subdivision Improvement
Agreement with the current developer (A-B Properties/Burns Pacific Construction, Inc.)
can be terminated. Attachment 3 contains a draft resolution exonerating the surety
bonds from Burns Pacific Construction, Inc.
ENVIRONMENTAL DETERMINATION
The California Environmental Quality Act (CEQA) does not apply to activities that will
not result in a direct or reasonably foreseeable indirect physical change in the
environment or is otherwise not considered a project as defined by CEQA Statute
§21065 and CEQA State Guidelines §15060(c)(3) and §15378. The approval of an
Estoppel Certificate and execution of a new Subdivision Improvement Agreement under
different ownership on the same project meets the above criteria and is not subject to
CEQA. No additional environmental review is required.
FISCAL IMPACT
There is no fiscal impact associated with this action.
COUNCIL GOAL COMPLIANCE
This action does not support a current strategic directive.
648
Honorable City Council
02/15/2023 Regular Meeting
Page 3
STAFF RECOMMENDATION (ROLL CALL VOTE REQUIRED)
1. Authorize the Mayor to execute the Estoppel Certificate (Attachment 1); and
2. Authorize the City Manager to execute the Subdivision Improvement Agreement
(Attachment 2) with the buyer, subject to final language and acceptance of the
provided sureties for all improvements, as required by the Subdivision
Improvement Agreement; and
3. Upon execution of a new Subdivision Improvement Agreement with the buyer,
authorize the City Manager to terminate the current Subdivision Improvement
Agreement with Burns Pacific Construction, Inc.; and
4. Adopt Resolution No. 2023-____, exonerating surety bond numbers 4418694,
4418695, 4418697, 4418698, 4444897, 4444898, and 4444899; and
5. Direct the City Clerk to exonerate surety bond numbers as shown in the agenda
report and draft resolution after the Subdivision Improvement Agreement
between the City and the buyer is fully executed.
Attachment 1: Estoppel Certificate for Development Agreement, Tract 5906
Attachment 2: Subdivision Improvement Agreement with Hecate Grid Gwent Land LLC
Attachment 3: Draft Resolution No. 2023-____
649
ESTOPPEL CERTIFICATE FOR DEVELOPMENT AGREEMENT
This Estoppel Certificate for Development Agreement (“Estoppel”) is made as February ____, 2023
(“Estoppel Date”), by the City of Moorpark, a California municipality (“Moorpark” or “City”) and A-B
Properties, a California general partnership (“A-B”), Burns Pacific Construction, Inc. (“BPC”, collectively,
with A-B, “Sellers”).
Recitals
A. Moorpark and A-B entered into that certain Development Agreement dated February 15,
2013 and recorded on February 22, 2013 as Instrument No. 20130222-00033184-0 1/31 in the Official
Records of Ventura County, California (the “Development Agreement”).
B. Sellers desire to assign its rights and obligations under the Development Agreement to
Hecate Grid Gwent Land LLC, a Delaware limited liability company (“Buyer”), and Buyer desires that
Moorpark and Sellers provide this Estoppel to Buyer.
NOW, THEREFORE, pursuant to Section 13 of the Development Agreement, Moorpark and
Sellers hereby make the acknowledgements and certifications set forth in this Estoppel.
1. Estoppel. Moorpark acknowledges and agrees that Sellers have the right to assign the
Development Agreement from Sellers to Buyer on the terms and conditions set forth in the Development
Agreement.
2. Status of Obligations. Moorpark and Sellers hereby certify to Buyer as follows:
a. Sellers have fulfilled all obligations required to be satisfied under the Development
Agreement as of the Estoppel Date, including but not limited to those obligations described in
Exhibit A attached hereto and incorporated herein by this reference.
b. The Development Agreement is presently in full force and effect, and has not been
modified or amended. No Event of Default (as defined in the Development Agreement) has
occurred, and no event that, with the giving of notice or the passage of time, or both, would be an
Event of Default has occurred and is continuing under the Development Agreement.
3. Counterparts. This Estoppel may be executed in one or more identical counterparts, all of
which, when taken together shall constitute one and the same instrument.
4. Governing Law. This Estoppel shall be governed by and construed in accordance with the
laws of the State of California.
5. Partial Invalidity. The provisions hereof shall be deemed independent and severable, and
the invalidity or enforceability of any one provision shall not affect the validity or enforceability of any
other provision hereof.
6. Successors and Assigns. This Estoppel shall inure to the benefit of and be binding upon
Moorpark, Sellers, Buyer and their respective successors and assigns.
[signature page to follow]
ATTACHMENT 1
650
IN WITNESS WHEREOF, Moorpark and Sellers have executed this Estoppel on the date first
above written.
Moorpark:
City of Moorpark,
a California municipality
By: _______________________________
Name: ____________________________
Its: _______________________________
Sellers:
A-B Properties,
a California general partnership
By: _______________________________
Name: ____________________________
Its: _______________________________
Burns Pacific Construction, Inc.,
a California corporation
By: _______________________________
Name: ____________________________
Its: _______________________________
651
Exhibit A
Sellers’ Completed Obligations Under the Development Agreement
Section Requirement
6.6 On the operative date of this Agreement, Developer shall pay all outstanding City
processing and environmental processing costs related to the project and preparation of
this Agreement
City confirms that no fees under the Development Agreement are outstanding or
otherwise due and payable as of the Estoppel Date.
6.9
In addition to fees specifically mentioned in this Agreement, Developer agrees to pay
all City capital improvement, development, and processing fees at the rate and amount
in effect at the time the fee is required to be paid. Said fees include but are not limited
to Police Facilities Fees, Fire Facilities Fees, Library Facilities Fees, Art in Public
Places fees, entitlement processing fees, and plan check and permit fees for buildings,
and public improvements. Developer further agrees that unless specifically exempted
by this Agreement, it is subject to all fees imposed by City at the operative date of this
Agreement and such future fees imposed as determined by City in its sole and unfettered
discretion so long as said fee is imposed on similarly situated properties.
City confirms that no fees under the Development Agreement are outstanding or
otherwise due and payable as of the Estoppel Date.
6.14 Prior to any subdivision or new use of the property, Developer agrees to acquire and
construct, at its sole cost, dedicated public access to the properties, as approved by the
City Council. Secondary access to comply with City and public safety requirements
shall also be provided at their sole cost.
City confirms that Sellers’ obligation under this section is addressed in the “Subdivision
Improvement Agreement” by reference to “Recorded Final Tract Map No. 5906” dated
June 7, 2021.
6.17 Developer shall grant, in a form acceptable to City, a conservation easement to retain
that portion of the Property west of and including the Gabbert Canyon drain in a
predominantly open space condition …. The conservation easement shall be recorded
concurrently with the recordation of the first final subdivision map for the Property.
City confirms that the Covenant Running With the Land by and between City and A-B
recorded November 22, 2013 as Instrument No. 20131122-00190595-0 of the Official
Records of Ventura County satisfies this requirement.
6.18 Prior to approval of a Final Map, Developer shall execute in favor of City and record in
the Office of the County Recorder of the County of Ventura a covenant running with
the Land (Covenant) as set forth in Exhibit “B” attached hereto and incorporated herein
to limit use of the Property.
City confirms that the Covenant Running With the Land by and between City and A-B
recorded November 22, 2013 as Instrument No. 20131122-00190595-0 of the Official
Records of Ventura County satisfies this requirement.
6.20 Prior to approval of the final map for Tract No. 5906 for the Property, Developer shall
submit and gain approval from City Manager of an Implementation Plan. The
Implementation Plan shall address the requirements for phasing and construction
652
responsibilities of Developer and any successors including sureties for performance for
all grading, construction of storm drains and utilities, private and public streets, and
other private and public improvements on or offsite required by Tract 5906 and this
Agreement. The Implementation Plan shall also address entities responsible and method
of timing of guarantee for each component of Developer's obligations pursuant to Tract
5906 and this Agreement, and no portion of the responsibility for these improvements
may be transferred to owners of any individual lots in Tract 5906. The approval of the
Implementation Plan and any amendments thereto shall be at the City Manager's sole
discretion. Prior to sale or transfer of ownership of any portion of Tract 5906, except
individual lots, Developer shall seek City Manager approval of an amendment to the
Implementation Plan to address the responsibilities of each entity.
City confirms that the agreement entitled “Subdivision Improvement Agreement” by
reference to “Recorded Final Tract Map No. 5906” dated June 7, 2021, serves as the
Implementation Plan as required to satisfy this condition (the Implementation Plan).
6.22 Prior to the recording of the Final Map for the Project, a Community Facilities District
or other funding mechanism to the satisfaction of the City Council, shall be established
to provide funding for improvements to North Hills Parkway from the future eastern
Property access road along the east-west section of North Hills Parkway to Gabbert
Road and Gabbert Road from North Hills Parkway to a point one-hundred and twenty-
five (125) feet north of the railroad right-of-way. A full or partial buyout in an amount
and timing to the satisfaction of the City Council may substitute for the establishment
of a district or other funding mechanism.
City confirms that the Declaration of Covenants, Conditions and Restrictions and
Reservation of Easements for the North Hills Industrial Park, recorded on August 31,
2022, as Document No. 2022000089840 of the Official Records of Ventura County
satisfies this requirement.
653
Tract 5906
Hecate Grid Gwent Land LLC
Subdivision Improvement Agreement 1
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Moorpark
799 Moorpark Avenue
Moorpark, California 93021
Attn: City Clerk
NO FEE REQUIRED PURSUANT TO:
Government Code Sections 6103 and
27383
SPACE ABOVE THIS LINE FOR RECORDER'S USE
SUBDIVISION IMPROVEMENT AGREEMENT
SUBDIVISION REFERENCE DATA
RECORDED FINAL TRACT MAP NO. 5906 (“Final Map” herein)
BASED ON TENTATIVE MAP NO. 5906
NAME OR TRACT NUMBER OF
SUBDIVISION:
TRACT 5906 – North Hills Industrial Park
(“Subdivision” herein)
NAME AND ADDRESS OF
OWNER(S):
Hecate Grid Gwent Land LLC
621 W. Randolph Street, Suite 200
Chicago, IL 60661
(“Subdivider” herein)
CITY COUNCIL RESOLUTION OF
APPROVAL NO.:
2013-3182 Tentative Tract No. 5906
(“Resolutions of Approval” herein)
IMPROVEMENT PLANS NO.: TRACT 5906: (Grading) 18-ML-11080
TRACT 5906 (Streets), 18-ML-11081
TRACT 5906: (Storm Drain), 18-ML-11082
TRACT 5906: (Sewer) 18-ML-11083
TRACT 5906: (Domestic Water) 18-ML-
11084
TRACT 5906: (Collectively “Improvement
Plans” herein)
ATTACHMENT 2
654
Tract 5906
Hecate Grid Gwent Land LLC
Subdivision Improvement Agreement 2
ESTIMATED TOTAL COSTS: IMPROVEMENTS $7,458,009.04
GRADING $1,104,232.80
TOTAL: $8,562,241.84
ESTIMATED MONUMENTATION COST:
(to be subject to separate deposit)
TRACT 5906 $47,398.59
FORM OF IMPROVEMENT SECURITY: [X] AAA Corporate surety bonds
[ ] Deposit of money
NAME AND ADDRESS OF CORPORATE
SURETY (if applicable):
To be determined
SURETY BOND NUMBERS (if applicable):
Tract 5906 Improvements:
Bond No. xxxxx (Tract 5906
Performance and Payment)
$4,304,405.16
Grading:
Bond No. xxxxx (Tract 5906)
$1,104,232.80
Improvements to North Hills Parkway
along Project Frontage, Gabbert/
Poindexter-Railroad Crossing and 125
feet north of Railroad Crossing:
Bond No. xxxxx (Tract 5906
Performance and Payment)
$1,201,052.03
Design/Construct 1800 LF Perimeter
Wall:
Bond No. xxxxx (Tract 5906
Performance and Payment)
$430,829.54
Improvements to North Hills Parkway
from east Tract Boundary to Gabbert
Road, Gabbert Road from North Hills
Parkway to 125 feet north of Railroad
Crossing:
Bond No. xxxxx (Tract 5906
Performance and Payment)
$1,521,722.31
North Hills Parkway Monumentation:
655
Tract 5906
Hecate Grid Gwent Land LLC
Subdivision Improvement Agreement 3
Bond No. xxxxx (Tract 5906
Monumentation Bond)
$23,592.80
Tract 5906 Monumentation:
Bond No. xxxxx (Tract 5906
Monumentation Bond)
$23,805.79
EFFECTIVE DATE OF AGREEMENT:
(to be inserted by City)
COMPLETION PERIOD: All improvements of Tract 5906, (including the complete
water and sewer system) shall be completed by June 7, 2026, with the exception of
future North Hills Parkway, Gabbert Road, and the North Hills Parkway Railroad
Undercrossing nearest to the Subdivision’s southerly property line.
* * * * * * * * * * * * * * * * * * * * * *
656
TABLE OF CONTENTS
Page
Tract 5906
Hecate Grid Gwent Land LLC
Subdivision Improvement Agreement 3
1. SUBDIVIDER’S OBLIGATION TO CONSTRUCT IMPROVEMENTS ....................... 5
2. SOILS TESTING AND REPORT ............................................................................... 7
3. SPECIFICATIONS FOR IMPROVEMENTS .............................................................. 8
4. INSPECTION OF WORK AND FINAL ACCEPTANCE ............................................. 8
5. GUARANTEE AND WARRANTY OF THE IMPROVEMENTS .................................. 9
6. TIME EXTENSIONS ................................................................................................ 10
7. IMPROVEMENT SECURITY .................................................................................. 10
8. REDUCTION OR RELEASE OF IMPROVEMENT SECURITY............................... 12
9. INDEMNIFICATION OF CITY BY SUBDIVIDER ..................................................... 14
10. INSURANCE ......................................................................................................... 16
11. OWNERSHIP OF THE IMPROVEMENTS ............................................................ 21
12. DEFAULT AND BREACH BY THE SUBDIVIDER AND REMEDIES OF
THE CITY ......................................................................................................... 21
13. RELATIONSHIP OF THE PARTIES ...................................................................... 23
14. ASSIGNMENT....................................................................................................... 23
15. NOTICES .............................................................................................................. 24
16. ENTIRE AGREEMENT ......................................................................................... 24
17. APPLICABILITY .................................................................................................... 24
18. SEVERABILITY ..................................................................................................... 25
19. INCORPORATION OF SUBDIVISION REFERENCE DATA AND
RECITALS ........................................................................................................ 25
20. GOVERNING LAW ................................................................................................ 26
21. EFFECTIVE DATE OF THE AGREEMENT .......................................................... 26
657
Tract 5906
Hecate Grid Gwent Land LLC
Subdivision Improvement Agreement 4
THIS SUBDIVISION IMPROVEMENT AGREEMENT (“Agreement”) is made and
entered into by and between the City of Moorpark, a municipal corporation (“City”), and
the Subdivider whose name and address is set forth above in the Subdivision Reference
Data.
RECITALS
A. Subdivider owns property that it has presented to the City for approval and
recordation of Final Maps, identified in the Subdivision Reference Data on pages 1, 2 and
3 of this Agreement, or a proposed subdivision pursuant to the Subdivision Map Act of
the State of California and the City’s ordinances and regulations relating to the filing,
approval and recordation of subdivision maps (collectively referred to herein as the
“Subdivision Laws”).
B. A tentative map of the Subdivisions was previously approved by City, subject
to the Subdivision Laws and to the City’s standard requirements and conditions of
approval contained in the City Council’s Resolutions of Approval, a copy of which are on
file in the Office of the City Clerk and which is incorporated herein by this reference.
C. The Subdivision Laws establish, as a condition precedent to the approval of a
Final Map, that the Subdivider comply with the City Council’s Resolution of Approval and
either (i) complete, in compliance with City standards, all of the improvements and land
development work required by the Subdivision Laws and the City Council’s Resolution of
Approval; or (ii) enter into a secured agreement with the City to complete the
Improvements and land development work within a period of time specified by the City.
D. This Agreement is required per the conditions of approval for the Tentative
Tract Map, the Development Agreement adopted by Ordinance No. 416, the City’s
municipal code (Title 16), the California Government Code, and the Subdivision Map Act.
E. Subdivider is required to indemnify the City as per the conditions of approval
for the Tentative Tract Map, the Development Agreement, the City’s municipal code (Title
16), the California Government Code, and the Subdivision Map Act.
F. In consideration of approval and recordation of the Final Map for the Subdivision
by the City Council, Subdivider desires to enter into this Agreement whereby Subdivider
promises to install and complete, at its sole expense, all public and private improvement
work required by the City for the Subdivisions. Subdivider has secured this Agreement
by improvement security required by the Subdivision Laws and approved by the City.
G. Improvement Plans, and related specifications, numbered as designated above
in the Subdivision Reference Data, for the construction, installation and completion of the
Improvements, have been prepared by the Subdivider, approved by the City Engineer,
and are on file in the office of the City Engineer. Said Improvement Plans, and related
specifications, subsequently modified by the mutual written agreement of the parties, are
hereby referred to as the “Improvement Plans” and are incorporated herein by this
reference. Any improvement to be constructed pursuant to the Improvement Plan,
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Tract 5906
Hecate Grid Gwent Land LLC
Subdivision Improvement Agreement 5
including public improvements and private street improvements, is hereby referred to
individually as an “Improvement” and collectively as the “Improvements”.
NOW, THEREFORE, in consideration of the approval and recordation by the City
Council of the recorded Final Map of the Subdivisions, Subdivider and City agree as
follows:
1. SUBDIVIDER’S OBLIGATION TO CONSTRUCT IMPROVEMENTS
A. Subdivider shall, at its sole expense, and in compliance with the
provisions of the Subdivision Laws, the Improvement Plans, all Conditions of the Vesting
Tentative Map and Tentative Map approvals, all applicable City standards and fees, and
in a good and workmanlike fashion, furnish, construct, install and guarantee (as set forth
in Section 3) the Improvements, Grading, and Monumentation more specifically described
in the tentative map and in the City Council’s Resolutions of Approval relating thereto
(collectively, the “Improvements”).
B. To the extent necessary to construct the Improvements, as determined
by the City Engineer, the Subdivider shall acquire and dedicate, or pay the cost of
acquisition by City of, all rights-of-way, easements and other interests in real property for
the construction or installation of the Improvements, free and clear of all liens and
encumbrances. The Subdivider’s obligations with regard to the acquisition by City of off-
site rights-of-way, easements and other interests in real property, if any, shall be subject
to a separate agreement between Subdivider and City.
C. Subject to any time extensions granted in accordance with Section 4,
Subdivider shall complete all Improvements within its respective “Completion Period”
specified in the Subdivision Reference Data; provided, however, that if the City Engineer
reasonably determines in good faith that accelerated construction of the Improvements is
essential in order to protect the public health, welfare and safety, the City Engineer shall
give Subdivider not less than fifteen (15) business days' prior written notice to commence
or accelerate installation and construction of such Improvements, or any portion thereof.
The notice shall be in writing, and shall describe the work to be done by Subdivider, the
time within which the work will commence, the period within which the work will be
completed and identify the reasons that such early commencement is essential in order
to protect the public health, welfare and safety. All or any portions of said Improvements
may be required to be constructed or completed at a specified time, providing the
foregoing criteria is met. If the Subdivider objects to the commencement or acceleration
of the Improvements as specified by the City Engineer, Subdivider may appeal the
decision of the City Engineer to the City Council. Any such appeal shall be filed with the
City Clerk within 10 days after receipt by Subdivider of the written notice from the City
Engineer.
D. If the Improvements to be constructed by Subdivider include
monumentation, such monumentation shall be installed not later than thirty (30) days after
the City’s acceptance of all other Improvements pursuant to Section 2. As used herein,
“monumentation” shall mean the setting of survey monuments and tie points in
659
Tract 5906
Hecate Grid Gwent Land LLC
Subdivision Improvement Agreement 6
accordance with the Subdivision Laws, and the delivery to the City Engineer of tie notes
for said points.
E. Subdivider shall, at its sole expense, replace or repair all public
improvements, public utility facilities, and surveying or subdivision monuments which are
destroyed or damaged as a result of any work under this Agreement. Any such
replacement or repair shall be subject to the approval of the City Engineer and County
Surveyor.
F. In addition to, and separate from, the indemnity obligations contained in
Section 9 of this Agreement, and without limiting the City’s remedies under general
construction defect law, Subdivider shall be responsible for the care, repair and
maintenance of the Improvements until the latter of the following time periods: (i) the
category of Improvements is accepted in writing by the City; or (ii) the expiration of the
required one-year (or two years for all roads within the subdivision and for the onsite
portions of North Hills Parkway) guarantee and warranty period as specified herein; or
(iii) the expiration of any applicable period of time specified in a Development Agreement
(not including the term of any Development Agreement) involving the Subdivision or other
agreement or obligation imposed on the Subdivider, regarding the Subdivider's obligation
to maintain the Improvements. Neither City, nor its officers, agents and employees, shall
have any liability for any accident, loss or damage to the Improvements and that may
result from the construction of the Improvements prior to their completion and written
acceptance by the City.
G. In addition to, and separate from: (1) the indemnity obligations contained
in Section 9 of this Agreement, (2) the care, repair and maintenance provisions under
paragraph F of this Section 1 of this Agreement; and (3) the warranty and guarantee
provisions of Section 5 of this Agreement, Subdivider shall repair and correct, or be liable
to the City for any cost to repair and correct, any defect in the construction of the
Improvements that is identified by City within ten (10) years after City’s acceptance of the
Improvement, provided the City provides notice to Subdivider of the existence of the
defect within that time period, and the defect is caused directly or indirectly by the design,
construction, functionality, installation, assembly or workmanship of Subdivider. Nothing
contained in this paragraph is intended to limit or otherwise waive any right or cause of
action under applicable construction defect law that City may assert against Subdivider.
H. Subdivider shall, at its sole expense, obtain all necessary permits and
licenses for the construction and installation of the Improvements, give all necessary
notices, and pay all fees required by City ordinance or resolution and all taxes required
by law.
I. Not less than seven (7) days prior to commencement of work on the
Improvements, Subdivider shall give written notice to the City Engineer of the date fixed
for such commencement of work in order that the City Engineer shall have adequate time
to schedule all necessary inspections.
660
Tract 5906
Hecate Grid Gwent Land LLC
Subdivision Improvement Agreement 7
J. Subdivider shall pay all City fees and costs stipulated in the latest fee
resolution as adopted by the City Council from time to time as required for the
development of the SUBDIVISION, including but not limited to, the following:
1. Building Permit Fees – to be paid at the time of building permit
issuance;
2. Final Map Filing Fee – to be paid at time of filing final map;
3. Final Map Plan Check Fees --- to be paid from cash deposit
established at time of filing final map;
4. Final Map Monumentation Fees – to be paid from cash deposit
established at time of filing final map;
5. Plan Check and Review Fees – to be paid from cash deposit
established at time of filing improvement plans;
6. Encroachment Permit Fees – to be paid at time of application for
encroachment permit; and
7. Inspection Fees – to be paid from cash deposit established at time
of approval of improvement plans.
K. Subdivider shall provide City with final Record Drawings of all plans
developed for the Subdivision, showing all changes and as built conditions as specified
in the Tentative Tract Map Conditions of Approval, and shall provide electronic image files
of these final Record Drawings consistent with City electronic image file size and type
specifications, prior to the acceptance of improvements and release of bonds or other
security.
2. SOILS TESTING AND REPORT
A. Subdivider shall employ and pay for a Soils Engineer acceptable to the
City Engineer. The Soils Engineer shall perform materials testing, construction control
testing, interpretation of test results, and pavement design for the street portion of the
Improvements in accordance with the requirements set forth in Improvement Plans, and
Ventura County Road Standards and Standard Specifications for Public Works
Construction (Greenbook), as approved by City. Improvements shall include both
Improvements to remain private and Improvements that will be dedicated to or owned by
the City (Improvements within City right of way and property for public use).
B. The Soils Engineer shall provide City the reports containing the results
of the testing, the interpretation of the results and the pavement design done in connection
with the Improvement Plans and this Agreement. With the last report filed, the Soils
Engineer shall include a certificate that the testing, interpretation, and design have been
done properly in accordance with the applicable Ventura County Road Standards and the
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Subdivision Improvement Agreement 8
Greenbook, as approved by the City, and good engineering practices. All reports and the
certificates shall be mailed or delivered to City.
C. The street portion of the Improvements shall be constructed in
accordance with the pavement design, and any modification thereto, that is approved by
the City Engineer.
3. SPECIFICATIONS FOR IMPROVEMENTS
Subdivider shall construct, at Subdivider’s own expense, all of the following improvements
in compliance with the drawings, plans and specifications set forth below, which drawings,
plans and specifications are incorporated herein by this reference and made a part of this
Agreement as though set forth at length herein.:
A. Streets, storm drains and monuments described in the drawings, plans
and specifications under the following City documents and City Drawing No(s).:
Tract 5906 Grading (18-ML-11080); Tract 5906 Streets (18-ML-11081); Tract 5906 Storm
Drain (18-ML-11082); Tract 5906 Sewer (18-ML-11083); and Tract 5906 Domestic Water
(18-ML-11084) on file in the office of the City Engineer.
B. Water and sewer systems described in drawings, plans and
specifications under Ventura County Water Works District documents: Ventura County
Drawing No(s). 69998 through 70014 on file in the office of Ventura County's Public Works
Director, Ventura, California.
C. Storm drain, channel, and connection improvements described in
drawings, plans, and specifications under Ventura County Watershed Protection District
documents: Ventura County Permit No. 2018-064 Gabbert Canyon on file in the office of
Ventura County’s Public Works Director, Ventura, California.
Consistent with the offers of dedication shown on the Final Map, Subdivider irrevocably
offers the Improvements within City right of way and property, to City for public use, except
all water, sewer, and storm drainage and flood channel systems described in the
documents specified in paragraphs A, B, and C of this section, which are irrevocably
offered to the entities referred to in those paragraphs.
4. INSPECTION OF WORK AND FINAL ACCEPTANCE
A. Subdivider shall at all times maintain proper facilities and safe access
for inspection of the Improvements by the City Engineer and other City personnel and
inspection consultants.
B. Upon completion of the work on all or any category of the Improvements,
the Subdivider may request, in the form of a written letter, a final inspection by the City
Engineer. Within forty-five (45) days of receipt of the written letter request, the City
Engineer shall inspect the Improvements and provide written notice to Subdivider of the
list of items which have been found to be incomplete and the list of items which have been
found to be complete. If the City Engineer determines that all or any specified category
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Subdivision Improvement Agreement 9
of the Improvements have been completed in accordance with this Agreement and in
compliance with the Improvement Plans and all applicable City standards, then the City
Engineer shall acknowledge that determination in a report to the City Council. If the
Improvements that are completed are to be dedicated to or owned by the City
(Improvements within City right of way and property for public use), the City Engineer’s
determination shall be submitted to the City Council for final acceptance by the City,
unless such power to accept has been delegated by the City Council to the City Engineer
or some other officer of the City, in which case the final acceptance shall be subject to
the approval of that specified official. The acceptance of North Hills Parkway shall require
City Council approval, and this approval shall not be requested any earlier than the
completion of the two-year maintenance period required by section 6.20 of Development
Agreement. If the Improvements that are completed are to be dedicated to or owned by
a public entity other than the City, the Subdivider’s written request shall be submitted to
the applicable public entity or other owner, for final acceptance. Subdivider shall bear all
costs of inspection and determination of completeness in accordance with City’s formally
adopted fees and rates.
C. Acceptance of all or any specified category of public Improvements by
the City Council shall be made upon recommendation of the City Engineer following
inspection of said public Improvements pursuant to subparagraph B above. The City
Council shall act upon the City Engineer’s recommendation that such public
Improvements have been completed. Acceptance by the City Council or by the governing
body of the entity that is to accept dedication or ownership of the public improvements
shall not constitute a waiver by the City or such other public entity of any defects in the
public Improvements.
5. GUARANTEE AND WARRANTY OF THE IMPROVEMENTS
A. If, within a period of one year following acceptance by the City of the last
of the Improvements, any Improvements or part of any Improvements furnished, installed
or constructed by the Subdivider, or any of the work performed under this Agreement,
fails to comply with any requirements of this Agreement, or the Subdivision Laws, or the
Improvement Plans and related specifications, the Subdivider shall, without delay and
without cost to the City, repair, replace or reconstruct any defective or otherwise
unsatisfactory part or parts of the Improvements. Subdivider’s obligations hereunder shall
include the repair, replacement or reconstruction of all irrigation systems and all trees,
shrubs, ground cover and landscaping for such one year. Subdivider’s obligations for the
roads within the subdivision and for the onsite portions of the North Hills Parkway shall
continue for the two-year maintenance time period.
B. Should the Subdivider fail or refuse to act promptly or in accordance with
subparagraph A above, or should the exigencies of the situation require repair,
replacement, or reconstruction to be undertaken before the Subdivider can be notified
and can perform the necessary work, then the City may, in its discretion, make the
necessary repairs or replacements or perform the necessary reconstruction and draw
upon the Subdivider’s improvement security to reimburse itself for the costs incurred. If
the Subdivider’s improvement security does not cover the total cost of such repair,
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Subdivision Improvement Agreement 10
replacement, or reconstruction, the Subdivider shall reimburse the City for any excess
costs incurred.
C. The security furnished for the faithful performance of the Subdivider’s
obligation to construct and install the Improvements described herein shall include the
Subdivider’s liability and obligation hereunder to provide the one-year guarantee and
warranty of the Improvements and the two-year maintenance guarantee for all roads
within the subdivision and for North Hills Parkway Improvements.
6. TIME EXTENSIONS
A. Upon a showing by the Subdivider of good cause therefor, the duration
of the Completion Period for the Improvements (or any of them) may be extended by the
City Engineer in writing. As used herein, “good cause” may include, without limitation,
delay resulting from acts of God or force majeure, strikes, boycotts or similar job actions
by employees or labor organizations which prevent the conduct of the work; findings
made by a governmental entity that the site of a particular Improvement is of archeological
significance and, the order of any court.
B. A time extension may be granted without notice to any surety or sureties
of the Subdivider and shall not affect the validity of this Agreement nor release the surety
or sureties on any bond given as an improvement security pursuant to this Agreement.
C. As a condition of any time extension provided for herein, the City
Engineer may require the Subdivider to furnish new or modified improvement security
guaranteeing performance of this Agreement, as extended, in an increased amount as
necessary to compensate for any projected increase in the Estimated Total Cost of
Improvements, as determined by the City Engineer.
7. IMPROVEMENT SECURITY
A. Prior to City’s execution of this Agreement, Subdivider shall provide as
security to the City:
1. For Performance and Guarantee: Security in an amount equal to
one hundred percent (100%) of the Estimated Total Cost of the Improvements, including
Grading, as set forth above in the Subdivision Reference Data. The security shall be
issued by a bonding company licensed to issue bonds in the State of California and having
a Best rating of AAA. With this security, the form of which shall be subject to City
Attorney’s prior approval, the Subdivider assures faithful performance under this
Agreement and guarantees the Improvements for one year, two years for North Hills
Parkway, after the completion and acceptance of the last of such Improvements, against
any defective workmanship or materials or any unsatisfactory performance, pursuant to
Section 3 hereof. The City Engineer may at any time determine that a greater increase
in the amount of the security is necessary due to a greater increase in the cost of
construction of the Improvements or any of them. In such event, the Subdivider shall
provide the additional security within thirty (30) days after receiving demand and
justification therefor.
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Subdivision Improvement Agreement 11
2. For Payment: Security in an amount equal to one hundred
percent (100%) of the Estimated Total Cost of the Improvements, excluding Grading, as
set forth above in the Subdivision Reference Data. The security shall be issued by a
bonding company licensed to issue bonds in the State of California and having a Best
rating of AAA. With this security, the form of which shall be subject to City Attorney’s prior
approval, the Subdivider guarantees payment to contractors, subcontractors, and
persons renting equipment or furnishing labor or materials to them or to the Subdivider.
The City Engineer may at any time determine that a greater increase in the amount of the
security is necessary due to a greater increase in the cost of construction of the
Improvements or any of them. In such event, the Subdivider shall provide the additional
security within thirty (30) days after receiving demand and justification therefor.
B. If the improvement security is a corporate surety bond and, in the opinion
of the City, any surety or sureties thereon become insufficient, because (i) the surety
becomes insolvent; (ii) the surety's bond rating is downgraded; (iii) the surety declares
bankruptcy; or (iv) the surety is no longer deemed to be an admitted surety in California
by the California Department of Insurance, or the form of the surety or the amount is
found by City to be in error or insufficient, the Subdivider shall renew or replace any such
surety bond with good and sufficient surety or sureties within thirty (30) days after
receiving from City written demand therefor.
C. Improvement security consisting of corporate surety bonds, in a form
accepted by the City Attorney, shall be submitted to the City Engineer and then kept on
file with the City Clerk. If a corporate surety bond is replaced by another approved bond,
the replacement shall be submitted to the City Engineer and, upon filing with the City
Clerk, shall be deemed to have been made a part of and incorporated into this Agreement.
Upon submission to the City Engineer and then filing with the City Clerk of a replacement
bond, the former improvement security shall be released, following written approval of the
City Engineer.
D. The security furnished for the faithful performance of the Subdivider’s
obligation to construct and install the Improvements described herein shall include the
Subdivider’s liability and obligation hereunder to provide the one-year guarantee and
warranty of the Improvements and two-year maintenance guarantee for North Hills
Parkway, and accordingly, shall not be fully released until after the City Engineer’s written
determination that the Improvements are not defective, and City Council approval of
surety exoneration, following the completion of the one-year warranty period or the two-
year maintenance guarantee period for North Hills Parkway.
E. Modifications of the Improvement Plans and related specifications, and
modifications of the Improvements, not exceeding ten percent (10%) of the original
Estimated Total Cost of the Improvements, shall not relieve or release any improvement
security furnished by Subdivider pursuant to this Agreement. If any such modifications
exceed ten percent (10%) of the Estimated Total Cost of the Improvements, Subdivider
shall furnish additional improvement security for performance and guarantee, and for
payment, as required by subparagraph A above, for one hundred percent (100%) of the
revised Estimated Total Cost of the Improvements.
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Subdivision Improvement Agreement 12
F. Subject to any time extensions granted in accordance with Section 6
herein, the Subdivider shall be in default if the Subdivider has not completed all
improvements (including the complete water and sewer system) within five years from the
Execution Date of the Agreement and has not repaired any defects in the completed
Improvements within the one-year guarantee and warranty period (or the two-year
maintenance guarantee period for onsite road and for the onsite portion of the North Hills
Parkway) until one of the following occurs:
1) The City accepts the Subdivider’s constructed improvements and
releases the Subdivider’s bonds; or
2) The developer of the properties of the adjacent Subdivisions commence
construction of their portion of North Hills Parkway.
G. Alternatively, in the event of a default by the Subdivider pursuant to
Section 12, and after written notice to Subdivider and reasonable opportunity to cure,
City, at its sole option, shall have the right, without limiting any other rights and/or
remedies available to City at law or in equity, to draw upon or utilize the improvement
security furnished herewith to construct and install the Improvements itself. If City
exercises this right, the release of any unused portion of such improvement security shall
be in accordance with the procedures outlined in Section 6 herein, including any retention
necessary for the one-year warranty and guarantee period (or the two-year maintenance
guarantee period for North Hills Parkway).
8. REDUCTION OR RELEASE OF IMPROVEMENT SECURITY
A. All public Improvements (Improvements that are to be owned or
dedicated to the City or other public entity as distinguished from those owned by individual
property owners or a private community association) shall be first completed, deemed
completed by the City Engineer and then accepted as complete by the City Council prior
to release of sureties. All private Improvements (Improvements that are to be owned by
individual property owners or a private community association and not dedicated or
owned by the City or other public entity) shall be first completed and then accepted as
complete in writing by the City Engineer.
B. Partial releases or reductions in the Subdivider’s improvement
(performance) security may be authorized prior to the City’s acceptance of all
Improvements required hereunder, as follows:
1. At the time that the Subdivider believes that the obligation to
perform the work for which security was required is complete, the Subdivider may notify
the City in writing of the completed work, including a list of work completed. Upon receipt
of the written notice, the City shall review and comment or approve the completion of the
required work within 45 days. If the City does not agree that all work has been completed
in accordance with the plans and specifications for the improvements, it shall supply a list
of all remaining work to be completed within this 45-day period.
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2. Within 45 days of receipt of the list of remaining work from the
local agency, the Subdivider may then provide cost estimates for all remaining work for
review and approval by the City. Upon receipt of the cost estimates, the City shall then
have 45 days to review, comment, and approve, modify, or disapprove those cost
estimates. The City shall not be required to engage in this process of partial release more
than once between the start of work and completion and acceptance of all work; however,
nothing in this section prohibits the City from allowing for a partial release as it otherwise
deems appropriate.
3. If the City approves the cost estimate, the City shall release all
performance security except for security in an amount up to two hundred percent (200%)
of the cost estimate of the remaining work. The process allowing for a partial release of
performance security shall occur when the cost estimate of the remaining work does not
exceed 20 percent of the total original performance security unless the City allows for a
release at an earlier time. Substitute bonds or other security may be used as a
replacement for the performance security, subject to the approval of the City. If substitute
bonds or other security is used as a replacement for the performance security released,
the release shall not be effective unless and until the City receives and approves that
form of replacement security. A reduction in the performance security, authorized under
this section, is not, and shall not be deemed to be, an acceptance by the City of the
completed improvements, and the risk of loss or damage to the improvements and the
obligation to maintain the improvements shall remain the sole responsibility of the
Subdivider until all required public improvements have been accepted by the City in
writing and all other required improvements have been fully completed in accordance with
the plans and specifications for the improvements.
4. The Subdivider shall complete the works of improvement until all
remaining items are accepted by the City.
5. Upon the completion of the Improvements, the Subdivider, or his
or her assigns, shall be notified in writing by the City within 45 days.
6. Within 60 days of the issuance of the notification by the City
Engineer, any remaining performance security, except ten percent (10%) of the original
amount of the security to guarantee and warrant the Improvements for the one-year (or
two-year for North Hills Parkway) guarantee and warranty period, shall be released within
60 days of the issuance of the written statement of completion.
C. Security securing the payment to the contractor, his or her
subcontractors and to persons furnishing labor, materials or equipment shall, after
passage of the time within which claims of lien are required to be recorded pursuant to
Title 3 (commencing with Section 9000) of Part 6 of Division 4 of the Civil Code and after
acceptance of the work, be reduced to an amount equal to the total claimed by all stop
notice claimants for whom stop notices have been filed with the City, and if no claims
have been filed, the security shall be released in full.
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Subdivision Improvement Agreement 14
D. The partial release provisions of this Section 6 shall not apply to any
required guarantee and warranty period required by Section 66499.9 for the guarantee
or warranty nor to the amount of the security deemed necessary by the local agency for
the guarantee and warranty period nor to costs and reasonable expenses and fees,
including reasonable attorneys' fees. Security furnished to guarantee and warrant the
Improvements against any defective work or labor done or defective materials furnished,
shall be released within thirty (30) days after the completion of the one-year period
following completion and acceptance of all Improvements (or two years for North Hills
Parkway.)
E. If Subdivider’s obligations relating to any Improvements are subject to
the approval of another governmental agency, the City shall not release the improvement
(performance) security therefor until the obligations are performed to the satisfaction of
such other governmental agency. Such agency shall have sixty (60) days after receipt of
written notice from the Subdivider of the Subdivider’s performance of the obligation to
register its satisfaction or dissatisfaction. If at the end of that period it has not registered
its satisfaction or dissatisfaction, it shall be conclusively deemed that the Subdivider’s
performance of the obligation was done to its satisfaction, and such improvement security
shall be promptly released.
F. In the event the time periods for action by the City specified in this
Section conflict with a shorter or longer time period for such actions as provided in
Government Code Section 66499.7, the time periods in Government Code Section
66499.7 shall control.
9. INDEMNIFICATION OF CITY BY SUBDIVIDER
A. Neither the City, nor its officers, agents and employees, shall be liable
or responsible for any accident, injury, loss or damage to either property or person
attributable to or arising out of the defective design, construction, functionality, installation,
assembly or improper maintenance, including, without limitation, the use of defective
methods, materials and workmanship (collectively, "Subdivider's Faults"), of the
Improvements by Subdivider, its officers, employees and agents. Subdivider shall
indemnify, hold harmless and defend the City, its officers, agents and employees, from
and against any and all losses, claims, costs, expenses, liabilities, damages, actions,
causes of action and judgments, including attorneys’ fees, arising directly or indirectly out
of or attributable to Subdivider’s Faults. The indemnity shall be effective retroactively to
the earliest recordation date of Tract 5906.
B. Subdivider’s obligations under this Section 9 are not conditioned or
dependent upon whether the City, or its officers, agents and employees, prepared,
supplied or reviewed any Improvement Plans or related specifications in connection with
the Subdivision or the Improvements, or has insurance or other indemnification covering
any of these matters.
C. Subdivider’s obligation to indemnify, hold harmless and defend the City
shall extend to injuries to persons and damages to or alleged taking of property resulting
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Subdivision Improvement Agreement 15
from the Subdivider's Faults, and the Improvements required herein, and shall likewise
extend to claims asserted by adjacent property owners based upon the diversion of
waters caused by the Subdivider’s defective design or defective construction of public
drainage systems, streets, and other public facilities or improvements. Except for a City
Directive as defined below, the City’s acceptance of the Improvements shall not constitute
an assumption by the City of any responsibility or liability for any damage or alleged taking
of property referenced herein. City shall not be responsible or liable for the design or
construction of the Subdivision or the Improvements constructed or installed pursuant to
the approved Improvement Plans or the Final Map, regardless of any act or omission by
the City in approving the Improvement Plans or the Final Map, unless the particular
Improvement design was required by the City over the written objection of the Subdivider,
which objection stated that the Improvement design was potentially dangerous or
defective and set forth an alternative design (a “City Directive”). After City’s acceptance
of the Improvements, the Subdivider shall remain obligated to correct or eliminate all
dangerous conditions created by defects in design, construction or Subdivider’s Faults
(other than those required by a City Directive); provided, however, that Subdivider shall
not be responsible for routine maintenance as specified in Section 1(F) of this Agreement.
Subdivider’s indemnity obligations hereunder shall remain in effect for ten (10) years
following acceptance of the respective Improvement(s) by the City Council. Subdivider
acknowledges and agrees that Subdivider shall be responsible and liable for the
Subdivider's Faults with respect to the Improvements and other work done pursuant to
this Agreement, unless same is due to a City Directive. City shall not be liable for any
acts or omissions in approving, reviewing, checking, correcting or modifying any
Improvement Plans or related specifications, or in inspecting, reviewing or approving any
work or construction of Improvements, unless same is due to a City Directive. The
Subdivider’s improvement security shall not be required to secure the Subdivider’s
obligations under this subparagraph C beyond the one-year (or two years for North Hills
Parkway) guarantee and warranty period, unless the City Engineer provides notice to
Subdivider prior to the expiration of the one-year period (or two years for North Hills
Parkway) of the existence of, or continued existence of, defects in the improvements, in
which case the portion of the improvement security to guarantee and warranty the
improvements against defective work shall not be released and shall remain in place until
the City Engineer provides written confirmation that the defects have been cured and
corrected. The indemnity shall be effective retroactively to the earliest recordation date
of Tract 5906.
D. Subdivider shall pay and satisfy any judgment, award or decree that may
be rendered against City, its officers, officials, employees, agents, representatives and
volunteers (collectively hereinafter “City and City Personnel”) to the extent of the
indemnity provided above, in any such suit, action, or other legal proceeding, provided
City gives Subdivider prompt written notice of such claim and allows Subdivider to
undertake the defense thereof.
E. Subdivider’s obligation to indemnify shall not be restricted to Insurance
proceeds, if any, received by the City and City Personnel.
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Subdivision Improvement Agreement 16
F. Subdivider, on behalf of itself and all parties claiming under or through
it, hereby waives all rights of subrogation and contribution against City and City Personnel
to the extent of the indemnity above provided.
10. INSURANCE
A. The following coverages will be provided by Subdivider and maintained
on behalf of City and in accordance with the requirements set forth herein. If Subdivider
performs construction activities through a general contractor, some or all of these
insurance requirements for the period of construction may be satisfied by the general
contractor’s insurance coverages. In such case, Subdivider shall maintain during this
same construction period, and after the construction period, the coverages shown below
as “Insurance After Construction.” In addition, Subdivider may elect to obtain, for all or
any portion of the Project, an “Owner-Controlled Wrap Up” insurance policy in satisfaction
of the insurance requirements for general contractors and subcontractors provided it
satisfies all of the insurance requirements below for general contractors and
subcontractors. Throughout these specifications, the word “Subdivider” refers to the
Party responsible to provide the coverages as specified and, depending on context, may
refer either to Subdivider or to a separate General Contractor.
B. Insurance During Construction
Subdivider shall provide the following insurance during construction of the Improvements.
Insurance requirements may be met through insurance provided by Subdivider’s General
Contractor:
1. Commercial General Liability Insurance
Commercial General Liability Insurance (primary) shall be provided on ISO-CGL Form
No. CG 00 01 or equivalent coverage, including provisions for defense of additional
insureds. Policy limits shall be no less than one million dollars ($1,000,000) per
occurrence for all coverages and two million dollars ($2,000,000) general aggregate. City
and its officers, employees and agents shall be added as additional insureds using ISO
Form CG 20 10 11 85 or other revision of the CG 20 10 form if available from the insurer
and reasonably acceptable to the City, not limiting coverage for the additional insured to
“ongoing operations” or in any way excluding coverage for completed operations.
Coverage shall apply on a primary non-contributing basis in relation to any other
insurance or self-insurance, primary or excess, available to City or any officer, employee
or agent of City. Coverage shall not be limited to the vicarious liability or supervisory role
of any additional insured. Coverage shall contain no contractors’ limitation or other
endorsement limiting the scope of coverage for liability arising from pollution, explosion,
collapse, or underground property damage.
2. Umbrella Liability Insurance
Umbrella Liability Insurance (or, at Subdivider’s election, Excess Liability Insurance) (over
primary) shall apply to bodily injury/property damage, personal injury/advertising injury,
at a minimum. Coverage shall be at least as broad as any underlying coverage. Coverage
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Subdivision Improvement Agreement 17
shall be provided on a “pay on behalf” basis. There shall be no cross liability exclusion
and no contractor’s limitation endorsement. Policy limits shall be not less than ten million
dollars ($10,000,000) per occurrence and in the aggregate, including any limits required
in the underlying policies. The policy shall have a starting date no later than and an
ending date no earlier than those of the underlying coverages. The Named Insured
(Subdivider or General Contractor as appropriate) may determine the layering of primary
and excess liability insurance provided that if such layering differs from that described
here, the actual coverage program meets the minimum total required limits and complies
with all other requirements listed here.
3. Business Auto Coverage
Business Auto Coverage shall be written on ISO Business Auto Coverage Form CA 00
01 or the equivalent, including symbol (1) (any Auto). If Subdivider (or Contractor) does
not own any vehicles, this requirement may be satisfied by a non-owned vehicle
endorsement to the general and umbrella liability policies. Limits shall be no less than
one million dollars ($1,000,000) per accident. This policy shall be scheduled as
underlying insurance to the umbrella policy required above for a total limit of no less than
twelve million dollars ($10,000,000) each accident.
4. Workers’ Compensation/Employer’s Liability
Workers’ Compensation/Employer’s Liability shall provide workers’ compensation
statutory benefits as required by law. Employer’s liability limits shall be no less than one
million dollars ($1,000,000) per accident or disease. Employer’s liability coverage shall
be scheduled under the umbrella or excess liability policy described above. This policy
shall be endorsed to waive any right of subrogation with respect to City, its officers,
employees or agents.
5. Builder’s Risk Insurance
Builder’s Risk Insurance covering all real and personal property for
“all risks” of loss or “comprehensive perils” coverage including but not limited to the perils
of earth movement, including earthquake (if required by Subdivider’s lender or if available
at commercially reasonable rates) and flood for all Improvements.
C. Insurance After Construction
Upon completion of construction of the Improvements, and for the required one-year
guarantee and warranty period for Improvements, the required two-year maintenance
guarantee period for North Hills Parkway, and the required 10-year indemnification
period, Subdivider at Subdivider’s expense shall maintain or cause to be maintained the
following insurance:
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Subdivision Improvement Agreement 18
1. Commercial General Liability Insurance
Commercial General Liability Insurance (primary) shall be provided on ISO-CGL form No.
CG 00 01 or equivalent coverage, including provisions for defense of additional insureds.
Policy limits shall be no less than one million dollars ($1,000,000) per occurrence for all
coverages and two million dollars ($2,000,000) general aggregate. City and its officers,
employees and agents shall be added as additional insureds using ISO form CG 20 10
or equivalent if available from the insurer and reasonably acceptable to the City.
Coverage shall apply on a primary non-contributing basis in relation to any other
insurance or self-insurance, primary or excess, available to City or any officer, employee
or agent of City until the warranty period specified in this Agreement expires.
2. Umbrella Liability Insurance
Umbrella Liability Insurance (or, at Subdivider’s election, Excess Liability Insurance) (over
primary) shall apply to bodily injury/property damage, personal injury/advertising injury,
at a minimum. Coverage shall be at least as broad as any underlying coverage. Coverage
shall be provided on a “pay on behalf” basis. There shall be no cross liability exclusion.
Policy limits shall be not less than ten million dollars ($10,000,000) per occurrence and in
the aggregate, including any limits required in the underlying policies. The policy shall
have a starting date no later than and an ending date no earlier than those of the
underlying coverages. Subdivider may determine the layering of primary and excess
liability insurance provided that if such layering differs from that described here, the actual
coverage program meets the minimum total required limits.
3. Workers Compensation Insurance
Workers’ Compensation/Employer’s Liability shall provide workers’ compensation
statutory benefits as required by law. Employer’s liability limits shall be no less than one
million dollars per accident or disease. Employer’s liability coverage shall be scheduled
under any umbrella or excess liability policy described above. Unless otherwise agreed,
this policy shall be endorsed to waive any right of subrogation as respects City, its
employees or agents.
4. Business Auto Coverage
Business Auto Coverage for vehicles owned, operated or maintained in any way
connected with the project, shall be written on ISO Business Auto Coverage form CA 00
01 or the equivalent, including symbol (1) (any Auto). If Subdivider (or Contractor) does
not own any vehicles, this requirement may be satisfied by a non-owned vehicle
endorsement to the general and umbrella liability policies. Limits shall be no less than
one million dollars ($1,000,000) per accident. This policy shall be scheduled as
underlying insurance to the umbrella or excess liability policy required above for a total
limit of no less than ten million dollars ($10,000,000) each accident.
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Subdivision Improvement Agreement 19
D. Provisions Pertaining to Insurance Provided by Subdivider
1. All insurance coverage and limits provided pursuant to this
Agreement shall apply to the full extent of the policies involved, available or applicable.
Nothing contained in this Agreement or any other agreement relating to City or its
operations limits the application of such insurance coverage.
2. Requirements of specific coverage features or limits contained in
this Section are not intended as a limitation on coverage, limits or other requirements, or
a waiver of any coverage normally provided by any insurance. Specific reference to a
given coverage feature is for purposes of clarification only and is not intended by any
Party to be all inclusive, or to the exclusion of other coverage, or a waiver of any type.
3. All general or auto liability insurance coverage provided pursuant
to this Agreement, or any other agreements pertaining to the performance of this
Agreement, shall not prohibit Subdivider, and Subdivider’s employees, or agents, from
waiving the right of subrogation prior to a loss. Subdivider waives its right of subrogation
against City.
4. None of the policies required herein shall be in compliance with
these requirements if they include any limiting endorsement that has not been first
submitted to City and approved in writing by the City.
5. Unless otherwise approved by City, Subdivider’s insurance and
insurance provided by any contractor or subcontractor relating to the construction of the
Improvements shall be written by insurers authorized to do business in the State of
California and with a minimum “Best’s” Insurance Guide rating of at least “A-:VII.” Self-
insurance will not comply with these insurance specifications unless expressly approved
in writing by the City.
6. In the event any policy of insurance required under this
Agreement does not comply with these requirements and Subdivider does not cure the
non-compliance within thirty (30) days after written notice from City (or Subdivider does
not provide reasonable evidence of such cure within such period), or if the insurance is
canceled and not replaced, City has the right but not the duty to obtain the insurance it
deems necessary and any premium paid by City will be promptly reimbursed by
Subdivider.
7. Subdivider agrees to provide evidence of the insurance required
herein, satisfactory to City, consisting of certificate(s) of insurance evidencing all of the
coverages required and an additional insured endorsement to Subdivider’s general
liability and umbrella liability policies using ISO Form CG 20 10 11 85. Certificate(s) are
to reflect that the insurer will provide 30 days’ notice of any cancellation of coverage and
policies are to have a “cancellation endorsement” to the same effect. Subdivider agrees
to provide copies of any endorsements modifying coverage in any way upon request from
City.
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Subdivision Improvement Agreement 20
8. Subdivider shall provide proof that policies of insurance required
herein expiring during the term of this Agreement have been renewed or replaced with
other policies providing at least the same coverage.
9. Any actual or alleged failure on the part of City or any other
additional insured under these requirements to obtain proof of insurance required under
this Agreement in no way waives any right or remedy of City or any additional insured, in
this or any other regard.
10. Subdivider agrees to require all subcontractors or other parties
(but not including a general contractor) hired for this project to construct the
Improvements to purchase and maintain insurance for general liability (minimum limit
$1,000,000 per occurrence), automobile liability ($1,000,000 per accident) and workers’
compensation (statutory benefits). Prior to the issuance of the Certificate of Completion
for each Phase, Subdivider shall, upon request by City, provide the City with copies of all
insurance policies, certificates and endorsements related to such Phase.
11. Subdivider agrees to monitor and review all coverage required
by this Section and assumes all responsibility for ensuring that such coverage is provided
as required here. Subdivider agrees to obtain certificates evidencing such coverage.
Subdivider agrees that upon request, all agreements with subcontractors or others with
whom Subdivider contracts with on behalf of City, and all certificates of insurance
obtained in compliance with this paragraph will be submitted to City for review upon
request by City. Failure of City to request copies of such documents will not impose any
liability on City, or its employees.
12. Subdivider agrees to require that no contract used by any
general contractor or subcontractor in connection with construction of the Improvements,
or contracts Subdivider enters into on behalf of City, will reserve the right to charge back
to City the cost of insurance required by this Agreement.
13. Where appropriate (such as in the case of automobile insurance
coverages), coverage will not be limited to the specific location designated as the
Property.
14. Subdivider agrees to provide notice to City of any claim or loss
against Subdivider that includes City as a defendant promptly after Subdivider receives
written notice or obtains knowledge thereof. City assumes no obligation or liability by
such notice, but has the right (but not the duty) to monitor the handling of any such claim
or claims if they are likely to involve City. City agrees to provide similar notice to
Subdivider of any such claims it is notified of respecting the Property.
15. Subdivider agrees not to attempt to avoid its defense and
indemnity obligations to City, and its officers, employees, agents by using as a defense
Subdivider’s statutory immunity under workers’ compensation and similar statutes.
16. Subdivider agrees to ensure that coverage provided to meet
these requirements is applicable separately to each insured and that there will be no cross
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Subdivision Improvement Agreement 21
liability exclusions that preclude coverage for suits between Subdivider and City or
between City and any other insured or Named Insured under the policy, or between City
and any Party associated with City or its employees.
17. If Subdivider or any contractor or subcontractor is a Limited
Liability Company, general liability coverage must apply so that the Limited Liability
Company and its Managers, Members, Affiliates, and their employees are insureds.
18. Subdivider shall require General Contractor to maintain
commercial general liability, and if necessary, commercial umbrella liability insurance with
a limit of not less than $10,000,000 for each occurrence, until the warranty period
specified in this Agreement expires.
19. To the extent a particular coverage or policy form or specification
is not reasonably available from Subdivider's insurer or would result in an additional
premium that is extraordinary or unreasonably disproportionate to the premium for the
policy as a whole, then Subdivider shall provide substantially similar coverage reasonably
acceptable to City for which the cost is not extraordinary or unreasonably
disproportionate.
11. OWNERSHIP OF THE IMPROVEMENTS
A. Ownership of all or any category of the Improvements constructed and
installed by the Subdivider pursuant to this Agreement and shown on the Map to be
dedicated to the public shall vest, as applicable, in the City (or other specified
governmental agency) upon acceptance of said Improvements by the City Council (or
other specified governmental agency). The acceptance of the Improvements shall either
be shown by a certificate on the Final Map or by subsequent resolution accepting the
Improvements adopted by the City Council pursuant to Government Code Section
66477.2 and recorded with the County Recorder.
B. The Subdivider shall at all times prior to the acceptance of the
Improvements by the City, give good and adequate warning to the public of each and
every dangerous and defective condition caused by the construction of the Improvements
and shall take all steps necessary to protect the public from such dangerous or defective
conditions. The Subdivider agrees and understands that until acceptance of the
Improvements by the City in writing, each Improvement and Improvement area that is
offered for dedication shall be under the charge of the Subdivider, and the Subdivider
may close all or a portion of any street or area whenever necessary to protect the public
during the construction of the Improvements.
12. DEFAULT AND BREACH BY THE SUBDIVIDER AND REMEDIES OF THE
CITY
A. Upon the occurrence of any of the following events, the Subdivider shall
be deemed to be in default under this Agreement:
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1. Subject to any time extensions granted in accordance with
Section 4, failure to complete construction and installation of the Improvements or any of
them by the completion date set forth above in the Subdivision Reference Data;
2. Failure to promptly correct or cure any defect in the Improvements
or any of them during the one-year (or two years for North Hills Parkway) guarantee and
warranty period as required by Section 3.A or failure to commence correction or cure of
any such defect or failure to diligently prosecute same to completion, in each instance
following receipt by Subdivider of written notice that such defect exists;
3. Subject to any time extensions granted in accordance with
Section 4, failure to perform substantial construction work of the Improvements or any of
them, after commencement of work on same, for a period of thirty (30) days after
Subdivider’s receipt of written notice thereof from the City;
4. Insolvency, appointment of a receiver, or the filing of any petition
in bankruptcy, whether voluntary or involuntary, and such is not cured or discharged
within a period of thirty (30) days;
5. Commencement of a foreclosure action against the Subdivision
or any portion thereof, or any conveyance by the Subdivider in lieu or in avoidance of
foreclosure, within thirty (30) days after receipt by Subdivider of written notice thereof from
the City; or
6. Failure to perform any other obligations in accordance with the
terms and provisions of this Agreement within thirty (30) days after receipt by Subdivider
of written notice thereof from the City.
B. City reserves to itself all remedies available to it at law or in equity for
any breach of Subdivider’s obligations under this Agreement. City shall have the right,
without limitation of other rights or remedies, after written notice to Subdivider and a
reasonable opportunity for Subdivider to cure any such alleged default, to draw upon or
utilize any improvement security furnished hereunder to complete the Improvements or
otherwise mitigate City’s damages in the event of Subdivider’s default.
C. Following Subdivider’s receipt of written notice of alleged default and
failure by Subdivider to promptly commence the cure of any alleged default and to
diligently prosecute such cure to completion, the City may serve written notice of any such
default upon the surety on any corporate surety bond furnished as improvement security
hereunder, and request that said surety take over and complete the Improvements herein
specified. If such surety, within thirty (30) days after service of such notice of default,
does not give the City written notice of its intention to perform this Agreement, or does
not commence such performance within thirty (30) days after notice to the City of such
intention to perform, the City may take over the work and prosecute the same to
completion, by contract or by any other method the City deems advisable, for the account
and at the expense of the Subdivider and its surety.
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Subdivision Improvement Agreement 23
D. Subdivider acknowledges that the Estimated Total Costs and
Improvement Security amounts set forth herein may not reflect the actual cost of
construction or installation of the Improvements, and, consequently, City’s damages for
Subdivider’s default shall be measured by the actual cost of completing the required
Improvements. If the damages incurred by the City in taking over and completing the
Improvements exceed the principal amount of the improvement security, then the
Subdivider shall reimburse the City in the amount of such excess damages.
E. Following Subdivider’s receipt of written notice of alleged default and
failure by Subdivider to promptly commence the cure of any alleged default and to
diligently prosecute such cure to completion, City may, without liability for so doing, take
possession of, and utilize in completing the Improvements, such materials, appliances,
plant and other property belonging to Subdivider as may be on the site of the work and
necessary for the performance of the work. Subdivider hereby consents to such entry by
the City and its representatives, including contractors, upon any real property in the
Subdivision owned by Subdivider or by any assignee of this Agreement, in the event the
City elects to maintain or complete the work on the Improvements following Subdivider’s
default.
F. Subdivider acknowledges and agrees that approval of the Final Map for
the Subdivision conferred substantial rights upon the Subdivider, including the right to
sell, lease or finance lots within the Subdivision, and that such approval constitutes the
final act necessary to permit the division of land within the Subdivision. As a result, City
will be damaged to the extent of the cost of construction or installation of the
Improvements upon Subdivider’s failure to perform its obligations under this Agreement,
which failure is not promptly remedied by sureties or by Subdivider.
G. The City’s failure to take an enforcement action with respect to a default,
or to declare a default or breach, shall not be construed as a waiver of that default or
breach or any subsequent default or breach of the Subdivider.
H. If City sues to compel Subdivider’s performance of this Agreement, or
to recover damages or costs incurred in completing or maintaining the work on the
Improvements, Subdivider agrees to pay all attorneys’ fees and other costs and expenses
of litigation incurred by the City in connection therewith, even if Subdivider subsequently
resumes and completes the work.
13. RELATIONSHIP OF THE PARTIES
Neither Subdivider, nor any of Subdivider’s contractors, employees or agents, are or shall
be deemed to be, agents of the City in connection with the performance of Subdivider’s
obligations under this Agreement.
14. ASSIGNMENT
A. Subdivider shall not assign this Agreement, or any portion thereof
without the prior written consent of the City. Any attempted or purported assignment in
violation of this subparagraph A shall be null and void and shall have no force or effect.
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Subdivision Improvement Agreement 24
B. The sale or other disposition of the Subdivision shall not relieve
Subdivider of its obligations hereunder. If Subdivider intends to sell the Subdivision, or
any portion thereof (except for the sale of individual lots to individual purchasers) to any
other person or entity, the Subdivider may request a novation of this Agreement and a
substitution of improvement security. Upon the City’s approval of the novation and
substitution of improvement security, the Subdivider may request a release or reduction
of the improvement security furnished pursuant to this Agreement.
15. NOTICES
All notices required or provided for in this Agreement shall be in writing and
delivered in person or by mail, postage prepaid, and addressed as follows:
If to the City: City Manager
City of Moorpark
799 Moorpark Avenue
Moorpark, California 93021
If to the Subdivider: To the address set forth above in the Subdivision
Reference Data, or to such other address as may
subsequently be designated in written notice to the
City.
Notice shall be effective on the date that it is delivered in person, or, if mailed, three (3)
days after the date of deposit in the United States Mail.
16. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement of the parties with respect to its
subject matter. All modifications, amendments, or waivers of any terms of this Agreement
shall be in writing and signed by the duly authorized representatives of the parties. In the
case of the City, the duly authorized representative, unless otherwise specified herein,
shall be the City Engineer.
17. APPLICABILITY
Notwithstanding anything in this Agreement to the contrary, the terms and
provisions of this Agreement only apply to:
A. Grading completed or to be completed by Burns Pacific Construction, as
depicted on Exhibits A-1 and A-2 attached hereto; and
B. Storm drain improvements installed or to be installed by Burns Pacific
Construction, as depicted on Exhibits B-1 and B-2 attached hereto; and
C. Sewer and water improvements installed or to be installed by Burns
Pacific Construction, as depicted on Exhibits C-1 and C-2 attached hereto; and
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Subdivision Improvement Agreement 25
D. Street improvements installed or to be installed by Burns Pacific
Construction, as depicted on Exhibits D-1 and D-2; and
E. North Hills Parkway and Gabbert Road Street improvements installed by
Burns Pacific Construction, as depicted on Exhibits E-1 and E-2; and
F. Landscaping installed by Burns Pacific Construction, as depicted on
Exhibit F attached hereto; and
G. Storm Water Quality Improvements installed or to be installed by Burns
Pacific Construction, and the operations and maintenance for storm water quality devices
installed or to be installed, as depicted on Exhibits G-1 and G-2.
H. In consideration of the terms described herein,
Subdivider and its successors in interest (collectively the “Subdivider Parties”), hereby
waive, release and absolutely discharge the City, and its present and former council
members, officials, agents, employees, attorneys, insurers, members, managers,
parents, affiliates, and subsidiaries (collectively the “City Releases”) from any and all
claims, demands, damages, reasonable attorneys’ fees, costs, expenses, and causes of
action of whatever kind, known, or unknown, at law or in equity, that the Subdivider Parties
ever had, now have or may hereafter claim to have against any of the City Releases
relating to, arising out of, or in any manner based upon: (i) the amount of fees or charges
required to be paid by Subdivider to City under this Agreement; (ii) the City’s requirements
in this Agreement; and (iii) any other actual or potential claims that the Subdivider Parties
have asserted or could assert against the City Releases that relate to or arise out of the
Subdivision.
I. Subdivider and the City hereby waive all rights under California Civil
Code § 1542, which provides as follows:
A general release does not extend to claims which the creditor
does not know or suspect to exist in his or her favor at the time
of executing the release, which if known by him or her must
have materially affected his or her settlement with the debtor.
_____________________ _____________________
Subdivider Initials City Initials
18. SEVERABILITY
The provisions of this Agreement are severable. If any portion of this Agreement
is held invalid by a court of competent jurisdiction, the remainder of the Agreement shall
remain in full force and effect.
19. INCORPORATION OF SUBDIVISION REFERENCE DATA AND RECITALS
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Subdivision Improvement Agreement 26
The Subdivision Reference Data and the Recitals are incorporated into this
Agreement.
20. GOVERNING LAW
This Agreement shall be governed by the laws of the State of California.
21. EFFECTIVE DATE OF THE AGREEMENT
This Agreement shall be executed by a duly authorized officer or employee of the
City, it being the intention of the parties that the Subdivider shall first execute this
Agreement and thereafter submit it to the City. The City shall insert the effective date in
the Subdivision Reference Data in all counterparts of this Agreement and shall transmit
a fully executed counterpart to the Subdivider. This Agreement shall become effective
retroactively to the earliest recordation date of Tract 5906.
SIGNATURES BEGIN ON NEXT PAGE
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Subdivision Improvement Agreement 27
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective officers, thereunto duly authorized, as of the dates set
forth below their respective signatures.
[Note: All signatures must be
acknowledged by a notary public and the
acknowledgement must be attached. If
signed by a Corporation, the signatures of
two Corporate officers are required, unless
a resolution of the Corporation’s Board of
Directors is provided indicating that the
signature of the one signatory is sufficient
to bind the Corporation.]
“SUBDIVIDER”
Hecate Grid Gwent Land, LLC
(Type or print exact name of person or
business entity)
By:
(Signature of authorized officer)
(Type or print name of authorized officer)
(Title of authorized officer)
Date:
“CITY”
ATTEST:
CITY CLERK
CITY OF MOORPARK
CITY MANAGER
(SEAL)
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RESOLUTION NO. 2021-4005
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF MOORPARK, CALIFORNIA, APPROVING TRACT
MAP NO. 5906, A-B PROPERTIES
WHEREAS, the City Council adopted Resolution No. 2013- 3182, approving
Tentative Tract Map No. 5906; and
WHEREAS, Tract Map No. 5906 will allow a resubdivision of Tract No. 5147 for 17
industrial lots on 34.7 acres, located 1,300 feet west of Gabbert Road, north of Southern
Pacific Railroad right-of-way; and
WHEREAS, the City Engineer/Public Works Director and Community Development
Director have reviewed the Conditions of Approval of Resolution No. 2013- 3182 to ensure
compliance prior to the approval of the Final Tract Map and recordation; and
WHEREAS, the survey monuments for this subdivision have not been set by the
subdivider's surveyor; therefore, Monumentation Bonds are required to guarantee the
installation of monuments.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK
DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. The City Council of the City of Moorpark hereby approves Tract Map
No. 5906 and directs that the Mayor sign and the City Clerk cause to be recorded.
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 5th day of May, 2021.
ATTEST:
Ky Spangler, City Clerk
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Resolution No. 2021-4005
Page2
STATE OF CALIFORNIA
COUNTY OF VENTURA
CITY OF MOORPARK
ss.
I, Ky Spangler, City Clerk of the City of Moorpark, California, do hereby certify under
penalty of perjury that the foregoing Resolution No. 2021-4005 was adopted by the City Council
of the City of Moorpark at a regular meeting held on the 5th day of May, 2021, and that the same
was adopted by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
Councilmembers Enegren, Groff, Pollock, and Mayor Parvin
None
Councilmember Castro
None
WITNESS my hand and the official seal of said City this 5th day of May, 2021.
Ky Spangler, City Clerk
seal)
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ATTACHMENT 3
RESOLUTION NO. 2023-___
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF MOORPARK, CALIFORNIA, EXONERATING SURETY
BONDS 4418694, 4418695, 4418697, 4418698, 4444897,
4444898, and 4444899 FOR TRACT 5906 (BURNS PACIFIC
CONSTRUCTION, INC.)
WHEREAS, the City Council adopted Ordinance No. 416, terminating Development
Agreement No. 1998-04 adopted by Ordinance No. 250 and adopting Development
Agreement 2012-01 by and between the City of Moorpark and A-B Properties for
approximately 34.53 acres, north of Union Pacific Railroad right-of-way, west of Gabbert
Road; and
WHEREAS, the City Council adopted Resolution No. 2013-3182, approving
Tentative Tract Map No. 5906, a resubdivision of Tract No. 5147 for 17 industrial lots on
34.70 acres, located 1,300 feet west of Gabbert Road, north of Union Pacific Railroad right-
of-way, on the application of A-B Properties; and
WHEREAS, the developer/subdivider (A-B Properties and Burns Pacific
Construction, Inc.) entered into a Memorandum of Option Agreement for Purchase of Real
Estate, recorded on July 20, 2020, as Instrument No. 20200728-00111370 of the Official
Records, with Hecate Grid Gwent Storage 1, LLC; and
WHEREAS, the City Council adopted Resolution No. 2021-4005, approving Final
Tract Map No. 5906; and
WHEREAS, the City entered into a Subdivision Improvement Agreement with Burns
Pacific Construction, Inc. for the construction of public and private improvements related to
Tract 5906; and
WHEREAS, the City Council has authorized the City Manager to execute a new
Subdivision Improvement Agreement with the buyer of Tract 5906, Hecate Grid Land LLC,
for the construction of public and private improvements related to Tract 5906; and
WHEREAS, upon execution of a new Subdivision Improvement Agreement with
Hecate Grid Land LLC, the City Council has authorized the City Manager to terminate the
current Subdivision Improvement Agreement with Burns Pacific Construction, Inc.; and
WHEREAS, City staff recommends that upon execution of a new Subdivision
Improvement Agreement with Hecate Grid Land LLC and the termination of the current
Subdivision Improvement Agreement with Burns Pacific Construction, Inc., the City Council
exonerate Surety Bond Numbers 4418694, 4418695, 4418697, 4418698, 4444897,
4444898, and 4444899.
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Resolution No. 2023-____
Page 2
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK
DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. The City Council of the City of Moorpark, upon execution of a new
Subdivision Improvement Agreement with Hecate Grid Land LLC and the termination of the
current Subdivision Improvement Agreement with Burns Pacific Construction, Inc, hereby
exonerates Surety Bond Numbers 4418694, 4418695, 4418697, 4418698, 4444897,
4444898, and 4444899.
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 15th day of February 2023.
Chris R. Enegren, Mayor
ATTEST:
Ky Spangler, City Clerk
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