HomeMy WebLinkAboutAGENDA REPORT 1998 0902 CC REG ITEM 10H114 - r//0 (A)
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CITY OF MOORPARK, CALIFORNIA
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CITY COUNCIL AGENDA REPO 6. 00 cr
BY:
Jr) sfiruct-ton S t ridopi"
TO: The Honorable City Council zeso . uo . 9 g -1 So $
FROM: John E. Nowak, Assistant City Manager cuca_Ow"�,
DATE: 24 August 1998 (Council meeting of 09 -02- 98)
SUBJECT: Consider Agreement and Escrow Instructions Pertaining to
Early Payment of Fees; and Consider Resolution No. 98-
Adopting an Interpretation of the Intent of Certain Provisions
of the Development Agreement; and Consider an Accord
Agreement Related to the Moorpark Country Club Estates
Project.
Discussion: In 1996 the City Council entered into a Development Agreement with
Bollinger Development Corporation for the development of 216 estate style homes and two
public golf courses. Both a RPD and a CUP were approved for the project and a Vesting
Tentative Tract Map was considered and conditionally approved by the City Council. No
final map has yet been approved. A provision was also included in the Agreement that
the developer would pay the City a total of $5 million over a fifteen -year period beginning
in 2001 in conjunction with the development of the two golf courses.
Bollinger Development has now signed an agreement with Toll Brothers, Inc. to serve as
the developers of the residential units. To expedite the project, the developers have
offered to pay the City of Moorpark the present net value of the $5 million owed over 15
years, or a total of $3 million, if the City Council makes findings that with payment of the
$3 million those particular requirements in the Agreement are satisfied. They are also
requesting clarification that the approved CUP and the RPD were tolled and the
inauguration date of those entitlements begin with the effective date of the Agreement.
The Agreement and Escrow Instructions presented for Council's consideration provides
that the $3 million be invested in a treasury fund by the escrow company to earn maximum
interest. If any legal challenge is brought against the actions the Council is requested to
consider at this meeting, and it has not been resolved by December 15, the developer has
the option of assisting the City with legal defense of the actions or withdrawing the funds
and terminating the development project. The developer must make its decision no later
than December 31, 1998. If no legal challenge is made or if it is favorably resolved, the
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Moorpark Country Club Estates
Meeting of September 2, 1998
Page 02
e
City begins earning the interest on the money in the Treasury Fund on January 1, 1998.
If no litigation is taking place, the City would receive the $3 million with accrued interest
when the early grading permit is filed or May 15, 1999, whichever comes first. As an
added incentive to expedite the project, beginning April 1, 1999 the developer must
guarantee that the City earns at least 6% interest on the funds in escrow. The developer
may have the funds repaid from escrow only if no resolution is passed, the resolution is
invalidated or final legal action has not occurred prior to December 15, 1998. If the
developer decides to assist in defense of a legal challenge and the resolution is
subsequently invalidated, the developer will receive the funds in the escrow account.
The resolution presented for consideration indicates that the Council's intent at the time
of approval of the Development Agreement and was for the use inauguration period for the
Residential Planned Development Permit (RPD 94 -1) and for the Conditional Use Permit
(CUP 94 -1) to begin when the Agreement became effective (when the developer has
possession of the entire property covered by the Development Agreement) and run for
three years from that date, not to exceed the term of Vesting Tentative Tract Map No. 4928
or any extension thereto. The effective date of the Agreement is currently scheduled to be
no later than December 31, 1998. The resolution also stipulates that the golf course
commencement date in the Agreement of May 1, 1998 is waived provided both golf
courses would be operational no later than May 1, 2003. IT also makes clear that no
provisions related to the early grading permit or erosion control are waived by this action.
The Accord Agreement presented for Council's consideration would stipulate that with the
payment of $3 million in a lump sum at this time, the requirement to pay $5 million over 15
years would be satisfied. The satisfaction statement would be signed when the City
actually receives the money. The $3 million has already been deposited in an escrow
holding account.
Recommendation:
(1) Approve the Agreement and Escrow Instructions related to the early payment
of fees, subject to final language approval by the City Attorney and City Manager, and
authorize the Mayor to execute said documents; and
(2) Adopt Resolution No. 98- pertaining to an interpretation of the intent related
to the Development Agreement with Bollinger Development Corporation; and
b `
Moorpark Country Club Estates
Meeting of September 2, 1998
Page 03
(3) Approve the Accord Agreement, subject to final language approval by the City
Attorney and City Manager, pertaining to the early payment of certain golf course related
fees.
Attachments: Agreement and Escrow Instructions
Resolution No. 98-
Accord Agreement
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THIS AGREEMENT AND ESCROW INSTRUCTIONS ( "Agreement ") is made and
entered into this day of , 1998, by and between BOLLINGER
DEVELOPMENT. INCORPORATED, a California corporation ( "Developer "), TOLL BROS.,
INC., a Pennsylvania corporation ( "Buyer ") and the CITY OF MOORPARK, a municipal
corporation organized and existing under the laws of the State of California ("City"). Developer,
Buyer and the City may be referred to herein individually as a "Party" and collectively as the
"Parties. "
A. Developer is the owner of certain real property, and currently is in escrow to
purchase certain other real property, both located in the City of Moorpark and collectively
comprising Vesting Tentative Tract No. 4928 ( "Property"), as more specifically described in
Exhibit "A" attached hereto.
B. Developer and the City are parties to a certain Development Agreement dated April
18, 1996 ( "Development Agreement "), pertaining to the Property.
C. The Development Agreement provides, hitgr alia, fur Devcloper to pay the City a
sum of money in partial consideration for the benefits received by Developer under that
Agreement. Rather than making a series of payments over time, Developer now has agreed to
make a single payment to the City, pursuant to an Accord Agreement of even date herewith
between Developer and the City. and a proposed Satisfaction, in the amount of Three Million and
00 /100 Dollars ($3,000,000.00) ( "Payment "), in accordance with the terms and conditions set
forth below.
D. The Satisfaction will be signed concurrently with the City's receipt of the Payment.
E. Developer and Buyer are parties to a certain Agreement of Sale providing for sale
of the Property by Developer to Buyer. That Agreement of Sale also provides, inter Alia, for
Buyer to advance the funds constituting the Payment on behalf of Developer. For the purposes
of this Agreement only, Buyer will act in the place of Developer to satisfy the particular provision
of the Development Agreement which is the subject hereof.
F. Developer contends that the Development Agreement requires clarification in
certain respects, and the City has agreed to consider adoption of a resolution interpreting the
intended tucauiug of ccrwin kruvisioiis of the Development Agm=ncnt ( "Resolution ").
NOW, THEREFORE, in consideration for the mutual benefits and obligations described
herein, the Parties agree as follows:
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a. The Parties acknowledge that the Payment has been deposited, in the form
of immediately available funds, with First American ThIc Cumpany ( "Escrow"), located at 2520
Financial Square, Oxnard, CA 93020 -1265 (Telephone 8051988- 8014). Immediately upon
delivery of a fully executed original of this Agreement to Escrow, Escrow shall place the Payment
in an escrow account. The contents of that escrow account shall be invested by Escrow solely in
the 'Rank of America U.S. Treasury Fund.
b. Following deposit with Escrow, the Payment may be withdrawn only in
accordance with the provisions of this Agreement. In any instance in which Buyer is entitled to
instruct Escrow to refund the Payment, such refund shall be delivered to Buyer and shall be
payable solely to Buyer.
C. The Payment shall be refunded to Buyer by Escrow, upon a unilateral
instruction by Buyer, in the event of any of the following:
(i) The City Council fails to adopt the Resolution, in the form attached
hereto as Exhibit "B" or in any revised form approved by Buyer, at its regular meeting held on
September 2, 1998, or thereafter fails to execute the Resolution and deliver it to Escrow no later
than September 9, 1998; or
(ii) The City Council, following approval of this Agreement, adopts and
executes the Resolution in accordance with Paragraph 1.c(i) above, but (a) on or before December
18, 1998, the City delivers written notice to Escrow that (1) the City has been served with a legal,
administrative or other action filed on or before December 15, 1998 challengingR such adoption and
(2) as to whether it intends to defend against the action, and (b) if the City does not intend to
defend against the action, then, on or before December 31, 1998, Buyer delivers written notice
to Escrow that it does not intend to defend against the action.
In the event that a legal, admiuistrdtivc ur other actiou by ahry person
or entity challenging the adoption of the Resolution is filed and served on the City on or before
December 15, 1998, then, within three (3) working days after service thereof, the City shill
deliver a copy of the action and the related summons to Buyer, and, on or before December 18,
1998, the City shall deliver written notice of the action to Escrow (with copy to Buyer). The
notice to Escrow shall state that the action was filed and served on or before December 15, 1998
and that the action challenges adoption of the Resolution that is on deposit with Escrow.
The City shall not be required to defend against any such action, or
to continue a defbnse once initiated. However, on or before December 18, 1998, the City shall
deliver written notice to Buyer and Escrow as to whether it intends to defend against the action.
If the City declines to defend against the action, or subsequently terminates such defense, Buyer
may act on behalf of the City, at Buyer's expense. Buyer shall not be required to assume such
defense, or to continue it once initiated.
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Upon occurrence of either of the conditions described in this
Subsection l.c, Buyer may, by December 31, 1998, unilaterally demand refund of the Payment
by Escrow, and the City shall not gave Escrow any contrary instruction or take any other action
to delay or prevent such refund. such demand by Buycr shall be in writing and shall be delivered
concurrently to Escrow and the City. Once such demand has been delivered to Buyer, Buyer shall
be dccmcd to have waived its right to assume the defense of any action challenging the Resolution
d. Neither Buyer nor the City shall give any instructions to Escrow, and
Escrow shall not accept any instructions from Buyer or the City, other than as set forth in this
Agreement and any amendments hereto. Developer shall not give any instructions to Escrow, and
Escrow shall not accept any instructions from Developer.
FAMEMPT-97M. a
a. Provided Buyer has not instructed Escrow previously to refund the Payment,
in accordance with Section 1 above. the Payment shall be released to the City, without further
instruction by the Parties, upon all of the following having occurred:
(i) The City has deposited into escrow the approved and executed Resolution
as required by Paragraph l.c(i) above;
acceptable to Buyer;
(ii) The City has deposited into escrow a grading permit for the Property
(iii) December 31. 1998 has passed;
(iv) Either no legal, administrative or other challenge to the Resolution has
been filed and served by December 15, 1998, or, if any such challenge has been brought, a court
of final jurisdiction has upheld the validity of the Resolution and that decision has become final.
b. In any event, the condition set forth in Paragraph 2.a(ii) above shall be
deemed waived as of May 15, 1999.
3. Status of Amt. During the entire course of any challenge to the validity of
the Resolution, including a review up to a court of final jurisdiction, this Agreement shall remain
in full force and effect.
4. Escrow_Int=y- . In the event that the Payment has not been refunded to Buyer by
December 31, 1998, as provided in Subsection Lc above, then interest on the Payment thereafter
shall accrue solely for the benefit of the City; provided that, from and after April 1, 1999, any
such interest due the City shall be specifically at an annual rate of six percent (6 %a). However,
in the event an action is brought challenging the validity of the Resolution and a court of final
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jurisdiction invalidates the Resolution, and the Payment thereupon is refunded to Buyer, all
interest on the Payment shall accrue solely for the benefit of Buyer.
5. interference with Escrow Funds. If any Party ( "Party in Violation ") delivers an
instruction to Escrow or takes any other action which delays or interferes with transfer of the
Payment to another Party ( "Injured Party") in accordance with the terms of this Agreement, the
Party in Violation ihall pay interest on the Payment, for the benefit of the Injured Parry, at an
annual rate of twelve percent (12%), which interest shall accrue on a daily basis from the date of
such instruction until such time as the Payment has been properly transferred.
6. Notices. Any notice required or permitted to be given by the Parties to uuc another
pursuant to this Agreement shall be in writing, and shall be delivered to each receiving Party at
its customary place of business via certified first -class U.S. mail, by courier or by telephone
facsimile. Notice shall be effective upon actual receipt, as shown by a mail or courier receipt or
by a facsimile confirmatinn.
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a. This Agreemem represents the complete understanding between Lhe Parties,
and supersedes all prior agreements, discussions and negotiations relating to the subject matter
hereof. No amendment, modification or cancellation of this Agreement shall be valid unless in
writing and executed by the Parties.
b. If any provision of this Agreement is determined to be invalid or
unenforceable, the remainder of the Agreement shall not be affected thereby and shall remain in
full force and effect, unless such invalidation renders any remaining provisions impossible or
impractical to enforce.
C. This Agreement shall bind, and inure to the benefit of, the respective Parties
and their successors in interest, including their heirs, representatives, assigns, partners and
investors, and all other persons and entities acquiring any rights or interests in the Property or any
portion thereof, whether by operation of law or in any other manner whatsoever.
d. This Agreement may be executed in counterparts, each of which when
executed shall be deemed to be an original and which, when taken together, shall constitute one
and the same document.
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a. This Agreement shall be construed, interpreted and enforced in accordance
with the laws of the State of California.
b. In the event of any action or prcx reclu Uruuglat by either Party against the
other to enforce the provisions of this Agreement, the prevailing Party shall be entitled to recover
rcasonable costs and expenses, including reasonable attorneys' fees, incurred in connection
therewith. The courts of the State of California shall have jurisdiction over any such action or
Proceeding, and the proper venue shall be in the Superior Court of the County of Ventura.
d. The Parties represent and warrant that the persons signing this Agreement
on their behalves have full authority to bind the respective Parties, and that each and every term
of this Agreement is fully enforceable in all respects at the time this Agreement is executed. It is
understood by the Parties that the City, while acting in a good faith belief tliat dic Resolution is
legally valid, does not warrant such legal validity.
9. F.xhihits. All exhibits referred to in, and attached to, this Agreement are
incorporated herein by such references.
IN WITNESS WHEREOF, the Parties have executed this Agreement, to be
effective upon the date set forth in the first paragraph hereof.
"DEVELOPER" "CITY"
BOLLINGER DEVELOPMENT INCORPORATED, CITY OF MOORPA.RK, a municipal
a California corporation corporation
By:
Paul Bollinger, President
"BUYER"
TOLL BROS., INC., a Pennsylvania
corporation
By:
James W. Boyd, Vice President
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By:
Patrick Hunter, Mayor
ATTEST:
Deborah Traffenstedt, City Clerk
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Moorpark Country Club Investors, a California limited partnership, hereby agrees this
day of , 1998, to be bound by and perform under the terms and provisions of this
Agreement as if it were a party hereto.
MOORPARK COUNTRY CLUB INVESTORS
By: Bollinger Development Incorporated,
General Partner
By:
Paul A. Bollinger, President
PLO) tel VIA Is WS
Furst American Title Insurance Company, the "Escrow" named in the furcguiug Agreement and
Escrow Instructions, hereby joins in such Agreement and Escrow Instructions to evidence its
agreement to hold the "Payment" and otherwise to perform its obligations thereunder.
By:
Title:
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Date:
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EXHIBIT A
LEGAL DESCRIPTION OF TIIE PROPERTY
All that certain land situated in the State of California,
County of Ventura, described as follows:
Lots 21, 22, 25, 26, 29, the North one half of Lots 30 and
34 and that portion of the South one -half of Lot 33 and the
North one -half of Lot 38 lying west of the so- called "walnut
Canyon Road" of the Vallette Tract being a subdivision of
Lot 2, in Block "L" of the Rancho Simi, as shown on a map
recorded in the office of the County Recorder of raid
Ventura County in Book 3, Page 41 of Maps.
EXCEPTING THEREFROM fifty percent (50 %) of oil, gas,
petroleum, and other hydrocarbon substances and minerals in,
on and under Said property, but without any right to enter
upon the surface or the subsurface above a depth of 500 feet
in connection with exploration for or production of any of
said substances, as reserved by Fred N. Joyner and wife, in
Deed recorded November 15, 1960 in Book 1929, page 7 of
Official Records.
ALSO EXCEPTING THEREFROM that portion of said land described
as Parcel 1 and 2 in the Deed from Jack C. Ecoff and others,
to the County of Ventura by Deed recorded August 13, 1962 in
Book 2190, page 416 of Official Records and by Deed recorded
February 5, 1963 in Book 2270, page 318 of Official Records,
described as Parcel -A and by Deed recorded January 6, 1964
in Book 2457, page 469 of Official Records, described as
Parcel -A.
ALSO EXCEPTING THEREFROM the remaining fifty percent (50%)
of oil, gas, petroleum, and other hydrocarbon substances and
minerals in, on and under said real property, but without
any right to enter upon the surface or subsurface above a
depth of 550 feet in connection with exploration for or
production of any said substances as reserved by Moorpark
Investment Company, a Limited Partnership in Deed recorded
January S, 1913 in Book 4060, page 102 of Official Records.
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2. All that certain land situated in Lhe 5LaLe Uf CdliLUrilia,
County of Ventura, described as follows:
PARCEL 2:
14 5015. i S
Lots 1 L11fough 27 Uf
City of Moorpark, Coi
State of California,
Book 85, Pages 97 to
Office of the County
CouuLy.
TrdL;L 3319 -1 ill Lhe
lnty of Ventura,
as per Map filed in
104 od Maps, in the
Recorder of said
EXCEPT an undivided one --half interest in
and to all oil, gas, and hydrocarbon
substances lying in, on or under said
land; without, however, Lhe riy21L of
entry on the surface or subsurface
thereof to a depth of 500 feet, as
reserved in deed recorded June 30, 1978,
as Instrument No. 68026 of Official
Records.
Lots 3, 6 and 7 lying southeasterly of
Grimes Canyon Road and all of Lots 10,
11, 13, 14, 15, 17 and 18 and the north
half of Lots 19 and 23 all in the
Vallette Tract; in the City of Moorpark,
County of Ventura, State of California,
ae per. Map recorded in Book 3, Page 41
of Maps, in the office of the County
Recorder of said County, also known as
Lots 1 through 27 of Tract 3319- 2 -3 -4.
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EXHIBIT B
RESOLUTION NO. 98-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY of MOORrARX
INTERPRETING THE INTENT OF AND CONDITIONALLY WAIVING A
PROVISION OF THAT CERTAIN DEVELOPMENT AGREEMENT
ENTERED INTO BY AND BETWEEN THE CITY OF MOORPARX AND
BOLLINGER DEVELOPMENT INCORPORATED ON APRIL 1B, 1996
WHEREAS, on April. 18, 1996, the City of Moorpark and Bollinger
Development Incorporated entered 3nLu a Development Agreement ( "the
Development Agreement "); and
WHEREAS, pursuant to Section 13 of the Development Agreement,
Bollinger Development Incorporated has requested an interpretation
of the intent of said AgrPPmant as the same pertains to the period
for use inauguration of Residential Planned Development Permit
("RPD") No. 94 -1 and Conditional Use Permit ( "CUP ") No. 94 -1; and
WHEREAS, pursuant to Section 20 of the Development Agreement,
Bollinger Development Incorporated has requested a waiver relative
to the Golf Course Commencement Date described in Section 4 of said
Agreement.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK DOES
HEREBY RESOLVE AS FOLLOWS:
Section 1. In approving the Development Agreement, it was the
intent of the City that the use inauguration period for RPD 94 -1
not commence until the effective date of maid Agreement and, ac
provided in Section 7, subsection (i)(8), of the Development
Agreement, the period for use inauguration of RPD 94 -1 is three (3)
years from the date that the Development Agreement becomes
effective; provided, however, the term of RPD 94 -1 shall not exceed
the term of Vesting Tentative Tract Map No. 4928 and any extensions
thereof.
Ssctiut2. In approving the Development Agreement, it was the
intent of the City that the use inauguration period for CUP 94 -1
not commence until the effective date of said Agreement and, as
provided in Section 7, subsection (i) (9), of the Development
Agreement, the period for use inauguration of CUP 94 -1 is three (3)
years from t-hp date that the Development Agreement becomes
effective; provided, however, the term of CUP 94 -1 shall not exceed
the term of Vesting Tentative Tract Map No. 4928 and any extensions
thereof.
Section 3. The Golf Course Commencement Date of May 1, 1998,
set torth in the first sentence or Section 4 of the Development
Agreement, is hereby waived on condition that the Golf Course
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commencement L be a or uacterfthan May golf n terse permitted by CUP
No. 94 -1 shat
Section 4. The waiver set for
in section 3 abovansh f the
constitute a waive of, or in any manner apply to, Y
requirewantr. contained in the aarly grading agreeement or the
erosion control plan described in Section 7.(e) of the Development
Agreement.
PASSED, APPROVED AND ADOPTED
ATTEST:
this day of , 1998.
Patri Hunter, Mayor
Deborah S. Tra f enstedt , City Clerk
wo108937.2
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ACCORD AGREEMENT
BOLLINGER DEVELOPMENT INCORPORATED, a California corporation,
( "Developer ") and the CITY OF MOORPARK , a municipal corporation,
( "City ") in consideration of the mutual promises made herein, agree
as follows:
Description of Disputed Obligation
1. Pursuant to subsections 6.(a)(1), 6.(a)(2) and 6.(a)(3)
of that certain Development Agreement dated April 18, 1996, by and
between City and Developer ( "the Development Agreement ") , Developer
is obligated to pay to City Five Million Dollars ($5,000,000) over
• fifteen (15) year period. The parties acknowledge that there is
• dispute between them with respect to when the payments are to
commence.
Accord
2. Developer hereby agrees to pay to City, and City hereby
agrees to accept, in full and complete extinction of the obligation
described in Paragraph 1 above, the sum of Three Million Dollars
($3,000,000) within the time period stated in Section 2 of that
certain Agreement and Escrow Instructions of even date herewith by
and between City, Developer and Toll Bros., Inc. The parties
acknowledge that Developer's payment hereunder is different from
that which Developer was originally obligated to render to City.
After the stated performance has been rendered by Developer and
accepted by City, all of the obligations of the parties described
in Paragraph 1 above and all of the obligations of the parties
described in subsections 6.(a)(4) and 6.(a)(5) of Development
Agreement and in Exhibits "B and "C" and paragraphs 1, 2, 5 through
9, and 10 (2nd sentence only) of Exhibit "D" to the Development
Agreement shall be deemed extinguished.
Settlement as Consideration
3. The parties acknowledge and agree that the agreement set
forth in Paragraph 2 above constitutes a settlement of the dispute
described in Paragraph 1 above and that settlement of that dispute
constitutes the consideration for this Accord Agreement.
Executed on the day of
California.
1998 at Moorpark,
BOLLINGER DEVELOPMENT INCORPORATED
By:
LAX2:208937.1
Paul A. Bollinger
President
r
CITY OF MOORPARK
By:
Patrick Hunter
Mayor
ATTEST:
Deborah S. Traffenstedt, City Clerk
SATISFACTION
City hereby acknowledges receipt in full of the performance
described in Paragraph 3 of the Accord Agreement set forth above,
and accepts that performance in full satisfaction and extinction of
the obligations described in Paragraphs 1 and 2 of the Accord
Agreement set forth above.
CITY OF MOORPARK
By:
Patrick Hunter
Mayor
ATTEST:
Deborah S. Traffenstedt, City Clerk
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