HomeMy WebLinkAboutAGENDA REPORT 1998 1216 CC REG ITEM 12BI"1'E1VI I 2-e if
ORDINANCE NO. 250
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF MOORPARK,
CALIFORNIA, ADOPTING A DEVELOPMENT AGREEMENT BETWEEN
THE CITY OF MOORPARK AND A -B PROPERTIES, AND A
DEVELOPMENT AGREEMENT BETWEEN THE CITY OF MOORPARK AND
THE SOUTHERN CALIFORNIA EDISON COMPANY
WHEREAS, at a duly noticed public hearing on April 14, and
November 18, 1998, the City Council considered the application
filed by A -B Properties and Southern California Edison Company for
General Plan Amendment No. 97 -2 to amend the Land Use Element of
the General Plan on undeveloped land approximately 1,300 feet west
of Gabbert Road and north of the railroad tracks from "AG -1"
(Agricultural ldu /10 -40 acres) to "I -2" (Medium Industrial) and
Zone Change No. 97 -6 to change the Zoning on the property from A -E
(Agricultural Exclusive) to M -2 (Limited Industrial) (Assessor's
Parcel Nos. 500 -34 -22 and -23); and
WHEREAS, the Planning Commission of the City of Moorpark
adopted Resolution PC -98 -360 on November 9, 1998 recommending to
the City Council approval of the proposed Development Agreement
between the City and A -B Properties and Southern California Edison
Company; and
WHEREAS, the City Council on November 18, 1998 determined that
since the proposed Development Agreement relates to and would
provide for financing and construction of various improvements and
facilities relating to the project area, the potential
environmental impacts relating to this project have already been
addressed by the Negative Declaration prepared for General Plan
Amendment No. 97 -2 and Zone Change No. 97 -6.
The City Council of the City of Moorpark, California, ordains as
follows:
SECTION 1. Findings:
(1) Government Code Section 65864 of the State Planning and Zoning
Law provides that cities may enter into development agreements
with persons having equitable interest in real property for
development of that property.
(2) The owners of the property covered by General Plan Amendment
No. 97 -2 and Zone Change No. 97 -6 have applied to the City of
Moorpark to seek Development Agreements between the City and
said owners pursuant to Chapter 15.40 of the Moorpark
Municipal Code.
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ACTION-
meted Ord x-50
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000376
Ordinance No. 250
Page 2
(3) The Planning Commission
noticed public hearing
Development Agreement at
has made recommendations
Council pertaining to
Agreements.
of the City of Moorpark at a duly
on November 9, 1998 reviewed the
the request of the City Council, and
in Resolution PC -98 -360 to the City
the approval of the Development
(4) The City Council has received Planning Commission Resolution
PC -98 -360 and has considered the Planning Commission
evaluation and recommendations for approval of the Development
Agreements between the City and A -B Properties, and the City
and Southern California Edison Company.
(5) A duly noticed public hearing was conducted by the City
Council on November 18, 1998 to consider the Development
Agreements and to accept public testimony related thereto.
(6) The City Council has considered all points of public testimony
relevant to the Development Agreements and has given careful
consideration to the content of the Development Agreements.
(7) The Development Agreements are consistent with the General
Plan.
(8) The Development Agreements address the period of development,
public facilities and infrastructure development and financing
for these improvements and sets forth reasonable mitigation
fees to defer the cost of development to minimize impacts to
the City.
(9) The City Council has determined that since the proposed
Development Agreements relate to and would provide for
financing and construction of various improvements and
facilities relating to the project area, the potential
environmental impacts relating to this project have already
been addressed by the Negative Declaration prepared for
General Plan Amendment No. 97 -2 and Zone Change No. 97 -6.
SECTION 2. Adoption
(1) The City Council of the City of Moorpark hereby approves the
Development Agreements attached hereto as Attachments "A" and
"B" and incorporated by reference, between the City of
Moorpark and A -B Properties, and the City of Moorpark and
Southern California Edison Company.
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Ordinance No. 250
Page 3
(2) The Mayor and City Manager are authorized to execute and sign
the final Development Agreements and any covenants necessary
to effect the agreement.
(3) Upon execution, the Development Agreements shall be recorded
within the Office of the County Recorder, County of Ventura,
as a covenant running with all the lands comprising General
Plan Amendment 97 -2 and Zone Change No. 97 -6.
(4) The Agreements shall become operative and run for the term
specified within the agreements.
SECTION 3. That if any section, subsection, sentence,
clause, phrase, part or portion of this Ordinance is for any reason
held to be invalid or unconstitutional by any court of competent
jurisdiction, such decision shall not affect the validity of the
remaining portions of this Ordinance. The City Council declares
that it would have adopted this Ordinance and each section,
subsection, sentence, clause, phrase, part or portion thereof,
irrespective of the fact that any one or more sections,
subsections, sentences, clauses, phrases, parts or portions be
declared invalid or unconstitutional.
SECTION 4. This Ordinance shall become effective thirty
(30) days after the passage and adoption.
SECTION 5. The City Clerk shall certify to the passage and
adoption of this Ordinance; shall enter the same in the book of
original ordinances of said city; shall make a minute of the
passage and adoption thereof in the records of the proceedings of
the City Council at which the same is passed and adopted; and
shall, within fifteen (15) days after the passage and adoption
thereof, cause the same to be published once in the Moorpark Star,
a newspaper of general circulation, as defined in Section 6008 of
the Government Code, for the City of Moorpark, and which is hereby
designated for that purpose.
000378
Ordinance No. 250
Page 4
PASSED AND ADOPTED this day of , 1998.
Patrick Hunter, Mayor
ATTEST:
Deborah S. Traffenstedt
City Clerk
Attachment A. Development Agreement between the City and A -B
Properties
Attachment B. Development Agreement between the City and
Southern California Edison Company
000373
Recording Requested By
And When Recorded Return to:
CITY CLERK
CITY OF MOORPARK
799 Moorpark Avenue
Moorpark, California 93021
EXEMPT FROM RECORDER'S FEES
Pursuant to Government Code
§ 6103
DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE CITY OF MOORPARK
AND
A -B PROPERTIES
THIS AGREEMENT SHALL BE RECORDED WITHIN TEN DAYS
OF EXECUTION BY ALL PARTIES HERETO PURSUANT TO
THE REQUIREMENTS OF GOVERNMENT CODE §65868.5
Citymgr \A -B Properties Agreement 11398.7
000380
DEVELOPMENT AGREEMENT
This Development Agreement ( "the Agreement ") is made and
entered into this day of , 19 , by and between
the CITY OF MOORPARK, a municipal corporation, (referred to
hereinafter as "City ") and A -B Properties a California General
Partnership (referred to hereinafter as "Developer ") . City and
Developer are referred to hereinafter individually as "Party" and
collectively as "Parties." In consideration of the mutual
covenants and agreement's contained in this Agreement, City and
Developer agree as follows:
1. Recitals. This Agreement is made with respect to the
following facts and for the following purposes, each of which
is acknowledged as true and correct by the Parties:
1.1. Pursuant to Government Code section 65864 et sec.. and
Moorpark Municipal Code chapter 15.40, City is
authorized to enter into a binding contractual
agreement with any person having a legal or equitable
interest in real property within the City for the
development of such property in order to establish
certainty in the development process.
1.2. [INTENTIONALLY LEFT BLANK]
1.3. Developer is owner in fee simple of certain real
property in the City of Moorpark, as more specifically
described by the legal description set forth in Exhibit
A, which exhibit is attached hereto and incorporated
herein by this reference (the "Property ").
1.4. City has approved, or is in the process of approving,
General Plan Amendment No. 97-2 ("GP") and Zone Change
No. 97 -6 ("ZC"), (The GP and ZC, are collectively
referred to as the "Project Approvals
1.5. By this Agreement, City desires to obtain the binding
agreement of Developer to develop the Property in
accordance with the Project Approvals and this
Agreement. In consideration thereof, City agrees to
limit the future exercise of certain of its
governmental and proprietary powers to the extent
specified in this Agreement.
1.6. By this Agreement, Developer desires to obtain the
binding agreement of City to permit the development of
the Property in accordance with the Project Approvals
and this Agreement. In consideration thereof,
Developer agrees to waive its rights to legally
challenge the limitations and exactions imposed upon
A -B PROPERTIES AGREEMENT 11398.7
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the development of the Property pursuant to the Project
Approvals, this Agreement and any Subsequent Approvals
(as defined in Section 5.3 of this Agreement) and to
provide the public benefits and improvements specified
in this Agreement.
1.7. City and Developer acknowledge and agree that the
consideration that is to be exchanged pursuant to this
Agreement is fair, just and reasonable and that this
Agreement is consistent with the General Plan of City
as amended by General Plan Amendment No.97 -6.
1.8. On November 9, 1998, the Planning Commission of City
commenced a duly noticed public hearing on this
Agreement and at the conclusion of the hearing
recommended approval of the Agreement.
1.9. On November 18, 1998, the City Council of City ( "City
Council ") commenced a duly noticed public hearing on
this Agreement which was continued to December 2, 1998,
and at the conclusion of the hearing approved the
Agreement by Ordinance No. 250 ( "the Enabling
Ordinance ").
2. Property Subject To This Agreement. All of the Property shall
Be subject to this Agreement. The Property may be referred to
hereinafter as "the site" or "the Project area ".
3. Binding Effect. The burdens of this Agreement are binding
upon, and the benefits of the Agreement inure to, each Party
and each successive successor in interest thereto and
constitute covenants that run with the Property. Whenever the
terms "City" and "Developer" are used herein, such terms shall
include every successive successor in interest thereto, except
that the term "Developer" shall not include the purchaser or
transferee of any lot within the Project area that has been
fully developed in accordance with the Project Approvals and
this Agreement.
3.1. Constructive Notice and Acceptance. Every person who
acquires any right, title or interest in or to any
portion of the Property in which the Developer has a
legal interest is, and shall be, conclusively deemed to
have consented and agreed to be bound by this
Agreement, whether or not any reference to the
Agreement is contained in the instrument by which such
person acquired such right, title or interest.
3.2. Release Upon Transfer. Upon the sale or transfer of
the Developer's interest in any portion of the
Property, that Developer shall be released from its
obligations with respect to the portion so sold or
A -E PROPERTIES AGREEMENT 11398.7
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transferred subsequent to the effective date of the
sale or transfer, provided that the Developer (i) was
not in breach of this Agreement at the time of the sale
or transfer and (ii) prior to the sale or transfer,
delivers to City a written assumption agreement, duly
executed by the purchaser or transferee and notarized
by a notary public, whereby the purchaser or transferee
expressly assumes the obligations of Developer under
this Agreement with respect to the sold or transferred
portion of the Property. Failure to provide a written
assumption agreement hereunder shall not negate, modify
or otherwise affect the liability of the purchaser or
transferee pursuant to this Agreement. Nothing
contained herein shall be deemed to grant to City
discretion to approve or deny any such sale or
transfer, except as otherwise expressly provided in
this Agreement.
4. Development of the Property. The following provisions shall
govern the subdivision, development and use of the Property.
4.1. Permitted Uses. The permitted and conditionally
permitted uses of the Property shall be limited to
those that are allowed by this Agreement.
4.2. Building Standards. All construction on the Property
shall adhere to the Uniform Building Code, including
the Fire Resistive Design Manual, the National
Electrical Code, the Uniform Plumbing Code, the Uniform
Mechanical Code, the Uniform Housing Code, the Uniform
Code for the Abatement of Dangerous Buildings, the
Uniform Code for Building Conservation and the Uniform
Administrative Code in effect at the time the plan
check or permit is approved and to any federal or state
building requirements that are then in effect
(collectively "the Building Codes ").
5. Vesting of Development Rights.
5.1. Timing of Development. In Pardee Construction Co. v.
City of Camarillo, 37 Cal.3d 465 (1984), the California
Supreme Court held that the failure of the parties
therein to provide for the timing or rate of
development resulted in a later- adopted initiative
restricting the rate of development to prevail against
the parties' agreement. City and Developer intend to
avoid the result in Pardee by acknowledging and
providing that Developer shall have the right, without
obligation, to develop the Property in such order and
at such rate and times as Developer deems appropriate
within the exercise of its subjective business
judgment, except as provided for in this Agreement.
A -E PROPERTIES AGREEMENT 11398.7
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000383
In furtherance of the Parties' intent, as set forth in
this section, no future amendment of any existing City
ordinance or resolution, or future adoption of any
ordinance, resolution or other action, that purports to
limit the rate or timing of development over time or
alter the sequencing of development phases, whether
adopted or imposed by the City Council or through the
initiative or referendum process, shall apply to the
Property. In particular, but without limiting any of
the foregoing, no numerical restriction shall be placed
on the number of building units that can be built each
year within the Project Area. However, nothing in this
section shall be construed to limit City's right to
insure that Developer timely provides all
infrastructure required by the Project Approvals,
Subsequent Approvals and this Agreement.
5.2. Amendment of Project
the Project Approva:
the City Council
referendum process,
Property, unless the
the amendment.
Approvals. No amendment of any of
Ls, whether adopted or approved by
or through the initiative or
shall apply to any portion of the
Developer has agreed in writing to
5.3. Issuance of Subsequent Approvals. Applications for
land use approvals, entitlements and permits, including
without limitation subdivision maps (e.g. tentative,
vesting tentative, parcel, vesting parcel, and final
maps), subdivision improvement agreements and other
agreements relating to the Project, lot line
adjustments, preliminary and final planned development
permits, use permits, design review approvals (e.g.
site plans, architectural plans and landscaping plans),
encroachment permits, and sewer and water connections
that are necessary to or desirable for the development
of the Project (collectively "the Subsequent
Approvals "; individually "a Subsequent Approval ") shall
be consistent with the Project Approvals and this
Agreement. For purposes of this Agreement, Subsequent
Approvals do not include building permits.
A -B PROPERTIES AGREEMENT 11398.7
Subsequent Approvals shall be governed by the Project
Approvals and by the applicable provisions of the
Moorpark General Plan, the Moorpark Municipal Code and
other City ordinances, resolutions, rules, regulations,
policies, standards and requirements as most recently
adopted or approved by the City Council or through the
initiative or referendum process and in effect at the
time that the application for the Subsequent Approval
is deemed complete by City in City's sole
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discretion(collectively "City Laws "), except City Laws
that:
(a) change any permitted or conditional permitted uses
of the Property from what is allowed by the Project
Approvals or this Agreement;
(b) limit or control the rate, timing, phasing or
sequencing of the approval, development or construction
of all or any part of the Project in any manner,
provided that all infrastructure required to serve the
portion of the Property covered by the Subsequent
Approval is in place or is scheduled to be in place
prior to completion of construction;
(c) are not uniformly applied on a City -wide basis to
all substantially similar types of development projects
or to all properties with similar land use
designations; or
(d) control commercial rents.
5.4. Term of Subsequent Approvals. The term of any tentative
map for the Property, or any portion thereof, shall
expire eight (8)years after its approval or conditional
approval or upon the expiration or earlier termination
of this Agreement, whichever occurs first,
notwithstanding the fact that the final map may be
filed in phases. Each Developer hereby waives any
right that it may have under the Subdivision Map Act,
Government Code section 66410 et seq., or any successor
thereto, to apply for an extension of the time at which
the tentative map expires pursuant to this subsection.
No portion of the Property for which a final map or
parcel map has been recorded shall be reverted to
acreage at the initiative of City during the term of
this Agreement.
A -E PROPERTIES AGREEMENT 11398.7
The term of any Subsequent Approval, except a tentative
map, shall be one year; provided that the term may be
extended by the decision maker for two (2) additional
one (1) year periods upon application of the Developer
holding the Subsequent Approval filed with City's
Department of Community Development prior to the
expiration of that Approval. Each such Subsequent
Approval shall be deemed inaugurated, and no extension
shall be necessary, if a building permit was issued and
the foundation received final inspection by City's
Building Inspector prior to the expiration of that
Approval.
0003853
It is understood by City and Developer that certain
Subsequent Approvals may not remain valid for the term
of this Agreement. Accordingly, throughout the term of
this Agreement, the Developer shall have the right, at
its election, to apply for a new permit to replace a
permit that has expired or is about to expire.
5.5. Modification Of Approvals. Throughout the term of this
Agreement, the Developer shall have the right, at its
election and without risk to any right that is vested
in it pursuant to this section, to apply to City for
minor modifications to Project Approvals and Subsequent
Approvals. The approval or conditional approval of any
such minor modification shall not require an amendment
to this Agreement, provided that, in addition to any
other findings that may be required in order to approve
or conditionally approve the modification, a finding is
made that the modification is consistent with this
Agreement.
5.6. Issuance of Building Permits. No building permit,
final inspection or certificate of occupancy will be
unreasonably withheld from the Developer if all
infrastructure required to serve the portion of the
Property covered by the building permit is in place or
is scheduled to be in place prior to completion of
construction and all of the other relevant provisions
of the Project Approvals, Subsequent Approvals and this
Agreement have been satisfied. In no event shall
building permits be allocated on any annual numerical
basis or on any arbitrary allocation basis.
5.7. Moratorium on Development. Nothing in this Agreement
shall prevent City, whether by the City Council or
through the initiative or referendum process, from
adopting or imposing a moratorium on the processing and
issuance of Subsequent Approvals and building permits
and on the finalizing of building permits by means of
a final inspection or certificate of occupancy,
provided that the moratorium is adopted or imposed (i)
on a City -wide basis to all substantially similar types
of development projects and properties with similar
land use designations and (ii) as a result of a utility
shortage or a reasonably foreseeable utility shortage,
including without limitation a shortage of water, sewer
treatment capacity, electricity or natural gas.
6. Developer Agreements.
6.1. The Developer shall comply with (i) this Agreement,
(ii) the Project Approvals, and (iii) all Subsequent
A -B PROPERTIES AGREEMENT 11398.7
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000386
Approvals for which it was the applicant or a successor
in interest to the applicant.
6.2. All lands and interests in land dedicated to City shall
be free and clear of liens and encumbrances other than
easements or restrictions that do not preclude or
interfere with use of the land or interest for its
intended purpose, as reasonably determined by City.
6.3. As a condition of the issuance of each building permit,
Developer shall pay City a fee to be used for park
improvements within the City of Moorpark. The amount
of the fee shall be twenty -five cents ($.25) per square
foot of gross floor area. The fee shall be adjusted
annually (commencing one (1) year after the first
building permit is issued within the Project Area by
any increase in the Consumer Price Index (CPI) until
all fees have been paid. The CPI increase shall be
determined by using the information provided by the
U.S. Department of Labor, Bureau of Labor Statistics,
for all urban consumers within the Los
Angeles /Anaheim /Riverside metropolitan area during the
prior year. The calculation shall be made using the
month which is four (4) months prior to the month in
which the Development Agreement is approved by the City
Council (e.g., if approval occurs in June, then the
month of February is used to calculate the increase).
This fee may be expended by City in its sole and
unfettered discretion.
6.4. As a condition of the issuance of each building permit
for any use within the boundaries of the Project Area,
Developer shall pay City a development fee as described
herein (the "Development Fee "). The Development Fee
may be expended by City in its sole and unfettered
discretion. On the effective date of this Agreement,
the amount of the Development Fee shall be Twenty One
Thousand Dollars ($21,000.00) per acre of each lot on
which the building is located. The fee shall be
adjusted annually (commencing one (1) year after the
first building permit is issued within the Project Area
by any increase in the Consumer Price Index (CPI) until
all fees have been paid. The CPI increase shall be
determined by using the information provided by the
U.S. Department of labor, Bureau of Labor Statistics,
for all urban consumers within the Los
Angeles /Anaheim /Riverside metropolitan area during the
prior year. The calculation shall be made using the
month which is four (4) months prior to the month in
which the Development Agreement is approved by the City
Council (e.g., if approval occurs in June, then the
month of February is used to calculate the increase).
A -8 PROPERTIES AGREEMENT 11398.7
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6.5. As a condition of the issuance of each building permit
for any use within the boundaries of the Project Area,
Developer shall pay City a traffic mitigation fee as
described herein ( "Citywide Traffic Fee "). The
Citywide Traffic Fee may be expended by City in its
sole and unfettered discretion. On the effective date
of this Agreement, the amount of the Citywide Traffic
Fee shall be Eighteen Thousand Dollars ($18,000.00) per
acre of each lot on which the use is located.
Commencing on January 1, 2001, and annually thereafter,
the Citywide Traffic Fee shall be increased to reflect
the change in the State Highway Bid Price Index for the
twelve (12) month period that is reported in the latest
issue of the Engineering News Record that is available
on December 31 of the preceding year ( "annual
indexing "). In the event there is a decrease in the
referenced Index for any annual indexing, the Citywide
Traffic Fee shall remain at its then current amount
until such time as the next subsequent annual indexing
which results in an increase.
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
6.7. Developer agrees to pay Air Quality Fees, that are to
be calculated by City at its sole and unfettered
discretion consistent with similar projects in the City
as a condition on each Subsequent Approval within the
boundaries of the Project Area. The Air Quality Fees
may be expended by City in its sole discretion for
reduction of regional air pollution emissions and to
mitigate residual Project air quality impacts.
6.8. Developer agrees to cast affirmative ballots for the
formation of an assessment district and levying of
assessments, for the maintenance of parkway and median
landscaping, street lighting and if requested by the
City Council, parks for the provision of special
benefits conferred by same upon properties within the
Project. Developer further agrees to form one or more
property owner associations and to obligate said
associations to provide for maintenance of parkway and
median landscaping, street lighting, and if requested
by the City Council, parks in the event the
aforementioned assessment district is dissolved or
altered in any way or assessments are reduced or
limited in any way by a ballot election of property
owners, or if the assessment district is invalidated by
court action.
A -B PROPERTIES AGREEMENT 11398.7
000388
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, 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.
6.10. Prior to City Council action on any Subsequent
Approval, or grading of the Property, whichever occurs
first, Developer agrees to provide City an irrevocable
offer of dedication to dedicate right -of -way at no cost
to City for the future 118 bypass along the entire
length of the north side of the property, along the
east side of the Gabbert Channel, and a connector with
a radius as determined by the City at its sole and
unfettered discretion. The right -of -way shall be one
hundred and twenty feet (1201) wide along the north
side of the property (east -west section) and one
hundred feet (1001) along the east side of the channel
(north -south section) plus any necessary slope
easements to accommodate a level right -of -way of the
required width and slope easements to accommodate a
grade separation crossing of the railroad tracks along
the southern boundary. Developer further agrees to
dedicate access rights from the property to the City
for the 118 bypass except for no more then one (1)
approved intersection with public streets. City shall
have final approval of the location, legal description
and use of the property offered for dedication. City
may transfer its interest in the property after
acceptance of its dedication to any other public
entity.
6.11. Developer agrees that as part of any grading of the
property the right -of -way for the future 118 bypass
shall be graded per City direction.
6.12. Developer agrees to comply with all the provisions of
the Hillside Management Ordinance (Chapter 17.38 of the
Municipal Code) of the City.
A -B PROPERTIES AGREEMENT 11398.7
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6.13. Developer agrees to pay a pro -rata share, as determined
by the City at its sole and unfettered discretion, for
the funding and construction of the improvements
identified in the Gabbert and Walnut Canyon Channels
Deficiency Study. Developer also acknowledges that
interim improvements may also be necessary to
facilitate any new use or development of the property
and Developer agrees that they shall be responsible for
any such interim improvements as their sole
responsibility, without credit of these costs, except
as may be provided in the implementation plan for the
Gabbert and Walnut Canyon Channels Deficiency Study.
6.14. Prior to any subdivision or new use of the property,
Developer agrees to acquire and construct, at their
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.
6.15. Developer agrees to not oppose creation of a
redevelopment Project Area (as defined by applicable
State law) encompassing any part of the Property
provided that the Project Area is consistent with the
rights of Developer under this Agreement.
6.16. Developer agrees not to request any concession, waiver,
modification or reduction of any fee, regulation,
requirement, policy or standard condition for any
Subsequent Approval and further agrees to pay all fees
imposed by City for future buildings, so long as said
fees are also imposed in a similar manner on similar
projects.
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 consistent with
Civil Code Section 815 et seq., except for the
following purposes: temporary construction (including
temporary pumping needed for dewartering as part of any
approved grading operations for the Property),
landscape maintenance of manufactured slope areas,
vegetation clearance within two hundred (200) feet of
any structure for fire hazard reduction, revegetation
and biological habitat enhancement required by City
consistent with any Mitigation Monitoring Program,
drainage conveyance, emergency access and extension of
State Route 118. No excavation, drilling, extraction,
pumping (excluding such pumping as may be needed for
dewatering as part of approved grading operations) ,
mining, or similar activity shall be allowed in any
A -B PROPERTIES AGREEMENT 11398.7
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portion of the Property zoned Open Space. The
limitations and exclusions described in this subsection
shall be included in the conservation easement. The
foregoing does not restrict the extraction of
subsurface mineral resources by drilling from off the
Property so long as the drilling apparatus and
equipment are screened from view from all points within
the City. Further, if the drilling site is not within
the City, Developer agrees,that before proceeding with
any drilling it shall secure a use permit from the City
which may include conditions ordinarily placed upon
drilling opertations. Further, noise impacts from the
drilling shall meet the same noise standards as placed
on Industrial Planned Development Permits and there
shall be no visible evidence or impacts on the ground
surface of the Property:
The conservation easement shall be recorded
concurrently with the recordation of the first final
subdivision map for the Property.
6.18. Prior to the effective date of the Ordinance approving
Zone Change No. 97 -6, 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.
6.19. Developer agrees that as a condition of the
City's approval of the first Subsequent Approval for
the Property, Developer shall submit improvement
plans to improve Gabbert Road from the Union Pacific
Gabbert Road rail crossing to a point approximately
one hundred twenty -five (125) feet north of the rail
crossing to four travel lanes, two eight (8) foot
bike lanes and two ten (10) foot parkways inclusive
of sidewalks ( Gabbert Road improvements). The plans
for the Gabbert Road improvements must be approved by
the City and a surety in an amount and form
determined by the City in its sole and unfettered
discretion to guarantee this improvement shall be
provided prior to approval of the first final Map for
the Property occurring after the operative date of
this Agreement. The Gabbert Road improvements shall
be constructed prior to issuance of a building permit
for any portion of the Property that exceeds forty
percent (40 %) of the acreage of the total of all lots
created by the recordation of the first final map for
the Property occurring after the operative date of
this Agreement In the event the Improvements
required pursuant to Section 6.22 of this Agreement
A -B PROPERTIES AGREEMENT 11398.7
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VO03SIL
are constructed, accepted by the City and open to the
public prior to the issuance of a building permit for
any portion of the Property that exceeds forty
percent (40 %) of the acreage of the total of all lots
created by the recordation of the first final map for
the Property occurring after the operative date of
this Agreement, then the improvements required by
this Section 6.19 shall not be required to be
constructed by the Developer.
6.20. Prior to City action on the first Subsequent Approval
for the Property, Developer shall provide a traffic
study to determine if signalization of the
intersection of the Gabbert Road /Poindexter Avenue is
needed. Developer agrees that City at its sole and
unfettered discretion may condition any Subsequent
Approval of the Property to construct the traffic
signal or pay a fair share payment at the above
intersection. Construction of the signal, if
required, shall occur at the same time as the Gabbert
Road improvements in Section 6.19, above, or such
later date as determined by the City Council at its
sole and unfettered discretion.
6.21. Developer shall construct a thirty -two (32) foot
wide paved access road (paved access road) to the
Property to serve as the primary access until such
time as the Improvements referenced in Section 6.22
are constructed. At such time as the Improvements
in Section 6.22 are opened to the public, the paved
access road shall become an emergency access only
for the Property. The paved access road shall be
located generally following the existing unpaved
access road to the Property with the final location
of said paved access road to be determined by the
City at its sole and unfettered discretion. The
paved access road shall be constructed to City
Standards for an industrial street but with no
requirement for curb, gutter, or sidewalk except
curbs that may be determined necessary to provide
for positive drainage.
6.22. Prior to issuance of a building permit for any
portion of the Property that exceeds seventy percent
(70 %) of the acreage of the total of all lots
created by the recordation of the first final Map
for the Property occurring after the operative date
of this Agreement, Developer shall cause to be
constructed a street extending north from Los
Angeles Avenue (SR 118) including an underground
crossing of the Union Pacific railroad tracks to a
point approximately six hundred (600) feet north of
A -B PROPERTIES AGREEMENT 11398.7
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00042
said railroad tracks (Improvements) within the area
of the offer of dedication required of Developer in
Section 6.10 of this Agreement. The preliminary
improvement plans must be approved by the City and a
surety in an amount and form determined by the City
in its sole and unfettered discretion to guarantee
the Improvements shall be provided prior to approval
of the first final map for the Property occurring
after the operative date of this Agreement. Prior
to issuance of a building permit for any portion of
the Property that exceeds forty percent (40 %) of the
acreage of the total of all lots created by the
recordation of the first final map for the Property
occurring after the operative date of this
Agreement, City must approve in it sole and
unfettered discretion the final design plans and
specifications for the Improvements and a financing
plan that demonstrates the ability to fund the
Improvements. This financing plan may include at
City's sole and unfettered discretion, use of
Citywide Traffic monies.
7. City Agreements.
7.1. City shall use its best efforts to process plan
checking and related processing for the project in an
expedited manner.
7.2. City shall exempt this project from payment of the
Gabbert Road /Casey Road Area of Construction (AOC)
fees.
7.3. City agrees that upon receipt of a landowners, petition
by developer and Developer's payment of a fee as
determined necessary by City in its sole and unfettered
discretion, City shall commence proceedings to form a
Mello -Roos Community Facilities District ( "District ")
and to incur bonded indebtedness to finance all or
portions of the on site and off site public facilities,
infrastructure and services that are required by this
Agreement and Subsequent Approvals and that may be
provided pursuant to the Mello -Roos Community
Facilities Act of 1982 (the "Act "); provided, however,
the City Council, in its sole and unfettered
discretion, may abandon establishment of the District
upon the conclusion of the public hearing required by
California Government Code Section 53321 and /or deem it
unnecessary to incur bonded indebtedness at the
conclusion of the hearing required by California
Government Code Section 53345. The formation, type of
assessment district (if City determines another type of
assessment district other than District is more
A -B PROPERTIES AGREEMENT 11398.7
-14-
odol9l
appropriate) and method and spread of assessment shall
be at the City's sole and unfettered discretion.
7.4. If requested in writing by Developer and limited to
City's legal authority, City shall proceed to acquire,
at Developer's sole cost and expense, easements or fee
title to land in which Developer does not have title or
interest in order to allow construction of public
improvements required of Developer which are outside
Developer's legal boundaries. The process shall
generally follow Government Code Section 66457 et. seq.
and shall include the obligation of Developer to enter
into an agreement with City, guarantee by cash deposits
and other security as the City may require, to pay all
City costs including but not limited to, acquisition of
the interest, attorney fees, appraisal fees,
engineering fees, and City overhead expenses of fifteen
percent (15 %) on all out -of- pocket costs and City staff
costs.
Supersession of Agreement by Change of Law. In the event that
any state or federal law or regulation enacted after the date
the Enabling Ordinance was adopted by the City Council
prevents or precludes compliance with any provision of the
Agreement, such provision shall be deemed modified or
suspended to comply with such state or federal law or
regulation, as reasonably determined necessary by City in its
sole and unfettered discretion.
9. Demonstration of Good Faith Compliance. In order to ascertain
compliance by the Developer with the provisions of this
Agreement, the Agreement shall be reviewed annually in
accordance with Moorpark Municipal Code chapter 15.40. of
City or any successor thereof then in effect. The failure of
City to conduct any such annual review shall not, in any
manner, constitute a breach of this Agreement by City,
diminish, impede, or abrogate the obligations of the Developer
hereunder or render this Agreement invalid or void.
10. Authorized Delays. Performance by any Party of its
obligations hereunder, other than payment of fees, and
Developer's obligations and restrictions on development as
provided for in Sections 6.19, 6.20, 6.21 and 6.22 of this
Agreement shall be excused during any period of "Excusable
Delay ", as hereinafter defined, provided that the Party
claiming the delay gives notice of the delay to the other
Parties as soon as possible after the same has been
ascertained. For purposes hereof, Excusable Delay shall mean
delay that directly affects, and is beyond the reasonable
control of, the Party claiming the delay, including without
limitation: (a) act of God; (b) civil commotion; (c) riot; (d)
strike, picketing or other labor dispute; (e) shortage of
A -E PROPERTIES AGREEMENT 11398.7
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0003qq
materials or supplies; (e) damage to work in progress by
reason of fire, flood, earthquake or other casualty; (f)
failure, delay or inability of City to provide adequate levels
of public services, facilities or infrastructure to the
Property including, by way of example only, the lack of water
to serve any portion of the Property due to drought; (g) delay
caused by a restriction imposed or mandated by a governmental
entity other than City; or (h) litigation brought by a third
party attacking the validity of this Agreement, a Project
Approval, a Subsequent Approval or any other action necessary
for development of the Property.
11. Default Provisions.
11.1. Default by Developer. The Developer shall be deemed to
have breached this Agreement if it:
(a) practices, or attempts to practice, any fraud or
deceit upon City; or
(b) willfully violates any order, ruling or decision
of any regulatory or judicial body having jurisdiction
over the Property or the Project, provided that
Developer may contest any such order, ruling or
decision by appropriate proceedings conducted in good
faith, in which event no breach of this Agreement shall
be deemed to have occurred unless and until there is a
final adjudication adverse to Developer; or
(c) fails to make any payments required under this
Agreement; or
(d) materially breaches any of the other provisions of
the Agreement and the same is not cured within the time
set forth in a written notice of violation from City to
Developer, which period of time shall not be less than
ten (10) days from the date that the notice is deemed
received, provided if Developer cannot reasonably cure
the breach within the time set forth in the notice,
Developer fails to commence to cure the breach within
such time limit and diligently effect such cure
thereafter.
11.2. Default by City. City shall be deemed in breach of
this Agreement if it:
A -E PROPERTIES AGREEMENT 11398.7
(a) materially breaches any of the provisions of the
Agreement and the same is not cure within the time set
forth in a written notice of violation from Developer
to City, which period shall not be less than ten (10)
days from the date the notice is deemed received,
provided if City cannot reasonably cure the breach
-16-
000395
within the time set forth in the notice, City fails to
commence to cure the breach within such time limit and
diligently effect such cure thereafter.
11.3. Content of Notice of Violation. Every notice of
violation shall state with specificity that it is given
pursuant to this section of the Agreement, the nature
of the alleged breach, and the manner in which the
breach may be satisfactorily cured. The notice shall
be deemed given on the date that it is personally
delivered or on the third day following the day after
it is deposited in the United States mail, in
accordance with Section 20 hereof.
11.4. Remedies for Breach. The Parties acknowledge that
remedies at law, including without limitation money
damages, would be inadequate for breach of this
Agreement by any Party due to the size, nature and
scope of the Project. The Parties also acknowledge
that it would not be feasible or possible to restore
the Property to its natural condition once
implementation of the Agreement has begun. Therefore,
the Parties agree that the remedies for breach of the
Agreement shall be limited to the remedies expressly
set forth in this subsection.
The remedies for breach of the Agreement by City shall
be injunctive relief and /or specific performance.
The remedies for breach of the Agreement by the
Developer shall be injunctive relief and /or specific
performance. In addition, and notwithstanding any
other language of this Agreement, if the breach is of
Subsection 6.4 or 6.5 or 6.9 or 6.10 or 6.19, or 6.20,
or 6.21, or 6.22 of this Agreement, City shall have the
right to withhold the issuance of building permits from
the date that the notice of violation was given
pursuant to Subsection 11.3 hereof until the date that
the breach is cured as provided in the notice of
violation.
Nothing in this subsection shall be deemed to preclude
City from prosecuting a criminal action against the
Developer if it violates any City ordinance or state
statute.
12. Mortgage Protection. At the same time that City gives notice
to the Developer of a breach, City shall send a copy of the
notice to each holder of record of any deed of trust on the
portion of the Property in which Developer has a legal
interest ( "Financier "), provided that the Financier has given
prior written notice of its name and mailing address to City
A -B PROPERTIES AGREEMENT 11398.7
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00039E
and the notice makes specific reference to this section. The
copies shall be sent by United States mail, registered or
certified, postage prepaid, return receipt requested, and
shall be deemed received upon the third (3rd) day after
deposit.
Each Financier that has given prior notice to City pursuant to
this section shall have the right, at its option and insofar
as the rights of City are concerned, to cure any such breach
within fifteen (15) days after the receipt of the notice from
City. If such breach cannot be cured within such time period,
the Financier shall have such additional period as may be
reasonably required to cure the same, provided that the
Financier gives notice to City of its intention to cure and
commences the cure within fifteen (15) days after receipt of
the notice from City and thereafter diligently prosecutes the
same to completion. City shall not commence legal action
against Developer by reason of Developer's breach without
allowing the Financier to cure the same as specified herein.
Notwithstanding any cure by Financier, this Agreement shall be
binding and effective against the Financier and every owner of
the Property, or part thereof, whose title thereto is acquired
by foreclosure, trustee sale or otherwise.
13. Estoppel Certificate. At any time and from time to time, any
Developer may deliver written notice to City and City may
deliver written notice to the Developer requesting that such
Party certify in writing that, to the knowledge of the
certifying Party, (i) this Agreement is in full force and
effect and a binding obligation of the Parties, (ii) this
Agreement has not been amended, or if amended, the identity of
each amendment, and (iii) the requesting Party is not in
breach of this Agreement, or if in breach, a description of
each such breach. The Party receiving such a request shall
execute and return the certificate within thirty (30) days
following receipt of the notice. City acknowledges that a
certificate may be relied upon by successors in interest to
the Developer who requested the certificate and by holders of
record of deeds of trust on the portion of the Property in
which that Developer has a legal interest.
14. Administration of Agreement. Any decision by City staff
concerning the interpretation and administration of this
Agreement and development of the Property in accordance
herewith may be appealed by the Developer to the City Council,
provided that any such appeal shall be filed with the City
Clerk of City within ten (10) days after the affected
Developer receives notice of the staff decision. The City
Council shall render its decision to affirm, reverse or modify
the staff decision within thirty (30) days after the appeal
was filed. The Developer shall not seek judicial review of
A -H PROPERTIES AGREEMENT 11398.7
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000397
any staff decision without first having exhausted its remedies
pursuant to this section.
15. Amendment or Termination by Mutual Consent. In accordance
with the provisions of Ordinance No. 59 of City or any
successor thereof then in effect, this Agreement may be
amended or terminated, in whole or in part by mutual consent
of City and the Developer.
15.1. Exemption for Amendments of Project Approvals. No
amendment to a Project Approval shall require an
amendment to this Agreement and any such amendment
shall be deemed to be incorporated into this Agreement
at the time that the amendment becomes effective,
provided that the amendment is consistent with this
Agreement.
16. Indemnification. The Developer shall indemnify, defend with
counsel approved by City, and hold harmless City and its
officers, employees and agents from and against any and all
losses, liabilities, fines, penalties, costs, claims, demands,
damages, injuries or judgments arising out of, or resulting in
any way from, the Developer's performance pursuant to this
Agreement.
Developer shall indemnify, defend with counsel approved by
City, and hold harmless City and its officers, employees and
agents from and against any action or proceeding to attack,
review, set aside, void or annul this Agreement or any
provision thereof or the Project Approvals or any Subsequent
Approvals.
17. Time of Essence. Time is of the essence for each provision of
this Agreement of which time is an element.
18. Operative Date. This Agreement shall become operative on the
date the Enabling Ordinance becomes effective pursuant to
Government Code Section 36937.
19. Term. This Agreement shall remain in full force and effect
for a term of twenty (20) years commencing on its operative
date unless said term is amended or the Agreement is sooner
terminated as otherwise provided herein.
Upon expiration of the term or earlier termination of this
Agreement, the Parties shall execute any document reasonably
requested by any Party to remove this Agreement from the
public records as to the Property, and every portion thereof,
to the extent permitted by applicable laws.
20. Notices. All notices and other communications given pursuant
to this Agreement shall be in writing and shall be deemed
A -8 PROPERTIES AGREEMENT 11398.7
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000398
received when personally delivered or upon the third (3rd) day
after deposit in the United States mail, registered or
certified, postage prepaid, return receipt requested, to the
Parties at the addresses set forth in Exhibit "C" attached
hereto and incorporated herein.
Any Party may, from time to time, by written notice to the
other, designate a different address which shall be
substituted for the one above specified.
21. Entire Agreement. This Agreement contains the entire
agreement between the Parties regarding the subject matter
hereof, and all prior agreements or understandings, oral or
written, are hereby merged herein. This Agreement shall not
be amended, except as expressly provided herein.
22. Waiver. No waiver of any provision of this Agreement shall
constitute a waiver of any other provision, whether or not
similar; nor shall any such waiver constitute a continuing or
subsequent waiver of the same provision. No waiver shall be
binding, unless it is executed in writing by a duly authorized
representative of the Party against whom enforcement of the
waiver is sought.
23. Severability. If any provision of this Agreement is
determined by a court of competent jurisdiction to be invalid
or unenforceable, the remainder of this Agreement shall be
effective to the extent the remaining provisions are not
rendered impractical to perform, taking into consideration the
purposes of this Agreement.
24. Relationship of the Parties. Each Party acknowledges that, in
entering into and performing under this Agreement, it is
acting as an independent entity and not as an agent of the
other Party in any respect. Nothing contained herein or in
any document executed in connection herewith shall be
construed as creating the relationship of partners, joint
ventures or any other association of any kind or nature
between City and Developer, jointly or severally.
25. No Third Party Beneficiaries. This Agreement is made and
entered into for the sole benefit of the Parties and their
successors in interest. No other person shall have any right
of action based upon any provision of this Agreement.
26. Recordation of Agreement and Amendments. This Agreement and
any amendment thereof shall be recorded with the County
Recorder of the County of Ventura by the City Clerk of City
within the period required by Ordinance No. 59 of City or any
successor thereof then in effect.
A -B PROPERTIES AGREEMENT 11398.7
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000399
27. Cooperation Between City and Developers. City and each
Developer shall execute and deliver to the other all such
other and further instruments and documents as may be
necessary to carry out the purposes of this Agreement.
28. Rules of Construction. The captions and headings of the
various sections and subsections of this Agreement are for
convenience of reference only, and they shall not constitute
a part of this Agreement for any other purpose or affect
interpretation of the Agreement. Should any provision of this
Agreement be found to be in conflict with any provision of the
Project Approvals or the Subsequent Approvals, the provision
of this Agreement shall prevail.
29. Joint Preparation. This Agreement shall be deemed to have
been prepared jointly and equally by the Parties, and it shall
not be construed against any Party on the ground that the
Party prepared the Agreement or caused it to be prepared.
30. Governing Law and Venue. This Agreement is made, entered
into, and executed in the County of Ventura, California, and
the laws of the State of California shall govern its
interpretation and enforcement. Any action, suit or
proceeding related to, or arising from, this Agreement shall
be filed in the appropriate court having jurisdiction in the
County of Ventura.
31. Attorneys' fees under this section shall include attorneys'
fees on any appeal and any post - judgment proceedings to
enforce the judgment. This provision is separate and several
and shall survive the merger of this Agreement into any
judgment on this Agreement.
32. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but
all of which constitute one and the same instrument.
A -B PROPERTIES AGREEMENT 11398.7
-21-
IN WITNESS WHEREOF, A -B Properties and City of Moorpark have
each executed this Development Agreement on the date first above
written.
A -B PROPERTIES AGREEMENT 11398.7
-22-
CITY OF MOORPARK
By:
Patrick Hunter
Mayor
ATTEST
Deborah S. Traffenstedt
City Clerk
A -B Properties
By:
Stephen R. Anderson
General Partner
By:
Paul D.
General
Burns
Partner
000401
EXHIBIT A
LEGAL DESCRIPTION
Part of Subdivision "L" as the same is designated and delineated
upon that certain map entitled, "Map of the lands of Rancho Simi,
in the Ventura and Los Angeles Counties, California ", and recorded
in the office of the County Recorder of Ventura County, in book 3
of Miscellaneous Records (Maps) at page 7 and particularly
described as:
West one half of the Southeast one quarter of Section six (6) in
Township two (2) North of Ranch nineteen (19) West, as the same is
designated and delineated upon the above described map.
EXCEPTING the interest in that certain parcel of land, containing
3.118 acres, as conveyed by H.C. Estes et al., to Southern Pacific
Railrood Company, by deed dated October 6, 1899 and recorded in the
office of the County Recorder of said County of Ventura County, in
book 62 of deeds at page 6 et seq.
ALSO EXCEPT the interest and /or land conveyed to the Southern
California Edison Company in deed recorded March 22, 1968 in book
3280 page 326 of Official Records.
ALSO EXCEPTING THEREFROM that portion thereof as conveyed to Bugle
Boy Industries in a deed recorded December 5, 1990 as Document No.
90- 179525 of Official Records.
END OF LEGAL DESCRIPTION
(Also identified as Assessor's Parcel No. 500 -0- 340- 225)A -1
A -B PROPERTIES AGREEMENT 11398.7
r�
EXHIBIT B
COVENANT RUNNING WITH THE LAND
THIS COVENANT is made this day of , by and
between the A -B Properties and Southern California Edison
Company (Covenantors ") and the City of Moorpark
( "Covenantee ").
WHEREAS, Covenantor is the owner of certain real property
(500.0.340.22 and 23) in the City of Moorpark, County of
Ventura, more particularly described in Exhibit "A" attached
hereto and made a part hereof ( "the Covenantor Property "); and
WHEREAS, Covenantee is the owner of certain real property at
799 Moorpark Avenue, in the City of Moorpark, County of
Ventura, more particularly described in Exhibit "B" attached
hereto and made a part hereof ( "the Covenantor Property "); and
WHEREAS, Covenantee is willing to rezone the Covenantor
Property from Agricultural Exclusive (AE) to Limited
Industrial (M -2) but for the concern that some of the uses
that are presently, or may subsequently be, allowed by right
or permit in the CPD zone are, or may be, inappropriate uses
for the Covenantor Property because of its particular
location;
WHEREAS, Covenantor seeks to have the Covenantors Property
rezoned from Agricultural Exclusive (AE) to Limited Industrial
(M -2) but acknowledges that some of the uses that are
presently, or may subsequently be, allowed by right or permit
in the M -2 zone are, or may be, inappropriate uses for the
Covenantor Property because of its particular location; and
NOW, THEREFORE, in consideration of the mutual promises of the
parties to this Covenant, each to the other as Covenantor and
Covenantee, and expressly for the benefit of, and to bind,
their successors in interest, the parties agree as follows:
B -1
A -B PROPERTIES AGREEMENT 11398.7
0004103
1. Covenantee agrees to adopt an ordinance rezoning the
Covenantor Property from Agricultural Exclusive (AE) to
Limited Industrial (M -2);
2. Covenantor agrees that, commencing on the effective date
of the ordinance rezoning the Covenantor Property from
Agricultural Exclusive (AE) to Limited Industrial (M -2) .
Subject to the following restrictions in addition, and
superseding the M -2 regulations.
A. Primary uses, except agricultural crops, shall be
conducted within completely enclosed buildings and metal faced
buildings shall not be allowed as principal buildings. Outside
storage and operations shall not be allowed as primary uses,
only accessory outside storage shall be allowed, subject to
the same limitations as M -1 (confined to the area to the rear
of the principal building or the rear two - thirds of the
property, whichever is more restrictive, and screened from
view from any property line by appropriate walls, fencing,
earth mounds, or landscaping).
B. The following uses shall not be allowed as a primary use:
• Manufacturing - Batteries
• Manufacturing - Metal industries, primary; Rolling, drawing,
and extruding
• Manufacturing - Rubber and plastics products
• Manufacturing - Tire retreading and recapping
• Manufacturing - Cement, concrete and plaster products
• Mini - storage
• Recreational vehicle storage
• Signs - Freestanding off -site advertising signs
• Transportation services - Truck storage, overnight
3. Covenantor and Covenantee agree that, commencing on the
effective date of the ordinance rezoning the Covenantor
Property from Agricultural Exclusive (AE) to Limited
Industrial (M -2), all uses specified in Paragraph 2.B. hereof
that are presently allowed or that at any time in the future
may be allowed in the M -2 (Limited Industrial) zone, whether
by right or by permit, shall be deemed transferred from the
Covenantors Property to the Covenantee Property for the
benefit of the Covenantee Property.
4. Covenantors and Covenantee agree that from time to time
Covenantee may substitute any other property owned by
Covenantee on the date of the substitution for the Covenantee
Property ( "the Substitute Covenantee Property ") without the
consent of Covenantor by the recordation of an amendment to
NW,
0004104
this Covenant. The amendment shall describe the Substitute
Covenantee Property and shall provide that, commencing on the
date of recordation of the amendment, all uses not specified
in Paragraph 2 hereof that are presently allowed, or that at
any time in the future may be allowed, in the M -2 (Limited
Industrial) zone, whether by right or by permit, shall be
deemed transferred from that Covenantor Property to the
Substitute Covenantee Property for the benefit of the
Substitute Covenantee Property.
S. All of the covenants, restrictions, and limitations set
forth herein shall run with the Covenantee Property and the
Covenantor Property and shall benefit and bind all persons,
whether natural or legal, having or acquiring any right,
title, or interest in any portion of the Covenantee Property
or the Covenantor Property. Each grantee of a conveyance or
purchaser under a contract of sale or similar instrument that
covers any right, title, or interest in or to any portion of
the Covenantee Property or the Covenantor Property, by
accepting a deed or a contract of sale or similar instrument,
accepts the conveyance or sale subject to, and agrees to be
bound and benefited by, all of the covenants, restrictions and
limitations set forth herein.
6. Nothing in this Covenant shall be construed so as to
limit the right of Covenantee to rezone, or the right of
Covenantor to petition Covenantee to rezone, the Covenantor
Property in the future.
7. This Covenant shall remain in full force and effect until
such time as an ordinance rezoning the Covenantor Property
from Agricultural Exclusive (AE) to Limited Industrial (M -2)
to another zone designation becomes effective.
8. This Covenant may be enforced by proceedings at law or in
equity against any person who violates or attempts to violate
a covenant, restriction or limitation hereof. The prevailing
party shall be entitled to recover such attorneys' fees and
court costs as it reasonably incurs in such a proceeding.
9. In the event any provision of this Covenant is found to
be invalid or unenforceable in any proceeding at law or in
equity, such finding shall not affect the other provisions of
this Covenant, which shall remain in full force and effect.
B -3
00040
10. Either party may record in the office of the Recorder of
Ventura County this Covenant or any amendment hereto specified
in Paragraph 4 hereof without the consent of the other party.
IN WITNESS WHEREOF, Covenantor and Covenantee have executed this
Covenant on the date first above written
COVENANTORS
COVENANTEE
A -B PROPERTIES CITY OF MOORPARK
B -4
UUU �U�
EXHIBIT C
To City: City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
Attn. City Manager
To Developer: A -B Properties
4875 Spring Road
Moorpark, CA 93021
ATTN: Stephen R. Anderson
C -1
Citymgr \SCE.1
Recording Requested By
And When Recorded Return to:
CITY CLERK
CITY OF MOORPARK
799 Moorpark Avenue
Moorpark, California 93021
EXEMPT FROM RECORDER'S FEES
Pursuant to Government Code
§ 6103
DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE CITY OF MOORPARK
AND
SOUTHERN CALIFORNIA EDISON COMPANY
THIS AGREEMENT SHALL BE RECORDED WITHIN TEN DAYS
OF EXECUTION BY ALL PARTIES HERETO PURSUANT TO
THE REQUIREMENTS OF GOVERNMENT CODE §65868.5
(JOC-40V
SCE.1
DEVELOPMENT AGREEMENT
This Development Agreement ( "the Agreement ") is made and
entered into this day of , 19—, by and between
the CITY OF MOORPARK, a municipal corporation, (referred to
hereinafter as "City ") and Southern California Edison Company, a
Corporation (referred to hereinafter as "Developer ").
City and Developer are referred to hereinafter individually as
"Party" and collectively as "Parties." In consideration of the
mutual covenants and agreement's contained in this Agreement, City
and Developer agree as follows:
1. Recitals. This Agreement is made with respect to the
following facts and for the following purposes, each of which
is acknowledged as true and correct by the Parties:
1.1. Pursuant to Government Code section 65864 et sec.. and
Moorpark Municipal Code chapter 15.40, City is
authorized to enter into a binding contractual
agreement with any person having a legal or equitable
interest in real property within the City for the
development of such property in order to establish
certainty in the development process.
1.2. [INTENTIONALLY LEFT BLANK]
1.3. Developer is owner in fee simple of certain real
property in the City of Moorpark, as more specifically
described by the legal description set forth in Exhibit
A, which exhibit is attached hereto and incorporated
herein by this reference (the "Property ").
1.4. City has approved, or is in the process of approving,
General Plan Amendment No. 97 -2 ( "GP") and Zone Change
No. 97 -6 ( "ZC"), (The GP and ZC, are collectively
referred to as the "Project Approvals
1.5. By this Agreement, City desires to obtain the binding
agreement of Developer to develop the Property in
accordance with the Project Approvals and this
Agreement. In consideration thereof, City agrees to
limit the future exercise of certain of its
governmental and proprietary powers to the extent
specified in this Agreement.
1.6. By this Agreement, Developer desires to obtain the
binding agreement of City to permit the development of
the Property in accordance with the Project Approvals
and this Agreement. In consideration thereof,
Developer agrees to waive its rights to legally
challenge the limitations and exactions imposed upon
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the development of the Property pursuant to the Project
Approvals, this Agreement and any Subsequent Approvals
(as defined in Section 5.3 of this Agreement) and to
provide the public benefits and improvements specified
in this Agreement.
1.7. City and Developer acknowledge and agree that the
consideration that is to be exchanged pursuant to this
Agreement is fair, just and reasonable and that this
Agreement is consistent with the General Plan of City
as amended by General Plan Amendment No.97 -6.
1.8. On November 9, 1998, the Planning Commission of City
commenced a duly noticed public hearing on this
Agreement and at the conclusion of the hearing
recommended approval of the Agreement.
1.9. On November 18, 1998, the City Council of City ( "City
Council ") commenced a duly noticed public hearing on
this Agreement which was continued to December 2, 1998,
and at the conclusion of the hearing approved the
Agreement by Ordinance No. 250 ( "the Enabling
Ordinance ").
2. Property Subject To This Agreement. All of the Property shall
-Be subject to this Agreement. The Property may be referred to
hereinafter as "the site" or "the Project area ".
3. Binding Effect. The burdens of this Agreement are binding
upon, and the benefits of the Agreement inure to, each Party
and each successive successor in interest thereto and
constitute covenants that run with the Property. Whenever the
terms "City" and "Developer" are used herein, such terms shall
include every successive successor in interest thereto, except
that the term "Developer" shall not include the purchaser or
transferee of any lot within the Project area that has been
fully developed in accordance with the Project Approvals and
this Agreement.
3.1. Constructive Notice and Acceptance. Every person who
acquires any right, title or interest in or to any
portion of the Property in which the Developer has a
legal interest is, and shall be, conclusively deemed to
have consented and agreed to be bound by this
Agreement, whether or not any reference to the
Agreement is contained in the instrument by which such
person acquired such right, title or interest.
3.2. Release Upon Transfer. Upon the sale or transfer of
the Developer's interest in any portion of the
Property, that Developer shall be released from its
obligations with respect to the portion so sold or
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transferred subsequent to the effective date of the
sale or transfer, provided that the Developer (i) was
not in breach of this Agreement at the time of the sale
or transfer and (ii) prior to the sale or transfer,
delivers to City a written assumption agreement, duly
executed by the purchaser or transferee and notarized
by a notary public, whereby the purchaser or transferee
expressly assumes the obligations of Developer under
this Agreement with respect to the sold or transferred
portion of the Property. Failure to provide a written
assumption agreement hereunder shall not negate, modify
or otherwise affect the liability of the purchaser or
transferee pursuant to this Agreement. Nothing
contained herein shall be deemed to grant to City
discretion to approve or deny any such sale or
transfer, except as otherwise expressly provided in
this Agreement.
4. Development of the Property. The following provisions shall
govern the subdivision, development and use of the Property.
4.1. Permitted Uses. The permitted and conditionally
permitted uses of the Property shall be limited to
those that are allowed by this Agreement.
4.2. Building Standards. All construction on the Property
shall adhere to the Uniform Building Code, including
the Fire Resistive Design Manual, the National
Electrical Code, the Uniform Plumbing Code, the Uniform
Mechanical Code, the Uniform Housing Code, the Uniform
Code for the Abatement of Dangerous Buildings, the
Uniform Code for Building Conservation and the Uniform
Administrative Code in effect at the time the plan
check or permit is approved and to any federal or state
building requirements that are then in effect
(collectively "the Building Codes ").
5. vesting of Development Rights.
5.1. Timing of Development. In Pardee Construction Co. v.
City of Camarillo, 37 Cal.3d 465 (1984), the California
Supreme Court held that the failure of the parties
therein to provide for the timing or rate of
development resulted in a later - adopted initiative
restricting the rate of development to prevail against
the parties' agreement. City and Developer intend to
avoid the result in Pardee by acknowledging and
providing that Developer shall have the right, without
obligation, to develop the Property in such order and
at such rate and times as Developer deems appropriate
within the exercise of its subjective business
judgment, except as provided for in this Agreement.
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In furtherance of the Parties' intent, as set forth in
this section, no future amendment of any existing City
ordinance or resolution, or future adoption of any
ordinance, resolution or other action, that purports to
limit the rate or timing of development over time or
alter the sequencing of development phases, whether
adopted or imposed by the City Council or through the
initiative or referendum process, shall apply to the
Property. In particular, but without limiting any of
the foregoing, no numerical restriction shall be placed
on the number of building units that can be built each
year within the Project Area. However, nothing in this
section shall be construed to limit City's right to
insure that Developer timely provides all
infrastructure required by the Project Approvals,
Subsequent Approvals and this Agreement.
5.2. Amendment of Project Approvals. No amendment of any of
the Project Approvals, whether adopted or approved by
the City Council or through the initiative or
referendum process, shall apply to any portion of the
Property, unless the Developer has agreed in writing to
the amendment.
5.3. Issuance of Subsequent Approvals. Applications for
land use approvals, entitlements and permits, including
without limitation subdivision maps (e.g. tentative,
vesting tentative, parcel, vesting parcel, and final
maps), subdivision improvement agreements and other
agreements relating to the Project, lot line
adjustments, preliminary and final planned development
permits, use permits, design review approvals (e.g.
site plans, architectural plans and landscaping plans),
encroachment permits, and sewer and water connections
that are necessary to or desirable for the development
of the Project (collectively "the Subsequent
Approvals "; individually "a Subsequent Approval ") shall
be consistent with the Project Approvals and this
Agreement. For purposes of this Agreement, Subsequent
Approvals do not include building permits.
Subsequent Approvals shall be governed by the Project
Approvals and by the applicable provisions of the
Moorpark General Plan, the Moorpark Municipal Code and
other City ordinances, resolutions, rules, regulations,
policies, standards and requirements as most recently
adopted or approved by the City Council or through the
initiative or referendum process and in effect at the
time that the application for the Subsequent Approval
is deemed complete by City in City's sole
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discretion(collectively "City Laws "), except City Laws
that:
(a) change any permitted or conditional permitted uses
of the Property from what is allowed by the Project
Approvals or this Agreement;
(b) limit or control the rate, timing, phasing or
sequencing of the approval, development or construction
of all or any part of the Project in any manner,
provided that all infrastructure required to serve the
portion of the Property covered by the Subsequent
Approval is in place or is scheduled to be in place
prior to completion of construction;
(c) are not uniformly applied on a City -wide basis to
all substantially similar types of development projects
or to all properties with similar land use
designations; or
(d) control commercial rents.
5.4. Term of Subsequent Approvals. The term of any tentative
map for the Property, or any portion thereof, shall
expire eight (8)years after its approval or conditional
approval or upon the expiration or earlier termination
of this Agreement, whichever occurs first,
notwithstanding the fact that the final map may be
filed in phases. Each Developer hereby waives any
right that it may have under the Subdivision Map Act,
Government Code section 66410 et seq., or any successor
thereto, to apply for an extension of the time at which
the tentative map expires pursuant to this subsection.
No portion of the Property for which a final map or
parcel map has been recorded shall be reverted to
acreage at the initiative of City during the term of
this Agreement.
The term of any Subsequent Approval, except a tentative
map, shall be one year; provided that the term may be
extended by the decision maker for two (2) additional
one (1) year periods upon application of the Developer
holding the Subsequent Approval filed with City's
Department of Community Development prior to the
expiration of that Approval. Each such Subsequent
Approval shall be deemed inaugurated, and no extension
shall be necessary, if a building permit was issued and
the foundation received final inspection by City's
Building Inspector prior to the expiration of that
Approval.
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It is understood by City and Developer that certain
Subsequent Approvals may not remain valid for the term
of this Agreement. Accordingly, throughout the term of
this Agreement, the Developer shall have the right, at
its election, to apply for a new permit to replace a
permit that has expired or is about to expire.
5.5. Modification Of Approvals. Throughout the term of this
Agreement, the Developer shall have the right, at its
election and without risk to any right that is vested
in it pursuant to this section, to apply to City for
minor modifications to Project Approvals and Subsequent
Approvals. The approval or conditional approval of any
such minor modification shall not require an amendment
to this Agreement, provided that, in addition to any
other findings that may be required in order to approve
or conditionally approve the modification, a finding is
made that the modification is consistent with this
Agreement.
5.6. Issuance of Building Permits. No building permit,
final inspection or certificate of occupancy will be
unreasonably withheld from the Developer if all
infrastructure required to serve the portion of the
Property covered by the building permit is in place or
is scheduled to be in place prior to completion of
construction and all of the other relevant provisions
of the Project Approvals, Subsequent Approvals and this
Agreement have been satisfied. In no event shall
building permits be allocated on any annual numerical
basis or on any arbitrary allocation basis.
5.7. Moratorium on Development. Nothing in this Agreement
shall prevent City, whether by the City Council or
through the initiative or referendum process, from
adopting or imposing a moratorium on the processing and
issuance of Subsequent Approvals and building permits
and on the finalizing of building permits by means of
a final inspection or certificate of occupancy,
provided that the moratorium is adopted or imposed (i)
on a City -wide basis to all substantially similar types
of development projects and properties with similar
land use designations and (ii) as a result of a utility
shortage or a reasonably foreseeable utility shortage,
including without limitation a shortage of water, sewer
treatment capacity, electricity or natural gas.
6. Developer Agreements.
6.1. The Developer shall comply with (i) this Agreement,
(ii) the Project Approvals, and (iii) all Subsequent
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Approvals for which it was the applicant or a successor
in interest to the applicant.
6.2. All lands and interests in land dedicated to City shall
be free and clear of liens and encumbrances other than
easements or restrictions that do not preclude or
interfere with use of the land or interest for its
intended purpose, as reasonably determined by City.
6.3. As a condition of the issuance of each building permit,
Developer shall pay City a fee to be used for park
improvements within the City of Moorpark. The amount
of the fee shall be twenty -five cents ($.25) per square
foot of gross floor area. The fee shall be adjusted
annually (commencing one (1) year after the first
building permit is issued within the Project Area by
any increase in the Consumer Price Index (CPI) until
all fees have been paid. The CPI increase shall be
determined by using the information provided by the
U.S. Department of Labor, Bureau of Labor Statistics,
for all urban consumers within the Los
Angeles /Anaheim /Riverside metropolitan area during the
prior year. The calculation shall be made using the
month which is four (4) months prior to the month in
which the Development Agreement is approved by the City
Council (e.g., if approval occurs in June, then the
month of February is used to calculate the increase).
This fee may be expended by City in its sole and
unfettered discretion.
6.4. As a condition of the issuance of each building permit
for any use within the boundaries of the Project Area,
Developer shall pay City a development fee as described
herein (the "Development Fee "). The Development Fee
may be expended by City in its sole and unfettered
discretion. On the effective date of this Agreement,
the amount of the Development Fee shall be Twenty One
Thousand Dollars ($21,000.00) per acre of each lot on
which the building is located. The fee shall be
adjusted annually (commencing one (1) year after the
first building permit is issued within the Project Area
by any increase in the Consumer Price Index (CPI) until
all fees have been paid. The CPI increase shall be
determined by using the information provided by the
U.S. Department of labor, Bureau of Labor Statistics,
for all urban consumers within the Los
Angeles /Anaheim /Riverside metropolitan area during the
prior year. The calculation shall be made using the
month which is four (4) months prior to the month in
which the Development Agreement is approved by the City
Council (e.g., if approval occurs in June, then the
month of February is used to calculate the increase).
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6.5. As a condition of the issuance of each building permit
for any use within the boundaries of the Project Area,
Developer shall pay City a traffic mitigation fee as
described herein ( "Citywide Traffic Fee "). The
Citywide Traffic Fee may be expended by City in its
sole and unfettered discretion. On the effective date
of this Agreement, the amount of the Citywide Traffic
Fee shall be Eighteen Thousand Dollars ($18,000.00) per
acre of each lot on which the use is located.
Commencing on January 1, 2001, and annually thereafter,
the Citywide Traffic Fee shall be increased to reflect
the change in the State Highway Bid Price Index for the
twelve (12) month period that is reported in the latest
issue of the Engineering News Record that is available
on December 31 of the preceding year ( "annual
indexing "). In the event there is a decrease in the
referenced Index for any annual indexing, the Citywide
Traffic Fee shall remain at its then current amount
until such time as the next subsequent annual indexing
which results in an increase.
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
6.7. Developer agrees to pay Air Quality Fees, that are to
be calculated by City at its sole and unfettered
discretion consistent with similar projects in the City
as a condition on each Subsequent Approval within the
boundaries of the Project Area. The Air Quality Fees
may be expended by City in its sole discretion for
reduction of regional air pollution emissions and to
mitigate residual Project air quality impacts.
6.8. Developer agrees to cast affirmative ballots for the
formation of an assessment district and levying of
assessments, for the maintenance of parkway and median
landscaping, street lighting and if requested by the
City Council, parks for the provision of special
benefits conferred by same upon properties within the
Project. Developer further agrees to form one or more
property owner associations and to obligate said
associations to provide for maintenance of parkway and
median landscaping, street lighting, and if requested
by the City Council, parks in the event the
aforementioned assessment district is dissolved or
altered in any way or assessments are reduced or
limited in any way by a ballot election of property
owners, or if the assessment district is invalidated by
court action.
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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, 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.
6.10 Prior to City Council action on any Subsequent
Approval, or grading of the property, whichever occurs
first, Developer agrees to provide City an irrevocable
offer of dedication to dedicate right -of -way at no cost
to City for the future 118 bypass along the entire
length of the west side of the property, outside of the
easements for the Gabbert Channel. The right -of -way
shall be one hundred feet (1001) wide plus any
necessary slope easements to accommodate a level 100'
right -of -way and slope easements to accommodate a grade
separation crossing of the railroad tracks along the
southern boundary. Developer further agrees to
dedicate access rights from the property to the City
for the 118 bypass. City shall have final approval of
the location, legal description and use of the property
offered for dedication. City may transfer its interest
in the property after acceptance of its dedication to
any other public entity.
6.11. Developer agrees that as part of any grading of the
property the right -of -way for the future 118 bypass
shall be graded per City direction.
6.12. Developer agrees to comply with all the provisions of
the Hillside Management Ordinance (Chapter 17.38 of the
Municipal Code) of the City.
6.13. Developer agrees to pay a pro -rata share, as determined
by the City at its sole and unfettered discretion, for
the funding and construction of the improvements
identified in the Gabbert and Walnut Canyon Channels
Deficiency Study. Developer also acknowledges that
interim improvements may also be necessary to
facilitate any new use or development of the property
and Developer agrees that they shall be responsible for
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any such interim improvements as their sole
responsibility, without credit of these costs, except
as may be provided in the implementation plan for the
Gabbert and Walnut Canyon Channels Deficiency Study.
6.14. Prior to any subdivision or new use of the property,
Developer agrees to acquire and construct, at their
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.
6.15. Developer agrees to not oppose creation of a
redevelopment Project Area (as defined by applicable
State law) encompassing any part of the Property
provided that the Project Area is consistent with the
rights of Developer under this Agreement.
6.16. Developer agrees not to request any concession, waiver,
modification or reduction of any fee, regulation,
requirement, policy or standard condition for any
Subsequent Approval and further agrees to pay all fees
imposed by City for future buildings, so long as said
fees are also imposed in a similar manner on similar
projects.
6.17. Prior to the effective date of the Ordinance approving
Zone Change No. 97 -6, 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.
6.18. Developer agrees that as a condition of the City's
approval of the first Subsequent Approval for the
Property, Developer shall submit improvement plans to
improve Gabbert Road from the Union Pacific Gabbert
Road rail crossing to a point approximately one
hundred twenty -five (125) feet north of the rail
crossing to four travel lanes, two eight (8) foot
bike lanes and two ten (10) foot parkways inclusive
of sidewalks ( Gabbert Road improvements). The plans
for the Gabbert Road improvements must be approved by
the City and a surety in an amount and form
determined by the City in its sole and unfettered
discretion to guarantee this improvement shall be
provided prior to approval of the first final Map for
the Property occurring after the operative date of
this Agreement. The Gabbert Road improvements shall
be constructed prior to issuance of a building permit
for any portion of the Property that exceeds forty
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percent (40 %) of the acreage of the total of all lots
created by the recordation of the first final map for
the Property occurring after the operative date of
this Agreement In the event the Improvements
required pursuant to Section 6.21 of this Agreement
are constructed, accepted by the City and open to the
public prior to the issuance of a building permit for
any portion of the Property that exceeds forty
percent (40 %) of the acreage of the total of all lots
created by the recordation of the first final map for
the Property occurring after the operative date of
this Agreement, then the improvements required by
this Section 6.18 shall not be required to be
constructed by the Developer.
6.19. Prior to City action on the first Subsequent Approval
for the Property, Developer shall provide a traffic
study to determine if signalization of the
intersection of the Gabbert Road /Poindexter Avenue is
needed. Developer agrees that City at its sole and
unfettered discretion may condition any Subsequent
Approval of the Property to construct the traffic
signal or pay a fair share payment at the above
intersection. Construction of the signal, if
required, shall occur at the same time as the Gabbert
Road improvements in Section 6.18, above, or such
later date as determined by the City Council at its
sole and unfettered discretion.
6.20. Developer shall construct a thirty -two (32) foot
wide paved access road (paved access road) to the
Property to serve as the primary access until such
time as the Improvements referenced in Section 6.22
are constructed. At such time as the Improvements
in Section 6.21 are opened to the public, the paved
access road shall become an emergency access only
for the Property. The paved access road shall be
located generally following the existing unpaved
access road to the Property with the final location
of said paved access road to be determined by the
City at its sole and unfettered discretion. The
paved access road shall be constructed to City
Standards for an industrial street but with no
requirement for curb, gutter, or sidewalk except
curbs that may be determined necessary to provide
for positive drainage.
6.21. Prior to issuance of a building permit for any
portion of the Property that exceeds seventy percent
(70 %) of the acreage of the total of all lots
created by the recordation of the first final Map
for the Property occurring after the operative date
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of this Agreement, Developer shall cause to be
constructed a street extending north from Los
Angeles Avenue (SR 118) including an underground
crossing of the Union Pacific railroad tracks to a
point approximately six hundred (600) feet north of
said railroad tracks (Improvements) within the area
of the offer of dedication required of Developer in
Section 6.10 of this Agreement. The preliminary
improvement plans must be approved by the City and a
surety in an amount and form determined by the City
in its sole and unfettered discretion to guarantee
the Improvements shall be provided prior to approval
of the first final map for the Property occurring
after the operative date of this Agreement. Prior
to issuance of a building permit for any portion of
the Property that exceeds forty percent (40 %) of the
acreage of the total of all lots created by the
recordation of the first final map for the Property
occurring after the operative date of this
Agreement, City must approve in it sole and
unfettered discretion the final design plans and
specifications for the Improvements and a financing
plan that demonstrates the ability to fund the
Improvements. This financing plan may include at
City's sole and unfettered discretion, use of
Citywide Traffic monies.
7. City Agreements.
7.1. City shall use its best efforts to process plan
checking and related processing for the project in an
expedited manner.
7.2. City shall exempt this project from payment of the
Gabbert Road /Casey Road Area of Construction (AOC)
fees.
7.3. City agrees that upon receipt of a landowners' petition
by developer and Developer's payment of a fee as
determined necessary by City in its sole and unfettered
discretion, City shall commence proceedings to form a
Mello -Roos Community Facilities District ( "District ")
and to incur bonded indebtedness to finance all or
portions of the on site and off site public facilities,
infrastructure and services that are required by this
Agreement and Subsequent Approvals and that may be
provided pursuant to the Mello -Roos Community
Facilities Act of 1982 (the "Act "); provided, however,
the City Council, in its sole and unfettered
discretion, may abandon establishment of the District
upon the conclusion of the public hearing required by
California Government Code Section 53321 and /or deem it
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unnecessary to incur bonded indebtedness at the
conclusion of the hearing required by California
Government Code Section 53345. The formation, type of
assessment district (if City determines another type of
assessment district other than District is more
appropriate) and method and spread of assessment shall
be at the City's sole and unfettered discretion.
7.4. If requested in writing by Developer and limited to
City's legal authority, City shall proceed to acquire,
at Developer's sole cost and expense, easements or fee
title to land in which Developer does not have title or
interest in order to allow construction of public
improvements required of Developer which are outside
Developer's legal boundaries. The process shall
generally follow Government Code Section 66457 et. seq.
and shall include the obligation of Developer to enter
into an agreement with City, guarantee by cash deposits
and other security as the City may require, to pay all
City costs including but not limited to, acquisition of
the interest, attorney fees, appraisal fees,
engineering fees, and City overhead expenses of fifteen
percent (15 %) on all out -of- pocket costs and City staff
costs.
8. Supersession of Agreement by Change of Law. In the event that
any state or federal law or regulation enacted after the date
the Enabling Ordinance was adopted by the City Council
prevents or precludes compliance with any provision of the
Agreement, such provision shall be deemed modified or
suspended to comply with such state or federal law or
regulation, as reasonably determined necessary by City in its
sole and unfettered discretion.
9. Demonstration of Good Faith Compliance. In order to ascertain
compliance by the Developer with the provisions of this
Agreement, the Agreement shall be reviewed annually in
accordance with Moorpark Municipal Code chapter 15.40. of
City or any successor thereof then in effect. The failure of
City to conduct any such annual review shall not, in any
manner, constitute a breach of this Agreement by City,
diminish, impede, or abrogate the obligations of the Developer
hereunder or render this Agreement invalid or void.
10. Authorized Delays. Performance by any Party of its
obligations hereunder, other than payment of fees, and
Developer's obligations and restrictions on development as
provided for in Sections 6.18, 6.19, 6.20, and 6.21 of this
Agreement shall be excused during any period of "Excusable
Delay ", as hereinafter defined, provided that the Party
claiming the delay gives notice of the delay to the other
Parties as soon as possible after the same has been
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ascertained. For purposes hereof, Excusable Delay shall mean
delay that directly affects, and is beyond the reasonable
control of, the Party claiming the delay, including without
limitation: (a) act of God; (b) civil commotion; (c) riot; (d)
strike, picketing or other labor dispute; (e) shortage of
materials or supplies; (e) damage to work in progress by
reason of fire, flood, earthquake or other casualty; (f)
failure, delay or inability of City to provide adequate levels
of public services, facilities or infrastructure to the
Property including, by way of example only, the lack of water
to serve any portion of the Property due to drought; (g) delay
caused by a restriction imposed or mandated by a governmental
entity other than City; or (h) litigation brought by a third
party attacking the validity of this Agreement, a Project
Approval, a Subsequent Approval or any other action necessary
for development of the Property.
11. Default Provisions.
11.1. Default by Developer. The Developer shall be deemed to
have breached this Agreement if it:
(a) practices, or attempts to practice, any fraud or
deceit upon City; or
(b) willfully violates any order, ruling or decision
of any regulatory or judicial body having jurisdiction
over the Property or the Project, provided that
Developer may contest any such order, ruling or
decision by appropriate proceedings conducted in good
faith, in which event no breach of this Agreement shall
be deemed to have occurred unless and until there is a
final adjudication adverse to Developer; or
(c) fails to make any payments required under this
Agreement; or
(d) materially breaches any of the other provisions of
the Agreement and the same is not cured within the time
set forth in a written notice of violation from City to
Developer, which period of time shall not be less than
ten (10) days from the date that the notice is deemed
received, provided if Developer cannot reasonably cure
the breach within the time set forth in the notice,
Developer fails to commence to cure the breach within
such time limit and diligently effect such cure
thereafter.
11.2. Default by City. City shall be deemed in breach of
this Agreement if it:
(a) materially breaches any of the provisions of the
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Agreement and the same is not cure within the time set
forth in a written notice of violation from Developer
to City, which period shall not be less than ten (10)
days from the date the notice is deemed received,
provided if City cannot reasonably cure the breach
within the time set forth in the notice, City fails to
commence to cure the breach within such time limit and
diligently effect such cure thereafter.
11.3. Content of Notice of Violation. Every notice of
violation shall state with specificity that it is given
pursuant to this section of the Agreement, the nature
of the alleged breach, and the manner in which the
breach may be satisfactorily cured. The notice shall
be deemed given on the date that it is personally
delivered or on the third day following the day after
it is deposited in the United States mail, in
accordance with Section 20 hereof.
11.4. Remedies for Breach. The Parties acknowledge that
remedies at law, including without limitation money
damages, would be inadequate for breach of this
Agreement by any Party due to the size, nature and
scope of the Project. The Parties also acknowledge
that it would not be feasible or possible to restore
the Property to its natural condition once
implementation of the Agreement has begun. Therefore,
the Parties agree that the remedies for breach of the
Agreement shall be limited to the remedies expressly
set forth in this subsection.
The remedies for breach of the Agreement by City shall
be injunctive relief and /or specific performance.
The remedies for breach of the Agreement by the
Developer shall be injunctive relief and /or specific
performance. In addition, and notwithstanding any
other language of this Agreement, if the breach is of
Subsection 6.4 or 6.5 or 6.9 or 6.10 or 6.18 or 6.19,
or 6.20, or 6.21 of this Agreement, City shall have the
right to withhold the issuance of building permits from
the date that the notice of violation was given
pursuant to Subsection 11.3 hereof until the date that
the breach is cured as provided in the notice of
violation.
Nothing in this subsection shall be deemed to preclude
City from prosecuting a criminal action against the
Developer if it violates any City ordinance or state
statute.
SCE.1
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t
SCE.1
12. Mortgage Protection. At the same time that City gives notice
to the Developer of a breach, City shall send a copy of the
notice to each holder of record of any deed of trust on the
portion of the Property in which Developer has a legal
interest ( "Financier "), provided that the Financier has given
prior written notice of its name and mailing address to City
and the notice makes specific reference to this section. The
copies shall be sent by United States mail, registered or
certified, postage prepaid, return receipt requested, and
shall be deemed received upon the third (3rd) day after
deposit.
Each Financier that has given prior notice to City pursuant to
this section shall have the right, at its option and insofar
as the rights of City are concerned, to cure any such breach
within fifteen (15) days after the receipt of the notice from
City. If such breach cannot be cured within such time period,
the Financier shall have such additional period as may be
reasonably required to cure the same, provided that the
Financier gives notice to City of its intention to cure and
commences the cure within fifteen (15) days after receipt of
the notice from City and thereafter diligently prosecutes the
same to completion. City shall not commence legal action
against Developer by reason of Developer's breach without
allowing the Financier to cure the same as specified herein.
Notwithstanding any cure by Financier, this Agreement shall be
binding and effective against the Financier and every owner of
the Property, or part thereof, whose title thereto is acquired
by foreclosure, trustee sale or otherwise.
13. Estoppel Certificate. At any time and from time to time, any
Developer may deliver written notice to City and City may
deliver written notice to the Developer requesting that such
Party certify in writing that, to the knowledge of the
certifying Party, (i) this Agreement is in full force and
effect and a binding obligation of the Parties, (ii) this
Agreement has not been amended, or if amended, the identity of
each amendment, and (iii) the requesting Party is not in
breach of this Agreement, or if in breach, a description of
each such breach. The Party receiving such a request shall
execute and return the certificate within thirty (30) days
following receipt of the notice. City acknowledges that a
certificate may be relied upon by successors in interest to
the Developer who requested the certificate and by holders of
record of deeds of trust on the portion of the Property in
which that Developer has a legal interest.
14. Administration of Agreement. Any decision by City staff
concerning the interpretation and administration of this
Agreement and development of the Property in accordance
herewith may be appealed by the Developer to the City Council,
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000424
SCE.1
provided that any such appeal shall be filed with the City
Clerk of City within ten (10) days after the affected
Developer receives notice of the staff decision. The City
Council shall render its decision to affirm, reverse or modify
the staff decision within thirty (30) days after the appeal
was filed. The Developer shall not seek judicial review of
any staff decision without first having exhausted its remedies
pursuant to this section.
15. Amendment or Termination by Mutual Consent. In accordance
with the provisions of Ordinance No. 59 of City or any
successor thereof then in effect, this Agreement may be
amended or terminated, in whole or in part by mutual consent
of City and the Developer.
15.1. Exemption for Amendments of Project Approvals. No
amendment to a Project Approval shall require an
amendment to this Agreement and any such amendment
shall be deemed to be incorporated into this Agreement
at the time that the amendment becomes effective,
provided that the amendment is consistent with this
Agreement.
16. Indemnification. The Developer shall indemnify, defend with
counsel approved by City, and hold harmless City and its
officers, employees and agents from and against any and all
losses, liabilities, fines, penalties, costs, claims, demands,
damages, injuries or judgments arising out of, or resulting in
any way from, the Developer's performance pursuant to this
Agreement.
Developer shall indemnify, defend with counsel approved by
City, and hold harmless City and its officers, employees and
agents from and against any action or proceeding to attack,
review, set aside, void or annul this Agreement or any
provision thereof or the Project Approvals or any Subsequent
Approvals.
17. Time of Essence. Time is of the essence for each provision of
this Agreement of which time is an element.
18. Operative Date. This Agreement shall become operative on the
date the Enabling Ordinance becomes effective pursuant to
Government Code Section 36937.
19. Term. This Agreement shall remain in full force and effect
for a term of twenty (20) years commencing on its operative
date unless said term is amended or the Agreement is sooner
terminated as otherwise provided herein.
Upon expiration of the term or earlier termination of this
Agreement, the Parties shall execute any document reasonably
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SCE.1
requested by any Party to remove this Agreement from the
public records as to the Property, and every portion thereof,
to the extent permitted by applicable laws.
20. Notices. All notices and other communications given pursuant
to this Agreement shall be in writing and shall be deemed
received when personally delivered or upon the third (3rd) day
after deposit in the United States mail, registered or
certified, postage prepaid, return receipt requested, to the
Parties at the addresses set forth in Exhibit "C" attached
hereto and incorporated herein.
Any Party may, from time to time, by written notice to the
other, designate a different address which shall be
substituted for the one above specified.
21. Entire Agreement. This Agreement contains the entire
agreement between the Parties regarding the subject matter
hereof, and all prior agreements or understandings, oral or
written, are hereby merged herein. This Agreement shall not
be amended, except as expressly provided herein.
22. Waiver. No waiver of any provision of this Agreement shall
constitute a waiver of any other provision, whether or not
similar; nor shall any such waiver constitute a continuing or
subsequent waiver of the same provision. No waiver shall be
binding, unless it is executed in writing by a duly authorized
representative of the Party against whom enforcement of the
waiver is sought.
23. Severability. If any provision of this Agreement is
determined by a court of competent jurisdiction to be invalid
or unenforceable, the remainder of this Agreement shall be
effective to the extent the remaining provisions are not
rendered impractical to perform, taking into consideration the
purposes of this Agreement.
24. Relationship of the Parties. Each Party acknowledges that, in
entering into and performing under this Agreement, it is
acting as an independent entity and not as an agent of the
other Party in any respect. Nothing contained herein or in
any document executed in connection herewith shall be
construed as creating the relationship of partners, joint
ventures or any other association of any kind or nature
between City and Developer, jointly or severally.
25. No Third Party Beneficiaries. This Agreement is made and
entered into for the sole benefit of the Parties and their
successors in interest. No other person shall have any right
of action based upon any provision of this Agreement.
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SCE. 1
26. Recordation of Agreement and Amendments. This Agreement and
any amendment thereof shall be recorded with the County
Recorder of the County of Ventura by the City Clerk of City
within the period required by Ordinance No. 59 of City or any
successor thereof then in effect.
27. Cooperation Between City and Developers. City and each
Developer shall execute and deliver to the other all such
other and further instruments and documents as may be
necessary to carry out the purposes of this Agreement.
28. Rules of Construction. The captions and headings of the
various sections and subsections of this Agreement are for
convenience of reference only, and they shall not constitute
a part of this Agreement for any other purpose or affect
interpretation of the Agreement. Should any provision of this
Agreement be found to be in conflict with any provision of the
Project Approvals or the Subsequent Approvals, the provision
of this Agreement shall prevail.
29. Joint Preparation. This Agreement shall be deemed to have
been prepared jointly and equally by the Parties, and it shall
not be construed against any Party on the ground that the
Party prepared the Agreement or caused it to be prepared.
30. Governing Law and Venue. This Agreement is made, entered
into, and executed in the County of Ventura, California, and
the laws of the State of California shall govern its
interpretation and enforcement. Any action, suit or
proceeding related to, or arising from, this Agreement shall
be filed in the appropriate court having jurisdiction in the
County of Ventura.
31. Attorneys' fees under this section shall include attorneys'
fees on any appeal and any post - judgment proceedings to
enforce the judgment. This provision is separate and several
and shall survive the merger of this Agreement into any
judgment on this Agreement.
32. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but
all of which constitute one and the same instrument.
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00042?
IN WITNESS WHEREOF, Southern California Edison Company and
City of Moorpark have each executed this Development Agreement on
the date first above written.
CITY OF MOORPARK
By:
Patrick Hunter
Mayor
ATTEST
Deborah S. Traffenstedt
City Clerk
Southern California
Edison Company
By:
Diane Weinmueller
Regional Manager
SCE.1
EXHIBIT A
LEGAL DESCRIPTION
[INSERT], identified as Assessor's Parcel Nos. 500 -0- 340 -235
SCE.1
000429
EXHIBIT B
COVENANT RUNNING WITH THE LAND
THIS COVENANT is made this day of , by and
between the A -B Properties and Southern California Edison
Company (Covenantors ") and the City of Moorpark
( "Covenantee ").
WHEREAS, Covenantor is the owner of certain real property
(500.0.340.22 and 23) in the City of Moorpark, County of
Ventura, more particularly described in Exhibit "A" attached
hereto and made a part hereof ( "the Covenantor Property "); and
WHEREAS, Covenantee is the owner of certain real property at
799 Moorpark Avenue, in the City of Moorpark, County of
Ventura, more particularly described in Exhibit "B" attached
hereto and made a part hereof ( "the Covenantor Property "); and
WHEREAS, Covenantee is willing to rezone the Covenantor
Property from Agricultural Exclusive (AE) to Limited
Industrial (M -2) but for the concern that some of the uses
that are presently, or may subsequently be, allowed by right
or permit in the CPD zone are, or may be, inappropriate uses
for the Covenantor Property because of its particular
location;
WHEREAS, Covenantor seeks to have the Covenantors Property
rezoned from Agricultural Exclusive (AE) to Limited Industrial
(M -2) but acknowledges that some of the uses that are
presently, or may subsequently be, allowed by right or permit
in the M -2 zone are, or may be, inappropriate uses for the
Covenantor Property because of its particular location; and
NOW, THEREFORE, in consideration of the mutual promises of the
parties to this Covenant, each to the other as Covenantor and
Covenantee, and expressly for the benefit of, and to bind,
their successors in interest, the parties agree as follows:
B -1
SCE.1
000430
1. Covenantee agrees to adopt an ordinance rezoning the
Covenantor Property from Agricultural Exclusive (AE) to
Limited Industrial (M -2);
2. Covenantor agrees that, commencing on the effective date
of the ordinance rezoning the Covenantor Property from
Agricultural Exclusive (AE) to Limited Industrial (M -2) .
Subject to the following restrictions in addition, and
superseding the M -2 regulations.
A. Primary uses, except agricultural crops, shall be
conducted within completely enclosed buildings and metal faced
buildings shall not be allowed as principal buildings. Outside
storage and operations shall not be allowed as primary uses,
only accessory outside storage shall be allowed, subject to
the same limitations as M -1 (confined to the area to the rear
of the principal building or the rear two - thirds of the
property, whichever is more restrictive, and screened from
view from any property line by appropriate walls, fencing,
earth mounds, or landscaping).
B. The follc
• Manufacturing
• Manufacturing
and extruding
• Manufacturing
• Manufacturing
• Manufacturing
• Mini - storage
)wing uses shall not
- Batteries
- Metal industries,
- Rubber and plash
- Tire retreading
- Cement, concrete
• Recreational vehicle storage
• Signs - Freestanding off -site advertising signs
• Transportation services - Truck storage, overnight
be allowed as a primary use:
primary; Rolling, drawing,
cs products
nd recapping
and plaster products
3. Covenantor and Covenantee agree that, commencing on the
effective date of the ordinance rezoning the Covenantor
Property from Agricultural Exclusive (AE) to Limited
Industrial (M -2), all uses specified in Paragraph 2.B. hereof
that are presently allowed or that at any time in the future
may be allowed in the M -2 (Limited Industrial) zone, whether
by right or by permit, shall be deemed transferred from the
Covenantors Property to the Covenantee Property for the
benefit of the Covenantee Property.
4. Covenantors and Covenantee agree that from time to time
Covenantee may substitute any other property owned by
Covenantee on the date of the substitution for the Covenantee
Property ( "the Substitute Covenantee Property ") without the
consent of Covenantor by the recordation of an amendment to
000el�:.
this Covenant. The amendment shall describe the Substitute
Covenantee Property and shall provide that, commencing on the
date of recordation of the amendment, all uses not specified
in Paragraph 2 hereof that are presently allowed, or that at
any time in the future may be allowed, in the M -2 (Limited
Industrial) zone, whether by right or by permit, shall be
deemed transferred from that Covenantor Property to the
Substitute Covenantee Property for the benefit of the
Substitute Covenantee Property.
5. All of the covenants, restrictions, and limitations set
forth herein shall run with the Covenantee Property and the
Covenantor Property and shall benefit and bind all persons,
whether natural or legal, having or acquiring any right,
title, or interest in any portion of the Covenantee Property
or the Covenantor Property. Each grantee of a conveyance or
purchaser under a contract of sale or similar instrument that
covers any right, title, or interest in or to any portion of
the Covenantee Property or the Covenantor Property, by
accepting a deed or a contract of sale or similar instrument,
accepts the conveyance or sale subject to, and agrees to be
bound and benefited by, all of the covenants, restrictions and
limitations set forth herein.
6. Nothing in this Covenant shall be construed so as to
limit the right of Covenantee to rezone, or the right of
Covenantor to petition Covenantee to rezone, the Covenantor
Property in the future.
7. This Covenant shall remain in full force and effect until
such time as an ordinance rezoning the Covenantor Property
from Agricultural Exclusive (AE) to Limited Industrial (M -2)
to another zone designation becomes effective.
8. This Covenant may be enforced by proceedings at law or in
equity against any person who violates or attempts to violate
a covenant, restriction or limitation hereof. The prevailing
party shall be entitled to recover such attorneys' fees and
court costs as it reasonably incurs in such a proceeding.
9. In the event any provision of this Covenant is found to
be invalid or unenforceable in any proceeding at law or in
equity, such finding shall not affect the other provisions of
this Covenant, which shall remain in full force and effect.
B -3
0004 ,32
10. Either party may record in the office of the Recorder of
Ventura County this Covenant or any amendment hereto specified
in Paragraph 4 hereof without the consent of the other party.
IN WITNESS WHEREOF, Covenantor and Covenantee have executed this
Covenant on the date first above written
COVENANTORS
COVENANTEE
SOUTHERN CALIFORNIA CITY OF MOORPARK
EDISON COMPANY
B -4
600433
EXHIBIT C
To City: City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
Attn. City Manager
To Developer: Southern California Edison Company
100 Long Beach Blvd, Suite 1004
Long Beach, CA 90802
Attn. Regional Manager
C -1
000434