HomeMy WebLinkAboutAGENDA REPORT 2002 0717 CC REG ITEM 11HITEM - 1 1! H
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MOORPARK CITY COUNCIL
AGENDA REPORT - r=Q�
TO: Honorable City Council
FROM: Barry K. Hogan, Community Development Direct4t�alyst
Prepared By: Laura Stringer, Senior Manageme
DATE: July 1, 2002 (CC Meeting of 7/17/02)
SUBJECT: Consider an Agreement Regarding Acquisition of Property
between Pardee Homes and the City of Moorpark to Acquire
Certain Real Property for Public Street Purposes.
(Tentative Tract Map No. 5045)
BACKGROUND
On August 2, 2000, the City Council adopted Resolution No. 2000-
1767 approving Tentative Tract No. 5045; a subdivision of 445 acres
(within Specific Plan No. 2) located southerly of Broadway and
easterly of Walnut Canyon Road. The approved tentative map permits
up to 460 single family residences and provides for one 8.5 acre
parcel for up to 102 attached residential units, along with other
miscellaneous lots required by Specific Plan No. 2. Development
Agreement No. 98 -01 was approved for the project on October 6,
1999. The Development Agreement and Tentative Tract No. 5045
require the developer to comply with numerous conditions, including
those related to public street improvements. The attached Agreement
Regarding Acquisition of Property will allow the City to proceed
with necessary acquisition of certain right -of -way needed for
street improvements required as conditions of the Development
Agreement and Tentative Tract Map.
DISCUSSION
Tentative Tract No. 5045 Community Development Condition No. 64 and
City Engineer Condition No. 139 and Development Agreement
subsection 6.28 require improvements to the intersection of Charles
Street and Spring Road, including the acquisition of any right -of-
way necessary for the improvements. Pardee Homes, as developer of
Tract No. 5045, has been unable to secure the right -of -way needed
for the intersection improvements at the southwest corner of
*���
Honorable City Council
Meeting of July 17, 2002
Page No. 2
Charles Street and Spring Road. The property required for the
improvements is currently owned by Mr. Favela. Pardee has indicated
that acquisition of only the portion of Mr. Favela's property
required for intersection improvements would leave an unusable
remnant parcel, thereby necessitating acquisition of the entire
parcel. Pardee Homes has requested that the City use its best
efforts to obtain Mr. Favela's parcel, at the developer's cost, as
required for construction of the intersection improvements. Section
66462.5 of the Subdivision Map Act provides the local agency with
the authority to acquire by negotiation, or to commence
proceedings, pursuant to Title 7 (commencing with Section 1230.010)
of Part 3 of the Code of Civil Procedure, to acquire an interest in
the land which will permit required off -site improvements to be
made.
The attached Agreement has been approved by the City Attorney
will allow the City Attorney to commence proceedings
acquisition of right -of -way at the
cost. Pardee Homes has submitted an
provisions in the agreement call
payment of all expenses and cost
acquisition process.
STAFF RECOMMENDATION
developer's sole expense
initial deposit of $5,000,
for additional deposits
s at various stages of
It
for
and
and
for
the
Approve Agreement Regarding Acquisition of Property between Pardee
Homes and the City of Moorpark.
ATTACHMENTS:
1. Agreement Regarding Acquisition of Property
2. Tentative Tract No. 5045, Conditions CDD 64 and CED 139
3. Development Agreement 98 -01, Subsection 6.28
S: \Community Development \T T M \5045 \Staff Reports \cc 020717 agreement row acquis.doc
AGREEMENT REGARDING ACQUISITION OF PROPERTY
This Agreement is made and entered into by and between the City of Moorpark ( "City "), a
general law city, and Pardee Homes, a California corporation ( "Developer ").
WITNESSETH:
The parties hereto do agree as follows:
Section I Recitals. This Agreement is entered into with respect to the following facts:
A. Developer is the current owner in fee of (or has an option to purchase) certain real
property which is located in the City, and is included within the boundaries of
Tract 5045 and is presently developing the property (the "Project "); and
B. The City Council of the City approved the Project subject to certain conditions of
approval (collectively "Conditions "); and
C. The Project contemplates and Conditions 64 and 139 require the improvement of
the intersection of Charles Street and Spring Road in the City of Moorpark (the
"Intersection Improvement "); and
D. The Project is also governed by a Development Agreement, subsection 6.28 of
which also requires the Intersection Improvement, including the acquisition of any
right -of -way necessary for such improvement; and
E. Notwithstanding significant efforts, Developer has been unable to secure right -of-
way needed for the Intersection Improvement, located at the southwest corner of
Charles Street and Spring Road and owned by Favela ( "Owner "); and
F. Acquisition of only the right -of -way needed from Owner will leave Owner with an
unusable remnant parcel, thereby necessitating acquisition of Owner's entire parcel
to complete the Intersection Improvement; and
G. Developer has requested that City use its best efforts to obtain the Owner's parcel
for purposes of constructing the Intersection Improvement ( "Right -of- Way "), at
Developer's sole expense, and
H. The City Council of City has determined that the public interest, convenience and
necessity require the execution and implementation of this Agreement, which sets
forth the parties' respective obligations and rights in connection with acquisition of
the Right -of -Way.
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ATTACHMENT /_
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Section 2 Acquisition by City.
A. Commencement of Proceedings. Upon receipt of the initial deposit required by
Section 3 herein, City shall commence proceedings for acquisition of the Right -of-
Way, including, but not limited to, proceedings pursuant to Code of Civil
Procedure section 1230.010 et sec ., ( "Eminent Domain Law "). "Commence" shall
mean extend an offer for the Right -of -Way to the Owner pursuant to government
code section 7267.2. Developer has provided City with an appraisal of the Right -
of -Way, and Developer understands and agrees that City shall utilize that appraisal
for acquisition purposes. Developer shall have the right, at any time, to terminate
this Agreement upon written notice to City. Upon its receipt of such termination
notice, City shall terminate the proceedings for acquisition of the Right -of -Way
and shall refund any unused deposit money to Developer; provided, however, that
Developer shall be liable for any and all further damages or costs required to be
paid for abandoning the acquisition.
B. Status Reports to Developer. City shall be responsible to continuously advise
Developer of the status of all proceedings for acquisition undertaken by City
pursuant to the provisions of this Agreement.
C. Copies of Material to Developer. City shall provide Developer with copies of all
pleadings filed if litigation is required to acquire the Right -of -Way and all other
relevant documents, and to the extent reasonably feasible, City shall give
Developer at least three (3) days advance written notice of the form and substance
of proposed material communications with the Owner of the Right -of -Way to be
acquired pursuant to this Agreement, all of which Developer shall keep
confidential to the extent permitted by law.
D. Settlement Offers. The parties hereto agree and understand that all offers of
settlement made voluntarily or as may be required by law, shall be so made only
with the prior written consent of Developer. Developer shall promptly, upon
receipt of a City request for settlement authority, act upon such request and either
approve the same or refuse such approval as it deems appropriate, based upon the
appraisals heretofore obtained by Developer for the purpose of the eminent domain
proceedings. The parties hereto understand that as a part of the eminent domain
process, the City is obligated, at the time of mandatory settlement conferences, to
make statutory offers of settlement as described in the Eminent Domain Law. All
such offers shall be subject to prior written approval by Developer as set forth
above, provided that if, for any reason, the offers made at such mandatory
settlement conferences, are subsequently found by a court to be unreasonable
within the meaning of the provisions of the Eminent Domain Law, Developer, in
addition to all of its other obligations pursuant to this Agreement, shall reimburse
City for all court awarded litigation expenses paid by the City to Owner promptly.
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E. Construction Activities. Developer agrees not to commence any grading or other
construction activities within any of the Right -of -Way before the Right -of -Way has
been acquired or an order for prejudgment possession therefor is obtained.
F. Compliance with Laws. The parties agree that City shall not be obligated to
commence litigation pursuant to the Eminent Domain Law, unless the City Council
of City is able to make the findings required by the Eminent Domain Law for the
adoption of a Resolution of Necessity and further, the City Council, in its sole
discretion, decides to adopt a Resolution of Necessity.
Section 3 Payment by Developer.
A. Cost Reimbursement. Developer shall reimburse the City for all costs incurred by
the City in connection with the acquisition of the Right -of -Way by the City,
including but not limited to, direct and indirect administrative costs, acquisition
costs, attorneys' fees, and services of experts, such as appraisers ( "Costs "). Costs
include direct costs for City Staff at then current rates. Developer understands
that City adds fifteen percent (15 %) to all contract services provided, including
City Attorney, City Engineer and appraisers, to cover administration charges and
Developer agrees to pay for such administrative charges, which are included within
"Costs ". Developer shall be liable for such Costs whether City acquires the Right -
of -Way through a negotiated transaction, or through a settlement or judgment in
an eminent domain proceeding. Further, Developer shall also be liable for such
Costs actually incurred by City to date in the event that the City Council does not
adopt a Resolution of Necessity, or, if an eminent domain action is commenced,
the action is abandoned at the direction of Developer or due to Developer's failure
to reimburse the City as set forth herein, or if it is ultimately adjudged that the City
is not entitled to the Right -of -Way.
B. Deposit. Developer has made an initial deposit of five thousand dollars
($5,000.00) to the City. Prior to consideration of a resolution of necessity by the
City Council of City pursuant to Section 4 herein, Developer shall make a further
deposit of forty -five thousand dollars ($45,000) which, when added to the five
thousand dollars previously deposited by Developer, will be applied by the City
toward the Costs ( "Deposit "). In addition to the Deposit, the Developer shall
provide City with an amount sufficient to make a deposit with the Ventura County
Superior Court for the purpose of obtaining an order of prejudgment possession
with respect to the Right -of -Way, should Developer require such an order. The
amount of the Deposit, including the amount required for the making of the
deposit in Court shall be made with the City prior to the conduct of a public
hearing by the City Council to consider the adoption of a Resolution of Necessity
pursuant to the Eminent Domain Law. Upon termination of this Agreement, City
shall refund any unused deposit money to Developer within 90 days, without
interest.
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C. Expenditure of Deposit. City may deduct from the Deposit such sums as are
necessary to reimburse it for Costs incurred in the acquisition process. City shall
give written notice to Developer of all costs so reimbursed within 30 days after
such reimbursement.
D. Replenishment of Deposit. Upon written request of City, Developer shall,
periodically, replenish the Deposit so as to keep the same at a minimum balance of
fifteen thousand dollars ($15,000.00) during the term of this Agreement.
Developer shall pay to City additional funds, from time to time, as requested by
City to maintain the Deposit at the minimum level.
E. Additional Deposit. In the reasonable discretion of the City Manager, at any time
during the acquisition process, if the City Manager deems it appropriate, the City
Manager may require a greater sum than amount of the Deposit when such is
reasonably required as a part of the acquisition proceeding.
F. Accounting for Costs. The City shall account for all Costs and provide Developer
with status reports and statements periodically, not less often than once every three
months, commencing after the Effective Date of this Agreement relating to the
acquisition process.
Section 4 Compliance with Eminent Domain Procedures. The parties hereto acknowledge
that notwithstanding any provision of this Agreement to the contrary, City in exercising its power
of eminent domain is required to do so in strict accordance with the provisions of the eminent
domain law of the State of California (Section 1230.010 et seq., Code of Civil Procedure)
including, but not limited to, the conduct of the necessary hearing and being able, based upon
competent evidence presented thereat, to make the findings required as a condition precedent to
the adoption of a Resolution of Necessity authorizing the formal commencement of eminent
domain proceedings. The parties acknowledge that the City Council of City will act upon such
evidence as is presented to it at the said hearing and if the City Council is able to make the
findings required for the adoption of a Resolution of Necessity based upon the evidence so
presented and does in fact adopt such a resolution in the exercise of its discretion, that thereafter
the City will prosecute an eminent domain action in the time and manner contemplated pursuant
to this Agreement.
Section 5 Defense and Indemnity. Developer agrees to hold harmless, defend (with counsel
selected by City) and indemnify City, its employees, agents and assigns, from and against any and
all claims arising out of Developer's breach of this Agreement or Developer's negligent or wilfull
conduct. In the event that City is required to defend itself against any such claim, Developer shall
maintain an adequate deposit to cover the costs of such defense, as contemplated by section 3.13
herein
Section 6 Entire Agreement. This Agreement constitutes the entire understanding between
the parties hereto with respect to the acquisition of the Right -of -Way by the City, superseding all
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negotiations, prior discussions, and preliminary agreements or understandings, whether oral or
written.
Section 7 Amendment. This Agreement may not be amended except in writing by the parties
hereto or their successors or assigns.
Section 8 Applicable Law. The terms of this Agreement shall be construed in accordance
with California law and shall not be construed for or against either party by reason of the
authorship of this Agreement. The section headings are for purposes of convenience only and
shall not be construed to limit or extend the meaning of this Agreement.
Section 9 Notices. All notices with respect to this Agreement, or concerning matters arising
out of this Agreement, shall be in writing and shall be given by personal service, or by deposit of
the same in the custody of the United States Postal Service or its lawful successor, as registered
mail, postage prepaid, return receipt requested, addressed to the respective parties as follows:
Pardee Homes
Attn: James C. Bizzelle, III
1320 Flynn Road, Suite 100
Camarillo, California 93012
City of Moorpark
799 Moorpark Avenue
Moorpark, California 93021
Attn: Steven Kueny, City Manager
Notices shall be deemed, for all purposes, to have been given on the date of personal service, or
three (3) consecutive calendar days following deposit of the same in the custody of the United
States Postal Services.
Either party may change its address for service hereunder by serving written notice on the other in
the manner provided herein. Notices shall be deemed given on the date of personal service or two
(2) consecutive calendar days following deposit of the same in the custody of the Postal service.
Section 10 Binding Effect. The provisions of this Agreement shall be binding upon the Parties
hereto and their respective successors in interest.
Section 11 Section Headings. The section headings contained in this Agreement are for
convenience and identification only and shall not be deemed to limit or define the contents of the
sections to which they relate.
Section 12 No Presumption Re: Drafter. The Parties acknowledge and agree that the terms
and provisions of this Agreement have been negotiated and discussed between the Parties and
their attorneys, and this Agreement reflects their mutual agreement regarding the same. Because
of the nature of such negotiations and discussions, it would be inappropriate to deem any party to
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be the drafter of this Agreement, and therefore no presumption for or against validity or as to any
interpretation hereof, based upon the identity of the drafter shall be applicable in interpreting or
enforcing this Agreement.
Section 13 Assistance of Counsel. Each party to this Agreement warrants to each other party,
as follows:
(1) That each party either had the assistance of counsel or had counsel available to it,
in the negotiation for, and execution of, this Agreement, and all related documents,
and
(2) That each party has lawfully authorized the execution of this Agreement.
Section 14 Severability. This Agreement shall not be deemed severable. If any provision or
part hereof is judicially declared invalid, this Agreement shall be deemed terminated and be of no
further effect. In the event of such termination pursuant to this Section, City shall be entitled to
reimbursement from Developer for all Costs incurred, including, but not limited to sums required
to be paid by City to parties named in the Complaint filed to acquire the Right -of -Way pursuant to
a judicial order issued before or after the effective date of the termination.
Section 15 Effective Date. The effective date of this Agreement shall be March 15, 2002.
IN WITNESS WHEREOF, the parties have duly executed this Agreement.
ATTEST:
City Clerk
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CITY OF MOORPARK
Patrick Hunter, Mayor
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PARDEE HOMES
By: r `
fame C. Bizzelle, III
Director of Community Development
Resolution No. 2000 -1767
Page 34
plan check and inspection plus City administrative
costs.
CDD -53. if determined necessary at City's sole discretion.,
Developer shall at its sole cost and expense construct
a solid block, wall to replace the existing block
wall /wrought ;ron fence along the Spring Road and
Charles Street frontages of the residential project
located at the southeast corner of Spring Road and
Charj.es Street. Developer shall at its sole cost and
expense:
a. Design the wall improvements;
b. Prepare final design, plans and specifications;
C. Submit the plans and specifications to City for
approval and plan check; and
d. Pay City for inspection of the construction
including city administrative costs.
CDD -64. Off -Site right -of -way: Developer shall irrevocably
offer to dedicate to City:
a. That portion of the project area fronting on Los
Angeles Avenue Needed by City for construction
and related slope and construction easements for
City funded street improvements on Los Angeles
Avenue east of Spring Road;
b. Any property adjacent to the extension of Spring
Road between "C" Street and walnut Canyon Road
needed for ultimate buildout of Spring Road not
required to be constructed by Developer as part
of the project.
C. Developer shall acquire at its sole cost and
expense the property needed to improve the
intersection of Charles Street and Spring Road
including the vacant properties at the northwest
and southwest corners of said intersection. Any
property acquired in excess of that needed for
actual travel or bike lanes or sidewalk shall be
landscaped, and /or otherwise improved in a manner
determined by City at its sole discretion and at
the Developer's sole cost and expense including a
block wall at the property line.
ATTACHMENT Z
CX -; :,.�1 ", g"')
Resolution No. 2000 -1767
Page 35
CDD -65. "C" Street Fxtensicn: Developer shall at -ts sole cost
and expense irrevocably offer to dedicate to City the
right -of -way for an exter.s;cn of Street: from the
termi nUs c:` the "C" improvements require:: in the
Specific Plan and subsequent approvals to the eastern
ooundary of the project. At City's sole option,
Developer shall provide a surety in a form and amount
approved by City at its sole discretion to guarantee
the construction cf that portion o. "C" Street
described above.
CDD -66. Trail Construction: Developer at its sole cost and
expense shall construct the public trail system
identified in the Specific Plan, including inspection
and City administrative costs. Developer shall also at
its sole cost and expense prepare a design, plans, and
specifications for submittal to City. City shall
approve design and plans and specifications at its
sole discretion. The required improvements shall also
include construction of equestrian crossings at or
near street intersections as determined necessary by
City at its sole discretion. Developer shall at its
sole cost and expense provide to City a cash deposit
in the amount of one hundred fifty thousand dollars
($150,000.00) to fund the maintenance of the trail
system. Payment shall be made prior to occupancy of
the five hundredth (500th) residential unit.
CDD -67. Transportation /Circulation Measure. Prior to occupancy
of the first residential unit in the project area, the
Developer shall pay to the City one hundred twenty -
five thousand dollars ($125,000.00) to satisfy the
Final EIR Transportation /Circulation Mitigation
Measure 2. and for Develope-r's fair s:)are contribut_on
at the intersection of New Los Angeles Avenue and
Tierra Rejada Road.
CITY ENGINEER CONDITIONS PRIOR TO THE FINAL MAP APPROVAL THE
FOLLOWING CONDITIONS SHALL BE SATISFIED -:
CED -1. All residential areas to be commonly maintained by a
Homeowne-s' Association, as determined by the City,
shall be designated as separate lettered lots on each
phase of the subdivision map.
CED -2. Grading: The subdivider shall submit to the City of
Moorpark for review and approval, a rough grading
.� �..,4.
Resolution No. 2000 -1767
Page 69
clear sidewalk width must be provided around the
obstruction. Cabinets shall utilize screen
planting, where appropriate. All screen planting
is to be approved by :.he Public Works, Community
Development and City Engineering Departments.
CED -139. Other Fees and Improvement Design Requirements: Prior
to recordation of the Final MaD, the Developer shall
pay to the City the Los Angeles Avenue Area of
Contribution (ACC) fee. The AOC fee shall be the
dollar amount in effect at the time of issuance of the
building permit for each of the residential units and
institutional uses.
a. Developer at its sole cost and expense shall
construct all public bicycle and equestrian trail
systems identified in Specific Plan No. 2. Costs
shall include but not be limited to, cost of
construction, amenities, landscaping and
inspection and City administrative costs.
Developer shall also at its sole cost and expense
prepare a design, and plans, and specifications
for submittal to City. City shall approve design
and plans anti specifications at its sole
discretion. 7"he required improvements shall also
include construction_ of equestrian crossings at.
or near street intersections as determined
necessary by the City at its sole discretion.
Developer shall at its sole cost and expense
provide to City a cash deposit in the amount of
One Hundred and Fifty Thousand Dollars
($150,000.00) to fund the maintenance of the
trail system. Payment shall be made prior to
occupancy of the five hundredth (500`--')
residential unit.
b. Developer shall at its sole cost and expense
irrevocably offer to dedicate to City the right
of way for an extension of "C" Street from -,he
terminus of the "C" Street improvements required
in the Specific Plan and Subsequent Approvals to
the eastern boundary of the Project. At City's
sole option, Developer shall provide a surety in
a form and amount approved by City at its sole
discretion to guarantee the construction of that
portion of "C" street described above.
�,` •.. �.: a �..:. �. �.�
Resolution. No. 2000 -1767
Page 70
c. Developer shall acquire at its sole cost and
expense the property needed to improve the
intersection of Charles Street and Spring Road
including the vacant properties at the northwest
and southwest corners of said intersection. Any
property acquired in excess of that needed for
the actual travel or bike lanes or sidewalk shall
be landscaped, and /or otherwise improved in a
manner determined by the City at its sole
discretion and the Developer's sole cost and
expense including a block wall at the property
line. Properties and improvements shall be
nai-itained by '.he Homeowners' Association, or
Maintenance District as determined by the City
Council prior to Final Map approval.
d. Developer shall at its sole cost and expense
irrevocably offer to dedicate to City a) that
portion of the Project area fronting on Los
Angeles Avenue (old) needed by the City for
construction and related slope construction
easements for City funded street improvements on
Los Angeles Avenue; and b) any property adjacent
to the cxtensicn of Spring Road between "C"
Street and Walnut Canyon. Road needed for ultimate
build out of Spring Road not required to be
constructed by Developer as part of the Project.
e. Future rights -of -way for State Route 118 and
State Route 23, as shown on the Specific Plan
Land Use Map, and the Tentative Tract Map, shall
be irrevocably offered for dedication to the City
in a form approved by the City Attorney.
f. Developer shall at its sole cost and expense to
install traffic signals at any intersection
within the Project area and at off -site locations
as determined by the City at its sole discretion
including but not limited to Charles
Street /Spring Rcad, "C" Street /Spring Road, "C"
Street /Unnamed loop street ( "A" Street), Spring
Road /Walnut Canyon Road, and modification to High
Street /Spring Road. Final design, plans and
specifications shall be as approved by the City
Council and shall include an interconnect system
for all required traffic signals. Developer shall
. ,.. .,,-
5.27. Developer shall irrevocably offer to dedicate to City
a) that portion of the Project area fronting cn r CS
Angeles Avenue needed by City for construction and
related slope and construction easements for City
funded street improvements on Los Angeles Avenue; and
b) any property adjacent to the extension of Spring
Road between "C" Street and Walnut Canyon Road needed
for ultimate build out of Spring Road not required
-be constructed by Developer as part of the Project.
6.28. Developer shall acquire at its sole cost and °xcen =e
the property needed to improve the intersec__�n c=
Charles Street and Spring Road including the %acan_
properties at the northwest and southwest corners
said intersection. Any property acquired in excess
that needed for actual travel or bike lanes cr
sidewalk shall be landscaped, and /or cthe else
improved in a manner determined by City at its sole
discretion and at Developer's sole cost and expense
including a block wall at the property line.
6.29. Developer shall at its sole cost and expense
irrevocably offer to dedicate to City the right of way,.
for an extension of "C" Street from the terminus of
the "C" Street improvements required in the Specific
Plan and Subsequent Approvals to the eastern boundary
of the Project. At City's sole option, Developer
shall provide a surety in a form and amount apprc ed
by City at its sole discretion to guarantee t -e
construction of that portion of "C" Street descr_ ^ed
above.
6.30. Developer at its sole cost and expense shall construct
the public trail system identified in the Specific
Plan, including inspection and City administrate
costs. Developer shall also at its sole cost and
expense prepare a design, and plans, and
specifications for submittal to City. City shall
approve design and plans and specifications at i.--s
sole discretion. The required improvements shall also
include construction of equestrian crossings at or
near street intersections as determined necessary by
City at its sole discretion. Developer shall at its
sole cost and expense provide to City a cash deposit
in the amount of One Hundred Fifty Thousand Dollars
($150,000.00) to fund the maintenance of the trail
system. Payment shall be made prior to occupancy of
the five hundredth (500`*) residential unit.
6.31. Developer shall at its sole cost and expense
irrevocably offer to dedicate Planning Area 17 to
City.
ATTACHMENT 3_