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HomeMy WebLinkAboutAGENDA REPORT 2003 0319 CC REG ITEM 09Ci MOORPARK CITY COUNCIL`re -M- AGENDA REPORT TO: Honorable City Council FROM: Steven Kueny, City Manager Prepared by: Barry K. Hogan Community Development Director DATE: March 13, 2003 (CC Meeting of 3/19/03) SUBJECT: Consider Approval of Second Amendment to Settlement Agreement Regarding the Moorpark Country Club Estates RPD 1994 -01 - Toll Brothers BACKGROUND At the August 21, 2002 City Council meeting, an Ad -Hoc Committee of Mayor Hunter and Councilmember Millhouse was appointed to work with staff and the applicant to resolve the outstanding issues relative to the development of the project. DISCUSSION The City representatives and the applicant have met on several occasions, resulting in the attached Second Amendment to the Settlement Agreement. The Second Amendment addresses all of the remaining issues for Toll and City and, if adopted, would allow Toll to continue development of its project to completion and meet all requirements of the City. With the adoption of the Second Amendment modification to the RPD and Tentative Tract Map would be necessary. A report regarding the Modification is on this same Council agenda. STAFF RECOMMENDATION Approve the Second Amendment to the Settlement Agreement and authorize the Mayor to sign the Agreement subject to the final language approval of the City Attorney and City Manager. Attachment: Proposed Second Amendment to the Settlement Agreement S: \Community Development \DEV PMTS \R P D \1994 -01 Toll \Agenda Reports \CC030219 Agenda Report - Toll Second Amend.doc 000.34 DRAFT SECOND AMENDMENT TO SETTLEMENT AGREEMENT This Second Amendment to Settlement Agreement (Second Amendment) is made and entered into as of the day of 2003 by and among the CITY OF MOORPARK, a general law city (City) and TOLL CA GP CORP., a California corporation, and TOLL CA, L.P., a California limited partnership (collectively Toll), with reference to the following facts and circumstances. City and Toll may hereinafter be referred to individually as "Party" and collectively as "Parties." RECITALS A. On June 20, 2001, City and Toll executed that certain Settlement Agreement pertaining to conditions of approval for Vesting Tentative Tract 4928 within the City of Moorpark. B. On August 1, 2002, the Parties executed that certain First Amendment to the Settlement Agreement pertaining to certain conditions of approval for Vesting Tract Map 4928 (Tract 4928), Residential Planned Development (RPD) Permit No. 94 -1, and Conditional Use Permit (CUP) No. 94 -1 within the City of Moorpark. C. City Resolution No. 96 -1197 conditionally approved Tract 4928, RPD Permit No. 94 -1, and CUP No. 94 -1 with specific conditions of approval requiring that prior to occupancy of the first residential unit of Tract 4928 or the first golf course facility, whichever occurs first, Toll shall improve Walnut Canyon Road, Grimes Canyon Road, the intersection of "C" Street (Championship Drive) and Walnut Canyon Road, the intersection of "C" Street (Championship Drive) and Grimes Canyon Road and the intersection of Grimes Canyon Road and Highway 118 (Los Angeles Avenue). D. Toll is in the process of satisfying conditions of approval for Tract 4928, RPD Permit No. 94 -1, and CUP No. 94 -1 and has requested postponement of the construction of certain public improvements required by the conditions of approval. 1 0001 3S DRAFT E. On August 21, 2001, the Moorpark City Council adopted Resolution No. 2001 -1875 approving Minor Modification No. 3 to CUP No. 94 -1. F. Toll and City are parties to a certain Development Agreement dated April 18, 1996. G. Disputes have arisen between the Parties under the Settlement Agreement and First Amendment pertaining to timely completion of conditions of approval. H. City has approved Toll's revised equestrian center plan dated I. Caltrans has approved Plan No. 701 -1767 for the improvements of Walnut Canyon Road (SR 23) to be constructed by Toll at its sole expense. IN CONSIDERATION of the foregoing and the provisions set forth herein, and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties to this Second Amendment agree as follows: 1. Paragraph 4. of the First Amendment to the Settlement Agreement is hereby rescinded. 2. The date in the last sentence of Paragraph 5. of the First Amendment to the Settlement Agreement is hereby modified from October 1, 2002, to June 30, 2003. In the event the requirements of this modified Paragraph 5. are not completed to the satisfaction of the Director of Community Development by June 30, 2003, Toll shall not request and City shall not issue more than 95 total residential building permits for Tract 4928/RPD Permit No. 94 -1 until the requirements of amended Paragraph 5. of the Settlement Agreement are completed to the satisfaction of the Director of Community Development. 3. Effective May 1, 2003, Toll shall allow the golf course and clubhouse (18 consecutive holes of the 27 holes /including use of golf carts) to be used by City for one City sponsored event each calendar year. The date of the event (and including provisions for rescheduling due to inclement weather) and number of hours shall be by mutual agreement and shall include no less than six (6) daylight hours between the hours of 9:00 a.m. and 6:00 p.m. The 2 J00:136 DRAFT 2003 event shall occur between July 1 and November 30, 2003, and succeeding years between January 2 and November 30, and shall exclude designated City holidays, Sundays, the Saturday after Thanksgiving, and the month of December. City use of the golf course and clubhouse shall be at no cost except for Toll's out -of- pocket expenses. Out -of- pocket expenses shall exclude the cost of up to 150 greens fees and 75 cart rentals. The City's use of clubhouse in this paragraph is in addition to use of clubhouse as specified in Paragraph 7. of the First Amendment to the Settlement Agreement. 4. The "Effective Date" of this Second Amendment shall be the date upon which the last of the following items occurs for phase 3 of Tract 4928: A. City Engineer approval of the rough grading plans; B. City Engineer approval of street and storm drain improvement plans; C. City Engineer approval of the Championship Drive improvement plans; D. City Engineer approval of the Final Map for all items except the submission of public improvement sureties by Toll. 5. Toll shall complete the improvements to Walnut Canyon Road including the intersection of Walnut Canyon Road and Championship Drive in conformance with grading and improvement plans approved by the City and with Caltrans Plan No. 701 -1767 by July 31, 2003. Completion shall be defined as Caltrans' approval to allow these improvements to be used by the public. In the event this improvement is not approved by Caltrans for use by the public by July 31, 2003, Toll shall not request and City shall not issue more than 95 residential building permits until such Caltrans approval is obtained and the improvements are open to use by the public. 6. Toll shall complete the improvement of Grimes Canyon Road in conformance with Ventura County Permit No. 02 -713E2 within one hundred eighty (180) calendar days of City obtaining the real property needed for said improvement (Required Date). Toll shall provide City with 3 000:137 DRAFT legal description for all properties to be acquired by City by April 30, 2003, including temporary construction easements and permanent slope easements. City shall verify the legal description and return to Toll for any corrections by May 31, 2003. If legal descriptions are not approved by City by May 31, 2003, then one day shall be subtracted from the Required Date, referenced above, for completion of these improvements. Toll agrees to pay all City costs for acquisition of the properties needed for construction of these improvements including but not limited to legal, engineering, planning, and appraisal costs in addition to the costs for acquisition of properties. Fifteen percent (15 %) shall be added to all City out -of- pocket expenses for the acquisition costs, excluding the actual cost of the properties. Upon signing of this Second Amendment, Toll shall deposit with City Twenty -five Thousand Dollars ($25,000.00) for this purpose and shall within fifteen (15) calendar days of receipt of request from City, deposit additional amounts of money as may be necessary to complete acquisition of the properties. City shall negotiate for the acquisition of the properties. If such negotiations prove unsuccessful, City shall promptly begin the procedures required by law to consider filing condemnation proceedings for the purpose of acquiring properties. Subject to all negotiation and notice requirements imposed by law, City shall schedule a hearing to consider adoption of a Resolution of Necessity for acquisition of the properties by Eminent Domain. City shall file condemnation proceedings for the purpose of acquiring the properties if and when it 1) has complied with all applicable laws, 2) has been able to make the findings necessary for a Resolution of Necessity under the Eminent Domain Law, and 3) elects, in its sole and exclusive discretion following receipt and consideration of all facts presented at the hearing, to adopt such Resolution. Within ninety (90) calendar days of acquisition of all required properties, City shall provide an invoice to Toll listing all costs and return any portion of Toll's deposit not expended by City for this purpose. Toll agrees to reimburse City within thirty (30) calendar days of receipt of the accounting for any costs in excess of Toll's deposits for this purpose. 4 JOC2.438 DRAFT In the event the improvements required by this paragraph are not open for use by the public and approval by County of Ventura Public Works Department and City are not obtained by the Required Date, Toll shall not request and City shall not issue any additional residential building permits until such approvals are obtained and the improvements are open for use by the public. City agrees to acquire the properties within nine (9) months of City approval of said legal descriptions. In the event City does not achieve this date for acquisition, then one day shall be added to the Required Date. 7. Toll agrees that the final nine (9) holes of the golf course will be completed and open for play on or before December 31, 2004, or twenty -one (21) months after the Effective Date of this Second Amendment, whichever is later. If the nine (9) holes of golf are not complete and open for play as determined by the Director of Community Development by the date specified in the prior sentence, Toll shall not request and City shall not issue any additional residential building permits until the final nine (9) holes of golf course are complete and open for play as determined by the Director of Community Development. 8. Toll agrees that in the event the cable television services or their equivalent are provided to the project under collective arrangement or any collective means other than by a City Cable Franchisee (including, but not limited to, programming provided over a wireless or satellite system contained within the project), the entity responsible for the provision of such service shall pay monthly to the City an access fee of five percent (5 %) of gross revenue generated by the provision of those services, or the highest franchise fee required from any City Cable Franchisee, whichever is greater. "Gross Revenue" is defined in Chapter 5.06 of the Moorpark Municipal Code and any successor amendment or supplementary provision thereto. Developer further agrees that in the event cable television services or their equivalent are provided to the project by any other means other than by a City Cable Franchisee, that the City's government channel shall be available to all units as part of any such service on the same basis as if the project was served by a City Cable Franchisee. 9. Toll agrees for the life of the project to cast affirmative ballots for the increase of any assessments for 5 000139 DRAFT existing assessment districts for the maintenance of parkway and median landscaping, street lighting, and parks conferring special benefits, and for the formation of any new assessment district for the purposes listed above in order to supplement the then existing assessments upon properties within the project. 10. Toll agrees that no later than three (3) years from the Effective Date of this Second Amendment, and at its sole cost and expense, to construct improvements at the intersection of Grimes Canyon Road and State Route 118 (Los Angeles Avenue) hereinafter referred to as Intersection. Toll acknowledges that the Intersection improvements shall be consistent with the requirements of Caltrans, County of Ventura (County), California Public Utilities Commission (PUC), Union Pacific Railroad (UPR), Southern California Regional Rail Authority, and Ventura County Transportation Commission (collectively Metrolink) and City. The Intersection improvements, hereinafter Improvements, shall consist of the following, subject to final approval of the above - referenced entities: A. Intersection traffic signal including interconnection with the railroad crossing signals and a signal on the north side of the railroad crossing with pre- emption circuits, including any modification to the concrete crossing, rail crossing arms, and any other rail safety devices as may be required by UPR, PUC, or Metrolink; B. Two twelve foot (12') wide travel lanes and two eight foot (81) wide paved shoulders on Grimes Canyon Road from approximately three hundred (300) feet north of the railroad crossing to Los Angeles Avenue including modifying the elevation of the road on the north side; C. Improvement of Los Angeles Avenue for a distance of approximately seven hundred twenty (720) feet east of the Intersection and approximately six hundred twenty (620) feet west of the Intersection. The additional improvements to the east are to include an approximately six hundred (600) foot deceleration / right turn lane westbound, and twelve (12) foot median at the Intersection tapering to zero, an eight (8) foot paved shoulder on the north side and an eight (8) foot paved shoulder on the south side. The additional improvements to the west of the 6 00140 Fft._ Intersection are to include an approximate five hundred (500) foot deceleration / left turn lane. It is Toll's responsibility to obtain cooperative funding if available from Caltrans, County, PUC, UPR and /or Metrolink. In no event shall funding issues affect Toll's obligation to complete the Improvements by the date referenced above. Toll further agrees in the event said Improvements are not completed to the satisfaction of all referenced entities no later than three (3) years from the Effective Date of this Second Amendment to pay City One Thousand Dollars ($1,000.00) per calendar day until Improvements are constructed at the Intersection. The $1,000.00 amount per calendar day shall continue to be paid until the full improvements at the Intersection are open to public and completed to the satisfaction of Caltrans, Railroad, Metrolink, PUC, and County. If the improvements as ultimately approved require relocation of the rail crossing arms, Toll shall have an additional two (2) years, over and above the three (3) year period specified above to complete the Improvements to the satisfaction of all referenced entities, before the obligation to pay any daily penalties shall commence. Further, if the Improvements as ultimately approved require relocation of the rail crossing arms, Toll shall be obligated to construct an additional twelve (12) foot travel lane for south bound traffic on Grimes Canyon Road from approximately three hundred (300) feet north of the railroad crossing to Los Angeles Avenue in conjunction with the requirements of 10.B., above. 11. Toll agrees that if the Improvements as described in Paragraph 10. are not open to public and completed to the satisfaction of Caltrans, County, UPR, PUC, and Metrolink no later than three (3) years from the Effective Date of this Second Amendment, or no later than five (5) years from the Effective Date of this Second Amendment if Toll is required to relocate the rail crossing arms in accordance with Paragraph 10., above, Toll shall provide City an irrevocable letter of credit in the amount of Three Hundred Sixty -five Thousand Dollars ($365,000.00) to guarantee payment of the potential payment amounts referenced in Paragraph 10., above, in this Second Amendment and maintain such in full force and effect until the Improvements are completed as required herein, except as set forth below. The form of the irrevocable letter of JOU! 41 V'A credit shall be approved by the City Attorney and shall authorize the City to recover from it all amounts due under the provisions of Paragraph 10. of this Second Amendment. Toll further agrees that should City draw on the irrevocable letter of credit to an extent that the balance is Two Hundred Thousand Dollars ($200,000.00) or less, Toll shall provide additional funding to restore and thereafter maintain this irrevocable letter of credit in an amount of no less than Two Hundred Thousand Dollars ($200,000.00) until City Council authorizes in writing a reduction in the amount or release of the irrevocable letter of credit upon a finding that Toll has met all of its obligations for which the irrevocable letter of credit was provided. 12. Toll agrees to pay City the amount of Two Million Two Hundred Fifty Thousand Dollars ($2,250,000.00) in three payments as follows: A. Seven Hundred Fifty Thousand Dollars ($750,000.00) upon the Effective Date of this Second Amendment; B. Seven Hundred Fifty Thousand Dollars ($750,000.00) on both the first and second anniversaries of the Effective Date of this Second Amendment. City may use these monies for any lawful purpose at its sole and unfettered discretion. 13. Toll agrees that any payments pursuant to this Second Amendment shall be made without reservation, and Toll expressly waives the right to payment of any such fees under protest pursuant to California Government Code Section 66020 and statutes amendatory or supplementary thereto. 14. The parties agree that in the event Toll has a concern about the plan check process, including deadlines for submission or return of plans and thoroughness of the plan submittals and plan check comments, such concern shall be referred to the Director of Community Development, who shall make a decision, and said decision shall be final. 15. Consistent with the terms of this Second Amendment, and no later than thirty (30) days after the Effective Date of this Second Amendment, City agrees to amend City Council Resolution No. 2001 -1875 to delete 8 J00'142 DRAFT condition numbers 6. and 7. related to Walnut Canyon Road improvements and water tank easements, respectively; City Council Resolution No. 96 -1197 to modify condition number 142 of Tract 4928; and City Council Resolution No. 1998- 1508 pertaining to the golf course commencement. 16. Both the Settlement Agreement and First Amendment to Settlement Agreement as amended herein shall remain in full force and effect in accordance with their terms and conditions. IN WITNESS WHEREOF, the undersigned each has executed this First Amendment as of the date first above written. CITY OF MOORPARK By Patrick Hunter, Mayor Attest: LIZA TOLL CA GP CORP. By James W. Boyd, Vice President California Region of Toll CA GP Corp. TOLL CA, L.P. By James W. Boyd, Vice President California Region of Toll CA GP Corp., General Partner of Toll CA L.P. M: \City Share \City Manager \Everyone \Agreements\ Toll Brothers Second Amend 03 2003 without leg format.doc 9 0©�:143