HomeMy WebLinkAboutAGENDA REPORT 2004 0303 CC REG ITEM 09EMOORPARK CITY COUNCIL
AGENDA REPORT
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MA
TO: Honorable City Council
FROM: Barry K. Hogan, Community Development Director
By: Scott Wolfe, Principal Planner Z
DATE: February 4, 2004 (CC Meeting of 3/3/04)
SUBJECT: Request for City Council Direction on Specific Plan
1995 -02 (Moorpark Highlands) Processing
BACKGROUND
In 1995, Morri son- Fountainwood- Agoura submitted applications for
the Specific Plan Area No. 2 project. These applications
included requests for approval of a Specific Plan, General Plan
Amendment, Zone Change, Tentative Tract Map, and Development
Agreement. The City selected a consultant, EDAW, Inc., to
prepare both the Specific Plan and Environmental Impact Report
(EIR) for this project. The Final EIR was certified by the City
Council on April 21, 1999, and the Specific Plan and
accompanying applications were approved on September 15, 1999.
The ordinance approving the Development Agreement was adopted on
October 6, 1999.
In April of 2001, Pardee Homes purchased the property from
Morrison - Fountainwood- Agoura. On October 25 and 26, 2003, a
brush fire burned a significant portion of the City of Moorpark.
Among those areas burned was nearly the entire Specific Plan
site. In response to the damage of this fire, Pardee Homes has
indicated a desire to accelerate the schedule of grading to
establish effective erosion control measures. As the project
has progressed toward grading permit approval, questions have
arisen regarding permit procedures at this point.
S: \Community Development \DEV PMTS \R P D \2002 \03 Pardee \Agenda Rpts \cc agenda report - grading# G IL
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DISCUSSION
The following addresses questions on the grading permit
procedures, U.S. Fish and Wildlife Service permits, and the
Highway 23 Bypass /North Hills Parkway improvements:
■ What is needed for the issuance of an Early Grading Permit?
Under the Development Agreement, the City Manager is
authorized to sign an Early Grading Agreement on behalf of the
City to allow grading of the project prior to City Council
approval of the Final Map. The Agreement requires that prior
to the issuance of a grading permit, the developer would have
to submit grading plans and improvement plans acceptable to
the City in accordance with the adopted conditions of
approval, and post sufficient surety in the form of
Performance Bonds to the satisfaction of the City Engineer and
the Community Development Director. Issuance of a grading
permit under the Early Grading Agreement also requires a
developer to be substantially complete with respect to its
Final Map. Once the grading permit is issued, the developer
must grade consistent with the grading and improvement plans
and consistent with the conditions of approval of the
Tentative Tract Map and the Specific Plan. This would include
ensuring that conditions which have not yet been met are
enforced. In this instance, the requirement for the grading
of the rights -of -way for the Highway 23 Bypass and the North
Hills Parkway would be addressed through a separate, but
related agreement, specifying the conditions and timing of the
required work and establishing the acceptable methods of
required surety for that future work.
■ Is the applicant required to obtain a US Fish and Wildlife
Service permit prior to grading?
For development projects with federally endangered or
threatened species on site, an applicant is required, prior to
grading, to obtain a permit for "incidental take" from the
U.S. Fish and Wildlife Service (FWS) pursuant to Section 10 of
the Federal Endangered Species Act (ESA) . Under the ESA, if
the site does not contain protected species, no Section 10
permit is required. Prior to the October 2003 fire, nesting
pairs of California gnatcatchers, federally- listed threatened
birds, were observed on the Specific Plan Area No. 2 site.
The site was re- surveyed after the fire. In this post -fire
survey, the applicant's biological consultant concluded that
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no California gnatcatchers or suitable habitat exists on the
site. City staff hired an independent biologist at the
developer's expense (permitted by and acceptable to the FWS)
to survey the site and to verify the findings of the
applicant's biologist. This second survey confirmed these
findings that no California gnatcatchers are present on the
site, and that insufficient breeding habitat exists to support
California gnatcatchers should a breeding pair return to the
site. FWS staff indicated that an absence of California
gnatcatchers and suitable habitat on this site would remove
the requirement of the applicant to obtain a Section 10
permit. Since this is the case, the condition requiring the
applicant to obtain a Section 10 permit is fulfilled.
■ How will grading of the project affect the habitat of the
California gnatcatchers?
If the City issues grading permits without the issuance of a
Section 10 permit from the FWS, the areas to be graded will be
no different than they would have been had the FWS approved
the proposed Habitat Conservation Plan (HCP) and issued the
permit. The area to be preserved under the proposed HCP will
still be preserved, in this case as a Resource Conservation
Area (RCA) and, while the applicant will not be required to
fulfill the requirements of an HCP, the preservation and
mitigation requirements of the Specific Plan and related
entitlements will still be enforced.
■ What will the status of the "Resource Conservation Area" be if
a grading permit is issued?
The status of the RCA will be similar to that if a Section 10
permit were issued, with the exception that the FWS will not
have jurisdiction over the area. Conditions of approval
require the land included within the RCA to be dedicated to
the City of Moorpark for maintenance as permanent open space.
No development, grading, or other activities which will
disrupt the habitat on the site will be allowed. Prior to the
commencement of any work on the site, the applicant will be
required to fence the area to prevent disturbance and access
to the RCA. Following grading and subsequent construction of
the project, the City will determine the appropriate amount of
public access and use, if any, to be allowed within the RCA.
Under the conditions of approval, the City has final approval
over ownership of the RCA. Since this area no longer requires
FWS permits, the RCA ownership and maintenance responsibility
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could remain with the homeowners association. Maintenance
should be relatively low cost and will be funded by the
developer. The additional property off Los Angeles Avenue
would also be included as part of the RCA.
■ Will the applicant grade the rights -of -way for the SR -23
Bypass and the North Hills Parkway or will the City accept
payment in lieu of grading?
Condition number 48 of the Tentative Tract Map requires the
preparation of grading plans for the SR -23 Bypass and North
Hills Parkway (also referred to as the SR -118 Bypass) routes
through the project site, and requires the developer to grade
the approved alignments unless "...by action of the City
Council, an in -lieu fee as determined by the City Manager..." is
approved. At this time, the City Manager is not recommending
an in -lieu fee option and therefore, the applicant will be
required to provide grading plans for the SR -23 Bypass and
North Hills Parkway routes, and will be required to grade
those rights -of -way.
Environmental review will be required prior to the approval of
any grading and this review may delay the commencement of the
grading operations, should this option be chosen. Staff will
incorporate appropriate language in the Early Grading
Agreement for the applicant to pay for the cost of
environmental review and comply with all mitigation
requirements should the Council decide that the rights -of -way
are to be graded.
■ What environmental review and documentation is required for
the grading of these right -of -ways?
While the SR -23 Bypass and the North Hills Parkway rights -of-
way were shown on exhibits in the Specific Plan No. 1995 -02
EIR, their impacts were not evaluated. At the time the EIR
was prepared, the precise design of the future roadways was
not known and an accurate picture of the extent of grading,
noise levels, and other impacts could not be assessed or
evaluated. Design of these roadways has proceeded to the
point that the anticipated impacts can now be evaluated. It
is expected that a Subsequent EIR or a Supplement to the
Specific Plan EIR would be required to evaluate the impacts of
the grading and ultimate improvements of these rights -of -way.
This subsequent environmental document would tier its analysis
on the previously certified EIR for the Specific Plan.
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■ Will the cost for the additional environmental work required
for the grading of the Highway 23 Bypass and North Hills
Parkway be paid for by the applicant?
As the requirement to grade the rights -of -way for the Highway
23 Bypass and the North Hills Parkway is a condition of the
applicant's project, and as the environmental review must be
done before grading can occur, the cost of the environmental
review will be borne by the applicant. The preparation, review
and certification of the proposed EIR may take up to 24
months, and the applicant will not be permitted to grade the
rights -of -way until this work is complete. The applicant has
agreed to pay $250,000 for environmental documentation for the
portions of the roadways. Total cost of environmental
documentation is estimated to be in within this range,
including staff time.
Will the additional environmental work include a review of the
impacts of connections of the SR -23 Bypass to Broadway, and
the SR -23 Bypass and North Hills Parkway to the existing SR-
118 freeway, or should these connections be reviewed at a
later time?
The review of environmental impacts for both the SR -23 Bypass
and North Hills Parkway should encompass all reasonably
foreseeable aspects of the project. At this point, this would
include connections of the SR -23 Bypass from the northern
boundary of Specific Plan site to Broadway and from the SR -23
Bypass /North Hills Parkway intersection on the Specific Plan
site to a potential link with the SR -118 freeway at Princeton
Avenue. Although designing these connections may delay the
completion of the EIR somewhat, neglecting to evaluate them as
a part of the EIR process at this time could be viewed as a
circumvention of CEQA requirements. It should also be noted
that, depending upon the level of review required by Caltrans,
additional delays might occur.
■ What would be proposed to be included in the Early Grading
Agreement?
The Early Grading Agreement would be amended to add the
following language:
"Within thirty (30) calendar days after the issuance of the
scope of work for the EIR or no later than a certain date
determined by the City, the applicant shall pay the City of
Moorpark the sum of Two Hundred Fifty Thousand Dollars
($250,000). The Early Grading Permit shall not be granted
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until this sum is paid to the City within the prescribed time
frame or any extension granted in writing by the City Manager.
The applicant shall pay One Thousand Dollars ($1,000.) for
each day of time extension. The City may use this money and
any money collected for any time extension for any lawful
purpose at its sole and unfettered discretion."
A second agreement, to be entered into by the City and the
applicant, would accompany the Early Grading Agreement and
include the following language:
"Prior to the issuance of the Grading Permit, the applicant
shall provide surety in the amount of $5,693,000.00 in a form
acceptable to the City of Moorpark, as described in Section 2,
below, as a guarantee for the completion of the grading, site
remediation, and revegetation (if necessary) of the portions
of the SR -23 and North Hills Parkway within the project
boundaries. The amount of the surety shall be increased on
January 1, 2005, and annually thereafter, 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. In the event there is a decrease in the
referenced index for the annual indexing, the surety shall
remain at its then current amount until such time as the next
subsequent annual indexing which results in an increase.
Changes or refinements in design which result in a lower
estimated cost for the improvements, as determined by the City
Engineer, shall result in a decrease of the required surety to
reflect the new estimate. Such surety shall be maintained
until such time as the grading to be guaranteed is completed
and accepted by the City of Moorpark, or until the City
determines that it is necessary to utilize the surety to
complete the work;" and
"The applicant shall commence grading on the portions of SR 23
and North Hills Parkway that lie within the boundaries of the
Specific Plan No. 2 area within thirty (30) calendar days from
a written request from the City Manager. Such request shall
not occur until after the EIR has been certified by the City
Council."
Additionally, the second agreement would define circumstances
by which the grading will be accomplished, as well as
appropriate forms of surety, and contingency provisions for
unforeseen problems in scheduling.
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STAFF RECOMMENDATION
1. Concur with staff's determination that Condition No. CDD -45
of Resolution No. 2000 -1767, requiring the applicant to
have a Habitat Conservation Plan approved by the U.S. Fish
and Wildlife Service, has been fulfilled since there are no
gnatcatchers or habitat existing on site, and with the
concept that the homeowners association will maintain
ownership of and management responsibilities for the
Resource Conservation Area (RCA) as described in this staff
report.
2. Concur with the City Manager's determination that the City
will require the developer to grade the SR -23 and North
Hills Parkway within the Specific Plan No. 2 boundaries, in
lieu of the acceptance of a cash payment for such
improvements.
3. Direct the staff to prepare an Early Grading Agreement to
include the provisions detailed in this staff report.
4. Direct staff to execute a contract with a consultant to
prepare an Environmental Impact Report (EIR) to evaluate
the impacts of the future SR -23 Bypass and North Hills
Parkway, including the connections of the SR -23 Bypass from
the northern boundary of the Specific Plan site to
Broadway, and from the SR -23 Bypass /North Hills Parkway
intersection on the Specific Plan site to a potential link
with the SR -118 freeway at Princeton Avenue.
5. Direct staff to prepare a separate agreement establishing
the timing and surety requirements for the grading of the
SR -23 and North Hills Parkway rights -of -way and authorize
the City Manager to sign the agreement, subject to final
language approval by the City Manager and City Attorney.
000OG t
AGREEMENT FOR CONSTRUCTION OF SUBDIVISION
IMPROVEMENTS AND REIMBURSEMENT
This Agreement is entered into this day of
20 , by and between PARDEE HOMES, hereinafter referred to as
"Developer ", and the City Of Moorpark, California, a municipal
corporation, hereinafter referred to as "City ":
RECITALS:
WHEREAS, Developer desires the City's approval of a final
subdivision map for Tract No. 5045 ( "Final Map ") and commonly
referred to as Moorpark Highlands ( "Subject Tract "); and
WHEREAS, City desires that, in the event the Final Map is
approved, Developer be contractually obligated thereafter to
construct certain improvements in and about the Subject Tract that
are required by conditions of approval of the tentative subdivision
map for Tentative Tract No. 5045 ( "Tentative Map ");
NOW, THEREFORE, in consideration of City's approval of the Final
Map prior to construction of the improvements required by the
approved Tentative Map, the parties hereto agree as follows:
1. Developer represents that Developer is the owner of
approximately 455 acres of land located in the City to be
developed pursuant to Specific Plan No. 95 -2, Tentative Tract
Map No. 5045, known as the Moorpark Highlands Specific Plan, for
which a Development Agreement by and between the City and Pardee
has been adopted.
2. As a condition of TTM 5045 (CDD -48), Developer shall at his sole
cost prepare engineered plans for the alignement and grading of
SR -23 and North Hills Parkway arterial bypass reservations shown
upon the Tentative Map, consistent with CALTRANS standards for
public highways, and upon approval of the plans the developer
shall grad the alignments to accommodate a minimum two lane
arterial roadway for the full length of the alignments within
the Tentative Tract, or pay fees in lieu thereof, at the sole
discretion of the City.
3. The City has found and determined, as the lead agency, that an
Environmental Impact Report (EIR) will be required pursuant to
the provisions of the California Environmental Quality Act
(CEQA) before the grading and improvement of the future North
Hills Parkway and SR -23 extensions, including segments outside
the Subject Tract, are commenced.
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AGREEMENT FOR CONSTRUCTION OF SUBDIVISION
IMPROVEMENTS AND REIMBURSEMENT
4. Section 7.4 of the Development Agreement sets forth a procedure
allowing the City Manager of the City to execute an Early
Grading Agreement for the Project site under certain terms and
conditions.
5. Pardee has requested the issuance of an Early Grading Agreement
from the City.
6. Prior to the issuance of the Grading Permit, the applicant shall
provide surety in the amount of $5,693,000.00 in a form
acceptable to the City of Moorpark, as described in Section 7,
below, as a guarantee for the completion of the grading, site
remediation, and re- vegetation (if necessary) of the portions of
the SR -23 and North Hills Parkway within the project boundaries.
The amount of the surety shall be increased on January 1, 2005,
and annually thereafter, 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. In the event
there is a decrease in the referenced index for the annual
indexing, the surety shall remain at its then current amount
until such time as the next subsequent annual indexing which
results in an increase. Changes or refinements in design which
result in a lower estimated cost for the improvements, as
determined by the City Engineer, shall result in a decrease of
the required surety to reflect the new estimate. Such surety
shall be maintained until such time as the grading to be
guaranteed is completed and accepted by the City of Moorpark, or
until the City determines that it is necessary to utilize the
surety to complete the work.
7. The required surety shall take the form of a cash deposit in a
joint account, with the City and Pardee as owners, or an
irrevocable letter of credit in favor of the City, equivalent in
value to the anticipated cost of the improvements to be
provided, and increased as needed.
8. The applicant shall commence grading on its portion of SR -23 and
North Hills Parkway within thirty (30) calendar days from a
written request from the Community Development Director. Such
request shall not occur until after the EIR has been certified
by the City Council, and thirty (30) days following the filing
of a Notice of Determination.
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f 00OG9
AGREEMENT FOR CONSTRUCTION OF SUBDIVISION
IMPROVEMENTS AND REIMBURSEMENT
9. After the final payment has been made, the City may, at its
discretion, determine that it will accept the cash payment in
lieu of actual grading improvements, or may continue to hold the
cash or letter of credit until required grading for the SR -23
and North Hills Parkway within the project boundary have been
completed.
10. Developer shall guarantee the replacement and repair of the
Improvements for one (1) year after they are accepted as
complete by the City Council of City. This guarantee shall not
include routine maintenance or ordinary wear and tear. The
securities required pursuant to Paragraph 5 hereof shall not be
exonerated until a security guaranteeing the requirements of
this Paragraph, in the amount of at least ten percent (10°) of
the sum shown in Paragraph 6 hereof, is accepted by the City
Council of City.
11. Developer shall indemnify, defend with counsel approved by City
and hold harmless City, Charles Abbott Associates, the County of
Ventura ( "County ") and the Ventura County Watershed Protection
District ( "District ") and their officers, employees, servants
and agents from any claim, demand, damage, liability, loss, cost
or expense for any damage whatsoever, including but not limited
to death or injury to any person and injury to any property,
resulting from, or in any way connected with, the performance of
this Agreement, except such damage as is caused by the sole
negligence of City, County or District or any of their officers,
employees, servants or agent.
12. Developer is and shall at all times remain as to City a wholly
independent contractor. Nothing contained in this Agreement
shall be deemed, construed or represented by City or Developer
to any third person to create the relationship of principal and
agent, partnership, joint venture, or any other association of
any kind or nature between City and Developer.
13. This Agreement constitutes the entire agreement of the parties
concerning the subject matter hereof and all prior agreements or
understandings, oral or written, are hereby merged herein. This
Agreement shall not be amended in any way except by writing
expressly purporting to be such an amendment, signed and
acknowledged by both of the parties hereto.
14. Should interpretation of this Agreement, or any portion thereof,
be necessary, it is deemed that this Agreement was prepared by
the parties jointly and equally, and shall not be interpreted
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fl0E?0r0
AGREEMENT FOR CONSTRUCTION OF SUBDIVISION
IMPROVEMENTS AND REIMBURSEMENT
against either party on the ground that the party prepared the
Agreement or caused it to be prepared.
15. No waiver of any provision of this Agreement shall be deemed, or
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 executed in writing by the party making the
waiver.
16. In the event any action, suit or proceeding is brought for the
enforcement of, or the declaration of, any right or obligation
pursuant to this Agreement or as a result of any alleged breach
of any provision of this Agreement, the prevailing party shall
be entitled to recover its costs and expenses, including
reasonable attorney's fees, from the losing party, and any
judgment or decree rendered in such a proceeding shall include
an award thereof.
17. Any notice to be given pursuant to this Agreement shall be in
writing, and all such notices and any other document to be
delivered shall be delivered by personal service or by deposit
in the United States mail, certified or registered, return
receipt requested, with postage prepaid, and addressed to the
party for whom intended as follows:
TO: City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
Attn: City Manager
TO:
Either 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. Demands and other documents shall
be deemed delivered upon receipt by personal service or upon
deposit in the United States mail.
18. This Agreement shall be binding upon the successors and assigns
of the parties hereto until such time that all the securities
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AGREEMENT FOR CONSTRUCTION OF SUBDIVISION
IMPROVEMENTS AND REIMBURSEMENT
listed in Section 6 of this Agreement are completely exonerated
by the City.
19. 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.
DEVELOPER
DATED:
(type or print)
By:
(signature)
(type or print name)
Title:
CITY OF MOORPARK
DATED:
DATED:
as
Steven Kueny, City Manager
ATTEST:
Deborah S. Traffenstedt,
City Clerk
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