HomeMy WebLinkAboutAGENDA REPORT 2005 0907 CC REG ITEM 09DMOORPARK CITY COUNCIL
AGENDA REPORT
TO: Honorable City Council
FROM: Barry K. Hogan, Community Development
ITEM 9-M.-
CITY OF MOORPARK, CALIFORNIA
City Council Meeting
®# 9 -7 -'R oos
ACTION, AgA:�_�
Directo
DATE: September 1, 2005 (CC Meeting of 9/7/05)
SUBJECT: Consider the Ad Hoc Committee Recommendation on a
Development Agreement with Warehouse Discount Center
for the Property Located on the East Side of SR 23,
Immediately North of New Los Angeles Avenue (Lot 1 of
Tract 5004)
BACKGROUND /DISCUSSION
The Ad Hoc Committee (Councilmembers Parvin and Millhouse) met
with the applicant and staff on August 31, 2005, to review and
finalize the negotiations of the attached development agreement
on the development of Lot 1 of Tract 5004 for Warehouse Discount
Center. The Committee determined that the development agreement
is ready for consideration by the City and recommends that the
Council direct staff to set public hearings and advertise
consideration of the development agreement by the Planning
Commission on September 27, 2005, and by the City Council on
October 5, 2005.
STAFF RECOMMENDATION
Direct staff to set and advertise public hearings before the
Planning Commission and City Council for consideration of the
attached development agreement.
Attachment: Draft Development Agreement.
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Recording Requested By
And When Recorded Return "Co:
CITY CLERK
CITY OF MOORPARK
i99 Moorpark Avenue
Moorpark, California 93021
EXEMPT FROM RECORDER'S FEES
Pursuant to Government Code
§ 6103
DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE CITY OF MOORPA=__.
A1,T
WAREHOUSE DISCOUNT CENTERS
THIS AGREEMENT SHALL BE RECORDED WITHIN TEN DAY:
CC ATTACHMENT
000165
OF EXECUTION BY ALL PARTIES HERETO PURSUANT TO
THE REQUIREMENTS OF GOVERNMENT CODE §65868.5
DEVELOPMENT AGREEMENT
This Development Agreement ( "the Agreement ") is made and
entered into on, by and between the CITY OF MOORPARK, a municipal
corporation, (referred to hereinafter as "City ") and, the owner of
real property within the City of Moorpark generally referred to as
Commercial Planned Development Vest 2004 -
035425 (referred to hereinafter individually as "Developer ") . City
and Developer are referred to hereinafter individually as "Party"
and collectively as "Parties." In consideration of the mutual
covenants and agreements 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 seq. 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 its boundaries for the
development of such property in order to establish
certainty in the development process.
1.2. Prior to approval of this Agreement,
Mitigation Meni teri ng and
Apprevals as defined in subseetien 1.3 ef this
Ag,..^..,,,,,.n the City Council of City ( "the City
Council ") approved General Plan Amendment No. 2004 -3 -04-22-
( "GPA 2004-3-04-2-"), for approximately 4-4- -8.15 acres of
land within the City ( "the Property "), as more
specifically described in Exhibit "A" attached hereto
and incorporated herein,
0211).
1.3. GPA 2004 -3-042-1 ZG 2003-02, Vesting Tentative —Tr e+. na
5425— R-Z-ae ''4�;— and Rcsident4 Conditional Use Permit
2005 -04, Commercial Planned Development Permit No.
2004 -3-03.2- (RCPD 2004 -3-03-2�) [collectively "the Project
Approvals "; individually "a Project Approval "] provide
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for the development of
construction of certain
connection therewith ( "the
the Property and the
off -site improvements in
Project ") .
1.4. 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.
1.5. 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. Developer anticipates developing
the Property over a maximum of oneee ( -31) year -&.
In consideration thereof, Developer agrees to waive its
rights to legally challenge the limitations and
conditions imposed upon the development of the Property
pursuant to the Project Approvals and this Agreement
and to provide the public benefits and improvements
specified in this Agreement.
1.6. 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 GPA 2004 -3-04�.
1.7 City and Developer acknowledge and agree that the
conditions and requirements of the Development
Agreement adopted through Ordinance 220 for the Special
Devices, Incorporated project will continue to be met,
unless modified by this Agreement as long as the
Development Agreement adopted by Ordinance remains in
PffPr _
1.8-7. On , 2005, 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 -9. On, , 2005 the City Council commenced a duly
noticed public hearing on this Agreement, and at the
conclusion of the hearing on , 2005 approved the
Agreement by Ordinance No. the Enabling
Ordinance ").
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2. Property Subject To This Agreement. All of the Property shall
be subject to this Agreement. The Property may also be
referred to hereinafter as "the site" or "the Project ".
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 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 a 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
any of 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
transferred subsequent to the operative 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,
delivered 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.
Shea arehouse Discount Center Dev Agr 0222 2005.doc —4 —
4. Development of the Property. The following provisions shall
govern the subdi_ development and use of the Property.
4.1. Permitted Uses.
permitted
The permitted and
uses of the Property shall
those that are allowed by the Project
this Agreement.
conditionally
be limited to
Approvals and
4.2. Development Standards. All design and development
standards, including but not limited to density or
intensity of use and maximum height and size of
buildings, that shall be applicable to the Property are
set forth in the Project Approvals and this Agreement.
4.3. 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 ").
4.4. Reservations and Dedications. All reservations and
dedications of land for public
applicable to the Property are set
Approvals and this Agreement.
5. Vesting of Development Rights.
purposes that are
forth in the Project
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.
Shea arehouse Discount Center Dev Agr 0222 2005.doc —5 —
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In furtherance of the Parties intent, as set forth in
this subsection, 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 provided the Property is developed in
accordance with the Project Approvals and this
Agreement. Nothing in this subsection 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
Sliea arehouse Discount Center Dev Agr 0222 2005.doc —6 _
000.'70
is deemed complete by City (collectively "City Laws "),
except City Laws that:
(a) change any permitted or conditionally permitted
uses of the Property from what is allowed by the
Project Approvals;
(b) limit or reduce the density or intensity of the
Project, or any part thereof, or otherwise require any
reduction in the number of proposed buildings or other
improvements from what is allowed by the Project
Approvals.
(c) 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 by the
Project Approvals 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;
(d) 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;
(e) control residential rents;
(f) prohibit or regulate development on slopes with
grades greater than 20 percent, including without
limitation Moorpark Municipal Code Chapter 17.38 or any
successor thereto, within the Property; or
(g) modify the land use from what is permitted by the
City's General Plan Land Use Element at the operative
date of this Agreement or that prohibits or restricts
the establishment or expansion of urban services
including but not limited to community sewer systems to
the Project.
5.4. Term of Subsequent Approvals. The term of any tentative
map for the Property, or any portion thereof, shall
expire ten (10) years after its approval or conditional
approval or upon the expiration or earlier termination
of this Agreement, whichever occurs first,
notwithstanding the provisions of Government Code
Section 66452.6(a) or the fact that the final map may
Shea arehouse Discount Center Dev Agr 0222 2005.doc —7 —
000171
be filed in phases. 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 or subdivision improvement or other agreements
relating to the Project, 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.
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, any 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, Developer shall have the right, at its
election and without risk to or waiver of any right
that is vested in it pursuant to this section, to apply
to City for modifications to Project Approvals and
Subsequent Approvals. The approval or conditional
approval of any such 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 Developer if all
infrastructure required by the Project Approvals,
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1 f wl.
Subsequent Approvals, and this Agreement 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. Consistent with subsection 5.1 of this
Agreement, 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. Developer shall comply with (i) this Agreement, (ii)
the Project Approvals, (iii) all Subsequent Approvals
for which it was the applicant or a successor in
interest to the applicant and (iv) the MMRP of the
previously certified EIR for the Special Devices
Incorporated projectMe and any subsequent or
supplemental environmental actions.
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 a building permit for
each residential —er commercial or institutional use
within the boundaries of the Property, 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.
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000,x,.73
On the operative date of this Agreement, the amount of
the Development Fee shall be Eight Theusand Eight
Hundiced - Ninety-Five l l a;es ($8,895.00) per residential:
~;} anel Forty Thousand Twenty -Eight Dollars
($40,028.00) per gross acre of commercial or
institutional land on which the commercial or
intitutional use is located. The fee shall be adjusted
annually commencing one (1) year after the first
residential building permit is issued within CPDZ rie C
2004 - 035425 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 first residential building permit is issued
within CPDZrZet 2004- 035425 (e.g., if the permit
issuance occurs in October, then the month of June is
used to calculate the increase). In the event there is
a decrease in the referenced Index for any annual
indexing, the Development Fee shall remain at its then
current amount until such time as the next subsequent
annual indexing which results in an increase.
6.4. As a condition of the issuance of a building permit for
each commercialresential or institutional use within
the boundaries of the Property, 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 operative date of this Agreement,
the amount of the Citywide Traffic Fee shall be Five
Theusand Seventy-Five Dellars per
residential unit, t, and— Twenty -Two Thousand, Eight
Hundred Thirty -Eight Dollars ($22,838.00) per acre of
commercial or institutional land on which the
commercial or institutional use is located. Commencing
on January 1, 2006, and annually thereafter, beth
Seger; es e f the Gi t ywi de Tra f fie Fee shall be the
contribution amount shall be increased to reflect the
change in the Caltranse Highway Bid Price Index for
Selected California Construction Items for the twelve
(12 ) month period available+ha} is reperted in the
avad4a on December 31 of the preceding year ( "annual
indexing ") . In the event there is a decrease in the
Shea arehouse Discount Center Dev Agr 0222 2005.doc —10 —
000174
referenced Index for any annual indexing, the current
amount of the Git -ywide Tr-,ffie —f -Fee shall remain
untilat its then eurEen-t- -a ffteu„t t-A4 such time as the
next subsequent annual indexing which results in an
increase.
In the event the Caltrans Highway Bid Price Index is
discontinued or revised, such successor index with
which it is replaced shall be used in order to obtain
substantially the same result as would otherwise have
been obtained if the index had not been discontinued
or revised.
eaeh residential -r institutienal use within the
la Aundar -i es; Ate- the -Rreper t y, D e y e l o p e r shall pay Gity-&
enpe 11..11..d by Gi i-s its and unfet -erect d i s �,ret i eve
N
The-�,me,,r+- e f i-1-,e Gemm,,ri ty Cer yes Fee shall be T =_ e
1 111.. U1llV U11 V �y �L 1 ry V
Theasand, Twe Hundred Thirty-Three gel l rs ($2,233.00)
unit, pei- residential and Seven Theasand Seventy
r
land a ,-. s_ r l-, fi e bl the fi r s t i t,, t i e r a l , e-. n ' is leeated.
ng , 2008, and a , v the C , . TTe s le e shall be
= adjusted by any
ifiLerease in l..11li 1/VilU LAlLLIil Priee index (GPI-) until
r V 1i --s Fees L-: n been r, i r The (D T 1 m m Ur1 Vy S V1
previded by the U. S. Department ef Laber, infer m^-1�- � l'� Y, '
T -,ber St-,ti sti en fer all urban ens rs within he
Les Angles 'Trahe:m T: v -e r . - e me- repel i tar area a nq
the ,-.ri nr esit-1r. The eale,, l -1t i er sip- ,�1��� -, be �-� „EJ
August ever the eilG1I of August. in
is-
the �^ L event the.,-.- r i -1 it r -� L n the GPI s annual
v,T ,SiAC�r
3=1 ide7il11G G�J� ss Citrtri ees Fee shall em-, r -mot
/ v C =- O^2'G^G�T� GTCLLT'- LT1�C'L
l isthen r-.,,rren -,mean until s ,`-,1.1 t i mn -,s t� ne +-
v 1.. 1 1 V 1 1- ��S�.�iI� the V�T�i�
subsequent n s�,� mil, rnn l }��n
annual y 1 1 to 1.. ZS
c- Intentionally left blank.
6.6. On the operative date of this Agreement, Developer
shall pay all outstanding City processing costs related
to preparation of this Agreement, and Project
Approvals, and "'RP.
6.7. Prior to the issuance of the building permit for each
commercial or institutional buildinqLceslden44ial
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000175
dwell within the Property, Developer shall pay
a fee for acquisition;., lieu ef the Eied eat of
parkland and related improvements (Park Fee). On the
operative date of this Agreement, the amount of the
Park Fee shall be F31ght Theusand Twe Hundred Fer
•
DAB ($8,240.00) - l-. ^r ^ae r^ + id^r i
1 dwelling 1i t
and -Fifty Cents ($.50) per square foot of each building
used for commercial or institutional purposes within
the Property. The fee shall be adjusted annually
commencing one (1) year after the first
commercialEes den i -ate or institutional building permit
is issued within CPD Tr 12004- 035425 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 first
commercial or institutionalresiden* l building permit
is issued within CPDTraet 2004-035425 (e.g., if the
permit issuance occurs in October, then the month of
June is used to calculate the increase). In the event
there is a decrease in the referenced Index for any
annual indexing, the Park Fee shall remain at its then
current amount until such time as the next subsequent
annual indexing which results in an increase.
Developer agrees that the above - described payments
shall be deemed to satisfy the parkland dedication
requirement set forth at California Government Code
Section 66477 et seq. for the Property.
6.8. Developer agrees, after approval of landscaping and
irrigation plans by the City, to landscape and maintain
those areas under the freeway bridge along the north
and south sides of New Los Angeles Avenue as well as
the area on the north side of New Los Angeles Avenue
along the entire reach of the Caltrans right -of -way.
Said landscaping shall be installed prior to the
occupancy of the first commercial or institutional
building. Rr n v i r er that p rT er te reeerdatien e
z trti'i -�
first= final m p fer Trt?Z215 er- ,rarez 31, 2996,
later, whieheve-E ±S Ventura Geunty T-t ^r s D t t
/� l l
!1 ' 1 Yl T ' t` M a t ' t Y>
within m t 54215,
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00017G
Shea arehouse Discount Center Dev Aqr 0222 2005.doc —13 —
000JL77
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6.9. Developer shall warrants that the total gross taxable
sales in the first year of operation will be Seven Million
Dollars ($7,000,000.00) per annum, in the second year of
operation the total gross taxable sales will be Eight Million
Dollars ($8,000,000.00), in the third year of operation the
total gross taxable sales will be Nine Million Dollars
($9,000,000.00), in the fourth, fifth, sixth, seventh, eighth,
ninth and tenth year of operation the total gross taxable
sales will be Ten Million Dollars ($10,000,000.00) for each
year. The first year shall start from the date of initial
occupancy of Warehouse Discount Center. Initial occupancy
shall be twelve (12) months from the date of the issuance of a
certificate of occupancy, including conditional occupancy,
which allows for the operation of Warehouse Discount Center.
Should the annual total gross taxable sales from the Warehouse
Discount Center not reach the annual amount for any year in
the first ten years of operation the Developer shall pay the
City the difference in total gross taxable sales times 0.0075
(e.g., if the gross receipts in the first year are
$6,000,000.00 instead of $7,000,000.00 then Developer would
pay City $7,500.00 ($1,000,000.00 x .0075). This fee shall be
paid for each year that the total gross taxable sales are not
met. The fee shall be paid monthly in twelve (12) equal
installments in the year following the shortfall. This fee may
be expended by the City in its sole and unfettered discretion.
If in any year the gross taxable sales exceeds the
established annual amount the Developer will be given a credit
against future annual gross taxable sales, on a dollar for
dollar basis until such credit amount is used to offset a
shortfall in any subsequent year
b e u r v e m and t c e bath f , m i 1 d a t " . b .. units w i t L , FainiFftufft o f
1,400 square feet te be seld te buyers he Fn'e[T the erg teria
f e r 1 ew I Z ee e 8_0 peree,t er less ef ffieeli 11 reef e ) ; siiE ( " )
}� �. ^...�. �r
f�(4 ) be,a reem ,a two ( 2 ) bath family de a e1, ed i:ini C T
With a ffiinimuRi ef 1,400 squai-e feet te be seld te buyers whe
ffiee-t the —eL-i teri a f{ r yer -1 e': ±' ---FR reent er less e f
Fftc -di-a n i n e and five (5) feuiF (4) be r.. o f and t e ( 2) b a
- Vim , m . �,/ 4- 00 — s-c��e .. g e ,ffi y d e a eh ed units
ef eighteen (18) feet ffieasured freffi the baek ef sidewalk, meet
minimum set-h k req,,; r +- f Rnnn�3- 02, ine C eenerece
V �... V l./ lA �..i J 1 L V t.A 1 1 V 1 L ll. 1 1 �L
reef tiles, 'l T"id ether amenities typieally feund in ffiederate
N. ±vv.w hvva • eT ditieni ng /e. t rrar
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-14- 000178
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-15- 000179
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-18- 000182
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-18- 000182
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-18- 000182
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6.10. Developer agrees that the M t ' gat Meas.-L-.- eluded in t
rr� vz subsequent -err
agrees to pay to City an air quality mitigation fee, as
described herein (Air Quality Fee), in satisfaction of the
Transportation Demand Management Fund mitigation requirement
for the Project. The Air Quality Fee may be expended by City
in its sole discretion for reduction of regional air pollution
emissions and to mitigate residual Project air quality impacts.
At the time the Fee is due, City may at its sole discretion
require Developer to purchase equipment, vehicles, or other
items, contract and pay for services, or make improvements for
which Developer shall receive equivalent credit against Air
Quality Fee payments or refund of previous payments.
The Air Quality Fee shall be calculated by the Director of
Community Development consistent with the then applicable
Ventura County Air Quality Management District URBEMIS Model
prior to occupancy approval ,
— Dellaias ($1,636.00) per for the first commercial
buildingr����; } The fee shall to be paid prior to the
occupancyissu nee of each building _ fe the firs}
iEesi ent ,' unit in Trae+- 5130. Commencing on March 1, 200-7-6,
and annually thereafter the Air Quality Fee shall be adjusted
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 of
December over the prior month of December. In the event there
is a decrease in the CPI for any annual indexing, the fee shall
remain at its then current amount until such time as the next
subsequent annual indexing which results in an increase.
Iff ..
6.11. Developer shall provide an easement to the City for a City
Welcome Sign on the Project site at a location satisfactory to
-20-
000184
the Community Development Director. The easement shall provide
for the location and maintenance of the sign. Developer agrees
to pay $25,000 to the City for the construction and erection of
the sign. The funds may be expended by City in its sole and
unfettered discretion. The fee shall be paid prior to
occupancy of the first commercial building.
right AZT
• • , ,
p V'UT"ST ± -- of Federal, State, laws er Zzrr-_rs
.mothat w eu-ld l-la-e e a s e the
nufftber of dwelling units A ee s rue 1. 1.d VriC. h_
gir .1
6.12. Developer agrees to cast affirmative ballots for the formation
of one or more assessment districts and levying of assessments,
for the maintenance of parkway and median landscaping, street
lighting, including but not limited to all water and
electricity costs, 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. Prior to reee rdat en — occupancy of the first
buildings for the Property, if required by City at its
sole discretion, Developer shall also form one or more property
owner associations to assume ownership and maintenance of open
space land, trails, storm water detention and /or debris basins
and related drainage facilities, landscaping (including
landscaping within Caltrans rights -of -way), and other
amenities, and to comply with the National Pollutant Discharge
Elimination System (NPDES) requirements of the Project. The
obligation of said property owner association-& shall be more
specifically defined in the conditions of approval of
Commercial Planned Devleopment 2004-03Traet B42S and R P9 2003_
4z�_.
6.13. 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 Library Facilities Fees, Police
Facilities Fees, Fire Facilities Fees, drainage, 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
-21-
000185
and such future fees imposed as determined by City in its sole
discretion so long as said fee is imposed on similarly situated
properties.
6.14. Developer shall pay the Los Angeles Avenue Area of
Contribution (AOC) fee for each Laes dent , l let
ir-}; };a};encommercial use prior to the issuance of a building
permit for each let e- use. The AOC fee shall be the dollar
amount in effect at the time of issuance of the building
permit for each residential let nd ins : u ; e commercial use.
6.15. Developer agrees to landscape and maintain, at its sole cost
and expense, the Caltrans right -of -way along the southern
boundary of the site. If approved by Caltrans the developer
shall remove the existing chainlink fencing and install a six
(6) foot high decorative tubular steel fence with block
pilasters at the top of the slope. The street -improve �s
designed [1 l /Y Y, /1 lV ", T, � /, /1 Y, [", Y\ /1 /1 T T 1
des r ' i ie _e � e� � ie � e .e �� �str11e-te by DC�Tr�C��--( per to r,r . ide f er a 50—year
life fn -, n deterfained by the Gity Engineer.
6.16. Developer agrees that any fees and payments pursuant to this
Agreement shall be made without reservation, and Developer
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. Developer
further agrees that the fees it has agreed to pay pursuant to
subsections 6.3 and 6.5 of this Agreement are not public
improvement fees collected pursuant to Government Code Section
66006 and statutes amendatory or supplementary thereto and
that for purposes of Government Code Section 65865(e) and
statutes amendatory or supplementary thereto.
6.17. Developer agrees to comply with Section 15.40.150 of the
Moorpark Municipal Code and any
supplementary thereto fer annual
••provisions amendatory
or supplementary thereto for annual review of this Agreement
and further agrees that the annual review shall include
evaluation of its compliance with the previously certified EIR
for the SDI project and approved MN9 aec4 --MMRP .
6.18. Developer agrees to provide City with cash deposits as City
may require at its sole discretion to pay all City and related
costs for the proceedings and related services for possible
formation of a District as referenced in subsection 7.6 of
this Agreement, which may be required to be paid prior to
formation of a District, or in the event a District is not
formed, after the commencement of proceedings related thereto.
Said costs may include but are not limited to attorney fees,
engineering fees, City staff costs, and City overhead expenses
-22- 000186
of fifteen percent (150) on all out of pocket and professional
service costs.
Developer further agrees that City may at its sole discretion
select the bond counsel, underwriter, financial advisor and
any other professional service provider City deems necessary
to process the possible formation of a District.
6.19. Developer agrees that any election to acquire property by
eminent domain shall be at City's sole discretion, and only
after compliance with all legally required procedures
including but not limited to a hearing on a proposed
resolution of necessity.
7. City Agreements.
7.1. City shall commit reasonable time and resources of City staff
to work with Developer on the expedited and parallel
processing of applications for Subsequent Approvals for the
Project area and shall use overtime and independent
contractors whenever possible. Developer shall assume any risk
related to, and shall pay the additional costs incurred by
City for, the expedited and parallel processing.
7.2. If requested in writing by Developer and limited to City's
legal authority, City at its sole discretion 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 including any land which is outside
City's legal boundaries. The process shall generally follow
Government Code Section 66462.5 et seq. and shall include the
obligation of Developer to enter into an agreement with City,
guaranteed 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, City staff costs, and City overhead expenses
of fifteen percent (15 %) on all out -of- pocket costs.
7.3. The City Manager is authorized to sign an early grading
agreement on behalf of City to allow rough grading of the
Project prior to completion of all condition compliance
requirements
Said early grading agreement shall be consistent with the
conditions of approval for Tr e 5425 and RCPD 2004 -3-03� and
contingent on City Engineer and Director of Community
Development acceptance of a Performance Bond in a form and
amount satisfactory to them to guarantee implementation of the
erosion control plan and completion of the rough grading and
construction of on -site and off -site improvements. In the
case of failure to comply with the terms and conditions of the
-23-
000187
early grading agreement, the City Council may by resolution
declare the surety forfeited.
7.4. City agrees that whenever possible as determined by City in its
sole discretion to process concurrently all land use
entitlements for the same property so long as said entitlements
are deemed complete.
7.5.6 City agrees that upon receipt of a landowners' petition by
Developer and Developer's payment of a fee, as prescribed in
California Government Code Section 53318, as well as payment
for costs described in subsection 6.18 of this Agreement, 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 public
facilities, infrastructure and services that are required by
the Project 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 purpose of any such District may also include fees for
funding public facilities, infrastructure and services that are
required by the Project to the extent permitted by the Act as
determined by bond counsel for the District's bond indebtedness
financing. City may select and retain bond counsel, engineers,
underwriters, financial advisors and any other professional
service providers it deems necessary at its sole discretion to
conduct proceedings and related services for possible formation
of a District. City further agrees that, to the extent
permitted by the Act as determined by bond counsel, Developer
may be reimbursed for costs advanced by Developer for formation
and related proceedings.
In the event that a District is formed,
against any commercialr-es; denti-al
buildingr��� thereon shall afford
prepay the special tax in full prior to
the initial sale of the developed lot
commercial building -e -e ��.
the special tax levied
lot or commercial
the buyer the option
the close of escrow
by the builder of
to
on
the
-24- 000188
7.6 -9. City shall facilitate the reimbursement to Developer of any
costs incurred by Developer that may be subject to partial
reimbursement from other developers as a condition of approval
of a tL-aet FRap development permit or development agreement
with one or more other developers.
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.
9. Demonstration of Good Faith Compliance. In order to ascertain
compliance by 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 Developer hereunder
or render this Agreement invalid or void. At the same time as the
referenced annual review, City shall also review Developer's
compliance with the MMRP.
10. Authorized Delays. Performance by any Party of its obligations
hereunder, other than payment of fees, 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 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.
-25-
000189
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 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
(b) fails to make any payments required under this Agreement;
or
(c) materially breaches any of the provisions of the
Agreement.
11.2. Default by City. City shall be deemed in breach of this
Agreement if it materially breaches any of the provisions of
the Agreement.
11.3. Content of Notice of Violation. Every notice of violation
shall state with specificity that it is given pursuant to this
subsection of the Agreement, the nature of the alleged breach,
and the manner in which the breach may be satisfactorily cured.
Every notice shall include a period to cure, which period of
time shall not be less than ten (10) days from the date that
the notice is deemed received, provided if the defaulting party
cannot reasonably cure the breach within the time set forth in
the notice such party must commence to cure the breach within
such time limit and diligently effect such cure thereafter.
The notice shall be deemed given on the date that it is
personally delivered or on the date that 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. Prior to pursuing the remedies set forth herein,
notice and an opportunity to cure shall be provided pursuant to
subsection 11.3 herein.
=26= 000190
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 Developer shall be
injunctive relief and /or specific performance. In addition, if
the breach is of subsections 6.9, 6.10, 6.12, 6.13, 6.14, 6.15,
6.16, 6.17, 6.18, or subsection 6.19 of this Agreement, City
shall have the right to withhold the issuance of building
permits to Developer throughout the Project 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 any Developer who
violates any City ordinance or state statute.
12. Mortgage Protection. At the same time that City gives notice to
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, Developer
may deliver written notice to City and City may deliver written notice
to 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
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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 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 Chapter 15.40 of the Moorpark Municipal Code 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
affected 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.
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,
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 any Project
Approval or Subsequent Approval or modifications thereto, or any other
subsequent entitlements for the project and including any related
environmental approval.
17. Time of Essence. Time is of the essence for each provision of this
Agreement of which time is an element.
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00®IL92
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 or until ten
years after the initial certificateelese of occupancyeseEew has been
issued on the Warehouse Discount Center buildings— �� - -�f�T,
last Affe -relab-1 , whichever occurs last, unless said term
is amended or the Agreement is sooner terminated as otherwise provided
herein.
Expiration of the term or earlier termination of this Agreement shall
not automatically affect any Project Approval or Subsequent Approval
that has been granted or any right or obligation arising independently
from such Project Approval or Subsequent Approval.
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 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 "B" 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 and those exhibits and documents
referenced herein contain 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 thi -s 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
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000193
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 any of the other Parties 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 Chapter 15.40 of the Moorpark Municipal Code of City or any
successor thereof then in effect.
27. Cooperation Between City and Developer. City and 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. Should any provision
of the Implementation Plan be found to be in conflict with any
provision of this Agreement, the provisions of the Implementation Plan
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.
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31. Attorneys' Fees. In the event any action, suit or proceeding is
brought for the enforcement or declaration of any right or obligation
pursuant to, or as a result of any alleged breach of, this Agreement,
the prevailing Party shall be entitled to its reasonable attorneys'
fees and litigation expenses and costs, and any judgment, order or
decree rendered in such action, suit or proceeding shall include an
award thereof.
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.
IN WITNESS WHEREOF, , and City of Moorpark have executed this
Development Agreement on the date first above written.
OWNER /DEVELOPER
To City:
City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
Attn: City Manager
To Developer:
CITY OF MOORPARK
Patrick Hunter
Mayor
EXHIBIT "B"
ADDRESSES OF PARTIES
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