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HomeMy WebLinkAboutAGENDA REPORT 2005 1005 CC REG ITEM 08EITEM S. E. CiTYOF MOOR— c -(, 'A .1F -0RN1A MOORPARK CITY COUNCIL AGENDA REPORT TO: The Honorable City Council FROM: Steven Kueny, City Manager DATE: September 28, 2005 (CC Meeting of 10/5/2005) SUBJECT: Consider an Ordinance of the City of Moorpark for Development Agreement No. 2004 -02 between the City of Moorpark and NLA 118, L.L.C. (Warehouse Discount Center) in Connection with General Plan Amendment No. 2004 -04 and Commercial Planned Development Permit No. 2004 -03 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 On September 7, 2005, the City Council referred the draft Development Agreement between the City and NLA 118, L.L.C. (Warehouse Discount Center) to the Planning Commission for a recommendation and directed staff to set a Council hearing on this matter for October 5, 2005. The Planning Commission held a public hearing on September 27, 2005 to consider this draft Development Agreement. The staff report is attached. After closing the hearing, the Planning Commission discussed the draft Development Agreement and adopted Resolution No. PC- 2005 -489, recommending approval to the City Council. A copy of the draft Ordinance with the draft Development Agreement is included as Attachment 2. STAFF RECOMMENDATION 1 2 Open the public hearing, accept public testimony and close the public hearing; Introduce Ordinance No. for first reading and schedule second reading and adoption for October 19, 2005. 000 -.e39 Honorable City Council October 5, 2005 Page 2 Attachments: 1. Planning Commission agenda report for September 27, 2005 (without attachments). 2. Draft Ordinance for Development Agreement by and between the City of Moorpark and NLA 118, L.L.C. (Warehouse Discount Center). 00040 MOORPARK PLANNING COMMISSION AGENDA REPORT TO: Honorable Planning Commission FROM: Barry K. Hogan, Community Development Director DATE: September 21, 2005 (PC Meeting of 09/27/05) SUBJECT: Consider Development Agreement No. 2004 -02 between the City of Moorpark and Warehouse Discount Center in connection with General Plan Amendment No. 2004 -04 and Commercial Planned Development Permit No. 2004 -03 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 On September 7, 2005, the City Council considered the recommendation of its Ad Hoc Committee (Councilmembers Parvin and Millhouse) regarding a Development Agreement for a Warehouse Discount Center store and distribution facility. The Council, upon recommendation of the Ad Hoc Committee, directed staff to advertise a public hearing on the Development Agreement before the Planning Commission for its September 27, 2005 meeting and concurrently advertise a public hearing on the Commission's recommendation before the City Council at its October 5, 2005 meeting. This Development Agreement is the City's first commercial development agreement and as such does not contain any affordable housing requirement. It does however contain guarantees of sales tax over time. As with all of the City's development agreements, a standard format has been utilized, making slight adjustments to suit the particular project. The substance of what the developer will do for the City is contained within Section 6 and the substance of what the City will do for the developer is contained within Section 7. This project also requires a General Plan Amendment application to amend text in the Land Use Element to allow for commercial distribution and warehousing in the General Commercial land use designation, a Commercial Planned Development (CPD) application for a 115,000 sq. ft and 17,500 sq. ft. one -story commercial building, \ \Mor _pri_sery \City Share \Communit CC ATTACHMENT 1 Karehouse Disco,, -' O ® ®�� Ctr \Agenda Rpts \PC 050927.doc Honorable Planning Commission September 27, 2005 Page 2 and a Conditional Use Permit to exceed the thirty -five (35) foot height limit in the CPD zone for architectural elements on the 115,000 sq. ft. commercial building. These entitlement applications were reviewed by the Planning Commission on June 28, 2005. The Planning Commission recommended approval with conditions and modifications to the project. The applicant has incorporated these recommended modifications into the proposed design. The Planning Commission recommendation on these entitlements will be considered by the City Council at the October 5, 2005 meeting with the Development Agreement. PROCESSING TIME LIMITS This application is exempt from the time limits under the Permit Streamlining Act (Government Code Title 7, Division 1, Chapter 4.5), the Subdivision Map Act (Government Code Title 7, Division 2), and the California Environmental Quality Act Statutes and Guidelines (Public Resources Code Division 13, and California Code of Regulations, Title 14, Chapter 3). ENVIRONMENTAL DETERMINATION In accordance with the City's environmental review procedures adopted by resolution, the Community Development Director determines the level of review necessary for a project to comply with the California Environmental Quality Act (CEQA). Some projects may be exempt from review based upon a specific category listed in CEQA. Other projects may be exempt under a general rule that environmental review is not necessary where it can be determined that there would be no possibility of significant effect upon the environment. A project which does not qualify for an exemption requires the preparation of an Initial Study to assess the level of potential environmental impacts. Based upon the results of an Initial Study, the Director may determine that a project will not have a significant effect upon the environment. In such a case, a Notice of Intent to Adopt a Negative Declaration or a Mitigated Negative Declaration is prepared. For many projects, a Negative Declaration or Mitigated Negative Declaration will prove to be sufficient environmental documentation. If the Director determines that a project has the potential for significant adverse impacts and adequate mitigation can not be readily identified, an Environmental Impact Report (EIR) is prepared. The Director has prepared or supervised the preparation of an Initial Study to assess the potential significant impacts of this 000142 Honorable Planning Commission September 27, 2005 Page 3 project. Based upon the Initial Study, the Director has determined that all potentially significant effects have been analyzed adequately in an earlier Environmental Impact Report. No further analysis pursuant to the California Environmental Quality Act is required. STAFF RECOMMENDATION 1. Open the public hearing, accept public testimony and close the public hearing. 2. Adopt Resolution No. PC -2005- recommending to the City Council approval of Development Agreement No. 2004 -02. ATTACHMENTS: 1. Location Map 2. Resolution No. PC -2005- with Draft Development Agreement 000-1.43 ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF MOORPARK, CALIFORNIA, ADOPTING A DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF MOORPARK AND NLA 118, L.L.C. (WAREHOUSE DISCOUNT CENTER) WHEREAS, the Planning Commission of the City of Moorpark on September 27, 2005, did adopt Resolution No. PC 2005 - recommending to the City Council approval of Development Agreement No. 2004 -02, by and between the City of Moorpark and NLA 118, L.L.C. (Warehouse Discount Center); and WHEREAS, at a duly noticed hearing on October 5, 2005, the City Council considered Development Agreement No. 2004 -02; and WHEREAS, the Environmental Impact Report prepared for the Special Devices Incorporated project (SCH No. 1995071057) has adequately analyzed all potential impacts of the project proposed under Development Agreement No. 2004 -02; and WHEREAS, the City Council, after review and consideration of the information contained in the City Council staff reports and public testimony, has made a decision on this matter. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. The City Council of the City of Moorpark does hereby find that Development Agreement No. 2004 -02 is consistent with the General Plan as amended by General Plan Amendment No. 2004 -04, and no Specific Plans are applicable to the property covered by the Development Agreement. SECTION 2. The City Council hereby adopts Development Agreement No. 2004 -02 (attached hereto) between the City of Moorpark, a municipal corporation, and NLA 118, L.L.C. (Warehouse Discount Center); and the City Clerk is hereby directed to cause one copy of the signed, adopted agreement to be recorded with the County Recorder no later than ten (10) days after the City enters into the development agreement pursuant to the requirements of Government Code Section 65868.5. CC ATTACHMENT 2 000 -44 Ordinance No. Page 2 SECTION 3. That if any section, subsection, sentence, clause, phrase, part or portion of this Ordinance is for any reason held to be invalid or unconstitutional by any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council declares that it would have adopted this Ordinance and each section, subsection, sentence, clause, phrase, part or portion thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, parts or portions be declared invalid or unconstitutional. SECTION 4. This Ordinance shall become effective thirty (30) days after its passage and adoption. SECTION 5. The City Clerk shall certify to the passage and adoption of this Ordinance; shall enter the same in the book of original ordinances of said city; shall make a minute order of the passage and adoption thereof in the records of the proceedings of the City Council at which the same is passed and adopted; and shall, within fifteen (15) days after the passage and adoption thereof, cause the same to be published once in the Moorpark Star, a newspaper of general circulation, as defined in Section 6008 of the Government Code, for the City of Moorpark, and which is hereby designated for that purpose. PASSED AND ADOPTED this day of October, 2005. Patrick Hunter, Mayor ATTEST: Deborah S. Traffenstedt, City Clerk ATTACHMENT: Development Agreement No. 2004 -02 0001.45 Ordinance No. Page 3 Recording Requested By And When Recorded Return to: CITY CLERK CITY OF MOORPARK 799 Moorpark Avenue Moorpark, California 93021 EXEMPT FROM RECORDER'S FEES Pursuant to Government Code § 6103 DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF MOORPARK AND NLA 118, L.L.C. (WAREHOUSE DISCOUNT CENTER) ATTACHMENT 000JAG Ordinance No. Page 4 THIS AGREEMENT SHALL BE RECORDED WITHIN TEN DAYS 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 2004 -03, Lot 1 of Tract 5004 (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 sec.. and Moorpark Municipal Code chapter 15.40, City is authorized to enter into a binding contractual agreement with any person having a legal or equitable interest in real property within 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 the City Council of City ( "the City Council ") approved General Plan Amendment No. 2004 -04 ("GPA 2004 -04 "), for approximately 8.15 acres of land within the City ( "the Property "), as more specifically described in Exhibit "A" attached hereto and incorporated herein. 1.3. Conditional Use Permit 2005 -04 (CUP 2005 -04) and Commercial Planned Development Permit No. 2004 -03 (CPD 2004 -03) [collectively "the Project Approvals "; individually "a Project Approval "] provides for the development of the Property and 4 0®®1.4'7 Ordinance No. Page 5 the construction of certain off -site improvements in connection therewith ( "the 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 two (2) years. 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 -04. 1.7 City and Developer acknowledge and agree that the provisions 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 effect. 1.8. On September 27, 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. M 6 Ordinance No. Page 6 1.9. 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 "). 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 0001.49 Ordinance No. Page 7 assumes the obligations of Developer under this Agreement with respect to the sold or transferred portion of the Property. Failure to provide a written assumption agreement hereunder shall not negate, modify or otherwise affect the liability of the purchaser or transferee pursuant to this Agreement. Nothing contained herein shall be deemed to grant to City discretion to approve or deny any such sale or transfer, except as otherwise expressly provided in this Agreement. 4. Development of the Property. The following provisions shall govern the development and use of the Property. 4.1. Permitted Uses. The permitted and conditionally permitted uses of the Property shall be limited to those that are allowed by the Project Approvals and this Agreement. 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 purposes that are applicable to the Property are set forth in the Project Approvals and this Agreement. 000150 Ordinance No. Page 8 5. Vesting of Development Rights. 5.1. Timing of Development. In Pardee Construction Co. v. City of Camarillo, 37 Cal.3d 465 (1984), the California Supreme Court held that the failure of the parties therein to provide for the timing or rate of development resulted in a later - adopted initiative restricting the rate of development to prevail against the parties' agreement. City and Developer intend to avoid the result in Pardee by acknowledging and providing that Developer shall have the right, without obligation, to develop the Property in such order and at such rate and times as Developer deems appropriate within the exercise of its subjective business judgment. 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 0005-1 Ordinance No. Page 9 parcel, and final maps), subdivision improvement agreements and other agreements relating to the Project, lot line adjustments, preliminary and final planned development permits, use permits, design review approvals (e.g. site plans, architectural plans and landscaping plans), encroachment permits, and sewer and water connections that are necessary to or desirable for the development of the Project (collectively "the Subsequent Approvals "; individually "a Subsequent Approval ") shall be consistent with the Project Approvals and this Agreement. For purposes of this Agreement, Subsequent Approvals do not include building permits. Subsequent Approvals shall be governed by the Project Approvals and by the applicable provisions of the Moorpark General Plan, the Moorpark Municipal Code and other City ordinances, resolutions, rules, regulations, policies, standards and requirements as most recently adopted or approved by the City Council or through the initiative or referendum process and in effect at the time that the application for the Subsequent Approval is deemed complete by City (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 U®®:15ti Ordinance No. Page 10 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 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 000:.53 Ordinance No. Page 11 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 tc 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, 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 000:.54 Ordinance No. Page 12 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 project 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 t] for each commercial boundaries of the City a development "Development Fee ") expended by City ze issuance of a building permit or institutional use within the Property, Developer shall pay fee as described herein (the The Development Fee may be in its sole and unfettered UO®�.55 Ordinance No. Page 13 discretion. On the operative date of this Agreement, the amount of the Development Fee shall be Forty Thousand Twenty -Eight Dollars ($40,028.00) per gross acre of commercial or institutional land on which the commercial or institutional use is located. The fee shall be adjusted annually commencing one (1) year after the first building permit is issued within CPD 2004 -03 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 building permit is issued within CPD 2004 -03 (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 commercial 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 Twenty -Two Thousand, Eight Hundred Thirty - Eight Dollars ($22,838.00) per acre of commercial or institutional land on which the commercial or institutional use is located. Commencing on January 1, 2006, and annually thereafter, the contribution amount shall be increased to reflect the change in the Caltrans Highway Bid Price Index for Selected California Construction Items for the twelve (12) month period available on December 31 of the preceding year ( "annual indexing ") . In the 0 00.56 Ordinance No. Page 14 event there is a decrease in the referenced Index for any annual indexing, the current amount of the fee shall remain until such time as the next subsequent annual indexing which results in an increase. In the event the Caltrans Highway Bid Price Index is discontinued or revised, such successor index with which it is replaced shall be used in order to obtain substantially the same result as would otherwise have been obtained if the index had not been discontinued or revised. 6.5. On the operative date of this Agreement, Developer shall pay all outstanding City processing costs related to preparation of this Agreement and Project Approvals. 6.6. Prior to the issuance of the building permit for each commercial or institutional building within the Property, Developer shall pay a fee for acquisition of parkland and related improvements (Park Fee) . On the operative date of this Agreement, the amount of the Park Fee shall be Fifty Cents ($.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 commercial or institutional building permit is issued within CPD 2004 -03 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 institutional building permit is issued within CPD 2004 -03 (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 0®®:.5'7 Ordinance No. Page 15 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. 6.7. Developer agrees, after approval of landscaping and irrigation plans by the City, at its sole cost and expense, to landscape and maintain those areas under the freeway bridge along the north and south sides of New Los Angeles Avenue; the area on the north side of New Los Angeles Avenue along the entire reach of the Caltrans right -of -way, and the Caltrans right -of -way along the southern boundary of the site. Said landscaping shall be installed prior to the occupancy of the first commercial or institutional building and to be designed and installed to the satisfaction of the Community Development Director and the City Engineer. If approved by Caltrans, the developer shall remove the existing chainlink fencing at the top of the slope and install a six foot (6') high decorative tubular steel fence with block pilasters. 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. 6.8. Developer 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, 6ixth, 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 twelve (12) months after the date of initial occupancy of Warehouse Discount 00®..58 Ordinance No. Page 16 Center, including conditional occupancy, which allows for the operation of Warehouse Discount Center. For example if initial occupancy occurs on February 1, 2006 the first year shall start on February 1, 2007. If the date of initial occupancy does not start on the first day of a calendar month, then for purposes of this section, the first month of the twelve (12) month period shall be on the first day of the following month. For example, if initial occupancy occurs on February 3, 2007, the start date of the monthly fee calculation shall be March 1, 2007. 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. 6.9. Developer agrees to pay to City an air quality mitigation fee, as described herein (Air Quality Fee) of Sixty Six Thousand Dollars ($66,000.00), 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. 0001.59 ordinance No. Page 17 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 fee shall be paid prior to the occupancy of the first building. Commencing on January 1, 2006, 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. 6.10. Developer shall provide an easement to the City for a City Welcome Sign on the Project site at a location satisfactory to 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 or institutional building. Developer agrees that design of the sign, including the lighting, shall be at the City's sole discretion. 6.11. 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 000316 0 Ordinance No. Page 18 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 occupancy of the first building 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 Development 2004 -03. 6.12. 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 and such future fees imposed as determined by City in its sole discretion so long as said fee is imposed on similarly situated properties. 000J.61_ Ordinance No. Page 19 6.13. Developer shall pay the Los Angeles Avenue Area of Contribution (AOC) fee for each commercial and institutional use prior to the issuance of a building permit for each use. The AOC fee shall be the dollar amount in effect at the time of issuance of the building permit for each commercial or institutional use. 6.14. 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 6.6 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. 6.15. Developer agrees to comply with Section 15.40.150 of the Moorpark Municipal Code and any 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 MMRP. 6.16. 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 000..G2 ordinance No. Page 20 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 sec.. 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 CPD 2004 -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 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. OQ ®5.63 Ordinance No. Page 21 7.5. 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 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 O®®J.G4 Ordinance No. Page 22 provide adequate levels of public services, facilities or infrastructure to the Property including, by way of example only, the lack of water to serve any portion of the Property due to drought; (g) delay caused by a restriction imposed or mandated by a governmental entity other than City; or (h) litigation brought by a third party attacking the validity of this Agreement, a Project Approval, a Subsequent Approval or any other action necessary for development of the Property. 11. Default Provisions. 11.1. Default by Developer. The Developer shall be deemed to have breached this Agreement if it: (a) practices, or attempts to practice, any fraud or deceit upon City; or 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, 000 _G5 Ordinance No. Page 23 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. 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 6.8, 6.9, 6.10, 6.11, 6.12, 6.14, 6.15, or subsection 6.16 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. O0©.s.6(i ordinance No. Page 24 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 Party receiving such a request shall execute and return the 0 ®0J.G 7 Ordinance No. Page 25 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 M accordance with the provisions of Moorpark Municipal Code of City or then in effect, this Agreement terminated, in whole or in part, City and the affected Developer. utual Consent. In Chapter 15.40 of the any successor thereof may be amended or by mutual consent of 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. 0001GS Ordinance No. Page 26 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. 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 twelve (12) years after the initial certificate of occupancy has been issued on the Warehouse Discount Center building, 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 this Agreement, the Parties reasonably requested by ai Agreement from the public rec every portion thereof, to applicable laws. or earlier termination of shall execute any document y Party to remove this ,rds as to the Property, and the extent permitted by 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. oo®1_c9 ordinance No. Page 27 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 this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall be effective to the extent the remaining provisions are not rendered impractical to perform, taking into consideration the purposes of this Agreement. 24. Relationship of the Parties. Each Party acknowledges that, in entering into and performing under this Agreement, it is acting as an independent entity and not as an agent of 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. 0001"110 Ordinance No. Page 28 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. 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 000171 Ordinance No. Page 29 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. CITY OF MOORPARK Patrick Hunter Mayor OWNER /DEVELOPER NLA 118, L.L.C. (Warehouse Discount Center) By. By. Thomas J. Schlender President Shelley K. Schlender Secretary 000272 Ordinance No. Page 30 ADDRESSES OF PARTIES To City: City of Moorpark 799 Moorpark Avenue Moorpark, CA 93021 Attn: City Manager To Developer: NLA 118, L.L.C. (Warehouse Discount Center) 30621 Canwood Street Agoura Hills, CA 91301 Attn: President 0001.1-11-3