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HomeMy WebLinkAboutAGENDA REPORT 2020 0902 CCSA REG ITEM 10ICITY OF MOORPARK, 
CALIFORNIA City Council Meeting of September 2, 2020 ACTION Approved Staff Recommendation. BY B.Garza. I. Consider First Amendment to Mutual Release and Pre-Litigation Settlement Agreement between The Bennett Partnership and the City of Moorpark. Staff Recommendation: Authorize the City Manager to sign First Amendment to Mutual Release and Pre-Litigation Settlement Agreement, subject to final language approval by the City Manager. (Staff: Karen Vaughn) Item: 10.I. MOORPARK CITY COUNCIL AGENDA REPORT TO: Honorable City Council FROM: Karen Vaughn, Community Development Director BY: Freddy A. Carrillo, Associate Planner ll DATE: 09/02/2020 Regular Meeting SUBJECT: Consider First Amendment to Mutual Release and Pre-Litigation Settlement Agreement between The Bennett Partnership and the City of Moorpark BACKGROUND/DISCUSSION On October 26, 2006, The Bennett Partnership (“Bennett”) purchased the property at 14110 Princeton Avenue and inherited a previously-signed Settlement Agreement in connection with the Princeton Avenue Improvement project. The Settlement Agreement also addressed unpermitted uses at the subject property and their encroachment onto adjacent City-owned property and the unimproved La Falda Avenue right-of-way, which bisects the property. On May 8, 2015, the City and Bennett entered in to an Exchange Agreement to update expired terms of the 2006 Settlement Agreement in order to effectuate the transfer of Princeton Avenue road right-of-way in fee to the City along with a landscape easement, access and maintenance easement, and a temporary construction easement from the subject property owned by Bennett. As part of this exchange, adjacent property owned by the City was transferred to Bennett. In addition, on April 26, 2017, the City and Bennett entered into a License Agreement that authorized the use of City-owned property, including the La Falda Avenue right-of-way, and to provide access to the adjacent property purchased from the City by Bennett. On March 7, 2018, the City and Bennett entered into a Mutual Release and Pre- Litigation Settlement Agreement (“Agreement”) (Attachment 1). The Agreement included a number of terms, outlined in Exhibit A of the Agreement. The terms required, among other things, the removal of unpermitted uses at the site, and the submittal of a Temporary Use Permit (TUP) application to allow Bennett to relocate their Fence Factory business from Agoura Hills to Moorpark while the Industrial Planned Item: 10.I. 397 Honorable City Council 09/02/2020 Regular Meeting Page 2 Development (IPD) Permit was under review. The Agreement was recorded on March 7, 2018, and IPD Permit No. 2017-02 was ultimately approved by City Council on October 17, 2019. The Agreement required Bennett to post $120,000 with the City: $100,000 as security deposit for completion of the items identified in Exhibit A of the Agreement by April 30, 2019, and $20,000 to reimburse the City for costs associated with entering into the Agreement, monitoring its compliance, and implementing its terms. If these tasks were not completed to the satisfaction of the City Manager by April 30, 2019, then the City had no obligation to refund the $100,000 deposit. Bennett was able to complete all but one of the tasks identified in Exhibit A by the April 30, 2019 deadline. The remaining task involves the completion of all conditions of approval associated with the approved IPD permit. Conditions of approval included the construction of a parking lot at the northeastern portion of the site, landscaping, curbs, and planters along the easterly property line. These areas overlap with the City’s planned improvements to Princeton Avenue. The improvements along Princeton Avenue will have a direct impact on the property and right-of-way including the relocation of an existing driveway, grading of property, and construction of masonry block screen walls. Additionally, the Princeton project will require a temporary construction easement along portions of the Bennett property. Since Bennett had been working in good faith and making significant progress toward completion of the terms of the Agreement, staff worked with Bennett to develop a two- phase approach to the frontage and site improvements to avoid the demolition/removal of improvements due to the Princeton project activities. Phase I included the construction of parking spaces directly south of the building and parking spaces along the westerly property line which have been completed, and a Final Inspection/Certificate of Occupancy was issued on May 5, 2020 for the Fence Factory office building. Phase II includes construction of a parking lot at the northeastern portion of the site, landscaping, curbs, and planters along the easterly property line. These improvements will be required to be completed within one year after the Notice of Completion for the Princeton Avenue Improvement project has been issued. The original Agreement provided for a refund of the $100,000 deposit upon completion of all the tasks identified in Exhibit A by April 30, 2019. The Agreement did not provide flexibility to allow the City Manager to approve a partial refund or allow for an extension of the timeframe for completion. The proposed First Amendment to the Mutual Release and Pre-Litigation Settlement Agreement (Attachment 2) would allow a partial refund of $80,000 from the $100,000 deposit to Bennett within 60 days of the execution of the First Amendment. The City Manager would also be authorized to issue Bennett a refund of the remaining $20,000 once the remaining improvements have been completed. This Amendment provides additional time to coordinate the public and private improvements desired along Princeton Avenue without penalizing either party. 398 Honorable City Council 09/02/2020 Regular Meeting Page 3 FISCAL IMPACT The proposed amendment to the Agreement does not present any fiscal impacts to the City. The refund is of developer deposit funds. COUNCIL GOAL COMPLIANCE This action does not support a current strategic directive. STAFF RECOMMENDATION Authorize the City Manager to sign First Amendment to Mutual Release and Pre- Litigation Settlement Agreement, subject to final language approval by the City Manager. Attachment 1: Mutual Release and Pre-Litigation Settlement Agreement between The Bennett Partnership and the City of Moorpark, dated March 7, 2018. Attachment 2: Draft First Amendment to Mutual Release and Pre-Litigation Settlement Agreement. 399 MUTUAL RELEASE AND PRE-LITIGATION SETTLEMENT AGREEMENT BETWEEN THE BENNETT PARTNERSHIP AND THE CITY OF MOORPARK This MUTUAL RELEASE AND PRE-LITIGATION SETTLEMENT AGREEMENT ("Agreement") is made and entered into on this 1../11 day of March, 2018, by and between the CITY OF MOORPARK, a municipal corporation ("CITY"), on the one hand, and THE BENNETT PARTNERSHIP, A GENERAL PARTNERSHIP ("BENNETT'), on the other hand, regarding the use of a 2.65-acre property at 14110 Princeton Avenue. RECITALS A.The CITY and Manuel Asadurian, Jr. ("ASADURIAN") entered into a Settlement Agreement on October 25, 2006 ("2006 Settlement Agreement") in connection with the City's construction of a street widening and improvement project along Princeton Avenue. B.On October 26, 2006, BENNETT purchased from ASADURIAN that certain real property ("PROPERTY") at 14110 Princeton Avenue, also identified as APN 513-0-022-015, subject to the 2006 Settlement Agreement. C.BENNETT did not fulfill the terms of the 2006 Settlement Agreement, including completion of the terms within the specified deadlines. Therefore, on May 8, 2015, CITY and BENNETT entered in to an Exchange Agreement and Mutual Escrow Instructions ("EXCHANGE AGREEMENT") to effectuate the transfer to the CITY of road right of way in fee, landscape easement, access and maintenance easement, or temporary construction easement from PROPERTY owned by BENNETT and to transfer to BENNETT portions of adjacent real property owned by CITY. D.In addition, on April 26, 2017, CITY and BENNETT entered into a License Agreement for Use of City-Owned Property for Access ("LICENSE AGREEMENT") that authorized BENNETT to use certain City-owned Property and that certain real property known as "La Falda Avenue" described in the License Agreement to provide access to the 10,850 square foot real property commonly known as Lots 52 and 53 purchased from the CITY by BENNETT. E.The conveyance documents for the exchange of the CITY and BENNETT properties referenced in the EXCHANGE AGREEMENT were recorded on April 26, 2017, including Grant Deeds between the CITY and BENNETT and a Temporary Construction Easement granted by BENNETT to the City in connection with the widening of Princeton Avenue. Moorpark-Bennett Mutual Release and Pre-Litigation Settlement Agreement Page 1 of 10 ATTACHMENT 1 400 F.BENNETT has not fulfilled some of the terms of the EXCHANGE AGREEMENT, including the removal of unpermitted uses from the PROPERTY and the obtaining of an Industrial Planned Development (IPD) Permit for the PROPERTY. G.On September 18, 2017, BENNETT filed an application with CITY for IPD Permit No. 2017-02. These plans include the use of the PROPERTY for a Fence Factory business which BENNETT owns and operates and is proposing to relocate from its current location in Agoura Hills. This application was rejected by CITY as incomplete on October 18, 2017 due to municipal code violations relating to unpermitted uses on the PROPERTY and incomplete plans. H.BENNETT has initiated the removal of unpermitted uses from the PROPERTY; however, at least one tenant with an unpermitted use has not cooperated in leaving the site. The unpermitted use of this PROPERTY remains as the only outstanding item that makes the application for IPD Permit No. 2017-02 incomplete. I.BENNETT has requested to be allowed to immediately begin moving the Fence Factory business on to the PROPERTY as the business must be removed from the Agoura Hills location by April 30, 2018. J.CITY is unable to process IPD Permit application in time to allow Fence Factory to move on to the site and open for business by April 30, 2018 due to the unpermitted business on the PROPERTY. K.The purpose of this Agreement is to set forth the terms under which CITY will 1) process IPD Permit No. 2017-02 in advance of the unpermitted business leaving the PROPERTY and 2) process a Temporary Use Permit ("TUP") to allow Fence Factory to relocate onto the property at 14110 Princeton Avenue on a temporary basis in advance of obtaining IPD Permit No. 2017-02. AGREEMENT For good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and in consideration of these promises, agreements, representations, warranties, covenants, and conditions contained herein, CITY and BENNETT (and each of them) hereby agree as follows: 1.Deposit by BENNETT to CITY BENNETT agrees to deposit with CITY the sum of ONE-HUNDRED TWENTY­ THOUSAND DOLLARS ($120,000.00) in cash or cashier's check by March 5, 2018 as security for compliance with the terms of this Agreement ("DEPOSIT PAYMENT"), which will be held and then expended by CITY as provided in this Agreement. Moorpark-Bennett Mutual Release and Pre-Litigation Settlement Agreement Page 2 of 10 401 2. 3. 4. Conditional Return of Portion of DEPOSIT PAYMENT by CITY to BENNETT upon Completion of Obligations of BENNETT under this Agreement CITY shall make a partial return of the DEPOSIT PAYMENT to BENNETT in the amount of ONE-HUNDRED THOUSAND DOLLARS ($100,000.00) ("CONDITIONAL PAYMENT') within sixty (60) days of BENNETT's completion at its sole cost and expense of all of the tasks outlined in Exhibit A of this agreement to the satisfaction of the City Manager. The remaining $20,000.00 of the DEPOSIT PAYMENT shall be retained by CITY to reimburse the City for its costs and expenses in entering into this Agreement, monitoring its compliance, and implementing the terms of this Agreement. If the tasks outlined in Exhibit A of this Agreement are not completed to the satisfaction of the City Manager IN FULL by April 30, 2019, CITY shall have no obligation to make the CONDITIONAL PAYMENT. BENNETT, FENCE FACTORY and any other entity on the property shall terminate all uses, vehicle and material storage within thirty (30)days of decision on IPD Permit No. 2017-02 if IPD Permit denied. BENNETT hereby expressly agrees that it will forfeit any claim to any portion of the CONDITIONAL PAYMENT should it fail to satisfy all of the foregoing conditions IN FULL by April 30, 2019, and that time is of the essence. BENNETT understands and agrees that the full amount of the CONDITIONAL PAYMENT shall be ONE-HUNDRED THOUSAND DOLLARS ($100,000.00), that no interest shall accrue on such sum, and that BENNETT shall have no claim on the remaining $20,000.00, whether or not IPD Permit No. 2017-02 is approved or disapproved. Processing by CITY of TUP to Allow Fence Factory to Occupy PROPERTY and Operate Business Upon receipt of DEPOSIT PAYMENT identified in Section 1, CITY agrees to accept a TUP Application by BENNETT for Fence Factory to occupy PROPERTY and operate business of sales and equipment rentals and further agrees to promptly process this application and issue a decision that would allow for Fence Factory to operate under the conditions of the TUP through October 31, 2018 or until a decision is effective on IPD Permit No. 2017-02, whichever comes first. BENNETT hereby expressly agrees that it will forfeit any claim to any portion of the CONDITIONAL PAYMENT should it fail to comply with all of the conditions of the TUP while it is in effect. Processing by CITY of IPD Permit No. 2017-02 Upon receipt of DEPOSIT PAYMENT identified in Section 1, CITY agrees to promptly process, hold hearings before the Planning Commission and City Council, and reach a final decision on the application for IPD Permit No. 2017-02 no later than October 15, 2018. Moorpark-Bennett Mutual Release and Pre-Litigation Settlement Agreement Page 3 of 10 402 5.Mutual Release (a)Subject to the performance of the provisions of this Agreement, and except for enforcement of the obligations and undertakings set forth in this Agreement, the 2006 Settlement Agreement, the EXCHANGE AGREEMENT, the LICENSE AGREEMENT, and IPD Permit No. 2017-02, if approved, the CITY, hereby releases, and discharges BENNETT, and its subsidiary and affiliated corporations, and its predecessors and successors-in-interest, affiliates, officers, lessees, operators, retailers, franchisees, dealers, distributors, members, directors, employees, partners, shareholders, agents, consultants, attorneys and insurers, past, present and future (collectively, the "BENNETT RELEASED PARTIES"), for and from any and all claims, causes of action, expenses, liabilities, demands, obligations, indemnities, liens, contribution or subrogation rights, damages, loss of income, loss of property use, diminution in property value, assessments, fines, penalties, emotional distress, exemplary damages, judgments, wrongful death, bodily injury, personal injury, property damage, debts, interest, attorneys' fees, expert witness fees, consultants' fees, costs, investigations, or equitable relief, whether past, present or future, known or unknown, (collectively, "CLAIMS"), arising out of or in any way related to unpermitted uses of the property described in this Agreement, which include truck, equipment, and material storage by business tenants on the PROPERTY (collectively, the "RELEASED MATTERS"). Nothing herein shall be construed as a waiver of the City's rights to enforce any violation of any law, municipal code, municipal regulation or policy, on the Bennett Property that is not expressly identified in this Agreement as the "RELEASED MATTERS." (b)Subject to the performance of the provisions of this Agreement, and except for the enforcement of the obligations and undertakings set forth in this Agreement, the 2006 Settlement Agreement, the EXCHANGE AGREEMENT, the LICENSE AGREEMENT, and IPD Permit No. 2017-02, if approved, BENNETT, on behalf of itself and its subsidiary and affiliated corporations, and their predecessors and successors-in-interest, affiliates, officers, lessees, operators, retailers, franchisees, dealers, distributors, members, directors, employees, partners, shareholders, agents, consultants, attorneys and insurers, hereby forever release, discharge and covenant not to sue the CITY, its officers, administrators, employees, agents, consultants, representatives, insurers, attorneys and assigns, past, present and future (collectively, the "CITY RELEASED PARTIES"), for and from any and all claims, causes of action, expenses, liabilities, demands, obligations, indemnities, liens, contribution or subrogation rights, damages, loss of income, loss of property use, diminution in property value, assessments, fines, penalties, emotional distress, exemplary damages, judgments, wrongful death, bodily injury, personal injury, property damage, debts, interest, attorneys' fees, expert witness fees, consultants' fees, costs, investigations, or equitable relief, whether past, present or future, known or unknown, (collectively, "CLAIMS"), arising out of or in any way related to unpermitted uses of the property described in this Agreement, which include Moorpark-Bennett Mutual Release and Pre-Litigation Settlement Agreement Page4 of 10 403 truck, equipment, and material storage by business tenants on the PROPERTY (collectively, the "RELEASED MATTERS"). (c)In connection with the RELEASED MATTERS, each Party specifically waives any benefit of the provisions of Section 1542 of the California Civil Code, which provides as follows: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." (d)Each Party (and each of them) hereby knowingly and voluntarily waives any right that he/she/it may have under Section 1542 of the California Civil Code or any similar provision of the statutory or non-statutory law of any other jurisdiction, to the full extent that he/she/it may lawfully waive all such rights and benefits pertaining to the RELEASED MA TIERS. In connection with such waiver and relinquishment, each Party acknowledges that he/she/it is aware that said Parties or their attorneys, consultants, or accountants may hereafter discover claims, facts, damages or injuries in addition to or different from those which they now know or believe to exist with respect to the subject matter of this Agreement or the other Parties hereto, and that it is his/her/its intention hereby fully, finally and forever to settle and release all of the RELEASED MA TIERS, whether known or unknown, suspected or unsuspected, which now exist, may exist in the future, or heretofore have existed between any of the Parties hereto with respect to the RELEASED MATTERS. (e)It is the intention of the Parties in executing this Agreement and in giving and receiving the consideration called for by this Agreement that this Agreement shall be effective as a full and final accord and satisfaction of and from all RELEASED MATTERS. 6.Applicability of EXCHANGE AGREEMENT Unless expressly and directly provided otherwise in this Agreement, all terms of the EXCHANGE AGREEMENT , shall continue to apply and remain in full force and effect. Because the LICENSE AGREEMENT is recorded, no provision of this Agreement shall supersede or override the provisions of the LICENSE AGREEMENT. 7.Notices All notices, demands and other communications required or permitted to be given pursuant to this Agreement shall be in writing and shall be delivered personally, by overnight courier, or sent by registered or certified mail to the undersigned Parties as follows: Moorpark-Bennett Mutual Release and Pre-Litigation Settlement Agreement Page 5 of 10 404 8. CITY: City of Moorpark Attention: City Manager 799 Moorpark Avenue Moorpark, CA 93021 COPY TO: Richards, Watson & Gershon Attention: Kevin Ennis, City Attorney 355 South Grand Avenue, 40th Floor Los Angeles, California 90071-3101 BENNETT: The Bennett Partnership Attention: Michael R. Bennett, Partner, and Laurie Bennett, Partner 2419 Palma Drive Ventura, California 93003 No Admission of Liability or Waiver The Parties hereto expressly recognize that the terms and conditions of this Agreement constitute a compromise and settlement of disputed claims and an accord and satisfaction of contested matters. This Agreement shall not be construed in any manner as an admission by any Party hereto of any liability of any kind to the other Party, nor shall be it considered or interpreted as an assumption of any liability by either Party. This Agreement shall be admissible for the sole purpose of enforcing the terms hereof. 9.Waiver, Modification and Amendment This Agreement may not be changed, modified or amended except by a written instrument signed by all Parties hereto, specifying that it amends this Agreement. No provision of this Agreement may be waived unless in writing signed by all Parties hereto. Waiver of any one provision shall not be deemed to be a waiver of any other provision herein. 10.Parties in Interest Except as specifically set forth herein, nothing in this Agreement is intended to confer any rights or remedies under or by reason of this Agreement on any person other than the Parties to it, nor shall any provision give any third person any right of subrogation or other action over or against any Party to this Agreement. 11.Interpretation This Agreement shall be construed without regard to the Party or Parties responsible for the preparation of the same and shall be deemed to have been prepared jointly by the Parties hereto. If any ambiguity or uncertainty exists Moorpark-Bennett Mutual Release and Pre-Litigation Settlement Agreement Page 6 of 10 405 herein, such ambiguity or uncertainty shall not be interpreted against any Party hereto, but rather, shall be interpreted according to the application of other rules of contract interpretation. 12.Governing Law And Venue This Agreement is to be construed simply and fairly and not strictly for or against any of the Parties and shall be governed by the laws of the State of California without giving effect to conflicts of laws thereof. The state courts in Ventura County and the federal courts in Los Angeles, California shall have exclusive jurisdiction over any lawsuits arising out of or relating to this Settlement Agreement and Release. Each party hereto submits to the jurisdiction of those courts and venue therein. 13.Indemnification Developer shall indemnify, defend with counsel approved by City, and hold harmless City and its officers, employees, attorneys, consultants 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 other subsequent entitlements for the property and including any related environmental approval. This provision shall survive the termination, expiration or invalidation of the provisions of this Agreement. 14.Execution Knowing and Voluntary The Parties hereby acknowledge, represent and warrant that they (a) have fully and carefully read this Agreement prior to execution; (b) have had the opportunity to be fully apprised by independent legal counsel of their choice of the legal effect and meaning of this document and all terms and conditions hereof; (c} have had the opportunity to make whatever investigation or inquiry they deem necessary in connection with the subject matter of this Agreement; (d) have been afforded the opportunity to negotiate as to any and all terms hereof; and ( e) are executing this Agreement as free and voluntary acts, without any duress, menace, pressure, or undue influence of any kind or nature whatsoever. 15.Representations Re: Execution and Authority Each person executing this Agreement expressly represents that such person is duly authorized to execute this Agreement on behalf of the entity he or she purports to represent, and each such entity expressly waives any defense it now has, or in the future may have, with respect to the valid and binding execution of this Agreement by an authorized representative. The Parties expressly represent and warrant that each Party has full power, authority and capacity to release the CLAIMS and RELEASED MA TIERS that are the subject of this Agreement and has not previously transferred, assigned or encumbered any CLAIMS or RELEASED MATTERS to any other person or entity. Moorpark-Bennett Mutual Release and Pre-Litigation Settlement Agreement Page 7 of 10 406 16.Entire Agreement Except with respect to the EXCHANGE AGREEMENT, the LICENSE AGREEMENT and the terms of the recorded Grant Deeds and Temporary Construction Easements between the parties, this Agreement contains the sole and entire agreement and understanding between the Parties with respect to the entire subject matter hereof, and any and all prior discussions, negotiations, commitments and understandings related hereto are hereby merged herein. No representations, oral or otherwise, express or implied, other than those contained in the EXCHANGE AGREEMENT, the LICENSE AGREEMENT, the terms of the recorded Grant Deeds and Temporary Construction Easements, and this Agreement between the parties, have been made by any Party hereto. No other agreements not specifically referred to herein, oral or otherwise, shall be deemed to exist or bind any of the Parties hereto. 17.Attorneys' Fees If any action, including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees from the other party. These fees, which may be set by the court in the same action or in a separate action brought for that purpose, are in addition to any other relief to which the prevailing party may be entitled. This provision applies to the entire Agreement. 18.Execution This Agreement may be executed in one or more counterparts, each of which shall be considered an original, but all of which together shall be deemed to constitute a single agreement, notwithstanding that the signatures of the Parties do not appear on the same page. Signatures by facsimile shall be binding, but the Parties shall promptly exchange original signatures on this Agreement. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date set forth below. [Signatures on Next Page] Moorpark-Bennett Mutual Release and Pre-Litigation Settlement Agreement Page 8 of 10 407 ' ' 31/��? Dated: _____ '/c..-;.. /� ...... o........___ _ Dated: __ �_-_'1_. _;<_o_, 'i ___ _ THE BENNETT PARTNERSHIP, CITY OF MOORPARK, a general partnership a municipal corporation By:�MichaelRBennetl,Partner By: � ..._Troy�ager = ATTEST: By:� � Maureen Benson, City Clerk /llt7J-H2 /If/.._ (/<ctc.r/r/C/1/c. /?77Y/CffT� 511 �-g /k�u:i, /(j� �e_ Moorpark-Bennett Mutual Release and Pre-Litigation Settlement Agreement Page 9 of 10 408 ' ' CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Vt-/v//,;;f'.'./1-- 0n t,'lo/o,ff DLJ;rI } Date ) ·--;J • before me, :S,,,:MA"' E libzd4JMf, /(&j,f.� f'cu;6d:!, Here Insert Name and Title of the fficer personally appeared /)l/(!/?½'c-t: /r� 6t!:N/Vt7T. ri71#M'L.£ s 1,T 13�N,4t:7T-/ �ve. Name(s) of Signer(s) Slz.l,( &Li J. iB61/Ale7L who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) -is/aresubscribed to the within instrument and acknowledged to me that l=mi'sl9e/they executed the same inhisLb.el::/their authorized capacity(ies), and that by hisfher/their signature(s) on the instrument the person(s),or the entity upon behalf of which the person(s) acted, executed the instrument. 1············fSUSAN E. HOWLAND : ·. Notary Public- California z I Ventura County ! Commission # 2188929 My Comm. Expires Mar 30, 2021 Place Notary Seal Above I certify under PENAL TY OF PERJURY under the lawsof the State of California that the foregoing paragraphis true and correct. WITNESS my hand and official seal. Signature of Notary Public ---------------opnoNAL--------------- Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document 7 ; Title or Type of Document: llll/7«'�'✓-. liE-.t...r/9� Document Date: __ 3_1/_�§".�i�'/�S_· __ _ Number of Pages:/o-r I Signer(s) Other Than Named Above: D�f{ /v £-t C ;1'T/Vl(Ed:�S/t' / ,1.,:::, /9-'1T/1C.N#'7cc,,ff" / Capacity(ies) Claimed by Signer(s) Signer's Name:____________ Signer's Name: ___________ _ □ Corporate Officer -Title(s): _______ □ Corporate Officer -Title(s): ____ .,,.__ __ ITTartner -□ Limited □ General □Partner -□ Limited □ General□Individual □Attorney in Fact □Individual □Attorney in f;a□ Trustee □ Guardian or Conservator □ Trustee □ Guar.dianor Conservator □Other:-------------�-□ Other: · ...-Signer Is Representing: Plf?YA( eZZ' /6.dz&reRif �igner Is �-e-p_r_ent_n�ti_n_g_: --------- .,,. ©2014 National Notary Association • www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 409 'I '.t Exhibit A Items Required to be Completed by BENNETT in Association With This Agreement 1.By March 5, 2018, pay $120,000 in cash or cashier's check Deposit Payment to City. 2.By March 5, 2018, submit TUP Application to City for Temporary Occupancy of PROPERTY by Fence Factory for Sales and Equipment Rentals. Comply with all Conditions of TUP upon issuance. 3.By March 5, 2018, all taxable sales occurring on the PROPERTY shall be reported to the State as occurring in Moorpark and proof shall be provided to the Community Development Director. 4.By April 30, 2018, remove all tenants, all stored items, all unclaimed items, all equipment, all materials, all stored or parked vehicles, operating or not, and all vehicle parts from PROPERTY that are not a part of the IPD Permit Application and abate any other code compliance violations on the site. In case tenant violates notification to vacate and court action is needed, tenant must be off PROPERTY no later than October 22, 2018. 5.Maintain Business Registrations with City for all uses on site. 6.BENNETT, FENCE FACTORY and any other entity on the PROPERTY shall terminate all uses, vehicle and material storage within thirty (30) days of decision on IPD Permit No. 2017-02 if IPD Permit denied. 7.Complete all conditions of approval, including completion of all on-site and off­ site improvements associated with IPD Permit by April 30, 2019. 8.Comply with any other terms of the May 8, 2015 EXCHANGE AGREEMENT, the LICENSE AGREEMENT and the terms of the recorded Grant Deeds and temporary construction easements between the parties, not modified by this Agreement. 9.All buildings on the site shall comply with applicable local and California Building Codes prior to occupancy. Moorpark-Bennett Mutual Release and Pre-Litigation Settlement Agreement Page 10 of 10 410 ATTACHMENT 2 FIRST AMENDMENT TO MUTUAL RELEASE AND PRE- LITIGATION SETTLEMENT AGREEMENT BETWEEN THE BENNETT PARTNERSHIP AND THE CITY OF MOORPARK This FIRST AMENDMENT TO MUTUAL RELEASE AND PRE-LITIGATION SETTLEMENT AGREEMENT (“First Amendment”) is made and entered into on this ____________ day of __________, 2020 by and between the CITY OF MOORPARK, a municipal corporation (“CITY”), on the one hand, and THE BENNETT PARTNERSHIP, A GENERAL PARTNERSHIP (“BENNETT”). The CITY and BENNETT are referred to below collectively as the “Parties”. In consideration of the mutual covenants and conditions set forth herein, the Parties agree as follows. 1. This First Amendment is made with respect to the following facts and purposes: a. On March 7, 2018, the Parties entered into that certain Mutual Release and Pre-Litigation Settlement Agreement between the Bennett Partnership and the City of Moorpark (“Agreement”) regarding the use of 2.65-acre property located at 14110 Princeton Avenue in the City of Moorpark, and identified as Ventura County Tax Assessor’s Parcel Number 513-0-022-015 (“Property”). b. Section 1 of the Agreement required that BENNETT deposit the sum of $120,000 by March 5, 2018 as security for compliance with the terms of the Agreement (“DEPOSIT PAYMENT”), which the CITY agreed to hold and expend as provided in the Agreement. c. Section 2 of the Agreement set forth the date by which BENNETT was to complete the tasks identified in Exhibit A to the Agreement. It also set forth the obligations of the CITY with respect to the partial refund of a portion of the DEPOSIT PAYMENT upon completion of all of the tasks identified in Exhibit A to the Agreement. d. BENNETT has completed the tasks identified in Exhibit A to the Agreement to the satisfaction of the City Manager; however, obligations that fall under Task 7, including the construction of the northeastern parking lot, landscaping requirements, and curbs and landscape planters along the easterly property line were not completed due to the anticipated Princeton Widening Improvement project. This project will have direct impacts on the property and right-of-way including the relocation of a driveway, grading of property, and construction of masonry block screen walls. Additionally, the project will also require a temporary construction easement along portions of the property. The Agreement provided for a partial refund only upon completion of all of the tasks identified in Exhibit A; however, the Agreement did not authorize the City Manager to approve a partial refund in cases where the City Manager determines that BENNETT has completed a majority of the tasks identified in ____________________________________________________________________________________________ Moorpark-Bennett First Amendment to Mutual Release and Pre-Litigation Settlement Agreement Page 1 2428711v1 411 Exhibit A to the satisfaction of the City Manager provided that sufficient funds are retained by the City as security for the outstanding tasks. e. The Parties now desire to amend Section 2 of the Agreement titled “Conditional Return of Portion of DEPOSIT PAYMENT by CITY to BENNETT upon Completion of Obligations of BENNETT under this Agreement” to extend the due date for the completion by BENNETT of the tasks identified in Exhibit A to the Agreement and to authorize the City Manager to issue partial refunds to BENNETT of the DEPOSIT PAYMENT in cases where the City Manager, in the City Manager’s sole discretion, determines that certain tasks are completed and the retention of certain portions of the Deposit Payment will provide the necessary security interest for the completion of any remaining improvements or tasks. f. The Parties also desire to amend Section 7 of the Agreement titled “Notices” to update an address for providing notice relating to the Agreement g. The Parties also desire to remove Charles J. Bennett, Partner (deceased) as a signatory with The Bennett Partnership. The Bennett Partnership warrants that no other party is required to execute the First Amendment on behalf of Charles J. Bennett. h. In consideration of the terms and conditions of this First Amendment, the CITY and BENNETT agree to amend Section 2 and Section 7 of Agreement and remove Charles J. Bennett from the signatory section, subject to the terms and conditions set forth below. 2. The CITY and BENNETT agree to amend Section 2 of the Agreement to read as follows: 2. Conditional Return of Portion of DEPOSIT PAYMENT by CITY to BENNETT upon Completion of Obligations of BENNETT under this Agreement Based on the status of BENNETT’s completion of the tasks identified in Exhibit A to the Agreement as discussed in Recital 1.d., the CITY shall make a partial return of the DEPOSIT PAYMENT to BENNETT in the amount $80,000 (“PARTIAL REFUND”) within 60 days of this First Amendment. The City Manager is hereby authorized to issue to BENNETT additional partial return of $20,000 (“CONDITIONAL PAYMENT”) of the remaining DEPOSIT PAYMENT upon BENNETT’s completion in full, at its sole cost and expense, for the construction of the easterly parking lot, landscaping requirements, and site improvements along the easterly property line that include curbs and landscape planters that fall under task 7 of the Agreement to the satisfaction of the City Manager. If the tasks outlined in Exhibit A of this Agreement are not completed to the satisfaction of the City Manager IN FULL within one year _____________________________________________________________________________________________ Moorpark-Bennett First Amendment to Mutual Release and Pre-Litigation Settlement Agreement Page 2 of 4 2428711v1 412 of the issuance of the Notice of Completion for the Princeton Widening Improvement project, CITY shall have no obligation to refund the remaining $20,000 CONDITIONAL PAYMENT. BENNETT hereby expressly agrees that it will forfeit any claim to any portion of the CONDITIONAL PAYMENT should it fail to satisfy all of the foregoing conditions IN FULL within the prescribed timeline. BENNETT understands and agrees that the full amount of the CONDITIONAL PAYMENT is the amount of $20,000 and that no interest shall accrue on such sum. Relinquishment of the $20,000 CONDITIONAL PAYMENT by not completing the tasks outlined in Exhibit A does not absolve BENNETT from completing said tasks, as included as Conditions of Approval on the approved Industrial Planned Development Permit No.2017-02. BENNETT shall have no claim on the $20,000 REMAINING DEPOSIT retained by the City per the original Agreement for its costs associated with monitoring compliance and implementing the terms of the Agreement. 3. Amendment to Section 7 of Agreement. The CITY and BENNETT agree to amend Section 7 to read as follows: 7. Notices. All notices, demands and other communications required or permitted to be given pursuant to this Agreement shall be in writing and shall be delivered personally, by overnight courier, or sent by registered or certified mail to the undersigned Parties as follows: CITY: City of Moorpark Attention: City Manager 799 Moorpark Avenue Moorpark, CA 93021 COPY TO: Richards, Watson & Gershon Attention: Kevin Ennis, City Attorney 350 South Grand Avenue, 37th Floor Los Angeles, California 90071 BENNETT: The Bennett Partnership Attention: Michael R. Bennett, Partner, and Laurie Bennett, Partner 2419 Palma Drive Ventura, California 93003 4. Except for the changes specifically set forth herein, all other terms and conditions of the Agreement shall remain in full force and effect. [Signatures on Next Page] _____________________________________________________________________________________________ Moorpark-Bennett First Amendment to Mutual Release and Pre-Litigation Settlement Agreement Page 3 of 4 2428711v1 413 IN WITNESS WHEREOF, the Parties have caused this First Amendment to be executed as of the date set forth below. Dated:__________________________ THE BENNETT PARTNERSHIP, a general partnership By:______________________________ Michael R. Bennett, Partner By:______________________________ Laurie D. Bennett, Partner By:______________________________ Steven J. Bennett, Partner Dated:__________________________ CITY OF MOORPARK, a municipal corporation By:______________________________ Troy Brown, City Manager ATTEST: By:______________________________ Ky Spangler, City Clerk Approved as to form: Richards, Watson & Gershon By:______________________________ Kevin Ennis, City Attorney _____________________________________________________________________________________________ Moorpark-Bennett First Amendment to Mutual Release and Pre-Litigation Settlement Agreement Page 4 of 4 2428711v1 414