HomeMy WebLinkAboutAGENDA REPORT 2022 1102 CCSA REG ITEM 09CCITY OF MOORPARK, CALIFORNIA
City Council Meeting
of November 2, 2022
ACTION CONSENSUS TO PROVIDE
DIRECTION TO STAFF TO INSTALL A
CITY WELCOME SIGN ON THE SITE PER
THE DEVELOPMENT AGREEMENT.
BY A. Hurtado.
C. Consider Request from Tom Schlender on behalf of NLA 118, LLC, (Warehouse
Discount Center) to Refund $25,000 for Installation of a City Welcome Sign as
Required by the Development Agreement between the City and NLA 118, LLC,
and Consider Adoption of a Resolution. Staff Recommendation: Discuss and
provide direction on the request of Tom Schlender to refund $25,000 for installation
of a City Welcome Sign and consider adoption of a Resolution. (Staff: Troy
Brown, City Manager) (ROLL CALL VOTE REQUIRED)
Item: 9.C.
MOORPARK CITY COUNCIL
AGENDA REPORT
TO: Honorable City Council
FROM: Troy Brown, City Manager
DATE: 11/02/2022 Regular Meeting
SUBJECT: Consider Request from Tom Schlender on behalf of NLA 118, LLC,
(Warehouse Discount Center) to Refund $25,000 for Installation of a
City Welcome Sign as Required by the Development Agreement
between the City and NLA 118, LLC, and Consider Adoption of a
Resolution
BACKGROUND
On October 19, 2005, the City Council adopted Ordinance No. 322 authorizing a
Development Agreement (DA) between the City of Moorpark and NLA 118, LLC, and on
October 5, 2005, Resolution No. 2005-2398 was adopted approving General Plan
Amendment (GPA) No. 2004-04, Commercial Planned Development (CPD) No. 2004-03,
and Conditional Use Permit (CUP) No. 2005-04 for the construction and operation of a
115,000 square-foot appliance store with distribution and warehousing (Warehouse
Discount Center) at the subject property and a 17,000 square-foot furniture store on an
adjacent property.
The entitlement required an amendment to the text of the General Plan Land Use Element
to General Commercial. This amendment allowed furniture and appliance stores on sites
greater than eight acres, adjacent to both a freeway interchange and an arterial roadway
that are not adjacent to planned residential uses, to be developed with retail furniture or
appliance stores with attached distribution/warehouse facilities at a maximum 0.38 Floor
Area Ratio when all other standards of the Zoning Ordinance are met.
Particularly relevant to the action before the City Council is a term in the DA which was
approved concurrently with the entitlements. The DA reduced the risks associated with
the proposed development for the applicant and enhanced the City’s ability to obtain
public benefits beyond those achievable through the then existing ordinances and
regulations.
In exchange for providing surety for the Developer, the DA contained certain community
benefits to enhance the quality of life in Moorpark. The focus of this action before the City
Item: 9.C.
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Council is particularly related to a financial contribution for the installation of a City
Welcome Sign included in the DA.
Section 6.10 of the DA required the Developer to provide twenty-five thousand dollars
($25,000) and an easement to the City for the future installation of a City Welcome Sign.
The payment was received in April 2007 and deposited into Fund 2007 (Art in Public
Places).
At its meeting on December 19, 2012, the Community and Economic Development
Committee considered a potential sign tower (City Welcome Sign) at the Warehouse
Discount Center for economic development purposes. The Committee had concerns
regarding the visual impacts of the proposed sign and recommended it be designed
similar to the tower at the Moorpark Marketplace. After discussion and consideration, the
Committee had no recommendation for the Council.
On January 16, 2013, the City Council considered a conceptual proposal, submitted on
behalf of Verizon Wireless, for a wireless facility to be installed on the site. The proposal
was a stealth facility disguised as a City Welcome Sign. The facility was intended to be
used as an entry sign to the City and notify freeway travelers of other shopping
opportunities adjacent to the freeway that are not included on the Moorpark Marketplace
sign tower. Staff worked with the applicant on alternative solutions which included
integrating antenna panels into the building design or constructing a "monopine" behind
the building. However, the property owner was not in favor of modifying the building, and
a monopine behind the building would not provide enough signal coverage desired for
this area (vicinity of White Sage Road and State Route (SR) 118 freeway). After reviewing
the proposal, the City Council voted 3-2 against proceeding with a City Welcome Sign.
The applicant did not proceed with a formal application for a wireless facility after this
discussion.
On December 16, 2014, Verizon Wireless approached the City with a new stealth facility.
Community Development staff met with the applicant to discuss the new proposal, along
with alternative locations and concepts discussed previously, such as integrating
antennas into the building design or constructing a "monopine" behind the building. The
applicant did not find the alternative locations feasible and decided to proceed with the
submittal of a Conditional Use Permit (CUP) for the major wireless communication facility
and Modification to the Commercial Planned Development (CPD) in the form of a stand-
alone tower.
On December 22, 2014, an application for CUP No. 2014-09 and Modification No. 1 to
CPD No. 2004-03 was submitted for a Major Wireless Communication Facility consisting
of 12 panel antennas and installation of an above ground equipment enclosure within a
48-foot-high tower at 14339 White Sage Road.
Staff met off-site with Vinculums (representative for Verizon Wireless) and Verizon to
review and find more alternative locations. Three locations were identified but needed
further evaluation by the applicant. The applicant took over a year to explore the potential
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locations. Staff attempted to contact the applicant several times to determine if the
applicant was still proceeding with the project, but the applicant was not reachable. Staff
rejected the application without prejudice on August 23, 2016, for lack of activity on an
incomplete application.
On July 19, 2017, the City Council adopted Resolution No. 2017-3614, approving
Modification No. 2 to CPD No. 2004-03 and CUP No. 2016-05 for a 48-foot-high wireless
communication tower at 14339 White Sage Road.
On June 20, 2018, the City Council approved a City Sign Agreement, by and between
NLA 14339, LLC, and the City of Moorpark to establish objective standards for the citing
of the cell tower/City Welcome Sign. Recital H of that agreement states:
“In 2005, the City entered into a Development Agreement with NLA 118, LLC that
applies to the Property and required, in Section 6.10 of that Development
Agreement, that the owner provide an easement to the City for a “City Welcome
Sign” and to pay the City $25,000 to construct that sign. The obligations of Section
6.10 of the 2005 Development Agreement have been satisfied and those
obligations are separate from the obligations provided in this Agreement.”
The City has not constructed the Welcome Sign and the owner has requested a refund in
the amount of $25,000 of his funds intended for the City Welcome Sign.
DISCUSSION
The City of Moorpark and NLA 118, LLC, have enjoyed a long partnership for over twenty
(20) years. NLA 118, LLC, owns and operates Warehouse Discount Center on their
property, a business which consistently ranks among the City’s Top 20 Sales Tax
producers.
The project has an underlying DA which has provided surety for the continued operation
and provision of community benefits for the City. The City has been responsive to the
changing needs of NLA 118, LLC, by amending the DA when requested, as well as
granting a CUP for the operation of a cellular facility. The development of the property
as well as the CUP represent significant financial benefits for owner, above and beyond
what would be obtained if those entitlement did not exist.
Conversely, the presence of Warehouse Discount Center on the property represents a
significant value to the community via the provision of goods, services, and jobs, as well
as increased revenues in the form of property and sales taxes.
Development Agreements are legally binding documents, recorded against the property
for a term set forth in the DA. These agreements provide mutual benefits and are only
executed after the negotiated terms are agreed upon by the parties. All terms of the
agreements associated with NLA 118, LLC, have been executed mutually by the parties
as acknowledged by the parties within the agreements.
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On August 22, 2022, the City received a request from Tom Schlender for a refund in the
amount of $25,000 that was paid in 2007 as a required contribution to be used toward the
installation of a future City Welcome sign. The sign was to be installed on the Warehouse
Discount Center property on the southern side of the property atop the slope at the pad
level of the project.
Staff provided a response to the request on August 24, 2022, restating that the installation
of the tower facility was a separate matter than the previously intended City Welcome
Sign at the Warehouse Discount Center. This decision was reflected in recital H of the
Sign Agreement approved by the City Council in 2018 which states:
“H. In 2005, the City entered into a Development Agreement with NLA, 118, LLC
that applies to the Property and required, in Section 6.10 of that Development
Agreement, that the owner provide an easement to the City for a “City Welcome
Sign” and to pay $25,000 to construct that sign. The obligations of Section 6.10 of
the 2005 Development Agreement have been satisfied and those obligations are
separate from the obligations provided in this Agreement.”
A City Welcome Sign has not been installed and at present there are no plans to install
one at this location, however a sign could be installed in the future. As previously stated,
a major cellular facility, disguised as a tower has been installed on the southwest corner
of the property. In a Sign Agreement approved by the City Council on June 20, 2018, the
owner was required to place the phrase “Moorpark Life can be this good” at the top of the
tower which has since been constructed.
Regarding the City Welcome Sign, the City Council has previously directed the placement
of Welcome Signs on Princeton Avenue and Tierra Rejada Road. Other non-city owned
Welcome Signs exist on SR-118 west of city limits and Walnut Canyon Road north of
Championship Drive. Given that the existing faux tower exists on the property, a City
Welcome Sign may not be necessary at this location.
Further, the easement that was provided for the placement of the City Welcome Sign was
never recorded, rather it was rejected twice by the Ventura County Recorder’s Office in
2008. The easement was first approved by the City Council on August 20, 2008. The
City received notice that the easement was rejected by the Recorder on September 11,
2008. The easement was resubmitted to the Recorder on November 5, 2008, and
rejected by the Recorder on November 13, 2008. In each instance, the easement was
rejected because of illegible text found on the document. Therefore, there is no need to
quitclaim or otherwise relinquish the easement.
The need and likelihood of installation of a City Welcome Sign is not necessary given the
cellular facility cited at this location. However, the terms of receipt of the funds from
NLA 118, LLC, allow the City to use the funding received for the City Welcome Sign in its
“full and unfettered discretion” and the City has currently funded the installation of four (4)
signs.
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Staff recommends the City Council discuss and provide direction on the request of Tom
Schlender to refund $25,000 for installation of a City Welcome Sign.
FISCAL IMPACT
The funds received from NLA 118, LLC, were deposited in 2007 in what is now Fund 2007
(Arts in Public Places). The balance in Fund 2007 is approximately four and a half million
dollars ($4,500,000). The refund will be a $25,000 cost out of this same Fund. At this
time, staff is not requesting a budget amendment for this unbudgeted expense and will
assume this into the existing budget for Fiscal Year 2022/23.
COUNCIL GOAL COMPLIANCE
This action does not support a current strategic directive.
STAFF RECOMMENDATION (ROLL CALL VOTE REQUIRED)
Discuss and provide direction on the request of Tom Schlender to refund $25,000 for
installation of a City Welcome Sign and consider adoption of a Resolution.
Attachment 1: Development Agreement by and between City of Moorpark and
NLA 118, LLC
Attachment 2: City Sign Agreement and Conditions, Covenants and Restriction
Attachment 3: Request from Tom Schlender, Warehouse Discount Center
Attachment 4: Response to Tom Schlender, Warehouse Discount Center
Attachment 5: Draft Resolution No. 2022-____ Authorizing a Refund in the Amount of
Twenty-Five Thousand Dollars ($25,000) to Tom Schlender on behalf of
NLA 118, LLC for a Contribution for a City Welcome Sign per the terms of
the Development Agreement between the City of Moorpark and
NLA 118, LLC
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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
VIII (ili l ill lilt it i iiill l li i illl lil iili i iii
20060106 - 00039 83
Pages: 30 Fees: :0.00
01/06/2066 01:67:20 PM
T2005MI412 EA
Ventura County Recorder
Philip J. Schmit
DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE CITY OF MOORPARK
AND
NLA 118, L.L.C.
WAREHOUSE DISCOUNT CENTER)
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ATTACHMENT 1
312
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 NLA 118, L. L.C. (Warehouse Discount Center), 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 seq.
and Moorpark Municipal Code chapter 15.40, City is
authorized to enter into a binding contractual
agreement with any person having a legal or
equitable interest in real property within its
boundaries for the development of such property in
order to establish certainty in the development
process.
1.2. Prior to approval of this Agreement 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 "]
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provides for the development of the Property and
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.
1.9. On, October 5, 2005 the City Council commenced a
duly noticed public hearing on this Agreement, and
at the conclusion of the hearing on October 5, 2005
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314
approved the
the Enabling
2. Property Subject To
shall be subject to
also be referred to
Project ".
Agreement by Ordinance No. 322
Ordinance ").
Phis Agreement. All of the Property
this Agreement. The Property may
hereinafter as "the site" or "the
3. Binding Effect. The burdens of this Agreement are
binding upon, and the benefits of the Agreement inure to,
each Party and each successive successor in interest
thereto and constitute covenants that run with the
Property. Whenever the terms "City" and "Developer" are
used herein, such terms shall include every successive
successor in interest thereto, except that the term
Developer" shall not include the purchaser or transferee
of any lot within the Project that has been fully
developed in accordance with the Project Approvals and
this Agreement.
3.1. Constructive Notice and Acceptance. Every person
who acquires any right, title or interest in or to
any portion of the Property in which a Developer
has a legal interest is, and shall be, conclusively
deemed to have consented and agreed to be bound by
this Agreement, whether or not any reference to the
Agreement is contained in the instrument by which
such person acquired such right, title or interest.
3.2. Release Upon Transfer. Upon the sale or transfer
of any of Developer's interest in any portion of
the Property, that Developer shall be released from
its obligations with respect to the portion so sold
or transferred subsequent to the operative date of
the sale or transfer, provided that the Developer
i) was not in breach of this Agreement at the time
of the sale or transfer and (ii) prior to the sale
or transfer, delivered to City a written assumption
agreement, duly executed by the purchaser or
transferee and notarized by a notary public,
whereby the purchaser or transferee expressly
assumes the obligations of Developer under this
Agreement with respect to the sold or transferred
portion of the Property. Failure to provide a
written assumption agreement hereunder shall not
negate, modify or otherwise affect the liability of
the purchaser or transferee pursuant to this
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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.
5. Vestina of Development Riahts.
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
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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
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
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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
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
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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
decision maker for two (2) additional one (1) year
periods upon application of the Developer holding
the Subsequent Approval filed with City's
Department of Community Development prior to the
expiration of that Approval. Each such Subsequent
Approval shall be deemed inaugurated, and no
extension shall be necessary, if a building permit
was issued and the foundation received final
inspection by City's Building Inspector prior to
the expiration of that Approval.
It is understood by City and Developer that certain
Subsequent Approvals may not remain valid for the
term of this Agreement. Accordingly, throughout the
term of this Agreement, any Developer shall have
the right, at its election, to apply for a new
permit to replace a permit that has expired or is
about to expire.
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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
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.
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6. Developer Aareements.
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 the issuance of a building permit
for each commercial or institutional use within the
boundaries of the Property, Developer shall pay
City a development fee as described herein (the
Development Fee ") The Development Fee may be
expended by City in its sole and unfettered
discretion. 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
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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 ($22,838.00) per acre of commercial
or institutional land on which the commercial or
institutional use is located. Commencing on
January 1, 2006, and annually thereafter, the
contribution amount shall be increased to reflect
the change in the Caltrans Highway Bid Price Index
for Selected California Construction Items for the
twelve (12) month period available on December 31
of the preceding year ( "annual indexing "). In the
event there is a decrease in the referenced Index
for any annual indexing, the current amount of the
fee shall remain until such time as the next
subsequent annual indexing which results in an
increase.
In the event the Caltrans Highway Bid Price Index
is discontinued or revised, such successor index
with which it is replaced shall be used in order to
obtain substantially the same result as would
otherwise have been obtained if the index had not
been discontinued or revised.
6. 5. On the operative date of this Agreement, Developer
shall pay all outstanding City processing costs
related to preparation of this Agreement and
Project Approvals.
6.6. Prior to the issuance of the building permit for
each commercial or institutional building within
the Property, Developer shall pay a fee for
acquisition of parkland and related improvements
Park Fee). On the operative date of this
Agreement, the amount of the Park Fee shall be
Fifty Cents ($.50) per square foot of each building
used for commercial or institutional purposes
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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
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)
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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,
sixth, seventh, eighth, ninth and tenth year of
operation the total gross taxable sales will be Ten
Million Dollars ($10,000, 000.00) for each year.
The first year shall start twelve (12) months after
the date of initial occupancy of Warehouse Discount
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
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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.
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
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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
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
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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.
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.
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7. Citv Agreements.
7.1. City shall commit reasonable time and resources of
City staff to work with Developer on the expedited
and parallel processing of applications for
Subsequent Approvals for the Project area and shall
use overtime and independent contractors whenever
possible. Developer shall assume any risk related
to, and shall pay the additional costs incurred by
City for, the expedited and parallel processing.
7.2. If requested in writing by Developer and limited to
City's legal authority, City at its sole discretion
shall proceed to acquire, at Developer's sole cost
and expense, easements or fee title to land in
which Developer does not have title or interest in
order to allow construction of public improvements
required of Developer including any land which is
outside City's legal boundaries. The process shall
generally follow Government Code Section 66462.5 et
se q. 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 (150) 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 Community
Development Director 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.
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7. 4. City agrees that whenever possible as determined by
City in its sole discretion to process concurrently
all land use entitlements for the same property so
long as said entitlements are deemed complete.
7.5. 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
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casualty; (f) failure, delay or inability of City to
provide adequate levels of public services, facilities or
infrastructure to the Property including, by way of
example only, the lack of water to serve any portion of
the Property due to drought; (g) delay caused by a
restriction imposed or mandated by a governmental entity
other than City; or (h) litigation brought by a third
party attacking the validity of this Agreement, a Project
Approval, a Subsequent Approval or any other action
necessary for development of the Property.
11. Default Provisions.
11.1. Default by Developer. The Developer shall be deemed
to have breached this Agreement if it:
a) practices, or attempts to practice, any
fraud or deceit upon City; or willfully violates
any order, ruling or decision of any regulatory or
judicial body having jurisdiction over the Property
or the Project, provided that Developer may contest
any such order, ruling or decision by appropriate
proceedings conducted in good faith, in which event
no breach of this Agreement shall be deemed to have
occurred unless and until there is a final
adjudication adverse to Developer; or
b) fails to make any payments required under
this Agreement; or
c) materially breaches any of the provisions of
the Agreement.
11.2. Default by City. City shall be deemed in breach of
this Agreement if it materially breaches any of the
provisions of the Agreement.
11.3. Content of Notice of Violation. Every notice of
violation shall state with specificity that it is
given pursuant to this subsection of the Agreement,
the nature of the alleged breach, and the manner in
which the breach may be satisfactorily cured. Every
notice shall include a period to cure, which period
of time shall not be less than ten (10) days from
the date that the notice is deemed received,
provided if the defaulting party cannot reasonably
cure the breach within the time set forth in the
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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.
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
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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
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.
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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.
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.
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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 or earlier termination of
this Agreement, the Parties shall execute any document
reasonably requested by any Party to remove this
Agreement from the public records as to the Property, and
every portion thereof, to the extent permitted by
applicable laws.
20. Notices. All notices and other communications given
pursuant to this Agreement shall be in writing and shall
be deemed received when personally delivered or upon the
third (3rd) day after deposit in the United States mail,
registered or certified, postage prepaid, return receipt
requested, to the Parties at the addresses set forth in
Exhibit "B" attached hereto and incorporated herein.
Any Party may, from time to time, by written notice to
the other, designate a different address which shall be
substituted for the one above specified.
21. Entire Agreement. This Agreement and those exhibits and
documents referenced herein contain the entire agreement
between the Parties regarding the subject matter hereof,
and all prior agreements or understandings, oral or
written, are hereby merged herein. This Agreement shall
not be amended, except as expressly provided herein.
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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.
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.
Rules of Construction. The captions and headings of the
various sections
for convenience
constitute a part
and subsections of this Agreement are
of reference only, and they shall not
of this Agreement for any other purpose
24-
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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
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.
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IN WITNESS WHEREOF, NLA 118, L.L.C. (Warehouse Discount enter)
and City of Moorpark have executed this DevelolAgre ment on
2005.
CITYAOF
Mayor
OWNER /DEVELOPER
NLA 118, L.L.C. (Warehouse Discount Center)
Thomas J. Schlender
President
Shelley Schlender
Secretary
26-
Hu
337
MOORPARK
1 799 Moorpark Avenue Moorpark, California 93021 (805) 517 -6200
PUBLIC AGENCY FORM OF ACKNOWLEDGMENT
STATE OF CALIFORNIA )
COUNTY OF VENTURA ) ss.
CITY OF MOORPARK )
On this 23rd day of December in the year 2005, before me,
Deborah S. Traffenstedt, City Clerk of the City of Moorpark,
personally appeared Patrick Hunter, personally known to me to
be the person whose name is subscribed to the within instrument
and acknowledged to me that he executed the same in his
authorized capacity as the Mayor of the City of Moorpark, and
that by his signature on the instrument, acknowledged to me
that the City executed the instrument.
Witness my hand and Official Seal
Deborah S. Traff,
City Clerk
PATRICK HUNTER ROSEANN MIKOS CLINT D. HARPER KEITH F. MILLHOUSE JANICE S. PARVIN
Mayor Mayor Pro Tem Coundimember CouWlmember Cound(member
338
CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT
State of California
County of _ L L' S 4'n e S
ss.
On 12- / Z C / C, 5- before me
Dale
personally appeared Trio) in S J -Sc
LISA TAMAYO
Commission # 1336624
Notary Public - California
Los Angeles County
My Comm. Expires Dec 27, 2005
1
ISel - n ,/c , (L't4el, t
Name and Tit a of Officer (.g . Jano Doeoe. Notary
tqt bll c
Name(s) of Signer(s) /
Zpersonally known to me
proved to me on the basis of satisfactory
evidence
to be the person(s) whose name(s) - is/are
subscribed to the within instrument and
acknowledged to me that hefahe /they executed
the same in WoMer/their authorized
capacity(ies), and that by hi6Aier/their
signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS y h• d an "PaI seal.
tCL
Sigratore o' Notary Pudic
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:. r u/e% b11q rr1' 6n V-1 11 err _
Document Date:
Signer(s) Other Than Named Above: _
Capacity(ies) Claimed by Signer
Signer's Name:
Individual
Corporate Officer — Title(s):
Partner — Limited - General
Attomey -in -Fact
Trustee
Guardian or Conservator
Other:
Signer Is Representing:
Number of Pages:
RIGHT THUMBPRINT
OF SIGNER
C 1999 National Notary Association • 9350 De Soto Ave PO. Box 2402 • Chatsworth. CA 913132402 • www natronainotary org Prod No 5907 Reorder Cali Tote -Free L800 876 6827
339
EXHIBIT A
LEGAL DESCRIPTION
Lot 1 of Tract No. 5004, in the City of Moorpark, County of
Ventura, State of California, as per Map recorded in Book 137,
Pages 97 to 102 inclusive of Miscellaneous Records (Maps) , and
amended map of Tract No. 5004, recorded in Book 146, Pages 1
through 6 inclusive of Miscellaneous Records (Maps), in the
Office of the County Recorder of said county.
APN: 513 -0- 050 -205
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EXHIBIT B
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
341
9,--72, 6-17 ( 40
RECORDING REQUESTED BY,
AND WHEN RECORDED RETURN TO:
City of Moorpark I IIIIIIIIOI 111111 1111 1 IIIO 11111 II
799 Moorpark
Moorpark, CA 93021
Avenue
20180725-00085134-01116
Attn: City Clerk Ventura
County
Clerk and Recorder
M .
07/25/2018 12:57:53 PM
With a copy to: 1364689 $.00 CE
NLA 14339, LLC
14349 White Sage Rd.
Moorpark, CA 93021
Attn: Tom Schlender
APN: 513-0-050-315
Exempt from recording fees under
California Government Code Section 27383
cg-..6 .Stcdion L/a3,
CITY SIGN AGREEMENT
AND CONDITIONS, COVENANTS AND RESTRICTIONS
This CITY SIGN AGREEMENT AND COND TIONS, COVENANTS AND
RESTRICTIONS (this "Agreement") is dated as of 9/.t 2018, and is entered
into by and between NLA 14339, LLC, a DelawareI/
1
imited liability company ("Owner")
and the CITY OF MOORPARK, a municipal corporation ("City").
RECITALS
A. Owner owns the land described on Exhibit "A" and all improvements
thereon (the "Property").
B Owner and Los Angeles SMSA Limited Partnership (dba "Verizon
Wireless") ("Tenant") plan to enter into or have executed a ground lease called "Land
Lease Agreement" ("Ground Lease") for the portion of the Property described on Exhibit
B" ("Leased Premises") which will permit Tenant to construct a four-sided tower
structure thereon for cellular telecommunications purposes, (together with any
replacements thereof constructed by or for Tenant or Owner, collectively the "Tower").
C. Owner has applied for Zoning Ordinance Amendment (ZOA) No. 2017-04
and Modification No. 2 to Commercial Planned Development (CPD) Permit No. 2004-
03, and Tenant has (with Owner's consent) applied for Conditional Use Permit (CUP)
No. 2016-05 to develop the Ground Lease portion of the Property with a Tower that
includes telecommunications facilities and signage for on-site businesses and a City
Welcome message.
ATTACHMENT 2
342
D ZOA No. 2017-04 was approved by the City Council on July 26, 2017 by
Ordinance No. 450. Modification No. 2 to CPD Permit No. 2004-03 and CUP No. 2016-
05 were approved by the City Council on July 19, 2017 by Resolution No. 2017-3614,
and were subject to conditions of approval.
E. City has required as a condition of approval of Modification No. 2 to CPD
Permit No. 2004-03 and CUP No. 2016-05 that Owner execute, acknowledge and
deliver this Agreement to City prior to issuance of a building permit for the Tower.
F. This Agreement was approved by the City Council on June 20, 2018,
subject to final language approval by the City Manager and City Attorney.
G. This Agreement is to be recorded in order to evidence the Modification No.
2 to CPD Permit No 2004-03 and CUP No. 2017-04 and the permit condition and
provides that Owner provide and maintain, or cause Tenant to provide and maintain,
certain City signs on the Tower, to maintain such signs for as long as the Tower exists,
that Owner shall maintain such signs after the expiration or earlier termination of the
Ground Lease.
H. In 2005, the City entered into a Development Agreement with NLA 118,
LLC that applies to the Property and required, in Section 6. 10 of that Development
Agreement, that the owner provide an easement to the City for a "City Welcome Sign"
and to pay the City $25,000 to construct that sign. The obligations of Section 6.10 of
the 2005 Development Agreement have been satisfied and those obligations are
separate from the obligations provided in this Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and other good
and valuable consideration, the sufficiency of which is hereby acknowledged, the parties
hereto hereby agree as follows:
AGREEMENT
1. Installation and Renovation of City Signs. Owner shall install, or shall
cause Tenant to (i) install City signs as described on Exhibit "C" at the locations on the
Tower that are also described on Exhibit "C", at Owner's or Tenant's cost and expense
before the Tower is used or operated; and (ii) update/renovate the City signs as
requested by City in writing within sixty (60) days after the applicable request, at no cost
to City, not more than once every five (5) calendar years after the date of this
Agreement. City may update/renovate the City signs, at City's cost, at any time and
from time to time.
If Owner fails to comply with item (i) or (ii) above with respect to a City
sign, the Owner shall pay to City the sum of One Hundred and No/100 Dollars ($100.00)
for the applicable sign per day as liquidated damages until such failure is cured.
IF OWNER FAILS TO TIMELY COMPLY WITH ITEM (i) OR (ii) CITY
WILL BE DAMAGED AND WILL BE ENTITLED TO COMPENSATION FOR THOSE
DAMAGES, BUT SUCH DAMAGES WILL BE EXTREMELY DIFFICULT AND
IMPRACTICAL TO DETERMINE, AND OWNER DESIRES TO LIMIT THE AMOUNT
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OF DAMAGES FOR WHICH OWNER MIGHT BE LIABLE. CITY AND OWNER ALSO
WISH TO AVOID THE COSTS AND LENGTHY DELAYS THAT WOULD RESULT IF
CITY FILED A LAWSUIT TO COLLECT ITS DAMAGES. CONSEQUENTLY, OWNER
AND CITY AGREE THAT THE PER DIEM SUM DESCRIBED ABOVE IS A
REASONABLE ESTIMATE OF CITY'S DAMAGES AND SHALL BE RETAINED BY
CITY AS LIQUIDATED DAMAGES AS CITY'S SOLE AND EXCLUSIVE DAMAGES
REMEDY (BUT WITHOUT LIMITING THE CITY'S OTHER REMEDIES). CITY AND
OWNER ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTAND THE
PROVISIONS OF THIS SECTION AND BY THEIR INITIALS IMMEDIATELY BELOW
AGREE TO BE BOUND BY ITS TERMS.
THE PARTIES ACKNOWLEDGE THAT THE PAYMENT OF SUCH
LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY BUT
IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO CITY PURSUANT TO
CALIFORNIA CIVIL CODE SECTION 1671.
CI 'S INITIALS O R'S INITIALS
2. Tower Construction. Owner shall cause Tenant to construct the Tower
in compliance with the City's adopted version of the California Building Code, which
includes amendments for cellular tower construction contained in City of Moorpark
Ordinance No. 456 relating to earthquake hazard reduction for telecommunication and
broadcast towers.
3. Maintenance. Owner shall, or shall cause Tenant to, maintain and repair
the Tower and Signs in good condition and repair at all times. Additionally, Owner shall
obtain and pay for electricity to illuminate the Signs.
If Owner continues to fail to comply with its maintenance or repair
obligations for a City sign seven (7) days after written notice from City of such failure,
then Owner shall pay to City the sum of One Hundred and No/100 Dollars ($100.00) per
day after the date of such notice for the applicable sign as liquidated damages until
such failure is cured.
IF OWNER FAILS TO COMPLY WITH ITS MAINTENANCE
OBLIGATIONS, CITY WILL BE DAMAGED AND WILL BE ENTITLED TO
COMPENSATION FOR THOSE DAMAGES, BUT SUCH DAMAGES WILL BE
EXTREMELY DIFFICULT AND IMPRACTICAL TO DETERMINE, AND OWNER
DESIRES TO LIMIT THE AMOUNT OF DAMAGES FOR WHICH OWNER MIGHT BE
LIABLE. CITY AND OWNER ALSO WISH TO AVOID THE COSTS AND LENGTHY
DELAYS THAT WOULD RESULT IF CITY FILED A LAWSUIT TO COLLECT ITS
DAMAGES. CONSEQUENTLY, OWNER AND CITY AGREE THAT THE PER DIEM
SUM DESCRIBED ABOVE IS A REASONABLE ESTIMATE OF CITY'S DAMAGES
AND SHALL BE RETAINED BY CITY AS LIQUIDATED DAMAGES AS CITY'S SOLE
AND EXCLUSIVE DAMAGES REMEDY (BUT WITHOUT LIMITING ANY OF THE
CITY'S OTHER REMEDIES). CITY AND OWNER ACKNOWLEDGE THAT THEY
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HAVE READ AND UNDERSTAND THE PROVISIONS OF THIS SECTION AND BY
THEIR INITIALS IMMEDIATELY BELOW AGREE TO BE BOUND BY ITS TERMS.
THE PARTIES ACKNOWLEDGE THAT THE PAYMENT OF SUCH
LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY BUT
IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT
TO CALIFORNIA CIVIL CODE SECTION 1671.
C` INITIALS OW R'S INITIALS
4. City Welcome Signage or Tower Removal or Modification. Owner shall
obtain approval from the City Council prior to removal or modification of City of
Moorpark welcome signage or removal or modification of the Tower, except in the event
of emergency demolition as a result of the Tower being in an unsafe condition and
posing an imminent hazard, whereby the City Manager may authorize Tower removal.
5. Term. This Agreement shall continue for as long as the Tower exists, and
shall survive the expiration or earlier termination of the Ground Lease for so long as the
Tower exists.
6. Property Taxes and Assessments. Owner shall pay (or shall cause
Tenant to pay) all property taxes and assessments on the Leased Premises.
7. Indemnity. Owner shall defend, indemnify, with counsel of the City's
choice, and hold harmless, the 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, the performance of
Owner's obligations hereunder, or the performance thereof by Tenant on Owner's
behalf and for the construction or use of the Tower. In addition, Owner shall defend,
indemnify, with counsel of the City's choice, and hold harmless, the 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, the environmental
documents prepared and approved in connection with the approval of the Project, or
any modifications thereto, or any other subsequent entitlements for the project and
including any related environmental approval. Owner's obligations under this section
shall survive the expiration of this Agreement.
8. Terms of this Agreement as Covenants Running With the Land:
Successors and Assigns. The terms of this Agreement constitute covenants running
with the land which bind the Owner's fee interest in the Leased Premises, and shall be
binding upon all successors to any portion of or interest in said fee interest.
9. Violation of this Agreement. Should Owner fail to perform the
obligations imposed by this Agreement, then in addition to any other rights or remedies
at law or in equity, and such failure continues for seven (7) days after delivery by City to
Owner of written notice of the failure, then City shall have the right to enter upon the
Leased Premises to cure the default and all costs and expenses incurred by City to cure
the default shall be paid by Owner within ten (10) days after written demand from City
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345
with evidence of the costs and expenses. The foregoing shall not limit City's other
rights and remedies for any such failure, including without limitation its rights and
remedies for any violations of permits or applicable laws.
10. Attorneys' Fees. If any legal action or other proceeding is brought for the
enforcement or interpretation of this Agreement, or because of an alleged dispute,
breach, default, or misrepresentation in connection with any of the provisions of this
Agreement, the successful or prevailing party or parties shall be entitled to its/their
actual attorneys' fees and other costs incurred in that action or proceeding, in addition
to any other relief to which it/they may be entitled.
11. Governing Law and Jurisdiction. This Agreement is made under, and
shall be construed in accordance with, the substantive law of the State of California
without regard to choice of law principles. Any action brought to interpret or enforce any
term or provision hereof shall be filed and maintained solely in a court of competent
jurisdiction situated in one of the following counties, as mutually agreed toby the
Parties: Ventura, Santa Barbara, Los Angeles, Orange or Riverside.
12. Rules of Construction. The Parties, including their counsel, have
participated in the preparation of this Agreement, and this Agreement is the result of the
joint efforts of the Parties. This Agreement has been accepted and approved as to its
final form by all Parties and upon the advice of their respective counsel. Accordingly,
any uncertainty or ambiguity existing in this Agreement shall not be interpreted against
any Party as a result of the manner of the preparation of this Agreement. Each Party to
this Agreement agrees that any statute or rule of construction providing that ambiguities
are to be resolved against the drafting Party shall not be employed in the interpretation
of this Agreement and are hereby waived.
13. Severability. Any provision of this Agreement that is declared or
determined by a court of competent jurisdiction to be prohibited or otherwise held
invalid, void, or unenforceable shall be ineffective only to the extent of such prohibition
or invalidity, and shall not invalidate or otherwise render ineffective any of the remaining
provisions hereof. Notwithstanding the foregoing, if the provisions of Section 2, 3, 4, or
6 of this Agreement are declared invalid, void or unenforceable, such determination
shall not be severable from the rest of the Agreement and the entire Agreement shall
become void and unenforceable.
14. Entire Agreement. This Agreement constitutes the entire agreement
among the parties hereto pertaining to the subject matter hereof and supersedes all
prior and contemporaneous agreements and understandings of the parties. No
supplementation, modification, waiver or termination of this Agreement shall be binding
unless by a written instrument by the City and the then-current owner(s) of the Leased
Premises, and recorded in the office of the Ventura County Recorder. The foregoing
shall not limit City's rights and remedies for any violations of permits or applicable laws.
15. Amendments or Modifications. This Agreement may be amended or
modified by the mutual consent and agreement of the Parties in writing.
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16. Effective Date. This Agreement shall become effective on the date that
both Parties have executed the Agreement.
17. Headings. The headings of sections of this Agreement are inserted solely
for the convenience of reference and are not a part of and are not intended to govern,
limit, or aid in the construction or interpretation of any term or provision hereof.
18. Counterparts. This Agreement may be executed in one or more separate
counterparts, each of which shall be deemed an original and all of which together shall
constitute one and the same instrument.
19. Time of Essence. Time is of the essence of every provision hereof in
which time is a factor.
20. Notices. All notices and demands shall be given in writing by certified
mail, postage prepaid, and return receipt requested, or by reputable overnight
messenger. Notices shall be considered given upon the earlier of (a) one business day
following deposit or delivery with a nationally recognized overnight courier delivery
charges prepaid, or (b) upon delivery or attempted delivery as shown on the return
receipt if sent by certified mail. Notices shall be addressed as provided below for the
respective party; provided that if any party gives notice in writing of a change of name or
address, notices to such party shall thereafter be given as demanded in that notice and
provided, further, that notices to successors-in-interest shall be given as directed by
such successors-in-interest:
The City: City of Moorpark
799 Moorpark Avenue
Moorpark, California 93021
Attn: City Manager
Owner: NLA 14339, LLC
14349 White Sage Rd.
Moorpark, CA 93021
Attn: Tom Schlender
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21. Effective Ground Lease. Owner's obligations hereunder are not
conditioned upon the execution of the Ground Lease.
IN WITNESS WHEREOF, this Agreement has been executed to be effective as •
of the date first written above.
OWNER: CITY:
NLA 14339, LL CITY OF MOORPARK
By: ' ` 'By:
nice S. ParvinY'Schlender,jTanager ayor
Attest:
Maureen Benson, City Clerk
IPSWATIOk: -to
4'
re.; a
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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 Ventura
II n
On —3 .`) 13= 2 0t 8 , before me,0AJ r'4.1";-11 ‘ /11e I`, 1tc_..
ins name and title of e officer)
Notary Public, personally appeared 7.--,..e S t fc.'.. -r/
who proved to me on the basis of satisfactory evidence to be the person'whose
names) is/ar, subscribed to the within instrument and acknowledged to me that.
he/sVt/thIy executed the same in his/hsi-/th it authorized capacity(ied), and that by
his/frith/lir signature(9 on the instrument the personp?j, or the entity upon behalf of
which the person(y) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
110.
DAVID M.TALLEY
Notary Public-CaliforniaSignaturefSeal) _ Ventura County y
2 `'
4.' Commission N 2205274
v..,,,My Comm.Expires Jul 15,2021
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CITYOFMOORPARK
799 Moorpark Avenue,Moorpark,California 93021 I Phone(805)517-6200 I Fax(805)532-2205
447.f0 .
0y(
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.
PUBLIC AGENCY FORM OF ACKNOWLEDGMENT
STATE OF CALIFORNIA )
COUNTY OF VENTURA ) ss.
CITY OF MOORPARK
On this 20th day of July in the year 2018, before me, Maureen Benson, City Clerk of the
City of Moorpark, personally appeared Janice S. Parvin, who proved to me on the basis of
satisfactory evidence to be the person whose name is subscribed to the within instrument and
who is personally known to me to be the person whose name is subscribed to the within
instrument and acknowledged to me that she executed the same in her authorized capacity as
the Mayor of the City of Moorpark, and that by her signature on the instrument, acknowledged
to me that the City executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
Witness my hand and Official Seal
10_i
Maureen Benson 11k m
City Clerk T
4o4
ft6'/
41"etD .uL:
JANICE S.PARVIN ROSEANN MIKOS,Ph.D DAVID POLLOCK KEN SIMONS MARK VAN DAM
Mayor Councilmember Councilmember Councilmember Councilmember350
EXHIBIT "A"
OWNER'S PROPERTY
14339 White Sage Road 93021, in the City of Moorpark, County of Ventura, State of
California (APN: 513-0-050-315), more particularly described as follows:
PARCEL A:
PARCEL 2 OF PARCEL MAP NO. 5532, IN THE CITY OF MOORPARK, COUNTY OF
VENTURA, STATE OF CALIFORNIA, AS SHOWN ON A PARCEL MAP FILED IN
BOOK 65 PAGES 7, 8 AND 9 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY.
EXCEPT ONE-HALF OF 24/40THS INTEREST OF ALL OIL AND MINERAL RIGHTS
BELOW 500 FEET FROM THE SURFACE, BUT WITHOUT THE RIGHT OF SURFACE
ENTRY, AS RESERVED BY VIVIAN AGOURE ESCALLIER, ET AL., IN DEED
RECORDED SEPTEMBER 11, 1963 IN BOOK 2390 PAGE 306, OF OFFICIAL
RECORDS
ALSO EXCEPT ONE-HALF OF 13/40THS INTEREST OF ALL OIL AND MINERAL
RIGHTS BELOW 500 FEET FROM THE SURFACE, WITHOUT THE RIGHT OF ENTRY,
AS RESERVED BY PETER VAIL, AS GUARDIAN OF THE ESTATE OF ANGELE
AGOURE VAIL, AN INCOMPETENT PERSON, IN DEED RECORDED OCTOBER 17,
1963 IN BOOK 2410, PAGE 561 OF OFFICIAL RECORDS.
ALSO EXCEPT 25% OF ALL MINERALS, COAL, OIL, PETROLEUM, GAS,
ASPHALTUM AND KINDRED SUBSTANCES, NOW OR HEREAFTER IN OR UNDER
SAID LAND BELOW A DEPTH OF 500 FEET FROM THE SURFACE THEREOF
WITHOUT THE RIGHT OF SURFACE ENTRY, AS RESERVED IN DEED DATED
DECEMBER 13, 1966 FROM MILAN ROVEN AND ABRAHAM SPIEGEL, RECORDED
DECEMBER 20, 1966, IN BOOK 3081, PAGE 337 OF OFFICIAL RECORDS.
ALSO EXCEPT ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL
GAS, NATURAL GAS RIGHTS AND OTHER HYDROCARBON SUBSTANCES BY
WHATSOEVER NAME KNOWN THAT MAY BE BELOW THE UPPER 100 FEET OF
THE SUBSURFACE OF SAID LAND, WITHOUT, HOWEVER, THE RIGHT OF
SURFACE ENTRY, AS EXCEPTED IN DOCUMENT RECORDED MAY 22, 1969, IN
BOOK 3492, PAGE 234 OF OFFICIAL RECORDS.
PARCEL B.
AN EASEMENT FOR ACCESS, INGRESS AND EGRESS, PUBLIC UTILITIES AND
INCIDENTAL PURPOSES OVER THAT PORTION OF LOT 3 OF TRACT NO. 5004, IN
THE CITY OF MOORPARK, COUNTY OF VENTURA, STATE OF CALIFORNIA, AS
PER MAP RECORDED IN BOOK 137, PAGES 97 TO 102 INCLUSIVE OF MAPS, IN
THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, SHOWN AND
DELINEATED ON THE MAP OF SAID TRACT AS "WHITE SAGE ROAD (PRIVATE
STREET)".
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EXHIBIT "B"
LEASED PREMISES
An approximately sixteen foot, ten-inch (16' — 10") by sixteen foot, ten inch (16' — 10")
parcel containing approximately 283 square feet, as depicted on Exhibit "B" to the Land
Lease Agreement.
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EXHIBIT "C"
DESCRIPTION OF CITY SIGNS (INCLUDING
LOCATIONS ON PROPOSED TOWER)
Locations: Top of the tower on the north, south and west sides, as shown on the
attached diagram. (East side wall not have signage.)
Number/Design: Three signs, up to 40 square feet each, with City to determine size of
letters, font, color and message. The quality of materials is to be the same or better as
those for tenant signage on tower, with channel letters with 2" to 4" deep returns
depending on the size and style of the lettering). Signs are to be externally lit by
spotlights on each of the sides with signage, with lighting subject to review and approval
by the Community Development Director.
Plans: Signage plans shall be consistent with those approved by the City Council on
June 20, 2018, as shown on the attached diagram. (East side wall not have
signage.)
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PAGE
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PAGE 2
PROPOSED SIGN SPECIFICATIONS
PROPOSED SIGN SPECIFICATIONS
LETTERS ON TOWER SHALL BE BLACK HALO
REVERSE LIT CHANNEL LETTERS ILLUMINATED WITH WHITE LEDS 1 SET CHANNEL LETTER WDC
LETTERS TO BE BLACK 4 DEEP RETURNS PAINTED TO MATCH LETTERS LETTERS TO BE WHITE PLEXIGLAS WITH PREFORATED BRUSHED ALUIVIINUM OVERLAY
4"DEEP RETURNS TO BRUSHED ALUMINUM
ILLUMINATED WITH WHITE LEDS
11' I 9'.3' i 4"DEEP RETURNS TO BRUSHED ALUMINUM
KITCHEN & BATH L
r------- 8'9'------- ILLUMINATED WI fH WHITE LEDS
12"IO" fHRLO LIGHT
CENTER10" 1 ,
5 "3' 8 9 P 4"DEEP RETURNS TO BRUSHED ALUMINUM
I 5' — --4 1 ILLUMINATED WITH WHITE LEDS
HAI O LIGHT
PROPOSED WDC KITCHEN&BATH=52 SQ.F L
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14
22"
12.75"
10%10"- — i
15 sq.ft. THE CITY LOGO SHALL BE BLACK 4"THICK PVC LETTERS
THE SECOND LINE OF COPY SHALL BE BLACK 2 THICK PVC LETTERS
EXTERNALLY ILLUMINATED BY LED SPOT LIGHT PROVIDED BY
VERIZON AND NOT CONEJO VALLEY SIGNS
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CERTIFICATE OF ACCEPTANCE
California Government Code Section 27281)
This is to certify that to the extent the attached City Sign Agreement and
Conditions, Covenants and Restrictions is construed to be an easement or other
interest in real property held by the City of Moorpark, such interest is hereby accepted
by the undersigned officer on behalf of the City of Moorpark pursuant to the authority
conferred by action of the City of Moorpark on June 20, 2018, and the grantee consents
to recordation thereof by its duly authorized officer.
Dated' 17/A.3 , 2018
B wn,
City Manager
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356
MOORPARKCITYOF
ar,
Morro: y 799 Moorpark Avenue,Moorpark,California 93021 1 Phone(805)517-6200 1 Fax(805)532-2205
4°
agTU JJy-t
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.
PUBLIC AGENCY FORM OF ACKNOWLEDGMENT
STATE OF CALIFORNIA )
COUNTY OF VENTURA ) ss.
CITY OF MOORPARK
On this 23rd day of July in the year 2018, before me, Maureen Benson, City Clerk of the
City of Moorpark, personally appeared Troy Brown, who proved to me on the basis of
satisfactory evidence to be the person whose name is subscribed to the within instrument and
who is personally known to me to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized capacity as
the City Manager of the City of Moorpark, and that by his signature on the instrument,
acknowledged to me that the City executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
Witness my hand and Official Seal
j,
v
Maureen Benson R arE `City Clerk
JANICE S PARVIN ROSEANN MIKOS,Ph.D DAVID POLLOCK KEN SIMONS MARK VAN DAM
Mayor Councilmember Councilmember Councilmember Councilmember 357
I
NLA 118, L .. LC.
14349 White Sage Road
Moorpark, CA 93021
AUG 2 2 2022
t.il'Y Of MOORPARK at: ru,.,
! nt:
City of Moorpark
799 Moorpark A venue
Moorpark, CA 93021
Attn: Troy Brown, City Manager
August 16, 2022
Re: Development Agreement between NLA 118, L.L.C.("Developer") and the City of
Moorpark
Dear Mr. Brown,
Developer entered into a Development Agreement with the City of Moorpark which in section
6.10 required Developer to pay $25,000 to the City for the construction and erection of a City
Welcome Sign. Developer paid the $25,000.
In 2018, the City and a related entity to Developer (NLA 14339, LLC, a Delaware limited liability
company), entered into an agreement entitled "City Sign Agreement and Conditions, Covenants
and Restrictions," that permitted the erection of a four-sided tower structure for cellular
telecommunications purposes and which provided for the terms and conditions for the installation,
maintenance and replacement of a city identification sign on the tower.
The tower has been erected and a City Welcome Sign was installed on it at Developer's cost.
Since the Developer installed the City Welcome Sign at its cost, Developer hereby requests the
return of the $25,000 paid to the City as part of the Development Agreement to avoid Developer
paying twice for the same sign.
Sincerely,
c:\users\tom.schlender\appdata\local\microsoft\windows\inetcache\content.outlook\tjzb0z36\nla 118 It to city re sign refund
(002).docx
ATTACHMENT 3
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ATTACHMENT 4
CITY OF MOORPARK
CITY MANAGER'S OFFICE I 799 Moorpark Avenue, Moorpark, California 93021
Main City Phone Number (805) 517 -6200 I Fax (805) 532 -2528 I moorpark@moorparkca.gov
August 24, 2022
Mr. Thomas J. Schlender
NLA 118, L.LC.
14349 White Sage Road
Moorpark, CA 93021
Re: Development Agreement between NLA 118, L.L.C. ("Developer") and the
City of Moorpark
Dear Mr. Schlender,
Thank you for contacting the City of Moorpark (City). I would like to acknowledge that I
am in receipt of your letter dated August 16, 2022, regarding the $25,000 paid to the City
for installation of a City Welcome Sign. In the letter you reference an agreement between
the City and NLA 14339, LLC titled "City Sign Agreement and Conditions, Covenants and
Restrictions" (City Sign Agreement). The agreement outlines the terms and conditions for
the construction of a four-sided tower structure for cellular telecommunications purposes
and how the installation and construction of said sign met the terms of Section 6.10 of the
Development Agreement related to a City monument sign.
Both the Development Agreement and the City Sign Agreement are legally binding
agreements entered into between the parties and have been subsequently recorded on
the property. The execution and recordation of these agreements assert the concurrence
between the parties on the terms within the agreements. At the time of execution of the
City Sign Agreement, the parties were aware of Section 6.10 of the Development
Agreement which provided for the $25,000 contribution for the installation of a City sign.
This was acknowledged in recital H of the City Sign Agreement which states:
"H. In 2005, the City entered into a Development Agreement with NLA 118, LLC
that applies to the Property and required, in Section 6. 10 of that Development
Agreement, that the owner provide an easement to the City for a "City Welcome
Sign" and to pay the City $25,000 to construct that sign. The obligations of
Section 6. 10 of the 2005 Development Agreement have been satisfied and
those obligations are separate from the obligations provided in this
Agreement." [Emphasis added]
Accordingly, as outlined in the City Sign Agreement, the City accepted the terms of both
the Development Agreement and the City Sign Agreement and finds no cause to justify
the refunding the $25,000 payment that has been received consistent with Section 6.10
of the Development Agreement.
J AN ICE S. PARVIN DR. ANTONIO CASTRO
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CHRIS ENEGREN
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DANIEL GROFF
C:ouncilrnernber
DAVID POLLO CK
Co uncil rnember
359
Thomas Schlender
August 24, 2022
Page 2
Although the agreements outline the terms of the development of the property and the
installation of a telecommunications facility within the project, I would be happy to discuss
the terms of the agreements to further understand your concerns around this matter. Feel
free to contact me at (805) 517 -6212 anytime during regular business hours .
Sincerely,
Troy Brown
City Manager
360
ATTACHMENT 5
RESOLUTION NO. 2022-____
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
MOORPARK, CALIFORNIA, AUTHORIZING THE REFUND IN THE
AMOUNT OF TWENTY-FIVE THOUSAND DOLLARS ($25,000) TO
NLA 118, LLC, FOR A CONTRIBUTION FOR A CITY WELCOME
SIGN PER THE TERMS OF THE DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF MOORPARK AND TOM SCHLENDER
ON BEHALF OF NLA 118, LLC
WHEREAS, on October 19, 2005, the City Council adopted Ordinance No. 322
authorizing a Development Agreement (DA) between the City of Moorpark and
NLA 118, LLC, and on October 5, 2005, the City Council adopted Resolution No. 2005-
2398 approving General Plan Amendment (GPA) No. 2004-04, Commercial Planned
Development (CPD) No. 2004-03, and Conditional Use Permit (CUP) No. 2005-04 for
the construction and operation of a 115,000 square-foot appliance store with distribution
and warehousing (Warehouse Discount Center); and
WHEREAS, Section 6.10 of the DA required the Developer to provide twenty-five
thousand dollars ($25,000) and an easement to the City for the future installation of a
City Welcome Sign. Payment in the amount of $25,000 was received in April 2007 and
deposited into Fund 2007 (Art in Public Places); and
WHEREAS, on December 22, 2014, an application for CUP No. 2014-09 and
Modification No. 1 to CPD No. 2004-03 was submitted for a Major Wireless
Communication Facility consisting of 12 panel antennas and installation of an above
ground equipment enclosure within a 48-foot high tower at 14339 White Sage Road;
and
WHEREAS, on July 19, 2017, the City Council adopted Resolution No. 2017-
3614, approving Modification No. 2 to CPD Permit No. 2004-03 and CUP No. 2016-05
for a 48-foot high wireless communication tower at 14339 White Sage Road; and
WHEREAS, on June 20, 2018, the City Council approved a City Sign Agreement,
by and between NLA 14339, LLC and the City of Moorpark to establish objective
standards for the siting of the cell tower/City Welcome Sign. Recital H of the Sign
Agreement states:
“In 2005, the City entered into a Development Agreement with NLA 118, LLC that
applies to the Property and required, in Section 6.10 of that Development
Agreement, that the owner provide an easement to the City for a “City Welcome
Sign” and to pay the City $25,000 to construct that sign. The obligations of
Section 6.10 of the 2005 Development Agreement have been satisfied and those
obligations are separate from the obligations provided in this Agreement;” and
361
Resolution No. 2022-____
Page 2
WHEREAS, the City has not constructed a City Welcome Sign on the property
and the owner has requested a refund in the amount of $25,000 intended for the City
Welcome Sign.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK
DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. That the City Manager and/or his designee is authorized to execute
a refund in the amount of twenty-five thousand dollars ($25,000) to Tom Schlender on
behalf of NLA 118, LLC from Fund 2007 (Arts in Public Places).
SECTION 2. The City Clerk shall certify to the adoption of this resolution and
shall cause a certified resolution to be filed in the book of original resolutions.
PASSED AND ADOPTED this 2nd day of November, 2022.
____________________________________
Janice S. Parvin, Mayor
ATTEST:
____________________________________
Ky Spangler, City Clerk
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