HomeMy WebLinkAboutAGENDA REPORT 2024 0117 CCSA REG ITEM 10HCITY OF MOORPARK, CALIFORNIA
City Council Meeting
of January 17, 2024
ACTION APPROVED STAFF
RECOMMENDATIONS.
BY A. Hurtado.
H. Consider Agreements with the State of California, Department of Transportation
(Caltrans), and Moorpark Casey Road, L.P. for the Maintenance of Landscape,
Irrigation, and Other Improvements within the State’s Right-of-Way on Walnut
Canyon Road; and Making a Determination of Exemption Under the California
Environmental Quality Act in Connection Therewith. Staff Recommendation: 1)
Approve Landscape Maintenance Agreement with the State of California,
Department of Transportation, for Landscape Maintenance Operations within the
State’s Right-of-Way on Walnut Canyon Road, subject to final language approval
of the City Manager and City Attorney; and 2) Approve Agreement with Moorpark
Casey Road, L.P., for Landscape Maintenance Operations within the State’s Right-
of-Way on Walnut Canyon Road, subject to final language approval of the City
Manager and City Attorney. (Staff: Jeremy Laurentowski, Park and Recreation
Director)
Item: 10.H.
MOORPARK CITY COUNCIL
AGENDA REPORT
TO: Honorable City Council
FROM: Jeremy Laurentowski, Parks and Recreation Director
DATE: 01/17/2024 Regular Meeting
SUBJECT: Consider Agreements with the State of California, Department of
Transportation (Caltrans), and Moorpark Casey Road, L.P. for the
Maintenance of Landscape, Irrigation, and Other Improvements within
the State’s Right-of-Way on Walnut Canyon Road; and Making a
Determination of Exemption Under the California Environmental
Quality Act in Connection Therewith
BACKGROUND
In 2018, the City Council directed staff to initiate the creation of Community Facilities
Districts (CFDs), rather than Lighting and Landscaping Districts for the maintenance of
all public improvements associated with future development projects. A CFD is a special
tax district provided for in State law that funds public improvements and on-going services
within an identified area. The Mello-Roos Community Facilities District Act of 1982
authorizes local governments to create CFDs for the purpose of selling tax exempt bonds
to fund public improvements and collect revenues to pay for public improvements. Also
authorized is the collection of revenue to fund services and maintenance associated with
the new development (a CFD by utilizing Government Code 53311-53368.3 for
maintenance of facilities and services). Requirements of creating a CFD include several
procedural actions, such as an application, petition, Resolution of Intention including Rate
and Method of Apportionment and Boundary Map, Resolution of Formation, property
owner election, Public Hearing, and recordation of Notice of Special Tax.
In order to move forward with the creation of future CFDs, in 2023 staff solicited the
services from qualified consulting firms and the City Council ultimately authorized staff to
enter into agreements with Willdan Financial Services (Willdan) and Jones Hall.
Additionally in 2023, a developer for a new development project, Danco Communities on
behalf of Moorpark Casey Road, L.P. (Danco), requested the creation of a CFD to fund
the public improvements associated with their development project, Vendra Gardens.
The creation of the CFD is a requirement of the Development Agreement for Vendra
Gardens and requires Danco to pay for, cooperate in the formation of, and assist the City
in establishing the CFD.
Item: 10.H.
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Honorable City Council
1/17/2024 Regular Meeting
Page 2
DISCUSSION
The procedural documents associated with the formation of the Vendra Gardens CFD are
currently being prepared by Willdan and Jones Hall. Staff anticipates that the formation
of the CFD will be completed in the summer of 2024. The Vendra Gardens CFD
contemplates the inclusion of maintenance of improvements within the State of California,
Department of Transportation (Caltrans) right-of-way on Walnut Canyon Road, as well as
the median islands on Casey Road. Additionally, the CFD areas will include the storm
water quality basins, drainage improvements, an emergency access road for the project,
slope landscaping, retaining walls, and sidewalk on the City-owned parcel located to the
south of the Vendra Gardens property, on the north side of the future High Street
extension.
On September 13, 2023, Danco submitted plans to Caltrans and requested an
Encroachment Permit to install improvements within the State’s right-of-way (right-of-
way). The improvements include a portion of the median island and striping on Casey
Road that extends into the right-of-way on Walnut Canyon Road, and a sidewalk,
landscaping, and the realignment of a storm drain on Walnut Canyon Road. Danco’s
request was not approved by Caltrans due to a variety of plan revisions, as well as the
requirement for a Landscape Maintenance Agreement (LMA) to be executed by the City.
Several years ago, Caltrans determined that they will not allow private businesses,
organizations, or individuals to maintain improvements within the right-of-way.
It is anticipated that the formation of the Vendra Gardens CFD will be completed this year.
However, there could potentially be an eighteen to twenty-four month gap between the
time the CFD is formed and the time that the CFD is ultimately funded. This is due to the
fact that the maintenance costs associated with the CFD are levied through property
taxes. The County Auditor enters on the County assessment roll the levy for each parcel
or property that has been established to cover these costs. The assessments are
collected at the same time and in the same manner as County taxes are collected and all
laws providing for the collection and enforcement of County taxes apply to the collection
and enforcement of the assessments. After collection by the County, the net amount of
the assessments are paid to the City. Additionally, a provision of the City’s Landscape
Design Guidelines and Standards (Resolution No. 2012-3096), requires a one-year
maintenance period for all City maintained areas in order to ensure the survivability of the
plant material and to validate the quality of installation of all improvements within the CFD,
such as irrigation and lighting systems, storm water basins, and drainage improvements.
Because of this potential funding gap, there is a possibility that the improvements on
Walnut Canyon Road could be completed before there is funding available to cover the
maintenance costs for the improvements.
Since the City is obligated under the LMA for the maintenance of the improvements, and
due to the fact that there is the potential that the CFD will not be funded by the time the
improvements are completed, staff is recommending a separate agreement with Danco
related to the reimbursement of the maintenance costs for the improvements within the
right-of-way until the CFD is fully funded and accepted by the City.
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Honorable City Council
1/17/2024 Regular Meeting
Page 3
ENVIRONMENTAL DETERMINATION
The California Environmental Quality Act (CEQA) does not apply to activities that will not
result in a direct or reasonably foreseeable indirect physical change in the environment
or is otherwise not considered a project as defined by CEQA Statute §21065 and CEQA
State Guidelines §15060(c)(3) and §15378. The creation of a CFD, and associated
maintenance agreements, meet the above criteria and are not subject to CEQA. No
additional environmental review is required.
FISCAL IMPACT
There is no fiscal impact to the City. All associated costs will be paid by the developer.
COUNCIL GOAL COMPLIANCE
This action does not support a current strategic directive.
STAFF RECOMMENDATION
1. Approve Landscape Maintenance Agreement with the State of California,
Department of Transportation, for Landscape Maintenance Operations within the
State’s Right-of-Way on Walnut Canyon Road, subject to final language approval
of the City Manager and City Attorney; and
2. Approve Agreement with Moorpark Casey Road, L.P., for Landscape Maintenance
Operations within the State’s Right-of-Way on Walnut Canyon Road, subject to
final language approval of the City Manager and City Attorney.
Attachment 1: Landscape Maintenance Agreement between the State of California,
Department of Transportation and City of Moorpark
Attachment 2: Agreement between City of Moorpark and Moorpark Casey Road, L.P.
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LANDSCAPE MAINTENANCE AGREEMENT
WITH THE CITY OF MOORPARK
THIS AGREEMENT is made effective this ______ day of ____________, 20__, by and between
the State of California, acting by and through the Department of Transportation,
hereinafter referred to as “STATE” and the CITY of Moorpark; hereinafter referred to as
“CITY” and collectively referred to as “PARTIES”.
1.The PARTIES hereto mutually desire to identify the maintenance responsibilities of
CITY for newly constructed or revised improvements within STATE’s right of way by
Permit Number 07-23-6-CD-1999.
2.This Agreement addresses CITY responsibility for the concrete, irrigation, and
planting (collectively the “LANDSCAPING”) placed within State Highway right of
way on State Route 23, as shown on Exhibit “A”, attached to and made a part of
this Agreement.
3.Maintenance responsibilities that include, but are not limited to, inspection,
providing emergency repair, replacement, and maintenance, (collectively
hereinafter “MAINTAIN/MAINTENANCE”) of LANDSCAPING as shown on said
Exhibit “A”.
4.The degree or extent of maintenance work to be performed, and the standards,
therefore, shall be in accordance with the provisions of Section 27 of the Streets
and Highways Code and the then current edition of the State Maintenance
Manual.
5.When a planned future improvement is constructed and/or a minor revision has
been affected with STATE’s consent or initiation within the limits of the STATE’s right
of way herein described which affects PARTIES’ division of maintenance
responsibility as described herein, PARTIES will agree upon and execute a new
dated and revised Exhibit “A” which will be made a part hereof and will thereafter
supersede the attached original Exhibit “A” to thereafter become a part of this
Agreement.
5.1. The new exhibit can be executed only upon written consent of the PARTIES
hereto acting by and through their authorized representatives.
6.CITY agrees, at CITY expense, to do the following:
6.1. CITY may install, or contract, authorizing a licensed contractor with
appropriate class of license in the State of California, to install and thereafter
will MAINTAIN LANDSCAPING conforming to those plans and specifications
(PS&E) pre-approved by STATE.
ATTACHMENT 1
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6.2. CITY will submit the final form of the PS&E, prepared, stamped and signed by
a licensed landscape architect, for LANDSCAPING to STATE’s District Permit
Engineer for review and approval and will obtain and have in place a valid
necessary encroachment permit prior to the start of any work within STATE’S
right of way. All proposed LANDSCAPING must meet STATE’s applicable
standards.
6.2.1. CITY contractors will be required to obtain an Encroachment Permit prior
to the start of any work within STATE’s right of way.
6.2.2. An Encroachment Permit rider may be required for any changes to the
scope of work allowed by this Agreement prior to the start of any work
within STATE's right of way.
6.3. CITY shall ensure that LANDSCAPED areas designated on Exhibit “A” are
provided with adequate scheduled routine MAINTENANCE necessary to
MAINTAIN a neat and attractive appearance including providing for water,
and fertilizer necessary to sustain healthy plant growth during the entire life of
this Agreement, including the following:
6.3.1. To prune shrubs, tree plantings, and trees to control extraneous growth
and ensure STATE standard lines of sight to signs and corner sight
distances are always maintained for the safety of the public.
6.3.2. To replace unhealthy or dead plantings when observed or within 30 days
when notified in writing by STATE that plant replacement is required.
6.3.3. To expeditiously MAINTAIN, replace, repair or remove from service any
LANDSCAPING system component that has become unsafe or unsightly.
6.4. To MAINTAIN, repair and operate the irrigation systems in a manner that
prevents water from flooding or spraying onto STATE highway, spraying parked
and moving automobiles, spraying pedestrians on public sidewalks/bike
paths, or leaving surface water that becomes a hazard to vehicular or
pedestrian/bicyclist travel.
6.5. To control weeds at a level acceptable to the STATE. Any weed control
performed by chemical weed sprays (herbicides) shall comply with all laws,
rules, and regulations established by the California Department of Food and
Agriculture. All chemical spray operations shall be reported quarterly (Form
LA17) to the STATE to: District 07 Maintenance at 100 S. Main Street, Los
Angeles. CA 90012.
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6.6. CITY shall ensure LANDSCAPING within the Agreement limits provide an
acceptable walking and riding surface, and will provide for the repair and
removal of dirt, debris, graffiti, weeds, and any deleterious item or material on
or about the LANDSCAPING in an expeditious manner.
6.7. To MAINTAIN all parking or use restrictions signs encompassed within the area
of the LANDSCAPING.
6.8. To remove LANDSCAPING and appurtenances and restore STATE owned
areas to a safe and attractive condition acceptable to STATE in the event this
Agreement is terminated as set forth herein.
7. STATE may provide CITY with timely written notice of unsatisfactory conditions that
require correction by the CITY. However, the non-receipt of notice does not
excuse CITY from maintenance responsibilities assumed under this Agreement.
8. STATE shall Issue encroachment permits to CITY at no cost to them.
9. LEGAL RELATIONS AND RESPONSIBILITIES:
9.1. Nothing within the provisions of this Agreement is intended to create duties or
obligations to or rights in third parties not party to this Agreement, or affect the
legal liability of either PARTY to this Agreement by imposing any standard of
care respecting the design, construction and maintenance of these STATE
highway improvements or CITY facilities different from the standard of care
imposed by law.
9.2. If during the term of this Agreement, CITY should cease to MAINTAIN the
LANDSCAPING to the satisfaction of STATE as provided by this Agreement,
STATE may either undertake to perform that MAINTENANCE on behalf of CITY
at CITY’s expense or direct CITY to remove or itself remove LANDSCAPING at
CITY’s sole expense and restore STATE’s right of way to its prior or a safe
operable condition. CITY hereby agrees to pay said STATE expenses, within
thirty (30) days of receipt of billing by STATE. However, prior to STATE
performing any MAINTENANCE or removing LANDSCAPING, STATE will provide
written notice to CITY to cure the default and CITY will have thirty (30) days
within which to affect that cure.
9.3. Neither CITY nor any officer or employee thereof is responsible for any injury,
damage or liability occurring by reason of anything done or omitted to be
done by STATE under or in connection with any work, authority or jurisdiction
arising under this Agreement. It is understood and agreed that STATE shall fully
defend, indemnify and save harmless CITY and all of its officers and
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employees from all claims, suits or actions of every name, kind and description
brought forth under, including, but not limited to, tortious, contractual, inverse
condemnation and other theories or assertions of liability occurring by reason
of anything done or omitted to be done by STATE under this Agreement with
the exception of those actions of STATE necessary to cure a noticed default
on the part of CITY.
9.4. Neither STATE nor any officer or employee thereof is responsible for any injury,
damage or liability occurring by reason of anything done or omitted to be
done by CITY under or in connection with any work, authority or jurisdiction
arising under this Agreement. It is understood and agreed that CITY shall fully
defend, indemnify and save harmless STATE and all of its officers and
employees from all claims, suits or actions of every name, kind and description
brought forth under, including, but not limited to, tortious, contractual, inverse
condemnation or other theories or assertions of liability occurring by reason of
anything done or omitted to be done by CITY under this Agreement.
9.5. PREVAILING WAGES:
9.5.1. Labor Code Compliance- If the work performed under this Agreement is
done under contract and falls within the Labor Code section 1720(a)(1)
definition of a "public works" in that it is construction, alteration,
demolition, installation, or repair; or maintenance work under Labor
Code section 1771. CITY must conform to the provisions of Labor Code
sections 1720 through 1815, and all applicable provisions of California
Code of Regulations found in Title 8, Chapter 8, Subchapter 3, Articles 1-
7. CITY agrees to include prevailing wage requirements in its contracts
for public works. Work performed by CITY'S own forces is exempt from the
Labor Code's Prevailing Wage requirements.
9.5.2. Requirements in Subcontracts - CITY shall require its contractors to include
prevailing wage requirements in all subcontracts when the work to be
performed by the subcontractor under this Agreement is a "public works"
as defined in Labor Code Section 1720(a)(1) and Labor Code Section
1771. Subcontracts shall include all prevailing wage requirements set
forth in CITY's contracts.
10. INSURANCE - CITY and its contractors shall maintain in force, during the term of this
AGREEMENT, a policy of general liability insurance, including coverage of bodily
injury liability and property damage liability, naming the STATE, its officers, agents
and employees as the additional insured in an amount of $1 million per
occurrence and $2 million in aggregate and $5 million in excess. Coverage shall
be evidenced by a certificate of insurance in a form satisfactory to the STATE that
shall be delivered to the STATE with a signed copy of this Agreement.
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10.1. SELF-INSURED - CITY is self-insured. CITY agrees to deliver evidence of self-
insured coverage providing general liability insurance, coverage of bodily
injury liability and property damage liability, naming STATE, its officers, agents
and employees as the additional insured in an amount of $1 million per
occurrence and $2 million in aggregate and $5 million in excess. Coverage
shall be evidenced by a certification of self-insurance letter (“Letter of Self-
Insurance”), satisfactory to STATE, certifying that CITY meets the coverage
requirements of this section. This Letter of Self-Insurance shall also identify the
project location as depicted in EXHIBIT A. CITY shall deliver to STATE the Letter
of Self-Insurance with a signed copy of this AGREEMENT. A copy of the
executed Letter of Self-Insurance shall be attached hereto and incorporate
as Exhibit B.
10.2. SELF-INSURED using Contractor - If the work performed under this
AGREEMENT is done by CITY ‘s contractor(s), CITY shall require its
contractor(s) to maintain in force, during the term of this AGREEMENT, a
policy of general liability insurance, including coverage of bodily injury
liability and property damage liability, naming STATE, its officers, agents and
employees as the additional insured in an amount of $1 million per
occurrence and $2 million in aggregate and $5 million in excess. Coverage
shall be evidenced by a certificate of insurance in a form satisfactory to the
STATE that shall be delivered to the STATE with a signed copy of this
Agreement.
11. TERMINATION - This Agreement may be terminated by timely mutual written
consent by PARTIES, and CITY’s failure to comply with the provisions of this
Agreement may be grounds for a Notice of Termination by STATE.
12. TERM OF AGREEMENT -This Agreement shall become effective on the date first
shown on its face sheet and shall remain in full force and effect until amended or
terminated at any time upon mutual consent of the PARTIES or until terminated by
STATE for cause.
PARTIES are empowered by Streets and Highways Code Section 114 & 130 to enter into
this Agreement and have delegated to the undersigned the authority to execute this
Agreement on behalf of the respective agencies and covenants to have followed all
the necessary legal requirements to validly execute this Agreement.
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IN WITNESS WHEREOF, the PARTIES hereto have set their hands and seals the day and
year first above written.
THE CITY OF MOORPARK STATE OF CALIFORNIA
DEPARTMENT OF TRANSPORTATION
By: __________________________
Mayor/Chairmen
TONY TAVARES
Director of Transportation
Initiated and Approved
By: ___________________________
City Manager
By: ___________________________
GODSON OKEREKE
Deputy District Director
Division of Maintenance District 07
ATTEST:
By: __________________________
City Clerk
By: __________________________
City Attorney
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EXHIBIT A
1
(Plan map identifying the applicable STATE Routes, CITY road(s), and facilities)
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AS
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CASEY ROAD
1
1
EASEMENT LEGEND:
1
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CASEY ROAD
Sheet 1 of 1
PREPARED BY:
87 N. Raymond Ave., Ste 300
Pasadena, CA 91103
Office: 626-486-2555
Fax: 626-486-2556
Southland
Civil Engineering
& Survey, LLP
Proj. No.
EXHIBIT A -
LANDSCAPE MAINTENANCE AGREEMENT WITH THE
CITY OF MOORPARK
8570-22010 46
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12853-0092\2907668v2.doc
AGREEMENT BETWEEN MOORPARK CASEY ROAD, L.P. AND THE
CITY OF MOORPARK FOR THE ADVANCEMENT OF FUNDS FOR THE
MAINTENANCE OF LANDSCAPING, IRRIGATION, AND OTHER
IMPROVEMENTS WITHIN THE BOUNDARIES OF THE RIGHT OF WAY
ALONG WALNUT CANYON ROAD IN CONNECTION WITH THE
VENDRA GARDENS PROJECT
This Agreement (“Agreement”) is entered into between Moorpark Casey Road,
L.P., a California limited partnership (“Developer”), and the City of Moorpark, a California
municipal corporation (“City”). Developer and City are referred to jointly below as
“Parties.” The Agreement is effective on the date it is fully executed by the Parties
(“Effective Date”). In consideration of the Recitals below, the mutual covenants set forth
in this Agreement, and for the further consideration described in this Agreement, the
Parties agree as follows:
1. Recitals. The Parties hereto acknowledge and agree that this Agreement is made
with respect to the following facts and purposes that each agrees to be true and correct.
A. Developer has obtained approval for development of the Vendra Gardens
Project, a 200-unit apartment complex and associated site improvements on
approximately 11.66 acres (“Project”) on that certain real property of Developer generally
located at 150 Casey Road in the City of Moorpark (“Subject Property”).
B. The Project approvals include General Plan Amendment No. 2004-05,
Residential Planned Development Permit No. 2012-02, Development Agreement No.
2012-03, four amendments to the Development Agreement and other ancillary approvals
and agreements for the development of the Project.
C. The Project abuts Casey Road on the north and Walnut Canyon Road
(State Route 23) on the east, and, as a condition of Project approval, the Developer is
required to install landscaping within the Project site and around its perimeter, including
within the right of way along Casey Road and Walnut Canyon Road.
D. Pursuant to Section 6.13 of the Development Agreement, the Developer
has agreed to pay for, cooperate in the formation of, and assist the City in establishing, a
Community Facilities District (“CFD”) by which the cost to maintain certain identified
portions of the landscaping, irrigation and improvements within and adjacent to the
Subject Property (the “CFD Improvements”) will be paid for out of assessment revenues.
E. A portion of the CFD Improvements will be located in the public right of way
along the westerly portion of Walnut Canyon Road (State Route 23) and which is owned
and controlled by Caltrans.
F. The improvements to be installed and contained within the boundaries of
the CFD that will be within the Caltrans right of way include: (i) the landscaping and
irrigation that will be installed in the parkway and strip of land on the south side of Casey
Road near the intersection of Walnut Canyon Road and landscaping and irrigation that
ATTACHMENT 2
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will be installed in a median island within the portion of Casey Road that projects into the
public right of way on the westerly side of Walnut Canyon Road; and (ii) a sidewalk,
landscaping, irrigation and the realignment of a storm drain along the westerly side of
Walnut Canyon Road. These planned improvements constitute the “Caltrans
Improvements.” The Caltrans Improvements are a subset of, and are part of, the CFD
Improvements.
G. The City will be entering into a Landscape Maintenance Agreement (“LMA”)
with Caltrans by which the City will be granted the right to have a City-contracted
landscape contractor enter onto and maintain landscape, irrigation, sidewalk and storm
drain improvements in Caltrans right of way along portions of Casey Road and Walnut
Canyon Road that lie within State Route 23 right of way.
H. Pursuant to the terms of the LMA, a landscape contractor or contractors
under contract with the City must maintain the Caltrans Improvements within the Caltrans
right of way rather than a contractor under contract to Developer.
I. Once Developer installs all the Caltrans Improvements, and the City
accepts them into the CFD and takes over the maintenance of those improvements
pursuant to the LMA, there will be a lag time between the date of acceptance of those
Caltrans Improvements and the date that the CFD is fully funded through collected
assessments to thereafter pay for the maintenance costs of the Caltrans Improvements.
In anticipation of that lag or gap time (hereinafter the “Funding Gap Period”), the City
needs sufficient funds from Developer to pay for the City’s contracted landscaping
maintenance costs attributable to maintaining the Caltrans Improvements during the
Funding Gap Period.
J. With respect to all other CFD Improvements, other than the Caltrans
Improvements, the City will require Developer to continue to maintain those CFD
Improvements during a one-year warranty period after City acceptance of those
improvements into the CFD pursuant to City policy as provided in City Council Resolution
No. 2012-3096.
K. This Agreement is intended to provide the terms by which Developer will
deposit and, as necessary, supplement and replenish, sufficient funds to pay for the
anticipated landscaping, irrigation and other improvement maintenance costs for the
Caltrans Improvements during the Funding Gap Period.
2. Developer Installation of Caltrans Improvements.
A. Developer, or Developer’s contracted landscaping contractor, shall install
all Caltrans Improvements in accordance with all required plans and specifications
approved by the City.
B. Upon Developer’s completion of the installation of the Caltrans
Improvements, City shall inspect and accept those Caltrans Improvements once they
have been determined by the City to be complete, installed in accordance with the
approved plans, and are determined by the City to be in good condition.
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C. Upon the City’s acceptance of the Caltrans Improvements, the City’s
contracted landscape contractor shall commence regular and appropriate maintenance
services for the Caltrans Improvements.
3. Developer Responsible for All Costs of Maintenance during Funding Gap
Period.
A. Developer is solely responsible for all City-contracted maintenance costs of
the Caltrans Improvements during the Funding Gap Period. By way of clarification and
not as a limitation on Developer’s responsibility during the Funding Gap Period,
Developer shall be responsible for the City’s incurred cost of maintenance of the Caltrans
Improvements for no less than one-year (the equivalent of the one-year warranty period
required by City Council Resolution No. 2012-3096) in order to ensure survivability of the
plant material and to validate the quality of the installation of all improvements.
B. After City’s acceptance of the Developer-installed Caltrans Improvements,
City shall maintain those improvements using funds deposited with City by Developer for
that purpose pursuant to Section 4 of this Agreement.
4. Deposit of Funds for Maintenance Costs.
A. Concurrently with the execution of this Agreement by City, Developer will
deliver to City the sum of $15,000 (Fifteen Thousand Dollars). City agrees to deposit said
sum in a separate City account (“Separate Fund”) and to use the principal sum, and any
interest earned thereon, in furtherance of satisfying the costs of the maintenance of the
Caltrans Improvements during the Funding Gap Period.
B. City will, on a quarterly basis, or as often as City deems necessary, provide
Developer with an accounting of disbursements from the Separate Fund established
pursuant to Subsection A, above. In the event disbursements reduce the balance of the
fund to $5,000 (Five Thousand Dollars) or less, Developer shall, within five business days
following a written request of City, deliver to City such additional monies as are necessary
to maintain the balance in the separate fund at $15,000.
5. End of Developer’s Funding Obligation under this Agreement and Return of
Remaining Funds Held in Separate Fund.
A. Developer’s obligations under Sections 2 through 4 of this Agreement will
expire and Developer shall have no further obligations to directly pay the City for the
maintenance costs of the Caltrans Improvements during the Funding Gap Period upon
the happening of the last to occur of the following events: (i) the completion of all legally
required steps to form the CFD and to place required assessments on the tax roll; (ii) the
end of the one-year warranty period after acceptance by the City of the Caltrans
Improvements; (iii) the completion of all CFD Improvements and end of the one-year
warranty period and acceptance of said improvements; and (iv) the date that City provides
notice to Developer that sufficient assessment revenues have been received by the City
through the County tax collector to thereafter pay all upcoming future maintenance
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expenses of the Caltrans Improvements (the “Notice of Sufficient Assessment
Revenues”).
B. City shall provide Developer with the Notice of Sufficient Assessment
Revenues, as provided in Subsection A above, within 30 days of the date that the City
has received proceeds of CFD Assessments equal to 100% of the estimated cost to
maintain all CFD Improvements, including the Caltrans Improvements, for an upcoming
fiscal year.
C. Within 30 days after the City has provided Developer with the Notice of
Sufficient Assessment Revenues, City shall return any funds remaining in the Separate
Fund that are not already obligated to be paid for Caltrans maintenance costs during the
Funding Gap Period.
6. Miscellaneous.
A. Notices. All notices and demands will be given in writing by certified or
registered mail, postage prepaid, and return receipt requested, or by overnight carrier.
Notices will be considered given upon the earlier of (a) two business days following
deposit in the United States mail, postage prepaid, certified or registered, return receipt
requested, or (b) one business day following deposit with an overnight carrier service.
The Parties will address such notices as provided below or as may be amended by written
notice:
City: CITY OF MOORPARK
799 Moorpark Avenue
Moorpark, California 93021
Attention: City Clerk
Developer: Moorpark Casey Road, L.P.
5251 Ericson Way
Arcata, California 95521
Attention: Chris Dart
B. Further Cooperation. Each party to this Agreement agrees to cooperate by
performing any further acts and by executing and delivering any and all additional monies,
items, or documents which may be reasonably necessary to carry out the terms and
provisions of this Agreement, and each party to this Agreement agrees that it will not act
in any manner whatsoever which would hinder, impede, interfere or prohibit or make more
onerous or difficult the performance of the other party hereto under this Agreement.
C. Amendments. Any amendments to this Agreement will be effective only by
a writing executed by the Parties to this Agreement.
D. Governing Law. This Agreement is deemed to have been prepared by each
of the Parties hereto, and any uncertainty or ambiguity herein will not be interpreted
against the drafter, but rather, if such uncertainty or ambiguity exists, will be interpreted
according to the applicable rules of interpretation of contracts under the laws of the State
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of California, and not the substantive law of another state or the United States or federal
common law. This Agreement will be deemed to have been executed and delivered within
the State of California, and the rights and obligations of the Parties will be governed by,
and construed and enforced in accordance with, the laws of the State of California.
E. Entire Agreement. This Agreement contains the entire agreement between
the City and Developer regarding the subject matter of this Agreement.
F. Successors and Assigns. This Agreement will be binding upon and inure
to the benefit of the heirs, executors, administrators, successors and assigns of the
Parties hereto.
G. Counterparts, Facsimile and Electronic Signatures. This Agreement may
be executed in whole or in counterparts, which together will constitute the entire
Agreement. Facsimile or electronic signatures/counterparts to this Agreement will be
effective as if the original signed counterpart were delivered.
H. Legal Representation. Each of the Parties acknowledge that in connection
with the negotiation and execution of this Agreement, they have each been represented
by independent counsel of their own choosing and the Parties executed this Agreement
after review by such independent counsel, or, if they were not so represented, said non-
representation is and was the voluntary, intelligent and informed decision and election of
any of the Parties not so represented. The Parties further acknowledge that, prior to
executing this Agreement, each of the Parties has had an adequate opportunity to
conduct an independent investigation of all the facts and circumstances with respect to
the matters that are the subject of said Agreement.
I. Attorneys’ Fees. If either of the Parties hereto incurs attorneys’ fees in order
to enforce, defend or interpret any of the terms, provisions or conditions of this Agreement
or because of a breach of this Agreement by the other party, the prevailing party, whether
by suit, negotiation, arbitration or settlement will be entitled to recover reasonable
attorneys’ fees from the other party.
J. Severability. If any part, term or provision of this Agreement is held by a
court of competent jurisdiction to be illegal or in conflict with any law, the validity of the
remaining provisions will not be affected, and the rights and obligations of the Parties will
be construed and enforced as if this Agreement did not contain the particular part, term
or provision held to be invalid.
K. No Agency or Joint Venture. The terms and provisions of this Agreement
will not cause the Parties hereto or any of each Parties’ agents, consultants, contractors
or other providers of professional services to be construed in any manner whatsoever as
partners, joint venturers or agents of each other in the performance of their respective
duties and obligations under this Agreement, or subject either party to this Agreement to
any obligation, loss, charge or expense of the other party to this Agreement.
L. Time of Essence. Time is expressly made of the essence of each and every
provision of this Agreement.
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M. Remedies. No remedy or election hereunder will be deemed to be exclusive
but will, wherever possible, be cumulative with all other remedies at or in equity.
N. Venue. Venue for any action arising directly or indirectly under this
Agreement will be in the Superior Court of Ventura County, California.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the Parties hereof have executed and entered into this
Agreement as of the date set forth below.
DEVELOPER:
MOORPARK CASEY ROAD, L.P.
a California limited partnership
By: Moorpark Casey Road, LLC,
a California limited liability company, its
Administrative General Partner
By: Danco Communities, a
California corporation,
Its Manager
By: ______________________
Daniel Johnson
President
By: Community Revitalization and
Development Corporation, a California
nonprofit public benefit corporation, its
Managing General Partner
By: _____________________
David Rutledge
President
CITY:
CITY OF MOORPARK,
a municipal corporation
By:
Chris R. Enegren, Mayor
ATTEST:
Ky Spangler, City Clerk
APPROVED AS TO FORM:
By:
Kevin G. Ennis, City Attorney
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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 )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared , who 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 he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) 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.
Signature (Seal)
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