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HomeMy WebLinkAboutAGENDA REPORT 1988 0504 CC REG ITEM 08MRELEASE AND WAIVER CONCERNING PAYMENT OF PARK LAND DEDICATION IN LIEU FEES THIS RELEASE AND WAIVER ("Agreement"), dated May 4, 1988, is entered into by and between the CITY OF MOORPARK, California, a MUNICIPAL CORPORATION ("CITY"), AND CHARLES STREET LIMITED, a California General Partnership ("Developer"), subject to the following terms and conditions. RECITALS: 1. There is currently a dispute as further described in Recitals 4. and 5. between the parties hereto relative to the r1:=1ymPnt 0f :q~~ 1~~0 0~~.;--~t~~r. .;..., lie-!__! f~!?s bv the Developer relating to Tentative Tract Map No. 4095 in the City (hereinafter referred to as "Tract No. 4095") and Residential Planned Development Permit No. 1046 (hereinafter referred to as "RPO Permit No. 1046"). 2. The Moorpark City Council approved the Final Map for Tract No. 4095 on December 16, 1987. 3. The Moorpark City Council approved said Final Map without the Developer having fulfi 11 ed the requirements of Condition No. 12 of Tract No. 4095 relative to the payment of park land dedication in lieu fees; said Condition No. 12 reads as follows: "That prior to recordation, the applicant shall pay all fees pursuant to the City of Moorpark Municipal Code, Sections 8279-4 seq. (sic), for the purpose of providing fees in lieu of land dedication for local park acquisition and/or development of park facilities for the future residents of the subdivision.11 4. The City Clerk has not released Tract No. 4095 for recordation since Condition No. 12 of said Tract has not been met. 5. City and Oeve loper do not agree whether or not Government Code Section 53077.5 applies to the payment of park land dedication in lieu fees. 6. Both parties believe it is in their best interest to promptly resolve the dispute. NOW, THEREFORE, in consideration of the mutual promises and covenants herein contained, the parties hereto agree as follows: 1. Without admitting the validity of the positions asserted by the other party hereto, each party believes it is in its best interest to amicably resolve the current disputes referred to in the first recital and foreclose litigation relative thereto. This Agreement is a compromise of those disputes and may not be used as an 1 admission against either party. Each party intends by this Agreement only to avoid litigation and buy peace. There is no acknowledgment or representation made hereby, nor shall this Agreement be admissible evidence for the purpose of, establishing or relating to the validity of either of the disputes referred to hereinabove. 2. Each party acknowledges and agrees that Condition No. 36 of PD 1046 is deemed satisfied upon the payment of the park land dedication in lieu fees required by Condition No. 12 of Tract No. 4095 with the amount as specified in paragraph 3.a. of this Agreement. Condition No. 36 of PD 1046 reads as follows: "That prior to the issuance of a zone clearance for the first building permit, the developer shall satisfy the need for park and recreation facilities generated by this project by the p;;ympnt of ;i fee. l=or n!!rro~P nf calculating the fee, said fee shall be consistent with the formula set forth in Sections 8297-4 of the Moorpark Municipal Code. Payment of a fee pursuant to Section 8297-4 et seq. of the Moorpark Municipal Code as part of a subdivision encompassed by the Planned Development Permit shall satisfy this condition." 3. Developer shall do the following: a. Park Land Dedication In Lieu Fee. Subject to each of the prov1s1ons of this Agreement, Developer shall pay to the City a park land dedication in lieu fee of $64,333.00 ("Fee"), which Fee is derived from the application of the provisions of Section 8297-4d, the City's subdivision ordinance, and using an agreed fair market value of $198,559.00 per acre of land. Developer waives all rights to a credit for private open space pursuant to said Section 8297-4 ("Credit"). The Fee shall be payable upon the City's issuance of the first building permit for a residential structure in Tract No. 4095 or any portion thereof, upon the sale of property described as Tract No. 4095 or any portion thereof, or within one (1) year following recordation of a Final Map on Tract No. 4095, whichever first in time occurs. If Deve 1 oper does not record a Final Map on said tract or receive issuance of the first building permit for a residential structure within one (1) year after the date of this Agreement, and no prior sale has occurred, then Developer shall pay eight percent (8%) simple interest on an annualized basis on the amount of the Fee beginning on the first day of the following year to and until the date of payment. The interest shall be due and owing upon and at the same time as the payment of the Fee. b. Waiver. Developer fully releases, acquits, holds harmless and forever discharges the City and its officers, employees, servants and agents from any and all claims, actions, causes of action, demands, rights, damages, costs, expenses and compensation whatsoever which Developer now has or which may hereafter accrue on account of, or in any way arising out of, the establishment of the imposition, computation, timing and payment of the Fee and the waiver of the Credit 2 pursuant to State law or local ordinance including but not limited to Government Code Sections 53077.5, 65913.5 and 66477 et. seq. and Moorpark Municipal Code Section 8279-4. It is further understood and agreed by Developer that, with respect only to the Fee and the Credit, all rights under Section i542 of the California Civil Code, and any similar law of any state or territory of the United States, are hereby expressly waived. Section 1542 reads as follows: "1542. Certain claims not affected by general release. A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with i !-,-, ,~ ,-, ~. ~ ,-, -,-II ~~ .._ ,.,. --., . ' c. Developer also agrees to install 24 inch box trees on the Spring Road, Los Angeles Avenue and Charles Street frontages of Tract No. 4095 as required by the Director of Community Development in addition to the 24 inch box trees currently shown on the conceptual or approved 1 and scape p 1 ans of Tract No. 4095. Said add it i ona 1 trees shall be installed at the time the landscaping improvements are otherwise required by the Director of Community Development but no later than the occupancy of any dwelling unit or sales office for Tract 4095. The species of all additional 24 inch box trees noted above shall be approved by the Director of Community Development prior to the issuance of any building permit for Tract 4095. 4. This Agreement shall not be construed as modification to any of the existing permits, conditions, entitlements, laws or regulations relative to Tract No. 4095 or the RPO Permit No. 1046 relating to said tract and constitutes the sole and only agreement between the parties and supersedes all prior oral or written communications regarding the same. This Agreement was prepared by the parties hereto jointly and equally and shall not be interpreted against either party on the ground that the party prepared the Agreement or caused it be prepared. This Agreement shall be deemed to satisfy the park land dedication in lieu fee condition of Tract No. 4095 and RPO Permit No. 1046, provided that Developer is not in breach hereof. Both the City and the Deve 1 oper have entered into this agreement in good faith and shall take no action to impede or interfere with the implementation of each provision hereof. 5. Should any litigation be commenced between the parties hereto concerning the enforcement or obligations of this Agreement, the party prevailing in such litigation shall be entitled, in addition to other relief as may be granted, to a reasonable sum for attorneys' fees as shall be determined by the court, in addition to any other costs and expenses to which the party would be ordinarily entitled. 6. Should either party claim or contend that the other is not in full compliance with or is in breach of any term or condition of 3 this Agreement, the noticing party shall provide at least fifteen (15) days prior written notice to the other party before declaring a breach of this Agreement and declaring this Agreement terminated or seeking enforcement hereof. The party receiving such notice, shall within the fifteen (15) day period cure said default. 7. Any and all notices or other communications required or permitted by this Agreement or by laws, to be served on or given to either party hereto, shall be in writing and shall be duly served when deposited in the United States postal service mail, first class, postage prepaid, properly addressed as follows: To City: City of Moorpark Attention: City Manager 799 Moorpark Avenue Monrp~rk r.~lifornia 93021 To Developer: Charles Street Limited c/o Ed Seal 255 N. Crimea Ventura, CA 93001 Either party may change its address for the purpose of this paragraph by giving written notice of such change of address to the other party in the manner provided herein. 8. This Agreement sha 11 be binding on and shall inure to the benefit of the successors and assigns of the parties hereto. 9. The waiver of any breach of this Agreement by either party shall not constitute a continuing waiver or a waiver of any subsequent breach either of the same or of another provision of this Agreement. 10. This Agreement runs with the land designated as Tract No. 4095 and shall expire by its terms upon the completion of the acts required hereinabove or the expiration of Tract No. 4095, whichever first occurs. Should Tract No. 4095 expire before the execution of each of the terms of this Agreement, this Agreement shall become null and void and shall be of no further force or effect. 11. The undersigned have read and considered this Agreement and fully understand all of its terms and conditions as well as the significance thereof and are fully satisfied with the settlement 4 ATTEST: CITY CLERK, City of Moorpark 5 CITY OF MOORPARK JOHN PATRICK LANE, Mayor CHARLES STREET LIMITED, a California general partnership By: _________ _