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HomeMy WebLinkAboutORD 250 1998 1216ORDINANCE NO. 250 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF MOORPARK, CALIFORNIA, ADOPTING A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF MOORPARK AND A -B PROPERTIES, AND A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF MOORPARK AND THE SOUTHERN CALIFORNIA EDISON COMPANY WHEREAS, at a duly noticed public hearing on April 14, and November 18, 1998, the City Council considered the application filed by A -B Properties and Southern California Edison Company for General Plan Amendment No. 97 -2 to amend the Land Use Element of the General Plan on undeveloped land approximately 1,300 feet west of Gabbert Road and north of the railroad tracks from "AG -1" (Agricultural ldu /10 -40 acres) to "I -2" (Medium Industrial) and Zone Change No. 97 -6 to change the Zoning on the property from A -E (Agricultural Exclusive) to M -2 (Limited Industrial) (Assessor's Parcel Nos. 500 -34 -22 and -23); and WHEREAS, the Planning Commission of the City of Moorpark adopted Resolution PC -98 -360 on November 9, 1998 recommending to the City Council approval of the proposed Development Agreement between the City and A -B Properties and Southern California Edison Company; and WHEREAS, the City Council on November 18, 1998 determined that since the proposed Development Agreement relates to and would provide for financing and construction of various improvements and facilities relating to the project area, the potential environmental impacts relating to this project have already been addressed by the Negative Declaration prepared for General Plan Amendment No. 97 -2 and Zone Change No. 97 -6. The City Council of the City of Moorpark, California, ordains as follows: SECTION 1. Findings: (1) Government Code Section 65864 of the State Planning and Zoning Law provides that cities may enter into development agreements with persons having equitable interest in real property for development of that property. (2) The owners of the property covered by General Plan Amendment No. 97 -2 and Zone Change No. 97 -6 have applied to the City of Moorpark to seek Development Agreements between the City and said owners pursuant to Chapter 15.40 of the Moorpark Municipal Code. Ordinance No. 250 Page 2 (3) The Planning Commission noticed public hearing Development Agreement at has made recommendations Council pertaining to Agreements. of the City of Moorpark at a duly on November 9, 1998 reviewed the the request of the City Council, and in Resolution PC -98 -360 to the City the approval of the Development (4) The City Council has received Planning Commission Resolution PC -98 -360 and has considered the Planning Commission evaluation and recommendations for approval of the Development Agreements between the City and A -B Properties, and the City and Southern California Edison Company. (5) A duly noticed public hearing was conducted by the City Council on November 18, 1998 to consider the Development Agreements and to accept public testimony related thereto. (6) The City Council has considered all points of public testimony relevant to the Development Agreements and has given careful consideration to the content of the Development Agreements. (7) The Development Agreements are consistent with the General Plan. (8) The Development Agreements address the period of development, public facilities and infrastructure development and financing for these improvements and sets forth reasonable mitigation fees to defer the cost of development to minimize impacts to the City. (9) The City Council has determined that since the proposed Development Agreements relate to and would provide for financing and construction of various improvements and facilities relating to the project area, the potential environmental impacts relating to this project have already been addressed by the Negative Declaration prepared for General Plan Amendment No. 97 -2 and Zone Change No. 97 -6. SECTION 2. Adoption (1) The City Council of the City of Moorpark hereby approves the Development Agreements attached hereto as Attachments "A" and "B" and incorporated by reference, between the City of Moorpark and A -B Properties, and the City of Moorpark and Southern California Edison Company. Ordinance No. 250 Page 3 (2) The Mayor and City Manager are authorized to execute and sign the final Development Agreements and any covenants necessary to effect the agreement. (3) Upon execution, the Development Agreements shall be recorded within the Office of the County Recorder, County of Ventura, as a covenant running with all the lands comprising General Plan Amendment 97 -2 and Zone Change No. 97 -6. (4) The Agreements shall become operative and run for the term specified within the agreements. SECTION 3. That if any section, subsection, sentence, clause, phrase, part or portion of this Ordinance is for any reason held to be invalid or unconstitutional by any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council declares that it would have adopted this Ordinance and each section, subsection, sentence, clause, phrase, part or portion thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, parts or portions be declared invalid or unconstitutional. SECTION 4. This Ordinance shall become effective thirty (30) days after the passage and adoption. SECTION 5. The City Clerk shall certify to the passage and adoption of this Ordinance; shall enter the same in the book of original ordinances of said city; shall make a minute of the passage and adoption thereof in the records of the proceedings of the City Council at which the same is passed and adopted; and shall, within fifteen (15) days after the passage and adoption thereof, cause the same to be published once in the Moorpark Star, a newspaper of general circulation, as defined in Section 6008 of the Government Code, for the City of Moorpark, and which is hereby designated for that purpose. Ordinance No. 250 Page 4 PASSED AND ADOPTED this 16th da"f Decembbr,l 1998. ATTEST: Deborah S. Traffens dt City Clerk rick IT-unter, Mayor Attachment A. Development Agreement between the City and A -B Properties Attachment B. Development Agreement between the City and Southern California Edison Company Recording Requested By And When Recorded Return to: CITY CLERK CITY OF MOORPARK 799 Moorpark Avenue Moorpark, California 93021 EXEMPT FROM RECORDER'S FEES Pursuant to Government Code § 6103 DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF MOORPARK AND A -B PROPERTIES THIS AGREEMENT SHALL BE RECORDED WITHIN TEN DAYS OF EXECUTION BY ALL PARTIES HERETO PURSUANT TO THE REQUIREMENTS OF GOVERNMENT CODE §65868.5 Citymgr \A B Properties Agreement 11398.7 DEVELOPMENT AGREEMENT This Development Agreement ( "the Agreement ") is made and entered into this day of , 19 , by and between the CITY OF MOORPARK, a municipal corporation, (referred to hereinafter as "City ") and A -B Properties a California General Partnership (referred to hereinafter as "Developer "). City and Developer are referred to hereinafter individually as "Party" and collectively as "Parties." In consideration of the mutual covenants and agreement's 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 the City for the development of such property in order to establish certainty in the development process. 1.2. [INTENTIONALLY LEFT BLANK] 1.3. Developer is owner in fee simple of certain real property in the City of Moorpark, as more specifically described by the legal description set forth in Exhibit A, which exhibit is attached hereto and incorporated herein by this reference (the "Property "). 1.4. City has approved, or is in the process of approving, General Plan Amendment No. 97 -2( "GP ")and Zone Change No. 97 -6 ("ZC"), (The GP and ZC, are collectively referred to as the "Project Approvals 1.5. 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. 1.6. 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. In consideration thereof, Developer agrees to waive its rights to legally challenge the limitations and exactions imposed upon A B PROPERTIES AGREEMENT 11798.7 -2- the development of the Property pursuant to the Project Approvals, this Agreement and any Subsequent Approvals (as defined in Section 5.3 of this Agreement) and to provide the public benefits and improvements specified in this Agreement. 1.7. 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 General Plan Amendment No.97 -6. 1.8. On November 9, 1998, 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 November 18, 1998, the City Council of City ( "City Council ") commenced a duly noticed public hearing on this Agreement which was continued to December 2, 1998, and at the conclusion of the hearing approved the Agreement by Ordinance No. 250 ( "the Enabling Ordinance "). 2. Property Subject To This Agreement. All of the Property shall be subject to this Agreement. The Property may be referred to hereinafter as "the site" or "the Project area ". 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 area 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 the 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 the 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 A B PROPERTIES AGREEMENT 11398.7 -3- transferred subsequent to the effective 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, delivers 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 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 subdivision, 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 this Agreement. 4.2. 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 "). 5. vesting of Development Rights. 5.1. Timing of Development. In Pardee Construction Co. v. City of Camarillo, 37 Cal.3d 465 (1984), the California Supreme Court held that the failure of the parties therein to provide for the timing or rate of development resulted in a later- adopted initiative restricting the rate of development to prevail against the parties' agreement. City and Developer intend to avoid the result in Pardee by acknowledging and providing that Developer shall have the right, without obligation, to develop the Property in such order and at such rate and times as Developer deems appropriate within the exercise of its subjective business judgment, except as provided for in this Agreement. A 8 PROPERTIES AGREEMENT 11398.7 -4- In furtherance of the Parties' intent, as set forth in this section, 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. In particular, but without limiting any of the foregoing, no numerical restriction shall be placed on the number of building units that can be built each year within the Project Area. However, nothing in this section 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 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 in City's sole A B PROPERTIES AGREENDIP 11398.7 -5- discretion(collectively "City Laws "), except City Laws that: (a) change any permitted or conditional permitted uses of the Property from what is allowed by the Project Approvals or this Agreement; (b) 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 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; (c) 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; or (d) control commercial rents. 5.4. Term of Subsequent Approvals. The term of any tentative map for the Property, or any portion thereof, shall expire eight (8)years after its approval or conditional approval or upon the expiration or earlier termination of this Agreement, whichever occurs first, notwithstanding the fact that the final map may be filed in phases. Each 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, 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. A -B PROPERTIES AGREEMENT 11398.7 -6- 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, the Developer shall have the right, at its election, to apply for a new permit to replace a permit that has expired or is about to expire. 5.5. Modification of Approvals. Throughout the term of this Agreement, the Developer shall have the right, at its election and without risk to any right that is vested in it pursuant to this section, to apply to City for minor modifications to Project Approvals and Subsequent Approvals. The approval or conditional approval of any such minor 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 the Developer if all infrastructure required 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. 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. Developer Agreements. 6.1. The Developer shall comply with (i) this Agreement, (ii) the Project Approvals, and (iii) all Subsequent A B PROPERTIES AGREEMENT 11398.1 Approvals for which it was the applicant or a successor in interest to the applicant. 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 each building permit, Developer shall pay City a fee to be used for park improvements within the City of Moorpark. The amount of the fee shall be twenty -five cents ($.25) per square foot of gross floor area. The fee shall be adjusted annually (commencing one (1) year after the first building permit is issued within the Project Area 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 Development Agreement is approved by the City Council (e.g., if approval occurs in June, then the month of February is used to calculate the increase). This fee may be expended by City in its sole and unfettered discretion. 6.4. As a condition of the issuance of each building permit for any use within the boundaries of the Project Area, 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 effective date of this Agreement, the amount of the Development Fee shall be Twenty One Thousand Dollars ($21,000.00) per acre of each lot on which the building is located. The fee shall be adjusted annually (commencing one (1) year after the first building permit is issued within the Project Area 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 Development Agreement is approved by the City Council (e.g., if approval occurs in June, then the month of February is used to calculate the increase). A S PROPERTIES AGREEMENT 11398.7 _8 _ 6.5. As a condition of the issuance of each building permit for any use within the boundaries of the Project Area, 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 effective date of this Agreement, the amount of the Citywide Traffic Fee shall be Eighteen Thousand Dollars ($18,000.00) per acre of each lot on which the use is located. Commencing on January 1, 2001, and annually thereafter, the Citywide Traffic Fee shall be increased to reflect the change in the State Highway Bid Price Index for the twelve (12) month period that is reported in the latest issue of the Engineering News Record that is 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 Citywide Traffic Fee shall remain at its then current amount until such time as the next subsequent annual indexing which results in an increase. 6.6. On the operative date of this Agreement, Developer shall pay all outstanding City processing and environmental processing costs related to the project and preparation of this Agreement 6.7. Developer agrees to pay Air Quality Fees, that are to be calculated by City at its sole and unfettered discretion consistent with similar projects in the City as a condition on each Subsequent Approval within the boundaries of the Project Area. The Air Quality Fees may be expended by City in its sole discretion for reduction of regional air pollution emissions and to mitigate residual Project air quality impacts. 6.8. Developer agrees to cast affirmative ballots for the formation of an assessment district and levying of assessments, for the maintenance of parkway and median landscaping, street lighting 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. A B PROPERTIES AGREEMENT 11398.7 -9- 6.9. 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 Police Facilities Fees, Fire Facilities Fees, Library Facilities Fees, entitlement processing fees, and plan check and permit fees for buildings, and public improvements. Developer further agrees that unless specifically exempted by this Agreement, it is subject to all fees imposed by City at the operative date of this Agreement and such future fees imposed as determined by City in its sole and unfettered discretion so long as said fee is imposed on similarly situated properties. 6.10. Prior to City Council action on any Subsequent Approval, or grading of the Property, whichever occurs first, Developer agrees to provide City an irrevocable offer of dedication to dedicate right -of -way at no cost to City for the future 118 bypass along the entire length of the north side of the property, along the east side of the Gabbert Channel, and a connector with a radius as determined by the City at its sole and unfettered discretion. The right -of -way shall be one hundred and twenty feet (1201) wide along the north side of the property (east -west section) and one hundred feet (1001) along the east side of the channel (north -south section) plus any necessary slope easements to accommodate a level right -of -way of the required width and slope easements to accommodate a grade separation crossing of the railroad tracks along the southern boundary. Developer further agrees to dedicate access rights from the property to the City for the 118 bypass except for no more then one (1) approved intersection with public streets. City shall have final approval of the location, legal description and use of the property offered for dedication. City may transfer its interest in the property after acceptance of its dedication to any other public entity. 6.11. Developer agrees that as part of any grading of the property the right -of -way for the future 118 bypass shall be graded per City direction. 6.12. Developer agrees to comply with all the provisions of the Hillside Management Ordinance (Chapter 17.38 of the Municipal Code) of the City. A B PROPERTIES AGREEMENT 11798.7 - 10 - 6.13. Developer agrees to pay a pro -rata share, as determined by the City at its sole and unfettered discretion, for the funding and construction of the improvements identified in the Gabbert and Walnut Canyon Channels Deficiency Study. Developer also acknowledges that interim improvements may also be necessary to facilitate any new use or development of the property and Developer agrees that they shall be responsible for any such interim improvements as their sole responsibility, without credit of these costs, except as may be provided in the implementation plan for the Gabbert and Walnut Canyon Channels Deficiency Study. 6.14. Prior to any subdivision or new use of the property, Developer agrees to acquire and construct, at their sole cost, dedicated public access to the properties, as approved by the City Council. Secondary access to comply with City and public safety requirements shall also be provided at their sole cost. 6.15. Developer agrees to not oppose creation of a redevelopment Project Area (as defined by applicable State law) encompassing any part of the Property provided that the Project Area is consistent with the rights of Developer under this Agreement. 6.16. Developer agrees not to request any concession, waiver, modification or reduction of any fee, regulation, requirement, policy or standard condition for any Subsequent Approval and further agrees to pay all fees imposed by City for future buildings, so long as said fees are also imposed in a similar manner on similar projects. 6.17. Developer shall grant, in a form acceptable to City, a conservation easement to retain that portion of the Property west of and including the Gabbert Canyon drain in a predominantly open space condition consistent with Civil Code Section 815 et seq., except for the following purposes: temporary construction (including temporary pumping needed for dewartering as part of any approved grading operations for the Property), landscape maintenance of manufactured slope areas, vegetation clearance within two hundred (200) feet of any structure for fire hazard reduction, revegetation and biological habitat enhancement required by City consistent with any Mitigation Monitoring Program, drainage conveyance, emergency access and extension of State Route 118. No excavation, drilling, extraction, pumping (excluding such pumping as may be needed for dewatering as part of approved grading operations) , mining, or similar activity shall be allowed in any A 8 PROPERTIES AGREEMENT 11390.7 - 11 - portion of the Property zoned Open Space. The limitations and exclusions described in this subsection shall be included in the conservation easement. The foregoing does not restrict the extraction of subsurface mineral resources by drilling from off the Property so long as the drilling apparatus and equipment are screened from view from all points within the City. Further, if the drilling site is not within the City, Developer agrees that before proceeding with any drilling it shall secure a use permit from the City which may include conditions ordinarily placed upon drilling opertations. Further, noise impacts from the drilling shall meet the same noise standards as placed on Industrial Planned Development Permits and there shall be no visible evidence or impacts on the ground surface of the Property: The conservation easement shall be recorded concurrently with the recordation of the first final subdivision map for the Property. 6.18. Prior to the effective date of the Ordinance approving Zone Change No. 97 -6, Developer shall execute in favor of City and record in the Office of the County Recorder of the County of Ventura a Covenant Running with the Land (Covenant) as set forth in Exhibit "B" attached hereto and incorporated herein to limit use of the Property. 6.19. Developer agrees that as a condition of the City's approval of the first Subsequent Approval for the Property, Developer shall submit improvement plans to improve Gabbert Road from the Union Pacific Gabbert Road rail crossing to a point approximately one hundred twenty -five (125) feet north of the rail crossing to four travel lanes, two eight (8) foot bike lanes and two ten (10) foot parkways inclusive of sidewalks ( Gabbert Road improvements). The plans for the Gabbert Road improvements must be approved by the City and a surety in an amount and form determined by the City in its sole and unfettered discretion to guarantee this improvement shall be proviaea prior to approval or the first rinal Map ror the Property occurring after the operative date of this Agreement. The Gabbert Road improvements shall be constructed prior to issuance of a building permit for any portion of the Property that exceeds forty percent (40 %) of the acreage of the total of all lots created by the recordation of the first final map for the Property occurring after the operative date of this Agreement In the event the Improvements required pursuant to Section 6.22 of this Agreement A B PROPERTIES AGREEMENT 11398.7 -12- are constructed, accepted by the City and open to the public prior to the issuance of a building permit for any portion of the Property that exceeds forty percent (40 %) of the acreage of the total of all lots created by the recordation of the first final map for the Property occurring after the operative date of this Agreement, then the improvements required by this Section 6.19 shall not be required to be constructed by the Developer. 6.20. Prior to City action on the first Subsequent Approval for the Property, Developer shall provide a traffic study to determine if signalization of the intersection of the Gabbert Road /Poindexter Avenue is needed. Developer agrees that City at its sole and unfettered discretion may condition any Subsequent Approval of the Property to construct the traffic signal or pay a fair share payment at the above intersection. Construction of the signal, if required, shall occur at the same time as the Gabbert Road improvements in Section 6.19, above, or such later date as determined by the City Council at its sole and unfettered discretion. 6.21. Developer shall construct a thirty -two (32) foot wide paved access road (paved access road) to the Property to serve as the primary access until such time as the Improvements referenced in Section 6.22 are constructed. At such time as the Improvements in Section 6.22 are opened to the public, the paved access road shall become an emergency access only for the Property. The paved access road shall be located generally following the existing unpaved access road to the Property with the final location of said paved access road to be determined by the City at its sole and unfettered discretion. The paved access road shall be constructed to City Standards for an industrial street but with no requirement for curb, gutter, or sidewalk except curbs that may be determined necessary to provide for positive drainage. 6.22. Prior to issuance of a building permit for any portion of the Property that exceeds seventy percent (70 %) of the acreage of the total of all lots created by the recordation of the first final Map for the Property occurring after the operative date of this Agreement, Developer shall cause to be constructed a street extending north from Los Angeles Avenue (SR 118) including an underground crossing of the Union Pacific railroad tracks to a point approximately six hundred (600) feet north of A 5 PROPERTIES AGREEMENT 11398.7 - 13 - said railroad tracks (Improvements) within the area of the offer of dedication required of Developer in Section 6.10 of this Agreement. The preliminary improvement plans must be approved by the City and a surety in an amount and form determined by the City in its sole and unfettered discretion to guarantee the Improvements shall be provided prior to approval of the first final map for the Property occurring after the operative date of this Agreement. Prior to issuance of a building permit for any portion of the Property that exceeds forty percent (40 %) of the acreage of the total of all lots created by the recordation of the first final map for the Property occurring after the operative date of this Agreement, City must approve in it sole and unfettered discretion the final design plans and specifications for the Improvements and a financing plan that demonstrates the ability to fund the Improvements. This financing plan may include at City's sole and unfettered discretion, use of Citywide Traffic monies. 7. City Agreements. 7.1. City shall use its best efforts to process plan checking and related processing for the project in an expedited manner. 7.2. City shall exempt this project from payment of the Gabbert Road /Casey Road Area of Construction (AOC) fees. 7.3. City agrees that upon receipt of a landowners' petition by developer and Developer's payment of a fee as determined necessary by City in its sole and unfettered discretion, City shall commence proceedings to form a Mello -Roos Community Facilities District ( "District ") and to incur bonded indebtedness to finance all or portions of the on site and off site public facilities, infrastructure and services that are required by this Agreement and Subsequent Approvals and that may be provided pursuant to the Mello -Roos Community Facilities Act of 1982 (the "Act "); provided, however, the City Council, in its sole and unfettered discretion, may abandon establishment of the District upon the conclusion of the public hearing required by California Government Code Section 53321 and /or deem it unnecessary to incur bonded indebtedness at the conclusion of the hearing required by California Government Code Section 53345. The formation, type of assessment district (if City determines another type of assessment district other than District is more A 8 PROPERTIES AGREEMENT 11398.7 -14- appropriate) and method and spread of assessment shall be at the City's sole and unfettered discretion. 7.4. If requested in writing by Developer and limited to City's legal authority, City 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 which are outside Developer's legal boundaries. The process shall generally follow Government Code Section 66457 et. seq. and shall include the obligation of Developer to enter into an agreement with City, guarantee 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, and City overhead expenses of fifteen percent (15 %) on all out -of- pocket costs and City staff costs. 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 in its sole and unfettered discretion. 9. Demonstration of Good Faith Compliance. In order to ascertain compliance by the 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 the Developer hereunder or render this Agreement invalid or void. 10. Authorized Delays. Performance by any Party of its obligations hereunder, other than payment of fees, and Developer's obligations and restrictions on development as provided for in Sections 6.19, 6.20, 6.21 and 6.22 of this Agreement 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 A -B PROPERTIES AGREEMENT 11398.7 -15- materials or supplies; (e) damage to work in progress by reason of fire, flood, earthquake or other casualty; (f) failure, delay or inability of City to 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 (b) 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 (c) fails to make any payments required under this Agreement; or (d) materially breaches any of the other provisions of the Agreement and the same is not cured within the time set forth in a written notice of violation from City to Developer, which period of time shall not be less than ten (10) days from the date that the notice is deemed received, provided if Developer cannot reasonably cure the breach within the time set forth in the notice, Developer fails to commence to cure the breach within such time limit and diligently effect such cure thereafter. 11.2. Default by City. City shall be deemed in breach of this Agreement if it: (a) materially breaches any of the provisions of the Agreement and the same is not cure within the time set forth in a written notice of violation from Developer to City, which period shall not be less than ten (10) days from the date the notice is deemed received, provided if City cannot reasonably cure the breach A B PROPERTIES AGREEMENT 11398.7 _ 16 within the time set forth in the notice, City fails to commence to cure the breach within such time limit and diligently effect such cure thereafter. 11.3. Content of Notice of Violation. Every notice of violation shall state with specificity that it is given pursuant to this section of the Agreement, the nature of the alleged breach, and the manner in which the breach may be satisfactorily cured. The notice shall be deemed given on the date that it is personally delivered or on the third day following the day after 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. 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 the Developer shall be injunctive relief and /or specific performance. In addition, and notwithstanding any other language of this Agreement, if the breach is of Subsection 6.4 or 6.5 or 6.9 or 6.10 or 6.19, or 6.20, or 6.21, or 6.22 of this Agreement, City shall have the right to withhold the issuance of building permits 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 the Developer if it violates any City ordinance or state statute. 12. Mortgage Protection. At the same time that City gives notice to the Developer of a breach, City shall send a copy of the notice to each holder of record of any deed of trust on the portion of the Property in which Developer has a legal interest ( "Financier "), provided that the Financier has given prior written notice of its name and mailing address to City A B PROPERTIES AGREEMEMT 11798.7 -17- 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, any Developer may deliver written notice to City and City may deliver written notice to the 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. 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 A B PROPERTIES AGREEMENT 11398.7 -18- any staff decision without first having exhausted its remedies pursuant to this section. 15. Amendment or Termination by Mutual Consent. In accordance with the provisions of Ordinance No. 59 of City or any successor thereof then in effect, this Agreement may be amended or terminated, in whole or in part by mutual consent of City and the Developer. 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. The 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, the 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 the Project Approvals or any Subsequent Approvals. 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 unless said term is amended or the Agreement is sooner terminated as otherwise provided herein. 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 A B PROPERTIES AGREEMENT 11398.7 -19- 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 "C" 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 contains the entire agreement between the Parties regarding the subject matter hereof, and all prior agreements or understandings, oral or written, are hereby merged herein. This Agreement shall not be amended, except as expressly provided herein. 22. Waiver. No waiver of any provision of this Agreement shall constitute a waiver of any other provision, whether or not similar; nor shall any such waiver constitute a continuing or subsequent waiver of the same provision. No waiver shall be binding, unless it is executed in writing by a duly authorized representative of the Party against whom enforcement of the waiver is sought. 23. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall be effective to the extent the remaining provisions are not rendered impractical to perform, taking into consideration the purposes of this Agreement. 24. Relationship of the Parties. Each Party acknowledges that, in entering into and performing under this Agreement, it is acting as an independent entity and not as an agent of the other Party 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 Ordinance No. 59 of City or any successor thereof then in effect. A B PROPERTIES AGREEMENT 11398.7 -20- 27. Cooperation Between City and Developers. City and each Developer shall execute and deliver to the other all such other and further instruments and documents as may be necessary to carry out the purposes of this Agreement. 28. Rules of Construction. The captions and headings of the various sections and subsections of this Agreement are for convenience of reference only, and they shall not constitute a part of this Agreement for any other purpose or affect interpretation of the Agreement. Should any provision of this Agreement be found to be in conflict with any provision of the Project Approvals or the Subsequent Approvals, the provision of this Agreement shall prevail. 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 under this section shall include attorneys' fees on any appeal and any post - judgment proceedings to enforce the judgment. This provision is separate and several and shall survive the merger of this Agreement into any judgment on this Agreement. 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. A 8 PROPERTIES AGREEMENT 11198.7 -21- IN WITNESS WHEREOF, A -B Properties and City of Moorpark have each executed this Development Agreement on the date first above written. CITY OF MOORPARK By: Patrick Hunter Mayor ATTEST Deborah S. Traffenstedt City Clerk A -B Properties By: Stephen R. Anderson General Partner By: Paul D. Burns General Partner A-8 PROPERTIES AGREEMENT 11398.7 -22- EXHIBIT A LEGAL DESCRIPTION Part of Subdivision "L" as the same is designated and delineated upon that certain map entitled, "Map of the lands of Rancho Simi, in the Ventura and Los Angeles Counties, California ", and recorded in the office of the County Recorder of Ventura County, in book 3 of Miscellaneous Records (Maps) at page 7 and particularly described as: West one half of the Southeast one quarter of Section six (6) in Township two (2) North of Ranch nineteen (19) West, as the same is designated and delineated upon the above described map. EXCEPTING the interest in that certain parcel of land, containing 3.118 acres, as conveyed by H.C. Estes et al., to Southern Pacific Railrood Company, by deed dated October 6, 1899 and recorded in the office of the County Recorder of said County of Ventura County, in book 62 of deeds at page 6 et seq. ALSO EXCEPT the interest and /or land conveyed to the Southern California Edison Company in deed recorded March 22, 1968 in book 3280 page 326 of Official Records. ALSO EXCEPTING THEREFROM that portion thereof as conveyed to Bugle Boy Industries in a deed recorded December 5, 1990 as Document No. 90- 179525 of Official Records. END OF LEGAL DESCRIPTION (Also identified as Assessor's Parcel No. 500 -0- 340- 225)A -1 A -B PROPERTIES AGREEMENT 11398.7 EXHIBIT B COVENANT RUNNING WITH THE LAND THIS COVENANT is made this day of , by and between the A -B Properties and Southern California Edison Company (Covenantors ") and the City of Moorpark ( "Covenantee "). WHEREAS, Covenantor is the owner of certain real property (500.0.340.22 and 23) in the City of Moorpark, County of Ventura, more particularly described in Exhibit "A" attached hereto and made a part hereof ( "the Covenantor Property "); and WHEREAS, Covenantee is the owner of certain real property at 799 Moorpark Avenue, in the City of Moorpark, County of Ventura, more particularly described in Exhibit "B" attached hereto and made a part hereof ( "the Covenantor Property "); and WHEREAS, Covenantee is willing to rezone the Covenantor Property from Agricultural Exclusive (AE) to Limited Industrial (M -2) but for the concern that some of the uses that are presently, or may subsequently be, allowed by right or permit in the CPD zone are, or may be, inappropriate uses for the Covenantor Property because of its particular location; WHEREAS, Covenantor seeks to have the Covenantors Property rezoned from Agricultural Exclusive (AE) to Limited Industrial (M -2) but acknowledges that some of the uses that are presently, or may subsequently be, allowed by right or permit in the M -2 zone are, or may be, inappropriate uses for the Covenantor Property because of its particular location; and NOW, THEREFORE, in consideration of the mutual promises of the parties to this Covenant, each to the other as Covenantor and Covenantee, and expressly for the benefit of, and to bind, their successors in interest, the parties agree as follows: ff'� A -B PROPERTIES AGREEMENT 11398.7 1. Covenantee agrees to adopt an ordinance rezoning the Covenantor Property from Agricultural Exclusive (AE) to Limited Industrial (M -2); 2. Covenantor agrees that, commencing on the effective date of the ordinance rezoning the Covenantor Property from Agricultural Exclusive (AE) to Limited Industrial (M -2) . Subject to the following restrictions in addition, and superseding the M -2 regulations. A. Primary uses, except agricultural crops, shall be conducted within completely enclosed buildings and metal faced buildings shall not be allowed as principal buildings. Outside storage and operations shall not be allowed as primary uses, only accessory outside storage shall be allowed, subject to the same limitations as M -1 (confined to the area to the rear of the principal building or the rear two - thirds of the property, whichever is more restrictive, and screened from view from any property line by appropriate walls, fencing, earth mounds, or landscaping). B. The following uses shall not be allowed as a primary use: • Manufacturing - Batteries • Manufacturing - Metal industries, primary; Rolling, drawing, and extruding • Manufacturing - Rubber and plastics products • Manufacturing - Tire retreading and recapping • Manufacturing - Cement, concrete and plaster products • Mini - storage • Recreational vehicle storage • Signs - Freestanding off -site advertising signs • Transportation services - Truck storage, overnight 3. Covenantor and Covenantee agree that, commencing on the effective date of the ordinance rezoning the Covenantor Property from Agricultural Exclusive (AE) to Limited Industrial (M -2), all uses specified in Paragraph 2.B. hereof that are presently allowed or that at any time in the future may be allowed in the M -2 (Limited Industrial) zone, whether by right or by permit, shall be deemed transferred from the Covenantors Property to the Covenantee Property for the benefit of the Covenantee Property. 4. Covenantors and Covenantee agree that from time to time Covenantee may substitute any other property owned by Covenantee on the date of the substitution for the Covenantee Property ( "the Substitute Covenantee Property ") without the consent of Covenantor by the recordation of an amendment to B -2 this Covenant. The amendment shall describe the Substitute Covenantee Property and shall provide that, commencing on the date of recordation of the amendment, all uses not specified in Paragraph 2 hereof that are presently allowed, or that at any time in the future may be allowed, in the M -2 (Limited Industrial) zone, whether by right or by permit, shall be deemed transferred from that Covenantor Property to the Substitute Covenantee Property for the benefit of the Substitute Covenantee Property. 5. All of the covenants, restrictions, and limitations set forth herein shall run with the Covenantee Property and the Covenantor Property and shall benefit and bind all persons, whether natural or legal, having or acquiring any right, title, or interest in any portion of the Covenantee Property or the Covenantor Property. Each grantee of a conveyance or purchaser under a contract of sale or similar instrument that covers any right, title, or interest in or to any portion of the Covenantee Property or the Covenantor Property, by accepting a deed or a contract of sale or similar instrument, accepts the conveyance or sale subject to, and agrees to be bound and benefited by, all of the covenants, restrictions and limitations set forth herein. 6. Nothing in this Covenant shall be construed so as to limit the right of Covenantee to rezone, or the right of Covenantor to petition Covenantee to rezone, the Covenantor Property in the future. 7. This Covenant shall remain in full force and effect until such time as an ordinance rezoning the Covenantor Property from Agricultural Exclusive (AE) to Limited Industrial (M -2) to another zone designation becomes effective. 8. This Covenant may be enforced by proceedings at law or in equity against any person who violates or attempts to violate a covenant, restriction or limitation hereof. The prevailing party shall be entitled to recover such attorneys' fees and court costs as it reasonably incurs in such a proceeding. 9. In the event any provision of this Covenant is found to be invalid or unenforceable in any proceeding at law or in equity, such finding shall not affect the other provisions of this Covenant, which shall remain in full force and effect. B -3 10. Either party may record in the office of the Recorder of Ventura County this Covenant or any amendment hereto specified in Paragraph 4 hereof without the consent of the other party. IN WITNESS WHEREOF, Covenantor and Covenantee have executed this Covenant on the date first above written COVENANTORS COVENANTEE A -B PROPERTIES CITY OF MOORPARK B -4 EXHIBIT C To City: City of Moorpark 799 Moorpark Avenue Moorpark, CA 93021 Attn. City Manager To Developer: A -B Properties 4875 Spring Road Moorpark, CA 93021 ATTN: Stephen R. Anderson C -1 Recording Requested By And When Recorded Return to: CITY CLERK CITY OF MOORPARK 799 Moorpark Avenue Moorpark, California 93021 EXEMPT FROM RECORDER'S FEES Pursuant to Government Code § 6103 DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF MOORPARK AND SOUTHERN CALIFORNIA EDISON COMPANY THIS AGREEMENT SHALL BE RECORDED WITHIN TEN DAYS OF EXECUTION BY ALL PARTIES HERETO PURSUANT TO THE REQUIREMENTS OF GOVERNMENT CODE §65868.5 cicyrqr \sce.1 DEVELOPMENT AGREEMENT This Development Agreement ( "the Agreement ") is made and entered into this day of , 19 , by and between the CITY OF MOORPARK, a municipal corporation, (referred to hereinafter as "City ") and Southern California Edison Company, a Corporation (referred to hereinafter as "Developer "). City and Developer are referred to hereinafter individually as "Party" and collectively as "Parties." In consideration of the mutual covenants and agreement's 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 15.407 City is authorized to enter into a binding contractual agreement with any person having a legal or equitable interest in real property within the City for the development of such property in order to establish certainty in the development process. 1.2. [INTENTIONALLY LEFT BLANK] 1.3. Developer is owner in fee simple of certain real property in the City of Moorpark, as more specifically described by the legal description set forth in Exhibit A, which exhibit is attached hereto and incorporated herein by this reference (the "Property "). 1.4. City has approved, or is in the process of approving, General Plan Amendment No. 97 -2( "GP ")and Zone Change No. 97 -6 ( "ZC "), (The GP and ZC, are collectively referred to as the "Project Approvals 1.5. 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. 1.6. 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. In consideration thereof, Developer agrees to waive its rights to legally challenge the limitations and exactions imposed upon SCE.1 -2- the development of the Property pursuant to the Project Approvals, this Agreement and any Subsequent Approvals (as defined in Section 5.3 of this Agreement) and to provide the public benefits and improvements specified in this Agreement. 1.7. 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 General Plan Amendment No.97 -6. 1.8. On November 9, 1998, 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 November 18, 1998, the City Council of City ( "City Council ") commenced a duly noticed public hearing on this Agreement which was continued to December 2, 1998, and at the conclusion of the hearing approved the Agreement by Ordinance No. 250 ( "the Enabling Ordinance "). 2. Property Subject To This Agreement. All of the Property shall be subject to this Agreement. The Property may be referred to hereinafter as "the site" or "the Project area ". 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 area 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 the 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 the 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 SCE.: -3- transferred subsequent to the effective 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, delivers 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 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 subdivision, 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 this Agreement. 4.2. 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 "). 5. Vesting of Development Rights. 5.1. Timing of Development. In Pardee Construction Co. v. City of Camarillo, 37 Cal.3d 465 (1984), the California Supreme Court held that the failure of the parties therein to provide for the timing or rate of development resulted in a later- adopted initiative restricting the rate of development to prevail against the parties' agreement. City and Developer intend to avoid the result in Pardee by acknowledging and providing that Developer shall have the right, without obligation, to develop the Property in such order and at such rate and times as Developer deems appropriate within the exercise of its subjective business judgment, except as provided for in this Agreement. sce.i -4- In furtherance of the Parties' intent, as set forth in this section, 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. In particular, but without limiting any of the foregoing, no numerical restriction shall be placed on the number of building units that can be built each year within the Project Area. However, nothing in this section 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 the Project Approva: the City Council referendum process, Property, unless the the amendment. Approvals. No amendment of any of Ls, whether adopted or approved by or through the initiative or shall apply to any portion of the Developer has agreed in writing to 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 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 in City's sole SCE.1 -5- discretion(collectively "City Laws "), except City Laws that: (a) change any permitted or conditional permitted uses of the Property from what is allowed by the Project Approvals or this Agreement; (b) 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 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; (c) 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; or (d) control commercial rents. 5.4. Term of Subsequent Approvals. The term of any tentative map for the Property, or any portion thereof, shall expire eight (8)years after its approval or conditional approval or upon the expiration or earlier termination of this Agreement, whichever occurs first, notwithstanding the fact that the final map may be filed in phases. Each 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, 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. SCE.1 -6- 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, the Developer shall have the right, at its election, to apply for a new permit to replace a permit that has expired or is about to expire. 5.5. Modification Of Approvals. Throughout the term of this Agreement, the Developer shall have the right, at its election and without risk to any right that is vested in it pursuant to this section, to apply to City for minor modifications to Project Approvals and Subsequent Approvals. The approval or conditional approval of any such minor 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 the Developer if all infrastructure required 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. In no event shall building permits be allocated on any annual numerical basis or on any arbitrary allocation basis. 5.7. Moratorium on Development. Nothing in this Agreement shall prevent City, whether by the City Council or through the initiative or referendum process, from adopting or imposing a moratorium on the processing and issuance of Subsequent Approvals and building permits and on the finalizing of building permits by means of a final inspection or certificate of occupancy, provided that the moratorium is adopted or imposed (i) on a City -wide basis to all substantially similar types of development projects and properties with similar land use designations and (ii) as a result of a utility shortage or a reasonably foreseeable utility shortage, including without limitation a shortage of water, sewer treatment capacity, electricity or natural gas. 6. Developer Agreements. 6.1. The Developer shall comply with (i) this Agreement, (ii) the Project Approvals, and (iii) all Subsequent SCE.1 -7- Approvals for which it was the applicant or a successor in interest to the applicant. 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 each building permit, Developer shall pay City a fee to be used for park improvements within the City of Moorpark. The amount of the fee shall be twenty -five cents ($.25) per square foot of gross floor area. The fee shall be adjusted annually (commencing one (1) year after the first building permit is issued within the Project Area 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 Development Agreement is approved by the City Council (e.g., if approval occurs in June, then the month of February is used to calculate the increase). This fee may be expended by City in its sole and unfettered discretion. 6.4. As a condition of the issuance of each building permit for any use within the boundaries of the Project Area, 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 effective date of this Agreement, the amount of the Development Fee shall be Twenty One Thousand Dollars ($21,000.00) per acre of each lot on which the building is located. The fee shall be adjusted annually (commencing one (1) year after the first building permit is issued within the Project Area 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 Development Agreement is approved by the City Council (e.g., if approval occurs in June, then the month of February is used to calculate the increase). SCE.1 -8- 6.5. As a condition of the issuance of each building permit for any use within the boundaries of the Project Area, 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 effective date of this Agreement, the amount of the Citywide Traffic Fee shall be Eighteen Thousand Dollars ($18,000.00) per acre of each lot on which the use is located. Commencing on January 1, 2001, and annually thereafter, the Citywide Traffic Fee shall be increased to reflect the change in the State Highway Bid Price Index for the twelve (12) month period that is reported in the latest issue of the Engineering News Record that is 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 Citywide Traffic Fee shall remain at its then current amount until such time as the next subsequent annual indexing which results in an increase. 6.6. On the operative date of this Agreement, Developer shall pay all outstanding City processing and environmental processing costs related to the project and preparation of this Agreement 6.7. Developer agrees to pay Air Quality Fees, that are to be calculated by City at its sole and unfettered discretion consistent with similar projects in the City as a condition on each Subsequent Approval within the boundaries of the Project Area. The Air Quality Fees may be expended by City in its sole discretion for reduction of regional air pollution emissions and to mitigate residual Project air quality impacts. 6.8. Developer agrees to cast affirmative ballots for the formation of an assessment district and levying of assessments, for the maintenance of parkway and median landscaping, street lighting 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. SCE.1 -9- 6.9. 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 Police Facilities Fees, Fire Facilities Fees, Library Facilities Fees, entitlement processing fees, and plan check and permit fees for buildings, and public improvements. Developer further agrees that unless specifically exempted by this Agreement, it is subject to all fees imposed by City at the operative date of this Agreement and such future fees imposed as determined by City in its sole and unfettered discretion so long as said fee is imposed on similarly situated properties. 6.10 Prior to City Council action on any Subsequent Approval, or grading of the property, whichever occurs first, Developer agrees to provide City an irrevocable offer of dedication to dedicate right -of -way at no cost to City for the future 118 bypass along the entire length of the west side of the property, outside of the easements for the Gabbert Channel. The right -of -way shall be one hundred feet (1001) wide plus any necessary slope easements to accommodate a level 100' right -of -way and slope easements to accommodate a grade separation crossing of the railroad tracks along the southern boundary. Developer further agrees to dedicate access rights from the property to the City for the 118 bypass. City shall have final approval of the location, legal description and use of the property offered for dedication. City may transfer its interest in the property after acceptance of its dedication tc any other public entity. 6.11. Developer agrees that as part of any grading of the property the right -of -way for the future 118 bypass shall be graded per City direction. 6.12. Developer agrees to comply with all the provisions of the Hillside Management Ordinance (Chapter 17.38 of the Municipal Code) of the City. 6.13. Developer agrees to pay a pro -rata share, as determined by the City at its sole and unfettered discretion, for the funding and construction of the improvements identified in the Gabbert and Walnut Canyon Channels Deficiency Study. Developer also acknowledges that interim improvements may also be necessary to facilitate any new use or development of the property and Developer agrees that they shall be responsible for SCE 1 -10- any such interim improvements as their sole responsibility, without credit of these costs, except as may be provided in the implementation plan for the Gabbert and Walnut Canyon Channels Deficiency Study. 6.14. Prior to any subdivision or new use of the property, Developer agrees to acquire and construct, at their sole cost, dedicated public access to the properties, as approved by the City Council. Secondary access to comply with City and public safety requirements shall also be provided at their sole cost. 6.15. Developer agrees to not oppose creation of a redevelopment Project Area (as defined by applicable State law) encompassing any part of the Property provided that the Project Area is consistent with the rights of Developer under this Agreement. 6.16. Developer agrees not to request any concession, waiver, modification or reduction of any fee, regulation, requirement, policy or standard condition for any Subsequent Approval and further agrees to pay all fees imposed by City for future buildings, so long as said fees are also imposed in a similar manner on similar projects. 6.17. Prior to the effective date of the Ordinance approving Zone Change No. 97 -6, Developer shall execute in favor of City and record in the Office of the County Recorder of the County of Ventura a Covenant Running with the Land (Covenant) as set forth in Exhibit "B" attached hereto and incorporated herein to limit use of the Property. 6.18. Developer agrees that as a condition of the City's approval of the first Subsequent Approval for the Property, Developer shall submit improvement plans to improve Gabbert Road from the Union Pacific Gabbert Road rail crossing to a point approximately one hundred twenty -five (125) feet north of the rail crossing to four travel lanes, two eight (8) foot bike lanes and two ten (10) foot parkways inclusive of sidewalks ( Gabbert Road improvements). The plans for the Gabbert Road improvements must be approved by the City and a surety in an amount and form determined by the City in its sole and unfettered discretion to guarantee this improvement shall be provided prior to approval of the first final Map for the Property occurring after the operative date of this Agreement. The Gabbert Road improvements shall be constructed prior to issuance of a building permit for any portion of the Property that exceeds forty SCE.1 -11- percent (40 %) of the acreage of the total of all lots created by the recordation of the first final map for the Property occurring after the operative date of this Agreement In the event the Improvements required pursuant to Section 6.21 of this Agreement are constructed, accepted by the City and open to the public prior to the issuance of a building permit for any portion of the Property that exceeds forty percent (40 %) of the acreage of the total of all lots created by the recordation of the first final map for the Property occurring after the operative date of this Agreement, then the improvements required by this Section 6.18 shall not be required to be constructed by the Developer. 6.19. Prior to City action on the first Subsequent Approval for the Property, Developer shall provide a traffic study to determine if signalization of the intersection of the Gabbert Road /Poindexter Avenue is needed. Developer agrees that City at its sole and unfettered discretion may condition any Subsequent Approval of the Property to construct the traffic signal or pay a fair share payment at the above intersection. Construction of the signal, if required, shall occur at the same time as the Gabbert Road improvements in Section 6.18, above, or such later date as determined by the City Council at its sole and unfettered discretion. 6.20. Developer shall construct a thirty -two (32) foot wide paved access road (paved access road) to the Property to serve as the primary access until such time as the Improvements referenced in Section 6.22 are constructed. At such time as the Improvements in Section 6.21 are opened to the public, the paved access road shall become an emergency access only for the Property. The paved access road shall be located generally following the existing unpaved access road to the Property with the final location of said paved access road to be determined by the City at its sole and unfettered discretion. The paved access road shall be constructed to City Standards for an industrial street but with no requirement for curb, gutter, or sidewalk except curbs that may be determined necessary to provide for positive drainage. 6.21. Prior to issuance of a building permit for any portion of the Property that exceeds seventy percent (70 %) of the acreage of the total of all lots created by the recordation of the first final Map for the Property occurring after the operative date SCE.: -12- 7. of this Agreement, Developer shall cause to be constructed a street extending north from Los Angeles Avenue (SR 118) including an underground crossing of the Union Pacific railroad tracks to a point approximately six hundred (600) feet north of said railroad tracks (Improvements) within the area of the offer of dedication required of Developer in Section 6.10 of this Agreement. The preliminary improvement plans must be approved by the City and a surety in an amount and form determined by the City in its sole and unfettered discretion to guarantee the Improvements shall be provided prior to approval of the first final map for the Property occurring after the operative date of this Agreement. Prior to issuance of a building permit for any portion of the Property that exceeds forty percent (40 %) of the acreage of the total of all lots created by the recordation of the first final map for the Property occurring after the operative date of this Agreement, City must approve in it sole and unfettered discretion the final design plans and specifications for the Improvements and a financing plan that demonstrates the ability to fund the Improvements. This financing plan may include at City's sole and unfettered discretion, use of Citywide Traffic monies. City Agreements. 7.1. City shall use its best efforts to process plan checking and related processing for the project in an expedited manner. 7.2. City shall exempt this project from payment of the Gabbert Road /Casey Road Area of Construction (AOC) fees. 7.3. City agrees that upon receipt of a landowners' petition by developer and Developer's payment of a fee as determined necessary by City in its sole and unfettered discretion, City shall commence proceedings to form a Mello -Roos Community Facilities District ( "District ") and to incur bonded indebtedness to finance all or portions of the on site and off site public facilities, infrastructure and services that are required by this Agreement and Subsequent Approvals and that may be provided pursuant to the Mello -Roos Community Facilities Act of 1982 (the "Act "); provided, however, the City Council, in its sole and unfettered discretion, may abandon establishment of the District upon the conclusion of the public hearing required by California Government Code Section 53321 and /or deem it SCE.1 -13- unnecessary to incur bonded indebtedness at the conclusion of the hearing required by California Government Code Section 53345. The formation, type of assessment district (if City determines another type of assessment district other than District is more appropriate) and method and spread of assessment shall be at the City's sole and unfettered discretion. 7.4. If requested in writing by Developer and limited to City's legal authority, City 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 which are outside Developer's legal boundaries. The process shall generally follow Government Code Section 66457 et. seq. and shall include the obligation of Developer to enter into an agreement with City, guarantee 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, and City overhead expenses of fifteen percent (15 %) on all out -of- pocket costs and City staff costs. 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 in its sole and unfettered discretion. 9. Demonstration of Good Faith Compliance. In order to ascertain compliance by the 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 the Developer hereunder or render this Agreement invalid or void. 10. Authorized Delays. Performance by any Party of its obligations hereunder, other than payment of fees, and Developer's obligations and restrictions on development as provided for in Sections 6.18, 6.19, 6.20, and 6.21 of this Agreement 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 SCE. 1 -14- ascertained. For purposes hereof, Excusable Delay shall mean delay that directly affects, and is beyond the reasonable control of, the Party claiming the delay, including without limitation: (a) act of God; (b) civil commotion; (c) riot; (d) strike, picketing or other labor dispute; (e) shortage of materials or supplies; (e) damage to work in progress by reason of fire, flood, earthquake or other casualty; (f) failure, delay or inability of City to 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 (b) 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 (c) fails to make any payments required under this Agreement; or (d) materially breaches any of the other provisions of the Agreement and the same is not cured within the time set forth in a written notice of violation from City to Developer, which period of time shall not be less than ten (10) days from the date that the notice is deemed received, provided if Developer cannot reasonably cure the breach within the time set forth in the notice, Developer fails to commence to cure the breach within such time limit and diligently effect such cure thereafter. 11.2. Default by City. City shall be deemed in breach of this Agreement if it: (a) materially breaches any of the provisions of the SCE.1 -15- Agreement and the same is not cure within the time set forth in a written notice of violation from Developer to City, which period shall not be less than ten (10) days from the date the notice is deemed received, provided if City cannot reasonably cure the breach within the time set forth in the notice, City fails to commence to cure the breach within such time limit and diligently effect such cure thereafter. 11.3. Content of Notice of Violation. Every notice of violation shall state with specificity that it is given pursuant to this section of the Agreement, the nature of the alleged breach, and the manner in which the breach may be satisfactorily cured. The notice shall be deemed given on the date that it is personally delivered or on the third day following the day after 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. 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 the Developer shall be injunctive relief and /or specific performance. In addition, and notwithstanding any other language of this Agreement, if the breach is of Subsection 6.4 or 6.5 or 6.9 or 6.10 or 6.18 or 6.19, or 6.20, or 6.21 of this Agreement, City shall have the right to withhold the issuance of building permits 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 the Developer if it violates any City ordinance or state statute. SCE.1 -16- 12. Mortgage Protection. At the same time that City gives notice to the Developer of a breach, City shall send a copy of the notice to each holder of record of any deed of trust on the portion of the Property in which Developer has a legal interest ( "Financier "), provided that the Financier has given prior written notice of its name and mailing address to City and the notice makes specific reference to this section. The copies shall be sent by United States mail, registered or certified, postage prepaid, return receipt requested, and shall be deemed received upon the third (3rd) day after deposit. Each Financier that has given prior notice to City pursuant to this section shall have the right, at its option and insofar as the rights of City are concerned, to cure any such breach within fifteen (15) days after the receipt of the notice from City. If such breach cannot be cured within such time period, the Financier shall have such additional period as may be reasonably required to cure the same, provided that the Financier gives notice to City of its intention to cure and commences the cure within fifteen (15) days after receipt of the notice from City and thereafter diligently prosecutes the same to completion. City shall not commence legal action against Developer by reason of Developer's breach without allowing the Financier to cure the same as specified herein. Notwithstanding any cure by Financier, this Agreement shall be binding and effective against the Financier and every owner of the Property, or part thereof, whose title thereto is acquired by foreclosure, trustee sale or otherwise. 13. Estoppel Certificate. At any time and from time to time, any Developer may deliver written notice to City and City may deliver written notice to the 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. 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, SCE .i -17- 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 Mutual Consent. In accordance with the provisions of Ordinance No. 59 of City or any successor thereof then in effect, this Agreement may be amended or terminated, in whole or in part by mutual consent of City and the Developer. 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. The 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, the 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 the Project Approvals or any Subsequent Approvals. 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 unless said term is amended or the Agreement is sooner terminated as otherwise provided herein. Upon expiration of the term or earlier termination of this Agreement, the Parties shall execute any document reasonably SCE.1 -18- 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 "C" 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 contains the entire agreement between the Parties regarding the subject matter hereof, and all prior agreements or understandings, oral or written, are hereby merged herein. This Agreement shall not be amended, except as expressly provided herein. 22. Waiver. No waiver of any provision of this Agreement shall constitute a waiver of any other provision, whether or not similar; nor shall any such waiver constitute a continuing or subsequent waiver of the same provision. No waiver shall be binding, unless it is executed in writing by a duly authorized representative of the Party against whom enforcement of the waiver is sought. 23. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall be effective to the extent the remaining provisions are not rendered impractical to perform, taking into consideration the purposes of this Agreement. 24. Relationship of the Parties. Each Party acknowledges that, in entering into and performing under this Agreement, it is acting as an independent entity and not as an agent of the other Party 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. SCE. 1 -19- 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 Ordinance No. 59 of City or any successor thereof then in effect. 27. Cooperation Between City and Developers. City and each Developer shall execute and deliver to the other all such other and further instruments and documents as may be necessary to carry out the purposes of this Agreement. 28. Rules of Construction. The captions and headings of the various sections and subsections of this Agreement are for convenience of reference only, and they shall not constitute a part of this Agreement for any other purpose or affect interpretation of the Agreement. Should any provision of this Agreement be found to be in conflict with any provision of the Project Approvals or the Subsequent Approvals, the provision of this Agreement shall prevail. 29. Joint Preparation. This Agreement shall be deemed to have Seen 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 under this section shall include attorneys' fees on any appeal and any post - judgment proceedings to enforce the judgment. This provision is separate and several and shall survive the merger of this Agreement into any judgment on this Agreement. 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. SCE.1 -20- IN WITNESS WHEREOF, Southern California Edison Company and City of Moorpark have each executed this Development Agreement on the date first above written. CITY OF MOORPARK By: Patrick Hunter Mayor 0 ATTEST Deborah S. Traffenstedt City Clerk Southern California Edison Company By: Diane Weinmueller Regional Manager SCE.1 EXHIBIT A LEGAL DESCRIPTION That portion of the West one -half of the Southeast one - quarter of Section 6, Township 2 North, Range 19 West, in Subdivision "L" of the Rancho Simi, as per map recorded in Book 3, page 7 of Maps, in the office of the County Recorder of Ventura County, described as follows: Beginning at a point in the Easterly line of the West one - half of the Southeast one - quarter of said Section 6, said point being the intersection of said Easterly line with a line parallel with and 295 feet Northerly, measured at right angles, from the Northerly line of that certain parcel of land conveyed by H. C. Estes, et al. to Southern Pacific Railroad Company, by deed dated October 6, 1899, and recorded in Book 62, page 6 of Deeds, in the office of the County Recorder of said County, thence Westerly in a direct line to a point in the Westerly line of the West one -half of the Southeast one - quarter of said Section 6, said last mentioned point being the intersection of said Westerly line with a line parallel with and 270 feet Northerly, measured at right angles, from the Northerly line of said land conveyed to Southern Pacific Railroad Company; thence southerly along said Westerly line to said Northerly line, thence Easterly along said Northerly line to said Easterly line; thence Northerly along said Easterly line; thence Northerly along said Easterly line to the point of beginning. END OF LEGAL DESCRIPTION (Also identified as Assessor's Parcel No. 500 -0- 340 -235) EXHIBIT B COVENANT RUNNING WITH THE LAND THIS COVENANT is made this day of , by and between the A -B Properties and Southern California Edison Company (Covenantors ") and the City of Moorpark ( "Covenantee"). WHEREAS, Covenantor is the owner of certain real property (500.0.340.22 and 23) in the City of Moorpark, County of Ventura, more particularly described in Exhibit "A" attached hereto and made a part hereof ( "the Covenantor Property "); and WHEREAS, Covenantee is the owner of certain real property at 799 Moorpark Avenue, in the City of Moorpark, County of Ventura, more particularly described in Exhibit "B" attached hereto and made a part hereof ( "the Covenantor Property "); and WHEREAS, Covenantee is willing to rezone the Covenantor Property from Agricultural Exclusive (AE) to Limited Industrial (M -2) but for the concern that some of the uses that are presently, or may subsequently be, allowed by right or permit in the CPD zone are, or may be, inappropriate uses for the Covenantor Property because of its particular location; WHEREAS, Covenantor seeks to have the Covenantors Property rezoned from Agricultural Exclusive (AE) to Limited Industrial (M -2) but acknowledges that some of the uses that are presently, or may subsequently be, allowed by right or permit in the M -2 zone are, or may be, inappropriate uses for the Covenantor Property because of its particular location; and NOW, THEREFORE, in consideration of the mutual promises of the parties to this Covenant, each to the other as Covenantor and Covenantee, and expressly for the benefit of, and to bind, their successors in interest, the parties agree as follows: SCE.1 1. Covenantee agrees to adopt an ordinance rezoning the Covenantor Property from Agricultural Exclusive (AE) to Limited Industrial (M -2); 2. Covenantor agrees that, commencing on the effective date of the ordinance rezoning the Covenantor Property from Agricultural Exclusive (AE) to Limited Industrial (M -2). Subject to the following restrictions in addition, and superseding the M -2 regulations. A. Primary uses, except agricultural crops, shall be conducted within completely enclosed buildings and metal faced buildings shall not be allowed as principal buildings. Outside storage and operations shall not be allowed as primary uses, only accessory outside storage shall be allowed, subject to the same limitations as M -1 (confined to the area to the rear of the principal building or the rear two - thirds of the property, whichever is more restrictive, and screened from view from any property line by appropriate walls, fencing, earth mounds, or landscaping). B. The following uses shall not be allowed as a primary use: • Manufacturing - Batteries • Manufacturing - Metal industries, primary; Rolling, drawing, and extruding • Manufacturing - Rubber and plastics products • Manufacturing - Tire retreading and recapping • Manufacturing - Cement, concrete and plaster products • Mini - storage • Recreational vehicle storage • Signs - Freestanding off -site advertising signs • Transportation services - Truck storage, overnight 3. Covenantor and Covenantee agree that, commencing on the effective date of the ordinance rezoning the Covenantor Property from Agricultural Exclusive (AE) to Limited Industrial (M -2), all uses specified in Paragraph 2.B. hereof that are presently allowed or that at any time in the future may be allowed in the M -2 (Limited Industrial) zone, whether by right or by permit, shall be deemed transferred from the Covenantors Property to the Covenantee Property for the benefit of the Covenantee Property. 4. Covenantors and Covenantee agree that from time to time Covenantee may substitute any other property owned by Covenantee on the date of the substitution for the Covenantee Property ( "the Substitute Covenantee Property ") without the consent of Covenantor by the recordation of an amendment to ffm this Covenant. The amendment shall describe the Substitute Covenantee Property and shall provide that, commencing on the date of recordation of the amendment, all uses not specified in Paragraph 2 hereof that are presently allowed, or that at any time in the future may be allowed, in the M -2 (Limited Industrial) zone, whether by right or by permit, shall be deemed transferred from that Covenantor Property to the Substitute Covenantee Property for the benefit of the Substitute Covenantee Property. 5. All of the covenants, restrictions, and limitations set forth herein shall run with the Covenantee Property and the Covenantor Property and shall benefit and bind all persons, whether natural or legal, having or acquiring any right, title, or interest in any portion of the Covenantee Property or the Covenantor Property. Each grantee of a conveyance or purchaser under a contract of sale or similar instrument that covers any right, title, or interest in or to any portion of the Covenantee Property or the Covenantor Property, by accepting a deed or a contract of sale or similar instrument, accepts the conveyance or sale subject to, and agrees to be bound and benefited by, all of the covenants, restrictions and limitations set forth herein. 6. Nothing in this Covenant shall be construed so as to limit the right of Covenantee to rezone, or the right of Covenantor to petition Covenantee to rezone, the Covenantor Property in the future. 7. This Covenant shall remain in full force and effect until such time as an ordinance rezoning the Covenantor Property from Agricultural Exclusive (AE) to Limited Industrial (M -2) to another zone designation becomes effective. 8. This Covenant may be enforced by proceedings at law or in equity against any person who violates or attempts to violate a covenant, restriction or limitation hereof. The prevailing party shall be entitled to recover such attorneys' fees and court costs as it reasonably incurs in such a proceeding. 9. In the event any provision of this Covenant is found to be invalid or unenforceable in any proceeding at law or in equity, such finding shall not affect the other provisions of this Covenant, which shall remain in full force and effect. B -3 10. Either party may record in the office of the Recorder of Ventura County this Covenant or any amendment hereto specified in Paragraph 4 hereof without the consent of the other party. IN WITNESS WHEREOF, Covenantor and Covenantee have executed this Covenant on the date first above written COVENANTORS COVENANTEE SOUTHERN CALIFORNIA CITY OF MOORPARK EDISON COMPANY B -4 EXHIBIT C To City: City of Moorpark 799 Moorpark Avenue Moorpark, CA 93021 Attn. City Manager To Developer: Southern California Edison Company 100 Long Beach Blvd, Suite 1004 Long Beach, CA 90802 Attn. Regional Manager C -1 Ordinance No. 250 Page 60 STATE OF CALIFORNIA ) COUNTY OF VENTURA ) ss. CITY OF MOORPARK ) I, Deborah S. Traffenstedt, City Clerk of the City of Moorpark, California, do hereby certify under penalty of perjury that the foregoing Ordinance No. 250 was adopted by the City Council of the City of Moorpark at a meeting held on the 16`h day of December, 1998, and that the same was adopted by the following vote: AYES: Councilmembers Evans, Rodgers, Wozniak and Mayor Hunter NOES: Councilmember Harper ABSENT: None ABSTAIN: None WITNESS my hand and the official seal of said City this 6th day of January, 1999. Deborah S. Traffenste t, City Clerk (seal)