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HomeMy WebLinkAboutAGENDA REPORT 1994 0720 CC REG ITEM 11GDRik-iJ 7/ y SETTLEMENT AGREEMENT -. AND XUTOAL RELEASE `* / 9 4 Conejo Freeway Properties, Ltd. ( "Conejo"), a Cai nia --� limited partnership, and Simi - Moorpark Freeway Properties, Ltd. ( "Simi "), a California limited partnership, hereinafter collective- ly referred to as "Plaintiffs ", and City of Moorpark ( "City ") and City Council of the City of Moorpark ( "City Council "), hereinafter collectively referred to as "Defendants ", in consideration of the promises and covenants made herein, agree as follows: 1. Nature and Effect of Agreement. This Agreement consists of a compromise, settlement and release of Plaintiffs, claims against Defendants arising from the allegations contained in the action described in Section 2 and of Defendants, claims against Plaintiffs arising from Condition No. of Tract Map No. By executing this Agreement, each of the parties intends to and does extinguish said claims heretofore existing between them. This Agreement is not, and shall not be treated as, an admission of liability by any party for any purpose.. The terms of this Agreement are contractual and not. i mere .recital. 2. Nature and Status of Dispute. On February 27, 1991, Plaintiffs filed a "Verified Petition f'or Writ of Mandate and Complaint for: (1) Inverse Condemnation; (2) Denial of Substantive and Procedural Due Process; (3) Deprivation of Civil Rights; and (4) Declaratory and Injunctive Relief" against Defendants in the Superior Court of the State of California for the County of Ventura, designated as Case No. 7: "5029 (the "Action "). 3. Conditions Precedent,. The effectiveness of this Agreement is conditioned upon the following conditions precedent ( "Conditions Precedent "): a. Certification of the "Subsequent Environmental Impact Report" for the pending amendment of the Carlsberg Specific Plan (the "SEIR"), adoption of the pending amendment of the Carlsberg Specific Plan dated Specific Plan ") and adoption of related Zoning�Ordinance Articled19 Carlsberg Specific Plan (the "Carlsberg Ordinance ") at the 1994 meeting of the City COuAjcil . b. The certification and adoptions set forth in Subsection 3a being deemed final. If, within thirty (30) days after the notice required by California Public Resources Code Section 21152 is posted in the r-- ,ffice of the County Clerk of Ventura County, (i) no action is commenced to attack, review, set aside, void or otherwise annul the SEIR, the Amended Specific Plan or the Carlsberg Ordinance, they shall all be deemed final on the thirty -first (31st) day or (ii) an action is commenced to attack, review, set aside, void or otherwe annul the SEIR, the Amended LAX:92572.19 Specific Plan or the Carlsberg Ordinance, they shall all be deemed final on the day that a judgment against the plaintiffs) or Petitioner(s) in the action becomes final. 4. Execution of Dismissal. Plaintiffs hereby (i) direct their attorney, Allen F. Camp, Esq., to execute a dismissal with prejudice of the entire Action and to deliver the dismissal to Defendants' attorney, Cheryl J. Kane, Esq., concurrently with the execution of this Agreement by Defendants and (ii) authorize Cheryl J. Kane to file the dismissal in the Superior Court as soon as this Agreement becomes effective pursuant to Section 3. 5. Obligations and Covenants. a. Defendants Agree: (1) Upon receipt of a landowners' petition by Plaintiffs and Plaintiffs' payment of a fee, as prescribed in California Government Code Section 53318, Defendants shall commence proceedings to form a Mello -Roos Community Facilities District ( "District ") and to incur bonded indebtedness to finance all or portions of the public facilities, infrastructure and services that are required by the Amended Specific Plan and that may be provided pursuant to the Mello -Roos Community Facilities Act of 1982 (the "Act "); provided, however, the City Council may, in its sole and unfettered discretion, 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. In the event that a District is formed, Plaintiffs acknowledge and agree that the special tax levied against ariy residential lot or residence thereon shall be prepaid in full prior to the close of escrow on the initial sale of the develop d lot by the builder of the residence. (2) In 1994 and 1995, Defendants shall permit Simi to make application(s) for a total of residential development allotments for the property described in Exhibit A, attached hereto and incorporated herein by this reference, and shall permit Conejo to make applications(s) for a total. of residential development allotments for the property described in Exhibit B, attached hereto and incorporated herein by this reference. Defendants acknowledge that there are currently a sufficient number of unallocated residential development allotments under Measure F, as amended by Ordinance No. 103, ( "Amended Measure F") to accommodate awarding the residential development allotments referenced herein. Defendants further acknowledge that they have no present, actual knowledge of any reason that would preclude the award of the residential development allotments as referenced herein, provided that the applications satisfy all of the requirements of Amended Measure F and of Resolution Nos. ;B7 421. and 88 -522 (the "Implement- _,AX: ing Resolutions "). Defendants covenant that they shall follow and abide by the provisions of Amended Measure F and the Implementing Resolutions. Plaintiffs acknowledge that any residential develop- ment allotments that are awarded for either of the properties referenced herein shall run with that land and may not be assigned or transferred to any other property or to any other project. (3) Defendants shall use their best efforts to assure timely processing of (i) applications for subdivision maps, planned development permits, and residential development allot- ments, (ii) requests for plan checks and review of improvement plans and specifications, and iii applications for building permits and grading permits. (4) Defendants shall exempt Plaintiffs from the provisions of (i) any successor ordinance to Amended Measure F that limits, by number, the building permits that may be issued for residential construction or the buildable lots that may be developed for residential purposes ( "Successor Ordinance ") , (ii) the provisions of any future City ordinances that are related to development standards, hillside preservation or grading standards should such provisions be in conflict with the Amended Specific Plan, (iii) the imposition of any capital development fee by City, except as expressly provided in Subsection 5(b) (4) or as expressly required by another governmental entity, and (iv) the imposition of any traffic mitigation fee, except as expressly provided in Subsection 5(b)(5) or Subsection 5(b)(6). All residential devel- opment allotments that are awarded to Plaintiffs prior to the expiration of Amended Measure F on December 31, 1995 shall be deemed vested as of December 31, 1095, and no such allotment shall be rescinded, set aside, voided of otherwise annulled by (i) any subsequent action of Defendants, ii) any Successor Ordinance or (iii) the passage of time. (5) Defendants shall not amend the SEIR, the Amended Specific Plan or the Carlsberg Ordinance without the express written concurrence of Plaintiffs b. Plaintiffs Agree: (1) Plaintiffs shall reimburse Defendants, in an amount not to exceed Twenty Thousand Dollars ($20,000), for legal expenses, including attorneys' fees and costs, incurred by Defendants in the Action and in the preparation of this Agreement. Payment shall be due thirty (30) days after receipt by Plaintiffs of Defendants' invoice for such expenses, which invoice Defendants shall not issue until this Agreement becomes effective pursuant to Section 3. (2) Within the boundaries of the property described in Exhibit A, Simi shall dedicate, at its sole cost and expense, park land and nature preserve land to the City of Moorpark as shown LAX:92572.19 Al"li on the Amended Specific Plan Exhibit 7. Within the boundaries of the property described in Exhibit B, Conejo shall dedicate, at its sole cost and expense, park land and nature preserve land to the City of Moorpark as shown on the Amended Specific Plan Exhibit 7. At their sole cost and expense, Plaintiffs shall make improvements to the park land dedicated pursuant to this Subsection and shall provide maintenance of the land and improvements, irrespective of which of the Plaintiffs made the dedication. The improvements shall nclude, at City's sole discre- tion, the following: (a) Softball field with a minimum of 300 foot outfield radius with no obstructions, backstop, foul line chain link fencing and fenced dugouts with concrete floors; (b) Regulation soccer field, 225 feet wide and 360 feet long with no obstructions, that does not overlap onto the softball field area, except as approved by the City Council, and two (2) semi - permanent goals; (c) Two tenni7 courts; (d) Full basketball court; (e) Children's play equipment/ apparatus and tot lot similar in size and area a,; at City's Tierra Rejada Park; (f) Concrete Mock restroom with tile roof; (g) Picnic shelter with solid roof and matching tile to the restroom; and (h) Off - street parking with a minimum of 30 standard sized parking spaces. Final design, plans and specifications shall be as approved by the City Council, including applicable handicapped requirements, and shall include but not be limited to grading, drainage, hardscape (walkways, bike paths, etc.) landscape (trees, shrubs, groundcover and turf), security lighting for the park and parking lot, and miscellaneous amenities in quantities as determined necessary by City (tot .lot and park perimeter fencing, trash receptacles, trash bin enclosures, bike racks, barbecues, Picnic tables, pay telephone, identification monument signs, and other signage, etc.). In addition to water, sewer and electrical services, the improvements shall include stub out into the park at a location determined by City for natural gas, telephone, and cable television services. At their sole cost and expense, Plaintiffs shall: (i) design the park and submit conceptual plans for City approval, (ii) prepare final design, plans and specifications and submit the same to City Council fc>r approval, (iii) submit the LAX:92572.19 rI approved final plans and specifications to City for plan check along with appropriate fees, and (iv) pay City for inspection of the park construction. The park shall be dedicated to City improved and available (open) to the public prior to the occupancy of the 227th dwelling unit within the boundaries of the Amended Specific Plan. After the park is opened to the public and prior to its formal acceptance by City, Plaintiffs shall provide a minimum of one year's maintenance for the park land and improvements, including all labor, materials, and water, in accordance with the specifica- tions used by City at its parks. The nature preserve land shall be dedicated to the City of Moorpark at such time as is specified in the Amended Specific Plan. Plaintiffs and Defendants acknowledge that the above described improvements along with the dedication of the above - described park land and nature preserve shall be deemed to satisfy the "Quimby" requirement set forth at California Government Code Section 66477 et seg. for all subsequent subdivision maps within the Amended Specific Plan area for a maximum of residential units. Plaintiffs shall secure the above described improvements and the one year maintenance requirement by the execution of City's standard subdivision agreement prior to the approval of the first. final tract map or the first fina parcel. map within the Amended. Specific Plan area. (3) As a condition of the issuance of a building permit for each commercial or industrial use within the boundaries of the Amended Specific Plan, Plaintiffs shall pay City a fee, in an amount set by resolution of the City Council, to be used for park improvements within the City of Moorpark. The amount of the fee shall be the same as that paid for other commercial and industrial uses, but in no event shall the fee exceed fifty cents ($.50) per square foot of gross floor area. Institutional uses shall pay on the same basis as commercial and industrial uses, except that institutional uses which are exempt from secured property taxes shall be exempt from the fee. (4) As a condition of the issuance of a building permit for each residential, commercial or industrial use within the boundaries of the Amended Specific Plan, Plaintiffs shall pay City, except as provided in Section 11, a development fee as described herein (the "Development Fee ") and any capital develop- ment fee adopted by the City Council on or before March 31, 1995 and imposed on similar construction. The Development Fee may be expended by Defendants in their sole and unfettered discretion. On the effective date of this Agreement, the amount of the Development Fee shall be One Thousand Five Hundred and Eighty -Seven Dollars ($1,587) per residential unit and Four Thousand Four Hundred and Forty Three Dollars ($4,443) per gross acre of Sub- Region- al /Commercial (SR /C) or Business park (BP) land on which the LAX:92572.79 commercial or industrial use day of the month following becomes effective, the amount by one -half of one percent (0 month ( "monthly indexing "). exempt from secured property 1. is located. Commencing on the first the month in which this Agreement of the Development Fee shall increase .5 %) per month on the first day of the Institutional uses, whether or not taxes, shall be exempt from the fee. The Development Fee for commercial and industrial uses is intended to result in a total payment to City of not less than $324,339 on the effective date of this Agreement and is based upon the assumption that seventy -three (73) gross acres will be developed with SR /C and /or BP uses; to wit: $324,339 _ 73 gross acres = $4,443 per gross acre. If, on the Adjustment Date, as hereinafter defined in this paragraph, less than 73 gross acres are subdivided into lots of not more than ten (10) gross acres for SR /C and /or BP usage, the Development Fee for commercial and industrial uses shall be increased from $4,443 per gross acre to an amount per gross acre that would result in a total payment of $324,339, excluding the monthly indexing. The acreage shall be determined from the Initial Map, as hereinafter defined in this paragraph, or the Subsequent Map, as hereinafter defined in this paragraph, which is in effect on the Adjustment Date. The Adjustment Date shall. mean the date upon which the first building permit is issued for any commercial or industrial use within the boundaries of Tract Map 4785 or a subdivision map that is recorded in lieu of Tentative Tract Map 4785 (collectively the "Initial Map ") or the date upon which the first subdivision map is recorded over all, or a part of, the Initial Map 4785 (the "Subsequent Map "), whichever occurs first. The total amount of $324,339,, as increased by the monthly indexing, shall be paid in full to 7 City no later than the tenth (10th) anniversary of the issuance of the first building permit for any commercial or industrial use within the boundaries of the Initial Map or the tenth (10th) anniversary of the issuance of the first building permit for any commercial or industrial use within the boundaries of the Subsequent Map, whichever occurs first. The Initial Map and the Subsequent Map shall be so conditioned. The performance of the condition shall be secured in the manner provided by California Government. Code Section 66499 et sea. and the dollar amount of the security shall be subject to the monthly indexing. (5 ) As a condition of the issuance of a building permit for each residential, commercial or industrial use within the boundaries of the Amended Specific Plan, Plaintiffs shall pay City the Tierra Rejada /Spring Road. Area of Contribution Fee (the "AOC Fee ") . The AOC Fee shall be the dollar amount in effect at the time of the payment of the fee. Institutional uses shall pay on the same basis as commercial and industrial uses, except that institutional uses which are exempt, from secured property taxes shall be exempt from the fee. LAX:92572.19 f!i Payment of the AOC Fee shall represent payment in full of the "fair share" amounts required by traffic mitigation measures TC6, TC9, TC13 (cost of signal installation or modifica- tion at Spring,Road /Tierra Rejada Road only), TC14 and TC16 (cost of signal installation at Moorpark Road /Tierra Rejada Road only) and TC15 (cost of signal installation at "A" Street /Tierra Rejada Road only), as described in the SEIR. (6) As a condition of the issuance of a building permit for each residential, commercial or industrial use within the boundaries of the Amended Specific Plan, Plaintiff shall pay City a mitigation fee (the "Mitigation Fee "). The Mitigation Fee shall be Two Thousand Dollars ($2,000) per residential unit. The Mitigation Fee shall be Eleven Thousand Two Hundred Dollars ($11,200) per gross acre of the Sub - Regional /Commercial (SR /C) or Business Park (BP) lot on which the commercial or industrial use is located. Commencing on January 1, 1997, and annually thereafter, both categories of the Mitigation Fee shall be increased or decreased to reflect the change in the 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 31st of the preceding year ( "annual indexing "), but in no event shall either category of Mitigation Fee be decreased below the original dollar amount specified herein» institutional uses shall pay on the same basis as commercial and industrial uses, except that institutional uses which are exempt from secured property taxes shall be exempt from the fee. The Mitigation Fee for commercial and industrial uses is intended to result in a total payment to City of not less than $817,600 and is based upon the assumption that seventy -three (73) gross acres will be developed with SR /C and /or BP uses; to wit: $817,000 _ 73 gross acres = $11,200 per gross acre. If, on the Adjustment Date, as hereinafter defined in this paragraph, less than 73 gross acres are subdivided into lots of not more than ten (10) gross acres for SR /C and /or BP usage, the Mitigation Fee for commercial and industrial uses shall be increased from $11,200 per gross acre to an amount per gross acre that will result in the total payment of $817,600; provided, however, if the Adjustment Date occurs on or after January 1, 1997, said total payment amount shall be subject to the annual indexing, but in no event shall it be decreased below the original dollar amount specified herein. The acreage shall be determined from the Initial Map, as hereinaf- ter defined in this paragraph, ox- the Subsequent Map, as hereinaf- ter defined in this paragraph, which is in effect on the Adjustment Date. The Adjustment Date shall mean the date upon which the first building permit is issued for an }r commercial or industrial use within the boundaries of Tract Map 4785 or a subdivision map that is recorded in lieu of Tentative Tract Map 4785 (collectively the "Initial Map ") or the date upon which the first subdivision map is recorded over all, or a partt o, the Initial Map 4785 (the LAX:92572.19 J "Subsequent Map "), whichever occurs first. The total amount of $817,600, as may be increased by the annual indexing, shall be paid in full to City no later than the tenth (10th) anniversary of the issuance of the first building permit for any commercial or indus- trial use within the boundaries of the Initial Map or the tenth (10th) anniversary of the issuance of the first building permit for any commercial or industrial use within the boundaries of the Subsequent Map, whichever occurs first. The Initial Map and the Subsequent Map shall be so conditioned. The performance of the condition shall be secured in the manner provided by California Government Code Section 66499 et see. and the dollar amount of the security shall be subject to the annual :indexing. The Mitigation Fee may be expended by Defendants in their sole and unfettered discretion; provided, however, payment of the Mitigation Fee represents payment in full of the "fair share" amounts required by traffic mitigation measures TC12, TC13 (cost of signal installation or modification at State Route 23 northbound ramps /Tierra Rejada Road only), TC'14 (cost of signal installation or modification at State Route 23 southbound ramps /Tierra Rejada Road only) and TC17, as described in the SEIR. Payment of the Mitigation Fee does not represent payment, in full or in part, of certain traffic mitigation measures described in the SEIR that will be installed by others but for which Plaintiffs are required to pay "fair share" amounts to City. The "fair share" amounts shall be determined by the following percentages applied to the actual. c +.:)sts of said installations: TC7 TC10 (_%) and TC11 and TC13 (signal modification at Spring Road /Los Angeles Avenue on],l) The remaining traffic mitigation measures described in the SEIR, to wit: TC1, TC2, TC3, TC4 (100% of the improvements rather than the 63% provided for in the SEIR) , TCS, TC8, TC13 (signal at Science Drive /New Los Angeles Avenue only) and TC15 (signal at "A" Street / "B" Street: only) shall be installed by Plaintiffs at their sole cost and. expense, without off -set against the AOC Fee or the Mitigation Fee. The second Tierra Rejada westbound and eastbound lanes identified in the SEIR have been constructed by City (the "Wideninu:4 Project ") . Plaintiffs shall have no financial obligation with respect. to the Widening Project except as provided in this Agreement; provided, however, Conejo shall complete frontage improvements on the north side of Tierra Rejada Road adjacent to the property described in Exhibit "B" including, but not limited to, approximately eight (8) feet of paving, striping, curb and guttex, sidewalk, drainage, parkway landscaping and signage, no later than the issuance of the first building permit within the boundaries cf the property described in Exhibit "B ". (7) Except as expressly provided in Subsection 5(a)(4), all development withiri the boundaries of the Carlsberg LAX:92572.19 19 [2"'AFT Specific Plan shall be subject to all of the City's ordinances, rules, regulations and fees that are in effect at the time of zone clearance or at such earlier time as is prescribed by law. C. Simi Agrees: Simi hereby agrees to accept as a condition to the first tentative tract map or first parcel map on the property described in Exhibit A the obligation to widen to six lanes New Los Angeles Avenue from, but not including, the Arroyo Simi -New Los Angeles bridge east to the 23 Freeway ( the "Condi- tion"). If, in the future, Simi and Defendants mutually agree, a traffic study shall be performed by, or on behalf of, City at Simi's sole cost and expense to assess the cumulative traffic impacts of the actual use and development of the 73 acres zoned SR /C /BP and fronting onto New 1:.,os Angeles Avenue within the boundaries of the Amended Specific Plan as compared to the impacts and required mitigation forecast in the SEIR and the City's General Plan. In the event the City Council determines from said traffic study that six lanes on New Los Angeles Avenue, as described above, are not required, Defendants agree that they will consider a request by Simi to eliminate said Condition.. 6. Payment of Leaal Expenses by Plaintiffs. In the event any action is commenced to attack, review, set aside, void or otherwise annul this Agreement, the Amended Specific Plan, the SEIR or the Carlsberg Ordinance, in whole or in part, Plaintiffs shall hold City and its officers, employees, servants and agents harmless therefrom and from any order (:.)r _ udgment therein and shall reimburse City for all costs and expenses, including but not limited to attorneys' fees and coats, incurred by City to defend itself and any of its officers, employees, servants or agents against the action and all costs and expenses incurred by City to satisfy any order or judgment in the action. City may periodically invoice Plaintiffs for such legal. expenses, but not more often than once every thirty (30) days, and Pl intiffs shall pay each invoice in full within thirty (30) days after receiving the same. Notwith- standing anything herein to the ccantrary, the provisions of this Section shall not apply to any ac:ti+ :.)n brought by City or any one or more of its officers, employees, servants or agents in his or her official capacity or in their off.i°a::P capacities.. 7. Intervention by Plaintiff: "s.. In the event any action is commenced to attack, review, set a side, void or otherwise annul this Agreement, the Amended Spe9:.;ific Plan, the SEIR or the Carlsberg Ordinance, in whole or G.n part, Defendants shall give notice of the same to Plaintiffs„ ks permitted by law, Plaintiffs may intervene in the action as a rc=al party in interest, provided that intervention shall not relieve Plaintiffs of their obligations pursuant to Section 6. Defendaxl-s sha:'l not oppose any such intervention by Plaintiffs. 8. Covenant Not to Sue. Plaintiffs hereby covenant not to bring an action against Defendant., to attack, review, set aside, LAX: 92572.19 void or otherwise annul the Amended. Specific Plan, the SEIR or the Carlsberg Ordinance, in whole or in part, to recover any compensa- tion for any injury, damage, loss or deprivation of any right alleged to have been sustained as a result of the adoption of the Amended Specific Plan or the Carlsberg Ordinance by Defendants or the application of the same to the properties described in Exhibits A and B, or for any other relief.. 9. Release and Discharge. Each party hereby fully releases and forever discharges the other parties, their predecessors and successors, and all other persons, known or unknown, from any and all past, present and future claims and causes of action which have accrued, or may later accrue, by reason of any injury, damage or loss which has been sustained, or may be sustained, as a result of the claims described in Section 1, 10. Unknown Claims. a. Each party acknowledges and agrees that the release it gives pursuant to Section 8 applies to all claims which it may have against the other parties for injuries, damages or losses to its person or property, real or personal, whether those injuries, damages or losses are known or unknown, foreseen or unforeseen, or patent or latent. Each party waives application of California Civil Code Section 1542. b. Each party certifies that it has read California Civil Code Section 1542, set forth below, and indicates that fact by having its authorized representative sign his or her initials here: f PLr intiff::' initials] [Defendants' initials] "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." C. Each party understands and acknowledges that the significance and consequence of this waiver of California Civil Code Section 1542 is that even if it should eventually suffer additional injuries, damages or losses arising out of any claim described in Section 1, it will not: be able to make any claim or bring any action therefor. Furthermore, each party acknowledges that it intends these consequences even as to injuries, damages or losses that may exist as of the effective date of this Agreement but which it does not know exist, and which, if known, would materially affect its decision to execute this Agreement, regard- LAX: 92572.19 10 �RAFF less of whether its lack of knowledge is the result of ignorance, oversight, error, negligence or any other cause. 11. No Assignment or Transfer. Each party represents and warrants to each of the other parties that it has not assigned or transferred, or purported to assign or transfer, to any person, any claim released by this Agreement. Each party agrees to indemnify and hold harmless each of the other parties against any claim, including the payment of attorneys' fees and costs actually incurred, whether or not litigation is commenced, based upon any such assignment or transfer or purported assignment or transfer. 12. Plaintiffs' Remedies for Breach. Defendants shall have the right to cure any alleged breach of this Agreement within ninety (90) days after receipt of written notice thereof from Plaintiffs. In the event the breach is not fully cured within such time period, Plaintiffs shall have the right thereafter, but not before, to (i) revive and pursue any causes of action set forth in the Action as though the same were a breach of this Agreement and (ii) pursue any other claims, causes of action, rights and remedies available to them at law or in equity. In the event the uncured breach is of any provision of Subsection 5(a) (4) or Subsection 5(a)(5), as determined in a final ;:oust action, Plaintiffs' shall be relieved of their obligation t.:� pay City the Development Fee described in Subsection 5(b)(4) henceforth from the date of the breach, in addition to, and cumulative with, any other remedy provided herein. Notwithstanding anything herein to the contrary, Defendants shall not be deemed in preach of any provision of this Agreement that is held unconsti.t.tational, invalid or otherwise unenforceable by a court of competent jurisdiction.. If any such provision is so held unconst:itu-l::ional, invalid or otherwise unenforceable, the remainder of this Agreement shall be valid and shall be enforced to the extent pie-m.tted by law. 13. Defendants' Remedies for_,, Breach. Plaintiffs shall have the right to cure any alleged breach of this Agreement within ninety (90) days after receipt ctl written notice thereof from Defendants. In the event the breac,t; is not fully cured within such time period, Defendants shall have the right thereafter, but not before, to (i) amend the Amended Specific Plan and Carlsberg Ordinance to be consistent with the Specific Plan and Rezoning alleged in Section 2 of the Act.i.on, notwithstanding any other provision of this Agreement to the contrary, and (ii) pursue any claims, causes of action, rights anci remedies available to them at law or in equity. Plaintiffs hereby agree that the convent not to sue set forth in Section 7 shall d7), :end t�: any such amendment. 14. Advice of Attornev. Each party warrants and represents, that in executing this Agreement, it has relied upon legal advice from the attorney of its choice, that the terms of this Agreement have been read, and their consequences (including risks, complica- tions, and costs) have been comp:F:te1, explained, to it by that LAX: 92572.19 F0, attorney, and that it fully understands the terms of this Agree- ment. Each party further acknowledges and represents, that in executing this Agreement, it has not relied upon any inducements, promises or representations made by any other party or any person representing or serving any other party. 15. Conditions of Execution. Each party acknowledges and warrants that its execution of this Agreement is free and volun- tary. 16. Execution of Other Documents. In addition to, and concurrent with, the execution of this Agreement, Simi and Defendants shall execute a memorandum 'of this Agreement for recordation against the property described in Exhibit A and Conejo and Defendants shall execute a memorandum of this Agreement for recordation against the property described in Exhibit B. Each party shall cooperate fully in the execution of any and all other documents and in the completion of any additional actions that may be necessary or appropriate to give full force and effect to the terms and intent of this Agreement 17. Notices. Any notice °_o be given pursuant to this Agreement shall be in writing, and all such notices and any other document to be delivered shall be delivered by personal service or by deposit in the United States mail, certified or registered, return receipt requested, with portage prepaid, and addressed to the party for whom intended as fol.ows: TO DEFENDANTS: City of Moorpark 799 Moorpark Avenue Moorpark, CA 93021 Attn: 'it} Manager TO PLAINTIFFS: Attn: Any party may, from time to time, by written notice to the other parties, designate a different address which shall be substituted for the one above specified. Notices and other documents shall be deemed delivered upon receipt by personal service or upon the second (2nd) day after deposit i..n the United States mail. 18. Joint and Several Liability. Whenever the term "Plain- tiffs" is used herein, it shall refer to Conejo and Simi jointly and severally, and Conejo and Simi shall be jointly and severally liable. Whenever the term "Defendants" is used herein, it shall refer to City and City Council jointly and severally, and City and City Council shall be jointly and everally liable. LAX: 92572.19 L[ � AFT ,J 19. Plaintiffs' Successors. This Agreement shall run with the land and shall inure to the benefit of, and shall be binding upon, all officers, directors, employees, agents and representa- tives of Plaintiffs and on each of their successors. For purposes of this Agreement, Plaintiffs' successor shall mean and be limited to (i) any person who is a successor in interest to the property described in Exhibit A, or to any portion thereof, and (ii) any person who is a successor in interest to the property described in Exhibit B, or to any portion thereof. Neither this Agreement, nor any of the benefits or obligations hereunder, shall be assigned by Plaintiffs, except to a successor as defined herein. 20. Entire Agreement. This Agreement contains the entire agreement between the parties concerning the subject matter hereof. All prior agreements or understandings, oral or written, are hereby merged herein. 21. Motion to Enforce Terms of Settlement; Attorneys Fees. The court may enforce and interpret the terms of this Agreement. If a motion or action is required to enforce or interpret the terms of this Agreement, the order or judgment shall include reasonable attorneys' fees and costs incur:ied in bringing the motion or action. 22. Interpretation. Should interpretation of this Agreement, or any portion thereof, be necessary, it is deemed that this Agreement was prepared by the parties jointly and equally, and it shall not be interpreted against E =ither party on the ground that the party prepared the Agreement or caused it to be prepared. 23. Headings and Captions. The headings and captions of the various sections and subsections of this Agreement are for convenience and identification oniy and shall not be deemed to limit or define the content of thf? respective sections and subsections hereof. 24. Governing Law. This Agreement is entered into and shall be construed and interpreted in a::ordance with the laws of the State of California. 25. Counterparts. This Agreement may be executed in counterparts. 26. Incorporation into Amended Specific Plan. This Agreement shall be incorporated into, and made a part of the Amended Specific Plan. Executed at 1994. , California, on LAX: 92572.19 1 3 up R r 7 PLAINTIFFS Conejo Freeway Properties, Ltd., a California limited partnership :Ly M n d R e s e a r c h e r s , California corporation, the genera',: partner By: - - -._ [Title] Simi - Moorpark Freeway Properties, Ltd., a California limited partnership By: Land Researchers, Inc., a California corporation, the general partner By: [Title] DEFENDANTS City of Moorpark, a municipal corporation By: —___ _ Mayor CITY COUNCIL OF THE CITY OF MOORPARK By: -- - - - -- . Mayor ATTEST: "ity Clerk Lax:92572,i9 1 .1