HomeMy WebLinkAboutAGENDA REPORT 1994 0907 CC REG ITEM 11A 0$/16/94 09:01 613 236 Z70, una.,
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UTTLEIdE1VT AGREEMENT AND MUTUAL RELMABE
ITEM it A . ,
Conejo Freeway Properties, Ltd. ("Conejo") , a California
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.
8y 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 a mere recital.
2 . Nature and status of Dispute. On February 27, 1991,
Plaintiffs filed a "Verified Petition for 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. 115029 (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 , 1994 (the "Amended
Specific Plan") and adoption of related Zoning Ordinance Article 19
Carlsberg Specific Plan (the "Carlsberg Ordinance") at the
, 1994 meeting of the City Council.
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 office of the County Clerk of
Ventura county, (i) no action is commenced to attack, review, set
1A , _
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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 otherwise annul the SEIR, the Amended
Specific Plan or the Carlsberg ordinance, they shall all be deemed
final on the day that a judgment against the plaintiff(s) or
petitioner(s) in the action becomes final.
4. Execution of Dismissal. Plaintiffs hereby (i) direct
their attorney, Allen F. Camp, Esq. , Lu 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• peP n ants arse:
(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 , in its
sole and unfettered discretion, pay 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 any residential lot or residence
thereon shall be prepaid in full prior to the close of escrow on
the initial sale of the developed lot by the builder of the
residence. -
(2) . . , - _ . ' ,
te-All residential develo•ment within the boundaries of he Amended
Specific Plan shall be subl ect to the provisions of Measure F, as
-mss r.�rvr-•r,r•orc rr
amended by Ordinance No. 103. ("Amended Measure ") and of
Resolution Nos. 87-421 and 88-522 the "Im•lementin• Resolutions" ,
notwithstanding that the Residential Deve_opmezits-iagnt st
SY@m
im.osed b Amende• Measure F ma no • .er be n of ec an. to the
exclusion of any__otner ord nance _ #„ ��at .- -_ b umber the
2
ai1, 16 '94 08:57 213 236 2700 PAGE.003
08/16/94 09:03 $213 236 210' you•+
buildin• 'emits that_ma "_be issued for r-s s a ial construction or
the buildable lots that ma . - deve • • - • • _ e- _' - , •=��oses.
o nel • , 995 a • i ear thereafter, Simi may make
applications) for a total of — residential development allot-
ments for the property describeTn Exhibit A, attached hereto and
incorporated herein by this reference, and Conejo to
may, make applications(s) for a total of residential development
allotments for the property described in Exhibit s, attached hereto
and incorporated herein by this reference. Defendants acknowledge
that there are currently a sufficient number of unallocated
residential develop ment allotments under ►emended Measure F,-aa
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 - - - - - . - - - •
_ . . _ .
follow and abide by the Imele tincx R-solutions. Plaintiffs
covenant and agree that theyysh,a 11 b,- . _• - � __ _• .
bye, the provisions of Amended Measure F and II 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 -la _vs o the i'etde•. - ! of
(i) applications for subdivision maps, planned development permits,
and residential development allotments, (ii) requests for plan
checks and review of improvement plans and specifications, and
(iii) applications for building permits and grading permits.
(4) - "
- - yam• _ y. - . - _ - : D 53 : ' _ •.. - • • - • _ ..
developed for residential . - • - • - -
within the boundaries of the Amended S•ecific Pla Plaintiffs
shall be exempt from (i), the provisions of any future City
ordinances that are related to - - .. - - • hillside
preservation or grading standards should such provisions be in
conflict with the Amended Specific Plan, (1.11)/111 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 fi-v+11111 the imposition of any traffic
3
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mitigation fee, except as expressly provided in Subsection 5 (b) (5)
or Subsection 5(b) (6) .
1995, and rye such allotment shall be rceairldcd, aet-ersider, voided
(5) (5 Without theexpress written concurrence of each Plaintiff
that owns real property that is sub-ect to the _amendment, Defen-
dants shall not amend approve (i) any amendment to the SEIR, the
Amended Specific Plan or the Carlsberg Ordinance without the
express written concurrence of Plaintiffs. that reduces the
approved number of residential units, reduces the approved acrep of
Sub-Regional/Commercial (SR/C) , Business Park (11!p) and/or Insti.tu-
• ,-1 — I land uses he Circulation Plan Amended
S•ec Pic Pla . ! or revises the D zut *M ; 01 : *D
(Amend?d Spec fic Plan Section IV) or ( ) any amendment to anx
provision of Amended tasure F or the Implementing Resolutions.
b. Plaintiffs Agree:
(1) Plaintiffs shall reimburse Defendants, in an
amount not to exceed Twenty I= Thousand Dollars ( 20,G$Q)-
_($i j o00l, 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
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 include, at City's sole discre-
tion, the following:
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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, matera.als.,•.-and:water ,..in..aceerdance 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
Sectior166477 et seq." ' 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 'tubdiiilsibti"" greeisl'ent-prior-to `the °approval of the`"first
final tract•map or the first"'finar 'parcel map within the Amended
Specific Plan area.
(3) Ass' a "Condition of the issuance of a building
permits for 'eachcommsrcial or industrial-usse 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 1.1 .12, 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 anril
Q, 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 04,443)443) per gross acre of Sub-
Regional/Commercial (SR/C) or Business Park (BP) land on which the
commercial or industrial use is located. Commencing on the first
day of the month following the month in which this Agreement
becomes effective, the amount of the Development Fee shall increase
6
•
by one-half of one percent (0.5%) per month on the first day of the
month ("monthly indexing") . Institutional uses, whether or not
exempt from secured property 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, pore or less than 73 gross
acres are subdivided into lots of not more than ten (10) groan
Berea for SR/C and/or BP usage, the Development Fee for commercial
and industrial uses shall be adiusted 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 containing
an SR/C or BP use lot of ten (10) acres or less 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 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. - - - - - = - - - 4 - - - e
- - _ - ..e
ro - .,load,,,Y
(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
7
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institutional uses which are exempt from secured property taxes
shall be exempt from the fee.
Payment of the AOC Fee shall represent payment in
full of the "fair share" amounts required by traffic mitigation
measures TC6, TC9, TC13 (coat of signal installation or modifica-
tion at Spring Road/Tierra Rejada Road only) , TC14 and TC16 (coat
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, plainti:fs
shall pay City a mitigation fee (the "Mitigation Fee") . he
Mitigation Fee shall be Two Thousand Dollars ($2,000) per residen-
tial unit. The Mitigation Fee shall be Eleven Thousand Two Hundred
Dollars -0111200) 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
witt a $817(600 73 gross acres - $11,200 per gross acre.
If, on the Adjustment Date, as hereinafter defined in this
paragraph, pore or less than 73 gross acres are subdivided into ,
lots of net mere than ter (10) grass scree for SR/C and/or BP ,
usage, the Mitigation Fee for commercial and industrial uses shall
be increased adiusiog 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 hereinafter defined in this
paragraph, or the Subsequent Map, as hereinafter defined in this
8
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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 containing
an SR/C or BP lot of ten (101 acres or less is recorded over all,
or a part of, the Initial Map 4785 (the "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 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. Tbe--pamta'
Defendants. in their sple and unfettered discretion. may elect
not to collect the Mitigation Fee. In the event of such election .
Plaintiffs shall be responsible fo all costs for traffic iti $-
tion measures TC12. TC13 (cut of .gnnl gnstallation or mod f ion at State loute ;3 northbound ramps Z err; Rejada Road onlyl .
TC14 e, • • ,al installat. e , . n.e o at State Route 23
southbound rams/T erre Re pda Road 9n)1v� and TC17; as d cribed. �n
tie SEIR. Pr or to the_issuance 4f he first buildinct permit
within the boundaries or the Amended Specific plan. (PlalntiffS.
shall make a written-re est of Defendants that they decide whether
or not o make the ele on. end Defendants shall notify ,plaintiffs
of the . . - =ion wit in thir • . - . fter recei•t of the
request.
The Mitigation Fee if collectmay be expended by
Defendants in their sole and unfettered_iscdretion; 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) , TC14 (cost of
signal installation or modification at State Route 23 southbound
ramps/Tierra Rejada Road only) and TC17, ata dc3aribedd in the CflIfl.
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.
9
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The "fair share" amounts shall be determined by *the following
percentages applied to the actual costs of said installations: TC7
( It) , 88% TC10 ( %) (3l and TC11 and TC13 (signal
mode if cat of n at Spring Road/Los Angeles -Avenue only) ( -) (50j) .
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) , TC5, 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 "Widening 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 Al
including, but not limited to, approximately eight (8) feet of
paving, striping, curb and gutter, sidewalk, drainage, parkway
landscaping and signage, no later than the issuance of the first
i oFcunancv permit within the boundaries of the property
described in Exhibit "B".
(7) Except as expressly provided in Subsection
5 (a) (4) , all development within the boundaries of the O loberg
Ame9de4 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 Los 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.
10
AUG 15 '94 17:24 1 213 2362700 PAGE.009
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6. Payment of Legal 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 or judgment therein and shall'
reimburse City for all costs and expenses, including but not
limited to attorneys' fees and costs, 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 Plaintiffs shall pay each invoice
in full within thirty (30) days after receiving the same. Notwith-
standing anything herein to the contrary, the provisions of this
Section shall not apply to any action brought by City or any one or
more of its officers, employees, servants or agents in his or her
official capacity or in their official capacities.
7. intervention 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, Defendants shall give
notice of the same to Plaintiffs. As permitted by law, Plaintiffs
may intervene in the action as a real party in interest, provided
that intervention shall not relieve Plaintiffs of their obligations
pursuant to Section 6. Defendants shall not oppose any such
intervention by Plaintiffs.
8. Covenant Not to Sue. Plaintiffs hereby covenant not to
bring an action against Defendants to 11). attack, review, set
aside, void or otherwise annul the Amended Specific Plan, the SEIR
or the Carlsberg Ordinance, in whole or in part, to 2x_tiil recover
any compensation or obtain ariv other relief 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
relief.
]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.
11
AUG 15 '94 17:25 1 213 2362700 PAGE.010
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10. Unknown Claims.
• a. Each party acknowledges and agrees that the release
it gives pursuant to Section $ 9 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:
[Plaintiffs' 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-
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
AUG 15 '94 17:26 1 213 2362700 PAGE.011
. 08/15/94 11:38 ZSi zip GJVGIVV
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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 court action, Plaintiffs' shall
be relieved of their obligation to 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 breach of any provision of this
Agreement that is held unconstitutional, invalid or otherwise
unenforceable by a court of Competent jurisdiction. If any such
provision is so held unconstitutional, invalid or otherwise
unenforceable, the remainder of this Agreement shall be valid and
shall be enforced to the extent permitted 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 of written notice thereof from
Defendants. In the event the breach 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 Action, notwithstanding any other
provision of this Agreement to the contrary, and (ii) pursue any
claims, causes of action, rights and remedies available to them at
law or in equity. Plaintiffs hereby agree that the convent not to
sue set forth in Section 9- 8 shall extend to any such amendment.
14. Advice of Attorney. 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 completely explained,— to it by that
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.
13
PUG 15 '94 17:27 1 213 2352700 PAGE.012
08/15/94 17:37 ttl zii 40/5410o J. -
044 t' oru!:mii'affigeiograba«eae
jG p .01'. y� �iv. .E .a.
15. aQnditions 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
Defendantsshall 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 oft 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 to 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 postage prepaid, and addressed to
the party for whom intended as follows:
TO DEFENDANTS: City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
Attn: City 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 and received upon receipt by personal service or
upon the second (2nd) day after deposit in the United States mail.
18. ,Toint 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 severally liable.
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-
14
AUG 15 '94 17:28 1 213 2362700 PAGE.013
08/15/94 17:38 $1 213 23621k u unuo 4.“. •
au;q.;; .•
..,. ., ..
S k1C H ti 37Z's39.dI$C 1►F PUBM17222... • .
:c a
z qpl �1+i t f+it::%7 d tic4.+ e.ru.
Ai�Y.:Y,..nh r rvt��:ll�,.Y��:•i:i• :�r•'..'j.'x.{fir. : i r.
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 S, 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 incurred 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 either party on the ground that
the party prepared the Agreement or caused it to be prepared.
23. Headings and Cantiona. The headings and captions of the
various sections and subsections of this Agreement are for
convenience and identification only and shall not be deemed to
limit or define the content of the respective sections and
subsections hereof.
24. Governing Law. This Agreement is entered into and shall
be construed and interpreted in accordance with the laws of the
State of California.
25. Counterparts. This Agreement may be executed in
counterparts.
26. Incornoratien into Amended $pacific Plan. This Agreement
shall be incorporated into, and made a part of, the Amended
Specific Plan.
Executed at , California, on
1994 .
15
AUG 15 '94 17:29 1 213 2362700 PAGE.014
08/1b/J4 17:3'9 1 G1J c.a.uc.I a v .._ _
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' ** =thi 1OCiioe'.Add$iani:a;}xu-ii
: . ;.Oiix414x.'xK;:g'4:a ;:L:t. .......... ....
PLAINTIFFS Conejo Freeway Properties, Ltd. , a
California limited partnership
By: Land Researchers, Inc. , a
California corporation, the general partner
By:
[Title]
Simi-Moorpark Freeway Properties,
Ltd. , a California limited partnership
By: Land Researchers, Inc. , a
California corporation, the general partner
By:
[T tle]
DEFENDANTS City of Moorpark, a municipal corporation
By:
Mayor
CITY COUNCIL OF THE CITY OF MOORPARK
By:
Mayor
ATTEST:
City Clerk
16
AUG 15 '94 17:30 1 213 236iM0 PAGE.015