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HomeMy WebLinkAboutAGENDA REPORT 2013 0320 CC SPC ITEM 05B ITEM 5.13. City Council meeting of - MOORPARK CITY COUNCILACTION. AGENDA REPORT 1M TO: Honorable City Council FROM: Steven Kueny, City Manager DATE: March 19, 2013 (CC Special Meeting of 3/20/13) SUBJECT: Consider Approval of Settlement, Waiver and Release Agreement between the City of Moorpark, AC Construction, Inc., and Moorpark RV, LLC BACKGROUND and DISCUSSION The attached proposed Settlement Agreement between the City and AC Construction, Inc., and Moorpark RV, LLC (Settlement Agreement) will resolve the dispute between the parties pertaining to the continued operation of a recreational vehicle (RV) storage yard, the prior and current operation of the RV storage yard without the appropriate land use approval (Conditional Use Permit), and the assertion that the owners have the right to permanently operate a RV storage yard on the property. The proposed Settlement Agreement also references the relevant history of the RV storage yard on the property. As proposed, the Settlement Agreement recognizes the current condition of the RV storage yard and buildings, specific required changes and limitations, and establishes a date for termination of the Conditional Use Permit (CUP) for the RV storage yard in the event the CUP is approved by separate action of the City Council. It also sets forth a $1,000 per day penalty if any RV storage occurs after the "Termination Date," which is March 31, 2023, and provides for a pre-approved Stipulation for Entry of Abatement Warrant and Order to allow the City to remove any RV storage remaining after the Termination Date. STAFF RECOMMENDATION Direct staff as deemed appropriate. SK:db Attachment-. Settlement Agreement 11 SETTLEMENT, WAIVER AND RELEASE AGREEMENT Between the City of Moorpark, AC Construction, Inc and Moorpark RV LLC. THIS SETTLEMENT, WAIVER AND RELEASE AGREEMENT (this "Agreement") is made and entered into as of the day of 2013, by and between the CITY OF MOORPARK, CALIFORNIA, a general law city ("City"), on the one hand, and AC CONSTRUCTION, INC.("AC"), a California Corporation, and MOORPARK RV, LLC, "Moorpark RV"), on the other hand, with reference to the following facts and circumstances. City, AC and Moorpark RV may hereinafter be referred to individually as "Party" and collectively as "Parties." RECITALS WHEREAS, AC is currently the fee simple owner of Assessor's Parcel No. 506-0-020-640 consisting of approximately 296,905 square feet (6.81 acres) located on the west side of Spring Road adjacent to the Arroyo Simi and commonly known as 4875 Spring Road, Moorpark, California 93021 (hereinafter sometimes referred to as the "Property"); and WHEREAS, Moorpark RV is the current owner of the recreational vehicle storage business that is operated on the Property. WHEREAS, AC may convey all right, title and interest in the Property to Stephen R. Anderson Trust of 1987 or other related entity ("Anderson.") WHEREAS, City was officially incorporated as a City on July 1, 1983; and WHEREAS, prior to City's incorporation, the Property was used as a contractor's storage yard with a contractor's office building; and WHEREAS, on December 19, 1988, the City Council of the City adopted Ordinance No. 115 approving a zoning map for the City. The Property was zoned Commercial Planned Development (CPD); and WHEREAS, on or about October 7, 1994, the City Community Development Director issued Zoning Clearance No. 94-231 to allow AC and Moorpark RV to replace the existing legal non-conforming use of a portion of the Property from a contractor's storage yard to recreational vehicle storage, and on or about November 28, 1994, the City Community Development Director issued Zoning Clearance No. 94-267 superseding Zoning Clearance No. 94-231; and WHEREAS, on October 16, 1996, the City Council adopted Resolution No. 96-1237 which authorized continuation of the recreational vehicle storage on the Property until 30 days after City Council action on a Zoning Ordinance Amendment pertaining to use of the Property not to exceed one year; and 1 12853-0001\1527637v9.doc 12 WHEREAS, upon Moorpark RV's application for an amendment to City's Zoning Ordinance and after a recommendation for approval by the City Planning Commission, the City Council on March 19, 1997, adopted Ordinance No. 225 to amend Subsection (c) (2) of Section 17.52.060 of the Moorpark Municipal Code to allow a change of use of an existing legal non-conforming use to a similar use with approval of a City Council approved Conditional Use Permit (CUP); and WHEREAS, on or about May 27, 1998, Moorpark RV submitted a pre- application for a CUP for use of the Property for a recreational vehicle storage yard; and WHEREAS, on or about July 21, 1998, the City Community Development Director issued a comment letter on the pre-application; and WHEREAS, at some point around 1999, Moorpark RV added a dump station that was constructed without required City approvals or building permits and was connected to the Waterworks District No. 1 sewer system without required permits; and WHEREAS, on or about November 30, 2000, LT Development, LLC, filed an application for a General Plan Amendment (GPA) Pre-Screening to change the planned land use of an adjacent parcel (Coast Auto Salvage) from General Commercial to Very High Density Residential; and WHEREAS, on or about June 6, 2001, the City Council authorized the processing of a GPA application for LT Development, provided that it includes the Moorpark RV property. In the staff report, Director of Community Development Wayne Loftus provided a memo as an attachment outlining the permit status of the recreational vehicle storage yard, which indicated that the site does not possess a CUP as required for its use, and that the applicant should seek a CUP if the requested (General Plan Amendment) designation does not occur; and WHEREAS, although LT Development did not proceed with an application for a General Plan Amendment, on or about July 29, 2004, Centex Homes filed an application for a General Plan Amendment Pre-Screening to change the General Plan land use designation of the Moorpark RV site from General Commercial to Very High Density Residential to build 48 homes. This application was subsequently amended to include adjacent commercial property used for a nail salon and a total of 66 homes were proposed; and WHEREAS, on or about September 21, 2005, the City Council authorized the processing of a General Plan Amendment for the Centex Homes project as revised; and WHEREAS, on or about September 28, 2005, Centex Homes filed applications for a General Plan Amendment, Zone Change, Tentative Map, and Residential Planned Development Permit were submitted for a 66-unit housing 2 12853-0001\1527637v9.doc 13 project on the Moorpark RV and adjacent nail salon sites. The applications were deemed incomplete, and the application was closed by City staff on March 9, 2006, for inaction on the incompleteness items; and WHEREAS, on or about December 2, 2011, Stephen Anderson, one of the owners of Moorpark RV made an inquiry to City staff on the permit status of the Moorpark RV property; and WHEREAS, on or about January 24, 2012, the City Community Development Director, upon the verbal request of Stephen R. Anderson, issued a letter clarifying numerous options pertaining to the Property and concluded that a City Council-approved CUP is still required for the storage of recreation vehicles on the Property; and WHEREAS, a dispute has arisen between the Parties in that: (i) City contends that absent the issuance of the CUP, AC and Moorpark RV have no lawful ability to maintain and use the Property as a recreational vehicle storage yard and that such use has been fully amortized and should be compelled to cease immediately; and (ii) AC and Moorpark RV assert that they have the right to continue use of the Property for a recreational vehicle storage yard permanently (collectively the "Dispute"); and WHEREAS, in an attempt to compromise the Dispute, on April 17, 2012, Moorpark RV submitted an application with City for CUP No. 2012-03 to allow the use of the Property for recreational vehicle storage; and WHEREAS, City staff has evaluated proposed CUP No. 2012-03 and this Agreement pursuant to the requirements of the California Environmental Quality Act ("CEQA") and determined that the approval of CUP No. 2012-03 and this Agreement as categorically exempt from CEQA as a Class I (Existing Facilities) exempt project pursuant to State CEQA Guidelines Section 15301 on the basis that the project involves an existing facility that is not proposed to be expanded beyond what is currently existing on the property; and WHEREAS, the Property is currently being used by AC and Moorpark RV as a recreational vehicle storage yard with an associated office use; and WHEREAS, the Property currently has a General Plan land use designation of C-2 (General Commercial) and Floodway and currently is zoned CPD (Commercial Planned Development); and WHEREAS, after several continued public hearings and extensions of time agreed to by City and Moorpark RV, the City Council is scheduled to conclude the public hearing on CUP No. 2012-03 on March 20, 2013 and to take action on that application on that date; and 3 12853-0001\1527637v9.doc 14 WHEREAS, the City recognizes that AC, Moorpark RV and their successors in interest have the ability to apply for other land use approvals for the Property in the future in accordance with the Moorpark Municipal Code. NOW, THEREFORE, in consideration of the foregoing and of the mutual promises and covenants hereinafter set forth, it is hereby agreed by and among the Parties hereto that all claims, contentions, allegations and causes of action which are contained or alleged, or which could have been raised, in connection with the Dispute, are to be compromised and settled without any admission of liability or concession by any Party that the contentions of the other Party are correct, on the following terms: 1. CUP NO. 2012-03 AND RELATED PROVISIONS A. City agrees that it will process, set for public hearing, and present to the City Council for its consideration, CUP No. 2012-03. In the event the City Council, in the exercise of its independent judgment, following a noticed public hearing and the taking of all applicable evidence, approves CUP No. 2012-03, then upon the effective date of the City Council's approval, and upon AC's and Moorpark RV's written approval of all Conditions of CUP No. 2012-03, AC and Moorpark RV agree to comply with the terms, conditions and limitations of City CUP No. 2012-03. Upon its approval by the City Council, a true and correct copy of the approved CUP No. 2012-03 shall be attached to this Agreement as Exhibit A and made a part hereof, as though fully set forth herein. B. Nothing contained herein shall require the City Council to approve CUP No. 2012-03 and the Parties acknowledge that the City Council expressly reserves all rights, obligations and discretion to approve or disapprove the CUP as required by law. C. Without limiting the contents of CUP 2012-03, and by way of example and to supplement its terms, upon City's approval of CUP No. 2012-03, and upon AC's and Moorpark RV's written approval of all Conditions of CUP No. 2012-03, AC and Moorpark RV hereby expressly agree that: (1) CUP No. 2012-03 shall expire no later than March 31, 2023 as provided for in the Conditions of Approval adopted as part of that CUP (the "Termination Date"). No vested right to any use or uses provided by CUP 2012-03 shall apply or exist beyond the Termination Date of that CUP and AC and Moorpark RV hereby expressly waive, release and forever forfeit any such vested right, or any claim of entitlement of whatever kind, to continue such use or uses beyond the Termination Date of the CUP. AC and Moorpark RV, and any successor in interest to the Property or to Moorpark RV shall not be entitled to any extension to the time limit imposed by CUP No. 2012-03, and shall not seek any such time extension or a new Conditional Use Permit or other land use approval to continue recreational vehicle storage uses on the Property, regardless of 4 12853-0001\1527637v9.doc 15 the land use, zoning, and Moorpark Municipal Code provisions that may be applicable to the Property at any time. (2) The parking, standing or storage of any recreational vehicles, and their equipment or materials of any kind, on the Property, whether in conformance with CUP No. 2012-03 or not, shall cease and all such items shall be removed from the Property no later than the Termination Date. (3) All barbed and razor wire shall be removed from the perimeter fences and walls of the Property no later than the Termination Date. (4) By April 30, 2013, the existing sewage dump facility shall be removed and the sewer capped as required by Waterworks District No. 1. Any replacement sewage dump facility on the Property shall be constructed in compliance with all applicable City, county, state and federal standards and shall be removed by April 20, 2023 in compliance with all applicable City, county, state and federal standards. (5) By April 20, 2023, the existing metal and stucco storage building on the Property shall be demolished and all debris removed in compliance with all applicable City, county, state and federal standards. (6) On and after the Termination Date, any and all uses of the Property such shall conform to the then applicable zoning requirements of the Property. (7) Prior to entering escrow to sell any or all portions of the Property, the business, or both the Property and business, AC and Moorpark RV, or its successors in interest, shall provide any proposed buyer thereto a copy of CUP No. 2012-03, this Agreement and any amendments thereto. AC and Moorpark RV will notify City in writing no less than ten (10) days prior to the close of escrow of the proposed sale or proposed lease of, any or all portions of the Property, business, or both the Property and the business. (8) Sections 17.52.020 (Nonconforming Structures), 17.52.040 (Nonconforming uses due to changes in parking requirements), Subsections (A) and (B) of Section 17.52.060 (Other nonconforming uses (no longer permitted)), and 17.52.065 (garage conversions — grandfathered), as currently stated or as hereafter may be amended, shall not apply to the uses or structures on the Property, and reliance upon or adherence to, such provisions is expressly waived, released and forfeited by AC and Moorpark RV. (9) After the Termination Date, AC and Moorpark RV, may use the existing office building on the Property for office uses not related to the 5 12853-0001\1527637v9.doc 16 former contractors' equipment storage yard or the former recreational vehicle storage use of the Property and only in compliance with then applicable zoning permitting requirements and standards, including but not limited to, standards related to use, parking, landscaping, lighting and driveway access. (10) Any proposed residential use of the Property shall require a Development Agreement consistent with Chapter 15.40 of the Moorpark Municipal Code, as currently stated or as hereafter may be amended by the City. (11) Prior to or after the Termination Date, AC and Moorpark RV may not use the Property for a contractors' equipment storage yard. In addition, AC and Moorpark RV may not use the property for any other use that is contrary to the terms of CUP No. 2102-03 or not in compliance with all required permits and approvals as required by the Moorpark Municipal Code. (12) Prior to the Termination Date, the Property or any portion thereof, including any structures on the Property, may not be leased for any use or business, other than the recreational vehicle storage business and office uses that do not generate on-site customer traffic to the satisfaction of the Community Development Director as authorized by CUP No. 2012-03. (13) City development impact fees shall not apply to CUP No. 2012-03 for the current legal non-conforming recreation vehicle use and related office use of the Property but shall apply to any other use of the Property in the future (whether before or after the Termination Date) that requires a discretionary permit or entitlement from the City, including but not limited to, a development agreement, planned development permit, or subdivision map approval. At such time as a discretionary permit or entitlement is approved by City, AC and Moorpark RV, for themselves and their successors in interest, agree 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. Those fees include, but are not limited to, Los Angeles Avenue Area of Contribution Fee, Development Fee, Citywide Traffic Fee, Intersection Improvement Fees, Community Services Fee, Park Fee, Art in Public Places Fee, Air Quality Fee, Library Facilities Fees, Police Facilities Fees, Fire Facilities Fees, Landscape Maintenance Fees, entitlement processing fees, and plan check and permit fees for buildings and public improvements, and such future fees imposed as determined by City in its sole discretion so long as said fee is generally imposed on similarly situated properties. (14) Any future changes to the signage, lighting, parking, landscaping, fencing, or other development changes not addressed in this 6 12853-0001\1527637v9.doc 17 Agreement or in CUP No. 2012-03 shall conform to the then applicable City ordinances and zoning for the Property. (15) Concurrently with the execution of this Agreement, AC and Moorpark RV shall execute and present to the City for the City to record against the Property, a covenant containing the provisions of this Paragraph C of this Section, in the form and content approved by the City, and which shall be attached at Exhibit C to this Agreement. This covenant shall run with the land, be binding on all successors in interest to the Property, and shall provide notice of the provisions of this Agreement. (16) AC and Moorpark RV agree to pay City Two Thousand Three Hundred and Fifty Dollars ($2,350.00) by April 30, 2013 for approximately eight (8) businesses that were leasing space from AC and/or Moorpark RV at 4875 Spring Road for a cumulative time of approximately 47 years and had not paid City Business Registration Permit fees. D. Upon approval by the City Council of CUP No. 2012-03, City accepts the current conditions of the Property with respect to front yard setback, driveway, pavement material, lighting, parking, fencing (except for the razor/barbed wire along the Spring Road frontage,) and landscaping as being permitted pursuant to, or not in violation of, CUP No. 2012-03. E. Pursuant to the terms of this Agreement and subject to the conditions of CUP No. 2012-03, City recognizes the legal non-conforming recreational vehicle storage and the supporting and related office use on the Property up to March 31, 2023. F. City shall not apply any City development fees to the uses and structures allowed pursuant to CUP No. 2012-03. 2. EFFECTIVE DATE. This Agreement is contingent upon the approval by the City Council of CUP No. 2012-03, and the execution of the Affidavit of Acceptance of CUP No. 2012-03 by Moorpark RV and AC, and shall take effect upon the latter of the following events: (a) the execution of this Agreement by the last of the Parties to this Agreement; and (b) the effective date of CUP No. 2012-03. In the event this Agreement is executed but then the City Council does not approve CUP No. 2012-03, and/or Moorpark RV and AC do not execute an Affidavit of Acceptance of the Conditions of Approval of CUP No. 2012-03, this Agreement shall be null and void. 3. RELEASE BY AC AND MOORPARK RV. This Agreement shall serve as a full release and discharge by AC and Moorpark RV, on behalf of themselves, their Trustors, Trustees, beneficiaries, heirs, owners, officers, directors, employees, agents, contractors, attorneys, and successors in interest, in consideration of the mutual covenants and promises contained herein, of the 7 12853-0001\1 527637v9.doc 18 City, its City Council and each present and former member thereof, and its officials, employees, consultants, contractors, attorneys, agents, assigns, (collectively the "AC and Moorpark RV Releasees"), from all claims or cross- claims and from all causes of action, attorneys' fees, injunctive or declaratory relief, or for relief by way of writ of mandate, or for demands, damages, refunds, debts, reimbursements, liabilities, reckonings, accounts, obligations, costs, expenses, liens, actions, causes, and causes of action of whatever kind, known or unknown, at law or in equity, including, but not limited to inverse condemnation, that AC and/or Moorpark RV have or could have asserted (a) in connection with or arising out of the Dispute; and (b) any challenge to the terms or conditions of CUP No. 2012-03, the environmental review and documentation in connection with CUP No. 2012-03 or any related approval or denial. AC and Moorpark RV, hereby covenant not to bring any action against City to (a) attack, review, set aside, void, or otherwise annul the City processing of or action on the CUP or this Agreement, in whole or in part, or (b) recover any compensation or obtain any relief for any injury, damage, loss, or deprivation of any right alleged to have been sustained as a result of the actions set forth in or related to the Recitals, City's action on the CUP or of this Agreement. 4. RELEASE BY CITY. This Agreement shall serve as a full release and discharge by City, on behalf of itself, its City Council, officers, employees and agents, in consideration of the mutual covenants and promises contained herein, of AC and Moorpark RV, its Trustors, Trustees, beneficiaries, heirs, owners, officers, directors, employees, agents, contractors, attorneys, and successors in interest, (collectively the "City Releasees"), from all claims or cross-claims and from all causes of action, attorneys' fees, injunctive or declaratory relief, or for relief by way of writ of mandate, or for demands, damages, refunds, debts, reimbursements, liabilities, reckonings, accounts, obligations, costs, expenses, liens, actions, causes, and causes of action of whatever kind, known or unknown, at law or in equity, that City has or could have asserted in connection with or arising out of the Dispute. 5. NO ADMISSION OF LIABILITY. Each of the Parties acknowledges that this Agreement relates to the settlement of disputed claims. Therefore, it is agreed that this Agreement is not to be construed as an admission of liability by any of the Parties to this Agreement, which liability is specifically denied and each Party acknowledges that the other Party has denied any and all wrongdoing and liability relating to the Dispute. 6. AFTER DISCOVERED FACTS OR LAW. Each Party acknowledges that it is aware that it may hereafter discover claims or facts in addition to or different from those it now knows or believes to be true with respect to the Dispute resolved hereby. Nevertheless, this Agreement shall be, and remain, in effect as a full and complete release as to the Dispute, notwithstanding the discovery or existence of any such additional claims or facts. 8 12853-0001\1527637v9.doc 19 7. RESERVED GOVERNMENTAL AUTHORITY. Except as otherwise expressly provided in this Agreement, nothing in this Agreement or in CUP No. 2012-03 shall exempt or immunize AC or Moorpark RV from compliance with any applicable City, county, state or federal law which a county, state or federal agency, court decision or other regulatory body requires the City to enforce against the Property to protect the health, safety or welfare of the public. Similarly, nothing contained in this Agreement or CUP No. 2012-03 shall preclude the City from seeking and obtaining any civil or criminal court order for violation of City, county, state or federal laws, if such action is required to protect the health, safety or welfare of the public or is required to comply with applicable county, state or federal law, court order or the order of a county, state or federal agency. 8. WAIVER OF CIVIL CODE §1542. The Parties hereby expressly waive the provisions of Section 1542 of the California Civil Code, which provides: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor." Notwithstanding the foregoing, nothing in this Agreement, including but not limited to the releases or the waiver of Civil Code §1542 herein, shall apply to waive or limit the City's ability to enforce any term or condition of this Agreement or of CUP No. 2012-03 or to seek remedies for breach of this Agreement or for violation of CUP No. 2012-03. 9. DEFENSE AND INDEMNITY. AC and Moorpark RV agree to defend, indemnify, and hold harmless City, at AC's and Moorpark RV's collective and sole expense, with counsel reasonably acceptable to City, any claim, lawsuit, or cause of action brought to challenge the City Council's action on CUP No. 2012-03, related actions under CEQA, any subsequent permits to implement CUP No. 2012-03 and this Agreement. AC and Moorpark RV further agree individually and collectively to reimburse City for any costs and/or attorneys' fees which City may incur as a result of any such action. City may, at its sole discretion, participate in the defense of any such action at City's cost, but such participation shall not relieve AC or Moorpark RV of their obligations under this Section. 10. REMEDIES FOR BREACH. A. Breach of CUP No. 2012-03. In the event AC or Moorpark RV or any one of them, breach the terms or conditions of CUP No. 2012-03, including but not limited to, the requirement to cease use of the Property for recreational vehicle storage and related office uses by the Termination Date, City may file with the court the "Stipulation to Entry of Abatement Warrant and Order" ("Stipulation,") a copy of which is attached hereto as Exhibit B, and which shall 9 12853-0001\1527637v9.doc 20 be signed by AC and Moorpark RV concurrent with the execution of this Agreement, by which AC and Moorpark RV will be required immediately to cease all uses and conditions of the Property that violate Paragraph C of Section 1 of this Agreement, the terms of the CUP No. 2012-03, or both such documents. Successors in interest in the Property or in the recreational vehicle storage business on the Property that are successors to AC and Moorpark RV shall execute the same form of Stipulation as provided in Exhibit B concurrently with taking ownership of the business, the Property, or both. Pursuant to that abatement warrant and order the City will be permitted to enter the Property to take action to preclude and/or abate such violations. In addition, to enable the City to effectuate the termination of the recreational vehicle storage uses of the Property, AC and Moorpark RV, and successors in the business or Property, shall cause to include in all leases of recreational vehicle storage spaces that the leases shall terminate no later than March 31, 2023 and the owners of stored vehicles shall be required to remove their vehicles from the Property on or before that date. City shall provide AC and Moorpark RV a 30-day advance notice and right to cure the violation prior to filing the Stipulation in court, but shall not be required to provide a 30-day notice, or any notice, or right to cure prior to filing the Stipulation in court for failure to cease the recreational vehicle storage and related office use by the Termination Date. In addition, without advance notice and whether or not the Stipulation is filed in court, AC and Moorpark RV or its/their successor(s) in interest shall be individually and collectively liable for and shall pay City a total of One Thousand Dollars ($1,000.00) per day for each day any recreational vehicle storage occurs on or after the Termination Date. Nothing in this Agreement shall be deemed to preclude City from prosecuting a civil or criminal action against AC, Moorpark RV, or any successor in interest, for any violation of CUP No. 2012-03, this Agreement, or any City ordinance or state statute relating to the Property. B. City fees, costs and expenses for enforcement. AC and Moorpark RV or its/their successor(s) in interest further agree to pay the following costs, expenses and attorneys' fees paid or incurred by City: (i) costs and expenses of collection or enforcement of, and attorneys' fees paid or incurred in connection with the collection or enforcement of the removal of stored items or the daily fee specified in Paragraph A of this Section when items are stored beyond the Termination Date, whether or not suit is filed; and (ii) costs of suit and such sum as the Court may adjudge as attorneys' fees upon a finding of "Prevailing Party" in an action to enforce payment or any part of that action. C. Informal Dispute Resolution: In the event of any dispute between the Parties as to the interpretation, application or enforcement of this Agreement, other than for a breach within the scope of Paragraph A of this Section 10, the matter may be brought to the attention of the City Manager of City and the principal officer or owner of AC and Moorpark RV in an attempt to resolve the matter informally. Such informal resolution may include participation of City staff, consultants, or other persons, as may be reasonably necessary to resolve the issue. If City Manager and the principal officer or owners of AC and Moorpark RV 10 12853-0001\1527637v9.doc 21 are unable to resolve the matter informally as described above, the Parties agree to jointly submit the matter within thirty (30) days to an independent third-party such as a JAMS neutral, by mutual agreement, for mediation or arbitration, as may be mutually agreed upon by the Parties. The Parties agree that, except as otherwise provided in Paragraph A of this Section 9, initiation of litigation regarding the interpretation or application of this Agreement shall be a means of last resort, to be employed only following good faith attempts to resolve the matter as set forth herein. 11. MISCELLANEOUS. A. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, assigns, legal representatives, parent, subsidiary, affiliated and related entities, officers, directors, principals, agents, servants, employees, representatives, and all persons, firms, associations and/or corporations connected with them, including, without limitation, their insurers, sureties and/or attorneys having any interest in the Property. B. Burdens and Benefits Run with the Land. This Agreement is applicable to any owner, lessee or any other person or entity having any interest in the Property until superseded or terminated by Agreement of the City and all those persons or entities having all right, title and interest in the Property. At such time as AC and Moorpark RV have transferred all of its right, title and interest in the Property, and do not have or retain any right title or interest in the successor entity that owns the Property, AC and Moorpark RV shall be relieved of all burdens and benefits hereunder, and such transfer shall be deemed to be a novation. C. Attorneys' Fees. Except as provided Paragraph B of Section 10 of this Agreement, In the event that any action, suit or other proceeding is instituted to remedy, prevent or obtain relief from a breach of this Agreement, or arising out of a breach of this Agreement, or contesting the validity or enforceability of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs incurred in such action, suit or other proceeding, including any and all appeals or petitions therefrom. D. Integrated Agreement. This Agreement is an integrated agreement and, together with CUP No. 2012-03, constitutes the entire understanding of the parties hereto with respect to the subject matter hereof and supersedes any and all prior agreements, communications, representations, or warranties, whether oral or written, by any Party or any agent, officer, partner, employee, or representative of any Party. Nothing contained herein shall nullify CUP 2012-03 except if a condition of CUP 2012-03 is in conflict with the provisions of this Agreement as provided in Paragraph O of this Section 11. 11 12853-0001\1 527637v9.doc 22 E. Amendments. This Agreement may not be modified, altered, amended, or rescinded except by an instrument in writing, which is signed by all parties affected by any such modification, alteration, amendment or rescission. F. Severability. Should any part, term or provision of this Agreement be declared or determined by any court of competent jurisdiction to be illegal or invalid, the validity of the remaining parts, terms or provisions shall not be affected thereby and said illegal or invalid part, term or provision shall be deemed not to be a part of this Agreement. G. Construction. This Agreement is the product of negotiation, drafting and preparation by and among the Parties and their respective attorneys. The Parties expressly acknowledge and agree that this Agreement shall not be deemed prepared or drafted by one Party or another and its attorneys, and will be construed accordingly. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement. H. Notices. All notices that are required to be delivered under this Agreement shall be in writing and personally delivered, or sent by overnight delivery, registered or certified mail, postage prepaid, addressed as follows: To City: City of Moorpark 799 Moorpark Avenue Moorpark, CA 93021 Attention: Steven Kueny, City Manager With a copy to: Richards, Watson, & Gershon 355 South Grand Avenue, 40th Floor Los Angeles, CA 90071-3101 Attention: Kevin Ennis To AC: Ms. Banny Anderson, President 4875 Spring Road Moorpark, CA 93021 Attention: Moorpark RV: Ms. Banny Anderson, Manager 4875 Spring Road Moorpark, CA 93021 Attention: With a copy to: Orrock, Higson & Kurta 788 N. Victoria Ave. Ventura, CA 93003 Attention: R. Dennis Orrock 12 12853-0001\1527637v9.doc 23 Such addresses may be changed from time to time by the addressee by serving notice as heretofore provided. Service of such notice or demand shall be deemed complete on the date of actual delivery as shown by the addressee's registry or certification receipt or at the expiration of the third day after the date of mailing (whether or not actually received by the addressee), whichever is earlier in time. I. 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. J. Further Assurances. Each Party shall from and after the date hereof execute, acknowledge and deliver such further instruments and perform such additional acts as any other Party may reasonably request to effectuate this Agreement. K. Time of Essence. The Parties hereby acknowledge and agree that time is strictly of the essence with respect to each and every term, condition, obligation and provision hereof and that failure to timely perform any of the terms, conditions, obligations or provisions hereof by either Party shall constitute a material breach of and a non-curable (but waivable) default under this Agreement by the Party so failing to perform. L. Third Party Beneficiaries. Except as provided in Paragraphs (A) and (B) of this Section 11, no term or provision of this Agreement or the exhibits hereto is intended to or shall be for the benefit of any person or entity not a party hereto, and no such other person or entity shall have any right or cause of action hereunder. M. Assistance of Counsel. AC, Moorpark RV and City each acknowledge that: (i) they have been represented by independent counsel in connection with this Agreement; (ii) they have executed this Agreement with the advice of such counsel; and (iii) this Agreement is the result of negotiations between the Parties and the advice and assistance of their respective counsel. . N. 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. O. 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 13 12853-0001\1527637v9.doc 24 be found to be in direct conflict with any condition of CUP No. 2012-03, the provisions of this Agreement shall prevail. P. Warranty of Authorized Signatories. Each of the signatories hereby warrants and represents that he or she is competent and authorized to execute this Agreement on behalf of the Party for whom he or she purports to sign. Q. Execution of Counterparts. This Agreement may be executed in counterparts which, when taken together, shall constitute one original agreement. Facsimile or electronic counterparts shall be effective as if the original signed counterpart were delivered. IN WITNESS WHEREOF, the undersigned each has executed this Agreement as of the dates set forth below. CITY OF MOORPARK, CALIFORNIA By Date: Janice S. Parvin, Mayor Attest: By Maureen Benson City Clerk AC CONSTRUCTION, INC. By: Date: Print Name: Banny Anderson Title: President MOORPARK RV, LLC By: Date: Print Name: Banny Anderson Title: Manager 14 12853-0001\1527637v9.doc 25 EXHIBIT A (COPY OF APPROVED CUP) A-1 12853-0001\1527637v9.doc 26 EXHIBIT B 1 KEVIN G. ENNIS CITY ATTORNEY 2 CITY OF MOORPARK 3 RICHARDS, WATSON & GERSHON A Professional Corporation 4 KEVIN G. ENNIS (Bar No. 123065) kennis @rwglaw.com 5 355 South Grand Avenue, 40th Floor Los Angeles, California 90071-3101 6 Telephone: 213.626.8484 Facsimile: 213.626.0078 7 Attorneys for Applicant 8 CITY OF MOORPARK 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF VENTURA z o 11 o � v 12 IN THE MATTER OF THE Case No. w APPLICATION OF THE CITY OF 13 MOORPARK TO ABATE A PUBLIC STIPULATION TO ENTRY OF z NUISANCE ON PROPERTY LOCATED ABATEMENT WARRANT AND ORDER 0 14 AT 4875 SPRING ROAD, MOORPARK [Exempt from filing fees pursuant to Govt. Code § 61031 a a (APN 506-0-020-640). 15 U.) a ° N 16 Q w S = � Q 17 18 r 19 20 21 22 23 24 25 26 27 28 27 STIPULATION TO ENTRY OF ABATEMENT WARRANT AND ORDER 1 2853-0015\1540546v2.doc I WHEREAS, AC Construction, Inc. ("AC"), a California Corporation, is the fee 2 simple owner of Assessor's Parcel No. 506-0-020-640, consisting of approximately 3 296,905 square feet (6.81 acres) of property located on the west side of Spring Road 4 adjacent to the Arroyo Simi and commonly known as 4875 Spring Road, Moorpark, 5 California 93021 (the "Property"); and 6 WHEREAS, Moorpark RV, LLC ("Moorpark RV") is the owner of the recreational 7 vehicle storage business that is operated on the Property; and 8 WHEREAS, AC may convey all right, title and interest in the Property to Stephen R. 9 Anderson Trust of 1987 or other related entity; and 10 WHEREAS, at the request of AC and Moorpark RV, the City of Moorpark (the z o 11 "City") has considered an application for Conditional Use Permit ("CUP") No. 2012-03 o � v a 12 related to the Property; and C — Z 13 WHEREAS, AC and Moorpark RV have agreed that, if approved, CUP No. 2012-03 z 0 14 would expire not later than March 31, 2023 and that no vested right to any use or uses ¢ a 3 3 15 would apply or exist beyond March 31, 2023; and Un CQ 16 WHEREAS, AC and Moorpark RV agreed to cease certain operations and remove o Q 17 certain materials, equipment, and recreational vehicles by March 31, 2023, as specified in � a �264-! 18 the "Settlement, Waiver and Release Agreement Between the City of Moorpark, AC r 19 Construction, Inc. and Moorpark RV, LLC" (the "Settlement Agreement"); and 20 WHEREAS, as part of the Settlement Agreement, AC and Moorpark RV agreed that 21 in the event that one or both of them breached the terms or conditions of CUP No. 2012-03, 22 including but not limited to the requirement to cease use of the Property for recreational 23 vehicle storage and related office uses by March 31, 2023, as specified in the Settlement 24 Agreement, the City may proceed immediately to enforce the terms of CUP No. 2012-03. 25 the Settlement Agreement, or both; now, therefore: 26 IT IS HEREBY STIPULATED between AC and Moorpark RV on the one hand, and 27 the City on the other hand, through their undersigned counsel, as follows: 28 1. In the event that AC or Moorpark, or either of them, breaches the terms and 28 13-2- STIPULATION TO ENTRY OF ABATEMENT WARRANT AND ORDER 12853-0015\1540546v2.doc I conditions of CUP No. 2012-03, including but not limited to the requirement 2 to cease use of the Property for recreational vehicle storage and related office 3 uses by March 31, 2023, and as determined by the City, the City may file with 4 the Court this Stipulation to Entry of Abatement Warrant and Order. 5 2. The City will be permitted to enter onto the Property to take action to 6 preclude and/or abate such violations, including but not limited to violations 7 of CUP No. 2012-03; Paragraph C, Section 1 of the Settlement Agreement; or 8 both. 9 3. The City may use reasonable force as necessary to enter onto the Property to 10 abate the violations. z 11 4. AC and Moorpark expressly waive their right to contest the jurisdiction of o o � _ 12 this Court to issue, or the good cause for the issuance of, a Nuisance � a < 13 Abatement Warrant to abate the violations. — Z z ° O w 14 Q a 15 Dated: , 2013 RICHARDS, WATSON & GERSHON L a A Professional Corporation 1:1 �z 16 KEVIN G. ENNIS ¢ w _ u 17 o 22 ti !2l 18 By: r, KEVIN G. ENNIS 19 Attorneys for Applicant CITY OF MOORPARK 20 21 Dated: , 2013 BANNY ANDERSON 22 23 BY' BANNY ANDERSON, President 24 AC CONSTRUCTION, INC. 25 26 27 28 29 A -3- STIPULATION TO ENTRY OF ABATEMENT WARRANT AND ORDER 12853-0015\1540546v2.doc I Dated: , 2013 BANNY ANDERSON 2 3 By' BANNY ANDERSON, Manager 4 MOORPARK RV, LLC 5 6 7 8 9 10 z o 11 o � ur) ° 12 W � — 13 Z z ° 14 i�: ` 15 cn ° 16 ¢ w V o 17 � a 18 r 19 20 21 22 23 24 25 26 27 28 30 $ -4- STIPULATION TO ENTRY OF ABATEMENT WARRANT AND ORDER 12853-0015\1540546v2.doc EXHIBIT C (COVENANT TO BE RECORDED CONTAINING PROVISIONS OF PARAGRAPH C OF SECTION 1 OF THIS AGREEMENT) C-1 12853-0001\1527637v9.doc 31 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: CITY OF MOORPARK 799 Moorpark Avenue Moorpark, California 93021 Attn: City Clerk With a copy to: Ms. Banny Anderson 4875 Spring Road Moorpark, CA 93021 NO FEE REQUIRED PURSUANT TO: Government Code Sections 6103 and 27383 SPACE ABOVE THIS LINE FOR RECORDER'S USE COVENANTS REGARDING CITY OF MOORPARK CONDITIONAL USE PERMIT 2012-03 THESE COVENANTS REGARDING CITY OF MOORPARK CONDITIONAL USE PERMIT 2012-03 (hereinafter referred to as the "Covenant Agreement") are dated as of , 2013 and are entered into by the CITY OF MOORPARK, a municipal corporation ("City"), and AC CONSTRUCTION, INC. ("AC"), a California corporation, and MOORPARK RV, LLC, a California limited liability company ("Moorpark RV"). City, AC and Moorpark RV are sometimes hereinafter referred to collectively as the "Parties." RECITALS A. The City, AC and Moorpark RV have entered into a Settlement, Waiver and Release Agreement dated March , 2013 (the "Settlement Agreement") which provides, among other things, that concurrently with the execution of the Settlement Agreement, AC and Moorpork RV shall execute this Covenant Agreement and deliver it to the City for recording upon the City's approval of Conditional Use Permit 2012-03 (the "CUP") for the property described on Exhibit "A" (the "Property") that is owned by AC, and Moorpark RV's and AC's written approval of all conditions to the CUP. B. The City approved the CUP on March , 2013. C. Moorpark RV and AC confirmed their approval of the conditions to the CUP by means of an affidavit dated , 2013. C-2 12853-0001\1527637v9.doc 32 NOW, THEREFORE, in consideration of the foregoing recitals, and other considerations, the sufficiency of which is hereby acknowledged, the Parties hereto hereby agree as follows: 1. Without limiting the contents of the CUP or Settlement Agreement, AC and Moorpark RV hereby expressly agree that: A. The CUP shall expire no later than March 31, 2023 (the "Termination Date"). No vested right to any use or uses provided by the CUP shall apply or exist beyond the Termination Date, and AC and Moorpark RV hereby expressly waive, release and forever forfeit any such vested right, or any claim of entitlement of whatever kind, to continue such use or uses beyond the Termination Date. AC and Moorpark RV, and any successor in interest to the Property or to Moorpark RV shall not be entitled to any extension to the time limit imposed by the CUP, and shall not seek any such time extension or a new Conditional Use Permit or other land use approval to continue recreational vehicle storage uses on the Property, regardless of the land use, zoning, and Moorpark Municipal Code provisions that may be applicable to the Property at any time. B. The parking, standing or storage of any recreational vehicles, and their equipment or materials of any kind, on the Property, whether in conformance with the CUP or not, shall cease and all such items shall be removed from the Property no later than the Termination Date. C. All barbed and razor wire shall be removed from the perimeter fences and walls of the Property no later than the Termination Date. D. By April 30, 2013, the existing sewage dump facility shall be removed and the sewer capped as required by Waterworks District No. 1. Any replacement sewage dump facility on the Property shall be constructed in compliance with all applicable City, county, state and federal standards and shall be removed by April 20, 2023 in compliance with all applicable City, county, state and federal standards. E. By April 20, 2023, the existing metal and stucco storage building on the Property shall be demolished and all debris removed in compliance with all applicable City, county, state and federal standards. F. On and after the Termination Date, any and all uses of the Property such shall conform to the then applicable zoning requirements of the Property. G. Prior to entering escrow to sell any or all portions of the Property, the business, or both the Property and business, AC and Moorpark RV, or its successors in interest, shall provide any proposed C-3 12853-0001\1527637v9.doc 33 buyer thereto a copy of the CUP, this Agreement and any amendments thereto. AC and Moorpark RV will notify City in writing no less than ten (10) days prior to the close of escrow of the proposed sale or proposed lease of, any or all portions of the Property, business, or both the Property and the business. H. Sections 17.52.020 (Nonconforming Structures), 17.52.040 (Nonconforming uses due to changes in parking requirements), Subsections (A) and (B) of Section 17.52.060 (Other nonconforming uses (no longer permitted)), and 17.52.065 (garage conversions — grandfathered), as currently stated or as hereafter may be amended, shall not apply to the uses or structures on the Property, and reliance upon or adherence to, such provisions is expressly waived, released and forfeited by AC and Moorpark RV. I. After the Termination Date, AC and Moorpark RV, may use the existing office building on the Property for office uses not related to the former contractors' equipment storage yard or the former recreational vehicle storage use of the Property and only in compliance with then applicable zoning permitting requirements and standards, including but not limited to, standards related to use, parking, landscaping, lighting and driveway access. J. Any proposed residential use of the Property shall require a Development Agreement consistent with Chapter 15.40 of the Moorpark Municipal Code, as currently stated or as hereafter may be amended by the City. K. Prior to or after the Termination Date, AC and Moorpark RV may not use the Property for a contractors' equipment storage yard. In addition, AC and Moorpark RV may not use the property for any other use that is contrary to the terms of the CUP or not in compliance with all required permits and approvals as required by the Moorpark Municipal Code. L. Prior to the Termination Date, the Property or any portion thereof, including any structures on the Property, may not be leased for any use or business, other than the recreational vehicle storage business and office uses that do not generate on-site customer traffic to the satisfaction of the Community Development Director as authorized by the CUP. M. City development impact fees shall not apply to the CUP for the current legal non-conforming recreation vehicle use and related office use of the Property but shall apply to any other use of the Property in the future (whether before or after the Termination Date) that requires a discretionary permit or entitlement from the City, including but not limited C-4 12853-0001\1527637v9.doc 34 to, a development agreement, planned development permit, or subdivision map approval. At such time as a discretionary permit or entitlement is approved by City, AC and Moorpark RV, for themselves and their successors in interest, agree 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. Those fees include, but are not limited to, Los Angeles Avenue Area of Contribution Fee, Development Fee, Citywide Traffic Fee, Intersection Improvement Fees, Community Services Fee, Park Fee, Art in Public Places Fee, Air Quality Fee, Library Facilities Fees, Police Facilities Fees, Fire Facilities Fees, Landscape Maintenance Fees, entitlement processing fees, and plan check and permit fees for buildings and public improvements, and such future fees imposed as determined by City in its sole discretion so long as said fee is generally imposed on similarly situated properties. N. Any future changes to the signage, lighting, parking, landscaping, fencing, or other development changes not addressed in this Agreement or in the CUP shall conform to the then applicable City ordinances and zoning for the Property. O. AC and Moorpark RV agree to pay City Two Thousand Three Hundred and Fifty Dollars ($2,350.00) by April 30, 2013 for approximately eight (8) businesses that were leasing space from AC and/or Moorpark RV at 4875 Spring Road for a cumulative time of approximately 47 years and had not paid City Business Registration Permit fees. 2. Enforcement. Successors in interest in the Property or in the recreational vehicle storage business on the Property that are successors to AC and Moorpark RV shall execute the same form of Stipulation as provided in Exhibit B to the Settlement Agreement between the City, AC and Moorpark RV dated March _, 2013, concurrently with taking ownership of the business, the Property or both. In addition, to enable the City to effectuate the termination of the recreational vehicle storage uses on the Property upon the Termination Date of the use as defined in the Settlement Agreement, AC and Moorpark RV, and successors in the business or Property, shall cause to include in all leases of recreational vehicle storage spaces that the leases shall terminate no later than March 31, 2023 and the owners of stored vehicles shall be required to remove their vehicles from the Property on or before that date. 3. Covenants Run With the Property and Bind AC, Moorpark RV and Successors-in-Interest. This Covenant Agreement shall encumber, bind and "run with" the Property, and shall bind AC, Moorpark RV and their successors and assigns, and all successors-in-interest to any portion of or interest in the Property, all for the benefit of the City. C-5 12853-0001\1527637v9.doc 35 4. Time of Essence. Time is of the essence of every provision hereof in which time is a factor. 5. Notices. Any and all notices given hereunder shall be in writing and shall be delivered by certified mail, return receipt requested, to the City and to AC/Moorpark RV at the addresses in the top left corner of the first page of this document, except that any party (or its successor or successor-in-interest, as applicable) may change its address for notices by a notice given under this Section. IN WITNESS WHEREOF, the undersigned have executed this Agreement. CITY OF MOORPARK, CALIFORNIA AC CONSTRUCTION, INC. By: By: Janice S. Parvin, Mayor Banny Anderson, President Attest: MOORPARK RV, LLC By: By: Maureen Benson, City Clerk Banny Anderson, Manager [ALL SIGNATURES OF PARTIES MUST BE DULY ACKNOWLEDGED BY A NOTARY PUBLIC] C-6 12853-0001\1 527637v9.doc 36 State of California ) County of Los Angeles ) On , before me, (insert name and title of the officer) Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) State of California ) County of Los Angeles ) On , before me, (insert name and title of the officer) Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) C-7 12853-0001\1527637v9.doc 37 State of California ) County of Los Angeles ) On , before me, (insert name and title of the officer) Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) C-8 12853-0001\1 527637v9.doc 38 EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY (Attached.) C-9 39 12853-0001\1527637v9.doc