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HomeMy WebLinkAboutAGENDA REPORT 1990 1219 CC REG ITEM 11C 71a,100(a) MOORARK ITEM. I i- I e s BERNARDO M. PEREZ ,ate � STEVEN KUENY Mayor o `tea CityManager SCOTT MONTGOMERY 4411011;/ CHERYL J. KANE Mayor Pro Tem ��/ / City Attorney ELOISE BROWN ;r``' . �u PATRICK RICHARDS,A.I.C.P. Councilmember o9-�� o Director of CLINT HARPER, Ph.D. oq Community Development Councilmember Eo R. DENNIS DELZEIT PAUL W. LAWRASON,Jr. City Engineer Councilmember JOHN V. GILLESPIE LILLIAN KELLERMAN Chief of Police City Clerk RICHARD T. HARE City Treasurer DORPARK, CALIFORNIA MEMORANDUM aty CCoufcIllMeeting / of /___ _1995! To: The Honorable City Council 4 ACTION: .at From: Patrick J. Richards, Director of Community Development lrir Ey �C��f•Kdi/ Date: November 27, 1990 (City Council Meeting 12-19-90) Subject: PLANNED DEVELOPMENT PERMIT Nos. 1062/1063 (The Embassy Group Inc.) - Time Extension Request SACKGROUND The applicant for PD1062 and PD1063, the Embassy Group Inc. has requested another time extension for use inauguration regarding the above PD's (see attached November 16, 1990 letter). Time extensions for this project have been granted by the City since August of 1988. These extensions began with six months limits by the Director of Community Development until those opportunities expired. Additional time extensions were granted by the City Council beginning in March of 1989. Eventually an agreement was entered into between the City and Embassy on December 7, 1989 (see attachment). DISCUSSION The December 7, 1989 agreement noted above, states that "in no event shall this extension for use inauguration extend past February 28, 1991". Within the November 16, 1990 letter from the Embassy Group Inc., they are requesting an additional six (6) months extension to the December agreement. They are also requesting "fast tracking review" of their grading, street plans etc. Also, they are requesting a reduction of the waterfall concept at the corner of Spring and Tierra Rejada Roads. Of some concern to staff, over and above the time extension request, is the statement that at least 40% of the proposed neighborhood shopping center must be preleased to begin their project. At the present time, public roadway improvements are proceeding in an effort to convert Tierra Rejada Road from two lanes to a four lane divided highway. This project does provide a segment of this overall improvement goal. Also, now that decisions have been made regarding the Carlsberg Specific Plan area; the roadway improvements for Spring Road can proceed. This project can provide needed roadway improvements which will enhance adjacent efforts. 799 Moorpark Avenue Moorpark, California 93021 (805) 529-6864 STAFF RECONNENDATION That the City Council approve a six (6) month extension of the December 7, 1989 agreement until August 31, 1991 subject to the Embassy Group Inc. agreeing to amending the existing December 7, 1989 agreement so as to accomplish the following: 1. That Embassy Group Inc. shall record LDM-11, a parcel map, approved by Resolution No. 87-418 meeting all condition requirements of this resolution as stated "prior to recordation", no later than February 28, 1991 or when the amended agreement is signed by the City, whichever occurs first. 2. That Embassy Group Inc. shall provide a cash deposit with the City sufficient to guarantee the construction of all public improvements along Tierra Rejada and Spring Road's to be the satisfaction of the City Engineer. 3. That prior to the City signing any amended agreement the Embassy Group Inc. shall pay for all additional staff time (including City Attorney and City Engineer) in the preparation of this extension request and any amended agreement documents. PJR27NOV90 Attachment: Embassy letter of November 16, 1990 Agreement between City and Embassy Plaza No. 16 Huy iE 'EU ciIlcaLu EMBHss,. P.2-2 THE November 16 , 190 EMBASSY GKOLIP INC Steven Kueny CITY OF MOORPARK 799 Moorpark Avenue Moorpark, CA 03021 Re: Peach Hill Plaza Embassy Plaza No. 16 Dear Steve: I would like to update you as to the status of our above referenced project . As you know, we have struggled over the past three years to get this project built and thought we had finally succeeded when the final approvals were obtained in June. However, by the time we were finally allowed to proceed, our financing with Citicorp Real Estate , Inc. had expired. We had been in discussions with them since March regarding a renewal , but due to the softening economy and the length of time it has taken to obtain approvals, they would not renew our loan. We have spent the past several months negotiating a new loan commitment from them and they have finally agreed to do so. They will fund a portion of the loan to allow us to revise the grading plan , start on the drawings for the approved pad building and actually commence grading. In order to actually construct the center we will have to meet several new conditions. 1 . The City must extend the Development Agreement at least six more months to insure that we will have enough time to commence construction before it expires . 2. We need to be 40% preleased in a softening economy and with two new neighborhood centers being planned. 3. We will need to fast track the review of grading, street plans , etc. through the appropriate agencies . We cannot afford the delays that we have encountered in the past . l?Z; ._C D I ' 16 •��� 1D: CHIL4Wl-EMm _ In addition , based on our project costs we are asking to scale down the waterfall concept proposed for the corner and work with the City for assistance with the landscaping. It was suggested to us that the City or civic groups such as the Boy Scouts might plant trees on the site. We would welcome any assistance. Please understand that these changes will enable us to maintain the design and integrity of the center as well as provide the public improvements such as the traffic signal , waterline , etc. that we are required to install . If we cannot work together with you to implement these changes , the lender will take back the property and it will remain vacant. We have spent a tremendous amount of time, energy and money on this project and do not want our efforts to be in vain. We need to know as soon as possible if we will be granted an extension. We will not spend additional monies until we know whether or not we have an extension since our financing is contingent upon it . I apologize for not staying in contact with you, but we did not think we would be able to obtain financing until several weeks ago and wanted to have something concrete to discuss . I hope we will now be able to build this shopping center. I look forward to hearing from you. Sincerely,, -11-13.16:la enneth Shishido KWS/ks cc: Patrick Richards , City of Moorpark AGREEMENT This Agreement is made and entered into this 7th day of December , 1989 by and between the City of Moorpark , a general law municipality, ( "City" ) and Embassy Plaza No. 16 , Ltd. , a California Limited Partnership ( "Developer" ) . RECITALS A. Developer is the developer of both Planned Development Permits PD-1062 and PD-1063 and Land Division No. 11 . On September 16 , 1987 , the Moorpark City Council approved Resolutions No. 87-416 , 87-417 and 87-418 , adopting the findings contained in the staff report dated July 6 , 1987 , and approved the above development entitlements . B. On August 4 , 1988 , the Moorpark Director of Community Development granted a six ( 6 ) month extension for both PD-1062 and PD-1063 at the request of Developer . A new expiration date of March 16 , 1989 was established . On January 23 , 1989 , Developer requested another extension of six ( 6 ) months from the Director of Community Development pursuant to condition No. 4 of Resolutions No. 87-416 and 87-417 . The request was denied by the Director. On March 15 , 1989 , the Moorpark City Council considered Developer ' s request for an additional six ( 6 ) month time extension to PD-1062 and PD-1063 . On March 15 , 1989 , the Moorpark City Council approved a six ( 6 ) months extension so as to require use inauguration no later than September 16, 1989 . C. On August 28, 1989 , Developer requested an additional time extension from the Moorpark City Manager . The request was placed before the Moorpark City Council at its September 8 , 1989 regular meeting . The Council took no action on the request for extension. D. On August 2 , 1989 the Moorpark City Council approved LDM-11 for final recording . E. The property owner of both PD-1062 and PD-1063 is Developer , although the applicant for PD-1063 was National Convenience Stores Incorporated. TERMS In consideration of the mutual covenants and premises contained herein, City and Developer agree as follows : -' - CJK/AGR62649 ( 12/12/89 ) 1 . City agrees : A. To extend use inauguration of PD-1062 and PD-1063 for twelve ( 12 ) months from the approval date of the minor modification to PD-1063 , as described in 1 . B. , below, or twelve ( 12 ) months from the date the application for a major modification to PD-1062, as described in 1 .C. , below, is deemed complete by the Director of Community Development , whichever is later ; but in no event shall this extension for use inauguration extend past February 28, 1991 . City further agrees that a convenience store located in PD-1063 may operate between the hours of 6 : 00 a .m. and 12 : 00 midnight . Except as expressly provided in this subsection, none of the conditions of approval of PD-1062 as approved by Resolution No. 87-416 and PD-1063 as approved by Resolution No. 87-417 are modified by this Agreement. B. To process a minor modification to PD- 1063 for an increase of the approximate 3090 square foot one-story, free-standing building to an approximate 6700 square foot one-story, free-standing building , the elimination of the gasoline service area and the prohibition of gasoline sales . The modified building must be for retail and/or office uses only but not restaurant use and must meet City ' s parking requirements as well as include a City approved entry statement at the corner of Spring Road and Tierra Rejada Road ( southeast corner of the site) and have a minimum 30 foot setback from the right-of-way of both street frontages. The building plans and exterior elevations must be consistent with the buildings originally approved in PD- 1062 . A final decision on said minor modification shall be made by the City Council no later than thirty ( 30 ) days from the date the application for said minor modification is deemed complete by City ' s Director of Community Development . C. To process a major modification to PD- 1062 for an approximate 7800 square foot one-story, free- standing building . The new building must have a minimum 30 foot setback from the right-of-way of Spring Road and must meet City ' s parking requirements . The building plans and exterior elevations must be consistent with the buildings originally approved in PD-1062 . A final decision on said major modification shall be made by the City Council no later than one hundred twenty ( 120 ) days from the date the application for said major modification ( the "Application" ) is accepted as complete by City ' s Director of Community Development . The determination as to whether the Application is complete shall be made by the Director within fifteen ( 15) days after it is received from Developer pursuant to subsection 2 .A, below. -2- CJK/AGR62649 ( 12/12/89 ) The City agrees that it shall consider approval of a minimum 7500 square foot , one-story, free-standing building ( the "Building" ) . City also agrees not to make changes to the conditions of approval of PD-1062 , as approved by Resolution No. 87-416 , as part of the major modification, except those that are specifically related to the Building. These exceptions include existing Community Development Department Condition Nos. 10 , 13, 27 , 30, 39 and the addition of conditions relative to a performance bond, mitigation measure monitoring , and parks and art in public place fees . City further agrees that as part of the Application Developer is not required to submit new or additional information and/or exhibits for the following items so long as Developer provides a written statement that there have been no changes to any of the items since their submittal as part of PD-1062 : 1 . Tree Report . 2 . Biological Report . 3 . Archaeological Report . 4 . Noise Study. 5 . Preliminary Soils Report . 6 . Conceptual Grading and Drainage Plan . 7 . Preliminary Title Report and Public Easement Certification. 8. Soils Report for Septic System. 9 . Well Water Quality and Availability Report . 10. Air Emission Data. 11. Materials and Colors Board (so long as the Developer states that the same materials and colors of the previously approved building are proposed to be used) . D. To process both of the aforementioned modification applications under the code requirements that were in effect on October 1 , 1987 , except as otherwise provided in this Agreement . E. That upon the application for the major modification to PD-1062 being deemed complete and receipt by City of a hold harmless and indemnification agreement acceptable to City, Developer may submit for plan check , at its sole cost and risk and with no guarantee of approval , the building plans for PD-1062 and PD-1063 . F. Within thirty ( 30 ) days after Developer has received a certification of occupancy for the three buildings in PD-1062 and PD-1063, City shall reimburse -3- CJK/AGR62649 ( 12/12/89 ) Developer $32 , 500 of the $130 , 000 deposited by Developer pursuant to City Engineer ' s Standard Land Condition Nos . 18 of PD-1062 and PD-1063 . The remaining amount of $97 , 500 shall be reimbursed when deemed appropriate by the City Council consistent with reimbursement policy for the Spring Road/Tierra Rejada Road AOC. G. As approved by the Director of Community Development , to allow developer to modify a portion of tn:e currently required block wall at or near the top of the hill ( at or near the property line ) to a combination of block wall and wrought iron, including a minimum of three courses of block and pilasters . H. After the public improvement plans are signed for PD-1062 and PD-1063 , other than modifications to the approved public improvement plans referenced in a letter to Developer dated October 16 , 1989 from John Knipe , Assistant City Engineer , no modifications to those plans shall be required by City which result in additional construction costs to Developer unless City reimburses Developer for the reasonable costs of the additional construction and of the redesign of the approved plans . Any reimbursement shall occur thirty ( 30 ) days after any modified improvements are installed and the costs have been submitted to City for review and approval . 2 . Developer agrees : A. Within thirty ( 30 ) days of execution of this Agreement , to file the applications for a minor modification to PD-1063 and a major modification to PD-1062 together with sufficient supporting documentation to ensure said applications can be deemed complete by City ' s Director of Community Development . Said applications shall be consistent with Section 1 of this Agreement , and Developer further agrees to modify landscaping and trash enclosures for both PDs to City ' s satisfaction . B. To pay all fees required under current City fee schedules for processing the aforementioned modification applications . C. That the modified building in PD-1063 shall be for retail and/or office uses only but not restaurant use . D. That there shall be no gasoline service area nor gasoline sales in either PD-1062 or PD-1063 . -4- CJK/AGR62649 ( 12/12/89 ) G. That there are no other unresolved matters related to PD-1062 , PD-1063 or LDM-11 . F. Not to commence the building or work authorized by any building permit for PD-1063 until a final decision on the aforementioned major modification to PD-1062 has been made by the City Council . 3 . Attorney ' s Fees : The parties agree that in any litigation arising from this Agreement , each party shall be responsible for its own costs, including attorneys fees , and not liable for the other party ' s. Notwithstanding the foregoing , if some person or entity other than Developer initiates litigation regarding this Agreement , through a complaint , cross-complaint or otherwise , then the City, at its sole discretion, may tender its defense of said third party litigation to Developer . If City elects to tender said defense , Developer shall bear all costs , including attorneys fees , in defending City and shall pay any settlement or judgment against City , without any right to reimbursement from City. If City elects not to tender said defense, Developer shall reimburse City for all costs, including attorneys fees, incurred by City in defending said third party litigation and any payment to be made by City to settle, or satisfy judgment in, the litigation, within fifteen ( 15 ) days after delivery by City to Developer of an invoice or comparable documentation that the costs have been incurred or the payment is due. 4 . Indemnification : The Developer shall indemnify , defend and hold harmless , City and its officers , employees , servants and agents from any and all claims , actions , suits , proceedings , losses, liabilities , costs , expenses and obligations for damage whatsoever , including injury or death to any person and injury to any property, in any way connected with, related to, or arising from, any act or omission of Developer or any of its officers , employees , servants , agents or contractors in the performance of any obligation pursuant to this Agreement , except such damage that is caused by the sole negligence of City or its officers , employees , servants or agents . -5- CJK/AGR62649 ( 12/112/89 ) 5. Miscellaneous Provisions : A. 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: City of Moorpark 799 Moorpark AvenueIlk Moorpark , Cakufirbua. 93021 Attn : City Manager TO: Embassy Plaza No. 16, Ltd. 800 South Figueroa Street , Suite 960 Los Angeles , California 90017 Attn : Mr . Ken Shishido Either party may , from time to time , by written notice to the other , designate a different address which shall be substituted for the one above specified . Notices , payments and other documents shall be deemed delivered upon receipt by personal service or upon deposit in the United States mail . B. This Agreement constitutes the entire agreement of the parties concerning the subject matter hereof and all prior agreements or understandings , oral or written, are hereby merged herein. This Agreement shall not be amended in any way except by a writing expressly purporting to be such an amendment , signed and acknowledged by both of the parties hereto. C. 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 shall not be interpreted against either party on the ground that the party prepared the Agreement or caused it to be prepared. D. No waiver of any provision of this Agreement shall be deemed , or 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 executed in writing by the party making the waiver . -6- CJK/AGR62649 ( 12/12/89 ) E. The City ' s failure to perform its obligations under this Agreement shall not constitute a default under this Agreement if the nonperformance is the result of a court order . The Developer ' s obligations under this Agreement shall be abated during the period of such court order . F . The position taken by City in any litigation brought by or against City shall not constitute a default under this Agreement , irrespective of the fact that City ' s position may be adverse to Developer ' s richts under this Agreement . G. This Agreement is made , entered into, and executed in Ventura County, California, and any court action arising from this Agreement shall be filed in the applicable court in Ventura County, California. F. The captions and headings 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 . I . This Agreement shall be binding upon the parties and their heirs , executors , representatives , predecessors , successors , assigns , agents , officers and employees. J. This Agreement shall remain in effect until all the terms have been fully satisfied . K. This Agreement shall become effective upon the effective date of the approval by the City Council of a Minor Modification to PD-1063 to increase the size of the building from 3090 square feet to approximately 6700 square feet . -7- CJK/AG?62649 ( 12/12/89 ) IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized officers the day and year first above written . CITY OF MOORPARK EMBASSY PLAZA NO. 16 , LTD. rn, at 07..,---___ Mayes ,,1 Managing General Partner ATTEST: :_..--- • �f(��Ct„!. �/:1% =i.(i,,is_. City Clerk c ( faillicit STATE OF CALIFORNI j) COUNTY OF _A5 2 (It S 1 SS. a On I�ECL�L1 Bet 14 I q , before me, the undersigned, z a a Notary Public in and for said County and State,personally appeared s r R AA/K CThw56n 1 o y , personally known to me ' su E (or proved to me on the basis of satisfactory evidence)to be the general • 'N] OFFICIAL SEAL u a partner(s) of the limited partnership that executed the within instru- c �( CHRISTINA M. DAUGHERTY s w ment, and acknowledged to me that such partnership executed the �� +��K Notary PUD6e�alllomy P < t=.. same. �q� S LOS ANGELES COUNTY CO 4 z o / / � My Comm. Esp. M . 16. 1990 III p - . . . . _ _ _ - . a w . . F fo I Signature ��/�/- .4,6741---.\,, �,�, ,/ _ /i YI/74/4 if. o ' Name (Typed or Printed) P a Notary Public in and for said County and State U A G FOR NOTARY SEAL OR STAMP -8- CJK/AGR62649 ( 12/12/89 ) , DEC 18 '90 16:47 CHICAGO/EMBASSY P.2/2 THEE ecc,/ December 17, 1990 Linl�llJ 7 T GROUP INC Patrick Richards —VIA FACSIMILE— CITY OF MOORPARK 799 Moorpark Avenue Moorpark, CA 93021 Re: Peach Hill Plaza Request for Six Month Extension Dear Pat : We received a fax from you on the memorandum to City Council regarding our request for a time extension for PD 1062 and 1063 . At this time we would like to request a continuance from the December 19th City Council Meeting to the next meeting in early January. While we would like to move forward on this matter as soon as possible, we cannot accept the additional conditions which planning staff has recommended without consulting with our lender. With the holiday season around the corner and taking into account the usual turnaround time we have experienced with Citicorp, we should be able to respond to you prior to the next City Council Meeting in January. I look forward to speaking with you soon. Sincerely, 141-S-1-6 Kenneth Shishido KWS/mmc 6U6 South Fowioa Stuet uile 960 los An00les.CA 9007) 77J 6229626